Court File and Parties

COURT FILE NO.: 148/18 DATE: 2020 04 21 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

GRAND RIVER CONSERVATION AUTHORITY Applicant C. Brown, for the Applicant

• and -

VIDHYA RAMDAS Respondent Self-Represented

HEARD: November 12, 2019

REASONS FOR DECISION

L. SHAW J.

OVERVIEW

[1] The respondent, Ms. Vidhya Ramdas (“Ms. Ramdas”), owns property in the Township of Amaranth (the “Township”). The property is regulated by the applicant, Grand River Conservation Authority (the “GRCA”).

[2] According to the GRCA, Ms. Ramdas requires a permit from it before doing any work on her property that may change or interfere with a wetland or to undertake any development, which includes site grading or the placement of material, within certain distances from a wetland. The GRCA alleges that even after being informed that a permit was required, Ms. Ramdas continued to do work on her property without applying for a permit. The GRCA therefore seeks an injunction prohibiting Ms. Ramdas from performing work that interferes with a wetland without the prior approval of the GRCA.

[3] This application was heard at the same time as another application commenced by the Township. The Township is also seeking a permanent injunction that the respondent be refrained from doing work on her property that contravenes its Site Alteration By-law. Although the evidence for both applications was the same, separate reasons will be released regarding that application.

[4] For the reasons outlined below, the GRCA’s application is granted.

[5] This application was commenced on August 7, 2018 and was first before the court on August 27, 2018. Although Ms. Ramdas had not yet filed responding materials, the court granted an interim injunction prohibiting her from causing or permitting the removal of vegetation or soils, grading or placing fill material on, extracting material from, or interfering with a wetland unless she first obtained a permit from the GRCA. Ms. Ramdas was also ordered to file her responding materials by September 7, 2018. She did not comply with that term of the order.

[6] The matter was next before the court on September 17, 2018 and was adjourned on consent to December 3, 2018. That date was adjourned, on consent, to March 4, 2019. On March 4, 2019, the matter was adjourned, on consent, to June 3, 2019.

[7] On June 3, 2019, the matter was adjourned to November 12, 2019, peremptory. On that date, Coroza J. ordered that no further adjournments would be granted unless leave was granted by the judge hearing the matter on November 12, 2019. Ms. Ramdas was ordered to file her responding materials by September 30, 2019. Coroza J. also ordered that if Ms. Ramdas did not file her responding materials, the presumption was that the matter would proceed on November 12, 2019 without any input or submissions from her. Ms. Ramdas did not file any responding materials.

[8] When the matter was before me on November 12, 2019, Ms. Ramdas requested a further adjournment. I declined to grant the adjournment. The reasons for the denial were twofold. First, the application was commenced in August 2018. Ms. Ramdas had 15 months to file responding materials, which she failed to do. Second, Ms. Ramdas failed to comply with two court orders to file her materials by certain fixed dates. As the matter had been adjourned on a number of occasions, I found that Ms. Ramdas had ample opportunity to either retain a lawyer or file her own material. Given the delays in the proceeding, I declined her request for a further adjournment and heard the application. Based on the order of Coroza J., Ms. Ramdas was aware that the matter would proceed if she did not file her responding material.

[9] Court orders are not recommendations or suggestions. On two separate occasions, Ms. Ramdas was ordered to file responding materials and she deliberately did not comply with those orders. When a party is self-represented, the court will often grant indulgences in order to ensure that access to justice is achieved and that the matter is dealt with substantively. For example, self-represented litigants are often unfamiliar with the various rules surrounding the court process, such as when materials must be served and filed.

[10] In this case, Ms. Ramdas was twice given dates to file her materials. She provided no acceptable explanation with respect to why she did not comply with those orders. She had 15 months to file material and the matter was adjourned a number of times. Given her deliberate non-compliance and the length of time that this application was outstanding, I declined to exercise my discretion to grant a further adjournment.

