COURT FILE NO.: CV-23-213 DATE: 2024/05/13
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: THE CORPORATION OF THE TOWNSHIP OF DAWN-EUPHEMIA, Applicant — and — SATHI SEN and ANIMESH SEN, Respondents
BEFORE: Justice M.A. Cook
COUNSEL: R. Beauchamp, Counsel for the Applicant Sathi Sen for Self
HEARD: January 11, 2024
Endorsement
[1] The Corporation of the Township of Dawn-Euphemia (the “Municipality”) seeks orders pursuant to sections 15.7(8) and 15.7(10) of the Building Code Act, 1992, SO 1992, c 23, as amended (the “BCA”):
a. confirming an emergency order made November 3, 2023, by the Municipality under subsection 15.7(1) of the BCA; and,
b. confirming that the $30,652.86 spent on measures to terminate the danger is recoverable as a lien on the land.
[2] The self-represented respondents oppose the relief sought on the grounds that the Municipality acted unreasonably and failed to provide them with any opportunity to respond.
Facts
[3] The respondents own real property at 595 Florence Rd, Florence, Ontario, legally described as PLAN 2 LOT 13 LOT 14 LOT 27 TO LOT 29 PT LOT 25 (the “Property”). The only building on the Property was a two-storey institutional building that was formerly used as a school. The building was vacant for many years, and fell into disrepair.
[4] On or about November 3, 2023, the Municipality received information that one of the brick walls of the building on the Property had partly collapsed.
[5] At approximately 9:45 a.m. on November 3, 2023, the clerk of the Municipality emailed the respondents to advise that the Municipality had concerns about the stability and safety of the building on the Property. The clerk advised the respondents that the Municipality was likely to make property standards orders against them.
[6] Jesse Soetemans is a property standards officer appointed by the Municipality to enforce the BCA (the “PSO”). At approximately 11:00 a.m. on November 3, 2023, the PSO inspected the Property and noted severe structural damage to the roof and wall assemblies of the building. He determined that lateral support of the building was severely compromised. In his affidavit, Mr. Soetemans states that the building’s structure was failing; he determined at the time of his inspection that “demolition of the Building was required.”
[7] The PSO arranged for the Municipality’s Public Works Department to install perimeter fencing around the Property to secure it. According to the PSO, the perimeter fencing was in place by approximately 1:30 p.m. on November 3, 2023.
[8] The PSO then contacted the office of Robert E. Dale, a professional engineering firm, to complete a structural review of the building.
[9] At approximately 2:15 p.m. on November 3, 2023, one or more members of the Robert E. Dale engineering firm conducted an inspection of the Property and provided a verbal opinion to the PSO that the wall assembly of the building had minimal structural load bearing capability and was unsafe.
[10] Some time in the afternoon of November 3, 2023, the PSO spoke to the respondent, Aminesh Sen, and advised him that the Municipality was going to demolish the building forthwith at the respondents’ expense.
[11] Mr. Sen emailed the clerk of the Municipality at 3:34 p.m. on November 3, 2023, expressing surprise at the process unfolding. Mr. Sen wrote:
You will understand my shock on a Friday afternoon to be advised by you that there is an issue and within an hour be told that the building is coming down with immediate effect with no possibility for me to assess the situation compare costs or take a decision.
[12] A brief time later, Mr. Sen emailed the PSO at 4:40 p.m. on November 3, 2023, asking for an opportunity to assess the situation. Mr. Sen wrote:
Jesse ref telecon today ie Friday Nov 3rd afternoon wherein you informed me that the property at 595 Florence Road was structurally unsafe and had to be demolished with immediate effect as an emergency. I was just informed a few hours ago that there might be an issue and have not had time to assess the situation or understand the financial impact or minimize it. I would like the opportunity to understand the legal and financial implications. It is architecturally and historically important building in the community and is there any possibility of making it structurally safe pending restoration.?
