Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 06 27 COURT FILE No.: Regional Municipality of Durham 2860 999 00 3468406F

BETWEEN:

THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON

— AND —

VAN DRUNEN AND SONS GRAVEL LIMITED

Before: Justice of the Peace M. Coopersmith

Heard on: March 28, 2023 Reasons for Decision on the Motion released on: June 27, 2023

Counsel: A. Noguera, agent for the prosecution R. Uukkivi, counsel for the defendant Van Drunen and Sons Gravel Limited

JUSTICE OF THE PEACE COOPERSMITH:

[1] On May 26, 2022, Van Drunen and Sons Gravel Limited was charged under Part 1 of the Provincial Offences Act, R.S.O. 1990, c.P.33, for encumbering the highway near 106 Auburn Lane in Clarington, contrary to s. 22.3 of The Corporation of the Municipality of Clarington, By-law No. 2012-006, Boulevard By law (17 June 2013), as amended.

[2] Section 22.3 reads:

No person shall encumber or damage any highway

[3] In section 1 - Definitions, of the By-law:

“encumber” means to block, hamper or impede through the placement or deposit of any object or material.

[4] On March 28, 2023, the prosecution’s only witness, Municipal By-law Enforcement Officer David Williams, testified and the prosecution closed its case. Defence then brought a motion for a non-suit, requesting the charge against the defendant be dismissed. They provided four reasons the prosecution had failed to establish a prima facie case.

I. ISSUES:

[5] The following four reasons form the basis upon which the defence is bringing its motion for a non-suit:

1. Under the by-law, the delivery of the bin to the site is not an offence and the evidence did not establish that it was encumbering a municipal roadway.
2. Birk’s Landscaping Inc. or the owner of the property is responsible for the bin because at law they are known as the bailee as someone who has taken possession of the bin.
3. The permit issued by the municipality specifically permits the activity and there is no evidence the bin is there in contravention of the permit.
4. There is no evidence Van Drunen and Sons Gravel Limited committed an offence that is capable of acceptance by the court.

[6] Even if the court accepts Officer Williams’ evidence, based on these four points, the defence submits the Court cannot convict this defendant.

II. THE LAW:

[7] In a request for a non-suit or directed verdict, the trial justice is being asked to find that the prosecution has not established a prima facie case. A prima facie case exists where there is some evidence on each element of the offence which, if believed by a trier of fact, could support a conviction. The evidence is not weighed, nor are findings of credibility, or assessment of reliability and sufficiency made. The test is whether there is some evidence on all the elements of the offence: U.S.A. v. Sheppard, [1977] 2 S.C.R. 1067; R. v. Charemski, [1998] 1 S.C.R. 679. Although direct evidence on each element of the offence makes the justice’s task complete, circumstantial evidence may be relied upon and the test for a non-suit remains the same. The justice must bear in mind that, “this is not a motion for dismissal at the end of the trial based on reasonable doubt, insufficiency of evidence, credibility or reliability.” Rather, as stated in Sheppard, supra, the question remains “Is there any evidence upon which a reasonable jury, properly instructed, could convict?”: R. v. Cory, 2004 ONCJ 437, at paras 21-22.

III. ANALYSIS:

[8] The following are the issues defence counsel is asking me to consider in order to grant the motion for a non-suit and dismiss the charge against it.

1. Under the by-law, the delivery of the bin to the site is not an offence and the evidence did not establish that it was encumbering a municipal roadway.

[9] Defence submits that Officer Williams’ opinion was that the bin was encumbering the roadway because vehicles would have to swerve into the oncoming lane to proceed past it. However, Officer Williams indicated there was no issue with a truck that was parked nearby on the side of the road and there are no restrictions on parking. If the parked truck was not encumbering the roadway, then the same should apply to the bin placement on the side of the road right behind the truck.

[10] The prosecution submits that the placement of a large bin on the roadway clearly obstructs traffic as it is a large stationary object in a live lane of traffic that cannot easily be moved. Any vehicle passing along the street would have to manoeuvre around the bin to move past it. Furthermore, the bin would encumber a vehicle from lawfully parking in that spot.

[11] Based on Officer Williams’ evidence, I find that since the parked truck was not encumbering the roadway, then it defies logic that the bin would be encumbering it. As with the bin, any vehicle that is driving pass the truck requires movement into the oncoming lane of traffic. The roadway would not be blocked or obstructed or made impassable by the bin. I do not find that waiting for oncoming traffic to pass before going around the bin or truck would hamper or impede any vehicle from passing along the roadway. To find otherwise would result in municipalities having to prohibit parking altogether on innumerable residential streets in order to allow movement of passing motor vehicles without moving into any part of the lanes for oncoming traffic. In the end, if parking was not prohibited, then to be fair and equitable, the municipalities would be laying charges against tens of thousands of vehicle owners who, like the bin, have their vehicles parked on the side of these roadways encumbering the highway. Such action is neither necessary nor desirable in our communities.

