Court File and Parties
Norfolk County 2016, ONSC 4292 Court File No. 190/15
SUPERIOR COURT OF JUSTICE
B E T W E E N :
STEVEN FRED BUEHNER and ANITA MARIA BUEHNER Applicants
- and -
THE CORPORATION OF NORFOLK COUNTY Respondent
Reasons for Judgment
BEFORE THE HONOURABLE JUSTICE T. SKARICA on June 27, 2016, at SIMCOE, Ontario
APPEARANCES : N. Smith Counsel for the Applicants M. Abradjian Counsel for the Respondent
MONDAY, JUNE 27, 2016
REASONS FOR JUDGMENT
All right. In the matter of Stephen Fred Buehner and Anita Maria Buehner, Applicants, and the Corporation of Norfolk County, Respondent.
Overview
In a less complicated era, the local police needed a firing range for a short time to update their officers’ firearm certifications. The police found an abandoned pit suitable for their use. No contracts, leases were ever signed. There was a handshake agreement with some unknown and unidentified county official. The local community said nothing. The noise and police conduct was not questioned or objected to at that time. Over the years, however, both the police firing range and the farming operation next to it became more sophisticated and are now in conflict. The question, or the issue in this matter is quite simple, should the firing range operation continue? And that is the ultimate determination that must be made.
Issues
One: Was the firing range, when it started to operate in compliance with the local bylaws in effect at the time?
Two: Has the firing range grown in intensity in terms of it’s impact on the community so as to render any acquired right illegal?
Dealing first with issue number 1, the initial legality of the firing range.
Facts
Sometime in the 1980s, OPP Officer Norm Barnes decided he was in need of a shooting range at a municipally owned gravel pit and works yard. I’ll refer to it as the pit. He built six targets which are now the north range with limited fencing, signage, and no accessory structures. Officer Barnes had no formal application, lease, payment arrangement or written permission. He simply had approval and a handshake from a conservation officer from Haldimand-Norfolk who he does not name and he does not know the name – see paragraph 5 of his affidavit of April 14th, 2016. (I’ll refer to it affidavit number 1.) It is found in the responding application record at tab 1. And see also page 36 of the cross-examination of Norm Barnes at tab 4 of the cross-examination transcripts of the respondent’s witnesses brief. A crucial issue is: when did this shooting operation begin? In paragraph 8 of his affidavit number 1, Officer Barnes swears that the pit operation began in May 1984. At paragraph 9, he indicates that in May, June, first week of July 1984, the firearms training took place Monday through Friday, 9 a.m. to 11 a.m. and 1 p.m. to 3 p.m. Night shooting took place in October of 1984. In the cross-examination of Norm Barnes on affidavit number 1, see tab 4 of the cross-examination transcripts of the respondent’s witnesses brief, which took place on May 11th, 2016, at pages 5 and 6 of that cross-examination, Officer Barnes indicates that the pit shooting range operation was established probably in the fall of 1984. However, later in the cross-examination, at page 23, he changes that evidence after being confronted with his affidavit dated July 2nd, 2014 (I’ll refer to that as affidavit number 2) wherein he indicated that the firing range was established in 1985 due to the cancellation of another range in 1985. See paragraph 3 of affidavit number 2 and, which is attached as Exhibit 2 to Norm Barnes’ cross-examination. Officer Barnes testified at page 26 of the cross-examination that there was no shooting until 1985. At page 29 of the cross-examination Officer Barnes testifies there was, there were no evening shoots for the first four years of the pit. This is in contravention to his affidavit number 1 wherein at paragraph 9 he indicates night shooting took place in October of 1984. How could that be, regarding the night shooting in 1984, when Officer Barnes testifies at some point that the shooting range was not even operational until 1985 and that there was no shooting until 1985? At page 34 of the cross-examination, Officer Barnes admits he was wrong in that affidavit, that night shooting, and this was affidavit number one, that night shooting took place at the Bonnie Heath pit, or the pit, in October 1984. Norm Barnes swore a third affidavit. It appears at tab 7 of the responding application record. Paragraph 2 indicates that Officer Barnes documented his activities on a daily basis, which is normal for police officers. Notes are included for November 9, 15, 21, 27 of 1984, and January 23 of 1985. The actual notes indicate the firearm training took place in Simcoe but does not detail whether they took place at the pit or at a private indoor range that was being used in November of 1984. Officer Barnes said that a firearm session took place in January 23rd, 1985, and it was at the pit. The actual notes say, the actual note indicates that, says, Simcoe, just like the notes