Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Paul Nolis and Cathy Nolis
Before: Justice of the Peace M. Coopersmith
Counsel:
- Ms. A. Ross for the prosecution
- The defendant Mr. Paul Nolis on his own behalf and on behalf of Ms. Cathy Nolis
JUSTICE OF THE PEACE COOPERSMITH:
I. THE CHARGE
1Paul Nolis and Cathy Nolis are charged under Part III of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended:
"on or about the 16 day of June, 2011, at 49 Muirhead Crescent in the Town of Richmond Hill, did commit the offence of fail to maintain a minimum distance for an accessory building or structure from the property line contrary to the Town of Richmond Hill zoning Bylaw 128-04 as amended, section 5.1.4(a), contrary to the Planning Act, R.S.O. 1990, c. P.13, as amended, section 67."
II. THE ISSUE
2The issue before this Court is whether the setback from the rear lot line of an eight feet by eight feet shed, located in the southeast corner of the defendants' rear yard is adequate. This shed is situated one and a half feet (eighteen inches) from the rear lot line.
3At trial, on March 15, 2012, Mr. Nolis represented himself, as well as his wife, Cathy Nolis. Town of Richmond Hill By-law Enforcement Officer Young testified for the Crown. Mr. Nolis gave evidence in his own defence. I have carefully reviewed all of the evidence and submissions.
III. BACKGROUND
A. Evidence of By-law Enforcement Officer Mary Anne Young
4Officer Mary Anne Young has been a By-law Enforcement Officer for the Town of Richmond Hill [the "Town"] for eight years. On May 4, 2011, in response to a complaint received by the By-law Department, she arrived at 60 Stouffville Road in the Town of Richmond Hill. There, she observed a shed on the southeast corner of the neighbouring rear yard at 49 Muirhead Crescent in Richmond Hill, in the Region of York. A chain link fence along the south boundary or rear of the Muirhead Crescent separates it from the Stouffville Road property. Officer Young measured the distance from the south wall of the shed to the chain link fence at one and a half feet (i.e. eighteen inches). She took photographs, but was unable to made contact with anyone at 49 Muirhead Crescent that day. The title search and the tax assessment roll of 49 Muirhead Crescent show that the defendants, Paul Nolis and Cathy Nolis, are the owners of this property.
5Following a further inspection on May10, 2011, Officer Young sent zoning notices by registered mail to Mr. and Ms. Nolis as the registered owners of the property at 49 Muirhead Crescent. These letters were returned to the Town marked unclaimed.
6On May 11, 2011, Officer Young, along with another officer, went to the Nolis residence to attempt personal service of the zoning notices. Mr. Paul Nolis answered the door and refused to take service. Office Young did advise him, however, that the reason she was there was because of the shed in his back yard. Mr. Nolis advised that he believed the issue had already been resolved and that he did not have to move the shed. Officer Young replied that she was not aware of this decision.
7Officer Young next returned to the neighbouring property at 60 Stouffville Road on June 16, 2011. The defendants still had made no contacted with her. The shed in the southeast corner of the rear lot of 49 Muirhead Crescent was still where she had viewed it on May 4, 2011. She took more photographs of the shed and the fence. Her last visit to view the shed was during the week prior to this trail. Nothing had changed.
8Overall, By-law Enforcement Officer Young's testimony was clear, consistent and forthright and, hence, I accept her evidence as credible and reliable.
B. Defendants' Background Information, Site Plan Review Form and Estate Residential Agreement
9The defendant stated that this matter dates back seven years when he and his wife completed an application to demolish an older home and build a new one on a one hundred by two hundred foot lot at 49 Muirhead Crescent. A large number of architectural designs were submitted and extensive information was required by the Town because of the impact the Oak Ridges Moraine legislation had on their property. It took nineteen months to get their application approved. It had to be reviewed and approved by the Conservation Authority and, due to the newness of the Oak Ridges Moraine Conservation legislation, the defendants had meetings with every department at the Town.
10The defendants' architect and other trades people required direction on land use, which is why the defendant specifically asked Officer Young, in cross examination, what zoning she was using. Exhibit 16 is an October 2, 2006, Site Plan Review Form letter from Ferdi Toniolo, a Planner in the Town's Building Services Division, Zoning Section, to Bruce Robb in the Planning and Development Department. It begins:
"The subject lands are zoned "Urban (UR)" pursuant to Zoning By-law No. 128-04. As per the interpretation of the Commissioner of Planning and Development, Section 4, Table A.2, Special Provision 1 permits the development of new dwellings pursuant to the zoning standards that existed prior to November 15, 2001. Prior to November 15, 2001, the subject property was zoned "Residential Second Density (R2)" under Zoning By-law No. 1703, as amended."
11The chart inserted into this Site Plan Review Form letter reveals a "Minimum Rear Yard Setback" requirement of "23 ft.", as provided for under the former By-law No. 1703. It is the defendant's position that there was no indication in this Site Plan Review Form letter that the defendants' rear yard setbacks did not comply with the applicable zoning by-law requirements. However, it is my understanding that the twenty-three feet rear yard setback requirement cited in this letter, in fact, referred to the main residential dwelling and not to accessory structures, that is, the shed at issue.
12The defendant provided an "Estate Residential Agreement" ["Agreement"] for the property located at 49 Muirhead Crescent, entered into on October 19, 2006, between both Paul and Cathy Nolis and The Corporation of the Town of Richmond Hill. The defendant submits that the Agreement was to appease and conform to the Conservation Authority requirements. Essentially, the defendants went to the Conservation Authority for approval of the septic system and the shed associated with the septic system on the basis that they would provide the topographies to confirm the elevation of the property and the water flow and ensure that trees were protected. The Site Plan, attached as an appendix to the Agreement, shows the flow of water from the far right top of two swells shown on the survey, coming downwards, with the septic bed between them. The defendant had paid nine thousand dollars for this survey to ensure there would be no interference with the water flow. The defendant claims that the Conservation Authority approved the surveyor's and the architect's version of the water flow on the property and what can and cannot be put in place (i.e. the locations of any kind of accessory buildings).
