DATE: 20040224 DOCKET: C40251

COURT OF APPEAL FOR ONTARIO

DOHERTY, MACPHERSON and SIMMONS JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

• and -

DARCY PICKLES

Respondent

Michael M. Miller for the appellant

Eric O. Gionet for the respondent

HEARD: January 8, 2004

On appeal from the judgment of Justice Joseph B. Wilson of the Ontario Court of Justice dated April 23, 2003.

MACPHERSON J.A.:

A. INTRODUCTION

[1] The respondent, Darcy Pickles, constructed a dock for the Ravalli family in the township of Seguin. He did not obtain a building permit from the township and was charged with the offence of building without a permit contrary to s. 8(1) of the Building Code Act, 1992, S.O. 1992, c. 23 ("the BCA"). Section 36(8) of the BCA establishes a one year limitation period for certain offences, including violations of s. 8(1). The information charging Pickles was sworn thirteen months after the completion of the dock.

[2] His Worship Justice of the Peace Michael G. Kitlar dismissed the charge on the basis of the limitation period. His decision was upheld on appeal by Justice Joseph B. Wilson of the Ontario Court of Justice. Morden J.A. of this court granted the Crown leave to appeal Wilson J.'s decision and framed the legal questions as follows: "Does the doctrine of discoverability apply to the offence of constructing without a permit and is this offence a continuing offence?"

B. FACTS

(1) The parties and the events

[3] Darcy Pickles was a building contractor. Sab Ravalli owned a cottage in the township of Seguin. He retained Pickles to build a boathouse. Pickles went to the township's building department and was told that he would need to obtain approval from the Department of Fisheries and Oceans ("DFO") in order to build a boathouse on the Ravalli property.

[4] Pickles and Ravalli met Andrea Doherty, a DFO representative, at the cottage. She told them that it would be difficult to obtain approval for a boathouse. However, Doherty told them that they could build a floating dock instead and advised them where they could build it. Ravalli testified that Doherty told them that she would send them a confirming letter within a week. She did not send such a letter. Pickles and Ravalli constructed the dock in July 2000. Pickles did not return to the township's building department to seek a building permit because he thought that DFO's verbal approval through Doherty was sufficient.

[5] In August 2001, the municipal authorities became aware of the Ravallis' floating dock. Pickles was charged with building without a permit contrary to s. 8(1) of the BCA:

8(1) No person shall construct…a building…unless a permit has been issued therefor by a building official.

(2) The court proceedings

[6] The trial took place before His Worship Justice of the Peace Kitlar.

[7] The BCA creates three types of offences:

36(1) A person is guilty of an offence if the person,

(a) knowingly furnishes false information in any application under this Act or in any statement or return required to be furnished under this Act or the regulations;

(b) fails to comply with an order, direction or other requirement made under this Act; or

(c) contravenes this Act, the regulations, a by-law passed under section 7 or a condition imposed under section 9.

The offence of building without a permit contrary to s. 8(1) comes within s. 36(1)(c) of the BCA.

[8] The BCA also contains a limitation period for s. 36 offences:

36(8) No proceeding under this section shall be commenced more than one year after the time when the subject-matter of the proceeding arose.

[9] The trial judge held that this limitation period compelled the acquittal of Pickles since the Crown had laid the charge against him thirteen months after the dock had been constructed. The appeal to Justice Wilson was dismissed. The Crown sought and obtained leave to appeal to this court.

C. ISSUES

[10] The issues on appeal are the two set out in Justice Morden's order granting leave to appeal: Does the doctrine of discoverability apply to the offence of constructing without a permit and is this offence a continuing offence?

D. ANALYSIS

[11] The Crown contends that the courts below made two errors: (1) they did not apply the discoverability principle to the limitation period set out in s. 36(8) of the BCA and (2) they did not hold that the offence of building without a permit contrary to s. 8(1) of the BCA is a continuing offence which becomes complete only when a permit is obtained. I will deal with these two submissions in turn.

