Court of Appeal for Ontario

CITATION: R. v. Irwin, 2020 ONCA 776

DATE: 2020-12-09

DOCKET: C67963

Doherty, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen Ex. Rel.

The Regional Municipality of York

Respondent

and

Robert Irwin

Appellant

Gerard C. Borean, for the appellant

Chris G. Bendick, for the respondent

Heard: October 29, 2020, via videoconference

On appeal from the convictions entered on October 23, 2019, by Justice David S. Rose of the Ontario Court of Justice, with reasons reported at 2019 ONCJ 785, overturning the acquittals entered by Justice of the Peace Tina Rotondi on February 14, 2019.

Hourigan J.A.:

Part I: Overview

[1] The appellant, Robert Irwin, was charged with failing to comply with six orders issued pursuant to the Building Code Act 1992, S.O. 1992, c. 23 (the “Act”). The orders required him to obtain building permits for certain structures on his property or remove them. He did not appeal those orders. Instead, he raised as his primary defence at trial for some orders that he had obtained the required building permits years before the orders were issued. For the other orders, he argued that he did not need a building permit. The respondent submitted that these defences were unavailable because they amounted to a collateral attack on the orders.

[2] The justice of the peace who conducted the trial found that the collateral attack rule was inapplicable and acquitted Mr. Irwin. On appeal, the Ontario Court of Justice found that the justice of the peace erred in law on the issue and that the collateral attack rule precluded Mr. Irwin from asserting his defences.

[3] As I will explain, in my view, the appeal judge erred in finding that the collateral attack rule applied with respect to the defence asserted for all but two of the charges. I would, therefore, allow the appeal in part.

Part II: Facts

[4] Mr. Irwin has owned the land and premises municipally known as 5781 Highway 7 in the City of Vaughan, in the Regional Municipality of York, since the early 1970s. Between 1973 and 1996, Mr. Irwin entered into various site plan agreements with York and applied for building permits.

[5] In 1996, an inspector from the Vaughan Building Standards Department issued six orders to comply with respect to buildings on the property numbered 1, 2, 3, 4, 5, 6 and 7 (the “1996 Orders”). Those orders required Mr. Irwin to obtain a building permit for the relevant buildings or remove them. Mr. Irwin was eventually charged under the Act with failure to comply with the 1996 Orders.

[6] Mr. Irwin’s evidence was that after he was charged with breach of the 1996 Orders, he gave his then lawyer, Scott Sievert, building permits related to buildings numbered 1, 2, 5, 6, and 7. For buildings numbered 3 and 4, Mr. Irwin was of the view that no permits were required. He testified that the city asked him to submit a site plan for all the buildings, which he did in 1996. Shortly thereafter, he was told by Mr. Sievert that the charges would be withdrawn.

[7] Mr. Irwin testified that he complied with the 1996 Orders. His evidence was that the permits were kept in his lawyer’s office. However, they were later destroyed in a fire that also took Mr. Sievert’s life.

[8] Mr. Irwin heard nothing further on the issue of permits from the respondent for 17 years. Then in 2013, a different inspector from the City of Vaughan issued new orders to comply (the “2013 Orders”). These new orders were identical to the 1996 Orders; they alleged the same infractions, almost verbatim, and attached the same hand-drawn Schedule "A" of Mr. Irwin's property. The only differences were that new order numbers were added, and they indicated on their face that they replaced the 1996 Orders. The required action stated on each order to comply was, “obtain the required building permit or remove the unauthorized construction and restore the building/property to its former state.”

[9] Mr. Irwin took no fresh steps to comply with the 2013 Orders. He also did not avail himself of the appeal route in s. 25 of the Act, which provides:

A person who considers themself aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under this Act (except a decision under subsection 8 (3) not to issue a conditional permit) may appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made.

[10] The respondent charged Mr. Irwin with six counts of contravening s. 36(1) of the Act, due to his non-compliance with the 2013 Orders. Before the trial on these charges, the respondent did not disclose documentation regarding the 1996 Orders and resisted an application to produce those documents. The justice of the peace ordered that the documents be produced, and the respondent successfully appealed that order to the Superior Court. On a further appeal to this court, the order of the justice of the peace was reinstated.

