COURT FILE NO.: CV-22-1297

DATE: 20221206

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

The Corporation of The City of Markham

Applicant

– and –

Martin Ross

Respondent

Chris Barnett and Andrew Rintoul, Counsel for the Applicant

Martin Ross, Acting in Person

HEARD: October 11, 2022

REASONS FOR DECISION

FRASER J.:

I. Nature of the Application

[1] This case is about whether Martin Ross can do what he wants with his backyard, cut down trees and install a concrete sports pad, or whether he needs the permission of the City of Markham to make these kinds of changes to his backyard.

[2] Martin Ross owns a property (the Property) in the Heritage District in Unionville, which is a village within the City of Markham, Ontario. Mr. Ross purchased the Property in November, 2011. Mr. Ross’ home (the Building) is on the Property. It is the subject of a Heritage Easement Agreement (the Easement Agreement), entered into by the previous owners of the house in 2004.

[3] The City says that Mr. Ross’ whole property is subject to the Easement Agreement. Mr. Ross says the Easement Agreement applies only to the Building, not the Property, and, therefore, not his backyard.

[4] The Building was designated a heritage home under Part IV of the Ontario Heritage Act, R.S.O. 1990, c. O.18 in 1990. Known as the John M. Ramer house, it was built between 1859 and 1870. According to the Easement Agreement, Mr. Ramer and his brother opened the Ramer Cheese Factory on the site. The business did not last long as Mr. Ramer and his brother contracted smallpox and died within 10 days of one another in 1874.

[5] On or about March 2021, the City learned that Mr. Ross was removing trees from and grading his Property. Excavators were present on the Property. The City objected because it interprets the Easement Agreement as requiring Mr. Ross to obtain City approval to make the kinds of changes that Mr. Ross was making. It characterizes those changes as being changes to the general appearance and topography of the lands on the Property.

[6] The City issued a Notice to Comply, but Mr. Ross did not comply. The City issued a notice for him to stop. But he did not. He kept going. He says he kept going because he was allergic to some of the trees, and that some of them were invasive species.

[7] Not only did he cut down trees, Mr. Ross graded the backyard. The City kept telling him to stop. He eventually laid a concrete pad for a hockey rink. The concrete pad is approximately 16 metres by 27 metres and 21.6 centimetres deep. Mr. Ross used a crane to bring in boards for the rink. In January 2021, he installed a cover over the rink, but the City and Fire Department shut that down.

[8] Mr. Ross did not stop there. He put in a cabana, made from a shipping container. He added new trees.

[9] Mr. Ross’ position is that nothing in the portion of the backyard where the sports pad is located is of cultural, historical, or architectural significance. The sports pad is not visible from the street and the backyard is surrounded by many non-heritage homes built in the 1980’s and 1990’s. He hopes to further develop the backyard. He says that politics is driving the City’s objections and he just wanted to build a rink for his kids.

[10] Mr. Ross says that he is harassed by the City as City officials have been at his Property over 60 times. He claims that he has improved his Property. He argues that none of the work that he has done on the Property detracts from the heritage home, that the improvements are not visible from the street, and that there is no heritage aspect to the backyard as he is bordered by modern homes.

[11] The City says that it has sole discretion to determine whether the terms of the Easement Agreement have been breached and that it has the right to enter the Property and remedy the breach. The City asks me to declare that it has that right and to declare that Mr. Ross has breached his obligations under the Easement Agreement.

[12] The City also seeks an injunction preventing Mr. Ross from doing any rear yard work in breach of the terms of the Easement Agreement and any applicable City by-laws.

II. Issues

[13] In making my decision, I must assess:

a. What is the jurisdiction of the Court to hear this matter?

b. What are the terms of the Easement Agreement?

c. Does the City have discretion to determine whether there is a breach?

d. Did Mr. Ross breach the Easement Agreement?

e. Can the City enter Mr. Ross’ property to fix what Mr. Ross did?

f. Is the Easement Agreement unconscionable?

g. If the City has the right to enter the Property to remedy the breach, is that a breach of Mr. Ross’ right to be free from unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms?

h. Should there be declaratory relief?

i. Should there be a permanent injunction?

[14] Each of these will be examined in turn.

