CITATION: Desmarais v.
Fort Erie (Town), 2026 ONSC 1126
COURT FILE NO.: CV-21-00060272-0000
DATE: 2026-02-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
)
)
Raymond Desmarais
) Self-represented
Plaintiff )
– and –
The Corporation of the Town of Fort Erie, ) B. Remigis,
for the Defendants
The Regional Municipality of Niagara )
Police Services Board
)
Defendants )
)
)
)
)
)
)
) HEARD: January 20-23 & 30, 2026
The Honourable Justice J. R. Henderson
REASONS FOR JUDGMENT
[1] The
plaintiff was at all times an occupier of a property in the Town of Fort Erie
known as 2327
Dominion Road, Ridgeway, Ontario, (“the property”). The plaintiff lived on
the property and
operated a business as a motor vehicle mechanic from the property.
[2] Pursuant to
the Building Code Act, 1992, S.O. 1992, c. 23 (“BCA”), the Corporation of the
Town of Fort Erie (“the Town”), issued an order, dated February 6, 2020
(“the February 2020
order”), requiring the repair or demolition of four specific structures on
the property, including
two garages, a tall barn, and a lean-to shed, and the removal of all refuse
and debris from the
property, including a long list of damaged or derelict motor vehicles,
boats, trailers, tools, and
mechanical equipment. Neither the owner of the property, Tammy Franzen
(“Tammy”), nor
the plaintiff complied with the order.
[3] Subsequently,
on February 1, 2, and 3, 2021, the Town, through its employees and contractors,
entered onto the property, demolished the four structures that were the
subject of the order, and
removed many items of personal property that were listed in the February
2020 order, including
motor vehicles, boats, trailers, tools, and mechanical equipment.
[4] The
plaintiff alleges that he was the owner of the personal property that was
removed by the
Town. The plaintiff further alleges that the February 2020 order was
invalid or unauthorized,
that the Town did not have the authority to enter onto the property, that
the personal property
removed by the Town did not constitute refuse or debris, that the Town did
not take reasonable
care in enforcing the order, and that the Town failed to account to him for
the items that were
removed from the property. In the statement of claim, the plaintiff claims
damages of
$200,000.
[5] The Town
submits that it had the authority to make the February 2020 order and enter
onto the
property pursuant to the provisions of the BCA, that the February 2020
order is final and
binding pursuant to s.15.3(7) of the BCA, and that it lawfully enforced the
order. The Town
also submits that it is immune from liability pursuant to s.15.4(3) of the
BCA.
[6] The
plaintiff also alleges that the Regional Municipality of Niagara Police
Services Board (“the
NRP”) breached a duty to the plaintiff by not intervening to prevent the
theft of his personal
property and by failing to enforce mandatory orders related to the COVID-19
pandemic. Those
allegations are denied by the NRP.
[7] In the
alternative, if there is any liability on the Town or the NRP, the defendants
submit that
the plaintiff is unable to prove any damages.
[8] The
following issues arise:
1. Is the February 2020 order a valid and binding order?
2. Did the Town have the authority to enter onto the property to enforce the
February
2020 order?
3. Did the Town breach any duty of care owed to the plaintiff when the Town
enforced
the order in
February 2021?
4. Did the Town breach any duty to account to the plaintiff for the personal
property that
was removed
from the property?
5. Did the NRP breach any duty of care owed to the plaintiff?
6. If there is any liability on the Town or the NRP, did the conduct of either
defendant
cause the
plaintiff to suffer any damages?
THE FACTS
[9] The property
is approximately three acres in size. A house and a large barn have been on the
property since at least 1997. There is no dispute that by 2020 there were
several other
structures on the property, including two garages and a storage shed.
[10] The
plaintiff purchased the property in approximately 1997. The plaintiff
transferred legal
title to the property to Tammy in approximately 2002, but he continued to
occupy the
property thereafter. I do not accept the plaintiff’s submission that he was
the true owner of
the property. The plaintiff testified that he only transferred title to his
friend, Tammy, so
that she could use the property as collateral for a loan. However, the
plaintiff did not dispute
the Parcel Register that shows that he transferred the property to Tammy in
2002 for
$90,000. Further, the plaintiff acknowledged that Tammy paid the mortgage
on the
property after she acquired title in 2002, and he further acknowledged that
he paid “rent”
to Tammy by doing labour and taking care of the property for her.
[11] Accordingly,
I find that at all material times Tammy was the legal owner of the property,
and that the plaintiff was an occupier of the property and the primary
resident of the
property. Regarding personal property, I find that the plaintiff was the
owner of all of the
items of personal property that were listed in the February 2020 order, and
all of the
personal property that was removed by the Town.
