CITATION: W.J. Holdings Limited v. City of Toronto, 2011 ONSC 6315 COURT FILE NO.

: 11-CV-425322 DATE: 20111026

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: W.J. HOLDINGS LIMITED, CARRALLAN INVESTMENTS LIMITED and DAVIIiLL INVESTMENTS LIMITED Applicants - and CITY OF TORONTO Respondent Mark Siboni and Sharon Haniford, for the Respondent Robert G. Doumani and Sanj Sood, for the Applicants

HEARD: August 11, 2011

C.J. BROWN J.

REASONS FOR DECISION [1] The Applicants, W,J, Holdings Limited, Carr-Allan Investments Limited and Davhill Investments Limited (collectively referred to as the "Applicants") seek: (i) a declaration that the City of 'Toronto (the "City") is in contempt of the final order of. the Ontario Municipal Board ("OMB") which was filed pursuant to the Ontario Municipal Board Act, R.S.O. 1990, c, 0,28 with the Ontario Superior Court aS an order of this Court, (ii) an order requiring the Respondent to purge its contempt by forthwith issuing the demolition permits, and. (iii) imposition of anionetary penalty.

-2_ The Fuels

The Applicants own the properties listed at Schedule "A" to this decision (the 12] "Properties"), On March 6, 2006, the Applicants applied to the City's Building Division for demolition permits to allow them to demolish the buildings contained on the Properties. Approximately 20 months after the applications for the demolition permits were [3] submitted, the City had failed to make a decision as to whether to grant the Applicants the demolition permits. Accordingly, on November 16, 2007, the Applicants appealed to the Ontario [4] Municipal Board ("OMB") for an order directing the City to issue the demolition permits, [5] At a pre-hearing conference convened by the OMB on April 11, 2008, the City was directed by the OMB to make a decision as soon as possible with respect to the applications for the demolition permits, The City Council (the "Council") considered the applications at its meetings of [6] July 15 to 17, 2008, and decided as follows, That: (1) The Council refuse the applications to demolish the buildings on the subject site and that a copy of the Council's decision be forwarded to the OMB, (2) The Council authorize the City Solicitor and appropriate City staff to attend before the OMB in support of the refusal of these applications, and in support of the imposition of specified conditions being imposed in the event the Board allows appeals and orders the permits to issue, (3) The Council authorize and direct City officials to take necessary actions to give effect thereto. [7] Approximately three months later, by letter dated July 22, 2008, the City advised the Applicants that it had decided to refuse the application;: for the demolition permits. [8] Prior to the hearing of the Applicants' appeal to the OMB, the City raised the issue of the OMB's jurisdiction to hear the appeal. Accordingly, the 0MB dealt with the jurisdictional issue first and, on December 30, 2008, issued wrihtcn reasons deterininin.g thu jurisdictional issue in the Applicants' favour and dismissing the City's motion, [9] On January 20, 2009, the hearing of the Applicants' appeal from the City's decision to refuse to issue the demolition permits commenced. [10] On September 29, 2009, the OMB issued its written decision ordering the City to issue the demolition permits, The OMB order of. September 29, 2009 provided, in part, as follows: .,.the Board will allow a six-!month period for the City to impose conditions before issuing its final order, If there are

-3_ concerns about conditions imposed by the City, the Appellant can bring the matter back to the Board pursuant to the provisions of subsection (2)(iv) of An llot respecting the City of Toronto, 1991, If the City has not imposed any conditions within six months of the date of issuance of this Decision, the Board will proceed to issue its final order, The OMB decision was appealed by the-City to the Divisional Court on the issue [11] of jurisdiction only. On November 12, 2010, the Divisional Court found for the Respondent, W.J. Holdings, and upheld the OMB decision, The City did not pursue any other avenues of appeal. The Applicants requested that the OMB issue its final order on January 6, 2011, [12] The City did not file conditions with the OMB within the six months provided in the decision of September 29, 2009, nor at any time prior to the issuance of the OMB's final order, Instead, it wrote to the, OMB on February 15, 2011. (over one year after the OMIT decision and three months after the Divisional Court appeal decision) to request an extension of time in which to impose conditions. The City did not bring a motion before the OMB to extend the time in which to impose conditions on the permits. Nothing further was done and there was no follow-up on the part of the City. On February 24, 2011, the OMB issued its final order, which was filed with this [13] Court on March 15, 2011 as an order of the Court. The final order provides in part: The Board orders that the appeals are allowed in part. The City is directed to issue the demolition permits, which are the subject of the decision. It is of note that the City was represented at all proceedings throughout, including [14] the OMB hearing regarding jurisdiction, the OMB appeal from the City's refusal to issue the demolition permits, and the appeal to the Divisional Court, [15] Following issuance of the OMB's final order, the Applicant made three written requests for the demolition permits to be issued pursuant to the final order of the OMB. The City responded only to the second demand letter, stating: Before the above-described demolition permits can be issued, the conditions attached to this correspondence must be met, These conditions are those which City Council approved in 2008, save and except a few conditions which have been eliminated because they are no longer applicable. [16] The City has continued to refuse to issue the demolition permits until the conditions it has identified are met. None of these conditions were submitted to the OMB prior to issuance of the final order of the OMB and none are imposed pursuant to the OMB's order,

