





CITATION:
Davis v. Guelph (City), 2011 ONCA 761



DATE: 20111206



DOCKET: C53429



COURT OF APPEAL FOR ONTARIO



Blair, Juriansz JJ.A. and Pepall J. (
ad hoc)



BETWEEN



Erica Davis



Appellant (Respondent in Appeal)



and



The Corporation of the City of Guelph



Respondent (Appellant in Appeal)



Scott Worsfold for the appellant, The Corporation of the City
          of Guelph



Ms. Erica Davis, self-represented



Heard: October 24, 2011



On appeal from the order of Justice D.G. Price of the Superior
          Court of Justice, dated February 18, 2011, allowing an appeal from an order
          of the Citys Property Standards Committee and quashing the order of the
          Citys Property Standards Officer.



R.A. Blair J.A.:



Overview

[1]

This appeal has its roots in an ongoing dispute between Ms. Davis and
    the City of Guelph over the state of repair of a swimming pool located in her
    back yard at 8 Terrace Lane.  The dispute began in the spring of 2006.

[2]

Following a complaint from one of Ms. Davis neighbours at that time,
    the City conducted two inspections of the property and observed that there was
    standing water on a tarp covering the pool and that the circulation pump for
    the swimming pool did not appear to be functioning.  On May 31, 2006, the City
    served a Notice of Violation under No. (2003)  17192,
Standing Water By-law
,
    requiring Ms. Davis to ensure by June 6 that the pool pump was circulating the
    pool water and that the water remained chlorinated.  Standing water is a
    breeding ground for mosquitoes, and the threat of the West Nile virus was a
    prevalent concern at the time.

[3]

On June 15, 2006, an enforcement officer from the City, Ray Borthwick,
    attended at the premises and  in the absence of Ms. Davis, who was out of the
    country on a family matter  re-entered the back yard.  Observing that the
    standing water remained on the tarp and that the pump was still not
    functioning, Mr. Borthwick arranged to have the standing water removed from the
    tarp, the tarp removed from the pool and  after consultation with an outside
    swimming pool company  the pool drained to a depth of 6 in the shallow end,
    and the remaining water chlorinated.

[4]

These actions, and Ms. Davis failure to take any steps to respond to
    the Citys Notice, were the genesis of the ongoing problems that followed.  Ms.
    Davis says that when she returned from abroad she discovered that the vinyl
    lining on the pool had begun to peel away and the surrounding earth had begun
    to collapse into the pool.  On June 26, 2006 she wrote to the City asking what
    they had done and requesting compensation.  In August, the City conducted
    another inspection and noted that there was green-coloured standing water in
    the pool and that the pool liner was still in disrepair.  The City issued
    another Notice of Violation on August 2, 2006 requiring that Ms. Davis ensure that
    the pool pump was circulating water and that the water was chlorinated by
    August 8, 2006. When that was not done Mr. Borthwick and a Building Inspector,
    Robert Reynen, attended at the premises on August 10 and caused the remaining
    water to be drained from the pool.

[5]

There followed a series of further Notices of Violation under the Citys
    Standing Water By-law in 2007, in 2008 and in 2009.  Ms. Davis did not respond
    to any of them.  It was her position that the City had caused the damage to the
    pool by improperly draining the water out of it, and that the City should pay
    for and repair the damage.  In June 2008, she commenced a civil action against
    the City claiming damages in the amount of $75,000, representing her estimated
    cost of repairing the pool.

[6]

Finally, on May 26, 2009, Mr. Reynen  by then the Citys Manager of
    Inspection Services and the Property Standards Officer  issued a Repair Order
    to Ms. Davis requiring her to repair the pool and make it structurally sound,
    as well as the surrounding concrete walk areas in the yard, or, alternatively,
    to remove the pool.  She was to comply by June 26, 2009.

[7]

Ms. Davis appealed this order to the Citys Property Standards
    Committee, which confirmed the Repair Order on June 23, 2009.  She then
    appealed the Order of the Committee to a judge of the Superior Court of
    Justice, as she is entitled to do under the
Building Code Act
, S.O.
    1992, c. 23, s.15.3(4).

[8]

On February 18, 2011, Price J. allowed her appeal, quashed the order of
    the Property Standards Officer and substituted his own order that the costs of
    repairing the swimming pool be shared by the parties in proportions to be
    determined by him.

[9]

The City appeals, raising procedural fairness, statutory interpretation
    and jurisdictional grounds.  In particular, Mr. Worsfold argues that the
    appeals judge erred by:

a)

breaching the principles of
    procedural fairness by determining issues without providing the City with the
    opportunity to respond and make submissions, including issues concerning:

(i) 
    whether the respondents back-yard swimming pool constituted a room or place
    actually being used as a dwelling as contemplated by s. 437 of the
Municipal
    Act, 2001
,

S.O. 2001, c. 25;

(ii) 
    the application of
Charter
privacy rights to an inspection under the
Municipal
    Act
, and City by-laws; and

(iii)
    Whether the appeals judge had jurisdiction to make the order requiring the
    parties to share the costs of repair;

b)

by erring in his determination of the foregoing issues in any event;
    and,

c)

by holding that the Repair Order should be set aside on the grounds of
    bias.

[10]

I would allow the appeal for the reasons that follow.

