Court File and Parties

COURT FILE NO.: CV-12-0797 DATE: 20170105 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SHAKEEL BALROOP Appellant – and – THE CITY OF QUINTE WEST Respondent

Counsel: Shakeel Balroop appearing in person J. Savini, for the Respondent

HEARD at Belleville: 05 January 2017

Reasons for Judgment

MEW J. (ORALLY)

[1] In 2004, the applicant, Shakeel Balroop, purchased a commercial building in downtown Trenton. The building had previously been used as a dollar store. The property has remained vacant ever since.

[2] The building is a two-storey structure constructed over a crawl space (basement) that is partially organized as usable space. The original and larger segment of the building was constructed in or around 1900. There were two subsequent additions.

[3] The building shares common walls with a church on one side and a retail unit with residential apartments on the second storey located on the other side.

[4] The water supply in the building was cut off in June of 2006 and the electricity supply in 2009.

[5] The respondent is the municipal authority with jurisdiction over the building. Since 2010, the respondent has received complaints from the public about possible Fire Code deficiencies, the structural integrity of the property, and mould growth in the property. People have expressed concern that they can smell mould when passing on the municipal sidewalk outside the property. These complaints led to the involvement of, initially, the Quinte West Fire Department, and subsequently, the respondent’s Property Standards Department.

[6] Acting pursuant to the provisions of the Building Code Act, 1992, S.O. 1992, c. 23 and the City’s Property Standards by-law, by-law number 09-89, the respondent’s Property Standards Officer became involved. That intervention ultimately led to the issuance of Property Standards Order number T11-022PS on 10th June 2011. I will refer to that as the “2011 Order to Remedy”.

[7] Section 15.3 (1) of the Building Code Act gives the owner of a property, which is subject to an order to remedy, a right of appeal to the City’s Property Standards Committee. The powers of the committee hearing such an appeal are set out in section 15.3(3.1):

On an appeal, the committee has all the powers and functions of the officer who made the order and the committee may do any of the following things if, in the committee’s opinion, doing so would maintain the general intent and purpose of the by-law and of the official plan or policy statement:

1. Confirm, modify or rescind the order to demolish or repair.
2. Extend the time for complying with the order.

[8] On the 21st of July 2011, the Property Standards Committee confirmed the 2011 order to remedy. No reasons were given for the decision.

[9] A further right of appeal is conferred by section 15.3(4) of the Building Code Act, which provides:

The municipality in which the property is situate or any owner or occupant or person affected by a decision under subsection (3.1) may appeal to the Superior Court of Justice by notifying the clerk of the municipality in writing and by applying to the court within 14 days after a copy of the decision is sent.

[10] The applicant did not initially exercise this right of appeal. Instead, on the 31st of August 2011, Quinte West laid charges against the applicant in the Provincial Offences Court for failing to comply with the 2011 Order to Remedy. It was not until 3 April 2012 that the applicant filed a Notice of Appeal. The parties agree that the appeal was commenced outside the 14 day window provided for in section 15.3(4) of the Building Code Act. Nevertheless, the applicant now seeks leave to proceed with his appeal.

[11] After delivering his Notice of Appeal against the 2011 Order of the Property Standards Committee, Mr. Balroop then unsuccessfully sought a stay of the Provincial Offences Court proceedings based on his pending appeal. On the 11th of December 2012, the applicant was found guilty of failing to comply with the 2011 Order to Remedy. An appeal from that conviction was dismissed by Justice Hunter of the Ontario Court of Justice on the 12th of December 2013. A further appeal to the Ontario Court of Appeal was also unsuccessful. That decision is reported at 2016 ONCA 657.

[12] In the meantime, much, if not all, of the work required by the 2011 Order to Remedy has remained outstanding.

[13] The City received further complaints. In September 2012, the City received complaints about loose bricks falling from the top of the walls of the property. The City undertook repair work in October 2012, and I quote from Mr. Lappan’s affidavit, “to ensure public safety”.

[14] On the 11th of March 2013, the City received a structural assessment report on the property from a firm of consulting engineers. The report indicated that the overall building structure was in fair condition although the structure was not fit for occupancy. Structural rehabilitation was said to be possible, however, the work that would need to be done included removal and replacement of the built up roof, removal and replacement of damaged joists, removal and replacement of the sub-floor, removal and replacement of ceiling planks, and miscellaneous structural repairs to steel and timber. The report also noted that the basement of the property was flooded at the time of inspection.

