COURT OF APPEAL FOR ONTARIO
CITATION: Whitchurch-Stouffville (Town) v. Bolender, 2015 ONCA 533
DATE: 20150716
DOCKET: C58941
Hoy A.C.J.O., van Rensburg and Brown JJ.A.
BETWEEN
The Corporation of the Town of Whitchurch-Stouffville
Applicant/Respondent
and
Paul Bolender
Respondent/Appellant
Al Burton and David Germain, for the appellant
John R. Hart, for the respondent
Heard: January 23, 2015
On appeal from the order of Justice Hugh K. O’Connell of the Superior Court of Justice, dated May 20, 2014.
van Rensburg J.A.:
Introduction
[1] The appellant appeals from an order enjoining the use of his properties in contravention of the respondent’s site alteration and zoning by-laws.
[2] The appeal concerns activities at two contiguous properties (referred to as the “North Property” and “South Property”) in the Town of Whitchurch-Stouffville. The respondent Town claims that the appellant is operating an illegal waste disposal and waste transfer (which I will refer to collectively as “waste disposal”) business on both properties. As a result of complaints that fill was being illegally dumped at the properties, the Town brought an application under s. 440 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended (the “Act”), to enjoin the appellant’s contravention of its zoning and site alteration (fill and dumping) by-laws.
[3] The appellant contends that he has operated a peat moss extraction and triple mix soil preparation (“peat moss” or “triple mix”) business on the South Property on a continuous and uninterrupted basis from the time of its acquisition in 1971 to the present, and that the same business has been operated on the North Property since its acquisition in 1977. Triple mix soil is a combination of top soil, peat moss and compost, which is generally used for gardening purposes. The appellant argues that his use of the properties is either a permitted agricultural use or is a legal non-conforming use pursuant to s. 34(9) of the Planning Act, R.S.O. 1990, c. P.13. Hence, there has been no contravention of the zoning by-law. The appellant also contends that the “fill” activities at the site are part of its operations and not in contravention of the site alteration by-law.
[4] The application judge found that the appellant was carrying on a waste disposal business and not a peat moss or triple mix business. He granted an order in relation to the North Property restraining the appellant from contravening the site alteration by-law by certain specified activities, including dumping fill, removing topsoil or otherwise altering the grade of land without a permit, and in relation to both properties, restraining contravention of the relevant zoning by-law.
[5] The appellant seeks to set aside this order. He asks for a declaration that his use of the properties for his peat moss and triple mix business does not contravene the Town’s zoning or site alteration by-laws. In the alternative, the appellant seeks an order converting the application into an action and directing a trial before a different judge.
[6] For the reasons that follow, I would allow the appeal. In brief, I find that the application judge erred in concluding, on the record before him, that the appellant was operating only a waste disposal business and was not operating a peat moss or triple mix business. Further, the order restraining the appellant from violating the site alteration by-law was not supported by any findings, and cannot stand. The appropriate disposition, in the circumstances of this case, is to direct a trial of the various issues.
The Application
[7] The Town’s injunction application was pursuant to s. 440 of the Act, which provides as follows:
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 application at the instance of a taxpayer or the municipality or local board.
[8] Unlike s. 431 of the Act, which provides for a court to make an order prohibiting continued contravention of a by-law where a conviction has been entered, s. 440 does not require a prosecution to have taken place. Indeed, in the events leading to these proceedings, the Town commenced a prosecution against the appellant for violation of its site alteration by-law, but later withdrew the charges.
[9] The injunction application was determined on affidavit evidence. There were no cross-examinations, and no one requested before or at the hearing of the application that the application be converted to an action or that a trial of any issue be directed.
[10] The Town relied on affidavits from three of its employees: two municipal law enforcement officers (Teresa Hector and Stephen Small), who investigated alleged by-law infractions at the properties, and a planner (Alan Drozd)[^1]. The appellant relied on the affidavit of his son, John Bolender, who had been involved for many years in the family business at the properties, as well as the affidavits of a customer, two truck drivers and a business competitor.
