COURT FILE NO.: CV-20-00000273-0000
DATE: 2022/09/28
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE CORPORATION OF THE CITY OF BELLEVILLE and BRETT FORESTELL, Chief Building Official for the City of Belleville
Applicants
– and –
STEWART MCDONALD
Respondent
Jennifer Savini, for the Applicants
Self-represented Respondent
HEARD: March 4 and April 5, 2022
APPLICATION UNDER RULE 14.05(2) AND SECTION 38 OF THE BUILDING CODE ACT,1992
REASONS FOR JUDGMENT
RYAN BELL j.
Overview
[1] Mr. McDonald is the owner of a residential property at 402 Mudcat Drive (the “Property”) in the City of Belleville. In May 2020, the City issued a Property Standards Order (the “Order”) to Mr. McDonald. Among other things, the Order required Mr. McDonald to remove all “derelict” vehicles from the Property, including discarded vehicle parts.
[2] Mr. McDonald has complied with the Order save and except for the requirement to remove the vehicles from the Property. Mr. McDonald disputes that the vehicles are derelict. He also maintains that the City has no authority to inspect the Property and enforce the property standards by-law in relation to the Property.
[3] Contrary to Mr. McDonald’s submission, the City is authorized to inspect and enforce the property standards by-law in relation to the Property. I find the vehicles are inoperative within the meaning of the property standards by-law and they have been parked or left on the Property. Mr. McDonald is required to remove the vehicles from the Property within 30 days.
Legislative framework
[4] The Building Code Act, 1992[^1] provides that a municipality may pass a by-law prescribing standards for the maintenance and occupancy of property within the municipality and requiring property that does not conform with the standards to be repaired and maintained to conform with the standards. Section 15.2(1) provides:
Where a by-law under section 15.1 is in effect, an officer may, upon producing proper identification, enter upon any property at any reasonable time without a warrant for the purpose of inspecting the property to determine,
(a) whether the property conforms with the standards prescribed in the by-law; or
(b) whether an order made under subsection (2) has been complied with.
[5] An officer who finds that a property does not conform with any of the standards prescribed in a by-law passed under section 15.1 may make an order giving particulars of the repairs to be made, the time for complying with the terms and conditions of the order, and the date for giving notice of appeal from the order: Building Code Act, 1992, s. 15.2(2). An owner or occupant who has been served with an order made under s. 15.2(2) may appeal to the property standards committee within 14 days after being served with the order. An order that is not appealed within the prescribed time is deemed to be confirmed: Building Code Act, 1992, ss. 15.3(1) and (2).
[6] The chief building official may apply to the Superior Court of Justice for an order directing a person to comply with a provision of the Building Code Act, 1992 and the judge hearing the application may make an order directing compliance or such other order as the judge thinks fit: Building Code Act, 1992, ss. 38(1) and (2).
[7] By-law no. 2012-79 (the “Property Standards By-Law”)[^2] was passed by the Council of the City under s. 15.1(3) of the Building Code Act, 1992. Section 3.10.3 of the Property Standards By-Law provides:
Any vehicle, including a trailer, which is in a wrecked, discarded, dismantled, inoperative or abandoned condition shall not be parked, stored or left in a yard but this shall not prevent the occupant of any premises from repairing one vehicle for his own use but not for commercial purposes, while such repair is actively carried out.
[8] By-law no. 2014-120, enacted under the Municipal Act, 2001,[^3] to provide for “the maintenance of land in a clean and clear condition”, defines “derelict motor vehicle” to mean:
a motor vehicle that is disassembled, dismantled or in an inoperable condition and includes a motor vehicle that does not have valid plates and permits in accordance with the Highway Traffic Act.
Facts
The Order and this Application
[9] On May 27, 2020, the City issued Property Standards Order No. BEP20200270 to Mr. McDonald requiring that, by June 19, 2020, he:
• cut and maintain all long grass and weeds at the Property;
• remove all derelict vehicles from the Property, including all discarded vehicle parts throughout the Property;
• keep all accessory structures in good repair; and
• remove all garbage and debris from the Property.
