Carson v. Kearney, 2016 ONSC 1940

COURT FILE NO.: CV 12-74

DATE: 20160322

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Robin Carson and Chris Forde

Plaintiffs

– and –

The Corporation of the Town of Kearney

Defendant

David A. Morin, for the Plaintiff

M. John Ewart, for the Defendant

HEARD: February 4;5;8-10;12, 2016

E.J. Koke

REasons for Decision

INTRODUCTION

[1] The Town of Kearney has a population of about 850 permanent residents and bills itself as “Ontario’s Biggest Little Town”. The Town is a gateway to the Algonquin Park wilderness area with three access points - one at Tim Lake, one at Magnetawan Lake and one at Rain Lake. Both canoe and hiking routes can be accessed from these park entry points.

[2] In June, 2010 the plaintiffs purchased an older residence in Kearney which they intended to use to carry on their tourist outfitting business. They were aware at the time that the property required a rezoning approval from the Town, as well as some structural changes.

[3] Immediately after the June 15, 2010 purchase, the plaintiffs contacted the Town to obtain the necessary permits and re-zoning approvals. Initially, the process proceeded smoothly. However, in May, 2011, when the Town’s long serving Chief Building Official (“CBO”) was replaced with a new CBO the process ground to a halt. After two and a half years of attempting to satisfy the Town’s building code and zoning requirements the plaintiffs abandoned their dream and moved their business to a less desirable location in a neighbouring community.

[4] The plaintiffs allege that Town officials acted in an arbitrary, inconsistent and unreasonable manner in responding to their applications for approvals and licences and as a result they have suffered economic and general damages. They base their claim on negligence and negligent misrepresentation. The Town denies these allegations, and argues that the actions of its officials were reasonable and at all times conformed to the dictates of the Building Code and other applicable legislation.

BACKGROUND

[5] In 2008 the plaintiffs, Robin Carson and Chris Forde, opened an outfitting store in the Town of Kearney. They named it Trailside Adventure Co. Trailside rented canoes and sold outdoor camping, hiking, canoeing equipment and supplies to tourists visiting Algonquin Park. Initially, the store was operated from rented premises at 80 Main Street in Kearney. However, when the Town implemented a downtown beautification project and installed curbs on Main Street the plaintiffs found that their parking resources were greatly diminished and they began to look for alternative locations in the Town.

[6] They found what they believed was a suitable site at 15 Main Street. It was an older home which had better parking and enough room to permit them to provide some overnight accommodations for clients who wished to catch some rest before embarking on or after disembarking from a trip in the park. The residence was located on a large lot and there was plenty of room for the storage of canoes. In 2001 the residence had been renovated and approved for use as a group home with accommodation for as many as 10 residents and it appeared to be structurally sound. Ms. Carson and Mr. Forde were familiar with the building because in the past they had both been employed as counsellors at the group home.

[7] The residence also had an attached garage which had been converted for use as a classroom for the group home. Ms. Carson and Mr. Forde envisaged that this classroom could be converted into their outfitting store with very few modifications.

[8] Another feature which attracted the plaintiffs to this location was the fact that the residence was located across the road from the Kearney municipal building. Permits to gain entry to the three access points in the south west part of Algonquin Park were sold in the municipal building and this attracted a considerable amount of tourist traffic. Ms. Carson and Mr. Forde viewed their store as serving as the last stop for tourist supplies prior to entering the park.

[9] The plaintiffs placed an offer on the residence which was accepted. The sale closed on June 15, 2010. The purchase price was $98,000. Title was taken in Ms. Carson’s name. They hoped to be open for business in their new building at the commencement of the 2011 tourist season.

REVIEW OF THE EVIDENCE

[10] There is no one single incident which gives rise to the claims in this action. The alleged breaches of duty on the part of the defendant municipality are numerous and occurred over a five year period. Some of the breaches are also based on the cumulative effect of certain actions or decisions by the municipality. It is therefore necessary to conduct a comprehensive review of the evidence.

Evidence of Robin Carson

[11] In her evidence Ms. Carson provided context to the plaintiffs’ claim by chronicling the events giving rise to the allegations of negligence against the defendant municipality. It is appropriate to begin with a review of her evidence.

June 15, 2010 – June 3, 2011

[12] Ms. Carson testified that she started the process of rezoning the property from residential to commercial by arranging a meeting with Kim Moyer, a planning technician who worked on a part time basis in the Town’s planning department. Ms. Moyer advised her that she would have to commence the rezoning process by completing and submitting a Pre-Consultation Form for review by the planning department. Thereafter, she could proceed with the formal application for a re-zoning of the property after the planning department provided its response in the form of a Pre-Consultation Report.

[13] Ms. Carson submitted the Pre-Consultation Form on July 14, 2010. The Town responded with its 2 page Pre-Consultation Report more than three months later on October 22, 2010.

[14] Following receipt of the Pre-Consultation Report Ms. Carson arranged a joint meeting at the site with officials of the local fire department and with the Chief Building Official. This meeting took place on November 12, 2010. In attendance were the Town’s Fire Inspector, Kim Harrison, the Town’s Fire Chief, Rick Philip and the Town’s Chief Building Inspector, Paul Schaefer.

[15] Ms. Carson testified that she and Mr. Forde reviewed and discussed their plans for the building with these town officials at this meeting. Specifically they informed them that they planned to convert the garage/classroom into a store for their outfitting business and convert the upstairs of the residence into a one bedroom apartment which would provide some year round rental income and a separate two bedroom suite which would provide short term overnight accommodations to guests during the tourist season. The downstairs portion of the house would serve as a common area for their overnight guests.

[16] Ms. Carson testified that the Town officials were supportive of their plans and provided them with helpful advice and direction. Ms. Harrison and Mr. Philip informed them that there were three requirements which they would have to meet if they wished to use the building as planned. Firstly, the wall and floor assemblies required a 30 minute fire-resistance rating and therefore much of the drywall in the residence portion of the building would have to be replaced. Secondly, they would have to provide a second means of fire escape from the upstairs of the house; a window could serve this purpose provided it was of a specified size and the sill height was no higher than 900 mm. above the floor. Thirdly, exit signs would have to be located along the means of egress so that the direction of exit travel would be apparent to the occupants.

[17] Following this meeting the Fire Department prepared a Fire Inspection Report which confirmed the above three requirements. The report referred to the building as a “Two unit residence/store”.

[18] Ms. Carson spoke to Mr. Schaefer in early January for assistance in completing her application for a building permit. Mr. Schaefer advised her that she would require a permit for the new windows, doors and headers for the doorways.

[19] On January 11, 2015 Ms. Carson submitted her Building Permit Application to the Town’s planning department. The application contained a box entitled “Proposed use of building” and in this box Ms. Carson described the proposed use as “residential/commercial”. In the box entitled “Current use of building” she described the current use as “residential”.

[20] On January 21, 2011 Mr. Schaefer issued a building permit. He described the work to be carried out by the applicant as “Renovation/Replacing Windows and Doors”.

[21] Ms. Carson testified that she and Mr. Forde were forced to work with a very tight budget. She explained that they were now carrying the expense of an additional mortgage which they had taken out to purchase the residence. Also, their income from the business was seasonal and they were raising an infant child. They decided that Mr. Forde, who had previous building construction experience, would take time off from his regular winter employment and undertake much of the construction work himself.

[22] Construction started in January, 2011. On April 6, 2011 Mr. Schaeffer inspected the construction and noted that the framing, the insulation and the vapour barrier was complete. He completed an inspection report in which he noted that the exposed framing, the insulation and the vapour barrier were all “O.K.” and he verbally informed Mr. Forde that he could proceed to close up and complete the work.

[23] On January 10, 2011Ms. Carson submitted what she described as a “rough copy of my zoning application” to Ms. Moyer for her review. In her application she requested a rezoning of the store portion of the building only, from residential to commercial, with the remainder of the building retaining its residential status.

[24] Ms. Carson attached a two page hand written document to the application in which she described the nature of the plaintiffs’ business, the proposed uses of the building and the changes she and Mr. Forde intended to make to the building.

[25] Ms. Moyer responded to Ms. Carson’s application by suggesting that she consider rezoning the entire property to CTS-X (Commercial Townsite Exception) rather than just the garage/classroom portion. She also commented that Ms. Carson should address parking issues related to the commercial use of the building.

[26] Ms. Carson completed her zoning by-law amendment application and filed it with the Town on April 14, 2011. She followed Ms. Moyer’s suggestion and applied to have the entire property zoned commercial. She also attached a copy of the handwritten summary which she had attached to the “rough copy”.

[27] On May 12, 2011 Ms. Carson received a written notice from the planning department confirming that the department had determined that her application was complete. She was informed that a public meeting had been scheduled to consider the application on June 3, 2011 at 7 pm.

[28] Following its completion the rezoning application was circulated to the various town departments for review and comment. Rick Philip, the Fire Chief responded by confirming that the Fire department had been involved with inspections on the premises to make sure it was up to code and had no objections. Mr. Dean Hall from the Town’s Public Works Department advised that Public Works would like to see curbing along the street and additional paved parking.

[29] In response to Mr. Hall’s concerns Ms. Carson arranged a meeting at the site with him. At the conclusion of the meeting Ms. Carson believed that the concerns expressed by Public Works had been resolved. On May 31, 2011 she delivered a letter addressed to Kearney Town Council confirming that there were no further concerns from Public Works regarding the parking and attaching a drawing showing the parking changes.