13Nowhere in that Agreement is By-law No. 128-04 mentioned. Since the Agreement is silent with respect to this Zoning By-law No. 128-04 and since theirs was the first property under the new legislation, it is the defendant's unsubstantiated position that a lot of people at the Town, including the Mayor, did not know what the legislation meant. Nevertheless, the defendants proceeded to plan where the accessory buildings would be, including the location of the septic system shed and the shed at issue. The defendant claims that neither he nor his wife would have signed such an agreement if they were restricted to work under land use as set out under By-law No. 128-04.
14The defendant claims that this second shed meets the requirements of this Agreement. He also submits that because of the topography, nothing can be built on the septic bed for thirty-eight feet, and, therefore, nothing can be built on the property that would meet the By-law Enforcement Officer's needs. Yet that Officer Young cited a setback distance of twenty-five feet, which would put the shed right on top of the septic bed. The defendant believed that the Conservation Authority was not going to allow this to happen. It is the defendant's position that the survey shows they have met the Town's requirements and it is a part of the Agreement.
15I have read this Agreement. Its main purpose encompasses protection of trees and it requires the defendants to obtain approval from the Town "for the installation of the proposed replacement private sewage disposal system". Clause 2 required that prior to a Building Permit being issued, the defendants were required to "submit a detailed site plan, approved of by the Town, showing the location and siting, including dimensions and setbacks, of all existing and proposed buildings and structures, driveways, well and septic tile field (including reserve field), the location of proposed stockpiles of topsoil and excavated material and the location of all fences, driveways, culverts and drainage patterns lot grading and any other pertinent information as may be required by the Town." [Emphasis added.] I have reviewed the Site Plan/survey, which is attached to the Agreement, and I note the presence of a "Waterloo vinyl shed with foam media, as per manufacturer", which shed is associated with the septic system, but neither this second shed which brings the defendants before this Court nor any other previously existing accessory structure is shown where the shed at issue now exists on the defendants' property. The defendant has not provided any evidence that the shed at issue is clearly shown on any requisite detailed site plan. Finally, I cannot give much weight to the defendant's submission that, at the time the agreement was signed in October 2006, he was planning to locate the shed at issue in its current form, eighteen inches from the rear lot line. This statement is incongruent with his later claim that a doghouse once existed at that location and he simply enlarged this legal non-complying structure in 2009. With respect, I understand the defendant made use of the doghouse for many years until unfortunate circumstances caused him to put his dog down. Hence, I reject his submission that in 2006 he planned the shed as it currently exists.
IV. ANALYSIS
16In order to make a determination of the issue before the Court, I have analysed and answered the following three questions:
- Is the Defendant's property zoned "Urban" or "Residential – R2"?
- What is the applicable By-law?
- What is the Requisite Rear Yard Setback for Accessory Structures?
17For the reasons I have provided below, I find that the defendants' property is zoned "Urban", the applicable by-law in the matter before this Court is the Town of Richmond Hill By-law No. 128-04, as amended, and the requisite rear yard setback for accessory buildings or structures in the defendants' rear lot is greater than the eighteen inches currently existing between the rear lot line and the shed.
1. Is the Defendants' Property Zoned "Urban" or "Residential – R2"?
18In developing the site where the defendants were building their home in 2006, the architect and other trades people required direction on land use, which is why the defendant felt it was important to determine whether the lands were zoned "Urban" or "Residential". Officer Young testified that the property at 49 Muirhead Crescent is northeast of the intersection of Stouffville Road and Yonge Street and, hence, zoned "Urban". I find that the defendants' property is located in Schedule "A1" of By-law No. 128-04, which zones lands situated north of Stouffville Road and east of Yonge Street as "Urban".
19The defendant relies on the aforementioned October 2, 2006 letter from Ferdi Toniolo, a Planner at the Town, to Bruce Robb in Planning and Development. He submits that this letter clearly shows the application of By-law 1703 for minimum rear yard setback determination. The defendant asserts that if Zoning By-law No. 128-04 did apply to his property, it would make his house and everything done to it non-compliant. Without him providing grounds for such a claim, I cannot agree with this sweeping allegation.
20The defendant asks this Court to stay the charge or to find the defendants not guilty. Originally, he submitted that at the relevant point in time, his property was zoned "Residential", not "Urban". Zoning is very important and goes to land use. This is what the Minister meant in his Explanatory Notes to By-law No. 128-04 – a comprehensive zoning by-law. Hence, what we have, and always have had, is "Residential" and any by-law flowing from that is "Residential", not "Urban" as the By-law Enforcement Officer testified. The defendant claims his property, located at 49 Muirhead Crescent is not "Urban". In later testimony, the defendant conceded that, although his property may now be zoned "Urban", prior to November 15, 2001, it was zoned "Residential Second Density (R2)" and Table A.2 permitted the development of new dwellings pursuant to the zoning standards existing prior to this 2001 date. The defendant submits that the property became "Urban" only after the Minister approved it retroactively.
21I accept that, prior to November 15, 2001, the property was zoned "Residential Second Density (R2)". Reference to this "R2" zoning in the Site Plan Review Form letter is solely for the purpose of determining the appropriate zoning standards, including which setbacks to apply. The defendant cannot confuse this "R2" reference as a "Residential" zoning designation to his property in 2006. I find that the October 2, 2006 letter is clear. By 2006, the defendants' property was zoned "Urban".
