CITATION: Elbasiouni v. City of Brampton, 2015 ONSC 6149

COURT FILE NO.: CV-13-1084-00

DATE: 2015-10-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

AHMED ELBASIOUNI

Pathik Baxi, for the Appellant

Appellant

• and -

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

Charles A. Painter, for the Respondent

Respondent

HEARD: August 6, 2015

AMENDED REASONS FOR JUDGMENT

BARNES, J.

INTRODUCTION

[1] In this case, I must decide whether to admit fresh evidence put forth by the Appellant, after this court rendered judgement, judgement has been entered, the original decision appealed and decision rendered by the appeal court.

[2] This matter centers on a dispute between Appellant and the City of Brampton, the City’s Chief Building Officer (the “Respondents”). The Appellant owns a property with the municipal address of 443 Centre Street in the City of Brampton (the “property”).

[3] The Appellant applied for a building permit for construction on the property. The building permit was granted but subsequently revoked by the Respondents. A legal non-conforming use designation for a basement apartment for the property was issued by the city and subsequently revoked.

[4] The Appellant appealed the decision of the Chief Building Officer to this court and I upheld the revocation of the building permit but restored the legal non-conforming use designation. The Appellant appealed my decision.

[5] On March 19, 2015, the Divisional Court dismissed the Appellant’s appeal of my decision and sent the matter back to the Superior Court of Justice for the purpose of implementing a remediation timetable.

[6] The Appellant then sought to argue a new issue and also to introduce fresh evidence in the form of a document described as Schedule “A” to City of Brampton by-law 270-2004. This schedule is described as “exhibit H” to the affidavit of Ahmed Elbasiouni dated June 8, 2015. The Appellant explained that this exhibit H was part of by-law 270-2004 and it showed that the proper zone for his property is R3A(2)-237 and not R1B(3)-153 as this court determined on August 15, 2013.

[7] The parties agreed that if exhibit H is an authentic document then the correct zoning for the Appellant’s property would be R3A(2)-237 and, therefore, the Appellant’s present construction on the property can continue. In effect, this dispute shall be resolved.

[8] The parties agreed that this court must first determine the authenticity of exhibit H, however, the Respondent maintains the position that this court does not have jurisdiction to consider the fresh evidence or to hear argument on the new issue except to act within the parameters set by the Divisional Court which is the development and implementation of a remediation time table.

[9] On August 21, 2015, I ruled that I had jurisdiction to determine whether exhibit H is an authentic document and to consider any argument relating to its introduction. I also concluded that there is an insufficient evidentiary basis to support a finding that exhibit H is an authentic document. Therefore, I have concluded that exhibit H is not an authentic document.

[10] In the result, the August 15, 2013, decision that the applicable zoning for the property is R1B(3)-153 is unchanged and the remediation timetable previously set by this court remains unchanged. These are my reasons.

HISTORY OF THE PROCEEDINGS

[11] On August 15, 2013, I decided that the Respondents’ stop work order revoking a building permit granted to the Applicant was valid; however, the revocation order was temporarily stayed. In that same order, I declared the Respondents’ decision to revoke the legal non-conforming use designation a nullity.

[12] On August 29, 2013, the Respondents’ prepared a Notice of Appeal of the August 15, 2013, judgment.

[13] On September 9, 2013, I varied my August 15, 2013, order by ordering that any tort claim by the Appellant shall proceed as a separate proceeding. After consulting the parties I also ordered a timetable for remediation.

[14] The Respondents appealed my August 15, 2013, decision. On September 13, 2013, the Respondents amended the Notice of Appeal and limited the ground of appeal to the decision of this court to declare the legal non-conforming use of the building a nullity.

[15] On October 11, 2013, the Appellant brought a motion to stay the remediation timetable, pending the Resolution of the Respondents’ appeal. The motion was heard by Baltman J. The motion was adjourned, at the Respondents’ request, to October 25, 2013. The adjournment was to accommodate the Respondents’ request to cross-examine the Appellant on his affidavit and because counsel with carriage of the file was unavailable on October 11, 2013.

