2018 NLSC 127, 2018 NLSC 127

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Janes v. Embree (Town) , 2018 NLSC 127 Date : June 8, 2018 Docket : 201501G3741 Between: NELSON JANES First Plaintiff/ first defendant by counterclaim And: Lori Ann Janes Second Plaintiff/ second defendant by counterclaim And: THE TOWN COUNCIL OF EMBREE First Defendant/ plaintiff by counterclaim And: Don Bennett Second Defendant And: Harold Nippard Third Defendant And: Dennis Fudge Contracting Limited Fourth Defendant

And: Robert Fudge Fifth Defendant And: The Town Council of Embree First Third Party And: Don Bennett Second Third Party And: Harold Nippard Third Third Party Before: Justice Gillian D. Butler Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: April 26 and 27, 2018

Summary:

Summary Trial addressing four questions on the Plaintiffs’ claim for trespass/ unlawful entry. Held: The Town had jurisdiction to require removal of debris under

section 178 of the Municipalities Act, 1999 and make an Order for repair and/or removal of dilapidated buildings under

section 404 of the Municipalities Act, 1999 . The Order was validly made and served under

section 404, but the Town’s failure to advise of the right to appeal invalidated the Order. The Plaintiffs lost the opportunity of an earlier appeal date and the benefit of a stay of the Order during the relevant period. In light of the invalidity of the Order, the Town could not recover from Mr. Janes the costs it incurred for demolition and removal of the building. The Fourth and Fifth Defendants acted as agents for the First Defendant and the First Defendant is vicariously liable for any damages suffered by Nelson Janes as a result of their actions.

Damages for the unlawful entry (restricted to demolition and removal of the building) were to be assessed at a later date. Appearances: Jean V. Dawe, Q.C. Appearing on behalf of the Plaintiffs Erin E. Best Appearing on behalf of the First, Second

and Third Defendants John B. French Appearing on behalf of the Fourth and Fifth Defendants Erin E. Best Appearing on behalf of the Third Party Authorities Cited: CASES CONSIDERED: Trimart Investments Ltd. v. Gander (Town), 2015 NLCA 32; M & D Farm Ltd. v. Manitoba AgriculturalCredit Corp., [1999] 2 S.C.R. 96; Janzen v. Mountain View (County) No. 17 (1997), (AB KB), 9 W.W.R. 540, 72A.C.W.S. (3d) 1257 (Alta. Q.B.); Costello v. Calgary (City), (SCC), [1983] 1 S.C.R. 14; Gerry’s Food Mart Ltd. v. St.John’s (City) (1992), (NL CA), 104 Nfld. & P.E.I.R. 294, 37 A.C.W.S. (3d) 877 (Nfld. S.C. (C.A.)); Dunville (Town)v.

Power (1977), 13 Nfld. & P.E.I.R. 361, 29 A.P.R. 361 (Nfld. S.C. (C.A.)); Vancouver Island Railway,

An Act Respecting, Re, (SCC), [1994] 2 S.C.R. 41; Royal Newfoundland Constabulary Public Complaints Commission v. McGrath, 2002 NLCA 74 STATUTES CONSIDERED: Municipalities Act, 1999, S.N.L. 1999, c. M-24; Town of Embree Order, N.L.R. 152/96; Urban andRural Planning Act, 2000, S.N.L. 2000, c. U-8; Development Regulations, N.L.R. 3/01 TEXTS CONSIDERED: Philip H. Osborne, The Law of Torts, 5th ed. (Toronto: Irwin Law Inc., 2015) REASONS FOR JUDGMENT Butler, J.: INTRODUCTION [1] Nelson Janes is 70 years of age and has resided in the community of Embree all his life.

He was a heavy equipment operatorby trade but approximately 26 years ago he decided to venture into operations as a wholesale lobster salesperson and for this purposeincorporated Embree Fisheries Inc. on May 20, 1992. [2] Four years later, on February 20, 1996, the Provincial Crown issued a 50-year lease to Embree Fisheries Inc. for 1.8 hectaresof land “covered by water” in the Bay of Exploits (the “Site”). [3] The evidence supports the conclusion that Mr.

Janes (acting on his own or as Embree Fisheries Inc.) developed the leasedland (covered in water) with cribbage, concrete, stone and gravel and thereby created what Mr. Janes himself described as a “wharf”,although a more apt description might be a quay. On this Site, he constructed one, two-storey building (with a concrete foundation) anda smaller wooden structure. From this Site, he originally attended to the sole purpose permitted under the terms of the Lease being“lobster holding pens”. The Site is known as 120 Main Road, Embree. [4] Over time, however (Mr.

Janes recollected between 2000 and 2002), these operations ceased and the Site was more oftenused for the storage of his boat, tractor trailer, forklift, trailers and cube van, in addition to various pieces of machinery. The photographssuggest that vehicle repairs were undertaken on the Site.

