ONTARIO
SUPERIOR COURT OF JUSTICE
2014 ONSC 4096
COURT FILE NO.: 5575/13AP
DATE: 20140714
B E T W E E N:
SANDRA PENZIWOL
Robert A. Dinnen, for the Appellant
Appellant
- and -
TOWN OF ENGLEHART and CLAYTON SEYMOUR
David Bennett, for the Respondents
Respondents
HEARD: June 6, 2014
D E C I S I O N
WILCOX, J.
[1] Sandra Penziwol owns property at 25 Sixth Avenue, Englehart, Ontario where she resides with her husband, Marcel St. George. Clayton Seymour is, I can only infer, an official in the building department of the Town of Englehart. In May 2013, Penziwol and St. George tore down a shed attached to the back of their garage, to be replaced by a structure large enough to store their boat. By May 27, 2013, St. George had the framing up when an inspector came by and said that everything looked good, but that he needed to get a permit at the Town Hall. The Appellant attended at the Town Hall on May 28, 2013 and applied for the permit as well as a demolition permit that, she was told, she also needed. When she went to pick up the permits the next day, only the demolition one was there. Staff indicated that a wall was too close to the lot line for her to get a building permit, and had to be changed. The Appellant advised that that could not be done because the structure was up, and was then told that she would likely have to pay a fine. She and St. George decided that it was easier to pay a fine than move a wall at that stage, and continued building. They never got a written response to the application for the building permit.
[2] On June 17, 2013, an inspector told St. George to tear the structure down. The Appellant wrote the next day to the mayor and council seeking a minor variance. A meeting for that was held on June 25th and a letter of that date from the Town stated that there were a number of things wrong with the structure. A minor variance was denied.
[3] The Respondent Seymour issued an Order to Comply dated August 1, 2013, requiring the structure to be removed as a permit would not be issued because of non-compliance with the zoning bylaws.
[4] A charge was laid against the Appellant under the Provincial Offences Act for failure to comply with the Order to Comply. This was around August 8, 2013, before the time for appealing the Order to Comply had expired. The Appellant was summonsed to the September 19, 2013 Provincial Offences Act court by a summons dated August 9, 2013.
[5] The Appellant’s Notice of Appeal of Seymour’s August 1, 2013 Order to Comply is dated August 15 and was returnable August 30, 2013. On that date, this court ordered that:
- the order of Clayton Seymour dated August 1, 2013 is stayed until the disposition of the appeal; 2) the parties shall exchange affidavits by September 15, 2013; 3) the parties shall complete cross-examinations on the affidavits by September 30, 2013, or as soon thereafter as is possible; and 4) the matter be adjourned to Motions Court on December 13, 2013 to be spoken to.
[6] The facts up to this point are from the affidavits of the Appellant and Marcel St. George dated September 12, 2013, and from copies of the Order and Summons referred to as well as the court’s August 30, 2013 endorsement.
[7] There are further affidavits, of the Appellant dated October 16, 2013 and of Brenda McKinnon, dated November 5, 2013. According to these, the Order to Comply was revoked by about September 12, 2013, and the Provincial Offences Act proceeding was discontinued.
[8] Seymour then issued a Stop Work Order dated October 8, 2013 to the Appellant requiring her to cease all forms of construction on the garage until such time as proper permits have been issued.
[9] At some point, three new charges were laid against the Appellant for constructing a building in breach of municipal bylaws and the Planning Act. A summons dated October 18, 2013 required her to appear in Provincial Offences Act court on what appears to be the 18th (the date is not clear on the copy on file) of December, 2013.
[10] The Appellant did not discontinue the appeal of the Order to Comply or file a new Notice of Appeal regarding the Stop Work Order. Instead, she filed her affidavit of October 16, 2013. In it, she states that she is appealing the Stop Work Order dated October 8, 2013 and seeking 12 other heads of relief.
[11] The documents filed by the Appellant in this matter contain accusations of dishonesty, illegal conduct, misfeasance, breach of her Charter rights, bad faith, vexatious conduct, tortious conduct, questionable conduct, contempt of court and harassment.
[12] The matter was spoken to on December 13, 2013 at which time concerns were expressed regarding the procedure being used by the Appellant, and it was adjourned to a date to be set. The Appellant subsequently filed a Notice of Motion seeking “all necessary amendments or other relief required by the moving party to secure the just determination of the real matters in dispute, pursuant to Rule 2.01(1), using the most expeditious and least expensive procedure, pursuant to Rule 1.04(1)”. The Notice of Motion states, among its grounds, that:
This Motion is more than an appeal; it is an Application for an injunction and a stay, based not only on the Respondent’s abusive tactics taken before the proceeding was commenced, but also on their abusive tactics taken after it was commenced.
The supporting affidavit of Deanna Lounsbury of March 20, 2014 explains at paragraph 2:
The requests made by the moving party have not changed since this proceeding commenced. Although styled as an appeal, the initiating document, the Notice of Appeal, joined requests for relief under the Courts of Justice Act which included requests for an injunction and a stay.
[13] Counsel for the Appellant advised that he used this admittedly unorthodox procedure to avoid extra paperwork and expense by adding to one proceeding all the relief sought.
