Court File and Parties

2017 ONSC 3279 COURT FILE NO.: 572/17 DATE: 2017/05/31 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1803275 Ontario Limited and Ludmila A. Dencev, Applicants AND: The Corporation of the City of London and George Kotsifas, Chief Building Official for the Corporation of the City of London, 2363289 Ontario Inc. and Youssef Lavie, Respondents

BEFORE: Rady J.

COUNSEL: Laura McKeen, counsel for the applicants Nicole D. Hall, counsel for the respondent, the Corporation of the City of London and George Kotsifas, Chief Building Official for the Corporation of the City of London Analee Ferreira, counsel for the respondent, 2363289 Ontario Inc. and Youssef Lavie

HEARD: May 12, 2017

Endorsement

Introduction

[1] The applicants ask for an order rescinding the issuance of Conditional Foundation Building Permit No. 16258686 by the Corporation of the City of London to the respondent numbered company and Mr. Lavie. They rely on s. 25 of the Building Code Act. At the conclusion of the hearing, I advised the parties that the application was dismissed for reasons that would follow.

The Issue

[2] The applicants are the owners of a property located at 350-352 Dundas Street, where there is a two storey building currently leased and occupied by a restaurant and a salon on the main floor. Two residential apartments are located on the second floor.

[3] Immediately to the east of the applicants’ property is a parcel owned by 2363289 and Mr. Lavie, known municipally as 356 Dundas Street. The owners propose to build a six storey affordable housing apartment dwelling on the property. The proposed building is designed with a zero metre set back from the boundary between the two properties.

[4] The applicants say the city failed to properly evaluate the proposed building`s location because it will have a negative effect on 350-352 Dundas. In particular, it will block the easterly windows of one of the apartments on the second floor, impeding light and airflow and causing a variety of safety issues.

[5] As a result, they seek an order rescinding or staying the operation of the Conditional Foundation Building Permit issued by the city “until compliance with applicable law is established for the exterior wall of the proposed building.”

The Evidence

[6] The applicants rely on two affidavits sworn by Dan Dencev, the property manager of their building.

[7] The City relies on two affidavits sworn by Peter Kokkoros the Deputy Chief Building Official (CBO). The other two respondents filed an affidavit from Yossef Lavie.

[8] The parties’ respective records contain many exhibits, including photographs of the subject properties, drawings of the proposed buildings, the application for the building permit, the conditional building permit, the relevant bylaw notices respecting a zoning bylaw amendment, and other pertinent documents.

The Parties’ Positions

[9] The applicants` position is summarized at paragraph four above. They say that the CBO should not have issued the building permit because it is not compliant with applicable law, because:

• site plan approval, which is a prerequisite to the issuance of a building permit, was not obtained when it was issued;
• the zero metre set back would not be compliant with the site plan control bylaw; and
• the zero metre set back does not comply with the zoning bylaw.

[10] The City’s position can be summarized as follows:

• the application is moot because the City has now issued a building permit for the project and no appeal has been taken from that action;
• site plan approval is a prerequisite for the issuance of a building permit under s. 8(2) of the Building Code Act but is not for a conditional permit issued under s. 8(3);
• the applicants received notice of the proposed rezoning of 356 Dundas Street and made no appeal to the Ontario Municipal Board, which is the appropriate appeal route; and
• in any event, the zero metre setback pre-existed rezoning and is the existing setback for all properties located in the Downtown Area (DA) zone in the City, which includes these two properties.

[11] The remaining defendants adopt and rely on the City’s submissions. They also submit that the CBO must issue a permit once compliance with the Building Code Act and other applicable law (as defined) is shown. Further, and the City also said, the CBO’s decision is to attract deference and is measured on a reasonableness standard. I note that the applicants did not address the standard of review.

The Law

The Statutory Framework

[12] The relevant sections of the Building Code Act, 1992, S.O. 1992, c. 23, as amended are reproduced below:

8. (1) 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. (1.1) An application for a permit to construct or demolish a building may be made by a person specified by regulation and the prescribed form or the form approved by the Minister must be used and be accompanied by the documents and information specified by regulation. (2) The chief building official shall issue a permit referred to in subsection (1) unless, (a) the proposed building, construction or demolition will contravene this Act, the building code or any other applicable law… [1] (3) Even though all requirements have not been met to obtain a permit under subsection (2), the chief building official may issue a conditional permit for any stage of construction if, (a) compliance with by-laws passed under sections 34 and 38 of the Planning Act and with such other applicable law as may be set out in the building code has been achieved in respect of the proposed building or construction; (b) the chief building official is of the opinion that unreasonable delays in the construction would occur if a conditional permit is not granted; and (c) the applicant and such other person as the chief building official determines agree in writing with the municipality, upper-tier municipality, board of health, planning board, conservation authority or the Crown in right of Ontario to, (i) assume all risk in commencing the construction, (ii) obtain all necessary approvals in the time set out in the agreement or, if none, as soon as practicable, (iii) file plans and specifications of the complete building in the time set out in the agreement, (iv) at the applicant’s own expense, remove the building and restore the site in the manner specified in the agreement if approvals are not obtained or plans filed in the time set out in the agreement, and (v) comply with such other conditions as the chief building official considers necessary, including the provision of security for compliance with subclause (iv).

