ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 534-2012 (L’Orignal)
Date: 2014/09/19

BETWEEN:

STEPHANE MELOCHE

Plaintiff

– and –

THE TOWNSHIP OF ALFRED AND PLANTAGENET and MARTIN GUINDON

Defendant

Terrance Green, counsel for the Plaintiff

Jason Shelly, counsel for the Defendant

Heard: September 5, 2014

Ruling on motion for summary judgment

Laliberté, J.

INTRODUCTION

[1] The Defendants have brought a motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure. They also seek the enforcement of undertakings given during discoveries.

This action against the municipality and its enforcement officer is framed as follows in the statement of claim:

“That By-law Officer Martin Guindon was negligent and/or excessive in the application of his role respecting the three properties of Stephane Meloche.”

[2] There is no dispute that on May 8, 2012, following a complaint which led to an inspection, a work order was issued by an officer directing the Plaintiff to remove materials on land owned by him by June 15, 2012. It is also clear that on June 19and 20, 2012, materials were caused to be removed by the municipality at the Plaintiff’s costs and against his wishes. In fact, he had chained the entrance to the property and placed heavy machinery at the entrance.

[3] The basis for this motion is that there is no genuine issue requiring a trial. Defendant Martin Guindon is immune from any liability unless he acted in bad faith. In the absence of evidence of bad faith, the action should be dismissed. If the action cannot stand against him then it cannot stand against the municipality.

[4] Briefly, the Plaintiff submits that the materials were not waste but portions of a dismantled house which had been transported on the property. His intent was to assemble the materials and build a house. Furthermore, he argues that entry on his land was gained without a warrant and as such, amounted to trespass.

[5] The issue to be decided by the Court is whether there is no genuine issue requiring a trial.

THE LAW

[6] In deciding this matter, the Court is guided by the following relevant principles:

SUMMARY JUDGMENT

i) The Court shall grant summary judgment if satisfied that there is no genuine issue requiring a trial;

Rule 20.04 (2)(a)

ii) In deciding this, the Court shall consider the evidence submitted by the parties;

Rule 20.04 (2.1)

iii) The Court may weigh the evidence, evaluate credibility and draw reasonable inferences unless the interest of justice requires that such powers be exercised only at a trial;

Rule 20.04 (2.1)

iv) “There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits…this will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

Hryniak v. Mauldin 2014 SCC 7 paragraph 49

v) Once the moving party has met its initial burden of persuasion that there is no evidence from which a Court could find for the Plaintiff, then the responding party must put “its best foot forward”, it must be shown on the basis of affidavit material or other evidence specific facts raising a genuine issue requiring a trial;

New Solutions Extrusion Corp. v. Gauthier 2010 ONCA 348, [2010] O.J. No 1988

Swepa Farms Ltd v. Egg Farmers of Ontario 2014 ONSC 1200, [2014] O.J. No 851

MUNICIPALITY LIABILITY

i) No proceeding for damages or otherwise shall be commenced against an officer, employee or agent of a municipality for any act done in good faith in the performance of a duty.

• Section 448(1) Municipality Act, 2001

ii) A municipality is not relieved of liability in respect of a tort committed by one of its officer, employee or agent.

• Section 488(2) Municipal Act, 2001

iii) “…while the Municipal Act grants the city immunity for many acts, it expressly does not relieve it of liability for torts, for damage that results from acts done in bad faith…”

• Rausch v. Pickering (City) 2013 ONCA 740, [2013] O.J. No 5584 paragraph 12

iv) “…enforcement officers are obliged to (i) act in good faith in relation to their decisions as to how a by-law will be enforced, and (ii) act with reasonable care in any steps they take to enforce a by-law…”

• Rausch v. Pickering (City) op. cit. paragraph 88

v) A municipality may make a work order against the owner of land if satisfied that a by-law has been contravened.

• Section 445 Municipality Act, 2001

vi) An officer acting under a property standard by-law may enter upon land, without a warrant, at any reasonable time.

