Court Information

Information Nos.: 11-7140 and 11-7141

Date: 2012-05-15

Ontario Court of Justice

Provincial Offences Court – Burlington, Ontario

Parties

Between:

Her Majesty The Queen, in right of the Ministry of Natural Resources of Ontario

— AND —

Timur Leckebusch and 819743 Ontario Inc.

Judicial Officer and Counsel

Before: Justice of the Peace Kenneth W. Dechert

Heard: January 16, 2012

Reasons for Judgment Released: May 15, 2012

Counsel:

• S. Dunsmuir – counsel for the Crown
• T. Arnold – counsel for the defendants, Timur Leckebusch and 819743 Ontario Inc.

Statutes, Regulations, Rules and Plans Cited

• Legislation Act, 2006, S.O. 2006, c. 21, as amended, ss. 64(1), 64(2)
• Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended, s. 1, s. 2, ss. 8(a)(b)(c)(d)(e)(f)(g), s. 22, ss. 24(1), 24(2), 24(4)
• Niagara Escarpment Plan (2005), as amended to April 1, 2011, Part 1.3, Part 1.5 and Appendix 2
• Ontario Regulation 826, R.R.O. 1990, Regulation 826, as amended, s. 1
• Ontario Regulation 828, R.R.O. 1990, Regulation 828, as amended, ss. 1(1), s. 5, para. 9
• Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, ss. 38(1), 46(4), 47(3)

Cases Cited

• Conlin v. Prowse, [1993] O.J. No. 2923 (Ont. Ct. – Gen. Div.)
• Darcie v. Niagara Escarpment Commission, [2008] O.E.R.T.D. No. 44 (Ontario Environmental Review Tribunal)
• Miller v. Minister of Pensions, [1947] 2 All E.R. 372 (K.B.)
• Ontario (Minister of Transport) v. Ryder Truck Rental Canada Ltd., 47 O.R. (3d) 171 (Ont. C.A.)
• Pemberton v. Niagara Escarpment Commission, unreported - August 10, 2007 (Niagara Escarpment Commission Hearing Officer)
• Re Becker Milk Co. Ltd. v. City of London, 44 O.R. (2d) 385
• Regina v. Gladue, [1999] 1 S.C.R. 688 (S.C.C.)
• Regina v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.)
• Regina v. Sault Ste. Marie (City), 2 S.C.R. 1299; 40 C.C.C. (2d) 354 (S.C.C.)

Publications Cited

• Driedger, Elmer A., The Construction of Statutes, First Edition (Toronto: Butterworths, 1974)
• Oxford University Press, The Concise Oxford Dictionary, 8th ed. (Oxford University Press, 1990)

REASONS FOR JUDGMENT

K.W. DECHERT J.P. (orally):

INTRODUCTION

[1] By means of Information no. 11-7140, the defendant Timur Leckebusch stands charged that he between the 11th day of August, 2008 and the 10th day of December, 2009, at 9328 Sideroad 15, Town of Halton Hills, in the Regional Municipality of Halton, Ontario, did commit the offence of unlawfully, in an area of Development Control, undertake a development, to wit: the construction of a berm, without a permit, contrary to section 24(1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended, and furthermore that he, between the 10th day of December, 2009 and the 24th day of June 2010, at 9328 15th Sideroad, Town of Halton Hills, in the Regional Municipality of Halton, did unlawfully, in an area of Development Control, undertake a development, to wit: the construction of a retaining wall, without a development permit, contrary to section 24(1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended.

[2] On January 16th, 2012, the defendant, Timur Leckebusch, was arraigned on the said charges, and a plea of not guilty to each of the charges was entered on his behalf, by his counsel. A trial of the charges then ensued before me.

[3] Furthermore, by means of Information no. 11-7141, the defendant 819743 Ontario Inc. stands charged that it, between the 1st day of January 2009 and the 18th day of August, 2010, at 9328 15th Sideroad, Town of Halton Hills, in the Regional Municipality of the Halton, did unlawfully, in an area of Development Control, undertake a development, to wit: the construction of an armour stone wall, without a permit, contrary to section 24(1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended.

[4] On January 16th, 2012, the defendant, 819743 Ontario Inc. was arraigned on the said charge and a plea of not guilty was entered by its counsel. A trial of the charge then ensued before me.

[5] Upon considering the joint motion of the Crown and both defendants herein, the Court ordered that the trial of the charges set forth above against the two separate defendants, contained in two separate informations, be tried together, in accordance with the provisions of subsection 38(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended.

[6] The trial of the subject charges began on January 16th, 2012 and was completed on that date. The matters were then adjourned until May 15th, 2012, for my judgment.

[7] The Crown was represented by its counsel, Mr. S. Dunsmuir. The defendants were represented by their counsel, Mr. T. Arnold.

RELEVANT STATUTORY PROVISIONS

[8] The defendants stand charged with offences under subsection 24(1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended, hereinafter referred to as "the N.E.P.D.A." That subsection reads as follows:

Despite any other general or specific Act, if an area of development control is established by regulation made under section 22, no person shall undertake any development in the area unless such development is exempt under the regulations or unless the development complies with a development permit issued under this Act.

[9] In addition to subsection 24(1) of the N.E.P.D.A., the following sections of the said Act are relevant to the issues in this proceeding:

Section 1:

• 'development' includes a change in the use of any land, building or structure
• 'Minister' means the member of the Executive Council to whom the administration of this Act is assigned
• 'Niagara Escarpment Plan' means a plan, policy and program, or any part thereof, as approved by the Lieutenant Governor in Council under this Act on June 12, 1985 and amended and revised in accordance with this Act, covering the Niagara Escarpment Planning Area, or any part thereof defined in the Plan, designed to promote the optimum economic, social, environmental and physical condition of the Area, and consisting of the texts and maps describing the program and policy

Section 2: The purpose of this Act is to provide for the maintenance of the Niagara Escarpment and lands in its vicinity substantially as a continuous natural environment, and to ensure only such development occurs as is compatible with that natural environment.

Section 8: The objectives of the Niagara Escarpment Plan are, and the objectives to be sought in the consideration of amendments to the Plan shall be, in the Niagara Escarpment Planning Area:

(a) to protect unique ecologic and historic areas;

(b) to maintain and enhance the quality and character of natural streams and water supplies;

(c) to provide adequate opportunities for outdoor recreation;

(d) to maintain and enhance the open landscape character of the Niagara Escarpment in so far as possible, by such means as compatible farming or forestry and by preserving the natural scenery;

(e) to ensure that all new development is compatible with the purpose of this Act as expressed in section 2;

(f) to provide for adequate public access to the Niagara Escarpment; and

(g) to support municipalities within the Niagara Escarpment Planning Area in their own exercise of the planning functions conferred on them by the Planning Act.

Section 22: The Minister may make regulations designating any area or areas of land within the Niagara Escarpment Planning Area as an area of development control.

Subsection 24(2): The Minister may issue development permits and may include such terms and conditions as he or she considers advisable.

Subsection 24(4): Every person who contravenes subsection (1) is guilty of an offence…

[10] The following portions of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, hereinafter referred to as "the P.O.A.", are relevant to these proceedings:

Subsection 38(1): The court may, before trial, where it is satisfied that the ends of justice so require, direct that separate counts, informations or certificates be tried together or that persons who are charged separately be tried together.

