Court File and Parties

COURT FILE NO.: CV-16-127694 DATE: 20170223

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Regional Municipality of York Applicant – and – Robert Irwin Respondent

Counsel: Chris Bendick, for the Applicant Gerard Borean, for the Respondent

HEARD: October 6, 2016

REASONS FOR DECISION

EDWARDS J. :

[1] The Applicant, The Regional Municipality of York (York), seeks an order of mandamus with certiorari in aid quashing a disclosure order made by Justice of the Peace Rotondi, and an order requiring a justice of the peace to continue with the trial of the charges noted in Information No. 14-0027.

[2] The disclosure order in question arose out of a request by counsel for the Respondent to compel disclosure of previous charges against the Respondent. In her decision, the justice of the peace ordered the prosecution to provide disclosure of all information concerning orders to comply in 1995 and 1996.

[3] The issue that this Court is called upon is to decide whether or not the justice of the peace committed a jurisdictional error, or an error in law ordering the prosecution to provide disclosure of information relating to matters which pre-dated the issuance of the 2013 orders to comply, which were the orders before the justice of the peace in the context of those orders never having been appealed in the Superior Court of Justice, pursuant to section 24 of the Building Code Act.

[4] In addition to the jurisdictional error referred to in paragraph three above, this Court is also called upon to decide whether or not the justice of the peace committed a jurisdictional error, or an error of law in ordering the prosecution to provide disclose of information that was within the possession or knowledge of the Respondent.

The Facts

[5] The Respondent is the owner of property municipally known as 5781 Highway 7 in the City of Vaughan (The Property).

[6] The Respondent conducts a retail marine business on the property. Located on the property are various buildings and structures used in the Respondent’s marina retail business, including the sale, repair and storage of boats.

[7] On June 7, 1976 the Respondent, in his capacity as the Director of Robert Irwin Investments Limited (Irwin Investments), entered into an agreement with the City of Vaughan to amend By-law 2523 to permit an existing and a proposed commercial building on the property (The Site Plan Agreement).

[8] Since 1976, the City of Vaughan has issued a number of building permits in respect of the various construction and renovation projects on the property.

[9] The City of Vaughan issued the Respondent various orders to comply with the Building Code Act in 1995, and again in 1996 (the 1995 and 1996 Orders).

[10] Subsequent to the issuance of the 1995 and 1996 orders, the Respondent was charged with failing to comply with the 1995 orders and for building without a permit. These charges were to come before the Court on December 13, 1996. At that time the Respondent’s lawyer, Scott Sievert (who I am now advised is deceased), confirmed in writing with the City of Vaughan Law Department that the 1996 charges would be withdrawn, and there was no need for either the Respondent or Mr. Sievert to attend in Court for the scheduled hearing.

[11] On April 17, 2013, a building inspector with the City of Vaughan attended the property and made certain observations with respect to additions and alterations to buildings on the property.

[12] As a result of the inspection the Vaughan building inspector issued six orders to comply to the Respondent on April 29, 2013. The orders required the Respondent to either obtain a building permit for the construction or to remove them. The compliance deadline for each order was May 17, 2013. Each order had a provision noting that the order was subject to a statutory right of appeal to the Superior Court of Justice, pursuant to Section 25 of the Building Code Act.

[13] The Respondent did not appeal any of the orders to comply to the Superior Court of Justice.

[14] On February 24, 2014, the Respondent was charged with six separate counts of failing to comply with an order to comply.

[15] The trial of the charges commenced on October 1, 2015 before Justice of the Peace Rotondi.

[16] When the trial commenced, Giuliano Carota testified for the City of Vaughan. Mr. Carota was a building inspector, who stated that the additions and alterations for the property had been constructed without a building permit. Mr. Carota was cross-examined with respect to whether he had examined the City’s records and how far back those records went. He was also cross-examined with respect to previous orders to comply that had been issued in relation to the property. Objection was taken to this line of questioning on the basis of relevance, and on the basis that such line of questioning was an attempt to collaterally attack the orders to comply which were before the Court.

[17] The Respondent testified at the trial on October 1, 2015. Amongst other things, he testified that the orders before the Court were identical to those which had been issued to him on October 23, 1996. The Respondent further testified that he had complied with all of the 1996 work orders. The Respondent sought to introduce into evidence the 1996 orders. The prosecution objected on the basis of relevance. Justice of the Peace Rotondi made a Ruling, the effect of which was to preclude the admission of any evidence prior to the issuance of the orders before the Court.

[18] With her Ruling, the Respondent sought an adjournment because his counsel was not prepared. The request for an adjournment was granted, with a return date of December 23, 2015.

[19] The Respondent retained new counsel who was unavailable on December 23, 2015, and the trial was adjourned ultimately to July 21, 2016.

[20] Prior to the resumption of the trial, counsel for the Respondent wrote to the prosecutor requesting further disclosure of prior charges and prosecutions against the Respondent. The basis for this disclosure request was a letter from the Respondent’s then counsel in 1996, which states that the charges in relation to the 1996 orders were to be withdrawn. A request for this disclosure was refused by the prosecution.

