



COURT OF APPEAL FOR ONTARIO

CITATION: Whitchurch-Stouffville (Town) v. Bolender, 2015
    ONCA 533

DATE: 20150716

DOCKET: C58941

Hoy A.C.J.O., van Rensburg and Brown JJ.A.

BETWEEN

The Corporation of the Town of
    Whitchurch-Stouffville

Applicant/Respondent

and

Paul Bolender

Respondent/Appellant

Al Burton and David Germain, for the appellant

John R. Hart, for the respondent

Heard: January 23, 2015

On appeal from the order of Justice Hugh K. OConnell of
    the Superior Court of Justice, dated May 20, 2014.

van Rensburg J.A.:

Introduction

[1]

The appellant appeals from an order enjoining the use of his properties
    in contravention of the respondents site alteration and zoning by-laws.

[2]

The appeal concerns activities at two contiguous properties (referred to
    as the North Property and South Property) in the Town of
    Whitchurch-Stouffville. The respondent Town claims that the appellant is
    operating an illegal waste disposal and waste transfer (which I will refer to
    collectively as waste disposal) business on both properties. As a result of
    complaints that fill was being illegally dumped at the properties, the Town
    brought an application under s. 440 of the
Municipal Act, 2001
, S.O. 2001,
    c. 25, as amended (the Act), to enjoin the appellants contravention of its
    zoning and site alteration (fill and dumping) by-laws.

[3]

The appellant contends that he has operated a peat moss extraction and
    triple mix soil preparation (peat moss or triple mix) business on the South
    Property on a continuous and uninterrupted basis from the time of its
    acquisition in 1971 to the present, and that the same business has been
    operated on the North Property since its acquisition in 1977. Triple mix soil
    is a combination of top soil, peat moss and compost, which is generally used
    for gardening purposes. The appellant argues that his use of the properties is
    either a permitted agricultural use or is a legal non-conforming use pursuant
    to s. 34(9) of the
Planning Act
, R.S.O. 1990, c. P.13. Hence, there has
    been no contravention of the zoning by-law. The appellant also contends that
    the fill activities at the site are part of its operations and not in
    contravention of the site alteration by-law.

[4]

The application judge found that the appellant was carrying on a waste
    disposal business and not a peat moss or triple mix business. He granted an
    order in relation to the North Property restraining the appellant from
    contravening the site alteration by-law by certain specified activities,
    including dumping fill, removing topsoil or otherwise altering the grade of
    land without a permit, and in relation to both properties, restraining
    contravention of the relevant zoning by-law.

[5]

The appellant seeks to set aside this order. He asks for a declaration
    that his use of the properties for his peat moss and triple mix business does
    not contravene the Towns zoning or site alteration by-laws. In the
    alternative, the appellant seeks an order converting the application into an
    action and directing a trial before a different judge.

[6]

For the reasons that follow, I would allow the appeal. In brief, I find
    that the application judge erred in concluding, on the record before him, that
    the appellant was operating only a waste disposal business and was not
    operating a peat moss or triple mix business. Further, the order restraining
    the appellant from violating the site alteration by-law was not supported by
    any findings, and cannot stand. The appropriate disposition, in the
    circumstances of this case, is to direct a trial of the various issues.

The Application

[7]

The Towns injunction application was pursuant to s. 440 of the Act,
    which provides as follows:

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

[8]

Unlike s. 431 of the Act, which provides for a court to make an order
    prohibiting continued contravention of a by-law where a conviction has been
    entered, s. 440 does not require a prosecution to have taken place. Indeed, in
    the events leading to these proceedings, the Town commenced a prosecution
    against the appellant for violation of its site alteration by-law, but later
    withdrew the charges.

[9]

The injunction application was determined on affidavit evidence. There
    were no cross-examinations, and no one requested before or at the hearing of
    the application that the application be converted to an action or that a trial
    of any issue be directed.

[10]

The
    Town relied on affidavits from three of its employees: two municipal law
    enforcement officers (Teresa Hector and Stephen Small), who investigated
    alleged by-law infractions at the properties, and a planner (Alan Drozd)
[1]
.
    The appellant relied on the affidavit of his son, John Bolender, who had been
    involved for many years in the family business at the properties, as well as
    the affidavits of a customer, two truck drivers and a business competitor.

