Court File and Parties
Court File No.: CV-031/16 Date: 2017-06-27
Ontario Superior Court of Justice
Between: Sutherland Lofts Inc., Applicant And: Chris Peck, Chief Building Official for the Corporation of the City of St. Thomas, and the Corporation of the City of St. Thomas, Respondents
Counsel: V. M’Garry, for the applicant A. John Sanders, for the respondents
Heard: May 24, 2017 (St. Thomas)
Court File No.: CV-118/16 Date: 2017-06-27
Ontario Superior Court of Justice
Between: Sutherland Lofts Inc., Applicant And: Chris Peck, Chief Building Official for the Corporation of the City of St. Thomas, and the Corporation of the City of St. Thomas, Respondents
Counsel: V. M’Garry, for the applicant A. John Sanders, for the respondents
Heard: May 24, 2017 (St. Thomas)
Hockin J.
[1] The Corporation of the City of St. Thomas (“the City”) issued on December 3, 2015 pursuant to s. 15.9(4) of the Building Code Act, S.O. 1992, c. 23 an Order to Remedy Unsafe Building (“the Order to Remedy”). The Order to Remedy was issued to Mr. David McGee, the manager and principal shareholder of an Ontario corporation, Sutherland Lofts Inc. (“Sutherland”), by Chis Peck, the City’s Chief Building Official (“CBO”). The Order to Remedy applied to 606-610 Talbot Street in St. Thomas. At this location, Sutherland owned a four storey brick building (“the Building”) which the CBO believed to be “unsafe” as defined by the Building Code Act (“the Act”). In February 2016, the CBO invited tenders from contractors to demolish the Building. On April 8, 2016, Sutherland, by application, applied for an injunction to prevent demolition and for an order declaring the Order to Remedy issued by the CBO as “null, void and inoperative”. This proceeding is the first styled proceeding, court file CV-031/16.
[2] The application was heard May 17, 2016 and reasons were delivered by the application judge September 23, 2016. The application judge determined that the Order to Remedy was null, void and inoperative on the basis of no proper service of the Order to Remedy and that it lacked the specificity required under the Act. The application judge did not determine whether an injunction should issue nor whether the Building was unsafe.
[3] The City appealed to the Court of Appeal and Sutherland brought a cross-appeal for an interim injunction preventing the City from demolishing the Building. The appeal was heard April 12, 2017 and for reasons released May 8, 2017, the Court allowed the appeal and dismissed the cross-appeal. The citation for the court’s reasons is Sutherland Lofts Inc. v. Peck, 2017 ONCA 368.
[4] On October 26, 2016, the City issued a second Order to Remedy Unsafe Building. By application issued November 15, 2016, Sutherland moved against the order by seeking from this court an injunction to prevent the City from demolishing the Building and for an order quashing the Order to Remedy of October 26, 2016 on the basis that the Building was not unsafe under the Act. This proceeding is the second styled proceeding, court file CV-118/16.
[5] Sutherland took the position on the appeal that the appeal and cross-appeal were moot because they were superseded by the second proceeding. The Court of Appeal disagreed. At para. 7 of its reasons, this statement: We are of the view that the present appeal and cross-appeal are not moot. The issues of whether the Order to Remedy lacks specificity, the Building is unsafe, and the availability of an interim injunction to prevent demolition, do not raise a hypothetical or abstract question but are still live issues between the parties; this court’s decision will therefore have a practical effect on the parties: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 353; Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197, 260 O.A.C. 125, at para. 35.
[6] The order of the Court of Appeal was as follows: [40] Accordingly, the appeal is allowed. The cross-appeal is dismissed. The issues of whether an injunction should be granted, and whether the Building is unsafe, are remitted for hearing before another application judge.
[7] On May 24, 2017, the parties appeared before me on both matters. On May 24, 2017, I endorsed the City’s motion for directions as follows: On consent, application 118/16 is consolidated with application 031/16. The relief claimed in each is the same and arises out of the same series of events/transactions between the parties. This is in keeping with the spirit of the order of the Court of Appeal in its file, C62807. This is a correct application of Rule 6.01.
[8] For the reasons that follow, the CBO’s Orders to Remedy Unsafe Building dated December 3, 2015 and October 26, 2016 are confirmed and the consolidated application quashing the orders and for an injunction are dismissed.
