SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-15-534388

DATE: 20151013

RE: City of Toronto and Ann Borooah, Chief Building Official for City of Toronto, Applicants

AND:

Luke James Williamson and Steve Williamson, Respondents

BEFORE: Carole J. Brown, J.

COUNSEL: Tim Carre, for the Applicants

HEARD: October 6, 2015

ENDORSEMENT

[1] The Applicants bring this motion for an Order pursuant to section 38 of the Building Code Act ("BCA" or "the Act") to compel compliance with the BCA and Orders issued by the Applicants pursuant to the Act, on terms.

[2] At the onset, a non-lawyer agent for the Respondents, Jeff Reid, their uncle, requested an adjournment on their behalf. After hearing submissions from the parties, I rendered my decision as follows:

Mr. Reid, uncle of the Respondents sought an adjournment as S. Williamson was out of the Country, although L. Williamson was in Toronto, but not in attendance. The reason for his non-attendance was not provided. Mr. Reid advised that the Respondents intended to retain counsel although no counsel was retained as yet. The Application was served September 14. The agent sought an adjournment to Nov.

The issues involve public safety and the safety of individuals living in a dwelling not in compliance with the BCA, the FPPA, the Building Code and the Fire Code.

Given the issues, I proceeded with the hearing and have issued the interim Order appended.

The application will be brought back November 12, 2015 for 90 minutes, at which time the Applicants will seek a permanent order.

[3] I note that the endorsement, as written, contained an error, which was corrected above. The original handwritten endorsement indicated that: “The reason for his non-attendance was provided”. In fact, the reason for his non-attendance was not provided, as corrected above.

[4] The property title is registered in the name of the respondent, Luke Williamson. The permit application was filed in the name of Steve Williamson, who is not a registered owner.

[5] It is apparent from the evidence contained in the Applicants' Application Record, and as summarized in their Factum, that the Respondents have continually failed to comply with Orders issued by the Applicants and by the Fire Inspector pursuant to the Fire Prevention and Protection Act ("FPPA").

[6] The building was erected without obtaining a building permit and in contravention of the zoning bylaws regarding length and height of the building. An Order to Comply and a Stop Work Order were issued and ignored. Pursuant to an Order of this Court, dated June 4, 2012, that the building be demolished unless a permit was obtained, the Respondents finally obtained a building permit for a single family dwelling after application for minor variances was granted on appeal by the OMB. The Declaration of Use signed and filed by the Respondent, Steve Williamson, certified that the building was intended and would only be used for a "residential family dwelling".

[7] Since the permit was obtained, the Respondents refused to permit inspections of the building. Orders to Uncover for inspection were issued and ignored or were limited by the Respondents to inspection of the framing from the basement which revealed non-compliance with the permit plans.

[8] A search warrant was thereafter obtained to enter the premises pursuant to section 21 of the BCA, which revealed that many private living units were constructed throughout the building with counter space, mini fridge and bathroom in each suite, none of which was reflected in the permit plans or in the building permit which was for a residential family dwelling.

[9] A further Order to Comply was issued, requiring the Respondents to remove the unauthorized construction or apply for a revision to the permit plans by July 21, 2014, which was ignored.

[10] On April 22, 2015, five Orders to Uncover were issued regarding inspection of certain aspects of the construction for which mandatory inspections are required by the Building Code. In posting the Orders at the premises, the Building Inspector found the front door open and entered. He found evidence that the building was not being used for its designated purpose, namely a single family dwelling. He observed what appeared to be multi-residential use, with suites and the reception desk, seating area and communal dining area for at least 14 people. The suites all had suite numbers on the doors, which were opened by key cards.

[11] Based on these observations, the premises were referred also to the Toronto Fire Service as a potential hazard to occupants. Following several attendances which revealed that the building was being used for multi-residential use, and that fire safety systems did not meet Ontario Fire Code requirements, a Notice of Immediate Threat to Life was issued pursuant to the FPPA, as well as Inspection Orders. An Order to Close was subsequently issued, requiring all occupants to vacate the premises, which were kept in the control of the Toronto Fire Services until the deficiencies were remedied. During this period, the Fire Inspector determined that the premises were associated with the "William School", a private school, and that rooms appeared to be rented as a hotel as well.

[12] The Order to Close was lifted following correction of the most serious fire deficiencies.

[13] A second Inspection Order under the FPPA remains outstanding regarding fire safety systems. As well, no inspections have been passed under the BCA, including those that are mandatory. The building remains in contravention of the BCA, the FPPA, the Building Code and the Fire Code. Nevertheless, the Respondents are again permitting it to be occupied.

[14] Pursuant to the BCA, section 38(2), the Applicants seek an Order of this Court requiring the Respondents to permit all inspections required under the Building Code, and all outstanding Orders made in respect of the premises to be complied with, and an Order restraining the Respondents from using the premises for any use other than that permitted pursuant to the building permit. The Applicants have referred me to the BCA, ss. 8(13), 10(1), 10.2(2), 12(1), (2), 13(6), 18(1) and 38(1), (2).

[15] The legislation in question is enacted for the public good, namely to ensure safe construction of buildings.

[16] Where construction has occurred in violation of the BCA, the Respondent has the onus to establish why an Order to enforce the law should not be granted. In this case, as neither Respondent retained counsel, filed material, or attended Court, no evidence has been filed by the Respondents.

[17] Based on the evidence before this Court, filed by the Applicants, the dwelling is not in compliance with the approved use and is not in compliance with the permit plans. The Respondents initially constructed the building without a building permit, and since obtaining one pursuant to an Order of this Court, have continued to ignore Orders to permit BCA inspections and to comply with Fire Code provisions. The Respondents have permitted the building to be occupied, not as a single-family dwelling pursuant to the approved use, which was also certified by the Respondents, but for multi-residential purposes.

[18] I am satisfied that the Orders sought are fit and necessary in all of the circumstances to ensure compliance with the BCA, the FPPA, the Building Code and the Fire Code, and to ensure the public safety.

[19] This Court orders that all occupation of the premises is prohibited until such time as all inspections have been completed and all outstanding Orders issued to the Respondents have been complied with. The Order in its entirety is as signed on October 6, 2015. This Order is in force until such time as the Application is heard again and a further order of this Court is made.

Carole J. Brown, J.

Date: October 13, 2015