ONTARIO COURT OF JUSTICE
BETWEEN:
City of Kawartha Lakes
— AND —
Daniel OSCHEFSKI
Before Justice of the Peace Joel Kulmatycki
Heard on December 2, 2024
Reasons for Judgment released on January 13, 2025
Reasons on Sentence released January 13, 2025
Krystin Fitzgerald..................................................................... counsel for the prosecution
The defendant Mr. D. Oschefski............................................................ on his own behalf
J. KULMATYCKI, J.P.:
1On January 13, 2025, I found that Mr. Daniel Mark Oschefski was guilty of three charges relating to the City of Kawartha Lakes Township of Emily Comprehensive Zoning By-Law 1996-30. This was after a one-day trial heard before me on December 2, 2024.
Counts 1 and 2
2While being the owner of the property, namely Carlton Crescent Omemee, Ontario, K0L 2W0, Roll Number 165100100802300, Legal description Concession 3, Lot 7, Plan 365, Lot 34 (the Property), allow a non permitted accessory use, mainly that of the storage and use of a trailer on a vacant property prior to establishing a permitted primary use. This is in respect to a trailer and cabin that was found to be on the property.
(a) No person shall hereafter change the use of any building, structure or land or erect or use any building or structure, in a Rural Residential Type Three Zone except for the following uses:
(i) Bed and Breakfast
(ii) Home Occupation
(iii) Single Detached Dwelling
(iv) Private Cabin
(v) Vacation Dwelling
Count 3
3While being the owner of the property did permit or allow a non-permitted use pursuant to section 67 of the planning act, to wit, establishing an accessory structure within the required minimum water setback of 30 meters. This again is in relation to a cabin that was built on the property.
(a) No person shall hereafter change the use of any building, structure or land or erect or use any building or structure, in a Rural Residential Type Three Zone except for the following uses:
- Yard Requirements
(i) Front – 7.5 m
(ii) Interior Side (one and one half storey building – 3 m
(iii) Interior Side (two storeys or greater building – 5.5 m)
(iv) Exterior Side – 7.5 m
(v) Rear – 7.5 m
(vi) Water setback – 30 m
Goals of Sentencing
4On the trial date, I asked the parties to be prepared to provide submissions with respect to penalty in the event that there was a finding of guilt on any of the counts.
5Section 57(1) and (3) of the Provincial Offences Act reads as follows:
(a) Where the defendant who appears is convicted of an offence, the court shall give the prosecutor and the defendant’s representative an opportunity to make submissions as to sentence and, where the defendant has no representative, the court shall ask the defendant if he or she has anything to say before sentence is passed. (1)
(b) Inquiries by the court where defendant is convicted of an offence, the court may make such inquiries, or otherwise, of and concerning the defendant as it considers desirable, including the defendant's economic circumstances, but the defendant shall not be compelled to answer. (3)
6General deterrence is a paramount factor and will be the most important goal for most Regulatory offences. The penalty must reflect the gravity of the offence and fines should not be so low as to be tantamount to a license to commit illegal activity.
7I must also address specific deterrence in ensuring that the defendant does not commit these offences again. It must be illustrated that the Court has teeth in imposing fines that address the behaviour of the defendant and any other person involved in the same activity.
8Finally, a part of my goal on sentencing must be the protection of the public where in this case it has been established through the evidence of By-Law Enforcement Officer Allard that debris consisting of tires and other items were located on the property. There must be some inference drawn that this is an environmental issue along with the fact that the cabin in question was situated well within the prohibited distance from the water’s edge. The public should also know that the laws apply to everyone and should be followed.
Submissions – Prosecutor
9Ms. Fitzgerald provided the Court with cases to consider.
(a) Ontario (Ministry of Labour) v Flex-N-Gate. The prosecutor relies on paragraph 22.
(b) R. v. 1353837 Ontario Inc. 2007 O.J. No. 433.
(c) R. v. Chan 2012 272 – Sentencing Objectives, Regulatory Offences. She relies on paragraphs 32 and 33, specific to the notion that there should a shift of emphasis to the protection of societal interests.
(d) R. v. Cotton Felts, 1982 3695. The prosecutor relies on both the OCJ and OCA decisions that relate to deterring further offences from being committed.
(e) R. v. Ipeelee 2012 SCC 13 – Proportionality.
(f) R. v. Kirk, 2005, OCJ, 352 – Sentencing Principles in the Provincial Offences Act. She relies on paragraph 16 and that the principles found in section 718 of the Criminal Code may apply in certain situations.
