BARRIE COURT FILE NO.: CV-14-0402 DATE: 20190529 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Balmoral Developments Hilda Inc. Plaintiff – and – The Corporation of the City of Orillia, Ian Sugden and Kelly Smith Defendants

COUNSEL: C.D. Salazar, for the Plaintiff M. Nguyen, for the Defendants

HEARD: February 12, 2019

REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION

MULLIGAN J.:

[1] The defendants, the Corporation of the City of Orillia, Ian Sugden and Kelly Smith (collectively “the City”) bring a motion for summary judgment against the plaintiff, Balmoral Developments Hilda Inc. (“Balmoral”).

[2] The City brings this motion under Rule 20 of the Rules of Civil Procedure. Rule 20.01(3) provides:

20.01(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim of the statement of claim.

Background

[3] The background facts are set out in the Affidavit of Erwin Kurtz, the principal of Balmoral, and generally, are not in dispute. In 2008, Balmoral began the development of property known municipally as 248 Hilda Street, Orillia. Its plan was to build stacked townhouses of 24 units, as affordable housing for seniors. Balmoral proceeded with applications seeking to amend the Official Plan and the Zoning By-Law for the municipality. By-laws were passed and Balmoral submitted a Site Plan Approval Application and a building permit application.

[4] In 2010, Balmoral learned that funding for affordable housing for seniors was not available to it, and modified the project to develop residential housing for students and other tenants. In July of 2010, the City advised that the project was subject to barrier-free requirements under the Building Code. In October of 2010, a conditional building permit was issued.

A History Between the Parties

[5] A brief review of the previous litigation between these parties, with respect to this property, will provide context. The following dates will assist in anchoring this review.

• In 2008, Balmoral began the process of developing this property.
• In December of 2009, the City passed a by-law amending the Official Plan, enabling the property to be used as “stacked townhouse residential units”.
• October 25, 2010, Balmoral was granted a conditional building permit.
• Construction was completed in September of 2011.
• In June of 2012, Balmoral submitted an Exemption Application pursuant to the Condominium Act.
• On July 24, 2014, the City passed by-law 2014-75 and granted the Exemption Application subject to certain conditions. The conditions in the by-law were set out in paragraph 2, which provided that the said exemption was granted subject to the following conditions first having been complied with by Balmoral:

That Balmoral enter into an agreement with the City in which Balmoral agrees as follows;

(i) That the declaration of the Condominium for which exemption has been granted for the Condominium description contain the following statement in the section dealing with the occupation and use of units:

“Each unit or any group of units shall not be occupied and used as a ‘boarding, lodging or rooming house’ as defined in the Building Code, Ontario Regulation 350/06 made under the Building Code Act, 1992, as amended. This provision may restrict the number of persons who may occupy and use a unit in return for remuneration or for the provision of services or for both.”

(ii) That the disclosure statement provided by the declarant to prospective purchasers state that there exist restrictions with respect to the occupancy and use of units…

[6] After the building was constructed and before Balmoral sought the Exemption Certificate, it sought a ruling from the court enabling it to rent each unit to up to seven students attending a local community college or university. The City opposed such occupancy, setting out that renting to more than four students would trigger the designation of the building to boarding, lodging or rooming houses. In written reasons released October 24, 2012, Healey J. granted judgment stating in part at paras. 117(2.) and (3.)

(2.) This court declares that under the terms of the City’s zoning by-law, Balmoral can legally rent each townhouse unit to 7 occupants;

(3.) This court declares that the project is not a boarding, lodging and rooming house pursuant to the City's zoning by-law;

[7] However, Justice Healey’s decision was set aside by the Court of Appeal, see Balmoral Developments Hilda Inc. v. Orillia (City), 2013 ONCA 212. After reviewing the facts, the Court indicated at paras. 7 and 8:

[7] In our view, the application judge erred in her interpretation of the Building Code and its application to the facts before her, when she determined that the proposed use would not result in the units being boarding, lodging or rooming houses as defined in the Building Code.

