ONTARIO SUPERIOR COURT OF JUSTICE

Editor’s note: Erratum released September 15, 2015. and appended to the original decision. The corrections were not integrated in the original reasons.

COURT FILE NO.: CV-14-511877
DATE: 20150807

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

city of toronto and ANN BOROOAH, CHIEF BUILDING OFFICIAL for the CITY OF TORONTO
Applicant

– and –

PAULINE TSENG, SHIH DRUM TSENG and YANG FENG TSENG
Respondents

Mark Siboni and Christopher J. Henderson, for the applicant

Pauline Tseng, Shih Drum Tseng and Yang Feng Tseng, appearing in person

HEARD at Toronto: July 9 and 10, 2015

REASONS FOR JUDGMENT

Stinson J.

[1] This is a relatively straightforward dispute with an unfortunately long history. It concerns the construction of a two storey addition to a residence, which was carried out without zoning approval and without the issuance of a building permit.

[2] Construction was completed in 2006. Eventually, after considerable litigation, in 2013 the owner obtained zoning approval and a building permit.

[3] Since early 2014, the City has been trying to arrange for an inspection of the property to ensure that the construction and use of the building is in conformance with the issued building permit. The Owner has refused to permit that inspection and has failed to comply with orders issued by the city building inspector to permit the inspection to take place. As a result, this application was commenced.

[4] In particular, the City seeks (a) an order requiring the owner to allow it to conduct an inspection of the property to determine whether the construction complies with the building permit and plans filed by the owner; (b) an order requiring the owner to provide inspection reports relating to the construction and; (c) in the event the owner fails to provide the inspection reports, an order authorizing the City to uncover parts of the construction and perform whatever tests it needs to in order to obtain satisfactory inspection reports.

[5] In general terms, the position of the respondent owner is that the City lacks the statutory authority to obtain the relief sought. The owner argues that, on a proper interpretation of the relevant legislation, the City must obtain a warrant in order to conduct an inspection. Further, the owner submits that an order to uncover the completed construction may only be obtained where there is reason to believe that the construction is somehow deficient. Finally, and in any event, the owner submits that the relief sought by the city should be refused on the ground that it would violate the owners' rights under s. 7 of the Canadian Charter of Rights and Freedoms.

Factual Background

[6] Before proceeding with an analysis of the parties' submissions, some additional background is necessary. The property in question is a semi-detached house located in downtown Toronto (the “Property”). It has been owned by various members of the Tseng family at all relevant times. Mr. Shih Drum Tseng and Ms. Yang Feng Tseng are the father and mother of Peter Tseng, Vanessa Tseng and Pauline Tseng. According to the parcel register, Peter Tseng became the sole owner of the Property in July 2006. He subsequently transferred ownership to himself and his sister Vanessa. In March 2007, Peter Tseng and Vanessa Tseng transferred title to themselves and their parents, Shih Drum Tseng and Yang Feng Tseng. In January 2011, Peter Tseng, Shih Drum Tseng, Vanessa Tseng and Yang Feng Tseng transferred title to Pauline Tseng. Thus Pauline Tseng was the sole registered owner of the Property when this proceeding was commenced in September 2014. I am told that, subsequent to the commencement of this proceeding, in or about March 2015, Pauline Tseng transferred title to herself and her parents. Thus the current registered owners of the Property are Pauline Tseng, Shih Drum Tseng and Yang Feng Tseng.

[7] In light of the fact that all these transfers were among family members and not at arms' length, I do not consider the transfers to be material for present purposes. In particular, all of the current owners, being Pauline Tseng and her parents, are fully aware of and familiar with the history of the proceedings and the dealings between the owners on the one hand and the City on the other. Indeed, Pauline Tseng informed the court that the reason behind the various transfers was because some of the family members no longer wished to be engaged in litigation with the City.

[8] In light of the fact that the parents had again become titleholders (albeit after this proceeding was commenced), Pauline Tseng sought to have them added as named respondents. I agree that is appropriate, and I make such an order nunc pro tunc, as I indicated I was prepared to do during the course of the hearing. By that I mean, I was prepared to add the parents as co-respondents, with effect from the start of the proceedings, so that they would be bound by the outcome. I was not prepared to adjourn the proceedings, however. The City commenced this application in September 2014, with a return date of May 2015. In October 2014, at an appearance in Motions Scheduling Court, Himel J. fixed a timetable for the exchange of material. Despite that timetable, no material had been filed by any of the respondents by May 14, 2015. On that date, at their request, I granted the respondents an adjournment to July 9 and fixed a new timetable. Once again, the respondents did not comply with that timetable. I therefore directed the matter to proceed on July 9.