[11] At trial, Mr. Irwin testified that no additional buildings or structures were erected after 1996. He explained that he obtained the required building permits from the 1970s through to 1996. He did not, however, produce any building permits at trial. Mr. Irwin’s evidence was that he gave any permits in his possession to Mr. Sievert to deal with the 1996 charges. All were subsequently lost in the fire.

[12] The respondent adduced no evidence that any of the renovations or alterations that were the subject of the 2013 Orders were done after 1996. The extent of the respondent’s evidence about the timing of the renovations and alterations came from its building inspector, who testified that they were done after the construction of the original buildings based on his visual inspection. He also gave evidence that no relevant building permits were found in a search of the respondent's files.

[13] Among the documents produced were copies of Mr. Irwin’s applications for various building permits for buildings 1, 2, 5, 6, and 7. Some of those documents bear both an application number and a second stamped number that Mr. Irwin claims is a building permit number. The building inspector who issued the 2013 Orders testified that the stamped number is assigned to an application on its receipt. The same number will eventually be used as a building permit number if a permit is granted. Therefore, according to the building inspector, the stamped number Mr. Irwin was relying on was not necessarily indicative that a permit had been issued.

[14] Mr. Irwin also relied on a letter from Mr. Sievert dated December 13, 1996, to Jack Hamilton of the respondent’s legal department. In the letter, Mr. Sievert confirms a telephone conversation with Mr. Hamilton wherein Mr. Hamilton advised that the respondent would be withdrawing the charges and that there was no need for Mr. Irwin to appear in court.

Part III: Previous Decisions

(i) Decision of the Justice of the Peace

[15] At trial, the respondent took the position, as it does here, that Mr. Irwin’s defence that he had complied with the 2013 Orders was unavailable because it amounted to a collateral attack on those orders’ validity. According to the respondent, because Mr. Irwin did not avail himself of his right of appeal under s. 25 of the Act, his only available defences were that he either obtained a permit after the 2013 Orders were issued or removed the offending structures.

[16] The justice of the peace rejected the respondent’s collateral attack submission. She distinguished the jurisprudence relied upon by the respondent, including R. v. Consolidated Maybrun Mines Ltd., 1998 CanLII 820 (SCC), [1998] 1 S.C.R. 706, York (Regional Municipality) v. Martin Grove Properties Ltd., [2015] O.J. No. 6952, leave to appeal refused, [2016] OJ No 1582 (Ont. C.A.), and Mississauga (City) v. Ashley Development Ltd., 2017 ONCJ 557, on the basis that those cases all involved situations where the defendants attacked the validity of the relevant order, while in the present case Mr. Irwin’s defence was that he complied with the 2013 Orders.

[17] Having rejected the collateral rule as inapplicable, the justice of the peace went on to make several factual findings regarding the building permits. First, she found that the renovations and alterations referred to in the 2013 Orders were completed prior to 1996. Second, she found that the respondent was aware of the construction in issue in 1996. Third, she found that the appellant submitted prior applications for building permits and the requested site plan in 1996. Fourth, she found that shortly after these documents were filed, the respondent withdrew the charges. In addition, the justice of the peace relied on an application for a building permit and a corresponding permit issued by the respondent to Mr. Irwin for an unrelated matter. It showed that the number stamped on the bottom of the application was the same number that appears on a permit as the permit number.

[18] The justice of the peace concluded that for buildings numbered 1, 2, 5, 6 and 7, "there may have been building permits issued as the number stamped at the bottom of the applications for permits in 1996 can be inferred as a permit number based on the process that appears to be in place with the City of Vaughan.” Accordingly, the justice of the peace was not satisfied that the respondent had proven its case beyond a reasonable doubt and acquitted Mr. Irwin of the charges related to those buildings.

[19] Regarding the charge related to building 3, which consists of three portable storage sheds that are each approximately 100 square feet with no plumbing, Mr. Irwin was also acquitted. The justice of the peace concluded that no building permit was required because building 3 did not fall within the definition of “building” under the Act.[^1] She did not specifically consider the charge related to building 4 in her reasons.

(ii) Ontario Court of Justice

[20] The appeal judge identified the application of the collateral attack rule as a critical issue to be determined on the appeal. After reviewing the terms of s. 25 of the Act, he concluded that the Superior Court was the proper venue for challenging the validity of the 2013 Orders. He also found that Mr. Irwin’s position at trial “was plainly a collateral attack on the 2013 Orders”, as Mr. Irwin remained silent on the topic of the validity of the 2013 Orders until enforcement proceedings began. The appeal judge further held that “by acceding to the defence that Mr. Irwin did not have to comply with the 2013 Orders because of actions taken in 1996 she [the justice of the peace] fell into reversible error.”