His daughter, Lori Ann Janes, stored some personal effects in the buildings onthe Site. [5] Since the Site is on the Main Road through Embree and is waterfront property, the condition of the buildings and the Siteitself became the subject of complaints to the Town. [6] In March and May of 2010 and also in June of 2011, the Town of Embree corresponded with Mr. Janes asking that he removedebris from and repair structures on the Site which he admittedly occupied. [7] Some time prior to August 8, 2012, at the request of Central Regional Lands Office, Department of Environment, Service NL

conducted an inspection of the Site and met with Mr. Janes. On August 8, 2012, Service NL reported to the Town with respect to its inspection. [ 8 ] Following a decision of Council, on April 10, 2013, the Town Clerk issued a Notice to Mr. Janes of the Town’s Order pursuant to

section 404 of the Municipalities Act, 1999 , S.N.L. 1999, c. M-24, requiring that he remove the debris and remove or repair the buildings. The Notice to Mr. Janes did not reference a right of appeal, but did advise Mr. Janes that on non-compliance, the Town reserved the right to take the action it considered necessary and any cost and expense incurred would be recovered against Mr. Janes. [ 9 ] On April 29 and 30, 2013, Mr.

Janes arranged for three car wrecks on the Site to be removed under his direction and at his expense. [ 10 ] Utilizing the services of Dennis Fudge Contracting Limited, the Town arranged for demolition and removal of what it considered to be the remaining debris on the Site on July 19, 2013. The demolition was halted as a result of Mr. Janes’ engagement of a solicitor who delivered letters to the Town and the contractor. The Site remained in the condition left by the work of the excavator, partitioned off with an orange safety fence from July 19, 2013 to November 25, 2013. [ 11 ] On July 22, 2013, counsel for Mr.

Janes corresponded with the Town expressing the view that the Town’s April 10, 2013 Order was invalid and all actions taken under the Order were unlawful because of the lack of notice of the right of appeal. [ 12 ] On August 8, 2013, the Town issued another notice to Mr. Janes with the right of appeal confirmed. This was served on Mr. Janes on August 14, 2013, and on August 28, 2013, Mr. Janes appealed the August 8, 2013 Order. [ 13 ] On October 23, 2013, the Town gave the Plaintiffs notice that they could remove whatever they wanted from the Site but there was no response.

In November 2013, the Town directed Dennis Fudge Contracting Limited to remove the remainder of the debris. [ 14 ] Mr. Janes’ appeal to the Regional Appeal Board was heard on September 30, 2014 and by Order on October 6, 2014, the Board confirmed the right of the Town to have made the August 2013 Order. Mr. Janes did not appeal. [ 15 ] On July 17, 2015 the Plaintiffs issued their Statement of Claim claiming unlawful entry/trespass against the five Defendants and on October 3, 2017, following Application for

Summary Trial, I ordered that the threshold test had been met on four issues only. [ 16 ] The hearing of the

Summary Trial on these four issues was held April 26 and 27, 2018 and my judgment was reserved. [ 17 ] The four issues which I found appropriate for

Summary Trial are addressed in the Analysis which follows. ANALYSIS 1. Does the Plaintiffs’ property fall within the jurisdiction of the Town whose boundaries are defined in section 2(2) of the Municipalities Act, 1999 and the Town of Embree Order, N.L.R. 152/96? [ 18 ] The onus is on the Town of Embree to establish that it had jurisdiction to act as it did and to make the Orders that are challenged in this litigation. [ 19 ] I have previously referenced the Provincial Crown Lease.

The land “covered by water” in the Bay of Exploits was described therein as follows: Beginning at a point, said point being a capped iron pin placed at ordinary high water mark … Thence running through the waters of Bay of Exploits South … East, one hundred fifty decimal zero zero metres … And thence South …West one hundred twenty decimal zero zero metres to a point; And thence North… West, one hundred fifty decimal zero zero metres to a point; Thence running by the aforesaid ordinary high water mark North… East, one hundred twenty decimal zero zero metres, more or less, to the point of beginning; [ 20 ] The sketch attached to

Schedule B to the Crown Lease confirms that the capped iron pins were placed on the east, bay side, of the main road through Embree. [ 21 ] For jurisdiction, counsel for the Town relies firstly on the provisions of the Town of Embree Order , Regulation 152/96 which I find establishes the boundaries of the Town (in relation to the Site) as running from the shoreline/high water mark of the Bay of Exploits.

In addition, counsel relies on section 2(2) of the Municipalities Act, 1999 , which provides that “All docks, quays, wharves and structures touching the boundaries of a municipality … shall be considered to be within and to be part of the municipality”. [ 22 ] Despite these legislative provisions, Mr. Janes’ own description of the Site as a “wharf” and the terms of the Crown Lease to Embree Fisheries Inc., counsel for the Plaintiffs objects to the Town’s jurisdiction to make the Orders on April 10, 2013 and August 14,

2013. She asserts that the Town has not proven that the Site is “touching the boundaries of” the municipality. [ 23 ] I find no merit whatsoever in the argument presented by Plaintiffs’ counsel in this respect. The Crown Lease upon which Nelson Janes relies to establish his right to occupy the Site is clear and unequivocal in this regard. [ 24 ] The Site is a parcel of land consisting of 1.80 hectares (originally under water) and running from a point being “ordinary high water mark” which point matches the language of Regulation 152/96 defining the boundaries of the Town of Embree. [ 25 ] Since Mr.

