SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 1356924
DATE: 2013/05/30
RE: ARLENE GREGOIRE, CHIEF BUILDING OFFICIAL FOR THE CITY OF OTTAWA, Applicant
AND:
J. CLAUDE LAUZON, JOHN COOKE, P. ENG. AND JOHN COOKE AND ASSOCIATES LTD., Respondents
BEFORE: Mr. Justice Robert J. Smith
COUNSEL: Ronald F. Caza, Stephanie V. Lewis, Counsel for the Applicant
Charles M. Gibson, Ian Houle Counsel, for the Respondent
HEARD: May 23, 2013
ENDORSEMENT
[1] Mr. Lauzon (“Lauzon”) has brought a motion for a stay of my decision dated May 8, 2013, ordering John Cooke (“Cooke”) to provide the City of Ottawa with a copy of his three and one half page draft structural heritage engineering report (“the Cooke report”), prepared at Mr. Lauzon’s request.
Test
[2] The test to be applied to determine whether to grant a stay were outlined by the Supreme Court in RJR-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199 and Baier v. Alberta, 2006 SCC 38, [2006] 2 S.C.R. 311, and are as follows:
a. There is a serious issue to be tried;
b. Irreparable harm will result if the stay is not granted; and
c. The balance of convenience favours granting a stay.
Serious issue
[3] The City concedes that the motion for a stay of my decision raises a serious issue to be tried, namely it is arguable whether the CBO of the City (“City”) had jurisdiction to order Mr. Cooke to provide it with a copy of his heritage engineering report related to the Cumberland Building (“Building”).
Irreparable Harm
[4] Lauzon argues that if the City reviews the Cooke report before the appeal to the Divisional Court is heard, he will suffer irreparable harm as the appeal would be moot and the information in the Cooke report would already be known by the City before it makes a further decision and issues a further order concerning the Building.
[5] I agree with the Lauzon’s submission that it is the nature of the harm rather than its magnitude that matters. If the appeal involved an issue of whether the Cooke report was privileged and contained sensitive important confidential information then irreparable harm would occur if it was disclosed before the merits of the appeal could be heard. However, this is not the situation as Lauzon is not appealing my decision that the report was not subject to litigation privilege.
[6] The other cases relied on by Lauzon involve situations where there was an agreement between the parties to keep the information confidential or the law provided that the information was to remain confidential. This was not the case for the Cooke report.
[7] The question is would it cause any harm to Lauzon if the City became aware of the Cooke report on whether the Building could be remediated. Cooke is recognized as a leading heritage structural engineer with extensive experience in remediating and preserving heritage buildings in Ottawa. The City wanted to review Cooke’s recommendations before it made a further decision on how to proceed with the Building.
[8] There are two possibilities; firstly that the Cooke report supports Lauzon’s engineers’ opinion which states that no remediation is possible and that the only solution is complete demolition; and secondly that the Cooke report states that some remediation is possible to preserve some heritage attributes of the Building.
[9] Assuming that the Cooke report states that some remediation is possible and the City becomes aware of this engineering opinion, would this cause harm to Lauzon? The factual situation is that a heritage Building is currently in an unsafe condition for members of the public, such that Lauzon seeks immediate demolition. Mr. Lauzon does not want to remediate the Building to preserve heritage aspects and as such the Cooke report would be harmful to Lauzon’s goals.
[10] The City, in contrast, seeks to ensure the safety of the Building, but also seeks all available information in order to make a decision on how to proceed including: considering Mr. Cooke’s opinion on the possibility of remediation to preserve the heritage attributes of the Building.
[11] Providing the City with all of the available and the most reliable information about the Building before it makes a further decision does not substantially harm Mr. Lauzon’s interests. I find that the release of the Cooke report to the City for its consideration would only cause potential harm to Lauzon’s financial interests as he wishes to demolish the Building without incurring possible extra expenses to preserve its heritage aspects.
[12] As a result there is potential harm to Mr. Lauzon’s financial interest but potential benefit to the City and the public interest of preserving the heritage aspects of buildings in the City. I find that any harm caused to Lauzon as a result of allowing the City to review the Cooke report is not substantial.
[13] The City has advised that it will make a decision concerning the Building shortly after reviewing the Cooke report. Mr. Lauzon has an alternate remedy to appeal and challenge any future decision or order by the City concerning the Building. Mr. Lauzon will be able to challenge the jurisdiction of the City to consider heritage factors in addition to safety factors when making a decision about an unsafe heritage building in this further appeal. In addition he will be able to join his appeal of my decision to the extent it decided the jurisdictional issue, to be heard at the same time.
[14] Considering all of the above, I find that Lauzon has demonstrated a very small amount of potentially irrevocable harm to his financial interest.
Balance of convenience
[15] In Chitel v. Rothbart (1982), 1982 1956 (ON CA), 39 O.R. (2d) 513 (C.A.) at p. 10, the Court quoted from Lord Diplock in N.W.L. Ltd. v. Woods, [1979] 3 All E.R. 614 (H.L.) who stated that a judge should consider the practical realities of the situation when deciding whether or not to grant injunctive relief.
[16] The practical reality is that there is a heritage building in an unsafe condition and the City wants all available information before making a decision on how to proceed. The practical reality is that if the City does not act quickly the heritage building may collapse. Granting a stay would cause further delay in circumstances that call for a timely decision.
[17] The RJR MacDonald decision at para. 70 stated that it was of the utmost importance to consider the public interest in the balance of convenience. In this case the City seeks to protect the public interest by attempting to preserve a heritage building in the City, while Lauzon seeks to advance his economic interests by reducing his financial costs to demolish the Building.
[18] When assessing the balance of convenience I find that the City would suffer greater harm than Mr. Lauzon by not having the Cooke report to consider and not having all available information to assess the feasibility of remediating the Building to promote the public interest of preserving heritage buildings in Ottawa. The harm to Mr. Lauzon is minimal if the City has all relevant information to make a decision concerning the Building’s safety and preserving its heritage attributes and the potential harm to the public interest of losing a heritage building is much greater.
[19] I therefore find that the balance of convenience favours refusing a stay of my order and to require Mr. Cooke to provide a copy of his report to the City forthwith.
Disposition
[20] For the above reasons Lauzon’s motion for a stay is denied.
Costs
[21] If the parties are unable to agree on costs they may both make brief submissions on costs within 10 days.
R. SMITH, J.
Date: May 30, 2013
COURT FILE NO.: 1356924
SUPERIOR COURT OF JUSTICE - ONTARIO
RE:
ARLENE GREGOIRE, CHIEF BUILDING OFFICIAL FOR THE CITY OF OTTAWA,
Applicant
AND:
J. CLAUDE LAUZON, JOHN COOKE, P. ENG. AND JOHN COOKE AND ASSOCIATES LTD.,
Respondents
ENDORSEMENT
R. SMITH, J.
DATE RELEASED: May 30, 2013