Subsection 46(4): The court may receive and act upon any facts agreed upon by the defendant and prosecutor without proof or evidence.

Subsection 47(3): The burden of proof that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

[11] The following subsections of the Legislation Act, 2006, S.O. 2006, c. 21, as amended, are relevant to these proceedings:

Subsection 64(1): An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

Subsection 64(2): Subsection (1) also applies to a regulation, in the context of the Act under which it is made and to the extent that the regulation is consistent with the Act.

[12] Ontario Regulation 826, R.R.O. 1990, Regulation 826, as amended, made pursuant to the N.E.P.D.A., titled "Designation of Area of Development Control", is relevant to this proceeding. Section 1 of that regulation reads as follows:

s. 1. The area of land within the Niagara Escarpment Planning Area set forth in the Schedule is designated as an area of development control.

[13] Ontario Regulation 828, R.R.O. 1990, Regulation 828, as amended, made pursuant to the N.E.P.D.A., titled "Development within the Development Control Area", is relevant to this proceeding. In this proceeding, I have considered the following portions of the said regulation:

Subsection 1(1): In this Regulation:

• 'general agricultural development' means a class of development whereby land, buildings or structures are used for the purpose of forestry, field crops, fruit farming, market gardening, dairying, animal husbandry, poultry raising, beekeeping, the operation of glass or plastic covered greenhouses, and such uses as are customarily and normally related to agriculture, but does not include special agricultural development;

• 'structure' does not include a fence that has a minimum height of 2.4 metres (8 feet) or is permitted in a municipal by-law governing the erection of fencing;

Section 5: The following classes of development, if listed as permitted uses under the land use policies established in the Niagara Escarpment Plan and not in conflict with a development permit issued under the Act, are exempt from the requirement of obtaining a development permit:

Paragraph 9: The construction of a building, structure or facility accessory to general agricultural development, other than a dwelling or pond if, on completion of the development, all of the following conditions are met:

i. The area of the lot on which the construction occurred is at least 20 hectares;

ii. The side yard depth of the lot on which the construction occurred is at least 15 metres;

iii. The rear yard depth of the lot on which the construction occurred is at least 15 metres;

iv. The building, structure or facility is at least 90 metres from the centre line of an abutting open public road.

[14] The following portions of The Niagara Escarpment Plan (2005), approved by the Lieutenant Governor on June 1, 2005, as amended to April 1, 2011, made pursuant to the N.E.P.D.A., are relevant to this proceeding:

Land Use Policies

1.3 Escarpment Natural Area

Escarpment features which are in a relatively natural state and associated stream valleys, wetlands and forests which are relatively undisturbed are included within this designation. These contain important plant and animal habitats and geological features and cultural heritage features and are the most significant natural and scenic areas of the Escarpment. The policy aims to maintain these natural areas.

Objectives:

1. To maintain the most natural Escarpment features, stream valleys, wetlands and related significant natural areas and associated cultural heritage features;

2. To encourage compatible recreation, conservation and educational activities;

3. To maintain and enhance the landscape quality of Escarpment features.

Permitted Uses:

Subject to Part 2, Development Criteria, the following uses may be permitted:

1. Existing agricultural operations.

2. Accessory buildings, structures and facilities (eg. a garage or farm pond), signs, and the site modifications required to accommodate them.

1.5 Escarpment Rural Area

Escarpment rural areas are an essential component of the Escarpment corridor, including portions of the Escarpment and lands in its vicinity. They provide a buffer to the more ecologically sensitive areas of the Escarpment.

Objectives:

1. To maintain scenic values of lands in the vicinity of the Escarpment.

2. To maintain the open landscape character by encouraging the conservation of the traditional cultural landscape and cultural heritage features.

3. To encourage agriculture and forestry and to provide for compatible rural land uses.

4. To provide a buffer for the more ecologically sensitive areas of the Escarpment.

5. To provide for the designation of new Mineral Resource Extraction Areas which can be accommodated by an amendment to the Niagara Escarpment Plan.

Permitted Uses:

Subject to Part 2, Development Criteria, the following uses may be permitted:

1. Agricultural operations.

2. Accessory buildings, structures and facilities (eg. a garage or farm pond), signs, and the site modifications required to accommodate them.

Appendix 2 – Definitions:

The following definitions have been compiled to assist the reader with the interpretation of the Niagara Escarpment Plan.

• 'Accessory Building and/or Structure' – a detached building or structure that is not used for human habitation, the use of which is naturally and normally incidental to, subordinate to, or exclusively devoted to a principal use or building and located on the same lot.

• 'Accessory Use' – the use of any land, building or structure which is subordinate to and exclusively devoted to a principal use located on the same lot.

• 'Agricultural Operation' – the carrying out of an agricultural use.

• 'Agricultural Use' – the land, building or structure used for the purpose of animal husbandry, horticulture, beekeeping, dairying, fallow, field crops, fruit farming, fur farming, market gardening, maple syrup production, pasturage, poultry keeping, mushroom farming or any other farming use and may include growing, raising, small-scale packing and storing of produce on the premises and other similar uses customarily carried out in the field of general agriculture.

THE EVIDENCE

[15] During this proceeding, the parties herein tendered into evidence a document titled "Agreed Statement of Facts", under the authority of subsection 46(4) of the P.O.A. This document, together with appendices A, B, C and D thereto was entered into evidence in this proceeding as exhibit #1.

[16] Appendix 'A' to the said "Statement", is a document which sets out the "Development Permit History" for the parcel of land municipally known as 9328 15th Sideroad, Town of Halton Hills, Regional Municipality of Halton. Appendix 'B' contains a number of documents, including a letter from the Niagara Escarpment Commission to one Bert Arnold, dated July 9th, 2010, regarding a development permit for the subject property, a copy of a development permit issued to Timur Leckebusch and 819743 Ontario Inc., for the property described as Part Lot 15, Concession 4, 9328 15th Sideroad, Town of Halton Hills, Region of Halton, to construct a berm as a noise attenuation/spectator viewing feature, dated July 9th, 2010 and a document being a report from David Johnston, Planner and Ken Whitbread, Manager, being staff members of the Niagara Escarpment Commission, recommending approval of the application of Timur Leckebusch and 819743 Ontario Inc. for a development permit for the construction of an earthen berm along the east side of the main driveway on the subject property, for purposes of noise attenuation/spectator viewing, dated May 11th, 2010.

[17] Appendix 'C' contains a black and white photograph of the retaining wall on the east side of the berm adjacent to the "International Grand Prix Sand Ring", located on the subject property owned by Timur Leckebusch, taken on June 24th, 2010. Appendix 'D' contains a black and white photograph of an armour stone wall located on a parcel of land municipally known as 9328 15th Sideroad, in the Town of Halton Hills and the Regional Municipality of Halton, owned by 819743 Ontario Inc.

[18] In addition to the "Agreed Statement of Facts" entered as exhibit #1 to this proceeding, the only other piece of evidence received by me in this proceeding was a copy of the Niagara Escarpment Plan, as of April 1, 2011, which was entered into evidence in this proceeding as exhibit #2.

[19] The document titled "Agreed Statement of Facts" (exhibit #1 herein) reads as follows:

Agreed Statement of Facts

R. v. Leckebusch

R. v. 819743 Ontario Inc.

1. Timur Leckebusch is the owner of the western half of Part lot 15 (hereinafter 'the Leckebusch Property').

2. The Leckebusch property is at least 20 hectares, with a side yard depth of at least 15 meters, and a rear yard depth of at least 15 metres.