[13] On the afternoon of November 3, 2023, the PSO and the chief building official for the County of Lambton, Corrine Nauta (the “CBO”), signed an emergency order (the “Emergency Order”) requiring demolition of the unsafe portions of the building forthwith. The Emergency Order states:
Based on the current investigation, proximity to a neighbouring property and observations made by a P. Engineer, it was advised that the upper wall assembly of the structure be removed/demolished forthwith. To mitigate imminent risk of collapse on nearby persons or structures, this Emergency Order is issued, and additional measures have been put in place to restrict access to the property.
[14] The Emergency Order set out the remedial actions required of the respondents as follows:
EMERGENCY ACTION REQUIRED
- No occupancy of the building is permitted for any reason.
- Construction fencing has been put in place to further restrict access to the building.
- All areas of the building that are deemed to be unsafe are to be demolished to mitigate risk to persons.
[15] The Emergency Order was sent to the respondents by email at approximately 6:15 p.m. on November 3, 2023, and posted on the building at the Property.
[16] Between 8:00 p.m. on November 3, 2023, and 10:30 a.m. on November 4, 2023, the Municipality demolished the building and began clearing debris from the Property.
[17] On November 9, 2023, the Robert E. Dale firm delivered an engineering report providing its opinions about the condition of the building (the “Engineering Report”). That report was signed by R. Geoffrey Dale and stamped by professional engineer Robert E. Dale. It is not clear from the report who actually conducted the inspection of the Property and authored the report. The Engineering Report states:
A general review of the structure indicated large holes or openings present in the exterior wall assembly, and partial or full collapse present with the roof or floor structure of the building, resulting in a two storey cantilevered masonry wall condition at the time of this report. This has resulted in the wall assembly having minimal structural load carrying capabilities in its weakened condition. It is the professional opinion of this Office that the present state of the wall assembly is unsafe, and could result, under the right conditions, in a full or partial collapse of any portion of this structure.
We note that a residential garage structure is present approximately 25’ from the existing wall structure, and that any failure or collapse of the wall structure along this face of wall may result in significant damage, collapse, or similar to the adjacent garage structure.
As such, this Office recommends that, at minimum, the upper wall assembly (second storey portion at minimum be removed or demolished at the earliest possible time.
[18] On November 9, 2023, the Municipality issued an amended Emergency Order requiring additional emergency action at the Property. The November 9 amended Emergency Order states that “a lockdown procedure for the site is being implemented to prevent any risk to any nearby persons for any possible Designated Substances”. No particulars of that lockdown procedure, nor of the designated substances of concern to the Municipality are set out in the amended Emergency Order.
[19] On November 9, 2023, the PSO issued an Order to Remedy Violation of Property Standards By-law requiring the respondents to complete all remaining demolition required to clean the Property to a clear, graded and safe condition by not later 12 noon on January 11, 2024. The work required to satisfy the Order to Remedy Violation of Property Standards has been estimated to cost “way over $100,000” in part because the bricks and rubble had been mixed together during demolition.
[20] On November 21, 2023, the Municipality delivered to the respondents a statement setting out the costs of emergency services provided to the Property, in the amount of $30,652.86 consisting of services provided by WinMar in the amount of $23,885.05, the services provided by Dawn-Euphemia Public Works Department and Dawn-Euphemia Fire Department in the amount of $6,449.38 and the services of an environmental consultant in the amount of $318.46.
[21] The respondents did not appeal the Emergency Order, nor have they commenced judicial review proceedings against the Municipality with respect to the decision of the PSO and CBO to demolish the building.
Issues
[22] There are two issues to be determined in this Application:
a. Was the decision of the PSO to issue the Emergency Order reasonable in the circumstances; and
b. Were the costs spent on measures to terminate the danger in the amount of $30,652.86 reasonable and recoverable by the Municipality from the respondents.
Analysis
Statutory Framework
[23] The BCA and the Building Code is carefully crafted legislation which balances the interests of society with the interests of a property owner, with specific responsibility given to designated officials such as the chief building official, a property standards officer, and others: Gordon v. North Grenville (Municipality), 2011 ONSC 2222 (“North Grenville”) at para. 36.
