Mississauga (City) v. Ulman, 2012 ONCJ 570

Citation: Mississauga (City) v. Ulman, 2012 ONCJ 570 ONTARIO COURT OF Justice Central West Region BETWEEN: The City of Mississauga -and- Joseph Ulman (Certificate of Offence) Proceedings conducted November 3, 2011, 26 April, 2012 (adjourned at request of the Court), July 26, 2012, at the City ofMississauga, Ontario Decision and Reasons issued 11 September, 2012 Appearances: C. Mariuz for the Crown self for the defence Statutes Considered or Cited: Building Code Act, R.S.O. 1992, c.23 as amended City of Mississauga Property Standards By-law 654-98 Highway Traffic Act R.S.O. 1990, c.

H.8 Cases Considered or Cited: R. v. Howse, 2012 ONCJ 517 R. v. W. (D.) [D.W.], (SCC), [1991] 1 S.C.R. 742 Background 1. Joseph Ulman is the owner of a property located at 1272 Kane Road in the City of Mississauga. He is charged by way of a PartI Certificate of Offence under City of Mississauga Property Standards By-law 654-98, pursuant to the authority of the Building Code Act,with failing to comply with an Order issued by a Property Standards Officer. 2.

The Order arises, it appears, out of an investigation triggered by a neighbour’s complaint to the City, regarding the “parking” ofmultiple, un-plated vehicles on the defendant’s property. In addition, the Property Standards Officer observed debris across the subjectproperty, and included in her Order a requirement that this debris be remove. 3. The facts in this case are not in contest. The defendant owns six motor vehicles which he parks on his property. These motorvehicles are not always plated.

The By-law prescribes that: All exterior property areas, including vacant land, shall be maintained in a clean and reasonable condition so as to prevent fire, accidents or health hazard, and more particularly:(162-03)

(1) No wrecked, dismantled, inoperative, discarded, unused or unlicensed vehicles, trailers, machinery or objects or parts thereof shall be placed, stored or left on land, … 4 . A Property Standards Officer issued an Order requiring that the owner “Remove all unlicensed vehicles from property”. The Order was issued 28 July 2010 and was served by registered mail to the owner at his address. It indicated a compliance date” of 26 August 2010. 5 . The owner indicates that on August 26 th , all the un-plated vehicles were removed from the property.

On numerous subsequent dates, specifically 20 September, 2010, 04 October, 2010, 19 October, 2010, 01 November, 2010, 24 November, 2010 and 01 February, 2011, when the Property Standards Officer attended at the property, the un-plated vehicles were found to be there. In addition, following the date the charge was laid, being 01 February, 2011, the Property Standards Officer re-attended at the property on 25 May, 2011 and 26 September, 2011, and observed un-plated vehicles on the property.

On 02 November, 2011, the Property Standards Officer again attended and on that date, there were no un-plated vehicles to be seen. 6 . There are a number of issues raised by the defendant, including the following: a. Is the By-law lawful, in that it uses what the defendant refers to as a “foreign” spelling of the word “license”, claiming that the appropriate and acceptable “Canadian” spelling would be “licence”? b. Can any resident comply, given that vehicles in Ontario are not “licensed” (or “licenced”), but rather, plated? As a result, can enforcement action be taken? c.

Absent evidence contrary to his own that any un-plated vehicles were removed on the compliance date indicated on the Order, can he be said to be in violation? 7 . The Prosecution concedes that the issue of debris, being remnants of insulation scattered about the property arising from an apparent attack by animals to the roof of the home and subsequent protracted repairs, are not a primary issue in dispute, and the Prosecution does not materially rely on allegations in regard to insulation as a part of its case. Evidence 8 . As indicated above, the facts are simple.

However, in addition to what has been described, I believe it is important to capture some additional facts placed in evidence by the defendant. 9 . The defendant is licensed as and operates a used car dealer. This entitles him to “dealer plates”, under the Highway Traffic Act . Through his dealership, he owns numerous motor vehicles, including the six which are typically parked for at least part of each day, sometimes all at the same time, at his residential address.

He describes at least some of these as “classics”, and it is clear that his affinity to motor vehicles finds expression in his involvement both as owner of motor vehicles and as dealer. 10 . Of the six vehicles, four are used regularly at any one time, shared among himself, his wife, and his two children. Two of the vehicles are described as “summer cars”, and are not typically driven in the winter. Likewise, two cars are described as “winter cars” and are typically not driven in the summer. 11 .

