The Town Council of the Town of Baie Verte Applicant And: Sherry Haas Respondent, 2021 NLSC 107

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Baie Verte (Town) v. Haas , 2021 NLSC 107 Date : August 4, 2021 Docket : 202001G5023 Between: The Town Council of the Town of Baie Verte Applicant And: Sherry Haas Respondent Before: Justice Sandra R. Chaytor Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: May 7, 2021

Summary: The Town brought an Application seeking an injunction pursuant to

section 104 of the Urban and Rural Planning Act to prohibit the Respondent, amongst other things, from storing wrecked vehicles on rural zoned property. The Respondent admitted that she was temporarily storing wrecked vehicles on the property until they could be collected by a third party for recycling. She also admitted to storing catalytic converters on the property. The Respondent had previously unsuccessfully applied to the Town for a permit to utilize the property for these purposes. The Town in rendering its decision to reject that application, however, had not advised the Respondent of her right to appeal as required pursuant to

section 5 of the Development Regulations under the Act . Held: The Court granted the injunction with respect to the storage of the wrecked vehicles and catalytic converters on the property. Given the Town’s failure to comply with

section 5 of the Development Regulations , however, the Court exercised its discretion in imposing terms and conditions on the nature and scope of the injunction. The Court denied the Application with respect to other injunctive relief sought. Given the mixed results, the parties bore their own costs.

Appearances: Giles W. Ayers Appearing on behalf of the Applicant Sherry Haas Appearing on her own behalf Authorities Cited: CASES CONSIDERED: Bell ExpressVu Limited Partnership v. Rex, [2002] S.C.R. 559; United Taxi Drivers' Fellowship of SouthernAlberta v. Calgary (City), 2004 SCC 19; Vancouver (City) v. Maurice, 2005 BCCA 37; Workers’ Compensation Board of BritishColumbia v. Skylite Building Maintenance Ltd., 2019 BCSC 231; Glovertown (Town) v. Genge (1992), (NL SC), 97Nfld. & P.E.I.R. 294, 308 A.P.R. 294 (Nfld. S.C.(T.D.)) STATUTES CONSIDERED: Urban and Rural Planning Act, 2000, S.N.L. 2000, c. U-8; Municipalities Act, 1999, S.N.L. 1999, c. M-24;

Interpretation Act, R.S.N.L. 1990, c. I-19 REGULATIONS CONSIDERED: Development Regulations, created under the authority of the Urban and Rural Planning Act, 2000,S.N.L. 2000, c. U-8 REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION [1] The Town Council of the Town of Baie Verte (“the Town”) brought this Application against Sherry Haas seeking injunctiverelief pursuant to

section 104 of the Urban and Rural Planning Act, 2000, S.N.L. 2000, c. U-8 (“the URPA”). [2] Ms. Haas is the owner and an occupier of 17 Harbourview Terrace, within the Town (“the Property”). The Property, located atthe end of the road, is comprised of approximately six acres and includes a residence. It is zoned rural pursuant to the Town’s MunicipalPlan and Development Regulations. [3] The Town contends that Ms. Haas is carrying out a development on the Property, without a permit, contrary to the URPA andthe Town’s Development Regulations. In particular, it alleges that Ms.

Haas has been using the Property for storage or scrapping ofwrecked vehicles, to conduct a heavy equipment business, and as a business office. The Town submits that the scrapyard and heavyequipment operations on the Property adversely affect surrounding properties. [4] The Town seeks the following relief: (

a) A prohibitive injunction requiring Ms. Haas to cease the unauthorized development activity at the Property, including: (

i) The use of the Property for the storage or scrapping of wrecked vehicles; (ii) The use of the Property to conduct a heavy equipment business; (iii) The operation of heavy equipment on the Property; (iv) The storage of heavy equipment on the Property; and

(

v) The use of the Property as a business office. (

b) A mandatory injunction requiring Ms. Haas to restore the Property to its original state, including removal of scrapped cars and heavy equipment. [ 5 ] For her part, Ms. Haas: (

i) denies wrecked (or as she calls them “end-of-life”) vehicles are scrapped on the Property. She admits however that catalytic converters and wrecked vehicles are stored temporarily on the Property. The vehicles are collected from the surrounding area and she arranges a third party company to periodically retrieve them for recycling. The scheduling of the retrieval was interrupted this past year due to public health restrictions arising from the pandemic.

