Court File and Parties

CITATION: North Bay (City) v. Seguin, 2011 ONCA 767

DATE: 20111208

DOCKET: C53686

COURT OF APPEAL FOR ONTARIO

Doherty and Armstrong JJ.A. and Hoy J. (Ad Hoc)

BETWEEN

The Corporation of the City of North Bay

Applicant (Respondent)

and

Daniel Seguin

Respondent (Appellant)

William A. Sangster, for the appellant

Alan L. Rachlin, for the respondent

Heard and released orally: November 30, 2011

On appeal from the order of Justice J. Wilcox of the Superior Court of Justice, dated April 8, 2011.

ENDORSEMENT

[1] The appellant Daniel Seguin argues that the motions judge erred in his interpretation of the July 13, 2006 consent order of Justice Poupore prohibiting the appellant from maintaining any outside storage in the rear yard at 1135 Cassells Street, North Bay, which would exceed 75% lot coverage and as a result erred in finding the appellant breached that order.

[2] The motions judge dismissed the appellant’s argument that “lot coverage” means the total area of the portion of the lot between the back of the house and the rear lot line, including the 36% of such area covered by a garage and four sheds and therefore not available for outside storage. The appellant submitted that only 64% of the total rear lot was available for outside storage and he could maintain outside storage on 100% of that 64% without breaching the 75% restriction.

[3] The motions judge concluded that the appellant’s interpretation would make a mockery of Poupore J.’s order and render it ineffective to deal with the problems it intended to correct. It is clear from the record as a whole that the motions judge interpreted the order as restricting the appellant to using 75% of the open areas of the lot as a whole for outside storage. He noted the evidence that 100% of the open areas were used for outside storage and granted the requested declaration that the appellant was in breach of the order of Poupore J.

[4] The order arose out of a violation of a zoning by-law prohibiting outside storage in a yard adjacent to a residential area. The motions judge properly considered the context within which the order was issued. In our view, he was correct in interpreting Poupore J.’s order in the manner he did.

[5] In the result, the appeal is dismissed.

[6] Costs are awarded to the respondent in the amount of $2,000, inclusive of disbursements and taxes.

“Doherty J.A.”

“Armstrong J.A.”

“Alexandra Hoy J. ad hoc”