Amend code to protect innocent neighbours

Bob Aaron in Legal

Last week's column told the story of the illegal chimney on a north Toronto bungalow owned by Ruta Benjamin and her husband.

When the house next door to the Benjamins' was torn down in 2007 and a monster home erected in its place, the couple discovered that their chimney was now lower than the roofline of the new house next door and too close to it.

Suddenly their chimney became illegal.

The column brought some interesting email responses.

Bernadette Celis, communications advisor with the Technical Standards and Safety Authority (TSSA), explained why the Benjamin chimney became illegal: as a result of the construction of the new house, the chimney on their bungalow was in violation of the Natural Gas and Propane Installation Code and Ontario regulation 212/0 – Gaseous Fuels.

The code requires a fuel distributor to report to the TSSA when it finds a contravention or hazard. In this case, since the Benjamin chimney was less than two feet higher than the roof next door and less than 10 feet closer to the new house, it became a code contravention.

The code required the Benjamins to make their chimney comply at their own expense.

Was the city of Toronto wrong in issuing a permit, which resulted in a code violation against the house next door? Ray Hewlett, a retired chief building official, emailed to say that the Ontario Building Code applies to this situation.

He directed my attention to Section 8(2) of the Ontario Building Code Act, which states that if an application is properly submitted, a chief building official shall issue a permit to construct a building unless the proposed building...will contravene this Act, the building code or any other applicable law.

To my dismay, I discovered that the city of Toronto acted according to legal precedent when it issued a permit for the new house. That was the permit that caused the Benjamin chimney to be in breach of the fuel installation code.

Prior to his retirement some years ago, Pille Hansen was the chief building official of the former city of York. He emailed me to say that it was his policy to inspect properties for problems relating to chimney clearance in connection with building permit applications.

He referred me to a court case* in 1995 about a property on Snider Ave. owned by Peter Alaimo. As chief building official in the city of York, Hansen had refused Alaimo a building permit due to the proximity of the chimney on an adjacent property.

Alaimo appealed to the Building Code Commission**, which ruled that the building code requirement that a new permit cannot create a contravention of the act only applies to a contravention on the site under consideration, and not a property next door.

The city of York appealed the Commission decision to the Ontario Court of Justice, and lost*. Justice Dennis Lane ruled that Hansen, as chief building official, could not refuse to issue a permit simply because it would create a hazard or violation with respect to the functioning of the neighbour's chimney.

The judge wrote that the provisions of the Building Code do not regulate adjacent buildings and ordered York to issue Alaimo a building permit.

If Justice Lane's decision is correct in law (and I have my doubts), then there is an urgent need for Queen's Park to amend the Building Code Act to prevent innocent neighbours like the Benjamins from being placed in an unsafe and dangerous condition a result of construction on neighbouring properties.

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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