Court File and Parties

COURT FILE NO.: CV-22-00688721-0000 DATE: 20231109

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: In writing

PERELL, J.

Reasons for Decision – Costs

[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 of Toronto prosecuted Mr. Vitale under the Building Code Act, 1992 for not complying with its Order to Comply to revert a five-unit dwelling into a three-unit dwelling. He brought an application to have the City’s Order rescinded.

[3] Although Mr. Vitale’s application was out of time, I exercised the court’s discretion under the Building Code Act to grant an extension of the time to appeal, and I granted his appeal on terms. Vitale v. Toronto (City of), 2023 ONSC 5649.

[4] I concluded that Mr. Vitale had been very fairly and reasonably treated by the City of Toronto; however, there was a fatal flaw in the City’s Order to Comply. The City relied on s. 10 (1) of the Building Code Act, 1992, but that provision was not legally appropriate for the unusual circumstances of the case. Therefore, Mr. Vitale’s application was granted on terms that he must use the building on his property only for three dwelling units.

[5] I directed that if the parties could not agree about the matter of costs, they may make submissions in writing beginning with Mr. Vitale’s submissions followed by the City’s submissions.

[6] I advised the parties that I was 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 in their dealings with one another.

[7] The parties could not agree about costs. Mr. Vitale claimed $10,000, all inclusive and the City’s position was that each party should bear their own costs.

[8] I agree with the City’s position.

[9] Although Mr. Vitale was notionally the successful party, it was a technical victory. Although the City’s Order to Comply was struck down, I imposed terms that satisfied the City’s legitimate Building Code concerns. I could have reached the same result by dismissing the application imposing the same terms, in which case, the City would have been the technical winner. This is a case in which the appropriate Order is no order as to costs.

Perell, J. Released: November 9, 2023.