Court File and Parties

COURT FILE NO.: 14-CV-502896 DATE: 20160714 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CITY OF TORONTO and ANN BOROOAH, CHIEF BUILDING OFFICIAL For CITY OF TORONTO Applicants – and – NIKOLAOS LAMBRINOS and 1187310 ONTARIO LIMITED Respondents

Counsel: Naomi Brown and Kitto Lau, for the Applicants Nick Lambrinos and Lisa Lambrinos, Self-Represented

HEARD: April 25, 2016

S.A.Q. Akhtar J.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] This is an application by the City of Toronto (“the City”) made pursuant to s. 38 of the Building Code Act, 1992, S.O. 1992 c. 23 (“the BCA”) for the removal of construction, alleged to have been completed without approval, at two residential properties located at 102 and 104 Ulster Street in the City of Toronto (“the Properties”). The Properties are individually owned by the respondents.

[2] A review of the factual background of this case reveals a tortured history of continuous, flagrant violations of by-laws, regulations and orders. For the reasons set out below, the City’s application must be granted.

The Work Completed at 102 Ulster Street

[3] The dispute between the parties with respect to this property began in 1998 when it was discovered that the respondents had contravened applicable zoning by-laws and the Ontario Building Code, O. Reg. 332/12 (“OBC”) as a result of work performed at 102 Ulster Street. The respondents had altered a dormer on the front of the third floor of the house and added a dormer on the rear of the third floor without approval. The respondents subsequently applied for a building permit to comply with OBC and zoning requirements. Their application confirmed that the property was to be used as a semi-detached house in accordance with the governing zoning by-law which mandated that semi-detached houses could only be used as single-family dwellings. A permit was issued.

[4] Subsequent inspections, however, revealed that the work completed was not authorised by the permit obtained by the respondents: the construction included a rear basement addition, a front basement entrance, concrete block foundation walls for front entrance steps and three self-contained dwelling units. The City, pursuant to the BCA, issued Orders to Comply requesting the respondents to obtain permits for the unauthorised construction or, alternatively, to dismantle and remove it.

[5] Those orders went unheeded as the respondents continued to proceed with further unauthorised construction at 102 Ulster Street, adding a concrete block and stone addition, a rear second floor addition with a roof, and a third floor wood framed addition.

[6] On July 17, 2001 and July 27, 2001, the City issued Stop Work Orders pursuant to s. 14 of the BCA. The respondents assured the City that they would take steps to redress the unauthorised construction. Upon inspecting the property on May 15, 2003, however, the City discovered that no remedial steps had been taken and the proscribed construction remained in place.

The Work Completed at 104 Ulster Street

[7] In 1995, the City discovered that a two-storey wooden frame addition had been erected at the rear of the property without obtaining a permit. An Order to Comply was issued directing the respondents to either obtain a permit or remove the construction within 30 days. On August 12, 1996, the City discovered that not only had these orders been ignored but further unsanctioned construction consisting of a third storey wood frame dormer had taken place. The City issued Stop Work Orders in 1996, 2000 and 2001. All were ignored by the respondents. From 2002 to 2013, the City continued to attempt to enforce its orders without success.

[8] The respondents remained unfazed and, despite the previously issued orders, continued to build on the Properties without seeking approval. On 15 April 2013, the City confirmed the absence of any corrective measures and discovered that further extensive building work had been completed without approval. Further Orders to Comply dated 21 June 2013 and 17 September 2013 were issued, once again to no avail. The respondents, save for the removal of a wood frame shed at 104 Ulster Street, had failed to obtain permits for any of the unapproved construction and had not removed any of the construction specified in the City’s orders. On 19 December 2013, a City inspection revealed that a roof structure had been added to the third floor of the property.

[9] On October 7, 2013, the City wrote to the respondents warning that a failure to comply with the many previous Orders to Comply issued by the City would result in an application to the courts pursuant to s. 38 of the BCA.

The Preliminary Project Review

[10] Now facing the prospect of litigation, the respondents finally appeared to acknowledge the nature of their activities and the potential sanctions resulting from a court order.

[11] Accordingly, the respondents applied for a Preliminary Project Review showing the current state of the Properties. The application disclosed 28 zoning by-law violations and made clear that the Properties were no longer a single family dwelling unit but became multiple units. A City investigation found that the Properties now consisted of twelve self-contained dwelling units, most of which were occupied by tenants.

