LITTLE CURRENT—The ongoing battle between Buddy’s Liquidation owner Aaron Toy and the Northeast Town over Mr. Toy’s alleged breach of the town’s sign and billboard bylaw was elevated to the justice system in Provincial Offences court last Thursday, though Justice of the Peace (JP) Darlene Hayden is waiting to deliver her verdict until the next scheduled Little Current court date on Thursday, November 21.
Mr. Toy, who pleaded ‘not guilty’ at his first appearance in June, was represented last Thursday by his father Dave Toy, while the Northeast Town was represented by Mindemoya attorney Brad Allison, a former Manitoulin District Crown Attorney.
Throughout the trial, Mr. Toy senior attempted to prove that his son was not guilty of breaching the town’s sign and billboard bylaw as it was his contention that the rules concerning town signs are unclear. Additionally, Mr. Toy claimed that his son Aaron had not physically placed the sign against the nearby stop sign, an issue in the town’s concern. Mr. Allison consistently stood by the claim that the only fact that mattered in the trial was that Aaron Toy knowingly, after receiving several warnings and a copy of the bylaw, breached the bylaw by placing or allowing his business sign to be positioned on municipal property.
On Monday, June 3, Aaron Toy received a Provincial Offences Act summons for breaching bylaw 2009-17, “being a bylaw to regulate the erection of signs, billboards and other advertising devices within the corporation limits of the Northeast Town;” and section 2, “No sign, billboard or other advertising device shall be erected or installed on the untravelled portion of highways or on any other lands owned by the corporation unless a permit has been issued by the manager of public works.”
The summons specifically states that the offence committed was to “cause or permit a sign to be placed on municipal property, to wit Robinson Street, Little Current, Ontario.”
Through previous interviews with Aaron Toy, Dave Toy and Mr. Williamson, The Expositor learned that the summons was issued after several warnings from the town regarding the location of the Buddy’s sidewalk sign, which was placed on town property and against the stop sign at the corner of Robinson and Worthington Streets, adjacent to his store.
The summons led to a social media campaign challenging the town’s decision and claiming that the town was “harassing” the Toys and singling out their business.
The first witness to take the stand last Thursday was Northeast Town chief building inspector and bylaw officer Tom Spry.
Mr. Spry explained that on May 21, 2013 he went to Buddy’s Liquidation at the corner of Robinson and Worthington Streets, responding to a complaint made about the business sign.
“When I arrived, there was a sign for the business leaning against the stop sign post,” explained Mr. Spry.
“How close was the sign to municipal property?” questioned Mr. Allison.
“It was on municipal property,” responded Mr. Spry.
“Did this violate the town’s sign bylaw?” asked Mr. Allison, to which Mr. Spry responded “yes.”
Mr. Allison questioned Mr. Spry about the action he took when he found the sign leaning against the stop sign, to which Mr. Spry responded that he had spoken with an employee of the business, informing him that the sign was in violation of the town’s sign bylaw and that it needed to be removed.
“On the 22nd of May I returned to the store and the sign was there again, in the same location (leaning against the stop sign),” Mr. Spry explained when questioned by Mr. Allison as to what occurred on May 22. “I removed the sign and put it in the town vehicle and took it to the roads crew shop.”
Mr. Spry went on to explain that he returned the sign to Aaron Toy on May 23 and informed him that a two foot by three foot sandwich board sign advertising his business would be allowed if it was against his building, but that it could not be placed against the stop sign or on municipal property, other than one or two feet in front of or adjacent to his building.
“He said he wasn’t spending money on a new sign,” Mr. Spry said when asked how the conversation was left.
Mr. Allison submitted two photos to the court: exhibit 1 was a photo of the sign in question leaning against the stop sign and exhibit 2 was a closer shot of the sign’s location.
After identifying the two photos that he had taken of the sign breaching the bylaw, Mr. Spry explained that he returned to Buddy’s Liquidation on May 28 to find the sign once again leaning against the stop sign at Robinson and Worthington Streets.
“Why had you not charged Mr. (Aaron) Toy with breaching the bylaw yet?” questioned Mr. Allison.
“I was hoping to gain compliance without having to charge him,” Mr. Spry responded.
On May 29, after the sign was found again at the stop sign, Mr. Spry told the court how he removed the sign and put it in the back of his truck.
