COURT FILE NO.: CV-21-00004191-0000
DATE: 2022 11 01
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
1672736 Ontario Inc.
Applicant
– and –
Ezio Savini in His Capacity as Chief Building Official of the Corporation of the City of Mississauga and The Corporation of the City if Mississauga
Respondent
Luke Johnston and Michael Nemanic, Lawyers for the Applicant
Daron Earthy, Lawyer for the Respondents
HEARD: August 24, 2022; Additional Submissions in writing September 23, 2022
The Honourable Justice Ranjan K. Agarwal
REASONS FOR JUDGMENT
I. INTRODUCTION
[1] The applicant 1672736 Ontario Inc. (Dunpar Homes) is building Streetsville Centre, a new housing community in Mississauga. For several of the blocks in this development, Dunpar Homes didn’t have a building permit before construction in breach of the Building Code Act, 1992, SO 1992, c 23, s 8(1). In October 2021, the respondent Ezio Savini, the Chief Building Official for the respondent The Corporation of the City of Mississauga, made several orders under the Act requiring Dunpar Homes to stop work until it got building permits.
[2] This application is a statutory appeal under section 25 of the Act. Dunpar Homes asks this court to rescind the orders on the grounds that they were incorrectly made or are unreasonable. Dunpar Homes makes several arguments, but its main contention is that the orders required compliance in a time period that was impossible to meet.
[3] This appeal is now moot. The orders have been “cleared”. I nonetheless exercise my discretion to hear this appeal—I believe this is an exceptional case that justifies departing from the general rule against hearing moot appeals.
[4] Dunpar Homes’s main complaint is that the City is not approving building permit applications promptly (there is no dispute that the City’s approval process takes more than the time periods prescribed under the Building Code, O Reg 332/13). In response, Dunpar Homes helped itself—rather than wait for the permit approvals, it began construction on the unapproved blocks. In this appeal, it argues that Savini and the City (together, Mississauga) should have considered that delay when making the orders.
[5] For the reasons discussed below, I order that the Orders to Comply are affirmed. I don’t believe Mississauga made a palpable and overriding error and the CBO didn’t fetter his discretion when Mississauga made the orders. I order that the Stop Work Orders are rescinded—Mississauga admits that it didn’t comply with the Act when it made the Stop Work Orders.
[6] Dunpar Homes may have a valid complaint about delays in the permit application process. But that does not entitle it to illegally construct buildings without a permit. Mississauga’s Orders to Comply were necessary in the circumstances.
II. PRELIMINARY ISSUE: IS THE APPEAL MOOT? SHOULD IT NONETHELESS BE DECIDED?
[7] At the hearing of this application, Mississauga said this appeal was moot. Even so, it and Dunpar Homes both asked the court to hear the merits of the appeal. Following the hearing, I asked the parties for further submissions on whether the appeal is moot and, if so, whether the court should exercise its discretion to hear a moot appeal. I have considered the parties’ joint submissions. This appeal is moot. That said, I exercise my discretion to hear the appeal.
[8] Courts resolve real disputes between parties. They usually don’t provide opinions in response to hypothetical or academic problems. Courts will, however, sometimes address the merits of an appeal even where the dispute giving rise to the appeal has dissolved. When a question of mootness is raised, the court must first decide whether the appeal is moot. If the appeal is moot, the court must then decide whether it should nonetheless hear the merits of the appeal. The discretion to hear a moot appeal is intended to address those exceptional cases in which the circumstances are such that the general rule against hearing appeals where there is no live controversy between the parties should not be followed. See Borowski v Canada (AG), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 at 353; Tamil Co-operative Homes Inc. v Arulappah, 2000 CanLII 5726 (Ont CA) at para 13.
