COURT FILE NO.: CV-15-00010738-0000 DATE: 2023/08/14

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Li Ma, Yumei Zhang and Homeland Trading Ltd. Plaintiffs – and – The Corporation of the Township of Wainfleet Defendant

Counsel: Li Ma – self represented, not in attendance Yumei Zhang, self-represented Homeland Trading Ltd., self-represented Christine G. Carter, Counsel for the Defendant

HEARD: June 14, 15, 16, 17, 20, 21, 22 and 23, 2022 and June 19, 20, 21, 22 and 23, 2023

REASONS FOR JUDGMENT

Justice L. Sheard

Overview

[1] Li Ma (Mr. Ma) and Yumei Zhang (“Ms. Zhang”) are husband and wife and the registered owners of a farm property, at 33269 Pettit Rd., Wainfleet, Ontario (the “Property”). Their son, Yi Ma, (“Teddy”), assisted his parents with the Property.

[2] The Property included approximately 20 acres of abandoned farming land and two abandoned orchards, each of about 2.5 acres in size: a pear orchard, and the orchard that is the subject of this litigation, consisting mostly of apple trees, with some pear trees (the “Orchard”). The Property abutted 33165 Bell Road, owned by George Vandenberg.

[3] On August 25, 2014, the Orchard was cut down by the defendant.

[4] Homeland Trading Ltd. (“Homeland”) is an Ontario corporation. Its officers and directors are Ms. Zhang and Teddy. By Order dated March 24, 2022, plaintiffs’ counsel was removed, and Homeland was authorized to proceed without counsel. Teddy was present throughout the trial and assisted his mother and Homeland in presenting the plaintiffs’ claim.

[5] Mr. Ma did not attend the trial. Teddy explained that the trial would be too stressful for his father, then 87 years old. Ms. Zhang, also 87 at the time, attended and testified in June 2022. When the trial resumed in June 2023, Teddy was not accompanied by Ms. Zhang, who, Teddy advised, had been injured in a car accident and unable to attend.

[6] The trial had been scheduled to take 10 days. It took 13. It moved at a slow pace largely because the plaintiffs were self-represented and inexperienced, and required the assistance of an interpreter.

[7] After eight days of trial in June 2022, the trial was adjourned due to the court’s schedule. It resumed on June 19, 2023.

The Claim

[8] The plaintiffs’ action against the Township of Wainfleet (the “Township”) relates to Bylaw No. 028-2013, passed by the Township on June 11, 2013, and approved by the Minister of Agriculture and Food on July 16, 2013, (the “Bylaw”).

[9] In their Fresh as Amended Statement of Claim (the “Claim”), the plaintiffs seek:

(a) general damages of $1,500,000 for negligence, misfeasance in public office, negligent assumption of jurisdiction, trespass and nuisance;

(b) punitive and exemplary damages of $1,000,000 for “committing the said torts forcibly, maliciously and without legal right or colour of right”;

(c) a declaration that Bylaw 028-2013 is void i) as it was passed in bad faith, not in the public interest and improperly targeted the plaintiffs; and ii) is vague, uncertain, overreaching and ultra vires the Act.

(d) a declaration that the natural justice rights of the plaintiffs were violated and, as a result, the order to destroy noxious weeds dated April 17, 2014 (the “Order”), is void;

(e) a declaration that the Order was void and of no force and effect at any material time;

(f) a declaration that the Orchard was improperly and/or unlawfully destroyed by the defendant or its agents;

(g) an order directing the defendant to reimburse the plaintiffs the sum of $12,800 on account of the monies paid by the plaintiffs to the defendant to remove the Orchard; and

(h) prejudgment interest and costs.

Dismissal of Homeland’s Claim

[10] I will first deal with the claim advanced by Homeland.

[11] Teddy’s income as an IT consultant and his related expenses were recorded on the “books” of Homeland; Homeland did not produce financial statements. Any income earned from the Property and related expenses were also put through Homeland. While some of those expenses may have been related to the Orchard, at no time was any income generated from the Orchard.

[12] Homeland’s entitlement to pursue a claim against the Township appears to be based on Homeland’s purported agreement with Mr. Ma and Ms. Zhang respecting the Property. However, at trial, Homeland failed to produce any written agreement or satisfactory evidence of the arrangements it may have had with the owners of the Property prior to 2015, by which date, the Orchard had already been cut down. As a result, Homeland has failed to establish any ownership or other interest in the Orchard, that could give it legal standing to advance a claim. On that basis alone, Homeland’s claim fails.

[13] In addition, Homeland did not advance a claim for lost income or any other pecuniary loss in the Claim. On that basis, the Township objected to Homeland pursuing such claims at trial. I accept that objection and agree that having not pleaded any such claim, Homeland was not entitled to advance such claims at trial.

[14] The plaintiffs asserted that as a co-owner of Homeland, Ms. Zhang was entitled to advance a financial loss claim. However, the Claim does not plead such loss and at trial Ms. Zhang led no evidence at all concerning her personal finances.

[15] Furthermore, Homeland failed to produce any financial statements and failed to lead any, or any proper, evidence to establish that it suffered damages, including lost income, by reason of any acts or omissions of the Township. Based on the records compiled by Teddy and presented at trial, after deducting the costs related to Teddy’s work and the more significant costs associated with the farming conducted on the Property, Homeland consistently reported an annual net loss.

[16] For the above reasons, Homeland’s claim is dismissed in its entirety, as is any claim by Ms. Zhang that she suffered a financial loss as a shareholder of Homeland.

Dismissal of the Claims brought by Li Ma and Yumei Zhang

[17] For the reasons set out below, the claims brought by Mr. Ma and Ms. Zhang are also dismissed in their entirety.

Legal Framework

[18] The relief sought by Mr. Ma and Ms. Zhang relates to the Bylaw and the Order. The Claim seeks declarations that the Bylaw and the Order are both void, and relief flowing from those.

[19] The statutory authority for the Bylaw is found in the Weed Control Act, R.S.O. 1990, Chapter W.5 (“the Act”), which provides, in part, as follows:

(i) s.1 defines a “noxious weed” to mean a plant that is deemed to be a noxious weed under s. 10(2), defined as a “local weed”, or as designated under s. 24 (a) of the Act;

(ii) s.3 states that: Every person in possession of land shall destroy all noxious weeds on it; and

(iii) s.10 permits a local municipality that has appointed a municipal weed inspector to designate as a “local weed” any plant that is not a “noxious weed”.

[20] At all material times, the Township had an appointed weed inspector and, as permitted under the Act, the Township passed the Bylaw by which it designated diseased fruits trees as “local weeds”. The effect of the Bylaw was that every person in the Township in possession of a “Diseased Fruit Tree” had a statutory duty to destroy it. If the person in possession failed to do so, under s. 15 of the Act, the Township’s Weed Inspector was entitled to “cause the noxious weeds or weed to be destroyed”, at the expense of the person in possession of the land and/or its owner.

[21] That is what happened in this case.

