794 Bathurst Street - Court of Appeal Decision
(Midtown)
The Toronto Community Council recommends that:
(1)the following report (May 26, 1998) from the Corporation Counsel be received for information;
(2)City Council record its appreciation for the diligent and outstanding work of the professionals within the
City's Legal Department in this successful appeal at the Ontario Court of Appeal;
(3)the Chief Building Official be requested to keep the Councillors of Midtown, Downtown and
Trinity-Niagara advised of enforcement actions concerning this address, in terms of use, occupancy,
construction and signage, and;
(4)the City Clerk be requested to forward copies of Council's actions to the Unit Commander of Police
Division No. 14, the Fire Chief, the Medical Officer of Health and Toronto Licensing.
Purpose:
To be received for information
Funding Sources, Financial Implications and Impact Statement:
Not applicable
Recommendations:
To be received for information
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.
Contact Name:
Thomas H. Wall
Telephone: (416) 392-1561
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(A copy of Court of Appeal Decision from the Judgment of Madam Justice Kitely dated September 27, 1995 was
forwarded to all Members of the Toronto Community Council with the agenda for its meeting on June 24 and 25,
1998, and a copy thereof is on file in the office of the City Clerk.)
