Peat moss business wins appeal over town

Stouffville Sun-Tribune | by Sandra Bolan, quoting Al Burton | December 17, 2015

Posted December 17, 2015

Is it a peat moss extraction/triple mix business or a waste disposal/transfer site?

For two years, the Town of Whitchurch-Stouffville and resident Paul Bolender have been having this argument in court.

Bolender contends his business on Hwy. 48, just north of Vandorf Road – Bolender Excavating and Garden Supplies – is a peat moss extraction/triple mix site. The town believes it is an illegal waste disposal/transfer site.

Bolender, 89, was somewhat victorious recently when the Ontario Court of Appeal ruled the initial lower court judgement, which was in favour of the town, was wrong and ordered the matter to trial.

The municipality also had to pay Bolender $20,000 for legal fees. However, because Bolender had money owing to the town, he received only a portion of the settlement, according to Marc Pourvahidi, CAO for the Town of Whitchurch-Stouffville.

“It certainly and should be considered a success. I don’t want to say it’s a victory for the little guy,” Bolender’s lawyer Al Burton of the Toronto law firm Thomson, Rogers told The Sun-Tribune.

The original judge ruled the Hwy. 48 business was a waste disposal site and against the municipal zoning bylaw.

However, Bolender’s appeal was successful because the evidence before the lower court judge could have been interpreted either way, according to Burton.

The original case was made with affidavits; there were no live witnesses. However, the lower court judge needed live witnesses and cross-examinations in order to render the decision he made, according to Burton.

Burton did not represent Bolender in the lower court proceedings.

The decision as to where to go next is up to the town.

“Yes, we are contemplating pursuing it,” Pourvahidi said earlier this year.

“We’ve had discussions and an action plan is pending,” he said, but because it is a legal matter, the CAO would not provide details.

Contacted yesterday, he said he could not comment.

“I certainly think it’s unfortunate taxpayer dollars are being used battling a 40-year-old business,” Burton said. “Litigation may not end in their favour.”

“I just don’t view it as an appropriate use of taxpayer dollars. There are other ways they could resolve this matter, if they would just come to their senses,” he said.

The business has been operating while the court proceedings have been going on.

“It’s certainly cast a pall over this business. To be blunt, it’s severely impacted the business,” Burton said.

The issue of whether it was a peat moss extraction/triple mix site or waste disposal/transfer site came to the town’s attention via complaints of a composting odour, trucks attending and dumping materials, as well as the discharge of effluent from Hydrovac trucks, according to the written court of appeal decision.

Municipal bylaw officers attended the site and concluded there was no evidence of a triple mix business, according to the written decision.

There is no timetable for when this matter will go to trial.

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Al Burton, Toronto Municipal Lawyer with Thomson, Rogers   For more information on this case, please contact Al Burton at 416-868-3113.

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