Court Information
Court: Ontario Court of Justice
Date: 2016-04-06
Between:
Her Majesty the Queen Respondent
— AND —
A.J.L. Janssen Landscaping Ltd. Appellant
Before: Justice J. Bliss
Heard on: February 22, 2016
Reasons for Judgment released on: April 6, 2016
Counsel
M. Sherwood — counsel for the respondent
D. Scott — counsel for the appellant
Judgment
BLISS J.:
Facts
[1] Anthony Janssen is the owner and operator of A.J.L. Landscaping Limited (Ontario Corporation 793874), a business which operates as a landscaping, road building, excavation, drilling and blasting company primarily in the Muskoka area.
[2] Basil Cook is a farmer. Some of his land abuts a cliff. Over time, rocks have fallen from the cliff onto his field leaving it basically unusable and a hazard to animals. In 2012, Mr. Janssen saw rocks on Basil Cook's property that he wanted to buy and remove for his landscaping business. He approached Mr. Cook with an offer to purchase the rocks for $500 a load. Mr. Cook negotiated an exchange. For $300 a load, Mr. Janssen would remove the rocks and level the field so that Mr. Cook could put up a fence and use the field as a pasture for his cows.
[3] The work, over the course of two days in 2012 and another two days in 2013, attracted the attention of a conservation officer with the Ministry of Natural Resources who is also designated an inspector under the Aggregates Resources Act ("ARA"). The result of the MNR investigation was that A.J.L. Janssen Landscaping Ltd. (Ontario Corp. #793874) and its principal, Anthony Janssen, were charged that between the 1st day of January, 2012 and the 7th day of April, 2013…did commit the offence of unlawfully operate a pit…without the authority of a licence issued under the Act, contrary to the Aggregate Resources Act, R.S.O. 1990, s. 7(1).
[4] Evidence was heard over three days beginning on February 2, 2015 and continued on February 3, 2015 and February 12, 2015. Following argument on February 12, 2015, A.J.L. Janssen Landscaping Ltd was found guilty and fined $500 for each of the four days of removal of material without a licence. The charge against Anthony Janssen personally was stayed.
[5] The appellant appeals, pursuant to s.116 of the Provincial Offences Act. While a number of grounds were set out in the appellant's Notice of Appeal, the appellant's factum and oral argument focused on two:
[6] The definition of "pit" under the Act exempts land excavated for a building or structure on the excavation site. The appellant argues that the Justice of the Peace erred in finding that the primary purpose of the excavation was profit (for the landscaper/appellant) and not for the building of a structure; namely, a fence (for the farmer/landowner).
[7] "Pit" by definition required the excavation to impact the land so as to require rehabilitation. The appellant argues that the Justice of the Peace erred further in finding the land was a "pit" when the evidence at trial was that there was no effect on the land from the appellant's excavation.
Reasons for Judgment
[8] At the outset of her reasons, the Justice of the Peace found no evidence to suggest that the removal of this aggregate or rock was for the purpose of building a structure. Later, when addressing the defence argument that the work was primarily for agricultural purposes to replace a fence line and that the moving of rocks was to be able to reconstruct a fence, the Justice of the Peace found:
When I consider the evidence of Mr. Janssen I found him to be an extremely credible witness. He answered very honestly. He said he saw the boulders. He said he saw the boulders. He had been eyeing them for a number of years. He was impressed by the boulders because they were in their natural state which is preferable for lake-land properties, he testified. He's done this before with other farms. He testified that it was he who approached Mr. Cook and, along these lines, several witnesses testified that this is not a new practice in the area. Several defence witnesses testified that rock removal is necessary to improve the agricultural properties for farming. It would appear from the testimony that the activity on the property did benefit both; it was financial gain to Mr. Janssen and also it was of benefit to Mr Cook because he was able to have the boulders removed in order to construct a new fence so that he could keep his cattle safe.
[9] The Court also heard, through the testimony of Mr. Janssen, that there was a contract which involved a lesser payment for the extra work of levelling the land so that that fence could be constructed.
