Kritz v. City of Guelph, 2016 ONSC 6877

CITATION: Kritz v. City of Guelph, 2016 ONSC 6877

COURT FILE NO.: 16-3

DATE: 20161123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

James Kritz

Applicant

– and –

City of Guelph and Bruce Aubrey, Inspector of the City of Guelph

Respondents

Mark Flowers, Kyle Gossen, for the Applicant

Patrick Harrington, for the Respondents

HEARD: October 19, 2016

Justice Lemon

The Issues

1Mr. Kritz brings this application for an order requiring the City of Guelph to rescind an order of the City’s building inspector. That order required Mr. Kritz to obtain a building permit for construction allegedly carried out on his property at 108 Dublin Street N., Guelph.

2Three arguments are raised by Mr. Kritz. In chronological order they are:

a. Mr. Kritz did not own 108 Dublin when the alleged renovations were carried out, and therefore he cannot be compelled to obtain a building permit;

b. The City did not obtain Mr. Kritz’s consent, or the consent of a tenant, to enter 108 Dublin for the purpose of an inspection under the Building Code Act, 1992, S.O. 1992, c. 23 (the “BCA”);

c. The alleged renovations do not constitute “construction” under the BCA, and therefore do not require a building permit.

The Facts

3Substantial materials were filed on this application and cross-examinations were carried out on the affidavits. By the time the matter came to be argued, there was only one credibility issue or factual finding required. I therefore invited counsel to provide an agreed upon statement of facts. They are as set out under my consideration of each of the following issues.

Construction before Mr. Kritz Owned the Property

The Facts

4Prior to the purchase of 108 Dublin in 2000, Mr. Kritz’s solicitor requested that the City provide a compliance report related to work orders and infractions of municipal codes and by-laws in relation to 108 Dublin.

5On July 14, 2000, Mr. Reynen responded to Mr. Kritz’s solicitor and noted the following, among other items, regarding 108 Dublin:

(a) Final plumbing inspections had not yet been completed in relation to various “alterations to plumbing systems” from the 1980s;

(b) A prior property standards order from 1990 had not been complied with; and

(c) “This building contains multiple residential occupancies which are NOT currently permitted by the Zoning By-law and have NOT been inspected to ensure compliance with the Ontario Building Code” (emphasis in original).

6Further, Mr. Reynen enclosed a copy of a letter to a previous owner dated March 31, 1987, which outlined the results of an inspection of 108 Dublin on March 23, 1987. This letter alleged that “considerable” construction had taken place at 108 Dublin (installation of complete finishes in the attic for purposes of residential occupancy and construction of a washroom and kitchen on the ground floor) and requested that it be removed “by June 1, 1987, or legal action will be taken.” No such legal action was ever taken.

7In August 2000, prior to purchasing 108 Dublin, Mr. Kritz requested that a City inspector attend at the property. On the advice of the City inspector, Mr. Kritz:

(a) Removed a partition wall and doorway for an interior room on the third floor; and

(b) Removed a kitchen (a refrigerator, stove, sink, cabinets and counter) on the third floor.

8At the request of Mr. Kritz, a plumbing inspection was also conducted and outstanding plumbing permits were cleared.

Analysis

9Mr. Kritz submits that he is not subject to the Order to Comply because, although he is a co-owner of 108 Dublin, he did not carry out the unlawful construction. The City’s position is that the current owner is responsible for ensuring that 108 Dublin is in compliance with the BCA and the Ontario Building Code, O. Reg. 332/12 (the “OBC”). To hold otherwise would be contrary to public policy and would allow owners to avoid responsibility by simply transferring their buildings.

10Section 12 (2) of the Act stipulates:

(2) An inspector who finds a contravention of this Act or the Building Code may make an order directing compliance with this Act or the Building Code and may require the order to be carried out immediately or within such time as is specified in the order.

11In R. v. 1267017 Ontario Limited (2001), 51 W.C.B. (2d) 171, at para. 21, Lampkin J. said:

Notwithstanding the evidence that the construction appeared to be recent, which I would construe to be within the past year of inspection without actually seeking to define the term "recent", if the building was purchased in its present condition, once the Order to Comply had been served, the Respondent had to make the necessary arrangements to obtain the Building Permit. If it sought to dispute the authority of the Building Inspector to issue the Order, then the provision for settling disputes in the Act must be employed. Failing that, he is deemed to have constructed the building without a building permit.