Facts

[11]

The City of Guelph has a Standing Water By-law that prohibits a swimming
    pool and swimming pool cover from containing standing water (i.e., any water
    that is not continuously in movement by natural or mechanical means).  As
    noted, there was a particular concern during this period of time that standing
    water areas not become breeding grounds for mosquitoes in order to protect the
    public from the spread of the West Nile virus.

[12]

In the spring of 2006, the City received a complaint from one of Ms.
    Davis neighbours that standing water in her pool constituted a health hazard. 
    Mr. Borthwick was sent to investigate.  He observed the pool from an adjacent
    property on May 9 and May 29, 2006, saw water on a blue tarp covering the pool,
    and concluded that the circulation pump was not functioning to keep the water
    circulating.  He issued a Notice of Violation on May 31, 2006, requiring Ms.
    Davis to ensure that by June 6 the pool pump was circulating the pool water and
    that the water remained chlorinated.

[13]

On June 15, 2006, Mr. Borthwick returned to the Davis premises again to
    determine whether the Notice had been complied with and to carry out the work
    if required.  Ms. Davis was out of the country.  He entered the rear yard of
    the property, without consent or a warrant, and observed that standing water
    remained on the blue tarp covering the pool and that the pool pump was not
    functioning.

[14]

As a result, Mr. Borthwick caused the blue tarp covering the pool to be
    vacuumed dry and removed.  He also observed that there was pre-existing damage
    to the pool liner in a number of locations and that the liner was pulled away
    at the corners and at the side of the pool.  There was duct tape evident at the
    side of the pool to fasten the liner, temporarily, to the concrete wall.
    Photographs taken at the time confirm this. Mr. Borthwick then consulted an
    outside pool company and, following the advice he received from that source,
    arranged to have the water in the pool drained to a depth of 6 in the shallow
    end.  The idea was to leave some water in the pool to avoid further damage to
    the liner until the owner could put the pool into proper operating condition. 
    The water in the pool was then chlorinated with the approval of the
    Wellington-Dufferin-Guelph Public Health Inspector.

[15]

When Ms. Davis returned she was upset to learn that her pool cover and
    pump had been removed and that the water in the pool had been emptied to a
    level below the entry valves through which water had to enter to keep water
    circulating, and which  she says  caused the vinyl liner to peel away further
    and the surrounding earth to begin collapsing into the pool.  She wrote to the
    City in June to complain, but received no response to her letters.

[16]

On August 2, 2006, Mr. Borthwick again inspected the Davis pool from an
    adjacent property and observed that there was green coloured standing water in
    the pool and that the pool liner was still pulled away at the corners and
    side.  It appeared to him that no steps had been taken by the owner since the
    June 15 inspection, and he issued another Notice of Violation under the
    Standing Water By-law requiring the owner to ensure that the pool pump was
    circulating the pool water and that the water remained chlorinated.  He posted
    the Notice and sent a copy to Ms. Davis by mail.

[17]

On August 9, 2006, Mr. Reynen  then one of the Citys Building
    Inpectors  attended at the Davis premises.  He knocked on the door but
    received no response.  He left a notice on the front door advising that
    remedial work would be carried out by the City the following day to comply with
    the Standing Water By-law as required by the August 2 Notice issued by Mr.
    Borthwick.  Prior to his August 9 attendance, Mr.
Reynen was aware that Mr. Borthwick had attended the property in June to carry
    out earlier work relating to a standing water violation.  There is no evidence,
    however, that Mr. Reynen had any involvement in any of the steps earlier taken
    by Mr. Borthwick.

[18]

Ms. Davis says that she sent letters to the City, including one to Mr.
    Reynen on June 26, and that she had a number of telephone conversations with
    City officials, including Mr. Reynen, in which she complained that the City had
    unnecessarily caused damage to her pool and asked that the City repair the
    damage.  Mr. Reynen does not recall the various letters referred to by Ms.
    Davis, save for one  the letter dated June 26, 2006, to which he did not
    respond on the advice of his superior, Bruce Poole, the Citys Chief Building
    Inspector.  Nor does he recall any telephone calls with Ms. Davis during the
    course of the summer, although his records indicate that he tried,
    unsuccessfully, to call her on four separate occasions on August 9.

[19]

At the outset of the appeal hearing, Ms. Davis filed an audio tape and a
    transcript of a telephone conversation that satisfied the appeal judge she had
    spoken to Mr. Reynen on the phone on August 10, 2006.  Counsel for the City did
    not have a copy of the audio tape, but in any event the upshot of the conversation
    between Ms. Davis and Mr. Reynen on August 10  according to the transcript 
    is that, on Ms. Davis side, she wanted to have her expert and her lawyer and
    witnesses there when the City officials attended and that she wanted the City
    to repair the pool, and, on Mr. Reynens part, that he refused to budge from
    the Citys position that the City would be attending that day to empty the
    pool.

[20]

Mr. Reynen did attend at the Davis premises on August 10, 2006, along
    with Mr. Borthwick and a Wellington-Dufferin-Guelph Health Inspector and a
    Guelph police officer.  Ms. Davis grudgingly permitted access to her back yard
    where Mr. Reynen directed the City staff to empty the pool of the remaining
    standing water as it was in contravention of the Standing Water By-law and had
    not been corrected as required by the August 2 Notice of Violation.

