Item - 2021.SZ23.1

The Property Standards Committee, Toronto and East York Panel:

1.  Confirmed items 2, 3 and 4 in the Order to Comply (August 3, 2021) for 55 Stephenson Avenue, Folder No. 21 191942 PRS 00 IV.

2.  Confirmed item 1 in the Order to Comply (August 3, 2021) for 55 Stephenson Avenue, Folder No. 21 191942 PRS 0 IV, and in doing so grant an extension of time to December 22, 2021.

Background

On October 25, 2021, four members of the Toronto-East York Panel of the Property Standards Committee (the “Panel”) heard an appeal from a Property Standards Order made in respect of the property at 55 Stephenson Avenue (the “Property”).  The Order listed four alleged contraventions of Toronto Municipal Code Chapter 629, Property Standards (“Property Standards Bylaw” or “Bylaw”) relating to the presence of raccoons on the Property.

After hearing all the evidence and submissions, and pursuant to Rule 12(J) of the Rules of Procedure for the Property Standards Committee (the “Rules”), the Panel deferred its decision to the next scheduled hearing date, November 22, 2021.

On November 22, 2021, three members of the Panel convened to deliberate and decide the appeal.  One Panel member who had heard the evidence and submissions on October 25 was unavailable to attend on November 22.  Her unavailability was for reasons that are unrelated to the appeal. Pursuant to 11A of the Rules, three panel members constitutes a quorum for the purposes of hearing appeals.  Further, section 4.4(1) of the Statutory Powers Procedure Act provides that if a member of a tribunal who has participated in a hearing becomes unable, for any reason, to complete the hearing or to participate in the decision, the remaining member or members may complete the hearing and give a decision.  Accordingly, the decision was made by the remaining three members of the Panel, all of whom had heard all the evidence and submissions relating to the appeal.

On November 22, the parties were advised that the Panel had voted to confirm all four items listed in the Property Standards Order.  In light of the submissions made at the appeal, the Panel advised that it would provide written reasons for decision as soon as it was able to do so.  These are those reasons.

The Property Standards Order

The Property owners have allowed raccoons to live under and around a shed in their backyard. They have in the past provided food and water for these raccoons.  They say that construction and development in the neighbourhood have disrupted the raccoons’ habitat, and that having a family of raccoons live under and around their backyard shed is better than having them nest in someone’s attic.  The Property owners gave evidence that most of their neighbours appear to enjoy the raccoons, or at least are not troubled by them.  However, one set of next-door neighbours are unhappy with the situation and made a complaint to the City.

On August 3, 2021, two Municipal Licensing and Standards Officers attended the Property to conduct an inspection.  The Property owners admitted to feeding raccoons.  The MLS Officers noted four ways in which they believed the Property Standards Bylaw had been breached and issued the Order to Comply.    At a second inspection conducted on October 15, 2021, an MLS Officer determined that three of the four items had been complied with.

The Property owners have agreed to stop feeding the raccoons, but do not wish to prevent the raccoons from living on their property by removing the burrow holes underneath the shed.  The Property owners are also concerned with the aspect of the Order requiring them to keep their property free of animal feces. 

a.  Item 1

The first item listed in the Order is the most contentious.  It states that: “The property is not being kept free of conditions which may encourage an infestation. Namely, burrow holes underneath shed.”  The Order alleges this is a contravention of Section 9 of the Property Standards Bylaw, relating to Pest Control, which requires that “All properties shall at all times be kept free of rodents, vermin, insects and other pests and from conditions which may encourage infestation by pests.”  The Order requires the Property owner to remove all conditions which attract pests and encourage an infestation.

Although the Property owners have agreed to stop feeding raccoons, they object to covering or removing the burrow holes under their shed.  This is where the raccoons have made their home, and the raccoons use these burrow holes under the shed as their den.  The Property owners had three arguments as to why the burrow holes did not breach the Property Standards Bylaw.

i.  Can the Bylaw on “Pest Control” Apply to Raccoons?

First, the Property owners claimed that section 9 of the Bylaw only applies to “rodents, vermin, insects and other pests.”  Their counsel relied on the doctrine Expressio Unius Est Exclusio Alterius, which is a principle of statutory interpretation meaning that when one or more items of a class or group are specifically mentioned, all other items of that class or group are intended to be excluded.  In this case, counsel argues, “rodents, vermin, insects” are specifically identified under section 9 of the Property Standards Bylaw; raccoons are neither rodents, vermin nor insects; and hence, it would be unreasonable to suggest that this provision is intended to apply to raccoons.

