CITATION: Toronto (City) v. Peacock, 2026 ONCJ 417
DATE: July 13, 2026
ONTARIO COURT OF JUSTICE BETWEEN:
CITY OF TORONTO
The “Prosecutor”
— AND — GREGORY PEACOCK
The “Defendant”
Before Justice of the Peace A. N. Lavictoire
Heard on: April 8 and 13, 2026
Written Reasons for Judgment released on: July 13, 2026
Mr. G. Peacock.................................................................................................... Self-represented
Mr. C. Bendick................................................................................... Counsel for the Prosecution
Reasons:
- Mr. Gregory Peacock (the “Defendant”) was charged on March 8, 2024 with three offences pursuant to s. 36(1)(b) of the Building Code Act, 1992, S.O. 1992, c. 23 ("BCA"), namely he is charged for being the owner of 54 Albany Avenue in the city of Toronto, for failing to comply with:
a Property Standards Order dated December 4st, 2023, issued pursuant to s. 15.2 of the BCA (“Order #1”);
a Property Standards Order dated December 1st, 2023, issued pursuant to s. 15.2 of the BCA (“Order #2”); and
a Property Standards Order dated December 1st, 2023, issued pursuant to s. 15.2 of the BCA (“Order #3”).
- Following confirmation of jurisdiction, the Court reviewed the trial process with the Defendant who was self-represented. He confirmed that he was ready to proceed and entered pleas of not guilty to all charges before the Court. Mr. Bendick appeared as prosecutor on behalf of the City of Toronto.
Issues:
Several issues have been raised in this hearing by the Defendant:
Whether the Defendant lacked notice to appeal the Property Standards Orders and if so whether this affects the validity of the Property Standards Orders or his obligation to comply.
Whether the officer’s entry to the property by a tenant that was later deemed not to be a lawful tenant affects the admissibility of the evidence or the validity of the order.
Whether the Defendant has established a due diligence defence on a balance of probabilities.
Prosecution Evidence & Position
The prosecution submits that it has established the essential elements of each offence beyond a reasonable doubt. The prosecution further submits that the Defendant has failed to establish any defence of due diligence on a balance of probabilities for the offences before the Court. Accordingly, the prosecution submits that a conviction should be entered on each offence.
Officer Mazumder, a Municipal Standards Officer employed by the City of Toronto, testified on behalf of the prosecution. His responsibilities include investigating complaints, inspecting properties, and enforcing property standards requirements.
On November 29, 2023, officer Mazumder testified that he attended 54 Albany Avenue following a complaint. Access to the property was provided by an individual whom he understood to be a resident. During the inspection, he observed evidence of multi-tenant occupancy and numerous interior and exterior property standards deficiencies. The second floor was not inspected. Photographs taken during the inspection were filed as Exhibit 3.
The officer described the property as being in a significant state of disrepair. Externally, he observed amongst other things, deteriorated siding, unsafe exterior stairs, missing or inadequate guards, debris, and other maintenance deficiencies. Internally, he observed damaged walls, ceilings and flooring, deteriorated fixtures, missing components, and various safety concerns, including the use of a hockey stick in place of a proper stair handrail.
As a result of his inspection, Officer Mazumder issued three Property Standards Orders pursuant to s. 15.2 of the Building Code Act.
Order 1, filed as exhibit 4, dated December 4, 2023 with a completion date of February 2, 2024.
Order 2 filed as Exhibit 5 dated December 1, 2023 with a completion date of January 30, 2024.
Order 3 was issued on December 1, 2023 and filed as Exhibit 6 with a completion date of January 2, 2024.
These orders addressed various exterior and interior deficiencies, including structural maintenance concerns, roof defects, deteriorated walls and flooring, unsafe stairs and handrails, fixture deficiencies, and pest-control concerns.
The Orders were initially sent by registered mail to the Defendant. After the registered mail was returned unclaimed, the officer emailed the Orders to the Defendant and posted them on the property on January 9, 2024. The officer testified that the Defendant subsequently acknowledged receipt and requested additional time to complete the required work.