[12] More importantly, the prosecution’s argument regarding the bin being a ‘large immovable object’ is inconsistent with the evidence as presented by Officer Williams in Exhibit 3. These photographs illustrate that the bin is attached to a truck, with wheels on the bin which would facilitate movement when pulled by the truck. Moreover, the wheels and attachment on the bin would allow it to be moved from and returned to the roadway by a bobcat or any other similar type of vehicle at any time.

2. Birk’s Landscaping Inc. or the owner of the property is responsible for the bin because at law they are known as the bailee as someone who has taken possession of the bin.

[13] Defence submits that the rental company should not be held responsible for the actions of the ‘bailee’, or person who is renting and using the bin and has control over it. There was no evidence presented that Oshawa Sand and Gravel Supply, whose name was clearly visible on the bin, was in control of it. The only evidence is that Birk’s Landscaping Inc., the name shown as the Applicant in the “Road Occupancy Permit Application” that was issued by the municipality, had control over the bin.

[14] Furthermore, Officer Williams provided the Corporate Profile Report for Oshawa Sand and Gravel Supply, illustrating an “Inactive – Expired” registration status, with Van Drunen and Sons Gravel Limited named as the registrant. April 20, 2020 is the “Expiry Date” and “Inactive Date”. In forwarding the Profile Report to Officer Williams, Joanne Barchard’s email, dated May 26, 2022, states “Looks like the company has a new owner. Van Drunen and Sons Gravel Limited (as of 2020).”. Defence counsel submits that an expired business name cannot be used to make a connection to the defendant. No investigation was undertaken to establish who had care and control of the bin other than researching the corporate profile documents. An expired business name registration cannot be used to establish evidence of a relationship between an existing corporation and an expired name.

[15] The prosecution submits that there is no evidence suggesting that the possession of the property passed to Birk’s Landscaping Inc. The only evidence before the court is that a large bin owned by “Oshawa Sand and Gravel” otherwise owned by “Van Drunen and Sons” was placed on the roadway.

[16] I find this argument of the defence to be most compelling.

[17] It escapes me as to why the Municipality made no efforts to determine who had care and control over the bin and who had instructed that it be placed on the roadway near 106 Auburn Lane. I cannot accept the prosecution’s argument that there is no evidence that possession of the bin passed to Birk’s Landscaping Inc. Clearly, Birk’s Landscaping Inc. had applied for the permit and clearly the Municipality of Clarington had granted the “Road Occupancy Permit” to Birk’s Landscaping Inc., not Oshawa Sand and Gravel Supply or Van Drunen and Sons Gravel Limited. In the photographs presented in evidence by Officer Williams, the words “Birk’s Landscaping” are clearly visible on the driver’s door of the truck to which the bin was coupled. Moreover, the vehicle permit is registered to “Birk’s Landscaping Inc.”. I heard no evidence from Officer Williams about any investigation into whether Birk’s Landscaping or Oshawa Sand and Gravel Supply/Van Drunen and Sons Gravel Limited was responsible for placing the bin on the roadway so as to allegedly ‘encumber’ the highway. Officer Williams relied solely on the name on the bin to testify regarding ownership and to identify and lay a charge against this defendant. Moreover, he testified that he did not know the relationship between Birk’s Landscaping Inc. and the defendant, Van Drunen and Sons Gravel Limited.

[18] Halsbury’s Laws of Canada define “bailment” as follows:

In bailment, the person with legal possession of the chattel transfers possession to another, the bailee, for a fixed time or for a period determinable at the will of the bailor. Possession is necessary to constitute legal bailment, however, the bailee does not become owner. Instead, the bailee obtains only a special property right in the goods that are the subject of the bailment. Nonetheless, a bailee is entitled to bring an action in trespass relating to the goods in their possession. It is no defence to such action that the plaintiff bailee is not the owner of the goods.

[19] As an analogy to the words “Oshawa Sand and Gravel Supply” being on the side of the bin, simply because a vehicle rental company, for example, “Enterprise” or “Hertz” or “Avis” or “U-Haul”, may have its name on a sticker on its vehicle, does not mean it should be held responsible for the illegal actions of anyone renting and using its vehicle who, for example, is involved in a collision as a result of having committed the offence of driving carelessly.

[20] Moreover, I do not agree with the prosecution’s submission that the only evidence before the court is that a large bin owned by “Oshawa Sand and Gravel Supply” otherwise owned by “Van Drunen and Sons Gravel Limited” was placed on the roadway and that there is no evidence suggesting that the possession of the property had passed to Birk’s Landscaping Inc. or the owner of the property. Instead, the Road Occupancy Permit provides evidence that Birk’s Landscaping Inc. had a part to play in the bin being placed on the side of the road. As well, the logo on the side of the truck to which the bin was attached was that of Birk’s Landscaping. As it stands, the identity of the defendant is unclear.