The Panel finds that this argument ignores the plain words: “and other pests”.  If the Panel were to interpret this section as applying only to “rodents, vermin and insects”, it would be ignoring and negating the words “and other pests.”  The Panel finds that the clear intention of section 9 is that it applies to all creatures that could be considered “pests”, including but not limited to rodents, vermin and insects. 

ii.  Are Raccoons “Pests”?

Having found that the Bylaw regarding Pest Control is not limited to “rodents, vermin and insects,” the Panel considered whether the evidence established that the raccoons in this appeal were “pests”.  As the term “pests” is not specifically defined, the Panel relied on the context of the Pest Control section of the Bylaw (which is concerned with preventing infestations from creatures such as rodents, vermin and insects that are known to be a common nuisance and a potential health and safety risk) and the evidence from the hearing.

The MLS Officer who testified at the hearing explained that the City considers raccoons to be “pests” because, among other things, they are wildlife that can pose a risk to humans either directly (through biting or other contact) or through their feces (which can carry and transmit disease).  Residents are advised by the City to not feed raccoons, to not leave food out for raccoons, and to avoid approaching raccoons.  She referred to City websites and other sources of information she had relied upon in concluding that the raccoons living on the Property were “pests”.

Counsel for the Property owners noted that the MLS Officer had not specifically disclosed in advance the websites or other information she relied upon in concluding that raccoons were “pests”.  However, counsel offered no evidence to contradict the assertion that raccoons living in the City can pose risks to human health and safety.  Indeed, the evidence of one Property owner was that she hoped that by letting the raccoons live under her shed she would keep them out of her attic, where she did not want them living.  The evidence was clear that the raccoons use the shed not just as their den but also as their toilet, leaving large accumulations of feces on and around the shed roof.

The ordinary use of the word “pest” can range from any thing that is a mere nuisance, to something causing plague and pestilence.  In this case, the Panel finds that wildlife creatures who pose a potential risk to the safety and health of humans and/or pets can be considered “pests”.  The raccoons living on the Property are pests. 

iii.  Does the Order Violate a Provincial Statute?

The final ground of appeal with respect to Item 1 was the argument that the burrow holes cannot be removed, because their removal would conflict with Ontario’s Fish and Wildlife Conservation Act.  Subsection 8(2) applies to raccoons (among others) and reads:

A person shall not intentionally damage or destroy the den or habitual dwelling of a furbearing mammal, other than a fox or skunk, unless the person holds a licence to trap furbearing mammals.

Counsel for the Property owners argued that Item 1 of the Order requires them to damage or destroy the den or habitual dwelling of a raccoon, which would breach a provincial statute, and therefore this part of the Order is of no force or effect.

The Panel finds that the Order is enforceable.  A raccoon den or dwelling can be destroyed or damaged as long as it is done by a person holding a license to trap furbearing mammals such as raccoons.  This law presumably exists so that raccoons and other furbearing mammals can be removed from dwellings safely and humanely.  Many orders to comply issued by the Municipal Licensing and Standards Office can only be remedied with the assistance of licensed professionals.  This is no different. 

Counsel argued that if the Property owners were to hire someone licensed to trap furbearing mammals, they would be doing indirectly what they are prevented from doing directly.  The Panel rejects this argument.  Its natural conclusion is that an order to remove the dwelling of a raccoon would only be enforceable on a property that just coincidentally happened to be owned by someone with a license to trap furbearing mammals, but would be unenforceable if the property owner did not have such a license.  That would be an absurd conclusion.  The Property owners may need to hire a licensed professional to comply with Item 1 of the Order; that does not render the Order illegal or even unusual.

iv  Conclusion

The Panel finds that section 9 of the Property Standards Bylaw requires properties to be kept free of “pests” and from conditions that may encourage infestation by “pests”.  Although this section applies expressly to “rodents, vermin and insects”, it does not apply only to them.  Like rodents, vermin and insects, raccoons are wildlife that can pose health and safety hazards to humans and pets, and so they are “pests” for the purposes of this section.  The burrow holes on the Property are clearly encouraging the raccoons to live and congregate there.  The burrow holes may need to be removed by an appropriately licensed professional to ensure compliance with provincial legislation about fur-dwelling mammals, but that does not make an order for their removal unlawful, unreasonable or unenforceable. 

Item 1 is confirmed with an extension of time to December 22, 2021. 

b.  Item 2

Item 2 in the Order also alleges a contravention of the Pest Control section of the Bylaw, and alleges that: “The property is not being kept free of conditions which may encourage an infestation. Namely, torn chicken wire/wire mesh netting along the bottom of the home and underneath the rear door steps.”

The Property owners did not appeal this item.  By the date of the appeal hearing, they had complied with it to the satisfaction of the Municipal Licensing and Standards Office.

