BARRIE COURT FILE AND PARTIES
BARRIE COURT FILE NO.: 14-0289
DATE: 20140620
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Corporation of the Town of Midland, Applicant
AND:
881229 Ontario Inc., Respondent
BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN
COUNSEL:
B. Ogunmefun, Counsel for the Applicant
D. Pantling, Self-representing Company
HEARD: June 17, 2014
ENDORSEMENT
[1] The Town of Midland applies for an order confirming the emergency order made by the Town under s. 15.7 (1) of the Building Code Act 1992, S.O., c.23 (“BCA”). The Town’s order deals with a situation which its Municipal Law Enforcement Officer saw as requiring immediate remediation. It purports to recognize an immediate danger to persons in or near the property in question and to require the recovery of monies expended by the applicant to repair property owned by the respondent company. The amount includes a 20% administrative fee and legal costs. The effect of the order, if confirmed, is to add the combined amount to the tax roll of the property in question for collection. The Town of Midland has enacted a property standards by-law, No. 2002-81, and so there are minimum standards in place to address any particularly unkempt or dangerously noxious examples of neglect in residential housing.
[2] The facts are not in dispute. The property is a two-storey building containing a defunct ground-floor business and 5 residential apartments, owned by the respondent company. (“881”). Mr. Derek Pantling is the principal of 881. On February 10, 2014, the Town’s Municipal Law Enforcement Officer Jim Reichheld received the news from the Midland Police Service that he should attend immediately at the property. Pursuant to a third party report, an officer checked unit 2 for the well-being of the occupant. The officer who attended found the apartment in deplorable condition. The photographs taken of various rooms show an apartment with the toilet full of fecal coloured liquid, obviously plugged, more of the same on the floor and in other parts of the bathroom, bloody bandages, hazardous waste, another room full of empty cans, another full of used clothing stacked quite high, and the place generally in a most unsanitary and unsafe condition. From the photographs it is clear that the situation was extreme, the place was filthy and the abundance of fecal material and soiled material is consistent with the evidence of the enforcement officer. The tenant was immediately removed to the hospital for medical attention and was admitted for an unknown period of time.
[3] Mr. Reichheld formed the opinion from what he witnessed that the apartment’s condition was a threat to others. It was the further opinion of Mr. Reichheld that it was in violation of the Town’s Property Standards By-law and that the condition of the apartment posed a danger to the health and safety of others close by and in the building.
[4] The same day, February 10, 2014, he issued an order under s. 15.7 (1) of the BCA. According to s. 15.7(1), if the municipal officer is satisfied that the property does not conform to the standards in the by-law to the extent that it poses an immediate danger to the health or safety of any person, he may order that the nonconformity is to be repaired. The order is to be served on the owner of the property and other persons affected thereby and a copy shall be mounted on the property. The order was served on the owner, 881, the responding party on this application, and was posted on the property the same day.
[5] Again on the same day, the officer engaged the services of a local cleaning firm to clean the apartment to a safe condition. The account and a statement of the measures taken to address the conditions in Apt. 2 over two to three days and the amount expended were served on the respondent owner on March 6. The amount was $3,228. 86 plus a local fee of 20% imposed by by-law of council, totalling $3,874.63 ($3,228.86 + $645.77).
[6] Representing the respondent, Mr. Pantling made submissions. He made the following points:
(i) the Town has not pursued the proper person for payment; for the landlord, officials of the respondent company may only enter a tenant’s room under certain conditions, or on the invitation of the tenant. In other words, he submits that it is the tenant who has control of his unit, not the landlord. The occupant of the apartment is the tenant, not the landlord, and therefore it should be the occupant who must take responsibility for the clean-up bill.
(ii) the Enforcement Officer’s decision to treat this situation as an emergency and to take remedial measures was premature. He should have called the building manager whose contact information he knows and she would have seen to cleaning up the apartment and assisting the tenant as she has done before. The restaurant below is closed. There was no danger to anyone. The officer’s decision fails to meet the requisites of a “reasonable decision addressed in Ryan v. Law Society (New Brunswick) 2003 SCC 20, [2003] 1 SCR 247.
(iii) the cost of cleaning up the apartment is overstated. By comparison, the owner arranged for cleaning and painting of the room in May and the cost was $1,034. The invoice is provided. In a case referred to by the Town’s counsel, the municipality of Mississippi Mills assessed no such administrative charge. The administrative charges are paid for from taxes; the administrative fee imposed by the Town is double-charging. In addition, the Town is trying to charge the owner for cleaning the tenant’s clothing; that item alone was $761.76.
Analysis
[7] I will address the complaints put forward methodically and articulately by Mr. Pantling. I understand that Mr. Pantling is the share-holder and controlling mind of 881. I will deal with them in order.
