COURT OF APPEAL FOR ONTARIO

CITATION: Oakville (Town) v. Sullivan, 2021
    ONCA 1

DATE: 20210106

DOCKET: C68261

Trotter, Zarnett and Jamal JJ.A.

BETWEEN

The Corporation of the Town
    of Oakville and

Oakville Hydro Electricity
    Distribution Inc.

Applicants (Respondents)

and

Michael Arthur Sullivan and
    Margaret Di Pede

Respondents (Appellants)

Albert G. Formosa and Marie-Pier
    Nadeau, for the appellants

Charles M.K. Loopstra and Scott E.
    Hamilton, for the respondents

Heard: November 24, 2020 by video conference

On appeal from the
    order of Justice Clayton Conlan of the Superior Court of Justice, dated March
    6, 2020, with reasons reported at 2020 ONSC 1419.

Jamal J.A.:

Introduction

[1]

This appeal involves a claim for actionable
    encroachment on an easement. The appellants, Michael Sullivan and Margaret Di
    Pede, built a swimming pool and surrounding deck, platform, and other elements
    (Pool Amenities) behind their house in Oakville. The Pool Amenities extend over
    a ten-foot strip of land which, although owned by the appellants, is subject to
    an easement held by the respondents, The Corporation of the Town of Oakville
    (Town) and Oakville Hydro Electricity Distribution Inc. (Hydro). The easement
    prohibits the erection of any building or structure within that strip of land.
    The appellants knew about the easement when they bought the property and proceeded
    to build the Pool Amenities without a municipal building permit.

[2]

The application judge declared the Pool
    Amenities to be a building or structure erected on the land that was subject
    to the easement, and thus an actionable encroachment upon it. He ordered the appellants
    to remove the Pool Amenities and remediate any damage to the easement by June
    1, 2020. The appellants now appeal.

[3]

For the reasons that follow, I would dismiss the
    appeal.

Background

[4]

In June 1972, the appellants predecessors in
    title granted an easement to the Town over the most westerly ten feet (10) of
    their property. The easement indenture, which is registered on title, provides in
    relevant part:

WHEREAS the Owners are the owners of the lands
    described in Schedule A
hereto
and have
    agreed to grant the herein mentioned easements;

NOW THEREFORE the Owners in consideration of
    other good and valuable consideration and the sum of Two Dollars ($2.00) now
    paid to it by the Town,
hereby
grants to the
    Town the right, liberty and privilege appurtenant to its undertaking as a
    Municipal Corporation to construct, operate, maintain, replace and repair
    underground sewers, drains, pipes, conduits, wires and services generally with
    such above ground accesses, manholes, catch basins, hydrants, service boxes and
    other appurtenances as it desires, at its expense and for so long as it
    desires, upon, across, along and under the land described in Schedule A
hereto
and for every such purpose the Town and those
    claiming under it shall have access to the said land
at
    all times
but
reserving to the Owners the right to use the surface of
    the said land for any purpose which does not conflict with the Towns rights
hereunder
and specifically excluding the planting of
    any tree and the erection of any building or structure
. [Emphasis added.]

[5]

In February 2000, the Town sold the easement to
    Hydro but retained an interest in it under the municipal by-law authorizing the
    sale.

[6]

In October 2012, the appellants bought the
    property. They knew about the easement before closing, but believed it was abandoned
    or never used. In fact, located within the easement is an underground conduit
    that houses a hydro cable providing electricity to a neighbouring property.

[7]

In early 2014, the appellants built the Pool
    Amenities in their back yard within the easement.

[8]

It is not disputed that the Pool Amenities are a
    building under the Ontario
Building Code Act, 1992
, S.O. 1992, c.
    23, and thus legally required a municipal building permit. No such permit was
    obtained. In January 2018, the appellant Michael Sullivan pleaded guilty to
    building the Pool Amenities without a building permit and breaching an order to
    comply. Mr. Sullivan offered to pay to relocate the hydro service of the
    neighbouring property, but his affected neighbour was unwilling to agree to
    this proposal.

[9]

It is also not disputed that, over the years, several
    other structures have been erected within the easement with the Towns approval,
    including a carport and part of the house. Two large trees are also within the
    easement.

[10]

In May 2018, the respondents applied to the
    Ontario Superior Court for a declaration that the Pool Amenities encroach upon
    the easement and for an order requiring their removal.

The application judges decision

[11]

By order dated March 6, 2020, the application
    judge granted the application. In his reasons, he ruled that the Pool Amenities
    actionably encroach upon the easement because they contravene the express
    prohibition against erecting a building or structure within it. He also ruled
    that the equitable doctrine of proprietary estoppel does not prevent the Town
    and Hydro from enforcing their rights under the easement. He therefore ordered
    the appellants to remove the Pool Amenities and to remediate any damage to the
    easement at their own expense by June 1, 2020.