A. Factual Background
[9] In 2003, Mr. McGee in the name of Sutherland purchased a vacant, 35,000 square foot building at 606-610 Talbot Street in the City of St. Thomas for $140,000. He is a mortgage broker. His plan was to renovate the Building to accommodate commercial and residential apartments.
[10] The Building was old; it was constructed about 1910. The Building is four storeys and occupies the entire property. The north side of the Building without any set back save for a sidewalk, abuts Talbot Street. Talbot Street is a public highway and is the main street of St. Thomas. It is a busy, commercial street and a major transportation corridor through St. Thomas. The west side of the Building, again without set back, abuts Moore Street, also a public roadway.
[11] Mr. McGee did not have the time to develop the property and entered into an agreement in 2005 to sell the Building. The deal fell through. There was a second unsuccessful attempt to sell in 2008.
[12] In 2008, the roof leaked. The leaking extended through all four floors to the basement. The support beams showed extensive water damage. Modifications to the roof had been done without building permits.
[13] In 2008, the City commissioned an engineering report on the structural integrity of the Building and an Order to Remedy Unsafe Building was issued. The engineer retained was Mr. Paul Harris, P. Eng of SPH Engineering Inc., Woodstock. The report is lengthy and includes photographs of the poor condition of the Building. The report is dated May 22, 2008. The Building is described as follows: The Building is four storeys; approximately 6900 square feet per floor. The date of construction of the Building is not known. The exterior walls are constructed of structural brick and the interior framing is constructed using heavy timber framing. Floors are framed with wood. The nature of this structure is that the structural brick walls provide support for the floors and roof and the roof structures provide lateral support for the brick walls. The on-going stability of this Building depends on the integrity of all of the structural members supporting each other. The loss of any of the members can have a catastrophic effect on the stability of the Building.
[14] From pp. 5 and 6 of his report, there are the following conclusions on the Building: 3.1 It is concluded that, in its current condition, the building is unsafe for occupancy. 3.2 It is concluded that, without intervention, the building will continue to deteriorate. 3.3 It is concluded that, because of the advanced stage of the structural deterioration visible within the building and the unknown nature of the structural modifications that have been carried out without a building permit, the future performance of the structure cannot be predicted. Existing beams that provide lateral support to the structural brick walls are in an advanced state of deterioration and a number of the connections between the brick support walls and the beams are in various stages of failure. Failure of one of the beams or connections could lead to an unstable condition and initiate a major structural failure. In its current deteriorated and weakened state, the building’s capacity to resist a significant meteorological event, such as a major rainfall with accompanying high winds, is drastically reduced and could initiate a major failure. A collapse of part or all of the building at any time in the future cannot be discounted. 3.4 It is recommended that, until the hazard of a possible building collapse has been eliminated, the City of St. Thomas take appropriate and immediate safety precautions to prevent access to a possible collapse zone of twenty (20) metres on all sides of the building.
[15] As noted by the Court of Appeal and from the material, Sutherland did not comply with the Order to Remedy or later orders issued by the CBO, but it did commence by application a proceeding for an injunction to prevent the demolition of the Building. Sutherland was initially unsuccessful and Little J. ordered that the demolition of the Building could proceed. However, an order to stay was obtained. There followed some minor remedial work, but the structural integrity of the Building remained as it had been.
[16] Time passed but the renovation of the Building did not proceed. No “further remedial steps to stabilize and preserve the Building” were taken, as noted by the Court of Appeal. Mr. McGee again tried to sell the Building but without success. On February 12, 2015, Sutherland obtained a building permit for shoring but the work did not proceed. The purpose of the work was to refurbish bracing within the Building.
[17] On June 2 and 11, 2015 on the report of a citizen of a collapse within the Building, the CBO Chris Peck travelled to the Building where he found the structural collapse of approximately one third of the north bay of the second floor. This followed, as noted, months of inactivity after issuance of the building permit and prompted the CBO to instruct the City’s solicitor to correspond with Mr. McGee to impel action. The solicitor’s correspondence is exhibit 2 G to the CBO’s affidavit of April 4, 2016. The first two paragraphs read as follows: The municipality must be accurately informed as to the extent of danger which exists for injury to persons or property from falling bricks, or shards thereof, and the risk of possible collapse of your 4 storey building which is located at an intersection in the City’s downtown core. Furthermore a plan for remediation or reparation must be determined forthwith which may include effective measures to stabilize the structure or to actually repair your building to a useful condition. As solicitors for the Corporation of the City of St. Thomas we are writing to confirm the seriousness and urgency of this matter. In furtherance of various communications between Chief Building Official Chris Peck and your building agent over recent months we can advise that in the City’s view the deterioration of your above referenced building may once again have reached a stage where the structure is imperiled. It is vitally important that an immediate assessment be performed by a qualified professional to determine the potential risk to persons using the abutting municipal rights of way and nearby properties.
