Court File and Parties

COURT FILE NO.: 16-59101 DATE: 2017/05/08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ST. JAMES NO.1 INC., Applicant AND: ED VANDERWINDT, CHIEF BUILDING OFFICIAL and THE CITY OF HAMILTON, Respondents

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: K. Mullin and L. Boritz, for the Applicant C.E. Robertshaw, for the Respondents

HEARD: April 27, 2017

Reasons for Decision

Background

[1] The applicant St. James No.1 Inc. (the “owner” or the “Corporation”) is the owner of a property municipally known as 1 St. James Place, Hamilton, Ontario (the “property”). It became the owner by a Transfer/Deed of Land registered on April 1, 2014 (the “Transfer”). The property was designated by Council of the City of Hamilton (the “City”) as a property of cultural heritage under s. 29 of the Ontario Heritage Act, R.S.O. 1990, c. O.18 (the “OHA”) by by-law passed September 23, 2015 (the “designating by-law’).

[2] The Corporation was incorporated on February 12, 2014. As will be seen, the addresses of the registered office of the Corporation and of its two original directors are important to the determination of the issues on this matter. The registered office address of the Corporation was and remains 971 Highway No. 6, R.R. # 2, Flamborough, Ontario (the “Flamborough address”), which is also the residence address of one of the two original directors of the Corporation Victor John Veri. The Flamborough address was also shown as the address for service of the owner of the property on the Transfer registered in the relevant registry office.

[3] The other original director, Wei Fan, resides at 79 Rockhaven Lane, Waterdown, Ontario (the “Waterdown address”). According to the “Corporation Point in Time Reports” included in the City’s affidavit material, as of March 31, 2016 Mr. Fan was the sole director and officer of the Corporation and Mr. Veri was no longer shown as a director or officer. However, his residence being the Flamborough address continued to be shown as the registered office of the Corporation on the public corporate register.

[4] S. 34(1) of the OHA provides that an owner of a property designated under s. 29 may not demolish or remove a building or structure on the property unless it applies to the Council of the municipality and has received consent in writing to the demolition or removal.

[5] On October 14, 2015 the owner submitted a heritage permit application to the City for permission to demolish all of the buildings on the property (the “first heritage demolition application”). The application listed the Waterdown address as the owner’s address.

[6] On November 9, 2015 the owner wrote to the City seeking to withdraw the first heritage demolition application. The City subsequently refused the first heritage demolition application and sent notice of its decision to the address indicated on the application form, being the Waterdown address.

[7] On December 11, 2015 the owner submitted a further heritage permit application to the City for permission to demolish all of the buildings on the property (the “second heritage demolition application”). The address of the owner shown on the second heritage demolition application was the Flamborough address.

[8] On December 14, 2015 the City sent a letter to Mr. Veri, at the Flamborough address, giving notice of the City’s receipt of the second heritage demolition application.

[9] On March 9, 2016, Council for the City resolved to refuse the second heritage demolition application and by registered letter dated March 10, 2016, addressed to the owner at the Waterdown address, the City gave notice of the Council’s refusal and notice that under s. 34.1 of the Ontario Heritage Act the owner may appeal the Council decision to the Ontario Municipal Board. The letter advised that in order to appeal the decision the owner must deliver a Notice of Appeal to the Ontario Municipal Board and to the clerk of the city within 30 days of the day the owner received notice of Council’s decision.

[10] Section 34(2) of the OHA provides that, within 90 days after the notice of receipt of an application to demolish or remove a building or structure on a property designated under s. 29 is served on the owner, Council may consent to the application, subject to such terms and conditions as may be specified by the Council, or may refuse the application, and shall give notice of its decision to the owner and shall publish its decision in a newspaper having general circulation in the municipality.

[11] Section 34(4) of the OHA provides that if the Council fails to notify the owner within the 90 day time period mentioned in s. 34(2), the Council shall be deemed to have consented to the application.

[12] On April 14, 2016 the owner delivered a Notice of Appeal to the office of the City Clerk. The Notice of Appeal was addressed to the Ontario Municipal Board and was signed by Mr. Veri, identifying himself as President of the Corporation.

[13] The owner’s appeal from the refusal of Council to consent to the second heritage demolition application remains pending before the Ontario Municipal Board.

[14] The owner took the position that, pursuant to s. 34(4) of the OHA, Council was deemed to have consented to the second heritage demolition application because it failed to effectively give notice to it of its decision to refuse the application, on the basis that the delivery of the notice to the Waterdown address did not constitute proper notice under the OHA.

