Court of Appeal for Ontario

Date: 2018-01-12 Docket: C63876

Judges: Feldman, Pepall and Huscroft JJ.A.

Between

St. James No. 1 Inc. Applicant (Appellant)

and

Ed VanderWindt, Chief Building Official and The City of Hamilton Respondents (Respondents)

Counsel

Justin Nasseri, for the appellant

Daniell Bartley, for the respondents

Heard and Released

Heard and released orally: January 12, 2018

On appeal from the judgment of Justice David Broad of the Superior Court of Justice, dated May 8, 2017, with reasons reported at 2017 ONSC 2815.

Reasons for Decision

[1] The City of Hamilton decided to reject the appellant's application to demolish a building it owned that had been designated as a heritage building. The city sent a written notice to the appellant, a corporation. The notice was not sent to the registered address of the appellant, but to its sole director at his residential address.

[2] Section 34(4) of the Ontario Heritage Act, R.S.O. 1990, c. O.18 (the "Act"), deems a municipality to have consented to such an application if the council "fails to notify the owner under clause (2)(b) within the time period mentioned in subsection (2)". Section 67(1) of the Act provides for service of documents under the Act. It provides that service is "sufficiently given" if done in one of four ways, including by mail under subsection (1)(b), as follows: "by mail to the last known address of the person to whom delivery or service is required to be made".

[3] The appellant submits that because the city did not serve the notice to the registered address of the appellant, its last known address, the city did not comply with s. 67(1)(b), and therefore the deeming provision took effect.

[4] The application judge responded to this issue by making the following finding at para. 30 of the reasons, as follows:

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.

[5] In our view, on the unique facts of this case, the application judge made no error in that finding.

[6] The appeal is therefore dismissed with costs to the respondent fixed in the amount of $9,000, inclusive of disbursements and HST.

K. Feldman J.A.

S.E. Pepall J.A.

Grant Huscroft J.A.