3. 819743 Ontario Inc. is the owner of the eastern half of Part lot 15 (hereinafter 'the 819743 Property').

4. The 819743 Property is at least 20 hectares, with a side yard depth of at least 15 meters, and a rear yard depth of at least 15 meters.

5. The municipal address for both the Leckebusch Property and the 819743 Property is 9328 15th Sideroad, Halton Hills, Regional Municipality of Halton, Ontario.

6. Timur Leckebusch is the sole officer and director of 819743 Ontario Inc.

7. Timur Leckebusch operates an equestrian farm and horse show facility from the Leckebusch Property and the 819743 Property through a corporation, Halton Place Horse and Country Limited, in which Timur Leckebusch is the sole officer and director.

8. The Leckebusch Property and the 819743 Property are within the Development Control area, as described by Ontario Regulation 826 of the Niagara Escarpment Planning and Development Act, since the Regulation's inception on June 10, 1975. The lands are designated both Escarpment Rural Area and Escarpment Natural Area under the Niagara Escarpment Plan.

9. Past development permits issued for the property are listed in Appendix A.

The Earthen Berm

10. An earthen berm was constructed adjacent to a riding ring for horses (the International Grand Prix Ring) at some time after April 1, 2009 but prior to December 10, 2009.

11. The berm is located on the Leckebusch property.

12. On December 10, 2009, NEC [Niagara Escarpment Commission] Officer Matthew Williamson and NEC Planner David Johnston conducted an inspection and advised that the position of the NEC was that a development permit was required for the construction of the berm.

13. On February 12, 2010, Development Permit Application for the berm was submitted to the NEC by Mr. Leckebusch and 819743 Ontario Inc.

14. On July 9, 2010 a Development Permit for the berm was issued (Permit 9732H/F/2009-2010/286 to Mr. Leckebusch and 819743 Ontario Inc.

15. The details of Permit 9732H/F/2009-2010/286 are as follows: berm height is 1 m. (3.28 ft.) above existing grade; berm length is about 60 m. (196.85 ft.); and ties in with much larger berm/visitor viewing area on the east side and smaller discontinuance berm along the north side of the riding ring.

16. The berm is located at least 90 meters from the centre line of an abutting open public road.

The Retaining Wall

17. A further inspection of the property was conducted by NEC Officer Matthew Williamson and NEC Planner David Johnston on June 24th, 2010. A retaining wall approximately 1.2 meters (4 ft.) in height and approximately 55 meters (180 ft.) in length was observed. There was no development permit issued for this wall.

18. The retaining wall was constructed between December 10, 2009 and June 24, 2010 on the east side of the berm adjacent to the International Grand Prix Sand Ring, which is entirely on the Leckebusch Property. A photograph of the retaining wall, taken June 24, 2010, is attached as Appendix C.

19. The retaining wall is located at least 90 meters from the centre line of an abutting open public road.

The Armour Stone Wall

20. On August 18, 2010, an employee of the Town of Halton Hills attended the property in response to a complaint. During his visit, he observed and photographed an armour stone wall. The wall had been constructed adjacent to the Grand Prix Sand Ring, which is entirely located on the 819743 Property.

21. The armour stone wall is between 1.5 and 2 meters in height. It had been built between June 24, 2010 and August 18, 2010. There was no development permit issued for this wall. A photograph of the armour stone wall, taken August 18, 2010, is attached as Appendix D.

22. The armour stone wall is located at least 90 meters from the centre line of an abutting open public road.

DATED THE 11th DAY OF JANUARY, 2012

[20] As part of the evidentiary foundation in this proceeding, the counsel for the defendants herein points out that appendix 'A' to the agreed statement of facts sets out the development permit history for the abutting properties owned by Timur Leckebusch and 819743 Ontario Inc. The counsel notes that the appendix shows that in respect of the property municipally known as 9328 15th Sideroad, Town of Halton Hills, Regional Municipality of Halton, development permits had been issued by the Niagara Escarpment Commission on a number of occasions, for purposes of a "horse show". Upon reviewing the said document, I note that between September 23rd, 2004 and April 16th, 2009, the Niagara Escarpment Commission had issued seven development permits to authorize the operation of various types of "horse shows" or "equestrian events" on the subject property.

[21] Furthermore, during his final submissions in this proceeding the counsel for the defendants made reference to the contents of appendix 'B' to the agreed statement of facts". The counsel identified the some of the recommendations made by staff members of the Niagara Escarpment Commission, in respect of the defendants' application of February 12th, 2010, for a development permit to permit the construction of the said earthen berm on the subject property. In particular, the counsel pointed out the staff opinion that the subject berm constituted an incidental facility to agriculture, as well as the conclusion of Commission Planner, David Johnston and Commission Manager, Ken Whitbread that "An incidental facility (in this case to agriculture), such as a berm, may be permitted, in principle, provided the impact on the natural environment is minimal". In the opening paragraph to their conclusion of their analysis of the defendants' development permit application, Mr. Johnston and Mr. Whitbread stated as follows:

The proposal, as an incidental facility to an agricultural use, can comply with the NEP [Niagara Escarpment Plan] as it would have nominal impact on the Escarpment open landscape and natural environment.

THE ISSUES

[22] The defendants herein are charged with offences contrary to subsection 24(1) of the N.E.P.D.A. The subject offences are, in my view, properly characterized as public welfare offences and accordingly are presumptively offences of strict liability, following the analysis enunciated by the Supreme Court of Canada in its seminal decision in Regina v. Sault Ste. Marie (City), 2 S.C.R. 1299; 40 C.C.C. (2d) 354 (S.C.C.) There is no evidence in this proceeding which rebuts the presumption that the subject offences constitute strict liability offences.

[23] In describing the category of strict liability offences in his decision in Sault Ste. Marie, supra. Dickson J. (as he then was) stated that such offences were "offences in which there is no necessity for the prosecution to prove the existence of mens rea" noting that "the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care". He went on to state as follows:

This involves a consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. …

[24] Accordingly, in the case at bar, the Crown need not prove that the defendants intended to commit the alleged prohibited acts. In these matters, the Crown only need prove the actus reus of the subject offences to the standard of proof beyond a reasonable doubt. If the Crown is able to meet its burden of proof in that regard, the mental element of negligence is presumed and automatically imported into the subject offence. In that circumstance, the legal burden of proof shifts from the Crown to each defendant to attempt to prove on a balance of probabilities that in committing the offences they took all reasonable care. This defence is commonly known as the defence of due diligence. If the defendants are able to establish due diligence on a balance of probabilities, they will be excused of liability for the offences and acquitted of the offences. On the other hand, if the defendants are not able to prove the due diligence defence, then they will be convicted of the strict liability offences in light of the fact that the actus reus of the offences has been proved beyond a reasonable doubt.

[25] Furthermore, upon perusing the text of subsection 24(1) of the N.E.P.D.A., I note that the subsection discloses the existence of a statutory exemption to liability for the subject offences. According to section 5 of the Ontario Regulation 828, made pursuant to the N.E.P.D.A. certain classes of development are exempted from the requirement of obtaining a development permit. In this case, the defendants argue that they are exempt from the requirement of obtaining permits for the developments to the subject properties, in the form of the earthen berm, the retaining wall and the armour stone wall, on the basis of the provisions of section 5, paragraph 9 of the said Regulation.

