Upchurch v. Oshawa (City), 2008 CanLII 53861 (ON SCDC)

DIVISIONAL COURT FILE NO.: DC-07-084386-00

DATE: 20081021

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J.S.C.J., LALONDE and R.D. GORDON JJ.

IN THE MATTER OF Section 26(1) of the Building Code Act, 1992, S.O., 1992, c.23.

B E T W E E N:

DONALD THOMAS UPCHURCH and CARLA PAULINE UPCHURCH

Scott R. Fairley for the Appellants

Appellants

• and -

THE CORPORATION OF THE CITY OF OSHAWA

David J. Potts for the Respondent

Respondent

HEARD: September 18, 2008 at Newmarket

REASONS FOR JUDGMENT

FOR THE COURT:

[1]

Introduction

This is an appeal of the decision of Lack J. dated May 8, 2007 in which she dismissed the appellants’ appeal against an order issued by an inspector from the City of Oshawa pursuant to s. 12(2) of the Building Code Act, 1992, S.O. 1992, c.23, as amended. Before the Divisional Court the appellants seek an order rescinding the No Permit Order issued to them requiring them to cease construction of a new front deck on their property. This appeal is brought pursuant to s. 26 of the said Act.

[2]

Fresh Evidence

Before commencing the proceeding before us, the appellants brought a motion seeking to introduce an engineering report provided by Gianier Engineering Ltd. in which the author of the report concludes that the newly constructed porch deck in question meets and/or exceeds the minimum structural requirements of the Ontario Building Code 1997. We allowed this evidence to be put before us concluding that it adequately met the test for the introduction of fresh evidence.

[3]

Background and Issues

The issue in this case is whether the reconstruction of this deck met the requirements of the Policies and Procedures Manual for the City of Oshawa, more specifically, as it relates to the height of residential decks. In the Policy Manual, it states that a building permit is not required for the construction of residential decks not exceeding 600 mm. (24 inches) in height above adjacent grade with no roof above. Whether there was a roof above was never at issue in the proceeding before Lack J., the only issue being the height of the deck from grade. The evidence before Lack J. indicated that the appellant Upchurch attended at the City of Oshawa for the purpose of obtaining a building permit to replace the front deck on his property. He was assisted at that time by one Volkirk Van Beusekom of the Buildings Division. The appellant Upchurch, in evidence, stated he was advised by Van Beusekom that he did not require a building permit if, upon completion, his deck would not be greater than two feet above the adjacent grade. When a building permit is not required, the Building Code does not apply.

4Apparently, acting on a complaint made by a third party, a building inspector, one Kevin Van Vaals, attended the property to inspect the deck on September 28, 2006. After inspecting the property, Van Vaals was not certain whether a building permit would be required and he consulted his supervisor, one Herman Guta, to determine whether the discretion to not require a building permit applied. Apparently he was told by Guta that a permit was required. Accordingly, Van Vaals advised the appellants that a building permit would be required because they were building a porch not a deck. As a result, Van Vaals issued a No Permit Order.

5At the time the inspection was made by Van Vaals, the construction of the deck had not been completed. Van Vaals apparently was satisfied that the front portion of the deck met the two foot requirement in that planters had been put into place in front of the deck, making it readily obvious that the deck boards were less than two feet above grade, which would have been the top of the planters. Unfortunately, the planters had not been installed at the sides of the deck, which is the area Van Vaals measured and he found to have been in excess of two feet above the grade at that time.

6The deck has now been completed and the planters have been installed at the sides of the deck, such that the distance between the grade (the top of the side planters) and the deck floor is considerably less than two feet.

[7]

Analysis

In our view, the appropriate time for inspection would have been the completion of the project, not at some point midway through construction.

8Relying upon the advice given in the first instance, the appellants, in our view, did everything properly on the understanding that with the planters installed, the distance between grade and the deck floor would be considerably less than two feet. They acted upon the advice given by a building official when they sought a building permit.

[9]

Disposition

In the circumstances, we are of the view that the decision of Lack J. was unreasonable and ought to be set aside, and accordingly we do so. The No Permit Order is hereby rescinded, the costs award of Lack J. set aside, and the appellants are granted their costs in the amount of $3,500.00.

Cunningham A.C.J.S.C.J.

Lalonde J.

R.D. Gordon J.