City of Mississauga v. Aregers, 2013 ONCJ 269

Citation: City of Mississauga v. Aregers , 2013 ONCJ 269 IN THE MATTER OF the Building Code Act, 1992, S.O. 1992, c. 23 . And City of Mississauga Bylaw 654-98 (Property Standards) Between The Corporation of the City of Mississauga prosecutor and George A. Aregers defendant Ontario Court of Justice Mississauga, Ontario Quon J. P. Reasons for Ruling on Motion for Non-Suit Trial held (prosecution case only): March 8 and October 11, 2012 Ruling rendered: May 16, 2013 Charge: Fail to comply with an order dated November 2, 2009, contrary to s. 36(1) (

b) of Building Code Act, 1992, S.O. 1992, c. 23 . Counsel:

R. Craig, prosecutor for the City of Brampton L. Pandy, counsel for the defendant Cases Considered or Referred To: Atkinson v. State Farm Fire & Casualty Co., [1981] O.J. No. 2491 (QL) (O.H.C.), per Hollingworth J. Bozanis v. Clarington (Municipality), [2004] O.J. No. 1932 (QL) (Ont. S.C.J.), per Sheppard J. Lumbermens Mutual Casualty Co. v. Stone, (SCC), [1955] S.C.R. 627 (S.C.C.). R. v. Charemski (1998), (SCC), 123 C.C.C. (3d) 225 (S.C.C.). R. v. Fontaine (2004), 2004 SCC 27 , 18 C.R. (6th) 203 (S.C.C.). U.S.A. v. Sheppard (1976), (SCC), 30 C.C.C. (2d) 424 (S.C.C.).

Statutes, Regulations and Rules Cited: Building Code Act,1992, S.O. 1992, c. 23, ss. 15.1, 15.2, 15.2(2), 15.2(2)(d), 15.2(3), 15.3, 15.3(1), 27, 27(1), 27(2), 36(1)(b), and36(3). Municipal Act, 2001, S. O. 2001, c. 25, ss. 390 and 391. Provincial Offences Act, R.S.O. 1990, c. P.8, s. 12(1). Rules Of Practice And Procedure for City of Mississauga’s Property Standards Committee, s. 3.1(2)(c), online: City of Mississauga website << http://www.mississauga.ca/file/COM/propertystandards_rules.pdf>>, Bylaws Cited: The Corporation of the City of Mississauga By-Law 654-98 (Property Standards), ss. 6(1)(c), 28 and 28(4).

The Corporation of the City of Mississauga By-Law 299-04 (Appointment Of City Employees As Municipal Law Enforcement

Officers). The Corporation Of The City Of Mississauga Transportation And Works Fees And Charges By-Law 431-08,

Schedule A., online: City of Mississauga website << http://www.mississauga.ca/file/COM/transportationandworkfees2009.pdf >> Reference Material Considered or Cited: Paciocco, D.M. and Steusser, L. The Law of Evidence, 6ed. (Toronto, Ontario: Irwin Law Inc., 2011), p. 541.

Exhibits entered: Exhibit "1" - copy of Tax Assessment Roll with attached legend (for assessment compiled in the year 2009) printed on November 11, 2009, for property located at 1671 Brentano Boulevard, Mississauga, which indicates that George William Aregers is the registered owner of the property and whose mailing address is [removed for privacy], Etobicoke. In addition, the property is 4.24 acres with a frontage of 49.52 and is an irregular shaped property. Under the heading OTV (Owner/Tenant/Vacant) it is indicated as “O”, which means “Owner”.

Under the heading Tax Data, it is indicated that the property is “SRA” meaning “Special Rate Area”. Under the category TTL (Tenant Tax Liability) which is under the heading Tax Data, the box is blank. (2 pages). Exhibit "2" - Certified true copy of City of Mississauga By-Law 654-98 ( Property Standards) (25 pages). Exhibit "3" - Certified true copy of City of Mississauga By-Law 299-04 ( Appointment bylaw of enforcement officer) (4 pages). Exhibit "4" - Property Standards Order (issued pursuant to s. 15.2(2) ) dated November 2, 2009, issued by enforcement officer/inspector James C.

Hall to George Aregers, owner of property located at 1671 Brentano Boulevard, Mississauga, requiring the owner “remove all unsightly storage and debris from property” . The order also indicates the property was inspected on October 19, 2009, and that the by- law contravened was s. 28 of Mississauga Bylaw 654-98. The compliance date was indicated as December 7, 2009. (3 pages).

Exhibit "5" - Canada Post registered receipt with item #79 416 235 866 (undated) indicated that registered letter containing Property Standards Order was provided to Canada Post by sender indicated as “Enforcement - City of Mississauga” with address of 1671 Brentano Boulevard, Mississauga L4X 1A7, and indicating that it was to be sent to George Aregers to address of 1671 Brentano Boulevard, Mississauga L4X 1A7 (1 page).

Exhibit "6" - printout of Canada Post tracking log for tracking number “79416235866” obtained through Canada Post tracking system in regards to movement of registered letter containing Property Standards Order sent on November 2, 2009, by City of Mississauga Enforcement to George Aregers to address of 1671 Brentano Boulevard, Mississauga. It is also indicated on the document that the registered letter containing the property standards order was given to Canada Post at the post office located at Rockwood Mall.

The document also indicates that the “item refused by recipient” and “Item being returned to sender” at 13:01 on November 21, 2009, and that it had been available for pickup at the post office as of November 3, 2009, at 15:25, that “return to sender attempted” at “AM” of November 3, 2009, and that “card left indicating where item can be picked up” at “AM” of November 3, 2009. The tracking document also indicates that the registered letter containing the property standards order was “accepted at the Post Office” at 15:07 on November 2, 2009.

In addition, when the registered letter that had been sent to George Aregers had been picked up and returned to the sender, it was signed for by “B Kennedy” at 08:52 on November 23, 2009. (1 page). Exhibit "7" - copies of 29 black and white photographs of property located at 1671 Brentano Boulevard, Mississauga, taken by Enforcement Officer James Hall on March 30, 2010 (29 pages). Exhibit "8" - copies of 32 black and white photographs of property located at 1671 Brentano Boulevard, Mississauga, taken by

Enforcement Officer James Hall on February 28, 2011 (32 pages). Exhibit "9" - copy of typed notes made by Enforcement Officer James Hall as made from handwritten notes that James Hall had made on October 19, 2009 (2 pages). Exhibit "10" - copy of document prepared by Enforcement Officer James Hall, dated May 3, 2010, regarding information on legal action concerning defendant (2 pages). 1.

INTRODUCTION [ 1 ] Although it has been said that one person’s trash may be another person’s treasure, this is not so under the Mississauga Property Standards Bylaw, especially when that trash is unsightly and stored or accumulated outside on a residential property, and not on one zoned for commercial activity. In this particular regulatory proceeding, a neighbour had complained about the amount and kind of junk at a residential property located at 1671 Brentano Boulevard in the City of Mississauga, in which George Aregers (“the defendant”) is the registered owner.

On October 19, 2009, an Enforcement Officer from the City of Mississauga attended the property to investigate the complaint, and based on his observations, decided that the defendant’s collection of machinery, vehicles, and other materials located on the property were far from being any treasure, but had been instead an array of junk or unsightly storage and debris that contravened s. 28 of the Mississauga Property Standards Bylaw 654-98. [ 2 ] During the inspection of the property, the Enforcement Officer had informed the defendant why the defendant’s property was not in compliance with the Property Standards Bylaw, and had also directed the defendant to clean up and properly dispose of the accumulated junk and debris.

However, at the time, the Enforcement Officer did not make or issue a Property Standards Order to the defendant under s. 15.2(2) of the Building Code Act, 1992 , S.O. 1992, c. 23, to clean up the property and to properly dispose of the unsightly storage and debris. [ 3 ] But, two weeks later, after not hearing from the defendant about having completed the cleanup, the Enforcement Officer who had inspected the defendant’s property on October 19, 2009, decided to formally make or issue the s. 15.2(2) Property Standards Order on November 2, 2009, ordering the defendant to clean up the property and to properly dispose of the unsightly storage and debris by December 7, 2009.

