The author recently had the pleasure and privilege of successfully defending the City of St. Catharines at trial in a claim brought against it arising from the alleged negligence on the part of the City’s building department.
In this case, Tilden v. City of St. Catharines (2023) ONSC 4946, the Plaintiff, Kenneth Tilden, commenced a suit against the City, claiming damages for loss of rental income as a result of an Order to Comply issued pursuant to s.24 Building Code Act against his property. The Order to Comply was issued due to the Plaintiff’s failure/refusal to obtain a building permit before carrying out certain renovations on the house.
The house in question was an income property located at 183 Main Street in Port Dalhousie. The tenants unexpectedly moved out, leaving the house with no heat, in November 2007. This cause a pipe to burst, resulting in substantial water damage to the interior. The Plaintiff then shut off the water and electricity to the house, and left it vacant and unheated for the next three years. In July 2010, a neighbour complained to the City’s property standards department about the house’s dilapidated condition.
The City property standards inspector, in the course of investigating the property standards claim, found out that the Plaintiff was doing renovation work on the house. This work included replacement of water-damaged insulation on the main floor, upgrading the plumbing from galvanized to copper pipes, and the reclamation of unheated space under the second floor eaves by insulating this space.
Upon being shown photographs of this work, The City’s Chief Building Inspector, Brian Thiessen, on October 26, 2010, issued an Order to Comply under s.24 Ontario Building Code Act, requiring the Plaintiff to cease work on these renovations until he had applied for and successfully obtained a building permit.
In response, the Plaintiff, did not apply for a building permit, and did not appeal the Order to Comply, despite admitting on cross-examination that he was aware of his right to do so, as stated on the face of the Order, but stopped work on the house. The house remained uninhabited right up to the time of trial, with the renovations at the same stage as they were 12½ years earlier when the Order to Comply was originally issued.
As a result of the Plaintiff’s failure to obtain a building permit, a prosecution against the Plaintiff, pursuant to the Provincial Offences Act, was commenced. On May 11, 2016 (i.e. two years less a day after the Provincial Offences Act charges were withdrawn) the Plaintiff commenced his action against the City, claiming that the City was negligent in its interpretation and enforcement of the Ontario Building Code in requiring him to obtain a building permit for what he felt were minor repairs.
The City’s Defence
The City raised five defences in response to the Plaintiff’s claim:
- The Plaintiff knew or ought to have known that he had sustained damages as a result of the City’s conduct as of December 1, 2010, and that as such, the Plaintiff’s claim is time-barred;
- There was no evidence of the applicable standard of care to which the Defendant should be held, and as such, the Plaintiff was unable to establish any breach;
- The City’s interpretation and enforcement of the Building Code was reasonable;
- There was no evidence that the Plaintiff had sustained any damages for loss of rental income;
- The Plaintiff failed to mitigate his damages by appealing the Order to Comply
Reasons for Judgment
The trial judge, Walters J., accepted the City’s argument that Plaintiff’s claim was time-barred, and held that this claim should be dismissed on this basis alone. She stated, on the authority of the Soper v. Southcott, that when a limitation defence is raised, the court must engage in a factual analysis of when the Plaintiff knew enough facts to give rise to a claim in negligence, and that the onus rested with the Plaintiff to establish this was not the case until within 2 years of this claim being issued. She found that as of December 1, 2010, the Plaintiff knew that, as a result of the Order to Comply made by the City, the house would not be ready to have the tenant he claimed to have lined up move in on that date, given that this was explicitly pled in the Statement of Claim. This serves as a cautionary tale regarding how to frame one’s allegations in a pleading.
Despite finding the action to be statue barred, Walters J. considered each of the City’s other four defences and ruled in the City’s favour on them. Concerning the standard of care, Walters J. accept the City’s submission that if a plaintiff wishes to establish a breach of the standard of care in a professional negligence case, it must call expert evidence of this standard, which the Plaintiff failed to do, and that as such, the Plaintiff was unable to establish the City was negligent. It appears implicit in this finding that municipal building officials should be treated in the same manner as professionals like doctors, lawyers and engineers. This is completely appropriate under the circumstances.
The Plaintiff spent a lot of his case attempting to establish he did not require a building permit, as the renovations in question were “simple repairs”, rather than an “improvement” as defined in the Building Code Act. However, Walters J. concluded this was a “red herring”, insofar the issue in this case was not whether a permit was actually required for this work, but whether the City acted reasonably in requiring one.
Walters J. concluded by briefly dealing with damages, concluding that in the absence of a signed lease, or any testimony from a prospective tenant, there was no evidence that the Plaintiff had lost any rent on the premises. She also found that by not appealing the Order to Comply or properly applying for a building permit as a result of it, the Plaintiff had failed to mitigate any damages he might have.
As a result, the Plaintiff’s claim was dismissed and he was ordered to pay $100,000 in costs to the City.
The writer would like to conclude this article by thanking the current and former employees of the City who testified at trial for their input and assistance in the defence of this matter.
He would be happy to help in the defence of your Building Code or municipal liability claim.
 (1998), 39 OR (3d) 737 (Ont. C.A.)