Court Information

Court File No.: Regional Municipality of Durham 132489, 132490, 132491 and 132492

Date: 2016-06-06

Ontario Court of Justice

Parties

Between:

Lake Simcoe Region Conservation Authority

— AND —

Barbara Saad and Samir Saad

Judicial Officer and Counsel

Before: Justice of the Peace M. Coopersmith

Heard on: January 4, 2016 and January 11, 2016

Reasons for Judgment released on: June 6, 2016

Counsel:

• K. C. Hill, counsel for the prosecution
• The defendants Barbara Saad and Samir Saad on their own behalf

JUSTICE OF THE PEACE COOPERSMITH:

Introduction

[1] There are four Informations before this Court, each containing a single charge. All of them stem from facts arising on the same property and, hence, all four have been heard together in this one trial.

[2] Barbara Saad, as the landowner, and Samir Saad, her spouse, are each charged with two counts, as follows: undertaking development or permitting another person to undertake development in or on an area within the jurisdiction of the Conservation Authority that is adjacent or close to an inland lake, namely Lake Simcoe, that may be affected by flooding, erosion or dynamic beaches; (1) specifically, on August 16, 2011, by placing gabion wire baskets containing rocks, not in accordance with the Conservation Authority permission granted for bank retaining wall and stabilization, and (2) specifically, on May 14, 2013, by placing a shed atop another shed constructed so as to make a two-storey structure on the steeply sloping bank without Conservation Authority permission. These charges are contrary to section 2(1)(a) of Ontario Regulation 179/06, made under the Conservation Authorities Act, R.S.O. 1990, c. C.27, and thereby the defendants are committing offences under s.28 of that Act.

[3] This trial was heard on January 4, 2016 and January 11, 2016. Mr. Brian Burr, an Environmental Officer with Lake Simcoe Region Conservation Authority ["LSRCA"] gave evidence for the prosecution. Samir Saad, Barbara Saad, Christopher Evans, an Engineer, and Robert Nisbet, a contractor, testified for the defence.

I. BACKGROUND

[4] Barbara Saad is the owner of the property located at B24910 Thorah Park Boulevard in the Township of Brock, Regional Municipality of Durham. This property is shown on Map 74 of 117 maps which are filed at the head office of the LSRCA, pursuant to O. Reg 179/06 – Lake Simcoe Region Conservation Authority Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses. The property abuts the east shoreline of Lake Simcoe and is situated in the northeast portion of that Map, just to the north of an inflow and just to the south of Thorah Concession Road 2.

[5] The Map legend shows that this property lies in a "Regulation Area". Section 2(2) of O.Reg. 179/06 delineates all areas described in subsection 2(1) as "Regulation Limit" shown on the series of maps filed at the head office. Hence, O.Reg. 179/06 prohibits undertaking development in these areas unless LSRCA grants permission for such development, which it will do if, in its opinion, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land is not affected by such development.

[6] LSRCA is alleging that the defendants undertook development without LSRCA permission (1) to their back yard, in the form of gabion basket retaining walls for bank stabilization and (2) a two-storey shed situated on and protruding over the edge of the steep backyard slope by the southern property line.

II. FINDINGS

[7] I have carefully reviewed all of the testimony and exhibits provided to me. Based on all of this evidence, the following are my findings.

(a) Bank Stabilization Work

[8] In 2010, Mr. and Mrs. Saad were doing some bank stabilization work at the rear of their property. In the backyard, which slopes down to the lake, the makeshift retaining wall was giving way and soil was moving towards the boathouse that the defendants jointly own with their neighbour to the north. Their engineer, Bert Ofoha, had directed the defendants to cut down some trees in their backyard, to prepare the land to accept gabion baskets.

[9] On July 22, 2010, in response to a complaint, LSRCA Environmental Officer Brian Burr visited the site to find a number of trees cut with high stumps and beams left in the upper area of the bank. As an Environmental Officer, his responsibility was not to oversee projects, but rather as an investigating officer to look into complaints and other such issues.

[10] On November 9, 2010, Barbara Saad filed an "Application for the Development, Interference with Wetlands and Alterations to Shorelines and Watercourses Permit" with the LSRCA. It described the proposed work as "New Garage – addition, shoreline works – Banque (sic) stabilization work". Attached was a site plan and site grading plan drawn up by the defendants' engineer, Bert Ofoha of HMO Limited. The plans showed two gabion stone retaining walls down the slope behind the house and a third L-shaped gabion retaining wall behind the boathouse. This Application was not signed on the back.

[11] On January 10, 2011, Kyle Munro, Environmental Planner at LSRCA, sent an email to Mrs. Saad and HMO Limited regarding the Application she had submitted. It read:

I understand that your engineer (Bert Ofoha, HMO Ltd.) is out of the country and not currently available to discuss the file. I have received the following comments from our Manager of Engineering on the retaining wall design proposed as part of your application for B24910 Thorah Park Blvd:

1. The use of gabion baskets is not typically considered a suitable material for the Lake Simcoe Shoreline. It is suggested that the lower retaining wall (1) be constructed of granite blocks or other similar material.

2. Retaining Walls 2 and 3 should be eliminated from the proposal and the slope re-graded in this area and replanted. Based in the original survey, the only existing retaining wall is located behind the boathouse.

3. In terms of the wall design, the base material below the wall is not typically impervious fill as shown on the current HMO drawing. A proper material needs to be specified for this area along with the level of compaction required.

4. The backs of these types of walls are typically lined with filter fabric.

5. The horizontal dimensions of the lower parts of the retaining walls are missing.

6. The dimensions of the proposed boulders at the shoreline are listed as 3 feet by 3 feet by 3 feet. The width of these boulders in dock detail D-D is listed as 1 foot 3 inches. This discrepancy needs to be fixed. The 3 feet wide boulders are of adequate size; however, they would extend another 2 feet into the lake if this detail is correct.

In order to move forward with our review of your application, the above mentioned issues will need to be addresses. If you have any questions please do not hesitate to contact me via email or by phone at 905-895-1281 x.229.

[12] Mr. Bert Ofoha, the engineer at HMO Limited, advised the defendants that he would deal with Mr. Munro. After re-working the plans and without showing them to the defendants, on March 14, 2011, Bert Ofoha resubmitted the Application on behalf of the defendants. Barbara Saad, the registered landowner, had been having medical issues that prevented her from partaking in this project. Hence, she had delegated the responsibility to her husband, Samir Saad. The signature on the back of the Application read "Samir Saad". However, this signature did not match that which read "S Samir" found on the Landowner Authorization form. The defendant Samir Saad advised this Court that it was not his signature on the Application form.

