Executive Summary: Key Legal and Evidentiary Issues

• The necessity of a building permit for the respondent’s structure under the Nova Scotia Building Code Act due to its use or intended use for human habitation.

• Interpretation of “accessory building” and whether the respondent’s building qualified for exemption from permit requirements.

• Admissibility and sufficiency of photographic evidence, including the application of the best evidence rule and alleged tampering.

• Validity of municipal orders issued by the building official and the respondent’s compliance with those orders.

• Consideration of procedural fairness, including allegations of trespass, breach of privacy, and professionalism of municipal officials.

• Determination of the appropriate remedy, including the municipality’s authority to recover costs through property tax mechanisms.

Facts of the case

The Municipality of the County of Annapolis commenced an application in chambers against Gary Remigio Pereira pursuant to section 20 of the Building Code Act, R.S.N.S. 1989, c. 46. The municipality alleged that Mr. Pereira constructed a building on his property in Annapolis County without a building permit, in contravention of sections 8(a) and 19(1)(b) of the Act. The municipality sought an order requiring Mr. Pereira to obtain a building permit within 30 days or, failing that, to remove or demolish the building.

The parties agreed that, under section 9(2) of the Nova Scotia Building Code Regulations, “accessory buildings” not greater than 20 square metres in area do not require a building permit unless otherwise required by municipal by-law. They also agreed there was no evidence the building exceeded 20 square metres, and that the property’s zoning did not require a main building for the structure to be considered accessory. The dispute centered on whether the building was an “accessory building” exempt from permit requirements or whether it was used or intended for human habitation, which would require a permit regardless of size.

Mr. Pereira admitted he continued construction, did not apply for a building permit, and occupied the structure. He stated he used the building for animals, tools, musical instruments, and as a studio with a computer. On cross-examination, he acknowledged the building was insulated, had a sink, plumbing, a bathroom with waste collected in a bucket, a tub for a dog, electricity supplied by generator and solar panels, a couch for animals, a loft used as a studio, antique furniture, and a woodstove. The municipality argued these features indicated use for human habitation.

Discussion of policy terms and statutory clauses

Section 8(a) of the Building Code Act prohibits constructing a building to which the Act applies unless a permit has been issued and is in force. Section 19(1)(b) makes it an offence to fail to comply with any order or direction made under the Act or its regulations. Section 20(2) gives the court discretion to make orders where a contravention has been established. The Nova Scotia Building Code Regulations exempt accessory buildings under 20 square metres unless otherwise required by by-law, but this exemption does not apply if the building is used for human habitation.

The court considered the meaning of “accessory building” and whether the respondent’s building was used or intended for human habitation. The judge found that a statement made by Ms. Pillon, an occupant, during a site visit—admissible as a spontaneous utterance—supported the conclusion that the building was used or intended to be used for human habitation. The court also considered the respondent’s refusal to provide interior photos and his strong beliefs about property rights and privacy.

Evidentiary and procedural issues

Mr. Pereira challenged the admissibility of photographic evidence, arguing that the photos lacked metadata and were not originals. The court found that authenticated copies of photos are admissible and that any issues with resolution or completeness did not affect the material issues. The court also found that any additional photos, if they existed, would not have shed light on whether a building permit was required, as the building official did not enter the structure.

The respondent raised issues of alleged trespass, breach of privacy, and lack of professionalism by municipal officials. The court found that the building official was lawfully inspecting the property during regular work hours and did not require a warrant. The court acknowledged some lack of professionalism but found it did not justify refusing or modifying the remedy sought by the municipality.

Outcome and remedy

The court found that Mr. Pereira contravened sections 8(a) and 19(1)(b) of the Act. The court ordered that Mr. Pereira, on or before the 30th calendar day following issuance of the order, either submit a fully and properly completed application for a building permit from the municipality (with any applicable fees) or remove or demolish the building. If he failed to do so, the municipality was authorized to enter the property, remove or demolish the building at Mr. Pereira’s expense, and recover the expense by adding it to the property taxes as a first lien, with the possibility of a tax sale. If Mr. Pereira submitted an application and the permit was refused, he was required to either seek judicial review or remove or demolish the building. Mr. Pereira was also required to allow municipal officials unimpeded access for inspection if a permit was issued and to refrain from occupying the building for human habitation until permitted by the municipality. The municipality was permitted to recover all costs and expenses associated with removal or demolition under the Municipal Government Act by adding them to property taxes.

The successful party was the Municipality of the County of Annapolis. The total monetary award or costs were not specified in the decision; instead, the municipality was granted authority to recover actual expenses of removal or demolition as a first lien on the property, and the issue of legal costs was reserved for further written submissions if the parties could not agree.