As a result, they seek an order rescinding or staying the operation of the ConditionalFoundation Building Permit issued
by the city "Until compliance with applicable law isestablished for the exterior wall of the proposed building." The
Evidence The applicants rely on two affidavits sworn by Dan Dencev, the property manager oftheir building. The City's
position can be summarized as follows: the application is moot because the City has now issued a building permitfor the
project and no appeal has been taken from that action; site plan approval is a prerequisite for the issuance of a building
permitunder s. 8(2) of the Building Code Act but is not for a conditional permitissued under s. 8(3); the applicants
received notice of the proposed rezoning of 356 DundasStreet and made no appeal to the Ontario Municipal Board, which
is theappropriate appeal route; and in any event, the zero metre setback pre-existed rezoning and is theexisting setback
for all properties located in the Downtown Area zone in the City, which includes these two properties. The chief building
official shall issue a permit referred to in subsection unless, the proposed building, construction or demolition will
contravenethis Act, the building code or any other applicable law 1 Even though all requirements have not been met to
obtain a permit undersubsection, the chief building official may issue a conditional permit forany stage of construction
if, 1 Subsections to are not included here because none apply.
SUPERIOR COURT OF JUSTICE - ONTARIO RE: 1803275 Ontario Limited and Ludmila A. Dencev, ApplicantsAND: The Corporation
of the City of London and George Kotsifas, Chief BuildingOfficial for the Corporation of the City of London, 2363289
Ontario Inc. andYoussef Lavie, Respondents BEFORE: Rady J. COUNSEL: Laura McKeen, counsel for the applicantsNicole D.
Hall, counsel for the respondent, the Corporation of the City of Londonand George Kotsifas, Chief Building Official for
the Corporation of the City ofLondonAnalee Ferreira, counsel for the respondent, 2363289 Ontario Inc. and YoussefLavieHEARD:
May 12, 2017 ENDORSEMENT Introduction [1] The applicants ask for an order rescinding the issuance of Conditional FoundationBuilding
Permit No. 16258686 by the Corporation of the City of London to therespondent numbered company and Mr. Lavie. They rely
on s. 25 of the Building CodeAct. At the conclusion of the hearing, I advised the parties that the application wasdismissed
for reasons that would follow. The Issue [2] The applicants are the owners of a property located at 350-352 Dundas Street,
wherethere is a two storey building currently leased and occupied by a restaurant and a salon onthe main floor. Two residential
apartments are located on the second floor. CITATION: 1803275 Ontario Limited v. The Corporation of the City of London,2017
ONSC 3279 COURT FILE NO.: 572/17 DATE: 2017/05/31 Immediately to the east of the applicants’ property is a parcel owned
by 2363289 and Mr.Lavie, known municipally as 356 Dundas Street. The owners propose to build a six storeyaffordable housing
apartment dwelling on the property. The proposed building isdesigned with a zero metre set back from the boundary between
the two properties. [4] The applicants say the city failed to properly evaluate the proposed building`s locationbecause
it will have a negative effect on 350-352 Dundas. In particular, it will block theeasterly windows of one of the apartments
on the second floor, impeding light andairflow and causing a variety of safety issues. [5] As a result, they seek an
order rescinding or staying the operation of the ConditionalFoundation Building Permit issued by the city “until compliance
with applicable law isestablished for the exterior wall of the proposed building.” The Evidence [6] The applicants rely
on two affidavits sworn by Dan Dencev, the property manager oftheir building. [7] The City relies on two affidavits sworn
by Peter Kokkoros the Deputy Chief BuildingOfficial (CBO). The other two respondents filed an affidavit from Yossef Lavie.
