CITATION: City of Pickering v. Slade, 2015 ONSC 1571
COURT FILE NO.: 88691/14
DATE: 20150310
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Corporation of the City of Pickering and Kyle Bentley as the Chief Building Official of the City of Pickering
Applicant
– and –
James Slade and Nancy Slade
Respondents
N. Cameron Murkar for the Applicants
Self-Represented
HEARD: August 01, 2014
H.K. O’CONNELL j.
JUDGMENT
[1] I heard this motion for permanent injunctive and related relief on August 01, 2014. I reserved.
[2] Salmers J. had ordered that a temporary injunction issue on June 20, 2014.
[3] On March 09, 2014 the parties were advised by endorsement that the relief sought by the City was being granted. These are the reasons for my decision.
The Relief Sought
[4] The Town seeks the following relief:
a) An Order for injunctive relief prohibiting the Respondents from depositing or permitting the depositing, of any further fill on the property known municipally as 5400 Sideline 32 in Pickering, Ontario and legally described as PT LT 33 CON9, PICKERING, AS IN CO114355, PIN No: 26390-0010(LT), hereinafter referred to as the subject property;
b) An Order for a mandatory injunction compelling the Respondents to remove all of the fill that has been deposited on the subject property such that the resulting “grade” and “elevation” on the property are in accordance with the grading and drainage drawing that was approved by the City of Pickering when it issued Building Permit No.: 07-007343;
c) An Order that the Order to Discontinue, issued on April 5th, 2012 pursuant to By-Law 6060/02 be registered in the land registry office for the Region of Durham in the same manner and with the same force and effect as an Order registered pursuant to Section 15.2(4) of the Building Code Act, 1992;
d) An Order that the Respondents pay security for costs in favour of the Applicants in the amount of $50,000.00
e) An Order that the City of Pickering may erect a sign on the City’s road allowance near the entrance of the Slade’s property, giving notice that the dumping of fill on 5400 Sideline 32 in Pickering is prohibited and that the Respondents shall not interfere with, damage, remove, or obscure from view such a sign.
f) An Order for costs of this Application on a substantial indemnity basis inclusive of all applicable taxes and disbursements;
g) Any other such further Order that this Honourable Court may deem just.
Position of Pickering
[5] Although Pickering was seeking in its proposed orders security for costs, Pickering advised that it was not pursuing that remedy.
[6] Mr. Murkar, counsel for Pickering relies upon his Application Record which sets out the grounds for the Application inclusive of three affidavits and other material contained therein; a supplementary record filed on July 30, 2014; a supplementary affidavit provided to the court on August 01,2014; his factum; and a complete copy of By-Law 6060/02[^1] which was provided to the court on August 01, 2014 as well as the cases of Uxbridge (Town) v. Corbar Holdings,[^2] inclusive of the trial judgment and the Court of Appeal judgment, and the decision in Newcastle Recycling Ltd v. Clarington,[^3] a decision also of our Court of Appeal.
[7] Counsel submitted that the placing of fill violates several Codes and Acts inclusive of By-Law 6060/02; section 6.4 of the Zoning By-law; section 67 of the Planning Act; section 8(13) of the Building Code Act; section 5>(b) of Ontario Regulation 140/02 of the Oak Ridges Moraine Conservation Plan and section 24 of the Oak Ridges Moraine Conservation Act.
[8] Essentially the City of Pickering takes the position that the by-laws were clearly contravened and indeed flagrantly violated based on the history of this case. The evidentiary framework for this allegation comes largely from the affidavits filed, and the attachments therein.
[9] Reviewing that material, counsel referenced the affidavit of Mr. Brad Suckling, a municipal by-law enforcement officer, at Tab 2 of his application record, which sets out his involvement with the Slades and his observations of the Slade property. In the municipal zone in which the Slades live and given the size of their property, the zoning by-law speaks to permissible uses on such lands.
[10] A building permit was issued in February 2008 based on plans and drawings that were submitted. The approval was based on the drawings and plans which in turn was based on particular grading and drainage schemes.
