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15 - September 24, 2019 County Council Minutes _ September 24Page, 20191 r117 Progressive by Nature ELGIN COUNTY COUNCIL MINUTES September 24, 2019 Council Present: Warden Duncan McPhail Deputy Warden Grant Jones Councillor Bob Purcell Councillor Sally Martyn Councillor Tom Marks Councillor Dave Mennill Councillor Dominique Giguere Councillor Ed Ketchabaw Councillor Mary French Staff Present: Julie Gonyou, Chief Administrative Officer Jim Bundschuh, Director of Financial Services Brian Lima, Director of Engineering Services Amy Thomson, Director of Human Resources Michele Harris, Director of Homes and Seniors Services Brian Masschaele, Director of Community and Cultural Services Stephen Gibson, County Solicitor Steve Evans, Manager of Planning (report only) Jenna Fentie, Legislative Services Coordinator Mike Hoogstra, Purchasing Coordinator (report only) 1. CALL TO ORDER Elgin County Council met this 24th day of September, 2019 in the Council Chambers, at the County Administration Building, St. Thomas at 9:02 a.m. with Warden McPhail in the chair. 2. ADOPTION OF MINUTES Moved by: Councillor Purcell Seconded by: Councillor Mennill Resolved that the minutes of the meeting held on September 10, 2019 be adopted. - Motion Carried. 3. DISCLOSURE OF PECUNIARY INTEREST AND THE GENERAL NATURE THEREOF None. 4. PRESENTING PETITIONS, PRESENTATIONS AND DELEGATIONS 4.1 Childhood Cancer Awareness Month — David and Maureen Jenkins David and Maureen Jenkins presented Elgin County Council with the Gold Ribbon Flag and pins in honour of Childhood Cancer Awareness Month. The Jenkins family lost their daughter, Maggie, to childhood cancer in 2014 and continue to keep her memory alive through the Maggie Project, which includes wide-spread national advocacy and fundraising efforts. Warden McPhail thanked the Jenkins family for inviting County Council to join the movement to increase awareness of Childhood Cancer. Warden McPhail made the following proclamation: Moved by: Councillor Marks Seconded by: Councillor Ketchabaw WHEREAS September is officially recognized as Childhood Cancer Awareness Month; and WHEREAS Childcan provides financial, emotional and social support for families and children facing the journey through childhood cancer—from diagnosis, through treatment or recovery or bereavement; and WHEREAS Page 2 September 24, 2019 organizations which support families dealing with childhood cancer are working together to raise awareness of this disease and its devastating effects, as well as raising funds to support the families and children affected, by wearing gold ribbons and pins, lighting buildings in gold and sharing our stories; and WHEREAS raised awareness and funds will help these families and children deal with the emotional and financial toll. NOW, THEREFORE, I, Duncan McPhail, Warden of the Corporation of the County of Elgin, do hereby proclaim September 2019 as Childhood Cancer Awareness Month in the County of Elgin and do commend its thoughtful observance to all citizens of the municipality. - Motion Carried. 5. HEARING OF APPLICATION FOR COUNCIL EXEMPTION FOR WOODLANDS CLEARING PURSUANT TO WOODLANDS CONSERVATION BY-LAW NO. 05-03 Moved by: Councillor Mennill Seconded by: Councillor Jones WHEREAS Lou Nirta and James Morley made Application for a Council Exemption to permit woodlands clearing on lands comprising Part of Lot 4, Concession 14, West Elgin, forming a part of lands designated as Part 1 according to Reference Plan 11 R-5840, such clearing of trees to accommodate construction of a driveway to service their landholding comprising a separate Part of Lot 4, Concession 14, West Elgin and designated as Part 2 according to Reference Plan 11 R-5840; AND WHEREAS the said Application for Council Exemption is objected to by members of the Hickory Grove Campers' Association, at least in part based upon a claim to ownership of a part of the lands to be cleared by adverse possession; AND WHEREAS Elgin County Council conducted a hearing in respect of the said Application and Objection on September 24, 2019, and, in the course of such hearing, considered, among other things, the Application for Council Exemption No. 002-019, a Letter of Objection submitted by legal counsel Adrien Cameron dated July 12, 2019, Report to Council by County Solicitor Stephen Gibson as dated August 30, 2019, and representations by persons in attendance at such hearing and wishing to speak to the said Application and Objection. BE IT NOW RESOLVED THAT, without prejudice to the right of the Applicants to re- apply for a Council Exemption for lands, the title for which is not in dispute, Elgin County Council denies the Application as submitted for the following reasons: 1. The Objector(s) possess a contingent interest in the title to the lands to be harvested and, as such, meet the definition of owner for purposes of Elgin Woodlands Conservation By-Law 05-03. 2. To the extent that the Objector(s) meet the definition of an owner for purposes of Elgin Woodlands Conservation By-Law 05-03, not all owners of the lands to be harvested support the Application for Council Exemption. 3. The issue of ownership of the full extent of the lands to be harvested is currently before the Superior Court of Justice for the Province of Ontario within an action firstly initiated by the Applicants and it would be premature and could pre-empt or adversely reflect upon that matter before the Court and any judicial ruling if Elgin County Council permitted trees to be harvested from the lands whose title is in dispute. 4. A current decision by Elgin County Council to permit the harvesting of trees from lands whose title is in dispute and subject to judicial determination could prove inconsistent with such future determination as to ownership of those lands from which trees are to be harvested. - Motion Carried. Council recessed at 10:20 a.m. and reconvened at 10:31 a.m. Page 3 September 24, 2019 6. COMMITTEE OF THE WHOLE Moved by: Councillor French Seconded by: Councillor Mennill Resolved that we do now move into Committee Of The Whole Council. - Motion Carried. 7. REPORTS OF COUNCIL, OUTSIDE BOARDS AND STAFF 7.1 Quarterly Information Report—Contract Awards April 1, 2019 to June 30, 2019 The Purchasing Coordinator presented the report detailing the contracts awarded over $15,000 from April 1, 2019 to June 30, 2019. Moved by: Councillor Marks Seconded by: Councillor Purcell Resolved that the report titled "Quarterly Information Report— Contract Awards, April 1, 2019 to June 30 2019" from the Purchasing Coordinator dated September 3, 2019 be received and filed. - Motion Carried. 7.2 Approval for Official Plan Amendment No. 3, Municipality of West Elgin, WE- OPA-19 — Manager of Planning The Manager of Planning presented the report detailing the information required in order to consider granting approval to Official Plan Amendment No. 3 to the Municipality of West Elgin Official Plan. Moved by: Councillor Mennill Seconded by: Councillor Jones Resolved that the Council of the Corporation of the County of Elgin approves Official Plan Amendment No. 3 to the Municipality of West Elgin Official Plan, File No. WE-OPA3-19; and that staff be directed to provide notice of this decision in accordance with the Planning Act. - Motion Carried. 7.3 Draft Approval for a Plan of Subdivision — Little Creek West— Manager of Planning The Manager of Planning presented the report detailing the information required to consider granting draft plan approval to Little Creek West Draft Plan of Subdivision (Domus Developments (London) Inc.) in the Municipality of Central Elgin. Moved by: Councillor Martyn Seconded by: Councillor Marks Resolved that the Council of the Corporation of the County of Elgin grant draft plan approval to Little Creek West Draft Plan of Subdivision (Domus Developments (London) Inc.) in the Municipality of Central Elgin (Port Stanley) File No. 34T-CE1901; and that staff be directed to provide notice of this decision subject to the conditions for final approval in accordance with the Planning Act. - Motion Carried. Page 4 September 24, 2019 7.4 Attending Physician Agreement—Terrace Lodge — Director of Homes and Seniors Services The Director of Homes and Seniors Services presented the report recommending that Council authorize staff to enter into a one (1) year attending physician agreement with Dr. Elsie Osagie for Terrace Lodge. Moved by: Councillor Jones Seconded by: Councillor Giguere Resolved that Council authorize staff to sign a one (1) year attending physician agreement from October 23, 2019 to October 22, 2020 with Dr. Elsie Osagie for Terrace Lodge; and that the report titled "Attending Physician Agreement— Terrace Lodge" from the Director of Homes and Seniors Services dated September 17, 2019 be received and filed. - Motion Carried. 7.5 August 2019 Year-To-Date (YTD) Budget Performance — Director of Financial Services The Director of Financial Services presented the August 2019 Year-To-Date Budget Performance for the County with favourable performance of $135,000 for the first eight months of the year. Moved by: Councillor Martyn Seconded by: Councillor French Resolved that the report titled "August 2019 Year-To-Date (YTD) Budget Performance" from the Director of Financial Services dated September 17, 2019 be received and filed. - Motion Carried. 