Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241119 DOCKET: COA-23-CV-0944

Fairburn A.C.J.O., Coroza and Sossin JJ.A.

BETWEEN

Li Ma, the Estate of Yumei Zhang as represented by Yi Ma in his capacity as Litigation Administrator, and Homeland Trading Ltd. Plaintiffs (Appellants)

and

The Corporation of the Township of Wainfleet Defendant (Respondent)

Counsel: Alexander Evangelista and Shannon Reid, for the appellants Christine G. Carter, for the respondent

Heard and released orally: November 14, 2024

On appeal from the judgment of Justice Elizabeth C. Sheard of the Superior Court of Justice, dated August 14, 2023, with reasons reported at 2023 ONSC 4540.

Reasons for Decision

[1] This is an appeal from a judgment dismissing an action arising from the respondent Township’s destruction of a diseased apple orchard pursuant to the Weed Control Act, R.S.O. 1990, c. W.5 (the “Act”), and the Corporation of the Township of Wainfleet, bylaw No. 028-2013, Being a bylaw to designate certain diseased fruit trees as local weeds in the Township of Wainfleet (11 June 2013). Among other things, the appellants, who owned the orchard, sought general damages from the Township for negligence, misfeasance in public office, negligent assumption of jurisdiction, trespass, and nuisance. They also sought declarations that the subject by-law was “passed in bad faith, not in the public interest, and improperly targeted the plaintiffs” and was “vague, uncertain, overreaching, and ultra vires” the Act.

[2] After a 13-day trial, the trial judge rendered a detailed judgment. She reviewed the evidence and came to numerous findings of fact, including that the orchard was in fact highly diseased and presented a real and present risk to surrounding properties. She dismissed the request for declaration and specifically concluded that the bylaw is valid.

[3] The appellants raise numerous grounds of appeal. The primary ground of appeal is linked to what is alleged to be a bylaw created in bad faith and without notice to the appellants who are said to have been entitled to such notice.

[4] We see no error in the trial judge’s conclusion that the appellants were not deprived of procedural fairness. Her findings of fact belie this suggestion, including that the Township followed its own procedures, including giving public notice. The bylaw was squarely within the statutory authority granted under the Act, was akin to other bylaws in other municipalities, was subject to, and was approved by, the Minister of Agriculture, Food and Rural Affairs, and did not require consultation with any specific member of the public.

[5] The trial judge specifically concluded that the appellants were not targeted by the Township. This was an available conclusion on the evidence and the appellants simply failed to meet their onus on this point.

[6] Having concluded that the trial judge made no error in her conclusion regarding the bylaw, there are three other points we need address.

[7] First, the expert evidence. The admission and exclusion of the expert evidence lay largely within the discretion of the trial judge. We see no error in her exercise of that discretion. Second, the appellant alleges an inadequacy of reasons. In our view, the reasons were entirely adequate and allow the parties insight into how and why the trial judge reached her conclusions. Finally, the appellants left to their written submissions the suggestion that the trial judge erred in concluding that the appellants did not act in accordance with good farming standards. This is a factual conclusion that is owed deference by this court. We see no palpable and overriding error in this regard.

[8] The appeal is dismissed. Costs are granted to the respondent in the amount of $15,000, all-inclusive.

“Fairburn A.C.J.O.”

“S. Coroza J.A.”

“L. Sossin J.A.”