January 3, 2009
Deck building litigation was needless waste of time
Judge rules that deck should have been inspected at the end of construction, not earlier
One of the reasons litigation is so expensive and time-consuming in
Ontario is that too much court time is spent on cases that should never have
gone there in the first place.
A prime example of this is the court decision in the case of Upchurch vs. the
City of Oshawa, released by the Ontario Divisional Court a few weeks ago.
Donald and Carla Upchurch wanted to build a deck outside their house in
Oshawa. When Donald attended at the city offices to obtain a building permit, he
was told that no permit would be required if, upon completion, the deck would
not be higher than two feet above the adjacent ground, or grade level.
This advice was based on the requirements of the Policies and Procedures
Manual for the City of Oshawa. According to the written rules, a permit is not
required for a residential deck if it is not more than 600 millimetres (about 24
inches) in height above the adjacent grade, with no roof above.
In September 2006, during construction of the deck, "a third party"
(presumably a neighbour) complained to the city, and a building inspector came
out to look at the work. The inspector himself was not certain whether a permit
was required and he consulted his supervisor to see whether he could use his
discretion to waive a building permit.
At the time of the inspection, construction of the deck had not been
completed. Planters had been installed at the front of the deck, so that the
deck boards there were clearly less than two feet above the new ground level
Unfortunately, during the inspector's visit, planters had not been installed
at the sides of the deck. The inspector measured the height at the sides of the
deck and discovered that the board level there was more than two feet above
grade.
Based on advice from his supervisor, the building inspector decided that a
permit was required. He then issued a No Permit Order, requiring construction
work to cease.
The owners filed an appeal of the No Permit order and the matter came up for
a court hearing in May 2007. Justice Myrna Lack dismissed the Upchurch appeal
and ruled the owners should have obtained a building permit.
Not satisfied with that ruling, the Upchurches appealed to a three-judge
panel of the Divisional Court in September 2008.
The court released its two-page ruling in October, rescinding Lack's No
Permit order and revoking her award of costs in favour of the City of Oshawa. As
well, the court awarded costs of $3,500 against the city.
On behalf of the three-judge Divisional Court panel, Associate Chief Justice
Douglas Cunningham wrote: "The deck has now been completed and the planters have
been installed at the sides of the deck, such that the distance between the
grade (the top of the side planters) and the deck floor is considerably less
than two feet.
"In our view, the appropriate time for inspection would have been the
completion of the project, not at some point midway through construction."
The owners, he said, "did everything properly on the understanding that with
the planters installed, the distance between grade and the deck floor would be
considerably less than two feet. They acted upon the advice given by a building
official when they sought a building permit."
This case is a classic example of one that should never have been heard in
one court, not to mention two. I believe the city should have admitted its
mistake at the outset and given its blessing to the deck. When homeowners can't
rely on municipal advice and the parties are forced to spend tens of thousands
of dollars on legal fees in needless litigation, there is a huge temptation to
undertake renovations without obtaining permits.
Bob Aaron is a Toronto real estate lawyer and an appointed director of
the Tarion Warranty Corporation. He can be reached by email
at bob@aaron.ca, phone 416-364-9366 or
fax 416-364-3818. Visit the column archives at
http://aaron.ca/columns/toronto-star-index.htm
for articles on this and other topics.
DIVISIONAL
COURT FILE NO.:
DC-07-084386-00
DATE:
20081021
ONTARIO
SUPERIOR
COURT OF JUSTICE
DIVISIONAL
COURT
CUNNINGHAM
A.C.J.S.C.J., LALONDE and R.D. GORDON JJ.
IN THE
MATTER OF Section 26(1) of the Building Code Act, 1992,
S.O.,
1992, c.23.
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B E T W
E E N: |
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DONALD
THOMAS UPCHURCH and CARLA PAULINE UPCHURCH |
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Scott R.
Fairley
for the
Appellants |
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Appellants |
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- and - |
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THE
CORPORATION OF THE CITY OF OSHAWA |
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David J.
