Court of Appeal for Ontario

Date: 2018-08-22 Docket: C64929

Judges: Sharpe, Juriansz and Roberts JJ.A.

Between

Mississippi Valley Conservation Authority Applicant (Respondent)

and

Rodolfo Mion and 1634088 Ontario Inc. Respondents (Appellants)

Counsel

Yavar Hameed, for the appellants

Helmut R. Brodmann, for the respondent

Heard

August 16, 2018

On Appeal

On appeal from the order of Justice R. Ryan Bell of the Superior Court of Justice, dated January 4, 2018.

Reasons for Decision

[1] The appellants appeal the order of the application judge finding them in contempt of the order of Lahaie J., dated April 19, 2017. The appellants had been convicted under the Conservation Authorities Act, R.S.O. 1990, c. C.27, following their interfering with and removing material from wetlands. Lahaie J. ordered each of them to "rehabilitate and restore the wetlands to conform with the guidelines and requirements set by the Mississippi Valley Conservation Authority with[in] 6 months of the date of this Order or such further time period as the MVCA may permit in writing."

[2] On appeal the appellants argue the order, standing alone, does not clearly delineate the restoration conditions proposed by the MVCA with which the appellants were ordered to comply, nor indicate what they are required to do, and reference is necessary to extrinsic elements. They submit this case is distinguishable from the authorities upon which the respondent relies because here the application judge found the order was ambiguous.

[3] The appellants tender as fresh evidence a letter from the MVCA, dated January 18, 2018, requiring the appellants to submit for MVCA's review a remediation plan prepared by an environmental professional indicating the specific detail of the remedial measures to be undertaken. The appellants submit the letter to demonstrate the order itself was not sufficiently clear on its face. They say that without a letter such as this, they could not know precisely what they were required to do to comply with the order.

[4] We accept that the order of Lahaie J. could have been expressed in more specific terms. However, her order must be read in the context of her reasons, which is what the application judge did. The application judge found the order to require the appellants to address the four restoration conditions listed in paragraph five of the reasons of Lahaie J. She found that the first condition was moot, and that the fourth condition was ambiguous and could not be the subject of a contempt order. She found that conditions 2 and 3 were not ambiguous and were sufficiently clear, and the appellants had to comply with them. Condition 2 required the replacing of stripped organic material that had been stockpiled on the property. Condition 3 required the replanting of native vegetative material that had been removed from the wetland.

[5] We accept also that the MVCA could have taken greater initiative in communicating its requirements to the appellants. That said, the lack of such a communication is not the reason the appellants failed to comply with the order. The application judge found the appellants' professed need for clarity of the order to be disingenuous.

[6] The appellants had rebuffed several attempts by the MVCA to engage them in complying with the order. Until the contempt motion, the appellants never took the position that the terms of the order were unclear and never made inquiries of the MVCA as to the remedial steps that had to be taken. The appellants had taken the position at the hearing of the charges against them that they were able to remediate the property. As the application judge observed, the appellants must be taken as knowing what they removed, from where and in what quantities.

[7] The application judge's conclusion that the appellants deliberately and wilfully ignored the order and defied it in a public way is deserving of deference and amply supported by the record. The appellants were not unable to comply with the order; they wilfully disobeyed it.

[8] The appeal is dismissed. Costs in favour of the MVCA are fixed in the amount of $5,000.00 all inclusive.

Robert J. Sharpe J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.