QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 313 Date: 2009 07 24 Docket: Q.B.C. No. 71 of 2009 Judicial Centre: Prince Albert BETWEEN: LARRY MARKWART and CITY OF PRINCE ALBERT Counsel: L. Markwart representing himself N. Fisher for the respondent DECISION ROTHERY J. July 24, 2009 [1] This appeal is brought by the registered owner of the property, Larry Markwart (“Markwart”), pursuant to s. 329(4) of The Cities Act, S.S. 2002, c.C-11.1, as a result of the preliminary decision of the quasi-judicial board rendered July 9, 2007, and the final decision of the quasi-judicial board rendered December 15, 2008, confirming the demolition order made by the City of Prince Albert (the “City”), with certain conditions. Although the demolition order is dated November 18, 2004, legal proceedings have extended the life of the building called the Minto Apartments, situated at 51 9th Street East, Prince Albert. Following the decision of Klebuc J. (as he then was) on March 23, 2005 and cited at 2005 SKQB 143 (CanLII), Markwart appealed to the Saskatchewan Court of Appeal. In decision cited at 2006 SKCA 122 (CanLII), the Saskatchewan Court of Appeal remitted the matter back to the City for new appeal under s. 329(1) of The Cities Act. The Saskatchewan Court of Appeal found that the City was unreasonable when it refused to grant Markwart an adjournment to prepare his appeal which had been permitted under s. 329(1) of the Cities Act. The Saskatchewan Court of Appeal also found that Markwart did not receive complete disclosure of the case he had to meet. At para. 34 of that decision, Lane J.A. stated: Further, although there may be little doubt the appellants were aware of the issues and the many complaints given the prior extensive meetings, it does not follow they knew the case they had to meet as the earlier complaints had not led to demolition order. They ought to have received copy of the report on which the Council decision was based. They did not know what the inspector was going to report to Council. They did not know how the case was going to be presented to Council. The report may or may not have fairly represented the discussions in the prior meetings. The Chambers judge failed to consider the importance of the failure of the City to supply copy of the report to the applicants prior to the appeal to Council. The appellants could not properly respond without knowing how the case was to be presented to Council. [2] In accordance with s. 329(1)(a) of The Cities Act, the quasi-judicial board (the “board”) was established, consisting of five members of city council who were not on city council as of November 29, 2004, being the date of the original appeal of the November 18, 2004 demolition order. The board heard submissions on behalf of Markwart’s legal counsel and on behalf of the City with respect to preliminary matters. At p. of its preliminary decision, the board stated the following on the question of bias: In regards to the bias question, Mr. Loewen [Markwart’s legal counsel] acknowledges that these five (5) persons who were also expected to sit on the Appeal proper, at this juncture, did not raise any concerns of bias for Mr. Markwart, either actual or perceived. [3] The board ruled that both Markwart and the City were entitled, in advance, to evidence that both parties considered relevant at the appeal to the board. The board stated at p. of its preliminary decision: The Board understands that it must re-hear Mr. Markwart’s appeal for relief against Mr. Halayka’s Order of November 18, 2004 afresh. In other words the Board is being asked to review the fairness and reasonableness of Mr. Halayka’s Order in relation to the relative evidence that was presented or may have been relied upon or presented at the time. Having regard to comments from the Court of Appeal that Mr. Markwart should have been given the opportunity to put his best case forward, there would appear to be clear inference that all evidence and information which may have been or could have been presented to City Council originally would need to be considered as relevant to this Hearing. It is therefore the opinion of the Board that it would be unfair to restrict either Mr. Markwart or the City from presenting evidence on this question in the context of the timeframe leading up to the date of the original Appeal. This in our view does not necessarily end the questions which this Board may be asked to consider. After answering the primary question, if the Board were to be persuaded that the Nuisance Abatement Order was not justified, there are consequential implications which the Board may need to address. By the same token if the Board determines that the Order was justified at the time, the inherent question remains whether the Order continues to be justified. In either case the Board is of the view that it would be appropriate to afford both parties the opportunity to advance whatever evidence they consider relevant to these secondary questions including any relevant evidence which may be post original appeal. Therefore the Board does not intend to restrict either party in putting forward evidence which they consider relevant on these questions. [4] Further, the board ruled that if legal counsel sought disclosure of police files, court application was required, as the board had no authority to compel production of documents. The board stated at p. of its preliminary decision: Mr. Loewen stated to the Board that if such Police information was to be considered by the Board, he would then be asking that the Board order the Police Service to disclose any confidential files relating to the criminal investigation of the Minto