III. Analysis

A. Jurisdiction of the Court

[15] This Application was brought under Rule 14.05(3)(d) of the Rules of Civil Procedure. Rule 14.05(3)(d) provides that a proceeding may be commenced by application under this rule for a determination of rights that depend on the interpretation of an instrument. The instrument here is the Easement Agreement.

[16] The City also seeks a declaration. The ability to grant declaratory relief is part of this Court’s inherent jurisdiction. Section 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that this Court may make binding declarations of right, whether or not any consequential relief is or could be claimed.

B. Terms of the Easement Agreement

[17] The Easement Agreement was entered into by the previous owners and the then Town of Markham (now the City of Markham) and approved by the Town of Markham in 2004. Notice of the Easement was registered on title on December 20, 2004 under ss. 37(3) of the Ontario Heritage Act.

[18] Mr. Ross purchased the Property on November 15, 2011. While Mr. Ross’ house is a heritage home in the heritage district, it is bordered by modern suburban homes built up in the 1980’s and 1990’s.

[19] The recitals of the Easement Agreement emphasize the importance of the conservation of buildings of historic or architectural value or interest and the desire of both the Owner and the Town to conserve the “present historical, architectural, contextual, aesthetic, scenic and heritage characteristics and conditions of the Building on the Property as set out in the “Reasons for Identification”.

[20] Before me, Mr. Ross emphasized that much of the Easement Agreement focuses on the Building on the Property. For example, it prohibits any demolition, remodelling or other related acts without the City’s prior approval. It also places upon the owner an obligation to maintain the building in a good state of repair.

[21] Mr. Ross submits that the Easement Agreement does not prohibit alterations to his backyard as there is no heritage or architectural interest in grounds at the rear of his Property which are out of the public realm and which are surrounded by more modern properties.

[22] The Easement Agreement does address issues relating to the grounds around the Building. Under the Part titled “No Act of Waste”, the Agreement provides:

The Owner shall not commit or permit any act of waste on the Property. In respect to the subject lands, the Owner shall not, except with the prior written approval of the Town:

(a) grant any easement or right-of-way which would adversely affect the easement hereby granted;

(b) erect or remove or permit the erection or removal of any building, sign, fence or other structure of any type whatsoever;

(c) allow the dumping of soil, rubbish, ashes, garbage, waste or other unsightly, hazardous or offensive materials of any type or description;

(d) except for the maintenance of existing improvements, allow any changes in the general appearance or topography of the lands, including and without limiting the generality of the foregoing, the construction of drainage ditches, transmission towers and lines, and other similar undertakings as well as the excavation, dredging or removal of loam, gravel, soil, rock, sand or other materials;

(e) allow the planting of trees, shrubs or other vegetation which would have the effect of (i) reducing the aesthetic value of the Building or the Property or (ii) causing any damage to the Building;

(f) allow any activities, actions or uses detrimental or adverse to water conservation, erosion control and soil conservation; and

(g) allow the removal, destruction or cutting of trees, shrubs or vegetation except as may be necessary for (i) the prevention or treatment of disease or (ii) other good husbandry practices.

[23] I interpret the “No Act of Waste” provisions to prohibit grading and excavation of the Property without prior City approval.

[24] The Easement Agreement, at s. 2.9, also addresses an Owner’s breach of its obligations. This will be discussed further below.

[25] Mr. Ross states that when s. 2.8 is read in the context of the rest of the Agreement, it applies only to those actions or activities that might negatively affect or detract from the architectural value of the home.

[26] I do not see it this way. When I look at the Easement Agreement as a whole, and give the words in it their ordinary meaning, I conclude that it was the intent of the parties to the Easement Agreement to ensure that there would be no changes to the Property – i.e. grounds and the Building – without the City’s approval. While there are aspects of the Easement Agreement that are directed to conservation of the Building, read as a whole the parties intended by the Easement Agreement to cede a large measure of control over the Property, including the grounds, to the City.

[27] My interpretation that the grounds are included in the Easement Agreement is consistent with this Court’s analysis in Roman Catholic Episcopal Corp. for the Diocese of Peterborough v. Cobourg (Town), 1998 CanLII 14848 (ON SC), 40 O.R. (3d) 187. There, a Heritage Easement Agreement was entered in to between the Town of Cobourg and the Diocese under s. 37 of the Ontario Heritage Act. The dominant purpose of the agreement was to protect the Church. The issue then became whether the Rectory could be demolished. It was argued that s. 37(1) of the Ontario Heritage Act limited easement agreements to buildings that have historical or architectural significance. The Court found that the agreement applied to the grounds upon which the building stood and other adjacent buildings.

