Court File and Parties

Chatham Court File No.: CV-20-00000569-0000 Date: 2020-12-02 Superior Court of Justice - Ontario

Re: Fida Hussain and 5034929 Ontario Inc., Appellants And: The Corporation of the Municipality of Chatham-Kent, Respondent

Before: Howard J.

Counsel: Kinza Haider, for the Appellants David V. Taylor, for the Respondent

Heard: November 3, 2020

Endorsement

Overview

[1] The appellants seek to appeal three separate orders made under the Building Code Act, 1992[^1] by a building inspector employed by the respondent municipality in respect of the property municipally known as 24254 Winterline Road North, Pain Court, which is situate in the Municipality of Chatham-Kent (the "Property").

[2] The appellant Fida Hussain was the owner of the Property at the time the three orders were made and at the time the appeal was commenced.

[3] The appellant 5034929 Ontario Inc. ("503") is the current owner of the Property. Title to the Property was transferred by Mr. Hussain to 503 on the afternoon of Friday, September 25, 2020, a few short days before the hearing of this appeal on its merits had originally been scheduled to proceed before me, on Monday, September 29, 2020. There was no consideration paid by 503 for the purchase of the Property; the transfer indicates that title was conveyed as a gift.

[4] The eleventh-hour sale of the Property effectively required that I adjourn the hearing of the appeal on September 29, 2020, in order to provide for 503's participation in the argument on the merits of the appeal, which I did at the request of the appellants.

[5] As well, on September 29, 2020, I issued an order pursuant to subrule 11.02(1) of the Rules of Civil Procedure[^2] to continue the appeal proceeding with both Mr. Hussain and 503 as the appellants.

[6] Subsequently, 503 retained Ms. Haider to represent its interests on the appeal, being the same counsel that had been retained previously by Mr. Hussain.

[7] For the reasons that follow, the appeal must be dismissed.

Factual Background

[8] The evidence before the court indicates that for the eight years prior to the issuance of the three orders under appeal, the Fire Department and/or Building Department of the respondent municipality had issued several orders to the owner of the Property for "insufficiencies with the building," including, for example, holes in the roof, resulting in leaking; mould; window and door leaks; electrical issues; insufficient heat; garbage accumulation; flea, cockroach, and mice infestations; derelict vehicles; missing drywall; and insufficient lighting.

[9] On or about January 14, 2020,[^3] Travis Maxwell, a Building Inspector/By-Law Enforcement Officer for the respondent municipality, performed an inspection of the Property. The handwritten notes that the building inspector made from that inspection were in evidence before the court, as well as his typewritten notes as contained in his "Code Enforcement Case Diary." These notes lay out the observations of the building inspector and his concerns for the structural safety issues and property standards issues with the Property. The detailed notes of Mr. Maxwell were made contemporaneously with the inspector's observations, inspections, and dealings with other persons.

[10] On January 15, 2020, Mr. Maxwell issued an unsafe building order in respect of the Property, pursuant to s. 15.9(4) of the Building Code Act, which permits an inspector who finds that a building is unsafe to make an order setting out the reasons why it is unsafe, to detail the necessary remedial steps required to make it safe, and the deadline by which that work must be carried out (the "Unsafe Building Order"). The Unsafe Building Order was served on the then owner of the Property, the appellant Hussain, on January 16, 2020.

[11] The Unsafe Building Order provided notice to Mr. Hussain of the municipality's concerns, including, inter alia, that:

The structural piers and foundation which support the load of the building are deteriorating and eroding and may no longer provide the required structural support to withstand the loads imposed by the building.

[12] To that end, the Unsafe Building Order required Mr. Hussain to "immediately retain the services of a Professional Structural Engineer licensed by the Professional Engineers of Ontario to complete a report attesting to the structural integrity of the foundation and piers in the basement." The said Order directed Mr. Hussain to submit the required report no later than February 17, 2020.

[13] Also on January 15, 2020, Mr. Maxwell issued a property standards order in respect of the Property, pursuant to s. 15.2(2) of the Act, which permits an officer who finds that a property does not conform with any of the standards prescribed in a municipality's by-law may make an order that, inter alia, provides particulars of the repairs to be made, the deadline by which those repairs are to be completed, and the final date for commencing an appeal of the order (the "Property Standards Order"). The Property Standards Order was served on Mr. Hussain on January 16, 2020.

[14] The Property Standards Order was quite detailed, running some 22 pages in length, described the required standards and observed deficiencies, and set out what remedial action was required. The noted deficiencies included, inter alia, the disrepair of the roof of the building, resulting in water leakage; the general unsanitary condition of the premises; the excessive pest infestation, including cockroaches; the leaking ceilings in apartments; damaged drywall in apartments; exposed electrical wiring in residential premises; the accumulation of mould in residential premises; a "charred and burnt electrical outlet in the bathroom" of one of the residential premises; and the like.

[15] In particular, page 6 of the Property Standards Order noted the violation of the municipality's by-law resulting from the observed "deteriorating condition of the foundation and piers in the basement. The foundation appears to be crumbling and deteriorating and the brick piers are deteriorating and crumbling where full support is no longer provided to the beams and members being supported by the piers."

[16] Like the Unsafe Building Order, the Property Standards Order also required Mr. Hussain to retain a structural engineer licensed to complete a report attesting to the structural integrity of the foundation and piers in the basement. Again, the said Order directed Mr. Hussain to submit the required report no later than February 17, 2020.

