由于篇幅太长可从下面连接阅读原文:
http://www.health.alberta.ca/documents/PHAB-06-2015-07-2015-Decision.pdf
故事摘要：加拿大爱城房东Gohar Pervez 和Sarah Fassman在2012和2013买了两个房子，买了以后就把房子装修提高到符合标准。AHS和爱城City均检查过, 没有不合格的地方。2015年5月房东把一个房子的主层和另一个房子整栋清空房客后进行装修。正在装修期间AHS把这两个房子给condemn了。一但AHS把房子condenm 的order命令注册在房子的Title名下，银行就会来要债或拍卖。
有Keith Gall的房子被捏造证据condemn的例子, 细思量这房主能不感到恐惧而上诉吗？上诉成功没有被坑。在加拿大官府 condemn 房子与在中国官府强拆房子有类似之处。从今年结案的另一个案子来看，AHS 与这房东恩怨不浅。
图片来自网络版权归原作者所有
Appeal No: 6/2015 & 7/2015
PUBLIC HEALTH APPEAL BOARD
IN THE MATIER OF THE PUBLIC HEALTH ACT,
CHAPTER P-37, R.S.A. 2000
AND ITS REGULATIONS
IN THE MATIER OF APPEALS TO
THE PUBLIC HEALTH APPEAL BOARD
BY 1443028 ALBERTA LTD, GOHAR TASNEEM,
HOME PLACEMENTS SYSTEMS, SARAH FASSMAN,
and GOHAR (CARMEN) PERVEZ
OF THE EXECUTIVE OFFICER'S ORDERS
ISSUED BY ALBERTA HEALTH SERVICES
ZONE 4 EDMONTON
DATED JUNE 15, 2015
HEARING HELD JULY 29, 2015
APPEARANCES:
Gohar Pervez 房东, Appellant
Sarah Fassman 房东, Appellant
Ivan Bernardo, Legal Counsel, 私人公司律师, Alberta Health Services, Respondent
Ingrid Bohac, Executive Officer, Alberta Health Services, Respondent
BOARD DECISION: The decision of the Board is to vary both Executive Officer Orders dated June 15, 2015 issued for the main floor of 10727-93 Street, Edmonton, Alberta and the entire building at 10741 -93 Street, Edmonton, Alberta.
A. INTRODUCTION
The Executive Officer's Orders concerningthe properties at 10727- 93 Street and 10741- 93
Street, Edmonton, Alberta dated June 15,2015, are attached as Appendix 1 and 2 respectively.
The Order for 10727 -93 Street pertainsto the main floor only. The main floor was vacant and
the basement and top floor were occupiedby tenants. The Order for 10741- 93 Street is with
respect to the entire building. The Orders required that: the premises be secured from any and
all unauthorized entry; the Ownerundertake and diligently pursue the completion of a number
of work/repair items in and about thepremises, including testing for mould damage and
asbestos materials; and until such timeas the work was completed to the satisfaction of an Executive Officer of Alberta Health Services, the premises were to remain vacant and secure
from unauthorized entry. Both premiseswere declared unfit for human habitation.
On June 22, 2015 the Notices of Appealwith respect to both Orders were received by the Public
Health Appeal Board.
A stay hearing was held with the PublicHealth Appeal Board Chair on July 8, 2015.
Alberta Health Services and theAppellants attended by way of telephone conference.
The Chair did not grant a stay of theOrders.
The Public Health Appeal Board heard theappeals on July 29, 2015 in Room lSG, 15th Floor,
10155 - 102 Street, Edmonton, Alberta. Both the Appellants and Respondent agreedto the Board hearing the two appeals at the same time.
B. TIMING OF THE APPEAL
The Appellants received verbal ordersJune 11, 2015 and the written Orders were dated June
15, 2015. The Notices of Appeal werereceived by the Board on June 22, 2015.