The Property Standards Order was then sent on November 2, 2009, by registered mail to the defendant, using the 1671 Brentano Boulevard, Mississauga address, instead of using the defendant’s mailing address, which was an Etobicoke address that had been listed on the Mississauga Tax Assessment Rolls. [ 4 ] The November 2 nd Property Standards Order also contained information advising the defendant that he had 14 days after being served with the Order to file an appeal, and that it would require a non-refundable appeal fee of $386.40 to be paid, in order to file the Notice of Appeal with the Municipal Committee that would hear the appeal.

However, the registered letter containing the Order was not actually delivered to or accepted by the defendant, but as the post office tracking logs of the movement of the registered letter indicates, the defendant appears to have first attempted a “return to sender” action on November 3, 2009, when the post office attempted to deliver the registered letter to the defendant.

And, then on November 21, 2009, the defendant appears to have attended at the post office where the registered letter was being kept, but had refused to sign for and accept delivery of the registered letter, and the registered letter containing the Order was then returned by the post office back to the City of Mississauga Enforcement Branch on November 23, 2009. [ 5 ] Then about four months later, on March 30, 2010, the Enforcement Officer, who had issued the Property Standards Order, re- attended the property to inspect it for compliance with the request and order to clean up the property of the unsightly storage and debris.

However, based on the observations and assessment of the Enforcement Officer, the defendant’s property had not been cleaned up so as to be in compliance with the Mississauga Property Standards Bylaw, so the Enforcement Officer returned the next day, on March 31, 2010, and charged the defendant with not complying with the Property Standards Order that had been issued on November 2, 2009, contrary to s. 36(1) (

b) of the Building Code Act, 1992 , S.O. 1992, c. 23. The defendant was also served with a

Part I Notice of Offence with a set fine of $305. [ 6 ] The defendant then filed a Notice of Intention to Appear on April 6, 2010, at the Mississauga Provincial Offences Court. A Notice of Trial was then issued to the defendant on April 20, 2010, with a trial date scheduled for September 30, 2010. However, on July 8, 2010, the defendant’s legal counsel requested an administrative adjournment of the scheduled trial date and the trial was administratively rescheduled to November 25, 2010.

On November 25th, the defendant’s legal counsel then requested a further adjournment and the trial was rescheduled to March 10, 2011. However, on March 10th, the trial did not go ahead and it was once again adjourned to July 14, 2011, for a possible resolution of the charge. On July 14th, the matter was not resolved and, once again, the matter was set down for trial for March 8, 2012.

[ 7 ] Finally, after all those adjournments, the trial of the defendant’s charge finally commenced on March 8, 2012. However, the trial could not be completed on March 8th and the trial was then adjourned to October 11, 2012. On October 11th, after the prosecution closed its case, the defendant made a motion for non-suit. [ 8 ] In his motion for non-suit, the defendant contends there are three grounds for which his motion should succeed. They are the following:

a) that the Enforcement Officer had improperly issued the Property Standards Order on November 2, 2009, by failing to return to the property after the date of the initial inspection on October 19, 2009, and confirm whether the property had been cleaned up or not cleaned up, prior to issuing the order.

b) that the Property Standards Order issued on November 2, 2009, had been defective on its face in two ways: (

i) that the final date for the defendant to file an appeal of the Property Standards Order had not been provided or mentioned in the Property Standards Order, as required under s. 15.2(2) of the Building Code Act, 1992 . (ii) that there is no legal authority to require the defendant to pay the appeal fee of $386.40 in order to file the Notice of Appeal of the Property Standards Order.

c) that the Property Standards Order had not been properly served on the defendant. [ 9 ] After hearing arguments on the motion for non-suit, the ruling on the motion was reserved and the matter was adjourned to May 16, 2013, for the ruling to be rendered. These are therefore my written reasons for the ruling on the motion: 2. THE CHARGE [ 10 ] The defendant is charged with the following

Part I regulatory offence, in which the set fine is $305: On the day of 2010/03/31, 2:30 p.m., George Aregers of 1671 Brentano Blvd. Mississauga, at 1671 Brentano Blvd., Mississauga Ontario, did commit the offence of: Fail to comply with an order dated November 2, 2009, contrary to Building Code Act, S.O. 1992, c. 23, s. 36(1) (b). 3. BACKGROUND [ 11 ] The defendant, George A. Aregers, is the registered owner of a property zoned for residential use that is located at 1671 Brentano Boulevard in the City of Mississauga (see Ex. 1). The area of the property is 10,585.74 square feet.

The lot measures 43 feet at the front and 246.18 feet in depth (see Ex. 1). The mailing address for the registered owner of the property on the Tax Assessment Rolls is not the same as the municipal address of the property in question. The specific mailing address for the registered owner is listed as being in the City of Etobicoke (see Ex. 1). [ 12 ] The defendant’s property had first come to the attention of the City of Mississauga Enforcement Division because of a complaint made about the defendant’s property by a neighbor on October 8, 2009.

James Hall, an Enforcement Officer employed by the City of Mississauga, was then assigned to investigate the complaint. On October 19, 2009, Hall attended at the defendant’s property, which is an irregular lot that is approximately 4.24 acres in size (see Ex. 1).

Hall also met with the defendant and while they walked together around the defendant’s property during Hall’s inspection, Hall had informed the defendant about s. 28 of Mississauga Property Standards Bylaw 654-98, which governs unsightly storage and debris on properties in Mississauga, and that the defendant’s property did not comply with that bylaw, which had been based on Hall’s observations of various machinery, unlicensed vehicles, auto parts, building

material, wood, Styrofoam, wires, batteries, and other unsightly materials and debris located and stored on the property. [ 13 ] Hall also explained to the defendant what were the deficiencies and why the property did not comply with s. 28 and also instructed the defendant on what had to be done to rectify the situation and how to put the property into compliance with the Property Standards Bylaw and then directed the defendant to clean up the property and remove or dispose of the unsightly storage and debris.

The defendant, at the time, had also appeared to Hall to be cooperative and agreeable to cleaning up the property. [ 14 ] And, even though the defendant’s property is a large residential property that is somewhat like a farm, the Property Standards Bylaw nevertheless requires owners of these large farm-like residential properties located in the City of Mississauga to keep their properties esthetically pleasing, safe, free of health hazards, and without deleterious effect to the environment, just like their neighbours who own smaller residential properties are required to do, and as such, cannot use their properties simply as a repository for junk, abandoned vehicles, and unsightly refuse. [ 15 ] Then, after two weeks had passed and after not hearing from the defendant about the progress in cleaning up the property, Hall decided to formally direct the defendant to clean up the property and remove or dispose of the unsightly storage and debris by issuing a Property Standards Order to the defendant under s. 15.2(2) of the Building Code Act, 1992 , on November 2, 2009. [ 16 ] Moreover, Hall did not re-attend or re-inspect the property between the period of October 19, 2009 to November 2, 2009, before he made the decision to issue the Property Standards Order on November 2nd .

On the other hand, the defendant did not call Hall during that period in regards to having cleaned up the property or for the purpose of requesting an extension or to inquire about or to seek clarification of any issue about cleaning up the property. [ 17 ] In addition, Hall had arranged to have his office staff send out the Property Standards Order to the defendant by registered mail to the address of 1671 Brentano Boulevard , Mississauga, which is the municipal address of the property in question, and not to the mailing address of the defendant that had been listed on the Tax Assessment Rolls for the City of Mississauga (see Ex. 1).

The Property Standards Order also set out the basis for the non-compliance and directed the defendant to clean up his property of the unsightly storage and debris by December 7, 2009. The Order also provided information that the defendant could appeal the November 2 nd Order to the Municipal Committee set up by the City of Mississauga to hear such appeals, by filing a Notice of Appeal within 14 days of receiving the Property Standards Order.

Moreover, the Order had also advised the defendant that if the Order is not complied with, then the City of Mississauga would either take legal action or arrange to have the property cleaned up, in which case, the cost of the cleanup would be added to the tax account for the property. [ 18 ] Furthermore, from the Canada Post receipt (Ex. 5) and the Canada Post tracking logs of the movement of the registered letter containing the Property Standards Order (Ex. 6), the registered letter had been registered with and received by the post office on November 2, 2009.

