871 Queen Street West
The Corporate Services Committee recommends that:
(1)City of Toronto Council, in acknowledgement of the former City of Toronto Council decision respecting this
matter, absorb 50 percent of the awarded damages, plus pre-judgement interest and cost, up to a net maximum to
the City of Toronto of $30,000.00; and
(2)the appropriate City officials be authorized and directed to take the necessary actions to give effect thereto.
The Corporate Services Committee submits the following report (June 5, 1998) from the City Solicitor:
Purpose:
To provide updated information.
Funding Sources, Financial Implications and Impact Statement:
Not applicable
Recommendation:
It is recommended that this report be received for information.
Council Reference/Background/History:
At its meeting on June 2 and 3, 1997, City Council adopted Councillor Mario Silva's motion that the City participate in a
Court action between the owners of 871 and 869 Queen Street West, and adopted Clause 14 of Executive Committee
Report No. 16, as amended.
Comments and/or Discussion and/or Justification:
On August 16, 1985, a permit was issued to the owner of 871 Queen Street West to demolish an attached building. The
demolition was completed on December 11, 1986.
In July, 1991, the owner of 869 Queen Street West commenced an action against the owner of 871 Queen Street West
alleging that as a result of the demolition, he had experienced peeling paint, loose plaster, water damaged plaster and
cracking of the walls in the basement, first and second floors. He also alleged that his expenses for heating the building had
dramatically increased. The trial was held during 1996 and a Decision released December 24, 1996. The trial judge held
that the owner of 871 Queen Street West was liable to the owner of 869 Queen Street West and awarded damages of
$15,701.50, plus pre-judgment interest and costs. The trial judge held that as a result of the demolition, the common
interior wall had been changed into an exterior wall of the building at 869 Queen Street West. In failing to insulate and
waterproof the wall, the owner of 871 Queen Street West created a nuisance for which he was liable in law.
The owner of 871 Queen Street West filed an appeal from the Trial Judgement to the Court of Appeal.
Pursuant to Clause 14 of Executive Committee Report No. 16, as amended by City Council at its meeting on June 2 and 3,
1997, an Application was made before the Associate Chief Justice of Ontario on December 15, 1997, for an Order granting
leave to the City to intervene in the Appeal between the two owners. By an endorsement issued on December 16, 1997, the
Associate Chief Justice granted leave to the City to intervene as a friend of the Court for the purpose of rendering
assistance by way of argument, subject to certain conditions.
By order issued April 28, 1998, the Court of Appeal dismissed the appeal brought by the owner of 871 Queen Street West
on the basis that it had not been perfected in time. The City's involvement has therefore come to an end.
The owner of 871 Queen Street West has now written to me suggesting that the City must take responsibility for some part
of the award he must now pay and his legal costs on the basis that the "work [was] done under the direction of a responsible
City representative". If the owner of 871 Queen Street West wanted to bring an action against the City for contribution, he
was required to do so by December 25, 1997. He has not done so and therefore the matter is now statute barred.
Furthermore, the Trial Judge was not critical of the conduct of the City inspectors during the demolition. Based on a
review of part of the trial transcript provided by the solicitor for 871 Queen Street West, of the evidence of the building
inspector at the time of the demolition, there is nothing to suggest that he made any statements upon which the owner of
871 Queen Street West could rely with respect to his obligations vis-a-vis the owner of the adjoining building.
Conclusions:
The owner of 871 Queen Street West cannot bring an action against the City as any claim is now statute barred.
Furthermore, there does not appear to be any basis upon which the City could have been found liable to him, if an action
had been brought in time. Therefore, there is no legal basis upon which the City should contribute towards the award that
the owner of 871 Queen Street West is required to pay to the owner of 869 Queen Street West.
Contact Name:
Andrew A. Weretelnyk, (416) 392-7248, (416) 392-1199
(Clause No. 14 of Report No. 16 of the Executive Committee
of the former City of Toronto Council entitled, "Appeal in the Case of
Pantev vs. Dominelli - 871 Queen Street West (Ward 4)".)
The Executive Committee submits the report (May 21, 1997) from the City Solicitor to City Council at the request of
Councillor Mario Silva.
The Executive Committee advises that it received this matter.
The Executive Committee submits the report (May 21, 1997) from the City Solicitor:
Subject: Request by the owner of 871 Queen Street West that the City "participate" in the Appeal in the Case of Pantev vs.
Dominelli
Origin: City Solicitor (p:\1997\ug\cps\leg\pvic\EX970054.leg)-JO
Recommendation: That this report be received for information.
Comments: On April 8, 1997, the Executive Committee considered a communication from Councillor Martin Silva
[March 20, 1997] concerning an Appeal in the case of Pantev vs. Dominelli. The Executive Committee also had before it a
Judgment of the Ontario Court of Justice (General Division) [December 24, 1996] and a communication from Fred
Dominelli [April 7, 1997]. Mr. Dominelli also addressed the Executive Committee. The Executive Committee deferred the
matter to its next meeting on May 5, 1997 and requested the City Solicitor, in consultation with other appropriate officials,
to report to that meeting. On May 5, 1997, the matter was further deferred to the meeting on May 27, 1997.
Mr. Dominelli is the owner of premises known as 871 Queen Street West. Mr. Pantev is the owner of the adjoining
premises at 869 Queen Street West. On August 16, 1985, a permit was issued to Mr. Dominelli to demolish the attached
building situate on 871 Queen Street West. The demolition was completed on or about December 11, 1986.
In July, 1991, Mr. Pantev commenced an action against Mr. Dominelli alleging that as a result of the demolition, he had
experienced peeling paint, loose plaster, water damaged plaster and cracking of the walls in the basement, first and second
floors. He also alleged that his expenses for heating the building had dramatically increased. The Trial Judge held Mr.