Taking advantage of his status as a used car dealer and owner of dealer plates, he routinely affixes those to whatever vehicles are being driven at that time. The vehicles are owned and insured by the business. He does indicate that having the vehicles insured by the business represents a significant financial advantage to him, by comparison with insuring them in the personal capacity of the various operators. 12 .

He further stated that he has found it necessary to remove the dealer plates from the vehicles when they are parked on his property but not being used, as he has had other plates stolen, since they are otherwise only attached by magnets and are easily removed. 13 . Finally, he advises that there is no available enclosed space for him to locate any of the un-plated vehicles. 14 . He does confirm that each of the vehicles is, ultimately, for sale. Specifically, he declares that “If someone offers me one hundred thousand dollars for a vehicle that is worth ten thousand dollars, then of course it is for sale”. 15 .

In the evidence before the Court, there is nothing to suggest that anyone other than the defendant and, possibly, his son are involved directly in the business. There is no evidence before the Court as to whether the defendant’s wife and daughter are involved in the business. 16 . Clearly, the defendant opposes the enforcement of the By-law. He believes that the matter is the result of a complaint by a “busy-body” neighbour, and otherwise has no merit. He has communicated, apparently, with City officials to express his opposition to the By-law, as it is being enforced.

That said, he did not exercise his option to Appeal the Order, as set out in the Order document and pursuant to the provisions of the Building Code Act . 17 . In a curious twist, the defendant did provide evidence, by way of “reply evidence”, that is, after being cross-examined, that he did in fact remove all un-plated vehicles from his property on the compliance date set out in the Order.

He further acknowledges that he did this only for the purpose of establishing his claim that he did in fact comply with the Order, and that he otherwise has no intent to comply with the Order, given his view that it is inappropriate.

The Positions of the Parties 18. In addition to the position set out in the questions above (at paragraph 6), the defendant believes that the intent of the By-lawshould be considered when determining whether he has breached. This view was set out more through cross-examination of theprosecution witness, and was not specifically referenced in submissions. Specifically, he relies on the

preamble to the charging section,which indicates it is enacted “so as to prevent fire, accidents or health hazard”. As a result, he argues that the alleged breach should beconsidered in light of the fact that all vehicles are operable, maintained in good condition, operated from time-to-time, and, whenoperated, plated (albeit with dealer plates). As a result, in his view, there is nothing wrong with parking the vehicles on his property,even when they are not plated. There is nothing about the subject vehicles that makes them either a fire or health hazard. 19.

The prosecution argues that the facts are simple, the By-law unambiguous and enforceable, and reliance on the facts in this caseshould result in a conviction. 20. In the prosecution view, there is no legal support for Mr. Ulman’s proposition with respect to the use of a purported “American”spelling of the word “license” as opposed to the presumably more appropriate “Canadian” spelling. 21. Prosecution further relies on the common usage of “license” as a commonly understood description for the plate normallyaffixed to motor vehicles. 22.

Further, the prosecution argues that to give weight to the proposition that the defendant could frustrate the intention of the By-law by means of pro forma compliance on date described in the Order as the “Compliance Date” and then simply return to the pre“compliance” status and bringing back the offending un-plated vehicles, would render enforcement impossible. It offends “commonsense” to adopt such an approach. 23. Neither the prosecution nor the defendant offered any legal precedents in support of their positions, notwithstanding that theprosecution recognized the impact of an adverse ruling. 24.

Prosecution did not address the issue of the intent of the By-law. Court’s Analysis 25. As set out above, the facts in this case are not materially in dispute. The question turns on various

interpretations.

In addition,the Court finds itself required to consider the combination of facts that includes the defendant’s assertion that he did in fact comply (onand only for the duration of the compliance date set out in the Order), that he routinely returned the property to a state that, on its facewould put him in breach of the By-law, and the prosecution evidence that the Property Standards Officer did not in fact attend on thedate described on the Order as the Compliance Date but did attend and observe on-going non-compliance on numerous dates startingapproximately one month after the compliance date. 26.

Dealing first with the issues of the legitimacy of the By-law, the defendant did not suggest how this Court should proceedshould it adopt his view with respect to the use of a “foreign term”. Nor did he offer any basis for establishing that the term “license” isan “American” word. It is noteworthy that the Highway Traffic Act uses the spelling “license” (which, undoubtedly, is the reason for itsadoption by the municipality). Even if there were compelling evidence that the term might be “foreign” (and there is not), there isnothing to indicate what the Court could or should do about this.

