Court File and Parties
COURT FILE NO.: CV-23-00000007-0000 DATE: 20241022 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE CORPORATION OF THE TOWNSHIP OF SOUTH FRONTENAC, Applicant AND JASON BRUNETTE and TERRI BRUNETTE, Respondents
BEFORE: Justice Nathalie Champagne
COUNSEL: James McCarthy, for the Applicant Respondents, self-represented
HEARD: October 17, 2024
Motion Endorsement
[1] In January 2023, the Corporation of the Township of Frontenac brought an application under s. 440 of the Municipal Act, 2001, S.O. 2001, c. 25 to enforce the Township’s Zoning and Safe Properties by-laws against the respondents.
[2] A consent order was rendered by Justice Ryan Bell dated May 11, 2023. Para 6 of that decision reads as follows:
- THIS COURT ORDERS THAT, without limiting the generality of the Order in section 5 above, and for further clarity, the following activities shall be and are prohibited on the Property: (i) Storage of vehicles, whether or not said vehicles are operable or licensed; (ii) Dismantling of vehicles; (iii) Mechanical work, alteration, repair or refurbishment of a vehicle, including, but not limited to, replacement or modification of any components of the said vehicle such as changing, replacing, or filling the oil, tires, filters, spark plugs, engine or fluids of a vehicle; (iv) Transportation of vehicles to or from an auto salvage yard or automobile service station; (v) Sale of vehicles; (vi) Storage, sale or salvage of scrap metal; (vii) Storage, sale or salvage of automobile parts;
[3] Paragraph 7 reads as follows:
THIS COURT ORDERS THAT, despite section 6 of this Order,
(a) the activities in subsections 6(i), and 6(iii) as listed therein shall not contravene this Order where the vehicle in question is owned by the Respondents, or either of them, where such ownership is reflected by a valid vehicle permit on which the Property is indicated as the registered address, and provided that the state of repair of the vehicle does not otherwise infringe the Safe Properties By-Law;
(b) Notwithstanding subsection 6(vii), nothing in this Order shall prohibit the Respondents from storing new or used tires or new parts to be used for vehicles owned by the Respondents, or either of them, where such ownership is reflected by a valid vehicle permit on which the Property is indicated as the registered address, provided that such tires and/or new parts are stored in a manner compliant with the Zoning By-Law and Safe Properties By-Law and that such tires and/or new parts are stored indoors and out of sight.
(c) Notwithstanding subsection 6 (iv), vehicles which are transporting another vehicle to or from a salvage yard or service station may park on the Property for a maximum of four hours within any twenty-four hour period, provided that they are not parked on the Property at any time between 8:00 P.M. and 7:00 A.M. the next day.
[4] The Township brings a motion against the respondents Jason and Terri Brunette for an order declaring them in contempt of that order as well as an order requiring them to provide proof of valid ownership of any vehicles in their yard upon request from the Township.
[5] Following the order of Justice Ryan Bell, the Township’s by-law officers visited the Brunettes’ property on a number of occasions. In November 2023, February 2024 and March 2024, by-law officers noted the presence of unlicensed vehicles or other vehicles allegedly improperly stored in their yard. The by-law officers took photos and those photographs were adduced in evidence. Some showed multiple vehicles in the yard and driveway.
[6] On each of those occasions, the Township sent the respondents a letter advising of an apparent breach of the order, but their communications were not responded to. According to the Township’s witnesses, on each of these occasions following delivery of their letter, multiple vehicles were removed from the yard.
[7] The Township’s counsel indicated that after his client received the Brunettes’ responding material and after cross-examinations on affidavits were conducted, the focus of this motion would be on three particular breaches.
[8] One involved the fact that prior to Justice Ryan Bell’s order, Mr. Brunette had a truck on his property with the logo “Recycle Right Auto Salvage” on it. After the order was issued, he posted an ad on Google for Recycle Right Auto Salvage and the ad contained the municipal address which is the subject of Justice Ryan Bell’s court order. In his cross-examination, Mr. Brunette admitted that he placed the ad after the order was made, but denied he did any salvage work on his property. He said he had intended to engage in the work (he did not say where) but got hurt and never did.
[9] Another alleged breach involved a blue Hyundai and a black Hyundai, neither of which were licensed to the respondents. They were observed on the subject property on November 14th, 15th, 17th, 23rd and 28th, 2023. At his cross-examination, Mr. Brunette explained that his friend owned the blue Hyundai and was driving in the area when he had a flat tire and drove the car to the property. The Township takes the position that this amounted to the storage of a vehicle not licensed to the respondents which is in breach of para 6 of Justice Ryan Bell’s order. The black Hyundai was said by Mr. Brunette to belong to his aunt who was visiting and visits often. The Township accepts that the presence of Mr. Brunette’s aunt’s vehicle on the subject property is not a breach of Justice Ryan Bell’s order.
[10] The Township’s evidence is that in November 2023, a by-law officer observed the above-noted blue Hyundai and two unplated vehicles to be on the property. One was a black Jeep 4X4 and one was a green Ford truck which was on a dolly. They were seen there over several days. Mr. Brunette’s evidence is that the black Jeep is his and he only uses it to drive around in the woods. He indicates that it is still on the property. He explained that when the green Ford truck was observed, he was in the process of transporting it, but his tow truck broke down and it took several days.
