Ontario developer loses appeal, ordered to tear down structure built without proper permits

The Town of Ajax has won a second court challenge against a Woodbridge developer, four-and-a-half years after the company began construction on a four-storey structure without the necessary permits.

The Ontario Divisional Court upheld the demolition order for the property at 599 Kingston Road West on Thursday, dismissing the appeal brought forward by owner First Avenue after coming out on the wrong end of a Superior Court of Justice ruling in September.

The developer has been ordered to tear down the partially built structure at the southeast corner of Kingston Road and Church Street in Pickering Village and Ajax Mayor Shaun Collier said the town, working closely with legal counsel, will take the “appropriate steps” to see that the demolition order is implemented.

Collier is calling the latest ruling a “significant victory” for the town and residents of Pickering Village.

“For years, our town has stood firm. Since 2021, we have worked through every necessary process with First Avenue, the Ministry of the Environment, Conservation and Parks and the courts to hold this project accountable,” Collier said in a statement. “This has not been a quick or easy fight, but we remained committed to defending the interests of our residents and protecting the integrity of our planning and development rules.”

“Today’s decision sends a clear message: our community will not be ignored, and developments that bypass the law will not be tolerated in Ajax.”

Ajax Mayor Shaun Collier

First Avenue Properties purchased the land at Church Street in Ajax in 2015 with the intent of building a four-storey mixed-use project on the site, which had been used as an automotive repair and sales facility and needed remediation.

Various site plans were presented to the Town of Ajax and conditional approval was granted to the developer in 2021. A full building permit was not obtained, however.

According to court documents from the Ontario Court of Justice the town became aware the development was exceeding the scope of the conditional permit by October 13 of that year, prompting a visit from a building inspector, who observed construction of “above grade elements.”

“Not only did First Avenue not have a full building permit for above-grade elements, First Avenue had failed to have the below-grade elements inspected.  First Avenue acknowledges these two facts to be true,” court was told.

The town immediately issued an Order to Comply, requiring First Avenue to cease working on all above-grade elements, but a visit on October 27 revealed that the company had “disregarded the Order to Comply and continued with the above-grade construction.”

Core slabs were subsequently installed on the second floor to act as a structural support for the walls without, court heard, authorization from the town.

The two sides have been arguing back and forth in the years since and the partially constructed building – an entire ground floor – has sat unfinished since November 2021 and remains an active construction site.

First Avenue told the court that an order for demolition would unfairly punish it for circumstances beyond its control.

In her ruling last September, Justice Annette Casullo said she “could not disagree more.”

“First Avenue finds itself in these circumstances solely of its own accord.  It failed to comply with the terms it explicitly agreed to,” she said. “First Avenue decided it did not want to remediate the site.  Perhaps remediation was going to be too expensive.  Or perhaps the site was beyond remediation.  There is no evidence as to ‘why’ First Avenue chose not to remediate, and I need not make any finding in this regard.”

First Avenue told the court that instead of demolition, a better course of action is to allow them to continue working toward obtaining the requisite building permit.

Casullo, however, ruled that the developer made a “calculated decision” to build beyond the scope of the permit and “without the benefit of the required inspections.”

“First Avenue’s conduct must not be rewarded.  An order for demolition is the only just and appropriate remedy in the circumstances.”

The project, complete with renderings, is listed on the First Avenue website as ‘FiveNineNine,’ described as an up‐coming low‐rise modern apartment building, with strategically selected street level retail stores, on‐site parking and waste facilities and 60 one- and two-bedroom suites.

First Avenue Developments has not responded to requests for comment on the latest ruling.