2. What is the Applicable By-law?
22The Crown states the case before this Court: the shed on the southeast corner of the defendants' property is too close to the rear lot line. The defendant does not agree. He believes the issue is whether we have the appropriate by-law that actually has been enforced and whether that by-law should be enforced.
23That the shed is located eighteen inches from the property line is not contested. Regarding the legislative scheme, the defendant stated that there were no setbacks. He does not accept the Oak Ridges Moraine Conservation Act, 2001, S.O. 2001, c. 31 and the zoning by-laws and that his property is subject to this zoning setback restriction.
24The Crown provided a copy of the Town of Whitchurch By-law 1703, the predecessor to the current Zoning By-law No. 128-04. Section 3.9 of By-law 1703 reads:
3.9 Private garages or other accessory buildings shall not:
3.9.5 Be built closer than four feet to a lot line except for common semi-detached garages which may be centred on a mutual side lot line.
25The defendant stated that he was not aware that section 3.9.5 of By-law 1703 created a rear yard setback of four feet for an accessory structure. He believed the side yard setback was four feet and the rear yard was eighteen inches, which I find contradicts his previous submissions that there were no setbacks or that the setback was twenty-three feet, as provided in the Site Plan Review Form.
26Furthermore, the defendant posits that the reason he was not charged under By-law 1703 was because the Crown was not aware of the Agreement between the defendants and the Town and every department within it. I find no foundation for this claim, as the Agreement from October 2006 makes no reference to By-law 1703 and I have not been provided with any materials or other evidence which connects the Agreement and the Town of Whitchurch By-law.
27The defendant provided an invoice from Agro Lumber Inc., showing $1,175.20 in building materials was purchased on February 17, 2009. I was not provided with the exact date the shed was built. Nevertheless, I am satisfied that my analysis below will show that the applicable by-law in 2009, when the shed was erected, was the Town of Richmond Hill By-law No. 128-04, as amended.
28Reviewing the legislative scheme which informs this Court, section 9(1) of the Oak Ridges Moraine Conservation Act, 2001 states:
On or before the day that is 18 months after the filing date described in subsection (1), every single-tier municipality and lower-tier municipality shall prepare and pass a zoning by-law amendment to bring its zoning by-laws into conformity with the Plan, but the amendment does not come into force unless it is approved by the Minister under section 10.
29To meet its statutory obligations, on May 31, 2004, the Council of the Town of Richmond Hill passed By-law No. 128-04. Section 1.9 repealed prior zoning by-laws, including the former Township of Whitchurch By-law 1703.
30By-law No. 128-04 was then sent to the Minister of Municipal Affairs and Housing [the "Minister"] for approval. In 2009, the Minister provided his "Notice of Decision – with respect to a Zoning By-law Amendment – Subsection 10(9) of the Oak Ridges Moraine Conservation Act, 2001". The "Date of Decision" is July 6, 2009; the "Date of Notice" is July 9, 2009.
31The defendant quoted the Minister's "Explanatory Note to By-law 128-04":
LANDS AFFECTED
By-law No. 128-04 is a Comprehensive Zoning By-law that applies to lands located within the Town of Richmond Hill that are generally shown on the index map to this by-law and Schedules A1, A2 and A3.
EXISTING ZONING
The lands subject to this By-law were zoned in accordance with By-law Nos. 1442 of the former Township of Markham, By-law 1703 of the former Township of Whitchurch, By-law 2523 of the former Township of Vaughan, By-law 2325 of the former Township of Markham and By-law 189-78 of The Corporation of the Town of Richmond Hill, all as amended. The existing zoning in these areas is generally Agricultural, Rural Residential, Open Space and Flood.
PURPOSE
The purpose of By-law 128-04 is to prohibit the use of land and the erection of buildings and structures except for such purposes as set out in the Oak Ridges Moraine Conservation Act, 2001, S.O. 2001, Chapter 31, Ontario Regulation 140/02, the Oak Ridges Moraine Conservation Plan, and this By-law and to regulate the type of construction, height, bulk, location, size, floor area, spacing, character and use of buildings or structures on the lands covered by this By-law. It is intended that this By-law implement the policies contained in Ontario Regulation 140/02, the Oak Ridges Moraine Conservation Plan.
The new zoning categories are intended to be consistent with the Oak Ridges Moraine Conservation Act and Ontario Regulation 140/02, the Oak Ridges Moraine Conservation Plan.
32The defendant submits that nowhere in his notes to By-law No. 128-04 does the Minister mention septic tanks or beds or anything else. These latter matters are addressed in provincial legislation and municipal legislation cannot prevail over it. I do not agree. Single-tier and lower-tiered municipalities were tasked with bringing their zoning by-laws into conformity with the Oak Ridges Moraine Conservation Act, 2001, and I find that is what the Town did by passing By-law No. 128-04. The Minister's modifications brought the Town's zoning By-law into conformity with provincial legislation.
33Section 10(11) deems when the Town's zoning by-law amendment comes into force:
A zoning by-law amendment that the Minister approves under this section shall be deemed to have come into force on the day it was passed.
34Hence, I am satisfied, reading these sections of the Oak Ridges Moraine Conservation Act, 2001 as a whole, that By-law No. 128-04, as amended by the Minister's July 2009 decision, came into force on May 31, 2004, the date the zoning by-law amendment was passed by the Town's Council.
35The defendant claims to have erected the shed in 2009 and the date of the offence before this Court is June 16, 2011, by which time the Town of Whitchurch By-law 1703 had long been repealed. Consequently, I am dismissing the defendant's claim that he has been charged under the wrong by-law. For the reasons I have provided, I find that the applicable by-law in the matter before this Court is the Town of Richmond Hill's By-law No. 128-04, as amended, which is deemed to have come into effect on the date it was passed by the Town Council, that is, May 31, 2004.
