Court File and Parties

Court File No.: CV-22-00688721-0000 Date: 2023-10-06 Ontario Superior Court of Justice

Between: Luke Vitale, Applicant And: City of Toronto, Respondent

Counsel: Jonathan Rosenstein, for the Applicant Mark Siboni and Meghan Faught, for the Respondent

Heard: September 28, 2023

Before: Perell, J.

Reasons for Decision

A. Introduction

[1] The applicant Luke Vitale, who is a real estate developer, owns and lives at 3 Island View Blvd. in the City of Toronto. The property was zoned for use as a single-family dwelling in 1963. Before the property was zoned, it was improved by a three-storey building constructed in 1927 as a single-family dwelling. Sometime between 1927 and 2011, the building on the property was converted into a five-unit residential multiplex. In 2021, pursuant to a Building Code Act Order to Comply, the City of Toronto ordered Mr. Vitale to “revert the use of the building” into a three-unit dwelling, which Mr. Vitale says it never was.

[2] The City is prosecuting Mr. Vitale under the Building Code Act, 1992 for not complying with its Order to Comply to revert the five-unit dwelling into a three-unit dwelling. Mr. Vitale says the Order to Comply is an example of a bureaucracy gone amok and a Kafkaesque impossibility; how can one revert a building to something that never existed? He says that the City has no evidence upon which to make its Order to Comply. He brings this application to have the City’s Order rescinded.

[3] For the reasons that follow, although Mr. Vitale’s application is out of time, I exercise the court’s discretion under the Building Code Act to grant an extension of the time to appeal, and I grant his appeal on terms.

[4] It is unusual but there is nothing Kafkaesque about what occurred, and Mr. Vitale has been very fairly and reasonably treated by the City of Toronto. However, there is a fatal flaw in the City’s Order to Comply. In the immediate case, the City relied on s. 10 (1) of the Building Code Act, 1992, but as I shall explain below, that provision of the Act is not legally appropriate for the unusual circumstances of the immediate case. Therefore, Mr. Vitale’s application is granted on terms that he must use the building on his property only for three dwelling units.

[5] As I shall explain in more detail below, in the immediate case, it is the existence of the use of more than three tenancies on the property that is the problem. That problem could have been dealt with pursuant to the Planning Act, where however, Mr. Vitale would have been confronted with the considerable difficulty of proving that his use of the property was a lawful non-conforming use. To prove a legal non-conforming use, a party must prove that: (a) the use of the land, building or structure was lawful at the time of the enactment of the zoning restriction (in this case 1963); and (b) the use continued thereafter. Feather v. Bradford (Town), 2010 ONCA 440.

[6] Ironically, Mr. Vitale could have - and should have - complied with the City’s Order to Comply. Had he complied, he would have avoided prosecution and the need to bring this appeal. Ironically, his compliance with the Order to Comply would not have interfered with his ultimate plans for 3 Island View Blvd., which is to demolish the multiplex and to build a single-family home on the property.

B. Procedural and Evidentiary Background

[7] On September 30, 2022, Mr. Vitale commenced this appeal pursuant to the Building Code Act. In his Notice of Application, he sought:

a. an appeal of the Building Code Order dated June 7, 2021 issued by the City of Toronto through the Toronto Building Division bearing number number 21-166920-COU-00-VI;

b. an order rescinding the Building Code Order;

c. costs; and

d. such other relief as counsel may advise and the court may see fit to grant.

[8] On June 26, 2023, the City delivered its Responding Motion record.

[9] Mr. Vitale supported his application with the following evidence:

a. affidavit dated October 13, 2022 of Mr. Vitale.

[10] The City resisted the application with the following evidence:

a. affidavit dated June 26, 2023 of Carl Baron. Mr. Baron is an employee of the City of Toronto. He is a Manager of Inspections for the Etobicoke York District. Mr. Baron supervised the inspectors that inspected 3 Island View Blvd. Mr. Baron has had many meetings and communications with Mr. Vitale and his lawyers about the building on the property.

[11] On August 28, 2023, Mr. Vitale and Mr. Baron were cross-examined.

