) ) Arlene Gregoire, Chief Building Official for the City of Ottawa Applicant – v. –, 2013 ONSC 2619

CITATION : Ottawa (City) v. Lauzon , 2013 ONSC 2619 COURT FILE NO.: 13-56924 DATE: 2013/05/08 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Arlene Gregoire, Chief Building Official for the City of Ottawa Applicant – and – J. Claude Lauzon, John Cooke, P. Eng. and John G. Cooke & Associates Ltd. Respondents ) ) ) ) ) ) ) ) )))) Ronald F. Caza / Stephanie V. Lewis, for the Applicant Charles M. Gibson/Ian Houle, for the Respondent J. Claude Lauzon Heather L. Acton, for the Respondents John Cooke and John G.

Cooke & Associates Inc. ) ) HEARD: March 25, 2013 DECISION ON the city’s APPLICATION FOR PRODUCTION of cooke’s HERITAGE ENGINEERing REPORT R. Smith j. Overview [ 1 ] J. Claude Lauzon (“Lauzon” or “owner”), is the owner of a historical building located at 287 Cumberland Street in the City of Ottawa (the “Building”). [ 2 ] The Building was originally used as a Roman Catholic girls school and its architecture has not been altered for over 100 years. The building is located in a Heritage Conservation District which has cultural and heritage significance to the Ottawa community.

Lauzon acquired the Building in 1981. [ 3 ] Arlene Gregoire, the Chief Building Official for the City of Ottawa (“CBO” or the “City”). She submits that after Lauzon’s application for a demolition permit was denied in 2005, he deliberately let the Building fall into a state of disrepair with the intention of having it demolished. [ 4 ] The owner and the City agree that the Building is currently in an unsafe condition.

The owner wants the City to order him to demolish the Building to protect the safety of the public, without considering the possibility of remediating the Building to preserve some part of its heritage structure. [ 5 ] On February 1, 2013, Lauzon’s engineers, Adjeleian Allen Rubeli Limited (“AAR”) sent a letter to the City advising it that the Building should be demolished because it was a risk to public safety. [ 6 ] In response, on February 4, 2013, the City issued an order to Lauzon to remedy the unsafe building. Lauzon was ordered to provide the following before February 15, 2013: 2

b) Provide a Peer Review of the AAR Engineering Report by a Heritage Structural Engineer, commenting on the ability to remediate the building. [ 7 ] The City issued its February 4, 2013 order to provide a peer review of the AAR report by a Heritage Structural Engineer pursuant to ss. 18(1) (

a) and (

c) and s. 15.9(4) of the Building Code Act , 1992, S.O. 1992, c. 23 (“ BCA ”).

[ 8 ] On February 6, 2013, Cooke (“Cooke”) was retained by Lauzon through his lawyer. Later on that same day, the City also attempted to retain Cooke to conduct a heritage remediation assessment of the Cumberland Building. The City recognizes Cooke as a pre-eminent engineer in the City of Ottawa with unique qualifications relating to remediation of heritage buildings. [ 9 ] On February 20, 2013, the City became aware that the owner would not be providing it with a copy of the Cooke report.

The City then issued an order directly to Cooke requiring him to provide the City with all information in his possession in relation to the Building, including a copy of his report prepared for Lauzon. [ 10 ] On March 1, 2013, Cooke advised the City that he had prepared a report for Lauzon, but that Lauzon did not consent to his providing the City with a copy. Lauzon has further asserted that the Cooke report is subject to litigation privilege. Issues [ 11 ] The following issues must be decided:

(1) Did the City have jurisdiction to order Cooke to provide it with a copy of his report, if it is not subject to litigation privilege?

(2) Is the Cooke report subject to litigation privilege? Analysis Issue #1 Did the City have jurisdiction to order Cooke to provide it with a copy of his report, if it is not subject to litigation privilege ? [ 12 ] Lauzon submits that the City did not have jurisdiction to consider heritage factors related to compliance with the Ontario Heritage Act , R.S.O. 1990, c. O.18 (the “ OHA ”) when it made its February 4, 2013 order (the “February 4 th order”) under s. 15.9(4) and s. 15.9(2) (

a) and (

b) of the BCA . Lauzon submits that any order issued under s. 15.9(4) and s. 18 of the BCA is limited to ensuring the safety of the Building and these sections of the BCA do not give the City jurisdiction to consider compliance with the OHA . [ 13 ] Cooke submits that the BCA provisions referred to in the City’s February 20, 2013 order (the “February 20 th order”), or any other provisions of the BCA , do not authorize the City to order a structural engineer to provide the City with a copy of a report, which assessed the potential to preserve the heritage attributes of the Building.