[15] On the 5th of June 2013, the City issued a further Property Standards Order number T13-012PS, which I will refer to as the “2013 Order to Remedy”. The applicant appealed that order. According to the affidavit of the respondent’s Chief Building Official, the City elected to postpone the hearing of the Property Standards appeal, pending the outcome of the applicant’s appeal of his conviction.

[16] During a follow-up inspection report of the property by City officials on the 6th of January, 2014, it was observed that the issues covered by the 2013 Order to Remedy, remained outstanding. Furthermore, there was still standing water in the basement.

[17] A further engineering report dated 4 March 2014 assessed the condition of the roof structure and made various recommendations including immediate replacement of the roof, repair and reconstruction of a damaged brick parapet with a new cap/flashing, and installation of bracing to support the front parapet. It was also recommended that the basement be drained, and based on the extent of the moisture damage observed, it was suggested that the building would need to be treated for mould as part of a future abatement program.

[18] In April 2014, after water with a depth of approximately three feet had been drained from the basement, engineering consultants conducted a structural assessment of the basement of the property. In a report dated the 29th of April 2014, the engineers identified structural concerns in the basement indicating that if mitigation was not undertaken on the property, structural movement could be expected within one to five years.

[19] Yet another Property Standards Order number R14-19PS was then issued on the 16th of May 2014, which I will refer to as the “2014 Order to Remedy.” This order, in the words of the City’s Chief Building Official, sought the same relief as the 2011 Order to Remedy and the 2013 Order to Remedy but added further remedial requirements relating to the support structures in the basement of the property, and mould remediation.

[20] The applicant appealed the 2014 Order to Remedy to the Property Standards Committee. The committee heard the matter on the 18th of September 2014. The minutes of the meeting of the Property Standards Committee reflect that the applicant was in attendance and participated in a wide-ranging discussion about the property.

[21] On the 24th of September 2014, the Property Standards Committee issued its decision confirming the 2014 Order to Remedy. The Applicant delivered his Notice of Appeal from that decision to this court on the 29th of September 2014.

[22] Nothing further of any significance had happened in relation to the appeal to this court, which was commenced in 2012 as a result of the 2011 Order to Remedy, and the subsequent confirmation of that order by the Property Standards Committee. However, the appeal of the 2011 Order for Remedy was still extant on the 6th of January 2015, and Mr. Justice Scott made an order consolidating the two appeals into one proceeding. Thereafter, Mr. Justice Tausendfreund became a de facto case manager.

[23] It would seem that without prejudice to the appeals taken by the applicant, he was prepared to undertake certain work addressed by the 2014 Order and by the various experts who had been consulted by either the City or the respondent.

[24] Tausendfreund J. made orders reflecting what the applicant was to do and timetabling inspections and delivery of reports. On the 27th of November 2015, Tausendfreund J. ordered the applicant to address two items identified in a 10 November 2015 report from Q & E Engineering Inc. by the 31st of December 2015. Those items being:

a. Repair the damage to the roof structure at the south end of the building; and b. Remove the front cladding, investigate the extent of damage to the brick masonry, and complete repairs to the brick masonry as required.

[25] In the same order, Mr. Justice Tausendfreund directed the applicant to address six further recommendations made by engineers, while making no comment on whether a building permit was required, with structural aspects to be completed by the 29th of February 2016, and the balance of the work to be completed by the 30th of April 2016. Those recommendations were as follows:

a. The Owner’s Engineer should review specifications of the new roof and verify that the roof structure is capable of carrying the actual dead weights and other Building Code specified loads; b. Complete plans and specifications for rehabilitation including the abatement of mould and other hazardous substances; c. Secure a building permit from the City for the proposed work; d. Retain a qualified contractor to complete the proposed work. The design engineer should work closely with the contractor throughout the construction phase to site verify unknown conditions and provide site instructions as required; e. The Owner’s Engineer and the City’s Building officials should also complete regular interim inspections during construction and final inspection upon completion of all work to verify that all work has been completed in accordance with the plans/specifications and site instructions; and f. The Owner’s Engineer shall submit a conformance report along with as constructed plans and documentation to the City upon completion of the project.

[26] The issues that now fall to be determined appear to me to be the following:

a. Should the applicant be permitted to proceed with an appeal from the 2011 Order; b. What is the court’s role in an appeal under section 15.3(4) of the Building Code Act, and in particular what, if any, deference is owed to the decision makers appealed from; and c. Should the orders appealed from be confirmed, varied, vacated, remitted, or otherwise dealt with.

Appeal from the 2011 Order

[27] So dealing first with the appeal from the 2011 Order, section 15.3(4) is quite explicit. It requires an appeal to be taken by notifying the clerk of the municipality in writing and by applying to the court within 14 days of the receipt of the decision of the Property Standards Committee.

