Tek Holdings Limited v. Chief Building Official of the Corporation of the County of Lambton

Citation: 2025 ONSC 5006

Court File No.: CV-24-71

Date: September 2, 2025

Superior Court of Justice - Ontario

Parties

Re: Tek Holdings Limited, Appellant

And: Chief Building Official of the Corporation of the County of Lambton, The Corporation of the County of Lambton and The Corporation of the Township of Plympton-Wyoming, Respondents

Before: Justice R. Raikes

Counsel:

• Jacob Damstra and Matthew McGuckin, Counsel for the Appellant
• Jonathan de Vries, Counsel for the Respondents

Heard: February 28, 2025

Endorsement

Introduction

[1] On April 24, 2024, the Chief Building Official for the County of Lambton served the Appellant with an Order to Comply with an amended building permit issued July 7, 2023; specifically, the Appellant was ordered to construct a cover for a manure storage facility built by the Appellant for two broiler chicken barns constructed at the same time.

[2] The Appellant appeals from that Order and asks that it be rescinded.

[3] The Appellant contends that:

a. the Order to Comply is inconsistent with the purpose and objectives of the Building Code Act, 1992 (hereafter "BCA");

b. the Chief Building Official failed to consider relevant facts including the absence of any health or safety concerns, and the impact on the Appellant;

c. the Chief Building Official fettered her discretion when issuing the Order to Comply; and/or

d. the final approval given by the building inspector, Mr. Kerrigan, effectively precludes the order made by the Chief Building Officer.

[4] For reasons that follow, the appeal is dismissed.

Facts

i. The Parties

[5] The Applicant, Tek Holdings Limited (hereafter "Tek"), is the owner of the lands municipally known as 3919 Aberarder Line in the Town of Plympton-Wyoming (hereafter "the Property").

[6] The Town of Plympton-Wyoming is a lower tier municipality within the County of Lambton. Building Code enforcement services are provided to the Town by the County of Lambton pursuant to a long-standing agreement. That agreement was in effect at all material times.

ii. New Broiler Facility

[7] Tek is part of a group of family farming businesses operated by the Saul family.

[8] In 2022, they operated broiler (poultry) barns on another property in the Township of Plympton-Wyoming. They decided to expand their poultry business and considered building new barns on other properties owned by them including the Property.

[9] In November 2022, Tek engaged MR Engineering & Design Limited (hereafter "MR") to assist with design of the proposed facility on the Property. The drawings received from MR showed, inter alia, the proposed size and location of the twinned facility and manure storage basins, the approximate property boundaries, the Town's set back limit from Lakeshore Road, and the MDS setback from adjacent residences on Lakeshore Road in relation to the proposed location of the facility. The MDS setbacks in the concept drawings were generated from an MDS application submitted to Ontario Agrisuite the same day.

[10] The application contemplated an uncovered manure storage. Tek submitted the concept drawings as part of its site plan approval and building permit applications to the County of Lambton's Building Services Department the same day.

[11] On January 12, 2023, MR provided Mr. Saul with the engineering drawings for the building permit application. Those drawings were subsequently submitted as part of the building permit application package. Those drawings showed an uncovered manure storage for the project.

[12] MR submitted a building permit application in mid-January 2023. The package submitted included MDS calculations and a completed building permit application. The application was submitted by Saul Farms as it owned the Property at the time. It was contemplated that title would be transferred to Tek after construction.

[13] In late January 2023, Mr. Saul received what he understood to be verbal site plan approval from Ms. Baldwin, former senior planner for the Township for the proposed project.

[14] Based on the email and verbal advice received from the County and the Township staff, Saul Farms tendered the project to two contractors who were involved in their previous facility. They received quotes in March 2023.

[15] Between April 11 and 14, 2023, Saul Farms received two emails from Ms. Coles of the County of Lambton indicating initially that the building permit would be ready for pickup by the end of the week, and then that the permit package was ready for pick up. The emails outlined the amounts payable for the building fee and development charges.