[28] Mr. Ross argues there is no historical or architectural significance in his “heritage dirt” or his “heritage grass”. That may be true. However, the Easement Agreement requires him to seek approval from the City prior to taking steps such as removing dirt or trees, grading, and excavating.

[29] I conclude that the Easement Agreement applies to the whole property including the building and the grounds.

C. Does the City Have Sole Discretion?

[30] The City states that under the Easement Agreement, the City has sole discretion to determine whether Mr. Ross has fulfilled or neglected his obligations under the Agreement. Section 2.9 provides:

If the Town, in its sole discretion, is of the opinion that the Owner has neglected or refused to perform any of their obligations set out in this Agreement, the Town may, in addition to any of its other legal or equitable remedies, serve on the Owner a notice setting out particulars of the breach and of the Town’s estimated maximum costs of remedying the breach. The Owner shall have thirty (30) days from receipt of such notice to remedy the breach or make arrangements satisfactory to the Town for remedying the breach. If within those thirty (30) days the Owner has not remedied the breach or made arrangements satisfactory to the Town for remedying the breach, or if the Owner does not carry out the said arrangements within a reasonable period of time, of which the Town shall be the sole and final judge, the Town may enter upon the Property and may carry out the Owner's obligations and the Owner shall reimburse the Town for all expenses incurred thereby. Such expenses incurred by the Town shall, until paid to it by the Owner, be a debt owed by the Town and recoverable by the Town by action in a court of law. [Emphasis added.]

[31] Section 2.9 of the Easement Agreement grants the City sole discretion. In law, when a decision-making body, like the City, has discretion about something, it means it is up to that body to decide when to act or not to act and what is to be done. The Agreement uses “sole discretion” which signals that it is only the City who can decide when the Agreement is breached.

[32] The City’s discretion is bounded by the terms of the Easement Agreement, but it provides, using the words “sole” and “is of the opinion”, that it is only the City who decides whether there has been a breach. Because of the conflict between the City and Mr. Ross, it has asked the Court to so declare and to find that there has been a breach and to assist with a remedy.

[33] The City’s power to decide about the breach and the sufficiency of any remedy is further underscored by other language in s. 2.9 where the Easement Agreement provides:

If within those thirty (30) days the Owner has not remedied the breach or made arrangements satisfactory to the Town for remedying the breach, or if the Owner does not carry out the said arrangements within a reasonable period of time, of which the Town shall be the sole and final judge … [Emphasis added.]

[34] This provision of the Easement Agreement demonstrates the intentions of the parties to the agreement that it would be up to the City to decide whether the remedy was satisfactory. Reading s. 2.9 alone and in the context of the Easement Agreement as a whole, I conclude that the City does have the sole discretion to decide whether the Easement Agreement has been breached and to decide whether remedial actions taken are sufficient. The City must act in accordance with s. 2.9 to provide notice of the breach and provide an opportunity to remedy any breach. The Easement Agreement contemplates that the City has access to legal and equitable remedies in remedying the breach.

D. Did Mr. Ross Breach the Terms of the Easement Agreement?

[35] Mr. Ross states that he was entitled to make changes to his backyard and that he did not breach the Easement Agreement. The City’s position is that it was the actions that Mr. Ross took to his backyard in cutting down trees and installing the rink that breached the Easement Agreement because he did not seek prior approval. There are no allegations with respect to the Building, and no evidence that the work done by Mr. Ross damaged the Building.

[36] It is important to understand the chronology for a full appreciation of what has occurred on Mr. Ross’ property and the City’s response.

[37] The City learned in March 2021 that Mr. Ross was cutting down trees on his Property. On May 21, 2021, the City issued a Notice to Comply advising him that he was violating the Easement and directing him to obtain approvals.

[38] On May 25, 2021, the City inspected the Property and found that the work was continuing, despite the Notice to Comply. On November 21, 2021, the City issued a Notice to Cease and Desist and served it upon Mr. Ross.

