City of Mississauga v. Peel Standard Condominium Corporation #833, 2013 ONCJ 593

Citation: City of Mississauga v. Peel Standard Condominium Corporation #833 , 2013 ONCJ 593 IN THE MATTER OF the Building Code Act, 1992, S.O. 1992, c. 23 . Between The Corporation of the City of Mississauga prosecutor and Peel Standard Condominium Corporation #833 defendant Ontario Court of Justice Mississauga, Ontario Quon J. P. Reasons for Judgment Trial held: June 20, 2012, July 26, 2013, and August 23, 2013 Judgment rendered: November 1, 2013 Charges: “Building not in accordance with approved plans”, contrary to s. 36(1) (

c) of Building Code Act, 1992 , S.O. 1992, c. 23 (2 counts). “Failing to comply with an order issued on February 25, 2010”, contrary to s. 36(1) (

b) of Building Code Act, 1992 , S.O. 1992, c. 23 (2 counts).

Counsel: C. Mariuz, prosecutor for the City of Mississauga W. Pazzula, counsel for the defendant Cases Considered or Referred To: Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., 2006 SCC 12 , [2006] S.C.J. No. 12 (QL) (S.C.C.). Maitland Valley Conservation Authority v. Cranbrook Swine Inc. (2003), (ON CA), 64 O.R. (3d) 417 (O.C.A.), perAbella, Macpherson, and Simmons JJ.A. R. v. Allard, (QC CA), [2001] 155 C.C.C. (3d) 206 (Q.C.A.). R. v. Bourgault, [1999] S.J. No. 707 (QL) (Sask. Q.

B) R. v. Cancoil Thermal Corp. (1986), (ON CA), 27 C.C.C. (3d) 295, [1986] O.J. No. 290 (QL) (O.C.A.), per Martin,Lacourciere and Goodman JJ.A. R. v. Bucci Hair Boutique Inc., [2009] O.J. No. 5770 (QL), 2009 ONCJ 647 (O.C.J.), per Bonas J.P. R. v. Jorgensen, (SCC), [1995] 4 S.C.R. 55 (S.C.C.). R. v. Keough, [2006] N.J. No. 261(QL) (N.L.S.C.). R. v. Sault Ste. Marie (1978), (SCC), 85 D.L.R. (3d) 161, 40 C.C.C. (2d) 353 (S.C.C.). R. v. Shell Canada Ltd., 1999 ABPC 105 , [1999] A.J. No. 1297 (QL) (Alta. Prov. Ct.). R. v. Starosielski, [2001] A.J. No. 1453 (QL) (Alta. Prov. Ct.). R. v. Walker, [1989] N.S.J.

No. 132 (QL) (N.S.Co.Ct.) R. v. Vastis, [2006] O.J. No. 1698 (QL), [2006] ONCJ 151 (O.C.J.), per Woloschuk J.P. Riverside Developments Bobcaygeon Ltd. v. Bobcaygeon (Village), [2004] O.J. No. 151 (QL) (S.C.J.O), per Glass J. Riverside Developments Bobcaygeon Ltd. v. Bobcaygeon (Village), [2005] O.J. No. 3326 (QL) (O.C.A.), per Feldman, Gillese andLaForme JJ.A.

Thunder Bay (City) v. Bodnar , [2007] O.J. No. 5426 (QL) , 2007 ONCJ 686 (O.C.J.) , per Leaman J.P. Toronto (City) v. Barrasso , [2006] O.J. No. 4829 (QL) , 2006 ONCJ 463 (O.C.J.) , per Quon J.P. Wood v. Hungerford (Township) , [2004] O.J. No. 4472 (QL) (S.C.J.O) , per Hackland J. Statutes, Regulations and Rules Cited: Building Code Act,1992 , S.O. 1992, c. 23, ss. 1.1(6), 1.1(7) , 8(12) , 8(13) , 8(14) , 10.2(1) , 11 , 12(2) , 36(1) (a), 36(1)(b), 36(4) , 36(8) . Building Code ( Building Code Act,1992) , O. Reg. 350/06, ss. 1.1(3) , 1.3.5.1 , 1.3.5.1(2) , 1.4.1.2(1) (b) .

Condominium Act, 1998 , S.O. 1998, c.19, ss. 2(3)(c), 42(1) , 43(1) , 44(1) , 44(2) , 44(4) , 44(8) , 44(9) (b), 44(10) . Ontario New Home Warranties Plan Act , R.S.O. 1990, c. O.31, ss. 13(1), 14 , 17(1) , Exhibits entered: Exhibit "1" - Document Brief Book (volumes 1 and 2) compiled and submitted by the defendant’s counsel. Volume 1 is comprised of 26 separate documents found in Tabs 1 to 26. Most of these 26 documents in Volume 1 were also individually entered as separate exhibits. Volume 2 is comprised of 16 documents found in Tabs 27 to 42.

Exhibit "1A" - copy of the Application for a Permit to Construct or Demolish 3 townhouse units to be built at municipal addresses 2635, 2637 and 2639 Rogers Road, Mississauga (Building “B”) that is numbered 06-726 and submitted to the City of Mississauga on April 7, 2006. The Application also indicates that the Builder is Bob Bray of Real-T-Building Inc., 6850 Millcreek Drive, Mississauga and the Owner is Real-T-Building Inc., 6850 Millcreek Drive, Mississauga.

It also indicates the purpose of the application is new construction, the proposed use of the building is to be residential, and the description of proposed work is new residential development Block “B”/BLDG B, and that the proposed construction is for a new home as defined in the Ontario New Home Warranties Plan Act and that registration is required under the Ontario New Home Warranties Plan Act with the registration number being 36470 – Real-T- Building Inc.

The application was also signed by an authorized agent of the owner named Raj Mangat of RSM Architecture Inc. of #45, 6625 Kitimat Road, Mississauga, and dated April 6, 2006. (1 page). Exhibit "1B" - copy of the Application for a Permit to Construct or Demolish 7 townhouse units to be built at municipal addresses 4009, 4011, 4013, 4015, 4017, 4019, and 4021 Glen Erin Drive, Mississauga (Building “A”) that is numbered “06-“ [this is the same application for a permit document numbered 06-726 contained in Tab 6 of the Document Brief entered as Exhibit “1”] and submitted to the City of Mississauga on April 7, 2006.

The Application also indicates that the Builder is Bob Bray of Real-T-Building Inc., 6850 Millcreek Drive, Mississauga and the Owner is Real-T-Building Inc., 6850 Millcreek Drive, Mississauga.

It also indicates the purpose of the application is new construction, the proposed use of the building is to be residential, and the description of proposed work is new residential development Block “A”/BLDG A, and that the proposed construction is for a new home as defined in the Ontario New Home Warranties Plan Act Act and that registration is required under the Ontario New Home Warranties Plan Act with the registration number being 36470 – Real-T-Building Inc.

The application was also signed by an authorized agent of the owner named Raj Mangat of RSM Architecture Inc. of #45, 6625 Kitimat Road, Mississauga, and dated April 6, 2006. (1 page). Exhibit "2" - a set of construction drawings and plans that were submitted for residential development by Real-T-Building Inc. with the two Building Permit Applications for the 3 townhouse units that were built at Rogers Road, Mississauga and for the 7 townhouse

units that were built at Glen Erin Drive, Mississauga, which were approved by the City of Mississauga that includes site plans, building A/A-1 foundation plan, building A/A-1 basement plan, unit 1 – Building A Ground, 2 nd , 3 rd floor plans, unit 2&4 –Building A floor plans, unit 3 – Building A floor plans, unit 5 – Building A floor plans, unit 6 – Building A floor plans, unit 7 – Building A-1 ground & second floor plans, building A/A-1 roof plan, Building A east and west elevations, Building A/A-1 north and south elevations, Building A building section, building B foundation plan, building B ground floor plan, building B second floor plan, building B third floor plan, building B roof plan, building B elevations, building

section through unit 10 Building B,

section details, details, basement and ground floor plans H.V.A.C., second floor plan H.V.A.C., basement and ground floor plans Building B H.V.A.C., second and third floor plans building B H.V.A.C., mechanical schedules and notes, and framing and truss plans (136 pages). Exhibit "3A" – copy of Building Permit Notice #BP06726 issued on October 20, 2006, by the City of Mississauga Planning and Building Department for 2635 Rogers Road, Mississauga for the three-townhouse condominium row development (Block

B) to owner/contractor/builder: Real-T-Building Inc., 6850 Millcreek Drive, Mississauga, “as per drawings” (1 page). Exhibit "3B" – Copy of Building Permit Notice #BP06727 issued on October 20, 2006, by City of Mississauga Planning and Building Department for 4009 Glen Erin Drive, Mississauga for the seven-townhouse condominium row development (Block

A) to owner/contractor/builder: Real-T-Building Inc., 6850 Millcreek Drive, Mississauga, “as per drawings” (1 page). Exhibit "4" - Copy of Declaration and Description document made pursuant to the Condominium Act, 1998 , (registered as PR1504172), for the ten-unit low-rise townhouse buildings with a Certificate of Receipt by the Land Registrar for Peel

(43) Brampton) that had been date stamped on July 29, 2008, at 14:23. The declarant for Peel Standard Condominium Plan No. 833 had been Real-T- Building Inc.. The declaration created a freehold condominium corporation that constituted a standard condominium corporation municipally located at 2353 Rogers Road, Mississauga. Greg Gilmour as the President of Real-T-Building Inc. executed the declaration on behalf of the corporate declarant, Real-T-Building Inc. on June 17, 2008. (28 pages).