[18] On September 11, 2015, the roof partially collapsed. On September 11 and 12, 2015, the City’s consulting engineer Mr. Harris inspected the Building. There were four “areas of concern”. From his report of September 15, 2015:
- Roof At p. 2: The roof of the building is no longer water-tight and has many large openings due to the failure of the roof membrane, the ingress of water and the decomposition of the wood members exposed to water. The water damage to the building is concentrated on the west portion of the building where the roof is sloped towards the three (3) existing roof drains on Line B. Water damage has also occurred below the temporary roof installed in 2008. At p. 6: The north and south walls of the raised section of roof, approximately six feet high, have large gaps that allow water ingress. This has been caused by the continual ingress of water, and the loss of support from the columns supporting these areas. At p. 7: An area of roof in the southwest corner of the building, approximately 17’ by 17’ at column B1, has collapsed. The collapsed section of roof is a section that was reinforced in 2008. The roof deck and support beam have fallen and left the brick wall laterally unsupported in the area. It appears that water ingress has been occurring for a number of years. The roof deck has collapsed in several locations. Evidence of water damage and rotted roof deck and supports is prevalent on the west side of the building. As previously noted, the roof deck provides support for the roof membrane, support environmental loads and provides lateral stability for the brick supporting walls. To properly function, the roof deck must be satisfactorily supported, continuous from wall to wall and be properly connected. It appears that the roof deck does not exhibit these properties.
- Column B1 At p. 7: Extensive water damage is evident at the Column B1 of the south wall of the building in the area of the roof collapse. The roof members show major water damage since the roof has not prevented water entry. Water has been running down the columns at this location, damaging each floor level and column to the basement level. The wood columns all show extensive rot and water damage, generally increasing in amount of rot at each level. Probing of the wood columns indicates that surface rot depth varies from 3.5” to 5.5”. The wood column at the first floor level has failed as rotted sections have fallen off the sides of the column. The wood beams framing into this column have deteriorated and, along with the loss of section for the first floor column, has allowed deflection of all of the floor levels above this column. At pp. 8, 10: The deflection of the beams and column B1 at the first floor has allowed the upper floors and columns to drop. The roof reinforcing beams installed in 2009 was supported on the columns that have now dropped. The wood columns added in 2009 adjacent to the dropped column are now unsupported. This cycle of column deflection and increased water flow from roof leakage has increased the flow of ingress water at this location and accelerated the degeneration of the wood members. The floor deck and supporting beams at all floors at this column location show extensive water damage and rot from the fourth level to the basement. The fourth floor has deteriorated significantly, A number of large openings have occurred due to the ingress of water directly onto the floor. Portions of the floor have fallen the areas below the roof holes have extensive water damage.
- Column B5 At pp. 13, 21: Column B5 has also dropped similar to Column B1. The fourth floor on the west side of this column has completely rotted and fallen. Also, the additional roof supports in this area, installed in 2009, which were supported on the rotted members, are now unsupported. The roof beams shown above are in a state of failure. This also applies to the wood column shown above. Soundings on this column indicate that the rot has penetrated 3-4”.
- Second Floor Collapse At pp. 23, 24: The northwest portion of the second floor, approximately one third of the north bay of the building’s second floor, collapsed during the summer of 2015, as was reported to the City of St. Thomas. The following shows the extent of the water damaged and rotted wood. Water ingress from both the north temporary roof and from the damaged building roof have allowed to main members at the second floor to decay to the point that they were unable to sustain the applied loads. Inspection of the now exposed top of the second floor main beam would indicate that the top of the wood beam has been decomposing for a lengthy period, regardless of the seeming ‘dry’ appearance of the underside. It is safe to conclude that other wood members exposed to water are in a similar condition. In addition, it is noted that each of the original wood floor beams had a steel tie rod that joined the tops of the beams across their main support beam. It is noted that the 2008 replacement multi-ply floor beams that were recently inspected were not tied to their opposite beams using the tie rod or otherwise. See following photos.
