CITATION: Township of Uxbridge v. Wasim, 2017 ONSC 7607
COURT FILE NO.: 1590/17 at Oshawa
DATE: 20171220
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Corporation of the Township of Uxbridge, Applicant
AND:
Akram Wasim and Aynul Wasim, Respondents
BEFORE: Justice J. Bryan Shaughnessy
COUNSEL: Daron L. Earthy, Counsel, for the Applicant
Respondents, unrepresented
HEARD: November 23, 2017
ENDORSEMENT
[1] The Applicant seeks a declaration that the Respondents are in contempt of restraining orders granted in Provincial Offences Act proceedings.
Background Circumstances
[2] The Respondents consented to two restraining orders in the Ontario Court of Justice, one under the section 36(7) of the Building Code Act with respect to property standards, and one under section 67(3) of the Planning Act with respect to zoning.
[3] This application was originally returnable July 7, 2017 but the son of the Respondents attended and requested an adjournment as his father Akram Wasim was unable to attend due to health reasons. The matter was adjourned to August 25, 2017 when the son attended again and advised that the Respondents were trying to clean up the property but were hampered by the disabilities his father (Akram Wasim) was experiencing following a stroke. The Applicant agreed to a modest adjournment. The matter was adjourned to September 22, 2017 on terms:
(a) that the matter was marked peremptory on the respondents to attend in person on September 22, 2017;
(b) that meaningful efforts are to be made in the interim period to clean up the property and bring it into compliance with the zoning bylaw;
(c) costs reserved to September 22, 2017.
[4] When this matter came before Justice Bale on September 22, 2017 only counsel for the applicant and Akram Wasim were in attendance. Justice Bale made the following endorsement:
The order of August 25, 2017 required that the respondents make “meaningful efforts to clean up the property and bring it into compliance with the zoning bylaw.”
Mr. Wasim says that most of the debris has been cleared up and many of the vehicles have been scrapped.
The only evidence of the Township is evidence of how the property appeared last November.
It may very well be that the efforts made by Mr. Wasim since August 25 have been “meaningful.”
Taking this into consideration, as well as the burden of proof beyond a reasonable doubt, I am not prepared to make a finding of contempt today.
The application is adjourned to the civil sittings commencing November 20, 2017, to allow the applicant to conduct a current inspection of the property and to allow the respondents further time to comply.
Both Akram Wasim and Aynul Wasim are to be in attendance on the next court date. Also, a township representative must be in attendance, and be prepared to give oral evidence in support of the application.
[5] Filed in support of this Application was the Affidavit of Andre Gratton sworn on April 26, 2017. Further, Andre Gratton attended in court and gave oral testimony in compliance with the order of September 22, 2017. Mr. Gratton is the Manager of Municipal Law Enforcement of the Township of Uxbridge. The Respondents did not file any responding material and indicated that they did not wish to retain counsel and that they would represent themselves in this proceeding. In the exercise of my discretion, I permitted the respondents to cross-examine Mr. Gratton and to also give oral evidence as they had not filed responding material.
The Evidence
[7] The Respondents reside in the Township of Uxbridge and are the registered owners of the property municipally known as 3210 Regional Road 30 in the Township of Uxbridge. The property includes the respondent’s residence.
[8] The property is zoned Rural (RU) under the Township Zoning Bylaw No. 81-19 as amended from time to time. The permitted use of a Rural-zoned property includes residential uses and certain conservation and farm uses. The Zoning Bylaw does not permit the property to be used as a “contractor’s yard.” The respondents are the directors and officers of a company called 4A Machinery Movers Inc.
[9] A Property Standards order may issue pursuant to section 15.2(2) of the Building Code Act for maintaining and/or occupying any lands in the Township of Uxbridge that does not conform to the standards prescribed by the Township of Uxbridge Property Standards By-law 2012-144 as amended from time to time.
[10] On September 13, 2016, after being convicted for zoning and property standards contraventions, the Respondents consented to prohibition Orders issued by Justice of the Peace Ryan.
[11] The prohibition order with respect to the zoning, issued against both Respondents dated September 13, 2016, directed “effective 60 days from the date of conviction, the [Respondents] shall be prohibited from using or continuing to use, any lands in the Township of Uxbridge….for any use other than such uses as permitted under the provisions of the Township of Uxbridge Zoning By-law 81-19…” The result was that the Respondents were to terminate within 60 days the operations of 4A Machinery Movers Inc. on the subject lands.
[12] The Property Standards order/injunction, issued as against both Respondents dated September 13, 2016 directed both Respondents “from continuing or repeating the offence of failing to comply with the Property Standards Order issued on September 3, 2015 pursuant to section 15.2(2) of the Building Code Act……and from maintaining and/or occupying any lands in the Township of Uxbridge….in a manner that does not conform with the standards prescribed by Township of Uxbridge Property Standards By-law 2012-144…” (emphasis added).
