The Care Centre loses appeal over building issues; fines reduced

The Care Centre at 510 Second Street East in Cornwall, Ont. (Newswatch Group/Bill Kingston, File)

CORNWALL – The owners of The Care Centre have lost their appeal against the City of Cornwall over several building code issues but also received a drastic reduction in the fines they were facing.

In his written decision Tuesday (Nov. 3), Judge Charles Anderson ruled that Matthew Cinnamon, Dan Orr and their numbered corporation did require a building permit to add a wall and change a sink inside the Second Street East facility after buying the building in late 2014.

He also agreed with the trial judge that changing the building’s primary operation from a hospital to a retirement residence with some areas rented out required a change of use designation with the city.

“A building permit was required to change the use. The trial judge was correct in finding a change of use. It is not within the purview of the builder to determine unilaterally whether or not the change in use or physical structure warranted a building permit,” Anderson said.

Also in his decision, Anderson dismissed allegations of bias from the trial judge, a challenge on the statute of limitations on prosecuting by the chief building official and some procedural and evidence-based issues during the trial.

When it comes to the penalty, Anderson did side with the appellants. He agreed that the fines initially imposed were “overly harsh” and that the “fines ought to be reduced.”

Anderson said the “total fines cannot be increased simply because of the form of the business organization employed,” noting that the individuals and the corporation are “inexorably linked.”

The prosecution had argued that the cost of the building ($2 million) should be a “significant factor” in determining the fines. But Anderson wrote that, at trial, it was noted the building is “heavily mortgaged” and the accused “were struggling from the outset. It is clear this is not a sophisticated corporation, nor are the two individual accused sophisticated operators,” Anderson wrote.

The cumulative fines for both men and the corporation are $3,000 with three months to pay.

Originally facing fines around $25,000, their paralegal John Robinson says “this is certainly a benefit, no question about it. They operate from month to month and it is a struggle, so it’s certainly a positive thing.”

Speaking with Cornwall Newswatch Thursday afternoon, Robinson said he couldn’t speak for his clients as Cinnamon and Orr had just received the decision and were still reviewing it.

“I think it’s a win-win,” Robinson said from a legal standpoint. He says this case shows that people can challenge a decision by the court. “We all have a right to challenge initial decisions. We all have a right to follow what we believe might be a mistake. Once we take advantage of that right, follow through, and appeal it, as in this case and the decision is rendered. You’ve been allowed the opportunity to be heard.”

Robinson also noted that the judge never indicated that their appeal was frivolous. “It’s clear to me that, despite his decision to dismiss the appeal, in the body of his decision it’s clear to me there was some support, not just for these two guys who are trying to make a go of a pretty difficult undertaking, but for anyone out there who’s trying to develop something…his position is to encourage them. I would take that as the real take-home message.”

Cinnamon and Orr still need to get the building permit by Jan. 15, 2021.

Robinson believes the decision on appeal puts the issue between The Care Centre and the City of Cornwall to bed.

Judge Anderson also did not award legal costs, requested by the City of Cornwall for a delay by the appellants, saying as “the general rule” in case law, costs are not awarded to either side in Provincial Offences Act cases.

“Big opportunities continues to be there and they (Cinnamon and Orr) are just going to have to work with the city to figure out how to develop it,” Robinson said, noting there is 200,000 square feet including a building that has sat empty for roughly six years.