CITATION: Birani Homes Ltd. v. Corp. of the City of London et al., 2015 ONSC 1034

COURT FILE NO.: 32-15

DATE: 2015/02/17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BIRANI HOMES LTD.

(Appellant)

And:

CORPORATION OF THE CITY OF LONDON, VASANTRAI GIRJASHANKER JOSHI and JYOTIBALA VASANTRAI JOSHI (Respondents)

BEFORE: Justice I. F. Leach

COUNSEL: Scott Gallagher, for the appellant

Nicole Hall, for the respondent Corporation of the City of London

Respondents Mr and Mrs Joshi not appearing

HEARD: February 11, 2015

ENDORSEMENT

[1] This matter comes before me in the overall context of an appeal by a home builder, (“Birani”), pursuant to section 25 of the Building Code Act, S.O. 1992, c.23, (“the BCA”), from an order made by the respondent City’s building inspector.

[2] Specifically, on December 19, 2014, the City’s building inspector made an order which:

a. found that a particular home constructed and sold by Birani to its current owners, (“the Joshis”), is in an unsafe condition because its concrete foundation is structurally deficient; and

b. specified and required the taking of certain remedial action within 90 days, including:

i. retention of an engineer to prepare and submit a report to the City’s chief building official (“CBO”) identifying areas of the foundation which are structurally unsafe and do not meet Building Code requirements, and outlining a plan of remediation to make the foundation safe and Code compliant;

ii. completion of all the engineer’s recommended remedial work, pursuant to a proper building permit; and

iii. submission of a final report from the engineer to the CBO confirming completion of the recommended remediation, and that the foundation is structurally safe and Code compliant.

[3] The stated grounds of the appeal herein are particularized at length in the notice of appeal filed by Birani.

[4] However, at the risk of over-simplification, Birani essentially complains that it was both unreasonable and unlawful for the City to order that Birani take remedial action in relation to a property which Birani does not own, and over which Birani has no control and no rights of access.

[5] Pursuant to an interim direction made herein by Justice Goodman on January 20, 2015, (on consent of the parties), I am not asked to decide that appeal.

[6] I am instead asked to decide, by way of an interim ruling, whether an order can and should be made permitting Birani and its engineering experts to access the relevant property and take certain samples from the relevant home’s concrete foundation.

[7] In addition to such an order, Birani also requests certain ancillary relief, including:

a. an adjournment of this appeal pending the taking and analysis of such samples by the appellant’s engineers, and their preparation of a plan of remediation; and

b. a stay of various provisions in the building inspector’s order, pending hearing of this appeal.

[8] For the reasons outlined below, the interim relief sought by Birani is denied.

Further background

[9] This matter has an extended and somewhat convoluted history, which is detailed in the massive four volume appeal record filed by the appellant.

[10] I think it neither necessary nor helpful to outline that history in exhaustive detail, when it was not really disputed by the parties participating in the hearing before me.[^1]

[11] For present purposes, the developments leading to the present impasse may be summarized as follows:

• Birani constructed a residential home at 1891 Coronation Drive, here in the city of London, which it then sold to the Joshis in 2007.

• At some point after closing, the Joshis apparently noticed parging falling off certain above-ground portions of the home’s concrete foundation.

• In 2009, the Joshis retained an engineer to extract and analyse a few samples of concrete from their foundation. It seems the samples were all taken from the south or “rear” foundation from the home, in the above-ground area where the aforesaid problems with the foundation had been observed. Testing of the samples apparently suggested that the compressive strength of that portion of the foundation, (in the area from which the samples had been taken), was inadequate.