in November/84 with reference to the private indoor training. More troubling, where are the notes for the spring training that took place supposedly either in May, June, July of 1984 and 1985 and 1986 and ongoing until 1988 as was indicated in his affidavits, and affidavit number 1 at paragraph 9, or May, June, July of 1985 - see page 29 of his cross-examination, and affidavit number 2 at paragraph 2. Also there’s a complete lack of notes for the supposed October 1984 night shoot which was referred to in paragraph 9 of affidavit number 1. Officer Barnes also swore to other contradictory evidence in his cross-examination. For example, in affidavit number 2, at paragraph 3, Officer Barnes indicates he can recall the pit as being established in 1985 as quote, “The OPP was required to vacate another location near Duff’s Corners in Hamilton and this new range at the Bonnieville Heath Pit was required to hold a shooting competition that year.” At question 242 through 249 of the cross-examination at pages 40 through 41, Officer Barnes testifies that there were never any shooting competitions at the pit and that paragraph 3 in that affidavit is wrong. Returning to affidavit number 1, at paragraph 6, Officer Barnes indicates he visited several neighbours at the Bonnie Heath pit to find out if there were any objections to firearms training and he received no negative feedback. In the cross-examination, Sergeant Barnes admitted he only, or Officer Barnes admitted he only talked to one neighbour. His sergeant talked to the neighbours and Officer Barnes sat in the cruiser. See questions 250 through 260 at page 40 through 41 of the cross-examination.
Further inconsistencies are detailed at Appendix 1 of the applicants’ factum and there is no need to canvass further other inconsistencies.
In my opinion, given the lack of notes, contradictions in dates and details of what occurred at the pit during the 1980s, and perhaps due to the lapse of time, I find that Officer Barnes’ evidence to be neither reliable nor credible and it is dangerous to rely on it without further confirming reliable evidence.
Another OPP officer, Officer Penman in his affidavit - see Exhibit 3 of the Norm Barnes’ cross-examination, swore that he began his service in 1985 and attended at the pit from, “from about 1986 up to the present date.” No date in 1986 is given. No notes are referred to or put in as an exhibit. The crucial date here is August 5, 1986. And this evidence is not helpful to ascertain what date in 1986 the pit was being used, particularly given the affidavit number 1, affidavit number 1 evidence of Norm Barnes regarding conflicting evidence as to when night shooting started at the pit. He says initially in the first year of shooting which would be October 1994 [sic], see paragraph 9 of his, of affidavit number 1 of Norm Barnes, or not until four years later.
The respondent asks me to rely on the affidavit of James Evans as a police officer with the Haldimand Norfolk Regional Police force. I’ll refer to that force as the Regional force from hereon in. Officer Evans indicates in his affidavit, dated April 15th, 2016, see tab 3 of responding application record, that “in or around 1986 or 1987” he began to search for another location for firearms training. In paragraph 6, Officer Evans testifies that from 1986 or 1987, the Bonnie Heath pit was used for firearms training for Regional officers. Again, this affidavit does, on its own, not assist whether the pit was operational and in use before that crucial date of August 5th, 1986. Respondent’s counsel seeks to bootstrap the Evans’ evidence with the Norm Barnes’ evidence found in the cross-examination of Norm Barnes at page 13 through 14, at question 76 through 80 – see tab 4 of the cross-examination transcript of the respondent’s witnesses brief, wherein Mr. Barnes testifies the Regional police came into the range “probably two years after it was operational” and that he was approached “probably maybe in the spring of 1986.” At page 15, question 86, Officer Barnes says it could have been three years and doesn’t remember. “It’s possible it could be three years.” Again, Officer Barnes cannot say for sure when the Regionals got there. As I have previously indicated, Officer Barnes’ evidence is not reliable or credible. Placing an exact date in Officer Evans’ estimate of 1986, 1987, requires his evidence to be linked to Officer Barnes’ evidence which is neither reliable nor credible as I have indicated. This is like putting a leaky structure on top of a cracked foundation and saying that the addition of the two weak structures has created a firm and reliable structure. Further, I think it is safe to say that Officer Evans is required to make notes of significant developments at his workplace. Where are his notes? There are none attached to his affidavit that I could find: no notes as to when his search for an alternate firearm training site began, no notes as to what neighbours he spoke to or when. And no notes as to exactly when in 1986 or 1987 the Regional range was established.