[28] The record shows that a letter was sent to the applicant on the 29th of August 2011 confirming the decision of the Property Standards Committee.

[29] The applicant did not initiate his appeal until the 3rd of April 2012 when he commenced a proceeding in the Superior Court of Justice in Toronto. Even then, the Clerk of the City was not served and the fact of the appeal only came to light as a result of the motion to stay in the Provincial Offences Court proceeding.

[30] The 14 day window within which to appeal is more generous than that provided by Rule 62.01(2) of the Rules of Civil Procedure, which requires an appeal to be commenced within seven days after the making of the order appealed from unless the statute, which confers the right of appeal, provides otherwise. And although Rule 3.02 for the Rules of Civil Procedure gives the court power to extend or abridge any time prescribed by the Rules of Civil Procedure, the 14 day appeal period derives not from the Rules of Civil Procedure but rather from the Building Code Act. My attention was not drawn to any provision of the Building Code Act which would authorize the court to extend a time limit provided for bringing an appeal. Nor to any other statutory provision which would confer on me jurisdiction to extend the time within appeal under section 15.3(4) can be commenced.

[31] I would observe also that the Building Code Act confers immediate rights and responsibilities on the parties once the time within which to commence an appeal has expired. Section 15.3(7) provides:

An order that is deemed to be confirmed under (2), or that is confirmed or modified by the committee under (3), or a judge under (6) as the case may be, shall be final and binding upon the owner and the occupant who shall carry out the repair or demolition within the time and in the manner specified in the order.

[32] This provision is of particular significance, given the absence of a further right to appeal to the Court of Appeal from a judicial decision under section 15.3: Rowbotham v. Barrie (City), [2004] O.J. No. 2846 (ONCA).

[33] I am, therefore, of the view that I have no discretion to override the application of section 15.3(4). But even if I did have such a discretion, none of the usual factors which are taken into account when exercising such a discretion, would favour the applicant in this case. No adequate explanation for the delay has been provided. In fact, at all material times between the receipt of the letter confirming the decision of the Property Standards Committee and the commencement of the appeal, the applicant was represented by a lawyer. Then, having filed an appeal, no steps were taken to prosecute it until after the 2014 Order of the Property Standards Committee.

[34] Accordingly, the appeal from the 2011 Order is dismissed as being out of time.

Court’s Role and the Issue of Deference

[35] I then turn to the Court’s role and the issue of deference.

[36] In a number of decisions, it has been confirmed that an appeal to a judge under section 15.3(4) amounts to a hearing de novo as the court is given the same powers and functions as a Property Standards Officer and a Property Standards Committee: see R.K. Radbourne Building Limited v. Owen Sound (City) (2005), 7 M.P.L.R. (4th) 27 (Ont. S.C.J.); 1218897 Ontario Limited v. Toronto (City) Chief Building Official (2005), 2005 ONSC 39872, 14 M.P.L.R. (4th) 217 (Ont. S.C.J.); Swanson v. Whitchurch-Stouffville (Town) (2009), 68 M.P.L.R. (4th) 203 (Ont. S.C.J.); and Kunnreich v. Toronto (City), 2016 ONSC 6149. However, an opposite conclusion was reached in Anderson v. Hamilton (City) (2009), 2009 ONSC 72107, 315 D.L.R. (4th) 486 (Ont. S.C.J.).

[37] There is more of a divergence of judicial opinion on the existence of the standard of review: see generally the article by Christopher J. Williams, Annotation to Swanson v. Whitchurch-Stouffville and Anderson v. Hamilton (City) found at (2009) 68 M.P.L.R. (4th) 229.

[38] In Swanson, at para. 44, Mr. Justice Lauwers noted that the perspective on the standard of review is necessarily different where the legislature has signalled its desire that the court play a substantial supervisory role, as it does when it provides for a wide open right of appeal. Although he goes on to state that there is nevertheless a standard of review applicable to decisions of a Property Standards Committee - correctness - he found that in the circumstances, no deference was owed to the decisions under appeal.

[39] By contrast in Kunnreich, Mr. Justice Faieta held that a judge hearing an appeal under section 15.3(4) is not bound by, nor need to defer to, the opinions or findings made by an officer or a committee. He continued at para. 11 of that decision,

Further, given that the appeal hearing before this Court is a de novo hearing this Court is not reviewing the decision of the Committee but rather comes to its own conclusions based on the evidence adduced at the hearing of the appeal in light of the relevant provisions of the Act regarding whether an officer’s Order should be confirmed, modified or rescinded under s. 15.3(6) of the Act. Accordingly, the question of whether the standard of review in respect of the Committee’s decision is correctness, correctness and reasonableness, or reasonableness is irrelevant.