[30] A memorandum to council members dated June 3, 2011 was prepared by Ms. Moyer. Ms. Moyer provided a summary of the purpose and contents of the application and she noted that with the exception of some concerns which had been raised about parking …“staff has no other concerns with this rezoning”.

[31] By the end of May, 2011 the interior renovations were almost completed. The exterior of the house was covered with rigid foam insulation and the siding was on site, awaiting installation. Ms. Carson was confident that the application would be approved at the June 3, 2011 meeting.

[32] Effective May 31, 2011 Henry Hess replaced Paul Schaefer as Kearney’s CBO. On June, 2, 2011 Ms. Carson was provided with a handwritten memorandum dated June 1, 2011 from Mr. Hess in response to her application. In the memorandum Mr. Hess stated that if Ms. Carson wished to proceed with her rezoning plans he would require the following:

a) A building permit for the new siding which Mr. Forde was in the process of installing and for the interior and exterior renovations which he had almost completed;

b) a “change of use” building permit to reflect the fact that the use of the building was changing;

c) a review of the existing sewage system by the local conservation authority.

[33] Ms. Carson testified that she was shocked by the contents of Mr. Hess’s letter. She explained that when she met with Mr. Schaefer at the site the previous November and spoke to him the previous January she had not been advised to obtain a permit for the siding and a permit for the drywall replacement and she had not been informed that she required a specific change of use permit. She noted that the interior renovations, including the installation of the drywall were in the process of being completed when the premises were inspected by Mr. Schaefer on April 6, 2011and he did not request a permit for these renovations. She noted that the building was directly across the road from the Town Municipal offices and the exterior siding work had been performed in plain view of Town Officials and no one had requested that they obtain a building permit for the siding. She questioned why no one had raised any issues concerning the alleged need for these additional permits prior to June, 2011.

[34] Ms. Carson explained that she was informed by Mr. Hess that because she was required to proceed with the renovations by way of a change of use permit she was also now required to prepare a detailed site plan, notwithstanding the fact that the work was virtually complete, and she was required to hire a qualified designer/planner to provide drawings. She testified that she and Mr. Forde were shocked by the unexpected imposition of these new and additional requirements and they were not prepared for the additional costs and delays which they would incur as a result thereof.

[35] The June 3, 2011council meeting was adjourned because the number of councillors who were able to attend did not comprise a quorum. The meeting was rescheduled for July 15, 2011.

June 3, 2011 – November 18, 2011

[36] Ms. Carson arranged a meeting with Mr. Hess, Yvonne Aubichon, the Town Clerk/Administrator and Wayne Tomlinson, the Town Mayor in order to address her concerns. The meeting took place on June 25, 2011.

[37] Mr. Hess’s comments in response to Ms. Carson’s concerns are contained in a written memorandum to her dated July 8, 2011. His comments are summarized as follows:

a) Ms. Carson’s meeting with the fire officials on November 12, 2010 must have been to establish requirements for the existing building use only, not for the proposed commercial use because a change of use building permit had not yet been issued at the time of the meeting. Also, Mr. Schaefer’s presence must have been as a courtesy only and not as part of an official visit for the same reason; since no building permit had been issued on the date of the meeting he did not have the authority under the Building Code to meet at the site and undertake an inspection.

b) Mr. Schaefer’s advice that it was only necessary for her to apply for a windows and doors permit must also have been based on the existing residential use of the building and not on the proposed change in use because a change of use permit had not yet been issued. Mr. Schaefer would have been aware that any work performed as part of a change of use could not proceed until a permit had been issued for that purpose.

c) The Building Code requires a permit for the replacement of insulation, drywall and siding. Since this work was not specifically included in the permit issued by Mr. Schaefer it could not form part of the work covered by that permit. Ms. Carson was therefore required to apply for a separate permit for this work.

d) His memorandum of June 1, 2011 was delivered at an appropriate time in the approvals process. His comments and concerns in this memorandum were all related to requirements in the Ontario Building Code and as the owner/applicant/designer of the project Ms. Carson should have been aware of these requirements.

e) Section C.3.2.5.1.(2)(b)(i) of the Ontario Building Code required Ms. Carson to retain a qualified designer, since the proposed change of use contains “three suites of residential occupancy” and a “mercantile major occupancy”. The Code only exempts from this requirement “a house containing not more than two dwelling units”. Although he was prepared to provide Ms. Carson with assistance and information she could not expect that he or Mr. Schaefer could design the project for her.

f) The fees for the insulation, drywall and siding permit would not be waived for any future building permit applications.

[38] With respect to paragraph “e” above Ms. Carson questioned Mr. Hess as to why he referred to the proposed changes as comprising “three suites of residential occupancy”. In her view the residential use was comprised only of a one bedroom apartment and one two bedroom suite for overnight accommodations. Mr. Hess responded that in his view the two bedroom suite for overnight guests was properly included within the definition of a “hotel” in the Building Code and as such it comprised two suites of residential occupancy or two dwelling units.

[39] Ms. Carson prepared a written delegation for distribution to Council members in advance of the July 15, 2011 council meeting. In this delegation she described her and Mr. Ford’s concerns and frustrations in dealing with the Town’s re-zoning and building permit process. Their concerns, as set out in her delegation, are summarized as follows:

a) It took over three months for the Town to respond to her Pre-Consultation Form. In response to her concern that the process was so lengthy she was informed that one of the reasons for the delay was because she had not completed the form properly. However, at no time during this three month time period was she advised that her form was not completed properly and when she had questioned Ms. Moyer about the delay she was told that it was because she was extremely busy at the time.

b) At the November 12, 2010 meeting with Mr. Schaefer and the Fire department officials there was a full and complete discussion about their plans for the two dwelling units and the store. One unit was described as a one bedroom apartment and the other a two bedroom suite providing overnight accommodation. She was advised by Mr. Schaefer that she could do her own drawings. It was clear to everyone at the meeting that the advice given to her by Town officials was in relation to her intended commercial use of the building.

c) Contrary to Mr. Hess’s assertion that the fire inspection was carried out in relation to the original use of the building, the inspection report issued by the fire department clearly indicated that the inspection was for “two dwelling units and a store”.

d) Contrary to Mr. Hess’s assertion that the building permit was issued in relation only to the existing residential use of the building, the changes which she was instructed to make by town officials contemplated a change in use to commercial. The larger windows with lower sills were specified as required by the Fire Department because of the intended commercial use, as were the new headers for the larger doors and the fire rated drywall.

e) When she contacted Mr. Schaefer in January, 2011 and sought his advice on what information she should include in her application for a building permit she was advised to open a permit for windows and doors only, and not for the siding work. The siding work was carried out in plain view of Town of Kearney offices and was in progress when Mr. Schaefer conducted his inspection in April, 2011 and at no time did he question the fact that they did not have a siding permit.

f) After working on the project with Town officials for a year she had never heard anyone from the Town use the term “change of use” permit and she had never been told that she required such a permit. She questioned why the town’s requirements had increased so that she was now required to have a separate change of use permit, a siding permit, a qualified designer and a septic inspection. Also, since she was now informed by Mr. Hess that he considered the two bedroom overnight accommodation unit to fall within the definition of a “hotel” she was now also required to increase the number of parking spaces to the number required for a hotel use.

[40] Although Ms. Carson’s written delegation was admitted as an exhibit it was not clear from the evidence whether it was distributed to all councillors or whether it was discussed by council.

[41] On July 15, 2011 Ms. Carson’s application for rezoning was approved. The by-law provided that the zoning of the property was changed to Commercial Townsite Exception Three (CTS-3) and that the permitted uses included an Outfitters Store and Dwelling Unit. However, she and Mr. Forde were still required to meet the requirements imposed by Mr. Hess as a pre-condition to opening up for business.

[42] On July 19, 2011 Ms. Carson met with Mr. Hess. Mr. Hess continued to insist that the plaintiffs comply with the conditions set out in his memorandum of June 1, 2011. Ms. Carson asked him to contact Mr. Schaefer to confirm the information he had given her but Mr. Hess refused to do, referring to the fact that Mr. Schaefer no longer worked for the Town. Mr. Hess also continued to insist that she retain a fully qualified designer/planner and that she provide professionally prepared drawings for all of the renovations, including the siding. He also informed her that she was required to construct an accessible bathroom for patrons of the outfitting store.

[43] Following this meeting Ms. Carson wrote members of council an email pleading for their assistance and requesting that they provide her with relief from the requirements imposed by the new CBO. She received a response from Ms. Aubichon in which she was assured that staff was looking at ways to assist her application but that there were “processes which were outside of the control of staff”. She was also reminded that if she wished to proceed with the project she was expected to provide a complete building permit application for a change of use and any renovations that complied with the Ontario Building Code.

[44] In August, 2011 Ms. Carson retained Nancy LeBlanc as her designer/planning consultant. Ms. LeBlanc’s initial efforts were directed at attempting to convince council to reduce the number of parking spaces which Mr. Hess required following his decision to designate part of the residence as a hotel. In total, Mr. Hess required 15 parking spaces…one for the apartment, three for the retail store and 10 for the two rooms which comprised the hotel use.

[45] Ms. LeBlanc proposed that Ms. Carson apply for a second zoning amendment, this time to have the “hotel” portion of the house designated as a “Tourist Establishment” with a maximum of two accommodation units” and specifying that a maximum number of ten parking spaces were required.

[46] Notices were sent out to the various town departments. In his response Mr. Hess restated the requirements he set out in his June 1, 2011 memorandum, namely that a building permit was required for the siding, drywall and other non-structural interior renovations, that a change of use permit was required and that a review of the sewage system by the Conservation Authority was required. He also required that the plaintiffs provide planting strips on the west and south property lines and that all parking spaces were to be paved.

