Court File and Parties

COURT FILE NO.: CV-19-00627606 DATE: 20210823

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Ivan Rudyk and Shelley Young, Applicants AND: Halton Region Conservation Authority, Respondent

BEFORE: Justice Mohan D. Sharma

COUNSEL: Arkadi Bouchelev, for the Applicants Kenneth E. Jull and Tim Duncan, for the Respondent

HEARD: August 23, 2021

ENDORSEMENT

[1] The applicants seek various declaratory orders as a result of the respondent cancelling a permit it issued in relation to a home construction project. The respondent brings a motion arguing this application is premature, or that it be heard by the Divisional Court as a judicial review.

[2] For the reasons that follow, I find that this application, at its core and in every respect, challenges the exercise of a statutory authority or decision-making power conferred on the respondent, Halton Region Conservation Authority, under the Conservation Authorities Act, R.S.O. 1990, c. C.27 (the “Act”), and O. Reg 162/06. As such, it is properly the subject of a judicial review application before the Divisional Court pursuant to s. 6(1) of the Judicial Review Procedure Act, R.S.O., 1990, c. J.1 (“JRPA”). I am not satisfied that I should grant leave to hear this matter as a judge of the Superior Court of Justice under s. 6(2) of the JRPA.

[3] Accordingly, I order that this matter be transferred to the Divisional Court under s. 6(3) of the JRPA.

Factual Background

[4] In 2018, the applicants, Mr. Rudyk and Ms. Young, were in the process of renovating their home which backs on to a ravine in Burlington. They state that the renovations were undertaken to make the home more physically accessible, and to remedy mould discovered in the home. They obtained all the necessary permits from the City of Burlington and from the respondent, Halton Region Conservation Authority (“Conservation Halton”). The planned renovation would have retained the south and east walls of the house, but those walls partially collapsed during the renovation in January of 2019. It was necessary to demolish and rebuild them.

[5] The applicants state that in March of 2019, the City of Burlington issued a stop work order after receiving a complaint from Conservation Halton alleging the applicants were in breach of the terms of its building permit.

[6] Also in March of 2019, Conservation Halton wrote to the applicants to advise that they were in breach of section 2 of Ontario Regulation 162/06 under the Act, which among other things prohibits “development” in certain areas within the jurisdiction of Conservation Halton, which includes areas that are “river or stream valleys that have depressional features associated with a river or stream,” or “other areas where development could interfere with the hydrologic function of a wetland” (see s. 2(b) and 2(e) of O. Reg. 162/06). There is, however, authority in s. 3 of O. Reg. 162/06 for a person to seek permission to develop where it would otherwise be prohibited.

[7] It was the view of Conservation Halton that the applicants were now demolishing their home and constructing a new structure in its place. They took the position that the applicants now needed to obtain permission for this development. Conservation Halton also argues that when the initial permit application was presented, the applicants or their builders misrepresented the scope of work that was to be undertaken.

[8] The applicants’ view is that, contrary to Conservation Halton’s assertion, the applicants were not intentionally demolishing their home and building a new structure in its place. The south and east walls collapsed on their own accord and was due to prior faulty construction. The new framing of the entire home was constructed on an existing foundation and cannot be considered a new building. They further argue that the new walls are functionally identical to the old south and east walls that they replaced.

[9] Efforts to resolve this issue with the City of Burlington were successful. The City rescinded the stop work order after finding that the partially collapsed south and east walls were unsafe and had to be replaced.

[10] Conservation Halton, however, did not change its position. On August 22, 2019, it issued a letter advising the applicants that its previously issued permit was void effective immediately.

[11] The applicants state that Conservation Halton, in order to cancel a previously issued permit, is required to follow a process in s. 8 of O. Reg. 162/06, which includes giving notice of its intent to cancel a permit, conduct a hearing, and allow the applicants to show cause why the permit should not be cancelled. This was not done.