[22] The Bylaw provided, in part, as follows:

1. Definitions a) “Diseased Fruit Tree” shall be a fruit tree as herein defined, whether dead or alive, which fruit tree as part of a planting of greater than 0.25 ha (0.618 ac) and which planting is within the 375 m (1,230.31 ft) of a fruit growing operation or plant nursery operation, and which planting has been neglected from normal standards of good farming practices, such that it exhibits fruit tree disease or populations of insects which represent a reasonable threat by movement to such commercial fruit growing operation. c) “Fruit Tree” means any food producing tree, vine, shrub or cane including, but not limited to: apple trees…pear trees… d) “Inspector” means a Weed Inspector appointed by the Council of the Township of Wainfleet.

2. That this bylaw shall apply to the whole of the Township of Wainfleet.

3. Diseased Fruit Trees are hereby designated as local weeds pursuant to the provisions of the Weed Control Act, R.S.O., 1990.

4. That this bylaw shall not take effect until it has been approved by the Minister of Agriculture, Food and Rural Affairs.

[23] Section 12 of the Act authorizes a Weed Inspector to enter upon land for the purpose of searching for noxious weeds. If noxious weeds are found, s.13 authorizes the Weed Inspector to order the person in possession of the land to destroy them. The order is to be served by personal service or by mail and must allow the owner at least seven days from the date of service of the order to destroy the noxious weeds.

Appeal

[24] Under s.13(6) of the Act, a person served with an order may, within seven days after service, appeal the order or any requirement contained in it, to the chief inspector, giving reasons for the appeal. S.13(9) permits the chief inspector to attend at the land with the parties, who may adduce evidence. After hearing the appeal, the chief inspector may either confirm or revoke the order or make a new order. The chief inspector’s order may be appealed to the Divisional Court within 30 days of its making.

Application of the Bylaw to the Orchard

[25] In the exercise of its authority under the Bylaw, the Township determined that there were Diseased Fruit Trees in the Orchard. The Order was issued directing Mr. Ma and Ms. Zhang to “bring down and burn” the apple trees in the Orchard within 30 days of service of the Order. The Order was properly served in April 2014. It was not appealed. The plaintiffs did not destroy the Diseased Fruit Trees within 30 days of service on them of the Order or in the almost four months that passed after the Order had been served. On August 25, 2014, the Township had the Diseased Fruit Trees cut down. The plaintiffs were invoiced for that cost and paid the invoice.

Background

[26] Mr. Ma and Ms. Zhang have university degrees. They were born in China in 1935, retired in 1995, and immigrated to Canada in 2001. They bought the Property in May 2011, moving from Toronto.

[27] Ms. Zhang testified that she and Mr. Ma bought the Property to be closer to nature and because they like fruit trees and hoped to make some money selling apples. The Property was attractive to them because of its low price.

[28] Ms. Zhang and Mr. Ma had no experience growing apples. They relied on their experience as youth in China and on their son, Teddy, university-educated but without any farming experience. Ms. Zhang and Teddy both testified that you could learn anything from the internet.

[29] Ms. Zhang testified that when she and her husband bought the Property, the condition of the house, the crop fields, and the orchards was “really bad”, “a wasteland”. The orchards had been abandoned for years and were cramped by weeds. The apples trees had scabs and the leaves were eaten by leaf roller worm. However, based on their research, Ms. Zhang came to believe that even if abandoned “for a few thousand years, or over a thousand years”, an orchard could still be rejuvenated in one to two years. Given the plaintiffs’ and Teddy’s educational background, I find it difficult to accept that any of them truly believed that statement to be true. If so, that alleged belief appears to have been uninformed and naïve.

[30] The evidence shows that the plaintiffs lacked the knowledge, skills, workforce, and/or financial wherewithal to do what was necessary to rehabilitate the Orchard.

[31] The plaintiffs’ neighbour, George Vandenberg, moved into his farm property in February 2011. He had limited experience growing apples but wanted to undertake a commercial apple-growing enterprise and related bakery business on his property. He recognized that to do so would require a significant investment of money and labour to create an commercial apple orchard.

[32] Teddy testified that he understood from Fred Dibi, someone who had owned the Property many years prior to its sale to the plaintiffs, that Mr. Vandenberg had wanted to buy the Property failing which, he would use his connections with the Township to have the Orchard destroyed. Teddy’s evidence on this point is based entirely on hearsay and I place no weight on it. It appears that Teddy’s belief that Mr. Vandenberg had influence with the Township, and that he used that influence to persuade the Township to target the plaintiffs, may have coloured the plaintiffs’ view of all their dealings with the Township.

[33] The evidence presented at trial paints a very different picture. Mr. Vandenberg testified as to his genuine concern that the Orchard was full of disease and insect pests, all of which threatened the very existence of the existing, and future, young apple trees planted by Mr. Vandenberg. The Township responded to the concerns identified by Mr. Vandenberg, one of its constituents, by doing what it could to educate and inform the plaintiffs of steps that needed to be taken to clean up the Orchard and to treat it for diseases and pests, so that it posed no risk to the neighbouring (commercial) orchard.

[34] From the evidence given by Ms. Zhang and Teddy, I find that the plaintiffs either ignored or dismissed as unreliable what they were told by the Township. Ms. Zhang and Teddy appeared to believe that they knew better than the Township’s Weed Inspector how to recognize and treat diseases and pests.

[35] Mr. Dibi’s role in the plaintiffs’ efforts to rejuvenate the Orchard featured prominently in Teddy’s evidence, yet the plaintiffs did not call Mr. Dibi to testify at trial. As a result, little weight can be given to the plaintiffs’ evidence concerning what Mr. Dibi (or his son and sister) said, or did, respecting the Orchard. Also, I draw a negative inference from the plaintiffs’ failure to call Mr. Dibi as a witness at trial: I infer that his evidence would not be helpful to the plaintiffs.

Early Complaints

[36] Mr. Vandenberg testified that he moved to Wainfleet in February 2011 and had no connections or influence with the Township. I accept that evidence, which is corroborated by the evidence presented by the Township. Intending to make a significant investment in his orchard operation by improving the drainage, grading the land, installing irrigation drips, posts and trellises, and purchasing hundreds of young apple trees, Mr. Vandenberg was concerned of the risk to this investment posed by the Orchard. Specifically, Mr. Vandenberg was concerned that there were diseases and pests present in the Orchard that would travel by wind, water, or insect, damaging or killing his young, vulnerable, apple trees.

[37] Teddy testified that he spoke with Mr. Vandenberg in the summer of 2012, who told him that he hoped that Teddy could expedite the restoration of the Orchard, expressing concern that it might infect Mr. Vandenberg’s orchards. Teddy responded that he would act as quickly as possible. According to Mr. Vandenberg, the plaintiffs did little or nothing to restore the Orchard.

[38] Mr. Vandenberg planned to create a commercial apple orchard and a related bakery business on his property, which would employ his wife – a baker– and his son, a budding fruit farmer, and, someday, others. As at the time of trial, it appeared that Mr. Vandenberg had achieved many of these ambitions.

