CITATION: Desmarais v. Fort Erie (Town), 2016 ONSC 1750

COURT FILE NO.: 9882/14

DATE: 2016/03/10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Raymond Desmarais and Tammy Franzen

Terrance Green, for the Applicants

Applicants

• and -

The Corporation of the Town of Fort Erie

Sara J. Premi, for the Respondent

Respondent

HEARD at Welland, Ontario:

February 9, 2016

The Honourable Justice T. Maddalena

JUDGMENT

THE ISSUES

Issues of the Applicant

1Both applicants, Raymond Desmarais ("Desmarais") and Tammy Franzen ("Franzen") bring an applicant seeking a permanent injunction preventing the Town of Fort Erie ("the Town") from removing property or chattels from the property currently owned by the applicant Franzen and municipally described as 2327 Dominion Road, Fort Erie, Ontario.

2Further, the applicants submit that the respondent Town failed to properly serve Desmarais and, as a result, Desmarais was deprived of his appeal rights. Thus, this application cannot proceed.

3The applicants submit further that the collection of antique vehicles on the property predates the Town's 2008 Property Standards By-Law, thus constituting continued use and a legal non-conforming use in their favour.

4Finally, the applicants submit that the Town cannot regulate the private property of the applicant, given that the property was conveyed to the applicant Franzen from an original Crown Patent.

The Issues of the Respondent Town

5With respect to the issue of service, the Building Code Act 1992, S.O. 1992, c.23, ("BCA") requires service of an order on the owner or occupant. Franzen was at all material times the owner of the property. Accordingly, the owner was properly served in accordance with the legislation and chose not to appeal.

6With respect to the issue of legal non-conforming use or continued use, the Town submits that the legal non-conforming rights are only established through zoning by-laws under the Planning Act, R.S.O. 1990, c.P.13, as amended, ("PA") and not under the BCA. Therefore, non-conforming use is applicable under the PA and only to zoning by-laws. Non-conforming use and/or continued use does not apply to Property Standards By-law. According to the respondent Town, this case is not under the PA but under property standards legislation.

7With respect to the issue of the Crown Patent, the Town submits that a Crown Patent is an originating instrument of conveyance from the Crown to a private individual. There is nothing in the Crown Patent which displaces the right of the province or the Town to enact appropriate legislation or municipal standards by-law.

8The Town further submits that if the applicants' position is that a Crown Patent has paramountcy over the Town's ability to regulate private property, then this becomes a constitutional issue with the proper notices to be provided to the Attorney General for Canada and Attorney General for Ontario, and this has not been done by the applicants.

9The Town further submits that the injunction has disputed facts and, therefore, not properly brought as an application.

10Further, the appeal process for the applicant Franzen has long passed and she cannot now collaterally attack the order.

BACKGROUND

11The property situated at 2327 Dominion Road, Fort Erie was at all material times legally owned by the applicant Franzen.

12Franzen did not reside at the property, but had a number of tenants there at various times, including the applicant Desmarais.

13In July 2014, the property standards officer of the Town received a complaint related to debris, garbage, and unlicensed derelict vehicles on the property owned by Franzen. On July 30, 2014 the Town's property standards officer attended the property, met Desmarais there, and observed "14 vehicles in the front yard all of which were unlicensed and derelict". He also noticed miscellaneous debris in the yard and more unlicensed derelict vehicles in the rear yard.

14The applicant Desmarais stated that he used the back yard to store a collection of antique and old vehicles on licensed trailers that he planned on bequeathing to his children. He maintained at all times that his was a collection of antique and old vehicles, which was his hobby and not used for commercial purposes or resale.

15On July 31^st^ 2014, the municipal enforcement officer of the Town issued an order to comply to the legal owner of the property, Franzen.

16The order to comply required as follows:

• Unlicensed, inoperable, derelict vehicles to be removed;

• Ordered all garbage and debris to be removed, in particular numerous piles of scrap metal, vehicle parts, equipment and all other refuse on the property.

17The time for compliance with regard to the above-mentioned order was by August 31, 2014.

18This order was served by registered mail upon Franzen. The registered mail was not picked up. However, the order was also served by regular mail to Franzen's known address at Breck'n Ridge located at 3551 Garrison Road, Fort Erie, Ontario.

19The order was not appealed to the Property Standards Committee and therefore, as indicated within the content of the order, it became final on August 19, 2014.

20On September 4, 2014, the Town's by-law officer attended on Franzen's premises on Dominion Road to check for compliance. At that time, the by-law officer noted 18 vehicles remaining in contravention of the order, as well as piles of debris. The officer took a number of photos which have been entered into evidence in this proceeding.

