COURT FILE NO.: 33338
DIVISIONAL COURT FILE NO. 1501
DATE: 20060602
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
cunningham a.c.j., chapnik and ferrier jj.
B E T W E E N:
AYERSWOOD DEVELOPMENT CORPORATION and 1510231 ONTARIO INC.
Applicants (Respondents)
- and -
THE CORPORATION OF THE CITY OF LONDON ROCKY CERMINARA (CHIEF BUILDING OFFICIAL)
Respondents (Appellants)
Alyson Brady, for the Respondents
Geoffrey P. Belch, for the Appellants
HEARD at London: April 19, 2006
BY THE COURT
[1] This an appeal by the Corporation of the City of London (the “City”) from a decision of Mr. Justice Killeen dated February 28, 2005. In that decision, Killeen J. granted the application of Ayerswood Development Corp. (“Ayerswood”) and 1510231 Ontario Inc. (“1510231”) to overturn the decision of Rocky Cerminara, Chief Building Official (the “CBO”). The CBO had refused to issue unconditional building permits in respect of 28 townhouse units in Blocks 1-4 (also described as Blocks A-D), on lands owned by 1510231, located at 1203 Hamilton Road, London, Ontario (the ”Property”).
[2] The CBO issued the permits with a condition that, prior to occupancy, the owner would repair or replace the defective gabion wall on the Property.
[3] Upon hearing submissions and reading the materials filed, Killeen J. concluded that the owner had complied with all statutory requirements and that, in imposing the condition, the CBO was attempting to use the powers in the legislation for his own purposes. Accordingly, Killeen J. ordered that the permits be granted unconditionally.
[4] With respect, we are all of the view that the learned trial judge erred in finding that the CBO acted outside the scope of the powers and authority granted to him in the relevant legislation; and therefore, the appeal should be allowed.
BACKGROUND
Site Plan Control
[5] The entire City of London is designated as a site plan control area. The Property is subject to site plan control and the City’s site plan control by-law.
The First Phase of Development
[6] The respondent 1510231 is the current owner of the Property. The respondent Ayerswood performed the role of general contractor. On August 31, 1989, the City entered into a site plan agreement with the previous landowner, Trenlon Developments Corporation (“Trenlon”), pursuant to what is now s. 41 of the Planning Act, R.S.O. 1990, c. P.13 (“Planning Act”) for the construction of 156 townhouse units on Hamilton Road, in London, Ontario (“Phase I”). The agreement was registered on title to the property.
[7] The agreement called for Trenlon to perform at no expense to the City, a number of things, including the installation of a sanitary pumping station, a special access road running through the property along the top of the bank of Pottersburg Creek, and a special gabion mesh wall along the bank of the creek to stabilize it and protect it from erosion.
[8] Trenlon constructed the gabion wall in 1989. Between its construction in late 1989 and about the spring of 1998, the gabion wall performed satisfactorily and without incident.
[9] On or about April 20, 1998, the City’s building division received a complaint concerning the deterioration of the gabion wall, which resulted in a letter from the City to the respective owners of the property on which the gabion wall was built.
[10] In the spring of 1998, the gabion wall collapsed partly in the area owned by 1510231 and partly on an adjacent parcel owned by Middlesex Condominium Corporation 229.
[11] By letters dated May 22, 1998, and August 10, 1998, Development Engineering, the engineering consultant for Trenlon, stated that additional gabions had been installed in late November 1989. In particular, the gabion wall had been modified to accommodate a guardrail that was placed around the curve in the roadway. There was no evidence that the City was consulted at that time or told about the modifications which involved the construction of additional gabion baskets.
The Second Phase of Development
[12] On October 2, 1997, the City approved a site plan for 28 townhouse units along Hamilton Road (“Phase II”).
[13] On March 5, 1998, Trenlon entered into an amending agreement with the City to provide for an additional 28 townhouse dwelling units to be located along the north part of the original property, now owned by the respondent, 1510231. The 1998 amending agreement incorporates the 1989 agreement into its framework.
[14] On May 7, 1998, the amending development agreement and site plan were registered in respect of Phase II. However, the new owner did not pursue the permits for the second phase of construction at this time.
Application for Building Permits
[15] On August 28, 2003, 1510231 applied for 4 building permits to construct 28 townhouses in four separate blocks (Blocks A-D) as detailed in the 1998 amending agreement.
[16] In the fall of 2003, as agent of the owner and its contractor, Ayerswood applied to the City to amend the existing site plan approval to remove plans for a fence in favour of a “noise barrier berm”.
