Court of Appeal for Ontario

Date: 2017-10-19 Docket: M48406 Feldman J.A. (In Chambers)

Between

Sutherland Lofts Inc. Applicant (Appellant/Moving Party)

and

Chris Peck, Chief Building Official for the Corporation of the City of St. Thomas, and the Corporation of the City of St. Thomas Respondents (Respondents/Responding Parties)

Counsel

David McGee, acting in person for the moving party

Tom Halinski, for the responding parties

Heard: October 16, 2017

Reasons for Decision

[1] The moving party seeks an extension of time to file its notice of appeal from the judgment of Hockin J., reasons released on June 27, 2017. The judgment found that the applicant's building in St. Thomas, Ontario is unsafe under s. 15.9(2)(b) of the Building Code Act, 1992, S.O. 1992, c. 23. Sutherland v. Peck, 2017 ONSC 3927, 65 C.L.R. (4th) 116. The applicant also seeks an order enjoining the responding parties from proceeding with the demolition of the building pending the appeal.

[2] At the original return of this motion on October 11, 2017, which was adjourned to October 16 at the request of the responding parties, Huscroft J.A. made an order allowing Mr. McGee, the principal of the moving party, to represent it on this motion, which he ably did.

[3] The issues the court considers when determining whether to grant an extension of time to appeal are: (1) whether the applicant formed a bona fide intention to appeal within the time limit; (2) the length of and explanation for the delay; (3) any prejudice to the respondent; (4) the merits of a potential appeal; and (5) whether the justice of the case requires that an extension be given. See, for example: Howard v. Martin, 2014 ONCA 309 at para. 26, 42 R.F.L. (7th) 47 (in Chambers); Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at para. 15, 114 O.R. (3d) 636 (in Chambers); and Rizzi v. Mavros, 2007 ONCA 350 at para. 16, 85 O.R. (3d) 401 (in Chambers).

[4] The responding parties oppose the extension on all grounds. In oral argument, counsel submitted that: (1) the intention to appeal was "at best" uncertain; (2) the explanation provided was insufficient; (3) there is significant prejudice to the City; and (4) the appeal is without merit and is an attempt to re-argue the issues as determined by the application judge.

Intent to Appeal and Explanation for Delay

[5] The first and second grounds consider the intent to appeal and the explanation for the delay. The affidavit material explains that Mr. McGee discussed an appeal with his counsel, Ms. M'Garry, and provided a payment of $2,000 which he said was for disbursements and as a payment towards either filing the notice of appeal or finalizing a settlement. The plan was that Ms. M'Garry, on behalf of the moving party, would propose a settlement to the City, which, if accepted, would obviate the need to appeal. The settlement involved an unnamed buyer who would purchase the property if an agreement could be reached with the town on certain conditions. A settlement offer was sent but an agreement was not reached.

[6] In the meantime, Ms. M'Garry, who has a history of serious illness, became ill and was unable to do work for any clients until sometime in September. She did not file a notice of appeal. The Chief Building Official, Mr. Peck, wrote to the moving party on August 11, 2017 advising that no notice of appeal was received and the City would consider proceeding with demolition. Mr. McGee confirmed that he received the letter, but did nothing as he did not think anything could be done at that time.

[7] Mr. McGee was away on holiday in the second half of July. In September he was in the Caribbean in connection with a property that was affected by a hurricane. Ms. M'Garry tried to reach him during that period but was unable to do so. In early October they finally connected and it was determined that the moving party should bring this motion to try to save its building.

[8] Based on this history, it appears that although the moving party considered an appeal, particularly as a bargaining tactic in its negotiations with the City, it is not clear that it formed an unequivocal intention to appeal. Similarly, the reason for the delay in bringing this motion for an extension does not suggest any urgency on the part of the moving party to try to address the situation. It knew in mid-August that the time limit had passed but nothing was done until early October.

Prejudice to the Responding Parties

[9] The third ground considers the prejudice to the responding parties. The prejudice to the responding parties is in continuing to have the building, found to be unsafe, remain standing while posing a danger to the safety of the public, the continuing deterioration of the building which is open to the elements, and the increasing cost of demolition because of the continuing deterioration. The moving party disputes the finding that the building is unsafe and therefore disputes the claim of prejudice. I do note, however, that the cost of demolition has increased from just over $100,000 to just under $200,000 in under 2 years. I also note that if there were to be any injury to a member of the public, either from collapse or from pieces of brick flying or falling off, the moving party does not have proper insurance in place on the building to respond to any such injury.

Merits of the Potential Appeal

[10] The fourth ground considers the potential merit of an appeal. The moving party's main position is that the application judge erred in law by accepting the opinion evidence of the City's engineering expert consultant, Mr. Harris, rather than the opinions of the moving party's experts as well as the earlier opinions of other experts retained by the moving party over the years. In particular, it asserts that Mr. Harris has maintained the same concern regarding collapse since 2008 and that his concern has not been borne out. At the same time, other experts have refuted the claim of danger to the public. The moving party also asserts that the application judge erred by taking into account three criteria not included in the Building Code Act definition of "unsafe building": (i) the moving party's lack of funds to pay for temporary repairs or to renovate the building; (ii) the failure to insure the building; and (iii) the fact that no renovations have ever been done by the applicant.

[11] I do not accept this submission. The application judge gave detailed and thorough reasons for his finding that the building is unsafe as hazardous to the public. He specifically accepted the opinion of Mr. Harris and rejected the opinions of the applicant's two experts, with reasons. Having found that the building is unsafe, he also noted that because of the three factors to which the applicant objects, there is no prospect that the unsafe condition is going to be remedied by this owner.

[12] I can see no error of law or palpable and overriding error of fact that would allow this court to interfere with the decision of the application judge, and therefore see no potential merit to the appeal.

Justice of the Case

[13] Finally, the court may still grant leave if the justice of the case requires it. This is not such a case. This situation has been ongoing for a number of years with numerous judicial proceedings. In the meantime, the building has continued to deteriorate. At this point, the town has moved the bus terminal from a nearby location and has closed an abutting street because of the safety concerns. There are also restrictions in place on the ability of police and firefighters to enter the building in an emergency because of its dangerous condition. Finally, the failure to properly insure the building for the financial protection of the public exacerbates the potential effect on the public if something were to happen before the building is demolished.

Disposition

[14] In all the circumstances, the motions for an extension of time to file a notice of appeal and for an injunction are dismissed, with costs fixed at $15,000 inclusive of disbursements and HST.

"K. Feldman J.A."

Footnote

[1] The text of s. 15.9(2)(b) is:

(2) A building is unsafe if the building is,

(b) in a condition that could be hazardous to the health or safety of persons in the normal use of the building, persons outside the building or persons whose access to the building has not been reasonably prevented.