Court File and Parties

COURT FILE NO.: 29067/22 DATE: 2024-03-05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SUSAN MACKENZIE, DERRICK TESSIER, PAUL CHRISTIAN, JULIE CHRISTIAN, DON MUSCATELLO, BRENDA MUSCATELLO, PAUL WANET, RUSS BRINGLESON, FRANK PAOLUCCI, VINCE ORLAND, KELLIE NOVITSKI, JOE SICOLY, LYNN COND, SCOTT NEUREUTHER, MARNEY LAVOIE, STAN PEKALSKI, DREW MCCALUM, RON DELUCO, DAVID PROKOPCHUK, CLAUDIO CAVALIERE, JAMES MANCUSO, JAMIE COOMBS, LISA LANDRY, PETER GRECO, ANDY LEBLANC, RON ELLIOTT, NINO DISANO, WAYNE LEE, STEVE SACHRO, DAVID PROKOPCHUK AND NANCY DREW Applicants – and – SENTHIL CUMARAN VIGNESWARAN Respondent

Counsel: Matthew M. Shoemaker, for the Applicants Self-Represented

HEARD: May 11, 2023, November 30, 2023, and January 8, 2024

RASAIAH J.

Reasons on Application

Overview

[1] The applicants bring an application claiming amongst other relief, an interlocutory injunction restraining the use of PT SEC 28 HAVILLAND AS IN T226624; DISTRICT OF ALGOMA for any purpose other than the construction of a single-family dwelling, the placement of a mobile home on site or for home occupation as permitted in the Sault North Planning Area Zoning By-Law.

[2] The applicants state that:

1. The respondent’s property is in the Sault North Planning Area and is zoned rural under the Sault North Planning Area’s Zoning By-Law.
2. Rural properties are only allowed to be used for single-family dwellings, mobile homes, or home occupations.
3. The respondent has allowed his property to be used as a contractor’s yard since 2021 by Pro-Tech Landscaping Ltd.
4. Contractor’s yards are not permitted to exist on rural-zoned properties.
5. The respondent is selling lumber from the property and operating a sawmill or allowing same to be operated on the property.
6. The respondent is removing and selling soil or permitting same on the property.
7. The respondent’s actions/actions of his contractor Pro-Tech Landscaping Ltd (“Pro-Tech”) are causing drainage issues.
8. That despite warnings from the Sault Ste. Marie North Planning Board (“SSMNPB”), the respondent has not shown any intention of restricting the use of his property by Pro-Tech.
9. That the SSMNPB does not have the resources to enforce the zoning by-law against the respondent and as such the applicants have been required to bring the within application against the respondent.

[3] The main relief requested in the application is framed as requesting “an order that the respondent not personally, or permit any other person or entity, to use or continue to use the property as a contractor’s yard” in breach of the zoning by-law.

[4] The only issue before the court is the matter of the request for an injunction.

[5] I have considered all the material filed (evidence, factums, and authorities) and submissions made by the parties, although I may not refer to each individually.

Discussion/Analysis

Jurisdiction

[6] Section 440 of Ontario’s Municipal Act, 2001, S.O. 2001, c. 25 provides that:

If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.”

[7] “Restrained” means enforcement through an injunction or court order.

[8] The uncontradicted evidence is that the applicants are taxpayers. They state they have exhausted their efforts to achieve results. They further state that the SSMNPB does not have the resources to enforce the zoning by-law against the respondent and as such the applicants have been required to bring an application against the respondent. This evidence of lack of resources is not contradicted on the evidence before me. Further, I note that the SSMNPB is obviously aware of the application based on the recent court filings which include a consultant report prepared at their request to respond to my May 11, 2023 - Order.

[9] Accordingly, there is jurisdiction for the court to consider this application.

The Applicable By-law

[10] Zoning by-laws may be passed by the councils of local municipalities: s. 34 of the Planning Act, R.S.O. 1990, c. P.13. The by-law in question was made under the said section and is for the Sault Ste. Marie North Planning Area in the Territorial District of Algoma, Zoning By-Law 1999-01. A copy is located at Tab 4 of the Applicant’s Record. The by-law is 35 pages in length. It has a table of contents page that precedes the substantive provisions.

[11] This by-law is the applicable by-law to this application and the issues raised.

Issue

[12] The issue for this application is alleged non-compliance with rural zone permitted uses of the respondent’s property, either by him or by Pro-Tech, namely that the respondent is permitting or being willfully blind to activities of a commercial nature being conducted on his property by Pro-Tech.