Janes does not dispute that what he developed was a “wharf” and since the Lease confirms that the West boundary of the Site is the high water mark, it follows that the wharf touches the boundaries of the Town. The Town has therefore established that it has jurisdiction over the Site. 2. Was the April 10, 2013 Notice validly given pursuant to

section 404 of the Municipalities Act, 1999 ? The Condition of the Site [ 26 ] Mr. Janes acknowledges that the Site was not used for the lobster pools after 2002. It was also established that Embree Fisheries Inc. was involuntarily dissolved on February 22, 2006. No proof of ownership of the Site was established at the

Summary Trial but it is not disputed that Nelson Janes was in occupation. [ 27 ] The photographs entered as attachments to Lori Janes’ Affidavit, and those entered through Harold Nippard as Exhibit HN 1 are of great assistance to assessing the condition of the Site that Mr. Janes occupied as of July 19, 2013 and August 2013. [ 28 ] Harold Nippard was, at the relevant time, Deputy Mayor of Embree and his eight photographs of the Site were taken on July 19, 2013. These photographs reflect a large wooden boat in need of repair, propped up on what had formerly been a metal trailer.

Next to the large boat, there was a small, hand-made, rusty trailer, as well as several lengths of steel bars. [ 29 ] Laid against the side of a very dilapidated smaller building, sided only with particle board and missing at least one door, there was dumped, several lengths of coil, more steel, a tire, piping and miscellaneous supplies. Between the smaller building and the larger two-storey building, the photos depict several sheets of steel laid on the ground and leading to a slipway.

In this vicinity there was also discarded at least three tires, a drum and more loose metal. [ 30 ] On the opposite side of the two-storey building (which was in extremely poor shape itself with a set of wooden stairs without a railing), the photos depict a rusty forklift. The two utility poles on either side of the two-storey building had boxes of different fashion attached.

The Deputy Mayor testified that the wires were live and that the box servicing the electricity was not secured, thus posing an obvious and serious danger to the public. [ 31 ] Behind the larger two-storey building, his photos depict at least six discarded metal drums or tanks as well as a chair and an indistinguishable piece of equipment. Further, towards the slipway, the photographs reflect a large Peterbilt tractor trailer cab, partially dismantled and appearing to be in the process of repair.

In photograph number 8, the Deputy Mayor captured a pile of cribbage metal and other “debris” littered with garbage. [ 32 ] The photos taken by Harold Nippard on July 19, 2013 corroborated the August 2012 description of the Site given by Service NL. I conclude that as of July 19, 2013, the Site remained poorly maintained, littered with debris of various forms and two dilapidated structures existed. [ 33 ] Although she did not testify, some of the photographs attached to Lori Ann Janes’ Affidavit were dated electronically by the camera or cell phone that had been used.

The relevant photos bear a date of August 29, 2013 and therefore I accept that they depict what the Site looked like after the demolition of the smaller building by the contractor on the Town’s direction on July 19, 2013. [ 34 ] I accept that a large pile of debris was created by the destruction of the smaller building and that the small utility trailer is reflected in the photos turned over on its side. However, Ms.

Janes’ photos also reflect the very poor state of the two-storey building, as well as the nature of the debris which had been in several locations on the Site and which was now in a pile as a result of the excavator used by Dennis Fudge Contracting Limited. [ 35 ] Ms. Janes’ photographs therefore largely corroborate the Town’s position that as of July 19, 2013, there were two buildings on the Site in a dilapidated state and the Site was littered with discarded debris of various forms.

The Town’s Correspondence and Orders [ 36 ] The letters sent by The Town of Embree to Nelson Janes in March 2010 and May 2010 stemmed from the condition of the Site. The first of these dated March 31, 2010 referenced it as “unsightly” and politely asked as a Council, “if you could do a bit of cleaning up”. [ 37 ] The next correspondence on May 17, 2010 followed up on this polite request, referenced that the Council had received many more complaints respecting the condition of the Site and formally gave Mr. Janes 30 days to have the Site cleaned up. [ 38 ] This letter also advised Mr.

Janes that Council did have jurisdiction to make an Order that he clean up the property failing which the Town would clean the property and forward him the invoice. [ 39 ] On June 8, 2011, the Town of Embree wrote Mr. Janes a third letter, this time addressing three of his properties (including 120

Main Street) and formally gave him 14 days from the date of the letter to put the properties in order. It specified the removal and/or disposal of all derelict equipment, parts and vehicles to a proper disposal site, failing which Council would take measures to see that action be taken to have the debris removed. [ 40 ] Despite the three letters, Mr. Janes did not take any remedial action to address the condition of the Site. [ 41 ] Sometime prior to August 8, 2012, Service NL conducted an inspection of the Site and met with Mr. Janes.

