There haven’t been many in the past decade, however on Monday the city received word of a small victory in the Sutherland saga.
City manager Wendell Graves informed council a panel of three appeal court justices ruled in the city’s favour, advising a lower court erred in its determination last September that a notice issued in March of 2016 warning of demolition of the four-storey structure for failure to comply with a previous work order was null and void.
On Sept. 27, Justice Kelly Gorman ruled the notice from the city to Sutherland Press building owner David McGee was improperly delivered and lacked specificity.
The city’s appeal was heard April 12 at Osgoode Hall in Toronto.
During the almost three-hour hearing, Tom Halinski, the city’s lead legal counsel challenged the validity of Gorman’s determination, arguing it “lacked analysis,” and her decision not to amend or alter the city’s 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.
The appeal panel agreed, questioning 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 the lack of specific details in the work order issued by the city’s chief building inspector Chris Peck, Halinski told the appeal panel about 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.
The legal wrangling isn’t over yet. Both sides will appear May 24 at the Elgin County Courthouse, 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.