Tuteckyj v. Winnipeg (City), 2012 MBCA 100

Citation: Tuteckyj v. Winnipeg (City), 2012 MBCA 100 Date: 20121026 Docket: AI 11-30-07501 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Martin H. Freedman Madam Justice Holly C. Beard BETWEEN : WASYL TUTECKYJ, also known as ) S. Green, Q.C. WALTER TUTECKYJ ) for the Appellant ) (Plaintiff) Appellant ) ) M. A. Jack ) for the Respondent - and - ) ) ) Appeal heard: ) October 18, 2011 THE CITY OF WINNIPEG ) ) Judgment delivered: (Defendant) Respondent ) October 26, 2012 BEARD J.A. I. THE ISSUES 1 The appellant, Mr.

Tuteckyj, is appealing the dismissal of his claim against the City of Winnipeg (the City) for damages arising out of the removal, by the City, of a large amount of personal property from the yard around his residence. The City’s position is that it was acting pursuant to its authority under The City of Winnipeg Charter , S.M. 2002, c. 39 (the Charter ) and the Unsightly Premises By-law No. 8151/2002 (the By-law). 2 While not set out in these words, the grounds of appeal raised by Mr. Tuteckyj are as follows: (

i) the trial judge erred in his factual findings regarding the credibility of the witnesses and in preferring the evidence of the inspectors over that called by Mr. Tuteckyj; (ii) the trial judge erred in applying the wrong standard of unsightliness when he applied the standard relevant to urban residential property instead of that relevant to a storage yard on an agricultural or rural property; (iii) the trial judge erred in failing to apply the principle of statutory

interpretation that a statute that authorizes a public authority to forcefully enter private property and remove personal property belonging to the owner must be strictly interpreted in favour of the owner; (iv) the trial judge erred in holding that s. 5(1)(

a) of

Schedule A to the By-law included property specifically described in ss. 5(1)(b), (

c) and (d); (

v) the trial judge erred in finding that the City gave Mr. Tuteckyj sufficient notice, in compliance with the legislation, of the items that he was to remove from his property; and (vi) the trial judge erred in failing to find that many of the items that the City removed were not junk and debris. 3 In considering the grounds of appeal that are raised, it is important to note that Mr. Tuteckyj made it clear that he is not contesting the following: - the validity of the By-law or its applicability to his property; - the validity of the removal order granted under the By-law or the process used to obtain that order;

- the finding that his property was unsightly; - the fact that the procedure in the Charter and the By-law for obtaining and serving the order and for the appeal were followed; and - the application of the various zoning by-laws, as they have been enacted from time to time, to his property; and, in particular, he has not pleaded or argued that his property is exempt from the zoning by-laws on the basis that its current use is a pre-existing, non- conforming use as that concept relates to the zoning legislation. II. THE FACTS 4 Mr.

Tuteckyj purchased three acres of rural agricultural property in 1951 in what later became East Kildonan and is now Winnipeg. At that time, the property was not zoned and was being operated as a mink farm, as were some of the other properties in the area. In 1952, he sold two acres of his land to the school district for the construction of a school, and he continues to reside on the remaining one acre. Over the years, the area around his property has become an urban residential neighbourhood. At some point shortly after he purchased the property, Mr.

Tuteckyj ceased to operate the mink farm, but he has continued to reside there. 5 A complaint from the Winnipeg Fire Paramedic Service about the condition of the property led to a visit from a building inspector, Marek Rychter, and to the following series of events: August 11, 2006 - Mr. Rychter inspected the property, was of the view that it was “grossly unsightly” and took photographs. August 15, 2006 - Mr. Rychter met with Mr. Tuteckyj, told him that he would have to clean up the property and took more photographs. April 27, 2007 - Mr.

Rychter returned to the property and was of the view that there had been no progress on the clean-up, so he advised Mr. Tuteckyj that he would have to issue a removal order. May 7, 2007 - The City sent an order to Mr. Tuteckyj ordering him to remove and dispose of articles in his front and rear yards.

The order stated that the inspection revealed that “the front and rear yard contain an accumulation of numerous articles including old lumber, shelving, tires, windows and various other junk and debris.” He was ordered, pursuant to the provisions of the By-law, to “remove and properly dispose of all articles including old lumber, shelving, tires, windows and various other junk and debris” by May 21, 2007. May 15, 2007 - Mr. Tuteckyj appealed the order, which appeal was heard on June 26, 2007. Mr. Tuteckyj appeared and made submissions. June 27, 2007 - Mr.

Tuteckyj was granted a 21-day extension to comply with the order. July 13, 2007 - Mr. Rychter attended to the property and found that the property had not been cleaned up, so he advised Mr. Tuteckyj that the City would have to perform the clean-up, starting on July 23, 2007. Mr. Tuteckyj said that he would not consent. July 23, 2007 - Mr. Rychter attended with a contractor to clean up the property, but Mr. Tuteckyj refused access. September 10, 2007 - The City obtained a warrant pursuant to s. 183 of the Charter to enter the property and enforce the order between September 20 and 27, 2007.

September 20-27,2007 - The City inspectors and contractors attended andremoved personal property belonging to Mr. Tuteckyj and hiscompanion, Ms Karpluk. 6 The City inspector, Mr. Rychter, took many photographs of the condition of the yard before, during and following theclean-up. Those photographs graphically demonstrate the significant amount of a large variety of material in the yard and the vegetationthat had grown under, through and around those items.

They also demonstrate that it would be impossible to see everything that was onthe property on a visual inspection due to the sheer amount of material that had accumulated and the fact that the items on the outsideand the overgrown vegetation covered what was underneath. 7 The City hired a contractor to undertake the clean-up of Mr. Tuteckyj’s property. The operation involved seven or eightmen and took six days to complete, during which time they hauled away approximately 13 truck loads. The sum of $10,266.70 wasadded to Mr.

Tuteckyj’s property taxes to cover the cost of the contractor’s unsuccessful attendance on July 23, 2007, and the clean-up inSeptember. III. THE STANDARD OF REVIEW 8 This is an appeal from the judgment of a trial judge, the jurisdiction for which is found in s. 89 of The Court of Queen’sBench Act, C.C.S.M., c. C280, which states as follows: Appeal to Court of Appeal 89 Unless otherwise provided by statute, (

a) an order made by the court may be set aside in whole or in part or varied; and (

b) a verdict of a jury may be set aside in whole or in part on appeal to the Court of Appeal. 9 The leading cases from the Supreme Court of Canada on standards of review in civil matters are Housen v. Nikolaisen,2002 SCC 33 at paras. 7-37, [2002] 2 S.C.R. 235, and H.L. v. Canada (Attorney General), 2005 SCC 25 at paras. 52-76, [2005] 1 S.C.R.401. (See also, the majority reasons in this court’s decision in Macatula v. Tessier, 2003 MBCA 31, 173 Man.R. (2d) 55, Knock v.Dumontier et al., 2006 MBCA 99 at paras. 21-24, 208 Man.R. (2d) 121, and Albionex (Overseas) Ltd. et al. v.

