ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CORPORATION OF THE TOWN OF CALEDON Plaintiff
– and –
DARZI HOLDINGS LTD., RAFAT GENERAL CONTRACTOR INC. and LAYTH RAFAT SALIM a.k.a. CARLO SALIM Defendants
Counsel: Melissa Winch and Robert Sniderman, for the Plaintiff
Bernie Romano and Jordan Nussbaum, for the Defendants
HEARD: February 3, 2021
F.L. Myers, J
REASONS FORF JUDGMENT
[1] The Town of Caledon moves to hold Darzi Holdings Inc., Rafat General Contractor Inc., and their owner/operator Layth Rafat Salim in contempt of the order made by Schabas J. dated September 12, 2019.
[2] The order contained the following terms:
THIS COURT ORDERS that the portion of the fence constructed by the Defendants on Town of Caledon property shall be removed no later than January 10, 2020, if no other arrangement or agreement has been reached with the Plaintiffs by December 11, 2019.
THIS COURT ORDERS that pursuant to s. 440 of the Municipal Act, 2001, the defendants are restrained from contravening Town of Caledon Zoning By-law 2006-50 and Site Plan By-law 2013-086 with respect to the use of the following properties:
(a) 12423 Coleraine Drive, legally described as PIN 144350-0736 LT, Part Lot 3, Concession 6 (Albion);
(b) 12423 Coleraine Drive, legally described as PIN 14350-0737 LT, Part Lot 3, Concession 6 (Albion); and
(c) 0 Nixon Road, legally described as PIN 14350-0347 LT, Part Lot 3, Concession 6 (Albion) designated as Parts 6 and 7 on Plan 43R-25381.
- THIS COURT ORDERS that paragraphs 3(b) and 3(c) of this Order come into force and effect on December 14, 2019.
[3] It is common ground that the court order was understood by all to mean that by December 14, 2019, the defendants were to stop using its three sites for storage of heavy equipment and operation of their business. And by January 10, 2020 they were to have taken down the fence erected on the Town’s land at the Nixon Road site unless they came to an agreement with the Town by December 11, 2019.
[4] This is an ongoing dispute with a lengthy history. There has been earlier civil litigation between the parties about these issues. The Town brought provincial offence charges against the defendants for the illegal use of their lands. The defendants pleaded guilty and paid an $18,000 fine. The Town says that although the defendants promised to stop violating the law in their sentencing submissions, the fine was just a license fee for the defendants to continue their illegal operations.
[5] The Town brought these proceedings to seek an order prohibiting the continuation of illegal storage and operations and to require the removal of the fence on its property among other things. The defendants’ position before Schabas J. is that they needed to December 14, 2019 to comply with para. 3. They also wanted to try to buy the Town’s property on Nixon Road, so they asked for time to negotiate to December 11, 2019 and then to January 10, 2020 to take down their fence if necessary.
[6] Despite knowing and agreeing to do what needed to be done, the fence is still up. Mr. Salim agrees that Colraine West was never fully cleared, He testifies that the Colraine West and Nixon sites were cleared but that due to the pandemic, he has had to use at least Nixon and Colraine West to keep his business open and his 500 employees employed. The plaintiff contests that there was ever compliance with the order. In light of the high burden on the Town, I am not prepared to make a finding of proof beyond a reasonable doubt on Colraine East on this record.
[7] The defendants do not deny that the plaintiff has proven the three elements of contempt from Carey at least on Nixon Road, Colraine West, and with respect to the fence.[^1] They ask the court to exercise its discretion not to allow the Town to jump to a contempt remedy at this unsettled time.
[8] I find that the Town has clearly made out that the order made by Schabas J. was known and understood by the defendants and was knowingly disobeyed in respect of Nixon Road, Colraine West, and the fence. Accordingly, subject to the issue of discretion, I find that the elements of contempt of court are proven beyond a reasonable doubt for those three breaches as alleged. I do not find proof beyond a reasonable doubt for Colraine East.
[9] Despite finding the elements of the offence proven to the requisite standard, the court has a residual discretion to limit its use. As noted by Cromwell J. in Carey:
The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders.
[10] The defendants say that they were working on the clean-up of their sites when the pandemic hit. They lost a contract with a customer who had allowed them to store heavy equipment – snowplows and blades- at the customer’s premises. They had nowhere else to store their equipment and to conduct their business with the social distancing and safety standards required by law except on Colraine West and Nixon.
[11] The defendants also say that they wanted to buy the Town’s land beside Nixon but cannot make a deal for it. They are in the process of applying for approval to build on the Nixon site. If they build, the zoning bylaw will allow them to use the land as they do now. They say that they cannot afford the development charges required by the Town in order to obtain permission to build.