The Evidence

[11]

The
    Towns evidence consisted largely of the observations of the two law
    enforcement officers who attended at the properties in 2013 to investigate
    complaints of a composting odour, trucks attending and dumping materials and
    the discharge of effluent from Hydrovac trucks. According to the Town, Hydrovac
    trucks transport water and material obtained from hydro excavation, a process
    where pressurized water is used to break up soil, and soil and water are
    vacuumed out, exposing areas for repair or inspection. Mr. Small took pictures
    that showed Hydrovac and dump trucks entering and leaving the properties, ponds
    filled with sludge-like materials, and piles of soil and what appear to be broken
    brick, concrete and other materials. Ms. Hector observed the Hydrovac trucks
    depositing sludge-like materials into two pits, and later noted that topsoil
    had been placed over a dried out sludge pit. Ms. Hector expressed the opinion
    that there was no evidence of any triple mix business at the site. She also
    referred to a prosecution of the appellants son by the Ministry of the
    Environment (the MOE) that had led to a guilty plea and conviction for operating
    an unapproved waste disposal site at the South Property contrary to the
Environmental
    Protection Act,
R.S.O. 1990, c. E.19 (EPA). The charge was laid after
    truckloads of food waste and grey waste were dumped at the site by a third
    party in 2006. According to Ms. Hector, that use was discontinued thereafter
    as it was not being conducted in accordance with the law.

[12]

The
    appellants evidence was to the effect that he has carried out a peat moss and triple
    mix business since 1971 at the South Property and since 1977 at the North
    Property. The appellants son described the operations for harvesting peat moss
    and preparing triple mix, and explained the use of dump trucks to transport raw
    materials and finished product, and fill materials, at the site, and he stated
    that the Hydrovac trucks transport gravel-type materials used in the
    operations. A business competitor spoke of his observations of the peat
    harvesting business and use of fill to support operations, machinery and
    vehicles at the site and in his own business; two truck operators described how
    they had attended at the appellants properties since 1970 or 1971 to pick up
    peat and triple mix, and their observations of peat, topsoil and triple mix
    processing activities at the properties continually since that time; and a customer
    of the appellant deposed that he had purchased topsoil and triple mix from the
    appellant since 1975 and that he has personally witnessed peat and triple mix
    being trucked, using dump tracks, from the appellants property, continually
    since the early 1970s.

The Decision of the Application Judge

[13]

The
    application judge noted that, in order to grant the injunction sought by the
    Town, he had to be satisfied on a balance of probabilities that the Town had
    made out its case for the relief sought in respect of each property. He concluded
    that there was currently a waste disposal business in operation at the
    properties. He rejected entirely the evidence that there was a peat moss and triple
    mix business. He relied on the Towns photos which showed construction and
    other waste, and that, according to the application judge, do not depict any
    evidence of a peat moss or triple mix enterprise (para. 65) and the statement
    of Ms. Hector that at no time during her attendances at either property
    had she observed a triple mix soil or gardening operation, and that she had personally
    observed Hydrovac trucks dumping sludge-like materials (para. 66). The
    application judge rejected the appellants affidavit evidence in favour of the
    objective evidence of attendances by [the enforcement officers], inclusive of the
    pictures taken (para. 88).

[14]

The
    application judge rejected the appellants evidence that the Hydrovac trucks
    transported gravel-type materials used in the operations, noting that that
    evidence could not stand the test of veracity when considered against the
    evidence of Ms. Hector and the pictorial evidence presented by Mr. Small
    (para. 93).

[15]

Finally,
    the application judge relied on the fact that no business records had been
    produced by the appellant to verify what he said about the type of business he
    was carrying on (para. 97).

[16]

The
    application judge concluded that the properties were being used for waste
    disposal, and not for peat moss or triple mix production. While this was
    determinative of the application (as no one claimed that waste disposal was a
    permitted use), the application judge went on to find that, if there had been
    an historical peat moss or triple mix business at the South Property, this use
    had been fractured in 2006, at the time of the waste dumping that led to the
    EPA charges (para. 109). He found it unnecessary to determine whether all or
    any part of the appellants operations would fall within the scope of the
    zoning by-law as permitted agricultural operations (para. 111).

