Court File and Parties

COURT FILE NO.: CV-13-1084-00 ORIGINAL DATE: 20170403 AMENDED DATE: 20170404

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 Steven O’Melia, Counsel for the Ontario Municipal Board

Amended Case Management Endorsement

Introduction

[1] This endorsement addresses case management issues in relation to the above referenced matter.

[2] The Appellant appealed the decision of the Chief Building Officer to revoke a building permit issued for construction on his property (revocation order). Pursuant to the provisions of the Building Code, the Appellant appealed the revocation order to the Superior Court of Justice.

[3] I upheld the revocation order: see Elbasiouni v City of Brampton 2013 ONSC 5261. The Appellant appealed my decision. The Divisional Court upheld my decision and remitted the matter back to the Superior Court of Justice for the purpose of setting a remediation timetable: Elbasiouni v City of Brampton 2015 O.J. No. 1375; 2017 ONSC 1801.

[4] On September 30, 2016, I set a final remediation timetable for this matter (the remediation order). This remediation order is determinative of this appeal. Therefore, I am no longer seized with this matter.

[5] There was a hearing on March 3, 2017 to set a date for a Judicial Review Application brought by the Appellant. The Court interrupted the hearing. As a result, the parties did not complete their submissions and the Court did not have the benefit of all of their submissions on some important procedural matters.

[6] Therefore, to ensure the proper administration of justice, the March 3, 2017 proceedings, only as it relates to setting a date for the judicial review application, is struck. The return date of April 18, 2017, to commence the judicial review application is vacated.

[7] The parties are to contact the Superior Court Trial Coordinator for Brampton to set a new date for another judge of the Superior Court to consider the important procedural issues raised by the parties in relation to setting a date for the Appellant’s judicial review application.

The Principle of Finality and Litigation by Instalment

[8] The remediation order is a product of appeals to the Superior Court of Justice and the Divisional Court. There have been two previous remediation timetables which were either varied or set aside by this Court. These previous timetables are now defunct.

[9] The September 30, 2016 remediation order is determinative of the Appellant’s appeal of the revocation order. There are stringent timelines in place and the consequences for failure to adhere to the timelines are clearly articulated.

[10] Since the Divisional Court dismissed the Appellant’s appeal, there have been a number of motions tackling the same issue in different ways.

The doctrine of res judicata prohibits the litigation of matters already decided. Parties are required to put forward the entirety of their case in a single action. Toronto General Trusts Corporation v Roman, [1963] 1 O.R. 312(C.A.) aff’d [1963] S.C.R.; Aristocrat v Aristocrat (2004), 73 O.R. (3d) 275 (C.A.): See Elbasiouni v City of Brampton, 2015 ONSC 6149, paragraph 56.

[11] A motion was brought by the Appellant to reopen the appeal to argue a new issue and to introduce a new piece of documentary evidence (Exhibit H). This motion was granted on the basis that to do otherwise will constitute a miscarriage of justice. The new piece of evidence was found not to be authentic. See Elbasiouni v City of Brampton, 2015 ONSC 6149, at paragraph 97.

[12] The Appellant’s new issue raised on appeal was dismissed as res judicata and also on its merits: See Elbasiouni v City of Brampton, 2017 ONSC 1566.

[13] The details of the September 30, 2016 remediation order were explained in Elbasiouni v City of Brampton, 2017 ONSC 1566 at paragraphs 10 and 11 as follows:

The effect of my decision was that the stay of the CBO revocation order remains for a period, and the Appellant has an opportunity to remediate the deficiencies in his building permit application. The Appellant is also permitted to continue to use the property as a two-unit dwelling. On September 30, 2016, I ordered a remediation timetable (“the Timetable Order”). The effect of the Timetable Order is that the CBO’s revocation order, dated February 20, 2013, is stayed pending the Appellant’s implementation of one of the following three options, as outlined in paragraph 1 of the Order:

1. The Appellant may seek a demolition permit for the property;
2. The Appellant may make an application to the committee of adjustment to seek the three minor variances required to bring the property into compliance with the R1B(3)-153 zoning requirement, as listed in the Zoning Non-Compliance checklist attached hereto as schedule A [September 30, 2016, endorsement of Barnes J.];
3. The Appellant may submit to the City of Brampton, Building Division, an application for a revision payment, which provides the necessary plans, drawings and other materials required to bring their existing structure into compliance with the applicable R1B (3)-153 zoning requirements, and which satisfactorily addresses the issues listed in that zoning Non-Compliance checklist attached hereto as schedule A [September 30, 2016, endorsement of Barnes J.]

Paragraph 2 of the Timetable Order provides that if the Appellant fails to exercise one of the three options or any other non-court sanctioned options, within 90 days, this failure shall not form a basis to delay or vary the remediation timetable. Paragraph 3 provides that if the Appellant complies with paragraph 1 of the Order, the revocation order shall be stayed until May 30, 2017 and no more extensions shall be granted by the court. This is the third remediation timetable in this case as a result of ongoing disputes between the Appellant and the City.

[14] The September 30, 2016 remediation timetable order is dispositive of the Appellant’s appeal of the revocation order. Therefore, I am no longer seized with this matter.

March 3, 2017 – Judicial Review Application Set Date Hearing

[15] The Appellant seeks to commence a judicial review application of a decision of the Ontario Municipal Board. The parties appeared before me to set a date for the hearing. During the hearing, the Respondents sought the dismissal of the Appellant’s judicial review application on procedural grounds.

[16] In addition, the Appellant seeks to commence a judicial review of an Ontario Municipal Board decision that relates to a now defunct remediation timetable of April, 2015. Therefore, a relevant consideration is whether the judicial review application sought to be brought by the Appellant is moot. I do not make any such determination at the current time.

[17] There is reason to question whether the relief sought by the Appellant in his application to the Committee of Adjustment and appeal to the Ontario Municipal Board complies with the remediation order. I do not make any such determination at this time.

[18] During the hearing, the Court thought it prudent to interrupt the proceedings. Therefore, the parties did not have the opportunity to complete their submissions and the Court did not have the benefit of considering the fulsome submissions of the parties. Under these circumstances, it is in the interest of justice and the proper administration of justice, for the March 3, 2017 proceedings, relating only to the issue of setting a date for a judicial review application, to be reopened for consideration by another judge of the Superior Court of Justice: See Castlerigg Investments Inc. v Lam (1991), 2 O.R. (3d) 216 (General Division) at paras. 9, 17, 22; Elbasiouni v City of Brampton, 2015 ONSC 6149, at paragraphs 54-58 and Tsaoussis (Litigation Guardian of) v Baetz (1998), 41 O.R. (3d) 257, at para. 47 (C.A.), leave to appeal refused [1998] S.C.C.A. No. 518.

[19] Therefore, the March 3, 2017 proceedings, on the issue of the judicial review application only, is struck. The parties shall contact the trial coordinator for the Superior Court of Justice, City of Brampton and set a date for a new hearing on the issue of setting a date for a judicial review hearing before another judge of the Superior Court of Justice.

[20] Therefore, paragraphs 5 to 13 of my endorsement cited as Elbasiouni v City of Brampton, 2017 ONSC 1540 are deleted and that endorsement is varied accordingly. Paragraphs 1 to 4 of my March 9, 2017, endorsement are deleted and that endorsement is varied accordingly.

Barnes, J.

DATE: April 4, 2017