Ontario Court of Justice

Date: 2019-10-23

Court File No.: Newmarket 4961-999-14-1127T

In the Matter of an Appeal

Under s. 116(1)(b) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

HER MAJESTY THE QUEEN ex rel THE REGIONAL MUNICIPALITY OF YORK

Appellant

— AND —

ROBERT IRWIN

Respondent

Before: Justice David S. Rose

Heard on: October 4, 2019

Reasons for Judgment released on: October 23, 2019

Counsel:

• Mr. C. Bendick, for the Appellant
• Messrs. Chang & Borean, for the Respondent

On appeal from acquittals by Justice of the Peace T. Rotondi on February 14, 2019.

D. Rose J.:

Overview

[1] The Regional Municipality of York appeals the acquittals by Her Worship on several Building Code Act S.O. 1992 c.23 charges. All charges arose out of six Orders to Comply issued by a building inspector on April 29, 2013 (The "2013 Orders"). The Prosecution alleged that Mr. Irwin had completed construction on his property without the required permits. The charges related to a property at 5781 Highway 7 in the City of Vaughan. Each Order had a different number: 13-256OB; 13-257OB; 13-258OB; 13-259OB; 13-260OB; and 13-261OB. Each of the Counts on the Information was identically worded save and except for the particular number of each Order, namely fail to comply with the order dated April 29, 2013 contrary to s. 36(1) of the Building Code Act. The time of the delict on each count was 19 September 2013. The defence successfully argued that Mr. Irwin was entitled to be acquitted because the 2013 Orders were the very same as Orders issued in 1996. The Regional Municipality of York appeals those acquittals on the basis of an error of law.

[2] What is apparent in the reasons for judgment is that the trial Justice found that Mr. Irwin had a reasonable belief that he had obtained the necessary permits to answer the Orders to Comply from 1996. Her Worship used that finding to support a range of defences: laches; estoppel; officially induced error. She also used that finding to acquit on the merits of the case. For the following reasons I find that Her Worship fell into error, and the acquittals must be quashed.

The Trial

[3] The trial started in October of 2015, when the prosecution called Mr. Giuliano Carota, a building inspector for the City of Vaughan. He visited the property at 5781 Highway 7 on April 17, 2013. He described the property as a marina retail business, and the buildings on the property with their additions and alterations. He checked the municipality files and found no permits for the alternations and additions. He then issued six Orders to Comply (the 2013 Orders). The 2013 Orders are attached as Exhibit A. Each has a compliance deadline of May 17, 2013. Each Order is directed at a different structure on the property.

[4] When cross-examination started defence counsel almost immediately began to question Mr. Giuliano about historical building permits for the property. The prosecution immediately objected on the basis that such a defence was not available. The prosecution took the position that any previous Orders were irrelevant because the 2013 Orders were valid, unless appealed to the Superior Court using s. 25 of the Building Code Act. The prosecution argued before the trial Justice that any denial of the validity of the 2013 Orders, by reference to earlier Orders, was a collateral attack which was prohibited in law.

[5] Although the record is not entirely clear why, after the objection was made the defence asked no further questions of Mr. Giuliano. The prosecution closed its case and Mr. Irwin began testifying in his own defence. One of his first answers was that he thought that the 2013 Orders were "a joke", because he had dealt with these Orders back in 1996 or 1997.

[6] When the trial continued in July of 2016 Mr. Irwin had retained new counsel, who brought an adjournment application because of disclosure issues. After lengthy submissions Her Worship ordered the prosecution to disclose the 1996 Orders to comply, how they were dealt with, and whatever information is available that connects the 2013 Orders to comply to the 1996 Orders to comply.

Appeal of Disclosure Ruling

[7] The Prosecution brought an Application for Judicial Review of Her Worship's disclosure ruling. That Application was heard in October of 2016. In February of 2017 Mr. Justice Edwards quashed the disclosure order, and ordered the trial to continue, see York (Regional Municipality) v. Irwin 2017 ONSC 1262. Justice Edwards' order was then overturned by the Court of Appeal in November of 2017, see York (Municipality) v. Irwin 2017 ONCA 906. The Court of Appeal held that Her Worship's disclosure ruling was not something that could be reviewed by certiorari under s. 141(4) of the Provincial Offences Act R.S.O. 1990, c. P. 33 (hereafter POA).

[8] When the trial continued in June of 2018 the 1996 Orders were before the Court. Those Orders bore the following numbers: C-950260; C-960279; C-960281; C-96-0282; C-96-0283; C-960284; C-960285. Those Orders have the same map attached as the 2013 Orders, and are clearly directed at the same physical structures on the property at 5781 Highway #7 as the 2013 Orders.