However, the tracking logs indicate that the post office was not successful in delivering the registered letter containing the Property Standards Order to the defendant on November 3, 2009, as it appears that the recipient (defendant) had attempted a “return to sender” request. Furthermore, these same logs also indicate that on November 3 rd the post office person had left a card at the defendant’s property with information on where the defendant could pick up the registered letter.

Then the logs indicate that on November 21, 2009, the recipient (defendant) appeared to have attended at the Rockwood Plaza post office where the registered letter was being kept, but the recipient (defendant) had refused to sign for or accept delivery of the registered letter.

The post office then returned the registered letter containing the November 2 nd Property Standards Order back to the Enforcement Division of the City of Mississauga on November 23, 2009, as being undelivered. [ 19 ] After not hearing anything further from the defendant, Enforcement Officer Hall returned to the defendant’s property about four months later, on March 30, 2010, to inspect the property for compliance with his request and formal directive to clean up the property.

However, based on his observations that day, Hall’s assessment was that very little had been done to remove or clean up the unsightly storage and debris or to comply with the November 2, 2009 Property Standards Order . Hall also took 29 photographs of various areas of the defendant’s property of what Hall had viewed as the non-cleanup of the unsightly storage and debris to substantiate his assessment . [ 20 ] Hall then returned the next day, on March 31, 2010, and charged the defendant for contravening s. 36(1)(

b) of the Building Code Act, 1992 , S.O. 1992, c. 23., for not complying with the Property Standards Order that had been issued on November 2, 2009. He also served the defendant personally on March 31, 2009, with a

Part I Notice of Offence that set out the out-of-court fine as $305. [ 21 ] Furthermore, the trial of the defendant’s charge was held over two days: March 11, 2012 and October 11, 2012. After the prosecution finished presenting their case, the defendant brought a motion for non-suit. After the motion for non-suit was argued, the ruling was reserved and adjourned the matter to May 16, 2013, for the ruling to be rendered.

(

a) SUMMARY OF TESTIMONY

(1) Testimony of James C. Hall, an Enforcement Officer for the City of Mississauga. [ 22 ] James Hall testified that he is an Enforcement Officer for the City of Mississauga and has been in that capacity for over 24 years.

He also said that he is presently with the Compliance and Licensing Department. [ 23 ] In regards to the present charge, Hall said the original complaint about the defendant’s property had been received by his department on October 8, 2009, but it was not until October 19, 2009, when Hall had first attended the defendant’s property located at 1671 Brentano Boulevard in Mississauga to inspect the property because of the complaint that there had been unsightly storage and debris on the property . [ 24 ] Hall also described the property as not only being a residential property, but that it also had the likeness of a farm property.

He further said the property at 1671 Brentano Boulevard is a huge property that is adjacent to the Queen Elizabeth Way highway, but does not know its actual dimensions. He also said the property is a deep and wide property. [ 25 ] In addition, Hall said he knows the defendant from past dealings and then pointed to the defendant in the courtroom as being George Aregers. [ 26 ] Furthermore, Hall said the defendant had been on the property on that day and that he had met with the defendant.

However, he does not know how long he had been at the property, but that it had taken about 30 minutes to walk around the property with the defendant. He also said he had discussions with the defendant about the property being in violation of the land

section of the Property Standards Bylaw, the defendant’s obligation to clean up the property, and what would be needed to be done by the defendant. Furthermore, Hall said that he could request action be undertaken by the defendant, recommend court action, or recommend that the City of Mississauga clean up the defendant’s property with the cost of the cleanup being borne by the defendant. In addition, Hall said the defendant seemed willing to do what had been asked of the defendant to do with the property, which would be to take steps to remove all unsightly storage and debris.

On the other hand, he does not recall any discussion on that day with the defendant about any time limits to clean up the property. [ 27 ] Hall also said he had walked the property with the defendant and had viewed unsightly storage and debris. In addition, Hall said he had advised the defendant about the violation concerning the unsightly debris, which consisted of various machinery, unlicensed vehicles, auto parts, building material, wood, Styrofoam, wires, batteries, and other unsightly materials and debris.

In addition, Hall said he does not recall the defendant having explained to Hall why the defendant needed the materials. Hall further said he had advised the defendant that the unsightly storage and debris would have to be removed because it contravened property standards. Furthermore, he said that the defendant did not object to removing the material in question. [ 28 ] However, Hall said he could not determine if the machinery he had observed was being used or operable, but to him the machinery appeared old, rusted, and not being in use.

Moreover, he said the two boats, old tractor, old windows, doors, plastic, and fencing he observed on the property, also did not appear to be used in a business. He also said that he could not tell whether any business was being run on the property, nor did he recall having a discussion with the defendant about the property being used to operate a business. [ 29 ] Furthermore, Hall said the unlicensed vehicle he had observed also appeared to be in the same position, as it had been before, when he had first attended the property.

However, he also pointed out that the tractor that he had earlier observed was not there after he had re-attended. On the other hand, he said the cars had been bearing expired license plates. [ 30 ] Moreover, as to what he had meant by the term “unsightly storage”, Hall explained that he had been referring to items not normally seen in someone’s yard.

On the other hand, he said the items that he did observe on the defendant’s property are what one would normally find inside someone’s house, but not thrown in the person’s yard. [ 31 ] Hall also said that on November 2, 2009, he prepared a Property Standards Order (see Ex. 4) that was addressed to the defendant,

“George Aregers”, based on the certified Tax Assessment Roll (Ex. 1), and had the administrative staff send the Order to the defendant by registered mail to the municipal address of the defendant’s property, which is 1671 Brentano Boulevard in Mississauga. [ 32 ] However, before issuing the Property Standards Order on November 2, 2009, Hall said he did not go onto the defendant’s property between October 19th and November 2nd.

In explaining why he did not re-attend the defendant’s property before issuing the order, Hall said that the defendant could have called Hall to say the property was now in compliance, whereby Hall said he would then re-inspect the property and close the file if there was compliance.

Additionally, Hall said that he had reasoned that there had been such a tremendous amount of debris for which he believed, would take a lot of effort from the defendant to complete the cleanup; but in any event, he said he had not heard from the defendant that the defendant had complied with the required cleanup. [ 33 ] Hall also said the November 2 nd Property Standards Order had contained the legal description of the property; Hall’s name and telephone number; the 1671 Brentano Boulevard, Mississauga address; and the compliance date of December 7, 2009, in which to carry out repairs and to remove all unsightly storage and debris from the property on or before that date.

Furthermore, he said the Property Standards Order informed the defendant that the defendant’s “failure to comply with this ORDER by the compliance date shown, may result in the instigation of legal action and/or the subsequent clean up of the property by City staff and/or their contractor” and that the “cost of the cleanup will be added to the tax roll for the property and collected as real taxes.” [ 34 ] Furthermore, Hall explained that the legal definition of what the non-conformity had been for the defendant’s property, in respect to the unsightly storage and debris, is contained in s. 28 of Mississauga Property Standards Bylaw 654-98.

As to whether he had observed this non-conformity at the defendant’s property, he specified that he had, and that it had consisted of an accumulation of unsightly storage, debris, wood pallets, steel rails, aquariums, old windows, and doors. [ 35 ] Moreover, Hall said that he had not personally delivered the letter containing the Property Standards Order to the post office on November 2, 2009, but had arranged for office staff from his department to deliver and register the letter at the post office.

However, he said he had initialled the document marked as Exhibit 4 and that he had also received a copy of the document that verified the letter containing the Property Standards Order had been sent out by registered mail (see Ex. 5). He also said that he would have given the Property Standards Order document to the office staff and that they would have sent it out.

In addition, he said he had personally obtained a Canada Post printout (see Ex. 6) from the Canada Post internet site, which tracked the location and movement of the registered letter that contained the Property Standards Order, by date and time and by whether the registered mail had been delivered or refused to be accepted by the defendant. Furthermore, he said this tracking log indicated that the letter containing the Order had been delivered to and accepted by the Post Office in Mississauga, on November 2, 2009, at 15:07 hours.

