Court File and Parties

COURT FILE NO.: 15-65702 DATE: 2017/08/16

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

James Michael Demers Applicant – and – Township of Killaloe-Hagarty-Richards Respondent

COUNSEL: R. Bowles, for the Applicant S. Kelly, for the Respondent

HEARD: June 30, 2017

REASONS FOR DECISION O’Bonsawin J.

Overview

[1] The Applicant, Mr. Demers, lives in a waterfront home on Sherwood River in the Township of Killaloe-Hagarty-Richard. Mr. Demers is concerned about a structure characterized by his neighbours as a temporary boathouse (boathouse) constructed in 2014. In Mr. Demers’ view, his neighbours required, but did not obtain, a building permit for the boathouse.

[2] Before erecting the boathouse, Mr. Demers’ neighbours dealt with Mr. Wrigglesworth, the Chief Building Official (CBO) for the Respondent, the Township of Killaloe-Hagarty-Richards (Township). Through their dealings with the CBO, Mr. Demers’ neighbours believed they had the authority, if any, required to construct the boathouse.

[3] The outcome of this application turns on the nature of the CBO’s dealings with the neighbours and the Township’s dealings with Mr. Demers with respect to the boathouse.

Issues

[4] The issues on this Application are:

(1) Did the CBO make a decision in 2014 as to whether a building permit was required for the construction of the boathouse?

(2) Is Mr. Demers’ Application for declaratory relief barred because he failed to appeal a decision of the CBO within 20 days of the date on which the decision was made?

(3) Did Mr. Demers’ neighbours require a building permit prior to constructing the boathouse?

Background

[5] In the summer of 2014, Mr. Demers’ neighbours met with the CBO and advised him that they required an immediate shelter solution for their boat. The neighbours intended to construct a temporary boathouse, made primarily of fabric, until a permanent boathouse could be constructed.

[6] From their dealings with the CBO, Mr. Demers’ neighbours concluded that the boathouse was not a “building” within the meaning of the Building Code Act, S.O. 1992, c. 23 (Act) and they did not require a building permit to construct it.

[7] Mr. Demers also dealt with the Township in 2014. On June 25, 2014, the CBO attended Mr. Demers’ property in order to perform an excavation inspection for Mr. Demers’ garage. During the CBO’s inspection, Mr. Demers discussed his concerns regarding his neighbours’ boathouse.

[8] In late 2014 and in 2015, Mr. Demers communicated with the Township and maintained his complaint that his neighbours did not obtain a building permit to construct their boathouse. One of Mr. Demers’ neighbours unfortunately passed away on May 20, 2016, and the “temporary boathouse” was not removed. The property has since been sold to a third party. Mr. Demers commenced this Application for declaratory relief.

Preliminary Evidentiary Issue

[9] Mr. Demers relies on a report prepared by Liz Hilfrich, formerly a CBO with the City of Gloucester. There are a number of evidentiary issues arising from the report before me:

• the report is included in the application record as an independent document, and is not attached as an exhibit to the affidavit;
• the accompanying information as to Ms. Hilfrich’s qualifications and expertise is minimal;
• the expert report is not in accordance with Rule 53.03(2.1), which requires that an expert report contain certain information in order to be admissible; and
• Mr. Demers did not file a copy of Ms. Hilfrich’s CV along with her report and Acknowledgement of Expert’s Duty.

Position of the Parties

[10] Mr. Demers provides this Court with Ms. Hilfrich’s report, which he characterizes as an expert report. The Township objects to this Court’s acceptance of this report as an expert report, since it has not been introduced as sworn evidence and as such, is inadmissible hearsay. In addition, the Township lists the report’s deficiencies:

• the report does not indicate whether Ms. Hilfrich has had any experience with tents in a professional capacity;
• no reference is made to those portions of the Building Code, O. Reg. 332/12 (Code) referencing various sizes of tents, including what such tents could be used for and how would they be constructed;
• Ms. Hilfrich misquotes s. 1.4.1.1. of Division A of the Code;
• no reference is made to the various uses of large tents and how trades and professionals in those fields would mean by the word “tent”;
• Ms. Hilfrich provides a definition of “tent” without explaining its source or what it is based on; and
• Ms. Hilfrich suggests that Appendix A is an appendix of the Code when it is actually an appendix to a compendium produced by the Ministry of Municipal Affairs and Housing, a document that has no legal status.