“Mr. (Aaron) Toy came out of the store and removed the sign from the truck,” described Mr. Spry. “He said ‘you can fine me, but you can’t take my sign.’ On May 31 I went to Gore Bay and charged Mr. Toy with violating the sign bylaw.”
Mr. (Dave) Toy began his cross-examination asking why Mr. Spry asked a cashier to remove the sign at the time of the first incident (May 21) instead of discussing the issue with the store’s owner.
“That first day you came into the store did you know the cashier (Jared Nardi) wasn’t the owner of the store?” Mr. Toy questioned Mr. Spry.
“I believe so,” responded Mr. Spry.
Mr. Toy questioned why, if Mr. Spry knew that Mr. Nardi wasn’t the owner, did he speak with him, to which Mr. Spry responded that Mr. Nardi had simply been present and so he had asked him to remove the sign.
“Are there other signs on town property?” continued Mr. (Dave) Toy.
“Yes,” said Mr. Spry, to which Mr. (Dave) Toy inquired what made the sign in question different. “Size and location,” responded Mr. Spry.
Mr. Toy continued questioning Mr. Spry about other signs in town, leading Mr. Allison to object, stating, “the facts are confined to this signs on this property. It is irrelevant if other people have signs on town property. It doesn’t form a defense to an intentional breach of a town bylaw.”
“All we ever asked them (the town) to do is show us the rules for signs on paper,” Mr. Toy argued to the court.
“The court is in agreement with the prosecution,” responded Justice Hayden. “No other signs are relevant to this proceeding. Mr. Toy, you should confine your questioning to this situation.”
Mr. Toy continued his questioning, establishing that the copy of the town sign and billboard bylaw that Mr. Spry gave to Mr. (Aaron) Toy on one of his visits to Mr. Toy’s place of businesses was two amendments out of date.
The defense again began asking Mr. Spry about other signs, to which Mr. Allison objected and the court again directed Mr. (Dave) Toy to “keep your questions specific to the sign in question.”
“Does the town have any rules about signs?” continued Mr. (Dave) Toy in questioning Mr. Spry. “I kept asking, ‘what are the rules? Can we have a copy of the rules on paper?’ So there are no rules?”
“There is a bylaw regarding signs,” responded Mr. Spry.
“Where does it say what size a sign can be? What are the rules for it being on a sidewalk? What are the rules for signs? Can you tell me anything else?” questioned Mr. (Dave) Toy to which Mr. Spry responded “no.”
Mr. Allison once again approached Mr. Spry, asking that Mr. Spry be shown exhibits 1 and 2 and exhibit 3, the Northeast Town sign and billboard bylaw.
“Please look at exhibits 1 and 2,” Mr. Allison directed Mr. Spry. “Now exhibit 3. Does the sign pictured in the photos conflict with the bylaw?”
“Yes,” responded Mr. Spry.
After the questioning of Mr. Spry was complete, the defense called town CAO Dave Williamson to the stand.
“Do you know the difference between a resolution and a motion?” Mr. (Dave) Toy asked Mr. Williamson.
Mr. Allison objected to the question, stating that Mr. Williamson was only to be on the stand as an expert to town bylaws.
“This is a fishing expedition for Mr. Toy to make a political statement and this is a waste of the court’s time,” Mr. Allison said, once again adding that the only key point in the trial was that Mr. (Aaron) Toy breached a town bylaw.
Mr. Toy told the court that his line of questioning was necessary in “asserting that Dave (Williamson) was behind us being charged,” a claim that Mr. (Dave) Toy had previously put forward during his social media campaign during the summer when Mr. (Aaron) Toy first received his charge.
Justice Hayden said that she would permit Mr. (Dave) Toy some leeway in questioning Mr. Williamson about the bylaw.
“Yes, I know the difference,” responded Mr. Williamson.
“Did you have anything to do with—didn’t you send Tom down to my store? Tom told me that you sent him,” stated Mr. (Dave) Toy, to which Mr. Allison objected on the grounds that there was no evidence of Mr. Spry having made that statement.
Mr. Williamson told the defense that he had not sent Mr. Spry to Buddy’s Liquidation. Upon further questioning, Mr. Williamson told the court that Mr. Spry had informed him of the situation with the sign.
