COURT FILE NO.: CV-17-1806-00
DATE: 2019 11 19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rick Conrad, Chief Building Official and The Corporation of the City of Brampton
Applicants (Responding Party to this Motion)
AND:
Ahmed Elbasiouni
Respondent (Moving Party to this Motion)
BEFORE: Ricchetti, J.
COUNSEL: Ahmed Elbasiouni, self-represented
B. Kussner for the Responding Parties to this Motion
HEARD: November 15, 2019
ENDORSEMENT
The Motion
[1] In a related proceeding regarding the same property, on January 15, 2018, this court declared Mr. Elbasiouni to be a vexatious litigant. See 2018 ONSC 74 ("Reasons").
[2] At paragraphs 143 and 144 of the Reasons, this court ordered the following:
Future Proceedings?
[143] To the extent that the Building Code Act proceeding (CV-13-1084) remains outstanding, no further steps or motions may be taken in that proceeding without the leave of a judge of the Superior Court of Justice.
[144] At this time I see no reason to grant a broader order than limiting it to matters relating to the Property. No further proceedings may be initiated or continued by Mr. Elbasiouni involving any claims, directly or indirectly, relating to 443 Centre Street, Brampton against any entity or persons including against the City, its councillors, its legal representatives, its agents, or its consultants.
[3] Mr. Elbasiouni now seeks leave to bring a motion in this proceeding which proceeding, as I will describe below, has been finally settled by the parties and disposed of by the court.
[4] This motion was brought by Mr. Elbasiouni on November 1, 2019. Mr. Elbasiouni seeks the following relief:
An order declaring that the Respondent, Ahmed Elbasiouni, did comply with the order of this Court issued on consent on July 25, 2017 by causing the existing structure on the property located at 442 Centre Street North, Brampton (the "Property") to be demolished and removed from the Property in its entirety before November 25, 2017.
[5] Essentially, Mr. Elbasiouni seeks to avoid the financial liability to the City of Brampton (“City”) under the Consent Order (described below) arising from costs incurred by the City for removing the foundations on the Property.
[6] At the conclusion of the hearing, I advised the parties that Mr. Elbasiouni's motion was dismissed with reasons to follow. These are those reasons.
Background
[7] There are a number of proceedings and appeals relating to the property in question: 443 Centre Street North, Brampton (the "Property").
[8] The issue before this court, in this proceeding (CV-17-1806-00), was the demolition and removal of the structure on the Property which had been allegedly unlawfully erected by Mr. Elbasiouni.
[9] On July 25, 2017, all parties were represented by counsel in court. The parties brought a motion in this proceeding to approve a "settlement of the within Application" in accordance with a draft consent order. The court granted the consent order sought ("Consent Order"). The Consent Order provided:
THIS COURT ORDERS that pursuant to section 38 of the Building Code Act, 1992, S.O. 1992, c. 23, as amended (the "Act"), the Respondent [Mr. Elbasiouni] is hereby directed to cause the existing structure on the property located at 443 Centre Street North, Brampton to be demolished and removed from the Property in its entirety within one hundred and twenty (120) days of the date of this Order.
THIS COURT ORDERS that in the event the Respondent fails to comply with the preceding Order within one hundred and twenty (120) days of the date hereof, the Applicants shall be entitled to remove or demolish the existing structure on the Property at the Respondent's expense, and the costs of such demolition may be collected in the same manner and with the same priority as municipal realty taxes.
[10] The Consent Order was issued and entered. The Application was spent.
[11] Mr. Elbasiouni removed everything above the foundations, in other words, the wooden shell of the home above the foundations. Mr. Elbasiouni did not remove the foundations or footings on the Property.
[12] There was no agreement between counsel that the foundations could remain on the Property or would be exempt from the demolition required by the Consent Order. Mr. Elbasiouni concedes this but points to some discussions between counsel on the issue. Discussions between counsel occurred over the summer and early fall of 2017. However, the City remained adamant that the foundations were to be removed pursuant to the Consent Order. Mr. Elbasiouni's position remained that the foundations did not need to be removed pursuant to the Consent Order.
[13] A letter was sent from the City's counsel to Mr. Elbasiouni's counsel on November 1, 2017 requiring that foundations be removed and the excavation be completely filled in to restore the Property to a safe condition. Mr. Elbasiouni denies that his lawyer sent him this letter.
[14] The vexatious litigant motion was heard on December 4, 2017. Mr. Elbasiouni was not present at this hearing but Mr. Elbasiouni's counsel was present. During the motion, the City raised Mr. Elbasiouni's non-compliance with the Consent Order.
[15] There is no doubt that Mr. Elbasiouni was aware of the City's position, as Mr. Elbasiouni was copied on communications between counsel over the days following the motion. Mr. Elbasiouni's materials include an email of December 5, 2017 from the City’s counsel to Mr. Elbasiouni's counsel again requesting that Mr. Elbasiouni remove the foundations, failing which the City stated it would retain a contractor to remove the foundations at Mr. Elbasiouni's expense, as per the Consent Order.
[16] The foundations remained on the Property.
[17] In December 2017, the City's contractor removed the foundations on the Property and restored the Property. Even, if Mr. Elbasiouni was out of the country until February 2018, as he suggests, Mr. Elbasiouni would have known of the removal of the foundations by the City shortly after he returned.
[18] Mr. Elbasiouni did nothing to deal with the City's actions despite knowing that the City would look to him for the cost of removing the foundations and restoring the Property.
[19] Mr. Elbasiouni sent an email to the City's counsel on November 16, 2018 regarding a motion he sought to bring for "an order declaring the compliance of the Respondent, Ahmed Elbasiouni, with the order issued on consent on July 25, 2017."
