What is the test for determining whether there is evidence of ongoing or recent use of the subject building contrary to the zoning by-law?
British Columbia, Canada
The following excerpt is from North Pender Island Trust Committee v. Rosebay Investments Ltd., 2003 BCSC 1277 (CanLII):
This is not a case where eroding memories, lost records, or disappearing witnesses are of concern. This action does not involve evidence of how the encroaching building was used either when the action was commenced or earlier. The use of the subject building has in fact changed to now involve the operation of a bed and breakfast business. I accept that counsel for the plaintiff is correct in stating that the primary issue at trial is whether there is ongoing or recent evidence of use contrary to the zoning by-law. If a breach is established, there is a right to an injunction. [Langley v. Wood, supra.] DOES THE BALANCE OF JUSTICE REQUIRE DISMISSAL?
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