[26] Under the provisions of subsection 47(3) of the P.O.A., the legal burden of proof in respect of whether a statutory authorization, exception, exemption or qualification operates in favour of a defendant, rests on the defendant to establish on a balance of probabilities. If the defendants are able to prove that the exemptions prescribed by statute and particularized in Ontario Regulation 828, operate in their favour, then their actions in allegedly undertaking the various developments on the subject properties without first obtaining a development permit are justified and they will be acquitted of the subject offences.

[27] In the cases at bar, the counsel for the defendants has not proffered a defence of due diligence on behalf of either of the defendants. He is, however, relying on the exemption prescribed in subsection 24(1) of the N.E.P.D.A. considered in combination with section 5 paragraph 9 of Ontario Regulation 828. He argues that defendant Timur Leckebusch was justified in not obtaining development permits for the earthen berm and retaining wall developments on his property, as these developments were exempt from the requirement of obtaining a development permit. Similarly, the counsel for the defendants submits that the defendant 819743 Ontario Inc. was justified in not obtaining a development permit for the armour stone wall development on its property. Accordingly, the counsel for the defendants submits that both defendants should be acquitted of all of the three charges against them.

[28] The issues to be resolved herein are as follows:

1. whether the Crown has proven all of the elements of the actus reus of the two charges against the defendant, Timur Leckebusch, beyond reasonable doubt;

2. if the Crown has proven the actus reus of the said charges, whether the defendant has established that the exemption set out in both subsection 24(1) of the N.E.P.D.A. and section 5, paragraph 9 of Ontario Regulation 828, operates in his favour, on a balance of probabilities; and

3. whether the Crown has proven all of the elements of the actus reus of the charge against the defendant 819743 Ontario Limited, beyond a reasonable doubt;

4. if the Crown has proven the actus reus of the said charge, whether the defendant has established that the exemption set out in both subsection 24(1) of the N.E.P.D.A. and in section 5, paragraph 9 of Ontario Regulation 828, operates in its favour, on a balance of probabilities.

[29] If the defendants Timur Leckebusch or 819743 Ontario Inc. are able to prove the said exemption to liability for the subject offences, then they will be found to be justified in committing the prohibited acts and will be entitled to be acquitted of the subject offences.

ANALYSIS

[30] In this section of my judgment, I will be engaging in an assessment of the reliability of the evidence before me and then applying the relevant statutory and common law to that evidence in order to determine whether the Crown has proven the actus reus of the subject offences herein, beyond a reasonable doubt and, if so, whether the defendants have discharged their onus of proving, on a balance of probabilities, whether the exemption to quasi-criminal liability for the subject offences, prescribed by subsection 24(1) of the N.E.D.P.A. and section 5, paragraph 9 of Ontario Regulation 828, operates in favour of the defendants.

[31] In conducting such an analysis of the evidence and the law, I will need to, from time to time, embark on an exercise in statutory interpretation. In doing so, I must be cognizant of the rule of statutory interpretation contained in subsections 64(1) and 64(2) of the Legislation Act, 2006, supra. Accordingly, when interpreting provincial legislation, I am required to interpret the subject Act as being remedial, and give it "such fair, large and liberal interpretation as best ensures the attainment of its objects".

[32] Furthermore, in interpreting legislation, the preponderance of jurisprudence directs me to apply the "modern principle" of statutory interpretation, which was initially defined by author Mr. Elmer A. Driedger in his tome titled, The Construction of Statutes, First Edition (Toronto: Butterworths, 1974). In his decision in Ontario (Minister of Transport) v. Ryder Truck Rental Canada Ltd., 47 O.R. (3d) 171 (Ont. C.A.), Laskin J.A. described the modern principle of statutory interpretation, as follows:

The modern approach to statutory interpretation calls on the court to interpret a legislative provision in its total context. The court should consider and take into account all relevant and admissible indicators of legislative meaning. The court's interpretation should comply with the legislative intent, promote the legislative purpose, reflect the legislature's intent and produce a reasonable and just meaning. The Supreme Court has repeatedly affirmed this approach to statutory interpretation, most recently in R. v. Gladue, [1999] 1 S.C.R. 688 at p. 704 (S.C.C.)…, where Cory and Iacobucci JJ. wrote:

As this Court has frequently stated, the proper construction of a statutory provision flows from reading the words of the provision in their grammatical and ordinary sense and in their context, harmoniously with the scheme of the statute as a whole, the purpose of the statute, and the intention of Parliament. The purpose of the statute and the intention of Parliament, in particular, are to be determined on the basis of intrinsic and admissible extrinsic sources regarding the Act's legislative history and the context of its enactment…

[33] In determining whether a party has proven an element or elements of an offence "beyond a reasonable doubt" in this decision, I have applied the definition of that expression as contained in the "suggested jury charge", crafted by Cory J. and enunciated in his decision in Regina v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.) In that regard, Mr. Justice Cory stated, in part, as follows:

What does the expression 'beyond a reasonable doubt' mean?

The term 'beyond a reasonable doubt' has been used for a very long time and is part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something needs to be said regarding its meaning.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather it is based on reason and common sense. It is logically derived from the evidence or lack of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard is impossibly high.

[34] In assessing whether a party has established a fact or element to the civil level of proof, on a "balance of probabilities", in this decision I have followed the definition of that standard of proof as stated by Lord Denning in his decision in Miller v. Minister of Pensions, [1947] 2 All E.R. 372 (K.B.). In that regard, the jurist stated as follows:

[The burden of proof in civil cases] must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'We think it is more probable than not,' the burden is discharged, but, if the probabilities are equal, it is not.

(i) The Actus Reus of the Subject Offences

(a) The offence related to the construction of a berm, against Timur Leckebusch

[35] The undisputed evidence before me, establishes all of the elements of the actus reus of the offence against the defendant Timur Leckebusch of "undertake a development, to wit: the construction of a berm, without a development permit", contrary to section 24(1) of the N.E.P.D.A., beyond a reasonable doubt. The evidence proves the following facts relative to those elements:

1. that at all material times, Timur Leckebusch was the owner of the western one-half portion of the property municipally known as 9328 15th Sideroad, Halton Hills, Ontario, hereinafter referred to as "the Leckebusch property";

2. that at all material times, the Leckebusch property was located within an area of development control as designated by Ontario Regulation 826, made pursuant to section 22 of the N.E.P.D.A.;

3. that an earthen berm was constructed on the Leckebusch property in a location adjacent to a riding ring for horses, described as the "International Grand Prix Ring", sometime after April 1st, 2009 but prior to December 10th, 2009;

4. that Timur Leckebusch did not apply for a development permits from the Niagara Escarpment Commission, relative to the construction of the berm, until February 12th, 2010;

5. that the Niagara Escarpment Commission issued a development permit for the construction of the said earthen berm on July 9th, 2010.

[36] In reaching my conclusion that the Crown has met its onus of proving the actus reus of the subject offence, beyond a reasonable doubt, I have considered the definition of the noun "development", as stated in The Concise Oxford Dictionary, 8th ed., (Oxford University Press, 1990), in part, as "the act or instance of developing; the process of being developed". The verb "develop" is defined in the said dictionary, in part, as "construct new buildings on (land)" and "convert (land) to a new purpose so as to use its resources more fully". Furthermore, the word "development" is specifically defined in section 1 of the N.E.P.D.A. as including "a change in the use of any land, building or structure".