Exhibit "5A" - Copy of the Parcel Registration Abstract (19833-001) and copy of Transfer Deed registered on August 14, 2008, with Land Registry Office #43 showing Real-T-Building Inc.’s transfer of the townhouse unit to the new owners for 4021 Glen Erin Drive, Mississauga (Unit #1) obtained from Service Ontario on June 24, 2011, at 11:01:01 (4 pages).

Exhibit "5B" - Copy of the Parcel Registration Abstract (19833-002) and copy of Transfer Deed registered on August 14, 2008, with Land Registry Office #43 showing Real-T-Building Inc.’s transfer of the townhouse unit to the new owners for 4019 Glen Erin Drive, Mississauga (Unit #2) obtained from Service Ontario on June 24, 2011, at 10:57:49 (4 pages).

Exhibit "5C" - Copy of the Parcel Registration Abstract (19833-003) and copy of Transfer Deed registered on August 14, 2008, with Land Registry Office #43 showing Real-T-Building Inc.’s transfer of the townhouse unit to the new owners for 4017 Glen Erin Drive, Mississauga (Unit #3) obtained from Service Ontario on June 24, 2011, at 10:54:03 (4 pages).

Exhibit "5D" - Copy of the Parcel Registration Abstract (19833-004) and copy of Transfer Deed registered on August 14, 2008, with Land Registry Office #43 showing Real-T-Building Inc.’s transfer of the townhouse unit to the new owners for 4015 Glen Erin Drive, Mississauga (Unit #4) obtained from Service Ontario on June 24, 2011, at 10:49:24 (4 pages).

Exhibit "5E" - Copy of the Parcel Registration Abstract (19833-005) and copy of Transfer Deed registered on August 14, 2008, with Land Registry Office #43 showing Real-T-Building Inc.’s transfer of the townhouse unit to the new owners for 4013 Glen Erin Drive, Mississauga (Unit #5) obtained from Service Ontario on June 24, 2011, at 10:45:31 (4 pages). (4 pages).

Exhibit "5F" - Copy of the Parcel Registration Abstract (19833-006) and copy of Transfer Deed registered on August 14, 2008, with Land Registry Office #43 showing Real-T-Building Inc.’s transfer of the townhouse unit to the new owners for 4011 Glen Erin Drive, Mississauga (Unit #6) obtained from Service Ontario on June 24, 2011, at 11:15:52 (4 pages). (4 pages).

Exhibit "5G" - Copy of the Parcel Registration Abstract (19833-007) and copy of Transfer Deed registered on August 14, 2008, with Land Registry Office #43 showing Real-T-Building Inc.’s transfer of the townhouse unit to the new owners for 4009 Glen Erin Drive, Mississauga (Unit #7) obtained from Service Ontario on June 24, 2011, at 10:21:42 (4 pages) (4 pages).

Exhibit "5H" - Copy of the Parcel Registration Abstract (19833-008) and copy of Transfer Deed registered on August 14, 2008, with Land Registry Office #43 showing Real-T-Building Inc.’s transfer of the townhouse unit to the new owners for 2639 Rogers Road, Mississauga (Unit #8) obtained from Service Ontario on June 24, 2011, at 11:12:35 (4 pages).

Exhibit "5I" - Copy of the Parcel Registration Abstract (19833-009) and copy of Transfer Deed registered on August 14, 2008, with Land Registry Office #43 showing Real-T-Building Inc.’s transfer of the townhouse unit to the new owners for 2637 Rogers Road, Mississauga (Unit #9) obtained from Service Ontario on June 24, 2011, at 11:07:59 (4 pages).

Exhibit "5J" - Copy of the Parcel Registration Abstract (19833-010) and copy of Transfer Deed registered on August 14, 2008, with Land Registry Office #43 showing Real-T-Building Inc.’s transfer of the townhouse unit to the new owners for 2635 Rogers Road, Mississauga (Unit #109) obtained from Service Ontario on June 24, 2011, at 11:04:45 (4 pages).

Exhibit "6A" - Copy of Order to Comply #119194 that had been issued on February 25, 2010, by Stasys Obelienius, building inspector for City of Mississauga, in regards to units 1, 2, 3, 4, 5, 6, and 7 for the seven Glen Erin Drive townhouses pursuant to s. 12(2) of the Building Code Act, 1992 , and indicating that the order was being sent to the address of Real-T Building Inc., at 6850 Millcreek Drive, Mississauga and also to Peel Standard Condominium Corporation 833 located at 7-4009 Glen Erin Drive, Mississauga.

The Order to Comply also contained the description and the location of deficiencies and the action that was required to comply with the Order and the compliance date of May 25, 2010. The description and location of the deficiency in the Order were in respect to the alterations that had been made to the front entrance elevation and the deck design and construction details at units 1, 2, 3, 4, 5, 6, and 7 that caused the construction not to be within the scope of the approved set of building plans under building permit BP9NEW06-727.

The Order to Comply also indicated that the required action and compliance date were the following:

(1) Comply with Act and Code Before 2010-05- 25

(2) Obtain a Revision to the Building Permit or Revise Construction or construct within the scope of the approved set of building plans (1 page).

Exhibit "6B" - Copy of Order to Comply #119193 that had been issued on February 25, 2010, by Stasys Obelienius, building inspector for City of Mississauga, in regards to units 8, 9, and 10 for the three Rogers Road townhouses pursuant to s. 12(2) of the Building Code Act, 1992 , and indicating that the order was being sent to the address of Real-T Building Inc., at 6850 Millcreek Drive, Mississauga and also to Peel Standard Condominium Corporation 833 located at 7-4009 Glen Erin Drive, Mississauga.

The Order to Comply also contained the description and the location of deficiencies and the action that was required to comply with the Order and the compliance date of May 25, 2010. The description and location of the deficiency in the Order were in respect to the alterations that had been made to the deck connections at units 8, 9, and 10, that had caused the construction not to be within the scope of the approved set of building plans under building permit BP9NEW06-726. The Order also indicated that the required action and compliance date were to

(1) Comply with Act and Code Before 2010-05-25

(2) Obtain a Revision to the Building Permit or Revise Construction or construct within the scope of the approved set of building plans (1 page). Exhibit "7" - copy of a letter sent by A. Robeznieks, P.Eng, Director, Building Division of Planning and Building Department of the City of Mississauga, dated November 23, 2010, to Real-T Building Inc., 6850 Millcreek Drive, Mississauga, regarding 4009 Glen Erin Drive (units 1, 2, 3, 4, 5, 6, 7) informing the builder that failure to comply with the Inspector’s Order may lead to legal action being started without further notice.

Letter also indicates that the same letter was “cc’ed” to PSCP 833 at 7-4009 Glen Erin Drive, Mississauga (1 page). Exhibit "8" - copy of Decision and Order dated December 21, 2012, issued by Ken Selby, Presiding Member of the Licence Appeal Tribunal in respect of the appeal by P.S.C.C. #833 of Ontario New Home Warranties Plan Act claim that had been disallowed by the Tarion Warranty Corporation (15 pages).

Exhibit "8A" - copy of photograph taken by Thomas Schmaus in the Fall of 2007 (October or November) showing living room and looking east with view of the unfinished deck through sliding glass doors with the wife of Thomas Schmaus in the foreground (1 page). Exhibit "8B" - copy of photograph taken by Thomas Schmaus in the Fall of 2007 (October or November) taken from second floor looking down and showing an unfinished deck and a ravine in the background (1 page).

