Court File and Parties
COURT FILE NO.: CV-16-547558 DATE: 20161003 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Luke James Williamson and Steve Williamson, Applicants AND: The Corporation of the City of Toronto and Ann Borooah in her capacity as Chief Building Official of the City of Toronto, Respondents
BEFORE: S.F. Dunphy, J.
COUNSEL: Robert G. Doumani and Laura Dean, for the Applicants T. Carre for the Respondents
HEARD: September 23, 2016
Endorsement
[1] The applicants obtained a building permit to build a four-bedroom family home in North York in area zoned “single family residential”. Instead, they built and began to operate a 21 room hotel – a use not authorized by the zoning By-law. The hotel they built had a similar exterior footprint to the building authorized by the permit issued but had an interior layout completely different from the one represented in the architect’s plans filed with the original permit. The construction was thus quite unauthorized and unlawful. When ordered to cease operations and apply for a new building permit, the applicants simply filed a new application for the as-built building, re-labelling the former hotel as a “single family dwelling” without proposing any interior changes. The applicants seek to compel the City to issue the owner with a building permit for the previously unauthorized building based upon the new label given to it.
[2] This case considers whether the City is bound by the label the owner chooses to apply in considering whether the intended future use of a building is in accordance with applicable law or whether the City may look to all of the surrounding circumstances.
[3] I am dismissing this application. The City is not required to close its eyes to the evidence and blindly accept the label applied to a building by the owner. The Chief Building Officer was entitled and indeed required to consider whether the intended use of the building for which a permit was sought complied with applicable law and in doing so was entitled to examine all of the relevant evidence including design and layout. The CBO was also entitled to examine the use to which the building was put immediately before the permit application was made where there have been no intervening design changes. The conclusion of the CBO that the intended use of the building was not authorized by law was reasonable based on the evidence and is entitled to deference. It was also entirely correct. I shall expand upon my reasons below.
Procedural and Factual Background
[4] This is an appeal brought to Superior Court pursuant to s. 25 of the Building Code Act, 1992, S.O. 1992, c. 23 of the decision of the CBO [1] to decline to issue a building permit in accordance with the application made by the applicant owner Mr. Luke Williamson. As shall be seen below, the application for a building permit was rejected because the CBO concluded that the building would contravene applicable law being the zoning by-laws governing intended use of the building.
[5] This case has a number of somewhat unusual features. Foremost among them is the fact that the applicant filed absolutely no evidence. More correctly, the evidence filed by the applicants has been withdrawn and all parties agree that no reference shall be made to it. I make none and have not reviewed it.
[6] As a result of the withdrawal of the applicants’ evidence, the application proceeded based solely upon the sworn evidence tendered by the respondents. The evidence of the respondents is thus entirely uncontradicted. Having reviewed it carefully, I have no hesitation in accepting it although I am of course not bound by opinions of law expressed in such evidence.
[7] A second unusual feature was the case history. It must be said that it is never a good idea to commence construction without obtaining the necessary building permits, however frustrated and justified the land owner may feel. I agree with the applicants that the mere fact of a prior history of ignoring and indeed breaching the law is not sufficient cause to decline a permit. The application was entitled to be considered on its own merits. The present case however appears unique to me in the flagrancy and persistence of the campaign of disobedience waged. That being said, I find that the history is of some relevance both in terms of the bona fides that can be attributed to the re-labelling of the building and because the permit application seeks approval for an already-built building that the permit does not propose to alter. As such, the actual use of the building can be compared to its alleged intended future use.
[8] The property in question is located at 2270 Victoria Park Avenue in North York. A permit was originally applied for to build a two-story single family dwelling in June 2011. The permit was not issued at that time as it was found that the proposed height and length of the building needed a minor variance approval from the Committee of Adjustments. The applicants were advised of this requirement on October 20, 2011.