Analysis

[11] In order for an expert report to be admissible in accordance with Rule 53.03(2.1) of the Rules of Civil Procedure, R.R.O 1990, Reg.184 (Rules), it must contain: the expert’s name, address, area of expertise, qualifications, and employment and educational experiences in his or her area of expertise. The report must also include the instructions provided to the expert in relation to the proceeding, the nature of the opinion being sought, each issue in the proceeding to which the opinion relates, and the expert’s opinion respecting each issue. Where there is a range of opinions given, the report must summarize the range and the reasons for the expert’s own opinion within that range and the expert’s reasons for his or her opinion, including: (i) a description of the factual assumptions on which the opinion is based, (ii) a description of any research conducted by the expert that led him or her to form the opinion, and (iii) a list of every document, if any, relied on by the expert in forming the opinion.

[12] Mr. Demers provides this Court with a copy of Ms. Hilfrich’s report dated March 27, 2017, with an Acknowledgment of Expert’s Duty form and her resume. It must be noted that her resume is not listed as an attachment to her report. Ms. Hilfrich’s report does not list her area of expertise, her qualifications, employment, nor educational experiences in her area of expertise.

[13] In Danos v. BMW Group Financial Services Canada, 2014 ONSC 2060, it was determined that a court can insist on an affidavit from an expert and that a party can either provide the court with an affidavit from an expert setting out his/her opinion, or provide an affidavit from the expert with the report attached. In this matter, Ms. Hilfrich did not provide an affidavit.

[14] Based on my review of the Rules, the case law and the evidence before me, I have concluded that Ms. Hilfrich’s report does not contain all of the information required under Rule 53.03(2.1). In addition, the report is not in an affidavit format or attached as an exhibit in an affidavit. Consequently, I find that Ms. Hilfrich’s report is not properly before me and cannot be recognized as an expert report. As a result, I give no consideration to the information set out in the report. I will now turn to the issues identified in this matter.

Issue No. 1 - Did the CBO make a decision in 2014 as to whether a building permit was required for the construction of the boathouse?

[15] Subsection 25(1) of the Act states:

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).

[16] The most common form of decisions or orders subject to an appeal under s. 25(1) of the Act are building permits issued by a CBO. The following are different types of orders subject to an appeal under section 25(1) of the Act:

• a building permit issued by a CBO (Ashburner v. Adjala-Tosorontio (Township), 2016 ONSC 2665, 2016 CarswellOnt 8729 at paras. 13-14; Dysart (Municipality) v. Haliburton Wild Life Reserve Ltd., 2016 ONSC 956, 2016 CarswellOnt 1729 at paras. 21, 34-35; Toronto (City) v. SheppBonn Ltd, 2015 ONSC 3829, 2015 CarswellOnt 12215 at para. 19; Wheeler v. Syrowik, 2017 ONSC 2901 at paras. 14-15) or the CBO refusing to issue a building permit (Williamson v. Toronto (City), 2016 ONSC 6164, 2016 CarswellOnt 15073 at para. 4; Ottawa (City) v. Ottawa (Chief Building Official), (2003), 180 O.A.C. 48 at para. 111);
• the issuance of an "Unsafe Building -- Order to Make Safe" by a CBO pursuant to s. 15.9(4) of the Act (Valastro v. London (City), 2017 ONSC 773 at paras. 7, 19); and
• an order prohibiting occupancy of a dwelling issued by the CBO (Conte v. Brant, 2016 ONSC 6281, 2016 CarswellOnt 16306 at paras. 1-2).

[17] The following provisions suggest that orders and provisions made under the Act are to be made in written form. This would also apply to orders and decisions subject to a right of appeal under s. 25(1):

8(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

(b) the applicant is a builder or vendor as defined in the Ontario New Home Warranties Plan Act and is not registered under that Act.

37(1) In any prosecution for an offence under this Act, a copy of a direction or order purporting to have been made under this Act or the regulations and purporting to have been signed by the person authorized by this Act to make the direction or order is, in the absence of evidence to the contrary, proof of the direction or order without proof of the signature or authority.

15.9(4) An inspector who finds that a building is 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.

