Ontario Superior Court of Justice
Court File No.: CV-22-00000049-0000
Date: 2025-03-19
Parties
Between:
The Corporation of the Town of Caledon
Applicant
Counsel: David Germain and Jaikaan Goraya
And
6086 Mayfield Inc., Falcon Motor Xpress Ltd., Falcon Truck & Tire Centre Inc., and Jarnail Singh Sidhu
Respondents
Counsel: Meaghan McDermid and Andrew Valela
Heard: February 18, 2025, in person
Ruling on Motion
Wilkinson
Introduction
[1] The Applicant seeks a declaration that the Respondents have failed to comply with the terms of a consent order signed by Justice Miller on January 18, 2023 (“the Order”), to remove certain items from a property owned by the Respondent, 6086 Mayfield Inc., located at 6086 Mayfield Road, in Caledon, Ontario (“the Property”).
[2] The Applicant also seeks an order permitting it to enter on the Property to take the steps that are necessary to remove the items that the Order specifies are required to be removed. The Applicant also seeks an order that the Respondents pay the costs incurred by the Applicant in removing the items specified in the Order. The Applicant does not seek a finding of contempt against the Respondents for their alleged failure to follow Justice Miller’s order.
[3] The Respondents take the position that they have substantially complied with the terms of the Order. They argue that in the absence of compelling grounds, the Applicant’s motion under Rule 60.11(9) should be dismissed: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Alternatively, if I find that the Respondents have not complied with the Order, they seek 90 days to correct the non-compliance, with terms identifying the specific structures, trucks, trailers and equipment that the Applicant may remove from the Property.
The Issues
[4] This motion primarily involves the interpretation of certain paragraphs of an Order made on consent by Justice Miller on January 18, 2023, which required the removal of all structures, trucks, trailers and associated equipment from the northern portion of the Property by August 31, 2023. The Order further stated that these same items were to be removed from the southern portion of the Property by October 31, 2023.
[5] The three questions to be answered are:
i) What is the correct interpretation of the January 18, 2023, order?
ii) Have the Respondents complied with the January 18, 2023, order?
iii) If not, what remedy shall be granted in favour of the Applicant?
[6] The Applicant submits that the Order restrains the Respondents from having any trucks or trailers on the Property. The Applicant also submits that the Order restrains the Respondents from having any structures on the Property, apart from a brick garage and a single dwelling, now used as an office, for which an exception is granted in paragraphs 11 and 12 of the Order.
[7] The Respondents argue that the Order is to be read to allow trucks and structures on the Property, as long as they are not being used for the purpose of a transportation depot.
[8] For the reasons that follow, I find that the Respondents have failed to comply with the terms of the Order. The Respondents are granted 60 days from today’s ruling to correct the non-compliance, failing which the Applicant shall be permitted to enter upon the Property to take whatever steps are necessary to remove the illegal items and structures from the Property, at the cost of the Respondents.
Background
[9] The Property was purchased by the Respondents in 2015. The Property has split zoning. The northern portion of the Property permits it to be used as a transportation depot, subject to a holding provision, which restricts uses other than those which legally existed on the Property on the day the zoning by-law was passed, on August 10, 2010.
[10] The Respondents are involved in a trucking business and wish to use the Property as a transportation depot. The Respondents are in the process of seeking approval from the Applicant to lift the holding provision. As of the date this motion was argued, the holding provision remains in place.
[11] The Applicant provides photographs demonstrating that the Respondents have been parking trucks outdoors on the Property, which it says is a violation of the zoning by-law. The Applicant also provides photographs of asphalt and fill used to create a parking area on the Property, which it says is also a violation of the by-law. The Applicant also provides photographs of light standards, and other structures that have been erected on the Property that it says contravene the by-law.
[12] The Applicant also provides affidavit evidence from Rebecca Gunness, a Municipal By-Law Enforcement Officer, who stated that the Applicant has received multiple complaints regarding the Respondents’ operation of a transportation depot on the Property, contrary to the zoning by-law.
