Court File and Parties

CITATION: Wangler v. Fort Erie (Town), 2010 ONCA 658

DATE: 20101008

DOCKET: C51920

COURT OF APPEAL FOR ONTARIO

BEFORE: Goudge, Lang and Karakatsanis JJ.A.

BETWEEN

Peter Wangler

Applicant/Appellant

and

Corporation of the Town of Fort Erie

Respondent/Respondent in Appeal

COUNSEL:

John A. Crossingham, for the appellant

Paul De Melo, for the respondent

HEARD: October 4, 2010

On appeal from the judgment of Justice John Cavarzan of the Superior Court of Justice dated February 17, 2010.

Endorsement

By The Court:

[1] The appellant focused his case on whether there is a conflict between the provisions of the EPA and its Regulations, particularly the exemption provided in s. 2(3)(c) of Reg. 347, and the provisions of the respondent’s by-law requiring that a property owner keep the property clean and free of refuse.

[2] In our view, the application judge correctly found no conflict. Compliance with one does not mean necessary non-compliance with the other.

[3] The exemption relied on by the appellant requires that, to avoid being designated waste, demolition materials must be delivered to the permanent premises for use as construction materials. It is implicit that when materials are delivered to a site for use in construction, this use happens within a reasonable period of time. The exemption does not extend to indefinite storage prior to such use. Nor is the property owner’s intention to ultimately use the material for construction purposes enough to make the exemption applicable.

[4] The municipality’s requirement for compliance with its by-law is that the property owner remove refuse within a reasonable period of time after notification. The Municipal Act gives the municipality wide scope in establishing what is reasonable in the particular circumstance. A property owner complies with this requirement by using demolition materials for construction within a reasonable time following their delivery to the property. If the demolition materials are re-used within a reasonable period of time under s. 2(3)(c) of the EPA Regulation, they are not “waste” and therefore not “refuse” within the definition of the by-law and thus do not require removal.

[5] In summary, one can bring oneself within the exemption in s. 2(3)(c) of the Regulation and be in compliance with the by-law. Compliance with one does not necessarily mean non-compliance with the other. There is no conflict.

[6] The appeal must be dismissed. Costs to the respondent fixed in the amount of $7500 inclusive of disbursements and applicable taxes.

RELEASED: OCT 08 2010 (“S.T.G.”)

“S. T. Goudge J.A.”

“S. E. Lang J.A.”

“Karakatsanis J.A.”