12As well, Master Muir in Toronto (City) v. Tseng, 2011 ONSC 4594, 87 M.P.L.R. (4th) 220, at para 22, said:

22 The respondent also suggests that this proceeding is an abuse of process because the respondent was not the owner of the property at the time the subject addition was constructed. The respondent argues that the applicants' only remedy is to pursue the Former Owners, presumably with charges under section 36 of the BCA. In my view, this argument is also without merit. Such an interpretation would leave a municipality without the ability to enforce compliance with the BCA, or its zoning and other by-laws, by the simple act of the transfer of a property that has been constructed or renovated in contravention of such laws and regulations. Moreover, the respondent, through her role as agent for the Former Owners, was fully aware of the applicants' position with respect to the Property when she took title from her parents and siblings on January 6, 2011. The relief being sought on this application should come as no surprise to her.

13I find both of those cases persuasive. To find otherwise would mean that one could avoid the requirements of the Act by simply transferring ownership. More importantly, it would mean that the City would be required to attempt to enforce the provisions of the Act on one who had no further interest in the land. That former owner would have to somehow get the new owner to comply. That interpretation would make no sense.

14Here, if the inspector found a contravention of the Act, the order must have to be against the owner. In my view, that is exactly why Mr. Kritz made the enquiries he did before he took possession of the property when he purchased it. Mr. Kritz is bound by the order.

The November 2015 Inspection

The Facts

15In the fall of 2015, in the course of correspondence between Mr. Flowers (a co-owner of the property) and City staff regarding a reference to 108 Dublin as a “lodging house” on the City’s website, City staff alleged Mr. Kritz was required “to obtain permits for construction work that has previously been done”, and that an inspection could be arranged in this regard.

16On November 26, 2015, Mr. Flowers replied to the City’s representative, Mr. Mast, in an e-mail that “we are prepared to consider allowing a City inspector to gain entry into the property for the sole purpose of concluding its investigation in relation to the “possible lodging house” issue and on the express understanding that allowing such inspection would be entirely without prejudice to any claim that we may choose to make against the City”.

17Later that same day, Mr. Mast accepted Mr. Flowers’ “without prejudice” condition. However, Mr. Mast also stated that “[a]lthough the primary purpose of the inspection will be to conclude the investigation into a possible lodging house, please note that City inspectors cannot agree to ignore any other obvious Ontario Building Code, Zoning or Property Standards infractions that may exist as this would be inconsistent with their statutory duties”.

18On November 27, 2015, Mr. Flowers responded by indicating that “our interest at this time is to resolve the issue of the City’s identification of the property as a “possible lodging house”, and it is on that basis that we are prepared to allow entry by the City to carry out the inspection. We have not consented to allow entry for a Building Code inspection”.

19Later that same day, Mr. Mast responded to Mr. Flowers, noting that in addition to the definition of “Lodging House Type 1” in the City’s Zoning By-law, the Ontario Building Code also contains a definition of a “boarding, lodging or rooming house” with associated regulations that would also need to be considered. Mr. Mast stated that if the goal was to allow the City to complete its inspection as quickly as possible, he hoped Mr. Flowers would agree to the inspection that had previously been outlined. Mr. Flowers did not confirm to Mr. Mast that he agreed.

20Approximately two hours after Mr. Mast’s last e-mail to Mr. Flowers, Mr. Kritz advised Mr. Sheehy (Program Manager – Zoning, with the City of Guelph) that he had spoken with the tenants of 108 Dublin, and that some of them had advised that they were prepared to rearrange their schedules, and in some cases miss class, in order to be present for the inspection. Mr. Kritz advised that the tenants were prepared to consent to the inspection “to expedite the closing of [the City’s] file as it affects the validity of their use of 108 Dublin as a single house-keeping unit”.

21In response, Mr. Sheehy confirmed that City Zoning Inspectors Bond and Aubrey would be attending at 108 Dublin at the appointed time for the inspection. Mr. Sheehy confirmed that Messrs, Bond and Aubrey are cross-trained in the Ontario Building Code “and if there are any immediate concerns, they will be identified and followed up as required”. Mr. Sheehy also advised that the City’s Building Services department maintains that the inspection in no way resolves the outstanding Ontario Building Code matters at 108 Dublin. The inspection would only partially allow the City to complete its investigation – a future review of all information by a building inspector will be required to complete the investigation, which might include a follow up inspection.

22In response, Mr. Kritz thanked Mr. Sheehy for confirming the inspection.

23The inspection took place on November 30, 2015. Prior to entering the dwelling, the City’s inspectors met with Mr. Kritz on the sidewalk in front of 108 Dublin.