Potts
for the
Respondent |
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Respondent |
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HEARD:
September 18, 2008 at Newmarket |
REASONS FOR
JUDGMENT
FOR THE COURT:
[1]
This is an appeal
of the decision of Lack J. dated May 8, 2007 in which she dismissed the
appellants’ appeal against an order issued by an inspector from the City
of Oshawa pursuant to s. 12(2) of the Building Code Act, 1992,
S.O. 1992, c.23, as amended. Before the Divisional Court the
appellants seek an order rescinding the No Permit Order issued to them
requiring them to cease construction of a new front deck on their
property. This appeal is brought pursuant to s. 26 of the said Act.
[2]
Before commencing
the proceeding before us, the appellants brought a motion seeking to
introduce an engineering report provided by Gianier Engineering Ltd. in
which the author of the report concludes that the newly constructed porch
deck in question meets and/or exceeds the minimum structural requirements
of the Ontario Building Code 1997. We allowed this evidence to be put
before us concluding that it adequately met the test for the introduction
of fresh evidence.
[3]
The issue in this
case is whether the reconstruction of this deck met the requirements of
the Policies and Procedures Manual for the City of Oshawa, more
specifically, as it relates to the height of residential decks. In the
Policy Manual, it states that a building permit is not required for the
construction of residential decks not exceeding 600 mm. (24 inches) in
height above adjacent grade with no roof above. Whether there was a roof
above was never at issue in the proceeding before Lack J., the only issue
being the height of the deck from grade. The evidence before Lack J.
indicated that the appellant Upchurch attended at the City of Oshawa for
the purpose of obtaining a building permit to replace the front deck on
his property. He was assisted at that time by one Volkirk Van Beusekom of
the Buildings Division. The appellant Upchurch, in evidence, stated he
was advised by Van Beusekom that he did not require a building permit if,
upon completion, his deck would not be greater than two feet above the
adjacent grade. When a building permit is not required, the Building Code
does not apply.
[4]
Apparently, acting
on a complaint made by a third party, a building inspector, one Kevin Van
Vaals, attended the property to inspect the deck on September 28, 2006.
After inspecting the property, Van Vaals was not certain whether a
building permit would be required and he consulted his supervisor, one
Herman Guta, to determine whether the discretion to not require a building
permit applied. Apparently he was told by Guta that a permit was
required. Accordingly, Van Vaals advised the appellants that a building
permit would be required because they were building a porch not a deck.
As a result, Van Vaals issued a No Permit Order.
[5]
At the time the
inspection was made by Van Vaals, the construction of the deck had not
been completed. Van Vaals apparently was satisfied that the front portion
of the deck met the two foot requirement in that planters had been put
into place in front of the deck, making it readily obvious that the deck
boards were less than two feet above grade, which would have been the top
of the planters. Unfortunately, the planters had not been installed at
the sides of the deck, which is the area Van Vaals measured and he found
to have been in excess of two feet above the grade at that time.
[6]
The deck has now
been completed and the planters have been installed at the sides of the
deck, such that the distance between the grade (the top of the side
planters) and the deck floor is considerably less than two feet.
[7]
In our view, the
appropriate time for inspection would have been the completion of the
project, not at some point midway through construction.
[8]
Relying upon the
advice given in the first instance, the appellants, in our view, did
everything properly on the understanding that with the planters installed,
the distance between grade and the deck floor would be considerably less
than two feet. They acted upon the advice given by a building official
when they sought a building permit.
[9]
In the
circumstances, we are of the view that the decision of Lack J. was
unreasonable and ought to be set aside, and accordingly we do so. The No
Permit Order is hereby rescinded, the costs award of Lack J. set aside,
and the appellants are granted their costs in the amount of $3,500.00.
___________________________
Cunningham A.C.J.S.C.J.
___________________________
Lalonde J.
___________________________
R.D. Gordon J.
Released: October 21, 2008
DIVISIONAL COURT FILE NO.: DC-07-084386-00
DATE:
20081021
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ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J.S.C.J., LALONDE and R.D. GORDON JJ.
B E T W E E N:
DONALD THOMAS UPCHURCH and CARLA PAULINE UPCHURCH
Appellants
- and –
THE CORPORATION OF THE CITY OF OSHAWA
Respondent
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Released: October 21, 2008
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