[12] I find that
the plaintiff operated a business as a mechanic under the name of “Mobile
Mechanic”. His business included the restoration and repair of motor
vehicles for
customers. He testified that he had many motor vehicles, trailers, and
boats on the property
that he was repairing or restoring at any given time. He also had many old
inoperable
vehicles that were used for parts. Some of these vehicles, boats, and
trailers were stored in
the barn or a garage, but I find that most were left outside and exposed to
the elements.
[13] The
plaintiff also owned tools and mechanical equipment that he used in his
business and
stored on the property. I find that some of the tools and equipment were
stored inside a
garage or shed on the property, but again some of the mechanical equipment,
such as the
tire changing machine, were left outside in the elements.
[14] Officer John
Bridgeman (“Bridgeman”) is a by-law officer for the Town. After receiving
a complaint about the state of the property, Bridgeman and another Town
employee
attended at the property on January 29, 2020. Bridgeman testified, and I
accept, that there
were many vehicles, boats, and trailers scattered about the property, most
of which were
inoperable, damaged, or in a state of disrepair. I also accept Bridgeman’s
evidence that
there were tools and pieces of equipment that had been left outside exposed
to the elements,
and appeared to be unusable, rusted, or abandoned.
[15] Bridgeman
testified that, in his opinion, some of the structures on the property were
dilapidated or were otherwise unsafe. He testified, and I accept, that
there was a 2016 stop
work order regarding work on one of the garages, that at least two
structures did not have
a complete roof, that some of the walls of the structures were unfinished,
and that the
interiors of the structures were exposed to the elements. Further, the roof
of one of the
structures had collapsed and was sitting on top of an old vehicle.
[16] Pursuant to
s.15.1(3) of the BCA, the Town had enacted a Property Standards By-law,
known as By-law No. 186-08 (“the By-law”), that prescribed standards for
maintaining
and occupying property in the Town. The By-law, originally enacted in 2008,
was in force
at all relevant times.
[17] Section 3.1
of the By-law reads, in part, “Every yard, including vacant lots shall be kept
clean and free from: (i) refuse or derelict vehicles unless it is
necessarily incidental to the
normal operation of an industrial or commercial enterprise..., (ii) long
grass, brush,
undergrowth and weeds..., (iii) dilapidated, collapsed or partially
constructed structures
which are not currently under construction.”
[18] The term
“refuse” is defined in the By-law to include “(a) debris, junk, rubbish, or
effluent..., and without limiting the foregoing, all garbage, discarded
material or things,
broken or dismantled things, and materials or things exposed to the
elements; (b) wrecked,
dismantled, partially dismantled, inoperative, discarded or abandoned
machinery, trailers,
boats, or vehicles and parts or accessories thereof”.
[19] The term
“debris” is defined to mean any material whatsoever capable of holding water
and includes “tires, cars, boats, containers of any kind and garden
fixtures.”
[20] The term
“derelict vehicle” is defined as “a used vehicle or the body or chassis of a
used
vehicle that (a) is not in an operating condition and is rusted, wrecked or
partly wrecked or
is dismantled or partly dismantled; and (b) is not insured and
registered...and does not have
a current, valid license [sic] plate attached to it; and (c) has been
entirely or partially located
outside of a building for more than 30 days.”
[21] After he
made his observations on January 29, 2020, Bridgeman issued the February 2020
order pursuant to s.15.2(2) of the BCA, on behalf of the Town. Regarding
the structures on
the property, the February 2020 order required the repair or demolition of
the tall barn, a
three-car garage, a two-car garage, and a lean-to shed.
[22] Regarding
the personal property on the property, the February 2020 order required the
removal of all refuse and debris. Among other things, the order contained a
list of specific
items that Bridgeman identified as refuse, debris, or derelict vehicles
that required removal.
The list included 29 motor vehicles, a transport tractor-trailer, five
boats, nine trailers, two
forklift trucks, a bobcat, and an airplane. The order also required the
removal of
miscellaneous refuse and debris, including scrap metal, disused lumber,
building materials,
car parts, tires, and disused commercial equipment.
[23] The February
2020 order was mailed to the owner of the property, Tammy. Because
Bridgeman had spoken to the plaintiff and knew that the personal items
belonged to the
plaintiff, on February 7, 2020, Bridgeman posted a copy of the February
2020 order on the
door of the plaintiff’s residence on the property. I find that the February
2020 order came
to the attention of the plaintiff either through Tammy or through the copy
of the order that
Bridgeman posted on the door.
