ONTARIO COURT OF JUSTICE

CITATION: Niagara (Regional Municipality) v. Bereti, 2018 ONCJ 672

DATE: September 28, 2018

Court Files: 170910, 170911, 170912

R. v. Bob Bereti

Between

Her Majesty the Queen and

Bob Bereti

S. Lancaster J.P.

Ex-Parte Trial: June 19 2018

Judgement: September 28, 2018

Permit Accessory Structure and Construct a Septic System without Permits and Fail to Comply with a Court Order

Building Code Act, s.36(1)(b)(c) and Township of Wainfleet By-Law 034-2014

Mr. Harasym …………..................................................... for the Prosecution

Mr. Bob Bereti ……………………………………….… Defendant, not present

Reasons for Judgement

I. INTRODUCTION:

[I] S. LANCASTER J.P.: Mr. Bob Bereti was charged on December 4, 2017 with two counts under the Building Code Act, s.36(1)(b) & (c), and one count under s.4.21(a) of the Township of Wainfleet Zoning By-law 034-2014, contrary to the Planning Act, s.67(1). This court granted an amendment to Information 170911 pursuant to s.34(4) of the Provincial Offences Act in relation to the statutory foundation for municipal By-laws, to wit the Planning Act. The court concluded that Mr. Bereti would not have been misled or prejudiced by this amendment or that the amendment would lead to an injustice as his defence to the charge would not have be impacted. The defendant had been represented by legal counsel who, upon counsel’s motion, was recently removed from the record. Mr. Bereti’s trial proceeded on an ex-parte basis as he failed to appear for his trial, despite being made aware of his trial date by both his former counsel and the prosecution. As the evidence will show, Mr. Bereti would have been aware of what was required of him in terms of his property’s compliance requirements and he had the benefit of a Judicial Pre-trial. This matter returns today for judgement.

II. PROSECUTION’S EVIDENCE:

The court has heard from 3 prosecution witnesses

Sarah Ivins:

[2] The court heard from Sarah Ivins, Planner with the Wainfleet Township, who testified that she met with Mr. Bereti along with the Township’s By-law Enforcement Officer and the Chief Building Official (CBO), following a complaint received by the municipality in August 2017 regarding the placement of a shed on Mr. Bereti’s property. Exhibit 2 is a certified copy of Service Ontario’s Land Registry that shows Bob Bereti as the owner of property Plan 17, Lot 75 to 79, NP744, a vacant lot on Hock Road in the Township of Wainfleet, the subject property.

[3] Ms. Ivins spoke to By-law No. 034-2014 (Exh.3), and specifically “Accessory Buildings”, per s.4.21(a) and “Structure”, per s.3.0. Ms. Ivins defined “Building” as “fixed permanently to the ground”, “means a structure having a roof supported by columns or walls or supported directly on the foundation …” (see par.16 below – The Law).

[4] She noted that the property is zoned “Residential Lakeshore”, with permitted uses referred to in the By-law (Exh.3, page 71 -Table 9). To her knowledge, Mr. Bereti’s property was not being used in accordance with Table 9, and that building and situating a structure, specifically a shed, on this property requires a Building Permit and that no Permit was issued to Mr. Bereti for this purpose.

[5] Ms. Ivins noted that an Accessory Building / Shed is only permitted when the owner is in the process of constructing a dwelling, and that in Mr. Bereti’s case as there was no dwelling construction. The shed is not permitted and Mr. Bereti was notified of this when he attended the CBO’s office. To date, no Building Permit has been issued to Mr. Bereti and that the subject shed remained in place.

Randy De Guire:

[6] The court heard from Randy De Guire, the Township’s Chief Building Official (CBO). He testified that Bob Bereti’s ownership of the Hock Road, Wainfleet property was confirmed through a title search. He first became aware of the property through By-law Officer Mark Tardif’s property inspection in November, 2017. He attended the property and observed the defendant present along with a backhoe equipment operator and septic pipes laid out on the ground. Mr. Bereti noted that he was “trying to drain his property” and when he was advised of the potential By-law violations he dismissed the advice and would not answer further questions. Mr. Bereti indicated that he has a Permit from several years ago, although he could not produce it.

[7] Photos were taken by Mr. Tardif (Exh.6) showing the septic pipes in full view with pipe drainage holes. The backhoe was observed moving granular material around the yard. He again attended the property on December 8, 2017 observing the installation of septic pipes and gravel. The Building Code Act states that a septic system installation requires a Building Permit. No such Permit had been applied for or issued, and all Permit applications go to Mr. De Guire as CBO.

