Court File and Parties

Ontario Court of Justice

Date: 2018-10-11

Court File No.: Regional Municipality of Durham 162887, 162888, 171383, 171384, 171385, 171386, 171387, 171388

Between:

City of Oshawa

— AND —

Eliza Sau-Ying Shek and Yuen-Ming Shek

Before: Justice of the Peace M. Coopersmith

Heard on: May 7, 2018

Reasons for Judgment released on: October 11, 2018

Counsel:

• R. Vanderlinde, for the prosecution
• No appearance by or on behalf of Eliza Sau-Ying Shek and Yuen-Ming Shek, even though notified of time and place.

Judgment

I. Charges

[1] Eliza Sau-Ying Shek and Yuen-Ming Shek have each been charged under Part III of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended ("POA"), as follows:

• Being the owners of 304 Simcoe Street South in Oshawa, on or about February 21, 2017, failed to comply with a confirmed Property Standards Order issued January 30, 2017, pursuant to subsection 15.2(2) of the Building Code Act, 1992, S.O. 1992, c. 23 as amended ("BCA, 1992"), contrary to section 36(1)(b) of the BCA, 1992;

• Being the owners of 9 Quebec Street in Oshawa, on or about March 31, 2017, failed to comply with a confirmed Property Standards Order issued March 2, 2017, pursuant to subsection 15.2(2) of the BCA, 1992, contrary to section 36(1)(b) of the BCA, 1992;

• Being the owners of 17 Quebec Street in Oshawa, on or about March 31, 2017, failed to comply with a confirmed Property Standards Order issued March 2, 2017, pursuant to subsection 15.2(2) of the BCA, 1992, contrary to section 36(1)(b) of the BCA, 1992; and

• Being the owners of 17 Quebec Street in Oshawa, on or about September 25, 2016, failed to install a smoke alarm in a dwelling unit, pursuant to Article 2.13.2.1(1) in Division B, Part 2 of the Ontario Fire Code, as amended ("Fire Code"), contrary to section 28(1)(c) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, as amended ("FPPA, 1997").

[2] These charges form the basis of the issues to be determined in these proceedings.

[3] For the reasons that follow, I find Eliza Shek and Yuen-Ming Shek guilty under s.36(1)(b) of the BCA, 1992 with respect to the property they owned on February 21, 2017, at 304 Simcoe Street South in Oshawa. I also find both of the defendants guilty under s.28(1)(c) of the FPPA, 1997 with respect to the property they owned on September 25, 2016, at 17 Quebec Street in Oshawa.

[4] I am not satisfied that all of the elements of the March 31, 2017 charges under s.36(1)(b) of the BCA, 1992 with respect to the properties at 9 Quebec Street and 17 Quebec Street in Oshawa have been proven beyond a reasonable doubt. Therefore, I am dismissing these four charges against the defendants.

II. Ex Parte Proceedings - Trial in Absentia

[5] A trial was set for May 7, 2018. On that day, both defendants, along with the legal representative who had previously appeared on their behalf, were paged. None of the parties appeared in the courtroom in response to these pages.

[6] I reviewed the paperwork in these matters and considered section 54 of the POA, which reads:

Conviction in the absence of the defendant

54 (1) Where a defendant does not appear at the time and place appointed for a hearing and it is proved by the prosecutor, having been given a reasonable opportunity to do so, that a summons was served, a notice of trial was given under Part I or II, an undertaking to appear was given or a recognizance to appear was entered into, as the case may be, or where the defendant does not appear upon the resumption of a hearing that has been adjourned, the court may,

(a) proceed to hear and determine the proceeding in the absence of the defendant; or

(b) adjourn the hearing and, if it thinks fit, issue a summons to appear or issue a warrant in the prescribed form for the arrest of the defendant.

[7] I have reviewed the court history in these matters. In the charges under the BCA, 1992, the matters had been in court six times prior to May 7, 2018, including March 22, 2018 when neither the defendants nor any legal representatives appeared for the judicial pre-trial and, hence, a trial date of May 7, 2018 was set. For the charges under the Ontario Fire Code, the same six dates plus three prior court dates, two of which set dates for a trial, were noted on the informations. Therefore, on May 7, 2018, I exercised my discretion under section 54 of the POA and proceeded to hear and determine the proceedings in the absence of the defendants.

III. Joinder of Counts and Defendants

[8] The charges in these matters have been brought on 8 separate informations. Each of the two defendants is charged with the same 4 counts – one count per information. The prosecution requested one trial, wherein I would hear the case against both defendants with respect to all of the charges at the same time.

[9] Subsection 38(1) of the POA reads:

Joinder of counts or defendants

38 (1) The court may, before trial, where it is satisfied that the ends of justice so require, direct that separate counts, informations or certificates be tried together or that persons who are charged separately be tried together.

[10] The prosecutor advised that the two defendants are co-owners of the three properties in question. All three properties are part of the same land parcel. Furthermore, each of the defendants has been charged with the same 4 charges.