• Seeking recovery for the perceived defects in the foundation of their home, the Joshis apparently then took action on three fronts:

o First, the Joshis commenced a civil action against Birani in April of 2010, seeking $1 million in damages, which in turn prompted a third party claim by Birani against its concrete supplier. The dispute included ongoing disagreement, (extant even before commencement of the litigation), as to whether further samples and testing were necessary and appropriate, and if so, the manner in which such further investigation would be performed. In October of 2013, Justice Mitrow made an interim order, in the context of the civil litigation, permitting engineers retained by Birani to take further samples and carry out additional testing, subject to a condition precedent whereby Birani’s engineers had to submit a plan that in turn had to be approved by the Joshi’s engineers. However, ongoing disagreement about that plan resulted in a further stalemate[^2], and the entire action then was administratively dismissed in February of 2014. Notwithstanding prompt delivery of notice that the Joshis intended to move for a setting aside of that administrative dismissal, and service of subsequent duplicative motion records seeking such relief, (one apparently delivered by the Joshis’ former counsel returnable in March of 2014 and one apparently delivered by the Joshis themselves returnable in July of 2014), neither motion has proceeded to a hearing, and the action formally remains dismissed.[^3]

o Second, the Joshis initiated what was described in the material before me as a “Tarion proceeding”, whereby they complained and sought recovery pursuant to a warranty issued to new home owners. However, their complaint then was dismissed by Tarion Warranty, on the basis that the Joshis would not allow proper access to their home to permit adequate investigation of their complaint. The Joshis apparently are in the process of appealing that decision.

o Third, the Joshis made a complaint to the City, which included provision of the report prepared by the Joshis’ engineer, indicating that the foundation of their home was structurally unsafe. Faced with that professional opinion, the City’s building inspector felt obliged to issue an order in May of 2011, pursuant to s.15.9(4) of the BCA, finding the Joshis’ home to be unsafe, and directing remedial action, (including delivery of a remediation plan). The City decided to make the order directly applicable not only to the Joshis, (homeowners with ownership and control of the property), but also to Birani, (which no longer had any right or ability to access the property). According to counsel for the City, this was done because the City was aware of the aforesaid civil action and Tarion proceeding, and therefore felt that Birani was a person “affected” by the make safe order, within the meaning of s.15.9(5) of the BCA.[^4] When there was no compliance with that order, the City then initiated charges against the Joshis and Birani pursuant to the Provincial Offences Act, R.S.O. 1990, c.P.33. Mr Joshi entered a guilty plea in March of 2014, resulting in a fine of $500. After Birani’s retention of criminal counsel and no less than eight pre-trials, the charge against Birani ended in November of 2014 with the Provincial Court’s acceptance of a joint submission that Birani should receive a suspended sentence, owing to its accepted inability to access the relevant property, which in turn made it impossible for Birani to comply with the City’s order.

• As the situation at the Joshi home effectively has remained unchanged, (leaving the City still confronted with a situation characterized by professional engineering opinion as unsafe), the City felt obliged to issue a further and similar “Unsafe Building – Order to Make Safe”, (described in more detail above), on December 19, 2014. Once again, the City chose to not only serve the order on Birani as well as the Joshis, but to name Birani as an additional party directly responsible for execution of the obligations set forth in the order. Once again, Birani has taken the position that it simply has no ability to carry out the obligations set forth in the order, as it has no ownership or control over the underlying property, and the Joshis continue to deny Birani and its engineers any access unless and until Birani agrees to conditions which Birani says are unreasonable.

• Birani then commenced its appeal herein, by service of its Notice of Appeal dated January 7, 2015.

[12] It is common ground that the City has not yet taken the position that the Joshi residence presents any “immediate danger to the health or safety of any person”, requiring an emergency order pursuant to s. 15.10 of the BCA, or other measures to remove the Joshis from the home.

[13] To date, the City has instead made its relevant orders pursuant to s.15.9 of the BCA, finding that the building is merely “unsafe” because the concrete foundation is thought to be structurally deficient.

Party positions

[14] As noted above, the focus of the hearing before me was not determination of the underlying appeal but the question of interim access to the Joshis’ property; something which seems to be a common thread running throughout the history of dispute and disagreement set forth above.