Their report to the Mayor of the Town of Embree dated August 8, 2012 read in part as follows: …The property was found to be littered with several vehicle wrecks, scrap metal, a small shed in disrepair and what appeared to be minor surface staining consistent with this type of operation. Mr. Janes advised that he is in the process of removing the vehicles and scrap metal to a local scarp yard and will have the small shed and any surface staining removed as soon as possible.

Since there were no major environmental emergencies identified at this site this is a matter that would be best dealt with by the Town under provisions of the Municipalities Act. [ 42 ] The same letter advised the Town of Embree that “Should Mr. Janes not comply with a request from the Town to remediate the site, the Municipalities Act, 1999 provides the Town with the authority to deal with such issues.” In particular, it cited

section 178 which I will address later herein. [ 43 ] It is not disputed that the Town Council met and determined that Mr. Janes should be ordered to remediate the site. The Notice/Order pursuant to

section 404 of the Municipalities Act, 1999 was worded as follows: 1. To remove from the Property all of the debris situate on the Property and without limiting the generality of the foregoing, the removal of car wrecks, a tractor truck, scrap metal, a forklift, and a cabin cruiser type boat and trailer. 2. To remove or to repair to a suitable standard all buildings situate on the Property. Events After April 10, 2013 [ 44 ] Mr. Janes acknowledges receipt of this Order and testified that within the same month he did have three car wrecks removed to a local scrap yard.

Although he felt that he had done some other clean-up on the Site, there was no proof provided. [ 45 ] The Town of Embree did not take any specific steps until July 19, 2013 when it engaged Dennis Fudge Contracting Limited to attend at the Site and conduct the removal of the debris and demolition of the building referenced in the Order. [ 46 ] During the demolition process, Mr. Janes attended the Site and tossed a copy of correspondence from his solicitor into the excavator being operated by Robert Fudge. Ultimately, the RCMP were contacted and attended.

By this time I am satisfied that the contractor had successfully loaded the Peterbilt tractor trailer, the cube van and various lengths of metal onto the flatbed truck and had demolished the smaller building. The contractor had refused to touch the larger building because the electrical supply was live.

Whatever was loaded onto the contractor’s flatbed, tandem dump truck and semi-dump truck were permitted to be removed to the dump and/or Manuels’ Scrap Yard and the Site was secured with a plastic orange “fence”. [ 47 ] It is unclear whether the activities on the Site came to a halt on July 19, 2013 because of direction from the RCMP or whether the exercise of pure common sense by one of the participants suggested that perhaps the demolition should stop while the matter was sorted out. In either case, it is clear that the work stopped as a direct result of the lawyer’s letter. [ 48 ] The separate letter that Ms.

Dawe, Q.C. had forwarded to the Town of Embree put it on notice that the Town had failed to comply with the statutory provisions governing it or was acting in an unlawful manner. While no details were provided at that time, on July 22, 2013, she clarified that the Town’s failure to notify Mr. Janes of his right to appeal (and to provide other information required pursuant to

section 5 of the Development Regulations , N.L.R. 3/01) invalidated the April 10, 2013 Order. [ 49 ] Also on July 22, 2013 the Council advised both Plaintiffs that they could remove all personal belongings on the Site by midnight and I am satisfied that Lori Ann Janes did so. [ 50 ] On August 8, 2013, the Town issued another Notice to Nelson Janes. This was also expressed to have been made under

section 404 of the Municipalities Act, 1999 and the accompanying letter advised that he had the right to appeal the Order within 14 days of the service or posting of the Order and explained how he would do so. [ 51 ] Unlike the April 10, 2013 Order, the August 8, 2013 Order did not reference any buildings, but instead required Nelson Janes to undertake the following remedial work to the Site: 1.

To remove from the Property all of the debris situate on the Property and without limiting the generality of the foregoing, the removal of car wrecks, a tractor truck, scrap metal, a forklift, and a cabin cruiser type boat and trailer. [ 52 ] Mr. Janes’ only response to this correspondence was to file an appeal with the Regional Appeal Board.

This confirmed that he was appealing only the August 14, 2013 Order and that his grounds included the fact that the Town had barricaded his property and thereby prohibited his access and that, as a result of the Town’s actions in July, there was no debris to be removed except that created by the excavator. The Transcript from the Regional Appeal Board hearing reflects that Mr. Janes’ counsel took the position that it was treating the April 10, 2013 Order as invalid and appealing only the August 14, 2013 Order (see pages 47 to 49). [ 53 ] While Mr.

Janes awaited his appeal hearing, the Town of Embree, on October 23, 2013 wrote him once again, this time asking if he would like to remove anything from the Site before the Town took the initiative to remove the debris itself. At the

Summary Trial,

Mr.

Janes testified that he had not been interested in removing anything. [ 54 ] The Town, again utilizing the services of Dennis Fudge Contracting Limited, subsequently attended to a clean-up of the Site but did not touch the two-storey building. [ 55 ] Photographs attached to Lori Ann Janes’ Affidavit, electronically dated December 2013, confirm that the Site was in an awful state as a result of the disrupted demolition, but two photographs electronically dated October 7 and 21, 2017 suggest that the Site’s condition was overall improved as a result of the activities of the Town through their agent, Dennis Fudge Contracting Limited.