(g) R. v. Ministry of Labour v. New Mex Canada Inc. et al – Sentencing principles. She relies on paragraphs 62 to 73. “Deterrence by threat of punishment.”
(h) R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299.
10Ms. Fitzgerald states that in addition to the principles found in her case book, the public needs to know that laws must be followed otherwise there is a trickledown effect where it could be found that, “If he can get away with it, why can’t I” type of attitude in the community.
11She also asks that I make an Order pursuant to Section 67(3) of the Planning Act, R.S.O. 1990, c. P. 13 prohibiting the defendant from storing or using a trailer, allowing a non-permitted accessory structure prior to establishing a primary [dwelling] and having an accessory structure within the required minimum water setback of 30 m.
12Ms. Fitzgerald asks that I impose fines as follows:
(a) A fine of $10,000 collectively for counts 2 and 3.
(b) A fine of $5000 for count 1.
13She reminds me that a fine of not more than $20,000 can be imposed for a first offence. She is not alleging a record.
Submissions – the Defendant
14Mr. Oschefski provides the Court with information concerning his economic situation. He describes that it is grave and that he only has $300 in savings with a car payment due shortly. He provides additional information as follows:
(a) He has a one-year-old son who he has not met as a result, as he describes, a slow Court process.
(b) There is no work in Ontario building homes, which is his livelihood, and he will likely move to Alberta for work.
15He proposes that a fine of $1200 is appropriate in the circumstances which is what the Development fee was in 2020. He describes that the same fee has now risen to $12,000.
16He did not provide any details that address denunciation, nor did he show any remorse for his actions during the course of the trial and sentencing hearing.
17As Justice Dnieper stated in R. v.. Cotton Felts Ltd, 1982 CanLII 3695 (ON CA), [1982] O.J. No. 178:
(a) In my view only fines that hurt would have any effect whatsoever.
18Citing the same case at the Ontario Court of Appeal, where Martin, J.A. stated the following:
(a) A careful examination of those reasons satisfies me that he considered that general deterrence was the paramount factor to be considered in arriving at an appropriate sentence.
19In terms of the ability to pay or the consequences of a fine that will bankrupt the defendants, I am to consider R v. Metron Construction Corp., 2013 ONCA 541, [2013] O.J. No 3909, paragraph 108 to 110,
(a) It is apparent from this passage that the sentencing judge considered himself precluded from imposing a fine that might result in the bankruptcy of the corporation. In my view this was an error. The economic viability of a corporation is properly a factor to be considered but is not determinative. Certainty it is not a condition precedent to the imposition of a fine nor does it necessarily dictate the quantum of the fine. Para 108
(b) The sentencing judge erred in concluding that imposition of a penalty that would likely result in bankruptcy would be in violation of the statutory requirements. While bankruptcy may be considered it is not necessarily preclusive. Para 109
(c) The sentencing judge was correct in observing that the financial future of the respondent was impossible to predict with any degree of certainty given the outstanding litigation both by and against the respondent. To this, I would add that the heavily qualified and incomplete financial statements filed at the sentencing hearing constituted unreliable indicators of the respondent’s financial prognosis. In this case the respondent had only two permanent employees. The minimal financial information that was produced showed no ongoing payment of any compensation to employees. Corporate construction activity was evident in FormStructures, not in the respondent. Any public interest in the continued viability of the respondent was not manifest. The sentencing judge placed undue weight on the respondent’s ability to pay. Para 110
20Proportionality – The sentence must be proportional to the gravity of the offence and the moral blameworthiness of the offender. R v. L.M., 2008 SCC 31 at para. 22
21Aggravating Factors – the evidence before this court, is that the defendant chose not to operate in compliance with the Act which was a corner cutting mechanism meant to avoid constructing a building or otherwise with the proper permits. Even after an Order was made for him to come into compliance, he decided against it. R v. Gulf Canada Corporation, 1987 CanLII 8605 (NWT TC), [1987] NWTJ No. 143 page 267
22Mitigating factors – The defendant does not have a prior record of offences.
Sentence
23Count 1 – a sentence of $5000.
24Count 2 – a sentence of $5000.
25Count 3 – a sentence of $5000.
(a) The defendant will have 12 months from today to fulfill the sentence payment along with any administrative fees associated with the fines.
26I will make the Order pursuant to Section 67(3) of the Planning Act that will take effect on June 30, 2025.
(a) Where a conviction is entered under subsection (1), in addition to any other remedy or any penalty provided by law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted. R.S.O. 1990, c. P.13, s. 67 (2, 3).
Released: January 13, 2025
Signed: Justice of the Peace Joel Kulmatycki