[19] Mr. Harris’ views with respect to Sutherland’s effort in 2008 to shore temporarily the Building are described at p. 31 of his report as follows: Temporary shoring was installed in 2008 to provide support to the deteriorated members found at that time. As noted above, the temporary shoring appears to have been installed to provide support for deteriorated roof and floor members. At that time, the shoring members were installed on and around the existing members. Two main issues have arisen concerning the temporary shoring. No additional support was provided for the roof or floor deck members. Roof members concentrated on the west side of the building have deteriorated and deflected or fallen and allowed water into the building. The temporary shoring has been supported on, in some cases, rotting or rotted members. In some cases, the shoring columns are no longer supported.
[20] Mr. Harris’ conclusions and recommendations are from pp. 33, 34 of his report are as follows: a. It is concluded that, in its current condition, in the opinion of the author, the building is unsafe for occupancy of any kind and that it poses an immediate hazard to the public. b. In the opinion of the author, the building will not support the environmental loads that could be imposed on it. c. It is concluded that the columns and beams that have been exposed to water for an indefinite period are at various stages of failure and cannot be expected to continue to support loads. In addition, the loss of the support that would occur with the failure of any of the above noted members will remove lateral support for the brick support walls. The brick support walls cannot be expected to remain in place without any lateral support. d. The brick walls in the areas of the roof and second floor collapses are currently extremely vulnerable to a collapse. e. It is concluded that a portion of the temporary shoring members that were installed in 2008 are now unsupported as the original wood members that were either supporting them or being used to transfer loads are now deteriorated or decomposed and can no longer carry loads. This condition currently continues as the proposed shoring is not installed. f. It is concluded that, because of the advanced stage of the structural deterioration visible within the building, the future performance of the structure cannot be predicted. In its current deteriorated and weakened state, the building’s capacity to resist a significant meteorological event, such as a major rainfall with accompanying high winds or a snowfall event, is drastically reduced and could initiate a major failure. A collapse of part or all of the building at any time in the future cannot be discounted. g. It is recommended that, until the hazard of a possible building collapse has been eliminated, the City of St. Thomas take appropriate and immediate safety precautions to prevent access to a possible collapse zone of twenty (20) metres on all sides of the building. This includes the St. Thomas Transit Building. i It is recommended that, as an alternate measure, that scrap bins be placed on the north side of the building against the building face. In that event, the possible collapse zone can be reduced to a distance of ten (10) metres.
[21] On September 15, 2015, the CBO issued an Order to Prohibit Occupancy pursuant to s. 15.9(6) of the Act. On September 16, 2015, after Mr. Harris’ report was delivered, the CBO issued an Emergency Order to take measures recommended by Mr. Harris, under s. 15.10(1) of the Act.
[22] On September 18, 2015, Sutherland’s engineer, Mr. Dwayne Buck inspected the Building. Mr. Buck’s opinion was that the Building was not in immediate danger of collapse but if “left exposed to the elements and not temporarily supported, this will lead to further deterioration”. He recommended extensive temporary shoring by scaffolding and waterproofing the roof “in the next few weeks”. Significantly, he recommended that the Building be monitored daily by visual inspections and a daily log kept. Buck prepared drawings and Sutherland retained a scaffolding firm, Skyway Canada Limited to do the work. The work started in early October 2015 but soon stopped. The Skyway workers were last on the job October 26, 2015. On November 4, 2015, a Skyway representative advised the CBO that Sutherland was in default for installation expenses and equipment rental.
[23] On November 5, 2015, the CBO issued an Order of the Property Standards Officer. The risk identified by Mr. Harris continued and on December 3, 2015, the CBO issued the Order to Remedy Unsafe Building to Sutherland. Throughout the fall, 2015, Sutherland had Mr. Harris’ report of September 15, 2015. On December 4, 2015, Mr. Buck by email wrote to the CBO to advise that his firm was “no longer providing engineering work on the proposed building located at 606 Talbot Street in St. Thomas for the repairs or restoration. The client has failed to contact us and give proper notice of work that is required to make the building safe”.
