



COURT OF APPEAL FOR ONTARIO

CITATION: Pickering (City) v. Slade, 2016 ONCA 133

DATE: 20160216

DOCKET: C60716

Simmons, van Rensburg and Roberts JJ.A.

BETWEEN

The
    Corporation of the City of Pickering and

Kyle
    Bentley as the Chief Building Official of the City of Pickering

Respondents

and

James Slade and Nancy Slade

Applicants/Appellants

James Slade and Nancy Slade, in person

N. Cameron Murkar, for the respondents

Heard and released orally: February 10, 2016

On appeal from the judgment of Justice H.K. OConnell of
    the Superior Court of Justice, dated March 10, 2015.

ENDORSEMENT

[1]

The appellants appeal from a judgment prohibiting them from depositing
    additional fill on their property; requiring them to remove deposited fill such
    that the grade and elevation of their property complies with a drainage and
    grading drawing approved when their building permit was issued; and granting
    certain ancillary relief.

[2]

The appellants raise multiple grounds of appeal challenging the
    procedures adopted in hearing the application, the timeliness of the
    application, the interpretation of the bylaw underpinning the application and
    the application of the bylaw in the face of the
Farming and Food Production
    Protection Act, 1998
, S.O. 1998, c. 1.  They also seek to file fresh
    evidence on appeal.

[3]

We see no merit in this appeal.  The appellants have not established
    procedural unfairness or violation of an applicable limitation period.  The
    bylaw underpinning the Citys injunction application prohibits the deposit of
    fill without a permit.  Fill is broadly defined and includes soil.  We see no
    basis on which to interfere with the application judges conclusions that the
    appellants have deposited, or permitted the deposit of, fill beyond that
    allowed under their building permit and that, as of the date of the hearing,
    the appellants operations did not resemble a normal farming operation that
    might have engaged any applicable exemption.

[4]

Further, with respect to the appellants assertion that they intended to
    commence farming operations, as the application judge noted, as of the date of
    the hearing, there was no evidence that had been done.  Nor had the appellants
    applied for an order under s. 6(2) of the
Farming and Food Production
    Protection Act
.  The mandatory order granted by the application judge is
    authorized under s. 38 of the
Building Code Act, 1992
, S.O. 1992,
    c. 23.

[5]

Based on the record before us, we are not satisfied the application
    judge erred in not addressing any minor amount of fill that may have been
    deposited on the appellants land by the City.

[6]

The appellants application to file fresh evidence is dismissed.  Apart from
    any other considerations, we see no possibility that the evidence adduced would
    have affected the decision under appeal.

[7]

The appeal is therefore dismissed.

[8]

Following questions from the panel during the oral hearing, the City
    withdrew its request that we make an order under s. 140 of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43.

[9]

Costs of the appeal are to the respondent on a partial indemnity scale
    fixed in the amount of $7,500 inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.