3. What is the Requisite Rear Yard Setback for Accessory Structures?
36There is no dispute that the shed at issue meets the definition of an "accessory building" as provided by section 6.2 of By-law No. 128-04. No Ministerial modification was made to this provision:
Means a building or structure that is not used for human habitation, the use of which is customarily incidental, subordinate and exclusively devoted to a principal use or building located on the same lot.
37Section 5.1.4(a) of By-law No. 128-04, as amended, is entitled "Regulations for Detached Accessory Buildings and Structures. It reads:
A detached accessory building or structure, except a detached private garage, as an accessory building to a residential dwelling is permitted in the rear yard and/or side yard, provided that:
(a) It's (sic) set back from any lot line is the same as that required by this by-law for the main permitted use;
38Prior to By-law No. 128-04 being amended by the Minister's July 6, 2009 decision, Table A.2 of section 4.1, as passed by the Town, applied a "Minimum Required Rear Yard" setback for the main permitted use in an Urban Zone "As it existed on November 15, 2001". And on November 15, 2001, the Town of Whitchurch By-law 1703 was in force – section 4.9 required a rear yard depth of not "less than fifteen feet (15') or a distance equal to the height of a building, whichever is the greater" for any building or structure other than an accessory building in a Residential Zone. Section 3.9.5 of By-law 1703 required accessory buildings to be built no closer than four feet to a lot line.
39The Minister's July 6, 2009 decision modified Table A.2 to require a rear yard setback of 7.5 metres for the main permitted use in an Urban Zone. Hence, whether the defendants built their shed in 2009 in accordance with the four-foot setback for accessory buildings as they existed prior to November 14, 2001, or to comply with the amended By-law No. 128-04, which requires a rear yard setback of 7.5 metres, I am satisfied that, as far back as 2001, the rear yard setback distance was and continues to be greater than the eighteen inches which currently exists.
40Consequently, in locating an accessory building or structure, that is, their shed, eighteen inches from their rear lot line, I conclude that the defendants contravened section 5.1.4(a) of By-law No. 128-04, both before and after it was modified, by failing to maintain a minimum distance for an accessory building or structure from their rear yard property line.
V. DEFENCES
41In his evidence and his submissions, it appears that the defendant may be relying upon three possible defences to the charge before this Court. Firstly, the defendant spoke at length about previously being charged and pleading guilty in March 2011 to the same offence he is now facing. That matter had an offence date of September 14, 2009. Secondly, he argues that he was advised by the courts that he did not have to move his shed. Finally, the defendant claims that his shed can be located where it currently stands because it is simply an enlargement of a pre-existing legal non-complying accessory building. I have analysed each of these three defences below under the headings:
- In light of the prior 2009 conviction, is the doctrine of res judicata or the doctrine of abuse of process a viable defence?
- Can the defence of officially induced error be relied upon?
- Is the shed an enlargement, repair or renovation of a pre-existing legal non-complying accessory building or, alternatively, is it in accordance with a legal non-conforming use?
42For the reasons provided below, I find that each of these defences fail.
1. In Light of the Prior 2009 Conviction, is the Doctrine of Res Judicata or the Doctrine of Abuse of Process a Viable Defence?
(a) Prior Charge in 2009:
43Officer Young is the same By-law Enforcement Officer who was involved with issues surrounding this same shed in 2009. The defendant questioned why, in the 2009 disclosure, dates existed for everything except the date on which the complaint was made against the defendants. Officer Young advised that she routinely deals with matters within twenty-four hours. Consequently, I am satisfied that she addressed this prior matter and inspected the defendants' property within twenty-four hours of the July 22, 2009 complaint. There is no foundation to the defendant's argument that the complaint was made prior to the Minister's July 9, 2009 notice of the modifications to the Town's By-law No. 128-04 or that the Town waited until it received Ministerial approval of By-law No. 128-04, as amended, to charge him the first time on September 14, 2009. Instead, I accept Officer Young's testimony that the first complaint that brought the first charges against the defendants was filed with her department on July 22, 2009, a few weeks after the Minister's modifications to By-law No. 128-04 were rendered.
44Also, I am satisfied that well before July 9, 2009 the building of the house had been completed. There is a second smaller shed, also an accessory structure or building, located next to the shed in question. It, too, is not set back 7.5 metres from the rear yard property boundary. However, this second shed can be where it is, since it is related to the septic system and was approved under the Site Plan.
45On August 20, 2009, Officer Young issued a letter to Paul and Cathy Nolis, advising that their rear shed was in contravention of the Town's Zoning By-law No. 128-04. On September 14, 2009 they were charged with the identical offence that now brings them before this Court. As the date for trial approached, the defendant had not been provided with full disclosure, even after requesting it. He said he was advised by the court that, if he wanted the case thrown out, he had to take it up with the Attorney General. Mr. Nolis wrote to the Attorney General. In response, he received a letter [entered as Exhibit 19 to these proceedings] dated November 18, 2010 from the Director of Crown Operations in the Central East Region. The letter advised:
It would be inappropriate for any ministry official to provide legal advice or direction in a specific case. … A private lawyer is in the best position to advise you of your rights and the options available to you.
46The letter also state that, since this is a matter proceeding in York Region, a copy of the defendant's correspondence has been forwarded to Mr. Hans Saamen, Senior Prosecutor for York Region. The letter provides Mr. Saamen's contact information. I find that there is no indication in this letter that the prosecutor should resolve the matter, as the defendant is alleging, and it is a mystery how the defendant could have come to such a conclusion from this letter.
47The defendant spoke with Mr. Saamen several times and exchanged numerous emails. Consequently, the Town withdrew charges, for example, dealing with the absence of a railing on the side door and not allowing an inspector into the defendant's basement. After four months of discussions, the defendant maintains that Mr. Saamen told the defendant to plead guilty to the shed charges and a penalty of fifty dollars, plus five dollars, would make this matter go away. Mr. Saamen was not called to testify. Hence, as hearsay evidence, I cannot give the statements attributed to him any weight.
