The Corporation of the Municipality of Greenstone v. Deroy, 2024 ONSC 3357

Court File No.: CV-24-0140-00 Date: 2024-06-11

Superior Court of Justice – Ontario

Between: The Corporation of the Municipality of Greenstone, Applicant And: Hermond Deroy, Respondent

Counsel: Mr. A.D. McKitrick and Ms. C. Hilchuk, for the Applicant The Respondent not appearing

Heard: via Zoom on May 23, 2024, at Thunder Bay, Ontario

Before: Madam Justice H.M. Pierce

Reasons on Application

Introduction

[1] The Corporation of the Municipality of Greenstone (“Greenstone”) seeks declarations that the respondent is contravening its Zoning By-law, its Property Standards By-law and its Clean Yards By-law on his two properties known as the French Hill property and the Olde Road property (“the properties.”)

[2] Greenstone complains that the respondent’s lands are littered with derelict vehicles, debris, and other waste, and that he is using the properties as an unlicensed salvage yard. The municipality also submits that neither property is a lawful waste management facility within the provisions of the zoning by-laws or licensed by the Ministry of the Environment, Conservation and Parks.

[3] The municipality seeks orders that the respondent clean up and comply with the by-laws on both properties.

[4] As well, Greenstone seeks permanent injunctions restraining the respondent and others having notice of the injunctions from breaching the by-laws in future and compelling the respondent to forthwith remove from the properties the derelict vehicles, debris, and other waste to a place where it may be lawfully stored or disposed of, bringing the properties into compliance with the by-laws.

[5] Although served with the application, the respondent did not appear at the hearing of the application and did not file responding material.

The French Hill Property

[6] The respondent is the registered owner of a property municipally identified as 798 Highway 584 South, Geraldton Ward, in the Municipality of Greenstone. The property is identified by PIN No. 62413 – 1829, (LT), and is also described in these reasons as the French Hill Property. As the property is contained within Greenstone’s municipal boundaries, it is subject to its by-laws, including for Zoning (By-law No. 23-77), Property Standards (By-law No. 23-83), and Clean Yards (By-law No. 24-04).

[7] The French Hill property is located in a residential low-density zone (R1).

The Olde Road Property

[8] The respondent is also the registered owner of a property municipally identified as 35 Olde Road, Geraldton Ward, in the Municipality of Greenstone. The property is identified by PIN No. 62413 – 0639, (LT) and is identified in these reasons as The Olde Road property. As it falls within the municipal boundaries of Greenstone, it is subject to the by-laws identified above. The Olde Road property is zoned residential multiple zone (R2).

The Evidence

[9] Affidavit evidence from Stephen Mykulak, Greenstone’s Director of Planning and Protection Services and Chief Building Official, includes extensive photographs. These pictures show both properties replete with derelict motor vehicles, travel trailers, broken-down school buses, old boats, damaged tractor trailers, utility trailers, discarded lawn mowers and snow machines, cast-off tires, junked household appliances with doors left on, broken furniture, scrap plastic, lumber, metal and other building materials, and similar refuse. The photographs tell a story. No one would want to live near either of these properties. They are an eyesore.

[10] The photographs document the period between June 2022, when the first complaint was made to the municipality about the properties, until March of 2024.

[11] Furthermore, Mr. Mykulak deposes that neither property is licensed or approved as a waste management system by the Ministry of the Environment and neither property has an “end-of-life vehicle waste disposal site registration.”

[12] It is not an exaggeration to say that these properties are in deplorable condition. The properties are not fenced and pose a hazard to the health and safety of others, especially to children.

[13] Greenstone has attempted to secure the respondent’s voluntary compliance with its zoning by-laws. Its solicitors have sent demand letters, to no avail. Instead, the evidence indicates that more derelict vehicles, debris, and other waste has been deposited on the properties since the first complaint was made, continuing until as recently as March 15, 2024.

Zoning By-law

[14] While zoning by-laws apply to individual property-owners, their regulatory effect is cumulative, providing a community with neighbourhoods, public spaces and green space that are free of nuisance incompatible with prescribed land use. Zoning regulation also affords existing and prospective landowners and users with predictability about the current and future use of land and avoids conflicting or incompatible uses; hence, these by-laws reduce conflict between neighbours.

