COURT OF APPEAL FOR ONTARIO
RE: TSUI LIN SO and DENNIS SO (Plaintiffs/Respondents) – and – WYNDHAM STREET INVESTMENTS INC., THE CORPORATION OF THE CITY OF GUELPH and BRUCE POOLE (Defendants/Appellants)
BEFORE: MOLDAVER, SHARPE JJ.A. and KILLEEN J. (Ad hoc)
COUNSEL: Andrew J. Heal for Wyndham Street Investments Inc. Tricia Sinclair for the Corporation of the City of Guelph and Bruce Poole Hayes Murphy for Tsui Lin So and Dennis So
HEARD: October 21, 2004
On appeal from the judgment of Justice Lorna-Lee Snowie of the Ontario Superior Court of Justice, dated February 13, 2003.
E N D O R S E M E N T
1The judgment under appeal provides as follows:
THIS COURT ORDERS AND ADJUDGES that the decision of the Committee of Adjustment dated March 13, 2001 is a nullity and therefore the "as built" window design is contrary to the Committee of Adjustment's original decision and the special conditions attached to the building permit.
THIS COURT FURTHER ORDERS AND ADJUDGES that the building permit issued for the construction of the windows and the inverted L-shaped cavity is contrary to the law and of no force or validity. THIS COURT FURTHER ORDERS AND ADJUDGES that the cavity or opening in the plaintiff's portion of the party wall shall be restored by the defendant, Wyndham Street Investments Inc. forthwith.
THIS COURT FURTHER ORDERS AND ADJUDGES that the defendant, Wyndham Street Investments Inc. is liable in nuisance to the plaintiffs for costs of a new roof. The defendant, Wyndham Street Investments Inc. shall pay forthwith the total costs of the new roof construction in the amount of $23,019.61 together with pre-judgment interest in accordance with the Courts of Justice Act, in the amount of $3,445.36.
THIS COURT FURTHER ORDERS AND ADJUDGES that the defendant, Wyndham Street Investments Inc. is liable for punitive damages arising from it's trespass onto the plaintiffs' property in the amount of $5,000.00 to be paid forthwith.
THIS COURT FURTHER ORDERS AND ADJUDGES that the counterclaim of the defendant, Wyndham Street Investments Inc. is dismissed.
THIS COURT FURTHER ORDERS AND ADJUDGES that the plaintiffs shall have its costs against the defendants on a partial indemnity scale, to be fixed by the trial judge.
2We see no basis to interfere with para. 1 to the extent that the March 13, 2003 decision of the Committee of Adjustments is declared a nullity. The proceedings before the Committee of Adjustment leading to the March 13, 2001 decision were plainly irregular. Before us, counsel for the city placed no reliance on this decision. As the trial judge found, the variation in plans was a major change in design, and the respondent should have been given proper notice of the Committee of Adjustment proceedings. Both Wyndham and the city's officials knew of the respondent's keen interest in the variance, yet they proceeded to obtain a decision that affected the respondent's interest without notice. The words in para. 1 following "nullity" are superfluous in view of our conclusion in para. 4 and are therefore struck.
3We accept the city's submission, however, that the defect in the proceedings before the Committee of Adjustment does not, in law, render the building permit "of no force or validity". The Committee of Adjustments deals with land use issues while the regime of building permits deals with building standards. The building permit complied with the initial decision of the Committee of Adjustments in that it required that the windows be fixed and that "openable units are not permitted" as specified by the Committee of Adjustments.
4The real issue here is whether the structure erected by Wyndham complies with the Committee of Adjustments' original decision and the building permit. As the windows open, it is clear that the structure does not comply with either. In place of the first sentence of para. 2 we substitute a declaration to that effect.
5We see no reason to interfere with the second sentence of para. 2. As explained below, we affirm the trial judge's rejection of Wyndam's adverse possession claim. It is not disputed that the wall, at least up to the second story, encroaches on the respondent's property. It follows that the respondent has a right of ownership that was violated by Wyndham when the wall was knocked out to create the disputed L-shaped alcove. As there is ample evidence to support the trial judge's finding that Wyndham behaved in a high-handed fashion, we would not interfere with that portion of the judgment requiring Wyndham to restore the plaintiff's portion of the party wall.
6We are not persuaded that there is any reviewable error in the trial judge's findings with respect to the cost of the new roof and accordingly dismiss the appeal with respect to para. 4.
7No appeal is taken against the award of punitive damages in para. 4.
8We agree with the reasons of the trial judge dismissing Wyndham's counter-claim for a declaration that it has title to the plaintiff's portion of the second story block wall by operation of adverse possession. This was a party wall, and in the circumstances, there was no evidence capable of supporting a finding that Wyndham or it predecessors had possession of respondent's side of the wall or intended to exclude the respondent or their predecessors in title.
9As we have essentially affirmed the judgment with some minor variation, we see no reason to alter the disposition as to costs in para. 6.
10The parties may make brief written submissions not to exceed four pages double- spaced as to the costs of the appeal. Respondents submissions to be made within ten days of the release of this endorsement; appellants submissions to be made within seven days thereafter; any reply submissions to be made within five days thereafter.
"M.J. Moldaver J.A."
"Robert J. Sharpe J.A."
"G.P. Killeen J. (Ad hoc)"