Court File and Parties

COURT FILE NO.: CV-19-00001298-0000 DATE: 20241209 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CORPORATION OF THE TOWNSHIP OF ADJALA-TOSORONTIO Applicant – and – TIMOTHY SAUNDERS and ALVIN LINDHORST Respondents

Counsel: James Feehely, for the Applicant Alvin Lindhorst, in person and representing Timothy Saunders

HEARD: December 3, 2024

Reasons for Decision

CASULLO J.

Overview

[1] The Applicant, the Corporation of the Township of Adjala-Tosorontio (the “Township”), brings this application for, inter alia, an interim and permanent injunction prohibiting and restraining the Respondents from placing waste and other debris, including wrecked, dismantled, derelict, inoperative, discarded, unused or unlicensed vehicles, trailers, machinery, or appliances, on the property owned by one or both of the Respondents, as described below.

[2] The Respondents issued their own Notice of Application pursuant to Court File No. 19-1146 on June 26, 2019, seeking relief from the decision of the Property Standards committee, in which they challenged the validity of the relevant by-laws, submitted they had legal, non-confirming rights, and took the position that the Township’s application was statute barred as it was brought out of time [1].

Background

[3] Mr. Lindhorst and Mr. Saunders (collectively, the “Respondents”) are associated with Part of Lot 21, Concession 2, Adjala, as in RO169606, subject to RO16906E, in the Township of Adjala-Tosorontio, County of Simcoe (the “Property”). While title in the Property currently rests with Mr. Saunders, this was by way of a transfer from Mr. Lindhorst on April 20, 2017.

[4] The Property consists of 2.63 acres, which is entirely located within the regulated area of the Nottawasaga Valley Conservation Authority (“NVCA”), due to the presence of flood plain, slope and meander erosion hazards.

[5] Pursuant to the regulatory authority of the NVCA, a permit is required prior to the placement of any structures or vehicles within the Property in accordance with Ontario Regulation 171/06 under the Conservation Authorities Act. The Property does not enjoy such a permit.

[6] The Township has in place Property Standards By-Law 18-56 (the “By-Law”), passed pursuant to s. 15.1(3) of the Building Code Act, 1992, S.O. 1992, C. 23 (the “Act”).

[7] On June 7, 2018, the Township received a compliant that the Property had many junk cars on it. The Township’s By-Law Endorsement Officer attended the Property, subsequently making a number of requests to the Respondents to clean up the Property. When these request were not satisfied, the Township issued an Order to Comply on October 16, 2018.

[8] On February 22, 2019, the Township’s Property Standards Committee confirmed the Order to Comply, extending the date for compliance to May 1, 2019.

[9] The Respondents did not appeal the Order of the Committee to the Superior Court, nor did they complete the clean-up by May 1, 2019, as required.

[10] This matter was first before me on January 20, 2020, and scheduled to continue March 27, 2020. That return date was cancelled due to the advent of COVID. A new date was set for November 18, 2021, on the consent of all parties. However, that date was rescheduled at the Township’s request. A mediation was ordered to take place no later than January, 2022.

[11] The parties were back before me on January 9, 2024. The matter was once again adjourned on terms, the most relevant being that the Township would attend at the Property at an agreed date in May, 2024 to conduct a further site inspection.

[12] The purpose of the site inspection was to permit the Township to compile a photographic record (“Record”) of the items it maintained were in violation of the Property Standards By-Law. Within ten days of receiving the Record, the Respondents were to advise the Township what each item in the Record was used for.

Court-Ordered Site Visit

[13] The parties agreed the site visit would take place on May 31, 2024. On May 28, 2024, Mr. Lindhorst advised Mr. Feehley that an ankle injury had prevented him from making changes to the Property (ie: removing items that were in violation of the By-Law).

[14] Later that same day Mr. Lindhorst advised Mr. Feehley that he would be bringing a motion to vary the Order of January 9, 2024, seeking to set a new date, and a declaration that the Township not be permitted onto the Property until that application was heard. Mr. Lindhorst also advised that the Township could not access the Property unless he was present.

[15] Mr. Feehley reminded Mr. Lindhorst that the Order gave the Township the right to attend at the Property and conduct the inspection.

[16] On May 29, 2024 Mr. Lindhorst confirmed that the Township was prohibited from entering the Property until his motion was heard.

[17] On May 30, 2024 Mr. Feehley advised Mr. Lindhorst that the Township would be in attendance, as agreed, on May 31, 2024.