[12] These changes had been made in violation of OBC provisions prescribing minimum life, fire, and occupational safety standards applicable to multiple dwelling units. The inspectors described the Properties as the worst “fire traps” they had seen and declared them inherently unsafe. On March 31, 2014, the City issued orders, pursuant to s. 15.9 of the BCA, decreeing the end of the use of the Properties as multiple units by April 2, 2014. Perhaps unsurprisingly, this order was also ignored by the respondents.

[13] On 3 April 2014, the City issued new orders prohibiting use or occupancy of the Properties pursuant to s. 15.9(6)(a) of the BCA. The effect of the order was that existing tenants were forced to vacate their homes. The City’s intention to facilitate relocation of those tenants was frustrated by the respondents’ removal of the orders posted on-site. Moreover, the respondents informed their tenants that relocation was unnecessary and, remarkably, continued to advertise the availability of the units for future lease.

[14] Despite these violations, the City sought to resolve the situation by entering into a Memorandum of Understanding/Agreement outlining the respondents’ obligations and commitments to comply with previous orders. The goal was to ensure that the Properties would be redesigned to conform with the prevailing by-laws and regulations.

[15] These attempts went nowhere. Despite employing a designer to assist with the conversion of the Properties to single family use, the respondents failed to submit any planning applications. To add insult to injury, a City inspection on 9 October 2014 revealed that the Properties had once again been leased out to multiple tenants, living separately, in distinct units. This constituted a clear breach of the Memorandum of Understanding/Agreement and blatant disregard of the known safety risks.

[16] On 10 October 2014, the City sent a letter to the respondents notifying them of the breach of the Agreement. On 21 November 2014, the City re-inspected the properties to find that the doors to Units 102 and 104 had been removed so that the ground floor kitchen area could be accessed by both units.

[17] Even after applying to this court, the City sought to resolve the issues without the need for a court order by seeking terms with the respondents and their newly retained counsel. Those attempts were unsuccessful and the City asks this court to make a disposition of its application.

THE STATUTORY AUTHORITY

The Building Code Act

[18] The statutory scheme for the construction of new buildings or additions to buildings is set out in s. 8 of the BCA, reproduced as follows:

Building permits

8. (1) No person shall construct or demolish a building or cause a building to be constructed or demolished unless a permit has been issued therefor by the chief building official.

Application for permit

(1.1) An application for a permit to construct or demolish a building may be made by a person specified by regulation and the prescribed form or the form approved by the Minister must be used and be accompanied by the documents and information specified by regulation.

Section 10 of the BCA governs the change of use of a building:

10. (1) Even though no construction is proposed, no person shall change the use of a building or part of a building or permit the use to be changed if the change would result in an increase in hazard, as determined in accordance with the building code, unless a permit has been issued by the chief building official.

Permit

(2) The chief building official shall issue a permit under subsection (1), unless,

(a) the building if used as proposed would result in a contravention of this Act or the building code or any other applicable law;

(b) the application for it is incomplete; or

(c) any fees due are unpaid.

The City applies under section 38(1) of the BCA, which provides for sanctions in the event of non-compliance and which reads as follows:

38. (1) Where it appears to a chief building official that a person does not comply with this Act, the regulations or an order made under this Act, despite the imposition of any penalty in respect of the non-compliance and in addition to any other rights he or she may have, the chief building official may apply to the Superior Court of Justice for an order directing that person to comply with the provision.

(2) Upon the application under subsection (1), the judge may make the order or such other order as the judge thinks fit.

SHOULD THE CITY’S APPLICATION BE GRANTED?

The OBC Violations

[19] As noted, s. 8 of the BCA allows construction only on the basis of the issuance of permits based on the plans submitted by an applicant. Section 10 prohibits any changes in use to a building that would result in an increase in safety concerns unless that change was authorised by a permit.

[20] On 3 July 1998, the City issued a permit allowing the respondents to add dormer additions at the third floor level to the front and back of the property; a basement entrance; and a detached garage.

[21] The City insists that this was the only permit issued with respect to the Properties. They further argue that in the intervening years, as described above, the respondents have continued to make impermissible additions without further approval. This fact alone, argues the City, is sufficient ground for granting the order.

[22] If that were not enough reason to grant the order, the City points out that the additions violate a multitude of zoning laws. These violations eliminate any possibility of a retrospective approval by the City of the unauthorised work.

