CITATION: WOODALL v. WHITCHURCH-STOUFFVILLE (TOWN), 2017 ONSC 5168 NEWMARKET COURT FILE NO.: CV-14-118824
DATE: 20170911
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kimberly Woodall, Applicant
AND:
The Corporation of the Town of Whitchurch-Stouffville, Respondent
BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN
COUNSEL: R. Andrew Biggart, counsel for Respondent
Kimberly Woodall, self-represented
HEARD: August 24, 2017
ENDORSEMENT
[1] Kimberly Woodall is the owner of a rural residential property at 18 Coultice Drive in the Town of Whitchurch-Stouffville. On February 10, 2014, the dwelling was partially damaged by fire. The Town of Whitchurch-Stouffville (the Town) issued an Unsafe Order, the next day, on February 11, 2014. On May 7, 2014, the Town issued a Vacate and Demolition Order. Shortly thereafter Kimberly Woodall, as Applicant, brought an application for an order setting aside and quashing the demolition order. The Town, as Respondent, opposed the relief sought.
[2] The issue first came before the court and was resolved on consent, on an interim basis, by reason of the Order of Edwards J. on January 28, 2016. The consent order resulted in the issuance of a building permit but was made subject to conditions in that order requiring the Applicant to take significant steps before occupancy could be granted by the Town.
[3] The Applicant took none of the required steps. The Town now brings this motion seeking an Order for the demolition of the subject property in accordance with the May 7, 2014 Vacate and Demolition Order. The Town also seeks an order finding Kimberly Woodall in contempt for failing to comply with the order of Justice Edwards.
[4] This motion first came before McCarthy J. on August 3, 2017. Ms. Woodall, who has been acting in person throughout these proceedings, was given time to retain legal counsel to assist her. The Town was also given leave to file a further affidavit in support of its position. The matter was then adjourned to August 24, 2017. In accordance with Justice McCarthy’s order, the Town filed a further affidavit of Andrew Jurrius, Chief Building Official.
[5] On consent, Kimberly Woodall filed the affidavit of Neil Swanson dated August 24, 2017.
The Relationship of Neil Swanson
[6] It is clear that throughout these proceedings, Mr. Swanson has been assisting Ms. Woodall, not only with respect to pursuing a building permit, but also by conducting some restorative construction work on the property. At the time of the fire she was not living in this residence, she was living in a residence next door owned by Neil Swanson. Mr. Swanson’s affidavit of September the 3, 2015 filed in connection with the original application sets out at paragraph 8 as follows:
Kim agreed to sell 18 Coultice back to me when my financial situation improves. She agreed that if the house were ever sold to someone other than me for full market value because she purchased it from me for half the fair market value, I would have a financial interest in the property.
Mr. Swanson’s Motion
[7] Mr. Swanson brought a motion returnable at this hearing asking that he be added as a party to these proceedings.
[8] The Town opposed the relief sought and submitted that its only purpose was to delay the proceedings. The Town pointed out that Mr. Swanson has been assisting Ms. Woodall throughout and filed affidavits with respect to the previous motion considered by Justice Edwards and for this motion when it first appeared before McCarthy J. on August 3, 2017. He did not seek to be added prior to the return of this motion.
[9] The Town further submitted that it was only after the extension granted by McCarthy J. on August 3, 2017 that Woodall created a registered interest in the land by causing a transfer of title to be registered conveying a one per cent interest to Neil Swanson, while retaining a 99 per cent interest for herself.
[10] For oral reasons given at the return of this motion, Mr. Swanson’s requested relief was not granted. However, he did have leave to assist Ms. Woodall and to make representations for her.
Building Permit Request
[11] It is clear that Ms. Woodall has been seeking a building permit to repair this property since the fire in 2014. A building permit was issued as a result of Justice Edwards’ order but with terms set out in that order. The Town submits she has not complied with these terms.
[12] A review of the following events will provide context for the discussion that follows.
The Fire
[13] There was a fire at Ms. Woodall’s residential property on February 10, 2014. Pictures of the dwelling and fire damage were filed as exhibits. The subject property is a 1000 square foot frame bungalow, approximately 60 years of age. Ms. Woodall’s affidavit of September 3, 2015 would suggest that the fire damage to the house was minimal. As she states in paragraph 14:
The majority of the damage is a light smoke residue that has cleaned up nicely with soap and water. Structurally speaking all the rooms of the house on both the main floor and the basement; except for the washroom area where the fire was, are intact and only require cleaning.
[14] As she further noted at paragraph 11: “A 100-square foot area, only ten percent of the 1000-square foot house, was burned by fire.”