Section 5(3) of the Public Health Act requires the Appellantsto serve the notice of the appeal
within 10 days after receiving notice ofthe decision being appealed. If the Notice of Appeal is
not served within the 10 day time frame,the Board may extend the time within which an
appeal may be taken if it considers itappropriate to do so. The Notice of Appeal was received
within 10 days of the written Ordershaving been issued and 11 days after receiving the verbal
Orders. There was no objection fromAlberta Health Services to extending the time for
receiving the Notice of Appeal. The Boardfound it appropriate to extend this time period.
C. JURISDICTION
There were no objections to the Board'sjurisdiction to hear these appeals.
D. FACTS
The facts concerning the conditions thatexisted in and about the premises as documented in
the Orders were not disputed by theAppellants.
E. APPELLANTS' SUBMISSIONS
The Appellants questioned Alberta HealthServices' right to inspect the properties and issue
Unfit for Human Habitation Orders underthe circumstances that existed at the time the Orders were issued. The properties were boarded up, unoccupied, under renovation, regularly
inspected and had no outstanding contraventions at the time the renovations commenced.
Items that required repair as set out in the Orders were clearly either being repaired or were
the result of the renovations beingundertaken. The Appellants referred to the work and
renovations that were underway on the properties as due diligence and submitted that was a
defence to the Orders.
In addition, the Appellants believed an agreement with Alberta Health Services existed wherein
they were to advise them when theproperties were ready for occupancy and an inspection
would be completed at that time.
The Appellants submitted that Alberta Health Services was aware of all of these circumstances
when the Orders were issued and thatissuing the Orders was unfair.
The Appellants maintained that the contraventions existing at the time the Orders were issued
did not warrant "Unfit for HumanHabitation" Orders or environmental testing for mould and
asbestos as was required in the Orders.They contended that the Executive Officer who issued
the Orders was over-zealous, lacked knowledge and was over-stepping her authority.
The Appellants claimed these Orders affected them financially and hurt their reputation. They
were of the opinion that Unfit for HumanHabitation Orders carried a stigma in the mind of
the public. They referred to the Ordersas "condemnation orders"（相当于中国的强拆） and submitted that these Orders are registered as a Health Hazardon titles to properties as was done in this instance.
They submitted that by issuing Unfit for Human Habitation Orders and registering notices of
health hazard on the titles to the properties, one of the lenders considered calling in a demand
loan, they lost a potential lessee forone of the buildings and the tenants in the basement and
upper floors of the building where the main floor was "condemned" gave notice to leave the
premises.
They asked the Public Health Appeal Board to reverse the Orders or in the alternative, to vary
them. The two properties were acquired in 2012 and 2013. The Appellants buy derelict and
condemned properties in the inner city and bring them up to standard for resale or occupancy.
They speculated that over the pastfifteen years they had dealt with over 800 such properties.
They submitted that as such, they were fully aware of what had to be done to bring the
properties up to minimum housing standards. The Appellants claimed they had many dealings
with Alberta Health Services over theyears on these and other properties and have never been
so unfairly treated. These were the first appeals of Public Health Act Orders they had initiated.
The Appellants presented a binder markedas exhibit 5 at the hearing. The binder included case
law to support their position that duediligence was a defence to the Orders. The majority of
the paper work in the binder served to illustrate the history of inspections and reports for the
properties by the Sustainable Development Team (Fire Department, City of Edmonton Housing
Branch and Alberta Health Services).
They pointed to this paperwork as proof that: they had a history of collaborating with building
and health authorities; there were no outstanding pubic health issues prior to the properties
being boarded up for renovation work; the properties were inspected four times a year by
Executive Officers from Alberta HeathServices; and, in the past, contraventions were either
addressed with informal reports outlining work to be completed or work/repair orders.
The Appellants told the Board that in April of 2015 notice was given to the tenants to vacate the
properties as they wished to commence renovations. Once the places were vacant, the
windows were boarded up and renovationscommenced.
The Appellants received two letters, onefor each property, dated June 5, 2015, from an
Executive Officer of Alberta HealthServices. The letters documented that Alberta Health
Services had noticed the windows of bothproperties were boarded up and that a telephone
conversation with the Appellantsconfirmed the properties were vacant and under renovation.