[21]

The saga continued over the next few years.

[22]

As a result of complaints about standing water in the pool, further
    Notices of Violation under the Standing Water By-law were issued on June 22,
    2007, August 13, 2007, May 26, 2008 and May 15, 2009.  On May 6, 2008, an Order
    of the Public Health Inspector was issued under the
Health Protection and
    Promotion Act
, R.S.O. 1990, c. H.7, requiring the respondent to treat the
    water in the pool with larvicide and to have the pool fully operational or
    permanently backfill the pool.

[23]

Inspections of the premises by Mr. Borthwick and a Public Health
    Inspector on July 9, 2007, August 21, 2007, June 19, 2008, July 2, 2009 and
    August 12, 2009 confirmed that Ms. Davis had done nothing to comply with the
    various Notices of Violation.  On each of these attendances, no one answered
    the door when the officials arrived and they entered the rear yard of Ms.
    Davis property without consent and without having obtained a warrant.  The
    City contractor added larvicide to the water on three of these occasions.

[24]

In June 2008, Ms. Davis commenced her action against the City claiming
    damages for the costs of repairing the pool.  The action was dismissed by
    Herold J. on February 16, 2010.  Ms. Davis subsequently appealed that decision,
    but was considerably late in filing her Notice of Appeal.  She was ultimately
    denied an extension of time to appeal.

[25]

The condition of the swimming pool continued to deteriorate during all
    this time.

[26]

On May 14, 2009, a Property Standards Inspector for the City, Stephen
    Jamieson, attended the Davis property in response to yet another complaint
    about standing water.  He testified that he obtained the consent of a male
    occupant of the house to enter the property.  Ms. Davis contests this
    vigorously, insisting that she did not have a male visitor or a male occupant
    in the house during this period of time.  The trial judge rejected Mr.
    Jamiesons evidence on this point and found that he entered the property
    without permission.

[27]

In any event, Mr. Jamieson discovered that the rear yard was locked.  He
    therefore viewed the yard from an adjacent property and then gained access to
    Ms. Davis rear yard from the adjacent property.  He observed that there was
    standing water in the pool and that there was visible structural failure due to
    the partial collapse of the pool walls.  He considered this to be a hazard to
    any persons in the immediate vicinity and he issued a Notice of Violation under
    the Standing Water By-law the following day, May 15, 2009.

[28]

Mr. Jamieson then had a discussion with Mr. Reynen, who in his then
    capacity as Manager for Inspection Services was Mr. Jamiesons supervisor. As a
    result of the information conveyed to Mr. Reynen, together with the photographs
    showing the deterioration of the swimming pool and the surrounding concrete
    walkway, Mr. Jamieson and Mr. Reynen concluded that the condition of the
    swimming pool and adjacent walkways was such that they posed a hazard to any
    persons in the vicinity of the pool in the event of further collapse of the
    structure.

[29]

On May 26, 2009, Mr. Reynen issued the Repair Order that is the subject
    of these proceedings.

Analysis

Procedural Fairness Issues

[30]

I do not think it is necessary to deal at length with the procedural
    fairness issues raised by the City.

[31]

It appears that the evidence and the issues at the appeal hearing
    focussed on the alleged impropriety of the City officials conduct in doing
    what they did to the pool in 2006 and on whether Mr. Jamieson and the other
    agents had consent to enter on Ms. Davis property in her absence.  The issue
    of whether the swimming pool is a room or place actually being used as a
    dwelling does not appear to have arisen, nor do counsel appear to have been given
    an opportunity to make submissions on it.  The same may be said for the issue
    of the appeal judges jurisdiction to make the remedial order he made.  While
    the foregoing errors may amount to reversible error in themselves, I do not
    propose to deal with the appeal on that basis.  I am persuaded that the appeal
    judge erred in his determination of the issues outlined above on their merits
    and that the appeal should be allowed.

[32]

I say this for the following reasons.





A Room or Place Actually Being Used
    as a Dwelling

[33]

The appeal judge concluded that Ms. Davis backyard swimming pool
    constitutes a room or place actually being used as a dwelling as contemplated
    by s. 437 of the
Municipal Act
and therefore that the City required
    either the consent of the occupier or a warrant  neither of which it had  to
    enter upon Ms. Davis premises.  I disagree.

[34]

The
Municipal Act
and the
Building Code Act
provide a
    framework within which municipalities may pass by-laws permitting their
    officials to enter upon property for purposes of inspection, without consent
    and without a warrant, subject to certain qualifications (the right of entry
    provisions).  The City of Guelph has passed such a by-law.

[35]

For these purposes, the relevant statutory provisions are the following:

The Municipal Act

Power
    of entry re inspection

436.
(1)
A municipality has the power to pass by-laws
    providing that the municipality may enter on land at any reasonable time for
    the purpose of carrying out an inspection to determine whether or not the
    following are being complied with:

1.   A
    by-law of the municipality passed under this Act.

2.   A
    direction or order of the municipality made under this Act or made under a
    by-law of the municipality passed under this Act.

3.   A
    condition of a licence issued under a by-law of the municipality passed under
    this Act.

4.   An order made under section 431.

...

Restriction re
    dwellings

437.