[8] Accordingly, we would allow the appeal to set aside the judgment of the application judge and in its place, substitute a judgment in accordance with this endorsement.

This Application

[8] In seeking that the action be dismissed, the City poses two issues for determination by the court:

(a) Was By-Law 2014-75, enacted by the City on or about July 24, 2014, lawfully enacted?

(b) Were the “barrier-free” accessibility requirements imposed upon Balmoral by the City purportedly pursuant to the Building Code, O. Reg. 350/06 (“the OBC ” ) lawfully imposed?

[9] The City submits that if both questions are answered in the affirmative, an order dismissing the action with costs is sought.

[10] Balmoral submits that summary judgment ought to be granted in its favour, with the following relief:

(a) A declaration that s. 9(7) of the Condominium Act does not provide a municipal approval authority with a right to impose conditions on an approval of an Exemption Application made under s. 9(6) of the Condominium Act ;

(b) An order striking the conditions from By-Law 2014-75; and

(c) A declaration that the lands were not subject to the barrier-free requirements established by s. 3.8.2.1(4)(b) of the Ontario Building Code, or the requirements of ramps, guards and handrails, pursuant to s. 3.8.3.4 of the Ontario Building Code, pursuant to s. 3.8.1.1. of the Ontario Building Code, O. Reg. 350/06 as it was then drafted.

[11] Both parties filed factums and books of authorities. The City provided affidavits from Ian Sugden, Director of Development Services and Engineering, and from Kelly Smith, Chief Building Official for the City. Balmoral filed an affidavit from Erwin Kurtz, the principal of Balmoral. There were no cross-examinations on any of the affidavits.

First: Was By-Law 2014-75 Lawfully Enacted by the City?

[12] In 2008, Balmoral sought development for 24 stacked townhouses. A building permit was obtained and construction was completed in early fall of 2011. As set out more fully in these Reasons, the City required two units to be barrier-free. Those requirements were complied with other than the construction of exterior ramps, guards and handrails, matters which are still outstanding.

[13] Balmoral completed rental occupancy but then the parties entered into a dispute about the number of occupants per unit. That issue came to a conclusion with the Court of Appeal’s decision in Balmoral.

[14] After construction was completed and the building was rented, Balmoral sought a condominium exemption in 2012, pursuant to s. 9(6) of the Condominium Act. As Mr. Kurtz stated in his affidavit at para. 27:

In or around June 2012, while awaiting the hearing of the above applications [regarding the number of occupants per unit], Balmoral submitted an application to the City for an exemption of the requirements of the Plan of Condominium Approval Process, pursuant to s. 9(6) of the Condominium Act.

[15] It is trite to say that the process for seeking a Plan of Approval under the Condominium Act involves a lengthy municipal planning process and the application of ss. 51 and 51.1 of the Planning Act. However, the Condominium Act contains a provision whereby a developer can seek an Application for Exemption. Section 9 indicates that in certain situations, exemption can be granted. As s. 9(6) states:

Application for Exemption

Before making an Application under subsection 51(16) of the Planning Act, an owner of a property, or a person authorized in writing by the owner of the property may apply to the approval authority to have the description or any part of the description exempted from those provisions of ss. 51 and 51.1 of the Planning Act that would normally apply to it under subsection (2).

[16] An understanding of the exemption and its limitations is key to understanding the dispute between the parties. As part of its materials, Balmoral provided a guide issued to municipalities by the Ministry of Municipal Affairs Ontario entitled Understanding the Subdivision & Condominium Application Process (“the Guide”). It provides a lengthy and detailed step-by-step guide to municipalities as to the approval process for condominiums. The Guide also provides information to municipalities about exemptions from draft plan approval. As the Guide states at page 5:

The Condominium Act, 1998, contains provisions permitting an application for a Plan of Condominium to proceed directly to final approval, thereby bypassing the requirements for notice and draft approval, which are normally part of the approval process under the Planning Act. The approval authority can exempt a Plan of Condominium application on an application-by-application basis… In the case of Plans of Condominium, there may be circumstances in which all relevant planning considerations have been reviewed and found acceptable in the context of other planning applications for the development. In these circumstances, an exemption may be appropriate.

