George Yates Appellant And: Town of Springdale Respondent, 2021 NLSC 181

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Yates v. Springdale (Town) , 2021 NLSC 181 Date : December 31, 2021 Docket : 202101G5455 Between: George Yates Appellant And: Town of Springdale Respondent Before: Justice Rosalie McGrath On Appeal From: A Decision of the Central Newfoundland Regional Appeal Board, File Number: 15-006-054-002, with order dated the 22nd day of September 2021. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: December 10, 2021

Summary: The Court granted the Appellant’s request for a stay of enforcement pending appeal of a decision upholding a demolition order subject to conditions to protect public safety. The Court also ordered an expedited hearing of the appeal.

Appearances: Robert Regular Appearing on behalf of the Appellant Shawn C.A. Colbourne, Q.C. Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Canada Fluorspar (NL) Inc. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, AlliedIndustrial and Services Workers International Union, Local 9220, 2021 NLCA 53; Vey v. Newfoundland and Labrador PharmacyBoard, 2019 NLCA 72; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; Patel v.Tulan, 2015 ABCA 384; South House Restoration Committee v. Rothesay Collegiate School, 2006 NBQB 120; Grey v.

Edmonton (City),2005 ABQB 231; Jones v. Bay Roberts (Town), 2017 NLTD(G) 134 STATUTES CONSIDERED: Municipalities Act, 1999, S.N.L. 1999, c. M-24 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] The Appellant, George Yates, is the owner of a building located at 57 Bayview Road, Springdale, Newfoundland and Labrador(the “Building”). [2] Since October, 2012, the Town has placed requirements on Mr. Yates to repair the Building, resulting in Mr.

Yates beinggranted two permits to carry out repairs, the last of which expired in February, 2017. [3] Prior to the expiration of the second permit to repair, the Town arranged for a third party structural evaluation of the Building. As a result of that evaluation, the Town ultimately issued an order in March of 2017, delivered to the Appellant in April, 2017, that theBuilding be demolished (the “Demolition Order”). Mr. Yates appealed the Town’s decision to issue the Demolition Order to the CentralRegional Appeal Board (the “Board”), which heard the matter on April 9, 2019.

The Board upheld the decision of the Town. TheBoard’s decision was then appealed to this Court on April 26, 2019 with the appeal being allowed. In a decision dated January 7, 2021,Justice Paquette sent the matter back to the Board for a re-hearing. [4] That re-hearing took place before a differently constituted Board on September 15, 2021, resulting in the Board againconfirming the Town’s decision to issue the Demolition Order in a written decision dated September 22, 2021. [5] Mr. Yates then filed an appeal of that second Board decision on September 27, 2021. On October 13, 2021, Mr.

Yates filed anInterlocutory Application asking for a stay of the Board’s decision pending appeal under Rule 58.06(1) of the Rules of the SupremeCourt, 1986, S.N.L. 1986, c. 42, Sch. D. It is that application that is the subject of this judgment. background [6] The Town asserts that a review of the history of this dispute is necessary to place the positions of the parties in context.

Whileit is unfortunate that the transcript of proceedings before the Board was not available for this hearing, both counsel were the samecounsel who appeared before the Board and agreed that they could both make submissions on the evidence that was before the Board. [7] As noted above, the Town has been making efforts to deal with the condition of the Building since 2012. On October 1, 2012,the Town served Mr. Yates with an order directing that he arrange for the disposition or remediation of the Building. [8] For his part, Mr.

Yates acknowledges being served with that order but alleges the Town was motivated by complaints from theowners of a complex of senior cottages across the road from the Building. Mr. Yates submits that the owners of that property and othersin the area were unhappy that the Building was old and in much poorer condition than those surrounding it. The Building also blockedtheir view to the harbour. However, in submissions, counsel for Mr. Yates acknowledged that Mr. Yates had presented no evidence to

the Board of any correspondence to the Town complaining about the Building or asking that something be done about its condition. [ 9 ] However, Mr. Yates says the wording of the cleanup order issued on October 1, 2012 was that he was to (1) secure signs so as to prevent movement in the wind; and (2) arrange for the disposition or remediation of the Building “so as to enhance the surrounding properties” within 60 days. Counsel for Mr. Yates says that this caused Mr. Yates to be of the mindset that the Town’s primary concern was the opinion of other property owners in the area. [ 10 ] Mr.

