(Report dated May 26, 1998, addressed to Toronto Community Council, from the Corporation Counsel.)

Subject:794 Bathurst Street - Court of Appeal decision from the Judgment of Madam Justice Kitely dated September 27, 1995

Purpose:To be received for information

Funding Sources, Financial Implications and Impact Statement:

Not applicable

Recommendations:

To be received for information

Council Reference/Background/History:

Comments and/or Discussion and/or Justification:

On March 19, 1998 the Ontario Court of Appeal heard an appeal from the decision of the Ontario Court (General Division) dated September 27, 1995. This was an appeal by the City of Toronto from an order declaring that the restaurant use of premises municipally known as 794 Bathurst Street, Toronto was permitted to include as an accessory use a large dance floor and stage along with live entertainment. The dance floor area has a capacity of 195 people. The City submitted that by the addition of the dance floor and stage and the provision for live entertainment, the use of the premises was transformed from a "restaurant" use to an "entertainment facility" which was not permitted in this area of the City.

By way of background, the City had issued a building permit for a restaurant which did not show, on the permit drawings, any area for a dance floor and stage. The plans submitted in support of a building permit indicated a dining facility with an oval-shaped bar and a seating capacity of 370 people with tables and chairs located throughout the premises. Had the applicant disclosed an intention to include as part of the restaurant use a dance floor and stage, the City would not have issued the permit.

The Court of first instance found that the entertainment use of the restaurant was "accessory" to the restaurant use. It did not accept the City's argument that the restaurant had been transformed into an "entertainment facility" as defined in the City's Zoning By-law.

Prior to the hearing of the original application, the City enacted an Interim Control By-law which prohibited dance floors and stages in any restaurant in an area of the City which included 794 Bathurst Street. The Judge, on the Application appealed from, took offence at the City's enactment of the Interim Control By-law, characterizing the City's actions as "an affront to the judicial system".

The Court of Appeal overturned the Ontario Court General Division decision. They found firstly, that there was no proper evidentiary foundation for impugning the City's conduct or motives in enacting the Interim Control By-law. Secondly, they found that the use of the premises with the dance floor and stage along with live entertainment was not a "restaurant use" within the meaning of the City's Zoning By-law, but that of an "entertainment facility" so defined. A copy of the decision is attached for reference.

This report is for information.

Conclusions:

Contact Name:Thomas H. Wall

Telephone: (416) 392-1561

(A copy of the attachment mentioned in the foregoing report, is on file in the office of the City Clerk.)

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