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Statutory Interpretation - "Decision". Paisley & Whitelaw v. The Chief Building Official of the City of Guelph [meaning of 'order or decision']
In Paisley & Whitelaw v. The Chief Building Official of the City of Guelph (Div Ct, 2026) the Divisional Court dismissed a condo developer's second appeal, this brought against the dismissal of "an appeal to the Superior Court pursuant to s. 25 of the Building Code Act, 1992 ... to overturn an “order or decision” of the respondent .... Chief Building Official (the “respondent” or the “CBO”), respecting the sufficiency of parking at the project."
Here the court considers BCA s.25 ['Appeal to court'], in particular whether an appealable "order or decision" was made. While these reasons are directly applicable to this Building Code context, IMHO the meaning of 'decision' has broader application to all of: appellate, judicial review and statutory interpretation law:[18] As I have said, Fowler Byrne J. dismissed the appeal, which was brought pursuant to s. 25 of the Act, which I quote in part here (emphasis added):25(1) A person who considers themself aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under this Act (except a decision under subsection 8(3) not to issue a conditional permit) may appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made. ....
5.2.1 Did the appeal judge fail to apply the correct legal principles?
[32] The appeal judge carefully considered the applicable law, reviewing in detail the judgment of Leach J. in Pigozzo, wherein the court undertook a full analysis of s. 25 of the Act and the meaning of “order or decision”. In coming to her conclusion that the CBO’s emails of December 4, 2023, and September 6, 2024, did not constitute orders or decisions, the appeal judge (at para. 29 of her reasons) quoted the following passage from Pigozzo (at para. 13; emphasis in the original):... the rights of appeal provided in s.25(1) of the [Act] are expressly limited to a decision “made” by a CBO, registered code agency or an inspector; i.e., an extant decision, relating to an established set of facts, in respect of which an official actually was called upon to make a determination pursuant to the BCA and did so. In that regard:. No rights of appeal are granted in relation to possible or prospective future decisions, even when a CBO, registered code agency or an inspector goes so far as to indicate, in writing, his or her intentions as to how he or she is likely to decide if and when formally called upon to make such a decision. [33] The appeal judge then continued by noting Leach J.’s reference to the judgment of Gauthier J. in Caisse Populaire Nolin de Sudbury Inc. v. Greater Sudbury (City), [2007] O.J. No. 778 (S.C.J.). In that case, the City’s solicitor had advised a landowner that the demolition of a staircase would not be approved unless another staircase was in place. Although neither Fowler Byrne J. nor Leach J. quoted Greater Sudbury, it is apt to quote the following passage here (para. 24 – 26; emphasis added):The removal of the steel stair case would be the demolition of a material part of the building located at 176 Larch Street. A demolition permit would be required to effect such removal.
The Applicant has not made any application for a permit, in the prescribed form, as required by Subsection 8(1.1) of the [Act].
Consequently, there has been no decision by the chief building official which could be subject to appeal, in accordance with Section 25 of the [Act], ... [34] In the present case, drawing on both Greater Sudbury and Pigozzo, the appeal judge agreed with Leach J.’s conclusions, which she summarized as follows (at para. 28):... the right of appeal conferred by s. 25(1) of the [Act] does not permit appeals in relation to decisions that may or may not be made by a CBO in the future, even if the CBO provides an indication of what he or she may contemplate doing in that regard. [35] The appeal judge concluded that in the present case, where the appellant had not applied for occupancy permits, the CBO had not made any decision respecting the related building permit as required by s. 25. Instead, as the CBO argued, his emails were nothing more than “pre-emptive emails, written in the hope of avoiding a refusal of their building permit, but in no way constitute an order or decision within the meaning of s. 25(1) of the [Act].”
[36] The appellant does not take issue with the correctness of the reasoning in either Pigozzo or Greater Sudbury. Instead, both in this court and before Fowler Byrne J., the appellant submits that those cases are distinguishable from the present case and that the failure to recognize as much led the appeal judge to err in law by failing to apply the correct legal principles. In this respect, the appellant says that the emails from the CBO admit of no ambiguity, clearly express exactly what he would do in certain circumstances, and came directly from the CBO, not mediated by the CBO’s counsel, as in both Pigozzo and Greater Sudbury.
[37] In my view, the emails from the CBO in the present case were expressly contingent and forward-looking (“if” inspections and occupancy permits are requested without adequate parking having been constructed, “then” the building permit will be revoked). As the appellant never requested occupancy permits in the absence of adequate parking, the CBO never revoked the building permit. At the time of the argument of this appeal, it was still the case that no such requests had been made. The fact that the CBO said that a decision would be made in the future is not the same as making a decision or issuing an order. The requisite pre-conditions for the making of such a decision never crystallized so no decision was ever made. To paraphrase Pigozzo, there was no extant decision relating to an established set of facts in respect of which the CBO was required to make a determination and did so. There was, therefore, no decision or order from which the appellant could appeal. The fact that the emails were sent by the CBO himself does not alter their contingent nature and is, in my view, a distinction between the cases which is not meaningful.