[39] Mr. Vandenberg wrote to the Township on October 4, 2012, describing his apple-farming/bakery plans, and his concern over the risks posed by the Orchard. Mr. Vandenberg said that he contacted the Ontario Ministry of Agriculture, Food, and Rural Affairs (“OMAFRA”) and learned that other municipalities (St. Catharines and Niagara-on-the-Lake) had bylaws designating abandoned orchards as noxious weeds under the “weeds act”, which required their owners to clean them up. He urged the Township to consider enacting a similar bylaw.

Meeting of November 26, 2012

[40] In response to Mr. Vandenberg’s letter, a meeting was arranged with the Township’s (then) Mayor, April Jeffs, Mr. Vandenberg, and Teddy. The three met on Mr. Vandenberg’s property on November 26, 2012.

[41] According to Teddy, he did not know that Ms. Jeffs was the mayor. At this meeting, Mr. Vandenberg expressed concern that his apples would be infected by diseases emanating from the Orchard. Teddy testified that he told Ms. Jeffs that they intended to restore the Orchard and run it as a business. According to Teddy, Mr. Vandenberg became upset, demanding that he provide a plan for rejuvenating the Orchard. At that point, Teddy also became upset, asking why he should give them his plan, as it was his property.

[42] Teddy also testified that at this meeting he told Mr. Vandenberg that if he thought the Orchard had diseases, Mr. Vandenberg could make a complaint under the Plant Diseases Act – something he had heard about from Mr. Dibi. There is no evidence that the Plant Diseases Act has any application to the facts here, but Teddy’s evidence does suggest that he had some understanding that diseased plants could be subject to government regulation.

[43] Later that day, Mr. Vandenberg followed up with Ms. Jeffs by email. He thanked her for her time and expressed his view that he did not “think Ted would get anything but that remains to be seen.” Ms. Jeffs replied to this email on December 5, 2012. In it, she agreed that it looked “like Ted is not in a big hurry to rectify the situation… I am going to forward your email to the rest of council and then mention it at the next Council meeting which is next Tuesday… We will see if we can gain some consensus”.

[44] On December 5, 2012, Ms. Jeffs circulated Mr. Vandenberg’s November 26, 2012 email to the Township’s councillors, advising that she would bring this issue forward at the next Council meeting.

[45] Ms. Jeffs emailed Mr. Vandenberg again on December 6, 2012. She told him that before councillor Ted Hessels would entertain a bylaw, he wanted to connect with Mr. Vandenberg and Teddy to satisfy himself that no resolution was possible.

[46] On May 7, 2013, Mr. Vandenberg followed up with Ms. Jeffs by email, asking if “we can still initiate this new bylaw”. He reported that Teddy had taken up old, uprooted, trees but did not prune the Orchard in February and that, therefore, most of the trees had not been sprayed, putting Mr. Vandenberg’s trees at risk. Mr. Vandenberg also reported that there were old trees in the Orchard, within 30 metres of Mr. Vandenberg’s property line. He asserted that, as per Ontario sprayer guidelines, Teddy should not be spraying these trees, which Mr. Vandenberg wanted removed ASAP. According to Mr. Vandenberg, Teddy had spent all his time on the pear trees in another location.

[47] The communications between the Township and Mr. Vandenberg appear to have fueled the plaintiffs’ allegations of misfeasance and other torts: they testified that the Township appeared to be working behind the scenes with Mr. Vandenberg to have the Orchard destroyed, without disclosure to plaintiffs. For example, in their evidence, and in the plaintiffs’ cross-examination of the Township’s witnesses, the plaintiffs attempted to show that:

(1) the Township exchanged emails with Mr. Vandenberg, receiving and responding to his complaints, without including the plaintiffs in those communications;

(2) the Township appeared to support and advance Mr. Vandenberg’s agenda to have the Bylaw enacted, without notice to, or, essentially, behind the plaintiffs’ backs; and

(3) the Bylaw was intended to (unfairly and improperly) target only the plaintiffs who, apart from Mr. Vandenberg, were the only other property owners in the Township with a fruit orchard.

[48] I do not share the plaintiffs’ view that the actions of the Township were improper or unfair or, in fact, targeted them. I accept the evidence given by the Township that before enacting and then enforcing the Bylaw, it did all it reasonably could to resolve the legitimate concerns that the poor condition of the Orchard posed a real risk to the neighbouring apple farmer.

[49] In her trial testimony, Meredith Kirkham, the Township’s current Deputy Clerk, provided the Township’s perspective on the events that led to the removal of the Orchard.

[50] Ms. Kirkham testified that in a small township such as Wainfleet, it is not uncommon for councillors and even the mayor to take a hands-on approach to try to address issues raised by constituents. In this case, Mayor Jeffs responded to Mr. Vandenberg’s emailed complaint by meeting with both property owners (or the person she believed to own the Property) to understand and to attempt to resolve the dispute.

[51] As evidenced by the emails exchanged among the plaintiffs, Mr. Vandenberg, and Township from and after November 26, 2012, councillors and staff made many efforts to assist the plaintiffs to understand the legitimate concerns respecting the Orchard and the steps that had to be taken to address those concerns.

[52] The plaintiffs’ own testimony at trial fully supports the allegations made by Mr. Vandenberg that the Orchard was a “wasteland” and was overgrown with weeds and saplings of non-fruit trees, which prevented or limited tractor and/or machine access to the Orchard for the purpose of spraying it, and that the trees themselves were overgrown and producing undersized and scabbed apples, which were left on the Orchard floor to rot, providing a host for the diseases and insects for which chemical sprays were required.

[53] The evidence at trial, including, in particular, the testimony of Ms. Zhang and Teddy, leads me to conclude that, in that in the face of what they were told by the Township and the concerns raised by Mr. Vandenberg, the plaintiffs chose to do little or nothing to rejuvenate the Orchard.

Passage of the Bylaw

[54] At the regular Township Council meeting held on May 14, 2013, under the Agenda heading of “Other Business”, a resolution was passed that the bylaw enforcement staff be directed to prepare a draft bylaw designating abandoned orchards as “noxious weeds” in the Township. The Minutes reflect that Council was advised of correspondence received from a resident regarding an abandoned orchard and asking that abandoned orchards be designated noxious weeds and thereby subject to enforcement measures. The Minutes also note Mayor Jeffs had met with both property owners and was assured in late 2012 by the owner of the Orchard that the situation would be remedied, and that the abutting property owner submitted a second request indicating that the abandoned orchard was still in place.

[55] As set out in the Council Agenda for the Regular Meeting of May 28, 2013, the Bylaw was read for a first and second time on May 28, 2013. Ms. Kirkham testified that regular Council meetings are open to the public and that, in accordance with Council Procedure Bylaw, the agenda package for each meeting is published the Friday before the meeting. She also testified that Notice of the meeting and the Agenda are posted on the Township’s website and communicated through public media. The Agenda for the May 28, 2013 meeting identifies that the Bylaw was on the Agenda. At the regular Township Council meeting held on June 11, 2013, the Bylaw was read for a final time and passed.