[16] On April 17, 2023, a representative of Saul Farms attended the County offices in Wyoming to pick up the building permit and paid the required fees.

[17] On April 26, 2023, Ms. Nauta, the Chief Building Official for the County emailed. She confirmed that there would be no encroachment on MDS required setbacks.

iii. Site Work

[18] Site work began in May 2023. This included stripping topsoil, hauling and placement of aggregate, removal of existing access from Lakeshore Road and construction of a new access. It also included installation of new drainage infrastructure.

[19] In that same timeframe, Tek paid a deposit for equipment and components for the broiler barn.

[20] On May 23, 2023, Mr. Saul received a telephone call from Ms. Baldwin of the Township. She advised that an anonymous caller had contacted the Planning Department to raise an issue with the calculations of the MDS setback; specifically, that the MDS setback requirements were greater than that previously calculated because the neighbouring residences were Type B, not Type A.

[21] Meetings followed. According to the affidavit filed by Mr. Saul on this application, the Planning Department acknowledged their mistake as well as the considerable expense already incurred by Saul Farms for the project in relying upon the approvals already received.

[22] During the meetings, Ms. Baldwin of the Planning Department suggested a Minor Variance Application to rectify the error. Ms. Baldwin indicated that she would prepare the application at no cost to Saul Farms.

[23] On May 31, 2023, a meeting took place at which Ms. Nauta was also present. The purpose of the meeting was to discuss the Minor Variance Application process and potential alternate sites for the facility both on the Property and other properties in the County.

[24] Mr. Saul deposes that they discussed the costs already incurred and those that would be incurred if the project needed to be moved. Based on those discussions, Mr. Saul believed that the Township and County representatives "understood my expectation that they would cover any additional costs incurred arising from the Planning Department's admitted error… and outlined the process I needed to undertake to have these costs covered."

[25] Ms. Nauta acknowledges that she was present for the May 31 meeting but deposes that she is unaware of any verbal or written agreement or representation by Lambton or Plympton–Wyoming that they would pay for the additional costs that Saul Farms/Tek already had or would incur due to the MDS calculation error.

[26] Mr. Saul deposes that he made it clear during the meetings that Saul Farms did not need, nor did they request, a Minor Variance Application – they had an unconditional building permit for the project. When a minor variance application was presented as the only way forward from a cost and expediency perspective, he reluctantly agreed to proceed with the application on condition that there was a formal admission of the Planning Department's error in any public notices.

[27] Ms. Nauta takes issue with the assertion by Mr. Saul that Saul Farms did not need nor request a minor variance application because it already had an unconditional building permit for the project. She contends that she had the authority under section 8(10)(d) of the Building Code Act, 1992 to revoke the original issued building permit because of the MDS calculation error. She further asserts that she had the right to issue an order to comply or a stop work order to prevent further construction if Saul Farms had not voluntarily proceeded with its application for a minor variance.

[28] Regardless, she did not make such an order, and the Minor Variance Application proceeded.

iv. Minor Variance Application

[29] On May 29, 2023, the Township posted a Notice of Public Hearing for the Minor Variance Application. The notice indicated that the process was initiated to correct an error made by the Planning Department.

[30] The Committee of Adjustment met to consider the application on June 13, 2023. During his opening remarks, Mr. Melanson acknowledged that the error was the fault of the Planning Department and stressed that Saul Farms had followed the proper procedure to obtain the existing building permit and was working with the County and Township in good faith to rectify the error.

[31] During his representations, Mr. Saul indicated to the Committee that but for the approvals given, the Property would not have been chosen for the project and Saul Farms would not have incurred the costs it had. He further indicated that the County and/or Township would be responsible for the additional costs incurred flowing from the Planning Department's publicly admitted error.