C. Facts

[12] The residence municipally known as 3 Island View Blvd. is located in the former Town of Mimico, which is in the former municipality of Etobicoke. The residence is on a lot abutting Lake Ontario. There is an excellent view of downtown Toronto. The City’s records indicate that a three-storey building was constructed on the property in 1927. At the time when the building on the property was constructed, there were no zoning by-laws restricting how the property could be used. From the outside, externally, the property appears to be a single-family dwelling.

[13] From the inside, the property is now a residential multiplex. The building on the property was originally constructed as a single-family dwelling, but at some time over the last almost a century, it was converted into five units. When the inside of the building was partitioned into multiple units is at present unknown. What is known is that for many years the building had at least four and sometimes five dwelling units.

[14] On July 19, 1962, Mimico’s Counsel enacted By-law No. 1930, which came into force on January 30, 1963. The by-law restricted the use of 3 Island View Blvd. to a single-family dwelling. That zoning use restriction has persisted to this day. Under the current city-wide comprehensive Zoning By-law, 3 Island View Blvd. is located in the RD Zone, which zoning restricts residential occupancy to single-family dwellings only.

[15] In 2011, Mr. Vitale purchased 3 Island View Blvd. At the time of Mr. Vitale’s purchase, the building had multiple entrances and had five apartments. Mr. Vitale moved into one of the apartments. Although it had five residential units, it is not clear whether five or only four units or only three units were being occupied.

[16] Before purchasing the property, Mr. Vitale retained Howard Saginur, a conveyancing lawyer, and on June 6, 2011, Mr. Saginur wrote the City’s Building Department and made an inquiry about the zoning applicable to 3 Island View Blvd., and on June 28, 2011, Rose Borg, a Senior Plan Examiner replied to Mr. Saginur’s letter. Her letter stated:

Re: 3 Island View Blvd., Toronto ON (Reference Number 11 211060 ZPU 00 ZR)

This will acknowledge receipt of your letter dated June 6, 2011, and based solely on the information on file our records show that the “dwelling” was built in 1927 prior to the Etobicoke Zoning Code standards. The R1 Mimico zoning restricts the residential occupancy to single family dwellings only. We have no records confirming the dwelling as having three apartment units. However, since the dwelling was constructed prior to the zoning bylaw, the site may have lawful non-conforming status, unfortunately due to lack of records on this property we cannot confirm the number of units that existed prior to zoning.

The location in question is zoned R1 Mimico in the area governed by The Etobicoke Zoning Code, as amended. The lot also abuts a W zone which is governed by bylaws 1981-188 and 1982-119.

This is provided as zoning information only and is subject to any contrary ruling of a court of competent jurisdiction. It is recommended that you satisfy yourself as to whether the uses comply with the Zoning By-law and the Ontario Building Code.

[17] Pausing here in the description of the facts, Mr. Saginur’s zoning inquiry letter can no longer be found, but it appears that Ms. Borg was responding to the routine conveyancing lawyer’s letter asking a municipality whether the present uses of the property could lawfully be continued. It seems that Mr. Saginur was inquiring about whether a three family dwelling was a lawful use for 3 Island View Blvd. He received an equivocal, tolerant, satisfy yourself, response from the City. I repeat that although there were five residential units in the property when Mr. Vitale purchased the property, it is not clear how many of the five were occupied.

[18] Mr. Vitale purchased the property and he and his family moved into the unit that was on the first floor of the building. He rented the four other units of the property.

[19] In 2013, after Mr. Vitale began to construct a backyard wooden deck at 3 Island View Blvd., the City received a complaint that the construction was being undertaken without a building permit. A city inspector attended at the property, and as a result, the City issued an Order to Comply (No. 13 197806 WNP 00 VI). The Order required Mr. Vitale to obtain a permit authorizing the construction or to stop the construction and remove any work undertaken. Mr. Vitale applied for the requisite permit to regularize the construction of the deck.

[20] As the owner of the property, on November 13, 2013, Mr. Vitale submitted a signed Building Permit Application (No. 13 264838 BLD SR) for the deck. The declaration at the bottom of the Application, which was signed by Mr. Vitale, stated that the information contained in the application is true, to the best of applicant’s knowledge. The Building Permit Application described the proposed work as a small residential project for a detached single-family dwelling. The Application described the current use of the building and the proposed use of the building as being a detached single-family dwelling. This description of the current use was obviously false.