[15] The Joshis did not appear at the hearing before me. However, a review of the material filed with the court makes it clear, I think, that:

• they generally have taken the position that their sampling and analysis provide sufficient confirmation that the entire foundation of the home is defective, thereby entitling them to substantial relief from Birani and/or others;

• they believe further testing of the foundation is unnecessary; and

• their grudging willingness to permit any such access to their property, (in response to Justice Mitrow’s order in the civil action or otherwise), has been qualified from the outset by insistence on conditions which are unreasonable and unacceptable from Birani’s perspective.[^5]

[16] Birani’s position, set forth in its filed material and counsel submissions, generally may be summarized as follows:

• it is frustrated beyond measure by its inability to secure what it views as reasonable access to the Joshi property for the purpose of having its engineers take further samples, and carry out further testing, to determine and confirm the nature and extent of any problems with the relevant foundation;

• it regards such investigation as an obvious and necessary step in the formation of any plan, (and certainly any plan to be proposed by Birani’s engineers), for appropriate remediation;

• it views the City’s actions, in repeatedly ordering Birani to do what it has no ability to do, (thereby exposing Birani to past and prospective prosecutions which it can do nothing to avoid by way of compliance with the orders), as manifestly unreasonable, unfair and absurd;

• it does not think it should be forced to accept formal resurrection of the substantial civil claim against it as a necessary prerequisite to securing access to the property, (i.e., by taking further steps to enforce the order made in the civil action by Justice Mitrow); and

• it says that, pursuant to s.15.9 and section 18 of the BCA, the City has powers sufficient to order that the Joshis grant access to Birani’s engineers for the purpose of taking further samples in the manner requested, and that the Court accordingly has jurisdiction to grant such relief in the context of an appeal pursuant to section 25 of the BCA.

[17] From the City’s perspective, the request for interim relief now being advanced by Birani raises important questions of jurisdiction. In particular, leaving aside the merits of the underlying appeal, (and corresponding questions of whether or not the City could or should have made the relevant orders against Birani), the City says:

• that the court’s jurisdiction to grant relief, in the context of Birani’s appeal pursuant to section 25 of the BCA, is limited in law to what the City’s inspector or CBO are empowered to order in the circumstances;

• that the circumstances here involve what is said to be an “unsafe building”, but not one posing any situation of “immediate danger”, such that the situation necessarily is governed primarily by s.15.9 of the BCA;

• that neither s.15.9 nor section 18 confer any authority on the City’s inspector or CBO to order that a private residential property owner provide access to the engineers of another private party, in the manner suggested by Birani; and

• that the court accordingly has no jurisdiction to grant such relief in the present context, even if it the court thinks such relief may be desirable.

Analysis

[18] At the outset of my analysis, I note and reject the suggestion made by counsel for the City that the immediate jurisdictional concerns could and should have been avoided entirely by Birani pursuing its requested relief through alternate procedures.

[19] Only two such alternatives were raised or suggested:

i. continued attempts to seek such relief in the context of the civil litigation between the Joshis and Birani; and

ii. a new and separate application by Birani, brought pursuant to Rule 14.05, to secure an appropriate mandatory order vis-à-vis the Joshis.

[20] In my view, neither alternative procedure is available to Birani.

[21] As things stand, the very substantial claim against Birani by the Joshis has been administratively dismissed, such that the underlying litigation framework for pursuit of further related interim orders formally does not exist.

[22] Birani has arguments as to why that administrative dismissal should not be set aside.

[23] Without commenting in any way on their merit, I do not think Birani reasonably can be compelled to abandon such arguments for the collateral purpose of reinstating a jurisdictional vehicle through which it can obtain access that might in turn facilitate its compliance with orders being made by the City pursuant to the BCA. On its face, the suggestion not only compels Birani to assume a significant exposure it currently has avoided, but also inherently raises abuse of process concerns.

[24] The suggestion of Birani seeking a mandatory order vis-à-vis the Joshis through a new and separate application is problematic for different reasons. In particular:

• Rule 14.05(3) confines the availability of an application to specified and limited circumstances.

• Although Rule 14.05(3)(h) creates a residual category of permissible applications “in respect of any matter where it is unlikely that there will be any material facts in dispute”, that hardly seems applicable to the present situation, where the need for further samples and testing, and the manner in which that might be done, remain very much in issue.

• Although Rule 14.05(3)(g) permits an application for “an injunction, mandatory order … or other consequential relief”, it does so only when such relief is “ancillary to relief claimed in a proceeding properly commenced by a notice of application”. In other words, one may not pursue an application for a mandatory order on its own. The application in which such relief is sought must be grounded primarily in the pursuit of some other form of underlying relief in respect of which an application is permitted. [Emphasis added.]