Yates appealed that cleanup order to the Board. By way of written decision dated May 1, 2013, Mr. Yates’ appeal was dismissed. Mr. Yates then appealed that decision of the Board to this Court. By way of written decision of Whalen, J., as he then was, Mr. Yates’ appeal was dismissed on December 13, 2013. [ 11 ] Following dismissal of the appeal, the Town issued Mr. Yates a permit to complete general repairs on April 18, 2014. That permit expired on April 27, 2015. During the currency of the permit, Mr.

Yates did not advise the Town, nor was the Town otherwise aware of, any repairs made to the Building. [ 12 ] In January 2016, the Chief Administrative Officer/Manager of the Town, Jason Sparkes, wrote to Mr. Yates advising of concerns with pigeons nesting inside the Building. Given the associated health concerns, Mr. Sparkes recommended that Mr. Yates undertake the necessary work to prevent the passage of pigeons to and from the Building. Mr. Yates advised the Town that he would re- clad the back of his Building and replace the roof covering. Mr.

Yates was then granted a permit to do general repairs on February 11, 2016. That permit was valid until February 10, 2017. [ 13 ] However, towards the end of August, 2016, the Town says it became obvious that no repairs had been carried out. As the construction season was nearing an end, the Town decided to obtain a structural evaluation of the Building. [ 14 ] On September 13, 2016, Mr. Sparkes advised Mr. Yates of this upcoming evaluation and requested that he allow the engineer access to the Building. Mr.

Yates refused to give permission as he alleged that the individual who was the principal behind the engineering firm was biased. That individual owned property near the Building. [ 15 ] Despite the fact that the engineer could have no access to the Building, the Town arranged for the evaluation to be completed on the basis of an exterior inspection.

The structural evaluation report was completed by Chris Sargent, a professional engineer, on January 3, 2017. [ 16 ] That report found significant deformation of roof framing, lack of lateral load resisting systems, deformation of skirting, potential for flying debris and signs of decay. In the conclusory

section of the report, Mr. Sargent stated as follows: The building in its current state of significant deformation and decay is at risk of structural collapse. Collapse may occur under wind and/or snow conditions as its construction does not meet the design loads set out in the National Building Code of Canada. This building, in its current condition and adjacency to public streets in the Town of Springdale, poses a risk of injury to the public. [ 17 ] After receipt of this report and the failure of Mr.

Yates to advise the Town that he had completed any of the work on the Building, the Town made a motion to issue the Demolition Order. Mr. Yates was served with this Demolition Order on April 11, 2017. [ 18 ] After the motion was made by the Town to issue the Demolition Order but prior to the service of that order, Mr. Yates did attempt to obtain a third permit to repair from the Town but that permit was not issued in light of the Town’s prior motion. [ 19 ] Mr. Yates then appealed the Town’s decision to issue the Demolition Order.

The history of how that appeal has wound its way through the Board and Court process is noted above. [ 20 ] When Mr. Yates appealed the first Board decision in 2019, the Town consented to a stay, largely because it felt the appeal had a good chance of success because of how the hearing was conducted.

However, it is not consenting to this application for a stay due to the deterioration in the condition of the Building and the alleged increased risk to the public if the stay were to be granted. issue [ 21 ] Should this Court order that the decision of the Board be stayed pending the disposition of the appeal? law and analysis [ 22 ] Rule 58.06 allows an appellant the right to make an application for an order staying a decision under appeal pending the disposition of the appeal.

An order may be granted on any terms a judge considers appropriate (Rule 58.06(3)). [ 23 ] In a recent decision of the Newfoundland and Labrador Court of Appeal, Canada Fluorspar (NL) Inc. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Services Workers International Union, Local 9220 , 2021 NLCA 53 , Welsh, J.A. set out the test that applies in assessing whether to order a stay. She cited from Vey v.

Newfoundland and Labrador Pharmacy Board , 2019 NLCA 72 , at paragraph 4 as follows: 4 In determining whether to grant an application for a stay pending an appeal, a three-pronged test is applied as discussed in Weir's Construction Ltd. v. Warford Estate , 2016 NLCA 65 (N.L. C.A.), 1 C.A.N.L.R. 282:

[17] The first prong of the test is whether there is a serious issue to be argued on appeal. This requires apreliminary, but not a detailed or extensive, investigation of the merits of the appeal to ascertain whether the appeal isfrivolous or vexatious. ... [18] The second prong of the test is whether the applicant for the stay will suffer irreparable harm if thestay is not granted. It is the nature of the harm, rather than its magnitude, that must be considered. ... [19] The third prong of the test is an assessment of the balance of inconvenience. ...

