Monday 28 October 2013

A  failure  in  attempting  to  fool  a  government                         

Every once in a while, some fool attempts to pull one over on the government. This is the true story of one such fool. His name is Paul Bak.

In Ontario, there is a beautiful lake called, Lake Rosseau. Property on that lake and its equally affluent neighbours, Lake Muskoka and Joseph Lake start around $1 million. Cottages on their winding shores — typically luxury homes — routinely sell for between $2.5 million and $5 million. Actress Goldie Hawn has a place there. So does former Detroit Red Wing Steve Yzerman and the family of late cable baron Ted Rogers. Actor Tom Hanks, director Steven Spielberg and many Toronto Maple Leafs players are regular visitors to three lakes.

When I was five years old in 1938, I, along my mother, brother and grandparents spent a week at Lake Rosseau. In those years, residents could build boathouses on that lake but there are restrictions. For example, no part of a boathouse can extend beyond 50 feet from the high water mark. The maximum floor space of any dwelling can be no larger than 650 square feet. Further, a boat house cannot contain a dwelling. ­

Paul Bak is a developer who purchased a recreational property with shoreline frontage on Lake Rosseau. A Site Plan Agreement was entered into by Bak with the Township of Seguin and registered on or about February 15, 2011.  It was the Township’s position that the structure is a 1.5 story boathouse with living accommodations on the top floor.  Accordingly, the Township took the position that the boathouse was built contrary to the Planning Act and Township zoning by-laws.  One of the problems he was facing was that the space for the dwelling was 1,000 square feet in size. His application to build the structure was refused.

On August 11, 2008 the Respondent applied for a zoning by-law amendment as s.4.28.6 of the Township’s by-law prohibited the construction or installation of in-water shoreline structures in an Environmental Protection Zone.  In his application, Bak stated “I seek to change the boundary of the EP Zone along the shoreline to permit a future boat house.” On November 17, 2008, the Township refused the zoning amendment.  Bak then appealed to the Ontario Municipal Board but later he withdrew his appeal.  

Now anyone with any semblance of a functioning brain would continue with his appeal but this twit chose to withdraw it and simply ignore the decision given to him by the municipal authorities and build the structure anyway.

Now he knew that he had broken the law so he decided to go around the law and have the structure classed as an aerodrome in which sea planes could dock at. If he was successful in that claim, federal regulations would supersede the municipal regulations and he would then get his own way—in other words, he could have his cake and eat it.

As to be sure, the municipal authorities weren’t going to let that happen so they took him to court. The matter was heard in a Superior Court in June 2013.

Bak argued that it was his position that the said structure is in fact an aerodrome and that the construction did not contravene the provisions of the Site Plan Agreement.  Further, he submitted that based upon the application of inter-jurisdictional immunity, municipal by-laws and requirements do not apply to the construction and use of a federally registered and regulated water aerodrome. Admittedly, that is an interesting argument.

The structure he built has a 38 foot wide door and an entrance height of 9 feet, 7 inches. Despite that size, a Cessna 182 plane (one with pontoons) will not fit into the structure.  Further, a hangar will not get the protection of federal jurisdiction if it is also used as a residence or is used for storing non-
aeronautical equipment such as boats. On September 12th, 2012, an ultra-light, amateur built aircraft, C-GREZ, was pushed inside the structure.  Bak was heard to say; “No, that’s all I need right now. 

That position he took in court got about as much sympathy he would get if he raped the judge’s child. For one thing, Bak not only doesn’t own such an aircraft or any other aircraft. Further, he doesn’t even have a licence to fly any aircraft.
There was no evidence that the structure was used as a hanger or for aeronautical purposes during the summer of 2012 and up until January 2013. It was then that it was discovered to be used as a boat house with an oversized dwelling as part of the structure, contrary to municipal rules.                     
Bak rented out the accommodation in the structure to various persons in the summer of 2012.  He had six to seven tenants and the rental leases or terms did not restrict the use of the property or expand the use of the property.  He advertised the rentals as a boathouse. He later explained by saying that the average person wouldn’t understand what an aerodrome was.

Even if the federal government has erroneously classed the structure as a hanger, it could still lose its federal jurisdiction protection if the hangar was built without a municipal building permit.  And in this particular case, the hanger was built without a municipal building permit.

The court ruled that since the structure is not being used for aeronautics and is partially used as a residence, the municipality is within its jurisdiction to order that the structure be torn down.                              

In my view, Bak is not engaged in the activity of aeronautics at this time; rather, he is renting the property as residential premises to others on a commercial basis. Therefore, the doctrine of interjurisdictional immunity does not come into play, as the Township’s by-law states what the specifications of structures on the lake are to be and Bak has flouted those specifications under the guise of the structures being a hanger. For one thing, hangers do not have dwellings as part of the structures.       

The judge said in his ruling; “In my view, it is true that the Respondent (Bak) built a structure and registered a water aerodrome with Transport Canada.  But the facts of this case lead one to the inescapable conclusion that the structure was built as a boathouse, not as an aerodrome or hangar. While the structure can accommodate only a small, ultra-light plane, in every other way, as others have acknowledged on the facts, it looks like a boathouse, and at all material times it was utilized only as a boathouse on a lake.  There are simply no facts, events or circumstances on the record before me that the structure was essential or integral to aeronautics or to aviation.  At its simplest, this is because I find that the decision to register an aerodrome was an attempt by the Respondent to evade and circumvent zoning and planning by-laws.  The facts here do not demonstrate that the Respondent had any real intentions to operate an aerodrome or to use his structure for aeronautics related purposes.” unquote

Just to show you how sneaky this fool is, consider what conclusion the judge had about his tomfoolery.

“Furthermore, while an offer to purchase may have been received from a pilot, registration of the aerodrome and construction alone of the structure, in the circumstances of this case, demonstrate no real intention to operate a water aerodrome. On the facts as I have set out, I am unable to conclude with any degree of certainty or assurance that the structure as built is an integral part of a registered water aerodrome or will be an essential and integral part [of an aerodrome] in the future.”

This sneaky twit did not construct a water aerodrome for the purpose of placing a plane with pontoons inside it and as such he cannot take shelter under the doctrine of inter-jurisdictional immunity.         

He is going to appeal the court’s decision but I really think his chances of winning his appeal is not unlike a bug trying to escape the effect of RAID while it is drowning in it.

The shortest folly is always the best but if one extends the folly to the point of utter foolishness, the expense can be overwhelming.  This fool’s escapade will in the long run cost him a great deal of money. Not only will he have to pay his lawyer and the costs of the other side, he will have to pay for the demolition of his structure and on top of that, he will have lost everything he previously spent in building the illegal structure in the first place. As a businessman, he is a hopeless investor.      

The Greek philosopher said it best when he said; “It is not the last drop that empties the water clock. It is all that previously flowed out of it.”  Well, you can be sure that whatever Bak has invested in his caper, all of it is  going to flow from his water clock.  If he hadn’t acted so stupidly, he would have been able to keep every drop of it.           

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