[39] Mr. Ross is a single father. He wanted to build the sports pad for his kids to play backyard hockey. He cites two motivating factors: there had been many shutdowns as result of COVID-19 public health measures, and he wanted to have a safe environment for him and his children to play sports with their friends. This was not just because of COVID-19. Mr. Ross’ son had been on a hockey team where the assistant coach was charged with multiple counts of sexual abuse and sexual interference of a minor. He felt it was safer for his children to be playing and practicing in their own backyard.

[40] The work on the Property continued after the notices were served. Charges were laid under the Provincial Offences Act, R.S.O. 1990, c. P.33. Convictions were entered for violations including of the City’s Tree Preservation By-law, the Building Code Act, 1992, S.O. 1992, c. 23 the Fire Code and Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4.

[41] Mr. Ross concedes that he removed trees. Some were removed because he has an allergy to a particular type of tree. He also states that in August 2021, there was a storm that damaged trees, thereby creating a hazard. He has since replanted 130 trees.

[42] He acknowledges that there was grading, installation of the concrete pad, icing of the rink, removal of trees, and installation of the shipping container cabana.

[43] He is clearly proud of the work done in the backyard, and states that he has gone to great lengths to ensure that his backyard is aesthetically pleasing and fits with the City of Markham’s property standards.

[44] He says that the City is motivated by complaints from the neighbours and that they have applied pressure on the local ward councillor. He testified in his affidavit that his neighbours have been unreceptive to him and, at least one, have made what appears to be a racist remark.

[45] After the City attended at the house, Mr. Ross attempted to get the City’s approval for the sports pad and the cabana. He applied for a permit. City staff in a staff report recommended that counsel approve the Heritage Permit application given that construction had taken place, that enforcement of the tree removal was then underway, and that it was not visible from the public realm. The Heritage Committee, the Development Services Committee and City Council rejected the permit application.

[46] Mr. Ross appealed the City’s denial of permission to the Ontario Land Tribunal. The appeal relates only to the refusal to grant permission. The City stated that the appeal has not yet been scheduled and that the process requires the Tribunal to hold a hearing and then make a report to City Council. City Council must consider the report and then make a final decision.

[47] Mr. Ross complains that, in total, City staff have attended at his house over 60 times for inspections and other reasons, and that he has been harassed by the City, driven by political pressure from neighbours. It was an election year and Mr. Ross states that the local councillor for Unionville told him “Martin I’m a politician and [his neighbours’] votes count as eight and your vote counts as one.”

[48] I appreciate these concerns. However, my task is to examine the Easement Agreement and the rights of the parties determined therein. The disputes with the neighbours and the City, while providing context for the present dispute, do not factor into my consideration of the rights of the parties under the Easement Agreement.

[49] On that question, the Easement Agreement requires City approvals. This record demonstrates that Mr. Ross did not attempt to seek City approval until after he began the work of cutting down trees and grading. This breached the Easement Agreement. When the City was opposing his after the fact application to build the sports pad, he continued with its installation. He refused to comply with the City’s direction, and he finished his project over the City’s objection. There is no question that Mr. Ross has breached the Easement Agreement.

E. Can the City enter the Property to Conduct Remedial Work?

[50] I have already discussed the broad powers that the Easement Agreement grants to the City to decide in its sole discretion whether this is a breach and to be the judge of whether any remedial work is sufficient. Section 2.9 of the Easement Agreement also grants to the City the power to enter to the Property to perform remedial work if the owner has not done so in a manner that satisfies the City.

[51] Section 2.9 provides in part that:

[T]he Town may enter upon the Property and may carry out the Owner’s obligations and the Owner shall reimburse the Town for all expenses incurred thereby. Such expenses incurred by the Town shall, until paid to it by the Owner, be a debt owed by the Town and recoverable by the Town by action in a court of law.

[52] The evidence suggests that the approximate cost of doing the remedial work necessary (which will include the removal of the concrete sports pad) is $60-70,000. Mr. Ross suggests that this could be financially ruinous to him. Unfortunately, this is a direct consequence of the decisions made by Mr. Ross to ignore both the clear terms of the Easement Agreement and the demands of the City to stop the work.

[53] Accordingly, I find that pursuant to the Easement Agreement, the City may enter upon the Property to conduct remedial work.

F. Is the Agreement Unconscionable?

[54] Mr. Ross states that all he wanted was to make a place for his kids to play. That may be. But by purchasing a property with a registered Easement Agreement under the Heritage Act, it was not for him to decide on his own to grade his backyard and pour concrete.