[13] Ms. Gunness also states in her affidavit that the Applicant has made orders under the Building Code Act, 1992, S.O. 1992, c. 23, and the Municipal Act, 2001, S.O. 2001, c. 25, requiring the Respondents to comply with the by-law, but that the illegal use of the Property has continued.
[14] In April 2022 the Applicant commenced this Application seeking declaratory and injunctive relief to restrain the Respondents from continuing their illegal use of the Property as a transportation depot.
[15] The Respondents provide affidavit evidence that after the Order was signed, the Respondents continued to have consultations with the Applicant regarding their intention to make a Subdivision Application to the Applicant. If successful, the Application would remove the holding provision, and allow the northern portion of the Property to legally be used as a transportation depot. The Respondents provide affidavit evidence that they believed the holding provision would be lifted prior to the deadlines set out in the Order, and that they would therefore be compliant with the terms of the Order within the deadlines.
[16] When the holding provision was not lifted, the Respondents began removing trucks from the Property. The Respondents requested extensions from the Applicant to extend the deadlines under the Order. The Applicant refused the requests for extensions.
[17] The Respondents filed a Subdivision Application with the Applicant on December 8, 2023. The Respondents have continued to receive communications from the Applicant regarding the status of the Subdivision Application, including a letter dated July 24, 2024, which stated that it predicted that the holding provision would be lifted from the Property later that year once all the identified issues had been addressed.
Position of the Applicant
[18] The Applicant submits that the Respondents are in contravention of the Order, as the Respondents’ use of the Property constitutes the operation of a transportation depot, or, in the alternative, involves several components of that use, including parking trucks on the Property and servicing trucks, contrary to the terms of the Order.
[19] The Applicant further submits that the Respondents have contravened the Order because there are still structures on the Property that have not been removed, for which no exception was made under the Order. In particular, there are five trailers on the southern portion of the Property, three of which are used to store parts, one to store office files, and the fifth trailer is used as a lunchroom. As well, the Applicant identifies light standards, a gatehouse, a weigh scale, concrete barriers, a fuel tank, and other items which remain on the Property, contrary to the terms of the Order. The Applicant provides photographs establishing that these items remain on the Property.
[20] On May 3, 2024, counsel for the Applicant sent an email to former counsel for the Respondent that references the Order. The letter states:
Your client has consistently and repeatedly breached the Order. Among other breaches, your clients have acted as follows:
- They ignored the August 31, 2023 deadline for removing structures and equipment from the northern portion of the Property;
- They refused staff entry to the Property on numerous occasions;
- They were late in delivering the ESA reports to the Town and, to date, they have not addressed the Towns’ comments on the reports provided;
- They have failed to remove various structures (light standards, illegal garage additions, shed, etc) from the Property;
- They have never fully removed all truck and trailers from the Property;
- They have recently been observed bringing additional trucks and trailers onto the Property.
We have written to you a number of times to raise areas of non-compliance. Despite the Town’s efforts to encourage compliance, it appears that your clients do not intend to comply with the Order.
[21] Former counsel for the Respondents responded to the email on May 16, 2024, as follows:
I just received contact from the Sidhus re 6086 Mayfield. They have been out of the country and they have poor connectivity. Nothing is happening at the yard, according to their knowledge from prior to their departure. When they get back in the country late next week, they are going to review and advise me further.
[22] The Applicant argues that the email response from the former counsel for the Respondents did not take any issue with the Applicant’s interpretation of the Order, or the Applicant’s position that the trucks and other structures on the Property breached the Order.
[23] The Applicant also takes the position that without prejudice settlement communications between counsel are relevant to be considered at this motion, as the communications demonstrate that the parties were engaging in robust settlement discussions prior to the consent Order, and provide context for the Order. The Applicant argues that the public interest favours an exception to settlement privilege in this case.
Position of the Respondents
[24] The Respondents urge me to interpret the Order by considering its overall purpose, which they say was to stop the Respondents from operating a transportation depot on the property. They argue that the Order must be interpreted in the context in which it was made, including consideration of the intentions of the parties, as opposed to focusing on isolated paragraphs in the Order read literally.