[18] For example, s. 8(2) (CBO shall issue a permit), s. 37(1) (a copy of a direction or order…signed by the person authorized by this Act to make the direction or order) and s. 15.9(4) (an inspector who finds that a building is unsafe may make an order setting out the reasons) of the Act suggest that orders and provisions made under the Act are to be made in written form. This analogy would also apply to orders and decisions subject to a right of appeal under s. 25(1) of the Act.

Position of the Parties

[19] The Township argues that s. 25(1) of the Act applies in this case and Mr. Demers should have appealed the CBO’s decision instead of the filing an Application with this Court. Mr. Demers is circumventing the process established under s. 25(1) by seeking declaratory relief through an Application. The Township further submits the time to appeal should not be extended absent a clear explanation for delay since it would be inconsistent with the legislature’s intention to provide for expeditious resolution of appeals.

[20] The Township’s position is the CBO’s decision was communicated to Mr. Demers on June 25, 2014, and subsequently re-affirmed on January 13, 2015, and June 16, 2015. The time for appeal began to run on June 25, 2014. Mr. Demers failed to appeal and did not bring this Application until September 11, 2015, approximately 14 months after the CBO’s decision. Mr. Demers did not provide a reasonable explanation for the failure to appeal and for the delay. Consequently, the Application should not be converted into an appeal nor should the time to appeal be extended.

[21] Lastly, the Township argues deference must be given to the CBO’s decision, the appeal has little chance of success, and the time to appeal should not be extended.

[22] For his part, Mr. Demers argues that he is not appealing a decision of the CBO. He seeks a declaration “that a certain fabric covered framed structure/building erected on premises municipally municipally known as 3496 Round Lake Road, Round Lake, Ontario is a structure the construction/erection of which first requires a building permit be obtained from the appropriate municipal officers of the Township of Killaloe-Hagarty-Richard”. He filed his Application only after the Township’s Counsel reached its decision essentially relying on the opinion of the CBO that his interaction with Mr. Demers on June 25, 2014, consisted of his decision. Mr. Demers argues he did not receive a decision from the CBO and is not statute barred. In the alternative, he argues the principle of res judicata should apply to this action, since he detrimentally relied on the actions of the Township that only brought forward the issue of timelines in May 2017.

Analysis

[23] The parties submitted various affidavits from Mr. Demers and the CBO with attached exhibits. In the CBO’s Affidavit of May 12, 2017, he affirms that he had a meeting with Mr. Demers on June 25, 2014. At that time, he was performing an excavation inspection for an accessory building on Mr. Demers’ property.

[24] In the CBO’s Affidavit dated December 9, 2015, the CBO affirms that during their meeting, Mr. Demers informed him that he was upset by his neighbours’ erection of a tent that interfered with his view of Round Lake. The CBO advised Mr. Demers that there was no such thing as a right to a view and that he was aware that they had erected their tent for use as a boathouse and their plans complied with all applicable laws. Nevertheless, he told Mr. Demers that he would attend next door to speak to the neighbours and look at the tent. Upon attending at the neighbours’ property, he observed that the tent properly located and in compliance with all applicable laws. The tent is comprised of fabric stretched over wooden poles. The fabric is anchored to the ground by pegs. There is no foundation, plumbing, electricity, nor any utilities being run to the tent.

[25] The CBO further commented regarding the location of the boathouse in his Affidavit of December 9, 2015. The boathouse is located more than three meters from the property line. It appears to be located within 20 meters of the water’s edge, which is permissible under the Township’s zoning By-law 18-94. The by-law provides that a boathouse is not required to meet the 20 metre water set back otherwise prescribed. The CBO also noted he observed that the neighbours were storing their boats and all-terrain vehicle inside the boathouse.

[26] In his Affidavit dated June 13, 2017, Mr. Demers provides, as an exhibit, his letter dated November 2, 2014, to the Mayor of the Township. In this letter, he advises the Mayor that when he first spoke to the CBO about his neighbours’ two storey storage structure, the latter advised him that this was not the structure that the neighbours told him they would be building. Approximately two weeks later, the CBO inspected Mr. Demers’ garage permit. Mr. Demers further states in his Affidavit that when the CBO saw the neighbours’ building, he told Mr. Demers that it was a problem, took pictures and advised that he would approach the neighbours about it.