7.6 Amended Deadline for Charitable Tax Rebates — Director of Financial Services The Director of Financial Services presented the report recommending that the Charitable Tax Rebate By-law No. 98-34 be amended to be consistent with provincial legislation. Moved by: Councillor Marks Seconded by: Councillor Giguere Resolved that the Charitable Tax Rebate By-law No. 98-34 be amended to a submission deadline of the last day of February of the following year. - Motion Carried. 7.7 Centennial Road/Elm Line Intersection Improvements — Director of Engineering Services The Director of Engineering Services presented the report detailing potential intersection improvements for the Centennial Road-Elm Line intersection and next steps required regarding the commencement of the required Municipal Class Environmental Assessment Schedule B project study and preliminary design. Moved by: Councillor Marks Seconded by: Councillor Ketchabaw Resolved that the report titled "Centennial Road/Elm Line Intersection Improvements"from the Director of Engineering Services dated September 16, 2019 be received and filed; and that staff commence the required Municipal Class Page 5 September 24, 2019 Environmental Assessment Schedule B project study and preliminary design to identify a preferred intersection improvement alternative for future implementation. - Motion Carried. 7.8 Mount Salem Christian School — Community Safety Zone Request— Director of Engineering Services The Director of Engineering Services presented the report recommending that relevant by-laws be amended to support the establishment of a Community Safety Zone and a 40km/hr When Flashing Reduced Speed Zone along Springfield Road (County Road #40) in the vicinity of Mount Salem Christian School as requested by the Township of Malahide Council. Moved by: Councillor Mennill Seconded by: Councillor Martyn Resolved that the report titled "Mount Salem Christian School — Community Safety Zone Request" from the Director of Engineering Services dated September 12, 2019 be received and filed; and that By-law No. 17-11 be amended to include a dynamic 40km/hr reduced speed zone on Springfield Road from 40m south of the south property limits of Calton Line to 408m southerly; and that the dynamic 40km/hr When Flashing sign shall be active between 7:55 to 8:35 a.m. and 3:15 to 3:50 p.m. daily between Monday to Friday and between September 1 and June 30; and that all capital, operational, and maintenance costs associated with the dynamic signage shall be the responsibility of the Township of Malahide; and further that By-law 17-12 be amended to include a Community Safety Zone on Springfield Road (County Road #40) from 40 m south of the south property limits of Calton Line to 408m southerly; and that the Community Safety Zone shall be in effect between 7:30 a.m. to 4:30 p.m. daily between Monday to Friday from September 1 to June 30. - Motion Carried. 7.9 Rehabilitation of King George VI Lift Bridge — Status Update — Director of Engineering Services The Director of Engineering Services presented the report updating Council on the detailed design, construction cost estimate, the proposed construction schedule, detour, and public consultation for the King George VI Lift Bridge rehabilitation project. Moved by: Councillor Purcell Seconded by: Councillor Martyn Resolved that the report titled "Rehabilitation of King George VI Lift Bridge — Status Update" from the Director of Engineering Services dated September 13, 2019 be received and filed; and that the current bridge weight load limits be maintained. - Motion Carried. 7.10 Provincial Health System Transformation Update — Ontario Health Teams — Chief Administrative Officer The Chief Administrative Officer presented the report updating Council with respect to the Elgin County/St. Thomas Ontario Health Team Initiative. Moved by: Councillor Purcell Seconded by: Councillor Giguere Resolved that the report titled "Provincial Health System Transformation Update — Ontario Health Teams" from the Chief Administrative Officer dated September 17, 2019 be received and filed. Page 6 September 24, 2019 - Motion Carried. 7.11 Public Health Funding Shortfall — Chief Administrative Officer The Chief Administrative Officer presented the report recommending that Council request a report from Southwestern Public Health detailing how the Board intends to adjust its service delivery model to reflect the new provincial funding changes. Moved by: Councillor Purcell Seconded by: Councillor Ketchabaw Resolved that the report titled "Public Health Funding Shortfall" from the Chief Administrative Officer dated September 17, 2019 be received and filed; and that Southwestern Public Health be requested to provide Elgin County Council with a presentation detailing how the Board intends to adjust its service delivery model to reflect the new provincial funding arrangement as soon as possible. - Motion Carried. 8. COUNCIL CORRESPONDENCE 8.1 Items for Information (Consent Agenda) 1. Barry Field, Chief Operating Officer, Southwestern Integrated Fibre Technology Inc. (SWIFT) announcing that the SWIFT Contribution Agreement with the province has been approved for the Phase 2 projects. Moved by: Councillor Jones Seconded by: Councillor French Resolved that Correspondence Item #1 from Barry Field, SWIFT, be received and filed. - Motion Carried. 2. Jo-Ann Hutchison, Ministry of Tourism, Culture, and Sport with information regarding the Investing in Canada Infrastructure Program: Community, Culture and Recreation. Moved by: Councillor Giguere Seconded by: Councillor Martyn Resolved that Correspondence Item #2 from Jo-Ann Hutchison, Ministry of Tourism, Culture, and Sport, be received and filed. - Motion Carried. 3. H.G. Wortelboer, resident of the Township of Malahide, with concerns regarding planning Natural Heritage Designation. Moved by: Councillor Mennill Seconded by: Councillor Giguere Resolved that Correspondence Item #3 from H.G. Wortelboer be received and filed. - Motion Carried. 9. OTHER BUSINESS 9.1 Statements/Inquiries by Members None. Page 7 September 24, 2019 9.2 Notice of Motion None. 9.3 Matters of Urgency None. 10. CLOSED MEETING ITEMS Moved by: Councillor Purcell Seconded by: Councillor Martyn Resolved that we do now proceed into closed meeting session in accordance with the Municipal Act to discuss matters under Municipal Act Section 239 (2): In-Camera Item #1 (k) a position, plan, procedure, criteria or instruction to be applied to any negotiations to be carried on by or on behalf of the municipality or local board—Ambulance Review In-Camera Item #2 (k) a position, plan, procedure, criteria or instruction to be applied to any negotiations carried on or to be carried on by or on behalf of the municipality or local board - IT Support Services In-Camera Item #3 (k) a position, plan, procedure, criteria or instruction to be applied to any negotiations carried on or to be carried on by or on behalf of the municipality or local board— SWIFT In-Camera Item #4 (b) personal matters about an identifiable individual, including municipal or local board employees— Legal Recruitment In-Camera Item #5 (k) a position, plan, procedure, criteria or instruction to be applied to any negotiations carried on or to be carried on by or on behalf of the municipality or local board— Fire Training Officer/Community Emergency Management Coordinator Agreement (VERBAL) In-Camera Item #6 (e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board— Port Bruce Bridge (VERBAL) In-Camera Item #7 (b) a proposed or pending acquisition or disposition of land by the municipality or local board— County Property Disposition — Dutton/Dunwich In-Camera Item #8 (b) personal matters about an identifiable individual, including municipal or local board employees— HR Organizational Review - Motion Carried. 11. RECESS None. Page 8 September 24, 2019 12. MOTION TO RISE AND REPORT Moved by: Councillor Marks Seconded by: Councillor Jones Resolved that we do now rise and report. - Motion Carried. In-Camera Item #1 —Ambulance Review Moved by: Councillor Jones Seconded by: Councillor Mennill Resolved that staff proceed as directed. - Motion Carried. In-Camera Item #2 — IT Support Services Moved by: Councillor Martyn Seconded by: Councillor Giguere Resolved that staff proceed as directed. - Motion Carried. In-Camera Item #3 —SWIFT Moved by: Councillor French Seconded by: Councillor Mennill Resolved that staff proceed as directed. - Motion Carried. In-Camera Item #4— Legal Recruitment Moved by: Councillor Purcell Seconded by: Councillor Giguere Resolved that staff proceed as directed. - Motion Carried. In-Camera Item #5 — Fire Training Officer/Community Emergency Management Coordinator Agreement Moved by: Councillor Jones Seconded by: Councillor Marks Resolved that staff proceed as directed. - Motion Carried. In-Camera Item #6— Port Bruce Bridge Moved by: Councillor Giguere Seconded by: Councillor French Resolved that staff proceed as directed. - Motion Carried. Page 9 September 24, 2019 In-Camera Item #7 — County Property Disposition — Dutton/Dunwich Moved by: Councillor Purcell Seconded by: Councillor Mennill Resolved that staff proceed as directed. - Motion Carried. In-Camera #8 — HR Organizational Review Moved by: Councillor Martyn Seconded by: Councillor Giguere Resolved that staff proceed as directed. - Motion Carried. 13. MOTION TO ADOPT RECOMMENDATIONS FROM THE COMMITTEE OF THE WHOLE Moved by: Councillor Marks Seconded by: Councillor Martyn Resolved that we do now adopt recommendations of the Committee Of The Whole. - Motion Carried. 