[21] The appeal was allowed, and convictions were entered for breach of the orders. The appeal judge imposed a fine of $100 per count, for a global fine of $600.

(iii) OCA Leave Application

[22] Mr. Irwin sought leave to appeal to this court. The motion judge found that it was essential for the due administration of justice that leave to appeal be granted. She also noted that there is precedential value of the appeal decision holding, in effect, that the doctrine of collateral attack applies where a party’s defence is that they have complied with an order that they have not appealed.

Part IV: Analysis

(i) General Principles of the Collateral Attack Rule

[23] The jurisprudence regarding the collateral attack rule is well established. Generally, a collateral attack is defined as an attack on an order “made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order”: Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594, at p. 599. The rule provides that, with limited exceptions[^2], “an order issued by a court must be obeyed unless it is set aside in a proceeding taken for that purpose”: R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 21.

[24] The rule protects the integrity of the justice system by prohibiting a party from avoiding the consequences of an order issued against it by proceeding in another forum: Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at para. 72 and R. v Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333 349. Caldwell J.A. writing for the Saskatchewan Court of Appeal, succinctly summarized the rule this way: “In practical terms, the common law rule prevents a person charged with violating a court order from saying, in his or her defence to that charge, that the order is invalid or unlawful”: R. v Envirogun Ltd., 2018 SKCA 8, 3 W.W.R. 247, at para. 43.

[25] While the early case law on the collateral attack rule focussed on collateral attacks of court orders, the Supreme Court developed a distinct analytical approach when considering the collateral attack of administrative orders. For such orders, the tension animating the rule is between ensuring that the legislature’s decision to assign decision-making powers to administrative bodies is not undermined and that individuals have an effective means available to them to challenge administrative orders: Maybrun at para. 44, and Bird, at paras. 25-26.

[26] The Supreme Court has also identified two important policy rationales that support the rule’s application to administrative orders. First, permitting parties to ignore established procedures for challenging an order would risk discrediting administrative bodies’ authority and thereby undermine their effectiveness. Second, if collateral attacks are allowed, the state will have to resort to criminal charges and sanctions to secure compliance: Maybrun, at para. 42; Bird, at paras. 27-28.

[27] In Maybrun, the Supreme Court directed that the analytical focus should be on whether the legislature intended to permit collateral attacks on the order, or intended instead that a party must challenge the order through other review mechanisms. The court listed five non-exhaustive factors that may be considered in determining the intent of the legislature for challenging the validity of an administrative order: (1) the wording of the statute under the authority of which the order was issued; (2) the purpose of the legislation; (3) the existence of a right of appeal; (4) the kind of collateral attack in light of the expertise or raison d’être of the administrative appeal tribunal; and (5) the penalty on a conviction for failing to comply with the order: Maybrun, at paras. 45-51. These factors “are not independent and absolute criteria, but important clues, among others, for determining the legislature’s intention”: Maybrun, at para. 46.

(ii) Residual Discretion Not to Apply the Collateral Attack Rule

[28] As important as the collateral attack rule is for the integrity of the administration of justice, it is not absolute. This court has recognized that because the rule was developed to advance the ends of justice, it should not be mechanically applied when court orders are attacked where doing so would result in an injustice: Amtim Capital Inc. v. Appliance Recycling Centers of America, 2014 ONCA 62, 118 O.R. (3d) 617, at para. 15.

[29] Not all collateral attacks on court orders offend the rule’s underlying principles, and the court has the discretion not to apply it in those circumstances. For example, in R. v. Domm, (1996) 1996 CanLII 1331 (ON CA), 31 O.R. (3d) 540 (C.A.), the question was whether an accused charged with breach of a court order banning publication of a criminal proceeding could challenge the validity of that order on non-jurisdictional grounds. In his analysis, Doherty J.A., at pp.17-18, made the following comments, which reflect the flexibility of the rule and the inherent discretion judges have in choosing whether to apply it:

