Voropanov v. Alberta (Municipal Affairs), 2012 ABQB 551

Court of Queen’s Bench of Alberta Citation: Voropanov v. Alberta (Municipal Affairs), 2012 ABQB 551 Date: 20120928 Docket: 1201 02800 Registry: Calgary Between: Dr. Igor Voropanov and Tatiana Voropanova (owners of European Club “Oak Leaf” in Calgary, AB) Applicants - and - Safety Services of Municipal Affairs (Government of Alberta) Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J. Strekaf _______________________________________________________ I. Introduction 1 .

This is an application for judicial review of a decision by the Chief Building Administrator (“the Administrator”) to deny a request from the Applicants pursuant to the Alberta Building Code (the “Code ”), as adopted under the Safety Codes Act , RSA 2000, c S- 1 (“ SCA ”). The Applicants run a Russian banya club known as the Oak Leaf. They applied to the Administrator for relaxation of a Code requirement stipulating that they construct a barrier-free shower space in their establishment.

The Administrator denied their application, citing that the construction of this space was both necessary and possible in the circumstances. The Applicants appeal that decision.

II. Relevant Legislation 2. Pursuant to

section 3.8 of the Code, certain buildings must comply with technical requirements for barrier-free design. These requirements are meant to enable persons with physical or sensory disabilities to access and use those buildings: SCA at s 2(2.1); Code at s 3.8.1.1. However,

section 2.2.1.4 of the Code permits the Chief Building Administrator to grant a relaxation of these requirements.

Section 2.2.1.4 states that: 1) The Chief Building Administrator may grant relaxation of one or more of the requirements of

Section 3.8. if an owner can demonstrate to the satisfaction of the Chief Building Administrator that

a) the specific requirements are unnecessary, or

b) extraordinary circumstances prevent conformance. [emphasis in original] III. Background Facts 3. The Applicants opened the Oak Leaf club in August, 2011. The club primarily includes a Russian banya, which is a specialized sauna that is heated to between 90 and 100 degrees Celsius. The club also offers a massage and aesthetics room, an ice hole (a small cold swimming pool), shower cabins, a changing area, a resting room, a café and a billiard area. The club does not serve drop-in customers. All users must first register as members of the club before they can access the sauna and other amenities.

Other services are offered as secondary services for sauna users and are available only to members. 4. Due to the sauna’s high temperatures, the Applicants cite certain health risks associated with the sauna. They have therefore developed a club policy that excludes anyone from becoming a member who they believe might have a heightened risk, including individuals who utilize wheelchairs. This policy of denying club membership to certain individuals, including those who use wheelchairs, was not challenged by the Respondent.

The parties agreed that I am to proceed on the assumption that this is a legally valid policy. 5. In August, 2011, the City of Calgary informed the Applicants that they must incorporate a shower space large enough to accommodate wheelchairs into their establishment as part of their renovation of the interior of the club. Upon consultation with the City, the Applicants learned that they could apply to the Administrator for relaxation of this requirement. They submitted their application for relaxation on August 22, 2011 on the basis that the accommodation was impossible and unnecessary.

They argued that it was impossible to incorporate the shower space into their facility due to the Oak Club’s small size and that it was unnecessary in light of their membership restrictions. 6. The application was considered by the Administrator, Chris Salvian, P. Eng., Safety Services of Municipal Affairs Chief Building Administrator. His reasons for dismissing the Applicants’ request for relaxation are explained throughout a series of letters exchanged between the parties. These responses are summarized below. The Administrator’s Decision 7.

On September 9, 2011, the Administrator sent a letter to the Applicants indicating that the conditions for granting a relaxation to the provision of a barrier-free washroom had not been met. He concluded that the specific requirements were necessary, and because the club was under renovation at the time, incorporation of the necessary barrier-free shower space was possible. He further stated that, “[o]nly in cases where provisions are not necessary or where there are extraordinary circumstances am I empowered to grant a relaxation.

Neither case has been made to allow me to grant a relaxation.” He indicated however that should new information become available, the Applicants could submit the information for further consideration. 8. Mr. Voropanov responded in a November 7, 2011 letter, indicating that the Oak Leaf could not make the washroom space wider because it would require a narrowing of the corridor, which he said would violate fire inspection regulations. 9. The Administrator replied in his November 21, 2011 letter that “[t]he specific requirements are necessary since the Banya Sauna only constitutes a portion of the facility.

