Court File and Parties

Ontario Court of Justice

Date: 2017-08-14

Court File No.: Brampton 3161-15-000961

In the Matter of: An appeal under s. 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

The Corporation of the City of Mississauga Appellant

— AND —

Ashley Developments Ltd. Respondent

Before: Justice J. W. Bovard

Heard on: January 27, 2017

Reasons for Judgment released on: August 14, 2017

Counsel:

• H. Bourgeois, for the Appellant
• M. Abbas, for Ashley Developments Ltd.

On appeal from: An acquittal by Justice of the Peace V. Fisher-Grant on June 28, 2016

Reasons for Judgment

Bovard J.:

Introduction

[1] On June 28, 2016, Justice of the Peace V. Fisher-Grant conducted the trial of the respondent on two charges under the Building Code Act, S.O., 1992, Ch. 23.

[2] The first charge was for the offence of constructing or causing to be constructed, construction of interior alterations without a permit having been issued by the Chief Official, contrary to s.8 (1) of the Building Code Act.

[3] The second charge was for failing to comply with an Order to Comply issued pursuant to s.12 (2) of the Building Code Act and thereby committing an offence under s. 36 (1) (b) of the Act.

[4] The trial court acquitted the respondent of both charges. The appellant only appeals the acquittal on the second charge.

Disposition

For the reasons given below, the appeal is dismissed.

The Facts

[5] In 2012, the respondent leased a commercial property to a tenant who intended to operate a grocery store. The lease states that the tenant is prohibited from performing any construction on the premises without the respondent's prior written permission. The lease also requires the tenant to obtain the necessary building permits and licenses to perform any construction on the property.

[6] On May 30, 2014, Mr. Ryan Russell, a building inspector, inspected the property and determined that contrary to s.8 (1) of the Building Code Act, there had been construction on the property without a permit having been issued by the Chief Official.

[7] On June 5, 2014, Mr. Russell issued an order to the respondent to comply with the Building Code Act by August 5, 2014. Mr. Russell served the respondent with the order by registered mail. The order stipulated that the respondent obtain a building permit for the construction, or remove the illegal construction and restore the property to its original condition. The respondent's manager, Mr. Dragutin Vukovic, received the order on June 10, 2014. He did not know about the illegal construction. He sent a letter to the tenant two days later. He told the tenant to either obtain a building permit or vacate the premises.

[8] Mr. Vukovic introduced the tenant to an architect to help him prepare the application for a building permit.

[9] On August 5, 2014, Mr. Russell checked to see if a building permit had been issued for the property, but none had. He checked the property and found that the alterations were still in place. The same day, he sent a letter to the respondent pointing out that it had not satisfied the order to comply and that legal action could be instituted without further notice. The letter states "We trust that this will not be necessary and that we have cooperation in this matter. Please contact our office for re-inspection when action required by the order has been completed or carried out". Mr. Russell included his contact information in case the respondent had any questions.

[10] By October 6, 2014, nothing had changed so Mr. Russell laid the charges regarding the illegal construction and failure to comply with his order.

[11] Mr. Vukovic had been keeping apprised of the situation on a regular basis but it still took three to four months to prepare the application for the building permit. On July 16, 2015 the respondent applied for the permit. The permit was issued on September 1, 2015.

[12] Justice of the Peace Fisher-Grant acquitted the respondent of both counts. With regard to the acquittal on the fail to comply charge, the subject of this appeal, she found that respondent was not engaged in a collateral attack of Mr. Russell's order and that respondent had exercised due diligence in complying with the order.

The Issues

[13] The appellant specified three grounds of appeal:

1. The Justice of the Peace erred in law by only considering the collateral attack in regards to section 8 (1) of the Building Code Act when it in fact is much more applicable to the 12 (2) charge.

2. Further the Justice of the Peace erred in law by accepting that the Respondent did not challenge the order as the Respondent believed that the order did not apply to them, hereby concluding that it was not a collateral attack per se.

3. The Justice of the Peace erred in law in determining that the Respondent had established a defence of due diligence when there was no evidence that the Respondent had taken all reasonable steps to ensure tenants were complying with the Lease Agreement or that the Respondent took all reasonable steps to comply with the order.

[14] The respondent's position as stated in its written submissions is that it "advances a four-tiered argument in support of its contention in this respect on a without prejudice basis to each other". I surmise that this means that these are alternative arguments.