[17] While both the Unsafe Building Order and the Property Standards Order required the owner to retain an engineer to address the serious structural concerns identified by the building inspector, no such report was ever provided by Mr. Hussain.

[18] Accordingly, in the absence of the required report being submitted by Mr. Hussain (in contravention of both Unsafe Building Order and the Property Standards Order), Mr. Maxwell retained an engineer on behalf of the municiaplity, as he felt it necessary to determine whether his concerns regarding the structural integrity of the building were valid.

[19] I pause to note that there is nothing in the statutory scheme under the Building Code Act that required Mr. Maxwell to retain an engineer. It is plain that while both orders of January 14, 2020, required Mr. Hussain to retain an engineer to address the structural integrity issues, when the owner failed to take the required action, and when some months had passed without the owner taking the required action, Mr. Maxwell took the extra step of ensuring that an engineering report was obtained in order to confirm whether his concerns were valid. I regard that action as reflecting upon Mr. Maxwell's prudence and caution – qualities quite inconsistent with the appellants' unrestrained allegations of abuse of power by the inspector.

[20] To that end, Mr. Maxwell retained a structural engineer, Len Jobin, in connection with the Property. Mr. Maxwell and Mr. Jobin inspected the Property and, subsequently, Mr. Jobin delivered a report dated April 7, 2020, to the municipality in which he concluded that the building on the Property is unsafe in its current condition and that either shoring and foundational reconstruction is required or, alternatively, demolition is an option, given the potentially prohibitive costs of the repair.

[21] In particular, Mr. Jobin's report provides that:

The foundation and floor framing has many issues: damaged bearing walls; missing post and footing supports; many broken or cut floor joists; timber beams that have been cut; timber beams bearing on foundation walls and fully crushing the wall plate with virtually no bearing; settlement of brick foundation walls/footings; large holes in foundation walls and instances of crumbling footings which fail to support the beams above.

[22] Mr. Jobin concluded that, "[i]t is my opinion that the building is unsafe in its current condition."

[23] The evidence before the court indicates that, following the issuance of the Unsafe Building Order and the Property Standards Order, Mr. Maxwell conducted various follow-up inspections and contacted the owner or his property manager on various occasions regarding his concerns.

[24] The respondent acknowledges that Mr. Hussain performed or caused to be performed certain remedial work; however, as Mr. Maxwell's evidence indicates, "the work performed by the owner over the months since these orders is superficial in nature. For example, some painting and dry-walling was performed. However, the core safety issues with this Property have not been addressed, and in fact the owner has not taken any significant steps to begin addressing these issues." Again, the core safety issues with the Property implicated the structural integrity of the building.

[25] Ultimately, an order prohibiting the occupancy of the building on the Property was made by the respondent municipality on July 7, 2020, based on Mr. Maxwell's inspections, the engineering report, and the failure of the owner to address the concerns (the "Occupancy Order"). The Occupancy Order was made pursuant to s. 15.9(6) of the Building Code Act, which provides that if a building inspector's order is not complied with within the prescribed time, the Chief Building Official may prohibit the building's use or occupancy and may order the building's renovations, repairs, or demolition to remove the unsafe condition "or take such other action as he or she considers necessary for the protection of the public." The Occupancy Order was served on Mr. Hussain on July 7, 2020.

[26] On July 9, 2020, the respondent municipality received Mr. Hussain's appeal in respect of the three orders.

[27] The Occupancy Order required that all tenants vacate the building and that the building be secured by having all windows and doors to the building boarded up by July 21, 2020. As of July 22, 2020, two residential units in the building remained occupied and the securing of the building had not yet commenced. On July 22, 2020, the respondent municipality had a contractor attend at the Property to secure the vacated units by boarding up windows and locking doors. The respondent municipality was intent upon securing the rest of the building once the two remaining tenants vacated.

[28] On August 11, 2020, the parties appeared before George J., and the appellants requested a stay of the operative orders pending appeal, which George J. granted for reasons released August 12, 2020.

[29] As of the date of the hearing before George J., all of the tenants had vacated the Property, and the building has since sat vacant.

Issues

[30] The respondent municipality raises various preliminary objections on the appeal. The following issues arise out of the parties' materials:

a. Is the appeal out of time and, if so, should the appellants be granted an extension of time?

b. Have the appellants followed the proper appeal route in respect of the Property Standards Order?

c. Is the appeal in respect of the Occupancy Order moot?

d. Should portions of the appellants' material be struck?

e. If the preliminary objections of the respondent municipality do not dispose of the appeal, should the appeal succeed on its merits?

Analysis

Is the appeal out of time and, if so, should the appellants be granted an extension of time?

[31] The appellants seek to appeal the three orders to this court pursuant to s. 25 of the Building Code Act, which provides that:

Appeal to court

25 (1) 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.

Extension of time

(2) A judge to whom an appeal is made may, upon such conditions as the judge considers appropriate, extend the time for making the appeal before or after the time set out in subsection (1), if the judge is satisfied that there is reasonable grounds for the appeal and for applying for the extension.

Effect of appeal

(3) If an appeal is made under this section in respect of a matter in which a question is pending before the Building Code Commission, the proceeding before the Commission is terminated.

Powers of judge

(4) 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.