9. (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.

[13] Regulation 332/12 under the Building Code Act provides:

1.4.1.3 Definition of Applicable Law

1. For the purposes of clause 8 (2)(a) of the Act, applicable law means, a) the statutory requirements in the following provisions with respect to the following matters: (xx) section 41 of the Planning Act with respect to the approval by the council of the municipality or the Ontario Municipal Board of plans and drawings… [ie. site plan approval] 1.31.1.5. Conditional Permits (1) The chief building official shall not issue a conditional permit for any stage of construction under subsection 8(3) of the Act unless compliance with the following applicable laws has been achieved in respect of the proposed building or construction…

[14] None of the applicable laws that are then set out apply here. And notably, 1.31.1.5 does not include s. 41 Planning Act compliance.

Jurisdiction

[15] An appeal lies from an order or decision of a CBO to a single judge of the Ontario Superior Court of Justice. A further appeal lies to the Divisional Court: Building Code Act, ss. 25(1), 26.

The Standard of Review

[16] On an appeal from a decision of the CBO, the standard of review is correctness for questions of law and reasonableness for questions of fact and questions of mixed fact and law [2]. Municipal planning and zoning are specialized areas which fall within the expertise of the CBO. Most determinations made by CBOs are questions of mixed fact and law and are entitled to deference on appeal [3].

Analysis

Mootness

[17] There is merit in the respondents’ contention that the application is moot because no appeal was taken from the subsequent decision to issue the building permit under s. 8(2). I would have thought that this latter decision would supercede the conditional permit issued pursuant to s. 8(3). Nevertheless, I heard the parties’ submissions on the merits and do not consider it necessary to deal with the issue of mootness.

The Need for the Site Plan Approval

[18] The applicants’ contention that site plan approval is a prerequisite to the issuance of the conditional permit is not correct. As the regulations make clear, site plan approval is required before a building permit under s. 8(2) of the Act can issue. There is no such requirement under s. 8(3). I note parenthetically that site plan approval was granted prior to the s. 8(2) permit being granted.

[19] Therefore and at the risk of repetition, the definition of applicable law in the regulation differs between s. 8(2) and s. 8(3). As already noted, s. 8(3) does not oblige the CBO to consider s. 41 of the Planning Act or the site plan control bylaw before issuing a conditional permit.

Downtown Area Zoning

[20] At its core, the applicants’ complaint is in respect of the zero metre setback. However, it is the existing setback for all properties in the DA zone in the City of London. When the property was being rezoned, and contrary to the applicants’ contention, they received notice. They did not appeal to the Ontario Municipal Board, which would have been the appropriate avenue of appeal.

[21] The applicants rely on the Site Plan Control Bylaw (C.P.-1455-541) which incorporates a Site Plan Design Manual as Schedule 1. Section 2.5 of the manual provides as follows:

Multi-Family Residential Setbacks and Separation Spaces

Separation spaces generally refers to the space between buildings on the same site. Setback generally refers to the space between a building and the street line or property line and thereby determines the spaces between buildings on the site and adjacent properties. If balconies are included in the design, setbacks and separation spaces are measured from this face. Separation is also required for fire protection under the Ontario Building Code.

The objectives or providing distances between buildings are as follows:

(a) Daylight/Sunlight – Space should be provided around dwellings to ensure the provision of daylight. It is also desirable to provide for direct sunlight to habitable areas of each dwelling unit, if possible, throughout the year. New housing should be located so as not to unduly deprive existing dwellings and private outdoor spaces in the surrounding areas of adequate sunlight or daylight.

(b) Ventilation – The space around the unit should be sufficient to permit natural ventilation of the dwelling.

[22] Section 20 of the Bylaw deals specifically with the London Downtown area. S. 20.3 provides:

REGULATIONS No person shall erect or use any building or structure, or use any land or cause or permit any building or structure to be erected or used, or cause or permit any land to be used, in any DA Zone, variation except in conformity with the regulations as set out below or in Table 20.3 or as set out on the Zoning Maps. (emphasis added)

1. FRONT AND EXTERIOR SIDE YARD DEPTH (MINIMUM/ MAXIMUM) For all properties abutting Dundas Street and Richmond Street, 1 metre (3.3 feet) for each 2 metres (6.6 feet) of building greater than 15 metres (49.2 feet) in height above the 15 metres (49.2 feet) height. For all portions of the building between 0.0 metres and 15 metres (49.2 feet) in height, the maximum setback permitted shall be 3.0 metres (9.8 feet).