[47] Ms. LeBlanc and Ms. Carson worked on this second zoning amendment application during the fall of 2011 and the amendment was passed by council on November 18, 2011. Ms. Carson was successful in securing council’s agreement to waive the requirement that the parking spaces be paved.

November 18, 2011 – January 1, 2013

[48] Following the passage of the second zoning amendment by-law the plaintiffs hired Kip Coggins, P. Eng. to prepare engineering drawings. Mr. Coggins met with Mr. Hess on March 15, 2012 and Mr. Hess informed him that in order to secure the approval of the building department for their proposed changes the plaintiffs were required to provide the following:

a) a ventilation (HRV systems) for the store and the upstairs apartment;

b) a fire separation barrier between the basement floor and the floor above it or in the alternative to raise the basement floor and convert it into a crawl space;

c) the interconnection of all smoke and fire detectors in the building.

[49] With the assistance of Mr. Coggins Ms. Carson completed and filed a Change of Use Building Permit with the Town on March 21, 2012, together with engineered drawings prepared by Mr. Coggins and additional information from Ms. LeBlanc.

[50] On March 22, 2012 Mr. Hess informed the plaintiffs that in addition to the previous requirements he had set out he also required the following in relation to the change of use application:

a) Fire separation on the west wall of the store;

b) Increased fire separation between the 2 storey dwelling unit and the rest of the building;

c) One hour fire separation from the residence to the store;

d) Sewage system permit bed extension;

e) Widening of parking spaces at the front of the building by two feet;

f) An amendment to the site plan;

g) Sound separation between the mercantile portion of the building and the residential.

[51] Mr. Coggins wrote Mr. Hess on March 23, 2012 with respect to the sound separation. He suggested that the building as proposed met the general intent of the Ontario Building Code with respect to sound separation. He pointed out that the bedrooms did not adjoin the mercantile portion and since the store would not be open in the evenings the transfer of noise from the store to the residence should not be an issue.

[52] Mr. Hess replied to Mr. Coggins on March 27, 2012 and pointed out that the Code also required that every dwelling unit should be separated from every other space in a building and he not only required sound separation between the store and the residence portion but also between the one bedroom apartment and the overnight accommodation unit.

[53] On March 23, 2012 Ms. Carson filed her application for a third building permit with the Town; this was the permit for the siding.

[54] Due to Mr. Hess’s insistence that there be fire separation between the one bedroom apartment and the overnight accommodation units the plaintiffs abandoned their plan to have an upstairs apartment; they decided they could not afford the cost of installing a sound barrier between the two units.

[55] Ms. Carson testified that they considered filing a complaint about the way they were treated by the Town with the Ontario Building Commission. They were advised by someone at the commission that there is a requirement found at s. 7.1(1) of the Building Code Act which requires municipalities to establish and enforce a Code of Conduct governing the conduct of their CBOs and building inspectors. The Code must provide enforcement procedures and disciplinary actions.

[56] Ms. Carson and Mr. Forde attended at the Town offices on April 23, 2012 to obtain a copy of the Code and discovered that no such Code had ever been adopted by the Town.

[57] The Town responded by adopting a Code of Conduct on May 4, 2012.

[58] On May 1, 2012 Mr. Hess issued the Change of Use Permit which had been applied for on March 21, 2012. Requirements associated with the change of use included the following:

a) Parking spaces were to be widened to ten feet;

b) A barrier free path of travel was required from the parking area to the mercantile and residence areas;

c) In the absence of a sound barrier the second floor apartment was to remain unoccupied and unused;

d) An attic access was required to both attic spaces;

e) A fire rescue window was required on the second floor;

f) Emergency lighting was required;

g) Fire extinguishers were to be installed;

h) Head flashings were required on windows and doors;

i) An exhaust fan was to be installed in the bathroom

j) Occupancy numbers were not to exceed 4 people in the residential area and 11 in the store.

[59] The lowered occupancy numbers were of considerable concern to the plaintiffs. The stamped drawings which their engineer had submitted called for occupancy of 10 on the residential side and 19 in the store; these numbers were consistent with the occupancy numbers which had been referenced in their discussions with Mr. Schaefer. They did not believe the business was viable with such reduced occupancy loads.

[60] Mr. Hess advised that the only way they could receive approval for higher numbers was if they filed a further zoning amendment application to have the designated uses of the building include “dormitory use”.

[61] In the fall of 2012, with their financial resources exhausted, the plaintiffs gave up their dream of opening their business at 15 Main Street and began to look around for alternative properties. They completed the siding work and prepared the property for sale.

January 1, 2013 to January 1, 2015

[62] In February, 2013 the plaintiffs entered into an agreement to operate the tourist information office in the neighbouring community of Emsdale. As part of this agreement they were permitted to conduct their outfitting business from this location. Ms. Carson explained that this arrangement was not ideal since the Emsdale property did not give them the same close proximity to Algonquin Park; however, she explained that they felt that they had no alternative if they wished to mitigate the losses they had sustained in their failed attempt to re-locate their business in the Town of Kearney.

[63] Mr. Hess resigned from the Town of Kearney’s employ effective June 12, 2013. The plaintiffs contacted his replacement, Brian Horsman to determine what steps they would have to take to close off the three outstanding building permits so they could list the property for sale. Mr. Horsman advised them that he had been instructed not to carry out an inspection of the property “due to the litigation” between the Town and the plaintiffs. As a result, the permits remained open and the plaintiffs could not list the building for sale.

[64] In January, 2015 Mr. Horsman informed them that he had now received the requested authorization from the Town to work with them to close all outstanding building permits.

[65] Mr. Horsman has many years of experience working as a CBO in North Bay and the smaller surrounding communities. The plaintiffs found him to be approachable and cooperative. After several meetings with him they were able to reach an agreement in principle whereby the Town’s requirements were modified and the occupancy loads for the building were increased to levels which would make their business viable. They decided to re-activate their dream of using the 15 Main St. location for their business and at the time of trial they were in the process of making the changes which will enable them to occupy the building and open for the 2016 tourist season.

Evidence of Chris Forde

[66] Mr. Forde confirmed the evidence of Ms. Carson that one of the main reasons the plaintiffs decided to relocate their business from their existing location in Kearney was because the Town installed curbs in front of their downtown location in 2009, which resulted in the loss of their parking.

[67] Mr. Forde testified that he had previously worked at the 15 Main St. residence as a counsellor when it was a group home. The home generally housed 9 residents, sometimes as many as 10. Through his previous involvement with the house he was aware that there were no septic issues or other structural issues. He was aware that the building had been updated when it had been converted to a group home in 2001 and when he and Ms. Carson decided to purchase it he was confident that very little work would be required to make it suitable for their purposes.

[68] Mr. Forde testified that shortly after purchasing the building he initially met at the site with Mr. Schaefer to discuss their plans. He had previously worked in construction in the Town and based on his experience he knew that in Kearney the replacement of house siding did not require a permit.

[69] He and Ms. Carson later met at the site on November 12, 2010 with Mr. Schaefer and the fire department officials. At this meeting they discussed the proposed future use of the building and the changes required therefore. Following this meeting they obtained a building permit for windows, doors and interior renovations and when Mr. Schaefer attended for his building inspection in April, 2011 his work was approved and he was given the authorization to complete the work. At that time the outside of the building had been strapped and covered with rigid foam insulation in preparation for the siding work. Mr. Schaefer did not express any concerns about the occupancy loads, the quality of the work or the fact that Mr. Forde did not have a building permit for the siding or non-structural interior renovations.

[70] Mr. Forde testified that he and Ms. Carson had always been very careful with their finances. As a result of their experiences with the Town they are now “buried in debt”. He testified that he has cashed in all of his RRSP’s and they have maxed out their credit cards.

[71] After Mr. Horsman informed him early in 2015 that he had been given permission to work with them, they started to make progress and he and Ms. Carson have decided to continue with their plans to open up their business in Kearney. He is under the impression that Mr. Horsman is motivated by a desire to “make it work” and he is hopeful that the remaining renovations and changes will be complete for the start of the 2016 season.

Evidence of Paul Schaefer

[72] Paul Schaefer was subpoenaed to testify by the plaintiffs.

[73] Mr. Schaefer served as CBO for the Town of Kearney from 1996 until May, 2011. While serving as CBO for Kearney he also served as CBO for the neighbouring townships of Perry, Armour and McMurrich Monteith. He explained that he was actually under contract with the Township of Perry and that Perry had entered into a sharing arrangement with the other surrounding communities to share his services. When working in Kearney he reported to Kearney’s clerk/administrator who at the time was Yvonne Aubichon. He continues to be employed by the Township of Perry.

[74] Mr. Schaefer has been a resident of Kearney for 22 years. He is familiar with the property at 15 Main St. He opened and closed the building permits for the property when it was converted into a group home in 2001, at which time the garage was converted into a classroom.

[75] Mr. Schaefer confirmed that he was present at the meeting which the plaintiff’s arranged at the property on November 12, 2010. He confirmed that he was there in his official capacity and he confirmed that the Fire Chief, Rick Philip and the Fire Inspector, Kim Harrison were also present. He informed the court that it was quite common for officials in smaller communities to work together with residents by holding meetings like this.

