Private Prosecution by Neighbour over Boundary Tree - Tree By-law Conviction Upheld on Appeal

Disputes between neighbours about boundary trees are not uncommon; private prosecutions by neighbours against neighbours, especially concerning boundary trees, are uncommon.  In a recent decision, Justice Libman of the Ontario Court of Justice upheld a lower court conviction obtained on a private prosecution with respect to a violation of the Forestry Act, R.S.O. 1990, c. F-26.  One neighbour contended that the other neighbour cut down a shared Norway maple tree without consent, which is generally a requirement of Section 10(3) of the Forestry Act.  He brought forward a charge against his neighbour in the Provincial Offences Court.

Although there was a permit or Certificate of Exemption issued by the City of Toronto for the removal of the tree (granted on the basis of concerns that the tree posed a hazard), the permit made it clear that the determination of the ownership of the tree was the responsibility of the party applying for permit.  In other words, the permit itself did not relieve the applicant (the neighbour who wished to cut down the tree) of any responsibilities he might have at Common Law or through legislation like the Forestry Act.

And although there are cases in which a neighbour might remove a tree without the other neighbour's consent. such as a case where the tree is causing a nuisance or where the removal is needed urgently and consent cannot be obtained in a timely manner, Justice Libman found that this was not such a case.  Where it was already well known that the neighbours opposed the removal of the tree, the other neighbour, permit or not, could not simply go ahead and have the tree removed.  For these reasons, the appeal from the conviction was dismissed.

The penalty that had been imposed by the trial justice was a fine of $5,000. 

Read the appeal decision at:  Gross v. Scheuermann.

Read the trial decision at: R. (ex rel. Scheuermann) v. Gross.

Read the sentencing decision at: R. (ex rel. Scheuermann) v. Gross.

Chicken farmer fined over improper disposal of dead animals

From the Ministry of the Environment:

Thorold Resident Fined $7,000 For Improper Farming Practices

St. Catharines – A Thorold resident was fined $7,000 for failing to comply with a ministry order and for failing to properly dispose of dead farm animals.

“Environmental protection legislation protects communities and the environment. Breaking these rules can result in serious penalties and is an offence the ministry takes very seriously,” said Environment Minister Jim Bradley.

Tom Sarantakos operates a chicken farm located in Thorold. The chickens are raised for about eight to nine weeks and are then taken for slaughter.

The ministry received a number of complaints of manure runoff, foul odours, excessive insects and escaping chickens. Following a number of inspections by ministry staff, Mr. Sarantakos was issued a ministry order requiring him to take various measures to manage the manure on the farm. The final order required Mr. Sarantakos to provide proof of manure removal. Mr. Sarantakos failed to comply with the order.

Mr. Sarantakos lives at a second farm location. An inspection of this farming operation revealed numerous dead farm animals, namely chickens that appeared to have died well in excess of the 48 hour duration permitted, following the death of an animal for proper disposal.

Mr. Sarantakos was fined a total of $7,000 plus victim fine surcharges of $1,750 and given 90 days to pay the fine.

Wheel off wood chipper case sent back for new trial

Ontario Ministry of Transportation (MTO) officers investigated a truck stopped along a highway.  Attached to the truck was a wood chipping machine that was missing its right wheel.  The hub of the wheel was located at the end of a scrape mark in the pavement, but the wheel was not found.  The wheel hub had the eight wheel-fastening bolts shorn from where the wheel should have been attached.

The truck belonged to a tree services company.  The MTO charged the company and the person that was present with the truck with offences under the Highway Traffic Act (HTA) - the company was charged with a "wheel-off" offence and the individual was charged with driving an unsafe vehicle.

The Justice of the Peace at trial acquitted both defendants, finding that the wood chipper was not a vehicle (an essential ingredient of each charge).  A wood chipper was being towed, but was not a "thing used for transporting people or goods on land".  The Crown appealed the decision, arguing that the JP erred in not taking a purposive or purpose-based approach to the interpretation of the charging provisions. 

On appeal, a judge of the Ontario Court of Justice agreed that the purposive approach is to be applied and results in a finding that the wood chipper was, in fact, a vehicle for the purposes of the HTA.  However, the judge also noted that there were other defences that could have possibly been raised by the defendants at trial, but that were not necessary for the trial judge to deal with (given the ruling on a wood chipper not being a vehicle).  Both charges were sent back for a new trial.

Read the decision at: Ontario (Ministry of Transportation) v. Tsapoitis.

OHSA conviction of farm operation upheld on appeal

An employee of a chick hatchery operation was injured when she fell climbing down from a storage trailer used to house paper liners used in shipping crates.  The employee broke her leg.  The hatchery was charged under the Occupational Health and Safety Act for failing "to take the reasonable precaution of ensuring that adequate access and/or egress was provided for a transport storage trailer".  The hatchery was convicted at trial and appealed the conviction.

Justice Nadel of the Ontario Court of Justice upheld the conviction, finding that, "while the set of steps may once have worked well and may once have been adequate to their purpose that was no longer the case after the trailer had been moved. ... A gap of two feet between rungs of a ladder or a rise of two feet between the treads of a set of steps is, in my view, self-evidently unsafe.  Likewise, a gap of two feet between the top of a set of steps and the platform those steps are intended to give access to is equally self-evidently unsafe and inadequate to the purpose."