[25] The Respondents point to the first paragraph of the Application, which states that the Applicant was seeking declaratory and injunctive relief to restrain the Respondents from continuing their illegal use of the Property as a transportation depot. They take the position that the Order only limits the trucks and structures on the Property that are used for the purposes of a transportation depot, but does not prevent them from having trailers on the Property that are used to store files, spare parts, and also to function as a lunchroom.
[26] The Respondents provide an affidavit from Satbir Sidhu, who is heavily involved in the management of the Respondent companies. Mr. Sidhu deposes that the Property is no longer being used as a transportation depot, and that all structures, trucks, trailers, and equipment associated with the transportation depot use were removed. He further deposes that if trucks are on the Property, it is only for brief periods of time for the trucks to receive maintenance, diagnostic checks, or to scale their loads.
[27] Mr. Sidhu deposes that the small shed at the back of the Property is used to store personal belongings, and is not connected to using the Property as a transportation depot. Mr. Sidhu also states that there is also a security gatehouse, a weigh scale, a snowplow, and waste bins which he claims are used for office garbage at the Property.
[28] Mr. Sidhu confirms in his affidavit that trucks do attend at the Property for maintenance, but leave after the maintenance is completed. Mr. Sidhu deposes that no truck repairs are taking place at the Property. He also states:
There are approximately 200 trucks in the Respondent corporations’ fleet. On Sundays and Mondays when trucks are leaving for their assigned dispatches or trips, there may be up to 20 trucks which attend the Property on a short-term basis. Over the balance of the week, there may be up to five trucks each day which attend the Property on a short-term basis. These trucks are driven by employees who attend at the office on the Property to collect or drop-off paperwork, to scale their load, or to deal with load issues. The trucks are generally parked on the Property for 10 to 15 minutes before departing to their destination, although in cases where a load is overweight, the truck might be on the Property for more than 15 minutes.
[29] The Respondents argue that the Order is inconsistent when it requires “all” structures, trucks, trailers, etc. to be removed in paragraphs 8 and 9, but then creates exceptions for structures that are permitted to remain on the Property in paragraphs 11 and 12. The Respondents therefore argue that the correct interpretation of the Order is that only structures related to the transportation depot must be removed.
[30] The Respondents submit that the primary purpose of the Order is to restrain the Respondents from using the Property as a transportation depot, and that to go farther and require the removal of all structures on the Property even if they are not associated with the use of a transportation depot strays beyond the purpose of the Order.
Consideration of Settlement Discussions
[31] The Applicant seeks to rely upon without prejudice settlement correspondence to demonstrate the intention of the parties and the context of the Order. The Court of Appeal for Ontario provides guidance as to when this type of evidence can be relied upon in R. v. Delchev, 2015 ONCA 381. To justify the consideration of settlement discussions, a party must show that, on balance, a competing public interest outweighs the public interest in encouraging settlement: Delchev, at para. 28. In paragraph 30 of the decision, Justice Tulloch quoted from the Supreme Court in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, at para. 31:
Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute. Sometimes called the "without prejudice" rule, it enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in litigation. This promotes honest and frank discussions between the parties, which can make it easier to reach a settlement: "In the absence of such protection, few parties would initiate settlement negotiations for fear that any concession they would be prepared to offer could be used to their detriment if no settlement agreement was forthcoming" (A. W. Bryant, S. N. Lederman and M. K. Fuerst, The Law of Evidence in Canada (3rd ed. 2009), at para. 14.315).
[32] Settlement privilege is important because parties would be reluctant to engage in settlement discussions if those discussions could be admitted at trial as evidence of concessions. Exceptions to this general privilege are justified where evidence of the settlement or negotiations is intended for use other than illustrating the weaknesses of one party's case: Delchev, at para. 31.
[33] The Applicant submits that the public interest in encouraging settlement is furthered by admitting the settlement communications into evidence to demonstrate that robust negotiations did in fact take place, and that there are no concessions made by the Respondents in the documents proposed to be put into evidence. In addition, the Applicant seeks to use this documentation to challenge the affidavit evidence from Mr. Sidhu that he felt rushed during the settlement discussions taking place in the morning before the Order was made.