• Perhaps most importantly, although Rule 14.05(3)(d) permits an application for “the determination of rights that depend on … the interpretation of a statute”, and that description arguably might extend in the abstract to suggestions that an order made by a building inspector or CBO exceeded the properly interpreted limits of authority extended by the BCA, our courts repeatedly have held that challenges to such orders must instead be pursued by way of the appeal procedure specifically mandated by the Legislature in section 25 of the BCA. See, for example: Toronto District School Board v. Toronto (City), [2014] O.J. No. 2831 (S.C.J.), affirmed 2014 ONSC 5494, [2014] O.J. No. 4575 (Div.Ct.); and Metro1 Development Corporation Ltd. v. City of Toronto, [2014] O.J. No. 3396 (S.C.J.). The latter decision expressly confirmed, at paragraph 25, that “the scheme established by s.25 of the BCA cannot be circumvented by [an] applicant’s application for declaratory relief under rule 14.05(3)”.

[25] In short, if Birani seeks relief in relation to the most recent order made against it by the City, (including interim relief permitting its engineers to access the Joshi property for the purpose of taking further samples for analysis), it seems compelled to do so within the mandated context of an appeal to this court pursuant to section 25 of the BCA.

[26] However, as noted above, the threshold question raised squarely by the City is whether the court has jurisdiction, in that specific section 25 appeal context, to grant the type of interim relief sought by Birani.

[27] Counsel for Birani and counsel for the City both candidly acknowledged that they were unable to find any specific authority dealing with that question.

[28] Substantial reliance therefore was placed on the wording of the relevant primary legislation, set forth in the BCA.

[29] In that regard, it was not disputed that, in exercising the appellate jurisdiction conferred by section 25 of the BCA, our court does not have unfettered jurisdiction to take whatever action and/or fashion whatever remedies it considers appropriate to the circumstances.

[30] In particular, section 25 of the BCA both confers and limits the court’s relevant appellate jurisdiction, as demonstrated in the following provisions:

Appeal to court

25. (1) A person who considers themself aggrieved by an order or decision made by the chief building official … or an inspector under this Act … may appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made. …

Powers of judge

(4) On an appeal, a judge may affirm or rescind the order or decision or take any other action that the judge considers the chief building official … or inspector ought to take in accordance with this Act and the regulations and, for those purposes, the judge may substitute his or her opinion for that of the official … or inspector.

[Emphasis added.]

[31] In other words, a judge of the Superior Court of Justice exercising the appellate jurisdiction conferred by the BCA is permitted to “step into the shoes” of the CBO or inspector to exercise, (albeit in a possibly different fashion and subject to determinations made in accordance with the appropriate standards of review mandated by the authorities)[^6], whatever authority and powers the CBO or inspector might have under the legislation.

[32] However, as emphasized by the Divisional Court in Woodglen & Co. v. North York (City), [1984] O.J. No. (Div.Ct.), at paragraph 10, “the judge has no powers other than those which were possessed by the inspector or chief official, and has no discretion to act or defer action, if that discretion was not enjoyed by the inspector or chief official”.

[33] Thus, as a matter of jurisdiction, if neither the inspector nor the CBO has authority under the BCA to make the sort of orders now being sought by Birani, (i.e., orders permitting Birani’s engineers to access the Joshi property and extract samples in the desired manner, to facilitate further testing by Birani’s engineers), then I too have no such authority.

[34] Counsel for Birani says the City’s inspector or CBO properly could have made such orders, pursuant to the authority conferred upon them by the BCA, and relies in that regard on the wording of s.15.9 and section 18 of the BCA, which read in part as follows:

Inspection of unsafe buildings

15.9 (1) An inspector may enter upon land and into buildings at any reasonable time without a warrant for the purpose of inspecting a building to determine,

(a) whether the building is unsafe; or

(b) whether an order made under subsection (4) has been complied with.

