ONTARIO

SUPERIOR COURT OF JUSTICE

COBOURG COURT FILE NO.: 49/13
DATE: 20151112

BETWEEN:

Ian Angus and Daphne Angus
Plaintiffs

– and –

The Corporation of the Municipality of Port Hope
Defendants

M. John Ewart, for the Plaintiffs
Kristin Musczynski, for the Defendants

HEARD: July 30, 2015

Woodley, S. J.

REASONS FOR DECISION

Overview

[1] The Plaintiffs bring this motion for partial summary judgment. The motion seeks to determine whether land, which is subject to both provincial and federal legislation that govern gravel pits and aerodromes, is also subject to a municipal by-law regulating the importation of fill material enacted for the protection of the environmental and the safety of the population.

Issues and Determination of Issues

[2] The issues to be determined are as follows:

a. Is the matter an appropriate case for determination by motion for partial summary judgment? If the answer is yes, is the court entitled to make findings adverse to those sought by the Plaintiffs with the result that partial summary judgment will be granted in favour of the Defendant?

b. Does Municipality of Port Hope, By-law No 47/2012, Municipal Site Alteration and Fill By-law (29 May 2012), have any application to the portion of the Angus property having been used as a gravel pit in accordance with the Aggregate Resources Act, R.S.O. 1990, c. A.8?

c. Does By-law 47/2012 have any application to the portion of the Angus property having been used as an aerodrome in accordance with the provision of the Canada Transportation Act, S.C. 1996, c. 10?

d. Is By-law 47/2012 ultra vires as being beyond the powers of the Municipality to impose an indirect tax?

[3] For the reasons below I find as follows:

a. The matter is an appropriate case for determination by motion for partial summary judgment. The court is entitled to make findings adverse to those sought by the Plaintiffs with the result that partial summary judgment may be granted in favour of the Defendant.

b. By-law 47/2012 does apply to the portion of the Angus property having been used as a gravel pit in accordance with the Aggregate Resources Act, R.S.O. 1990, c. A.8.

c. By-law 47/2012 does apply to the portion of the Angus property having been used as an aerodrome in accordance with the provision of the Canada Transportation Act, S.C. 1996, c. 10.

d. The issue of whether the permit fee is ultra vires as being beyond the powers of the Municipality to impose an indirect tax was raised in the Plaintiffs’ Amended Factum (but not the Plaintiffs’ Notice of Motion). In the circumstances I allowed no argument on this issue and thus make no finding with respect to this issue.

Facts

[4] The Plaintiff Daphne Angus is the sole registered owner of the subject property (Angus property), located in the Municipality of Port Hope, municipally known as 4600 A-D, 4534, 4440 and 4280 Massey Road and bordered on the west side by municipally maintained Kellogg Road. The property contains an abandoned gravel pit and an airstrip. The gravel pit was deemed abandoned in 1990 under the Aggregate Resources Act and has been under remediation with the Management of Abandoned Aggregate Properties (MAAP) program: file number NRT HO 283. The airstrip was built is the 1970’s and identified by Nav Canada as Aerodrome CTN7.

[5] The Plaintiff Ian Angus is the spouse of Daphne Angus. Both Plaintiffs reside on the subject property.

[6] In October 2006, the Municipality of Port Hope rebuilt Kellogg Road running along the west side of the Plaintiffs’ property. Ian Angus (who is not the registered owner of the property) signed a waiver with the Municipality of Port Hope for the old road materials to be placed in the gravel pit on the Angus property. The waiver indicates that Ian Angus agreed “while the Municipality is not aware of the fill material being contaminated, it is the responsibility of the undersigned [Ian Angus] to ensure that the fill material has no contamination of any kind and is suitable for the property owners’ purpose”. The Plaintiffs submit that the Municipality assured them that the old road fill would be clean fill. The Plaintiffs claim that the fill from Kellogg Road has since been tested and found contaminated. The Defendant states that it has not been provided with any proof that the fill was contaminated.

[7] In October 2011, the Plaintiffs were approached by the MAAP program and signed an authorization agreement with The Ontario Aggregate Resources Corporation (TOARC) to rehabilitate the gravel pit. This agreement determines that the pit on the Angus property is an abandoned pit pursuant to s. 1(1) of the Aggregate Resources Act, and that no licence has been in force any time after 1989. This agreement also provides that the Plaintiffs will not enter into any “agreement, easement, lease or licence concerning the Property, which may affect the Rehabilitation without the express written consent of TOARC”. Ian Angus admits that the pit has never been licenced since Daphne Angus has owned the property.