[15] Greenstone’s current zoning by-law, No. 23-77 was passed pursuant to the Planning Act, R.S.O. 1990, c. P.13 on November 27, 2023, and came into effect that day. Under the zoning by-law, a use of land is prohibited unless the by-law specifically permits it.

[16] The zoning for the residential low density (RI) zone is found at s. 6 of the by-law. It permits the following uses: single detached dwelling, two-unit dwelling (including a converted dwelling, duplex, semi-detached, accessory apartment, and additional residential unit), tiny house, group home, crisis care facility, park, playground, community garden and public service use.

[17] The zoning for the residential multiple zone (R2) is found at s. 7 of the by-law. It permits the following uses: apartment dwelling, boarding house, lodging house establishment, multiple unit dwelling, row house or town house, triplex dwelling, group home, continuum-of-care facility, park, playground, community garden, public service use/public utility.

[18] Mr. Mykulak deposes that neither the residential low density zone (R1) in which the French Hill property is located nor the residential multiple zone (R2) in which the Olde Road property is located, permit the use of property as a salvage yard, including, by definition, a junkyard. He also deposes that the respondent’s use of these properties did not comply with previous zoning by-laws.

[19] Greenstone’s zoning by-law specifically defines a salvage yard as:

…a lot and/or building or portion thereof where used goods, wares, merchandise, articles, motor vehicles, machinery or parts thereof are processed or sold for further use, dismantled, or abandoned. This definition may include a junk yard, a wrecking yard, a scrap metal yard, and an automobile wrecking yard on the premises.

[20] The zoning by-law also defines a waste management facility as:

…a site which is licensed or approved by the Ministry of the Environment, Conservation and Parks and/or its agents where garbage, refuse, domestic or industrial waste, excluding radioactive or toxic chemical wastes, is disposed of or dumped. This definition shall include waste transfer stations, processing sites, septage disposal, and recycling depots….

[21] I conclude that Greenstone has shown, on a balance of probabilities, that the respondent has breached and is breaching the zoning provisions of its R1 and R2 by-laws by using his properties as a junkyard, a scrap metal yard, an automotive wrecking yard, and a place where derelict vehicles, debris and waste are allowed to accumulate.

[22] I also conclude that the respondent breached prior zoning by-laws in a similar manner.

Property Standards By-law

[23] Greenstone passed its current property standards by-law No. 23-83 pursuant to the Building Code Act, 1992, S.O. 1992, c. 23 on December 11, 2023. It came into effect that day. Mr. Mykulak deposes that the respondent’s use of the French Hill property contravened the previous property standards by-law.

[24] As Mr. Mykulak deposes, the purpose of the property standards by-law is to set out minimum standards for regulated properties so that they are safe, do not become a nuisance, and to prohibit occupation of properties that do not meet the standards.

[25] The by-law prescribes corrective action for

…property that does not conform with the standards to be repaired and maintained to conform with the standards or the site to be cleared of all buildings, structures, debris or refuse and left in a graded and leveled condition.

[26] Greenstone submits that the respondent has breached the terms of its property standards by-law described as follows.

[27] Section. 2.16 of the by-law requires the property owner to keep the property in good repair to prevent hazards. Section 2.44 prohibits a property owner from using the property in a manner that creates a nuisance or allowing a nuisance to develop on the property. Section 2.49 prohibits the owner or occupant from allowing an unsafe condition to arise or continue on the property.

[28] Section 2.45 of the by-law requires both the owner and the occupant of the property to keep it free of debris, regardless of the origin of the debris.

[29] Section 2.47 of the by-law specifies that neither the owner nor the occupant shall store inoperative motor vehicles or parts of motor vehicles unless in compliance with s. 2.48 of the by-law which limits storage of vehicles to the lawful conduct of a business or trade, storage in an enclosed building or a single vehicle which is tarped or covered.

[30] I conclude that Greenstone has shown, on a balance of probabilities, that the respondent has breached and is breaching the zoning provisions of its Property Standards by-laws by failing to prevent hazards on his properties, by creating or allowing a nuisance thereon, by failing to keep the properties free from debris, by storing inoperative motor vehicles and parts on the properties and generally permitting unsafe conditions to arise and continue.

[31] I also find that the respondent breached Greenstone’s prior Property Standards by-law in a similar manner.