Reference to Commission

(5) A judge may refer a question respecting the interpretation of the technical requirements of the building code or the sufficiency of compliance with the technical requirements of the building code to the Building Code Commission for a hearing and report to the judge.

Procedure

(6) The procedure on the reference shall be the same as on an application under section 24.

Stay of order or decision

(7) An appeal under subsection (1) does not stay the operation of the order or decision appealed from but a judge may, on such terms as are just, stay the operation of the order or decision until the disposition of the appeal.

[32] It is common ground that the Occupancy Order, made July 7, 2020, was appealed within the applicable appeal period. There is no preliminary objection regarding the timeliness of the appeal in respect of the Occupancy Order.

[33] Rather, the respondent municipality objects to the timeliness of the appeal in respect of the Property Standards Order and the Unsafe Building Order.

[34] As I have said, both the Unsafe Building Order and the Property Standards Order were made on January 15, 2020. The 20-day appeal period following the date the orders were made, as prescribed by s. 25(1) of the Act, expired on February 4, 2020.

[35] I pause to note that, while reference was made in argument to the suspension of limitation periods and procedural time periods that came into effect as of March 16, 2020, pursuant to regulations[^4] made under s. 7.1(2) of the Emergency Management and Civil Protection Act,[^5] in my view, the suspension of limitation and time periods is irrelevant in the circumstances of the instant case. The 20-day appeal period expired on February 4, 2020 – more than a month before the suspension came into effect on March 16, 2020.

[36] It is common ground that the appellants did not appeal either order within the 20-day appeal period prescribed under the Act.

[37] As such, the instant appeal in respect of the Property Standards Order and Unsafe Building Order cannot succeed unless the court exercises its discretion under s. 25(2) of the Act to grant a retroactive extension of the time for commencing the appeal.

[38] The parties are agreed that the applicable test for granting an extension of time of the appeal period under s. 25(2) of the Act is governed by the Ontario Court of Appeal's decision in Mauldin v. Cassels Brock & Blackwell LLP (although that case did not involve an appeal under s. 25(2) of the Building Code Act), where the Court of Appeal held that:

Although this motion involves a request for leave to extend time to perfect an appeal, it is useful to consider the factors that apply when determining whether to exercise discretion to extend the time for filing a notice of appeal. Those factors are:

• Has the appellant maintained a firm intention to appeal within the relevant time period?

• Has the appellant provided a reasonable explanation for the delay in perfecting the appeal?

• Is there prejudice to the respondent in granting the extension?

• Is there […] so little merit in the proposed appeal that the court could reasonably deny the appellant this important right?

• Does the "justice of the case" require the granting of an extension?[^6]

[39] Accordingly, I consider each factor in turn.

Has the appellant maintained a firm intention to appeal within the relevant time period?

[40] The question is whether there is evidence that Mr. Hussain maintained a firm intention to appeal within the relevant time period, being the 20-day appeal period from January 15, 2020, to February 4, 2020.

[41] The appellants assert, at pp. 2-3 of their factum that, "[u]pon learning their legal rights, the applicant immediately filed an appeal to the property standards committee and then subsequently to the Superior Court of Justice." I note there is no evidentiary reference supporting that submission in the appellants' factum.

[42] As I understand it, the appellants' submission is intended to refer to the letter dated July 3, 2020, from counsel for the appellants to the secretariat of the property standards committee of the respondent municipality, which gave notice of the appeal and set out the grounds. That letter of appeal indicates that Mr. Hussain wished to appeal the orders in question, "as certain new information has just now come to light." The letter of appeal goes on to allege that Mr. Maxwell "has been trespassing into residential dwelling areas" and that the inspector's "entire work order [sic] is based upon his illegal entry."

[43] The letter of appeal of July 3, 2020, makes plain that the owner's intention to appeal arose out of the "certain new information has just now come to light." In other words, at best, the letter of July 3, 2020, if it were properly before the court, would provide evidence that the owner had a firm intention to appeal the order as of July 2020.[^7] But it does not provide any evidence whatsoever as to the intention of the appellant during the relevant time period, being the 20-day appeal period from January 15, 2020, to February 4, 2020.

[44] Indeed, there is simply no evidence before the court that establishes that the owner had any intention to appeal the orders during the relevant time period. As such, I find that the appellants have failed to satisfy the first branch of the test.

[45] Given the failure of the appellants to satisfy the first branch of the Mauldin test, on this basis alone, the request for granting a retroactive extension of the appeal period should fail and the appeal, thus made out of time, should also fail.

[46] That said, I go on to consider the other branches of the Mauldin test.

Has the appellant provided a reasonable explanation for the delay in perfecting the appeal?

[47] In my view, the appellants have provided no explanation whatsoever as to why Mr. Hussain could not have appealed the Property Standards Order and Unsafe Building Order within the relevant 20-day appeal period from January 15, 2020, to February 4, 2020.

[48] That said, as I understand the appellants' position, their entire appeal is premised on what they allege to be the "illegal entry" of the building inspector into the residential premises on the Property. As I have referenced, those concerns were highlighted in the letter of appeal dated July 3, 2020, from counsel for the appellants to the respondent municipality.

[49] As I understand it, the appellants' position is that they were not aware of any issues concerning the alleged "illegal entry" by the building inspector – and thus, in their view, the basis for their appeal – until the tenants of the building started to complain, which, it is said, did not occur until in or about June 2020.