[9] The appeal is moot. The orders at issue have been “cleared”. Dunpar Homes argues that even though the orders have been cleared, Mississauga maintains the orders were properly issued and, on this appeal, asks that the orders be affirmed. Neither party explained what they mean by “cleared”. I understand them to mean that the inspector has indicated that the requirements of the order have been satisfied (see Building Code Act, ss 12(8), 14(3.4)). As Dunpar Homes is not being asked to comply or stop work, there is no “real dispute” between the parties. Dunpar Homes disagrees that the orders should ever have been issued, but that does not change the fact that the issue in dispute is dissolved.
[10] The onus is on the parties to show why the court should depart from its usual practice of refusing to hear moot appeals. In exercising its discretion in an appeal which is moot, the court should consider the extent to which each of the three basic rationale for enforcing the mootness doctrine is present (adversarial relationship, judicial economy, and the court’s proper law-making function). That said, the court's exercise of its discretion to hear moot appeals should not be fettered by the rigid application of pre-established criteria (Tamil Co-operative Homes, para 17).
[11] I have little or no concern about the absence of an adversarial relationship. As in Borowski, this appeal was “fully argued with as much zeal and dedication on both sides as if the matter were not moot.” Dunpar Homes relied on two affidavits: the affidavit of John Zanini, sworn November 22, 2021, and the affidavit of Roberto Lopez, sworn November 19, 2021. It also examined George Carlson, John Giguere, and Ryan Russell as witnesses before the hearing of this application. Mississauga relied on Savini’s affidavit, sworn June 7, 2022. Dunpar Homes cross-examined Savini. Mississauga also relied on admissions made by Dunpar Homes in response to a request to admit.
[12] On judicial economy, the parties argue that this case has “practical side effects” on the parties’ rights. Dunpar Homes has sued the respondents, alleging negligence and misfeasance in public office based on the issuance of the orders. Dunpar Homes has also started applications appealing the fees charged by the City under sections 33 and 34 of the City’s Building By-Law 0203-2019 in relation to the orders. A statutory appeal under section 25 of the Act is the proper procedural mechanism to challenge the orders. Dunpar Homes could be accused of a collateral attack in the civil action or the other appeals if it didn’t appeal the orders.
[13] This case is also “of a recurring nature but brief duration”. The backlog for scheduling hearing dates for long applications means that Dunpar Homes may never be able to appeal an order—by the time its appeal is heard, the order, as here, will be “cleared” or satisfied. This scenario is analogous to interim control by-laws. See Equity Waste Mgmt. of Canada v Panorama Inv. Grp. Ltd., 1997 CanLII 2742 (Ont CA) at para 4; TRG-KFH (Lakeside) Inc. v Muskoka Lakes (Twp), 2019 ONCA 443 at para 24.
[14] That said, I’m mindful of the court’s law-making function. The court is an adjudicative branch. I don’t believe this appeal invites the court to intrude into the role of the legislative branch.
III. FACTS
[15] Savini is the Chief Building Official for the City. Under the Act, the CBO has several roles, including overseeing the enforcement of the Act and exercising powers assigned to him under the Act (Building Code Act, s 1.1(6)). In Mississauga, the CBO has delegated some of these powers to inspectors. Inspectors also have several statutory roles, including reviewing plans, inspecting construction, conducting maintenance inspections, and issuing orders in accordance with the Act (Building Code Act, s 1.1(7)).
[16] The City employs several building inspectors. Giguere is a Building Inspector for the area at issue—he inspects construction. Russell is an Enforcement Building Inspector—he prepares orders to comply under the Act based on information from Giguere.
[17] Dunpar Homes is developing a new townhouse and single-family home development at 80 Thomas Street in Mississauga. This appeal deals with Blocks B, C, I, J, and N of the development. Each block of townhouses and each semi-detached home required a separate building permit.
[18] The site-specific zoning contemplates that the townhouse units closest to the existing homes on Callisto Court will be 3-stories, and the other townhouses will be 4-stories. The 4-story townhouses are part of Blocks D, E, F, G, and H. The City issued building permits for these blocks between March and July 2021.