14. CONSIDERATION OF BY-LAWS 14.1 By-law No. 19-34— Tax Rebate Amendment BEING a By-law to Amend By-law No. 98-34, as Amended, Being a By-law to Provide a Property Tax Rebate Program for Eligible Charities Moved by: Councillor Mennill Seconded by: Councillor Jones Resolved that By-Law No. 19-34 be now read a first, second and third time and finally passed. - Motion Carried. 14.2 By-law No. 19-35 — Speed Zone Amendment BEING a By-law to Amend the Schedule to By-law No. 17-11 Being a By-law to Authorize Speed Limits Moved by: Councillor Giguere Seconded by: Councillor Martyn Resolved that By-law No. 19-35 be now read a first, second and third time and finally passed. - Motion Carried. 14.3 By-law No. 19-36 — Community Safety Zone Amendment BEING a By-law to Amend By-law No. 17-12 Designating Community Safety Zones on County Roads. Moved by: Councillor Mennill Seconded by: Councillor Marks Page 10 September 24, 2019 Resolved that By-law No. 19-36 be now read a first, second and third time and finally passed. - Motion Carried. 14.4 By-law No. 19-37 — Confirming all Actions and Proceedings BEING a By-law to Confirm Proceedings of the Municipal Council of the Corporation of the County of Elgin at the September 24, 2019 Meeting. Moved by: Councillor Purcell Seconded by: Councillor Ketchabaw Resolved that By-law No. 19-37 be now read a first, second and third time and finally passed. - Motion Carried. 15. ADJOURNMENT Moved by: Councillor Marks Seconded by: Councillor Martyn Resolved that we do now adjourn at 12:56 p.m. to meet again on October 8, 2019 at the County Administration Building Council Chambers at 9:00 a.m. - Motion Carried. Julie Gony u, Duncan McPhail, Chief Administrative Officer. Warden. Elgin County FsorcssDr trtN7carc REPORT TO COUNTY COUNCIL FROM: Stephen H. Gibson, County Solicitor DATE: August 30, 2019 SUBJECT: Woodlands Clearing Exemption Application — Lou Nirta/James Morley— Lot 4, Concession 14, Municipality of West Elgin, County of Elgin INTRODUCTION: The purpose of this Report is to inform Council of the details of both the Application for Council Exemption submitted by Lou Nirta/James Morley pursuant to By-Law 05-03 (Woodlands Conservation By-Law) and the Letter of Objection to such Application submitted on behalf of Hickory Grove Campers Association. in light of the aforenoted Objection, a Hearing for Council consideration of the said Application is scheduled for September 24, 2019. BACKGROUND: Lou Nirta and James Morley, as registered landowners, have made Application for Council Exemption to permit the clearing of trees from a portion of their landholding comprising Part of Lot 4, Concession 14, Municipality of West Elgin, Elgin County. The bulk of the landholding is comprised of a parcel located at the extreme southern edge of the lot, on the bluffs above the waters of Lake Erie. Historically, access to the said parcel was over Hickory Grove Campground, located immediately west of the lakeside parcel, although there did exist a 33 foot right of way at the extreme west edge of Lot 4. in 2018, Messrs. Nirta and Morley acquired registered title to the said 33 foot strip of land as well as another 40 foot strip of land immediately to its east— it is understood that the purpose of the combined 73 foot strip of land, or a portion thereof, is an access laneway from Gray Line to the southern parcel overlooking Lake Erie. The Application seeks permission to clear trees from a portion of the now 73 foot combined strip to facilitate construction of the access laneway. It is critical to recognize that trees are proposed to be harvested from the area of the former 33 foot right of way. Attached as Appendix "A" and "B" to this Report is, respectively, a sketch depicting relevant land holdings and a copy of the application for Council Exemption under consideration. The Application for Council Exemption is opposed by the Hickory Grove Campers Association, collectively occupants of the lands immediately west of these lands owned by Messrs. Nirta and Morley and, of most significance to such opposition, abutting the proposed access strip as described above. Correspondence has been received from legal counsel for the said Association, explaining that the objection arises from a dispute as to ownership of a portion of the original 33 foot right of way and from which Messrs. Nirta and Morley propose to remove trees. Attached as Appendix "C" to this Report is a copy of the Letter of Objection filed on behalf of Hickory Grove Campers Association. COMMENTARY/ANALYSIS: Firstly, it is noted that the Applicants Nirta and Morley were previously charged and convicted of violations of By-Law 05-03 for illegal clearing of trees from the original 33 foot right of way. All fines and related charges associated with that conviction have been paid. Secondly, it is noted that, in 2015, Council granted the Applicants an Exemption to harvest trees within the original 33 foot right of way, although that work was not undertaken and the Exemption expired. The Exemption decision required the Applicants to plant 525 trees of species/stock and at a location acceptable to the Tree Commissioner, to pay all monies outstanding in respect of the prior convictions, and to comply with all signage and notice requirements as required by By-Law 05-03 prior to the commencement of the exempted clearance of trees. Thirdly and in respect of the now pending Application, the Tree Commissioner advises that the Applicants have committed to the reforestation of an acceptable area of land adjacent to an existing woodlands and utilizing acceptable species/stock. As a result of such proposed reforestation, the Application appears to comply with the "no net loss" policy fundament to the purpose of By-Law 05-03 and will replace an equivalent, if not larger, woodland area, will enhance and expand an existing woodland, and will increase species diversity within that woodland. Fourthly and again in respect of the now pending Application, the County Solicitor advises that, 1. The text of Section 4 of By-Law 05-03, relating to the Council Exemption process, is attached as Appendix "D" to this Report. 2. The text of the definition of"owner"from Section 1 (cc) of By-Law 05-03 is attached as Appendix "E" to this Report. 3. Given the expanded definition of"owner", to include any person having any right, title, interest, or equity in land, the Objector Campers Association could and likely would qualify as an owner of portions of the original 33 foot right of way lands if the claim to adverse possession as referenced in the Letter of Objection proved successful. If the Campers Association, or individual members thereof, were found to be an owner of such lands, or portions thereof, it follows that such other person, persons, or entity should be a party to and support the Exemption Application where trees are to be harvested from those lands in which he, she or it has an interest in title. Unfortunately, the County Solicitor is not in a position to provide an informed opinion on the merits of the claim to adverse possession or the probabilities of success or failure in the pending court proceeding —as such, it can only be stated that the Objector Campers Association and/or its members possess only a contingent interest in the title to lands from which Messrs. Nirta and Morley appear to propose clearance of trees. Finally and again in respect of the now pending Application, the Tree Commissioner and County Solicitor recommend that, if an Exemption is granted, appropriate terms and conditions should be attached to that permission, including but not necessarily to term/conditions which would ensure compliance with both the "no net loss" policy and procedural requirements under By-Law 05-03. RECOMMENDATION: To ensure objectivity of the pending Hearing before County Council, no recommendations are made within this Report. Both the Tree Commissioner and County Solicitor will be available for assistance to Council at the Hearing of the subject Application. All of which is Respectfully Submitted Approved for Submission Jeff Lawrence Julie Gonyou Tree Commissioner Chief Administrative Officer Stephen H. Gibson County Solicitor 0. a. ict ELGIN MAPPING " J'r""r: �G.' aukY� 4:, '] J= 9 • • • • l�® �a x Q"P • °f / figSrx lF 1t 1: 17,629 0.9 0 0.4S 0.9 IGlometers This map is a user generated static output from an Internet mapping site and i r reference only.Data layers that appear on this map may or may not be accu WGS 1984 Web_Mercator Auxirary_Sphere current or otherwise ref ®Latitude Geographies Group Ltd. THIS MAP IS NOT TO BE USED FOR NAVIGAT nM 1.1.1 Z W 09-4--'18 18 53 FROM- Kettle :reek C„ k. -519- 1-5028 T-652 P0001/0002 •F1:37 17.. • Schedule"W1 Council Exemption for Woodlands Clearing ApplicattOI APPLICATION NUMBER. 1-O j61 I . !We wish to appt r foram ONITIFiiitetitOM the.PMVIZICIM ol:the County of Ogle Ely-Lew Na_ 0S-03•whiob pmhlblte or•regtdates•the destruction or Injury otf'irees. M order teIv-ailowed to remove trees es outlined infihis appliontlon 1.. Naffsfs)df Otmer(s): /.mLi. ttl t re-"rl�? -7A es. ,.(44A.'Ay ; TalOphone:- .t 9 67! 4,4 AP nAaningAddresa: -�- • __..�[4s7 ELI tar QAL.0t� - P -Azt-ttiI.l N ! t__ 1.oi-i t f ry. .D Vo)c - q Z. Lecatldrr of Woodfand Clearing: . • 'Muriidpaljty(TG1fl Viltage,Munioipallty) 1-0e C.( t i5. IA .. Lot 4147.07 L i e y L.,,re, Concession {fie 0 fv� :L - GPS Coordinates Latitude, Longitude s *Civic•Address(Milt) c7. I .707 . •o .l S Pi• Q�Z t . Tax ReitNo. .S 6 0 C000 a. Reaaon forwlshitrg to sleatray or injure-trees; f -'! eS. ovea, aobt},J 4?cnIJ •.Q. rtat.