The Guide further states:

Furthermore, an approval authority may also wish to consider whether:

• The application is supported by municipal council and a by-law or resolution from Council has been passed to this effect;
• No conditions of draft plan approval are required . [Emphasis added.]

[17] The complexity of an ordinary condominium approval can be seen from the Ministry’s flowchart contained within this guide and attached as Schedule “A” to this decision. As can be seen, there are numerous steps which a developer must follow, including documents to be submitted, public meetings, and rights of appeal to the Ontario Municipal Board. In the ordinary course, an applicant has the right to appeal to the Ontario Municipal Board if the municipality has not made a decision within 180 days.

[18] However, as the chart shows, the process is much simpler when an Exemption Certificate is sought. As the left-hand chart illustrates for exemptions, the process requires “Receive application and fees”, then “Decide if exemption is appropriate”, then “Issue Certificate of Exemption”. The chart dealing with exemptions does not speak to the issue of timelines, if any, conditions which can be attached, or any rights of appeal with respect to non-decisions.

The History of this Application for Exemption

[19] As noted, Balmoral made the Application for Exemption in 2012. Some two years later, on July 24, 2014, the City passed By-Law 2014-75, and granted the exemption application with conditions. Paragraph 2 of the by-law provided as follows:

2. THAT this said exemption is granted subject to the following conditions first having been complied with by Balmoral: THAT Balmoral enter into an Agreement with the City in which Balmoral agrees as follows: (i) That the declaration of the Condominium for which exemption has been granted for the Condominium description contain the following statement in the section dealing with the occupation and use of units: “Each unit or any group of units shall not be occupied and used as a ‘boarding, lodging or rooming house’ as defined in the Building Code, Ontario Regulation 350/06 made under the Building Code Act, 1992 as amended. This provision may restrict the number of persons who may occupy and use a unit in return for remuneration or for the provision of services or for both.” (ii) That the disclosure statement provided by the declarant to prospective purchasers state that there exist restrictions with respect to the occupancy and use of units and reference be made to the relevant Part of Lot 15, North side of Hilda Street, Registered Plan 583 and Part of Part Lot 13, Registered Plan 431, City of Orillia, County of Simcoe. [Emphasis added.]

[20] Clearly, the by-law contains conditions as part of the exemption. The purpose of the conditions was the subject of much correspondence between Balmoral and the City of Orillia Planning Department. Mr. Kurtz summarizes the intent of the proposed condition in his affidavit at para. 29:

…The City was willing to grant the requested exemption on condition that “notice” be given to prospective purchasers that use of the property is limited to four persons paying remuneration absent compliance with the Building Code requirements of boarding houses.

[21] I will briefly review correspondence between the City’s planning staff and the developer, which ultimately led to the by-law being put before Council containing the said condition some two years after the exemption was sought. During the delay period, Balmoral took the step of attempting to appeal the non-decision of the Municipality to the Ontario Municipal Board.

[22] On January 23, 2013, the Environmental and Lands Tribunal Ontario Board wrote to counsel for Balmoral stating:

That section (s. 51(39) of the Planning Act) provides a right to appeal to the Board for the refusal by the municipality to approve a Draft Plan of Subdivision or Condominium. This provision does not provide a right of appeal for a non-decision of a municipality of a draft plan (see s. 51(34)). Further, s. 51(34) does not appear to provide a right to appeal a non-decision of a municipality to exempt a condominium from approval.

[23] The Board refused to assume jurisdiction with respect to the City’s non-decision.

The Affidavit of Ian Sugden

[24] Mr. Sugden has been employed by the City of Orillia since 2019, and is currently the Director of Development Services and Engineering, with responsibility for processing applications pursuant to the Planning Act and the Condominium Act.