[19] In late September, Giguere received a complaint that the framing for the 4-story townhouses did not comply with the approved site plan and building permit drawings. Giguere inspected the site—his inspection focused on Blocks F and G. He determined that the framing was not in compliance. The City required Dunpar Homes to submit a revised site plan application and revised building permit application to reflect the as-built conditions for the 4-storey townhomes.
[20] On October 27, 2021, Giguere attended the site to inspect Blocks D, E, F, G, and H to determine whether the construction complied with the approved drawings. Giguere saw that Dunpar Homes had started construction on Blocks B, C, I, J, and N even though the City had not issued building permits for this construction.
[21] Section 8(1) of the Building Code Act requires a building permit before construction: “No person shall construct or demolish a building or cause a building to be constructed or demolished unless a permit has been issued therefor by the chief building official.”
[22] Dunpar Homes was constructing the buildings on Blocks B, C, I, J, and N without a permit. This fact is not in dispute. It started construction on the affected blocks as early as December 2020. Dunpar Homes emphasizes that it applied for permits for most of these blocks in July 2020 and, more than a year later, they still hadn’t been approved. But Mississauga responds that it was Dunpar Homes that caused the delay.
[23] Under section 12(2) of the Act, an “inspector who finds a contravention of this Act or the building code may make an order directing compliance with this Act” (i.e., an order to comply).
[24] Russell prepared several orders to comply (No. 147213, 147214, 147215, 147216, and 147253). Russell prepared the Orders to Comply based on information from Giguere—he did not inspect the site himself, which is how the City has divided the inspectors’ powers.
[25] For Blocks B, C, I, and J, Russell served the Orders to Comply on Dunpar Homes and posted copies on the construction site on November 3rd. For Block N, Russell served and posted the Order to Comply on November 8th (he inadvertently didn’t serve and post this Order with the others). The Orders to Comply state that the inspections were done on November 2nd (Blocks B,C, I, and J) or November 8th (Block N) There were no inspections on November 2nd or 8th; the inspections were done by Giguere on October 27th.
[26] The Orders to Comply are almost identical:
[27] The Order to Comply for Block B, as an example, requires Dunpar Homes to: (a) comply with the Act “forthwith”; (b) stop work on all construction; and (c) obtain a building permit.
[28] If an Order to Comply under section 12 is not complied with “within the time specified in it, or where no time is specified, within a reasonable time”, the CBO “may order that all or any part of the construction or demolition cease” (section 14(1)). In other words, the Act requires that a stop work order be made if an order to comply is not complied with.
[29] Russell served and posted the stop work orders for Blocks B, C, I, and J on November 4th (No. 147223, 147224, 147225, and 147227) and for Block N on November 10th (No. 147263). The Stop Work Orders also all state that the inspections were done on November 2nd or 8th. The inspections were, in fact, done on November 3rd (when Russell posted the Orders to Comply for Blocks B, C, I, and J).
[30] Dunpar Homes says that Savini has created “unwritten policies” for orders to comply and stop work orders: the CBO and building inspectors (except when dealing with homeowners) “always issue: (a) an Order to Comply with an immediate compliance date; (b) a Stop Work Order the day after the issuance of an Order to Comply unless the construction site is inactive; and (c) to always issue both Orders” (applicant’s factum, para 62).
[31] Mississauga doesn’t dispute this practice. It issues both an order to comply and a stop work order when construction has started without a permit “so that it is clear to the recipient that no construction is permitted until a permit is issued.” Mississauga’s practice is to require compliance “forthwith” and then order stop work the next day if the construction site is “active”.
[32] Mississauga concedes that the Stop Work Orders do not comply with the Act because there was no breach of the Orders to Comply.
[33] The building permits for Blocks B, C, I, J, and N were issued between December 2021 and April 2022. There is no dispute that Dunpar Homes couldn’t have gotten building permits for the affected blocks immediately—it took weeks or months. The Orders to Comply and Stop Work Orders have since been “cleared” or satisfied. The City says it does not intend to pursue charges against Dunpar Homes under the Provincial Offences Act, RSO 1990, c P.33, for contravention of the Act.