[23] The City’s arguments are overwhelmingly supported by the evidence. The Application Record before this court contains a number of photographs illustrating all of the many visible violations of the Code. The Supplementary Record contains a summary prepared by Andrew Wild, a Manager of Inspections employed by the City, outlining in detail the violations at each level.

[24] In my view, this would be sufficient to permit the granting of the order. However, a further affidavit prepared by Joseph Fisco, another Inspections Manager, also provides details of a fire that occurred at 104 Ulster Street on 16 March 2015. In response, the City issued an Unsafe Order resulting in a report from Jeff Martin of T. Smith Engineering who identified the damage to the property and outlined a series of recommended remedies. In order to repair the damage caused by the fire, shoring was necessary to correct the structural defects. It became clear that the respondents’ violations of the OBC had created dangerous structural defects not visible to the naked eye.

[25] These “hidden” defects once again confirm that retrospective approval of the respondents’ alterations would be unable to rectify matters and that the City should be entitled to remove the illicit construction.

The Zoning By-Law Violations

[26] The respondents’ disregard for the obtaining of permits did not end there. The last approved use of each building was to be as a single unit semi-detached house. The City of Toronto zoning by-law defines a semi-detached house as “a building that has two dwelling units, and no dwelling unit is entirely or partially above another.” The by-law definition of a “dwelling unit” is that of a “single housekeeping unit”.

[27] The respondents, however, converted each of the two buildings into six dwelling units with the result that twelve units had been built. This action contravened s. 10 of the BCA as no permit had been sought prior to the changes. As I have already stated, the s. 8 BCA violations, standing alone, would be sufficient to permit the granting of the order sought. The fact that the respondents also saw fit to ignore s. 10 of the Act reflects their increasing disdain for the law and adds further weight to the City’s already compelling arguments.

[28] This case is not dissimilar to Dysart (Municipality) v. Haliburton Forest & Wild Life Reserve Ltd., 2016 ONSC 956, where extensive construction took place in the absence of any applications for building permits. In granting a mandatory demolition order of the newly constructed property, DiTomaso J. explained, at para. 68, that:

The Chief Building Official is entitled to a mandatory order requiring a demolition of these subject structures and additions. I agree with the position of the Chief Building Official that the failure and refusal of the Respondents to obtain Building Permits for these structures is a flagrant and unjustified violation of the Ontario Building Code Act. I accept the evidence of Mr. Sayers that this major construction has rendered it impossible for the Chief Building Official to now assess much of the construction and carry out his responsibilities for inspection under both the Act and the Code.

The Respondents’ Arguments

[29] The respondents say they never received the City’s Orders to Comply. However, their materials reveal a very different story. In his affidavit dated 27 November 2014, Mr. Lambrinos, at para. 10, says that he received the 2000 Order to Comply and the 2001 Stop Work Order, and sent them to his lawyer, Mr. Grammatikos. However, in his later affidavit dated 16 February 2016, Lambrinos denies the receipt of any orders.

[30] These inconsistencies, whilst telling of the respondents’ credibility, amount to very little: it was incumbent on the respondents to apply for permits prior to commencing the work rather than wait for Orders to Comply after the work had been completed. For the same reason, I take nothing from the length of time it took the City to act upon the failure of the respondents to comply with its orders: it was the respondents’ onus to comply with the law rather than the City’s onus to enforce the failure to do so. Nor could it be said that the City was guilty of doing nothing: the history of the case set out in preceding paragraphs describes the many orders issued by the City and ignored by the respondents.

[31] Nor do I accept the respondent’s submissions that the City’s failure to pursue its original 2003 court application caused him prejudice. I repeat my observation that the violations standing alone entitle the City to the order sought under s. 38 of the BCA.

[32] Similarly, I disbelieve the respondents’ assertions that they were unaware of the orders because their lawyer had passed away. The evidence before the court includes Affidavits of Service showing that the City attempted to reach Mr. Lambrinos by phone but was met with a refusal to accept service. A later Affidavit of Service confirming that “a person who identified himself in care and control” had accepted service reveals that Mr. Lambrinos did actually know of the application. The City’s affidavit appears to explain that the 2003 application was not pursued because of Mr. Lambrino’s assurances that he would apply for a permit to ensure that the Properties complied with the BCA.