[13] The Property Standards Order of September 3, 2015 referenced in the Property Standards Injunction identified a number of deficiencies and repair standards that the Respondents were ordered to comply with namely:
Remove discarded items stored in front, side, and back yards, including but not limited to; discarded windows, metal racks, plywood, metal barrels, several discarded tires, plastic tubes, hoses, plastic buckets, metal cages, discarded snow blower, propane tanks, discarded riding mower, discarded garbage containers, discarded lumber, automotive parts and general rubbish and debris.
November 30 2016 Inspection of the Property
[14] The Municipal Enforcement Officer Andre Gratton testified that he attended the subject property on November 30, 2016 to determine whether Akram and Aynul Wasim were complying with the Prohibition Orders made by Justice of the Peace Ryan. Filed with the Application is the affidavit of Mr. Gratton sworn April 26, 2017 which inter alia attaches as exhibits 31 photographs taken by him on the November 30, 2016 attendance. The various photographs depict much of the debris outlined at para. [13] above as well as heavy duty machinery and heavy duty truck with a lift and a sign on the cab door of the truck “4A Machinery Movers” and a pager number, and several other trucks and a flatbed trailers, transport trailers etc. Suffice to say, as stated in the affidavit of Andre Gratton “the Respondents had not complied with the Prohibition Order of the Justice of the Peace”.
September 27 2017 Inspection of the Property.
[15] Ander Gratton provided oral testimony of his next attendance at the subject property on September 27, 2017 in compliance with the order of Bale J dated September 22, 2017 (para. [4] above.) In addition he took 24 photographs which collectively are marked as Exhibit # 1 in this proceeding.
[16] Mr. Gratton testified that upon attending the property he spoke to Mr. Wasim and told him he was attending for court purposes to determine if there were any changes to the conditions and any remediation pursuant to the prohibition orders. I will only briefly outline his testimony as he referenced each photograph as he testified. His evidence related to
• 3 dilapidated agriculture trailers----one which had hay to feed goats on the property and one to store tools and machinery and possibly one to shelter sheep:
• A black Honda vehicle in the front yard with no plates as well as a tire and debris between the car and house; (photos 1,2&3)
• Eaves trough in state of disrepair; (photo 4)
• A Grey Blue commercial truck;(photo 5)
• A 50 foot double tire trailer; (photo 6)
• A Cube Van; (photo 7)
• A backhoe;(photo 8)
• Garbage and debris in back deck and grounds;(photos 9&10)
• Scrap metal and bathtub and tires;(photo 11)
• Contents of International trailer emptying out onto the hydraulic platform and tools;(photo 13)
• White Industrial truck and orange lift and more machinery and logo on cab door “4A Machinery Movers Scarborough Ont.” with a phone number and pager number;(photos 15 &16)
• A large Red Mack truck with a logo “4A Machinery Movers” and a pager number;(photos 17 &18)
• A Nissan Forklift as well as garbage, debris and door;(photo 19)
• Scrap metal; (photo 20)
November 14, 2017 Inspection of the Property
[17] Mr. Gratton again attended at the subject property on November 14, 2017 which was 8 days before this hearing. Again he took 23 photographs which collectively were marked as Exhibit # 2 to these proceedings. He also testified in relation to each photograph and which I will only briefly summarize;
• A forklift in the yard (photo 1);
• A discarded snow blowing machine and a 50 foot 2 tire trailer, lumber, hydraulic machinery and oil, gas cylinder, 2 agriculture trailers, smaller trailer for hay (photo 2,3&4);
• A 50 ft. commercial trailer and cube van (photo 5);
• A dark Honda vehicle with no plates in the front yard (photo 6);
• A dilapidated forklift, a commercial truck and trailer (photo 7);
• Debris throughout property at side of home and detached garage and plywood, gas cylinders. (photo 8);
• Blue and Silver International Truck (photo 9 & 10);
• Back of open trailer with articles out on hydraulic lift (as depicted in photo 13 of Sept. 27,2017) (photo 11);
• Used tires (photo 12)
• White Cube Van, tires, scrap metal (photo 13);
• Red Mack truck, flatbed trailer, and debris on ground and flatbed (photo 14)
• White International truck and orange forklift and 2 pieces of machinery beside the truck (photo 15& 16);
• Red Mack truck (photo 17);
• Scrap metal and debris throughout yard (photo 18& 19);
• Dilapidated Nissan Forklift and door and debris (photo 20);
• More scrap metal and debris (photo 21& 22);
• Back of house debris and forklift earlier depicted (photo 23).