[50] Counsel for the appellants submits that soon after the tenants' concerns came to the attention of the owner, Mr. Hussain took prompt steps to appeal the orders. Counsel submits that, at most, the owner was only a few weeks late.

[51] In my view, it is only if one accepts the appellants' position that the allegations of the inspector's "illegal entry" constitute meritorious grounds of appeal that one could also accept that the appellants have a reasonable explanation for the delay in appealing the two orders. Apart from the appellants' position on the alleged "illegal entry," there is no reasonable explanation that would account for the failure of the owner to appeal the Property Standards Order and Unsafe Building Order within the relevant time period.

[52] In other words, if there is no merit to the appellants' position that the alleged "illegal entry" of the building inspector into the residential premises constitutes a valid ground of appeal to set aside the orders in question, then the fact that Mr. Hussain did not learn of those concerns until in or about June 2020 would be irrelevant. In that event, he would have no reasonable explanation as to why he did not appeal the two orders within the relevant time period.

[53] Put differently, in the circumstances of the instant case, the question of whether the appellants have satisfied the second branch of the Mauldin test hinges upon whether they are successful in sustaining their position that the alleged "illegal entry" of the building inspector into the residential premises provides valid grounds to set aside the orders in question.

[54] For the reasons that follow, I conclude that the alleged "illegal entry" of the building inspector into the residential premises does not provide valid grounds to set aside the orders in question.

[55] It follows, then, that the appellants have failed to satisfy the second branch of the Mauldin test.

[56] Given the lack of merit in the appellants' position, and accordingly the lack of a reasonable explanation for the delay in appealing within the relevant time period, I would not exercise my discretion under s. 25(2) of the Act to grant the appellants a retroactive extension of the time for making the appeal.

Is there prejudice to the respondent in granting the extension?

[57] I am not satisfied that it has been demonstrated that the respondent municipality itself would suffer any prejudice by the granting of a retroactive extension of the time for the appellants to commence their appeal.

[58] In my view, whether it can be said that there are other interests – beyond the direct interests of the respondent municipality – that would be prejudiced by a retroactive extension of the appeal period is a consideration that is better assessed under the fifth branch of the Mauldin test, i.e., whether the "justice of the case" requires an extension.

Is there so little merit in the proposed appeal that the court could reasonably deny the appellant this important right?

[59] Generally speaking, for the purposes of considering whether this fourth branch of the Mauldin test is satisfied, the level of scrutiny of the merits of the proposed appeal should not be exacting. For example, an appellant should not be required to demonstrate that the merits of the appeal are so strong that the appellant must invariably succeed in order to satisfy the fourth branch of the Mauldin test and obtain an extension of the appeal period.

[60] That said, in the circumstances of the instant case, I am of the view, for the reasons that follow, that there is so little merit in the proposed appeal that it is reasonable for the court to decline to exercise its discretion under s. 25(2) of the Act to grant the appellants a retroactive extension of the time for commencing the appeal.

Does the "justice of the case" require the granting of an extension?

[61] In my view, the circumstances of the instant case indicate that the building inspector of the respondent municipality had reasonable concerns for the structural integrity of the building on the Property, and those concerns were validated by an independent structural engineer, who gave a professional opinion that "the building is unsafe in its current condition." Based on his concerns, the building inspector issued remedial orders under the Building Code Act.

[62] In such circumstances, the operative statutory scheme under the Building Code Act provides relatively tight time-frames for the owner of such a building to challenge such remedial orders. The legislation gives the owner 20 days to appeal the remedial orders. In my view, that relatively tight 20-day appeal period reflects a legislative recognition that there is an important public safety interest that may be jeopardized where the safety of a building that is used for residential purposes and which may be accessed by the general public is permitted to remain in question for a significant period of time. In short, where the safety of a residential building is at stake, it is incumbent on the parties to move with due dispatch to have that question determined as expeditiously as possible.

[63] Here, the owner demonstrated no intention to appeal the impugned orders within the relevant 20-day appeal period and provided no real explanation for his delay or why he was unable to appeal the impugned orders within the relevant time period.

[64] The existence of an unsafe building threatens the public interest. I note the definition of an "unsafe" building in s. 15.9(2) of the Act expressly includes a building whose condition "could be hazardous to the health or safety of … persons outside the building or persons whose access to the building has not been reasonably prevented."

[65] In my view, consideration of the "justice of the case" must assess the failure of the owner here to move expeditiously and within the required time-frame against that context of the jeopardy to the public interest caused by permitting a building that has been considered to be "unsafe" in the professional opinion of a structural engineer to continue to stand. The relief sought by the appellants would allow an unsafe building condition to continue, which is not in the interests of justice.

[66] In all of the circumstances of the instant case, the appellants have failed to persuade me that the "justice of the case" requires that the court exercise its discretion in favour of granting the appellants a retroactive extension of the time to commence an appeal.

Summary

[67] On balance, I conclude that the appellants have failed to satisfy the five-prong Maudlin test and have failed to demonstrate that the court should exercise its discretion under s. 25(2) of the Act to grant a retroactive extension of the time for commencing an appeal.

[68] As a result, I find that the preliminary objections of the respondent municipality to the timeliness of the appellants' appeal of the Property Standards Order and the Unsafe Building Order are valid and, therefore, that the appeal of the Property Standards Order and the Unsafe Building Order are out of time and not properly before this court.