Interpretation

(2) A building is unsafe if the building is,

(a) structurally inadequate or faulty for the purpose for which it is used; or

(b) in a condition that could be hazardous to the health or safety of persons in the normal use of the building, persons outside the building or persons whose access to the building has not been reasonably prevented. …

Order

(4) An inspector who finds that a building is unsafe may make an order setting out the reasons why the building is unsafe and the remedial steps necessary to render the building safe and may require the order to be carried out within the time specified in the order.

Service

(5) The order shall be served on the owners and each person apparently in possession of the building and such other persons affected thereby as the chief building official determines and a copy of the order may be posted on the site of the building.

Order respecting occupancy

(6) If an order of an inspector under subsection (4) is not complied with within the time specified in it, or where no time is specified, within a reasonable time, the chief building official,

(a) may by order prohibit the use or occupancy of the building; and

(b) may cause the building to be renovated, repaired or demolished to remove the unsafe condition or take such other action as he or she considers necessary for the protection of the public.

Power of entry

(7) For the purpose of clause (6)(b), the chief building official, an inspector and their agents may enter upon land and into buildings at any reasonable time without a warrant. …

Powers of inspector

18. (1) For the purposes of an inspection under this Act, an inspector may, …

(d) be accompanied by a person who has special or expert knowledge in relation to a building or part thereof;

(e) alone or in conjunction with a person possessing special or expert knowledge, make examinations or take tests, samples or photographs necessary for the purposes of the inspection; and

(f) order any person to take and supply at that person’s expense such tests and samples as are specified in the order.

Samples

(2) The inspector shall divide the sample taken under clause (1)(e) into two parts and deliver one part to the person from whom the samples were taken, if the person so requests at the time the sample is taken and provides the necessary facilities.

Idem

(3) If an inspector takes a sample under clause (1)(e) and has not divided the sample into two parts, a copy of any report on the sample shall be given to the person from whom the sample was taken.

[35] Relying in particular on ss.15.9(4), 15.9(7), 18(1)(d), 18(1)(e) and 18(1)(f), counsel for Birani says that the City’s inspector, and therefore the court, has the power to:

• make an order setting out any “remedial steps” that may be necessary to render the building safe;

• authorize an agent to enter upon land and into buildings at any reasonable time without a warrant;

• bring a person to the property who has special or expert knowledge in relation to a building or part thereof;

• in conjunction with a person possessing special or expert knowledge, make examinations or take tests, samples or photographs; and

• order any person to take and supply tests and samples at that person’s expense.

[36] Using such powers, counsel for Birani says the inspector, and therefore the court, is capable of making and fashioning an order that effectively would authorize Birani’s engineers to access the Joshi property and take samples in the manner desired by Birani.

[37] With respect, I feel compelled to agree with counsel for the City that doing so would require a tortured and inappropriate reading of the relevant BCA provisions, particular insofar as it essentially would involve lifting wording out of its context, and clearly intended restrictions, for a purpose not contemplated by the legislation.

[38] Without limiting the generality of the foregoing:

• It seems clear to me that the aforesaid provisions are designed to facilitate an inspection by the inspector, whereas Birani’s request is clearly focused on facilitation of an inspection by Birani and its engineers.

• For example, the s.15.9(7) power of warrantless entry upon land and into buildings may be exercised only by the CBO, an inspector and their agents; i.e., agents acting on behalf of the CBO and/or inspector as the relevant principals. What Birani suggests is something fundamentally different; i.e., authorized entry onto the Joshi property by agents employed by Birani as principal.

• The s.15.9(7) power of warrantless entry also is circumscribed by its opening words, which make it clear that the power is to be exercised only “for the purposes of clause 6(b)”. That in turn limits exercise of the power to situations where a s.15.9(4) order has been made by the inspector, with no resulting compliance “within the time specified in it” (where such a time is specified), and where entry is being made to renovate, repair or demolish the building in question “to remove the unsafe condition”, or to take such other action the inspector considers “necessary for the protection of the public”. In the case before me, time for compliance with the relevant s.15.9(4) order has not yet expired. Nor would the desired entry and investigation by Birani’s engineers “remove the unsafe condition”. (Birani wants its engineers to carry out the desired investigation to assist in determining whether or not there is an unsafe condition, and if so, to aid in the determination of how that unsafe condition might best be remedied.) Nor is there any evidence that the desired entry and work by Birani’s engineers is necessary “for the protection of the public”.

