Court File and Parties
Court File No.: CV-13-1084-00 Original Date: 20160909 Amended Date: 20170308
Superior Court of Justice – Ontario
Re: Ahmed Elbasiouni v. The Chief Building Official (CBO) The Corporation of The City of Brampton
Before: Barnes, J.
Counsel: Ahmed Elbasiouni, Self-Represented, Appellant Charles A. Painter, Counsel for the Respondents
Heard: September 09, 2016
Endorsement
Introduction
[1] The City of Brampton and the Chief Building Official of the City of Brampton (CBO) (the Respondents) allege that Ahmed Elbasiouni (the Appellant) is in contempt of my order dated September 9, 2013.
Background Facts
[2] I dismissed the Respondent’s motion on September 9, 2016.
[3] The dispute stems from disagreements relating to the Appellant’s property with the municipal address of 443 Centre Street in the City of Brampton (the property).
[4] The CBO granted and then revoked legal non-conforming use status for the property. The CBO granted and then revoked a building permit for the construction of a duplex on the property.
[5] The Appellant appealed the decision of the CBO to this court. I upheld the revocation of the building permit but restored the legal non-conforming use designation. I concluded that the proper zone for the property was R1B (3)-153.
[6] On September 9, 2013, I ordered a remediation timetable. The Appellant appealed my decision on the zone applicable to the property. I subsequently suspended the remediation timetable because of the appeal. The Divisional Court upheld my decision on March 19, 2015 and remitted the matter back to the Superior Court of Justice for the purpose of implementing a remediation timetable.
[7] On April 1, 2015, on consent, I ordered a second remediation timetable. The order contemplated that the Appellant will seek permission from the Committee of Adjustments (COA) for non-compliance with zoning requirements with the property in accordance with 3 required variances to the RIB(3)-153 zone as follows:
- To permit a front yard depth of 6 metres to the front of a garage whereas the required by-law required a minimum depth of 7 metres to the front of a garage;
- To permit a lot coverage of 43% whereas the by-law permits a maximum coverage of 40%;
- To permit a driveway on Hinchley Wood Grove located 3 metres from the projected point of intersection of two streets whereas the by-law requires a minimum 6 metres distance between a driveway and the actual or projected point of intersection of two streets: see August 31, 2015 email between CBO and Appellant, Brief of Documents of Respondents, Tab 9.
[8] The Appellant was required to seek the variations set out above and adhere to a timetable as follows:
- File Application to Committee of Adjustment (COA) by June 16, 2015;
- Hearing before COA July, 2015;
- Appeal of the Ontario Municipal Board (OMB) (if necessary) within 20 days from the decision of the COA;
- If the Appellant is successful in the application, the Appellant was to provide 10 days’ notice prior to any work resuming on the property;
- The Appellant to resume work on the property 45 days after COA or OMC approval or as agreed by counsel;
- If Appellant is unsuccessful on COA or OMB application, parties to appear before Justice Barnes for direction;
- If any steps are to be taken to protect the property, the Appellant was to provide the CBO with 24 hours’ notice before any steps are taken: See Respondent’s Document Brief Tab 9.
[9] On September 10, 2015, the Appellant applied to the COA. The COA dismissed the Appellant’s application.
[10] On October 20, 2015, the Appellant appealed the COA decision to the OMB. The OMB dismissed the Appellant’s application on April 28, 2016.
[11] The Appellant has exhausted options set out in the remediation timetable.
Law
[12] The burden of proof on a contempt hearing lies with the party alleging the contempt. The standard of proof of civil and criminal contempt is proof beyond a reasonable doubt: Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 S.C.R. 217.
Position of the Parties
[13] The Respondents submit that the Appellant did not comply with the Order because his application to the COA or OMB did not seek permission for the 3 variances contemplated by the Order.
[14] The Appellant submits that after the Order was made he had further discussions with the CBO. Based on those discussions it was his understanding that he was not required to apply to the COA for the enumerated 3 variances and therefore he has not breached the Order.
[15] The Appellant submits that this court has been misled for the last three years by the City of Brampton and wishes the court to order the CBO to attend to provide evidence on the matter. If the Appellant is correct, I am very troubled by this but this is not the issue to be decided at this time.
[16] This case was remitted to me by the Divisional Court to address the remediation timetable. In practical terms, even if this court were to reach a conclusion in accordance with the Appellant’s allegations, it would not resolve the issue of remediation. This matter is three years old and finality is required. This matter cannot languish in the Superior Court.
Analysis
[17] The Appellant applied to the COA for two variances:
- To permit no requirement for lot coverage
- To permit a maximum fence height of 3.5 metres (11.48 feet) along a portion of the rear lot line and the interior side lot line
[18] These variances are not in accordance with the Order and I am satisfied beyond a reasonable doubt the Appellant is in breach of the Order. There is, however, a wrinkle in this case. The decision of the CBO was appealed to the Superior Court. The CBO is a party to this litigation. As such, an order of this court binds all the parties to this litigation, i.e. the Appellant and all the Respondents (City of Brampton and the CBO). All agents of the parties acting in relation to this litigation are also bound by the Order.
[19] It is open to the parties to have discussions to vary the terms of the Order, however, the parties must have leave of the Court to vary the Order in accordance with their agreement.
[20] The CBO and the Appellant had discussions after the Order was made. The Appellant submits that as a result of agreements with the CBO, he made the application to the COA and OMB. The Respondents submit that there was no such agreement and that the Appellant’s application is not in compliance with the Order.
[21] The CBO’s evidence on the contempt hearing supports the Appellant’s position that these discussions took place, albeit in an effort to find solutions. However, these discussions occurred without participation of the City of Brampton and have only resulted in confusion. In addition, leave was not sought from the Court to vary the order pursuant to any agreement and the issue of whether there was ever any agreement is in dispute.
[22] Therefore, although the Appellant is technically in breach of the Order, it is not in the interest of justice to continue this contempt hearing. Therefore, the contempt hearing is halted and the Respondents’ motion is dismissed.
Conclusion
[23] Given the CBO testimony on the contempt hearing, I conclude that the City is not in sync with its counsel the "left hand does not know what the right hand is doing". Had this not been the case, perhaps the contempt hearing would not have been necessary. Going forward, there shall be no discussion between the CBO and the Appellant in the absence of counsel while this litigation is ongoing.
[24] The parties shall have discussions to determine the way forward by September 14, 2016. Such discussions shall include the Appellant, City of Brampton and the CBO. The parties shall report back in writing to the court by September 19, 2016.
[25] Should the parties fail to reach an agreement, the parties shall each submit in writing suggested next steps by September 19, 2016.
[26] The court shall consider the parties’ submissions and make a final order by September 20, 2016. This timetable shall be strictly enforced by the court.
[27] The Appellant raised his own instances of alleged contempt by the Respondents. These issues, if still relevant, will be addressed upon conclusion of this matter. In regards to the issue of costs for the Exhibit H motion, the Respondents to file and serve cost submissions in seven days. Appellant to serve and file reply cost submissions in fourteen days.
Barnes, J. Released: March 8, 2017