[24] The plaintiff appealed the February
2020 order to the Property Standards Committee of the
Town. The appeal was heard on March 5, 2020. Bridgeman attended the hearing
and
provided some testimony. The plaintiff addressed the committee, although he
left the
hearing before it concluded and without giving any sworn evidence. It is
apparent that the
plaintiff informed the committee that he vehemently opposed the order and
that he was
upset about the order.
[25] The Property Standards Committee
upheld the February 2020 order and made an order
requiring compliance with the February 2020 order on or before April 5,
2020. Letters
dated March 6, 2020, that set out the decision of the committee were mailed
to the plaintiff
and Tammy. Neither Tammy nor the plaintiff complied with the February 2020
order.
[26] Consequently, on November 6, 2020,
the Town delivered a Final Notice to the plaintiff
informing him that he was required to comply with the February 2020 order
by
November 20, 2020, failing which the Town would carry out the necessary
work at the
expense of the plaintiff. I find that Bridgman again posted a copy of this
Final Notice on
the door of the plaintiff’s residence. I do not accept the plaintiff’s
evidence that he did not
receive a copy of the Final Notice, as the evidence shows that he contacted
police on
November 6, 2020, and complained that Bridgeman had been trespassing on his
property.
Again, neither Tammy nor the plaintiff complied with the February 2020
order.
[27] On February 1, 2, and 3, 2021,
Bridgeman attended the property with Town employees and
contractors to enforce the order. The Town had retained V. Gibbons
Contracting Ltd.
(“Gibbons”) to demolish the structures and remove all of the refuse and
debris. Gibbons
had arranged for Modern Landfill to provide dumpsters that were used to
dispose of the
refuse and debris. The Town had also retained Anytime Towing to tow the
derelict vehicles
to a scrapyard.
[28] When Bridgeman arrived on the
property on February 1, 2021, Bridgeman discussed the
process with the plaintiff, at which time Bridgeman told the plaintiff that
if he wished to
keep some of the items that were listed in the order, Bridgeman would
arrange to place
those items in a designated area of the property for the plaintiff. I find
that, in this way,
several items that were listed in the February 2020 order were set aside
for the plaintiff to
keep.
[29] The four structures on the property
that were the subject of the February 2020 order were
demolished and removed by the Town and its contractors. All of the
miscellaneous refuse
and debris, including old cans, car parts, scrap lumber, building material,
scrap metal and
abandoned furniture was placed in dumpsters and removed by Modern Landfill.
[30] Many of the motor vehicles that were
listed in the February 2020 order were towed by
Anytime Towing to a scrapyard. Some of the boats, trailers, and mechanical
equipment
listed in the order were demolished on site, placed in a dumpster, and
removed by Modern
Landfill.
[31] However, the Town did not remove all
of the items of personal property listed in the
February 2020 order. Pursuant to arrangements made by the plaintiff, some
of the listed
motor vehicles were towed from the property to unknown destinations by
friends of the
plaintiff. In addition, the Town left several listed items on the property
for the plaintiff,
including a few motor vehicles, two boats, one airplane, and some tools and
equipment.
[32] Unfortunately, neither the plaintiff
nor Bridgeman have a clear record as to what was
removed and what was left on the property. While they were on the witness
stand, they
both simply produced photographs of certain items and gave evidence as to
whether that
particular item had been removed or left. Neither party attempted to give
evidence as to
what was done or not done with each item listed in the order.
THE VALIDITY OF THE FEBRUARY 2020 ORDER
[33]
Responsibility for determining property
standards within a municipality rests entirely with
the municipality. The Superior Court of Justice has no inherent
jurisdiction to determine or
adjudicate property standards within a municipality: see Anderson v.
Hamilton (City)
(2009), 315 D.L.R. (4th) 486 (ON SC), at para. 14. Accordingly, in
determining the validity
of a municipal order made pursuant to the BCA regarding property standards,
this court is
bound by the provisions of the legislation.
[34] I note that the Superior Court of
Justice is the appellate court for appeals from decisions of
a Property Standards Committee, pursuant to s.15.3(4) of the BCA. However,
in this case,
the plaintiff chose not to appeal the decision of the Property Standards
Committee. Thus,
the present action is not an appeal from the committee, and it should not
be treated as one.
