Not unlike the two combatants, a panel of three appeal court justices failed Wednesday to make any significant headway in the eight-year standoff that is the Sutherland Saga.
The nearly three-hour hearing held at Toronto’s Osgoode Hall dealt with the city’s appeal of a decision handed down September 27 of last year by Justice Kelly Gorman, who determined a notice issued in March of last year warning of demolition of the four-storey structure for failure to comply with a previous work order was null and void.
Gorman ruled the notice was improperly delivered to McGee and the order lacked specificity.
Tom Halinski, the city’s lead legal counsel challenged those two considerations at Wednesday’s hearing, in addition to the validity of Gorman’s determination which “lacked analysis” and her decision not to amend or alter the work order but, instead, simply declare it null and void.
Lawyer Valerie M’Garry, representing building owner David McGee, argued the order was improperly delivered in that two other building officials – a property manager and an architectural designer – “who had clear authority to do things (on the property) that didn’t need McGee’s permission,” were not served copies of the order.
In response, Halinski noted the order was delivered “in valid fashion” to McGee’s home address via registered mail and an additional copy by regular post. The two other individuals were not included as they were felt to be agents of the building owner and took direction from him.
An error in Gorman’s decision, Halinski pointed out.
Prompting the appeal panel to question why a defect in delivery service would result in determining the order was then null and void, adding is there anything in the Building Code Act that says a defect in service invalidates the order?
As to lack of specificity in the work order, M’Garry advised there were no reasons listed as to why the building was deemed unsafe and as the building is 30,000 square feet in size, the recipient needs to know what work has to be done.
“We need a clear understanding of what has to be done to lift the demolition order,” stressed M’Garry, adding “the Building Code tells you what has to go in the order. The chief building inspector (Chris Peck) needs to read the legislation.”
She continued Peck should have provided more time to undertake remedial work and requesting a work plan from McGee “is going too far.”
Halinski pointed out the lack of guidance in the Building Code Act for determining how much detail Peck should have included in the work order. However, specific items needing attention and accompanying diagrams were included in an engineering report supplied to McGee.
Additionally, in the past couple of years several orders have been issued including an emergency work order after a partial roof collapse, an unsafe building order, a property standards order and a letter from John Sanders, the city’s legal counsel in St. Thomas.
In that time, the only work done has been interior shoring of the building and remedial work around the windows. No work has been undertaken on waterproofing the roof.
Neither party can agree on how much interior scaffolding has been completed.
M’Garry estimates 80 per cent before the contractor signed off on the work because “he was not getting direction from McGee.”
The city puts the figure closer to 30 per cent, countered Halinski.
After closing arguments, the panel advised they are reserving judgment at this time.
In the meantime, the Sutherland Saga will shift back to the Elgin County Courthouse on May 24, at which time McGee will challenge an unsafe building order issued by the city Oct. 28 that gave him until Dec. 15 of last year to provide a detailed work plan and schedule repairs to have commenced in January of this year.
That work order covers remedial brick work and securing the roof.