Court of Appeal for Ontario
Before: Strathy C.J.O., Pardu and Brown JJ.A.
Between
The Corporation of the Town of Georgina
Applicant (Respondent)
and
Marvin Blanchard and 1124123 Ontario Limited
Respondents (Appellants)
And Between
Marvin Blanchard, 1124123 Ontario Limited and Baldwin 22, Inc.
Counter-applicants (Appellants)
and
The Corporation of the Town of Georgina, Her Majesty the Queen in Right of Ontario and The Ontario Aggregate Resources Corporation
Counter-respondents (Respondents)
Counsel:
Al Burton, for the appellants
John R. Hart and C. Kapelos, for the respondent, The Corporation of the Town of Georgina
Sarah E. Valair, for the respondent, Her Majesty the Queen in Right of Ontario
Heard: November 7, 2016
On appeal from the order of Justice Barry G. A. MacDougall of the Superior Court of Justice, dated February 12, 2015.
ENDORSEMENT
Overview
1The appellants, 1124123 Ontario Limited (“112 Ontario”) and Marvin Blanchard, appeal the order of the application judge granting the respondent, The Corporation of the Town of Georgina (the “Town”), a permanent injunction. That injunction restrains the appellants from contravening the Town’s Site Alteration By-law in connection with property owned by 112 Ontario at 6017 Smith Blvd., Georgina (the “Property”).
2Blanchard held a licence under the Aggregate Resources Act, R.S.O. 1990, c. A.8 (the “Act”), to extract aggregate from two sections of the Property (the “Licence”). He stopped extracting aggregate in 2007. On June 12, 2007, the Ministry of Natural Resources issued a Rehabilitation Order to Blanchard to comply with s. 48(1) of the Act, which requires a licencee to “perform progressive rehabilitation and final rehabilitation on the site in accordance with this Act, the regulations, the site plan and the conditions of the license or permit to the satisfaction of the Minister.”
3On October 21, 2013, the Minister revoked Blanchard’s Licence.
4Under the terms of the Licence, Blanchard was required to perform a “final rehabilitation” of the Property. Blanchard took the position that he needed to truck fill onto the Property to rehabilitate it in accordance with the Act. The Town took the position that the Site Alteration By-law prohibited Blanchard from bringing fill on to his Property unless the Licence permitted him to do so. Ontario took the position that the Licence does not permit Blanchard to import fill to rehabilitate the Property.
5The Town sought and obtained a final injunction restraining Blanchard from contravening its Site Alteration Bylaw, including prohibiting him from importing fill onto the Property.
6The appellants appeal, seeking to set aside the final injunction. They advance two main grounds of appeal.
First Ground: Interpretation of the Act and site plans
7First, the appellants submit the application judge erred in interpreting the Act and the Licence as prohibiting them from bringing fill on to the Property to rehabilitate it. They observe the Act defines “rehabilitate” as meaning “to treat land from which aggregate has been excavated so that the use or condition of the land (a) is restored to its former use or condition, or (b) is changed to another use or condition that is or will be compatible with the use of adjacent land.” The appellants contend that since the Property previously was used as an alfalfa crop farm, the definition of “rehabilitate” in the Act entitles them to bring fill onto the Property to restore it to that former use.
8We would not give effect to this argument. As the application judge correctly observed, the appellants’ argument ignores that the Licence was subject to specific conditions. These include the provisions contained in the September, 1992 Progressive and Final Rehabilitation Site Plans attached to the Licence: para. 36. The conditions, or notes, on the Property’s Progressive and Final Rehabilitation Site Plans contain specific provisions about how the appellants are to rehabilitate the excavated sites. The Progressive Operational Site Plan provides that areas should be excavated in sequence, “overburden and topsoil will be stockpiled for future rehabilitation,” and “as excavation progresses into new phase, the previous phase will be rehabilitated by sloping all excavated areas, replacing overburden, topsoil and seeding.” The Final Rehabilitation Site Plan states: “topsoil to be replaced on slopes and seeded.”
9As well, the June, 2007 Ministry Rehabilitation Order directed that Progressive and Final Rehabilitation “shall be in accordance with the site plan approved on September 22, 1992. This includes the use of onsite material for the grading of slopes at a minimum of 3:1, replacement of overburden and topsoil and seeding in accordance with the Rehabilitation Notes on Progressive Rehabilitation and the Final Rehabilitation Plan” (emphasis added). Blanchard did not challenge that order, nor did he seek an amendment of the Licence to permit the importation of fill to rehabilitate the Property.