[27] In addition, in his June 13, 2017 Affidavit, Mr. Demers affirms that he was advised by Councillor Jeffrey that the CBO took the position that the structure is a boathouse and that the Township has no by-law regarding a boathouse. In a prior discussion, the Mayor had advised Mr. Demers that the neighbours told the CBO they were going to take down the structure.

[28] Mr. Demers’ Affidavit contains an e-mail exhibit to the Mayor dated December 2, 2014. In this e-mail, he inquired whether the meeting scheduled on January 13, 2015, between the Mayor, the CBO, and him was necessary, since the CBO had classified the structure as a “temporary accessory structure”. Mr. Demers assumed that it would be either removed or relocated 66 feet away from the water, as it was temporary.

[29] Mr. Demers’ Affidavit of June 13, 2017, contains the Township’s Policies, Procedures & By-Law Review Committee notes of April 8, 2015, as an attached exhibit. The notes confirm that Mr. Demers asked questions regarding a canvas building that was placed on the property adjacent to his. The notes further indicate the Committee agreed that if the building were not taken down by mid-May, the CBO would be asked to attend a Council meeting to discuss the definition of these buildings under the Act.

[30] Lastly, Mr. Demers’ Affidavit of June 13, 2017, contains as an exhibit a letter from the Township dated June 17, 2015, as well as the CBO’s June 16, 2015, report to Council. This letter from the Township provides Mr. Demers with the CBO’s report as an attachment. The Township indicates the CBO’s report was reviewed and approved by Council at its Regular Meeting on June 16, 2015.

[31] The CBO’s report to Council dated June 16, 2015, provided in the exhibit to Mr. Demers’ Affidavit of June 13, 2017, contains the timelines and discussions/actions that occurred regarding his neighbours’ boathouse.

• Mr. Demers’ neighbours had attended the CBO’s office by appointment to discuss their plan to install a temporary/portable structure to store their boat, boat equipment, and accessories. The CBO supplied them with the required setbacks regulated by By-law 18-94. They advised him that the portable structure was temporary for boat storage until they decided where to construct a permanent boathouse/storage facility. They complied with the setbacks in the zoning by-law.
• During a meeting in the summer of 2014, while performing a Building Permit inspection at Mr. Demers’ property, Mr. Demers brought to the CBO’s attention a fabric covered storage building on his neighbours’ property.
• On November 3, 2014, the CBO replied to the Mayor and Councillor Jeffrey regarding Mr. Demers’ e-mail to the Mayor. The CBO referred to By-law 47-2008 and By-law 18-94.
• On December 5, 2014, the CBO received an e-mail from the Mayor inviting him to a meeting on January 13, 2015 between herself, Councillor Jeffrey, and Mr. Demers, to discuss the situation regarding the boathouse.
• At the January 13, 2015 meeting, the CBO explained that according to By-law 18-94, a boathouse is not required to meet the water setback and he provided a copy of this by-law to Mr. Demers.
• On April 9, 2015, the CBO responded to a request for an update on the situation to the Township as Mr. Demers had attended the Policies, Procedures & By-Law Review Committee on April 8, 2015.
• On May 6, 2015, the CBO provided a verbal update and responded to questions related to the situation at the Finance Committee Meeting.
• On June 3, 2015, Mr. Demers sent Councillor Jeffrey an email requesting an update.

[32] In his report, the CBO concludes that he does not have the authority under the Act to issue a permit as one is not required. In his view, there is no legislation in place, either in the Code, or municipally, that would require the neighbours to remove this structure from their property.

[33] It is clear from the evidence that the meeting on June 25, 2014, cannot be characterized as the CBO’s decision. The CBO was there for another purpose: the inspection of Mr. Demers’ garage building permit, unrelated to this matter. They had a simple discussion.

[34] The Township argues that a decision was also provided at the meeting of January 13, 2015. During the meeting, the CBO explained that according to By-law 18-94, a boathouse is not required to meet the water setback. There was no discussion about a building permit.

[35] In addition, the Township’s letter dated June 17, 2015 does not constitute a decision, it simply provided the CBO’s report to Council to Mr. Demers.

[36] In order for s. 25(1) of the Act to apply, the CBO must provide a decision. I have previously listed the most common decisions related to s. 25(1). The Act also suggests that orders and provisions made under the Act are to be made in written form. In this matter, the CBO did not provide a decision refusing to issue a building permit, let alone issue a written decision. Consequently, I conclude the CBO did not provide Mr. Demers with a decision.