[16] On October 17, 2013, the Appellant appealed this court’s August 15, 2013, decision. The Appellant sought the following:

(a) A permanent stay of the February 20, 2013, revocation of the building permits;

(b) An order that the Chief Building Official provide the Appellant with “all options” available to rectify the violations discovered within a reasonable period of time to avoid revocation of the building permit; or

(c) A new timetable to apply to the Committee of Adjustments within 90 days.

[17] On October 25, 2013, the Respondents informed the Appellant that they were withdrawing their appeal of my August 15, 2013, decision.

[18] On November 12, 2013, the Appellant brought a motion to strike the Respondents’ appeal of my August 15, 2013, ruling on the basis of non-compliance with Rules of Civil Procedure 61.04(1), 61.05(1), 61.08(1). Justice Donohue considered and dismissed the motion with costs awarded against the Appellant.

[19] On December 10, 2013, the Appellant brought a motion seeking leave to appeal the decision of Donohue J. and seeking costs for the motion before Baltman J. The Appellant sought costs for the December 10, 2013, motion for leave to appeal while the Respondents sought an order dismissing the Appellant’s motions and a cost award.

[20] On December 23, 2013, the Appellant delivered a motion record returnable January 7, 2014. The motion sought to stay the remediation timetable set on September 9, 2013.

[21] On January 6, 2014, I dismissed the Appellant’s motion for leave to appeal the decision of Donohue J. and ordered the parties to attend before Baltman J. to address only the issue of costs for the October 11, 2013, appearance before her. I stayed the Chief Building Officer’s order revoking the Appellant’s building permit conditionally until September 10, 2014. No costs were awarded to either party. I stayed the remediation timetable ordered on September 9, 2013, because there was an appeal before the Divisional Court.

[22] On January 7, 2014, a motion brought before Skarica J. was adjourned to be returned before me because I was seized with the matter. The motion was adjourned to January 13, 2014.

[23] On January 13, 2014, I awarded the Respondent $700 in costs. I found that the Appellant had not notified the Respondent’s counsel about the January 7, 2014, motion date and the Appellant had sought the same relief on January 7, 2014, as the motion on December 10, 2013, which I had under reserve.

[24] On February 14, 2014, the Respondents informed the trial co-ordinator that the Respondents were abandoning their appeal.

[25] The Appellant said that on March 1, 2015, he discovered fresh evidence (exhibit H) to support his position that the applicable zone for 443 Centre Street North, Brampton, Ontario, is R2B(1) rather than R1B(3) or any other zone.

[26] On March 16, 2015, the Divisional Court heard the Appellant’s appeal. The court dismissed the Appellant’s appeal, extended the remediation timetable stipulated by me for 12 months and remanded the matter back before me or any other judge selected by the Regional Senior Justice for the Central West Region to supervise the steps necessary to conclude the matter.

[27] On March 23, 2015, I ordered counsel to appear in Court on April 1, 2015, to set a new remediation timetable. Counsel were ordered to meet and discuss a remediation timetable and to file, separately or jointly, a suggested remediation timetable by March 30, 2015.

[28] On April 1, 2015, on consent, I issued an order endorsing the parties proposed remediation schedule. The Appellant was to file an application to the Committee of Adjustment by June 16, 2015, and to have a hearing before the Committee of Adjustment by July 14, 2015.

[29] The Appellant was permitted to file a new motion addressing a new issue. The Appellant’s Notice of Motion and Factum were to be filed by May 1, 2015, and list grounds, including specific legislative grounds. The Respondents were to file and serve responding material by May 22, 2015. Responding material from the Appellant was to be served and filed by May 28, 2015.

