EMBREE, N.L. – A justice of the Supreme Court of Newfoundland and Labrador has ruled that while a contractor for the municipality was permitted to enter a property in Embree for the purposes of removing waste, the company was not allowed to demolish a structure on it at the same time.
“I find, therefore, that the town’s entry for the demolition and removal of the smaller building was direct and (albeit mistaken), it must be characterized as negligent,” Justice Gillian D. Butler wrote in a decision released June 8 after a hearing held in St. John’s in April.
The case concerns Nelson Janes, a 70-year-old lifelong resident of Embree, who filed a statement of claim for unlawful entry/trespass against the town council of Embree in July 2015. Don Bennett and former deputy mayor (now Mayor) Harold Nippard were also named as defendants, as were Dennis Fudge Contracting Ltd. and Robert Fudge.
The matter goes back to 2013, when the municipality instructed a contractor to enter the site at 120 Main Rd, Embree, after three years and several unanswered letters’ worth of requests that Janes clean up the property and either remove or repair the two structures on it.
Janes started Embree Fisheries Inc. with the intention of becoming a lobster wholesaler about 26 years ago, according to court documents, and was granted a 50-year lease by the provincial Crown in 1996 for 18,000 square metres (1.8 hectares) of land “covered by water,” for the sole purpose of lobster holding pens. Sometime between 2000 and 2002, business ebbed and Janes began using the site, where he built what Butler said might best be described as a quay, for the storage of various machines, trailers, a boat and a cube van, among other things.
The town wrote to Janes asking him to tidy the property and fix or remove the buildings three times between March 2010 and June 2011. Based on a council decision on April 10, 2013, a notice was issued, and Janes removed three cars from the site, but nothing more.
The notice, however, did not advise Janes of his right to appeal the decision.
On July 19 of the same year, the municipality instructed a contractor to go to the site with the intention of clearing it of buildings and other debris. The contractor declined to tackle the bigger building because it was still wired for electricity, but did demolish the smaller wooden structure.
Butler’s decision described an altercation between the contractor and Janes, who tossed a letter from his lawyer into the bucket of an excavator.
“It is unclear whether the activities on the site came to a halt on July 19, 2013 because of direction from the RCMP or whether the exercise of pure common sense by one of the participants suggested that perhaps the demolition should stop while the matter was sorted out,” she wrote.
“In either case, it is clear that the work stopped as a direct result of the lawyer’s letter.”
Much of Janes’ case rests on the validity of the original notice from the town, which did not include information about the right to appeal. Butler’s reading of the Municipalities Act shows that although the town had a right to go onto the site for the purpose of removing machinery and debris, this right did not extend to the demolition of the smaller structure.
She also found that had Janes been advised of his right to appeal in April 2013, he would have hired a lawyer earlier and likely would have been able to make an appeal before the work began.
Butler wrote that although the assessment of damages would be scheduled for another day, the town is entitled to recoup the portion of the costs incurred on July 19, 2013 for the removal of the debris (not the smaller structure) from Janes. The total is about $4,800.
Harold Nippard was contacted for comment on behalf of the town, but he declined, saying it would not be prudent at this time.
The Pilot contacted Janes, but was unable to speak with him before deadline.