-4The City argues that the conditions it is now imposing prior to issuance of the [17] demolition permits are conditions it had identified in 2008. The City's position is that, in addition to being guided by the OMB's direction that the demolition permits in respect of the Properties issue, it must also comply with the decision made by the Council of the City of Toronto in July 2008 that any permit issued pursuant to an order of the OMB, must be subject to certain conditions. "1'l}e City argues that there is nothing hi the OMB's final order that impacts or [18] af(hets the July 2008 decision of the City Council to impose conditions, and that the final OMB order does not speak to City Council's July 2008 decision at all, The City argues that the demolition permits, with conditions attached, are in 119] accordance with and pursuant to both the final order of the OMB, which is filed as an order of this Court, and the 2008 decision of City Council and, therefore, that it is not in contempt of court. The Applicants argue that the final order of the OMB was clear, unequivocal [20] and that the City's conduct in refusing to comply with the order to issue the demolition permits, without conditions, constitutes civil contempt beyond a reasonable doubt. The issues and Analysis [21] In order to establish civil contempt, the three-part test set forth in Les Services aux Enf ruts et Adultes de Prescott-Russell c, N Ci, (2007), 271 D.L,R, (4th) 750 (Out, CA,) is applicable, as follows: 1, the order must be clear and unequivocal;

the party who disobeyed the order must have done so voluntarily and 2, deliberately; and 3. the evidence must establish contempt beyond a reasonable doubt,
Innovation 4,

[22] Good faith on the part of the alleged condemnor is irrelevant: Development v. R., [1993] 2 C,T,C. 88 (1{.) at para. 13.

[23] It has been hold that the terms of a court order as expressed are to be followed strictly and failure to do so interferes with the orderly administration of justice and impairs the authority or dignity of the court: Innovation dr.1]eveloprnent t?. R,, supra, at paral4. [24] Before I address the issue of contempt, I will consider whether, given the final order of the OMB, filed as an order of this Court, the City has any basis for refusing to issue the demolition permits without the conditions it has attempted to impose. in determining whether there is any overriding legislation, which would permit imposition of the subject conditions after the final order of the OMB, 1 will review the OMB order, the City of Toronto Act, 1991, s, 2, and the City of Toronto Act, 2006, S,0, 2006, c. 11, Sched, A. in conjunction with the Council's decision of July 2008,

-5While the City argues that any permit issued pursuant to an order of the OMB [251 must be subject to certain conditions, as imposed by Council, it is clear from the evidence before me that the City's position with respect to conditions to be imposed was before the 0MB at the hearing. In fact, all three Council decisions of July 15 to 17, 2008, sot forth at para. 6, supra., were beibre the OMB at the appeal. It is clear from the wording of the OMB decision of September 29, 2009 that the OMB did consider the City's ability to put forward conditions, and, in fact, gave the City six months in which to do so rather than the three months requested by the Applicsaiis, [26] The purpose of the six- nun]th window within which the City could impose conditions was clearly to give the City the opportunity to impose the conditions that it wished, and to give the Applicant, W.J. Holdings Limited, an opportunity to voice any concerns regarding the conditions imposed before the OMB. The City, by inadvertence or otherwise, failed to impose any conditions within [27] the six months stipulated by the OMB or at any time between the time that the interim and final orders of the OMB were issued.

The City of Toronto Act, 1991

[28] There is no basis in the City of Toronlo Act, 1991 (4)(c) Pr 24, S.0. 1991 to override a decision of the (FMB, nor an order of this Court, [29] Section 2(1) of the Act grants the City a discretionary power to impose conditions on permits issued under section 33 of the Planning Act, R.S.O. 1990, c, .P,13 and provides for an appeal process to the OMB. Section 2(6) provides that the decision of the OMB, after appeal, is final. It is clear that the City's power to impose conditions is, firstly, discretionary and not mandatory and, secondly, that the power to impose conditions cannot supersede an OMB decision dealing with conditions, which the Act recognizes is final. Further, I note that section 34 of the Ontario Municipal Board Act, R.S.O. 1990, c, 0.28 grants the OMB powers of a court and section 36 of that ,4ct gives the OMB exclusive jurisdiction over all matters conferred to it. [30] Finally, I note that the OMB's decision in this case explicitly contemplated the possibility of conditions being imposed by the City, and created a fair: process by which they could be submitted and any concerns expressed, prior to the OMB's final order being iSSLled,
The City of Toronto Act, 2006

[31 ] In the OMB decision, the Board recognized that the City had explicitly acknowledged that it was not claiming any power to exert conditions under the City of Toronto Act, 2006, S.O. 2006, c. 11, Schcd, A, as the Act is not retroactive, In this motion, the City has confirmed that position. Thus, I will not deal further with the City of Toronto Act, 2006.