[12] The defendants also established that they have engaged in some discussions with the Town toward filing a plan to rezone the Colraine sites. Under the Town’s processes, the time for the defendants to file their planning application has been extended until March 31, 2021.
[13] The defendants have also approached the provincial government to try to obtain a special Minister’s permit to allow them to use the land as they wish. They say, in unattributed hearsay, that the Province is supportive but it is waiting for the Town’s rejection of their application(s) before the Province acts.
[14] They summarize their submissions at para. 44 of their factum as follows:
Please note that Rafat is the owner of the subject lands, and is not doing anything illegal in our submission. We are cleaning the vehicles, social distancing in accordance with Province of Ontario guidelines (which means we need more, not less, space). It is not reasonable to deprive us the use of our own lands to store our vehicles during the coronavirus pandemic.
[15] I note that when they say they are not doing anything illegal, they are referring to the types of business activities that they are carrying on at their properties. They are not running an illegal casino or selling drugs. However, they ignore that they are indeed acting illegally in carrying on their business and storing their equipment at these sites. They have pled guilty to offences and been fined for this very conduct. They know that it is illegal. They currently are acting in violation of the order made by Schabas J.
[16] There is no doubt that the defendants are acting illegally knowingly.
[17] As to the fence on the Town’s land by the Nixon site, Mr. Salim testifies:
On two separate occasions, after the Order was released, we made the necessary application to purchase the lands with respect to the fence which is in dispute. These lands are remnant lands which cannot be used by the Town of Caledon for any practical purpose which would be in the public's interest. Our purchasing of same would obviate the need for the removal of a safe and legally constructed fence. The Town of Caledon is refusing to sell those lands to us. That is their prerogative, but it shows that we are making efforts to mitigate, and to comply with the Order and resolve these matters.
I understand that the Town of Caledon has asked other contractors to remove the fence, which was in issue before Justice Schabas. All of those contractors, to the best of my knowledge, have refused to contract with the Town of Caledon to remove the fence because they think it's a complete waste of time and resources, and they do not want to offer any support to the Town of Caledon for its unreasonable conduct. Notwithstanding the above, if the Town of Caledon wants to remove the fence it can take steps to do so, and Rafat and Darzi will continue to not take any steps to interfere with same. [Emphasis added]
[18] I do not understand this evidence. The possibility of the defendants buying the land was deliberately built into the order made by Schabas J. The order provides that if those discussions do not result in an agreement by December 11, 2019, the defendants were to have removed the trespassing fenced by January 11, 2020. The fact that the defendants made some efforts to buy the land that did not result in a deal is therefore not at all a response to the breach of the order.
[19] Para. 21 of Mr. Salim’s affidavit shows some contumelious i.e. motivated breach for the order. He says that no one else takes down their fence so he won’t either. He then tells the Town that it can come and do it if it wants. During the hearing I said that this seemed to be a thumbing of his nose at the court order.
[20] Mr. Romano also refers to an unattributed hearsay statement that even if the fence is taken down, the Ministry of Labour would require the defendants to fence-in their business operations at Nixon. It is therefore a waste to take down a fence only to put it back up again.
[21] There are two obvious answers to this argument. First, had the defendants complied with the court’s order as required, there would be no business operations at Nixon requiring a fence. In addition, Mr. Romano was not able to provide any basis to support his assertion that the Ministry of Labour would or could order a landowner to erect a fence that trespasses on its neighbour’s land. If it ordered the defendants to erect a fence on their own land, they are still required to remove their encroaching fence on the Town’s land as ordered by the court.
[22] Mr. Salim says that he needed more time to comply with the court’s order. But the defendants never went back to court to seek to vary its terms.