[11] Mr. Suckling advises in his affidavit that as of the spring of 2009 it became apparent that the amount of fill being deposited exceeded what was approved as per the building permit.
[12] Mr. Suckling further states that at that point the problem was of a limited magnitude for which the City believed a resolution could be arrived at with the filing by the Slades of a revised grading and drainage drawing that the City could assess for review and approval.
[13] However no communication was received from the Respondents in response to multiple requests by the City to engage the Slades on this issue, save and except a “site plan” drawing with hand scribbled notations on it, however it did not show revised elevations and was not acceptable or approved. Mr. Slade’s drawing with his notations is set out as Exhibit B to the affidavit of Mr. Suckling.
[14] Time went on. By June 2011 the City was quite concerned about the fill being deposited. The City responded by communicating with the Slades indicating that the grades had changed significantly from the originally approved grading and calling on the Slades to provide a revised grading plan showing existing and revised elevations so that it could be considered for approval.
[15] Nothing was forthcoming. By December 2011 complaints were being received by residents in the vicinity that a commercial fill site was being undertaken at the Slade’s property.
[16] Mr. Suckling attests that the complaints were consistent with the City’s “ongoing observations of the ever increasing amount of fill that was by now visibly accumulating on the subject property.”
[17] As a consequence the City wrote Mr. Slade to advise that the fill being deposited exceeded what had been approved and a fill permit would be required. In addition the Respondent was told to cease dumping on the property in the interim. The City requested a reply by December 16, 2011 however none was forthcoming.
[18] The failure to reply caused the City to write another letter on February 02, 2012 and yet no reply was forthcoming.
[19] An Order to Discontinue was issued on April 05, 2012 pursuant to Fill By-Law 6060/02.
[20] The order mandated compliance by the respondents, by April 05, 2012, under the title Work to be Carried Out, as follows:
Apply and obtain a topsoil Removal, Fill Placement, Erosion and Sediment Control Permit;
Or remove the material so that the property complies with what was approved with Building Permit BH07-7343 Apply and obtain by April 05, 2012. That Order is at Exhibit F of the affidavit of Mr. Suckling.
[21] The Respondents ignored the Order and continued to dump fill. This caused another letter from the City to the Respondents, requesting compliance by June 19, 2012. To quote Mr. Murkar, the requests from the City, “go on and on.”
[22] As a result of the wanton failure to comply the Respondents were charged in 2012 with failing to comply with the Order to Discontinue and with dumping fill under By-Law 6060/02. The information underpinning the charges is set out at Tab H.
[23] Mr. Murkar advised the court that on July 29, 2014 the Respondent Mr. Slade was found guilty on all counts, and Ms. Slade was found guilty on counts 2, 4 and 5.
[24] Mr. Slade interjected at this point in the argument of Mr. Murkar, to advise the court that he fully admits that fill was brought in on a continuing basis, and the only issue with Pickering is that this was only top soil material. Mr. Slade noted that much of what Mr. Murkar was saying is not in dispute. The only issue is the issue of top soil, nothing else, and if it is topsoil, why this is not in violation of any by-laws or laws.
[25] Mr. Murkar argued that this concession did not change anything. If it is all top soil it simply doesn’t matter given the context of the entire fill by-law, By-law 6060/02, which is entitled Fill and Topsoil Disturbance By-Law.
[26] The core of the application for the injunction is not affected even if it is all top soil that is being dumped on the property. Reference was made to the By-Law at section 1(k) where fill is defined. The definition includes soil amongst other substances, inclusive of any material.
[27] A permit is required to do many activities inclusive of the placing of topsoil, and in this case no permit was obtained.
[28] In the affidavit at Tab 3 of the Application Record, of Joe Mitschang, who is the Development Control Inspector for the City of Pickering, Mr. Mitschang sets out the application for the building permit for the Slade property including the drainage and grading plan that was approved for the site, by the City, in first instance.
