Court File and Parties
Date: September 23, 2019
Court File: 18-2137-90 and 18-2138-90
Ontario Court of Justice At Orangeville
Between:
Shona Lawlor and Anthony Todd Pasco Appellants
and
The Township of Mulmur Respondent
Counsel: Colleen McKeown, counsel for Appellants Greg Burd, licenced paralegal for Respondent
Heard: September 6th, 2019
On appeal from the conviction entered on October 17th, 2018, by Justice of the Peace L. Ritchie of the Provincial Offences Court.
Justice B. E. Pugsley:
Decision
Background
The defendants own a rural property in the Township of Mulmur in the County of Dufferin. A structure is present on the property which is not permitted by the planning bylaw (Mulmur bylaw number 5-2002) of the Township. The Respondent discovered the structure and brought the non-compliance to the attention of the Appellants. Discussions ensued but no resolution was reached. The Appellants were charged under Section 2.5 of the bylaw that they did not comply with the bylaw by using the improper cabin on their land.
The matter came on for trial in the Provincial Offences Court on September 13th, 2018. The Respondent's bylaw enforcement officer was the sole witness. After considering the submissions made on behalf of both parties the Learned Justice of the Peace convicted both Appellants on October 17th, 2018 and imposed a fine of $1,000.00 each.
Issue on Appeal
The Appellants appeal on a narrow issue: did the presiding Justice of the Peace correctly find that the prosecution had established that the structure on their property was "used" by the Appellants?
The Appellants submit that there was no evidence that the Appellants in any way "used" the property on the date alleged in the information: December 6th, 2017. The bylaw enforcement officer agreed that he never saw the Appellants at the property on that date but described and photographed what he saw when he viewed the property both on that date and earlier.
The Respondent submits that the definition of "use" applicable here (defined by section 5.148 of the Respondent's planning bylaw) is far broader than the Appellant contends, and that the court properly applied the defined term in the decision complained of here.
I agree with the Respondent.
Analysis
The Appellants' Argument
The Appellants argued here and below that when the Respondent framed the charges against the Appellants they could have set out a time frame period had they chosen to do so but instead stipulated that the Appellants "used" the property on December 6th, 2017. They are bound by the four corners of the offence they themselves alleged. There was no evidence that either Appellant was at the property on December 6th, 2017, and therefore the charge is bound to fail.
The Appellants submit that the word "use" can be a noun or a verb and that how the word "use" is applied in the offence section of the bylaw (section 2.5) is different than how it is applied in the definition section of the bylaw (section 5.148). As a matter of statutory interpretation the entire Act must be read to determine what the proper meaning of the words used in the Act individually.
In other words, the meaning of the word "use" in the bylaw must be the common meaning of that word – that on the date in question the prosecution must prove that the Appellants were at the cabin and were then, that day and that day only, using it.
I can give no effect to this submission.
The Proper Interpretation of "Use"
The issue before the court below was the use to which the Appellants' land was being put. Municipalities are entitled by provincial law to regulate the uses to which a land owner may put her or his or its property. The reason for this is trite: industrial or commercial or residential or rural properties may be regulated so that they coexist in a municipality in a harmonious way to the benefit of the citizenry.
The common or usual or normal meaning of a word may be the subject of interpretation by a court in some situations, but here the court below was correct to default to a meaning of the word expressly stipulated in the law itself. In the face of such a definition the room for interpretation by the court is greatly constrained and usually limited to situations where the intended meaning is unclear and a court needs to fill in the blanks to clarify. Such is not the case here.
Here the Appellants agree that they owned the land and do not contest that there was a building on that land that was constructed without compliance. The issue is whether the Respondent proved at the trial that they used it.
The bylaw sets out the following definition of the word "use" at Section 5.148:
5.148 Use
(a) Any purpose for which a building or other structure or a parcel of land may be designed, arranged, intended, maintained or occupied; or,
(b) Any activity, occupation, business or operation carried on, or intended to be carried on, in a building, or other structure or on a parcel of land.
"Use" can have many meanings most importantly including that set out in the Respondent's bylaw. In particular, and appropriately on the facts here, "use" can mean "land use" – that is the purpose for which land may be used or enjoyed. To find otherwise would make no sense: land use is regulated intensely by governments. An individual can "use" their home in the sense of occupying it, living in it, and the like, but the land "use" of the home is still "residential" and liable to be regulated as such.
The cabin here was plainly intended to be used as a cabin: there was ample evidence of its occupancy from time to time. The framing of the information to stipulate a specific date did not require the Respondent to find the Appellants actually using the property on such a date. It is the general use to which the property was or could be put to that offended the bylaw, not its use on a specific date. That is the context of the word here and was properly found to be so by Her Worship. To find otherwise would be contrary to the purpose of the bylaw itself and contrary to the plain reading of the definition set out in the statute.
Conclusion
- The court below properly considered the law and applied the evidence to that law. The cabin was clearly a structure that was an incompatible use under the bylaw on December 6th, 2017, and on other dates as well. The Appellants owned the land on which the cabin stood and were bound by the bylaw to comply with the law in the land use stipulated therein. The Appeal here must fail.
Additional Observations
I make one further observation.
During the trial the Respondent attempted to lead narrative evidence as to what the bylaw enforcement officer had seen on dates other than December 6th, 2017. The Appellant's trial counsel objected (more than once) that the witness's evidence of the state of the cabin on any date other than December 6th, 2017 was impermissible as irrelevant. The trial court essentially sustained this objection albeit with little opposition by the Respondent's agent at trial.
Although this does not bear on the outcome of the appeal, I must observe that the evidence that the Respondent was attempting to lead was entirely relevant and important to the Respondent's evidence on the defined "use" of the lands that stood at the heart of the case, and the Respondent ought to have been permitted to continue with that evidence subject if necessary to submissions later as to the weight to be given to the evidence. One answer given by the witness that was objected to was that he had been past the cabin on an earlier date and had seen obvious evidence of occupation: a vehicle parked there and smoke from a wood fire coming out of the chimney.
Even if the court believed that the Respondent was tied by the time frame of the information to a violation on a specific date, to block the Respondent's evidence before it was lead precluded the Respondent from seeking to amend the information at the conclusion of its case to conform to the evidence by expanding the time frame of the information, an amendment virtually certain to have been allowed at law.
Order
- The appeals are dismissed.
B. E. Pugsley, Justice OCJ