Exhibit "8C" - copy of photograph taken by Thomas Schmaus in the Fall of 2007 (October or November) of the ensuite bathroom with the wife of Thomas Schmaus in the foreground and also showing the unfinished deck and the finished deck of Unit 10 of Building A, which can be seen through a window (1 page).

Exhibit "9" - copy of a follow up review letter dated January 4, 2010, that had been authored by Bruce Pichler, P.Eng., of Pichler Engineering, Grafton Ontario, and addressed to John Gersus, Property Manager, of Regal Property Management Ltd. and re: PSCP 833, setting out the outstanding incomplete or partially completed items for PSCP 833 as had been referenced and listed in PSCP 833’s Performance Audit dated June 25, 2009.

The author also indicates the letter is undertaken on behalf of the Board of Directors for Peel Standard Condominium Plan 833 and that their concern is that based on the original drawings that Pichler had received that Pichler suspects the documentation for alternative solutions were not provided to the City Building Department. Pichler also comments that if the alternative solutions had been provided to the City then Pichler would have been provided with the actual “AS-built” (= as constructed) drawings at the time of the Performance Audit (8 pages).

Exhibit "10" - copy of a letter dated July 5, 2010, authored by Bruce Pichler, P.Eng., of Pichler Engineering, Grafton Ontario, and addressed to Leo Cusumano, Manager, Inspection Services of the Building Division for the City of Mississauga Planning and Building Department re: PSCP 833, Orders to Comply 119193 and 119194, indicating that a review of the “as built” drawings received by the Board of PSCP 833 as part of the “Supplementary Information to Application for a Permit to Construct or Demolish” dated March 5, 2010 are inaccurate with respect to what has been constructed and only two of the seven drawings were noted to be “as built” and that these two “as-built” drawings (D-02 and D-03) also have inaccuracies.

The author further writes that he has advised the Board of Directors of PSCP 833 not to accept the “as built” drawings received (3 pages). 1. INTRODUCTION [ 1 ] It would not be unreasonable for most people who have purchased a new home in Ontario, to rightfully assume that their new home would have been constructed properly and according to the minimum standards set out in Ontario’s Building Code , O.

Reg. 350/06 ; that their new home would have been fully and properly inspected by municipal building officials; and that it would have indeed passed municipal inspection and met those standards set out in the Building Code, before they were permitted to occupy and take ownership of that new home.

And, if there were to be any defects in workmanship or materials, unauthorized substitution of materials, or Building Code violations in the construction of their new home, which the purchasers happen to discover within one year after the date when the purchasers obtain the legal ownership and possession of their new home from the builder, then they could still make a warranty claim to the Tarion Warranty Corporation (“Tarion”), who administers the Ontario New Home Warranties Plan Act , R.S.O. 1990, c.

O.31 , to have those defects or problems repaired or fixed. [ 2 ] Unfortunately, this is not what had happened to the purchasers of the ten townhouses in a condominium development located at the northeast corner of Glen Erin Drive and Rogers Road in the City of Mississauga, which had been built and developed by an Ontario company named Real-T-Building Inc. (“builder-developer”).

Instead of being able to quietly enjoy residing in their new townhouses, the purchasers, who had obtained legal title to their respective townhouses on August 14, 2008, have had to undergo immeasurable stress, turmoil, and frustration in their lives, since discovering that the builder-developer of their townhouse complex did not construct certain elements of their complex in accordance with the original construction drawings or architectural plans that had been approved by the City of Mississauga Planning and Building Department, and upon which two separate building permits had been based on and issued for the construction of those ten townhouses. [ 3 ] Moreover, the purchasers have had to also collectively outlay substantial amounts of their time and money for legal and engineering consulting fees in taking on three legal battles related to the builder-developer’s unauthorized alterations.

First of all, the purchasers have had to retain legal representation for their legal dispute with the builder-developer, who had not obtained municipal approval for those alterations before proceeding with constructing those elements that were not in accord with the approved plans, and who had also refused or were unable to change or fix those altered elements, so that the townhouse complex would comply with the approved plans.

For their second legal engagement, the purchasers have had to collectively defend against four Building Code Act, 1992 charges in respect to those unauthorized alterations made by the builder-developer that were laid by the City of Mississauga against Peel Standard Condominium Corporation #833 (“P.S.C.C. #833”), which legally is responsible for maintaining the buildings and common areas of their townhouse complex, and to which the purchasers are individual members of that condominium corporation.

And, for their third legal battle, which also included an appeal to the Licence Appeal Tribunal, the purchasers have had to endure a long legal fight with Tarion, who had denied their claim under the statutory warranty program provided for new homes under the Ontario New Home Warranties Plan Act to have Tarion fix those unapproved and unpermitted alterations made by the builder-developer in the construction of the townhouse project. [ 4 ] Furthermore, the purchasers of those ten townhouses had been also allowed to occupy and take legal ownership of their respective townhouses before the City of Mississauga Planning and Building Department had done a final exterior inspection of the townhouse development because the builder-developer of those townhouses had never made such a request to the Building Department to conduct that final exterior inspection.

Those unauthorized alterations made by the builder-developer were eventually noticed by a City of Mississauga building inspector, but only after the purchasers had complained to and informed the City of Mississauga about those unauthorized alterations, which would have likely been discovered during a final exterior inspection.

Moreover, as of August 23, 2013, which had been the last day of the trial in regards to those four charges, the final exterior inspection had still not been done or undertaken by the City of Mississauga, despite the ten purchasers of those townhouses having physically occupied and living in their respective townhouses since the years 2007 and 2008, when they were permitted by the builder-developer to occupy their respective townhouses as tenants-at-will while waiting for the townhouse development to be legally created and registered as a condominium

corporation under the Condominium Act, 1998 , S.O. 1998, c. 19.

More important, this final exterior inspection had not been done by the City of Mississauga before the purchasers had become the actual owners of their respective townhouses on August 14, 2008, which is the date that legal title to their respective townhouse units had been registered and transferred to them by the builder-developer. [ 5 ] Also, from the date the purchasers had been first allowed to live in and occupy their respective townhouses in 2007 and 2008 to the last day of the trial on August 23, 2013, the builder-developer has failed to provide certified “as-built” drawings from an architect or professional engineer to either the City of Mississauga or to the purchasers, which accurately reflects what had been actually constructed by the builder-developer in respect to that townhouse development. [ 6 ] In addition, when the purchasers became collectively aware of the unauthorized alterations made by the builder-developer in the construction of certain elements of their townhouse complex, one of the purchasers made a complaint to the City of Mississauga on September 1, 2009, about those unauthorized alterations.

A City of Mississauga building inspector then attended at their townhouse complex on September 10, 2009, and had personally observed the alterations that had been made by the builder-developer that were not in accord with the approved building plans.

Specifically, the inspector had observed that the builder-developer had altered or made material changes to the guardrail and deck covering for the exterior deck attached to the seven townhouses in the complex referred to as Building “A” that is on Glen Erin Drive; a material change to the method of attachment of the exterior deck for Building “A” and to the method of attachment of the exterior deck to the three townhouses in the complex referred to as Building “B” that is on Rogers Road; and a material change to the design of the front entrance canopies for the seven townhouses in Building “A”, before it had obtained authorization from the City of Mississauga Planning and Building Department to make those material changes or before it had obtained or been able to obtain a revision to the building permits for those changes. [ 7 ] Furthermore, after the City of Mississauga had become specifically aware that the builder-developer had constructed elements that were not authorized or in compliance with the approved plans, the Building Department then informed the builder-developer about those unauthorized alterations and the need to rectify them.

The builder-developer then informed the City of Mississauga that it was working on resolving those unauthorized alterations and had indeed attempted to submit an application to revise the building permits on December 1, 2009.

However, the builder-developer’s application had not been accepted by the City of Mississauga Planning and Building Department, as the builder-developer was no longer the legal owner of the townhouse development and had been required to obtain authorization from the purchasers, who were the legal owners of the ten townhouses after August 14, 2008 (and who were acting collectively through P.S.C.C. #833), to have the application submitted on their behalf.