[20] The motion was not brought by Mr. Elbasiouni until November 1, 2019, a year later.
Analysis
[21] There are a number of issues to consider.
Is this court functus?
[22] The City submits that this court is functus. This proceeding has been settled in its entirety. This Application was disposed of by a final order.
[23] I agree there is a serious difficulty with this motion as framed. I accept that, only in rare circumstances can a court re-open a proceeding which has been finally disposed of - particularly when the final order was based on the consent of the parties, both represented by counsel. None of the circumstances set out in the Rules apply.
[24] While this alone is a basis to dismiss this motion, I recognize that Mr. Elbasiouni is self-represented. Had this motion been brought seeking to commence a new Application seeking the declaratory relief he now seeks, this ground of objection would not have been available.
[25] As a result, I prefer to dispose of this motion on the merits.
Is the foundation a structure?
[26] This motion appears to be nothing more than an attempt by Mr. Elbasiouni to circumvent the Consent Order.
[27] Mr. Elbasiouni submits that the foundations are not a "structure" and suggests that what was left was a "retaining wall" or a "landscape deck" or a "landscape wall", having used each of these descriptors to describe what was left on the Property. Mr. Elbasiouni reproduced the original survey drawing of the Property but changed the labels referring to the foundation walls to read "landscaping wall less than 0.6 [in some 0.01] meters in hight [sic]".
[28] The photograph Mr. Elbasiouni produced of the foundations (after the wooden structure above had been removed), clearly show the cement walls sticking out of the ground were built and intended to be foundations. They have rebar on them, typically used to attach the dwelling framing above. These cement walls do not appear to be "retaining" anything, not a landscape deck nor a landscape wall.
[29] The cement walls cannot reasonably or realistically be considered to be something else like a retaining wall or landscape wall, as Mr. Elbasiouni now suggests. These cement walls, with their footings, were the subject of construction plans originally submitted by Mr. Elbasiouni to the City as "foundations" for his building. The foundations were part of the City permit/approval process at the time. To suggest that the cement walls are now something else, like a retaining wall or a landscaping wall makes little sense.
[30] But let me go further.
[31] When Mr. Elbasiouni was asked whether this would mean that anyone could construct such cement walls without any permit and placed anywhere on their property, he agreed that anyone could do so. I find this makes little sense. This would ignore a City's set back requirements, or the City authority to ensure Building Code compliance for footings or the cement walls on properties.
[32] Mr. Elbasiouni included, in his materials, a definition of "structure" which states:
..anything that is erected, built or constructed, the use of which requires locations on the ground or attachment to something having location on the ground, but shall not include fences.
[33] It would appear from this definition that the cement walls were constructed and required "having locations on the ground". Prima facie the cement walls appear to meet the definition of structure. The definition excludes such things as fences, not something entirely different such as cement walls in the ground, on footings, with rebar sticking out.
[34] Mr. Elbasiouni included, in his materials, a definition of "landscape walls" to support his position that these cement walls are "landscaping walls". The definition he includes provides that a landscape wall is:
...a deck or similar structure less than 0.6 of a metre above ground level used in the same manner as landscaped open space.
[35] I simply cannot imagine anyone considering the remaining cement walls with the rebar sticking out as a "deck or similar structure" or being used as a landscape open space.
[36] I conclude, there is simply no merit even possible merit to this motion, based on Mr. Elbasiouni's motion materials.
[37] On this basis alone, Mr. Elbasiouni's motion is dismissed.
Why not claim damages in the existing proceeding?
[38] Lastly, Mr. Elbasiouni has a current proceeding against the City (CV-15-0867) (“Tort Claim”) where he advances claims seeking damages flowing from the City's approval of a building permit for this Property and the subsequent revocation of that permit.
[39] I see no reason why Mr. Elbasiouni's claim for the removal costs of the foundations, had he chosen to remove the foundations pursuant to the Consent Order, could not have been part of the damages claimed in the Tort Claim.
[40] Mr. Elbasiouni chose not to remove the foundations himself and include the expense in the Tort Claim. Instead, he chose to let the City incur costs to remove the foundations. Whether or the amount Mr. Elbasiouni may be entitled to recover as damages relating to the removal of the foundations, if he is successful, will be up to the trial judge based on the evidence before the court in the Tort Claim.
[41] Put another way, it makes no sense to have a separate proceeding to deal with possible damages regarding the removal of the foundations when this could (and will likely be) have been dealt with by Mr. Elbasiouni in the Tort Claim.
[42] This is yet another basis to dismiss the motion.
The inordinate delay?
[43] Mr. Elbasiouni had no cogent or reasonable explanation for the almost two-year delay in bringing this motion. His explanations that he was briefly out of the country, busy with other legal matters including appeals, is not a reasonable explanation for this inordinate delay.
[44] This factor would weigh against the exercise of this court's discretion, however limited that discretion might be, on this motion against granting leave.
Conclusion
[45] I decline to grant leave to bring this motion in this proceeding or to commence a separate proceeding regarding this alleged claim. Mr. Elbasiouni's motion is dismissed.
[46] As set out on the record and for the reasons expressed, costs are payable by Mr. Elbasiouni to the Applicants on this motion in the amount of $1,500 all inclusive, payable forthwith.
Ricchetti J.
Date: November 19, 2019
COURT FILE NO.: CV-17-1806-00
DATE: 2019 11 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RE: Rick Conrad, Chief Building Official and The Corporation of the City of Brampton, Applicant (Responding Party to this Motion)
AND:
Ahmed Elbasiouni, Respondent (Moving Party to this Motion)
COUNSEL:
Ahmed Elbasiouni, self-represented
B. Kussner for the Responding Parties to this Motion
ENDORSEMENT
Ricchetti J.
Released: November 19, 2019