Nevertheless, the two-storey building (which was not removed) remained in a very dilapidated condition. Relevant Legislative Provisions and Analysis [ 56 ] As our Court of Appeal confirmed in Trimart Investments Ltd. v. Gander (Town) , 2015 NLCA 32 , “the seminal case on the

interpretation of municipal legislation is United Taxi ” [1] in which the Supreme Court of Canada supported a broad and purposive approach consistent with the approach to statutory

interpretation generally. This requires “the words of

an Act… to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature” (paragraphs 6-8). [ 57 ] As to context, our Court of Appeal in Trimart reinforced the importance of considering the Part of the Municipalities Act, 1999 , under which the impugned action was taken (see paragraph 21) to assess the nature and character of the action (paragraph 36). [ 58 ]

Part VII of the Municipalities Act, 1999 , addresses “Services” performed by municipalities, including waste and sewer systems, highways, parking lot lighting, removal of vehicles from highways, sidewalks or bridges, recreational facilities and removal of waste.

Section 178 falls within

Part VII and addresses removal of waste: 178. A council may remove from real property solid waste, noxious substances and anything that poses a hazard to public health and safety or adversely effects the amenities of the surrounding property, and charge the owner or occupier of the real property for the costs of its collection and disposal. [ 59 ] I note that “waste material” is defined in another Part of the Municipalities Act, 1999 and I believe that the definition is helpful in understanding what, under the Act , is considered to be “waste”: 403.1 In this Part (j) "waste material" means (

i) refuse, garbage, rubbish, litter, scrap and discarded material, including tailings, offal, machinery, products, vehicles and other articles which are dumped, discarded, abandoned or otherwise disposed of, (ii) a material or thing that may be a danger to the health of human beings, animals, wild life or fish, or is of unsightly appearance, and (iii) a substance designated as waste material under the Environmental Protection Act. Removal of Waste [ 60 ] Relying on Trimart , I would assess the nature and character of the removal of waste from a property occupied by a person such as Mr. Janes, pursuant to

section 178 , as little different than the removal of a vehicle owned by a third person parked upon a public highway, sidewalk or bridge within the town and which interferes with traffic or constitutes a hindrance. [ 61 ] Unlike Orders made under

Part XV of the Municipalities Act, 1999 (Orders and Permits), exercising the Town’s authority for the control and management of Services under

Part VII of the Municipalities Act, 1999 , does not require notice to the third party affected and no right of appeal is provided by the Act . [ 62 ] Relying on

section 178 , I accept the Town’s submission that, notwithstanding the fact that the April 10, 2013 Order purported to be made pursuant to

section 404 of the Act , the Town of Embree nonetheless had the right to enter upon the Site for the purpose of removing anything that fell within the definition of “solid waste, noxious substances and anything that poses a hazard to public health or safety or adversely affects the amenities of the surrounding property” without notice to Mr. Janes.

The photos confirm that this would relate to everything depicted on the wharf (with the exception of the smaller of the two buildings) as these materials clearly adversely affected the amenities of the surrounding property or were a safety risk. [ 63 ] Thus, the work conducted on the Site in July 2013, (other than the demolition of the smaller building), as well as the work

completed in October 2013, were both lawfully carried out pursuant to

section 178 and no claim for trespass/unlawful entry arises from those activities by the Town. Demolition of the Building [ 64 ] Relative to the building that was demolished, in making the Order dated April 10, 2013, the Town relied on subsections 404(1) (

f) and (

l) of the Municipalities Act, 1999 which fall under

Part XV (Orders and Permits). For ease of reference, those submissions provide: 404.

(1) A council may make an order that … (

f) where a building is in a dilapidated state, or is, in the opinion of the council, unfit for human habitation, or another use for which it is then being used, or is a public nuisance, the owner or occupier is to pull down, remove, fill in or otherwise destroy the building and restore the site to its original state, or make the disposition or alteration of the building that the order directs; … (

l) that the owner or occupier of real property remove from that property, solid waste, noxious substances and substances or things which may be a hazard to public health and safety or which adversely affects surrounding properties. [ 65 ] Given the wording of paragraphs 404(

f) and (l), I am satisfied that the April 10, 2013, Order was appropriately made. As described above, the evidence disclosed that the buildings on the property were in a dilapidated state and that there was solid waste on the property which posed a hazard to public safety. [ 66 ] Following the making of an Order under section 404(1), subsection 404(2) requires that the person ordered to carry out an action be served with the Order. There is no question here that the municipality complied with this requirement, having provided Mr.

