COURT FILE NO.: CR-00000095-00AP
DATE: 20210426
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Dennis Cibulka, Appellant
-and-
City of Toronto, Respondent
BEFORE: F.L. Myers J.
COUNSEL: Michael Gauthey, for the City of Toronto Dennis Cibulka in person
HEARD (by telephone): April 22, 2021
ENDORSEMENT
[1] Mr. Cibulka appeals against an order made by Property Standards Officer Jaan Sepp on September 16, 2019 that provides, in part:
Location and Description:
Porch: The porch and/or the supporting structural members(s) is not maintained in a clean and/or sanitary condition. Namely, the porch is hoarded with contaminated waste, garbage and debris. It can be seen that there are cardboard boxes, cat trees, plastic containers, toys, bags, bins, bottles, clothes, blankets, rubbish and food.
Required Action:
All contaminated waste and debris on the porch must be removed. All items listed in this order must be removed and/or cleared off the porch.
Compliance Date:
07-Oct-2019
[2] Mr. Cibulka appealed to the City’s Property Standards Committee. It upheld the order on November 25, 2019.
[3] I heard this appeal by trial de novo by telephone. Although Mr. Cibulka initially advised that he did not plan to participate for long and he did not plan to cross-examine any witnesses, he did both. Mr. Cibulka participated fully throughout the proceeding. He testified and cross-examined Property Standards Officer Sepp who testified for the City.
[4] The facts are generally not in dispute. Mr. Cibulka has a long history of collecting things discarded by other people and storing them outside his house. The goods are largely viewed objectively as others’ garbage. As is his right, Mr. Cibulka does not view them that way.
[5] For the past several years Mr. Cibulka has lived on the front porch of his house on a year-round basis. He says the interior of the house is uninhabitable because the Toronto Fire Department cut holes in his roof and consequently left the house exposed to water damage. He does not say why the Fire Department put holes in his roof or why he did not have the holes repaired. In any event, his house no longer has hydro or water service.
[6] As a result, Mr. Cibulka stores all the things he collects outside his house. This includes expired food, including meat, that he keeps in plastic or rubber containers or totes without refrigeration. He tells me that he needs the meat to eat and to feed the ten or so feral cats that he feeds. The pictures admitted as exhibits Nos. 1 through 3 show that the porch is piled bottom to top and throughout its length by things others have discarded and Mr. Cibulka has collected.
[7] Municipal Standards Officer Sepp gave evidence that a foul smell is emitted by the goods on the porch during warm months. Mr. Cibulka agreed that the food attracts flies in the summer and flies lay eggs leading to more flies.
[8] This is not Mr. Cibulka’s first, second or third time dealing with the City Standards Officers concerning his collecting issues. The City routinely checks up on Mr. Cibulka and cleans up his property.
[9] Mr. Cibulka is hostile and profane in dealing with the City’s officials including Officer Sepp. It was evident that Officer Sepp makes the best of difficult circumstances. Officer Sepp has nearly eight years of dealings with Mr. Cibulka. Yet Officer Sepp testified to making wellness checks on Mr. Cibulka on the weekend and that the City has delivered warm clothes to Mr. Cibulka at times.
[10] Mr. Cibulka knows that his collections violate municipal bylaws.
[11] Section 629-19A of the Municipal Code requires porches to be kept, “free from defects and hazards, …and in a safe, clean, sanitary condition and in good repair”.
[12] Mr. Cibulka views the City’s ongoing treatment of him as harassment and bullying. He wants to be left alone to live his life. But no man is an island Mr. Cibulka. The City’s by-laws apply to Mr. Cibulka as they apply to us all.
[13] Mr. Cibulka raised several issues as responses to the allegations made against him by the City.
[14] First, he says that he was bullied by the City for years and as recently as this month. On April 10, 2021, he was ordered to remove goods from his driveway by April 14, 2021. On April 20, 2021 he was given a further order to comply by April 23, 2021. He says he was still working on the first order so that the second order was harassment.
[15] This has nothing to do with the order under appeal from September, 2019 about the porch. However, even if misconduct could form the basis of a defence, I see none on these facts. Mr. Cibulka’s view that he was “working on it” is not a lawful excuse for failing to comply within the timeline ordered. He tells me that he intends to be working on his porch this weekend before my reserved decision is released. He has had since September, 2019 to get that done.
[16] Mr. Cibulka complains that in November, 2020, the City removed two Sepulka trees from his backyard. Once again this has nothing to do with the state of his porch in 2019 or today. In any event, Officer Sepp testified that they were an overgrown hazard.
[17] Mr. Cibulka complains that the City removed a fence that had been knocked down by his neighbour. He complains that the Municipal Standards Officers never gave him an order that required him to remove the fence. The standard form orders that are used by the Property Standards Officers have a tick-box specifically applicable to fences. None of the orders ever given to Mr. Cibulka had that box ticked.