[24] On December 4, 2015, Mr. Harris returned to the Building. After noting that there had been no remedial work to the roof and no shoring at Column B5 on the second floor, he set out at pp. 3 and 4 of his December 10, 2015 report, the following conclusions and recommendations: a. It is concluded that, in its current condition with incomplete shoring and no roof repairs, in the opinion of the author, the building is unsafe for occupancy of any kind and that it remains an immediate hazard to the public. b. In the opinion of the author, the building, in its current condition, will not support the environmental loads that could be imposed on it. c. The brick walls in the areas of the roof and second floor collapses are currently extremely vulnerable to a collapse. d. It is concluded that a portion of the temporary shoring members that were installed in 2008 are now unsupported as the original wood members that were either supporting them or being used to transfer loads are now deteriorated or decomposed and can no longer carry loads. This condition currently continues as the proposed shoring is not installed. e. It is concluded that, because of the advanced stage of the structural deterioration visible within the building and incomplete shoring, the future performance of the structure cannot be predicted. In its current deteriorated and weakened state, the building’s capacity to resist a significant meteorological event, such as a major rainfall with accompanying high winds or a snowfall event, is drastically reduced and could initiate a major failure. A collapse of part of all of the building at any time in the future cannot be discounted. f. It is recommended that, until the hazard of a possible building collapse has been eliminated, the City of St. Thomas take appropriate and immediate safety precautions to prevent access to a possible collapse zone of twenty (20) metres on all sides of the building. This includes the St. Thomas Transit Building. i It is recommended that, as an alternate measure, that scrap bins be placed on the north side of the building against the building face. In that event, the possible collapse zone can be reduced to a distance of ten (10) metres.
[25] On January 15, 2016, the City invited tenders from contractors to demolish the Building. On January 20, 2016, the City received correspondence from Sutherland’s insurance broker that Sutherland’s liability insurance under a Builders Risk form had been cancelled. On February 16, 2016, the City awarded a contract to a Waterford firm for the demolition of the Building. Although there had been no appeal of the Order to Remedy, the City’s solicitor wrote to Sutherland March 21, 2016 to advise that it was the City’s intention to demolish the Building. The CBO continued to inspect the Building in late March and early April, 2016 and observed glass on the Talbot Street sidewalk and along Moore Street. There were cracks across the northwest face of the brickwork five feet above ground level. It was his view that the cracking and spalling of the brickwork were symptoms of a “wall in distress”. See CBO affidavit of April 8, 2016.
[26] The history of the Building after April 8, 2016 is a history of these proceedings. The first application proceeded to a hearing before Gorman J., May 23, 2016, with reasons delivered September 23, 2016. The appeal from her order was heard April 12, 2017 with reasons allowing the appeal delivered May 8, 2017. Both matters were heard by me May 24, 2017 now followed by these reasons.
[27] There are three features to the evidence which give context or perspective to the positions of the parties on the question of whether the Building is unsafe.
[28] One, it is not in dispute in this case that Mr. McGee lacks the funds necessary to pay for the temporary work let alone what will be required to renovate the Building. There is mention of this by the Court of Appeal at para. 35 of its reasons. It was never suggested in his material or in argument that this was not the case. The practicality of repair, if only to a level to permit the safe entry of workers to the Building, is relevant. The estimates provided by Harris (approximately $400,000) and by Mr. Darian Saulean, Mr. McGee’s consultant ($200,000 to $250,000), mean that even the temporary repairs will not proceed. Mr. McGee has never been able to maintain the Building. For example, Mr. Buck started and then stopped his retainer and Skywalk was never paid. The risk in this case, therefore, is that at a level of certainty, the Building will continue to deteriorate.
[29] The second matter is the matter of insurance. There was a commercial policy of property and liability insurance in favour of Sutherland but it was cancelled January 20, 2016. It was replaced by Mr. McGee with a policy with TD Insurance, effective April 8, 2016. The policy is described as a “New Residential Policy”. The description of the property is 606 Talbot Street not 606-610 Talbot Street and it is insured as a “Dwelling Building”. Although Sutherland Lofts Inc. is named as an insured under the policy, “dwelling” is defined by the wording as a building “wholly or partially occupied by you as a private residence”. It is not of course and it is vacant. There is no coverage in that circumstance nor where the Building is under construction. As well, there is no property insurance if the property is used for business purposes. There is probably no liability coverage for claims arising out of a business use of the insured property. I view as disingenuous any notion by Mr. McGee that he believed this policy could apply to the Building. I do not declare this, but this would seem to be the case.
[30] The third matter is that there is no evidence that the Building has ever been under construction nor is there any prospect that it will be absent a change in ownership. The plan was to renovate the Building to accommodate commercial and residential occupancy but it has been vacant since the date of its purchase in 2003. True, Sutherland has done some work but that has been stopgap work to prevent its deterioration and to keep the City at bay, but there has been no renovation and no construction now for over a period of 14 years.
