ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 77516/12

DATE: 2013-06-07

BETWEEN:

DONALD THOMAS UPCHURCH and CARLA PAULINE UPCHURCH

Plaintiff

– and –

THE CORPORATION OF THE CITY OF OSHAWA

Defendant

S.R. Fairley, for the Plaintiff

N. Nicola-Howorth, for the Defendant

HEARD: May 21, 22, 28, 29/ 2013

Justice B. Glass

Introduction

[1] The plaintiffs commenced a civil action against the City of Oshawa ( hereinafter referred to as The City) for negligence with respect to whether they were required to have a building permit for work that Mr. Upchurch was doing to a residential rental property he owned at 178 Division Street in Oshawa.

[2] Ms. Upchurch had been named as a party in the building process because their records indicated that she was a co-owner of the property.

[3] The Plaintiffs had a claim for damages for malicious prosecution; however, they abandoned that claim and continued with the negligence action.

The Facts

[4] Mr. Upchurch intended to build a new deck at 178 Division Street in The City. He testified that he thought he would need to have a building permit; so, he attended The City office with a plan outlined by a store as well as one done on a computer by Ms. Upchurch. He spoke with Mr. Van Beusekom and was told that he did not need a building permit if the deck was less than 24” from the adjacent grade.

[5] Later, he was told that he needed a permit, but he did not apply for one because he understood that if the deck walking level was less than 24” inches from the adjacent grade, no permit was required by The City.

[6] When Mr. Upchurch had spoken to Mr. Van Beusekom, he claimed to have plans for the work he intended to do for the deck. He testified that he paid $60 for the building permit, a document was completed. Then, Mr. Van Beusekom told him he did not need a permit, tore up the form and returned his money.

[7] Mr. Van Beusekom testified that there was no plan presented. He spoke to Mr. Upchurch briefly. No money was paid for a permit. Therefore, no money was repaid to Mr. Upchurch. Mr. Van Beusekom said that if money had been paid with a permit application, there would have been an entry in the records, but there is no such record. He recalled Mr. Upchurch and was certain of his memory.

[8] Later, Mr. Van Vaals attended the property as a building inspector for The City checking on a complaint of work being done without a building permit. He was directed by Mr. Guta to attend the property to look at the deck. When Mr. Upchurch said the deck surface would be less than 24” from the adjacent level, Mr. Van Vaals reported to his boss and Mr. Guta directed him that a building permit would be required. This information was conveyed to Mr. Upchurch, who did not apply for a permit. Then, a notice was affixed to the front door of 178 Division Street regarding the lack of a permit.

[9] When Mr. Upchurch did not apply and obtain a permit, Mr. Van Vaals attended to view the project. When he was given notice that he was required to obtain a permit, he appealed the decision and lost. He then appealed to the Superior Court of Justice and lost. Costs at Superior Court were awarded to The City in the sum of $3500.

[10] The Plaintiffs appealed to the Divisional Court and eventually were successful. They did not have to obtain a building permit. Costs were awarded in favour of the Plaintiffs in the sum of $3500. The Divisional Court had permitted fresh evidence in the form of an engineering report to be filed. That report had set out that with the planters at the sides of the deck as well as at the front of the deck, no permit would be needed. In other words, the 2’ adjacent grade issue was answered.

[11] In the meantime, The City had issued provincial offence notices for the building permit. Eventually, when the Divisional Court decision was released, The City abandoned its provincial offence prosecution and withdrew the charges.

[12] Ms. Upchurch was also named in the process because The City had on its property records that both wife and husband owned the property.

[13] The Plaintiffs take the position that The City officials were negligent in exercising a duty of care to provide correct information regarding the necessity to obtain a building permit for the construction of a deck. Further, The City owed a duty of care not to prosecute them for relying on that advice that they did not need to have a building permit.

[14] The Defendant denies any negligence on the part of its officials, but rather takes the position that officials followed the requirements pursuant to the Ontario Building Code and the policy of The City.

[15] There had been a claim for malicious prosecution, but the Plaintiffs abandoned that claim at the commencement of trial and continued the trial based on negligence on the part of officials of the Defendant.

Issues

[16] What is the foundation for the duties of The City officials regarding building permits?

