CITATION: The Corporation of the Township of Perry v. MacKay, 2024 ONSC 2127
DIVISIONAL COURT FILE NO.: DC-23-2191
(Sudbury) DATE: 20240412
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Nishikawa and O’Brien JJ.
BETWEEN:
THE CORPORATION OF THE
Michael F. Sirdevan, for the
TOWNSHIP OF PERRY and MIKE
Appellants
MIKE WILMON, CHIEF BUILDING
OFFICIAL
Applicants/Appellants
– and –
JONATHAN ENGLISH MacKAY and
Respondents not appearing
CELINE AIMEE MacKAY
Respondents/Respondents
HEARD at Sudbury (by ZOOM):
October 11, 2023
REASONS FOR DECISION
D.L. Corbett J.
[1] The Appellants appeal from one aspect of the judgment of S.K. Stothart J. dated January 25, 2023 (2023 ONSC 617), dismissing the underlying application in respect to a dwelling unit constructed within an existing storage unit on the Respondents’ property. The application judge found that the Appellant Wilmon’s inspection of the property was an illegal warrantless search and excluded evidence obtained pursuant to that search.
[2] I would allow the appeal. The Appellant Wilmon was authorized by statute to enter onto the property for purposes of inspection. He acted within the scope of that statutory authority when he approached the storage unit and looked inside it through a window and the application judge erred in concluding otherwise.
[3] The evidence below, including the information obtained by the Appellant Wilmon looking through the window of the storage unit, establishes that the Respondents constructed a dwelling unit in the storage unit. It is not contested that they lacked the required permits to do this work.
[4] The Respondents did not appear on this appeal but did raise procedural objections to the underlying proceeding and to this appeal. Those objections are without merit: as explained by the application judge, the Respondents appear to misunderstand profoundly their rights and obligations, and they responded to the application, and then to this appeal, on the basis of their misunderstanding. Therefore, for the reasons that follow, I would allow the appeal.
Background
[5] The Respondents own property at 50 Gibson Road, Novar, Ontario (the “Property”), which they purchased on April 5, 2021.
[6] Former owners built a storage unit on the Property in accordance with building permit #26/91. A foundation repair permit was issued for this building in 2003. No other pertinent building permits have been issued for the Property.
[7] Prior owners of the Property built a dwelling unit within the building, without a permit, but removed that dwelling unit before selling the Property to the Respondents. The Appellant Wilmon confirmed that this prior unpermitted dwelling unit had been removed during an inspection on July 23, 2020.
[8] The Appellant Wilmon is the Chief Building Official for the Respondent Township. In this capacity, he received information that a dwelling unit had been built within the storage building, as well as two additional separate structures on the Property: a two-storey chicken coop, and a building used as a schoolroom. No building permits were sought or obtained for these works.
[9] Wilmon tried to discuss these issues with the Respondents, first by email (on February 7, 2022) and then by phone message (February 15, 2022). Instead of engaging with Wilmon, the Respondent Jonathan MacKay attended at the Township office on February 16, 2022 and delivered a “No Trespass notice” purporting to exclude the Township and its officials from the Property.
[10] On March 7, 2022, Mr MacKay attended at the Township’s office and delivered a document purporting to bar Wilmon and other Township agents from the property. Wilmon advised MacKay that he would be attending at the Property the following week with OPP officers.
[11] Wilmon attended the Property with OPP to conduct an inspection. The Respondents declined to answer Wilmon’s questions, including questions about whether the storage building was being used as a dwelling.
[12] Wilmon observed from the exterior that it appeared that the storage building was being used as a dwelling: there was artwork in the windows, children’s sleds and toboggans were stacked by the door, and a hot tub was located immediately outside the storage building. Wilmon did not enter any buildings, but he measured the additional structures from the exterior.
[13] On March 10, 2022, Wilmon wrote to the Respondents advising that the storage building could not be occupied as a dwelling unit unless a change of use permit was approved, and permitted conversion work was completed, inspected and approved. He also advised that the other two buildings – the chicken coop and the school building – had been constructed without building permits and should not be occupied until the required approvals and permits were obtained. Wilmon included blank forms for seeking approvals and provided further information about approvals and permits that might be required from the North Bay Mattawa Conservation Authority, the Electrical Safety Authority and the Fire Prevention Officer.