Cooke argues that the City’s jurisdiction under s. 18 of the BCA is limited to requesting information related to the safety of building. Cooke further submits that the City has retained its own structural engineer with expertise with heritage structures, to determine if the Building may be remediated to preserve its heritage aspects, and as a result does not need to see his report. [ 14 ] The City submits that s. 18(1) (

a) and (

c) of the BCA gives an inspector conducting an inspection of an unsafe building, the authority to require production of documents relevant to the building or any part thereof. In addition, the City submits that it has authority to require information from any person concerning a matter related to a building or any part thereof.

The City submits that this includes authority to require information from an engineer who has prepared a report assessing the possibility of remediating a heritage building and that s. 18 is not limited only to information related to the safety of the Building. [ 15 ] The City further submits that s. 8 of the BCA states that no person shall demolish a building unless a permit has been issued by the Chief Building Official. It follows that the CBO must issue a demolition permit before the Cumberland Building can be demolished. Section 8(2) of the BCA states that the CBO shall issue a permit (demolition) unless, (

a) the proposed building, construction or demolition will contravene this Act , the building code or any other applicable law . [Emphasis added.] [ 16 ] The City submits that the OHA is an “other applicable law” referred to in s. 8 (

a) of the BCA which applies to the Cumberland Building because it is located in the Lowertown West Heritage Conservation District that has been designated as a historical building. Section 42(1) of the OHA prevents an owner of a heritage property from demolishing it unless the owner has obtained a permit from the City. [ 17 ] The relevant sections of the BCA are as follows: 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. Enforcement by municipalities 3.

(1) The council of each municipality is responsible for the enforcement of this Act in the municipality, except where otherwise provided by this Act. Chief building official, inspectors

(2) The council of each municipality shall appoint a chief building official and such inspectors as are necessary for the enforcement of this Act in the areas in which the municipality has jurisdiction. Building permits 8.

(1) No person shall construct or demolish a building or cause a building to be constructed or demolished unless a permit has been issued therefore by the chief building official. Issuance of permits

(2) The chief building official shall issue a permit referred to in subsection (1) unless, (

a) the proposed building, construction or demolition will contravene this Act, the building code or any other applicable law; Inspection of unsafe buildings 15.9

(1) An inspector may enter upon land and into buildings at any reasonable time without a warrant for the purpose of inspecting a building to determine, (

a) whether the building is unsafe; or (

b) whether an order made under subsection (4) has been complied with. 2002, c. 9, s. 26 .

Interpretation

(2) A building is unsafe if the building is, (

a) structurally inadequate or faulty for the purpose for which it is used; or (

b) in a condition that could be hazardous to the health or safety of persons in the normal use of the building, persons outside the building or persons whose access to the building has not been reasonably prevented. 2002, c. 9, s. 26 . … Order

(4) An inspector who finds that a building is unsafe may make an order setting out the reasons why the building is unsafe and the remedial steps necessary to render the building safe and may require the order to be carried out within the time specified in the order. [Emphasis added.] … Order respecting occupancy

(6) If an order of an inspector under subsection (4) is not complied with within the time specified in it, or where no time is specified,

within a reasonable time, the chief building official, (

a) may by order prohibit the use or occupancy of the building; and (

b) may cause the building to be renovated, repaired or demolished to remove the unsafe condition or take such other action as he or she considers necessary for the protection of the public. Powers of inspector 18.

(1) For the purposes of an inspection under this Act, an inspector may, (

a) require the production for inspection of documents or things, including drawings or specifications, that may be relevant to the building or any part thereof; … (

c) require information from any person concerning a matter related to a building or part thereof; [ 18 ] An inspector is defined in the BCA to include the Chief Building Official and such other inspectors as are appointed by the municipality. [ 19 ] The parties agree that the Cumberland Building is presently unsafe as defined in s. 15.9(2) (

a) and (

b) of the BCA namely, that it is “in a condition that could be hazardous to the health or safety of persons in the normal use of the building, persons outside the building …”. [ 20 ] The February 4, 2013 order was made pursuant to ss. 15.9(2) (

a) and (

b) and 15.9(4) of the BCA .

Section 15.9(4) of the BCA allows an inspector who finds that a building is unsafe to make an order setting out the reasons why the building is unsafe and the remedial steps necessary to render the building safe and may require the order to be carried out within a time specified in the order. [ 21 ] The City’s February 4 th order was also made pursuant to s. 18(1) (

a) and (

c) of the BCA which allows the inspector to require the production of documents relevant to the building and may require information from any person concerning a matter related to a building.

