Court File and Parties

COURT FILE NO.: 375/18 DATE: 2020/12/18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: David Syrowik, Ursula Syrowik Applicants -and- Stella Wheeler, Sheila Diaz Respondents

COUNSEL: Analee Baroudi, for the Applicants David Sanders, for the Respondents

HEARD: September 9, 2020

REASONS FOR DECISION

GEORGE J.

[1] The parties are neighbours who own adjacent properties in the Municipality of Lambton Shores. The Applicants are spouses. The Respondents are mother and daughter.

[2] This is a property dispute involving two fences. Issues surrounding the, what I will call “Wheeler fence”, have since been resolved. The Applicants had alleged that it encroached on their property, but that fence has since been removed. With respect to the “Diaz fence”, the Applicants seek an order compelling the Respondents to reduce its height in order to bring it into compliance with Lambton Shores By-law 80-2008.

[3] Before I address the issues that arise on the main application, I note that there are two outstanding motions, one brought by each party. The Applicants ask that I strike paras. 15 to 21 of Sheila Diaz’ affidavit, together with Exhibit “2A”; that I strike paras. 10 to 12, and para. 29 of Ms. Diaz’ supplementary affidavit; and that I strike the affidavit of Victor Diaz in its entirety. In the alternative, the Applicants ask that I give this evidence little to no weight.

[4] The Respondents ask that I strike the evidence of Harry Froussios, who has been tendered as an expert by the Applicants. In the alternative, they ask that I strike those portions of his affidavit that are opinion and leave only that which speaks to objective and confirmed facts. In the further alternative, they ask that I give his evidence little to no weight.

[5] On these motions, each party opposes the relief sought by the other. For reasons that will become apparent, I need not weigh in on and decide either as they are inconsequential to what I see as the overarching questions. Which are, first, do I have the authority to do as the Applicants ask? And second, even if I do, should I? Put simply, this assessment does not depend on expert evidence, or on what was deposed by Mr. and Mrs. Diaz in the paras. identified in their respective affidavits. In fact, many of the factual questions raised on this application - for which counsel spent a considerable amount of time on in argument – are irrelevant to the issues I must decide.

[6] I will restate the issues in a slightly different way. To start, can I intervene when a municipality, who passes a by-law, chooses not to enforce it? Next, even if I can, does it make sense to do so in the particular circumstances of this case?

[7] In my view, I need not answer what Applicant counsel framed as a fundamental question, which is, from where should the height of the fence be measured: from the original grade, or from the top of the two feet of sand that the Applicants say the Respondents placed underneath the fence after construction? In other words, I will, for now, accept that the Applicant’s position is correct and that it should be measured from the original grade, which means the fence is indeed higher than the by-law permits.

[8] Moreover, I am not going to attempt to interpret the by-law in question. Not only is that unnecessary, the Municipality is not a party and has not been given an opportunity to provide input. Meaning, no one should read what I am about to write as a binding interpretation, because it is no such thing. Nor should it be read as either a condonation or condemnation of the decisions made by Lambton Shores representatives. These reasons will focus only on my ability to interfere with the Municipality’s decision to not enforce this by-law violation.

[9] One last preliminary note. These parties have a litigious history which, while the details are not particularly interesting or all that important to me, does reveal a level of animosity that, at the very least, informs this case and explains in part how we got here. For their part, the Respondents argue that this history is important and relevant to the question of whether I should exercise my discretion and provide a remedy to the Applicants. I will return to this in just a moment.

[10] I want to, first, briefly recount the facts. The Applicants own Lot 2 on Registered Plan 34, which faces Lake Huron, where they reside on a seasonal basis. The Respondents are co-owners of the property that abuts the Applicants (Lot 1 on Registered Plan 34), which also faces Lake Huron. The Respondent, Sheila Diaz, and her husband Victor reside there on a seasonal basis. The Respondent, Stella Wheeler, owns property that abuts the Applicants to the south (Lot 39 on Registered Plan 34), which does not face the lake. She resides there on a seasonal basis.

[11] The fence in question runs parallel to the east property line dividing the Applicant’s land from the Respondents. Applicant counsel described it as running “parallel to the east wall of the main dwelling on the Diaz lands extending beyond the north wall of the main dwelling, towards Lake Huron”. It was constructed in 2017. The Applicants contend that the fence is too high and violates the Municipality’s fence by-law. They contend that the fence “obstructs their view of Lake Huron and blocks the sunset at several points during the year”. The Applicants frame this as a violation of both the provisions of the by-law and its underlying purpose which is to prevent excessively high fences (and poorly constructed ones) from negatively impacting a neighbours use and enjoyment of their property.