[8] The parties’ respective records contain many exhibits, including photographs of thesubject properties, drawings of
the proposed buildings, the application for the buildingpermit, the conditional building permit, the relevant bylaw notices
respecting a zoningbylaw amendment, and other pertinent documents. The Parties’ Positions [9] [10] The applicants` position
is summarized at paragraph four above. They say that the CBO should not have issued the building permit because it is
not compliant with applicablelaw, because: site plan approval, which is a prerequisite to the issuance of a buildingpermit,
was not obtained when it was issued; the zero metre set back would not be compliant with the site plan controlbylaw;
and the zero metre set back does not comply with the zoning bylaw. The City’s position can be summarized as follows:
the application is moot because the City has now issued a building permitfor the project and no appeal has been taken
from that action; [3] site plan approval is a prerequisite for the issuance of a building permitunder s. 8(2) of the
Building Code Act but is not for a conditional permitissued under s. 8(3); the applicants received notice of the proposed
rezoning of 356 DundasStreet and made no appeal to the Ontario Municipal Board, which is theappropriate appeal route;
and in any event, the zero metre setback pre-existed rezoning and is theexisting setback for all properties located in
the Downtown Area (DA) zone in the City, which includes these two properties. The remaining defendants adopt and rely
on the City’s submissions. They also submitthat the CBO must issue a permit once compliance with the Building Code Act
and otherapplicable law (as defined) is shown. Further, and the City also said, the CBO’s decisionis to attract deference
and is measured on a reasonableness standard. I note that theapplicants did not address the standard of review. The LawThe
Statutory Framework [12] The relevant sections of the Building Code Act, 1992, S.O. 1992, c. 23, as amended arereproduced
below: 8. (1) No person shall construct or demolish a building or cause a building tobe constructed or demolished unless
a permit has been issued therefor by thechief building official. (1.1) An application for a permit to construct or demolish
a building may bemade by a person specified by regulation and the prescribed form or the formapproved by the Minister
must be used and be accompanied by thedocuments and information specified by regulation. (2) The chief building official
shall issue a permit referred to in subsection (1) unless, (a) the proposed building, construction or demolition will
contravenethis Act, the building code or any other applicable law… 1 (3) Even though all requirements have not been met
to obtain a permit undersubsection (2), the chief building official may issue a conditional permit forany stage of construction
if, 1 Subsections (b) to (f) are not included here because none apply. [11] (b) the chief building official is of the
opinion that unreasonable delaysin the construction would occur if a conditional permit is notgranted; and (c) the applicant
and such other person as the chief building officialdetermines agree in writing with the municipality, upper-tiermunicipality,
board of health, planning board, conservationauthority or the Crown in right of Ontario to, (i) assume all risk in commencing
the construction, (ii) obtain all necessary approvals in the time set out in theagreement or, if none, as soon as practicable,
(iii) file plans and specifications of the complete building inthe time set out in the agreement, (iv) at the applicant’s
own expense, remove the buildingand restore the site in the manner specified in theagreement if approvals are not obtained
or plans filed inthe time set out in the agreement, and (v) comply with such other conditions as the chief buildingofficial
considers necessary, including the provision ofsecurity for compliance with subclause (iv). 25. (1) A person who considers
themselves aggrieved by an order or decisionmade by the chief building official, a registered code agency or an inspectorunder
this Act (except a decision under subsection 8(3) not to issue aconditional permit) may appeal the order or decision
to the Superior Court ofJustice within 20 days after the order or decision is made. [13] Regulation 332/12 under the
Building Code Act provides: 1.4.1.3 Definition of Applicable Law1) For the purposes of clause 8 (2)(a) of the Act, applicable
law means,a) the statutory requirements in the following provisions with respect to thefollowing matters: ... (xx) section
41 of the Planning Act with respect to the approval bythe council of the municipality or the Ontario Municipal Board
ofplans and drawings… [ie. site plan approval] (a) compliance with by-laws passed under sections 34 and 38 of thePlanning
Act and with such other applicable law as may be set outin the building code has been achieved in respect of the proposedbuilding
or construction; (1) The chief building official shall not issue a conditional permit for any stage ofconstruction under
subsection 8(3) of the Act unless compliance with thefollowing applicable laws has been achieved in respect of the proposedbuilding
or construction… [14] None of the applicable laws that are then set out apply here. And notably, 1.31.1.5 doesnot include
s. 41 Planning Act compliance. Jurisdiction [15] An appeal lies from an order or decision of a CBO to a single judge
of the OntarioSuperior Court of Justice. A further appeal lies to the Divisional Court: Building CodeAct, ss. 25(1),
26. The Standard of Review [16] On an appeal from a decision of the CBO, the standard of review is correctness forquestions
of law and reasonableness for questions of fact and questions of mixed fact andlaw2 . Municipal planning and zoning are
specialized areas which fall within the expertiseof the CBO. Most determinations made by CBOs are questions of mixed
fact and law andare entitled to deference on appeal3 . AnalysisMootness [17] There is merit in the respondents’ contention
that the application is moot because noappeal was taken from the subsequent decision to issue the building permit under
s. 8(2). I would have thought that this latter decision would supercede the conditional permitissued pursuant to s. 8(3).
