The skeletal development structure on the corner of Church Street and Kingston Road West in Ajax may now be gone as per a court order.
The Ontario Superior Court of Justice has granted an application by the Town of Ajax to demolish the development, dismissing the objections of the land owner, First Avenue Properties.
The development – FiveNineNine – was proposed to be an four-storey apartment building, boasting 60 open‐concept suites located above street level retail, according to the developer’s website.
The developer acknowledged that the above-grade construction on the property was carried out without a permit. However, it resisted an order for demolition, submitting that the better course of action was to dismiss the application and allow it to continue working toward obtaining the requisite building permit.
“First Avenue’s conduct must not be rewarded. An order for demolition is the only just and appropriate remedy in the circumstances,” said Justice A Casullo, in her decision, delivered on September 18.
Since November 2021, the partially constructed building – an entire ground floor – has sat unfinished. The property remains an active construction site. There are fences erected around the building’s perimeter to prevent ingress by the public, but the structure sits exposed to the elements.
In a statement released yesterday, the town said it will continue to monitor the matter – including any possible appeal – in consultation with its legal counsel, and remains committed to ensuring that all development within its boundaries adheres to applicable laws and standards.
Durham Post could not get a response from Woodbridge-based First Avenue after office hours.
The Dispute Timeline
Court records show that historically, the property was used as an automotive sales and repair facility. This resulted in soil contamination. The property was purchased by 1940475 Ontario Inc in 2015, which with First Avenue, intended to build a four-storey mixed-use building – called FiveNineNine – on the property.
Over the next five-plus years, First Avenue prepared and submitted to the town multiple site plan applications for the property, including detailed design drawings and environmental reports. Various consultants were retained to prepare requisite materials. The existing structures were removed.
On April 30, 2021, the town conditionally approved First Avenue’s site plan application, and a Site Plan Agreement (SPA) was executed on July 26, 2021, pursuant to which First Avenue paid a performance guarantee of $353,685, and $109,700 as “cash in lieu of parkland” fees.
The SPA contained a number of conditions which First Avenue was required to clear before the town issued a final approval, which was required before the development could proceed.
Condition 31 of the SPA required First Avenue to file a Record of Site Condition (RSC) with the Ministry of the Environment, Conservation and Parks (MECP) prior to the issuance of any above-ground building permit.
On September 14, 2021, the town and First Avenue entered into a Conditional Building Permit Agreement (CBPA), allowing First Avenue to construct footings, foundations, and site services.
First Avenue agreed to obtain an RSC by April 15, 2022.
Development Exceeds Scope of Permit
By October 13, 2021, the town became aware that the development was exceeding the scope of the Conditional Permit. On this date, a town building inspector attended the property and observed construction of above-grade elements of the development. 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 acknowledged these two facts to be true, court records said.
The town immediately issued an Order to Comply, requiring First Avenue to immediately cease working on all above-grade elements. First Avenue was also to deliver various inspection and testing reports as required by the town’s Building Code.
A second attendance on October 27, 2021, revealed that First Avenue had disregarded the Order to Comply and continued with the above-grade construction.
On October 27, 2021, the town issued a Stop Work Order.
On November 3, 2021, the town’s legal counsel wrote to First Avenue’s project manager, enclosing a copy of both the Order to Comply and the Stop Work Order. First Avenue was advised that if construction did not immediately cease, the town would seek injunctive relief from the courts.
A third attendance on November 17, 2021, revealed that construction of the exterior walls of the development were now near completion. This was despite the lack of a building permit, the lack of the mandatory inspections required by the town’s Building Code, and the three warnings from the town.
Construction continued until at least November 2022, when a crane was observed to be erecting structural steel.
Court Approached
On November 25, 2021, this court issued a mandatory injunction, on consent, prohibiting First Avenue from carrying on any further work at the property until a building permit had been issued. The order also held that if the town deemed any of the work that had been completed without a building permit to be unsafe, it could authorize First Avenue, in writing, to complete whatever additional work was necessary to bring the structure into a safe condition.
First Avenue did not abide by the mandatory injunction. Instead, it asked Mr. Kwan, its structural engineer, to assess the above-grade work that had been completed at the Property. Mr. Kwan opined that certain walls would present a safety concern if they were left unattended for too long. Mr. Kwan recommended that the walls and steel frame be secured with temporary braces or, alternatively, that core slabs be installed on the second floor to act as a structural support for the walls.
First Avenue chose the latter approach and advised the town it was going to install the core slabs, by letter dated November 26, 2021. That same day, First Avenue directed its construction crew to install the core slabs, without the town’s prior written authorization. The town takes the position that it did not receive a copy of Mr. Kwan’s letter until January 28, 2022, two months after the core slabs had been installed.
2021 to 2025
On November 25, 2021, First Avenue delivered an RSC Submission, prepared by its engineer, Van Voorst Engineering Ltd., to the MECP. After review, the MECP advised that the submissions contained significant deficiencies and further field work was required.
The town advised First Avenue that it must obtain an RSC confirming that the property had been fully remediated, in a manner acceptable to the MECP, by September 19, 2024. In the event First Avenue was unable to do so, the town would return its application and seek a demolition order for the above-grade construction at the property.
Hearing nothing further, the town contacted the MECP in April 2024 to inquire whether First Avenue had taken any steps since receiving the MECP’s comments. MECP advised that it had not received any substantive updates from First Avenue.
In February 2025, DS delivered a Tier 3 Risk Assessment to the MECP. DS estimated it would take another 12-18 months to complete the risk assessment process. Until that process was complete, First Avenue would not be in a position to file an RSC.
Current Status of the Development
The deadline for filing the RSC passed three years ago. It is now closing in on the end of 2025.
There has been no material change in circumstances since the Order that make it necessary or equitable to demolish the above-grade construction that was built without a permit.
The decision can be accessed at the following link: https://www.canlii.org/en/on/onsc/doc/2025/2025onsc5325/2025onsc5325.html.