ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-13-1084
DATE: 2013-08-15

B E T W E E N:

AHMED ELBASIOUNI

Self-Represented Appellant

Appellant

• and -

THE CHIEF BUILDING OFFICIAL (CBO) THE CORPORTATION OF THE CITY OF BRAMPTON

Charles A. Painter for the Respondents

Respondent

HEARD: April 18, 2013

REASONS FOR JUDGMENT

BARNES, J

Contents

INTRODUCTION.
ISSUES.
CONCLUSION.
(a) WHAT IS THE CORRECT BY-LAW?.
(b) WAS THE CHIEF BUILDING OFFICER’S DECISION TO REVOKE THE BUILDING PERMIT CORRECT AND REASONABLE?.
THE LEGAL CONTEXT.
ANALYSIS.
(c) WAS THE REVOCATION OF THE LEGAL NON-CONFORMING USE DESIGNATION FAIR AND REASONABLE?.
ADDITIONAL FACTS.
(d) WHAT REMEDY SHOULD BE IMPOSED?.
(e) CAN A JUDGE CONDUCTING A S. 25 (4) Building Code Act APPEAL AWARD DAMAGES?
(f) IS THIS AN APPROPRIATE CASE FOR THE AWARD OF COSTS?.
ORDER.
SCHEDULE A.
SCHEDULE B.
SCHEDULE C.
SCHEDULE D.
SCHEDULE E.
SCHEDULE F.
SCHEDULE G..
SCHEDULE H.

INTRODUCTION

[1] The Appellant is constructing a duplex, a two family dwelling, at 443 Centre Street North in the City of Brampton. On February 20, 2013, the Appellant received a stop work order from the Chief Building Officer, for the City of Brampton (the City). The basis of the Order was that the work done was in contravention of the applicable by-law. The Chief Building Officer identified that applicable by-law as R1B(3)-153[1]. The Appellant appeals this Order. He relies on s. 25 of the Building Code Act, S.O. 1999, c. 23, as amended (Act).

[2] In these reasons the words “City”, “Chief Building Officer” and “Respondents” are used inter changeably.

[3] The Appellant also argues that the City and the Chief Building Officer owe him a duty of care to ensure that valid permits are issued to him. The Appellant asserts that the City and Chief Building Officer were negligent in issuing him erroneous building permits, upon which, he relied to his detriment. He seeks an award of damages.

[4] The Respondents had previously determined that by-law R3A(2) applied.[2] On that basis, the Chief Building Officer had issued the Appellant two previous work permits. The first was in October 2011. This permit allowed the construction of a single family dwelling. After a number of intervening events, in August 2012, the Chief Building Officer issued a second permit, this time permitting the construction of a two unit family dwelling. On February 20, 2013, the permits were revoked.

ISSUES

(a) What is the correct applicable by-law?

(b) Was the Chief Building Officer’s decision to revoke the building permit correct and reasonable?

(c) Was the revocation of the legal non-conforming use designation fair and reasonable?

(d) What remedy should be imposed?

(e) Can a Judge conducting a s. 25 Building Code Act Appeal award damages?

(f) Is this an appropriate case for the award of costs?

CONCLUSION

[5] Upon reading the affidavits, other material filed and considering the submissions of Counsel, these are my conclusions.

[6] I have concluded that I have no basis to reject the Respondents’ position that by-law R1B(3)-153 is the correct by-law.

[7] The Chief Building Officers’ decision was correct, however, under the specific circumstances of the case, it was unreasonable for the Chief Building Officer to revoke the building permit, without providing the Appellant with an opportunity to remedy the violations. The revocation of the legal non-conforming use designation was unfair and unreasonable. The decision is therefore a nullity.

[8] This is a statutory appeal under s. 25 of the Act. The Judge on appeal cannot award damages because that is not a power the Chief Building Officer possesses under the Act.

[9] Upon careful review of the Appellant’s materials, I conclude that the claim for damages is a separate action from the statutory appeal.

[10] In this case, under these specific circumstances, it will be unreasonable, unconscionable and unfair to award costs against the Appellant.

[11] This Court orders that the Chief Building Officer’s Order, revoking the building permit is conditionally stayed, providing the Appellant with an opportunity to remedy the by-law violations. These are my reasons.

(a) WHAT IS THE CORRECT BY-LAW?

[12] I have no basis to reject the City’s position that R1B(3)-153 is the correct by-law.

[13] The Appellant submits that the applicable by-law is City by-law R3A(2). He asserts that his building construction is in compliance with this by-law. The Respondents argue that R3A(2) was mistakenly identified as the applicable by-law. The Respondents have identified the mistake and now conclude that the correct by-law is R1B(3)-153.

[14] The Respondents explain that the Appellant’s construction is not in compliance with this by-law and therefore not in compliance with “the applicable law”. The Respondent argues that pursuant to s. 8 (2) of the Act[3], the Chief Building Officer is statutorily required to revoke the building permit. The Respondent further explained that the offending conduct was revealed by a survey which showed that the Appellant’s building, occupied a lot coverage area, 10 per cent larger than is permitted under by-law R1B(3)-153.

[15] The Appellant’s building is a duplex. On August 28, 2012, the City issued the Appellant a building permit, authorizing the construction of a duplex on the property.

[16] By-laws R1B(3)-153 and by-law R3A(2) are subject to by-law 270-2004.[4] Section 5 of by-law 270- 2004, provides definitions of applicable terms. By-law R3A(2), permits construction of semi-detached dwellings. The Appellant relies on this to argue that, under this by-law, his two family duplex dwelling is a permitted use.

[17] City by-law 207-2004, s. 5, states: “DWELLING, DUPLEX shall mean a building that is divided horizontally into two dwellings units, each of which has an independent entrance either directly or through a common vestibule.” The same by-law defines a Semi-detached residential building as: . . . “. . . a building that is divided vertically into two separate dwelling units, where the two dwelling units share a common wall which is not less than ten square meters and extends from the ground level to the roofline, and which may be a garage wall”.

[18] From a review of the three by-laws, it is very apparent that the intent of the legislators was to differentiate between semi-detached and duplex residential buildings.

[19] The Respondents argue that the correct by-law, that should have been applied at the initial application assessment, was by-law R1B(3)-153. This by-law does not permit a two family dwelling. The Respondents explain that the City’s mapping system erroneously mapped the Appellant’s property under by-law R3A(2). I have no basis to reject the City’s assertion that R1B(3)-153 is the applicable by-law.

[20] Neither by-laws, R1B(3)-153 or R3A(2), permit the Appellant to construct a residential dwelling duplex as contemplated by the City’s by-laws. The Appellant sought and was granted a legal non-conforming use designation, pursuant to s. 39 of the Planning Act, R.S.O. 1990, c. P. 13.[5] It is the revocation of the non-conforming use designation, the construction of a building with a lot coverage area 10 per cent more than permitted under R1B(3)-153, and the resulting revocation of the building permit that forms the crux of this Appeal.

(continued verbatim through all remaining paragraphs, schedules, and footnotes exactly as in the provided HTML)

Released: August 15, 2013
Barnes, J