SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 37/10
DATE: 2015-07-02

RE: Frank Leslie Saska, Plaintiff

AND:

The Corporation of Norfolk County and Randy Vanden Berghe, Defendants

BEFORE: Heeney R.S.J.

COUNSEL:
Robert B. Stewart, for the Plaintiff

Tara Pollitt, for the Defendants

HEARD: May 25, 26 & 28, 2015 at Woodstock

ENDORSEMENT

[1] The plaintiff seeks damages of $150,000 from the defendant Corporation of Norfolk County for trespass and conversion arising out of the cleanup of his property by the County pursuant to their “Clean Yard By-Law” No. 2005-127. The action as against the personal defendant Randy Vanden Berghe was previously dismissed on consent.

[2] In his Statement of Claim, the plaintiff had alleged that the by-law was invalid. That pleading has now been abandoned, and the by-law is conceded to have been validly enacted, pursuant to the power given to the County under s. 127 of the Municipal Act, S.O. 2001, c. 25 (“the Act”). The plaintiff’s claim is now based on two allegations: that the items removed from the property fell outside the scope of the Order to Comply dated November 14, 2007; and that, while the County has the right to remove debris from property, it has no right to dispose of it, and must account to the plaintiff for the value thereof.

The Facts:

[3] The evidence is largely undisputed. The plaintiff owns a residential property fronting on Highway #3 near Delhi in Norfolk County. On November 2, 2007 there was a fire in a shed located in the back yard of his property, which was put out by the local fire department. This led to an inspection of the property by Randy Vanden Berghe, a by-law enforcement officer employed by the County, concerning a possible violation of the County’s Clean Yard By-Law.

[4] Randy Vanden Berghe inspected the property on November 13, 2007, pursuant to the power given to him under s. 3.3 of the by-law and s. 436 of the Act. He found the burnt remains of a shed in the backyard, along with an abandoned car that had been burned in the fire. Beyond the material involved in the fire, however, he found an abandoned stake truck, several other abandoned cars, and many large piles of rusted metal, plastic and wood debris, piled up against the house, shed and throughout the yard. The photographs filed in evidence graphically depict a vast amount of what can only be described as “junk” littering the plaintiff’s yard.

[5] Mr. Vanden Burghe had a brief discussion with the plaintiff, and made it clear to him that a cleanup order would be issued. The “Order to Comply" followed on November 14, 2007, and was hand-delivered to the plaintiff. It quoted By-law 2005-127 and in particular s. 3.1 and s. 2.10 thereof, which read as follows:

3.1 Every person shall keep their property in a clean condition and without limiting generality of the foregoing, shall keep the property free of refuse, debris, long grass or noxious weeds.

2.10 Refuse – shall include any unused or discarded material, thing or substance and, without limiting the generality of the foregoing, shall include debris, rubbish, junk, litter, discarded paper or paper products, unused or discarded materials of any kind, appliances, devices, apparatus, machinery, furniture, discarded clothing, construction materials, concrete, flagstone, gravel, asphalt, tires, unused motor vehicles or part thereof, abandoned vehicles, inoperative motor vehicles, vehicles without validated licence plate stickers, vehicles without licence plates, objects or conditions that may create fire, health or safety hazard, dead animals, old or decayed lumber, decayed trees, discarded trees, parts of trees and leaves, or discarded organic materials that are not part of a compost program.

[6] The notice included a description of the deficiency as Schedule “A”:

All abandoned vehicles. All materials metals, woods, plastics, tires, etc and any piles of materials which can cause fire or safety hazards.

Materials for your construction of your garage must be piled in an orderly manner. Furthermore most materials should be store (sic) inside the garage or storage building.

[7] In the “Action to be Taken to Remedy Deficiency” section of Schedule “A”, it stated:

All items including any REFUSE AS DEFINED ABOVE IN SECTION 2.10 ARE TO BE REMOVED FROM THE PROPERTY.

[8] The plaintiff indicated that he was waiting to complete an insurance claim. In view of that, and since winter was approaching, the notice allowed the plaintiff until May 1, 2008 to clean up the property, which was a longer period than normal.

[9] A copy of the by-law was included with the Order to Comply. It provided that a person served with such an order could appeal to the Clean Yard Appeal Committee within 14 days after service. No such appeal was ever brought by the plaintiff.