At tab 4 of the responding application record is the affidavit of John Ernst, who indicates that he started the lawn business in 1983 and saw the OPP at the pit in around 1985 or 1986.
At tab 2 of the responding application record is the affidavit of Earl Watson. At paragraph 5 of the Watson affidavit, Mr. Watson testified that the OPP began to use the pit as a firing range in the early 1980s and continued to complete their firearms training at the pit until he moved in 1994.
Zvonko Horvath in his affidavit at tab 6 of the responding application record testified in paragraph 3 that the Regional police have used the pit since 1987.
Patricia Brewer testified in her affidavit, at paragraph 4, that her daughter was born on August 13, 1986, that six days later she was strolling with her daughter for the rest of the summer and the fall of 1986 and there was no shooting by the police in the pit up into and during that time. She heard shooting at the pit in the fall of 1987. In her cross-examination at page 13, she indicated that she thinks the shooting didn’t start until at least 1990.
Gertrude Vandenhurk, mother of the applicant, Anita Buehner, indicated in her affidavit at tab 5 of the application record, paragraph three, that her daughter was married on October 8th, 1986; soon after which time she spent six weeks in hospital and walked in the pit area thereafter. In the summer of 1987, she heard occasional gunfire of short duration and stop walking near the pit. In her cross-examination, at page 8, she testified she noticed the gunfire in 1987 and thinks it could’ve started before but she is not sure.
Douglas Steinhoff, at tab 6 of the application record, swore in his affidavit at paragraph 5 that he began to hear gunfire at the pit “definitely after 1986.” In his cross-examination at pages 5, 7, 9 and 10, Mr. Steinhoff testified that he first heard gunfire from the pit in the late 80s, 1987, 1988, and it was not very often at that time.
Robert Brewer, in his affidavit at tab 4 of the application record, at paragraphs 4 and 5, indicates the shooting started after August 13, 1986, and in the fall of 1987. Robert Brewer testified in his cross-examination at pages 6 and 7 that the shooting at the pit could’ve started as late as the 90s and indicated it would have to be at least 1988 and possibly before that on a diminished scale.
Steve and Anita Buehner, at page 23, paragraph 5 of their affidavit at page 2 of the application record, indicate that the police shooting started in 1987 at the pit. However Steven Buehner, in his cross-examination indicated at page 5 and 6 that he has no specific recollection of when the police established the fire range but it could not have been the early 80s.
Fred Homeniuk, in his cross-examination at pages 9 through 10, was not sure when the shooting started as he was working and did not notice it until 2002.
Anita Buehner, at page 18 of her cross-examination indicated she could not recall when the police started using the pit for open air shooting.
Conclusion regarding the facts relating to issue 1
There are no exact dates regarding the negotiation, time, or anticipated start times of the police shooting range at the pit in any leases, contracts, memoranda of understanding or any documentation at all between the municipality and the police services. In fact, there are no leases, contracts, or memos of understanding between the municipality and the police at all. The negotiated start date of the police shooting was done by Norm Barnes on behalf of the police and an unnamed person on an unspecified date from the municipality. The compilation of all the evidence establishes that the exact start date of the police shooting range has been lost in the vagaries of uncertain memories in the mist of the past distant somewhere in the last 30 years.
The respondent has asked me to look at all the evidence in its totality and not at the individual pieces. Having reviewed all the affidavits and cross examinations, I have come to the conclusion that the totality of the evidence is that the pit commenced to be used as a police firing range sometime in the mid-1980s, from a range of somewhere between 1984 at the very earliest to 1987 at the very latest. On the evidence before me, the respondent, on a balance of probabilities, has failed to prove that the police had commenced the pit as a police firing range before August 5, 1986. The evidence is clear that from 19, from August 5, 1986 onward the governing bylaws were comprehensive Bylaw 1-NA86, effective August 5, 1986, followed by comprehensive bylaw NN1-2000, effective November 10th, 2000, and Norfolk Bylaw 1-2-2014, effective July 15th, 2014. The respondent had hoped the evidence would establish that the police shooting range at the pit had commenced prior to August 5th, 1986, as the bylaw that was in effect at that time, (and that was prior to August 5, 1986), Bylaw Number 1173 from the Township of Townsend, zoning bylaw, that bylaw has vaguer provisions addressing this issue and the respondent had argued that Bylaw Number 1173 would have permitted the use of the pit for the range.
