ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-19-618679
DATE: 2019-09-12
BETWEEN:
THE CORPORATION OF THE TOWN OF CALEDON
Plaintiff
– and –
DARZI HOLDINGS LTD., LAYTH RAFAT SALIM AKA CARLO SALIM AND RAFAT GENERAL CONTRACTOR INC.
Defendants
Melissa Winch and Marisa Keating, for the Plaintiff
Bernie Romano and Jordan Nussbaum, for the Defendants
HEARD: September 9, 2019
Schabas J.
REASONS ON MOTION
Introduction
[1] The Corporation of the Town of Caledon (“the Town”) seeks orders against the defendants, who own and operate businesses on 3 different properties in the Town. There is a lengthy history of disputes over the lands and their use, and there has been litigation, both civil litigation and bylaw prosecutions, in the past few years involving issues raised on this motion.
[2] Essentially, the Town is seeking to enforce zoning bylaws involving land use and to prevent the defendants from using an unopened road between two of its parcels of land. More recently, the Town has raised concerns about a fence which inadvertently trespasses onto Town land and contains barbed wire which is not permitted under the Town bylaws.
[3] The defendants argue that the Town is acting in bad faith, singling them out when many other landowners in the area are using their properties in similar ways, not in compliance with zoning bylaws, and that the Town is acting in breach of its agreement to give the defendants six months to clean up and vacate two of the properties.
Issues
[4] There are three discrete points in issue on this motion:
whether to restrain the defendants from trespassing onto what is known as the Simpson Road Extension, an unopened road owned by the Town which has been used by the defendants;
whether to require the defendants to remove and/or alter a fence such that it will no longer be on Town property, and to comply with Town bylaws by removing the barbed wire; and
whether to order that the defendants cease using their land for storage of construction vehicles, equipment and materials, fill, and parking for employees, all in contravention of the Town’s zoning bylaws for those properties.
Discussion
Simpson Road Extension
[5] The evidence is clear that the defendants have been using the Simpson Road Extension knowing that it is not permitted. The road divides two of the defendants’ parcels, known as Coleraine East and Coleraine West. Use of the road was necessary while the defendants were using the Coleraine East property. Minutes of Settlement in previous litigation acknowledges that the Extension is Town property and that access is not permitted. Trespass notices have been issued. While the extent of use of the road by the defendants, including and whether or how many times the defendants have moved barriers or light standards, may be in dispute, there has been trespassing by the defendants.
[6] Following a plea agreement in a bylaw prosecution on June 14, 2019, discussed below, the defendants were required to clean up Coleraine East within 30 days and, apparently, did so, but that work involved using the Simpson Road Extension. As that work is now complete the defendants have stated they are no longer using Simpson Road, although there is some evidence from the Town that the road continued to be used by the defendants in August.
[7] Applying the test in RJR -MacDonald v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311 at para. 48, the Town has met the test for an injunction respecting trespass on the Simpson Road Extension.
[8] The Town has raised a serious issue to be tried by demonstrating that the defendants have been trespassing on the road. Injunctions enforcing property rights are readily granted, as are orders to enforce public rights and enforcement of public laws, including municipal bylaws: see, e.g., RJR at para. 76, and Hamilton (City) v. Loucks, 2003 CanLII 64221 (ON SC), [2003] O.J. No. 3669 at paras. 25-27 and 30.
[9] The Town also raises concerns about civil disobedience by the defendants, asserting that there has been deliberate and repeated flouting of the law by the defendants, and that such circumstances also favour an injunction: see Hamilton at paras. 30-32. While there is some evidence of repeated trespassing, I am not willing, on the record before me, to make a finding of civil disobedience which is, in any event, not necessary for my conclusion.
[10] To the extent they apply to this situation, irreparable harm and balance of convenience favour the Town. In RJR the Supreme Court stated that the public interest is relevant at these stages of the inquiry where a government entity is seeking an injunction since the primary irreparable harm will be harm to the public interest. As Copeland J. stated in Township of King v. 2424155 Ontario Inc., 2018 ONSC 1415, at para. 52: “In the context of a government body seeking to enforce legislation (or in this case, a by-law), the case law is clear that irreparable harm is generally presumed. The reason for this is that, in general, government is presumed to act in the public interest”:
[11] While evidence of irreparable harm is somewhat inchoate, this is often the case in trespass. As the Court of Appeal has noted in 1465152 Ontario Limited v. Amexon Development Inc., 2015 ONCA 86, at para. 23:
As the law in Ontario currently stands, different considerations apply in the latter circumstance, as was explained in Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (consulted on 30 January 2015), (Toronto: Canada Law Book, 2014), at 4.10 and 4.20:
Where the plaintiff complains of an interference with property rights, injunctive relief is strongly favored. This is especially so in the case of direct infringement in the nature of trespass.