[29] Mr. Mitschang attaches to his affidavit the grading plan noting the elevations that were approved for the grading plan. He notes the importance of grading and drainage
[30] Mr. Mitschang attests to the exceeding of the deposit of fill and the placement of fill where no authority was given for such deposit. Mr. Mitschang describes, at paragraph 8 of his affidavit, that the amount of fill that has been deposited is “grossly in excess of what was approved and beyond comprehension,” and that “I have been advised by the neighbour to the North that he has witnessed literally thousands of truckloads of fill being dumped on the subject property. The fact of the matter is that there is now literally a mountain of fill situated to the west and north of the recently constructed residence.”
[31] The fill is in areas where grade was not to be changed, in short where no fill was to be deposited. The pictures of the fill make this “manifestly obvious.”
[32] Mr. Murkar submits in addressing Mr. Slade’s comment that because it may be top soil, or whatever it might be, simply doesn’t matter. It has affected grade and elevation and drainage. This is in contravention of section 8(13) of the Building Code Act which makes it plain that changes can only be made as permitted by permit.
[33] Also section 38 of the Building Code Act allows application to the court to force compliance with a permit, or issue whatever other order the court sees fit.
[34] In relation to the zoning aspect, Mr. Murkar references his factum at Tab C which notes that this property is in the Oak Ridges Moraine Agricultural Zone which prescribes what is permissible.
[35] This is either a commercial fill site or outdoor storage. The Respondents were very recently convicted of using the site as outdoor storage.
[36] Reference was made to the affidavits as filed by Mr. Slade to suggest that the Respondents acknowledge the storing of soil outdoors, which is a non permitted use, as per section 6.4(1) of the Oak Ridges Moraine Agricultural Zone by-law.
[37] Nor is there any farming activity at the property. Mr. Suckling attests to this in his affidavit at paragraph 31, noting that he has never observed any agricultural use or purpose. The material that is being dumped is soil mixed with concrete and other construction debris of a non soil, non- agricultural nature. Mr. Suckling has not observed any top soil being dumped.
[38] Mr. Hall, a neighbour to the Slades also attests in Paragraph 7 of his affidavit, at Tab 4 of the Applicant’s Application Record, that he has never seen any farming or tree nursery operation, inclusive of never seeing delivery of any nursery stock or supplies, or the carrying on of any farming activity at all.
[39] Mr. Hall took pictures that are part of his affidavit which show debris mixed into soil being deposited on the property. Mr. Murkar described these pictures as very good descriptors of what is being dumped.
[40] Section 6.4.1 of the Zoning by-law is being violated as outdoor storage is being undertaken, a non-permitted use.
[41] Mr. Murkar also referenced the Respondent’s material, volume 2, noting an application for a licence for a nursery, however there is no evidence of a nursery ever being operated at the property over the time frame that the Slades and the City have been involved with each other.
[42] Mr. Murkar noted that anyone can apply for a licence. The application for licence was issued on March 18, 2014.
Position of the Respondents
[43] Mr. Slade made the submissions for the Respondents, namely himself and his wife.
[44] He argued that everything deposited was top soil, and noted that the neighbour to the North is the only source of information that what was deposited was not top soil, and that that neighbour has a motive, which is to harass the Respondents.
[45] Mr. Slade argues that the bylaw indicates fill and topsoil. At tab 15 of his material, volume 2, an excerpt is set out from the Ministry of Agriculture. He emphasized the last paragraph therein, which notes the protection of agriculture, natural landscapes and topsoil resources.
[46] The fill permit came into effect in 2003, which was a continuation of the Top Soil Preservation Act that was rescinded the same year. According to Mr. Slade there is no top soil storage for agricultural purposes that is prohibited in the Pickering by-laws.
[47] Mr. Slade says all he is doing is topsoil storage. He advises that the Respondents want to plant a total of 5000 trees, which requires 2500 truckloads of topsoil to replace what is going out.
[48] The grading plan itself has serious issues that conflict with elevations that the Town “stamped”.
[49] Under the Farming and Food Production and Protection Act, which is the Act that he references to screen and use the material on site, there are no elevation changes that will occur. The City’s drawings are “in error”.
