Court File and Parties

DATE: 20160930 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HESHI KUNNREICH c/o 1679676 ONTARIO INC. 1625-1641 KINGSTON ROAD Appellant – and – CITY OF TORONTO Respondent

Counsel: Heshi Kuhnreich, acting in person Lisa Solish, for the Respondent

Heard: September 22, 2016

Before: M. D. FAIETA j.

Reasons for Decision

Introduction

[1] 1679676 Ontario Inc. (“167” or the “Appellant”) owns three apartment buildings located at 1625, 1633 and 1641 Kingston Road, Toronto, Ontario (the “Property”). Heshi Kuhnreich (whose named is misspelled in the title of proceeding) owns 167. Each building has about ten apartments.

[2] On November 30, 2015, Miriam Anania, a Municipal Standards Officer employed by the Respondent, issued an Order to 167 pursuant to section 15.2 of the Building Code Act, 1992, S.O. 1992, c. 23, as amended (the “Act”), following her inspection of the Property on November 24, 2015 (the “Order”).

[3] The Order requires that 167 address the following defects in order to bring the Property into compliance with the standards prescribed by Chapter 629 (Property Standards) of the Toronto Municipal Code (the “Code”) noted below:

ITEM	LOCATION	DEFECT	SECTION
1	Building – 1625	Dwelling unit is not connected by two way voice communication system and security locking release mechanism to the principle [sic] entrance of the building.	29.A.(2)
2	Building – 1625 – 1st Floor – East Side	Lighting in a service hallway is provided at less than 50 lux.	36.B.(1)(j)
3	Building – 1625 – East Side	Entrance/exit door is not kept closed and locked.	29.A.(1)
4	Building – 1625 – Throughout Hallways and Stairways	The lighting fixture is not maintained in a clean condition	36.F.
5	Building – 1625 – West Side – 2nd Floor	Lighting in a service stairway is provided at less than 50 lux.	36.B.(1)(j)
6	Building – 1625 – West Side – Landing between 3 & 2 Floors	Lighting in a service stairway is provided at less than 50 lux.	36.B.(1)(j)
7	Building – 1633	Dwelling unit is not connected by two way voice communication system and security locking release mechanism to the principle [sic] entrance of the building.	29.A.(2)
8	Building – 1633 – East Side	Entrance/exit door is not kept closed and locked.	29.A.(1)
9	Building – 1633 – East Side – 3rd Floor	Lighting in a service hallway is provided at less than 50 lux.	36.B.(1)(j)
10	Building – 1633 – Throughout Hallways & Stairways	The lighting fixture is not maintained in a clean condition.	36.F.
11	Building – 1633 – West Side	Entrance/exit door is not kept closed and locked	29.(A).(1)
12	Building – 1633 – West Side – 2nd Floor	Lighting in a service stairway is provided at less than 50 lux.	36.B.(1)(j)
13	Building – 1633 – West Side – 3rd Floor	Lighting in a service stairway is provided at less than 50 lux.	36.B.(1)(j)
14	Building – 1633 – West Side – Landing between 3 & 2 Floors	Lighting in a service stairway is provided at less than 50 lux.	36.B.(1)(j)
15	Building – 1641	Dwelling unit is not connected by two way voice communication system and security locking release mechanism to the principle [sic] entrance of the building.	29.A.(2)
16	Building – 1641 – Throughout Hallways & Stairways	The lighting fixture is not maintained in a clean condition.	36.F.
17	Building – 1641 – West Side	Entrance/exit door is not kept closed and locked.	29.A.(1)
18	Building – 1641 – West Side – 1st Floor	Lighting in a service hallway is provided at less than 50 lux.	36.B.(1)(j)

[4] 167 appealed the Order to a Property Standards Committee established by the Respondent under the Act. The appeal was heard on February 29, 2016. By letter dated March 1, 2016, the City Clerk notified 167 that the Committee had confirmed the Order.

[5] 167 appealed the Committee’s decision to this Court on March 11, 2016.

[6] Without any objection from the Respondent, I granted leave to Mr. Kuhnreich to represent the Appellant under Rule 15.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. At the hearing of this appeal, Ms. Anania testified on behalf of the Respondent, and Mr. Kuhnreich and Sarah Ashton testified on behalf of the Appellant.

[7] For the reasons described below, I:

1. modify the Order to delete Items 2, 4, 5, 6, 9, 12, 13, 14 and 18 given that the Appellant has complied with these provisions; and
2. confirm the remainder of the Order.