Have the appellants followed the proper appeal route in respect of the Property Standards Order?

[69] I agree with the submissions of the respondent municipality as set out in paras. 16-21 of its factum that, given the statutory scheme under the Building Code Act, any appeal of the Property Standards Order was required to be made to the property standards committee of the respondent municipality.

[70] The ability of the appellants to appeal to this court is, in effect, conditional upon a decision having been made by the property standards committee upon appeal to that committee. Subsection 15.3(4) of the Building Code Act is clear that a right to appeal to the Superior Court of Justice is available only in respect of a decision made under s. 15.3(3.1) by the property standards committee. If there was no appeal to the property standards committee, then there is no decision of that committee that may be appealed to this court.

[71] Having said that, in the circumstances of the instant case, this second objection adds little to the analysis. That is, the letter of appeal of July 3, 2020, from appellants' counsel, which purported to appeal all three orders, including the Property Standards Order, was directed to the secretary of the property standards committee, as required by s. 15.3(1) of the Act.

[72] I agree with counsel for the respondent municipality that, as set out in para. 21 of its factum, in the instant case, there was no appeal to the property standards committee "within the statutory time frames." I have held above that a retroactive extension of the time to commence the appeal ought not to be granted. That ends the appeal insofar as the Property Standards Order and Unsafe Building Order are concerned. However, if I am incorrect in my decision on the timeliness of the appeal, and a retroactive extension of time is warranted, then by their letter of appeal of July 3, 2020, the appellants would have appealed the Property Standards Order to the correct body.

Is the appeal in respect of the Occupancy Order moot?

[73] As I have said, it is common ground that the appeal in respect of the Occupancy Order, made July 7, 2020, was made in a timely fashion. The appellants' letter of appeal was received by the respondent municipality on July 9, 2020.

[74] However, given that the appeal in respect of both the Property Standards Order and the Unsafe Building Order was not made in a timely manner, and given further that, as I have concluded above, those two orders are now final and binding, the appeal in respect of the Occupancy Order is moot.

[75] First, the Occupancy Order required, inter alia, that all occupants of the building vacate the Property. They have done so. Thus, I agree with the observation of George J. in his endorsement on the stay application of August 12, 2020, that, "the Occupancy Order has been rendered somewhat moot, as all of the tenants have been evicted and the building now sits vacant."

[76] Second, the combined effect of the Property Standards Order and the Unsafe Building Order and the statutory scheme under the Building Code Act provides the respondent municipality with the lawful authority to demolish the building on the Property. As I have said, the Unsafe Building Order was issued pursuant to s. 15.9(4) of the legislation. Subsection 15.9(6) provides that:

If an order of an inspector under subsection (4) is not complied with within the time specified in it, or where no time is specified, within a reasonable time, the chief building official,

(a) may by order prohibit the use or occupancy of the building; and

(b) may cause the building to be renovated, repaired or demolished to remove the unsafe condition or take such other action as he or she considers necessary for the protection of the public.

[77] I agree with the submissions of Mr. Taylor for the respondent municipality that, as reflected in para. 23 of its factum, as a practical matter, the Occupancy Order is necessary where work must be taken to address the Unsafe Building Order. The successful appeal of the Occupancy Order would result in an illogical situation in which the building is subject to demolition under the existing final and binding orders, and yet occupants would not be legally required to vacate the building. The Occupancy Order is necessary simply to facilitate the remedial steps required to address the unsafe condition of the building.

[78] But with the Property Standards Order and Unsafe Building Order being deemed final and binding, the appeal in respect of the Occupancy Order is moot.

Should portions of the appellants' material be struck?

[79] The respondent municipality submits that the appellants have included numerous factual allegations in their material that are entirely unsupported by the evidence filed.

[80] Given my conclusions on the other issues, it is not necessary to rule on the respondent municipality's objection to the appellants' material.

[81] That said, I again agree with the observation of George J. in his endorsement on the stay application, that the respondent's objection raises "a fair point, as there appear to be several factual assertions that are not grounded in the evidence, not to mention the fact [the appellant] seeks relief that this court will be unable to grant (i.e. damages, financial compensation)."

[82] To be clear, even considering the material to which the respondent municipality takes objection, I would still not grant the relief sought by the appellants.

If the preliminary objections of the respondent municipality do not dispose of the appeal, should the appeal succeed on its merits?

[83] Although I have concluded that the preliminary objections of the respondent municipality are fatal to and dispositive of the instant appeal, for the sake of completeness, I would also address the appeal on its merits.

[84] As I understand it, the central ground upon which the appellants challenge the three orders is perhaps best captured in the first paragraph of the letter of appeal dated July 3, 2020, in which counsel for the appellants states that, "Mr. Maxwell has been trespassing into residential dwelling areas for his unannounced warrantless inspection. His entire work order is based upon his illegal entry into the apartments and should be nullified."

[85] In my view, the appeal cannot be sustained on this basis.

[86] First, as a matter of law, while appellants' counsel complains of the inspector's "unannounced warrantless inspection" of the Property, I note the provisions of s. 15.2(1) of the Act, which state:

Inspection of property without warrant

15.2 (1) Where a by-law under section 15.1 is in effect, an officer may, upon producing proper identification, enter upon any property at any reasonable time without a warrant for the purpose of inspecting the property to determine,

(a) whether the property conforms with the standards prescribed in the by-law; or

(b) whether an order made under subsection (2) has been complied with. [Emphasis added.]

