ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-32
DATE: 20121019

BETWEEN:

1574720 Ontario Inc. Applicant/Appellant – and – The Corporation of the Township of Sequin and Deborah Swim, Chief Building Official Respondents

Daniel Wyjad, for the Applicant/Appellant

Michael Miller, for the Respondents

HEARD: October 2, 2012

J.S. O’Neill

REASONS ON MOTION

[ 1 ] On October 2, 2012 I heard argument from counsel for the applicant and counsel for the respondents in relation to a motion which the Applicant filed with the court on September 26, 2012. For the reasons which follow, I would dismiss the Applicant’s motion, and uphold the order of Justice Del Frate dated May 14, 2012.

[ 2 ] I arrive at my conclusion herein for the following principal reasons:

[ 3 ] i. On February 16, 2012, the Respondents filed a motion, returnable March 9, 2012, seeking an order dismissing the within application as well as an order lifting the stay granted by me on May 13, 2011 which stay was extended by order dated June 21, 2011. The matter came on for argument before Justice Del Frate on May 14, 2012 and submissions were made as to whether the order to stay the demolition should be lifted so as to permit the Corporation of the Township of Sequin to demolish the building.

[ 4 ] Justice Del Frate reviewed the Memorandum of Understanding dated October 2011 and ordered that the Applicant had until August 30, 2012 to comply with the Memorandum. He further ordered that if the Applicant failed to comply with the Memorandum and have the building ready for final occupancy by August 30, 2012, the stay was then to be lifted and the Township would be permitted to demolish the building.

[ 5 ] The order of Justice Del Frate was not appealed. I accept, in general, the submissions made by counsel for the Respondents. In short, the collective principles underlining the doctrines of issue estoppel, collateral attack and abuse of process – doctrines by the common law as vehicles to transport and deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection of the integrity for the administration of justice, all in the name of fairness – are applicable in this case.

[ 6 ] ii. Various orders have been made throughout the history of the litigation, either in the first action, CV-09-074 or with respect to the application for a stay – CV-11-032. The court record discloses a long history of extensions, orders amending the construction timetable, and stays of a demolition order. The Memorandum of Understanding of October 2011 followed a number of discussions and most particularly, a meeting with Debbie Swim, Mark Vandermeer, Eric Mack, Dennis Lima, Carla Salt and Dan Duke. Information was exchanged at that meeting and Mr. Duke, the Applicant’s engineer, made it clear that “after the foundation is completed...if it is not properly heated this winter the home will not be salvageable.”

[ 7 ] The Memorandum of Understanding was part of a court managed and supervised litigation process which set out a plan commencing with building plans in October of 2011, and finishing with exterior cladding and a building ready for final occupancy on August 30, 2012.

[ 8 ] It is recognized that the building in fact was not heated appropriately over the winter of 2011/2012. In addition, in his affidavit of September 27, 2012, Mr. Mack summarized briefly the history of proceedings. In paragraph 9, Mr. Mack stated:

“Regretfully, the Applicant/Appellant was not able to comply with the deadlines set out in the said orders and a further endorsement of Justice Del Frate dated May 14, 2012 extended the stay of demolition but required the building to be completed for occupancy by August 30, 2012 failing which the stay would be lifted. A copy of that endorsement is attached to my affidavit as Exhibit “E”.”

[ 9 ] In paragraph 10 of the said affidavit, Mr. Mack went on state:

“Work has progressed on the project but the Applicant/ Appellant simply has not been able to maintain a pace of construction which would have met the deadline established in the order and the building was not ready for occupancy as of August 30, 2012.”

[ 10 ] The history of construction, as well as the history of court orders does not leave this court satisfied on this motion that additional extensions and timetable amendments will be satisfied, in any event, by the Applicant. The long history of delay in this case, relating as it does to issues involving an unsafe building, or a building that might require demolition, is apparent from a review of the court record.

[ 11 ] iii . Mr. Duke filed a letter in support of the motion dated September 20, 2012. In that letter, he stated in part as follows:

“Following placement of the left basement structural floor slab, wood load bearing walls can be constructed to support the floor at the main stair opening and turret bump out essentially restoring the building to a safe condition.”

[ 12 ] Mr. Duke’s letter does not raise any confidence that as at September 20, 2012, the building at 2 Knowles Crescent in Rousseau was in a safe condition, even as late as almost one month following the expiration of the August 30, 2012 date noted by Justice Del Frate.

[ 13 ] I appreciate that Mr. Duke swore an affidavit on September 28, 2012 and that he addressed issues with respect to s. 15.9(2) of the Building Code Act. In his affidavit, he stated that “the building would be deemed safe under the guidelines of the Ministry of Labour Guidelines for a Safe Workplace.” However, Mr. Duke’s letter also raises issues as to whether basement soils have been properly dewatered, whether fencing is indeed “appropriate” to prevent access by unauthorized persons and whether a building that could be restored to a safe condition on September 20, 2012 was in fact in a safe condition on September 28, 2012.

[ 14 ] iv . There also remains the issue of appropriate communications and site inspections involving the Township personnel. For example, it is known that an inspection of the reinforcing steel was not completed as was required in accordance with previous documentation that has been prepared and communicated amongst the parties. For example, in her affidavit sworn October 1, 2012, Debbie Swim stated that Mr. Duke had not been called to do an inspection with respect to pouring one half of the basement slab. Further, as outlined in paragraph 4 of her affidavit, Mr. Duke had not indicated that the soils “are now capable of supporting the weight load only that they have been improved.” In paragraph 10 of her affidavit, Ms. Swim indicated that “the soils remain wet and were not properly dewatered as prescribed by Mr. Duke in his earlier instructions...” At paragraph 11 she went on to state:

“As the photographs included as exhibits in my affidavit sworn September 28 th confirm, the building above the basement has sagged 2″ plus, and the walls have rotted in areas due to the water penetrating the structure.”

[ 15 ] v. Documentation filed at Tab EE and Tab FF of the responding parties record demonstrates on the whole a history and pattern of failure by the Applicant to meet deadlines, beginning as early as September 23, 2009 and ending on August 30, 2012. The long history of delays, despite court intervention, management, supervision, and to some extent control when viewed in its entirety, leads to a conclusion that further deadlines, and important deadlines will likely not be met by the Applicant.

[ 16 ] For all of these reasons, the motion of the Applicant is dismissed and the order of Justice Del Frate dated May 14, 2012 is upheld.

[ 17 ] The parties are entitled to make submissions with respect to the issue of costs. For that purpose they are to contact the Trial Coordinator at Parry Sound and schedule a half day hearing on this issue. Before arguing the cost issues, the parties shall file with the Trial Coordinator, if applicable, a Bill of Costs and a concise summary of their costs submissions.

[ 18 ] Order Accordingly.

Justice J. S. O’Neill

Released: October 19, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: 1574720 Ontario Inc. Applicant/Appellant – and – The Corporation of the Township of Sequin and Deborah Swim, Chief Building Official Respondents REASONS ON MOTION Justice J.S. O’NEILL

Released: October 19, 2012