REVIEW OF THE APPLICABLE LEGISLATION

[11] Before reviewing the uncontested evidence in this matter, I will review the applicable legislation and the regulation the GRCA alleges Ms. Ramdas breached.

[12] This application is brought under r. 14.05(3) (d) and (g) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as it relates to the determination of rights that depend on the interpretation of a regulation and a request for injunctive relief. As the evidence is not contested and there are no materials facts in dispute, it is appropriate that this matter be heard by way of an application. The evidence relied upon by the GRCA includes the affidavits from three of its employees. It also relies on the affidavit evidence filed on behalf of the Township in the companion action.

[13] The GRCA is a corporation established pursuant to the provisions of the Conservation Authorities Act, R.S.O. 1990, c. C. 27, as amended (the “Act”). The GRCA is charged with the obligation of enforcing the provisions of the Grand River Conservation Authority: Regulation of Development, Interference With Wetlands and Alterations to Shorelines and Watercourses, O. Reg. 150/06, made pursuant to the Act (“O. Reg. 150/06”) within the Grand River watershed area.

[14] As set out in s. 20(1) of the Act, the objects of a conservation authority are to establish and undertake a program designed to further the conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals in the area over which it has jurisdiction. Conservation authorities have been granted the power to study and investigate the watershed and to determine a program whereby the natural resources of the watershed may be conserved, restored, developed and managed: Act, s. 21(1)(a).

[15] Section 5 of O. Reg. 150/06, made under s. 28 of the Act, states that “no person shall straighten, change, divert or interfere in any way with the existing channel of a river, creek, stream or watercourse or change or interfere in any way with a wetland.”

[16] The uncontested evidence is that the property owned by Ms. Ramdas is regulated by the GRCA in accordance with the Act due to the existence of wetlands and areas adjacent to wetlands as referred to in O. Reg. 150/06. Wetlands on the property form part of the Willow Brook Swamp Wetland Complex (“Complex”).

REVIEW OF THE EVIDENCE

[17] Ms. Ramdas owns and resides at the property with a municipal address of 504386 Highway 89 in the Township, legally described as Part Lot 32, Concession 5, Parcel 10 (“the property”).

[18] On July 4, 2018, Mr. Jason Wagler (“Mr. Wagler”), a Resource Planner with the GRCA, received an email from the Director of Planning at the Township indicating that a councillor had observed multiple truckloads of material entering the property. Mr. Wagler is responsible for the co-ordination of technical reviews, policy application and interpretation, processing permit applications and ensuring compliance with O. Reg. 150/06. He was also responsible for the investigation of any potential violation of the said regulation at the property.

[19] On July 5, 2018, Mr. Wagler and Ms. Kaitlyn Rosebrugh (“Ms. Rosebrugh”), a Regulations Officer with the GRCA, attended at the property. Mr. Wagler observed an excavator loading material into a dump truck. Both of these pieces of machinery were in the GRCA-regulated area behind the house on the property. He also observed a dump truck leaving the property. Ms. Rosebrugh’s evidence was that she also observed a large excavator extracting material behind the house and a fill pile on the west side of the house within the area that is regulated by the GRCA.

[20] When Mr. Wagler and Ms. Rosebrugh were at the property, there were three other individuals present: the operator of the excavator, a man with a shovel stamping material in the dump truck, and a person standing to the side of an excavated hole. That person indicated that he was the contractor/supervisor. He told Mr. Wagler that Ms. Ramdas had a GRCA permit. Mr. Wagler informed the contractor that he had done a search of the GRCA’s records which indicated that Ms. Ramdas did not have a permit. Mr. Wagler advised the contractor to therefore stop the work as it was in violation of a regulation. The contractor told Mr. Wagler that he would not stop the work as he did not believe a permit was necessary. Mr. Wagler’s evidence was that this person, who would not give him his name, was verbally abusive to him and threatened to throw him in the excavated hole if he did not leave the property. Ms. Rosebrugh’s evidence was that this individual also said that Ms. Ramdas was away for two weeks and that she had authorized him to complete the work. He also told Mr. Wagler that in his opinion, the GRCA did not have jurisdiction on the property.

