BARRIE COURT FILE NO.: CV-18-1381
DATE: 20190802
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Corporation of the Township of Tiny and Jamie Wilson (Chief Building Official)
Applicants
– and –
Leger Gerald Robitaille
Respondent
Michael Miller, for the Applicants
Leger Gerald Robitaille, Self-Represented
HEARD: June 28, 2019
REASONS FOR DECISION
MCKELVEY J.:
Introduction
[1] This is an application by the Township of Tiny pursuant to s. 38 of the Building Code Act, 1992, S.O. 1992, c. 23 for the removal or demolition of buildings located on the respondent’s property, together with an injunction restraining the respondent from occupying the buildings on his property.
[2] Mr. Robitaille purchased the property on October 30, 2009 according to the Land Registry Office records. On the day following his purchase of the property, Mr. Robitaille moved a building to the property. Photographs of the property show that there is a log cabin, a shed, and an outhouse which have been either constructed or placed on the property. There is no issue about the fact that the buildings were placed on the property without a building permit. In his affidavit, Mr. Robitaille states that on November 2, 2009, he went to the Tiny Township office to find out how to acquire a building permit. In his affidavit, he describes how he has made repeated attempts to obtain a building permit without success.
[3] According to the Municipality, the reason that no building permit could be issued is because Mr. Robitaille’s property is covered by the Zoning By-law which was enacted by the Township on January 9, 2006. The affidavit of Steven Harvey indicates that the property is zoned (Rural Holding Two (RU (H2)).
[4] At paragraphs four and five of Mr. Harvey’s affidavit, he states as follows:
- Pursuant to the zoning By-law, any property in the municipality subject to the holding provision must comply as follows:
2.6 Notwithstanding any other provision in this By-law, where the Zone symbol is followed by the letter (H), no person shall use the land to which the letter (H) applies for any use other than the use which existed on the date this By-law was passed, until the (H) is removed in accordance with the provisions of this section, the policies of the Official Plan and the requirements of the Planning Act, R.S.O. 1990, c. P. 13, as amended. The only exception in this regard is the Holding Three A (H3A) provision, which only applies under the circumstances outlined in Section 2.6.1.4.
- The Holding Provision in the Zoning By-law can only be removed if the owner is able to comply with section 2.6.1.2 which provides as follows:
2.6.1.2 The Holding (H2) provision applying to lots on private streets or streets which have not been assumed for maintenance purposes by the municipality may be lifted once an appropriate site plan agreement has been entered into pursuant to Section D2.5.2 (Conditions Under Which Development is Permitted on Private Roads) of the Official Plan.
[5] Mr. Robitaille argues that the road which abuts his property is a proper collector road, which means that the holding designation on his property should be removed by the Municipality.
Analysis
[6] I have concluded that the current zoning for Mr. Robitaille’s property contains an H designation, which means that according to the By-law, it cannot be used for any use other than the use which existed on the date the By-law was passed (i.e. January 9, 2006).
[7] Mr. Robitaille does not appear to dispute the current zoning designation of his property. In an affidavit he has filed on this application, he states,
The property was purchased by me as a farm on October 30, 2009. At that time, there was an H2 zoning designation on the above named property. It is my understanding that the H2 designation is for private roads, un-assumed roads and unopened road allowances.
[8] In Mr. Harvey’s Affidavit, he states at paragraph 3 that the property is zoned Rural Holding 2. The By-law status is also reflected on the property description prepared by the Real Estate Broker prior to the sale and which described the zoning as “RH2”.
[9] It is also apparent that under the terms of the zoning By-law, there is a restriction on the use of the land for any use other than the use which existed on the date the By-law was passed. It therefore is apparent that the respondent’s use of the land for residential purposes by moving residential structures on to the property following his purchase of the land described as farmland contravene the zoning By-law.
[10] In summary, therefore, the evidence before me on this application satisfies me that:
- The existing zoning for Mr. Robitaille’s property did not permit him following purchase of the property to erect residential buildings or structures on his property;
- That the structures which were placed on the property following his purchase were done without a building permit.
[11] Section 8(1) of the Building Code Act, 1992, S.O. 1992, c. 23, provides that “no person shall construct or demolish a building or cause a building to be constructed or demolished unless a permit has been issued therefor by the chief building official.”
[12] Section 38 of the Building Code Act provides as follows,
Where it appears to a chief building official that a person does not comply with this Act, the regulations or an order made under this Act, despite the imposition of any penalty in respect of the non-compliance and in addition to any other rights he or she may have, the chief building official may apply to the Superior Court of Justice for an order directing that person to comply with the provision.