[10] On June 9, 2020, the City received a notice of appeal from Mr. McDonald, challenging the City’s authority to enforce the Property Standards By-Law and the basis for the Order. Mr. McDonald refused to pay the appeal fee and the appeal was therefore not approved for filing.
[11] On June 18, 2020, Mr. McDonald requested an extension of the deadline for compliance with the Order. Mr McDonald was granted an extension until August 18, 2020. On August 19, 2020, Mr. McDonald refused to allow a by-law enforcement officer to re-inspect the Property.
[12] On April 12, 2021, on consent of the parties, Scott J. ordered that Mr. McDonald permit property standards officers to conduct an inspection of the Property for the purpose of providing details to Mr. McDonald of the steps necessary to bring the Property into compliance with the Order. As a result, by May 2021, Mr. McDonald brought the Property into compliance with the Order with one exception: the vehicles were not removed from the Property.
[13] At a hearing on October 25 2021, Tranmer J. found that “[a] vehicle parked on private property that does not have a license plate or current sticker is not for that reason alone in noncompliance with the Property Standards Bylaw s. 3.10.03 as being ‘in a wrecked, discarded, dismantled, inoperative or abandoned condition.’” The application was adjourned to permit Mr. McDonald to serve and file affidavit evidence with respect to the condition of the vehicles photographed in the City’s application record.
The vehicles on the Property
[14] In his affidavit, Mr. McDonald provided photographs of all the cars and trucks on the Property. On cross-examination, Mr. McDonald was asked about each vehicle.
[15] Mr. McDonald testified that the “blue ’78 half ton” “quit running...probably six years ago.” When asked if the vehicle would start if he were to put keys in the ignition, Mr. McDonald responded:
I wouldn’t do that because – I can probably get it to run but before I would do that I would make sure that I lubricated the cylinder walls by taking the spark plugs out, and I would take and disconnect the carburetor and just pour gas down with a can because it’s been sitting long enough that I wouldn’t want to burn that old gas that’s in the gas tank...[b]ecause then I would screw up my carburetor...so, I would just pour the gas down and turn it over and make it start. But it would take me a little while to get it to do that...because it hasn’t run in a while.
[16] The following exchange then ensued:
Q. So at this point you don’t know whether you’d – would be able to start it up?
A. Not right away, no. I’d have to do a little bit of work on it because I don’t want to burn bad gas and then have to go and rebuild a carburetor, because that wouldn’t make sense.
Q. And you’d need to check the brakes as well to make sure they were working?
A. I would look underneath and make sure the lines are all good and not really corroded or anything like that. Because, like I say, it’s been sitting there for five years or six years.
[17] Mr McDonald testified that the “blue three ton truck” ran when he parked it on his Property “[quite] a while ago” but that he has “never moved it or even tried to start it.” He agreed that the truck was parked on the Property approximately 15 years ago and he has not bothered to try to start it since:
Q. But you wouldn’t be able to put the keys in the ignition and start it right now?
A. Not right now, no. Not without some work because it sat so long.
[18] The grey station wagon has been “sitting for quite a while too.” Mr. McDonald “blew the motor in it” and agreed that he would not be able to drive this vehicle right now.
[19] The Toyota Tercel has been sitting in the same location for “four years anyway.” Mr. McDonald testified that he could drive it:
A. – if I put a battery in it and I disconnect the carburetor, because I don’t want to get dirt in it, and if I pour gas in it and then had somebody in there and if they turn the key on it would start.
Q. Would you be able to drive that one around?
A. Well, I would after I cleaned the gas out of the gas tank. And I would check it too to make sure that everything is okay underneath it because it sits for a while and it’s been in the grass for a while.
[20] Mr. McDonald agreed that he would have to do “a few steps” before he could actually drive the Toyota Tercel around.
[21] The brown sports car has been sitting on a trailer on the Property in the same location for about 12 years. The tires are currently flat. The only time Mr. McDonald has had this vehicle running is when he drove it on the trailer. He agreed that it would not start because it has not been driven for 12 years but testified that “it wouldn’t take much to get it going other than a lot of work.”
[22] The brown Corvair has been sitting in the same location for “four years anyway.” Mr. McDonald agreed that it would not be driveable right now: “No, I would have to just pour some gas in the carburetor and then start it, put a battery in it.” He would also check the brake lines before he drove it.