[14] He confirmed that the relief he sought was as set out in heads of relief numbers 5, 8 and 9 of the Notice of Appeal, but broadened to cover the second municipal order and prosecution. Those heads of relief read as follows:
Interlocutory and permanent injunctions preventing any further actions being taken against the Appellant in regard to the subject matter of this proceeding, pursuant to s. 101(1) of the Courts of Justice Act;
That the proceedings commenced in the Ontario Court of Justice against the Appellant be
(a) stayed until the determination of proceedings in this court, or
(b) transferred to this court and consolidated or heard at the same time or immediately after the proceedings in this court,
pursuant to s.s. 107(1) and 138 of the Courts of Justice Act.
- That the proceedings commenced in the Ontario Court of Justice against the Appellant not be continued except by leave of this court, pursuant to s. 140(1) of the Courts of Justice Act.
[15] Appellant’s counsel disputed that a building permit was necessary in the circumstances. He then reviewed the history of the matter, pointing out that the municipality and its building inspector had not followed proper procedures, which conduct, he alleged, amounted to bad faith. He described the prosecution of the Appellant in a separate court while this proceeding is pending as a collateral attack, arguing that this court should use its plenary jurisdiction to address the wrongs and stop the prosecution and the continuing abuse of his client.
[16] When asked how this court could address the alleged wrongs and stop the prosecution, yet allow the Building Code Act to be applied and enforced legitimately so that this property does not become an “island of non-regulation within the municipality”, Appellant’s counsel suggested that the municipality not be restrained, but that there be an injunction against Clayton Seymour preventing him from dealing with this property so that another individual would, he hoped, properly perform his duties.
[17] Respondent’s counsel submitted that the Notice of Appeal dealt with the first municipal order and prosecution which have been cancelled and that the appeal is therefore moot. He noted that the Appellant has brought a motion seeking to amend the proceedings in some indiscernible way, but that pleadings cannot be fixed by filing an affidavit. He assumed that the Notice of Motion was an attempt to amend the proceedings, but questioned what exactly was sought as it was vaguely worded and the affidavits filed in support were neither proper affidavits because of their contents, nor pleadings. He took the position that all he had to do was respond to the Notice of Appeal and not try to understand the other documents.
[18] Furthermore, he had not filed affidavits for the Respondents because the necessary information was contained in the Appellant’s affidavits, he said. They showed that the structure was illegal as it had been erected without a building permit as required by s. 8 of the Building Code Act, and remains so. This court proceeding, he said, cannot legalize the building. To do so would be to permit the aforementioned island of non-regulation within the municipality.
[19] He also denied that there was proof of bad faith or that malicious prosecution had been proven.
DECISION
[20] The procedure employed by the Appellant in this matter left a lot to be desired. Efforts to make matters affordable to litigants of limited means, thereby improving access to justice, are commendable. However, following basic procedures under the Rules eliminates confusion and delays such as bedeviled this case. When the matter came before me on December 13, 2013 to be spoken to, as I recall, I expressed concerns about the procedure being employed to have the court use a Notice of Appeal of a municipal order which had been withdrawn to deal with a subsequent municipal order and charges in P.O.A. court based on inherent jurisdiction. When the matter returned before me most recently and I again queried the procedure, the Appellant’s counsel explained that he had understood that he should file a Notice of Motion, which he had done. The effect of it is questionable, as it does not explicitly seek to amend the Notice of Appeal.
[21] In the circumstances, one option open to the court would be to dismiss the matter on the ground that it is pursuant to a Notice of Appeal relating to an order which has been withdrawn and is therefore moot. As a practical matter, however, that would not be helpful. It would leave even more uncertainty. Instead, following Rule 2.01, I shall deal with this matter as if it was a properly constituted appeal of the second municipal order. The matter has already suffered too much delay.
[22] S. 25 of the Building Code Act provides for appeals to the Superior Court of Justice of such orders. Subsection 4 states:
On an appeal, a judge may affirm or rescind the order or decision and take any other action that the judge considers the chief building official, registered code agency or inspector ought to take in accordance with this Act and the regulations, and, for those purposes, the judge may substitute his or her opinion for that of the official, agency or inspector.
[23] As the Appellant’s counsel pointed out procedural irregularities leading up to the stop work order of October 8, 2013, I find that it is appropriate to and hereby rescind it, even though that is not specifically requested in the three heads of relief sought. However, it would not be appropriate to go further and impose injunctions on the municipality or its employees, including Clayton Seymour, from taking further action against the Appellant in this matter. That would be too abstract and speculative. There are legitimate land use interests at stake here and the court should not create the island of non-regulation within the municipality. If specific actions are taken against the Appellant for which there are legitimate remedies, she can consider her options then.
[24] Given the animus that has arisen between the Appellant and Clayton Seymour, it would be preferable if the municipality tasked another person with dealing with this matter. I decline to order that, however, because, even if there is authority to do so, which I have not been advised of, in such a small municipality there might well not be an available substitute.
[25] I see no reason to interfere at this juncture with the charges brought by the municipality against the Appellant in the Ontario Court of Justice under the municipal bylaw and the Planning Act and pursuant to the Provincial Offences Act. Those charges deal with the crux of the matter, which is whether or not the structure in question was erected illegally. If, as the Appellant contends, she has a defence to those charges, the POA proceedings provide a process for hearing that and deciding the case. Appellant’s counsel wanted a final decision from this court on this occasion, but there would have had to be a trial. There is no evidence before this court on which it could decide on the merits of the charges. Therefore, the balance of the relief requested is denied.
[26] In view of the mixed success in this matter, each side shall bear its own costs.
Justice James A. S. Wilcox
Released: July 14, 2014