Conte v. County of Brant, 2016 ONSC 6281

CITATION: Conte v. County of Brant, 2016 ONSC 6281

DIVISIONAL COURT FILE NO.: DC-15-669

DATE: 20161018

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DAMBROT, H. SACHS and SHEARD JJ.

B E T W E E N:

RAFFAELE CONTE and DEBORAH CONTE

Appellants

• and -

COUNTY OF BRANT

Respondent

Raffaele Conte, Appellant in Person

Z. Levy, for the Respondent

HEARD: at Hamilton October 5, 2016

SACHS J.: (Orally)

1Raffaele Nicole Conte and Deborah Elizabeth Conte (the “Appellants”) appeal from the Order of Whitten J., dated August 4th, 2015, dismissing the Appellants’ appeal from the Order of Andre Gravelle, the Chief Building Official of the County of Brant, dated March 9th, 2015 (“the Gravelle Order”).

2The Gravelle Order prohibited occupancy of the house at 85 Blossom Avenue, Brantford, Ontario and directed that the house and the accessory building (the “House” and “Shed”) be demolished and the area graded and cleaned up no later than March 30th, 2015. The Appellants’ appeal was brought under s. 25(1) of the Building Code Act, 1992 S.O., C.23 (the “BCA”).

3Whitten J. dismissed the appeal and awarded costs against the Appellants in the amount of $6,000, inclusive of disbursements. He also ordered the Appellants to remove all structures on the property by August 31st, 2015. An appeal from the Whitten Order lies as of right to this Court under s. 26(1) of the BCA. However, pursuant to s. 26(3) of the BCA, an appeal only lies on “any question that is not a question of fact alone.”

Background

4The House is an 1,100-square-foot single family home situated on a four-acre parcel of land located on the floodplains of the Grand River in Brantford, Ontario (collectively, the “Property”). The Property slopes toward the Grand River. It is regulated by the Grand River Conservation Authority (“GRCA”) under O. Reg 150/06: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses.

5The GRCA designated the Property as “high risk for slope failures”, located within a “riverine erosion hazard”. As a result, any development requires a permit from the GRCA.

6The Property was originally owned by the Canada Mortgage and Housing Corporation (“CMHC”). On November 26, 2012, CMHC obtained an engineering report from LVM. The LVM report stated that a slope failure had occurred behind the house, and that there was a “moderate potential” for instability. LVM expressed the belief that ongoing failure of the slope would occur. In the opinion of LVM, the House and Shed were unsafe and there would not be enough buildable area at the top of the slope for its redevelopment.

7The Property was listed for sale in the spring of 2013. On May 28th, 2013, Gravelle issued an “Order to Remedy” to CMHC, ordering it to demolish the House and Shed by July 31st, 2013 (the “Order to Demolish”). The reason given for the Order to Demolish was that the House and Shed were neglected and in an unsafe and unusable condition. Also, the LVM engineering report showed a possible slope failure would occur that would cause the House and Shed to collapse or slide down the embankment of the Grand River.

8The Appellants were aware of the Order to Demolish when they bought the Property on May 28th, 2013. On that date, the Appellants emailed Gravelle asking when the Order to Demolish had been issued as they understood that the owner had 60 days from the date of its issue to complete the work. In the Appellants’ email, they confirmed that the closing date for their purchase of the Property was June 19th, 2013. They asked for the soil test reports so they could have as much information as possible before the closing date.

9Gravelle told the Appellants that no one would be allowed to live in the House or Shed, which would have to be demolished. He also explained that no one would be permitted to build a new house or structure. Despite that information, the Appellants completed the purchase of the Property on June 9th, 2013.

10The Property had been initially listed for sale for $160,000 and then for $110,000. The Appellants were able to buy it for $19,900.

11After buying the Property, the Appellants hired their own engineer, Ferro Engineering, to prepare a report, dated July 15th, 2013. The Appellants sent the Ferro report to Gravelle. In its report, Ferro expressed the view that the existing hazards on the Property could be remediated and that the Appellants intended to apply to GRCA to develop the Property. Ferro also asked that the Order to Demolish be removed, on the condition that the Appellants would remedy the existing slope hazards and building safety issues, “as soon as is reasonably feasible”. That request was not granted.