Analysis

[8] The relevant provisions of the Act related to the regulation of property standards are as follows:

Municipal property standards

15.1 (1) In sections 15.1 to 15.8 inclusive,

“committee” means a property standards committee established under section15.6;

“occupant” means any person or persons over the age of 18 years in possession of the property;

“owner” includes,

(a) the person for the time being managing or receiving the rent of the land or premises in connection with which the word is used, whether on the person’s own account or as agent or trustee of any other person, or who would receive the rent if the land and premises were let, and

(b) a lessee or occupant of the property who, under the terms of a lease, is required to repair and maintain the property in accordance with the standards for the maintenance and occupancy of property;

“property” means a building or structure or part of a building or structure, and includes the lands and premises appurtenant thereto and all mobile homes, mobile buildings, mobile structures, outbuildings, fences and erections thereon whether heretofore or hereafter erected, and includes vacant property;

“repair” includes the provision of facilities, the making of additions or alterations or the taking of any other action that may be required to ensure that a property conforms with the standards established in a by-law passed under this section.

Adoption of policy

(2) Where there is no official plan in effect in a municipality, the council of a municipality may, by by-law approved by the Minister, adopt a policy statement containing provisions relating to property conditions.

Standards for maintenance and occupancy

(3) The council of a municipality may pass a by-law to do the following things if an official plan that includes provisions relating to property conditions is in effect in the municipality or if the council of the municipality has adopted a policy statement as mentioned in subsection (2):

1. Prescribing standards for the maintenance and occupancy of property within the municipality or within any defined area or areas and for prohibiting the occupancy or use of such property that does not conform with the standards.

2. Requiring property that does not conform with the standards to be repaired and maintained to conform with the standards or the site to be cleared of all buildings, structures, debris or refuse and left in graded and levelled condition. …

Inspection of property without warrant

15.2 (1) Where a by-law under section 15.1 is in effect, an officer may, upon producing proper identification, enter upon any property at any reasonable time without a warrant for the purpose of inspecting the property to determine,

(a) whether the property conforms with the standards prescribed in the by-law; or

(b) whether an order made under subsection (2) has been complied with.

Contents of order

(2) An officer who finds that a property does not conform with any of the standards prescribed in a by-law passed under section 15.1 may make an order,

(a) stating the municipal address or the legal description of the property;

(b) giving reasonable particulars of the repairs to be made or stating that the site is to be cleared of all buildings, structures, debris or refuse and left in a graded and levelled condition;

(c) indicating the time for complying with the terms and conditions of the order and giving notice that, if the repair or clearance is not carried out within that time, the municipality may carry out the repair or clearance at the owner’s expense; and

(d) indicating the final date for giving notice of appeal from the order.

Service and posting of order

(3) The order shall be served on the owner of the property and such other persons affected by it as the officer determines and a copy of the order may be posted on the property. …

Appeal of order

15.3 (1) An owner or occupant who has been served with an order made under subsection 15.2 (2) and who is not satisfied with the terms or conditions of the order may appeal to the committee by sending a notice of appeal by registered mail to the secretary of the committee within 14 days after being served with the order.

Confirmation of order

(2) An order that is not appealed within the time referred to in subsection (1) shall be deemed to be confirmed.

Duty of committee

(3) The committee shall hear the appeal.

Powers of committee

(3.1) On an appeal, the committee has all the powers and functions of the officer who made the order and the committee may do any of the following things if, in the committee’s opinion, doing so would maintain the general intent and purpose of the by-law and of the official plan or policy statement:

1. Confirm, modify or rescind the order to demolish or repair.

2. Extend the time for complying with the order.

Appeal to court

(4) The municipality in which the property is situate or any owner or occupant or person affected by a decision under subsection (3.1) may appeal to the Superior Court of Justice by notifying the clerk of the municipality in writing and by applying to the court within 14 days after a copy of the decision is sent.

Appointment

(5) The Superior Court of Justice shall appoint, in writing, a time and place for the hearing of the appeal and may direct in the appointment the manner in which and the persons upon whom the appointment is to be served.

Judge’s powers

(6) On the appeal, the judge has the same powers and functions as the committee.

Effect of decisions

(7) An order that is deemed to be confirmed under subsection (2) or that is confirmed or modified by the committee under subsection (3) or a judge under subsection (6), as the case may be, shall be final and binding upon the owner and occupant who shall carry out the repair or demolition within the time and in the manner specified in the order.