Section 18 would apply to existing information or documents relevant to the building in the owner’s or any other person’s possession. [ 22 ]

Section 15.9(4) gives the City the authority to order the remedial steps to be taken which would include the authority to request further engineering reports be provided to determine what remedial steps are to be taken. [ 23 ] After AAR sent its engineering report to the City stating that the building was unsafe, the inspector, in his February 4 th order, requested that Lauzon provide a peer review of the AAR engineering report by a heritage structural engineer commenting on the ability to remediate the building.

It was understood that the remediation was intended to determine if some heritage attributes of the Building could be preserved as part of the demolition. [ 24 ] On or about February 6, 2013, an inspector for the City was advised that Cooke had been retained to prepare a report with respect to the Building and that he was expected to conduct an assessment within two days of February 6, 2013. [ 25 ] Sometime after February 15, 2013, Lauzon advised the City that he would not be providing the City with a copy of Cooke’s report.

Lauzon instead chose to provide the City with a copy of a peer review of the AAR report prepared by Cleland Jardine Engineering, a heritage structural engineer who gave his opinion that the Building was unsafe, could not be remediated and simply had to be completely demolished. Lauzon did not object to providing a peer review report prepared by a heritage structural engineer to determine if the Building could be remediated to preserve some heritage aspects, but rather he objects to producing the Cooke report. [ 26 ] In its order of February 20 th , the City relied on s. 18(1)(

a) and (

c) of the BCA and ordered Cooke to provide a copy of his report and any other information he may have related to the Building, to allow the City to make a determination with respect to the structural adequacy of the building, the potential for remediation, and the potential to preserve the building and or heritage attributes, of the building which is subject to the OHA . Lauzon and Cooke dispute the City’s authority to require Cooke to produce a copy of his report and any information related to the Cumberland Building including whether there is potential to preserve the heritage attributes of the building in accordance with the OHA . [ 27 ] The City submits that the purpose of s. 18(1)(

c) is to allow the City to obtain all of the information available with respect to a building which is or may be unsafe. The City argues that the owner and other persons who have relevant information are not able to decide which information they will disclose to the City and which information they will not disclose. The City submits that the purpose of this

section is to ensure that all relevant information is available to the City before any decision is made with respect to a heritage building, both with regards to a building’s safety and also the ability to comply with the OHA . [ 28 ] The City seeks information it has reason to believe was prepared for the owner by Cooke pursuant to its February 4 th order to obtain a peer review of the AAR report by a heritage structural engineer on the ability to remediate the Building in accordance with the

OHA. The City is aware that Cooke has assessed and prepared a report on the Building for Lauzon. It seeks a copy of Cooke’s report, notfor the purpose of assessing the condition or safety of the Building, but rather to determine if the building can be remediated and complywith s. 42 of the OHA. [29] Lauzon previously applied for a demolition permit in 2005 and his request was denied.

In 2005, Lauzon was required tocomply with s. 42 of the OHA before obtaining a demolition permit and he failed to do so. [30] Lauzon has also brought a separate application, which will be heard subsequently, seeking a court order that the Building bedemolished without preserving any of the heritage components due to the emergency safety issue under s. 15.10 of the BCA.

This issue isnot before me today. [31] Lauzon’s actions make it clear that he does not wish to apply for a demolition permit or a building permit which would requirehim to maintain part of the heritage aspects of the Cumberland Building, even if this is possible. The owner has allowed the building tofall into a state of disrepair, such that it has become a danger to the safety of the public. Lauzon’s failure to repair has caused what hesubmits is an emergency situation requiring the Building’s demolition without the owner applying for a demolition permit.

If the ownerapplied for a demolition permit, then an enquiry would be made under s. 42(1) of the OHA to determine if all or some of the heritageaspects could be preserved. [32] Under s. 8(1) of the BCA, the CBO must issue a demolition permit before a building can be demolished.

Before issuing ademolition permit under s. 8(2) of the BCA states that the CBO shall issue the permit unless “the proposed building, construction ordemolition will contravene this Act, the building code or any other applicable law”. [Emphasis added.] [33] In this case, the CBO is not prepared to issue a demolition permit to Lauzon for the Building until it is satisfied that the ownerhas complied with the OHA which she submits is an “other applicable law”. I agree with this approach and find that this is consistentwith the scheme of the BCA and the OHA. [34] Section 42(1) of the OHA reads as follows that: 42.

(1) No owner of property situated in a heritage conservation district that has been designated by a municipality under this Part shalldo any of the following, unless the owner obtains a permit from the municipality to do so: … 2.