[21] The Site Plan dated July 8, 2013, which accompanied the Building Permit Application was prepared by Joseph Kostantin, Architect. The Site Plan described the proposed construction and the building’s existing major occupancy as “‘C’ Residential Dwelling Unit” and the building’s existing occupant load as a “single-family dwelling”.

[22] It may be that the Architect was referring to the external appearance of the building. Or it may be that he was mistaken or wrongly instructed by Mr. Vitale as to the current use of the building but in July 2013, 3 Island View Blvd. was externally a “single-family dwelling” but internally it was a three, four, or five family-unit dwelling.

[23] In any event, Mr. Vitale obtained his building permit for the backyard deck and nothing of import occurred for four years. On September 14, 2017, the City received a complaint that the use of 3 Island View Blvd. had changed to increase the number of apartment units.

[24] On October 3, 2017, City Building Inspector Mike Tarantino attended at 3 Island View Blvd. to inspect it. No one was present, and Inspector Tarantino left a card for the owner, i.e., Mr. Vitale, to contact him.

[25] On October 17, 2017, Mr. Vitale wrote to Inspector Tarantino. In that letter, Mr. Vitale stated that he had recently engaged an architect to design and construct a new, single-family dwelling on 3 Island View Blvd. Mr. Vitale said that he planned to submit the permit application within four to six months. This correspondence may also explain the architect’s mistake in the for a building permit in describing the property as a single-family dwelling.

[26] On October 25, 2017, Mr. Vitale spoke to Inspector Tarantino. During that call, Mr. Vitale told Inspector Tarantino that the property was being used as a multiplex with three dwelling units. During his cross-examination, Mr. Vitale said that he made a mistake and that the property actually had five dwelling units. It may be that there were five dwelling units of which only three were in use or it may be that Mr Vitale was speaking about his plans for the building.

[27] Nothing appears to have happened of note for the next three and a half years.

[28] On April 13, 2021, the City of Toronto’s Building Department received a complaint from the tenant occupying an apartment on the third floor of 3 Island View Blvd. The tenant complained that Mr. Vitale’s property was being used as a five-unit multiplex, and that there were potential contraventions of the zoning by-laws, the Building Code Act, 1992, and the Ontario Building Code. The tenant also complained to the Toronto Fire Service (the Fire Department). There was a complaint that construction was ongoing without a required building permit under the Ontario Building Code.

[29] On April 14, 2021, Artur Gaj, a Toronto Building Inspector attended at Mr. Vitale’s property. Inspector Gaj did not observe any construction. He left without inspecting. He left his card along with a request for access to the property to complete an inspection. Later in the day, Inspector Gaj spoke to Mr. Vitale who told him that the property was a legal non-conforming use multiplex that he planned to renovate to a single-family dwelling.

[30] Inspector Gaj and Mr. Vitale spoke again on April 16, 2021. Mr. Vitale said that the property was being used as a multiplex dwelling with four units. He said that it would soon be used as a multiplex with three dwelling units.

[31] On April 19, 2021, Mr. Vitale sent the following email message to Inspector Gaj:

[…] There are currently 4 units. Soon to be three units. We have a hearing scheduled on April 27 with The individual that called you to issue a complaint (who also did so with fire). She occupies the top floor. I have been waiting for an LTB [Landlord and Tenant Board] hearing since last year. Once she is gone the 4th floor will be bedrooms for my family. […]

[32] I find as a fact that Mr. Vitale’s email message accurately described the factual circumstances that existed in April 2021. At that time, 3 Island View Blvd. “currently” had four residential units previously having had five residential units, when Mr. Vitale purchased the property a decade earlier. Whether the conversion of the single-family home into a multiplex had occurred before 1963 was not known to Mr. Vitale.

[33] On April 27, 2021, the tenant on the third floor provided the City with additional details of the complaint. The tenant/complainant said that 3 Island View Blvd. was being used as a multiplex. The complainant attached a schematic prepared by a building measurement company for Mr. Vitale. The schematic depicted the property as a multiplex with four units.