ConAgra Ltd. et al.,2011 MBCA 95 at para. 56, 270 Man.R. (2d) 293.) 10 The majority in Housen noted that questions on appeal can be divided into four categories (at para. 7) and that the standard ofreview to be applied to each category of question is as follows: (1) on a question of law, the standard of review is correctness – a court of appeal can substitute its decision for that of the trial judge ifthe decision of the trial judge is not correct (at para. 8); (2) on a question of fact, a court of appeal cannot intervene unless it can be established that the trial judge made a palpable andoverriding error (at para. 10); (3) on an inference of fact, the standard of review is that of palpable and overriding error (at para. 25); where, however, evidenceexists to support an inference, an appellate court would be hard pressed to find a palpable and overriding error (at para. 22); (4) a question of mixed fact and law involves the application of a legal standard to a set of facts, which lie on a spectrum – where theerror can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error inprinciple, such an error can be considered an error of law, subject to the standard of correctness, but where the legal principle is notreadily extricable, the question of mixed fact and law is reviewable on the standard of palpable and overriding error (at para. 36); and (5) stated another way, the general rule is that, where the question is one of whether or not the standard was met on the facts of aparticular case, that question involves the application of a legal standard to a set of facts and is subject to review on a standard of palpableand overriding error, unless it is clear that the trial judge made some error in principle with respect to the characterization of the standardor its application, in which case the error may amount to an error of law (at para. 37). 11 The concept of “palpable and overriding error” was explained by the Ontario Court of Appeal in Waxman et al. v.

Waxman etal. (2004), (ON CA), 186 O.A.C. 201, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 291 (QL) as follows(at paras. 296-97): The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error isone that is obvious, plain to see or clear: Housen at 246 [S.C.R.].

Examples of “palpable” factual errors include findings made in thecomplete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence andfindings of fact drawn from primary facts that are the result of speculation rather than inference.

An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding offact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does notautomatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challengedfinding of fact such that the fact cannot safely stand in the face of that error: Minister of National Revenue v. Schwartz, (SCC), [1996] 1 S.C.R. 254; 193 N.R. 241, at 281 [S.C.R.].

This concept, as explained in Waxman, was adopted by this court in Albionex at para. 56. 12 The application of this standard was explained in the reasons of the majority in Macatula. The paramount issue in that casewas whether there had been an agreement between the plaintiff and the defendant, which was a question of fact.

In determining thatissue, Monnin J.A., for the majority, stated as follows (at paras. 71-72): The issue on this appeal is not whether I agree with the conclusion arrived at by the trial judge but whether, on the evidence, the trialjudge was entitled to arrive at the findings that he did or whether, in arriving at those findings, he committed palpable andoverriding error. My view of the evidence as a whole is that it was open for the trial judge to come to the conclusion that he did.

There was someevidence on which to support the findings made by the trial judge and as my brother Huband points out in his reasons, “an appeal cannotbe allowed on the basis that the appeal court believes that it would have come to a different conclusion” (at para. 9). In addition, I amunable to state that those findings were not in “harmony with the preponderance of the probabilities”. 13 There is no disagreement that these are the applicable standards. There is, however, some disagreement as to theclassification of the grounds of appeal as between a question of law and a question of fact. Mr.

Tuteckyj has argued that the grounds ofappeal all raise questions of law, while the City has argued that they all raise questions of fact. IV. THE LEGISLATION 14 Because the validity of the By-law and the order are not being challenged, I will refer only to the municipal legislation that isdirectly relevant to s. 5 of

Schedule A to the By-law. The relevant provisions of the Charter are as follows: General authority 129 Council may pass by-laws respecting (

a) subject to

section 130, activities and things on private property; . . . . . Activities and things on private property 130 A by-law authorized by clause 129(a) (activities on private property) may only contain provisions respecting (

a) activities and things that in the opinion of council are or may become a nuisance or a detriment to persons or property, includingnoise, weeds, and activities and things that may cause fumes, odour or vibrations; (

b) unsightly buildings and premises; (

c) buildings and premises which, because of their condition or appearance, may substantially depreciate the value of other land andbuildings in the vicinity; (

d) requirements for providing fences around, and for preventing entry onto or into, vacant property; and (

e) the storing of vehicles, including the number and type of vehicles that may be kept or stored and the manner of parking and storingthem. Order to remedy contravention 184(1) A designated employee who finds that this Act, another enactment that the city is authorized or required to enforce, or a by-law is being contravened, may, by written order, require the person responsible for the contravention to remedy it and shall serve theorder on the person. Content of order 184(2) An order under subsection (1) may (

a) direct the person to stop doing something, or to change the way in which the person is doing it;

(

b) direct the person to take any action or measure necessary to remedy the contravention, including the demolition or removal of a building; . . . . . (

d) specify a time within which the person must comply with the order; and (

e) state that if the person does not comply with the order within the specified time, the city will take the action or measure ordered at the expense of the person. City remedying contravention, etc. 185(1) Where (

a) a person has been served with an order under

section 184; (

b) the person to whom the order was directed has not complied with the order within the time specified in it; and (

c) the time within which an appeal against the order may be taken has expired or, if an appeal against the order was taken, the appeal has been decided and the decision (

i) confirms the order, or (ii) varies the order, but the person has not complied with the order as varied; the city may, subject to subsection (3), take any action or measure that is referred to in the order and that is reasonable to remedy the contravention, and in so doing the city may do any work on adjoining land or buildings that is necessitated by the city remedying the contravention. [Note: subs. (3) deals with the removal or demolition of a building and is, therefore, not relevant to the current case.] 15 The trial judge found, and it is not being contested by the parties, that the By-law was validly enacted pursuant to s. 129 (

a) of the Charter . The relevant portions of the By-law state as follows:

Definitions 2 In this By-law . . . . . “ Unsightly ”, when applied to a building or premises, means buildings or premises that fail to comply with the standards set out in

Schedule “A”. Standards for land and buildings 3(1) The owner and occupant of buildings and premises must maintain the buildings and premises so that they are not unsightly. 3(2) The owner and occupant of buildings and premises must maintain the buildings and premises so that they do not substantially depreciate the value of other land and buildings in the vicinity. . . . . .

