CITATION: Municipality of Dysart v. Haliburton Forest & Wild Life Reserve Limited, 2016 ONSC 956
COURT FILE NO.: CV-15-0506
DATE: 20160205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE MUNICIPALITY OF DYSART ET AL and DAN SAYERS, CHIEF BUILDING OFFICIAL
Applicants
– and –
HALIBURTON FOREST & WILD LIFE RESERVE LIMITED and PETER CHRISTOPH SCHLEIFENBAUM
Respondents
AND BETWEEN:
HALIBURTON FOREST & WILD LIFE RESERVE LIMITED
Applicant by Counter-Application
– and –
THE MUNICIPALITY OF DYSART ET AL and DAN SAYERS, CHIEF BUILDING OFFICIAL
Respondents by Counter-Application
Michael M. Miller, for the Applicants (Respondents by Counter-Application)
Al Burton, for the Respondents (Applicant by Counter-Application)
HEARD: December 11, 2015
REASONS FOR DECISION
DiTOMASO, J.
INTRODUCTION
[1] The Applicants (Respondents by Counter-Application), The Municipality of Dysart and Dan Sayers, seek a mandatory order requiring the Respondents (Applicant Haliburton by Counter-Application), Haliburton Forest & Wild Life Reserve Limited and Peter Christoph Schleifenbaum, to demolish three structures and three additions to structures which have been constructed without the benefit a Building Permit.
[2] The Applicants further seek an order restraining the Respondents from occupying a structure known as the Logging Museum for any purpose other than storage until they have obtained a Change of Use Permit for the main Museum structure and a Building Permit for the addition to the Museum.
[3] The Respondents have brought an application seeking a mandatory order directing the Applicants to issue a Building Permit for the addition to the Logging Museum which has been built without a Building Permit, and for a declaration that they are not required to obtain a Building Permit for the structures referred to as the EcoLog Mill building and the Stocking Lake structure.
[4] There are three properties upon which the Respondents have constructed structures and additions to structures for which no Building Permits were obtained.
[5] The properties and structures can be described as follows:
(a) at Stocking Lake a 72′ x 24′ structure;
(b) at 3798 Kennisis Lake Road:
(i) the EcoLog Mill building approximately 46′ by 100′;
(ii) a 26′ by 64′ building[^1] used for firewood processing;
(iii) a 20′ by 60′ lean-to addition to a Chip Processor[^2];
(iv) a 20′ by 50′ addition to the sawmill;
(c) at Redkenn Road, a 40′ x 50′ addition to the Logging Museum. This is the only structure for which the Respondents made application for a Building Permit.
[6] At the outset of the hearing on December 11, 2015, on consent, an order was made consolidating the applications commenced by the Municipality of Dysart et al and Dan Sayers, Chief Building Official and the application commenced by Haliburton Forest & Wild Life Reserve Limited and the applications were heard together.
OVERVIEW
[7] The evidence contained in the application and reply application of the Applicants, the responding application record of the Respondents and the undertakings brief provide in detail the three property locations, namely Stocking Lake, 3798 Kennisis Lake Road and Redkenn Road. On each of those properties were located structures and/or additions to structures. In respect of the Stocking Lake and 3798 Kennisis Lake Road structures, no Building Permits were ever applied for or obtained by the Respondents. Certainly this is conceded by the Respondents regarding three structures located on the 3798 Kennisis Lake Road property.
[8] The issues in respect of the Logging Museum located on the Redkenn Road property are somewhat different. A Building Permit had been issued for the construction of a storage building. The Respondents sought to add an addition to the storage building which was later used as a museum where the public could view historic artifacts. The Respondents intended to build an addition to the Logging Museum for which a Building Permit was sought. The Chief Building Official, Dan Sayers rejected the request for the Building Permit on November 12, 2014 on the grounds that the Site Plan was not adequate, a Change of Use Permit was required and the Engineered Plan was not legible. The Respondents took the position that a change of use to the storage use was only incidental and temporary and that it was not necessary to apply for a Change of Use Permit regarding the expansion of the Logging Museum.
[9] A 72′ x 24′ building[^3] was constructed at Stocking Lake. No Building Permit was issued or applied for with respect to this structure. The structure replaced an older building which was demolished without the benefit of a Demolition Permit in the Fall of 2013. It was constructed on an engineered slab.[^4] It is used as a dormitory for children and adults for summer camp, retreats and other such uses. Construction commenced in the Fall of 2013. Though some interior finishing needs to be completed, most of the work was completed in the Spring/Summer of 2014.
3798 Kennisis Lake Road – EcoLog Mill Building (First Structure)
[10] This building is so named as it houses a sawmill that processes logs. The building is approximately 46′ by 100′ in size.[^5]
[11] The Respondents allege that this was not a new building but one that Mr. Schleifenbaum had moved a distance of two kilometers south from 4460 Kennisis Lake Road to 3798 Kennisis Lake Road. Mr. Schleifenbaum corresponded with Dan Sayers asking what drawings and permits would be necessary to move the structure to this new location.