As a result, my answer is that the term “license” is in no way defective. 27. In considering how to approach the second and third points, I have turned to the decision of the Supreme Court in Rizzo & RizzoShoes Ltd. (Re) (SCC), [1998] 1 S.C.R. 27, in which the Court wrote concerning statutory

interpretation: Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997); RuthSullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 28. In this context, the second question must be answered by affirming that the law is enforceable as written. Even Mr. Ulmanconcedes that in common usage, the plate normally attached to motor vehicles to demarcate registration is called a “license plate”, thatthe issuing office is usually referred to as the licensing office, even if, as he contends, that is mistaken in light of a strict reading of thestatute. 29.

I believe that Mr. Ulman is mistaken in his submissions with respect to the use of his dealer plates. Even if he is entitled to usethem for personal purposes, he is not excused from keeping those plates mounted to his cars when they are away from the dealer lot,even if for reasons of “public security” as he argues. If the vehicle is on the road, it should be plated, and if Mr. Ulman has challenges insecuring them, then he must find a suitable solution. 30. With respect to the issue of compliance, I believe that there are two steps required.

First, I must determine whether I accept thedefendant’s evidence that he complied. Should I find that he did, I believe it appropriate to determine the impact of the defendant’sevidence that he did so on the compliance date (but then, quite deliberately, returned to a state of non-compliance), together with theprosecution evidence of non-compliance on dates starting approximately one month after the compliance date. 31. In approaching the question of Mr. Ulman’s evidence, I am mindful of a number of factors. First, he did not provide this

evidence in his evidence-in-chief, nor did the issue arise while he was being cross-examined. Indeed, it arose almost as an afterthought in the form, putatively, of reply evidence. This evidence was certainly not something he could not have known or provided in evidence- in-chief, nor was there anything in the course of cross-examination that would have triggered recall of this omitted evidence. 32 . He clearly had a motive for introducing this evidence; however, it should have been introduced in his evidence-in-chief.

I am mindful that he was self-represented; he had notes on which he sought to rely, however, he did indicate that he was fully fluent in the facts of his case and did not propose to qualify his notes. It was clear that he was looking to his notes more for the purpose of capturing his submissions rather than evidence. 33 . I am also mindful of his demeanor as well as his approach to the charge. I found him to be incredulous that the prosecution would proceed with this matter, which he considered to be the result of interference in his life by “busy body neighbours”.

He indicated that he believes he should be able to maintain his property as he wishes without outside interference. He believes that the By-law is inappropriate, as it includes “unlicensed” vehicles (read by the Court to mean un-plated vehicles), which in this case do not adversely impact on the “clean and reasonable condition”, prevent fires, accidents or create health hazards. 34 .

That said, there is no information before the Court that he appealed the Order as would have been his right and about which he was informed as part of the Order (I am mindful that he appeared to have communicated with someone at the City to express his concerns and/or objections to the way the By-law is written, however, there is nothing that would lead me to conclude that such correspondence amounted to an appeal of the Order). There was no reason offered for not appealing the Order. 35 . As a objective matter, Mr. Ulman asserts that he complied with the Order.

From the perspective of an objective observer, however, this would amount to no more than pro forma compliance, with the intent of frustrating the Order itself. 36 . As a result, his credibility with respect to compliance is suspect.

He had no desire to comply; he believed the Order was inappropriate; he failed to exercise a right to appeal the Order as was his right; he did not indicate on what date he returned to non- compliance with the By-law, which may have occurred on the very day following the compliance date; he has repeatedly failed to comply with the Order since the compliance date; he only made the claim to compliance in the course of “reply evidence” after the completion of cross examination by the Prosecutor. 37 . As a result, I am left highly suspicious of his claim to compliance. 38 .

Notwithstanding that, assuming for a moment that I accept his evidence (which I am not overly inclined to do), I would be left with the question of whether evidence would rebut the Prosecution and put proof of the charge against Mr. Ulman in doubt. Further, it may also raise the question of whether his actions amount to due diligence. 39 . To get to the answer to the first of these points, I ask “what is the nature of the term ‘compliance date’”?

Clearly, the “compliance date” is provided for the benefit of the defendant, and forestalls action by the municipality while the defendant is afforded time to bring himself (in this case) into compliance. After the “compliance date”, the municipality is free to pursue further remedies against the defendant. 40 . In this case, the evidence is that the defendant “complied” on the latest date available to him, as reflected by the “compliance date” on the Order. The By-law Enforcement Officer did not attend on that date, and is unable to verify that “compliance” had been achieved. 41 . Had Mr.