[38] I note that there are good policy reasons to approach this jurisdictional question as the trial judge did. As Leach J. said in Pigozzo (at para. 13), a CBO may offer its opinion on a legal question and even put that opinion in writing without having made an order or decision. Where no decision has been made, such an opinion might be revisited. Leach J. put the point as follows:Whatever course of action an official may be contemplating in relation to a formal determination to be made in the future, he or she accordingly has and should have the ability to revisit his or her initial thoughts when making a formal determination based on the precise facts prevailing at the time a formal decision needs to be made. Were it otherwise, the ability of such officials to take changing circumstances and all information relevant to their decisions into account would be constrained, and frustrate the purpose of the Act to make decisions appropriate to evolving circumstances. [39] I add to these observations that a CBO’s expression of opinion allows the builder to know that opinion, to engage with the CBO about it, to challenge it in discussion, and to formulate solutions to the issue or issues identified by the CBO, including by working with the CBO to find those solutions. In part, that is what happened here in connection with towers A and B. If every expression of a position by a CBO opened a right of appeal, CBO’s would be reticent to express them and all these benefits would be lost.
[40] In any case, the appellant also submits that the application judge erred by distinguishing and failing to apply the decisions on which the appellant relies: Wolfond v. North York (City) Building Commissioner (1990), 1990 CanLII 6682 (ON HCJ), 74 O.R. (2d) 466 (Dist. Ct.) and Woodglen & Co. v. North York (City), [1984] O.J. No. 3320 (Div. Ct.). In these cases, the courts confirmed that a communication need not be in any particular form to qualify as a decision, as long as the communication expresses a final determination of the rights of the person to whom it applies. The appellant adds, relying on Waxman v. Ontario (2006), 2006 CanLII 35617 (ON SCDC), 216 O.A.C. 353 (Div. Ct.), that the court may find that a decision has been made when in informal communications the decision-maker reveals that it has already made up its mind and the result of any formal proceeding is preordained.
[41] I agree with the appeal judge and with the respondent that Wolfond does not assist the appellant. There was no issue in Wolfond about whether a decision had been made, because the municipality had plainly refused the builder a building permit. Wolfond is relevant only in that the court relied on an earlier informal communication by the municipality confirming that a permit would be issued given that the proposed building complied with all applicable laws at that time. Before the permit could be issued, however, a new municipal by-law was passed, and the proposed building was no longer compliant. In those circumstances, the court held that the builder ought to have had his permit.
[42] As Fowler Byrne J. concluded (at para. 41), the facts in the present case are “quite different.” The appellant was never advised by the CBO that it would have its occupancy permits, and although the building inspector did not raise parking issues with the appellant, the appellant at all relevant times knew that compliance with the zoning by-law was required for the purposes of the building permit. The appellant was further aware, as the application judge found, that the CBO insisted on compliance with the zoning by-law by providing adequate parking to residents of the project. As the respondent points out, the CBO has a statutory duty under the Act to ensure that no building permit is issued unless compliance with the Act, the Code and all “applicable law” is demonstrated: the Act, s. 8(2)(a). The definition of “applicable law” for the purposes of s. 8(2) of the Act is set out in the Code and includes by-laws: the Code, s. 1.4.1.3(1)(f).
[43] Moreover, unlike Wolfond, there was no intervening change in the law, nor did the appellant make any application for a permit. In short, Wolfond is distinguishable from the present case, and the appeal judge made no error in so concluding.
[44] Similarly, in Woodglen (to which the application judge did not refer), there was no debate that a decision had been made as a permit had been refused. The real issue was whether the municipality’s official plan was included in the definition of “applicable law.” The court held that it was not. Since the proposed building complied with by-laws in force at the time of the application for the permit, the permit ought to have been granted. These facts and conclusions have no bearing on this case.
[45] As for the decision in Waxman, this case is not about whether a decision or order was made under s. 25 of the Act. On the contrary, Waxman is a case about procedural fairness, the need for there to be meaningful production in administrative law cases, and the need to give litigants time to prepare a defence. The circumstances in Waxman and the exceptional order made in that case have no bearing on the issues in this appeal.
[46] To summarize, I am of the view that the appeal judge did not fail to advert to and apply the relevant legal test. By referring to and applying Pigozzo and Greater Sudbury she did exactly that. She made no extricable error in law. She did not err by distinguishing the cases relied upon by the appellant.
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