Executive Summary: Key Legal and Evidentiary Issues

• Applicant claimed that emails from the Chief Building Official (CBO) constituted a formal “order or decision” under section 25(1) of the Building Code Act (BCA).

• The emails warned of potential revocation of building permits if parking did not comply with zoning by-laws.

• Court determined that these communications were pre-emptive and did not amount to an appealable decision.

• Applicant argued that the City’s refusal to issue permits due to zoning concerns overstepped the CBO's jurisdiction under the BCA.

• The judge rejected expert opinion evidence on statutory interpretation as inadmissible and unnecessary.

• Temporary relief was granted to maintain a reduced parking standard pending a decision from the Ontario Land Tribunal.

Facts and procedural background

Paisley & Whitelaw Inc. (P&W) is the developer of a residential condominium project in Guelph, known as the West Peak Project. The development includes three residential towers and a 2.5-storey parking structure. While construction of the residential buildings was nearing completion, the parking structure had not yet been built. The City of Guelph’s zoning by-law required a minimum parking ratio of 1.27 spaces per residential unit, but P&W had only provided temporary surface parking, below the required amount.

As P&W prepared to seek occupancy permits for the final units in Building C, the City’s Chief Building Official (CBO), Jeremy Laur, sent email communications warning that any request for occupancy inspections made without the required on-site parking would lead to the revocation of the building permit. P&W viewed these emails as final decisions effectively preventing it from applying for occupancy and sought a declaration from the court that the emails constituted “orders or decisions” under section 25(1) of the Building Code Act, thereby triggering a right of appeal.

Court’s analysis of whether an “order or decision” existed

The central issue was whether the CBO’s emails on December 4, 2023, and September 6, 2024, constituted appealable “orders or decisions” under section 25(1) of the BCA. The court emphasized that under the BCA, appeal rights are only triggered by actual, made decisions—not hypothetical or anticipatory statements about what a CBO may do in the future. The CBO had not yet received any formal request for occupancy inspection for Building C, and no final inspection had taken place. Therefore, there was no decision to deny occupancy and no revocation of any permit had occurred.

The court relied on prior case law, including 1353837 Ontario Inc. v. Pigozzo and Caisse Populaire Nolin de Sudbury Inc. v. Greater Sudbury, to confirm that appeal rights under the BCA only arise once a determination is made based on a crystallized set of facts. In contrast to exceptional cases like Pedwell v. Town of Pelham, where bad faith and collusion were found, the court noted that there was no allegation of bad faith by the City of Guelph. The City had consistently communicated its position and worked collaboratively with P&W to address parking deficiencies.

Rejection of expert evidence and statutory interpretation

Both parties filed expert opinion evidence on whether the emails could be interpreted as decisions under the BCA. The court found this evidence inadmissible, emphasizing that statutory interpretation is a matter of law for the court to determine. It applied the modern principle of statutory interpretation and confirmed that anticipatory communications do not amount to appealable decisions.

Outcome and status quo order

The court dismissed the application, finding no jurisdiction to grant relief in the absence of an appealable order or decision under the BCA. However, recognizing the practical challenges of immediately enforcing parking requirements, the court preserved the temporary arrangement agreed upon earlier between the parties. This included a reduced parking ratio of 1.1 spaces per unit, to remain in effect until the Ontario Land Tribunal rendered its decision on P&W’s separate appeal regarding the required number of parking spaces.

In conclusion, the application was dismissed, but the court allowed limited occupancy and prohibited revocation of permits pending the OLT decision, provided that P&W maintained 1.1 parking spaces per occupied unit and continued to cooperate with the City.