(i) The wrong party is being asked to pay
[8] Under the BCA, the “owner” is liable to pay the amount expended plus costs pursuant to the order of the Enforcement Officer, as confirmed or modified by the court. However the word “Owner” is defined as including both the legal owner of the property and the tenant where a rental unit is involved, as it is here. It is true that the owner can enter a unit on written notice or on the invitation of the tenant. However the Residential Tenancies Act, 2006, c.17,contains the following provisions which bear on this issue:
- (1) A landlord may enter a rental unit at any time without written notice,
(a) in cases of emergency
(1) A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry under the following circumstances:
To carry out a repair or replacement or do work in the rental unit.
To carry out an inspection of the rental unit, if,
i. the inspection is for the purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord’s obligations under subsection 20 (1) or section 161, and
ii. it is reasonable to carry out the inspection.
[9] It is quite clear that Mr. Pantling is not correct when he says the landlord has no control. The landlord is empowered to inspect on 24 hours’ notice, to enter and do necessary repairs in emergencies or to comply with property standards by-laws. He had every right in this case to enter the subject apartment on 24 hours’ notice to inspect and to do the necessary repairs. It is clear also from the extremely sordid and dirty conditions in the subject apartment that it had taken days and perhaps weeks of neglect for it to get into this condition. It had to be a source of odours for a few days at least; however, as the landlord knew the situation of this tenant and that he needed help to keep the apartment up to standard, the Town should have allowed him or his manager more time to inspect and have the place repaired and cleaned. He failed to do so until a call had to be made to the police to ensure that this inhumane and sordid situation did not continue. This ground is not a valid objection to the Town’s actions.
(ii) The By-Law Enforcement Officer’s decision to make an emergency decision was not reasonable
[10] In view of the condition in which the apartment was found by a police officer who saw the apartment and found the situation to be so urgent that the officer reported it to the Town and did not simply assist the tenant to get some lay help, and because the landlord’s manager had done nothing to assist the tenant to prevent the disgusting and obviously risky situation from developing despite the landlord’s powers to enter and repair to minimum standards and to repair in an emergency, I find this ground to be nothing but an attempt to pass the buck. If the owner knew so well how to manage the situation, why was it allowed to deteriorate so badly that the apartment contained rooms full of fecal material and blood which can be a ready source for infectious viruses and bacteria to develop? And the tenant had to be sent for treatment. According to the owner’s material the tenant said he was hospitalized for a period of time, not simply treated as an outpatient, requiring care in the hospital. The decision of the Municipal Law Enforcement Officer stands up to a more than simple probing examination. It had become a dangerous situation for the tenant to be in, and potentially for others near the apartment. Ryan, supra.
(iii) The cost is over-stated
[11] This is the one ground where I find the owner has a valid objection. First, not only the apartment but some of the contents were cleaned. The cleaning of articles found in the apartment would be work for the tenant whose goods were the contents. Those items could have been bagged and kept for the tenant or instructions could have been sought from him as to what he wanted done with them, whether to throw them out or, if to be kept, simply bagged and stored to await pick-up by the tenant or someone acting for him.
[12] As a tenant is also defined for purposes of the order involved here as an owner, the order of the Town must be modified to remove this item as an expense to be charged against the respondent registered owner. I make no finding as to the unsubstantiated charge that the clean-up work was over-charged for. It cannot fairly be contrasted with a bill for work done after the apartment had been thoroughly cleaned under the emergency order only two months before. In view of the condition of this apartment as shown in the exhibits on February 10, 2014, the amount of the clean-up bill does not appear not at all excessive. In addition, as I mentioned earlier, the respondent or its manager could have acted to inspect and clean to proper standards and they did not do so for a significant time before Feb. 10, 2014. The conditions that day had taken a considerable time to descend to that nadir of housekeeping and unhealthy circumstance. The respondent and his manager, knowing about this tenant and his difficulties as they profess to, should have taken reasonable precautions to make regular inspections. They did not, and it ill behooves them to cast stones verbally after the event and after the Town acted as, in my view, it had to.
[13] It is ordered that the emergency order made by the Town of Midland pursuant to s.15.7 of the BCA in respect of the property legally described in para. 36 of the factum herein is confirmed as being properly issued.
[14] It is further ordered that the applicant may recover from the respondent the sum of $2,095.64 plus HST of $272.43 = $2,368.07. The applicant can recover the balance of the bill from the tenant for cleaning his things, if the tenant chooses to do so. In addition the applicant may recover its reasonable legal costs subject to submissions. The issue of the administrative charge is left for further submissions with the issue of costs. I see no authority at present in the BCA for the Town to add an arbitrary administrative fee that has nothing to do with its own cost in dealing with this situation where their enforcement officer is paid a salary in any event and the Town is to recover what it paid to clean the hazardous waste and remediate the below standard condition.
[15] Decision is reserved on the administrative fee and legal costs. The applicant’s counsel may make brief written submissions to me on those subjects within 10 days of release of this decision. The respondent may have 10 days from receipt of the Town’s submissions to send me his submissions on these two subjects only. The Town may have 5 days to reply. The final draft judgment shall be submitted to me without the need for the defendant’s approval.
HOWDEN J.
Date: June 20, 2014