[18] The witness Andre Gratton attempted to outline the numerous attendances and violations of the respondents over the past 9 years, however I ruled that this evidence was irrelevant at this stage of a contempt proceeding.
[19] Mr. Gratton was asked questions in cross-examination and in particular whether he had noted any improvement in the property between his September and November inspections of the property. He responded that there was no improvement. He was then asked to look at photo 1 of exhibit #1 (taken on September 27, 2017) and photo # 6 of exhibit #2 (taken on November 14, 2017). These photos depict the black Honda with no license plates. Photo # 1 depicts debris between the Honda and the house. Photo 6 of Exhibit # 2 does not depict debris between the Honda and the house. The Respondent’s position is that the witness was not truthful and therefore all his evidence including photographs should not be accepted into evidence as he is not credible. The difficulty with this position is that photo 1 of exhibit #1 is taken from directly in front of Honda and depicts the area between the left side of the Honda and the front wall of the house. Whereas, photo 6 of exhibit #2 is taken on an angle out from the right rear corner of the car and does not depict the area between the left door and the house. Therefore, it cannot be said as suggested by the Respondents that this debris and garbage had been cleaned up. In any event, the area in dispute, is a very small amount of the total garbage and debris around the land and premises.
[20] Mr. Gratton also agreed that 2 of the Agricultural trailers contained hay and could well be used to shelter the sheep and therefore would be within the permitted uses of the subject property but he did not agree that the third agricultural trailer was being used for the same purpose.
[21] In summary Mr. Gratton testified that overall the condition of the property was the same and there was no improvement between his inspections in September and November 2017.
[22] Akram Wasim then testified. He stated that he purchased the property in 1999. He states that he was in the business of transporting machinery. He testified that when he purchased the property, he asked if he could operate his business out of the subject property and he says that the Township told him “it would be no problem.” However he states that the Township would not give him that assurance in writing. He testified that 19 years after purchasing the property his heath became an issue. He said the business as a result was not doing well. He testified that all the trucks are his and he has slowly sold two trucks and he will sell more when he “gets his price.” He also stated that he had lost his commercial license “because of a big fine.”
Position of the Applicant
[23] The position of the applicant is that it has been proven beyond a reasonable doubt that the respondents have intentionally permitted the property to remain in contravention of the Zoning By-law and the Property Standards By-law and that they have made no efforts to comply with the injunctions.
Position of the Respondents
[24] The position of the respondents is that they made an effort to clean up debris as outlined in para. [19] above. Their remaining positions would be more relevant to a penalty phase and not the present contempt phase.
Analysis
[25] The authority for civil contempt is found in Rule 60.05 and 60.11 of the Rules of Civil Procedure.
[26] Rule 60.05 provides that:
An order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by way of a contempt order under rule 60.11.
[27] Rule 60.11(1) provides that;
A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.
[28] In the present case the injunctions were issued by a Justice of the Peace in proceedings under the Provincial Offences Act. There is no procedure to bring a motion for civil contempt in the Ontario Court of Justice in these circumstances. The Superior Court of Justice has jurisdiction by virtue of the Municipal Act, 2001, and its’ inherent jurisdiction to hear an application for contempt of court arising from a restraining order enforcing a municipal bylaw. (Waterloo (Regional Municipality) v. Power, 2003 CarswellOnt 5494, 47 M.P.L.R. (3d) 232 (SCJ) at para.4-5.).
[29] In Carey v Laiken, 2015 SCC 17 at para 18, the Supreme Court of Canada has held that as general rule, contempt proceedings are bifurcated into a liability phase, and if liability is established, a separate penalty phase. I wish to make it clear that I am only dealing in these reasons with the liability phase. As indicated much of the oral evidence of the Respondent Akram Wasim would be more relevant to a penalty phase.
[30] The test for civil contempt is set out in the Ontario Court of Appeal decision in Chirico v Szalas 2016 ONCA 586 at para 52. The Applicant must establish that the Respondents intentionally refused to comply with a clear and unequivocal court order beyond a reasonable doubt.
[31] The Zoning injunction of the Justice of the Peace clearly and unequivocally stated that the Respondents were prohibited from using any lands in the Township of Uxbridge for any uses other than such uses as are permitted under the Zoning Bylaw. I find beyond a reasonable doubt that the Respondents were using the property surrounding the residence as a “contractor’s yard”. A contractor’s yard is not a permitted use. The Zoning Injunction specifically stated that the Respondents were “prohibited from using or continuing to use any lands in the Township of Uxbridge ….for any use other than such uses as are permitted under the provisions of the Township of Uxbridge Zoning By-law 81-19…” The parties were in court and consented to the injunction when made by the Justice of the Peace. I also find that the respondent and his son intentionally misrepresented to the Court on prior attendances that steps were being taken to comply with the prohibition orders.