Issue No. 2 - Is Mr. Demers’ Application for declaratory relief barred because he failed to appeal a decision of the CBO within the 20 days of the date on which the decision was made?

[37] According to s. 25(1) of the Act, an aggrieved person may appeal the CBO’s order or decision within 20 days after it is made. The Township argues that Mr. Demers has not met the 20 days requirement. Mr. Demers argues that he never received a decision from the CBO regarding his neighbours’ structure, therefore s. 25(1) cannot apply to this matter.

[38] Since I have already determined that Mr. Demers did not receive a decision, s.25(1) of the Act does not apply to this situation and the Application is not barred from proceeding.

Issue No. 3 - Did Mr. Demers’ neighbours require a building permit prior to constructing the boathouse?

[39] Subsection 8(1) of the Act states that “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.”

[40] In addition, a building is defined in s. 1(1) as:

(a) a structure occupying an area greater than ten square metres consisting of a wall, roof and floor or any of them or a structural system serving the function thereof including all plumbing, works, fixtures and service systems appurtenant thereto,

(b) a structure occupying an area of ten square metres or less that contains plumbing, including the plumbing appurtenant thereto,

(c) plumbing not located in a structure,

(c.1) a sewage system, or

(d) structures designated in the building code; (“bâtiment”).

[41] Pursuant to s. 1.1(1) of the Act, persons constructing buildings must do so in accordance with the Act. The Act states:

(1) It is the role of every person who causes a building to be constructed,

(a) to cause the building to be constructed in accordance with this Act and the building code and with any permit issued under this Act for the building;

(b) to ensure that construction does not proceed unless any permit required under this Act has been issued by the chief building official; and

(c) to ensure that construction is carried out only by persons with the qualifications and insurance, if any, required by this Act and the building code.

[42] Pursuant to s. 3(1) of the Act, the municipality’s Council is responsible for the enforcement of the Act, and as per s. 3(2), the “council of each municipality shall appoint a chief building official and such inspectors as are necessary for the enforcement of this Act in the areas in which the municipality has jurisdiction.”

[43] The role of a CBO is also set out at s.1.1(6) of the Act:

(a) to establish operational policies for the enforcement of this Act and the building code within the applicable jurisdiction;

(b) to co-ordinate and oversee the enforcement of this Act and the building code within the applicable jurisdiction;

(c) to exercise powers and perform the other duties assigned to him or her under this Act and the building code; and

(d) to exercise powers and perform duties in accordance with the standards established by the applicable code of conduct.

[44] Subsection 7(1) of the Act permits the Council of a municipality, among other things, to prescribe classes of permits and provide for applications for permits. Permit must be accompanied by plans, specifications, documents, and other information. Subsection 7(1) of the Act reads as follows:

7(1) The council of a municipality or of an upper-tier municipality that has entered into an agreement under subsection 3 (5) or a board of health prescribed for the purposes of section 3.1 may pass by-laws, a planning board prescribed for the purposes of section 3.1 may pass resolutions and a conservation authority prescribed for the purposes of section 3.1 or the Lieutenant Governor in Council may make regulations, applicable to the matters for which and in the area in which the municipality, upper-tier municipality, board of health, planning board, conservation authority or the Province of Ontario, respectively, has jurisdiction for the enforcement of this Act,

(a) prescribing classes of permits under this Act, including permits in respect of any stage of construction or demolition;

(b) providing for applications for permits and requiring the applications to be accompanied by such plans, specifications, documents and other information as is prescribed;

(b.1) subject to the regulations made under subsection 34 (2.1), establishing and governing a program to enforce standards prescribed under clause 34 (2) (b), in addition to any programs established under subsection 34 (2.2);

(b.2) subject to the regulations made under subsection 34 (2.2), governing a program established under subsection 34 (2.2);

(c) requiring the payment of fees on applications for and on the issuance of permits, requiring the payment of fees for maintenance inspections, and prescribing the amounts of the fees;

(c.1) requiring the payment of interest and other penalties, including payment of collection costs, when fees are unpaid or are paid after the due date;

(d) providing for refunds of fees under such circumstances as are prescribed;

(e) requiring a person specified in the building code to give notice to the chief building official or an inspector or to a registered code agency if one is appointed, of any of the stages of construction specified in the building code, in addition to the stages of construction prescribed under subsection 10.2 (1) and prescribing the period of time after such notice is given during which an inspection may be carried out;

(f) prescribing forms respecting permits and applications for permits and providing for their use;

(g) enabling the chief building official to require that a set of plans of a building or any class of buildings as constructed be filed with the chief building official on completion of the construction under such conditions as may be prescribed in the building code;

(h) providing for the transfer of permits when land changes ownership;

(i) requiring the person to whom a permit is issued to erect and maintain fences to enclose the site of the construction or demolition within such areas of the municipality as may be prescribed;

(j) prescribing the height and description of the fences required under clause (i).

