



COURT OF APPEAL FOR ONTARIO

CITATION: Whitby (Town) v. G & G 878996
    LM Ltd., 2020 ONCA 654

DATE: 20201019

DOCKET: C66211

Hourigan, Trotter and Jamal JJ.A.

BETWEEN

The Corporation of the Town of Whitby

Applicant

(Respondent in Appeal)

and

G
    & G 878996 LM Ltd.

Respondent

(Appellant)

John A. Annen, for the appellant

R. Andrew Biggart and Natalia Sheikh
    for the respondent

Heard: October 13, 2020

On
    appeal from the order of Justice Myrna L. Lack of the Superior Court of Justice,
    dated October 26, 2018.

REASONS FOR DECISION

[1]

The appellant, G&G 878996 LM Ltd.
    (G&G), owns a multi-story, mixed-use commercial/residential building in
    downtown Whitby with the municipal address of 123,125 and127 Brock Street South
    (123). On April 2, 2015, a fire occurred at an adjacent building, 121 Brock
    Street South (121), which resulted in 121 being demolished, except for 121s
    wall adjoining G&Gs property.  This adjoining wall was eventually removed
    with the approval of the respondent, the Corporation of the Town of Whitby
    (Whitby).

[2]

Whitbys Chief Building Official (CBO) later determined
    that 123s north wall, which had previously abutted 121, constituted an
    immediate danger to occupants and the public-at-large. Pursuant to her
    authority under s.15.10 of the
Building Code Act
,
1992
, S.O.
    1992, c. 23, (the Act), the CBO issued two emergency orders dated November
    30, 2017 and December 1, 2017, to eliminate the immediate danger posed by the
    exposed wall. Whitby then spent $335,089.86 to protect the public and effect
    repairs to terminate the danger.

[3]

Following the issuing of an emergency order
    under s. 15.10 of the Act, a CBO must apply to a judge of the Superior Court to
    confirm the order. On such an application, the court must confirm, modify, or
    rescind the order. It must also determine whether the amounts spent to
    terminate the danger may be recovered in whole, in part, or not all.  In the
    case at bar, the application judge confirmed the emergency orders and ordered
    that Whitby could recover from G&G its full costs in taking steps to
    terminate the immediate danger, as well as its costs of the application.

[4]

The primary ground of appeal is that the application
    judge erred in failing to consider whether the doctrine of equitable set-off
    applied in determining whether the amounts spent by Whitby were recoverable
    from G&G. G&G submits that equitable set-off is applicable because it
    has a claim against Whitby for failing to enforce an order it made against the
    owner of 121 to, among other things, repair the foundation walls, stone rubble
    footings and slab on grade that were exposed to the elements as a consequence
    of the fire and the building being demolished. It also submits that the
    application judge erred in law by approaching the case on the basis that it is
    analogous to an environmental damage claim. Finally, G&G submits that the
    application judge made her order based on an incomplete evidentiary record.

[5]

Whitby makes two submissions in response. First,
    it argues that, pursuant to s. 15.10 (9) of the Act, the application judges
    order is final and not subject to appeal. Second, it submits that this court
    should decline to consider G&Gs equitable set-off argument because it was
    not raised before the application judge.

[6]

We conclude that the appeal must be dismissed
    based on the second argument advanced by Whitby.

[7]

We reject the argument that the application
    judge incorrectly analogized the case at bar to an environmental damage claim.
    The comments of the application judge in that regard were part of a dialogue
    with counsel and not part of her reasons. Regarding the evidentiary record, no
    complaint was made by G&G on the return of the application about the state
    of the record. In any event, we are not satisfied that the record was
    insufficient for the application judge to make her order.

[8]

Regarding the equitable set-off argument, we
    note that G&G commenced an action against its insurers, Whitby, and the current
    and former owners of 121. In its statement of clam, which was an exhibit to the
    affidavit filed by G&G on the application, it alleged various acts of
    negligence by Whitby. However, at the hearing of the application, G&G did
    not argue that it was entitled to an equitable set-off. In her oral
    submissions, the then counsel for G&G referenced the claim but offered no
    details about its quantity. Instead of arguing equitable set-off, she submitted
    that [Whitby] should be estopped from collecting any of the funds expended on
    measures determining this perceived danger at that time.

[9]

In our view, G&G did not properly raise the
    issue of equitable set-off below. Generally, this court will not entertain
    entirely new issues on appeal because it is unfair to force a party on an
    appeal to respond when they might have adduced evidence below had they known
    that the matter would be an issue on appeal:
Kaiman v. Graham
, 2009
    ONCA 77, 245 O.A.C. 130, at para. 18.  This concern is heightened in the
    present case where G&G is seeking an equitable remedy, and we have a wholly
    inadequate evidentiary record to assess the equities of the case. Further, G&G
    has not explained why equitable set-off was not raised on the application. It
    would be contrary to the interests of justice to allow G&G to introduce
    this new argument on appeal. Consequently, it is unnecessary to consider Whitbys
    submission that the application judges order is immune from appeal.

[10]

The appeal is dismissed. G&G shall pay Whitby
    its costs of the appeal in the all-inclusive amount of $9,000.

C.W. Hourigan J.A.

Gary Trotter J.A.

M. Jamal J.A.