[34] On May 6, 2021, Inspector Gaj attended at 3 Island View Blvd. and inspected the property. Inspector Gaj observed:

a. There was one dwelling unit on the main floor (Unit 1), comprised of three bedrooms, a kitchen, and a bathroom. The kitchen electric stove had no exhaust hood. There was a direct exit through the rear, and a direct exit through a corridor on the main floor.

b. There were two dwelling units on the second floor (Units 2 and 3). Each dwelling unit had a bedroom, kitchen, and bathroom. The kitchen electric stoves had no exhaust hoods. The exit for these units was down a staircase to the corridor on the main floor.

c. There was one dwelling unit (Unit 4) on the third floor, comprised of a bedroom, a bathroom, a kitchen, and two balconies, at the front and rear of the property. The kitchen electric stove had no exhaust hood. The exit for this unit down a staircase to the corridor on the main floor.

d. In the basement, there was a laundry/utility room with a furnace, an area with a kitchen, and an open area. A bathroom had been in the laundry room, but the bathroom had been removed. The laundry/utility room was in the process of being drywalled. Access and egress to the basement was through a rear door and through the garage.

[35] Mr. Vitale told Inspector Gaj that the property had been inspected by the Toronto Fire Service (the “Fire Department”) and that the Fire Department’s inspector had noted that there was no fire escape on the third floor. Mr. Vitale acknowledged that this deficiency had to be addressed.

[36] As a result of his inspection, Inspector Gaj concluded that 3 Island View Blvd. had originally been a single-family dwelling; however, many years ago, the building had been altered to create five apartments. He concluded that the property was being used as a multiplex with four dwelling units.

[37] These conclusions presented an enforcement problem for Inspector Gaj because under the Ontario Building Code, any change in use to a property increasing the number of dwelling units, warrants scrutiny to ensure that no hazard is created in respect of, among other things, the necessary building separations, fire separations, access and egress routes, and heating, ventilation, and air conditioning systems.

[38] Pausing again in the description of the facts, there is no doubt that at some time after 1927, the building at 3 Island View Blvd. had been converted from a single-family dwelling to a four-five unit dwelling. What, however, was not known is how many units were converted before 1963 when the zoning use by-law came into force. If the converted use was established before 1963 and continued uninterrupted thereafter, then the use of the property would be a lawful non-conforming use. But, if the conversion took place after 1963, then the use of the property as other than a single-family dwelling would be unlawful as a contravention of the land use zoning by-law.

[39] On May 12, 2021, Inspector Gaj obtained a copy of the Notice of Violation issued by the Fire Department and a copy of a floorplan it had prepared. The Notice of Violation and the floor plan depicted the property as being used as a multiplex.

[40] Mr. Vitale has never applied for a Change of Use Permit pursuant to s. 10 of the Building Code Act, and on June 7, 2021, the City issued Order to Comply No. 21 166920 COU 00 VI. The Order was served on Mr. Vitale. The Order to Comply stated:

An inspection on Jun 7, 2021 at the above-referenced address found the following contravention(s) of the Building Code or the Building Code Act, 1992.

The above location is in contravention of Section 10, Subsection (1) of the Building Code Act, S.O.1992, c.23, as amended, which states "Even though no construction is proposed, no person shall change the use of a building or part of a building which would result in an increase in hazard as determined in accordance with the Building Code, unless a permit has been issued by the Chief Building Official" because the following change of use has proceeded prior to obtaining a permit.

You are hereby ordered to correct the contraventions itemized below by the dates listed below, or by Jul 7, 2021.

Item Reference Description and location Required action and compliance date

1 B.C.A. 10.1 [sic 10 (1) The occupancy of the building has changed from 3 dwelling units to 5 dwelling units. This change of use has resulted in an increase in hazard as per O.B.C. Div. C 1.3.1.4. You are advised to submit plans and obtain the necessary permits for the said change of use. Alternatively, revert the building use back to its last legal use.