[40] At the risk of muddying already clouded waters, I take a slightly different view to those of my colleagues. First, I agree that an appeal hearing under section 15.3(4) can be a hearing de novo. However, it is quite clear from a review of the cases that the property owners who appeal do not necessarily dispute all aspects of an order made by Property Standards Committee. In some of those cases, the issue, by the time the appeal was heard, was the extent to which the owner was still in default of the order and whether the owner should be relieved from further compliance by varying the order or otherwise allowing the appeal. Such a determination could not be made without allowing further evidence to be adduced that was not before the Property Standards Committee.

[41] If one were to take the approach that was followed in Anderson and proceed only on the record that was before the Property Standards Committee, there would be little incentive to narrow the scope of the dispute between the time of the Committee’s decision and the hearing of an appeal.

[42] More importantly, if the Legislature had intended to eliminate or restrict the ability of a judge hearing an appeal under section 15.3(4) to receive evidence that was not before the Property Standards Committee, it would have said so (I emphasize at this point the City did not take the position that there should be any limitation on my ability to receive fresh evidence, but having reviewed the cases, I felt it appropriate to deal with that issue because it appears to be a live one from the decisions that I have reviewed). Rather, the judge may determine to hear the case afresh, admit some or all of the record used before the Committee or craft some other evidentiary arrangement to suit the justice of the case before him or her. Providing a wide open appeal process also provides a safeguard against the failures of due process on the part of the officer or the Committee, and against decisions influenced by improper considerations.

[43] Much ink has been spilled on the standard of review issue. I would not go as far as my colleague, Mr. Justice Faieta, and find that the standard of review is irrelevant, but surely it comes down to this: if the judge hearing the appeal concludes that the Property Standards Committee was wrong, either because a mistake was made or because the judge simply sees things differently, then the appeal will be allowed. If, on the other hand, the judge concludes that the Committee’s decision was correct, the court will not interfere.

[44] On the issue of deference, Mr. Justice Faieta notes in Kunnreich that the court need not defer to the opinion or findings made by the Property Standards Officer or a Property Standards Committee. I agree. However, that does not mean that there should never be deference.

[45] Even where an appellate court or tribunal is given full power to review the facts or law applicable to a particular circumstance, it should approach a decision under review with respect and caution. This is particularly so where the person or body appealed from had a particular advantage, such as technical expertise or the opportunity to assess the credibility of witnesses. The independence of the entity appealed from and the quality of its decision are also relevant factors. The more impressive and well-reasoned the decision, the less likely that a court should interfere with or overrule it. Nor should a court acting in an appellate capacity unduly tinker with the periphery, rather than the core of such a decision.

[46] Ultimately, the extent of the consideration an appeal judge considering a general power of appeal gives to the decision appealed from is a matter for his or her own judgment: the judge has the responsibility of arriving at his or her own assessment of the merits of the case.

[47] Regardless of the extent to which an appeal judge defers to the decision of the body appealed from, the appellant bears the onus of satisfying the appeal court that it should differ from the decision under appeal: see Hamilton (City) v. Perry (2010), 69 M.P.L.R. (4th) 111, also reported at 2010 ONSC 764, at para. 5; for a more general common law authority on the approach that should be taken where there is a general right of appeal see Austin Nichols & Co. v. Stichting Lodestar, 2007 NZSC 103 at para. 5.

[48] In the present case, few of the factors that might attract judicial deference are present.

[49] The Property Standards Committee consists of individuals appointed by the City Council to hear appeals under the City’s property standards by-law. The majority of the members of the City of Quinte West Property Standards Committee appear to be City councillors. In fact, the Mayor is a member, although the minutes of the meeting that took place on the 18th of September 2014 indicate that he sent his regrets. The Committee has no special expertise. Although required by the Building Code Act to “hear the appeal” (section 15.3(3)), the process engaged in by the Property Standards Committee in the present case was far closer to a committee meeting, which the applicant was given the opportunity to participate in, than a hearing conducted by a quasi-judicial tribunal. And while the minutes of the meeting disclose that a full and frank exchange of views occurred, the Committee’s decision was a letter which simply announced that the 2014 Order to Remedy had been confirmed. The minutes record that the meeting at which the appeal was discussed lasted for approximately 24 minutes, at the conclusion of which, a motion was proposed to confirm the order to remedy and that the motion was carried.