Discussion
1. The Building Code Act
[31] The Orders to Remedy Unsafe Building were issued under the CBO’s authority under s. 15.9(4) of the Act. It reads as follows: An inspector who finds a building unsafe may make an order setting out the reasons why the building is unsafe and the remedial steps necessary to render the building safe and may require the order to be carried out within the time specified in the order. 2002, c. 9, s. 26.
[32] Section 15.9(2) defines an unsafe building as follows: A building is unsafe if the building is, (a) structurally inadequate or faulty for the purpose for which it is used; or (b) in a condition that could be hazardous to the health or safety of persons in the normal use of the building, persons outside the building or persons whose access to the building has not been reasonably prevented. 2002, c. 9, s. 26.
[33] There is no issue with respect to service of the orders nor the specificity of the orders. Both matters were dealt with by the Court of Appeal.
[34] Both applications are in the nature of appeals of the Orders and proceed under s. 25 of the Act.
[35] Section 25(1) reads as follows: A person who considers themself 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. 2002, c. 9, s. 40(2).
[36] The jurisdiction of the court, on appeal, is set out in subsection 4 as follows: On an appeal, a judge may affirm or rescind the order or decision and take any other action that the judge considers the chief building official, registered code agency or inspector ought to take in accordance with this Act and the regulations and, for those purposes, the judge may substitute his or her opinion for that of the official, agency or inspector. 2002, c. 9, s. 40(3).
2. Onus
[37] I am instructed by this statement by Ducharme J. in 1218897 Ontario Limited v. Ann Barooah, Chief Building Official, City of Toronto and Ryding Auto Body Ltd. at para. 4 as follows: On an appeal under section 25 of the Building Code Act, 1992 the applicant has the burden of demonstrating that the C.B.O.’s decision was not reasonable or that it was wrong in law. There is nothing in the Building Code Act, 1992 to alter the normal burden upon the applicant to demonstrate error in order to succeed. The burden is on the applicant to prove on a balance of probabilities that the C.B.O.’s decision was not reasonable and that the building permits at issue should be revoked. In attempting to discharge this burden, the applicants may tender additional evidence before the court as may the respondents to the appeal: William F. White Ltd. v. Toronto (City) Chief Building Official (1999), 44 O.R. (3d) 750 at 759 to 760 (S.C.J.).
3. Standard of Review
[38] The standard of review is one of reasonableness. Again these words of Ducharme J. from 1218897 Ontario Ltd., supra, at para. 5 as follows: The more the C.B.O.’s decision is solely an interpretation of law, the closer the standard of review will be to correctness. The more the C.B.O.’s decision is dependant upon factual determinations within the specific expertise of the C.B.O., the more deferential will be the standard. Generally speaking, however, a standard close to correctness will be applied to decisions based on law or jurisdiction and a standard of reasonableness will be applied to questions of fact. Within the standard of reasonableness, the degree of deference or the “weight” to be given to any particular determination will depend on the circumstances. Runnymede Development Corp. v. 1201262 Ontario Inc. (2000), 47 O.R. (3d) 374 at 385 to 387 (Sup. Ct. Just.).
4. The Issue
[39] The issue is whether the decisions of the CBO to issue the Orders to Remedy Unsafe Building were reasonable in the circumstances.
Findings and Conclusions
[40] The position of the applicant Sutherland is that the Building is not unsafe. Sutherland relies on the opinions of Mark Vreugdenhil, a professional engineer, and Darian Saulean, a general contractor with experience in commercial and residential construction.
[41] Mr. Vreugdenhil’s affidavit is Tab 17 of the Application Record of the Applicant, volume 2, CV-031/16. His opinion followed his inspections of the Building, October 31, 2014 and May 7, 2016. He recommended that the roof be replaced to “prevent further deteriorating the structure”. At paras. 3 and 8 of his affidavit, he offers the following opinion: 3. I have noticed that, since my original inspection over a year ago, there has been significant additional shoring installed. Furthermore, I visually reviewed the existing exterior masonry brick supporting walls on both visits and noted that no major cracks or structural concerns were evident at either visit. Such cracks would be present if there were an imminent danger that the building were about to collapse. 8. Given that there are no signs of imminent collapse of the building, weekly monitoring is recommended until this shoring work can be completed. With this monitoring in place, the building would not present a safety concern to the general public.
[42] There is no evidence that there has been weekly monitoring of the Building by Sutherland.
