Blurred Lines – Issues of Compliance

John Mascarin

OBOA 2013 Annual Meeting & Training Sessions

“Building Diversity”

October 9, 2013

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Last Year in the Courts

• A fraud under the law

• Order compliance dates

• Contempt of court order and tenant evictions

• Building negligence & damages

• Monster homes – permit revocation & damages

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Matwijow v Pelham (Town)

• Applicant appealed refusal of a building permit to build on “her” land

• Family of applicant had, repeatedly, schemed to fraudulently divide the family farm into several lots and avoid provisions of the Planning Act

• Scheme involved creating deeds to various portions and making transfers to various family members, but the created deeds were never legally transferred by the mother before she died

• CBO must approve compliant applications - CBO allowed the application on grounds that it appeared to comply with applicable law

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Matwijow v Pelham (Town)

• At the time of the application, BCA defined “other applicable law” as any act or regulation thereunder which prohibits the proposed construction unless the act or regulation is complied with

• Consequently, the Planning Act was applicable law

• Transactions which are fraud against the Planning Act are invalid and an “insult to an Act of Parliament”

• Building permit application, as it related to the “deed” of the land, constituted “fruit from a poisoned tree”

• Court cannot condone act by granting building permit

5

Georgian Bluffs (Town) v. Chiaramonte

• Defendant had a failing septic system on his property

• Order issued requiring the owner to “pump tank, investigate and correct failed bed” requiring compliance on the same day

• No action was taken by defendant to correct the bed

• Order to Remedy Unsafe Building was issued 9 months later to defendant with one-week compliance period

• Municipality did not comply with service requirements under section 15.10 of the BCA

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Georgian Bluffs (Town) v. Chiaramonte

• Engineering report indicated that remedial work would not be able to be completed by the compliance date, even if started on the day the order was issued

• Defendant unable to comply with the orders within the time constraints; Municipality unreasonably failing to provide engineering report in a timely manner

• Failure of the municipality to abide by service provisions of BCA prevented the court from being able to exercise amending or rescinding powers under s. 15.10(8)

• Court “suggested” the parties agree on a new reasonable timetable

7

Mississauga (City) v Ulman

• Municipality issued order for defendant to remove un-plated vehicles from his property to comply with by-law

• Defendant claimed that on the day of compliance, the vehicles had been removed, but a property standards officer observed the vehicles on the property on subsequent dates

• “Compliance date” is just a date provided for the benefit of the defendant to delay further action by the municipality in enforcing its by-law

• Complying for merely the date specified by the order does not automatically require the municipality to issue a new order for non-compliance in the near future

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Ontario (City) v. Carter

• On December 9, 2009, a by-law officer observed that the Defendant did not have a waste enclosure in place

• On February 9, 2010, a compliance order was issued to the Defendant to comply with the by-law requiring a waste enclosure

• On December 7, 2010, the by-law officer attended the property and noted that the defendant was still not in compliance

• A charge was laid on April 7, 2011

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Ontario (City) v. Carter

• Defendant claimed that the limitation period of one year, specified by s. 36(8) of the BCA, commenced on March 9, 2010, the compliance date of the order, and therefore expired by the date of the charge

• Charge was for non-compliance of the order, as provided for in s. 36(1)(b)

• Limitation period commenced on December 7, 2010, the first point in time at which the municipality knew of the defendant’s continuing non-compliance with the order

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Norfolk (County) v. 1313567 Ontario Inc.

• Building on respondent’s property (with commercial and residential tenants) had been constructed without proper permits

• Previous litigation had resulted in a court order for the respondent to evict commercial tenants and to not rent out any apartments

• Respondent failed to comply with the order, and also began more construction without obtaining permits

• An additional endorsement was issued for the respondent to comply

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Norfolk (County) v. 1313567 Ontario Inc.

• Respondent took 10 months to obtain permits, but had not evicted tenants

• Municipality appointed by the Court as a receiver of the respondent due to concern for the health and safety of the tenants

• Drastic and unusual remedy, but the circumstances of contempt made it an appropriate response

• As receiver, the municipality was granted authority to do what was necessary to bring about the evictions of the tenants and carry out duties under the order and other statutory obligations

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Upchurch v. Oshawa (City)

• Resident seeking to build a new deck in front yard attends at building department for advice and information does not disclose full facts

• Resident relies on advice provided by building department at front counter

• Inspection undertaken and order to comply issued prior to completion of construction

• Building official conducted himself in a reasonable manner and provided accurate information based on information received from resident

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Upchurch v. Oshawa (City)

• Municipality’s duty of care included information provided at counter and continue to on-site inspection

• Building officials not negligent and acted correctly in issuing orders following investigation and complaints

• Test – reasonable objective standard of care

• Glass J:

“Sometimes a person can be crafty like a fox and manipulate circumstances to their own ends. That is what happened here.”

14

Elbasiouni v. Brampton (City)

“Brampton’s monster-home madness”

The Globe and Mail

“Owner of monster home and City of Brampton have 30 days to find a solution”

The Toronto Star

“Brampton orders monster home torn down”

Mississauga News

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Elbasiouni v. Brampton (City)

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Elbasiouni v. Brampton (City)

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Elbasiouni v. Brampton (City)

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Elbasiouni v. Brampton (City)

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Elbasiouni v. Brampton (City)

• Self-represented applicant (incorrectly referred to as the “appellant” in the judgment) 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 (which was different from by-law upon which the original two permits were issued)

• All building permits were revoked

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Elbasiouni v. Brampton (City)

• Applicant appealed under s. 25 and also sought damages against city

• Application was dismissed

• In considering compliance with applicable law, CBO must consider the correct by-law to apply

• CBO made the proper decision in this case

• Decision to revoke permits was also correct but, under the specific circumstances, the applicant ought to have been given an opportunity to rectify any deficiencies or violations prior to their revocation

• Revocation was unfair and unreasonable

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Elbasiouni v. Brampton (City)

• CBO relied on applicant’s demolition (as ordered by CBO) to support loss lawful non-conforming use status

• Proper remedy was a temporary stay of the stop work order in order to allow the applicant to attempt to rectify any by-law non-compliance issues

• No authorization to award damages under an appeal brought pursuant to s. 25 of the BCA

• A request for damages required a separate action

• Grossly unfair & unreasonable to award costs against the applicant notwithstanding that CBO and city were primarily successful on application

John MascarinPartnerT 416.863.7721F 416.863.1515E jmascarin@airdberlis.com

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