24After their meeting on the sidewalk, the inspectors attended at the door to 108 Dublin where they met with an occupant/tenant. Mr. Bond says that he advised the occupant/tenant that the inspectors were seeking entry for purposes of an inspection for compliance with the City’s Zoning By-law. (There is disagreement between the City and Mr. Kritz as to whether Mr. Bond also advised the occupant/tenant that an inspection was being carried out for the purposes of the Ontario Building Code.) Mr. Bond advised the occupant/tenant of the right to refuse entry. The occupant/tenant consented to the inspectors’ entry.

25Once inside, the inspectors encountered other occupants/tenants, none of whom objected to any portion of the inspection. The inspectors were given full access to the entirety of 108 Dublin. Mr. Kritz was present throughout the inspection.

Analysis

26The parties agree that the applicable section of the BCA is s. 16(1). That makes it clear that an inspector or officer shall not enter or remain in any room or place actually being used as a dwelling unless the consent of the occupier is obtained, the occupier first having been informed that the right of entry may be refused and entry made only under the authority of a warrant issued under the Act.

27The evidence of the City’s inspectors is that they obtained consent from an occupant of 108 Dublin before entering. The City therefore submits that the inspection fully complied with the Act. Mr. Kritz submits that the inspectors had only a qualified consent and that consent did not allow for such an inspection.

28On this evidence, for the following reasons, I find that the consent was granted.

29In this civil proceeding, the onus is on Mr. Kritz to show that he or the occupants did not consent on a balance of probabilities. He has failed to do so. The critical issue here is whether the occupant tenants consented to the inspection. The City’s witness says they were advised of the purposes of the inspection and consented. Mr. Kritz’s evidence is that he does not recall them doing so. Mr. Kritz could have called the tenants’ evidence on that issue, but did not. I have no reason to accept Mr. Kritz’ evidence on this point over that of the City’s representatives. Mr. Kritz’ evidence does not meet his civil onus. I cannot find that the City did not have consent to enter the premises.

30Having said that, I am uncomfortable with the proposition that a landowner must prove that the state did not have consent to enter the premises. The argument went ahead on a civil standard of “balance of probabilities” with the onus on Mr. Kritz. The section requires that the state must have the consent to enter and I prefer to put the onus on the City to show that such consent was obtained. As follows, I am also satisfied that consent was granted.

31The correspondence confirms that Mr. Kritz was aware of the conditions of the entry. The City did not accept his conditions and provided their own. Mr. Kritz then allowed the entry and the inspection went ahead on the City’s terms. Both Mr. Kritz and the tenants were in the premises at the time. On the admitted evidence, no objection was raised. I find that both Mr. Kritz and the occupants consented to the inspection that occurred. The inspection was valid.

Description of the Construction

The Facts

32During the inspection, the inspectors referred to hand drawn floor plans that had been prepared during a prior inspection in 1987, conducted by a former City inspector. The inspectors assumed that the 1987 floor plans were accurate and noted where there were differences between what they saw and what was depicted in the 1987 drawings.

33On or about December 23, 2015, Mr. Kritz received an Order to Comply, issued by Mr. Aubrey and dated December 9, 2015.

34The Order to Comply alleges that certain contraventions of the Building Code Act, 1992 were found during the November 30, 2015 inspection. Specifically, the Order to Comply alleges that the following “interior renovations” were carried out at 108 Dublin without a building permit (collectively, the “Alleged Renovations”):

(a) “Completion of interior finishes to the 3rd storey (attic) level”;

(b) “Plumbing installation for laundry facilities in the basement”;

(c) “Installation of a wall in a double entry way to create a bedroom on the 1st storey”; and

(d) “Installation of a wall to enclose a window in the basement”.

35The City inspectors did not raise the matters in the Order to Comply with Mr. Kritz during the investigation, nor did they contact him to discuss the alleged renovations before issuing the Order to Comply.

36Mr. Kritz and his co-owners did not carry out, or cause to be carried out, any of the alleged renovations. Each of the alleged renovations were carried out before Mr. Kritz’s ownership of 108 Dublin. The City does not know exactly when the alleged renovations were carried out, including whether they were completed when the house was originally built or shortly thereafter.

37The City’s inspector is of the opinion that the work carried out at 108 Dublin constituted material “installations” within the existing building. As such, they required a building permit. Mr. Kritz denies that.

Powers of the Court

38Pursuant to the terms of s. 25 of the BCA, a person who considers themselves aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under the Act may appeal the order or decision to the Superior Court of Justice.

39On an appeal, a judge may affirm or rescind the order or decision and take any other action that the judge considers the chief building official, registered code agency or inspector ought to take in accordance with this Act and the regulations and, for those purposes, the judge may substitute his or her opinion for that of the official, agency or inspector.