[21] While on site, Mr. Wagler observed that site grading was occurring within the area regulated by the GRCA. He also observed that a large trench had been excavated and that the grading appeared to extend beyond the trench into the wetland. The soils in the trench were dark and appeared to be characteristic of a wetland. The contractor also confirmed that they were removing the peat and replacing it with fill material.

[22] On July 10, 2018, the Township received complaints regarding fill activities taking place at the property. The following day, Mr. Lammerding, a By-law Enforcement Officer with the Corporation of the County of Dufferin (the “County”) attended at the property. According to Mr. Lammerding, the Township contracts with the County to carry out by-law enforcement and therefore one of his responsibilities is to enforce the Township’s by-laws.

[23] When Mr. Lammerding attended at the property, he spoke with Ms. Ramdas’ son, Avi Ramdas, as Ms. Ramdas was not present. Mr. Ramdas told Mr. Lammerding that he did not think any permits were required for the fill activities. According to Mr. Lammerding, Mr. Ramdas handed him a cellphone and someone named Tina told him to leave the property. As Mr. Lammerding was leaving the property, he observed fill materials being deposited and removed from the property. He took photographs of a dump truck and excavator on the property.

[24] Mr. Lammerding prepared an investigation report detailing what occurred on July 11, 2018. According to that report, he observed a dump truck entering the property that appeared to be carrying broken concrete or concrete blocks. He observed this material being dumped in an area behind the house on the property. He then observed an excavator on the property loading a top soil/peat-like material into the dump truck that then left the property.

[25] On July 12, 2018, Ms. Rosebrugh chartered a plane and requested that the pilot circle the property. She observed a large yellow excavator extracting dark soil and placing the soil into a dump truck. She also observed a bulldozer on the site. The excavator was working away from the rear of the house and into the wetland boundary as mapped by the GRCA. Ms. Rosebrugh concluded that the development was continuing and expanding despite the GRCA’s July 5, 2018 request that the work end. Photographs taken from the plane were attached as exhibits to Ms. Rosebrugh’s affidavit.

[26] On July 13, 2018, Ms. Rosebrugh attended the Provincial Offences Court in Orangeville and swore an information to charge Ms. Ramdas. The charges on the information were for a violation under s. 28(16) of the Act. This section prohibits undertaking development or permitting another person to undertake development, in particular, the dumping and removal of material, without obtaining an authorization or a development permit in or on the areas within the jurisdiction of the GRCA, contrary to s. 2(1) of O. Reg. 150/06.

[27] According to a second information, Ms. Ramdas was also charged with changing or interfering with a wetland by removing or dumping fill material thereon, in violation of s. 6 of O. Reg. 150/06, thereby committing an offence contrary to s. 28(16) of the Act.

[28] On July 13, 2018, Mr. Lammerding prepared a Stop Work Order and Remedial Order against Ms. Ramdas. That Order stated as follows:

You are hereby ordered to cease immediately all excavation, alteration of the grade and placement of fill or soil on the Property and further to cease immediately all removal of fill, soil, peat or other native materials from this property.

You are further ordered to remove all imported material and to restore the grade of the Property to its original condition on or before July 23, 2018.

[29] The notice also indicated that the actions of site alteration, placing fill and removal of top soil/peat-like materials, without approvals or permits, carried with it the risk of possible legal action and penalties. The notice informed Ms. Ramdas that failure to comply with the Order would result in further legal action.

[30] On July 16, 2018, Mr. Lammerding personally delivered the Stop Work Order and Remedial Order to Ms. Ramdas. He posted it at the entrance to the property and sent Ms. Ramdas a copy by registered mail. When he attended at the property on July 16, 2018, Ms. Ramdas told Mr. Lammerding that she did not think she needed a permit for the fill activities.