2. BUILDING FORM Buildings may take the form of shopping centres mixed use buildings or stand-alone structures. (emphasis original)

3. RESIDENTIAL COMPONENT OF BUILDINGS The required setback for the residential portion of buildings shall be 1.2 metres (3.9 feet) per 3 metres (9.8 feet) of main building height or a fraction thereof above 15 metres (49.2 feet).

[23] Table 20.3 provides:

REGULATIONS FOR DA ZONE VARIATIONS Column A B C 1 ZONE VARIATIONS DA1 DA2 2 PERMITTED USES See Section 20.2(1) See Section 20.2(2) 3 LOT FRONTAGE (m) MINIMUM 3.0 4 ALL YARDS DEPTHS (m) MINIMUM 0.0 See Sections 20.3(1) And 20.3(3) 0.0

[24] The applicants submit that s. 2.5 of the Site Plan Design Manual requires that distances between buildings be considered to ensure adequate light and ventilation between abutting properties. This, they say, was not done.

[25] The applicants also submit there is an inconsistency between s. 20.3 of the Bylaw and the Table because under Category DA1, the provisions of s. 20.3(1) and (3) are to be considered. Category DA2 does not contain the same requirement.

[26] I see no inconsistency. The provisions of s. 20.3 are disjunctive and there is no support or reason for the word “or” to be read as “and”. The regulation clearly provides that land in the DA zone cannot be used except in conformity with the Regulations or in Table 20.3 or as set out on the zoning maps. With respect only to property in the DA1 zone, the Table requires the consideration, interpretation or application of s. 20.3(1) and s. 20.3(3). As already noted, the proposed building falls in the DA2 zone. No consideration of s. 20.3(1) and (3) is required.

[27] Further, s. 2.5 of the Design Manual stipulates that a separation space refers to the space between buildings on the same site and not separation space between abutting properties.

[28] Finally, Mr. Kokkoros deposes in his supplementary affidavit that:

10. Lastly, I am advised by Mr. Pompilli [the City’s Manager of Development Planning] and verily believe that Table 20.3 of the City of London Zoning By-Law Z.-1 sets out the zoning regulations for the DA Zone variations, DA1 and DA2. Table 20.3 provides for 0m setbacks within the DA2 zone and only requires consideration, interpretation or application of 20.3(1) and 20.3(3) for the DA1 zone. The proposed building is not the DA1 zone and in my opinion I was not required to consider, interpret or apply s. 20.3(3).

[29] I note that Mr. Kokkoros was not cross examined on his affidavit and his evidence is unchallenged.

[30] I am not persuaded that there is any basis to interfere with his decision to issue the Conditional Building Permit. It falls within the range of reasonable decisions. It satisfies the requirements of justification, transparency, intelligibility.

[31] The applicants’ public policy argument is misplaced. Since the appeal was argued, the Divisional Court released its decision in Wheeler v. Syrowik, 2017 ONSC 2901, which bears a similarity to this case. It was an appeal of a decision of a single judge of the Superior Court of Justice who allowed an appeal from a decision of a CBO to issue a building permit under s. 8(2) of the Building Code Act. A similar kind of public policy argument had been advanced before the appeal judge and found favour. In allowing the appeal, the panel noted:

[72] I agree that the use made by the appeals judge of the Official Plan and the OMB decision was to import land use planning and policy considerations into his decision. He was clear that this was what he was doing:

I believe it is appropriate when examining the zoning bylaw and the official plan to take an overview as to whether or not this application is desirable from a planning and public interest point of view…

This is wrong in principle. This is not the role of the CBO in considering an application for a building permit. It is likewise not the role of a judge sitting on appeal from a decision of the CBO to issue a building permit. If an application complies with s. 8(2) of the Building Code Act, then the permit must be granted, regardless of the CBO’s or the judge’s view of the desirability of the project. If the application does not comply with s. 8(2), then the permit must be denied, regardless of the CBO’s or the judge’s view of the desirability of the project.

[32] It seems to me that the same analysis applies equally to s. 8(3) applications.

[33] For these reasons, the application is dismissed. The parties may make brief written submissions on cost, first from the respondents within two weeks and the applicants two weeks later.

“Justice H. A. Rady” Justice H. A. Rady Date: May 31, 2017

[1] Subsections (b) to (f) are not included here because none apply.

[2] Toronto District School Board v. Toronto (City), 2014 ONSC 5494 (Div. Ct), para. 18; Berjawi v. Ottawa (City), 2011 ONSC 236, [2011] O.J. No. 379 (S.C.J.), para. 12; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R 190; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R 770.

[3] Southgate Public Interest Research Group v. Southgate (Township), 2012 ONSC 5383, paras. 62-64; Vandenheede Farms Ltd. v. Norfolk (County) Chief Building Official, 2011 ONSC 1525, paras. 6-13; Runnymede Development Corp. v. 1201262 Ontario Inc. (Ont. S.C.J.), paras. 12-14.