Ulman legitimately sought to comply, he might have sought a Compliance Certificate, confirming his compliance (as provided for in the s.15.5(1) of the Building Code Act ). It is possible he may not have known this, as there is nothing in the Order that refers to this. 42 . However, I also suspect (there is no evidence on this point), that had Mr. Ulman sought such a Certificate, it may well have contained conditions such as on-going compliance. In this case, the post-compliance-date behaviour would certainly have established a breach of either the Order or any Compliance Certificate. 43 .

I am also left to wonder what might have happened had the evidence been different. For example, were the evidence that Mr. Ulman had complied on the day he received the Order and then did as he has now described and returned to a state of non-compliance and the Officer had in fact attended on the actual compliance date and discovered that the situation had again established that the breach was occurring, would the defendant be entitled to an acquittal? I suspect not. 44 .

From still another perspective, taking the approach as flows logically from the defence position, if I find that there was at least pro forma compliance on the “compliance date”, and that any new breach requires that the defendant again be given the latitude of a new Order with a further period of time to again bring himself into compliance, then the result would be to grant a form of official “sanction” to non-compliant behaviour for the duration of time between any such Order and the included compliance date. This surely could not be the intent of the statutory framework.

And, of course, it would betray the reason for allowing, fundamentally, a grace period during which the defendant is allowed to bring himself into compliance without immediate consequences. Otherwise, municipalities would be advocating for the ability to charge offenders without affording them time to come into compliance voluntarily. 45 . I am reminded by a recently released appeal decision of the underlying principles set out for the Provincial Offences Act . In R. v. Howse , Justice Pugsley reaffirms the principle “that the POA is

an act intended to be a simple procedure for simple and very minor offences”. 46 . Were I to accept the proposition set out by Mr. Ulman, I conclude that it would in fact betray these principles, undermine the statutory framework, ratchet up costs of public administration, and allow some individuals to unreasonably skirt their responsibilities. 47 . As a result, and mindful of the principles of statutory

interpretation set out above, I conclude that the “compliance date” set out in the Order is simply a marker in time. While I acknowledge that the municipality’s case might have been strengthened by inspection

on or near to the compliance date, I am satisfied that this case is not one in which the eventual dates of inspection are far enough away to require starting new enforcement action by way of a new Order. 48 . That said, there may be a situation, such as an extended period of time (perhaps such as a year or more) that necessitates issuance of a new Order. However, that is not the case before me. 49 . I note as well that Mr. Ulman also invited the Court to consider the purpose of the By-law and whether there is or needs to be evidence of a risk to public health or safety, in arriving at a decision.

The general proposition that the By-law is designed to “to prevent fire, accidents or health hazard” is set out in the pre-amble to s.28 of the By-law. However, I note that the By-law specifically enumerates “unlicensed vehicles” in the list of items that is not to “be placed, stored or left on land”.

Given this specific inclusion of “unlicensed vehicles” (read as “un-plated”), and I have been given no jurisprudence for ignoring such a specific inclusion, such as by way of a stay pursuant to the Charter (and there is no such application before the Court), then I have no basis for “reading out that express provision. I accept that the By-law should be interpreted as found and Mr. Ulman needed, once again, to proceed by way of an appeal against the Order, by advocating with his elected municipal leaders for a change to the By-law or, potentially by way of a Charter application in the right manner and forum. 50 .

I conclude that the City has proven all the elements of the charge beyond a reasonable doubt. 51 . It is still open to Mr. Ulman to establish a defence of due diligence. Given Mr.

Ulman’s statements regarding the merit and propriety of the By-law, his comments regarding the inspiration for this prosecution (busy body neighbours), his general attitude toward compliance with requirements relating to personal use of vehicles licensed to his used car business and his apparent enjoyment of personal benefits arising out of incurring those vehicles through the business rather than in his personal capacity (owing to the savings that he apparently enjoys), including extending such privileges to family members who may (or may not be engaged in the activities of the business), and his concession that he fairly quickly returned the vehicles to the property when they continued plated in the same fashion, I find that he has failed to establish a defence of due diligence with respect to the offence before the Court. 52 .

As a result, I enter a conviction. Issued at City of Mississauga, 11 September, 2012 Donald Dudar Justice of the Peace _____________________________ His Worship Donald Dudar Justice of the Peace