[76] Mr. Schaefer explained that it was his understanding that the meeting was arranged because the plaintiffs wished to re-zone and renovate the property and before beginning the process the plaintiffs wanted to know what the requirements from the Town would be. He testified that at the meeting the plaintiffs explained that it was their intention to convert the classroom into a store for their outfitting business and continue to use the rest of the house for residential purposes. The upstairs of the residence would consist of a one bedroom apartment and two rooms would be used as overnight accommodations for tourists embarking on or returning from a trip in Algonquin Park. The downstairs of the residence would serve as shared accommodation by the overnight guests.

[77] Mr. Schaefer testified that he had no structural concerns about the building and noted that the area in which the store would be located had been updated to a classroom within the last decade.

[78] Within respect to the drywall installation and installation of new siding he explained that in his view the Building Code did not make building permits mandatory for these non-structural types of changes…therefore he did not require a permit for these improvements from the plaintiffs.

[79] Mr. Schaefer also testified that he did not require that the plaintiffs retain a designer/planner or have their plans professionally drawn up. Also, a site plan was not required because no addition was being proposed.

[80] With respect to a change of use permit, he did not require such a permit for several reasons. Firstly, given the fact that the previous use of the building was that of a residential group home with occupancy of up to 10 persons and a classroom he did not believe that the change in use constituted an increased hazard. Secondly, the proposed use was not fundamentally different than the previous use; the residence portion was still being used for residential purposes and the classroom was now to be used as a store.

[81] Mr. Schaefer confirmed that he inspected the premises on April 6, 2011 and approved the framing, insulation and vapour barrier. In his view, all that was required thereafter in order for the plaintiffs to occupy and use the building was a final inspection. He stated that if the first application for re-zoning had been submitted to him for review he would have had no difficulty in recommending the proposed change in use without further conditions.

[82] Finally, Mr. Schaefer testified that he was never contacted by Mr. Hess or by Ms. Aubichon or any other town officials about this property or any other buildings he had been involved in after he stopped working for the Town. If he had been contacted he would have been more than willing to provide information or assistance as needed.

Evidence of Rick Philip

[83] Rick Philip was called as a witness by the plaintiffs.

[84] Mr. Philip testified that he has lived in the Town of Kearney since 1977. He started working as a firefighter in the Town and eventually graduated to Fire Chief. His position required that he report to the Town council and to the clerk, who in 2010 was Yvonne Aubichon. He left the Town’s employ in 2015.

[85] Mr. Philip confirmed that he was at the meeting arranged by the plaintiffs at 15 Main St. on November 12, 2010. He was familiar with the property and he could recall when it was still a single family residence and the owners had horses. He was aware that the house was later converted into a group home, and the garage had been converted to a classroom. When it was a group home he carried out inspections to make sure the home “was safe for the kids”. He did not have any concerns about the safety of the building when it was used as a group home or that it was unfit for those purposes.

[86] Mr. Philip confirmed that when he met the plaintiffs at the premises on November 12, 2010 he was aware that they were “talking about rezoning it”. He recalls that Ms. Carson discussed putting a store where the garage had been.

[87] Mr. Philip testified that as a result of his inspection he required the following in relation to the proposed use:

a) that the drywall have a 30 minute rating;

b) that exit signs be installed to direct occupants in case of fire;

c) that a window of a designated size and height above the floor be installed as a secondary means of egress.

[88] Mr. Phillip testified that when the re-zoning application was sent to him for review his only concerns were that the plaintiffs comply with the requirements set out in the Fire Inspection Safety Report prepared after the November 12, 2010 site meeting.

[89] Finally, Mr. Phillip expressed surprise that he had never been contacted or asked to re-inspect the building by Mr. Hess.

Evidence of Henry Hess

[90] The plaintiffs subpoenaed Mr. Hess who testified as an adverse witness.

[91] Mr. Hess is currently employed by the city of Guelph as a building inspector. He confirmed that he was previously employed as CBO for the Township of Kearney. He started his duties for the Town on May 31, 2011 and left its employ on June 12, 2013. Mr. Hess also served as Kearney’s By-law Enforcement Officer and its Property Standards Officer.

[92] Mr. Hess confirmed that he was provided with a Position Description by the Town but aside from this he was not given any direction from the town with respect to his new position. He was not provided with a list of outstanding building permits or ongoing projects, or provided with an opportunity or encouraged to spend time with his predecessor, Paul Schaefer. Also, at the time of his arrival the Town did not have in place a Code of Conduct as required by Section 7.1 of the Building Code Act.

[93] Mr. Hess was directed to paragraph 1.1(6) of the Building Code Act which sets out the Role of the Chief Building Official. He agreed that at the time he commenced his duties the Town did not have in place established operational policies for the enforcement of the Building Code as set out in s. 1.1(6)(a) of the Act; neither had the Town passed a by-law to establish a Code of Conduct for Building Officials.

[94] Mr. Hess agreed that he operated under the general direction of the Town’s Clerk/Administrator who at the time was Yvonne Aubichon, and he agreed that it was open to Ms. Aubichon to discuss work related concerns about his work with him.

[95] Mr. Hess agreed that he authored the handwritten memorandum on June 1, 2011 which was submitted to council in response to Ms. Carson’s re-zoning application. This was prepared the day after he commenced his duties with the Town. He testified that he could not recall whether he had spoken to Ms. Carson prior to submitting this memorandum; nor could he recall whether he had been advised by Town officials that Mr. Schaefer had already issued a building permit with respect to the building in question.

[96] Mr. Hess agreed that at the time he wrote the memorandum he:

a) had not inspected the property;

b) did not have a history of the use of the building; specifically he did not know that it had previously been used as group home, nor did he know how many residents the ministry had approved to live in the house.

c) did not know that the fire department had conducted inspections of the house prior to the home being opened as a group home.

d) did not have any knowledge of the existing floor, wall or roof assemblies and had not reviewed any drawings describing these assemblies;

e) had not discussed the building or the issuance of the existing building permit with Mr. Schaefer; specifically he had not asked Mr. Schaefer to identify the scope of work he believed was included in the building permit.

[97] A response to admit was filed in these proceedings in which the defendant admitted that Mr. Hess did not speak to Mr. Schaefer about the plaintiffs’ building or his previous involvement therewith.

[98] Mr. Hess agreed that Mr. Schaefer had the authority to speak to Ms. Carson about the requirements she would have to meet for the re-zoning when he met with her in November, 2010.

[99] Mr. Hess also agreed that at no time during his two year tenure as CBO for the Town of Kearney did he ever carry out an inspection or even enter into the plaintiff’s premises at 15 Main St., notwithstanding that fact that the building was located directly across the road from his office. He explained that under the Ontario Building Code the duty to inspect only arises after a request is made to the CBO for an inspection.

Evidence of Linda Moyer

[100] Linda Moyer was called by the defendant municipality. Ms. Moyer has held the position of Planning Technician with the Town since 2009. She reported to Elizabeth Stermsek who held the position of assistant to the clerk and manager of staff.

[101] Ms. Moyer testified that it is not unusual for a party to undertake renovations required for a building’s new use, while going through the re-zoning process, and that the two processes often proceed concurrently.

[102] Ms. Moyer also confirmed that from a planning perspective the plaintiffs should have been able to commence their business after passage of the first zoning amendment by-law. However, she maintained that she was unable to comment on the Building Code requirements which would be associated with such use.

Evidence of Yvonne Aubichon

[103] Yvonne Aubichon was employed with the Town of Kearney from May, 2009 through February, 2014 in the position of Clerk/Administrator. She confirmed that her duties as Clerk Administrator included a duty to oversee the work of the part time planner, Linda Moyer.

[104] Ms. Aubichon did not have a very clear recollection of why the plaintiffs brought an application to re-zone their property. She believed the original application pertained to a shed on the property. She could not recall whether the application was successful and whether the plaintiffs brought a second or subsequent re-zoning application.

[105] Ms. Aubichon agreed that the Town’s job description for its CBO provided that the CBO operated “under the general direction of the Clerk/Administrator”.

[106] Ms. Aubichon agreed that she received an email from Ms. Carson on July 19, 2011 in which Ms. Carson expressed her frustrations at the increasing number of requirements which were imposed on her by Mr. Hess and that these requirements appeared to be inconsistent with the requirements by Mr. Schaefer. She agreed that she forwarded a reply email advising Ms. Carson “that there are processes that are outside of staff control” and commented further in her email that communications between Ms. Carson and the Town were “clearly not working” and suggesting that the steps Ms. Carson should take following the re-zoning were the following:

A complete building permit application must be submitted for the change of use and any required renovations that complies with the Ontario Building Code, all applicable law and the Town of Kearney building by-law.

[107] Ms. Aubichon concluded her response by informing Ms. Carson that a Building Permit Application and a Guide were available at the Town office.

[108] Ms. Aubichon admitted that she did not recognize that there may have been an issue of procedural fairness involved in Ms. Carson’s complaint. She was aware that the Town had not passed a Code of Conduct governing the conduct of its CBO at that time. Eventually the Town did pass such a by-law on May 4, 2012 shortly after Mr. Forde attended at the town office and requested a copy of Kearney’s Code of Conduct by-law.

Evidence of Brian Horsman

[109] Brian Horsman was appointed CBO of the Town of Kearney in July, 2013. He was called as a witness by the defendant municipality.

[110] Mr. Horsman was previously employed as CBO of the City of North Bay and has many years of experience in this position. Since his retirement he has worked on a part time basis in several of the smaller communities in the North Bay area and he commenced working in this capacity in Kearney in July, 2013 following the departure of Mr. Hess.