(1) Discoverability

[12] Pickles completed construction of the dock in July 2000. The township first became aware of the dock in August 2001. Pickles was charged with building without a permit the same month. The Crown contends that it was the township's 'discovery' that Pickles had built a dock without a permit that triggered the commencement of the s. 36(8) limitation clock. Accordingly, the charge was laid mere days - not thirteen months - after the clock started to run.

[13] The discoverability rule is merely a rule of construction. It will apply to some limitation periods, but not to all. This fundamental point, as well as the test for distinguishing between application and non-application scenarios, were explained by Major J. in the leading case Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549 at 564:

In this regard, I adopt Twaddle J.A.'s statement in Fehr v. Jacob (1993), 1993 4407 (MB CA), 14 C.C.L.T. (2d) 200 (Man. C.A.), at p. 206, that the discoverability rule is an interpretive tool for the construing of limitation statutes which ought to be considered each time a limitations provision is in issue:

In my opinion, the judge-made discoverability rule is nothing more than a rule of construction. Whenever a statute requires an action to be commenced within a specified time from the happening of a specific event, the statutory language must be construed. When time runs from "the accrual of the cause of action" or from some other event which can be construed as occurring only when the injured party has knowledge of the injury sustained, the judge-made discoverability rule applies. But, when time runs from an event which clearly occurs without regard to the injured party's knowledge, the judge-made discoverability rule may not extend the period the legislature has prescribed.

See also: Waschkowski v. Hopkinson Estate (2000), 2000 5646 (ON CA), 47 O.R. (3d) 370 (C.A.).

[14] In his text Guide to Ontario Building Legislation (Carswell: Scarborough, 1996), Richard Arblaster discusses the limitation period set out in s. 36(8) of the BCA. He said, at p. 1-56:

The offence of breaching the Building Code Act or its regulations or by-laws occurs when the offence is committed, as opposed to when discovered, and is also concluded on the day that the activity is question is completed. For example, the offence of building without a permit would be concluded on the last day that work without a permit occurred; building not in conformance with the Building Code would be concluded on the day that the building or construction in question was completed or work ceased. The one-year limitation period would begin to run from that day.

[15] I agree with this analysis and conclusion. The event which led to the charge against Pickles (or, in the language of s. 36(8) of the BCA"the subject matter of the proceeding") was building the dock without a permit. This specific act was completed in July 2000. It was, therefore, the completion of this act that triggered the commencement of the limitation period. There is nothing in the nature of this specific act or in the wording of s. 36(8) of the BCA to suggest that the limitation period commenced at the moment the township 'discovered' Pickles' act. Accordingly, the laying of the charge against him thirteen months after he had completed construction of the dock was outside the one year period set out in s. 36(8).

[16] Moreover, I note that, in the context of regulatory statutes like the BCA, it is open to the legislature to specifically build the discoverability principle into the wording of a limitation period. An example is s. 129(1) of the Securities Act, R.S.O. 1990, c. S.5:

129(1) No proceeding under this Part shall be commenced in a court more than one year after the facts upon which the proceeding is based first came to the knowledge of the Commission.

In the absence of clear legislative language importing the discoverability principle into a statute, I see no reason why the court should expand the reach of the regulatory prohibition by resort to the discoverability principle.

(2) Continuing offence

[17] The Crown's second submission is that the offence of building without a permit is a continuing offence until a permit is obtained. Since Pickles never obtained a permit, the limitation period did not begin to run before he was charged. In support of this submission, the appellant relies on the decision of Justice Hawke in R. v. Aregers (1997), 38 C.L.R. (2d) 95 (O.C.J.) ("Aregers"), wherein she held that the offence of building without a permit in s. 8(1) of the BCA was not complete until a permit had been issued.