[13] The applicant submits that the alleged uses they are observing and/or attesting to are not rural permitted uses and are general industrial uses/commercial activity. They claim uses including operation of a sawmill, operation of a lumber yard, and operation of a transportation terminal, and to a minor extent, a motor vehicle body repair shop. They also raise issues of the property being used for a commercial operation of the sale of lumber and/or soil. They also claim violations related to work performed on the property that have caused drainage issues.

[14] The applicants filed various affidavits and exhibits, including photographs and videos for the court’s consideration along with certain correspondence/documents concerning the issues.

Ownership of the Subject Property and Zoning of that Property and the Applicants’ Properties

[15] The PIN for the subject property was filed. The respondent is shown as the registered owner of the property having the legal description PT SEC 28 HAVILLAND as in T226624.

[16] A PIN map was filed. The uncontradicted evidence is that the property outlined in red is the respondent’s property and is shown as part of Section 28. The blue coloured-in property is that of affiant, Paul Christian, one of the applicants.

[17] A map from Soo North Planning Resources was filed. It identifies primarily, the water’s edge properties as a seasonal residential area, namely, the dark-green-coloured properties abutting the waterfront. It is agreed that all the applicants live in this seasonal residentially zoned area.

[18] The legend on this said map identifies respondent’s property as rural according to the yellow colour on the legend. The consultant report filed also confirms the property as being zoned “rural”.

[19] Accordingly, the respondent’s property unquestionably is zoned as “rural” to be distinguished from “rural residential”. The applicants concede that they inadvertently made references to the respondent’s property as being “rural residential” and that is an error. They concede the property is zoned “rural”.

Intended Use of the Respondent’s Property and use of Pro-Tech

[20] The respondent identified that he is building a fishing camp and thereafter intends to build a residence on another part of the property. Pro-Tech was hired by the respondent for some of the work.

[21] The injunction that the applicants are requesting, the respondent submits will interfere significantly with his rights to build the foregoing. He denies all the allegations. The respondent submits that he is operating with and within SSMNPB approvals and/or the bylaw and filed his documents regarding same. He also filed other agency documents who have jurisdiction over some of the issues raised by the applicants.

[22] Mr. Folz, principal of Pro-Tech has deposed/confirmed that he has a non-priority, non-committal contract with the respondent to clear and clean his property in preparation for the building and construction of a fishing camp and a future homestead. He also denies that there is commercial activity occurring on the property other than providing services to the respondent as contracted. He denies the allegations of constant work on the property and outlined the number of days Pro-Tech has worked there, namely 60 days as at the time of preparation of his affidavit. He states he works flexibly on the property while working on other contracts for other customers.

[23] I accept the statements regarding the contractual arrangement and find that is not at all unusual given the timeline of the respondent’s plans, namely a two to five-year project.

[24] As for specifics, Mr. Folz deposes that he is on the respondent’s property when he is available to do the work. He deposes that the use of the equipment and materials in question is related to the projects Pro-Tech was hired for, and that the respondent has acquired materials from other sources as well as parts of the property. Mr. Folz deposes that he has moved material on the property to the proposed building sites. He also mills the lumber, as hired, for the main building structure for a 2023/2024 anticipated build.

[25] Mr. Folz confirms that he has left equipment on the site from time to time on consent of the respondent, confirmed by the documents filed, explaining same as a time saving and cost saving measure to providing the services to the respondent until the contract is completed. I accept this explanation regarding this issue, and this explanation does not defy logic. Mr. Folz confirms that he has his own storage building for his business equipment in Sault Ste. Marie. He further states that as of February of 2023, most of the excavation is complete, and most of the heavy equipment has been moved. This is not contradicted by photographs filed by the applicants in my view.

[26] The Facebook entry recently filed by the applicants shows the respondent’s family enjoying the property, calling the yard/driveway “his new yard/driveway” and presents as expressing looking forward to the future build. It confirms intentions he has expressed to homestead in my respectful view. The fact that he refers to there being no by-laws does not concern me because first, there are in fact limited by-laws. His preference for living in an area with limited by-laws does not translate to a finding that steps he has taken or approved of on his property amount to breach of the zoning by-law.

Breach of By-law Standard

[27] The applicants’ evidence must be sufficient to establish a “clear breach” of the by-law: Syrowik v. Wheeler, 2021 ONCA 819 at para. 19.