[11] I have considered whether to hear all of these 8 matters together or have them addressed in 8 separate trials. I am satisfied that the defendants have identical interests in each of the properties, each of the four charges have been brought against each of the defendants, three of the four sets of charges are of a similar nature and the fourth charge is related to one of the properties named in one of the other three charges. All of these charges are being brought and prosecuted by the City of Oshawa. I accept that having 8 separate trials is not efficient and would result in duplicative evidence, exhibits, submissions etc. As well, separate trials for each defendant on the same charge has the potential to lead to contrary outcomes for each of the two defendants, outcomes that are less than desirable in the interests of justice. A significant amount of judicial and court resources would be spent to have each charge against each of the defendants heard in separate proceedings. I find no prejudice to the defendants or other obstacles that might otherwise prevent them from bringing full answer and defence to each of the charges within one proceeding. Given my aforementioned comments, the relationship of the defendants to these properties, the nexus of the properties as parts of the same land parcel and the similarity of the charges, I see no need for this to occur in these circumstances. I am satisfied that the ends of justice are best met by granting joinder and hearing all of these charges at the same time.

IV. Submissions

[12] Municipal Law Enforcement Officers Kyle Campbell and Zachary Clark and Oshawa Fire Services Captain Kevin Dickinson testified for the prosecution. Numerous exhibits were entered by these witnesses. I have carefully reviewed and considered all of this evidence and have made my findings below.

[13] The prosecution submits that the charges laid pursuant to the BCA, 1992 are strict liability offences, whereby the defendants can avail themselves of a due diligence defence once the offences have been proven beyond a reasonable doubt.

[14] Evidence was provided by the Municipal Law Enforcement Officers with respect to the properties located at 304 Simcoe Street South, 9 Quebec Street and 17 Quebec Street in the City of Oshawa. As a result of complaints from tenants and members of the public, the Municipal Law Enforcement Officers attended for inspections of the common elements of these three properties. They did not enter into any of the dwelling units. Based on the Officers' inspections of each of the properties, Property Standards Orders were properly issued and served pursuant to s.15.2 of the BCA, 1992, as well as site posted at 9 Quebec Street and 17 Quebec Street. Service was effected by registered mail, in accordance with s.27 of the BCA, 1992. Under s.15.6 of the BCA, 1992, there were no appeals to the Property Standards Committee. Therefore, the Orders were confirmed pursuant to s.15.3(2). Non-compliance with the three Orders remained after the respective deadlines for compliance. Section 36 of the BCA, 1992 creates an offence in the event of a contravention of that Act.

[15] The prosecution further submits that the offences under the Fire Code also are strict liability offences and once they have been proven beyond a reasonable doubt, the defendants have the opportunity to bring forth a due diligence defence. Under s. 1.2.1.1. of O. Reg. 213/07 - Fire Code, the owner is responsible to carry out the provisions of the Code. On September 25, 2016, the defendants owned 17 Quebec Street in Oshawa. Captain Dickinson provided evidence about a fire at that building. On September 25, 2016, upon entering into the smoky apartment, he heard no audible alarms and when the smoke cleared, there was no smoke alarm present. This was a dwelling unit occupied by an elderly, blind woman. The lack of a smoke alarm is contrary to section 2.13.2.1(1) of the Fire Code, which requires that smoke alarms be installed within a dwelling unit.

V. Relevant Legislation

(a) Building Code Act, 1992, S.O. 1992, c. 23, as amended

[16] Eliza Shek and Yuen-Ming Shek have been charged pursuant to subsection 15.2(2) of the Building Code Act, 1992, S.O. 1992, c. 23, as amended. Section 15.2 reads:

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 in a location visible to the public.

[17] Other relevant BCA, 1992 provisions are:

Municipal property standards

15.1 (1) In sections 15.1 to 15.8 inclusive,

"committee" means a property standards committee established under section 15.6; ("comité")

"occupant" means any person or persons over the age of 18 years in possession of the property; ("occupant")

"owner" includes,

(a) the person for the time being managing or receiving the rent of the land or premises in connection with which the word is used, whether on the person's own account or as agent or trustee of any other person, or who would receive the rent if the land and premises were let, and

(b) a lessee or occupant of the property who, under the terms of a lease, is required to repair and maintain the property in accordance with the standards for the maintenance and occupancy of property; ("propriétaire")

"property" means a building or structure or part of a building or structure, and includes the lands and premises appurtenant thereto and all mobile homes, mobile buildings, mobile structures, outbuildings, fences and erections thereon whether heretofore or hereafter erected, and includes vacant property; ("bien")

"repair" includes the provision of facilities, the making of additions or alterations or the taking of any other action that may be required to ensure that a property conforms with the standards established in a by-law passed under this section. ("réparation")

Adoption of policy

(2) Where there is no official plan in effect in a municipality, the council of a municipality may, by by-law approved by the Minister, adopt a policy statement containing provisions relating to property conditions.