The Language of the Orders

[9] Each of the 2013 Orders was directed at a different structure on the property. Each has similar language for what is required in order to bring the property into compliance. Each reads, "Obtain the required building permit or remove the unauthorized construction and restore the building/property to its former state." Notably, the 2013 Orders clearly stipulate that they replace the 1996 Orders. For instance, in Order 13-256OB, the document clearly says, "This order replaces 96-285OB."

Trial Continuation

[10] Mr. Irwin testified in his own defence. He described how the buildings which are the subject of the 2013 Orders were added going back to 1973. He got a building permit sometime in 1977, and confirmed receiving the 1996 Orders. He gave them to his architect and lawyer. They created a site plan for the whole property. Nonetheless he was charged with failing to comply with the 1996 Orders. After negotiations between the municipality and Mr. Irwin's lawyer and architect were completed those charges, i.e. the ones laid in 1996 were withdrawn.

[11] The facts which surrounded the 1996 Orders and non-compliance charges were not very precise because the supporting documents from that period were kept with Mr. Irwin's lawyer. That included building permits which he believed answered the 1996 Orders to Comply. He had given them to his lawyer Scott Sievert who kept them at his law office. Tragically, Mr. Sievert's law office burned down in 1997 or 1998 killing him. The documents which might have shown compliance with the 1996 Orders were destroyed in the fire. Mr. Irwin's evidence was that he did not have to comply with the 2013 Orders, because he had complied with the 1996 Orders and those were in substance exactly the same as the 2013 Orders. As his lawyer said to the presiding Justice,

It's clear he didn't take any steps to Comply with the Orders to Comply. His defence from day one when I was involved, the theory of our case was put forward. That is that there was nothing to do because the permits were issued or permits were not required. That's the defence.

[12] The defence therefore admitted that it did not nothing to comply with the 2013 Orders to Comply. Mr. Irwin took the position that he didn't have to because the 2013 orders had been complied with in 1996 when he complied with those Orders. The defence therefore took the position that it didn't have to take additional steps in 2013 to comply with the 2013 Orders beyond what it had done 17 years previously.

[13] In her reasons for judgment Her Worship found that Mr. Irwin's defence was not a collateral attack on the 2013 Orders because they were identical to the 1996 Orders. She found that the renovations and alterations referred to in the 2013 Orders were completed sometime prior to 1996. Ultimately she found that "…there may have been building permits issued", because the 1996 applications for permits contain markers which suggest that permits were issued. As she found, "…I must find in favour of the defence, that there is some evidence that building permits may have been issued." She then acquitted Mr. Irwin of all counts.

[14] The Appellant argues that Her Worship fell into reversible error because she permitted the defence to collaterally attack the 2013 Orders and then, having accepted that the defence raised a reasonable doubt, acquitted. The municipality goes on to argue that once Mr. Irwin admitted to doing nothing to comply with the 2013 Orders after he received them, there is no defence of due diligence. Mr. Irwin resists by arguing that Her Worship correctly applied the law. He adds that he had a defence of due diligence because he believed he had already complied with 1996 Orders and therefore complied with the 2013 Orders.

Law

[15] This case proceeded by way of Information, under Part III of the Provincial Offences Act. Accordingly, the appellate powers of this Court are determined by Part VII of the POA. Section 121 of the POA governs appeals against acquittals. Section 121 does not articulate the test required for the Appellant to succeed. I take the test to be that the Appellant must show an error such that the verdict would not have been the same but for the error, see R. v. Power, [1994] 1 S.C.R. 601.

Collateral Attack

[16] Much of this Appeal turns on the application of the collateral attack rule. A collateral attack is one made in proceedings other than those whose specific object is the reversal, variation or nullification of an order, see R. v. Wilson, [1983] 2 S.C.R. 594, or more recently Mississauga (City) v. Ashley Developments [2017] O.J. No. 4231 (Bovard J.). The law in this area is settled. As Misener J. said in R. v. Martingrove Properties [2005] O.J. No. 6952,

Where a regulatory regime such as The Building Code contains a mechanism to appeal against an order made under it, a party who disputes such an order must avail itself of that procedure if it takes issue with the validity of the order. It cannot remain silent until the enforcement procedure is initiated. This is the rule against collateral attack which is set out by the Supreme Court of Canada in R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706

[17] The Building Code Act permits a right to appeal the substance of an Order to comply, or whether the Order should have been made in the first place. The Legislature has deemed the Superior Court to be the appropriate venue for such hearings. Section 25 of the Act says,

25(1) Appeal to court A person who considers themself aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under this Act (except a decision under subsection 8(3) not to issue a conditional permit) may appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made.

