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City appealing lawsuit over airport hangar

Judge: Oshawa used "coercion," "egregious conduct" in fighting case

Oshawa Municipal Airport

Justice of the Peace Maxine Coopersmith slammed Oshawa’s legal department in her written decision following a lawsuit between the city and a numbered company looking to build a hangar at the Oshawa Executive Airport. Coopersmith says the city’s tactics amounted to “coercion” and that the “city’s own self- serving interests appear to have overtaken the broad public interest.”

By Joel Wittnebel/The Oshawa Express

An attempt to obtain building permit fees at the Oshawa Executive Airport will see the city pay out more than $125,000 in legal costs following actions one justice deems a “flagrant departure” from normal legal behaviour.

In a ruling handed down by Justice of the Peace Maxine Coopersmith on Feb. 16, she states that the city’s legal tactics amounted to “coercion” and a “marked and unacceptable departure from the reasonable standards” when they attempted to order one hangar owner to obtain a building permit for an addition to his unit, despite evidence that jurisdiction for the aeronautics industry falls to the federal government.

The case stems from a 2013 incident where the city ordered Philip Sciuk and his Ontario numbered company to obtain a building permit for an addition to his hangar, despite the fact that 27 of the hangar units as part of the Hangarminiums development were constructed without building permits. According to Justice Coopersmith, the request for the permit came at a time when the company would have a hard time saying no.

“It was only after development was well underway, when the the Developer applied for condominium status and a stop-work order would have had a devastating financial effect on the Developer that the City demanded such a permit be obtained,” Justice Coopersmith writes.

With that said, the developer went ahead and purchased the permit, with the understanding that the issue would end there. However, the case continued.

“The city enticed the Defendant to obtain a building permit from the City in an attempt to resolve the matters without the need for litigation and then subsequently reneged on its word by not withdrawing the charges,” the ruling states.

“The city’s egregious conduct was further heightened when it then attempted to use these resolution talks at trial against the Defendant.”

These actions were in “stark contrast,” Justice Coopersmith states, to what the Region of Durham had done. In its case, the region had refunded development charges amounting to $101,952 the company had paid without knowing that the airport is federal jurisdiction.

In analyzing the city’s behaviour, which she says amount to “coercion,” Justice Coopersmith states that, “the city’s own self-serving interests appear to have overtaken the broad public interest.”

Those “self-serving interests” are the economic development potential of the airport.

“The city is no ordinary litigant in these matters,” the judgement states. “It has more at stake in these proceedings than prosecuting in the public interest, as future development of the Oshawa Airport complex brings with it the potential for further significant revenues from building permits.”

On top of that, Justice Coopersmith found that city witnesses in the trial were “often evasive,” “less than forthcoming” and even “self-contradicting,” with the city failing to provide appropriate information when it was somehow unable to produce a copy of its airport operations manual from 2013.

And while the judge was mindful that ordering the city to pay substantial legal costs would see money coming from the “public purse”, she believed a message needed to be sent.

“The amount of the award of costs against the City cannot be merely nominal or symbolic, but must serve to send a clear, necessary and meaningful message to the prosecution that its conduct has exhibited a marked and unacceptable departure from the usual and reasonable standards of prosecution,” the ruling states.

The final award is in the amount of $126,108. The city is appealing the decision, and for that reason declined to comment for this story.

“The decision is currently under appeal. Accordingly, it is not appropriate to comment at this time,” states Jag Sharma, the city manager, in an emailed statement.