[10] Mr. Vanden Berghe next attended at the property on September 16, 2008. He found that the burnt car had been removed along with some of the debris, but there were still other abandoned vehicles without valid registration stickers, and a stake truck whose wheels were stuck deep into the mud. The photographs of the other large piles of rusted metal, plastic, wood and other debris that he took on that day looked little different than those taken on his first attendance.

[11] He spoke to the plaintiff, who wasn’t happy that he was on the property taking photographs. The plaintiff said he was still dealing with his insurance company, and for that reason he could not do the cleanup.

[12] The evidence reveals that the plaintiff filed a Proof of Loss dated November 5, 2008, claiming $16,937.50, and was paid that sum by his insurance company shortly thereafter.

[13] Mr. Vanden Berghe opted to give the plaintiff additional time to comply. A “Final Notice” was issued on April 28, 2009, which gave the plaintiff until July 1, 2009 to comply with the original Order to Comply dated November 14, 2007. It was served on the plaintiff the same day. The plaintiff was very uncooperative, and again objected to the fact that Mr. Vanden Berghe was taking photographs.

[14] The officer attended the property again on May 5, 2009, with his supervisor, the Chief Building Official Fritz Enzlin. Mr. Vanden Berghe had come to the conclusion at this point in time that the County was going to have to proceed to clean up the property, and he wanted to have his supervisor involved. The property was still littered with vast piles of debris and abandoned vehicles. The plaintiff said that he had a medical condition that required an upcoming operation. For compassionate reasons, Mr. Enzlin agreed to extend the deadline for compliance with the cleanup order to September 1, 2009. A further “Final Notice” reflecting that date was served on the plaintiff on May 6, 2009.

[15] On September 30, 2009, Mr. Vanden Berghe again attended the property, and found that little had changed. A large metal television antenna was there that had not been there before, along with the abandoned stake truck and large piles of debris. The plaintiff got very aggressive, saying he did not have to clean up the property and that Mr. Vanden Berghe had no right to take pictures. He came towards Mr. Vanden Berghe, but was told to back off before he got himself into trouble. There was no physical contact.

[16] His next attendance was on October 19, 2009, when he came with the contractor, Lee Lin, the principal of The Lawn Guy, who had been retained to do the cleanup. Once again, the plaintiff was argumentative, and told Mr. Vanden Berghe that he had no right to be on the property, and that he was trespassing. The plaintiff again indicated that he was not going to clean up the property.

[17] Given the fact that it was clear the plaintiff would not voluntarily comply with the cleanup order, arrangements were made to attend at the property on November 2, 2009 to do so. This action was pursuant to s. 7.2 of the by-law, which provides that if the owner fails to comply with the provisions of the by-law, the municipality may complete the work, and the costs associated with the work shall be billed to the owner in a like manner as taxes.

[18] On November 2, 2009, Mr. Lin attended with a crew and heavy equipment. Mr. Vanden Berghe was also in attendance, along with OPP officers who were hired to provide security. The cleanup took the entire day and well into the evening before it was completed. As evidence of the sheer quantity of material that was on the property, Lee Linn testified that there were 17 loads of junk taken away, in a combination of dumpsters and dump truck loads. He described the scene when he arrived as “a disaster area”.

[19] They did not take anything that would be considered to be a necessity for a house or yard, such as shovels, rakes and so on. The plaintiff was advised that if he wanted to keep anything, he should put it inside one of the buildings. However, the plaintiff said that there was no room because the buildings were already full.

[20] At one point, the plaintiff was arguing that the wood that was being removed was in good and solid condition. He pulled out a board in the presence of an OPP officer and jumped on it to prove his point. The board broke in two.

[21] Most of the wood, plastic and other debris was disposed of. The metal debris was separated and taken to a metal recycler. My review of the documentary evidence leads me to conclude that the value of the scrap metal was credited toward the final bill. This is reflected in the fact that the invoice for waste disposal from Alternative Scrap Solutions was $3,776.43, but only $2,756.60 was billed to the County from The Lawn Guy for waste disposal in their final invoice of November 4, 2009. The difference of approximately $1,000 would account for the value of the scrap metal.

[22] The final bill for the cleanup from the County to the plaintiff, which included their administration fee and the cost of hiring the OPP officers, was $10,762.31. This amount has been added to the tax roll, and will be collected whenever the plaintiff sells or mortgages his property.