Clean Yards By-law

[32] The current Clean Yards By-law 24-04 was passed pursuant to the Municipal Act, 2001, S.O. 2001, c. 25 on January 15, 2024, and came into effect that day. It was preceded by a Clean Yards By-law in effect from 2003.

[33] Mr. Mykulak deposes that the purpose of the Clean Yards By-law is to require yards to be put in a safe condition such that they do not become unsightly or a nuisance.

[34] Section 2.03.1 of the by-law requires an owner and occupant to keep yards and vacant lands maintained and free of accumulated rubbish, debris, and discarded objects while section 2.03.2 requires that the property be kept free from conditions such as holes or excavations that might create a health, safety, or accident hazard.

[35] The by-law includes a comprehensive definition of “debris” in the definitions, as follows:

debris” means, without limitation, refuse, waste, discarded materials, or garbage of any kind whatsoever. The term includes the following, whether of value or not:

a) accumulations of litter, remains, rubbish, trash; b) weighty or bulky items such as appliances, furnaces, furnace parts, pipes, pipe fittings, water or fuel tanks, placed in a condition or location where they cannot be used for their intended purposes; c) paper; d) cartons; e) dilapidated furniture; f) crockery, glass, cans, containers; g) garden refuse and trimmings; h) material from or for construction and demolition projects; i) domestic and industrial waste; j) dead or dying trees, branches, leaves or shrubs; k) inoperative motor vehicles; l) motor vehicle parts; m) mechanical equipment or equipment parts placed in a condition or location where they cannot be used for their intended purposes; n) earth or rock fill; o) clothing or other household cloth or linens lying in an unprotected condition; p) objects or conditions that may create a health, fire or accident hazard; and q) animal feces.

[36] The by-law also defines “waste” as,

Any waste of any kind whatsoever and without limiting the generality of the foregoing includes rubbish, debris, refuse, sewage, effluent, garbage or litter of any type and household waste.

[37] Greenstone submits that the respondent violated the following terms of the Clean Yards by-law: sections 2.03.1, 2.03.2, 2.06.1, 2.06.2, 2.06.3, 2.06.4, 2.06.5, 2.08.1, 2.08.2, 2.09.1 and 2.09.2. It submits that the by-law was breached by the deposit and storage of multiple derelict vehicles, debris, and other waste on both properties.

[38] Section 2.06.1 of the Clean Yards by-law requires each owner or occupant to keep his or her yard free and clear of waste, refuse, domestic and industrial waste, or anything else that may constitute a health, fire, or safety hazard.

[39] Section 2.06.2 of the by-law prohibits using a yard to deposit or keep waste. Section 2.06.3 deals with waste storage in a yard. It requires waste to be stored in a tight-fitting container that is impervious to water; prevents the escape of offensive odour or waste; be kept inaccessible to pests, insects, animals, birds, or vermin; not create a health, fire, or safety hazard; and not be exposed to weather or wind.

[40] Section 2.06.4 of the by-law requires the owner and occupant who contravene sections 2.06.1, 2.06.2 or 2.06.3 to clean and clear the property at the person’s own expense and cease using the property in a prohibited manner.

[41] In addition, section 2.06.5 of the by-law provides that no person shall cause or permit the throwing, placement or depositing of refuse or debris on private or public land.

[42] Section 2.08 deals with derelict vehicles. Greenstone submits that the respondent is also in violation of these provisions.

[43] Section 2.08.1 provides that no owner or occupant of land shall use any land or structure in the municipality for storing derelict, used or inoperative motor vehicles or vehicle parts for the purpose of wrecking or dismantling them or salvaging vehicle parts for sale or other disposal including for the repair of other vehicles.

[44] Section 2.08.2 of the by-law elaborates on vehicle storage. It prohibits an owner or occupant from storing, keeping, placing, or permitting storage, keeping or placement of derelict or inoperative motor vehicles, detached motor vehicle parts unless expressly permitted and/or wrecked, dismantled, discarded, inoperative or abandoned motor vehicles, recreational vehicles, machinery, appliances, boats, trailers, utility trailers, mobile homes or any similar vehicles conveyances or equipment.

[45] Section 2.09 deals with public nuisance. Specifically, section 2.09.1 prohibits an owner or occupant from using property in a manner which creates a public nuisance. Section 2.09.2 also prohibits and owner or occupier from allowing a condition to develop or remain on property in a manner which constitutes or creates a public nuisance.