Dealing with the Law
From the evidence as I have found it, the respondent has failed to prove that the shooting range commenced operation at the pit before August 5th, 1986, and accordingly Bylaw Number 1173 was not in effect at the time the shooting range commenced. Accordingly, comprehensive Bylaw 1NA86, effective August 5th, 1986 and in force to November 9th, 2000, was the bylaw in effect on the evidence as I have found it. As I have indicated, the respondent has failed to prove that the police shooting range commenced operation before August 5th, 1986.
An outdoor firearms facility is not a permitted use in the bylaws that were passed from August 5th, 1986 onward. Section 6(1) of the original bylaw, Bylaw 1NA86, outlined uses that may be permitted in any zone and a firing range is not included in the enumerated uses. This conclusion also applies to subsequent bylaws, NW1-2000, Section 3.1, and Norfolk Bylaw 1-2-2014, Section 3.33.
Conclusion regarding Issue Number 1
The firearms training site commenced at the pit sometime between 1984 and 1987 and the respondent has failed to prove on a balance of probabilities that the police commenced that use prior to August 5th, 1986. After August 5th, 1986, it was clearly not a useful, not a lawful use to commence a police firing range per the bylaws that were then in effect. Accordingly, the OPP, just like every other citizen, should have engaged the planning process and assessed it’s land use under the planning policy regimes.
Even though it is not necessary to go further, I will make some brief comments regarding Section 4.11 of the Townsend Bylaw Number 1173. Even if the shooting training site was operational in 1984 up to August 5th, 1986, which fact I found that it has not been established on a balance of probabilities, I would find it still to be an unlawful use under the bylaw in effect prior to August 5th, 1986. Pursuant to bylaw, Townsend Bylaw Number 1173, that was in effect from April 2nd, 1968, to August 4th, 1986, Section 4.11 of the Bylaw 1173 makes an exemption for a “any buildings or structure for the purposes of public service.” I agree that a shooting range is not a public service. Public service must mean public services such as utilities, parks, municipal infrastructure. Otherwise, the police could have put the shooting range next to a hospital, daycare, or even in downtown Simcoe during rush hour. In interpreting municipal bylaws, any interpretation to avoid an absurdity must prevail. See Rizzo v. Rizzo Shoes Limited, reported at 1998 SCC 837, [1998] 1 S.C.R. 27. Further, Section 4.11(c) stipulates that any building erected under that section must be designed and maintained in general harmony with residential buildings of the type permitted in such district. I believe it to be a matter of common sense that shooting ranges proximate to residential homes could not be considered to exist in general harmony with those homes if shooting bullets are capable of being shot and landing near those homes. Exhibit 2 of the supplemental record contains the affidavit of Anita Buehner and Steve Buehner. At pages 23 through 25 of the supplementary record are pictures of spent bullets and page 25 shows the location of those bullets, including two very near to their residential home where would be expected to have adults and children play, particularly since the Buehner farm is being used to accommodate a tourist business. Paragraph 8 of the Buehner affidavit indicates complaints were made to the OPP and an investigation ensued but the results were not released, or all of the results were not released. The respondent argues that there is no proof that these bullets are OPP bullets and questions as to, as to how the bullets could have got near the home, with a Kennedy assassination-like trajectory query. Looking at the photos, I have little difficulty in drawing a straight line from the stray bullets to the firing range. The investigative report appears at pages 157 through 161 of the, of tab 12 of the supplemental application record and it is dated June 6th, 2011, and was released some time in 2014 to 2015 under a Freedom of Information request. The report referred to a bullet on May 28th, 2011, being found on the landscaping fabric just east of the Buehner home and refers to other bullets being found over the years. Under the heading “summary of investigation” at page 159, the report indicates that “the following are a summary of the issues identified with the range and facility in general.” The issues are listed on page 4, but page 4 when you look at it, there’s nothing there as page 4 was not released and was redacted from the report by the authorities releasing the document. The next page contains a conclusion which in parts states, “Although the number and scope of issues seems daunting, it must be noted that this range is far superior to the range I last utilized as a uniformed officer in 2005. The general [the general] appearance has greatly improved and many safety improvements have also been facilitated.” What issues are daunting? How many issues exactly are there? The investigation outlines them on page 4 but the authorities refused to disclose it to the neighbours most affected. Basically, the good citizens surrounding the pit, who I find to be honest, decent, and hard-working individuals, accommodated the police with a handshake agreement and then when the shooting dramatically intensified and stray bullets are found in a neighbouring property, the police do an investigation, find daunting issues and refused to tell the community the specifics and the extent of the danger the police created. Basically, what the police tell the community is, trust us. This is how it works in other countries, but not in Canada. The authorities have their right to exercise their Freedom of Information concerns but then to rely in this case on a lack of evidence identifying the police bullets while refusing to disclose what their investigation indicated seems disingenuous to me. I find that the refusal to disclose the exact findings of this report to be completely contrary to how a free and open society operates, even though the police were exercising their rights under the Freedom of Information. In my opinion, given the factual circumstances here, the police, given the fact that the community in my opinion accommodated them earlier, should have been completely forthright as to what danger or not danger the community was in. Further, the police in establishing this range with whatever buildings were erected, must according to the bylaw that was in effect before August 5th, 1986, must design it to be in general harmony with neighbouring residential buildings of the type permitted and the respondent has failed to establish this general harmony as required.
