The Fort Smith community recreation centre in June 2021. Sarah Pruys/Cabin Radio
An NWT Supreme Court judge has upheld an order restraining a man from interfering as the Town of Fort Smith destroyed his property, even though demolition began weeks before it was legally allowed.
Armando Berton had taken the town to court to have the restraining order set aside, arguing the municipality had failed to inform the court it began demolition weeks before a legislated appeal period had expired, among other grounds.
In a written decision issued on Wednesday, Justice Karan Shaner found that while the town’s premature demolition was “obviously problematic for other reasons,” it was “immaterial” to the restraining order application and would not have changed the outcome.
The town was granted the order after the appeal period had passed, on the grounds that the partially demolished building was an “imminent danger to public health and safety.”
Shaner did, however, grant a request to remove Nerina Berton from the restraining order as there was no evidence she had interfered with the demolition.
According to the decision, the case involves a building Armando Berton bought from Parks Canada in 2001 and moved to his brother Gerindo’s property in Fort Smith in February 24, 2022, after he was ordered to remove it from commissioner’s land. The decision said Berton had not obtained the necessary permit from the town to do so, as he said he believed the court order superseded the need for one.
Berton had previously applied for and been denied permits to move the building to various properties in Fort Smith for a range of reasons, before he moved it to commissioner’s land in 2017.
The decision indicates the move in 2022 was far from seamless. The document states that Berton’s vehicle and the trailer he was towing became stuck in a ditch, blocking traffic on a public street and requiring the help of a bylaw officer and a highway patrol officer. His vehicle had “numerous mechanical problems during the journey” and “at one point, the building became entangled in power lines at a four-way stop.”
Shortly after the building was relocated, the same bylaw officer called to the scene when Berton got stuck served a notice from the town on Nerina Berton, who accepted it on Armando’s behalf, ordering that the building be moved away from its new location by March 27, 2022, otherwise it would be removed or destroyed. The town denied the Bertons’ request for more time.
Municipal staff began to demolish the building on March 28, until Berton arrived and prevented them from continuing. The court decision states photos taken that day depict a “dilapidated wooden structure on a trailer” and show a “large part” of the building was missing due to the demolition.
The territory’s Cities, Towns and Villages Act requires municipal corporations to wait for a 30-day appeal period to pass before taking action on decisions. In this case, that would have been on April 15, two weeks after the town began to destroy Berton’s property.
Fort Smith’s senior administrative officer at the time, Cynthia White, told the court she believed the town’s decision was final and she was unaware of the appeal period.
The town applied for and was granted the restraining order on April 22, arguing in part that the condition of the building – half-demolished – represented a safety risk that required immediate attention.
That order was served on the Bertons on April 26.
While the Bertons’ lawyer asked the town to delay enforcement while the matter was addressed, the town refused and completed demolition the following morning, taking the debris to the landfill.
In June 2022, the town sent an invoice to the Bertons amounting to $19,555.58 for removal of the building.
In NWT Supreme Court, the Bertons argued the town didn’t give the court some key information when it applied for the restraining order, not least the fact that “the building came to be in [its half-demolished] condition because the town had acted illegally by taking enforcement action before the appeal period expired.”
However, Justice Shaner said the town had provided an “accurate and complete chronology” to the court at the time, and any omissions did not mislead the court on the “key issues.”
Armando Berton has filed a lawsuit against the town seeking damages. The town said it would not enforce the invoice until that suit is resolved.