[35] The BCA authorizes a municipality to
prescribe property standards and enforce compliance
with those standards. Pursuant to s.15.1(3) of the BCA, a municipality is
authorized to pass
by-laws to prescribe standards for the maintenance and occupancy of
property within a
municipality and to require property that does not conform with the
standards to be
repaired, maintained, or cleared to conform with the standards. There is no
question that
the By-law in this case was lawfully enacted pursuant to the provisions of
the BCA.
[36] As indicated earlier, among other
things, the By-law requires properties in the Town to be
kept clean and free from debris, refuse, derelict vehicles, and
dilapidated, collapsed, or
partially constructed structures.
[37] Section 15.2(1) of the BCA permits
an officer of a municipality to enter upon any property
at any reasonable time for the purpose of inspecting the property to
determine whether the
property conforms with the property standards prescribed in a by-law. I
find that
Bridgeman lawfully entered on the property on January 29, 2020, for this
purpose.
[38] Section 15.2(2) of the BCA permits
an officer of the municipality who finds that a property
does not conform with the standards prescribed in a by-law may make an
order giving
reasonable particulars of the repairs to be made or stating that the site
is to be cleared of
buildings, structures, debris or refuse, and indicating the time for
compliance with the
order.
[39] I find that Bridgeman made
observations on January 29, 2020, which led him to conclude
that the property did not conform with the standards prescribed in the
By-law. Bridgeman
prepared a long list of items on the property that he determined fell
within the definitions
of “refuse”, “debris”, or “derelict vehicle” as set out in the By-law. The
specific list of the
vehicles, boats, trailers, tools, and equipment that did not conform with
the standards is
clearly set out in the February 2020 order. Moreover, the February 2020
order clearly
identified the four structures that Bridgeman believed were dilapidated,
collapsed, or in
need of repair. Therefore, I find that Bridgeman, on behalf of the Town,
lawfully issued
the February 2020 order.
[40] Section 15.2(3) of the BCA requires
that any order made under s.15.2(2) be served on the
owner of the property and such other persons affected by it as the officer
determines. I find
that Bridgeman appropriately served a copy of the February 2020 order on
both the owner
of the property and the plaintiff.
[41] In summary, I find that the Town had
the authority to pass the By-law, that Bridgeman had
the authority to inspect the property on behalf of the Town, that Bridgeman
made
observations of conditions that he determined did not conform with the
By-law, that the
February 2020 order was lawfully issued, and that the order was properly
served on the
plaintiff and the owner of the property.
[42] The BCA permits the plaintiff in
this case to appeal the February 2020 order to the Property
Standards Committee, and the plaintiff did so. The appeal was heard by the
committee on
March 5, 2020, and the order was confirmed with a modification of the
compliance date.
The plaintiff had the right to appeal the decision of the committee to the
Superior Court of
Justice, but he chose not to do so.
[43] Section 15.3(7) of the BCA states
that where an order is confirmed or modified by the
committee, or on an appeal by a judge, the order “shall be final and
binding upon the owner
and occupant who shall carry out the repair or demolition within the time
and in the manner
specified in the order.” Therefore, the net effect of the events in this
case is that the
February 2020 order is deemed to be final and binding, with a modification
that required
compliance on or before April 5, 2020.
[44] The plaintiff submitted that some of
the listed vehicles and trailers were operable, or were
licenced and plated. The plaintiff also submitted that some of the items in
the list were tools
of his trade and/or equipment that he used in his business. Therefore, it
is the plaintiff’s
position that some of the vehicles, trailers and tools did not constitute
refuse, debris, or
derelict vehicles. The plaintiff submitted, therefore, that some of these
items should not
have been included in the February 2020 order.
[45] However, I repeat that the February
2020 order is deemed to be final and binding. Further,
as discussed in Anderson, in the absence of an appeal this court does not
have the
jurisdiction to permit the parties to re-litigate the particulars of a
municipal property
standards order. Therefore, this court is required to accept that the items
listed in the
February 2020 order fall within the definitions of refuse, debris, or
derelict vehicles, and
that the owner and the plaintiff were required, among other things, to
remove the items
listed in the order by the prescribed date.
[46] For these reasons, I find that the
February 2020 order is a valid order, that it is final, and
that it is binding. The plaintiff is not now permitted to litigate the
issue of whether some of
the items listed in the February 2020 order should not have been the
subject of the order.
THE TOWN’S AUTHORITY TO ENTER ONTO THE PROPERTY
[47] The plaintiff submitted that,
despite the February 2020 order, representatives of the Town
trespassed on the property as they did not have the right to enter onto the
property on
February 1, 2021, to enforce the order.