[50] According to the Respondents there are not drainage issues. The only issue is the storage pile of top soil, which the Respondents say is governed by the Farming and Food Production Protection Act, which is set out at tab 11 of volume 2. According to the Slades they are now done and complete with the bringing in of fill.
[51] Trees must be grown on topsoil, which is essential to the tree nursery business.
[52] If this is a normal farm practice under the Act, pursuant to section 1.2, then there is a mechanism to deal with it before the Board. The Respondents argue that they are in the process of setting up their tree business up, and offered that the farm land is not conducive to growing trees without upgrading the property with top soil.
[53] The Respondents argue that they are now at the juncture where the planting of trees and proceed. However there has been a delay.
[54] Mr. Slade reinforced his argument that top soil is for an agricultural purpose. In the Fill and Topsoil Disturbance By-law, the respondents intend on screening and moving the fill for the purpose of an agricultural business. The Slades are aware that the City advised that storage of top soil is not permissible under the by-law, but they disagree.
[55] The Respondents have registered the business for tree farming, but can only plant in early spring or fall, depending on the nature of the trees to be planted. Planting has not commenced.
[56] The Farming and Food Production Protection Act also anticipates that if one is in the process of setting up of a farm, the rules of that Act apply. In essence they are promising Pickering that nothing else is coming onto the property.
[57] Mr. Slade argued that the sign that is up near their property is an embarrassment to them, and should be removed. He undertook not to bring other top soil or any fill on the property until the original grade is back, which is currently being undertaken.
Reply
[58] Before Mr. Murkar replied, the court summed up the position of the Respondents, inclusive of the argument that this is a tree farm which is up and coming. The court asked if this made any difference, on the assumption and only the assumption that if that was the case, would that affect the position of the City.
[59] Mr. Murkar reminds the court that Justice Salmers’ order incorporates the placement of the sign.
[60] Counsel provided the court with the two cases that I referenced earlier.
[61] The Farming and Food Production Protection Act does not apply to future operations. The evidence before the court is that there has been no farming whatsoever. In relation to the business licence in paragraph 37 of Mr. Slade’s affidavit. Mr. Murkar notes that the licence is said to have been issued in March 2013, but after speaking to Mr. Slade he confirms it was a typo and the licence was not issued until 2014. Mr. Slade agreed.
[62] The Farming and Food Production Protection Act is therefore irrelevant. In Uxbridge v. Corbar Holdings, the facts are quite similar to the case at bar, argues Mr. Murkar. As in Corbar the quantity of fill is not consistent with farming.
[63] Edwards J. in first instance in Corbar, at paragraph 33, noted that no one had applied to the Board to have the issue determined as to whether the deposit of fill was a normal farming practice pursuant to the Act.
[64] The Court of Appeal upheld Edwards J. noting that it was open to the application judge on that record to make the finding that he did to grant the injunction that was issued.
[65] Furthermore in Corbar, the court noted that the issue of dumping is a big problem in the area in question.
[66] The Farming and Food Protection Practices Act is not applicable and in addition would not assist with the Respondents as there is otherwise a violation of the Oak Ridges Legislation and the Building Code Act, as the Farming and Food Protection Practices Act only applies to exempt by-laws where authorized.
[67] The Newcastle case is cited for the proposition that once evidence establishes that materials were being dumped or deposited in contravention of the by-law, an injunction is an appropriate remedy.
[68] The dumping continued to the day before the appearance before Salmers J, on June 20, 2014. It was continuous up until then. Prior testimony in other proceedings sets out the evidence of Mr. Slade not bringing in any more fill, yet he continued to do so up until June 2014.
[69] The Respondents neighbour, Mr. Hall attests that up to 75-100 trucks a day attended at the Respondents property, and the evidence is that thousands of trucks have dumped there. In exhibit L to the affidavit of Mr. Suckling, a driver who was dumping soil on the Slade property provides a statement where he notes that he was paid $40 a load from Mr. Slade, to allow for dumping.
[70] Mr. Hall notes that he got brochures from truckers offering up to $75 per load if he allowed dumping on his farm.
