Endorsement

Introduction

On July 16, 2024, I granted in part the applicant’s motion to find the respondent in contempt of Cullin J.’s order dated October 07, 2024. I adjourned the penalty phase of the motion to permit the respondent an opportunity to purge the contempt.

After the contempt finding, several case management appearances were required. During that time, the respondent brought a motion to set aside Cullin J’s order, as well as other relief. Oral submissions on that motion as well as the penalty phase of the applicant’s motion were heard together on January 06, 2025. This is my decision on the motions. While there are two named respondents, I refer to them in the singular because Leslie Woodward is clearly the controlling mind of the corporate respondent.

Background

Construction

In April 2021 the respondent obtained a building permit from the applicant and started construction of a residential dwelling on his property at 162 Lee Valley Road, Massey, ON (hereinafter “the property”). On August 03, 2021 the applicant issued an Order to Comply to the respondent pursuant to the Building Code Act, S.O. 1992, c. 23 (hereinafter “the Code”). Unsatisfied with the respondent’s compliance, on August 23, 2021 the applicant issued a Stop Work Order pursuant to the Code.

The applicant visited the property several times over the following months, noting that construction continued despite the Stop Work Order. Letters were sent to the respondent and to his engineer asking that the order be respected. The applicant eventually started an application in August 2022 and brought a motion for an interim injunction.

Interim Motion before Cullin J.

The respondent attended briefly on the first return date of the motion but did not remain until the matter was addressed. The court adjourned the motion to October 07, 2022, and granted the respondent until September 30, 2022, to deliver his responding materials, though none were ultimately ever filed.

The respondent did not appear on October 07, 2022. Cullin J. heard submissions from the applicant and granted the motion with reasons to follow. Those reasons were set out in an endorsement dated October 20, 2022.

In her order Cullin J. restrained the respondent, “their employees, agents, contractors and invitees…from directly or indirectly, performing any construction, demolition or alteration on the property…and from causing, permitting or performing any other acts on that property that require a Building permit.” She also ordered substantial indemnity costs of $6,803.49 which have not been paid.

In her reasons, Cullin J. found that the uncontradicted evidence established the respondent continued construction on the property after the Stop Work Order. She also found the respondent refused to permit the applicant to inspect the construction site. She held the respondent’s conduct was “flagrant and unjustified.”

Applicant’s Motion for Contempt

By way of motion dated November 23, 2023, the applicant sought a finding that the respondent was in contempt of Cullin J’s order. Responding materials were filed and the contempt hearing took place on July 16, 2024.

It was not disputed by the respondent that on May 29, 2024, he completed some construction on the property. This was in response to a LeeMan Engineering report dated May 28, 2024. The report was prepared due to the respondent’s concern about sagging in a canopy protruding from both sides of the dwelling. The report recommended that, among other things, temporary supports be installed for safety reasons.

In the end, I found this to be the only example of contemptuous conduct by the respondent, though others had been pled by the applicant. It was apparent the applicant required as-built drawings approved by an engineer before it would consider lifting the Stop Work Order. I amended Cullin J.’s order on consent to permit the applicant’s engineer access to the property to complete these drawings.

Respondent’s Motion to Set Aside Cullin J.’s Order

By way of motion dated October 25, 2024, the respondent asks that Cullin J.’s order be set aside. In support of this request the respondent filed an affidavit to which he attached as an exhibit a report dated October 22, 2024, from Dahl Engineering. Interim as-built drawings of the same date were also made an exhibit during the hearing of the motion. The parties agreed that this evidence could be applied to both this motion and the remedy phase of the applicant’s contempt motion. The respondent also asks for details of closed session council meetings and recordings of conversations between the building inspector and a third party.

Positions of the Parties

The Applicant

The applicant argues Cullin J.’s order ought not be set aside. They submit there have been material changes to the dwelling since the initial plans were approved, and these have not been reflected in the updated as-built drawings. The following concerns are raised by the applicant:

a. They are unable to determine if sufficient frost protection was put in place under the concrete slab;

b. Beams and posts have been installed in locations not identified in the plans;

c. The roof was completed without authorization and they are unable to determine the materials used, whether strapping was used on the underside as well as the insulation value;

d. There are no details regarding the repairs that will be needed regarding a bowed wall and improper loading; and

e. An energy efficient design summary must be completed.

The applicant also submits they cannot attend on the respondent’s property for inspection purposes because they have been told by the respondent to stay away and they are concerned about the respondent’s threatening behaviour. They are prepared to engage a Registered Code Agency, as permitted by the Code, to conduct necessary inspections, at the respondent’s cost.