The respondent refers me to a further Officer Fuller report, dated June 12th, 2014, found as Exhibit 3 of the Anita Buehner cross-examination. The first line in executive summary indicates that the police firing range, referring to the pit location, has been in operation since 1981. That is clearly wrong. Even the city is, even the County’s earliest estimate is 1984. The report identifies range safety deficiencies and seeks to correct them. The report concludes that the range poses no danger to the public or police. The report makes no reference to the fact that stray bullets were found relatively recently on the Buehner property. Ominously the most important reference is the first line in the report, which indicates how the training centre is considered for current and future use. The first line reads, “Hours of operation, 365 years, 24 hours a day, as required by police training.” I find that schedule is completely different from the original agreement which was daytime shooting over at most a few months in the spring time.
This now leads me to issue number 2. Even though it’s not necessary, I will briefly address this issue as well.
Issue Number 2. Has the firing range grown in intensity so as to render any acquired right illegal?
Law
The leading case is Saint-Romuald (City) v. Olivier 2001 SCC 57, [2001] SCJ No. 54, wherein the Supreme Court indicates as follows, paragraph 19:
Under the doctrine of “acquired rights”, the respondents were not only entitled to continue to use the premises as they were when the new by-law was passed, but was given some flexibility in the operation of that use. My colleague Gonthier J. notes that regard is to be had in such cases to “the real and reasonable expectations” of the landowner caught by changes in the zoning... Gonthier J. also acknowledges...that “normal evolution” may occur in some uses with the passage of time, and that “a use protected by acquired rights may be exercised more intensively...
Going on to paragraph 25:
In general, merely continuing the precise pre-existing activity, even at an intensified level, is clearly protected, but the intensification may be of such a degree as to create a difference in kind. [A family farm which has a] A family farm which has a few pigs on the fringe of a town may continue as a legal non-conforming use, but the result may be otherwise if it is sought to expand its pork operation into “factory in the country” type intensive pig farming. While in one sense the “use” has continued, in another sense its character has been so altered as to become, in terms of its impact on the community, an altogether different use.
Paragraph 34:
In my view, both remoteness and neighbourhood effects have a role to play in the proper disposition of this type of case. Each contributes to what Gonthier J. refers to as the real and natural expectation of the landowner. The Court’s objective is to maintain a fair balance between the individual landowner’s interest and the community’s interest. The landowner overreaches itself if (i) the scale or intensity of the activity can be said to bring about a change in the type of use, as mentioned above, or if (ii) the addition of new activities or the modification of old activities (albeit within the same general land use purpose), is seen by the court as too remote from the earlier activities to be entitled to protection, or if (iii) the new or modified activities can be shown to create undue additional or aggravated problems for the municipality, the local authorities, or the neighbours, as compared with what went before. The factors [are to be] are balanced against one another. Thus, adding a metal panel beating operation to an automobile repair shop in a residential neighbourhood will probably...be characterized as a new type of use, whereas a local non-conforming grocer store use that adds an innocuous fax machine – clearly an activity unrelated to selling groceries – will likely succeed (assuming someone wished to challenge it) by defining its prior operation as a “convenience store” rather than a “grocery store”.