[34] The Respondents object to the Applicant referring to these discussions in its factum for this motion, as they submit that there is no public interest at stake that would favour an exception to the rule against disclosing documents containing settlement privileged discussions.
[35] While the content of the settlement discussions may be relevant to assist with a determination as to the intention of the parties at the time that the Order was agreed to, I will not be considering privileged settlement documents in determining this motion. I do not find that there is a competing public interest in the evidence before me that outweighs the public interest in encouraging settlements that would justify the disclosure of settlement discussions between the parties.
[36] Further, the fact that Mr. Sidhu may or may not have felt rushed to make a decision on the day the agreement was made is not relevant to my consideration of the issues in dispute on this motion. The Respondents are not moving to set aside the Order. My primary function is to provide a determination of the appropriate interpretation of the Order.
Authorities
[37] Orders and judgments from the Court must be followed. Orders and judgments remain effective and binding unless they are either set aside or reversed on appeal: Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, at paras. 142-143.
[38] Rule 60.11(9) expressly permits a court dealing with a situation of non-compliance with a court order to order the completion of an act by someone other than the party failing to comply with the court order, at the expense of the party failing to comply.
[39] The court does not need to make a finding of contempt to make an order under Rule 60.11(9): Guelph Centre Partners Inc. v. Guelph Storm Ltd., 2005 CarswellOnt 467, at para. 38.
[40] In Kuang v. Young, 2023 ONSC 2429, at para. 7, Justice Kristjanson reviewed case law dealing with interpreting judicial orders, and concluded that interpretation of judicial orders requires a contextual approach to determine the intent of the judge based on:
(a) The express language of the order itself,
(b) The purpose of the terms of the order,
(c) The authority to make the order, including the statutory context and procedural rules,
(d) The broader context within which the order was granted, including the pleadings and the litigation events leading to the order,
(e) Resolving apparent inconsistencies between different terms by reaching an interpretation which can reasonably give meaning to each of the terms in question.
[41] Consent judgments should be interpreted according to the principles of contractual interpretation because they are a species of contract. A consent judgment or order is not a judicial determination on the merits of a case, but only an agreement elevated to an order on consent. The basis for the order is the parties’ agreement, not a judge’s determination of what is fair and reasonable in the circumstances: Johnston v. McLean, 2024 ONCA 791, quoting from James G. McLeod in his annotation in the Reports of Family Law to Thomsett v. Thomsett, 2001 BCSC 546, at pp. 428-29.
[42] The interpretation of a court order should include the purpose of the terms of the order and the express language of the order. Where there are apparent inconsistencies between different terms, the court should attempt to find an interpretation which can reasonably give meaning to each of the terms in question: BG Checo International Ltd. v. British Columbia Hydro and Power Authority, at para. 9.
[43] Based on the principles of contractual interpretation, the court should read consent orders as a "whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract": Johnston at para. 17, quoting Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, at para. 47.
Analysis
[44] The main question before me is whether the Respondents have complied with the Order. To answer this question, the correct interpretation of the Order must first be determined.
What is the correct interpretation of the January 18, 2023 order?
i) The express language in the Order
[45] The preamble in the Order states that the following issues were considered by Justice Miller in making the consent Order:
On reviewing the materials and the draft Order consented to by both parties, upon being advised that the parties have reached an agreement with respect to costs, and upon being advised that, upon the removal of all trucks, etc. from the Property (emphasis mine), the Town would consent to the Municipal Property Assessment Corporation reclassifying any vacant portions of the Property as vacant industrial land for property tax purposes, and upon hearing the submissions of counsel for the parties, this court declares…
[46] The preamble says nothing about transportation depots. The focus is on vacant portions of the Property receiving a different property tax allocation resulting from trucks etc. being removed from the Property.
[47] The Order then goes on in paragraph 1 to confirm that the Respondents’ use of the Property contravenes the Applicant’s Comprehensive Zoning By-law. Paragraph 1 does not specifically state the manner in which the Respondents’ use of the Property contravenes the by-law, although the Application itself clearly states that the Applicant was seeking injunctive relief to prevent the Respondents from operating a transportation depot on the Property.
