CITATION: Gordon v. North Grenville (Municipality), 2011 ONSC 2222

DIVISIONAL COURT FILE NO.: 11-DV-1704

DATE: 20110408

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISONAL COURT

B E T W E E N:

FRANK GORDON

- and-

MUNICIPALITY OF NORTH GRENVILLE and R.E Wilkinson, Chief Building Inspector

Paull N. Leamen, for the appellant

William R. Hunter, for the respondents

HEARD: March 8, 2011

APPEAL DECISION

JUSTICE L.RATUSHNY

[1] The issue on this appeal is whether the respondents had the authority to immediately prohibit the use or occupancy of a building they had just determined was unsafe.

1. Background

[2] Since 2005 the appellant has operated a residential care facility, The Olde Mill Guest Home in Oxford Mills, Ontario (the “Care Facility”), providing twenty-two post psychiatric patients, most with a diagnosis of schizophrenia, with long-term care. The Care Facility was a licensed facility under the Homes for Special Care Act, R.S.O. 1990, c. H. 12.

[3] On December 20, 2010, the respondent Chief Building Inspector, R.E. Wilkinson, (the “CBO”) carried out an inspection of the Care Facility and on December 21, 2010 at 11:00 p.m., an unannounced fire drill. The CBO determined the fire drill was a failure and there were numerous serious building deficiencies endangering the safety of the residents.

[4] On December 22, 2010, the CBO issued two orders (the “Orders”) under the Building Code Act, 1992, S.O. 1992, c. 23 (the “Building Code Act”). The first of the Orders was made under s. 15.9(4) of the Building Code Act and declared the Care Facility to be unsafe within the meaning of s. 15.9(2) and ordered remedial steps to be taken. No time was given for the remedial steps to be carried out. The second of the Orders, also dated December 22, 2010, was made under s. 15.9(6) of the Building Code Act and prohibited the use or occupancy of any part of the Care Facility until approval was given by the CBO.

[5] The result of the Orders was that the twenty residents of the Care Facility had to be immediately evacuated and relocated; the appellant lost the Care Facility as a source of income and his insurance for it has been cancelled.

[6] The appellant appeals the Orders under s. 25 of the Building Code Act and asks that they be rescinded.

2. Applicable Sections of the Building Code Act

[7] The CBO issued the Orders under s. 15.9 of the Building Code Act,

Inspection of unsafe buildings

15.9 (1) An inspector may enter upon land and into buildings at any reasonable time without a warrant for the purpose of inspecting a building to determine,

(a) whether the building is unsafe; or

(b) whether an order made under subsection (4) has been complied with.

Interpretation

(2) A building is unsafe if the building is,

(a) structurally inadequate or faulty for the purpose for which it is used; or

(b) in a condition that could be hazardous to the health or safety of persons in the normal use of the building, persons outside the building or persons whose access to the building has not been reasonably prevented.

Order

(4) An inspector who finds that a building is unsafe may make an order setting out the reasons why the building is unsafe and the remedial steps necessary to render the building safe and may require the order to be carried out within the time specified in the order.

Order respecting occupancy

(6) If an order of an inspector under subsection (4) is not complied with within the time specified in it, or where no time is specified, within a reasonable time, the chief building official,

(a) may by order prohibit the use or occupancy of the building; and

(b) may cause the building to be renovated, repaired or demolished to remove

the unsafe condition or take such other action as he or she considers necessary for the protection of the public.

[8] Also available to the CBO was s. 15.10 of the Building Code Act,

Emergency order where immediate danger

15.10 (1) If upon inspection of a building an inspector is satisfied that the building poses an immediate danger to the health or safety of any person, the chief building official may make an order containing particulars of the dangerous conditions and requiring remedial repairs or other work to be carried out immediately to terminate the danger.

Emergency powers

(3) After making an order under subsection (1), the chief building official may, either before or after the order is served, take any measures necessary to terminate the danger and, for this purpose, the chief building official, an inspector and their agents may at any time enter upon the land and into the building in respect of which the order was made without a warrant.

Application to court

(7) As soon as practicable after subsections (5) [service of order] (6) [service of statement] have been complied with, the chief building official shall apply to the Superior Court of Justice for an order confirming the order made under subsection (1) and the court shall hold a hearing for that purpose.

Powers of court

(8) In disposing of an application under subsection (7), the court shall,

(a) confirm, modify or rescind the order; and

(b) determine whether the amount spent on measure to terminate the danger may be recovered in whole, in part or not at all.

[9] This appeal is pursuant to s. 25 of the Building Code Act,

Appeal to court

25. (1) A person who considers themself aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under this Act…may appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made.

Powers of judge

(4) On an appeal, a judge may affirm or rescind the order or decision and take any other action that the judge considers the chief building official, registered code agency or inspector ought to take in accordance with this Act and the regulations and, for those purposes, the judge may substitute his or her opinion for that of the official, agency or inspector.