[34] That said, the City has imposed fees to issue permits for the affected blocks under the City’s Building By-law: “Any person who commences construction…before a permit has been issued, shall in addition to any other penalty under the Act, Building Code or this By-law pay an additional fee in accordance with Schedule A-1, A2 or A-3 to this By-law, in order to compensate the City for the additional work incurred as a result of the commencement of the construction.” Dunpar Homes is appealing this extra fee. Separately, Dunpar Homes has started a civil action alleging negligence and misfeasance in public office related to the Orders.
[35] Dunpar Homes says that comments made at a City Council meeting on October 27th, the same day as Giguere’s inspection, influenced the inspections. This argument was not pressed either in Dunpar Homes’s factum or oral argument.
IV. DISPOSITION
A. Jurisdiction
[36] A person who considers themself aggrieved by an order made by the CBO or an inspector under the Act may appeal the order to the Superior Court of Justice within 20 days after the order is made. On an appeal, a judge may affirm or rescind the order and take any other action that the judge considers the CBO or inspector ought to take in accordance with the Act and the regulations and, for those purposes, the judge may substitute their opinion for that of the CBO or inspector (Building Code Act, s 25).
B. Standard of Review
[37] In Ashburner v Adjala-Tosorontio (Twp.), 2016 ONSC 2665 (Div Ct) at para. 40, the Divisional Court held that for appeals under section 25, the standard of review for administrative decision-makers applies—the standard of correctness applies to questions of law decided by a CBO, but questions of fact and mixed fact and law are reviewed on the standard of reasonableness. See Ashburner at para 41; Toronto District Sch. Board v Toronto (City), 2014 ONSC 5494 (Div Ct) at para 18.
[38] Ashburner predates the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. In that case, the Supreme Court revised the standard of review analysis. Whenever a court reviews an administrative decision, it should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness.
[39] The presumption of reasonableness review can be rebutted in two types of situations. First, as here, where the legislature has said that it intends a different standard to apply. If the legislature has provided a statutory appeal mechanism, it has subjected the administrative regime to appellate oversight and it expects the court to scrutinize such administrative decisions on an appellate basis. Where, for example, a court hears an appeal from an administrative decision, it would apply the standard of correctness to questions of law, including on statutory interpretation and the scope of a decision maker’s authority. When the scope of the statutory appeal includes questions of fact or questions of mixed fact and law, the standard is palpable and overriding error for such questions.
[40] The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of legal questions — constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to the jurisdictional boundaries between two or more administrative bodies.
[41] So, in short, Vavilov changes the standard of review for questions of mixed fact and law in a statutory appeal from a CBO’s or inspector’s decision—they are now to be reviewed for a palpable and overriding error. This revised framework is consistent with the pre-Vavilov jurisprudence that deferred to the decisions of CBOs. Municipal planning and zoning are “specialized areas” that fall within the expertise of the CBO. Most of the determinations made by CBOs are mixed questions of fact and law. See Berjawi v Ottawa (City), 2011 ONSC 236 at para 12.
[42] On questions of law, the standard of review remains correctness. When applying the correctness standard, the reviewing court may choose either to uphold the CBO’s determination or to substitute its own view. While this court should take the CBO’s reasoning into account, I am ultimately empowered to come to my own conclusions on the question.
C. Analysis
1. Issue #1: Are the Orders incorrect or unreasonable because they were incapable of being complied with?
[43] Dunpar Homes argues that the Orders to Comply were “incapable” of being complied with and, as such, incorrect or unreasonable. Dunpar Homes contends that the absence of any date either in the preamble or in the “compliance date” box of the Orders to Comply, combined with the use of “forthwith”, means that it had to get building permits immediately, which it could not do. The Orders to Comply put it into “automatic breach”. Dunpar Homes’s evidence, which Mississauga doesn’t contradict, is that it took weeks or months to issue building permits for the affected blocks. Dunpar Homes further argues that Mississauga should not have made the Stop Work Orders absent a breach of the Orders to Comply.
i. Standard of Review
[44] Dunpar Homes states that this question should be reviewed on a standard of correctness because the CBO’s decision involves a question of law (as stated by Dunpar Homes in the applicant’s factum, para 50, “whether the CBO exceeded his statutory authority to issue Orders with remedial requirements that are incapable of compliance”).