[32] At the conclusion of the hearing, the Committee of Adjustment granted the minor variance. In their reasons, the Committee indicated, inter alia:

• Plympton-Wyoming was an agricultural community and had an obligation to respect and support agriculture.
• A barn could be placed anywhere on the property, but the proposed location did not have any greater impact (visibility, odours, noise, dust, etc.) than a location which would conform with the MDS requirements.
• Broiler poultry manure is not as odorous as other livestock manure.
• Saul Farms acted in good faith when selecting the proposed location for the project, applied for the original permit, and had tried to meet the intent and purpose of the zoning bylaw. And
• The proposed location of the project would not be located directly across from the apartments on Lakeshore Road.

[33] Prior to the hearing, two members of the Committee attended another broiler operation on a different property. They indicated during the hearing that they were unable to smell any odour emanating from the broiler manure pile despite being 10 feet away from it.

[34] The Minor Variance decision imposed two conditions on the building permit in tandem with the decision to approve the application. The first condition was that the variance exclusively applied to broiler chickens. The second, which is the subject of the ongoing dispute, was that manure storage would be consolidated into a single structure and be covered rather than uncovered.

[35] According to Ms. Nauta, she was unaware of any commitment during or before the hearing that the Respondents would pay for any additional costs that Saul Farms had or would incur as a result of the MDS calculation error. She further deposes that the requirement that the manure storage facility be covered was imposed by the Committee; it was not a condition recommended by the County of Lambton building department.

[36] No appeal was taken from the decision of the Committee of Adjustment.

v. Construction of the Project

[37] After the minor variance decision, MR submitted amended drawings to the Building Department for the covered manure storage. Saul Farms obtained a revised quote for the project to reflect this change. Because of delay in construction, the cost of the project increased significantly. According to Mr. Saul, the direct costs were greater by approximately $148,642 not including related and ancillary costs.

[38] As a result of the Committee of Adjustment decision, the existing permit was revised on July 7, 2023 to indicate that the construction permitted now included a "+ 5000 sqft covered manure storage".

[39] On July 6, 2023, Ms. Nauta requested revised drawings be submitted to reflect the condition that the manure storage facility be covered. She received revised drawings for the covered manure storage the same day.

[40] As construction of the project proceeded, Mr. Saul had discussions with the Township and County to discuss contribution to the additional costs incurred on the project because of the "MDS calculation error" and "Building Department's building issuance error". Mr. Saul submitted a claim with respect to the costs incurred.

[41] Mr. Saul deposes at paragraph 62 of his July 12, 2024 affidavit that:

62. Despite my good faith efforts to follow the County and Township's claim process, as well as representations that my claim was being "worked on", there was a minimal response or traction on having the additional costs covered. As stated in my email from September 19, 2023, I remained ready, willing and able to construct a covered manure storage facility on the Aberarder Line property but needed a commitment from the County and the Township regarding their respective contributions towards these costs.

[42] No such commitment has been given since he submitted the claim; in fact, Tek has commenced a separate civil action for damages as a result.

[43] When the County and Township did not provide the required commitment and/or pay, Saul Farms proceeded with construction of the project consistent with the original building permit – an uncovered manure storage. That is what is in place presently.

[44] Between December 15 and 18, 2023, the newly constructed barn on the property was inspected by a building inspector, Mr. Kerrigan. He passed the facility, and no infractions were noted in his report.

[45] Following that inspection, Saul Farms/Tek proceeded to use both the broiler barn and manure storage as constructed.

[46] Ms. Nauta disputes that construction of the uncovered manure storage facility was "passed" or otherwise approved by the County of Lambton. She notes that the documents relied upon by Tek from that inspection make no reference to the manure storage facility and no statement that the manure storage facility had been properly constructed in accordance with the permit.

[47] It is undisputed that the County of Lambton did not alter the terms of the amended building permit or waive the express condition that the manure storage facility be covered.

[48] In late March 2024, the County of Lambton received complaints from unnamed members of the public that the manure storage facility was in use but uncovered. On March 25, 2024, Ms. Nauta attended the site and took a photograph of the uncovered manure storage.

