Dave Rogers
The Ottawa Citizen
Saturday, April 27, 2002
Sunny Bad'aan offered the NCC $20,000 in landscaping to keep his 'dream house.'
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A judge has ordered Ottawa builder and entrepreneur Sonny Bad'aan to demolish his nearly completed $500,000 home because he built it too close to the the National Capital Commission's Ottawa River Parkway.
Mr. Bad'aan, 57, and his wife Jo-Anne Bad'aan Bélanger bought the property on Lochaber Avenue near Westboro Beach on March 30, 2001, intending to build a dream home overlooking the Ottawa River for themselves and their three children.
After working as a builder for more than 30 years, Mr. Bad'aan knew he had to hire a lawyer to make sure he had clear title to the property and a surveyor so that the house would be correctly situated on the the lot.
He hired an architect to design the house.
Mr. Bad'aan claims the Ottawa law firm Honey/MacMillan failed to notice a restrictive covenant requiring the rear of the house be at least nine metres from the National Capital Commission property line on the parkway.
On Aug. 28, 2001 the NCC told him to tear down the 5,000-square-foot house because it was too close to its property line. The commission applied to the Ontario Superior Court of Justice for an order to have the house demolished.
In a ruling released this week, Justice Dan Chilcott said the main wall of the house is only 4.8 metres from the NCC fence, not the required nine metres and ordered the demolition of the house. Mr. Bad'aan said he believed there was nothing wrong with building the house so close to the parkway because the normal rear yard distance between a house and a neighbour's property is three metres.
"I accept that through no fault of their own the respondents (the Bad'aans) did not know of the restrictive covenant when they started building the house and I am sure that they did not purposely intend to violate the restrictive covenant," Judge Chilcott said in his ruling.
"However, if someone made an error who was retained by them, the respondents are ultimately accountable for that error."
Judge Chilcott said the house would be "detrimental to the public interest" and even if the front wall of the house was moved it would still be visible from the parkway and the NCC bike path.
"The court is not persuaded that if the structure is allowed to stay that the injury would be negligible," Judge Chilcott said. "Its impact is significant in my view.
"I am fully cognizant of the hardship and mental distress of the respondents as well as the great cost that will follow if the application is granted and that has given me great concern in arriving at my decision."
Mr. Bad'aan, who had spent $500,000 on the house by the time he stopped construction was in despair about the court order yesterday, but said he will demolish the house within two weeks.
"I can't believe they will waste $500,000 out of my pocket plus the land which cost $240,000," Mr. Bad'aan said. "It would cost about another quarter million to complete -- everything is done except the brick outside and the marble floors and carpets.
"We offered the NCC $20,000 for landscaping, legal fees and a penalty of $60,000 to show it is a mistake and I am ready to do something to correct it. This was to be my dream home and it fell apart because of (an) error. I knew nothing about the covenant."
Mr. Bad'aan said it is a waste to demolish a $500,000 house because the NCC wants the building to be four metres farther from its property line. He said the law firm is covered by insurance, but it could take years for the courts to hear his claim.
"I have never seen anything like this in 35 years in construction," Mr. Bad'aan said. "I am disappointed because I thought we could settle the problem with the NCC out of court.
"This was my dream. I wanted to build something out of the ordinary with a view of the Ottawa River. I will never build anywhere near NCC land again, not with such an arrogant organization. I will tear down the house and go somewhere else."
Mr. Bad'aan considered moving the house closer to the front of his pie-shaped property, but discovered the design of the front of the house would have to change for it to fit.
Moving the house to another lot would be too costly because of its size. The house would have to be cut in sections before the move or hydro lines would have to be taken down to provide clearance for the building.
Al O'Brien, a lawyer representing Eric Honey, Mr. Bad'aan's real estate lawyer, said he had been notified that Mr. Bad'aan will seek damages.
"There is a real issue to be determined by the court about what the parties knew and when they knew it," Mr. O'Brien said. "He has a right to commence an action against Mr. Honey and say what he believes happened. Then a defence will be advanced on behalf of Mr. Honey."
NCC spokeswoman Laurie Peters said the commission had to challenge the location of Mr. Bad'aan's house because allowing it to remain where it is would set a precedent that would encourage others to encroach upon NCC property.
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