St. Catharines v. Al-Kadhee – Closing Order Application Unburdens Community Of Problem House

Properties that serve as hubs for criminal activity can be extremely problematic for municipalities to address. Despite police enforcement, property standards, fire code violations enforcement and landlord/tenant law, problem properties often continue to persist. Applying for injunctive relief under the provisions of the Municipal Act, 2001 is often a more effective, although infrequently-used solution.

In September 2025, Barry Cox, counsel with Boghosian + Allen LLP, was successful in bringing a court application for a Closing Order pursuant to s.447.1 Municipal Act, 2001 for a "drug house" in St. Catharines on the basis that it constituted an ongoing and deleterious effect on the surrounding community. The court's decision in this matter is reported in Corporation of the City of St. Catharines v. Al-Kadhee (2025) ONSC 6265.

The Property

5 Duke Street, located steps away from Montebello Park and downtown St. Catharines, was for many years a quiet, semi-detached residential duplex, owned by a Mr. Huda Al-Kadhee, who lived in the upstairs apartment unit, and rented out the downstairs unit to tenants. Unfortunately for the surrounding community, beginning in the late spring of 2023, however, things at 5 Duke Street took a marked turn for the worse.

It appears that the owner of the house became involved with a number of people involved with the local drug community, and by the end of 2024, what was once a well-kept semi-detached residence had deteriorated into a hub for drug-related and criminal activity. At the hearing of this application, 5 Duke Street was described as a "drug house".

The house itself, over the course of 2023 and 2024, fell increasingly into disrepair. A series of transient individuals, as many as fifteen to twenty at any one time, moved into the house. It became not uncommon for the owners of neighbouring properties to see people come to the house at all hours of the day and night, go inside for a short period of time, and leave visibly intoxicated. These people often threw drug paraphernalia, including used needles, on the street outside 5 Duke, and onto neighbours' properties. There was also a corresponding increase of criminal activity at the property, including assaults, noise complaints, and on one occasion, a knife fight that spilled out of the house onto the street outside. During 2024 alone, Niagara Police Service were called to 5 Duke Street on over fifty (50) separate occasions. On September 4, 2025, three weeks before this application was heard, Niagara Regional Police Service received and investigated an anonymous call that gunshots had been fired within the house.

In addition, the St. Catharines' Fire Department had to respond to twenty (20) calls to 5 Duke Street during 2024. Over the course of this year, there were two fires at the premises, one of which was because of a couch in the premises intentionally being set alight. A City fire inspector, while inside the house checking for smoke detectors, observed between 10 and 15 people staying there, and used needles, naloxone kits and other drug paraphernalia scattered in plain view throughout the house. One resident warned her not to drop her phone while in the basement, because of all the used needles that had been thrown down the stairs and left discarded on the basement floor. This inspector also observed that the electricity in the house had been disconnected, and that the only source of power was an extension cord which had been run across an alleyway from a neighbouring apartment unit. Residents subsequently brought a generator inside the living room to provide power for the house, due to the fire department identifying this extension cord as a fire risk. The Niagara Paramedic Service was also called to 5 Duke Street thirty (30) times in 2024. Several of these calls were for drug overdoses, at least one of which was fatal.

However, perhaps the most shocking statistic with respect to 5 Duke Street is amount of garbage that accumulated on its lot. Despite this being a small, semi-detached house, in 2024, a staggering 66.7 cubic yards of waste – enough to fill five large construction waste bins – was removed from the premises' lot by the City of St. Catharines, at an expense of $14,000 to the City. The garbage removed included broken furniture, propane tanks, used needles, and both human and animal waste.

The brunt of the activities at 5 Duke Street have been borne by the owner and occupant of 7 Duke Street. The two houses share a party wall. This occupant had to deal with used drug needles being thrown over the fence between the properties into her back yard, people from 5 Duke Street trespassing on her property while under the influence of drugs, and in late 2024, a break-in where her room-mate's valuables, including a large amount of cash, were stolen. When the occupants of 7 Duke Street¹ confronted the owner of 5 Duke Street, he acknowledged that he was aware of this break-in and that someone from 5 Duke Street was responsible. The owner of 7 Duke Street, despite subsequently spending over $3000 on a home security system, gave evidence on this application that although she was scared to live there, she was even more scared to leave, for fear of what might happen to her house while she was gone.