[24] Viewed as a whole, the legislative scheme is intended to promote public safety in a manner that balances the rights of all the parties involved, especially those of property owners: North Grenville, at para. 37.
[25] In this case, the PSO issued the Emergency Order under s. 15.7 of the BCA. That section empowers a property standards officer to make an emergency order if the non-conformity of a property with the property standards by-law is such that the property poses an immediate danger to the health and safety of a person. The relevant portions of s. 15.7 of the BCA read:
15.7 (1) If upon inspection of a property the officer is satisfied that there is non-conformity with the standards in a by-law passed under section 15.1 to such extent as to pose an immediate danger to the health or safety of any person, the officer may make an order containing particulars of the non-conformity and requiring remedial repairs or other work to be carried out immediately to terminate the danger.
Service
(2) The order shall be served on the owner of the property and such other persons affected thereby as the officer determines and a copy shall be posted on the property.
Emergency powers
(3) After making an order under subsection (1), the officer may, either before or after the order is served, take any measures necessary to terminate the danger and, for this purpose, the municipality may, through its employees and agents, at any time enter upon the property in respect of which the order was made without a warrant.
Service
(5) If the order was not served before measures were taken to terminate the danger, the officer shall serve copies of the order in accordance with subsection (2) as soon as practicable after the measures have been taken, and each copy of the order shall have attached to it a statement by the officer describing the measures taken by the municipality and providing details of the amount expended in taking the measures.
Service of statement
(6) If the order was served before the measures were taken, the officer shall serve a copy of the statement mentioned in subsection (5) in accordance with subsection (2) as soon as practicable after the measures have been taken.
Application to court
(7) As soon as practicable after the requirements of subsection (5) or (6) have been complied with, the officer shall apply to a judge of the Superior Court of Justice for an order confirming the order made under subsection (1) and the judge shall hold a hearing for that purpose.
Powers of judge
(8) The judge in disposing of an application under subsection (7) shall,
(a) confirm, modify or rescind the order; and
(b) determine whether the amount spent on measures to terminate the danger may be recovered in whole, in part or not at all.
Order final
(9) The disposition under subsection (8) is final.
Lien
(10) The amount determined by the judge to be recoverable shall be a lien on the land and shall have priority lien status as described in section 1 of the Municipal Act, 2001 or section 3 of the City of Toronto Act, 2006, as the case may be.
[26] The language of s. 15.7(1) mirrors that of s. 15.10(1), which governs powers vested in a chief building office to make emergency orders to remedy unsafe building conditions, in all but two respects. First, an order made under s. 15.7(1) is made by a property standards officer while an order made under s. 15.10(1) is made by the chief building official. Second, the statutory basis for an order made under s. 15.7(1) is non-conformity with the applicable property standards by-law, while an order made under s. 15.10 (1) is based solely on the basis that the building poses an immediate danger to the health or safety of a person.
15.7 (1) If upon inspection of a property the officer is satisfied that there is non-conformity with the standards in a by-law passed under section 15.1 to such extent as to pose an immediate danger to the health or safety of any person, the officer may make an order containing particulars of the non-conformity and requiring remedial repairs or other work to be carried out immediately to terminate the danger.
15.10 (1) If upon inspection of a building an inspector is satisfied that the building poses an immediate danger to the health or safety of any person, the chief building official may make an order containing particulars of the dangerous conditions and requiring remedial repairs or other work to be carried out immediately to terminate the danger.
Standard of Review
[27] 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: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. This means the correctness standard applies to questions of law and the palpable and overriding error standard applies to questions of mixed fact and law: see Housen v. Nikolaisen, 2002 SCC 33; Vavilov at paras. 33 and 37.
[28] Palpable and overriding error is a highly deferential standard of review: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401. “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case.