[28] I will state generally that I found there to be a theme in the applicants’ materials and submissions of seeking the court to infer meaning to words and actions that are not sufficiently confirmed or supported by the evidence on the record and/or are capable of other logical interpretations/meanings that align with the respondent’s submissions/evidence.

Injunction

[29] The applicants submit that they have established non-permitted uses for purposes of grounding an injunction and that an injunction should issue. They state that their reasonable enjoyment of their seasonal properties has been affected and that there are serious issues to be tried.

[30] Overall, on the record before me, I find that the nature of the interference with their enjoyment is categorized as “constant noise” throughout all hours of the day and late into the night which Mr. Christian states can be heard from the interior of his cottage with all windows closed; a nuisance-based claim.

[31] Mr. Christian also alleges being threatened by Pro-Tech and states that he has filed complaints with the Ontario Provincial Police related to Pro-Tech, related to allegations of threatening. Pro-Tech makes the same claim concerning Mr. Christian. However, no police records were filed. The court is not aware of any charges being laid against anyone. I do accept at the very least that they have been words exchanged given the applicants are not happy with the noise and activity going on, and Mr. Folz believes his equipment was tampered with.

[32] The respondent relies upon Rules 1.04, 1.05, 2.01, 57, 60 and 75 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and s. 101(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, (“Rules”).

[33] In RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199, (“RJR-MacDonald”) the Supreme Court of Canada established the following tripartite test the moving party must meet before the courts should grant an injunction: a. the merits of the case demonstrate that there is a serious question or issued to be tried; b. the moving party would suffer irreparable harm if an injunction was not granted; and c. on a balance of convenience, an injunction should granted.

[34] In Balmain Hotel Group L.P. v 1547648 Ontario Ltd. (Menage), (“Balmain”) Newbould J. stated at paras 58 and 59:

Morden J. dealt with the test whether an injunction should be granted to restrain a nuisance in Walker v. Pioneer Construction Co (1967), Ltd., supra. He stated:

With respect to the first issue, the generally recognized governing principles are those set forth in the judgment of A.L. Smith, L.J., in Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch. 287 at pp. 322-3:

In my opinion, it may be stated as a good working rule that --

(1.) If the injury to the plaintiff's legal rights is small, (2.) And is one which is capable of being estimated in money, (3.) And is one which can be adequately compensated by a small money payment, (4.) And the case is one in which it would be oppressive to the defendant to grant an injunction: --

then damages in substitution for an injunction may be given.

[35] These principles were applied by the Appellate Division in Duchman v. Oakland Dairy Co. Ltd. (1928), 63 O.L.R. 111, [1929] 1 D.L.R. 9, when favourably considering the granting of an injunction. The defendant's operations disturbed the sleep of the plaintiffs in the early morning hours. Middleton, J.A., said at p. 134 O.L.R., pp. 16-7 D.L.R.:

The case of Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch. 287, is, I think, not only a binding authority, but one which we should unhesitatingly follow. It has never been questioned in England or here, and, if regard is paid to this decision, then the plaintiff Duchman is entitled to the injunction claimed. The injury to his legal right is not small, it is not capable of being estimated in money, and money would not be an adequate compensation, particularly money which can be described as a small money payment. A noise which during the early morning hours prevents the plaintiff from sleeping in comfort and peace is not a trivial thing. Under the judgment as it now stands this is recognized, but the plaintiff has no injunction, nor has he the damages which under Lord Cairns' Act he is entitled to in lieu of an injunction. See Arthur v. Grand Trunk Railway Co. (1895), 22 A.R. 89.

May 11, 2023, Hearing

[36] Due to a significant lack of information in the record for the court to consider what presented as diametrically opposed positions as to what was really going on at the respondent’s property, the court ordered the following:

a. The respondent shall make the following inquiries of the Sault Ste. Marie North Planning Board (“Board”) and provide their responses to same to the court as soon as practicable and in no less than 90 days from today’s date:

i. Whether the current use of the property, legally described as PT SEC 28 HAVILLAND as in T226624 (“property”) is in compliance with the zoning by-law and particular designated zoning, and/or any other approvals of the Board regarding use? ii. Whether the building on site is being used in compliance with the zoning for the property and/or any other approvals of the Board? iii. Whether the property is permitted to be used by the contractor to park his equipment and if so, what if any parameters are in place with respect to that permission? iv. Whether the respondent may have a portable sawmill on the property, and if so, what if any parameters exist regarding its operation and/or use? v. Whether the screening of soil is permitted on the property and permitted to be taken offsite? vi. Whether the ditches on site require Board approval and if so, whether it has been obtained? What information, if any, does the Board have or receive, if any, regarding MTO and/or other Ministry involvement regard soil removal?