The Test to Apply

40Mr. Kritz submits that on this appeal of the inspector’s order, the standard of review to be applied will fall along a spectrum. He says:

[T]he more that the decision is a determination of law, the closer the standard will be to correctness. The more that the decision is dependent upon factual determinations within the special expertise of the Official, the more deference should be given, with a standard of reasonableness being applied. However, to the extent that the decision is based on the proper legal interpretation of legislation, by-laws or regulations, the Official must be correct.

41Mr. Kritz submits that the application of a defined term such as “construct” falls closer along the spectrum to determinations of law. Inspectors use the BCA “but they are far from being trained in law or statutory interpretation.” The inspector’s decisions should be reviewed on a standard of correctness.

42The City does not essentially dispute that submission but suggests that the test will change depending on the nature of the inspector’s decision. A decision involving a question of mixed fact and law that is within the inspector’s expertise attracts the standard of reasonableness. The more an inspector’s decision depends upon factual determinations within the special expertise of the inspector, the more deferential will be the standard of appellate review. For most issues, the standard of review will be reasonableness.

43In my view, this is a question of mixed fact and law. The inspector must consider the legislation in light of the circumstances that he finds and apply his expertise to the legislation. As such, I should defer to his determination so long as it is reasonable based on the evidence that I have in this record. If his determination is reasonable, I should not substitute my opinion.

The Definition

44Pursuant to s. 8. (1) of the BCA, 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. “Construct” means to do anything in the erection, installation, extension or material alteration or repair of a building.

45Much time was spent on the interpretation of those sections and their wording. For the purposes of considering these agreed facts, in my view, the plain meaning of the legislation is that no person shall do anything in the material alteration of a building unless a permit has been issued therefor by the chief building official.

46So the question is, are these alleged renovations “material alterations”?

The Evidence

47Besides the agreed upon statement of facts, I can rely on the balance of the record for this determination.

48And for ease of reference, the alleged renovations were:

a. “Completion of interior finishes to the 3rd storey (attic) level”;

b. “Plumbing installation for laundry facilities in the basement”;

c. “Installation of a wall in a double entry way to create a bedroom on the 1st storey”; and

d. “Installation of a wall to enclose a window in the basement”.

49In his cross-examination, Mr. Aubrey expanded on these brief points. They referred to the creation of two bedrooms, a three piece bath and a living room on the third floor, the installation of plumbing and laundry facilities in the basement, enclosing a wall and installing a door on the first floor, and the creating and then enclosing a window in the basement.

50Mr. Kritz filed an affidavit from an OBC consultant and a former Deputy Chief Building Official from Toronto. His opinion was that none of the alleged renovations should require a building permit.

Authorities

51Mr. Kritz relied on R. v. Lemieux, 2009 ONCJ 676, 69 M.P.L.R. (4th) 306. There, at paras. 57, 59, 74, Justice of the Peace Mackey said:

57. In regards to the word ‘material’, the Dictionary of Canadian Law (3rd edition, Thomson-Carswell, 2004) defines ‘material’ as “important, essential,” as well as, “That which goes to the foundation of the decision or which goes to the crux of a central issue before the court.”

58. I am satisfied that the word ‘material’ when used as an adjective applied to a change or alteration means significant or important or essential and must go to the crux of an issue. The use of words and their natural meaning is critical and represents a pathway for us to follow.

59. There is no evidence that any of the noted violations meet the definition of significant changes or alterations, no change brought forward in evidence is structural in nature and there is no evidence of any public safety issues or hazards to continued occupancy. Homeowners routinely renovate their homes below the ‘significant’ change level which would require permits and continue to live in the premises quite safely.

52The City relies upon R. v. King Insulation Services Ltd. (1981), 13 M.P.L.R. 127 (Ont. Div. Ct.). There, the Court was dealing with the installation of insulation into a home. O’Leary J. said:

In our view, the installation of insulation to the extent involved in the case before us constitutes a material alteration to a building. While we proceed on the basis that it would not have constituted any structural change to the building, any more than would have the installation of electric wiring into a building previously without electric wiring, yet like the installation of electric wiring, we believe that the installation of insulation creates a material alteration in a building. It is our view that a building that has been insulated, has material advantages over one that has not had such insulation installed just as a building that has been wired for electricity has material advantages over one that has not been wired.

