



COURT OF APPEAL FOR ONTARIO

CITATION: Sutherland Lofts Inc. v. Peck, 2017 ONCA 368

DATE: 20170508

DOCKET: C62807

Weiler, Pardu and Roberts JJ.A.

BETWEEN

Sutherland Lofts Inc.

Applicant
(Respondent in Appeal)

and

Chris Peck, Chief Building Official for the
    Corporation of the
City of St. Thomas, and The Corporation of the City of St. Thomas

Respondents
(Appellants)

Tom Halinski and David Neligan, for the appellants

Valerie MGarry, for the respondent

Heard: April 12, 2017

On appeal from the order of Justice K. Gorman of the Superior
    Court of Justice, dated September 23, 2016, with reasons reported at
2016 ONSC 6015
.

By the Court

[1]

The Corporation of the City of St. Thomas (the
    City) and Chris Peck, the Citys Chief Building Official (CBO), appeal the
    application judges order declaring the Order to Remedy Unsafe Building, issued
    on December 3, 2015 (the Order to Remedy), by the CBO, null, void and
    inoperative.

[2]

The respondent brings a cross-appeal to obtain
    an interim injunction preventing the appellants from demolishing its building
    located at 606-610 Talbot Street in St. Thomas, which was the subject of the
    Order to Remedy under appeal (the Building), and for a declaratory order that
    the Building is not unsafe as defined in the
Building Code Act
(the
    Act).  The application judge declined to deal with these claimed remedies.

[3]

For the reasons that follow, we allow the appeal,
    dismiss the cross-appeal, and remit to another application judge the questions
    of whether the Building is unsafe and whether an interim injunction should
    issue.

A.

Preliminary Issue

[4]

The parties were asked to address whether the
    appeal and cross-appeal were moot.

[5]

The City issued a second Order to Remedy Unsafe
    Building, dated October 26, 2016, which the respondent has appealed to the
    Superior Court of Justice.  As with the first Order to Remedy, the respondent
    submits that the second order is null, void and ineffective because it lacks
    specificity. That appeal is pending.

[6]

The appellant takes the position that there is
    still a live controversy between the parties as to the specificity of an Order to
    Remedy Unsafe Building under the Act, which would benefit from this courts
    guidance.  The respondent maintains that the present appeal and cross-appeal
    are moot because they are superseded by the October 26, 2016 order.

[7]

We are of the view that the present appeal and
    cross-appeal are not moot.  The issues of whether the Order to Remedy lacks
    specificity, the Building is unsafe, and the availability of an interim
    injunction to prevent demolition, do not raise a hypothetical or abstract
    question but are still live issues between the parties; this courts decision
    will therefore have a practical effect on the parties:
Borowski v.

Canada (Attorney General)
,

[1989] 1
    S.C.R. 342
, at p. 353;

Mental Health Centre Penetanguishene v.

Ontario
,

2010 ONCA
    197
,

260 O.A.C.
    125
, at para. 35.

B.

Factual Background

[8]

We shall set out a brief summary of the relevant
    factual background to put the appeal and cross-appeal into their proper
    context.

[9]

The Building is over 100 years old.  It was
    purchased by the respondent in 2003 with the plan of renovating it into a
    combination of commercial and residential apartments.  This plan has never
    progressed and the Building has sat vacant from at least the date it was
    purchased by the respondent. Since that time, the condition of the Building has
    deteriorated.

[10]

The lengthy history of the parties dispute in
    relation to the Building dates back to at least 2008 when the CBO first issued
    an Order to Remedy on March 27, 2008, which, among other things, required the
    respondent to provide an engineers structural report and undertake certain
    remedial repairs.

[11]

The respondent did not comply with the Order to
    Remedy or the subsequent orders issued by the CBO.  Instead, the respondent
    instigated injunction and other proceedings to stop the demolition of its
    Building.

[12]

The respondent was initially unsuccessful and
    the City was permitted by the July 15, 2008 order of Little J. to proceed with
    the demolition of the Building. Demolition commenced on July 21, 2008.

[13]

However, two days later, on July 23, 2008, the
    respondent obtained a stay of the demolition order pending its appeal of Little
    J.s order.  By then, the City had demolished part of the roof and removed some
    of the structural components of the Building.

[14]

The respondent and its principal, David McGee, commenced
    an action against the appellants and others in July 2010 for wrongful
    demolition of the Building.  On December 21, 2011, Leitch J. dismissed the respondents
    action because the respondent was dissolved and was without legal capacity to
    commence the action.  The motion judge struck out Mr. McGees pleadings with
    leave to amend.

[15]

The respondent took no further remedial steps to
    stabilize and preserve the Building.  The respondent made several unsuccessful
    attempts to sell the Building.  Although the respondent applied for and was
    granted a building permit for shoring on January 12, 2015, no work was
    undertaken at that time.