[37] When I ponder the definitions of the term "development", as set out above, in the context of subsection 24(1) of the N.E.P.D.A. and the said Act in totality, including its stated purpose and the objectives of the Niagara Escarpment Plan, I am of the view that the said term may be broadly interpreted to mean any type of structure constructed or crafted on a parcel of land, or any other work on a parcel of land by which the use of the land is altered.

[38] The subject earthen berm was crafted and constructed to a height of one metre above the existing grade of the Leckebusch property. It was constructed over a 60 metre portion of the said property, located adjacent to the International Grand Prix horse riding ring, and such that it tied in with a much larger berm/visitor viewing area on the east side of the riding ring and a smaller discontinuance berm along the north side of the ring. Based on the description of the earthen berm as set out in exhibit #1, herein, I am satisfied that the said constructed work, which by inference would involve the alteration of the grade of the subject property through the addition of soil above the existing land grade, falls within the definition of the term "development" as contained in the N.E.P.D.A.

[39] Furthermore, in reaching my conclusion that the Crown has met its onus of proving the actus reus of the subject offence, beyond a reasonable doubt, I have considered the meaning of the verb "undertake" as contained in subsection 24(1) of the N.E.P.D.A., in the context of the balance of the subsection. According to The Concise Oxford Dictionary, supra. the verb "undertake" is defined, in part, as "bind oneself to perform, make oneself responsible for, engage in, enter upon (work, an enterprise, a responsibility)".

[40] As stated above, at all material times the defendant Timur Leckebusch was the owner of the Leckebusch property. The earthen berm herein was constructed on the said parcel of land. In light of the definition of the word "undertake" as stated above, I am able to reasonably infer that the defendant Timur Leckebusch was, by law, responsible for the construction of the said earthen berm on the Leckebusch property, by reason of his position as the owner of the subject parcel of land. I therefore find that the Crown has established that some time after April 1st, 2009 but prior to December 10th, 2010, the defendant Timur Leckebusch undertook a development to construct the subject earthen berm on the Leckebusch property, beyond a reasonable doubt.

(b) The offence related to the construction of a retaining wall, against Timur Leckebusch

[41] The undisputed evidence before me establishes all of the elements of the actus reus of the offence against Timur Leckebusch of "undertake a development, to wit: the construction of a retaining wall, without a development permit", contrary to subsection 24(1) of the N.E.P.D.A., beyond a reasonable doubt. The evidence proves the following facts relative to those elements:

1. that at all material times, Timur Leckebusch was the owner of the western one-half portion of the property municipally known as 9328 15th Sideroad, Halton Hills, Ontario, hereinafter referred to as "the Leckebusch property";

2. that at all material times, the Leckebusch property was located within an area of development control as designated by Ontario Regulation 826, made pursuant to section 22 of the N.E.P.D.A.;

3. that sometime between December 10th, 2009 and June 24th, 2010, a retaining wall was constructed on the east side of the earthen berm adjacent to the International Grand Prix Sand Ring (horse riding ring), which was located entirely on the Leckebusch property;

4. that the retaining wall constructed was 1.2 metres in height and was situated over a 55 metre length of property, abutting the east side of the said earthen berm;

5. that as of June 24th, 2010, the Niagara Escarpment Commission had not issued a development permit for the construction of the said retaining wall.

[42] Based upon the interpretation of the term "development" set out above, I am satisfied that the construction of the subject retaining wall on the Leckebusch property, located within an area of development control under the N.E.P.D.A., constituted a "development" within the meaning of that word, considered in the context of the N.E.P.D.A as a whole. The wall is clearly a structure erected on the subject property and therefore falls within the ambit of a development.

[43] Furthermore, based upon the interpretation of the term "undertake", as described above, I am able to draw a reasonable inference that the defendant Timur Leckebusch, being the owner of the Leckebusch property, was, by law, the individual responsible for the construction of the said retaining wall at the said location. Accordingly I find, beyond a reasonable doubt, that Timur Leckebusch undertook the development of the retaining wall on the Leckebusch property at the material time.

(c) The offence related to the construction of an armour stone wall, against 819743 Ontario Inc.

[44] The undisputed evidence before me establishes all of the elements of the offence of "undertake a development, to wit: the construction of an armour stone wall, without a permit", contrary to subsection 24(1) of the N.E.P.D.A., beyond a reasonable doubt. The evidence proves the following facts relative to those elements:

1. that at all material times, 819743 Ontario Inc. was the owner of the eastern one-half portion of the property municipally known as 9328 15th Sideroad, Halton Hills, Ontario, hereinafter referred to as "the 819743 Ontario Inc. property";

2. that at all material times, the 819743 Ontario Inc. property was located within an area of development control as designated by Ontario Regulation 826, made pursuant to section 22 of the N.E.P.D.A.;

3. that sometime between June 24th, 2010 and August 18th, 2010, an armour stone wall was constructed on the 819743 Ontario Inc. property such that it was situated adjacent to the "Grand Prix Sand Ring" (horse riding ring), which ring was located entirely within the boundaries of the 819743 Ontario Inc. property;

4. that the armour stone wall was between 1.5 metres and 2 metres in height;

5. that as of August 18th, 2010, the Niagara Escarpment Commission had not issued development permit for the construction of the said armour stone wall.

[45] Based upon the interpretation of the term "development" set out above, I am satisfied that the construction of the subject armour stone wall on the 819743 Ontario Inc. property, located within an area of development control under the N.E.P.D.A., constituted a "development" within the meaning of that word, considered in the context of the N.E.P.D.A. as a whole. The wall is clearly a structure erected on the subject property and therefore falls within the ambit of a development.

[46] Furthermore, based upon the interpretation of the term "undertake", as described above, I am able to draw a reasonable inference that the defendant 819743 Ontario Inc., being the owner of the 819743 Ontario Inc. property was, by law, the entity responsible for the construction of the said armour stone wall at the said location. Accordingly I find, beyond a reasonable doubt, that 819743 Ontario Inc. undertook the development of the armour stone wall on the 819743 Ontario Inc. property, at the material time.

(ii) The Statutory Exemption to Liability for the Subject Offences

(a) The offences related to the construction of a berm and the construction of a retaining wall, against Timur Leckebusch

[47] In this proceeding, the defendant, Timur Leckebusch submits that he was justified in constructing both the subject earthen berm and the adjacent retaining wall on the Leckebusch property, based upon the statutory and regulatory exemption to liability, contained in subsection 24(1) of the N.E.P.D.A. and section 5, paragraph 9 of Ontario Regulation 828. I must now examine the evidence before me and determine whether or not the said defendant has shown on a balance of probabilities that the said exemption operates in his favour, in accordance with the provisions of subsection 47(3) of the P.O.A.

[48] As stated above, the defendant Timur Leckebusch argues that he was exempt from obtaining a development permit to authorize the construction of both of the subject structures herein, the berm and the retaining wall abutting the berm, under the provisions of section 5, paragraph 9 of Ontario Regulation 828. That provision states that "the construction of a building, structure or facility accessory to general agricultural development, other than a dwelling or pond", are exempt from the requirement of obtaining a development permit, provided that; (i) the area of the lot on which the construction occurred is at least 20 hectares, (ii) the side yard depth of the lot on which the construction occurred is at least 15 metres, (iii) the rear yard depth of the lot on which the construction occurred is at least 15 metres and (iv) the building, structure or facility is at least 90 metres from the centre line of an abutting open public road. The evidence before me establishes on a balance of probabilities, the fact that the specific lot size and set back conditions listed in section 5, paragraph 9 of the said Regulation, in respect of the Leckebusch property, have been met as a condition precedent to the application of the subject exemption.