We therefore agree with the decision of Judge Warrender that the installation of insulation into the four walls of a home does constitute a material alteration to that building and falls therefore within the meaning of “construction” as defined in s. 1(3) of The Ontario Building Code Act, 1974 and accordingly, that the failure to have obtained the permit required by s. 5 of the Act is a violation of that section and that it was proper for him to have registered a conviction.

53The City denies the importance of the evidence of Mr. Kritz’s consultant. It relies on Lawrie (Litigation Guardian of) v. North Saanich (District), 2010 BCSC 53, [2010] B.C.J. No. 63. There, at paras. 8-14, Sewell J. dealt with a similar situation and said:

8 The petitioner relies on an affidavit of a Mr. Art Finlayson, a qualified architect. Mr. Finlayson states that in his opinion the term "structural" refers to that part of a building which provides support to the roof of the building. In effect, in Mr. Finlayson's view it is the load bearing parts of the building which can properly be characterized as structural. In his submission Mr. Lott also referred me to some dictionary definitions which suggest the same definition.

9 The respondent relies on the affidavit of Mr. Post. Mr. Post issued the Stop Work Order in issue in this case. One reason for his so doing was that he concluded that the drywall was part of the structure of the house because it provides lateral support against wind load.

12 Once the court concludes that the power being exercised was within the jurisdiction of the authority it should interfere with the exercise of that power only if it concludes that the decision under review was unreasonable. Once again, Dunsmuir gives guidance as to what I must find in order to conclude that the decision was unreasonable. In approaching this issue I have concluded that I should show considerable deference to the decision of the building official. In deciding that the petitioner required a building permit, the building official was interpreting the enabling statutory authority, the Bylaw, and was making a decision in an area in which he had particular expertise, the proper nature of the function played by drywall in contributing to the structural integrity of a building.

13 While it does seem to me that Mr. Post is adopting a somewhat technical analysis in this matter, I am unable to conclude that his decision that the Work is of a structural nature cannot reasonably be supported. In this case there is no allegation of bad faith or improper motivation on the part of the building official.

14 It is apparent that there is a difference of opinion between Mr. Finlayson and Mr. Post with respect to the question of whether the Work is of a structural nature. However it is Mr. Post, in his capacity as a building official, who is charged with the responsibility to make the decision as to whether the work is structural. As indicated above, the fact that there is evidence to support a contrary conclusion does not make the decision unreasonable.

Analysis

54I have considerable concern about the admissibility of the opinion of Mr. Kritz’s consultant. However, since the city has not objected to it, I will leave that issue alone.

55I agree with the City that the opinion of Mr. Kritz’s consultant is of little assistance. Taking this opinion at its highest for Mr. Kritz’ purposes, it is simply another interpretation of the facts and law. That opinion, standing alone, does not make the decision of the City unsupportable.

56Further, Mr. Kritz takes the position that this issue is a matter of law to be determined on the basis of correctness. That position is inconsistent with putting forward an expert’s opinion on other than the law.

57Nonetheless, in my view, based on the case law, the items referred to above are not material. I find R. v. Lemieux, relied upon by Mr. Kritz, to be persuasive in this case. In Lemieux, the court, at para. 55, emphasized that the purpose of the building code legislation is to provide a “set of minimum provisions respecting the safety of buildings with reference to public health, fire protection and structural sufficiency.” Justice of the Peace Mackey further emphasized, at para. 60, that the legislation must also protect the rights of the public in dealing with the legislative requirements, by virtue of being reasonable and fair.

58I find a similar analysis applies to the renovations in this case. They are minor in nature, and do not go to the structural essence of the property. Simply putting in a new internal wall does not meet this threshold. While plumbing installation was involved in the creation of the basement laundry room, this is not of such a degree as to constitute a material change to the property or create a hazard to continued occupancy. The alleged renovations in this case cannot be said to “rise to the level of a public safety or structural integrity concern”.

59I see R. v. King as fact driven and those facts are significantly different than what I have here.

60I appreciate that I must consider whether to defer to the expertise of the inspector; however, on this record, the items referred to in the order are the sort of minor renovations without structural import (particularly given their age) that any homeowner should be able to do without the involvement of city inspectors. To find otherwise would not be a reasonable and fair application of the legislation. On this record, I find that the inspector’s decision was unreasonable. As such, the inspector’s opinion is not entitled to deference. It is quashed.

Result

61Accordingly, the application is granted and the order is rescinded.

Costs

62If the parties cannot agree on costs, written submissions may be made to me. Mr. Kritz shall provide his submissions within 15 days and the City shall respond within 15 day thereafter. There shall be no reply unless it is asked for. Each submission will be no more than three pages, not including any offers to settle or bills of costs.