DATE: 20030207

DOCKET: C38511

COURT OF APPEAL FOR ONTARIO

RE: THE CORPORATION OF THE TOWN OF FORT ERIE (Appellant) - and - WILLIAM YAKE AND TRACY YAKE (Respondents)

BEFORE: ROSENBERG, MOLDAVER and SIMMONS JJ.A.

COUNSEL: Thomas Richardson and Sara Premi

For the appellant

Simon Valleau

For the respondent

HEARD: JANUARY 29, 2003

On appeal from the judgment of Justice A.T. Lacavera dated May 16, 2002 upholding the judgment of Justice of the Peace G. Radojcic dated October 22, 2001, acquitting the respondents on a charge of breaching the Town of Fort Erie By-law 129-90, s. 7.1, as amended.

E N D O R S E M E N T

[1] The Corporation of the Town of Fort Erie appeals, with leave of this court, from the decision of the Honourable Mr. Justice A.T. Lacavera, upholding the decision of His Worship Justice of the Peace G. Radojcic acquitting the respondents on a charge that they:

… between the 5th of December 2000 and the 14th of February 2001 at 2268 Burger Road in the Town of Fort Erie, using land in an agricultural A-Zone for use other than a permitted use, to wit, for storage of tires, being a use not permitted by the Town of Fort Erie By-law 129-90.

[2] The uncontradicted evidence establishes that over a period of at least three months (including most of December 2000 and January 2001), the respondents accumulated thousands of used tires on their farm property with a view to eventually using the tires, in unaltered form, as building material to construct fences on their farm. It is common ground that the by-law in question forbids the storage of used tires.

[3] The Justice of the Peace acquitted the respondents because in his view:

… while these tires would be nominally in violation or the usage of these tires would be nominally in violation during the period of time that they were not in the fencing or corral structure, the clear intent from the testimony of both Mr. Steffanson and the evidence before the Court is that at all times these tires were there for the purpose of constructing this relatively novel and perhaps unique and without commenting on the aesthetics of this technique or technology use or fences and by having them there for that purpose, I find that I have a doubt that there was the commission of the offence with respect to s. 6.22 which has the prohibitive use definition as alluded and described earlier in these reasons.

As indicated, the decision of the Justice of the Peace was upheld on appeal.

[4] In arriving at our conclusion that the acquittals cannot stand, we acknowledge the evidence that some of the tires were being used as fencing during the timeframe of the information. That said, we are respectfully of the view that the Justice of the Peace and the Provincial Court Judge erred in focusing on the eventual use to be made of the remaining tires, and failed to consider the situation as it existed during the three months when they were being accumulated and piled in a helter-skelter fashion on the respondents’ property.

[5] Without attempting a precise definition of the word “store”, on any definition of that word, we are satisfied that during the three-month period in question, the respondents were storing tires on their property in contravention of the relevant by-law and they should have been found guilty. This is so regardless of the eventual use that was to be made of the tires and whether that use was or was not lawful.

[6] In view of this conclusion, although we are inclined to the view that the tires were no longer being “stored” within the meaning of the by-law once they were in place and actually being used as fencing on the respondent’s farmland, we need not finally decide that issue.

[7] Accordingly, we would allow the appeal, set aside the verdicts of acquittal and in their place enter convictions against both respondents.

[8] In oral argument, the parties agreed that in the event we were to set aside the acquittals and substitute convictions, we should deal with the issue of sentence. It was jointly submitted that the respondents should receive a nominal fine in the amount of $100. We think that is an appropriate disposition and accordingly the respondents will each be fined $50.

“M. Rosenberg J.A.”

“M. J. Moldaver J.A.”

_ “J. Simmons J.A.”