Officer Mazumder re-attended the property on January 12, January 26, and March 8, 2024. Based on his observations and the photographs taken during those attendances, he concluded that the deficiencies identified in the Orders remained substantially uncorrected. He further testified that despite repeated efforts to communicate with the Defendant, he received little engagement regarding compliance or clarification of the required work.
The City submits that the essential elements of all three offences have been proven beyond a reasonable doubt. The Orders were properly issued, served, and never appealed. The evidence of Officer Mazumder, together with the photographic exhibits and the Defendant’s own admissions, establishes that the Defendant failed to comply with each Order.
The City further submits that the Defendant has failed to establish due diligence. In particular, the Defendant did not undertake meaningful efforts to comply with the Orders, seek clarification from the inspector or the City, obtain contractors or estimates, request an extension of time, or otherwise take reasonable steps toward compliance.
Finally, the City submits that the Defendant’s objections to the wording, reasonableness, necessity, and validity of the Orders constitute an impermissible collateral attack. Such issues cannot properly be raised in these proceedings and, in any event, do not provide a defence to the charges before the Court.
Defendant’s Evidence and Position
The Defendant was advised of his right not to testify. He was informed that he was under no obligation to give evidence and that, should he choose to testify, he would be subject to cross- examination by the prosecutor. He chose to testify.
He acknowledged that he was the owner of 54 Albany Avenue during the relevant period. He testified that he later sold the property in June 2024 due to financial difficulties and concerns raised by the City of Toronto regarding maintenance issues. Following the sale, he remained at the property as a tenant, however he is no longer responsible for its upkeep.
He testified that, beginning in 2020, he spent a significant amount of time outside Toronto, primarily in the United States, due to his wife's employment and family obligations. Between November 29, 2023, and March 8, 2024, he was absent from Toronto for substantial periods of time. In support of this evidence, he filed travel confirmations showing a departure from Toronto to California on December 5, 2023 (Exhibit 15), a return flight to Toronto on December 19, 2023 (Exhibit 13), and a subsequent departure from Toronto to Victoria on December 27, 2023 (Exhibit 14).
The Defendant acknowledged that the address of service was his address for service and that he filed his income taxes under that address.
The Defendant testified that he did not become aware of the Property Standards Orders until January 9, 2024, when they were emailed to him and posted at the property. He submits that by that time the appeal period had expired, depriving him of a meaningful opportunity to challenge the Orders. On that basis, he submits that the orders should not be considered valid or enforceable, or that he should not be held responsible for failing to comply with it.
The Defendant further submits that the officer’s entry into the property was unlawful, as the individual who granted access was not authorized to do so. He claims that the individual who provided access to the officer was not a lawful tenant but rather a squatter, and that he was in the process of attempting to have him removed from the property. In support of this position, the Defendant filed an order from the Landlord and Tenant Board dated April 17, 2024, filed as Exhibit 12 which found that the said individual did not have a tenancy agreement with the Defendant. On that basis, the Defendant submits that the order is invalid or, alternatively, that the evidence obtained through the inspection should be excluded.
The Defendant also provided evidence in relation to each of the Property Standards Orders issued to him, spending a significant amount of time addressing each item. As he was self-represented, I permitted him significant latitude during the trial to ensure procedural fairness, including providing him with ample opportunity to review each item in the orders, both during his testimony and again during his submissions. This was to ensure that no aspect of his defence was lost due to misunderstanding, misinterpretation, or difficulty in expressing his evidence.
I will summarize his position only, as the full evidence forms part of the record.
With respect to Order #1, the Defendant submitted that the required repairs were vague, inadequately particularized, and, in some instances, unnecessary. He argued that the requirement to install a guard on the front porch was unclear, that existing railings provided adequate safety, and that the inspector relied on incorrect code provisions and failed to take relevant measures. He further submitted that the garage-wall and stair-repair items lacked sufficient particulars and that the photographic evidence did not support non-compliance. Finally, he maintained that the exterior wall and siding deficiencies were not clearly specified and that winter weather prevented him from completing the required exterior work within the compliance period.