[50] No reasons for the Committee’s decision were given.

Determination of the Appeal from the 2014 Order

[51] I then turn to a determination of the appeal from the 2014 Order. It is appropriate at this juncture that I recite the operative parts of the 2014 Order.

1. The following deficiencies as identified in the letter dated December 16, 2010 from RBJ Concepts Inc. and Mike Cooke Professional Engineer remain outstanding to date: a. Repair all damage to the roof structure (i.e. supporting end of one truss has deteriorated at the exterior masonry wall); b. Replace entire roof membrane; c. Re-point and secure upper masonry parapet facing Dundas Street West (i.e. deteriorating along the top); d. Reconstruct steel cladding and flashing (i.e. which were not well installed) and install new wider cap flashings.

A report prepared, sealed and signed by a Professional Engineer who is qualified in the field and licensed in the Province of Ontario, attesting that all of the aforementioned work (i.e. 1 a, b, c & d) has been completed to their satisfaction, must be submitted to the City of Quinte West.

2. The following deficiencies were identified during joint inspections by the City of Quinte West and Greer Galloway Group Inc.: a. The timber studs and post in the basement have been submerged in water and show significant rot at the water level. Their surface is generally soft with an estimated 5% to 15% structural capacity reduction; b. The majority of the foundation walls are of concrete masonry units while portions at the north end are of brick masonry. Along the base of the foundation walls the mortar has sustained significant freeze-thaw damage. At some locations the damage penetrates up to two inches into the wall.

A report prepared, sealed and signed by a Professional Engineer who is qualified in the field and licensed in the Province of Ontario attesting that the above two (2) items (i.e. 2 a, b) have been remedied to their satisfaction, including details regarding the structural repairs/reinforcements to the deteriorating timber and masonry, must be submitted to the City of Quinte West.

3. Severe corrosion was observed throughout the cast iron roof drain piping within the basement with several large localized perforations noted. In its present state the combined drain pipe is considered to be non-salvageable. A new roof drainage system with a proper connection to the municipal storm sewer system must be provided. A combination storm and sanitary connection is not permitted. A report prepared, sealed and signed by a professional engineer who is qualified in the field and licensed in the Province of Ontario attesting that the aforementioned roof drainage system has been installed to their satisfaction must be submitted to the City of Quinte West.

4. The standing water in the basement must be pumped out. A sump pump system must be installed and remain functional such that the basement remains free of standing water on a continual basis to maintain the structural integrity of the building’s foundation systems.

5. All mold [sic] must be remediated from the building. A report, including air sampling, prepared by a qualified environmental consultant attesting that the mold [sic] has been removed and the building remediated to industry standards and to their satisfaction must be submitted to the City of Quinte West.

6. Provide permanent ventilation for the building. The ventilation must not negatively impact any adjacent occupancy. A report prepared, sealed and signed by a Professional Engineer who is qualified in the field and licensed in the Province of Ontario attesting that the ventilation system has been completed to their satisfaction must be submitted to the City of Quinte West.

7. Operate temporary industrial dehumidifiers, ventilation or other related equipment in the building to remove the excessive moisture and strong odors [sic] (i.e. damp and/or moldy [sic]) from the building until such time as the permanent ventilation system above (ie. #6) is in place and operational.

8. Repair all penetrations and damage to the fire separations located on the east and west sides of the building to maintain their integrity (i.e. fire-resistance rating). A report prepared, sealed and signed by a Professional Engineer who is qualified in the field and licensed in the province of Ontario, or an architect licensed in the Province of Ontario, attesting that the required fire separation work has been completed to their satisfaction must be submitted to the City of Quinte West.

9. Install 3/8th thick drywall (i.e. mudded and taped) on all of the open ceiling and wall members/structures. 3/8th thick drywall (i.e. mudded and taped) must also be installed over the bare brick sections of the fire separations. A report prepared, sealed and signed by a Professional engineer who is qualified in the field and licensed in the province of Ontario attesting that they are satisfied with all of the required underlying work must be submitted to the City of Quinte West, prior to the new drywall being installed.

10. Repair all penetrations and damage to the floor structures with suitable construction materials so as to maintain the floor’s integrity and required live load rating. A report prepared, sealed and signed by a Professional Engineer who is qualified in the field and licensed in the Province of Ontario attesting that the floor repair has been completed to their satisfaction must be submitted to the City of Quinte West.