However, the purchasers did not provide that required authorization to the builder-developer because they had been advised by the engineer that conducted a performance audit inspection of the townhouse complex that they should not authorize or give consent to the builder-developer to submit on their behalf any “as-built” drawings or to apply for a revision to the two building permits because the unauthorized alterations that were made by the builder-developer were not in accord with the approved plans or the Ontario Building Code and that the purchasers would be ultimately liable for the cost of fixing the altered elements or incur increased maintenance costs during the life of those altered elements or be held liable for any harm caused by the unauthorized alterations. [ 8 ] Then, after approximately five months had passed and there had been no changes made to the exterior decks or front entrance canopies to make them comply with the approved plans or that an application to revise the building permits had been submitted on behalf of and authorized by the purchasers, so that if the unauthorized alterations were found to comply with the Building Code and approved of by the City of Mississauga, then a revision to the approved plans would be authorized for the two building permits that had been issued for the construction of the ten townhouses, which consequently would make those altered elements legally acceptable.

As a consequence of there being no changes made to the exterior decks or front entrance canopies or a revision application submitted by or on behalf of the purchasers, a City of Mississauga building inspector then decided to issue Orders to Comply on February 25, 2010, pursuant to s. 12(2) of the Building Code Act, 1992 , to both the builder-developer and to P.S.C.C. #833, directing them to either

(1) Comply with the Building Code Act, 1992 or the Building Code before May 25, 2010, or

(2) Obtain a Revision to the Building Permits or Revise Construction or construct within the scope of the approved set of building plans, in respect to the “front entrance elevation and the deck design and construction details have been altered causing construction not to be within the scope of the approved set of building plans” under the two building permits (see Ex. 6A and Ex. 6B). [ 9 ] After the Orders to Comply had been issued, the City of Mississauga granted extensions of time to comply with the Orders to Comply in respect to separate requests made by the builder-developer and by the defendant.

However, because nothing had been done or changed with the construction or to the status of the exterior decks or canopies during the 11 months that had followed the issuance of the two Orders, the building inspector who had issued those orders, then decided to lay charges on February 1, 2011, against both the builder-developer and P.S.C.C. #833 for committing offences under the Building Code Act, 1992 . [ 10 ] With respect to the charges laid against the builder-developer, it had been charged with committing two counts of “building not in accordance with approved plans”, contrary to s. 36(1) (

c) of the Building Code Act, 1992 . Consequently, on June 20, 2012, the builder-developer entered guilty pleas to those two charges and convictions were then registered against the builder-developer. [ 11 ] On the other hand, despite it being the purchasers who had been the ones who had initiated the complaint about the unauthorized

alterations made by the builder-developer with the City of Mississauga Planning and Building Department and who made the municipality aware of those alterations, the City of Mississauga still laid four charges under the Building Code Act, 1992 against P.S.C.C. #833 [also referred to as “Peel Standard Condominium Plan 833” or “P.S.C.P. 833” in many documents entered as exhibits]. These four charges were set out on two separate informations that were sworn on February 1, 2011. Specifically, P.S.C.C. #833 (“the defendant”), had been charged with committing the following four

Part 3 regulatory offences that were set out in two separate informations: (

a) In respect to Information #000521: PEEL STANDARD CONDOMINIUM CORP. 833 7-4009 Glen Erin Drive, Mississauga., ON L5L 0A5 Count #1 On or about 18 th day of February 2010, at 2635 Rogers Road, Units 8, 9, 10, Mississauga, Ontario did commit the offence of building not in accordance with approved plans on the basis of which Building Permit No. 06-726 was issued by the Chief Building Official contrary to subsection 8(13) of the Building Code Act, S.O. 1992, c. 23 and thereby committed an offence under Section 36(1)(

c) of the said Building Code Act, S.O. 1992, c. 23. Count #2 AND FURTHER THAT PEEL STANDARD CONDOMINIUM CORP. 833, between the period commencing on or about May 25 th , 2010 and ending on or about January 13 th , 2011 at 2635 Rogers Road, Units 8, 9, 10, Mississauga, Ontario did commit the offence of failing to comply with an Order to Comply issued on February 25 th , 2010 pursuant to subsection 12(2) of the Building Code Act, S.O. 1992, c. 23 and thereby committed an offence under Section 36(1)(

b) of the said Building Code Act, S.O. 1992, c. 23. (

b) In respect to Information #000522: PEEL STANDARD CONDOMINIUM CORP. 833 7-4009 Glen Erin Drive, Mississauga., ON L5L 0A5 Count #1 On or about 18 th day of February 2010, at 4009 Glen Erin Drive, Units 1, 2, 3, 4, 5, 6, 7, Mississauga, Ontario did commit the offence of building not in accordance with approved plans on the basis of which Building Permit No. 06-726 was issued by the Chief Building Official contrary to subsection 8(13) of the Building Code Act, S.O. 1992, c. 23 and thereby committed an offence under Section 36(1)(

c) of the said Building Code Act, S.O. 1992, c. 23. Count #2

AND FURTHER THAT PEEL STANDARD CONDOMINIUM CORP. 833, between the period commencing on or about May 25 th , 2010 and ending on or about January 13 th , 2011 at 4009 Glen Erin Drive, Units 1, 2, 3, 4, 5, 6, 7, Mississauga, Ontario did commit the offence of failing to comply with an Order to Comply issued on February 25 th , 2010 pursuant to subsection 12(2) of the Building Code Act, S.O. 1992, c. 23 and thereby committed an offence under Section 36(1)(

b) of the said Building Code Act, S.O. 1992, c. 23. [ 12 ] However, on the third day of the trial, which was on August 23, 2013, the prosecution invited the court to dismiss the two charges of “building not in accordance with approved plans” against the defendant, P.S.C.C. #833, because of the evidence that had come out on the second day of the trial, which had revealed that those two charges had been laid outside the one-year limitation period, and as such, were statute-barred. Accordingly, the two charges laid against the defendant under s. 36(1) (

c) of the Building Code Act, 1992 for “building not in accordance with approved plans” were endorsed as dismissed. [ 13 ] As for the two remaining charges of “failing to comply with an order issued on February 25, 2010”, the prosecution contends that it has proven the actus reus of the two offences beyond a reasonable doubt and that the defendant has not made out the defence of due diligence on a balance of probabilities to avoid being convicted of committing the two offences. [ 14 ] Moreover, the prosecution submits that the defendant did not take all reasonable steps in the circumstances to comply with the two Orders to Comply, and that it could have complied with the Orders to Comply in three ways.

In particular, the prosecution submits that the defendant could have: (1) removed and rebuilt the exterior deck for Building “A” according to the approved construction drawings; (2) authorize and consent to having the builder-developer submit “as-built” drawings to the City of Mississauga Planning and Building Department and having the builder-developer apply for a revision to the two building permits that had been issued by the City of Mississauga to build the two blocks of townhouses; or (3) have “as-built” drawings prepared at P.S.C.C. #833’s cost and having the “as-built” drawings submitted to the City of Mississauga Planning Building Department and then personally apply for a revision to the two building permits that had been issued by the City of Mississauga to build the two blocks of townhouses. [ 15 ] On the other hand, the defendant contends that it had taken all reasonable steps to comply with the Orders to Comply and in complying with its statutory obligations under the Condominium Act, 1998 , and in taking steps to comply with the two Orders the defendant has expended a substantial amount of money for several engineering reports and legal fees in their fight to have the unauthorized alterations fixed or repaired by the builder-developer or by Tarion and that the defendant had also proceeded immediately, diligently, and conscientiously with approaching the City Mississauga to inform them about the unauthorized alterations and in pursuing its warranty claim with Tarion and then in their appeal at the Licence Appeal Tribunal of Tarion’s disallowance of their warranty claim, and as such, the defendant submits that an acquittal should be entered for the remaining two charges against the defendant. [ 16 ] Ergo, the principal issue to resolve in deciding whether the defendant should be acquitted or convicted of the two charges of “failing to comply with an order issued on February 25, 2010”, is whether the defendant has taken all reasonable steps in the circumstances to comply with the two Orders to Comply. [ 17 ] After submissions and arguments were completed on August 23, 2013, judgment was reserved by the court and adjourned to November 1, 2013, for the court’s decision to be rendered.

These are therefore my written reasons for judgment: 2. BACKGROUND (

a) Appearances And Dates For The Proceeding In Respect Of The Four Charges Laid Against The Defendant

[ 18 ] The two informations containing the four charges laid against the defendant were both sworn on February 1, 2011. Summonses were then issued by the court on the same day that required the defendant to attend on May 26, 2011, to answer to the four charges. On May 26 th , the defendant appeared by agent in respect to the summonses and the matter was then adjourned to be spoken to on July 28, 2011. On July 28th, the matter was once again adjourned to be spoken to on October 6, 2011. On October 6th, the matter was further adjourned to be spoken to on December 1, 2011.

