Maitland Valley Conservation Authority v. Cranbrook Swine Inc.

Maitland Valley Conservation Authority v. Cranbrook Swine Inc. [Indexed as: Maitland Valley Conservation Authority v. Cranbrook Swine Inc.]

64 O.R. (3d) 417

[2003] O.J. No. 1433

Docket Nos. C37250 and C37262

Court of Appeal for Ontario

Abella, MacPherson and Simmons JJ.A.

April 28, 2003

Environmental law -- Offences -- Defences -- Officially induced error -- Company granted building permit for construction of liquid manure storage tank -- Company subsequently charged with violating Conservation Authorities Act by building tank in wetlands -- Company bringing motion for non-suit at close of Crown's case and calling no evidence -- Defence of officially induced error not available to company -- Company failing to establish that it relied on advice of chief building official as confirming compliance with Act -- Conservation Authorities Act, R.S.O. 1990, c. C.27.

C Inc. was in the business of hog farming. It hired L Ltd. to construct a liquid manure storage tank. C Inc. and L Ltd. obtained building permits from the local chief building official for the construction. They were subsequently charged with violating s. 3(a) of Ontario Regulation 22/91 under the Conservation Authorities Act by constructing a building "in or on a pond or swamp or in any area susceptible to flooding during a regional storm". The defendants moved for a non-suit at trial, arguing that the issuance of a building permit under the Building Code Act, 1992, S.O. 1992, c. 23 provided a defence to the charges and that the area in which the storage tank was being constructed was not a "swamp" or "wetland". The justice of the peace granted the motion on the grounds that the prosecution had failed to establish that the specific area on which the tank was constructed was a "swamp". On appeal, that finding was overturned, but the defendants were acquitted on the grounds that they were entitled to rely on the defence of officially induced error. The Conservation Authority appealed.

Held, the appeal should be allowed.

Per MacPherson J.A.: There are five elements of the defence of officially induced error: (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. The summary conviction appeal judge dealt with the fourth element, reliance, by finding that there was no suggestion that the defendants acted in other than a reasonable manner, and that they acted in good faith. However, good faith, and therefore reliance, cannot be inferred from the absence of evidence of bad faith. The defendants brought their motion for a non-suit at the close of the Crown's case and led no evidence. There was no basis for concluding that their application to the chief building official was made in good faith. It was particularly inappropriate to infer good faith and reliance on the facts of this case, given that the defendants sought permission to construct a liquid pig manure storage tank 160 feet in diameter and 12 feet deep in an area of rural Ontario where there are obvious wetlands environmental concerns. The defendants were in the best position, and had the legal obligation, to satisfy the court that they acted in good faith and relied on the building permit to establish compliance with the Conservation Authorities Act. They did not do so.

Per Simmons J.A. (concurring): The defendants did not satisfy any of the elements of the defence of officially induced error. In order to satisfy the first three elements of the defence, the defendants had to establish three things that were [page418] not addressed by the evidence at trial. They had to demonstrate that they considered whether it was illegal to build a liquid manure holding tank in a swamp; that they obtained advice from an appropriate official concerning that specific issue; and that, as a result of the advice that they obtained, they believed it was not illegal to build a liquid manure holding tank in a swamp. If the defendants never considered whether there were legal consequences of building a liquid manure tank in a swamp and did not obtain advice from an appropriate official, which they understood related to that issue, they demonstrated ignorance, not mistake, and they were not entitled to the benefit of the defence. In the absence of evidence at trial dealing with those specific issues, there was no basis for holding that the first three elements of the defence were satisfied. Before raising the defence of officially induced error, an accused must first establish that he made an error that constitutes an error of law. In this case, no evidence was adduced capable of supporting an inference that the defendants contravened the Conservation Authorities Act regulation as the result of an error of law. Therefore, there was no air of reality to the defence of officially induced error.

Since the defence of officially induced error functions as an excuse for what is otherwise culpable conduct, where the defence is made out, the appropriate remedy is to enter a judicial stay, not an acquittal, thus ensuring that it will be successful in only the rarest of cases.

Per Abella J.A. (dissenting): The facts of this case supported a defence of officially induced error. Section 8(1) of the Building Code Act provides that no person shall construct or demolish a building unless a permit has been issued by the chief building official. Section 8(2)(a) of the Building Code Act provides that the chief building official shall issue a permit unless the proposed building or construction will contravene the Act or the building code "or any other applicable law". "Applicable law" is defined in O. Reg. 403/97 to the Building Code Act as "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". The Conservation Authorities Act and the construction regulations enacted under it are "applicable law" within the meaning of s. 8(2) of the Building Code Act. The granting of a permit is, on its face, a demonstration by the chief building official that, among other statutes, the relevant provisions of the Conservation Authorities Act have been complied with. It was reasonable for the defendants to have concluded that since the permit was issued by the person with the statutory authority to do so if all applicable laws were complied with, no applicable law, including the Conservation Authorities Act, was being contravened.

APPEAL from a judgment affirming a dismissal of charges under the Conservation Authorities Act, R.S.O. 1990, c. C.27.