[46] I conclude that that Greenstone has shown, on a balance of probabilities, that the respondent has breached the current and previous Clean Yards by-law by allowing the accumulation of debris, including derelict vehicles, recreational vehicles and parts, appliances, broken furniture, scrap metal and lumber and other types of waste on both properties, thereby creating a nuisance as well as a health, fire, or accident hazard.

Statutory Injunction and Restraining Order

[47] Greenstone seeks a permanent statutory injunction pursuant to s. 440 of the Municipal Act, 2001, S.O. 2001, c. 25.

[48] Section 440 of the Act provides:

If any by-law of a municipality or by-law of a local board or 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 the application at the instance of a taxpayer or the municipality or local board.

[Emphasis added].

[49] The traditional three-part test for an interim injunction set out in RJR – MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at para. 43 does not apply to an application for a statutory injunction under the Municipal Act. See: Allied Properties v. 1064249 Ontario Inc., 2016 ONSC 6665, at para. 4.

[50] The burden is on the municipality to establish that its by-law has been breached. However, the courts will only refuse applications for injunctions to enforce a by-law which it establishes is being breached in exceptional circumstances: Newcastle Recycling Ltd. v. Clarington (Municipality), at para. 32. See also Leamington (Municipality) v. Ramirez, 2023 ONCA 334, para. 22.

[51] In this case, the municipality has proven by extensive photographic and affidavit evidence, dealing with the two properties between June 2022 and March 2024, that the respondent has clearly breached its Zoning, Property Standards, and Clean Yards by-laws and that the accumulation of derelict vehicles and debris is on-going. The respondent has not challenged the municipality’s application or its evidence. There are no exceptional circumstances. I am satisfied that, in the public interest, a statutory injunction should issue.

Disposition

[52] For the reasons set out above, the Municipality shall have judgment as follows:

1. Declaring that the Respondent is contravening the Municipality’s Zoning By-Law 23-77 by using the French Hill property, known municipally as 798 Highway 584 South, Geraldton Ward, Municipality of Greenstone, identified by PIN No. 62413 – 1829 (LT) and by using the Olde Road property, known municipally as 35 Olde Road, Geraldton Ward, Municipality of Greenstone, identified by PIN No. 62413 – 0639, (LT) as salvage yards and depositing, placing, keeping, storing and permitting derelict vehicles, debris and other waste on these properties.
2. Declaring that the Respondent is contravening the Municipality’s Property Standards By-Law No. 23-83 by depositing, placing, keeping, storing, and permitting derelict vehicles, debris and other waste on his French Hill and Olde Road properties.
3. Declaring that the Respondent is contravening the Municipality’s Clean Yards By-law No. 24-04 by depositing, placing, keeping, storing, and permitting derelict and inoperative motor vehicles, debris and other waste on his French Hill and Olde Road properties.
4. Granting a permanent injunction and order restraining the Respondent and anyone having notice of this injunction and order from contravening the: a) Zoning By-law by using the respondent’s French Hill or Olde Road properties as a salvage yard and for the depositing, placing, keeping, storing and permitting of derelict vehicles, debris and other waste thereon; b) Property Standards By-law by depositing, placing, keeping, storing and permitting derelict vehicles, debris and other waste on either the respondent’s French Hill or Olde Road properties; c) Clean Yards By-law by depositing, placing, keeping, storing, and permitting derelict vehicles, debris and other waste on the respondent’s French Hill or Olde Road properties.
5. Requiring the Respondent to forthwith commence the steps required to bring the French Hill and Olde Road properties into compliance with the municipality’s Zoning By-law, the Property Standards By-law and the Clean Yards By-law and to ensure that each of these properties comply with each of these by-laws no later than 90 days from the date the respondent is served with this judgment, with work to commence no later than 30 days from the date the respondent is served with this judgment for the removal of all derelict vehicles, debris and other waste to a location where such material may be lawfully kept or disposed of.
6. If the Respondent fails to comply with the terms of this judgment, the Municipality may return to Court on notice to the Respondent to seek directions, sanctions, or authority to take other action.
7. The Respondent shall, within 30 days, pay the Municipality’s partial indemnity costs of this application fixed at $15,000.00 inclusive of HST and disbursements.

“originally signed by”

The Hon. Madam Justice H.M. Pierce

Released: June 11, 2024