[49] On April 2, 2024, Ms. Nauta wrote to Mr. Saul:

Can you please advise when the required covered storage building will be complete?

The uncovered structure is being utilized which is not in compliance for use, which is a problem and shall be rectified immediately.

We look forward to hearing from you, by way of reply email no later than Wednesday, April 3, 2024, 4:30 pm regarding this matter.

[50] The only response received was a letter from a lawyer for Tek indicating that all future correspondence be directed to him.

Order to Comply Issued

[51] On April 24, 2024, Tek was served with an Order to Comply issued by Ms. Nauta, the Chief Building Official for the County of Lambton. The Order to Comply indicated that the building had not been completed "pursuant to the approval" and that the manure storage was uncovered contrary to the revised building permit issued. Tek was directed to finish construction of the covered manure storage.

[52] On April 29, 2024, Ms. Nauta wrote to Tek's counsel:

As a reminder - you have been previously advised, any discussion of claims for compensation are to be conducted via legal counsel appointed for the County in this matter and will not be discussed in the context of Mr. Saul's obligation under the order to comply.

[53] At paragraph 69 of his affidavit, Mr. Saul deposes:

69. Saul Farms and Tek Holdings have been, and remain, ready, willing and able to construct a covered manure storage for the broiler facility on Aberarder Line. We have had MR Engineering prepare drawings for the covered manure facility. We have had McCann and Vanderlann provide quotes for the work. …

[54] Further, at para. 71, he deposes:

71. …As soon as there is a commitment from both parties to cover the additional costs of a covered manure storage, it will be constructed as quickly as our contractors can facilitate.

Law and Analysis

[55] Tek appeals from the Order to Comply under s. 25 of the BCA. That section states:

25(1) A person who considers themselves 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.

(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.

[56] The applicable standard of review on appeal is palpable and overriding error for questions of fact or mixed fact and law, and correctness for extricable questions of law: 1672736 Ontario Inc. v. Savini, 2022 ONSC 6177, at paras. 41-42; 1000758840 Ontario Ltd. v. The City of Toronto, 2024 ONSC 1835, at para. 23; Township of Dawn-Euphemia v. Sen, 2024 ONSC 2738, at para. 27.

[57] The Order to Comply was issued pursuant to s. 12(2) of the BCA which states:

12(2) An inspector who finds a contravention of this Act or the building code may make an order directing compliance with this Act or the building code and may require the order to be carried out immediately or within such time as is specified in the order.

[58] Section 8 of the BCA states:

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.

(11) No person shall construct of demolish a building or cause the building to be constructed or demolished except in accordance with this Act and the building code.

(13) No person shall construct or demolish a building or cause a building to be constructed or demolished except in accordance with the plans, specifications, documents and any other information on the basis of which a permit was issued or any changes to them authorized by the chief building official.

Correctness and Reasonableness of Order Made

[59] I preface this portion of the analysis with the following:

1. The requirement for a covered manure storage was directed by the Committee of Adjustment after a public hearing as a term of minor variance approval. That requirement was imported into the revised building permit.

2. The Appellant submitted construction design documents for a covered manure storage after the Minor Variance decision and before the revised building permit was issued.

3. The revised building permit specifies construction of a covered manure storage. It does not provide that it is to be covered only if the Township and/or County contribute to its cost of construction.

4. The issued revised building permit was not subsequently changed to remove the requirement for a covered manure storage.

5. The evidence of Mr. Saul is clear that Tek is "ready, willing and able" to construct the cover for the manure storage. It has not done so because it has not received satisfactory commitments from the Respondents to reimburse their losses incurred to date and the expense that would arise from constructing the cover.

6. There is a separate civil action where the Appellant seeks recovery of those losses and that expense based on the alleged promises/representations made.