[48] In paragraph 2, the order confirms that the Respondents’ importation of fill onto the Property and alteration of the grade of the Property without permits is in contravention of the Applicant’s Site Alteration By-law.
[49] Paragraphs 3, 4, and 5 of the order confirm that the Respondents are in violation of three different orders from the Applicant. The first order dealt with the Respondents illegally building an addition to the garage, and the second and third orders dealt with the Respondents illegally depositing fill on the Property. None of these orders from the Applicant dealt with the issue of trucks being on the Property.
[50] Paragraph 6 is the first time the words “transportation depot” appear in the Order. It states:
- THIS COURT ORDERS a temporary and permanent injunction restraining the Respondents from:
a) using the Property or permitting the Property to be used for the operation of a transportation depot, or any component of that use, including but not limited to the parking, storage, and/or repair of commercial vehicles, transport trucks, trailers or associated equipment without further amendment to the Zoning By-law to permit such use, pursuant to the Planning Act.
b) importing fill onto or altering the grade of the Property without the written authorization of the Town pursuant to the Site Alteration By-law;
For clarity, the injunctive relief herein would not restrain the Respondents from using the Property in accordance with any future approval granted pursuant to the Planning Act.
[51] In my view, the key words in part 6(a) of the order are “or any component of that use”. What are the components of a transportation depot? The Caledon Comprehensive Zoning By-Law defines “transportation depot” as follows:
Transportation Depot means a lot used principally for the parking, storage, servicing, hiring, loading or unloading of tractor trailers, buses or other fleet vehicles such as but not limited to, taxis, limousines and tow truck including owner-operators, and must include a building containing a use directly related to the parking, storing, dispatching, servicing, hiring, loading or unloading of such fleet vehicles…
[52] Even though the number of trucks attending at the Property is now greatly reduced from former levels, the Respondents confirm that trucks still go to the Property each day, sometimes up to 20 trucks per day. I therefore do not find that the primary use of the Property is to maintain an office and to store parts. I find that the Property currently has a mixed use of office space, storage facilities, and a lunchroom, in addition to being used to weigh trucks and to service trucks. I find that the storage of truck parts, servicing trucks, and parking trucks on the Property are “components” of the use of the Property as a transportation depot.
[53] In addition, although not specifically identified in the definition of transportation depot, I find that the presence of the weigh scale and fuel tank on the Property are also components of a transportation depot.
[54] If I am incorrect in my finding that components of the Property are currently being used as a transportation depot, the current use of the Property would not offend paragraph 6(a) of the Order. However, the specific terms of the Order in paragraphs 8 and 9 provide greater clarity as to the specific items to be removed from the Property by specific deadlines. The language is clear and direct, and requires the removal of “all structures, trucks, trailers and associated equipment” subject to the two exceptions in paragraphs 11 and 12.
[55] It is also important to recognize that paragraph 11 of the Order specifically makes an exception that the garage on the Property is permitted to remain, and is allowed to contain a maximum of four vehicles. Paragraph 11 also states:
For greater certainty, no outdoor parking of trucks shall be permitted, and no repair of trucks, trailers or other equipment shall be permitted on the Property.
[56] I also note that the paragraph 12 of the Order makes a specific provision for the dwelling on the Property to remain to be used as an office. I find that paragraphs 11 and 12 were intentionally agreed upon by the parties to be exceptions to the requirement to remove “all structures” on the Property set out in paragraphs 8 and 9 of the Order.
[57] The language in the Order when reviewed in totality identifies a prohibition on operating a transportation depot, and as well, a prohibition on structures, trucks, trailers, and associated equipment being located on the Property. Paragraphs 8, 9, and 11 do not state that these items must be associated with the use of a transportation depot; the paragraphs simply list the items that shall be removed without any further qualification.