[56] I accept the evidence put forth by the Township that proper notice of the Bylaw was given to the public in accordance with the Township’s procedural bylaw.

[57] Pursuant to s.10(3) of the Act, the Bylaw required the approval of the Ministry of Agriculture and Food and Rural Affairs. That approval was given on July 16, 2013.

Vandenberg Complaint under the Bylaw

[58] By email dated July 22, 2013, John Boerema, the Township’s Chief Building Official at the time, advised Mr. Vandenberg that the Bylaw had been passed, attaching a copy. He told Mr. Vandenberg that to “move forward” the Township required a written complaint specifying which trees are causing the problem, what diseases they may have, and how it is affecting his agriculture operation. He also told him that Harold Kelly was the Township’s Weed Inspector and that Caitlin Wood would be taking over soon and would work together on the complaint, when received.

[59] Via email sent later that day, Mr. Vandenberg lodged a complaint. His complaint reiterated his previously expressed concerns identifying also the risk of losing his young apple trees to Fire Blight emanating the Orchard, and the cost to him of spraying for Fire Blight. He also expressed a concern that if his young trees died, and he had to replant, it would set Mr. Vandenberg back three to four years and in the meantime, he would lose the preferential property tax treatment given to farms. Mr. Vandenberg asked that the Bylaw be enforced, and the Orchard removed as soon as possible.

Inspection and Notice of Violation

[60] In evidence and submissions, the plaintiffs allege that there was an unfairness and bias on the part of the Township when it informed Mr. Vandenberg of the Bylaw and invited him to file a written complaint, without first investigating or speaking directly with the plaintiffs.

[61] That allegation is not supported by the evidence.

[62] On July 23, 2013, Cathy Wood and Harold Kelly inspected the Orchard. In her note to file, Ms. Wood indicates that the apple trees in the North East area of the property were diseased with “Fire Blight”.

[63] Following his site inspection, Harold Kelly, the Township’s Weed Inspector, sent a letter dated July 25, 2013, to Mr. Ma and Ms. Zhang via Registered Mail. That letter is entitled: NOTICE OF VIOLATION. It advises the addressees that on July 23, 2013, an inspection of their property had revealed a violation of the “Weed Control Act”. The letter explained that under the Bylaw, a Diseased Fruit Tree was considered a noxious weed, reproducing s. 3 of the Act, that required every person in possession of land to destroy all noxious weeds on it.

[64] The July 25, 2013 letter was sent by “Harold Kelly, Township of Wainfleet Weed Inspector”. It stated that under the Act an Inspector is entitled to give “an ORDER” for the destruction of weeds if the notice is not complied with within the specified timeframe” and that:

The diseased fruit trees on the North East area of the above mentioned property should be treated for “Fire Blight” with Copper Fungicide or the trees should be cut down and disposed of.

A re-inspection of the property will take place on August 15, 2013 to ascertain compliance. If earlier compliance is achieved, call for an inspection.

Should you have any questions or concerns pertaining to this matter, please do not hesitate to contact the undersigned.

[65] The plaintiffs complain that the Township inspected the Orchard without ever telling them that they were coming and entered the Property without any notice to the plaintiffs. In their written closing submissions, the plaintiffs further assert that there was no training provided to the Township’s new Weed Inspector.

[66] The plaintiffs’ complaint about the training or alleged lack of training given to the Township’s Weed Inspector is not supported by the evidence and is irrelevant: it was within the statutory authority of the Township to choose and appoint a weed inspector. More importantly, the evidence shows that, although they were not statutorily or otherwise obliged to do so, before issuing the Order, the Township also obtained an independent opinion respecting the Orchard from a qualified apple expert, Joe Uyenaka.

[67] Teddy testified that on July 29, 2013, he collected the Township’s “Notice of Violation” letter from the post office. He then walked across the street to the Township’s office, intending to tell them that the Orchard did not have Fire Blight. He asked to see Mr. Kelly, but it was Ms. Wood who came out to meet him. She brought with her a map of the subject lands, which they looked at together. Ms. Wood identified the Property and the location of the Orchard on the map. Teddy testified that he was not confused at all that Notice of Violation referred to the Orchard.

[68] In their meeting, Ms. Wood told Teddy that she had written the letter of July 25. She handed him her business card, which identified her as a “Septic Inspector”. According to Teddy, the letter did not enclose a copy of the Bylaw referenced as an enclosure. Teddy agreed, however, that he did not mention that alleged omission to Ms. Wood, nor did he ask her for a copy of the Bylaw.

[69] Teddy asked Ms. Wood whether she knew what Fire Blight was, because it was a serious disease that he had not seen. According to Teddy, Ms. Wood told him she had seen it, but from his discussion with her, Teddy concluded that Ms. Wood knew nothing about these things. Ms. Wood told Teddy that he should treat Fire Blight with a chemical spray and prune the branches and that he could not leave the Orchard as it was. Teddy responded that he was rejuvenating the Orchard: pruning and spraying. According to Teddy, Ms. Wood did not believe him, and asked him for evidence that he had sprayed. He offered to provide her with copies of the invoices of the chemicals he had purchased. She agreed.

[70] On July 31, 2013, referring to the Notice of Violation letter, Teddy sent an email to Ms. Wood in which he said “please kindly find the enclosed part of chemical invoice I purchased earlier this year. All the necessary on going control and restore for the groups of orchards still continue. Please call me if there is anything need to discuss.” (sic)

[71] In cross-examination, Teddy agreed that when he emailed Ms. Wood a copy, he covered over part of the invoice to conceal from Ms. Wood that Teddy was not the purchaser of the chemicals. Teddy admitted that he did not want to disclose that he did not have a license to purchase the chemicals and that he had Mr. Dibi buy them for him. Teddy also admitted that he was not then trained or a licensed to use the purchased chemicals, and asserted that, although he was the person who sprayed the chemicals, he did so under the close supervision of Mr. Dibi.

[72] Again, without hearing from Mr. Dibi, Teddy’s evidence that he properly or adequately sprayed the Orchard for diseases and pests is uncorroborated. When considered with the other evidence, I find Teddy’s evidence on that point to be unreliable.

[73] In cross-examination, Teddy was confronted with the applicable regulations that prohibited Teddy from doing any chemical spraying, even if supervised by Mr. Dibi. Teddy was unaware of the regulations. In addition, based on the expert evidence of Mr. Uyenaka, which I accept, some of the chemicals to be sprayed could only legally be applied by someone who was fully licensed.

[74] Ms. Zhang testified that she did not accept the validity of the Notice of Violation because she had not seen anybody at the Property and was not sure whether they had in fact attended. In addition, she shared Teddy’s view that the Orchard was not diseased and assumed that the Notice of Violation had nothing to do with her. I find that evidence to be lacking in credibility and I do not accept it.

