Executive Summary: Key Legal and Evidentiary Issues

• Dispute over whether encroaching structures were expressly or tacitly approved by the municipality in 1998.

• Site plan and building permit drawings did not clearly depict the encroachments as encroachments.

• Appellant argued that past municipal approvals amounted to legal authorization of the structures.

• Court held that the original owner and architects bore responsibility to identify and disclose encroachments.

• No palpable and overriding error found in the application judge’s factual findings.

• The city’s 2006 encroachment policy was held applicable, requiring an encroachment agreement.

Facts and procedural history

2708959 Ontario Inc. owned a property at 7 Cobourg Street in Stratford, Ontario, which included several structures—such as a planter, an access ramp, a granite step, and a garage ramp—that extended onto the municipal road allowance. These structures were built between 1998 and 2001 by the previous owner, James Morris. While they were visible on some drawings and formed part of the architectural and structural design, their legal status came into question when the City of Stratford first objected to the encroachments in 2021.

The City required the current owner to enter into an encroachment agreement in accordance with a policy it adopted in 2006. This policy mandates property owners to formalize any encroachments on city land through registered agreements, unless the structures had been previously approved. 270 refused to accept the terms proposed by the City and filed an application seeking a declaration that the encroachments were already approved or that the City was barred from challenging them. The application judge dismissed the request, and 270 appealed.

Legal issue on appeal

The appeal focused narrowly on whether the application judge made a palpable and overriding error of fact in concluding that Stratford had not approved the encroaching structures in 1998 when it issued building permits and approved the site plan. The appellant abandoned other grounds, including arguments based on legal non-conforming use and estoppel.

Evidence and findings

270 argued that the original site plan and building permit drawings were stamped and approved by Stratford, and that the Certificate of Occupancy and Compliance further confirmed approval of the encroachments. The appellant emphasized that the structures were integral to the building’s design and function and had gone unnoticed by the City for over two decades.

However, the Court of Appeal found no error in the application judge’s reasoning. The judge had reviewed the drawings and noted that key features—like the granite step, the garage parking space, and the concrete planter—were either not depicted or not clearly marked as encroachments. He emphasized that approval would have required more than passive acceptance and that the responsibility to disclose these features fell on the original developer and architects. The judge further rejected the argument that approval could be inferred from the absence of objections or later compliance confirmations.

Outcome and commentary

The Court upheld the application judge’s findings, noting that the City’s past practices required express approvals for encroachments and that no such approval had occurred. While the court recognized that both parties had acted in good faith, and that 270 inherited the situation innocently, it held that a formal encroachment agreement was still required under municipal policy.

The appeal was dismissed, and 270 was ordered to pay costs to the City of Stratford in the amount of $8,701.54. While the court offered a suggestion that the City might exercise leniency in future negotiations, it did not disturb the legal conclusion that the structures were unapproved encroachments requiring a formal agreement.