Tom Halinski

The applicant sought an extension of time to file a notice of appeal from a judgment finding its building in St. Thomas unsafe under the Building Code Act, 1992.

The applicant also sought an injunction to prevent demolition pending appeal.

The Court of Appeal dismissed both motions.

The court found that the applicant had not formed an unequivocal intention to appeal, the delay in bringing the motion was not adequately explained, there was significant prejudice to the respondents due to the unsafe condition of the building and public safety concerns, and the appeal lacked merit as the application judge's findings were well-reasoned and supported by evidence.

This is a costs endorsement following an appeal decision released on May 8, 2017.

The appellants were successful on appeal and the cross-appeal was dismissed.

The appellants sought partial indemnity costs in the amount of $38,105.67, including disbursements and HST.

The respondent did not dispute the quantum but argued that no costs should be awarded or alternatively that costs should be left to the application judge or awarded in the cause.

The court awarded costs to the appellants in the full amount requested, applying the ordinary practice that the successful party on appeal receives reasonable, fair and proportionate partial indemnity costs.

The appellants appealed an application judge's order declaring an Order to Remedy Unsafe Building null, void, and inoperative.

The respondent cross-appealed seeking an interim injunction to prevent demolition and a declaration that the building was not unsafe.

The Court of Appeal found that the application judge made two errors: first, in finding that service of the Order to Remedy was defective when it was properly served on the owner by registered mail in compliance with the Building Code Act; and second, in finding that the Order to Remedy lacked the required specificity.

The Court held that the Order to Remedy contained sufficient particularity to enable the respondent to understand the case it had to meet and the deficiencies requiring remediation.

The appeal was allowed, the cross-appeal dismissed, and the issues of interim injunction and whether the building was unsafe were remitted to another application judge.