Serious Issue on Appeal [24] With respect to the first prong of the test, the parties disagreed in their written submissions on to whether the Notice of Appealraises a serious issue to be argued. The appeal sets out five grounds. [25] The first ground is that the Board erred in law and/or jurisdiction in determining that the Town exercised its authorityappropriately in issuing the Demolition Order. The second ground alleges that the Board erred in declining its jurisdiction by failing toconsider how the Town’s motives to acquire the property factored into the decision to issue the Demolition Order.

The third and fourthgrounds are that the Board erred in law and/or jurisdiction in determining that neither the engineering firm that completed the structuralassessment, nor the Town council, exhibited bias against Mr. Yates. The final ground is that the Board erred in law and/or declined itsjurisdiction by failing to give adequate reasons for its decision. [26] Mr. Yates’ written brief did not identify his position with respect to each of the five grounds of appeal but stated that the issuesraised were not frivolous or vexatious. However, in oral submissions, counsel for Mr.

Yates elaborated that the two primary bases forthe appeal relate to (

i) the Board’s alleged failure to consider evidence that the Town and the structural engineers it engaged were biased;and (ii) the Board’s failure to provide adequate reasons for its decision. Mr. Yates concedes that the Board summarized the positions ofthe parties and the evidence but says that it failed to analyze that evidence before coming to its conclusions on the issues raised. [27] For its part, the Town submits that s.404(1)(

f) of the Municipalities Act, 1999, S.N.L. 1999, c. M-24 specifically gives theTown the right to issue a demolition order where a building is in a dilapidated state. The Town also says that the evidence before theBoard showed that the Town had considered its options in dealing with the property, including the possibility of expropriation, butproperly came to the conclusion that was not the appropriate option. [28] The Town notes that the Board provided Mr. Yates with ample opportunity to present his case but Mr. Yates did not presentany evidence to establish bias.

The Board rendered a six-page decision in which it reviewed the evidence and the submissions of bothsides. It gave reasons for its decision on all issues raised. [29] While counsel spent a significant portion of oral submissions dealing with the strength of the various grounds of appeal, at theend of the day, counsel for the Town acknowledged that the threshold of whether a serious issue has been raised on appeal is low.

Thisthreshold is confirmed at paragraph 3 of the above-referenced Newfoundland and Labrador Court of Appeal decision in CanadaFluorspar (NL) Inc. [30] This low threshold had previously been established in the Supreme Court of Canada decision in RJR-MacDonald Inc. v.Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, at paragraph 55, where the court stated as follows: Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and thirdtests, even if of the opinion that the plaintiff is unlikely to succeed at trial.

A prolonged examination of the merits is generally neithernecessary nor desirable. [31] As counsel for the Town acknowledged at the close of his submissions that the grounds of appeal were neither vexatious norfrivolous, I will not undertake a detailed analysis of the merits of each ground of appeal on this application. [32] However, the Town did ask that I take into account its position on the grounds of appeal and the history of the Town’s dealingwith the Building to provide context upon which to determine this application.

I will therefore address these submissions andbackground when considering the second and third prongs of the test. Irreparable Harm [33] With respect to the second prong of the test, Mr. Yates says this is clearly a case in which damages would not be an adequateremedy. [34] Mr. Yates refers to paragraph 17 of the Alberta Court of Appeal decision of Patel v. Tulan, 2015 ABCA 384, in which JusticeO’Ferrall noted that that there is a presumption that irreparable harm is inevitable when an appeal is rendered nugatory as in this case. However, that presumption may be rebutted. [35] In addition, Mr.

Yates submits that if a permit to rebuild is refused, he says there is no amount of damages which couldcompensate him for the harm done. He says the Building is in a location that has excellent proximity to the old “government” wharf onthe shores of Halls Bay, noting in his affidavit that he uses the Building for a small boat building business and related businesses. Healso owns separate nearby wharf property. However, the Town notes that Mr. Yates’ evidence before the Board was that the Buildingwas not used for commercial purposes. [36] Mr.

Yates also references the fact that several years ago the Johnson Foundation, in conjunction with Heritage Canada,identified the site where the Building is located as significant to the settling of Springdale. A plaque was affixed to the land and a mural

was painted on the side of the Building to recognize that history. Mr. Yates says the destruction of that mural would be another instance of irreparable harm. [ 37 ] Counsel for Mr. Yates has referred me to cases in other jurisdictions in which the destruction of property with historical value has been held to amount to irreparable harm. [ 38 ] In the New Brunswick Court of Queen’s Bench decision in South House Restoration Committee v.