[12] However, Mr. Schleifenbaum admitted that the only building ever located at 4460 Kennisis Lake Road is the building depicted in the photo at Tab B, page 19 of the Reply material. A concrete slab was poured to support the new structure at 3798 Kennisis Lake Road. The building depicted in the photo at Tab B was not moved but remains in place at 4460 Kennisis Lake Road. The owner moved some machinery and some of the interior finishes of this building to 3798 Kennisis Lake Road, but nothing else. The previous structure remained intact at 4460 Kennisis Lake Road where the structure is currently used as a workshop. The structure located at 4460 Kennisis Lake Road was never moved and the structure located at 3798 Kennisis Lake Road was a new build. The Applicants deny that Mr. Sayers told Mr. Schleifenbaum that a Building Permit would not be needed to recreate the old structure.
3798 Kennisis Lake Road (Second Structure)
[13] Besides the EcoLog Mill building there are three additional buildings at 3798 Kennisis Lake Road. The second building consists of a 26′ by 64′ firewood processing building[^6] for which no Building Permit was obtained. An engineered concrete slab foundation was poured for this structure.[^7]
3798 Kennisis Lake Road (Third Structure)
[14] The third structure is a 20′ by 60′ lean-to chip processor for which no Building Permit was issued. It sits on concrete piers.[^8]
3798 Kennisis Lake Road (Fourth Structure)
[15] The fourth structure located at 378 Kennisis Lake Road is an addition to an existing sawmill structure, 20′ by 50′. No Building Permit was taken out. The owner argues that he was not aware that a Building Permit had been specifically requested for the addition. He had obtained a Building Permit for the installation of solar panels to the existing structure and addition. The owner’s engineer was advised a Building Permit was necessary for the addition. Mr. Lieman, his engineer, advised the Applicants that they were going to apply for such a Permit, but they did not.
Logging Museum
[16] The Respondents admitted this structure was originally constructed as a storage building (40′ by 80′) for historic artifacts. A Building Permit had been issued for a storage building. In the Summer, the doors are open to the public so they can wander through looking at these artifacts. The owner sought to add an addition to the Logging Museum (40′ by 80′). The Respondents had the concrete foundation poured before they applied for a Permit on October 26, 2014. They completed the addition near the end of 2014 without the benefit of a Building Permit.
[17] On November 12, 2014, the Chief Building Official rejected the request for a Building Permit as the Site Plan was not adequate, a Change of Use Permit was required and the engineered plan was not legible.
[18] During the Respondents’ Summer music festivals, the building houses up to 500 people for concerts. The Respondents treat this use as an incidental use to the storage use and have refused to apply for a Change of Use Permit and to properly classify the addition as to occupancy.
ISSUES
[19] The issues to be determined are as follows:
Issue A: Is the Respondent Haliburton entitled to a mandatory Order directing the Applicants to issue a Building Permit for the expansion of the Logging Museum?
Issue B: Is the Respondent Haliburton entitled to a declaration that it is not required to obtain Building Permits for the EcoLog Mill Building and the Building at Stocking Lake?
Issue C: Is the Chief Building Official entitled to a mandatory order requiring demolition of the subject structures and additions?
Issue D: Is the Chief Building Official entitled to an injunction restraining the Respondents from conducting concerts and other public events at the Logging Museum?
Issue E: What is the standard of review of the Chief Building Official’s Decisions?
Issue A: Is the Respondent Haliburton entitled to a mandatory Order directing the Applicants to issue a Building Permit for the expansion of the Logging Museum?
Issue E: What is the standard of review of the Chief Building Official’s Decisions?
[20] The Respondent Haliburton commenced an Application on July 31, 2015 seeking an immediate issuance of a Building Permit for the expansion of the Logging Museum and a declaration that the Respondents are not required to obtain Building Permits for the EcoLog Mill Building and the Stocking Lake structure. In response, it is the position of the Applicants that such relief is not available to Haliburton.
