COURT FILE NO.: CV-18-2418-00 DATE: 20190108

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JOSEPH MICHAEL BOZZELLI and AMANDA BOZZELLI Frank C. Carlone, for the Appellants Appellants (Responding Parties on the Motion)

• and -

THE CORPORATION OF THE TOWN OF CALEDON Alana Vandervoort, for the Respondent Respondent (Moving Party)

HEARD: November 21, 2018

Ruling on Motion for Directions on Appeal under the Building Code Act, 1992

DALEY, RSJ.

Background and Evidentiary Record

[1] The moving party The Corporation of the Town of Caledon (“Caledon”) moves for directions of the court in relation to an appeal brought by the responding parties (the “Respondents”) under s. 15.1 (4) of the Building Code Act, 1992.

[2] Caledon seeks directions and a determination by the court that the appeal shall proceed under Rule 62 of the Rules of Civil Procedure and that compliance with Rule 62.01 (7) and (8) be dispensed with.

[3] Caledon is a municipal Corporation in the Province of Ontario and the respondents are the owners of the property within its jurisdiction municipally known as 15 Rowley Drive (the “Property”).

[4] The Property is zoned as Estate Residential. The zoning imposes a site-specific structure envelope on the Property and all property located outside of the structure envelope are indicated to be a restricted natural area where no alteration or disturbance to the surface or vegetation on the land is permitted.

[5] It is common ground that approximately 29–30 unlicensed, unused or derelict vehicles are located outside the structure envelope within the natural area where no alteration or disturbance to the surface or vegetation on the land is permitted based on the applicable zoning.

[6] By way of background to this motion and the pending appeal, a municipal law enforcement officer employed by Caledon issued a Property Standards Order to the respondents on February 16, 2018 and that order directed that the respondents remove all unlicensed, unused and derelict motor vehicles that were found on the exterior of the Property by March 26, 2018.

[7] The respondents appealed that order to Caledon’s Hearing Tribunal which was established in accordance with s. 15.1 (3) of the Building Code Act, 1992.

[8] Caledon’s Hearing Tribunal heard the appeal from the Order and issued a notice of decision on April 30, 2018 confirming the order of the municipal law enforcement officer and extending the compliance date from March 26, 2018 to September 3, 2018 and ordered that Caledon not take any enforcement action until that compliance date had passed.

[9] The respondents thereafter commenced the subject appeal on May 14, 2018 pursuant to Rule 61 of the Rules of Civil Procedure. The respondents, in their appeal, seek to introduce fresh viva voce evidence in a de novo hearing before the Superior Court of Justice sitting as an appellate court within the context of Rule 61.

[10] It is the position of Caledon that the respondents’ pending appeal is improperly constituted under Rule 61.

[11] The respondents on their appeal do not seek to set aside the decision of the tribunal confirming the order of the municipal law enforcement officer, but rather seek to extend the time for compliance with that order calling for the removal of the motor vehicles from the Property to October 30, 2019 and that no enforcement of the initial order should be undertaken by Caledon prior to that date.

Analysis:

[12] Caledon on its motion seeks direction from the court on the following issues:

(1) Which Rule of the Rules of Civil Procedure provides the proper procedure for a statutory appeal to a judge of the Superior Court of Justice pursuant to s. 15.3 (4) of the Building Code Act, 1992?

(2) Is an appeal under s. 15.3 (4) of the Building Code Act, 1992, a hearing de novo? If so, is viva voce evidence on the appeal justified and desirable for the fair and expeditious determination of the appeal?

[13] Section 15.3 (4)–(7) of the Building Code Act directs that appeals of the decisions of municipal property standard committees proceed to a judge of the Superior Court of Justice and those subsections read as follows:

Appeal to court

(4) The municipality in which the property is situate or any owner or occupant or person affected by a decision under subsection (3.1) may appeal to the Superior Court of Justice by notifying the clerk of the municipality in writing and by applying to the court within 14 days after a copy of the decision is sent. 2002, c. 9, s. 24.

Appointment

(5) The Superior Court of Justice shall appoint, in writing, a time and place for the hearing of the appeal and may direct in the appointment the manner in which and the persons upon whom the appointment is to be served. 2002, c. 9, s. 24.

Judge’s powers

(6) On the appeal, the judge has the same powers and functions as the committee. 1997, c. 24, s. 224 (8).

Effect of decisions

(7) An order that is deemed to be confirmed under subsection (2) or that is confirmed or modified by the committee under subsection (3) or a judge under subsection (6), as the case may be, shall be final and binding upon the owner and occupant who shall carry out the repair or demolition within the time and in the manner specified in the order. 1997, c. 24, s. 224 (8).

[14] The appeal procedure to bring a matter before a judge of the Superior Court of Justice, however, is not set out in the Building Code Act, 1992, nor are there any rules as to the form of the application to the Superior Court of Justice, the materials required on the appeal or any other procedural elements including the time for service and filing of appeal materials.