You are hereby required to complete all of the aforementioned repairs inclusive of the submission of the Professional Engineers, Architects and Environmental Consultant reports or demolish the building and clear the site of all building, structures, debris or refuse and leave it in a graded and level condition. Should you wish to demolish the building and clear the lands a complete application for a demolition permit must be submitted for approval prior to any work undertaken.

[52] As previously indicated, the 2014 Order reproduces significant portions of the 2011 Order. Item 1 in the 2014 Order is essentially the same as the corresponding item in the 2011 Order. The only material difference is the addition in Item 1(b) of the words “install drainage directed to exterior grade”. The 2011 Order also required the applicant to:

a. Empty all standing water out of the basement; b. Operate temporary industrial dehumidifiers, ventilation and other related equipment in the building; c. Clean up and remove all mould from the building; d. Provide permanent ventilation for the building; e. Repair all penetrations and damage to the fire separators located on the east and west sides of the building; f. Install 3/8” thick drywall on all of the open ceiling and wall member structures; g. Apply 3/8” thick drywall over the bare brick sections of the fire separations; h. Repair all penetrations and damage to the floor structures with a suitable construction material so as to maintain the floors’ integrity and required live load rating.

[53] The 2011 Order has not been successfully appealed and is therefore final and in effect. Furthermore, the applicant has been convicted of failing to comply with the 2011 Order.

[54] Counsel for the respondent conceded that the applicant was nonetheless at liberty to contest all of the 2014 Order, notwithstanding the incorporation in that order of many of the elements of the 2011 Order.

[55] However, to the extent that those matters contained in the 2011 Order and repeated in the 2014 Order have still not been addressed, no appeal will be entertained by me and accordingly, the applicant remains bound by the 2011 Order.

[56] So let me then turn to each of the items listed in the 2014 Order, which are the deficiencies as identified by the letter dated December 16th, 2010 from RBJ Concepts and by Mike Cooke, PEng.

Item 1: Roof Structure, Membrane, Masonry, Cladding, and Flashing

[57] The Applicant claims to have performed all of these repairs. It does indeed appear that some work has been done. In support, the applicant refers to a report of Robert Zhou of Hiland Engineering Inc. dated the 26 November 2015. This report records that a new roof system plus insulation and a roof deck has been installed. As the result of the removal of the gravel layer, which formed part of the previous roofing arrangement, the dead load of the new system is lower and accordingly, “the roof frame should be able to carry the new reduced dead load plus original design snow and live load off to the roof frame repaired.”

[58] The Hiland report also makes reference to 50% of the mould in the surface of the floor joists having been removed. With respect to the crawl space basement area, Hiland recommends a re-attendance after garbage has been removed, wood members have dried and air quality improved. The repairing of damage to the roof structure at the south-end of the building and the removal of the front cladding to investigate the extent of damage to the brick masonry and the completion of such repairs to the masonry, as may be required, were matters that were addressed in the 27 November 2015 order of Mr. Justice Tausendfreund.

[59] Quan Tan of Q & E Engineering Inc. assessed the status of these repairs in a report dated 3rd February 2016. He identified a number of key deficiencies that remained. First, though, he noted that there had been no apparent repair work to the deteriorating roof decking and rafters above ceiling level. Below the ceiling level, a new timber support system had been installed to support several ceiling joists. However, in Mr. Tan’s opinion, the new support system is not structurally sound.

[60] With respect to the masonry and related repairs, Mr. Tan noted that the cladding was not removed which prevented inspection of the masonry underneath. The Applicant claimed that the brick had been repaired and the cladding replaced. Unfortunately, there was no evidence other than the Applicant’s word to corroborate this. No further engineering report has been tendered by the Applicant to respond to the concerns expressed by Mr. Tan in his 3 February 2016 report.

[61] Because this item derives, to all intents and purposes, from the 2011 Order, I am not prepared at this juncture to say that the order is unreasonable and unwarranted. Nor am I satisfied that the order has been complied with. At a very minimum, the applicant should be providing an engineering report from an appropriately qualified professional engineer expressly attesting that all of the work identified in this item has been satisfactorily completed. The Hiland report does not do that. It does not cover all of these items, and even to the extent that it does, it is too vague and does not address the concerns subsequently expressed by Mr. Tan.

[62] For those reasons, I confirm Item 1 of the 2014 Order.

Item 2: Timber Studs, Posts, and Foundation Walls

[63] Turning then to Item 2, remedy timber studs and posts in basement, repair damage to foundation walls, provide engineering report regarding structural repairs/reinforcements to the deteriorating timber and masonry. During the course of submissions, the Applicant indicated that he no longer took issue with this item. Accordingly, Item 2 of the 2014 Order is confirmed.