Conditional Building Permits
[17] On October 27, 2003, the CBO agreed to issue 2 conditional permits permitting the construction of Blocks A and D at either end of the project. These permits were subject to a condition that there be no connect, that is no occupancy of the units, until the owner entered into another amending agreement requiring that the gabion wall be repaired and a slope stabilization report completed with respect to the slope on the Property.
[18] On December 9, 2003, the City forwarded a draft amending development agreement and revised site plan which approved the noise berms, as requested, but was made subject to the condition that, prior to occupancy, 1510231 repair or replace the gabion wall on its lands in accordance with sound engineering principles. Subsequently, an engineering study submitted on behalf of the owner concluded that the four proposed new blocks would not be affected by any deterioration of the creek bank.
[19] In March 2004, a City building inspector observed construction on Blocks B and C, for which no building permit had been issued.
[20] On March 17, 2004, an order to comply was issued to Ayerswood, and on March 18, 2004, a stop work order was issued. The City later issued additional conditional permits for Blocks B and C subject to the same “no occupancy” condition.
[21] The special access road, which is a fire access road to the Phase I development, is currently barricaded. Part of the failed road and part of the gabion wall are located on the Property.
JURISDICTION AND STANDARD OF REVIEW
[22] Pursuant to s. 26 of the Building Code Act, 1992, S.O. 1992, c. 23 (“BCA”), this Court has jurisdiction to hear the appeal “on any question that is not a question of fact alone”. The powers of the Divisional Court on appeal are broad and include confirming or altering the judge’s decision, referring the matter back to the judge for reconsideration and substituting its opinion for that of the CBO or the judge.
[23] The standard of review for appeals from the order of a judge is widely accepted to be whether or not the decision of the judge was “clearly wrong”. Deference to a trial judge’s findings of fact is a well-established principle of appellate review. An appellate court should not interfere with the trial judge’s findings of fact unless the trial judge makes a “palpable and overriding error, or a “manifest error” or a “clear error”. Equity Management of Canada v. Corporation of the Town of Halton Hills (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321 (C.A.).
[24] In other words, an appellate court will be justified in disturbing a trial judge’s findings of fact only if a specific and identifiable error made by the judge convinces it that the conclusion of fact reached is unreasonable: see Schwartz v. Canada (1996), 1996 217 (SCC), 133 D.L.R. (4th) 289 at 305-306 (S.C.C.). On questions of law, however, the standard of review is correctness: See Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 at para. 8 (S.C.C.).
[25] In this case, the key issue before Killeen J. was whether the CBO acted beyond the authority provided to him by statute in rendering his decision not to issue full building permits. This is a question of law, attracting the standard of correctness.
THE STATUTORY FRAMEWORK
The Building Code Act, 1992, S.O. 1992, c. 23 as amended (the “BCA”)
[26] Section 8(1) of the BCA provides, in part, that:
No person shall construct…a building…unless a permit has been issued therefore by the chief building official.
[27] Section 8(2) states, in part, that:
The chief building official shall issue a permit under subsection (1) unless,
(a) the proposed building, construction or demolition will contravene this Act or the building code or any other applicable law.
[28] At the relevant time, under O. Reg. 160/93, “applicable law” was defined, for the purposes of s. 8 of the BCA, as “any general or special Act, and all regulations and by-laws enacted thereunder, which prohibit the proposed construction or demolition of the building unless the Act, regulation or by-law is complied with.”
The Planning Act, R.S.O. 1990, c. P-13, as amended (the “Planning Act”)
[29] Section 41(2) of the Planning Act provides as follows:
Establishment of site plan control area
(2) Where in an official plan an area is shown or described as a proposed site plan control area, the council of the local municipality in which the proposed area is situate may, by by-law, designate the whole or any part of such area as a site plan control area.
[30] Section 41(4) provides, in part, as follows:
Approval of plans or drawings
(4) No person shall undertake any development in an area designated under subsection (2) unless the council of the municipality or, where a referral has been made under subsection (12), the Municipal Board has approved…:
- Plans showing the location of all buildings and structures to be erected and showing the location of all facilities and works to be provided in conjunction therewith and of all facilities and works required under clause (7) (a).