[9] By that time, work had already been commenced despite the lack of a permit and the City had received complaints from neighbours. An Order to Comply was issued pursuant to s. 8(1) of the Building Code Act, on October 13, 2011 with no apparent effect. This was followed by a Stop Work Order on October 27, 2011 that was similarly not complied with.
[10] The refusal of the applicants to comply with these orders necessitated the first of several trips to Superior Court by City officials to secure compliance. On June 4, 2012, Stinson J. ordered the demolition of the structure already built on the property. However, he stayed his order for a time to allow the applicants an opportunity to take all required steps to obtain a building permit.
[11] The applicants proceeded to make the required Committee of Adjustments application. This application was refused but the applicants were later successful on their appeal to the Ontario Municipal Board. An order of the OMB dated January 24, 2013 granted the applicants their requested minor variance clearing the way for a building permit to be processed.
[12] The approval of the OMB was for “a 645 square metres, two-story, residential dwelling with four bedrooms and cathedral-like ceilings”. It is clear from the decision of the OMB that the exterior of the building at least was complete at the time of the hearing of the appeal. It is unclear from the evidence what interior work had been completed at that point.
[13] The applicants thereafter proceeded to make an application for a building permit. The application included a “Declaration of Use” on behalf of the owner dated May 30, 2013 that the “proposed use of the building as indicated on the permit application noted above is solely for the purposes of the following use(s): Residential Single Family Dwelling and that at the completion of the work, this building will continue to be used for same”.
[14] The drawings submitted with the application were for a four bedroom, two-story single family dwelling apparently similar to the one described by the OMB in its decision.
[15] A building permit was issued on June 24, 2013 in accordance with this application.
[16] Shortly thereafter, City building officials attempted to carry out physical inspections of the property. In the usual course, such inspections would be carried out as each stage of the construction was completed before further stages of construction covered up sections needing inspection. No permit having been issued for the construction built to date, no inspections of the earlier stages had taken place either. The City made multiple attempts to contact the owner and gain access to the building without success. During the course of those various calls, the owner indicated that certain changes had been made to the plans and undertook to file a revised application. No such revised application was made.
[17] Access to the premises for the purposes of inspection having been denied, the City finally took the step of obtaining a Search Warrant under s. 21 of the Building Code Act and conducted an inspection with the assistance of Toronto Police Services on June 16, 2014.
[18] The photographs taken at the time of this inspection revealed what appeared to be a substantially complete and mostly-furnished hotel. Multiple suites were laid out along a central corridor with modular furniture installed in each suite and a central reception area. Whatever its intended purpose, the interior of the building was at all events substantially different from the interior layout of the building as represented in the drawings that formed the basis of the June 24, 2013 building permit to say nothing of the application for a minor variance before the OMB.
[19] The City issued a further Order to Comply requiring the removal of the walls and plumbing that had been installed but not authorized by the issued permits. This Order to Comply was not complied with any more diligence than the first.
[20] In April 2015 various Orders to Uncover were issued in order to give inspectors access to areas of completed construction such as foundation, footings and drainage that had not been able to be inspected to that point. In the course of posting the Orders to Uncover, City officials discovered the doors open. Upon entering, they discovered a hotel-style lobby area with reception desk. Rooms had suite numbers on them with hotel-style swipe card locks. Mr. Murray, the City official who was present, formed the not-surprising opinion that “it was likely that the premises was not intended to be used as a single-family dwelling”.
[21] The Fire Marshall became involved due to the perceived change in use. Mr. Murray was able to inspect the facility again in July 2015 and discovered that the attic area had been insulated throughout and framed-in for a possible expansion to include more rooms on the third floor (although authorized for attic space only). The evidence confirms that the property was then in use as a hotel/international student boarding facility.
[22] Once again, the City found itself compelled to seek relief in Superior Court. On October 6, 2015, C.J. Brown J. issued an order prohibiting occupation of the building for any use until such time as the required inspections had been completed and passed and all outstanding orders complied with. Justice Brown’s order was originally intended to be on an interim basis only until a return of the motion on November 12, 2015. However, by order of Mew J. the order was instead continued until further order. It remains in force at this time.