[21] Officer Williams’ investigation into which entity had care and control and possession of the bin was insufficient, such that it could not support a finding of guilt and further investigation into the identity of the defendant having care and control over the bin at the time of the alleged offence should have been conducted. As it stands, whether it was Birk’s Landscaping Inc. or Van Drunen and Sons Gravel Limited, convinces me that the defendant who allegedly committed the offence of encumbering the road has not been established to the extent that could support a conviction. Evidence going to the identity of the defendant is, at best, ambiguous.

3. The permit issued by the municipality specifically permits the activity and there is no evidence the bin is there in contravention of the permit.

[22] Defence submits that the Permit issued by the Municipality of Clarington specifically permits the activity that grounds this offence. The Road Occupancy Permit states, “No materials shall be stored on the road (asphalt) for any length of time” [Emphasis added]. Officer Williams attended the site but did not remain for a sufficient period of time to determine whether the materials on the road had been there “for any length of time”.

[23] The prosecution submits that the defence has misinterpreted this comment. “For any length of time” refers to one second, one minute, one hour, one day, etc. It does not mean that one is allowed to place material for a short period of time, but, in fact, means one cannot place any material for any length of time, albeit a second or a minute or an hour or a month.

[24] I do not accept either party’s arguments for many reasons. The Municipality’s wording on the Permit is vague, leading to uncertainty, and could also be interpreted to mean that materials may be stored on the road (asphalt), but not for a lengthy period of time. If no materials were allowed to be stored on the roadway, clear language perhaps should read “No materials shall be stored on the road (asphalt) at any time”.

[25] In the end, I cannot agree that the Road Occupancy Permit does not allow the placement of the bin on the roadway. The name of the permit itself, “Road Occupancy Permit”, implies that the Applicant intended to occupy a part of the road with its equipment. Also, there is a distinction between ‘equipment’ and ‘materials’. From the Municipality’s definition of “hard landscaping materials”, one can better understand what the Municipality considers ‘materials’. Subsection 13(1) of the Boulevard By-Law 2013-066 states:

In this section “hard landscaping material” means asphalt, concrete, interlocking brick or block, crushed or solid stone, gravel, slag, ground asphalt or wood.

[26] Clearly, the bin was placed on the road for landscaping purposes, as the “Activity description” on the Permit states “Landscaping front back and side of property.” Although referring to boulevards, not roadways, subs.13(1) of the By-Law lends insights and does not define a bin as ‘material’. It is not a part of the ‘materials’ going into the landscaping, but rather is a piece of ‘equipment’ that serves a purpose in undertaking the landscaping of the property. The Permit states that “Company vehicles and equipment will be occupying the road between the hours of 7:00 am and 6:00 pm.” [Emphasis added.] Therefore, whether materials are not allowed on the road at any time or for any length of time is irrelevant to these discussions. In the end, the bin, as a piece of equipment and not as ‘material’ was permitted to occupy the road between 7:00 am and 6:00 pm. Officer Williams visited the site in the afternoon of May 26, 2022 – well within the timeframe for equipment to be permitted on the roadway.

4. There is no evidence Van Drunen and Sons Gravel Limited committed an offence that is capable of acceptance by the court.

[27] The defence submits that there is no evidence that the defendant corporation committed an offence that is capable of acceptance by the Court.

[28] The prosecution submits that the evidence supports the inference that Van Drunen and Sons Gravel Limited owns Oshawa Sand and Gravel Supply, as provided in the Corporate Profile Report and it placed the bin near 106 Auburn Lane in Clarington. The status for Oshawa Sand and Gravel Supply is ‘inactive/expired’, meaning Van Drunen and Sons Gravel Limited failed to renew the registration of their company, Oshawa Sand and Gravel Supply.

[29] I find these arguments overlap those made above, for example, that an expired business name cannot be used to make a connection to the defendant and the identity of the defendant is ambiguous. As well, I have distinguished between ‘equipment’ and ‘materials’ and plainly on the face of the Road Occupancy Permit ‘equipment’ may occupy the road between the hours of 7 am and 6:00pm. Consequently, I fail to see how an offence was committed.

IV. CONCLUSION

[30] In determining whether I should grant the defence’s motion for a non-suit, I must be careful not to rely on weighing the evidence, making findings of credibility or assessing reliability and sufficiency. Rather, my task is to determine whether, if the prosecution’s evidence is believed, it would be reasonable to support a finding of guilt.

[31] As I have stated above, there is no clear evidence that could identify the defendant that had care and control over the bin that was placed on the roadway.

[32] Moreover, the Road Occupancy Permit allows equipment to occupy the road between the hours of 7:00 am and 6:00 pm. Clearly, the bin is a piece of equipment, not materials, and Officer Williams viewed it on the roadway during those hours. Consequently, I can find no evidence of the elements that constitute the actus reus of the offence being committed.

[33] The motion for a non-suit is granted and the charge against the defendant, Van Drunen and Sons Gravel Limited, of encumbering the highway under section 22.3 of the Corporation of the Municipality of Clarington By-law 2013-066, is dismissed.

Released: June 27, 2023 Signed: Justice of the Peace M. Coopersmith