Application for a Closing Order

In early 2025, due to concerns raised by the local city councillor, the City of St. Catharines retained Barry Cox of Boghosian + Allen LLP to bring an application pursuant to s.447.1 Municipal Act, 2001 for a remedy known as a "Closing Order". S.447.1 permits a municipality, upon notice to the Ministry of the Attorney General, and with the assent of the local police service, to bring an application before the Superior Court of Justice for an Order closing a premises "to any use" for up to two years, if the court is satisfied that:

• activities or circumstances at the premises constitute a public nuisance;
• the public nuisance in question has a detrimental impact on the use and enjoyment of property in the vicinity, including impacts such as trespass, garbage, noise, property values, harassment and intimidation; and
• the owner of the premises knew or ought to have known of the activities in question, but has not taken adequate steps to eliminate the public nuisance.

This statutory provision was part of the 2001 amendments to the Municipal Act, and has only been used a handful of times since its enaction. In fact, other than this case, there are just five (5) reported decisions where this application has been brought. In four of the five decisions, a closing order was granted. Of the four cases where closing orders were granted, three of them were for commercial properties, and one involved an apartment building in Kenora which had become a hub of drug activity. Despite the language of s.447.1 not containing any language prohibiting the application for a closing order for a residential property, there are no prior reported decisions of a closing order being sought for a single residence. However, it is interesting to note that when discussing the enaction of s.447.1, the Ontario Minister responsible for introducing this legislation stated, as per Hansard:

The proposed new act [i.e. Municipal Act, 2001] also includes measures to give municipalities more authority to make their communities safer. It will respond to municipal requests by enhancing municipal powers to deal with crack houses...and other problem properties as public nuisances by allowing municipalities to...ask the courts to close down these problem properties.

In short, it appears as if the Ontario Legislature had premises like 5 Duke Street specifically in mind when enacting s.447.1 Municipal Act, 2001 and giving municipalities the ability to seek this remedy before the Courts.

In order to put the necessary evidence before the Courts to obtain a closing order, it was necessary for Boghosian + Allen LLP's team to obtain affidavit evidence from representatives of Niagara Regional Police Service, St. Catharines Fire Service and Niagara Paramedic Service setting out details of the over 100 first responder calls to the property in 2023 and 2024. Affidavits were obtained from St. Catharines' Manager of By-Law Enforcement concerning the various property standards bylaw infractions at the premises, and from the City's Department of Finance regarding the cost to the City of rectifying these infractions. However, the most compelling evidence came from individual members of the surrounding community. While many community members were not willing to "go on the record" as to the manner in which the activities at 5 Duke Street had affected them for fear of reprisal, six (6) owners of surrounding homes and businesses, including the owner and occupant of the 7 Duke Street, which shares a party wall with 5 Duke Street, bravely swore affidavits as to what they had seen and heard over 2023, 2024 and 2025. The fact that the closing order sought by the City was granted by the Court was, in the author's opinion, in large part due to the affidavit evidence of these community members.

The Hearing of the Application

This application was heard virtually before the Honourable Madam Justice Ohler of the St. Catharines Superior Court of Justice on September 25, 2025. The respondent owner of 5 Duke Street, Huda Al-Kadhee, did not file any responding material to the application, and did not hire a lawyer to represent him, but was present in court for the application, and made submissions to the Court. The main thrust of these submissions was that the respondent had lost control of the property for a period of time, and that at some points in time over the past eighteen months, the activities taking place at 5 Duke Street had risen to the level of a public nuisance, but that things had "quietened down" [sic] over the course of the summer of 2025, and that it was his hope, with financial assistance from his family, that he could "take his house back". He further advised the court that he had moved out of 5 Duke Street and that no-one was living there as of the date of the application (at least with his knowledge). In response to this last submission, Mr. Cox received a message during the respondent's submissions from the owner of 7 Duke Street, who was watching the motion over Zoom from her home, in which she advised him that she could hear people talking and a dog barking next door through the party wall. Mr. Cox promptly brought to the attention of Ohler J. in reply submissions.

Upon considering the evidence tendered by the City, and the Respondent's submissions, Ohler J. observed, quite correctly, that the City was seeking an extremely significant remedy, noting that the effect of her granting this closing order would be to "treat the respondent as a trespasser to his own property". With that said, she proceeded to consider whether, on the balance of probabilities, the requirements set out in s.447.1(1) Municipal Act 2001 had been met by the material before the court.