The letters continued:
"The premises are to remain secureand vacant until an inspection of the entire premises is conducted by
an Executive Officer and permissiongranted for re-occupancy. The premises, in its entirety must meet
the Alberta Housing Regulations andMinimum Housing and Health Standards prior tore-occupancy" and
"interim inspections may take placeto determine occupancy and/or work in progress".
The Appellants took exception to thetone of the letters and also questioned the authority
Alberta Health Services had to stipulatethe hours when the work could be completed and the
other requirements set out in theletters.
On June 11, 2015 the SustainableDevelopment team inspected the properties and Alberta
Health Services participated in theinspections. The Appellants noted that the 10727- 93
Street property was not scheduled for aninspection by the Sustainable Development team but
they invited them to inspect thisproperty as well.
The written version of the Unfit for Human Habitation Orders were issued on June 15, 2015.
F. RESPONDENT'S SUBMISSIONS
Alberta Health Services submitted thatthe Orders were issued pursuant to section 62 of the
Public Health Act and that the ExecutiveOfficer had full authority to issue the Orders in the
circumstances. The Respondent reiteratedthat the Appellants were not contesting that any of
the conditions described in the Ordersexisted at the time of the inspection. The Respondent
therefore maintained the Orders shouldbe confirmed by the Public Health Appeal Board.
The Respondent provided two binders ofevidence, one for each property. They were entered
as exhibits 7 and 8 at the hearing. Thebinders contained records of Alberta Health Services'
dealings with the Appellants concerningthe properties.
The Respondent also submitted intoevidence R. v. Goebel, 2003 ABQB 422, supporting the
proposition that it was not the duty ofAlberta Health Services to tell owners how to correct
defects or with what priority and thatno escalation in the severity of orders is required to
subsequently order an "Unfit forHuman Habitation" order. An Executive Officer had the
authority to issue this type of order inthe first instance.
The Respondent submitted that the Actand its Regulations permit an Executive Officer to
inspect a rental property even if it isnot inhabited. The properties were public places and
therefore the Appellants' consent for aninspection was not required. After an inspection, the
Executive Officer may issue an Order ifthe conditions of the premises are such that they are or
may become injurious or dangerous to thepublic health or which might hinder the prevention
or suppression of disease. TheRespondent submitted that it need not be proven that the
conditions were injurious or dangerousto the public health, only that they may become so.
Alberta Health Services submitted thatdue diligence is not a defence for orders issued pursuant
to the Public Health Act and thatdue diligence is only a defence when there is a prosecution
pursuant to the Act. The case lawprovided by the Appellants supporting his due diligence
defence was distinguished by theRespondent on these grounds.
The Respondent submitted that the titleor name of these Orders, Unfit for Human Habitation,
were of no consequence and not set outin the Public Health Act. Alberta Health Services
submitted that the title or name of theOrders was for educational purposes only, that is, so the
property owners knew what had to be doneto satisfy the conditions of the order.
In addition, a notice of health hazardwas registered on title to properties when the
contraventions of the Act and Regulationswere serious, not just when properties are declared
unfit for human habitation. TheRespondent submitted that the Board had no jurisdiction to
direct the removal of the notices ofhealth hazard from the titles to the properties.
The Executive Officer explained that theUnfit for Human Habitation Orders with the
requirement of environmental testing formould and asbestos were issued for the following
reasons:
• Asbestos concerns as buildings builtprior to 1970 and under repair which may
disturb materials that could cause harmto the public;
• Possible water leaking behind thewalls;
• Enormity of the contraventions;
• The properties were vacant;
• A repair order and an unfit for humanhabitation order is the same;
• There were long standing files onthese properties;
• The history of contraventions, repairsand more contraventions on other properties
owned by the Appellants; and
• Lack of confidence in the Appellantsto complete the renovations up to the required
standards due to their history.
With regard to the Appellants' claimthat they were not treated fairly by Alberta Health Services
in these instances, the Respondentsuggested that the basis for the claim was that the
Appellants did not like to be told whatto do. In addition, given the number of properties the
Appellants owned and that they had onlythree outstanding Orders, including the two being
appealed, it was clear Alberta HealthServices was treating the Appellants fairly.