[87] Subsections 15.9(1) and (7) provide similar powers to an inspector. Subsection 15.8(1) sets out the relatively broad inspection powers of such officials.

[88] The powers of entry afforded to an inspector are limited by the provisions of s. 16 of the Building Code Act, which place limitations on an inspector's authority to enter a room or place actually used as a dwelling. Subsection 16(1)(a) provides an exception where the consent of the occupier is obtained. The provision states that entry into a dwelling is not permitted unless "the consent of the occupier is obtained, the occupier first having been informed that the right of entry may be refused and entry made only under the authority of a warrant issued under this Act."

[89] Second, as a matter of fact, I am not satisfied that the appellants have established that Mr. Maxwell trespassed into the residential units on the Property.

[90] The evidence of Mr. Maxwell is that he requested consent for entry into any occupied dwelling unit of the subject building, using the following standard wording used by Building Inspectors/Bylaw Enforcement Officers for the Municipality:

Caution: I have to caution you. I am requesting permission to gain access for the purpose of a property standards inspection. You have the right to refuse me entry, at which point I can only gain entry with a warrant. You have the right to end this inspection at any time, at which point I can only gain entry with a warrant. Do I have permission to enter?

[91] The direct evidence of Mr. Maxwell is that he "did not ever enter an occupied dwelling unit unless I had explicit consent from the occupier to do so."

[92] Mr. Maxwell took notes of each dwelling unit on the Property that he attempted to enter, and his evidence is that he obtained a signature from each unit that consented to entry. Mr. Maxwell also made notes in his "Code Enforcement Case Diary" regarding those units where the occupier consented to his entry and those which did not. As I have said, Mr. Maxwell's notes were made contemporaneously with the events in question. His evidence is, consistent with his contemporaneous notes, that did not enter any units without consent.

[93] The appellants have not offered evidence from all of the tenants. Indeed, there is only one sworn affidavit from one of the former tenants (Jed Anger) that is properly before the court, who maintains that an (unnamed) man "from the city" entered his apartment (unit no. 5) without his permission. The inspector's notes for unit no. 5 are somewhat ambiguous. The words "no consent" are visible in the notes for unit no. 5, which is consistent with the affidavit of the former tenant. But those words "no consent" have a line drawn through them, and beside them appear the words "vacant – Tom – assisting super (John) let us in" – giving rise to the question of whether the apparent entry took place after the tenant vacated the unit. I note that the first sentence of the former tenant's statement indicates that he vacated the unit. The typewritten notes contained in Mr. Maxwell's case diary indicate that Mr. Maxwell returned to the building on July 21, 2020, and "spoke to a male in unit 1, not the tenant," who advised that the tenants were then residing in a trailer at a park.

[94] There is no affidavit from any other resident of the building before the court. There is an unsworn statement appended to the appellant's material from John Holland, who describes himself as the "caretaker" of the building. In Mr. Maxwell's handwritten notes, there appears the notation "unit 1 – John Holland (super) no consent." In his typewritten notes in his case diary, he recorded: "Unit 1: Entry denied by tenant, the building superintendent John Holland …" Interestingly, there is no statement in Mr. Holland's unsworn statement about whether Mr. Maxwell or any city official asked him for permission to enter his dwelling unit and whether he denied consent. Indeed, the subject is not raised in Mr. Holland's statement at all. Rather, Mr. Holland's statement provides an unsworn hearsay account of what he believes he observed in respect of two other units. I attach no weight to the unsworn hearsay statement.

[95] Finally, there is another unsworn statement appended to the appellants' materials, apparently from a "Glen" who is said to have occupied unit no. 4 on the Property. In Mr. Maxwell's notes, there appears, inter alia, the notation "unit 4 – Glen Quick" and the word "consent" beside which is a signature and phone number. In his typewritten notes in his case diary, Mr. Maxwell recorded: "Unit 4: Entry granted by tenant Glen Quick." I find that the tenant provided his consent for Mr. Maxwell to enter his unit. That said, I find it interesting that the unsworn statement of this former tenant does not say anything at all about whether he did or did not have any direct contact with Mr. Maxwell or whether he did or did not provide consent to Mr. Maxwell to enter his premises, as clearly indicated in the inspector's notes (which also record a number of deficiencies in the apartment). Again, the unsworn statement contains apparently hearsay information, the source of which is not indicated at all, which baldly asserts, "the city inspector entered into the apartments when he had no consent" without any particulars provided. The failure of the tenant's statement to indicate that the tenant himself provided consent to Mr. Maxwell to enter his own unit – or to even address the encounter at all – while attempting to leave this court with a very different perception of the conduct of the city inspector causes me great concerns for the objectivity of the statement. I attach no weight to this unsworn, misleading, hearsay statement.

[96] The onus is on the appellants to prove that the building inspector engaged in a pattern of trespass and "illegal entry." In my view, for the reasons above, the "evidence" presented by the appellants falls far short of the mark. In the circumstances, I prefer the evidence of Mr. Maxwell, supported by his contemporaneous notes and other documentation.

[97] In any event, I disagree with the apparent assumptions underlying the appellants' theory of the appeal. Indeed, I regard those assumptions as fundamentally flawed.