[43] Mr. Vreugdenhil’s opinion was reviewed by Mr. Harris of SPH Engineering. His comments on the Vreugdenhil opinion are set out in his report to the CBO of May 13, 2016. From pp. 2, 4 and 6 of his report, he answers the opinion of Mr. Vreugdenhil as follows: In item 3 of the affidavit, Mr. Vreugdenhil notes that ‘there has been significant additional shoring installed’. It must be noted that the installed shoring was part of Building Permit 15-007 issued by the City of St. Thomas based on drawings that were prepared by DC Buck Engineering for the shoring of the building. The shoring installed near and around Column B1 was not completed and does not fulfill its intended purpose of providing support. In addition, the shoring that was shown for the north end of the building was never installed. In addition, there is a reference to a lack of major cracks or structural concerns regarding the exterior brick walls. The following photos are illustrative the type of cracking in the masonry walls. Also included is photo taken in 2008 in the south stairwell. This photo shows a vertical crack between the stair wall and the building wall from the lowest floor to the fourth floor. Item 5 of the affidavit refers to additional shoring supporting the roof framing. No detail is provided on where in the building this shoring is to be installed, but it is assumed that it is the area of the high roof. As noted in our report September 2015, the shoring is no longer supporting the roof as the columns supporting the shoring system have sagged. Item 6 of the affidavit discusses the spalling brick. It is correct that the brick on the north side of the building is spalling, however, the brick and mortar condition on the other sides of the building shows considerable deterioration, particularly the upper storeys. The photos below from 2008 show a sampling of the condition of the walls of the building. These conditions have not been addressed since that time. As noted in our previous reports, the load-bearing masonry walls provide support for the floor and roof beams. In turn, the beams also provide lateral support for the masonry walls. The hazard of collapse of the building is predominantly related to the poor condition of the wood framing and the sudden loss of lateral support for the masonry walls. In the event of this loss, any portion of the masonry walls, whether cracked or intact, could collapse inward or outward. The photo below shows the north wall interior in the area of the second floor collapse. It can be seen that the beam that pulled out of the wall was not retrained by anything other than the mortar surrounding it. This indicates that only friction was keeping the beam in place and providing lateral support for the wall. This situation was also found during the partial demolition that occurred in 2008. The wood beams that were removed were not attached to the masonry wall in any way. In addition, the bricks simply lifted off the wall. This indicated that the bond between the brick and mortar had significantly deteriorated. The next photo shows the deteriorated condition of the collapsed second floor beam. Significant deterioration is seen on the top of the beam; only visible after the beam had collapsed. In the opinion of the author, it can be safely assumed that this can be expected in other areas of the framing not visible for inspection.
[44] The Harris report included photographs of the significant cracking of the exterior walls. I conclude that Mr. Vreugdenhil overlooked this. I attach no weight to his opinion. I accept the detailed and well documented answers of Mr. Harris to the expressed opinions of Mr. Vreugdenhil.
[45] The opinion of Mr. Saulean is set out at Tab 16 of volume 2, supra. Mr. Saulean inspected the property April 23, 2016. Mr. Saulean agrees with Mr. Vreugdenhil that it is important that the roof be replaced “to prevent further decay to the property”. Mr. Saulean’s view is that there is no risk of the Building collapsing outward. Since the Building is unused and unoccupied, and there is no risk of the building collapsing outward, the Building cannot be considered unsafe. The position of Sutherland in this case is set out at para. 25 of his affidavit, as follows: To further recap, it is simply not possible for any partially constructed building to comply with all of the elements of the Ontario Building Code at any given time. That is why inspections are arranged at predetermined times when the construction of a building has reached certain stages and occupancy is prohibited until all aspects of the construction have been fully completed. Attached hereto as Exhibit “K” are several photos of partially constructed buildings in Toronto, many with permits dating to 2014 or prior that still have significant structural deficiencies. Most of these properties have only been fenced off so as to prevent access by the general public as this is the primary requirement under the Building Code Act. If the Respondent were allowed to demolish this property, it would set a dangerous precedent that would allow any or all of these homes to also be demolished at will by the municipality.