Lastly, the Respondent suggested theOrders only outlined renovations the Appellants were
planning to do in any event.
G. INFORMATION RECEIVEDAFTER THE HEARING
After the hearing, the Board receivedfrom Alberta Health Services a copy of a Court of Queen's
Bench Order dated August 4, 2015 thatwas issued with regard to these properties. The
Applicant was Alberta Health Servicesand the Respondents were the Appellants in this appeal.
The Court Order was with respect toenforcement proceedings pursuant to the Public Health
Act.
The Board also received correspondencefrom the Appellants with respect to an inspection by
Alberta Health Services of theproperties that occurred after the appeal hearing.
The Board's decision was not influencedby the information received by either party after the
appeal hearing.
H. ISSUES
1. Did Alberta Health Services have thelegislative authority to inspect these rental
properties that were boarded up,uninhabited and under renovation and then issue Orders
pursuant to s.62 of the Public HealthAct.
2. Were the Orders issued by AlbertaHealth Services declaring the properties to be unfit
for human habitation a reasonableexercise of professional discretion given the
circumstances that existed at the timethe Orders were issued.
I. DECISION
The Board has decided to vary bothOrders as set out below in the SUMMARY section.
J. REASONS
Alberta Health Services had thelegislative authority to inspect the rental properties whether
they were inhabited by tenants or not.
The Public Health Act states:
s. 59(1) An executive officer may inspectany public place for the purpose of determining the presence of
a nuisance or determining whether thisAct and the regulations are being complied with.
s. 1(ii) "public place"includes any place in which the public has an interest arising out of the needto
safeguard the public health and includes,without limitation ....
s. 1(viii) accommodation facilities,including all rental accommodation.
And the Housing Regulation 173/99states:
1 (b): "housing premises" meansany structure that is used or intended to be used wholly or partly for
accommodation purposes and includes
(i) an apartment building,
(ii) a dormitory,
(iii) a dwelling,
(iv) a hotel or motel,
(v) a lodging house,
(vi) a mobile home, and
(vii) a rooming house (emphasis added)
There was no disagreement between theparties about whether the properties were intended
to be used for accommodation purposes.Whether the properties were occupied or not, they
would remain public places as defined inthe Act. In addition, the fact that the properties were
under renovation would not alter orremove the Executive Officer's authority to inspect the
properties.
As the properties were public as definedin the Act, consent of the owner to inspect
the premises was not required. The Actstates:
59(1) An executive officer may inspectany public place for the purpose of determining the presence of
a nuisance or determining whether thisAct and the regulations are being complied with.
(2) An executive officer making aninspection under subsection (1) may
(a) at any reasonable hour enter in or onthe public place that is the subject of the inspection;
(b) require the production of any books,records or other documents that are relevant to the
purpose of the inspection and examinethem, make copies of them or remove them temporarily
for the purpose of making copies;
(c) make reasonable oral or written inquiriesof any person who the executive officer believes on
reasonable grounds may have informationrelevant to the subject-matter of the inspection;
(d)inspect and take samples of any substance, food, medication or equipmentbeing used in or on
the public place;
(e) perform tests, take photographs andmake recordings in respect of the public place.
After an inspection the ExecutiveOfficer may issue an Order as was done in this instance.
Section 62(1} of the Public HealthAct states:
Where, after an inspection under section59 or 60,theexecutive officer has reasonable and probable
grounds to believe that a nuisance existsin or on the public place or private place that was the subject of
the inspection or that the place or theowner of it or any other person is in contravention of this Act or
the regulations, the executive officermay issue a written order in accordance with this section.
And section 62(4} states:
An order may include, but is not limited to,provisions for the following:
a. requiring the vacating of the place orany part of it;
b. declaring the place or any part of itto be unfit for human habitation;
c. requiring the closure of the place orany part of it;
d. requiring the doing of work specifiedin the order in, on or about the place;
e. requiring the removal from the placeor the vicinity of the place of anything
that the order states causes a nuisance;
f. requiring the destruction of anythingspecified in the order;
g. prohibiting or regulating the selling,offering for sale, supplying, distributing,
displaying, manufacturing, preparing,preserving, processing, packaging, serving,
storing, transporting or handling of anyfood or thing in, on, to or from the place.