The rule against collateral attack on court orders serves to reinforce the compliance component of the rule of law and enhance the repute of the administration of justice by providing for the orderly and functional administration of justice: R. v. Litchfield, supra, at pp.110-111. If a collateral attack on an order can be taken without harm to those interests, then the rule should be relaxed. Review by a trial judge of orders made on pre-trial motions provides an example of a situation in which those interests are not harmed by collateral attack: Litchfield, supra, p. 111 Dagenais, supra, at pp. 311-12

See also: M.K. v. British Columbia (Attorney General), 2020 BCCA 261, R. v. Hawkins Bros. Fisheries Ltd., 2006 NBCA 114, 308 N.B.R. (2d) 163, Dalrymple v. Halifax (Regional Municipality), 2017 NSCA 6, 61 M.P.L.R. (5th) 222, Braithwaite v. Bacich, 1999 NSCA 77, 176 N.S.R. (2d) 173, and Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835.

[30] While these cases affirm the existence of judicial discretion when applying the collateral attack rule to prior court orders, the role discretion plays when one is attacking a prior administrative order has received less attention.

[31] If the legislature has definitively prescribed a particular appeal mechanism for challenging an administrative order, a court is bound to give effect to that legislative choice, absent constitutional infirmity. The collateral attack doctrine is a common law rule of judicial creation that must yield to contrary legislative enactment: Canada (Attorney General) v. Telezone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at paras. 61, 67.

[32] It may appear to be incongruous with the collateral attack rule’s underlying policy rationale of protecting the integrity of the justice system that court orders may be collaterally attacked in the interests of justice, but orders of administrative bodies are immune from such attacks regardless of their impact on the interests of justice. As David J. Mullan notes, in the context of attacks on administrative orders, “when there is an adequate alternative remedy, the Canadian position on collateral attack is more in the nature of a rule than a discretionary consideration”: David J Mullan, "The Discretionary Nature of Judicial Review," in Robert J. Sharpe and Kent Roach, eds., Taking Remedies Seriously: 2009 (2010) at p. 433.

(iii) Limits to the Application of the Collateral Attack Rule

[33] Before turning to the application of the jurisprudence on the collateral attack rule to the facts of the case at bar, it is helpful to have regard to another line of authority regarding the limits of the rule.

[34] In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, the court was concerned with a situation where an employee, who worked as a recreation instructor for the respondent, was convicted of sexually assaulting a boy under his supervision. The employee was subsequently dismissed from his job, and the dismissal was the subject of a labour arbitration proceeding. The arbitrator ruled that the criminal conviction was admissible as prima facie evidence that the employee had sexually assaulted the boy. However, the arbitrator found that the presumption raised by the criminal conviction had been rebutted. Thus, the employee had been dismissed without cause. The Ontario Divisional Court quashed that decision, and an appeal to this court was unsuccessful.

[35] On further appeal to the Supreme Court, Arbour J. found that the appeal should be dismissed on the basis that the effective relitigation of the employee’s criminal conviction before the labour arbitrator amounted to an abuse of process. She rejected the applicability of the collateral attack rule in this context. Her reasons for doing so were as follows, at paras. 33-34:

… Thus, in Wilson, supra, the Court held that an inferior court judge was without jurisdiction to pass on the validity of a wiretap authorized by a superior court. Other cases that form the basis for this rule similarly involve attempts to overturn decisions in other fora, and not simply to relitigate their facts. In R. v. Sarson, 1996 CanLII 200 (SCC), [1996] 2 S.C.R. 223, at para. 35, this Court held that a prisoner's habeas corpus attack on a conviction under a law later declared unconstitutional must fail under the rule against collateral attack because the prisoner was no longer "in the system" and because he was "in custody pursuant to the judgment of a court of competent jurisdiction." Similarly, in R. v. Consolidated Maybrun Mines Ltd., 1998 CanLII 820 (SCC), [1998] 1 S.C.R. 706, this Court held that a mine owner who had chosen to ignore an administrative appeals process for a pollution fine was barred from contesting the validity of that fine in court because the legislation directed appeals to an appellate administrative body, not to the courts. Binnie J. described the rule against collateral attack in Danyluk, supra, at para. 20, as follows: “that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it” (emphasis added).

Each of these cases concerns the appropriate forum for collateral attacks upon the judgment itself. However, in the case at bar, the union does not seek to overturn the sexual abuse conviction itself, but simply contest, for the purposes of a different claim with different legal consequences, whether the conviction was correct. It is an implicit attack on the correctness of the factual basis of the decision, not a contest about whether that decision has legal force, as clearly it does. Prohibited “collateral attacks” are abuses of the court’s process. However, in light of the focus of the collateral attack rule on attacking the order itself and its legal effect, I believe that the better approach here is to go directly to the doctrine of abuse of process.