With respect to Order #2, the Defendant submitted that the wording of the required roof repairs was vague and ambiguous. He testified that, in his understanding, Order 2 referred primarily to mismatched shingles rather than broader roof deficiencies. He also questioned the terminology used in the Order, including references to the “roof deck” and “catwalks,” and maintained that the Order did not clearly identify what work was required or which areas required repair. He therefore submits that he was unable to determine how to comply with the Order. In any event, he testified that the required work could not reasonably be completed during the winter months.
With respect to Order #3, the Defendant similarly challenged both the clarity and necessity of several of the required repairs. In particular, he testified that the hockey stick used in place of a handrail functioned adequately, that he had received compliments about it, and that he saw no need to replace it. He submitted that removing the kitchen door constituted compliance with the Order and maintained that the kitchen sink was already in proper condition, while any leaking faucet had been repaired. He further testified that a lighting cover was unnecessary, that installation of such a cover could itself create safety concerns, and that the applicable by-law did not require one. He maintained that the rear entrance stairs had been adequately stabilized through his own efforts and that the walls and flooring did not require repair or replacement. The Defendant also questioned the basis for requiring licensed pest-control services and maintained that certain items were either unclear or already complied with applicable standards.
In sum, the Defendant submits that the orders were vague and unclear, and in some cases relied on incorrect provisions of Chapter 629, which made compliance difficult. He maintains that he took reasonable steps to comply, that he did comply with certain items, and that, based on his interpretation, he was in compliance with others. He conceded that several items identified in the orders remained unaddressed; however, his evidence was that he was unable to comply because the requirements were unclear, were not reasonable or necessary in his view, as he believed he was already in compliance, and, in some instances, that winter weather conditions made compliance impossible.
The Defendant testified that he personally maintained and repaired the property without the use of contractors and did not keep receipts for any work performed. He submits that the standard of repair applied by the officer was too high and that he had complied with the deficiencies identified.
The Defendant also testified that he does not have a property manager or any designated individual to manage the property or its affairs while he spends a significant amount of time of the year outside the country.
Overall, the Defendant's position is that he acted reasonably based on his understanding of the Orders, his personal assessment of the alleged deficiencies and safety risks, and the constraints created by his travel, winter weather conditions, and the presence of an individual whom he maintains was unlawfully occupying the property. He submits that he exercised due diligence despite the City's finding of non-compliance. The Defendant further maintains that the Orders were unclear, imprecise, or based on incorrect or inapplicable provisions, which made compliance difficult or impossible.
The Defendant’s position is also that he was unfairly targeted for enforcement, as other properties with similar deficiencies were not subject to orders, and that the City was motivated by improper purposes.
With respect to service, the Defendant disputes any suggestion of bad faith. He submits that his absence from the city or country was not intentional avoidance, and that frequent travel does not, in itself, demonstrate a lack of good faith.
Finally, regarding entry onto the property, the Defendant does not dispute that the officer believed the entry was lawful. However, he submits that the evidence obtained should be given little weight, if any, as it was collected following entry granted by an individual who may not have had proper authority.
ANALYSIS
To establish the offence under s. 36(1)(b) of the BCA, the prosecution must prove beyond a reasonable doubt all the essential elements of the offence, namely that the Defendant was the owner of the property, that the three orders were issued pursuant to s. 15.2 of the BCA and that the Defendant failed to comply with the orders within the time specified.
There is no dispute that the Defendant was the owner of the property at all material times. This is supported by the evidence, including the certified property assessment records filed as Exhibit 2, and was not challenged by the Defendant in his testimony.
Issue #1: Notice and Service
The first issue for determination is whether the Defendant’s claim of lack of actual notice of the Property Standards Orders until January 9, 2024, together with the expiry of the appeal period before that date, affects the validity of the orders or otherwise relieves the Defendant of his obligation to comply.
The Defendant submits that he was not given a meaningful opportunity to appeal the orders and, on that basis, that the orders should not be considered valid.
The orders were served in accordance with the requirements of the BCA by registered mail. Although the Defendant did not claim the mail, service is deemed effective as it was sent to his last known address, including the address used for tax purposes. The Defendant acknowledged in his testimony that this was his address for service.
I accept that the Defendant may not have had actual notice of the order at the time it was issued. He testified that he spends significant time outside the city and provided booking confirmations indicating that he was travelling in the United States during the relevant period.