[25] Clearly, the City’s Planning Department was still concerned about the number of occupants in the units. The matter was reviewed with their external solicitors. On July 16, 2013, the City’s counsel, Douglas Christie, wrote to the developer’s counsel, making reference to the earlier Court of Appeal decision. As he stated:

The City is concerned that if individual units are sold as condominium units purchasers may be “tempted” to maximize the income from a unit by renting to more than four occupants notwithstanding the requirements of the Building Code.

Our client therefore wants notice to be given to prospective purchasers that the use of the property is limited to four persons paying remuneration unless there is compliance with the Building Code requirements for a boarding house. This could be included in the use provisions of the Declaration respecting the units, and would be a part of the Disclosure Statement of the Declarant given to prospective purchasers. Normally this would be a requirement in a Condominium Agreement with the City, but such an agreement is not authorized if there is a Certificate of Exemption. However, it may be possible to enter into an arrangement with Balmoral to ensure that notice as suggested above is given.

[26] As Mr. Christie noted in his correspondence of July 16, 2013, a notice requirement could be the subject of a condominium agreement, but such an agreement was not authorized under the Certificate of Exemption procedure. He then suggested it was possible to have an “arrangement” between the City and Balmoral. After much correspondence between Mr. Sugden and the developer’s planner, and solicitors for both parties, no agreement was reached. As Mr. Sugden noted in para. 23 of his affidavit “The plaintiff refused to agree to the foregoing conditions imposed by the by-law and commenced this action as a result. The application, therefore, remains in abeyance at this time.”

[27] Although there was some indication that an agreement may have been reached, Mr. Sugden made it clear that no agreement had been entered into. His March 18, 2014 e-mail to the developer’s planners, attached as Schedule “V” to the affidavit of Erwin Kurtz, stated:

Please note that the request for condominium exemption (application) remains in abeyance until such time as your client’s solicitor has responded and agreed to proposed conditions to our solicitor’s correspondence dated December 19, 2013.

[28] The delay caused considerable concern to the developer. Its counsel wrote to the City’s counsel on June 4, 2014, stating in part:

As you are aware, the negotiations that took place between our offices only took place after:

• Mr. Sugden reneged on a statement made to our planner that the condominium Exemption Application would be promptly put before Council – this promise being made as far back as 2012.
• When Mr. Sugden failed to present this to Council as promised, we appealed to the Ontario Municipal Board.
• We received a decision from the OMB that the failure to allow the Exemption Application to go before Council (which we believe was tantamount to refusal “non-decision”) was not appealable to the Board.
• Mr. Sugden then refused to put the matter to Council once we were engaged in litigation with the City over the zoning and Building Code issues (which were and are unrelated to this exemption issue).

The current court proceedings are based, in part, on our position that Mr. Sugden cannot act as “gatekeeper” for these types of applications. He is certainly within the limits of his authority to make recommendations to Council as to what he feels should be the appropriate conditions for Council to impose. Then, if Council accepts his recommendations, and we don’t, we have the statutory right to appeal. However, to require as a condition of even allowing our client to have an audience with Council, that we “pre-agree” to terms that he favours, is in our opinion, an abuse of his authority.

[29] Some two years after Balmoral submitted its Application for Exemption, Mr. Sugden made a recommendation to Council on July 10, 2014, that the exemption be granted, but with conditions. His recommended motion stated:

In that Council direct the City’s solicitor to prepare an agreement dealing with recommended Conditions of Exemption to be entered into by Balmoral Developments Hilda Inc., subject to non-material modifications as approved by the Director of Developmental Services.

[30] With respect to the contested conditions in the by-law as passed, Mr. Kurtz stated in his affidavit at paras. 33 and 34:

33. Accordingly, Balmoral’s options were to allow the Exemption Application to remain in abeyance forever, or for the wording of the proposed conditions to be agreed upon so that City Council could receive the Exemption Application and make a decision on the same.