[58] The language in the Order is very clear, and was agreed to by the Respondents. The order does not grant exemptions for temporary parking of trucks, nor does it grant exemptions for trailers or other structures not related to the operation of a transportation depot.
ii) The purpose of the Order
[59] The Respondents argue vigorously that the main purpose of this Order is to restrain the owners of the Property from using it as a transportation depot. I agree. The Application itself states in its first paragraph that the Applicant was seeking declaratory and injunctive relief to restrain the Respondents from continuing their illegal use of the Property as a transportation depot. The Applicant received multiple complaints from members of the public, who identified issues with excessive noise from the trucks, dust, and traffic issues caused by trucks coming and out of the Property. The Applicant was clear in its submissions that it is in the public interest for the Applicant to enforce its by-laws, which involves ensuring that the Respondents are not engaging in an illegal use of the Property.
[60] However, the fact that the main purpose of the Order was to prevent the Respondents from operating a transportation depot does not mean that the Order does not have additional purposes. If the prohibition against using the Property as a transportation depot in paragraph 6(a) was all that the Order was intended to achieve, there would be no reason to include a reference to the specific items required to be removed that are set out in subsequent paragraphs 8, 9, and 11. When the Order is reviewed in its totality, it is clear that the Order was intended to require the removal of all the items specified in paragraphs 8 and 9, subject to the exceptions in paragraphs 11 and 12. There is no language in those paragraphs specifying that only items related to a transportation depot shall be removed.
iii) The context of the Order
[61] The Respondents have known the Applicant’s position that their use of the Property was breaching a by-law since September 12, 2019, when By-Law Enforcement Officer Maltby first sent them a letter demanding that they “remove all transport trucks, transport trailers, scissor lifts and stop the operation of a transportation and motor vehicle repair facility from the Subject Property” [emphasis added]. This letter identifies the trucks and trailers as an issue in addition to the operation of the transportation depot.
[62] I accept the evidence of the Respondents that prior to the signing of the consent Order, they were already well into the process of attempting to lift the holding provision on the Property, and that at the time the Order was agreed to, they had an expectation based on representations made by the Applicant that the holding provision would be lifted by the time the deadlines set out in the Order occurred. However, the only language in the Order that speaks to the ongoing Application with the Applicant are the words at the bottom of paragraph 6, which state that the injunctive relief “would” not restrain, as opposed to “does” not restrain the Respondents from using the Property in accordance with any future approval granted pursuant to the Planning Act.
[63] In my view, this portion of the Order recognizes that in the future, the Respondents may be granted approval to utilize the Property in a manner not currently permitted under the By-law, such as using it for a transportation depot, but that such use is presently prevented under the Order.
[64] The fact that the Respondents were waiting for approval from the Applicant to lift the holding provision at the time that they agreed to the consent Order does not change the manner in which the express language and overall purpose of the Order should be interpreted. If the Respondents wished to have the implementation of the Order delayed until the Applicant lifted the holding provision, the Respondents ought to have specifically negotiated that language in the Order. This was not done. Instead, the Order provides timelines by which the specific items had to be removed, subject to the two exceptions listed in paragraphs 11 and 12.
[65] Given the history of the communication between the parties leading up to the consent Order, I am satisfied that the Respondents knew, or ought to have known, that the Order included removing trucks, trailers, structures, etc. from the Property by specific deadlines, even if the use of the Property did not technically qualify as a “transportation depot”. Although there may have been an expectation on the part of the Respondents that the holding provision would be lifted by the deadlines in the Order, that did not come to pass. It has now been over two years since the Order was signed, and the holding provision still has not been lifted.
[66] It is also significant that in responding to the May 3, 2024 email from counsel for the Applicant, in which various breaches of the Order were identified, the Respondents did not object to, or provide a different interpretation of the Order. The fact that the Respondents did not reject this interpretation of the Order provides additional support for the Applicant’s position. The evidence before me suggests that it was only in response to this motion that the Respondents have proposed that the terms of the Order apply only to trucks, structures and equipment being used for an active transportation depot.
Conclusion regarding the correct interpretation of the Order
[67] I find that when this consent Order was signed, the parties agreed that the items described in paragraphs 8, 9 and 11 of the Order were to be removed by the deadlines set out in the Order. I further find that there was no additional agreement between the parties that only items associated with a transportation depot were to be removed. I make this finding having considered the express language used in the Order, the overall purpose of the Order, and the broader context of the dealings between the parties leading up to the time of the Order, and their intentions in mutually agreeing to this consent Order.