He also said the tracking log indicates that on November 3, 2009, at 7:28 hours the “item went out for delivery”; that at 11:48 hours on November 3, 2009, the item was being prepared for transfer to the Rockwood Mall Post Office; that in the morning of November 3, 2009, that a “return to sender attempted” and a “card left indicating where item can be picked up”; and that on November 21, 2009, at 13:01 hours, the “item refused by recipient” and “item being returned to sender”.

Finally, he said the Canada Post tracking log indicated that the item had been successfully returned to the sender at 08:52 hours on November 23, 2009. [ 36 ] Hall also said that the tracking log (Ex. 6) did not provide any proof that the defendant had actually received a copy of the Property Standards Order. [ 37 ] Furthermore, in respect to the final date in which the defendant could file an appeal of the Property Standards Order, Hall explained that if the defendant had been physically served with the Order then the defendant would have 14 days after being served with the order to file the appeal.

However, Hall also explained that if the defendant had not been actually served with the order then the defendant is deemed to have been served on the fifth day after the date the letter containing the Property Standards Order had been registered and received by the post office.

In addition, he said that the Property Standards Order would be deemed to be served on November 7, 2009, five days after the letter containing the order was delivered to the post office, which would then mean that the defendant would have until November 21, 2009, which is 14 days after the “deemed” receipt date to file an appeal of the Property Standards Order.

Furthermore, he said that the Property Standards Order also informed the defendant that the defendant had been given until December 7, 2009, to comply with the order. [ 38 ] In addition, Hall had acknowledged that the return address of the sender on the Canada Post receipt (Ex. 5) had been incorrectly stated and that it should have been the address for the City of Mississauga Enforcement Department that should have been written down as the sender’s return address and not the address of the defendant’s property that had been written.

However, he said he would have given the City of Mississauga Enforcement Department’s address to the defendant in the Property Standards Order. In addition, he said he had determined who the legal owner of the property in question had been by searching the Tax Assessments Rolls. He then said the owner of the property located at 1671 Brentano Boulevard, Mississauga was listed as the defendant, George Aregers, whose mailing address was [removed for privacy] in the City of Etobicoke.

Moreover, Hall explained that he did not have the Property Standards Order sent to the listed mailing address in the City of Etobicoke because he said he knew that the defendant lives at 1671 Brentano Boulevard, as the defendant had told him that previously, but is not certain when he had been told of that situation. However, Hall also said he had a prior dealing with the defendant at the 1671 Brentano Boulevard address from a previous complaint made on July 15, 2008, and Hall

further said he had relied on his previous knowledge that the defendant was always there at the 1671 Brentano Boulevard address, and that the defendant had been there at that property in the past. In addition, it had appeared to Hall that the defendant also lives on the property in question. Furthermore, he said that a Property Standards Order regarding the same property and on the same issue had been issued by Hall to the defendant in 2008. [ 39 ] Moreover, Hall said he did not recall posting the Property Standards Order on the property, as provided for under the Building Code Act, 1992 .

He said he had done this procedure in the past, but does not recall doing it for this occasion, nor had he recorded in his notes that he had posted the order. [ 40 ] Hall also said that he next attended the defendant’s property on March 30, 2010.

However, he said that between the date he had first attended the defendant’s property to the second time he had attended at the defendant’s property on March 30th, he said the only person who had contacted him about the defendant’s property and who he had spoken to about the defendant’s property had been with the person who had made the complaint about the defendant’s property at the Bylaw Office, but does not remember having any dealings with the defendant during that period, nor does he have any indication in his notes that he had. [ 41 ] Furthermore, when Hall had attended at the defendant’s property on March 30, 2010, he said that his purpose had been to re- inspect the property for compliance with the November 2 nd Property Standards Order.

In addition, he said he had observed the defendant on the property on that date, and had walked the property with the defendant, where he said he had noticed very little change to the property since the first inspection date of October 19, 2009.

Furthermore, Hall said he had a lengthy discussion with the defendant and had advised the defendant that the unsightly storage and debris had not been cleaned up as required by the Property Standards Order that Hall had issued to the defendant. [ 42 ] In addition, Hall said he took 29 photographs of the defendant’s property (see Ex. 7) while walking with the defendant on March 30, 2010, that showed two large boats, a tarped piece of machinery, a rusted tractor, an unlicensed car, garbage cans full of debris, a glass aquarium, brake parts, another vehicle with a validation sticker showing April 2008, machinery, an air conditioning unit, a grass trimmer, wires, steel pipes, automotive batteries, hoses, ropes, a radiator, metal, plastic jugs, carpets overhanging on a fence, motors, a washing machine, boards, an old motorcycle, tire rims, fencing and fencing parts, a stack of rotten wooden boards, metal rails, gas cans, a lawn mower, unsightly storage in laundry baskets, old chairs, a leaf blower, a blender, an old ladder, tarps, old tree wood, pallets, sheets of Styrofoam, an old wheel barrow, an old bulldozer, wooden beams, shelving, scrap metal, milk boxes, propane tanks, and screens. [ 43 ] Then, on March 31, 2010, Hall said he re-attended the defendant’s property and spoke with the defendant and issued a

Part I provincial offences ticket to the defendant and served the ticket personally on the defendant. He also said he had advised the defendant that the defendant was being charged with not complying with the November 2 nd Property Standards Order that had been issued, which had required the defendant to clean up the unsightly storage and debris and how long he had to do it. Moreover, he said he did not see any change to the defendant’s property on March 31 st , from the day before.

He also said that he had discussed the situation about the defendant’s property with his supervisor, Darrell Bell, on March 31 st . [ 44 ] Furthermore, Hall said his next dealing with the defendant’s property had been on February 28, 2011. He said he attended at the defendant’s property to see what had been done on the property and if there had been any clean up. However, he said that there is nothing in his notes that he had spoken to anyone on that date. In addition, he said he took 32 photographs of most of the defendant’s property (see Ex. 8) on February 28 th , between 2:20 and 2:34 p.m.

Moreover, he noted there had been some cleanup, but there had been still a lot of debris and unsightly areas that needed to be cleaned up. He also said there had been still a tremendous amount of unsightly storage and debris. He further opined that less than half of the unsightly storage and debris, which he had originally observed, had been cleaned up.

In addition, he said he did not recall having any contact with the defendant from March 31, 2010 to February 28, 2011. [ 45 ] In addition, Hall said that he had been concerned with s. 28 of the Mississauga Property Standards Bylaw, as it pertained to the defendant’s property. He also said the defendant’s property is huge and irregular-shaped and is located between Mississauga and Etobicoke, along the Queen Elizabeth Way highway and that the property goes back 400 to 600 feet. He also said he is not aware of the property being used for crops or orchards, but that the property could be used for that purpose.

He also acknowledged that if the property is cropped and being used as an urban farm, then it would be fair to say that the property would contain functioning tractors on it, or that the owner of the property would own functioning tractors. However, he also logically reasoned that one would then expect that these machines would be operable.

Moreover, he said the Property Standards Bylaw applies nevertheless to all property in Mississauga and that it would not matter whether the property had been a farm or not. [ 46 ] Hall also said he did not test the accumulation of unsightly storage and debris to determine if it was deleterious or bad for the environment, since he does not have environmental testing qualifications.

[ 47 ] Furthermore, even though the compliance date for the defendant contained in Exhibit 4 was for December 7, 2009, Hall said he did not return to the defendant’s property until March 30, 2010. He also said the complainant, who had complained about the defendant’s property, had come into the Bylaw Enforcement Office on March 23, 2010, and had made another complaint about the defendant’s property.

However, he said he is not aware of any steps that his department had taken to deal with a boat on the complainant’s property or about the complainant’s property. [ 48 ] Moreover, when he had attended at the defendant’s property on March 30, 2010, Hall said there had been some change, but that it had not been to Hall’s satisfaction that the property had been cleaned up properly or that it was in compliance. He also said he had talked with the defendant for 35 to 45 minutes on that day, and that they had walked around the property together.

