CITATION: Davis v. Guelph (City), 2011 ONCA 761
DATE: 20111206
DOCKET: C53429
COURT OF APPEAL FOR ONTARIO
Blair, Juriansz JJ.A. and Pepall J. (ad hoc)
BETWEEN
Erica Davis
Appellant (Respondent in Appeal)
and
The Corporation of the City of Guelph
Respondent (Appellant in Appeal)
Scott Worsfold for the appellant, The Corporation of the City of Guelph
Ms. Erica Davis, self-represented
Heard: October 24, 2011
On appeal from the order of Justice D.G. Price of the Superior Court of Justice, dated February 18, 2011, allowing an appeal from an order of the City’s Property Standards Committee and quashing the order of the City’s Property Standards Officer.
R.A. Blair J.A.:
Overview
[1] This appeal has its roots in an ongoing dispute between Ms. Davis and the City of Guelph over the state of repair of a swimming pool located in her back yard at 8 Terrace Lane. The dispute began in the spring of 2006.
[2] Following a complaint from one of Ms. Davis’ neighbours at that time, the City conducted two inspections of the property and observed that there was standing water on a tarp covering the pool and that the circulation pump for the swimming pool did not appear to be functioning. On May 31, 2006, the City served a Notice of Violation under No. (2003) – 17192, Standing Water By-law, requiring Ms. Davis to ensure by June 6 that the pool pump was circulating the pool water and that the water remained chlorinated. Standing water is a breeding ground for mosquitoes, and the threat of the West Nile virus was a prevalent concern at the time.
[3] On June 15, 2006, an enforcement officer from the City, Ray Borthwick, attended at the premises and – in the absence of Ms. Davis, who was out of the country on a family matter – re-entered the back yard. Observing that the standing water remained on the tarp and that the pump was still not functioning, Mr. Borthwick arranged to have the standing water removed from the tarp, the tarp removed from the pool and – after consultation with an outside swimming pool company – the pool drained to a depth of 6” in the shallow end, and the remaining water chlorinated.
[4] These actions, and Ms. Davis’ failure to take any steps to respond to the City’s Notice, were the genesis of the ongoing problems that followed. Ms. Davis says that when she returned from abroad she discovered that the vinyl lining on the pool had begun to peel away and the surrounding earth had begun to collapse into the pool. On June 26, 2006 she wrote to the City asking what they had done and requesting compensation. In August, the City conducted another inspection and noted that there was green-coloured standing water in the pool and that the pool liner was still in disrepair. The City issued another Notice of Violation on August 2, 2006 requiring that Ms. Davis ensure that the pool pump was circulating water and that the water was chlorinated by August 8, 2006. When that was not done Mr. Borthwick and a Building Inspector, Robert Reynen, attended at the premises on August 10 and caused the remaining water to be drained from the pool.
[5] There followed a series of further Notices of Violation under the City’s Standing Water By-law in 2007, in 2008 and in 2009. Ms. Davis did not respond to any of them. It was her position that the City had caused the damage to the pool by improperly draining the water out of it, and that the City should pay for and repair the damage. In June 2008, she commenced a civil action against the City claiming damages in the amount of $75,000, representing her estimated cost of repairing the pool.
[6] Finally, on May 26, 2009, Mr. Reynen – by then the City’s Manager of Inspection Services and the Property Standards Officer – issued a Repair Order to Ms. Davis requiring her to repair the pool and make it structurally sound, as well as the surrounding concrete walk areas in the yard, or, alternatively, to remove the pool. She was to comply by June 26, 2009.
[7] Ms. Davis appealed this order to the City’s Property Standards Committee, which confirmed the Repair Order on June 23, 2009. She then appealed the Order of the Committee to a judge of the Superior Court of Justice, as she is entitled to do under the Building Code Act, S.O. 1992, c. 23, s.15.3(4).
[8] On February 18, 2011, Price J. allowed her appeal, quashed the order of the Property Standards Officer and substituted his own order that the costs of repairing the swimming pool be shared by the parties in proportions to be determined by him.