48On March 16, 2011, the defendant pled guilty. He has provided this Court with a transcript of these prior court proceedings before Justice of the Peace R. Shousterman. The arraignment on page 5 is as follows:
CLERK OF THE COURT: Paul Nolis and Cathy Nolis jointly stand charged that on or about the 14th day of September, 2009 at 49 Muirhead Crescent in the Town of Richmond Hill did commit the offence of fail to maintain a minimum distance for an accessory building or structure from the property line, contrary to the Town of Richmond Hill Zoning Bylaw 128-04 as amended, s. 5.14 (a) contrary to the Planning Act, R.S.O. 1990 cp. 13 as amended s. 67.
How do you plead to this charge on behalf of yourself and Cathy, guilty or not guilty?
MR. NOLIS: Guilty.
49Starting at page 7, the transcript reads:
THE COURT: What you need to understand is that even though I am not bound by it, it is in fact, well established law that there has to be compelling reasons for the court to disregard a joint sentence. So in other words, what would have to happen is I would need to find the joint sentence that has been agreed upon is either not in the interest of justice, because for example, it is so egregious that it cannot be in the interest of justice or some how that it would bring the administration of justice into disrepute.
I haven't heard anything that suggest that the fine would bring the administration of justice into disrepute, my question is, what's happening with the shed? Did you remove it? Did you set it back further?
MR. NOLIS: No.
THE COURT: So, the shed is simply as is.
MR. NOLIS: The shed is as it, yes.
THE COURT: All right. Well if there hasn't been any compliance why – why are we doing this? Why is the prosecution doing this?
MR. SAAMEN: I think in the circumstances Your Worship, what happened here is the Zoning Bylaw was in fact, passed in 2004, but it was subject to administarial (sic) approval when Mr. Nolis built the shed. The bylaw had not yet been approved by the Minister, it was approved afterwards.
THE COURT: So he got caught in the middle.
MR. SAAMEN: He got caught in the middle of a bylaw that changed.
THE COURT: So be it.
MR. SAAMEN: So it's sort of a – and it becomes retroactive by virtue of S. 10 of the Oak Ridges Moraine Act. So when they did it, the bylaw was passed but not formally passed.
THE COURT: Right.
MR. SAAMEN: So he fell in the grey zone, in the middle of no man's land ….
THE COURT: Right.
MR. SAAMEN: …. of doing something before the bylaw took effect and it becomes retroactive. So it's somewhat unfair to Mr. Nolis, I think, that he gets stuck in the middle now. That's why we're asking for a lenient penalty here, Your Worship. And what Mr. Nolis chooses to do from here in a go forward position in terms of any minor variance or whatever he seeks to do with the Town, that's a go forward position, but I don't think he should be punished for the fact that ….
THE COURT: He got caught.
MR. SAAMEN: He got caught in the middle.
THE COURT: Right? Are those substantially ….
MR. NOLIS: Yes.
THE COURT: Is that substantially correct as well?
MR. NOLIS: Yes.
THE COURT: So be it. Then Mr. Nolis, I accept the pleas of guilty entered into by yourself – on behalf of yourself and on behalf of your wife, Cathy. I am now finding you both guilty of the offence as set out and I'm accepting the plea and I'm accepting the joint sentence. $50 fine imposed as against you and as against your wife. Now sir, how long to pay?
MR. NOLIS: I can pay today.
50It is the defendant's position that the court accepted not only the joint plea, but also that the shed could stay where it was. It is his evidence that Her Worship asked if the shed was going to stay where it was, to which the response was "yes". She then asked if it was going to be moved, to which he responded, "No". That was alright with the court and, hence, the defendant and his wife felt everything was done and over.
51I do not accept this submission. The prosecutor clearly stated that he was requesting a lenient penalty, as it appeared that the defendant "got caught in the middle". The prosecutor refers to the time between the By-law being passed and the retrospective modifications the Minister as the period during which the defendant was "caught in the middle". Nonetheless, he clearly went on to state "And what Mr. Nolis chooses to do from here in a go forward position in terms of any minor variance or whatever he seeks to do with the Town, that's a go forward position …". When the defendant accepted this as substantially correct, the court imposed the joint submission of a lenient penalty.
52I accept the Crown's submission that "getting caught in the middle" is not a legal defence. Nowhere in the transcript did the court absolve the defendant from his obligations on a "go forward position in terms of any minor variance or whatever he seeks to do with the Town", nor did it exempt the shed from future enforcement or prosecution. The transcript is clear: the shed continued to contravene the By-law, but the prosecutor, because of the arguments of fairness and equity, agreed to a low fine upon conviction.
53The defendant stated that he has not taken any steps to apply for a minor variance. He spoke with the Town about it, but was advised that there was an eight thousand dollar application fee. Furthermore, for some unexplained reason, the defendant believes that Mr. Saamen had asked the Town to leave him alone and, in these circumstances, he and his wife simply accepted the guilty plea and the joint submission. He took no other steps to legalize or remove the shed, because it is also the defendant's unfounded belief that he told the justice he would not and the justice said that was alright. The defendant further submits that he pled guilty and paid one hundred and ten dollars, knowing he was not guilty, but he never would have done so had he known that this matter would come back at him again a very short time later.
54About a month after the matter was dealt with in the courts, Officer Young again knocked on the defendants' door to advise that, once again, they were being charged. It was the same complainant, the same shed, the same defendants, the same plaintiff and the same bylaw.