There are other areas where persons with physical disabilities could possibly be present.” Furthermore, he found that, “[t]he shower in the [Aesthetician] and Massage area can easily be constructed as a barrier-free unit which will satisfy the building code requirements.” The Administrator added that, given the type of occupancy involved at the Oak Leaf and the floor area limit, the Applicants were not required to have multiple exits for the purposes of fire inspection regulations, so the

washroom could be expanded to include corridor space if needed. 10. Mr. Voropanov responded again on December 5, 2011 with a letter stating that because individuals who use wheelchairs aredenied membership to the club, the barrier-free accommodations are unnecessary. He attached a copy of the club’s policy to support hiscontention, and again requested relaxation of the requirement. 11. The Administrator’s final response, sent on January 17, 2012, indicated that the additional information, namely the clubpolicy membership restrictions, was insufficient to meet the conditions for relaxation of the requirement.

The Administrator added that,“[t]he specific requirements are necessary as club policy could be changed and it is our opinion that there are areas where persons withphysical disabilities would possibly be present.” He again cited his reasons for finding that the accommodation was possible within thespatial limits of the club. On this basis, the Administrator denied the request for relaxation. IV. Issues 12. The issues are as follows: 1. What is the appropriate standard of review of the Administrator’s decision? 2. Was the Administrator’s decision reasonable? Issue 1 - The Appropriate Standard of Review 13.

In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the Supreme Court of Canada enunciated two standards ofjudicial review: correctness and reasonableness. The various factors for determining the applicable standard of review should beconsidered together. A contextual approach is required: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR339. 14. The nature of the question at issue here suggests that the Court should review the Administrator’s decision with deference.

Inorder to determine whether the application before him met the requirements for relaxation, the Administrator had to make findings offact and then apply the relevant provision of the Code to those facts. This is an issue of mixed fact and law: Dunsmuir at para 164. 15. Additionally, the legislature has granted discretion to the Administrator in his decision-making through the wording of Codesection 2.2.1.4, which stipulates that he “may”, rather than “must”, grant relaxations when the conditions cited in this

section are met.The Supreme Court has stated that “...questions of fact, discretion and policy as well as questions where the legal issues cannot be easilyseparated from the factual issues generally attract a standard of reasonableness...”: Dunsmuir at para 51. 16. The Respondent submits that, so long as the Administrator applies the correct legal test, then the discretion that he exercised inreaching his conclusion should be reviewed for reasonableness.

This submission stems from the recent Supreme Court of Canadadecision Halifax (Regional Municipality) v Canada (Public Works and Government Services), 2012 SCC 29 at para 43, in which theCourt reviewed a Minister’s exercise of discretion in applying a legal test for reasonableness. 17. Another factor that assists the Court to determine the proper standard of review is the purpose of the decision-maker. If thestatutory purpose requires the decision-maker to balance multiple interests or considerations, the Court should show greater deference:see e.g.

Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 SCR 226 at para 30; Pushpanathan vCanada (Minister of Citizenship and Immigration), (SCC), [1998] 1 SCR 982 at para 36. The relevant provisions ofthe Code help to ensure that new and renovated buildings are constructed barrier-free, thus allowing individuals with physical andsensory disabilities to have access to and use of buildings: Code at s 3.8.1.1.

The Administrator’s role in deciding whether or not toapprove a relaxation application therefore involves balancing the interests of individuals with disabilities and those of business owners.Such balancing of interests weighs in favour of greater deference. 18. A final important consideration for determining the appropriate standard of review is the expertise of the decision-maker.Where a decision-maker has more expertise in deciding an issue than the Court, that decision-maker should be afforded deference:Pushpanathan at paras 32-35; Dr. Q at paras 28-29. 19.

The decision-maker in this case does have a special background and experience in dealing with matters involving the barrier-free

requirements and relaxations defined in the Code. 20. Taking all of the above factors into consideration, I find that the nature of the question and the purpose and expertise of thedecision-maker entitle the Administrator’s decision to deference. The appropriate standard of review is reasonableness. Issue 2 - Was the Administrator’s Decision Reasonable? 21. A reasonable decision is one that demonstrates “justification, transparency and intelligibility” and falls “within a range ofpossible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at para 47.

A reasonable decision is onethat demonstrates “justification, transparency and intelligibility” and falls “within a range of possible, acceptable outcomes which aredefensible in respect of the facts and law”: Dunsmuir at para 47. 22. The Administrator’s reasons can assist me to determine whether his decision was a reasonable one. As Abella J wrote for aunanimous Supreme Court in Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board), 2011SCC 62, 3 SCR 708 at paras 14 and 16, [R]easons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possibleoutcomes. ... In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it todetermine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. 23.

The Respondent submits that judicial review should focus specifically on the decision-making process, rather than the decisionitself, citing Bendzan v Law Society of Alberta (1997), (AB KB), 205 AR 278, a decision addressing issues ofprocedural fairness. However, on a substantive judicial review, the outcome of the Administrator’s decision is relevant to the extent thatit must fall within a range of acceptable outcomes defensible with regard to the facts and the law.