[23] I accept that the defendants’ business has probably been affected adversely by the pandemic. They have made no disclosure of their finances. However, Mr. Salim makes seemingly heartfelt and eloquent pleas such as the following:
Well let me -- let me explain one thing to you. We are -- when COVID hit, um a lot of the jobs had stopped, especially in the two months full lockdown. Um, some of the equipment we have to force to move them off site. Metrolinx reduced our contract almost by thirty percent. They -- due to the flow of the traffic at Metrolinx and this is standing 'til today, they, they removed almost twenty-five to thirty percent of our work. That means performance and financially they cut down the contract by thirty-five percent. And due to that, we had to move equipment off of the property because they closed the parking lot. They start closing the parking lot and put barricader because they don't have enough traffic at Metrolinx, so I had nowhere to go. I really literally I have nowhere to go and I've been trying to find a place to - to rent or - you know, my company is massive. I employ five hundred people. I literally don't have any place to go, be honest with you. I'm, I'm on the street. I don't really have no other alternative. Like this is happened, it's been - it's hard to fight, the pandemic and to stay above water and to keep five hundred employed. I mean, I'm working, yes, I am working and thankful for that, but I don't have -- I don't have the financial, I don't have -- we don't -- our company doesn't have the energy or any resources. If the Town, if that's what they want to do to me, I'm in the street. I have nowhere to go. I'm -- I'm at the City mercy. It's, it's, it's enough we trying to pay our taxes, our employees. I have not went (sic) for help to the government to ask to help me with any money, any financially. Like I'm -- I'm -- this is, this is worse than a war. We trying to fight to stay above water, and I'm using my energy. I expect to do all this fight, tell me to bring it -- to a institution -- and instead this -- we're, we're, ma'am we're in pandemic. People are sick, people are dying. I'm trying to keep my company busy, what did I do wrong? I'm -- I have five hundred people employed. You can go and ask the government, you can go and ask CRA, I haven't missed a payment. I haven't missed a payment to the City, I never call the City and say I'm not paying my taxes. This means I'm, I'm working. I'm working, yes. Do you tell me that I parked my equipment against the rules and regulation of your order, I did, but I did it because I wanted to stay above water. I wanna work, you know. I have nowhere place to go. I have nowhere. If you tell me to leave today you gonna put me on the street. Me and my business and the families. I have clearly have nowhere to go now.
[24] If this was his first time before the court, it would be easier to accept these words at face value. But the failed offer to buy the Town’s land beside Nixon, the failed effort to build on Nixon, the unfiled plan to re-zone Colraine, the plea of waste regarding the fence – all smack of self-serving reasons to delay complying court’s order but not a single, actual legal basis to do so. In the circumstances of this case, the pandemic may also be just another excuse for non-compliance.
[25] Assuming that what Mr. Salim says about the pandemic is 100% truthful, he is deciding to ignore the court’s order and the Town’s zoning laws because his companies cannot afford to comply. To me, that argument goes to sentencing not to the court’s discretion. Mr. Salim does not have the right to decide that his companies’ finances take precedence over compliance with the court’s injunction. If business hardship were a defence to compliance with an order, the law would truly be a paper tiger.
[26] On sentencing, the Town will argue that $18,000 turned out to be a license fee for the defendants and, no doubt, it will seek a greater penalty for the corporations. That is the time when the question of what the defendants can afford will be relevant.
[27] If the defendants had wanted or needed to try to vary the injunction, the court has been open and available throughout the pandemic. In Lima v. Ventura (Estate of), 2020 ONSC 3278, Emery J. held that the pandemic is not a basis to disobey an order of the court:
[26] Despite the precautionary measures that society has taken to protect individuals to the extent possible from exposure to COVID-19, parties are still expected to obey court orders in today’s environment. Chief Justice Morawetz confirmed this expectation in the Consolidated Notice to the Profession and others, effective May 19, 2020 and published on the ontariocourts.ca website, when he wrote under Part C, section 1:
“During this temporary suspension of in-court operations, counsel and parties are expected to comply with existing orders and rules of procedure, as well as procedures in this and other Regional Notices, to bring cases closer to resolution, to the extent they can safely do so through virtual means. This guidance also applies to self-represented parties.
[28] This is not a civil contempt in which a party has breached a procedural rule or committed a minor transgression with no effect beyond the parties. The Town alleges a criminal contempt of court. At issue is the defendants’ very public and persistent failure to comply with the law and flouting of an order of the court (with respect to the fence at minimum).
[29] I would not exercise the discretion to withhold a contempt remedy. The Town has not jumped too quickly. It has methodically and fairly tried to induce and then compel compliance with its laws. I do not know what else the Town could do now to get the defendants to do what the law requires. The time for the Town to chat with Mr. Salim and trust statements of an intention to comply has long since passed. His evidence is clear that the defendants will not comply because he says he cannot afford for the defendants to do so. On that basis they are guilty of contempt of court for the three breaches referred to above.
[30] Counsel are to arrange a case conference with me at a convenient time to discuss the process for sentencing. Counsel should discuss and try to agree on applicable procedures in advance.
[31] Costs reserved to sentencing.
FL Myers J
Released: February 8, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CORPORATION OF THE TOWN OF CALEDON Plaintiff
– and –
DARZI HOLDINGS LTD., RAFAT GENERAL CONTRACTOR INC. and LAYTH RAFAT SALIM a.k.a. CARLO SALIM Defendants
REASONS FOR JUDGMENT
FL Myers J
Released: February 8, 2021
[^1]: See: Carey v Laiken, 2015 SCC 17, at paras 33-35,