[31] As a condition to the approval of the plans referred to in subsection (4)1, a municipality may require the owner of the land to provide to the satisfaction of and at no expense to the municipality, a number of things pursuant to s. 41(7)(a), including:
…facilities to provide access to and from the land such as access ramps and curbings and traffic direction signs;
off-street vehicular loading and parking facilities, either covered or uncovered, access driveways, including driveways for emergency vehicles, and the surfacing of such areas and driveways;
walls, fences….or facilities for the landscaping of the lands or the protection of adjoining lands; and
grading or alteration in elevation or contour of the land and provision for the disposal of storm, surface and waste water from the land and from any buildings or structures thereon.
[32] As a further condition to the approval of the plan and drawings referred to in subs. 41(4), a municipality may, pursuant to ss. 41(7)(b) and (c), require the owner of the land to maintain to the satisfaction of the municipality and at the sole risk and expense of the owner, any of the facilities mentioned in s. 41(7) and enter into one or more agreements with the municipality dealing with and ensuring the provision of such facilities.
[33] Pursuant to s. 41(10), any such agreement may be registered against the land to which it applies and the municipality is entitled to “enforce the provisions thereof against the owner… and any and all subsequent owners of the land”.
[34] Finally, s. 41(13) provides for the delegation of powers as follows:
Where the council of a municipality has designated a site plan control area under this section, the council may, by by-law,
(b) delegate to either a committee of the council or to an appointed officer of the municipality identified in the by-law either by name or position occupied, any of the council’s powers or authority under this section…
THE RELEVANT CASE LAW
[35] As previously noted, pursuant to s. 8(2) of the BCA, the CBO has no discretion to refuse a building permit if all legal requirements for its issue have been met. Nevertheless, as a general rule, a building permit should not be issued for a development in a site plan control area to which s. 41 of the Planning Act applies until site plan approval for the development has been obtained. Without such approval, the proposed building would contravene s. 41(4) of the Planning Act and the permit should be refused: see Quay West v. Toronto (City)(1989), 47 M.P.L.R. 109 (Ont. Div. Ct.) and Shell Canada Products Ltd. v. Barrie (City) Chief Building Official, [1992] O.J. No. 1572 (Gen. Div.).
[36] In the case of 723 Rymal Ins. V. Hamilton (City) Chief Building Official, [2001] O.J. No. 832 (Sup. Ct.), the land proposed to be developed included a house, which had been listed as heritage property. The building permit application was approved on the basis that the house was to be used as a restaurant, and that measures would be undertaken to preserve and maintain the building. After the construction proceeded, the owner applied for a demolition permit in respect of the house. The Court held that the Planning Act is “applicable law” and the demolition would contravene the applicable law; that is, demolition of the house would have prevented Rymal from completing the development in accordance with the approved site plan submitted pursuant to s. 41(4) of the Planning Act and the Planning Act itself.
[37] Clearly, building permits have been issued in some cases in the absence of site plan approval. See, for example, Sixteenth Warden Ltd. v. Markham (Town) Chief Building Official (1993), 1993 8554 (ON SC), 18 M.P.L.R. (2d) 70 (Gen. Div.); Foster v. Waterloo (City), [1993] O.J. No. 415 (Gen. Div.); and Re Revenue Properties Co. and Toronto (City) (1984), 26 M.P.L.R. 165 (Ont. Co. Ct.), aff’d. (1984), 1984 1974 (ON SC), 46 O.R. (2d) 60 (Div. Ct.).
[38] However, these cases were fact specific. The weight of judicial authority has interpreted the relevant legislation as requiring site plan approval as a pre-condition for the issuance of a building permit except when the municipality is acting in bad faith or refuses development approval for an obviously unlawful reason.
[39] In Dominion Stores Ltd. v. Etobicoke (Borough) (1982), 1982 2206 (ON SC), 19 M.P.L.R. 88 (Ont. Div. Ct.), the municipality attempted to interfere with the owner’s lawful use of a public road to access its property by refusing site plan approval, even though the municipality had no statutory authority to prohibit access from the public road in the first place. The conduct of the municipality was found to be clearly “unlawful”.
[40] Likewise, in Polla v. Toronto (City) Chief Building Official (2000), 15 M.P.L.R. (3d) 103 (Ont. Sup. Ct.), where the City attempted to interfere with Polla’s lawful construction of a retaining wall by refusing site plan approval though it had no statutory authority to prohibit its construction, the condition requiring it to tear down the wall was found to be unlawful.