While acknowledging the respondent’s efforts to purge his contempt, the applicant asks the court to impose a penalty proportionate to the harm caused. While leaving the decision “in the court’s hands,” the applicant submits jail or a $10,000 fine would be appropriate, together with costs. The applicant argues the penalty needs to send the message to the respondent and the public generally of the need to respect court orders, particularly those concerned with construction pursuant to the Code.

The Respondent

The respondent submits the new as-built drawings and engineering report confirm the construction already completed more than meets the Code’s requirements. He argues Cullin J’s order should be set aside so that construction can resume in accordance with the plans. He notes mortgage remedy proceedings in respect of the property are outstanding. His ability to resolve the mortgage issues has been hampered by his inability to complete the construction.

He further argues, without evidence, the applicant failed to properly attend inspections he paid for as part of the application process. He accordingly asks that the applicant be responsible for the costs of the Registered Code Agency.

The Law

Injunctive Relief

The test for injunctive relief is as set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311 at paras 81-86:

a. The claim is not frivolous and there is a serious issue to be tried;

b. The applicant will suffer irreparable harm if the relief is not granted; and

c. The balance of convenience favours the granting of the injunction.

Irreparable harm and the balance of convenience will generally give way to the public interest when municipalities seek injunctive relief to prevent contravention of the law: Vancouver (City) v. Zhang, 2009 BCSC 84 at para 18.

Penalty Phase of Contempt Motion

Rule 60.11(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out the following remedies available to the court upon a finding of civil contempt:

the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary,

and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.

In Boily v. Carleton Condominium Corp., 2014 ONCA 574 at para 90 the Court of Appeal set out the following factors to be considered in determining the appropriate sentence upon a finding of contempt:

a. The proportionality of the sentence to the wrongdoing;

b. The presence of mitigating factors;

c. The presence of aggravating factors;

d. Deterrence and denunciation;

e. The similarity of sentences in like circumstances; and

f. The reasonableness of a fine or incarceration.

Efforts to purge the contempt are considered at the penalty phase: Business Development Bank of Canada v. Cavalon, 2017 ONCA 663 at para 59.

Analysis

Injunctive Relief

In applying the RJR-MacDonald test, Cullin J. concluded the claim was serious. She noted the respondent’s blatant failure to respect the Order to Comply and the Stop Work Order, including his refusal to permit inspections. She was also concerned about structural deficiencies. She found the respondent’s behaviour fostered irreparable harm in the sense that it made the municipality powerless “to protect their interests by ensuring code-compliant, safe building practices.” While acknowledging the injunction would severely impact the respondent’s interests, she concluded his behaviour tipped the balance of convenience in favour of the applicant.

In my view, there has been a sufficient change in circumstances to warrant setting aside the interim injunction along terms I will order.

Dahl Engineering has been involved in the project since 2021. They recently completed an inspection of the property on July 25, 2024 “to review the building in its current condition and document the existing structural systems.” Writing for the firm, Stephen Dahl provided details of their review together with updated as-built drawings on October 22, 2024. I realize this report was not filed as an expert report in this proceeding. However, I find it is of assistance to me, particularly given Dahl Engineering’s lengthy involvement with the project.

Stephen Dahl notes they also reviewed the issues raised in the Order to Comply and the Stop Work Order in their reports dated July 29, 2021, August 26, 2021, and January 23, 2023. I accept Stephen Dahl’s evidence that the primary concerns have been addressed.

For example, the applicant argues the updated as-built drawings are insufficient for various reasons, including the absence of evidence of frost protection and the location of beams and posts not set out in the original plans. But in a report stamped January 23, 2023, Dahl notes the concrete slab was built according to Code. He found rigid insulation exceeding the Code was installed below the slab. He also notes adequate footing is in place to support a full-length steel beam.

The applicant also submits an energy efficient design summary needs to be completed, and that Dahl has not provided an energy compliance package. However, Stephen Dahl notes the original plans (not drawn by them) as approved by the applicant did not specify an HRV. Dahl recommends a better ventilation solution that would be an improvement to the original plans. I agree that failing to provide the minimal remaining documentation falls far short of a reason to maintain the Stop Work Order and the injunction.

The applicant is also concerned about the dwelling’s roof. They are unable to determine what materials were used, whether it is strapped on the underside and whether there is underlayment for R value. However, Dahl notes the structural systems “as installed to date and/or as outlined on the enclosed plans in terms of beam/joist spans vs. loading exceed the requirements of the Ontario Building Code…” This gives the court comfort that the structure of the roof exceeds the Code. The questions raised by the applicant again fall short of maintaining the Stop Work Order and the injunction. As acknowledged by the applicant in their evidence, Dahl need only make notes about these changes to the original designs.