„r1 c,,, . 4. Describe species of trees and Site of tti s to be removed. f. 7y A -e 5. Alen to be cleared(In•metric). Length _ , 5fl metres Width [o realise Area _ (in squero metres or heotares) • a. Has the ovtnet previously applied Pot and been granted permission to destroy'Or , injure treed Yes( )- No('?(') Wyss.please indicate the.Ptxpose to which theywere removed appr ake•df arno cleared-eM date. x S .. f 7, Of erinfarmaiion domed pertinent in this spplaieai an f!8 • 09-25-'18 13:53 FROM- Kett 1 e Creek-C. k. 519-631-5026 T-852 P9002/0002 F-137 -32 . Sohadule"C"continued . 8. Names,mailing address and phone number atilt 4wnst5 Of Wager which b as per land of the owner of the woodlands in reaped-to which this appff u a S ctlon 4 of this By-Law. (tf Insufficient spac,e.please Oath another sheaf t3fpaper) Name Mailn Address Number . - { L 1ev1Cuy RLDBonoiy. • �� ,� wig °1S 1.7 - 9, Each appication must be accompanied by a sketol!,no smetterthan 20 GetIthIldXes1 • • - • •hy 35 ferkffierft,showing: a scale drawing clearly brdlcatin.q the efee I:Mesing to - be cleared andihe area ortrees that wilt remain,all buildings on his owner's property- • and on the ebulling propertyy,and the land use of abutting lands(a.g Walden-et • agrlcuttural,woodlands.rxrmmetrxal,ere) . 10. An on site inspection wilt be made.P eaese mark perimeter Week whinhivNi turaditr if Ns application to granted,byapraying,or some other means,to dearly indica" - du!ing the site>tteit what is being preposad for clearing. ;k J . . --a-P2 ,Ze- < ... ©! Date ate�re of1�p orAutfsat Note:If this application is signed by any person other than the owner,written authorization of the owner(a)must accompanythe appfioal'wn.if the applicant's acarpcualioni the - application must be signed by an Officer(and the poafiron must be indicated)end f corporate evil shall be affixed. i. Plerge+gum completed application foam to:lain County Tree Commissioner nib Utile ,,' - Gteek Can Authority,44815 Ferguson Line,RR#B,&Thomas,Ontario,t4aF 3T3. . trgl fit•,ti.>�XE Yit Ai(tat itlR>2pll 'I3#If3FDEtl�ATl t I. AnApplIcaEort to Council for Exemption to Ctear'Median&riiUst 0e completed in fain.order to be prooessed. An application for an area g,sdtsrthan-t.g trec eret - rrmst be approved by Council and tray require an Errviroamenlat Impact Study. •- II. it shag be normal.prectice that when an owner or his authorized WienitnakEs an • inquiry wilh regard to Vitodlailds Cans vaiiou By.Law No.UG-A the t _ wilt matte an inspection of the property to determine whether or not an Appal:milt:a to Cannot for Exemption for Woo nand 0k4ring►s required. ItI. tbe hectare as is be Igo has areplanted based on 7�0 traaaat for per Revery heotata af land fire and replanted tout a . • same municipality, IV, filoftevf this permit application shell be sent by regutermal tellatewhose WO-abut the land the applicant has outlined.Landowners separated byAware toad allowance/be sYs;41t elan heconeldered to be abutting teZuki uue!t E err of this aypliaathcn maybe m�to appr neinu itnent s A. for review and comer (Le.Conservation Aulhorititia,Ministry of Natural Resources,Ministry of Agriculture Food and Rural Affairs,and kcal Murk' • V.. Once an fippitcatlon to Cound for Exemption.t`orWoodland•Ctearing Is received-the Ofticerwt111 erect and display aput&notice sign at the stdrante tun tile adding - rt,adwayta the land where the Permit r Is f a clear at viable to all persons, , VI. The application will not be conrktered by Council unless forty(40)business days have passed from the date of rapt. I - 1- it i t. <u n t• i ;.ar 1 i r rat — t.t t .. �; C?zd:Cs°.+w. +.t, I a r•, 4•. -r.- {J+" r. --S..8rt•_P 3att•oc +0. ir:• s,.1. ± of....._ '-z: :=:L 2 t ..._y 3"�.'�..__..., t' :` ;fit r a.? f (4t.• ;F r' . - L1..0 yy( I+C:: •3E it=It •-i.N^r.�.:'.371Q 1 A' q i •i-r -*IF, :. - I i 310=15C- r I"— :Cb.M a-fly1 Ga5QdOL0 ' Q ,i ..- ....._- 100, In/ cfc'-,01 V 5 2—a-v.) -95 1 jr.) , u , 1r 1 OF • � 3 s I.ki — Ni — . — ( y�C�S�� g = r = t r . t. '2. 40f.51 h• , 4 r i 03:Cf:0 ;X.fi tit as::' i a ia'T..wi.. 1 s' s fz.1 rF. f �. 3 �` I I 1 , L+�. ..t... gv-V4' • ` I! � tsar s- tE,t t • • ?�G r70 psi , , r i t:• t S - l s3a+ 1 1 i ic' a, XittY SO+t i 13 4 z (ii F i ti u. 1�!$ - -- - � ,�._ wy _._._. vai uiSY:?3: a .-MI IT c=vsi:,=,..- ' '5a.c 0 't�rr-.:- 1»-.;.:w+--s_'_':�' =•uc^--��" <E._.-... '_._— _.rz15,5 Ka r,c�i--/ StYr•}a:2's.G:+:.2tur hti- T,'.=:cy•Ar. l•z - , 5..1 t :.�• Si, E ,-7 k 14 Ci 2. y 2?2 z .- •rr"__-v - 1 OM a i•ti-u~ `` '-quit- &e.) a� -L,r t r,s C 3yua j _.' ,t=- -._F ?::.............L.."'''•]3•y"-_•b .jor-,�r•' - cr tt ' T -c _ •,�,ri._ s. L. _ ._..ts. ___ _3F24 ns I • n t� V V E3 W a. a. Tien P.Cameron rr LAWYERS 505 ed.Talla 2 5[.t 519-6onthin O;100 Z t2 51g6Z9��100+1,_x1.t22 � 510-G?9-7700(Far) acanwton.fraa1stane ri..ca July 12,2019 Our File No.: 0901 VIA E-MAIL Elgin County • 450 Sunset Drive St.Thomas, Ontario,N5R 5V1 Attention: Stephen H. Gibson, County Solicitor Dear Mr. Gibson: . • • Re: Application by Nirta/Morley for Exemption to Elgin County By-Law No. 05-03 Further to our recent communications, including your fax memo, dated July 8, 2019, and the writer's voice mail message to you of July 10,2019,the writer confirms that we wish to vary our client's position as set out in our original letter, dated May 21, 2019, to Jeff Lawrence, Tree Commissioner,Kettle Creek Conservation Authority. As explained in the voice mail message,the writer has recently had an opportunity to take an actual view of lands in question; described as Part 1,Plan 11R 9761, and Part 1, Plan 11R-5840,which were surveyed by Archibald Gray&McKay Ltd.("AGM")on December 5,2017,and the resulting Plan of Survey was deposited on title as Plan 11R-10300 on March 8, 2018. The writer now requires an opportunity to meet with an Ontario Land Surveyor("OLS")from AGM to ensure that we fully understand what is depicted on three plans of survey, two completed by AGM and the other completed by Brian Vaughan,OLS (now retired). In the circumstances, and understanding that the application must be considered by County Council within the prescribed time frames, our client wishes, at least for time being and until the writer has had an opportunity to meet an OLS from AGM,which is being arranged now,to object to the application being sought by Messrs.Nirta and Morley over the approximately 73-foot wide parcel of land situated between Lots 3 and 4, Concession 14, starting 758.90 feet southeast from Gray Line, and continuing for 914.69 feet to its boundary with Part 2, 11R-5840 and beyond by 322.81 feet. We make the observation that the large portions of the lands over which our client maintain its objections consists predominately of greenery and foliage other than woodland (or trees). -2- Our client does not object to the application being sought over the approximately 73-foot wide parcel of land situated between Lots 3 and 4, Concession 14, starting at Gray Line and running southeast for 758.90 feet. We make the observation that this portion of the lands is predominately swampy woodland. For your easy reference,we enclose a copy of Plan 11R-10300,on which we have marked the area over which there is (red) and there is not(yellow) objection. We apologize for any delay and inconvenience created by our client's change in position. We reserve the right to further vary our client's position after the meeting with the OLS is held. Should you have any questions or concerns arising from this letter,please do not hesitate to contact • the writer. r Yours very truly, FRAUTS LAWYERS • Per: Adrien P. Cameron APC/sc Encl. • • cc: Client cc: Lawyers for the Applicants 1 • d' a r• M , Ml b i . `ibl �t1 c dd 6 6R `I/111 111 11 �' ill I�g iiuuu i i P i . 11111 1011 111! lit ill y i !NN 011 N O .4 b { .. ,� • . . r a I ' &mu aN ' „y�{yILN\ I M W"A+M/ ' II/Yivl• II ,. /. / N CN -(' , N� J •1 I In �� ` I/ . 1 1 . 1 t s §'1i I 14 sx +g �a —7' i " —9, m r Yrla 1 "mi LaikaiI N I .t I .v.W yMll� •[ , n z W 0. a. -9— have been or are harvested,destroyed, or injured within two(2) years of the date of enactment of this By-Law. o) The destruction or injury of trees that may occur during the pursuit of normal farming practices as outlined under the Farming and Food Production and Protection Act,S.O. 1998, c. 1,including but not limited to the destruction or injury of trees to prevent the encroachment of woodlands on agricultural production resources; p) The destruction or injury of trees undertaken for the construction of drainage works under the Drainage Act, R.S.O.1990,c. D.17,as amended,and the Officer has been notified; p) The harvest of trees by the owner of the woodlands for his or her own use,providing that such harvest has not reduced the number of trees per hectare below the minimum number of trees per hectare required to constitute woodlands as defined by this By-Law. 3.1 Exceptions to Exemptions (a) The exemptions provided for in sections 3(m)and 3(q)above do not apply to lands identified in Schedule"L"hereto and for which the harvest, destruction,or injury of a tree or trees upon such lands requires that a Slope Permit be obtained pursuant to section 5.1 below. 