[55] Mr. Ross submits that an interpretation of the Easement Agreement that permits the City to dictate how the land is used and to enter the Property is unconscionable. He asserts that the Court should apply the common law principles of unfairness and unconscionability to the contract. He submits that the language of s. 2.8 that permits the City to enter lands is an extreme remedy. To permit that, in his view, sends a disturbing message to landowners in Ontario that heritage instruments may be used to allow local government to dictate how lands are used.

[56] The Supreme Court of Canada considered unconscionability in Uber Technologies Inc. v. Heller, 2020 SCC 16, 447 D.L.R. (4th) 179. The Court set out the applicable principles for the doctrine. Unconscionability is an equitable doctrine. The purpose of the doctrine is to protect persons who are “vulnerable in the contracting process from loss from loss or improvidence to that party in the bargain that was made” [Emphasis in original.]: see Uber, at para. 60.

[57] For unconscionability to be made out, the party claiming it must establish an inequality of bargaining power and a resulting improvident bargain. Examples of where unconscionability would come into play is where one of the parties has no choice or does not understand the agreement that they are making or one of the parties is in a much stronger bargaining position than the other.

[58] There is no evidence of either in this case. While Mr. Ross was not a party to the Easement Agreement, he is bound by it by the agreement he made when purchasing the Property. Mr. Ross argues that the previous owners were unequal in their bargaining power. There is simply no evidence that the previous owners were vulnerable to the City, or that they were somehow forced to enter the Easement Agreement.

[59] Even if that were true, Mr. Ross bought the Property without any bargain with the City and knowing about the Easement Agreement. He has applied for and received the benefit of a tax advantages because of the Easement Agreement. In my view, he cannot claim unconscionability.

G. Does the Easement Agreement Breach Mr. Ross’ rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms?

[60] Mr. Ross claims the City’s action violates his section 7 and 8 rights under the Canadian Charter of Rights and Freedoms (the “Charter”): the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice and the right to be free from unreasonable search and seizure. Mr. Ross argues that if the Court accepts the City’s interpretation of the Easement Agreement, it will ruin him financially.

[61] Section 7 of the Charter does not protect property rights. The Supreme Court of Canada held in Irwin Toy Ltd. v. Quebec (A.G.), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at p. 1003, that economic rights generally encompassed by the term “property” are not captured in s. 7 of the Charter and that the decision to exclude property rights in s. 7 was intentional. The Court left open whether some economic rights fundamental to human life or survival could fall within the ambit of s. 7.

[62] This is not a case where s. 7 should be used to protect an economic interest. While there may be financial consequences to Mr. Ross, I have no evidence upon which to conclude that the impact will affect any interest protected by s. 7.

[63] Mr. Ross also argues that the actions of the City in the steps taken to enforce the Easement Agreement and the proposed remedial action breach his s. 8 rights. Section 4.1 of the Easement Agreement provides that “[t]he Town or its representatives shall be permitted at all reasonable times to enter upon and inspect the Property and the Building upon prior written notice to the Owner of at least twenty-four (24) hours.”

[64] I have found above that the City has sole discretion to determine whether the remedy of the breach is sufficient and to enter the Property (with proper notice and on the conditions discussed above). Accepting that this could involve a form of seizure of property should the remedial action taken by the City include removal of the cabana structure, the concrete pad and the boards around it, the question arises as to whether Mr. Ross consented to or authorized these actions when he purchased a property which is subject to the Easement Agreement.

[65] I find that Mr. Ross did consent to waive his s. 8 rights. He bought the Property that had a registered instrument on it, which spelled out the rights of the City to enter the Property to remedy the breach. The Easement Agreement entitles the City to take action where there is a breach and where notice is given. I construe Mr. Ross’ purchase of the Property to be his consent to the City’s actions of which he now complains.

[66] This consent is comparable to when an accused person consents or waives his right to a seizure; if informed and freely given, they relinquish their right to be left alone: see R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145. For a waiver of a right to be effective, the person waiving the right must have sufficient information to make a meaningful decision. All of the City’s powers were clearly set out in the Easement Agreement so that Mr. Ross could make a meaningful decision. I find that he did, and he has relinquished his right to be left alone.

[67] I find no breach of either his s. 7 or 8 rights under the Charter.