[98] I agree with Mr. Taylor's characterization of the argument presented on behalf of the appellants; they appear to assert a theory akin to the "fruits of the poison tree" – a notion more commonly encountered in the criminal context, where, for example, an accused asks for the exclusion of evidence obtained by police misconduct.

[99] I do not view this appeal as a vehicle to review and discipline the alleged misconduct of the building inspector. Such a focus completely ignores the objectives of the legislative scheme under the Building Code Act, which is concerned with, inter alia, safety issues and the public interest.

[100] One cannot ignore the fact that the unchallenged evidence before the court, confirmed by a structural engineer, is that "the building is unsafe in its current condition." That is the core concern for present purposes. Whether the building inspector entered a dwelling unit without consent from an occupier – and I underscore that I am not satisfied that such conduct in fact occurred here – does not alter that core concern. It does not repair the "deteriorating and crumbling" condition of the foundation and piers, and it does not render the building safe and appropriate for human occupancy. The appellants' argument appears to assume that if there is unauthorized entry, then there is no unsafe building. Again, that assumption is fundamentally flawed.

[101] Moreover, if the building inspector engaged in wrongful conduct that amounts to actionable trespass, then the persons aggrieved have their remedy at law, and they are, of course, at liberty to pursue that remedy by commencing the appropriate proceeding.

[102] However, on this appeal, at the end of the day, we are left with an Unsafe Building Order and a Property Standards Order. Both of those orders addressed the serious concerns regarding the structural integrity of the building. Both of those orders required the owner to retain an engineer to review the concerns and provide a plan to remedy the concerns. That was to be done within a month. But even several months later – indeed, the better part of a year later – the appellants have done nothing to address the structural integrity issue.

[103] Bottom line, there is no evidence before the court – expert or otherwise – tendered by the appellants to indicate that the building on the Property is structurally safe. On the contrary, as I have said, the unchallenged evidence before the court on this appeal is that the building is not structurally safe.

[104] I would dismiss the appeal on its merits.

Costs

[105] The respondent municipality was successful on the appeal and is entitled to its costs.

[106] Costs of the attendance before George J. on August 11, 2020, on the application for the stay pending appeal and of the attendance before me on September 29, 2020, on the appellants' request for an adjournment were both reserved to the judge hearing the appeal.

[107] On behalf of the respondent, Mr. Taylor presented a costs outline, which seeks costs on a partial indemnity scale of $7,131.62, comprised of $7,052 in fees and $79.62 for disbursements.

[108] That said, at the conclusion of the hearing of the appeal, Mr. Taylor submitted that the respondent's costs should be allowed on an elevated scale because of the conduct of the appellants and, in particular, the transfer of the property just days before the September 29th hearing date, which necessitated an adjournment of the special appointment hearing and resulted in significant costs thrown away. Mr. Taylor submitted that the appellants' conduct warrants an award on a full indemnity basis. His costs outline indicates that costs on a full indemnity basis would amount to $9,237.62 ($9,158 in fees and $79.62 in disbursements).

[109] There is no doubt that the adjournment request on September 29th resulted in costs thrown away, for which the respondent municipality should be indemnified.

[110] However, notwithstanding the concerns I have for some aspects of the conduct of the appellants, I am not persuaded that an award of costs on a full indemnity basis or any other elevated scale is appropriate here.

[111] As Leach J. explained in the recent decision of the Divisional Court in Snowden v. The Corporation of the Township of Ashfield-Colborne-Wawanosh, although the court has a broad discretion in relation to costs, our appellate courts have repeatedly emphasized that an award of costs on a partial indemnity basis generally strikes the proper balance between the cost benefits to be enjoyed by the successful litigant and the cost burdens to be borne by the unsuccessful party, and that elevated cost awards should be reserved for "rare and most exceptional" cases where the conduct of a litigant warrants condemnation by the courts.[^8]

[112] In its 2018 decision in Mars Canada Inc. v. Bemco Cash & Carry Inc., our Court of Appeal again affirmed that "costs on a substantial indemnity basis should only be awarded 'where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties'."[^9]

[113] At my direction at the hearing on September 29th, the appellants filed an affidavit to explain the circumstances surrounding the last-minute transfer of the Property to 503. I have reviewed the evidence set out in the affidavit sworn by Mr. Hussain on September 30, 2020. That evidence speaks to the stress that Mr. Hussain says he experienced in dealing with the Property and this litigation, which adversely affected his health. The affidavit also describes Mr. Hussain's efforts to sell the Property.

[114] While I remain somewhat skeptical of certain circumstances surrounding the sale transaction, including its timing, the lack of consideration, and the relationship between the principals involved, I am not satisfied, considering the totality of the material before me, that this is one of those "rare and exceptional" cases where one may conclude that there has been reprehensible, scandalous, or outrageous conduct sufficient to ground an award of substantial indemnity or full indemnity costs.

[115] On balance, I conclude that the costs of the respondent municipality should be fixed on the partial indemnity scale.

[116] In Ontario, cost awards in civil law matters are governed by section 131 of the Courts of Justice Act[^10] and, in most cases, rule 57.01 of the Rules of Civil Procedure.[^11]

[117] In fixing the amount of costs to be awarded, the court's objective is not to reimburse a litigant for every dollar spent on legal fees. Rather, in exercising its discretion, a court must produce a result that is fair and reasonable in all the circumstances.[^12] The "overriding principle is reasonableness."[^13]

[118] As the Ontario Court of Appeal observed in its leading decision in Boucher v. Public Accountants Council (Ontario): "[o]verall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant."[^14]

[119] I have considered all of the factors enumerated in subrule 57.01(1) of the Rules of Civil Procedure, not all of which are equally relevant in the instant circumstances (or at all). As such, I do not propose to specifically address each of the factors below. I would indicate that I tend to agree with the positions adopted by the respondent in respect of the relevant factors as summarized in its cost outline.