[31] On July 19, 2018, Ms. Rosebrugh served Ms. Ramdas with a summons to appear in court.

[32] On August 11, 2018, Mr. Lammerding attended at the property again as the Township had received complaints about ongoing fill activities. While at the property, Mr. Lammerding was told by one of the contractors on site, Mr. Keith McDonald (“Mr. McDonald”), that Ms. Ramdas had been issued a building permit by the County to fix the foundation of her house. He believed that the permit also permitted the fill activities. Mr. Lammerding spoke to another contractor that day, Ms. Tina McDonald (“Ms. McDonald”), who told him that about 600 loads of fill had been imported to the property and that an equal amount of peat had been removed.

[33] While Mr. Lammerding was at the property on August 11, 2018, he observed two loads of fill arrive. Mr. Lammerding advised the contractor that the Stop Work Order remained in place.

[34] On August 13, 2018, Mr. Wagler received an email from the Township advising that site excavation was continuing at the property.

[35] On August 14, 2018, Mr. Wagler and Ms. Rosebrugh conducted a site inspection of the property from the roadside. They both observed an excavator dumping soil into a dump truck in the GRCA-regulated area.

[36] On August 16, 2018, Mr. Wagler and Ms. Rosebrugh attended a meeting with Ms. Ramdas and the contractors, Mr. and Ms. McDonald. Ms. Ramdas gave Mr. Wagler a copy of the building permit issued by the County on July 26, 2018 to repair the foundation around the home. Mr. Wagler’s evidence was that he observed the permit drawing, but did not observe any mention or drawing depicting the excavation and filling of material beyond the foundation of the house.

[37] A further meeting was arranged for August 22, 2018 at the property. Mr. Wagler’s evidence was that he saw Mr. McDonald operating a small excavator at the front of the house. Mr. McDonald informed both Mr. Wagler and Ms. Rosebrugh that the on-site meeting was cancelled and that they did not have permission to access the property.

[38] Mr. Robert Messier (“Mr. Messier”), an ecologist with the GRCA, also attended for the on-site meeting at the property on August 22, 2018. He was to review the extent of the development and the wetland limit. Mr. Messier left the property with Mr. Wagler and Ms. Rosebrugh when the contractor, Mr. McDonald, told them the meeting had been cancelled.

[39] On August 31, 2018, Ms. Rosebrugh obtained a search warrant to access the property for the purposes of collecting evidence for charges laid under s. 28(16) of the Act.

[40] On September 11, 2018, Mr. Wagler, Ms. Rosebrugh and Mr. Messier attended at the property to execute the search warrant to obtain evidence of development in the wetland. Both Mr. Wagler and Ms. Rosebrugh observed that fill placement and grading had occurred within the wetland and the regulated area adjacent to the wetland. That same day, photographs and soil samples were taken. Ms. Rosebrugh observed several excavated areas where dark organic soils had been extracted by machinery and imported fill had been placed. A large yellow excavator and a bulldozer were parked on the property.

[41] Mr. Messier’s evidence was that he assisted and observed Mr. Wagler collect Global Position System (“GPS”) co-ordinates to delineate the extent of the development and the wetland limit. Mr. Wagler directed Ms. Rosebrugh to photograph areas of exposed soils and standing water. Mr. Messier observed the vegetation and used his soil probe to determine the presence and extent of wetland indicator soils.

[42] Using the GPS co-ordinates, Mr. Wagler concluded that the development had extended 64 metres from the rear of the house and that approximately 5,235 square meters of wetland had been impacted by the development.