[13] On April 6, 2011, a two-year Permit No. BRP.2011.003 was issued, expiring on April 6, 2013, and granting permission to the defendants for "construction of addition, detached garage, bank retaining wall and stabilization as shown on plans submitted and marked "approved"". Attached to the Permit were signed plans stamped "Approved Lake Simcoe Region Conservation Authority" and dated "April 6, 2011".

[14] The original plans showing gabion stone basket retaining walls had been deleted from the Permit. Although Mrs. Saad believes the approved plans showed gabion stone basket walls, she is unable to locate such plans stamped "approved" by LSRCA. The "approved" plans attached to the Permit clearly show a U-shaped granite boulder retaining wall to the rear of the boathouse. The cross section unmistakably shows the granite rounded boulder wall. The actual bank behind the house slopes downwards, away from the house towards the lake, and was destined to be re-graded and have stabilization plantings of shrubs and trees. At the top of the bank is an addition to the house and further inland and upslope is the proposed carport/garage.

[15] Also attached to the Permit are six pages of an August 21, 2010 "Geotechnical Investigation Report" that had been originally submitted by the defendants' engineer with his first set of plans in which he had proposed gabion basket construction. As part of "Assessment and Recommendations", it states "The banks are geographically stable against deep-seated failure." And further on, under "Slope Stability Analysis", it reads, inter alia, "Fieldstone/granite retaining wall is to be constructed along the lake-water edge as indicated on the sketch provided in the appendix. Gabion retaining walls (1, 2, & 3) are to be constructed in order to stabilize the existing slope." At the end of the section entitled "Shoreline Erosion", it states, "A site reconnaissance showed that the slope banks are stable and expected to remain the same even after proposed site development had occurred at the subject site. Inclusion (sic), after careful consideration of all available information, analysis, and investigation, it is our opinion that the proposed additions and alterations construction development of a single-family residential dwelling and tile bed on the rear portion of the subject site, will not be affected by the flooding and erosion hazard." Under "Excavations and Backfill Considerations", is written, in part, "The majority of excavated material will consist of topsoil-organic silt and native silty/clayey sand, and native silty clay as identified in the Borehole Log. … The backfilling and compaction operations should be monitored by a representative of HMOL to confirm uniform compaction of the backfill material."

[16] Additionally, attached to the Permit is a letter dated March 17, 2011 (Revised March 18, 2011), from Mr. Ofoha at HMO Limited, to the attention of Kyle Munro, Environmental Planner at LSRCA. The letter addresses Mr. Munro's concerns regarding the defendants' property. The list of the proposed method of construction includes:

3. Excavation will be carried out by hand and all materials will be transported by hand for the proposed retaining wall and site regrading and boulders to be hauled or brought in via shoreline or Lake and no vegetation will be disrupted during the process. Notwithstanding, however, all excavations must comply with the current edition of the Occupational Health and Safety Act, Regulations (213/91) for Construction Projects.

4. A licensed and qualified marine & shoreline contractor to be hired to provide all necessary work as per the submitted drawings and specifications.

5. The content of our Geographical Investigation Study carried out at the subject site will not change as a result of removal of two proposed retaining walls. Changing from crest slope to proposed 3:1 slope, the structural integrity of the slope remains the same.

[17] Mr. Saad picked up the Permit himself because the defendants had started the work and they were eager to finish what they had started. After getting the Permit that contained the "Approved" plans from LSRCA, Mr. Saad noticed that something had changed from the original plans that had been submitted. Instead of three gabion basket walls, there was one U-shaped three-foot round boulder wall behind the boathouse and re-grading and re-planting down the backyard slope. For two weeks, he tried to contact his engineer, Mr. Ofoha, who had mentioned gabion baskets to Mr. Saad, not the boulders the LSRCA plans were showing. Mr. Saad wanted to find out what was going on. Each time he went to Mr. Ofoha's office, the engineer was not there and, in the end, he was unable to locate him. Mr. Saad then decided to have the construction completed based on the old plans.

[18] Mr. Saad hired Mr. Kell, a contractor who had been recommended to him by Mr. Ofoha. Mr. Kell did clearing of the trees on the backyard slope in March and April 2011, prior to the permit having been obtained. After obtaining the Permit, Mr. Saad gave Mr. Kell the originally submitted plans, never telling him the permit showed approved drawings that were different. Mr. Kell last worked on the project at the end of April or first week in May 2011. Mr. Saad then hired Mr. Rob Nisbet as his contractor to continue the work behind the boathouse and in the backyard that sloped towards the lake. He gave Mr. Nisbet the original plans Mr. Ofoha had prepared in which gabion basket retaining walls were shown. Mr. Saad never told Mr. Nisbet that the Permit that had been issued showed different drawings from those he gave him. Mr. Saad felt that because of the slope of the land towards the water, it would have been difficult and, perhaps, dangerous to use machinery or a bulldozer. The lake was too shallow to bring materials such as large boulders in by barge. Contractors had agreed that gabion baskets would be adequate for the retaining wall behind the boat house and for bank stabilization of the backyard slope.

[19] In early July 2011, Rob Nisbet had been contacted by Ted's Excavating regarding the retaining bank at the rear of the defendants' property. Mr. Nisbet had been in the construction business about thirty years, doing landscaping, boathouses, docks, retaining walls and shore construction. He was not a licensed or qualified marine or shoreline contractor, but testified that the work at the defendants' property was not right down at shore level and even the boathouse work was above shore level. He stated that the drawings he was given were stamped with a red stamp and a blue stamp, but he had not read whose stamps they were. The drawings gave the distances and materials to be used. On July 6, 2011, he started preparing the groundwork to start installing gabion baskets. Around July 14th or 15th, Kyle Munro, from LSRCA, showed up and they went over the plans together. They had two different sets of plans: Mr. Munro's drawings showed round boulders or armour stone, while Mr. Nisbet's showed armour stone and/or gabion baskets. Mr. Munro never said anything about Mr. Nisbet's use of gabion baskets. Mr. Nisbet testified that this would not have been the first time an inspector on site did not have updated plans. Mr. Nisbet was also visited by Mr. Burr, who talked about what railings were going to be used, but not about the use of gabion baskets. He was not aware that Conservation Officers have no right to issue stop work orders.

[20] Mr. Nisbet had devised a chute to get the stones down to behind the boathouse because the water was too shallow to bring them in by barge and the slope was too steep to safely use a wheelbarrow or other type of equipment.