21The Town's by-law officer re-attended on September 8, 2014 to again ascertain the approximate number of vehicles on the premises and to assist the Town to prepare the tender for cleanup of the property. Photos again were taken, and entered into evidence.

22Town by-laws requiring yards within the Town to be maintained in a neat and clean condition and free from refuse and debris, etc., have been in place in the Town since 1978.

23The applicant Desmarais submits that the property has on it a collection of "old and antique" vehicles which has been continuously on the property for over 20 years and predated the enactment of the Property Standards By-law 186-08, which was enacted in 2008.

24The Town states that By-law 186-08 was predated by By-law 183-98, which was in turn predated by By-law 123-96. By-law 123-96 was predated by By-law 940-78, extending back to 1978.

25The by-law to prescribe standards for maintenance and occupancy of property within the Town is enacted pursuant to the BCA which enables the council of a municipality to prescribe standards for maintenance and occupancy of property in a municipality. The BCA states, in part, as follows:

Standards for maintenance and occupancy

15.1 (3) The council of a municipality may pass a by-law to do the following things if an official plan that includes provisions relating to property conditions is in effect in the municipality or if the council of the municipality has adopted a policy statement as mentioned in subsection (2):

1. Prescribing standards for the maintenance and occupancy of property within the municipality or within any defined area or areas and for prohibiting the occupancy or use of such property that does not conform with the standards.

2. Requiring property that does not conform with the standards to be repaired and maintained to conform with the standards or the site to be cleared of all buildings, structures, debris or refuse and left in graded and levelled condition.

26It is the Town's position that the Town has had property standards in place since 1978 requiring that yards be maintained in a neat and clean condition, free from refuse, debris, rubbish, automobile wrecks, derelict unlicensed vehicles, scrap metal parts and equipment all over, loose debris and refuse.

27Desmarais states that the vehicles are antiques or collectables and all on trailers.

28The order was served under the provisions of the BCA, and provided notice to the owner of her rights to appeal to the Property Standards Committee. The BCA s.15.2(3) deals with service and posting of the order and states as follows:

"The order shall be served on the owner of the property and such other persons affected by it as the officer determines and a copy of the order may be posted on the property."

29Franzen did not appeal so that the order became final and binding August 19, 2014.

30The applicants have failed, according to the Town, to comply with the order.

31The Town was in the process of scheduling a cleanup when the applicants commenced this application for an injunction and other relief.

LAW AND ANALYSIS

Service of the Order to Comply

32The BCA permits a municipality to pass by-laws to prescribe standards for maintenance of property (s.15.1(3)).

33Section 15.2(3) of the BCA provides for service and posting of the order to comply. Section 15.3(1) of the BCA provides as follows:

"An owner or occupant who has been served with an order made under subsection 15.2(2) and who is not satisfied with the terms or conditions of the order may appeal to the committee by sending a notice of appeal by registered mail to the secretary of the committee within 14 days after being served with the order."

34It is clear from the evidence that Franzen is the registered owner of the property. She does not reside there, but leases the property to tenants. Franzen did not appeal.

35The evidence supports that the property was subject to prior enforcement by the Town. Further, each time an order to comply was issued, it was directed to the legal owner, that is, Franzen. She did not appeal those orders nor the current order.

36At the time of the issuance of the order, there was no evidence that Desmarais was known to the Town.

37The evidence does support that Desmarais had actual notice of the order based on discussions with the Town officer, Matt Richardson, on July 30, 2014. When Richardson attended the property on that day he met Desmarais there.

38Franzen, further in her affidavit, states that she received the order to comply in the mail in the beginning of August 2014. She further states in her affidavit she did not inform Desmarais until his return from Newfoundland at the beginning of September 2014.

39It is undisputed evidence that the order clearly indicates in bold on the face of the order that the deadline for appeal was August 19, 2014.

40I find Franzen was the owner of the property and served in accordance with the legislation. She did not appeal. It was clearly her choice not to advise Desmarais of the order until after the expiration of the appeal period.

41I find no legal requirement to serve Desmarais with the order. Thus, the order was properly served and in compliance with the legislation. Desmarais is not the owner of the property. The Town office has discretion, within the legislation, as to whom to serve.

42Based on all of the evidence, I find no basis in law upon which Desmarais can insist or claim that he ought to have been served with the order to comply.

Legal Non-conforming Use

43The applicants claim that a vintage vehicle collection and storage was in effect on the property for over 20 years, thus predating the 2008 Property Standards By-law which came into effect January 1, 2009.

44Therefore, this continuous usage became a legal non-conforming continuous use.