Apartments. The Board appreciates the interest of Mr. Markwart to scrutinize those calls which prompted the Police attendances, however it is unable to compel the production of the Police files in question. The reason for this is that The Cities Act under which the Board is empowered, does not provide specific powers of compelling documentation in the same way as the Police Commission has powers to compel production of documents as spelled out in The Police Act. Without the power to compel, the Board does not believe it is in position to decide on the disclosure of the police files. It would therefore be incumbent on the Markwarts to pursue such other avenues including application to the Court for subpoena or such other Order directing production of documents. Presumably the Court would entertain such an application in order to accommodate the needs of procedural fairness and due process based on the merits, recognizing that if the police file information is ordered to be produced, this Board will ultimately have the responsibility of deciding what weight is to be given to such evidence, if any. [5] The appeal to the board was heard on November 17 and 18, 2008. At that hearing, Markwart represented himself. The board made certain findings about the demolition order of November 18, 2004 against the Minto Apartments, and confirmed the demolition order. It also suspended implementation of the demolition order to allow Markwart to remedy the problems. The reasons of the board are as follows: The Board finds that the Building/Fire Inspector at the time of issuing the Order properly determined there to be nuisance relating to the use and activities surrounding the building known as the Minto Apartments, which adversely affected the amenities of the neighbourhood including the safety, health and welfare of the people both resident and non-resident. The Board finds that the history of non-compliance, the intolerable sub-standard living conditions endured by the tenants, and the absence of pro-active approach by Larry Markwart to responsibly manage the safety and security of tenants and visitors, have all lent themselves to the nuisance complained of. The Board finds that the issuance of the Order to Vacate and Demolish the building by the Building/Fire Inspector has had the effect of abating the nuisance complained of. The Board has determined the Order to Vacate and to Demolish at the time of issuance was appropriate and continues to be appropriate. Therefore, the Order to Vacate and Demolish dated November 18th, 2004 is hereby confirmed and shall remain in place subject to the following provisions, specifically, the Board has decided in the present circumstances to suspend the enforcement of the Order for period of time to allow the following: a) Larry Markwart will be given the opportunity for period of six (6) months from the date of this decision, to bring forward written proposal to the Board committing to the operation of the building under qualified professional property management firm with proven record and acting at arm’s length to Mr. Markwart. This written proposal must be supported by detailed plan prepared by the professional property management firm for the operation and management of the building which provides for, but is not limited to monitoring the building, on site security and controlled access and egress systems. This proposal must also be accompanied by structural assessment report, current to the present date and signed by professional engineer licensed to consult on structural engineering in Saskatchewan, that: i) verifies the structural integrity of the building; ii) provides recommendations to address any Building Code and Public Health deficiencies required to bring the building up to standard and iii) presents timetable for completion of these deficiencies; it being understood that such written proposal shall be presented to the Board, within the time prescribed, to consider acceptance and approval which approval, if given, shall be subject to Larry Markwart entering into form of an agreement with The City of Prince Albert which provides for the adherence to and compliance with the laws, regulations and codes applicable to the use and operation of the building (the “Compliance Agreement”), and which specifically includes: i) covenants of Larry Markwart which require him to acknowledge and agree that the ownership, operation or management of the property shall be undertaken in manner strictly compliant with the applicable Federal and Provincial laws, regulations and codes, as well as the applicable City of Prince Albert bylaws specifically including any bylaws which relate to the amenities of the neighborhood and vicinity, the health, safety and welfare of the people living in the neighborhood and within the building, and the applicable housing, zoning and maintenance standards for the building; ii) covenant given by Larry Markwart that he will require the property management firm, as condition of any management contract, to undertake and agree to manage the property in manner strictly compliant with the aforementioned legislation; and iii) default provision allowing the City, anytime during the first five (5) year period from the date of signing the Compliance Agreement to immediately terminate the agreement upon breach of any of these covenants. If termination is invoked by the City, the Order to vacate and Demolish the building shall become immediately enforceable. If after five (5) years the Compliance Agreement continues to be in good standing, the Order to Vacate and Demolish dated November 18th, 2004, shall be repealed and set aside; b) Larry Markwart