She contends this is not a home occupation but rather a mobile business; (ii) denies that the Property is used to conduct heavy equipment business; (iii) states that the operation of heavy equipment on the Property is with respect to landscaping for which a permit was obtained from the Town and also for the purpose of maintenance of the Property; (iv) states the storage of heavy equipment on the Property is for snow clearing and maintenance of the Property and to deliver firewood for a nearby apartment building owned by her.

She acknowledged in her oral submission that heavy equipment for her business was also stored on the Property; and (

v) denies that the Property is used as a business office. [ 6 ] In support of this Application, the Town filed an affidavit by its Chief Administrative Officer, Amanda Humby. A supplemental affidavit of Ms. Humby was filed in reply to Ms. Haas’ written brief. Ms. Haas’ filed a detailed brief in response to the Application, however, the response was not grounded in an affidavit. At the hearing, upon the consent of the Town, Ms.

Haas testified to the truth of the contents of her response (excluding of course any statements contained in the response which were deemed to be hearsay). background [ 7 ] There is often a history between the parties in civil actions before they find themselves in court embroiled in litigation. This matter is no exception. [ 8 ] On July 20, 2017, Ms. Haas applied for a permit to operate a small general contracting business and to store heavy equipment on the Property (“the 2017 Application”).

This was for a limited amount of equipment comprised of two dump trucks, an excavator, a mini excavator, a mobile screener, and a utility trailer. The percentage of the Property that would be used to store equipment was indicated to be approximately one percent of the total acreage. In response to the 2017 Application, on January 25, 2018, the Town granted Ms. Haas an Approval in Principle, subject to certain conditions. Ms.

Haas did not agree with the conditions so she appealed the Town’s decision to the Central Regional Appeal Board (“the Board”). [ 9 ] By way of decision dated August 22, 2018, the Board determined that the Town had not exercised its authority appropriately in granting the Approval in Principle as the Town’s Development Regulations did not identify a home occupation as a permitted discretionary use within a rural zone.

As such, the Board reversed the Town’s decision leaving, in the words of the Board, “the development application… before the authority without a decision.” The Board further determined that the residence on the Property and the proposed development were not permitted and therefore directed the Town to consider the 2017 Application under its current plan, regulations and any other applicable legislation and “make a decision in conformance.” Ms. Haas says she interpreted this as the Board giving a directive to the Town to bring the Property into conformance.

The Town admits that it did not make a decision on the 2017 Application or take further action on it following the Board’s decision. [ 10 ] Over a year later, on December 17, 2019, the Town served an Order on Ms. Haas pursuant to subsections 404(1) (

j) and 404(1) (

l) of the Municipalities Act, 1999 , S.N.L. 1999, c. M-24 and subsection 102(1) of the URPA . It ordered Ms. Haas to cease use of the Property for the storage or scrapping of wrecked vehicles, conducting a heavy equipment business, the operation of heavy equipment, the storage of heavy equipment, and the use of the Property as a business office. Ms. Haas was given 21 days to comply. [ 11 ] Subsections 404(1)(

j) and 404(1)(

l) of the Municipalities Act state: 404

(1) A council may make an order that

(

j) a person who causes a nuisance contrary to the regulations of the council cease causing that nuisance; … (

l) that [sic] 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. [ 12 ] Subsection 102(1) of the URPA states: 102.

(1) Where, contrary to a plan or development regulations, a person has undertaken or commenced a building or other development, the council, regional authority or authorized administrator responsible for that plan or those regulations or the minister where he or she considers it necessary, may order that the person pull down, remove, stop construction fill in or destroy that building or development and may order that the person restore the site or area to its original state. [ 13 ] The Order issued against Ms.

Haas contained a number of recitals including the definition of a development pursuant to the Town’s Development Regulations as including “the making of any material change in the use, or the intensity of use of any land, buildings, or premises.” It further recited the Development Regulations as stating that “[n]o person shall carry out any development within the Planning Area except where otherwise provided in these Regulations unless a permit for the development has been issued by the authority.” [ 14 ] After listing the impugned uses of the Property, the Order then stated the following recital: AND WHEREAS the above-noted material change of use and/or use constitutes a development for which a permit is required but has not been sought or obtained. [ 15 ] The Order concluded by advising Ms.

