CITATION: Elbasiouni v. Brampton (City), 2019 ONSC 3524
DIVISIONAL COURT FILE NO. DC-17-70
DATE: 2019-06-06
CORRECTED DATE: 2019-07-23
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.D. Gordon, Backhouse and S.T. Bale JJ.
BETWEEN:
Ahmed Elbasiouni
Appellant
(Appellant in appeal)
- and -
The Chief Building Official (CBO) The Corporation of the City of Brampton
Respondent
(Respondent in appeal)
Self-Represented
Charles Painter, for the respondent
HEARD: April 11, 2019 at Brampton
CORRECTED REASONS FOR DECISION
Corrected Decision: Heard date is amended to April 11, 2019 on first and back pages.
On appeal from the orders of Justice Kofi N. Barnes of the Superior Court of Justice, dated October 2, 2015, with reasons reported at 2015 ONSC 6149, April 3, 2017, with reasons reported at 2017 ONSC 1556, and April 3, 2017, with reasons reported at 2017 ONSC 2088.
S.T. Bale J.
[1] The appellant appealed the respondent’s decision to revoke a building permit which the respondent said had been issued in error. Barnes J. dismissed the appeal. Following the dismissal, the appellant made a number of motions which resulted in the three orders under appeal to this court.
[2] The first of the orders dismissed a motion made by the appellant under rule 59.06(2)(a) for an order setting aside the order dismissing his building permit appeal.
[3] The second order dismissed a second motion made by the appellant for an order setting aside the order dismissing the appeal – this time based on a ground of appeal not raised on the hearing of the appeal.
[4] The third was an order for the costs of the appeal, and the two motions.
The background facts
[5] The appellant applied for a building permit for construction of a duplex. The permit was granted but subsequently revoked. The chief building official revoked the permit because he had been mistaken with respect to the applicable zoning when he issued the permit, and the actual zoning of the property did not permit duplexes.
[6] The appellant appealed the permit revocation pursuant to s. 25 of the Building Code Act. The appeal was dismissed by Barnes J., with reasons reported at 2013 ONSC 5261. At the same time, Barnes J. found that the previous use of the property for a multifamily dwelling was a legal nonconforming use. The appellant had demolished that dwelling in order to build the duplex.
[7] The appellant then appealed the dismissal of his permit appeal to this court. That appeal was dismissed with reasons reported at 2015 ONSC 1801.
[8] Following the dismissal of his appeal to this court, the appellant moved under rule 59.06(2)(a) for an order setting aside the order of Barnes J. dismissing his appeal from the decision of the chief building official, based upon a zoning map which purported to be a schedule to the City of Brampton comprehensive zoning by-law, and which indicated that duplexes were an allowable use on his property. Barnes J. found that the document was not a genuine schedule to the zoning bylaw, and dismissed the motion, with reasons reported at 2015 ONSC 6149. The appellant’s appeal from that dismissal is the first of the three appeals which are the subject of these reasons.
[9] Following the dismissal of his rule 59.06(2)(a) motion, the appellant again moved for an order setting aside the order of Barnes J. dismissing his appeal from the decision of the chief building official. On that second motion, he raised a new ground of appeal – that because the previous use of the property for a multifamily dwelling was a legal nonconforming use, the provisions of the comprehensive zoning by-law relating to duplexes were applicable to his property. Barnes J. dismissed the motion both on the ground that the issue of his entitlement to a building permit was res judicata, and on the merits, with reasons reported at 2015 ONSC 6149. The appellant’s appeal from that dismissal is the second of the appeals which are the subject of these reasons.
[10] Following the dismissal of the appellant’s second motion to set aside the order dismissing his appeal from the decision of the chief building official, Barnes J. awarded the costs of the appeal and the two motions to the respondent, with reasons reported at 2017 ONSC 2088. The appellant’s appeal from the costs order is the third of the appeals which are the subject of these reasons.
The standard of review
[11] The appellate standard of review from lower court decisions is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10 and 36. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, the standard varies. Where there is an extricable legal principle, the standard of review is correctness. Where the application of the correct legal principles to the evidence is in issue, the standard of review is palpable and overriding error.
[12] Palpable and overriding error as a standard of review means clearly wrong, unreasonable, or unsupported by the evidence: L.(H.) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 55f.
Analysis
Appeal from order dismissing motion under rule 59.06(2)(a)
[13] On the hearing of the appellant’s motion under rule 59.06(2)(a), the respondent agreed that if the motion judge found the zoning map put forward by the appellant to be a genuine schedule to the city’s comprehensive zoning by-law, the appellant would be entitled to the reinstatement of his building permit. Accordingly, the only issue for the motion judge to decide was whether the document was genuine.
[14] On this appeal, the appellant argued that the motion judge erred in finding that the zoning map was not genuine, and that he ought to have ordered the trial of an issue with respect to the document’s authenticity. I disagree, for the following reasons.
[15] First, the question of whether the document was authentic is a question of fact. The standard of review on a question of fact is palpable and overriding error. The appellant has not shown the order to have been clearly wrong, unreasonable, or unsupported by the evidence.
[16] The evidence of the respondents’ witnesses was that the zoning map produced by the appellant did not exist in the City’s archive, in any paper or electronic copy of the comprehensive zoning by-law, in any of the 431 prior zoning by-law amendments since it was first enacted, or anywhere else. The city staff members to whom the appellant said he had previously shown the map were unable to recall ever seeing it. The appellant testified that he received the zoning map from the previous owner when he purchased the property, but in his evidence, the previous owner denied giving it to the appellant, or ever having seen it.