[30] On April 30, 2015, the Appellant filed a motion seeking the following relief:

(a) An order amending the August 15, 2013, September 9, 2013, and April 1, 2015, endorsements of Barnes J. to declare that the applicable zone for the Appellant’s property is R2B(1);

(b) An order declaring the applicable zone for the use of the Appellant’s property is R2B(1);

(c) An order declaring the Respondent’s revocation of the Appellant’s building permit is a nullity;

(d) An order declaring the Appellant’s construction is in compliance with the Brampton by-laws governing duplex use and legal non-conforming use;

(e) An order that construction may resume in accordance with previously issued building permits; and

(f) Substantial indemnity costs.

[31] On June 1, 2015, the Respondent sought an adjournment of the Appellant’s motion scheduled to be heard on that date. The objective of this adjournment was to enable the parties to determine whether exhibit H was authentic. The parties had agreed that if this exhibit H is authentic, it will for all intents and purposes resolve the dispute. The Appellant did not oppose the request but requested that if an adjournment was granted certain terms should be imposed.

[32] On June 1, 2015, I issued an order requiring the Respondent to deliver an affidavit from Elizabeth Corazzola by June 3, 2015. The Appellant was to deliver an affidavit from Ahmed Elbasiouni by June 8, 2015. Further, the Appellant was permitted to attend the Archives of the City Clerk on June 1, 2015, to inspect an original copy of by-law 270-2004 to determine if exhibit H was an authentic document. Costs were reserved and the motion was adjourned to June 10, 2015.

[33] On June 9, 2015, the trial co-ordinator advised the parties that I was not available to hear the June 10, 2015, motion.

[34] On June 18, 2015, parties appeared before me. On consent, I issued the following order:

(a) While jurisdictional issues remain alive, the parties consent that the authenticity of the by-law proffered by the Appellant should be decided first. The parties agreed that if the by-law is authentic, it decides the issue in favour of the Appellant;

(b) The Respondents were permitted to file additional affidavits from Mr. Terminisi and Mr. Mazzota by June 30, 2015. The Appellant could file responding affidavits by July 30, 2015;

(c) On consent, leave was granted to cross-examine witnesses pursuant to Rule 39.03. On July 8, 2015, Sumit Mehra, Romika Mehra, Jim McColl, Dan Kraszewski and the Appellant were to be examined;

(d) Sumit Mehra and Romika Mehra were to make themselves available, with the Appellant to provide their last known contact information;

(e) The Appellant and his counsel were ordered to cease contacting the City of Brampton regarding matters pertaining to this proceeding except through counsel;

(f) The Appellant and his counsel were to comply with the Rules of Professional Conduct when contacting third party vendors used by the City of Brampton. When contacting these parties they were to be advised that legal proceedings were underway, that the Respondents were represented by counsel, contact information for counsel, and that they do not have to speak to the Appellant;

(g) On consent, the remediation timetable from April 1, 2015, was varied to set a new date for the Appellant to file an application to the Committee of Adjustment, by September 8, 2015, with a hearing to take place by October 6, 2015;

(h) The Planning and Design Development Department of the City of Brampton was ordered to file a copy of its internal investigations with respect to a technical discrepancy regarding 443 Centre Street North, Brampton, Ontario, and its related reports and correspondence with IDV Solutions. A copy was to be provided to all counsel within 14 days; and

(i) The motion was adjourned to August 5, 2015. Costs were reserved for consideration at the August 5, 2015, motion date.

[35] On July 31, 2015, the parties consented to the late filing of the Supplementary Affidavit of Ahmed Elbasiouni, sworn July 31, 2015.

[36] On August 5 and 6, 2015, the present motion was argued before me On August 21, 2015, I released a decision indicating that I had jurisdiction to hear the present motion, there was insufficient evidence to conclude that the by-law proffered by the Appellant was authentic and the parties were to adhere to the remediation timetable.

THE EVIDENCE OF RICK CONARD AND SUMIT MEHRA

[37] On June 1, 2015, leave was granted to cross-examine witnesses Sumit Mehra and Romika Mehra pursuant to rule 39.03 of the rules of Civil Procedure. The cross examination was to take place on July 8, 2015.