[43] Mr. Wagler’s evidence was that wetland ecosystems, such as the Complex in which the property was located, exist as the result of multiple sensitive interactions between hydrology and vegetation. Therefore, the ecosystems are affected by changes and disturbances such as those caused by the removal of wetland soils and by the site grading in and adjacent to the wetland. According to Mr. Wagler, wetlands normally improve water quality by acting as a filtration system and influence water quantity by retaining large amounts of water, enhancing ground water infiltration and augmenting the base flow in adjacent watercourses and aquifers.

[44] Mr. Wagler’s evidence was that in this case, the concern is the removal of wetland soils and impact on the hydrology function of the wetland. His evidence was that such harms are irreparable in the sense that complex ecosystems, such as in the Complex, have taken thousands of years to develop. Their characteristics and functions cannot be fully restored once they have been disturbed in the way that Ms. Ramdas’ actions have done and are threatening to do.

ISSUES

[45] There are two issues to be determined on this application:

1. Were Ms. Ramdas’ actions in breach of O. Reg. 150/06?
2. If so, is injunctive relief the appropriate remedy?

ANALYSIS

Issue #1: Were Ms. Ramdas’ Actions in Breach of O. Reg. 150/06?

[46] The uncontroverted evidence is that Ms. Ramdas’ property is regulated by the GRCA in accordance with the Act. The GRCA has authority to enforce provisions of O. Reg. 150/06. Pursuant to s. 5 of the said regulation, Ms. Ramdas required a permit from the GRCA to engage in activities on her property that would change or interfere with a wetland or that involved development within 120 metres of provincially-significant wetland and wetlands greater than or equal to two hectares or within 30 meters of all other wetlands.

[47] The following uncontroverted evidence leads me to conclude that Ms. Ramdas was in breach of O. Reg. 150/06:

• The observations made by Mr. Wagler and Ms. Rosebrugh on July 5, 2018 of an excavator loading material into a dump truck and the dump truck leaving the property;
• Ms. Rosebrugh’s observation on July 5, 2018 of an excavator extracting material behind the house and a fill pile on the west side of the house within an area that is regulated by the GRCA;
• Mr. Wagler’s observation on July 5, 2018 that site grading was occurring within the area regulated by the GRCA;
• Mr. Wagler’s observation on July 5, 2018 that a large trench had been excavated, that grading appeared to extend beyond the trench into the wetland, and that the soils in the trench were dark and appeared to be characteristic of a wetland;
• The contractor informed Mr. Wagler on July 5, 2018 that they were removing peat from the property and replacing it with fill;
• Mr. Lammerding’s observation on July 11, 2018 of a dump truck entering the property and dumping what appeared to be broken concrete or concrete blocks;
• Mr. Lammerding’s observation of an excavator loading top soil/peat-like material into a dump truck and the dump truck leaving the property;
• Ms. Rosebrugh’s observations from a plane on July 12, 2018 of an excavator working away from the rear of the house and into the wetland boundary, and extracting dark soil and placing it into a dump truck;
• Mr. Lammerding was informed by one of the contractors on August 11, 2018 that 600 loads of fill had been imported to the property and an equal amount had been removed;
• Mr. Wagler’s and Ms. Rosebrugh’s observation on August 14, 2018 of an excavator dumping soil into a dump truck at the property;
• Ms. Rosebrugh’s observation on September 11, 2018 of several excavated areas where dark organic soils had been extracted and replaced with imported fill and that fill placement had occurred within the wetland and regulated area adjacent to the wetland;
• Mr. Wagler’s evidence that according to GPS co-ordinates, development extended approximately 64 meters from the rear of the house and that approximately 5,235 square metres of wetlands had been impacted by development; and
• A number of photographs filed as evidence also depict the machinery on the property and the various fill activities described by the witnesses. These photographs also confirm that the work done was well beyond the area around the foundation of the house.

[48] Based on this evidence, which is uncontested and which I accept, the GRCA has proven that Ms. Ramdas was performing activities on her property for which a permit is required by the GRCA pursuant to s. 2 of O. Reg. 150/06. However, Ms. Ramdas did not obtain a permit as required.