55The defendant states that this matter could go on forever and, although he was aware of one matter in Richmond Hill where the person was before the court seven times, he did not provide this Court with materials to substantiate this claim, nor is it likely I would find it germane to the matter before me. It is the defendant's belief that the courts should not be used as a vehicle by individuals to take revenge on others because they do not like them, as the defendant's neighbour appears to be doing. The same neighbour called the Bylaw Officers six or seven times regarding Mr. Nolis' dog, which was in a dog house that has been replaced with the shed at issue. Further, the defendant claims the reason his neighbour has made several calls to By-law Enforcement, to Animal Control, to the Conservation Authorities, to the police and to have work stopped several times on their home is that the neighbours were never consulted about the building of their home, as the defendants built within the by-laws and were not asking for any variance. The defendant alleges that the neighbour has used the system and the courts to take revenge and whatever the resolution of this case, no one should be subjected to such revenge, using services the tax payers are paying for, without cause. I can find no evidence, circumstantial or otherwise, to substantiate these allegations. Nevertheless, I can assure the defendants that this Court has not been, nor will it be used for ulterior motives such as those hypothesized by the defendant.
(b) Doctrine of Res Judicata:
56In light of these comments, the defendant's belief that the matter before this Court had finally been disposed of in the prior court proceeding and his view of this proceeding as abusive or vexatious, I will briefly address the doctrine of res judicata and its close relative, the doctrine abuse of process.
57In Re EnerNorth Industries Inc., 2009 ONCA 536, R. A. Blair J.A., in delivering the judgment for the court, describes the doctrine of res judicata, starting at paragraph 53:
The doctrine of res judicata is a common law doctrine that prevents the re-litigation of issues already decided. It is founded on two central policy concerns: finality (it is in the interest of the public that an end be put to litigation); and fairness (no one should be twice vexed by the same cause). The doctrine is part of the general law of estoppel and is said to have two central branches, namely, "cause of action estoppel" and "issue estoppel."
Cause of action estoppel refers to the determination of the cause or causes of action before the court. The applicable form of res judicata in this case, however, is issue estoppel. Issue estoppel prevents a litigant from re-litigating an issue that has been clearly decided by a court of competent jurisdiction in a previous proceeding between the same parties or their privies even if the new litigation involves a different cause of action.
58In the matter before me, the applicable form of res judicata is issue estoppel. For issue estoppel to be successfully invoked, three conditions must be met: (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their privies (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at para. 25, per Binnie J.).
59In applying issue estoppel to the matter before this Court, I can easily accept that the second and third preconditions have been satisfied. However, I am not satisfied that the first precondition has been met. On March 16, 2011, the defendants were arraigned on a charge almost identical to the one before this Court. However, the date of the previous offence was the 14th day of September, 2009, while the offence date that now brings the defendants before this Court is the 16th day of June, 2011. I am satisfied that this offence did not take place at a single point in time, but is of an ongoing nature. Consequently, the matter before me is different from that which was previously before the court. The defence of res judicata, in particular, issue estoppel, cannot succeed.
60In light of the defendant's remarks concerning his neighbour's use of the system to take revenge, I feel obliged to touch on the doctrine of abuse of process. This doctrine may prevent a matter from being litigation again where the strict requirements of issue estoppel are not met, but to allow the matter to proceed would violate principles of judicial consistency and finality or the integrity of the administration of justice.
61In Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, starting at paragraph 35, Arbour J. writes:
Judges have an inherent and residual discretion to prevent an abuse of the court's process. This concept of abuse of process was described at common law as proceedings "unfair to the point that they are contrary to the interest of justice" (R. v. Power, 1994 CanLII 126 (SCC), at p. 616), and as "oppressive treatment" (R. v. Conway, 1989 CanLII 66 (SCC), at p. 1667). McLachlin J. (as she then was) expressed it this way in R. v. Scott, 1990 CanLII 27 (SCC), at p. 1007:
... abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice.
The doctrine of abuse of process is used in a variety of legal contexts. The unfair or oppressive treatment of an accused may disentitle the Crown to carry on with the prosecution of a charge: Conway, supra, at p. 1667. …
In the context that interests us here, the doctrine of abuse of process engages "the inherent power of the court to prevent the misuse of its procedure, in a way that would ... bring the administration of justice into disrepute" (Canam Enterprises Inc. v. Coles, 2000 CanLII 8514 (ON CA), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).
62In response to the Court's request for submissions on these doctrines, the Crown provided the Ontario Court of Appeal decision, R. v. Reeves, [2000] O.J. No. 3538. In that case, the municipality claimed that nine of the Reeves' camping lots violated the zoning bylaw, as they were too close to neighbouring cottages. The defendants argued that the lots were a legal non-conforming use. Charges were laid six times, the last time with the Reeves applying unsuccessfully to have the charges stayed on the grounds that they were an abuse of process. In paragraph 22, Laskin J.A., for the Court, writes:
"These defendants were charged not with a Criminal Code offence, but with regulatory offences, with violating the municipality's land use requirements. The offences are not alleged to have occurred at a discrete point in time but to be ongoing violations. The practical effect of a stay would be to give the defendants a legal non-conforming use by court order without the merits of their position ever having been adjudicated. Viewed in this way, it seems to me the community's tolerance for successive prosecutions is greater that it might be in other kinds of cases. At least for now, the community's interest in enforcing its land use requirements outweighs any unfairness in prosecuting the defendants again."
63The defendant could not conceive of how the case law in R. v. Reeves, supra, applies here. That case was about nine camps affecting an entire community, not like his one shed in a residential area which affects one lot and not the whole community.
