CITATION: Toronto (City) v. Tseng, 2017 ONSC 3219
DIVISIONAL COURT FILE NO.: 460/15
DATE: 20170524
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
NORDHEIMER, SMITH and WILTON-SIEGEL JJ.
BETWEEN:
CITY OF TORONTO and ANN BOROOAH, CHIEF BUILDING OFFICIAL for the CITY OF TORONTO
Applicants (Respondents in Appeal)
– and –
PAULINE TSENG, SHIH DRUM TSENG, AND YANG FENG TSENG
Respondents
(Appellants in Appeal)
Kirsten Franz, for the Respondent in Appeal, City of Toronto
Christopher J. Henderson, for the Respondent in Appeal, Ann Borooah
Pauline Tseng, acting in person, and on behalf of Shih Drum Tseng and Yang Feng Tseng
HEARD at Toronto: May 24, 2017
NORDHEIMER J. (orally)
[1] The appellants, who are father, mother and daughter, own a house located at 38 Brunswick Avenue in Toronto. In 2006, an addition was built at the rear of the house, without a building permit, and in violation of the zoning by-law regarding size and setbacks.
[2] After six years of litigation, Pauline Tseng finally consented to a Court Order requiring her to obtain a building permit, failing which the City could demolish the addition at her expense. A building permit was issued in 2013. Since that time, the City has been attempting to fulfill its obligations under the Building Code Act, 1992, S.O. 1992, c. 23 (the "Building Code") to conduct inspections of the addition.
[3] The City brought an application pursuant to s. 38 of the Building Code seeking an Order authorizing it to inspect the addition, among other relief. Stinson J. granted the application and ordered that the City be authorized to inspect the addition: Toronto (City) v. Tseng, [2015] O.J. No. 4175 (S.C.J.). In doing so, he rejected the appellants’ argument, among others, that the inspection of the addition would violate the s. 7 Charter rights of Pauline Tseng’s parents.
[4] On this appeal, the appellants principally renew their s. 7 Charter argument. In order to demonstrate a violation of s. 7 of the Charter, a claimant must first show that the government action in question interferes with, or deprives them of their life, liberty or security of the person. Once they have established that s. 7 is engaged, they must then show that the deprivation in question is not in accordance with the principles of fundamental justice: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 at para. 55.
[5] On an appeal from a decision of a Judge, the standard of review is correctness on questions of law, and ‘palpable and overriding error’ on findings of fact: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[6] The motion judge dealt with the s. 7 argument at paras. 37 & 38 of his reasons. He said:
The submission of the Owner is that Mr. and Mrs. Tseng, senior, are in frail health and to allow the City to carry out an inspection may further imperil their health. They submit that an inspection by the City may put their lives at risk. They argue that to allow the City to inspect would thus violate their s. 7 Charter rights.
I do not accept this submission. What the City is attempting to do is discharge its statutory obligation to inspect the construction to ensure it has been carried out in a proper fashion. If anything, the City is attempting to see to the security of the respondents, as occupants of the building: The City's goal is to ensure the premises occupied by the respondents are safe. There is no reason why the City's actions in conducting the inspection would be carried out in a fashion that would endanger the lives of the respondents.
[7] In my view, the application judge was entirely correct in his conclusions on this issue. There is no substance to the assertion that permitting the City to inspect the addition will endanger the lives of the appellant parents. The Inspectors do not need to have any contact with the appellant parents and, if the mere presence of the Inspectors is going to disturb them, the appellant parents can briefly vacate the premises at the time of the inspection. The only thing that would interfere with that obvious solution to the concern is if the history of the appellants’ lack of co-operation with the City continues.
[8] When one strips away the exaggerated language in which the appellants assert a violation of their Charter rights, it becomes apparent that the assertion of a Charter violation is completely devoid of merit.
[9] Further, even if some violation of their Charter rights could be found, the appellants cannot establish that the violation is not in accordance with the principles of fundamental justice. A person cannot violate the law on the one hand and then, when remedial action needs to be taken as a direct result of the illegal acts, claim that the remedial action violates their rights. If that were the case, in a situation like this, the City could effectively be prohibited from acting to ensure the safety of the public arising from illegal building activities. The suggestion that the City is, in some fashion, acting unfairly towards the appellants finds no foundation in the evidence. The City has a public duty under the Building Code. While the order in question may have some limited effect on the appellant parents, that impact has to be balanced against the need to enforce that public duty.
[10] The appellants' submissions that the order in question somehow affects their presumption of innocence under the Charter or that the order in question is arbitrary and a breach of natural justice also find no foundation in this record.
[11] Finally, the appellants sought to adduce fresh evidence in this appeal. The evidence in question does not satisfy the requirements for fresh evidence, particularly the due diligence requirement. In any event, even if admitted, the fresh evidence would not affect the result.
[12] The appeal is dismissed.
[13] I have endorsed the Appeal Book and Compendium of Appellants in Appeal as follows: “This appeal is dismissed for oral reasons given. Costs payable by the appellants to the respondent fixed in the amount of $10,000.00 all inclusive.”
___________________________ NORDHEIMER J.
I agree
SMITH J.
I agree
WILTON-SIEGEL J.
Date of Reasons for Judgment: May 24, 2017
Date of Release: May 25, 2017
CITATION: Toronto (City) v. Tseng, 2017 ONSC 3219
DIVISIONAL COURT FILE NO.: 460/15
DATE: 20170524
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
NORDHEIMER, SMITH and WILTON-SIEGEL JJ.
BETWEEN:
CITY OF TORONTO and ANN BOROOAH, CHIEF BUILDING OFFICIAL for the CITY OF TORONTO
Applicants (Respondents in Appeal)
– and –
PAULINE TSENG, SHIH DRUM TSENG, AND YANG FENG TSENG
Respondents
(Appellants in Appeal)
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: May 24, 2017
Date of Release: May 25, 2017