[18] I do not agree with the decision in Aregers. I note that leave was sought to appeal it to this court: Shanks v. Aregers (1997), 38 C.L.R. (2d) 101. Charron J.A. refused to grant leave because it was not essential in the public interest or for the due administration of justice that leave be granted: see Provincial Offences Act, R.S.O. 1990, c. P.33, s. 131(2). However, Charron J.A. observed, at para. 7, that she found "much merit in the position advanced by the applicant, particularly with respect to the interpretation given by the appeal court judge [Justice Hawke] to s. 8(1)."

[19] In the present case, Wilson J. also declined to follow Aregers. He said:

With respect, I am not of the same view as Justice Hawke in the Aregers case where she stated that the subject matter "is the presence of construction and the issuance of a permit.".…In my opinion, the illegality of Mr. Pickles' actions ended when he finished the project before the end of July 2000 and did not continue thereafter. There was nothing further for him to do [emphasis in original].

[20] In reaching this conclusion, Wilson J. relied on the decision of this court in R. v. Rutherford (1990), 1990 13293 (ON CA), 38 O.A.C. 41 ("Rutherford"). In that case, an electrical contractor was charged with faulty installation of electrical equipment contrary to s. 93(11)(b) of the Power Corporation Act, R.S.O. 1980, c. 384. The charge was laid more than six months after the installation work had been completed. By virtue of s. 76(1) of the Provincial Offences Act, R.S.O. 1980, c. 400, a six month limitation period applied to the offence.

[21] The Crown took the position that because the faulty installation had never been repaired, the offence was a continuing one and the limitation period did not apply. A majority of the court (Morden and Grange JJ.A.) rejected this submission. Grange J.A. stated, at pp. 43 and 44:

It is important that we appreciate just exactly what it was that the appellant did that brought about the charges. He installed an improper panelboard and provided improper grounding on the service switch at premises located at Lot 35, Concession 5, Darlington Township. All of the work was performed and completed by August 23, 1985.

It is contended by the prosecution that so long as the defect continues, these offences continue and time does not therefore run.

I cannot accept that contention. The act complained of, in my view, was faulty installation under s. 93(11)(b) of the Power Corporation Act and all of that work was completed on August 23, 1985. The appellant's neglect to comply with the regulation was complete on that date and time under the limitation section of the Provincial Offences Act then started to run.

[22] In my view, Wilson J. was correct to rely on Rutherford in the present case. The nature of the offences in the two cases is similar. In both cases, there was a specific act - faulty installation of electrical equipment and construction of a dock without a building permit. In both cases, the consequences of the specific act 'continued' in a sense - the electrical equipment was not repaired and a building permit was never obtained. However, in Rutherford this court held that the completion of the specific act triggered the commencement of the limitation period. As Wilson J. correctly recognized, the same interpretation, and result, should follow in the present case.

[23] There is a second feature of Rutherford that, in my view, is telling in this appeal. In his discussion about so-called 'continuing offences', Grange J.A. observed, at p. 45:

It is considerably easier to find a continuing offence where the statute provides for a penalty for every day that the corrective work is not done or the offending activity continues to be done. Such a provision is found in s. 93(11)(c) of the Act, which relates to continued disobedience of an order made under s. 93(5). The juxtaposition of this provision in s. 93(11)(c) to the absence of such a provision in s. 93(11)(b) is significant.

[24] There is a similar juxtaposition of provisions in the BCA. Indeed, under the specific heading Continuing offence, s. 36(6) of the BCA provides:

36(6) Every person who fails to comply with an order made by a chief building official under subsection 14(1) or clause 15(5)(a) is guilty of an offence and on conviction, in addition to the penalties mentioned in subsections (3) and (4), is liable to a fine of not more than $10,000 per day for every day the offence continues after the time given for complying with the order has expired.

[25] In my view, it is clear and noteworthy that the legislature specifically addressed the subject of continuing offences in the BCA, and did not include violations of s. 8(1) in its list of such offences.

E. DISPOSITION

[26] I would dismiss the appeal.

RELEASED: February 24, 2004 ("DHD")

"J. C. MacPherson J.A."
"I agree Doherty J.A."
"I agree Janet M. Simmons J.A."