45Accordingly, the applicants claim this use cannot be extinguished by the Town's current Property Standards By-law.

46I do not agree. Firstly, legal non-conforming rights and continuous use rights arise from and are established through zoning under the PA.

47There is no comparable in the BCA. Thus, the legal non-conforming usage is not established under the BCA and property standards by-laws which flow from the BCA.

48The PA provides as follows in s.34(9):

Excepted lands and buildings

34 (9) No by-law passed under this section applies,

(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; or

(b) to prevent the erection or use for a purpose prohibited by the by-law of any building or structure for which a permit has been issued under subsection 8(1) of the Building Code Act, 1992, prior to the day of the passing of the by-law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under subsection 8 (1) of that Act.

49Section 34(9) of the PA applies to zoning by-laws. It does not apply to property standards by-laws. This case at issue relates to property standards and not zoning issues. The current case does not deal with zoning prohibitions, but rather with property standards, that is, it addresses the condition of property rather than its use.

50In the alternative, even if zoning and legal non-conforming usage were at issue, the applicants' evidence, I find, does not support the existence of vintage vehicles stored on trailers as predating the zoning by-law.

51Property standards by-laws have been in effect in the Town since 1978. There has been consistent prohibition of storage of abandoned, wrecked vehicles along with other debris, old refuse, and other junk since that time.

52The photos tendered into evidence do suggest derelict vehicles, piles of rubbish and debris, old tires and scrap metal throughout the property. There is no evidence of vintage and antique vehicles on trailers.

53I find the evidence does not support any legal non-conforming, continuous use provisions of the PA.

54The storage of such material on the property is not established use, and there is no legal basis to establish this use on the property.

55In the case of White v. Vaughan (City), [1998] O.J. No. 1952, the court held in paras. 11 and 12 as follows:

11 As to the contention that a non-conforming use status protects the property from the requirements of a property standards by-law under s.31, there are two basic impediments to such a finding. First, s.34(9) applies only to by-laws passed under s.34, ie. zoning by-laws. It does not purport to apply to property standards bylaws passed under s.31. It applies to protect the purpose for which a property is lawfully used at the time a zoning by-law which otherwise would prohibit that use is passed. Its purpose and effect are to preserve from zoning prohibition the existing use of and improvements to a property which pre-exist passing the zoning prohibition. In this case, I am dealing not with a zoning prohibition in a by-law passed under s.34 of the Planning Act or its predecessor but with a by-law passed under s.31 which addresses the condition of the property rather than the purpose for which it has been used.

12 Secondly, even if non-conforming use protection were in issue here, there is no evidence that vehicles were stored on this property in November 1960 when the zoning by-law was passed or that their mere presence is sufficient to establish a use for purpose of the Planning Act. …

56The applicants refer to the case of Georgian Bluffs v. Moyer, 2011 ONSC 2481. In the Moyer case, prior to 1978, the Township had no land use legislation in place. Further, in 1984 the Township decided to regulate land use and enacted a Comprehensive Zoning By-law and a Property Standards By-law. The court found, as outlined in para. 6 of the decision, that neither of these pieces of legislation was applicable to the Moyer property.

57Firstly, in Moyer, the court found that any land use regulation was subject to the already existing uses of the property, i.e. non-conforming usage. Thus, when the Township passed their zoning by-law, it did not change the legality of Moyer's existing use of the property, which had been in existence since the 1930s when Moyer's parents owned the farm property.

58The court also found in Moyer that the Property Standards By-law was inapplicable to Moyer's farm property. In paras. 18 and 20 respectively, the court stated as follows:

18The Property Standards By-law, section 7.1, is unenforceable against the Moyer property. While the municipality had the right to define property standards for the land in its jurisdiction, it could not enact legislation, in the guise of property standards, to exclude prior existing uses. By applying section 7.1 of the Property Standards By-law, the Township was attempting to change Mr. Moyer's use of the property. It could not do so.

20The Ontario Building Code would only be applicable to the Moyer property if the Township had an Official Plan, if the Township adopted a policy statement containing provisions relating to property conditions and if the Township had passed a By-law pursuant to section 15.1 of the Building Code to define property standards. As none of these events had occurred, the provisions of the Building Code could not have been relied upon by Mr. Klingenberg as giving him authority to act as he did.

59Thus, the trial judge dismissed the Township's claim for an order requiring Moyer to clean up his property, since it had qualified as a legal non-conforming use with respect to the zoning by-law relied upon by the Township.

60In the Court of Appeal decision, cited as Georgian Bluffs (Township) v. Moyer, 2012 ONCA 700, the Court found in para. 3 that the appellant (Moyer) had established "that his use of the property qualified as a legal non-conforming use with respect to the by-law provisions relied on by the Township".

