SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO. 89475/14

DATE: 20151112

RE: Allen LaPierre and Doreen Parks, plaintiffs

- and -

The Corporation of the Town of Ajax and others, defendants

BEFORE: Bale J.

COUNSEL:
Mathew Hilbing, for the plaintiffs

Cameron Murkar and Natalie Groen, for The Corporation of the Town of Ajax

Alexander Hora, for Madelaine Hazell

S. McGarry-Parsons, for Delcan Corporation

HEARD: June 16, 2015

ENDORSEMENT

[1] The plaintiffs are the subject of an order under s. 15.2 of the Building Code Act, 1992 requiring them to reconstruct two retaining walls in their back yard, to remove a third retaining wall, and to stabilize the slope between the reconstructed walls. They have appealed the order to this court.

[2] In this action, the plaintiffs claim that the municipality, some neighbours, a supplier of stone, and an engineering firm should be held responsible for completing the work required by the property standards order.

[3] On this motion, the plaintiffs ask that the appeal and the action be consolidated, or heard one after the other. Their position is that the appeal and the action deal with the same facts, and require the court to determine responsibility for the location and condition of the retaining walls, and responsibility for carrying out the required work. I disagree.

[4] The issues on the appeal are circumscribed by s. 15.2(1) and (2) of the Act: whether the property conforms with the standards prescribed in the property standards by-law; and, if not, whether the repairs ordered to be made are required; and within what time the order should be complied with. There is no issue, on the appeal, of responsibility for having the work done. Pursuant to s. 15.3(7) of the Act, the owner or occupant of the property is required to carry out the repair or demolition within the time, and in the manner, specified in the order.

[5] The issues in this action are much broader, will take much longer to become trial-ready, and much longer to try. An order that the appeal and action be consolidated, or that the order under appeal be stayed, would defeat the purpose of the property standards provisions of the Act.

[6] The real reason for the motion is that the plaintiffs are unable, at present, to afford the required remediation. They therefore want their claims against the defendants in this action to be heard before their appeal, hoping that someone else will be required to reimburse them for those costs. Unfortunately, this is not a matter for my consideration on this motion.

[7] For the reasons given, the motion is dismissed. 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.

“Bale J.”

Released: November 12, 2015