[49] I therefore find that Ms. Ramdas’ actions have contravened O. Reg. 150/06.

Issue #2: Is Injunctive Relief the Appropriate Remedy?

[50] The GRCA is seeking a permanent injunction that Ms. Ramdas be prohibited from using the property other than in accordance with O. Reg. 150/06 and that she refrain from any activities that interfere with the wetland by removing material or grading or depositing fill in the regulated area, unless she first obtains permission from the GRCA.

[51] Where a law is flagrantly violated, the court ought to assist a government authority’s efforts to enforce the law by granting an injunction to restrain further breaches: Municipality of Metropolitan Toronto v. N.B. Theatrical Agencies Inc. (1984), 44 O.R. (2d) 574 (S.C.), at p. 580.

[52] The three-part test for an interim injunction is: (1) whether there is a serious issue to be tried; (2) whether the moving party would otherwise suffer irreparable harm; and (3) whether the balance of convenience favours granting the injunction: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at paras. 77-80.

[53] In order to be entitled to injunctive relief, it is sufficient for a conservation authority to demonstrate a flagrant breach of a regulation. It does not need to demonstrate irreparable harm: Toronto (City) v. Merit Corp., [1983] O.J. No. 466 (S.C.); Schein v. Saugeen Valley Conservation Authority, [1995] O.J. No. 1543 (C.J.).

[54] In seeking a statutory interim injunction, irreparable harm and balance of convenience do not need to be considered. This is because the public authority is presumed to be acting in the best interests of the public and a breach of the law is considered to be irreparable harm to the public interest: York (Regional Municipality) v. DiBlasi, 2014 ONSC 3259, at para. 62.

[55] In this case, the GRCA is seeking a permanent injunction to enforce a regulation. It is therefore not necessary for the GRCA to lead compelling evidence that the injunction is warranted, absent exceptional circumstances. As noted by the court in Newcastle Recycling Ltd. v. Clarington (Municipality), [2005] O.J. No 5344 (C.A.), at para. 32: “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.”

[56] In this case, the GRCA attempted to enforce the regulation. Ms. Ramdas’ contractor was told to cease the activities, yet the activities continued. Even after Ms. Ramdas was charged with violations of the Act, she did not cease the development on her property. These steps taken by the GRCA did not prevent Ms. Ramdas’ activities as she continued to perform development on her property for which she did not have a permit. As a result, a stronger remedy in the form of an injunction is required to enforce compliance. An injunction is required particularly where there has been a persistent and deliberate flouting of the regulation: City of Toronto v. Polai (1970), 1 O.R. 483 (C.A.); Lakehead Region Conservation Authority v. Demichele, [2009] O.J. No. 5858 (S.C.), at para. 41.

[57] It is also in the public interest to protect the environment of wetlands and therefore in the public interest to ensure compliance with the Act: Lakehead Region Conservation Authority v. Demichele, 2010 ONCA 480, at para. 3.

[58] Given the flagrant breach of the regulation by Ms. Ramdas, even after being charged with an offence under the Act, a permanent injunction is necessary to ensure compliance with the Act.

ORDER

[59] A permanent injunction is granted prohibiting Ms. Ramdas from using the property otherwise than in accordance with O. Reg. 150/06. In particular, Ms. Ramdas is prevented from proscribing any interference with a wetland by the removal of material, grading, or depositing of fill in the regulated area, unless permission for any such activity has first been obtained from the GRCA.

[60] The GRCA is entitled to its costs. According to its Bill of Costs, its partial indemnity costs, inclusive of HST is $8,793.34 and its disbursements are $2,246.31, inclusive of HST. Those fees are reasonable, save and except for travel time of $782 which I find should not be paid by the respondent.

[61] Accordingly, I order that Ms. Ramdas shall pay GRCA costs, inclusive of HST and disbursements of $10,000 by October 1, 2020.

L. Shaw J. Released: April 21, 2020