Huron Contractors Inc. v. South Huron (Municipality), 2009 ONCA 163

CITATION: Huron Contractors Inc. v. South Huron (Municipality), 2009 ONCA 163

DATE: 20090223

DOCKET: C48482

COURT OF APPEAL FOR ONTARIO

Goudge, Gillese and Rouleau JJ.A.

BETWEEN:

Huron Contractors Inc. and Dean Ducharme

Appellants

and

Municipality of South Huron

Respondent

Norman A. Pizzale for the appellants Huron Contractors Inc. and Dean Ducharme

Andrew C. Murray for the respondent Municipality of South Huron

Heard: January 12, 2009

On appeal from the dismissal of the appeal by Justice R.G.E. Hunter of the Ontario Court of Justice (General Division) on January 7, 2008 and the convictions on special grounds by Justice of the Peace Calvin V. Hurst of the Ontario Court of Justice dated May 17, 2007.

Goudge J.A.:

[1] The appellants were convicted of four offences under the Building Code Act, 1992 S.O. 1992, c. 23, as amended (the BCA):

(a) causing a building to be constructed without obtaining a building permit;

(b) failing to comply with an order to obtain a building permit;

(c) failing to cease construction after an order to stop work was issued; and

(d) failing to comply with an order, direction or other requirement made under the BCA.

[2] With leave, they appeal their convictions. For the following reasons, I would dismiss the appeals.

[3] On April 12, 2005 the appellants applied to the respondent for a building permit for a residential property. On April 13, 2005 the building permit was prepared and signed by the responsible municipal official, and was assigned a permit number. The appellants were telephoned by a municipal clerk and told that the permit was ready. In May, a copy of the permit was sent to several government agencies to be acted on, and the municipal council was told that the permit had been issued.

[4] However, a dispute developed between the appellants and the respondent about the amount to be paid for the permit. The appellants never picked up the permit from the respondent nor did they ever pay for it.

[5] On February 27, 2006 the respondent wrote to the appellants returning the plans and the application form, and stating that, since payment was never received, the application “has become void” but that the appellants could reapply for a building permit if they wished.

[6] The appellants took the position that a building permit had been issued to them and had never been revoked. They therefore continued to construct the building on the property.

[7] On the other hand, the respondent took the position that a permit had never been issued. On April 28, 2006 it issued an order for the appellants to comply with the BCA by obtaining a building permit and on May 5, 2006 it issued a stop work order for the property.

[8] In this court, the appellants’ primary position was that a building permit was issued by the respondent and was never revoked. The appellants acknowledge that to succeed, they must be successful on both points, at least on the first three convictions.

[9] I do not think it is necessary to decide whether the permit was issued for the purposes of the BCA. That is a question which will depend on, among other things, the practices of the municipality, the understandings of the construction industry, and the circumstances of the particular case. Suffice it to say that it is in everyone’s interest that a municipality have a transparent policy and practice to make clear to all when a building permit is issued.

[10] For this case, I am content to proceed by assuming, without deciding, that the respondent issued a building permit to the appellants in April 2005.

[11] Assuming this to be so, there can be no doubt that as of the February 27, 2006 letter they received, the appellants were told by the respondent that they did not have the right to act as if they had a permit. Assuming a building permit had been issued to them, as of that date it was clearly revoked by the respondent.

[12] Section 8(10) of the BCA empowers a municipality to revoke a permit if it was issued on mistaken information or issued in error. In this case, the respondent was mistaken and in error in assuming that the permit would be paid for. The power to revoke was therefore properly engaged. Section 8(10) does not require the explicit use of the word “revoke” when exercising that power. The substance of the statutory provision is satisfied here where the respondent clearly communicated to the appellants on February 27, 2006 that they could not act on the basis that they had a valid building permit. Since that communication occurred, there exists no basis upon which to challenge the orders of April 28 and May 5, 2006. That is enough to dispose of the appellants’ challenge to the first three convictions and their primary argument on the fourth conviction.

[13] However, the appellants argue in the alternative that the fourth conviction was based on the same facts as at least some of the earlier convictions and should be set aside because of the rule against multiple convictions.

[14] In my view, this argument must also fail. While the information wants for precision, no particulars were sought at trial. In convicting the appellants, the trial judge stated his understanding that this charge was based on the fact that they continued to construct the building without a permit after the date on which the first information is based. Counsel for the appellants raised no objection to this understanding. Understood this way, as I think it was, the fourth charge is clearly distinguishable from the second and third charges which are based on defying orders made by the respondent. It is also distinguishable from the first charge which is based on commencing to build without a permit, on a specified date. The appellants agree that they continued to construct the building after that date. As I have concluded that the fourth charge was based on this continued construction and that the appellants understood this, it does not violate the rule against multiple convictions.

[15] In summary I would dismiss the appeals of all four convictions. The parties agree that costs ought not to be awarded in this matter and none are ordered.

RELEASED: February 23, 2009 “STG”

“S.T. Goudge J.A.”

“I agree E. E. Gillese J.A.”

“I agree Paul S. Rouleau J.A.”