b. The Sault Ste. Marie North Planning Board, on consent of the respondent, may attend the property for purposes of responding to the above inquiries if they so require or deem same necessary, and are hereby permitted access to the said property for said reasons.

c. The hearing is adjourned to the trial coordinator to set a date for continuation of the hearing, one half day in duration, to be set in consultation with applicant’s counsel and the respondent. If they cannot agree on a continuation date, the issue shall be referred to me by the trial coordinator in writing to address.

[37] The applicant’s filed an updating affidavit of November 27, 2023, with answers to inquiries that were made.

Transportation Terminal Operation Complaint

[38] The applicants point to the erection of what they call a “pole barn” or “other similar type structure” which they state is in contravention of the by-law. The respondent denies same.

[39] The respondent denies that he is operating a transportation terminal from the property. Pro-Tech is working on his property. The respondent states that this is work being undertaken for him and denies any contraventions of the by-law. The respondent advised SSMNPB that the structure was to store equipment and firewood and turn into a fishing camp.

[40] Part 1 of the by-law indicates that the by-law applies to the respondent’s property. In the by-law, this part, a Table of Zones is also set out.

[41] Section 5. (1) of the by-law provides that accessory uses, buildings, and structures are permitted in any zone and sets out stipulations for the structure in general and as it applies to various zones.

[42] Section 16 of the by-law addresses parking requirements. One parking space or one garage or carport for each permitted dwelling unit is permitted.

[43] Section 17 of the by-law provides that a tool shed, scaffold or other building or structure incidental to the construction of a building or structure permitted by the by-law may be maintained until the construction is completed or has been discontinued for sixty days.

[44] Part XI of the by-law addresses “rural zone” which is what the respondent’s property is zoned as. Accessory buildings or structures are permitted, and private fishing camps, logging and lumber camps are permitted [emphasis mine]. The requirements and stipulations are set out in section 52 of the by-law.

[45] Of note, in the by-law, “accessory” when used to describe a use, building or structure, is defined as meaning a use, building or structure that is normally incidental or subordinate to the principal use, building or structure located on the same lot. “Garage” means a building accessory to a single-family dwelling or seasonal dwelling used primarily for the storage of one or more vehicles but does not include a garage used for commercial purposes.

[46] The opinion evidence filed supports that the structure qualifies under the by-law as a permitted use.

[47] In the by-law, “commercial use” means the use of land, buildings, or structures for the purpose of buying and selling commodities or supplying services.The consultant report filed opines that the size and siting of the structure complies; and that a storage building is permitted. The consultant did not observe an indicator that the structure was being used in contravention of the by-law.

[48] The photographs and videos filed do support that the structure is being used as storage. The photographs they rely on show the dump truck under the structure and/or one piece of excavation equipment. The photographs and videos filed by the applicants do not contradict the statements of Mr. Folz that from time to time he moved one of his vehicles back and forth from the property when needed and/or stored his vehicle there on consent from time to time for ease of completing the work he was contracted for and/or as a cost savings measure to the respondent (his terminal is in Sault Ste. Marie.) It is not contradicted that Mr. Folz has his own building for storage of Pro-Tech’s equipment in Sault Ste. Marie.

[49] For these reasons, I am not satisfied that the applicants have established a serious issue to be tried that this property is being used as a transportation terminal and/or the structure is in contravention of the bylaw.

Commercial Activity

General

[50] The applicants state that the respondent is being wilfully blind or permitting illegal use of the property, namely commercial activities.

[51] The respondent wrote to the applicants’ then counsel in May of 2022 to advise that no commercial activity was occurring on the property. He provided an estimate of a 2-to-5-year plan for his project based on the economy and prices. The evidence supports that Pro-Tech was hired for the respondent’s project and work being done on the property is for the respondent as contracted.