The reason for the primacy of injunctive relief is that an injunction more accurately reflects the substantive definition of property than does a damages award. It is the very essence of the concept of property that the owner should not be deprived without consent. An injunction brings to bear coercive powers to vindicate that right. Compensatory damages for a continuous and wrongful interference with a property interest offers only limited protection in that the plaintiff is, in effect, deprived of property without consent at an objectively determined price. Special justification is required for damages rather than an injunction if the principle of autonomous control over property is to be preserved. A damages award rather than an injunction permits the defendant to carry on interfering with the plaintiff’s property. [emphasis added]
[12] It should also be noted that the Town will incur expenses if it must continue to enforce its property rights over the road, and that the road’s continued use raises safety concerns.
[13] As to the balance of convenience, since the defendants say they are no longer using the road and do not need to any more, there is no inconvenience to them if the order issues.
The Fence
[14] The defendants acknowledge that a mistake was made and that a portion of the fence was built on Town land. The defendants would like to purchase what they describe as a “sliver” of unused land to resolve this problem, and say they are willing to pay a fair market price. I cannot order the Town to sell it. In my view, if the Town and the defendants cannot, or do not wish to, reach an agreement on selling the land within 90 days of the date of these Reasons, then the defendants shall be required to move the fence within 30 days following the 90-day period.
[15] While the Town also seeks to have me order the removal of the barbed wire, I see this as a bylaw enforcement issue on which the Town should proceed in the usual way. When pressed, counsel for the Town agreed, and so I make no order relating to that issue.
Land Use
[16] There is no dispute that the three parcels of land in issue - Coleraine East, Coleraine West and Nixon Road - have been used by the defendants in contravention of Town zoning bylaws. The defendants have been openly storing, among other things, vehicles, construction equipment and materials and fill on the properties. Charges were laid against the defendants Darzi Holdings Ltd. and Mr. Salim under Part III of the Provincial Offences Act for violations of the Town’s zoning bylaws and its Site Plan Control bylaw. On June 14, 2019, the defendants pleaded guilty to all charges.
[17] As part of the resolution of the charges, the Town agreed to forebear from enforcing its zoning bylaw for a short period of time to permit the defendants to bring the properties into compliance. This required the defendants to:
(a) remove all equipment from the Coleraine East Property by July 14, 2019; and
(b) bring the Coleraine West Property and Nixon Road Property into compliance with the Town’s Zoning By-law by December 14, 2019, provided that:
a. a work plan is entered into that sets out the steps to be taken over the six-month period to bring these properties into compliance;
b. the defendants adhere to the work plan; and
c. the workplan must include a commitment to remove fill from the property and return the properties to original grade.
[18] This agreement was not part of a court order in resolving the charges and so is just that – an agreement.
[19] To date, no workplan has been agreed to; however, the defendants have removed all equipment from Coleraine East and did so within the time frame required. The defendant, Layth Salim, the principal of the corporate defendants, has sworn that the other two properties will be cleaned up in accordance with the agreement by December 14, 2019, although he has said he would like an extension if it can be agreed upon.
[20] Given the plea agreement and the evidence, it may be that no injunction is necessary, and that this motion is premature. However, the Town submits that in light of the history of violations of the zoning bylaws and trespassing on the road by the defendants, a court order is necessary to ensure compliance with the agreement and, accordingly, the zoning bylaws. But the Town has not sought an order effective December 14; its motion seeks an order that the defendants comply immediately.
[21] The defendants, not surprisingly, have pointed to the agreement which gave them six months to clean up the lands, and accuse the Town of acting in bad faith and of breaching the agreement. Further, the defendants submit that, as they are using the properties for their ongoing business, they will suffer irreparable harm if required to stop using the properties on short notice. The defendants feel especially aggrieved since, they submit, many other nearby property owners appear to be engaging in similar illegal uses, yet the Town has singled them out for prosecution.