Haas of the potential consequences of her failure to comply with it and of her right to appeal. She was advised that failure to comply could result in the Town taking action to carry out the terms of the Order and the costs of doing so would be recoverable against her as a debt owed to the Town and that failure to comply constitutes an offence under the legislation for which she could be prosecuted. Ms. Haas was advised she had a right to appeal the Order to the Regional Appeal Board within 14 days. [ 16 ] Ms. Haas did not appeal the Order.

Within the 14 day appeal period, however, on December 30, 2019, as owner of Coppercreek Eavestrough & General Contracting Co. Ltd., she applied to the Town for a business permit to collect and store solid waste material (primarily automotive and “end- of- life” vehicles) as a discretionary use of the Property (“the 2019 Application”). The material collected was to be processed by Newco Metal & Auto Recycling Ltd. [ 17 ] On the same date as the 2019 Application, Ms. Haas and her husband also sought from the Town a permit to excavate land at 6 Harbourview Terrace as well as the Property.

On January 10, 2020, the Town wrote to Coppercreek Eavestrough & General Contracting Co. Ltd., to the attention of Ms. Haas, that it had no issues with the request to obtain a Site Preparation Permit to excavate the properties as requested and that Ms. Haas could attend at the Town office to obtain a permit upon payment of the applicable fee. A “Site Permit” was granted by the Town on January 16, 2020, providing permission to perform landscaping at the Property (“the Landscaping Permit”). [ 18 ] On January 28, 2020, the Town wrote to Coppercreek Eavestrough & General Contracting Co. Ltd., to the attention of Ms.

Haas, rejecting the 2019 Application.

In doing so, the Town advised that, “[t]he collection and storage of solid waste is not listed as a permitted or discretionary use inside this zone and therefore the Town cannot issue you a permit.” The letter also referenced the Board’s August 22, 2018, decision pertaining to the 2017 Application and stated that: the Rural Zone does not identify home occupations as permitted or discretionary use; the operation of a business from the Property would not conform with the Development Regulations ; and the Town must exercise its authority appropriately to deal with any non-compliance.

The Town extended the time period for Ms. Haas to comply with the Order to April 30, 2020, and offered to assist in finding a new location for the operation of the business. The letter did not advise of any right of appeal of the Town’s decision. [ 19 ] The Town contends that Ms. Haas did not comply with the Order.

Hence, this Application was brought by the Town seeking statutory injunctive relief. issue [ 20 ] The issue to be determined is whether the Town is entitled to the statutory injunctive relief sought. [ 21 ] For the reasons that follow, the Application is denied with respect to the alleged usages of the Property as a business office and heavy equipment business. The injunction is granted, subject to terms and conditions, with respect to the storage of wrecked vehicles and catalytic converters on the Property. analysis The Legal Framework [ 22 ] The Town contends that Ms.

Haas is carrying out an unauthorized development on the Property. It relies upon the definition of “development” under subsection 2 (

g) of the URPA which includes, “the carrying out of any building, engineering, mining or other operations in, on, over, or under land, or the making of any material change in the use, or the intensity of use of any land, buildings, or premises…” It is noted that the definition of development pursuant to this subsection excludes “the use of any building or land within

the courtyard of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as such.” [23]

Section 16 of the

Interpretation Act, R.S.N.L. 1990, c. I-19, provides that “[e]very Act and every regulation and everyprovision of

an Act or regulation shall be considered remedial and shall receive the liberal construction and

interpretation that bestensures the attainment of the objects of the Act, regulation, or provision according to its true meaning.” [24] In Bell ExpressVu Limited Partnership v. Rex, [2002] S.C.R. 559, the Supreme Court of Canada endorsed a broad andpurposive approach to statutory

interpretation and stated that there is only one principle or approach, namely, the words of

an Act are tobe read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of theAct, and the intention of Parliament. In United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, theSupreme Court of Canada found that this rule of general application specifically applies to the

interpretation of municipal powers. [25]

Section 104 of the URPA empowers the Town to seek a statutory injunction to restrain breaches of its Development Regulationsand the URPA. It states as follows: Injunctive and other relief 104.

