Can a non-conforming commercial use in a residential neighbourhood increase its intensity of use?

The court stated that the decision in Central Jewish Institute v. City of Toronto, 1948 CanLII 3 (SCC), [1948] S.C.R. 101, had been expanded to sanction increases in intensity of use so long as the same type of use is continued. However, the court recognized that although continuing the precise pre-existing activity, even at an intensified level, is clearly protected, the intensification may be of such a degree as to create a difference in kind. While in one sense the “use” has continued, in another sense its “character” has been so altered as to become, in terms of its impact on the community, an altogether different use. In such a case, the protection would not necessarily continue. However, where a non-conforming commercial use in a residential neighbourhood has increased its business, it should not ordinarily be penalized for its success by losing its “acquired right” to operate, even if a by-product of that success is some increased traffic and noise.