[17] Are those duties owed to ratepayers?

[18] Did the officials follow those requirements?

[19] Did the officials’ conduct fall below the standard of care to which they were obligated to uphold?

[20] If so, did the Plaintiffs sustain damages and in what quantum?

[21] Were those damages foreseeable?

[22] Is there a foundation for aggravated and punitive damages?

Analysis of Standard of Care

[23] The guiding legislation is the Ontario Building Code Act coupled with the policy used by the Defendant. The purpose for the Building Code is the protection of the health and safety of people in the community. The municipality of Oshawa has a policy for building and inspections of construction projects. With that comes a duty of care to people who might be injured by negligence with inspections. The duty of care is limited to making sure that buildings under construction are built so as avoid endangering the health and safety of occupants. See Gorsack v . 1138319 Ontario Inc., [2003] O.J. No. 3822 at paragraphs 29 and 31-32.

[24] The City of Oshawa avoids liability if its officials meet the standard of care in inspection that would be expected of an ordinary, reasonable and prudent person in the same circumstances. See Ingles v. Tukaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298 at paragraph 20.

[25] In this case, Mr. Upchurch attended the offices of the Defendant to determine whether he was required to obtain a building permit. He testified that he thought he was required to have a building permit for the new deck and was prepared to make an application for one as well as to pay for it.

[26] When Mr. Upchurch went to The City, he said he took plans prepared for him at Millwork, a local store. He showed the plans to Mr. Van Beusekom, completed an application form and paid $60 for the permit. After speaking with Mr. Van Beusekom, he was told that if the deck was to be less than 2 feet above the adjacent grade, he did not need a permit. Mr. Van Beusekom tore up the forms and returned his money. The plans were left there with Mr. Van Beusekom.

[27] Mr. Upchurch went ahead with the construction of the deck. When well into the project, Kevin Van Vaals, a building inspector, attended the property after The City had received a complaint of work being done without a building permit. Donald Upchurch advised that he did not need to have a permit because the deck was to be less than 2 feet from the grade.

[28] Mr. Van Vaals reported back to his superior and was instructed by Mr. Guta that a building permit was required. This information was conveyed to Mr. Upchurch. He resisted getting a permit and did not do so.

[29] The City then posted a No Permit Order on the door of the building.

[30] There is no need to make any determination about the permit and whether or not it was needed because that issue was concluded at the Divisional Court. However, this action focuses on the activity that led the Plaintiffs to court regarding the information to have or not to have a building permit.

[31] During the trial, Mr. Van Beusekom and Mr. Van Vaals testified on behalf of The City.

[32] Mr. Van Beusekom was the person to whom Mr. Upchurch spoke initially regarding the building permit. He recalls speaking with the male Plaintiff. He does not recall Mr. Upchurch with any plan. Nor was any money deposited. If Mr. Upchurch had paid money and completed a permit application, there would have been a record of it at The City. There is none. The only way there could have been money present is if Mr. Upchurch had placed money on the counter and took it back when he did not complete an application. Mr. Upchurch simply made an oral inquiry about whether he needed a permit for a new deck. Mr. Van Beusekom advised that he did not need a permit if the deck was less than 2 feet above grade. He did not expect the grade to be altered during the construction of a deck.

[33] Mr. Van Beusekom testified that Mr. Upchurch was there for a short period of time. Most people would be there longer.

[34] Mr. Upchurch claimed in his testimony that he had left the plans from Millwork with The City. There is no record of such plans being with City of Oshawa. And Mr. Upchurch stated that he did not have another copy of the Millwork plan at home.

[35] Mr. Upchurch told the court that there was another plan prepared by his wife on the computer at her work, but they did not have it either.

[36] Ms. Upchurch testified that she prepared a plan for the deck on an Autocad program at work, but she could not produce it because her computer crashed.

[37] I do not believe the Plaintiffs when they say that they had plans for the design of the deck. I find the story too much of a stretch of the imagination to believe that they got a plan from Millwork, took it to Mr. Van Beusekom at The City, left the plan with Mr. Van Beusekom, do not have another copy of the Millwork plan, and had another plan prepared by Ms. Upchurch but cannot provide it because the computer crashed. The more logical conclusion is that there was no plan left with Mr. Van Beusekom because there is no record at The City. Mr. Upchurch went to see Mr. Van Beusekom and got some information from which he concluded he had a way to avoid having to present an application for a building permit with plans. Sometimes, a person can be crafty like a fox and manipulate circumstances to their own ends. That is what happened here.