[16]

In June 2015, a significant section of the
    Buildings second floor collapsed and on September 11, 2015, the roof partially
    collapsed.  The City engaged an engineering firm to inspect the Building and
    provide a written report with respect to its structural condition.  The CBO
    issued and served on the respondent an Order Prohibiting Occupancy dated
    September 15, 2015.  In response to the engineering report, also dated
    September 15, 2015, the CBO issued and served on the respondent an Emergency Order
    the following day on September 16, 2015, to which the engineering report was
    attached.

[17]

The respondent engaged an engineering firm to
    prepare and deliver an inspection report which included a plan for hoarding and
    shoring to alleviate the danger posed by the instability of the Building, as
    well as waterproofing to avoid further deterioration.  The report was received
    on September 21, 2015. The respondent completed about 30% of the shoring, some
    of the hoarding, and none of the waterproofing, which were recommended by its
    own engineer.

[18]

Having determined that the immediate danger of
    collapse had been alleviated by the respondents temporary shoring and hoarding
    work, on November 5, 2015, the CBO lifted the Emergency Order and replaced it
    with an Order of the Property Standards Officer, which detailed additional work
    to be completed.  On December 3, 2015, the CBO issued the Order to Remedy
    Unsafe Building, which is the subject of this appeal.

[19]

The respondent did not comply with the orders or
    complete any additional remedial work.  It did not appeal any of the orders but
    brought an application in March 2016 to have the Order to Remedy declared
    invalid, and to obtain interim injunctive relief, as well as a declaration that
    the Building was not unsafe.  In the alternative, the respondent requested
    leave to file a late appeal of the November 5, 2015 Order of the Property
    Standards Officer and the December 3, 2015 Order to Remedy.

C.

Application Judges Decision

[20]

The application judge determined that the Order
    to Remedy was null, void and inoperative for the following reasons:

i.    It did not comply with the Act
[1]
because it was only served on the owner.  The application judge concluded that
    the Order to Remedy should have also been served on the respondents property
    manager and local supervisory agent, as such other persons affected by the
    Order.

ii.   It lacked the specificity required under the Act.

[21]

The application judge concluded that, given her
    ruling with respect to the invalidity of the Order to Remedy, it was not
    necessary for her deal with the issue of injunctive relief.  Although not
    stated, presumably also because of her ruling, the application judge did not
    determine the factual issue of the Buildings structural integrity.

D.

Analysis

[22]

We agree that the application judge made two
    errors.

(1)

Service of the Order to Remedy

[23]

First, the application judge erroneously
    declared that the Order to Remedy was null, void and inoperative based on
    allegedly defective service on the respondent.

[24]

In our view, the appellants service of the
    Order to Remedy by registered mail on the respondent as owner of the Building,
    at the respondents last known address, complied with the provisions of ss. 15.9(5)
    and 27(1) of the Act, which provide as follows:

s. 15.9(5)     The order shall be
    served on the owner and each person apparently in possession of the building
    and such other persons affected thereby as the chief building official
    determines and a copy of the order may be posted on the site of the building.



s. 27(1)        A notice or order
    required by this Act to be served may be served personally or by registered
    mail sent to the last known address of the person to whom notice is to be given
    or to that persons agent for service.

[25]

It was within the CBOs discretion as to whether
    the respondents property manager and local supervisory agent should be served
    with the Order to Remedy.  We agree with the appellants submission that the
    property manager and local supervisory agent were not in possession of the
    Building, but were at best the respondents agents for service.  The Building
    was vacant and there was an order that prohibited occupation.  Only the owner
    was in possession of the Building.  As a result, the CBO was not required to
    serve any other person.  There is no basis to suggest that the CBO acted
    unreasonably in the exercise of his discretion not to serve the respondents
    property manager and local supervisory agent.

[26]

In any event, delayed service does not
    invalidate the Order to Remedy.  Section 27(2) of the Act deals with the
    possibility of, and the remedy for, delayed service, namely, that service is
    not effective until receipt:

If a notice or order is served by
    registered mail, the service shall be deemed to have been made on the fifth day
    after the day of mailing unless the person to whom the notice or order is given
    or that persons agent for service establishes that, acting in good faith,
    through absence, accident, illness or other unintentional cause the notice was
    not received until a later date.

[27]

As a result, delayed service may only affect the
    timelines under the Order to Remedy, giving rise to an extension of time for
    compliance with the Order to Remedy under s. 27(2), or for an appeal pursuant
    to s. 25(2) of the Act.

[28]

The purpose of service was achieved in this case: 
    all interested and affected parties had notice of the Order to Remedy and were
    present before the court.  As a result, we confirm that service of the Order to
    Remedy was compliant with the Act and did not invalidate the Order to Remedy.

(2)

Specificity of the Order to Remedy

[29]

We turn next to the application judges
    determination that the Order to Remedy lacked specificity contrary to the Act. 
    The application judge did not provide any reasons or analysis for this
    conclusion.  She also mistakenly referred to s. 15.2(2) of the Act, which
    prescribes the contents of a Property Standards Order, rather than to s. 15.9 (4),
    which prescribes the contents of an Order to Remedy Unsafe Building.  Unfortunately,
    her lack of reasons and analysis does not permit us to conduct a meaningful
    appellate review.  As a result, no deference is owed to her decision and this
    court must consider this question afresh.