Finally, paragraph 39, Summary of Approach:
I therefore approach the issue of limitations on the respondents’ acquired right as follows:
1 . It is firstly necessary to characterize the purpose of the pre-existing use [which in this case was Central Jewish Institute, referring] (Central Jewish Institute, supra). The purpose for which the premises were used (i.e., “the use”) is a function of the activities actually carried on at the site prior to the new by-law restrictions.
2 . Where the current use is merely an intensification of the pre-existing activity, it will rarely be open to objection. However, where the intensification is such as to go beyond a matter of degree and constitutes, in terms of community impact, a difference in kind (as in the hypothetical case of the pig farm discussed above), the protection may be lost.
3 . To the extent a landowner expands its activities beyond those it engaged in before...the added activities may be held to be too remote from the earlier activities to be protected under the non-conforming use. In such a case, the added activities are simply outside any fair definition of the pre-existing use and it is unnecessary to evaluate “neighbourhood effects”.
4 . To the extent activities are added, altered or modified within the scope of the original purpose (i.e., activities that are ancillary to, or closely related to, the pre-existing activities), the Court has to balance the landowner’s interest against the community interest, taking into account the nature of the pre-existing use (e.g., the degree to which it clashes with surrounding land uses), the degree of remoteness (the closer to the original activity, the more unassailable the acquired right) and the new or aggravated neighbourhood effects...The greater the disruption, the more tightly drawn will be the definition of the pre-existing use or acquired right. This approach does not rob the landowner of an entitlement. By definition, the limitation applies only to added, altered or modified activities.
5 . Neighbourhood effects, unless obvious, should not be assumed but should be established by evidence if they are to be relied upon.
6 . The resulting characterization of the acquired right (or legal non-conforming use) should not be so general as to liberate the owner from the constraints of what he actually did, and not be so narrow as to rob him of some flexibility in the reasonable evolution of prior activities. The degree of this flexibility may vary with the type of use. Here, for example, the pre-existing use is a nightclub business which in its nature requires renewal and change. That change, within reasonable limits, should be accommodated.
7 . While the definition of the acquired right will always have an element of subjective judgment, the criteria mentioned above constitute an attempt to ground the Court’s decision in the objective facts. The outcome of the characterization analysis should not turn on personal value judgments, such as whether nude dancing is more or less deplorable than cowboy singing. I am unable, with respect, to accept as legally relevant my colleague’s observation that “[w]hereas erotic entertainment seeks to sexually arouse the audience by the stripping and suggestive behaviour engaged in by the performers, country and western shows seek to entertain by providing a showcase for the special talents of singers, musicians and dancers” ...Serious music is also commonly thought to arouse the passions profoundly, but in terms of acquired rights, music stores should not be differentiated by whether they offer Muzak or Mozart.
Regarding the facts of regarding issue number 2
The Buehners own the farm adjacent to the firing range. They applied the planning process in 2012 for a zoning change in order to operate what now appears to be a thriving estate lavender and winery tourist business. The police shooting operation has changed as well. It started as a 10 week shooting range in the spring with very specified and limited times – see affidavit number 1 of Officer Barnes at paragraph 9. The range initially had limited fencing, signage and had six lanes of shooting with no or limited structures. It has since expanded from six lanes of shooting for the local police force into 32 lanes for a variety of differing police forces. Buildings, fencing and signage have been added. There is night shooting and the schedule has been expanded to 11 months of shooting - see paragraph 12 of the affidavit of Ron Turkiewicz, dated April 17, 2016. All of this has been done without any municipal approval or oversight. Basically, the firing range was initially used for about 10 weeks in the spring, two hours in the morning, 9 till 11 a.m., and two hours in the afternoon, 1 to 3 p.m., and had six lanes of shooting as I have indicated. It was designed initially to be used by the local OPP officers with an additional one 2-hour session for employees of the Canadian Centre for Inland Waters who required training to deal with polar bears as well as new local OPP officers – see Norm Barnes’ affidavit number 1 and paragraphs 8 through 10 in the responding application record. As indicated, at least one neighbour was not aware of the shooting for many years due to the very limited times and nature of the shooting and his work schedule. Ron Turkiewicz, a sergeant with the OPP, as I’ve indicated swore an affidavit on April 7th, 17th, 2016. It appears at tab 5 of the responding application record. Paragraph 16 indicates there are now two ranges at the pit, the north range and the south range. Only the north range is being used (the south range appears to be more open than the north range) and the north range has an almost, complete forest surrounding it. Paragraph 12 of the Turkiewicz affidavit outlines the firearm schedule for 2016 as 8 Thursdays in January, February and one date in March, six Wednesdays in March and April, six