[111] Mr. Horsman testified that there is a provision in the Building Code which provides that a Municipality can require a building permit for siding and roofing work. However, many smaller communities in the area do not require permits for this type of work; some don’t require permits for the replacement of windows either provided the replacement windows are the same size as the original ones. It was his view that when municipalities waive this requirement they should do so by way of by-law.

[112] In 2013 Mr. Horsman was contacted by Mr. Forde who sought his assistance in closing out the three permits which were still open on the 15 Main Street site. He then spoke to the clerk administrator and he was instructed not to meet with Mr. Forde.

[113] In February, 2015 he was given approval to meet with Mr. Forde. He arranged a meeting with Mr. Forde at 15 Main Street and after having a look at the building he concluded that it was in “relatively good shape as far as older buildings go”.

[114] Mr. Horsman reviewed the file on the property and in doing so he became aware that the residence had previously been used as a group home and the garage as a classroom operated by the School Board; he also came across related documents including fire safety inspection reports.

[115] Mr. Horsman stated that in his mind what was needed with respect to the plaintiffs’ concerns was a “fresh start”.

[116] After meeting with Mr. Forde and discussing various alternatives Mr. Horsman suggested to Mr. Forde that he request his engineer to prepare amended plans based on their discussions. In his view, the three outstanding permits in the file formed a mixture of a change of use and conventional building permits and he was prepared to amend one of the permits as necessary to incorporate all changes which were necessary, and the plaintiffs could complete any outstanding work on the basis of that one permit. Furthermore, it would not be necessary for them to undertake another zoning amendment application.

[117] After his initial meeting with Mr. Forde, Mr. Horsman met with Mr. Coggins, the design engineer. Eventually, over the course of the summer an agreement was reached whereby the plaintiffs could commence occupancy on the basis that they perform the following work:

a) Install a fire separation door between the basement and the residential stairways;

b) Removal of the apartment from the plans and use the second floor for overnight accommodations only;

c) Re-locate and rebuild the exterior fire escape stairs;

d) Wire in smoke and fire detectors;

e) Connect HRV (approval to connect to main furnace);

f) Install fire exit signs (not required to be wired in);

[118] Based on these changes, the occupancy loads were established at 15 persons for the store portion and 14 persons for the residential portion. The plaintiffs believe these occupancy loads are sufficient for their business purposes.

[119] Mr. Horsman agreed that the fact that he had on-sight meetings was helpful in resolving the outstanding issues.

SUMMARY OF REQUIREMENTS IMPOSED BY TOWNSHIP OF KEARNEY

[120] One of the major complaints by the plaintiffs is that the requirements which were imposed on them by the Town kept changing and increasing in number, seemingly in an arbitrary manner. They placed into evidence the following summary of these changing requirements.

CHRONOLOGY OF CHANGING REQUIREMENTS

(Prepared by Ms. Carson)

Original requirements from Paul Schaeffer CBO and Kearney Fire Department and Town of Kearney November 2010 – May 2011

• Zoning to be changed to Commercial

• Window and door changes – front and rear door needed to be changed to be a minimum of 34”, the second floor windows needed to be replaced to qualify as secondary means of escape, a small window needed to be closed in below the fire escape stairs.

• 30 minute fire resistance rating is required for wall and floor assemblies which meant drywall replacement.

• Exit signs shall be located along a means of egress so that direction of exit travel is apparent to the occupants.

• Hand drawings could be completed by the home owner.

Requirements since Henry Hess – Kearney’s CBO as of May 30, 2011

June 2, 2011 we were informed by a letter from Henry:

• We would need a permit for our siding renovation which the siding had already been removed and the foam board insulation completed for months.

• Change of Use permit would be required

• A review of the septic system by NBMCA

• Detailed Site Plan

July 19, 2011 – Meeting with Robin and Henry – Henry shared the following requirements

• Qualified Designer

• Accessible bathroom for the store

• Permit and drawings for our siding

• Mr. Hess required 15 parking spaces…one for the apartment, three for the retail store and 10 for the two rooms which provided overnight accommodation (the “hotel” use).

October 31 – planting strips – parking paved

November 18, 2011- second zoning amendment passes. Paving of parking spaces no longer a requirement…number of parking spaces reduced to 10

March 15, 2012 – Conversation between Henry and our Engineer Kip Coggins

• Ventilation (HRV) systems for the store and one bedroom apartment.

• Fire separation from the basement to the upstairs or raising the basement floor.

• Interconnecting all of the smoke and heat detectors.

March 22, 2012 – Letter from Henry to Kip, also phone call from Henry to Chris

• Fire separation required on the exterior west wall of the store.

• Increased fire separation between the 2 storey dwelling unit and the rest of the building.

• 1 hour fire separation from residential to store

• Sewage system permit for bed extension

• Parking spaces at front need to be widened by two feet

• Site plan required amendment

• Sound separation

March 27, 2012 – Henry sends letter to Kip

• Sound separation between mercantile and the residential.

• Kip emailed me to suggest we drop the one bedroom apartment for now because the sound separation is a considerable amount of work.

May 1, 2012 – Change of use permit issued (was applied for March 21, 2012)

• Our Engineer was required to stamp his drawings before Henry would issue the Change of Use permit.

• Parking spaces to be a minimum of 10x20

• Occupancy numbers were lowered by Henry on our Engineers drawings to 4 people in the residential and 11 in our store.

• Barrier free path of travel required from parking spaces into residential and mercantile.

• Second floor apartment to remain unoccupied and unused.

• Minimum 22” x 35” attic access required into both attic spaces

• Minimum 22” x 43” fire rescue window on second floor of tourist establishment

• Emergency lighting

• Fire extinguishers

• Head flashings on windows and doors

• Exhaust fan in bathroom

September 19, 2012 - Kip emailed us saying he was at a loss, he did not feel we could win with Henry and it was costing us a lot of money.

Current Requirements with Kearney’s current CBO Brian Horsman since January 2015:

• Revised drawings from Kip

• Fire separation in basement and residential stairways

• With the apartment already removed from our drawings the easiest way to move forward was to remove the apartment and open up the stairs.

• Fire exit stairs to be re-done

• Fire exit signs not required to be wired in

• Interconnected smoke detectors/carbon detectors

• HRV can be connected to main furnace

• Occupancy 15 people for main floor mercantile and 14 people for residential

PLAINTIFFS’ CLAIM

[121] The plaintiffs allege that the town was negligent in the way it handled and processed their applications for building permits and rezoning. They submit that as a result of their inability to meet the unreasonable, incremental and excessive requirements of Henry Hess they lost the opportunity to carry on their business at 15 Main St. during the 2011 tourist season and for the years thereafter. In addition to a loss of profits, they were also forced to incur unnecessary expenses associated with the renovation of their building, and they were unable to mitigate their losses by selling their building when Kearney’s new Chief Building Official, Brian Horsman advised them that he was instructed not to work with them. They hold the municipality responsible for these losses.

[122] Ms. Carson and Mr. Forde also claim that the actions of the Town resulted in significant emotional and mental distress, and they claim general damages in relation thereto.

LEGAL FRAMEWORK FOR PLAINTIFFS’ CLAIM AGAINST THE DEFENDANT

[123] The Plaintiffs’ claim against the Town of Kearney is framed in two torts:

1. negligence

2. negligent misrepresentation

[124] The Plaintiffs claim that they suffered economic losses as a result of the defendant’s negligent actions.

[125] In Canadian National Railway v. Norsk Pacific Steamship Co., 1992 105 (SCC), 1992 CarswellNat 168 at para. 49, [1992] 1 S.C.R. 1021 (S.C.C.) the Supreme Court recognized five categories of negligence claim which give rise to compensable economic loss:

1. independent liability of statutory public authorities;

2. negligent misrepresentation

3. negligent performance of a service

4. negligent supply of dangerous or shoddy goods or structures; and

5. relational economic loss resulting when a third party suffers from the loss to the injured party.

[126] It is now generally recognized that municipal authorities can be sued on the basis of the first two categories, namely negligence against a public authority and negligent misrepresentation. See Anns v. Merton London Borough Council,[1978] A.C. 728; Nielsen v. Kamloops (City), 1984 21 (SCC), 1984 CarswellBC 476 (S.C.C.).

[127] The plaintiffs claim that both torts can be made out in this case.

[128] The elements which are required to make out a claim for negligence are the following:

1. the defendant owes a duty of care to the plaintiff;

2. the defendant should have observed a standard of care in fulfilling that duty;

3. the defendant breaches the duty of care;

4. the plaintiff suffers damages; and

5. the damages were foreseeable.

[129] The elements which are required to make out a claim for negligent representation are set out in Queen v. Cognos Inc., 1993 146 (SCC), 1993 CarswellOnt 801 at para. 34, [1993]1 S.C.R. 87 (S.C.C.) and include the following:

1. there is a duty of care based on a “special relationship” between the representor and the representee;

2. the representation must be untrue, inaccurate or misleading;

3. the representor must have acted negligently in making the misrepresentation;

4. the representee must have relied, in a reasonable manner, on the negligent misrepresentation; and

5. the reliance must have been detrimental to the representee in the sense that damages resulted.

ANALYSIS OF PLAINTIFFS’ CLAIM

Did the Defendant Municipality have a Duty of Care towards the Plaintiffs?

[130] The first element in each of the torts of negligence and negligent misrepresentation is “duty of care”. The two questions which must be asked in respect of duty of care in a municipal context were defined in Anns v. London Borough of Merton and adopted in Nielsen v. Kamloops (City) (the “Anns/Kamloops test”) and are as follows:

1. Is there a sufficiently close relationship between the parties such that, in the reasonable contemplation of the alleged tortfeasor, carelessness on its part might cause damage to the other person?