64As in Reeves, supra, the offence before this Court has not occurred at a discrete point in time, but is of an ongoing nature. Furthermore, this Court is looking at one shed in a residential area which affects one lot and not a whole community. However, bolstered by the defendant's claim that there are other shed on neighbouring properties which do not comply with requisite setbacks, I cannot ignore the 'slippery slope' principle which could be triggered by this Court setting a precedent for this one residential property. It appears to me that, as in Reeves, supra, the community's interest in enforcing its [zoning setback requirements] outweighs any unfairness in prosecuting the defendants again." The principle of law set out in Reeves, supra, is clear and I am bound to follow this Ontario Court of Appeal decision. Hence, I do not find the doctrine of abuse of process applicable. I cannot stay the charge against these defendants by usurping the jurisdiction of the Town to determine its minor variances or any other process it may have to approve an otherwise illegal positioning of a structure on an individual's property.
2. Can the Defence of Officially Induced Error be Relied Upon?
65In his evidence and submissions, the defence of officially induced error of law was implied by the defendant. He indicated that the Town signed off on his Site Plan and the Agreement, which allowed the shed at issue as it currently exists. Moreover, he claims that both he and his wife believed they were doing the right thing. Neither of them intentionally contravened any by-law and they began constructing the shed months before Ministerial approval of the By-law.
66The defence of officially-induced error in law is explained at paragraph 22 of Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec inc., 2006 SCC 12, where LeBel J. reaffirms this defence on behalf of the Supreme Court of Canada:
This Court has firmly and consistently applied the principle that ignorance of the law is no defence. It has given effect to this principle not only in the context of the criminal law itself, but also in cases involving regulatory offences (Molis v. The Queen, 1980 CanLII 8 (SCC), [1980] 2 S.C.R. 356; Pontes). However, the inflexibility of this rule is cause for concern where the error in law of the accused arises out of an error of an authorized representative of the state and the state then demands, through other officials, that the criminal law be applied strictly to punish the conduct of the accused. In such a case, regardless of whether it involves strict liability or absolute liability offences, the fundamental fairness of the criminal process would appear to be compromised. Although the Court has not ruled on this point, Lamer C.J. responded to these concerns, in concurring reasons in Jorgensen (R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55), by proposing to recognize the defence of officially induced error and attempting to define the conditions under which the defence would be allowed.
67In his minority opinion in R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55, at paragraphs 25 and 26, then Chief Justice Lamer explains:
Officially induced error of law exists as an exception to the rule that ignorance of the law does not excuse. As several of the cases where this rule has been discussed note, the complexity of contemporary regulation makes the assumption that a responsible citizen will have a comprehensive knowledge of the law unreasonable. This complexity, however, does not justify rejecting a rule which encourages a responsible citizenry, encourages government to publicize enactments, and is an essential foundation to the rule of law. Rather, extensive regulation is one motive for creating a limited exception to the rule that ignorantia juris neminem excusat.
As complexity of regulation is linked to the justification for this excuse, it is predictable that it will arise most often in the realm of regulatory offences. ...
68Starting at paragraph 28 of Jorgensen, supra, Lamer C.J. established six elements or steps the defendant must prove in order to establish the defence of officially induced error of law. They are as follows:
- First, determine that the error was one of law or of mixed law and fact.
- Demonstrate that the accused considered the legal consequences of his/her actions.
- It must be demonstrated that the advice obtained came from an appropriate official.
- The defendant must show that the advice was reasonable in the circumstances.
- The advice obtained must also have been erroneous. [The Crown will have established what the correct law is, from which the existence of error can be deduced.]
- Finally, the accused must demonstrate reliance on the official advice.
69Lamer C.J. adds the following procedural considerations, at paragraphs 37:
As this excuse does not affect a determination of culpability, it is procedurally similar to entrapment. Both function as excuses rather than justifications in that they concede the wrongfulness of the action but assert that under the circumstances it should not be attributed to the actor. (See R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, at pp. 944-45.) As in the case of entrapment, the accused has done nothing to entitle him to an acquittal, but the state has done something which disentitles it to a conviction (Mack, at p. 975). Like entrapment, the successful application of an officially induced error of law argument will lead to a judicial stay of proceedings rather than an acquittal. Consequently, as a stay can only be entered in the clearest of cases, an officially induced error of law argument will only be successful in the clearest of cases.
… The elements of the officially induced error excuse are to be proven on a balance of probabilities by the accused.
70In response to my request for submissions on 'officially induced error', it is the Crown's position that the defendant has not established factual basis for this defence. Further, this Court has heard no evidence that this use of the defendant's property was legal or from any official sanction contrary to the legislative scheme.
71In the event one were to find that an error in law has been committed, I am not satisfied that the second step of the test for an officially-induced error has been met. As stated by Lamer, C.J., in Jorgensen, supra, "It is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that her conduct was permissible." In other words, the defendants cannot simply assume that it is permissible to build a shed wherever they decide it should be. In accordance with my findings above, the shed is not shown on the survey or in the Site Plan. Nor was it built at the same time the old house was demolished and the new one built by the defendants. Moreover, I am satisfied that their extensive experiences required to get the requisite approvals to build their home would most likely have exposed them to the concept of "setbacks". Nonetheless, should I be in error in step two, I do not accept the defendant's submissions that a Town official advised him that he could locate the shed where he did. I have heard no evidence that either of the defendants asked any Town official if they could construct the shed where it is currently located, nor that any advice on zoning setback requirements from a Town official was proffered. As I stated previously, a building permit does not serve the same function as zoning setback requirements. The defendants cannot rely on advice they believe the courts provided to them in a prior court proceeding – the court's jurisdiction falls short of acting in lieu of the Town or any of its officials. Furthermore, I have found that Mr. Saamen, as Prosecutor for the Region, at no time gave the defendants permission to locate their shed where it was located, eighteen inches from the rear lot line.
72In summary, if an error of law was made by this Court finding the defendants improperly located their shed eighteen inches from their rear lot line, I am satisfied that the defendants knew or reasonably ought to have considered the legal consequences of placing their shed where they did. I am not satisfied that any official at the Town advised them, nor that they even sought advice on this particular matter. No officially-induced error has been committed.