Mondays and May and June, August 29, six Wednesdays in September, October. The times are 9 a.m. to 12 p.m. and 1 to 3 p.m. there are five Saturdays in January, February, and one date in March from 3 p.m. to 5:30 p.m. And night shoots take place Mondays through Thursdays from October 26 to the end of November between the hours of 6:30 p.m. to 9:30 p.m. The pit is no longer a facility for local OPP officers. As I have indicated six lanes have expanded to 32 target lanes used to train officers from Norfolk, Haldimand, Brant, Oxford. It is also used by the Halton Region TAC team. The range is now fully signed, fenced and gated. There are now four structures on it, the wooden shelter with picnic tables, a shopping, a shipping container rather, an MTO trailer, and a woodshed. The training schedule has expanded from about 10 weeks in the spring originally with what neighbours described as occasional shooting to a virtual year-round operation with numerous shooting lanes used by multiple police services at expanded times during both day and night. Ron Turkiewizcz, in his affidavit at paragraph 22, denies that the stray bullets found in the Buehner property are from the OPP. Given the number of bullets found on the Buehner property, its proximity to the pit, the extent of the increased use of the pit for shooting and the overall location of the bullets and the refusal of the authorities to disclose the essential findings of their investigation into the stray bullets, a reasonable inference is that stray bullets are finding their way through the trees onto the Buehner property placing residents, the residents at the Buehner property, farmworkers and tourists to potential significant and even potentially lethal risk.
It is my finding that the original intention was for the local municipality to assist their local police force with shooting training by allowing limited shooting during a couple of spring months at the pit. That, on its face, is not unreasonable. This has now expanded over the years into a major police training facility for shooting training for numerous police forces basically year-round with expanded hours into the day and night. I cannot imagine that this was contemplated by that original handshake agreement between the police and those unknown municipal employees from 29 to 30 years ago. Not surprisingly, given the extent of the new operation, stray bullets are, have been found on the neighbouring property. An environmental cleanup of the pit costing $900,000 has been committed to by the municipality. The extent of the environmental impacts including lead contamination are not really known. In my opinion, this intensified level of activity, out of all proportion to what was originally done and agreed to, even if permitted originally, is a non-legal conforming use. The character of the use has become so altered as to become, in terms of its impact in the community, an altogether different use - see paragraph 25 of the Saint-Romuald case. Using the approach outlined in paragraphs 34 and 39 of Saint-Romuald, I find the following. 1) The pit was originally designed as a shooting range to assist the local police force to do training in a limited few hours during the day over an approximate two month period in the spring. 2) The use of the pit intensified over the years to the point that the original proposed use was expanded to an extent never contemplated by the original vague agreement. Lanes were expanded from 6 to 32 lanes. A host of other non-local police agencies are using the pit. Schedules, times and use exploded from the occasional daytime shooting over a couple of months to a major facility with added structures with a virtual year-round schedule with expanded day and night time shoots. Thus, this in terms of community impact, is a complete difference in kind, depriving the police of the protection of a nonconforming use. 3) The evidence adduced at the hearing also reveals that a $900,000 environmental cleanup is now being contemplated but has not been done. There is the problem of the stray bullets on the Buehner property and increasing noise problems which is reported by some neighbours but not by others. In my opinion, the community interest in its totality now clashes with the use of the pit as a shooting range. Balancing all of these factors, see paragraph 34 of Saint-Romuald, a fair balance between the pit use and the community interests requires that the pit cease operations as a shooting training facility. The serious stray bullet problem alone would require this result.
Conclusion regarding issue number 2
The firing range in the pit has grown in such intensity that any previous acquired right has now become illegal.
Doctrine of Laches
The respondent relies on the Doctrine of Laches and asks me to apply it in this case. In Oro-Medonte (Township) v. Warkentin, reported at 2013 O.J. No. 984, a decision of the Ontario Superior Court of Justice, Justice Howden indicates at paragraph 136:
Laches is a doctrine from the former courts of equity. It provides an equitable defence to a claim under certain circumstances and within certain limits. One expression of the doctrine of laches is from Halsbury’s Laws of Canada...under equitable doctrines and limitation of actions:
If a proceeding is not subject to a limitation period, or if the limitation period has not yet expired after a lengthy period, the equitable doctrine of laches may apply as a defence to the claim. Laches permits a defendant to avoid an equitable (although not a legal) claim made against him or her if one can demonstrate that the plaintiff, by delaying the institution of his case, has either (i) acquiesced in the defendant’s conduct; or (ii) caused the defendant to alter his position in reasonable reliance on the plaintiff’s acceptance of the status quo, or otherwise permitted a situation to arise which it would be unjust to disturb.