[41] The Ontario Court of Appeal conducted a historical analysis of the planning legislation and its objectives in Re Hi-Rise Structures Inc. v. Scarborough (City) (1992), 1992 7739 (ON CA), 10 O.R. (3d) 299, stating at para. 13:
This historical analysis demonstrates that the provisions of s. 40 are essentially an extension of planning controls. It is the fine tuning of the zoning by-laws. To the extent that agreements are contemplated, they are to assure that facilities such as walkways or landscaping are maintained on an ongoing basis. To the extent that registration is contemplated, it is to assure that successors in title will be bound to observe the covenants. The agreements are unique in that there is no contemplation of an obligation of performance on the part of the municipality….
[42] The court concluded at para. 17 that:
“…in terms of the broad purposes of the statute and its development over the years, a site plan agreement must be viewed primarily as a planning instrument, remaining a contract for enforcement purposes from time to time, but amenable on the change which is inherent in all planning.”
[43] In interpreting the relevant legislative provisions, the courts have generally adopted a liberal approach, taking into account the interests of the community. In Bruce v. Toronto (City), 1971 497 (ON CA), [1971] 3 O.R. 62 (C.A.) the court reviewed the strict interpretation of municipal by-laws and then stated, at p. 66:
Notwithstanding this, it is my belief that Ontario Courts now accept that the obligation imposed on the municipal council to plan for the growth and development of the community demands recognition of the necessity for means to compel the observance of the rights of the community to determine and enforce the direction in which the community should be shaped, and in that regard the rights of the community are paramount to the rights of the owner.
THE DECISION OF KILLEEN J.
[44] On June 9, 2004, Killeen J. heard the application brought by 1510231 and Ayerswood for an order requiring the CBO to issue four unconditional building permits referable to the second phase of the development and the building of the 28 townhouses.
[45] Based on the submissions of counsel and the documentary evidence filed, he found that the applicants had complied with all of the statutory requirements, and as such, the CBO was under an obligation to issue the permits unconditionally pursuant to s. 8 of the BCA.
[46] Killeen J. held that the owner was bound by and entitled to rely upon the original development agreement and the 1998 amending agreement, and that these agreements only required that Trenlon maintain the wall for a period of one year following construction. In addition, the 1998 amendment, which was not revoked by the City, bestowed upon the owner the right to construct the envisaged four blocks.
[47] Though the owner had requested some “rather simple” modifications to the site plan, the learned justice refused to accept the City’s argument that the owner had abrogated the entire agreement. While the City was within its right to impose conditions relating to the minor modifications requested, it could not impose unrelated conditions with respect to the gabion wall.
[48] Thus, in tacking on a duty to repair the gabion wall, the CBO was attempting to use the s. 41 powers in the Planning Act “for his own purposes”. Further, he had “no right to turn himself into a surrogate for the council or Municipal Board under the building permit process as prescribed by s. 8 of the BCA” (para. 69). The court found that, in doing so, Mr. Cerminara “arrogated to himself an unlawful authority in purporting to act under s. 8(3)” of the BCA and the conditional permits he issued were “all without legal effect” (para. 78, emphasis in original).
ANALYSIS
[49] The first error of the trial judge, according to the City, was his finding at para. 5 that the gabion wall had been constructed “according to specifications approved of by the City”. Moreover, the learned judge erred in reaching the conclusions that there was “not a shred of evidence to show that the proposed building work in question would contravene the BCA, the building code or any other applicable law” (para. 65); that the owner’s maintenance obligation was limited to one year by the 1989 agreement (para. 25); and that the City had no power in 2003 to re-open or amend the earlier agreements (paras. 60-63). The City also submits that the trial judge failed to give sufficient deference to the CBO’s exercise of power pursuant to the relevant provisions in the Planning Act.
[50] The position taken by the City, in a nutshell, is that the CBO issued the conditional permits properly and lawfully. In doing so, he was attempting to ensure compliance with the owner’s continuing obligations in the 1989 and 1998 agreements and the provisions of s. 41 of the Planning Act.
[51] We agree and find that the learned trial judge erred in reaching the conclusions he did.
[52] First, the judge’s assertion at para. 5 that the gabion wall was constructed “according to the City’s specifications” ignores the fact that, once the as-constructed drawings were approved in November 1989, the owner unilaterally modified the gabion wall without the City’s authority or approval.