[32] I do not accept the evidence of Akram Wasim that he obtained oral approval of locating his machinery moving company on the property but could not get it in writing. I do accept the evidence of the Manager of the By-law Enforcement unit as detailed in his various attendances at the subject property. He documented the various commercial vehicles and machinery on the property. Indeed Mr. Wasim did not dispute that he continued to operate the commercial business at the property but stated that business was slow because of his “illness” and that he would sell vehicles if he got his price. I observed that Mr. Wasim as he testified appeared to have limited use of one arm consistent with his evidence that he suffered a stroke earlier in 2017. He was able to ambulate and use his other arm. English is his second language, however, he appeared to understand and speak relatively good English as did the respondent Aynul who made submissions.
[33] The Property Standards injunction clearly and unequivocally states that the respondents must comply with the Property Standards Order dated September 3, 2015 and from maintaining and occupying the lands in a manner that does not conform to the Property Standards Bylaw. It ordered that the respondents were “prohibited from continuing or repeating the offence of failing to comply with the Property Standards Order issued on September 3, 2015 pursuant to section 15.2(2) of the Building Code Act. 1992, S.O. Chap.23 and from maintaining and/or occupying any lands in the Township of Uxbridge ….in a manner that does not conform with the standards prescribed by the Township of Uxbridge Property Standards By-law 2012-144….” (emphasis added).
[34] A comparison of the photos taken during the inspection of November 30 2016, September 27, 2017 and November 14 2017 together with the evidence of Mr. Gratton in relation to the investigation of compliance with the Zoning injunction and the Property Standards injunction clearly indicate that the property remains in more or less the same condition as it was in 2015. The property is littered with waste and debris, including numerous inoperable vehicles, machines, trailers, tires and parts.
[35] The Zoning Bylaw permits parking of vehicles only as an accessory to a permitted use. The Property Standards Bylaw permits two dismantled or inoperative vehicles that are being privately renovated to be on the lot if they are to the rear of a principal building and are not visible from the road. The review of the photographs and the testimony of Mr. Gratton establishes beyond a reasonable doubt that various commercial trucks trailers and machinery are parked throughout the property in addition to the very significant debris and waste and not in compliance with the bylaws and the prohibition orders.
[36] Both respondents were in court when convictions were registered by the Justice of the Peace and consented to the injunction orders and I find had actual knowledge actual knowledge of the injunctions.
[37] I noted that a Safari Van on top of a trailer seen in the November 30, 2016 photo is not visible in the 2017 photos. Likewise a grey Mini Van seen in the November 2016 photo is not present in the 2017 photo. While some of the machinery has been moved around as seen in the photos they nevertheless are still present on the property. The commercial trucks remain on the property.
[38] The Zoning Injunction is clearly being breached. Only residential and farming vehicles are permitted. The respondents knowingly have various commercial trucks and trailers on the property as outlined previously. I will add that since the property is zoned Rural that the 2 agricultural trailers are not a contravention of the zoning bylaw. But the rest of the vehicles and trailers are a breach.
Conclusion
[39] I am satisfied beyond a reasonable doubt that the respondents have not made any substantial or meaningful effort to comply with the Zoning Bylaw injunction or the Property Standards injunction and I hereby make a declaration that Akram Wasim and Aynul Wasim are in contempt of both of the injunctions in the form of a restraining orders issued by the Justice of the Peace Ryan dated September 13, 2016, as detailed above.
[40] Accordingly, this application is adjourned to January 8, 2018 at 2:00 PM to permit the respondents to purge their contempt by complying with the injunction orders issued and for further submissions on disposition or sentence and the costs to be awarded, if any, for the August 25, 2017 attendance as well as other costs in this proceeding.
[41] I hereby order and direct Akram Wasim and Aynul Wasim to attend in the Superior Court of Justice at 150 Bond Street East, Oshawa Ontario on January 8, 2018 at 2:00 PM to deal with the penalty phase of this contempt application.
The Honourable Mr. Justice J. Bryan Shaughnessy
Date: December 20, 2017
CITATION: Township of Uxbridge v. Wasim, 2017 ONSC 7607
Oshawa On. COURT FILE NO.: 1590/17
DATE: 20171220
ONTARIO
SUPERIOR COURT OF JUSTICE
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
The Corporation of the Township of Uxbridge, Applicant
AND:
Akram Wasim and Aynul Wasim, Respondents
BEFORE: Justice J. Bryan Shaughnessy
COUNSEL: Daron L. Earthy, Counsel, for the Applicant
Respondents, unrepresented
ENDORSEMENT
The Honourable Mr. Justice J. Bryan Shaughnessy
DATE RELEASED: December 20, 2017