Schedule A Grounds 5(1) Premises must be kept free and clean from: (

a) rubbish, garbage, junk and other debris; (

b) wrecked, dismantled, partially dismantled, inoperative, discarded, abandoned or unused vehicles, trailers and other machinery or any parts thereof; (

c) excessive growth of weeds or grass; and (

d) objects and conditions, including holes and excavations, that are health, fire or accident hazards. 16 This By-law has since been repealed and replaced by the Neighbourhood Liveability By-law No. 1/2008. V. ANALYSIS OF THE GROUNDS OF APPEAL

17 I will now undertake a review of the grounds of appeal. 1. Did the trial judge err in his factual findings regarding the credibility of the witnesses and in preferring the evidence of the inspectors over that called by Mr. Tuteckyj? The Trial Judge’s Decision 18 The trial judge explained, with examples from the evidence, why he found the testimony of Mr. Tuteckyj, Mr. McWilliams, Mr. Singh and Mr. Boyce to be not credible. While he did not make reference to any specific examples, he stated that he found the testimony of Mr. Rychter and Mr.

Wence, the city inspectors, to be credible and to be preferred over that of Mr. Tuteckyj and Mr. McWilliams. He stated that he placed little or no reliance on the testimony of Mr. Singh and Mr. Boyce. He also stated that he did not accept as reliable the testimony of Mr. Tuteckyj and Mr. McWilliams regarding the condition and value of the items taken by the City. He did not mention the testimony of Mr. Schreyer, Mr. Olson or Mr. Kuzyk. The Positions of the Parties The Appellant’s Position 19 Mr. Tuteckyj argues that the trial judge made several evidentiary errors by: - accepting Mr.

Rychter’s evidence in the face of a number of errors in his testimony and contradictions between his testimony and both his examination for discovery and the testimony of Mr. Tuteckyj; - refusing to accept the testimony of Mr. Singh, who was an independent witness who worked for the contractor that did the clean- up, and of Mr. McWilliams, who cleaned up the property for Mr. Tuteckyj; - failing to comment on or address the testimony of Mr. Schreyer and Mr. Kuzyk; and - accepting the testimony of the city inspectors to substantiate the City’s position without calling the workers who removed the personal property.

The Respondent’s Position 20 The City’s position is that the trial judge was entitled to make credibility findings regarding the testimony of the witnesses and that great deference is to be shown for those findings, such that intervention will be rare. It argued that there was evidence to support the trial judge’s findings regarding the credibility of Mr. Rychter, Mr. Tuteckyj, Mr. Singh and Mr. McWilliams, such that there is no basis to overturn those findings. 21 The City’s position regarding the trial judge’s failure to mention the testimony of Mr. Kuzyk, who was the principal of the school adjacent to Mr.

Tuteckyj’s property, is that his testimony did not affect any of the outstanding issues, so it was irrelevant to the outcome of the proceedings. Even if it was a palpable error not to mention his testimony, that error was not overriding. 22 The City’s position regarding the trial judge’s failure to mention the testimony of Mr. Olson is that his testimony related to the credibility of Mr. Boyce’s testimony. Given that the trial judge rejected Mr. Boyce’s testimony, Mr. Olson’s testimony was not relevant to any of the outstanding issues.

Thus, the failure to mention his testimony could not be an overriding error. 23 The City’s position is that Mr. Schreyer testified about two matters of relevance to the issues. He testified that the property looked as it had for many years, being the storage of goods on any rural property. The City’s position is that Mr. Schreyer was not qualified as an expert, so his opinion was that of a layperson.

Given that the trial judge could see for himself the condition of the premises from the many dozens of photographs of the property that were filed at the trial, the trial judge could form his own opinion as to the condition of the property. 24 The City stated that Mr. Schreyer also testified that he had seen firewood on Mr. Tuteckyj’s property in 2006. Given that the clean-up occurred in September of 2007 and that Mr. Schreyer acknowledged that the firewood would have been depleted over the winter, the City stated that this testimony was of little assistance. 25 Thus, regarding the testimony of Mr.

Schreyer, the City’s position is that, even if it was a palpable error not to mention his testimony, that error was not even close to being overriding. Analysis 26 This ground of appeal raises questions of fact for which the standard of review is that of palpable and overriding error. 27 The Supreme Court of Canada has made it clear that the trial judge’s findings of fact and findings of credibility are to be given the highest level of deference, such that interference will be rare. (See , for example: Housen at paras. 10-18 ; H.L. v. Canada (Attorney General) at paras. 51-76 ; and R. v.

R.E.M. , 2008 SCC 51 at paras. 31-32 , [2008] 3 S.C.R. 3 .) 28 This is not one of those rare cases mandating appellate interference with the factual and credibility findings of the trial judge regarding the acceptance and weight to be given to the testimony of the various witnesses. He properly considered and weighed the evidence and committed no errors in making the findings that he did, and certainly no overriding errors. There is no merit to this ground of appeal. 2.

Did the trial judge err in applying the wrong standard of unsightliness when he applied the standard relevant to urban residential property instead of that relevant to a storage yard on an agricultural or rural property?

The Trial Judge’s Decision 29 Mr. Tuteckyj argued strenuously at trial that the “unsightliness” of his property should be judged on the standard of a storage yard for building supplies and other collectible items on an agricultural or rural property and not on the standard of an urban residential property.

This issue was discussed between counsel and with the trial judge on several occasions during the trial, but the trial judge did not address it in his reasons. 30 While he did not address this argument directly, the trial judge did note in his reasons that the By-law “provides that the owner and occupant of buildings and premises must maintain the buildings and premises so that they are not unsightly and so that they do not substantially depreciate the value of other land and buildings in the vicinity” (at para. 16). In this case, that is a residential neighbourhood, not an agricultural or rural one.

On a reading of his reasons and given that he found that the property was unsightly and that the removal of the items was not unreasonable, it is clear that he did not accept Mr. Tuteckyj’s argument that the condition of the property must be judged on the standard for a storage yard in an agricultural or rural area. The Positions of the Parties The Appellant’s Position 31 As at the trial, Mr. Tuteckyj’s position remains that he had been using his property as a storage yard for building materials and other items that he has collected for 58 years, starting before there were any zoning by-laws.

