1. Property Standards Appeal Committee Procedures (updated Aug 2019)

2. Introduction GARRY J. ANDERSON C.P.S.O. CMMIII
MANAGER, PROPERTY STANDARDS & BYLAWS
CITY OF BRANTFORD
Ext.5284
OAPSO PAST PRESIDENT

3. OAPSO Founded in 1974 June 1992 OAPSO Act – Private Members Bill
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Education

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3 levels – Parts 1,2 and 3
3 components to each level
Investigation, Legal and Construction
Assignments
Exams +70%

5. OAPSO Dedicated Training Toronto, Ottawa and Thunder Bay
OAPSO Chapters
OAPSO Regional Conference

6. Overview
The intent of this session is to provide a general overview of the legislation governing appeal committee proceedings and the various processes available

7. Overview
It must be understood that the process is not as clearly defined as other types of proceedings may be
Thus there can be a wide variety of approaches throughout municipalities

8. Agenda Enforcement The Bylaw The Order Legislation (BCA) The Committee
The Hearing
Appeals
Case Law

9. PS Appeal Committee The PS Committee is a quasi-judicial body
As such it differs from a general Council (advisory) Committee
The PS committee is liberal in its setup yet constrained by its responsibilities
Committee – similar in function to a court

10. Property Standards Bylaw Enforcement
Driven by complaints
Report to Council
Council adopts policy
Superior public relations skills
“thick skin”
Vehicles, equipment, uniforms
Networking is very important
OAPSO, OBOA, MLEOA, AMCTO, PAO

11. What is Property Standards?
If its broke, fix it
If it used to be there, replace it
If it is no longer required, remove it

12. Duty to inspect
Once an inspection has commenced, the municipality has a legal obligation to enforce its bylaw
Be thorough and diligent throughout the inspection process
Mortimer v. Cameron

13. Complaints Love them Establish municipal policy
Phone, , in person
Complainant anonymity
Vexatious complaints

14. Preparing a Property Standards Bylaw
Preamble
Residential and non-residential
Wiring, heating, plumbing, structural integrity, safety and health hazards, pest prevention and general site appearance
Should be tailored to your municipality
Planning Act replaced by Building Code Act
Penalty section refers to Ontario Building Code Act

15. Ontario Building Code Act Definitions
“committee” means a property standards committee established under section 15.6;
“occupant” means any person or persons over the age of 18 years in possession of the property
“owner” includes,
(a) the person for the time being managing or receiving the rent of the land or premises in connection with which the word is used, whether on the person’s own account or as agent or trustee of any other person, or who would receive the rent if the land and premises were let, and
(b) a lessee or occupant of the property who, under the terms of a lease, is required to repair and maintain the property in accordance with the standards for the maintenance and occupancy of property; (“propriétaire”)

16. Ontario Building Code Act Authority to Pass Bylaw
S.15.1(3) The council of a municipality may pass a by-law to do the following things if an official plan that includes provisions relating to property conditions is in effect in the municipality  or if the council of the municipality has adopted a policy statement as mentioned in subsection (2):
1. Prescribing standards for the maintenance and occupancy of property within the municipality or within any defined area or areas and for prohibiting the occupancy or use of such property that does not conform with the standards.
2. Requiring property that does not conform with the standards to be repaired and maintained to conform with the standards or the site to be cleared of all buildings, structures, debris or refuse and left in graded and levelled condition. 1997, c. 24, s. 224 (8).

17. Ontario Building Code Act Inspection without warrant
S.15.2(1) Where a by-law under section 15.1 is in effect, an officer may, upon producing proper identification, enter upon any property at any reasonable time without a warrant for the purpose of inspecting the property to determine,
(a) whether the property conforms with the standards prescribed in the by-law; or
(b) whether an order made under subsection (2) has been complied with. 1997, c. 24, s. 224 (8).

18. Ontario Building Code Act Inspection - Order
S.15.2(2) An officer who finds that a property does not conform with any of the standards prescribed in a by-law passed under section 15.1 may make an order,
(a) stating the municipal address or the legal description of the property;
(b) giving reasonable particulars of the repairs to be made or stating that the site is to be cleared of all buildings, structures, debris or refuse and left in a graded and levelled condition;
(c) indicating the time for complying with the terms and conditions of the order and giving notice that, if the repair or clearance is not carried out within that  time, the municipality may carry out the repair or clearance at the owner’s expense; and
(d) indicating the final date for giving notice of appeal from the order. 1997, c. 24, s. 224 (8).