[21] On August 16, 2011, Mr. Burr revisited the property to find the workers sending limestone-type rocks down the chute into gabion baskets configured in an L-shape behind the boathouse. There seemed to be infilling behind the other large upper gabion stone retaining wall, which appeared to be over eight feet tall and over thirty inches wide. This configuration created somewhat of an extended terrace to the backyard of the home above the retaining wall. Mr. Burr advised Mr. Saad that the work being done did not appear to be in compliance with the Permit that had been approved and issued. He had concerns that someone could fall off the eight-foot high wall and that failure of the wall could result in downslope movement. As well, Mr. Burr testified that LSRCA's engineers had no assurances that the gabion basket retaining walls would be stable over time. Since there had been no oversight of the project by anyone from HMO Limited, LSRCA was not comfortable about what might be inside the walls. It was up to the applicants to illustrate a secure installation. Mr. Saad advised he was having some problems with his engineer, Mr. Ofoha. Nonetheless, he appeared willing to work with the LSRCA towards compliance.

[22] Mr. Nisbet completed his work sometime in August 2011, after Mr. Burr's visit. Instead of the three gabion basket retaining walls shown in the original unapproved plans, he built only one large wall in the backyard slope and another L-shaped gabion basket wall behind the boathouse. On August 22, 2011, Mr. Burr sent the defendants a registered letter. Paragraph 2 reads:

As unauthorized work has occurred within the regulated area, not in compliance with the valid LSRCA permit, a Violation Notice: BRV.2011.004, outlining the specifics of the offence, has been enclosed with this letter. It is our recommendation that no further work be undertaken within the regulated area until all necessary approvals have been obtained.

[23] Attached to the letter was the Violation Notice stating:

Regulation made under the Conservation Authorities Act, R.S.O. 1990, Chapter C.27, Section 28 and amendments thereto.

Notice is hereby given that you, Samir Saad and Barbara Saad during August in the year 2011 at Township Part Lot 21, Concession 1 (B24910 Thorah Park Boulevard) in the Township of Brock, unlawfully did cause, suffer or allow Unauthorized Development or Interference or Alterations: adjacent or close to an inland lake that may be affected by flooding, erosion or dynamic beaches in violation of Section(s) 2.(1)(a) of Ontario Regulation 179/06.

DETAILS: - Unauthorized development or interference or alterations adjacent or close to Lake Simcoe.

[24] Although Environmental Officer Burr received no reply to his letter from the defendants, he was unable to testify whether the defendants had dialogued with the planning staff at LSRCA.

[25] On December 21, 2011, Officer Burr returned to the property. He noticed that a 2 x 4 frame was being built, supported by cement blocks, on the terrace atop the wall to the rear of the boathouse. Mr. Saad advised that it was a place to store and tidy up construction materials. Officer Burr also noticed that some of the gabion baskets were showing signs of bulging. Instead of a U-shaped retaining wall, there was an L-shaped gabion basket wall along the back and down the side of the boathouse. No trees or shrubs had been planted between the retaining walls and the top slope of the upper bank, where the "approved" plans had called for natural plantings for stabilization of the bank.

[26] Another violation notice was issued in May 2012 (Violation Notice BRV.2012.001) and on January 24, 2013, Mr. Burr sent a reminder letter to the defendants advising that "It continues to be our recommendation that no further work be undertaken within the regulated area until all necessary approvals for the additional works have been obtained. Perhaps we may assist you in addressing our concerns with regard to your endeavours on site." Again, Mr. Burr did not hear from the defendants and did not know if they had dialogued with LSRCA planning staff.

[27] On April 2, 2013, Ms. Beverley Booth, Manager of Planning, Regulations and Enforcement, LSRCA, accompanied Mr. Burr to the defendants' property. They met with the defendants and talked about resolving the issues. The defendants appeared to illustrate general agreement to work with the LSRCA. Ms. Booth pointed out significant safety concerns, especially the large gabion basket retaining walls in the backyard that had no fall protection.

[28] Rob Nisbet provided this Court with pamphlet material on gabion baskets. He also advised that this type of construction has been used for shoreline bank stabilization in other places, for example, in Mt. Albert, which he claims is within the watershed of LSRCA. Although these materials provide background to the type of construction he undertook, I find they are not relevant to whether the defendants' construction was in accordance with the "approved" plans in the LSRCA Permit.

[29] The defendants also called on Mr. Christopher Evans, a structural engineer, as an expert witness. He provided a May 26, 2014 letter he sent to Mr. R. Baldwin, Director of Planning and Development Services at LSRCA. Attached were drawings from his company, E7 Engineering, which were meant to supplement the original permit documentation. The plans show the large three-tiered gabion basket retaining wall near the top of the slope behind the house, along with an L-shaped gabion basket retaining wall behind the boathouse.

[30] Mr. Evans also provided a September 10, 2014 letter he had written to Ms. Beverley Booth, Manager, Planning, Regulations and Enforcement at LSRCA. This letter was in response to one Ms. Booth had sent on August 13, 2014. The letter recognized "that the work completed is not in accordance with the issued LSRCA permit." The letter went on to opine:

Our drawings and certification, together with the HMO Geotechnical report Dated August 21, 2010 which refers to Gabion Basket Retaining walls, should be sufficient to indicate that the walls are stable and structurally sound. However, attached is our analysis of the retaining wall using Maccaferri Gabion Design Software, confirming the wall stability. For reference also attached is the HMO Geotechnical Report.

Backfill compaction is not critical (sic) important with respect to gravity type gabion retaining walls. Over compaction leads to wall distortions. Your comment with respect to work construction was done without inspection by a qualified person may be correct, however our inspection of the completed structure has satisfied us that the work was performed by a qualified contractor. We are also satisfied that the structure is as durable as a Gabion retaining wall in this site can be.

We have always acknowledged that Gabion basket retaining walls are not a system we would recommend for this application. However, our analysis and inspection of the constructed retaining walls indicate that the walls will perform satisfactorily for at least twenty years or more. Failure of the baskets will eventually occur if and when the galvanized wire rusts through and the wall slumps. Natural Gabion basket retaining wall failure on stable slopes is never sudden or catastrophic. Typically the stones fall out of the broken baskets and land on the bank. The gabion stone used inside the baskets has a natural angle of repose close to 40°. It is also important to note that the area behind the walls will never be subjected to heavy loads (traffic or equipment). After the gabion wall starts to fail the soil behind the wall will push out to its natural angle of repose. The wall will also flex and settle over the years from frost and groundwater, as is the nature of gabion baskets, but will not fail.

Gabion retaining walls should be monitored after 10 years or so to ensure the baskets are intact ad (sic) rusting is not occurring. Repairs can be made to deteriorated or damaged sections.

Environmental risk is very small and will be limited to vegetation immediately below the retaining walls should the walls deteriorate to the point the baskets open. Structural risk is limited to the existing boathouse below the lower retaining wall. As the retaining walls age they will eventually rust and fail. The gabion stone in the baskets may dislodge and fall into the rear wall of the boathouse causing damage.