3. Circumstances Leading to the Orders Being Made

[10] The appellant has operated the Care Facility since 2005 pursuant to an annual residential home licence issued by the Ministry of Health and Long Term Care under the Homes for Special Care Act. Each of the appellant’s licences has been renewed after annual fire safety inspections. Nothing had changed in 2010. The appellant made no requests for any changes to the building. He was in good standing with all regulatory authorities.

[11] The appellant’s 2010 provincial licence was set to expire on December 31, 2010. As part of the annual licence renewal process for 2011, a Fire Safety Inspector and Fire Prevention Officer (“FPO Greenberg”) conducted a fire safety inspection on November 17, 2010. On December 15, 2010, FPO Greenberg issued a fire safety inspection report (the “FPO Report”) identifying five violations that were to be reviewed by her on a return inspection scheduled for January 12, 2011. That return inspection did not occur because of the Orders.

[12] The appellant says these violations referred to in the FPO Report were minor violations that were in the process of being corrected prior to FPO Greenberg’s inspection on January 12, 2011. There had been no significant changes, he says, to the Care Facility since 1999, notwithstanding that its previous owner had taken out a construction permit in 1999 to repair, as it states on its face, “deficiencies per fire safety inspection report issued May 12, 1999.”

[13] FPO Greenberg said she discovered, however, subsequent to her fire safety inspection of November 17, 2010, that there had been no follow up to the construction permit taken out by a previous owner in 1999. She said that was the reason for the December 20, 2010 inspection involving her and the CBO, as well as for the unannounced fire drill on December 21, 2010.

[14] The CBO stated that after inspecting the Care Facility and noting the many deficiencies, his fear was that if a fire were to occur, any rescue operation would become one of recovery rather than evacuation. After consultation with FPO Greenberg, he decided a fire drill should be scheduled to see if the residents could be safely evacuated. It was commenced, unannounced, at 11:00 p.m. on December 21, 2010. There were nine fire fighters, FPO Greenberg and the CBO present. The fire drill, the CBO said, was a failure.

[15] As a result of the numerous violations under the Building Code, being Ontario Regulation 350/06 under the Building Code Act (the “Building Code”) and the failure of the fire drill, the CBO said he was of the opinion he should issue an order right away prohibiting the use or occupancy of the Care Facility in order to protect its residents.

[16] On December 22, 2010, without consulting FPO Greenberg, he issued the Orders declaring that the Care Facility was unsafe and requiring its immediate evacuation.

[17] The Orders list forty alleged deficiencies relating to fire safety concerns. The appellant says all of these alleged deficiencies are requirements that apply only to new buildings or buildings that are to be renovated and they do not apply to existing buildings such as the Care Facility. He points out that FPO Greenberg, who had primary responsibility for fire safety concerns and inspection orders under the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, had not identified any of the forty alleged deficiencies as a result of her last inspection or in the FPO Report. He says that if the alleged deficiencies were a legitimate concern, the Fire Protection and Prevention Act, 1997 contains plenty of authority for its officials to take action.

[18] Subsequent to the Orders being made, the appellant has attempted to deal with the alleged deficiencies by retaining an architect to correspond with the respondents and also, by writing to the mayor of the respondent Municipality of North Grenville. No responses have been received.

4. The Positions of the Parties

[19] The appellant says the respondents, to justify their actions, are now relying on a building permit application made almost twelve years earlier by a prior owner that the CBO had ignored for ten years, since January 23, 2001. The appellant says the Orders are not only invalid; they are unnecessary and that what has occurred in the context of the circumstances summarized above is a concocted fire safety concern and a total abuse by the CBO of his authority.

[20] The appellant submits the CBO had no jurisdiction to make the Orders under s. 15.9 of the Building Code Act because even though the first of the Orders declared the Care Facility unsafe and listed remedial steps to be taken, the appellant was given no time to complete those remedial steps before the second of the Orders prohibiting use of the Care Facility was made. The appellant relies on ss. 15.9 (4) and (6) of the Building Code Act as requiring the CBO to have given him some period of time for remediation and particularly so, in all of the circumstances of the alleged unsafe conditions listed by the CBO in the first of the Orders that had not been previously identified in the FPO Report. The appellant says the respondents have no authority under s. 15.9 to order that a building be immediately vacated.

[21] The appellant contrasts ss. 15.9 and 15.10 of the Building Code Act and points to their differences as support for his position that in all of the circumstances relevant to the safety of the Care Facility’s residents, there was no immediate danger and the CBO was statutorily required under s. 15.9 to give him time to take remedial steps.