[36] This case’s significance is that it instructs that before considering whether a collateral attack is permissible, the court should first review the defence or legal argument being asserted to determine whether it is correctly characterized as a collateral attack. If it is not, then the doctrine is inapplicable, and the court need not consider the issue further.

[37] Two subsequent Supreme Court cases are also of note. In Garland, the respondent gas utility, whose rates and payment policies are governed by the Ontario Energy Board, charged a penalty for late bill payments. The appellant commenced a class action seeking restitution for unjust enrichment for the respondent’s charges on the basis that they violated the criminal rate of interest provisions in the Criminal Code. The motion judge granted the respondent’s motion for summary judgment, finding that the action was a collateral attack on the Board's orders. The Court of Appeal disagreed but dismissed the appeal because the unjust enrichment claim could not be made out. The Supreme Court concluded that the collateral attack rule was inapplicable, reasoning, at para. 71:

Based on a plain reading of this rule, the doctrine of collateral attack does not apply in this case because here the specific object of the appellant’s action is not to invalidate or render inoperative the Board’s orders, but rather to recover money that was illegally collected by the respondent as a result of Board orders. Consequently, the collateral attack doctrine does not apply.

[38] Garland was applied by the Supreme Court of Canada in TeleZone. In that case, TeleZone’s application for a licence to provide telecommunications services was rejected by the Minister of Industry Canada. It sought compensation in the Ontario Superior Court of Justice against the Federal Crown, pleading breach of contract, negligence, and, in the alternative, unjust enrichment. The Attorney General challenged the Superior Court’s jurisdiction to proceed with the claim for compensation until TeleZone obtained from the Federal Court of Canada an order quashing the Minister’s decision. It submitted that TeleZone’s claim constituted an impermissible collateral attack on that decision.

[39] In rejecting the applicability of the collateral attack rule, the court reasoned, at paras. 64-65, and 79:

…TeleZone is not seeking to “avoid the consequences of [the ministerial] order issued against it” (Garland, at para. 72). On the contrary, the ministerial order and the financial losses allegedly consequent on that order constitute the foundation of the damages claim. This was the result in Garlanditself…

Similarly in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (S.C.C.), Arbour J. declined to apply the collateral attack doctrine in a case arising out of a grievance arbitration where CUPE sought to challenge the underlying facts of a conviction of one of its members for sexual assault. Arbour J. reasoned that the Union's argument was "an implicit attack on the correctness of the factual basis of the decision, not a contest about whether that decision has legal force, as clearly it does" (para. 34)

TeleZone is not attempting to nullify or set aside the Minister's order. Its case is that the Minister, in deciding not to issue a licence to TeleZone, acted in breach of his contractual and equitable duties or in breach of a duty of care. TeleZone does not say that the Minister's decision should be quashed. On the contrary, TeleZone's causes of action in contract, tort and equity are predicated on the finality of that decision excluding TeleZone from participation in the telecommunications market, thereby (it says) causing it financial loss. Nor does TeleZone seek to deprive the Minister's decision of any legal effect. It does not challenge the licences issued to its competitors. It does not seek to undo what was done. It complains about what was not done, namely fulfilment by Industry Canada of its alleged contractual and equitable duties and its duty of care towards TeleZone itself.

[40] The Toronto analysis has also been adopted in several cases in the British Columbia Court of Appeal. The focus is on whether the legal argument actually attacked the order itself and its legal effect: Fontaine v. Canada (Attorney General), 2019 BCCA 178, 24 B.C.L.R (6th), at para. 89; Lamb v. Canada (Attorney General), 2018 BCCA 266, 10 B.C.L.R. (6th) 118, at paras 94-95; Hollander v. Mooney, 2017 BCCA 238, 27 E.T.R. (4th) 1, at paras. 71-75

[41] In many cases, the defence or legal argument raised will be a clear collateral attack, and this issue may be dealt with summarily. However, it is essential when considering the collateral attack rule that the court first determines whether an attack on the order's validity or judgment is being made. If it is not properly characterized as such, that will be the end of the analysis.