[31] And on June 21, 2015, Mr. Evans provided Mr. Saad with a letter which provided his opinion with respect to the construction of retaining walls and revetments using rounded boulders to replace the original retaining walls on the shore bank at the lake side of the defendants' property. In the last paragraph he writes:

Retaining walls or revetments for slope stabilization using any type of rounded stone, should only be used in applications where the constructed slope is less than 1:1½ or 33.6°. Slopes steeper than 33.6° using loose boulders or stones are difficult to construct and require individual stone placement. Slopes steeper than 1:1 or 45° using rounded stone are unstable and unsafe.

[32] Mr. Evans testified that the rounded granite boulder construction, as shown in the drawings of the approved Permit, retained a slope that was more than 1:1½ and was a 90° vertical wall. This configuration is not appropriate and is dangerous. Any use of such granite boulders would require that they be stepped back on top of each other, rather than piled directly atop one another.

[33] I find Mr. Evans' testimony reliable, but I do not find this after-the-fact evidence relevant to the charges the defendants are facing, that is, whether they complied with the approved Permit for the backyard stabilization project or even applied for or obtained a permit for the two-storey shed construction.

(b) Two-storey Shed

[34] On May 14, 2013, Mr. Burr met with Mrs. Saad. He was investigating a concern about a shed located along the southern property line. Mrs. Saad advised that the shed had been placed there on May 4 and 5, 2013. It replaced the previous shed that had been destroyed in a winter storm by a fallen tree. The defendants had hired a carpenter to build the shed. They asked if they needed a permit and the carpenter advised them that would not be necessary and that he was not building the shed, but merely replacing it. He also advised the defendants that he had built several other sheds in the area, some larger than the eight feet by ten feet pre-fab shed he was putting up for the defendants. The defendants agreed with the carpenter, who then constructed the platform and the shed. The structure consisted of a garden shed atop a larger platform built on the top and into the bank of the upper backyard slope. The platform was larger than the rotting one it replaced and measured about ten feet by fourteen feet. It stuck out over the slope, about six feet above the ground level below. Underneath this platform was another enclosed shed-like structure whose interior measured seven feet by seven feet. The defendants had put in two poles at the front of the lower shed, atop cement sonotubes, and two poles towards the back. They then enclosed the lower shed.

[35] Mr. Burr advised the defendants that no further construction was to be done before management looked into this matter. He could not be sure how secure the shed had been positioned at the top of the slope. There had been no permit, no engineering plan and a shed built on top of a platform that was built on top of another shed. Mr. Burr advised the defendants that they needed to get a permit.

[36] On May 24, 2013, Mr. Burr sent the defendants a registered letter that stated in part:

… On Tuesday 14 May 2013, it was observed that unauthorized site work, namely the construction of a shed complex, had occurred within the LSRCA regulated area without approval.

As such, LSRCA Violation Notice: BRV.2013.002 outlining the specifics of the offence, has been enclosed with this letter. Other unresolved LSRCA concerns remain outstanding on the subject property. It is our recommendation that no further works be undertaken within the regulated area until all necessary approvals have been obtained.

[37] The Violation Notice outlined concerns under section 2(1)(a) of Ontario Regulation 179/06 and cited "DETAILS:- Unauthorized development or interference or alterations adjacent or close to Lake Simcoe."

[38] Mr. Saad went to the LSRCA to get a permit application. He read the section that described a "Minor Permit Application", which included a "storage shed less than 100 square feet in size". Nonetheless, he decided not to apply for a shed permit. Instead, he listened to the carpenter who advised the defendants that he could build the shed without one. In Court, Mr. Saad testified that this was a mistake and he would do anything that was needed to rectify the shed situation.

[39] On August 15, 2013, Mr. Burr again returned to the defendants' property, attempting to serve the summonses that bring the defendants before this Court. He observed that the two-by-four structure above the upper retaining wall had been converted into a gazebo with a canvas roof, three wooden sides, curtains tied back to the posts and wooden stairs on the fourth side. Despite the May 24, 2013 violation notice, more work had been done to the lower shed, as a door and window had been added since the May 14, 2013 visit. As well, there were stairs leading up to the door.

[40] On the evidence before me, I find that the defendants undertook development in the form of a two-story shed on their property without obtaining a permit for permission from the LSRCA.

III. RELEVANT LEGISLATION

[41] The defendants are charged under Subsection 2(1)(a) of O.Reg.179/06 – Lake Simcoe Region Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shoreline and Watercourses. It reads:

Development Prohibited

2. (1) Subject to section 3, no person shall undertake development or permit another person to undertake development in or on the areas within the jurisdiction of the Authority that are,

(a) adjacent or close to the shoreline of the Great Lakes-St. Lawrence River System or to inland lakes that may be affected by flooding, erosion or dynamic beaches, including the area from the furthest offshore extent of the Authority's boundary to the furthest landward extent of the aggregate of the following distances:

(i) the 100 year flood level, plus the appropriate allowance for wave uprush as calculated by the equations provided in the most recent document entitled "Shoreline Flood Elevation Study, Lake Simcoe, Lake Couchiching" available at the head office of the authority,

(ii) the predicted long term stable slope projected from the existing stable toe of the slope or from the predicted location of the toe of the slope as that location may have shifted as a result of shoreline erosion over a 100-year period, and

(iii) where a dynamic beach is associated with the waterfront lands, an allowance in metres inland, determined by the authority, to accommodate dynamic beach movement.

[42] Subsection 2(2) continues:

(2) All areas within the jurisdiction of the Authority that are described in subsection (1) are delineated as the "Regulation Limit" shown on a series of maps filed at the head office of the Authority under the map title "Ontario Regulation 97/04: Regulation for Development, Interference with Wetlands and Alterations to Shorelines and Watercourses".

[43] Section 3 of O.Reg. 179/06 states:

Permission to develop

3. (1) The Authority may grant permission for development in or on the areas described in subsection 2 (1) if, in its opinion, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land will not be affected by the development.

(2) The permission of the Authority shall be given in writing, with or without conditions.

(3) Subject to subsection (4), the Authority's executive committee, or one or more employees of the Authority that have been designated by the Authority for the purposes of this section, may exercise the powers and duties of the Authority under subsections (1) and (2) with respect to the granting of permissions for development in or on the areas described in subsection 2 (1).

(4) A designate under subsection (3) shall not grant a permission for development with a maximum period of validity of more than 24 months.

[44] Provisions in section 28 of the Conservation Authorities Act, R.S.O. 1990, c. C.27 that are relevant to this proceeding provide:

Regulations by authority re area under its jurisdiction

28. (1) Subject to the approval of the Minister, an authority may make regulations applicable in the area under its jurisdiction,

(a) restricting and regulating the use of water in or from rivers, streams, inland lakes, ponds, wetlands and natural or artificially constructed depressions in rivers or streams;

(b) prohibiting, regulating or requiring the permission of the authority for straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse, or for changing or interfering in any way with a wetland;

(c) prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development;

(d) providing for the appointment of officers to enforce any regulation made under this section or section 29;

(e) providing for the appointment of persons to act as officers with all of the powers and duties of officers to enforce any regulation made under this section.