[21] When the trial resumed on July 21, 2016, counsel for the Respondent brought a motion for disclosure and the adjournment of the trial. The motion was granted and Justice of the Peace Rotondi ordered the prosecution to disclose all information in relation to the 1996 orders to comply.

Position of the Parties

[22] Counsel for York repeats the position that he took before the justice of the peace, that the disclosure sought is nothing more than a collateral attack and, as such, the order made by the justice of the peace was final in nature, which rendered it reviewable on the basis of an error in law and, as such, reviewable pursuant to Section 141(4) of the Provincial Offences Act which allows for an application for relief in the nature of certiorari.

[23] Counsel for the Respondent argues that the order made by the justice of the peace is nothing more than a disclosure order, and that if the disclosure order was improperly made the remedy lies at the completion of the trial by way of an appeal, not by way of an application for certiorari.

Analysis

[24] The argument asserted on behalf of the Respondent is simple and has some considerable appeal. If the order made by the justice of the peace is nothing more than an order in the nature of disclosure and if the 1996 orders were withdrawn, it provides a defence based on an argument that he has complied with the 1996 orders.

[25] The argument made on behalf of the Respondent is also an appealing one, in that an application like the one before this Court is one that should only be granted in the rarest of cases. Furthermore, the argument also has some substantial appeal in that if the justice of the peace was in error, then the appropriate remedy might be for the Applicant to wait until the completion of trial and to thereafter appeal the decision of the justice of the peace (see R. v. Arcand, 73 OR (3d) 758 at para. 14).

[26] While the Respondent’s argument does have some considerable appeal, I agree with the position asserted on behalf of the Applicant that the doctrine of collateral attack does apply to Building Code Act matters (see R. v. Martingrove Properties Ltd., [2015] O.J. No. 6952 at para. 31).

[27] The position asserted on behalf of the Respondent is that the charges presently before the Court are no different than the prior charges in 1996. Where this argument fails lies in the fact that the charges do not relate to the failure to obtain a building permit, but rather relate to the failure to comply with the order to comply. (See Regional Municipality of York v. Martingrove Properties Ltd., [2011] O.J. No. 4992 (Ont. C.A.)).

[28] The orders in 1996 may very well apply to the same buildings on the property and require the same action on the part of the Respondent. The orders in 1996 and the orders in 2013, however, have different compliance deadlines. They therefore constitute separate and distinct offences. The Respondent was entitled to appeal the 2013 orders to the Superior Court of Justice, pursuant to Section 25 of the Building Code Act, 1992. This is specifically provided for at the bottom of the order to comply. The Respondent chose not to appeal the orders to comply. With these facts in mind, the following comments of Misener J. in R. v. Martingrove Properties Ltd., supra, at paragraphs 49 through 51 are apropos to the case before this Court:

An Order to Comply is an administrative order issued under the Building Code Act. That Act has a mechanism to appeal orders made under it. Indeed the order in question advises MPL of the right of appeal on its face: “An order may be appealed to The Superior Court of Justice. It may also be appealed to the Building Code Commission concerning the sufficiency of compliance with the technical requirements of The Building Code”.

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.

In this case, MPL did not avail itself of its right to appeal against Order 80-070 to the Superior Court of Justice. Nor for that matter did it ever appeal to the Superior Court of Justice against any of the previous Orders made to compel it to obtain a building permit. Having taken that course of action, MPL cannot collaterally attack the order at the penal stage.

[29] In this case, the fact that the Respondent was charged in 1996 and had those charges withdrawn is, in my view, of no relevance. The Applicant was entitled to issue more than one order to comply in relation to the structures on the property, and each time the Respondent failed to comply – subject to its right to appeal the order to comply to the Superior Court of Justice, the Respondent allegedly would then have committed a distinct offence.

[30] The Respondent chose in this case to either ignore, or consciously decide not to appeal, the orders to comply pursuant to Section 25 of the Building Code Act, 1992. If such an appeal had been pursued by the Respondent, any issues that might have arisen as a result of the withdrawal of the charges in 1996 may very well have been a relevant issue for the Superior Court of Justice to consider on such an appeal. In the absence of the Respondent having exercised his rights of appeal, in my view the Respondent cannot now attack the validity of the order to comply by way of a defence, having failed to avail himself of the appeal mechanisms available under the Act. As such, the order of the justice of the peace requiring disclosure was, in my view, a collateral attack on the order to comply. An order of mandamus with certiorari in aid shall issue quashing the disclosure order made by Justice of the Peace Rotondi, and an order shall issue requiring the continuance of the trial of this matter before Justice of the Peace Rotondi.

Justice M.L. Edwards

Released: February 23, 2017

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: The Regional Municipality of York Applicant – and – Robert Irwin Respondent REASONS FOR DECISION Justice M.L. Edwards

Released: February 23, 2017