Court of Appeal for Ontario
Before: Simmons, van Rensburg and Roberts JJ.A.
Between:
The Corporation of the City of Pickering and Kyle Bentley as the Chief Building Official of the City of Pickering (Respondents)
and
James Slade and Nancy Slade (Applicants/Appellants)
Counsel: James Slade and Nancy Slade, in person N. Cameron Murkar, for the respondents
Heard and released orally: February 10, 2016
On appeal from the judgment of Justice H.K. O’Connell of the Superior Court of Justice, dated March 10, 2015.
ENDORSEMENT
1The appellants appeal from a judgment prohibiting them from depositing additional fill on their property; requiring them to remove deposited fill such that the grade and elevation of their property complies with a drainage and grading drawing approved when their building permit was issued; and granting certain ancillary relief.
2The appellants raise multiple grounds of appeal challenging the procedures adopted in hearing the application, the timeliness of the application, the interpretation of the bylaw underpinning the application and the application of the bylaw in the face of the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1. They also seek to file fresh evidence on appeal.
3We see no merit in this appeal. The appellants have not established procedural unfairness or violation of an applicable limitation period. The bylaw underpinning the City’s injunction application prohibits the deposit of fill without a permit. Fill is broadly defined and includes soil. We see no basis on which to interfere with the application judge’s conclusions that the appellants have deposited, or permitted the deposit of, fill beyond that allowed under their building permit and that, as of the date of the hearing, the appellants’ operations did not “resemble a normal farming operation” that might have engaged any applicable exemption.
4Further, with respect to the appellants’ assertion that they intended to commence farming operations, as the application judge noted, as of the date of the hearing, there was no evidence that had been done. Nor had the appellants applied for an order under s. 6(2) of the Farming and Food Production Protection Act. The mandatory order granted by the application judge is authorized under s. 38 of the Building Code Act, 1992, S.O. 1992, c. 23.
5Based on the record before us, we are not satisfied the application judge erred in not addressing any minor amount of fill that may have been deposited on the appellants’ land by the City.
6The appellants’ application to file fresh evidence is dismissed. Apart from any other considerations, we see no possibility that the evidence adduced would have affected the decision under appeal.
7The appeal is therefore dismissed.
8Following questions from the panel during the oral hearing, the City withdrew its request that we make an order under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
9Costs of the appeal are to the respondent on a partial indemnity scale fixed in the amount of $7,500 inclusive of disbursements and applicable taxes.
“Janet Simmons J.A.”
“K. van Rensburg J.A.”
“L.B. Roberts J.A.”