R. v. Hawkins, 1995 85 (SCC), [1995] 4 S.C.R. 55, 25 O.R. (3d) 824n, 129 D.L.R. (4th) 510, 189 N.R. 1, 32 C.R.R. (2d) 189, 102 C.C.C. (3d) 97, 43 C.R. (4th) 137 (sub nom. R. v. Jorgensen, R. v. Ronish), consd Other cases referred to R. v. Cancoil Thermal Corporation and Parkinson (1986), 1986 154 (ON CA), 14 O.A.C. 225, 23 C.R.R. 257, 11 C.C.E.L. 219, 27 C.C.C. (3d) 295, 52 C.R. (3d) 188 (C.A.) (sub nom. R. v. Cancoil Thermal Corp.); R. v. Savard, [2001] O.J. No. 3350 (QL) (C.J.) Statutes referred to Building Code Act, 1992, S.O. 1992, c. 23, ss. 8, 25 Conservation Authorities Act, R.S.O. 1990, c. C.27, s. 20 Environmental Assessment Act, R.S.O. 1990, c. E.18 Environmental Protection Act, R.S.O. 1990, c. E.19 [page419] Fire Marshals Act, R.S.O. 1990, c. F.17 Municipal Act, R.S.O. 1990, c. M.45 Ontario Municipal Board Act, R.S.O. 1990, c. O.28 Ontario Water Resources Act, R.S.O. 1990, c. O.40 Planning Act, R.S.O. 1990, c. P.13 Provincial Offences Act, R.S.O. 1990, c. P.33, s. 131 Rules and regulations referred to O. Reg. 22/91 ("Conservation Authorities Act"), s. 3(a) O. Reg. 403/97 ("Building Code Act"), s. 1.1.3.2 "applicable law" Authorities referred to Barton, P.G., "Officially Induced Error as a Criminal Defence: A Preliminary Look" (1979-80) 22 C.L.Q. 314

Darrell N. Hawreliak, for appellant. David S. Thompson and Laura Tripp, for respondents Cranbrook Swine Inc. and Charles D. Terpstra. Paul J. Trudell, for respondent Landmark Builders Inc. Jack Coop, for appellant by intervention.

[1] ABELLA J.A. (dissenting): -- The issue in this appeal is whether someone who has been granted a building permit under the Building Code Act, 1992, S.O. 1992, c. 23, can rely on the defence of officially induced error when the resulting construction is alleged to violate the Conservation Authorities Act, R.S.O. 1990, c. C.27.

Background

[2] Cranbrook Swine Inc. ("Cranbrook") is in the business of hog farming. Charles D. Terpstra is a director and officer of the company. In 1999, he hired Landmark Builders Ltd. ("Landmark"), a construction company, to be the contractor for the design and construction of two barns and a liquid manure storage tank.

[3] Cranbrook and Landmark obtained building permits for the construction from the chief building official of the Township of Morris on August 25, 1999.

[4] The construction of the manure storage tank came to the attention of an employee of the Maitland Valley Conservation Authority (the "Authority"). The employee, concerned about the location of the tank, contacted the chief building official of the Township of Morris to arrange to visit the construction site. [page420]

[5] His visit persuaded him that the construction might be a violation of the Conservation Authorities Act. As a result, the Authority consulted its hydrologist. The resulting memo, dated September 14, 1999, concluded that "the placement of a liquid manure facility at the location currently under construction should not be considered as acceptable under the Authority regulation policies." This led the Authority, on September 15, 1999, to accept a recommendation from its general manager that a violation notice regarding the construction of the tank be issued, on the grounds that the tank was located within a water resource area or wetland.

[6] The notice, sent by the Authority on September 16, 1999 informed Cranbrook, Terpstra and Landmark that the construction was a violation of the Conservation Authorities Act because it was taking place in a wetland area without prior approval from the Authority.

[7] On the same day that the Authority sent the notice of violation, a stop work order was issued by the Township of Morris. No construction has taken place at the site since September 16, 1999.

[8] On November 26, 1999, charges were brought by the Authority against Cranbrook, Terpstra and Landmark. The offence alleged was a violation of s. 3(a) of Ontario Regulation 22/91 of the Conservation Act which provides that, absent permission from the Maitland Valley Conservation Authority, no person shall

. . . 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[.]

[9] At the trial before a justice of the peace, the defence led no evidence, instead bringing three motions for non-suit. The first motion was that the prosecution had failed to present a prima facie case against Mr. Terpstra, personally. The argument on the second motion was that the issuance of a building permit under the Building Code Act provided a defence to the charges under the Conservation Authorities Act. The third motion was that the area in which the storage tank was being constructed was not a "swamp" or "wetland". There was no evidence of bad faith on the part of the owner or contractor, nor was there any evidence that the building permit was invalid.

[10] The justice of the peace allowed the third motion on the grounds that the prosecution had failed to establish that the specific area on which the tank was constructed was a "swamp" within the meaning of s. 3(a) of the construction regulation under [page421] the Conservation Authorities Act. Although he was satisfied that the area adjacent to the construction site was a swamp, he concluded that there was no evidence that the actual site "was or had been a swamp", finding that "it is supposition that because the area adjacent to the cleared area was swamp, that therefore . . . the site where the tank was . . . had been swamp".

[11] On appeal, Hunter J. overturned the finding that the construction site was not a swamp, but acquitted the owner and contractor on the grounds that they were entitled to rely, primarily, on the defence of officially induced error. He summarized his conclusions as follows:

There is no suggestion whatsoever that the Respondents at any time acted in other than a reasonable manner; they acted in good faith. They went to the authorities and obtained a building permit to construct the holding tank. After construction commenced, it came to the notice of the conservation authorities that construction was possibly taking place in the area of a swamp and was therefore prohibited. Tests were done and this supported the beliefs of the conservation authority and as a result these charges were brought.