[9] The City appeals, raising procedural fairness, statutory interpretation and jurisdictional grounds. In particular, Mr. Worsfold argues that the appeals judge erred by:
a) breaching the principles of procedural fairness by determining issues without providing the City with the opportunity to respond and make submissions, including issues concerning:
(i) whether the respondent’s back-yard swimming pool constituted a “room or place actually being used as a dwelling” as contemplated by s. 437 of the Municipal Act, 2001, S.O. 2001, c. 25;
(ii) the application of Charter privacy rights to an inspection under the Municipal Act, and City by-laws; and
(iii) Whether the appeals judge had jurisdiction to make the order requiring the parties to share the costs of repair;
b) by erring in his determination of the foregoing issues in any event; and,
c) by holding that the Repair Order should be set aside on the grounds of bias.
[10] I would allow the appeal for the reasons that follow.
Facts
[11] The City of Guelph has a Standing Water By-law that prohibits a swimming pool and swimming pool cover from containing standing water (i.e., any water that is not continuously in movement by natural or mechanical means). As noted, there was a particular concern during this period of time that standing water areas not become breeding grounds for mosquitoes in order to protect the public from the spread of the West Nile virus.
[12] In the spring of 2006, the City received a complaint from one of Ms. Davis’ neighbours that standing water in her pool constituted a health hazard. Mr. Borthwick was sent to investigate. He observed the pool from an adjacent property on May 9 and May 29, 2006, saw water on a blue tarp covering the pool, and concluded that the circulation pump was not functioning to keep the water circulating. He issued a Notice of Violation on May 31, 2006, requiring Ms. Davis to ensure that by June 6 the pool pump was circulating the pool water and that the water remained chlorinated.
[13] On June 15, 2006, Mr. Borthwick returned to the Davis premises again to determine whether the Notice had been complied with and to carry out the work if required. Ms. Davis was out of the country. He entered the rear yard of the property, without consent or a warrant, and observed that standing water remained on the blue tarp covering the pool and that the pool pump was not functioning.
[14] As a result, Mr. Borthwick caused the blue tarp covering the pool to be vacuumed dry and removed. He also observed that there was pre-existing damage to the pool liner in a number of locations and that the liner was pulled away at the corners and at the side of the pool. There was duct tape evident at the side of the pool to fasten the liner, temporarily, to the concrete wall. Photographs taken at the time confirm this. Mr. Borthwick then consulted an outside pool company and, following the advice he received from that source, arranged to have the water in the pool drained to a depth of 6” in the shallow end. The idea was to leave some water in the pool to avoid further damage to the liner until the owner could put the pool into proper operating condition. The water in the pool was then chlorinated with the approval of the Wellington-Dufferin-Guelph Public Health Inspector.
[15] When Ms. Davis returned she was upset to learn that her pool cover and pump had been removed and that the water in the pool had been emptied to a level below the entry valves through which water had to enter to keep water circulating, and which – she says – caused the vinyl liner to peel away further and the surrounding earth to begin collapsing into the pool. She wrote to the City in June to complain, but received no response to her letters.
[16] On August 2, 2006, Mr. Borthwick again inspected the Davis pool from an adjacent property and observed that there was green coloured standing water in the pool and that the pool liner was still pulled away at the corners and side. It appeared to him that no steps had been taken by the owner since the June 15 inspection, and he issued another Notice of Violation under the Standing Water By-law requiring the owner to ensure that the pool pump was circulating the pool water and that the water remained chlorinated. He posted the Notice and sent a copy to Ms. Davis by mail.
[17] On August 9, 2006, Mr. Reynen – then one of the City’s Building Inpectors – attended at the Davis premises. He knocked on the door but received no response. He left a notice on the front door advising that remedial work would be carried out by the City the following day to comply with the Standing Water By-law as required by the August 2 Notice issued by Mr. Borthwick. Prior to his August 9 attendance, Mr. Reynen was aware that Mr. Borthwick had attended the property in June to carry out earlier work relating to a standing water violation. There is no evidence, however, that Mr. Reynen had any involvement in any of the steps earlier taken by Mr. Borthwick.
[18] Ms. Davis says that she sent letters to the City, including one to Mr. Reynen on June 26, and that she had a number of telephone conversations with City officials, including Mr. Reynen, in which she complained that the City had unnecessarily caused damage to her pool and asked that the City repair the damage. Mr. Reynen does not recall the various letters referred to by Ms. Davis, save for one – the letter dated June 26, 2006, to which he did not respond on the advice of his superior, Bruce Poole, the City’s Chief Building Inspector. Nor does he recall any telephone calls with Ms. Davis during the course of the summer, although his records indicate that he tried, unsuccessfully, to call her on four separate occasions on August 9.