The minister, a council, regional authority or authorized administrator may take an action by way of prosecution or other legalproceedings including but not limited to an application for injunctive or declaratory relief which the minister, council, regional authorityor authorized administrator considers necessary to enforce this Act or a plan, order or regulations made under this Act. [26] In seeking a statutory injunction, the Town must prove a clear breach of an enactment. In Vancouver (City) v.

Maurice, 2005BCCA 37, the court at paragraph 34 summarized the appropriate test for a statutory injunction sought by a municipal authority: … where a public authority, such as the City, turns to the courts to enforce an enactment, it seeks a statutory rather than an equitableremedy, and once a clear breach of an enactment is shown, the courts will refuse an injunction to restrain the continued breach only inexceptional circumstances: Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), (BC CA), 47 M.P.L.R. (2d)249 (B.C. C.A.), and British Columbia (Minister of Forests) v.

Okanagan Indian Band (2000), 2000 BCCA 315 , 187 D.L.R.(4th) 664 (B.C. C.A.). [27] In Workers’ Compensation Board of British Columbia v. Skylite Building Maintenance Ltd., 2019 BCSC 231, the WorkersCompensation Board sought permanent injunctive relief to restrain the respondents from carrying on business in the asbestos abatementindustry. In seeking the injunction, the board relied on jurisprudence that has evolved which provides that the scope of the court’sdiscretion to refuse an injunction is limited once a breach of a municipal by-law has been established.

At paragraph 155, the court stated: The authorities in the municipal by-law enforcement context are clear that where a breach is established, the discretion of the court torefuse to grant an injunction to enforce a by-law is narrow and is reserved for rare cases, for example where the injunction would notproperly address the mischief the bylaw is aimed at preventing: see Buranaby (City) v.

Pocrnic,1999 BCCA 652 at para. 18. [28] In that case, the court further noted however, at paragraphs 156 and 157 that although it had little discretion to deny aninjunction in the circumstances of a by-law breach, it did not mean that the court’s discretion to determine the scope, duration and natureof the injunction was equally circumscribed. The nature and extent of the court’s discretion to issue the statutory injunction will turn onthe terms of the statute. [29] It is also well established that a municipality does not have to exhaust all other remedies prior to seeking an injunction(Glovertown (Town) v.

Genge (1992), (NL SC), 97 Nfld. & P.E.I.R. 294, 308 A.P.R. 294 (Nfld. S.C.(T.D.)), at para.27). This means that prior to coming to Court to seek injunctive relief, the Town did not have to first pursue the possible remedies ofwhich it had advised Ms. Haas in the Order. It did not have to pursue prosecution against Ms. Haas or carry out the work itself and seekrecovery of its costs in doing so from her prior to initiating this Application for injunctive relief. [30] It is against this legal framework that I must analyze the facts of this case.

Use of the Property as business office [31] Amanda Humby attested in her affidavit that in or about 2017, Ms. Haas began using the Property as a business office. Ms.Haas, on the other hand attested that this is not correct. She asserts that her business office is not located on the Property. Rather it issituate in a commercial apartment building owned by Coppercreek Eavestrough & General Contracting Co. Ltd. located at 2-5Harbourview Terrace. [32] In a reply affidavit, Amanda Humby attests that she has no knowledge of any business office at 2-5 Harbourview Terrace andthat the basis of her belief that Ms.

Haas operates a business office at 17 Harbourview Terrace is because on May 30, 2016, Ms. Haasapplied for a business permit for Coppercreek Eavestrough & General Contracting Co. Ltd. to operate out of the Property. No otherevidence was proffered to support the Town’s assertion as to the current location of the business office. [33] The Court notes that the application on which Ms. Humby’s belief is based was dated over four years prior to this Applicationfor injunctive relief. I accept Ms. Haas’ evidence that currently the business office is located at 2-5 Harbourview Terrace.

In seeking aninjunction to prohibit the Property from being used as a business office, the Town bore the onus of establishing that Ms. Haas was inbreach of an enactment by having a business office located at the Property. Based on the evidence adduced, it has not met its burden. Use of the Property to conduct a heavy equipment business including storage and operation of heavy equipment [34] Amanda Humby attested in her affidavit that Ms. Haas uses the Property to conduct a heavy equipment business including the

storage and operation of heavy equipment on the Property. The Town asserts that this use of the Property constitutes a development for which Ms. Haas does not hold a permit. The Town seeks to enjoin this activity. The Town adduced into evidence aerial photographs which depicted heavy equipment on the Property. [ 35 ] Ms. Haas concedes that there are a few pieces of heavy equipment on the Property. However her evidence is that the storage and operation of the heavy equipment on the Property is not in furtherance of a heavy equipment business.