[23] The plaintiff was also charged with an offence under the by-law, as provided for in s. 3.1 thereof. According to the Statement of Agreed Facts, he was found guilty on October 17, 2011 of failing to keep his property in a clean condition, and was fined $200 by Justice of the Peace Woron. He appealed his conviction, and the appeal was dismissed.

The Law and Analysis:

[24] The power of the County to do what it did in this case is clear. Under s. 127 of the Act, it may require the owner or occupant of land to clear refuse or debris from the land. Under s. 436(1) it has the power to pass by-laws giving the municipality a right to enter on the property to determine whether a by-law or order made under the by-law has been complied with. Under. S. 427, where a person fails to comply with an order that a matter or thing be done, the municipality can direct that the thing be done at the person’s expense. For that purpose, it can enter upon the land at any reasonable time, and may recover the costs of such action by adding them to the tax roll. By-Law No. 2005-127 is entirely in accord with the powers given to the County under the Act.

[25] In Robinson v. Caradoc (Township), [1996] O.J. No. 1023 (Gen. Div.), the plaintiff stored derelict motor vehicles, scrap metal and used building materials on his property in contravention of the Township’s zoning by-law. A cleanup order was issued and served on the plaintiff and the plaintiff failed to comply. In that case, statutory authority for the by-law flowed from the Planning Act, as opposed to the Municipal Act which is applicable in the case at bar, but that difference is immaterial. Both were property standards by-laws, and both provided for the right of the municipality to enter onto the land and do the work at the owner’s expense in the event the cleanup order was not complied with.

[26] Haines J. found that the plaintiff viewed the entire process with contempt and made a conscious decision to ignore the cleanup order. He said the following, at para. 20:

Having determined that the defendant Township proceeded as prescribed by law, I find, pursuant to s. 31(20)(b) of the Planning Act, that the defendants are not liable to compensate the plaintiffs for any damages which they may have sustained by reason of any action taken by the defendant Township enforcing the property standards by-law.

[27] An appeal of that decision was dismissed: 1998 18873 (ON SC), 1998 CarswellOnt 2376, 40 O.R. (3d) 684 (Div. Ct.) (Matlow J. dissenting). On that appeal, a similar argument was advanced as the plaintiff advances in this case: that although the By-law gives the County the right to remove the debris, it has no right to dispose of it, and must account to the plaintiff for the value thereof. In dismissing that argument, the majority said the following, at paras. 26 and 27:

It is argued that the right under s. 31(20) to demolish or repair does not specifically give the right to dispose of the property removed. If this is so, it is necessary to fall back on the ordinary law of bailment and determine whether the municipality as a bailee at common law acted reasonably in the circumstances.

As to the reasonableness of the conduct of the Township in disposing of the property, under the authority of the by-law or as a common law bailee if the by-law gave no power to dispose, there was a conflict of evidence. The learned trial judge who heard and saw the witnesses concluded that the Township acted reasonably. There was evidence to support his conclusion and without re-trying the case we cannot say he was clearly wrong.

[28] In my view, the power to dispose of debris removed by the County is implicit in the by-law itself. If I am wrong in that conclusion, the decision of the Divisional Court binds me to conclude that the County has the power to dispose of the debris as a common law bailee, and is subject only to the duty to act reasonably.

[29] I conclude that the County acted reasonably, not just in the manner in which the debris was disposed of, but throughout this entire saga. Extensions of the time for compliance were granted repeatedly. The County did not undertake the cleanup of the property until more than two years had elapsed from the initial inspection of the property that determined a violation had occurred. The County only took action when the plaintiff expressly stated that he was not going to clean up the property himself.

[30] As to the reasonableness of their actions on November 2, 2009, I am satisfied that the cleanup and disposal was conducted in a reasonable and professional manner. It was an enormous task, as I have already observed. To suggest that they should be required to take an inventory of each item removed and account for the value of each item is ludicrous. As the photographs reveal, the County was faced with removing piles and piles of junk. The County did precisely what one does with junk: it threw it away. To the extent that the metal refuse had some value, it was disposed of to a metal recycler and the value received was credited against the final bill.

[31] Much was made of the reference in Schedule “A” of the Order to Comply that “[m]aterials for your construction of your garage must be piled in an orderly manner”. This related to the fact that the plaintiff claimed that much of the wood and other materials were to be used in finishing the construction of a garage that he was doing in his spare time. Mr. Vanden Berghe explained that if a property owner is in the middle of an active construction project, it is permissible to stack construction materials in an orderly manner on a temporary basis during the course of construction. However, according to the plaintiff he began construction of the garage in 1992. By the time the property was cleaned up by the County in the fall of 2009, fully 17 years had elapsed. Mr. Vanden Berghe took the position that there was no active construction project underway that would have permitted the stacking of materials, and in any event the wood was weather-beaten and rotten and unsuitable for use in construction.