Standards for maintenance and occupancy

(3) The council of a municipality may pass a by-law to do the following things if an official plan that includes provisions relating to property conditions is in effect in the municipality or if the council of the municipality has adopted a policy statement as mentioned in subsection (2):

1. Prescribing standards for the maintenance and occupancy of property within the municipality or within any defined area or areas and for prohibiting the occupancy or use of such property that does not conform with the standards.

2. Requiring property that does not conform with the standards to be repaired and maintained to conform with the standards or the site to be cleared of all buildings, structures, debris or refuse and left in graded and levelled condition.

Appeal of 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.

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.

Service

27 (1) A notice or order required by this Act to be served may be served personally or by registered mail sent to the last known address of the person to whom notice is to be given or to that person's agent for service.

Idem

(2) If a notice or order is served by registered mail, the service shall be deemed to have been made on the fifth day after the day of mailing unless the person to whom the notice or order is given or that person's agent for service establishes that, acting in good faith, through absence, accident, illness or other unintentional cause the notice was not received until a later date.

[18] Section 36 creates offences under the BCA, 1992:

Offences

36 (1) A person is guilty of an offence if the person,

(b) fails to comply with an order, direction or other requirement made under this Act;

(b) Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 and Ontario Regulation 213/07: Fire Code made under this Act

[19] Eliza Shek and Yuen-Ming Shek also are charged under Article 2.13.2.1(1) in Division B, Part 2 of the Ontario Fire Code. Relevant provisions of the Fire Code, made under the FPPA, 1997 are:

Division A:

Owner's responsibility

1.2.1.1. Unless otherwise specified, the owner is responsible for carrying out the provisions of this Code.

Division B:

Installation requirements

2.13.2.1. (1) A smoke alarm shall be installed

(a) if a sleeping area in a dwelling unit is served by a hallway, in the hallway,

(b) if a sleeping area in a dwelling unit is not served by a hallway, between the sleeping area and the remainder of the dwelling unit,

(c) if a sleeping room is not within a dwelling unit, in the sleeping room, and

(d) on each storey without a sleeping area in a dwelling unit.

(2) A smoke alarm shall

(a) be permanently connected to an electrical circuit with no disconnect switch between the overcurrent device and the smoke alarm, or

(b) be battery-operated.

(3) A smoke alarm shall meet the requirements of CAN/ULC-S531, "Standard for Smoke Alarms".

[20] The relevant subsections of section 28 of the FPPA, 1997 are:

Offences

28. (1) Every person is guilty of an offence if he or she,

(c) subject to subsection (2) contravenes any provisions of this Act or the regulations;

(c) The Corporation of the City of Oshawa Property Standards By-law

[21] The relevant provisions of The Corporation of the City of Oshawa, By-law No. 1-2002, Property Standards By-law (14 January 2002), as amended, ("Property Standards By-law") are lengthy. Hence, for practical reasons, I have appended them to my judgment.

VI. Findings and Analysis

[22] Officer Campbell provided certified copies of the Parcel Register that was current to February 24, 2017, along with the Transfer/Deed of Land. These documents were entered into evidence as Exhibits 1(a) and 1(b) respectively. They illustrate that on May 6, 1988, Eliza Sau-Ying Shek and Yuen-Ming Shek purchased, in joint tenancy, the parcel of land that contains properties located in Oshawa, Ontario with the following municipal addresses: 304 Simcoe Street South, 9 Quebec Street and 17 Quebec Street.

[23] Based on this evidence, I am satisfied that between May 6, 1988 and February 24, 2017, the defendants, Eliza Sau-Ying Shek and Yuen-Ming Shek, were the owners of 304 Simcoe Street South, 9 Quebec Street and 17 Quebec Street in Oshawa.

A. Property Standards By-law/Building Code Act, 1992 Offences

[24] Pursuant to s.15.1(3) of the BCA, 1992, the City of Oshawa passed The Corporation of the City of Oshawa, By-law No. 1-2002, Property Standards By-law (14 January 2002), as amended. I am satisfied that this Property Standards By-law applies to the Oshawa properties at issue, as provided by section 1.2.1 of the By-law.

(a) 304 Simcoe Street South in Oshawa

[25] Officer Kyle Campbell has been a Municipal Law Enforcement Officer in Oshawa for approximately 4 years. As such, his duties include the enforcement of by-laws and statutes, including but not limited to the City of Oshawa's Property Standards By-law. He provided his testimony in a straight-forward, consistent and unwavering fashion. Consequently, I accept his uncontradicted evidence as credible and reliable.

[26] Shortly after 10:30 a.m. on January 30, 2017, in response to a complaint, Officer Campbell attended at 304 Simcoe Street South in Oshawa. In accordance with s.15.2(1) of the BCA, 1992, Officer Campbell inspected the common areas of this low rise building and noted 9 deficiencies:

1. There were 3 light fixtures on the ceiling of the 3rd floor common area hallway – all fixtures were missing covers.

2. The north exterior window on the 1st floor common area hallway was missing a pane of glass.

3. The north exterior window of the 3rd floor common area hallway was missing a pane of glass.

4. The east exterior window in the 2nd floor common area stairway was missing screens and was unable to fully close due to an incorrect spray foam insulation application.