2. If the answer to question 1 is yes, are there any considerations which ought to negative or limit (a) the scope of the duty, (b) the class of persons to whom it is owed, or (c) the damages to which a breach may give rise?

See Nielsen v. Kamloops at para. 40.

[131] In Ingles v. Tutkaluk Construction Ltd., 2000 CarswellOnt 447 at para. 17 the Supreme Court noted a relatively low threshold as the first step in the Anns/Kamloops test. The court found that there is a prima facie duty of care established if it can be shown that a relationship of proximity existed between the parties such that it was reasonably foreseeable that carelessness on the part of the public actor would result in injury to the other party.

[132] In my view, the Town of Kearney had a duty of care to Robin Carson and Chris Forde. Clearly, the actions of the Town’s Chief Building Officials (“CBOs”) and other Town representatives such as Ms. Boyer, Ms. Aubichon and Mayor Tomlinson had a close and direct impact on the Plaintiffs. The Plaintiffs were vulnerable in the sense that they needed building permits and re-zoning to accomplish their goal of moving their business into their newly purchased building. Knowing that, Town of Kearney officials ought to have had the Plaintiffs in mind as persons potentially harmed by their actions. They ought to have known that carelessness on their part might cause significant loss. They must have known that time was of the essence and that unnecessary hurdles placed in their path meant unnecessary expense without corresponding income. They should also have known that by instructing CBO Horsman not to work with the plaintiffs in 2013 and 2014 they were preventing the sale of the property and preventing them from mitigating their losses, thereby causing further economic loss.

[133] With respect to part 2 of the Anns/Kamloops test, the decisions which were made, the information which was provided and the requirements which were imposed by the combination of three successive CBOs were clearly made in the operational sphere of the defendant’s mandate. In my view there are no considerations limiting the scope of the duty, the class of persons to whom it is owed, or the damages to which a breach of the duty of care may give rise.

[134] In conclusion, I find that Town of Kearney had a special relationship with the plaintiffs which imposed on it a duty of care towards the plaintiffs.

What is the standard of Care?

[135] The standard of care for building inspectors was expressed by Cory J. at Par. 40 in Ingles v. Tutkaluks, supra, as the standard which can be:

… expected of an ordinary, reasonable and prudent inspector in the same circumstances. The measure of what constitutes a reasonable inspection will vary depending on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury….

[136] The standard of care is also informed by what the Building Code Act states are the purposes of the Code of Conduct for Chief Building Officials which municipalities are mandated to establish pursuant to section 7 of the Act. These purposes are incorporated and listed in Kearney’s Code of Conduct as follows:

PURPOSES

The purpose of this Code of Conduct is:

3.1 To promote appropriate standards of behavior and enforcement actions by the Chief Building Official and Inspectors, in the exercise of a power or the performance of a duty under the Act or Building Code;

3.2 To prevent practices which may constitute an abuse of power, including unethical or illegal practices, by the Chief Building Official and Inspectors in the exercise of a power or the performance of a duty under the Act or the Building Code;

3.3 To promote appropriate standards of honesty and integrity in the exercise of a power or the performance of a duty under the Act or the Building Code by the Chief building Official and Inspectors.

[137] The Town’s Code includes the following reference to the standards of conduct and professionalism which must be followed by its CBO:

STANDARDS OF CONDUCT AND PROFESSIONALISM

The Town of Kearney Chief Building Official shall undertake at all times to:

4.1 Act in the public interest, particularly with regard to the safety of building works and structures; …

4.9 To, at all times, abide by the highest moral and ethical standards and avoid any conduct which could bring or tend to bring Building Officials into disrepute; …

4.11 Not act beyond their level of competence or outside their area of expertise;

Did the Defendant Municipality Breach its Duty of Care?

[138] In my view the Town of Kearney breached its duty of care to the plaintiffs in the following ways:

1. Failure by Henry Hess to acknowledge that the Building Permit issued by Paul Schaefer was issued with respect to the Future Commercial Use of the Building

[139] In his response to the first re-zoning application Mr. Hess directed that the plaintiffs obtain two additional building permits as a pre-condition to completing their renovations. By doing so he failed to accept that Mr. Schaefer’s January 21, 2011 building permit was intended to cover all the renovations which were required for the conversion of the building to commercial uses.

[140] Mr. Hess’s reasons for concluding that the previous building permit was not issued with respect to the future change in use of the building are set out in his memorandum of July 8, 2011. In this memorandum he states the following:

1. November 12, 2010 - Paul Schaeffer’s presence at this meeting would have been as a courtesy since there was no building permit issued or applied for and at this time he would have no authority to perform an inspection.

2. January 14, 2011 – Paul Schaeffer’s recommendation to apply for a windows and doors permit only (Permit #11-01) would have been based on the fact that he would have been unable to issue a building permit for a change of use and any required renovations, since the change of use would not comply with applicable law until the appeal period of a successful rezoning application had expired.

[141] In my view, the evidence clearly discloses that Mr. Schaefer issued his building permit to enable the plaintiffs to convert the building to commercial use, and the scope of the permit was to include all changes required therefore. This evidence includes the following:

1. The plaintiffs’ application for a building permit described the proposed use of the building as “residential/commercial” and described the current use as “residential”. This application was available in the building file in the Town offices for review by Mr. Hess.

2. The permit granted by Mr. Schaefer described the work to be performed as “Renovation/Replacing Windows and Doors” and the Inspection Report completed by him on April 6, 2011 described the work which he approved as “Framing Exposed, Insulation and Vapour Barrier”. Clearly Mr. Schaefer’s permit was much more than just a “windows and doors permit”.

3. The plaintiffs were in the process of applying for a change in zoning to commercial use. Common sense dictates that in the circumstances they would not have taken out a building permit to undertake renovations designed solely to meet residential needs and codes.

4. The Fire Inspection Report issued on February 18, 2011 required the plaintiffs to install (a) “exit signs…along a means of egress”, (b) a window of specified dimensions to “serve as a second means of escape” and (c) “thirty minute fire-resistance rating” materials for wall and floor assemblies. With his knowledge of construction and building codes Mr. Hess would or should have known that such changes relate to the commercial use of a building.

[142] Mr. Hess refused to follow up on Ms. Carson’s request that he contact Mr. Schaefer. If he would have placed a call Mr. Schaefer would have confirmed that:

i. He attended the premises on November 12, 2010 and on January 21, 2011 in his official capacity as CBO;

ii. He issued the building permit because the plaintiffs wished to change the use of the building;

iii. The improvements which he discussed with them during his site visit and which he referred to in his permit comprised all of the changes he required from them.

iv. It was not his policy, nor was it the policy generally in the surrounding communities, to require a building permit for the replacement of siding; accordingly he did not require such a permit from them.

v. He permitted the plaintiffs to prepare their own drawings.

[143] When Mr. Hess accepted the position of CBO of Kearney he assumed responsibility for partially completed projects. Earlier decisions made by Mr. Schaefer in relation to these projects were binding on the Town and were relied on by building owners. In my view, upon commencing his duties with the Town, it was incumbent on him to take steps to determine what commitments and agreements had been made in relation to these open permits by his predecessor. In the case of the plaintiffs, at the very least he had a duty to place a telephone call to Mr. Schaefer. His refusal to make such further inquiries was unreasonable and constituted an abuse of power and his subsequent actions resulting from his refusal resulted in unnecessary hardship to the plaintiffs.

2. Failure by the Town of Kearney to exercise its duty to supervise Mr. Hess

[144] The Town’s job description for its Chief Building Official provides that the CBO is to perform his or her duties “under the general direction of the Clerk/Administrator”.

[145] Section 7.1 of the Building Code Act provides that councils are to establish and enforce a Code of Conduct for their CBO’s. The Act provides that the purposes for which such a Code of Conduct is to be established includes the promotion of “appropriate standards of behaviour and enforcement actions by the CBO” and prevention of “practices which may constitute an abuse of power” by the CBO.

[146] I agree that CBO’s should be permitted to carry out their duties with a degree of independence, particularly in matters involving the interpretation and enforcement of building codes. However, as confirmed in the Town’s job description and in s. 7.1 of the Building Code Act, such independence is not absolute, and a CBO remains subject to direction and supervision by Town officials. Such supervision and direction relates particularly to issues pertaining to procedural fairness and abuse of process.

[147] The plaintiffs appealed to Town council to assist them in resolving what they felt were unfair and unrealistic requirements imposed on them by the Town’s new CBO. The Town brushed these concerns aside.

[148] In an email directed to Ms. Aubichon and members of council dated July 19, 2011 Ms. Carson expressed her concern that the new building official demanded that the plaintiffs retain a designer, a permit for their siding, a septic report, and that they construct a wheelchair accessible bathroom for the store. She pointed out that these new requirements were inconsistent with the requirements imposed by the previous CBO.

[149] In her reply Ms. Aubichon stated that “this is Mr. Hess’s jurisdiction, we cannot interfere…you were advised by Mr. Hess of this in our meeting of July 8, 2011”. Ms. Aubichon also suggested that the problem was one of communication and her proposed solution was as follows:

“…A complete building permit application must be submitted for the change of use and any required renovations that complies with the Ontario Building Code, all applicable law and the Town of Kearney By-Law.”

[150] Clearly, the issues raised by Ms. Carson did not pertain to problems with communication and quite clearly the plaintiffs did not need to have Mr. Hess’s requirements re-stated by Ms. Aubichon. The real issue was one of procedural fairness, and the town failed in its duty to recognize or address this issue.

