IN THE MATTER OF AN APPLICATION FOR STAY OF AN ORDER ISSUED UNDER

THE UNIFORM BUILDING AND ACCESSIBILITY STANDARDS ACT

BETWEEN:
WESTGATE PROPERTIES LTD.
APPLICANT (APPELLANT)
AND

THE CITY OF REGINA

RESPONDENT

DECISION OF THE SASKATCHEWAN BUILDING

AND ACCESSIBILITY STANDARDS APPEAL BOARD

Board Members:
Keith Hanson, Chairperson; Len Gendall, Secretary; Ron Filleul; Jake Meyer;
Mike Sazynski; and Judy Winship

Counsel:
Sahil Shoor and Neil Abbott, Gowling WLG (Canada) LLP, for Westgate Properties Ltd.
Christine Clifford, City Solicitor’s Office of Regina, for the City of Regina

Heard: May 16, 2018

Decision: May 25, 2018
 2

1. This decision involves an application for a stay of an order issued by a municipal building
official under section 17 of The Uniform Building Accessibility Standards Act, S.S. 1983 –
83, c. U-1.2, (hereafter referred to as “UBAS Act”) and the City of Regina Building Bylaw
No. 2003 – 7, titled The Building Bylaw.

FACTS

2. The Applicant, Westgate Properties Ltd. (“Westgate”), is the owner of a property located at
the northeast corner of the intersection of Albert Street and Victoria Avenue in the city of
Regina with a civic address of 1971 Albert Street, Regina, Saskatchewan.
3. This is one of the main street intersections in the city of Regina and has high traffic volumes.
4. Westgate obtained building permits in 2015 to develop the property with a 27 storey building
with five levels of underground parking. The building permits expired in September 2017.
5. In the meantime, Westgate had engaged contractors who excavated the building site, leaving
an excavation 17 metres in depth abutting the adjacent building foundations to the north and
east and the roadway to the west and south. Utility lines are buried beneath these adjacent
roadways. Development ceased at this stage around August 2017 and has not resumed.
6. The Respondent, the City of Regina (“the City”), is the local authority responsible for
administration and enforcement of the UBAS Act in the city of Regina.
7. A City building official, exercising his authority as a local building official, issued an Order
to Comply to Westgate on October 6, 2017 requiring a report from a professional engineer
about the integrity of the underpinning, shoring, bracing and/or hoarding around the
excavation.
8. Tetra Tech provided a report dated October 27, 2017 stating, amongst other things, “that the
excavation for the site is currently dormant” and “the current status of the shoring work
(acknowledging the concern in the interior corner) is ‘safe’”, but that no further excavation
work should proceed until specified remediation work is completed.
9. Isherwood Geostructural Engineers, the Shoring Engineer of Record, wrote a letter dated
November 3, 2017 setting out specified work to be done at the building site, concluding with
the statement “If all of the above requirements are not completed by November 30, 2017,
Isherwood will issue an instruction for the backfilling of the site and notify the City of
Regina’s Chief Engineer.”
 3

10. The excavation remained in this state with temporary shorings in place over the winter of
2017/18, during which time the City and Westgate had further communication and
correspondence about the building site.
11. Jeremy Chalupiak, City Building Official, on April 3, 2018 issued an Order to Comply under
section 17 of the UBAS Act and The Building Bylaw. This Order was directed to Westgate
Properties Ltd., requiring it to backfill the site by April 30, 2018. The reasons given for the
Order were:
1. The property is in contravention of Division B, section 4.2.5.1 of the National
Building Code of Canada, 2015;
2. The property is in an unsafe condition because the owner has failed to comply
with conditions regarding redesign and replacement of the temporary
excavation support and recommencement of construction as stated in the
November 3, 2017 report of the engineer of record within the timeframes
stated in the November 3, 2017 report of the engineer of record.

12. Westgate appealed this Order on April 17, 2018 to the Saskatchewan Building and
Accessibility Standards Appeal Board (“the Appeal Board.
13. Westgate also gave notice on April 17, 2018 of its application for a stay of the Order,
pending a decision on its appeal.
14. The Appeal Board, with notice to the parties, convened a hearing of Westgate’s application
by teleconference on May 16, 2018, hearing from counsel who had both pre-filed written
materials. At the conclusion of the hearing, the Appeal Board reserved its decision.
 4

REASONS FOR DECISION

15. Section 20 of UBAS Act provides that an appeal does not stay an order of a building official
“unless otherwise ordered by the appeal board”.

Onus on Applicant

16. Westgate, as Applicant, has the onus of convincing the Appeal Board that a stay should be
granted.

Test for Stay

17. Westgate, in its verbal argument, stated that, in deciding whether to grant a stay, the Appeal
Board should apply the test from RJR-MacDonald Ltd. v. Canada (Attorney General), [1994]
1 SCR 311 That test involves three questions or criteria:
1. Does the appeal disclose a serious question to be tried?
2. Would the applicant suffer irreparable harm if there was no stay? and
3. Where is the balance of convenience – which of the parties is likely to suffer greater harm
from the granting or refusing of a stay pending a decision on the appeal?
18. The Appeal Board will apply this test to Westgate’s application for a stay of the Order.

Does the appeal disclose a serious question to be tried?

