N. Nicola-Howorth

Following a trial concerning allegations of negligence by municipal officials relating to the requirement of a building permit for a deck constructed at a multi-unit residential property, the plaintiffs were unsuccessful.

The plaintiffs had originally advanced a claim for malicious prosecution but abandoned it shortly before trial, while continuing to seek aggravated and punitive damages based on allegations of improper and dishonest conduct by municipal officials.

The defendant municipality sought substantial indemnity costs, arguing that the plaintiffs pursued speculative and serious allegations without evidentiary foundation and forced extensive preparation, including for claims later withdrawn.

The court found the plaintiffs advanced excessive and unfounded allegations and had rejected several settlement offers from the defendant.

Substantial indemnity costs were therefore justified, though the court reduced the quantum sought and fixed costs at $70,000 inclusive of HST.

The plaintiffs brought a negligence action against a municipality alleging that building officials negligently provided incorrect advice about whether a building permit was required for construction of a residential deck.

After acting on the advice, the plaintiffs were later ordered to obtain a permit and faced enforcement proceedings under the Ontario Building Code Act.

Although a later Divisional Court decision determined that a permit was ultimately unnecessary, the trial court held that the municipal officials had acted reasonably in responding to a brief verbal inquiry and in subsequently enforcing the Building Code after receiving a complaint.

Applying the Anns/Kamloops framework and authorities including Ingles v. Tukaluk Construction Ltd., the court found the officials met the applicable standard of care in administering the Building Code and municipal policy.

The court also held that the claimed damages, including legal costs from prior proceedings and alleged lost income, were not recoverable in this negligence action.

The claim was dismissed.