In addition, he said not very much of the unsightly debris had been removed. However, he said he could not determine whether anything had been removed. [ 49 ] In addition, Hall said that he had been the person who had typed up the document for legal action (see Ex. 10). 4. APPLICABLE LAW [ 50 ] The defendant has been charged by the City of Mississauga with contravening s. 36(1) (

b) of the Building Code Act, 1992 , S.O. 1992, c. 23, for not complying with a Property Standards Order that had been issued on November 2, 2009, by failing to remediate or cleanup the property by December 7, 2009, of unsightly storage and debris, which was contravening s. 28 of Mississauga Property Standards Bylaw 654-98 [ emphasis is mine below ]: Offences 36(1) A person is guilty of an offence if the person , (

a) knowingly furnishes false information in any application under this Act, in any certificate required to be issued or in any statement or return required to be furnished under this Act or the regulations; (

b) fails to comply with an order , direction or other requirement made under this Act ; or (

c) contravenes this Act, the regulations or a by-law passed under

section 7. [ 51 ] Moreover, in respect of properties in Mississauga, s. 28 of the Mississauga Property Standards By-Law 654-98 requires that the exterior of a property located in Mississauga, in general, be maintained in a clean and reasonable condition, so as to prevent fire, accidents or health hazard, and in particular, that no wrecked, dismantled, inoperative, discarded, unused or unlicensed vehicles, trailers, machinery or objects or parts thereof be placed, stored or left on land, unless such articles are exempted for business use where such land is zoned for such use and where such articles are placed, stored or left in a manner which avoids an unsafe or unsightly condition deleterious to the neighbouring environment.

Furthermore, under s. 28(4), all accumulations of material, wood, debris or other objects that create an unsafe or unsightly condition, deleterious to the neighbouring environment are required to be removed [ emphasis is mine below ]: 28. LAND 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:

(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, but this does not apply where such articles are required and used for business purposes permitted under

the City's land use by-laws and where such articles are placed, stored or left in a manner which avoids an unsafe or unsightly condition deleterious to the neighbouring environment .

(2) Any part of a yard that is low lying or has been excavated so that it accumulates water, shall be drained, filled and graded so that water drains to a storm sewer or ditch. Swimming pools, ornamental pools and agricultural ponds shall not be included in this requirement.

(3) Every hard surfaced walkway, driveway, parking area or laneway shall be evenly graded and maintained free of potholes or uneven sections.

(4) Dilapidated, collapsed or unfinished structures and all accumulations of material, wood, debris or other objects that create an unsafe or unsightly condition, deleterious to the neighbouring environment, shall be removed .

(5) All grassed and landscaped areas abutting buildings or structures or on vacant lots in developed residential areas shall be cut and maintained in a reasonable condition in relation to the neighbouring environment.

(6) All exterior property areas, including vacant land, shall be maintained to prevent accumulations of dust or dirt from spreading to neighbouring properties.

(7) Notwithstanding subsection (3) of this section, where speed bumps or speed humps have been installed, they shall be distinctively marked so asto be clearly visible to approaching pedestrian and vehicular traffic. [ 52 ] In addition, the authority for Enforcement Officer Hall to make or issue a Property Standards Order is found in s. 15.2(2) of the Building Code Act, 1992, S.O. 1992, c. 23, which provides that where he finds a property that does not conform with any standards prescribed in a by-law, such as the Mississauga Property Standards Bylaw, then Hall may make an order stating that the site is to be cleared of all debris or refuse [ emphasis is mine below ] Inspection of property without warrant 15.2(1) Where a by-law under

section 15.1 is in effect, an officer may, upon producing proper identification, enter upon any property at any reasonable time without a warrant for the purpose of inspecting the property to determine, (

a) whether the property conforms with the standards prescribed in the by-law; or (

b) whether an order made under subsection (2) has been complied with. Contents of order 15.2(2) An officer who finds that a property does not conform with any of the standards prescribed in a by-law passed under

section 15.1 may make an order , (

a) stating the municipal address or the legal description of the property; (

b) giving reasonable particulars of the repairs to be made or stating that the site is to be cleared of all buildings, structures, debris or refuse and left in a graded and levelled condition;

(

c) indicating the time for complying with the terms and conditions of the order and giving notice that, if the repair or clearance is not carried out within that time, the municipality may carry out the repair or clearance at the owner’s expense; and (

d) indicating the final date for giving notice of appeal from the or der. Service and posting of order 15.2(3) The order shall be served on the owner of the property and such other persons affected by it as the officer determines and a copy of the order may be posted on the property .

Registration of order 15.2(4) The order may be registered in the proper land registry office and, upon such registration, any person acquiring any interest in the land subsequent to the registration of the order shall be deemed to have been served with the order on the day on which the order was served under subsection (3) and, when the requirements of the order have been satisfied, the clerk of the municipality shall forthwith register in the proper land registry office a certificate that such requirements have been satisfied, which shall operate as a discharge of the order. [ 53 ] Furthermore, where a Property Standards Order has been issued, the person required to comply with the Order may appeal such order under s. 15.3(1) of the Building Code Act, 1992 , S.O. 1992, c. 23 [ emphasis is mine below ]: Appeal of order 15.3 ( 1) An owner or occupant who has been served with an order made under subsection 15.2 (2) and who is not satisfied with the terms or conditions of the order may appeal to the committee by sending a notice of appeal by registered mail to the secretary of the committee within 14 days after being served with the order.

Confirmation of order

(2) An order that is not appealed within the time referred to in subsection (1) shall be deemed to be confirmed. Duty of committee

(3) The committee shall hear the appeal. Powers of committee

(3.1) On an appeal, the committee has all the powers and functions of the officer who made the order and the committee may do any of the following things if, in the committee’s opinion, doing so would maintain the general intent and purpose of the by-law and of the official plan or policy statement: 1. Confirm, modify or rescind the order to demolish or repair.

2. Extend the time for complying with the order. [ 54 ] Moreover, if the defendant is convicted of not complying with the November 2nd Property Standards Order, then the defendant is subject to a maximum fine of $1000. The set fine of $350 contained in the

Part I Certificate of Offence is only the out-of-court fine that could be paid by the defendant if he did not wish to dispute the charge. However, once the defendant decides to dispute the charge and seeks a trial, then the defendant becomes subject to the application of both the

Part I penalty

section in s. 12(1) of the Provincial Offences Act , R.S.O. 1990, c. P.8 and the penalty

section in s. 36(3) of the Building Code Act, 1992 , S.O. 1992, c. 23. [ 55 ] Section 36(3) of the Building Code Act, 1992 provides for a maximum fine of $50,000 for a first offence and a maximum fine of $100,000 for a subsequent conviction: Penalties 36(3) A person who is convicted of an offence is liable to a fine of not more than $50,000 for a first offence and to a fine of not more than $100,000 for a subsequent offence. [ 56 ] However, because the defendant has been charged with a

Part I offence then s. 12(1) of the Provincial Offences Act applies to the defendant, and as such, the maximum fine that could be imposed on the defendant is the lesser of $1000 and $50,000 for a first offence or the lesser of $1000 and $100,000 for a subsequent offence, which means that the defendant is only subject to a maximum fine of $1000 upon conviction: Penalty 12(1) Where the penalty prescribed for an offence includes a fine of more than $1,000 or imprisonment and a proceeding is commenced under this Part, the provision for fine or imprisonment does not apply and in lieu thereof the offence is punishable by a fine of not more than the maximum fine prescribed for the offence or $1,000, whichever is the lesser. 5.

ISSUES [ 57 ] The following are issues that have arisen in this motion that need to be resolved: (

a) After an initial inspection of the defendant’s property, in which a Enforcement Officer observes the property to not be in compliance with the Mississauga Property Standards Bylaw, is the Enforcement Officer legally required to re-attend and re-inspect the defendant’s property before he is permitted to make or issue a Property Standards Order under s. 15.2(2) of the Building Code Act, 1992 ? (

b) Is the Property Standards Order issued on November 2, 2009, defective on its face? (

c) Does the Property Standards Order issued on November 2, 2009, contain the final date in which the defendant has to file an appeal or give his Notice of Appeal of the Property Standards Order, as required under s. 15.2(2) of the Building Code Act, 1992 ? (

d) Does the City of Mississauga have the legal authority to require the defendant to pay an appeal fee of $386.40 in order to file the Notice of Appeal of the Property Standards Order? (

e) Has the Property Standards Order been properly served on the defendant by one of the permitted methods under s. 27 of the Building Code Act, 1992 ?