[11] A by-law officer went to the Brunettes’ property on February 26, 2024 and took photos of vehicles in the yard. The officer noted the presence of a silver SUV, a silver Avalanche truck and a black Volvo.
[12] On March 18, 2024, a by-law officer went by the Brunettes’ property and noted a black unplated Hyundai in the yard. The officer also observed tires which were stacked and a gas cannister in the yard. Mr. Brunette explained that the black Hyundai was his and was used at a hunting camp. He admitted he did not have a valid vehicle permit for either it, or the black Jeep 4x4.
[13] One of the by-law officers was cross-examined on his affidavit. He conceded that since Justice Ryan Bell’s order, no complaints had been made about the respondents’ maintenance of the required property standards.
The Township’s Position
[14] The Township argues that the respondent’s google ad for a salvage operation from his property breached the court order which prohibits such activity. It also argues that presence of the blue Hyundai amounted to the storage of a vehicle contrary to the order. Counsel for the Township submits that the presence of the unplated Jeep and black Hyundai on the property is in clear breach of the order. Counsel acknowledges that these breaches may be minor, but argues that compliance with court orders is important and a message needs to be sent to the respondents. The Township asks that the court simply make a finding of contempt, but that no sanction be imposed.
The Respondents’ Position
[15] The respondent Jason Brunette states that he felt pressured to agree to the order when he consented to it because the Township was threatening him with costs. Terri Brunette states that she did not participate in the proceeding and did not agree to the order. Both she and her husband say that they feel they are being harassed by by-law officers.
[16] Neither of the respondents took steps to appeal the order.
[17] Neither respondent denies the observations made by by-law officers on the dates in question and Jason Brunette offered an explanation for the presence of the blue Hyundai and the green Ford truck on a dolly. He did not deny that he had an unplated Jeep and black Hyundai on the property. He makes the point that since Justice Ryan Bell’s order, there have been no public complainants about his property.
Law and Analysis
[18] The leading authority on civil contempt is Carey v. Laiken, 2015 SCC 17. It makes clear that in order to find contempt, a court must be convinced of three elements beyond a reasonable doubt. First, the order alleged to be breached must state clearly and unequivocally what should and should not be done; second, the party alleged to have breached the order must have actual knowledge of it and third, the party allegedly in breach must have intentionally done what the order prohibits. Carey v. Laiken instructs that while a court has discretion to find contempt, it should exercise its discretionary power “cautiously and with great restraint”. The Ontario Court of Appeal in Chong v. Donnelly, 2019 ONCA 799 expressed that a finding of contempt should be a last resort and not a first resort when a party breaches a court order. Courts are advised to consider alternatives to findings of contempt, such as finding someone guilty of breaching a court order.
[19] On the material before me, I do not find that the google ad breached Justice Ryan Bell’s order. It was an ad that contained the address of the subject property, but that does not mean a salvage business was necessarily being conducted there. The Township provided no evidence that a salvage business was in fact operating on that premises.
[20] I do not accept the Township’s argument that the blue Hyundai on the property amounted to storage of a vehicle. There is no evidence to contradict the Mr. Brunette’s explanation that his friend drove it there because he had a flat tire. He says it was left there for a few days. That, in my view, is not storage.
[21] The presence of multiple vehicles in November 2023 and February and March 2024 is certainly suspect but I note that according to the order, vehicles were permitted to be on the property for no more than 4 hours between the hours of 8:00 a.m. and 5:00 p.m. I accept the respondents’ explanation that the green Ford truck was on the property on a dolly in violation of that term of the order because his tow truck broke down. These things happen. That said, the vehicle was there over a number of days and not simply overnight or until a towing company could attend to remove it. This amounted to a violation of the court order. Mr. Brunette will have to have a plan B going forward. If he is unable to tow a vehicle himself due to mechanical breakdown, he will have to hire a towing company to remove a vehicle. He must take steps to comply with the court order. In addition, I find that on the strict reading of Justice Ryan Bell’s order, the respondents are technically in breach of her order as they admit they are keeping two unplated vehicles on the property and they do not have a valid vehicle permit for either vehicle.
[22] I am not prepared to find the respondents in contempt at this juncture. The breaches are minor and should not attract a serious sanction. I do however find them guilty of breaching a court order. I will not impose a fine, though I would have, had the Township asked in its submissions that one be imposed.
[23] I am not prepared to require the respondents to provide the Township with proof of ownership of the vehicles on their property at the Township’s request. Apart from the fact that they are permitted to have vehicles on the property for 4 hours per day for transportation purposes, the Township is asking for an order requiring them to prove they are not in breach of the order, which effectively reverses the onus of proof in cases such as these. If the Township believes that the respondents are in breach of the order, it is up to it to prove that they are in breach. It is not up to the respondents to prove that they are not. The respondents are entitled to privacy and to the reasonable enjoyment of their property without unnecessary interference by the Township.
Decision
[24] The respondents are found guilty of breaching Justice Ryan Bell’s order dated May 11, 2023 and are ordered to pay the Township costs in the sum of $300.00 within 30 days.
Champagne J. Date: October 22, 2024