34. I can say unequivocally that any suggestion that Balmoral consented to the contested conditions is incorrect.

[31] In the result, Balmoral now brings this application for a determination as to whether By-Law 2014-75 was lawfully enacted by the City of Orillia.

Analysis

[32] Clearly, courts have expanded powers now under r. 20.04 of the Rules of Civil Procedure in considering summary judgment applications. The issue was brought into sharp focus by the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7. As Justice Karakatsanis stated at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[33] The City seeks summary judgment determining that By-Law 2014-75 was lawfully enacted.

Position of the City

[34] The City’s position is set out in the following paragraphs of its Factum:

47. The City respectfully submits that by-law 2014-75 was passed within the powers given to it under the foregoing sections [The Municipal Act ]. By-law 2014-75 requires the Developer to enter into an Agreement with the City which requires the declaration of the Condominium to include a statement that the units within the building shall not be occupied or used as a “boarding, lodging, or rooming house”…

48. The City submits that the purpose of the by-law and of such statement in the declaration and disclosure to prospective buyers is to protect the health, safety and well-being of person as well as protecting consumers of the townhouse units…

[35] As the City points out in its Factum at para. 51:

Section 272 of the Municipal Act, 2001, prohibits the passing of a by-law that is not ultra vires if it is passed in good faith. The section reads:

Restriction on quashing by-law

272 A by-law passed in good faith under any Act shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law.

Did the City act in bad Faith?

[36] In Equity Waste Management of Canada v. Halton Hills, (1997), 35 O.R. (3d) 321, [1997] O.J. No. 3921, at para. 61, Laskin J.A. defined bad faith by a municipality as follows:

Bad faith by a municipality connotes a lack of candour, frankness and impartiality. It includes arbitrary or unfair conduct and the exercise of power to serve private purposes at the expense of the public interest.

[37] In his decision, Laskin J.A. made reference to the Court of Appeal’s decision in RE H.G. Winton Ltd. and North York (1978), 20 O.R. (2d) 737. In speaking for the Divisional Court, Robins J. stated at pp. 744-5:

To say that council acted in what is characterized in law as “bad faith” is not to imply or suggest any wrongdoing or personal advantage on the part of any of its members…But it is to say, in the factual situation of this case, that Council acted unreasonably and arbitrarily and without the degree of fairness, openness, and impartiality required of a municipal government.

The Position of Balmoral

[38] The position of Balmoral is captured in paras. 43-44 of its Factum:

43. At no time did the plaintiff come to any agreement with the City regarding the conditions. Instead, the defendant Ian Sugden, on behalf of the City, improperly and unlawfully held the plaintiff’s Exemption Application hostage for two years and refused to even put the Application before City council without prior approval of the wording of the Conditions from the plaintiff.

44. The City is now, in bad faith, attempting to seek an enforcement of an alleged agreement when no evidence of such an agreement exists.

Conclusion on the Exemption Certificate Conditions

[39] Two years passed between the time the Application for Exemption Certificate was filed by Balmoral and the City passed By-Law 2014-75. When the Application for Exemption Certificate was initially received, the City had two choices. The first was to require the developer to go through the entire condominium process as established in the Condominium Act for a building that was recently constructed with full approval of the Municipality for rental purposes. No doubt that process, if followed, would have added time and expense to the developer’s plans, however, it would have enabled the Municipality to put the notice provisions in the Condominium Agreement. If not acceptable to the developer, the issues could have been referred to the Ontario Municipal Board.

[40] The second, which was the path chosen, is the Exemption Certificate route set out in s. 9 of the Condominium Act. That section enables the Municipality to determine if an exemption is appropriate and if it is, issue a Certificate of Exemption. If it is not appropriate, the developer would then be required to follow the path of full condominium approval, including public meetings with rights of appeal to the Ontario Municipal Board.

[41] However, s. 9(6) of the Condominium Act does not make any provisions for conditions when Certificates for Exemption are sought. The Ministry makes this clear in its Guideline to Municipalities by stating, “No conditions of draft approval are required”.