10Accordingly, there was ample evidentiary support for the application judge’s findings that (i) there was no provision in the site plans for the importing of fill onto the site for rehabilitation purposes and (ii) the 2007 Rehabilitation Order “clearly described how the rehabilitation of the site was to be done using onsite materials”: paras. 34 and 41.
11However, the appellants submit that notwithstanding the conditions contained in the Progressive and Final Rehabilitation Site Plans, a regulation under the Act in force at the time the Licence was issued allows them to import fill. The provision of that regulation – s. 23(a) of O. Reg. 702/89 – stated “every licensee, shall ensure that a) no material except topsoil or subsoil is brought on to the site for sloping, grading, and other rehabilitation of the site unless the overburden from the site is insufficient for those purposes.”
12We do not accept this submission. First, the submission ignores the clear terms of the 2007 Rehabilitation Order that limits rehabilitation to the use of onsite materials. Again, Blanchard did not challenge that order or seek to amend the terms of his Licence in response to the order.
13Second, even assuming, for sake of argument, that the former regulation could inform the nature of the permitted rehabilitation activities, at most it would permit some importation of fill where the overburden from the site was insufficient for rehabilitation purposes. In the present case, the evidence of Ms. Catherine Douglas, an Aggregate Technical Specialist with the Ministry of Natural Resources and Forestry, was that the amount of material on site at the Property was sufficient to complete the rehabilitation requirements set out in the site plan. Moreover, the evidence filed by the appellants shows they are not interested merely in importing fill to remedy any deficiency in the amount of available overburden. Rather, they intend to import quantities of fill far in excess of amounts required simply to make up deficiencies in stock-piled overburden or topsoil.
14Consequently, we see no error in the application judge’s conclusion, at para. 46, that Blanchard “cannot ignore the specific conditions of his Licence as described in the site plans that set out the requirements for ‘final rehabilitation’ that did not permit the importing of offsite materials.” Nor do we see any error in his rejection of “Blanchard’s argument that he can ignore the conditions in his licence as described in the site plans and then proceed under the general definition of ‘rehabilitate’ under the Act”: at para. 44.
Second Ground: Conflict between the Site Alteration By-law and the site plans
15The appellants’ second argument is, in effect, that the terms of the final injunction are too broad and would prevent them from rehabilitating the Property.
16Section 2(i) of the Town’s Site Alteration By-law prohibits “site alteration on any lands which were previously licensed…as a pit...under the [Act]…whether such lands have been rehabilitated or not.” The appellants submit the final injunction, by permanently restraining them from contravening the provisions of the Town’s Site Alteration By-law, prevents them from performing the sloping and grading of the pit required by the notes in the Final Rehabilitation Plan. That, they argue, would result in a conflict between the By-law and the Act. In such a circumstance, they contend, the Bylaw is rendered inoperative to the extent of its inconsistency with the provisions of the Licence or site plans: Act, s. 66(1).
17We do not accept this submission. In para. 28 of its Factum, the Town clearly acknowledges that “any rehabilitation performed by way of a site alteration properly authorized under a licence issued pursuant to the Aggregate Resources Act, whether taking place during the currency of the licence or after the expiration/revocation of same, is exempt from the provisions of [the Site Alteration By-law].”
18The Town’s acknowledgement is based on s. 3.1(h), contained in Part 3 (Exemptions) of the Site Alteration By-law, that states it does not apply to the “alteration of the grade of land undertaken on land described in a licence for a pit…under the Aggregate Resources Act.” As well, the section of the Site Alteration By-law prohibiting site alteration – s. 2(i) – is expressly made subject to Part 3 of the By-law.
19Consequently, by restraining the appellants from contravening the provisions of the Site Alteration By-law, the final injunction does not interfere with the appellants’ ability to rehabilitate the Property in accordance with the conditions in the Licence’s Final Rehabilitation Plan.
Disposition
20For the reasons set out above, we dismiss the appeal. The appellants shall pay costs to Ontario in the amount of $15,000 and to the Town of $7,500, both inclusive of disbursements and HST.
“G.R. Strathy C.J.O.”
“G. Pardu J.A.”
“David Brown J.A.”