4. Council Exemption (Woodlands Clearing) a) In order to be considered for an exemption to the prohibition contained in Section 2 hereunder,the owner of the woodlands must apply to the Council for an exemption at least forty(40)days prior to the anticipated commencement of harvest,injury or destruction of trees by submitting: i) a completed application form as set forth in Schedule"B"; ii) if demanded by the Clerk in respect of woodlands having an area greater than one(1)hectare,an environmental impact study;and iii) the applicable fee as set out in Schedule"G"hereto. b) At least twenty-one(21)days prior to consideration of the application for an exemption,the Officer shall send,by regular mail,written notice in the form of Schedule"D"to the applicant and all assessed owners of each parcel of land abutting the applicant's woodlands for which an exemption is being sought and to such other persons and agencies as prescribed by Council. c) The Officer shall erect and display a public notice regarding the exemption application at the entrance to the woodlands in a position that insures that it is clear and visible to all persons,which notice shall be in the form set forth in Schedule"E"hereto. d) The notice shall be posted at least twenty-one(21)days prior to consideration of the application by either the Clerk or Council. e) In respect of applications for exemptions for woodlands having an area of less than one(1) hectare,where there have been no objections filed with the Council or Clerk and/or the Officer agrees that the general purpose and intent of this By-Law is maintained,the Clerk may grant the permit for an exemption in the form set forth as Schedule"C"hereto;provided that, in respect of applications for exemptions for woodlands having an area equal to or greater than one(1)hectare,the said application shall be considered by Council. f) When granting an exemption,the Clerk may include terms or conditions desirable for the appropriate development or use of the land on which the -10- exemption is sought and in keeping with and maintaining the purpose and intent of this By-Law. - g) Where the application for exemption relates to a woodlands having an area greater than one(1)hectare or where there have been objections filed with the Clerk or where the Clerk refuses to grant a permit for exemption,or where the applicant objects to the terms and conditions on the permit for exemption as established by the Clerk,the Council will consider or re-consider, as the case may be,the application for exemption or any conditions to the permit and thereafter make a decision as to the granting of the exemption and a permit in relation thereto. h) When granting an exemption,the Council may include terms and conditions to its permission which are desirable for the appropriate development or use of the land on which the exemption is sought and as consistent with and maintaining the general purpose and intent of this By- Law. i) Council shall hear any person who wishes to speak to the application for an exemption for which objections have been filed. Upon the conclusion of the Council hearing during which the application for the exemption is being considered,the Council may make its decision regarding the granting of a decision or defer such decision to a subsequent date,in which latter circumstances,the Council shall advise the persons in attendance of the date,time,and location when Council will make a final determination in respect of such-application. j) When denying an exemption, Council must notify the applicant of the denial of such application,the date of denial of such application,and the reasons for such denial,which notification must be delivered within ten days of the date of such denial. k) For purposes set forth above,the applicant may object to the terms and conditions attached to any permit for exemption issued pursuant to this By-Law. 5. Notification/Application (Permission by Notice of Intent) a) Every owner of woodlands or person acting on behalf of the owner who intends to harvest,destroy, or injure trees personally or through another person under Section 2(a) (i)or Section 2(a) (ii)of this By-Law shall complete and submit to the Clerk an application to harvest,destroy,or injure trees as prescribed in Schedule"F"hereto not less than thirty(30) days prior to the commencement of such harvest,destruction, or injury_ b) A fee will not be chargeable in respect of an Application contemplated under Section 5(a)above. c) Any person who has submitted an application to harvest,destroy,or injure trees in accordance with Subsection 5 above shall also erect and display a sign in the form as outlined in Schedule°K"hereto at the entrance at the adjoining roadway to the lands where the harvest, destruction,or injury of trees is to occur,which signs to be clear and visible to all persons, erected prior to the commencement of such operations and remain erected in such place until five(5)days after the completion of such operations. d) Any person who has submitted an application to harvest, destroy,or injure trees pursuant to Subsection 5(a)above shall notify the Officer at least twenty-four(24)hours prior to the start of such harvest, destruction, or injury of trees. e) For purposes of this Section,the application to harvest, destroy, or injure trees may be delivered to the Clerk by First Class Mail,hand delivery,or n A W V V i X 0 Z W a. a. Q -3- • have been assessed and identified for removal to prevent disease or insects from spreading to other trees; • are cut in accordance with Provincial Silvicultural Guidelines as referred to in the Forest Operations and Silviculture'Manual and its revisions prepared under the authority of the Crown Forest Sustainability Act,S.O.1994, c.25;and/or • are marked and cut as part of a Woodlands Management Plan by way of a prescription approved by a Registered Professional Forester or Associate Member in good standing. u) "Destroy"or"destruct"means any action,which causes or results in irreversible injury or death of a tree; v) "Harvest"means the destruction of a tree through cutting or other mechanized means which results in the irreversible death of a tree by design; w) "Local Board"means a municipal service board,transportation commission,board of health,police services board, planning board,or any other board, commission, committee, body or local authority established or exercising any power under any Act with respect to the affairs and purposes of one or more municipalities; x) "Log"means a portion of a tree of a prescribed species reduced to a size suitable for loading on a vehicle for transport to a processing mill for the production of lumber or other products; y) "Logger"means an individual or company or similar group who cuts trees for purchase,sale, or other profit on behalf of a landowner; z) "Member Municipalities"includes the lower,tier municipalities within the County of Elgin, namely: Municipality of Bayham,Municipality of Central Elgin, Municipality of Dutton-Dunwich,Municipality of West Elgin,Town of Aylmer,Township of Malahide,and Township of Southwold; aa) "Municipality"means a geographic area whose inhabitants are incorporated within the County of Elgin; bb) "Officer"means an individual or individuals appointed by Council of the Corporation of the County of Elgin for the administration and enforcement of this By-Law, including but not limited to the Elgin County Tree Commissioner; cc) "Owner"means a person having any right,title,interest or equity in land; dd) "Own Use"means a use that does not include a sale, exchange or other disposition of trees destroyed or injured; ee) "Permit"means the written authorization as provided for and contemplated by this By-Law; fF) "Person"means any individual, corporation,partnership,association,firm trust,or other entity and includes anyone acting on behalf or under the authority of such entity; gg) "Plantation"is Woodlands where trees have been planted or seeded in a predetermined pattern; hh) "Plot"means a carefully measured area laid out for experimentation, which may be permanent or temporary; ii) "Point of Measurement"means that point on the tree trunk measured above the highest point of the ground in an undisturbed state at the base of the stem or trunk of the tree where the ground meets the stump. For , . • , ., ... • ',A)'s . . ,.. • . . , • • 1 . . , . . . • • . . . . . E c) co , ..... * ../... . •. . . . . .k. ., . . , IP"' ,•,. . .-...„-,.,• . , . • , • - .... , ,__••••.. . ,,,,:z....;,-.. ."1:;.4• • . , • ,..i--' .: ..---.,-,,--•••.• ...„,-,,,,,,,.z-:,---,,,,,,•- , _........._ ..... .. ...._.......... .,,,,„ 4.411(‘ • ,--'.'-- '",-.--,—..- - , . , ' -,.„:..„.„,,,...... . • , '4 . . . , . • . ,/ . . . ., . . • ....- . . • 'ell!.'-•- .--•'1'"•--..--ri . v,.•!•i- ...' ' ,.., . ... \,,,,,, ••"..t. - wit.••;,, . . • !, ,,,,,,,, . . '144 ,,,,*.":1: ••,:.„-."-'-"--"---.--, 44)°': .:',,4.N.,'.."=, 4 ' 4 ,S. s . " "'-'* "4•.. ,...,..45,41. :'' -J•••-: i".,.•'.S- ,..-,S",7-.-...-s-SsS.'4, 0 s „:....., „: '44.„*" ''''';'";. "/*...-1 , '':'ic-"'"•,..,.•:-S,.,•,;,41-','.!k --S34-,:i."4.41,1 ...-. " ".,-.....','--• . s, ....e. .....As., ''''..•s...% '''''•••••••.-.„:1:1S.,T-i".'finis. ... 1.':•-%".--.. s••s ,.... . • ..;''''.."'' "'- ' *4's :';'. 1,.',4„400 ' * . . . , •. •• (4'''' •---. .., ,-..• ,., , .„,. ' - '''''''''"' -` i..,41:,' •- --,.:',....-, , ,-. . ,, ,,,• -..- ,',i..',..•11,X.,,... ,..e,,-.,A,S,*.s.., 1 --...,,,. -.• , - •, igrf,"'".112.. ‹'!'-,10•;•,:y Or . . . It , ., —- •• , . ,...,.. - •- . . .v. .:..e..... ,..,..,. ;,... . 4, ..:.,...;:,,.:,_,"-, •'•„„",...,. •-,-2..5t...,.,,,.„..„,..............„...„..,.• ...,„l.... ft.:..„.4.. 0.,.....*.