[10] The Justice of the Peace synthesized the defence argument as being that "the Aggregate Resources Act does not apply here because, simply, debris rock was being removed from the fence line of a farmer's property in the course of normal farming practice to better utilize lands for agricultural purposes which, as a farmer, he is entitled to do. More particularly, the rock had collected at the existing fence line and was being removed so that a fence could be reconstructed on this existing fence line to control the movement and prevent injury to his cattle. The defence contends that this is not a "pit" because the activity was not primarily for aggregate production."
[11] At trial, the defence had argued that the landowner had the right to do with his land as he wished and pointed out that the land in question had been passed by Crown patent in 1892. The Public Lands Act then set out that all minerals on land patent before May 6, 1913 shall be deemed to have passed to the patentee. In support of this claim of an unfettered right to do with farm land as the landowner wished, the defence referred to s.2(2) of the Farm Food Production Protection Act which set out that "no court shall issue an injunction or other order that prohibits a farm from carrying on the agricultural operation because it causes or creates a disturbance". In essence, the argument was that the excavation work was for carrying on an agricultural operation and no court order shall prohibit such from being carried out.
[12] The prosecution referred to Dedrick Bros. Excavating Ltd v. Ontario [2012] O.J. No 4283 (C.A.) ("Dedrick Bros.") which dealt with s.7(1) of the ARA and found that "there is no specified exemption for farm betterment projects".
[13] The Justice of the Peace found the decision in Dedrick Bros. to be binding and wrote:
I find the Dedrick (ph) decision to be on point because it involved, as in the circumstances of the case before this Court, the removal of materials for profit in a landscaping business. Mr. Janssen testified his primary purpose was to purchase the rock. The decision in Dedrick (ph) is binding on this Court. That Court found that there is no exception for agricultural purposes under the Aggregate Resources Act and that is why there is the ability or the option or the remedy to apply for exclusion under s. 1(3) of the Act. Because I am bound by that decision I find that in the circumstances of this case the Crown has proven beyond a reasonable doubt that the site in question was a pit for the purposes of the Aggregate Resources Act.
Standard of Review
[14] On appeal, a court may overturn the decision of the trial justice if it is unreasonable, if the trial court made an error on a question of law, or on any ground if there was a miscarriage of justice.
[15] Should the appeal be allowed, the Court may direct an acquittal be entered or order a new trial. In general, a new trial should be ordered unless there is no evidence to support a conviction.
[16] The respondent submits that I should not interfere with the decision of the Justice of the Peace unless the findings of fact are the product of a palpable and overriding error. A palpable error is one that is obvious, plain to see or clear (Waxman v. Waxman [2004] O.J. No 1785 (CA) at para 296). An overriding error is an error that is sufficiently significant to vitiate the challenged finding of fact (Waxman, supra, para 297).
[17] The role of the appellate court is to review the record with a view to determining whether the trial justice made any errors of fact that are material or was wrong in law in a significant way that would impact upon the results (R. v. Ward 2015 ONCJ 369, [2015] OJ No 3726 (C.J.) at para 14).
[18] It is not the role of the court to overturn factual findings and inferences absent palpable and overriding error. (R. v. Lee Valley Tools 2009 ONCA 387, [2009] O.J. No. 1882 (C.A.) at para 18). Although it is open to find that an inference of fact made by the trial justice is clearly wrong, if evidence exists to support this inference, an appellate court will be hard pressed to find a palpable and overriding error (Housen v. Nikolaisen 2002 SCC 33, [2002] 2 SCR 235 at para 22).
[19] The standard of review on a question of law is that of correctness (Housen v. Nikolaisen, supra, para 8).
The Grounds of Appeal
Analysis
Did the Justice of the Peace err in finding that the primary purpose of the excavation was not for building a "structure"?