25(2) Extension of time A judge to whom an appeal is made may, upon such conditions as the judge considers appropriate, extend the time for making the appeal before or after the time set out in subsection (1), if the judge is satisfied that there is reasonable grounds for the appeal and for applying for the extension.

25(3) Effect of appeal If an appeal is made under this section in respect of a matter in which a question is pending before the Building Code Commission, the proceeding before the Commission is terminated.

25(4) Powers of judge On an appeal, a judge may affirm or rescind the order or decision and take any other action that the judge considers the chief building official, registered code agency or inspector ought to take in accordance with this Act and the regulations and, for those purposes, the judge may substitute his or her opinion for that of the official, agency or inspector.

This is consistent with the Superior Court's traditional jurisdiction to judicially review administrative decisions.

[18] The Superior Court was therefore the venue for challenging the validity, or terms, of the 2013 Orders. That Court has broad powers of review to rescind or vary such Orders. What is also clear from the trial record is that Mr. Irwin did not appeal the 2013 Orders to the Superior Court.

[19] The defence position at trial was plainly a collateral attack on the 2013 Orders. Mr. Irwin argued that those Orders were of no force or effect because of steps taken some 17 years previously. He remained silent on the topic of the validity of the 2013 Orders until enforcement proceedings began. That is a collateral attack.

[20] I pause in the analysis to observe that the 2013 Orders, on their face, replaced the 1996 Orders. Each of the 2013 Orders stipulates that on its face. The Respondent therefore took the position at trial that he complied with an Order which had been replaced. By acceding to that argument Her Worship erred in law. Mr. Irwin had an appeal route available to him to seek judicial review of the validity of the 2013 Orders or their scope. He did not do that. By acceding to the defence that Mr. Irwin did not have to comply with the 2013 Orders because of actions taken in 1996 she fell into reversible error. That finding must be quashed.

Due Diligence

[21] The law on the applicability and scope of the defence of due diligence is also settled. I can do no better than quote Bovard J. in Mississauga (City) v. Ashley Developments (supra), at para. 86:

Due diligence has two branches. The defendant is only required to satisfy one of them. The first branch, applicable herein, requires proof that the defendant took all reasonable care to avoid the commission of the prohibited act. The second branch requires proof that the defendant reasonable believed in a mistaken set of facts which, if true, would render the act or omission innocent: R. Sault Sainte Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.); R. v. Pontes (1995), 100 C.C.C. (3d) 353 (S.C.C.).

The defendant is required to prove the defence of due diligence on a balance of probabilities. See R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 (S.C.C.); R. v. Ellis-Don Ltd., [1992] 1 S.C.R. 840 (S.C.C.)

[22] I agree with the Appellant that Mr. Irwin does not meet the first branch of the test, viz reasonable care to avoid the prohibited act. He maintained throughout the trial that he did nothing positive to comply with the 2013 Orders. Nor can he take the benefit of the second part of the test, namely belief in a mistaken set of facts. This is because, once Mr. Irwin accepted the 2013 Orders, his purported mistaken set of facts was compliance with dated orders which had been replaced. His position, as I understand it, is akin to saying that he mistakenly believed that he didn't have to comply with the 2013 Orders. Viewed at one way that would be a mistake of law, which is not a defence. Moreover, Mr. Irwin's mistaken belief that he complied with the 2013 Orders by virtue of his actions in 1996 or 1997 is no different than his defence of collateral attack. It is not a defence in law.

[23] For these reasons there is no defence of due diligence on the facts of this case.

Other Issues

[24] Her Worship considered other arguments in her reasons for judgment: Estoppel; Laches, and Officially Induced Error. Oral argument on this Appeal was isolated to the issues of Collateral Attack and Due Diligence. Since Her Worship made rulings on the additional issues, I will consider them.

Estoppel

[25] Her Worship found that there may have been building permits issued 17 years ago, and that charges which were laid at that time were withdrawn. She properly found that there was no reason for the withdrawal of the charges in evidence. She went on to find that Mr. Irwin was entitled to rely on the withdrawal of charges, and that he was at a disadvantage because the City of Vaughan waited 17 years to take enforcement action. That, she found "…leads to an inference that nothing needs to be done."

