SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV5495-12
DATE: November 21, 2012

RE: THE CORPORATION OF THE MUNICIPALITY OF EAST FERRIS, Applicant

AND:

STEWART MILLAR, NANCY MILLAR and NEIL JONES CONSTRUCTION INC., Respondents

BEFORE: The Honourable Mr. Justice Paul U. Rivard

COUNSEL:
Al Burton, for the Applicant
Selves, for the Respondents

HEARD: November 16, 2012

E N D O R S E M E N T

[ 1 ] Stewart Millar and Nancy Millar own lands described as part lot 27, concession 5, being part 1, 2 and 3, reference plan 36R-12909, in the Municipality of East Ferris. These lands are adjacent to Lake Nosbonsing Road, a major roadway in and out of the village of Astorville.

[ 2 ] From approximately 1915, Canadian National Railway maintained rail tracks through these lands. In the 1940’s, soil was transported onto the lands and a railway trestle was constructed on either side of the road. It is Mr. Millar’s evidence that for more than 80 years, there were two driveways which provided access to his lands; one on the Northeast side and one on the property southwest of the trestle.

[ 3 ] In 1996, Canadian National Railway abandoned its rail line.

[ 4 ] In 2007, Mr. & Mrs. Millar purchased from Canadian National Railway lands on the opposite side of the road where the railway trestle has been erected in part. Mr. and Mrs. Millar then applied to the Municipality of East Ferris to sever the lands but their application was denied. There is some evidence before the court that Mr. Millar had been an unsuccessful candidate in the election for the municipality’s council and this, according to the respondent Neil Jones, “did not sit well with the Municipal council”.

[ 5 ] Mr. & Mrs. Millar appealed to the Ontario Municipal Board and the appeal was resolved. The Minutes of Settlement reflected the agreement of the Millars with the Municipality that the Millars would not be required to rezone this property to remove “rail bed material (composed of ballast, sand, rocks, boulders and possibly other material not known at this time)”.

[ 6 ] It is common ground on this Application that the respondents’ lands are zoned Agricultural by the Municipality’s Zoning By-law 1284, passed on October 9, 1979. Section 6 of Zoning By-law 1284 lists the uses permitted in the Agricultural zone. Neither extractive nor a commercial use are permitted uses.

[ 7 ] In approximately 2011, Mr. and Mrs. Millar retained the services of Neil Jones Construction Inc. to remove the man-made pile of fill which had been part of the former bridge abutment for the Canadian National Railway trestle on the property. This work was to be carried out on the lands originally owned by the Millars and not on the lands they purchased in 2007. I also note that the agreement of the parties reflected in the Minutes of Settlement which resolved the appeal to the Ontario Municipal Board had expired by 2011.

[ 8 ] It was Mr. & Mrs. Millar’s intention to remove the mound caused by the construction of the rail trestle on their property and to restore their lands to a “flat lot” so they could “do something with it as per the existing by-law” as stated by Mr. Jones in his affidavit.

[ 9 ] Neil Jones Construction Inc. then entered upon the Millar lands and began removing materials. The existing entrance from the public road to the Millar lands was used to carry out the work.

[ 10 ] In the summer of 2011, John B. Fior, the Chief Administrative Officer, Clerk and Director of Planning and Development for the Municipality of East Ferris, was driving on Lake Nosbonsing Road approaching the Millar lands when he “almost collided with a truck that was perpendicular to the direction of travel on the road and was backing into the Subject Lands.”

[ 11 ] Following this incident, Mr. Fior instructed Antoine Boucher, the Municipality’s engineer to contact Mr. Millar and to advise him that the “extractive use” of these lands would have to stop “unless and until the property was rezoned and an appropriate entrance design arrived at”.

[ 12 ] The removal of the materials from the Millar property did not stop in spite of additional notices from the Municipality to cease the work.

[ 13 ] It is alleged on this Application that during the summer and fall of 2011 “numerous complaints from members of the public and members of Municipal Council” regarding the danger posed to motorists on Lake Nosbonsing Road by these activities were received. No details of these complaints are provided. Without evidence identifying who made such complaints, I am not prepared to consider that evidence.

[ 14 ] The “extraction activities” from the Millar lands continued into the summer and fall of 2012.

[ 15 ] The Municipality then commenced these proceedings to restrain the respondents from removing fill and materials from the subject lands and to restore the grading of the lands.

[ 16 ] Counsel for the Municipality concedes in his submissions that the primary concern here is for the safety of the public using Lake Nosbonsing Road. It appears that if the respondents had applied for and obtained “an access permit” which would address the safety concerns, this matter would not be before the Court.

[ 17 ] Mr. Millar concedes he did not apply for such an access permit. He explains his failure to do so by stating there was little sense in such an application because this municipal council would oppose any requests emanating from him. He and Mr. Jones also submit there are no safety concerns.

[ 18 ] There are a number of matters in dispute which I cannot resolve on this application. These include:

(a) Whether it was contemplated by the parties that the Millars would be carrying out the removal of this material from their lands in spite of the zoning;

(b) whether the access being used to remove the material existed before the zoning by-law was passed, thereby permitting its continued use;

(c) whether the removal of the materials from the Millar lands presents a danger to motorists using Lake Nosbonsing Road;

(d) whether “the angle of repose” on the mound of earth presents a danger and needs to be restored;

(e) whether the Municipality’s actions are legitimate attempts to protect the public or whether they are meant to harass the Millars.

[ 19 ] These matters would have to be resolved after evidence is called at a trial and a proper assessment of the reliability and credibility of the witnesses called is made.

[ 20 ] I am not persuaded, at this stage, that the parties should be put to the expense of further legal proceedings. It appears to me that if the respondents apply to the Municipality for an access permit, and if that request is dealt with by the Municipality in good faith, an agreement can be reached which will allow the Millars to restore their lot while addressing the safety concerns, if any, of motorists on Lake Nosbonsing Road. This might be achieved by the use of signage, flagmen, alternate access, or other methods outlined in a negotiated access permit which may then also resolve the balance of the issues in this litigation.

[ 21 ] It is therefore ordered that the respondents be restrained from excavating, extracting and/or removing fill or other materials from the Subject lands until March 31, 2013. Mr. Millar shall immediately cause an application for an access permit to be made to the Municipality. That application is to be received and given good faith consideration; negotiations if necessary shall take place relating to the issuance of this access permit. If no access permit is issued to permit the respondents to continue with the removal of the material, either party will be at liberty to apply to this Court to have this matter returned before me for further directions.

November 21, 2012
The Honourable Mr. Justice Paul U. Rivard