Further, at paragraph 149:
The law is clear that delay is not sufficient to establish acquiescence. Acquiescence has been interpreted by the Supreme Court in M(K) v. M(H) in the following terms:
Acquiescence is a fluid term, susceptible to various meanings depending upon the context in which it is used. Meagher, Gummow and Lehane... identify three different senses, the first being a synonym for estoppel, wherein the plaintiff (or applicant) stands by and watches the deprivation of (its) rights and yet does nothing. This has been referred to as the primary meaning of acquiescence. Its secondary sense is as an element of laches — after the deprivation of her rights and in the full knowledge of their existence, the plaintiff delays. This leads to an inference that her rights have been waived.
The respondent indicates that there were no complaints made before 2012. The evidence establishes this is not true. I have already referred to the Buehner complaint made in the spring of 2011. Douglas Steinhoff, in his July 3rd, 2014 affidavit at page 6 of the supplemental application record, indicates at paragraph 10 and 11 that he has complained to his councillor and those complaints have led nowhere. At page 11 of his cross-examination, Mr. Steinhoff indicates that the shooting escalated back in 2005 and 2006 and he complained to his councillor, a Harold Sonnenberg, by phone to no effect. Anita Buehner indicated, typical of many of the witnesses, at page 28 and 29 of her cross-examination that no one complained as the community was under the impression that the police had every right to be there. Her comfort level changed in 2011 when a bullet was found. That was night and day and, and takes things to a different level. That was what she said and I agree with that statement.
My finding is that the community acted reasonably by tolerating the police originally using the firearms range for a limited few months in the spring during daytime hours for the training of their local police force. That reasonableness could not be used to suppress their concern to what I would consider a wholly different scenario. A firing range, as Officer Fuller states in his report in 2014, I believe, that this range now is expanded to a potential 365 days a year firing range through 24 hours a day by numerous police forces and with, and the effect that now bullets are straying onto a neighbour’s property endangering the Buehner’s family, guests and tourists accessing the Buehner farm. In these circumstances, it would be inequitable to apply the Doctrine of Laches and I decline to do so.
Order
An order will issue as requested by the applicant at paragraph 68 of its factum. Specifically it is ordered, there will be a declaration that on the lands legally known as Part Lot 8, Concession 12 Townsend, as in NR25169 and in NR151198 Norfolk County, PIN 50284-0123LT, an outdoor firearms training facility, 1) is not permitted by zoning Bylaw 1-Z-2014; 2) did not exist on August 5th, 1986 and therefore does not fall within Section 34(9)(a) of the Planning Act; 3) was not a lawful use on August 5th, 1986 and therefore does not fall within Section 34(9)(a) of the Planning Act; and, 4) is not a legal non-conforming use. There will be an interim and permanent injunction restraining the respondent from any activity, conduct or action that is contrary to the declarations in (a) including, but not limited, to giving permission to use for entering into a lease in relation to the lands legally known as Part Lot 8, Concession 12 Townsend, as in NR251689 and NR151198 Norfolk County, PIN 50284-0123LT to any person or a body. Costs of the application will go to the applicant.
Costs? Do you, do you have a costs outline?
...DISCUSSION RE COSTS SUBMISSIONS
THE COURT: You both did an excellent job. I always find it’s always hard that somebody has to win and somebody has to lose. That’s the nature of the game. I’m sorry.
MR. ABRADJIAN: Thank you, Your Honour.
MS. SMITH: Thank you, Your Honour.
...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED
FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2)
I, _________ Renee Imre ____________________ certify that this document is a true and accurate transcription of the recording of ___ Buehner v. Norfolk County __ in the _ Superior Court of Justice_ held at____ 50 Frederick Hobson VC Drive, Simcoe, ON ___ taken from Recording No. __ 2611_300_20160627_093411__6_SKARICT__ which has been certified in Form 1.
(Date) (Signature of authorized person)
*This certification does not apply to the Reasons for Judgment which was judicially edited.