Court of Appeal for Ontario

Citation: Corbar Holdings Inc. v. Uxbridge (Township), 2013 ONCA 561 Date: 2013-09-13 Docket: C56493

Before: Weiler, Rouleau and Pepall JJ.A.

Between: Corbar Holdings Inc., Corrado Bartolo and Concetta Bartolo Appellants

and

The Corporation of the Township of Uxbridge Respondent

Counsel: Terrance Green, for the appellants Charles M. Loopstra, Q.C., for the respondent

Heard and released orally: September 9, 2013

On appeal from the endorsement of Justice M. Edwards of the Superior Court of Justice, dated June 14, 2012.

Endorsement

[1] The appellants appeal the June 2012 order of Edwards J. in which he granted a permanent injunction restraining the appellants from placing or dumping fill, removing topsoil or otherwise altering the grade of the subject property and causing, permitting or performing any other form of site alteration on the property.

[2] The appellants advance the following grounds of appeal. Firstly, they submit that the application judge erred in concluding that the appellants’ activity of importing fill to level farmland for farming did not constitute a “normal farm practice”. Secondly, he erred in his approach to the role of the Normal Farm Practices Protection Board and his interpretation of “normal farm practice”. Thirdly, he erred in taking jurisdiction in circumstances where the respondent should have first applied to the Board. Lastly, the appellants submit that the application judge’s reasons were incomplete and he failed to consider all of the evidence.

[3] We reject the appellants’ submissions. The application judge had ample evidence before him to conclude that the appellants’ fill activity did not constitute a “normal farm practice”. This included Concetta Bartolo’s sworn February 2008 statement of the appellants’ intended use for the property and that of the appellants’ real estate agent dated January 16, 2009. The application judge’s findings of fact are entitled to deference.

[4] Furthermore, while the appellants and the respondent were at liberty to apply to the Board pursuant to s. 6(2) of the Farming and Food Production Protection Act for a determination as to whether a practice was a “normal farm practice” for purposes of the non-application of a municipal by-law, neither of the parties to this appeal did so. In those circumstances, it was open to the application judge to grant the injunctive relief he did.

[5] We also reject the submission that the application judge’s reasons were incomplete. The application judge gave extensive reasons for his decision and was not required to address every piece of evidence.

[6] On the issue of the admissibility of the fresh evidence, namely, a November 2011 transcript and reasons for judgment in a Provincial Offences Act prosecution, the transcript was available prior to the hearing. The reasons are not relevant. The Provincial Offences Act proceedings dealt with different orders to comply, engaged a different burden of proof, and do not deal with injunctive relief. We agree with the respondent that these pieces of evidence should not be admitted.

[7] The appeal is dismissed.

[8] Costs are payable to the respondent and fixed in the amount of $7,500 inclusive of disbursements and all applicable taxes.

“K. M. Weiler J.A.”

“Paul Rouleau J.A.”

“S.E. Pepall J.A.”