DATE: 20011105 DOCKET: M27805, M27806, M27807

COURT OF APPEAL FOR ONTARIO

FELDMAN J.A. (In Chambers)

B E T W E E N:

MAITLAND VALLEY CONSERVATION AUTHORITY

Appellant

• and -

CRANBROOK SWINE INC., LANDMARK BUILDERS LTD. and CHARLES D. TERPSTRA

Respondents

Darrell N. Hawreliak for the appellant Maitland Valley Conservation Authority David S. Thompson for the respondents Cranbrook Swine and Charles D. Terpstra Paul Trudell for the respondent Landmark Builders Jack D. Coop for the Intervenor Attorney General for Ontario

HEARD: October 29, 2001

Motion for leave to appeal under s. 131 of the Provincial Offences Act from the judgment of Justice R.G.E. Hunter dated August 30, 2001 at Goderich, Ontario.

FELDMAN J.A.:

[1] Both the Conservation Authority and the Attorney General for Ontario as intervenor, move for an order granting leave to appeal the decision of the Provincial Court judge pursuant to s. 131 of the Provincial Offences Act which provides:

131(1) A defendant or the prosecutor or the Attorney General by way of intervention may appeal from the judgment of the court to the Court of Appeal, with leave of a judge of the Court of Appeal on special grounds, upon any question of law alone or as to sentence.

(2) No leave to appeal shall be granted under subsection (1) unless the judge of the Court of Appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.

(3) No appeal or review lies from a decision on a motion for leave to appeal under subsection (1).

[2] The criteria to be met are: 1) special grounds; 2) a question of law alone; 3) in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.

[3] The case involved a prosecution of the three respondents by the applicant under s. 3 of Reg. 22/91 of the Conservation Authorities Act. Sections 3 and 4 provide:

3. Subject to section 4, no person shall,

(a) construct any building or permit any building to be constructed in or on a pond or swamp or in any area susceptible to flooding during a regional storm;

(b) place or dump fill of any kind or permit fill to be placed or dumped in any area described in the Schedule whether the fill is already located in or upon the area or brought to or on the area from some other place; or

(c) straighten, change, divert or interfere in any way with the existing channel of a river, lake, creek, stream or watercourse.

4. Subject to the Ontario Water Resources Act or to any private interest, the Authority may permit in writing the construction of any building or the placing or dumping of fill or the straightening, changing, diverting or interfering with the existing channel of a river, lake, creek, stream or watercourse to which section 3 applies if, in the opinion of the Authority, the site of the building or the placing or dumping of fill or the straightening, changing, diverting or interfering with the existing channel will not affect the control of flooding or pollution or the conservation of land.

[4] The respondents obtained a building permit from the Township of Morris for the construction of a liquid manure storage tank on certain lands under the jurisdiction of the applicant Conservation Authority. When the Authority learned of the construction, it determined that the building was located on a swamp and therefore the construction contravened s.3 of the regulation as no written permission to build had been obtained.

[5] At the trial before the Justice of the Peace, the respondents moved for a non-suit at the close of the prosecution case on the basis that the issuance of the building permit is a complete defence to the charge. The reason is based on the wording of s. 8(2)(a) of the Building Code Act. Section 8(2) provides:

s. 8(2) The chief building official shall issue a permit under subsection (1) unless,

(a) the proposed building, construction or demolition will contravene this Act or the building code or any other applicable law;

(b) the applicant is a builder or vendor as defined in the Ontario New Home Warranties Plan Act and is not registered under that Act;

(c) the application for it is incomplete; or

(d) any fees due are unpaid.

[6] The phrase "applicable law" is a defined term in O. Reg. 403/97 to the Act (s. 1.1.3.2.) which means:

Applicable Law means, for the purposes of Section 8 of the Act, any general or special Act, and all regulations and by-laws, enacted thereunder, which prohibit the proposed construction or demolition of the building unless the Act, regulation or by-law is complied with.

[7] The argument of the respondents was that the Conservation Authority did not apply under s. 25 of the Building Code Act for revocation of the building permit. Therefore the respondents acted lawfully by building in accordance with a permit, the effect of which is that the construction did not contravene “any other applicable law” including the Conservation Authority Act.

[8] On the non-suit motion, the Justice of the Peace denied this argument and held that the building permit does not prevent other forms of redress by the applicant against the respondents. However, he went on to grant the non-suit on the basis that the prosecution had not proved that the construction occurred on a swamp. The respondent appealed to the Provincial Court. Justice Hunter agreed with the Conservation Authority that it had led sufficient evidence of the swamp to make out a prima facie case and defeat the non-suit motion. However, he went on to dismiss the appeal on the basis that the respondents could successfully assert the defense of officially induced error as they were entitled to rely on the building permit.

[9] The applicants seek leave to appeal this decision. The question of law raised by this decision is the legal effect of a building permit and whether it can act as a defence to prosecution for breach of another Act on the basis of officially induced error, estoppel, due diligence or as a matter of law based on the wording of the Building Code Act.

[10] I am satisfied that leave ought to be granted. The issue raised is a question of law. The special circumstances, the public interest and the due administration of justice criteria are met. There are many statutes whose enforcement may be affected by the ruling. It is “essential”, as that term has been interpreted in the case law of this court (R. v. Zakarow (1990), 1990 CanLII 6991 (ON CA), 74 O.R. (2d) 621; R. v. Blackbird Holdings Ltd. (1991), 6 C.E.L.R.(N.S.) 116; R. v. Krukowski (1991), 1991 CanLII 7305 (ON CA), 2 O.R. (3d) 155), that the court consider the question of law in the context of its ramifications, including the meaning and effect of s. 8(2)(a) of the Building Code Act and the obligations regarding compliance with other Acts, of every building permit applicant, and of every Chief Building Official when building permits are issued by municipalities.

[11] The respondents say that the Provincial Court judge found that there was no evidence other than that they had acted throughout in good faith and therefore the court should not allow the prosecution to proceed any further. However, the question of law raised here, is, as it must be, one that transcends the particular parties and has broad public significance. Furthermore, the respondents were never called on to present a defence, so that the evidentiary issues cannot yet be fully assessed.

[12] In the result, leave to appeal is granted based on the issues of law set out in these reasons. If there is any difficulty regarding the formulation of the issues on which leave is granted, I may be spoken to. Order to go accordingly.

“K.N. Feldman J.A.”

RELEASED: NOVEMBER 5, 2001