[15] However, her own expert report from AcmEng Engineering Consultants Inc. suggests that there was more serious damage requiring remediation with the assistance of a structural engineer. The report suggests the house can be repaired. But, in order to do so, the consultant recommended the following:
(i) clean up the whole area and engage a fire restoration contractor;
(ii) temporarily support the damaged area;
(iii) replace structural damaged joists, rafters and sheathing, floor joists and bathroom external wall and above-ground foundation.
[16] The report also suggests that the remedial work conform to the Ontario Building Code and that a licensed electrician, HVAC technician, and plumber should be retained to inspect the damage.
Unsafe Order
[17] The Town issued an Unsafe Order on February 11, 2014, the day after the fire. That order provided the following description: “Due to a severe fire within the single detached dwelling, the building is declared structurally inadequate and unsafe for any use or habitation.” The owner was required to take action including fence off the property, to prevent unauthorized entry.
[18] The order further stipulated: “Failure to comply with this order could result in a demolition order.”
Vacate and Demolition Order
[19] The Town issued a Vacate and Demolition Order on May 7, 2014. The order noted:
Due to the property owner failing to make safe the single detached dwelling which was severely damaged by fire (which cannot reasonably be repaired), and for failing to ensure that access was not reasonably prevented…the building at 18 Coultice Drive is hereby ordered to be kept vacant, then demolished.
Woodall’s Application
[20] Kimberly Woodall brought an application on May 23, 2014 seeking an order setting aside and quashing the Demolition Order. Detailed affidavits from Kimberly Woodall and Neil Swanson were included in her materials.
The Order of Justice Edwards
[21] The Town opposed the relief sought in her application. Ultimately the matter came before Justice Edwards on January 28, 2016. The parties arrived at a consent order requiring the Town to issue a building permit to enable the restoration of the structure, however, the order contained significant terms. Paragraph 1 of the order required Ms. Woodall to take seven significant steps within six months of the order. These steps, if taken, would have enabled the Town to confirm whether or not the home was suitable for occupancy. Although all the steps are detailed in the order, the following is a summary of the steps set out in that order:
(a) sign a commitment to general review by an architect and/or engineer;
(b) retain the services of an architect and/or professional engineer to oversee the work;
(c) have the architect and/or engineer inspect elements of the home and provide a summary of the repairs necessary to bring the home into general conformity with the Building Code;
(d) have the architect and/or professional engineer submit a report confirming that repairs have been done;
(e) retain the services of an environmental expert re: environmental testing within the home;
(f) obtain the report an environmental expert confirming that the home is suitable for occupancy; and
(g) conduct any remedial work in the home as determined by the environmental expert.
[22] These were the steps Ms. Woodall agreed to take within six months to avoid the demolition order. No steps were taken by Ms. Woodall to comply with the terms of this order within the six-month period or at any time thereafter prior to the Town’s motion on August 3, 2017, over 18 months later.
[23] Justice Edwards provided an opportunity for Ms. Woodall to speak to the court thereafter. As he stated in paragraph 2: “should Ms. Woodall not comply with the terms of this order or should Ms. Woodall claim to be unable to comply with the terms of this order, the Court may be spoken to upon request of either party.” Ms. Woodall made no such request, notwithstanding her ability to do so pursuant to the terms of the order.
[24] The only explanation for lack of activity with respect to conditions in the order is set out by Neil Swanson in his affidavit of August 24, 2017. As he states as paragraph 16:
We were not able to start this work last summer. We were still recovering financially from the first legal round. Also had a major car breakdown that forced us to purchase another vehicle in the spring of 2016 as well as tenant rental difficulties at my shared accommodation residence at 17 Restnook Lane. So the whole year was a game of financial catch-up leaving us short of money to hire the engineer and materials.
The First Step
[25] It appears that after service of the Town’s motion for an Order for demolition and after the adjournment of McCarthy J. on August 3, 2017, Ms. Woodall took the first step to engage an engineer. As part of his affidavit material, Mr. Swanson attached a “Commitment to Review” form apparently signed by Sharad Kaiakkar for Alpha Design and Construction. There was no affidavit in support filed by Ms. Woodall or this engineer indicating that he was aware of the specific terms of Justice Edwards order or the scope of work that was required to be supervised by an architect or engineer. Nor did Ms. Woodall provide an affidavit indicating how she could advance through the eight steps set out in the order. There were no commitments from an architect or engineer or an environmental expert or licensed plumber, HVAC installer or electrician as to their involvement in the stages required.
Affidavit of Andrew Jurrius
[26] Mr. Jurrius is the Chief Building Official for the Town of Whitchurch-Stouffville. He swore a detailed affidavit on July 14, 2017 in connection with The Town’s motion for a demolition order. He has not been cross-examined. His affidavit provides a detailed history of the proceedings between the Town and Ms. Woodall.