[38] Counsel for Sumit Mehra and Romika Mehra asked counsel for the Respondents to explain why his clients were required to provide evidence. Counsel for the Respondents explained that the cross examination was required to determine the authenticity of a document Mr. Elbasiouni said Mr. Mehra gave to him, upon the sale of the property, and that fraud was suspected and a police investigation was possible.

[39] The Appellant submits that his case was prejudiced because Mr. Mehra, having been made aware of the reason for the cross examination, was concerned about testifying against the Respondents, because Mr. Mehra had an illegal basement apartment when he owned the property. Therefore, his evidence is tainted.

[40] It is not disputed that the Appellant also contacted Mr. Mehra prior to contact by counsel for the Respondent. The Appellant provided Mr. Mehra information about the case and obtained the contact information for Mr. Mehra which he provided to the Respondent.

[41] I am satisfied that the effect of contact by both parties is that Mr. Mehra was well aware of the reason why cross examination of him was required. He was well aware of the positions of both parties; however, I am not prepared to speculate that, because of the fact that he operated an illegal basement while he owned the property, he had decided to give false testimony in favour of the Respondents.

[42] If this was such an important point it was open for the Appellant to seek leave of that court so that Mr. Mehra could be crossed on this point, however, he chose not to do so. There is also no evidence that Mr. Mehra was questioned on this motive to provide false evidence. In the absence of properly admissible evidence, I will not discount Mr. Mehra’s evidence on the basis of mere speculation.

[43] The Chief Building Officer, Mr. Rick Conard, was not available for examination. Despite the varying chronologies of events put forth by the parties, I find that counsel for the Respondent inadvertently mis-diarized the date for Mr. Conard’s examination and due to the inability of counsel to agree on a new date, Mr. Conard was not examined prior to the commencement of this motion.

[44] It was open to either party to seek leave of the court to order Mr. Conard’s attendance to give evidence at the motion. Neither party choose to do so.

ISSUES

[45] The main issues for this motion are as follows:

(a) Does this court have jurisdiction to reopen the Appellant’s appeal?

(b) Should the fresh evidence be considered by the court?

(c) Is exhibit H as proffered by the Appellant an authentic document?

[46] The parties agree that if exhibit H is authentic it will resolve the matter in the Appellant’s favour. The parties agreed that the issue of the authenticity of by-law 270-2004 should be resolved first. The Respondents state that this agreement is without prejudice to the position that if exhibit H is found not to be authentic, the Respondents can proceed with their argument that this court does not have the jurisdiction to reopen the Appellant’s appeal.

[47] In my view, on the specific facts of this case, where it is plain and obvious that had the fresh evidence been introduced to the court when the original decision was made, it would have conclusively changed the outcome of the case, it will be a miscarriage of justice for a court not to assume jurisdiction of the matter and address the specific issue raised by the new facts.

[48] On the facts of this case, the order in which I address the issues will not have an impact on the outcome. Therefore, I will address the issue of jurisdiction first.

(a) Does this court have jurisdiction to reopen the Appellant’s appeal?

[49] My decisions dated August 13, 2013, and September 6, 2013, were issued, entered and appealed to the Divisional Court. The Divisional Court dismissed the appeal. The question is whether under those circumstances this court has jurisdiction to hear a fresh evidence application under Rule 59.06 of the Rules of Civil Procedure.

[50] I have concluded that it will constitute a miscarriage of justice for this court not to assume jurisdiction to consider the authenticity and effects of the disputed exhibit H. This is because all the parties agree that if exhibit H is authentic, it will conclusively resolve the original dispute in favour of the Appellant.

LAW

[51] Prior to issuance and entry of a judgment, a judge has the discretion to reopen a case. In circumstances of fraud or where facts have subsequently arisen or been discovered, Rule 59.06(2)(a) of the Rules of Civil Procedure permits a party to bring a motion to vary or set aside a final order.

[52] Rule 59.06 states:

(1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

Setting Aside or Varying

(2) A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,

may make a motion in the proceeding for the relief claimed.