[19] At the outset of the appeal hearing, Ms. Davis filed an audio tape and a transcript of a telephone conversation that satisfied the appeal judge she had spoken to Mr. Reynen on the phone on August 10, 2006. Counsel for the City did not have a copy of the audio tape, but in any event the upshot of the conversation between Ms. Davis and Mr. Reynen on August 10 – according to the transcript – is that, on Ms. Davis’ side, she wanted to have her expert and her lawyer and witnesses there when the City officials attended and that she wanted the City to repair the pool, and, on Mr. Reynen’s part, that he refused to budge from the City’s position that the City would be attending that day to empty the pool.
[20] Mr. Reynen did attend at the Davis premises on August 10, 2006, along with Mr. Borthwick and a Wellington-Dufferin-Guelph Health Inspector and a Guelph police officer. Ms. Davis grudgingly permitted access to her back yard where Mr. Reynen directed the City staff to empty the pool of the remaining standing water as it was in contravention of the Standing Water By-law and had not been corrected as required by the August 2 Notice of Violation.
[21] The saga continued over the next few years.
[22] As a result of complaints about standing water in the pool, further Notices of Violation under the Standing Water By-law were issued on June 22, 2007, August 13, 2007, May 26, 2008 and May 15, 2009. On May 6, 2008, an Order of the Public Health Inspector was issued under the Health Protection and Promotion Act, R.S.O. 1990, c. H.7, requiring the respondent to treat the water in the pool with larvicide and to have the pool fully operational or permanently backfill the pool.
[23] Inspections of the premises by Mr. Borthwick and a Public Health Inspector on July 9, 2007, August 21, 2007, June 19, 2008, July 2, 2009 and August 12, 2009 confirmed that Ms. Davis had done nothing to comply with the various Notices of Violation. On each of these attendances, no one answered the door when the officials arrived and they entered the rear yard of Ms. Davis’ property without consent and without having obtained a warrant. The City contractor added larvicide to the water on three of these occasions.
[24] In June 2008, Ms. Davis commenced her action against the City claiming damages for the costs of repairing the pool. The action was dismissed by Herold J. on February 16, 2010. Ms. Davis subsequently appealed that decision, but was considerably late in filing her Notice of Appeal. She was ultimately denied an extension of time to appeal.
[25] The condition of the swimming pool continued to deteriorate during all this time.
[26] On May 14, 2009, a Property Standards Inspector for the City, Stephen Jamieson, attended the Davis property in response to yet another complaint about standing water. He testified that he obtained the consent of a male occupant of the house to enter the property. Ms. Davis contests this vigorously, insisting that she did not have a male visitor or a male occupant in the house during this period of time. The trial judge rejected Mr. Jamieson’s evidence on this point and found that he entered the property without permission.
[27] In any event, Mr. Jamieson discovered that the rear yard was locked. He therefore viewed the yard from an adjacent property and then gained access to Ms. Davis’ rear yard from the adjacent property. He observed that there was standing water in the pool and that there was visible structural failure due to the partial collapse of the pool walls. He considered this to be a hazard to any persons in the immediate vicinity and he issued a Notice of Violation under the Standing Water By-law the following day, May 15, 2009.
[28] Mr. Jamieson then had a discussion with Mr. Reynen, who in his then capacity as Manager for Inspection Services was Mr. Jamieson’s supervisor. As a result of the information conveyed to Mr. Reynen, together with the photographs showing the deterioration of the swimming pool and the surrounding concrete walkway, Mr. Jamieson and Mr. Reynen concluded that the condition of the swimming pool and adjacent walkways was such that they posed a hazard to any persons in the vicinity of the pool in the event of further collapse of the structure.
[29] On May 26, 2009, Mr. Reynen issued the Repair Order that is the subject of these proceedings.
Analysis
Procedural Fairness Issues
[30] I do not think it is necessary to deal at length with the procedural fairness issues raised by the City.
[31] It appears that the evidence and the issues at the appeal hearing focussed on the alleged impropriety of the City officials’ conduct in doing what they did to the pool in 2006 and on whether Mr. Jamieson and the other agents had consent to enter on Ms. Davis’ property in her absence. The issue of whether the swimming pool is a “room or place actually being used as a dwelling” does not appear to have arisen, nor do counsel appear to have been given an opportunity to make submissions on it. The same may be said for the issue of the appeal judge’s jurisdiction to make the remedial order he made. While the foregoing errors may amount to reversible error in themselves, I do not propose to deal with the appeal on that basis. I am persuaded that the appeal judge erred in his determination of the issues outlined above on their merits and that the appeal should be allowed.
