RESIDENTS OUT OF THEIR HOME FOR OVER THREE YEARS
Ontario’s Divisional Court, a branch of the Superior Court of Justice, has found that the Halton Region Conservation Authority’s treatment of two Aldershot homeowners was “unreasonable and procedurally unfair”. It has directed the Authority to pay the residents $100,000 in damages because of its “failure to follow the process mandated by its own regulations”.
The Conservation Authority (HRCA) did not offer the residents the required show-cause hearing before taking away their permit to build.
“The applicants obtained a permit from the Authority to renovate their home. They embarked on the work and the authority cancelled their permit mid-work without notice and without an opportunity to be heard”, according to the Court ruling.
Sources close to the situation suggest the HRCA has already spent over half a million taxpayer dollars for legal services to defend its position, and it’s not over yet.
None of the parties involved in the dispute will say much, due to ongoing litigation, but the HRCA has confirmed its intention to again cancel the permit and scheduled a Board hearing as directed by the Court. The date of September 22 has been discussed. The HRCA is also believed to be appealing the $100,000 award to the homeowners.
It’s a “Sham” !
The drama began in 2018 when Ivan Rudyk and Shelley Young, through their agents, applied to the HRCA to put an addition on their home at 835 Spring Gardens Road. HRCA approval was needed because the home is located in an area of known slope instability.
HRCA did grant the permit for doubling of the existing car garage, construction of living space above the garage, a new rear balcony and a covered front porch. It was granted with the condition that any changes needed to be discussed. HRCA defined the work as a “minor” addition to an existing dwelling.
“Staff has no concerns with the variance proposed as the overall development complies with our Regulation…… Based on the above, staff has no objection to the approval of this Minor Variance Application. Should there be any changes made to the site plan, please keep CH apprised”, reported the HRCA at a December 2018 Committee of Adjustment Hearing.
After reviewing all the drawings, the City issued a building permit. The expectation however was that the work would remain on the existing footprint of the house, with the exception of the garage addition. The existing foundation would be maintained and least two of the original walls would remain. Theoretically, this made the work a renovation, not a new home.
Work began in January, 2019. Things did not go well. The two original walls that were to be maintained collapsed. There was a lot of back and forth with Stop-Work orders from both the City and the HRCA. Eventually, however, after consultations with a structural engineer, the two walls were replaced in their original positions. The City approved the work and construction resumed.
HRCA began to see the work differently, however, and warned the owners that the apparent complete demolition of the home and rebuilding of a dwelling was not part of the original permit.
HRCA referred to the ongoing work as a “sham” and accused the homeowners of building an entirely new home without permission. It said the original structure had been totally demolished and the basement height altered. Ultimately, HRCA declared their permit “void”. It demanded a geotechnical assessment of the property and a new permit application for a “new dwelling”.
“The 2018 permit was for a minor addition……..however, the existing dwelling was completely demolished and a new dwelling is now under construction…..The work is beyond the scope of what was approved under the permit…..The scale and scope of works currently underway would have required additional supporting information……In our view, given that the permit is void, a hearing is not warranted as the circumstances that were set out in the application for the permit have fundamentally changed”.
HRCA also brought charges against the owners under the Provincial Offences Act.
The voiding of the permit, without a hearing, became the immediate issue. Rudyk and Young went to Court.
The Court Ruling
The case eventually reached the Divisional Court in December 2021. The homeowners claimed that most of the work is on the existing footprint and is not a “development” under terms of the Conservation Authorities Act. They asked the Court to quash HRCA’s decision to void the permit and requested an order for no further interference from HRCA.
They won some, but not all of what they wanted.
“I am satisfied that the applicants are entitled to an order quashing the Authority’s decision. The Conservation Authorities Act, which gives the Authority the power to cancel a permit …….. does not give HRCA the power to declare a permit void without a hearing…The permit remains valid”.
The Court ruling was critical of the Authority.
“Based on the record before the Court, it is far from obvious that the original permit application was a sham. There are several references to a two-storey addition and the precise scope of the work is evident from drawings provided to the Authority a few months after it issued the permit. There is no merit to the Authority’s argument that the application should be dismissed on the basis that the original permit application was a sham”, wrote the Court as it awarded the couple $100,000 in damages.
But, the ruling went on to say that the HRCA still is still entitled to give notice to the applicants that it intends to cancel the permit, as long as it holds a “show cause” hearing to discuss the merits of the case.
HRCA is expected to appeal the $100,000 damage award given to the homeowners.
The residents have now been out of their home for more than three years and are thought to have spent over $800,000, so far on the debacle, without any conclusion. They have “suffered tremendously”, claims one source.
The unfinished home remains exposed to the elements and a is blight on the street. Work has not resumed.
“Everyone involved is suing everyone else”, according to a source close to the story.
“I would really like to see a resolution on the matter to see this home completed and not left a construction hazard that it currently remains. It does not look good on all parties to have a home sit for this long in a mid-constructed condition”, said local City Councillor Kelvin Galbraith.
The drama continues.