Note: • An Order may be appealed to the Superior Court of Justice. [Building Code Act, 1992 s. 25]. It may also be appealed to the Building Code Commission concerning the sufficiency of compliance with the technical requirements of the Building Code. [Building Code Act, 1992 s. 24] • Failure to comply with this Order is an offence which could result in a fine. [Building Code Act, 1992 s.36]

[41] Pausing yet again in the description of the facts, for the legal analysis later, it shall be important to keep in mind three observations.

a. The first observation is to note what Inspector Gaj could have done - but did not do - as an alternative to issuing an Order to Comply pursuant to s. 10 (1) of the Building Code Act. In the circumstances of the immediate case, Inspector Gaj could have initiated a building standards inspection, and if he found that the property did not conform with the building standards by-law, he could have made an Order to Comply pursuant to s. 15.2 of the Act to make repairs to the building. Inspector Gaj, however, did not proceed pursuant to the building standards provision of the Act; rather, he issued an Order to Comply that stipulates that Mr. Vitale had contravened s. 10 (1) of the Building Code Act because “no person shall change the use of a building which would result in an increase in hazard as determined in accordance with the Building Code.”

b. The second observation is that s. 10 (1) of the Building Code Act was an awkward fit for the circumstances of the case. The point to note is that Mr. Vitale did not change the use of the residence at 3 Island View Blvd. He acquired a property that had already been changed; he did not acquire a single-family dwelling and then convert its use. The building had already been converted into a multi-family dwelling.

c. The third observation that shall be important to keep in mind for the analysis below is to observe that to comply with the Order to Comply, Mr. Vitale is advised: (a) to submit plans and obtain the necessary permits for the said change of use; or (b) revert the building use back to its last legal use. In particular, it shall be important to observe that under the second alternative for compliance of “revert the building use back”, grammatically speaking, “building” is a deverbal adjective that modifies the noun “use.” In other words, grammatically, the interpretation of the Notice to Comply is that it required Mr. Vitale to restore the “use” of the building to its last legal use. The second alternative does not require Mr. Vitale “to restore the building;” it requires him “to restore the use.” (This observation explains the irony of which I spoke in the Introduction to these Reasons for Decision and of which I will speak again below.) (I shall return to this matter below, but Counsel for the City did not dispute that the Order to Comply could be grammatically interpreted in this way.)

[42] Returning to the description of the facts, the Order to Comply also set out Mr. Vitale’s right to appeal to the Superior Court pursuant to s. 25 of the Building Code Act and that failure to comply could result in prosecution and the imposition of a fine. Mr. Vitale did not comply with the Order to Comply.

[43] After the issuance of the Notice to Comply in June 2021 until March 2022, there were numerous engagements and communications by phone and email between the officials of the Chief Building Officer and the Toronto Building Department staff with Mr. Vitale and Mr. Saginur.

[44] Mr. Baron had numerous interactions with Mr. Vitale. Mr. Vitale’s position was that the use of 3 Island View Blvd. as a multiple dwelling unit was a legal non-conforming use and should be recognized as such. Mr. Baron disagreed. The City’s position was that Mr. Vitale had to present cogent evidence that the property had been used as a five-unit dwelling before the enactment of the single-family dwelling zoning by-law restriction came into force, and that the use has continued, unabated, since then. The City said that there was no such evidence, and rather, the evidence indicated that the property was being used illegally and the illegality had to be stopped.

[45] Neither Mr. Vitale nor the City appreciated that all that Mr. Vitale needed to do to comply with the Order to Comply was reduce the tenancy load at the property, which he could do with any destruction, reconstruction, or construction. Since in June 2021, there were one owner-occupied unit (Unit 1) and three leased units (Units 2, 3, and 4); a reversion to the last legal use could be achieved by Mr. Vitale vacating his unit or by his terminating one of the tenancies or by his asking one of the tenants to surrender his or her lease. To compound the ironies, Mr. Vitale had a pending hearing before the Landlord and Tenant Board to evict the tenant on the third floor of the building.

[46] On February 18, 2022, the City issued a demand letter. The letter set out, among other things, how continued failure to comply could result in the City initiating further enforcement action, including prosecution pursuant to s. 36 of the Building Code Act. Mr. Vitale did not appeal the demand letter pursuant to the Building Code Act.

[47] On March 21, 2022, the City initiated a prosecution against Mr. Vitale pursuant to s. 36 of the Building Code Act for the offence of failing to comply with the Building Code Order.