[32] I say this for the following reasons.
A “Room or Place Actually Being Used as a Dwelling”
[33] The appeal judge concluded that Ms. Davis’ backyard swimming pool constitutes a “room or place actually being used as a dwelling” as contemplated by s. 437 of the Municipal Act and therefore that the City required either the consent of the occupier or a warrant – neither of which it had – to enter upon Ms. Davis’ premises. I disagree.
[34] The Municipal Act and the Building Code Act provide a framework within which municipalities may pass by-laws permitting their officials to enter upon property for purposes of inspection, without consent and without a warrant, subject to certain qualifications (“the right of entry provisions”). The City of Guelph has passed such a by-law.
[35] For these purposes, the relevant statutory provisions are the following:
The Municipal Act
Power of entry re inspection
(1) A municipality has the power to pass by-laws providing that the municipality may enter on land at any reasonable time for the purpose of carrying out an inspection to determine whether or not the following are being complied with:
A by-law of the municipality passed under this Act.
A direction or order of the municipality made under this Act or made under a by-law of the municipality passed under this Act.
A condition of a licence issued under a by-law of the municipality passed under this Act.
An order made under section 431.
Restriction re dwellings
- Despite any provision of this Act, a person exercising a power of entry on behalf of a municipality under this Act shall not enter or remain in any room or place actually being used as a dwelling unless,
(a) the consent of the occupier is obtained, the occupier first having been informed that the right of entry may be refused and, if refused, may only be made under the authority of an order issued under section 438, a warrant issued under section 439 or a warrant under section 386.3;
(b) an order issued under section 438 is obtained;
(c) a warrant issued under section 439 is obtained;
(d) a warrant issued under section 386.3 is obtained;
(e) the delay necessary to obtain an order under section 438, to obtain a warrant under section 439 or to obtain the consent of the occupier would result in an immediate danger to the health or safety of any person; or
(f) the municipality has given notice of its intention to enter to the occupier of the land as required under subsection 435 (2) and the entry is authorized under section 79, 80 or 446.
The Building Code Act
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.
[36] The City’s By-Law No. (2009) – 18776, Power of Entry By-Law, mirrors these statutory permissions and qualifications.
[37] The statutory right of entry provisions and the City’s by-law constitute a regulatory administrative power of entry designed to enable municipal officials to monitor and inspect premises for compliance with municipal by-laws, licensing requirements, standards, directions and orders. They are enacted for the safety and protection of the public: see Comité paritaire de l’industrie de la chemise c. Jonathan Potash, [1994] 2 S.C.R. 406, at p. 419; Orillia (City) v. Nicol (1997), 114 C.C.C. (3d) 570 (Ont. C.A.), at paras. 9-10. They accomplish this purpose – while at the same time respecting the enhanced privacy rights in a home – by enabling those officials to enter upon a person’s property without the need for consent or a warrant unless the place being entered is a “room or place actually being used as a dwelling.”
[38] In my view a “room or place actually being used as a dwelling”, for these purposes, is a building, room or physical structure that is actually being occupied and used as a residence or live-in accommodation. A “dwelling” in this sense does not include a backyard swimming pool – in this case, Ms. Davis’ swimming pool – which is an amenity exterior to the building or structure in which she lives and incidental to its use. This interpretation is consistent with the regulatory right of entry provisions in the Municipal Act, the Building Code Act, and the by-law, and their purpose, as described above. Were it otherwise, a municipality’s right of entry could readily be frustrated by recalcitrant owners and occupiers who refused consent and who camouflaged their non-compliant activities in a manner that made it difficult for municipal officials to obtain a warrant.
[39] The jurisprudence has drawn a distinction between a private dwelling or home and a person’s backyard or other structure on the basis that there is a significantly reduced expectation of privacy in the latter. It also draws a distinction between the criminal law and municipal regulatory law for Charter and constitutional purposes: see R. v. Puskas, 36 O.R. (3d) 474 (Ont. C.A.), at paras. 17-18; Nicol, at paras. 9-10.