[8] In early May 2012, the Plaintiffs met with Paul Hartnett, MAAP Rehabilitation Supervisor. The project to rehabilitate the Angus property pit was potentially stalled because the MAAP program did not have the budget. Later that month, the Plaintiffs were contacted by Ashgrove Holdings to use the Angus property pit as a clean fill dump site. The Plaintiffs then contacted Paul Hartnett at TOARC and Ron Warne, Director of Planning Development Services for the Municipality of Port Hope. The Plaintiffs allege that both individuals gave approval for the Plaintiffs to accept the fill from Ashgrove Holdings but did not produce any written consent from either TOARC or Ron Warne. Ashgrove Holdings provided tests indicating the fill was clean and commenced filling the pit.

[9] On May 29, 2012, the Municipality of Port Hope passed By-law 47/2012, in accordance with s. 142 of the Municipal Act, 2001, S.O. 2001, c. 25. The Defendant submits that the goal of By-law 47/2012 is environmental protection and the safety of the Port Hope population. The purpose of the by-law is to regulate fill being brought into the municipality that may be contaminated through controlled permitting.

[10] By-law 47/2012 is similar to fill by-laws in neighbouring municipalities and the Defendant submits it was created after months of research and consultation with various stakeholders, including the Municipality of Clarington and the Ganaraska Region Conversation Authority.

[11] The public was given notice of the draft legislation in the local newspapers, provided with an opportunity to give comments and notified after its enactment.

[12] The Plaintiffs submit that By-law 47/2012 is draconian and was enacted to prevent the Plaintiffs from receiving fill without providing a fee to the Municipality. The Defendant denies the allegation. Given the extensive and specific environmental concerns that face the Defendant I cannot accept the Plaintiffs’ submission in this regard.

[13] On June 13, 2012, the Plaintiffs became aware of the by-law when Roy Foster, Rural Foreman for the Municipality of Port Hope, observed trucks depositing fill on the Angus property. Roy Foster informed Ian Angus that a permit was required for this work pursuant to By-law 47/2012.

[14] The Plaintiffs submitted an application for a fill permit. On the application, the Plaintiffs noted, that the work on the Angus property was exempt from the by-law because it was commenced prior to the enactment of the by-law and the rehabilitation of the pit was in accordance with the MAAP program under TOARC.

[15] Peter Angelo, Director of Works and Engineering for the Municipality of Port Hope, reviewed the Plaintiffs’ fill permit application and determined that it was incomplete. The Defendant contacted the Ministry of Natural Resources (MNR) who advised the Defendant that there was no licenced gravel pit on the Angus property and that it was the MNR’s understanding the Angus property gravel pit was not part of the MAAP program.

[16] The Plaintiffs were informed of the alleged deficiencies in their fill application and in response sent the Municipality of Port Hope a copy of the MAAP remediation site plan (seeking an exemption).

[17] The Defendant recalls receiving this document from the Plaintiffs, but does not recall taking any action to contact MAAP, TOARC or the Plaintiffs to discuss the MAAP remediation site plan.

[18] On June 20, 2012 the Defendant issued an Order to Discontinue Activity pursuant to s. 444 of the Municipal Act, 2001 and served the Order on the Plaintiffs.

[19] The Plaintiffs are unable to comply with the Work Order as they allege the previous fill received from the Municipality Kellogg Road tested positive for contamination. Accordingly, the Plaintiffs cannot certify that fill in the pit is uncontaminated.

[20] Due to the Plaintiffs non-compliance with the Work Order, the Defendant laid charges against the Plaintiffs pursuant to ss. 23 and 24 of the Provincial Offences Act, R.S.O. 1990, c. P.33.

Procedural History

[21] The Plaintiffs brought an action against the Municipality of Port Hope:

• For damages sufficient to compensate the Plaintiffs for the cost of removing the contaminated soil in the gravel pit.

• For a declaration that By-law 47/2012 has no application to the gravel pit or the aerodrome on the Angus property.

[22] The Defendant did not issue a Statement of Defence within the required time period and was noted in default.

[23] The (default) Order of Gunsolus J. dated August 30, 2013 determined that By-law 47/2012 has no application to the portions of the Angus property that have been used as a gravel pit in accordance with the Aggregate Resources Act and as an aerodrome in accordance with the Canada Transportation Act.

[24] The Defendant brought a motion to set aside the noting in default and the (default) Order of Gunsolus J. Upon hearing the motion, O’Connell J. held that the Order of Gunsolus J. and the underlying noting in default be set aside. In his reasons, O’Connell J. stated that there is an arguable nature of the case on the merits. His Honour concurred with the Defendant that there are important facts in dispute between the parties, and this case is not clear cut or as simple as the Plaintiffs suggest.

[25] The Plaintiffs bring a motion for Partial Summary Judgment.

(continued exactly as in the source text…)

______________________________Woodley, S. J.

Released: November 12, 2015