(

f) Is there some evidence that the unsightly storage and debris is deleterious to the neighboring environment? 6. ANALYSIS [58] As it had occurred in this case, an accused person may bring a motion for non-suit after the prosecution closes its case and arguethat the prosecution has not established a prima facie case. To make a prima facie case, the prosecution must adduce some evidence oneach element of the offence, which, if believed by a trier of fact, could support a conviction.

Most importantly, in determining whetherthe prosecution has established a prime facie case, the evidence is not weighed nor are findings of credibility made. Instead, the trier oflaw is simply required to ask whether there is some evidence on each element of the offence, which, if believed by a trier of fact, couldsupport a conviction: U.S.A. v. Sheppard (1976), (SCC), 30 C.C.C. (2d) 424 (S.C.C.); R. v.

Charemski (1998), (SCC), 123 C.C.C. (3d) 225 (S.C.C.). [59] Furthermore, in deciding whether this motion for non-suit should be granted or dismissed, the test for determining if theprosecution has met its evidential burden in making a prime facie case is now found in the Supreme Court of Canada’s decision in R. v.Fontaine (2004), 2004 SCC 27 , 18 C.R. (6th) 203, at para. 53, in which the court concluded that the case against the accusedcannot go to the jury or to be decided by the trier of fact, “unless there is evidence in the record upon which a properly instructed jurycould rationally conclude that the accused is guilty beyond a reasonable doubt”: the case against the accused cannot go to the jury unless there is evidence in the record upon which a properly instructed jury couldrationally conclude that the accused is guilty beyond a reasonable doubt. [60] In addition, in their textbook entitled, “The Law of Evidence, 6ed.” (Toronto, Ontario: Irwin Law Inc., 2011), the authors, D.M.Paciocco and L.

Stuesser, at p. 541, have noted that there has been an evolution in the test used in deciding whether the prosecution hasmade out a prime facie case. This change had been the result of the Supreme Court of Canada’s decision in R. v. Fontaine, when theyimproved the test that had been established in the United States v. Sheppard case, by removing the ambiguity from that classic test byclarifying the question on whether the Sheppard test had required some evaluation of the sufficiency of proof: In R. v.

Fontaine the Supreme Court of Canada said that there is no prima facie case "unless there is evidence in the record upon whicha properly instructed jury [can] rationally conclude that the accused is guilty beyond a reasonable doubt." This standard represents both an evolution of, and improvement on, the classic test from the United States v. Sheppard.

The ambiguously worded Sheppard testhad been understood by some as leaving no room for evaluation of the sufficiency of proof; there would be a prima facie case if therewas "any" evidence, no matter how weak, on each of the things the Crown had to prove in order to gain a conviction. Others acceptedthat the Sheppard test required some evaluation of sufficiency but that in undertaking that evaluation the judge should avoid considering the criminal standard of proof. Fontaine and another Supreme Court of Canada decision, R. v.

Arcuri have now pushed much of theuncertainty aside. [61] In the trial of this charge, the prosecution had called only one witness, which was Enforcement Officer James Hall, who hadissued the Property Standards Order on November 2, 2009, and who did the initial inspection of the defendant’s property on October 18,2009, that informed the basis for Hall to issue the Order, and who then reinspected the property on March 30, 2010, and testified as tothe property still not being in compliance with the Order to clean up the property. [62] After the prosecution completed its case, the defendant brought a motion for non-suit and raised three grounds for which themotion should be granted:

(1) Enforcement Officer Hall had failed to re-inspect the defendant’s property before issuing the Property Standards Order. (2) the property standards order issued on November 2, 2009, had been defective on its face in two ways:

(

i) the order did not contain the final date for the defendant to file or give his Notice of Appeal of that order. (ii) there is no legal authority to require the defendant to pay a fee of $386.40 in order to file the appeal. (3) the Property Standards Order had not been properly served on the defendant. [ 63 ] As such, each ground will be considered to determine if the motion for non-suit should succeed. (

A) THE NOVEMBER 2, 2009 PROPERTY STANDARDS ORDER [ 64 ] The authority for Enforcement Officer Hall to make or issue the Property Standards Order is found in s. 15.2(2) of the Building Code Act, 1992, S.O. 1992, c. 23, which provides that where he finds a property that does not conform with any standards prescribed in a bylaw, then he may make an order stating that the site is to be cleared of all debris or refuse by a certain date [ emphasis is mine below ] Contents of order 15.2(2) An officer who finds that a property does not conform with any of the standards prescribed in a by-law passed under

section 15.1 may make an order , (

a) stating the municipal address or the legal description of the property; (

b) giving reasonable particulars of the repairs to be made or stating that the site is to be cleared of all buildings, structures, debris or refuse and left in a graded and levelled condition; (

c) indicating the time for complying with the terms and conditions of the order and giving notice that, if the repair or clearance is not carried out within that time, the municipality may carry out the repair or clearance at the owner’s expense; and (

d) indicating the final date for giving notice of appeal from the or der. Service and posting of order 15.2(3) The order shall be served on the owner of the property and such other persons affected by it as the officer determines and a copy of the order may be posted on the property. Registration of order 15.2(4) The order may be registered in the proper land registry office and, upon such registration, any person acquiring any interest in the land subsequent to the registration of the order shall be deemed to have been served with the order on the day on which the order

was served under subsection (3) and, when the requirements of the order have been satisfied, the clerk of the municipality shall forthwith register in the proper land registry office a certificate that such requirements have been satisfied, which shall operate as a discharge of the order. [ 65 ] In addition, the property standards on which Enforcement Officer Hall had based his issuance of the November 2 nd Property Standards Order, is in regard to s. 28 of the Mississauga Property Standards Bylaw 654-98, which requires the exterior areas of a property to be maintained in a clean and reasonable condition so as to prevent fire, accidents or a health hazard, and specifically prohibits unlicensed vehicles or inoperative or discarded machinery or objects or parts being placed, stored, or left on the exterior part of a property, unless those articles are required and used for business purposes that is permitted under the City of Mississauga land use bylaws, and that those articles have not been placed, stored, or left in a manner that would be in an unsafe or unsightly condition that is deleterious to the neighbouring environment.

And, if there is also an accumulation of material, wood, debris or other objects on the exterior areas of the property that create an unsafe or unsightly condition, deleterious to the neighbouring environment, then this accumulation is required to be removed [ emphasis is mine below ]: 28. LAND 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 :

(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, but this does not apply where such articles are required and used for business purposes permitted under the City's land use by-laws and where such articles are placed, stored or left in a manner which avoids an unsafe or unsightly condition deleterious to the neighbouring environment . …

(4) Dilapidated, collapsed or unfinished structures and all accumulations of material, wood, debris or other objects that create an unsafe or unsightly condition, deleterious to the neighbouring environment, shall be removed . … [ 66 ] For this case, Enforcement Officer Hall had testified that on October 19, 2009, while walking around the defendant’s property, he had observed unlicensed vehicles, machinery that appeared to be inoperative or discarded, accumulations of material, wood, debris or other objects that were left in an unsightly manner on the property, and also said that a business did not appear to be operated on the defendant’s property that would require these items. [ 67 ] Moreover, after directing the defendant to clean up his property on October 19, 2009, and after not hearing from the defendant about completing the cleanup nor being informed by the defendant that the property was now in compliance with the Property Standards Bylaw, Hall decided to formally issue the defendant a Property Standards Order on November 2, 2009, to clean up the property.

