“I Knew You Were Trouble” John Mascarin OBOA 2015 Annual Meeting & Training Sessions October 7, 2015

Last Year in the Courts enforcing the BCA - a delicate balance BCA enforcement and the Charter contempt of court and emergency orders whilst applicable law? a duty to revoke a building permit? site plan approval and permit issuance actual use versus last use authorized by permit jurisdiction re necessity for site plan approval

Birani Homes Ltd. v. London (City)

Birani Homes Ltd. v. London (City) Facts homeowners sued developer who built and sold them their home on basis that home’s foundation was defective CBO ordered developer to take certain steps in response, including requiring developer to take and test samples from the home’s foundation developer’s engineers were refused access to the property developer requested that the court grant its engineers access to the property so that it could comply with the CBO’s order

Birani Homes Ltd. v. London (City) Ruling court refused to order that applicant have access to property to order access to property would be contrary to the purpose of the BCA and go beyond the scope of the court’s authority under the statute “The BCA seeks to strike a delicate balance between the interests of homeowners and the limited powers of intervention conferred upon government authorities charged with protection of public interest.”

R. v. Goebel

R. v. Goebel Facts City received complaints about appellant’s property municipal by-law enforcement officers found multiple contraventions of the property standards by-law and issued an order to comply under the BCA further complaints were made, additional inspections were carried out and new orders were issued directing compliance for new as well as existing contraventions this process occurred twice

R. v. Goebel appellant was charged under the Provincial Offences Act for failing to comply with an order issued under the BCA appellant suffered from a serious mental illness appellant claimed that the BCA (as a whole) violated his right to security of the person under s. 7 of Canadian Charter of Rights and Freedoms appellant sought advanced funding to finance his proposed challenge to the BCA Issue did the appellant have a valid claim under s. 7 of Charter?

R. v. Goebel Ruling appellant denied advanced funding - his constitutional challenge was devoid of merit on two grounds: the right to security of the person does not protect a right to property there was no provision in either the BCA or the Provincial Offences Act that would allow the city to deprive the property owner of his shelter the courts will not seek to find a Charter breach under s. 7 merely because a municipality has resorted to various enforcement mechanisms under the BCA

South Bruce v. 1260964 Ontario Inc.

South Bruce v. 1260964 Ontario Inc. Facts court order required that respondent obtain a demolition permit and meet all requirements of CBO and any and all legislation and authorities with respect to the demolition contrary to a court order, the respondent took down its building without a demolition permit respondent argued that it believed that it had a demolition permit previously issued by the municipality (which had been revoked) municipality applied for an order that respondent was in contempt of court and to enforce emergency order

South Bruce v. 1260964 Ontario Inc. Ruling test for contempt of court (from Hobbs v. Hobbs): order was clear and unequivocal as to what steps the landlord needed to take: obtain a demolition permit and meet the requirements of the CBO; respondent was willfully blind (it “shut its eyes because it knew or strongly suspected that looking would fix it with knowledge”) to the fact that it needed a new demolition permit; and there was proof of this beyond a reasonable doubt when circumstances require strict compliance with a court order: willful blindness = willful disobedience

South Bruce v. 1260964 Ontario Inc. CBO determined that respondent’s building posed an immediate danger and issued an emergency order pursuant to the emergency order, the respondent was required to: obtain a demolition permit before taking down the building, carry out the required work safely, and do so within a particular timeframe

South Bruce v. 1260964 Ontario Inc. after making an emergency order, the CBO had the discretion under s. 15.10(3) to take any measures necessary to terminate the danger the court has the power to grant compensation to a municipality for completing the work required of another person subject to an emergency order the requirement to repay the municipality for the cost of complying with the order did not create a hardship in this case, the respondent had brought the costs of repair and remediation on itself by failing to take action

Ashburner v. Adjala-Tosorontio (Township)

Ashburner v. Adjala-Tosorontio (Township) Facts respondent owned a 22-acre property in a quiet, rural area respondent applied to construct a large riding arena in the front of her house to train her horses for equestrian events applicants lived across the road on a 100-acre parcel and raised beef cattle on their property CBO issued permit to allow construction of riding arena applicants appealed the issuance of the permit on the basis that the use was not permitted by the zoning by-law, as well as the official plan and the site plan agreement