H. Declaratory Relief

[68] This Court can grant declaratory relief under s. 97 of the Courts of Justice Act. This discretion may be exercised where the Court “has jurisdiction to hear the issue, where the dispute before the court is real and not theoretical, where the party raising the issue has a genuine interest in its resolution, and where the respondent has an interest in opposing the declaration sought” (see: Ewert v. Canada, 2018 SCC 30, at para 81).

[69] This discretion is to be used sparingly and with extreme caution. In Glaspell v. Ontario, 2015 ONSC 3965, Justice Perell noted, at paras. 28 to 30, that the Court should not make an order where the dispute is theoretical, hypothetical or abstract, or will not serve a practical purpose. The declaration should be able to be acted upon.

[70] The dispute between the City and Mr. Ross has crystallized. It is evident to me that Mr. Ross did not accept the City’s interpretation of the Easement Agreement or recognize the discretion it held to determine a breach. This led to dozens of interactions between the City and Mr. Ross to the point where he feels harassed and the City was compelled to seek the Court’s assistance, because when it asked Mr. Ross to stop, he kept going.

[71] In my view, a declaration will serve a practical purpose. It should assist Mr. Ross in understanding the scope of the City’s discretion under the Easement Agreement and its power to both demand remedial action, to enter the Property to remedy the breach if it judges that the remedial actions are unsatisfactory, and for Mr. Ross to bear the costs of the remedial work.

[72] Having interpreted the Easement Agreement as I have, I have determined that Mr. Ross is in breach of it, found that is its neither unconscionable nor a breach of his s. 7 and 8 rights under the Canadian Charter of Rights and Freedoms, and that it is appropriate for me to make a declaration in these circumstances, I declare:

a. The City has the right, pursuant to section 2.9 of the Heritage Easement Agreement registered on title to 233 Main Street, Unionville (the “Property”), on December 20, 2004 as Instrument Number YR579674 (the “Easement Agreement”), to enter upon the Property to carry out the obligations of the Owner under that Agreement; and

b. Mr. Ross has breached the obligations set out in section 2.8 of the Easement Agreement not to: (i) allow any changes in the general appearance or topography of the lands; (ii) allow any activities, actions, or uses detrimental to water conservation, erosion control, and soil conservation; and (iii) allow the removal, destruction, or cutting of trees, shrubs, or vegetation without the prior written approval of the City.

I. Should the Court Grant a Permanent Injunction?

[73] The City seeks a permanent injunction preventing Mr. Ross from carrying out further work on the Property without approval from the City, as required by the Easement Agreement.

[74] Permanent injunctions constitute extraordinary relief and should be used sparingly. In deciding whether to grant one, I must apply the framework set out by the Court of Appeal for Ontario in Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, 444 D.L.R. (4th) 183. There, the Court of Appeal adopted Newfoundland Court of Appeal’s approach to a permanent injunction. In NunatuKavut Community Council Inc. v. Nalcor Energy, 2014 NLCA 46, 358 Nfld. & P.E.I.R. 123, at para. 72, the Court of Appeal of Newfoundland and Labrador summarized the approach and what the Court must consider:

(i) Has the claimant proven that all the elements of a cause of action have been established or threatened? (If not, the claimant's suit should be dismissed);

(ii) Has the claimant established to the satisfaction of the court that the wrong(s) that have been proven are sufficiently likely to occur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? (If not, the injunction claim should be dismissed);

(iii) Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong? (If yes, the claimant should be left to reliance on that alternate remedy);

(iv) If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship) affecting the claimant's prima facie entitlement to an injunction that would justify nevertheless denying that remedy? (If yes, those considerations, if more than one, should be weighed against one another to inform the court's discretion as to whether to deny the injunctive remedy.);

(v) If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms that should be imposed on the claimant as a condition of being granted the injunction?

(vi) In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to effect compliance with its intent?

[75] The answers to each of these questions point to the granting of a permanent injunction.

[76] The City has succeeded in showing that the Easement Agreement grants the City broad discretion and Mr. Ross has breached the Agreement.

[77] Is what transpired likely to reoccur? Yes. Mr. Ross neither heeded the City’s notices nor did the Provincial Offences convictions appear to dissuade him from acting without City approval. Mr. Ross wants to do more work on the Property. He did not respect the City’s process. For these reasons, the City has established that these events are likely to reoccur.