The Defendant’s own evidence establishes that he was in Toronto from at least December 19 to 27, 2023 yet there is no evidence that he took any steps during that time to retrieve or claim the registered mail. While he states that he does not remember checking for it or suggests it may not have been there, he does not dispute that the address used for service was his.
He further acknowledged that he had not designated anyone or retained a property manager to manage the property or his affairs while he spent a significant portion of his time outside the country as a landlord.
Despite the absence of any evidence that the Defendant took steps to retrieve the registered mail or otherwise monitor correspondence, I accept that he may only have become aware of the orders on January 9, 2024, after the appeal period had expired. However, this does not affect the validity or existence of the orders.
Upon becoming aware of the orders, the Defendant could have taken steps to seek an extension of time to appeal or to obtain legal advice as to how to proceed. There is no evidence that he did so.
This proceeding is not an appeal of the orders. The orders stand as issued and are valid and binding. Any challenge to the validity of the order, including the circumstances under which it was issued or served, ought to have been raised through the appropriate appeal process. Accordingly, I do not accept the Defendant’s submission on this issue.
In my opinion, I would add that any delay in the Defendant’s actual notice of the orders does not invalidate them automatically, but may, affect the timeline for appeal and could give rise to a request for an extension of time to appeal before a court or tribunal with jurisdiction to grant such relief (see Sutherland Lofts Inc. v. Peck, 2017 CarswellOnt 6596).
Issue #2 - Officer’s Entry into the Property
The second issue raised by the Defendant is whether the Defendant’s allegation that the officer’s entry into the property was unlawful affects the admissibility of the evidence and, if so, the validity and determination of the charges.
The Defendant submits that the officer’s entry into the property was unlawful pursuant to Toronto Municipal Code Chapter 629. He argues that, as a result, the evidence obtained during the inspection should be excluded and that the orders are invalid. In support of this position, he relies on a Landlord and Tenant Board tribunal finding dated April 17, 2024, filed as Exhibit 12 which found that the individual who granted access to the officer was not an occupant and therefore lacked the authority to consent to entry.
A remedy of that nature would require an application under the Canadian Charter of Rights and Freedoms. No Charter application was brought, and no notice was provided to the prosecution. In the absence of a properly constituted application, I am unable to consider this issue or grant any remedy.
Additionally, challenging the validity of the Property Standards Orders based on alleged unlawful entry constitutes a collateral attack on those orders, which seeks to invalidate the orders in a proceeding whose specific object is not the reversal, variation, or nullification of the order. (see R. v. Irwin, 2020 CarswellOnt 18293). I will review this more in detail below.
This proceeding is not the appropriate forum to re-litigate the authority for entry or the validity of the orders, as such matters ought to have been addressed at the time the Property Standards Orders were issued. The role of this Court is not to revisit the appropriateness of the orders, but to determine whether the Defendant failed to comply with them.
In any event, whether the building inspector entered without consent does not alter the core concern of whether the building fails to comply with property standards, as it does not repair deteriorating conditions or render the building safe (see Hussain v. Municipality of Chatham-Kent, 2020 CarswellOnt 17730). If the building inspector engaged in wrongful conduct amounting to actionable trespass, the persons aggrieved have their remedy at law by commencing the appropriate civil proceeding.
The orders stand as issued and are valid and binding. Again, any challenge to the validity of the orders, including the circumstances under which they were issued, ought to have been raised through the appropriate appeal process.
There is no evidence before the Court that the Defendant took any steps to appeal the order or sought to do so. As noted in Toronto (City) v Bleta, where no appeal is filed, the order becomes final and binding, and the owner is required to complete the specified repairs by the compliance date.
Issue #3 – Essential elements of the offences
The third issue is whether the essential elements of the offences against the Defendant have been proven beyond a reasonable doubt.
The prosecutor is only required to prove there had been a failure to rectify one item on the each order to make a prima facie case under s. 36(1)(b) for each offence. It does not have to prove that all repairs have been made under each order, this was also noted in City v. Bleta, 2003 CarswellOnt 1613.