Power of municipality if order not complied with

15.4 (1) If an order of an officer under section 15.2 (2) is not complied with in accordance with the order as deemed confirmed or as confirmed or modified by the committee or a judge, the municipality may cause the property to be repaired or demolished accordingly. …

Lien

(4) The municipality shall have a lien on the land for the amount spent on the repair or demolition under subsection (1) and the amount shall have priority lien status as described in section 1 of the Municipal Act, 2001 or section 3 of the City of Toronto Act, 2006, as the case may be.

Certificate of compliance

15.5 (1) An officer who, after inspecting a property, is of the opinion that the property is in compliance with the standards established in a by-law passed under section 15.1 may issue a certificate of compliance to the owner. …

Inspection powers of officer

15.8 (1) For the purposes of an inspection under section 15.2, an officer may,

(a) require the production for inspection of documents or things, including drawings or specifications, that may be relevant to the property or any part thereof;

(b) inspect and remove documents or things relevant to the property or part thereof for the purpose of making copies or extracts;

(c) require information from any person concerning a matter related to a property or part thereof;

(d) be accompanied by a person who has special or expert knowledge in relation to a property or part thereof;

(e) alone or in conjunction with a person possessing special or expert knowledge, make examinations or take tests, samples or photographs necessary for the purposes of the inspection; and

(f) order the owner of the property to take and supply at the owner’s expense such tests and samples as are specified in the order. … [Emphasis added.]

[9] On appeal, this court, under s. 15.3(6) of the Act, has all the powers and functions afforded to a Committee under s. 15.3(3.1) of the Act, which in turn had all the powers and functions afforded to an officer who made the order under section 15.2(2) of the Act. The appeals to the Committee and the Court are “wide-open appeals where the appellate bodies have the same powers as the property standards officers”: see Yorkville North Development Ltd. v. North York, 1988 ONCA 4701, 64 O.R. (2d) 225, [1988] O.J. No. 410 (C.A.), at para. 13. The Court’s decision is “final and binding”: see s. 15.3(7) of the Act. There is no right of appeal to the Ontario Court of Appeal from a judicial decision under s. 15.3 of the Act: see Rowbotham v. Barrie (City), 2004 ONCA 20000.

[10] An appeal hearing before this Court amounts to a hearing de novo as the Court is given the same powers and functions as an Officer and a Committee. Accordingly, on an appeal the Court is not bound by, nor need it defer to, the opinions or findings made by an Officer or a Committee.

[11] Further, given that the appeal hearing before this Court is a de novo hearing, this Court is not reviewing the decision of the Committee but rather comes to its own conclusions, based on the evidence adduced at the hearing of the appeal in light of the relevant provisions of the Act, regarding whether an officer’s Order should be confirmed, modified or rescinded under s. 15.3(6) of the Act. Accordingly, the question of whether the standard of review in respect of the Committee’s decision is correctness [1], correctness and reasonableness, [2] or reasonableness is irrelevant.

Issue #1: Should the Appellant be required to make lighting repairs?

[12] Eleven of the 18 repairs directed by the Officer’s Order relate to improving the illumination of various areas in and around the apartment building on the Property. The concerns relate to: 1) dim hallways and stairways in the building; and 2) failure to maintain lighting fixtures in a clean condition. As described below, these concerns have been largely resolved.

1) Lighting in a hallway or stairway is provided at less than 50 lux

[13] The Officer’s Order has eight requirements related to lighting in a service hallway or service stairway being provided at less than 50 lux. See Items 2, 5, 6, 9, 12, 13, 14 and 18 of the Order. Ms. Anania re-inspected the Property on February 25, 2016 and September 8, 2016 to determine whether the Appellant had complied with the Order. She testified that the Appellant has complied with these requirements of the Order.

2) Lighting from a fixture is not maintained in a clean condition

[14] The Officer’s Order has three requirements related to a lighting fixture not being maintained in a clean condition. See Items 4, 10 and 16 of the Order.

[15] The Respondent submits that these conditions do not comply with Article 629-36.F of the Code, which requires that all lighting fixtures and protective material shall be maintained in a clean condition.

[16] Ms. Anania testified that she inspected the Property on September 8, 2016, and that the Appellant has not complied with Items 10 and 16 of the Order. The Appellant did not challenge this evidence.

Issue #2: Should the Appellant be required to make access into each building more secure?