[48] I find that the order, as modified
by the Property Standards Committee gave the plaintiff
until April 5, 2020, to comply. Further, I find that the order and the
subsequent
correspondence from the Town informed the plaintiff that if he failed to
comply with the
order, the Town would carry out the required work at the expense of the
owner and the
plaintiff.
[49] The plaintiff was not entitled to
any further notice to comply with the February 2020 order.
However, I find that the Final Notice dated November 6, 2020, gratuitously
extended the
time for the plaintiff to comply to November 20, 2020. Again, that notice
informed the
plaintiff that if he failed to comply with the order, the Town would carry
out the necessary
work at the plaintiff’s expense.
[50] Given that neither the owner nor the
plaintiff complied with the February 2020 order, I find
that the Town had the right to enter onto the property to enforce the
order, pursuant to
s.15.4(1) and (2) of the BCA. Thus, I reject the plaintiff’s submission
that representatives
of the Town trespassed on the property on February 1, 2, and 3, 2021.
THE TOWN’S ENFORCEMENT OF THE ORDER
[51] The plaintiff alleges that the Town
breached its duty to the plaintiff as the Town and its
contractors wrongfully destroyed, damaged, or removed personal property
that belonged
to him when they enforced the order, thereby causing damage to the
plaintiff. The plaintiff
also alleges that the Town wrongfully demolished the entire tall barn as
the original barn
had been in place for many years and only the addition to the barn had an
unfinished roof.
[52] The Town submits that it is immune
from liability pursuant to s.15.4(3) of the BCA that
states, in part, that “a municipal corporation or person acting on its
behalf is not liable to
compensate the owner, occupant or any other person by reason of anything
done by or on
behalf of the municipality in the reasonable exercise of its powers under
subsection (1).”
[53] I find that s.15.4(3) does not
provide absolute immunity to the Town. In my opinion, when
representatives of the Town attend a property to enforce an order made
under s.15.2(2), the
words of s.15.4(3) imply that the Town owes a duty of care to the owner and
the occupants
of the property to reasonably exercise its powers. The Town representatives
are not
permitted to do whatever they want to do.
[54] In addition, the Court of Appeal has
confirmed that a duty of care is owed by a municipality
where the enforcement of a by-law may have an impact on an activity that
takes place on
the property. In the case of Rausch v. Pickering (City), 2013 ONCA 740, 369
D.L.R. (4th)
691, a decision with respect to an animal control by-law, the court stated
at para. 72 that “a
municipality considering whether to enforce a by-law that may restrict a
farm operation is
in a relationship that is close and direct such that a prima facie duty of
care should be
recognized.” In my view, the same principle applies to enforcement of a
by-law that may
restrict any business operated from the property, as in the present case.
[55] Regarding the standard of care,
s.15.4(3) refers to the “reasonable exercise” of the
municipality’s powers. Further, in Rausch, at para. 87-88, the court wrote
that by-law
officers have an obligation to act reasonably and in good faith in any
steps they take to
enforce a by-law. I will add that the by-law officer must also act within
the scope of the
municipal order.
[56] Therefore, I find that in the
present case there was a duty on the Town, and its
representatives, to act within the authority conferred by the February 2020
order, act in
good faith, and exercise reasonable care in enforcing the order.
[57] Regarding the structures on the
property, I find that the plaintiff has no standing to bring
an action against the Town. The structures are all fixtures on the real
property. The property
is owned by Tammy and Tammy is not a party to this action. The plaintiff
has no legal
interest in the structures that were on the property. Therefore, the
plaintiff’s claim, if any,
can only be considered with respect to the personal property.
[58]
Regarding the personal property listed in the
February 2020 order, as I indicated earlier,
neither the plaintiff nor Bridgeman provided an accurate list of what was
removed from
the property, or what was left on the property. However, despite the vague
evidence, the
plaintiff and Bridgeman seem to agree about the fate of many of the listed
items.
[59] Accordingly, with respect to the
personal property, I make the following findings:
1. A great deal of debris including
scrap metal, old cans, pieces of lumber, car
parts, garbage, broken furniture,
and inoperable machinery was put into dumpsters
and taken to a landfill site.
2. The Town removed numerous motor
vehicles from the property that were
damaged, partly dismantled, or in a
state of disrepair. None of the vehicles that were
removed from the property were
operable; any motor vehicle that was removed by
the Town was towed and disposed of
as scrap metal.
3. Some of the vehicles that were
removed by the Town appeared to be licenced or
plated, but there is no clear
evidence regarding the validity or currency of the
licences or insurance. Accordingly,
I find that none of the vehicle licence permits
were valid and current, and none of
the vehicles were insured such that they could
be lawfully operated on a roadway.