-6It is clear from the foregoing that there is no legislative provision which would [32] provide the City with a basis to refuse to issue the demolition permits pursuant to the final order of the OMB or to impose additional conditions in clear contradiction to the said order, which I note was also filed with and is an order of this Court, Therefore, as T am satisfied that there is no legislative basis upon which the City can refuse to issue the demolition permits without the conditions it now seeks to impose, nor any legislative ,justification for its conduct in refusing to comply with the order.

Is the City in Contempt of Cowart?

1 move to the issue of whether the City is in contempt of court and whether the [33] tripartite test for establishing contempt has been established.

Is the Order Clear and Unaequivocial?

The final order of the OMB directs the City to issue the demolition permits. In [34] the context of the final order, the Board has specifically noted that the City did not identify any conditions within the six-month time period set out in the merits decision and, the sixmonth time period having lapsed, the Board ordered that, "The appeals are allowed in part. The Board directs the City to issue the demolition permits, which are the, subject of the decision." The Board, both in its merits decision and its final order, expressly addressed the issue of the six-month time period within which the City could impose conditions, and noted that the City had not done so. The final order of the 0MI8, filed as an order of' this Court, is clear and [35] unequivocal in directing the City to issue the demolition permits, without conditions.

Was the Disobedience of the Order Voluntary and Deliberate?

[361 It is apparent from the history of this matter that the City has delayed its decision to issue demolition permits, and taken numerous routes of appeal. More than live years have passed since the initial request for issuance of' the demolition permits. From the time that the final order of the 0MB was issued, over seven months have passed without issuance of the demolition permits. There is no reason given, outer than the fact that the City maintains that it may impose additional conditions following issuance and filing of the final Court order and following its decision or its inadvertence in not imposing the conditions during the six-month period provided by the interim OMB order, to issue the demolition permits. T find the disobedience, via, the City's refusal to issue the demolition permits without conditions attached, to be voluntary and deliberate, Does the Evidence Estahlish Contempt beyond a Reasonable Doubt? [371 1 am satisfied, based on all of the evidence before me and the submissions of counsel, that the City has conth-ued to refuse to issue the demolition permits pursuant to the OMB order and is in contempt beyond a reasonable doubt.

-71 therefore declare the City to be in contempt of the OMB order c i' February 24, [38] 2011, filed as an order of this Court, and order the City to issue the demolition permits for the properties in question within 30 days of the release of this decision, The Applicants seek an order that the City pay a fine in the amount of $150.00 [39] per day for each day that the City fails to issue demolition permits and a monetary penalty of $750,000 to be paid to a charity designated by the Applicants. Tn determining whether a penalty should issue, I have considered the cases of [40] Axelrod, et al. v. City of Toronto (1984), 48 O,R, (2d) 586 (H,C.J.); Innovation & Development, .sztipra, at paral7; and the additional case taw cited by both the Applicants and the Respondent.

Order
[41] 1 order as follows: (1) the City is in contempt of the final order of the OMB dated February 24, 2011; (2) the City may purge this contempt by issuing the demolition permits, Without conditions, within 30 days of the release of this decision; and (3) in the event that the City does not purge its contempt and issue the demolition permits within the time stipulated by this Court, it will be subject to a penalty of $75,000 and an additional $ 150.00 for each day of violation thereafter.

Costs
[42] 1 would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline, The submissions may be forwarded to my attention, through Judges' Administration at 361 University Avenue, within thirty days of the release of this Decision

Released:

October 26, 2011

SCHEDULE "A"

The thirteen buildings for which the applications for demolition permits Were made: 1. 2, 3. 4, 5. 6. 7, 8, 9, 10. 11, 12, 13. 1844 Bloor Street West, Toronto, Ontario; 1846 Bloor Street West, Toronto, Ontario; 1848 Bloor Street West, Toronto, Ontario; 1850 ]floor Street West, Toronto, Ontario; 1852 Bloor Street West, Toronto, Ontario, 1854 Bloor Street West, Toronto, Ontario; 6 Oalcznount Road, Toronto, Ontario; 8 Qakmount Road, Toronto, Ontario; 10 Oakmount Road, Toronto, Ontario; 12 Oakmount Road, Toronto, Ontario; 14 Oulunowit Road, Toronto, Ontario; 35 Pacific Avenue, Toronto, Ontario; and 37 Pacific Avenue, Toronto, Ontario,

CITATION: W,J. Holdings Limited v. City of Toronto, 2011 ONSC 6315 COURT FILE NO.; i 1-CV-425322 DATE: 20111026 ONTARIO SUPERIOR COURT OF .JUSTICE BETWEEN: W.J. HOLDINGS LIMITED, CARR-ALLAN INVESTMENTS LIMITED and DAV14ILL INVESTMENTS LIMITED Applicants -and CITY OF TORONTO Respondent

REASONS FOR DECISION

C,J. Brown J.

Released:

October 26, 2011

TOTAL, P.010