[17] Two issues were identified by the Officer: 1) entrance/exit doors are not kept closed and locked; and 2) each of the three buildings lacks a two-way voice communication system for controlling access into the building.

[18] In relation to these requirements, the Respondent relies upon Article 629-29.A of the Code which states:

In multiple-dwellings where there is a shared entrance:

(1) Every door used as an entrance to or exit from the building shall be kept closed and locked and equipped with self-closing and self-locking mechanisms, and the door shall not be secured in an open position except in an emergency situation; and,

(2) Each dwelling unit shall be connected by a two-way voice communication system and security locking release mechanism to the principal entrance of the building; and

(a) A principal entrance terminus of the system shall be located so as to be easily accessible from the exterior of the building when the door at the principal entrance is locked; and

(b) The communication system shall not identify a tenant by unit number.

[19] The Property consists of three buildings that are separated by two courtyards. There is a parking lot at the west end of the Property. There is a fence around the Property. There are two gates in the fence that provide access from Kingston Road into the Property. A sketch prepared by Ms. Anania, which is attached as Schedule “A,” shows these features of the Property, as well as the location of the doors that provide access to each building.

[20] Four of the 18 repairs required by the Officer’s Order relate to addressing the fact that the “entrance/exit door is not kept closed and locked,” contrary to Article 629-29.A(1) of the Code. See Items 3, 8, 11 and 17. Ms. Anania’s evidence is that these requirements relate to the doors of the buildings rather than the gates.

[21] Three of the 18 repairs required by the Officer’s Order relate to the concern that the “[d]welling unit is not connected by two way voice communication system and security locking release mechanism to the principle [sic] entrance of the building,” contrary to Article 629-29.A(2) of the Code. See Items 1, 7 and 15.

[22] Mr. Kuhnreich testified that 167 purchased this Property about ten years ago. He testified that the building was unsecure. Non-tenants would sometimes be found sleeping in the laundry room. He had also assumed “challenging” tenants. He was unaware of the above requirements found in the Code, and on his own initiative installed two gates, with an intercom system, about five years ago to control access to the buildings. The issues that he faced upon purchase of the Property are now resolved. His tenants now include more families and children. He concedes that the self-closing hardware on both gates has been broken for over one year. As a result the gates are often left open. Ms. Anania observed the gates in an open condition each time that she conducted her inspections. Ms. Anania testified that she was able to walk unimpeded through each building as the entrance doors to each building were unlocked.

[23] Ms. Sarah Ashton testified on behalf of 167. Ms. Ashton, and her nine-year-old daughter, have lived at 1633 Kingston Road, Toronto since 2011. She feels that the gates have made the Property more secure and have resulted in the buildings being a private community. The courtyards are used by children in the buildings as a play area. She feels that if the gates were removed, the Property would be less secure. Further, she does not want to have locks on doors to the buildings. She explained that children move from building to building while playing. The installation of locked doors on the buildings would impede the movement of children and others from building to building.

[24] Mr. Kuhnreich also submitted a petition, dated May 4, 2016, that he prepared and most of the tenants signed. It states:

We, the undersigned represent ALL of the tenants of 1625-1633-1641 Kingston Road and affix our signature to the Petition the City of Toronto treat the above addresses as one “complex” and to leave the current gate system “as is” which still provides us with the full measure of security required by the bylaws of the City of Toronto.

[25] A covering letter, dated May 4, 2016, accompanied the petition. The letter states:

Dear Tenants,

As you know, Management on its own initiative installed two gates with an intercom system a number of years ago to provide an added measure of security and to keep out those who do not belong to the building. Unfortunately, the gates were broken over a period of time and we were hoping to have new cameras with better facial recognition installed before repairing the gates so that we would be able to better detect who caused the damage. The benefit of the gates are obvious as not only do they provide a measure of security, they also create an enclosed environment in the areas between the buildings.

Unfortunately, a tenant of one of the buildings (whose name I shall not disclose at this time) decided to call the City Of Toronto (COT) to complain about the gates not being repaired quickly enough. When the COT inspectors came, they informed me that we were not conforming to city bylaws as each building has to be treated individually and therefore:

• The gates should be removed
• Each building is required to have both of its doors locked at all times
• Each building should have its own intercom system for entry and exit

Based on the COT requirements, both doors will be required to remain closed at all times eliminating the fresh air by leaving a door open. It will also eliminate the privacy created behind the gates.