[40] The fundamental principles of statutory interpretation direct that the words of a statute be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: see Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, per Iacobucci J. at para. 21; see also Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para.26, and the cases cited therein. In the case of s. 437 of the Municipal Act, some assistance may also be found in the principle that says words may take their meaning from the words with which they are associated – the euisdem generis rule.
[41] Here, the word “room” is significant. A swimming pool is not “a room” although it may be a “place”. But the word “place” must take some of its colour from the word preceding it – “room” – in my view. “A room” in this context connotes a living space and therefore “a place” in this context does as well. Both must be “actually being used as a dwelling.” “Dwelling” as well takes its meaning from the words preceding it, both of which speak to the notion of a living space. The words “actually being used” suggest that the room or place must be presently and for practical purposes being used as living space.
[42] Ms. Davis’ back yard swimming pool is consistent with none of these indicators.
[43] There is no definition of the word “dwelling” in the Municipal Act or in other Ontario legislation. However, “dwelling unit” is defined in a number of Ontario and federal enactments and regulations – always in a way that carries the sense of a residence or domestic establishment where people typically eat, sleep and live. Perhaps most closely associated with the present circumstances are the regulations under the Building Code Act (O. Reg. 350/06) itself, which define dwelling unit to mean “a suite operated as a housekeeping unit, used or intended to be used as a domicile by one or more persons and usually containing cooking, eating, living, sleeping and sanitary facilities”: see also the Planning Act, R.S.O. 1990, c. P.13, s. 33(1); the Architects Act, R.S.O. 1990, c. A.26, s. 11(6); the Criminal Code, R.S.C. 1985, c. C-46, s. 2; the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, s. 231. Indeed, the word “unit” might easily be replaced by the word “place” in these definitions, in my view – a “dwelling place” instead of a “dwelling unit.” An exterior swimming pool is not such a unit or place.
[44] At the same time, the foregoing interpretation of the word “dwelling” is also consistent with the way in which that word is defined in municipal regulatory provisions in other provinces. For example:
Nova Scotia
Matrimonial Property Act, R.S.N.S. 1989, c. 275, s. 2(d):
In this Act,
“dwelling” includes a house, condominium, cottage, mobile home, trailer or boat occupied as a residence. [Emphasis added.]
Health Protection Act, S.N.S. 2004, c. 4, s. 3(a):
In this Act,
“dwelling” means a building or a portion of a building that is occupied and used as a residence and includes a house, condominium, apartment, cottage, mobile home, trailer or boat that is occupied and used as a residence. [Emphasis added.]
Manitoba
Fumigation and Pest Control Regulation, Man. Reg. 323/88R, s.1:
In this regulation,
“house” or “dwelling” means any building, hut, or tent used for human habitation whether that use is permanent or temporary, and whether it is stationary or movable, and includes also any school or factory in part so used.
Dwellings and Buildings Regulation, Man. Reg. 322/88R, s. 1:
In this regulation,
“dwelling” means a building or other structure all or part of which is used, or intended to be used, for human habitation.
[45] All of these suggest that when legislators and regulators resort to the word “dwelling” they do not intend it to encompass structural amenities such as outside backyard swimming pools.
[46] The appeals judge referred to a number of authorities in arriving at the contrary conclusion. Those authorities do not support his view, however. They are all distinguishable and do not address the issue whether a backyard swimming pool constitutes a place used as a dwelling.
[47] For instance, while Balon v. SGI Canada, 2004 SKPC 104, 226 Sask. R. 141, did concern a swimming pool and the issue whether an insurance policy covered moisture damage in a room containing the pool, the pool was an interior pool and therefore was clearly within a room or place used as a dwelling. The other authorities referred to by the appeal judge either did not involve swimming pools at all (Lehmann v. Co-operators General Insurance Co., 2009 MBQB 6, 71 C.C.L.I. (4th) 135), or the insurance policy in question expressly included swimming pools as part of a dwelling (Klenk v. Saskatchewan Government Insurance, 2009 SKPC 96, 339 Sask. R. 211) – a case dealing with coverage for garage doors) – or the cases involved other structures that were considered, like swimming pools, to be incidental to or ancillary to the use of a single family dwelling, but were not found to be part of the dwelling: a skate board ramp (A.B. Eight Holdings, Ltd. v. West Vancouver (Dist.) (1987), 16 B.C.L.R. (2d) 129 (C.A.)); a motorbike practice ramp (R. v. Mane-Tail Land Development Ltd., 2007 NSSC 173, 255 N.S.R. (2d) 376, at paras. 19-20); a garage/stable for three horses (Oliver v. Eastern Newfoundland Regional Appeal Board, 2010 NLTD 30, 301 Nfld. & P.E.I.R. 301). Boudreau v. Viola, 2007 QCCS 1082, J.E. 2007-818, had a link to a swimming pool but had nothing to do with whether that pool was part of a dwelling; it concerned a dispute between a swimming pool owner who planted a row of trees on her property for the purpose of protecting her privacy, and the pool-owner’s neighbours who argued that the trees were interfering with their right to a pleasant view of the neighbourhood.
