2017 ONSC 2679, 2017 ONSC 2679

CITATION : Birani Homes Ltd. v. Corporation of the City of London, 2017 ONSC 2679 COURT FILE NO.: 32-15 DATE: 20170428 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Birani Homes Ltd., Appellant AND: Corporation of the City of London, Vasantrai Girjashanker Joshi and Jytotibala Vasantrai Joshi, Respondents BEFORE: Justice A. K. Mitchell COUNSEL: M. Coulston, for the Appellant N. Hall, for the Corporation of the City of London J.

Joshi appearing in person HEARD: April 28, 2018 ENDORSEMENT Overview [ 1 ] Birani Homes Ltd. appeals from the Order made by the Chief Building Official of the City of London made on December 19, 2014 (the “2014 Order”).

The 2014 Order compels both Birani as well as the respondent homeowners, Vasantrai Girjashanker Joshi and Jytotibala Vasantrai Joshi, to first submit an engineering report setting out how to correct the unsafe condition of the foundation of the Joshi’s home located at 1891 Coronation Drive, London, Ontario and thereafter remediate the foundation on or before March 23, 2015. [ 2 ] Birani appeals from the 2014 Order on two grounds, namely, that: (

a) the City lacked jurisdiction to make the order against Birani; and (

b) the Order is unreasonable. [ 3 ] Birani argues that it was both unreasonable and unlawful for the City to order that Birani take remedial action in relation to a property which Birani does not own and over which Birani has no control and no right of access. [ 4 ] I granted the appeal and set aside the 2014 Order with reasons to follow. These are my reasons. Background [ 5 ] Birani constructed the Joshis’ home. Birani sold the home to the Joshis in 2007.

At some point after closing, deficiencies in the foundation of the home were identified by the Joshis. [ 6 ] In 2009, the Joshis retained an engineer to extract and analyse a few samples of concrete from the foundation of their home.

In an effort to obtain recovery for the defects in the foundation of their home, the Joshis commenced a civil action against Birani in April 2010, filed a warranty claim with Tarion and made a complaint to the City which included provision of the report prepared by their engineer indicating that the foundation of their home was structurally unsafe. [ 7 ] Pursuant to its authority under s. 15.9(4) of the Building Code Act (the “BCA”) , the City issued an order in May 2011 against the Joshis and Birani requiring each of them to submit an engineering report describing the remedial work necessary to make the home safe and the interim measures required prior to any permanent repairs being completed (the “2011 Order”). [ 8 ] The Joshis refused Birani (and their engineers) access to their property. [ 9 ] The Joshis and Birani did not comply with the 2011 Order and the City proceeded to initiate charges pursuant to the Provincial Offences Act (the “POA”).

The Joshis entered a guilty plea and received a fine. Birani reached a resolution with the City and based on their joint recommendation, Birani received a suspended sentence owing to Birani’s inability to access the property making it impossible for Birani to comply with the 2011 Order. [ 10 ] Immediately following resolution of the charges relating to the 2011 Order, the City issued the 2014 Order. Procedural History [ 11 ] The City brought fresh charges under the POA against the Joshis and Birani for noncompliance with the 2014 Order. These charges have not been resolved.

[ 12 ] This appeal was commenced by Notice of Appeal dated January 7, 2015. [ 13 ] A motion was brought by Birani on February 11, 2015 seeking an order permitting Birani and its engineering experts access to the property to take a sample from the home’s concrete foundation. The motion was dismissed. [ 14 ] The Joshis’ civil action against Birani remains outstanding. [ 15 ] Tarion was ordered to pay $300,000 to the Joshis on their warranty claim. This order is under appeal. Analysis [ 16 ]

Section 15 of the BCA is contained in the portion of the BCA dealing with unsafe buildings. The relevant ss. 15.9(4) and 15.9(5) read as follows: 15.9 Inspection of Unsafe Buildings 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. Service

(5) The order shall be served on the owner and each person apparently in possession of the building and such other persons affected thereby as the Chief Building Official determines and a copy of the order may be posted on the site of the building. [ 17 ] It is important to note that the City does not take the position the residence presents any immediate danger to the health or safety of any person requiring an emergency order pursuant to s. 15.10 of the BCA or removal of the Joshis from their home.

The City has made its orders having found only that the home is “unsafe” because the concrete foundation is believed to be structurally deficient. [ 18 ] In dismissing the motion, Leach J. found that the City did not have authority under the BCA to authorize Birani’s engineers to access the property and extract samples from the foundation and therefore the Court, having no higher authority than the City, similarly had no authority to make the requested access order. [1] [ 19 ] In finding the City had no authority, Leach J. noted that interpreting the BCA in a manner suggested by Birani “would be quite at odds with the purpose and intention of the BCA, which clearly seeks to strike a delicate balance between the interests of homeowners and the limited powers of intervention conferred upon government authorities charged with protection of public interests.” [2] [ 20 ] At para. 46 of his endorsement, Leach J. comments on the issues on appeal as follows: …the absence of any mechanism in the BCA to facilitate Birani’s desired access to the property may lend additional support to its arguments that the making of s. 15.9 orders against those with no effective ability to carry them out was something never intended by the Legislature, and/or that the City’s decision to make such an order against Birani was “unreasonable”. [ 21 ] I concur with the comments of Leach J.; however, decline to address the broader jurisdictional issue of whether a city’s jurisdiction is restricted to issuing orders pursuant to s. 15.9(4) of the BCA to only those persons having possession, control and/or rights of access to the subject property.

I further decline to interpret the term “affected persons” contained in s. 15.9(5) of the BCA as limited to only those persons having possession, control and/or rights of access to the subject property. However, I will caution the City’s building officials against issuing orders where compliance is not possible despite best efforts. In that instance, the exercise of power under the BCA is not in furtherance of the legitimate policy objective of ensuring the safety of buildings through remediation and would exceed the City’s authority. [ 22 ] I find the 2014 Order is unreasonable and must be set aside.

In December 2014, the City was well aware Birani was unable to gain access to the Joshis’ property to conduct the sampling necessary to prepare and file a report and conduct remediation of the foundation in accordance with the recommendations contained in the report.

Despite the City’s agreement to resolve the charges relating to the 2011 Order by way of a suspended sentence, it immediately turned around and issued the 2014 Order containing enhanced remedial steps requiring greater access to the property than required for compliance with the 2011 Order. [ 23 ] Birani argues the issuance of the 2014 Order is an abuse of process by the City. If it was not, it certainly comes dangerously close.

After negotiating a joint resolution with Birani of the charges relating to the 2011 Order, there was no justification for the City issuing the 2014 Order knowing Birani was unable to comply with its terms for precisely the same reasons it was unable to comply with the terms of the 2011 Order.

In these circumstances, the decision to issue the 2014 Order against Birani was unreasonable. [ 24 ] To avoid the need for any further appeals, the City is hereby prohibited from issuing any further orders pursuant to the BCA against Birani relating to the Joshis’ residence whereby compliance with any such order requires access to the Joshis’ property. Disposition [ 25 ] Appeal allowed. The 2014 Order is set aside as it relates to Birani Homes Ltd. [ 26 ] If costs of this appeal cannot be agreed between counsel, the parties may file written submissions within 15 days.

“Justice A. K. Mitchell” A. K. Mitchell Date: April 28, 2017