[21] Further, the Applicants take the position that the scheme established by s. 25 of the Building Code Act cannot be circumvented by Haliburton’s Application for declaratory relief under rule 14.05(3) of the Rules of Civil Procedure. The proper forum would have been an appeal to this court from the decision of the Chief Building Official to not issue a Building Permit for the Museum addition.[^9]
[22] If the proper procedure is an Application pursuant to s. 25 of the Building Code Act, is Haliburton entitled to an extension of time to bring the Application? The Chief Building Official advised Haliburton that no Building Permit could be issued for the addition of the Logging Museum until a Change of Use Application had been made for the entire structure. This was communicated to Haliburton on November 12, 2014. No appeal of that decision was taken to the Superior Court as required by s. 25 within 20 days of the Order or decision.[^10]
[23] The Respondents submit that this is an appeal under s. 25 of the Building Code Act and that the courts have recognized multiple times that injunction proceedings and appeals pursuant to s. 25 of the Building Code Act can be consolidated into one proceeding.[^11]
[24] The standard of review on a s. 25 appeal is correctness on questions of law and reasonableness on questions of fact and mixed questions of fact and law. A judge hearing a s. 25 appeal can only do what the Chief Building Official could have done and must apply the law at the time the application is made.[^12]
[25] The burden of proof rests on Haliburton to show that the decision of the Chief Building Official was in error within the standard of review.[^13]
[26] Haliburton submits that it appeals the failure of Mr. Sayers to issue a Building Permit for the expansion of the Logging Museum. Haliburton submits that his refusal was based primarily on a determination that the use of the building in question had changed from storage to “assembly occupancy” as defined by the Ontario Building Code which is a regulation under the Building Code Act. In making this determination, it is submitted that the Chief Building Official committed an error of law by failing to have regard for the definition of “major occupancy” in the Ontario Building Code. It is asserted that the Chief Building Official failed to consider the Ontario Building Code in its entirety. Focusing on the question of whether the brief use of storage space for another purpose changed the building into “assembly occupancy”, it is alleged that the Chief Building Official misdirected himself because he failed to consider that the principle occupancy was storage as was applied for by Haliburton. The use of additional storage space for brief periods of time did not change the principle use of the space.
[27] The Applicants take a much different view on a fulsome interpretation of the Building Code Act and the Ontario Building Code. The Applicants submit that the Chief Building Official made no error. Further, the procedure adopted by Haliburton is not an appeal from the decision of the Chief Building Official. Rather, it is an application that seeks the remedy of a mandatory order to issue a Building Permit and declaratory relief that Building Permits are not required for the EcoLog Mill Building and the structure on the Stocking Lake property.
[28] In Metro 1 Development Corporation Limited v. Toronto (City)[^14] Justice Chapnik addressed the following two questions: 1) What was the appropriate procedure for the applicant to have taken in order to contest the decision of the CBO (Chief Building Official) 2) If the proper procedure was to appeal the decision pursuant to s. 25(1) of the BCA (Building Code Act) should the court exercise its discretion to convert this application to an appeal pursuant to s. 25(2) of the BCA?
[29] In Metro 1, the applicant commenced an application under rule 14.05(3) of the Rules of Civil Procedure for certain declaratory relief as did Haliburton in this case.
[30] The Applicants contend that an application before this court is an improper procedure to challenge the CBO’s decision and would circumvent the established statutory scheme available to a person who claims to be aggrieved by an order or decision made by the CBO. The proper procedure for Haliburton to have taken, submits the Municipality, was an appeal under s. 25(1) of the BCA.
[31] Section 25(1) of the BCA reads as follows:
(1) 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 this Act (except a decision under subsection 8(3) not to issue a conditional permit) may appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made.
[32] In our case, the decision of Mr. Sayers was communicated to Haliburton on November 12, 2014. No appeal of that decision was taken to the Superior Court as required by s. 25 within 20 days of the order or decision. Rather, Haliburton commenced its application under the Rules of Civil Procedure on July 31, 2015. No appeal of Mr. Sayers’ decision was taken to the Superior Court as required by s. 25 within 20 days of the order or decision.
[33] At para. 25 in Metro 1, Justice Chapnik held:
[25] In my view, the scheme established by s. 25 of the BCA cannot be circumvented by the applicant’s application for declaratory relief under rule 14.05(3). The proper forum to have brought the application would have been as an appeal to this Court from the decision of the CBO.
[34] Justice Chapnik answered the first question by determining that the proper procedure for the Applicant to challenge the CBO’s decision was to appeal the CBO’s decision under s. 25(1) of BCA. It had not done so.
[35] In the case at bar, I agree that the proper procedure were Haliburton to challenge Mr. Sayers’ decision was to appeal his decision under s. 25(1) of the BCA and Haliburton has not done so. There is no explanation on the evidentiary record before me as to why Haliburton has not done so or why, at this juncture, Haliburton seeks an extension.
[36] In response to the second question before the court, Justice Chapnik declined to convert the application to an appeal pursuant to s. 25(1) of the BCA and also declined to exercise her discretion to extend the time for the commencement of such an appeal under s. 25(2) of the BCA. On the facts and circumstances before her, Justice Chapnik determined that the case was not appropriate to exercise her discretion in the applicant’s favour and gave reasons. In Metro 1, as in our case, Haliburton and its principal Mr. Schleifenbaum were experienced land owners. They have dealt with the Municipality on numerous occasions in the past. They have consulted with engineers and know the requirements of submitting applications for Building Permits. In fact, their own engineers had made assurances to the Municipality that the application for a Building Permit would come but it was never forthcoming (addition to the sawmill). The Respondents were aware that applications for Building Permits were required but they failed to apply and obtain same with the exception of the Logging Museum addition. There is no reasonable explanation in this case for Haliburton’s failure to commence an appeal of Mr. Sayers’ decision in accordance with the clear statutory mandate. There is no explanation as to why Haliburton did not commence the application until July 31, 2015 – some eight and a half months after the decision of Mr. Sayers.