[9] Despite having been provided with several timetables to do so, the Tsengs did not file any affidavit evidence or factum in advance of the July 9, 2015 appearance before me. On July 9, Pauline Tseng was given leave to file a factum and, subsequently, a brief of authorities. As well, during the course of her submissions, and with the consent of the applicant, Ms. Tseng was permitted to file a series of documents upon which she wished to rely. For sake of completeness, I list below the materials that comprised the Record before me:

Book No.

Title/Description

1
Application Record

2
Supplementary Application Record – Jun 19, 2015

3
Amended Factum of the Applicants – June 19, 2015

4
Book of Authorities of the City of Toronto – March 31, 2015

5
Factum of Respondent

6
Transcripts of Cross-Examination of Mario Angelucci on November 24, 2011 (admitted for contents of pages 63-66 only)

7
Curriculum Vitae and Bibliography of Barry H. Roth, M.D., prepared February 18, 2014

8
Letter from Dr. Michael S.C. Ho to Mr. Tseng, Shih Drum – October 10. 2011-

9
Letter from Dr. Michael S.C. Ho to Mrs. Tseng, Yang Feng - October 10, 2011

10
Extract from Toronto City Council website – City Council consideration on November 27, 2012

11
Number not used

12
Number not used

13 [sic]
Extract from Toronto City Council website – City Council consideration on April 1, 2014

14 [sic]
Letter from M.G. Pascoe & Associates Ltd. to Mr. Paul Tseng – December 16, 20144

Book of Authorities of Respondent

[10] I should add that Pauline Tseng is an Ontario-educated lawyer. She is called to the Bar of New York, although not the Bar of Ontario. Nevertheless, she presented extensive legal argument and filed professionally prepared materials.

[11] For the remainder of these Reasons, and in light of the respondents’ common positions, I shall refer to them collectively as “the Tsengs” or “the Owner” save where it is necessary to distinguish among them.

[12] Although the history of dealings between the City and the Tsengs in relation to the Property is somewhat lengthy, it can be briefly summarized. In 2006, the City received a complaint that a two-storey addition was being constructed at the rear of the semi-detached house located on the Property. No application for a building permit had been received by the City and therefore no permit had been issued. Despite the lack of a building permit, construction proceeded and the addition was completed. In addition to the lack of a building permit, the addition as built did not comply with the City of Toronto zoning bylaw.

[13] Ultimately, the City commenced proceedings in 2011 seeking an order that the Owner obtain a building permit for the addition or remove it. In due course, Pauline Tseng (by the then sole owner) consented to a judgment of the Superior Court that required her to apply for zoning variances to legalize the addition, and to apply for a building permit. She ultimately obtained the required variances and applied for and was granted a building permit.

[14] In the usual situation, i.e. when a building permit is obtained before construction begins, City building inspectors normally carry out inspections of the construction work at designated intervals in order to be satisfied that it conforms to required standards and the approved plans. Indeed, s. 10.2 pursuant to the Building Code Act, 1992, S.O. 1992, c. 23, (the “Building Code Act”), and the terms of the standard form of building permit issued by the City, an owner is required to notify the City at designated stages of the construction process, so that a building inspector may attend the site to inspect and approve the work as it proceeds.

[15] In the present case, because the construction was completed before the building permit was issued, that process could not be followed. Where construction has proceeded without the issuance of a building permit and/or without the City being notified of the construction at the prescribed stages, it is a common practice for the City to require reports from architects, engineers or other qualified professionals as a means of satisfying itself that the construction complies with Ontario’s Building Code, O. Reg. 350/06 (the “Building Code”).

[16] In this case, following issuance of the building permit, the City sought to arrange for an inspection of the addition and contacted Pauline Tseng for that purpose. In response to the City’s request, Pauline Tseng wrote back accusing the City of torture and cruel and inhuman or degrading treatment. She made no mention of inspections. In view of that response, the City proceeded to issue inspection orders requiring the Owner to submit reports prepared by a professional engineer stating that the necessary construction was consistent with the work depicted in the approved permit plans and the Building Code. The orders also required whatever tests or samples as may be necessary to be taken so that a professional engineer, architect or designer could supply reports confirming that the construction was consistent with the plans and the Building Code.