He argued that the determination, by the inspectors, of whether any item fell within the category of “junk or debris” and whether the property, overall, was unsightly should have been done in the context of a storage yard in an agricultural or rural area because that use of the property by him pre-existed the enactment of the By-law. That said, Mr. Tuteckyj clearly conceded that he did not challenge, and is not now challenging, the application of the current zoning by-law to his property.

The Respondent’s Position 32 The City’s position is that the exemption for a “non-conforming use” is found in s. 241 of the Charter and relates to zoning legislation, being legislation that governs the permitted uses of a property. It argues that legislation regulating unsightly premises is not zoning legislation because it does not govern the use of property – it applies to all properties within a municipality, regardless of the use being made of that property.

Therefore, the exemption for a “non-conforming use” does not apply to the enforcement of unsightly premises legislation. 33 The City acknowledged that, while the test of “non-conforming use” would not apply to the determination of whether a property was unsightly, the acceptable condition of a property for the purposes of the By-law and for determining whether there had been a breach of that legislation would vary depending on the permitted uses or zoning of the neighbourhood in which the property was situated. 34 It argued that Mr.

Tuteckyj’s property should be held to the standard of an urban residential neighbourhood and not to that of a storage yard in a rural agricultural area.

Analysis 35 If the trial judge applied a wrong standard, this would constitute an error of law and would be reviewable on a standard of correctness. 36 The exemption for non-conforming use appears only in s. 241(1) of the Charter , which states as follows: Previously conforming building and use continued 241(1) A building, or a use of real property, that complies with zoning by-laws before the adoption of a new zoning by-law may continue notwithstanding that the building or use does not conform with the provisions of the new zoning by-law. 37 Firstly, the provision that permits non-conforming uses specifically states that it relates to compliance with zoning by-laws.

Secondly, this provision is found in

Part 6 of the Charter , entitled “ Planning and Development, Division 2, Development, Non- Conforming Uses.” Sections 129 and 130, which grant the City the jurisdiction to enact the By-law, appear in

Part 5 of the Charter, entitled “Powers of the City, Division 1, Spheres of Jurisdiction, Public Convenience.” Thus, it is clear from the wording of the

section and the structure of the legislation that the exemption for a non-conforming use is limited to the application of zoning legislation and does not apply to this By-law regarding unsightly premises. The result is that Mr. Tuteckyj is not exempt from the application of the By- law on the basis that his use of the property constitutes a non-conforming use. 38 It was open to Mr.

Tuteckyj to challenge the applicability of the zoning by-law to his property on the basis that his use of the property as a storage yard in a rural or agricultural area is a legal non-conforming use and, therefore, is not subject to the current, or any, zoning designation. He chose not to do that, so he cannot benefit from the zoning exemption for use as a non-conforming property. Thus, it remains subject to the current zoning designation and the uses permitted therein. 39 Because Mr.

Tuteckyj’s property is not zoned for a storage yard in a rural agricultural area and is located in a residential neighbourhood, the proper standard upon which to determine whether it is unsightly is that of an urban residential property and not that of a storage yard. 40 In this case, while the trial judge did not specify which standard he was applying in determining “unsightliness,” it is clear that he applied a standard in keeping with the urban residential nature of the neighbourhood, rather than that being proposed by Mr. Tuteckyj.

Thus, while the trial judge did not directly deal with this issue, he clearly applied the correct standard and his failure to specifically address this issue did not affect the outcome of the proceeding. He has committed no error of law, and for this reason, this

ground of appeal must fail. 3. Did the trial judge err in failing to apply the principle that legislation that authorizes a public authority to forcefully enterprivate property and remove personal property belonging to the owner must be interpreted and applied strictly, in favour of theowner? The Trial Judge’s Decision 41 While the trial judge acknowledged that Mr. Tuteckyj raised the Riopelle v. City of Montreal (1911), (SCC),44 S.C.R. 579 decision in his argument, he did not comment further on it in his reasons.

He went on to interpret and apply thelegislation, but he did not say whether he was doing so on a strict or liberal basis. The Positions of the Parties The Appellant’s Position 42 Mr. Tuteckyj argues that, where a statute gives a public authority the right to forcefully enter onto private property andremove personal property belonging to the owner, such a statute must be strictly interpreted, the requirements imposed on the citizenmust be precise and that any ambiguity, vagueness or other imprecision in the statute or the removal order must be decided in favour ofthe owner. As the trial judge pointed out, Mr.

Tuteckyj is relying on the following statement by Fitzpatrick C.J.C. in Riopelle (atp. 586): As my brother Duff says, “this is a case in which form is substance.” The principle at issue is of the highest importance, affecting theright to property. It would be extremely unwise to establish in this court a precedent which might be invoked by every municipal officerto justify the right to enter upon the property of private citizens and there demolish their buildings on the ground that they are, in hisopinion, defectively constructed.

The legislature has, in the case of the respondent, thought wise to give the city officials very largepowers, it is true, but it has coupled with the exorbitant right conferred a duty to give notice, and that duty must be literally and strictlycomplied with. 43 He also relies on Prince George (City) v. Riemer, 2010 BCSC 118, 68 M.P.L.R. (4th) 143, and McKenna v. Woodstock(Town) (1992), (NB KB), 131 N.B.R. (2d) 330 (Q.B.). 44 Mr. Tuteckyj argues that the City went far beyond the authority of the legislation and the wording of the clean-up order,removing items that were not included in the wording of the order.

His position is that, in doing so, it committed trespass to his property. The Respondent’s Position 45 The City did not address Riopelle in its argument. Its position is that the only issue is whether the wording of the order wassufficient. It argues that the trial judge found as a fact that the wording of the order was reasonable and sufficiently specific to informMr. Tuteckyj of what he was required to do. It says that this is a question of fact and that the trial judge’s finding should not bedisturbed.

Analysis 46 The issue of whether the trial judge erred in failing to apply the principle that legislation that authorizes a public authority toforcefully enter private property and remove personal property belonging to the owner must be interpreted and applied strictly, in favourof the owner, is a question of law and is reviewed on a standard of correctness. 47 Riopelle was decided in 1911 and was dealing with the demolition of a building by a municipality in 1898.