[120] Having reviewed the time spent on the matter, I find the hours incurred are appropriate for an appeal. Further, the partial indemnity rate of $205 per hour for a lawyer called in 2010 is, in my view, fair and reasonable. The matter was of only moderate complexity, but that was exacerbated by the conduct of the appellants and the sale of the Property on the eve of September 29th hearing. There is no doubt that the issues were extremely important to both the appellants and the respondent municipality.

[121] Further, in considering the factor enumerated in clause 57.01(1)(0.b), being the amount of costs that an unsuccessful party could reasonably expect to pay, the $7,131.62 amount sought by the respondent is in line with the $6,586 amount that counsel for the appellants advised she would seek on behalf of the appellants if they were successful. In this regard, I note that counsel for the respondent municipality spent considerably fewer hours than the 52 hours that counsel for the appellants advised were incurred on behalf of her clients. Moreover, one must allow for what I would expect to be a significant difference in hourly rates, given that Mr. Taylor is a ten-year call and Ms. Haider is a first-year call.

[122] For all of these reasons, and having considered, inter alia, the submissions of the parties and the costs outline of the respondent, the relevant factors enumerated in subrule 57.01(1) of the Rules of Civil Procedure, and the principles that should guide the court's exercise of its discretion under s. 131 of the Courts of Justice Act to award costs, I find that the respondent's claim for $7,052 in fees, together with disbursements of $79.62, for a total amount of $7,131.62, represents a fair, reasonable, and proportionate costs award in the circumstances of the instant case.

[123] Accordingly, I fix the respondent's costs of the motion, on a partial indemnity basis, in the amount of $7,131.62, all inclusive. In my view, liability for payment of the costs award should be joint and several as against both appellants given that they were both involved in the steps taken in this case, including the events that resulted in costs thrown away.

Conclusion

[124] In the result, the appeal of the appellants is dismissed, and, pursuant to s. 25(4) of the Building Code Act, the Unsafe Building Order, Property Standards Order, and the Occupancy Order are affirmed.

[125] An order shall go for the payment by the appellants to the respondent of its costs of this matter, on a partial indemnity basis, fixed in the total amount of $7,131.62 (inclusive of fees, disbursements, and HST), payable within 30 days, on a joint and several basis.

J. Paul R. Howard

Released: December 2, 2020 Justice

[^1]: Building Code Act, 1992, S.O. 1992, c. 23 (the "Building Code Act" or the "Act"). [^2]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [^3]: I note that Mr. Maxwell's affidavit states that the inspection was conducted "on or about January 14, 2020." As well, his handwritten notes bear the date of January 14, 2020. However, the typewritten notes in his diary appear to indicate that the inspection occurred on January 15, 2020, and the Unsafe Building Order itself refers to the inspection having been conducted on January 15, 2020. That said, in my view, nothing turns on whether the inspection was conducted on the 14th or the 15th. [^4]: See O. Reg. 73/20. [^5]: Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9. [^6]: Mauldin v. Cassels Brock & Blackwell LLP, 2011 ONCA 67, [2011] O.J. No. 263, 274 O.A.C. 353, at para. 5. [^7]: In saying that, it must also be noted that the letter of July 3, 2020, is not, strictly speaking, in evidence before the court. The letter of appeal is not attached as an exhibit to or referenced in any affidavit before the court. The letter is simply included in the electronic brief of documents, including the appellants' factum, that was filed with the court. [^8]: Snowden v. The Corporation of the Township of Ashfield-Colborne-Wawanosh, 2018 ONSC 10 (Div. Ct.), at para. 30, citing Foulis v. Robinson (1978), 1978 1307 (ON CA), 21 O.R. (2d) 769 (C.A.), and Isaacs v. MHG International Ltd. (1984), 1984 1862 (ON CA), 45 O.R. (2d) 693 (C.A.). See also Laczko v. Alexander, 2012 ONCA 872, at para. 2 per Weiler J.A., in chambers. [^9]: Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, 140 O.R. (3d) 81, at para. 43, citing Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p. 134. [^10]: Courts of Justice Act, R.S.O. 1990, c. C.43. [^11]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [^12]: DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601 (S.C.J.), at para. 7. See also Kuzev v. Roha Sheet Metal Ltd., 2007 25656 (ON SCDC), 2007 CarswellOnt 4338, 227 O.A.C. 3 (Div. Ct.), at para. 6, citing Murano v. Bank of Montreal (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222, 163 D.L.R. (4th) 21, 22 C.P.C. (4th) 235 (C.A.) [cited to O.R.], at p. 247 per Morden A.C.J.O., and Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495, 21 C.C.E.L. (3d) 161 (C.A.), at para. 4, and quoting Moon v. Sher, 2004 39005 (ON CA), [2004] O.J. No. 4651, 246 D.L.R. (4th) 440 (C.A.), at para. 30 per Borins J.A. [^13]: Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, 312 D.L.R. (4th), at para. 52. [^14]: Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.), at para. 26.