[17] In response to the orders issued by the City, the Tsengs commenced a court application against the City in March 2014 in Court File No. CV-14-500556. Although it was before Himel J. in Motions Scheduling Court in October 2014 at the same time as this application, and was subject to the same timetable, no further steps have been taken by the Tsengs in relation to that proceeding. At the appearance on May 14, 2105, I adjourned it to a date to be fixed.

[18] In light of the Tsengs’ position, the City commenced the within application in September 2014. The history of these proceedings since that date has been described above. While this application was pending, and without filing any responding material, Pauline Tseng transferred title to herself and her parents. On March 10, 2015, they issued a statement of claim against the City alleging misconduct of City officials in relation to the dispute concerning the Property, since 2006.

Analysis

[19] The City’s application is brought pursuant to s. 38 of the Building Code Act. That section provides as follows:

38.(1) Where it appears to a chief building official that a person does not comply with this Act, the regulations or an order made under this Act, despite the imposition of any penalty in respect of the non-compliance and in addition to any other rights he or she may have, the chief building official may apply to the Superior Court of Justice for an order directing that person to comply with the provisions.

(2) Upon the application under subsection (1), the judge may make the order or such other order as the judge thinks fit.

[20] The City is thus seeking court orders that would require the Owner (1) to allow the City’s building inspectors to inspect the construction, (2) to comply with the two orders previously issued, and (3) to produce the reports required. Among the specific relief sought is an order authorizing the City’s representatives to enter onto the Property and uncover the construction and perform whatever tests and take whatever samples they deem necessary in order to produce and obtain inspection reports.

[21] The City’s position is relatively straightforward. It submits that the construction was carried out without the permit required by s. 8 of the Building Code Act. As well, the inspections required by s. 10.2 at various stages of the construction were never carried out. Since the Owner did not comply with the Act, the court has authority to direct compliance. This includes permitting inspections to be carried out by the City, requiring the Owner to produce reports concerning the construction or if such reports are not forthcoming to allow the City to inspect and uncover such aspects of the construction as are necessary in order for it to have the required reports prepared.

[22] In response to the City’s submissions, the Owner raises several arguments. First, the Owner asserts that, because the Property is used as a dwelling house, no entry under the Building Code Act is permitted except with the consent of the occupier or pursuant to a warrant. The Owner relies on s. 16 of the Act. That provision makes it clear that a warrant is only available pursuant to s. 21 of the Act. In turn, a prerequisite for issuing such a warrant under s. 21 is the existence of reasonable and probable grounds to believe that an offence has been committed and that entry into the building will afford evidence relevant to the commission of the offence. The Owner argues that there are no grounds which would justify issuance of a warrant. As a consequence, the argument concludes, no authority exists for the court to grant an order that would require or permit a mandatory inspection by City officials.

[23] While the submission of the Owner is superficially attractive, upon closer examination, in my view, it is not supportable. Various specified sections of the Act provide that an inspector may enter a property without a warrant. Section 16(1), however, provides that certain of those "warrantless entry" powers cannot be used in relation to a place actually being used as a dwelling. Thus, if the City were seeking to exercise a right to enter under those enumerated sections, the warrantless entry power would not apply. Instead, the requirements of s. 16(1) would have to be satisfied, one of which is the issuance of a warrant under s. 21.

[24] Resort to the foregoing provisions, however, is unnecessary where the right to enter is provided elsewhere in the Building Code Act. Where that right is found elsewhere, s. 16(1) does not apply.

[25] In the present case, the City is moving under s. 38 of the Act. That section empowers the court to order compliance with the Act. The specific provisions in relation to which compliance is sought in this proceeding, are found in ss. 10.2(1) and 10.2(2). Those provisions require an owner to notify the City at various inspection stages and for the City to carry out inspections at the stages specified in a building permit. There is no issue regarding consent to entry in such situations because allowing inspection is a condition of the issuance of a building permit. Put simply, where an owner wishes to build and requires a building permit, the owner knows that inspections will be necessary, and thus gives implicit consent for city representative to enter the property to carry them out. This, in the present case, the City is merely seeking to discharge its statutory obligation under s. 10.2(2), and it needs no warrant to do so.

[26] In any event, s. 38 involves an elaborate judicial process: the commencement of a proceeding by notice of application; service of notice on the responding party; an opportunity to be heard by presenting evidence and by making submissions before the judge. To this extent, a s. 38 application is a more elaborate judicial process than is ordinarily applicable in connection with an application to obtain a search warrant, which is most often brought without notice to the responding party. Thus, not only is a s. 38 proceeding a judicial process, but the responding party ordinarily has an automatic opportunity to participate. Further, a s. 38 application pre-supposes belief by the Chief Building Official that the owner has not complied with the Act. It is self-evident that the Owner did not comply with the Act in the present case, since the construction was completed without a building permit having been obtained. This is a violation of s. 8 of the Act.