The defense asked Mr. Williamson about the written rules regarding signs, with Mr. Williamson referring to the bylaw as his response, in addition to the town’s policy on downtown sandwich boards as stated in a 2004 resolution from council.
Mr. (Dave) Toy referenced the resolution passed by the Northeast Town council in 2004, asking about the beginning of the resolution which states, “The council and the corporation of the Town of Northeastern Manitoulin and the Islands requests staff to prepare a sign management plan which would permit the placement of sandwich board signs on municipal sidewalks and lands under municipal jurisdiction.”
“Was a management plan put forward?” questioned the defense.
“No, but these rules were put forward,” answered Mr. Williamson, referring to the rest of the resolution which states, “1) Sandwich board signs shall be four feet high and two feet wide, with an extended base width of two feet; 2) A business owner may place no more than one sandwich board sign in such a position that it encroaches onto the municipal sidewalk, provided that it is securely affixed to the building and is removed each day at the close of business.”
“Is that legal?” asked Mr. (Dave) Toy.
“Yes, it is,” responded Mr. Williamson. “The resolution laid out a policy that was followed since 2004.”
The defense questioned why, if Mr. (Aaron) Toy’s sign was within the size requirements, he was charged?
“If the sign was leaning again a stop sign, then it would not have mattered what size it was,” responded Mr. Williamson.
Though the defense and prosecution argued two different dates, it was also established that Mr. (Aaron) Toy and Mr. Williamson had a conversation regarding the bylaw and policies for signage in the municipality, in which Mr. Williamson claimed Mr. (Aaron) Toy told Mr. Williamson he would not conform to the bylaw and policies in place.
Mr. Allison approached the witness, asking that Mr. Williamson be shown exhibits 1, 2, followed by exhibit 4, a copy of the 2004 resolution, and asked Mr. Williamson, “if the policy laid out in the resolution was to be applied to the photos, would it comply?”
“No,” responded Mr. Williamson.
The next witness the defense called was Mr. (Aaron) Toy himself. His father questioned whether he had ever received the written rules regarding signs from Mr. Spry.
“In different forms,” responded Mr. (Aaron) Toy.
Throughout his questioning, Mr. (Aaron) Toy said that on the first day Mr. Spry had visited his store regarding the placement of the businesses sign, the sign had been placed on the sidewalk in front of the store, not against the stop sign as Mr. Spry testified.
“Tom came and said that it (the sign) had to get off the sidewalk, so I took the sign and moved it off the sidewalk, free standing by the stop sign,” Mr. (Aaron) Toy said. “It was the safest place I could think of—free of pedestrians and traffic.”
The defense also pointed out, through questioning, that the same sign had been placed at the Buddy’s Fries chip truck on municipal property, across from the town office last year, with no complaints.
Mr. (Dave) Toy began once again to question other signs in Little Current, with the prosecution again objecting and the court siding with the prosecution.
The defense also submitted further photos of the sign in question, which the prosecution repeatedly objected to until all writing around the photos (printed on computer paper with notes handwritten around the photos) were removed.
During Mr. (Aaron) Toy’s cross-examination by the prosecution, Mr. Allison attempted to prove that the defendant could not have known where the sign was on May 21, as he was not present at the time it was removed. He also claimed that after the Buddy’s Liquidation employee removed the sign and informed the defendant of the situation, he made no attempt to resolve the issue and simply placed the sign back outside in a different location.
Mr. (Aaron) Toy told the court that after receiving a copy of the town sign bylaw and speaking with Mr. Williamson he did not place the sign back out, but his father (Dave Toy), who manages Buddy’s Fries, did so.
“I told him not to, but I couldn’t stop him,” said the defendant, who also argued that he had been given an outdated version of the bylaw.
“The truth is, in any version of the bylaw, all versions of the bylaw, you violated it,” said Mr. Allison.
“If the rules had been given to me, like I asked, I would have complied,” said Mr. (Aaron) Toy. “The town being bad at its job should be a burden on me?” he asked rhetorically.
During the defence’s questioning of Mr. (Aaron) Toy, the defendant once again repeated that he couldn’t have stopped his father from putting out the sign, to which the prosecution referenced the charge that stated “did commit the offence of cause or permit a sign to be placed on municipal property.”