Delegation of powers

(2) A regulation made under subsection (1) may delegate any of the authority's powers or duties under the regulation to the authority's executive committee or to any other person or body, subject to any limitations and requirements that may be set out in the regulation.

Conditional permission

(3) A regulation made under clause (1) (b) or (c) may provide for permission to be granted subject to conditions and for the cancellation of the permission if conditions are not met.

References to maps

(4) A regulation made under subsection (1) may refer to any area affected by the regulation by reference to one or more maps that are filed at the head office of the authority and are available for public review during normal office business hours.

Offence: contravening regulation

(16) Every person who contravenes a regulation made under subsection (1) or the terms and conditions of a permission of an authority in a regulation made under clause (1) (b) or (c) is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to a term of imprisonment of not more than three months.

Limitation for proceeding

(16.1) A proceeding with respect to an offence under subsection (16) shall not be commenced more than two years from the earliest of the day on which evidence of the offence is discovered or first comes to the attention of officers appointed under clause (1) (d) or persons appointed under clause (1) (e).

Orders

(17) In addition to any other remedy or penalty provided by law, the court, upon making a conviction under subsection (16), may order the person convicted to,

(a) remove, at that person's expense, any development within such reasonable time as the court orders; and

(b) rehabilitate any watercourse or wetland in the manner and within the time the court orders.

Non-compliance with order

(18) If a person does not comply with an order made under subsection (17), the authority having jurisdiction may, in the case of a development, have it removed and, in the case of a watercourse or wetland, have it rehabilitated.

Liability for certain costs

(19) The person convicted is liable for the cost of a removal or rehabilitation under subsection (18) and the amount is recoverable by the authority by action in a court of competent jurisdiction.

Definitions

(25) In this section,

"development" means,

(a) the construction, reconstruction, erection or placing of a building or structure of any kind,

(b) any change to a building or structure that would have the effect of altering the use or potential use of the building or structure, increasing the size of the building or structure or increasing the number of dwelling units in the building or structure,

(c) site grading, or

(d) the temporary or permanent placing, dumping or removal of any material, originating on the site or elsewhere; ("aménagement")

"hazardous land" means land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion, dynamic beaches or unstable soil or bedrock; ("terrain dangereux")

"pollution" means any deleterious physical substance or other contaminant that has the potential to be generated by development in an area to which a regulation made under clause (1) (c) applies; ("pollution")

"watercourse" means an identifiable depression in the ground in which a flow of water regularly or continuously occurs; ("cours d'eau")

"wetland" means land that,

(a) is seasonally or permanently covered by shallow water or has a water table close to or at its surface,

(b) directly contributes to the hydrological function of a watershed through connection with a surface watercourse,

(c) has hydric soils, the formation of which has been caused by the presence of abundant water, and

(d) has vegetation dominated by hydrophytic plants or water tolerant plants, the dominance of which has been favoured by the presence of abundant water,

but does not include periodically soaked or wet land that is used for agricultural purposes and no longer exhibits a wetland characteristic referred to in clause (c) or (d). ("terre marécageuse").

IV. SUBMISSIONS AND ANALYSIS

(a) Submissions

[45] The prosecution submits that there is no dispute. The defendants' lands are within the jurisdiction of LSRCA. They are shown on Map 74, made under O.Reg. 97/04, as "Regulation Area". The defendants undertook development to their property (1) not in conformity with the permission granted for such development (gabion basket retaining walls) and (2) without permission of LSRCA (the two-storey shed). In 2010, the backyard retaining wall work had begun without a permit. The defendants were notified and invited to make an Application. They selected Mr. Ofoha to represent them. His initial plan showed three gabion basket retaining walls. Revisions were made and a Permit issued approving one U-shaped granite boulder retaining wall behind the boathouse and re-grading and tree and shrub plantings to the slope down the back of the house to Lake Simcoe. The defendants were aware of the revisions, for example, through a January 10, 2011 email sent to Mrs. Saad by Kyle Munro, Environment Planner at LSRCA. The defendants had hired Mr. Ofoha as their engineer to represent them and the prosecution found it hard to believe the defendants were not communicating with their engineer during the revisions process.

[46] The prosecution further submits that the defendants are alleging ambiguity in the documents attached to the Permit that was issued. For example, they point to a paragraph contained in HMO Limited's August 21, 2010 Geotechnical Investigation Report that was prepared prior to amendments being made and that references gabion baskets. However, LSRCA states that the plans that were stamped "approved" clearly showed the one U-shaped boulder retaining wall behind the boathouse and re-grading and plantings down the backyard slope towards the lake. No gabion basket construction is shown in any of the "approved" diagrams.

[47] Moreover, when Mr. Saad picked up the Permit, he noticed the plans were different from what had originally been proposed. For two weeks, he tried unsuccessfully to reach his engineer. Having failed to do so, he decided, on his own and without getting advice from elsewhere, to give the original plans to his contractors.

[48] The defendants claim that the August 21, 2010 Geotechnical Report from HMO Limited that was attached to the Permit, mentioned gabion baskets. Furthermore, Kyle Munro and Rob Nisbet compared the two different sets of drawings and no mention was made that the defendants could not proceed. During construction, it was more feasible to use gabion stones because no one could lift the boulders, the slope of the backyard was not conducive to large machinery and Lake Simcoe was too shallow to allow the heavy boulders to be brought in by barge.

[49] The defendants admit that they did not apply for or receive a permit prior to constructing the two-storey shed. Mr. Saad said he would now do whatever is necessary for compliance, including undoing the lower shed enclosure.

(b) Determining whether the developments undertaken on the defendants' property complies with the requisite legislation

[50] To begin, there is no dispute – Barbara Saad is the owner of the property located at B24910 Thorah Park Boulevard in the Township of Brock. Samir Saad is her spouse and due to her health, she delegated oversight of the projects to him. I am satisfied that the bank stabilization project involved the construction of both a U-shaped granite boulder retaining wall behind the boathouse and site re-grading and landscaping down the backyard slope. As such, this project is captured by the definition of "development" found in section 28(25) of the Conservation Authorities Act. As well, the property is clearly situated in a Regulation Area as provided by subsection 2(2) of O.Reg. 179/07 and illustrated on Map 74 under O.Reg. 97/04. Consequently, I am satisfied that the defendants cannot undertake or permit another person to undertake development on their property without first being granted permission to do so by LSRCA.