[49] The remaining sub-issues to be determined are:

1. whether the subject earthen berm and retaining wall structures meet the definitional criteria, set out in Ontario Regulation 828, so as to be classified as structures related to "general agricultural development"; and

2. if the structures fall into the said classification, whether they can be categorized as structures accessory to general agricultural development.

[50] In considering the first sub-issue identified above, I have reviewed the evidence before me to determine whether the defendant Timur Leckebusch has proffered sufficient evidence to allow me to reach the conclusion as submitted by his counsel, that the activities on the Leckebusch property may be characterized as activities related to "animal husbandry". In support of his argument that the preponderance of commercial activity which takes place on the subject property involves animal husbandry, the said defendant's counsel points to paragraph 7 of the agreed statement of facts, entered as exhibit #1 in this proceeding, which states as follows:

Timur Leckebusch operates an equestrian farm and horse show facility from the Leckebusch Property and the 819743 Property [both of which properties are municipally known as 9328 15th Sideroad, Halton Hills, Ontario] through a corporation, Halton Place Horse and Country Limited, in which Timur Leckebusch is the sole officer and director.

[51] Furthermore, in support of his argument that the primary activities on the Leckebusch property and the abutting 819743 Ontario Inc. property relate to horse farm and horse show activities, the defendant's counsel points to the description of the various development permits granted in respect of the said properties, set out in appendix 'A' to exhibit #1, the preponderance of which relate to either the construction of buildings and structures directly associated with a horse farm and stable business or the construction of smaller structures related to the use of the properties for specific horse or equestrian shows or events. In particular, the counsel notes that during the period between September 23rd, 2004 and April 16th, 2009, both dates inclusive, the defendant herein, as represented by Halton Place Horse and Country Limited was granted seven development permits for the subject properties, to permit the set up of a number of temporary structures related to various horse or equestrian events which were scheduled to take place on both the Leckebusch and the 819743 Ontario Inc. properties.

[52] Finally, in support of his legal submission that horse shows on the subject properties fall within the category of activities of animal husbandry, the defendant's counsel cited two decisions of Niagara Escarpment Commission Hearing Officers. The first decision that the counsel cited was the decision of Hearing Officer Knox Henry, dated August 10th, 2007, in the matter of Pemberton v. Niagara Escarpment Commission (unreported). In that decision Mr. Henry was considering an appeal by neighbouring property owners of the decision of the Niagara Escarpment Commission to grant a development permit to host three horse shows and a dog agility trial on the Leckebusch and the 819743 Ontario Inc. properties. In the course if his decision, the Hearing Officer considered the issue of whether the use of the subject properties for horse shows or competitions fell within the scope of animal husbandry or, by definition, animal farming. In that regard, on page 14 of his decision, Hearing Officer Henry made the following comments:

While there is some entertainment value to watching equine competitions, whether they be equestrian hunter and jumper events or draft horse competitions, I accept the submissions of Mr. Johnston, Ms. Krueger and Mr. Broll that these events are clearly within the scope of animal husbandry and/or agricultural use as much of the incentive for the events is to encourage improved bloodlines in the animals. Unlike a country or regional fair, equestrian events do not attract large crowds of onlookers. The majority of the spectators are themselves animal owners or persons desirous of being so.

[53] The second decision cited by the defendant's counsel was the decision of Hearing Officer Dirk VanderBent, dated October 3, 2008, in Darcie v. Niagara Escarpment Commission, [2008] O.E.R.T.D. No. 44 (Ontario Environmental Review Tribunal). This case dealt with an appeal, by neighbouring property owners, of the decision of the Niagara Escarpment Commission to grant Timur Leckebusch and 819743 Ontario Inc. a development permit for six horse shows to take place at 9328 Sideroad #15, Halton Hills, Ontario. In the course of making his decision therein, Hearing Officer VanderBent dealt with the general policy issue of whether horse shows should be classified as "animal husbandry". The Hearing Officer addressed the issue in the context of the issue of whether equestrian events on the Leckebusch and the 819743 Ontario Inc. properties were a permitted use as an agricultural operation, under Use #1 of Part 1.5 of the Niagara Escarpment Plan. In that regard, at paragraph 48 of his decision, the Hearing Officer made the following findings pertaining to the characterization of the equestrian events taking place on the Leckebusch and the 819743 Ontario Inc. properties:

The Hearing Officer finds that each of the Equestrian Events is, despite its scale, still a horse show, and therefore contributes to animal husbandry. Whether the scale of the events, and the other activities associated with them, changes this essential character as an agricultural operation, requires consideration of the objectives of the NEP [Niagara Escarpment Plan], the two Official Plans, and the provincial Policy Statement – 2005. In this regard, the Hearing Officer notes that they all encourage agricultural activities as a matter of planning policy. As such, the Hearing Officer accepts that the development of agricultural operations, including growth in operations, is consistent with this policy. The Hearing Officer finds that the evidence adduced by the Appellant, Other Party, Participants and Presenters does not contradict Ms. Krueger's evidence that the high level of competition and participation at these events may influence a horse's value for sale or breeding purposes, or that a larger number of participants will expand the networking opportunities for informal buying and selling. Consequently, the Hearing Officer finds that a larger scale event, if anything, enhances animal husbandry. Accordingly, the Hearing Officer finds that the scale of these Equestrian Events, in and of itself, does not change their character as an agricultural operation. …

[54] Furthermore, at paragraph 50 of his decision, Hearing Officer VanderBent made the following concluding remarks in respect of the subject issue:

In conclusion, the Hearing Officer finds that the Equestrian Events satisfy the criteria of an agricultural operation under Part 1.5 of the NEP. As a result the Hearing Officer rejects the Applicant's submission that the NEC [Niagara Escarpment Commission] decision is incorrect based on this ground of his appeal.

[55] While I acknowledge that I am not bound by the administrative decisions of Hearing Officers of the Niagara Escarpment Commission, I am persuaded by the reasoning proffered by both Hearing Officer Henry and Hearing Officer VanderBent in the cases referred to above, pertaining to the proper classification of horse shows and equestrian events in the context of the general question of whether horse shows and equestrian events may be properly categorized as activities of "animal husbandry". In particular, I accept the reasoning of Hearing Officer VanderBent, in Darcie v. Niagara Escarpment Commission, supra. where he notes that the large equestrian events proposed to take place on the Leckebusch and 819743 Ontario Inc. properties were, despite their scale, still horse shows and therefore contribute to animal husbandry. He went to state that based on the evidence before him in that hearing, that a larger scale equestrian event, "if anything, enhances animal husbandry".

[56] When I consider the totality of the evidence before me in this matter in the context of the two administrative tribunal decisions cited by the counsel for the defendants, I am of the view that the both the defendant Timur Leckebusch and the defendant 819743 Ontario Inc. have established that the activities of the equestrian farm and horse show facility being operated on both the Leckebusch property and the 819743 Ontario Inc. properties, by Halton Place Horse and Country Limited, constitute "animal husbandry". Accordingly, I find that the defendant has proved, on a balance of probabilities, that any buildings, structures or facilities constructed on the said properties may be properly categorized as "general agricultural development".