(iv) Application of the Legal Principles

[42] The standard of review on applying the collateral attack rule is correctness: 864503 Alberta Inc. v. Genco Place Properties Ltd, 2019 ABCA 80, 85 Alta. L.R. (6th) 72, at para. 21; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2. S.C.R. 235, at para. 8. Therefore, the question is whether the appeal judge erred in his analysis of the rule's application.

[43] In my view, the appeal judge erred when he found that Mr. Irwin was engaging in a collateral attack by arguing that he had building permits for buildings 1, 2, 5, 6, and 7. By raising the issue of prior permits, Mr. Irwin was arguing that he had complied with the orders. He was not trying to undermine the validity or legal effect of the orders. This was not a collateral attack: Toronto, at para. 34.

[44] However, for the two orders relating to buildings 3 and 4, Mr. Irwin engaged in a collateral attack. His argument against the enforcement of these orders was that no permits were required for the impugned structures. This is a collateral attack because it attacks the validity of the orders themselves. Whether these are permissible collateral attacks must be determined by considering the legislative intent behind the Act: Maybrun, at para. 46.

(i) Buildings 1, 2, 5, 6, 7

[45] Much of the justice of the peace's reasons was devoted to considering the nature of the defence being asserted. Although she did not cite the Toronto line of jurisprudence, she was, in effect, undertaking the same type of analysis as was done by Arbour J. In finding that the collateral attack rule did not apply, she focussed on the fact that Mr. Irwin was not challenging the validity of the 2013 Orders but was asserting that he complied with the terms of those orders.

[46] The appeal judge concluded that the defence amounted to a collateral attack. His reasoning on the issue is contained in the following two paragraphs of his reasons, at paras 19-20:

The defence position at trial was plainly a collateral attack on the 2013 Orders. Mr. Irwin argued that those Orders were of no force or effect because of steps taken some 17 years previously. He remained silent on the topic of the validity of the 2013 Orders until enforcement proceedings began. That is a collateral attack.

I pause in the analysis to observe that the 2013 Orders, on their face, replaced the 1996 Orders. Each of the 2013 Orders stipulates that on its face. The Respondent therefore took the position at trial that he complied with an Order which had been replaced. By acceding to that argument Her Worship erred in law. Mr. Irwin had an appeal route available to him to seek judicial review of the validity of the 2013 Orders or their scope. He did not do that. By acceding to the defence that Mr. Irwin did not have to comply with the 2013 Orders because of actions taken in 1996 she fell into reversible error. That finding must be quashed.

[47] On this appeal, the respondent submits that the appeal judge was correct in his analysis as implicit in the defence argument was that the 2013 Orders were invalid because they were made at a time when building permits were extant. Therefore, this was an attack on the validity of the 2013 Orders and thus qualified as a collateral attack.

[48] I recognize that an argument can be made that by taking the position that he had complied with the 2013 Orders before they were issued, Mr. Irwin was implicitly challenging the orders’ underlying basis. In my view, this argument is misguided because it fails to consider the result that the defence was trying to achieve. The argument was not advanced to demonstrate that the 2013 Orders were invalid. Instead, it was made as part of a defence that Mr. Irwin had complied with those orders.

[49] It is important to keep in mind the specific requirements of the 2013 Orders. The orders directed Mr. Irwin to “Obtain the required building permit or remove the unauthorized construction and restore the building/property to its former state.” For buildings 1, 2, 5, 6 and 7, Mr. Irwin did not argue that these orders should never have been issued and therefore had no legal force. Nor did he argue, for example, that these buildings did not need a building permit. Rather, his defence was that he complied with the precise requirements and demands of the orders. In other words, he had the required building permits.

[50] Many defences may be characterized as an implicit attack on the validity of an order because they may call into question some aspect of the order. However, courts should resist automatically characterizing these arguments as collateral attacks. Instead, courts should concentrate on the substance of the defence to determine whether it actually attacks the validity of the order and its legal effect. For example, in Toronto, Arbour J. recognized that the union’s position was an implicit attack on the correctness of the decision’s factual basis. Yet, she found that it was not a collateral attack because it did not attack the order itself and its legal effect.

[51] The same reasoning applies here. Mr. Irwin’s argument that he, in fact, had the permits demanded by the orders is “an implicit attack on the correctness of the factual basis of the [order] not a contest about whether that [order] has legal force”: Toronto, at para. 34.

