SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 620-2012
DATE: 2014/12/15
RE: The Corporation of the City of Clarence-Rockland
AND
Marc Prud’Homme
BEFORE: The Honourable Justice M.Z. Charbonneau
COUNSEL: J.F. Lalonde, counsel for the Applicant
Marc Gauthier, counsel for the Respondent
HEARD: September 26, 2014
ENDORSEMENT
[1] The applicant, The Corporation of the City of Clarence-Rockland (the Corporation) brings this application for order finding the respondent Marc Prud’Homme in contempt of three (3) orders of the Court.
[2] I agree with the submissions of counsel for the respondent that the first two orders cannot be subject to a contempt proceeding. In the case of Justice Annis’ order of October 12, 2012 a contempt proceeding has already been completed, the respondent was found in contempt and fined. The finding resulted in the second order which ordered the respondent to pay a fine of $5,000.00. There can be no contempt proceedings for failure to pay a fine.
[3] The application is properly brought however in the case of the third order namely the order of Justice Beaudoin of February 1, 2013 which provided as follows:
- THIS COURT ORDERS that the Respondent, Marc Prud’Homme, comply with the Order to Comply, issued on June 19th, 2012, and obtain a
demolition permit for the demotion work carried out upon the premises described in schedule “A” in the year 2011 and 2012.
- THIS COURT FURTHER ORDERS that the Respondent, Marc
Prud’Homme, comply with the Order issued on June 19th, 2012, directing Marc Prud’homme to obtain a building permit for the construction works carried out on the premises described in Schedule “A” in the year 2012.
- THIS COURT FURTHER ORDERS that the Respondent, Marc
Prud’Homme, cease all construction upon the lands described in Schedule “A”
until he has obtained the required building permit from the Applicant’s
building department.
- THIS COURT FURTHER ORDERS that the Respondent, Marc
Prud’Homme, ensure that the STOP WORK ORDER posted upon the
premises being constructed located upon the lands described in Schedule “A”
remain visible at all times as required by the Building Code Act, S.O. 1992,
s. 23.
- THIS COURT FURTHER ORDERS that should the Respondent, Marc
Prud’Homme, fail to obtain the demotion permit and the building permit as
ordered in paragraphs 1 and 2 to the judgement within 60 days of the date of
this Order, that all structures erected upon the lands described in Schedule ‘A’
since the 1st day of January 2011 be demolished.
- THIS COURT FURTHER ORDERS that the Respondent, Marc
Prud’Homme, be restrained from continuing any construction works upon the lands described in Schedule “A” until the permits described in paragraphs 1 and 2 have been obtained.
[4] The evidence clearly establishes that the respondent willfully failed to comply with paragraphs 2, 3, 5 and 6 of the order.
[5] The respondent built a temporary steel fabric structure without a construction permit
having been obtained. The respondent subsequently on July 16, 2014 filed an incomplete application for a construction permit. This is clearly in contravention of paragraphs 2, 3 and 6.
[6] The structures which had been erected unlawfully prior to Justice Beaudoin’s order have not been demolished as required nor a building permit obtained in direct contravention of paragraph 5 of the order.
[7] The respondent admits having contravene the order but submits that he had to proceed with certain works for safety and commercial reasons and that he made all reasonable efforts to comply and obtain a building permit but that the Corporation unreasonably and in bad faith failed to provide him with a building permit or the information he needed to obtain one.
[8] I reject the respondent’s submissions. The history of this case clearly shows that the respondent willfully engaged in a course of conduct flouting the requirements of the Building Code and the various orders issued from the municipal building inspector. On the other hand, the Corporation has been at all times trying to have him comply with the building codes. He has had a long period of time to comply but has failed to take the necessary measures to do so.
[9] I am convinced beyond a reasonable doubt that the respondent is in contempt of paragraphs 2, 3, 5 and 6 of Justice Beaudoin’s order of February 1, 2014.
[10] Justice Beaudoin found the respondent guilty of contempt of Justice Annis’ order on February 1st, 2013. In view of the history of this file and in the hope that the respondent would comply, Justice Beaudoin opted to give a fine to the respondent instead of a term of imprisonment. Nevertheless a fine has failed to change his views and conduct. Justice Annis had also been very lenient with Mr. Prud’Homme by allowing him to sign an undertaking to comply.
[11] As a result there will be an order to issue as follows:
a) The respondent is found in contempt of paragraphs 2, 3, 5 and 6 of the Order of Justice Beaudoin dated February 1st, 2013.
b) A warrant of Committal will be issued for the arrest and imprisonment of the respondent for a period of 30 days.
c) The applicant is authorized to enter the lands and premises of the respondent and demolish all structures erected in the years 2011 to 2014 without a valid construction permit.
d) The respondent shall pay costs to the applicant fixed at $3,000.00.
Charbonneau, M.Z.
Date: December 15, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: The Corporation of the City of Clarence-Rockland, Applicant
AND
Marc Prud’Homme, Respondent
BEFORE: The Honourable Michel Z. Charbonneau
COUNSEL: J.F. Lalonde, Counsel for the Applicant
Marc Legault, Counsel for the Respondent
ENDORSEMENT
Charbonneau, M.Z.
Released: December 15, 2014