The majoritydecisions in Riopelle reflected the general attitude of that era that favoured private property rights over legislated public interference withthose rights. While that attitude held that legislation empowering municipal actors to enter and alter private property needed to be givenstrict

interpretation, the law has evolved since Riopelle. This evolution has been recognized by Pierre-André Côté, Stéphane Beaulac &Mathieu Devinat in their text, The

Interpretation of Legislation in Canada, 4th ed. (Toronto: Thomson Reuters Canada Ltd., 2011) (atpp. 47-48): …. While not so long ago, few statutes were exempt from strict (i.e., non-extensive), if not frankly restrictive,

interpretation, thisapproach has lost much of its influence, and a broad, liberal approach has become increasingly widespread. . . . . . The evolution described here is observable in a wide variety of domains: criminal law, tax law, urban planning law, etc. …. 48 Dealing specifically with statutes that encroach on the enjoyment of property, the authors state as follows (at p. 513): Planning bylaws have frequently been construed restrictively in light of the principle of free enjoyment of property. ….

However, this traditional approach to urban planning bylaws, a natural outgrowth of the laissez-faire philosophy which prevailed in thenineteenth century, is now challenged by public policy concerns related to a more rational organization of urban life. Thus, there is aclear trend toward a less strict

interpretation of urban planning legislation. …. 49 The authors note that this trend is found in the Supreme Court’s decisions in Bayshore Shopping Centre Limited v.Corporation of the Township of Nepean, (SCC), [1972] S.C.R. 755, Soo Mill & Lumber Co. Ltd. v. Corpn. of the City ofSault Ste. Marie, (SCC), [1975] 2 S.C.R. 78, St. Peter’s Evangelical Lutheran Church, Ottawa v. City of Ottawa et al., (SCC), [1982] 2 S.C.R. 616 and Leiriao v. Val-Bélair (Town), (SCC), [1991] 3 S.C.R. 349. Morerecently, in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485, a case dealing

with a municipal by-law to limit the number of taxi licences, Bastarache J., for the court, stated as follows (at paras. 6, 8): The evolution of the modern municipality has produced a shift in the proper approach to the

interpretation of statutes empoweringmunicipalities. This notable shift in the nature of municipalities was acknowledged by McLachlin J. (as she then was) in Shell CanadaProducts Ltd. v. Vancouver (City), (SCC), [1994] 1 S.C.R. 231, at pp. 244-45. The “benevolent” and “strict”construction dichotomy has been set aside, and a broad and purposive approach to the

interpretation of municipal powers has beenembraced: …. …. A broad and purposive approach to the

interpretation of municipal legislation is also consistent with this Court’s approach to statutoryinterpretation generally. The contextual approach requires “the words of

an Act … to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”:E.A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002SCC 42, at para. 26. This approach is also consistent with s. 10 of Alberta’s

Interpretation Act, R.S.A. 2000, c. I-8, which provides thatevery provincial enactment must be given a fair, large and liberal construction and

interpretation that best ensures the attainment of itsobjects. See also the decision of Cromwell J.A. (as he then was) in Halifax (Regional Municipality) v. DeWolfe (E.) Trucking Ltd. et al., 2007NSCA 89 at paras. 83-86, 257 N.S.R. (2d) 276. 50 Manitoba has legislation similar to Alberta’s

Interpretation Act, R.S.A. 2000, c. I-8, being The

Interpretation Act, C.C.S.M.,c. I80.

Section 6 of the Manitoba Act states as follows: Rule of liberal

interpretation 6 Every Act and regulation must be interpreted as being remedial and must be given the fair, large and liberal

interpretation that bestensures the attainment of its objects. 51 While none of these decisions from the Supreme Court of Canada dealt specifically with unsightly premises by-laws, thecourt’s willingness to use a liberal approach in the expropriation-like case of Leiriao, combined with the numerous observations that thesame approach to statutory

interpretation should be used for all types of statutes, indicates that, while Riopelle has not specifically beenoverruled, it has been overtaken. 52 This position is supported by jurisprudence from this court. In the case of Mulder Investments Ltd. v. Winnipeg (City)(1981), (MB CA), 15 Man.R. (2d) 327, which dealt with the

interpretation and application of restrictions in a zoningby-law, Matas J.A., for the majority (Huband J.A. concurring in the result), stated as follows (at para. 26): …. If we were required to choose between a strict or a liberal

interpretation of the by-law, we should, I think, opt for a liberalconstruction on the ground that the elected council should decide on the kind of uses to be permitted within the municipality. But I donot think it is necessary to decide the case on the basis of different philosophic approaches to

interpretation of statutes. With respect, weshould follow what was said by Spence, J. [in Bayshore], and should “… approach the

interpretation and application of the by-lawwithout acknowledging any compulsion to consider its provisions either strictly or liberally”. See also Steel J.A. in Hechter et al. v. Winnipeg (City) et al., 2004 MBCA 142 at para. 13, 190 Man.R. (2d) 22. 53 Thus, municipal legislation is no longer exempted from the application of the general rule of statutory

interpretation that hasembraced a broad and purposive approach. See United Taxi Drivers’ Fellowship at paras. 6, 8. 54 Given these developments in the law, it is clear that the strict compliance approach to statutory

interpretation regarding thepower of public entities, including municipalities, over private property that was in effect at the time of the decision in Riopelle has beenreplaced by the Supreme Court of Canada’s adoption of the broad and purposive approach in United Taxi Drivers’ Fellowship and ShellCanada Products Ltd. v. Vancouver (City), (SCC), [1994] 1 S.C.R. 231. Thus, the trial judge did not commit an errorof law by failing to apply the rule of strict

interpretation. For these reasons, this ground of appeal has no merit. 4. Did the trial judge err in holding that s. 5(1)(

a) of

Schedule A to the By-law applied to property specifically described in ss.5(1)(b), (

c) and (d)? The Trial Judge’s Decision 55 The trial judge’s reasons on this point are as follows (at paras. 30, 41): …. The Premises failed to comply with the standards set out in s. 5(1) of

Schedule “A” to the Bylaw, and in particular, the plaintifffailed to keep the Premises free and clean of the things described in s. 5(1)(

a) of

Schedule “A”, namely, rubbish, garbage, junk and otherdebris. …. Plaintiff’s counsel argues that the Order was deficient because it made no reference to the things, objects and/or conditions describedin s. 5(1)(b), (

c) and (

d) of

Schedule “A” to the Bylaw. For example, the plaintiff was not ordered to remove and dispose of “wrecked,dismantled, partially dismantled, inoperative, discarded, abandoned or unused … machinery [and] any parts thereof”, and he was not toldthat, if he did not do so, the City would remove and dispose of them. In my view, this argument is without merit because virtually all ofthe items removed and disposed of by the City fell within s. 5(1)(a) (i.e., were rubbish, garbage, junk and other debris). The Positions of the Parties