[151] In the months that followed her email of July 19, 2011 Ms. Carson made several more appeals to Town council for relief from the ever increasing and seemingly arbitrary requirements imposed on them by the Town’s CBO. Their complaints continued to fall on deaf ears. Implicit in the responses from members of Town council and its officials was that Mr. Hess enjoyed almost complete independence in carrying out his duties, and was not subject to any supervision by council.

[152] The Town should also be held responsible for the fact that they failed to arrange a meaningful orientation for Mr. Hess, or insist that he spend time with Mr. Schaefer reviewing in-progress files.

[153] In conclusion, I am of the view that the Town failed in its statutory and contractual duty to supervise the behaviour and conduct of its CBO.

3. Refusal by the Town of Kearney to permit Mr. Horsman to assist the plaintiffs in closing out their permits to permit them to list the property.

[154] In 2013 the plaintiffs had decided to relocate their business elsewhere and sell their building at 15 Main Street. They did not believe they could sell it with three open permits and sought the assistance of the Town’s new CBO, Henry Horsman.

[155] Mr. Horsman informed the plaintiffs that he had been instructed by the Town not to assist them because there was litigation between the Town and the plaintiffs involving the property. Accordingly, the remaining work could not be completed and inspected and the plaintiffs were unable to list their property for sale.

[156] It was not until early in January, 2015 that Mr. Horsman received the requisite approval from the Town to work with the plaintiffs.

[157] In my view, the refusal by the Town to permit its CBO to work with the plaintiffs in 2013 and 2014 was a clear breach of its statutory duty under the Building Code Act to inspect a property which had been granted a building permit. By refusing to allow its new CBO to assist the plaintiffs in completing the required work, the Town effectively prevented the plaintiffs from taking steps to mitigate their losses.

4. Failure by Henry Hess to exercise Due Diligence and Procedural Fairness in issuing his Requirements

[158] Mr. Hess used his June 1, 2011 demand that the plaintiffs apply for a change of use building permit as a springboard from which to impose numerous additional and incremental requirements on them over the succeeding months and years.

[159] As noted above, the standard of care for building inspectors as established by the Supreme Court in Ingles v. Tutkaluks is “the standard which can be expected of an ordinary, reasonable and prudent inspector in the same circumstances”. In my view, an ordinary, reasonable and prudent inspector carrying on his duties in the circumstances of this case would have commenced his consideration of the plaintiff’s zoning application by walking across the street from his office in the municipal building and inspecting the building personally. A building permit had already been granted in relation to the ongoing renovations and so he had a right to inspect. Such an inspector would also have engaged the owners in a discussion about their plans and intended uses, and would have looked through the records to determine what renovations may have been carried out on the property in the past, and what renovations had been applied for and approved to date.

[160] This is the process followed by Mr. Schaefer and is reflected in the fact that he authorized the work to proceed on the basis of only a modest expenditure of time and materials. This is also the process followed by Mr. Horsman. In contrast, Mr. Hess issued his first requirements, including his demand that the plaintiffs apply for two additional building permits, the day after he commenced his employment with the Town. He issued his demand for these permits without having first visited the premises, or arranging a meeting with the owners, or taking the time to speak to the previous CBO; neither did he conduct any inquiries into the history and previous uses of the building.

[161] The plaintiff’s building was a simple two storey residence for which the plaintiffs had paid a modest amount of $98,000. The building had received major improvements as recently as 2001 when it was converted to a group home and approved for these purposes by the Town’s building department. At the same time the garage had been converted into a classroom and used by the local school board so one can assume both the main residence portion and the classroom/store portion were structurally sound and complied with current safety codes.

[162] The proposed changes to the residence were minimal…the classroom would be used as a store, and the residence portion would continue to serve as a residence.

[163] In my view, Mr. Hess’s failure to take such reasonable and prudent steps as discussed above represented a carelessness on his part which is the most likely explanation for the fact that his requirements where so much more onerous than those of either Mr. Schaeffer or Mr. Horsman. Mr. Hess’s approach was a “by the book” approach, and this approach prevented him from adopting a reasonable and balanced approach. In contrast, Mr. Schaefer and Mr. Horsman focused on the actual building and the requirements of its owners, and this enabled them to exercise their discretion in a reasonable manner and to apply a degree of proportionality to their decisions.

[164] Clearly, the timing of many of Mr. Hess’s requirements was also unreasonable. It was not until after the plaintiffs had completed the process of obtaining their first zoning amendment that he informed them that he had decided to designate the two rooms on the second floor as two separate units. As such, they were considered “hotel use” units and the plaintiffs were therefore required to provide 10 parking spots for these two rooms.

[165] The plaintiffs then brought a second zoning application to have the residence portion designated for “tourist use”. They were granted this designation by the Town on November 18, 2012. Thereafter Mr. Hess informed them that their occupancy limits had been reduced to 4 for the residency portion of the building and 11 for the store portion. With these reduced occupancy limits their business plan was no longer viable and the plaintiffs had to give up their dream of using the building to conduct their business.

[166] The plaintiffs submit that had they been informed in advance by Mr. Hess that he intended to impose such onerous conditions following their successful zoning applications they would have simply resold the property.

[167] In conclusion, I find that Mr. Hess was negligent in his dealings with the plaintiffs and in his representations to them. The requirements he imposed on them were excessive and arbitrary and did not reflect a careful consideration of the condition and history of the building and its intended use. The timing of many of his decisions was also onerous. These actions caused considerable and unnecessary hardship to the plaintiffs.

DAMAGES

[168] The plaintiffs have now owned the building at 15 Main St. for almost 6 years. They have invested a significant amount of time and money in making changes to the building so they can use it to carry on their outfitting business. I hold the defendant municipality responsible for the fact that as of the date of trial the plaintiffs were still unable to use the building for their outfitting business.

[169] The plaintiffs have sustained damages as a result of the defendant municipality’s breach of its duties, and I have assessed these damages as follows:

1. Claim for Loss of Business Profits

[170] Christine Larkin is a Chartered Professional Accountant and Chartered Business Valuator who prepared a loss quantification report on behalf of the plaintiffs (The “Gilbert Larkin Report”). Her report commented on the loss of potential profits resulting from the inability of the plaintiffs to operate their business from their 15 Main Street premises during the 2011 – 2015 tourist seasons.

[171] In her report Ms. Larkin explains that her quantification approach considered the projected profits that would have been earned under the business’s current growth model less the actual profits or losses accumulated in the year.

[172] She also reviewed attempts by the plaintiffs to mitigate their losses, such as renting the 2 short term bedroom suite as a long term rental unit in 2013, re-locating their business to the Emsdale Information Centre and exchanging their services at the information centre in lieu of rent. The plaintiffs also changed the name of the business from Trailside Adventure Co. to Algonquin Basecamp. By having “Algonquin” in the name, the business was more visible and obtained more “hits” on the internet, resulting in an increase in pre-booked canoe rentals.

[173] Ms. Larkin comments that her information revealed that daily canoe rentals dropped when the move was made from Kearney to Emsdale since the park employees no longer referred business to the plaintiffs as it would mean backtracking for park visitors. She calculated that lost revenue to be $26 per rental. This amount was offset by pre-booked rental increases of approximately $130 per rental. However the business had the capacity and rental equipment to facilitate all rentals. The Emsdale location also lacked on-site storage for equipment and vehicles, resulting in excess vehicle, transporting and delivery expenses.

[174] Ms. Larkin’s conclusions are contained in the following schedule:

ESTIMATED BUSINESS LOSSES…2011-2015

2011 2012 2013 2014 2015 Total

Retail/rental 22,156 46,442 21,762 23951 23,954 138,265

Operations

Long-term 4,800 7,200 7,344 7,488 Nil 26,832

Rental suite

Short-term 15,300 26,100 24,450 29,700 47,850 143,400

Lodging

Total $42,256 $79,742 $53,556 $61,139 $71,804 $308,497

[175] The defendant municipality filed a report containing a review of the Gilbert Larkin report prepared by William R. Blair, an accountant and certified business evaluator with McColl Turner LLP, a chartered accountancy firm (The “McColl Turner Report”).

[176] The McColl Turner Report does not purport to independently verify the financial information on which the Gilbert Larkin report was based, nor did Mr. Blair meet with management or visit the plaintiffs’ business premises. The Report accepts the financial information compiled and used by Ms. Larkin in preparing her report. Neither does the McColl Turner Report purport to express independent conclusions with respect to the losses as set out in the plaintiffs’ report; it seeks only to assess the reasonableness of the plaintiffs’ conclusions.

[177] The McColl Turner Report raises a number of questions and concerns about the methodology and assumptions used in the Gilbert Larkin Report. These include concerns about the estimated growth rate and the estimated gross margin rate applied by Ms. Larkin, the failure to include any expenses for wages, and the rental and occupancy rates attributed to the short term rental units and one bedroom apartment.

[178] Ms. Larkin responded to the concerns raised in the McColl Turner Report in her examination in chief and in cross-examination.

[179] Ms. Larkin’s professional practice is located in the small northern Ontario Town of Bracebridge and it was apparent that she is knowledgeable about the challenges faced by the owners of small tourist businesses in Northern Ontario. She professed that her estimates were generally conservative and I would agree. At the conclusion of her examination I was satisfied that her report accurately sets out the income losses sustained by the plaintiffs.