Janes with written notice of the Order, setting out a time limit for compliance (as is permitted pursuant to subsection 404(3)). Following Mr. Janes’ failure to comply, the work was commenced by the Town, pursuant to the authority granted to it under subsection 404(5). [ 67 ] As counsel for Mr. Janes’ correctly points out, however, there was also a legislative requirement to provide Mr. Janes with information in writing regarding his right of appeal at the time the Order was made. This requirement arises by virtue of the combined operation of section 408(1) of the Municipalities Act, 1999 ,

section 42 of the Urban and Rural Planning Act, 2000 , and

section 5 of the Development Regulations . The relevant portions of those provisions state, respectively (my emphasis added): 408.

(1) A person aggrieved by an order made under subsection 404(1) may, within 14 days of the service or posting of the order, appeal to the appropriate regional appeal board established under the Urban and Rural Planning Act, 2000 and the board may make an order with respect to the matter that appears just. … 42.

(1) A person or an association of persons aggrieved of a decision that, under the regulations, may be appealed, may appeal that decision to the appropriate board where the decision is with respect to … (

d) a decision permitted under this or another Act to be appealed to the board. … 5. Where an authority makes a decision that may be appealed under

section 42 of the Act, that authority shall , in writing, at the time of making that decision, notify the person to whom the decision applies of the (

a) persons right to appeal the decision to the board; (

b) time by which an appeal is to be made; (

c) right of other interested persons to appeal the decision; and (

d) manner of making an appeal and the address for the filing of the appeal.

[68] There is no dispute that Mr. Janes was not provided with the information required pursuant to

section 5 of the DevelopmentRegulations when he was given notice of the April 10, 2013 Order. [69] So the question then is: does non-compliance with the notice of the right of appeal result in the invalidity of the action takenpursuant to that Order, being the demolition and removal of the smaller building. Mandatory or Directory [70] Non-compliance with an imperative provision such as

section 5 of the Development Regulations raises the question of whetherit is mandatory or directory. As explained in M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 96, at paragraph44, non-compliance with a mandatory provision governing the exercise of some authority results in the automatic invalidity of the actiontaken whereas non-compliance with a directory provision may be cured in certain cases. In other words, while both mandatory anddirectory provisions are obligatory, they differ in the effect of their breach. [71] The Town relies on Janzen v.

Mountain View (County) No. 17 (1997), (AB KB), 9 W.W.R. 540, 72A.C.W.S. (3d) 1257 (Alta. Q.B.) in support of the principle that “mandatory provisions may be overlooked in certain circumstances” andthat not every non-compliance with a municipal statute should invalidate the actions taken by a municipality. Instead, the Town suggeststhat Mr.

Janes must show that “prejudice” arises from the actions of the Town and/or that the procedure taken was so dramaticallydevoid of appearance of fairness that the administration of justice was brought into disrepute. [72] Janzen itself cites the decision of the Supreme Court of Canada in Costello v. Calgary (City), (SCC), [1983] 1S.C.R. 14. In that case, the City had, by by-law, expropriated land owned by two joint tenants. In doing so, the City had failed to notifyone of the owners in strict compliance with the legislative service requirements.

The issue before the court was whether the servicerequirements set out in the legislation were mandatory or directory. In holding that the requirement was mandatory and that the non-compliance invalidated the by-law, McIntyre J., for the Court, stated at paragraph 11 (my emphasis added): 11 While each case must fall for decision upon its own peculiar facts and on the particular statutory provisions involved, and while inthis branch of the law earlier decided cases are rarely of direct application and assistance, some reference to the authorities will behelpful. There are many cases dealing with this question.

The courts have endeavoured to avoid interference with municipal enactmentsby an overly strict approach to their construction, but have generally insisted upon strict compliance with enabling legislation thatauthorizes municipalities to exercise extraordinary powers or pass by-laws concerning taxation, expropriation, or otherinterference with private rights… [73] McIntyre, J. continued at 16, stating: 16... It may be said that the error of the respondent was a small one and that the departure from the statutory provisions regarding serviceof notice was not, in the circumstances of this case, significant.

It may be said that the mailing was required to be made on October 30 or31 (it was made on November 3, only three days late) and that the courts should relieve against such a minor failure. But then thequestion arises: how far should the courts go in relieving municipalities from following mandatory provisions regarding service wherethe interest of private citizens is threatened? If an error of three days is forgiveable, then what about one of four, or five, or ten days?Surely, the line must be drawn somewhere to give the citizen any protection.

In my view, the line should be drawn where the Legislaturechose to put it and not where individual judicial discretion may fix it on a case by case basis… [74] To like effect, counsel for Mr. Janes cites Gerry’s Food Mart Ltd. v. St. John’s (City) (1992), (NL CA), 104Nfld. & P.E.I.R. 294, 37 A.C.W.S. (3d) 877 (Nfld. S.C. (C.A.)) in support of the principle that statutes encroaching upon the rights of asubject must be treated in the same manner as penal statutes, in that they should be strictly construed, favoring respect for the subject’srights. Counsel for Mr.