Item 3: Roof Drain Piping

[64] Turning to Item 3, drain, repair and replacement. The Applicant takes the position that repairs to the drains have been effected and are sufficient. No engineering report has been presented by the Applicant to confirm this. In a report dated 19 May 2016, Mr. Tan of Q & E expresses the opinion that the damaged roof drain pipe has not been properly repaired. He notes the application of what appears to be asphalt paint to one area of the pipe. He also observed an area with a perforation of the pipe. He concludes that a proper and complete repair of the pipe would be an integral part of the work necessary to help keep the basement dry. Painting directly over deteriorated material is not an effective means of protection.

[65] I have no reason not to accept the evidence from Mr. Tan. Item 3 of the 2014 Order is therefore confirmed.

Item 4: Standing Water in Basement

[66] Item 4 deals with removal of standing water in the basement. There is no question that from time to time the basement is flooded. Water up to three feet in depth has been observed. The applicant has hired a gas powered sump pump to remove water from the basement. That is only a temporary solution. There is no electricity supply to the building, accordingly there is no continuously operating pump. The order calls for the installation of a sump pump system. The present ad hoc arrangement is not a system. The applicant attempted to deflect responsibility for dealing with the basement water situation by claiming that the water was coming in from the City drain and accordingly that it was the respondent’s fault that his basement keeps flooding. This assertion is not backed up by any evidence other than the applicant’s word. I do not accept that the City bears any responsibility for the ingress of water into the basement. Accordingly, Item 4 of the 2014 Order is confirmed.

Item 5: Mould Removal and Remediation

[67] Item 5 is mould removal and remediation. Mould has been a problem from at least as far back as the 2011 Order to Remedy. The most up-to-date evidence is contained in an investigation of indoor air quality report prepared by Pinchin Ltd. on 25 May 2016. That report finds that significant mould growth and water damage remain present on building materials and contents throughout the building. The source of the moisture is attributed to ongoing roof leaks, basement floods and likely elevated relative humidity due to evaporation of standing water in the building. The applicant points to the Hiland report of the 26 November and the replacement of mould damaged drywall as evidence that the mould problem is being addressed. However, even the Hiland report acknowledges the need to improve air quality. The Pinchin report is to all intents and purposes unchallenged, accordingly, Item 5 of the 2014 Order is confirmed.

Item 6: Permanent Ventilation

[68] Item 6, provide permanent ventilation. The applicant claims that there is no evidence to support a permanent ventilation system being necessary however, the applicant adduces no evidence to back up his argument. He bears the onus of persuading me that the 2014 Order is wrong or even misguided. Not only has he failed to do this, but there is ample evidence in the record to support the requirement for ventilation including a recommendation to that effect in the Pinchin report. Item 6 of the 2014 Order is confirmed.

Item 7: Temporary Dehumidifiers and Deodorization

[69] Item 7 operate temporary dehumidifiers and deodorize. The applicant repeats his claim that there is no evidence to support the need for temporary industrial dehumidifiers, ventilation or other related equipment in order to remove excessive moisture and strong odours until such time as a permanent ventilation system is in place and operational. Again, the Pinchin report makes it very clear that excessive humidity and moisture is at least one of the sources of the mould and odour issues, and that both temporary and permanent solutions are required including ventilation to lower indoor relative humidity. Item 7 of the 2014 Order is therefore also confirmed.

Item 8: Repair to Penetrations to Fire Separation

[70] Item 8 is repair to penetrations to fire separation. The 2011 Order contains a similar provision. There are, in all likelihood, more penetrations now than there were in 2011. Furthermore, the applicant complains that some of the penetrations have been caused by inspections carried out by or on behalf of the city. The respondent points to its statutory authority to inspect the property, make examinations, or take tests. It also argues that as a practical matter, there would be no point in replacing materials until the underlying structural issues have been addressed by the applicant. The evidence does not disclose any improper conduct on the part of the City in undertaking its statutory responsibilities. While it may be that some of the penetrations now present are a result of the City’s actions, that does not make their repair a responsibility of the City, and in any event, many, I suspect most, of the penetrations pre-date 2014 and are therefore subject to the 2011 Order. I am not persuaded that the 2014 Order was wrong in respect of these repairs and accordingly confirm Item 8 of the 2014 Order.