5. The floor tiles in the south common area stairwell were not maintained in good repair. The tiles were cracked, broken and deteriorating throughout the entire stairwell.

6. The south common area stairwell contained multiple piles of waste, including empty cups and food containers, cigarette butts, piles of dirt and drug paraphernalia and a dead mouse.

7. The 2nd floor common area hallway contained waste, including cigarette butts, piles of dirt and empty cups.

8. The top hinges of the east exterior door were not secured to the door frame, making it difficult to close and lock the door.

9. The south exterior door was missing a secure locking mechanism.

[27] On January 30, 2017, Officer Campbell issued a Property Standards Order to the defendants regarding the violations at 304 Simcoe Street South, in accordance with s.15.2(2) of the BCA, 1992. It contained reference to the relevant sections of the City of Oshawa Property Standards By-Law, a list of the 9 alleged infractions, the corrective work required and a compliance deadline of February 20, 2017, which was also the final date for giving notice of appeal.

[28] Based on the Parcel Registry and Transfer/Deed current to February 24, 2017, I am satisfied that the defendants, Eliza Sau-Ying Shek and Yuen-Ming Shek, were the owners of 304 Simcoe Street South in Oshawa on January 30, 2017 and February 21, 2017, and that, in accordance with s.15.2(3) of the BCA, 1992, the Order was served on the defendants, as owners of this property. Service of the Order was by registered mail, as provided in s.27 of the BCA, 1992. No appeal, under s.15.3(1) of the BCA, 1992 was filed by the defendants by February 20, 2017; hence, the Order was deemed to be confirmed under s.15.3(2) of the Act.

[29] On February 21, 2017, Officer Campbell returned to the property around 12:22 p.m. He took the following photographs which were entered as exhibits:

1. the exterior of the building;

2. the south stairwell - showing broken and cracked tiles;

3. the south stairwell landing on the 3rd floor - showing repair work needed to the tiles and the filth;

4. the north facing exterior window on the 1st floor - showing missing pane of glass and missing screen;

5. the inside of the south exterior door - showing the lack of an exterior locking mechanism;

6. the 3rd floor light fixture - showing the cover missing; and

7. the stairwell window - showing a missing pane of glass, missing screen and the window did not function correctly.

[30] I am satisfied that the photographs taken by Officer Campbell on February 21, 2017 illustrate that 5 of the 9 deficiencies outlined in the January 30, 2017 Property Standards Order had not been remedied by February 21, 2017:

1. the cover for the light fixtures on the 3rd floor were missing;

2. a pane of glass and screen were missing from the north exterior window in the 1st floor hallway;

3. the east exterior window of the stairwell had not been repaired;

4. the south stairwell and landing had broken tiles;

5. the exterior door on the south side of the building had no secure locking mechanism.

[31] I have reviewed these deficiencies in light of the relevant Property Standards By-law provisions appended below. I accept Officer Campbell's evidence and find that Eliza Shek and Yuen-Ming Shek, as owners of the property located at 304 Simcoe Street South in Oshawa, failed to comply with the January 30, 2017 Property Standards Order, made under subsection 15.2(2) of the BCA, 1992.

(b) 9 Quebec Street and 17 Quebec Street in Oshawa

[32] Officer Zachary Clark has worked as a Municipal Law Enforcement Officer for the City of Oshawa for approximately 8 years. His testimony was straight-forward and reliable and focussed on the properties located at 9 Quebec Street and 17 Quebec Street in Oshawa. The City had received a number of complaints from the public and from tenants. Consequently, in accordance with s.15.2(1) of the BCA, 1992, Officer Clark first inspected these two properties on February 27, 2017.

(i) 9 Quebec Street, Oshawa

[33] On February 27, 2017, at 9 Quebec Street, Officer Clark noted general interior and exterior deterioration and uncleanliness. In particular, he noted the following 14 general deficiencies:

1. The common halls and stairwells were very dirty, with personal items, trash and refuse littering the ground and on the window sills.

2. Walls in the common stairwells and halls were dirty, streaked, stained or defaced by graffiti and in several locations walls were damaged, cracked, had peeling paint or had holes punched into them.

3. Several ceiling light fixtures in the common stairwells were missing bulbs or proper coverings.

4. The windows in the common stairwells were missing panes of glass.

5. Numerous exterior and interior doors were dirty, stained or defaced.

6. Tiles on the common stairs and stairwells had severely worn or damaged finishes.

7. Doors at the front of the building that permit entry into the common halls of the building did not have locking mechanisms to ensure there was not unauthorized access into the building.

8. The wooden trim around the perimeter of the building near the front roof line was damaged and rotting.

9. The wooden trim at the archway to the front entrance of the building was damaged and decaying.

10. Lights at the front entrance and at the rear entrance had burnt out or missing bulbs.

11. No owner/management information was posted in the building.

12. The waste storage area at the rear of the property was messy and dirty, there was debris around the bin and the container itself was being left open.