Reasonableness of the Emergency Order
[29] For the Emergency Order to have been reasonably made under s. 15.7(1) of the BCA, the PSO had to do two things:
a. First, the PSO had to satisfy himself that that the building was in non-conformity with the standards in a by-law passed under section 15.1 of the BCA to such extent as to pose an immediate danger to the health or safety of any person; and
b. Second, the Emergency Order issued had to contain the prescribed particulars of the non-conformity to the property standards by-law and set out the remedial repairs or other work to be carried out to terminate the danger.
[30] I accept the evidence of PSO Soetemans that the Property was in unsafe condition and required timely remedial intervention. However, I find that the Emergency Order was not made in accordance with s. 15.7(1) of the BCA because:
a. There is no evidence about the non-conformity of the Property to a by-law passed under section 15.1 of the BCA. The evidence filed in support of the application does not include a property standards by-law passed under s. 15.1 of the BCA, nor has the PSO provided evidence as to how the Property was non-conforming;
b. The PSO determined at his initial inspection that demolition of the building was required before making any assessment as to whether the building posed an immediate danger to the health or safety of any person;
c. The Emergency Order does not set out any particulars of non-conformity with the applicable property standards by-law; and
d. The Emergency Order fails to provide any notice to the respondents of what they must to do address the immediate danger posed by the building. It simply states that “[a]ll areas of the building that are deemed to be unsafe are to be demolished to mitigate risk to persons,” but it does not state what areas of the building are “deemed to be unsafe.”
[31] The failure of the PSO to identify the non-conformity of the Property to specific property standards set out in a by-law passed under s. 15.1 of the BCA was an error of law going to the foundation of the Emergency Order.
[32] The PSO and the CBO (who also signed the Emergency Order) had several options available to them to address the Municipality’s concerns about the unsafe condition of the building. It was open to the CBO to make orders under ss. 15.9 or 15.10 of the BCA relating to unsafe building condition. But having chosen to exercise powers under s. 15.7(1) of the BCA, the PSO was required to demonstrate how the Property failed to conform with the requirements of the applicable property standards by-law to such an extent that the Property posed an immediate danger to the heath or safety of a person. He has failed to do so.
[33] In the absence evidence of the applicable property standards by-law or of the Property’s non-conformity to it, I find the Municipality’s decision to issue the Emergency Order to be unreasonable, and I am not in a position to confirm it.
[34] The Emergency Order is rescinded.
[35] The Municipality is not entitled to recover costs spent enforcing the Emergency Order.
Procedural Fairness
[36] The lack of notice and opportunity for the respondents to respond to the Emergency Order before their building was demolished warrants mention.
[37] An administrative decision-maker’s compliance with obligations of procedural fairness is a question of law reviewable on a correctness standard: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at para. 169, per Côté J., dissenting on other grounds.
[38] In North Grenville, the Divisional Court held that s. 15.9 of the CBA required the CBO to give an opportunity to a property owner to remediate before prohibiting occupancy of the property. Justice Ratushny wrote at paras. 39-41:
[39] Section 15.9 refers to an opportunity to take remedial steps that I interpret as amounting to the injection of a right for the property owner to “answer” the allegations. On that basis, I cannot interpret “within a reasonable time” in s. 15.9 to refer to anything other than some positive amount of time for that owner.
[40] Further, even in the situation of a building posing an immediate danger to safety, s. 15.10 allows for some remediation, even if “immediate”, as well as allowing the CBO to take “any measures necessary” which measures could, presumably, include an immediate evacuation order. However, the CBO chose not to proceed under s. 15.10. If the interpretation urged by the respondents were correct so that s. 15.9 could also allow for an immediate evacuation order, there would be little reason to have s. 15.10 in the Building Code Act.
