SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO. 84270/13

DATE: 20151112

RE: The Corporation of the Town of Ajax, applicant

- and -

Allen LaPierre and Doreen Parks, respondents

BEFORE: Bale J.

COUNSEL: Cameron Murkar, counsel for the applicant

Mathew Hilbing, counsel for the respondents

HEARD: June 16, 2015

ENDORSEMENT

[1] The respondents have appealed a decision of the property standards committee of the Town of Ajax. On this application (which ought to have been brought as a motion in the appeal proceeding), the applicant requests an order determining whether an appeal to this court under s. 15.3(4) of the Building Code Act, 1992 is an appeal on the record, or a hearing de novo. The question arises as a result of two conflicting decisions of this court: Swanson v. Whitchurch-Stouffville (Town), [2009] O.J. No. 5158, 68 M.P.L.R. (4th) 203, 89 C.L.R. (3d) 279, 2009 CarswellOnt 7572; and Anderson v. Hamilton (City), 2009 72107 (ON SC), [2009] O.J. No. 5556, 68 M.P.L.R. (4th) 219, 315 D.L.R. (4th) 486, 2009 CarswellOnt 8135.

[2] In Swanson, Lauwers J. held that an appeal under s. 15.3(4) of the Act is a hearing de novo on which the parties may introduce evidence not before the committee, including evidence relating to events occurring subsequent to the committee hearing, and oral evidence. In Anderson, while acknowledging that the appeal before him did not require him to do so, Crane J. held that an appeal under s. 15.3(4) is an appeal on the record before the property standards committee.

[3] With respect, I prefer the result reached by Lauwers J. in Swanson. It is grounded in precedent; and, in my view, accords with the intention of the legislature as expressed in s. 15.3 of the Act.

[4] In Anderson, without attempting to distinguish Swanson, or the cases relied upon by Lauwers J., the court interprets s. 15.3 as providing for “a summary, inexpensive review process of generally minor decisions of a municipal officer as to minimally accepted community standards of property maintenance.” The types of minor decisions referred to in the court’s decision include “the length of the grass, the number of cracks in the concrete sidewalk, the slant of the fence, or indeed the more structural items detailed in the by-law that would fall to a municipal building inspector acting as the property standards officer.” Crane J. reasons that property owners “who allow their picket fence to fall down are not likely wanting to retain counsel and call expert witnesses to a formal hearing before the Superior Court.”

[5] However, not all property standards disputes relate to minor decisions of the type referred to in Anderson. In the present case, both sides to the dispute have retained counsel, and the respondents have obtained an engineering report, upon the direction of a by-law enforcement officer, pursuant to s. 15.8 of the Act.

[6] Under s. 15.3(6) of the Act, this court on appeal “has the same powers and functions as the committee.” One of the functions of the committee is to hold a hearing, receive evidence, and decide the issues, based upon the evidence given. It is therefore difficult to understand why the respondent should not be entitled to request the court to do the same.

[7] The applicant argues that many of the issues raised in the notice of appeal are not valid issues under s. 15.3 of the Act, and that it would be a waste of resources, if he were to be required to prepare responding materials relating to issues ultimately found to be beyond the proper scope of the appeal. However, that issue is not before me on this application. If that is the applicant’s concern, the appropriate procedure would be a motion to quash the appeal under s. 134(3) of the Courts of Justice Act, upon the ground that the court is without jurisdiction to hear some or all of the issues raised in the notice of appeal. On that motion, the appeal could either be quashed in its entirety, or an order made for the hearing of particular issues.

[8] The applicant also argues that much of the evidence referred to in the appellant’s certificate respecting evidence is irrelevant to an appeal under s. 15.3 of the Act. However, as in any other case, it will be up to the hearing judge to determine the admissibility of the evidence tendered by the parties.

[9] For the reasons given, the appeal will proceed as a hearing de novo. If the parties are unable to agree on costs, I will consider brief written argument provided that it is delivered to Judges’ Reception, at the Durham Region Courthouse, no later than December 7, 2015.

Released: November 12, 2015