The Appellant’s Position 56 The wording in the removal order, which was dated May 7, 2007, is set out in full in para. 7 of the trial judge’s decision andthe relevant parts are contained in para. 5 herein. Mr. Tuteckyj argues that the removal order was worded so as to engage only s. 5(1)(a)of

Schedule A to the By-law, but not clauses (

b) to (d). 57 He explained his position during argument at trial as being that each clause must be read as a separate category, such thateach clause is separate from the others, on the basis of the principle of “expressio unius est exclusio alterius,” or “if you express theparticular, you exclude the other.” He argued both at trial and on appeal that, because the removal order and warrant referred only toclause (a), the inspectors were limited to removing only that property that was included within that description and they were notauthorized to remove items referred to in clauses (

b) to (d). He argued that, in fact, they removed many items that were within clause(b), including a tractor, appliances, machinery and parts of machinery. The Respondent’s Position 58 The City’s position is that clause (

a) is the most broadly worded provision that is a catch-all which includes items that mightalso fit into the other clauses and that none of the clauses are exclusive of the others: for example, “garbage” in clause (

a) would include“weeds,” which are specifically included in clause (c), and “dismantled vehicles” in clause (

b) could also be a health or accident hazardwithin clause (d). 59 The City argues that, instead of asking whether the clauses are each exclusive of the others, the better question is whether s.5(1)(

a) covers the item at issue. The fact that an item fits within one or more of clauses (

b) to (

d) does not mean that it does not also fitwithin clause (a). Analysis 60 This ground of appeal involves a question of law and must be determined on the standard of review of correctness. 61 Côté et al. refer to the rule of expressio unius est exclusio alterius as a rule of logic and an example of an a contrarioargument. The authors state as follows (at p. 359): While a contrario reasoning, especially in the form expressio unius est exclusio alterius, is widely used, it is among the interpretativearguments that must be used with the utmost caution.

The courts have often declared it an unreliable tool, and, as we shall see, it isfrequently rejected. 62 The principle of expressio unius est exclusio alterius is a maxim of

interpretation that is sometimes referred to as an impliedexclusion. Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008), explains thismaxim as follows (at p. 244): An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thingwithin its legislation, it would have referred to that thing expressly.

Because of this expectation, the legislature’s failure to mention thething becomes grounds for inferring that it was deliberately excluded. …. 63 She states that there are two common forms of implied exclusion. The one that most closely relates to Mr.

Tuteckyj’sargument is the one that Sullivan calls the “failure to mention comparable items,” which she explains as follows (also at p. 244): When a provision specifically mentions one or more items but is silent with respect to other items that are comparable, it is presumedthat the silence is deliberate and reflects an intention to exclude the items that are not mentioned. …. 64 She provides two examples of the application of this principle. In Re Medical Centre Apartments Ltd. and City of Winnipeg(1969), (MB CA), 3 D.L.R. (3d) 525 (Man.

C.A.), the legislation stated that a hospital was exempted from payingproperty taxes on property that was used for hospital purposes and deemed that “property used … for necessary parking facilities,interns’ quarters, school of nursing, nurses’ residence, power house or laundry” (at p. 539) was used for hospital purposes. The issuewas whether two apartment buildings rented to hospital staff were included in the exemption.

This court found that they were not, on thebasis that the language of the exemptions was precise and expressed in such detail that it negated the suggestion of any intent to meanmore than it said. 65 The second example is found in R. v. Hunter (I.F.), 2000 BCCA 363, 139 B.C.A.C. 315. In that case, the court had todetermine whether possession of viable cannabis seeds was contrary to the governing legislation. The legislation prohibited thepossession of cannabis sativa, its preparations and derivatives, including cannabis resin and marihuana, “but not including … non-viablecannabis seed” (at para. 6).

By excluding “non-viable seeds” as opposed to “seeds,” the Legislature showed that it had considered howto deal with seeds and chose to exclude only those that were non-viable, leading to the conclusion that viable seeds were to be included. 66 When one looks at the provisions in s. 5(1), it is clear that they are not comparable at all. The provisions are as follows: - s. 5(1)(

a) does not describe specific items of property, but rather the condition of non-specified items; - s. 5(1)(

b) refers only to a specific category of items, being “vehicles, trailers and other machinery” that are in a state of disrepair; - s. 5(1)(

c) does not relate to items of personal property at all – it relates to weeds and grass; and - s. 5(1)(

d) is similar to s. 5(1)(a), in that it relates to a specific condition rather than a limited category of physical things; that is, itincludes both personal property and the entire premises (being the real property), but is limited to that which is in a condition thatconstitutes a health, fire or accident hazard.

67 It is clear that these provisions are overlapping, given that a health, fire or accident hazard can be caused by an item that is rubbish or debris and also by the excessive growth of weeds or grass. Mr. Tuteckyj’s counsel acknowledged, in his submissions to the trial judge, that, if discarded machinery was not another category, you might say that it falls under junk and debris. This acknowledgment, itself, negates a finding that the categories are either exclusive or comparable. 68 This raises the question of whether this

interpretation of overlapping effect offends the presumption against redundancy or tautology. This rule is expressed by Sullivan as follows (at p. 210): It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose. …. . . . . . … every word and provision found in a statute is supposed to have a meaning and a function. For this reason courts should avoid, as much as possible, adopting

interpretations that would render any portion of a statute meaningless or pointless or redundant. 69 The presumption against tautology is not a fixed rule; rather, it is a starting point that is open to rebuttal. In that regard, Sullivan states that (at pp. 213-14): Although the presumption against tautology is frequently invoked, it is also easily rebutted. This is done by coming up with a meaning or function for the words in question, to show that they are not in fact meaningless or superfluous. …. . . . . . ….