3. Is the Shed an Enlargement, Repair or Renovation of a Pre-existing Legal Non-complying Accessory Building or, Alternatively, is it in Accordance with a Legal Non-conforming Use?
73Prior to erecting the shed in 2009, there was a four feet by four feet doghouse where this shed now stands. The defendant claims he did not need to know about setbacks for the shed at issue because he used an already existing structure and simply extended it. The defendant's understanding of "non-complying" is that the structure did not meet the setback requirements, but it can continue to exist as long as the original structure was only enlarged or renovated, which is what the defendant claims he did. When Mr. Nolis put his dog down, he merely extended the doghouse into an eight feet by eight feet shed. The boundaries of the shed were never in compliance with the Town of Whitchurch By-law setback requirement of four feet and, according to the defendant, neither are the other sheds in the neighbourhood. For example, the defendant's neighbour has a shed that is six inches from the property line and, although he is unaware of how long it has been there, that shed does not have to comply. Issues about neighbours' sheds are not matters which are before this Court and, hence, not issues I will address.
74The defendant states that because the shed dimensions were less than ten feet by ten feet, the Town advised him that no building permit was required. As a result, the defendant then proceeded to purchase the materials and construct the shed. As I have previously stated, the defendant needs to distinguish between building permit requirements and zoning by-law compliance.
75Section 6.71 of By-law No. 128-04, as amended, defines "Non-complying Building or Structure" as:
Means a building that has been erected prior to November 15, 2001 that has less than the minimum required front, side, flankage and/or rear yard and/or setback or having a greater coverage, density, gross floor area or gross leasable floor than permitted by this By-law.
76Section 5.9.1, as amended, on "Non-complying Building and Structures" states:
Enlargement, Repair or Renovation
A non-complying building or structure, existing as of November 15, 2001, may be enlarged, repaired or renovated provided that the enlargement, repair or renovation:
a) Does not further reduce the minimum required front, side, flankage and/or rear yard and/or setback;
b) Does not increase the lot coverage, if the lot coverage does not comply with this By-law;
c) Does not increase the amount of gross floor area on that part of the lot located within a minimum required yard; and
d) Complies with all other applicable provisions of this By-law.
77I accept the defendant's evidence, contrary to what the Crown may believe, that at no time did the defendant's enlarge accessory structure move its exterior wall closer to the rear yard fence. It was and remains at eighteen inches. The defendant claims that, in keeping with what the Minister intended this provision to address, he had a doghouse which he did not move, but enlarged into the shed that brings this matter before the court. The Minister has said that this is perfectly valid.
78I do not find the defendant's claims to be substantiated. I am not aware of when the doghouse first existed eighteen inches from the rear lot line on the defendants' property. However, I shall give the defendant the most benefit of doubt and assume that it was prior to November 15, 2001. Nonetheless, the defendant, himself, advised this Court that he no longer had a dog. Hence, the accessory building at issue is not an enlarged, repaired or renovated doghouse, but is a shed which stands in the location where a doghouse once existed. Given a doghouse no longer exists, I find, therefore, that this shed replaced the doghouse and does not comply with section 5.9.1 of By-law No. 128-04.
79Also, in response to any questions on "non-conforming use", subsection 15(6) of the Oak Ridges Moraine Conservation Act, 2001 reads:
"Continued Use – (6) No zoning by-law amendment approved by the Minister under clause 10(8)(a) or subsection 13(6) applies so as to prevent the use of any land, building or structure for any purpose prohibited by the zoning by-law amendment if, under subsection (3), that land, building or structure was lawfully used for such purpose on the day that the zoning by-law amendment comes into force so long as it continues to be used for that purpose."
80Section 5.8 of By-law No. 128-04, as amended, provides:
Non-conforming Uses
No land, building or structure shall be used for a purpose prohibited by the provisions of this By-law unless such land, building or structure was lawfully used for that purpose on November 15, 2001 and continues to be used for that purpose.
81Hence, on May 31, 2004, when the By-law was passed into force by the Town, the shed's use would have had to be lawful. The defendant stated that the structure prior to 2009 was as a smaller doghouse. I accept the Crown's submission that there is no evidence the shed exists now as it existed then, as it no longer continues to be used as a doghouse. Hence, a defence of "non-conforming use" fails.
VI. SUMMARY AND CONCLUSION
82In summary, I am satisfied that the defendants own the property located at 49 Muirhead Crescent in the Town of Richmond Hill. That property is zoned "Urban". Section 5.1.4(a) of the Town's By-law No. 128-04, as amended, applies to these lands to establish the minimum rear yard setback of any accessory building or structure. The shed at issue is an accessory structure. It is located on the southeast corner of the defendants' rear lot, eighteen inches from the rear lot line. This distance falls short of the minimum distance required between the property line and this accessory structure. I am satisfied that all of the elements of the offence before this Court have been proven beyond a reasonable doubt.
83I have explored several defences to determine if any of them can be substantiated on a balance of probabilities. The doctrine of res judicata, in particular, issue estoppel and the doctrine of abuse of process do not apply. No officially induced error has been committed. And, in addition, the defence of legal non-complying accessory building or legal conforming use does not succeed.
84Therefore, on the matter before the Court, I find the defendants guilty of the charge as laid. There will be a conviction registered.
85I will hear submissions on penalty, keeping in mind that section 1.6 of By-law No. 128-04, as amended, provides:
Any person or corporation that contravenes any provision of this by-law is guilty of an offence and upon conviction is liable to the fine as provided for in either the Planning Act R.S.O., Chapter P.13 as amended [sic] or Oak Ridges Moraine Conservation Act, 2001, S.O. 2001, Chapter 31.
Released: July 9, 2012
Signed: "Justice of the Peace M. Coopersmith"