[42] In this case, a procedure which was meant to be a relatively quick and efficient way to bypass the provisions of ss. 51 and 51.1 of the Planning Act, took approximately two years to make its way to City Council, resulting in a by-law with conditions.

[43] Of course, Balmoral could have acceded to these conditions but it has not done so. The City solicitor properly acknowledged in his correspondence that a condominium agreement with such conditions is not authorized if there is a Certificate of Exemption Application. He rightly pointed out that there was a possibility of an arrangement being entered into between Balmoral and the City. In my view, Mr. Sugden as City Planner, elevated the suggestion of an arrangement to a condition which could be inserted into the by-law. As noted, the staff recommendation to Council prior to the by-law being enacted, stated “Council directed that the City solicitor to prepare an agreement dealing with the recommended conditions of exemption to be entered into by Balmoral Developments…”

[44] In passing an exemption pursuant to s. 9(6) of the Condominium Act, the Municipality “carved in stone” the notice provisions sought by planning staff. In my view, Mr. Sugden, an employee of the City of Orillia, acted in bad faith by requiring the imposition of a condition in an Exemption Certificate not authorized by s. 9 of the Condominium Act. There was a two-year delay until the by-law containing a condition was put before Council and passed. During this delay, as the Tribunal indicated in their written correspondence, Balmoral had no right to appeal the delay or non-decision.

[45] I am satisfied that, the City having proceeded on the Exemption Certificate track, lacked the right to impose conditions on Balmoral’s Exemption Certificate Application. The bad faith that I attribute to the City, through the actions of its staff, does not imply wrongdoing or personal advantage, but does rise to the level of unreasonableness and unfairness; conduct which is not expected of a municipal government. I am satisfied that a Declaration should issue. The City did not have authority to impose conditions. I further order that the conditions in By-Law 2014-75, set out in paragraphs 2 and 3 of the said by-law, be struck.

Second: Are the Lands Subject to the Barrier-Free Requirements Imposed by the City?

[46] As Mr. Kurtz sets out in his affidavit at paras. 17, 18, and 19:

17. Ultimately, the City imposed the barrier-free requirements on the Project with the effect that 1 unit in each building was required to be reconfigured to be a single floor dwelling thereby significantly reducing the size of those units.

18. Balmoral was further required to install ramps, handrails and landings pursuant to the barrier-free provisions.

19. Balmoral did not exercise its right to an appeal, as set out in section 25 of the Building Code Act. Unfortunately, the Project was already very delayed and would continue to be delayed while the appeal worked its way through the Court system. The costs to Balmoral in delaying the Project were absolutely prohibitive to appealing the imposition of the barrier-free conditions to the Project.

[47] Balmoral complied with the barrier-free requirements and construction of the project was completed in 2011. But Balmoral submits that the City’s imposition of this requirement was based on an incorrect interpretation of provincial policies.

Kelly Smith

[48] Kelly Smith is the Chief Building Official for the City. Her affidavit addresses the “barrier-free” accessibility requirements imposed by the municipality. As she noted in her affidavit at para. 5:

The City required that the Plaintiff’s buildings be constructed in a manner that accommodated persons with disabilities. The Plaintiff objected to the legality of these directions, specifically as they concerned the following:

a) By email to Mr. Kurtz on July 28, 2010 (3:51 PM), I required – after speaking with a provincial Code Advisor at the Ministry of Housing – that at least 10% of units ( i.e., two units) be “barrier-free” as required under s. 3.8.2.1(4) of Division B of the OBC and its associated definitions…

b) By Occupancy Report dated November 23, 2011, the City further directed that the two barrier-free units (Unit 6 and 18) in the building “will only be occupied…pending the completion on or before June 4, 2012 of the ramp, guards and handrails” pursuant to s. 3.8.3.4 of the OBC…

[49] Ms. Smith’s affidavit further notes that Units 6 and 18 are currently occupied, notwithstanding the fact that the ramp, guards, and handrails have not been completed.

