CITATION: Cavan Monaghan (Township) v. Kings Custom Homes Incorporated, 2022 ONSC 1888
DIVISIONAL COURT FILE NO.:: DC21/1248
DATE: 20220329
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, J.A RAMSAY AND TZIMAS JJ.
BETWEEN:
CAVAN MONAGHAN (TOWNSHIP)
Appellant
– and –
KINGS CUSTOM HOMES INCORPORATED
Respondent
Michael F. Sirdevan, for the Appellant
Cory Savary, principal of the corporation, for the Respondent
HEARD: at Oshawa, March 24, 2022 by videoconference
REASONS FOR JUDGMENT
J.A. RAMSAY J.
[1] This is an appeal by the chief building official under s.38(3) of the Building Code Act (“the Act”) from the order of Casullo J. under s.38(1) of the Act (Township of Cavan Monaghan v. King’s Custom Homes Incorporated, 2021 ONSC 369). The appellant also seeks leave to appeal from the application judge’s order that the parties bear their own costs, and if leave is given, appeals it as well.
[2] The Act provides:
38 (1) Where it appears to a chief building official that a person does not comply with this Act, the regulations or an order made under this Act, despite the imposition of any penalty in respect of the non-compliance and in addition to any other rights he or she may have, the chief building official may apply to the Superior Court of Justice for an order directing that person to comply with the provision.
(2) Upon the application under subsection (1), the judge may make the order or such other order as the judge thinks fit.
(3) An appeal lies to the Divisional Court from an order made under subsection (1).
[3] The standard of review is correctness on a question of law and palpable and overriding error on a question of fact: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Housen v. Nikolaisen, 2002 SCC 33.
[4] The respondent commenced building a house on his property without a building permit. In discussions with the inspector, he was told that a building permit would not be issued unless he had a better plan, drawn up by an engineer.
[5] On November 29, 2017 the chief building official issued an order under s.8 of the Act requiring the respondent to stop work, apply for a building permit and provide engineer reports. The respondent did not comply.
[6] Construction progressed. On July 24, 2019 the chief building official issued another order to stop work and to demolish and remove all structures. On September 24, 2019 he applied to the Superior Court for an injunction under s.38 of the Act including an order for demolition of the building.
[7] On February 6, 2020 Leibovich J. granted an interlocutory injunction restraining the respondent from continuing any work on the project and ordering him to pay costs fixed at $3,000.
[8] After hearing the application, Casullo J. made the following order on May 20, 2021:
THIS COURT ORDERS that, within 30 days and at its own expense, the Respondent shall retain a professional engineer to carry out an inspection of [the Property] with a view to addressing the Municipality's concerns. Once these concerns are addressed to the satisfaction of the Municipality, and the Respondent has paid $23,444.68 (or $26,919.18 if the Respondent is unable to demonstrate he has paid the "Residential New" and "Plumbing" charges), and the Respondent has revised and resubmitted the general notes, the Municipality shall issue the building permit.
THIS COURT ORDERS that the interim injunction granted by the Honourable Mr. Justice Leibovich on February 6, 2020 shall remain in place until a Building Permit is issued.
THIS COURT ORDERS that the Applicants may take out the Order of Justice Leibovich without the need for the Respondent's approval as to form and content.
THIS COURT ORDERS that the Respondent shall pay to the Applicants the outstanding costs award of $3,000 within 30 days.
THIS COURT ORDERS that, given the mixed success, no costs are awarded in respect of this hearing.
[9] Paragraphs 1, 2 and 5 of the order are challenged on this appeal.
[10] The appellant submits that the judge made the following errors:
a. She considered extraneous factors unrelated to the provisions of the Act in declining to order the respondent to demolish the building;
b. She made an order that is vague and unenforceable;
c. She declined to order the respondent to pay costs in spite of his conduct, even considering the shared success on the Application.
[11] In my view the appeal succeeds on the first ground.
[12] In an application for an injunction under s.38 of the Act, the chief building official is empowered to ask for an order directing the respondent to comply with the Act, the regulations or an order made under the Act. The court is entitled to make such order as it thinks fit.