13. There was considerable accumulation of debris and refuse around the grounds of the property.

14. The driveway and parking area leading to the rear of the lot had potholes and was uneven, posing a threat to pedestrians and vehicular traffic.

[34] In accordance with section 15.2(2) of the BCA, 1992, a Property Standards Order was issued to Eliza Shek and Yuen-Ming Shek on March 2, 2017. It referenced the relevant sections of Oshawa's Property Standards By-law. It also contained the aforementioned 14 alleged infractions and listed 14 corrective work actions that were required to bring the property into compliance with this By-law. The deadline for compliance or for giving notice of appeal of the Order was March 30, 2017. In accordance with s.15.2(3) and s.27 of the BCA, 1992, the Order was served on the defendants by registered mail on March 2, 2017 and also site posted on the property. No notice of appeal, under s.15.3(1) of the BCA, 1992, was received by the Secretary of the Property Standards Committee.

[35] On March 31, 2017, Officer Clark returned to 9 Quebec Street in Oshawa. There had been virtually no discernable attempts at compliance with the Property Standards Order. Officer Clark entered, as exhibits, a series of 19 photographs he took on this visit to the property. I am satisfied that these photographs illustrate non-compliance with various deficiencies outlined in the March 2, 2017 Property Standards Order, contrary to the various relevant sections of the City's Property Standards By-law.

[36] I am not satisfied, however, that the prosecution has proven that Eliza Shek and Yuen-Ming Shek were the owners of the property located at 9 Quebec Street in Oshawa on February 27, 2017, when Officer Clark first inspected this property, or on March 2, 2017, the date the Property Standards Order was issued under subsection 15.2(2) of the BCA, 1992. Officer Clark relied on the certified documents from the Land Registry Offices entered as Exhibits 1(a) and 1(b) by Officer Campbell. This documentation consists of the Parcel Register and Transfer/Deed of Land and covers the period from May 6, 1988 when the defendants purchased the properties, to February 24, 2017 when the documents were prepared. Furthermore, both Municipal Law Enforcement Officers testified that new owners have brought the properties into complete, or near complete, compliance with the three Property Standards Orders. No date was given as to when the current owners purchased these properties or if others had purchased it prior to the current owners. Therefore, the identity of the defendants as the owners of the property located at 9 Quebec Street after February 24, 2017 has not been proven beyond a reasonable doubt.

(ii) 17 Quebec Street, Oshawa

[37] As a result of a series of complaints from the tenants and visitors to the property located at 17 Quebec Street in Oshawa, Officer Clark attended there for an inspection on February 27, 2017 as provided for under s.15.2(1) of the BCA, 1992. He noted the following deficiencies with respect to the City's Property Standards By-law:

1. Front and rear doors of the building had no locking mechanisms to ensure there was not unauthorized access into the building.

2. Numerous exterior and interior doors were dirty, stained or defaced.

3. The common hallways and stairwells were very dirty, with personal items, trash and refuse littering the ground and on window sills.

4. The walls in the common stairwells and halls were dirty, streaked, stained or defaced by graffiti. Also, in several locations the walls had been damaged, cracked, had peeling paint or had holes punched into them.

5. Several ceiling light fixtures in the common stairwells or halls were missing bulbs or proper covers.

6. Windows in the common stairwells were missing panes of glass and/or insect screens.

7. There were severely worn or damaged finishes and tiles on the common stairs and stairwells.

8. The guardrails for the stairs in the common stairwell on the uppermost floor had been damaged and a temporary plywood fix was in place, not complying with the Ontario Building Code.

9. There was a considerable accumulation of debris and refuse around the grounds of the property.

10. The driveway leading to the rear of the lot had potholes and was uneven, posing a threat to pedestrians and vehicular traffic.

11. The waste storage area in the rear of the property was messy, dirty; there was debris around the bin and the container itself was being left open.

12. There was a loose antenna cord/wire dangling down the front of the building.

13. There was no owner/management information posted in the building.

[38] On March 2, 2017, pursuant to s.15.2(2) of the BCA, 1992, Officer Clark issued a Property Standards Order to Eliza Shek and Yuen-Ming Shek. The Order listed the relevant sections of Oshawa's Property Standards By-law. It also listed the 13 abovementioned details of deficiencies and provided a list of 13 corrective work actions required to bring the property into compliance with this By-Law. The deadline for compliance and for giving notice of appeal was set at March 30, 2017. As required by s.27 and s.15.2(3) of the BCA, 1992, the Order was served on the defendants by registered mail on March 2, 2017 and Officer Clark also posted a copy of the Order on the property site. No notice of appeal was received by the Property Standards Committee.

[39] On March 31, 2017, Officer Clark re-attended at 17 Quebec Street in Oshawa. There had been no attempt at compliance. Officer Clark provided 15 photographs he had taken that day that illustrated the non-compliant condition of the property. I have reviewed these photographs in light of the relevant sections of the Property Standards By-law appended below.