[52] For these reasons, I would find that the defence regarding buildings numbered 1, 2, 5, 6 and 7 were not collateral attacks. Accordingly, it is unnecessary to undertake the Maybrun analysis concerning these convictions.

[53] I also see no error in the justice of the peace’s conclusion that the respondent had not proved Mr. Irwin’s guilt with regard to the convictions related to buildings numbered 1, 2, 5, 6 and 7. That finding was open to her on the record, which raised a reasonable doubt about whether permits had been issued for those buildings.

(ii) Buildings 3 and 4

[54] There remain the convictions related to buildings 3 and 4. Building 3 consists of three portable storage sheds. Mr. Irwin testified that they are "about a hundred square feet each," have no plumbing, and “there is a space between one of them.” Building 4 is used for boat storage.

[55] Unlike the other buildings, Mr. Irwin did not claim to have permits for these buildings. Instead, his position at trial was that no building permits were required for these structures. Mr. Irwin's testimony and position at trial were summarized by his counsel during closing submissions as follows:

Mr. Irwin’s evidence is that he applied for and building permits were issued with respect to five of the seven – five of the buildings on the property and that two structures did not receive application or permits. Structures that the evidence in terms of the applications was put in before you and Mr. Irwin’s position that permits were issued are with respect to buildings one, two, five, six and seven. The evidence with respect to building three, Your Worship, you’ll recall those were the three storage containers of less than 100 square feet with gaps between them, that was the evidence and that there is no plumbing in the – in that building. I’ve taken an extract, an excerpt, from the building code…

None of this applies to that structure which is being identified on the orders to comply as building three. So we do submit that there should be – that there is no requirement for compliance because no building permit is required.

The fourth structure, building four as it’s identified in the order to comply, is made up of two industrial trailers and a storage rack for boats, a boat rack. That certainly doesn’t sound like a building to me.

[56] I am of the view that the defence for buildings three and four is of a different nature than the defence advanced regarding the other buildings such that it qualifies as a collateral attack. In effect, Mr. Irwin’s defence is that these orders should have never been issued. This is a collateral attack, as it seeks to invalidate the building inspector’s orders in a proceeding whose specific object is not the reversal, variation, or nullification of the order: Wilson, at p. 599; Garland, at para. 71. Accordingly, the next question is whether the legislature intended to permit this type of a collateral attack.

(iii) Maybrun analysis: Buildings 3 and 4

[57] A review of the Maybrun factors is the proper analytical framework for determining whether a court can rule on the validity of an administrative order attacked collaterally in penal proceedings. As noted above, they are: (1) the wording of the statute under the authority of which the order was issued; (2) the purpose of the legislation; (3) the existence of a right of appeal; (4) the kind of collateral attack in light of the expertise or raison d’être of the administrative appeal tribunal; and (5) the penalty on a conviction for failing to comply with the order: Maybrun, at paras. 45-51.

Wording of the Statute

[58] The orders to comply were issued pursuant to s. 12(2) of the Act. This section states that:

12 (2) An inspector who finds a contravention of this Act or the building code may make an order directing compliance with this Act or the building code and may require the order to be carried out immediately or within such time as is specified in the order

[59] Mr. Irwin allegedly contravened s.8 of the Act – construction of a building without a permit.

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

[60] A “building” is defined precisely in s.1(1) of the Act. It means:

(a) a structure occupying an area greater than ten square metres consisting of a wall, roof and floor or any of them or a structural system serving the function thereof including all plumbing, works, fixtures and service systems appurtenant thereto,

(b) a structure occupying an area of ten square metres or less that contains plumbing, including the plumbing appurtenant thereto,

(c) plumbing not located in a structure,

(c.1) a sewage system, or

(d) structures designated in the building code;

[61] In my view, this factor weighs in favour of permitting collateral attacks in situations like Mr. Irwin’s. The statute indicates that inspectors can only issue orders like those under review here in very circumscribed situations: when the impugned structure meets the definition of “building” in the Act. The inspector has no discretion when applying these sections, nor is there any need to weigh broad policy goals.

[62] This makes this statutory scheme distinct from others like the one considered in Bird, where the Parole Board was empowered to impose conditions that it considered reasonable and necessary in order to protect society and facilitate successful reintegration. The fact that an inspector is required to simply apply a statutory scheme, which any court is capable of interpreting, does not suggest that the legislature sought to insulate an inspector against collateral attacks.