[12] The Respondents accept for the purposes of this application, as do I, that the fence is probably higher than the Municipality permits. That notwithstanding, they submit that I should not interfere with the Municipality’s decision to decline enforcement, which should remain undisturbed. Their position is that, in circumstances like these, it makes no sense for a court to step in and effectively enforce a by-law when a municipality – which is fully informed and completely apprised of the situation – chooses not to.

[13] Returning to a point made earlier, Respondent counsel argues that the litigious history of these parties is relevant to the question of whether I should exercise my discretion to step in and grant relief. He claims that the Applicants are engaging in what he calls “lawfare” designed specifically to wear out the Respondents and “incentivize” them to sell their property to them, an issue that has arisen in the past. As I said, while perhaps important context, this is not that significant and at the end of the day – for reasons that will become evident – has no bearing on the outcome.

[14] Let me just step back and set out the provisions in question. First, here are the relevant passages from Lambton Shores By-Law 80-2008:

Preamble

… WHEREAS it is deemed expedient and desirable to pass a by-law to regulate the erection and maintenance of fences;

NOW THEREFORE the Municipal Council of the Corporation of the Municipality of Lambton Shores enacts as follows:

Definitions

“FENCE” includes a railing, wall, line of posts, wire, masonry, gate, boards or pickets or other similar substances, used to enclose or divide in whole or in part a yard or other land, or to establish a property boundary, and includes a continual hedge, but does not include a retaining wall.

“FENCE – SOLID TYPE CONSTRUCTION” means a fence constructed so that its vertical surface is obstructed, preventing motorists and pedestrians from having a clear view through such fence.

“HEIGHT” is measured from the ground where the fence posts are embedded to the top of the fence.

General Provisions

2. The requirements of this by-law apply to all properties within the geographic limits of the Municipality of Lambton Shores, except where specified otherwise. No permit is required for a fence that complies with the requirements of this by-law.

(b) Erection – Fence – Non-compliance – Prohibited – No person shall construct, erect or permit to be erected or constructed any fence within the Municipality of Lambton Shores that does not comply with the provisions of this by-law. A fence that was erected prior to the passing of this by-law and was erected in compliance with the predecessor of this by-law and is not moved, replaced, altered or enlarged in any way shall be considered a “legal fence”.

(c) Maximum Height – Front Yards and Exterior yards – No person shall erect, construct or permit to be erected or constructed, a fence in a front yard or an exterior side yard unless such fence: does not exceed a maximum height of 0.91 meters (3 feet) measured from the ground level if a solid type construction or a maximum height of 2 meters (6.5 feet) measured from the ground level if of open type construction.

(d) Maximum Height – All Other Yards – No person shall erect, construct, or permit to be erected or constructed a fence in an interior side yard or rear yard unless such fence: does not exceed a height of 2 meters (6.5 feet) measured from the ground level.

Administration and Enforcement

9(a) In the event that the Municipality receives complaints regarding a fence, the by-law enforcement officer shall inspect such fence. If, in the opinion of the by-law enforcement officer, the fence does not meet provisions of the by-law, the bylaw enforcement officer shall require, in writing, the owner, agent or person responsible for the fence to comply with the provisions of this by-law. Failure to comply shall be considered a contravention of the by-law which is subject to the penalty set out in s. 10 of this by-law …

10. Penalty – Every person who contravenes any provision of this by-law is guilty of an offence and subject to the provisions of the Provincial Offences Act.

[15] Next, s. 440 of the Municipal Act (Ontario):

440. General Enforcement Powers – Power to Restrain – If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by the application at the instance of a taxpayer or the municipality or local board.

[16] Pursuant to s. 9(a) of the by-law, the Municipality did receive a complaint about the fence. What followed was a series of communications that, in part, revolved around whether the property line in question is a rear lot-line or front lot-line (which - given the language used in the by-law and its importance to the Applicant’s position - was discussed at length at this hearing). At the end of the day, after conducting its inquiry, the Municipality declined to intervene. I reproduce below an email from Municipality Clerk Stephanie Troyer-Boyd, dated May 25, 2018, which explains why that decision was made:

Dear Mr. Syrowik:

We have received your email correspondence dated April 24, 2018 in relation to a complaint regarding contraventions of our fence and site alteration by-laws at the property situated on 7284 Leighton Drive.

