Deck building litigation was needless waste of time

Bob Aaron in Legal

Judge rules that deck should have been inspected at the end of construction, not earlier

One of the reasons litigation is so expensive and time-consuming in Ontario is that too much court time is spent on cases that should never have gone there in the first place.

A prime example of this is the court decision in the case of Upchurch vs. the City of Oshawa, released by the Ontario Divisional Court a few weeks ago.

Donald and Carla Upchurch wanted to build a deck outside their house in Oshawa. When Donald attended at the city offices to obtain a building permit, he was told that no permit would be required if, upon completion, the deck would not be higher than two feet above the adjacent ground, or grade level.

This advice was based on the requirements of the Policies and Procedures Manual for the City of Oshawa. According to the written rules, a permit is not required for a residential deck if it is not more than 600 millimetres (about 24 inches) in height above the adjacent grade, with no roof above.

In September 2006, during construction of the deck, "a third party" (presumably a neighbour) complained to the city, and a building inspector came out to look at the work. The inspector himself was not certain whether a permit was required and he consulted his supervisor to see whether he could use his discretion to waive a building permit.

At the time of the inspection, construction of the deck had not been completed. Planters had been installed at the front of the deck, so that the deck boards there were clearly less than two feet above the new ground level

Unfortunately, during the inspector's visit, planters had not been installed at the sides of the deck. The inspector measured the height at the sides of the deck and discovered that the board level there was more than two feet above grade.

Based on advice from his supervisor, the building inspector decided that a permit was required. He then issued a No Permit Order, requiring construction work to cease.

The owners filed an appeal of the No Permit order and the matter came up for a court hearing in May 2007. Justice Myrna Lack dismissed the Upchurch appeal and ruled the owners should have obtained a building permit.

Not satisfied with that ruling, the Upchurches appealed to a three-judge panel of the Divisional Court in September 2008.

The court released its two-page ruling in October, rescinding Lack's No Permit order and revoking her award of costs in favour of the City of Oshawa. As well, the court awarded costs of $3,500 against the city.

On behalf of the three-judge Divisional Court panel, Associate Chief Justice Douglas Cunningham wrote: "The deck has now been completed and the planters have been installed at the sides of the deck, such that the distance between the grade (the top of the side planters) and the deck floor is considerably less than two feet.

"In our view, the appropriate time for inspection would have been the completion of the project, not at some point midway through construction."

The owners, he said, "did everything properly on the understanding that with the planters installed, the distance between grade and the deck floor would be considerably less than two feet. They acted upon the advice given by a building official when they sought a building permit."

This case is a classic example of one that should never have been heard in one court, not to mention two. I believe the city should have admitted its mistake at the outset and given its blessing to the deck. When homeowners can't rely on municipal advice and the parties are forced to spend tens of thousands of dollars on legal fees in needless litigation, there is a huge temptation to undertake renovations without obtaining permits.

Bob Aaron is a sole practitioner at the law firm of Aaron & Aaron in Toronto and a board member of the Tarion Warranty Corp.  Bob specializes in the areas of real estate, corporate and commercial law, estates and wills and landlord/tenant law. His Title Page column appears Saturdays in The Toronto Star and weekly on Move Smartly.  E-mail

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