The defendant had taken the position on the appeal that, "there is no offence known to the law of Ontario that requires an employer in a farming operation to take the reasonable precaution of ensuring that adequate access and/or egress is provided for a storage facility where the employee's task requires her to work at a height that is less than three metres" (as paraphrased by Justice Nadel).  This was rejected by the Court.

Read the decision at: Ontario (Ministry of Labour) v. Stratford Chick Hatchery Ltd.

Michael Schmidt seeking leave to appeal conviction and sentence

Durham-area farmer Michael Schmidt is asking for leave to appeal his conviction on 15 charges related to the sale of raw milk along with the sentence handed down following the conviction.  Schmidt was sentenced to a fine of $9,150 and one year of probation.  The appeal would be heard by the Ontario Court of Appeal.
Justice Tetley's reasons for sentencing Schmidt are available on the website of the Canadian Constitution Foundation.  The Crown had asked for $1,000 per count for each of ten convictions under the Health Protection and Promotion Act, R.S.O. 1990, c. H-7, and $200 for two other counts under the same Act.  The Crown sought a fine of $5,000 for the offence under the Milk Act of operating a milk plant without a licence during the fourteen week period of the investigation by the Ministry of Natural Resources. 

In handing down the sentence, Justice Tetley declined to rule that Schmidt's was a test case in which it would be appropriate to moderate the sentence.  Tetley did agree, however, that a relevant factor in sentencing was the fact that Schmidt believed he was complying with the applicable legislation.  Justice Tetley added that the extended period of time where regulatory enforcement procedures were not instituted may reasonably be concluded to have contributed to a mistaken belief on the part of Schmidt that he was in compliance with the law. 

Read the decision at: R. v. Schmidt.

Reasons for Decision in Michael Schmidt raw milk case released

The Reasons for Decision of Justice P.D. Tetley in the Michael Schmidt raw milk case are now available at: R. v. Schmidt.  Schmidt had been acquitted of all charges against him by a Justice of the Peace, but that decision has now been overturned and he has been convicted on 15 of 19 charges against him under the Provincial Offences Act (see my recent post).  The POA charges arose from alleged violations of the Health Protection and Promotion Act, R.S.O. 1990, c. H-7 (17 counts) and the Milk Act, R.S.O. 1990, c. M-12 (2 counts).  Counsel for the parties have been asked to confer with the trial coordinator to set a date for sentencing of Mr. Schmidt.

Neighbour launches private prosecution against neighbour over fence line

One neighbour (the Prosecutor, Neighbour 1) and another neighbour and her mother (collectively referred to as the Defendant, Neighbour 2), have lived side by side for over 25 years.  For much of that period, the families lived in harmony as neighbours.  In 2003 or 2004 for a variety of reasons, the friendship ended with the two neighbours feuding constantly, becoming bitter enemies.  Both sides turned to the police, to other neighbours, and the Courts to help resolve their disputes.  Despite mediation attempts by the police services and the Courts, the two remain locked in an adversarial relationship and affirm nothing more than to be left in peace and free from any communication with each other.  Neither party wished to move from their residence.  Despite the Court’s invitation to resolve matters in an amicable fashion, neither wished to deal with their matter outside of a trial.  The acrimony continued and eventually manifested itself as a dispute over respective property rights and disagreements about shared property line activities.

Ultimately, Neighbour 1 launched a Private Prosecution as an unrepresented prosecutor operating under the advice given to her from the Municipality under the jurisdiction of the By-Law 172-2006. Her position was that she had proven beyond a reasonable doubt that Neighbour 2 offended By-Law 172-2006 (related to fencing) and she asked the Court to render a conviction on behalf of the Municipality in order to compel the Defendant to pay for their 50% share of the total cost of a fence Neighbour 1 had installed on what she says is the property boundary along with any penalties that the Court sees fit to impose.  She had installed the fence and then demanded payment from her neighbours, failing which she would launch a "court action". 

Procedurally the carriage of Private Prosecutions under the Provincial Offences Act is similar to the Criminal Courts where an individual may swear an Information charging another entity with an Offence. Following an ex parte hearing on the matter, a Justice being satisfied that some evidence is received on all essential elements may refer the matter to a set date court at which point the Provincial Crown will decide whether or not to take carriage of the charge. In some instances where the Crown deems no merit in proceeding with a prosecution, the Crown sometimes will take carriage and then act under its jurisdiction to ask the Court to stay the charge or to withdraw the charge. When the Crown makes the determination not to be involved, then the Informant has the option of continuing with the Prosecution or it may abandon it. Normally, the Crown will make such an assessment on the merits of the case and on the evidence taken in order to decide whether or not they wish to be involved. Each case is assessed on its own merits.

Even though unrepresented, it appears from the comments made by Neighbour 1 along the way, that she had been receiving advice on how to conduct her case from the Municipality.  Additionally, she was given the requisite By-Law and a copy of the recommended procedures to follow as well as sample letters to send out to the other party.  The Court wondered if this assistance could be perceived by some private residents as sometimes crossing the line between procedural assistance and legal advice.

In the end, the Court found that Neighbour 1 had not proven beyond a reasonable doubt that the Defendant had violated the by-law and entered an acquittal.
 Read the decision at: Private Prosecution.