Lakehead Region Conservation Authority v. Demichele, 2010 ONCA 480

CITATION: Lakehead Region Conservation Authority v. Demichele, 2010 ONCA 480

DATE: 20100706

DOCKET: C51551

COURT OF APPEAL FOR ONTARIO

Rosenberg, Goudge and Rouleau JJ.A.

BETWEEN:

Lakehead Region Conservation Authority

Applicant (Respondent in Appeal)

and

Frank Demichele

Respondent (Appellant)

Michael Harris, for the appellant

Allan McKitricks, for the respondent

Heard and released orally: June 18, 2010

On appeal from the judgment of Justice Bonnie R. Warkentin of the Superior Court of Justice dated December 16, 2009.

ENDORSEMENT

[1] In the ordinary course it would be appropriate for the Conservation Authority to rely on the penal provisions of the Conservation Authorities Act, R.S.O. 1990, c. C.27, to ensure compliance. However, this is not an ordinary situation. The appellant has a history of developing land without a permit. To some extent the application judge found this conduct was condoned by the Authority and that they were aware of at least some of the appellant’s conduct.

[2] However, the appellant’s clearly stated intention to continue with this activity after being asked to stop by the Authority and his statement that he had no intention of seeking a permit from the Authority, justified the granting of the injunction.

[3] While the Authority regulates the use of private property, it does so for a public purpose, protection of wetland environment. In this case there is a public interest in ensuring compliance with the Act. The application judge fully considered all the applicable principles set out in Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513. We agree with her decision

[4] Accordingly, the appeal is dismissed with costs in the amount of $10,000 inclusive of G.S.T. and disbursements.

Signed: “M. Rosenberg J.A.”

“S. T. Goudge J.A.”

“Paul Rouleau J.A.”