The Evidence
[11] The Town’s evidence consisted largely of the observations of the two law enforcement officers who attended at the properties in 2013 to investigate complaints of a composting odour, trucks attending and dumping materials and the discharge of effluent from Hydrovac trucks. According to the Town, Hydrovac trucks transport water and material obtained from hydro excavation, a process where pressurized water is used to break up soil, and soil and water are vacuumed out, exposing areas for repair or inspection. Mr. Small took pictures that showed Hydrovac and dump trucks entering and leaving the properties, ponds filled with sludge-like materials, and piles of soil and what appear to be broken brick, concrete and other materials. Ms. Hector observed the Hydrovac trucks depositing sludge-like materials into two pits, and later noted that topsoil had been placed over a dried out sludge pit. Ms. Hector expressed the opinion that there was no evidence of any triple mix business at the site. She also referred to a prosecution of the appellant’s son by the Ministry of the Environment (the “MOE”) that had led to a guilty plea and conviction for operating an unapproved waste disposal site at the South Property contrary to the Environmental Protection Act, R.S.O. 1990, c. E.19 (“EPA”). The charge was laid after truckloads of food waste and grey waste were dumped at the site by a third party in 2006. According to Ms. Hector, “that use was discontinued thereafter as it was not being conducted in accordance with the law.”
[12] The appellant’s evidence was to the effect that he has carried out a peat moss and triple mix business since 1971 at the South Property and since 1977 at the North Property. The appellant’s son described the operations for harvesting peat moss and preparing triple mix, and explained the use of dump trucks to transport raw materials and finished product, and fill materials, at the site, and he stated that the Hydrovac trucks transport gravel-type materials used in the operations. A business competitor spoke of his observations of the peat harvesting business and use of fill to support operations, machinery and vehicles at the site and in his own business; two truck operators described how they had attended at the appellant’s properties since 1970 or 1971 to pick up peat and triple mix, and their observations of peat, topsoil and triple mix processing activities at the properties continually since that time; and a customer of the appellant deposed that he had purchased topsoil and triple mix from the appellant since 1975 and that he has personally witnessed peat and triple mix being trucked, using dump tracks, from the appellant’s property, continually since the early 1970s.
The Decision of the Application Judge
[13] The application judge noted that, in order to grant the injunction sought by the Town, he had to be satisfied on a balance of probabilities that the Town had made out its case for the relief sought in respect of each property. He concluded that there was currently a waste disposal business in operation at the properties. He rejected entirely the evidence that there was a peat moss and triple mix business. He relied on the Town’s photos which showed construction and other waste, and that, according to the application judge, “do not depict any evidence of a peat moss or triple mix enterprise” (para. 65) and the statement of Ms. Hector that at no time during her attendances at either property had she observed a “triple mix soil” or gardening operation, and that she had personally observed Hydrovac trucks dumping sludge-like materials (para. 66). The application judge rejected the appellant’s affidavit evidence in favour of “the objective evidence of attendances by [the enforcement officers], inclusive of the pictures taken” (para. 88).
[14] The application judge rejected the appellant’s evidence that the Hydrovac trucks transported gravel-type materials used in the operations, noting that that evidence “could not stand the test of veracity when considered against the evidence of Ms. Hector and the pictorial evidence presented by Mr. Small” (para. 93).
[15] Finally, the application judge relied on the fact that no business records had been produced by the appellant to verify what he said about the type of business he was carrying on (para. 97).
[16] The application judge concluded that the properties were being used for waste disposal, and not for peat moss or triple mix production. While this was determinative of the application (as no one claimed that waste disposal was a permitted use), the application judge went on to find that, if there had been an historical peat moss or triple mix business at the South Property, this use had been “fractured” in 2006, at the time of the waste dumping that led to the EPA charges (para. 109). He found it unnecessary to determine whether all or any part of the appellant’s operations would fall within the scope of the zoning by-law as permitted agricultural operations (para. 111).