Issues on Appeal

[17]

There
    are two main issues on appeal: (1) whether the application judge erred in his
    approach to and evaluation of the evidence respecting the use of the properties,
    and if so, whether the application ought to be converted to an action or a
    trial of certain issues should be directed; and (2) whether there were findings
    to support the application judges order restraining contravention of the site
    alteration by-law.

[18]

I
    would answer the two parts of the first question in the affirmative, and the second
    question in the negative. As these grounds are sufficient to dispose of the
    appeal, I do not propose to address the other issues raised by the appellant regarding
    the proper test for determining whether a legal non-conforming use has been
    established, and whether, once a by-law breach has been proven, a court can
    refuse an injunction under s. 440 of the Act.

Analysis

1.

The application
    judge erred in his approach to and evaluation of the evidence about the use of
    the properties

[19]

In
    order to obtain an injunction to restrain the violation of its zoning by-law,
    it was incumbent on the Town to establish that the appellant was in breach of the
    by-law.

[20]

In
    my view, the application judge erred, on the record before him, in concluding
    that the appellant was not carrying on a peat moss or triple mix business at
    the properties, and therefore that the zoning by-law had been contravened. This
    conclusion was based on a misapprehension of the evidence, which tainted his
    analysis. There were three fundamental problems with the application judge's
    approach to and evaluation of the evidence.

[21]

First, the application judge conducted his analysis on the basis
    that the Towns evidence was entirely and exclusively supportive of the Towns
    position that the appellants properties were being used for waste disposal,
    and that the appellants evidence was entirely to the contrary. The application
    judge then resolved the principal issue in the application by rejecting the
    appellant's evidence and accepting that of the Town.

[22]

The
    application judge found that John Bolenders evidence regarding the use of
    Hydrovac trucks [could not] stand the test of veracity when considered against
    the evidence of Ms. Hector and the pictorial evidence presented by Mr. Small
    (para. 92), and that Ms. Hectors evidence regarding the sludge pits and
    Hydrovac trucks [could not] be reconciled with the content of the affidavit of
    Mr. John Bolender (para. 99).

[23]

The
    Towns evidence, however, was not
exclusively
supportive of the
    conclusion that the properties were being used for waste disposal. Nor was John
    Bolenders evidence inconsistent with what was depicted in the photos and
    observations of the law enforcement officers. Rather, the photos - that were
    described as objective and relied on by the application judge as undeniable
    proof of waste disposal activities  were largely consistent with the
    appellants evidence. The photos depicted Hydrovac trucks, dump trucks, and
    construction and other debris at the site. The appellants evidence explained
    how such equipment and materials are used in the peat moss and triple mix
    business.

[24]

Moreover,
    the appellants evidence about the historical use of the properties was
    supported by aspects of the Towns own evidence: that, according to the Towns
    records, [the appellant] has asserted that such use has always been a triple
    mix soil operation, and the agreed statement of facts from the MOE prosecution
    that stated that a peat moss extraction and composting business operated at the
    site.

[25]

Accordingly,
    the appellants evidence and the Towns evidence were not entirely at odds.
    Rather, significant aspects of the Towns evidence revealed circumstances
    consistent with both a waste disposal business and a peat moss and triple mix
    business.

[26]

Secondly,
    the application judge erred in resolving contradictions in the evidence by characterizing
    the Towns evidence as objective, objectively assembled and independent
    verification, and implicitly finding that the appellants evidence was not
    objective and independent. In rejecting the appellants evidence, the
    application judge noted that although [the affiants] attest to personally
    witnessing peat and triple mix operations over the decades, their affidavits
    have to be considered in light of the objective evidence of the attendances by
    Ms. Hector and Mr. Small, inclusive of the pictures taken (para. 88). However,
    all five of the affidavits from the appellants witnesses offered personal
    observations from their direct dealings with the appellants business over a
    number of years, and four of the affiants appeared to be arms-length. The
    Towns evidence, in the form of affidavits from its employees, was no more
    objective and independent than the evidence offered by the appellant, especially
    given the Towns decision not to cross-examine the appellants affiants.

[27]

Thirdly,
    the application judge appears to have taken into account irrelevant
    considerations in evaluating whether the appellants land use contravened the
    Towns zoning by-law. While the application judge did not make any specific
    findings of violations of provincial environmental laws (which was outside the
    scope of the application, and the Towns enforcement jurisdiction), he appears to
    have been influenced by the many references in the Towns materials to alleged
    EPA violations (see references at paras. 67 and 89-91). The issue before the
    application judge, however, was not whether the appellant violated
    environmental laws administered by the MOE, but whether and in what respect the
    Towns by-laws were being contravened.