[48] On May 4, 2022, Mr. Vitale was served with a summons to appear before the Ontario Court of Justice in connection with the prosecution of the City’s Building Code Order.

[49] On September 30, 2022, Mr. Vitale commenced this appeal application pursuant to s. 25 of the Building Code Act. The parties agreed to take no steps with respect to the prosecution pending the outcome of this application.

D. Discussion and Analysis

1. Statutory and Legal Background

[50] For present purposes the relevant provision of the Planning Act is s. 34 (9), which states:

Excepted lands and buildings

34 (9) No by-law passed under this section applies,

(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; or

(b) to prevent the erection or use for a purpose prohibited by the by-law of any building or structure for which a permit has been issued under subsection 8 (1) of the Building Code Act, 1992, prior to the day of the passing of the by-law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under subsection 8 (10) of that Act.

[51] For present purposes, the relevant provisions of the Building Code Act, 1992 are sections 8, 10, 15.2, 25, and 36, which state:

Building permits

8. (1) 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.

Change of use

10. (1) Even though no construction is proposed, no person shall change the use of a building or part of a building or permit the use to be changed if the change would result in an increase in hazard, as determined in accordance with the building code, unless a permit has been issued by the chief building official.

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.

Contents of order

(2) An officer who finds that a property does not conform with any of the standards prescribed in a by-law passed under section 15.1 may make an order,

(a) stating the municipal address or the legal description of the property;

(b) giving reasonable particulars of the repairs to be made or stating that the site is to be cleared of all buildings, structures, debris or refuse and left in a graded and levelled condition;

(c) indicating the time for complying with the terms and conditions of the order and giving notice that, if the repair or clearance is not carried out within that time, the municipality may carry out the repair or clearance at the owner’s expense; and

(d) indicating the final date for giving notice of appeal from the order.

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.

Offences

36 (1) A person is guilty of an offence if the person,

(a) […]

(b) fails to comply with an order, direction or other requirement made under this Act; or

(c) contravenes this Act, the regulations or a by-law passed under section 7.

Penalties

(3) A person who is convicted of an offence is liable to a fine of not more than $50,000 for a first offence and to a fine of not more than $100,000 for a subsequent offence.

Power to restrain

(7) If this Act or the regulations are contravened and a conviction is entered, in addition to any other remedy and to any penalty imposed by this Act, the court in which the conviction is entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted.

[52] For present purposes the relevant provisions of the Ontario Building Code are sections 1.3.1.4, which state:

1.3.1.4. Permits Under Section 10 of the Act

(1) Except as provided in Sentence (2), the following changes in use of a building or part of a building constitute an increase in hazard for the purposes of section 10 of the Act and require a permit under section 10 of the Act:

(a) a change of the major occupancy of all or part of a building that is designated with a “Y” in Table 1.3.1.4. takes place,

(g) the use of a building or part of a building is changed and the previous major occupancy of the building or part of the building cannot be determined.

Table 1.3.1.4. Permit Required for Change of Use

(2) A person is exempt from the requirement to obtain a permit under section 10 of the Act where the change in use of the building or part of the building will result from proposed construction and a permit under section 8 of the Act has been issued in respect of such construction.

(3) A person is exempt from the requirement to obtain a permit under section 10 of the Act for the change of use of a building in unorganized territory.

2. The Untimeliness of the Appeal

[53] The Order to Comply was issued on June 7, 2021. There was no appeal. The City’s demand letter was delivered on February 18, 2022. There was no appeal. Mr. Vitale was served with a summons to appear before the Ontario Court of Justice in connection with the prosecution on May 4, 2022. An appeal was not pursued within 20 days of delivery of that summons. Mr. Vitale appealed five months later on September 30, 2020.

[54] Pursuant to s. 25 (2) of the Building Code Act, the court may extend the time for making the appeal, if the judge is satisfied that there are reasonable grounds for the appeal and for applying for the extension. In the absence of any reasonable explanation for the delay, Courts have denied extensions. Oxbow Lake Cottagers Assn. v. Lake of Bays (Township), at paragraphs 19-21.

[55] In the immediate case, I am satisfied that there were reasonable grounds for launching an appeal and that there are reasonable grounds for granting an extension.