[45] Dunpar Homes argues that Quinn Truck Lines v Snow, 1981 CanLII 67 (SCC), [1981] 2 SCR 657 at 658-9 (which, in turn, quotes from Sec’y of State for Educ. and Science v Tameside (Borough), [1976] 3 All ER 665) suggests that the failure to consider a “jurisdictional fact” is an error of law. In Tameside, the House of Lords held that the Secretary of State made a reviewable error when he exercised his judgment without properly considering preconditions in the underlying statute (requiring him to “satisfy” himself that the local authority was acting unreasonably). It’s difficult to tell from the Supreme Court of Canada’s reasons whether the courts in either Quinn Truck or Tameside considered these two cases to be errors of law.
[46] In my view, it is better to analyze the standard of review by reference to Vavilov. In doing so, I disagree with Dunpar Homes’s framing of this question as jurisdictional. The CBO had jurisdiction to issue orders to comply and stop work orders and to require compliance “forthwith” under the Act. The question on this appeal is whether his decision to do so in the circumstances here was a reversible error. Following Vavilov, the standard of review is palpable and overriding error.
ii. Legal Framework
[47] In support of its position on the merits, Dunpar Homes principally relies on three decisions. First, in Czumak v Etobicoke (City), [1994] OJ no 2247 (Prov Ct), Justice Fairgrieve, in an appeal from a conviction under the Act, held that an order to comply “forthwith” means “as soon as reasonably practicable” in the circumstances (at para 30). In that case, the defendants changed renovation plans for their home before a new building permit could be issued. Etobicoke issued, among other orders, an order to comply requiring the defendants to “Cease all work and submit revised plans showing deviations and changes for authorization by the Chief Building Official…carried out forthwith”. The next day, the CBO issued a stop work order, apparently in part because Etobicoke had not yet received an application for revision. The defendants were convicted, and the court imposed significant fines.
[48] On appeal, Justice Fairgrieve overturned the conviction. He found that the revised drawings were submitted within 7 days of the order to comply. In his view, the order to comply required the defendants to submit the drawings “as soon as reasonably practicable”, which meant as soon as the revised drawings were ready for submission. The CBO’s decision to issue the stop work order the day after the order to comply because Etobicoke hadn’t yet received revised drawings was not grounds for a conviction on this charge.
[49] Second, in Birani Homes Ltd. v Corporation of the City of London, 2017 ONSC 2679, Justice Mitchell set aside two orders of the Chief Building Official as unreasonable. In that case, London issued an order in 2011 requiring the builder to submit an engineering report to correct an unsafe foundation. The homeowners denied access to the property to the builder. London charged the builder with a POA offence. The builder resolved that matter by agreeing to a suspended sentence. London then immediately issued another order, knowing that the builder didn’t have access to the property. Justice Mitchell found that London knew the builder could not comply, which was unreasonable.
[50] Third, in Swanson v. Whitchurch-Stouffville (Town), 2009 CanLII 66995 (Ont Sup Ct), the applicant appealed two decisions related to a rental property he owned. He argued that the time he was given to comply with statutory orders was insufficient. Justice Lauwers held that the decision-makers didn’t consider other relevant factors when setting compliance deadlines, and should have given the applicant longer.
iii. The Orders to Comply Were Not Made in Error
[51] The Orders to Comply issued by Mississauga here were, in their effect, stop work orders. Dunpar Homes didn’t have building permits for Blocks D, E, F, G, and H. Nonetheless, it started construction on those blocks. The only way for Dunpar Homes to comply with the Act was for it to obtain building permits for the affected blocks.