Issues on Appeal
[17] There are two main issues on appeal: (1) whether the application judge erred in his approach to and evaluation of the evidence respecting the use of the properties, and if so, whether the application ought to be converted to an action or a trial of certain issues should be directed; and (2) whether there were findings to support the application judge’s order restraining contravention of the site alteration by-law.
[18] I would answer the two parts of the first question in the affirmative, and the second question in the negative. As these grounds are sufficient to dispose of the appeal, I do not propose to address the other issues raised by the appellant regarding the proper test for determining whether a legal non-conforming use has been established, and whether, once a by-law breach has been proven, a court can refuse an injunction under s. 440 of the Act.
Analysis
1. The application judge erred in his approach to and evaluation of the evidence about the use of the properties
[19] In order to obtain an injunction to restrain the violation of its zoning by-law, it was incumbent on the Town to establish that the appellant was in breach of the by-law.
[20] In my view, the application judge erred, on the record before him, in concluding that the appellant was not carrying on a peat moss or triple mix business at the properties, and therefore that the zoning by-law had been contravened. This conclusion was based on a misapprehension of the evidence, which tainted his analysis. There were three fundamental problems with the application judge's approach to and evaluation of the evidence.
[21] First, the application judge conducted his analysis on the basis that the Town’s evidence was entirely and exclusively supportive of the Town’s position that the appellant’s properties were being used for waste disposal, and that the appellant’s evidence was entirely to the contrary. The application judge then resolved the principal issue in the application by rejecting the appellant's evidence and accepting that of the Town.
[22] The application judge found that John Bolender’s evidence regarding the use of Hydrovac trucks “[could not] stand the test of veracity when considered against the evidence of Ms. Hector and the pictorial evidence presented by Mr. Small” (para. 92), and that Ms. Hector’s evidence regarding the sludge pits and Hydrovac trucks “[could not] be reconciled with the content of the affidavit of Mr. John Bolender” (para. 99).
[23] The Town’s evidence, however, was not exclusively supportive of the conclusion that the properties were being used for waste disposal. Nor was John Bolender’s evidence inconsistent with what was depicted in the photos and observations of the law enforcement officers. Rather, the photos - that were described as “objective” and relied on by the application judge as undeniable proof of waste disposal activities – were largely consistent with the appellant’s evidence. The photos depicted Hydrovac trucks, dump trucks, and construction and other debris at the site. The appellant’s evidence explained how such equipment and materials are used in the peat moss and triple mix business.
[24] Moreover, the appellant’s evidence about the historical use of the properties was supported by aspects of the Town’s own evidence: that, according to the Town’s records, “[the appellant] has asserted that such use has always been a triple mix soil operation”, and the agreed statement of facts from the MOE prosecution that stated that a peat moss extraction and composting business operated at the site.
[25] Accordingly, the appellant’s evidence and the Town’s evidence were not entirely at odds. Rather, significant aspects of the Town’s evidence revealed circumstances consistent with both a waste disposal business and a peat moss and triple mix business.
[26] Secondly, the application judge erred in resolving contradictions in the evidence by characterizing the Town’s evidence as “objective”, “objectively assembled” and “independent verification”, and implicitly finding that the appellant’s evidence was not objective and independent. In rejecting the appellant’s evidence, the application judge noted that “although [the affiants] attest to personally witnessing peat and triple mix operations over the decades, their affidavits have to be considered in light of the objective evidence of the attendances by Ms. Hector and Mr. Small, inclusive of the pictures taken” (para. 88). However, all five of the affidavits from the appellant’s witnesses offered personal observations from their direct dealings with the appellant’s business over a number of years, and four of the affiants appeared to be arms-length. The Town’s evidence, in the form of affidavits from its employees, was no more objective and independent than the evidence offered by the appellant, especially given the Town’s decision not to cross-examine the appellant’s affiants.
[27] Thirdly, the application judge appears to have taken into account irrelevant considerations in evaluating whether the appellant’s land use contravened the Town’s zoning by-law. While the application judge did not make any specific findings of violations of provincial environmental laws (which was outside the scope of the application, and the Town’s enforcement jurisdiction), he appears to have been influenced by the many references in the Town’s materials to alleged EPA violations (see references at paras. 67 and 89-91). The issue before the application judge, however, was not whether the appellant violated environmental laws administered by the MOE, but whether and in what respect the Town’s by-laws were being contravened.