Current Building Permit Application
[23] It was with this background that the applicants filed their current application for a building permit on November 18, 2015. The revised application differed from the 2013 permit in the internal layout. It seeks approval for the as-built, 21-bedroom building rather than the 4-bedroom single family dwelling originally proposed and approved. No changes to the layout of the as-built building have been proposed.
[24] The application for a building permit was reviewed by Mr. Crawford as designate of the CBO and ultimately rejected with the issuance of an Examiner’s Notice dated June 10, 2016. It is from this decision that the applicants appeal pursuant to s. 25 of the Building Code Act. By agreement between the parties, this appeal proceeded on the record rather than as a hearing de novo.
Issues to be Argued
[25] What is the standard of review?
[26] Does the building contravene the North York or Toronto zoning By-laws?
[27] Is the prior history of the applicants relevant?
Discussion and Analysis
(a) What is the Standard of Review?
[28] The parties had no disagreement in principle with the standard of review to be applied generally, but disagreed about where on the spectrum between legal determination and factual determination the decision appealed from actually lies.
[29] The more the decision of the CBO being appealed from can properly be characterized as based upon a determination of law, the closer the standard will be to correctness whereas the more the decision is dependent upon a factual determination within the particular expertise of the relevant official, the more deference must be afforded and the standard will be one of reasonableness: 2161907 Ontario Inc. v. St. Catherines (City), 2010 ONSC 4548 at para. 12; Berjawi v. Ottawa (City), 2011 ONSC 236 at para. 12.
[30] As might be expected, the applicants submit that the CBO’s decision is a legal one that must be correct; the respondents submit that it is a determination of a mixed question of fact and law within the specialized expertise of the CBO and the reasonableness standard is to be applied.
[31] On the facts of this case, the distinction between the two positions makes little practical difference given my finding that the decision was both correct and reasonable. However, I find that the decision of the CBO was a matter of mixed fact and law in an area of the specialized expertise of such official. Section 8(2)(a) of the Building Code Act requires the CBO to issue the permit unless the proposed building will contravene applicable law. Applicable law in this case includes zoning by-laws prohibiting the use of land except for permitted purposes: O. Reg. 332/12 under the Building Code Act s. 1.4.1.3(1)(f) and s. 34(1)1 of the Planning Act, R.S.O. 1990, s. P.13. The applicable zoning by-laws include North York Zoning By-law 7625 that authorizes “one-family detached dwellings” a term defined to mean a building “occupied or intended to be occupied…” thereby requiring the CBO to consider both the actual use and the intended use in order to make a determination of conformity of the building with applicable law. That determination, in my view, is a matter of mixed fact and law and lies well within the sphere of expertise of the CBO in view of the nature of the evidence to be considered. The decision of the CBO is accordingly entitled to deference and ought to be reviewed with the standard of reasonableness.
(b) Does the Building Contravene the North York or Toronto Zoning By-laws?
[32] There are two applicable zoning by-laws to consider in this case as a result of the amalgamation of the former municipalities of Metropolitan Toronto. North York Zoning By-law 7625 continues to apply, Zoning Map Sheet 20 of which designates the area as “One-Family Detached Dwelling Fourth Density Zone” or “R4” for short. The North York By-law is intended to be superceded by a comprehensive City-wide By-law enacted in 2013. That new City-wide By-law is the object of a number of appeals and challenges. If the appeals are disposed of, the new City by-law will apply retroactively.
[33] Without digressing into a review of the pending appeals, it is sufficient for me find that the CBO was required to consider both the North York By-law and the new comprehensive City-wide By-law in considering whether the “proposed building…will contravene … any other applicable law” pursuant to s. 8(2) of the Building Code Act and to reject the application for a permit should it be determined that the building contravenes either the North York By-law or the City-wide By-law.