Erect, demolish or remove any building or structure on the property or permit the erection, demolition or removal of such a buildingor structure. [35] The Building is located in a designated heritage conservation district and as a result the owner must obtain a permit from themunicipality under s. 42 of the OHA before it alters or demolishes any part of the heritage Building. [36] The Building is currently in an unsafe condition, and I find that it is reasonable for the CBO to consider all relevant factorsrelated to the Building, including whether the Building can be remediated to partially or wholly preserve its heritage attributes beforecomplete demolition is ordered. [37] In the 1982 Supreme Court of Canada decision of St.

Peter’s Evangelical Lutheran Church (Ottawa) v. Ottawa (City), (SCC), [1982] 2 S.C.R. 616, the purpose of the OHA was described in the following terms when it quoted MacKinnonA.C.J.O. of the Court of Appeal who stated as follows: It is to preserve and conserve for the citizens of this country inter alia, properties of historical and architectural importance. The Act is aremedial one and should be given a fair and liberal

interpretation to achieve those public purposes which I have recited. [38] When the provisions of the OHA are considered together with those of the BCA I find that the sections of the BCA should alsobe given a fair and literal

interpretation to achieve those public purposes, similar to that given to the OHA. [39] The correct approach to statutory

interpretation requires that the words of the enactment must be read in their entire context, intheir grammatical and ordinary sense, and harmoniously with the scheme of the Act, the object of the Act and the intention of parliament (Sullivan on the Construction of Statutes, 5th ed., 2003, LexisNexis Canada at pp. 1-18). [40] In this case, s. 15.9(4) of the BCA gives an inspector broad powers to determine if “the building is unsafe and the remedialsteps necessary to render the building safe and may require the order to be carried out within the time specified in the order.” [41] In addition, s. 15.9(6) of the BCA states that the inspector: (

b) may cause the building to be renovated, repaired or demolished to remove the unsafe condition or take such other action as he or she

considers necessary for the protection of the public. [ 42 ] The OBA also gives powers to the inspector for the purposes of an inspection under this Act , to require the production for inspection of documents that may be relevant to the Building and under s. 18(1)(

c) to “require information from any person concerning a matter related to a building or part thereof;”. These are quite broad powers and do not limit the information to be provided to only that related to ensuring the safety of the Building. In this case, the CBO is concerned about the possible remediation of the Building in accordance with the OHA . [ 43 ] If this Building was not designated as a heritage building then the City would not be required to consider any possible compliance with the OHA and would only be concerned with safety issues, but that is not the situation faced by the CBO.

The City’s evidence states that the building is not an immediate danger to the public as temporary steps have been taken to ensure public safety. [ 44 ] If an owner fails to maintain a heritage building and allows it to reach an unsafe state, then refuses to apply for a demolition permit, which would require an enquiry as to whether some or all of the heritage aspects of the Building could be remediated or preserved, then under s. 15.9(6) the City may cause the building to be renovated or demolished for the protection of the public.

If the City must consider ordering demolition under s. 15.9(6) of a historical building then I find that this situation is analogous to the owner applying for a demolition permit in this situation. I find that the City could reasonably consider compliance with s. 42(1) of the OHA for historical buildings in a designated area before issuing a demolition permit and before proceeding to order the complete demolition of the Building. [ 45 ] If the City must act on its own under s. 15.9(6), without the owner applying for a demolition permit, an

interpretation of this

section which allows the City to consider compliance with s. 42 of the OHA as an “other applicable law” as set out in s. 8(2) (

a) of the BCA would be consistent with object and scheme of the BCA , which includes ensuring that buildings are safe for the public and would also be consistent with ensuring that before issuing a demolition permit it would not contravene any “other applicable law”, in this case the OHA . [ 46 ] This

interpretation would also be consistent with the intention of the legislature as s. 8(2)(

a) allows the CBO to consider if issuing a demolition permit would contravene any “other applicable law” and the OHA is another applicable law passed by the legislature. [ 47 ] Interpreting s. 18(1)(

a) and (

c) of the BCA , in a manner that is consistent with the object and scheme of the BCA , which allows the CBO to consider if issuing a demolition permit would contravene any other applicable law, including the OHA , would allow her to obtain information related to compliance with the OHA from persons that the City is aware has this information in their possession. I find that this