In this case, I am faced with conflicting evidence as to whether the deficiencies identified in the Orders were remedied. I have assessed the evidence in accordance with the principles set out in R. v. W. D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. As noted by the Supreme Court of Canada, if I believe the Defendant's evidence, I must find him not guilty. Even if I do not believe the Defendant's evidence, if it leaves me with a reasonable doubt as to his guilt, I must find him not guilty. Finally, even if I do not believe the Defendant's evidence and it does not raise a reasonable doubt, I must determine whether, on the evidence that I do accept, the City has proven the Defendant's guilt beyond a reasonable doubt.
I find that the Defendant’s evidence does not raise a reasonable doubt. Even if I were left uncertain with respect to the state of certain items, when I consider the evidence as a whole, including the photographic evidence and the viva voce testimony of both the officer and the Defendant, I am satisfied beyond a reasonable doubt that at least one or more items under each order remained unremedied within the time required. I found the officer’s evidence to be credible and reliable. His testimony was clear and consistent and was supported by the photographic exhibits.
The Defendant's submissions regarding the wording of the Orders, the adequacy of the existing conditions, and the necessity of repairs are more properly considered in the context of his due diligence defence. To establish the reus of the offences, I am satisfied that the evidence demonstrates that at least one item under each Order remained outstanding beyond the applicable compliance date. Indeed, I find that a substantial portion of each Order, if not all of the required work, remained uncompleted. By way of example, with respect to Order #1, the Defendant acknowledged that certain exterior repairs had not been completed due to winter weather conditions. With respect to Order #2, the evidence of Officer Mazumder, together with the photographic exhibits, established that required roof repairs remained outstanding. With respect to Order #3, the Defendant acknowledged that the hockey stick remained in place of the required handrail and that the lighting fixture remained uncovered because he did not consider those items to require repair.
Given that at least one item under each order remained unremedied, I am satisfied that all three orders were not complied with, and a detailed item-by-item analysis is not required.
I am satisfied that the prosecutor has established the essential elements of each offence beyond a reasonable doubt.
Issue #4: Due diligence
The offence under section 36(1)(b) of the BCA for failing to comply with an order is a strict liability offence, not one of absolute liability, meaning the defence of due diligence is available.
This means that once the City proves that the prohibited act has occurred, the Defendant can avoid liability by proving on a balance of probabilities that all reasonable care was taken as noted in R.
v. Sault Ste. Marie (City), 1978 CarswellOnt 594. The due diligence defence in a strict liability case is based on a standard of reasonable care. Reasonable care and due diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt and continuing action.
The Defendant must demonstrate that on a balance of probabilities he has made every reasonable effort to comply with each order. As noted in City v. Bleta, 2003 CarswellOnt 1613 at para. 91, “this would include the owner showing positive actions of contacting and cooperating with the municipality, obtaining quotes from tradespeople, scheduling tradespeople, ordering materials, drawing up plans, obtaining permits, making reasonable repairs, or proceeding or acting promptly with the repairs”.
The Defendant advances a due diligence defence on three grounds.
First, he submits that the standard applied by the officer was unreasonably high.
Second, he contends that the wording of the orders was unclear, which he says prevented him from completing certain required work.
Third, he submits that some items could not be completed due to seasonal conditions, including winter weather.
Ground 1 - Standard of Repair
The first ground raised by the Defendant under the due diligence defence is whether the standard of repair applied by the officer was unreasonable to prevent compliance with the orders.
I note that the City of Toronto has the power to establish standards on how structures or dwellings on public or private property may be constructed. It can also prescribe standards for the materials to be used on a dwelling and the overall aesthetic appearance of the structure or its parts. If a dwelling or property falls below any standard established by the City of Toronto, then it may order the owner or occupant to bring that dwelling or property up to the minimum standard as prescribed by the Toronto Municipal Code Chapter 629.
Pursuant to Toronto Municipal Code Chapter 629 and as noted in City v. Bleta, 2003 CarswellOnt 1613, the repair must also be made in a good workmanlike manner with materials that are suitable and sufficient for the purpose and be free from defects. This means that complying with an order means both completing a repair and ensuring the repair meets the prescribed standard so that it is acceptable to the City of Toronto.
