Antonenko v. White Fox (Village) et al., (2010) 355 Sask.R. 273 (QB)

• Judge: Wilkinson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 16, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 355 Sask.R. 273 (QB);2010 SKQB 213

Antonenko v. White Fox (2010), 355 Sask.R. 273 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. JN.056

Todd Antonenko (plaintiff) v. The Village of White Fox, Murray McKee operating under the business name McKee Excavating & Trucking, and Gerald Parfitt operating under the business name of M & M Towing 1980 (defendants)

(2004 Q.B. No. 705; 2010 SKQB 213)

Indexed As: Antonenko v. White Fox (Village) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Wilkinson, J.

June 16, 2010.

Summary:

The village declared the plaintiff's premises to be unsightly and ordered him to clean up the debris and junked vehicles. When the plaintiff failed to do so within a reasonable time, the village hired two contractors to clean up the property. The plaintiff sued the village and contractors for damages for trespass and conversion.

The Saskatchewan Court of Queen's Bench dismissed the action.

Land Regulation - Topic 5017

Unsightly premises (neglected buildings) - Removal or clean-up - The plaintiff's residential property was littered with junked vehicles and other debris - After unsuccessful attempts to have the plaintiff remedy the problem, council passed an order declaring the premises to be unsightly - The plaintiff had 10 days to comply - The village waited two months before hiring two contractors to enforce the order by removing the vehicles and debris - The plaintiff sued the village and contractors for damages for trespass and conversion - He claimed that, inter alia, the village lacked authority where he appealed the orders to council and a decision was never rendered (i.e., 10 days had not begun to run) and the village breached its duty of fairness where, after not enforcing the order for two months, the village should have carried out further inspections and given additional notice before executing the cleanup - The Saskatchewan Court of Queen's Bench dismissed the action - The plaintiff's property was an unsightly premise - The village had authority to order a clean up by the plaintiff and, if he failed to do so, to have the property cleaned up by someone else at the plaintiff's expense - The village spent a year attempting to convince the plaintiff to clean up his property before making a formal order under the Urban Municipality Act - The order required a clean up within 10 days - The plaintiff promised to do so, but did not - The village waited two months to enforce the order - There was no trespass or conversion in enforcing the lawful order under the Act - In any event, s. 132(8) of the Act gave the village and its agents (contractors) immunity in relation to their reasonable acts in enforcing the order - There was no breach of procedural fairness - The Act provided the notice the plaintiff was entitled to - All notice and other procedural requirements were met - The plaintiff was not entitled to further notice before the village could enforce the order - See paragraphs 1 to 75.

Municipal Law - Topic 1710

Liability of municipalities - General and definitions - Statutory immunity - [See Land Regulation - Topic 5017 ].

Practice - Topic 7458

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Rare, exceptional or complex cases - The plaintiff's property was declared an unsightly premise - The village ordered him to clean up the property - When he failed to do so, the village hired two contractors to enforce the clean up order - The plaintiff sued the village and contractors for damages for trespass and conversion - The action was dismissed - The two contractors sought solicitor-client costs on the basis that they should never have been added as defendants, as they were merely agents for the village - The Saskatchewan Court of Queen's Bench agreed that the claims against the contractors were unnecessary and without merit - However, unnecessarily adding a party did not constitute a "rare or exceptional case" warranting solicitor-client costs - See paragraphs 76 to 78.

Cases Noticed:

Markwart v. Prince Albert (City) (2006), 289 Sask.R. 71; 382 W.A.C. 71; 2006 SKCA 122, dist. [para. 4].

Vanscoy No. 345 (Rural Municipality) v. Hickey (1995), 126 Sask.R. 118 (Q.B.), refd to. [para. 53].

Wheatley, Re, (1957), 24 W.W.R.(N.S.) 323 (B.C.S.C.), refd to. [para. 62].

Martynkiw v. Edmonton (City) (2005), 40 M.P.L.R.(4th) 23 (Alta. Q.B.), refd to. [para. 69].

Welbridge Holdings Ltd. v. Greater Winnipeg (Municipality), [1971] S.C.R. 957, refd to. [para. 70].

Enterprises Sibeca Inc. v. Frelighsburg (Municipalité), [2004] 3 S.C.R. 304; 325 N.R. 345; 2004 SCC 61, refd to. [para. 72].

Berg et al. v. Saskatchewan (Minister of Environment and Resource Management) (2004), 254 Sask.R. 177; 336 W.A.C. 177; 2004 SKCA 136, refd to. [para. 73].

Holland v. Saskatchewan et al. (2007), 299 Sask.R. 109; 408 W.A.C. 109; 2007 SKCA 18, varied [2008] 2 S.C.R. 551; 376 N.R. 316; 311 Sask.R. 197; 428 W.A.C. 197; 2008 SCC 42, refd to. [para. 73].

Siemens et al. v. Bawolin et al. (2002), 219 Sask.R. 282; 272 W.A.C. 282; 2002 SKCA 84, refd to. [para. 77].

Statutes Noticed:

Urban Municipality Act, S.S. 1983-84, c. U-11, sect. 130, sect. 132 [para. 49].

Authors and Works Noticed:

Boghosian, David G., and Davison, J. Murray, The Law of Municipal Liability in Canada (1999) (Looseleaf Update), generally [para. 59].

Rogers, Ian MacF., The Law of Canadian Municipal Corporations (2nd Ed.) (2009 Looseleaf Update), p. 439, para. 74.1 [para. 60].

Thomson Rogers on Municipal Liability (1996), para. 9.580 [para. 71].

Counsel:

P. Abrametz, for the plaintiff;

M.J. Holash, for the defendant, Village of White Fox;

M. Mahon, for the defendants, Murray McKee and Gerald Parfitt.

This action was heard before Wilkinson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment on June 16, 2010.