19. Ontario Building Code Act Service and Posting of Order
s.15.2(3) The order shall be served on the owner of the property and such other persons affected by it as the officer determines and a copy of the order may be posted on the property. 1997, c. 24, s. 224 (8).

20. Ontario Building Code Act Appeal of an Order
S.15.3(1) An owner or occupant who has been served with an order made under subsection 15.2 (2) and who is not satisfied with the terms or conditions of the order may appeal to the committee by sending a notice of appeal by registered mail to the secretary of the committee within 14 days after being served with the order. 1997, c. 24, s. 224 (8).

21. Ontario Building Code Act Confirmation of Order
s. 15.3(2) An order that is not appealed within the time referred to in subsection (1) shall be deemed to be confirmed. 1997, c. 24, s. 224 (8).

22. Ontario Building Code Act Duty of Committee
s.15.3(3) The committee shall hear the appeal. 2002, c. 9, s. 24.

23. Ontario Building Code Act Powers of Committee
s (3.1) On an appeal, the committee has all the powers and functions of the officer who made the order and the committee may do any of the following things if, in the committee’s opinion, doing so would maintain the general intent and purpose of the by-law and of the official plan or policy statement:
1. Confirm, modify or rescind the order to demolish or repair.
2. Extend the time for complying with the order. 2002, c. 9, s. 24.
C.R.E.A.M

24. Scope of Authority It is not the jurisdiction of the Committee to
Critique the bylaw
Suggest changes to operational procedures of the Officers
Editorialize
But should be used as a resource

25. Extension of time
Committee may wish to provide different deadlines for various work required
In that case, the Committee should consider separating the Order into 2 separate parts for compliance dates

26. Extensions For example
Schedule A Part 1 – work to be completed by December 3rd
Schedule A Part 2 – work to be completed by March 15th

27. Committee Can the Committee remove items from the Order?
Yes, if they have been complied with and are no longer an issue or if the Committee feels the item is not justified
Can the Committee add new items to the Order?
NO! Can only deal with those items which were originally on the Order. New items require a new Order.

28. Ontario Building Code Act Appeal to Court
s.15.3(4) The municipality in which the property is situate or any owner or occupant or person affected by a decision under subsection (3.1) may appeal to the Superior Court of Justice by notifying the clerk of the municipality in writing and by applying to the court within 14 days after a copy of the decision is sent. 2002, c. 9, s. 24.

29. Ontario Building Code Act A.M.P.S.
Section s is new to Property Standards Bylaw Enforcement
Administrative monetary penalty system
To promote compliance
Shall not be punitive in nature
Shall not exceed amount reasonably required to obtain compliance

30. Ontario Building Code Act Lien
s. 15.4(4) If an order of an officer under section 15.2 (2) is not complied with in accordance with the order as deemed confirmed or as confirmed or modified by the committee or a judge, the municipality may cause the property to be repaired or demolished accordingly. 1997, c. 24, s. 224 (8).

31. Ontario Building Code Act Right of Entry
S.16(1) Despite sections 8, 12, 15, 15.2, 15.4, 15.9 and , an inspector or officer shall not enter or remain in any room or place actually being used as a dwelling unless,
(a) the consent of the occupier is obtained, the occupier first having been informed that the right of entry may be refused and entry made only under the authority of a warrant issued under this Act;
(a.1) a warrant issued under this Act is obtained;

32. The Legislation Section 15.6 of the Building Code Act
A by-law passed under section 15.1 shall provide for the establishment of a committee composed of such persons, not fewer than three, as the council considers advisable to hold office for such term and on such conditions as the by-law may establish. 1997, c. 24, s. 224 (8).