[40] I am not satisfied that the prosecution has proven that Eliza Shek and Yuen-Ming Shek were the owners of the property located at 17 Quebec Street in Oshawa on February 27, 2017, when Officer Clark first inspected this property, or on March 2, 2017, the date the Property Standards Order was issued under subsection 15.2(2) of the BCA, 1992. Officer Clark relied on the certified documents from the Land Registry Offices entered by Officer Campbell as Exhibit 1(a) – Parcel Register and 1(b) – Transfer/Deed of Land. As noted above, this documentation covers the period from May 6, 1988 when the defendants purchased the properties, to February 24, 2017 when the documents were prepared. As well, both Municipal Law Enforcement Officers testified that new owners have brought the properties into complete, or near complete, compliance with the three Property Standards Orders. No date was given as to when the current owners purchased these properties or if others had purchased it prior to the current owners. Therefore, the identity of the defendants as the owners of 17 Quebec Street after February 24, 2017 has not been proven beyond a reasonable doubt.

B. Fire Protection and Prevention Act, 1997 / Fire Code

[41] Captain Kevin Dickinson has just completed 21 years with the Oshawa Fire Services. In September 2016, he was assigned to oversee the personnel on one of the two trucks in one of the City's fire stations. As well, his responsibilities embrace fire safety in his jurisdiction, responding to fires, fire rescue, safety programs, fire prevention, etc. I accept his evidence as credible and reliable; it was straight forward and unwavering.

[42] On September 25, 2016, at 5:24 a.m., Captain Dickinson's pump truck was the primary responder to a fire at the apartment building located at 17 Quebec Street in Oshawa. This property is a multi-unit residential complex.

[43] When Captain Dickinson arrived at the property on September 25, 2016, the building had been partially evacuated and people were standing out on the street. The front door was open and Captain Dickinson could see light smoke. From the sidewalk, he heard audible alarms coming from the building. He entered the front door with his crew and ascended a short flight of stairs. He was told that the fire was in the second door on the left. He entered that apartment and observed an elderly woman who was mostly naked and was having difficulty walking. He observed darker smoke as he and his crew donned their air masks, advanced the fire hose into the apartment and searched for any other people and for the source of the fire. Although he should have heard a smoke detector going off in this apartment, he heard no sound. There was a small fire, about eighteen inches around, smoldering on the couch. It was extinguished with a few pails of water from the hose line. Fans were set up to ventilate and blow the smoke from the apartment.

[44] Once the smoke cleared, Captain Dickinson determined that the elderly woman that he had helped out was the only resident in that apartment. The woman was blind. He testified that there were no smoke detectors in her apartment. Captain Dickinson ordered his crew to get a smoke detector and install it.

[45] Based on the certified documentation from the Land Registry Office, entered as Exhibits 1(a) – Parcel Register and 1(b) – Transfer/Deed of Land, I am satisfied that the defendants owned the property located at 17 Quebec Street on the date of the fire, September 25, 2016. As owners of this property, under Division A, Part 1, Article 1.2.1.1 of the Fire Code, Eliza Shek and Yuen-Ming Shek are responsible for carrying out the Code's provisions. Article 2.13.2.1(1) in Division B, Part 2 of the Ontario Fire Code, required the defendants to install a smoke alarm in this apartment at 17 Quebec Street. The smoke alarm can be battery-operated, so long as it meets the requisite standard set out in Article 2.13.2.1(3). I find that the defendants failed to comply with these Fire Code provisions.

VII. Conclusions

[46] Based on all of the evidence before me and for the reasons I have provided, I am satisfied that Eliza Sau-Ying Shek and Yuen-Ming Shek failed to comply with a January 30, 2017 Property Standards Order properly issued to them and confirmed on February 21, 2017, for the property that they then owned at 304 Simcoe Street South in Oshawa. This Order was made in accordance with the BCA, 1992. Therefore, I am satisfied that all of the elements of the offence under s.36(1)(b) of the Building Code Act, 1992 have been proven beyond a reasonable doubt and I find each of the defendants guilty of this charge.

[47] I am not satisfied, though, with proof of ownership of the properties located at 9 Quebec Street and 17 Quebec Street in Oshawa beyond February 24, 2017. Consequently, I am not satisfied beyond a reasonable doubt that Eliza Shek and Yuen-Ming Shek were the owners of these properties on February 27, 2017, when Officer Clark first inspected these properties, on March 2, 2017, when the Property Standards Orders were issued and on March 30, 2017, when the Orders were confirmed. Hence, I cannot say that the Orders were served on the owners of these properties, as required under s.15.2(3) of the BCA, 1992. Therefore, all of the charges under s.36(1)(b) of the Building Code Act against Eliza Sau-Ying Shek and Yuen-Ming Shek relating to 9 Quebec Street and 17 Quebec Street in Oshawa are dismissed.