On December 1 st , counsel for the defendant made his first appearance on the matter and the matter was then adjourned to February 7, 2012, so that a judicial pre-trial conference could be held. After the judicial pre-trial conference was completed, the matter was then adjourned to March 8, 2012, so that trial dates for a two-day trial could be found and scheduled. On March 8, trial dates were obtained and were confirmed for June 20 and 21, 2012. [ 19 ] On June 20, 2012, the trial of the defendant’s four charges commenced.

However, it was discovered during the testimony of the prosecution’s first witness that certain documents that the witness had been referring to had not actually reached or been received by the defendant’s counsel, although those particular documents had been sent out by the prosecution as part of their disclosure obligation. The documents were then provided to the defendant’s counsel by the prosecution so that they could be reviewed during the lunch break, but the amount of documents was too many for the defendant’s counsel to properly review.

This necessitated an adjournment to allow the defendant’s counsel sufficient time to properly review those particular documents before the trial could continue. The trial was then adjourned to resume on November 29 and December 6, 2012. [ 20 ] However, on November 29, 2012, an adjournment was then sought by the prosecution as its primary witness had been hospitalized and put on short-term leave for a health issue.

In addition, the prosecution further explained during the adjournment application that the defendant was still pursuing its appeal at the Licence Appeal Tribunal of Tarion’s disallowance of the defendant’s warranty claim and that the decision on the appeal would be coming out before the end of December 2012 [in fact, the appeal decision came out on December 21, 2012]. The adjournment was granted and the matter was set over to be spoken to on January 30, 2013.

On January 30 th , the court was informed that the defendant had been vindicated in its appeal in respect to the defendant’s warranty claim with Tarion and once again the trial was adjourned to March 13, 2013, to allow time for the defendant to resolve the warranty claim with Tarion and for Tarion to comply with the decision of the Licence Appeal Tribunal to fix or repair the unauthorized alterations made by the builder-developer.

However, on March 13 th , the defendant had still not resolved the remediation of the unauthorized alterations with Tarion, and as consequence, it was decided that the trial would have to proceed and two days were then found for the trial to continue on July 26, 2013 and August 23, 2013. [ 21 ] On July 26, 2013, the trial continued.

Then, on August 23, 2013, on the third day of the trial, the prosecution invited the court to dismiss the two charges against P.S.C.C. #833 of “building not in accordance with approved plans” because of the evidence that had come out on the second day of the trial, which had revealed that those two charges had been laid outside the one-year limitation period, and as such, were statute-barred. Accordingly, the two charges laid under s. 36(1) (

c) of the Building Code Act, 1992 for “building not in accordance with approved plans” were dismissed against the defendant. [ 22 ] The trial was then completed on August 23, 2013, for the remaining two charges laid under s. 36(1) (

b) of “failing to comply with an Order to Comply”. [ 23 ] In addition, four witnesses had testified during the trial. One witness testified for the prosecution and three witnesses testified for the defendant. The prosecution’s lone witness was Stasys Obelienius, the building inspector who had observed the unauthorized alterations and who had issued the two Orders to Comply on February 25, 2010. For the defendant, the three witnesses who testified were:

(1) Ken Beard, the President of the Board of Directors for P.S.C.C. #833;

(2) Thomas Max Schmaus, the Treasurer of the Board of Directors for P.S.C.C. #833; and

(3) Costas Nikiforos, the manager of Building Inspections for the westside of the City of Mississauga and for the district in which the ten townhouses were located. [ 24 ] After submissions were heard, judgment was reserved, and the matter was adjourned to November 1, 2013, for the judgment to be rendered. (

b) The Ten Townhouses Built At Glen Erin Drive And Rogers Road In The City Of Mississauga [ 25 ] The townhouse development at Glen Erin Drive and Rogers Road was built as an “L-shaped” set of two-storey townhouses that are in two distinct townhouse blocks. Ten townhouses were built in this residential development. Seven of the ten units are contained in one block of townhouses known as building “A” while the remaining three townhouses are contained in a separate block known as Building “B”.

The seven-unit block of townhouses fronts onto Glen Erin Drive while the three-unit block of townhouses fronts onto Rogers Road. In addition, the three units in Building “B” were completed and occupied first in 2007. The remaining seven units in Building “A” were substantially completed and occupied in the early part of 2008. However, the rear exterior deck for Building “A” had not been completed before the purchasers had moved into their respective townhouses in Building “A”.

[ 26 ] The seven townhouse units in Building “A” are numbered as units #1, #2, #3, #4, #5, #6, and #7 on the approved drawings (Ex. 2), and are respectively addressed as 4021 Glen Erin Drive, 4019 Glen Erin Drive, 4017 Glen Erin Drive, 4015 Glen Erin Drive, 4013 Glen Erin Drive, 4011 Glen Erin Drive, and 4009 Glen Erin Drive. On the other hand, the three townhouse units in Building “B” are numbered as units #8, #9, and #10 on the approved drawings (Ex. 2), and are respectively addressed as 2639 Rogers Road, 2637 Rogers Road, and 2635 Rogers Road. (

c) The Builder And Developer Of The Ten-Unit Townhouse Development Located At Glen Erin Drive And Rogers Road [ 27 ] The builder-developer of those ten townhouses located at the northeast corner of Glen Erin Drive and Rogers Road is an Ontario corporation known as “Real-T-Building Inc.” The President of Real-T-Building Inc. is Greg Gilmour. The builder-developer’s address is 6850 Millcreek Drive, Mississauga . In respect to the unauthorized alterations in the construction of certain elements of the townhouse complex, the builder-developer had been charged on February 1, 2011, with two counts of “building not in accordance with approved plans”, contrary to s. 36(1) (

c) of the Building Code Act, 1992 .

For those two charges, the builder-developer had entered guilty pleas on June 20, 2012, and convictions were subsequently registered against the builder-developer. [ 28 ] In addition, Bob Bray was the site supervisor for the builder-developer in regards to the construction of the ten townhouses, and had contact and discussions at the townhouse complex with Stasys Obelienius, the building inspector for the City of Mississauga, who had been involved in conducting building inspections of the ten townhouses constructed at Glen Erin Drive and Rogers Road. [ 29 ] Also, the architect who had designed and prepared the drawings for the construction of the ten townhouses that were submitted on behalf of the builder-developer and that had been approved of by the City of Mississauga Planning and Building Department was Raj Singh Mangat, who operated under the corporate name of RSM Architecture Inc. [ 30 ] Furthermore, the duty and role of builders who construct a building in Ontario is set out in s. 1.1(3) of the Building Code Act, 1992 , and includes ensuring that construction does not proceed unless a permit required under the Building Code Act, 1992 has been issued by the chief building official and to construct the building in accordance with the permit and to use appropriate building techniques to achieve compliance with the Building Code Act, 1992 and the Ontario Building Code [ emphasis is mine below ]: Role of various persons 1.1

(1) It is the role of every person who causes a building to be constructed , (

a) to cause the building to be constructed in accordance with this Act and the building code and with any permit issued under this Act for the building ; (

b) to ensure that construction does not proceed unless any permit required under this Act has been issued by the chief building official ; and (

c) to ensure that construction is carried out only by persons with the qualifications and insurance, if any, required by this Act and the building code. … Role of builders 1.1

(3) It is the role of a builder,

(

a) to ensure that construction does not proceed unless any permit required under this Act has been issued by the chief building official ; (

b) to construct the building in accordance with the permit ; (

c) to use appropriate building techniques to achieve compliance with this Act and the building code ; and (

d) when site conditions affect compliance with the building code, to notify the designer and an inspector or the registered code agency, as appropriate. … Limitation 1.1

(8) Nothing in this

section relieves any person from the duty to comply with any part of this Act or the building code or affects the rights or duties of a person not mentioned in this

section in respect of the construction of a building. (

d) The City Of Mississauga Issued Two Building Permits For The Construction Of The Ten Townhouses Located At Glen Erin Drive And Rogers Road [ 31 ] Raj Mangat, the architect retained by the builder-developer, prepared a set of architectural and construction plans (Ex. 2) of what was going to be constructed by the builder-developer on the property located at the northeast corner of Glen Erin Drive and Rogers Road in the City of Mississauga and submitted them with two applications (Ex. 1A and 1B) for two separate building permits.