33. Legislation Filling of vacancies
S.15.6(2) The council of the municipality shall forthwith fill any vacancy that occurs in the membership of the committee. 1997, c. 24, s. 224 (8).
Compensation
S.15.6(3)  The members of the committee shall be paid such compensation as the council may provide. 1997, c. 24, s. 224 

34. The Legislation Election of Chair
s.15.6(4) The members shall elect a chair from among themselves; when the chair is absent through illness or otherwise, the committee may appoint another member as acting chair. 1997, c. 24, s. 224 (8).
Quorum
(5) A majority of the members constitutes a quorum for transacting the committee’s business. 1997, c. 24, s. 224 (8).
Secretary
(6) The members shall provide for a secretary for the committee. 1997, c. 24, s. 224 (8).
Routinely a function of the Clerks Office

35. Legislation Keeping of records
s.15.6(7) The secretary shall keep on file the records of all official business of the committee, including records of all applications and minutes of all decisions respecting those applications, and section 253 of the Municipal Act, 2001 or section 199 of the City of Toronto Act, 2006, as the case may be, applies with necessary modifications to the minutes and records. 2002, c. 17, Sched. F, Table; 2006, c. 32, Sched. C, s. 3 (3).
No statutory requirement to record hearings, but may be internal legal policy

36. Building Code Act
s.15.6 (9) The committee shall give notice or direct that notice be given of the hearing of an appeal to such persons as the committee considers advisable. 1997, c. 24, s. 224 (8).

37. The Legislation
The BCA permits the Committee to adopt its’ own rules of procedure
This can relate to matters such as adjournments, evidence and disclosure, how decisions are rendered, etc.

38. Statutory Powers Procedure Act
Tribunal has the power to determine its own procedures and practices
Disclosure
Adjournments – if appellant does not attend
Open hearings – unless public security or intimate private info.

39. S.P.P.A. (cont’d) Maintain order at hearings Witness examination
Right to representation
Evidence – any document or thing relevant to the subject matter
Mediation/Alternative dispute resolution

40. Committee Information
Municipalities may prepare an initial package of reference material for their Committee members
Package should include: the BCA, the By-law, rules of procedure

41. Composition of the Committee
Councillors as members?
Potential Issues: property in his/her ward, impartiality, etc.
Transparency
Conflict of interest

42. Process to Appeal What if appeal is received after time limit?
Committee should decide to hear or not (not a staff decision)
If appellant is not satisfied, he/she can appeal

43. Timelines
The BCA does not prescribe that a hearing must be held within a certain timeframe
Should be heard in a timely fashion
Suggested time; within 30 days
Why“? Complaints/safety issue
If appellant is not satisfied with length of time he may apply to the courts for a writ of man damus (compelling municipality to hold the hearing)

44. Prior to the Hearing How much information should the members have?
Should they inspect the property beforehand?
Report by staff, copy of Order
Photos may suffice and should be made available

45. Should Committee inspect?
A number of issues are created by direct inspections by Committee members
Safety – unaware of background
Independence – should not be together
Prejudice – owner may be present and speak to member thus creating a bias
Changing conditions – scene may be different that when 1st inspected by the PSO

46. Should Committee inspect?
OAPSO recommends NO
BCA states they have all the power and functions of the officer…….
This power is tied to its duty to hear the appeal, not investigate the complaint
A fundamental principle of law is the separation of the investigative and the judicial functions.

47. Hearing Process
Who represents the municipality?
Approach can vary

48. The Hearing Agenda Roll Call Disclosure of Pecuniary Interests
Consent Items – Minutes of previous meeting
Items for Consideration – Appeals to be heard
New Business
Adjournment

49. Conflict of Interest
A conflict of interest occurs when a Committee member has;
A personal interest in the property
An involvement by way of a parent or child’s financial interest
Stands to gain financially from any issue involving the property
When this happens, a Committee member must declare a conflict and step away from the Committee table and take no part in the hearing.
When the Committee moves on to other business, the member may return

50. Conflict of Interest Declaration of Conflict does not affect quorum
Municipal Conflict of Interest Act, R.S.O.1990, Chapter M.50 sec.7(1)
Where the number of members who are disabled from participating in a meeting is such that the remaining members are not of sufficient number to constitute a quorum, then, the remaining number of members shall be deemed to constitute a quorum, provided such number is not less than two.

