Court File and Parties

Citation: City of Toronto v. Lambrinos, 2016 ONSC 7057 Divisional Court File No.: 451/16 Date: 2016-11-15 Superior Court of Justice - Ontario (Divisional Court)

Re: City of Toronto v. Lambrinos

Before: Justice Swinton

Counsel: Kitto Lau, for the Applicants/Respondents on motion Lawrence A. Pick, for the Respondents/Moving Parties

Heard at Toronto: November 14, 2016

Endorsement

Swinton J.

[1] The moving parties, Nikolas Lambrinos and 1187310 Ontario Limited, seek an extension of time to file a notice of appeal from the judgment of Akhtar J. dated July 14, 2016, in which he granted the City of Toronto’s application pursuant to s. 38 of the Building Code Act, 1992 and ordered the removal of construction completed without building permits at two residential properties.

[2] The moving parties have met three parts of the test for the granting of an extension (Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at paras. 15-16). First, ,I am satisfied that they formed an intention to appeal in the appeal period, given that their Notice of Appeal was faxed on the last day of the appeal period, although not before 4:00 PM, as required by the rules. Accordingly, it was out of time. Second, I am satisfied that there is an explanation for the short delay – a mistake by a staff member employed by the moving parties’ lawyers. Third, the City will not suffer prejudice because of the delay.

[3] The real issues are whether the appeal has some merit, and whether the justice of the case requires the granting of the extension. The ground of appeal in the initial draft Notice of Appeal was the lack of jurisdiction of the application judge, given a consent order entered into by the parties on June 19, 2015. After the City filed responding material for the present motion, the moving parties amended the draft Notice of Appeal to add new grounds, alleging that the City acted improperly in proceeding before the application judge, given the consent order, and that the City failed to inform the application judge of events that occurred following the consent order.

[4] I note that there is no allegation of any error on the part of the application judge in the grounds of appeal. He found that the moving parties had committed numerous violations of the Building Code in its construction on two properties in the Kensington market area. They had also violated zoning by-laws by converting the two buildings into multi-residential use when each property was zoned for a single unit, semi-detached house.

[5] I see no merit to the proposed appeal. First, it is clear that the application judge had jurisdiction to hear and determine the application, because the consent order was not a final order disposing of the application. On its face, the June 2015 consent order appears to be an interlocutory order. It set in place certain steps for the parties to take in order to try to address the problems with the properties, but it did not address the actual Building Code violations. As well, the application judge endorsed the record to state that the application was adjourned sine die, and he indicated the parties would be returning before him in mid-September. Again, this indicates that the order was interlocutory. Finally, when the application was brought back before him in 2016, the moving parties did not argue that he had no jurisdiction.

[6] With respect to the new grounds of appeal, again, there is no merit. The issue before the application judge was the lack of compliance of the moving parties with the Building Code and the zoning by-laws. The efforts of the parties to implement the consent order were not a relevant consideration in determining the merits of the application. In any event, again, there is no indication that the application judge was asked to consider this information by the moving parties. Nothing in their affidavit material filed for the hearing raised this issue.

[7] This is not a case where the justice of the case weighs in favour of the granting of an extension, given the lack of merit to the appeal.

[8] Accordingly, the motion to extend time is dismissed. Costs to the City are fixed at $3,000.00 payable jointly and severally by the moving parties.

Swinton J.

Date: November 15, 2016