• All of the powers conferred by s.18(1) are expressly limited by the opening proviso indicating that they may be exercised “for the purposes of an inspection under this Act”. In the context of s.15.9, dealing with “unsafe buildings”, s.15.9(1) makes it clear that the relevant “inspection” is to be done by “an inspector”, which s.1(1)(d) of the BCA generally defines as “an inspector appointed under section 3, 3.1, 4, 6.1 or 6.2”. Having reviewed those provisions, none contemplates a private party such as Birani or its engineers assuming such a role for the purpose now being suggested.

• The provisions of s.18(1)(d) and s.18(1)(e) clearly contemplate a specialist or expert attending and/or working with an inspector. That is not what is contemplated by the relief now being sought by Birani, which simply wants its engineers to have access so that they can carry out their independent work and investigation.

• The provisions of ss.18(2) and 18(3) also inform the proper interpretation of the powers conferred in s.18(1)(e), and in my view make it clear that any samples taken are intended to be for the benefit of an inspector, into whose possession any samples initially must be placed. (The provisions requiring the inspector to then divide and share the sample on request, or to provide a copy of any report on the sample if there is no such division, otherwise make no sense.) Moreover, the repeated references to “the person from whom the sample was taken” indicate that, apart from the inspector, the only party intended to receive a portion of a taken sample, or a copy of any report on a taken sample, was the party from whom the sample was taken, (which in this case would be the Joshis), and not any third party who may have assisted in taking of the sample.

• In my opinion, the fact that s.18(2) and s.18(3) make reference only to s.18(1)(e), and not s.18(1)(f) as well, is also instructive. In particular, the legislature apparently thought it necessary to provide the “person from whom the sample is taken” with rights to a portion of the sample, or a copy of any report on the sample taken, only in circumstances where the sample was removed by the inspector and/or a specialist or expert working with the inspector. Such rights were not thought necessary in relation to any samples taken and provided by a person ordered to do so pursuant to a s.18(1)(f) order. The sensible inference is that such rights were considered unnecessary in the s.18(1)(f) context because the provision contemplates that the person ordered to take and provide a sample, and the person “from whom the sample is taken”, effectively will be one and the same; i.e., such that the person in question will have access to the taken sample anyway. This in turn supports a reasonable inference that the legislature did not contemplate or intend that s.18(1)(f) would be employed to order the taking of a sample by someone other than the person from whom the sample was taken, as Birani suggests.

[39] In my opinion, the various provisions of the BCA relied upon by Birani therefore were never meant to be used in the manner now being suggested.

[40] Moreover, I am mindful of the reality that, although it would be a court using the suggested powers in such a way on this particular occasion, (if I granted the relief being requested by Birani), my decision would represent authority for the proposition that an inspector or CBO generally has such powers.

[41] In other words, my granting such relief necessarily would entail a finding that an inspector or CBO has authority, in the normal course, to make orders compelling a reluctant private homeowner to open his or her property to other private parties who are not working with and for the inspector or CBO, but who instead are seeking to advance their own interests; interests which may be quite adverse to the interests of the homeowner.

[42] Such an interpretation would be quite at odds with the purpose and intention of the BCA, which clearly seeks to strike a delicate balance between the interests of homeowners and the limited powers of intervention conferred upon government authorities charged with protection of public interests.

[43] In that regard, I note and endorse the following observations of Justice Ratushy in Gordon v. North Grenville (Municipality), [2011] O.J. No. 1632 (Div.Ct.), at paragraphs 36-37:

The appellant submits that the Building Code Act and the Building Code is carefully crafted legislation balancing the interests of society with the interests of a property owner, with specific responsibility given to designated officials such as the CBO, an inspector and others. I agree with this broad statement and add that the societal interest promoted by this legislation is directed towards public safety by ensuring buildings adhere to approved standards and guidelines.