12The Appellants sought and were granted a six-month extension of the Order to Demolish. A further extension was granted to June 1st, 2014 to allow the Appellants to explore solutions that might be acceptable to GRCA and to the County of Brant.

13On June 13th, 2014, a second report was delivered by Ferro Engineering. Among other things, on behalf of the Appellants, Ferro again asked that the Order to Demolish be removed so the House and Shed could be renovated, a new basement dug, an outdoor courtyard area installed, and retaining walls built.

14Gravelle and LVM reviewed the Ferro Engineering report of June 13th, 2014. They concluded that Ferro had provided no information on the underlying stability of the slope and had failed to take soil samples or to provide a slope stability rating. LVM remained of the view that the ongoing failure of the slope would occur. Gravelle accepted that opinion. The Order to Demolish remained in place.

15The Appellants asked for further extensions of the Order to Demolish. On November 14th, 2014, Gravelle issued an order requiring the Appellants to obtain a report from a qualified soil engineer with respect to the slope’s stability. A further extension of time was granted to allow the Appellants to obtain the requisite engineering reports. On January 19th, 2015, the Appellants provided Gravelle with a third report from Ferro Engineering.

16The Appellants did not provide a slope stability report from a qualified structural engineer. The Appellants failed to comply with the terms of the November 14th, 2014 order and on March 9th, 2015, the Gravelle Order was issued. On April 2nd, 2015, the Appellants appealed the Gravelle Order.

The Whitten Order

17The Appellants’ appeal of the Gravelle Order was heard by Whitten J. on August 4th, 2015. Whitten J. found that there was no reason to doubt the correctness or reasonableness of the Gravelle Order and dismissed the appeal.

18In his endorsement, Whitten J. stated that an appeal from the Gravelle Order under s. 25(1) of the BCA permits an appeal if an individual considers himself or herself aggrieved by an order of the Chief Building Official. He noted that the evidentiary burden is upon the appellant to establish either that the official’s order was unreasonable or, alternatively, that it was contrary to the law. The Appellants did not allege that the Gravelle Order was contrary to law. As a result, the only issue before Whitten J. was whether the Gravelle Order was unreasonable.

19Whitten J. found that:

i) the Gravelle Order was based upon the LVM report, which opined “that there would not be enough buildable area at the top of the slope for redevelopment”;

ii) the Appellants were aware of the Order to Demolish when they bought the Property (that evidence was contained in the transcript of Mr. Conte’s cross-examination at pages 35, 36 and 37);

iii) none of the Ferro Engineering reports included a report on soil testing as required by Gravelle;

iv) the Appellants did not provide a report from a structural engineer as to the “survivability of the existing structure”; and,

v) the Appellants have never obtained or provided an “countervailing expert opinion to the LVM report”.

Appellants’ Request to Call Oral Evidence

20At the commencement of the appeal before us, the Appellant indicated that he had a number of witnesses (including experts) that he wished to call to testify before us orally. We denied his request. We did so for two reasons:

1. This is an appeal not a hearing de novo;

2. If the proposed evidence consisted of an opinion from a soil engineer, aside from the concern with the form of that evidence, it is clear that the proposed evidence would not meet the test for the admission of fresh evidence.

Analysis

21On this appeal, the Appellant argued that the judge below was biased. In doing so, he made several allegations about what occurred in the hearing below that he asserted were omitted from the certified transcript that was filed respecting the hearing below. There was absolutely no credible evidence before us that the transcript put before us of the hearing below was incomplete in any way.

22The Appellant then pointed to a few areas in the transcript of the hearing that he argued supported his assertion of bias. We disagree. What these excerpts demonstrate is that the judge below was familiar with the material before him and the task he had to perform and that he was trying to focus the argument.

23Other than asserting bias, the Appellant essentially attempted to re-argue the factual basis for the decision being challenged. In doing so, he raised no issue of law or mixed fact and law. As pointed out in the beginning of these reasons, an appeal does not lie to this court on a question of fact alone.

Conclusion

24For these reasons, the appeal is dismissed.

DAMBROT J.:

25Appeal dismissed for oral reasons delivered in Court.

26Order to go compelling the Appellants to complete the demolition of the structures on the property within 30 days, failing which, the County may do so even if an application for leave to appeal is pending.

27Costs to the Respondent fixed at $3,000 all-inclusive.