[20] S.7(1) of the Aggregate Resources Act reads:
No person shall, in a part of Ontario designated under section 5, operate a pit or quarry on land that is not land under water and the surface rights of which are not the property of the Crown except under the authority of and in accordance with a licence. R.S.O. 1990, c. A.8, s.7(1)
[21] The appellant's argument is that the land in question was farmland belonging to Basil Cook. The land was next to a large cliff. Historically, fences had been built running along the edge of the field. Over time large boulders and rocks had fallen from the cliff and the field was not usable because of the risk of injury to any animals from those fallen rocks. Mr. Cook wanted the field to pasture cattle that he had obtained a few years earlier. He wanted the rocks and boulders removed and the field levelled so he could build a fence and pasture his cattle. The primary purpose of the excavation, the appellant argues, was to build a fence. A fence is a "structure" and the definition of "pit" under the Aggregate Resources Act specifically exempts the removal of aggregate where such was for the purpose of putting up a building or structure.
[22] "Pit" is defined under the Aggregate Resources Act as meaning:
Land…from which unconsolidated aggregate is being or has been excavated, and that has not been rehabilitated, but does not mean land… excavated for a building or structure on the excavation site… (emphasis added)
[23] S. 7(1) deals with operating a pit without a licence. If the work that the appellant did for Mr. Cook did not constitute operating a "pit", then s.7(1) does not apply.
[24] The question for the Justice of the Peace was "what is the primary purpose behind the excavation?" The appellant says that the primary purpose is that of the landowner, in this case, Basil Cook, who retained A.J.L. Janssen Ltd. to remove the rocks and boulders and level that land so that he could build a fence and provide a pasture for his cattle. The primary purpose for the excavation, according to the appellant, is the building of a structure; namely, a fence.
[25] As put at the close of submissions by counsel at trial:
It is our submission that Mr. Janssen, being in the landscaping business, was contracted properly to remove the rock from between the trees on the fence line and to level that land so a fence can be restored. That's the only activity that was going on out there and it was going on at the direction of Mr. Cook for the sole reason that he could carry-on his farming activities
[26] The respondent's position is that primary purpose is that of the excavator, A.J.L. Janssen Ltd.. The purpose of the company is to make a profit, and as such, is required to seek a licence to engage in the kind of excavation work that it provided to Mr. Cook. The purpose of the excavation was commercial; namely, to obtain rocks and boulders to use in the appellant's landscaping business.
[27] The respondent argues that as the appellant was the one who solicited Mr. Cook to remove and purchase the boulders and rocks, he was required to obtain a licence. His primary purpose was a commercial one. It was Mr. Janssen who wanted the rocks as they were attractive for his business and had good market value and he was prepared to pay $500 a load for them. He was the one who approached the farmer as he saw commercial value in the rocks. One week later, Mr. Cook offered that Mr. Janssen could pay him less for the rocks and boulders if he also did some levelling. The levelling provided an incidental benefit to Mr. Cook but was for a secondary purpose. The purpose of the excavation was the removal of the rocks so he could sell them for his landscaping business.
[28] Of note is the respondent's concession during the appeal that if instead of Anthony Janssen approaching Basil Cook, Basil Cook had approached A.J.L. Landscaping to remove the rocks and boulders and level the field, then Basil Cook would be exempt from the licensing scheme as the primary purpose of the excavation would be for the construction of a fence.
Statutory Interpretation
[29] The Appellant argues that the exempting words in the definition of "pit" must be given their plain and ordinary meaning.