I also agree that public safety is not the only goal of the Building Code Act and the Building Code. The Interpretation Act provides that every Act shall be deemed “remedial” and be given a broad interpretation. If public safety were the only objective of the Building Code Act, there would be no need, for example, to set out limiting powers for inspectors and chief building officials. Instead, the Legislature could have simply vested chief building officials with all-encompassing powers to undertake any measures necessary in the circumstances. However, this it did not do. When this legislation is viewed as a whole, in my view, it indicates that the Legislature intended to promote public safety but aimed to do so in a manner that balanced the rights of all parties involved, especially those of property owners. The interpretation given to s.15.9 of the Building Code Act, therefore, must reflect the balance the Legislature sought to achieve between the various interests affected by this legislation.

[44] In my view, interpreting and applying the BCA, in the manner suggested by Birani, would represent an unintended and improper disruption of the delicate balancing of rights contemplated by the Legislature.

[45] For these reasons, I find that I simply have no jurisdiction to grant the interim relief sought by Birani, insofar as its request for access to the Joshi property is concerned.

[46] As counsel for Birani suggested, the absence of any mechanism in the BCA to facilitate Birani’s desired access to the property may lend additional support to its arguments that the making of s.15.9 orders against those with no effective ability to carry them out was something never intended by the Legislature, and/or that the City’s decision to make such an order against Birani was “unreasonable”.

[47] However, that is a matter for determination in the underlying appeal.

[48] As noted at the outset, Birani requested not only access to the property, but ancillary relief in the form of an adjournment of the appeal, and a stay of certain portions of the order made by the City on December 19, 2014.

[49] While I do have power to adjourn the appeal, and/or stay operation of the City’s order or portions thereof pursuant to s.25(7) of the BCA pending disposition of the appeal “on such terms as are just”, it seems to me that such relief also would be inappropriate in the circumstances.

[50] An adjournment was being sought only to facilitate completion of the contemplated work by Birani’s engineers, and Birani’s preparation of a plan of remediation based on their engineers’ analysis and findings. As I am unable to order access as requested to permit completion of such work, the basis for the suggested adjournment falls away.

[51] As for the requested stay of the city’s order, or portions thereof, it seems to me that I cannot grant such relief without an implicit finding that the making or operation of the order is somehow unjust or inappropriate – which is the essence of the central issue to be decided on the underlying appeal.

[52] Moreover, it must be remembered that the order in question is one intended to address a situation involving a building that is thought to be unsafe. An indefinite stay of such an order, without a substantive finding that the order should not have been made, and/or more persuasive evidence that no harm is likely to result from such a stay, seems unwise.[^7]

[53] In the result, all of the interim relief requested by Birani is denied.

Costs

[54] Because my substantive decision was going to be reserved, I asked counsel to make cost submissions having regard to the alternative outcomes of success or failure for their respective clients.

[55] Counsel for Birani submitted that, if Birani succeeded in obtaining the relief requested, it should recover costs on a partial indemnity basis fixed in the amount of $5,000, but that if it was unsuccessful, no more than $1,500 in partial indemnity costs should be awarded to the City.

[56] As suggested justification for that differential approach, counsel for Birani noted that it effectively had been required to do the “heavy lifting”, in terms of compiling and presenting material sufficient to make the court aware of the relevant history and legislative framework. In other words, it was submitted that the City’s lawyers were obliged to do considerably less in responding to Birani’s request for interim relief, and that this was reflected in the parties’ respective filings and submissions.

[57] Counsel for the City did not take great issue with Birani’s cost submissions, except to suggest, (consistent with the City’s view of the material filed by Birani in relation to the underlying appeal), that not all of the material and information tendered by Birani was relevant or necessary.

[58] Given that counsel for the City was obliged in any event to review the substantial amount of material filed by Birani, it was suggested that $1,500 in partial indemnity costs would be an appropriate cost award to Birani or the City in the event of success.

[59] Having regard to the substantive outcome, the City’s position in relation to Birani’s request for interim relief was vindicated.

[60] However, while costs normally follow the event, I am not inclined to award costs in these particular circumstances.

[61] As the City itself acknowledged, this was a somewhat novel situation in respect of which there appears to have been no authority directly on point.

[62] Moreover, given the position in which Birani finds itself, (which includes the prospect of further prosecution for failing to comply with the City’s latest order), the attempt to secure such interim relief was not unreasonable. Indeed, Birani otherwise might have been faulted, (in other contexts if not in relation to the appeal), for failing to exhaust all possible avenues of attempted compliance with the City’s latest order.