A copy of that three-page Order follows below: Page 1

PROPERTY STANDARDS ORDER Issued pursuant to

section 15.2(2) City of Mississauga Enforcement Division 300 City Centre Dr. Mississauga, ON L5B 3Cl Tel: 905-896-5655 Fax: 905-615-3374 Personal information on this form is collected under the authority of the Building Code Act 1992, SO 1992, c.23 and City of Mississauga By-law 6S4-98 as amended and will be used to enforce the Property Standards By-law. Questions about this collection should be directed to: Freedom of Information Coordinator, Office of the City Clerk, of Mississauga, 300 City Centre Drive, Mississauga, Ontario LSB 3Cl, Telephone (905) 896- 5421.

Location: CON 1 SDS, PT LTS 2, 8-11 43R270S0 Inspector: James Hall Telephone No.: (905) 615-3200 x[removed for privacy] Municipal Address: 1671 Brentano Blvd, Mississauga, On. Units: Comments: Compliance Date: Issued To: December 7, 2009 Owner Delivery Type: Registered Mail Date: 2009-11-2 Owner: George Aregers 1671 Brentano Blvd, Mississauga, On. L4X 1A7 Date Inspected: October 19th, 2009 No.

Section of Act of Code Or By-law Contravened Description of Non Conformity, Location, and Required Action Bylaw 654-98

Section 28 Accumulations of unsightly storage/ debris on property including but not limited to : Wood pallets, steel rails, auto parts, old aquariums, sheets of Styrofoam, unlicensed vehicles, old bicycles, old fridge, old windows/doors, tree wood, plastic fencing, numerous tarps, tires, tire rims, plastic drums, etc. etc .. etc ... Location: Whole property. Required Action: Remove ALL unsightly storage and debris from property.

Page 2

PROPERTY STANDARDS ORDER Issued pursuant to

section 15.2(2) City of Mississauga Enforcement Division 300 City Centre Dr. Mississauga, ON L5B 3Cl Tel: 905-896-5655 Fax: 905-615-3374 Personal information on this form is collected under the authority of the Building Code Act 1992, SO 1992, c.23 and City of Mississauga By-law 654-98 as amended and will be used to enforce the Property Standards By-law.

Questions about this collection should be directed to: Freedom of Information Coordinator, Office of the City Clerk, City of Mississauga, 300 City Centre Drive, Mississauga, Ontario L5B 3C1, Telephone (905) 896-5421. ______________________________________________________________________________________ YOU ARE HEREBY ORDERED to carry out repairs necessary to correct the defects as set out in this Order.

This order shall be complied with and the property brought into a condition of compliance with the prescribed standards or the site cleared of all buildings, structures, debris, or refuses and left in a graded or levelled condition in accordance with any permits required by law on or before December 7, 2009 .

WHERE it has been determined that the necessary repairs or demolition have not been completed in accordance with this Order as confirmed or modified, in addition to any possible court action the City of Mississauga may cause the property to be repaired or demolished and the costs of such actions may be registered as a lien on the land and shall be deemed to be municipal real property taxes and may be added by the Clerk of the municipality to the assessment roll and collected in the same manner and with the same priorities as municipal real property taxes.

YOU ARE HEREBY ADVISED that if you are not satisfied with the terms or conditions of the Order, you may appeal to the Property Standards Committee by sending a Notice of Appeal by registered mail to the Secretary, Property Standards Committee, 300 City Centre Dr., Mississauga, ON L5B 3C1, within fourteen (14) days after being served with this Order , stating your grounds for appeal along with a non- refundable appeal fee of $368.00 plus $18.40 GST, equalling $386.40 payable to the City of Mississauga. ____________________________________________________________________________________ 2009-11-2 “J Hall” ______________ Inspector Please be advised that failure to comply with this ORDER by the compliance date shown , may result in the instigation of legal action and/or the subsequent clean up of the property by City staff and/or their contractor.

The cost for the clean up will be added to the tax roll for the property and collected as real taxes. Please note that this Order does not represent an exhaustive list of possible violations of other applicable statutes and by-laws.

Page 3 PROPERTY STANDARDS ORDER Issued pursuant to

section 15.2(2) City of Mississauga Enforcement Division 300 City Centre Dr. Mississauga, ON L5B 3Cl Tel: 905-896-5655 Fax: 905-615-3374 You are responsible for ensuring compliance with the Ontario Fire Code, the Ontario Building Code, the Planning Act and other applicable statutes or regulations such as zoning by-laws in relation to this property, whether any such requirements have been identified in this Order or not.

(1) Was The Property Standards Order Improperly Issued If The Enforcement Officer Failed To Re-inspect The Property For Compliance Before Issuing The Order On November 2, 2009? [ 68 ] For the first ground for granting the non-suit motion, the defendant argues that after the initial inspection of the defendant’s property on October 19, 2009, Enforcement Officer Hall, had failed to re-inspect the property for compliance before he had issued the

Property Standards Order on November 2, 2009. [ 69 ] Furthermore, when Enforcement Officer Hall was asked why he did not re-attend the property to inspect the property before he issued the Property Standards Order on November 2, 2009, Hall had explained that the defendant had not contacted him to inform Hall that the defendant’s property had been cleaned up.

Moreover, Hall said that on October 19, 2009, when he had attended the defendant’s property and observed a large amount of unsightly storage and debris on the property, Hall surmised the cleanup would have been an enormous undertaking for the defendant to fulfill. [ 70 ] Therefore, in determining whether Hall was legally obligated to re-inspect the property before issuing the November 2 nd Property Standards Order, a review is required of Hall’s authority to make or issue that order under s. 15.2(2) of the Building Code Act, 1 992 , S.O. 1992, c. 23.

Under that statutory provision, it expressly states that an officer who finds a property not conforming with any of the standards prescribed in a bylaw “may make an order” [ emphasis is mine below ]: 15.2(2) An officer who finds that a property does not conform with any of the standards prescribed in a by-law passed under

section 15.1 may make an order , … [ 71 ] However, the authority under s. 15.2(2) that permitted Enforcement Officer Hall to issue the Property Standards Order on November 2, 2009, is not a mandatory obligation on Hall to do so, but a discretionary decision for Hall to make, in light of the phrase, “may make an order ”, which is contained in that statutory provision . [ 72 ] As well, s. 15.2(2) does not expressly state that a property has to be re-inspected for compliance before such order can be made or issued; instead, a Property Standards Order “may” be issued if an enforcement officer “ finds that a property does not conform with any of the standards prescribed in a by-law”.

In respect to that prerequisite, Hall had testified that on October 19, 2009, he had found the property located at 1671 Brentano Boulevard , Mississauga, not to be in compliance with s. 28 of Mississauga Property Standards By-Law 654-98, because of the large accumulation of unsightly storage and debris he had observed on the property. As such, Hall could have made or issued the Property Standards Order on October 19, 2009, or after that date, as long as the property was not in compliance.

There is no requirement that Hall had to re-inspect the property before he could issue the order, as Hall was still acting or operating on the basis of what he had observed on October 19, 2009. [ 73 ] Furthermore, Hall’s decision to issue the Property Standards Order on November 2, 2009, could be viewed simply as the formalization of what Hall had orally requested and ordered the defendant to do on October 19, 2009.

And, in issuing the Property Standards Order some two weeks after Hall had actually observed the collection of junk and debris on the defendant’s property, which had been relatively close in time to the actual inspection, would not be an unreasonable period after the initial inspection to formally issue a direction to the defendant to clean up the property through a Property Standards Order, since it would either be a consequence or a continuation of the initial inspection, especially when Hall had testified that he had not been informed about or had heard from the defendant that the cleanup of the property had been completed before he issued the Order. [ 74 ] Moreover, by only issuing the formal Property Standards Order on November 2, 2009, Hall had effectively given the defendant more time to comply with and fulfill Hall’s direction to clean up the property, which had been given to the defendant on October 19, 2009. [ 75 ] As well, if the defendant would have cleaned up the property before November 2, 2009, then the defendant could have easily informed Hall that the property had been cleaned up, so that Hall could re-attend to verify if the property had been brought into compliance with the Mississauga Property Standards Bylaw.