Ashburner v. Adjala-Tosorontio (Township) Ruling zoning by-law did not permit any form of recreational equine use – only raising of livestock was permitted CBO was required to consider the official plan – the construction of a riding arena did not comply with the major development policy in the official plan CBO “was required to take into account the fact that the site plan agreement did not conform to the official plan; he should have found the agreement deficient and he should not have issued the permit” CBO’s decision was rescinded and the permit was revoked pursuant to s. 8(10) of the BCA

Elbasiouni v. Brampton (City)

Elbasiouni v. Brampton (City) Facts applicant obtained a building permit to construct a single family dwelling applicant subsequently obtained a second permit to allow construction of a two-unit family dwelling (based on a confirmed legal non-conforming use designation) stop work order issued to cease construction order set out that applicant was undertaking work in contravention of the applicable zoning by-law all building permits were revoked

Elbasiouni v. Brampton (City) Ruling city appealed decision in 2013 that the CBO was required to revoke the building permit on the basis that the CBO’s decision was discretionary rather than mandatory there are many different circumstances under the BCA that could give the CBO a lawful basis to revoke a building permit but most would not involve breaches of the BCA however, where the “error” is non-compliance with the BCA (as it was in this case) the CBO could not allow the construction to proceed and was, therefore, required to revoke the building permit

SheppBonn Ltd. v. Toronto (City)

SheppBonn Ltd. v. Toronto (City) (No. 1) Facts applicant sought building permit for interior renovations to allow building to be used as a 58-child day nursery building originally zoned for residential use and rezoned to permit commercial uses – building subsequently used for commercial purposes without any permit being issued the CBO refused to issue a building permit as alterations substantially increased the usability of the building which therefore constituted “development” under s. 114(7) of City of Toronto Act, 2006 Issue is increase in usability of a building to be measured against its actual use or against last use of building as authorized by a building permit?

SheppBonn Ltd. v. Toronto (City) Ruling proper interpretation of “development” suggests that effect of proposed alterations are to be measured against actual use “…the question of whether the proposed alterations to the building would result in a substantial increase in the usability of the building is to be determined by having regard to the last use of the building rather than the last use of the building that was authorized by a building permit.” “Leaving aside the questions of whether the applicant should have applied for a building permit in 2006, and whether it would have been required to obtain site plan approval at that time, it is inappropriate, absent express language, to interpret and apply the site plan provisions… in a manner which permits it to become an indirect means of enforcing the BCA.”

SheppBonn Ltd. v. Toronto (City) (No. 2) Facts respondent sought a building permit for interior renovations for permitted commercial uses and contended that site plan approval was not required CBO refused to issue a building permit on the grounds that site plan control had not been applied for or received respondent brought motion before Ontario Municipal Board for a determination of the “scope of site plan control” under s. 114(7) of City of Toronto Act, 2006 City contended that applicant’s only remedy was to appeal refusal under s. 25 of BCA

SheppBonn Ltd. v. Toronto (City) Issue does the OMB have jurisdiction to consider a CBO’s decision to issue or refuse to issue a building permit? Ruling – Ont. S.C.J. while OMB does not have jurisdiction to make a determination as to whether or not a CBO is correct in issuing or refusing to issue a permit, the OMB does have jurisdiction to make a determination as to whether site plan control applies under s. 114(7) of City of Toronto Act, 2006 or s. 41 of the Planning Act CBO’s refusal to issue building permit was appealable under s. 25 of the BCA but OMB retained concurrent jurisdiction to determine applicability of site plan control

SheppBonn Ltd. v. Toronto (City) Ruling – Ont. Div. Ct. standard of review = reasonableness - issue related to statutory interpretation; OMB to be given deference allowing the OMB to determine whether site plan control applies does not fall within the reasonable range of alternatives available in interpreting s. 114(7) of City of Toronto Act, 2006 it would undermine the “overall structure of the legislation” as well as the governance and responsibility for site plan approval OMB did not have jurisdiction to determine whether, in an overall context, site plan control applies to a given project matter should have been appealed under s. 25 of the BCA

“Red” Tour – June 15, 2013

“1989” Tour – October 3, 2015

~ fin ~ John Mascarin Partner T 416.865.7721 E jmascarin@airdberlis.com