Finally, I am satisfied the inability of the applicant to inspect the property is resolved. Stephen Dahl provided a Commitment to General Review by Engineer signed by him and the respondent and offered to assist the parties to eliminate the conflict that has persisted. In addition, the parties agree a Registered Code Agency will be retained by the applicant to conduct its statutorily required inspections, though they cannot agree on the costs associated with the Agency.

In my view, the respondent should pay for the costs of these inspections. These proceedings arose partly because of the respondent’s refusal to allow the applicant’s representatives on the property. While the respondent may believe he was justified in so doing, the law requires the inspections to take place and other solutions should have been explored by him. I have also considered this under the penalty phase of the contempt motion, as I will discuss below.

In short, I find Cullin J.’s order should be set aside and the respondent ordered to maintain his retainer and Commitment to General Review with Dahl Engineering (or another professional engineering firm) as well as to pay for the cost of the Registered Code Agency inspections.

Penalty Phase of Contempt Motion

The respondent acted in contempt of Cullin J.’s order when he completed work in response to the LeeMan Engineering report dated May 28, 2024. LeeMan Engineering visited the property on May 04, 2024, and noted several safety concerns. They recommended temporary supports be installed. The respondent installed these posts and completed other work that had been identified as problematic. This included completing some footings, repairing a twisting beam in the carport, and installing sonotubes.

Considering the LeeMan Engineering report, the proper course of action would have been to bring the matter before the Court for a reconsideration of the interim injunction. That said, the respondent completed only what he believed was necessary based on the report. The sentence must be proportionate to this misconduct.

The misconduct is aggravated by the fact that the respondent ignored not only Cullin J.’s order but the Stop Work Order. I remind myself I am sentencing the respondent for his May 2024 conduct. However, that conduct followed a pattern of disrespect for lawful orders made by the applicant pursuant to the Code. It is evident the respondent has no respect for the people engaged by the applicant to enforce the Code and chooses his own interpretation of compliance over theirs. The conduct is aggravated by the fact the legislature enacted the Code for public safety reasons.

The respondent’s efforts to purge his contempt are significant and mitigating. The October 2024 Dahl Engineering report and updated as-built drawings have put the respondent in a position where he is ready to work with the applicant to continue and complete construction of the dwelling. By agreeing to work with a Registered Code Agency, the respondent acknowledges the primacy of the Code and the need to work within it. Since the finding of contempt in July 2024, no other allegations of contempt have been raised, and the respondent engaged in the court process so that the court could determine the outstanding issues between the parties. I have also considered the respondent will be responsible for the costs of the Registered Code Agency.

The sentence in this case must denounce the respondent’s violation of Cullin J.’s order. Unsanctioned willful disrespect of court orders erodes the role of the court in maintaining a free, just, and democratic society. An appropriate sentence will deter the public generally and the respondent specifically from engaging in this type of behaviour, particularly where public safety is at the core of the subject legislation.

For these reasons, I conclude a fine in the amount of $7,500 together with an order for costs is a just and appropriate sentence in these circumstances. I have considered the respondent’s ability to pay. While I recognize the respondent is engaged in mortgage remedy proceedings involving the property, I also know he has an ongoing business and has engaged professional engineers to assist in the completion of the dwelling. I am satisfied he can pay the fine.

The Other Relief Claimed by the Respondent

The respondent also asks for production of closed session meetings held by the applicant as well as a recording of meetings between Jeff Lapierre and third parties. The respondent suggests this evidence will establish slanderous comments were made about him by the applicant.

The relevance of documents is determined by the pleadings: Denault v. Alplay, 2016 ONSC 1618 at paras. 11-13; The Manufacturers Life Insurance Company v. ASG Technologies Group, Inc., 2020 ONSC 3286 at para. 13. The respondent’s pleadings do not contain a claim based in slander. The request for production of this information is accordingly dismissed.

Conclusion

For these reasons I order as follows:

a. Justice Cullin’s temporary order dated October 07, 2022, is set aside;

b. The respondent will maintain his retainer and Commitment to General Review with Dahl Engineering (or another professional engineering firm) to complete the construction of the dwelling;

c. The parties will use, and the respondent will pay the cost of the Registered Code Agency inspections with respect to the construction of the dwelling;

d. The respondent will pay a fine in the amount of $7,500 for his contempt of Cullin J.’s temporary order; and

e. The balance of the respondent’s motion is dismissed.

If the parties are unable to agree on the costs of these motions, the applicant may serve and file submissions on costs of no more than two pages, not including a bill of costs and any offers to settle, within fifteen days of the date of this order. The respondent may serve and file submissions on costs of no more than two pages, not including any offers to settle within thirty days of the date of this order.

Patrick J. Boucher
Date: February 18, 2025