[8] He had met with Mr. Bereti along with Ms. Ivins on November 16, 2017 during which time the Building Permit requirements were discussed. Mr. Bereti’s comments suggested that he had a different view on the requirements. Exhibit 7 was tendered, a letter from Mr. De Guire to the defendant dated January 8, 2018 in relation to a post offence date Permit application for a “… new Class 4 septic system for a future single detached dwelling” on the subject property. The letter advised that the application was deficient, outlining the issues to be addressed before a Permit could be issued, and a reminder “… that no construction can take place until a Permit has been issued”. As the deficiencies had not been addressed, no Permit was been issued, and Mr. De Guire has had no further contact with Mr. Bereti.

Mark Tardif:

[9] The court heard from Mark Tardif who is the Wainfleet By-law Officer / Property Standards Officer. His duties involve all Township By-laws and septic system inspections. When hired on in 2016 he reviewed the “complaint file”, noting Mr. Bereti’s file. He inspected Mr. Bereti’s property on September 15, 2016 and November 16, 2016 concluding “certain violations of the municipality’s Property Standards By-law 059-2000”, Ordering that the violations that were set out in Appendix “A” of the Order be remedied with a compliance date of December 16, 2016. The letter outlines an Appeal option within 14 days, although Mr. Bereti did not initiate Appeal proceedings and the property remained non-compliant.

[10] The violations related to the onsite presence of: 3 un-plated trailers, piles of gravel (noted as unsightly objects, per s.2.27.1 of the Property Standards By-law), old building materials, septic system pipes and a septic tank in the ground. Officer Tardif attended the property in early January, 2017 in relation to other charges for which Mr. Bereti was subsequently convicted on October 4, 2017 and Ordered to bring the property into compliance.

[11] During the spring and summer 2017, the property was an ongoing enforcement issue and a neighbour complaint was received concerning a shed on the property. Mr. Tardif attended the property on August 14, 2017 observing Mr. Bereti “watching the worker move the blue shed into place” too close to the property line along with septic pipes being placed on the ground (Exh.10 Inspection Notes & Exh.11 photos). This shed is not permitted on the property without a dwelling as it falls under “Accessory Building or structure” per s.3.0 of By-law No. 034-2014. The observed “brown shed” was deemed “legal non-conforming status” as there was no evidence of an installation date, and it was not the subject of a charge. On August 15, 2017 an “Order of Non-Compliance” was issued (Exh.12) to Mr. Bereti in relation to the “blue shed”, both in terms of its existence and location per By-law No. 034-2014 requiring its removal by September 8, 2017.

[12] Officer Tardif attended the property on October 13, 2017 observing that the blue shed had been relocated but remained on the property (Exh.16). He spoke with Mr. Bereti who told him to “get off his property”. Re-attending on October 16, 2017 following a further complaint, Officer Tardif observed septic pipes laid out on the ground (Exh.21) and the blue shed, returning again on October 18, 2017 observing the septic pipes fully connected, soil / gravel piles and miscellaneous refuse (Exh.23) issuing an Order of Non-Compliance - Final Notice” with a compliance date of November 8, 2017 (Exh.18).

[13] Attending with Randy De Guire (CBO), on November 7, 2017 he observed some connected septic pipes in the process of being buried, along with the blue shed and a boat on an un-plated trailer noted for sale (Exh.6). On the December 4, 2017, the offence date, Officer Tardif observed the same blue shed, boat, trailer, and the septic pipes partially covered by gravel, a septic tank and a worker, “Tony”, operating a tractor to cover the septic pipes (Exh.17).

[14] While Mr. Bereti suggested the pipes were being installed to address a property drainage problem, Officer Tardif, a septic system inspector, noted that the pipe holes observed per Exh.6, are typically used in shallow buried trenches to distribute / percolate effluent, and not to drain or draw ground water away from an area, in the case of a drainage problem as suggested by Mr. Bereti. While the pipes had not been connected to the septic tank on the December 4, 2017 offence date, they were connected on December 15, 2017 during the municipal cleanup and the pipes had been completely covered with stone.

[15] Following Mr. Bereti’s conviction on October 4, 2017 on earlier charges, Justice of the Peace Chernish issued an Order (Exh.1), per s.36(7) of the Building Code Act to Mr. Bereti noting that the “continuation or repetition of the offence of failing to comply with an Order to Remedy dated November 17, 2016 (Exh.8) is prohibited. The Court Order requires Mr. Bereti to bring his property into compliance, per Property Standards By-law No. 059-2000. Given the evidence, Mr. Bereti has failed to do so thereby violating the Court Order.