She attested that the equipment is utilized for landscaping the Property in accordance with the Landscaping Permit and for snow clearing in winter months including the maintenance of a 300 foot driveway which services the Property. The same equipment is also used to haul firewood for her nearby commercial apartment building. Ms. Haas further admitted that equipment for her contracting business is stored on the Property. [ 36 ] In the aerial photographs adduced into evidence by the Town, Ms. Haas noted that currently one of the dump trucks and an excavator depicted are non-operational.

She testified that there is another dump truck, an excavator, and a Kubota tractor depicted that are operational and are being utilized for the landscaping. She noted in particular that the Kubota tractor is used for spreading and smoothing the ground. Ms. Haas referenced the significant size of the Property and that as she and her husband are doing the landscaping work themselves it has been a time consuming undertaking to complete the project. Ms.

Haas denies that any of the heavy equipment is utilized for working on the wrecked vehicles on the Property or otherwise for a heavy equipment business. [ 37 ] Amanda Humby acknowledged in her reply affidavit that Ms. Haas owns approximately six acres of land and that she has no knowledge of whether Ms. Haas uses heavy equipment to conduct snow clearing on the property. She stated that she believes however that Ms. Haas uses the heavy equipment for her contracting business and the sources of her belief are the aerial photographs which show the presence of such equipment on the Property.

The aerial photographs adduced into evidence by the Town depict the pieces of equipment referred to by Ms. Haas on the Property. The photographs did not show the equipment in operation or engaged in any activity contrary to the uses attested to by Ms. Haas. [ 38 ] Ms. Humby also referenced the 2017 Application as support of her belief. Through the 2017 Application Ms. Haas sought to operate a small general contracting business from the Property and listed the equipment that would be utilized.

The Town granted a conditional permit with respect to that application which was subsequently reversed by the Board leaving, in the words of the Board, “the development application… before the authority without a decision.” The Board further determined that Ms. Haas’ residence on the Property and the proposed development in the 2017 Application were not permitted and therefore the Town was directed to consider that application under its current plan, regulations and any other applicable legislation and to make a decision in conformance.

This did not happen. [ 39 ] Subsequent to the Board’s decision, the Town did not consider the 2017 Application. Rather as deposed by Amanda Humby, “following the Board’s decision, the Town deemed the application rejected and did not consider it again.” This was not communicated to Ms. Haas. For her part, Ms. Haas interpreted the Board’s decision as directing the Town to find a way for her Property, including her residence, to be brought into conformance such as through a potential variance.

She claims, in particular, that the Town had granted permission for her to erect the residence in 2013. [ 40 ] The Town should have dealt with the 2017 Application as directed by the Board and provided a decision to Ms. Haas. This inaction by the Town no doubt has contributed to the situation and any confusion on Ms.

Haas’ part that exists today. [ 41 ] Regardless of this error on the part of the Town, I am not satisfied in any event that it has met its onus from a factual perspective of establishing that the storage or operation of the equipment on the Property constitutes a clear breach of an enactment so as to warrant the Court granting an injunction. [ 42 ] The definition of “development” under

section 2 (

g) of the URPA includes, “the carrying out of any building, engineering, mining or other operations in, on, over, or under land, or the making of any material change in the use, or the intensity of use of any land, buildings, or premises…” It excludes “the use of any building or land within the courtyard of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as such.” [ 43 ]

Section 7 of the Town’s Development Regulations provides that, “[n]o person shall carry out any development within the Planning Area except where otherwise provided in these Regulations unless a permit for the development has been issued by the authority.” [ 44 ] Applying a broad and purposive statutory

interpretation approach requires the words of

section 2 (

g) of the URPA to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the URPA , its object, and the intention of the legislature. In doing so, in my view, the storage and operation of the heavy equipment on the Property for landscaping is such as to constitute a development. I accept Ms. Haas’ evidence, however, that the few pieces of heavy equipment on the Property are being utilized for landscaping pursuant to the Landscaping Permit. This is a small amount of equipment and there is a large acreage of land that she is attempting to landscape.