Once an order has been issued, a noticeof health hazard may be registered on the titles to the
properties. The Public Health Act states:
s.64(1) When an order is issued undersection 62, the regional health authority may cause to be filed with
the Registrar of Land Titles a notice ofhealth hazard against the registration of any person as transferee
or owner of, or any instrumentaffecting, the land that is the subject of the order, unless the instrument
or certificate of title is expressed tobe subject to that notice.
(2) A notice of health hazard registeredunder this section does not lapse and shall not be cancelled or
withdrawn except on the receipt by theRegistrar of a notice in writing from the regional health authority
requesting cancellation or withdrawal.
(3) On registering a notice of healthhazard, the Registrar shall notify the person against whose title the
notice is registered and notify caveatorsand mortgagees when the addresses of those persons may be
ascertained from the certificate of title.
The Board finds that the ExecutiveOfficer had the legislative authority to inspect the
Appellants' properties without theirconsent, issue orders and register notices of health hazard
on the titles to the properties.
However, the Board questions if issuingOrders that declared the properties unfit for human
habitation was a reasonable exercise ofprofessional discretion given the circumstances that
existed when the Orders were issued.
Section 62{1) of the Public HealthAct does not require the Executive Officer to issue an order
after an inspection when contraventionsexist and there are reasonable and probable grounds
to believe that a nuisance exists.Whether an order is issued or not is discretionary.
In addition, if an order is issued thereare several options available to the Executive Officer in
s62{4) of the Act with respect towhat the order will require of the owner and whether a
property will be declared unfit forhuman habitation.
It is the responsibility of theexecutive officer to exercise his or her professional discretion
taking into account all relevantinformation. The relevant information gathered must be
weighed according to its importance inthe decision making process. This information then
supports the decision that is made.
The Board finds that the ExecutiveOfficer, in her exercise of professional discretion when
issuing the Orders, did not givesufficient weight to the following circumstances:
• the properties were vacant and underrenovation;
• there were no serious contraventionsexisting on the properties prior to them being
boarded up in preparation forrenovations; and
• the expectations set out in the phonecall and letters between the parties just prior to
the inspections.
Properties were vacantand under renovation:
The Executive Officer stated that shedid take into consideration that the properties were
vacant when the Orders were issued andthat she was more likely to issue unfit for human
habitation orders if the properties werevacant as she prefers not to evict tenants if possible.
In this instance, the Executive Officergave excessive weight to the fact that the properties were
vacant. The Appellants wanted torenovate the properties and in order to do so they had
tenants vacate the premises. Theproperties being vacant should not have been a factor that
weighed in favour of declaring theproperties unfit for human habitation. The Appellants could
not have done significant renovations onthe properties if they had been occupied.
The very nature of renovations willsometimes render properties unfit for human habitation.
Electrical outlets covers and ventcovers are removed for wall repairs and painting. Window
screens are removed from windows forrepairs and painting. These matters were included as
contraventions in the Orders with noindication in the Orders that the properties were
undergoing renovations.
Also, the fact that some of the windowswere boarded up was included as contraventions in the
Orders even though Alberta HealthServices required that the buildings be secured during
renovations.
These renovation related contraventionsformed a part of the Executive Officer's assessment of
the "enormity" of thecontraventions. Too much weight was placed on the renovation related
contraventions in deciding that theproperties ought to be declared unfit for human habitation.
If the Executive Officer considered theongoing renovation work being completed to be
contraventions, it would have beenreasonable to include the context in the Orders, that is, the
Orders ought to have clearly set outthat the properties were under renovations. This would
have resulted in the Orders accuratelyreflecting the circumstances relating to the properties.
In addition, there was no indication inthe Orders that the requirement for environmental
testing was solely due to the age of thebuildings, built before 1970, and that renovations could
potentially disturb asbestos or mould aswas explained by Alberta Health Services at the
hearing.