[180] In awarding damages for lost profits I have decided not to award such damages for the 2011 season because I am not convinced that the necessary renovations and approvals would have been completed in time to allow the plaintiffs to use the 15 Main St. site during the 2011 season. I note for example that the hearing to discuss the zoning application was not held until July 15, 2011 which would have been approximately the half way mark of the season. I have not overlooked the fact that the hearing was initially scheduled for June 3, 2011 but delays of this nature are inevitable and in my view such delays do not result from any negligence on the part of the municipality.

[181] I am satisfied that the plaintiffs would have moved into their building and started carrying on business in their new location in 2012 and continuing thereafter, absent the negligence of the Town in processing their building permits and zoning applications. The terminal date for these lost profit damages is the end of the 2015 season because the evidence is that the plaintiffs will be in a position to open for business at 15 Main Street this coming season. In conclusion, I am awarding the plaintiffs the sum of $266,241 which represents the lost profit opportunities for the 4 years from 2012 through 2015.

2. Claim for Cost of Additional Work and Materials required by the Town

[182] Calvin Cope was called a witness by the plaintiffs. Mr. Cope operates a general contracting business called Near North Timberframe Contracting which is based in the neighbouring township of Perry and he has operated this business for approximately 7 years. Chris Forde has worked for Mr. Cope’s company in the past and continues to work for him on a part time basis.

[183] Mr. Cope assisted the plaintiffs with some of the renovations carried out by them at 15 Main Street, including the installation of the exterior insulated sheeting and siding. He testified that he has performed many siding installations in Kearney and the neighbouring townships. He took out the permit for the building at 15 Main St. and this is the first and only time he has ever been required to take out a permit for siding installations in any of these communities.

[184] Mr. Cope explained that since the plaintiffs had very little money to devote to these renovations he agreed to provide much of his labour on a trade for services basis with Mr. Forde.

[185] Mr. Cope provided an estimate to the court in which he broke down his labour and material costs for the building improvements which were required by the Town after Mr. Hess’s arrival. The items on the list do not include any of the items requested by Mr. Schaefer or by the fire department such as the new windows and vapour barrier and fire coded drywall in the residence portion of the house; nor do they include Mr. Forde’s labour.

[186] Mr. Cope’s estimate for completing the work required by Mr. Hess includes a cost for labour assessed at $20,003.00 and materials at $14,825.00 for a total cost of $34,828.00.

[187] Mr. Cope noted that his estimate was prepared on the assumption that Mr. Forde would work with him but would be donating his time.

[188] Only some of the work included in this estimate has been completed.

[189] Mr. Cope’s estimate, which I will refer to as the “Henry Hess List” is as follows:

Quote from Near North Timberframe Contracting (Calvin Cope) for additional work requested by Henry Hess for 15 Main St., Kearney

The “Henry Hess List”

Material Labour

Accessibility changes

House – New front door 1500 500

Ramp 500 900

Move wall 500

Store- Ramp 150 300

New Floor 900 1300

Bathroom 600 1000

Drywall 400 650

HRV 1000 1500

Fire door 800 350

Attic access 150 150

Exterior densglass

Apartment changes

HRV 1000 1500

Stairs 1000 1500

Soundproofing 2000 4000

Residence-general

Exit Signs 1000 1500

Basement 1500 1500

Attic access 150 150

Fan 50 400

Parking 1700 1375

Drywall 425 928

Totals $14,825.00 $20,003.00

Total material and labour $34,828.00

[190] Mr. Cope prepared a second estimate which includes only the work which the plaintiffs have now agreed to complete as per Mr. Horsman’s requirements. This estimate, which I will refer to as the “Brian Horsman list” sets out a total cost of $15,081 for the remaining work and materials as follows:

Quote from Near North Timberframe Contracting (Calvin Cope) for additional work requested by Brian Horsman for 15 Main St., Kearney

The “Brian Horsman List”

ACCESSIBILITY MATERIAL LABOUR

New floor – store 900 1300

Store bathroom 600 1000

LODGE/GENERAL

HRV 1000 1500

Exit Signs 40 (only one required now) 250

Parking 1700 1375

Fire Escape Stairs 1000 1500

Basement (fire door only) 300 350

Fire Door 800 350

TOTAL 6340 7625

Total Material and labour = 13,965

Additional requirements: 9 interconnected Smoke/Carbon Detectors: $124 x 9 = $1116

TOTAL = $15, 081

[191] No evidence was called to contradict Mr. Cope’s estimates and I accept that it fairly and accurately sets out the costs of the work required from the plaintiffs by Mr. Hess.

[192] In assessing the plaintiff’s claim for damages under this heading I make the following observations.

[193] Firstly, I note that a number of the items on the Henry Hess List have not been completed. For example, the soundproofing in the residence portion, which is a $6000.00 item, has not been completed; this item does not appear on the Brian Horsman List and there is no evidence that the plaintiffs intend to undertake this work in the future. The cost of installing exit signs has an estimated cost of $2500.00 in the Henry Hess List. The number of exit signs has been reduced to one in the Brian Horsman List, at an estimated cost of only $290.

[194] Secondly, I believe that it is quite likely that the plaintiffs would have undertaken some of the improvements set out in these lists in any event, either while they were completing the renovations or at some time in the future when they had the financial resources to do so. Although these items may not have been included in Mr. Schaefer’s list of requirements, many of them, such as the installation of ramps to make the buildings wheel chair accessible, and the installation of attic access doors, represent reasonable improvements which will only enhance the usefulness and convenience of the property on a long term basis.

[195] Thirdly, I heard testimony during the trial from three different CBO’s and each had his own opinion on what changes were actually required to meet current zoning and Building Code requirements. Mr. Cope agreed that a number of the items on the lists and which were not included with Mr. Schaefer’s requirements may very well constitute valid requirements under the Building Code, notwithstanding the fact that Mr. Schaefer exercised his discretion to waive compliance with them.

[196] In summary, some of the items on these lists have been completed, and some of them have not. Depending on one’s interpretation, some may constitute valid requirements under the Building Code. The plaintiffs have agreed to complete the items on the Brian Horsman list, and these improvements will have some ongoing benefit and value to the plaintiffs. I am therefore left with considerable uncertainty as to what damages, if any the plaintiffs have sustained in relation to this aspect of their claim. In the circumstances I have decided not to award any damages for the cost of these additional improvements.

[197] I am awarding the plaintiffs their expenses for retaining the services of Ms. LeBlanc ($953.00) and their expenses for retaining the services of Mr. Coggins ($5,353.94). Professional planning and engineering services were not required by Mr. Schaefer. The proposed changes to the building were modest and I am not convinced that such services where necessary.

3. General Damages

[198] At the conclusion of his testimony, an obviously frustrated and emotional Mr. Schaefer expressed his view that Town officials “should be ashamed” of the way they had treated Ms. Carson and Mr. Forde. These sentiments were echoed in a September 22, 2011 editorial in the local newspaper, the Almaguin News. The editor lamented the fact that a town that billed itself as “Ontario’s Biggest Little Town” had treated the plaintiffs with such disregard. The article reminded the readers that “It has always been our perception that one of our best asset here is that, unlike large amalgamated population centres, it is still possible to get things done on the basis of common sense, a person’s good word and a handshake”.

[199] In my view, any right thinking person would be dismayed by the manner in which Town officials treated the plaintiffs. I would have expected that Town Officials would have welcomed with open arms a couple of young entrepreneurs who displayed the initiative and resourcefulness of the plaintiffs. It is a tribute to the strength of character and perseverance of the plaintiffs that they did not give up on their dream in the face of the indifference and obstacles placed in their path by Town officials.

[200] The plaintiffs’ experiences with the Town did not come without an emotional price tag however. Ms. Carson talked about the strain which was placed on her and Mr. Forde’s relationship, and the difficulty of having to raise their child while they were trying to operate both their business and service the public at the Emsdale tourist information office. They have now been living with the stress of uncertainty about their business for almost 6 years. They have suffered a significant degree of inconvenience, disappointment, and loss of enjoyment.

[201] Authority for awarding general damages in cases such as this can now be found in cases such as McHardy v. Charlene Witt Realty Ltd., [1999] O.J. No. 265, Somerville v. Ashcroft Developments Inc. et al [2005] 27894 (ONSC), Smerigilio v. Great Gulf Homes Ltd., O.J. No. 85 and Westlake v. Granby Steel Tanks et al [2006] ONCA O.J. 2629 In accordance with the dicta set out in these cases, I am awarding each of the plaintiffs $10,000 for general damages.

[202] In summary, I am awarding the plaintiffs the following damages:

a) Loss of profits…2012 – 2015……………..……....$266,241.00

b) Professional services (Mr. Coggins) ………….………$5,353.94

c) Professional services (Ms. LeBlanc) …………….…….$953.00

d) General Damages for Chris Forde……….….……… $10,000.00

e) General Damages for Robin Carson………..………. $10,000.00

Total $292,547.94

[203] The plaintiffs are entitled to prejudgment interest on their general damages and on damages for economic loss where applicable, in accordance with the Courts of Justice Act.

COSTS

[204] If parties cannot resolve the issue of costs they can make written submissions and file them with the court. Such submissions are to be submitted within 20 days, and are not to exceed 5 pages, exclusive of any attachments or schedules. Parties have 15 days following receipt of each other’s submissions to file responses thereto.

E.J. Koke, SCJ

Released: March 22, 2016

CITATION: Carson v. Kearney, 2016 ONSC 1940

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Robin Carson and Chris Forde

Plaintiffs

– and –

The Corporation of the Town of Kearney

Defendant

REASONS FOR DECISION

E.J. KOKE, SCJ

Released: March 22, 2016