[56] Although Mr. Vitale does not articulate and elaborate why he delayed in bringing his appeal, the factual narrative reveals abundant reasons for the delay. For over a decade, Mr. Vitale and the City have been trying to come to terms with whether or not Mr. Vitale had established a legal non-conforming use for some degree of a multiplex at 3 Island View Blvd. Mr. Vitale was persistent in his attempt to persuade the City that he had a legal non-conforming use, but he was unconvincing, and the City issued a Notice to Comply and brought enforcement proceedings. The delay in Mr. Vitale appealing is explained by his unsuccessful efforts to negotiate a settlement or to get the City to acquiescence.

[57] Mr. Vitale’s ultimate plan was and is to restore the building to its status as a single-family dwelling, and it seemed to him that this goal should be acceptable to the City. What Mr. Vitale failed to appreciate was that there was a hazard at the property and thus the City felt obliged to resort to s. 10 (1) of the Building Code Act. When the parties could not come to terms, Mr. Vitale filed his late appeal.

[58] In these circumstances, I would exercise the court’s discretion and extend the time for the appeal.

E. The Merits of the Appeal

[59] Notwithstanding Mr. Vitale’s argument in his factum, he was fairly treated by the City, and the circumstances of the immediate case, while unusual, are not Kafkaesque.

[60] The City quite reasonably could have taken the position that 3 Island View Blvd. was an illegal non-conforming use from the single-family dwelling use prescribed by the zoning by-law.

[61] The building on the property appeared from the outside to be a single-family dwelling. Internally, however, it had been partitioned into four or five units with the basement unit being transitory. When Inspector Tarantino spoke to Mr. Vitale in 2017, the City could have taken the position that the three-unit use that Mr. Vitale said was being made of the property was an illegal non-conforming use.

[62] Section 34 (9) of the Planning Act provides that a land use zoning by-law does not prevent the use of a building that is prohibited by the by-law if the building was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose. From the time that Mr. Vitale purchased 3 Island View Blvd. in 2011 until today, there is no evidence that establishes precisely when the conversion of the building on the property from a single-family dwelling to a multi-family dwelling of three to five units occurred. It is known that a conversion occurred – not recently. It is, however, not known whether the conversion occurred before or after 1963, and it is not known the extent to which the conversion continued lawfully after the changes to the building were made.

[63] Thus, in 2017, it appears that the Inspector and the City were prepared to take Mr. Vitale at his word and not take any steps to test Mr. Vitale’s word. The City could have been strict, and with hindsight perhaps it ought not to have been so indulgent. Had the City pressed the matter in 2017, it could have sued Mr. Vitale for contravention of the zoning by-law, in which case, the onus would have been on him to establish that the building on 3 Island View Blvd. was lawfully used as a three to five unit multiplex before 1963 and the onus would have been on him to prove that the building continued to be used as a three to five unit multiplex until 2017.

[64] Given that there are thirty-six years between 1927 and 1963 and ninety-years between 1927 and 2017, that would be, practically speaking, a heavy burden of proof for Mr. Vitale. The fact that he had received an equivocal letter from the City in 2011 about whether the use being made of the building on the property was lawfully continuing and the hearsay evidence of the neighbours about the distant past has negligible weight.

[65] Similarly, when four more years passed and Inspector Gaj inspected the property in 2021, the City could have, and perhaps ought to have, sued Mr. Vitale pursuant to the Planning Act for a zoning use contravention.

[66] After Inspector Gaj’s 2021 inspection, the City also quite reasonably could have determined whether or not the building at 3 Island View Blvd. complied with the building standards provisions of the Building Code Act and it could have issued a Notice to Comply pursuant to s.15.1 of the Act to make repairs if there was non-compliance with the building standards by-law. It was moving in that direction with the Order to Comply, which when a permit was applied for, a building standards and zoning review would have followed.