will also be given the opportunity for period of twelve (12) months from the date of this decision to sell the property to an arm’s length third party by which time Mr. Markwart will be required to notify the Board with appropriate particulars of the sale for the Board’s approval to be accompanied by copy of the sale agreement which discloses the provisions of this decision relative to the use of the property. In the event the Board approves sale to an arms length third party purchaser, the Order to Vacate and Demolish dated November 18th, 2004, shall be repealed and set aside; If Larry Markwart elects not to pursue either opportunity as outlined above or fails to secure the Board’s acceptance and approval within the timeframes prescribed, and subject to any other Order this Board may be asked to make, the Order to Vacate and Demolish shall be confirmed and become immediately enforceable. The Nuisance Abatement Order dated November 18, 2004, is hereby modified in the manner described above. [6] As result of the board’s decision to confirm the demolition order, Markwart retained Peter V. Abrametz to launch an appeal to the Court of Queen’s Bench in accordance with s.329(4) and (5) of The Cities Act, which states: (4) decision of the local appeal board or council on an appeal pursuant to subsection (1) may be appealed to the court on question of law or jurisdiction only within 30 days after the date the decision is made. (5) On an appeal pursuant to subsection (4), the court may: (a) confirm, modify or repeal the order or decision appealed from; or (b) order the matter to be returned to the local appeal board or council to be dealt with in light of the court’s decision on the question of law or jurisdiction. [7] Mr. Abrametz filed brief of law prior to this appeal being heard on May 26, 2009. At the commencement of the proceedings, Mr. Abrametz sought leave of the court to withdraw as Markwart’s counsel because Markwart wanted to present oral argument himself. Markwart confirmed this was his position and stated that he was ready to proceed with the appeal to the Court of Queen’s Bench without any adjournment. [8] As stated by s. 329(4) of The Cities Act, the board’s decision may only be appealed on question of law or jurisdiction. This court’s role under The Cities Act is analogous to that under The Residential Tenancies Act, 2006. This court’s role is supervisory one with respect to the law and the board’s jurisdiction. Deference must be shown to the board. See: Reich v. Lohse (1994), 1994 CanLII 4691 (SK CA), 123 Sask. R. 114 (C.A.), and particularly, paragraphs 18 and 20. [9] The issues on appeal gleaned from Mr. Abrametz’ brief of law are:1. Whether the board erred in law by considering material which had not been before city council in the first appeal set for November 29, 2004;2. Whether the board committed a jurisdictional error by failing to disclose evidence to Markwart prior to its considering the appeal;3. Whether the board was biased against the less fortunate citizens of Prince Albert; 4. Whether the board lacked jurisdiction by both confirming the demolition order and modifying the demolition order. [10] From Markwart’s oral argument, and distilling his own view of the facts, the issues seem to be: 1. Whether the board was biased against Markwart; 2. Whether the board erred in not concluding that the police allowed the nuisance from criminal activity to escalate so that the City would have reason to demolish the building. [11] The first ground of appeal is the question of the evidence before the board. The book of documents presented to the board consisted of the demolition order, and number of documents including the affidavit by Peter Halayka, the building inspector, sworn January 14, 2005, the affidavit of Staff Sergeant John Verge of the Prince Albert Police Services, sworn January 14, 2005 and the affidavit of Deputy Police Chief, Troy Cooper, sworn January 14, 2005. The affidavits address the issue of the original demolition order. The only relevant material filed subsequent to the original appeal to the City Council in November, 2004, is letter from the bylaw manager of the Prince Albert Police Service to Markwart, dated February 22, 2007, enclosing reports pertaining to February 9, 2007 inspection of the Minto Apartments and certain continuing building deficiencies. The board has complied with the direction of the Saskatchewan Court of Appeal to ensure all disclosure has been made to Markwart of relevant evidence that would be considered by the board. In this way, the board has ensured that Markwart knew the case he had to meet. No error of law has been committed. [12] The second issue pertains to Markwart’s allegation that evidence considered by the board was not disclosed to Markwart prior to the hearing before the board. Markwart filed an affidavit in this appeal, sworn March 20, 2009, swearing that the memorandum from Police Chief Dale McFee to the Board of Police Commissioners dated November 28, 2003 was never sent to him. He alleges that he could not deal with the issues raised in that memorandum. This memorandum outlined the unusually high number of police responses to complaints from the Minto Apartments. [13] The evidence before the board includes the same memorandum attached as Exhibit “C” to the affidavit of Troy Cooper, sworn January 14, 2005. Deputy Chief Cooper stated in this affidavit that the concerns addressed in the Memorandum to the Board of Police Commissioners were relayed to Markwart in meetings with Markwart on March 11, 2004 and April 6, 2004, several months prior to the demolition order of November 18, 2004. Thus, there is no merit to this