[30] Adopting Elmer Driedger's words in Construction of Statutes (2nd ed. 1983), the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd, [1998] 1 S.C.R. 27, set forth the guiding principle of statutory interpretation. "Words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". (Rizzo Shoes, supra, para 21)
[31] S. 10 of the Interpretation Act, R.S.O. 1980 c.219, also referred to in Rizzo Shoes, directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit." (Rizzo Shoes, supra, para 22)
[32] Legislation such as the ARA ought to be interpreted in a broad and generous manner and any doubt arising from difficulties of language should be resolved in favour of the claimant consistent with the scheme of the Act (Rizzo Shoes, supra, para 36). The Aggregate Resources Act is designed to manage environmental resources on Crown and designated private land, provide oversight of site plans, and attach conditions including the setting of fees and the rehabilitation of lands excavated where aggregate is disturbed. Such legislation is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. (Min. of Labour v. Hamilton, [2002] O.J. No. 283 (C.A.) at para 16)
[33] As Laskin J.A. wrote in Ontario (Minister of Transportation) v. Ryder Truck Rental Canada Ltd (2000), 47 O.R. (3d) 171 (C.A.) at 174:
The modern approach to statutory interpretation calls on the court to interpret a legislative provision in its total context. The court should consider and take into account all relevant and admissible indicators of legislative meaning. The court's interpretation should comply with the legislative text, promote the legislative purpose, reflect the legislature's intent, and produce a reasonable and just meaning [Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), at p. 131.] The Supreme Court has repeatedly affirmed this approach to statutory interpretation, most recently in R. v. Gladue, [1999] 1 S.C.R. 688 at p. 704, 171 D.L.R. (4th) 385, where Cory and lacobucci JJ. wrote:
As this Court has frequently stated, the proper construction of a statutory provision flows from reading the words of the provision in their grammatical and ordinary sense and in their entire context, harmoniously with the scheme of the statute as a whole, the purpose of the statute, and the intention of Parliament. The purpose of the statute, in particular, are to be determined on the basis of intrinsic and admissible extrinsic sources regarding the Act's legislative history and the context of its enactment…
[34] The purpose of the Aggregate Resources Act is set out in s.2 of the Act:
(a) To provide for the management of the aggregate resources of Ontario;
(b) To control and regulate aggregate operations on Crown and private lands;
(c) To require the rehabilitation of land from which aggregate has been excavated; and
(d) To minimize adverse impact on the environment in respect of aggregate operations
[35] The Act itself contemplates the potential for provincial and municipal interest and regulation in land use. Under s. 1(3), if the Minister is of the opinion that the primary purpose of an excavation is not for the production of aggregate, he or she may, in his or her absolute discretion, declare that the land is not a pit. If warranted, the Minister shall serve notice, including the reasons, to the clerk of the local municipality in which the excavation is located for their information and comment and may not issue the order until receipt of those comments by the municipalities or 30 days.
[36] What this contemplates is concurrent interest in any "excavation" by both municipal government and provincial agency and enables the municipal government to take such action, or require certain action to be engaged in, pursuant to a municipal licensing scheme.
[37] As noted, the Justice of the Peace felt bound by the decision in Dedrick Bros. The issue in that case was whether s.7(1) of the ARA applied to the "excavator" so as to require the business to seek a licence. The governing words that the Justice of Peace felt bound by was that "there is no specified exemption for farm betterment projects." The Court noted that "this is another indication within the statute that there is no intent to exempt such projects from the licencing requirements of the ARA" (Dedrick Bros., supra, para 19).
[38] The business that the Court of Appeal was dealing with in Dedrick Bros. was a business operation that restored agricultural land. The business removed top soil and levelled the sand knolls, selling the sand and then restoring the land with the top soil to make it arable for farming. All of this was done without a licence to operate a pit or quarry.
[39] At paragraph 22 of that decision, the Court wrote:
The respondent's second argument seems to be that if a licence is required, it is not the contractor but the owner of the pit who must obtain it. Section 7(1) makes it an offence for a person to "operate" a pit. It makes sense that the person who owns and controls the pit is also operating the pit for the purposes of s.7. After all, that person can hire and fire one or more trucking companies to conduct the actual grading operation However, the wording of s.7, which is directed to anyone who "operates" a pit, i.e., "works" the pit, clearly extends to the actual onsite operator, as well.
[40] The distinction I find in Dedrick Bros. from the case at bar is that in the former case, the Court was dealing with the situation where the operator was clearly excavating a pit within the grammatical and ordinary meaning of the definition in the Aggregate Resources Act. All the business operator was doing was excavation. The argument was that the ARA should not be interpreted to include pits that are being excavated, but will be rehabilitated to improve farmland and not for commercial aggregate production (Dedrick Bros., supra, para 18). It is in that context that the Court of Appeal expressed that "there is no specified exemption for farm betterment projects" (Dedrick Bros., supra, para 19).
[41] In the case at bar, the challenge was to whether the work that the appellant was engaged in came within the definition of "pit" because of the excavation and levelling was to facilitate the building of a fence.