[30]

We start with the general principle that a lack
    of particulars is not fatal to the validity of an Order to Remedy Unsafe Building
    under s. 15.9(4) of the Act.

[31]

First, s. 15.9(4) of the Act allows for detailed
    particulars of the remedial steps to be taken to be provided following further
    investigation.  For example, in
Ottawa (City) v. Lauzon
, 2013 ONSC 2619, [2013] O.J. No. 2072, at para. 22, the court
    confirmed that 
[
s
]
ection 15.9 (4) gives the City the
    authority to order the remedial steps to be taken which would include the
    authority to request further engineering reports be provided to determine what
    remedial steps are to be taken.

[32]

Further, s. 25(4) of the Act allows a judge to
    order that additional particulars be provided because it empowers a judge to
    take any action that the CBO may take:

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.

[33]

Turning next to the prescribed specificity of
    the Order to Remedy, s. 15.9(4) of the Act stipulates that an Order to Remedy Unsafe
    Building should contain the following:

An
    inspector who finds that a building is unsafe may make an order setting out the
    reasons why the building is unsafe and the remedial steps necessary to render
    the building safe and may require the order to be carried out within the time
    specified in the order.

[34]

In the present case, we are of the view that the
    Order to Remedy complies with s. 15.9(4) of the Act in that it contains
    sufficient particularity to enable the respondent to know the case it had to
    meet and the deficiencies that had to be remedied.  In particular, the Order to
    Remedy specifies the areas and items in the Building that comprise the alleged serious,
    unsafe conditions requiring remediation, including the collapsed and rotten
    sections of floors and split structural beams that were also noted by the
    respondents own engineer.

[35]

Moreover, when the Order to Remedy is viewed in
    the context of the long history between the parties, the lengthy correspondence
    and the detailed engineering reports that the parties exchanged, there can be
    no doubt that the respondent knew the case it had to meet and the repairs that
    were necessary to stabilize the Building.  Moreover, the respondent applied for
    a building permit to carry out repairs and its own engineer recommended certain
    remedial measures that corresponded with those required by the Order to Remedy. 
    The respondent completed some but not all of the necessary repairs.  The
    respondent did not complete all of the shoring and hoarding work required nor
    any of the waterproofing recommended by its own engineer.  This was not due to
    the respondents lack of understanding of what was required, but because of an
    admitted lack of funds to complete the repairs.

[36]

We see no basis to invalidate the Order to
    Remedy.

[37]

Before leaving the issue of specificity, we make
    the following general recommendation for the future.  Given that an Order to Remedy
    Unsafe Building under the Act is necessarily fact-specific to the particular
    building or property for which the order is issued, it is not possible to make general,
    practical suggestions about the level of specificity required for such an
    order.  However, as appellants counsel conceded, if the CBO already has an
    engineering report, it would be helpful to attach it to the order requiring
    remediation, if it has not already been delivered to the person receiving the
    order (as it was in the present case).

[38]

By this recommendation, we are not suggesting
    that the CBO must obtain an engineering report before issuing an Order to Remedy
    Unsafe Building under the Act.  Nor is it fatal to the validity of such an
    order if the CBO does not have or does not attach an engineering report.  Certainly,
    for the protection of the public, the CBO must have the flexibility to issue such
    orders to deal with all kinds of situations without first incurring the delay
    and expense of an engineering report.  Moreover, it is also within the CBOs
    discretion to require the person receiving the order to obtain an engineering
    report:
Ottawa
, at para. 22.

E.

Respondents Cross-Appeal

[39]

With respect to the respondents request for
    injunctive and declarative relief, we are not in a position to determine these
    issues on this record. In particular, we lack a current evidentiary record
    describing the present state of the Building.  Further, with respect to the
    injunctive relief requested, we have no evidence that the respondent is capable
    of providing any undertaking with respect to damages.

F.

Disposition

[40]

Accordingly, the appeal is allowed.  The
    cross-appeal is dismissed.  The issues of whether an interim injunction should
    be granted, and whether the Building is unsafe, are remitted for hearing before
    another application judge.

[41]

If the parties cannot agree on the issue of
    costs on the appeal, the appellants shall deliver a bill of costs, together
    with any brief written submissions of no more than two pages, within seven days
    of the release of this decision.  The respondents shall deliver their
    responding written submissions of no more than two pages within fourteen days
    of the release of this decision, subject to a request for further time to
    prepare the submissions.  The appellants shall deliver a brief reply within
    seventeen days of the release of this decision.

Released: G.P. May 8, 2017

K.M
    Weiler J.A.

G. Pardu J.A.

L. B. Roberts J.A.





[1]
Although not raised as an issue on this appeal, we note that t
he
    application judge mistakenly referred to s. 15.2(3) of the Act instead of s.
    15.9(5) of the Act.