[75] Ms. Zhang testified that she also relied on what she had heard from Teddy who reported that he had spoken with someone at the Township office and had solved the problem.

[76] On August 6, 2013, Ms. Wood emailed Mr. Vandenberg, Mr. Boerema, and Mr. Kelly, advising them that the homeowner (i.e. Teddy, who identified himself to Ms. Wood as the owner), was aware that his apple trees had Fire Blight but that he had sprayed them more than once with appropriate fungicide to help combat this. She also reported that she had indicated to him [Teddy] that pruning, burning the dead limbs, and picking up all the diseased apples would need to be done to ensure the spread of “Fire Blight” does not occur to nearby young trees. She also reported that she would contact OMAFRA to inquire if there were other measures that ought to be taken to ensure spreading does not occur.

[77] Mr. Vandenberg replied almost immediately to Ms. Wood’s email telling her that he did not think Teddy had sprayed the trees because he could not access them with a sprayer and did not have a licence to spray and that he had not seen Teddy spray the apple trees.

[78] Mr. Vandenberg’s comments are consistent with the evidence at trial: the logs produced by Ms. Zhang make no mention of repeated chemical spraying; Teddy deliberately concealed the fact that he did not buy the chemicals; and that Teddy was neither licensed, nor trained, to apply the chemicals

[79] Ms. Wood responded that the homeowner [Teddy] had shown her a copy of the invoice for the fungicide purchased. However, she stated that she would contact OMAFRA to see how one might determine if a tree has been sprayed. With respect to the assertion that Teddy did not have a licence to spray, Ms. Wood advised that that was not something the Township enforced.

[80] On August 1, 2013, Ms. Wood emailed Teddy thanking him for the invoice but advising him that there was more to be done than spraying the trees once: he would have to prune the infected limbs, pick up fallen apples; prune each affected tree; and, that branches cut off should be dried and then burned. She also advised him that the Township was looking into retaining an Orchard Specialist to inspect the diseased apple trees to ensure proper pruning and spraying has been conducted. Teddy responded by email of August 2, 2013, thanking Ms. Wood for her “suggestions”.

[81] The plaintiffs’ lack of knowledge about what chemicals needed to be applied was exposed when, in early August 6, 2013, Ms. Wood was informed by a specialist at OMAFRA that the fungicides that Teddy told Ms. Wood he had used to treat Fire Blight would not be effective, because Fire Blight is a bacterial infection that must be treated with antibiotics.

[82] On August 14, 2013, Ms. Wood replied to Teddy’s email of August 2, 2013. She stated, in part: “Those were not suggestions. The notice of Violation indicates that work towards reducing the spread of fire Blight needs to be done by or before August 15, 2013…”

[83] By email of August 15, 2013, Teddy thanked Ms. Wood for email and said that anyone who wanted to inspect, may call him to arrange a time. According to Teddy, on August 19, 2013, Ms. Wood arranged with him to visit the Orchard. The plaintiffs submit that this is the only Township inspection of which they were aware.

[84] By email of September 24, 2013, Ms. Wood reminded Teddy that, as they discussed, he should have started pruning, trimming, and gathering up fallen apples. She confirmed that she needed to see progress made and would be inspecting the property at the end of the month.

[85] Teddy’s same-day response was to thank Ms. Wood for reminding him and to let her know that (contrary to her direction) the job would start in the middle of October.

Inspection in 2014

[86] On April 4, 2014, Trevor Imhoff, the Township’s Weed Inspector at the time, and Mr. Uyenaka, the apple specialist retained by the Township, performed a site visit of the Orchard.

[87] The plaintiffs complain that this site visit was carried out without their notice or consent. When cross-examined on this issue, Ms. Kirkham responded that neither permission, nor consent, to enter the Property is required pursuant to the provisions of the Bylaw and the Act. I accept that evidence.

[88] Mr. Imhoff created a note to file of the visit and on April 6, 2014, Mr. Uyenaka sent a brief email to John Boerema.

[89] In his trial testimony, Mr. Uyenaka stated that on this site visit he concluded that:

(iv) the Orchard was infected with Nectria, and with black rot canker, fungal diseases, which are major problems in Ontario Orchard is for which one must spray. The rot can spread to apples, which become unsuitable for harvest, and can get into trees and kill them;

(v) there were between 200 and 220 trees in the Orchard – some alive, some dead and some trees were missing;

(vi) Fire Blight canker, a bacteria, not a fungus, was observable. It can kill an entire Orchard;

(vii) leaves with apple Scab lesions on them were observed on the Orchard floor;

(viii) mummified apples were observed on the Orchard floor with Scab damage and codling moth damage;

(ix) chew marks were observed evidencing apple leaf roller on the apples and, likely, apple maggot;

(x) the diseases observed, namely apple Scab, Fire Blight, and black rot, are all spread by wind, water and/or by insects, and could travel to the neighbouring orchard, which would have been affected by the Orchard’s diseases and insects; and

(xi) there was no evidence that “normal farming practices” were followed.

[90] Mr. Uyenaka testified at trial both as a participant expert and as a rule 53 expert. His evidence entirely supports the conclusions reached by the Township’s Weed Inspector that the Orchard contained Diseased Fruit Trees and that the Order was justified.

[91] I accept that the Township owed no duty to the plaintiffs to contact them prior to the site visit. Furthermore, I find no fault on the part of the Township for not engaging with the plaintiffs, with whom they attempted to work for months, without, apparently, anything to show for it.

The Order

[92] On April 17, 2014, Mr. Imhoff signed the Order, directing Mr. Ma and Ms. Zhang to destroy noxious weeds or weed seeds located at their property at 33269 Pettit Rd. The Order directed that they: “Bring down and burn approximately 2.5 acres of diseased Apple Trees (as defined in Bylaw 028-2013) adjacent to 33169 Bell Rd.” The Order allowed them 30 days to comply from service of the Order.

[93] The Order was served by registered mail on April 29, 2014.

[94] In written closing submissions, the plaintiffs assert that the Order was deficient in that it did not contain appeal instructions and was, therefore, not in the prescribed form; incorrectly referred to apple trees adjacent to 33169 Bell Rd. when the correct address was 33165 Bell Rd.; did not provide any particulars of specific violations of the Bylaw; omitted the code number in the order; and directed that the reader to see the back of the Order, which was blank.

[95] I find the plaintiffs’ assertions to be specious.

[96] For example, the plaintiffs’ complaint that the flip side of the Order was blank is without merit. Firstly, the plaintiffs did not put in evidence the copy of the Order they say was served by registered mail: according to Teddy, that document is locked in his previous lawyer’s safe. Even accepting the plaintiffs’ assertion that the copy of the Order that was served by registered mail did not have writing on the back, the plaintiffs could have asked the Township for a two-sided copy. They did not. Moreover, in his testimony, Teddy acknowledged that the Township had provided a second, laminated copy of the Order – with writing on the front and back – which the Township affixed to the plaintiffs’ garage. However, according to Teddy, although they took the Order down from the garage, the plaintiffs did not look at the flip-side of the laminated Order, where the appeal instructions were printed.