In this respect, it is an authorized use by the Town and therefore not a clear breach of an enactment. [ 45 ] I also accept Ms. Haas’ evidence that the same equipment is utilized in the winter for snow clearing purposes of the lengthy driveway accessing the Property. Ms. Humby acknowledged having no knowledge of whether the equipment is utilized for snow clearing. Applying a broad and purposive approach to the

interpretation of

section 2(g), I cannot conclude that a development under the URPA is intended to include snow clearing of a driveway such that a person would have to apply to the Town to obtain a permit for such activity. This is particularly so in this case since it is the same equipment which is being stored on the Property to carry out authorized activities. [ 46 ] Ms. Haas admitted that the same pieces of equipment stored on the Property for the purposes of the landscaping were also being used to haul or handle firewood for a nearby apartment building.

It was not clear based on the evidence however, whether the usage of the equipment for this purpose was taking place on the Property. It was the Town’s burden to establish this activity as being a clear breach of an enactment. Without more evidence on this point the Court is unable to conclude that the Town has met its burden. [ 47 ] Furthermore, although Ms. Haas admitted that equipment used in carrying out her contracting business was stored on the

Property, it was not clear from the evidence adduced what type of equipment this is, or whether it was the same equipment that is stored for purposes of the landscaping of the Property (which I have found not to be a clear breach of an enactment). It was the Town’s onus to prove that the storage of this equipment on the Property was such as to constitute a clear breach of an enactment.

Based on this limited evidence, I cannot conclude that this onus has been met. [ 48 ] Overall, the Town has not met its evidentiary burden of establishing that the storage or operation of heavy equipment on the property is such as to constitute an unauthorized development or is otherwise a clear breach of an enactment so as to entitle the Town to an injunction to enjoin Ms. Haas from the storage and operation of the heavy equipment that is currently occurring on the Property.

The use of the Property for the storage or scrapping of wrecked vehicles [ 49 ] It is this activity that is of the most concern to the Town. [ 50 ] Ms. Humby’s affidavit states that Ms. Haas continues to use the Property for the storage and scrapping of vehicles. Ms. Haas denies vehicles are being scrapped on the property. The Town did not adduce any evidence to establish the basis of Ms. Humby’s assertion to the contrary. I accept Ms. Haas evidence that vehicles are not being scrapped on the Property. [ 51 ] Ms. Haas admits however that wrecked vehicles are stored on the Property.

She also admits that she is storing a significant number of catalytic converters. She asserts economic and environmental benefits to the region in carrying out this activity as she is providing employment and cleaning up abandoned car wrecks and arranging for them to be recycled. Ms. Haas collects and stores the wrecked vehicles on the Property on a temporary basis and then engages a company to attend at the Property, crush the vehicles, and remove them for recycling. These are the activities for which she applied to the Town for a permit in the 2019 Application which was denied.

She contends that this is a “mobile business” and not a home occupation. [ 52 ] At the hearing, Ms. Haas confirmed that an aerial photograph adduced by the Town depicted the current condition of the Property. She admitted that there were approximately 60 wrecked vehicles stored on the Property. In her written submission dated April 8, 2021, she stated that in the past year 180 vehicles were crushed on the Property the previous year. [ 53 ] Again applying a broad and purposive approach to the

interpretation of

section 2 (

g) of the URPA , I am satisfied that the extent and nature of these activities, including the storage of catalytic converters, is such to constitute a development. Ms. Haas is carrying out operations on the Property and these activities are making a material change in the use, or the intensity of use of the Property. Ms. Haas is doing this without a permit and as such this is a clear breach of an enactment. [ 54 ] However, Ms. Haas, on behalf of her company, through the 2019 Application did apply for a permit to store solid waste material (being primarily automotive and “end of life” vehicles) on the Property.

The 2019 Application was brought within the appeal period following service of the Order. In the 2019 Application, Ms. Haas asked the Town to exercise its discretion to allow the storage of solid waste on the Property. [ 55 ] In seeking this usage of the Property, Ms.

Hass states she relied upon the “Discretionary Use Classes” set out in the Town’s Development Regulations for rural zoning which are listed as: “outdoor assembly, single dwelling, outdoor market, mineral working, recreational open space, cemetery, antenna, solid waste, general industry (see Condition 3), transportation, utilities (power and telephone distribution, water tower, water reservoir) and animal.” Ms. Haas contends that the storage of the wrecked vehicles and catalytic converters could be considered as solid waste. [ 56 ] The Town rejected the 2019 Application by way of its letter dated January 28, 2020.