[37] To permit Haliburton to appeal at this late date would be inconsistent with the Legislature’s clear intent expressed in s. 25(1) to provide for the expeditious resolution of such appeals.[^15]
[38] I have decided that the proper procedure would have been an appeal to this court from the decision of the Chief Building Official to not issue a Building Permit for the Logging Museum addition. If the proper procedure is an application pursuant to s. 25, is Haliburton entitled to an extension of time for bringing its Application? I decline to exercise my discretion to extend the time for the commencement of such an appeal under s. 25(2) of the BCA. The decision of Mr. Sayers was communicated to Haliburton on November 12, 2014. He advised that no Building Permit could be issued for the addition of the Logging Museum until a Change of Use application had been made for the entire structure. For the following, I find that his decision was not an error in law. Our courts held that a decision on questions of mixed fact and law by the CBO is entitled to considerable deference due to the nature of the matters and the expertise of the decision-maker.[^16]
[39] Haliburton submits that for close to 99 per cent of the year, it used the Logging Museum as storage space to display historical logging equipment. The use of the additional storage space for periods of time “equivalent to approximant one per cent of the year” does not change the principle use of the space. It is argued that because there was no principle change of use Mr. Sayers was wrong in refusing to issue a Building Permit and wrong again that no Building Permit should issue until a Change of Use Permit was obtained. In doing so, he failed to properly interpret the Ontario Building Code. I disagree.
[40] Review of the relevant provisions of the BCA addresses the change of use issue.
[41] The BCA contains the following provisions:
- (1) In this Act,
“building” means,
(a) A structure occupying an area greater than ten square metres consisting of a wall, roof and floor or any of them or a structural serving the function thereof including all plumbing, works, fixtures and service systems appurtenant thereto.
- (1) No person shall construct or demolish a building or cause a building to be constructed or demolished unless a permit has been issued by the chief building official.
[42] In conjunction with the reading the BCA should be read the relevant provisions of the Ontario Building Code, 1997 (the “Code”). Parts 1, 2, 7 and 12 of the Code apply to all buildings. The Logging Museum is a building occupying an area greater than 10 square metres and comes within the definition of a “building” pursuant to 1 (1)(a) of the BCA.
[43] While Haliburton draws a distinction between principle and temporary occupancy, there is no such distinction referred to in the legislation. Section 10 of the BCA provides:
Change of Use – (1) Even though no construction is proposed, no person shall change the use of a building or part of a building or permit to 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.
(2) Permit – 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.
[44] The Code requires Permits under s. 10 of the Act in circumstances where the use for a building or part of a building is changed and the previous major occupancy of the building or part of the building cannot be determined.[^17]
[45] The Code also speaks to classification of buildings s. 3.1.2.1 provides:
(1) Except as permitted by Articles 3.1.2.3. to 3.1.2.6., every building or part thereof shall be classified according to its major occupancy as belongings to one of the Groups or Divisions described in Table 3.1.2.1.
(2) A building intended for use by more than one major occupancy shall be classified according to all major occupancies for which it is used or intended to be used.
[46] Appendix A provides a description of major occupancies.
[47] I find in our case that the major occupancy identified is “assembly occupancies intended for the production and viewing of the performing arts”.
[48] The Code also provides for multiple occupancies.[^18]
[49] In our case, the existing structure of the Logging Museum was used not only for storage but also for the display of historical items. I find that there was a change of use where the addition to the Logging Museum was built without a Building Permit and was used for concerts and performances. This occurred at least five times during the Summer of 2014 and occurred for at least same number of times during the Summer of 2015. The use of the addition on those occasions had nothing to do with storage or the display of historical logging equipment.
[50] The decision of Mr. Sayers not to issue a Building Permit was communicated to Mr. Schleifenbaum on November 12, 2014. Mr. Sayers’ email can be found in the Reply Application Record at page 58 and reads as follows:
Peter, I have reviewed your Building Permit Application for an addition to the logging Museum and cannot issue a permit at this time due to the following:
The Site Plan you provided does not contain the required information. It does not indicate any lot lines, distances from lot lines, Dimension and size of buildings, which building is being added to, the use of the buildings. Just to name some missing items. If you look at your Site Plan from the sawmill it will give you an idea of what we are looking for.
The use of the building is not indicated on the plans or on the application. All buildings must be classified as to the Occupancy in accordance with Part 3.1.2 or Part 9.10.2. The code requires classification in accordance with every major occupancy. Nowhere in the code does it mention temporary uses. The code deals with health and safety and having several hundred people in a building is definitely a concern.