[60] The Appellant submits that the subject Order to Comply is erroneous and unreasonable in the circumstances herein because:

a. there is no evidence of health, safety or structural concerns relating to the facility;

b. although Ms. Nauta referred to complaints from members of the public, no corroboration of same has been provided;

c. the Order to Comply forces the Tek to incur costs which "by the Respondents' own undertakings" are not Tek's to bear;

d. Ms. Nauta gave no consideration or weight to the Lambton and Plympton-Wyoming Official Plans where primacy is afforded to agricultural activities. The Order to Comply undermines those objectives;

e. the Order to Comply fails to have due regard to the discretionary nature of s. 12(2) of the BCA in the circumstances present here. Ms. Nauta ignored the commitments/representations made to Saul Farms when she issued the Order to Comply and thereby fettered her discretion;

f. the Order to Comply was issued for a purpose unrelated to the objectives of the BCA; and

g. Ms. Nauta disregarded relevant factors before issuing the Order to Comply which is a reviewable error.

[61] I do not agree that Ms. Nauta acted unreasonably, failed to give consideration to the purposes and objectives of the BCA, issued the Order to Comply for a purpose unrelated to the objectives of the Act or fettered her discretion as alleged.

[62] Ms. Nauta was clear in her communications with Saul Farms/Tek and its counsel that the revised building permit issued to Saul Farms/Tek required a covered manure storage and the Appellant had not complied with that requirement. The plans submitted by Saul Farms after the public hearing included the design for a covered manure storage. The revised building permit was issued on the basis of those plans. Pursuant to s. 8(13) of the BCA, Saul Farms/Tek were not at liberty to build the structure to which that permit applied except in accordance with the plans submitted.

[63] The Appellant ignored the terms of the revised building permit and the plans submitted for same. It reverted to the planned uncovered manure storage facility without notice to or prior approval for same by the Respondents. The revised building permit was clear and unequivocal. Instead, the Appellant built a structure fundamentally different than that permitted by the revised building permit issued.

[64] As Chief Building Official, Ms. Nauta was tasked with responsibility to ensure compliance with the BCA. She observed first-hand a material violation and issued an Order to Comply.

[65] The BCA balances the interests of society with the interests of property owners: Gordon v. North Grenville (Municipality), 2011 ONSC 2222 (Div. Ct.), at para. 16.

[66] The Chief Building Official is statutorily responsible for compliance with the Building Code and the BCA. Enforcement of compliance through an order to comply ensures and promotes the objectives of the BCA – public health, safety, and structural integrity: Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, at para. 23. Requiring compliance with the building permit is consistent with the purpose of the BCA, promotes its objectives, and was entirely within her authority under the legislation.

[67] The Appellant argues that Ms. Nauta was required to show that the structure constructed posed a health or safety risk as constructed, and/or explain how her order to comply furthers the objectives of the legislation. I disagree.

[68] In this case, the property owner (Tek) deliberately chose to build the structure in a manner inconsistent with the plans submitted and the permit issued. It was obviously and deliberately off-side the building permit requirement for a covered manure storage. Her communications with the Appellant point out the non-compliant structure. Enforcing compliance in these circumstances was consistent with the objectives of the Act, its purpose, and her authority. She did not have to demonstrate noxious odours, for example. It sufficed to alert the Appellant to its failure to adhere to the building permit.

[69] Further, the evidence of the Appellant shows that the Appellant knew at all material times that it was required to build a covered manure storage facility. It submitted plans to do so. It appears to have acted to force the Respondents to commit to or honour what it believed to be binding promises/representations to make the Appellant whole from the error made by the planning department.

[70] I note first that Ms. Nauta has deposed no awareness of any commitments made to the Appellant. Further, she has no authority under the Act to compel the Respondents to honour the alleged commitments asserted by Mr. Saul, nor is she required to defer the exercise of her discretion until that issue is sorted out by the parties or the courts. Whether the Appellant is entitled to be reimbursed by the Respondents or any of them will be determined in the civil action. The issue confronting Ms. Nauta was whether the manure storage as constructed complied with the building permit issued. It did not.