[63] There accordingly shall be no costs awarded in relation to Birani’s request for interim relief.

“Justice I. F. Leach”

Justice I F. Leach

Date: February 17, 2015

[^1]: Evidence filed by the appellant confirmed that Mr Joshi repeatedly engaged in direct email communications with counsel for Birani, (copied to counsel for the City), as recently as January 16, 18 and 19, 2015, notwithstanding earlier indirect indications from a lawyer formerly representing the Joshis that Mr Joshi suffered a heart attack on December 31, 2014. An affidavit of service also confirmed that, on February 6, 2015, filings for the indicated hearing before me were sent to the Joshis by courier. However, the Joshis then filed no responding material, and gave no indication that they intended to participate in the hearing. When the matter came before me for hearing late in the morning of February 11, 2015, neither the Joshis nor any representative of the Joshis appeared, although they were paged.

[^2]: The Joshis have sought to impose a wide variety of conditions before they will agree to permit any access to their property or the taking of further samples. Some of these relate to the location, extent and manner of sample extraction. Some relate to desired steps to minimize potential disruption and risk to the Joshis; (e.g., through Birani committing to ensure worker safety, to obtain certain liability insurance, to carry out specified work to patch the sample areas and redress any excavation work with stipulated fill and landscaping measures, and to provide reimbursement for the cost of the Joshis relocating to temporary alternative accommodation). Other conditions relate to the manner in which samples will be labeled, preserved and tested, (in the presence of engineers retained by the Joshis), apparently to prevent tampering. Birani has indicated its willingness to accept some but not all of the conditions the Joshis seek to impose as prerequisites to the granting of access and the taking of any further samples. In particular, Birani has emphasized that the Joshis cannot reasonably dictate the sampling and testing methodology to be employed by Birani’s engineering experts, and that the taking of samples should not be limited to isolated areas specified by the Joshis.

[^3]: A hearing of one or both motions to set aside the administrative dismissal apparently was scheduled for January 5, 2015, but was adjourned indefinitely in response to indications, mentioned above, that Mr Joshi had suffered a heart attack over the holidays.

[^4]: I note that, on its face, s.15.9(5) of the Code merely requires service of such an order on “the owner and each person apparently in possession of the building and such other persons affected thereby as the chief building official determines”. It does not, on its face at least, require that such “other persons affected” be named in the order as parties upon whom the Order’s obligations are directly imposed. Yet the City, through its inspector, chose to impose the Order’s obligations on Birani as well.

[^5]: As noted above, the material filed for my review included emails sent by Mr Joshi. One sent on January 18, 2015, confirmed once again that Birani would be permitted to conduct testing only on previously indicated terms that were acceptable to the Joshis and their engineers, (but rejected by Birani and its engineers).

[^6]: The appropriate standard of review in this area is a blend of two tests; i.e., a standard of correctness for questions of law and a standard of reasonableness for questions of fact. The more the initial decision is dependent upon factual determinations within the special expertise of the inspector or CBO, the more deferential will be the standard. Generally speaking, however, a standard of correctness will be applied to decisions based on law or jurisdiction and a standard of reasonableness will be applied to questions of fact. Within the standard of reasonableness, the degree of deference or the “weight” to be given to any particular determination will depend on the circumstances. See, for example: Runnymede Development Corp. v. 1201262 Ontario Inc. (2000), 2000 22337 (ON SC), 47 O.R. (3d) 374 (S.C.J.); Burns v. Perth South (Township) Chief Building Official (2001), 2001 28064 (ON SC), 54 O.R. (3d) 266 (S.C.J.); and 1218897 Ontario Ltd. v. Toronto (City), 2005 39872 (ON SC), [2005] O.J. No. 4607 (S.C.J.).

[^7]: Similar considerations may have prompted the Legislature’s decision to provide, in s.25(7) of the BCA, that an appeal pursuant to s.25(1) does not stay the operation of the order or decision appealed from, unless a judge stays operation of the order or decision until disposition of the appeal.