[27] I would further note that the warrant authority found in s. 21 of the Act is inappropriate in the present case. A warrant under s. 21 is a tool to be used where there are reasonable and probable grounds to believe that an offence has been committed. As such, it is a tool that may be appropriate for the investigation of a potential offence and a possible prosecution; it is not the tool that should be used here, however, because this is not a case in which the City is pursuing a prosecution. Rather, here the City seeks to inspect the building for health and safety purposes. It is incontestable that the construction took place without authorization or a permit.

[28] In my view, an owner cannot build a structure illegally and then, as a basis for resisting the inspection(s) it should have permitted all along, claim it is a dwelling. In other words, an owner cannot rely on non-compliance with the statute as a shield to resist attempts by the City to seek compliance.

[29] I therefore reject the Owner’s submissions on this point. Instead, I conclude that s. 38 is sufficient authority for the City to obtain the relief it is seeking.

[30] In relation to the City’s request for a court order that would authorize parts of the construction to be uncovered for purposes of carrying out the inspection and such tests as are necessary, the Owner submits that s. 13(6) is the only provision in the Act that allows for an order to uncover. The Owner argues that the City must have good reason to believe that the building was not constructed in compliance with the Act, that is, there is something defective about the construction.

[31] I do not accept that submission. Section 13(6) provides for an order to uncover "that part of a building that is covered or enclosed [that] has not been constructed in compliance with this Act.". Plainly, that is the case here. This addition was constructed by the Owner without obtaining a building permit, in breach of s. 8 and thus, by definition, it was not “constructed in compliance with the Act”. It was therefore open to the City to make an order requiring such portions of the building as are necessary to carry out the required inspection be uncovered. It is equally open to the court to make such an order under s. 38.

[32] During the course of the hearing before me, the Owner proffered a letter from an engineer dated December 14, 2011 (marked as Book 14). The City was unable to verify that it had received this letter before. The Owner asserts that this is evidence that Building Code-compliant construction had been carried out. I leave it to the City to evaluate the contents of that letter to determine whether it answers any of the City’s concerns. I further note that the Owner referenced certain previous reports contained in the record (e.g. from the fire inspector and from the electrical inspection authority) which, it submitted, also were responsive to the City’s concerns. Once again, I leave it to the City to evaluate those reports to consider their sufficiency for the City’s requirements.

[33] The Owner further argues that the City is carrying out a selective prosecution, that it has been dilatory in pursuing many other property owners who had breached the Building Code Act by building without permits and that relief should be denied on this basis. That argument was made in Polai v. City of Toronto, 1972 22 (SCC), [1973] S.C.R. 38. In that case, the Supreme Court held that "lax enforcement" could not afford a defence. In the words of the Court "it is no defence… to say that there are other cases of infringement which had not been questioned. … The City, in this action, is seeking to protect and enforce a public right, and should not be denied the remedy of injunction merely because others, in addition to the defendant, are guilty of similar violations and have not been restrained."

[34] In the present case, rather than selective prosecution, I find that the City is acting appropriately in the pursuit of its public duty under the Building Code Act. In Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298, the City had failed to insist that certain construction be uncovered to allow inspection to take place. Ultimately, that construction was found to be deficient and the City was sued for negligence. The Supreme Court of Canada upheld a finding of liability made by the trial judge as against the City.

[35] It is thus apparent that, where the City fails to discharge its statutory obligation to inspect, it remains exposed to liability in favour of someone who may be harmed as a result. The current Owner may sell the Property. It may subsequently emerge that the construction of the addition was somehow deficient. In that event, the City would be exposed to a claim for failing to take appropriate steps to inspect, despite having knowledge that the construction had been carried out without a permit. I am not prepared to fault the City for following through where construction has been carried out without a permit, so as to satisfy itself that the construction is Building Code-compliant. This submission therefore fails.

[36] The final submission made by the Owner is that to allow the City to obtain the relief it seeks, to permit inspection and potential uncovering of parts of the construction, would violate the Owner’s rights under s. 7 of the Canadian Charter of Rights and Freedoms. That section provides as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice.