[17] Second, the appellant’s position that there should be a trial of an issue relating to the authenticity of the zoning map was not argued on the hearing of the motion, and the process that was employed was comprehensive. It included several interim attendances and directions from the court, numerous affidavits and out-of-court witness examinations, and lengthy oral argument. The appellant was permitted to attend at the city’s archives to examine the original by-law. As the unsuccessful party on the motion, the appellant is not now entitled to re-argue his case, employing a different procedure.
Appeal from motion relating to legal nonconforming status
[18] On this second motion, the appellant argued that because the previous use of the property for a multifamily dwelling was a legal nonconforming use, the provisions of the zoning by-law applicable to duplexes applies to his property. In doing so, he was, in effect, attempting to re-argue his appeal from the decision of the chief building official revoking the building permit.
[19] The motion judge dismissed the motion on two primary grounds.
[20] First, he held that the appeal had already been finally decided, and that the issue of whether the building permit was validly revoked was res judicata. I agree. The appellant exercised his right of appeal under s. 25 of the Building Code Act, and his right of appeal from that decision to this court. He was not entitled to a second appeal under the Act on grounds not argued the first time around.
[21] Second, the motion judge held that even if res judicata did not apply, the motion should be dismissed because the use proposed by the appellant represented an extraordinary intensification of use not protected by the legal nonconforming use status. In doing so, he properly relied on the three-part test set out by the Supreme Court of Canada in Saint-Romuald (City) v. Olivier, 2001 SCC 57:
The Court’s objective is to maintain a fair balance between the individual landowner’s interest and the community’s interest. The landowner overreaches itself if (i) the scale or intensity of the activity can be said to bring about a change in the type of use, as mentioned above, or if (ii) the addition of new activities or the modification of old activities (albeit within the same general land use purpose), is seen by the court as too remote from the earlier activities to be entitled to protection, or if (iii) the new or modified activities can be shown to create undue additional or aggravated problems for the municipality, the local authorities, or the neighbours, as compared with what went before. The factors are balanced against one another.
[22] After purchasing the property, the appellant demolished the previous structure and began construction of a duplex. The motion judge found that the “length, breadth and width” of the new building was of such scale and magnitude that it would go beyond the mere intensification of the pre-existing use, that it would create a use of a different kind, and that as a result, the legal nonconforming use status did not extend to the duplex under construction.
[23] The question of whether the duplex under construction was of such a scale and magnitude as to result in a loss of legal nonconforming use status is a question of mixed fact and law. There is no extricable error in law, and the motion judge’s finding is therefore subject to review on the standard of palpable and overriding error. Again, the appellant has not shown the order to have been clearly wrong, unreasonable, or unsupported by the evidence.
Appeal from order awarding costs to respondents
[24] An award of costs is discretionary, and an appellate court will set aside or vary a costs award only if the court making the order made an error in principle, or the costs award is clearly wrong.
[25] The motion judge awarded the costs of the proceeding to the respondent on a full indemnity basis, having found that the appellant sought to perpetuate a fraud on the court by producing a false document, and that he had levelled unproven allegations of fraud and conspiracy against the respondent. He held that an elevated costs award was necessary to deter the appellant from using the court system to adjudicate frivolous claims. I note that the zoning map tendered by the appellant purported to be a valid instrument of municipal law.
[26] The appellant’s position on this issue is that the costs order should be set aside because the motion judge erred in finding that he had put forward a fraudulent document. I have already disposed of that argument.
[27] There is no basis to interfere with the order as to costs. The motion judge considered the appropriate factors in fixing costs, made no error in principle, and the order is not plainly wrong.
Motion to admit fresh evidence
[28] The Supreme Court of Canada set out a four-part test for the admission of fresh evidence on appeal in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759 at 777:
- The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, 1964 43 (SCC), [1964] S.C.R. 484.
- The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
- The evidence must be credible in the sense that it is reasonably capable of belief, and
- It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
Although the orders under appeal were made on motions rather than at trial, the same principles apply.
[29] The documents which the appellant sought to introduce as fresh evidence are aptly described in his notice of motion as follows: “legislations, regulations surrounding the case, and persuasive policies and provisions, or other evidence from the Court’s file that the respondents are familiar with.” The appellant also asked that the chief building official be compelled to testify.
[30] Following the receipt of oral argument, we dismissed the motion.
[31] The appellant was entitled to refer to the legislation, and the court documents, without including them in a motion to admit fresh evidence. The remainder of the documents, and the evidence which the appellant sought from the chief building official, were not relevant to the issues before the motion judge. Rather, they related to the appellant’s argument that improper influence on the part of the municipal council had impeded the chief building official’s ability to independently exercise his authority, and fulfil his duties, with honesty and integrity. Perhaps acknowledging that this issue would have no bearing on his right to a building permit, the appellant, in oral argument, said that he was making this argument not for himself, but rather to address a gap in the law, in the public interest.
Disposition
[32] For the reasons given, I would dismiss the appeal. In the event that the parties are unable to agree on costs, the court will consider brief written argument, provided that it is delivered to the Divisional Court office at Brampton, within 20 days of the release of these reasons.
Bale J.
I agree
R.D. Gordon R.S.J
I agree
Backhouse J.
Released: June 6, 2019
CITATION: Elbasiouni v. Brampton (City), 2019 ONSC 3524
DIVISIONAL COURT FILE NO. DC-17-70
DATE: 2019-06-06
CORRECTED DATE: 2019-07-23
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.D. Gordon, Backhouse and S.T. Bale JJ.
BETWEEN:
Ahmed Elbasiouni
Appellant
-and-
The Chief Building Official The Corporation of the City of Brampton
Respondent
CORRECTED REASONS FOR DECISION
Released: June 6, 2019