•• :“•,..,. ,• , , .,..... I , Court File No. 343/19 ONTARIO SUPERIOR COURT OF JUSTICE • BETWEEN: LOU NIRTA and CLAYTON JAMES MORLEY Plaintiffs/ Defendants by Counterclaim and HICKORY GROVES CAMPERS ASSOCIATION Defendant/ Plaintiff by Counterclaim • • PLEADINGS BRIEF FRAUTS LAWYERS 585 Talbot Street London, ON N6A 2T2 Anne Marie Frauts LSO#24497F Tel: (519) 679-4000 Fax: (519) 679-7700 Lawyers for the Defendant. INDEX 1. Statement of Claim issued February 14,2019 1 - 8 2. Notice of Intent to Defend, dated March 22,2019 9- 10 3. Statement of Defence and Counterclaim, dated May 30,2019 11 - 18 4. Reply&Defence to Counterclaim, dated June 17, 2019 19 -24 I . . • . 40 P°4if,> Court File No. 3 if 3 1y ' �` ONTARIO . ti17, ' SUPERIOR COURT OF JUSTICE - r o;EN : �o��SJt�ERi�v�� LOU NIRTA and CLAYTON JAMES MORLEY i Plaintiffs -and - HICKORY GROVES CAMPERS ASSOCIATION Defendant STATEMENT OF CLAIM TO THE DEFENDANT A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff. The claim made against you is set out in the following pages. IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a statement of defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the plaintiffs lawyer or, where the plaintiff does not have a lawyer, serve it on the plaintiff, and file it, with proof of service, in this court • office, WITHIN TWENTY DAYS after this statement of claim is served on you, if you are served in Ontario. If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your statement of defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days. Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your statement of defence. IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE. -2/411 - a0 yri(a.o I�' Date tr — Issued by u Liu c.caaittrar— ENDEla Address of 80-Dundas Street court office London, Ontario TO: Hickory Grove Campers Association 21527 Gray Line RR 2, Rodney ON NOL 2C0 CLAIM 1. The Plaintiffs claims, as against the Defendant: (a) A declaration that the Plaintiffs have good and valid right of way over the lands owned by the Plaintiffs as described in a deed dated July 14, 1942 and registered as Instrument Number AL26105 in the Land Registry Office in the County of Elgin (hereinafter described as the "subject lands"). (b) General Damages in the amount of$100,000.00 for loss of use and quiet enjoyment of"subject lands"; (c) an Order in the nature of mandamus directing the Defendant to remove any and all encroachments on the Plaintiffs' "subject lands"; (d) In the alternative, an injunction restraining the Defendant from opposing the removal of any and all encroachments by the Defendant and/or it's lessors, of obstructions over the Plaintiffs' "subject lands". (e) Special Damages in the amount of$200,000.00 for removal of any and all obstructions on the "subject lands"and the right of way; -3- (f) Pre judgement interest calculated pursuant to the Courts of Justice Act, R.S.O. 1990 c. C-43; (g) Post judgement interest calculated pursuant to the Courts of Justice Act, • R.S.O. 1990, c. C-43; (h) Costs to the Plaintiffs to be paid on a substantial indemnity basis. (i) Such further and other relief as this Honourable Court may permit. THE PARTIES. 2. The Plaintiffs are individuals who at all material times are the owners of Part Lot 4, Concession 14, more particularly described as Part 2, Plan 11R-5480 formerly in the Township of Aldborough now in the Municipality of West Elgin (hereinafter referred to as the "subject lands"). The Plaintiff, Lou Nirta owns 90% of the subject lands and the co-Plaintiff Clayton James Morley owns an undivided .10% interest 3. Directly to the West of the "subject lands" owned by the Plaintiffs is a parcel of land, used as a trailer park,which is owned by the Defendant.Those lands are located at Lot 3 Concession 14 formerly in the Township of Aldborough, now in the Municipality of West Elgin. THE FACTS 4. The"subject lands"were acquired by the Plaintiff, Lou Nirta on July 3, 2007. He sold an undivided 10% interest in the subject lands to the co-Plaintiff on December 3, 2007. The subject lands have a frontage on Lake Erie of approximately 584 metres and a depth of between 143.8 metres (west limit)to 97 metres (east limit). 5. At the time of purchase, the subject lands were vacant. The entire parcel has been calculated to have an area of 7.8 hectares (19.3 acres). 6. The subject lands were created in 1923 prior to there being any municipal and/or provincial approval.The said lands do not have frontage on a public road.Accordingly, 2019-06-17 10:43 Philip B. Morrissey 519 679 7771 >> 519 679 7700 P 5/7 -4- ��- 19. Further, the Plaintiffs states and the fact is, the tenants at Hickory Grove asked the Plaintiffs numerous times if they'had permission to enter and occasionally occupy the disputed lands. The Defendant (and the tenants) use of the Plaintiffs' property was at all times with the Plaintiffs' permission. 20. . The Defendant's acts of maintaining the lawns amongst other things are insufficient to show an animus possidendi. They do not interfere with the Plaintiffs' intended use of their property. The Defendant's use of the claimed property was, at best, equivocal. 21. The Defendant cannot acquire the Plaintiffs property though trivial acts of trespass, such as gardening, piling wood, or mowing the lawn etc. 22. The Plaintiffs state, and the fact Is, the third requirement, namely effective exclusion of the true owner for the 10-year statutory period-remains a requirement to establish adverse possession. 23. Non-use by the true owner is insufficient to end that owner's possession. The true owner, has no obligation to prove that they have not been dispossessed. The onus of proving effective exclusion falls on the adverse possessor,the Defendant. 24. The evaluation of effective exclusion or ouster is based on the conduct of the owner of the land, the true owner. The smallest use of the owner is sufficient to demonstrate that there was no effective exclusion. To establish effective exclusion, the Defendant needs to prove that there was no use of the land by the true owners. The Plaintiffs put the Defendant to the strict proof thereof. 25. Therefore, for the reasons stated above, the Defendant can not prove that they effectively excluded the true owner from the property at any time. They certainly cannot prove they did so for the statutory period. 28. The Plaintiffs state and the fact Is, all three of the legal requirements of adverse possession must be met by a party who seeks to deprive the rightful owner of,his title. The Defendant cannot meet these requirements. The Defendant's claim 2019-06-17 10:43 Philip B. Morrissey 519 679 7771 >> 519 679 7700 P 6/7 -5 - aS for adverse possession has no basis in fact or law and therefore on this basis claim for adverse possession must fail. 27. There are no statutory requirements that state that this Action must be brought in Elgin County. According to rule 13.1,01 (2) of the Rules of Civil Procedure,the proceeding may be commenced at any court office in any county named in the originating process. • 28. The Plaintiff requests the Honourable Court to dismiss the counterclaim with costs on a substantial indemnity basis to the Plaintiffs. June 17, 2019 Philip B. Morrissey(LSO#192770) 'she Wadhwa (LSO#65391J) Sara A. Nirta (LSO 741710) 3-307 Commissioners Road W • London, ON N6J 1Y4 Tel: 519.679.7770 Fax: 519.679.7771 Lawyer for the Plaintiffs/Defendants by Counterclaim TO: Frauts Lawyers Anne Marie Frauts (LSO#424497F) Adrien P. Cameron (LSO#40050V) 585 Talbot Street London, ON N6A2T2 Tel: 519.679.4000 Fax: 519.679.7700 • Lawyer for the Defendant/Plaintiff by Counterclaim N Nirta et al d Hickory Groves Campers Association Court File No. 343119 Plaintiffs an Defendant ONTARIO SUPERIOR COURT OF JUSTICE Proceeding commenced at London co A REPLY&DEFENCE TO COUNTERCLAIM Philip B. Morrissey(LSO#19277Q) Isha Wadhwa (LSO#65391J) Sara A.Niirta(LSO 741710) "0 3-307 Commissioners Road W 1' London,ON N6J 1Y4 IJI Tel:519.679.7770 Fax:519_679.7771 NO Lawyer for the Plaint slDelendants by Counterclaim o 0 - -4- access to the subject lands was established and registered on title in 1942 by virtue of . a right of way. The legal description of the deed of July 14, 1942 reads as follows: "All and Singular that certain parcel or tract of land and premises situate,lying and being in the Township of Aldborough, in the County of Elgin being composed of part of Lot Number Four in the Fourteenth Concession containing by admeasurement 19.84 acres more or less and more • particularly described as follows: -Commencing at a point in the westerly boundary of said lot distant 1672 feet 6 inches from a northwesterly angle thereof, thence north 47 degrees 8' minutes east 1943 feet to a point in the easterly boundary 1700 feet from the northeasterly angle of same,thence southerly along the easterly boundary to the water's edge of Lake Erie, thence westerly and following the said water's edge to the westerly boundary of said lot,thence northerly along the westerly boundary to the place of beginning,together with a road of ingress and egress over a strip of land 33 feet in width joining the westerly boundary of said lot extending from the. road allowance of the northerly boundary Of the said lot to the above described parcel of land." 7. Essentially the right of way provides the Plaintiff with legal access to the subject lands from Gray Line along the westerly limit of Lot 4, Concession 14.This right of way is 33 feet (10 metres)wide by 758.3 feet (231 metres) and is clearly shown on a Plan of Survey completed by Archibald, Gray and McKay Ltd. in 2010. The Plaintiff craves leave of this Honourable Court to file and rely on the said survey at Trial. 