[78] There is no other adequate remedy. The City seeks to protect the heritage quality of the Property and its place within the Heritage District. Damages do not provide a satisfactory alternative.

[79] There are no equitable concerns that weigh against the granting of a permanent injunction. While hardship is such a concern, and Mr. Ross claims it, as I have discussed above, this is because of his own decisions to act without prior approval despite the express terms of the Easement Agreement. I do not believe that this hardship should be dispositive because of his defiance of the Notice to Comply, the Notice to Cease and Desist, verbal warnings, and the Provincial Offences.

[80] The terms of an injunction are to be clearly defined and not be so broad as to impact others. The Easement Agreement defines the manner in which the City must act. Requiring Mr. Ross to seek approval from the City for any work required to be taken on the Property will not impact the City.

[81] I am satisfied that this is an extraordinary case and that the circumstances warrant the granting of an injunction.

IV. Denial of Adjournment Request

[82] At the outset of the hearing, I denied an adjournment request by Mr. Ross who was self-represented. I gave oral reasons for my decision to proceed.

[83] I only summarize here why I proceeded. Mr. Ross had filed responding materials in advance of the hearing of the Application. He was suffering physical and mental stress. His physician opined that Mr. Ross should be given a “6 month recess from the volume of visits and emails that he considers to be harassment. I believe that this 6 month recess will allow him to regain his physical and mental health and be able to come to a reasonable compromise with both the city and his neighbours regarding the contentious issues”.

[84] I was not persuaded by the note which related primarily to complaints from neighbours and actions by the City. It made no reference to this Application. The City’s communications taken to enforce the Easement Agreement and the law cannot be construed as harassment. There was little value in the note. I did not find it compelling.

[85] Mr. Ross demonstrated to me that he was able to fully participate in preparing for the adjournment. He had prepared responding materials and argued the case well for an adjournment. For these reasons, we proceeded with the hearing.

V. The Interim Injunction

[86] At the end of the hearing of this matter, I made an interim order prohibiting the icing of the sports pad and the cutting down of trees on the Property. I applied the RJR-MacDonald Inc. v. Canada, 1994 CanLII 117 (SCC), [1994] 1 SCR 311 test to impose those interim conditions.

[87] The Applicant demonstrated that there was a serious issue to be tried. The Applicant demonstrated that there was a risk of irreparable harm that could not be contemplated by costs. This includes that the Respondent has cut down trees despite the Easement Agreement and notices from the City. The City also established through its case that there was a likelihood of irreparable harm that could not be compensated by costs. This was in the form of disturbance to the community within the neighbourhood and the existence of on-going negative interactions with City officials. The balance of convenience warranted the granting of an interim injunction. I dispensed with the undertaking as to damages.

VI. Orders

[88] Above, I have made findings and conclusions about the questions raised by this Application. As a result, I grant the relief sought in paragraphs 1 (a) to (d) of the Notice of Application namely:

a. This Court declares that the City of Markham has the right, pursuant to section 2.9 of the Heritage Easement Agreement registered on title to 233 Main Street, Unionville (the “Property”), on December 20, 2004 as Instrument Number YR579674 (the “Easement Agreement”), to enter upon the Property to carry out the obligations of the Owner under that Agreement;

b. This Court further declares that Mr. Ross has breached the obligations set out in section 2.8 of the Easement Agreement not to: (i) allow any changes in the general appearance or topography of the lands; (ii) allow any activities, actions or uses detrimental to water conservation, (iii) allow the removal, destruction or cutting of trees, shrubs or vegetation without the prior written approval of the City;

c. This Court orders that Mr. Ross is prohibited from continuing with any work in the rear yard of his Property in breach of the terms of the Easement Agreement and any applicable by-laws of the City; and

d. This Court orders that the Sheriff of the Regional Municipality of York shall assist as required in the enforcement of the City’s rights under paragraph (a), above.

[89] If the parties are not able to resolve costs, the City of Markham may deliver its costs submission of no more than three double-spaced pages within two weeks of the release of these Reasons. Mr. Ross may deliver a responding submission of no more than three double-spaced pages on or before January 4, 2023.

Justice S.E. Fraser

Date: December 6, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

The Corporation of The City of Markham

Applicant

– and –

Martin Ross

Respondent

REASONS FOR DECISION

Justice S.E. Fraser

Released: December 6, 2022