[23] The grey van does not, at present, have a battery. It has been sitting “two to three years.”
[24] The brown Saturn does not, at present, have brakes. Mr. McDonald was asked about being able to drive it on the highway:
Q. Okay. You wouldn’t be able to drive it on the highway because it doesn’t have brakes, correct?
A. Because of the – Well, I put all new brake lines in, right? From the front to the back wheels? And then I didn’t connect the brake lines into the back wheels because I had it all jacked up to do that and one of the studs broke where you take the tire off, and I was trying to get the hub out and I broke it off because I put too much pressure on it. And so now I have to get it punched out and I have to take heat with a torch and – and punch out the stud and then put a new stud in.
Q. Okay so –
A. And then I can finish putting the brake lines on it – the brake lines. And then I bleed the brakes.
Q. So that one’s going to take some time to – to be able to drive it?
A. Oh, when I’m ready to drive it, it would probably take me a couple of hours.
Q. Okay, but you can’t drive it right now?
A. I can drive it, yeah. I can go and drive it if – if you want. I just wouldn’t drive it very fast because it’s got no brakes.
[25] None of these vehicles has a current licence plate or vehicle permit.
The City is authorized to enforce the Property Standards By-Law against Mr. McDonald
[26] Mr. McDonald’s central argument is that the City has no jurisdiction over private property and therefore, the City is not entitled to regulate vehicles in his yard. He says that, as owner of the Property, he is entitled to do anything on the Property that he wishes.
[27] Mr. McDonald has filed hundreds of pages in support of his position. The statutory provisions on which he relies include: s. 35(1) of the Criminal Code,[^4] ss. 7 and 8 of the Canadian Charter of Rights and Freedoms,[^5] the Municipal Act, 2001, the Building Code Act, 1992, and the Limitations Act, 2002.[^6] He has referred me to numerous authorities, including: Ontario (Attorney General) v. Rowntree Beach Assn.,[^7] Brown v. Belleville (City),[^8] Georgian Bluffs (Township) v. Moyer,[^9] and Town of Trenton v. B.W. Powers & Son Ltd..[^10]
[28] Mr. McDonald’s position is incorrect.
[29] Municipalities, including the City, are created by the Province of Ontario to be “responsible and accountable governments with respect to matters within their jurisdiction”; they are given powers and duties under the Municipal Act, 2001 and other statutes for the purpose of providing “good government” with respect to such matters: Municipal Act, 2001, s. 2. Under the Municipal Act, 2001, a municipality is given broad authority to pass by-laws to enable the municipality to govern its affairs as it considers appropriate.
[30] The Building Code Act, 1992 expressly authorizes a municipality, including the City, to enact municipal property standards. “Property” is broadly defined in that Act as follows:
“property” means a building or structure or part of a building or structure, and includes the lands and premises appurtenant thereto and all mobile homes, mobile buildings, mobile structures, outbuildings, fences and erections thereon whether heretofore or hereafter erected, and includes vacant property.[^11]
[31] “Property” as defined in the Building Code Act, 1992 includes 402 Mudcat Drive.
[32] The Building Code Act, 1992 also expressly authorizes an officer to enter upon “any property at any reasonable time without a warrant” for the purpose of inspecting the property to determine whether the property conforms with the standards prescribed in the by-law or whether a property standards order has been complied with.[^12]
[33] The Building Code Act, 1992 further provides that a municipality may cause the property to be repaired or demolished if a property standards order is not complied with[^13] and authorizes a municipality to require a person to pay an administrative penalty if a person fails to comply with a property standards by-law or order.
[34] The Property Standards By-Law was enacted in accordance with s. 15.1 of the Building Code Act, 1992. The Property Standards By-Law applies to the Property. The City is entitled to enforce the Property Standards By-Law in relation to the Property.