[52] The proposition that emerges from Czumak assists Mississauga more than Dunpar Homes. Mississauga ordered Dunpar Homes to comply with the Act “forthwith”. Dunpar Homes’s non-compliance was its construction of buildings without permits. Mississauga was ordering Dunpar Homes to stop breaching the Act as soon as reasonably practicable—in other words, Dunpar Homes had to stop construction until it had a permit.
[53] For greater certainty, Mississauga also ordered Dunpar Homes to stop work on all construction on the affected blocks within a reasonable time (since no time was specified in the Orders to Comply). Dunpar Homes did so immediately. Finally, again for greater certainty, Mississauga ordered Dunpar Homes to obtain a building permit within a reasonable time (again, since no time was specified in the order).
[54] Given section 12 of the Act, not specifying a time or using forthwith means the same thing—within a reasonable time. Dunpar Homes argues that the Orders to Comply required it to get a permit as soon as reasonably practicable, and the City’s long approval process made that impossible. In fact, the Orders to Comply required Dunpar Homes to stop its illegal construction as soon as reasonably practicable.
[55] The proposition that emerges from Birani—it is unreasonable to issue orders knowing the builder can’t comply—doesn’t assist Dunpar Homes for the Orders to Comply. For Birani to apply here, the Orders to Comply would have had to require Dunpar Homes to get permits in some unreasonable amount of time. Similarly, Swanson doesn’t assist Dunpar Homes—in that case, the compliance date was around a month after the order (which the appeal judge was too short in the circumstances), whereas here Dunpar Homes had a reasonable amount of time to get the permits.
[56] No one is disputing that it would take weeks or months to get a building permit. There is no evidence that Mississauga expected Dunpar Homes to get a permit the next day, the next week, or even the next month. That said, the City expected Dunpar Homes to stop its illegal construction immediately, which it could and did.
[57] Dunpar Homes says the orders were “hastily issued and included sloppy technical errors”, which was an error. The evidence does not disclose undue haste. Mississauga responded quickly, in part, because Dunpar Homes was actively violating the Act by building without a permit. The dating errors on the Orders are not material. If Mississauga had reissued the orders with the correct date, the effect would be the same—Dunpar Homes would have to stop work until it got the building permits.
[58] Mississauga didn’t make a palpable and overriding error when it made the Orders to Comply. The Orders required Dunpar Homes to stop construction and obtain permits as soon as reasonably practicable. Dunpar Homes stopped construction immediately and obtained the permits. Did getting the permits take much longer than Dunpar Homes believes is fair? Yes—but that does not make the Orders to Comply in error or even unreasonable.
iv. The Stop Work Orders Breached the Act
[59] After making the Orders to Comply, to ensure there was no misunderstanding, Mississauga made the Stop Work Orders. Under the Act, Mississauga must make an order to comply before it makes a stop work order. Mississauga concedes that Stop Work Orders are “technically non-compliant” with the Act because there was no basis to conclude that the Orders to Comply had not been complied with (for example, the construction continued without a building permit).
[60] Given this concession, I must conclude that Mississauga made a palpable and overriding error in making the Stop Work Orders. The Act is clear: “If an order made under section 12…is not complied with within the time specified in it, or where no time is specified, within a reasonable time, the chief building official…may order that all or any part of the construction…cease.”
[61] That said, I don’t believe Mississauga’s intentions here were misguided. A stop work order tells everybody—the designer, the builder, the owner, contractors, trades, workers, public officials, and the public at large—that there should be no construction work on the site. It acts much like a red “STOP” sign. An order to comply may be more technical and require careful reading (perhaps more like a metered parking sign). Here, where the order to comply stops work, I understand why Mississauga also made a stop work order to ensure there is no lack of clarity.