I am satisfied that the Respondents are entitled to rely on the defence of officially induced error. Having taken the proper steps, there is no case law that I am aware of or that has been brought to my attention that there was an obligation on them, having obtained the necessary documentation, to go to any other authorities to check to see whether or not it was permissible to construct the holding tank. They did all that was required of them, as I say, in good faith. There is nothing to suggest that the building permit was issued other than in good faith. They were entitled to rely on that building permit. The conservation authorities cannot now expect to find favour in this court when charges are laid against the Respondents for breach of the Conservation Act (sic.). At the risk of repetition, the Respondents did all they had to do and they cannot now be held liable nor responsible for a possible error committed by the issuing authorities of the building permit.

(Emphasis added)

[12] The Authority, and the Attorney General for Ontario as intervenor, applied for and were granted leave to appeal this decision pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33, which states:

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). [page422]

Analysis

[13] The only issue in this appeal is whether the respondents were entitled to rely on the defences of officially induced error, estoppel or due diligence in responding to the strict liability offence with which they were charged. In my view, the facts in this case support a defence of officially induced error. Given the role of the chief building official and the significance of a building permit under the Building Code Act, it was open to the trial judge, notwithstanding that the defence called no evidence, to conclude on a balance of probabilities that the owner reasonably relied on the issuance of the building permit as an assurance of the legality of the construction of the storage tank.

[14] There was no evidence to contradict a finding of reasonable reliance. On the contrary, there was evidence to support an inference that it is more likely than not that the respondents were unaware of any problems from the perspective of the Conservation Authorities Act. There was uncertainty over whether these were, in fact, "wetlands", and evidence that the local practice was for a building permit applicant to apply to the Conservation Authority only when directed to do so by the chief building official.

[15] The methodology for ascertaining whether a proposed construction is in accordance with the Building Code Act, is to apply for a permit. Section 8(11) of the Building Code Act states:

8(11) No person shall construct or demolish a building or cause a building to be constructed or demolished except in accordance with this Act and the building code.

[16] It would have been redundant for the owner to be required, in the absence of evidence to the contrary, to state the obvious, namely, that he applied for a permit in order to meet the applicable requirements before he started any construction, and that he relied on the issuance of that permit to conclude that he was entitled, by law, to build.

[17] This case turns, in my view, on the wording of ss. 8(1) and (2)(a) of the Building Code Act, which provide:

8(1) No person shall construct or demolish a building or cause a building to be constructed or demolished unless a permit has been issued therefor by the chief building official.

(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;

(Emphasis added) [page423]

[18] The phrase "applicable law" is defined [in] O. Reg. 403/ 97 to the Building Code Act (s. 1.1.3.2) as follows:

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.

[19] These provisions, in combination, stand for the proposition that no building or construction can take place in Ontario without a building permit, and that no such permit will be issued by a local chief building official if the proposed construction will contravene any applicable law.

[20] The appellants acknowledge that the Conservation Authorities Act and the construction regulations enacted under it are "applicable law" within the meaning of s. 8(2) of the Building Code Act. That makes compliance with its provisions part of what the chief building official is required to consider in deciding whether to grant a building permit. The granting of the permit is, therefore, on its face, a determination by the chief building official that, among other statutes, the relevant provisions of the Conservation Authorities Act have been complied with.

[21] In this case, the owner was required by s. 8(1) of the Building Code Act to get a permit prior to building the storage tank. Under the scheme of the Act, anyone applying for a building permit under the Building Code Act can reasonably expect to have the permit refused if the proposed construction violates any applicable law; conversely, it seems to me, an applicant can reasonably assume that if the permit has been issued, the chief building official is of the view that no such contravention exists.

[22] The owner and contractor in this case sought permission from the person with the statutory authority to grant it if all applicable laws are complied with -- the chief building official of the Township of Morris. It was therefore reasonable for the recipients of what was conceded at the trial to be a valid building permit, to rely on the assumption that since the permit was issued, no applicable law, including the Conservation Authorities Act, was being contravened.

[23] These circumstances make the defence of "officially induced error" available. This defence received appellate endorsement from Lacourcière J.A. in R. v. Cancoil Thermal Corporation and Parkinson (1986), 11 C.C.E.L. 219, 27 C.C.C. (3d) 295 (Ont. C.A.) at pp. 303-04 C.C.C., p. 231 C.C.E.L., who explained it as follows:

The defence of "officially induced error" is available as a defence to an alleged violation of a regulatory statute where an accused has reasonably [page424] relied upon the erroneous legal opinion or advice of an official who is responsible for the administration or enforcement of the particular law. In order for the accused to successfully raise this defence, he must show that he relied on the erroneous legal opinion of the official and that his reliance was reasonable. The reasonableness will depend upon several factors including the efforts he made to ascertain the proper law, the complexity or obscurity of the law, the position of the official who gave the advice, and the clarity, definitiveness and reasonableness of the advice given.