[53] In a letter dated May 22, 1998, the engineering consultant for Trenlon, Development Engineering, stated in part:
Development Engineering was involved in the original design and construction of the gabion wall in 1989. We sought and received the advice of a geotechnical consultant in this matter. The plans were prepared and submitted for approval to the City of London and the Upper Thames River Conservation Authority. The drawings were approved and construction was completed in September of 1989. As-constructed drawings were completed and submitted to the City on November 3, 1989. Late in November of 1989, some additional gabions were installed upstream of the distress location to accommodate a change in the site plan at that time. (emphasis added)
[54] In explaining the reason underlying the modification to the wall, the consultants in a further letter dated August 10, 1998, stated that “the wall was modified in late November 1989 when, during the course of site servicing, a guardrail was proposed to be placed around the curve in the roadway”.
[55] In the result, the approved drawings which showed a gabion wall having a uniform height of four gabion baskets, were modified unilaterally by the owner to include three additional layers of gabion baskets without foundation.
[56] In light of this, it would be clearly wrong, in our view, to conclude that the wall was constructed in 1989 pursuant to the approved specifications. It was not. With respect, in finding that the gabion wall was constructed according to the City’s specifications, the learned judge reached a conclusion that was not substantiated by the evidence.
[57] This may have led him to err in reaching the legal conclusion that there was “no shred of evidence” to show that the proposed buildings would contravene “any other applicable law”.
[58] Based on settled case law that site plan approval constitutes “other applicable law” (see Quay West, supra), and the fact that no such approval was given pursuant to s. 41 of the Planning Act, the proposed construction of Phase II would contravene the relevant legislative provisions. Indeed, when the City agreed to the amending agreement in March 1998, it was not aware of the defective wall, or the modifications made to it by the owner in 1989. Yet, by the time the owner applied for building permits for the second phase of development in 2003, all parties were well aware that the gabions had collapsed.
[59] This case can be likened to the situation in Rymal, supra, in which the building permit had been approved on a certain basis and the owner subsequently applied for a demolition permit. The court in that case held that since the demolition of the house would have prevented Rymal from completing the development in accordance with the approved site plan, it would contravene the Planning Act which is “applicable law”.
[60] Since the construction of Phase II would, in this case, mean that the completion of the development would not be in accordance with the originally approved site plan, it would contravene s. 41 of the Planning Act. In our view, the learned trial judge erred in finding otherwise.
[61] We agree with the judge’s finding at para. 27 that the 1998 agreement is not a free-standing agreement replacing or rescinding the 1989 agreement, but rather, it amends the earlier one to allow for the construction of the new phase of the work.
[62] We do not agree with his holding at para. 25 that the provision for a one year maintenance guarantee on bank stabilization works in para. 13(c)(i) was “the legal limit of the owner’s obligation to the City for the wall, nothing more and nothing less”. On the contrary, a reading of the agreement as a whole demonstrates that there were ongoing maintenance obligations placed upon the owner.
[63] The development agreement of 1989 provided, among other things, for a sanitary pumping station to pump sewage from the project up to Hamilton Road, a special access road running through the project and a special gabion mesh wall along the bank of the creek to stabilize it and protect it from erosion.
[64] Para. 9 thereof refers to joint use of the driveways and services and calls for original and ongoing obligations by Trenlon referable to the road system, sewer system and the gabion wall. It states as follows:
Joint Use of Common Internal Driveways and Services:
The owner(s) of each phase of the development shall enter into agreement(s) with the owner(s) of the other phase(s) to provide for the joint use and maintenance of common internal driveways and services. (emphasis added)
Para. 10 creates ongoing obligations for fire route accesses; and para. 13 contains the special provisions obliging the owner to construct a sanitary pumping station and a riverbank stabilization undertaking which involved the gabion wall. The particular provisions in issue are:
Paragraph 13 (a) The sanitary sewer pumping station shall be constructed and maintained in perpetuity entirely at the sole expense of the owner such that there is no overflow provision.
(c) Prior to issuance of a building permit the developer shall obtain written approval by the City Engineer and the U.T.R.C.A. for any works to be done adjacent to the Pottersburg Creek with respect to riverbank stabilization and storm sewer outlets. In addition the developer shall provide….
(i) a one year maintenance guarantee on bank stabilization works upon final inspection approval.
(ii) “as constructed” drawings of works along the riverbank.
(emphasis added)
[65] Pursuant to para. 14, upon request of the City Engineer, the owner shall deliver a fully registerable grant of easement to the City “for the maintenance of the Pottersburg Creek located at the west limit of this site”. We understand that this provision was never put into effect.