2. Issue #2: Did Savini fetter his discretion?
i. Standard of Review
[62] Dunpar Homes argues Mississauga’s failure to exercise discretion when applying its unwritten policies is a reviewable error. To begin, Dunpar Homes doesn’t challenge Mississauga’s ability to create policies or practices that guide its enforcement of the Act (though it does criticize these types of policies as “especially bad administration”). I have not been provided any caselaw on the standard of review applicable to an alleged fettering of discretion following Vavilov. The Federal Court has repeatedly held, both before and after Vavilov, that a decision of administrative tribunal that is “the result of fettered discretion” will be “per se unreasonable” (see Saulteaux v Carry the Kettle First Nation, 2022 FC 1435 at para 35).
[63] In other words, it is a reviewable error if the decision-maker disregards relevant factors or if guidelines unduly restrict the decision-maker’s discretion. In my view, applying Vavilov, whether the CBO considered the relevant factors is a question of law that is reviewed on a correctness standard but his exercise of discretion is a question of mixed fact and law that is reviewed on a palpable and overriding standard.
ii. Mississauga Didn’t Fetter Its Discretion
[64] Dunpar Homes says that the inflexible application of the “unwritten policies” means that there is no discretion regarding the compliance date or consideration of other factors, such as a pending application for a building permit. It also says that Mississauga is considering irrelevant factors, like whether the builder is a homeowner or developer and whether the site is “active”.
[65] My analysis has to focus on the facts here—did the CBO fetter his discretion in issuing the Orders to Comply? No—Dunpar Homes was constructing the affected blocks without a permit. There were no other factors for the CBO to consider—the delay in getting permits may be a problem, but it doesn’t make the CBO’s decision to stop construction a reversible error. The factors in Swanson don’t apply here—in that case, the CBO there made an Unsafe Building Order against a homeowner, leaving him only a month to remedy significant deficiencies. The equities were very different than here, where a sophisticated and large builder decided to begin construction because the City was taking, in the builder’s view, too long to issue the permits.
[66] Dunpar Homes also argues that the City’s institutional structure prevents inspectors from considering relevant factors. The City employs an inspector who inspects building sites (here, Giguere) and an enforcement inspector (here, Russell) who prepares orders based on Giguere’s information. Dunpar Homes says that Russell can’t consider relevant factors because he isn’t inspecting the building sites. In my view, in a city the size of Mississauga, it would be impractical for an inspector to inspect every building site for compliance with the Act, prepare the orders, make them, serve them, and then ensure compliance or enforcement.
[67] Further, there is no evidence that this institutional structure prevents Russell from exercising his discretion in deciding whether to issue orders. In any event, there is no evidence of other relevant factors. Again, that Dunpar Homes had applied for permits a long time ago doesn’t mean that it can construct the affected blocks without a permit and then demand flexibility when it is caught doing so.
VI. ORDER
[68] I order that the Orders to Comply are affirmed.
[69] Mississauga argues that I should not rescind the Stop Work Orders because there was no practical consequence when they were made, and none now that they have been cleared. Mississauga also says the Stop Work Orders are consistent with the “spirit of the Act”. As discussed above, I don’t disagree—I can see the benefit of issuing a Stop Work Order to ensure that the world at large knows that no construction on the site should proceed. But the Orders don’t comply with the Act and should not have been issued. As a result, I order that the Stop Work Orders are rescinded.
VII. COSTS
[70] The parties should attempt to resolve the issue of costs on their own. If they cannot do so, the parties may each file their costs submissions (five pages, double-spaced, one-inch margins), bill of costs, and any offers to settle on or before November 15, 2022. The parties may respond on or before November 30, 2022 (five pages, double-spaced, one-inch margins). If I have received no submissions within these time limits, I will assume that the parties have resolved the issue and make no costs order.
Agarwal J.
Released: November 1, 2022
COURT FILE NO.: CV-21-00004191-0000
DATE: 2022 11 01
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
1672736 Ontario Inc.
Applicant
– and –
Ezio Savini in His Capacity as Chief Building Official of the Corporation of the City of Mississauga and the Corporation of the City of Mississauga
Respondents
REASONS FOR JUDGMENT
Agarwal J.
Released: November 1, 2022