[68] The main purpose of the Order was to ensure that the Respondents are running their business in compliance with the relevant by-law. Paragraph 6(a) of the Order prevents the Respondents from using the Property as a transportation depot, and also prevents the Respondents from keeping structures, trucks, trailers and other equipment that are a component of that use on the Property. Paragraphs 8, 9 and 11 provide greater clarity as to the specific identity of the items to be removed, subject to the exception of the pre-existing garage and dwelling, identified in paragraphs 11 and 12 of the Order. There is no language in those paragraphs specifying that only items related to a transportation depot shall be removed.
Have the Respondents complied with the Order?
[69] As the holding provision has not been lifted, the Order requires the removal of all structures, trucks, trailers and associated equipment from the Property, regardless of their purpose, except for the two buildings exempted in paragraphs 11 and 12 of the order. The Respondents do not dispute that there are presently five stationary trailers on the Property, along with light standards, a fuel tank, a weigh scale, etc., and that up to 20 trucks per day still travel to the Property, and are maintained on the Property. I therefore conclude that the Respondents remain in breach of paragraphs 8, 9 and 11 of the Order.
[70] In the event that I am incorrect in my interpretation of the Order, and the Order mandates that only items associated with a transportation depot must be removed from the Property, I find that the attendance of trucks and maintenance of trucks is a use of the Property associated with a transportation depot. I further find that the presence of a weigh scale, fuel tank, and trailer storing parts for trucks are a use of the Property associated with a transportation depot.
[71] The Applicant provides a photograph of what appears to be a person performing maintenance on a tractor trailer on the Property. The Respondents deny that any repairs are being conducted on the Property, but do not dispute that maintenance of the tractor trailers is being conducted on the Property. I was not given any evidence to distinguish between the words “repairs,” “servicing,” and “maintenance,” but I note that the definition of a transportation depot under the by-law uses the word “servicing,” which I find incorporates maintenance or repairs.
[72] Accordingly, even if I accepted the Respondents’ interpretation of the Order, I conclude that the Respondents are in breach of the Order.
Remedy for the Applicant
[73] The Respondents must comply with the terms of the January 18, 2023 Order, as interpreted in this ruling, within 60 days of the date of this ruling.
[74] If the Respondents fail to remove the structures, trailers, and equipment from the Property within 60 days pursuant to paragraphs 8, 9, 11 and 12 of the Order, the Applicant may proceed to remove the items at the cost of the Respondents, pursuant to Rule 60.11(9) of the Rules of Civil Procedure.
Conclusion
[75] I note that the Respondents’ Subdivision Application may ultimately be approved by the Applicant, resulting in the holding provision being lifted. However, until that occurs, it is not in the public interest for the Respondents to continue using the Property in contravention of the by-law, and in contravention of the January 18, 2023 court Order.
[76] The Respondents must remove the five stationary trailers, and all other structures and equipment from the Property as set out in paragraphs 8, 9 and 11 of the January 18, 2023 Order, within 60 days of the date of this Order.
[77] The following structures may remain on the Property as per the terms of the January 18, 2023 Order:
i) The garage that pre-dates 2015, but all additions to the garage made in 2015 or later may be removed;
ii) The dwelling on the Property which is currently used as an office; and
iii) Fencing on the Property located adjacent to Mayfield Road, or delineating the boundaries of the Property.
[78] There are to be no additional trucks located on the Property for maintenance or otherwise, effective immediately.
[79] In the event that the Respondents do not remove the items identified in paragraph 76 within 60 days of the date of this ruling, the Applicant may remove the identified items at the expense of the Respondents.
Costs
[80] The parties are encouraged to agree upon costs. In the event that the parties are unable to resolve the issue of costs, the Applicant may prepare a cost submission by March 26, 2025. The Respondents may prepare a responding cost submission by April 2, 2025. All submissions shall be double-spaced, and no longer than three pages, not including Bills of Costs or Offers to Settle. If I do not receive cost submissions by the above deadlines, I make no order as to costs.
Released: March 19, 2025
Wilkinson