[12]

In
obiter dicta
, however, the application
    judge added that had he not concluded that the Pool Amenities contravened the
    express terms of the easement, he would have ruled that the Town and Hydro had
    not established an actionable encroachment. He was prepared to accept that the
    Pool Amenities could cause some unspecified or unknown, but probably quite
    minor, degree of inconvenience to the Town and/or Hydro in exercising their
    Easement rights, however, that is not the test for substantial interference.

Issues

[13]

This appeal raises three issues:

1.

Is there an actionable encroachment on the easement?

2.

Was the easement abandoned or partially
    extinguished?

3.

Does the equitable doctrine of proprietary
    estoppel preclude enforcement of the easement?

Discussion

Issue #1: Is there an actionable encroachment
    on the easement?

(a)

Applicable principles

[14]

In evaluating whether there is an actionable
    encroachment on an easement created by express grant, the court first determines
    the nature and extent of the easement by interpreting the wording of the
    instrument creating the easement, considered in the context of the
    circumstances that existed when the easement was created:
Fallowfield v.
    Bourgault
(2003), 68 O.R. (3d) 417 (C.A.), at para. 10; see also
Raimondi
    v. Ontario Heritage Trust
, 2018 ONCA 750, 96 R.P.R. (5th) 175, at para.
    11.

[15]

Once the nature and extent of the easement have been
    determined, the court then considers whether there is an actionable
    encroachment upon it. The test for an actionable encroachment is whether there is
    a substantial interference with the use and enjoyment of the easement for the
    purpose identified in the grant:
Weidelich v. de Koning
, 2014 ONCA
    736, 122 O.R. (3d) 545, at paras. 9-11;
Fallowfield
, at paras. 40-41;
Hunsinger
    v. Carter
, 2018 ONCA 656, 91 R.P.R. (5th) 175, at para. 11; Anne Warner La
    Forest,
Anger & Honsberger, Law of Real Property
, loose-leaf, 3rd
    ed. (Toronto: Thomson Reuters, 2019),
at para.
17:20.50; and
Halsburys Laws of Canada

Real Property
(Toronto:
    LexisNexis Canada, 2016 Reissue), at HRP-325.

(b)

Application to this case

[16]

The appellants assert that the application judge
    erred in ruling that the Pool Amenities are an actionable encroachment, for two
    reasons:

1.

The easement does not limit the appellants right to build the Pool
    Amenities on their property, because the easement was only ever intended to be
    used, and has only ever been used, for a hydro line, which can be serviced even
    with the Pool Amenities located within the easement; and

2.

The application judge applied the wrong test for actionable
    encroachment by ruling that the appellants are prohibited outright from
    erecting any building or structure within the Easement, regardless of whether
    that building or structure conflicted or substantially interfered with the
    rights of the Easement holder(s). Had the application judge applied the
    correct substantial interference test, he would have concluded that no actionable
    encroachment was established.

[17]

I do not accept these submissions.

[18]

First, the application judges ruling as to the nature
    and extent of the easement involves a question of mixed fact and law that attracts
    appellate deference, and is reviewable (absent an extricable error of law)
only for palpable and overriding error: see
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at para.
    50;
Owners, Strata Plan LMS 3905 v. Crystal Square Parking
    Corp.
, 2020 SCC 29, 450
    D.L.R. (4th) 105, at para. 101,
per
Rowe J. (dissenting, but not on this
    point);
Tessaro v. Langlois
, 2019 BCCA 95, 100 R.P.R. (5th) 51, at
    paras. 18-20; and
Twogee Developments Ltd v. Felger
    Farming Co Ltd
,
    2017 ABCA 138, 52 Alta. L.R. (6th) 270,

at
    para. 27.

[19]

In my view, the application judge properly
    focused on the wording of the easement indenture. The indenture states that the
    appellants rights to use the surface of the lands within the easement
    specifically exclud[es] the planting of any tree and the erection of any
    building or structure. He was entitled to conclude that the easement delivered
    a two-part message to the homeowner: (i) do not use the surface of the
    Easement land for any purpose that conflicts with the Towns rights (described
    above),
and
(ii) so that there is no confusion, do not under any
    circumstances plant a tree or erect a building or structure within the Easement
    (emphasis in original). The bottom line, the application judge stated, is that
    the planting of a tree or the erection of a building or structure on the
    Easement land is not permitted, period.

[20]

The application judge was also entitled to
    conclude that interpreting the easement as an outright prohibition reflects its
    broad purpose of allowing the Town unfettered access within the easement to
    provide municipal services:

One must remember that
the purpose of this
particular
Easement
    is very broad. The Town, from the outset of the Indentures creation, has the
    right to (i) go underground within the Easement for, effectively, any reason
    connected to municipal services and to (ii) access, above ground and within the
    Easement, any item related to such a service. An outright prohibition against
    the planting/erection of any tree, building or structure within the Easement
is neatly consistent with
such a broad purpose.