The Municipality has considered your complaint and have not found there to be a violation of the site alteration by-law.

Staff have reached out to the owners of the property at 7284 Leighton Drive and informed them that we believe the fence exceeds the 6.5 feet height restriction from ground level at the northwest and closest to the lake. In any situation involving an allegation of a By-law offence or violation the nature and context of the complaint, background information and spirit of the By-law become relevant. Giving consideration to all circumstances, past and present, our Municipality will not be conducting any further investigating with respect to the alleged fence violation. I have attached a copy of the fence by-law to this email. The municipality does not have set fine approval for violations of the fence by-law.

Resolution directly or indirectly with your neighbour remains an option that is always encouraged.

If you have any further questions, please feel free to reach out to Chris Martin or myself. Have a nice weekend.

Stephanie Troyer-Boyd Clerk

[17] Restating the issue once again, should I, relying upon s. 440, make an order compelling the Respondents to either shorten or remove the fence?

[18] This is a permissive section. The court “may”, in its discretion, “restrain” they who are in violation of a municipal by-law. As is always is the case when a court is called upon to exercise discretionary authority, there are limitations. In that respect, consider the Court of Appeal’s comments in Donnell v. Joseph, 2012 ONCA 240, in particular at paras. 28 and 29:

28. …Ms. Donnell’s abandonment of her claim that the County acted improperly in its by-law enforcement decisions regarding the Josephs, both here and in the court below, is tantamount to an implicit acknowledgement that a municipality has considerable discretion in determining by-law enforcement matters. This principle is well established. While a municipality’s interpretation of the legal meaning of a municipal by-law attracts no deference from a reviewing court, its by-law enforcement decisions stand on a different footing. Justice Laskin of this court put it this way in Foley v. Shamess, 2008 ONCA 588, at para. 29:

For it is one thing to say a municipality has a duty to enforce its by-laws. The way it enforces them is quite another thing. As I read the case law, a municipality has a broad discretion in determining how it will enforce its by-laws, as long as it acts reasonably and in good faith. That makes common sense. The manner of enforcement ought not to be left to the whims or dictates of property owners.

See also Runnymede Development Corp. v. 1201262 Ontario Inc. (2000), 47 O.R. (3d) 374 (Ont. S.C.J.); Suprun v. Bryla (2007), 41 M.P.L.R. (4th) 174 (Ont. S.C.J.), aff’d 2008 ONCA 94 (Ont. C.A.).

29. Here, the application judge made no finding that the County acted in bad faith in its investigation of Ms. Donnell’s zoning-related complaints or in the process it followed to eventually decide, through its responsible building officials, that the Josephs’ impugned activities did not contravene the zoning by-law. Nor did he make any findings that the County’s conduct in this regard was in any way unreasonable. Absent findings of bad faith or unreasonable conduct by the County, it cannot be said that the County’s discretionary decision regarding the enforcement of the zoning by-law against the Josephs is vulnerable to reversal by a reviewing court.

[Emphasis mine.]

[19] That raises this question: Is there any basis upon which to find Lambton Shores acted unreasonably or in bad faith by declining to take enforcement steps? Only if I so find can I even consider intervening. Otherwise, I should defer to the Municipality’s decision and do nothing.

[20] Consider also the Divisional Court’s reasoning in Freitag v. Penetanguishene (Town), (2005), 30 M.P.L.R. (4th) 38 (Ont. S.C.) where, at paras. 8 to 11 and 13 to 14, the panel writes:

8. [As] a preliminary matter, the question is whether a ratepayer can compel a municipality to restrain a breach of its By-law or compel it to enforce compliance with its By-laws.

9. The Law of Canadian Municipal Corporations 2d ed. Toronto: Carswell, at p. 1361, Para. 246.6, indicates:

A municipal by-law passed in the public interest confers no right upon a property owner or ratepayer to have a breach or intended breach of its provisions restrained by the court.

10. See also p. 1362:

Where a ratepayer has a statutory right of this nature, the municipality cannot be compelled by mandamus to take proceedings necessary for preventing its violation.

11. At p. 1371:

The remedy will not be granted where the statutory power conferred is a discretionary one which the council may or may not exercise, unless the council has exercised it by enacting a by-law imposing a duty on its officers and servants.