[71] Mr. Murkar placed particular emphasis on the affidavits of Messrs. Hall and Suckling, who both note the dumping of debris on the Respondent’s property. Pictorial representations of the dumping speak for themselves.
The Respondents Surreply
[72] The Court permitted the Respondents to make some surreply. The Court did so to allow Mr. Slade to comment on the case-law provided by Mr. Murkar.
[73] Mr. Slade commented upon the cases proffered by the City. He argued that Mr. Conbar, who owned the lands in question in the Uxbridge case, took in thousands of loads of fill, not top soil.
[74] He re-iterated that he what he and his wife were doing falls under the Farming and Food Production Protection Act, which makes his plan agricultural, and therefore a farm operation.
[75] As a consequence Mr. Slade argues that he and his wife own an agricultural property; they have registered a business; they have demonstrable plans; they are classified as a farm; and they are in the process of final grading and planting. The plans are in place and are “finally succeeding.”
[76] Mr. Slade referred to a letter from the City that he could not find which he said permitted him to store top soil with the City’s concurrence.
[77] Mr. Murkar retorted that that was never the City’s position.
[78] I indicated to Mr. Murkar that if Mr. Slade had such a letter he could provide it to Mr. Murkar and seek to come back before the court, if necessary.
Ruling
[79] To commence I have only considered the evidence that was before me which consists of the affidavits and attachments of the Applicant City and the affidavit of the Respondent Mr. James Slade, filed on August 01, 2014, as well as various materials contained in the Respondent’s two volumes of materials.
[80] I have not considered for evidentiary force any of the submissions made inclusive of Mr. Slade’s comment that his neighbour Mr. Hall was harassing him.
[81] I have considered the letter that Mr. Slade referred to, as noted in paragraph 77, above. Via letter to the court and Mr. Slade dated August 06, 2014, Mr. Murkar advised that the letter that Mr. Slade referred to at the motion was at Tab G of the Application Record. Counsel indicated in his letter that Mr. Slade wanted to re-appear before the Court to address the letter, however counsel did not think that necessary.
[82] The court had correspondence sent to the parties that a further appearance was not necessary.
[83] It is clear that the letter does not say that the City approved the storage or dumping of top soil. The letter is clear and concise. Nothing in the letter authored by by-law enforcement officer Mr. Brad Suckling, could conceivably be read as anything more than the acknowledgment that “the tree nursery you have proposed is an acceptable use under the zoning for this property.” Nothing suggests that placement of fill is permissible with a tree nursery.
[84] Mr. Suckling was very clear in setting out the City’s position that the zoning by-law and the Topsoil by-law were being contravened absent a permit to store top soil, which was not in place, and even if it was the top soil placement as proposed was otherwise still in contravention of the zoning for the area.
The affidavits
[85] There can be no question that at the very least the Respondents have had very large amounts of fill deposited on their property. This fill is not within the originally approved area where a valid building permit was issued to allow for construction on the property.
[86] Indeed the Respondents have conceded the placement of fill. A review of the affidavit of Mr. Suckling dated May 19, 2014 and its related appendices; the affidavit of Joseph Mischang dated June 06, 2014 and its related appendices and that of Mike Hall, the Respondent’s neighbour, make it clear and evident beyond any doubt that massive amounts of fill have been deposited on the Respondent’s property without any permits that are required to do so. Pictures in this case clearly support the adage that a picture is worth a thousand words.
[87] In addition I have considered Mr. Suckling’s supplementary affidavit dated July 13, 2014 which indicates that the Respondents have been convicted of various infractions. I have not considered those infractions in the determination that I have made however.
[88] The Applicant also relies on the affidavit of Pat Doddy, a Senior Enforcement Officer with the Toronto Region Conservation Authority, sworn July 29, 2014. Officer Doddy notes that no permit has been granted to place fill to plant trees. Where an applicant is in violation of the Conservation Authorities Act, the TRCA will not consider new permit applications. Given Officer Doddy’s attestation that the Respondents have committed numerous contraventions of the Conservation Authorities Act, no permit will be entertained.