[97] With respect to the error in the address of the adjacent property, in his trial testimony, Teddy acknowledged that he knew exactly whose property was the subject of the Order. Therefore, the error in the Order respecting the street address of the adjacent property did not mislead or confuse the plaintiffs, and I find no merit to this complaint.

[98] With respect to the omission of a code number, I do not accept the plaintiffs’ submissions that this prevented them from responding to the Order. The plaintiffs knew full well who to contact: the Order was signed by Mr. Imhoff, a person known to them, whose telephone number was written on the face of the Order.

[99] I also reject the plaintiffs’ assertion that the Order was deficient in that it did not provide particulars of specific violations of the Bylaw. The Order is clear on its face that the apple trees were noxious weeds under the Act, and it identified the trees that were to be brought down and burned.

[100] While the plaintiffs may not have accepted the conclusions reached by the Township, they were fully and clearly informed under the Order.

[101] In her evidence at trial, Ms. Zhang confirmed that the Orchard was not treated for Fire Blight with Copper Fungicide, nor did the plaintiffs cut down or dispose of the trees in the Orchard. And, although she kept a log of work that had been done on the Orchard, Ms. Zhang had no record of what, if any, chemicals were sprayed on the Orchard after the Notice of Violation, apart from fertilizer. According to Ms. Zhang, her log shows that Teddy had sprayed fertilizer on the Orchard on November 16, 2013 - because that was an “important” matter - whereas the chemical sprays were a regular occurrence.

[102] I do not accept that evidence. Having reviewed the entries in the log, I conclude that had there been chemicals sprayed on the Orchard, of which Ms. Zhang was aware, she would likely have recorded that fact. I conclude from the absence of any record, that either no chemicals were sprayed on the Orchard or Ms. Zhang was not aware of what was sprayed. In either case, her log is unreliable and likely incomplete.

[103] Ms. Zhang testified that she was in China when the Order was received, and that Teddy had called her husband, who then told her about it. In his evidence, Teddy admitted that he was not in the least misled or confused that the Property and the Orchard were the subject of the Order. However, he and his mother determined that they could ignore the Order on the basis that it incorrectly showed the adjacent property (that they knew to be the Vandenberg property) as 33169 Bell Rd. instead of 33165 Bell Rd.

[104] Based on the testimony given by Ms. Zhang and by Teddy, I conclude that, in fact, the plaintiffs felt that they could ignore the Notice of Violation and the Order, having concluded that the Township staff was untrained and uninformed, and that the Orchard was not diseased.

[105] As already noted, the Act sets out that an appeal of the Order lay to the chief inspector and, from there, to the Divisional Court. This court is not the proper place to bring that challenge. In addition, even if this court did have jurisdiction to adjudicate that issue, which I find it does not, the plaintiffs have led no reliable or cogent evidence to support a valid challenge to the Order. It is simply not enough for the plaintiffs to repeatedly assert, without evidence, that the Township Weed Inspector was in error, and that the Orchard did not have Fire Blight or fell within the definition of “Diseased Fruit Trees”.

[106] It is undisputed that the plaintiffs knew that by April 17, 2014, the Township’s Weed Inspector, Mr. Uyenaka, and Mr. Vandenberg, the only other apple farmer in the Township, had all concluded that the Orchard had Fire Blight, Scab, codling moths, and leaf roller moths. However, despite that, the plaintiffs did not retain their own Orchard Specialist to inspect the Orchard and to identify any diseases and/or pests present in the Orchard. The plaintiffs did not even send samples of the trees or leaves or apples in the Orchard for testing, which according to the plaintiffs’ own expert, Dr. Kevin Ker, is available to farmers at a reasonable cost by the University of Guelph.

[107] Between when the Order was served and the Orchard was removed by the Township, the plaintiffs had close to four months to either remedy the problems in the Orchard; consult with an expert; and/or send samples for testing. They did none of those; nor did appeal the Order as permitted under the Act.

Enforcement of the Order

[108] On August 18, 2014, Mr. Imhoff and Mr. Boerema attended at the Property and spoke with Teddy. They told Teddy that the Orchard would be destroyed. Teddy responded that the Township was wrong, and the Orchard had no disease. According to Teddy, Mr. Imhoff took a page from his binder and said they had an expert report. Teddy repeated that the Township had made a lot of mistakes and he would not let them enter the Property.

[109] According to Teddy, Mr. Boerema asked Teddy to show him the Order that the plaintiffs had received. Teddy retrieved the laminated copy of the Order and showed it to Mr. Boerema. He asked Teddy why he did not complain or appeal the Order. Teddy responded: to whom should I appeal or complain? “I have explained so many times to you people but have you ever listened to me once?” At that point, Mr. Boerema turned over the laminated copy pointing out that it set out that complaints are to be made to the chief inspector. At Teddy’s request, Mr. Boerema wrote down the phone number to call.

[110] That afternoon, two other men attended at the Property with badges identifying themselves as bylaw officers. They again spoke to Teddy about cutting down the Orchard.

[111] After Mr. Imhoff and Mr. Boerema left, Teddy noted that an appeal or complaint had to be made within seven days of the Order. He concluded that seven days had passed long ago and thought about what could be done. There is no evidence that Teddy, or any plaintiff, ever attempted to contact the chief inspector.

[112] On August 20, 2014, the Township hand-delivered a letter to Mr. Ma and Ms. Zhang reminding them about the Order, which had given them 30 days after service to bring down and burn the 2.5 acres of the diseased apple trees. The letter stated that the Order had not been complied with, nor appealed and, as such, the inspector had authority to enter the Property to have the diseased apple trees removed. The letter advised that a contractor would attend at the Property on Monday, August 25, 2014, to commence the removal and disposal of the diseased trees at the owner’s expense. The letter further stated that the Township hoped for the owner’s cooperation but that the Niagara Regional Police would be on hand to assist, if needed. The letter was from Trevor Imhoff and, on its face, referenced enclosures including copies of the Act, Bylaw and Order.

[113] The letter concluded with: “We encourage you to present a copy of this correspondence and attachments to your lawyer. Should you or your lawyer have any questions or concerns, please feel free to contact myself”.

[114] Ms. Zhang and Teddy each testified that they dismissed the August 20, 2014 letter because it contained errors. For example, it referred to the order dated August 14, 2014 when, in fact, the Order was dated April 17, 2014. In addition, they testified that although the letter referred to enclosures, there were no enclosures.

[115] Notwithstanding their view that the letter of August 20, 2014 was so full of errors it could be ignored, Ms. Zhang and Teddy jointly composed a response to the Township by letter dated August 21, 2014. In it, they said that the August 20, 2014 letter had no attachments and, also, although they had received an Order dated April 17, 2014, they knew nothing of an order dated April 14, 2014. The letter also asserts that because the Form’s communication code box was blank, they could not respond to it. The following paragraphs of the letter offers insight into what the plaintiffs were truly thinking:

In additional, under normal circumstances, an inspector shall show proper identification to the owner during the inspection (basic rule). But none of my family members have been informed there is or will be “inspector” on site to check the “apple tree”. That makes me believe the trees was not being inspected at all.