I agree with the following statement made by Professor Barton [in "Officially Induced Error as a Criminal Defence: A Preliminary Look" (1979-80), 22 Crim. L.Q. 314], at p. 331:

Where the advice is given by an official who has the job of administering the particular statute, and where the actor relies on this advice and commits what is in fact an offence, even if the agency cannot be estopped does it follow that the actor should not be excused? To do so is not to condone an illegality or say that the agency is estopped into a position of illegality, but to recognize that the advice was illegal but excuse the actor because he acted reasonably and does not deserve punishment.

(Emphasis added)

[24] In R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55, 129 D.L.R. (4th) 510, at p. 66 S.C.R., p. 517 D.L.R., Lamer C.J.C. justifies this defence as an exception to the principle that ignorance of the law does not excuse the commission of a criminal offence, in the following way:

The number of laws under which any person in Canada may incur criminal liability is nothing short of astounding. While knowledge of the law is to be encouraged, it is certainly reasonable for someone to assume he knows the law after consulting a representative of the state acting in a capacity which makes him expert on that particular subject.

[25] Before the defence can succeed, the recipients of the building permit must have considered the legal consequences of their actions, that is, whether their conduct in constructing the tank might be illegal and, as a result, sought advice.

[26] The most obvious reflection of an intention to ascertain whether building the tank was legally permissible, was to apply for a building permit. Because, as s. 8(11) states, it is illegal to construct or demolish a building except in accordance with the Building Code Act, and because, under s. 8(1), that requires the issuance of a building permit from the local chief building official, seeking a building permit from the chief building official is therefore seeking advice about whether the proposed construction is legal. A rejection means that the construction is not legally permissible. It follows that the issuance of a valid building permit is prima facie evidence of a positive response to the "advice" sought.

[27] The question then is whether the advice came from an appropriate official. The appellants argue that the only appropriate [page425] official who can give advice about whether any construction in the Township of Morris violates the Conservation Authorities Act, is someone in the Authority, not the chief building official.

[28] This proposition undermines what appears to be the legislative scheme for ensuring the necessary compliance with all relevant laws before any construction takes place in Ontario.

[29] The Building Code Act sets standards for all construction and building projects in Ontario. The scheme it supervises for the issuance of building permits is a mandatory one. The local chief building official is appointed, along with the necessary inspectors, by the council of each municipality, the body entrusted by s. 3 of the Building Code Act with enforcement responsibility.

[30] There are, the appellant acknowledges, at least nine statutes affecting the use of land in Ontario, including regulations for environmental protection -- the Building Code Act, the Conservation Authorities Act, the Environmental Assessment Act, R.S.O. 1990, c. E.18, the Environmental Protection Act, R.S.O. 1990, c. E.19, the Fire Marshals Act, R.S.O. 1990, c. F.17, the Municipal Act, R.S.O. 1990, c. M.45, the Ontario Municipal Board Act, R.S.O. 1990, c. O.28, the Ontario Water Resources Act, R.S.O. 1990, c. O.40, and the Planning Act, R.S.O. 1990, c. P.13.

[31] Each of these statutes sets out standards which may affect the decision to permit construction on a given parcel of land. But no construction can take place in Ontario unless the local chief building official issues a building permit.

[32] The application form for a building permit states that "Sufficient information shall be submitted with each application to enable the chief building official to determine whether or not the proposed work will conform with the Building Code Act and regulations thereunder and any other applicable law" (emphasis added).

[33] This obliges the chief building official to ensure that he or she has all relevant information from the applicant to determine whether, among other things, environmental concerns under relevant legislation have been satisfied. And if, based on the information provided in good faith, an error has been made, his or her decision can be reviewed under the Building Code Act. But until the issuance of a permit is challenged, as it was in this case by the Authority, individuals acting in good faith should reasonably be able to rely on it for the assumption that they are in compliance with their legal obligations.

[34] It would be, it seems to me, an untenable proposition to suggest that, absent a separate and specific confirmation in connection with each of the approximately nine applicable statutes, [page426] the holder of a building permit cannot reasonably proceed on the assumption that a chief building official has complied with his or her statutory duty. This duty is discharged by the chief building official ensuring that the proposed construction is in accordance with all applicable laws.

[35] Part of this responsibility includes directing an applicant for a building permit to any additional authority for prior approvals, where necessary. In fact, there was evidence from Phil Beard, an employee at the Authority for 21 years and the general manager and secretary-treasurer during the relevant time period, that, in the normal course, a builder or property owner would only make an application for a construction permit to the Conservation Authority after having been directed or advised to do so by the chief building official. During re- examination, the following exchange took place regarding the local practice followed by landowners and builders in making an application for a construction permit:

Mr. Beard: They're usually directed to get our permit first, by the building official except in the municipality of North Perth, we have an experimental program going, where they can apply jointly for permission under our regulation and under the Building Code.

Prosecutor: I'm confused by this. I just want [to] make sure that I understand. If an application for a permit is made to the Conservation Authority under the construction regulation, usually what happens is the applicant is referred by the Municipality's building department to the Authority to get their permission first?

Mr. Beard: That's correct . . . If they go there first. Yes that's right.

Prosecutor: Right. So, the most applications to the Authority for permission to construct are made directly by the landowner or contractor. Is that normal?

Mr. Beard: Yes, that's correct. The landowner or agent, yes.