Janes also relies upon the decision in Dunville (Town) v. Power (1977), 13 Nfld. & P.E.I.R. 361, 29 A.P.R. 361(Nfld. S.C. (C.A.)), which provides that, where taxation legislation is concerned, “all conditions precedent to the taking of an action”must be complied with. [75] A few further cases are worth noting. The Supreme Court of Canada’s decision in M & D Farm Ltd. provides some helpfulguidance.

There, the court stated: [44] … In determining whether a statutory directive is mandatory or directory, this Court must be guided by the object of the statuteand the effects of ruling one way or the other: Vancouver Island Railway,

An Act Respecting, Re, (SCC), [1994] 2S.C.R. 41 (S.C.C.) at pp. 123-24. Indeed, these are the most important considerations: Apsassin v. Canada (Department of Indian Affairs& Northern Development), (SCC), [1995] 4 S.C.R. 344 (S.C.C.), per McLachlin J., at para. 42. [76] In Vancouver Island Railway,

An Act Respecting, Re, (SCC), [1994] 2 S.C.R. 41, cites in the passage above,Iacobucci J., at paragraph 156, noted that: ... [T]he manipulation of mandate and direction is, for the most part, the manipulation of an end and not a means. In this sense, to quoteagain from Reference re Manitoba Language Rights, supra, the principle is "vague and expedient" (p. 742). This means that the courtwhich decides what is mandatory, and what is directory, brings no special tools to bear upon the decision. The decision is informed bythe usual process of statutory

interpretation. But the process perhaps evokes a special concern for "inconvenient" effects, both public andprivate, which will emanate from the interpretive result. [77] In Royal Newfoundland Constabulary Public Complaints Commission v. McGrath , 2002 NLCA 74, Justice Roberts, for theCourt, noted that: … there is no general rule for determining whether a statutory provision is mandatory or directory and that each case must be consideredhaving regard to the nature of the particular requirement, i.e., the requirement’s importance in the overall statutory scheme. [78] With the guidance provided by the foregoing authorities, I conclude that

section 5 of the Development Regulations is

mandatory in nature. That

section spells out important requirements regarding information that must be provided to persons whose private property rights may be seriously impacted by an Order made by a municipality; this suggests that strict compliance should be required. Further to this, absent the inclusion of the information required by

section 5, persons may be unaware of the very short time period in which they may bring an appeal and may fail to take the timely, necessary legal steps to challenge an Order improperly made. This represents a significant inconvenience where, as a result, the person fails to file their appeal on time (a very possible result given the 14-day time limit). [ 79 ] I also note that finding that

section 5 of the Development Regulations to be mandatory is of only minor inconvenience to the Town. It simply requires it to include this prescribed information on its standard notice. A finding that this provision is mandatory will not materially affect the Town’s ability to discharge its duties and exercise its powers under the Municipalities Act, 1999 . [ 80 ] I conclude therefore that non-compliance with

section 5 of the Development Regulations renders the actions taken pursuant to section 404(5) of the Act invalid. However, as explained earlier herein, this is confined to the demolition and removal of the smaller building. [ 81 ] I find therefore that the Town’s entry for the demolition and removal of the smaller building was direct and (albeit mistaken), it must be characterized as negligent. Since trespass protects the person in actual possession, I accept that the elements of the tort of trespass are made out in this limited respect (Philip H.

Osborne, The Law of Torts , 5 th ed. (Toronto: Irwin Law Inc., 2015), at pages 311 to 313). 3. What did the Plaintiffs suffer as a result of the April 10, 2013 Notice, and the actions taken by the First to Fifth Defendants relative thereto, between April 10, 2013 and August 14, 2013? [ 82 ] A plaintiff “must prove that the defendant’s negligence caused his loss. This is known as cause-in-fact . …Cause-in-fact focuses on the factual issue of the sufficiency of the connection between the defendant’s wrongful act and the plaintiff’s loss.

It is this connection that justifies the imposition of responsibility on the negligent defendant” (Osborne at page 54). [ 83 ] Here I must assess whether the Town's failure to advise of the right of appeal was a cause of some harm or loss to Mr. Janes. [ 84 ] Counsel for Mr. Janes submits that had the Plaintiffs known of their right to appeal, they would have had time to consult with a lawyer and would have filed such an appeal.

Since the filing of an appeal would have, by virtue of section 408(2), stayed any further actions of the Town under the Order, counsel asserts that the appeal would have permitted her clients time to either negotiate a settlement or to clean up the Site and recover valuable property that was ultimately destroyed. [ 85 ] I must ask therefore, on a balance of probabilities, but for the failure of the Town to advise of the right of appeal, whether the evidence supports the conclusion that: 1. Mr. Janes would have consulted with a lawyer?; 2. Mr. Janes would have appealed?; 3.