61I find that the current case is distinguished from Moyer in three main areas. Firstly, the Property Standards By-laws predate the existence of old vehicles and other debris on the property. Secondly, no evidence of legal non-conforming use under the PA has been advanced on behalf of the applicants. Thirdly, there is no evidence to support a collection of antique, vintage cars on trailers that are licensed. Rather, the evidence supports the existence of refuse, debris, junk and derelict vehicles.

62Finally, I find the Town's Property Standards By-law is properly enacted.

63In conclusion, I am persuaded that the non-conforming usage or continuous use, for all of the aforementioned reasons herein, is not applicable to the current case.

Crown Patent

64The applicants submit that the Municipal Act does not and cannot confer on the municipality the ability to regulate private property.

65The applicants state that the municipalities are only able to implement property standards by-laws on properties that are owned by the municipality. The applicants state: "The order to remove property is not enforceable because a municipality, like any natural person, does not have any right, title or interest in private property and therefore cannot demand that the private property owner clear their property."

66According to the applicants, the Town cannot create by-laws that violate a private property owner's right to use his or her property as he or she deems fit.

67The applicants further submit that the Town is further restricted by the fact that the applicants hold Crown Patents regarding the property in question. The applicants submit the Crown Patent has no restrictions on what the applicants can bring onto the property.

68I do not agree with the applicants' interpretation of the powers of a municipality or of the significance of a Crown Patent. The Crown Patent is an instrument by which land is conveyed by the Crown to a private individual or members of the public.

69Crown Patents are found all over the Province of Ontario. There is nothing in the conveyance from the Crown which prevents properly enacted provincial legislation, or suggests that a Crown Patent has paramountcy over a municipality's ability to regulate private property.

70Pursuant to the Constitution Act, 1867 ss. 92(13) and 92(16), the Province can control private property. Under "EXCLUSIVE POWERS OF PROVINCIAL LEGISLATURES" it states:

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

93. Property and Civil Rights in the Province

94. Generally all Matters of a merely local or private Nature in the Province.

71Further, there is nothing in the Crown Patent which suggests government cannot legislate that municipalities have regulatory powers. In the case of R. v. Mackie, [2012] O.J. No. 4718, (Ont. C.A.), para. 4 states as follows:

4. The appellant says that the appeal judge below (and, inferentially, the trial judge as well) misinterpreted s. 92 of the British North America Act ("BNA Act"). He argues that s. 92 does not afford any authority to the provincial legislatures to legislate with respect to private – as opposed to public – property. Further, he contends that the province's legislative competency under s. 92 is constrained by, and subordinate to, the contractual rights of a private landowner under a Crown Patent regarding land.

72Further paras. 5 and 8 state as follows:

5. There are numerous difficulties with this argument. First, the applicant pointed to no authority during oral argument in support of his interpretation of s. 92 of the BNA Act. Second, in effect, the applicant argues that to the extent that provincial legislation pertains to the regulation of both private and public land – like the Niagara Escarpment Planning and Development Act, R.S.O. 1990 c.2 ("the NEPD Act") – such legislation is ultra vires the legislative competency of the province. However, no challenge to the constitutional validity of the NEPD Act was brought in this case, nor was any notice of constitutional question served on the Attorney General for Ontario, as required to raise such an argument. Finally, at the end of the day, I agree with the Crown's submission that the authority of the province to control activities on private land is derived from ss. 92(13) and 16 of the BNA Act. As this court observed in Hamilton Harbour Comm. V. Hamilton, [1978] O.J. No. 3555 (C.A.), at para. 57, "legislative authority to control the use of land generally undoubtedly belongs to the Province under s.92 of the B.N.A. Act within head 13 … or head 16 …".

8 Perhaps more importantly, however, nothing in the language of the Crown Patent itself or elsewhere in the evidentiary record is there support for the contention that the Crown Patent and the rights conferred under it displace otherwise validly enacted provincial legislation, like the NEPD Act, regulating land use.

73The applicants maintain that any property standards by-laws implemented on private property violate the Building Code, the Criminal Code, the Planning Act, and the Municipal Act. I do not agree for reasons already referred to. Further, any such challenges by the applicants would require proper notice to the Attorney General for Canada and for the Province of Ontario, which has not been done.

CONCLUSION

74The application is dismissed.

COSTS

Unless otherwise agreed, costs submissions may be made in writing and are limited to three pages, plus a bill of costs. The Town's submissions are due by April 1, 2016 and the applicants' are due by April 22, 2016.

Maddalena J.