I do not accept the Defendant’s submission that certain repairs were unnecessary or that the measures he described were sufficient. His evidence reflects his own subjective assessment of the deficiencies that is inconsistent with the standard required under Toronto Municipal Code Chapter 629.
The suggestion, for example, that a hockey stick could serve as an adequate stair handrail, or that other deficiencies, such as a missing light cover did not require attention, does not meet the prescribed standard of repair.
The photographic evidence filed as exhibits, together with the officer’s testimony, establishes that the property, both internally and externally, was in a state of significant disrepair. Internally, the conditions observed included but not limited to deteriorated surfaces, holes in the walls and ceilings, and flooring and walls that remained in poor and unrepaired condition.
Externally, the evidence demonstrates that the property was similarly not maintained in good repair, with deteriorated siding, worn surfaces, and other deficiencies affecting the structural and safety integrity of the building. I accept that some items may have been addressed; however, it is evident that several deficiencies were not remedied.
These conditions, taken together, raise clear safety concerns for occupants and the public. I do not accept the Defendant’s characterization of the property nor the standard of repair, as it is not supported by the evidence. As noted, I find that the evidence establishes that the property was in a state of disrepair on March 8, 2024.
Further, the Defendant is not qualified as an expert or tradesperson and provided no reliable evidence to support his view as to what constituted adequate repairs. I find that the Defendant understated the extent and seriousness of the deficiencies at the property.
The Defendant also did not provide any evidence to support that he made any reasonable efforts to comply with the orders. In particular, there is no evidence that he contacted the City to seek clarification, obtained quotes or retained tradespeople, ordered materials, undertook the required repairs, or took any meaningful steps toward compliance within the prescribed time.
In assessing due diligence, it is also important to consider the broader public safety context. Where the safety of a residential building is at issue, property owners are expected to act with diligence and urgency. The absence of evidence demonstrating that the Defendant undertook repairs or took reasonable steps to do so weighs against a finding of due diligence.
Accordingly, I find that the Defendant has not established a due diligence defence on this ground.
Ground 2 - Wording of the Required Repairs and Deficiencies -The Doctrine of Collateral Attack
The second ground raised by the Defendant under the due diligence defence is whether the wording of the orders was vague and unclear to prevent compliance. The Defendant claims that his failure to receive proper explanation of the deficiencies prevented him from complying.
To the extent the Defendant takes issue with the wording, scope, accuracy, or reasonableness of the Orders, the appropriate course was to pursue the statutory appeal process provided under the legislation. Such arguments constitute an impermissible collateral attack in proceedings for failing to comply with a Property Standards Order.
In this case, the Defendant did not appeal any of the Orders. Instead, he seeks in these proceedings to challenge the adequacy of the descriptions contained in the Orders, the applicability of certain provisions relied upon by the inspector, and the necessity of some of the required repairs.
I agree with the Crown that these submissions fall within the collateral attack doctrine. In R. v. Irwin, 2020 ONCA 776, the Court of Appeal confirmed that where legislation provides a mechanism to challenge an order, a person may not simply ignore the order and later attack its validity in enforcement proceedings.
The collateral attack doctrine precludes such an approach. Where an order has been issued and no appeal is taken in accordance with the governing legislation, the trial court does not sit as an appeal body reviewing the correctness, reasonableness, or clarity of the order. Rather, the order stands as issued and remains valid and binding unless set aside through the appropriate statutory process.
The principles articulated in Irwin were recently applied and confirmed in Halton Hills (Town) v. Gordon, 2026 ONCJ 6. In Gordon, the appellant argued that aspects of a Property Standards Order were vague and that certain terms used in the order were unclear. The Court held that such arguments ought to have been raised through the statutory appeal process rather than in proceedings for failing to comply with the order.
As noted by Puddington J. in Gordon at para. 37: "If the appellant did not understand what 'garbage' was, or wanted to assert that the items on his property were not, for example, 'derelict', he could have brought those arguments to the PSC and, ultimately, to the Superior Court of Justice In
other words, the appellant had the ability to argue that he was not 'satisfied with the terms or conditions of the order' and appeal to the committee and the Superior Court of Justice. He did not."