North York By-law
[34] The North York By-law defines “One Family Detached Dwelling” by reference to the definition of “Single Family Dwelling” in turn defined as “a building occupied or intended to be occupied by one single family alone…”.
[35] “Family” is defined as “one or more human beings related by blood or marriage, or common law relationship, or a group of human beings who need not be related by blood or marriage, living together in a single dwelling unit. ‘Family’ also includes paid domestic servants or not more than three foster children under the care of a children’s aid society approved by the provincial government. ‘Common law relationship’ means two people living together as a family without being married” (emphasis added).
[36] The applicants submit that the italicized portion of the definition of “family” above has the effect of including in the definition any number of human beings who happen to find themselves in a single building without any qualitative consideration of what relationship if any binds them together as a “family”. I reject that submission.
[37] Legislators have struggled and continue to struggle with defining the concept of “family” in a manner that is consistent with an evolving social consensus that seeks greater inclusion of diverse expressions of individual choice. However, the interpretation suggested by the applicant would utterly strip the word of any meaning at all. The fact that the concept being described may lack precise edges does not mean that it has none at all. 53,000 people attending a Blue Jays game at the Skydome may be a “family” in a very loose, colloquial sense but are not a “family” within the meaning of the North York By-law.
[38] The By-law contains a number of instances of the sort of family groupings that are considered to be “family” and the ejusdem generis principle of construction can be resorted to in construing “a group of human beings who need not be related by blood or marriage”. That group may not require a blood or marriage relationship to fit within the definition. However, some relationship must nevertheless exist. That relationship must be assessed having regard to the surrounding classifications (blood, marriage, common law relationship, foster children or domestic servants). The categories of relationship that may constitute a “family” is not closed, but the requirement of finding a relationship of some sort remains.
City-wide By-law
[39] The applicable City of Toronto zoning By-law permits a “Dwelling Unit” of a permissible residential building type in the relevant (RD) zone. Detached House is the relevant permissible building type. The definition of “Detached House” means a building “that has one dwelling unit occupying the entire building” (emphasis added). “Dwelling Unit” is defined to mean “living accommodation for a person or persons living together as a single housekeeping unit, in which both food preparation and sanitary facilities are provided for the exclusive use of the occupants of the unit” (emphasis added).
[40] The City of Toronto definition thus discards any attempt to define “family” per se, preferring instead to attempt to describe a relationship of “living together as a single housekeeping unit”. Single housekeeping unit avoids the value-laden concept of family but nevertheless continues to be characterized by a relationship that is quite opposite from the loose links binding strangers who happen to find themselves under the same roof.
[41] It is conceded by the respondents that nothing in either By-law explicitly limits the number of bedrooms that may be contained in a “dwelling unit” or “one family detached dwelling” as the case may be nor does either By-laws contain limitations in terms of locks on doors or number of en suite bathrooms.
CBO Decision
[42] The CBO’s review of the layout of the building led him to conclude that “by virtue of the design and as-built layout and construction of the property, the applicants [do] not intend to use the building constructed for a use consistent with the Single Family Dwelling” under the North York By-law. He concluded that the actual intended use of the property is more consistent with the definition of a hotel or multi-family dwelling under the North York By-law.
[43] When considering the City By-law definitions, Mr. Crawford concluded that “the building is designed and constructed in a manner that creates isolated living suites and without the ability of the occupants to move throughout the property. The arrangement and layout of the property is simply not compatible with a group of individuals living together in a “single housekeeping unit” as contemplated by the City-wide By-law”.
[44] In my view, there was ample evidence to justify the conclusions reached that the design and layout of the building indicate an intended use inconsistent with both applicable zoning By-laws.