4. There is no evidence that the
plaintiff had been repairing any of these vehicles
for customers in the course of his
business. Therefore, I find that none of the
vehicles removed by the Town were
necessarily incidental to the normal operation
of a commercial enterprise.
5. On February 1, 2021, the
plaintiff signed a note by which he requested that any
vehicles removed by the Town be
towed to a scrap metal business known as Atar
Metals. Except as discussed below, I
find that the Town complied with that request.
6. The Town did not remove any motor
vehicle, boat, trailer, or piece of equipment
that was not specifically listed in
the February 2020 order.
7. Some of the motor vehicles that
were listed in the order were towed from the
property by friends of the
plaintiff. There is no clear evidence as to how many or
which vehicles were removed in this
way.
8. Some of the boats, trailers, and
one airplane that were listed in the order were
crushed on the property, put into
dumpsters, and taken to a landfill site.
9. Some of the tools and mechanical
equipment listed in the order that Bridgeman
believed were broken, inoperable, or
abandoned were put into dumpsters and taken
to a landfill site.
10. Bridgeman used his discretion to
permit the plaintiff to keep some of the items
that were listed in the order.
Listed items that were not removed by the Town
included a blue airplane, a white
short bus, the Ford Classic recreational vehicle,
two boats, a red pickup truck, a
yellow Jeep, a riding lawnmower, lawn cutting
tractor attachments, and many
assorted tools.
11. Items that were removed by the
Town included a transport tractor-trailer, a
five-car hauler, a yellow airplane,
two forklift trucks, a bobcat, a U-Haul truck, a
cube van, a Golden camping trailer,
a broken work van with the name Mobile
Mechanic on the side panel, three
boats, a riding lawnmower, an engine hoist, a
hydraulic lift, a tire machine and
numerous inoperable or damaged cars and trucks.
[60] There is a dispute about the Ford
Classic recreational vehicle. Bridgeman testified that he
believes that it was not removed, but the plaintiff testified that it was
removed by the Town.
The photographs that were adduced at trial show this vehicle on the
property. In my view,
this dispute is irrelevant as the Ford Classic recreational vehicle is one
of the items listed
as refuse and debris in the February 2020 order. The Town was entitled to
remove it.
However, on a balance of probabilities, I find that it was not removed by
the Town.
[61] As to the conduct of the Town in
removing the items, I find that the Town employees and
contractors, under Bridgeman’s guidance, exercised reasonable care and good
faith. In
particular, Bridgeman used his discretion to not remove all of the
vehicles, trailers, boats,
and planes that were listed in the February 2020 order. In that respect, I
accept that
Bridgeman discussed the matter with the plaintiff on the first day of the
enforcement and
made the plaintiff aware that if the plaintiff wished to keep specific
items, the Town would
set those items aside for him. The Town was not required to do so, as the
Town had the
authority to remove all of the items listed in the February 2020 order.
[62] Further, I find that, prior to
enforcing the order, the Town exercised reasonable care and
good faith by extending the time for the plaintiff to comply with the
order. Based on the
decision of the Property Standards Committee, the Town could have enforced
the order at
any time after April 5, 2020. The Town however gratuitously extended the
time for
compliance to November 20, 2020, and then chose to wait until February 1,
2021, before
taking action. I accept the evidence that the Town would have preferred
that the plaintiff
simply complied with the order.
[63] Still further, I find that the
plaintiff was agitated while the Town representatives were on
the property. There was a minor verbal altercation between the plaintiff
and a Town
employee. I also accept the evidence that the plaintiff was erratically
driving around the
property while the Town was trying to enforce the order. Despite the
plaintiff’s conduct, I
find that the Town and its employees acted responsibly by avoiding direct
confrontations
with the plaintiff.
[64] I also take into account the fact
that the Town asked the plaintiff where he would like the
vehicles towed, and when he requested that they take the vehicles to Atar
Metals, the Town
complied with his request, except as discussed below.
[65] For these reasons, I find that the
Town acted in good faith, within the scope of the order,
and with reasonable care. The Town did not breach its duty of care to the
plaintiff when it
enforced the February 2020 order.
THE TOWN’S ACCOUNTING TO THE PLAINTIFF
[66] The plaintiff alleges that the Town
breached its duty by failing to inform him of the location
of the items that it removed from his property or provide him with an
opportunity to get
those items back.
[67] In my opinion, the power to dispose
of refuse and debris removed by a municipality is
implicit in a municipal property standards by-law. In the case of Saska v.