[21]

The appellants say that the application judges interpretation
    focuses principally on the wording of the indenture and ignores contemporaneous
    extrinsic evidence that suggests that the easement was primarily if not
    exclusively intended to permit a hydro line under the appellants property.
    They say that modern technology now allows the hydro line to be repaired or
    replaced even if a building or structure is erected within the easement.

[22]

I do not accept this submission. It is, in
    effect, an invitation for the court to read down the clear words of the
    easement indenture based on the surrounding circumstances and the use made of
    the easement to date. But, as Rothstein J. for the Supreme Court of Canada cautioned
    in
Sattva
, [w]hile the surrounding circumstances will be considered
    in interpreting the terms of a contract, they must never be allowed to
    overwhelm the words of that agreement: at para. 57. The easement indenture here
    is not limited to placing a hydro line under the appellants property. It also
    allows the Town to install and maintain underground sewers, drains, pipes,
    conduits, wires and services generally. That these facilities have not been
    installed within the easement to date is of no moment. The easement is not time
    limited and is therefore perpetual:
Remicorp Industries Inc. v. Metrolinx
,
    2017 ONCA 443, 138 O.R. (3d) 109, at para. 47, citing
Gale on Easements
,
    20th ed. (London: Thomson Reuters (Professional) UK Limited, 2017), at para.
    12-26. Indeed, the easement indenture expressly permits the Town access to
    provide the other listed municipal services, as it desires and for so long
    as it desires.

[23]

Thus, in my view, the application judges determination
    of the nature and extent of the easement is not tainted by palpable or overriding
    error. I would therefore reject the appellants first argument that the
    easement does not prohibit the erection of a building or structure such as the
    Pool Amenities.

[24]

Second, I disagree with the appellants claim that
    the application judge applied the wrong test for an actionable encroachment. Although
    I accept that the application judges reasons could have been clearer, I read those
    reasons as implicitly applying the substantial interference test. By contravening
    the outright prohibition against erecting a building or structure, the Pool
    Amenities necessarily encroach upon the easement. The easement indenture does
    not say that the appellants are prohibited from erecting a building or
    structure unless it creates a barrier or obstacle to the respondents exercise of
    their rights under the easement. Rather, as the application judge held, the
    appellants are prohibited outright from erecting any business or structure
    within the Easement. By agreeing to an outright prohibition, without
    qualification, the parties have effectively defined for themselves what will
    constitute a substantial interference with the easement.

[25]

The application judges observation in the
    alternative and in
obiter
that the respondents did not discharge their
    onus of establishing substantial interference does not detract from this
    conclusion. His
obiter
observation considered only one aspect of the
    easement  the appellants obligation not to use the surface of the easement
    for any purpose that conflicts with the Towns rights. Because it was in the
    alternative, it did not consider the outright prohibition against erecting any
    building or structure. But when the outright prohibition is considered, as it
    was under the first part of the application judges analysis, a substantial
    interference is established.

[26]

I therefore see no basis to intervene with the
    application judges conclusion that the Pool Amenities are an actionable
    encroachment on the easement.

Issue #2: Was the easement abandoned or partially
    extinguished?

(a)

Applicable principles

[27]

In
Remicorp
, this court reviewed the
    general principles relating to abandonment of an easement by release (at paras.
    47-51) and partial extinguishment of an easement (at paras. 63-73). In broad
    outline:

·

Unless an easement is granted for a term of
    years, the rights conferred by an easement are perpetual and, accordingly, are actually
    or potentially valuable rights. Therefore it is not lightly to be inferred that
    the owner of such a right should give it up for no consideration: at para. 47,
    citing
Gale on Easements
, at para. 12-26.

·

Other than by an express release, an easement
    can be abandoned by release impliedly by non-use coupled with evidence of an
    intention to abandon the easement: at para. 49.

·

An easement can be extinguished either by
    statute or at common law: at paras. 70-71.

(b)

Application to this case

[28]

Here, in the alternative, the appellants assert that
    the easement has been abandoned for any purpose other than the hydro cable.
    They say this is the only purpose for which the easement has been used, and that
    modern technology allows the cable to be serviced effectively even with the Pool
    Amenities within the easement. They also suggest the easement has been partially
    extinguished at common law because the easement serves no purpose other than
    servicing the hydro cable.

[29]

However, the application judge made no express findings
    on abandonment or partial extinguishment, and it is not clear whether these
    issues were even argued before him. This court will generally not entertain entirely
    new issues on appeal where doing so might unfairly deprive the other party of
    the opportunity to lead relevant evidence:
Kaiman v. Graham
, 2009 ONCA
    77, 245 O.A.C. 130, at para. 18;
Whitby (Town) v. G & G 878996 LM Ltd.
,
    2020 ONCA 654, 5 M.P.L.R. (6th) 174, at para. 9.