[57] I now turn to the second sub-issue related to the operability of the section 5, paragraph 9, Ontario Regulation 828 exemption, in favour of the defendant Timur Leckebusch, being the issue of whether or not the earthen berm and the abutting retaining wall may be categorized as structures accessory to general agricultural development.

[58] In analyzing this sub-issue, I have taken into consideration the statements describing the said structures in the "agreed statement of facts", the contents of appendix "B" of the statement of facts and in particular the analysis prepared by Niagara Escarpment Commission staff pertaining to Timur Leckebusch's application for a development permit pertaining to the construction of the berm, of February 12th, 2010 and the photograph of the berm and the subject retaining wall identified as appendix "C" to the said statement of facts.

[59] Furthermore, in analyzing this sub-issue, I have taken into consideration the passages identified by the counsel for the Crown, in the case Conlin v. Prowse, [1993] O.J. No. 2923 (Ont. Ct. – Gen. Div.) In his decision therein, Wilson J. cited a passage from the decision of Osborne J. in Re Becker Milk Co. Ltd. v. City of London, 44 O.R. (2d) 385, where Mr. Justice Osborne canvassed the definitions of the word "accessory" contained in various dictionaries. In that regard, at page 391 of the Becker v. London decision, the said jurist stated, in part, as follows:

…Webster's Dictionary states that the word 'accessory' used as an adjective means 'aiding or contributing in a secondary way'. As a noun this dictionary describes the word as meaning 'that which contributes subordinately to an effect; an adjunct or accompaniment'. The Oxford Dictionary defines 'accessory' as meaning 'additional or subordinately contributive'. The Standard Dictionary states that as an adjective, 'accessory' means 'aiding the principle design, or assisting subordinately the chief agent; contributory, supplemental, additional; and as a noun, a person or thing that aids subordinately the principal agent; an adjunct; accompaniment'.

[60] When I apply the definitions of the term "accessory" to the evidence before me pertaining to the earthen berm structure, located on the Leckebusch property, as depicted in appendix 'C' to exhibit #1, I am of the view that it is more probable than not that the primary purpose of the berm structure is to assist or contribute to the horse show activities on the property, in a subordinate way. In that regard, on July 9th, 2010, the Niagara Escarpment Commission issued a development permit for the construction of the subject berm, noting that the berm was approved as a noise attenuation and spectator viewing feature related to the west side of the adjacent horse riding ring, and noting that the proposed berm would connect with a much larger berm/visitor viewing area on the east side of the riding ring and with a smaller berm on the north side of the riding ring.

[61] It is noted that in the Development Permit Application Approval Report of May 11th, 2010 relative to the subject earthen berm construction, contained in appendix 'B' to exhibit #1 herein, Niagara Escarpment Commission staff approved the application partially on the basis of their opinion that the berm was "an incidental facility to an agricultural use" that could comply with the Niagara Escarpment Plan "as it would have nominal impact on the Escarpment open landscape and natural environment".

[62] Accordingly, upon weighing the totality of the evidence before me pertaining to the dimensions of subject berm, its location immediately adjacent to the "International Grand Prix" horse riding ring on the property and attached to other such berms on the east and north side of the horse riding ring, as well as its intended purpose as a spectator viewing/noise attenuation feature directly related to the horse show/animal husbandry activities on the property, I find, on the balance of probabilities, that earthen berm structure in question may reasonably be considered a structure which is incidental to and which aids or contributes to the principal use of the property as an equestrian farm and horse show facility. The berm may, therefore, be properly categorized as a structure accessory to general agricultural development.

[63] While I acknowledge that the retaining wall which abuts the earthen berm on the west side of the said horse riding ring on the Leckebusch property is a separate project, the construction of which did not commence until at least December 10th, 2009 after the completion of the berm, it is reasonable to conclude that the retaining wall is so closely connected to the berm and its stated purpose; that the retaining wall and the earthen berm may be considered one development. This conclusion is based on an objective assessment of the evidence, in particular the photograph of the berm and the abutting retaining wall marked as appendix 'C' to exhibit #1.

[64] I am able to take judicial notice of the fact that the purpose of a retaining wall by definition is to support and contain an existing structure comprised primarily of soil or fill. It is clear, in my view, that the subject retaining wall is, by definition, designed and constructed to attempt to ensure the structural integrity of the berm.

[65] In light of my finding in this regard, the subject retaining wall takes on the same characteristics as the earthen berm to which it is attached. The purpose of the wall is to support the berm. The berm, in turn, is designed to enhance and contribute to the primary agricultural use of the Leckebusch property as an equestrian farm and horse show facility, being part of activities relative to animal husbandry. The retaining wall serves no other purpose than that of structural support to the subject earthen berm on the west side of the horse riding ring. It is, therefore, a structure which is clearly subordinate to the berm itself which is, in turn, only incidental to the primary use of the subject land as an equestrian and horse show venue.

[66] In conclusion therefore, for the reasons stated above, I find that the defendant Timur Leckebusch has established, on a balance of probabilities that the subject earthen berm and retaining wall structures located on the Leckebusch property, may be classified as structures accessory to general agricultural development, such that the construction of those structures could be undertaken without first obtaining a development permit from the Niagara Escarpment Commission. The developments in question, located on the Leckebusch property are, therefore, exempt from the requirement of obtaining a development permit under section 5, paragraph 9 of Ontario Regulation 828.

[67] The defendant, Timur Leckebusch has therefore met his onus of proof on a balance of probabilities to show that the statutory and regulatory exemption contained in both the said section and paragraph of Ontario Regulation 828 and subsection 24(1) of the N.E.P.D.A., operate in his favour, in accordance with subsection 47(3) of the P.O.A.

[68] The exemption to Timur Leckebusch's liability for the offences concerning the construction of a berm on his property, without a development permit, and concerning the construction of a retaining wall on his property, without a permit, under subsection 24(1) of the N.E.P.D.A., has been established. The defendant was, therefore, justified in his actions in undertaking the construction of the said structures without a development permit. He is, therefore, entitled to be acquitted of the said offences.

(b) The offence related to the construction of the armour stone wall, against the defendant 819743 Ontario Inc.

[69] As stated above, I have found that the business activities undertaken by Halton Place Horse and Country Limited on both the Leckebusch property and the 819743 Ontario Inc. property, known municipally as 9328 15th Sideroad, Halton Hills, Ontario, are properly classified as animal husbandry. Those activities of animal husbandry, which have been described in exhibit #1 herein, as the operation of an equestrian farm and horse show facility, support a finding that the buildings and structures thereon form part of a class of development defined as "general agricultural development" for the purposes of the application of section 5, paragraph 9 of Ontario Regulation 828.

[70] For the reasons expanded on above, I am of the view that the armour stone wall development located on the 819743 Ontario Inc. property, may be exempt from the requirement of a development permit for the Niagara Escarpment Commission, if the defendant is able to prove, on a balance of probabilities, that the armour stone wall is a structure accessory to general agricultural development, and if the additional lot size, yard set-back and road set-back conditions contained in paragraph 9 of section 5 of Ontario Regulation 828, have been met.