Drafters sometimes anticipate potential misunderstandings or problems in applying the legislation and, in an effort to forestall these difficulties, resort to repetition or the inclusion of unnecessary detail. Repetition or superfluous words may also be introduced to make the legislation easier to read or work with .… …. When tautologous words are deliberately included in legislation for reasons such as these, the courts say that they are added ex abundanti cautela , out of an abundance of caution …. 70 The

interpretation and relationship of ss. 5(1)(

a) and (

b) must be considered in the context of the rest of

Schedule A. Within s. 5(1)(

a) there are words with redundant and overlapping meanings. Section 5(1)(

a) refers to “rubbish, garbage, junk and other debris.” These words are not defined in either the Charter or the By-law, and neither of the parties suggested a definition; however, given their ordinary meanings, they are clearly at least overlapping, if not also redundant. The

definitions in the Oxford Dictionary of English , 2d ed., Revised 2005, are as follows: rubbish: waste material; refuse or litter: …. material that is considered unimportant or valueless: she had to sift through the rubbish in every drawer . …. garbage: rubbish or waste, especially domestic refuse. worthless or meaningless material or ideas; rubbish: a store full of overpriced garbage . …. junk: old or discarded articles that are considered useless or of little value. …. debris: scattered pieces of rubbish or remains. …. 71 Likewise, s. 5(1)(

b) refers to both “discarded” and “abandoned” vehicles, trailers and other machinery or parts thereof. The Oxford Dictionary of English defines these as follows: discard: get rid of (… something) as no longer useful or desirable: …. abandoned: having been deserted or left: an abandoned car .… 72 Again, the ideas conveyed by these words are clearly overlapping when referring to movable items such as those included in s. 5(1)(b). 73 Further, s. 5(1)(

c) requires that the premises must be kept free and clean from excessive growth of weeds and grass, while s. 5(2) states that “[p]lants and vegetation must be kept trimmed so as not to become unsightly.” Sections 5(1)(c), 5(3)(

c) and 7(1)(

c) all deal with hazardous conditions. Again, these provisions are clearly overlapping. 74 All of these provisions in

Schedule A form the definition of “unsightly” in the By-law. It is clear that the legislation was not drafted with the intention that the words and provisions would be separate and exclusive. The only possible explanation for the use of these words and provisions is that the drafters intended to use repetition and superfluous words to ensure the clearest and widest possible meaning to the word “unsightly.” This is not surprising, given that what is considered to be “unsightly” is very subjective and even elusive.

It would be impossible to list all of the myriad of ways in which a property could be considered to be unsightly. The use of overlapping and repetitive words and provisions is intended to avoid loopholes and to provide clarity in the legislation. 75 I find that categories in ss. 5(1)(

a) to (

d) are not meant to be read as being mutually exclusive, as has been argued by Mr. Tuteckyj. Rather, they are clearly overlapping, such that an item of personal property may be included in more than one category. Thus, the trial judge did not commit an error of law in failing to find that items clearly within s. 5(1)(

b) must be excluded from the other categories, and in particular from s. 5(1)(a). In other words, he was correct in finding that an item of personal property could come within more than one of the categories within s. 5(1) of

Schedule A to the By-law. Therefore, this ground of appeal has no merit.

5. Did the trial judge err in finding that the City gave Mr. Tuteckyj sufficient notice, in compliance with the legislation, of the items that he was to remove from his property? The Trial Judge’s Decision 76 The trial judge stated as follows (at paras. 42-43): Plaintiff’s counsel also submits that the wording of the Order was insufficient as it only refers to “old lumber, shelving, tires, windows and various other junk and debris”. However, the Order clearly indicates that the condition that resulted in the contravention of the By- law was the “accumulation of numerous articles”.

The plaintiff was directed to dispose of “all articles including” the ones specified. In circumstances such as the present circumstances, it would be unreasonable to require the City to list in the Order every item that had to be removed. The plaintiff knew that there was a problem with the state of his yard in August 2006. Rychter met with the plaintiff prior to the issuance of the Order and told the plaintiff that he had to clean up his yard. The plaintiff’s partner, Karpluk, said that she came to understand that the City expected the plaintiff to clean out the yard.

The plaintiff had more than a year to do that clean-up and to store any valuable items. I have no doubt whatsoever that the plaintiff knew what he was required to do, and I believe that the wording of the Order was reasonable and sufficiently specific to inform the plaintiff of what he was required to do …. The Positions of the Parties The Appellant’s Position 77 Mr.

Tuteckyj’s position on appeal is essentially the same as his position at trial, that being that the City was removing his personal property pursuant to the order of May 7, 2007, and the warrant that entitled them to enter and remove items without permission. He argues that the City was entitled to remove only those items that were specified in the order, being “old lumber, shelving, tires, windows and various junk.” He states that the City went far beyond the provisions of the order when it took items that were not included in the order.

The Respondent’s Position 78 The City’s position is that the trial judge had the opportunity to hear the testimony of Mr. Tuteckyj and Ms Karpluk and to canvass with each his or her understanding of the order, and he concluded that each was well aware of what was required well in advance of the compliance date. 79 It argues that in this case, it was impossible to know what items were located on the property because many of them were covered with years of weeds and vegetation and could only be identified once the removal was in progress, like peeling back the layers of an onion.

It was not practical or reasonable to change the order each time a new item was uncovered. It argues that, as the trial judge found, Mr. Tuteckyj was aware of what was to be removed and that the wording of the order was reasonable and sufficiently specific to inform him of what he was required to do and what the City was entitled to remove. Analysis 80 This ground of appeal involves a question of fact or of mixed fact and law, and it is to be decided on the standard of review of palpable and overriding error. 81 While Mr.

Tuteckyj is relying on Riopelle to support his position, the facts, and in particular the type of deficiency in the notice, in Riopelle are different than in this case. In Riopelle , the majority found that the demolition notice was defective because it did not tell the property owner whether he was to take down the building, alter it, or simply strengthen it, and that it did not give notice that the municipality would demolish the building if the owner did not act.

The notice only said that if the owner failed to act, he would be prosecuted and incur the penalty imposed by the by-law. 82 In this case, the order of May 7, 2007, clearly states that Mr. Tuteckyj is to remove and properly dispose of the items that are described. It also states that, if he fails to do so, the chief building inspector may enter upon the property and have the conditions corrected. 83 Further, the City tried to work with Mr. Tuteckyj for over a year before it took action. Mr. Rychter met with Mr.

Tuteckyj on August 15, 2006, April 27, 2007, and July 13, 2007, to discuss the clean-up of the property. Again on that last date, Mr. Rychter advised Mr. Tuteckyj that, if he failed to clean up the property, the City would do it. Mr. Tuteckyj appeared in person at the appeal hearing on June 26, 2007, regarding the condition of the property. Mr. Rychter attended at the property again on July 23, 2007, with the contractor and advised Mr. Tuteckyj that the property was still not in an acceptable condition. Mr.

Tuteckyj had from that date until September 20, 2007, when they returned with the warrant, to do the work himself. Thus, Mr.

Tuteckyj had ample notice of what was expected of him and of what would happen if he failed to comply. 84 The following comments of Davies J., who wrote a dissenting decision in Riopelle , are applicable in this case (at pp. 588-89): There was nothing arbitrary or high-handed in the proceedings taken by the civic authorities to compel the demolition of this “public nuisance.” The amplest possible notice was given to him of the danger the buildings were to the public and the necessity for their demolition, and it was only when and after he defiantly refused to comply with these notices that the buildings were demolished and the nuisance abated. 85 Mr.