[51] By Permit No. BRP.2011.003, on April 6, 2011, the defendants were granted permission to undertake the bank stabilization project on their property in a manner that satisfied LSRCA that, "in its opinion, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land will not be affected by the development", as required under subsection 3(1) of O.Reg. 179/04. The "approved" plans showed a U-shaped granite boulder wall behind the boathouse and re-grading and re-planting down the backyard bank towards Lake Simcoe. Instead, the defendants had gabion basket retaining walls built, the wall behind the boathouse done in an L-shaped configuration, and no re-grading and landscaping undertaken on the backyard slope.

[52] In the end, I am satisfied on the evidence before me and find that the defendants undertook developments for bank stabilization to their property located at B24910 Thorah Park Boulevard in the Township of Brock in a manner that was not in accordance with permission granted to them under LSRCA Permit No. BRP.2011.003.

[53] Also, there is no dispute that the defendants undertook the construction of a two-storey shed by their southern property line, again, without obtaining permission, as was required under O.Reg. 179/06.

[54] For all of the above reasons, I am satisfied that the prosecution has proven beyond a reasonable doubt that Mr. Saad undertook bank stabilization and Mrs. Saad, as the landowner, permitted him to do so, in an area within which permission of such development is needed from LSRCA. The development was not in accordance with the permission granted and, hence, the defendants have contravened Section 2(1)(a) of O. Reg. 179/04 and each of them, thereby, has committed an offence under section 28 of the Conservation Authorities Act.

[55] Additionally, I find the prosecution has proven beyond a reasonable doubt that Mr. Saad undertook the construction of the two-storey shed and Mrs. Saad, as the landowner, permitted him to do so, in an area within which permission of such development is needed from LSRCA. A permit was neither applied for nor granted and, hence, the defendants have contravened Section 2(1)(a) of O. Reg. 179/04 and each of them, thereby, has committed an offence under section 28 of the Conservation Authorities Act.

(c) Determining the category of the offence as a strict liability offence

[56] Given the prosecution has satisfied its burden of proving the defendants committed the offences beyond a reasonable doubt, the onus shifts to the defendants to bring their defence on a balance of probabilities. In order to determine the defences available to the defendants, one must determine into which of the three categories set out in R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, this offence fits. Justice Dickson, for the Court, writes:

I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case.

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

[57] As stated above, public welfare offences or regulatory offences are prima facie strict liability offences. Moreover, LeBel J., writing for the Supreme Court of Canada in Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., 2006 SCC 12, [2006] 1 S.C.R. 420, at paragraph 17 writes:

Absolute liability offences still exist, but they have become an exception requiring clear proof of legislative intent. This intent can be deduced from various factors, the most important of which would appear to be the wording of the statute itself.

[58] Furthermore, I have looked at the four factors set out by Justice Dickson, above: (1) the overall regulatory pattern of the legislation; (2) the subject matter of the relevant legislative provisions; (3) the importance of the penalty; and (4) precision of the language used. Given these four factors and the presumption of regulatory offences being strict liability offences, with absolute liability offences having become the exception and requiring clear proof of legislative intent, I am satisfied that the offences before this Court are strict liability offences.

(d) Defences available to the defendant

[59] Since the prosecution has proven its case beyond a reasonable doubt, it now turns to the defendants to show due diligence or any other defence available to them in dealing with strict liability offences. In accordance with section 80 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, ["POA"] Barbara Saad and Samir Saad may rely upon whatever common law defences may be appropriate in the circumstances:

80. Common law defences – Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of offences, except in so far as they are altered by or inconsistent with this or any other Act.

(i) Officially induced error of law

[60] In defence evidence and submissions, the defence of officially induced error of law was implied by Mr. and Mrs. Saad. They indicated that they followed the original plans for the bank stabilization project and that neither Mr. Munro nor Mr. Burr from LSRCA advised them to do otherwise. Moreover, within the approved Permit, their engineer's August 21, 2010 Geotechnical Investigation Report made a reference to gabion baskets.

[61] As stated by Lacourciere J.A., writing for the Ontario Court of Appeal in R. v. Cancoil Thermal Corp., [1986] O.J. No. 290:

But, although it may at times overlap with the defence of due diligence, the defence of "officially induced error of law" is separate and distinct and can be asserted, in the same way was as other defences.

[62] This defence of officially induced error in law may seem counterintuitive in light of section 81 of the POA, which reads:

81. Ignorance of the law – Ignorance of the law by a person who commits an offence is not an excuse for committing the offence.

[63] However, it is explained at paragraph 22 of Lévis (City), supra, 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] 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] 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.

[64] In his minority opinion in R. v. Jorgensen, [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. …

[65] Lamer C.J. established that once it is determined that the error was one of law, there are five elements or steps the defendant must prove in order to establish the defence of officially induced error of law. He begins at paragraph 28 of Jorgensen, supra:

1. The defendant must have considered the legal consequences of his/her actions and sought legal advice;

2. The legal advice obtained must have been given by an appropriate official;

3. The legal advice was reasonable in the circumstances;

4. The advice obtained must also have been erroneous; and

5. The person receiving the advice relied on it.

[66] Finally, Lamer C.J. adds the following procedural considerations, at paragraphs 37 and 38:

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] 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 question of whether officially induced error constitutes an excuse in law is a question of law or of mixed law and fact. While a jury may determine whether the accused is culpable, and hence whether this argument is necessary, it is for a judge to determine whether the precise conditions for this legal excuse are made out. Only the trial judge is in a position to determine if a stay should be entered. The elements of the officially induced error excuse are to be proven on a balance of probabilities by the accused.

[67] I have already determined that the bank stabilization development undertaken by the defendants contravenes the requirements under O.Reg. 179/06. Hence, I am satisfied that an error in law has been committed.

[68] An error in law having been made, I move to the next step set out by Lamer C.J., wherein the defendants must demonstrate that they considered the legal consequences of their actions. From the evidence provided, I am satisfied that Mr. and Mrs. Saad are acutely aware that their property is located in a regulated environment and that LSRCA is responsible for overseeing compliance with the laws which regulate these lands. As such, the defendants should have been well aware of the potential legal consequences for undertaking actions not in accordance with the permission of LSRCA and not in compliance with the laws. They cannot assume that their actions in constructing the walls, as they did, were permissible.