I have taken the liberty to appeal the COT decision by arguing the [sic] all three buildings should be treated as one complex and having the gate system restored still provides the necessary security that the COT requires. I have done so figuring that the tenants appreciate the gates and the freedom to roam between the buildings. The COT disagrees.

Therefore, as a tenant in the “complex”, if you would prefer that the COT allow the current gate system to exist, I ask that you sign a petition that I will present to the COT at the next hearing indicating your wishes. I will require the signature of all of the tenants. If I don’t receive a fully signed petition, I will withdraw the appeal and follow the COT bylaws of removing the gates, having each door on a permanent lock closure, move the intercom system to each building and prosecute those who leave a door ajar.

As a tenant, you are more than welcome to see the Order issued by the COT, and you are also welcome to join me at the next hearing to personally voice your objection to the Order, in addition to the signed petition.

Nick, the Superintendent will be asking you for your signature. The petition must be fully signed by May 11, 2016 for me to proceed.

I urge you to discuss this amongst your fellow tenants and let me know what you prefer. I will let you know if I have a fully signed petition in order to be able to advocate on your behalf.

If you have any questions or concerns, please do not hesitate to contact me.

Thank you.

[26] The Appellant submits that the three buildings constitute one “complex.” The requirements of Article 629-29.A of the Code are in relation to a “building” or “part of a building,” rather than a “complex.” The word “building” is not defined by the Code; however, it is defined by the Act as follows:

“building” means,

(a) a structure occupying an area greater than ten square metres consisting of a wall, roof and floor or any of them or a structural system serving the function thereof including all plumbing, works, fixtures and service systems appurtenant thereto,

(b) a structure occupying an area of ten square metres or less that contains plumbing, including the plumbing appurtenant thereto,

(c) plumbing not located in a structure,

(c.1) a sewage system, or

(d) structures designated in the building code…

[27] The three buildings and their courtyards are not a “building” and, therefore, the gate on the fence surrounding the perimeter of the Property is not a door used as an entrance or exit from the “building” within the meaning of Article 629-29.A of the Code, nor is a two-way connection system and security locking release mechanism required on the gate.

[28] The three buildings and their courtyards are not a ‘building’ and, therefore, the gate on the fence surrounding the perimeter of the Property is not a door used as an entrance or exit from the ‘building’ within the meaning of Article 629-29.A of the Code, nor is a two-way connection system and security locking release mechanism required on the gate. This means that the Appellant is not in breach of Article 629-29.A.(2).

[29] I am satisfied, however, that each of the three buildings does not comply with Article 629-29.A(1) of the Code as related to Items 3, 8, 11 and 17 in Inspector Anania’s Order.

[30] In making the Code, the City has chosen to create minimum standards for the security of residential tenants. I have no sympathy for the plight of 167, which has operated its business in ignorance of the City’s Property Standards By-law until advised of its existence by an Inspector of the City of Toronto and now submits that it should not have to comply with the law because its broken, ineffective alternative approach is better than the approach mandated for all residential landlords whose buildings have shared entrances by the City of Toronto. In making this determination, I wish to remind the Appellant that there is nothing in this Order that requires that the gates be removed, thus depriving tenants of a fully-enclosed courtyard; 167 is free to fix or modify the gates to ensure that their self-closing mechanisms work so that the gates close but do not lock.

Conclusions

[31] I hereby:

1. modify the Order to delete Items 2, 4, 5, 6, 9, 12, 13, 14 and 18; and
2. confirm the remainder of the Order.

[32] Should the City seek costs, it shall deliver its submissions within one week of today’s date. The Appellant shall deliver any reply costs submissions within two weeks of days date. The submissions shall be no more than three pages in length, exclusive of a Bill of Costs.

Mr. Justice M. D. Faieta

Released: September 30, 2016

Schedule “A”

DATE: 20160930 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HESHI KUNNREICH c/o 1679676 ONTARIO INC. 1625-1641 KINGSTON ROAD Appellant – and – CITY OF TORONTO Respondent

REASONS FOR DECISION Mr. Justice M. D. Faieta Released: September 30, 2016

[1] Laciak v. Toronto (City), 2014 ONSC 1206, [2014] O.J. No. 894, at para. 7.

[2] [Anderson v. Hamilton (City), 2009 ONSC 72107](https://www.canlii.org/en/on/onsc/doc/2009/2009canlii72107/2009canlii72107.html), 315 D.L.R. (4th) 486, [2009] O.J. No. 5556 (S.C.J.), at para. 35.