one less problem without you john mascarin annual case law update oboa 2014 annual meeting &...

One Less Problem Without You

John Mascarin

Annual Case Law Update

OBOA 2014 Annual Meeting & Training Sessions

Last Year in the Courts

Case law considering the power, authority and jurisdiction of CBOs, inspectors and building departments respecting:

• fees and applicable law – regulating wind turbines

• powers of inspector – order to produce report(s)

• standard of review – appeal under s. 26 of BCA

• property standards – official plan policies

• OMB – jurisdiction re building permit issuance

• unsafe building orders – integrated properties

• prosecutions – officially induced error defence

Suncor Energy v. Plimpton-Wyoming (Town)


Facts

• Town enacted a four by-laws (purportedly under the Municipal Act, 2001) which sought to regulate the location of renewable energy projects within the municipality

• By-law No. 6 imposed three types of fees on wind turbines: (1) a general fee of $10,000 per turbine; (2) a variable fee of $100/m of total height; (3) a security deposit of $200,000 per turbine

• By-law No. 50 sought to establish a 2 km minimum distance setback from a wind turbine to a dwelling (as well as noise level limitations and indemnification requirements)

• the by-laws were challenged on a number of grounds


Issues

• could By-law No. 6 impose the general or variable fees and the requirement for a security deposit?

• could By-law No. 50 interfere with the issuance of a building permit for the proposed wind turbine development?


Ruling (Fees)

• Garson J. notes that municipalities have the power to enact by-laws on classes of building permits and applicable fees

• however, the BCA sets out several procedural requirements for imposing fees under ss. 7(2) to (8) of the BCA, including an annual report, public meeting, notice and information to the public

• municipality failed to meet conditions precedent to charge the fees; no authority under BCA for security deposit (except under conditional building permit agreements)

• portions of By-law No. 6 relating to fees for wind turbines and security deposit were ultra vires and were quashed


Ruling (Permit Issuance)

• Garson J. cites s. 8(2)(a) of the Building Code Act, 1992 and the complete definition of “applicable law” in the OBC:

“As Suncor rightfully points out, this section provides for very specific and limited situations in which a municipality can interfere with the issuance of a building permit. In Suncor’s view, [the by-law] is not an instance of one of these limited situations and as such does not fall under ‘applicable law’.

…I agree with Suncor that [the by-law] cannot be used or relied on by the Town to interfere with the issuance of a building permit for Cedar Point”.

• list of applicable law in s. 1.4.1.3 of OBC is exhaustive

Ottawa (City) v. Lauzon


Facts

• historical building fell into disrepair – City and owner agreed that the building was in an unsafe condition

• owner’s engineer recommended demolition of the building as it posed a risk to public safety

• CBO issued an order to remedy the unsafe building and also required owner to provide a peer review of engineer’s report commenting on ability to remediate the building pursuant to ss. 15.9(4) and 18(1) of the BCA

• owner retained a pre-eminent engineer with unique qualifications relating to remediation of heritage buildings but he refused to provide a copy of peer review to the City


Issue

• did City have authority to order the peer reviewer to provide his report?

Ruling

• City had reasonable grounds to believe that a peer review of the original engineer’s report had been prepared

• City had jurisdiction to order peer reviewer to produce report as it concerned information about possibility of remediating the historical building to preserve some of its heritage attributes in accordance with the Ontario Heritage Act

• peer review report was not subject to litigation privilege – it was prepared to respond to City’s order to provide the report – not for purposes of litigation or in contemplation thereof

SPRIG v. Southgate (Township)


Facts

• SPRIG appealed issuance of building permit by CBO to allow construction of a “waste processing facility” under the zoning by-law

• appeal under s. 25 of BCA was dismissed – judge held that facility was permitted as a “dry or wet industry”

• SPRIG appealed to Divisional Court under s. 26 of BCA

Issue

• what is the correct standard of review on an appeal to the Divisional Court under s. 26 of the BCA?


Ruling

• the applicable standard of review on an appeal from an order of a judge depends upon the question that the court is dealing with:

• on questions of pure law: correctness

• on questions of fact: reasonableness

• on questions of mixed fact and law: standard falls on a spectrum that is somewhere between correctness and reasonableness

Housen v. Nikolaisen, [2002] 2 S.C.R. 235


Ruling

• fundamental issue of whether or not the building permit could properly issue once the factual finding had been made that the facility was a “dry industry” = question of mixed fact and law

• the spectrum of the standard of review on this issue fell more toward reasonableness than correctness

• on that question, prior to interfering with the lower court judge’s decision there would have to be a finding of overriding or palpable error


Ruling

• determination of whether or not building was a “waste processing facility” or a “dry or wet industry” as defined in the municipality’s zoning by-law were questions of fact – no interference except in the case of a “palpable or overriding error”

• the issue of whether a waste processing facility is a permitted use in the applicable zone was a question requiring the interpretation of the zoning by-law – standard of review on that question is correctness

SheppBonn Ltd. v. Toronto (City)


Facts

• applicant sought 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 ground that site plan control had not been applied for or received

• applicant 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


Issue

• does the OMB have jurisdiction to consider a CBO’s decision to issue or refuse to issue a building permit?