[48] In Puskas, at paras. 15-17, this Court expressly distinguished between a dwelling and a backyard for purposes of assessing the implications of a warrantless search. Although the case is decided in the criminal law context, the same underlying concerns that apply to the entry of municipal officials into a person’s home or dwelling, as opposed to other parts of the person’s lands, are in play. Respectfully, rather than being distinguishable, as the appeal judge found, the distinction drawn in Puskas is consistent with the foregoing interpretation of “dwelling.”
[49] In summary, a “room or place actually being used as a dwelling”, for purposes of s. 437 of the Municipal Act and the City By-law, is a building, room or physical structure that is actually being occupied and used as a residence or live-in accommodation. A backyard swimming pool – an exterior amenity the use of which is incidental to the residence – is not a dwelling.
The Charter
[50] That being the case, no Charter issue arises because the City officials were entitled to enter onto the respondent’s property without her consent to determine whether the City’s by-laws or its orders or directions were being complied with, pursuant to the City’s right of entry by-law enacted pursuant to s. 436 of the Municipal Act. The appeal judge’s concern, and his negative findings with respect to the apparently high-handed manner in which the various City officials entered upon the Davis property over the years – particularly in May and June 2006, and in the case of Mr. Reynen and Mr. Jamieson in May and August, 2009 – and what they did upon entry, are of little relevance as a result.
[51] Because the Charter is not applicable, the appeal judge erred in excluding the evidence of the Property Standards Inspector, Mr. Jamieson, and the By-law Enforcement Officer, Mr. Borthwick, from his consideration. That evidence amply supported the City’s decision to serve the Repair Notice and to take the steps it did in relation to Ms. Davis’ property.
Jurisdiction To Make The Order
[52] The appeal judge ordered that the City and Ms. Davis share the costs of repairing the pool in proportions to be determined by him. While it is not necessary to decide the issue, given the foregoing determination, the appeal judge did not have the authority to make such an order under the Building Code Act, in my view.
[53] Section 15.2(2) and s. 15.3 of the Building Code Act provide the framework for the orders that may be made and for what may be done in the appeal process relating to those orders. They state:
Inspection of property without warrant
15.2(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.
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:
Confirm, modify or rescind the order to demolish or repair.
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.
[54] The appeal judge has the same powers and functions as the Property Standards Committee. That Committee has all the powers and functions of the Property Standards Officer and may either confirm, modify or rescind the order to demolish or repair or extend the time for complying with the order. A Property Standards Officer may make an order providing for the matters set out in subsection 15.2(2), including an order that if the repairs are not carried out within the time prescribed, the municipality may carry them out at the owner’s expense. But the officer has no authority to require the municipality to share the costs.
[55] The appeal judge, therefore, had no authority to require the municipality to share the costs.
[56] There is another reason why the order ought not to have been made. Ms. Davis had commenced a civil action against the City in the Superior Court claiming damages in the amount of $75,000, representing the costs of repairing the pool. On February 16, 2010, Herold J. dismissed her claim. The question of the City’s responsibility for repairing the pool had already been determined against her in an action involving the same parties and the same issue, and was therefore res judicata.
Bias
[57] One further issue remains to be discussed.
[58] Mr. Reynen issued the Repair Order on May 26, 2009. He did so in his capacity as Property Standards Officer and as the Manager for Inspection Services for the City. Earlier, however – in August, 2006, and in a different capacity as a City Building Inspector and by-law enforcement officer – Mr. Reynen had been one of those attending Ms. Davis’ property and directing that the pool be drained and the other remedial work about which Ms. Davis complains, be done. The appeal judge found, at para. 213, that:
... Mr. Reynen’s decision on May 26, 2009, to order Ms. Davis to repair her pool at her own expense was invalid by reason of his earlier responsibility for the unfairly made decision to drain the pool, which she claimed had caused the damage in question, and which was the subject of a pending lawsuit in which she sought to hold the City responsible for the repairs. The interest Mr. Reynen held, both personally and professionally, in vindicating his previous decision caused a reasonable apprehension of bias in his decision as to who should be responsible for the cost of repairs. [Emphasis added.]
