Dealing with a “Legal Non-Conforming Use” in Ontario

There are a few issues with “legal non-conforming” considerations. The basic principle is that municipal by-laws cannot be retroactive.

If a building is constructed in accordance with applicable zoning and building by-laws, then you are compliant. This is all that can be expected. The building is then occupied and that use continues, which, of course, is what is expected. Then, the municipality passes a new by-law. The older building wouldn’t meet today’s more stringent standards. But, by-laws are not retroactive, so they don’t apply.

Consider a restaurant that has operated for 50 years. The new by-law changes the zoning to “industrial uses”. The restaurant may continue. The difficulty is if the restaurant gives up on its restaurant use. The use must be continuous. That includes being shut down for renovations, because the same use continued. If you are looking to buy the restaurant, there are several issues to be investigated:

  1. What were the zoning and building by-laws when it was built?
  2. Was it in compliance at that time?
  3. Was the use continuous or was it interrupted?
  4. If it was interrupted for a period of time, was that interruption justifiable?
  5. If we have affirmative responses, then we can transfer the property to a new Buyer and maintain the status of the property as “legal” because it always was, and “non-conforming” because it wouldn’t meet current standards,
  6. When did the current by-law and any other by-laws affecting the property come into force?
  7. Insurance endorsements may be required so that the insurer will pay to meet current standards, concerning setbacks,
  8. Title insurance should be obtained including full disclosure of the use.

All the evidence you uncover should be copied and appear in your file, so that it can be retrieved 20 years from now, or 40 years for that matter.

It is important to note that being shut down simply due to Covid will not interfere with the non-conforming use exception.

Brian Madigan LL.B., Broker

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