The use and Occupancy of this building is in question. During your attendance at the Council meeting on July 28 you said that this building would be used for storage and utilized for concerts. Your plans have not taken this into consideration. I know you had at least 5 concerts in the existing part this summer.
The engineered plans you provide for the structural part are not legible (to small) (sic). The foundation is required to be engineered but no plans where included.
Please feel free to contact me to discuss this matter.[^19]
Dan
[51] I find that Mr. Sayers correctly identified the use of the addition for concerts and that nowhere in the Code is there any mention of temporary uses. Further, he correctly identified that classification of buildings intended by use by more than one major occupancy shall be classified according to all major occupancies for which it is used or intended to be used. He also identified concerns with health and safety and having several hundred people in the addition. The evidence from Mr. Schleifenbaum was that the addition could hold up to 500 people. In our case, the Logging Museum and its addition had multiple occupancies. As such, it had more than one major occupancy i.e. Storage (display of historical artifacts) and assembly occupancies intended for the production and viewing of the performing arts. The Code provides that more than one major occupancy shall be classified according to all major occupancies for which it is used or intended to be used (see s. 3.1.2.1(2)). I find the decision of Mr. Sayers correct on his interpretation of the Ontario Building Code when he told the Respondents no Building Permit would issue for the addition until a Change of Use Application had been made for the entire structure.
[52] For these reasons, I would dismiss Haliburton’s application for a mandatory order compelling the Applicants to issue a Building Permit for the expansion of the Logging Museum.
Issue B: Is the Respondent Haliburton entitled to a declaration that it is not required to obtain Building Permits for the EcoLog Mill Building and the Building at Stocking Lake?
[53] Haliburton seeks declaratory relief which is not the proper subject of a s. 25 appeal. It is at best a response to the Chief Building Official’s request for a mandatory order seeking demolition of the offending structures. Counsel for the Applicants characterized the relief in the nature of a defence.
[54] Regarding the Stocking Lake property, the evidence is clear. An older structure was demolished to make way for the existing structure. No Demolition Permit was taken out. Work on the new structure was completed in the Summer of 2014 for a structure used as a dormitory. The foundation was an engineered concrete slab which was completed in November 2013. I find that no Demolition Permit was obtained. No Building Permit was applied for or obtained. No Building Permit has been applied for since by the Respondents regarding this new building.
[55] Regarding the EcoLog Mill building while there had been some discussion with Mr. Sayers about the intent to move this building located two miles north at 4460 Kennisis Lake Road, this building was never moved to 3798 Kennisis Lake Road. It continues to exist at 4460 Kennisis Lake Road and used as a workshop. Some machinery and some interior finishes were moved to the 3798 Kennisis Lake Road property but nothing else. Rather, the Respondents built a new building at 3798 Kennisis Lake Road with a new concrete slab poured to support the new structure. No Building Permit was applied for or obtained in respect of the construction of the new building i.e. the EcoLog Mill building at 3798 Kennisis Lake Road. Evidence regarding the new engineered concrete slab can be found in the undertaking brief at Tab 3. It is submitted by the Respondents that somehow the Stocking Lake and EcoLog Mill scenarios are interrelated. They all relate to alleged information received from Mr. Sayers about whether or not buildings could be moved. It is submitted that the Respondents relied upon advice received from Mr. Sayers and the Respondents assumed that they could reconstruct a building on the Stocking Lake property. It is alleged that they made certain assumptions based on their experience with Mr. Sayers in 2011 regarding the EcoLog Mill and advice received from him.
[56] I do not accept this submission and reject it.
[57] The evidence of Mr. Sayers is credible and reliable in respect of both the Stocking Lake and EcoLog Mill structures and I accept that evidence. Whatever the Respondents assumed, they assumed wrong. Building Permits were required in respect of both structures.
[58] For these reasons, the Haliburton’s application for a declaration that no Building Permits are required for the EcoLog Mill building and the building at Stocking Lake is hereby dismissed.
Issue C: Is the Chief Building Official entitled to a mandatory order requiring demolition of the subject structures and additions?
General Principles
[59] The Building Code Act provides that “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.”[^20]
[60] The Building Code Act provides that where the Chief Building Official believes a person is not in compliance with the Act, they may apply to the Superior Court of Justice for an Order directing that person to comply with the provision and the court may make such order as they deem fit. It is the position of the Chief Building Official that the failure and refusal of the Respondents to obtain Building Permits for the structures which are the subject matter of the Application, is a flagrant and unjustified violation of the Ontario Building Code Act. 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 the Building Code Act.
The Individual Structures
[61] I have already discussed the Stocking Lake and EcoLog Mill structures in some previous detail.
A. Stocking Lake Property
[62] This structure replaced an earlier building which was demolished in the Fall of 2013 without a Demolition Permit. The structure was completed in the Spring/Summer of 2014 without a Building Permit and houses children and adults in a dormitory setting.