The same reasoning applies here. If the Defendant believed that the Orders were vague, improperly framed, based on incorrect provisions, or otherwise unreasonable, those issues ought to have been raised before the appropriate appeal body.
Further, there is no evidence that the Defendant sought clarification from the inspector, obtained legal advice, pursued an extension of time to appeal, or otherwise took steps either to challenge or comply with the Orders after becoming aware of them.
Accordingly, I reject the Defendant's submission that the wording or alleged lack of clarity of the Orders prevented compliance or supported a due diligence defence. I find that the Defendant has not established due diligence on this ground
Ground #3 - Seasonal Condition
The third ground advanced by the Defendant under the due diligence defence is that seasonal conditions, namely winter weather in Toronto prevented compliance with the orders.
In assessing whether seasonal winter weather conditions constitute a valid due diligence defence, courts consider factors such as the complexity of repairs, seasonal conditions, and the availability of materials or tradespeople Toronto (City) v. Bleta, 2003 CarswellOnt 1613.
The Defendant did not complete the required roof and exterior repairs between January and March. Despite this, there is no evidence that he took any meaningful steps toward compliance during that period. While the time for compliance fell during the winter months, the Defendant provided no evidence, beyond his assertion, that weather conditions rendered the required roof and exterior repairs impossible or impracticable. There is no evidence that he contacted any contractors, nor is there evidence that contractors were unavailable or unable to complete the work. Further, there is no evidence that he made any effort to obtain materials, arrange for the work, or request an extension of time.
The Defendant's failure to take any meaningful steps toward compliance between January and March undermines any due diligence claim based on winter weather. The Defendant requires proof of reasonable, though unsuccessful, efforts to comply and not simply an explanation for inaction. Without evidence that the Defendant attempted to obtain contractors, sought alternative methods of compliance, or took any concrete steps despite weather conditions, the seasonal weather argument fails to establish due diligence. The Defendant cannot establish due diligence by demonstrating an inability to comply due to circumstances beyond their control without also showing that reasonable efforts were made despite those circumstances.
In the absence of such evidence, I am not satisfied that the Defendant took all reasonable steps to comply or that compliance was not reasonably achievable. The mere fact that it was winter, without more, is insufficient to establish a due diligence defence.
I find that the Defendant has failed to establish, on a balance of probabilities, that he took all reasonable steps to comply with the orders. The defence of due diligence is therefore rejected on all grounds.
Bad Faith
Finally, the Defendant alleged during his testimony that he was unfairly targeted by the City of Toronto for enforcement. Although this submission was not developed in any meaningful way and no substantive argument was made in support of it, I will address it briefly.
The Defendant submits that he was treated unfairly by the City of Toronto because other properties in the neighbourhood with similar deficiencies were not subject to enforcement. He argues that he was unfairly singled out for enforcement, pointing, for example, to neighbouring homes that he says had comparable deficiencies with their front porch guards and railings but were not the subject of enforcement action by the City.
I do not accept this submission. First, allegations of selective enforcement or improper motive may, in rare cases, amount to an abuse of process or to potential civil liability for negligent enforcement, not to defences available in a prosecution for non-compliance with orders. Second, such a finding requires clear evidence of bad faith, improper purpose, or malicious conduct on the part of enforcement officials. I find that, the mere fact that other properties may not have been subject to similar enforcement does not, on its own, establish bad faith.
In addition, the proper forum for challenging alleged bad faith or improper motives in issuing Property Standards Orders is through the statutory appeal mechanism under the BCA, not as a defence in a prosecution for non-compliance (see again R. v. Irwin, 2020). Again, once the appeal period has expired without an appeal being filed, the Orders become final and binding.
In this case, I find that there is no evidence before the Court to support a finding of bad faith or improper motive. The Defendant's claim that enforcement was motivated by tenant complaints or that he was unfairly targeted does not establish the required bad faith or abuse of process. Accordingly, this argument does not assist the Defendant and is rejected.
The City has established the essential elements of each offence beyond a reasonable doubt. The Defendant has failed to establish, on a balance of probabilities, that he exercised due diligence. The defence of due diligence is rejected on all grounds.
I find the Defendant guilty of all three offences before the Court.