Item 9: Insulation and Drywall

[71] Item 9 deals with the insulation and drywall and this item is also derived from the 2011 Order. The applicant disputes the necessity for applying drywall to open ceiling and wall members, and structures in a property that is vacant. He claims this item goes beyond what the by-law requires. Because the applicant has not complied with this aspect of the 2011 Order and nothing has really changed since 2014, I see no reason not to confirm Item 9 of the 2014 Order and accordingly, do so.

Item 10: Repairing Penetrations and Damage to Floor Structures

[72] Finally, Item 10 deals with repairing penetrations and damage to floor structures. Similar comments apply to those structures that I made in respect of Item 8. Item 10 of the 2014 Order is confirmed.

[73] By reason of the foregoing, the Applicant’s appeal of the 2014 Order of the Property Standards Committee is dismissed in its entirety.

[74] Mr. Balroop, the time has now come for action on your part. I am quite sure that this building has not proved to be the investment that you hoped it would be. Unfortunately, your Band-aid solutions have not worked. You are either going to have to make the substantial investment required to rehabilitate this building in compliance with the orders that I have confirmed or the building will be demolished, also at your expense.

Submissions Concerning Costs

[75] The respondent requests costs on a partial indemnity scale totalling $55,967.02 of which $44,407.28 represents fees to date, net of taxes.

[76] During the course of submissions, counsel acknowledged that in respect of two attendances before Mr. Justice Johnston on 31 March and 1 April 2015, an express order was made that there would be no costs of those attendances. Counsel estimates that the appropriate reduction in light of that concession should be $1,500.00.

[77] The applicant submits that fairness should dictate the referral of the issue of costs to an assessment officer so that a more complete and detailed examination of the time spent by the respondent can be undertaken.

[78] I indicated to the applicant that unless he could establish the existence of exceptional circumstances that would warrant the issue of costs being referred to an assessment officer, it was my intention to fix costs. However, I did provide two adjournments, of approximately 20 minutes each, to enable Mr. Balroop to review the bill of costs and consider some of the legal principles that we had discussed. Following one of those adjournments, I shared with counsel and Mr. Balroop the decision of this court in Chandra v. Canadian Broadcasting Corporation, 2015 ONSC 6519, which in turn makes reference to the decision of the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario, 2004 ONCA 14579, in which that court said, at para. 15:

Only if the assessment process will be more suited to effect procedural and substantive justice should the court refer the matter to assessment. There must be some element to the case that is out of the ordinary or unusual that would warrant deviating from the presumption that costs are to be fixed. Neither complex litigation nor significant amounts in legal fees will be enough for the case to be exceptional. The judge should be able to fix costs with a reasonable review of the work completed without having to scrutinise each and every docket.

[79] Based on that, the court in Chandra concluded, at para. 14:

It is only in exceptional cases that such process [conducting a detailed assessment of costs] is preferable to a less precise but more expeditious and less expensive determination of costs by the judicial officer responsible for the trial.

[80] In those circumstances, I maintain my view that I should fix costs.

[81] Now, the applicant, in the face of that ruling, asked for more time to consider the bill of costs presented by the City and to provide written submissions. I also declined that request, and I did so principally because at the end of the day on Tuesday, 3 January, when arguments on this appeal were concluded, I indicated to Mr. Balroop and to counsel that the issue of costs would be dealt with today. As I hear his submissions, his principal concern is that the amount of costs requested has taken him by surprise. That is not a factor according to Boucher, which would warrant an assessment of costs, nor is it, in my view, absent something unusual about the bill of costs, a good enough reason for me to delay dealing with costs at this time.

[82] So under those circumstances, and having reviewed the bill of costs, having taken into account that there are a number of fee earners whose work potentially overlaps, and having taken into account all of the principles articulated in Rule 57.01, and what the reasonable expectations of a party in the position of Mr. Balroop might be, I am going to fix costs at the all-inclusive amount of $40,000.00. So that’s $40,000.00 inclusive of HST and disbursements. So those are my reasons on costs.

Endorsement

[83] For oral reasons given, the appeals are dismissed and the Orders of the Property Standards Committee dated 21 July 2011 and 24 September 2014 are confirmed. The time for the applicant to comply with these Orders is extended until 30 April 2017, failing which the City may proceed with repair or demolition of the subject building pursuant to section 15.4 of the Building Code Act.

[84] Costs of the appeal, to be paid by the applicant to the respondent, are fixed at $40,000.00 inclusive of HST and disbursements.

Graeme Mew J.

COURT FILE NO.: CV-12-0797 DATE: 20170105 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SHAKEEL BALROOP Appellant – and – THE CITY OF QUINTE WEST Respondent

REASONS FOR JUDGMENT Mew J. Handed Down: 5 January 2017 (orally)