Those plans also detailed what materials were to be used and the size and construction method for different elements of the townhouse development. [ 32 ] The City of Mississauga Planning and Building Department approved those plans submitted on behalf of the builder-developer and issued two building permits to the builder-developer on October 20, 2006, based on those plans, respectively, for the construction of two separate blocks of townhouses.

Building Permit #BP06726 was issued to Real-T-Building Inc., the owner and builder-developer of the property, for the construction of Building “A” comprising of townhouse units #1, #2, #3, #4, #5, #6, and #7, which are on Glen Erin Drive while Building Permit #BP06727 was issued also to Real-T-Building Inc. for constructing Building “B” comprising of townhouse units #8, #9, and #10, which are on Rogers Road. [ 33 ] Moreover, s. 8(13) of the Building Code Act, 1992 , prohibits anyone from constructing a building or causing a building to be constructed except in accordance with the plans, specifications, documents, and any other information on the basis of which a permit was issued or in accordance with any changes or revisions to them that has been authorized by the chief building official [ emphasis is mine below ]: Prohibition 8

(13) No person shall construct or demolish a building or cause a building to be constructed or demolished except in accordance with the plans, specifications, documents and any other information on the basis of which a permit was issued or any changes to them authorized by the chief building official . [ 34 ] In addition, Stasys Obelienius, the building inspector who issued the two Orders to Comply to the defendant, had testified that the builder-developer had been responsible for both of the building permits that had been issued to it for the construction of those ten townhouses. [ 35 ] Furthermore, the building permit system and the inspections outlined in the Ontario Building Code that the Ministry of Municipal Affairs and Housing have deemed mandatory, generally ensures that for any building constructed in Ontario the construction would meet the minimum building standards set out in the Building Code that would safeguard the life, health and safety of the building's occupants,

as well as ensuring that local zoning by-laws, structural safety standards and other applicable laws are also met in the construction of that building.

Moreover, the City of Mississauga Planning and Building Department would also review the submitted plans for the construction of a new building to ensure that they comply with appropriate Building Code standards. [ 36 ] However, it is the owner of the land or building where the new construction is being undertaken pursuant to a building permit that would be ultimately responsible for ensuring that the construction complies with the issued permit and all regulations and by-laws that govern the construction. [ 37 ] Ergo, until legal ownership of the ten townhouses had been transferred to the purchasers, the builder-developer, who had owned the townhouse complex and who had been issued the building permits had the obligation and responsibility for ensuring that the construction of the townhouse complex would be in compliance with the issued permits, the Building Code , the Building Code Act, 1992 , and all other applicable regulations and by-laws. (

e) When Did The Purchasers Start Occupying The Townhouse Units As Renters? [ 38 ] As to when the units were first occupied, Ken Beard, the President of the Condominium Board, testified he had signed a purchase agreement to purchase one of the 10 townhouse units in June of 2007 and that he had moved into his unit as a tenant-at-will in May of 2008.

In other words, Beard was paying monthly rent to the builder-developer while he occupied his townhouse as a tenant-at- will and did not become the legal owner of his townhouse until the Declaration and Description document creating the condominium corporation had been registered and the builder-developer had legally transferred the ownership of the townhouse to Beard on August 14, 2008. [ 39 ] Furthermore, Beard said that his unit had been the last of the ten units to be occupied by a purchaser.

He also said that the purchasers of townhouse units #8, #9 and #10 in Building “B” were the first to move in and occupy their units and that the first of the ten units had been occupied in November of 2007. [ 40 ] In addition, Thomas Schmaus, the Treasurer of the Condominium Board, testified that he had put in an offer to purchase one of the townhouse units in June of 2007 and that he had moved into his unit as a tenant-at-will in February of 2008.

He also said that Building “B”, which is comprised of townhouse units #8, #9 and #10, were completed first and that those units were occupied as of the end of the summer of 2007. He also said that those three townhouse units were for the most

part completed in the mid to late summer of 2007. (

f) When Was The Exterior Deck For Building “A” Completed By The Builder-Developer? [ 41 ] The rear exterior deck for Building “A” had not been constructed by the builder-developer in accordance with the approved plans.

This particular unauthorized alteration made by the builder-developer is the main item in dispute between the builder-developer and the defendant, as well as being the principal subject matter of the defendant’s warranty claim with Tarion. [ 42 ] In addition, Stasys Obelienius, the City of Mississauga building inspector, had testified that he is not aware of the date on which the rear exterior deck for Building “A” was completed. However, Ken Beard, the President of the Condominium Board, said the exterior deck had been completely done by June of 2008.

Beard also said the builder-developer, in order to save costs, had eliminated a 200-foot I-beam that had been detailed in the approved drawings and that was supposed to have been installed down the center of the deck. Furthermore, Beard said the exterior deck had not been constructed in accordance with the approved plans, but had been had been altered by the builder-developer.

Instead of covering the deck joists with 2 x 6 deck boards with gaps for the water to run through, as detailed in the approved plans, the builder developer decided to replace the 2 x 6 deck boards with plywood boards that were also covered with a modified bitumen membrane, which was then overlain with wood decking. However, Beard said the waterproof membrane unfortunately held water because of the lack of a sufficient slope for the water to run off the deck, and since the deck had been improperly constructed and sealed, it also allowed water to leak into the plywood boards under the membrane.

Furthermore, Beard said that because water would not run off the deck properly, the decking planks that were laid onto the membrane had become severely warped so that deck screws were being pulled out. He also said the exterior deck had become a total mess in a very short time. [ 43 ] In addition, Thomas Schmaus, the Treasurer on the Condominium Board, said the exterior deck in question is 20 feet in depth and spans the entire length of the seven townhouses of Building “A”.

Schmaus also said the modified bitumen covering had been added to the exterior deck in the winter, which he believes had been sometime after February of 2008. He also said the deck had been finished

before the title to the respective townhouses had been transferred from the builder-developer to the purchasers, which he said had been sometime between March and May of 2008. [ 44 ] Furthermore, Schmaus took photographs (see Exs. 8A, 8B, 8C) which show the state of the exterior decks in the Fall of 2007, which he said had been taken either in October or November of 2007, that clearly shows that the exterior deck for Building “A” had been erected and that there had been a plywood covering on the surface of the deck, but no guardrails had been erected for the exterior deck at the time he took those photographs.

In addition, Schmaus noted that the exterior deck for Building “B” could also be visible in one of the photographs and that it also showed a picket-style guard rail had been installed for that particular deck. (

g) The Ministry Of Municipal Affairs And Housing Requires A Municipality To Conduct 11 Mandatory Inspections In Respect To New Homes [ 45 ] Concerning inspections of new homes, Stasys Obelienius, the City of Mississauga building inspector, said he is responsible for conducting certain inspections for new construction, including conducting the inspections for the ten townhouses at Glen Erin Drive and Rogers Road.

He also testified that the final exterior inspection of those ten townhouses had not been done yet because the builder- developer had not made a request to the City of Mississauga to conduct that particular inspection.

Obelienius also explained that the onus is legally on the builder-developer to call the City of Mississauga when a particular inspection is required or needed to be done. [ 46 ] This legal requirement on the builder-developer to notify and request one of the mandatory inspections from the City of Mississauga is contained in s. 10.2(1) of the Building Code Act, 1992 [ emphasis is mine below ]: Notice of readiness for inspection 10.2

(1) At each stage of construction specified in the building code , the prescribed person shall notify the chief building official or the registered code agency, if any, that the construction is ready to be inspected. Inspection

(2) After the notice is received, an inspector or the registered code agency, as the case may be, shall carry out the inspection required by the building code within the prescribed period . [ 47 ] Moreover,

article 1.3.5.1 of the Ontario Building Code , O. Reg. 350/06 , also legally requires the builder or the building permit holder at each critical stage of construction to notify the Chief Building Official when the builder or permit holder is ready for an inspection [ emphasis is mine below ]: 1.3.5. NOTICES AND INSPECTIONS 1.3.5.1. Prescribed Notices

(1) This

Article sets out the notices that are required under

section 10.2 of the Act .