[59] And later stated, at para. 219:
In the present case, Mr. Reynen had been personally involved in the decision to drain Ms. Davis’ pool. Ms. Davis alleged, in an action that was still pending, that that decision had caused the damage to her pool. Mr. Reynen was performing a quasi-judicial function in deciding, not only that the pool should be repaired, but that Ms. Davis should undertake the repairs or that the City would do so at her expense. I conclude that a reasonable person, with knowledge of the circumstances, would conclude that Mr. Reynen would have a pre-disposition to validate his previous decision by holding Ms. Davis, rather than the City, responsible for the repairs to her pool.
[60] There are a number of difficulties with this conclusion.
[61] First, whether or not the evidence supports the appeal judge’s view that the original decision to drain Ms. Davis’ pool was “unfairly made,” the appeal judge appears to have been under the misapprehension that Mr. Reynen was responsible for that decision. He was not. The original decision to drain the pool to a level of 6” was made on June 15, 2006, by Mr. Borthwick, after consultation with an outside company specializing in swimming pools; the pool was drained in accordance with the advice given at that time. Although Mr. Reynen was aware, in his capacity as Building Inspector, that Mr. Borthwick had attended the Davis premises in June to carry out earlier work relating to a Notice of Violation under the Standing Water By-law, there is no evidence to indicate that he had any involvement in the Notices that were issued or decisions made with respect to them prior to his own first attendance on August 9, 2006.
[62] On that date, Mr. Reynen attended at the Davis property and, when no one responded to his knock, he left a notice indicating that City personnel would attend the following day to carry out the remedial work required to be done under an earlier August 2 Notice of Violation under the City’s Standing Water By-Law, issued by Mr. Borthwick. The following day, he attended again and directed City staff, including Mr. Borthwick, to empty the pool of the remaining standing water as it was in contravention of the Standing Water by-law. I note, however, that it was on June 15, under the direction of Mr. Borthwick, that the major draining of water from the pool – about which Ms. Davis complains mainly – had already taken place.
[63] Secondly, there is no evidence to suggest that Ms. Davis’ pending law suit against the City, and which did not name Mr. Reynen as a personal defendant, had any bearing whatsoever on the decision to issue the Repair Order in August 2009. I observe in passing that by the time the appeal judge heard the appeal, Herold J. – to the knowledge of the appeal judge – had already given his decision dismissing Ms. Davis’ action against the City for damages for the cost of the repairs. Herold J. found that it was impossible to conclude that anything the City or its agents had done “either on June 15th, 2006, or August 10th, 2006, or at any other time during the course of the period covered by this litigation, did anything to cause any damage to Ms. Davis’ property.”
[64] Thirdly, there is nothing in the conduct attributed by Ms. Davis to Mr. Reynen that could found a conclusion that he had a personal bias towards her. That evidence consists of essentially two things. Ms. Davis states that she complained to the City in letters sent to the Mayor and to Mr. Reynen, but received no response. The appeal judge accepted, however, that Mr. Reynen did not respond on the advice of his superior, the Chief Building Inspector, Mr. Poole. Ms. Davis contends that she had a number of telephone conversations with Mr. Reynen during which he was discourteous to her (once suggesting that she had complained to the Mayor) and, in particular that she had two conversations with him on August 9 and 10, 2006 in which he refused her request that he postpone the August 10 attendance so that she could have her expert attend.
[65] Mr. Reynen does not recall these conversations but there was some evidence on the late-filed audio tape that persuaded the appeal judge that the August 10 conversation took place. Taken at its highest in favour of Ms. Davis, however, this evidence is not an indication that Mr. Reynen bore any personal animus towards her, or, indeed, that he was doing anything other than acting in accordance with his statutory duties as a City officer.
[66] It must be remembered that Ms. Davis had failed to comply with Notices of Violation on May 31, 2006, August 2, 2006, June 22, 2007, August 13, 2007, May 26, 2008 and May 15, 2009 prior to the Repair Order being issued on May 26, 2009. If Mr. Reynen was being firm or even expressing frustration, his position was not unreasonable given the history.