[38] Since I find that Mr. Upchurch did no more than make an oral inquiry about a deck construction with or without a building permit, I conclude that Mr. Van Beusekom conducted himself in a reasonable manner when he spoke to Mr. Upchurch. A reasonable person would conclude that Mr. Van Beusekom’s conduct provided correct information to Mr. Upchurch and did not mislead him. The information provided was not inaccurate. There was no reasonably foreseeable harm flowing from the answers he provided. The problem developed later when there was a complaint and an issue about whether or not the planters were the adjacent grade and were less than 2 feet below the walking level of the deck that Mr. Upchurch constructed.

[39] The City and Mr. Van Beusekom had a duty of care to a member of the inquiring public to provide accurate information. If he were careless or negligent and if subsequent damages were reasonably foreseeable, liability might exist if it were in a close and direct relationship of proximity or neighbourhood as was enunciated in McAlister (Donoghue) v Stevenson, 1932 536 (FOREP), [1932] A.C. 562.

[40] I point out that this is a negligence action. Negligent misrepresentation is not pleaded. The events following the initial inquiry whereby The City required that Mr. Upchurch obtain a building permit and uncover the site for inspection become actions surrounding the implementation of the policy for building permits.

[41] Anns v. Merton London Borough Council (1977), [1978] A.C. 728 provided a two-stage test :

(i) should a defendant have foreseen that damage was likely to result from the negligent action? If yes, then, there is a prima facie duty of care.

(ii) are there any considerations which would negative or limit the prima facie duty of care?

[42] In Ingles v. Tukaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298, the Supreme Court visited the Anns test quoting Kamloops v Nielsen 1984 21 (SCC), [1984] 2 S.C.R. 2 at pages 10 and 11:

(1) is there a sufficiently close relationship between the parties (the local authority and the person who has suffered damage) so that, in the reasonable contemplation of the authority, carelessness on its part might cause damage to that person? If so,

(2) are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise?

[43] In Ingles (supra), the Supreme Court at paragraph 17 noted a relatively low threshold as the first step in the Anns/Kamloops test. There is a prima facie duty of care established if it can be shown that a relationship of proximity existed between the parties such that it was reasonably foreseeable that carelessness on the part of the public actor would result in injury to the other party. When moving to the second step of the test, the court looks to the legislation governing a public authority to determine whether a private law duty should be imposed in the circumstances.

[44] The issue of standard of care does not end at that point. The City received a complaint about the deck construction being done without a building permit. That is when Mr. Van Vaals attended the property in September 2006. There was a planter at the front of the deck but none at the sides. Mr. Upchurch stated that he did not need a permit because he was going to put planters on the sides as well and that when planters were around the deck, the drop from the deck walking surface to the planters would make the adjacent grade drop less than 2 feet.

[45] Mr. Upchurch requested that The City produce something in writing regarding the need for a permit. That was done by way of a telephone message on October 10, 2006.

[46] Mr. Van Vaals reported this information to his superior and was told by Mr. Guta, his superior, that a permit was required and to give notice that there was no building permit in place for the work being done. The notice, a No Permit Order, was affixed to the front door of 178 Division Street on October 10, 2006. Further, on June 21, 2007 The City issued an Order to Uncover so that an inspection of the work below the deck surface could occur.

[47] Following the No Permit Order, the Plaintiffs appealed and went to the Superior Court of Justice before Lack J. who dismissed their appeal. The decision from Lack J. was rendered on May 8, 2007. That decision was appealed to the Divisional Court and was heard in September 2008.

[48] Since the Plaintiffs had failed to respond to the No Permit Order, The City charged Mr. Upchurch on September 5, 2007 with failing to obtain a building permit, failing to comply with the No Permit Order, and failing to comply with the Order to Uncover. The charges were made pursuant to the Ontario Building Code Act, 1992, S.O. 1992, c. 23.