[32] I agree with that position. While some of the lumber was stacked in some fashion, I am not satisfied on the evidence that any active construction project was underway. The mere assertion that a 17-year-old project is still continuing does not give the plaintiff licence to hoard piles of construction materials in his yard. It is a residential property, it is not a lumber yard or a scrap yard. Furthermore, I accept the evidence of Mr. Vanden Berghe, Mr. Enzlin and Mr. Lin, supported by the photographic evidence, that the vast majority of the lumber was old, weather-beaten and rotten, and unsuitable for use as construction material.

[33] I am satisfied that the material removed from the property by the County fell within the definition of “refuse” in s. 2.10 of the by-law, which was incorporated into Schedule “A” of the Order to Comply. I reject the submission that the material removed by the County fell outside the scope of the Order to Comply.

[34] Since the actions of the County were authorized by the by-law and by the Act, and it acted reasonably in carrying out those actions, I find that it is not liable to the plaintiff for any loss he may have incurred by reason of the County having enforced the by-law and the order made thereunder. The plaintiff made a conscious decision to ignore the cleanup order. If he was of the view that this debris had realizable value of any significance, he should have complied with the cleanup order and disposed of the material himself. He is the author of any misfortune that has resulted from his default.

[35] Accordingly, the plaintiff’s claim is dismissed.

Damages:

[36] Despite having dismissed the plaintiff’s claim, it is prudent to make findings on the issue of damages.

[37] The plaintiff kept no inventory of the material piled around his yard. It would be impossible to know what was in any given pile from visual inspection, since objects were randomly mixed together and only the outside layer would be visible. However, he testified that he reconstructed a list of his property entirely from his memory, which has been filed as an exhibit. It is remarkable in its detail. The list runs to eight pages, and contains precise descriptions of each item and the quantity thereof. For example, he apparently remembers that he had precisely forty 4' fluorescent lights; forty-four squares of steel rib roofing; fifty 5" gutter hangers and screws; eighty-five pieces of 2" x 4" x 16' pieces of lumber; forty-eight 2" x 18" wooden planks; eleven 3 ½" x 3 ½" x 20' angle irons, etc.

[38] I find this evidence utterly incredible. While I do not doubt that many of the items on his list could probably be found in the piles of debris on his property, I do not believe it is humanly possible to reconstruct a list of such items with this degree of accuracy from memory alone.

[39] Judy Cayford is a law clerk who spent a great deal of time calling various suppliers and assigning a retail price to many of the items on the plaintiff’s list. She arrived at a replacement cost of $158,131. There are, however, two serious flaws with her evidence. First, it is premised on the assumption that the list provided by the plaintiff is accurate, which I have found not to be the case. Second, it is based on retail replacement value, and takes no account of the fact that virtually everything visible in the photographs is old, rusty, damaged and deteriorated.

[40] The plaintiff provided no evidence whatsoever as to the fair market value of any of the items taken, nor as to the price initially paid when they were acquired, nor as to the age of any item.

[41] The only item that might have any obvious value is the stake truck, but the plaintiff was able to retrieve that item after it was towed away. As to the rest, I am satisfied that it was, essentially, junk and had scrap value only. As scrap, the only part of it that had any realizable value was the metal, and that generated a credit of about $1,000 which reduced the amount that the plaintiff owes to the County.

[42] If the defendant had been found to be liable to the plaintiff, I would have assessed damages at the nominal amount of $10,000, as the Court of Appeal did in 1083994 Ontario Inc. v, Kotsopoulos, 2012 ONCA 143, [2012] O.J. No. 1012 (C.A.), where a landlord was held liable for wrongfully removing his tenant’s equipment, but the valuation evidence was wholly unsatisfactory.

[43] I encourage counsel to resolve the issue of costs. If they are unable to do so, I will accept brief written submissions from the defendant within 30 days, with the plaintiff’s response to follow within 15 days thereafter, and any reply within 10 days thereafter. Failing that, the issue of costs will be deemed to have been resolved between the parties.

“T. A. Heeney R.S.J.”

Regional Senior Justice T. A. Heeney

Date: July 2, 2015