[52] I do not agree with Ms. Mackenzie’s characterization that Ms. Gilbert, then rural land planner for SSMNPB, was of the view that the SSMNPB considered that the activity that she observed going on at the respondent’s property constituted commercial activity. In my view, that interpretation is not sufficiently grounded by the materials filed. In her email dated May 3, 2022, Ms. Gilbert refers to a site visit to the respondent’s property. She states she found “evidence of equipment and materials being stored on site”. This simple observation does not translate to an interpretation that she viewed “commercial activity” or operation of a contractor’s yard. After writing a letter to the owner, Ms. Gilbert advised that she received information from the respondent that the equipment was being used for a personal landscaping project and the company doing the work had a storage yard in Sault Ste. Marie for their business.

[53] In an email sent to Paul Christian dated May 10, 2022, Ms. Gilbert, advised that any issues with the driveway were not within their jurisdiction to regulate and refers him to other authorities. Of note, is that Mr. Christian is suggesting that the set up looks like a commercial set up or contractor’s yard. In my view, it equally reflects a building/clearing site.

[54] Overall, in my view, these aforesaid emails are simply an exchange of information and do not constitute findings or evidence of findings by the SSMNPB of non-compliance with the by-law.

[55] Further, I noted that the minutes of the June 8, 2022, SSMNPB meeting include a report of planners that reports only seeing “some activities from the roadway over the past few years”. It is clear that the information of “other activity” is also coming from the applicants and being reported to the SSMNPB. It was further suggested by planning that the respondent may not be aware of Pro-Techs activities, meaning the extent and encouraged constituents to continue to seek out information from him. The planners indicate that they are not able to confirm anything without attending on the property itself via proper by-law enforcement action, and the planner suggested that to do otherwise would constitute trespass.

[56] The applicants in May of 2022 instructed their counsel to write to the respondent, suggesting concerns over use of the property and “very little building activity” on the site. The counsel expressed the applicants’ belief that the property was being used as a contractor’s yard. The letter suggests that the respondent’s plans to build are a guise to using the property for commercial purposes. The respondent’s response to the applicants’ counsel presents as having no knowledge of any commercial operations on the property and asked for evidence so that he can deal with it. He explains that the contractor is maintaining the logging trails, and preparing certain partially cleared areas for future build for which no permits are required. He advised that he is in consultation with SSMNPB and following their direction. He thereafter took steps. He installed cameras to see if anyone was going in and out without his consent.

[57] I was not concerned with there being “little building activity” at times as suggested by the applicants based on the plan for the property indicated by the applicant, namely a 2-to-5-year plan and that the first stages involved clearing, a driveway and milling of lumber for future use/building.

Storage of Vehicles:

[58] There is nothing in the by-law that prohibits the parking of vehicles on the lot. Further, consistently, the evidence produced shows that there is only one vehicle that is actually parked on the property and/or one piece of equipment. The other photographs and videos present vehicles as coming and going from the property and work being done on the property in what appears to be daylight hours.

Sawmill Operation Complaint

[59] The applicants state that the property was cleared roughly in late 2020 or early 2021 and since has then used as a sawmill by permission or by wilfully blindness to its use as same.

[60] The respondent denies that he is selling lumber, or operating a sawmill or allowing same by Pro-Tech. He is clearing the property to build on the property. He is keeping some of the lumber for building on the property. He is moving the lumber to other parts of the property. He has also brought in lumber to mill for use for his project. The respondent states that he is preparing materials and the land for the structures he intends to build. He is using a portable sawmill to cut logs he has acquired for the build, namely construction of the fishing camp and residence. This explanation is not untenable and aligns with the two to five-year plan.

[61] Further, there is nothing in the by-law that prohibits a portable sawmill being used on the property or lumber being stored on the property.

[62] The consultant report filed opines that the portable sawmill may be considered a structure incidental to the construction of a building and may be maintained until the construction is completed or has been discontinued for sixty days. The consultant report filed opines that the storage of cut trees is not considered a use of land.

[63] While the applicants suggest the sawmill should be removed, even if that was so (noting the bylaw on logging), I fail to see how storing a portable sawmill, not being used is a fact that supports the injunction they are seeking.

Lumber

[64] The applicants suggest that the act of trading some lumber for services with Pro-Tech amounts to commercial activity occurring on the respondent’s property. True or not, meaning the trade is going on, it remains the same circumstances in my view that Pro-Tech was hired to do work to clear the property, and as part of payment if it has been agreed that Pro-Tech accepts some of the product that they are clearing for the respondent this does not translate to Pro-Tech running a commercial operation on the respondent’s property. They are doing a job on the respondent’s property. They have their own business office and location in Sault Ste. Marie. They work on other properties which is evident from some of the evidence filed by the applicants. In this case, the situation equally presents as that they are performing a service for a fee as agreed between them and the respondent.