8. Shortly after purchasing the said lands the Plaintiffs retained the services of Archibald, Gray and McKay Ltd. to survey the "subject lands". The survey revealed significant encroachments of hydro meters,various sheds, shelters and gazebos onto • the lands now owned by the Plaintiffs. 9. Subsequently,the Plaintiffs purchased the right of way plus an additional 20 feet from Lakeview Aldborough Bluffs Inc., the owner of part of Lot 4, Concession 14, so that the Plaintiff would own in fee simple a parcel of land running from Gray Line to the "subject'lands"which would be 53 feet wide and 758.3 feet long. The additional 20' of land added to the original right of way was to allow the Plaintiffs, the Plaintiffs family, and emergency vehicles such as fire, police, and ambulance ingress and egress to the. "subject property". 5 - 10. The Plaintiffs proposed to build a seasonal cottage on the"subject lands". 11. At the time of purchase, the subject lands were designated "Lakeshore Recreation" under the Official Plan for the Municipality of West Elgin. Further, the subject lands were zoned "Agricultural Al"under the relevant Comprehensive Zoning By law. 12. The Plaintiffs applied to the Municipality of West Elgin to amend the Zoning By- Law in order to change the zoning from Agricultural (A1) Zone to a site specific Lakeshore Residential Zone in order to permit a seasonal dwelling. 13. By resolution dated November 25, 2010, the Municipality refused to grant the- - application of the Plaintiffs to amend the zoning by-law. 14. The Plaintiffs appealed to the Ontario Municipal Board and a hearing was held at the municipal offices on Monday, June 27 and Tuesday, June 28, 2011. 15. On August 9, 2011,the Ontario Municipal Board issued its decision granting the Plaintiffs appeal and directing the Municipality to draft a Site Specific By-Law to allow the Plaintiff a seasonal dwelling on the subject lands provided inter alia: "a) that legal and physical access to the Lakefront parcel exists from Gray Line over the ROW or the Hickory Grove lands for persons and vehicles, including emergency vehicles;" 16. The aforesaid right of way(ROW)which was established on title in 1942 is now overgrown with trees and vegetation. 17. The Plaintiffs state and the fact is that the Defendant-and/or its predecessors in title, is a trailer park and a number of lessees in the Defendant's trailer park lease land from the Defendant for an undetermined period of time. This land abuts up to and against the lands over which the right of way runs from Gray Line to the"subject lands". Unfortunately, a number of hydro meters, various sheds, shelters and gazebos and related structures associated with the Defendant encroach upon the right of way and "subject lands". As a result, the encroachments interfere with the Plaintiffs ability to -6- • have free, uninterrupted,unimpeded access over the right of way to the"subject lands". In particular, the encroachments are such as to impede the ingress and egress of emergency vehicles and others to the"subject lands 18. The Plaintiffs by letter, wrote to the previous owners of the trailer park and demanded that the encroachments on the right of way by residents of the trailer park be removed. Hickory Groves investment Inc. refused and/or neglected to comply with the demand to remove the aforesaid encroachments, but they did reroute the hydro so as to comply with this demand in part. 19. The Plaintiffs state and the fact is that this neglect and/or refusal to remove the encroachments over the said right of way has interfered with.the Plaintiffs' ability to utilize the right of way, to get utilities to the property, to build, use and occupy the seasonal residence and to have quiet enjoyment of the property, all of which has caused the Plaintiffs damages. 20. Furthermore,at some point in time the so-called tenants/owners of the individual lots will have to be added as party Defendants because their rights are being affected by this action. In spite of efforts to obtain names and addresses it appears that information will not be available until discoveries or a motion be brought to this Honourable Court to compel the Defendant to advise. 21. The Plaintiffs states and the fact is the cost of removing the obstructions over the right of way is estimated at$200,000.00, all of which costs are the responsibility of the Defendant. The Plaintiffs proposes that this action be tried at the City of London, Province of Ontario. DATE January 31, 2019 Philip Morrissey, Professional Corporation Lawyers Philip B. Morrissey(LSUC#19277Q) isha Wadhwa (LSUC#65391J) -7- Sara A. Nirta (LSUC#741710) 3-307 Commissioners Road West London, ON N6J 1Y3 Tel: 519.679.7770 Fax: 519.679.7771 Lawyers for the Plaintiffs NIRTA et aI HICKORY GROVES CAMPERS Court File No: Plaintiffs and ASSOCIATION Defendant ONTAR/O SUPERIOR COURT OF JUSTICE Proceeding commenced at London STATEMENT OF CLAIM • Philip Morrissey, Professional Corporation Lawyers Philip B. Morrissey(LSUC#1 9277Q) Isha Wadhwa (LSUC#65391J) Sara A. Nirta (LSUC#741710) 3-307 Commissioners Road West London, ON N6J 1Y3 Tel: 519.679.7770 Fax: 519.679.7771 Lawyers for the Plaintiff f Court File No. 343/19 -- ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: LOU NIRTA and CLAYTON JAMES MORLEY Plaintiffs and HICKORY GROVES CAMPERS ASSOCIATION Defendants NOTICE OF INTENT TO DEFEND The Defendant,Hickory Groves Campers Association,intends to defend this action. Date: March 22,2019 FRAUTS LAWYERS 585 Talbot Street London, ON N6A 2T2 Anne Marie Frauts LSO#24497F Tel: (519) 679-4000 Fax: (519) 679-7700 Lawyers for the Defendant. TO: PHILIP MORRISSEY PROFESSIONAL CORPORATION Lawyers 3-307 Commissioners Road West London,ON N6J 1Y3 Philip B.Morrissey LSO#19277Q Tel: (519) 679-7770 Fax: (519) 679-7771 Lawyers for the Plaintiff. TON JAMES MORLEY and HICKORY GROVES CAMPERS ASSOCIATION Plaintiffs Defendant Court File No. 343/19 ONTARIO SUPERIOR COURT OF JUSTICE PROCEEDING COMMENCED AT LONDON,ONTARIO NOTICE OF INTENT TO DEFEND FRAUTS LAWYERS 585 Talbot Street London, ON N6A 2T2 Anne Marie Fruits LSO#24497F Tel: (519) 679-4000 Fax: (519) 679-7700 Solicitors for the Defendant. I Court File No: 343/19 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: LOU NIRTA and CLAYTON JAMES MORLEY Plaintiffs/ Defendants by Counterclaim -and- HICKORY GROVES CAMPERS ASSOCIATION Defendant/ Plaintiff by Counterclaim STATEMENT OF DEFENCE AND COUNTERCLAIM 1. The Defendant admits the allegations contained in paragraphs 3 (with the exception of the alleged ownership of the "subject lands"), 10, 11, 12, 13, 14, 15, 17 (as far as the presence of trailers,outbuildings,hydro meters and the like)of the Statement of Claim. 2. The Defendant denies the allegations contained in paragraphs 2, 4, 5, 6, 7, 8, 9, 10, 16, 17 (as far as the alleged encroachments), 19, 20 and 21 of the Statement of Claim, unless hereinafter expressly admitted and puts the Plaintiff to the strict proof thereof. 3. The Defendant has no knowledge in respect of the allegations contained in paragraph 18 of the Statement of Claim. 2 4. The Defendants states that its actual and proper name is Hickory Grove Campers Association. The Association's Property 5. The Hickory Grove Family Campground ("the Campground") officially opened on May 24, 1979. The property was purchased by George Barclay. On March 4, 1988, under Power of Sale the property was sold by Royal Bank of Canada to Noron Investments. Noron Investment sold the property to Hickory Grove Investments Inc. on November 27, 2000. On June 27, 2017, the Defendant purchased and holds title to the property on which the Campground is situated. 6. The Campground is more or less comprised of an area of 73.63 acres. As of 2019, it has 263 tenants, who occupy the Campground seasonally. The full legal description of the Defendant's Property is: Lot 3, Concession 14,formerly in the Township of Aldborough, now in the Municipality of West Elgin, County of Elgin The Plaintiffs' Property 7. On July 3, 2007,the Plaintiff, Lou Nirta("Nina"),purchased the waterfront property that is adjacent to the Association's Property. On December 3, 2007,Nina sold an undivided i5 3 10 per cent interest in the waterfront property to the co-Plaintiff, Clayton James Morley ("Morley"). Nirta built a seasonal residence on this waterfront property. The full legal description of the Plaintiffs' property is: Part Lot 4, Concession 14, more particularly described as Part 2,Plan 11R-5840, formerly in the Township of Aldborough, now in the Municipality of West Elgin, County of Elgin. The Plaintiffs' property is more or less comprised of an area of 19.3 acres. 8. On March 28, 2018, Nirta and Morley purchased a parcel of land, situated northeast of the Defendant's property, and Lot 4, Concession 14, running approximately 1673 feet from Gray Line, from Lakeview Aldborough Bluffs Inc. as tenants in common with Nirta receiving a 90 per cent interest and Morley receiving a 10 per cent interest. The full legal description of this property is: Part Lot 4, Concession 14, more particularly described as Part 1, Plan 11R-5840, and Part 1, Plan 11R-10300, formerly in the Township of Aldborough, now in the Municipality of West Elgin, County of Elgin. Prior to the Plaintiffs taking title to this property, it formed part of a parcel of land used for farming by a farm operation. The Disputed Property 9. Since as early as May 24, 1979, the Defendant, or its predecessor(s) in title,have always believed that it owned a portion of the Plaintiff's Property, this portion of the adjacent property being defined as Part 1, Plan 11R-5840, formerly in the Township of 4 Aldborough, now in the Municipality of West Elgin, County of Elgin, and referred to herein as the Disputed Property. 