[22] It is not necessary, or perhaps even possible, to resolve these issues on this motion. The defendants have agreed to clean up the properties and be in compliance with the zoning bylaws by December 14, 2019, and this has been confirmed on this application. Counsel for the Town has agreed that such an order would satisfy the Town, and the defendants, while not consenting, do not vigorously oppose such an order, although they may continue to seek an extension with respect to their use of the Nixon Road property.
[23] As the Town seeks this order under s. 440 of the Municipal Act, as well as pursuant to the court’s equitable jurisdiction, it is not necessary to resolve the issue of whether there was a breach of the June 14 plea agreement by the Town, or whether it has been acting in bad faith or unfairly singling out these defendants for prosecution and enforcement, such that it does not come to court with clean hands.
[24] Under s. 440 of the Municipal Act, S.O. 2001, c. 25, the Town may seek a statutory order for compliance with a bylaw:
If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.
[25] Orders under this section simply require a showing of a breach of a bylaw, and it will only be in exceptional circumstances that an order will not issue. As Juriansz J.A. stated in Newcastle Recycling Ltd. v. Clarington (Municipality), 2005 CanLII 46384 (ON CA) at para. 32:
The issue before the application judge was whether Clarington was entitled to a permanent injunction to enforce a bylaw. It was not necessary for Clarington to lead compelling evidence that the injunction was warranted. Where a municipal authority seeks an injunction to enforce a bylaw which it establishes is being breached, the courts will refuse the application only in exceptional circumstances.
[26] As observed by Howden J. in Neighbourhoods of Windfields Limited Partnership v. Death, 2008 CanLII 42428 (ON SC) at paras. 178-181, other appellate decisions confirm that an order under s. 440 is statutory, not equitable, and so equitable principles such as the clean hands doctrine have little, if any, application.
[27] In my view, there are no exceptional circumstances that would justify denying the Town the relief it now seeks, which is an order to bring the properties into compliance by no later than December 14, 2019.
[28] On the record before me, I cannot say that the Town has breached or repudiated the June 14 plea resolution agreement, which is limited to its terms, or that the Town’s conduct is beyond its jurisdiction or arbitrary, or taken for an improper or ulterior purpose, such as was the case in Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] SCR 121, or White Hatter Limousine Service v. City of Calgary (1993), 1993 CanLII 7182 (AB KB), 13 Alta. L.R. (3d) 362 (Q.B.), as argued by the defendants. Even assuming that there are others in similar situations who are not being prosecuted - although the Town has filed evidence that it is taking action against others - the Supreme Court observed in Polai v. City of Toronto, [1973] SCR 38, 1972 CanLII 22 (SCC), that a municipality “seeking to protect and enforce a public right, should not be denied the remedy of injunction merely because others, in addition to the defendant, are guilty of similar violations and have not been restrained.”
Conclusion
[29] The plaintiff is entitled to injunctive relief, therefore, restraining the defendants, including their associates, employees, agents, invitees or anyone else acting under their instruction, from trespassing onto Town of Caledon property, and more specifically the land known as the Simpson Road Extension immediately south of George Bolton Parkway.
[30] Similarly, an order will be issued requiring the portion of the fence that trespasses onto Town lands be removed from Town property if, within 90 days of the release of this decision, no other arrangement or agreement has been reached with the Town. In the absence of such agreement, the defendants will have 30 days from the end of the 90-day period to remove the offending portion of the fence.
[31] Finally, an order shall issue under s. 440 of the Municipal Act requiring the defendants to comply with Town of Caledon zoning bylaws with respect to the use of lands described in the notice of motion as the Coleraine Drive Properties (which includes both Coleraine East and Coleraine West) and the Nixon Road Property, but that such order will not be effective respecting the portion of the Coleraine Drive property on the west side of Simpson Road, or the Nixon Road Property, until December 14, 2019.
[32] Having regard to the outcome, I encourage the parties to attempt to resolve the issue of costs without further court intervention. Should that not be possible, each party may make submissions to me in writing, not exceeding three pages, not including appendices or supporting materials.
Schabas J.
Released: September 12, 2019
COURT FILE NO.: CV-19-618679
DATE: 2019-09-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CORPORATION OF THE TOWN OF CALEDON
Plaintiff
– and –
DARZI HOLDINGS LTD., LAYTH RAFAT SALIM AKA CARLO SALIM AND RAFAT GENERAL CONTRACTOR INC.
Defendants
REASONS on motion
Schabas J.
Released: September 12, 2019