Upon considering whether, pursuant to s.447.1(1)(a), the activities or circumstances at 5 Duke Street constituted a public nuisance, Ohler J. considered the test for public nuisance set out by the Supreme Court of Canada in Ryan v. Victoria (City) ² wherein the Court defined a public nuisance as "any activity which unreasonably interferes in the public's interest in questions of health, safety, morality, comfort and convenience", and constitutes "an attack upon the rights of the public generally to live their lives unaffected by inconvenience, discomfort or other forms of interference", having regard for the following five enumerated factors:

• the inconvenience caused by the activity;
• the difficulty involved in lessening or avoiding the risk;
• the utility of the activity;
• the general practice of others; and
• the character of the neighbourhood

While Ohler J. noted that the majority of the affidavit evidence filed by the City was from March, April and May 2025 (as a result of the time between the filing of the City's application record and the hearing date, and the Respondent having successfully obtained an adjournment from the original hearing date), she noted that there was no affidavit evidence from the Respondent as to how the situation had improved. As such, considering the evidence as a whole, she concluded that the activities and circumstances of 5 Duke Street constituted a public nuisance. In this regard, Ohler J. noted the ongoing criminal activity at the premises, that discarded drug paraphernalia and garbage on or about the lot gave rise to health and safety risk, and that the comings and goings to and from a "drug house" have interfered with the rights of the surrounding community to live their lives free from discomfort and inconvenience. She also noted that due to the sheer number of first responder calls to the premises (over 100 since mid-2023), the declining condition of the property, the fire risk caused by the property, the health risk posed by the garbage on the premises, and the September 5, 2025 report of gunshots inside the property, she had "no difficulty" in finding that a public nuisance exists at 5 Duke Street.

With respect to s.447.1(1)(b), Ohler J. readily agreed that the public nuisance emanating from 5 Duke Street posed a detrimental impact on the surrounding community's use and enjoyment of their properties. She noted specifically in this regard that the discarded needles and other drug-related objects on the street and sidewalk outside the house have interfered with the use of public spaces in the vicinity, that there has been an increase of garbage, attracting vermin, that the numerous calls for emergency service have contributed to noise and traffic, and that the severely intoxicated people coming and going from the property have caused an increase in harassment and intimidation.

The last step in determining the need for a closing order, pursuant to s.447.1(1)(c), was whether the Respondent was aware of the activities taking place at the property, and had not put and end to them. In this regard, Ohler J. noted that the Respondent acknowledged the fact that in the past, the activities at 5 Duke Street constituted a public nuisance, thus meeting the requirement of knowledge. She also noted that there was no evidence before the court that these activities had been stopped, and that there was evidence before the Court of shots being fired inside the house just a few weeks before the hearing of the application. As such, Ohler J. held that she could not find as a fact that the Respondent had taken sufficient steps to put an end to the public nuisance. It bears mentioning, although not expressly referred to in Ohler J.'s decision, that there was also evidence before the court that in early 2025, the Respondent had contacted Niagara Regional Police to have the people staying at the property removed, but had subsequently resiled from this and that the issues at 5 Duke Street continued, and that the Respondent had acknowledged to the owner of 7 Duke Street in November 2024 that individuals from 5 Duke Street were responsible for the break-in described earlier in this article.

As such, Ohler J concluded that all three requirements for the issuance of a closing order were satisfied, and invited submissions as to the terms of the order to be made. As there were no legal tenants at the premises that had to be given notice to move out, and based on the Respondent's advice that he was no longer living at the house and had no personal effects there, she ordered that the closing order be made effective immediately. In terms of the duration of the order, she agreed with counsel for the City's submission that the Order had to be of sufficient duration for the individuals frequenting 5 Duke Street to understand that they are no longer welcome there, and ordered that the closing order be of a duration of one year. Other key terms of the order were that the City be authorized to take whatever steps necessary to secure the property and make it safe, and that Niagara Regional Police Service and the City's By-Law Enforcement Department were specifically empowered to physically bar entry to the premises and/or arrest anyone found present on the premises for trespassing.

The author, and the entire team at Boghosian + Allen LLP, wish to extend their sincere thanks and admiration to the members of the surrounding community who stepped forward and provided evidence in support of this application, and to the City of St. Catharines, for its trust in retaining us, and invaluable assistance in preparing for and bringing this important application.

Footnotes

1 We have omitted her name from this article to preserve her privacy, and her safety

2 [1999] SCR 201

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