[35] The Court of Appeal’s decision in Georgian Bluffs does not assist Mr. McDonald. In that case, the trial judge dismissed the Township’s claim for an order requiring the appellant to clean up his entire property because he found that the appellant had established that his use of the property qualified as a legal non-conforming use with respect to the by-law provisions relied on by the Township. The trial judge found that the Township had trespassed upon the appellant’s property and had removed chattels belonging to the appellant. The trial judge rejected the appellant’s other claims and denied the appellant his costs of the trial. On appeal, the Court of Appeal awarded the appellant his costs of the trial but otherwise dismissed the appeal. Georgian Bluffs does not stand for the proposition that a municipality does not have the authority to enact property standards by-laws or to enforce those by-laws in the manner prescribed in Building Code Act, 1992.
[36] Nor does Rowntree Beach assist Mr. McDonald. Rowntree Beach was an action for a declaration about the ownership of land. The trial judge dismissed the plaintiff’s claim and granted the defendants’ counterclaim for a declaration as to ownership of the lands.
[37] The City is entitled to an order confirming that it has the authority to enforce the provisions of the Property Standards By-Law against Mr. McDonald.
The vehicles on the Property are inoperative
[38] Based on the evidence before me, including Mr. McDonald’s testimony on cross-examination, I have no hesitation in finding that each of the eight vehicles on the Property is in an inoperative condition. Each would require some work before it would either start or be driveable. Most have been sitting on the Property, in the same location, for four years or more. Some are missing critical parts, such as a battery or brakes. They are not functioning; they are not in working order.
[39] I find that each of the eight vehicles is in an inoperative condition. Each has been left in the yard on the Property. Mr. McDonald is required to remove the eight vehicles within 30 days, failing which the City or its agents may enter onto the Property and cause the removal to be completed and to add the costs of doing so onto the Property’s tax roll.
Disposition
[40] The application is allowed. I order as follows:
Mr. McDonald is hereby directed to bring 402 Mudcat Drive into compliance with the Property Standards By-Law in accordance with the Order by removing the blue ’78 half ton, the blue three ton truck, the grey station wagon, the Toyota Tercel, the brown sports car, the brown Corvair, the grey van, and the brown Saturn from 402 Mudcat Drive to the written satisfaction of a property standards officer of the City within 30 days, failing which the City and/or its agents may enter onto 402 Mudcat Drive and cause the removal to be completed and add the costs of doing so onto the tax roll of 402 Mudcat Drive.
It is hereby confirmed that the City has the authority to enforce the provisions of the Property Standards By-Law against Mr. McDonald, including the authority to enter onto 402 Mudcat Drive to inspect and carry out the terms of any property standards order that has not been complied with, in accordance with ss. 15.1 to 15.8 inclusive of the Building Code Act, 1992.
[41] As the successful party, the City is presumptively entitled to its costs of the application. The City has uploaded its Bill of Costs to CaseLines. If the parties are unable to agree on costs of the application, the City may file any additional submissions, limited to a maximum of three pages, by October 12, 2022. Mr. McDonald may file responding submissions, also limited to a maximum of three pages by October 26, 2022. Submissions filed after these deadlines will not be considered.
Madam Justice Robyn M. Ryan Bell
Released: September 28, 2022
COURT FILE NO.: CV-20-00000273-0000
DATE: 2022/09/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE CORPORATION OF THE CITY OF BELLEVILLE and BRETT FORESTELL, Chief Building Official for the City of Belleville
Applicants
– and –
STEWART MCDONALD
Respondent
REASONS FOR JUDGMENT
Ryan Bell J.
Released: September 28, 2022
[^1]: S.O. 1992, c. 23, s. 15.1(3).
[^2]: As amended by By-law 2018-82.
[^3]: S.O. 2001, c. 25.
[^4]: Section 35(1) of the Criminal Code codifies the defence of use of force in defence of property.
[^5]: Being Part I of the Constitution Act, 1982.
[^6]: S.O. 2002, c. 24, Sched. B.
[^7]: 17 O.R. (3d) 174 (Gen. Div.), 1994 7228 (ON SC).
[^8]: 2012 ONSC 2554.
[^9]: 2012 ONCA 700.
[^10]: 1969 13 (SCC), [1969] S.C.R. 584.
[^11]: Building Code Act, 1992, s. 15.1(1).
[^12]: Building Code Act, 1992, s. 15.2(1).
[^13]: Building Code Act, 1992, s. 15.4.