(Emphasis added)

[36] What that means is that while it would have been open to the owner and contractor to get advice about whether the tank was permissible directly from the Authority or any of the other agencies with jurisdiction over land use in Ontario, it was, given the language and scheme of s. 8 of the Building Code Act, at least as reasonable for them to seek centralized advice from the chief building official of Morris Township. He was, after all, the only official in a position to grant or withhold the permit without which the construction would have been illegal. He was, therefore, an official whose duty it was, prior to making a decision, to determine whether [page427] the proposed construction constituted a potential violation of the Conservation Authorities Act requiring consideration by the Authority. Even if the Authority had approved the construction, however, it would still have been open to the chief building official to refuse the permit if he felt there was a contravention of the laws of another constituent statute in the regulatory constellation.

[37] The chief building official in Morris Township, in other words, was an appropriate official on whom to rely about whether the construction would comply with all applicable laws, since, if it did not, no permit would have been issued. The reasonableness of Cranbrook and Landmark's reliance on the building permit flowed not only from their statutory entitlement to rely on the advice given by the chief building official in the form of that permit, but also from their statutory requirement to do so.

[38] In addition, there was evidence that there was no mechanism in place during the relevant time period to inform property owners directly that their lands may fall under the jurisdiction of the Authority. According to the testimony of Mr. Beard and a former employee of the Authority, the only mechanisms in Morris Township for providing information on property affected by the Construction Regulations during the relevant time period were a responsive solicitor's inquiry service and a general mailing sent to real estate agents, lawyers and chief building officials. Mr. Beard testified that in the early eighties, when the first Construction Regulation was approved, the Authority worked with municipalities and planning departments to prepare maps for them that outlined all of the areas that were regulated by it. The maps and policies were put together along with explanatory notes in all the by- laws that specifically mentioned the Authority and its regulations. The municipalities were obliged to send a copy of every zoning by-law to every ratepayer in the municipality, so they could see how their own properties had been zoned and would also receive information about how the Authority's regulations affected their property.

[39] These efforts were discontinued as a result of reduced provincial funding in 1995 and 1996.

[40] This does not take away from the local Conservation Authority's responsibility for enforcing the significant legislative mandate of protecting the natural resources of the watershed within defined territorial jurisdictions throughout Ontario. Rather, it points to the clear statutory direction in the Building Code Act that the local chief building official should also play a significant role.

[41] Nor do I mean to suggest that in such a complex and interrelated regulatory scheme, a building permit can never be issued [page428] in error. The Building Code Act, in fact, anticipates this possibility by providing a remedy through, for example, the revocation of a permit under s. 8(10) of the Building Code Act. The relevant portions of s. 8(10) state:

8(10) Subject to section 25, the chief building official may revoke a permit issued under this Act,

(a) if it was issued on mistaken, false or incorrect information; [or]

(d) if it was issued in error

[42] In addition, a challenge can be brought under s. 25 of the Building Code Act, which gives access to an expeditious judicial determination about whether the issuance of the permit was proper. The section states, in part:

25(1) Any person who considers themself aggrieved by an order or decision made by an inspector or chief building official under this Act or the regulations, except a decision not to issue a conditional permit under subsection 8(3), may, within twenty days after the order or decision is made, appeal the order or decision to a judge of the Ontario Court (General Division) [Superior Court of Justice].

(4) If an appeal is made under this section, the judge shall hold a hearing and may rescind or affirm the order or decision of the inspector or chief building official or take such action as the judge considers the inspector or chief building official ought to take in accordance with this Act and the regulations and, for such purpose, may substitute his or her opinion for that of the inspector or chief building official.

(7) An appeal under subsection (1) does not stay the operation of the order or decision appealed from but a judge may, on such terms as are just, stay the operation of the order or decision until the disposition of the appeal. 1992, c. 23, s. 25(7); 2000, c. 26, Sch. K, s. 1.

[43] The remaining issue is whether the advice given by the chief building official in the form of a building permit was reasonable in the circumstances. On the theory that members of the public relying on advice from public officials have less knowledge of the law than those officials, the threshold of reasonableness is not a high one. As Lamer C.J.C. stated in Jorgensen, at p. 80 S.C.R., p. 527 D.L.R.:

. . . It is sufficient, therefore, to say that if an appropriate official is consulted, the advice obtained will be presumed to be reasonable unless it appears on its face to be utterly unreasonable. [page429]

[44] The record reveals that it was not immediately clear to the Authority whether the site was within their jurisdiction. Consultation with the Authority's hydrologist was necessary before it could be determined that the site was a wetland feature, and site visits had to be made by the hydrologist and an ecologist in order to verify this. As well, there was no evidence that tests had ever been conducted on this site, and no evidence that the property owner in this case had previously been alerted to the fact that the property may be under the jurisdiction of the Authority.

[45] It seems to me that, given the conflicting evidence, it could not be said that it was unreasonable for the permit to be issued and for its recipients to rely on it. The Justice of the Peace at trial, in fact, after hearing all of the evidence, concluded that the site was not a swamp. I appreciate that this finding was overturned by Justice Hunter on appeal, but that does not make the issuance of the permit, or reliance on it, unreasonable in these circumstances.

[46] No construction of the tank took place until Cranbrook, Terpstra and Landmark ascertained, by applying for a building permit, that they were legally entitled to do so. Permission came in the form of a building permit, an official document which, based on s. 8 of the Building Code Act, authorized construction only if all relevant legal requirements are satisfied. The owner and contractor were therefore entitled, reasonably, to rely on the advice implicit in the issuance of the permit, namely, that they were violating no applicable law in building on the site.