Norfolk County,
2015 ONSC 3498, Heeney, J. wrote at para. 28 that a municipality “has the
power to
dispose of debris as a common law bailee, and is subject only to the duty
to act reasonably.”
I adopt that statement.
[68] I find that many of the tools and
equipment, as well as some of the boats and trailers, were
crushed onsite at the property, placed in dumpsters, and taken to a
landfill site by Modern
Landfill. The Town was entitled to take those steps, and the plaintiff was
aware that those
items were deposited in a landfill.
[69] I find that all of the vehicles that
were removed by the Town were treated as scrap metal.
Moreover, the plaintiff knew that the vehicles were being towed to Atar
Metals, at his
request, to be scrapped. He knew where to find those vehicles if he chose
to do so.
[70] Therefore, I find that the plaintiff
was aware of the destinations of most of the items that
were removed by the Town. The only exceptions are the transport
tractor-trailer and a
customized forklift. Those items were apparently discovered by the
plaintiff in Gibbons’
yard. There is no real explanation as to why these items were taken to
Gibbons’ yard as
opposed to Atar Metals or Modern Landfill. In any event, both of these
items were
classified as refuse and debris. The Town was entitled to dispose of them
as they saw fit.
[71] I further find that a citizen does
not have a right to an accounting for the whereabouts of
items that are removed as refuse and debris in the enforcement of a
municipal property
standards order. More specifically, I find that there is no duty on a
municipality to take an
inventory of each item removed as refuse and debris and account for the
value of each item.
As discussed in the Saska decision at para. 30, to require such a duty of a
municipality
would be ludicrous.
[72] In summary, I find that the Town did
not breach any duty to the plaintiff to account for the
whereabouts of the items removed.
THE LIABILITY OF THE NIAGARA REGIONAL POLICE
[73] The plaintiff submits that the NRP
failed to stop the Town from trespassing on his property
and/or stealing his property. There is no merit to either of these
submissions.
[74] Police officers were at the property
pursuant to a contract with the Town for the purpose
of keeping the peace while the Town enforced the February 2020 order. The
police officers
did, in fact, keep the peace. Furthermore, as discussed earlier, the Town
and its
representatives were entitled to enter onto the property and remove the
items listed in the
February 2020 order.
[75] The plaintiff also submits that the
NRP breached a duty by failing to charge the Town
representatives with breaching the mandatory COVID-19 order that was in
effect at the
time. In my view, this submission is entirely irrelevant to the issues
before this court.
[76] In summary, I find that there is no
liability on the NRP.
THE PLAINTIFF’S DAMAGES
[77] There is no need to determine the
plaintiff’s damages given my finding that there is no
liability on either of the defendants. However, if I am incorrect on the
liability issue, I find
that the plaintiff has not proved that either of the defendants has caused
him to suffer any
damages.
[78] The primary thrust of the
plaintiff’s submission on damages relates to the loss of his
personal property. The only proposed evidence of the value of the items
that were removed
are the advertisements downloaded from the Internet that the plaintiff
tendered at trial. I
marked the advertisements as lettered exhibits and reserved my decision as
to whether they
were admissible as evidence. I hereby provide my decision on that issue.
[79] The advertisements that were
tendered were pictures of items that unknown persons were
attempting to sell for a certain price. These advertisements, by their
nature, are hearsay
evidence, and therefore are presumptively inadmissible.
[80] The general rule regarding the
presumptive inadmissibility of hearsay evidence arises from
the fact that the person who is providing the evidence is not before the
court, and therefore
that person cannot be cross-examined by the litigants or assessed by the
court. Thus, it is
difficult to determine the accuracy, precision, and reliability of the
proposed evidence. I
accept that there are some exceptions to this general rule, but those
exceptions all have
specific conditions, including requirements for some indicia of
reliability.
[81] In the present case, the
unreliability of the proposed evidence is obvious as the identity of
the sellers and the sites from which the advertisements were downloaded is
unknown with
respect to most of the lettered exhibits. Moreover, there is no reliable
evidence that the
nature and condition of the items in the advertisements is similar to the
nature and condition
of the items that the plaintiff submits were removed from the property.
Thus, the
advertisements, on their face, have little to no value.
[82] The principled exception to the
hearsay rule requires a litigant who tenders hearsay
evidence to show both the necessity and the reliability of the proposed
evidence. In this
case, the lettered exhibits are remarkably unreliable for the reasons I
have discussed.
Further, it is not necessary to accept these exhibits as evidence of the
value of the items
removed from the property as the plaintiff could have retained the services
of a valuator to
provide an opinion of value.