[37] The submission of the Owner is that Mr. and Mrs. Tseng, senior, are in frail health and to allow the City to carry out an inspection may further imperil their health. They submit that an inspection by the City may put their lives at risk. They argue that to allow the City to inspect would thus violate their s. 7 Charter rights.

[38] I do not accept this submission. What the City is attempting to do is discharge its statutory obligation to inspect the construction to ensure it has been carried out in a proper fashion. If anything, the City is attempting to see to the security of the respondents, as occupants of the building: The City's goal is to ensure the premises occupied by the respondents are safe. There is no reason why the City’s actions in conducting the inspection would be carried out in a fashion that would endanger the lives of the respondents.

[39] There is no need for the City inspectors to interact at all with the respondents in order to carry out the inspection. If there is any concern that the attendance by the City inspector will cause them upset, the simple solution is for the parents to be absent from the premises while the inspection is carried out. The parents were in court throughout these proceedings – indeed, the inspection could have been completed while they were in the courtroom. Co-operation by the respondents with the City inspector is the best way to ensure that no upset or harm is caused to the parents.

Conclusion and Disposition

[40] For the foregoing reasons, I conclude that the City has made out a case for the relief it seeks. More specifically, the City is entitled to carry out an inspection of the Property in order to satisfy itself that construction has been carried out in a fashion that is compliant with the Building Code and the permit plans filed with the City. To the extent the Owner has them, I direct the Owner to provide to the City such reports that describe the construction performed. If such reports are unavailable or insufficient, I authorize the City to uncover such portions of the construction as may be necessary for it to carry out such inspections and tests as are necessary to satisfy itself that the construction is compliant.

[41] Needless to say, and as I have previously mentioned, the most desirable way for my order to be implemented is through the cooperation of all concerned. I specifically invite Pauline Tseng to contact counsel for the City to arrange for a suitable date and time for the City inspector to attend. If the parties are unable to make satisfactory arrangements for such inspection to take place within the next 45 days, they may re-attend before me and I will give specific directions.

[42] In relation to costs, if the parties are unable to reach agreement, I direct as follows:

(a) The applicant shall serve its bills of costs on the respondents, accompanied by written submissions within fifteen days of the release of these reasons.

(b) The respondents shall serve their response to the applicant within fifteen days thereafter.

(c) The applicant shall serve its reply, if any, within ten days thereafter.

(d) In all cases, the written submissions shall be limited to three pages, plus bills of costs.

(e) I direct that counsel for the applicant shall collect copies of all parties' submissions and arrange to have

___________________________ Stinson J.

Released: August 7, 2015

COURT FILE NO.: CV-14-511877
DATE: 20150807

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

city of toronto and ANN BOROOAH, CHIEF BUILDING OFFICIAL for the CITY OF TORONTO
Applicant

– and –

PAULINE TSENG, SHIH DRUM TSENG and YANG FENG TSENG
Respondents

REASONS FOR JUDGMENT

Stinson J.

Released: August 7, 2015

COURT FILE NO.: CV-14-511877
DATE: 20150915

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

city of toronto and ANN BOROOAH, CHIEF BUILDING OFFICIAL for the CITY OF TORONTO
Applicant

– and –

PAULINE TSENG, SHIH DRUM TSENG and YANG FENG TSENG
Respondents

Mark Siboni and Christopher J. Henderson, for the applicant

Pauline Tseng, Shih Drum Tseng and Yang Feng Tseng, appearing in person

HEARD at Toronto: July 9 and 10, 2015

ERRATUM OF REASONS FOR JUDGMENT

Stinson J.

[43] The following paragraph replaces the corresponding paragraph in the original reasons for judgment issued on August 7, 2015.

[44] Paragraph 42(e) should read as follows:

I direct that counsel for the applicant shall collect copies of all parties' submissions and arrange to have that package delivered to me in care of Judges' Administration, Room 170 at 361 University as soon as the final exchange of materials has been completed. To be clear, no materials should be filed individually: rather, counsel for the applicants will assemble a single package for delivery as described above.

[45] All other contents in the reasons remain unchanged.

___________________________ Stinson J.

Released: September 15, 2015

COURT FILE NO.: CV-14-511877
DATE: 20150915

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

city of toronto and ANN BOROOAH, CHIEF BUILDING OFFICIAL for the CITY OF TORONTO
Applicant

– and –

PAULINE TSENG, SHIH DRUM TSENG and YANG FENG TSENG
Respondents

ERRATUM OF REASONS OF JUDGMENT

Stinson J.

Released: September 15, 2015