I am still waiting for, if you want to do any inspection and/or communication. Since my parents give me full authorization of anything regard this property, you can direct contact me (normally Monday/Friday on site).

(Emphasis added.)

[116] The Township responded with its letter dated August 22, 2014, which was revised on the same day and hand-delivered at 2:46 p.m. This letter corrected the date of the Order found in the August 20, 2014, letter and (again) referenced the enclosed copies of the Act, Bylaw, and Order.

[117] Both Teddy and Ms. Zhang testified that by August 22, 2014, it was too late for them to search out a lawyer who might represent them. In cross-examination, Teddy acknowledged that he made no effort to find a lawyer and that at no time did he ask for a deferral of the enforcement of the Order to allow him time to find a lawyer.

[118] On August 25, 2014, representatives of the Township arrived at the Property and proceeded to cut down the Orchard.

[119] The explanations offered by the plaintiffs for their lack of action are not credible. They had ample notice of the Order, having received two copies of it.

[120] I find the plaintiffs’ assertion that they did not read the back of the Order, setting out the appeal process (which is also set out at s.13 of the in the Act), difficult to accept in the face of the other evidence given by Ms. Zhang and Teddy showing how closely they reviewed the other documents and correspondence received from the Township. However, in the end, it matters not.

[121] The Order was properly served in accordance with the Act. The Act governs the appeal route that may be followed by a person who seeks to appeal the Order, or any requirement contained in it. Nowhere in the Act does it permit this court to make its own determination of whether noxious weeds were present.

Method of Destruction

[122] In their written closing submissions, the plaintiffs further complain that when the Township destroyed the Orchard, it only cut down and removed the trees but did not use a bulldozer to get rid of the roots.

[123] This complaint is difficult to understand. Had the plaintiffs wanted the roots removed, they could have done so themselves at their own cost. In any event, based on the evidence at trial, I accept the Township’s submissions that they were not obligated to have gone beyond what they did when removing the Orchard.

[124] The plaintiffs also appear to complain that, when the Township cut down destroyed the Orchard, it did not distinguish between apple trees and pear trees. This complaint is also difficult to understand in the face of Ms. Zhang’s evidence that when she and her husband bought the Property, they contemplated removing the pear trees from the apple orchard. In any event, the plaintiff led no evidence as to the value of the pear trees that were removed, nor is there any counterclaim for that value.

The Expert Evidence

(i) Dr. Kevin Ker

[125] The plaintiffs called Dr. Kevin Ker to opine on the methodology used by Mr. Uyenaka in his report. Dr. Ker was qualified as an expert in plant pathology, entomology, weed science, plant nutrition, pest management, and crop management practices.

[126] Dr. Ker testified that if the plaintiffs had wanted advice about the Orchard, that advice would have been available to them and, also, that a grower can submit a sample to the lab at the University of Guelph to test for pests and/or diseases.

[127] While Dr. Ker appeared to advocate for a grower’s freedom to determine what is best for their orchard, he agreed that an owner cannot cause harm or create an adverse risk to another property owner/farmer.

[128] Unlike Mr. Uyenaka, Dr. Ker never saw the Orchard and was not able to offer an opinion as to whether it was diseased with Fire Blight or with any other disease or pest. He acknowledged that he could not, and did not, disagree with the conclusions reached by Mr. Uyenaka in his report. As a result, Dr. Ker’s evidence did not undermine or challenge the evidence given by Mr. Uyenaka.

(ii) Dr. Harry Cummings

[129] The plaintiffs sought to lead evidence respecting economic loss through Harry Cummings, a PhD, with expertise in agriculture and a background in economics. Dr. Cummings was called to support the economic loss report prepared by another witness the plaintiffs wished to call, Frank Lekivetz, whose expertise was challenged by the Township.

[130] Dr. Cummings’ evidence was admitted provisionally but for reasons given orally, this evidence was ultimately found to be inadmissible when Mr. Lekivetz was not permitted to testify.

(iii) Mr. Uyenaka

[131] Although the Township was not required to do so, in an effort to avoid litigation, it retained Mr. Uyenaka to corroborate the finding of its Weed Inspector. At trial, Mr. Uyenaka was qualified as an expert agronomist with expertise in all aspects of the production, marketing, fertility, and pest management of apples. The plaintiffs did not challenge this expertise.

[132] As already noted, Mr. Uyenaka attended the Orchard with Mr. Imhoff on April 4, 2014. At trial, Mr. Uyenaka provided details of his observations and conclusions, referenced above.

[133] I accept Mr. Uyenaka’s evidence.

Legal Issues

Validity of the By-law

[134] The plaintiffs seek a declaration that Bylaw 028-2013 is void because:

i) it was passed in bad faith, not in the public interest and improperly targeted the plaintiffs; and

ii) it is vague, uncertain, overreaching and ultra vires the Act.

[135] The plaintiffs also submit that if this court finds the Bylaw to be void, then the Order is void and anything done in furtherance of the Order was improper, and should attract damages.

[136] In its Amended Statement of Defence, the Township asserts that the relief sought by the plaintiffs is statute barred pursuant to s. 273 of the Municipal Act, 2001, S.O. 2001, c. 25 because the application was not made within one year after the Bylaw was passed.

[137] Sections 272 and 273 of the Municipal Act, 2001 read, in part, as follows:

272 A by-law passed in good faith under any Act shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law. 2001, c. 25, s. 272.

273 (1) Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality. 2001, c. 25, s. 273 (1).

Definition

(2) In this section,

“by-law” includes an order or resolution. 2001, c. 25, s. 273 (2).

Timing

(5) An application to quash a by-law in whole or in part, subject to section 415, shall be made within one year after the passing of the by-law. 2001, c. 25, s. 273 (5).

[138] Section 415 of the Municipal Act, 2001, refers to debenture bylaws and does not apply to the Bylaw in this case.

[139] The plaintiffs assert that in accordance with the principles laid down by the Supreme Court of Canada in Wiswell v. Metropolitan Corporation of Greater Winnipeg, the limitation period set out at s. 273(1) of the Municipal Act, 2001 cannot be invoked as a bar to the Claim as no limitation applies when, as argued here, a bylaw is void, rather than voidable.

[140] In Wiswell, the Court adopted the statement of law as stated by Rogers, in The Law of Canadian Municipal Corporations, vol. 2, p. 893, as follows:

… if a by-law is within the power of the council and remains unimpeached within the time limited, it is validated by the effluxion of time.

It must be stressed, however, that the curative effect of a failure to quash a by-law is limited to by-laws which are merely voidable and not void. The courts have made a distinction between these two classes of illegal by-laws. A voidable by-law is one that is defective for non-observance or want of compliance with a statutory formality or an irregularity in the proceedings relating to its passing and is therefore liable to be quashed whereas a void by-law is one that is beyond the competence to enact either because of complete lack of power to legislate upon the subject matter or because of a non-compliance with a prerequisite to its passing.