The defense also called Councillor Michael Erskine to the stand, attempting to establish that he, as the Business Improvement Area (BIA) representative from council, had told Mr. (Aaron) Toy that his sign would be permitted outside of his business.
“Do you remember me asking you about the rules for sandwich board signs at a BIA meeting?” asked Mr. (Dave) Toy.
“I remember telling you that I was uncertain,” responded Councillor Erskine.
Mr. Erskine said that to the best of his recollection, Aaron and Dave Toy did inquire generally about the rules for downtown sandwich board signs, to which he responded that the downtown businesses could have a small sandwich board sign, kept close to their buildings.
“When I said I didn’t see the problem with you having a sign like anyone else’s, I did point out that your sign was different in size and location and suggested that you talk to the town to find out the specifics,” added Councillor Erskine.
After Mr. Erskine’s testimony, the defense attempted to call Mayor Al MacNevin to the stand, with the prosecution objecting.
“What the mayor has to say isn’t going to have any relevance in this trial,” Mr. Allison said to the court. “The defense is suggesting that they were just trying to get the rules, but if Mr. (Aaron) Toy didn’t know about the bylaw on May 21, he has testified that he knew about it after and still kept putting (the sign out), or allowing his sign to be put out.”
The defense argued that Mayor MacNevin’s testimony was relevant because it shows that the defendant did attempt to resolve the problem and did try to get the rules.
The court allowed Mayor MacNevin to be called to the witness stand.
“Do you recall us having a problem and asking you to come to the store?” questioned Mr. (Dave) Toy.
“I recall that you discussed your sign not being appropriate and wanted to have the rules clarified,” responded Mayor MacNevin. “I said that I would try and set up a meeting with Mr. Williamson and the defendant. I spoke with Dave (Mr. Williamson) and he said he would get you the information.”
It was revealed through further questioning that the conversation took place the day before Mr. (Aaron) Toy received the charge, and that the defendant contacted Mayor MacNevin again after the charge to attempt again to set up a meeting. Mr. MacNevin, however, said he was unable to set up such a meeting as the charge had by that time been laid.
In his closing defense, Mr. Allison reiterated that it was irrelevant whether Mr. (Aaron) Toy put the sign out himself or allowed the sign to be put out, or what other businesses were allowed to do or not to do, or what version of the bylaw the defendant was given, because in all versions, the defendant breached the bylaw.
“The facts are very clear—the defendant placed a sign where he knew he was not (supposed) to,” said Mr. Allison. “He admitted he was given a bylaw prior to being charged. Mr. (Dave) Toy has entertained us for hours about the rules for sandwich board signs, but had the policy laid out in the 2004 resolution been applied to his actions, he would have breached those as well.”
“Whether he placed the sign or allowed it to be placed does not change the charge against Mr. (Aaron) Toy,” continued Mr. Allison. “It is also irrelevant that he or his father tried to set up meetings after he had been charged or what other people are doing with their signs. Mr. Spry kept returning to the store and gave the defendant a copy of the bylaw, but yet the sign kept being placed back out at the stop sign. Nothing changes the fact that this sign violated the bylaw.”
“All I can say is that Mr. Spry told us what to do, but he already said today that he didn’t know the rules,” said Mr. (Dave) Toy. “I took the sign out, and I said that I was going to keep putting it out until I got the rules on paper. Then they tried to slip this resolution (the 2004 resolution regarding sandwich board signs) in two weeks after our first appearance. I asked Mr. Spry to give us the rules in writing several times. There are other signs up and down the downtown street. We asked our BIA rep for the rules, the bylaw officer, no one could give us the rules. The point is that we want to be treated the same as everyone else on the street and we weren’t.”
After hearing the closing arguments, Justice Hayden informed the court that she would weigh both arguments and announce her decision at the next Little Current court date on Thursday, November 21 at 10 am at the Little Current Recreation Centre.
Though both parties and the public will have to wait until November to hear the court’s decision on the matter, Buddy’s did have this to say on their Facebook page following the trial.
“Yes. We purchased The Pantry. We are turning it into a discount clothing store,” states the Facebook page. “And as a bonus we get to place a green and yellow Cheap Stuff sandwich board right in the middle of downtown Little Current. This way when town hall moves to the post office, this will be the first thing they see. Not sure of the size we are allowed though, the bylaw officer didn’t know.”