Rothesay Collegiate School , 2006 NBQB 120 , the plaintiff alumni committee asked the Court to grant an interlocutory injunction preventing the owner of a property from proceeding with demolition of the building. The building at issue was part of the Rothesay Collegiate School and was argued to be of great sentimental, historical and architectural significance. However, the building was in need of significant repair and restoration. It also bore a significant expense for heating and insurance. [ 39 ] At paragraph 50, the court noted that the building at issue had more than 150 years of history and tradition.

It was alleged there would be an irreparable loss of spirit, reputation and community at the school if the building was demolished. [ 40 ] On the circumstances before it, at paragraph 60, the court concluded that the “preservation of contested property is a proper consideration under the issue of irreparable harm, and that demolition of a building that is the subject matter of a court dispute will cause irreparable harm to those attempting to save it”. [ 41 ] Other unique aspects of a property scheduled to be destroyed may also factor into the assessment of whether irreparable harm may ensue.

In the Alberta Court of Queen’s Bench decision in Grey v. Edmonton (City) , 2005 ABQB 231 , at paragraph 9 , Justice Veit found that a building owner might suffer irreparable harm if an interlocutory injunction were not granted in light of the location of the property and the fact that the owner may not recover his investment in the property from the City. [ 42 ] For its part, the Town states that the Building does not have the same type of historical significance as in the South House Restoration Committee decision cited by Mr. Yates.

I agree that the evidence of historical significance in this instance does not attach to the Building so much as to the real property. However, there is some merit to Mr. Yates’ submission regarding the significance attached to the location. [ 43 ] Perhaps of most importance however is Mr. Yates’ assertion that if the stay is not granted and the Building if demolished, it would cost a significant sum to rebuild.

Further, there is no certainty it can even be rebuilt at its current location, and certainly not for the amount of damages to which he would be entitled. [ 44 ] On the other hand, while the Town acknowledges that the appeal would become moot if the Demolition Order is allowed to proceed, it submits that this reality cannot distract from the real concerns about the present condition of the Building and the reality that is likely beyond repair.

The Town provided me with photographs taken in November, 2021 confirming the portions of the Building which have not yet collapsed would likely do so with continued deterioration/decay, high wind conditions and/or snow loads. [ 45 ] The Town notes that, at the Board hearing, Mr. Yates himself acknowledged that the Building was in a dilapidated state and he was unsure whether it would be worth his while to attempt to restore the Building to its former state. However, Mr. Yates’ evidence is that he had purchased materials to repair the roof prior to the issuance of the Demolition Order.

He says he could have adequately repaired the Building but for the halt that was placed on work as a result of the proceedings before the Board and this Court. If the stay is not granted, he says he will not have the opportunity to attempt repairs. [ 46 ] However, in light of the current state of the Building, the Town says Mr. Yates will likely have little to no choice but to demolish it in any event. [ 47 ] While I have no evidence of whether the Building could be repaired or the cost of repair, I harbour the same concerns as the Town about whether repair is possible in light of its current state.

Since the structural evaluation, due to snow load in 2019 and the lack of maintenance, significant portions of the roof have collapsed and walls have buckled. [ 48 ] In addition, Mr. Yates is concerned that irreparable harm will occur if the Building is demolished and the Town does not issue him a permit to rebuild. He notes that Mr. Sparkes indicated in his affidavit that Mr. Yates, like all property owners in the Town, would have to apply for a permit if it was his intention to construct a new building. He says the Town has been influenced and biased as a result of concerns expressed by adjoining landowners.

He therefore has no faith that he will be granted a permit. [ 49 ] The Town acknowledges that it cannot provide any assurances on rebuilding but says Mr. Yates would be treated the same as any other applicant. No evidence was presented to me as to zoning or any restrictions that may be attached to any development on the property so I make no comment on the probability of Mr. Yates making a successful application for development. However, I agree there is no guarantee that he can rebuild a similar structure at that location. [ 50 ] I therefore find there is merit in Mr.

Yates’ submission that irreparable harm may ensue if the stay is not granted and his appeal becomes moot. That presumption has not been rebutted in these circumstances in which the granting of a stay could result in Mr. Yates not being able to rebuild at this location. That harm could not be remedied if the decision on the merits of the appeal is in his favour. [ 51 ] I must therefore proceed to consider the third prong of the test.

