Hastings Corp. v. Borooah, (2004) 188 O.A.C. 282 (DC)

• Judge: MacFarland, Howden and Linhares de Sousa, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: June 22, 2004
• Jurisdiction: Ontario
• Citations: (2004), 188 O.A.C. 282 (DC)

Hastings Corp. v. Borooah (2004), 188 O.A.C. 282 (DC)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JN.095

Hastings Corporation Ltd. (applicant/appellant in appeal) v. Ann Borooah, in her capacity as Chief Building Official of the City of Toronto; The City of Toronto; and MUC Shelter Corporation (respondents/respondents in appeal)

(No. 145/04)

Indexed As: Hastings Corp. v. Borooah et al.

Court of Ontario

Superior Court of Justice

Divisional Court

MacFarland, Howden and Linhares de Sousa, JJ.

June 22, 2004.

Summary:

Hastings applied by way of appeals under s. 25(1) of the Building Code Act, 1992 (the Code) (Ont.) to declare invalid and to order revocation or stay of two building permits issued by the Chief Building Official of the City of Toronto under s. 8(2)(a) of the Code to the MUC Shelter Corporation for the erection on its property of a nine storey building to provide temporary housing, advice and assistance to refugees and refugee claimants.

The Ontario Superior Court, in a decision reported [2004] O.T.C. 147, dismissed the appeals. Hastings appealed.

The Ontario Divisional Court dismissed the appeal.

Land Regulation - Topic 3204

Land use control - Building or develop­ment permits - Issue of - Validity of - [See Land Regulation - Topic 3239 ].

Land Regulation - Topic 3209

Land use control - Building or develop­ment permits - Authority or jurisdiction to issue - The Chief Building Official (CBO) of the City of Toronto, acting according to s. 8(2)(a) of the Building Code Act, 1992 (Ont.), issued two building permits to the MUC Shelter Corporation for the erection on its property of a nine storey building to provide temporary housing, advice and assistance to refugees and refugee claim­ants - Under the Building Code Act the CBO was required to issue a building permit unless the proposed building contra­vened this Act, the building code, or any other applicable law (s. 8(2)(a)) - When the application for the building permits was made, the applicable Municipal Shelter By-law was not yet in force because of appeals to the Ontario Municipal Board - A motions judge upheld the CBO's deci­sion - The Ontario Divisional Court af­firmed the motions judge's decision - The court ruled that the motions judge con­sidered the issue of "applicable law" cor­rectly - The court also found no error in his conclusion that some future possible change to the Municipal Shelter By-law did not alter the correctness of the CBO's decision to issue the permits pursuant to her duty to do so under s. 8(2) of the Building Code Act - See paragraphs 21 to 33.

Land Regulation - Topic 3239

Land use control - Building or develop­ment permits - Judicial review or appeals to courts - The Chief Building Official (CBO) of the City of Toronto issued two building permits to the MUC Shelter Cor­poration for the erection on its property of a nine storey building to provide temporary housing, advice and assistance to refugees and refugee claimants - The CBO decided that the proposed use in zoning terms came within those permitted in the AR zone as a "hostel" with "dwelling units" rather than a "crisis care facility" - In the zoning bylaw, the terms "hostel" and "crisis care facility" were mutually exclusive - If the proposed use was a crisis care facility, it could not be a hostel - The Ontario Divi­sional Court ruled that the CBO faced issues of mixed fact and law, as in most cases of zoning classification - The stand­ard of review here was "closer to that of correctness" - The court affirmed the result of a motions judge's decision that had upheld the CBO's decision - See para­graphs 1 to 18.

Cases Noticed:

Runnymede Development Corp. v. 1201262 Ontario Inc. et al., [2000] O.T.C. 216; 47 O.R.(3d) 374 (Sup. Ct.), refd to. [paras. 7, 10].

Thomas Furniture Ltd. v. Toronto (City) Chief Building Official (2002), 33 M.P.L.R.(3d) 208 (Ont. Div. Ct.), consd. [paras. 7, 17].

Ottawa (City) v. Chief Building Official of Ottawa (City) et al. (2003), 180 O.A.C. 48; 2003 CarswellOnt 5280 (Div. Ct.), refd to. [para. 10].

Lock et al. v. McConnell et al., [2001] O.T.C. 664; 22 M.P.L.R.(3d) 66 (Sup. Ct.), refd to. [para. 10].

Lock v. Middlesex Centre (Township) Chief Building Official - see Lock et al. v. McConnell et al.

Welwood et al. v. Farrell et al., [2002] O.T.C. 286; 29 M.P.L.R.(3d) 1 (Sup. Ct.), refd to. [para. 10].

Rotstein v. Oro-Medonte (Township) et al., [2002] O.T.C. 1011; 34 M.P.L.R.(3d) 266 (Sup. Ct.), refd to. [para. 10].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577, consd. [para. 12].

Kiewet (Peter) Sons v. Tillsonburg (Town) (2003), 28 M.P.L.R.(3d) 277 (Sup. Ct.), dist. [para. 14].

Statutes Noticed:

Planning Act, R.S.O. 1990, c. P-13, sect. 34(30) [para. 24].

Counsel:

Christopher J. Williams and J. Mascarin, for the applicant/appellant;

Diana W. Dimmer and Thomas Wall, for the Chief Building Official and The City of Toronto;

William C. McDowell and W. Grant Worden, for MUC Shelter Corporation.

This appeal was heard on June 2, 2004, by MacFarland, Howden and Linhares de Sousa, JJ., of the Ontario Divisional Court.

The decision of the Divisional Court was delivered by Howden, J., and released on June 22, 2004.