[47] I appreciate that the Authority has been assigned a highly sensitive and significant statutory mandate which it is obliged to pursue with protective rigour. But where, as here, the facts reveal a reasonable reliance on what proved to be a mistake on the part of the chief building official, the defence of officially induced error can be justified.

[48] I would dismiss the appeal.

[49] MACPHERSON J.A.: -- I have had the opportunity to read the reasons prepared by my colleague, Abella J.A. I regret that I do not agree with her proposed disposition of the appeal.

[50] I agree with my colleague's summary of the facts and statement of the issue. I also agree with her conclusions in relation to several components of the defence of officially induced error. However, in the end, I disagree with her analysis concerning the reliance component of the defence which, regrettably, leads me to a different proposed disposition of the appeal.

[51] There is a recognized defence of officially induced error. It is available in criminal prosecutions: see R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55, 129 D.L.R. (4th) 510. [See Note 1 at end of document] [page430] It is also a potential defence of an accused charged with violating a regulatory statute: see R. v. Cancoil Thermal Corp. and Parkinson (1986), 11 C.C.E.L. 219, 27 C.C.C. (3d) 295 (Ont. C.A.).

[52] There are five elements or components in the defence -- (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 Jorgensen at pp. 77-81 S.C.R., pp. 525-27 D.L.R. and Cancoil at pp. 303-04 C.C.C., p. 231 C.C.E.L.

[53] My colleague concludes that all five of these elements are present in this case and that the summary conviction appeal judge was correct to apply the defence on the non-suit and acquit the respondents. I agree with my colleague's conclusions with respect to elements (1), (2) and (3), disagree with her conclusion relating to element (4), and do not reach element (5).

[54] In my view, the respondents' invocation of the defence of officially induced error founders on the reliance element. The summary conviction appeal judge dealt with reliance in this fashion:

There is no suggestion whatsoever that the Respondents at any time acted in other than a reasonable manner; they acted in good faith.

I am satisfied that the Respondents are entitled to rely on the defence of officially induced error . . . They did all that was required of them, as I say, in good faith.

In other words, in the absence of evidence of bad faith, the summary conviction appeal judge assumed that the respondents relied in good faith on the advice of the chief building official.

[55] On appeal, my colleague draws a similar inference. In the "Background" section of her reasons, she states: "There was no evidence of bad faith on the part of the owner or contractor". In the "Analysis" section of the judgment, she reasons [at para. 33]:

[The application form for a building permit] obliges the Chief Building Official to ensure that he or she has all relevant information from the applicant to determine whether, among other things, environmental concerns under relevant legislation have been satisfied. And if, based on the information provided in good faith, an error has been made, his or her decision can be [page431] reviewed under the Building Code Act. But until the issuance of a permit is challenged, as it was in this case by the Authority, individuals acting in good faith should reasonably be able to rely on it for the assumption that they are in compliance with their legal obligations.

(Emphasis added)

[56] With respect, I do not agree that good faith, and therefore reliance, can be inferred from the absence of evidence of bad faith. The respondents brought their motion for a non-suit at the conclusion of the Crown's case. They called no evidence. Accordingly, there is no basis for concluding that their application to the chief building official was made in good faith. Perhaps it was; however, perhaps it was not. The point is that there is no way of knowing and, with respect, it is wrong to infer good faith, just as it would be wrong to infer bad faith.

[57] I am especially unwilling to infer good faith and reliance on the facts of this case and bearing in mind the statute in question. The respondents were not applying for a building permit to construct a backyard deck. Rather, they sought permission to construct a liquid pig manure storage tank 160 feet in diameter and 12 feet deep. This storage tank would be located in rural Ontario and, specifically, in a location where, it is clear from the exhibits, including aerial photographs, there are obvious wetlands environmental concerns. This simple fact implicates in turn the Conservation Authorities Act, R.S.O. 1990, c. C.27, which is a crucial provincial law with a stated purpose, in s. 20, of furthering "the conservation, restoration, development and management of natural resources". In short, the reality of what the respondents propose to build, and the clear nexus between the proposed structure and the Conservation Authorities Act, suggest caution and vigilance.

[58] The onus to establish an affirmative defence rests on the party asserting it. As expressed by Lacourcière J.A. in Cancoil, "it will be for the trier of fact to decide whether the accused has proved, by a preponderance of evidence, that he was misled by the inspector into thinking that [the accused's conduct] would not be in contravention of the law" (at pp. 303-04 C.C.C., p. 231 C.C.E.L.). Or, as put succinctly by Lamer J. in Jorgensen, "the accused must demonstrate reliance on the official advice" (at p. 81 S.C.R., p. 527 D.L.R.).

[59] The respondents did not demonstrate reliance in the present case. They brought a motion for a non-suit, and said nothing. This placed the trial judge and the summary conviction appeal judge in the same predicament as the trial judge in R. v. Savard, [2001] O.J. No. 3350 (QL) (C.J.), who dealt with the reliance component of the defence of officially induced error, at paras. 18-20:

And finally, for the defence of officially induced error to succeed, there must be evidence that Mr. Savard did rely on the erroneous advice he claims that [page432] he was given by his Member of Parliament. Quite simply, the court is unaware of what was in Mr. Savard's mind. He did not testify at the trial, by choice, and there is no other way for that determination to be made . . . .

. . . What was he thinking? How did he interpret the advice that he was given? I cannot guess.

