COURT OF APPEAL FOR ONTARIO
van Rensburg J.A. (Motions Judge)
BETWEEN
Her Majesty the Queen ex Rel.
The Regional Municipality of York
Applicant (Responding Party)
and
Robert Irwin
Respondent (Moving Party)
Gerard C. Borean, for the moving party
Chris G. Bendick, for the responding party
Heard and released orally: January 21, 2020
REASONS FOR DECISION
1This is a motion for leave to appeal under s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”).
2The moving party Robert Irwin was charged in 2013 with various offences under Part III of the POA, for failure to comply with six building inspector’s orders issued that year under the Building Code Act, 1992, S.O. 1992, c. 23, in connection with construction at his commercial property. The orders required in each case that he “obtain the required building permit or remove the unauthorized construction and restore the building/property to its former use.” In his defence, Mr. Irwin testified that he had confronted essentially the same building inspector’s orders and charges in 1996, 17 years earlier, and that the charges had been withdrawn after he had applied for and obtained the building permits.
3Mr. Irwin was acquitted at first instance by a Justice of the Peace who provided detailed reasons for her decision. Among other things, she rejected the Regional Municipality’s argument that Mr. Irwin’s defence amounted to a collateral attack on the building inspector’s orders which had not been appealed under s. 25 of the Building Code Act. The Justice of the Peace made findings in Mr. Irwin’s favour with respect to other defences, including estoppel and officially-induced error. She concluded her reasons by stating that, based on the evidence, the prosecution had not proven its case beyond a reasonable doubt that Mr. Irwin was not issued the building permits.
4The Regional Municipality appealed the acquittal to a justice of the Ontario Court of Justice. The OCJ justice, among other things, accepted the collateral attack argument and substituted a conviction on all the charges, fining Mr. Irwin $600.
5Mr. Irwin seeks leave to appeal to this court.
6At the centre of the proposed appeal is the interpretation and application of the doctrine of collateral attack.
7Mr. Irwin says that he was not challenging the 2013 orders in his defence to the prosecution but was raising the fact of the previous orders and stating that there was nothing further to be done. Moreover, he says that the conclusion of the Justice of the Peace that the prosecution had not proven that he had failed to obtain the orders was fully supported by the evidence, and there was no basis at law for the OCJ justice to interfere.
8Mr. Irwin’s evidence at trial was that his copies of the building permits were in the possession of his lawyer whose office was destroyed in a fire that took the lawyer’s life. The Regional Municipality had no record of the building permits, although there was evidence that Mr. Irwin applied for permits, and that building permit file numbers may have been assigned. A 1998 internal memo from the City of Vaughan confirmed that a site plan submitted for approval had gone missing.
9I am satisfied that the test for leave to appeal under s. 131 of the POA is met.
10The appeal raises a question of law respecting the interpretation and application of the doctrine of collateral attack. While a second appeal is exceptional in provincial offences matters, in this case, the first appeal substituted a conviction for an acquittal. Mr. Irwin seeks to restore the acquittal, relying on alleged errors of law. There are special grounds, and in the particular circumstances of this case, it is essential for the due administration of justice that leave to appeal be granted. Despite Mr. Bendick’s able argument, I do not accept that the implications of the conviction are not significant to Mr. Irwin, or that there is no broader public interest. While Mr. Irwin was fined $600, the effect of the decision on the last appeal is that he remains out of compliance with the 2013 orders and may face further potential prosecution or enforcement actions because of his continuing breach. As for the broader public interest, there is the precedential value of the OCJ justice’s decision holding, in effect, that the doctrine of collateral attack applies where a party’s defence is that they have complied with an order that they have not appealed.
11Leave to appeal is therefore granted.
12Mr. Irwin seeks costs of his successful motion. The Regional Municipality questions the authority of the court to award costs in these proceedings, and in any event opposes an award of costs. The issue of costs of this motion is best reserved to the panel hearing the appeal and I so order.
“K. van Rensburg J.A.”