As recently stated by Cromwell J for aunanimous Supreme Court, the “[r]easonableness review is concerned both with the transparency and intelligibility of the reasons givenfor a decision and with the outcome of the decision-making process”: Halifax at para 44. 24. A decision-maker’s reasons do not have to be perfect, so long as the Court can understand why the decision-maker made itsdecision and can assess whether that decision falls within a range of acceptable outcomes: Nurses Union at paras 16-18.

Furthermore,when conducting a reasonableness review where only limited reasons are provided, it is appropriate for the Court to consider the reasonsthat could have been offered for the decision, in light of the available evidence: Alberta (Information and Privacy Commissioner) vAlberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654 at para 54; Dunsmuir at para 48. 25. Turning to this case, I must determine whether the Administrator’s decision that a barrier-free shower space was necessary andpossible to incorporate into the Oak Club was a reasonable decision. 26.

The Administrator explained his decision-making process and cited the facts that he relied upon to make his decision throughoutthe parties’ written correspondence. As noted above, the Code allows him to grant relaxations when he finds that the barrier-freerequirements are either unnecessary or that extraordinary circumstances prevent conformance. He concluded that neither of theserequirements were met based on his assessment of the facts. 27.

Dealing first with the latter determination, the Administrator decided that it was possible for the Applicants to fulfill the barrier-free requirements based on several factors. In particular, he considered: the size of the club; the fact that the club was under renovation atthe time and therefore changes could be made; his determination that other space in the Oak Club could be altered to allow for theaccommodation; and, the fact that for its size and occupancy, the facility is not required to keep its multiple exits. 28.

The mandated alterations might require the Applicants to expand a corridor, thus closing the rear exit of their club, or to narrowthe size of the massage and aesthetics room. The Applicants argue that this would prevent the Oak Club customers from accessing snowbaths in the winter, or would make the massage room too small for its current use, thus making the accommodation impossible. 29. The Administrator’s decision that these did not constitute extraordinary circumstances that prevented conformance with the

barrier-free requirement was based on facts that were drawn from the evidence before him. Given the facts upon which he based hisdecision and the Administrator’s expertise and discretion to determine when a relaxation should be granted, this aspect of his decisionwas not unreasonable despite the potential inconvenience to the Applicants. 30. Turning next to the Administrator's consideration of whether the barrier-free requirements were unnecessary, the Administratorrelied on several findings of fact in reaching the conclusion that the requirements were necessary.

In particular, he stated in his final letterto the Applicants that it was his opinion that there are areas in the club where persons with physical disabilities could possibly be present.However, the evidence before the Administrator supports an opposite finding of fact - namely that if individuals who utilize wheelchairscannot become members, and the Oak Leaf is accessible only to members and not to the public, then an individual who uses awheelchair would not appear to have the opportunity to utilize the facility. 31.

The Administrator also found that the barrier-free requirements were necessary because club policy could change in the future.However, the information before the Administrator included submissions from the Applicants that the Oak Club would not permitindividuals who they perceived to have specific a health risks associated with the use of the sauna to become members. This was the onlyevidence before the Administrator with respect to the policy and it does not support the Administrator’s findings that the Applicantsmight decide in the future to change their policy. 32.

While a Court can consider other reasons that could be offered for a particular decision when few are given, it cannot formulateevidence that might lend support to a particular conclusion. A reasonable finding of fact must be supported by some form of evidence:WW Lester

(1978) Ltd v United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, (SCC), [1990] 3 SCR 644 at para 94. A decision that has no evidentiary basis is an unreasonable decision: Toronto(City) Board of Education v Ontario Secondary School Teachers’ Federation, District 15, (SCC), [1997] 1 SCR 487at para 44. A decision-maker cannot reasonably apply the law to a set of facts, when these facts are not based on evidence before him. 33.

While the Administrator’s reasons themselves appear transparent and intelligible, I cannot see how they are reasonably basedon the evidence that was before him. Because his decision stems from findings of fact that have no evidentiary basis, it does not fit withinthe range of acceptable possible outcomes. His decision in this case was therefore unreasonable. As a result, the Administrator's decisionis quashed and remitted back for reconsideration. 34. The parties may arrange to address me with regard to costs if they are unable to agree.

Heard on the 25th day of July, 2012.Dated at the City of Calgary, Alberta this 28th day of September, 2012. J. StrekafJ.C.Q.B.A. Appearances:Dr. Igor Voropanov for the Applicants Christine Nugent and Wilma Shim for the Respondent