10. The Disputed Property is more or less comprised of an area of 1.27 acres. 11. Since as early May 24, 1979 until the present, a period of over 40 years, or approximately 22 years before conversion into the Land Titles system, the Defendant, or its predecessor(s) in title, have had open, notorious, constant, continuous, peaceful and exclusive position of the Disputed Property. The Defendant, and in particular the tenants of the affected lots, have used the Disputed Property as their own and have excluded all others from it for the entire period of time. 12. The Defendant, or its predecessor(s) in title, and in particular the tenants of the affected lots, have used the Disputed Property, erecting trailers, outbuildings, maintaining the lawn, amongst other things. 13. The Defendant states that it has acquired a right to the Disputed Property by operation of adverse possession. 14. The Defendant therefore respectfully requests that the Plaintiffs' action be dismissed with costs,plus HST, on a scale to be determined. /5 5 15. The Defendant pleads that the proper place for the hearing of the trial of this action is St. Thomas. COUNTERCLAIM 16. The Defendant and Plaintiff by Counterclaim claims: a) a declaration that the Defendant is the owner of the Disputed Property; • b) a vesting order, whereby the Land Registrar is directed to enter the Defendant as owner of the Disputed Property in fee simple,free and clear of all encumbrances; c) an interlocutory injunction preserving the status quo, whereby the Defendant continues to have peaceful possession of the Disputed Property until the determination of the action and counterclaim; d) an order that a certificate of pending litigation be issued with respect to the Disputed Property; e) its costs of the action and of this counterclaim on scaled to be determined; and, f) such further and other relief as this Honourable Court deems appropriate. 17. The Defendant repeats and relies on the allegations contained in the Statement of Defence, above. 18. The Defendant pleads that it is entitled to a vesting order by operation of adverse possession, as described above. 14 6 19. The Defendant pleads that it is in the balance of convenience that it continue to have peaceful possession of the Disputed Property until the determination of the claim and the counterclaim. 20. The Defendant further pleads that there is an interest in land in question in the within proceeding. 21. The Defendant pleads and relies on the Land Titles Act,R.S.O. 1990, c. L.5,as amended, section 51(2), the Real Property Limitations Act, R.S.O. 1990, c. L.15, as amended, section 4, and the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, sections 100, 101 and 103. 22. The Defendant and Plaintiff by Counterclaim proposes that this counterclaim be tried at St. Thomas. Date: May 30,2019 FRAUTS LAWYERS 585 Talbot Street London,Ontario,N6A 2T2 Anne Marie Frauts LSO No. 24497F Adrien P. Cameron LSO No.40050V • Tel: (519) 679-4000 Fax: (519) 679-7700 Lawyers for the Defendant/ Plaintiff by Counterclaim. l 7 TO: PHILIP MORRISSEY,PROFESSIONAL CORPORATION Lawyers 3-207 Commissioners Road West London, Ontario,N6J 1Y3 Philip B.Morrissey LSO No. 19277Q Isha Wadhwa LSO No. 65391J Sara A.Nirta LSO No. 741710 Tel: (519) 679-7770 Fax: (519) 679-7771 Lawyers for the Plaintiffs/Defendants by Counterclaim. LOU NIRTA and CLAYTON JAMES MORLEY and HICKORY GROVES CAMPERS ASSOCIATION Plaintiffs/Defendants by Coutnerclaim Defendant/Plaintiff by Counterclaim Court File No. 343/19 ONTARIO SUPERIOR COURT OF JUSTICE PROCEEDING COMMENCED AT LONDON,ONTARIO STATEMENT OF DEFENCE AND COUNTERCLAIM FRAUTS LAWYERS 585 Talbot Street London, ON N6A 2T2 Anne Marie Frauts LSO#24497F Adrien P. Cameron LSO#40050V Tel: (519) 679-4000 Fax: (519) 679-7700 Solicitors for the Defendant/ Plaintiff by Counterclaim. 2019-06-17 10:43 Philip B. Morrissey 519 679 7771 >> 519 679 7700 p 2/7 tq Court File No. 343/19 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN : LOU NIRTA and CLAYTON JAMES MORLEY Plaintiffs - -and - HICKORY GROVES CAMPERS ASSOCIATION Defendant • REPLY&DEFENCE TO COUNTERCLAIM • 1. The Plaintiffs admit the allegations contained in paragraphs 7 and 8 of the Statement of Defence and Counterclaim. 2. The Plaintiffs accept the allegations contained in paragraphs 1,2, and 3 of the Statement of Defence and Counterclaim. 3. The Plaintiffs have no knowledge of the allegations contained in paragraphs 4,5, and 6 of the Statement of Defence and Counterclaim. 4. The Plaintiffs denies the allegations contained in paragraphs 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20 21, of the Statement of Defence and Counterclaim and put the Defendant to the strict proof thereof. 5. The Plaintiffs repeat and rely on the allegations of fact as set out in the Statement of Claim. 6. The Plaintiffs' property was converted to Land Titles Qualified November 20, 2006 as PIN 35104-0171. --, 2019-06-17 10:43 Philip B. Morrissey 519 679 7771 >> 519 679 7700 p 3/7 -2 - � 7. In any event , the Defendant did not make use of the disputed property during the statutory period. The disputed property was divided up into "lots" and was leased to tenants during the statutory period, none of whom had actual or exclusive possession throughout the entire statutory period, 8. In or about 2007, the Plaintiff, Lou Nirta, met with the tenants and the Association. He also wrote a letter indicating that they were trespassing on the Plaintiffs' land and made It clear to the tenants and the Association that they were to remove anything that was on the Plaintiffs' property as they were the true owners of the said lands. In the meantime, the Plaintiffs' continued to use and enjoy their property as they saw fit. The Plaintiffs walked the property, drove their ATVs, and intended to build a road on the property. Consistently, and without interruption, the Plaintiffs used their properly as they saw fit. The Defendant cannot establish an intention to exclude the Plaintiffs. 9. Further, there are no records that any building permits were issued by the Municipality for any of the existing trailers and/or structures on the disputed property. Any and all structures were intended to be trailers which were seasonal in nature. 10. The Plaintiffs state and the fact is that a successful claim for adverse possession is based on the establishment of three elements over the entire statutory period. The foundation of these three elements is exclusion of the legal owner from his property. 11. The Plaintiffs further state and the fact is, to establish adverse possession, a claimant to possessory title throughout a ten-year period pursuant to s. 4 of the Real Property Limitations Act, R.S.O. 1090, c.i. 15, must establish that he or she: (a) Had actual possession of the property in issue; (b) Had the intention of excluding the true owner from possession of his property; and (c) Effectively excluded the true owner from possession of his property. 2019-06-17 10:43 Philip B. Morrissey 519 679 7771 >> 519 679 7700 P 4/7 12. A person claiming possession of a property must have de facto possession: physical control or the ability to exclude others from the intended use of the property. 13. The Defendant has never built fences, barriers or anything of permanence. The Defendant at no time posted "No Trespassing" signs, hire guard dogs or security guards to exclude the true owners from the disputed property. 14. In the meantime, the Plaintiffs' continued to use and enjoy their property as they saw fit. The Plaintiffs state and the fact is, they walked the property, drove their ATVs, and intended to build a road on the property. The Defendant cannot establish an intention to exclude the true owners, The Plaintiffs continue to use the property whenever they choose, throughout the year, each time interrupting the Defendant's use of the said property. 15. To establish a possessory title, the claimant must prove the intention to exclude the true owner (the Plaintiffs) from such uses as the owner intends to make of his property: This intention to exclude the true owner will be evidenced by acts which effectively exclude the true owner's possession. Only such acts evidence the necessary animus possldendl against the true owner. Equivocal, seasonal, intermittent, and temporary use by the claimant is insufficient. 16. The Defendant's limited use of the disputed property (including the tenants) was not continuous during the statutory period. There were gaps In time where Hickory Grove was closed. The Defendant is a seasonal campground open from May to October and is closed for the late fall to early Spring (off season). Neither the Defendant nor the tenants made any use of the true owners property during this off season. 17. The Plaintiffs state, and the fact is, a claimant's use must be so apparent, and so obvious, so as to constitute an open, notorious, and exclusive use. • 18, The lack of any attempts to erect a fence are indicative of the Defendant's lack of intention to exclude the true owners. The lack of anything permanent shows a lack of intention to exclude the true oners from the property.