[66] Paragraph 24 provides the City with an ongoing right to enter the lands and premises for the purposes of inspecting the facilities, works and matters to be provided and maintained under the agreement and for the purpose of providing or maintaining at the owner’s expense any facility, work or matter where the owner is in default of doing so for 30 days or more.
[67] In his reasons, the learned trial judge mentioned Trenlon’s consulting engineer’s report which stated that the installation of additional gabions by the City in late 1997 “may be a factor in the change of flow characteristics that may have contributed to the undermining of the gabions”. The trial judge also made specific reference at para. 15 to a report from an expert indicating that “the proposed townhouse/condominium units are outside the zone of influence of potential slippage connected with the existing or future slope failures”. We understand that legal proceedings are pending to determine the issues surrounding the defective gabion wall.
[68] With respect, in our view, the real question is whether the condition imposed by the CBO bears a real and logical nexus to the use of the property. See, for example: Ottawa (City) v. Ottawa (City) Chief Building Official, 2003 49413 (ON SCDC), [2003] O.J. No. 4530 at para. 109 (Div. Ct.).
[69] One of the conditions for site plan approval was that the owner construct, among other things, a gabion retaining wall on the property. A fair interpretation of the whole of the agreement discloses an ongoing obligation of the owner for maintenance of the property, including the gabion wall.
[70] This is not a case such as in Alaimo v. North York (City) (Chief Building Official), [1995] O.J. No. 862 (Gen. Div.) where the chief building official had refused to issue a building permit on the grounds that the proposed construction might cause a nuisance due to the proximity and height of chimneys on adjacent buildings. The court, in that case, held that the CBO could not refuse to issue a building permit pursuant to s. 8(2) of the BCA on common law considerations of nuisance.
[71] Alaimo involved a condition based on speculation; that is not the case here. Indeed, shortly after the granting of site plan approval for Phase II, the gabion wall collapsed.
[72] Prior to the issuance of a building permit, the CBO is mandated by s. 8(2) of the BCA to consider not only the proposed construction but its intended use. The condition imposed by the CBO before issuing the building permits for Phase II, that the owner “repair or replace the gabion wall,” bore a real and logical connection to the agreement, the property and its uses.
[73] Given the pronouncements of the Court of Appeal in Bruce, supra, and Hi-Rise Structures, supra, a site plan agreement is viewed as a planning instrument that remains a contract for enforcement purposes, but is amenable to change, which is inherent in all planning. Overall, the rights of the community are paramount to the rights of the owner.
[74] The access road, which is a fire route, is now closed. 1510231 and Ayerswood proceeded to build and occupy the second phase townhouses without permission. In our view, in granting the building permits for Phase II conditionally, the CBO was acting within the scope of authority provided to him by the legislation.
[75] It makes logical sense that the development should not proceed unconditionally where requirements on the owner relating to a portion of the Property integral to the agreement have not been fulfilled, for whatever reason.
[76] It follows that, in our opinion, the trial judge erred in holding at para. 78 that the CBO arrogated to himself an unlawful authority in purporting to act under s. 8(3) of the BCA.
[77] Moreover, the judge’s statement at para. 69 that the CBO had “no right to turn himself into a surrogate for the council or the Municipal Board”, is incorrect in that s. 41(13) of the Planning Act permits delegation of the authority to the CBO.
[78] In the result, the learned trial judge erred in finding that the CBO exceeded his authority in attaching conditions to the issuance of the said building permits. In our view, the CBO properly and lawfully issued the permits in accordance with the legislation and the community interest.
CONCLUSION
[79] The appeal is allowed. The order of the Honourable Mr. Justice Killeen, dated February 28, 2004, is rescinded, along with the order for costs.
[80] The appellant is entitled to his costs of the appeal and of the hearing before Killeen J., each assessed in the all-inclusive sum of $10,000 for a total amount of $20,000 including G.S.T. and disbursements.
Cunningham A.C.J.
Chapnik J.
Ferrier J.
Released: June 2, 2006
COURT FILE NO.: 33338
DIVISIONAL COURT FILE NO. 1501
DATE: 20060602
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
cunningham a.c.j., chapnik and ferrier jj.
B E T W E E N:
AYERSWOOD DEVELOPMENT CORPORATION and 1510231 ONTARIO INC.
Applicants (Respondents)
- and -
THE CORPORATION OF THE CITY OF LONDON ROCKY CERMINARA (CHIEF BUILDING OFFICIAL)
Respondents (Appellants)
REASONS FOR JUDGMENT
BY THE COURT
Released: June 2, 2006