Despite any
    provision of this Act, a person exercising a power of entry on behalf of a
    municipality under this Act shall not enter or remain in any room or place
    actually being used as a dwelling unless,

(a) the consent of
    the occupier is obtained, the occupier first having been informed that the
    right of entry may be refused and, if refused, may only be made under the
    authority of an order issued under section 438, a warrant issued under section
    439 or a warrant under section 386.3;

(b) an order issued
    under section 438

is obtained;

(c) a warrant issued
    under section 439 is obtained;

(d) a warrant issued
    under section 386.3 is obtained;

(e) the delay
    necessary to obtain an order under section 438, to obtain a warrant under
    section 439 or to obtain the consent of the occupier would result in an
    immediate danger to the health or safety of any person; or

(f)  the
    municipality has given notice of its intention to enter to the occupier of the
    land as required under subsection 435 (2) and the entry is authorized under
    section 79, 80 or 446.

The Building Code
    Act

Inspection of property
    without warrant

15.2
(1)
Where
    a by-law under section 15.1 is in effect, an officer may, upon producing proper
    identification, enter upon any property at any reasonable time without a
    warrant for the purpose of inspecting the property to determine,

(a)  whether the
    property conforms with the standards prescribed in the by-law; or

(b)  whether an
    order made under subsection (2) has been complied with.

Contents of order

(2)
An officer who finds that a
    property does not conform with any of the standards prescribed in a by-law
    passed under section 15.1 may make an order,

(a)   stating the
    municipal address or the legal description of the property;

(b)  giving reasonable
    particulars of the repairs to be made or stating that the site is to be cleared
    of all buildings, structures, debris or refuse and left in a graded and
    levelled condition;

(c)   indicating the
    time for complying with the terms and conditions of the order and giving notice
    that, if the repair or clearance is not carried out within
    that  time, the municipality may carry out the repair or clearance at
    the owners expense; and

(d)  indicating the
    final date for giving notice of appeal from the order.

Service and posting
    of order

(3)
The order shall be served on
    the owner of the property and such other persons affected by it as the officer
    determines and a copy of the order may be posted on the property.

...

[36]

The Citys By-Law No. (2009)  18776,
Power of Entry By-Law
,
    mirrors these statutory permissions and qualifications.

[37]

The statutory right of entry provisions and the Citys by-law constitute
    a regulatory administrative power of entry designed to enable municipal
    officials to monitor and inspect premises for compliance with municipal
    by-laws, licensing requirements, standards, directions and orders.  They are
    enacted for the safety and protection of the public:  see
Comité paritaire
    de lindustrie de la chemise c. Jonathan Potash
, [1994] 2 S.C.R. 406, at p.
    419;
Orillia (City) v. Nicol
(1997), 114 C.C.C. (3d) 570 (Ont. C.A.), at
    paras. 9-10.   They accomplish this purpose  while at the same time respecting
    the enhanced privacy rights in a home  by enabling those officials to enter
    upon a persons property without the need for consent or a warrant
unless
the place being entered is a room or place actually being used as a
    dwelling.

[38]

In my view a room or place actually being used as a dwelling, for
    these purposes, is a building, room or physical structure that is actually
    being occupied and used as a residence or live-in accommodation.  A dwelling in
    this sense does not include a backyard swimming pool  in this case, Ms. Davis
    swimming pool  which is an amenity exterior to the building or structure in
    which she lives and incidental to its use.  This interpretation is consistent
    with the regulatory right of entry provisions in the
Municipal Act
, the
Building
    Code Act
, and the by-law, and their purpose, as described above.  Were it
    otherwise, a municipalitys right of entry could readily be frustrated by
    recalcitrant owners and occupiers who refused consent and who camouflaged their
    non-compliant activities in a manner that made it difficult for municipal
    officials to obtain a warrant.

[39]

The jurisprudence has drawn a distinction between a private dwelling or
    home and a persons backyard or other structure on the basis that there is a
    significantly reduced expectation of privacy in the latter.  It also draws a
    distinction between the criminal law and municipal regulatory law for
Charter
and constitutional purposes: see
R. v. Puskas
, 36 O.R. (3d) 474 (Ont.
    C.A.), at paras. 17-18;
Nicol
, at paras. 9-10.

[40]

The fundamental principles of statutory interpretation direct that the
    words of a statute be read in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act,
    and the intention of the legislature: see
Rizzo & Rizzo Shoes Ltd. (Re)
,
    [1998] 1 S.C.R. 27, per Iacobucci J. at para. 21; see also
Bell ExpressVu
    Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para.26,
    and the cases cited therein.  In the case of s. 437 of the
Municipal Act
,
    some assistance may also be found in the principle that says words may take
    their meaning from the words with which they are associated  the
euisdem
    generis
rule.

[41]

Here, the word room is significant.  A swimming pool is not a room
    although it may be a place.  But the word place must take some of its
    colour from the word preceding it  room  in my view.  A room in this
    context connotes a living space and therefore a place in this context does as
    well.  Both must be actually being used as a dwelling.  Dwelling as well
    takes its meaning from the words preceding it, both of which speak to the
    notion of a living space.  The words actually being used suggest that the
    room or place must be presently and for practical purposes being used as living
    space.

[42]

Ms. Davis back yard swimming pool is consistent with none of these
    indicators.