[46] Mr. McGee, on his cross-examination, paraphrased this position at p. 154 of his transcript as follows: I would have made the same comments that I just made to you, that this work can’t be practically completed, you know, and I would have made the comment that I – again that this – under the Building Code this isn’t – isn’t an unsafe condition. It becomes unsafe if the public has access to it. Or if any of these items deteriorate further, then it becomes an unsafe condition. Q. And I think that’s a legal interpretation that you’re entitled to make, but …. A. Well, it’s a – it’s a legal interpretation but it’s also a practical one because otherwise every house that’s under construction – every house – could have an order like this. Every single house that’s under construction, an order like this could be issued against it. Q. In what sense is this building under construction right now? A. There’s a permit. Q. Is that what defines it for you? A. Well, there’s a permit. There’s been work that’s been undertaken. We’re still actively trying to get that work and that shoring work done.
[47] It is not the case, in my view, that there has been any construction for the purpose of the renovation of the Building. There has only been a losing campaign against its deterioration. There is no evidence to support Mr. McGee’s view that he is “actively” doing anything.
[48] Mr. Harris reviewed the Saulean affidavit. From pp. 8 and 9 of his May 13, 2016 report, the following criticism is offered: It is noted that Mr. Sauleen is a former structural engineer. Given the dates of his employment as a structural engineer, it is clear that Mr. Saulean did not obtain an engineering licence. Item 16 of Mr. Saulean’s affidavit refers to the wood column at line B5. In this paragraph, it is noted that ‘the bottom of this beam has rotted such that the remaining column is probably only the equivalent of an 8x8 column instead of the originally over-designed 14x14 columns that were part of the original construction of the building around 1900’. With respect to Mr. Saulean’s education and construction experience, a statement of this nature appears inappropriate due to his lack of an engineering licence. Item 18 discusses the steel framing at lines 3 and 4 in the building that formerly supported the printing presses. These steel frames are at two of the ten(10) lines of framing in the building, including the building north and south walls. The steel frames also stop at the second floor; the third, fourth floors and roof are framed independently with wood members. In addition, the ends of the steel beams are supported on the existing brick walls as shown in the photo below from 2008. Mr. Saulean indicates that these steel “girders will effectively prevent the building from collapsing outward – the building would only collapse on itself”. As noted above, the steel frames exist at only two of the ten framing lines in the building. Columns B1 and B5 are outside of the steel framing and have no interaction with the steel. Given the limited extent of the steel frames, it cannot be concluded that the steel frames would effectively prevent the collapse of the entire building. As noted above and in previous reports, the load-bearing masonry walls provide vertical support for the floor and roof beams. In turn, the beams also provide lateral support for the masonry walls. The hazard of collapse of the building is predominately related to the poor condition of the wood framing and the sudden loss of lateral support for the masonry walls. In the event of this loss, any portion of the masonry walls, whether cracked or intact, could collapse inward or outward. Item 25 and Exhibit “L” (noted as Exhibit “K”) of the affidavit shows a number of single and two-storey wood-framed residences in various stages of demolition and construction in the Toronto area. While demonstrating the necessity of keeping the public safe, they don’t provide any comparison to 606-610 Talbot Street, a four-storey masonry and heavy timber framed building that has no property setbacks.
[49] I accept the more detailed professional opinion of Mr. Harris over the opinion of Mr. Saulean. Mr. Saulean is not a licensed engineer. As well, his opinion suffers the same fate as does the opinion of Mr. Vreugdenhil; they are based on an inadequate inspection of the building and a failure to take into account the significant deterioration of the Building and, in particular, the weakening of the columns and beams.
[50] Mr. Harris ends his May 13, 2016 report with this conclusion: f. It is concluded that, because of the advanced stage of the structural deterioration visible within the building, the future performance of the structure cannot be predicted. In its current deteriorated and weakened state, the building’s capacity to resist a significant meteorological event, such as a major rainfall with accompanying high winds or a snowfall event, is drastically reduced and could initiate a major failure. A collapse of part or all of the building at any time in the future cannot be discounted.
[51] I accept the findings and conclusions of Mr. Harris. He defined for the CBO the risk to life and property the Building presented. There is a sidewalk and the City’s main street at the north side of the Building. The Building may collapse outward. The risk may materialize at “any time”. The risk increases as the Building continues to deteriorate. The owner lacks sufficient or any funds to stop this. It was entirely reasonable for the CBO faced with this information to act on the findings of Mr. Harris and his opinion on the state of the Building to conclude the Building was unsafe and to issue the Orders to Remedy. The Building was, I find, unsafe.
[52] In the result, the applications are dismissed. The Orders are confirmed. The City is entitled to an award of costs. Submissions on costs – the City by July 19, 2017, Sutherland, in response by August 11, 2017.
Justice P. B. Hockin
Released: June 27, 2017