[28]

The
    evidence was that Hydrovac trucks were depositing material into sludge ponds
    on the properties. It was not suggested that the Hydrovac trucks contained
    waste materials similar to what had been dumped in 2006, but that they
    contained a mixture of soil and water (from hydro excavations) that the Town
    characterized as waste, and that John Bolender characterized as gravel- like
    material used in the peat moss and triple mix operations. It appears that the
    application judge concluded
from the fact that materials were being dumped
that the properties were being used for waste disposal purposes.

[29]

On
    the key issue of whether the appellant was using the properties in
    contravention of the Towns zoning by-law, the application judge was faced with
    a dispute over the significance of two pieces of evidence  the appellants
    dumping of debris on the properties and the discharge of materials from the
    Hydrovac trucks into sludge ponds. The Town contended such conduct established
    the appellant was conducting a waste disposal business on the properties,
    whereas the appellant took the position that the conduct formed part of the
    lawful businesses it ran on the properties. Instead of directing a testing of
    that evidence through the trial of an issue, the application judge attempted to
    resolve the conflicting positions, including disputes about the credibility of
    some of the affiants, solely on the written record, and I have described above
    the errors he made in that effort.

[30]

Although,
    in a proper case, it may be possible for an application judge when dealing with
    a s. 440 injunction, to resolve disputed material facts and issues of
    credibility on a written record, in
Newcastle Recycling Ltd. v. Clarington
    (Municipality),
[2005] O.J. No. 5344 (C.A.), this court emphasized the
    caution which an application judge must bring to such an exercise.  In the
    present case, the conflicting evidence presented by the parties about the past
    and current uses of the North and South Properties could not be resolved by
    reference to unambiguous, unequivocal documentary evidence  the photos of the sludge
    ponds raised as many questions about the use of the properties as they
    answered. Faced with such conflicting evidence on key issues in the written
    record, the application judge should have refused the relief sought by the
    respondent. The appropriate disposition at this stage is to direct the trial of
    the issues in the application.

2.

The
    application judge erred in restraining violations of the site alteration by-law
    without making the necessary factual findings

[31]

The
    application judge granted the injunctions in the specific terms requested by
    the Town, including an order restraining contravention of four specific
    provisions of the site alteration by-law at the North Property. Significant
    parts of the Towns evidence were directed to the alleged violation by the
    appellant of its site alteration by-law. Indeed, the investigation undertaken
    by the Town was with respect to the alleged fill activities at the properties
    undertaken without a permit. Unfortunately, however, the application judge
    restricted his factual findings to those in support of his conclusion that the
    properties were being used for waste disposal rather than peat moss and triple
    mix. He did not make any findings about the site alteration by-law, or where
    and in what respect the appellant had violated its specific terms. As such, the
    order enjoining violation of the site alteration by-law must be set aside.

Disposition

[32]

For
    these reasons, I would allow the appeal. I would set aside the order of the
    application judge and direct a trial of the issues before a different judge to
    determine whether the appellants use of the properties contravenes the Towns
    zoning by-law, whether with respect to the North Property the appellant is
    contravening the Towns site alteration by-law, and, if so, the scope and
    content of any injunctive relief to which the Town may be entitled.

Costs

[33]

I
    would award the appellant his costs of the appeal in the sum of $20,000,
    inclusive of disbursements and HST. With respect to the costs of the
    application, I would set aside the application judges costs order and reserve
    the costs of the entire application to the judge who hears the trial of the
    issues ordered.

Released: (KMvR) July 16, 2015

K. van Rensburg
    J.A.

I agree Alexandra
    Hoy A.C.J.O.

I agree David Brown
    J.A.





[1]
The planners evidence consisted of his professional planning opinions on the
    issues the application judge had to determine respecting the applicable zoning
    of the properties and whether the appellant was engaged in a permitted use or
    had established a legal non-conforming use. This evidence was not relied upon
    by the application judge in his decision, was not material to the question he
    determined as to the appellants use of the properties and accordingly will not
    be referenced in these reasons.