• Section 446 Municipal Act, 2001

DISCUSSION

[7] Having considered all of the circumstances, the Court comes to the conclusion that the Defendants (moving party) have met their initial burden of persuasion that there is no evidence from which a Court could find for the Plaintiff. This conclusion is based on the following considerations:

• The actions and steps taken by the Defendants are, prima facie, authorised by statute;

• There is no evidence to suggest that these actions and steps were for a purpose other than the enforcement of a property standard by-law;

• The only evidence before the Court is that the Defendants acted in response to a complaint;

• There is no evidence to suggest that the actions or steps went beyond what is authorized by law;

• The enforcement steps were taken following an inspection made by two officers; looking at the photographs produced to the Court in this motion, it was certainly reasonable for the officers to be satisfied that the state of the land contravened the by-law;

• There is no evidence to suggest that the Plaintiff took steps to advise the Defendants that these materials were not waste but building materials before June 19, 2012; in fact, the Plaintiff’s actions were to try and obstruct enforcement through a chain and heavy machinery;

• The Plaintiff was given a reasonable period of time to correct the contravention;

• The inference from the Plaintiff’s questioning is that the materials had been placed on the land in 2011;

• There cannot be a finding of bad faith and/or negligence on the fact that entry was gained without a warrant; there is no requirement for judicial authorization to enter property for such enforcement purposes;

• There is no evidence to support the Plaintiff’s claim as articulated in his statement of claim, that the Defendants had attended two of his other properties and removed items;

• The Defendant was never questioned during his examination of June 21, 2013 on points which may be supportive of the proposition that he acted in bad faith and/or not in accordance with his duty of care;

[8] The next question then is whether the Plaintiff has shown, on the basis of affidavit material or other evidence, specific facts raising a genuine issue requiring a trial. In more practical terms, the question is whether the Plaintiff has adduced any evidence which would tend to support the proposition that the Defendants acted in bad faith and/or in breach of a duty of care.

[9] The following points are raised by the Plaintiff in his factum:

• The motion is vexatious, frivolous and an abuse of the courts’ process;

• A motion of such a nature was never raised before;

• The Plaintiff was not allowed adequate time to fulfill the orders;

• Knowing the Plaintiff was ill and could not meet the deadlines, the officer pursued his actions regardless;

• The materials were not waste and the Defendant ignored the Plaintiff who was trying to explain to him the nature of the materials;

• The Defendant used excessive unnecessary force in demolishing all materials;

• The Plaintiff was trying to obtain the necessary permits to be able to construct the house but the Defendant did not allow this attempt;

• The Plaintiff challenges the validity of the by-law;

• The Municipality did not allow the Plaintiff the chance to do the work; Defendant Guindon took harassing measures to ensure destruction of the Plaintiff’s home;

• The Defendants took all measures to ensure that the Plaintiff could not meet the outline of the work order;

• Defendant Guindon misrepresented himself to the Plaintiff and the situation when he did not serve the order properly.

[10] The evidence filed in this motion consists of the following:

• Examination for discovery of Stephane Meloche on June 21, 2013;

• Examination for discovery of Martin Guindon on June 21, 2013;

• Affidavit of Linsey Fraser filed by the Plaintiff which addresses the question of undertakings given at the questioning;

• Affidavit of Defendant Martin Guindon.

[11] Having carefully reviewed this evidence, the Court finds that none of the serious allegations suggested in the Plaintiff’s Factum find support in the evidence.

[12] There is no question that the motion for summary judgment would be defeated if there was evidence suggesting that the Defendants acted as alleged in the said Factum. Such action would clearly amount to bad faith and negligence.

[13] As already discussed, the assumption is that the Plaintiff has “put his best foot forward” in responding to this motion. The law requires the Plaintiff to show that there is evidence to support his allegations. He cannot rely on allegations in his pleadings. The Court finds that he has not done so.

CONCLUSION

[14] The Court grants summary judgment in favour of the Defendants for the dismissal of the Plaintiff’s action.

[15] The parties are asked to attempt to resolve the issue of costs. If unable to do so, brief submissions are to be filed with the court on or before October 20, 2014.

Justice Ronald M. Laliberté Jr.

Released: September 19, 2014

2014 ONSC 5430

COURT FILE NO.: 534-2012 (L’Orignal)

DATE: 2014/09/19

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

STEPHANE MELOCHE

Plaintiff

– and –

THE TOWNSHIP OF ALFRED AND PLANTAGENET and MARTIN GUINDON

Defendant

ruling on motion for summary judgment

Justice Ronald M. Laliberté, Jr.

Released: September 19, 2014