Tuteckyj has argued that the notice was defective because it did not give him notice of what items he was to remove, and

that the City removed many items that were not included in the notice. I agree with the City’s position that, in this case, it was not reasonably possible to make a list of all of the items to be removed – there were simply too many items in the yard, and most of them were hidden under other material and/or covered by vegetation, making them discoverable only as the yard was cleared out.

That is clear from the many photographs that were filed with the court. 86 While the order of May 7, 2007, does not come even close to listing all of the items that were removed from the property, it also does not purport to be an exhaustive list of what is to be removed. The order is not limited to specific items, but rather is quite expansive. It stated that “the front and rear yard contain an accumulation of numerous articles including old lumber, shelving, tires, windows and various other junk and debris” and ordered Mr.

Tuteckyj to “remove and properly dispose of all articles including old lumber, shelving, tires, windows and various other junk and debris.” Thus, it is clear from the wording that the order was not limited to those items specifically listed. 87 The sufficiency of the notice must be determined in the context of the facts of the case rather than looking at the notice in isolation. In this case, the trial judge, who heard the evidence, found that Mr. Tuteckyj knew what he was required to do and that the wording of the order was reasonable and sufficiently specific to inform him of what he was required to do. Mr.

Tuteckyj has not shown that the trial judge erred in coming to this conclusion. Thus, I find that the trial judge did not commit any palpable and overriding error in holding that the notice to Mr. Tuteckyj, in the circumstances of this case, was sufficient. As a result, this ground of appeal has no merit. 6. Did the trial judge err in failing to find that many of the items that the City removed were not junk and debris? The Trial Judge’s Decision 88 The trial judge acknowledged that Mr. Tuteckyj’s position was that the City took many items that, in his opinion, were not junk or debris.

The trial judge found that the majority of those items had been stored outside for a long period of time, where they had been exposed to the elements and were not being used for their intended purpose. He accepted that Mr. Tuteckyj had been told on several occasions, including during the clean-up, that he could keep whatever he wanted to keep, as long as it was put in the garage, in another place, or removed from the property. He chose not to avail himself of that opportunity. The trial judge found that the City did not remove any more property than it was permitted to remove.

He stated that, if there were some items that did not fit squarely within s. 5(1) of

Schedule A to the By-law, perfection was not possible and that the City was not negligent in its enforcement of the By-law. The Position of the Parties The Appellant’s Position 89 Mr. Tuteckyj now argues, as he did at the trial, that many of the items removed by the City were not junk or debris, but were valuable and useful items or items that he was collecting. His position is that, in taking items that were not junk or debris, the City was acting outside of the authority provided by the order and the warrant.

The Respondent’s Position 90 The City’s position is that the trial judge was correct, and certainly committed no palpable and overriding error, in finding that it acted reasonably in enforcing the By-law and in the clean-up of Mr. Tuteckyj’s property. It points out that not everything was removed from the yard, and that many items were left there. It argues that the trial judge made a finding of fact that the City did not remove anything more than it was entitled to remove and that it did not act negligently, as alleged by Mr. Tuteckyj. It states that Mr.

Tuteckyj has not met the onus of establishing that the trial judge made any palpable and overriding error in arriving at his decision on this issue. Analysis 91 This ground of appeal involves a question of fact or mixed fact and law and is to be determined on the standard of review of palpable and overriding error. 92 Mr. Tuteckyj’s major complaint is that many of the items that were removed were useful to him, or could be made useful, and, therefore, could not be considered junk or debris. This issue was considered by the Court of Appeal of Newfoundland in McDonald v.

Grand Falls (Town) (1982), 37 Nfld. & P.E.I.R. 293 . In that case, like in this one, the property owner was storing a significant amount of a wide variety of material on his property, and had been for some time. The Town of Grand Falls took action under its anti-litter regulations and, when the owner failed to comply with the notice, the Town removed the goods and the owner sued for compensation. The trial judge analyzed the list of items removed and found that some had value and, therefore, were not litter. 93 The Court of Appeal disagreed with the trial judge.

Gushue J.A., for the court, stated as follows (at paras. 5, 7): With respect, I cannot agree with the trial judge’s reasoning. Even assuming that certain items have a value and might not of, or by, themselves be construed as litter, i.e., rubbish, garbage, etc., this is not the issue here. The photographs make it abundantly clear that the McDonald property was literally filled to overflowing with tons of the material described above. …. I fail to see from these actions how it could be said that the Town exceeded its authority.

Counsel for the respondent argues that the Town should only have taken what was actually litter, i.e., “refuse, garbage, rubbish”, etc., and this has been dealt with in part above. Further, surely the Town could not be expected to cull the refuse, etc., from any possible items of value. That would be an almost impossible task. If the respondent were concerned about losing materials of value, he should have taken steps to protect such material. He had been placed on notice of the consequences of his failure to do so, and he elected to do nothing about it.

Any loss therefrom can thus only be attributed to him. 94 In this case, as in McDonald , the photographs make it abundantly clear that the property was filled with junk and debris –

items that had been sitting, untouched, some for years and many for decades. By city standards it is a large property, and almost the entire lot was filled with a wide variety of items, much of which had been sitting outside, uncovered, for decades. Much of the metal was rusted, the wood was rotten and infested with insects, there was a dead animal and there were containers of unidentified liquids in various places. As noted above, it took seven to eight men working for six days to clear out the yard, hauling away 13 truck loads. Mr.

Tuteckyj’s counsel argued that the City should have tested each item – for example, an old gas barbeque – to see if each was working, and only removed those that were not working. This would be time-consuming and pose a health and accident risk to the workers, and is not a reasonable proposition. As did Mr. McDonald, Mr. Tuteckyj had ample opportunity to identify those items that were in working condition and store them so that they would not be removed.

He did not do so, and it was his failure to act that resulted in them being removed. 95 I find that the trial judge did not commit any palpable and overriding error of fact or mixed fact and law in concluding that all of the items removed by the City were junk and debris and that the City acted reasonably and was not negligent in removing them. Thus, I find that there is no merit to this ground of appeal. VI. CONCLUSION 96 For the reasons set out above, I find that the trial judge did not commit any error with regard to any of the grounds of appeal raised on this appeal.

As a result, I would dismiss the appeal, with costs to the City. ____________________________ J.A. I agree: ____________________________ J.A. I agree: ____________________________ J.A.