[48] On September 25, 2016, Eliza Sau-Ying Shek and Yuen-Ming Shek were the owners of the property located at 17 Quebec Street in Oshawa. The Ontario Fire Code, made under the Fire Protection and Prevention Act, 1997 is clear. The owner is responsible for carrying out the provisions of the Code, including Article 2.13.2.1(1) in Division B, which required that a smoke alarm was to be installed in the dwelling unit that is found up a short flight of stairs and the second door on the left at 17 Quebec Street. There was no such smoke alarm present when the fire department arrived there on September 25, 2016. I am satisfied that the defendants contravened a provision of the Fire Code and, hence, all of the elements of an offence under s.28(1)(c) of the Fire Protection and Prevention Act, 1997 have been proven beyond a reasonable doubt. I find Eliza Sau-Ying Shek and Yuen-Ming Shek both guilty of this offence.

Released: October 11, 2018

Signed: Justice of the Peace M. Coopersmith

Appendix – Relevant Excerpts from The Corporation of the City of Oshawa, By-law No. 1-2002, Property Standards By-law (14 January 2002), as amended

Recitals

1. Section 15.1(3) of the Building Code Act, 1992, S.O. 1992, c. 23, authorizes the passing of a By-law for prescribing standards for the maintenance and occupancy of property.

2. The Council for the City of Oshawa deems it desirable to enact and pass a By-law for prescribing standards for the maintenance and occupancy of property within the City, for prohibiting the occupancy or use of such property that does not conform with the Standards and for requiring property that does not conform with the Standards to be Repaired and maintained to conform with the Standards or the site to be cleared of all Buildings, structures, debris or refuse and left in a graded and leveled condition.

3. The Official Plan for the City of Oshawa includes provisions relating to property conditions.

4. Section 220.1 of the Municipal Act, R.S.O. 1990 c. M.45, as amended, authorizes the passing of a by-law imposing fees and charges. Therefore, it is enacted as a by-law of the Corporation of the City of Oshawa by the Council thereof as follows:

Section 1 – Administration, Interpretation and Enforcement

1.2 Scope All Property

1.2.1 This By-law applies to all property in the City of Oshawa unless otherwise indicated herein.

1.3 Enforcement Property Standards Officers

1.3.1 The Council of the City of Oshawa shall appoint Property Standards Officers from time to time to be responsible for the administration and enforcement of this By-law.

1.4 Compliance Comply with Standards

1.4.1 No Owner or Occupant shall use or occupy or permit to be used or occupied any Property that does not conform with the Standards.

Repair or Demolish

1.4.2 The Owner of any Property that does not conform to the Standards shall Repair the Property to conform to the Standards or, alternatively, shall clear the Property of all Buildings, structures, debris and refuse and shall leave the Property in a graded and leveled condition.

Offence

1.4.3 Every Person who contravenes any of the provisions of this By-law is guilty of an offence and, upon conviction, is liable to penalties as provided by the Building Code Act.

1.18 Property Standards Committee

5 Persons Appointed to Property Standards Committee

1.18.1 Council shall appoint at large (by either Resolution or By-law) no fewer than five (5) persons of the City to the Property Standards Committee for a term of office concurrent with that of the appointing Council.

Vacancy

1.18.2 The Council shall forthwith fill any vacancy in membership of the Committee that occurs.

Honorarium

1.18.3 Each member of the Property Standards Committee, appointed by Council, shall be entitled to an honorarium of $50.00 per meeting for his or her attendance at committee hearings.

Appeal of Order

1.18.4 An Owner or Occupant who appeals an Order made pursuant to Subsection 15.2(2) of the Building Code Act shall submit a Notice of Appeal in the time frame and the manner as prescribed in Subsection 15.3(1) of the Building Code Act. All Notices of Appeal shall be accompanied by a non-refundable payment in the amount as prescribed by Schedule "A" to this By-law for the processing of the Appeal.

Section 3 – General Duties and Obligations

Manner of Making Repairs

3.1.2 All Repairs and maintenance of a Property required by the provisions of this By-law shall be carried out in a manner accepted as good workmanship in the trades concerned, utilizing materials suitable and sufficient for the purpose and carried out in accordance with the industry specifications and requirements.

Section 4 – Property Maintenance, Waste Management and Accessory Buildings and Structures

4.1 Property

4.1.1 All Property shall be maintained in a clean and tidy condition so as not to detract from the neighbouring environment or to present a hazard to any Person or Property including removal of (a) Dead or decayed trees or other natural growth, including branches and limbs thereof, or damaged trees that create an unsafe condition; and (b) Dilapidated, collapsed or partially constructed structures that are not currently under construction (for the purposes of this Article, a structure is not currently under construction where no lawful and substantial construction activity has taken place on the structures within the immediately preceding 90 days).

4.2 Surface Conditions Parking Areas and Safe Passage

4.2.1 Driveways, ramps, parking areas and similar areas shall be:

(a) surfaced, resurfaced, Repaired or regraded to provide a safe surface for pedestrian or vehicle use;

(c) maintained so as to provide for safe passage under normal use and weather conditions, day or night.

4.5 Refuse Storage and Disposal Sufficient Receptacles

4.5.1 Every Owner shall provide and maintain sufficient receptacles to contain all garbage, refuse, ashes, recyclable materials and trade waste that may accumulate on a Property between the regular collection days, as designated from time to time by the City. A receptacle includes a plastic garbage bag that conforms to the standards of this Subsection.