(2) The person to whom a permit under

section 8 of the Act is issued shall notify the chief building official or, where a registered code agency is appointed under the Act in respect of the construction to which the notice relates , the registered code agency of, [ 48 ] Furthermore, Obelienius also said the Ministry of Public Affairs and Housing requires municipalities to conduct 11 mandatory inspections in respect to new construction. These 11 mandatory inspections may be found within the list of inspections outlined in s. 1.3.5.1(2) of the Ontario Building Code [ emphasis is mine below ]:

1.3.5.1

(2) The person to whom a permit under

section 8 of the Act is issued shall notify the chief building official or, where a registered code agency is appointed under the Act in respect of the construction to which the notice relates , the registered code agency of, (

a) readiness to construct footings, (

b) substantial completion of footings and foundations prior to commencement of backfilling, (

c) substantial completion of structural framing and ductwork and piping for heating and air-conditioning systems, if the building is within the scope of

Part 9 of Division B, (

d) substantial completion of structural framing and roughing-in of heating, ventilation, air-conditioning and air-contaminant extraction equipment, if the building is not a building to which Clause (

c) applies, (

e) substantial completion of insulation and vapour barriers, (e.1) substantial completion of air barrier systems, (

f) substantial completion of all required fire separations and closures and all fire protection systems including standpipe, sprinkler, fire alarm and emergency lighting systems, (

g) substantial completion of fire access routes, (

h) readiness for inspection and testing of, (

i) building sewers and building drains, (ii) water service pipes, (iii) fire service mains, (iv) drainage systems and venting systems, (

v) the water distribution system, and (vi) plumbing fixtures and plumbing appliances, (

i) readiness for inspection of suction and gravity outlets, covers and suction piping serving outlets of an outdoor pool described in Clause 1.3.1.1.(1)(

j) of Division A, a public pool or a public spa, (

j) substantial completion of the circulation / recirculation system of an outdoor pool described in Clause 1.3.1.1.(1)(

j) of Division A, a public pool or public spa and substantial completion of the pool before it is first filled with water, (

k) readiness to construct the sewage system, (

l) substantial completion of the installation of the sewage system before the commencement of backfilling, (

m) substantial completion of installation of plumbing not located in a structure, before the commencement of backfilling, (

n) completion of construction and installation of components required to permit the issue of an occupancy permit under Sentence 1.3.3.1.(2) or to permit occupancy under Sentence 1.3.3.2.(1), if the building or part of the building to be occupied is not fully completed, and (

o) completion of construction and installation of components required to permit the issue of an occupancy permit under Sentence 1.3.3.4.(5). [ 49 ] In addition, the role and duties of a chief building official and of building inspectors are outlined in ss. 1.1(6) and 1.1(7) of the Building Code Act, 1992 .

In particular, a building inspector’s role includes exercising powers and performing duties provided under the Building Code Act, 1992 and the Ontario Building Code in connection with reviewing plans, inspecting construction, conducting maintenance inspections and issuing orders in accordance with the Building Code Act, 1992 and the Building Code [ emphasis is mine below ]: Role of chief building officials 1.1

(6) It is the role of a chief building official , (

a) to establish operational policies for the enforcement of this Act and the building code within the applicable jurisdiction;

(

b) to co-ordinate and oversee the enforcement of this Act and the building code within the applicable jurisdiction ; (

c) to exercise powers and perform the other duties assigned to him or her under this Act and the building code; and (

d) to exercise powers and perform duties in accordance with the standards established by the applicable code of conduct. Role of inspectors 1.1

(7) It is the role of an inspector , (

a) to exercise powers and perform duties under this Act and the building code in connection with reviewing plans, inspecting construction, conducting maintenance inspections and issuing orders in accordance with this Act and the building code ; (

b) to exercise powers and perform duties in respect of only those matters for which he or she has the qualifications required by this Act and the building code; and (

c) to exercise powers and perform duties in accordance with the standards established by the applicable code of conduct. (

h) Registration Inspection Requested By The Builder-Developer For The Registration Of The Declaration And Description Document For The Townhouse Development At Glen Erin Drive And Rogers Road [ 50 ] Stasys Obelienius, the City of Mississauga building inspector, testified that when the townhouse complex was substantially complete, the builder-developer had requested a registration inspection to be done.

Accordingly, before the Declaration and Description document that would create the condominium corporation could be registered; the townhouse complex transferred and turned over to the Board of Directors of the condominium corporation to manage; and title to the individual townhouses could be transferred to the purchasers so that they would no longer have to pay rent to the builder-developer, but make mortgage payments instead, the City of Mississauga Planning and Building Department needed to attend the property to conduct a registration inspection of the townhouse complex.

Obelienius also that if the townhouse complex was ready then he would grant the approval for registration. [ 51 ] In addition, Obelienius said he had attended the townhouse complex on June 25, 2008, to conduct only the registration inspection. He also said he had not been there to conduct the final exterior inspection, as the builder had not yet requested that particular inspection to be done. Obelienius further said he had inspected five of the townhouse units, namely, units #2, #4, #5, #6, and # 7. Furthermore, he said all those units were finished inside and occupied.

However, he also said that four of the units were not occupied. In addition, he said the builder-developer had been doing outside clean-up at that time. [ 52 ] Obelienius also said that for the registration inspection of the townhouse complex, he had been concerned primarily with looking for safety issues, such as whether there is proper lighting, whether there are guardrails installed where required, whether the site had been cleaned up, whether stairs have been installed between floors, whether there were unprotected openings in the floor, and whether the townhouse complex had been substantially complete.

Moreover, Obelienius said the registration inspection is not part of the required inspections that have to be done in regards to the two building permits that had been issued for the construction of the ten townhouses. [ 53 ] Furthermore, on the day of the registration inspection Obelienius said the exterior deck for Building “A” had not been completed or finished, as there were no guardrails installed for the exterior deck.

As a consequence, he had to put blocks on the patio doors for all those units that opened onto the exterior deck so that the doors would not open more than four inches in order to prevent the occupants of those seven townhouses from being able go onto the unfinished deck area. [ 54 ] In addition, Obelienius said that during the registration inspection, Bob Bray, the site supervisor, had asked Obelienius what would be required for the builder-developer to install a glass-panelled guardrail on the exterior deck for Building “A”, instead of installing a picket-styled guardrail.

To Bray’s query, Obelienius said he responded to Bray by telling Bray that a professional engineer’s

certificate would be required for the glass-panelled guardrail. However, Obelienius said the builder-developer had not asked Obelienius about altering the design of the exterior decks or about covering the exterior deck for Building "A" with a waterproof membrane instead of using the 2 x 6 deck boards with gaps that had been detailed on the approved plans. [ 55 ] Obelienius also said that after he had completed the registration inspection, he granted the approval for the builder-developer to register the Declaration and Description document to create the condominium corporation. (

i) The Creation Of Peel Standard Condominium Corporation #833 (“P.S.C.C. #833”) [ 56 ] The Condominium Act, 1998 , S.O. 1998, c. 19, governs the creation and duties of the condominium corporation, which when created is responsible for the condominium property, finances, official records, reserve fund study, and agreements.

This statute also governs the rights and responsibilities of the condominium developer; owners of the individual units in the condominium; the condominium corporation and its boards of directors; proportionate common expense contributions; corporate and owner maintenance obligations; and conditions or restrictions on the use of the units and the common elements. [ 57 ] In addition, a condominium corporation, its common elements, and the individual units are created by a Declaration and Description document that is prepared by the builder-developer under s. 2(3) (

c) of the Condominium Act, 1998 , and which is registered by the builder-developer at the proper land registry office [ emphasis is mine below ]: 2

(1) Subject to the regulations made under this Act and subsection (2), a declaration and description may be registered by or on behalf of the person who owns the freehold or leasehold estate in the land described in the description. Restriction

(2) A declaration and description for a freehold condominium corporation shall not be registered by or on behalf of a person who does not own the freehold estate in the land described in the description. Effect of registration

(3) Upon registration of a declaration and description , (

a) this Act governs the land and the interests appurtenant to the land, as the land and the interests are described in the description; (

b) the land described in the description is divided into units and common elements in accordance with the description; and (

c) a condominium corporation is created . … Objects 17

(1) The objects of the corporation are to manage the property and the assets, if any, of the corporation on behalf of the owners . Duties

(2) The corporation has a duty to control, manage and administer the common elements and the assets of the corporation . [ 58 ] Real-T-Building Inc., the builder-developer of the ten townhouses, was the declarant for the Declaration and Description document. On June 17, 2008, Greg Gilmour, the President of Real-T-Building Inc., signed the Declaration and Description document that created the condominium corporation named P.S.C.C. #833.