51. Hearing Process First, a quorum must be established
Chair calls the meeting to Order
Chair introduces the members
Chair acknowledges municipal staff and the appellant

52. Hearing Process The Chair will briefly explain the process
(mostly for the benefit of the appellant)

53. Hearing Process Administering Oaths Is it necessary? Who does it?
Some secretary’s are Commissioner of Oaths

54. Hearing Process
Although the process is not a true court proceeding in the same manner as a prosecution, officers should prepare their information and present it as if it is a court prosecution
Quasi-judicial hearing

55. Evidence Should be available at the hearing; The Order Photos
Title search information
Reports
Officer notes

56. Hearing Process Municipality presents its’ information first
The appellant should be provided copies of anything not already contained in the agenda package

57. Hearing Process The Committee can ask questions of staff
The appellant is allowed to ask questions of staff (should only relate to information presented by staff)

58. Hearing Process
The appellant is then given an opportunity to present his/her argument
Committee members can then ask questions of the appellant

59. Hearing Process
After all information (evidence) is heard, the Chair may provide the municipality and appellant an opportunity for a final submission

60. Rendering a Decision Approaches can vary Sometimes at the time
Sometimes reserving judgment? (which may include excusing all parties and deliberating among themselves)

61. Rendering a Decision Staff recommendations
Is this appropriate and when?
Should they be offered or only on request?

62. Rendering a Decision
The Secretary must provide a written decision that is then sent by regular mail to the appellant
BCA does not specify how the decision is to be sent
Should include ability to appeal to Superior Court

63. Minutes and Records They serve as a record of the proceedings
May serve as a form of transcript in a further appeal proceeding
Section 253 of Municipal Act applies

64. Further Appeals Either side can appeal the Committee’s decision
Must be appealed to the Superior Court within 14 days of the decision being sent (a shorter time frame than first appeal opportunity)
Municipality must also receive notice

65. Appeal to Superior Court
Process is vague
Costly - $181 - $256 to file
Appeals are infrequent
No prescribed forms
Short time frame
Superior Court Judge has same powers as Committee
C.R.E.A.M.

66. Appeal to Superior Court
Thus many courts are unsure as to how to handle such appeals
In some cases the Court has referred the matter back to the municipality
The BCA does not appear to confer the power to refer the matter back

67. Appeal to Superior Court
No allowance for a further appeal
Judges decision is final and binding
Judicial review on subject, not Order

68. Appeal to Superior Court
Court Decisions:
Jimeil Holdings & the TTC
City of Toronto PS Order
Definition of owner in BCA – easement by TTC – Superior Court felt TTC did not meet definition of owner.
Also Order required submission of Engineers Report on structural adequacy of retaining wall.
Inadequate requirement – provide better remedy

69. Relevant Case Law (Thanks to Jane Moffat and Pros. Assoc of Ontario)
Anderson v. Hamilton (City)
Appeal of a PS Committee decision
Clarifies the role of the Superior Court when hearing committee appeals
It is not a “trial de novo” (new trial)
It is a review of the record

70. Relevant Case Law (Thanks to Jane Moffat and Pros. Assoc of Ontario)
Hamilton (City) v. Perry
City appeals decision of PS Committee to rescind an Order because City could not locate additional info (re: lot lines)
Appeal allowed, Order reinstated
Onus not on City to produce evidence, the onus is on the appellant to show why Order should be rescinded

71. Relevant Case Law (Thanks to Jane Moffat and Pros. Assoc of Ontario)
Swanson v. Whitchurch-Stouffville (Town)
Appeal of PS Committee decision not to grant extra time to comply due to severity of violations
Court allowed appeal – public safety issue addressed when tenants vacated
Need to consider any factors that may affect timelines (permits, materials, etc.)

72. Relevant Case Law R v. Consolidated Maybrun Mines Limited
Can an individual appeal an Order to Council as opposed to the Committee?
The Supreme Court of Canada held that where there is an established method of appeal, the subject cannot go outside that method to launch a separate collateral attack on the Order

73. Case Law - 2015 City of Waterloo v.379621 Ontario Ltd.
Superior Court quashed PS Order on lighting – too broad
Judicial Review at Court of Appeal
Not retrospective, must comply with new standard

74. Case Law Davis v. City of Guelph (2011)
Condition of rear yard swimming pool – violation of PS Bylaw
Appealed to Superior Court – Judge felt search warrant necessary – pool = dwelling
Overturned on Judicial Review request by City, OAPSO, OBOA

75. Unreported – May 2018 Storm v City of Brantford
Claim of abuse of process
Unrepresented litigant
Rules of Civil Procedure
Document filing requirements – Application Record
Costs awarded

76. OAPSO
Thanks so much
Questions
Concerns