[45] The layout of the interior of the indicates twenty-one bedrooms located in the basement, main floor and second floor. The bedrooms are laid out as self-contained suites on both sides of a long corridor. The suites have doors with numbers on them, are secured with magnetic strip locks and are furnished with modular furniture, mini-fridges and televisions in exactly the fashion one would expect of the sort of hotel that was in fact operating there prior to the order of C.J. Brown J. The ground floor has a “vestibule” of a size and layout similar to a hotel lobby, a “dining room” that is of a size and layout of a hotel breakfast buffet room. This layout is manifestly not consistent with the occupants of such a building “living together as a single housekeeping unit” or being considered a single “family” under any definition of the word that is premised on a relationship beyond that of strangers living independently of each other as in a hotel.
[46] I find that the layout and interior construction of the building is very strongly suggestive of an intended use as a hotel or similar operation and is not suggestive of an intention to utilize the building for a single family dwelling as represented on the building permit application of the applicants. As Mr. Crawford noted, the layout creates a series of self-contained living suites rather than a single integrated living space. This conclusion can readily be reached by reference to the drawings and photographs taken during the inspections alone without any reference to the prior history of the building. The conclusion is of course strongly reinforced by a consideration of the recent history of the building since of course it was in fact operating as a hotel and international student boarding facility until C. J. Brown issued her order.
[47] Is it possible that there is a bona fide intention to find a “family” or “single housekeeping unit” that might find the layout of this building amenable to their needs? It is certainly possible to conjure such a hypothetical group in the imagination. However, the CBO is not required to assume the fantastic or unlikely. If the applicants had any actual evidence to rebut the natural inferences to be drawn from the layout of this building, they have kept it to themselves. The CBO was entitled to make reasonable inferences of intended use from the layout presented by the applicants and the conclusions reached by the CBO were entirely consistent with that evidence and not rebutted by any other evidence of the applicants.
[48] The applicants submit that since there is no maximum number of bedrooms permitted in single family dwelling, twenty-one individually locked bedrooms with en suite bathrooms disposed on either side of a central corridor should be accepted as a single family dwelling if they say it is. I disagree. The layout of this particular building leads to the natural inference that its intended use is that of a hotel and not a single family dwelling. The applicants have submitted no sworn evidence of any kind to rebut this inference. The CBO is not required to check common sense at the door when reporting for duty.
[49] The CBO was required to consider the intended use of the building in order to ascertain whether it complies with applicable law. The mere fact that the application itself labels the building as “SFD” (an acronym for single family dwelling) is not dispositive of matters. The CBO reached a reasonable and, in my view, correct conclusion of the intended future use of the building from the available evidence of its design and layout. The applicants have tendered no evidence from which it might concluded that any other conclusion could sensibly have been reached.
(c) Is the Prior History of the Applicants Relevant?
[50] The applicants took strong exception to the CBO having relied on their unquestioned prior history of violations of the law. While I agree that the prior history of breaching the law by itself is not a basis to reject this particular application, it was reasonable to view the application for a building permit in the context of the fact that it was made not for a “proposed building” but one that was already complete. Two elements of the history of this building that the applicants proposed to leave untouched were clearly germane to a consideration of its intended use and the applicants tendered no evidence to rebut the inferences naturally arising from such evidence.
[51] Firstly, the initial building permit application from 2013 contained a declaration of intended use of the building that proved to be untrue. That history provided the CBO with a reasonable basis for declining to attach credibility to an unsworn declaration of an agent as to the intended future use of the building as part of the application for a permit. The owner offered no evidence to explain the prior declaration – was there a change in circumstance or was it dishonestly made? The onus to explain was on the applicants and they offered no evidence at all.
[52] Secondly, there was cogent evidence of the intended use of the building that could be drawn from the actual use made of it given that the permit application proposed to make no changes to it at all. It would strain credulity and common sense to suggest that the respondents were obliged to overlook such obviously credible evidence. The applicants tendered no evidence to rebut the obvious inference that such history gives rise to.
Disposition
[53] I am dismissing this application with costs.
[54] The parties have agreed that the successful party would be awarded costs and they have agreed that these should fixed at $8,000 all inclusive. I am accordingly awarding the respondents costs in that amount payable by the applicants.
S. F. Dunphy, J.
Date: October 3, 2016