State of Receptacles

4.5.2 Every receptacle shall be:

(a) watertight;

(b) manufactured and maintained to prevent the entry of insects, rodents and the escape of odours;

(c) shall be kept closed at all times except when garbage, refuse, ashes or trade waste is being placed therein or removed therefrom;

(d) maintained in a clean and sanitary condition; and

(e) made available for prompt removal in accordance with the municipal garbage collection by-law where applicable.

4.7 Gantries and Antennas Securely Anchored

4.7.1 Gantries, antennae and like structures located within a Property shall be securely anchored and maintained in a structurally sound condition and in good Repair.

Section 5 – Building Standards

Objects or Materials Attached to Buildings

5.1.3 Objects or materials that are attached to or form part of a Building and which have been broken, damaged, or that show evidence of rot or other deterioration shall be removed, Repaired, or replaced. Walls, roofs and other exterior parts of the Building shall be free from loose or unsecured objects, parts or material and improperly secured objects or material and where such objects or material exist, they shall be removed, Repaired or replaced. Repair includes the temporary provision, installation and maintenance of substantial boarding, barricades or other temporary protection.

5.5 Doors, Windows and Skylights Performing Intended Functions

5.5.1 All doors, windows, skylights and shutters (including storm and screen doors and windows) shall be maintained in good Repair and capable of performing their intended functions.

Maintenance

5.5.3 Without restricting the generality of Article 5.5.1, "maintained in good Repair" includes:

(a) the refitting, replacement or Repairing of damaged, decaying or defective exterior doors, windows, frames, sashes, casings, shutters, hatchways or screens;

(b) reglazing cracked, broken or missing glass;

Latching From Within

5.5.5 All openable windows and exterior doors in Apartment Buildings shall be provided with the means of being latched or secured from within.

Doors and Hardware for Apartments

5.5.6 Doors that allow access to or egress from a Dwelling Unit located in an Apartment Building shall be equipped with locks, and shall be maintained in good Repair and in an operable condition.

Screening

5.5.7 All windows in a Dwelling Unit that can be (or are required by the Standards to be) openable shall be provided with screening to effectively prevent the entry of insects.

5.6 Verandahs, Porches, Decks, Loading Docks, Balconies, Stairs, Guards and Handrails Maintained in Good Repair

5.6.1 Every verandah, porch, deck, loading dock, floor, stair, handrail, Guard, balcony (and every appurtenance and surface finish attached or laid thereto) shall be maintained in good Repair.

Idem

5.6.2 Without restricting the generality of Article 5.6.1, "maintained in good Repair" includes:

(a) Repairing or replacing floors, handrails, Guards, treads and risers, including finishes such as linoleum, tile and carpet that contain depressions, protrusions or that are broken, torn, warped, loose or otherwise defective;

(c) repainting or the re-applying of other effective protective preservative.

Handrails & Guards According to OBC

5.6.3 Handrails and Guards for interior and exterior stairways and ramps shall be provided in accordance with the provisions of the OBC and maintained in good Repair and in a safe and structurally sound condition.

5.7 Interior Walls, Ceilings and Floors

Walls, Ceilings and Floors

5.7.1 Every wall, ceiling and floor shall be maintained so as to provide a continuous surface free of holes, cracks, loose coverings or other defects.

Finish

5.7.2 A finish shall be applied to all walls and ceilings where same have been Repaired.

General Cleanliness

5.7.4 Every floor, wall, ceiling, furnishing, appliance, fixture and equipment in a Building (including the interior of Dwelling Units or Lodging Units) shall be maintained in a clean and sanitary condition and free from rubbish or other debris.

5.8 Common Areas Maintained in Good Repair

5.8.1 Common areas in Apartment Buildings, including laundry rooms, recreation rooms, storage rooms, hallways, elevator cages and other shared facilities shall be maintained in good Repair and kept clean and free from health, fire and accident hazards.

Free from Stains

5.8.2 Interior cladding and finishes of floors, walls, ceilings and doors of common areas shall be kept free of stains and other defacement.

5.11 Artificial Lighting

Passageways

5.11.2 Despite Article 5.11.1, passageways and stairways in areas of employment (when in use) and corridors, passageways, doorways, stairways and storage rooms (but not including service, utility and laundry rooms) used by the public or tenants shall be provided with a minimum Level Of Illumination of 50 Lux (4.6 Foot candles).

Kept in Repair

5.11.6 All artificial lighting (including exterior lighting fixtures, lamps and other supports and connections) shall be maintained in good Repair and in a safe working condition.

Section 7 – Standards for Building Services, Systems and Facilities

7.8 Emergency Contact In Apartment Buildings

Telephone Number of Authorized Persons

7.8.1 The Owner of every Apartment Building shall cause:

(a) the name, address and telephone number of the current manager or the Person responsible for the Property, and

(b) the name and telephone number of an authorized Person to contact in case of an emergency on a 24 hour basis

(c) to be posted in a prominent place on or in the Apartment Building that is common to or regularly frequented by the residents therein.