Balance of Inconvenience [ 52 ] With respect to the balance of inconvenience, the Town submits that I should consider the risk of irreparable harm to the Town and the public if the stay is granted. Those concerns need to be balanced against the potential irreparable harm to Mr. Yates. [ 53 ] The Town points out that the Building has gone without repair for almost five years since the date of the structural evaluation report. The evidence of the current state of the Building attached to Mr. Sparkes' affidavit shows the Building is in a state of significant

and advanced decay, with significant portions of its roof and walls having collapsed. The Town continues to be concerned that the Building poses a risk of injury to the public. [ 54 ] The Town says it has a duty to protect its citizens and other property owners. Not only is there is a continued risk of flying debris from the Building, with attendant risk of harm to a passerby, but risk of collapse is even more real. Further, the property must be uninsurable and is not connected to any power source. [ 55 ] The Town refers to paragraph 84 of the decision in Jones v.

Bay Roberts (Town) , 2017 NLTD(G) 134 in which I noted that risk to the public using roads and trails there were not maintained, nor the subject of liability insurance, was a factor to consider in the balance of inconvenience analysis. [ 56 ] In response, Mr. Yates notes that the current photos taken by the Town show large commercial trucks that now block the Building from the public street with houses on the other side. It is also reveals wire fencing around much of the Building and “No Trespassing” signs placed on the property. These were not present when the structural evaluation report was prepared. Mr.

Yates also says he is installing wire fencing around the entire perimeter of the Building. [ 57 ] In response, the Town notes that while there are large pieces of equipment between the Building and adjoining streets and landowners, the equipment does not fully surround the Building and would not prohibit members of the public from entering. [ 58 ] I agree that a review of the photos indicates that the wire fencing and “No Trespassing” signs will only warn and protect against someone entering the Building and potentially suffering harm if the Building collapsed further.

As well, the commercial trucks will only protect against harm if the Building collapsed on the side abutting the residential street. They would not protect against collapse or falling debris on the other sides of the Building, including on the harbour side. [ 59 ] On the issue of flying debris, the structural evaluation report notes that "(p)oorly maintained and constructed buildings have the potential for building materials to come free from the main structure and become airborne during high wind events.

This creates a hazard for passersby or adjacent properties." Further, in referring to the door on the addition to the Building on the harbour side, the engineer states that "All materials related to the door structure and materials used in attempts to hold the doors in place, appear likely to become airborne under high wind conditions." Further, "(t)he building eaves, roof deck and inadequate weather protection membrane all appear in poor condition and may be dislodged by high winds". [ 60 ] However, I also note that the structural evaluation report concludes with a notation that the risk is associated with a structural collapse of the Building in light of its current condition and adjacency to public streets.

The structural collapse of significant portions of the Building already occurred in 2019, with no evidence of any flying debris in the last five years. Further, the portions of the Building abutting the residential street have since been blocked by large commercial vehicles. [ 61 ] Notwithstanding those intervening efforts to mitigate risks however, I share the Town's continuing concern for public safety. Not only is flying debris noted as a concern in the structural evaluation report, it is common sense that there would be a greater risk of building materials coming loose when attached to a decaying building.

I am therefore satisfied that the Town has demonstrated that irreparable harm could occur if the stay is granted. [ 62 ] That being said, I must balance those potential risks against the irreparable harm that may be suffered by Mr. Yates if his appeal is rendered moot. In particular, I must consider which of these two parties will suffer the greater harm from the granting or refusal of the stay pending a determination of the appeal on the merits. [ 63 ] This assessment must be particular to the nature and degree of harm that could be suffered and take into account how any risks could be alleviated.

In doing so, I have considered the history of deterioration of this Building over a period of almost five years since the Demolition Order was issued, noting that a number of concerns of structural collapse, especially on the side abutting the main street, have materialized with no resulting public safety issues.

I have also considered the efforts that have been made to alleviate concerns over public safety and further measures that can be taken on an interim basis. [ 64 ] Having considered all the evidence and submissions made on this application, I find the balance of inconvenience favours the granting of the stay subject to an order addressing interim measures that must be taken by Mr. Yates to reduce any potential short-term risk.

The potential harm by granting the stay can also be alleviated by ensuring the appeal is expedited. disposition [ 65 ] I therefore order that the decision of the Board be stayed pending appeal subject to the following conditions: a. Within three weeks of the date of this decision, Mr. Yates shall install wire fencing around the entire perimeter of the Building; b. Within three weeks of the date of this decision, Mr. Yates shall install signs displaying "No Trespassing" and "Danger - Risk of Falling Debris", or similar terms, on the fencing on all sides of the Building; c.

The Town has leave to bring this application back before me for reconsideration in the event conditions a and b have not been met; d. The parties shall immediately contact the Court to arrange a case management hearing date for the purposes of setting an expedited date for the appeal and to set filing dates for briefs; and e. Costs of this application shall be in the cause.

_____________________________ Rosalie McGrath Justice