[33] I also reject Mr. Lambrinos’ assertion that he hired the late Mr. Grammatikos to acquire the required permits. The only evidence of a permit being properly obtained and issued relates to the 1998 permit which was sought by Mr. Lambrinos, not Mr. Grammatikos.

[34] Moreover, the respondents’ claim that no further construction was commenced after 2003 is belied by the City’s photographic evidence providing a comparison of the buildings in 2003 and 2013/14. No one, looking at these pictures, could seriously dispute a dramatic difference in the appearance of the Properties.

[35] I also disbelieve the respondents’ account that permits were actually issued by the City. According to the respondent, his copies of the permits were burnt in the March 2015 fire. Even if that were the case, one would expect a significant paper trail of documentation recording the various stages of approval – however, none exists.

[36] Nonetheless, Mr. Lambrinos maintains that he showed a copy of a permit authorising the work done to Mario Angelucci, the City’s Director and Deputy Chief Building Official. The City does not dispute that a meeting took place but denies the assertion that a legitimate permit was produced. Angelucci’s affidavit makes clear that the document shown to him was not a permit but a fraud. That document has not been produced to the court and I find that no permit was issued. It would make little sense for the City to provide permits authorising work that would violate its own zoning by-laws.

[37] Notwithstanding my rejection of the respondents’ arguments, I repeat my earlier observation that the BCA violations, per se, entitle the City to the order it seeks.

ORDER

[38] The City’s application is granted and the following Order shall issue:

(1) The respondents, their servants, employees, contractors, agents, successors and/or assigns, within 60 days of the date of this order, shall remove all construction that has been unlawfully carried out either without the benefit of a building permit or not in accordance with issued building permits at the properties known municipally as 102 and 104 Ulster Street (hereinafter referred to as “the Properties”) in the City of Toronto;

(2) The respondents, their servants, employees, contractors, agents, successors and/or assigns, shall comply with the Orders Prohibiting Use or Occupancy issued by the City of Toronto (hereinafter referred to as “the City”) on 3 April 2014 and immediately cease leasing the units in the buildings at the Properties to tenants or taking any steps to have said units occupied;

(3) If the respondents fail to comply with paragraph (1) of this Order, the City, their servants, employees, contractors and agents are authorised to enter onto the Properties and into the buildings at the Properties to remove all unauthorised construction at the Properties and further revert the use of the buildings at the Properties to that of a single family semi-detached dwelling unit;

(4) The respondents, their servants, employees, contractors, agents, successors and/or assigns shall be prohibited from using or permitting the use of the Properties for any use other than that of a single family semi-detached dwelling unit unless and until such time as the necessary approvals and permits are obtained from the City;

(5) The Properties shall not be occupied other than as a single family semi-detached dwelling unless and until such time as the necessary approvals and permits are obtained from the City authorising a different use for the Properties;

(6) The Sheriff of Toronto and the Toronto Police Service are authorised to assist the City and their servants, employees, contractors and agents in carrying out the provisions of this order;

(7) If the respondents, their servants, employees, contractors, agents, successors and/or assigns, fail to comply with paragraphs (4) and/or (5) of this Order, the Sheriff of Toronto and the Toronto Police Service shall be permitted to assist the City and their servants, employees, contractors and agents in removing tenants from the buildings at the Properties thereby enforcing the City’s Order Prohibiting Use or Occupancy issued 3 April 2014;

(8) The Clerk of the City of Toronto is permitted to add the costs of carrying out the provisions of paragraphs (3), (6) and (7) to the Collectors’ Role for the Properties to be collected in the same manner and with the same priorities as municipal Realty taxes;

(9) The City is authorized to register the Judgment on title to the Properties in the Ontario Land Registry Office, and the judgment shall remain on title until such time as the work described in paragraph (1) has been completed to the City’s satisfaction.

COSTS

[39] If the parties cannot agree on costs, I invite the respondents to submit a written application for costs no longer than 5 pages within 15 days of these reasons. The City is to file written submissions of the same length within a further 15 days.

S.A.Q. Akhtar J.

Released: 14 July 2016

COURT FILE NO.: 14-CV-502896 DATE: 20160714 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CITY OF TORONTO and ANN BOROOAH, CHIEF BUILDING OFFICIAL For CITY OF TORONTO Applicants – and – NIKOLAOS LAMBRINOS and 1187310 ONTARIO LIMITED Respondents

REASONS FOR JUDGMENT S.A.Q. Akhtar J.