interpretation would be consistent with the wording of s. 8(2)(

a) of the BCA and would be consistent with the purposes and objectives and scheme of the BCA , which requires compliance with other applicable laws which would include the OHA before a demolition permit is issued. [ 48 ] I find that by analogy, even if a demolition permit has not been applied for by the owner, who has allowed a building to fall into such disrepair that it becomes unsafe to the public, and the City must decide whether to issue an order to demolish the building, the CBO can consider if demolition would contravene the OHA . This approach would be consistent with the main object and scheme of the BCA and the intent of the legislature as evidenced in s. 8(2)(

a) that the City may consider whether issuing a building or demolition permit for a heritage building would contravene the provisions of the OHA as it is an “other applicable law”. I find that this

interpretation would apply both to an application made under s. 8(2) of the BCA by an owner and when the City must act under s. 15.9(6) to order demolition or remediation of a designated heritage building. [ 49 ] I therefore interpret s. 8(2)(

a) of the OBA to allow the City to consider compliance with other applicable laws, including the OHA , before ordering a demolition of a heritage building in a designated heritage area.

I would also interpret the powers of the inspector as set out in s. 18 of the OBA , in a manner consistent with the objectives and scheme of the BCA and the intention of the legislature to allow an inspector to request production of documents relevant to the Building from the owner or from any person concerning a matter related to the building or a part thereof This would include a request for information related to a possibility of remediating the structure to ensure its safety and any information related to whether the Building could be remediated to avoid contravening the OHA .

Disposition of Issue #1 [ 50 ] For the above reasons, I find that the City had reasonable grounds to believe that Cooke has prepared a peer review of the AAR report by a heritage engineer with a view to remediation in accordance with the OHA .

I further find that if such a report was prepared and was in the possession of Cooke, provided it is not subject to litigation privilege, then the City had jurisdiction to order Cooke to produce a copy if this information as it concerns a matter related to the Building, namely information about the possibility of remediating the Building in accordance with the OHA to preserve some of its heritage attributes.

Issue #2 Is the Cooke report subject to litigation privilege ? [ 51 ] Lauzon’s solicitor requested Cooke to prepare a report on the Building after he had given notice to the City that Lauzon intended to appeal its February 4 th order. Lauzon therefore submits that Cooke’s report was made in contemplation of litigation and is protected by litigation privilege. [ 52 ] The City submitted that I should review the retainer and the Cooke report to determine whether the litigation privilege is properly claimed.

The City submits that Lauzon must demonstrate that Cooke was retained for the purposes of an appeal and not for the purposes of providing the peer review of the AAR report as requested by the City’s February 4 th order. [ 53 ] In Blank v. Canada (Minister of Justice) , 2006 SCC 39 , [2006] 2 S.C.R. 319, paras. 59-63 , the Supreme Court of Canada held

that in order for litigation privilege to arise, the dominant purpose of the document must be preparing for or conducting reasonablyanticipated litigation. [54] In Kennedy v. Diversified Mining Interest (Canada) Ltd., (ON SC), 1948 O.W.N. 798 (H.C.) at 800, thecourt held that the onus to establish privilege was on the party who asserts its existence, in this case that is Lauzon. [55] In Nanaimo Shipyard Ltd. v.

Keith, 2007 BCSC 9 at para. 24, the British Columbia Supreme Court held that the partyclaiming privilege has the onus establishing the privilege and to determine the appropriate evidence to be adduced to substantiate theclaim. [56] I have previously ordered that the copy of the Cooke report and the retainer letter be provided to me for my review. [57] Having reviewed the Cooke report, it is clear that the report was prepared in order to respond to the February 4th order fromthe City to provide a peer review of the AAR engineering report by a heritage structural engineer.

As a result, since the dominant purpose for the document was to reply to the City’s February 4th order, I find that the Cooke report was not prepared for conductingreasonably anticipated litigation. I therefore find that Cooke’s report is not the subject of litigation privilege. Disposition of Issue #2 [58] For the above reasons given, I find that the Cooke report is not the subject of litigation privilege. Disposition [59] The City’s application for an order directing Cooke to provide a copy of the information and his report related to theCumberland Building to the CBO of the City of Ottawa is granted.

Costs [60] The City may make submissions on costs within ten (10) days, the respondents may respond within ten (10) days and the Citymay reply within seven (7) days. Mr. Justice Robert J. Smith Released: May 8, 2013 CITATION: Ottawa (City) v. Lauzon, 2013 ONSC 2619 COURT FILE NO.: 13-56924 DATE: 2013/05/08

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Arlene Gregoire, Chief Building Official for the City of Ottawa Applicant – and – J. Claude Lauzon, John Cooke, P. Eng. and John G. Cooke & Associates Ltd. Respondents DECISION ON the city’s application for PRODUCTION of cooke’s heritage engineering REPORT R. Smith J. Released: May 8, 2013