B. The EcoLog Mill Building
[63] The EcoLog Mill Building is a structure 46′ by 100′. It was not moved from 4460 Kennisis Lake Road as alleged by Haliburton, but was constructed on site without the benefit of a Building Permit.
C. Two additional structures constructed at 3798 Kennisis Lake Road were a 26′ by 64′ firewood processing building and a 20′ by 60′ lean-to Chip Processor
[64] No Building Permit was applied for or obtained in respect of these two structures. Counsel for the Respondents concedes that no Building Permit was applied for and none was issued.
D. Addition to the sawmill 20′ by 50′ at 3798 Kennisis Lake Road
[65] Similarly, counsel for the Respondents concedes that no Building Permit was obtained and none was issued in respect of this structure.
[66] No Building Permit was obtained for the addition to the sawmill which is 20′ by 50′. A Building Permit was obtained for the installation of solar panels but none was obtained for the addition which was only discovered when the Chief Building Official examined the application for the solar panel installation. The engineers for the Respondents had indicated to the Applicants that a Building Permit application would be forthcoming but it was never submitted.
E. An addition to the Logging Museum at the Redkenn Road property
[67] This issue was previously discussed in my Reasons. An addition was made to the Logging Museum without a Building Permit. A Permit was applied for but refused (see decision of the Chief Building Official November 12, 2014 email to Mr. Schleifenbaum). No appeal of the Chief Building Official’s decision was undertaken.
[68] For these reasons, the answer to this question is yes. 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 were not inexperienced in respect of this matter. They were aware of the necessity to obtain engineering advice which they did for a number of structures regarding the concrete slab foundation. Their engineers were also aware of the necessity to obtain a Building Permit, had assured the Municipality that one was forthcoming but in the end, there was no such application. Similarly, the Respondents cannot hide behind some mistaken assumption on their part drawn from what Mr. Sayers may or may not have told them. The evidence does not support or give comfort to the Respondents in this regard.
Issue D: Is the Chief Building Official entitled to an injunction restraining the Respondents from conducting concerts and other public events at the Logging Museum?
[69] The original Building Permit issued for the Logging Museum permitted the construction of a storage building. Later, the Applicants discovered, the structure had been used not only for storage but for concerts. A Change of Use Permit should have been applied for when Haliburton began using the building and addition as a Festival site. No such Change of Use Permit was obtained. Without a Change of Use Permit, a Building Permit could not be issued for the addition.[^21]
[70] When the use of the structure changed to a mixed use, it was subject to re-classification as an Assembly Occupancy intended for the viewing of performing arts.[^22]
[71] A number of Change of Use cases were cited by counsel for the Applicants. They are noteworthy in the discussion of this issue.
[72] In Miraculous Growth Investments Inc. v. Safety Code Council, 2010 ABQB 620 the Applicant corporation had converted a duplex into a seven suite boarding and rooming house.
[73] At para. 26, the court referred to the Alberta Safety Codes Act which provides that a Building Permit is required for a change in occupancy of a building. The court held:
Pursuant to s. 6 of the Permit Regulation, Alta. Reg. 204/2007 (Safety Codes Act), a building permit is required for a change in the occupancy of a building. Additional permits may be required if the change in occupancy results in other changes to the electrical system, storage tank system, gas system, or plumbing system. These requirements ensure that a change in the occupancy of a building does not compromise the safety of that building and its occupants. Any failure to comply with the requirements of the Regulation may pose a risk to public safety.
[74] The reviewing judge concluded that the Safety Codes Council made no error when it ordered the duplex to be returned to prior use. The decision was upheld on appeal.
[75] In Fraser-Cheam (Regional District) v. Zaandam Management Ltd., 1992 381 (BC SC) the court dealt with a Change of Use situation. Residential houses were being used as tourist attractions and a medical centre. The Respondents stated that no Permit was necessary. If there was any change in occupancy, it was only partial and no Permit was required for partial change.
[76] At page 6 the court held:
…However, when the class of occupancy changes, different health and safety requirements must be considered by the inspector. Therefore, a permit must be obtained. The previous use of the premises might well have met the health and safety standards of the municipality. They may be completely inadequate for the new usage.
Evan a partial change may need some changes. Where a person moves into his or her basement and opens a restaurant on the main and second floor, the safety and health expectations would likely be quite different than those expected of a single family dwelling.
[77] In Sunnybrae Springbrook Farms Inc. v. Township of Trent Hills, et al., 2010 ONSC 1123 at para. 72 the court held:
The interpretation and local application of the Building Code is uniquely confided by the statutory regime in the municipality’s chief building official. This is an area where expert evidence is normally required and the parties have provided me with none, nor has the chief building official of the municipality filed an affidavit or been deposed.