[26] In Immeubles Jacques Robitaille inc. v. Québec (City), 2014 SCC 34, [2014] 1 S.C.R. 784 the Supreme Court reviewed the applicability of the doctrine of estoppel in the context of municipal zoning by-laws. An estoppel in public law is no different than in contract law insofar as it has two elements: a representation and subsequent detrimental reliance, see Immeubles Jacques Robitailles at para. 19. Notably, the Court in Immeubles Jacques Robitailles was careful to describe limitations. For instance, estoppel in public law must yield to an overriding public interest and may not be used to frustrate an express legislative provision, see Immeubles Jacques Robitailles at para. 20. Estoppel in public law is therefore limited in application. It may be available to force a public authority to exercise its discretion in favour of a citizen but it would not be available to defend a regulatory offence, Immeubles Jacques Robitailles at para. 20.

[27] Insofar as Her Worship based the acquittals on the doctrine of estoppel, she erred. No such defence was available.

Laches

[28] Her Worship also went on to find that the 17 year delay in taking enforcement proceedings against Mr. Irwin "...leads to an inference that nothing needs to be done." She found guidance in applying the doctrine of laches from Justice Howden's ruling from Oro-Medonte (Township) v. Warkentin 2013 ONSC 1416.

[29] The doctrine of laches has no application to regulatory offence prosecutions. It is a civil remedy flowing from the Superior Court's inheritance of the work of the former courts of equity. As with any equitable remedy, it has no application to provincial offence prosecutions. Inferior Courts have no jurisdiction to wade into the realm of equitable remedies, see Courts of Justice Act S.O. 1996, c.21 s. 96(3). No further analysis is required.

Officially Induced Error

[30] The trial Justice also considered the defence of officially induced error. She found that the inaction by the City of Vaughan supports the defence that the delay incurred Mr. Irwin to be of the opinion that no action was required. This, she found, amounted to officially induced error.

[31] The defence of officially induced error contains several components. They are: (1) the accused must have considered the legal consequences of its actions and sought legal advice, (2) the legal advice obtained must have been given by an appropriate official, (3) the legal advice was erroneous, (4) the persons receiving the advice relied on it, and (5) the reliance was reasonable, see Maitland Valley Conservation Authority v. Cranbrook Swine Inc. (2003), 64 O.R. (3d) 417.

[32] What is lacking in her Worship's finding is anything about the first of the four elements. Viewed charitably, Mr. Irwin got legal advice in 1996 about the Orders to Comply issued then. That is as far as his defence, or excuse, goes, see Maitland Valley Conservation Authority (Supra) at para. 68. Her Worship made no clear findings about the other components of the defence.

[33] Having reviewed the trial record, I am of the view that Mr. Irwin failed to establish an officially induced error. Bearing in mind that he was charged with failing to comply with the 2013 Orders, not the 1996 Orders, there is no evidence that he sought legal advice by an appropriate official, or that the legal advice was erroneous. His position was that he didn't have to comply with the 2013 Orders because of something that happened some 17 years previously. In order to take the benefit of an officially induced error he would have to prove that he was given advice about compliance with the 2013 Orders to satisfy the first three components of the test. There is no such evidence in the trial record.

[34] For these reasons her Worship's finding that Mr. Irwin took the benefit of the defence of officially induced error cannot stand and must be reversed.

Result – Conviction Appeal

[35] In sum, the acquittals are overturned. In submissions the Respondent agreed that this appeal was all or nothing. Either the acquittals were entitled to deference and the appeal should be denied on all charges or all the acquittals were to be overturned. This is a fair position.

[36] Mr. Irwin's position that he did not comply with the 2013 Orders was not a defence in law, but rather an inculpatory admission which yields convictions on all counts.

Sentence

[37] In submissions the Municipality said that if it prevailed on the appeal against acquittal then it was seeking convictions on all counts and a fine of between $2000 and $3000 on each count. Mr. Irwin has no previous record. The Respondent suggested a suspended sentence.

[38] I am of the view that Mr. Irwin's moral culpability for this is at the lower end of the scale. The fact that the structures which are the subject of the 2013 Orders have been in existence for many years with the knowledge of the Municipality leads me to conclude that the Municipality did not see them as posing a danger to the public using Mr. Irwin's Marina. Given that, his lack of prior infractions, and his long standing history running a business in the area I would impose fines at the lower end of the scale, which I fix as $100 per count. The total fines will therefore be $600.00.

[39] I am grateful for the assistance of counsel in this matter.

Released: October 23, 2019

Signed: Justice Rose