[30]

In any event, based on the evidence before the
    court and the findings that were made, I see no basis to conclude that the easement
    was abandoned or partially extinguished:

·

No
express

abandonment
is alleged, nor have the appellants
    established implied abandonment. In my view, the creation of the easement by express
    grant registered on title and its use continuously for a hydro cable is
    sufficient to find that the respondents did not intend to abandon it: see
Remicorp
, at paras. 50-51.

·

Nor is there any basis to find that the easement
    was extinguished at common law. There is no evidence that the municipal purposes
    for creating the easement have
come to an end
:
Remicorp
, at para. 65, citing
Anger & Honsberger
,
Law
    of Real Property
, at para. 17:20.60(a). Nor does lack of use and lack
    of need suffice to extinguish an easement by
operation
    of
law:
Remicorp
, at para. 76.

[31]

I therefore conclude that the appellants have
    not established that the easement was abandoned or partially extinguished.

Issue #3: Does the equitable doctrine of proprietary estoppel preclude
    enforcement of the easement?

(a)

Applicable principles

[32]

Proprietary estoppel is an equitable doctrine that
    can create or affect property rights when there is a want of consideration or
    of writing:
Clarke v. Johnson
, 2014 ONCA 237, 371 D.L.R. (4th) 618, at
    para. 41, citing
Anger & Honsberger, Law of Real Property
, at
para.
28:10.20. As noted in
Clarke
,
    at para. 52, three elements must be established:

(i) the owner of the land induces, encourages
    or allows the claimant to believe that he has or will enjoy some right or
    benefit over the property;

(ii) in reliance upon his belief, the claimant
    acts to his detriment to the knowledge of the owner; and

(iii) the owner then seeks to take unconscionable
    advantage of the claimant by denying him the right or benefit which he expected
    to receive[.]

(b)

Application to this case

[33]

In the further alternative, before this court the
    appellants largely repeat the argument they made before the application judge to
    invoke proprietary estoppel: (i) the Town expressly permitted the construction
    of a portion of the appellants house and carport within the easement, and thus
    induced, encouraged, or allowed them to believe that the easement was abandoned
    or no longer in use; (ii) the appellants relied on this belief when building
    the Pool Amenities within the easement; and (iii) it would be unconscionable to
    allow the respondents to now assert that the Pool Amenities encroach on the
    easement.

[34]

The application judge rejected this argument and
    concluded that the appellants had established none of the conditions for proprietary
    estoppel:

[T]here is no evidence to suggest that Hydro
had any knowledge of
the other structures
located
within the easement that existed before the
    Pool Amenities were installed, and thus, it cannot be said that Hydro induced,
    encouraged or allowed [the appellants] to do what they did in early 2014.

Second, we know for certain that the
    [appellants] did not enquire with the Town and/or Hydro about
the scope of
the Easement or a building permit
    before installing the Pool Amenities, and thus, there is no evidence to suggest
    that the [appellants] acted to their detriment to the knowledge of either the
    Town or Hydro.

Third, though perhaps unforgiving
to some degree,
there is nothing unconscionable
    about the Town and Hydro enforcing the clear wording of the said Indenture.

[35]

The application judge correctly cited the elements
    for proprietary estoppel enunciated in
Clarke
, and asked whether those
    elements were met based on the facts. His conclusion that the appellants had
    not established the conditions for proprietary estoppel is a finding of mixed
    fact and law that attracts appellate deference, absent palpable and overriding
    error. In my view, the appellants have shown no such error.

[36]

I therefore conclude that the equitable doctrine
    of proprietary estoppel does not preclude the enforcement of the respondents easement.

Disposition

[37]

I would dismiss the appeal, order the appellants
    to comply with the order of the application judge by June 30, 2021 (the date agreed
    to by the parties), and award the respondents costs of the appeal in the agreed
    amount of $40,000, all inclusive, payable within 30 days.

Released: January 6, 2021 (G.T.T.)

M.
    Jamal J.A.

I agree.
G.T. Trotter J.A.

I agree. B. Zarnett J.A.


COURT
    OF APPEAL FOR ONTARIO

CITATION: Ontario
    (Labour) v. Sudbury (City), 2021 ONCA 252

DATE: 20210423

DOCKET: C67701

Fairburn A.C.J.O., Watt and
    Huscroft JJ.A.