A potential lessee or lender reviewingthese Orders as issued by the Executive Officer would not
have sufficient information or contextto judge the true nature of the contraventions and the
work that was ordered to be completed.This would be particularly important when orders
result in notices of health hazardsbeing registered on titles as they were in this instance.
The Appellants believed that issuingunfit for human habitation orders resulted in notices of
health hazards being registered on titleto both properties. The Public Health Act only requires
an order issued pursuant to s. 62 for anotice of health hazard to be registered on title. Alberta
Health Services maintained that thetitle or name of the Order, be it "Unfit for Human
Habitation" or a "RepairOrder", was irrelevant as the circumstances of either Orders could
result in a notice of a health hazardbeing registered on the titles to the properties.
Alberta Health Services policy was setout in correspondence dated April 28, 2009 to a previous
owner of one of the properties andprovided by Alberta Health Services in their binder of
evidence. It stated:
Alberta Health Services-Capital Health'spractice, since 2002, is to register a notice of health hazard
against the land title of any premisesdeclared unfit for human habitation. The notice of health hazard
serves to advise a caveator, mortgagee orprospective purchaser that an Executive Officer's Order has
been issued against the premises. Thenotice of health hazard does not lapse and cannot be cancelled or
withdrawn without the expressed writtenconsent of the Regional Health Authority.
Whether notices of health hazard wouldhave been registered on title if the Orders issued did
not declare the properties unfit forhuman habitation is uncertain. However by not including
the context in which the contraventionsarose, that is, state that the properties were
undergoing renovations, a potentialpurchaser, lender, lessee or tenant reviewing the orders
would not have accurate information fromwhich to make decisions and this could have a
negative impact on an owner.
The Board finds that declaring theproperties unfit for human habitation and entitling the
Orders as Unfit for Human Habitation isnot the same as issuing what is referred to as a
"Repair Order" or a "WorkOrder". A reasonable person, including a lender, lessee or
potential tenant or purchaser wouldassume that an Unfit for Human Habitation Order is
more serious than an Order that merely requireswork to be completed or repairs to be
made. It is reasonable that an ownerwould believe that there is a stigma attached to an
"Unfit for Human HabitationOrder" that would not be found in other orders.
In this situation, Alberta HealthServices placed too much weight on the condition of the
properties that were the result ofrenovations. When those contraventions are considered in
context, a reasonable decision wouldhave been not to find the properties unfit for human
habitation. The Appellants referred tothe renovations that were underway as a "due
diligence defence". There is no duediligence defence for these statutory contraventions
cited in the Orders. However, thecircumstances known by Alberta Health Services, including
the renovations that had commenced,ought to have been considered and weighed
accordingly in the exercise ofprofessional discretion.
Ongoing Inspections andHistory of Inspections:
The evidence before the Board was thatthese two properties were regularly inspected every 3
months by several departments, includingthe Fire Protection Branch, the Sustainable
Development Department and AlbertaHealth Services. There were no major issues with the
properties prior to them being vacatedand boarded up for renovations.
At the hearing, the Executive Officercited the Appellants' previous history with respect to other
properties as one of the rationale forissuing the Orders, although she did not review the Health
Services' files for these properties.
The condition of the properties prior tothe renovations commencing ought to have been
considered when exercising professionaldiscretion and deciding if an order ought to be issued
and if so, what type of order wasappropriate in the circumstances. Given the history of
inspections for these properties priorto renovations commencing and that there were no
major contraventions, declaring theproperties unfit for human habitation during the
renovation process was not reasonable.
Interactions between theparties prior to the inspections
The binders of evidence provided byAlberta Health Services included notes dated June 5, 2015
by two Executive Health Officers, IngridBohac, who issued the two Orders and Chelsey
Velthuizen. The notes were with respectto a telephone conversation that occurred on that
date between one of the Appellants, Mr.Pervez, and Ms. Velthuizen. Her notes read as follows
(unedited):
Phone conversation between Camen Pervez.Phone call was on speaker and was witnessed by EHO I.
Bohac and partly by EHO K. Dong.
Carmen was advised that the phoneconversation was being witnessed by EHO I. Bohac.