[78] In our case, the Chief Building Official Mr. Sayers filed an affidavit and reply affidavit with exhibits. He addressed the health and safety concerns both in his affidavit material and in his decision of November 12, 2014 email to Mr. Schleifenbaum. His evidence has not be refuted or contradicted by the Respondents or any expert evidence in this case.
[79] Clearly, the Logging Museum was used initially for storage and later for the display of historical articles. Subsequently, it became the expressed intention of the Respondents to build an addition as a venue to hold concerts. Quite rightly, Mr. Sayers had concerns about the Change of Use and that before a Building Permit for the addition would be issued, a Change of Use Permit regarding the occupancy of the entire structure was necessary. The Respondents had the foundation poured before they applied for a Building Permit on October 26, 2014. The addition was completed near the end of 2014 without the benefit of Building Permit. In 2014, the addition was used for festivals and concerts. Again, in 2015, there were numerous planned performances. The festivals and concerts had become an annual event. The addition had become a festival/concert venue which could accommodate at least 500 people.
[80] I find the Respondents’ Change of Use moved health and safety considerations to the forefront. The Applicants’ direct response was for the Respondents to comply with their statutory obligations regarding health and safety under both the Building Code Act and the Ontario Building Code. I agree the Change of Use Permit should have been applied for when the Respondents began using the Logging Museum addition as a festival site. No such Change of Use Permit was obtained. Without a Change of Use Permit in this case, a Building Permit could not be issued for the addition.
[81] For these reasons, I find the Chief Building Official is entitled to an injunction restraining the Respondents from conducing concerts and other public events at the Logging Museum.
Is an equitable defence available to the Respondent landowner Haliburton?
[82] The answer to this question is no. The Chief Building Official neither has the authority nor the legal competence to determine whether the doctrine of estoppel or waiver exists and is only entitled to enforce the Building Code.[^23]
[83] Even if the Chief Building Official was aware that construction was completed without a Building Permit and failed to take enforcement procedures, that is not a factor precluding a municipality from applying for an order seeking the removal of the construction. The Chief Building Official did not have the authority to waive the provisions of the Building Code.[^24]
[84] The Chief Building Official is in the best position to determine whether a Building Permit should be issued and the burden rests with the property owner to provide expert evidence to refute the position taken by the Chief Building Official.[^25]
[85] Counsel for the Respondents submitted that the court ought to exercise its discretion, order that the Applicants issue an order to comply under s. 38 of the BCA and thereafter permit the Respondents to remediate. I see no reason to exercise by discretion in this regard in all the circumstances.
[86] Further, the Respondents submit that the parties could resort to the Municipality’s by-law number 2014-30 respecting construction, demolition and Change of Use Permits and inspections. The Respondents could be charged double for the issuance of Building Permits and would be compelled to provide to the Chief Building Official “as constructed plans” on completion of construction.
[87] I see no reason why this by-law would provide any comfort to the Respondents in the circumstances before this court. I reject both proposals as being altogether inappropriate and, by far, too little - too late.
DISPOSITION
[88] For reasons given, Haliburton’s application is dismissed. The relief sought by the Applicants is hereby granted.
[89] The Applicants are granted the following order:
(a) A mandatory Order that the Respondents demolish and remove, within 30 days, the log building constructed without the benefit of a Building Permit on their property legally described as LT 6-10 CON 9 HAVELOCK; LT 6-10 CON 10 HAVELOCK S/T INTEREST IN H23090; DYSART ET AL, being all of the lands in PIN 39113-02010 (LT) (“the Stocking Lake Property”);
(b) An Order that, should the Respondents refuse or fail to comply with any Order directing them to demolish the log building, the Applicants be authorized to demolish the log building constructed without the benefit of a Building Permit, with the costs of such demolition to be added to the tax roll for the Stocking Lake Property;
(c) A mandatory Order that the Respondents demolish and remove, within 30 days, the open post and bean building approximately 26 feet by 64 feet, the addition to the Chip Processing Plant approximately 20 feet by 60 feet, the addition to the sawmill approximately 20 feet by 50 feet and the Echo Log Mill structure approximately 46 feet by 100 feet, all constructed without the benefit of a Building Permit on their property legally described as LT 15 CON 11 GUILFORD; PT LOT 13-14 CON 11 GUILFORD; PT LOT 14-15 CON 12 GUILFORD AS IN H219871 AS SHOWN ON C178; S/T H219871 T/W H111520; DYSART ET AL, being all of the lands in PIN 39137-0215 (LT) (“the Kennisis Lake Road Property”);
(d) An Order that, should the Respondents refuse or fail to comply with any Order directing them to demolish the open post and beam building approximately 26 feet by 64 feet, the addition to the Chip Processing Plan approximately 20 feet by 60 feet, the addition to the sawmill approximately 20 feet by 50 feet and the EcoLog Mill structure approximately 46 feet by 100 feet, the Applicants be authorized to demolish the log building constructed without the benefit of a Building Permit, with the costs of such demolition to be added to the tax roll for the Kennisis Lake Road Property;
(e) A mandatory Order that the Respondents demolish and remove, within 30 days, the addition to the logging museum, constructed without the benefit of a Building Permit on their property legally described as PT LT 18-20 CON 2 HAVELOCK AS IN H23090 N OF PT 1, 19R756 & S OF EAST KENNISIS DR; DYSART ET AL, being all of the lands in PIN 39260-0260 (LT) (“the Redkenn Road Property”);
(f) An Order that, should the Respondents refuse or fail to comply with any Order directing them to demolish the addition to the logging museum, the Applicants be authorized to demolish the addition to the logging museum constructed without the benefit of a Building Permit, with the costs of such demolition to be added to the tax roll for the Redkenn Road Property;
(g) A permanent injunction restraining the Respondents, their guests, tenants, invitees, employees or others from entry into, or occupancy of, all structures and additions built without the benefit of a Building Permit until such time as the Respondents have obtained Building Permits and any necessary Change of Use Permits;
(h) A permanent injunction restraining the Respondents and their agents from conducting concerts, music festivals, or any type of public assembly at the Logging Museum located at PT LOT 18-20 CON 2 HAVELOCK AS IN H23090 N OF PT 1, 19R756 & S OF EAST KENNISIS DR; DYSART ET AL, being all of the lands in PIN 39260-0260 (LT).