BETWEEN

Her Majesty the Queen in Right of
    Ontario (Ministry of Labour)

Appellant

and

Corporation
    of the City of Greater Sudbury

Respondent

David McCaskill, for the appellant

Ryan J. Conlin and Amanda D. Boyce, for
    the respondent

Chetan Muram and Kevin Simms, for the
    intervener Workers Health and Safety Legal Clinic

Heard: January 26, 2021 by video conference

On appeal from the judgment of Justice
    John S. Poupore of the Superior Court of Justice, dated June 6, 2019, with
    reasons reported at 2019 ONSC 3285, 88 M.P.L.R. (5th) 158, dismissing an appeal
    from the acquittals entered on August 31, 2018, by Justice Karen L. Lische of
    the Ontario Court of Justice.

REASONS FOR DECISION

OVERVIEW

[1]

A woman died after she was struck by a road
    grader performing repairs at an intersection in downtown Sudbury. The grader
    driver was employed by Interpaving Limited, a company the respondent, the City
    of Sudbury, had contracted to complete the road repairs. The City employed
    inspectors at the project site, among other things overseeing Interpavings
    contract compliance.

[2]

Interpaving and the City were charged with violations
    of
Construction Projects
, O. Reg. 213/91 (the Regulation), contrary
    to s. 25(1)(c) of the
Occupational Health and Safety Act
, R.S.O. 1990,
    c. O.1

(
OHSA
 or the Act). The City was charged on the basis that it was both
    a constructor and an employer within the meaning of the Act.
[1]

[3]

Interpaving was found guilty but the City was
    acquitted in separate proceedings. The trial judge in the Citys case found
    that there was no signaller in assisting the grader operator, nor was a fence
    erected between the public way and the worksite, as required by the Regulation.
    However, the trial judge concluded that the City was neither an employer nor a
    constructor and so owed no duties under the Act. The trial judge went on to
    find that, in any event, the City had a due diligence defence to the charges.

[4]

The Crowns appeal was dismissed. The appeal
    judge upheld the trial judges finding that the City was neither an employer nor
    a constructor and did not consider whether the City would have had a due
    diligence defence.

[5]

The Crown was granted leave to appeal to this
    court to determine whether the appeal judge erred in concluding that the City
    was not an employer under the Act. The Citys possible status as a constructor
    was an issue of mixed fact and law and so not subject to appeal under s. 131 of
    the
Provincial Offences
    Act
, R.S.O. 1990, c. P.33 (
POA
).

[6]

We conclude that the City was an employer within
    the meaning of the Act and, as a result, was liable for violations of the Regulation
    found by the trial judge unless it could establish a due diligence defence. The
    appeal is allowed and the decision is remitted as set out below to hear the
    Crowns appeal of the trial judges due diligence finding.

DISCUSSION

Is the City an employer?

[7]

This is an appeal from the judgment of the
    appeal judge. The question for this court is whether the appeal judge erred in
    concluding that the City was not an employer for purposes of the Act.

[8]

At the outset, the Crown reminds the court that
    the
OHSA
is public welfare legislation, and as such should be read
    liberally and broadly in a manner consistent with its purpose. There is no
    doubt that this is so; this court has consistently instructed that the Act must
    be interpreted generously, rather than narrowly or technically, in order to
    allow it to achieve the purpose of protecting employees health and safety.
    See, most recently,
Ontario
    (Labour) v. Quinton Steel (Wellington) Limited
,
2017 ONCA 1006 at paras. 19-20, and the authorities
    cited.

[9]

Whether the City is an employer turns on the
    application of the definition of employer in s. 1(1) of the
OHSA
,
    which provides as follows:

employer
    means a person who employs one or more workers or contracts for the services of
    one or more workers and includes a contractor or subcontractor who performs
    work or supplies services and a contractor or subcontractor who undertakes with
    an owner, constructor, contractor or subcontractor to perform work or supply
    services
; (employeur)

[10]

The definition embraces both employing and
    contracting for the services of workers, but this appeal can be resolved at the
    first branch of the definition. As this court explained in
R. v. Wyssen
,
    1992 CanLII 7598 (Ont. C.A.), at p. 7, [t]he definition of employer in the
    Act covers two relationships: firstly, that of a person who employs workers and
    secondly, that of one who contracts for the services of workers. A person who
    employs one or more workers is therefore an employer for the purposes of the
    Act and is responsible for ensuring compliance with the Act in the workplace.

[11]

The Act establishes overlapping responsibility
    for health and safety and contemplates the possibility of multiple employers in
    a workplace. In
Wyssen
, at p. 9, the court noted that the relevant enforcement provisions
    in the Act put employers virtually in the position of an insurer who must make
    certain that the prescribed regulations for safety in the work place have been
    complied with before work is undertaken by either employees or independent
    contractors.

[12]

Not only do the duties of the workplace parties
    overlap; one person or entity may also meet the definitions for several
    different workplace parties and therefore be required to assume the duties of
    each of those parties at the same time. For example, a person or entity might
    be subject to duties as an owner as well as an employer and a constructor.