[13] A number of provisions of the Act provide for a chief building official to order demolition of a building: sections 8(2), 8(3), 15.3, 15.9, 15.10 and 15.10.2. The Act does not give the chief building official authority to order demolition of a building on the sole ground that a building permit has not been issued under s. 8(1). The Superior Court, however, has the power in an application under s.38 to order demolition. In comparable circumstances to the present case, the Superior Court has often made such orders. See, for instance, Gravenhurst (Town) v. Brunton, 2011 ONSC 1799 and Smith-Ennismore-Lakefield (Township) v Tarala, 2016 ONSC 7109.
[14] The application judge declined to order the demolition of the building. She reasoned as follows:
Ordering a complete demolition of the Property will benefit no one, not even the Municipality. If the drawings are any indication, the finished product will be a welcome addition to the community. The environmental impact of the demolition cannot not be ignored, particularly during COVID, where building materials that are in short supply would be bound for the dump. Finally, the Respondent has made some efforts to address the Township’s requirements but remains stubbornly of the view that he is as versed in the requirements of the building code as the CBCO of the Township. Lines are now drawn in the sand. Direction from the court is sorely needed.
[15] In my view the application judge erred in law in basing her decision on her assessment that the building “would be a welcome addition to the community” and on the fact that demolition would create a waste of building materials. These factors are not relevant when considering an application under the Act. What is relevant are the important public interests that the Act and municipal regulation of construction serve, including public safety and consumer protection. What is also relevant is the need to ensure that the provisions of the building code and the Act are enforced. Neither of these matters were considered by the application judge. This too is an error in law.
[16] The respondent takes the position that the permit should have been issued because he did what was required. The judge, supported by ample evidence, did not accept this contention. In any event, the respondent’s remedy was to bring an application before the Building Code Commission under s.24 of the Act or the Superior Court under s.25 of the Act. He did neither. He was not entitled to go ahead and build without a permit.
[17] It is not disputed that the respondent built without a building permit. He continued work after Leibovich J. ordered him to stop. The house sits unfinished and uninspected. The municipality can not take it down and the respondent cannot finish it without taking steps that he has demonstrated he is unwilling to take. The application judge made a real attempt to bring the respondent to reason, but unfortunately he did not take advantage of it during the 10 months since she made her order. An order for demolition is required to enforce the Act and resolve the impasse.
[18] It is not necessary to consider the appellant’s motion for leave to appeal from the application judge’s decision not to order costs. I would allow the appeal and substitute for paragraphs 1, 2 and 5 of the judge’s order an order as follows, which still gives the respondent 60 days to obtain a building permit.
The respondent and its agents and servants are restrained from carrying on any work or construction on the property municipally described as 1414 Bartlett Road, Fraserville, Ontario and legally described as PT LT 5 CON 7 N MONAGHAN DESIGNATED AS PT 1 45R13983; CVN-MIL-NMO, being all of the lands in PIN 28030-0226 (LT) until such time as a building permit has been issued.
The respondent shall demolish, within 60 days, all construction on the property which was carried out without the benefit of a building permit.
If after the expiry of 60 days the respondent fails to demolish the construction carried out on the property without the benefit of a building permit, the Township of Cavan Monaghan is authorized to demolish the construction and to add the costs of such demolition to the tax roll for the subject property.
[19] The court heard from the parties on costs. The respondent, although not represented by counsel, sought, if successful, partial indemnity of $24,900 for the application (70% of $35,576), and $8,543 for the appeal (70% of $12,204). The appellant sought, if successful, partial indemnity amounting to $11,911 for the Application and $6,450 for the appeal.
[20] Given the appellant’s success, the respondent is ordered to pay the appellant forthwith its costs of the application fixed at $11,911 and its costs of the appeal fixed at $6,450.
[21] The appellant may take out an order in terms of this judgment without approval of the respondent.
J.A. Ramsay J.
I agree. _______________________________
Sachs J.
I agree. _______________________________
Tzimas J.
Released: March 29, 2022
CITATION: Cavan Monaghan (Township) v. Kings Custom Homes Incorporated, 2022 ONSC 1888
DIVISIONAL COURT FILE NO.:: DC21/1248
DATE: 20220329
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, J.A Ramsay and Tzimas JJ.
BETWEEN:
CAVAN MONAGHAN (TOWNSHIP)
Appellant
– and –
KINGS CUSTOM HOMES INCORPORATED
Respondent
REASONS FOR JUDGMENT
J.A. Ramsay J.
Released: March 29, 2022