[53] A court will generally exercise its discretion to reopen a case when the party seeking to reopen the case satisfies two preconditions:

(i) the party must show that the evidence he or she seeks to adduce is such that, if it had been presented at trial, it would probably have changed the result; and

(ii) they must show that the evidence could not have been obtained by reasonable diligence before trial: 67112 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, at paras. 60-62, 65.

[54] A court may depart from the two step analysis and reopen a case in circumstances where failure to do so will cause a miscarriage of justice: Castlerigg Investments Inc. v. Lam (1991), 1991 CanLII 7355 (ON SC), 2 O.R. (3d) 216 (Gen. Div.), at paras. 9, 17, 22.

[55] MacDonald J. A. succinctly summarized the applicable principles in Clayton v. British American Securities Ltd., 1934 CanLII 229 (BC CA), [1935] 1 D.L.R. 432 (B.C.C.A.), at pp. 440-1:

(i) the trial judge should have unfettered discretion in this matter so as to ensure that a miscarriage of justice does not occur;

(ii) before entry of a judgment, the trial judge is in a better position to exercise that discretion than is an appellate court. The trial judge knows the factors in the case that influenced his decision and can move readily determine the weight that should be given to the new evidence offered;

(iii) the authorities indicate that a trial judge can always reconsider his decision until the judgment is drawn up and entered;

(iv) the trial judge is the one in the position to judge the bearing of the new or further evidence upon the case in light of the evidence already heard; and

(v) once a litigant has obtained judgment, he is entitled not to be deprived of it without very solid grounds.

[56] The doctrine of res judicata prohibits the re-litigation of matters already decided. Parties are required to put forward the entirety of their case in a single action: Toronto General Trusts Corporation v. Roman, 1962 CanLII 30 (ON CA), [1963] 1 O.R. 312 (C.A.), aff'd., [1963] S.C.R. vi; Aristocrat v. Aristocrat (2004), 2004 CanLII 32256 (ON CA), 73 O.R. (3d) 275 (C.A.).

[57] The general rule is that final judgments mark the end of the litigation. “Litigation by installments” is not permitted. In fact the integrity of the administration of justice shall be undermined if litigants cannot rely on the finality of judgments. “Litigation by installments” threatens the very essence of integrity and confidence in the administration of justice.

[58] The principle of finality will yield in circumstances where failure to do so will undermine the integrity of the administration of justice. Once a judgment has been entered it cannot be set aside on the basis of new evidence unless it is established that, with reasonable due diligence, the new evidence could not have been discovered: See Tsaoussis (Litigation guardian of) v. Baetz (1998), 1998 CanLII 5454 (ON CA), 41 O.R. (3d) 257, at para. 47 (C.A.), leave to appeal refused [1998] S.C.C.A. No. 518.

[59] A court may also set aside a judgment after it has been entered where it is established that there was fraud or perjury (i.e. that the court had been deliberately misled): 1307347 Ontario Inc. v. 1243058 Ontario Inc., 4 C.P.C. (5th) 153, at paras. 6, 9 (Ont. S.C.).

[60] A motion to reopen a case may be brought even though there is an appeal of the same judgment or after an appellate court has rendered a decision: A.H. Al-Sagar & Brothers Engineering Project Co. v. Al-Jabouri (1989), 46 C.P.C. (2d) 69 (Ont. H.C.).

[61] The proper forum to bring a motion under Rule 59.06(2)(a) to set aside or vary a judgment, during an appeal or after a decision on appeal has been rendered, is the Superior Court of Justice and not the Court of Appeal: Warren v. Gilbert, 2010 ONCA 295, at paras. 11-12; Aristocrat v. Aristocrat (2004), 2004 CanLII 32256 (ON CA), 73 O.R. (3d) 275 (C.A.).