[71] Second, even if the Appellant felt the Respondents were resiling from their commitments, that did not entitle the Appellant to disregard the revised building permit. More to the point, it did not entitle Ms. Nauta to ignore her statutory responsibilities nor to consider same in the exercise of her discretion under s. 12(2).

[72] The Appellant, by its posture and response to her communications, clearly evinced an intention not to remedy the non-compliance. Faced with those circumstances, she issued the Order to Comply.

[73] The Appellant's submission that the Order to Comply is inconsistent with the Official Plans and signals a chilling effect on agricultural development/activity is an in terrorem argument that is entirely misplaced. The Appellant's proposed agricultural business at that location was approved by the Committee of Adjustment with a covered manure storage. The decision was silent as to any reimbursement for expenses. The Appellant could have but did not appeal that decision to require a covered manure storage. Instead, it proceeded with revised plans consistent with that approval. The Order to Comply does not undermine the objectives of Official Plans. The minor variance granted and the revised building permit consistent with same are supportive of agricultural business development.

[74] I conclude that:

1. The Appellant knowingly disregarded the revised building permit and constructed an uncovered manure storage.

2. The Appellant has been ready, willing, and able to construct the cover for the storage but has chosen not to do so.

3. The uncovered manure storage does not comply with the plans submitted on which the revised building permit was predicated.

4. The uncovered manure storage does not comply with the revised building permit issued.

5. The chief building official observed that significant non-compliance and attempted to address same with the Appellant only to be directed to deal with its legal counsel.

6. The chief building official exercised her discretion under s. 12(2) reasonably having regard to the nature of the non-compliance.

7. The chief building official was entitled to issue the Order to Comply pursuant to s. 12(2) given the breach by the Appellant under s. 8(13).

8. There is no palpable or overriding error by the chief building official in this case.

9. There is no error of law.

10. The Order to Comply issued by Ms. Nauta was reasonable in all the circumstances.

Effect of Kerrigan Inspection Reports

[75] There is one further issue to address: namely, the effect of the inspection approvals by Mr. Kerrigan, a building inspector employed by the County.

[76] On December 11, 2023, MR submitted an engineer's report that the project had reached 'final completion'. Tyler Regier of MR did an inspection on December 11, 2023 (see B-1-49). The form completed and signed by Mr. Regier refers to grading, protection of foundations from frost, metal cladding, fans installed, interior finishes, and vents and doors for the generator room. It is silent as to the manure storage and the cover contemplated by the revised permit.

[77] On December 18, 2023, Mr. Kerrigan completed two forms: 1) plumbing final (A-236), and 2) inspector's report (A-237).

[78] The plumbing final indicates that visits occurred on December 14 and 15, 2023 by Mr. Kerrigan. The result was "Passed (Substantially complete)". No deficiencies or remarks were noted. There is no reference to the manure storage and there is nothing before me to indicate that the plumbing report dealt with the manure storage or its cover (or lack thereof).

[79] For the Inspector's Report, there is simply a note: "Final Granted". There is a space where infractions can be listed, and compliance ordered but that line is left blank.

[80] The Appellant submits that Mr. Kerrigan's two inspection reports are final and amount to approval of the structures as constructed. The building permit is spent. The Appellant is entitled to rely upon that approval. The Chief Building Official cannot override that inspection approval.

[81] The Respondents submit that the reports do not on their face address the manure storage facility. They cannot be relied upon by the Appellant who was well-aware that the manure storage lacked the required cover. Ms. Nauta, as Chief Building Official, was entitled to issue the Order to Comply under s. 12(2) of the BCA despite the inspection reports of Mr. Kerrigan.

[82] The Appellant relies on the decision in Whiteley v. Shuniah (Municipality). In that case, Mr. Whitely appealed an order to comply and stop work order issued by the municipality's chief building official on January 15, 2007 related to the construction of a boathouse. Mr. Whiteley wanted to build a two-story boathouse on Loon Lake to replace a smaller, less convenient boathouse on the property. Like the case before me, he had to apply for a minor variance to accommodate the front yard set-back and size of the boathouse. The minor variance was granted on several conditions including that the boathouse not exceed 14' in height from ground level.

