CITATION: Augier v. City of Hamilton, 2010 ONSC 3423
COURT FILE NO.: DC09-158JR Hamilton
DATE: 2010-06-10
DIVISIONAL COURT - ONTARIO
RE: Gideon McGuire Augier, Applicant, moving party
AND:
City of Hamilton, Respondent, responding party
BEFORE: Mr Justice James Ramsay
COUNSEL: The applicant in person
Ms. Colleen E. Robertshaw for the respondent
HEARD: 2010-06-10
ENDORSEMENT
[1] The moving party has applied for judicial review of two orders made by officials of the respondent under the Building Code Act in July and September of 2009, respectively. The application claims relief on the basis that the building inspector has no authority to inspect a building unless a building permit has been applied for, and that the renovations in question do not amount to construction that is regulated by the Act. The City filed in response to the application the affidavit of Christine Hey, the building inspector. The applicant is moving for an order to compel the affiant to respond to certain questions in cross-examination.
[2] A chronology might help at this point.
Order to obtain building permit issued
July 21, 2009
Order to stop work issued
September 18, 2009
Application for judicial review filed
October 7, 2009
Respondent’s affidavit sworn
November 12, 2009
Affiant gets P.O.A. search warrant
February 2, 2010
Affiant cross-examined in present proceedings
April 10, 2010
[3] In cross-examination, the affiant was asked to produce the information she swore in February 2010 to obtain a search warrant under the Provincial Offences Act with respect to the same building. The respondent takes the position that the information is not relevant to the present proceedings.
[4] I agree with the respondent. The validity of the initial inspection and the subsequent orders does not depend on anything that was done in February of 2010. Nor is the inspector’s credibility relevant. There is no dispute that the inspection took place without the building owner’s permission, and that work was done, and continued to be done, without a permit. The issues are entirely legal. Was the inspection authorized by statute, and does the statute apply to the building and the work in question?
[5] I am told that the applicant is now facing charges under the Building Code Act, which are outstanding in the provincial offences court. He may ask for production of the information to obtain the search warrant in that proceeding. That question will be dealt with by the provincial offences court. Whether he has the document or not, he has no right to cross-examine on it in the proceedings before the Divisional Court, because it is not relevant.
[6] The applicant also moved for disclosure of the name of the person who complained to the City about the building. He abandoned this point, reserving it to the provincial offences proceeding.
[7] The motion is dismissed. The applicant terminated the cross-examination. He is not entitled to renew it. I make the following directions:
a. This application will be heard at the next sittings of the Divisional Court in Hamilton, the week of November 15, 2010;
b. This direction is made without prejudice to the right of either party to move for a hearing in the Superior Court under s.6 of the Judicial Review Procedure Act;
c. No further cross-examinations of Christine Hey will take place;
d. For greater certainty, the orders in question are not stayed unless and until the Divisional Court orders otherwise.
J.A. Ramsay J.
Date: 2010-06-10