13. There appears to be no specific duty upon a Municipality to enforce a By-law which it has enacted in the exercise of a discretionary power. Brown v. Hamilton (1902), 4 O.L.R. 249; Montreal v. Mulcair, (1898), 28 S.C.R. 458.

14. There are valid policy reasons for the courts not interfering with the exercise of municipal discretion.

[21] I agree that a distinction can be drawn between by-laws of general application (made solely in the public interest and only minimally, if at all, impacting private property rights), and those that directly and primarily impact personal or property interests (which a fence by-law arguably is), and that a court should perhaps be more inclined to intervene when addressing the latter. That said, I find the above passages instructive, consistent with the permissive nature of s. 440, and applicable to the situation at hand. Which brings me back to the question I pose earlier; did Lambton Shores act unreasonably or in bad faith by refusing to pursue enforcement?

[22] I want to pause here and note that the Applicants focussed their argument almost entirely on what, in their view, s. 440 entitles them to. At para. 48 of their Factum, they put it this way:

48. A ratepayer has an independent right to restrain the ongoing contravention of a bylaw under section 440, regardless of whether the Municipality has exercised its discretion to enforce the bylaw. Municipalities have finite resources, and they must make strategic decisions about when to enforce municipal bylaws. However, a ratepayer who wishes to use their own resources to restrain the contravention of a bylaw is entitled to do sunder s. 440. That conclusion is supported by the express language of s. 440, which provides that a “ratepayer” may apply to restrain the contravention of a bylaw.

[23] It is true that municipalities are strapped and have to make hard decisions based on available resources, but this does not accurately capture the required approach to questions like these. That is to say, a ratepayer does not have an independent right to restrain the contravention of a by-law. I am not attempting to play a semantical game here, but there is a significant difference between, on the one hand, possessing a right to apply for relief, and on the other having an independent right to restrain (which, in my view, would be akin to the Municipality’s right to enforce its by-laws). These are not the same and the Applicants do not have an independent right to restrain. As the Respondents argue, to so conclude would create an absurdity and run contrary to established jurisprudence that, while municipalities have a discretion to enforce or not enforce its by-law, courts with supervisory authority do not.

[24] I raise this because the Applicants seem to be arguing that, what they describe as a ‘right to restrain’, allows them as a ratepayer to step in and effectively do what the Municipality has chosen not to. This is not a proper reading of s. 440. At the risk of repeating myself, s. 440 allows a ratepayer to apply for what is, in effect, injunctive relief, which is an equitable remedy. It is not identical to the Municipality’s right to enforce its by-law.

[25] I highlight this by referencing the two cases relied upon by the Applicants, namely Suprun v. Bryla (2007), 41 M.P.L.R. (4th) 174 (Ont. S.C.) and Neighbourhoods of Windfields Limited Partnership v. Death. Citing these, Applicant counsel argued that “[g]enerally, the Applicant only needs to establish the contravention of the bylaw for an injunction to issue” and that “a permanent injunction should issue under s. 440 once the applicant establishes a contravention of a bylaw, unless there are exceptional circumstances”. On my reading, neither of these cases stand for that proposition. However, even if I am wrong and they do, both predate Donnell which is clear in that this is not the test for court intervention.

[26] In the result, and after a careful review of the evidence, I find that Lambton Shores did not act unreasonably or in bad faith. I arrive at this conclusion for two reasons. First, the Applicants have adduced no evidence that it did. And second, to the extent anything in the record sheds light on this, I need only look to the May 25, 2018 email, where the author confirms receipt of the Applicants complaint, confirms that it has been looked into, and which sets out articulable reasons for its declination (i.e. context of complaint, background information, and spirit of the by-law).

[27] This being the only evidence on what is the critical element of my assessment, I have little choice but to conclude that court intervention is unwarranted.

[28] For these reasons the Application is dismissed. This renders the cross-motions before me moot.

[29] If the Respondents seek their costs, and should the parties fail to agree on quantum, I invite brief written argument not to exceed three pages in length (excluding a costs outline). The Respondents have 30 days to serve and file their submissions; the Applicants 10 days after receipt of those. There is no right of reply.

Justice Jonathon C. George Released: December 18, 2020

COURT FILE NO.: 375/18 DATE: 2020/12/18 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: David Syrowik, Ursula Syrowik Applicants -and- Stella Wheeler, Sheila Diaz Respondents REASONS FOR DECISION

Released: December 18, 2020