[13]

In this case, there is no doubt that City
    inspectors  employees employed directly by the City  were present on the project
    site and performed a variety of tasks. Among other things, they monitored the job
    site for quality control purposes and monitored the progress of the work to
    confirm that the City was receiving the work it was paying for.

[14]

Plainly, the City employed one or more workers
    at the project site within the meaning of s. 1(1). It is therefore an employer
    for the purposes of the Act and, as
Wyssen
makes clear, that is
    sufficient to dispose of this appeal. The exemption in s. 1(3), which precludes
    an owner from becoming a constructor by engaging a person to oversee quality
    control, does not preclude owners from becoming employers.

[15]

Although Brown J.A. raised a broader question in
    granting leave to appeal to this court  whether control is a requirement in
    cases where a municipality has contracted work to a third party  it is not
    necessary to resolve this question in order to decide this appeal. The City
    employed one or more workers at the project site and so assumed
    responsibilities as an employer under the Act on this basis under the first
    branch of the employer definition. Whether a municipality that contracts work
    to a third party must exercise control over that third party or its workers to
    be an employer under the second branch of the definition raises a number of
    issues that were not sufficiently canvassed in the parties submissions. In our
    view, it would be improvident to decide these issues on the record before us.

[16]

Consequently
, nothing in
    this decision is to be taken as either an endorsement of the appeal judges
    analysis or a determination of whether or not control is an element of the
    definition of employer where a municipality contracts work to a third party.

Did the City exercise due diligence?

[17]

As noted above, the trial judges findings that
    the Regulation was breached by the failure to have a signaller in place to
    assist the grader operator and the failure to erect a fence between the public
    way and the worksite render the City liable as employer for breach of s.
    25(1)(c) of the Act, unless the City succeeds in establishing a due diligence
    defence.

[18]

The Crown argues that the trial courts test for
    due diligence  a matter not addressed by the appeal judge  was wrong in law.
    According to the Crown, the City was required to show that it took all
    reasonable steps to ensure that the
specific
safety violations were
    remedied; general acts directed at safety cannot satisfy the due diligence
    obligation. The Crown submits that, if this court concludes that the City was
    an employer, the necessary findings of fact were made by the trial judge to
    substitute convictions on counts 8 and 9 of the Information (failure to have a
    signaller and failure to erect a fence). In the alternative, the Crown requests
    that a new trial be ordered.

[19]

The City responds that it satisfied its due
    diligence obligations by exercising diligence and prudence in the tendering
    process that resulted in the contract with Interpaving. In the alternative, the
    City argues that it took other steps that were sufficiently specific to meet
    its due diligence obligations as an employer.

[20]

It must be emphasized that this court sits in
    appeal from the decision of the appeal judge, not the trial judge:
Ontario
    (Labour) v. Nugent
, 2019 ONCA 999, 384 C.C.C. (3d) 189, at para. 22. The
    appeal judge made no decision on the due diligence question, but a new trial is
    neither necessary nor appropriate for that reason. The appropriate remedy is to
    remit the matter to the appeal court to hear the Citys appeal of the due
    diligence issue.

[21]

The courts ability to remit the matter flows
    from s.
134 of the
POA
, which incorporates
    ss. 121 and 125 with necessary modifications. In short, s. 121 sets out the
    powers of the first-level appeal court in allowing an appeal from an acquittal.
    Although s. 121 does not explicitly provide that the Court of Appeal may remit
    the matter to the appeal judge to consider an alternative argument, s. 134
    provides that the provision applies in the Court of Appeal with necessary
    modifications. Section 125 provides that, when exercising its power under s.
    121, the court may make any order that justice requires. These provisions
    authorize the court to remit the matter to the appeal court: see e.g.,
R. v. Francis
(1996), 92 O.A.C. 308 (C.A.);
R. v. Thorne
, [1997] O.J. No. 1036 (C.A.);
Ottawa (City) v. Spirak
, 2008 ONCA 299;
Ontario (Ministry of Labour) v. Modern
    Niagara Toronto Inc.
, 2008 ONCA 590, 297 D.L.R.
    (4th) 156;
R. v. Courtice
    Auto Wreckers Limited
, 2014 ONCA 189, 308
    C.C.C. (3d) 571; and
R.
    v. Maxwell
, 2007 ONCA 834.

CONCLUSION

[22]

The appeal is allowed. The decision of the
    appeal court judge is set aside.

[23]

The Crown fairly concedes that the trial judge
    does not appear to have made the necessary factual findings to determine guilt
    on count 10 of the Information and that this charge was somewhat peripheral to
    the event in question. Accordingly, the matter is remitted to the appeal court
    for a hearing before a different judge to consider the Crowns appeal of the
    Citys due diligence defence with respect to counts 8 and 9 of the Information.

Fairburn
    A.C.J.O.

David Watt J.A.

Grant Huscroft
    J.A.