[62] This will involve the consideration of new evidence by the court. The parameters of such reconsideration are articulated in Tsaoussis at para. 47 as follows:

These and numerous other authorities … recognize that the finality principle must not yield unless the moving party can show that the new evidence could not have been put forward by the exercise of reasonable diligence at the proceedings which led to the judgment the moving party seeks to set aside. If that hurdle is cleared, the court will go on to evaluate other factors such as the cogency of the new evidence, any delay in moving to set aside the previous judgment, any difficulty in re-litigating the issues and any prejudice to other parties or persons who may have acted in reliance on the judgment. The onus will be on the moving party to show that all of the circumstances are such as to justify making an exception to the fundamental rule that final judgments are exactly that, final.

[63] Applying the authorities, I conclude that this court has jurisdiction to consider the Appellant’s motion to set aside the court’s decision under Rule 59.06(2)(a).

(b) Should the fresh evidence be considered by the court?

[64] I find that the Appellant did not act with reasonable diligence in bringing exhibit H before this court. It is not in dispute that if exhibit H is an authentic document, it will conclusively resolve this dispute. Therefore, I conclude that it will be a miscarriage of justice if this court did not admit exhibit H as fresh evidence for the court’s consideration.

[65] The Appellant states that he received exhibit H from the previous owner of the property, Sumit Mehra, when he purchased the property from Sumit and Romika Mehra on May 31, 2010.

[66] The Appellant submits that exhibit H is a schedule to by-law 270-2004. He explains that exhibit H confirms that the zoning for the property was changed in 2004 to R3A(2).

[67] Based on the Appellant’s own evidence, the Appellant has been in possession of exhibit H at least since May 31, 2010. When the Appellant commenced this Appeal in 2013, he was self-represented and he did not bring exhibit H to the attention of this court at that time.

[68] Allowing for the fact that the Appellant was self-represented in 2013, the Appellant had counsel when the decision of this court was appealed and argued before the Divisional Court in March 2015. The Appellant did not bring exhibit H to the attention of the Divisional Court in March 2015.

[69] The dispute in this case centers around the proper zoning for the Appellant’s property and, therefore, exhibit H was a crucial document. The Appellant did not exercise reasonable due diligence in bringing exhibit H before the court.

[70] Given the fact that the dispute arose from the issuance of the building permit, the issuance of a non-legal conforming use designation, the revocation of the building permit, the legal nonconforming use designation and the fact that an authentic exhibit H will effectively resolve this dispute, it will constitute a miscarriage of justice if exhibit H is not considered by this court.

(c) Is exhibit H as proffered by the Appellant an authentic document?

[71] I have concluded that there is insufficient evidence upon which I can conclude that exhibit H is an authentic document. I am satisfied that exhibit H is not an authentic document. The circumstances surrounding its appearance raise serious unanswered questions. Exhibit H is not part of by-law 270-2004 and therefore does not apply to the property.

[72] The crux of the Appellant’s argument on the authenticity of exhibit H is that officials with the City of Brampton, the Respondents, have conspired to hide the fact that exhibit H is a schedule to by-law 270-2004. This is because the Respondents wanted to hide the fact that the proper zone for his property is R3A(2)-237. The Appellant argues that this was done by the Respondents in response to complaints from his neighbors. Therefore, the Appellant contends that the construction of the property is taking place in accordance with applicable by-laws and he should be permitted to continue construction.

[73] The Appellant states that the Respondents issued a letter informing his neighbors that he was in full compliance with applicable by-laws. However, after receiving complaints from city counselors and neighbors, the Respondents changed course and claimed that applicable zone was actually R1B(3)-153 and revoked the building permits issued for construction on the property.

[74] The Appellant states he made a freedom that of information request in December 2013, seeking information about the investigations that had been conducted into the circumstances surrounding the issuance and revocation of the building permit for construction on the property. He alleges that the Respondents’ response to this request was unresponsive.

[75] The Appellant said the Respondents prevented him from accessing GIS information and other information in relation to his property. He indicated that the City Commissioner of Planning delayed a report that had to be submitted on how the building permit was issued and then revoked for his property. The report was delayed 18 times. The Appellant submits that the Respondents have failed to deliver a copy of the internal investigation report to him as ordered by this court. The Appellant indicates his belief that the contents of the internal report are false.