Nevertheless, I heard the parties’ submissions on the meritsand do not consider it necessary to deal with the issue of
mootness. The Need for the Site Plan Approval 2 Toronto District School Board v. Toronto (City), 2014 ONSC 5494 (Div.
Ct), para. 18; Berjawi v. Ottawa (City), [2011] O.J. No. 379 (S.C.J.), para. 12; Dunsmuir v. New Brunswick , [2008] 1
S.C.R 190; Wilson v. Atomic Energy ofCanada Ltd., [2016] 1 S.C.R 770. 3 1.31.1.5. Conditional Permits The applicants’
contention that site plan approval is a prerequisite to the issuance of theconditional permit is not correct. As the
regulations make clear, site plan approval isrequired before a building permit under s. 8(2) of the Act can issue. There
is no suchrequirement under s. 8(3). I note parenthetically that site plan approval was granted priorto the s. 8(2) permit
being granted. [19] Therefore and at the risk of repetition, the definition of applicable law in the regulationdiffers
between s. 8(2) and s. 8(3). As already noted, s. 8(3) does not oblige the CBO toconsider s. 41 of the Planning Act or
the site plan control bylaw before issuing aconditional permit. Downtown Area Zoning [20] At its core, the applicants’
complaint is in respect of the zero metre setback. However, itis the existing setback for all properties in the DA zone
in the City of London. When theproperty was being rezoned, and contrary to the applicants’ contention, they receivednotice.
They did not appeal to the Ontario Municipal Board, which would have been theappropriate avenue of appeal. [21] The applicants
rely on the Site Plan Control Bylaw (C.P.-1455-541) which incorporates aSite Plan Design Manual as Schedule 1. Section
2.5 of the manual provides as follows: Multi-Family Residential Setbacks and Separation SpacesSeparation spaces generally
refers to the space between buildings on thesame site. Setback generally refers to the space between a building and thestreet
line or property line and thereby determines the spaces betweenbuildings on the site and adjacent properties. If balconies
are included in thedesign, setbacks and separation spaces are measured from this face. Separation is also required for
fire protection under the Ontario BuildingCode. The objectives or providing distances between buildings are as follows:
(a) Daylight/Sunlight – Space should be provided around dwellings toensure the provision of daylight. It is also desirable
to provide fordirect sunlight to habitable areas of each dwelling unit, if possible,throughout the year. New housing
should be located so as not tounduly deprive existing dwellings and private outdoor spaces in thesurrounding areas of
adequate sunlight or daylight. (b) Ventilation – The space around the unit should be sufficient topermit natural ventilation
of the dwelling. [22] Section 20 of the Bylaw deals specifically with the London Downtown area. S. 20.3 provides: REGULATIONS
[18] 1) FRONT AND EXTERIOR SIDE YARD DEPTH (MINIMUM/ MAXIMUM) For all properties abutting Dundas Street and Richmond
Street, 1 metre (3.3 feet) for each 2 metres (6.6 feet) of building greater than 15 metres (49.2 feet) in height above
the 15 metres (49.2 feet) height. For all portions of thebuilding between 0.0 metres and 15 metres (49.2 feet) in height,
the maximumsetback permitted shall be 3.0 metres (9.8 feet). 2) BUILDING FORM Buildings may take the form of shopping
centres mixed use buildings or standalone structures. (emphasis original) 3) RESIDENTIAL COMPONENT OF BUILDINGS The required
setback for the residential portion of buildings shall be 1.2 metres (3.9 feet) per 3 metres (9.8 feet) of main building
height or a fraction thereofabove 15 metres (49.2 feet). [23] Table 20.3 provides: REGULATIONS FOR DA ZONE VARIATIONS
Column A B C 1 ZONE VARIATIONS DA1 DA2 2 PERMITTED USES See Section 20.2(1) See Section 20.2(2) 3 LOT FRONTAGE (m) MINIMUM
4 ALL YARDS DEPTHS (m) MINIMUM 3.0 0.0 See Sections 20.3(1) And 0.0 20.3(3) No person shall erect or use any building
or structure, or use any land or causeor permit any building or structure to be erected or used, or cause or permit anyland