[45] Section 8 of the Act sets out the system for the application and issuance of building permits for the construction and demolition. Section 8 of the Act states:

Building permits

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.

Application for permit

(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.

Issuance of permits

(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;

(b) the applicant is a builder or vendor as defined in the Ontario New Home Warranties Plan Act and is not registered under that Act;

(b.1) the Architects Act or the Professional Engineers Act requires that the proposed construction of the building be designed by an architect or a professional engineer or a combination of both and the proposed construction is not so designed;

(c) a person who prepared drawings, plans, specifications or other documents or gave an opinion concerning the compliance of the proposed building or construction with the building code does not have the applicable qualifications, if any, set out in the building code or does not have the insurance, if any, required by the building code;

(d) the plans review certificate, if any, required for the application does not contain the prescribed information;

(e) the application for the permit is not complete; or

(f) any fees due have not been paid.

[46] In addition to the Act, the Township passed a comprehensive zoning by-law (By-law Number 18-94) in August 1996, which applies to all lands within the Township and regulates the use of lands, the character, location, and use of buildings and structures in the defined area of the Township. Section 34 permits the Council of a local municipality to pass by-laws to regulate the use of lands and the character, location, and use of buildings and structures.

[47] In para. 2.2.1 of the Townships By-laws, a boathouse is defined as “a building or structure or part thereof not over one storey in height, used for storage of private boat and equipment accessory to their use, as an accessory use to a residential use, no part of which shall be used for human habitation or commercial purposes.”

[48] Paragraph 2.23 of the By-laws defines a building as “any structure used for shelter, accommodation or enclosure of persons, animals or chattels.”

Positions of the Parties

[49] Mr. Demers argues that his neighbours’ boathouse has been in situ for approximately three years. The boathouse is a structure to which the Act and the Township’s By-law applies. A “tent” as used in the Act is intended to refer to a temporary shelter. Mr. Demers argues that the neighbours’ boathouse is not a tent, as it is not a temporary shelter.

[50] The Township argues that the neighbours’ boathouse is a tent and a “building”, as defined under the Act. However, the terms of the Act, which comprise minimum standards by which construction of buildings is inspected for compliance, provide that certain tents do not require a permit under s. 8 of the Act. Specifically, sentence 1.3.1.1(5) of Part 1 of Division C (O. Reg 332/12: Building Code) exempts a tent from requiring a permit. Sentence 1.3.1.1(5) states:

1.3.1.1 Requirement for Permits

(5) A tent or group of tents is exempt from the requirement to obtain a permit under section 8 of the Act and is exempt from compliance with the Code provided that the tent or group of tents are,

(a) not more than 60 m2 in aggregate ground area,

(b) not attached to a building, and

(c) constructed more than 3m from other structures.

[51] The Township further pleads that the word “tent” is not defined in either the Code or the Act. Division A, Part 1, sentence 1.4.1.1(1) states that when words or phrases are not defined in the Code, they “shall have the meanings that are commonly assigned to them in the context in which they are used, taking into account the specialized use of terms by the various trades and professions to which the terminology applies.”

[52] The Township argues that the neighbours’ boathouse is a tent, as defined in the Dictionary of Architecture and Landscape Architecture: “portable compression structure in which a self-supporting frame or armature is constructed over which a protective membrane is draped.”

Analysis

[53] Mr. Demers provides photographs of his neighbours’ boathouse as an exhibit to his Affidavit dated February 3, 2017. The photographs show that the boathouse is framed with wood, has roof trusses, walls, a roof (both with fabric covering), and a floor covered with a tarp-like substance. Consequently, the boathouse meets all of the requirements in para. 1(1)(a), and is a building under the Act. Consequently, when the neighbours erected their boathouse, they had to do so in accordance with the Act (s. 1.1(1)).