[12] Conservation Halton states that the prior renovation project for which the permit was granted did not contemplate demolition of an existing building and construction of a “new dwelling”. If an existing building is being demolished, Conservation Halton would have required that a geotechnical assessment be completed. When houses are adjacent to steep slopes, as in this case, Conservation Halton states stability issues must be addressed as part of construction. It takes the position that the prior permit was issued for an addition or renovation to a dwelling, and that the applicants did not have a permit for the development being undertaken, being the construction of a new dwelling in place of the existing building. For this reason, it states the applicants must restart the permit application process.

[13] The applicants’ position is that seeking a new permit would: (a) greatly delay the project’s completion, increase construction costs and leave the current partially-constructed structure exposed to the elements during the new application process; (b) require the applicants to pay tens of thousands in additional permit fees and engineering costs; and (c) be a waste of time because the permit would never be approved based on the current ‘hazard lands’ guidelines used by Conservation Halton.

[14] As a result, the applicants seek the following relief in this application:

a. A declaration that construction or reconstruction of a building on an existing foundation and/or within an existing footprint/building envelope does not constitute “development” within the meaning of s. 28 of the Act and s. 2, 3 and 4 of O. Reg. 162/06;

b. A declaration that construction or additions to an existing building, including second storey additions, balconies, front porches and patios does not constitute “development” within the meaning of s. 28 of the Act and s. 2, 3 and 4 of O. Reg. 162/06;

c. A declaration that the construction work that has been carried out at the house does not constitute “development” within the meaning of s. 28 of the Act and s. 2, 3 and 4 of O. Reg. 162/06;

d. A declaration that Conservation Halton has no jurisdiction to regulate or restrict the type of construction described in paras (a) through (c) above;

e. In the alternative to (a) to (d) above, a declaration that the revocation of Conservation Halton’s permit is ultra vires, and null and void for failure to comply with the process in s. 8 of O. Reg. 162/06, and therefore, the prior permit remains in effect;

f. In the alternative to (a) to (e) above, a judicial review of Conservation Halton’s decision to remove the permit and leave to have an application for judicial review heard by the Superior Court of Justice on an urgent basis; and

g. A declaration that the construction work that has been carried out by the applicants amounts to an alteration of, and an addition to, an existing structure rather than construction of a new structure.

[15] The respondent brings its own motion. It argues:

a. That the disposition of the application is premature and should be adjourned until after the applicants first seek a new permit from Conservation Halton for the new construction.

b. In the alternative, the declaratory relief (i.e., that the construction or reconstruction of the house on an existing foundation does not constitute “development”) be struck out as an error of law since the term “development” is defined in s. 28(25) of the Act.

c. In the further alternative, it argues this matter should be transferred to the Divisional Court pursuant to s. 6(2) and 6(3) of the Judicial Review Procedure Act, R.S.O. 1990, c J.1 (“JRPA”).

Discussion

[16] The applicants’ evidence, on which I make no findings, suggests that the respondent failed to properly exercise its authority or exercised authority without jurisdiction. For example, they allege the respondent:

a. Failed or improperly reviewed the initial Design Drawings that led to the permit being issued in the first place, and are only later complaining after the fact that a geotechnical assessment is required for the permit to be properly issued;

b. Failed to follow the prescribed process for the revocation of the permit, as set out in s. 8 of O. Reg. 162/06;

c. Improperly demanded the applicants sign a “compliance agreement” to evidence the applicants violated the terms of the Act and O. Reg, 162/06, for which the applicants say the respondent had no authority;

[17] The issues on which the applicants seek this court’s determination are:

a. Whether Conservation Halton has jurisdiction over the renovation of a home on an existing foundation?

b. Whether the previously issued permit by the respondent has full force and effect?

c. Whether the declaratory relief sought should be granted.

[18] These factual allegations, as well as the legal issues on which the applicants seek orders, challenge the exercise of statutory power and decision-making by the respondent conferred upon it under the Act and O. Reg. 162/06. The declarations sought by the applicants call into question the authority of the respondent to regulate matters which the applicants say is not “development”, as well as the exercise of the respondent’s authority to cancel or void a permit previously issued. Whether that authority exists and whether it was exercised properly is what this entire application is about.