[43]

There is no definition of the word dwelling in the
Municipal Act
or in other Ontario legislation.  However, dwelling unit is defined in a
    number of Ontario and federal enactments and regulations  always in a way that
    carries the sense of a residence or domestic establishment where people typically
    eat, sleep and live.  Perhaps most closely associated with the present
    circumstances are the regulations under the
Building Code Act
(O. Reg.
    350/06) itself, which define dwelling unit to mean a suite operated as a
    housekeeping unit, used or intended to be used as a domicile by one or more
    persons and usually containing cooking, eating, living, sleeping and sanitary
    facilities: see also the
Planning Act
, R.S.O. 1990, c. P.13, s. 33(1);
    the
Architects Act
, R.S.O. 1990, c. A.26, s. 11(6); the
Criminal Code
,
    R.S.C. 1985, c. C-46, s. 2; the
Income Tax Act
, R.S.C. 1985 (5
th
Supp.), c. 1, s. 231.  Indeed, the word unit might easily be replaced by the
    word place in these definitions, in my view  a dwelling place instead of a
    dwelling unit. An exterior swimming pool is not such a unit or place.

[44]

At the same time, the foregoing interpretation of the word dwelling is
    also consistent with the way in which that word is defined in municipal
    regulatory provisions in other provinces.  For example:

Nova Scotia

Matrimonial Property Act
, R.S.N.S. 1989, c.
    275, s. 2(d):

In this Act,

dwelling includes a
    house, condominium, cottage, mobile home, trailer or boat
occupied as a
    residence
. [Emphasis added.]

Health Protection
    Act
, S.N.S. 2004, c. 4, s. 3(a):

In this Act,

dwelling means a
    building or a portion of a building
that is occupied and used as a residence
and includes a house, condominium, apartment, cottage, mobile home, trailer or
    boat
that is occupied and used as a residence
. [Emphasis added.]

Manitoba

Fumigation and Pest
    Control Regulation
, Man. Reg. 323/88R, s.1:

In this regulation,

house or dwelling
    means any building, hut, or tent used for human habitation whether that use is
    permanent or temporary, and whether it is stationary or movable, and includes
    also any school or factory in part so used.

Dwellings and Buildings Regulation
,
    Man. Reg. 322/88R, s. 1:

In this regulation,

dwelling means a
    building or other structure all or part of which is used, or intended to be
    used, for human habitation.

[45]

All of these suggest that when legislators and regulators resort to the
    word dwelling they do not intend it to encompass structural amenities such as
    outside backyard swimming pools.

[46]

The appeals judge referred to a number of authorities in arriving at the
    contrary conclusion.  Those authorities do not support his view, however.  They
    are all distinguishable and do not address the issue whether a backyard
    swimming pool constitutes a place used as a dwelling.


[47]

For instance, while
Balon v. SGI Canada
, 2004 SKPC 104, 226 Sask.
    R. 141, did concern a swimming pool and the issue whether an insurance policy
    covered moisture damage in a room containing the pool, the pool was an interior
    pool and therefore was clearly within a room or place used as a dwelling.  The
    other authorities referred to by the appeal judge either did not involve
    swimming pools at all (
Lehmann v. Co-operators General Insurance Co.
,2009
    MBQB 6, 71 C.C.L.I. (4th) 135,), or the insurance policy in question expressly
    included swimming pools as part of a dwelling (
Klenk v. Saskatchewan
    Government Insurance
, 2009 SKPC 96, 339 Sask. R. 211)  a case dealing with
    coverage for garage doors)  or the cases involved other structures that were
    considered, like swimming pools, to be incidental to or ancillary to the use of
    a single family dwelling, but were not found to be part of the dwelling: a
    skate board ramp (
A.B. Eight Holdings, Ltd. v. West Vancouver (Dist.)
(1987), 16 B.C.L.R. (2d) 129 (C.A.)); a motorbike practice ramp (
R. v.
    Mane-Tail Land Development Ltd.,
2007 NSSC 173, 255 N.S.R. (2d) 376, at
    paras. 19-20); a garage/stable for three horses (
Oliver v. Eastern
    Newfoundland Regional Appeal Board
, 2010 NLTD 30, 301 Nfld. & P.E.I.R.
    301).
Boudreau v. Viola
, 2007 QCCS 1082, J.E. 2007-818, had a link to a
    swimming pool but had nothing to do with whether that pool was part of a
    dwelling; it concerned a dispute between a swimming pool owner who planted a
    row of trees on her property for the purpose of protecting her privacy, and the
    pool-owners neighbours who argued that the trees were interfering with their
    right to a pleasant view of the neighbourhood.

[48]

In
Puskas
, at paras. 15-17, this Court expressly distinguished
    between a dwelling and a backyard for purposes of assessing the implications of
    a warrantless search.  Although the case is decided in the criminal law
    context, the same underlying concerns that apply to the entry of municipal
    officials into a persons home or dwelling, as opposed to other parts of the
    persons lands, are in play.  Respectfully, rather than being distinguishable,
    as the appeal judge found, the distinction drawn in
Puskas
is consistent
    with the foregoing interpretation of
dwelling.