[41] This is an issue of notice as well as of an opportunity to remediate and the principles are well reflected in Riopelle v. Montreal (City) (1911), 44 S.C.R. 579 (S.C.C.), at p. 586, a case dealing with a building inspector who had entered onto the appellant’s land after giving a vaguely worded notice in advance and had demolished the owner’s buildings:
As my brother Duff says, ‘this is a case in which form is substance.’ The principle at issue is of the highest importance, affecting the right of property. It would be extremely unwise to establish in this court a precedent which might be invoked by every municipal officer to justify the right to enter upon the property of private citizens and there demolish their buildings on the ground that they are, in his opinion, defectively constructed. The legislature has, in the case of the respondent, thought wise to give the city officials very large powers, it is true, but it has coupled with the exorbitant right conferred a duty to give notice, and that duty must be literally and strictly complied with.
[39] North Grenville and Riopelle suggest that s. 15.7(1) of the BCA, when correctly interpreted, required the Municipality to provide notice to the respondents and afford them an opportunity to respond and remediate, even if the requirement was for immediate action to address a dangerous condition.
[40] An opportunity to remediate can be established by evidence that the property owners failed to comply with to prior orders. For example, in Georgina (Chief Building Official) v. Anagnostopoulos, Justice Di Thomaso confirmed an emergency order made under s. 15.10 of the BCA in circumstances where the subject buildings were demolished within 24 hours of the order having been made. The respondents had been issued seven separate Orders to Remedy Violation of Standards of Maintenance and Occupancy for failing to secure the buildings and structures, and had failed to secure them despite their being in close proximity to several schools.
[41] Similarly, in Sutherland Lofts Inc. v. St. Thomas (City) (2008), 49 M.P.L.R. (4th) 128 (Ont. S.C.), the chief building official determined the building at issue was unsafe. In accordance with s. 15.9 of the BCA, the chief building office made an Order to Remedy Unsafe Building requiring the owner to provide the City with an engineer’s structural report by April 10, 2008 and to complete remedial repairs by May 1, 2008. The owners failed to provide a structural report and did not complete remedial repairs. The chief building official then retained a structural engineer, who opined the building was at risk of collapse. The engineer recommended that the city take precautions to prevent access to the potential collapse zone of 20 meters on all sides of the building. The main street of St. Thomas was closed off to create a zone of safety around the building. On May 27, 2008, the City issued an Emergency Order pursuant to s. 15.10(1) of the BCA, which provided particulars of the dangerous conditions found by the structural engineer and directing that “remedial repairs shall be made to the building to remedy the dangerous conditions or the building shall be demolished”. When the owners applied to stay the Emergency Order, the Municipality was granted authority to demolish the building, albeit subject to its obligations to seek court confirmation of its activities under s. 15.10 (7) and (8) of the BCA.
[42] Here, the respondent property owners had no notice of the Municipality’s concerns about the structural integrity of the building until the morning of November 3, 2023. While the building had apparently been in poor condition for a long time, the Municipality had made no property standards order or order to remedy unsafe building conditions prior to November 3, 2023. The respondents were responsive to both the municipal clerk and the PSO when alerted to the concerns, and sought an opportunity to assess the building and take an informed decision about what to do. The respondents had a significant property interest at stake. The Property had been secured against entry. The building was set back from the property lines. Nevertheless, the building was demolished on the same day without the owners having any opportunity to inspect the Property or respond to the Emergency Order.
[43] The circumstances of this case reflect the concern identified by the Supreme Court of Canada in Riopelle that the power of the Municipality to enter upon property and cause a building to be demolished in the name of public safety must be balanced with a reasonable opportunity to respond. The Municipality’s failure to provide the respondents any opportunity to inspect and remediate the Property prior to demolition was procedurally unfair and constituted an error of law.
Costs
[44] If the parties are not able to resolve the issue of costs, the respondent may make written submissions on entitlement and quantum by May 27, 2024. The applicant may file written submissions in response by June 10, 2024. Submissions will be limited to three pages, double-spaced, plus any bill of costs, copies of any offers, and authorities. There shall be no reply costs submissions absent leave of the court.
Justice M.A. Cook Date: May 13, 2024