[14] On April 8, 2022, Wilmon went back to the property. During this visit, he looked in a window of the storage building and saw a kitchen and dining area inside. He took photographs through a window to document his observations.
[15] On April 14, 2022, Wilmon issued three orders to comply, one for each structure (one for the storage building, and one for each of the additional buildings). The orders required the Respondents to apply for building permits and a septic application (for the converted storage building) by May 12, 2022. The Respondents did not comply with these orders.
[16] The Appellants then applied to the Superior Court of Justice for orders resulting from the Respondents’ non-compliance with the Building Code and Wilmon’s three orders to comply.
The Respondents’ Position Below
[17] The Respondents defended the application below on the basis of patently unmeritorious arguments:
(a) As owners of the Property in fee simple of, they were entitled to do whatever they want on the Property, without interference or regulation by the Appellants;
(b) The Applicants’ attempts to enforce the Building Code in respect to the Property amounted to an unlawful conversion of the Property to the benefit of the Appellants;
(c) The Building Code does not apply to them;
(d) The Appellants are restricted to overseeing public property held for public use and have no jurisdiction over private property;
(e) There must be an agreement with a private property owner for the Building Code and municipal by-laws to apply to that owner’s property, and since there is no agreement to this effect with the Respondents, the Appellants have no jurisdiction over their property;
(f) The attempt to enforce the Building Code and municipal by-laws against them in respect to the property violates the Constitution Act, 1982 and the Canadian Charter of Rights and Freedoms.
[18] The application judge found these submissions to be without merit (Decision, paras. 51-95). The Respondents did not appeal, and so there is no need for this court to address the Respondent’s unmeritorious arguments that were properly rejected by the Application judge. I would note, however, that trial courts need not provide elaborate reasons for rejecting arguments that someone is not subject to the laws of the land because they are “free” or the Constitution provides that they are to be “without restraint”. These arguments are anarchistic nonsense and should not consume undue time and effort from our trial courts.
The Application Judge’s Decision
[19] The application judge correctly found that the Appellants were entitled to come on to the property to inspect in aid of enforcement of the Building Code Act. The application judge found that the two new buildings (the chicken coop and the schoolroom building) were built without required permits and that Wilmon’s orders to comply in respect to these buildings were lawful and should be enforced. On this basis the application judge granted the Appellants’ application in respect to these two buildings, an order that has not been appealed.
[20] The application judge found that Wilmon’s first inspection of the storage building was authorized by the Building Code Act. Thus, on the basis of this authorized inspection, Wilmon had information from a third party that a dwelling unit had been constructed inside the storage building, and he had seen artwork in the windows, children’s toys stacked by the door, and a hot tub to the rear of the storage building, which tended to confirm that the storage building was being used as a dwelling unit. He also had information that the Respondents had recently built two other structures without permits.
[21] The application judge found, correctly, that the Building Code Act distinguishes between entry onto land and inspection and entry into a dwelling unit: the former does not, and the latter does, require a warrant.
[22] The application judge found that looking in the window of the storage building, and taking photographs of the interior through a window, as Wilmon did on April 8, 2023, was an unauthorized warrantless search of a dwelling unit, contrary to the Respondents’ right to be free from unreasonable search and seizure under the Canadian Charter of Rights and Freedoms. She excluded the evidence obtained through what she determined was an unlawful search and then dismissed the Appellant’s application in respect to the third compliance order issued by the Appellant Wilmon (in respect to the storage unit).
Issue on Appeal
[23] The Appellants argue that looking through a window of a building that is not permitted to be a dwelling unit, for the purpose of ascertaining whether it is being used unlawfully as a dwelling unit, is not an “entry into a dwelling unit” within the meaning of the Building Code Act and is thus authorized by the general power in the Act to enter and inspect property. In the alternative, the Appellants argue that, even without the evidence obtained by the impugned search, the admissible evidence before the Application judge established a basis for the order to comply, and the requested order should have been granted.
[24] I agree with both of the Appellants’ arguments.
[25] The Building Code Act is not a criminal law. It is a regulatory law, intended to ensure that buildings are constructed in accordance with applicable planning, environmental, safety, fire and construction standards. The orders issued by the Appellant Wilmon were orders to comply with the Act, once he had determined that structures on the property were not in compliance with the Act. The non-compliance is a continuing state of affairs: if nothing has yet been done to bring the buildings into compliance, then there is a continuing basis for Wilmon to inspect and order compliance with the Act.