19. Under this criteria, the Appeal Board does not seek to determine the main appeal, but only if
the grounds of appeal disclose a serious question to be tried on the appeal.
20. Westgate, in its Notice of Appeal and in its written and verbal submissions, argued that the
Order is invalid because it refers to the National Building Code, 2015, which came into effect
on January 1, 2018. Since the building permits were issued before then, the operative Code
would be the National Building Code, 2010.
21. While this and other issues will be finally determined on the main appeal, the Appeal Board
did not consider this to be strong argument against the validity of the Order. As counsel for
the City pointed out, the building permits in question expired in 2017. The National Building
Code, 2015 was in effect at the time the Order was issued. The relevant provisions of the
2010 and 2015 Codes are identical.
 5

22. The Applicant, Westgate, also argued that the Appeal Board cannot consider any evidence
obtained after April 3, 2018, being the date the Order was issued. The Appeal Board does
not agree it is so restricted. If the Appeal Board were so restricted, owners would be
similarly precluded from presenting evidence gathered after an Order was issued.
23. Westgate says there is no evidence to support the “unsafe condition” alleged in the Order.
On the contrary, the Tetra Tech report of October 27, 2017 stated “the current status of
installation of the shoring works … is ‘safe’” and “The shoring walls will not suddenly
collapse.” Further, Isherwood’s letter of November 3, 2017 contemplated no action before
April 30, 2018.
24. But the Tetra Tech report also stated “The current status of installation of the shoring works
is not acceptable in Tetra Tech’s opinion. Immediate resumption of construction is required
to complete the installation of the shoring works to the current excavation.” And, if the
Appeal Board considers evidence from after April 3, 2018, as it believes it can, the Appeal
Board may consider Isherwood’s later correspondence, including its letter of May 10, 2018
stating “the Capitol Pointe excavation is to be decommissioned immediately” and
withdrawing from the project, as did Double Star Drilling Ltd. the following day. This
evidence suggests serious concerns with the excavation by those most familiar with it.
25. While subject to proof at the main hearing of the appeal, the Order itself represents a
statement by the local building official that he “is satisfied that a building … is in an unsafe
condition”. Subsection 17(4) of the UBAS Act, under which the Order was issued, sets out
alternate reasons for “an unsafe condition”, including “its faulty construction, its ruinous or
dilapidated state, its abandonment, its open or unguarded condition or any other reason”.
The City contrasts the criteria of “an unsafe condition” in subsection 17(4) with the criteria in
subsection 17(5) of “an imminent danger “, under which immediate action is authorized,
arguing there is sufficient evidence of “an unsafe condition” to support the Order.
26. The Applicant, Westgate, also argued the Order was premature, since the letter from
Isherwood contemplated backfilling of the excavation after April 30, 2018, if the requested
work was not completed by that date. The Appeal Board finds it unlikely that this letter from
Westgate’s Shoring Engineer of Record could forestall earlier action by the City, as the local
building authority.
 6

27. In conclusion, while the appeal does disclose issues to be tried, they do not appear, on first
examination, to be strong points. It should be emphasized that this is not a final judgment on
the grounds of appeal, which must await the hearing of the appeal.

Would the applicant suffer irreparable harm if there was no stay?

28. Westgate says it has spent fourteen million dollars on this development. If the excavation is
filled in and its appeal is allowed, that will delay development and involve additional costs to
resume development.
29. The Appeal Board is not convinced this potential harm is either irreparable or inevitable.
30. While the City is entitled to enforce the Order in the absence of a stay, counsel for the City
stated that the required public procurement process will delay the time when backfilling
could begin for several weeks. The Appeal Board is prepared to hear the appeal within that
timeframe.
31. In conclusion, the Appeal Board is not convinced that the Applicant will suffer irreparable
harm if there is no stay.

Where is the balance of convenience?

32. If a stay is not granted, the City may enforce the Order under section 21 of the UBAS Act by
doing the required work. As discussed above, this would be to the detriment of the
development, involving cost and delay to the project.
33. The City points out that this development has been underway for several years with very
limited progress. The construction site and development on this busy downtown intersection
impede traffic and present a potential risk to public safety. The public should not be placed
at risk.
34. In considering the balance of convenience, it must be recognized that this involves more than
competing private interests, but also the public interest, which is of paramount concern. The
public is entitled to see its laws obeyed and to be protected from harm.
35. Recognizing that time is of the essence, the Board is prepared to move quickly to hear this
appeal. While not suggesting the City should delay enforcement, which is entirely within its
discretion, the Appeal Board believes the hearing of the appeal can be scheduled before the
final stage of the contemplated work.
 7

36. While this criteria is more difficult to judge, the Appeal Board believes that the balance of
convenience favours denial of the stay.

CONCLUSION

37. For the reasons stated above, the Appeal Board is not satisfied that Westgate has satisfied
the test for a stay of the Order. The Appeal Board therefore denies the application to stay the
Order.
38. The Appeal Board directs its Secretary to schedule the appeal and provide notice of hearing
to the parties.
39. The Appeal Board thanks counsel for their submissions.

Decision dated this 25th day of May 2018

Saskatchewan Building and Accessibility Standards Appeal Board

Per: Keith Hanson, Chairperson

Len Gendall, Secretary