[18] Mr. Cibulka also complains that by removing the downed fence, the City removed his evidence of his neighbour’s misconduct. This too has nothing to do with the state of his porch. Nor is it misconduct. Officer Sepp testified that he ordered the unused, downed fencing removed as garbage. It was not in use as a fence. I find that the fact Mr. Cibulka wanted to keep the fencing as “evidence” does not remove it from the scope of the bylaw. Mr. Cibulka was free to take pictures and he remains free to seek relief against his neighbours without having the actual downed fencing remaining lying on his property.
[19] Mr. Cibulka gets around by bicycle. He objects to the City having removed numerous discarded bicycles that he had collected and was storing at the back of his driveway. Officer Sepp agreed that the bylaw does not prevent someone from possessing bicycles expressly. It sets no maximum number of bicycles one can own. Officer Sepp removed the bicycles because he said Mr. Cibulka was using his driveway to store discarded, weathered, often rusted debris in breach of the bylaw provisions about outdoor storage of goods. This has nothing to do with Mr Cibulka's porch and I do not find it to be evidence of misconduct that could be probative of a more generalized complaint of harassment by the City (assuming that could amount to a defence).
[20] Mr. Cibulka told me that when the City wants him to throw things away, he puts them on his porch because the City is not allowed to go there. He as much as admitted the charge against him with this submission.
[21] Mr. Cibulka denies bringing home garbage. He says that his government benefits cheques are not sufficient to support him. He takes some pride in the fact that he feeds himself nevertheless. He testified, “No one feeds me. I bring home food and it goes bad eventually.”
[22] Mr. Cibulka has other legal problems. He has had proceedings against a mortgagee that has kept title to the property out of his name. He owes money to a veterinarian for surgery on feral cats. He has been barred from entering the premises of Pro Bono Law Ontario. He has a lawyer who seems to be willing to help him at times. But Mr. Cibulka was quick to condemn the lawyer for duplicity while at the same time continuing to rely on him and his apparent willingness to make house calls to Mr. Cibulka’s house.
[23] Mr. Cibulka argues that there is no specific ban on his bicycles or cat trees. He argues that his collections are not garbage, debris, or contaminated.
[24] The following is a picture of Mr. Cibulka’s porch taken by Officer Sepp on December 8, 2020. It is impassable and unusable. It is significantly more crowded with debris than when Officer Sepp made the order in September, 2019.
[25] I find that the piles of soiled, weather-damaged, open cardboard boxes, cat trees, plastic containers, toys, bags, bins, bottles, clothes, blankets, rubbish and food on Mr. Cibulka’s porch violate s. 629-19A of Chap. 629 of the Municipal Code.
[26] Due to the materials piled on Mr. Cibulka’s porch, I find it is an unsafe, unsanitary, unclean, unsightly, hazard to Mr. Cibulka and the occupants of the other half of his semi-detached home. To the extent that he collects feral cats and attracts rodents that are attracted to food and waste in the city, it is a hazard to the neighbourhood. Officer Sepp testified to seeing rodent droppings on Mr. Cibulka’s boxes.
[27] Under ss. 15.3 (3.1),(4), and (6), of the Building Code Act, 1992, S.O. 1992, c. 23, on this appeal, I can confirm or modify the order made by Officer Sepp to maintain the general intent and purpose of the by-law. In my view it is necessary and appropriate to modify the order as quoted above to meet the intention of the bylaw given the amount of time that has passed since the order was made and the continued build-up of material on the porch. I change the words quotes above under “Required Action” to say the following:
Everything must be removed and cleared off the porch. Mr. Cibulka may keep on the porch only one small welcome mat, one chair, and one side table, all of which must be fabricated expressly for outdoor use.
[28] In all other respects the order is confirmed. I provide no extra time for Mr. Cibulka to clean up his porch. Mr. Cibulka is incapable of removing the debris from his porch on his own. More time would not assist him.
[29] Mr. Cibulka sees his situation differently than others see it. He is 70 ½ years old and is not living an easy life. He needs help and has not been able to access the right supports as yet. I hope he will look for and accept help to get his house fixed and to learn to be more discerning in his collections. He needs to get his legal title problems resolved before he can get a reverse mortgage. He has not been able to sustain a relationship with legal advisors to resolve his legal problems.
[30] In the interim however, the porch needs to be cleared to protect Mr. Cibulka, his house, and his neighbours. If the City can refer him to social supports for people who share his approach to collecting and to help him sustain a legal relationship (possibly with the engagement of the Public Guardian & Trustee) perhaps a repeat of today’s hearing can be avoided.
[31] I do not know why it took from late 2019 until this past week to have this appeal heard. In future, I invite the City’s counsel to make known to a judge in Civil Practice Court that issues such as those presented by Mr. Cibulka need light touch case management and an efficient schedule pursuant to the Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region, Effective January 11, 2021, Part I, Section A (1)(d).
[32] It follows that I sustain the order of Officer Sepp dated September 16, 2019 subject to the modification made above.
[33] The City seeks no costs.
F.L. Myers J.
Date: April 26, 2021