The Declaration and Description document was then registered on July 29, 2008, at the Land Registry Office for the Regional Municipality of Peel that is located in the City of Brampton (see Ex. 4). As such, t he defendant, P.S.C.C. #833, came into existence on July 29, 2008, by virtue of the registration of that Declaration and Description document. [ 59 ] Furthermore, the Declaration and Description document sets out how the Condominium Corporation is owned.

It also defines the units, the common elements, sets out the percentage of ownership each unit has in the property, and shows how much each owner must pay for common expense fees. In addition, a legal condominium, such as the one that comprises the ten townhouses located at Glen Erin Drive and Rogers Road, is run collectively by the condominium unit owners, all of whom are members of the Condominium Corporation known as P.S.C.C. #833 . In addition, the owners of the individual units in the condominium elect a Board of Directors to oversee the operations of the Condominium Corporation.

Furthermore, the Board of Directors may also hire a property manager to take care of the day-to-day repairs and maintenance of the building or buildings and the common property of the condominium. (

j) Transfer Of Ownership Of The Townhouse Units By The Builder-Developer To The Respective Purchasers [ 60 ] Legal ownership of the ten townhouses had been transferred from the builder-developer to the respective purchasers and these transfer deeds had been registered at the Land Titles Office on August 14, 2008 (see Exs. 5A, 5B, 5C, 5D, 5E, 5F, 5G, 5H, 5I, and 5J).

Hence, the builder-developer was no longer the owner of the townhouse development as of August 14, 2008. [ 61 ] However, the builder-developer would still have control of the Board of Directors for P.S.C.C. #833 and could keep control of the Condominium Board until the “turn-over meeting” where the purchasers would elect directors to serve on the Condominium Board of P.S.C.C. #833. (

k) The Board Of Directors For P.S.C.C. #833 (“Condominium Board”) [ 62 ] Under s. 42(1) of the Condominium Act, 1998 , the first Board of Directors for P.S.C.C. #833 would be comprised of directors appointed by the builder-developer, but these directors would only hold office until a new board comprised of purchasers had been elected at the turn-over meeting held under s. 43 of the Act [ emphasis is mine below ]: Board of directors 27

(1) A board of directors shall manage the affairs of the corporation. … First board of directors 42

(1) Within 10 days after the registration of the declaration and description, the declarant shall appoint the first board of a corporation. … Term

(3) The first board shall hold office until a new board is elected at a turn-over meeting held under

section 43 . … Owners’ meeting

(6) Subject to subsection (7), the first board shall call and hold a meeting of owners by the later of, (

a) the 30th day after the day by which the declarant has transferred 20 per cent of the units in the corporation; and (

b) the 90th day after the declarant transfers the first unit in the corporation. Exception

(7) The first board is not required to call or hold the meeting mentioned in subsection (6) if, by the day set for the meeting, the declarant no longer owns a majority of the units and advises the first board in writing of that fact. Election of directors

(8) At the meeting mentioned in subsection (6), the owners, other than the declarant, may elect two directors to the first board. Quorum

(9) Despite subsection 50(1), at the meeting mentioned in subsection (6), the quorum for the election of directors under subsection (8) is those owners who own 25 per cent of the units in the corporation not owned by the declarant. Determination of quorum

(10) To count towards the quorum, an owner must have been entitled to receive notice of the meeting, must be entitled to vote at a meeting and shall be present at the meeting or represented by proxy. … [ 63 ] Furthermore, Thomas Schmaus, the Treasurer of the Condominium Board for P.S.C.C. #833, testified that after the Declaration and Description document had been registered on July 29, 2008, the builder-developer took over on an interim basis as the property manager for the condominium property until the Spring of 2009.

He also said the builder-developer had formed the first Board of Directors for P.S.C.C. #833, as required under the Condominium Act, 1998 , but that there had been no directors on the first Board of Directors that were from the purchasers.

As such, Schmaus said the builder-developer had control of the Condominium Board and control of the decisions to be made in respect of the townhouse complex until the purchasers took over the Condominium Board from the builder-developer. [ 64 ] In addition, the first Board of Directors for P.S.C.C. #833 would be eventually replaced by directors comprised of the purchasers of the ten townhouses at the “turn-over meeting”, as required under s. 43(1) of the Condominium Act, 1998 .

The builder-developer is also legally required to turn over specific documents and plans, including “as-built” drawings, to the new Condominium Board that is comprised of the purchasers [ emphasis is mine below ]:

Turn-over meeting 43(1) The board elected or appointed at a time when the declarant owns a majority of the units shall, not more than 21 days after the declarant ceases to be the registered owner of the majority of the units, call a meeting of owners to elect a new board. Who may call meeting

(2) If the board does not call the meeting within the required time, an owner or a mortgagee having the right to vote under

section 48 may call the meeting. Time of meeting

(3) The board shall hold the meeting within 21 days after it is called. Things to turn over

(4) At the meeting, the declarant shall deliver to the board elected at the meeting, (

a) the seal of the corporation; (

b) the minute book for the corporation including a copy of the registered declaration, registered by-laws, current rules and minutes of owners’ meetings and board meetings; (

c) copies of all agreements entered into by the corporation or the declarant or the declarant’s representatives on behalf of the corporation, including management contracts, deeds, leases, licences and easements; (

d) copies of all policies of insurance and the related certificates or memoranda of insurance and all insurance trust agreements; (

e) bills of sale or transfers for all items that are assets of the corporation but not part of the property; (

f) the records maintained under subsection 47 (2) and subsection 83 (3); and (

g) all records that it has related to the units or to employees of the corporation. Same, after meeting

(5) The declarant shall deliver to the board within 30 days after the meeting , (

a) the existing warranties and guarantees for all the equipment, fixtures and chattels included in the sale of either the units or common elements that are not protected by warranties and guarantees given directly to a unit purchaser ;

(

b) the as-built architectural, structural, engineering, mechanical, electrical and plumbing plans ; (

c) the as-built specifications, indicating all substantive changes, if any, from the original specifications ; (

d) all existing plans for underground site services, site grading, drainage and landscaping, and television, radio or other communications services; (

e) all other existing plans and information not mentioned in clause (b), (

c) or (

d) that are relevant to the repair or maintenance of the property; (

f) if the property of the corporation is subject to the Ontario New Home Warranties Plan Act , (

i) proof, in the form, if any, prescribed by the Minister, that the units and common elements have been enrolled in the Plan within the meaning of that Act in accordance with the regulations made under that Act, and (ii) a copy of all final reports on inspections that the Corporation within the meaning of that Act requires be carried out on the common elements; (

g) a table setting out the responsibilities for repair after damage and maintenance and indicating whether the corporation or the owners are responsible; (

h) a

schedule setting out what constitutes a standard unit for each class of unit that the declarant specifies for the purpose of determining the responsibility for repairing improvements after damage and insuring them; (

i) all financial records of the corporation and of the declarant relating to the operation of the corporation from the date of registration of the declaration and the description; (

j) if the meeting is held after nine months following the registration of the declaration and description, the reserve fund study that is required within the year following the registration of the declaration and description; (

k) all reserve fund studies that have been completed or are required to have been completed at the time the meeting is held, other than the reserve fund study that is required within the year following the registration of the declaration and description; (

l) a copy of the most current disclosure statement delivered to a purchaser of a unit in the corporation under

section 72 before the meeting; and (

m) all other material that the regulations made under this Act require to be given to the board. Cost

(6) The items mentioned in subsections (4) and (5) shall be prepared at the declarant’s expense, except for the items mentioned in clauses (5) (

j) and (

k) which shall be prepared at the expense of the corporation. Audited financial statements

(7) The declarant shall deliver to the board within 60 days after the meeting audited financial statements of the corporation prepared by the auditor, on behalf of the owners and at the expense of the corporation, as of the last day of the month in which the meeting is held. … [ 65 ] On April 30, 2009, the “turn-over meeting” required under. s. 43(1) was held, at which time the first Board of Directors that had been appointed by the builder-developer were replaced by directors who were elected by the purchasers of the ten townhouses.

Ergo, the Board of Directors that were comprised of the purchasers of the ten townhouses were not responsible for the common areas of the townhouse complex until April 30, 2009. [ 66 ] Furthermore, the builder-developer had control of the Condominium Board until the builder-develop turned over control of the Board to the purchasers at the turn-over meeting held on April 30, 2009. Thomas Schmaus also testified that the new Board then was comprised of directors who were purchasers of the ten townhouses.

Schmaus also said the new Condominium Board then requested documents, building plans, and warranties from the builder-developer, but very little had been turned over by the builder-developer to them. (

l) W

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