[141] In this case, the plaintiffs bear the onus of proof to establish that the Bylaw is void. I find the plaintiffs have not met that onus: see, Fortin v. Sudbury (City), 2020 ONSC 5300.

[142] Applying the test adopted by the Court in Wiswell, the onus would be on the plaintiffs to establish that the Bylaw was beyond the competence of the Township to enact, either because of lack of power to legislate upon the subject matter or because of a non-compliance with a prerequisite to its passing.

[143] I am satisfied that the Bylaw was clearly within the scope of the Township’s statutory authority given to it under the Act and that there is no basis in fact or in law to quash or hold the Bylaw void.

[144] The plaintiffs’ allegations that the Bylaw should be declared void because the Township failed to consult the public is also not supported by the evidence or the governing statutory authority. The Act did not require the Township to consult with the public and in enacting the Bylaw, the Township’s Councillors were doing what they had been elected to do: see, Fortin, at para. 137.

[145] Public notice had been given. The text of the Bylaw and the fact that it was before Township Council was a matter of public record: information was published and available to the public on the Township’s website and through its social media. The public was free to attend Council meetings and to seek to make submissions on the Bylaw.

[146] Based on the evidence, I am satisfied that the Township followed its own procedures in enacting the Bylaw and that, after it was passed by Council, as required, the Bylaw was submitted for approval to the Minister of Agriculture, Food and Rural Affairs, which approval was given.

[147] The plaintiffs assert that the Bylaw was passed without a proper study which, they assert, is evidence of bad faith. I disagree.

[148] There is nothing in the Act or in the Township’s procedural manual that mandated that a study be undertaken. Moreover, the Bylaw seeks to eliminate diseased fruit trees that pose a risk to orchards that are in commercial operation. Even in the absence of a study, the benefit of such a bylaw is self-evident.

[149] The plaintiffs have also asserted that the Bylaw should be declared void because it improperly targeted the plaintiffs. I conclude otherwise.

[150] The Bylaw did not target the plaintiffs. The Bylaw targets the elimination of Diseased Fruit Trees which, by definition, harbour diseases and pests that pose a risk to nearby fruit growing operations or nurseries, and to thereby address the legitimate interests of the Township: see, Singh v. Corporation of the City of Brampton, 2022 ONSC 4059.

[151] Had the plaintiffs acted in accordance with “normal standards of good farming practices” in the management of the Orchard, the Bylaw would have been of no concern to them. Indeed, had the plaintiffs acted on their stated objective to develop a commercial apple growing operation, they might well have been advocates for the Bylaw, intended to protect all fruit growing or plant nursery operations.

[152] The plaintiffs’ allegation that in responding to the legitimate and verified concerns of a neighbouring property owner, the actions of the Township constituted “negligence, misfeasance in public office, negligent assumption of jurisdiction, trespass and nuisance” is simply not made out on the evidence.

[153] I find that the Township acted in good faith: it gave the plaintiffs ample and repeated notice that they needed to control and/or eliminate the diseases and pests in the Orchard and it attempted to assist and educate the plaintiffs on how to address the valid concerns about the state of the Orchard. The plaintiffs ignored the advice and recommendations offered to them by the Township.

[154] The plaintiffs made much of the apparent flaws in the Township’s paperwork. While there may have been flaws, they were minor, and did not mislead the plaintiffs. There is no doubt that the plaintiffs were absolutely and fully aware of the Township’s view that the Orchard was in violation of the Bylaw; a copy of the Bylaw itself was provided by the Township, and a further copy would have been provided to the plaintiffs upon request. Also, a copy of the Bylaw was available on the Township’s website. The plaintiffs were also fully aware of the Order that had been issued pursuant to the Bylaw and the Act.

[155] There was no trespass by the Township or its agents on the Property: entry was permitted by the Act.

[156] The plaintiffs allege that their natural justice rights were violated. I disagree. In their testimony, Ms. Zhang and Teddy made it clear that their core objection to the actions and involvement of the Township related to the Township’s assertion that the Orchard was diseased at all and, in particular, diseased with Fire Blight, a serious bacterial infection.

[157] After the Order was made, the plaintiffs had an opportunity to appeal the Order to the chief inspector and, from there, to the Divisional Court. That the plaintiffs did not avail themselves of this route of redress does not amount to a denial of their right to be heard or a denial of natural justice. More than a year passed between when the plaintiffs were served with the Notice of Violation, which gave them notice of the passage of the Bylaw, and when the Orchard was taken down. In that 13-month period, the plaintiffs could have taken steps to either rejuvenate the Orchard or to establish that the Orchard was not infected with disease or pests. They did neither.

[158] In my view, the plaintiffs’ inaction prior to the destruction of the Orchard undermines the claims they now advance respecting the validity of the Bylaw.

[159] Based on the evidence put forth, I conclude that the plaintiffs have failed to meet their onus to establish that the Bylaw was illegal; nor did they establish that either the Bylaw or the Order ought to be declared void.

Appeal

[160] Having determined that the Bylaw is valid, I also conclude, as a matter of law, that the plaintiffs’ recourse lay not to this court, but to the chief inspector. On that basis alone, the Claim must be dismissed.

Damages

[161] At paragraphs 1(a) and 1(b) of the Claim, the plaintiffs seek general damages of $1.5 million and punitive and exemplary damages of $1 million. For the reasons given, I find that there has been no negligence, misfeasance in public office, negligent assumption of jurisdiction, trespass or nuisance. The plaintiffs have failed to meet the basic requirements for punitive damages: 1) reprehensible conduct; and, 2) the need to impose damages to punish the defendant: Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419. Those claims are, therefore, dismissed.

[162] In addition, I note that the plaintiffs have not claimed, nor have they established, any other head of damage. In particular, the Township was authorized by law to seek recovery of the costs it incurred to take down the Orchard. I conclude that the plaintiffs have suffered no damages.

Orders Made

[163] The action is dismissed.

Costs

[164] As the successful party, the Township is presumptively entitled to its costs. The parties are encouraged to resolve the issue of costs. If they cannot agree, they may provide written costs submissions not to exceed three pages in length, double-spaced, 12 font, exclusive of any Bill of Costs or Offers to Settle. The written submissions are to comply with the provisions of Rule 4.01 of the Rules of Civil Procedure. The submissions are to be submitted via email to my attention, through the Welland Trial Co-Ordinator.

[165] The Township’s costs submissions are to be served and filed within 14 days of the release of these reasons.

[166] The plaintiffs’ responding submissions are to be served and filed within 7 days of the delivery of the plaintiffs’ costs submissions.

[167] No reply submissions shall be made except with leave.

[168] If no costs submissions are received within 21 days of the date of these reasons, costs will be deemed to be settled and I will make no further order.

Justice Liza Sheard

Released: August 14, 2023