[28] The evidence was that Hydrovac trucks were depositing material into “sludge ponds” on the properties. It was not suggested that the Hydrovac trucks contained waste materials similar to what had been dumped in 2006, but that they contained a mixture of soil and water (from hydro excavations) that the Town characterized as “waste”, and that John Bolender characterized as “gravel- like material” used in the peat moss and triple mix operations. It appears that the application judge concluded from the fact that materials were being dumped that the properties were being used for waste disposal purposes.
[29] On the key issue of whether the appellant was using the properties in contravention of the Town’s zoning by-law, the application judge was faced with a dispute over the significance of two pieces of evidence – the appellant’s dumping of debris on the properties and the discharge of materials from the Hydrovac trucks into “sludge ponds”. The Town contended such conduct established the appellant was conducting a waste disposal business on the properties, whereas the appellant took the position that the conduct formed part of the lawful businesses it ran on the properties. Instead of directing a testing of that evidence through the trial of an issue, the application judge attempted to resolve the conflicting positions, including disputes about the credibility of some of the affiants, solely on the written record, and I have described above the errors he made in that effort.
[30] Although, in a proper case, it may be possible for an application judge when dealing with a s. 440 injunction, to resolve disputed material facts and issues of credibility on a written record, in Newcastle Recycling Ltd. v. Clarington (Municipality), 2005 CanLII 46384 (ON CA), [2005] O.J. No. 5344 (C.A.), this court emphasized the caution which an application judge must bring to such an exercise. In the present case, the conflicting evidence presented by the parties about the past and current uses of the North and South Properties could not be resolved by reference to unambiguous, unequivocal documentary evidence – the photos of the “sludge ponds” raised as many questions about the use of the properties as they answered. Faced with such conflicting evidence on key issues in the written record, the application judge should have refused the relief sought by the respondent. The appropriate disposition at this stage is to direct the trial of the issues in the application.
2. The application judge erred in restraining violations of the site alteration by-law without making the necessary factual findings
[31] The application judge granted the injunctions in the specific terms requested by the Town, including an order restraining contravention of four specific provisions of the site alteration by-law at the North Property. Significant parts of the Town’s evidence were directed to the alleged violation by the appellant of its site alteration by-law. Indeed, the investigation undertaken by the Town was with respect to the alleged fill activities at the properties undertaken without a permit. Unfortunately, however, the application judge restricted his factual findings to those in support of his conclusion that the properties were being used for waste disposal rather than peat moss and triple mix. He did not make any findings about the site alteration by-law, or where and in what respect the appellant had violated its specific terms. As such, the order enjoining violation of the site alteration by-law must be set aside.
Disposition
[32] For these reasons, I would allow the appeal. I would set aside the order of the application judge and direct a trial of the issues before a different judge to determine whether the appellant’s use of the properties contravenes the Town’s zoning by-law, whether with respect to the North Property the appellant is contravening the Town’s site alteration by-law, and, if so, the scope and content of any injunctive relief to which the Town may be entitled.
Costs
[33] I would award the appellant his costs of the appeal in the sum of $20,000, inclusive of disbursements and HST. With respect to the costs of the application, I would set aside the application judge’s costs order and reserve the costs of the entire application to the judge who hears the trial of the issues ordered.
Released: (KMvR) July 16, 2015
“K. van Rensburg J.A.”
“I agree Alexandra Hoy A.C.J.O.”
“I agree David Brown J.A.”
[^1]: The planner’s evidence consisted of his “professional planning opinions” on the issues the application judge had to determine respecting the applicable zoning of the properties and whether the appellant was engaged in a permitted use or had established a legal non-conforming use. This evidence was not relied upon by the application judge in his decision, was not material to the question he determined as to the appellant’s use of the properties and accordingly will not be referenced in these reasons.