Since an appeal would operate as a stay, the Town would have entered the Site?; and 4. If the stay had applied, would Mr. Janes have cleaned up the Site on his own? [ 86 ] I accept that “…there is … some degree of speculation in determining cause-in-fact. It is inevitably a hypothetical inquiry. … The trier of fact is assisted by the evidence… but ultimately, the determination of cause-in-fact depends upon a generous application of common sense, experience, and intuition” (Osborne, at page 55). [ 87 ] I am satisfied that, had Mr. Janes been provided with the information required pursuant to

section 5 of the Development Regulations , he would have engaged counsel earlier and would have filed an appeal. These are reasonable inferences to draw from Mr. Janes’ subsequent conduct. [ 88 ] As to the Town’s response to an appeal, I conclude that it would have respected the stay. This is also a reasonable inference to draw because the Town has established that its actions throughout the period were careful, reasonable and based on legal advice. The result would have been that the Town would not have proceeded to demolish the building on the date that it did. The Town cannot therefore recover from Mr.

Janes the costs it incurred for the demolition and removal of the smaller building. [ 89 ] I will also address the assertion that Mr. Janes, had he had the additional time to conduct the clean-up of the property, would have done so. I note that he was provided with four separate notices between March 2010 and April 10, 2013 addressing the Town’s desire that he remove debris from and repair buildings on the Site. The Town appropriately halted its operations on July 19, 2013 when it learned of the solicitor’s letter and then provided Mr.

Janes with Notices on August 8, 2013 and October 23, 2013 before acting further on November 25, 2013 to clean up the Site. Mr. Janes failed to respond to either of the six Notices and chose to leave the Site in a disgraceful state. [ 90 ] It has not been established by the Plaintiffs that any additional time afforded to them from the filing of an appeal between April and August 2013 would have led to Mr. Janes attending to the clean-up of the Site.

He had three years and five Notices between March 2010 and April 2013 and did nothing except remove three car wrecks. [ 91 ] My determination on Issue 3 is limited to the question of causation and not to damages that Mr. Janes may claim for the unlawful entry to demolish the building, (including damage to his personal property, loss of income or for loss of privacy). However, I note that respecting alleged losses associated with the Site being inaccessible between July and December, that the fencing was necessitated by the unsafe conditions that resulted from Mr.

Janes’ own actions in instructing his solicitor to forward letters (which led to the cessation of work).

[ 92 ] As to Ms. Janes, whose private rights were also affected because she stored personal items in the buildings, the evidence confirms that she was given the right to enter and remove her contents on both July 19 and 22, 2013 and that she did so. She therefore cannot claim that she lost personal property as a result of a failure to be advised of a right of appeal. 4.

Were the Fourth and Fifth Defendants acting as agents and, if so, for whom and are they entitled to indemnification? [ 93 ] Counsel for the Town and for Nelson and Lori Ann Janes both concede that the Fourth and Fifth Defendants acted as agents of the First, Second and Third Defendants. Counsel for Nelson and Lori Ann Janes, however, suggest that because Mr. Fudge was directly advised of the Plaintiffs’ concern by separate letter provided to him while operating the excavator on July 19, 2013, Mr.

Fudge and the contracting company of which he was an employee, are jointly and severally liable to the Plaintiffs. [ 94 ] Counsel for the Town of Embree, Mayor and Deputy Mayor conceded during oral argument that there was no allegation of wrongdoing made against Mr. Fudge or Dennis Fudge Contracting Limited and that on normal principles of agency, indemnification by the Town of Embree would naturally follow. [ 95 ] Counsel for Mr. Fudge and Dennis Fudge Contracting Limited asserts that no authority was cited by Ms.

Dawe, Q.C. for the proposition of joint and several liability and offers the following argument in addition. Mr. French points out that neither the Statement of Claim, Mr. Janes’ original Affidavit, counsel’s original Memorandum of Fact and Law (filed on the hearing of the threshold issue for

Summary Trial), nor the subsequent Memorandum of Fact and Law, make any assertion of actions that would result in a finding of joint and several liability which language Mr. French suggests is inconsistent with a conclusion of agency. [ 96 ] I agree with counsel for Mr.

Fudge and Dennis Fudge Contracting Limited that all references made by counsel for Nelson Janes and Lori Ann Janes in the pleadings and Memorandums of Law, reflect assertions that the actions of either Robert French or the company of which he was an employee, were taken “on behalf of” “on instruction of” the Town. [ 97 ] A finding of agency is a factual determination fully supported by the facts in this case and a right of indemnification follows from this finding.

I conclude therefore, that, where liability is found for the actions of the Fourth and Fifth Defendants, acting as agents of the Town Council of Embree, they would be entitled to full indemnification by the Town Council of Embree. DAMAGES [ 98 ] While assessment of damage is reserved for another day, I note that Dennis Fudge Contracting Limited charged the Town a total of $4,769.73 but that the invoice is not restricted to the demolition and removal of the smaller building. On the assessment of damages therefore, I confirm that the Town is entitled to recover from Mr.

Janes the costs it incurred for the removal of waste material (but not demolition and removal of the smaller building) because these actions were taken and costs incurred, lawfully under

section 178 of the Municipalities Act. [ 99 ] Counsel shall arrange for an agreeable date to appear before me and advise of their respective positions on the next steps to be taken in this litigation. [ 100 ] As to costs, either party may apply. _____________________________ Gillian D. Butler Justice