[26] There are two ways in which to view the circumstances of this case. The first is that, prior to the second visit to the property, Wilmon had enough information to conclude, on a balance of probabilities, that the storage building had been converted to the use of a dwelling unit. In this event, Wilmon could have issued an order to comply without the subsequent visit to the property, and the inspection he conducted on that subsequent visit was immaterial to the Application below. In this event, even if the subsequent search was unlawful, the application judge should have granted the Application, there being sufficient admissible evidence to ground it.
[27] Alternatively, if Wilmon did not have enough information to conclude that the storage building was being used as a dwelling unit, he was entitled to assume that it was not. The Respondents never asserted that the building was a dwelling unit, and Wilmon was entitled to presume that the building was not an illegal use until his investigation established otherwise.
[28] An argument could be made that, once Wilmon saw residential use of the premises by looking through the window, he should not have gone further and taking pictures without a warrant. This is not a case where administrative powers of inspection have been misused for the purposes of a criminal or quasi-criminal prosecution. In my view, the power to inspect and to enter premises that are not dwelling units are designed to balance the Appellants’ interests in efficient enforcement with the privacy interests of the Respondents. If the Respondents are not prepared to tell authorities that a building is a dwelling unit, it is unclear to me how they can assert a privacy interest in it as a dwelling unit. Further, the approach taken by Wilmon was actually less intrusive than the alternative approach that would result from the application judge’s decision: had Wilmon applied for a warrant, he surely would have obtained it: he had plenty of information to ground a request for a warrant. That warrant could – and likely would – have authorized Wilmon to actually enter the storage unit and inspect – a process that would have been far more intrusive for the Respondents than the process actually followed in this case. In my view, the Appellants acted reasonably in their efforts to discharge their duty to enforce the Building Code Act in the face of assertions by the Respondents that they were not bound by laws of general application, and even if it was thought that Wilmon should have obtained a warrant, this was not a case where the evidence should have been excluded for a mere error in judgment: the underlying issue of principle – whether there is an unpermitted use being made of the storage unit – will still have to be addressed, and the remedy ordered by the application judge has the effect of extending conflict rather than resolving it.
[29] Wilmon’s authority included looking in a window to try to determine if the premises were a building unit, and documenting his observations, and the application judge erred in concluding otherwise.
Conclusion
[30] I would allow the appeal and grant the Appellants’ application for an order enforcing Wilmon’s third order to comply.
Procedural Issues on Appeal
[31] This appeal arose in the Northeast Region, in which the judicial seat for the Divisional Court is in Sudbury. The subject property is located near Highway 11, north of Huntsville, Ontario, about a 2.5 hour drive from the Sudbury courthouse.
[32] This appeal was scheduled to be heard in Sudbury, and the local administrative judge of the Divisional Court directed that it be heard by ZOOM. The Appellants objected to a ZOOM hearing. They were advised that the mode of hearing was in the court’s discretion, but that if they wished to come to the courthouse to access the ZOOM hearing, they could do so. The Appellants did not log into the ZOOM hearing, as directed, and did not attend at the courthouse for the hearing. The Appellants were given notice of the hearing and offered reasonable options to participate in it; they cannot now complain that they were not heard on this appeal when they failed to follow authoritative directions about the mode of hearing.
Disposition
[33] The appeal is allowed, and an order shall issue, as sought by the Appellants, for enforcement of Wilmon’s third order to comply, on the terms proposed in para. 47 of the Appellants’ factum. The Respondents shall pay costs of the appeal to the Appellants of $8,000.00, inclusive, payable within thirty days.
“D.L. Corbett J.”
I agree: “Nishikawa J.”
I agree: “O’Brien J.”
Date of Release: April 12, 2024
CITATION: The Corporation of the Township of Perry v. MacKay, 2024 ONSC 2127
DIVISIONAL COURT FILE NO.: DC-23-2191
(Sudbury) DATE: 20240412
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, O’Brien and Nishikawa JJ.
BETWEEN:
The Corporation of the Township of Perry and Mike Wilmon, Chief Building Inspector
Appellants
– and –
Jonathan English MacKay and Celine Aimee MacKay
Respondents
REASONS FOR DECISION
D.L. Corbett J.
Date of Release: April 12, 2024