[16] The Law:

Building Code Act, 1992, S.O. 1992, c.23. – The charging section

S.36(1) – A person is guilty of an offence if the person,

(b) fails to comply with an order, direction or other requirement made under this Act;

(c) contravenes this Act, the regulations or a by-law passed under section 7. 1992, c.23, s.36(1); 1997, c30, Sched. B, s.19; 2002, c.9, s.53(1); 2009, c.33, Sched. 21, s.2(8)

Planning Act R.S.O 1990, Chapter P.13

Part V – Land Use Controls and Related Administration

Zoning by-laws

34 (1) Zoning by-laws may be passed by the councils of local municipalities:

Part VII – General - Penalty

67 (1) Every person who contravenes section 41, section 46, subsection 49 (4) or section 52 or who contravenes a by-law passed under section 34 or 38 or an order made under section 47 and, if the person is a corporation, every director or officer of the corporation who knowingly concurs in the contravention, is guilty of an offence and on conviction is liable,

(a) on a first conviction to a fine of not more than $25,000; and

(b) on a subsequent conviction to a fine of not more than $10,000 for each day or part thereof upon which the contravention has continued after the day on which the person was first convicted. 1994, c. 2, s. 48.

The Corporation of The Township of Wainfleet, Property Standards By-law,

No. 059-2000

S.2.27.1 “In this section “unsightly object” shall mean and include any of the following: used lumber, used building materials, rubble, trash, brush, discarded furniture, disused household equipment and appliances, ashes, waste paper and inoperative or derelict motor vehicles, truck and trailers; disused machinery, machinery parts and automotive parts and any other rubbish, objects or condition which might constitute a health or accident hazard”

S.2.27.1 “No unsightly object shall be stored or maintained outside in any front, side or rear yard”.

The Corporation of The Township of Wainfleet, By-law No. 034-2014

S.3.0 Definitions:

Accessory Building or Structure

a) Means a building or structure naturally and normally incidental to, subordinate to or exclusively devoted to a principal use or building and located on the same lot as the principal building or use, and

b) Includes a detached private garage, a detached car port, secondary suite or garden suite.

Building:

Means a structure having a roof supported by columns or walls or supported directly on the foundation and used or intended for use as a shelter or accommodation for persons or animals or goods and does not include any vehicle as defined herein.

Structure:

Means anything that is erected, built or constructed of parts joined together and attached or fixed permanently to the ground or any other structure but a structure shall not include a light standard, sign or a fence.

S.4.21 Accessory Buildings:

a) No accessory building shall be erected prior to the erection of the permitted dwelling or principal building on the same lot except where it is necessary for the storage of tools and materials for use in connection with the construction of such dwelling or building and no accessory building shall be used prior to the erection of such dwelling or building for any purpose other than such storage.

S.7.0 Residential Zones

S.7.1 Permitted Uses

Table 9: Permitted Uses in the Residential Zones (see Exhibit 3, page 71)

III FINDINGS:

[17] I find that the prosecution’s 3 municipal employee witnesses provided detailed, consistent and persuasive evidence regarding their interactions with Mr. Bereti. They clearly outlined what was required of him to bring his property into compliance, and with the Court Order flowing from a previous conviction for similar offences regarding the same property, Mr. Bereti should have been under no misapprehension as to what was required of him. No required permits were obtained. At his own peril, Mr. Bereti ignored the attempts by the Wainfleet Township and the October 4, 2017 Court Order to bring his property into compliance. The public complaints, the compliance investigation over a number of months, the witness testimony and documentary evidence, including photographs provide a strong case for the prosecution. The evidence (including Exhibit photos: 17, 21 & 23) shows that Mr. Bereti has taken no steps to clean up his property of the “unsightly objects”, debris, gravel piles, septic pipes and tank, camper truck, and un-plated vehicle, boat and trailer as he was required to do so.

[18] The November 17, 2016 municipal “ORDER TO REMEDY” (Exh.8) outlines that the failure to remedy the violations may lead to legal or corrective action, e.g., clean up, at the owner’s expense. I will note that the “FINAL DATE FOR APPEAL” references “December 7, 2014”, that predates the ORDER TO REMEDY. Notwithstanding this due date error, the Appeal option prescribes that the “NOTICE OF APPEAL” be received within “fourteen (14) days after service of the order…” so I believe the requirements are clear, and no Appeal action was taken by Mr. Bereti in relation to this Order. The property was cleaned up by the Township in November and December, 2017, at a cost of $4000.

IV JUDGEMENT:

[19] The prosecution has made out the actus reus of the offence on all 3 counts. In the absence of the defendant, the court has heard no defence evidence of any due diligence efforts given this strict liability offence (and no efforts were evident), or defence evidence of mistake of fact or officially induced error. I found the prosecution’s evidence to be clear and persuasive in terms of the presence of the shed (an accessory building), a septic system without the required Building Permits, the “unsightly objects” and Mr. Bereti’s failure to act despite several site visits, enforcement inspections, and meetings with the defendant, written notices and the municipal and Court Orders to comply. I find Mr. Bereti guilty, beyond a reasonable doubt, on all three charges, and a conviction will be registered on all three counts.