[22] Section 15.10 deals with the situation of a building that upon an inspection is determined to pose an immediate danger to the health or safety of any person. In that immediate danger situation the CBO is able to require immediate remedial repairs or other work to be carried out immediately (s. 15.10(1)), in addition to being able to take “any measures necessary” (s. 15.10(3)), however he must then apply to this Court for an order confirming his repair order.

[23] The appellant says that by proceeding under s. 15.9 instead of under s. 15.10, the CBO was not declaring the Care Facility to be an immediate danger under s. 15.10 and there was no reason for the CBO to deny him his right to have time to remediate as required by s. 15.9(4). The appellant submits the CBO chose not to proceed under s. 15.10 where a confirmatory court order would have been required and instead, under the guise of the Care Facility posing an immediate danger to its residents’ safety, he proceeded under s. 15.9 and wrongfully gave the appellant no time to remediate.

[24] The respondents submit the Orders were issued in accordance with the Building Code Act and that in the circumstances of declaring the Care Facility to be unsafe, the CBO was acting reasonably under s. 15.9 when he allowed no time for remediation and required an immediate evacuation of the Care Facility.

5. Analysis

[25] I accept that the proper characterization of the issue on this appeal is a narrow one, whether the CBO had authority under the Building Code Act to make the Orders.

[26] In my view, the issue is not whether the Care Facility was or was not an unsafe building under s. 15.9(2) of the Building Code Act at the time the Orders were made or, whether the alleged deficiencies apply to existing buildings such as the Care Facility or, therefore, whether in respect of these mainly factual decisions the CBO acted reasonably when he made the Orders.

[27] Neither is the issue on this appeal, as the appellant has also alleged, whether the CBO usurped the jurisdiction of FPO Greenberg under the Fire Protection and Prevention Act, 1997 in making the Orders alleging deficiencies, all of which relate to fire safety.

[28] The appellant also submits that the CBO had no authority to take over the role of building inspector under ss. 15.9 (1), (2) and (4) of the Building Code Act. The Building Code Act defines “inspector” and then “chief building official” differently in its s. 1 and also makes a distinction between the two positions in s. 15.9(6) when it states that where an order of an inspector under s. 15.9(4) has not been complied with, the chief building official may then take action and prohibit use or occupancy or “take such other action as he or she considers necessary for the protection of the public.” The respondents rely on s. 22 of the Building Code Act entitled “Dispute Resolution, Reviews and Appeals” and s. 22(2) that states, “A chief building official may exercise any of the powers or perform any of the duties of an inspector.” Based on this subsection, the respondents argue that the two positions are interchangeable. The appellant replies that in the context of the entire Building Code Act, the interchangeability of the positions as reflected in s. 22(2) is limited to dispute resolution matters, reviews and appeals.

[29] While the appellant’s interpretation appears to me to be correct regarding the limited scope of s. 22, I have determined that this is not the principal issue on this appeal and I decline to determine this point. I note that the CBO is referred to as the “Chief Building Inspector” and also the “Chief Building Official.” He has stated in his cross-examination that he also holds the positions of assistant to the Fire Marshall; he has been a Building Official since 2000 with the respondent Municipality; he was the Deputy Chief Building Official up until about April 2010 when he was appointed as the Chief Building Official and he also carries out the role of a Building Inspector in his day-to-day functions as the Chief Building Official. There is insufficient evidence and argument before me to allow me to determine whether this wearing of many hats is authorized under the Building Code Act.

[30] Instead, I have restricted the issue on this appeal to whether the Orders were made in accordance with the Building Code Act when they required immediate evacuation of the Care Facility that the CBO had determined to be unsafe. It is the denial of any time for remedial steps to be taken by the appellant that I consider as the focal issue.

[31] The issue of jurisdiction is a question of law so that the standard of review on this appeal is the stricter standard of correctness, namely, whether the decision of the CBO to order an immediate evacuation of the Care Facility under s. 15.9 of the Building Code Act was correct. The applicant has the burden to prove on a balance of probabilities that this decision of the CBO was wrong in law: Shaw v. Dorion (Municipality), 2007 CarswellOnt 6030 (S.C.J.), at para. 10, citing with approval Runnymede Development Corp. v. 1201262 Ontario Inc. (2000), 47 O.R. 374 (S.C.J.).

[32] I have concluded that the decision of the CBO to require immediate evacuation of the Care Facility was incorrect in law.

[33] There does not appear to be any reported case law addressing this particular point.

[34] When the question is one of statutory interpretation, the Supreme Court of Canada has endorsed Driedger’s Modern Principle as the starting point, commenting that statutory interpretation cannot be founded on the wording of the legislation alone:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21)

[35] Iacobucci J., writing for the Court in Rizzo, went on to say,

I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act “shall be deemed to be remedial” and directs every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”. (Rizzo, at para. 22)

[36] The appellant submits that the Building Code Act and the Building Code is carefully crafted legislation balancing the interests of society with the interests of a property owner, with specific responsibility given to designated officials such as the CBO, an inspector and others. I agree with this broad statement and add that the societal interest promoted by this legislation is directed towards public safety by ensuring buildings adhere to approved standards and guidelines.