Requested a full inspection of thepremises at 107 41 93 Street and 10727 93 Street on Monday, June 8,
2015
Carmen refused to allow the inspections,stating the premises were vacant therefore no need for an
inspection. Confirmed with Carmen that hewould not allow us to enter the premises. He stated, yes, you
cannot enter as they are vacant.
Advised Carmen that a re-inspection willbe required prior to occupancy of the premises. Carmen
indicated he would call prior tooccupancy. (sic)
The notes from the Executive Officer,Ingrid Bohac, who issued the Orders were similar:
A phone conversation occurred between theowner of the property and EHO Chelsey Velthuizen -it was
requested that the rental property stayvacant until the minimum housing and health standard is met as it
is presently boarded -an inspection wasrequest of the premises for Monday 08 June 2015 - he refused
on the grounds that as it was vacant atthis time it was not considered public property- he stated very
clearly that this property would not berented until the regulations were met (sic)
On June 5, 2015, the same date thetelephone conversation occurred, Alberta Health Services
sent two letters to the Appellants, onefor each property. Each letter stated:
The above noted premises was observed tobe boarded from the exterior on June 4, 2015. During a phone
conversation with Carmen Pervez on June5, 2015 it was confirmed that the premises was vacant.
The premises are to remain secure andvacant until an inspection of the entire premises is conducted by an
Executive Officer and permission grantedfor re-occupancy. The premises, in its entirety must meet the
Alberta Housing Regulation and MinimumHousing and Health Standards prior tore-occupancy.
Please be advised that during renovationsand repairs the building must be kept secure:
• Board and/or secure must be completedat the end of each work day (reasonable hours of work are
between 7 am and 9 pm; additional timeperiods MAY be considered.)
• Access must be supervised by the ownerand/or property manager (please provide name of the
designated individual(s) who will be incharge of the project.
• Any mechanical work must be undertakenby qualified contractors (heating, plumbing and electrical)
whose certificates and/or registrationare verifiable
• Interim inspections may take place todetermine occupancy and/or work in progress.
Methods and materials used to secure thebuilding are subject to requirements of the City of Edmonton for
appearance and maintenance.
The Board finds these letters set thestage for future interactions between the parties with
respect to the two properties. Althoughthe phone call and letters did not preclude Alberta
Health Services from inspecting theproperties prior to the renovations being completed or
from issuing orders, it would have beenreasonable for the Appellant to believe that any
inspection that occurred prior tocompletion of the renovations would relate to occupancy or
the progress of the renovations.
The Executive Officer's testimony wasunclear about whether she was aware of the letters prior
to issuing the Orders. They had beensent by the other Executive Officer who had the
conversation with one of the Appellantshowever, she did consult with a superior and other
Executive Health Officers prior toissuing the Orders.
The phone call and the letters were oneof the circumstances that ought to have been
considered and properly weighted whenthe Executive Officer was exercising her professional
discretion and deciding if Orders shouldbe issued and if so, whether the property ought to be
declared unfit for human habitation. Asthere was an agreement between the parties that the
properties would be inspected prior tothem being re-occupied, it was not reasonable for
orders issued prior to the renovationsbeing completed to declare the properties unfit for
human habitation. It would have beenreasonable, if an order was issued, to set out work that
was required to be completed during therenovation process but not to declare the properties
unfit for human habitation.
K. SUMMARY
While the Executive Officer had legislative authority to issue Orders, the Board finds that declaring the properties unfit for human habitation and not providing context for the contraventions set out in the Orders, was not a reasonable exercise of professional discretion in the circumstances. Having considered all of the evidence and the submissions of the parties, the Board has decided to vary the Orders as follows:
1. in the title section of the Orders remove "UNFIT FOR HUMAN HABITATION";
2. add "AND WHEREAS the premises are undergoing renovations and were built prior to 1970;" after the first paragraph of each Order; and
3. remove "AND WHERAS, by virtue of the foregoing, the above noted premises are hereby declared Unfit for Human Habitation".
Julia Jones, Chair
Also Sitting:
Ron Everard, Vice Chair
Linda Cloutier, Member
Linda Klein, Member