[67] The appeal judge made no finding of bad faith.
[68] In the end, however, the conclusion of bias was simply wrong in law on this record, in my view. Apart from what is dealt with above, there is nothing to suggest that Mr. Reynen had a “personal” interest in vindicating his previous decision. Nor is there anything to indicate that in issuing the Repair Order he acted in his professional capacity other than on the basis of facts presented to him by Mr. Jamieson, the Property Standards Inspector who had attended at the Davis premises on May 14, 2009. Those facts indicated that the conditions at the property posed a hazard to persons in the vicinity of the swimming pool in the event that further collapse of the structure occurred. There was ample evidence to support that position.
[69] The appeal judge concluded that Mr. Reynen was exercising a quasi-judicial function and that the traditional “reasonable apprehension of bias” test applied. He cited the well-known statement of de Grandpré J. in The Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:
[T]he apprehension must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
[70] There is no jurisprudence of which I am aware dealing specifically with the test for bias that is applicable in circumstances where a municipal official issues a repair order or an order requiring remedial steps to be taken in order to comply with the municipality’s by-laws. The authorities touch on the conduct of municipal tribunals that are making adjudicative decisions of one sort or another, or – at the other end of the spectrum – with municipal councillors or commissions that are exercising policy-making or purely administrative functions.
[71] It is well settled, however, that the test for bias varies depending upon the functions of the decision maker and the question being decided. For example, in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at pp. 636, 638-39, Cory J. observed that there is a spectrum of decision-making tasks to be considered when determining the question of bias in the administrative law context, and the test to be applied is a flexible one, varying with the nature of the decision making body. At the adjudicative end of the spectrum, the traditional “reasonable apprehension of bias” test will apply in full force. At the other end of the spectrum, however – where the nature of the decision is more of an administrative, policy or legislative nature – the courts have held that a more lenient test, known as the “closed mind” test is applicable: see also TransCanada Pipelines Ltd. v. Beardmore (Township) (2000), 186 D.L.R. (4th) 403 (Ont. C.A.), at paras. 147-150; Pelletier v. Canada (A.G.), 2008 FCA 1, [2008] F.C.R. 40, at para. 55; Chrétien v. Canada, 2008 FC 802, [2009] 2 F.C.R. 417, aff’d 2010 FCA 283, 409 N.R. 193, at para. 67.
[72] I do not know that it is helpful to characterize Mr. Reynen’s decision to issue the Repair Order as a “quasi-judicial” decision. It does not fall neatly into either category described above, but rather somewhere in between. The decision has some aspects of an adjudicative decision – it imposes a by-law standard upon a property owner and has some impact on the rights of the property owner in that respect. However, it is primarily an enforcement decision, not an adjudicative one. It seems to me that the appropriate approach in such circumstances is to apply the reasonable apprehension of bias standard, but not to do so in its strictest form. It should take “more” for the reasonable person to perceive bias on the part of a municipal official issuing an order to enforce a by-law or similar regulation than would be the case where the decision made is closer to the adjudicative end of the scale.
[73] On that basis, I do not see how the conduct attributed to Mr. Reynen – as described above – could, in law, lead to a reasonable and right-minded person, fully informed and viewing the matter in context, realistically and practically, to conclude that his decision was the product of a biased mind sufficient to invalidate the decision. The test cannot be met in law where, as here, a municipal officer before issuing an impugned Repair Order, had done nothing more than be involved in an earlier decision respecting the same disputed by-law violation, engage in some testy telephone exchanges with an irate resident, and decline to postpone further action on the part of the City against the background of years of non-compliance by the resident. Mr. Reynen had an obligation, pursuant to the legislative and regulatory regime that governed his duties on behalf of the City, to enforce the City’s Property Standards By-law and the provisions of the Building Code Act.
[74] I would set aside the appeal judge’s finding of bias against Mr. Reynen.
Disposition
[75] For the foregoing reasons, I would allow the appeal, set aside the order of the appeal judge and restore the order of the City’s Property Standards Committee.
[76] The City is entitled to its costs of the appeal, fixed in the amount of $12,000 inclusive of disbursements and all applicable taxes. We do not think there should be any costs for the proceedings below.
“R.A. Blair J.A.”
“I agree R.G. Juriansz J.A.”
“I agree S.E. Pepall J.
RELEASED: December 06, 2011