[90] The parties have agreed that costs are to be determined by way written submissions. Counsel shall exchange within the next 14 days a concise two-page summary as to costs together with Bill of Costs, Costs Outline, and Reply and any applicable authorities. Those costs submissions are to be delivered to my judicial assistant at Barrie within the said next 14 days.
DiTOMASO J.
Released: February 5, 2016
[^1]: Application Record Tab 2F, photo [^2]: Application Record Tab2E, photo [^3]: Application Record Tab 2B, photo [^4]: Undertakings Brief Tab 2 [^5]: Application Record Tab 2I, photo [^6]: Application Record Tab 2I [^7]: Undertaking Brief Tab 4, Engineering Drawing – Processing Bldg - Plan [^8]: Application Record Tab 2E [^9]: Metro 1 Development Corporation v. Toronto (City), 2014 ONSC 4225 (ON SC) [^10]: Building Code Act, 1992, SO 1992, c. 23, s. 25 (“BCA”) [^11]: McKinlay et al v. Therrien et al, 2002 18502 (ON SC), paras. 2-3; Chang v. City of Toronto, 2009 45438 (ON SC), paras. 2-4 [^12]: Ayers Development Corporation v. London (City), 2005 2746 (ON SC); Re Woodglen & Co. Ltd and City of North York et al., 1984 2044 (ON SC); Toronto District School Board v. Toronto (City), 2014 ONSC 3605 [^13]: Ayers Development Corporation v. London (City), supra; Elbasiouni v. City of Brampton, 2013 ONSC 5261 (ON SC); Elbasiouni v. City of Brampton, 2015 ONSC 1801 (ON SC DC) [^14]: 2014 ONSC 4225 [^15]: Metro 1, supra at para. 34 [^16]: Metro 1, supra at para. 39 [^17]: Ontario Building Code, 1997 s. 2.4.1.2(1)(d) [^18]: Section 11.2.1.2 [^19]: The Reply Affidavit of Dan Sayers sworn October 13, 2015, Tab 1 [^20]: Building Code Act, 1992, S.O. 1992, c. 23, s. 8(1) [^21]: Miraculous Growth Investments Inc. v. Safety Codes Council, 2010 ABQB 620; Miraculous Growth Investments Inc. v. Safety Codes Council, 2011 ABCA 335; Fraser-Cheam (Regional District) v. Zaandam Management Ltd., 1992 381 (BC SC); Ontario Building Code, Part 10 – Change of Use [^22]: Ontario Building Code,, s. 2.1.1.2 (Application of Part 2, 3, 5 & 6 of the Building Code); Ontario Building Code, s. 2.4.1.2 (Change of Use); Ontario Building Code, s. 3.1.2. – Classification of Buildings Under the Building Code; Ontario Building Code, 1997 – Part 10 – Change of Use [^23]: Re Weir and Collingwood et al., 1979 1719 (ON SC); Immeubles Jacques Robitaille v. Quebec City), 2014 SCC 34 (SCC); Elbasiouni v. City of Brampton, supra. [^24]: Delta (Corporation) v. Stevens, 2014 BCSC 249 (BC SC); North Vancouver (District) v. Guest, 2011 BCSC 1790 (BC SC); The Corporation of the Township of Langley v. Jesiak, 2008 BCSC 123 (BC SC) [^25]: Sunnybrae Springbrook Farms Inc. v. Township of Trent Hills, et al., 2010 ONSC 1123