[65] Further, when you clear land, in my view, it is not unreasonable or uncommon to expect that some of the materials will be removed from a property as part of a clearing process/contract. The same can be said of lumber milled for use on other planned areas of the site. In this case, the respondent is having his property cleared and some materials milled, kept and moved to other areas on the site for future use.

[66] Mr. Belanger, a Provincial Officer with the Ministry of the Environment, Conservation and Parks advises that all milling for the construction project is exempt.

[67] The fact that Pro-Tech is using the same equipment at other jobs again does not negate that they are conducting contracted work for the respondent on the respondent’s property. It is to be expected and makes sense to me that they would be using their equipment at the respondent’s property to do a job that they have been hired to do for the respondent and if same is needed on another job, that they would take that piece of equipment there.

[68] The Facebook entry filed is insufficient to establish that Pro-tech is running a lumber sale operation.

[69] The fact that Pro-Tech is advising on Facebook that they have lumber does not assist the applicants on this application in my respectful view. First, they are asking this court to make assumptions on circumstantial evidence that does not attract a finding that there is no other explanation. For example, there is no evidence establishing what lumber Pro-Tech is referring to and if it is even the same lumber that is or was being removed from the respondent’s property. Next, what Pro-Tech does with lumber that it removes from the property after doing a legitimate private job of clearing for the respondent does not amount to a zoning by-law enforcement issue that would fall on the respondent on this evidence.

Topsoil Operation Complaint

[70] In her email dated May 3, 2023, Ms. Gilbert notes receiving another complaint, again as to a “possible” commercial use occurring regarding “topsoil removal”. The property owner advised the SSMNP planner that permission had been granted to permit the contractor to clear some land to build a residential structure for his own use.

[71] The Ministry of Northern Development was asked to investigate. No response was received.

[72] The applicants suggest that the act of trading soil for services with Pro-Tech amounts to commercial activity occurring on the property. As with removal of lumber, true or not, meaning if this trade is going on, it remains the same circumstances that Pro-Tech was hired to do work to clear the property, and if as part of payment it has been agreed that Pro-Tech accepts some of the product that they are clearing for the respondent, this does not translate to Pro-Tech running a commercial operation on the respondent’s property in my view. They have their own business office and location in Sault Ste. Marie. They are performing a service for a fee as agreed on the respondent’s property.

[73] There are no findings in the said email of illegal use by SSMNPB. The removal of topsoil is not with the jurisdiction of the SSMNPB to make it an enforcement issue subject to the by-law and more importantly, removal is consistent with clearing of a property, building, and putting in a driveway.

[74] Further, there is no evidence of a soil stripper on the property.

[75] Further, there is nothing in the by-law that prohibits the contents of the property from being removed from the property in the manner it is being removed/cleared from a zoning perspective. The SSMNPB does not have the authority to regulate the dumping or place of fill, removal of topsoil or the alteration of the grade of land under the by-law. Mr. Belanger opines that the by-law does not regulate storage, transportation, and final placement of excess soil.

[76] What Pro-Tech does with any soil after it has been permitted to be removed for the purposes of clearing is therefore not a zoning by-law enforcement issue in this case.

[77] Accordingly, I am not satisfied on the record before me that there is a serious issue to be tried.

Other Comments

[78] The applicants seek to rely on alleged statements of Mr. Folz that he was going to run a shop there and was building a driveway and installing a culvert for that purpose. There is no such shop there.

[79] The fact that Pro-Tech spent 48 hours in one week on the property collecting and taking away lumber does not negate that they are doing privately contracted work for the respondent on the respondent’s property based on the arrangement that the respondent has with Pro-Tech. This objectively aligns to the act of clearing the property.

[80] The Facebook picture of the respondent and his family enjoying the property does not reflect that the property is being cleared for commercial purposes.

[81] Accordingly, there is no serious issue to be tried on the record before me that commercial activities are occurring as alleged.

Noise Complaint

[82] The applicant submits that in the recent decision of JJ’s Hospitality v. Kal Tire, 2020 ONSC 6198, Varpio J. agreed with Justice Middleton in deciding an injunction was the appropriate remedy; agreed the second prong of the traditional test was met; and added emphasis to Justice Middleton’s passage that “a noise which during the early morning hours prevent someone from sleeping in comfort and peace is not a trivial thing”.