[54] The photographic evidence shows that the neighbours’ boathouse is used to store a boat, an ATV, and many other objects. Consequently, the neighbours’ boathouse is a building, since it is used to shelter chattels as per para. 2.23 of the By-law. The photographs also clearly show that the neighbours’ structure has a set of stairs leading up to a second storey, which has a floor where various items are stored. Since the neighbours’ boathouse is more than one storey, it cannot be considered as a boathouse as per para. 2.2.1 of the By-laws.

[55] Lastly, the 2006 Building Code Compendium assists with interpretation of the Act. In Appendix A, Part 3.14, the word “tent” as used in the Code is intended to be a temporary shelter that is used at an open air event such as a fair or an exhibition. It is normally constructed of fabric held up by poles and attached to the ground by ties. The photographs clearly depict that the neighbours’ structure is not a temporary shelter since it has stairs and a second storey. It is constructed in a permanent manner, not for ease of disassembly.

[56] In the matter of David Starr (Ruling No. 05-01-1015), the construction in dispute involved whether or not the structure was considered a “tent”. The Building Code Commission determined that the structure was not a tent because it was “not intended for use as a temporary shelter as anticipated by the Code for tents. The structure has been constructed as a permanent building for year round use in the storage of material related to the operation of a salvage yard” (p. 6). The Starr decision supports Mr. Demers’ argument that a tent is temporary and portable. In the evidence provided, it is clear that the neighbours’ boathouse is not a temporary and portable structure.

[57] Since the evidence demonstrates that Mr. Demers’ neighbours’ boathouse is not a “tent” (it has two stories and is not temporary), it is not exempted as per s. 1.3.1.1(5) of the Code under the Act. I conclude that the boathouse in question is a “building” as per the Act, and a building permit must be obtained in accordance with s. 8 of the Act.

Disposition

[58] Mr. Demers seeks a Declaration from this Court. I conclude that he is successful in his Application. The evidence supports that the neighbours’ boathouse requires a building permit in accordance with s. 8 of the Act. For the reasons noted previously, I hereby grant the following Declaration:

The fabric covered framed building erected at 3496 Round Lake Road, Round Lake, Ontario, is a structure the construction/erection of which first requires a building permit to be obtained from the appropriate municipal officers of the Township of Killaloe-Hagarty-Richards

Costs:

[59] At the hearing, the parties provided me with their Costs Outlines.

[60] A successful party is presumptively entitled to costs in a reasonable amount (Boucher v. Public Accountants Council for the Province of Ontario at 302, paras. 24, 26 [Boucher]). The amount awarded is intended to be fair and reasonable for the unsuccessful party, but not fixed by the actual costs incurred by the successful party (Boucher at paras. 24, 26).

[61] Mr. Demers seeks costs at the substantial indemnity amount of $14,404.25. His counsel claims 12.5 hours to draft the pleadings, 3.5 hours to draft additional affidavits, and 7.7 hours to prepare and review the facta. These amounts appear to be reasonable.

[62] The court has discretion to award costs pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and Rule 57.01 of the Rules (Goldman v. Weinberg, 2017 ONSC 4743 at para 4 (citing Chandra v. CBC, 2015 ONSC 6519)). Rule 57.01 sets out a number of factors to be considered in determining costs. In this matter, the two relevant factors are the importance of the issue to Mr. Demers (Rule 57.01(1)(d)), and the conduct of the Township that asserted a limitation period defence approximately 21 months after the commencement of Mr. Demers’ Application (Rule 57.01(1)(f)).

[63] Originally, Mr. Demers’ neighbours intended to erect a temporary boathouse, however, the structure remains over three years later; it is not temporary. The property has since been sold. The Township incorrectly allowed the neighbours to construct the boathouse without requiring a building permit.

[64] I have concluded that Mr. Demers is successful in his Application. Thus, as a result of the issue’s importance to him, and the conduct of the Township in unnecessarily arguing a limitation period defence approximately 21 months after the commencement of the Application, I award Mr. Demers his costs at the substantial indemnity amount. The costs are payable by the Township to Mr. Demers within 30 days of this Decision.

[65] I wish to express my gratitude to counsel for their capable submissions on this Application.

Justice M. O’Bonsawin Released: August 16, 2017