[49] I find that The City officials were acting properly as they issued the No Permit Order and the charges for failing to obtain a building permit, failing to comply with the No Permit Order, and failing to comply with the Order to Uncover. The officials have a duty to administer the Building Code. I do not find that there was any harassment of the Plaintiffs by the Defendant. There was no vendetta against them. There simply is no evidence of such conduct at this trial beyond speculation by Mr. and Mrs. Upchurch that the City of Oshawa was pursuing them in a harassing manner.

[50] The standard of care for the officials of the City of Oshawa is to administer the Building Code and The City policy for the Ontario Building Code in a fair and impartial manner. It is an objective test. In other words, what would the reasonable person expect the officials to do?

[51] Negligence might emanate from the officials being careless with providing erroneous information to a ratepayer and then playing a catch-up game by changing the requirements. In this case, I do not find that the officials acted in such a manner. Rather, Mr. Van Beusekom replied to a verbal inquiry at the counter and simply told Mr. Upchurch that if a deck is being built and there is less than a 2 foot drop from the deck surface to the adjacent grade, no permit is needed. I conclude that a reasonable person would accept that conduct by Mr. Van Beusekom as proper. Mr. Van Vaals provided directions regarding a building permit on direction from his boss. There was a drop of more than 2 feet from the deck walking surface to the ground on the sides where no planter was in place. Mr. Van Vaals accepted in cross-examination that there was a grey area whether planters could be interpreted as adjacent grade. That has changed now with new Building Code guidelines that came into play in 2007 after this construction commenced. I find that the officials were acting reasonably in interpreting that what Mr. Upchurch was doing was not within acceptable limits of constructing a deck without a building permit. They were not negligent in exercising their duties.

[52] The follow-up to a complaint about work being done without a building permit and the issuing of charges is a procedure that the officials would be expected to perform. This is not an example of a dog with a bone refusing to let go. The charges for Building Code Act infractions had a 1-year limitation period that would expire in late September 2007.

[53] A reasonable person would expect the officials to act as they did. The duty of care owed by the officials of The City has been met. The officials gave notice following the receipt of a complaint about work being conducted without a building permit. The Plaintiffs were not prepared to accept that information and made an informed decision to challenge the No Permit Order through to the Superior Court and then to the Divisional Court. The City having received an order from Lack J. at the Superior Court of Justice proceeded to administer the Building Code. Only after the Divisional Court rendered its judgment in October 2008 did The City withdraw the charges issued in September 2007 pursuant to the Ontario Building Code Act.

[54] This decision regarding standard of care is focused on a claim in negligence by the City of Oshawa building officials with respect to the administration of the Ontario Building Code as it applied to the Plaintiffs. This trial does not involve an assessment of the issues before the Divisional Court because that court has addressed the issues of whether or not the planters that were placed across the front of the deck and along the sides were adjacent grade and were less than 2 feet below the deck walking surface. This trial is not focused on any allegation of malicious prosecution by The City because that claim was abandoned at the commencement of the trial. Rather, the issues here focus on a claim for negligence by building officials for the City of Oshawa in the implementation of the policy of the City of Oshawa with respect to building permits when providing information about what a ratepayer was or was not required to do insofar as the person might want to construct a deck on their residential property and further in the implementation of the policy and Code after construction took place. If an official is careless and provides inaccurate information and then The City changes its position, The City might become liable for damages to the ratepayer for harm that was reasonably foreseeable. As mentioned above, this did not occur here because the officials did meet that standard of care.

[55] The bottom line is that Mr. Upchurch made a cursory verbal inquiry to Mr. Van Beusekom about a deck construction and a building permit requirement. He remained for a very short period of time. I conclude that he has used what might be called a pounce principle of providing limited information to a building official and then jumping to the conclusion that he was free to do what he wanted. The conclusion then became one of Mr. Upchurch continuing to act in an excessively strong-willed manner. He is the author of his own misfortune but tries to blame it all on the other side.

Analysis of Damages If There Were a Breach of the Standard of Care

[56] Since I find that there is no breach of the standard of care, no damages follow.

[57] I point out that if there were a breach of the standard of care with City of Oshawa, the court would advance to consider whether any harm was experienced by the Plaintiffs and whether such harm was reasonably foreseeable.