[83] The foregoing may be so, but in this case, there are several issues that distinguish this case.

[84] There is no expert report filed regarding the noise complained of in this case.

[85] The videos filed by the applicants do not help resolve this issue. They are “snippets” of time recorded which appear to depict normal operation of heavy equipment that one would expect during its operation in a clearing/building project. It appears that some of the videos are being taken from a relatively close distance.

[86] Mr. Folz further deposes that he contacted the O.P.P. and was advised that there was no noise violation by-law pertaining to noise level and/or hours. No such by-law has been filed, if one exists, on this application. This does not preclude a claim of nuisance but there is no noise by-law.

[87] Further, Mr. Folz deposes that he has never worked into the wee hours of the night or start to a morning as alleged. The videos and photographs are daytime hours or early evening they seem.

[88] Overall, it appears however that noise being made is recognized, namely Mr. Folz states that the construction of the berms was undertaken to alleviate noise as a courtesy to the neighbours. This recognition however is not one that agrees or confirms that excessive noise was being produced by Pro-Tech’s activities outside of the normal limits or hours one would expect related to the services they were contracted to provide and/or importantly that it was occurring into the wee hours of the night or start to the morning.

[89] As a side note, Part XI of the by-law addresses “rural zone” which is what the respondent’s property is zoned as. Private fishing camps, logging and lumber camps are permitted. The requirements and stipulations are set out in section 52 of the by-law [emphasis mine]. What is important about this provision is that if the zoning permits logging and lumber camps, it follows that noise related to same would follow. This is not to suggest that the respondent has applied to have a logging camp or is running a lumber camp. It is just a factor of consideration in assessing what may or may not be acceptable noise level for the zoned property if that ever was assessed by an expert.

Drainage Issue Complaint

[90] The applicants filed photographs that they state depict drainage issues. The photographs present as water travelling along a trench into a ditch. The pavement in certain photographs, when same can be seen, appears to be wet, as if the water is rainwater. Ms. Mackenzie states that drainage ditches were trenched by the respondent that did not previously exist which pose a potential to cause severe flooding and/or water damage to her property. The evidence filed contradicts this latter allegation.

[91] Mr. Folz did construct a drainage ditch. He states that the MTO was contacted and has attended on three occasions to review the work of his construction of the drainage ditch. He states that MTO has no concerns. He also states that previous ditches and logging trails were already constructed by the previous owner of the property.

[92] A letter from Scott Middleton of the MTO was filed. The letter confirms three attendances at the site and indicates no observed issues with the ditching. The letter states that nothing has changed in the design or flow of water for the roadway or existing residents of the area. The letter also indicates that all ditches in the area were cleaned out and “re-ditched” in 2021 allowing for water movement as intended. Mr. Middleton is noted as Technical Services Supervisor. The letter is written on MTO letterhead and is dated February 23, 2023.

[93] Further, of note, and relevant to this case, is the consultant’s report filed which states that the SSMNPB does not have the authority to regulate activity involving drainage ditches. This is not an issue within the purview of the by-law the taxpayers are seeking to enforce.

[94] Accordingly, for these reasons, I find there is no evidence establishing a serious issue to be tried with respect to drainage.

Suggestion of No Approval

[95] The respondent had approval for a fishing camp, and he intends to still use the property in that regard.

[96] The fact that the respondent did not have advance approvals for building an accessory building, does not translate to a finding that the structure breaches the zoning.

Injunctive Relief

[97] At this time, there is no work going on at the property. Mr. Folz deposed that the work was almost completed in terms of the clearing and may well be completed at the time of the release of this decision.

Conclusion

[98] Overall, I found the applicant’s evidence to be mainly circumstantial and lacking in sufficiency to establish that there is a serious issue to be tried within the jurisdiction that they bring this application or to satisfy me of irreparable harm or that the balance favours granting injunctive relief.

[99] For reasons articulated herein, the application for the injunction relief is dismissed without prejudice to the applicants.

[100] Having said the above, it presented to me that the parties were willing to have some discussions regarding resolution. In that regard, I am directing that there be a pre-trial set with respect to this application. In my respectful view, based on statements made on behalf of or by the parties, this application is resolvable.

Rasaiah J. Released: March 5, 2024