[83] Furthermore, I find that this
proposed evidence has little relevance to the plaintiff’s
damages claim. That is, even if I were to accept that the advertisements
were legitimate
offers to sell made by law abiding sellers through legitimate websites, it
must be noted that
the advertisements contain suggested sale prices, not valuations. At best,
the
advertisements might provide some information as to replacement costs. That
information
is not at all helpful as a plaintiff who is entitled to damages for lost
property is not entitled
to replacement costs; rather that plaintiff is entitled to recover the
value of the property lost
to him: see S. M. Waddams, The Law of Damages, looseleaf edition (Toronto:
Thomson
Reuters Canada, 2025) at §.1.4.
[84] Therefore, my ruling on this
evidentiary issue is that the advertisements that were tendered
by the plaintiff are not
admissible for the purpose of proving the value of the items that
were removed from the
property. However, the plaintiff testified that the lettered exhibits
constituted his list of
items that he says were removed from the property. Therefore, I will
admit these advertisements
into evidence only for the purpose of assisting me in
understanding the
plaintiff’s position as to what was removed from the property, not for
the value of the items.
[85] Regarding the quantum of
damages, the onus is on the plaintiff in this case to prove his
damages. As Morden J. wrote
in 100 Main Street Ltd. v. W.B. Sullivan Construction Ltd.
(1978), 20 O.R. (2d) 401 at
para.77, “The basic principle is that the onus is on the plaintiff
to prove its damages on a
reasonable preponderance of credible evidence.”
[86] Given my ruling that the
advertisements tendered by the plaintiff are not admissible as
evidence of the value of the
items removed, I find that the plaintiff has not provided any
evidence of the value of the
personal property that he alleges was wrongfully taken from
him. In addition, the
plaintiff has not provided any information that could be used as a
foundation for a valuation,
such as the purchase price, age, condition, or working condition
of most of the items that
the Town removed from the property.
[87] Regarding general damages, the
plaintiff made general comments about his physical and/or
mental health throughout the
trial. However, he provided no medical evidence of any
physical or mental health
problem that was caused by these defendants. I note that the
plaintiff testified that at
one point he threatened to commit suicide, but that evidence was
vague and unsubstantiated.
The plaintiff also provided no evidence of lost income that
would support an economic
loss claim.
[88] I adopt the following
statement from the British Columbia Court of Appeal in the case of
Vancouver Canucks Limited
Partnership v. Canon Canada Inc., 2015 BCCA 144, 76
B.C.L.R. (5th) 80 at para.
146, “A party claiming a loss bears the onus of proving that a
loss has occurred and the
value of that loss. Where there is evidence available to prove its
loss, it is incumbent on the
plaintiff to lead it. If it fails to do so, leaving no basis for
assessment, the court
may...decline to make an award of damages.”
[89] In the present case, I find
that the plaintiff has not proved on a reasonable preponderance
of credible evidence that he
has suffered any damages caused by the removal of his
personal property, that he
has suffered any economic loss, or that he is entitled to general
damages. For all these
reasons, even if the plaintiff could prove liability on the part of
either of the defendants, I
would decline to make an award of damages.
CONCLUSION
[90] In conclusion, I find that the
Town had the authority to make the February 2020 order, that
the Town had the authority
to enter onto the property to enforce the order, that the February
2020 order is final and
binding, that neither the Town nor the NRP breached any duty owed
to the plaintiff, and that
even if there was any liability on the Town or the NRP, the plaintiff
is unable to prove any
damages. Therefore, the plaintiff’s action is hereby dismissed.
[91] If either party wishes to make
submissions as to costs, I direct that the party seeking relief
shall serve and file written
submissions, no longer than five pages within 20 days of the
release of this decision,
with responding submissions to be delivered within 10 days
thereafter. If no
submissions are received within this time frame, the parties will be deemed
to have settled all of the
costs issues as between themselves. A copy of any such
submissions, once filed with
the court, shall also be emailed to the Judicial Assistants at:
St.Catharines.SCJJA@ontario.ca.
_____________________________
Justice J. R. Henderson
Released: February 25, 2026
CITATION: Desmarais v.
Fort Erie (Town), 2026 ONSC 1126
COURT FILE NO.: CV-21-00060272-0000
DATE: 2026-02-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Raymond Desmarais
Plaintiff
– and –
The Corporation of the Town of Fort
Erie, The Regional
Municipality of Niagara Police
Services Board
Defendants
________________________________________________
REASONS FOR JUDGMENT
________________________________________________
J. R. Henderson J.
Released: February 25, 2026