[76] The Appellant stated that on February 25, 2013, the City’s Acting Commissioner, Planning, Design and Development made a verbal report to the City Planning, Design and Development Committee (the “Committee”) that staff surveys confirmed that the construction of the site on the property did not comply with the provisions of the zoning by-law. The Appellant states that the Committee expected to see future reports detailing the chronology of events surrounding the issuance and revocation of building permits on his property but to date, that report has not been delivered to the Committee.

[77] In a sworn affidavit, Mr. Irwin, law clerk with the City of Brampton, states: “[I]n 1975, pursuant to a City of Brampton by-law to 249-75, the Appellant’s property was zoned R5D, which in 1988, when the City updated and consolidated its zoning by-laws, became R1B(3)-153 zone”. The Appellant submits that this is false because city of Brampton by-law 94-76 shows the property zoned as 1 RB5 and city of Brampton by-law 151-88 shows the property zoned as R1B(3)-153.

[78] The Appellant submits that the Respondent relies on schedule “A” to by-law 270-2086 to conclude that the correct zoning for the property is R1B(3)-153. The Appellant states that this is false because there is no by-law number 270-2086.

[79] The Appellant explains that the Respondents fail to disclose that the City of Brampton further consolidated its by-laws in 2004, and enacted a comprehensive zoning by-law 270-2004. The Appellant continues that by-law 270-2004 is the actual governing by-law for the City of Brampton and that exhibit H is the correct schedule “A” annexed to that by-law. This shows that the zoning for the property was changed in 2004 to R3A(2).

[80] The Appellant states that Respondents did not send by-law 270-2004 to the Peel Art Gallery Museum and Archives until March 4, 2015. Therefore, by-law 270-2004 had been in the possession of the Respondents until that date.

[81] The Appellant indicated that he received erroneous information from the Respondents that there was no CD version of by-law 270-2004 available to the public when it was passed on September 13, 2004. He notes that such a CD was in fact in existence. He also notes that the Respondents’ claim that by-law 346-2005 had not been amended since 2004 is wrong. By-law 346-2005 shows that the by-law was in fact amended since 2004.

[82] A careful analysis of the catalogue of issues raised by the Appellant about the Respondents’ conduct reveals that, at the crux of all the analysis, there are two essential questions: (1) Is by-law 270-2086 or by-law 270-2004 the governing by-law? (2) Is exhibit H an authentic document? These are the documents that the parties say support their respective positions on what the correct zoning for the property is.

[83] Elizabeth Corazzola is an employee of the Respondent and holds the position of Manager, Zoning Services. Ms. Corazzola states that Appellant’s property is currently zoned R1B(3)-153 and has been so since 2004, when the City of Brampton zoning by-law 270-2004 was passed by council.

[84] Ms. Corazzola states that she has checked multiple sources, including historical zoning by-laws going back to 1975, as well as the internal staff paper copy of the zoning by-law, the electronic copy of the zoning by-law, the online electronic version of the zoning by-law, and a CD copy of the zoning by-law produced in 2005. According to Ms. Corazzola, all of these sources confirm that the schedule “A”, sheet 43B, to the zoning by-law designates the Appellant’s property as being zoned R1B(3)-153.

[85] Ms. Corazzola explained that the original schedule “A”, sheet 43B to the zoning by-law contains a typographical error in the lower left corner, where it indicates “270-2086”. This should read “270-2004”, as the last four numbers are meant to refer to the year of the by-law. Ms. Corazzola explained that 2086 is 71 years into the future, and that this typographical error does not change the fact that this document forms part of the zoning by-law, and has the effect of zoning the property as R1B(3)-153.

[86] Ms. Corazzola states that she has never seen a copy of exhibit H. Ms. Corazzola indicated that if exhibit H was authentic, it should be part of an amending by-law. As Manager of Zoning Services she is unaware off and has no record of the property ever been rezoned since 2004.