[1]

The City and Interpaving were both charged as employers
    pursuant to s. 25(1)(c) of the Act. The City was also charged as a
    constructor pursuant to s. 23(1)(a) and (b), but Interpaving was not.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario College of Teachers v.
    Bouragba, 2021 ONCA 8

DATE: 20210108

DOCKET: M51998 (C68742) & M52018 (C68742)

Doherty, Zarnett and Coroza
    JJ.A.

BETWEEN

The Ontario College of Teachers

Plaintiff (Respondent)

and

Ahmed Bouragba

Defendant (Appellant)

Ahmed Bouragba, appearing in person

Christine L. Lonsdale and
    Charlotte-Anne Malischewski, for the respondent

Heard: January 4, 2021 by
    video conference

REASONS FOR DECISION

[1]

There are two motions before the court. The
    respondent, The Ontario College of Teachers (the College), seeks to quash the
    appeal brought by Mr. Bouragba on the basis that the order of OBrien J., dated
    September 4, 2020, is interlocutory and appealable only to the Divisional Court
    with leave. The appellant seeks an order staying the order of OBrien J. until
    his appeal from that order has been heard and decided by this court. Mr. Bouragbas
    motion to stay need only be addressed on the merits if the appeal is properly
    brought in this court.

[2]

The appellant appeals the order which fixes
    January 12, 2021 for the hearing of the Colleges motion to discontinue its
    action against the appellant. The order also directs that Mr. Bouragba,
    assuming the Colleges action has not been finally disposed of on the Colleges
    motion to discontinue, may schedule his motion under s. 137.1 of the
Courts
    of Justice Act
after the Supreme Court has determined whether to grant him
    leave to appeal on a related appeal.

[3]

The order under appeal is a scheduling order. It
    sets a date for the hearing of the Colleges motion, and fixes the timing for
    the scheduling of Mr. Bouragbas s. 137.1 motion. The order does not determine
    the merits of either the Colleges motion to discontinue, or Mr. Bouragbas s.
    137.1 motion.

[4]

In her endorsement, OBrien J. does express a
    view concerning the effect of s. 137.1(5) of the
Courts of Justice Act
on the Colleges right to bring a motion to discontinue its action. The appeal,
    however, lies from the order not from the reasons. As indicated above, the
    order speaks only to scheduling matters.

[5]

In oral argument, counsel for the College conceded
    the views of OBrien J. with respect to s. 137.1(5) are not binding on the
    court that will hear the Colleges motion to discontinue its action on January
    12, 2021. We agree with that concession. On the Colleges motion to discontinue
    its action, Mr. Bouragba is free to argue s. 137.1(5) precludes the College
    from bringing a motion to discontinue its action after Mr. Bouragba had
    commenced his motion under s. 137.1 and before the s. 137.1 motion was finally
    disposed of. If Mr. Bouragba chooses to advance that argument, it will be for
    the master hearing the motion to discontinue to decide the merits of that and
    any other argument advanced by him.

[6]

The scheduling order made by OBrien J. is
    interlocutory. This court has no jurisdiction to entertain an appeal. The
    appeal is quashed. As there is no appeal properly before this court, the motion
    to stay the order of OBrien J. is also quashed.

[7]

The College is entitled to costs fixed at
    $1,000, inclusive of disbursements and relevant taxes.

Doherty
    J.A.

B.
    Zarnett J.A.

S.
    Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Natural Resources and
    Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 332

DATE: 20210514

DOCKET: M52429

Miller J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen in Right of Ontario

(Ministry
    of Natural Resources and Forestry)

Respondent (Responding Party)

and

The Town of the South Bruce
    Peninsula

Appellant (Moving Party)

Jonathan C. Lisus and James Renihan,
    for the moving party

Nicholas Adamson and Madeline Ritchie,
    for the responding party

Heard: May 4, 2021 by video conference

ENDORSEMENT

[1]

The Town of South Bruce Peninsula, the moving
    party, is responsible for maintaining Sauble Beach, a popular tourist
    destination. The beach is also the seasonal nesting home of the piping plover,
    a migratory shorebird designated as endangered by the
Endangered Species
    Act, 2007
, S.O. 2007, c. 6 (the
ESA
). Section 10(1) of the
ESA
makes it an offence for any person to damage or destroy the habitat of over
    175 species of plants and animals, including the piping plover. The section
    applies to habitats located on private or public land.

[2]

In addition to its obligations under the
ESA
,
    the Town is required to maintain the beach for the safety of its users. Since 2007,
    when the piping plover returned to Sauble Beach after a 30-year absence, the
    Town has worked closely with the Ministry of Natural Resources and Forestry (MNRF)
    to assist in recovery efforts. The Town has sought to minimize the impact of its
    maintenance on the plovers, to take active steps to protect the few plovers
    nests (typically fewer than five) from predators and accidental interference
    from beach users, and to ensure that the natural features of the beach area
    remain suitable to piping plovers looking for a place to nest. All seemed
    satisfactory until 2017.