[71] According to paragraph 4 of exhibit #1, the 819743 Ontario Inc. property is at least 20 hectares in area and the property has a side yard depth of at least 15 metres and a rear yard depth of at least 15 metres. Additionally, according to paragraph 22 of the said exhibit, the armour stone wall being the structure in question herein, "is located at least 90 meters from the centre line of an abutting open public road". Based on these pieces of evidence, I am satisfied that the four conditions precedent, stated in paragraph 9 of section 5 of Ontario Regulation 828, have been met for purposes of the operation of the subject regulatory exemption.

[72] The remaining question to be determined, therefore, is whether it has been proved, on a balance of probabilities that the armour stone wall located on the 819743 Ontario Inc. property is, in fact, a structure "accessory to general agricultural development", for purposes of the exemption codified in section 5, paragraph 9 of Ontario Regulation 828. After carefully considering the relevant paragraphs of exhibit #1 herein and the photograph of the subject wall, entered into evidence in this proceeding as appendix 'D' to exhibit #1, I am of the view that the evidence relative to this particular structure is insufficient to permit me to find that it is more probable than not that the armour stone wall was an accessory structure to general agricultural development.

[73] In reaching this conclusion, I note that according to paragraphs 20 and 21 of exhibit #1, the armour stone wall was constructed adjacent to the "Grand Prix Sand Ring" a horse riding ring located on the 819743 Ontario Inc. property, and that the wall was between 1.5 and 2 metres in height. Furthermore, upon perusing the photograph of the subject wall entered into evidence as appendix 'D' to exhibit #1, I note that the wall appears to abut a portion of what appears to be a horse riding ring, with white wooden rails located either on top of the armour stone wall or on top of what appears to be a berm running behind the face of the subject wall.

[74] There is no evidence before me pertaining to the distance between the armour stone wall and the "Grand Prix Sand Ring" and pertaining to the specific length of the wall. There is no evidence before me as to the purpose of the armour stone wall from the perspective of the defendant 819743 Ontario Inc. The photograph before me (appendix 'D') lacks detail as it is apparently taken from a significant distance from the location of the armour stone wall in question.

[75] In summary therefore, the evidence before me in respect of the circumstances of the construction and purpose of the armour stone wall located on the 819743 Ontario Inc. property is both sparse and imprecise.

[76] In his submissions in respect of the armour stone wall charge, the counsel for 819743 Ontario Inc. argues that in light of the location of the wall "adjacent to the Grand Prix Sand Ring", the wall is accessory to the horse riding activities on the subject property and the said riding ring itself. In that regard, the counsel stated as follows:

…And my submission is that the armour stone [wall] is accessory to this riding because there is no other possible use for this. It's incidental to the riding ring. It lines the side of the ring. It's not an armour stone that's just built in the middle of a field for no practical purpose or use. The only use that it could have would be to the principal use of the horse shows, the riding rings. It serves no other purpose, it has no other value. …

[77] In considering this submission, I am of the view that the defendant corporation has not presented sufficient evidence to the court to prove that the subject wall "lines the side of the riding ring". The only evidence before me is that the wall is constructed "adjacent" to the Grand Prix Sand Ring, but there is no evidence before me as to how close the wall is to the riding ring. Furthermore, the photograph before me fails to adequately show the precise location of the said horse riding ring.

[78] The burden of proof rests on the defendant corporation to establish on a balance of probabilities that the exemption to the development permit requirement contained in section 5, paragraph 9 of the Regulation, operates in its favour. I must remind myself that I cannot engage in an exercise of speculation as to the crucial issue of whether the subject armour stone wall constitutes a structure accessory to general agricultural development relative to the 819743 Ontario Inc. property. While I understand that I have a duty to consider the circumstantial evidence before me and therefore determine whether I am able to draw any reasonable inferences from the evidence as to the use of subject armour stone wall, I find that the only reasonable inference that I am able to draw from the totality of the evidence before me, relative to the subject structure, is that it is a wall which was constructed near the area of a riding ring on the property for aesthetic purposes only.

[79] The evidence before me does not lead me, logically, to the conclusion that the armour stone wall was erected for any purpose incidental to or subordinately contributive to the use of the 819743 Ontario Inc. property for matters related to animal husbandry. The defendant corporation has failed to establish on a balance of probabilities that the armour stone wall located on its property, is a structure accessory to general agricultural development. The subject structure does not fall within the class of development which is exempt from the requirement of obtaining a development permit from the Niagara Escarpment Commission.

[80] The defendant 819743 Ontario Inc. has failed to prove, on a balance of probabilities, that the statutory and regulatory exemption to liability contained in section 5, paragraph 9, of Ontario Regulation No. 828, operates in its favour, in accordance with subsection 47(3) of the P.O.A. The defendant was not therefore justified in undertaking a development, to wit: the construction of an armour stone wall on its property, sometime between June 24th, 2010 and August 18th, 2010.

THE DECISION

[81] Firstly, the Crown has succeeded in proving the actus reus of the offence against the defendant Timur Leckebusch, that he between the 11th day of August, 2008 and the 10th day of December, 2009, at 9328 Sideroad 15, Town of Halton Hills, Regional Municipality of Halton, Ontario, did commit the offence of unlawfully, in an area of Development Control, undertake a development, to wit: the construction of a berm, without a development permit, contrary to section 24(1) of the N.E.P.D.A., to the standard of proof beyond a reasonable doubt.

[82] The defendant Timur Leckebusch has succeeded in establishing, on a balance of probabilities, that the statutory and regulatory exemptions contained in subsection 24(1) of the N.E.P.D.A. and in section 5, paragraph 9 of Ontario Regulation 828, operate in his favour. He was therefore justified in undertaking the subject development, without a development permit, and he is therefore found not guilty of the said charge.

[83] Secondly, the Crown has succeeded in proving the actus reus of the offence against the defendant Timur Leckebusch that he, between the 10th day of December, 2009 and the 24th day of June, 2010, at 9328 15th Sideroad, Town of Halton Hills, in the Regional Municipality of Halton, did unlawfully, in an area of Development Control, undertake a development, to wit: the construction of a retaining wall, without a development permit, contrary to section 24(1) of the N.E.P.D.A., to the standard of proof beyond a reasonable doubt.

[84] The defendant Timur Leckebusch has succeeded in establishing, on a balance of probabilities, that the statutory and regulatory exemptions contained in subsection 24(1) of the N.E.P.D.A. and in section 5, paragraph 9 of Ontario Regulation 828, operate in his favour. He was therefore justified in undertaking the subject development, without a development permit, and he is therefore found not guilty of the said charge.

[85] Thirdly, the Crown has succeeded in proving the actus reus of the offence against the defendant 819743 Ontario Inc. that it between the 1st day of January 2009 and the 18th day of August 2010, at 9328 15th Sideroad, Town of Halton Hills, in the Regional Municipality of Halton, did unlawfully, in an area of Development Control, undertake a development, to wit: the construction of an armour stone wall, without a permit, contrary to section 24(1) of the N.E.P.D.A., to the standard of proof beyond a reasonable doubt.

[86] The defendant 819743 Ontario Inc. has failed to establish, on a balance of probabilities that the statutory and regulatory exemptions contained in subsection 24(1) of the N.E.P.D.A. and in section 5, paragraph 9 of Ontario Regulation 828, operate in its favour. 819743 Ontario Inc. is therefore found guilty of the said charge and a conviction against it is registered.

Released: May 15, 2012

Signed: "Justice of the Peace Kenneth W. Dechert"