[49]

In summary, a room or place actually being used as a dwelling, for
    purposes of s. 437 of the
Municipal Act
and the City By-law, is a
    building, room or physical structure that is actually being occupied and used
    as a residence or live-in accommodation.  A backyard swimming pool  an
    exterior amenity the use of which is incidental to the residence  is not a
    dwelling.

The
Charter

[50]

That being the case, no
Charter
issue arises because the City
    officials were entitled to enter onto the respondents property without her
    consent to determine whether the Citys by-laws or its orders or directions
    were being complied with, pursuant to the Citys right of entry by-law enacted
    pursuant to s. 436 of the
Municipal Act
. The appeal judges concern, and
    his negative findings with respect to the apparently high-handed manner in
    which the various City officials entered upon the Davis property over the years
     particularly in May and June 2006, and in the case of Mr. Reynen and Mr.
    Jamieson in May and August, 2009  and what they did upon entry, are of little
    relevance as a result.

[51]

Because the
Charter
is not applicable, the appeal judge erred in
    excluding the evidence of the Property Standards Inspector, Mr. Jamieson, and
    the By-law Enforcement Officer, Mr. Borthwick, from his consideration.  That
    evidence amply supported the Citys decision to serve the Repair Notice and to
    take the steps it did in relation to Ms. Davis property.

Jurisdiction To Make The Order

[52]

The appeal judge ordered that the City and Ms. Davis share the costs of
    repairing the pool in proportions to be determined by him. While it is not
    necessary to decide the issue, given the foregoing determination, the appeal
    judge did not have the authority to make such an order under the
Building
    Code Act
, in my view.

[53]

Section 15.2(2) and s. 15.3 of the
Building Code Act
provide the
    framework for the orders that may be made and for what may be done in the
    appeal process relating to those orders.  They state:

Inspection of property
    without warrant

15.2
(2)
An officer who finds that a
    property does not conform with any of the standards prescribed in a by-law
    passed under section 15.1 may make an order,

(a)   stating the
    municipal address or the legal description of the property;

(b)  giving
    reasonable particulars of the repairs to be made or stating that the site is to
    be cleared of all buildings, structures, debris or refuse and left in a graded
    and levelled condition;

(c)   indicating
    the time for complying with the terms and conditions of the order and giving
    notice that, if the repair or clearance is not carried out within
    that  time, the municipality may carry out the repair or clearance at
    the owners expense; and

(d)  indicating the
    final date for giving notice of appeal from the order.

15.3  (1)
An owner or
    occupant who has been served with an order made under subsection 15.2 (2) and
    who is not satisfied with the terms or conditions of the order may appeal to
    the committee by sending a notice of appeal by registered mail to the secretary
    of the committee within 14 days after being served with the order.

Confirmation of order


(2)
An order that is not
    appealed within the time referred to in subsection (1) shall be deemed to be
    confirmed.

Duty of committee


(3)
The committee shall hear the
    appeal.

Powers of committee

(3.1)
On an appeal, the
    committee has all the powers and functions of the officer who made the order
    and the committee may do any of the following things if, in the committees
    opinion, doing so would maintain the general intent and purpose of the by-law
    and of the official plan or policy statement:

1.   Confirm,
    modify or rescind the order to demolish or repair.

2.  Extend
    the time for complying with the order.

Appeal to court


(4)
The municipality in which
    the property is situate or any owner or occupant or person affected by a
    decision under subsection (3.1) may appeal to the Superior Court of Justice by
    notifying the clerk of the municipality in writing and by applying to the court
    within 14 days after a copy of the decision is sent.

Appointment


(5)
The Superior Court of
    Justice shall appoint, in writing, a time and place for the hearing of the
    appeal and may direct in the appointment the manner in which and the persons
    upon whom the appointment is to be served.

Judges powers


(6)
On the appeal, the judge has
    the same powers and functions as the committee.

Effect of decisions


(7)
An order that is deemed to
    be confirmed under subsection (2) or that is confirmed or modified by the
    committee under subsection (3) or a judge under subsection (6), as the case may
    be, shall be final and binding upon the owner and occupant who shall carry out
    the repair or demolition within the time and in the manner specified in the
    order.

[54]

The appeal judge has the same powers and functions as the Property
    Standards Committee.  That Committee has all the powers and functions of the
    Property Standards Officer and may either confirm, modify or rescind the order
    to demolish or repair or extend the time for complying with the order.  A
    Property Standards Officer may make an order providing for the matters set out
    in subsection 15.2(2), including an order that if the repairs are not carried
    out within the time prescribed, the municipality may carry them out at the
    owners expense.  But the officer has no authority to require the municipality
    to share the costs.

[55]

The appeal judge, therefore, had no authority to require the
    municipality to share the costs.

[56]

There is another reason why the order ought not to have been made.  Ms.
    Davis had commenced a civil action against the City in the Superior Court
    claiming damages in the amount of $75,000, representing the costs of repairing
    the pool.  On February 16, 2010, Herold J. dismissed her claim.  The question
    of the Citys responsibility for repairing the pool had already been determined
    against her in an action involving the same parties and the same issue, and was
    therefore
res judicata
.

Bias

[57]

One further issue remains to be discussed.

