CITATION: Cibulka v. City of Toronto, 2015 ONSC 2477
COURT FILE NO.: CR-14-00000144-00AP
DATE: 20150416
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DENNIS CIBULKA
313 MANOR ROAD EAST
Appellant
– and –
CITY OF TORONTO
Respondent
Self-represented and acting in person
Amanda Ross, counsel for the City of Toronto
HEARD: April 15, 2015
ENDORSEMENT
diamond j.:
[1] This is an appeal from the decision dated November 3, 2014 of the Property Standards Committee – Toronto and East York Panel, which confirmed an Order to Comply issued on September 3, 2014 (the “Order to Comply”) by the City of Toronto (the “City”) with respect to 313 Manor Road East, Toronto (the “property”).
[2] As set out in my handwritten endorsement dated April 15, 2015, the appellant Dennis Cibulka did not arrive in the courtroom until approximately 10:35 a.m., which resulted in the deletion of my original (nearly completed) handwritten endorsement dismissing the appeal. The appeal thereafter commenced on its merits.
[3] After the appellant completed his submissions, counsel for the City requested that, with a view to refuting some or all of the appellant’s submissions, I order a trial de novo with viva voce evidence to be called from two City witnesses, including the investigating officer who attended at the property on August 21, 2014 to take the photographs which led to the Order to Comply.
[4] Up to that point, the appellant had not provided this Court with any sworn testimony, although I confirmed with him that had he taken the necessary oath, he would have adopted all of his submissions to this Court as his evidence in any event.
[5] I then raised a concern with counsel for the City, namely that in my view the Order to Comply appeared quite general and lacking in particulars. Specifically, the Order to Comply lists three alleged defects, with the location for all three defects noted as “throughout building”.
[6] The language uses to described the three alleged defects is quite vague, and states as follows:
(a) the property has not been repaired in accordance with the standards;
(b) immediate action has not been taken to eliminate an unsafe condition; and
(c) the property is not maintained and/or kept clean in accordance with the standards.
[7] The only section relied upon by the City in the Order to Comply is section 629-5.A. of the Toronto Municipal Code, Property Standards. That section states:
The owner of property shall:
(a) repair, maintain and keep clean the property in accordance with the standards and take immediate action to eliminate any unsafe condition.
[8] The terms of the Order to Comply are vague, and arguably incapable of being complied with or enforced. No specific actions are included to instruct the appellant as to how to address or cure the three alleged defects.
[9] In my view, the Order to Comply lacks the necessary particulars to properly inform the appellant of the nature of the required remedial steps to ensure compliance with the Code.
[10] Counsel for the City directed me to sections 15.3(3.1) and 15.3(6) of the Building Code Act, 1992 S.O. 1992 c.23, which states that on an appeal from a decision of the Property Standards Committee, a judge of the Ontario Superior Court of Justice may “confirm, modify or rescind the order to demolish or repair”.
[11] Counsel for the City submitted that to the extent that the Order to Comply was lacking in particulars, this Court could modify the Order to Comply as necessary. In support of this position, the City relied upon the decision of Madam Justice Epstein (as she then was) in Re: Jimeil Holdings Inc. 2000 CarswellOnt 3633 (S.C.J.), a case which also concerned an appeal of a decision of the Property Standards Committee of the City of Toronto.
[12] Counsel for the City drew my attention to paragraph 10 in the Jimeil decision, which states:
“I understand the practical position taken by the City but the wording of the legislation is clear. The City’s approach to particularity does not strictly comply with the requirements of the statute and therefore the Order to Comply is deficient. However, that is not fatal to the validity of the Order as subsections 15.3(3)(a) and 15.3(6) of the Act give me the authority to modify the Order. I order, therefore, that either the City study the wall further to be in a position to provide particulars to Jimeil or that the parties cooperate and, after the necessary degree of investigation, resolve upon a description of the appropriate repairs themselves. The Order shall be modified accordingly.”
[13] In the result, Justice Epstein dismissed the appeal of the decision of the Property Standards Committee subject to the Order to Comply being “particularized”.
[14] In Jimeil, it was not the Court which particularized the deficient Order to Comply. On the contrary, Justice Epstein directed the City (and/or if necessary the parties) to take the necessary investigative steps and thereafter provide those additional particulars to Jimeil.
[15] In my view, this Court lacks the jurisdiction or authority to issue a revised Order to Comply. What Justice Epstein did was direct the City to amend its own Order to Comply as a term of the dismissal of the appeal.
[16] In the within case, I find the terms of the Order to Comply to be deficient and lacking in particulars. Mr. Cibulka does not know “the case to meet”. As a result, rather than proceeding with the balance of the appeal of the current Order to Comply, and risking a potentially moot result in the event the appeal was dismissed and enforcement steps were undertaken, I make the following Order:
(a) The City shall take the required legal steps which it deems necessary in order to provide the appellant with a revised Order to Comply containing the additional particulars.
(b) The City shall provide the appellant with the revised Order to Comply within 10 business days of the release of this Endorsement.
(c) I shall remain seized of this appeal, which will be rescheduled before me on a date to be agreed upon by the parties.
(d) Until further court order or agreement between the parties, the enforcement of the decision of the Property Standards Committee shall be stayed and the current status quo shall remain.
[17] To the extent that costs of today’s attendance are being sought by either party, those costs are reserved to me as the Judge hearing the balance of the appeal to be scheduled.
Diamond J.
Released: April 16, 2015
CITATION: Cibulka v. City of Toronto, 2015 ONSC 2477
COURT FILE NO.: CR-14-00000144-00AP
DATE: 20150416
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DENNIS CIBULKA
313 MANOR ROAD EAST
Appellant
– and –
CITY OF TORONTO
Respondent
ENDORSEMENT
Diamond J.
Released: April 16, 2015