[69] Step two requires that the advice obtained came from an appropriate official. As stated by Lamer C.J. in Jorgensen, supra, "the official must be one whom a reasonable individual in the position of the accused would normally consider responsible for advice about the particular law in question." It is the defendants' testimony that they relied upon the minor reference in the Geotechnical Investigation Report, the advice that heavy machinery could not be used on the slope and that the boulders could not be brought in by barge because the waters were too shallow and the fact that Mr. Munro did not direct them to construct differently from the gabion basket configuration. However, Mr. Munro is not a compliance official at LSRCA and the sources of the other advice were not from officials at LSRCA. Furthermore, when Environmental Officer Burr from LSRCA, also not a compliance enforcement officer, sent the defendants a violation notice on August 22, 2011, neither defendant contacted him personally to find out what was going on. Therefore, I am satisfied that the defendants were self-servingly selective in determining what and whose advice to follow. At no time did an official from LSRCA advise them to build the retaining walls in the manner they were built. In fact, Kyle Munro's January 10, 2011 email to Mrs. Saad suggested to them that gabion baskets were not typically used for the Lake Simcoe Shoreline and that only one wall, not two or three walls, be built of granite blocks or similar material. The defendants have failed to show, on a balance of probabilities, that the advice they obtained came from an appropriate official at LSRCA.

[70] Although not incumbent upon me to proceed further along this five-step analysis, I find that in the third step, determining that in the circumstances the advice was reasonable, in most cases, does not pose a difficult barrier to overcome. As stated by Lamer C.J. in Jorgensen, supra, at para. 33, "As an individual relying on advice has less knowledge of the law than the official in question, the individual must not be required to assess reasonableness at a high threshold. It is sufficient, therefore, to say that if an appropriate official is consulted, the advice obtained will be presumed to be reasonable unless it appears on its face to be utterly unreasonable."

[71] In the case before this Court, I find that the individual seeking to rely upon the defence of officially induced error of law is not in the same position as just any responsible citizen. Here we have regulated land development. Here we have defendants who knew or reasonably ought to have known what was expected of them under the approved Permit. As early as January 10, 2011, Kyle Munro sent Mrs. Saad an email indicating that the design of the bank stabilization project originally proposed on their behalf by the defendants' engineer, Mr. Ofoha, was unacceptable. There was only one set of "approved" plans in which it was not difficult to understand that gabion baskets were out and granite boulders were in. In fact, Mr. Saad knew something had changed, as he tried to contact Mr. Ofoha for two weeks to find out what was going on. When he could not find his engineer, he proceeded in the fashion of his choosing, without contacting anyone at LSRCA.

[72] This brings me to step four, where I must determine whether the defendants have proved on a balance of probabilities that the advice provided by anyone at LSRCA was erroneous. It is here that I also find the defence of officially induced error is unsuccessful. In proving the elements of these offences, the prosecution already has "established what the correct law is, from which the existence of error can be deduced." [See Jorgensen, supra.] Nonetheless, at no time did LSRCA give the defendants permission to construct gabion basket retaining walls – neither the large wall at the top of the slope behind the house, nor the L-shaped one behind the boathouse was ever approved in any permit provided to the defendants. Hence, this excuse cannot operate.

[73] Finally, should I be in error in any of the steps above, which I do not accept, I will continue with the fifth and final step to assess the overall reasonableness of the defendants' reliance on the advice provided to them in committing the offence. On this point, Lacourciere J.A., writing for the Court of Appeal in Cancoil Thermal Corp., supra, elaborates:

In order for the accused to successfully raise this defence, he must show that he relied on the erroneous legal opinion of the official and that his reliance was reasonable. The reasonableness will depend upon several factors including the efforts he made to ascertain the proper law, the complexity or obscurity of the law, the position of the official who gave the advice, and the clarity, definitiveness and reasonableness of the advice given.

[74] The defendants made no effort to contact LSRCA once the Permit was issued with drawings different from those originally submitted. Instead, Mr. Saad gave his contractor the original set of plans. Nor did the defendants contact Mr. Burr at LSRCA, as the author of the Violation Notices that recommended no further work be undertaken, to even ask for advice or find out what was going on. The advice given by LSRCA in Mr. Munro's January 10, 2011 email and again in the plans stamped "Approved" were clear, definitive and reasonable. Nonetheless, the defendants took no action to question anyone at LSRCA to determine concerns regarding differences in two sets of plans and to find answers specific to their particular situation, for example, why there was a reference to Gabion baskets in the Geotechnical Investigation Report attached to the Permit. Moreover, their own engineer's letter dated March 17, 2011 (revised March 18, 2011), which was also attached to the Permit, referenced only one boulder wall, which they did not follow (item 3.), a licenced and qualified marine and shoreline contractor was to be hired, which was not done (item 4.), and removal of two of the originally proposed three retaining walls, which they also did not follow (item 7.). They turned a blind eye to any advice that did not fit their agenda, and then selectively attempted to rationalize undertaking developments on their property in a fashion of their own choosing.

[75] In summary, there was an error in law made by the defendants in not obtaining permission from LSRCA to configure the bank stabilization project on their property in the manner they chose to do. Nonetheless, for the reasons I have provided, the defence of official induced error of law on a balance of probabilities fails and these proceedings will not be stayed.

[76] With respect to the two-storey shed, I am satisfied that the defendants are not seeking to establish a defence of official induced error. They were told by LSRCA that they needed to apply for a permit. They simply chose to listen to their carpenter and, once again, ignore the advice of LSRCA.

(ii) Defence of due diligence

[77] In assessing a defence of due diligence on a balance of probabilities, the evidence is clear – the defendants did not use reasonable care to prevent the offence from being committed. Continuing with my analysis of the defence of due diligence, at paragraph 28 of R. v. Alexander, [1999] N.J. No. 19, the Newfoundland Court of Appeal determined that,

The accused must establish on a balance of probability that he or she took reasonable steps to avoid committing the statutorily-barred activity. It is not sufficient to simply act reasonable in the abstract or take care in a general sense.

[78] Although I am not bound by Newfoundland case law, I am persuaded by it, and further I am bound to follow Tarnapolsky J., delivering the judgment for the Ontario Court of Appeal in R. v. Kurtzman (1991), 4 O.R. (3d) 417 (C.A.) at 429,

The due diligence defence must relate to the commission of the prohibited act, not some broader notion of acting reasonably.

[79] In determining that the defendants did not exercise due diligence with respect to the particular matters that brings them before this Court, I am guided by many of the fourteen factors originally set out by Hackett J., in R. v. Commander Business Furniture Inc., [1992] O.J. No. 2904 (Ont. Ct. - Prov. Div.).

A number of factors have been identified by the courts which must be weighed and balanced in assessing due diligence. These include:

1. the nature and gravity of the adverse effect;

2. the foreseeability of the effect including abnormal sensitivities;

3. the alternative solutions available;

4. legislative or regulatory compliance;

5. industry standards;

6. the character of the neighbourhood;

7. what efforts have been made to address the problem;

8. over what period of time and promptness of response;

9. matters beyond the control of the accused including technological limitations;

10. skill level expected of the accused;

11. the complexities involved;

12. preventative systems;

13. economic considerations; and

14. actions of officials.