Mootness

[50] Balmoral acknowledges that it complied with the City’s requirements with respect to the internal construction of two units. It did not appeal the City’s decision but has not complied with all requirements with respect to the exterior ramp, guards and handrails. It now seeks a declaration that the lands ought not to have been subject to the barrier-free requirements of the Ontario Building Code, submitting the City incorrectly interpreted the relevant provisions of the Building Code.

[51] The City seeks an order that the “barrier-free” accessibility requirements imposed by the City pursuant to the Building Code, O. Reg. 350/06 were lawfully imposed.

[52] In my view, this requires a consideration of whether the issue between the parties is now moot. Perhaps the leading authority on mootness is the Supreme Court of Canada’s decision in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. As Sopinka J. stated for the Court at p.353:

Mootness

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case… The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice…

[53] The approach in recent cases involves a two-step analysis. First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, is it necessary to decide if the court should exercise its discretion to hear the case.

The Collateral Attack Doctrine

[54] As Mr. Kurtz noted in his affidavit, Balmoral did not exercise its right to an appeal, as set out in s. 25 of the Building Code Act. In R. v. Wilson, [1983] 2 S.C.R. 594, McIntyre J. defined collateral attack at p.597:

It is also well-settled in the authorities that such an order may not be attacked collaterally and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.

Conclusion on the Barrier-Free Access Requirements

[55] In my view, the issue is moot. Balmoral constructed the two units as barrier-free units in accordance with the by-law and building permit. It declined to appeal the City’s requirements for barrier-free units. In my view, Balmoral cannot use its request for a declaration now to mount a collateral attack on a by-law which it did not appeal.

[56] I, therefore, find that the barrier-free accessibility requirements imposed by the City were lawful. It follows that the City has the continuing right to impose the ramp, guard and handrail requirements pursuant to that by-law.

Conclusion

[57] In its summary judgment motion, the defendants sought judgment on two issues. I make the following orders with respect to each issue:

(a) Was By-Law 2014-75 enacted by the defendant Corporation of the City of Orillia (the City) on or about July 24, 2014 unlawfully enacted?

For reasons given, the conditions contained in the by-law were not lawful. A declaration will issue, together with an order, removing the conditions.

(b) Were the barrier-free accessibility requirements imposed upon the plaintiff by the City purportedly pursuant to the Building Code lawfully imposed?

For reasons given, I am satisfied that they were lawfully imposed. Balmoral constructed the dwelling accordingly and did not pursue any rights of appeal available to it. Therefore, the action with respect to this issue is dismissed.

Liability and Damages

[58] The parties agree that the action dealt with the issue of liability with respect to the City’s enacting this Exemption Certificate by-law containing conditions. The issue of damages was not addressed and is therefore subject to a trial of that issue or other disposition of the court. Rule 20.04(3) provides:

Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue or grant judgment with a reference to determine the amount.

[59] Rule 20.05 provides the court with expanded powers when summary judgment is refused or is granted only in part. Subrule (2) provides directions that the court can impose.

[60] I am prepared to continue as Trial Management Judge. The parties should consider the provisions of r. 20.05(2) to arrive at an agreement as to how the damages issue may proceed through trial. If the parties are unable to reach an agreement, they may seek an attendance before me by contacting the Trial Coordinator in Barrie.

Costs

[61] At the conclusion of this motion, both parties made costs submissions, in the event that they were successful. However, in this case, success has been mixed and the issue of damages is yet to be determined.

[62] I therefore give the parties an opportunity to make further submissions on costs. Balmoral will have 20 days to make submissions in writing, not to exceed five pages plus a Costs Outline. The defendants will have a further 10 days for reply, not exceeding five pages plus a Costs Outline. There will be no further right of reply.

MULLIGAN J.

Released: May 29, 2019

SCHEDULE “A”

SUBDIVISION & CONDOMINIUM APPROVAL PROCESS