[15] Counsel for Caledon submitted that there are three possible candidate rules that may be engaged on an appeal of this type, namely Rule 61, Rule 38 or Rule 62.

[16] In my view, Rule 61 has no application to this appeal process, as Rule 61.01 expressly indicates that the types of appeals governed by that rule and the related rules apply to an “appellate court” as defined in Rule 1.03 (1) namely to the Court of Appeal or the Divisional Court.

[17] Section 15.3 of the Building Code Act, 1992 provides that an appeal under that section is to a “judge” of the Superior Court of Justice and as such the appeal does not lie to the Court of Appeal or the Divisional Court.

[18] As to Rule 38, the respondents have instituted their appeal by way of an application as provided for by Rule 38. However, Rule 14.05 (2) provides as follows:

A proceeding may be commenced by an application to the Superior Court of Justice or to a judge of that court, if a statute so authorizes.

[19] As between Rules 62 and 38 the legal construction maxim – generalia specialibus non derogant -is of assistance in determining which of these rules is more properly engaged in the present circumstances.

[20] The Supreme Court of Canada in its decision in Canada v. Williams, [1944] SCR 226 at pgs 9 – 10 Hudson J stated:

The maxim generalia specialibus non derogant is relied on as a rule which should dispose of the question, but the maxim is not a rule of law but a rule of construction and bows to the intention of the legislature, if such intention can reasonably be gathered from all of the relevant legislation.

[21] Further, the Rules of Civil Procedure provide in Rule 1.04 (2) – “Where matters are not provided for in these rules, the practice shall be determined by analogy to them.”

[22] I have concluded that on the proper application of the maxim of construction and considering the intention of the legislature, Rule 62 applies as the more specific rule setting out the procedure for an appeal brought under s. 15.3 (4) of the Building Code Act, 1992, with any procedure not specifically provided for under that rule drawn from Rule 38 by analogy.

[23] During the course of the submissions from counsel, counsel for the respondents indicated that he was less concerned with the procedural route to be followed to advance his client’s appeal, but more concerned with whether the appeal would be treated as a hearing de novo and whether additional evidence could be adduced viva voce.

[24] It has been concluded by this court that appeals under s. 15.3 (4) of the Building Code Act, 1992, are hearings de novo in that the court hearing the appeal has the same powers and functions as a Property Standards Officer and a Property Standards Committee. Thus, I have concluded that the hearing of the appeal in this matter will proceed as a hearing de novo.

[25] As to the respondents’ position that they should be allowed to adduce viva voce evidence on the hearing de novo appeal – that request is based on the respondents’ position that section 15.3 (3.1) and (6) of the Building Code Act, 1992, which allows the court, on such an appeal, to proceed to consider the matter with all of the functions and powers of the Property Standards Officer and the Property Standards Committee. While the court has jurisdiction to allow viva voce evidence – other considerations must be examined first.

[26] It is clear that proceedings under Rules 61, 38 and 62 are to be determined on a paper record, without viva voce evidence. The hearing de novo form of appeal does not automatically give the appellant the right to adduce viva voce evidence within the context of any of these rules, and most notably under Rule 62.

[27] The circumstances of this appeal are exactly what is contemplated by Rule 1.04 and the overarching principle that the rules are to be construed “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits” recognizing that proportionality must be examined when considering the importance and complexity of the issues at stake.

[28] During his submissions, counsel for the respondents indicated that his clients may wish to call viva voce expert evidence, however the nature of that evidence was not explained, let alone was any evidence at all put forward on this motion so that the court could consider its nature and importance for the appeal.

[29] Again, the only issue at stake on this appeal is whether the order at first instance was in error in not providing sufficient time to the respondents to allow them to comply with the order to remove the vehicles from their property.

[30] In the result, I have concluded that the most expeditious and least expensive manner available to determine the issue on appeal is on a paper record in a hearing de novo: Castillo v. Xela Enterprises Ltd., 2014 ONSC 4209. As to any additional evidence to be offered it shall be by affidavit from the respondents, and such affidavit evidence shall be limited solely to the issue under appeal namely why the order under appeal has not been complied with and the time required for compliance. The merits of the underlying order, apart from the time imposed, shall not be included in any affidavit material submitted.

[31] In accordance with Rule 62.01 (9) the respondents shall serve and file any supplementary affidavit material as referenced to above within 30 days from the date of release of this decision. Caledon shall have 30 days thereafter to serve and file any responding affidavit material.

[32] Upon the filing of all affidavit material, counsel for the parties shall advise me by a joint letter that the matter is perfected and ready to proceed to a hearing and at that time the appeal will be scheduled by me on the first available date.

[33] Counsel for both parties shall file submissions as to costs within 15 days. The submissions shall be limited to 2 pages plus a costs outline. No reply submissions are to be filed.

DALEY, RSJ. Released: January 8, 2019