[67] In 2021, the City took enforcement steps under s. 10 (1) of the Building Code Act. It is significant to note that s. 10 (1) begins with the words “Even though no construction is proposed, no person shall change the use of a building.” It appears that the City thought that Mr. Vitale’s circumstances came within the meaning of this introductory statutory language, and it also appears that the City believed that: (a) Mr. Vitale had purchased the property as a three-family dwelling, and it appears that the City was prepared to assume that: (i) a three-family dwelling was a lawfully continuing use, but (ii) without a building permit, Mr. Vitale had converted the building into a five-unit dwelling. Thus, the City concluded that Mr.Vitale’s circumstances came within the statutory language that: “the change would result in an increase in hazard, as determined in accordance with the building code.”

[68] In short, in 2021, the City believed that Mr. Vitale had breached s. 10 (1) of the Building Code Act and it issued a Notice to Comply. This was a responsible, reasonable, and good faith action by the City, but for the reasons expressed above in the description of the facts, it was a mistake because Mr. Vitale’s circumstances did not fit within s. 10 (1) of the Act.

[69] This mistake was an error of law. The standard of review to be applied when considering a decision made by a Chief Building Officer or building inspector to issue an Order of Compliance on a question of law is correctness. Where the review requires examination of a mixed question of fact and law, or a pure question of fact, the standard is reasonableness.

[70] Mr. Vitale did not, to use the language of s. 10 (1), change the use of 3 Island View Blvd. or permit the use to be changed. The City erred in interpreting s. 10 (1) as applying to Mr. Vitale’s situation. When he purchased the building on the property in 2011, its use as a single-family dwelling or its use as a multi-family dwelling had already changed. Inspector Gaj’s inspection suggested that the change had occurred many years ago, although whether the change was a lawful or unlawful non-conforming use would depend on whether the change occurred before or after 1963. If I am mistaken that the City’s error was an error of law, then it made an unreasonable error of mixed fact and law.

[71] The City could have resolved the issue of whether the change in use was lawful or unlawful by proceeding to prosecute a zoning violation pursuant to the Planning Act, or it could have proceeded under the property standards provisions of the Building Code Act, but instead, it proceeded under s. 10 (1) of the Building Code Act. Double ironically, this approach benefited Mr. Vitale because he undoubtedly would have had difficulties proving that he had purchased a legal non-conforming use and unbeknownst to him he could have complied with the Notice to Comply in a way that aligned with his ultimate plans to make the building compliant with its contemporary zoning as a single-family dwelling.

[72] In June 2021, there was one owner-occupied unit (Unit 1) and three leased units (Units 2, 3, and 4); therefore, a reversion to a three-unit dwelling, which the City believed was the last legal non-conforming use, could be achieved by Mr. Vitale vacating his own unit or by his terminating one of the tenancies or by his asking one of the tenants to surrender his or her lease.

[73] Thus, in the unusual circumstances of the immediate case, Mr. Vitale has been charged with an offence he personally did not commit, and his appeal should be allowed either as an error of law or as an error of mixed fact and law.

[74] I shall allow the appeal on terms that he must use the building on his property only for three dwelling units.

[75] Pursuant to s. 25 (4) of the Building Code Act, on an appeal, a judge may, among other things, rescind the Order to Comply and take any other action that the judge considers the chief building official 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 chief building official or inspector.

[76] The property use and property standards provisions of the Building Code Act are public health and welfare legislation, and such legislation is to be accorded a broad and liberal interpretation that is consistent with its purpose, and narrow interpretations that would frustrate the legislature’s public welfare objectives are to be avoided. R. v. Schmidt, 2014 ONCA 188; Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75 at paras. 24-25; Liquor Control Board of Ontario v. Magnotta Winery Corp. (2009), 2009 ONCA 685, 99 O.R. (3d) 215 at para. 44; (C.A.); Ontario (Ministry of Labour) v. Hamilton (City) (2002), 58 O.R. (3d) 37 at para. 16 (C.A.).

F. Conclusion

[77] For the above reasons the application is granted on terms that Mr. Vitale must use the building on his property only for three dwelling units.

[78] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Mr. Vitale’s submissions within twenty days from the release of these Reasons for Decision followed by the City’s submissions within a further twenty days.

[79] I advise the parties that I am presently inclined to make no Order as to costs. While Mr. Vitale was successful, the fact remains that he unnecessarily maligned the City and that both parties made mistakes and miscommunications.

Perell, J. Released: October 6, 2023