ground of appeal. [14] Markwart alleges other police information was not disclosed to him prior to the appeal before the board. The board’s preliminary decision directed Markwart to apply to the court if he considered certain police files relevant to the hearing before the board. Markwart did not do so. It is too late to raise such allegation now. There is no denial of natural justice with respect to police information. [15] The third issue is whether the board was biased against the less fortunate citizens of Prince Albert. By way of background, the tenants of the Minto Apartments were people, in Markwart’s description, who were terminally addicted to drugs or alcohol, mentally challenged, or suffered from emotional or mental disorders. They were vulnerable people. Markwart argues that because the board confirmed the demolition of this apartment block, it was bias against these people. There is no evidence to support such an allegation. Oppositely, the evidence supports the board’s conclusion that the situation in the Minto Apartments constituted a nuisance relating to the use and activities surrounding the building, including the safety, health and welfare of the residents and surrounding neighbours. This is nuisance as defined by The Nuisance Abatement Bylaw, as previously decided by this court in the reasons of Klebuc J. (as he then was), at para. 26 of the decision cited at 2005 SKQB 143 (CanLII). [16] Markwart alleges that the board was biased against him. Markwart (through his then legal counsel) previously stated that the choice of five city councillors who had not been city councillors in 2004 caused no bias, either actual or perceived. Markwart has led no evidence to allege bias since that admission made to the board prior to its preliminary decision. [17] Markwart alleges that the police allowed criminal activity to escalate so that the City would have reason to grant the demolition order. There is no evidence to support such an allegation. This ground of appeal is dismissed. [18] Markwart’s intentions may well have been good when he decided to rent his apartment block to disadvantaged persons and those with addictions. But, to operate the apartment block in normal manner with so many people with so many needs and afflictions resulted in failed experiment. It led to situation that could not be controlled, not even by Markwart himself. The evidence is that he had sufficient notice to rectify the situation. He did not do so. The board’s finding that the demolition order was appropriate is reasonable finding for the board to have made. [19] The final ground of appeal advanced by Mr. Abrametz is that the board lacked jurisdiction when it both confirmed and modified the demolition order. In the board’s decision (quoted at para. herein), it confirmed the demolition order. At the end of its decision, the board stated the “nuisance abatement order dated November 18, 2004, is hereby modified in the manner described above.” It is submitted that the board cannot both confirm and modify the order appealed from; it must do one or the other. [20] reading of the decision shows that the board confirmed the demolition order, but it suspended enforcement of the order for six months to allow Markwart to remedy the underlying problems. Section 329(3) of The Cities Act may be interpreted to allow for what the board did. Furthermore, it gave Markwart an opportunity to remedy the problem. There is no merit to the contention that the board lacked jurisdiction to decide as it did. [21] Markwart complains that to bring the Minto Apartments to standard that complies with all regulatory authorities would now be too expensive. However, even disadvantaged persons are entitled to live in rental units that comply with all safety standards. [22] In summary, this appeal must be dismissed on all grounds. The board’s order is hereby confirmed. Counsel for the City advised that it would be appropriate to extend the suspension of enforcement of the demolition order to period of six months from the date of this court’s decision. Therefore Markwart is granted a period of six months from July 24, 2009 to bring forth his written proposal as outlined in the board’s decision. J. A. R. ROTHERY
The appellant appeals a demolition order pursuant to s. 329(4) of The Cities Act issued against his property. Issues on appeal was whether the board erred by considering material which had not been before city council, whether the board committed a jurisdictional error by failing to disclose evidence to the appellant prior to considering the appeal, and whether the board was biased against the appellant. HELD: The appeal is dismissed on all grounds. The board's order is confirmed. Counsel for the City advised that it would be appropriate to extend the suspension of enforcement of the demolition order to a period of 6 months from the date of this court order. The applicant is granted a 6 month period to remedy the problems identified. 1) The board complied with the directions of the Saskatchewan Court of Appeal to ensure all disclosure had been made to the appellant of relevant evidence that would be considered by the board. The board has ensured that the appellant knew the case he had to meet. No error of law has been committed. 2) The appellant had all the information considered by the board disclosed to him. 3) There is no evidence of bias. Oppositely, the evidence supports the board's conclusion that the situation in the building constituted a nuisance related to the activities around the building, including the safety of the residents and surrounding neighbours. There is no evidence of bias against the appellant personally.