[13] Based on the facts as I have noted above, it would appear that the applicants are entitled to an order which ensures compliance with the Zoning By-law and the Building Code Act.
[14] Further support for this position is reflected in the respondent’s conviction in the Ontario Court of Justice on February 9, 2017, for the following two offences:
(a) Failing to comply with an Order to Comply dated November 20th, 2013 made by an Inspector under Section 12.2 of the Building Code Act in respect of a structure; and,
(b) using or permitting the use of land for purposes not permitted by Section 2.6 of the Township of Tiny Zoning By-law 06-001, as amended, namely having an accessory building located on the lot to which the letter (H) holding provision applies to said lot.
[15] The affidavit of Mr. Harvey refers to the fact that the respondent appealed his convictions in the Ontario Court of Justice but failed to perfect the appeals and the appeals were dismissed on December 21, 2017.
[16] At the hearing of this application, the respondent argued that he was wrongfully convicted. He feels strongly that the roadway abutting his property is a “collector road” which means that his property has improperly been designated with the holding designation. Mr. Robitaille referred me during his submissions to various documents which he maintains show that the roadway abutting his property is a collector road or a highway, such that the holding provision should be removed from his property.
[17] The position of the Township is set out at paragraphs 27 and 28 of their factum, which states that the holding provision can only be removed after the owner enters into an appropriate site plan arrangement with the Municipality. The Municipality’s position is that the respondent’s property fronts on an un-opened road allowance. As part of any site plan agreement which would permit the removal of the holding provision from the respondent’s property, the Township says that it would require the construction of a road to municipal standards along the un-opened road allowance from the respondent’s property to an open municipal highway.
[18] The Township’s position is supported by the evidence of Shawn Persaud who is the Director of Planning and Development for the Municipality and who has sworn an affidavit dated October 19, 2018. At paragraph 11 of his affidavit he states that the respondent’s property “fronts on an un-opened road allowance”. He further states that before the Municipality would issue a building permit through the chief building official, it would require the respondent to have entered into an agreement providing for the construction of a road to municipal standards, along the unopened road allowance to an open municipal highway.
[19] I am satisfied on a balance of probabilities that the roadway abutting the respondent’s property is an un-opened road allowance according to the Township’s Official Plan and Zoning By-law. This categorization is supported by Schedule C of the Township of Tiny Transportation Plan which is found at Exhibit 3 of the Exhibit Book and which on the map identifies the road as “an un-opened or un-assumed township road”. This conclusion is also supported by photographs of the road which show it to be a single lane dirt road. It is also reflected in the property description prepared by the Broker prior to the sale of the property to Mr. Robitaille which contains directions to the property as follows: “CEDAR POINT ROAD TO THE 19th CONCESSION – TURN RIGHT. BUSH ROAD TO PROPERTY.” There is also no evidence to suggest that the Municipality has provided any maintenance services for this roadway.
Summary and Conclusion
[20] I recognize that the respondent is very frustrated by the refusal of the Township to allow him to keep the buildings he has moved on to his property. The Township has steadfastly refused to remove the holding designation on his property until a Site Plan Agreement has been finalized, which would require the construction of a road built to municipal standards along the un-opened road allowance. This no doubt would entail significant expense to the respondent. Nevertheless, the terms of the Zoning By-law are clear, as is the breach of the Building Code Act by the respondent. The Township is entitled to enforce its Zoning By-law. For the above reasons, I conclude that the applicants are entitled to the following Order in accordance with the relief sought on this Application:
(a) An Order that the respondent move or demolish, within 60 days from the date of this decision, the shed and cabin located on his property as described in the application;
(b) An Order that should the respondent refuse or fail to remove or demolish the shed and cabin on his property within 60 days from the date of this decision, that the applicants be permitted to remove and/or demolish the shed and cabin on the property and that all costs associated with the demolition and/or removal be added to the tax roll for the respondent’s property; and
(c) An injunction restraining the respondent or his guests, tenants and invitees from occupying the cabin on the property for human inhabitation.
[21] If the parties cannot agree on the costs of this application, then an appointment should be taken out with the trial coordinator within 30 days of the release of this decision to address the issue of costs. In such event, the parties will deliver concise briefs at least two days before their attendance. If no arrangements are made within 30 days for an appointment to speak to costs, there will be no order for costs.
Justice M. McKelvey
Released: August 2, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Corporation of the Township of Tiny and Jamie Wilson (Chief Building Official)
Applicants
– and –
Leger Gerald Robitaille
Respondent
REASONS FOR DECISION
Justice M. McKelvey
Released: August 2, 2019