[3]

In early April 2017, before the annual arrival of
    the piping plovers, the Town mechanically raked the beach. In late August 2017,
    after the piping plovers had left for the season, the Town advised MNRF of its plan
    for upcoming maintenance. MNRF raised no objections to what was proposed and the
    Town carried out its maintenance.

[4]

Subsequently, the MNRF alleged that the nature and
    extent of the Towns maintenance in April and August exceeded what had been
    proposed and had damaged plover habitat.

[5]

The Town was charged and convicted of two counts
    of damaging piping plover habitat, contrary to s. 10(1)(a) of the
ESA
.
    The convictions were upheld on appeal by Morneau J. of the Ontario Court of
    Justice (the Appeal Judge).

[6]

The Town seeks leave to appeal to this court
    pursuant to s. 139(1) of the
Provincial Offences Act
, R.S.O. 1990, c.
    P.33 (the
POA
). It raises two issues: (i) the Appeal Judge (and the
    Justice of the Peace below) erred in their interpretation of s. 10(1) of the
ESA
,
    particularly with respect to what constitutes damage to a species habitat
    and the evidence required to prove it, and (ii) the Appeal Judge (and the Justice
    of the Peace) erred in applying the test in
White Burgess Langille Inman v.
    Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182 governing the
    admissibility of expert evidence in the context of a regulatory offence.

[7]

The threshold for granting leave to appeal pursuant
    to s. 139 of the
POA
is high. Section 139(1) provides that leave is
    only available on special grounds upon a question of law alone. Section 139(2)
    further specifies that no leave shall be granted unless, in the particular
    circumstances of the case, it is essential in the public interest or for the
    due administration of justice that leave be granted.

[8]

The Town argues that the Appeal Judge erred by
    interpreting damage too broadly, to include any change, no matter how
    temporary, that would make an area less attractive, useful or valuable to a
    species. This would capture any change that made a habitat less attractive to a
    species to any degree  regardless of whether it was a trifling inconvenience or
    capable of having any practical impact on the life processes of the species in
    question. The Town argues that damage must be interpreted with reference to
    the definition of habitat in the
ESA
, which is defined, in part, as an
    area on which the species depends, directly or indirectly, to carry on its life
    processes: at s. 2(1).

[9]

The Town argues that s. 10(1), properly
    interpreted, would require some assessment  and some evidence  that a change to
    a habitat had some negative impact on the viability of the species. It further
    argues that the interpretation of damage should include a balance between the
    protection of listed species and the economics of industries operating under
    the
ESA
. Furthermore, the public interest requirement from s. 139(2) is
    satisfied, it argues, by the number of land owners and users who are at risk of
    violating the
ESA
or are constrained in their use of land, due to an
    overly expansive and rigid interpretation of s. 10(1).

[10]

The Crown concedes that the interpretation of
    damage in the context of the
ESA
is a legal question, but argues
    that the Appeal Judge made no error in her interpretation of s. 10(1). It argues,
    further, that the interpretation advanced by the Town is untenable, as s. 10(1)
    is a strict liability offence that is established on proof that a habitat has
    been damaged to any degree, independently of any harm to a species. Finally, the
    Crown argues that an appeal on this question is not essential either to the public
    interest or the due administration of justice.

[11]

I am satisfied that leave ought to be granted on
    this question. The interpretation of the
ESA
provided by the Appeal
    Judge may be found to be right. However, the questions raised by the Town are serious
    and their resolution will make the legislation more determinate and thus capable
    of providing greater guidance to those subject to it. Further, there are a
    great many persons who are required to conform their behaviour to the demands
    of statute. The
ESA
is of such broad application  impacting private
    and public landowners as well as any member of the public using such lands  that
    as with
R. v. Castonguay Blasting
, 2011 ONCA 292, 58 C.E.L.R. (3d) 30,
Ontario (Labour) v. Sudbury (City)
, 2019 ONCA 854, 93 M.P.L.R. (5th)
    179,

and
R. v. Hicks
, 2014 ONCA 756, its interpretation is a
    matter of public interest. Furthermore, as with
Hicks
, this seems to
    be this courts first opportunity to apply this section.

[12]

I would also grant leave on the second issue. It
    is true that
White Burgess
has received considerable attention from
    this court and others since it was decided. There may prove to be no questions
    of nuance about its application in a regulatory setting that have not already been
    canvassed in the criminal and civil context. However, guidance from this court on
    such a fundamental question of law related to the administration justice is
    appropriate, and I am satisfied that leave should be granted on this basis.

DISPOSITION

[13]

The motion for leave to appeal is granted.

B.W. Miller J.A.