. . . Mr. Savard has failed to discharge the burden of proving that his conduct was excused by an officially induced error.

[60] In summary, I do not think the respondents have met their burden to establish the reliance element of the defence of officially induced error. The respondents chose to bring a motion for a non-suit/directed verdict at the conclusion of the Crown's case. They led no evidence that they relied on the advice of the chief building official as confirming compliance with the Conservation Authorities Act. The respondents were in the best position, and had the legal obligation, to satisfy the court that they acted in good faith and relied on the building permit to establish compliance with the Conservation Authorities Act. They did not do this; they remained silent on these matters.

[61] For the sake of completeness, I record that, in my view, there is no merit to the respondents' arguments grounded in due diligence and estoppel.

[62] I would allow the appeal and order a new trial.

[63] SIMMONS J.A. (concurring): -- I have had the benefit of reading the reasons of my colleagues Abella J.A. and MacPherson J.A. I agree with MacPherson J.A.'s statement that there are five elements of the defence of officially induced error [See Note 2 at end of document] and with his conclusions that, at the close of the prosecution's case, the respondents had not made out the fourth element and that they did not reach the fifth element. I therefore agree with his proposed disposition of this appeal and respectfully disagree with the disposition proposed by my colleague Abella J.A.

[64] However, I respectfully disagree with my colleagues' finding that, at the close of the prosecution's case, the respondents had satisfied the first three elements of the defence of officially induced error. In addition, I conclude that there was no air of reality to the defence at that point and, therefore, that there was no basis for raising it.

[65] Dealing with the question of whether the respondents satisfied the first three elements of the defence, for ease of reference, I will repeat MacPherson J.A.'s summary of its elements: (1) the [page433] 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 person receiving the advice relied on it, and (5) the reliance was reasonable.

[66] In order to satisfy the first three requirements of the defence, in my view, it would be necessary that the respondents demonstrate three things that were not addressed by the evidence at trial. First, that they turned their minds specifically to the legal consequences of that part of their conduct that is prohibited by the Conservation Authorities Act, R.S.O. 1990, c. C.27, regulation. Second, that they obtained erroneous advice from an official who they believed, on reasonable grounds, was in a position to give advice concerning that issue. Third, that they understood the advice they received to mean that the prohibited aspect of their conduct was not illegal.

[67] Phrased more bluntly, I think it necessary that the respondents demonstrate: (1) that they considered whether it was illegal to build a liquid manure holding tank in a swamp; (2) that they obtained advice from an appropriate official concerning that specific issue; and (3) that, as a result of the advice that they obtained, they believed it was not illegal to build a liquid manure holding tank in a swamp.

[68] None of the cases that were brought to our attention raised, in such precise terms, the issue of what an accused must consider and understand in order to meet the first three requirements of the defence of officially induced error. Accordingly, I base my conclusion on the enunciated rationale for the defence, which is non-blameworthy mistake as opposed to ignorance: see R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55, 129 D.L.R. (4th) 510 at paras. 6-11 and paras. 25-31; and P.G. Barton, "Officially Induced Error as a Criminal Defence: A Preliminary Look" (1979-80) 22 C.L.Q. 314 at pp. 317-18 and p. 328.

[69] I rely in particular on the following comments of Lamer C.J.C. in Jorgensen:

Once it is determined that the error was one of law, the next step is to demonstrate that the accused considered the legal consequences of her actions. By requiring that an accused must have considered whether her conduct might be illegal and sought advice as a consequence, we ensure that the incentive for a responsible and informed citizenry is not undermined. It is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that her conduct was permissible. [See Note 3 at end of document] [page434]

Finally, to benefit from this excuse, the accused must demonstrate reliance on the official advice. This can be shown, for example, by proving that the advice was obtained before the actions in question were commenced and by showing that the questions posed to the official were specifically tailored to the accused's situation. [See Note 4 at end of document]

(Emphasis added)

[70] Although Lamer C.J.C.'s comments concerning "specifically tailored" questions relate to the reliance component of his analysis, it goes without saying that one would have to advert to the prohibited aspect of one's conduct at some point in order to pose appropriate questions.

[71] In my view, if the respondents never considered whether there were legal consequences of building a liquid manure tank in a swamp, and did not obtain advice, from an appropriate official, which they understood related to that issue, they demonstrate ignorance, not mistake, and they should not be entitled to the benefit of this defence. Given that there was no evidence at trial dealing with these specific issues, I conclude that there was no basis for holding that the first three requirements of the defence were satisfied.

[72] I am mindful that it might be argued that the facts in Jorgensen do not support my conclusions about what an accused person must consider and understand in order to satisfy the first three requirements of the defence because, in Jorgensen, the accused simply relied on Ontario Film Review Board approvals and there was no evidence that he posed any "specifically tailored" questions to an appropriate official. However, there was evidence in Jorgensen that the accused told police that he purchased only videos that had been approved by the Ontario Film Review Board. [See Note 5 at end of document] Moreover, Lamer C.J.C. specifically noted, "the appellants were aware that they were involved in a business which risked infringing the Criminal Code" and said he found it significant that "those seeking OFRB approval and classification for films must pay the OFRB per minute of film". [See Note 6 at end of documnet] He also said "the appellants sought and paid for the OFRB opinion of these particular films before putting them on their shelves". [See Note 7 at end of document] Accordingly, it appears clear that, in that case, the accused did turn his mind to the potential legal consequences of the prohibited aspect of his conduct and that there was evidence that he understood [page435] Ontario Film Review Board approval meant that the videos were not obscene. There was no similar form of evidence in this case.