[19] It is therefore a judicial review application challenging a statutory power or statutory power of decision. Section 2(1)2 of the JRPA, states that the court may, on an application for judicial review, grant relief by way of a declaration “in relation to the exercise, refusal to exercise or proposed or purposed exercise of a statutory power.” The court may also set aside a decision for error of law (s. 2(2)), or where a decision is unauthorized or invalid (s. 2(4)). These are the types of remedies the applicants seek. Section 6(1) of the JRPA, however, states that judicial review applications are to be made to the Divisional Court.

[20] The applicants have cited recent Supreme Court of Canada authority for when a Court may grant declaratory relief: see S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4. This case arose in British Columbia and involved an applicant seeking a determination from the Court as to whether the applicant’s interest in a trust constitutes an “asset” for the purpose of assessing a rental assistance application. I agree that this case sets out the test for when a court may grant declaratory relief. However, this case arose from British Columbia, which unlike Ontario, does not have a Divisional Court with express statutory authority to hear and determine judicial review applications.

[21] Bringing this application to the correct court is important. It affects appeal routes and would create new grounds of appeal if the Superior Court of Justice were to decide it without acknowledging the jurisdiction of the Divisional Court over judicial review applications.

[22] Under s. 6(2) of the JRPA, a judicial review application may be made to the Superior Court of Justice, as opposed to the Divisional Court, with leave where it appears “the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.”

[23] If a judicial review application is urgent, the Consolidated Divisional Court Practice Direction requires that in Toronto, an urgent motion be made to a single judge of the Divisional Court, rather than to this court: see Ontario Secondary School Teachers’ Federation v. York Region Medical Officer of Health, 2021 ONSC 2807 at para. 10, and Consolidated Practice Direction for the Divisional Court, effective July 1, 2019 as amended to May 17, 2019 at para 4.

[24] I have consulted with the team lead of the Divisional Court, Justice David Corbett, who has advised that this matter may be scheduled for an initial case conference this week. If the Divisional Court administrative judge determines the matter is urgent, a hearing on the merits can likely be scheduled within a few weeks. Counsel for the respondent has indicated he would make himself available for a case conference this week.

[25] Even if I were to ignore the Consolidated Practice Direction for the Divisional Court, I am not satisfied that the delay in hearing the matter by the Divisional Court will result in a failure of justice, given that a hearing before the Divisional Court may well be accommodated in a matter of weeks.

[26] Therefore, I order that this application in its entirety, along with the respondent’s related motion be transferred to the Divisional Court as a judicial review application.

[27] Counsel were reminded of the need to serve the Attorney General of this judicial review application, pursuant to s. 9(4) of the JRPA. The application materials are comprehensive. Parties will also likely need to amend their factums and update their books of authority to address such matters as the standard of review. This should be discussed with the Divisional Court administrative judge at the case conference.

[28] I am very mindful and sympathetic to the apparent plight of the applicants in this case. I note that these renovations were required, at least in part, to make the applicants’ home more physically accessible to accommodate Ms. Young’s health issues following a car accident. I am also mindful of applicants’ evidence that the south and east walls may have collapsed due to faulty construction of these walls during a renovation of the home in the 1980s and prior to the applicants purchasing it. Finally, I can only assume there are mounting costs associated with this on-going dispute, and that with further delay, the partially constructed home may well be further exposed to the elements with resulting damage. These are matters that can be raised with the Divisional Court administrative judge in seeking to secure an urgent hearing date.

Costs

[29] Today’s hearing was under one hour. I invited counsel last Friday to be prepared to argue today the threshold issue of whether this case should be transferred to the Divisional Court, which was the exclusive focus of today’s argument. Costs of today’s appearance are reserved to the Divisional Court panel who will hear this judicial review application, as well as the costs thrown away from the aborted April 7, 2021 hearing of the Respondent’s prematurity motion.

Justice Mohan Sharma Date: August 23, 2021