Item 2 is confirmed.

c.  Item 3

Item 3 of the Order states that: “The yards and/or other part of property is not being kept clean and free from accumulation of junk, rubbish, brush, refuse, litter, garbage and/or other debris. Namely, animal feces on the shed roof.”  The Order states this is a breach of section 10(B) of the Property Standards Bylaw, concerning Yard Maintenance.

There is no doubt that at the time of the first inspection, there was a large accumulation of raccoon feces on the shed roof.  This was admitted by the Property owner, and the Panel reviewed photographs taken at the time of the first inspection.  By the time of the second inspection, the feces had been cleared and the MLS Officer noted that the Property owner was in compliance with Item 3 of the Order.

Despite being in compliance, the Property owners want this item rescinded.  One of the Property owners gave evidence that it has been a challenge to keep the shed and surrounding area reasonably free of raccoon feces, and that their efforts to discourage the raccoons from depositing feces on the shed have been unsuccessful.  The design of the shed means that it can’t simply be hosed down; to keep it clean someone needs to climb up and physically remove the feces with their gloved hands and scrub the roof. 

Counsel questioned two staff members from the Municipal Licensing and Standards Office about how many raccoon feces could lawfully be on the shed roof.  They both testified they might find non-compliance even with a small amount of raccoon feces (such as three or four).   Counsel argued it would be impossible for the Property owners to be in regular compliance with Item 3 unless someone is perched on the shed roof constantly, ready to get rid of any animal feces as soon as they are deposited.  Because on-going compliance is effectively impossible without what they described as unreasonable measures, the Property owners asked for Item 3 to be rescinded.

The Property owners expressed fear that they could be issued more property standards orders to comply in the future, even if they are relatively diligent about clearing raccoon feces.  It could be, for example, that they clean raccoon feces off the shed every Mondays and Thursdays, but if an MLS Officer were to stop by on a Saturday and find three or four recently-deposited feces then an order to comply might be issued despite their relative diligence.  On this argument, the Panel notes as follows.

-  This Panel does not adjudicate future, hypothetical breaches of the Property Standards Bylaw.  It adjudicates those that come before us as appeals.  In this case, the Order was properly issued.  There was a large accumulation of raccoon feces on the shed roof.  Not only did this breach the section of the Bylaw regarding Yard Maintenance, but it was also a health concern.  The Property owners removed the feces and were found to be in compliance by the date of the second inspection.  The process worked as intended.

-  It is likely that if the Property owners remove all conditions which attract pests and encourage an infestation as ordered, their ongoing challenges with raccoon feces will lessen considerably.  In any event, the Property owners cannot encourage raccoons to live on their property and then disavow any responsibility for their waste.

-  Property owners are required to maintain minimum standards set out by the Bylaw, and many of these require ongoing attention.  Many of these require reasonable interpretations of “how much is too much” when assessing whether a standard has been breached.  Reasonable people might disagree on the precise number of raccoon feces needed to constitute an infraction.  This does not make the Order unreasonable in the circumstances under which it was issued.

-  As the MLS Officers testified, they operate on a complaints-based system.  They do not wander randomly into backyards looking for violations, they only respond to complaints. 

-  Finally, an order to comply is not like a parking ticket that comes with a fine.  It is a notice of infraction with no penalties or other consequences attached, as long as the order is complied with by the date indicated.  In the event that there is a complaint about the Property owners in the future, and an MLS Officer inspects the property as a result of the complaint, and the MLS Officer notes a significant accumulation of feces on the shed roof or elsewhere, the Property owners will have to clean the feces (or appeal the order).  This is not a burden so onerous and impossible that Item 3 should be rescinded. 

Item 3 is confirmed.

d.  Item 4

The fourth and final item in the Order alleged that: “The yards and/or other part of property is not being kept clean and free from accumulation of junk, rubbish, brush, refuse, litter, garbage and/or other debris. Namely, discarded animal feeding bowls and tin container underneath the rear door steps on the south west side of the home.”

There is no issue that discarded feeding bowls and a tin once apparently used as a feeding bowl were under the home at the time of the first inspection.  The Property owners did not appeal this item.  By the date of the appeal hearing, they had complied with it to the satisfaction of the Municipal Licensing and Standards Office.

Item 4 is confirmed.

The Order of the Panel

For the reasons given in this decision, three members of the Panel passed a motion on November 22, 2021 to confirm Items 1, 2, 3 and 4 in the Order.  For Item 1, the Property owners were given an additional 30 days from the date of the oral decision to comply, i.e., by December 22, 2021.

Appeal of Order to Comply (August 3, 2021) for 55 Stephenson Avenue