[73] Finally, in determining what an accused person must consider and understand in order to meet the first three requirements of the defence of officially induced error, I also rely on Lamer C.J.C.'s comments that, like entrapment, this defence functions as an excuse for what is otherwise culpable conduct. Where the defence is made out, the appropriate remedy is to enter a judicial stay, not an acquittal, thus ensuring that it will be successful in only the clearest of cases. [See Note 8 at end of document] Accordingly, the very nature of the defence requires that its elements be strictly interpreted and applied.

[74] Turning to the air of reality issue, I conclude that before raising the defence of officially induced error, an accused person must first establish that he made an error that constitutes an error of law. In this case, in my view, no evidence was adduced capable of supporting an inference that the respondents contravened the Conservation Authorities Act regulation as the result of an error of law. I therefore conclude that there was no air of reality to the defence of officially induced error.

[75] In Jorgensen, Lamer C.J.C. alluded to this preliminary requirement on two occasions when discussing the existence and availability of the defence.

[76] First, when beginning his discussion of the elements of the defence, Lamer C.J.C. emphasized the importance of maintaining the distinction between errors of law and errors of fact in preserving the principle that ignorance of the law is no excuse. In doing so, he said the following at para. 28:

The first step in raising an officially induced error of law argument will be to determine that the error was in fact one of law or of mixed law and fact. Of course, if the error is purely one of fact, this argument will be unnecessary . . . Distinguishing between mistakes of fact and those of law remains conceptually important. Mistakes of law will only be exculpatory in narrowly defined circumstances.

(Emphasis added)

[77] Later, when summing up the requirements of the defence, he said the following at para. 36:

It can only be raised after the Crown has proven all elements of the offence. In order for an accused to rely on this excuse, she must show, after establishing she made an error of law, that she considered her legal position, consulted an appropriate official, obtained reasonable advice and relied on that advice in her actions.

(Emphasis added) [page436]

[78] In this case, the respondents led no evidence at trial. Instead they brought three motions at the conclusion of the prosecution's case to dismiss the charges against them. The first motion related to whether the prosecution had established a case against Mr. Terpstra personally. In their second motion, the respondents claimed that the building permit was a complete defence to the charges under the Conservation Authorities Act regulation. In their third motion, the respondents claimed that the prosecution had not established that the construction site was a swamp. The presiding justice of the peace dismissed the charges based on the third motion.

[79] On appeal, the respondents submitted that, by issuing a building permit, the chief building official gave an opinion, under s. 8(2) of the Building Code Act, 1992, S.O. 1992, c. 23, that the proposed construction complied with "any other applicable law", including regulations under the Conservation Authorities Act. They claimed that if the chief building official made an error in giving that opinion, they were entitled to rely on the building permit as evidence of officially induced error.

[80] The essence of the respondents' claim that they made an error of law is that the building permit amounted to "advice" from the chief building official that the proposed construction did not contravene "other applicable law". However, there was no evidence that the respondents were aware, at the time they commenced construction, that the chief building official was required to consider whether the proposed construction contravened "other applicable law" before issuing a building permit. Accordingly, in my view, at the close of the prosecution's case, there was no evidence capable of supporting an inference that the respondents actually made an error, and, therefore, no basis for classifying any error that they may have made. The respondents were not therefore entitled to raise the defence of officially induced error.

[81] In reaching this conclusion, I have considered that, in Jorgensen, the accused did not testify, but that Lamer C.J.C. nevertheless held that he might have been entitled to a defence based on error of law. However, in that case, as I have already noted, there was other evidence that the accused made an error of law. In particular, there was evidence that the accused told police that he purchased only videos that had been approved by the Ontario Film Review Board. [See Note 9 at end of document] In addition, Lamer C.J.C. noted, "[t]he appellants were aware that they were involved in a [page437] business which risked infringing the Criminal Code". [See Note 10 at end of document] Accordingly, there was an evidentiary basis for Lamer C.J.C.'s conclusion that the accused made an error of law, namely "concluding that the films [he] retailed were not legally obscene" (emphasis added). [See Note 11 at end of document]

[82] In summary, because I have concluded that, at the close of the prosecution's case, there was no evidence capable of supporting an inference that the respondents made an error of law, I also conclude that there was no air of reality to the defence of officially induced error, and that the respondents were not entitled to raise it.

[83] I agree with my colleagues that there is no merit in the respondents' arguments based on due diligence and issue estoppel.

[84] I would allow the appeal and order a new trial.

Appeal allowed.

Notes

Note 1: Although Lamer C.J.C. observed that "officially induced error of law functions as an excuse rather than a full defence" (p. 81 S.C.R., p. 527 D.L.R.), most of the case law, the commentators and my colleague use the word "defence" which, in my view, is also an appropriate label.

Note 2: Like my colleagues, I propose to use the label "defence" as a matter of convenience, recognizing that "excuse" may be the more precise terminology.

Note 3: At para. 29.

Note 4: At para. 35.

Note 5: See para. 105.

Note 6: At para. 40.

Note 7: At para. 40.

Note 8: Jorgensen at para. 37.

Note 9: See para. 105.

Note 10: At para. 40.

Note 11: At para. 40.