[87] Ms. Corazzola explained that the placement of a zone boundary to the center of two adjacent tracts of land, both purported to be zoned R3A(2)-237 on exhibit H, is unusual. Ms. Corazzola states that according to “section 4.2 Interpretation of zone boundaries, Clause (a) where zone boundaries indicated as following the street or lane, the boundary shall be the centerline of such street or lane.”

[88] Ms. Corazzola observed that exhibit H delineates a zone boundary through the centerline of Center Street North, indicating a change in zones at that location. She observed that there will be no need for the delineated zone boundary through the centerline of Center Street North if the lands on both sides of the street were subject to the same zone designation.

[89] Ms. Corazzola observed that exhibit H has no stamp as a certified true copy by the office of the city clerk.

[90] Ms. Corazzola explains that if exhibit H was a document created by the Respondents and is the correct Schedule “A”, sheet 43B, then she would expect to find it in places that she searched, or at least one of them. Ms. Corazzola stated that all of her searches have resulted in a finding that exhibit H is not part of any city of Brampton by-law, and not located anywhere that she looked. Ms. Corazzola stated that if the document was authentic than it would have been found in at least one of the places she checked.

[91] I find that by-law 270-2004 is the applicable by-law. The issue is whether exhibit H is an authentic schedule to this by-law. The Respondents have stated conclusively that they have no record of exhibit H and it is not an authentic document. Where the Appellant obtained exhibit H from may help shed some light on its authenticity.

[92] The Appellant states that he obtained exhibit H from Sumit Mehra, the previous owner of the property. Mr. Mehra denies ever seeing the document and has no recollection of providing the document to the Appellant.

[93] The Appellant states that he believes that Dennis Allan, who had sold the property to Mr. Mehra, may have received a copy of Exhibit H from the Respondents and provided it to Mr. Mehra. No evidence was presented from Mr. Allan.

[94] The Appellant refers to the City of Brampton Manager of Development Engineering Approvals, Ozzie Terminesi, and Frank Mazzotta, Development Engineer - Approvals. He said that he showed both of these men exhibit H and they advised him that they will send a message to the Chief Building Officer, Mr. Rick Conard, on approvals for his property. Mr. Terminesi and Mr. Mazzotta denied ever discussing any matters relating to approval of building permits with the Appellant and say they have never seen exhibit H.

[95] The Appellant has provided a list of reasons why this court should conclude that the Respondents have conspired to hide exhibit H from him, thus thwarting his efforts to complete construction on the property. However, the person the Appellant says he received exhibit H from does not recall seeing exhibit H or providing it to the Appellant.

[96] The City of Brampton employees, who are alleged to have been shown exhibit H by the Appellant, deny ever seeing exhibit H. Ms. Carrazolla states that exhibit H is not and has never been a document produced by the City of Brampton.

[97] In the result, I conclude that exhibit H is not an authentic document. Therefore, my August 15, 2013, decision that the applicable zoning for the property is R1B(3)-153 is unchanged and the remediation timetable previously set by this court remains unchanged.

[98] If the parties are unable to agree on costs, they shall each submit a cost outline, no more than two pages in length, within 15 days.

Barnes, J.

Released: October 02, 2015

CORRECTION NOTICE

Corrected decision: the text of the original judgment was corrected on October 13, 2015, and the description of the correction is appended:

Paras 43-50 have been inserted on page 12 after para 36.

Para 75, second sentence, the word “been” has been changed to “be”.

Para 76, second sentence the word “was” was deleted.

Para 83, second sentence, “Mr. Corazzola” has been changed to “Ms. Corazzola”.

CITATION: Elbasiouni v. City of Brampton, 2015 ONSC 6149

COURT FILE NO.: CV-13-1084-00

DATE: 2015-10-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

AHMED ELBASIOUNI

Appellant

• and –

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

Respondent

AMENDED REASONS FOR JUDGMENT

Barnes, J.

Released: October 2, 2015