Purpose of the Act

[63] The Act’s purpose is to regulate building activity in Ontario and ensure that uniform standards of construction safety are imposed and enforced: Ingles v. Tutaluk Construction Ltd, 2000 SCC 12, [2000] 1 S.C.R., 298, at para. 23. Building permits serve this purpose. Permits are only issued if the building conforms with the Act, the building code, and other applicable laws: ss.8(2). While other sections of the Act empower inspectors to make emergency orders to deal with unsafe buildings (s.15.10), the building permit scheme can be seen as preventative in nature; permits ensure that buildings are constructed to code, so they do not endanger the public in the future. In my view, the laudable safety goals underlying the Act would be undermined if individuals could challenge orders to obtain a permit during penal proceedings by arguing that no permit is required. Individuals like Mr. Irwin may have a good faith but erroneous belief that no permit is required. If this issue is routinely resolved in penal proceedings, dangerous structures may exist on a property for years. It is in the interests of all involved, including the public who may be exposed to these structures, to resolve these questions expeditiously. An appeal under s.25 is the most expeditious route for resolving this dispute. Accordingly, this factor weighs against allowing a collateral attack in a penal proceeding.

Right of Appeal

[64] As noted above, s. 25 provides for a broad right to appeal an order to the Superior Court. While this weighs against permitting a collateral attack on the order, the court in Maybrun stressed that the existence of a right to appeal “cannot be decisive in itself”: Maybrun, at para. 34.

The Kind of Collateral Attack at Issue

[65] This factor focuses on whether the attack on an order requires considering factors that fall within an administrative appeal tribunal's specific expertise. Where an attack on an order is based on considerations that fall outside of the appeal tribunal’s expertise, this suggests that the legislature did not intend to give an appeal tribunal exclusive authority to rule on the order: Maybrun, at para. 50

[66] This factor weighs in favour of allowing the collateral attack. An appeal under s.25 of the Act lies to the Superior Court, not a specialized administrative tribunal. There is no reason to believe that the Superior Court has particular expertise in interpreting the Act relative to a penal Court.

Penalty Consequences

[67] This factor is neutral. While the maximum fine for an individual for a first offence is $50,000 and $100,000 for a subsequent offence, there is no minimum fine, nor is there any chance of imprisonment. Mr. Irwin was ultimately fined $100 per infraction.

Application: Maybrun factors

[68] I conclude that Mr. Irwin engaged in an impermissible collateral attack on the orders relating to buildings 3 and 4. While some factors suggest that an attack is permissible, I view the purpose of the Act and readily available appeal mechanisms as the decisive factors. The Act’s safety goals would be undercut if individuals could wait for penal proceedings to determine whether a building permit is required. By setting up a broad appeal mechanism, which must be exercised within 20 days of the order, the legislature signalled that expediency is a priority. Permitting collateral attacks of the type Mr. Irwin is making in this case would undermine this design, and is therefore contrary to legislative intent.

Part V- Disposition

[69] I would allow the appeal for convictions on the four orders relating to buildings 1, 2, 5, 6 and 7, set aside those convictions, and enter acquittals in their place. I would not disturb the convictions for the two orders relating to buildings 3 and 4. Since Mr. Irwin was fined $100 per count, I would reduce his total fine to $200.

[70] In oral argument, counsel for Mr. Irwin advised that he wanted to make written submissions regarding the appropriateness of a costs order and the quantum of such an order. If Mr. Irwin still wishes to do so in light of the mixed success on this appeal, I would order that: (i) Mr. Irwin shall have ten days from the date of these reasons to serve and file costs submissions of no more than five pages, plus a bill of costs; (ii) the respondent shall have ten days from the receipt of those costs submissions to serve and file its responding submissions, which also will not exceed five pages, plus a bill of costs; and (iii) Mr. Irwin will then have five days to file reply submissions, if he so chooses, of no more than three pages.

Released: “D.D.” December 9, 2020

“C.W. Hourigan J.A.”

“I agree. Doherty J.A.”

“I agree. G. Pardu J.A.”

[^1]: The justice of the peace also ruled on estoppel, laches, and officially induced error, which are not part of this appeal. [^2]: Those exceptions do not apply to the case at bar but include fraud in the manner in which the order was made: see Dale v. R. (1997) 1997 CanLII 4969 (FCA), 3 F.C. 235 (C.A.), at p. 10.