[58] In this case, the damages claimed are general damages, but none are established. No psychological or psychiatric harm is claimed. Ms. Upchurch and Mr. Upchurch said the whole experience stressed their marriage.

[59] The legal costs of appealing the No Permit Order to the Superior Court of Justice and then to the Divisional Court as well as legal costs to defend the prosecution of charges pursuant to the Ontario Building Code are claimed. They total $27,834.35 after netting off what was allowed by the Divisional Court in the sum of $3500. The claim for legal costs in other proceedings is not a valid claim for damages in this action. The Plaintiffs as parties in the Superior Court and Divisional Court were entitled to claim costs there. Costs were addressed there. There is not a valid claim to sue for the balance in another action such as this one. Those costs are not connected to this action.

[60] Further, on costs, Mr. Upchurch testified that he fired his first lawyer because he tried to settle the issue over the building permit with the City of Oshawa. He then had the lawyer’s account assessed. Mr. Upchurch stated that he was successful and the lawyer had to repay him some money, but he did not say how much was repaid.

[61] In Somers v. Fournier, 2002 45001, the Ontario Court of Appeal at paragraphs 19 and 20 held that legal costs are part of the litigation process. They are not a cause of action. They are part and parcel of the process of determining the rights of the parties. They are procedural and are not part of the dispute between the parties.

[62] The claim for the above legal costs is not proper and is not allowed.

[63] Days missed from work involve a claim of $7508.58 as time lost. There are no records from employers to substantiate that the Upchurchs lost income by attending court and attending meetings with their lawyers. They provided estimates of time by looking at legal bills for dates and times when they had meetings with counsel. Because they work in Toronto, if they had a court attendance or a meeting with their lawyer, they took the whole day off. There is no foundation for the quantum claimed other than their oral testimony. This is not a valid claim for damages in this action and could not be allowed.

[64] On the lost income issue, I note that the Ontario Court of Appeal in Fong v. Chan, 1999 2052 (ON CA), [1999] O.J. No. 4600 at paragraph 26 noted that all litigants suffer a loss of time through their involvement in the legal process. The Court there pointed out that self-represented litigants should only recover costs for the work they do that would be conducted ordinarily by the lawyer.

[65] In Khokhar v. Blackburn, 1993 4168 at the Alberta Queen’s Bench at paragraph 21, the court addressed the issue of lost wages and income because of court attendance. The court did not allow it because this could result in the large income earner being able to recover more than the modest income earner thus leading to an imbalance such that litigants without much of an income would be reluctant to advance claims or defences with merit.

[66] I find that there is no foundation for general damages at all. The damages claimed are not foreseeable damages had there been a breach of the standard of care by the officials of The City.

[67] The Plaintiffs also claim aggravated and punitive damages. There is no foundation for such damages.

[68] Aggravated damages are compensatory in nature and usually are used to address damages from mental stress and emotional distress. None are shown in the evidence here. There is no foundation for aggravated damages.

[69] Punitive damages are not compensatory but rather are meant to punish the offending party for its conduct. They are founded on in high-handed or malicious or arbitrary conduct of a party. Conduct that is extreme to the extent that it demonstrates a marked departure from the ordinary standards of decent behavior will lead to punitive damages. See Vorvis v. Insurance Corp. of British Columbia, 1989 93 (SCC), [1989] S.C.J. No. 46 at paragraphs 16 and 27 and Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595 at paragraphs 36 and 94. There is no foundation for punitive damages here whereby the court would be able to focus on any conduct of the Defendant and its officials so as to find the reprehensible conduct needed for such an award.

Conclusion

[70] The City did owe a duty of care to a ratepayer. The standard of care performed was met.

[71] Negligence is not established in providing correct information about the requirement to obtain a building permit or in prosecuting the Plaintiffs for relying on the advice that a permit was not required.

[72] If there had been a breach of the standard of care, damages that were foreseeable could have been considered; however, any damages claimed were not valid, foreseeable damages in the first place.

[73] The claims of the Plaintiffs are dismissed with costs to the City of Oshawa.

[74] The parties may file written submissions for costs. The successful Defendant may file a 5 page presentation by June 17th, and the Plaintiffs may file a 5 page response by June 24th.

Justice B. Glass

Released: June 7, 2013