In Ottawa (City) v. Lauzon, 2013 ONSC 2619, the Ontario Superior Court of Justice considered whether or not the City of Ottawa (the “City”) had the jurisdiction to consider heritage factors related to compliance with the Ontario Heritage Act, R.S.O. 1990, c. O.18 (the “OHA”) in making an order pursuant to ss. 15.9(4) and 18(1)(a) and (c) of the Building Code Act, 1992, c. 23 (the “BCA”).
The owner of a historical building located in a Heritage Conservation District sought an order from the City to demolish the building, without considering the possibility of remediating the building to preserve its heritage structure. Both the owner and the City were in agreement that the building was in an unsafe condition.
In response to a report prepared by the owner’s engineer that the building should be demolished because it was a risk to public safety, the City issued an order to the owner to remedy the unsafe building. The City also ordered the owner to provide a peer review of the engineer’s report by a heritage structural engineer “commenting on the ability to remediate the building”. The Chief Building Official (“CBO”) was not prepared to issue a demolition permit until the City was satisfied that the owner had complied with the OHA.
The owner obtained a peer review (the “Peer Review Report”) of the engineer’s report, but refused to provide a copy of the Peer Review Report to the City. The City then issued an order to the peer reviewer requiring him to provide the City with a copy of the Peer Review Report and all information in his possession related to the building.
Central Question Considered by the Court
The central question considered by the Court was whether or not the City had the jurisdiction to order the peer reviewer to provide a copy of the Peer Review Report, if it was not subject to litigation privilege.
The owner submitted that any order issued under ss. 15.9(4) and 18 of the BCA is limited to ensuring the safety of the building and that these sections of the BCA do not give the City jurisdiction to consider compliance with the OHA.
The City submitted that s. 18 is not limited only to information related to the safety of the building and that it had the authority to require information from any person concerning a matter related to the building. The City submitted that this includes authority to require information from an engineer who has prepared a report assessing the possibility of remediating a heritage building.
The City also referred to s. 8 of the BCA and submitted that the OHA is “other applicable law” under s. 8(2)(a) of the BCA, and that s. 42(1) of the OHA would prevent an owner from demolishing a heritage property without obtaining a permit from the City.
Findings of the Court
In his reasons, Smith J. commented on the purposes, objectives and scheme of the BCA, which requires compliance with other applicable laws, which would include the OHA, before a demolition permit is issued, and found as follows at paras 48 and 49:
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.
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.
The Court concluded that the City had the jurisdiction to order the peer reviewer to produce a copy of the Peer Review Report, provided it was not subject to litigation privilege, as it concerned 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.
The Court also found that the Peer Review Report was not the subject of litigation privilege as it had been prepared to respond to the City’s order requiring a peer review by a heritage structural engineer of the report prepared by the owner’s engineer.
On 23 May 2013, the Ontario Superior Court of Justice dismissed a motion brought by the owner for a stay of the Court’s decision dated 8 May 2013. Written reasons regarding the Court’s decision denying the motion for a stay were issued on 30 May 2013 (Gregoire v. Lauzon, 2013 ONSC 3182).