[15] On September 2, 2016 Mr. Veri attended at City Hall and attempted to submit an application to the City on behalf of the owner for a demolition permit under the Building Code Act, 1992, S.O. 1992, c. 23 (the “BCA demolition permit application”), together with a letter from the owner’s counsel, Denise Baker, setting out the reasons for the owner’s position that Council’s consent to the demolition was deemed to have been given.

[16] City staff refused to accept the BCA demolition permit application but accepted Ms. Baker’s letter.

[17] The Chief Building Official Ed VanderWindt responded to Ms. Baker’s letter advising that s. 7(c) of City By-law No. 09-208 expressly states that, as CBO, he does not have the power to refuse or issue a demolition permit for a building on a property designated under the OHA.

Nature of the Application

[18] The owner has brought an application for the following relief:

(a) a declaration that deemed consent was given by Council under s. 34(4) of the OHA for the demolition of the property;

(b) a declaration that the City’s Demolition Control By-law is not effective to prohibit the CBO from issuing or refusing to issue a demolition permit for the property as a result of its designation under the OHA;

(c) an order under s. 25 of the Building Code Act (the “BCA”) rescinding the decision made by the CBO not to accept and process the owner’s BCA demolition permit application; and

(d) an order pursuant to s. 25 of the BCA requiring the CBO to issue a demolition permit for the property.

Issues

[19] Although there were other issues identified by the parties in their respective Facta, during submissions it became apparent that the disposition of the application would depend upon a determination of whether delivery of the notice of Council’s decision on March 10, 2016, addressed to the Waterdown address, constituted sufficient notice which would prevent Council from being deemed to have consented to the second heritage demolition application.

[20] If the notice addressed the Waterdown address was sufficient, then the CBO was justified in refusing to accept and process the owner’s BCA demolition permit application under City bylaw No. 09-208. If the notice was insufficient, then Council was deemed to have consented to the second heritage demolition application, thereby obliging council to pass a bylaw removing the designation of the property under the OHA, which would in turn oblige the CBO to process the owner’s application for a demolition permit.

[21] Counsel for the owner acknowledged that, even if Council was deemed to have consented to the second heritage demolition application, it would not be appropriate for the Court to order the CBO to issue a demolition permit in respect of the property, as the CBO would be required to determine whether the application complies with all other applicable law.

[22] It was not suggested by the owner that the address to which the notice of Council’s refusal was sent was not Mr. Fan’s residence at the time, nor did it suggest that the notice was not received by him. The owner did not dispute that at the time of delivery of the notice, Mr. Fan was shown on the public corporate register as its sole director and officer. The owner similarly did not argue that the notice was not delivered within the time specified in s. 34(4) of the OHA or that there was any other defect or deficiency respecting the notice other than the fact that it was addressed to Mr. Fan’s residence address in Waterdown. Specifically, the owner did not argue that the City failed to publish notice of Council’s decision in a newspaper having general circulation in the municipality.

[23] The narrow question for determination is therefore whether, solely by reason of the City having addressed the notice of Council’s decision to Mr. Fan’s residence rather than to the owner’s address set forth on the second heritage demolition application, Council was deemed to have consented to the application.

Analysis

[24] The owner’s argument that the giving of notice of Council’s decision by letter addressed to Mr. Fan’s residence address in Waterdown was insufficient, rests upon s. 67 of the OHA, which reads as follows:

67. (1) Any document required to be given, delivered or served under this Act or the regulations is sufficiently given, delivered or served if it is served,

(a) by personal service;

(b) by mail to the last known address of the person to whom delivery or service is required to be made;

(c) by commercial courier to the last known address of the person to whom delivery or service is required to be made; or

(d) by a method prescribed by regulation. 2009, c. 33, Sched. 11, s. 6 (20)

(2) Personal service of a document is effective on the day it is given when it is left with the individual. 2009, c. 33, Sched. 11, s. 6 (20).

(3) Subject to subsection (5), service or delivery of a document by mail is effective five days after the day the document is mailed. 2009, c. 33, Sched. 11, s. 6 (20).

(4) Subject to subsection (5), service or delivery of a document by commercial courier is effective two days after the day the commercial courier received it. 2009, c. 33, Sched. 11, s. 6 (20).