Dominelli liable to his neighbour on the basis of nuisance. Prior to the demolition, Pantev and Dominelli were the owners
of a common interior wall. The Court held that the common ownership implied a common intention that neither would do
anything to detract from the wall's suitability as an interior common wall. If either demolished his building, he nevertheless
had to do whatever was necessary to maintain the wall so that it would be as useful to the other as it had been prior to the
demolition. By demolishing his building, Mr. Dominelli turned what had been a common interior wall into an exterior wall
for Mr. Pantev's building. Mr. Dominelli was obliged not only to insure that the wall was waterproof against rain and
ground water but also to insulate it. The Trial Judge held that Mr. Dominelli knew or ought to have known that unless he
did so, Mr. Pantev would suffer the damages which he suffered. In failing to insulate and waterproof the wall, Mr.
Dominelli created a nuisance for which nuisance he was liable in law. I understand that Mr. Dominelli has filed an appeal
from this Decision to the Court of Appeal. Mr. Dominelli, through Councillor Martin Silva, asked me to consider whether
the City ought to "participate" in the Appeal filed by Mr. Dominelli.
The City does not have a right to "participate" in Mr. Dominelli's Appeal. It would have to apply for Leave to Intervene
either as an added party or as a friend of the Court. Such leave may be granted only by a panel of the Court of Appeal, the
Chief Justice of Ontario or the Associate Chief Justice of Ontario. Leave to Intervene is granted so as to permit a person to
protect an interest that might be adversely affected by a Judgment in the proceedings. There is nothing in the Reasons of
the Trial Judge that adversely affects the City's interest.
The Executive Committee also submits the communication (March 20, 1997) from Councillor Martin Silva:
Recommendation: That the Executive Committee recommend to Council that the City enter into an appeal in the case of
Pantev -vs- Dominelli; and,
That this decision be made after the hearing of deputations.
Comments: The above legal case was recently in court. Mr. Fred Dominelli claimed that he had done the demolition of a
building and the fixing of a common wall according to the directions of the city inspectors.
The Judge ruled against Mr. Dominelli. He believes that the case undermined the authority of the city inspectors to
determine what the minimum code requirements should be for these cases. I asked the Legal Department to comment on
the case. As the response was negative, my constituent asked to be heard by the Executive Committee.
I am hereby, requesting that the Executive Committee hold a deputation hearing on this matter.
The Executive Committee also had before it the following communications, which are included in the additional material
and is on file with the City Clerk:
-(April 7, 1997) and (May 26, 1997) from Fred Dominelli
-(April 21, 1997) from Metro Councillor Pantalone
(Council Action - June 2 and 3, 1997)
While considering this Clause, Council had before it the following report from the Director of Inspections and Chief
Building Official (May 29, 1997):
Subject: Civil Action Appeal Process - 869 & 871 Queen Street East
Origin: Director of Inspections and Chief Building Official (P:\1997\ug\uds\bld\cn970029.bld-bs)
Recommendation: I recommend that City Council not participate in this civil matter with the understanding this decision
will not undermine the authority or integrity of the Ontario Building Code building permit and inspection processes.
Comments: The City of Toronto Executive Committee, at its meeting of May 27th, 1997, considered whether it is
appropriate or reasonable for the City of Toronto to take up a role in the litigation between the owners of these two
premises where the demolition of a building (871) was undertaken in such a way that allegedly caused damage to the
neighbouring property (869).
The owner of 871 Queen Street West alleges that he followed the instruction of the building inspector who inspected the
demolition and construction to finish the newly exposed wall of 869 Queen Street West. It has also been suggested that the
authority of the Building Inspector would be undermined if the City did not become involved in the appeal of this matter.
Before deciding on this matter, I provide the following information for your consideration:
-One inspection (Sept. 3, 1985) was conducted during the demolition and no notes were taken regarding any discussion
which may have occurred.
-One further inspection (Sept. 28, 1985) was conducted during construction of the wall and capping of the new exterior
wall of 869 Queen Street West. A note was made on the permit card advising that the inspector had been told of water
seepage into the basement of 869, and indicating that he passed this advice on to the property owner. No further notes were
made concerning this matter.
-The inspector who conducted the inspections retired and did not testify in the civil proceeding; the inspector (E. Yunger)
who testified read from the notes of the original inspector but had not attended the site.
-The matters which are at issue in this court proceeding may be the result of faulty design, faulty construction, or other
factors, all of which are unknown since we were only on site for a brief time during the demolition, and we have no notes
detailing the demolition or construction processes which occurred almost 7 years ago.
I have reviewed this matter with John Morand, Commissioner of Urban Development Services, who supports this
recommendation.
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Councillor Mario Silva moved that the Clause be amended by adding:
(1)That the action taken by the Executive Committee to receive this matter not be confirmed.
(2)That City Council participate in the civil matter between the owners of 869 and 871 Queen Street East.
which Council adopted:
That the action taken by the Executive Committee to receive this matter be confirmed.
Council adopted the Clause, as amended.
Mr. Fred Dominelli, appeared before the Corporate Services Committee in connection with the foregoing matter.
Councillor Joe Pantalone, Trinity-Niagara, appeared before the Corporate Services Committee in connection with the
foregoing matter.
(A copy of the communications (April 7, 1997) from Mr. Dominelli; (April 21, 1997) from Councillor Joe Pantalone; and
(May 21, 1998) from Mr. Dominelli , attached to the foregoing report, were forwarded to All Members of Council with the
June 22, 1998, agenda of the Corporate Services Committee and a copy thereof is also on file in the office of the City
Clerk.)
