CITATION: The Corp. of the Municipality of Port Hope v. Arthur Elgasuani, 2016 ONSC 2282
DIVISIONAL COURT FILE NO.: DC-14-000466-00
DATE: 20160408
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Morawetz R.S.J., Sachs and Stewart JJ.
BETWEEN:
The Corporation of the Municipality of Port Hope
Respondent
– and –
Arthur Elgasuani
Appellant
Jennifer Savini, for the Respondent
Arthur Elgasuani on his own behalf
HEARD at Toronto: March 24, 2016
SAchs J.
Nature of the Proceeding
[1] The Appellant appeals the order of Belobaba J. dated September 25, 2014 dismissing his appeal of two orders issued by the Respondent Municipality requiring the Appellant to clear structures and debris from his property.
The Property
[2] The Appellant owns a property in the Municipality of Port Hope. He purchased this property in March of 2013 for $7500.00. The property is a rural unserviced lot accessed by an unmaintained municipal road allowance.
[3] Because of the property’s size and frontage the applicable zoning by-laws do not allow the Appellant to use the property for anything other than recreational purposes. No buildings or structures, including tents or trailers, are permitted.
[4] Documents concerning this development restriction were registered on the title to the property prior to the Appellant’s purchase of the property.
The Orders Under Appeal
[5] On November 8, 2013 the Appellant was served with two orders:
(a) A Property Standards Order issued under the applicable Property Standards By-law requiring him to remove all rubbish, garbage and waste from the site, to remove the tent trailer and to demolish and remove all structures; and
(b) An Order to Comply under the Planning Act that also required the Appellant to remove all buildings and remove all debris from his property.
[6] There is a distinction between the two orders. The Order to Comply only requires the removal of buildings over a certain size, while the Property Standards Order is much broader – it applies to all buildings and structures, regardless of size.
[7] As provided by the Building Code Act, 1992, S.O. 1992, c. 23 ( the “Act”) the Appellant first appealed the Property Standards Order to the Property Standards Committee. His appeal was dismissed and the Order was confirmed.
[8] The Appellant then appealed both the Property Standards Order and the Order to Comply to the Superior Court where, as detailed above, his appeal was dismissed and the orders were confirmed.
This Court’s Jurisdiction to Hear the Appeal of the Property Standards Order
[9] Section 15.3(7) of the Act provides that “[a]n order that is …confirmed…by…a judge…shall be final and binding upon the owner…” The Ontario Court of Appeal in Yorkville North Development Ltd. v. North York(City),(1988), 1988 4701 (ON CA), 64 O.R. (2d) 225, held that this provides an exception to the rights of appeal under the Courts of Justice Act, such that no further appeal from the decision of the judge is available. The Divisional Court followed Yorkville in Gollan v. Kinloss(Township), 2001 CarswellOnt. 2348, and dismissed an appeal of a judge’s order made on appeal from a Property Standards Committee decision.
[10] Thus, the Divisional Court has no jurisdiction to hear the Appellant’s appeal of the Property Standards Order. Since, as indicated, the Property Standards Order is broader than and encompasses the matters set out in the Order to Comply, there is a real question as to whether there is any need to deal with the appeal of the Order to Comply. However, out of an abundance of caution, I will go on to deal with that appeal.
[11] Before doing so I wish to note that in his oral submissions the Appellant made allegations of actual bias against the Superior Court judge who heard his appeal, which could (if meritorious) form the basis for judicially reviewing that judge’s decision. The allegations were not made in the written material and were, in the view of this court, completely without foundation.
The Appeal of the Order to Comply
[12] Pursuant to s. 26(3) of the Act, the Appellant does have a right to appeal to the Divisional Court from the Superior Court judge’s decision, but only “on any question that is not a question of fact alone.”
[13] The Appellant made a number of submissions that could only be categorized as questions of fact alone, including his submission that the structures on his property were not of the size that could be the subject of an Order to Comply and his submissions that the judge below relied on photographs that no longer represented the state of the property.
[14] The Appellant’s central legal submission before us was that Federal law superceded Municipal and Provincial laws. Since the original grant of the land was from the Crown and the municipality never owned the land, the municipality had no right to control what he did with the property. We reject this submission. A Crown Patent does not limit or reduce the Provincial government’s powers to regulate land use. Under the British North America Act,1867 and all subsequent amendments thereto, the provinces have exclusive jurisdiction to legislate in relation to property and civil rights. Municipalities have been delegated authority by the Province of Ontario to limit property rights through the Act and the Planning Act.
[15] The Appellant also argued that he has been the victim of a conspiracy among the municipality, the police and some of his neighbours who are growing marijuana on their land and would prefer that he was not there. He also submitted that he had been discriminated against and the victim of corruption. This was exemplified by the fact that his neighbours were allowed to build structures on their lands, while he was not. The record reveals no credible evidence to support this submission, which is a submission involving questions of fact alone.
[16] For these reasons we find that there is no merit to any of the Appellant’s submissions in relation to the Order to Comply.
Costs Appeal
[17] We see no reason to interfere with the discretionary costs order of the judge below. He made no error in principle nor was his award plainly wrong.
Conclusion
[18] For these reasons the appeal is dismissed and the Order to Comply is confirmed. The Respondent is entitled to its costs of this appeal, which, given all the circumstances, we fix in the amount of $2500.00, all inclusive.
Morawetz R.S.J.
Sachs J.
Stewart JJ.
Released:
CITATION: The Corp. of the Municipality of Port Hope v. Arthur Elgasuani, 2016 ONSC 2282
DIVISIONAL COURT FILE NO.: DC-14-000466-00
DATE: 20160408
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Morawetz R.S.J., Sachs and Stewart JJ.
BETWEEN:
The Corporation of the Municipality of Port Hope
Respondent
– and –
Arthur Elgasuani
Appellant
REASONS FOR JUDGMENT
Released: April 8, 2016