In doing so it stated, “[t]he collection and storage of solid waste is not listed as a permitted or discretionary use inside this zone, and therefore the Town cannot issue you a permit.” It also reminded Ms. Haas of the Board’s decision in the 2017 Application that the rural zone does not identify home occupations as a permitted or discretionary use and that the operation of a business from the Property did not conform with the Town’s Regulations. [ 57 ] In rejecting the 2019 Application, the Town failed to provide Ms. Haas with notice of the right to appeal the Town’s decision.

Section 5 of the Development Regulations under the URPA states as follows: 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) person’s 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. [ 58 ] Subsection 42(1) (

a) of the URPA states that a person 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 an application to undertake a development. [ 59 ] The obligation of the Town under

section 5 of the Development Regulations is mandatory. It was required to notify Ms. Haas

in writing at the time of its decision on January 28, 2020, of her right to appeal and the time lines and manner in which an appeal could take place. This obligation by the Town was not fulfilled. [ 60 ] Although the Town does not have to exhaust all remedies available to it prior to coming to Court to seek assistance by way of statutory injunctive relief, the Town should fulfill its statutory powers and obligations regarding any application brought before it which relates to the issue for which it seeks injunctive relief. [ 61 ] Whether Ms.

Haas has a legitimate appeal on the merits of the Town’s decision is not before the Court. The subject matter of the storage of wrecked vehicles or automotive material on the Property was not part of the 2017 Application by Ms. Haas. Thus the Board has not considered the question as to whether, contrary to the Town’s conclusion in its refusal of the 2019 Application, these activities, framed as a “mobile business” could fit within the discretionary use of solid waste. [ 62 ] In the meantime, Ms.

Haas is carrying out the development activity of storing wrecked vehicles and catalytic converters on the Property without a permit. Therefore I am prepared to grant the injunction to enjoin her from doing so. Given however the Town’s failure to comply with

section 5 of the Development Regulations , the Court is prepared to exercise its discretion in terms of the scope and nature of the injunction by allowing Ms. Haas additional time to comply with removal of the vehicles and catalytic converters and having the injunction take effect only after the Town has complied with its statutory powers and obligations with respect to the 2019 Application. Therefore the injunction is granted on the following basis: 1. Ms. Haas is prohibited from storing wrecked vehicles or catalytic converters on the Property; and 2. Within 60 days of the filing of the Order in this matter, Ms.

Haas is to remove all wrecked vehicles and catalytic converters from the Property; PROVIDED THAT 3. Within 14 days of the filing of the Order in this matter, the Town deals with the 2019 Application in a manner compliant with its statutory powers and obligations including advising Ms. Haas of the right, manner and time of appeal of its decision.

summary and disposition [ 63 ] I find that the Town has not met its evidentiary burden of establishing a breach of enactment with respect to the use of the Property (1) as a business office; or (2) for conducting a heavy equipment business through the storage or operation of heavy equipment. [ 64 ] With respect to the use of the Property for the storage or scrapping of wrecked vehicles. I find that the Town has not established that vehicles are being scrapped on the Property.

However, with respect to the storage of wrecked vehicles as well as catalytic converters on the Property, I find this has been established and these activities meet the definition of a development pursuant to the Town’s Development Regulations . Ms. Haas is carrying out this development without the requisite permit and therefore this is a clear breach of an enactment. [ 65 ] I am satisfied that the Town has met its burden and the injunction is granted with respect to the storage of wrecked vehicles and catalytic converters on the Property on the following basis: 1. Ms.

Haas is prohibited from storing wrecked vehicles or catalytic converters on the Property; and 2. Within 60 days of the filing of the Order in this matter, Ms. Haas is to remove all wrecked vehicles and catalytic converters from the Property; PROVIDED THAT 3. Within 14 days of the filing of the Order in this matter, the Town deals with the 2019 Application in a manner compliant with its statutory powers and obligations including advising Ms. Haas of the right, manner and time of appeal of its decision.

[ 66 ] Given the mixed results on this Application, the parties are to bear their own costs. _____________________________ Sandra R Chaytor Justice