[42] The respondent's argument, relying on Dedrick Bros., is that A.J.L. Janssen Ltd. is the operator and therefore it is its purpose that must be considered. The difficulty is that by the same logic, aggregate that a farmer excavates to put up a barn would not be considered a "pit" and not covered by the ARA while the same land would be a "pit" and captured by the ARA if the farmer hires someone to do the same excavation and the same construction. The actions and the impact on the land remains the same, but the actors who are doing the excavation differ. The illogic in this distinction is best demonstrated by the candor in which the respondent conceded during argument that if Mr. Cook had approached Mr. Janssen to clear and level the field so he could build a fence, Mr. Janssen's acts in implementing Cook's purpose would not be captured by the ARA licensing requirement in s.7(1). Instead, since it was Mr. Janssen who initiated the negotiation and the ultimate contract, s.7(1) of the ARA applies.
[43] The appellant submits that the Justice of the Peace erred when she found that there was "no evidence" that the removal of rocks and boulders was for a structure. The appellant argues that the primary purpose of the excavation was to level the field and enable a fence to be built to provide a suitable pasture for Mr. Cook's cows. Pointing to the plain language of s.7(1) of the Act, the appellant argues that land is not a "pit" even if aggregate has been excavated for a "building or structure".
[44] In the absence of a definition of "structure" in the Act, the appellant relies on the Black's Law Dictionary of "structure" as "any construction, production, or piece of work artificially built up or composed of parts purposefully joined together". The appellant argues that a fence is a construction artificially built up or composed of parts purposefully joined together.
[45] Oxford Dictionary defines fence as "a barrier, railing, or other upright structure, typically of wood or wire, enclosing an area of ground to prevent or control access or escape".
[46] Cambridge English Dictionary defines fence as "a structure that divides two areas of land, similar to a wall but made of wood or wire and supported with posts".
[47] The appellant's argument can be summed up as follows: The removal of the rocks and boulders was to build a fence. A fence is a structure. Excavation to build a structure is exempt from the definition of "pit"; therefore, the appellant did not operate a "pit" and the Justice of the Peace erred in find the Appellant guilty of doing so. I agree.
[48] The respondent submits that if the appellant's interpretation is correct then such would allow for the exemption of large scale operations involving the excavation of aggregate in any circumstances where a fence was built. With respect, I disagree. In such a case, the primary purpose for the excavation would be the excavation of aggregate and not the building of a fence. One must look to the bona fides of the intent. In this case, the excavation work authorized by Mr. Cook was to facilitate the building of a fence to enable him to provide a safe pasture for his cattle. As well, the ARA does not exist in a vacuum. The Act itself contemplates municipal interests and municipal licencing schemes governing land use. Even if the ARA did not apply, there may be other provincial legislation or municipal bylaws that will govern land use.
[49] I find that the appeal must succeed on this ground.
A "pit" requires some effect on the land capable of rehabilitation and the evidence at trial was that there was no effect of any kind on the land
[50] The appellant's second argument, which was more forcefully put at trial, was that as there was no impact on the land from the removal of the rocks and boulder, there was nothing to rehabilitate. The appellant submits that the definition of pit contemplates land that requires rehabilitation to invoke the licensing requirements. The Act defines "rehabilitate" as meaning:
to treat land from which aggregate has been excavated so that the use or condition of the land, (a) is restored to its former use or condition, or (b) is changed to another use or condition that is or will be compatible with the use of adjacent land;
The fact that the Justice of the Peace found "no destruction of the environment…and no real damage resulting" from the removal of the rocks and boulders on the Cook farmland, does not, in my view, exempt the applicant from the licensing scheme on the basis that there was "nothing to rehabilitate". "Excavate", as defined in s.1(1) of the Act, "includes the preparation of land for excavation and removal of hill, sand dunes, knolls, stones, and rocks other than metallic ores from the general surface of the ground". In its plain and ordinary meaning, removing boulders and rocks from the surface of the land, constitutes an "excavation" as defined by the Act.
Conclusion
[51] In light of my findings on the first ground of appeal, the appeal is allowed and an acquittal shall be entered.
Released: April 6, 2016
Signed: "Justice J. Bliss"