[89] Lastly I have the affidavit of Mr. Hall, the neighbour of the Respondents. His affidavit was sworn on June 09, 2014. He attests to the dumping of fill on the Respondent’s lands, how the fill is “a huge mountain of fill the size of a football field to the west, south and north of the Slade’s residence.”
[90] The pictures bear out this description.
[91] The affidavit of the Respondent Mr. Slade does not assist his case. Leaving aside the fact that he has now been convicted of several infractions involving the dumping at his property, a factor that as I advised I have not considered on this application, Mr. Slade’s affidavit is otherwise non responsive to the determination of what I must consider on this application. Bald assertions of harassment, or malicious prosecution without any evidentiary foundation, are not proxies for proof.
[92] Indeed not only in oral submissions but in his affidavit, Mr. Slade concedes that he would need time to have “our grading plan detailed and completed.” In short the grading as currently constituted is not approved, and is conceded to be so.
[93] The Respondents well know the need to get permits to build on the property and are deemed to be aware of the clear need to get a permit for topsoil storage. Mr. Slade himself stated in oral submissions that he knew the Fill and Topsoil Disturbance By-Law very well.
[94] He is otherwise deemed to know the law. He has been on notice for a matter of years now that he is in contravention of both the by-law and the law. From a subjective eye, the City has been very reasonable in its approach to these Respondents.
[95] In the case at bar, I find the descriptor of Edwards J. in the Uxbridge case, as apt, wherein he stated that “ the depositing of the quantity of fill that has been observed,…..do(es) not in any way remotely resemble a normal farming operation.”
[96] The monumental amount of fill, whether it be topsoil or soil and debris, is much more akin to a commercial fill operation.
[97] Nor is it reasonable to suggest that the fill deposit, that does require a permit, is permissible because the intent is to conduct tree farming, which is, in and of itself, a recognized farming endeavour.
[98] Suffice to say no permits have ever been obtained, save and except the obtaining of a licence to tree farm. In that regard I agree with Mr .Murkar that the mere obtaining of a licence does not assist the respondents. A licence gives permission to do something, but does not override other legal obligations incidental to the permission it grants.
[99] Save and except for the Respondents bald assertion that they are going to engage in tree farming there is not one iota of evidence that that is being done or has been done.
[100] Even if it is in the imminent offing, the Respondents have not availed themselves of the mechanism in the Farming and Food Production Protection Act under section 6(2) to apply to the Normal Farm Practice Protection Board for a determination of whether the municipal by-law conflicts or restricts a normal farm practice in connection with a agricultural operation.
[101] In any event the mechanism of review under section 6(2) does not assist the Respondents where legislative Acts, and not by-laws, restrict a “normal farming operation.”
[102] Let me add that this is not a case where I need have any concern that I am being called upon to determine the credibility of a deponent to resolve material facts.[^4]
[103] The only affiant who the Respondent infuses with an allegation of harassment is Mr. Hall, however there is no offer of proof to the court such that it disturbs the content of his affidavit. Likewise his belief that Ms. Suckling has singled him out for “malicious prosecution” is likewise unsubstantiated and untenable.
[104] The facts are self-evident. The dumping, and even it one calls it storage of top soil, is conceded by the Respondents.
[105] I therefore agree entirely with the position of the City of Pickering. The injunctive relief as sought is entirely appropriate as is its incidental relief.
[106] For these reasons, the injunctive relief sought as set out at paragraph 3 a), b), c), and e), is granted.
[107] The City shall submit its submissions on costs limited to 3 pages in addition to its bill of costs by April 01, 2015 with the Respondents to reply within 10 days of receipt on the same terms. Any reply by the City within 5 days of receipt of the Respondent’s submissions.
DATED: this 10th day of March, 2015.
Justice H.K. O’Connell
[^1]: The Application record contained the first 2 pages of the By-Law.
[^2]: [2012] O.J. No. 3558; Aff’d [2013] O.J. No. 4143
[^3]: 2005 CarswellOnt 7237.
[^4]: See Newcastle, per Juriansz J.A. at Paragraph 11.