to be used, in any DA Zone, variation except in conformity with theregulations as set out below or in Table 20.3 or as
set out on the Zoning Maps. (emphasis added) The applicants submit that s. 2.5 of the Site Plan Design Manual requires
that distancesbetween buildings be considered to ensure adequate light and ventilation betweenabutting properties. This,
they say, was not done. [25] The applicants also submit there is an inconsistency between s. 20.3 of the Bylaw and theTable
because under Category DA1, the provisions of s. 20.3(1) and (3) are to beconsidered. Category DA2 does not contain the
same requirement. [26] I see no inconsistency. The provisions of s. 20.3 are disjunctive and there is no supportor reason
for the word “or” to be read as “and”. The regulation clearly provides that landin the DA zone cannot be used except
in conformity with the Regulations or in Table20.3 or as set out on the zoning maps. With respect only to property in
the DA1 zone, theTable requires the consideration, interpretation or application of s. 20.3(1) and s. 20.3(3). As already
noted, the proposed building falls in the DA2 zone. No consideration of s. 20.3(1) and (3) is required. [27] Further,
s. 2.5 of the Design Manual stipulates that a separation space refers to the spacebetween buildings on the same site
and not separation space between abutting properties. [28] Finally, Mr. Kokkoros deposes in his supplementary affidavit
that: 10. Lastly, I am advised by Mr. Pompilli [the City’s Manager ofDevelopment Planning] and verily believe that Table
20.3 of the City ofLondon Zoning By-Law Z.-1 sets out the zoning regulations for the DA Zonevariations, DA1 and DA2.
Table 20.3 provides for 0m setbacks within theDA2 zone and only requires consideration, interpretation or application
of20.3(1) and 20.3(3) for the DA1 zone. The proposed building is not the DA1 zone and in my opinion I was not required
to consider, interpret or apply s. 20.3(3). [29] I note that Mr. Kokkoros was not cross examined on his affidavit and
his evidence isunchallenged. [30] I am not persuaded that there is any basis to interfere with his decision to issue
theConditional Building Permit. It falls within the range of reasonable decisions. It satisfiesthe requirements of justification,
transparency, intelligibility. [31] The applicants’ public policy argument is misplaced. Since the appeal was argued,
theDivisional Court released its decision in Wheeler v. Syrowik, 2017 ONSC 2901, whichbears a similarity to this case.
It was an appeal of a decision of a single judge of theSuperior Court of Justice who allowed an appeal from a decision
of a CBO to issue abuilding permit under s. 8(2) of the Building Code Act. A similar kind of public policyargument had
been advanced before the appeal judge and found favour. In allowing theappeal, the panel noted: [72] I agree that the
use made by the appeals judge of the Official Plan andthe OMB decision was to import land use planning and policy considerationsinto
his decision. He was clear that this was what he was doing: [24] This is wrong in principle. This is not the role of
the CBO in considering anapplication for a building permit. It is likewise not the role of a judge sittingon appeal from
a decision of the CBO to issue a building permit. If anapplication complies with s. 8(2) of the Building Code Act, then
the permitmust be granted, regardless of the CBO’s or the judge’s view of thedesirability of the project. If the application
does not comply with s. 8(2),then the permit must be denied, regardless of the CBO’s or the judge’s viewof the desirability
of the project. [32] It seems to me that the same analysis applies equally to s. 8(3) applications. [33] For these reasons,
the application is dismissed. The parties may make brief writtensubmissions on cost, first from the respondents within
two weeks and the applicants twoweeks later. “Justice H. A. Rady” Justice H. A. RadyDate: May 31, 2017 I believe it is
appropriate when examining the zoning bylaw and the officialplan to take an overview as to whether or not this application
is desirablefrom a planning and public interest point of view…