CITATION: Elbasiouni v. City of Brampton, 2015 ONSC 1801
DIVISIONAL COURT FILE NO.: DC-13-125
DATE: 2015-03-19
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, HAMBLY and D.L. CORBETT, J.J.
BETWEEN:
AHMED ELBASIOUNI
Appellant
– and –
THE CORPORATION OF THE CITY OF BRAMPTON
Respondent
P. Baxi, for the Appellant
C. Painter, for the Respondent
HEARD: March 16, 2015
ENDORSEMENT
D.L. Corbett J.
[1] The Appellant argues that Justice Barnes erred in three ways:
By precluding an appeal to the OMB from the Committee of Adjustment;
By concluding that the revocation of the building permit is mandatory rather than discretionary; and
By failing to grant equitable relief on the basis of promissory estoppel.
[2] We see no merit in the first ground of appeal. The right to appeal to the OMB is provided in the Planning Act. Justice Barnes had no jurisdiction to adumbrate these appeal rights and he did not do so. If the schedule directed by Justice Barnes required modification because of an appeal to the OMB, then that could be addressed when that requirement arose.
[3] Justice Barnes held that the Chief Building Officer had to revoke the building permit because it did not comply with the Building Code Act. The appellant argues that this decision was discretionary, not mandatory, and the Chief Building Officer erred in failing to exercise his discretion, or alternatively, that he erred in his exercise of discretion by considering improper factors (public opinion), and failing to consider relevant factors (detrimental reliance and the consequences of the non-compliance of the building permit with the Building Code Act.)
[4] We do not accept this argument. Subsection 8(10) provides that the Chief Building Officer “may” revoke a permit issued under this Act:
(a) if it was issued on mistaken, false or incorrect information;
(b) if, after six months after its issuance, the construction or demolition in respect of which it was issued has not, in the opinion of the Chief Building Official, been seriously commenced;
(c) if the construction or demolition of the building is, in the opinion of the Chief Building Official, substantially suspended or discontinued for a period of more than one year;
(d) if it was issued in error;
(e) if the holder requests in writing that it be revoked, or
(f) if a term of the agreement under clause (3)(c) has not been complied with.
[5] As maybe seen from this list, many different circumstances could give the Chief Building Official a lawful basis to revoke the building permit. Most would not involve breaches of the Building Code Act. Indeed, under clause 8(10)(d), a permit could be issued “in error” but not on an unlawful basis. We see no error in the conclusion of Justice Barnes that where the “error” is non-compliance with the Building Code Act, the Chief Building Officer cannot allow the construction to proceed. This is the clear effect of s. 11 of the Building Code Act.
[6] Finally, in respect to the third point, as Justice Swinton states in Roman Catholic Episcopal Corp. of the Diocese of Peterborough v. Town of Cobourg, [May 7, 1998, Ontario Court (General Division)]:
The Chief Building Official had neither the authority, nor the legal competence, to determine whether the doctrine of estoppel or waiver should apply.
[7] Sitting on appeal from the Chief Building Officer’s decision, Justice Barnes was restricted to doing what the Chief Building Officer could have done, which did not include applying the doctrine of promissory estoppel to grant the appellant the relief he is seeking. Therefore, it cannot be said that Justice Barnes erred when he failed to grant this relief.
[8] We would dismiss the appeal. We would extend the time stipulated by Justice Barnes for 12 months from today’s date and remit the matter back before Justice Barnes or such other Superior Court of Justice judge who is maybe designated by the Regional Senior Justice in the Central West Region to supervise the steps necessary to bring this matter to a conclusion. Discretion is given to Barnes J. and to any supervising judge designated hereunder by the Regional Senior Judge to further extend the 12 month deadline.
Sachs J.
[9] For reasons given orally by Corbett J., the appeal is dismissed. The time stipulated by Barnes J. for the conditional stay is extended for 12 months from today’s date and the matter is remitted to Barnes J. or such other Superior Court of Ontario judge as may be designated by the Regional Senior Justice to supervise the steps necessary to bring this matter to a conclusion.
Sachs J.
Hambly J.
D.L. Corbett J.
Released: March 19, 2015
CITATION: Elbasiouni v. City of Brampton, 2015 ONSC 1801
DIVISIONAL COURT FILE NO.: DC-13-125
DATE: 2015-03-19
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, HAMBLY and CORBETT, J.J.
BETWEEN:
AHMED ELBASIOUNI
-and-
THE CORPORATION OF THE CITY OF BRAMPTON
ENDORSEMENT
Released: March 19, 2015