[37] I also agree that public safety is not the only goal of the Building Code Act and the Building Code. The Interpretation Act provides that every Act shall be deemed “remedial” and be given a broad interpretation. If public safety were the only objective of the Building Code Act, there would be no need, for example, to set out limiting powers for inspectors and chief building officials. Instead, the Legislature could have simply vested chief building officials with all-encompassing powers to undertake any measures necessary in the circumstances. However, this it did not do. When this legislation is viewed as a whole, in my view, it indicates that the Legislature intended to promote public safety but aimed to do so in a manner that balanced the rights of all parties involved, especially those of property owners. The interpretation given to s. 15.9 of the Building Code Act, therefore, must reflect the balance the Legislature sought to achieve between the various interests affected by this legislation.

[38] The respondents have submitted that the phrase “reasonable time” in s. 15.9(6) can include circumstances where a CBO feels it necessary on public safety grounds to grant a property owner no time to remedy the noted deficiencies. However, according to the plain meaning of the provisions for unsafe buildings in ss. 15.9 and 15.10 of the Building Code Act, I conclude that this interpretation would inaccurately reflect the intention of the Legislature and particularly so when the difference between these two sections are considered.

[39] Section 15.9 refers to an opportunity to take remedial steps that I interpret as amounting to the injection of a right for the property owner to “answer” the allegations. On that basis, I cannot interpret “within a reasonable time” in s. 15.9 to refer to anything other than some positive amount of time for that owner.

[40] Further, even in the situation of a building posing an immediate danger to safety, s. 15.10 allows for some remediation, even if “immediate”, as well as allowing the CBO to take “any measures necessary” which measures could, presumably, include an immediate evacuation order. However, the CBO chose not to proceed under s. 15.10. If the interpretation urged by the respondents were correct so that s. 15.9 could also allow for an immediate evacuation order, there would be little reason to have s. 15.10 in the Building Code Act.

[41] This is an issue of notice as well as of an opportunity to remediate and the principles are well reflected in Riopelle v. Montreal (City) (1911), 44 S.C.R. 579 (S.C.C.), at p. 586, a case dealing with a building inspector who had entered onto the appellant’s land after giving a vaguely worded notice in advance and had demolished the owner’s buildings:

As my brother Duff says, ‘this is a case in which form is substance.’ The principle at issue is of the highest importance, affecting the right of property. It would be extremely unwise to establish in this court a precedent which might be invoked by every municipal officer to justify the right to enter upon the property of private citizens and there demolish their buildings on the ground that they are, in his opinion, defectively constructed. The legislature has, in the case of the respondent, thought wise to give the city officials very large powers, it is true, but it has coupled with the exorbitant right conferred a duty to give notice, and that duty must be literally and strictly complied with.

[42] I conclude that s. 15.9 of the Building Code Act is to be interpreted as follows. Where an order has been made by an inspector “setting out the reasons why a building has been determined to be unsafe and the remedial steps necessary to render the building safe” (subsection (4)), non-compliance with that order “within the time specified in it, or where no time is specified, within a reasonable time” (subsection (6)), is a condition precedent to the making of an order by a chief building official under s. 15.9(6) prohibiting use or occupancy.

[43] In other words, before an order can be made prohibiting use or occupancy of a building found to be unsafe, there first has to have been an order setting out remedial steps necessary to render the building safe, then an opportunity to take those remedial steps and a failure to take the remedial steps as ordered.

[44] Even if it could be said that the CBO had jurisdiction as an inspector under s. 15.9, the appellant was afforded no time to take the remedial steps listed in the first of the Orders before the second of the Orders prohibiting use or occupancy of the Care Facility was made.

[45] As a result, the decision of the CBO to cause an immediate evacuation was without jurisdiction and wrong at law. The respondents had no authority under the Building Code Act to issue the Orders under s. 15.9. As invalid Orders, they cannot be allowed to stand.

[46] The appeal is, therefore, allowed and the Orders are set aside.

[47] Costs are awarded to the appellant. If their quantum is unable to be agreed upon, the parties are able to submit written costs submissions to me (a maximum of three pages for each party exclusive of attachments) before April 29, 2011.

___________________________

Hon. Madam Justice L. Ratushny.

Released: April 8, 2011

CITATION: Gordon v. North Grenville (Municipality), 2011 ONSC 2222

DIVISIONAL COURT FILE NO.: 11-DV-1704

DATE: 20110408

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

FRANK GORDON

- and -

MUNICIPALITY OF NORTH GRENVILLE and R.E Wilkinson, Chief Building Inspector

APPEAL DECISION

Ratushny J.

Released: April 8, 2011