[18] When the Township arrived, access to the Property was blocked by a tractor positioned across the driveway. Mr. Lindhorst was not in attendance to remove the tractor. The Township took pictures from the roadway, which clearly demonstrate that the Property continued to be littered with debris, contrary to the By-Law.

[19] In fact, when the pictures from 2024 were compared with the pictures taken by the previous CBO for the Township in 2018 and 2019, it is apparent that the Property has remained in essentially the same condition, with abandoned vehicles, tires, trailers, and debris littered throughout.

[20] Mr. Lindhorst’s motion to vary the Order of January 9, 2024 was dismissed by Boswell J., who held that the motion record was an attack on the January 9, 2024 Order.

[21] On November 3, 2024 the Township attended at the Property a second time. Once again, entrance to the Property remained blocked by the tractor. Photographs taken on this day confirm that the site condition remained unchanged.

[22] I was advised by the parties that the Township attended the Property on November 26, 2024, during which it was noted that the Respondents had finally taken some steps to clear the Property.

Discussion

[23] Despite the recent show of progress, the Township asks that it be granted an Order with teeth, one that ensures the removal of the debris from the Property is completed.

[24] The Respondents’ main argument is that the Township’s application is out of time. I will deal with this submission first.

[25] According to Mr. Lindhorst, the Township first became aware of the purported by-law infractions when it attended the Property on June 9, 2018. However, given that the Township did not file its Application until July 26, 2019, it is six weeks beyond the one-year limitation period set out in s. 36(8) of the Act.

[26] Section 36(8) of the Act provides that,

(8) No proceeding under this section shall be commenced more than one year after the facts on which the proceeding is based first came to the knowledge of,

(a) an officer, where the proceeding is in respect of the enforcement of by-laws passed under section 15.1; or

(b) the chief building official, in any other case.

[27] Under 36(1)(c) of the Act, a person is guilty of an offence if said person “contravenes this Act, the regulations or a by-law passed under section 7.”

[28] Section 36(8) of the Act allows for prosecution under s. 15. However, s. 38(6) is limited to those instances where a municipality chooses to charge a person for breaching the Act.

[29] Here, instead of charging the Respondents, the Township followed the procedures set out in s. 15 of the Act, which provides a complete code for property standards:

• The Township issued an Order to Comply with the By-Law.
• The Respondents appealed to the Property Standards Committee (“Committee”).
• The Committee confirmed the Order to Comply, granting the Respondents an extension to May 1 2019.
• The Respondents did not exercise the right to appeal provided by s. 15.3 (7) of the Act.
• The Township commenced the application following the Respondents’ failure to complete the cleanup.

[30] The only limitation period in s. 15 of the Act is the two-week appeal period to the Superior Court of Justice.

[31] The Application is not a proceeding as contemplated by s. 36(8) of the Act.

[32] Therefore, the Township’s Application is not statute-barred.

[33] The other arguments advanced by Mr. Lindhorst do not hold water. First, he suggested that part of the zoning of the Property was agricultural, and thus he is permitted to store the tractor and other machinery on the Property. In fact, the Property is zoned “Open Space Conservation”, with no provision for the storage of derelict vehicles, trailers, machinery or appliances. No agricultural activities are being carried on at the Property.

[34] Second, Mr. Lindhorst submits that the Property enjoys legal non-conforming status. Again, this is incorrect. As Mr. Feehley explained, there was no evidence that when the By-Law was passed, the Property was used to carry on the business of a junk yard. In fact, Mr. Lindhorst himself admitted that there was no business being run on the Property.

Conclusion

[35] The Respondents have reached the end of the line. It is high time the Property is cleaned up.

[36] Revised Order to go as signed by me.

Costs

[37] As the successful party, the Township is presumptively entitled to its costs. The parties are urged to try to agree on costs.

[38] If the parties cannot agree, I will receive written submissions on a 7-day turnaround, commencing with the Township, followed by responding submissions by the Respondents, commencing 14 days from the date of release of these reasons. Costs submissions shall be no more than 2 pages in length (14 pt. font size, regular 1 inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my assistant at BarrieSCJJudAssistants@ontario.ca.

[39] If no costs submissions are received within 21 days from the date of release of these reasons, the issue of costs will be deemed to have been settled between the parties.

CASULLO J.

Released: December 9, 2024

Footnote:

[1] The application was brought without supporting material, and beyond the time required pursuant to the Building Code Act to seek relief from the municipal process.