More important, if the defendant’s property had been already in compliance before the Property Standards Order had been formally issued on November 2, 2009, then the defendant would not be in any jeopardy or face any penal consequences of not complying with that specific order, as the defendant would not have then failed to have complied with that specific Property Standards Order issued on November 2, 2009. [ 76 ] Ergo, since there is no legal requirement under s. 15.2(2) of the Building Code Act, 1992 for Hall to re-inspect the defendant’s property for compliance before issuing a Property Standards Order, and since the Property Standards Order had only been issued two weeks after the inspection of the property had been done on October 19, 2009, and since Hall had not heard from the defendant that the property had been cleaned up of the unsightly storage and debris, then when Hall issued the Order on November 2, 2009, it had only been the formalization in writing of the direction that Hall had given to the defendant on October 19, 2009, to clean up the property and bring it up to compliance.

However, the November 2 nd Property Standards Order now also provided the defendant with a specific

deadline for compliance and information on the consequences of non-compliance and the option to appeal the order within a certain time. [ 77 ] As such, this ground that Hall had to re-inspect the property for compliance before issuing the Property Standards Order, as the basis for granting the non-suit motion is not persuasive or convincing, or grounded in law or contained explicitly in s. 15.2(2) of Building Code Act, 1992 . Therefore, the motion will not succeed on this first ground.

(2) Is The Property Standards Order Defective On Its Face? [ 78 ] For the second ground for granting this non-suit motion, the defendant contends that the November 2nd Property Standards Order is defective on its face in two ways. First, the defendant contends the Property Standards Order did not contain or provide the defendant with the final date in which the defendant could file an appeal of the Property Standards Order or give his Notice of Appeal to the Municipal Committee that would hear the appeal.

And, second, the defendant contends that the City of Mississauga did not have the legal authority to require the defendant to pay an appeal fee of $386.40 in order to appeal the Property Standards Order. (

a) Was the final date for the defendant to file an appeal of the Property Standards Order or to give his Notice of Appeal to the Property Standards Committee, mentioned or contained in the November 2 nd Property Standards Order? [ 79 ] In regards to the first impugned defect, the prosecution argues that the November 2 nd Property Standards Order did contain the final date in which the defendant could file an appeal of the Property Standards Order.

In particular, the prosecution relies on the paragraph in the Order that informs the defendant that he could appeal the Property Standards Order by sending a Notice of Appeal by registered mail to the Secretary of the Property Standards Committee “ within fourteen (14) days after being served with this Order”: YOU ARE HEREBY ADVISED that if you are not satisfied with the terms or conditions of the Order, you may appeal to the Property Standards Committee by sending a Notice of Appeal by registered mail to the Secretary, Property Standards Committee, 300 City Centre Dr., Mississauga, ON L5B 3C1, within fourteen (14) days after being served with this Order , stating your grounds for appeal along with a non-refundable appeal fee of $368.00 plus $18.40 GST, equalling $386.40 payable to the City of Mississauga. [ 80 ] Furthermore, the legal requirement to provide or indicate the final date for filing an appeal of the Property Standards Order within the Order is set out in s. 15.2(2) (

d) of the Building Code Act, 1992 [ emphasis is mine below ]: 15.2(2) An officer who finds that a property does not conform with any of the standards prescribed in a by-law passed under

section 15.1 may make an order , … (

d) indicating the final date for giving notice of appeal from the order . [ 81 ] Moreover, s. 15.3(1) of the Building Code Act, 1992 specifically provides that the owner, who has been served with a Property Standards Order, may appeal the order to the Municipal Committee that would hear the appeal, by sending a Notice of Appeal by registered mail to the secretary of the Committee “within 14 days after being served with the order” [ emphasis is mine below ]: Appeal of order 15.3 ( 1) An owner or occupant who has been served with an order made under subsection 15.2(2) and who is not satisfied with the terms or conditions of the order may appeal to the committee by sending a notice of appeal by registered mail to the secretary of the committee within 14 days after being served with the order .

[ 82 ] Therefore, because of the use in s. 15.3(1) of the phrase, “within 14 days after being served with the order”, which is the exact phrase that was used in the November 2, 2009 Property Standards Order that had been issued to the defendant, the prosecution contends that the legal requirement under s. 15.2(2) (

d) to provide the final date for filing an appeal in the Property Standards Order has been legally fulfilled, since it had provided and had notified the defendant that the “final date” for giving the Notice of Appeal from the order was to be “within 14 days after being served with the order”. [ 83 ] And, even though the defendant’s argument is grounded on the provision of an “actual” or “specific” date in the Order, the 14- day period to file an appeal does not begin to run until the Property Standards Order is served on the defendant, which with personal service would begin on the date of the actual personal service.

However, where service is not by personal service, but by another method of service, such as by registered mail, then the 14-day period to file an appeal begins on the date the defendant is deemed to be served with the Property Standards Order, as it is statutorily expressed.

As such, a “specific” or “actual” date is not required to be expressly stated in the order, since the date of the service of the Property Standards Order would only be known by the defendant or within the personal knowledge of the defendant, and informing the defendant that the date for filing the appeal would be “within 14 days after being served with the order”, would satisfy the requirement under s. 15.2(2) (

d) of “indicating the final date for giving notice of appeal from the order” in the Property Standards Order. [ 84 ] Moreover, if the statutory provision governing the service of the Property Standards Order contains a “deeming” provision for determining the date for when the service of the Property Standards Order is made, then the 14-day period to file an appeal would begin on the statutorily-defined period or day the Property Standards Order is “deemed” to have been served on the defendant. [ 85 ] Furthermore, in the situation where the City of Mississauga has elected to serve the Property Standards Order on the defendant by sending the order by registered mail to the defendant’s last known address, as it was in this case, then s. 27(2) of the Building Code Act, 1992 , which governs service of the Property Standards Order, deems that the order had been served on the defendant on the fifth day of mailing, unless the person to whom the notice or order is given or that person’s agent for service establishes that, acting in good faith, through absence, accident, illness or other unintentional cause the notice was not received until a later date [ emphasis is mine below ]: Service 27

(1) A notice or order required by this Act to be served may be served personally or by registered mail sent to the last known address of the person to whom notice is to be given or to that person’s agent for service. Idem

(2) If a notice or order is served by registered mail, the service shall be deemed to have been made on the fifth day after the day of mailing unless the person to whom the notice or order is given or that person’s agent for service establishes that, acting in good faith, through absence, accident, illness or other unintentional cause the notice was not received until a later date . [ 86 ] Therefore, in the situation where the Property Standards Order is sent by registered mail, then s. 27(2) deems the defendant to have received the Property Standards Order on the fifth day after the letter containing the order was registered and received by the post office, whether the defendant had actually received the registered letter or not, unless the defendant, who has the legal burden on a balance of probabilities, proves that, acting in good faith, the Property Standards Order was not received until a later date, by reason of absence, accident, illness or other unintentional cause. [ 87 ] In addition, as Exhibit 5 indicates , the letter containing the Property Standards Order had been registered and received by the post office on November 2, 2009, which means that the deemed service of the Property Standards Order by registered mail, by virtue of s. 27(2) , had occurred on November 7, 2009, which is the fifth day after the letter containing the Property Standards Order had been received by the post office. [ 88 ] Consequently, by virtue of s. 15.3(1) of the Building Code Act, 1992 , the defendant would have had until November 21, 2009, which is 14 days after the deemed service date of November 7, 2009, to file his Notice of Appeal of the Property Standards Order with the Municipal Committee that would hear the appeal. [ 89 ] As such, the defendant’s contention that the November 2 nd Property Standards Order is defected because it had failed to provide the final date to file an appeal of the Order is not correct, as the November 2 nd Order did mention and inform the defendant that the final date to file the appeal was within 14 days of being served with the Order, which in this case would have been on November 21, 2009, by

virtue of the defendant being deemed to have received the registered letter containing the Order on November 7, 2009. As such, the November 2 nd Property Standards Order is not defective in regards to not providing a final date to file an appeal of the Order. (

b) Does the City of Mississauga have the legal authority to require the defendant to pay a fee of $386.40 in order to file the Notice of Appeal of the Property Standards Order? [ 90 ] For the second impugned defect, the

[…]