[27] Mr. Jurrius or his officials have had an opportunity to attend the property on numerous occasions. As to non-compliance with the order of Justice Edwards, he stated at para. 16: “As of the date of swearing this affidavit, not a single report identified and required to be filed in accordance with the order has been filed with the Town.”
[28] Over three years after the fire on the property, his ongoing concerns are set out in para. 19:
As the Chief Building Official for the Town of Whitchurch-Stouffville, I continue to be of the strong opinion that this building must be demolished for the safety of persons in the area. I am concerned not only for the safety of the owner and of the premises but also of any tenants or intruders, including children, who may enter the premises.
Mr. Jurrius up-dated Affidavit of August 2, 2017
[29] Mr. Jurrius notes at para. 8:
The property at 18 Coultice Drive still remains in its dilapidated and dangerous condition and continues to pose a threat to the safety of the public. …[N]o measures have been taken to secure the construction area from the public.
[30] Mr. Jurrius notes that he attended the property personally on July 31, 2017 and observed Mr. Swanson “attempting to reframe the burned out areas of the property with wooden shims and without any guidance.” He further states,
The work I observed being carried out by Mr. Swanson is in non-compliance with the building permit issued by the Town on February 1, 2016 which states that “no construction shall proceed until completed ‘commitments to general reviews by architect and engineers’, has been submitted to the Town for each of the related works”.
[31] Mr. Swanson does not dispute that he has been doing work on the property. As he notes in his affidavit of August 3, 2017,
The basement concrete floor was cut and footings dug for additional I-beam support posts as per the architectural drawings. Inspection holes were also drilled into the concrete floor adjacent to the existing posts to confirm the presence of footings…having removed the last of the burnt material from the washroom area we then installed the new structural components.
Conclusion
[32] I am satisfied on the record before me that the Town is entitled to an order approving the demolition of 18 Coultice Drive, Whitchurch-Stouffville as first requested by its Vacate and Demolition Order of May 7, 2014. The following points inform my decision:
the Applicant has been on notice since the Unsafe Order issued immediately after the fire in 2014 that “failure to comply could result in a demolition order”;
the Applicant took no steps within the six month period granted by Justice Edwards to satisfy the eight steps set out in that order. An order which she consented to;
the Applicant took no further steps for months thereafter until she was served with a motion requesting demolition of the residence returnable before McCarthy J.;
the Applicant, only days before the return of this motion, appears to have engaged the services of an engineer to visit the site;
there was no evidence from the engineer that he understood the terms or the scope of work contemplated in the order of Justice Edwards;
the Applicant has not set out a budget or timeline to indicate how she could now comply, some 18 months later, with the eight steps set out in Edwards J.’s order which required the supervision of an architect or engineer as well as reports from an environmental expert and inspections by an electrician, plumber and HVAC installer;
the Applicant transferred a one per cent interest in the property to Mr. Swanson in an effort to support his application to be added to the proceedings and to request an adjournment. Given Mr. Swanson’s previous involvement in her Application and their relationship, I see no good faith reason for such a transfer just before the return of this motion;
The Contempt Order
[33] It is not disputed that Ms. Woodall did not take any steps to comply with the order of Edwards J. within the six-month period or at any time reasonably thereafter. Mr. Swanson’s affidavit sets out financial reasons why the order could not be complied with but I note that Edwards J. provided an opportunity for her to return to speak to the matter, if necessary, and she did not do so.
[34] I, therefore, have no hesitation in finding Kimberly Woodall in contempt of the order of Justice Edwards of January 28, 2016.
[35] As I indicated to Ms. Woodall at the hearing, the penalty phase of a contempt hearing is a separate procedure. I therefore adjourn the penalty phase of the contempt order sine die to be brought back on ten days’ notice to Ms. Woodall by personal service upon her, should the Town be so advised. Ms. Woodall will then have an opportunity to respond to purge her contempt and to provide an explanation for non-compliance before any penalty is imposed. As I stated on the record, and I repeat here, the order to demolish the property is not a penalty for contempt, it is the result of the Town’s successful motion for an order for demolition.
Costs
[36] The Town has been wholly successful in this motion. If costs are sought by the Town, it may serve and file costs submissions not exceeding five pages together with a Bill of Costs within 30 days of the release of this decision, to be sent in care of my judicial assistant at Barrie. Ms. Woodall will then have 15 days to respond to the costs sought by the Town, such response not to exceed five pages.
[37] Because Ms. Woodall is self-represented, her approval as to the form and content of this order is hereby waived provided that the Town serves her by regular mail seven days before any such order is issued and entered.
Mulligan J.
DATE: September 11, 2017