[58]

Mr. Reynen issued the Repair Order on May 26, 2009.  He did so in his
    capacity as Property Standards Officer and as the Manager for Inspection
    Services for the City.  Earlier, however  in August, 2006, and in a different
    capacity as a City Building Inspector and by-law enforcement officer  Mr.
    Reynen had been one of those attending Ms. Davis property and directing that
    the pool be drained and the other remedial work about which Ms. Davis
    complains, be done.  The appeal judge found, at para. 213, that:

... Mr. Reynens decision on May 26, 2009, to order
    Ms. Davis to repair her pool at her own expense was invalid by reason of his
    earlier responsibility for the unfairly made decision to drain the pool, which
    she claimed had caused the damage in question, and which was the subject of a
    pending lawsuit in which she sought to hold the City responsible for the
    repairs.
The interest Mr. Reynen held, both personally and professionally,
    in vindicating his previous decision caused a reasonable apprehension of bias
    in his decision
as to who should be responsible for the cost of repairs.
    [Emphasis added.]

[59]

And later stated, at para. 219:

In the present case, Mr. Reynen had been personally
    involved in the decision to drain Ms. Davis pool.  Ms. Davis alleged, in an
    action that was still pending, that that decision had caused the damage to her
    pool.  Mr. Reynen was performing a quasi-judicial function in deciding, not
    only that the pool should be repaired, but that Ms. Davis should undertake the
    repairs or that the City would do so at her expense.  I conclude that a
    reasonable person, with knowledge of the circumstances, would conclude that Mr.
    Reynen would have a pre-disposition to validate his previous decision by
    holding Ms. Davis, rather than the City, responsible for the repairs to her
    pool.

[60]

There are a number of difficulties with this conclusion.

[61]

First, whether or not the evidence supports the appeal judges view that
    the original decision to drain Ms. Davis pool was unfairly made, the appeal
    judge appears to have been under the misapprehension that
Mr. Reynen
was
    responsible for that decision.  He was not. The original decision to drain the
    pool to a level of 6 was made on June 15, 2006, by Mr. Borthwick, after
    consultation with an outside company specializing in swimming pools; the pool
    was drained in accordance with the advice given at that time.  Although Mr.
    Reynen was aware, in his capacity as Building Inspector, that Mr. Borthwick had
    attended the Davis premises in June to carry out earlier work relating to a
    Notice of Violation under the Standing Water By-law, there is no evidence to
    indicate that he had any involvement in the Notices that were issued or
    decisions made with respect to them prior to his own first attendance on August
    9, 2006.

[62]

On that date, Mr. Reynen attended at the Davis property and, when no one
    responded to his knock, he left a notice indicating that City personnel would
    attend the following day to carry out the remedial work required to be done
    under an earlier August 2 Notice of Violation under the Citys Standing Water
    By-Law, issued by Mr. Borthwick.  The following day, he attended again and directed
    City staff, including Mr. Borthwick, to empty the pool of the remaining
    standing water as it was in contravention of the Standing Water by-law.  I
    note, however, that it was on June 15, under the direction of Mr. Borthwick,
    that the major draining of water from the pool  about which Ms. Davis
    complains mainly  had already taken place.

[63]

Secondly, there is no evidence to suggest that Ms. Davis pending law
    suit against the City, and which did not name Mr. Reynen as a personal
    defendant, had any bearing whatsoever on the decision to issue the Repair Order
    in August 2009.  I observe in passing that by the time the appeal judge heard
    the appeal, Herold J.  to the knowledge of the appeal judge  had already
    given his decision dismissing Ms. Davis action against the City for damages
    for the cost of the repairs.  Herold J. found that it was impossible to
    conclude that anything the City or its agents had done either on June 15th,
    2006, or August 10th, 2006, or at any other time during the course of the
    period covered by this litigation, did anything to cause any damage to Ms.
    Davis property.

[64]

Thirdly, there is nothing in the conduct attributed by Ms. Davis to Mr.
    Reynen that could found a conclusion that he had a personal bias towards her. 
    That evidence consists of essentially two things.  Ms. Davis states that she
    complained to the City in letters sent to the Mayor and to Mr. Reynen, but
    received no response.  The appeal judge accepted, however, that Mr. Reynen did
    not respond on the advice of his superior, the Chief Building Inspector, Mr.
    Poole.  Ms. Davis contends that she had a number of telephone conversations
    with Mr. Reynen during which he was discourteous to her (once suggesting that
    she had complained to the Mayor) and, in particular that she had two conversations
    with him on August 9 and 10, 2006 in which he refused her request that he
    postpone the August 10 attendance so that she could have her expert attend.

[65]

Mr. Reynen does not recall these conversations but there was some
    evidence on the late-filed audio tape that persuaded the appeal judge that the
    August 10 conversation took place.  Taken at its highest in favour of Ms.
    Davis, however, this evidence is not an indication that Mr. Reynen bore any
    personal
animus
towards her, or, indeed, that he was doing anything
    other than acting in accordance with his statutory duties as a City officer.

[66]

It must be remembered that Ms. Davis had failed to comply with Notices
    of Violation on May 31, 2006, August 2, 2006, June 22, 2007, August 13, 2007,
    May 26, 2008 and May 15, 2009 prior to the Repair Order being issued on May 26,
    2009.  If Mr. Reynen was being firm or even expressing frustration, his
    position was not unreasonable given the history.