(5) Subsections (3) and (4) do not apply if the person establishes that the service was not effective at the time specified in those subsections because of an absence, accident, illness or other cause beyond the person’s control. 2009, c. 33, Sched. 11, s. 6 (20).

[25] The owner argues that s. 34(2)(b) of the OHA requires notice of Council’s decision to be given to the owner. It says that since the address for the owner which was set forth on the second heritage demolition application was the Flamborough address, and not the Waterdown address being the address which had been set forth in the first heritage demolition application, the Flamborough address was the “last known address of the person to whom delivery or service is required to be made” as set forth in ss. 67(1)(b) of the OHA and was therefore the address to which the mailed notice was required by the Act to be addressed. It says that since the notice was sent to an address other than the “last known address” of the owner, it was ineffective, and Council was for that reason deemed to have consented to the application.

[26] I am unable to accept this submission. In my view, on a plain reading of s. 67 of the OHA, it does not set forth an exhaustive list of methods or modes by which a document must be given, delivered or served under the Act to be effective. Rather, the section simply provides that if a document is given, delivered or served by one of the methods set forth in paragraphs (a) to (d), it is sufficiently given, delivered or served (emphasis added).

[27] In the case of St. Peter’s Evangelical Lutheran Church v. Ottawa (City), [1982] 2 S.C.R. 616 (S.C.C.) the Supreme Court of Canada had occasion to consider the interplay between sections 34 and 67 of the Ontario Heritage Act, S.O. 1974, c. 122, being predecessor legislation to the current OHA. Although sections 34 and 67 of the 1974 Act were worded differently than the sections under the current OHA, they were similar insofar as s. 34 provided for Council of the municipality to cause notice of its decision to refuse an application for demolition to be given to the owner, and s. 67 set forth the methods by which any notice or order required to be given, delivered or served under the Act was sufficiently given, delivered or served.

[28] In St. Peter’s no formal or written notice of Council’s refusal of the church’s application for demolition of the designated property was sent to the owner at all. The city relied only upon the fact that at least two members of the church were present at the meeting of Council when the decision was made. Justice McIntyre, writing for the majority observed, on the eighth page of the report, that:

“While I would not consider that s. 67 provides the only manner of giving notice, it is my opinion that some positive step in that regard must be taken. Section 34 of the Act was enacted for the protection of the landowner. The notice provision of subs. (2) is not merely a formal requirement but one of substance. It is there to insure that the landowner will know what decision has been made and the date of that decision. He will thus be aware of the date of commencement of any additional time period set running by the decision so that he will be able, with some degree of certainty, to make such lawful disposition or use of his property as may be permitted under the Act.”

[29] The majority found that, on the facts of the case, the City of Ottawa had not taken “some positive step” in regard to the giving of notice to the owner and therefore council was deemed to have consented to the application for demolition.

[30] In the present case not only did the City of Hamilton take a “positive step” to give notice to the owner, the notice that it gave was addressed to the sole director and officer of the owner Corporation (and therefore the sole directing mind of the Corporation) who actually received it. Not only did the owner, through its sole director and officer, receive the notice but it acted upon it by delivering a Notice of Appeal of Council’s decision to the Ontario Municipal Board.

[31] It was open to the legislature, in enacting the current OHA, to make the methods or modes of giving notice to owners listed in s. 67 exhaustive and mandatory but it did not do so. The drafters of the legislation must be considered to have been aware of the finding by the Supreme Court of Canada in St. Peter’s that the list of methods of giving notice to owners in s. 67 of the predecessor Act was not exhaustive and to have chosen to permit equivalent flexibility for the giving of notice under the current Act.

[32] I find on the facts of this case that Council did not fail to notify the owner under clause 34(2)(b) of the OHA within the time period mentioned in subsection (2), and therefore Council is not deemed to have consented to the second heritage demolition application.

Disposition

[33] The application is therefore dismissed.

[34] The parties are strongly encouraged to agree upon costs. In the event that they are unable to agree, they may make brief written submissions with respect to costs. The respondent shall have 21 days from the date hereof to deliver its submissions, and the applicant shall have 14 days thereafter to deliver its submissions. Such submissions shall not exceed three double-spaced typed pages, exclusive of Bills of Costs or Costs Outlines and Offers to Settle and shall be delivered to my chambers at 85 Frederick Street 7th floor, Kitchener, Ontario, N2H 0A7.

D.A. Broad, J. Date: May 8, 2017