[83] Because of sloping ground, the critical issue was what constituted 14' from ground level. A building permit was issued consistent with the minor variance condition. Plans were submitted. Construction started. Complaints were made by neighbours and the chief building official intervened to require changes including to the roof.

[84] Pierce J. at para. 48 noted that three chief building officials measured the height in different ways. She found that Mr. Whiteley acted in good faith. He applied for the building permits in advance of building. He stopped work when required. She found that the dispute centered on the way the height of the building was measured and the characterization of the foundation.

[85] At paras. 66 and 67, Justice Pierce wrote:

[66] The evidence on the appeal is that chief building official Stewart inspected construction relative to permit #3628 on July 19, 1996 and noted the foundation was level and the framing was acceptable. He noted that the next inspection required was the roof when the permit was issued. At the appellant's request, Mr. Stewart signed off building permit #3628 by noting "complete" on the face of it.

[67] Having signed off on the permit, the permit is spent. It is not reasonable for Mr. Stewart's successor to revoke the building permit based on his different opinion as to compliance with it. Nor is it reasonable for Mr. Cooke to issue an order to comply when his predecessor has signified compliance by approving the work. Were it otherwise, the builder would have no assurance of finality once the work authorized by the building permit was approved. In legal terms this is known as res judicata. The law recognizes the value of certainty that is created when an issue is finally determined. It does not permit the same parties to revisit the same issue once it has been determined, absent an appeal. [Italics added.]

[86] In my view, the facts in Whiteley are materially distinguishable from the case before me. First, the work done here completely omits a material requirement of the building permit issued – a cover for the manure storage. The approvals by Mr. Kerrigan do not refer to the manure storage nor the cover for same.

[87] By contrast, in Whiteley, the appellant specifically sought and obtained approval for the foundation and framing. Mr. Whiteley obtained what was in effect a ruling from the previous chief building official that what he had constructed complied with the building permit. This is not a case where the Appellant constructed a cover in accordance with plans submitted and asked the Respondents to approve what they installed.

[88] Second, Mr. Whiteley actually constructed the boathouse in conformity with the plans he submitted. The manure storage constructed by the Appellant does not accord with the plans submitted to obtain the revised building permit.

[89] Third, the court found that Mr. Whiteley acted in good faith throughout his lengthy dealings with the municipality. I am troubled by the implicit suggestion in the request from MR for the inspection that the building was ready for final inspection when clearly the cover had not been constructed and would not be constructed unless and until the Respondents satisfied Mr. Saul as to contribution to expenses.

[90] I am also troubled that neither Mr. Saul nor MR alerted the Respondents of the intention to revert to an uncovered manure storage at any time before the inspection by Mr. Kerrigan. There is no evidence that the municipality ever agreed to delete or waive the cover requirement. I find that in these circumstances, there was no conscious intention by the Respondent's to approve an uncovered manure storage, nor did it do so.

[91] I am satisfied that Ms. Nauta acted within the scope of her authority under the Act when she issued the Order to Comply. The inspections by Mr. Kerrigan do not prevent the chief building inspector from enforcement of compliance with the revised building permit in these unique circumstances.

[92] Whether the municipality is liable to the Appellant for additional costs incurred as a consequence of the error made by the planning department that resulted in the minor variance application etc. is beyond the scope of this decision and is best addressed fully in the civil action commenced.

[93] The Respondents raised an issue with respect to whether the Township was a proper party to this appeal. Given my findings above, it is unnecessary to address that issue.

Disposition

[94] For the above reasons, the appeal is dismissed. The Appellant shall comply with the Order to Comply within 60 days hereof or such other period as the parties may mutually agree upon in writing.

[95] If the parties cannot agree on the issue of costs, they may make written submissions not exceeding 4 pages within 15 days hereof.

Justice R. Raikes

Date: September 2, 2025