[67]

The appeal judge made no finding of bad faith.

[68]

In the end, however, the conclusion of bias was simply wrong in law on
    this record, in my view.  Apart from what is dealt with above, there is nothing
    to suggest that Mr. Reynen had a personal interest in vindicating his
    previous decision.  Nor is there anything to indicate that in issuing the
    Repair Order he acted in his professional capacity other than on the basis of
    facts presented to him by Mr. Jamieson, the Property Standards Inspector who
    had attended at the Davis premises on May 14, 2009.  Those facts indicated that
    the conditions at the property posed a hazard to persons in the vicinity of the
    swimming pool in the event that further collapse of the structure occurred. 
    There was ample evidence to support that position.

[69]

The appeal judge concluded that Mr. Reynen was exercising a
    quasi-judicial function and that the traditional reasonable apprehension of
    bias test applied.  He cited the well-known statement of de Grandpré
J.
in
The Committee for Justice and Liberty  v. National
    Energy Board
, [1978 1 S.C.R. 369, at p. 394:

[T]he apprehension must be a reasonable one, held
    by reasonable and right-minded persons, applying themselves to the question and
    obtaining thereon the required information.  In the words of the Court of
    Appeal, that test is what would an informed person, viewing the matter
    realistically and practically  and having thought the matter through 
    conclude.  Would he think that it is more likely than not that [the
    decision-maker], whether consciously or unconsciously, would not decide
    fairly.

[70]

There is no jurisprudence of which I am aware dealing specifically with
    the test for bias that is applicable in circumstances where a municipal
    official issues a repair order or an order requiring remedial steps to be taken
    in order to comply with the municipalitys by-laws.  The authorities touch on
    the conduct of municipal tribunals that are making adjudicative decisions of
    one sort or another, or  at the other end of the spectrum  with municipal
    councillors or commissions that are exercising policy-making or purely
    administrative functions.

[71]

It is well settled, however, that the test for bias varies depending
    upon the functions of the decision maker and the question being decided.  For
    example, in
Newfoundland Telephone Co. v. Newfoundland (Board of
    Commissioners of Public Utilities)
, [1992] 1 S.C.R. 623, at pp. 636,
    638-39, Cory J. observed that there is a spectrum of decision-making tasks to
    be considered when determining the question of bias in the administrative law
    context, and the test to be applied is a flexible one, varying with the nature
    of the decision making body.  At the adjudicative end of the spectrum, the
    traditional reasonable apprehension of bias test will apply in full force. 
    At the other end of the spectrum, however  where the nature of the decision is
    more of an administrative, policy or legislative nature  the courts have held
    that a more lenient test, known as the closed mind test is applicable: see
    also
TransCanada Pipelines Ltd. v. Beardmore (Township)
(2000), 186
    D.L.R. (4th) 403 (Ont. C.A.), at paras. 147-150;
Pelletier v. Canada (A.G.)
,
    2008 FCA 1, [2008] F.C.R. 40, at para. 55;
Chrétien v. Canada
, 2008 FC
    802, [2009] 2 F.C.R. 417, affd 2010 FCA 283, 409 N.R. 193, at para. 67.

[72]

I do not know that it is helpful to characterize Mr. Reynens decision
    to issue the Repair Order as a quasi-judicial decision.  It does not fall
    neatly into either category described above, but rather somewhere in between. 
    The decision has some aspects of an adjudicative decision  it imposes a by-law
    standard upon a property owner and has some impact on the rights of the
    property owner in that respect.  However, it is primarily an enforcement
    decision, not an adjudicative one.  It seems to me that the appropriate
    approach in such circumstances is to apply the reasonable apprehension of bias
    standard, but not to do so in its strictest form.  It should take more for
    the reasonable person to perceive bias on the part of a municipal official
    issuing an order to enforce a by-law or similar regulation than would be the
    case where the decision made is closer to the adjudicative end of the scale.

[73]

On that basis, I do not see how the conduct attributed to Mr. Reynen 
    as described above  could, in law, lead to a reasonable and right-minded
    person, fully informed and viewing the matter in context, realistically and
    practically, to conclude that his decision was the product of a biased mind
    sufficient to invalidate the decision.  The test cannot be met in law where, as
    here, a municipal officer before issuing an impugned Repair Order, had done
    nothing more than be involved in an earlier decision respecting the same
    disputed by-law violation, engage in some testy telephone exchanges with an
    irate resident, and decline to postpone further action on the part of the City against
    the background of years of non-compliance by the resident. Mr. Reynen had an
    obligation, pursuant to the legislative and regulatory regime that governed his
    duties on behalf of the City, to enforce the Citys Property Standards By-law
    and the provisions of the
Building Code Act
.

[74]

I would set aside the appeal judges finding of bias against Mr. Reynen.

Disposition

[75]

For the foregoing reasons, I would allow the appeal, set aside the order
    of the appeal judge and restore the order of the Citys Property Standards
    Committee.

[76]

The City is entitled to its costs of the appeal, fixed in the amount of
    $12,000 inclusive of disbursements and all applicable taxes.  We do not think
    there should be any costs for the proceedings below.

R.A. Blair J.A.

I agree R.G. Juriansz
    J.A.

I agree S.E. Pepall J.

RELEASED:  December 06, 2011