[80] Obviously, not all fourteen factors are particularly relevant to the matter before this Court. The first consideration is examining the nature and gravity of the adverse effect. The defendants, by not complying with the Permit requirements for the bank stabilization project, in an area identified for shoreline hazard and wave uprush, potentially create a risk of erosion of their banks that slope down to Lake Simcoe. Furthermore, even their expert witness, Mr. Evans, indicated that gabion baskets are not recommended for this application and they have a life expectancy of about twenty years before they may rust out, stones dislodge and roll down the slope towards the lake and the potential for erosion returns.

[81] I also find that the two-storey shed, built without a permit is serious. Firstly, it is built partially protruding over the top of the upper bank. As a unit, the floor space is much greater than one hundred square feet referenced for a minor application. The upper shed, being eight feet by ten feet, is eighty square feet. Add to this the seven feet by seven feet, or forty-nine square feet for the lower part of the structure. Together, the available square footage of this two-storey shed is one hundred and twenty-nine square feet. Without first obtaining a permit to build this two-storey structure, the defendants risk failure of the upper bank where it is located and the structure moving down the slope and even into Lake Simcoe.

[82] The second factor is the foreseeability of the effect. This is an objective test of what is expected of a reasonable person, and not whether the defendants personally would have foreseen the effect of building the bank stabilization and the two-storey shed as they did. I am satisfied that the defendants were aware of what needed to be done and a reasonable inference can be drawn that anyone viewing these matters objectively would reasonably appreciate the foreseeability of the effect the defendants' actions would have on the banks of their property that abut Lake Simcoe.

[83] In looking to the alternative solutions available, the defendants should reasonably have known that clarification of the Permit drawings was required before work continued to the bank stabilization development. If they felt the approved plans were not feasible, discussions with LSRCA may have provided them with alternatives. However, they made no effort to even look for such alternatives. As well, they knew a building permit was the alternative they should have chosen before building the two-storey shed. If there were any doubts, LSRCA, not their carpenter, was where they should have gone to assist them in their decision making.

[84] The legislation is not complex. Subsection 2(1)(a) of O.Reg. 179/06, which is subject to section 3, requires that the defendants obtain permission from LSRCA for development on their property. After getting such permission, they ignored it and undertook the bank stabilization not in accordance with the permission granted. And, after being told by LSRCA that they needed a permit, they decided to build the two-storey shed without even attempting to get permission from LSRCA.

[85] There are other factors I also consider relevant to the defence of due diligence. For example, I find no effort made by the defendants to address the problems. Although there have been talks of cooperation, I can find no measures taken by the defendants to make any changes to what they have done. Instead, they attempted to get the opinion of another engineer to show the banks, as constructed with the gabion basket retaining walls, are stable. These actions miss the point.

[86] The bank stabilization issue goes back about six years, with little if any response to Mr. Burr's violation notices or attempts to comply with the permission that has been granted. The Permit was not a carte blanche to do as they chose to do, as the Permit drawings were very specific and clear. If the defendants felt there were technical limitations to LSRCA's configuration of the bank stabilization plans, these limitations were not beyond their control and dialogue with LSRCA could have mitigated these technological difficulties of getting boulders down the steep slope or brought in by barge. In the evidence before me, I find that at no time did the defendants successfully attempt to convey these concerns to LSRCA.

[87] Certainly there were skill levels needed and complexities in ensuring an acceptable outcome for the bank stabilization project and the two-storey shed. Mr. Munro's January 10, 2011 email to Mrs. Saad outlined LSRCA concerns, yet the defendants had the bank stabilization project constructed as they chose to do it. The defendants hired an engineer and a contractor, yet proceeded contrary to the Permit without the engineer when Mr. Ofoha could not be contacted. Although Mr. Munro and Mr. Burr, officials from LSRCA, visited the worksite and may not have advised the defendants to stop work, neither of them was in a position with capacity to do so. And even after Mr. Burr issued a Violation Notice for the two-storey shed, the defendants continued to construct and further enclose the lower shed.

[88] Finally, the defendants relied on their lack of skill level. I am not expecting a higher skill level or a higher standard of care than is expected of anyone else in their position. As stated by Fitzpatrick, J. in R. v. Courtaulds Fibres Canada (1992), 76 C.C.C. (3d) 68 (Ont. Ct. - Prov. Div.):

Reasonable care and due diligence do not mean superhuman efforts. They mean a high standard of awareness and decision, prompt and continuing action. To demand more, would, in my view, move a strict liability offence dangerously close to one of an absolute liability.

[89] Nonetheless, I cannot lower the standard expected of the defendants below legislative requirements. The question of what the defendants must prove to show due diligence as a valid defence to the specific charge before this Court must be viewed in the setting of the incidents that existed from 2010 onwards. The problem to be addressed is ensuring compliance with the Conservation Authorities Act and O.Reg 179/06, in particular, compliance with Permit requirements on undertaking any development on the defendants' property. In my view, non-conformity with such requirements leaves the banks of Lake Simcoe at risk of erosion and other hazards. And gaining the knowledge for and adhering to compliance is not requiring the defendants to use superhuman efforts, nor is requiring them to have in place some reasonable system to ensure they comply with what the legislation requires of them.

[90] I cannot accept the defence of due diligence in light of my analysis of the evidence and in the particular circumstances. In my view, the defendants have not proven that every precaution reasonable in the circumstances was taken and I find that the defendants have failed to establish a defence of due diligence on the balance of probability.

V. CONCLUSION

[91] In conclusion, considering the charge, the plea, the evidence of the witnesses, and the exhibits, on the totality of the evidence before this Court, the elements of the offences with which the defendants have been charged have been made out beyond a reasonable doubt. For the reasons I have given, the defence of officially induced error of law has not been established, even on a balance of probabilities. Hence, a stay of the proceedings is inappropriate. Furthermore, given that this is a strict liability offence, I have considered the evidence provided in a due diligence defence to this charge. I have found that neither defendant exercised due diligence or reasonable care on a balance of probabilities, which would have prevented them from committing the offences.

[92] Therefore, on the totality of the evidence, I find the defendants, Barbara Saad, as landowner and Samir Saad, guilty of undertaking development or permitting another person to undertake development in or on an area within the jurisdiction of the Conservation Authority that is adjacent or close to an inland lake, namely Lake Simcoe, that may be affected by flooding, erosion or dynamic beaches; (1) specifically, on August 16, 2011, by placing gabion wire baskets containing rocks, not in accordance with the Conservation Authority permission granted for bank retaining wall and stabilization, and (2) specifically, on May 14, 2013, by placing a shed atop another shed constructed so as to make a two-storey structure on the steeply sloping bank without Conservation Authority permission. A conviction will be registered.

Released: June 6, 2016

Signed: "Justice of the Peace M. Coopersmith"