Ruling

• 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

Dumoulin v. Deep River (Town)


Facts

• applicant sought to quash the property standards by-law pursuant to s. 273 of the Municipal Act, 2001

• the by-law was alleged to be ultra vires because the municipality had not adopted official plan policies prior to the enactment of property standards by-law

Standards for maintenance and occupancy15.1 (3) The council of a municipality may pass a by-law to do the following things if an official plan that includes provisions relating to property conditions is in effect in the municipality or if the council of the municipality has adopted a policy statement as mentioned in subsection (2)…


Issue

• was the property standards by-law ultra vires for not having complied with the preconditions to enactment under s. 15.1(3) of the BCA?

Ruling

• an official plan must be in place with the requisite policies before a property standards by-law many be adopted

• however, ss. 24(2) & (2.1) of the Planning Act address the circumstances and allow a by-law to be enacted provided an official plan amendment subsequently comes into effect


Planning Act

Pending amendments

24 (2) If a council or a planning board has adopted an amendment to an official plan, the council of any municipality or the planning board of any planning area to which the plan or any part of the plan applies may, before the amendment to the official plan comes into effect, pass a by-law that does not conform with the official plan but will conform with it if the amendment comes into effect.

Same(2.1) A by-law referred to in subsection (2),

(a) shall be conclusively deemed to have conformed with the official plan on and after the day the by-law was passed, if the amendment to the official plan comes into effect; and

(b) is of no force and effect, if the amendment to the official plan does not come into effect.

Hull v. Greater Napanee (Town)


Facts

• applicant’s 3-storey building shared an adjacent wall with a vacant building that had significant structural problems

• rear wall of the adjacent building partially collapsed and CBO issued unsafe building order against the adjacent owner under s. 15.9(1) of the BCA; CBO then prohibited access to both properties under s. 15.9(6) based on multiple engineering reports which indicated that the state of the adjacent building could cause both buildings to collapse

• applicant commenced a Small Claims Court action seeking injunctive relief and damages – action converted to an appeal under s. 25 of BCA (on consent of all parties)


Issues

• did CBO act appropriately when faced with the collapsed wall on the adjacent property?

• did the CBO properly issue the various unsafe building orders against the applicant’s property?

• was the Town obliged to repair the adjacent property to a degree necessary to allow the safe occupancy of the applicant’s property?

• could the judge order the Town to pay damages to the applicant?


Ruling

• no jurisdiction on an appeal under s. 25 of BCA to consider or award damages – Elbasiouni v. Brampton Chief Building Official (2013), 13 M.P.L.R. (5th) 23 (Ont. S.C.J.)

• CBO correctly determined that properties were structurally integrated (a single structure with interdependent components) and that the entire structure was unsafe

• no authority for court to require municipality to utilize its resources to rectify problems on applicant’s property

• no bad faith or malice on part of CBO in obtaining reports from engineers or in issuing unsafe orders to applicant

Mississauga (City) v. Khalid


Facts

• City investigated complaint that defendant had constructed a basement entry and stairs at the side of her dwelling without a building permit

• order to obtain permit or remove side entrance issued

• permit application subsequently submitted but denied as side entrance contravened the zoning by-law

• defendant had 2 options: apply to Committee of Adjustment or remove entrance and stairs – she did neither

• City laid charges under s. 36 of BCA and issued a summons


Issue

• did the defence of officially induced error apply?

• defendant alleged: (a) no one told her that side entrance not permitted; and (b) she was advised by city officials that the Committee of Adjustment would not grant the minor variance

Ruling

• defendant aware of permit requirement and still proceeded – she was not misinformed or induced by anyone to undertake construction – she was fully responsible

• any alleged erroneous official advice given must precede the commission of the offence for the defence of officially induced error to apply

~ fin ~

John MascarinPartnerT 416.865.7721E [email protected]

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one less problem without you john mascarin annual case law update oboa 2014 annual meeting &...

Documents

lauzonfactshistorical

building pursuant

applicable fees

building code act

classes of building

quashed suncor energy

list of applicable law

courtscase law