1. First, this is not a case of collateral attack. (This broadly relates to the first and second grounds of appeal).

2. Second, that the defence of collateral attack against the order is available to Ashley in the circumstances of this case. (This also broadly relates to the first and second grounds of appeal).

3. Third, that Ashley established the defence of due diligence in the circumstances of the case. (This relates to the third ground of appeal).

4. Fourth, that Ashley complied with the order in the circumstances of the case.

The Standard for Appellate Review

[15] This is an appeal under s. 116 of the Provincial Offences Act (POA), which allows the prosecutor to appeal an acquittal.

[16] Section 121 of the POA sets out the court's jurisdiction on an appeal:

Where an appeal is from an acquittal, the court may by order,

(a) dismiss the appeal; or

(b) allow the appeal, set aside the finding and,

(i) order a new trial, or

(ii) enter a finding of guilt with respect to the offence of which, in its opinion, the person who has been accused of the offence should have been found guilty, and pass a sentence that is warranted in law. R.S.O. 1990, c. P.33, s. 121 ; 1993, c. 27, Sched.

[17] The case at bar is an appeal under Part lll of the POA. In R. v. Michaud, the Ontario Court of Appeal explained an appellate court's "procedural powers" under Part l and contrasted them with the court's appellate powers under Part lll.

[18] Michaud points out that s.135 (1) of the POA provides for an appeal to be taken from "an acquittal, conviction or sentence".

[19] Section 136 (2) indicates that such appeals are "conducted by means of a review". Section 136 (3) sets out the POA appeal court's "broad powers" in conducting this review.

[20] The court in Michaud agreed that it is generally true that "the scope of appeal under Part I is broader than an appeal of a conviction under an information laid under Part III, which is instead governed by ss. 116 to 134 of the POA".

[21] Michaud agreed with Duncan J. where he held in R. v. Gill that "Part I appeals [are] to be conducted as robust reviews, so that deference to the trial justice is limited to credibility findings:" Duncan J. held:

I am of the view that I must review the record before me and reach my own conclusion on the issue. It is not a matter of deferring to the trial justice's conclusion and intervening only if I conclude that her decision was unreasonable. To approach it in that way would be to effectively transpose the Part III provisions to Part I and II appeals when the legislature took pains to distinguish between the two. However, where findings of credibility are in issue, I should accept the trial justice's findings unless they are unreasonable. (Emphasis added)

[22] This jurisprudence indicates that there are different standards of appellate review for appeals under Part l and under Part lll of the Provincial Offences Act. Under Part l, the standard of review is a "broader" and more "robust review" of the trial decision. The appellate court may review the record and reach its own conclusions on the issues. It need only show deference to the trial court's reasonable findings of credibility.

[23] In contrast, the standard for appellate review for appeals under Part lll is more restricted. It is more akin to that explained in R. v. Antoniak, a criminal case (Over '80') in which Justice Garton said:

An appellate court is entitled to review the evidence, re-examining it and re-weighing it, but only for the limited purpose of determining if it is reasonably capable of supporting the trial judge's conclusion. The fact that there was another reasonable conclusion is an insufficient basis for appellate intervention. The appellate court is not to substitute its view for that of the trial judge, or to permit doubts it may have to persuade it to order a new trial. Due deference must be given to the trier of fact who actually saw and heard the witnesses. [Yebes v. The Queen (1987), 36 C.C.C. (3d) 417 at 430 (S.C.C.); R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.) at paras. 36, 37, and 49].

The Reasons for Judgment of Justice of the Peace V. Fisher-Grant

[24] Justice of the Peace Fisher-Grant found that the respondent was not attacking the validity of the order to comply, so her determination on both counts was "simply one of statutory interpretation".

[25] After carefully reviewing a number of pertinent cases, she acquitted the respondent on the charge of "constructing or causing to be constructed … interior alterations without a permit having been issued … by the Chief Official, contrary to s. 8 (1) of the Building Code Act".

[26] Her reason was "Due to the limiting language of the lease, and no other evidence of tacit approval, I find that Ashley did not "cause" the alterations on the property". Furthermore, she found that there was "no evidence that Ashley would have been reasonably expected to have authorized the construction given the lease provisions and their efforts at compliance once they received the Order to comply".

[27] In addition, Justice of the Peace Fisher-Grant found that the respondent exercised due diligence with regard to both charges. Therefore, on that basis as well, it was not guilty of the charge of construction without a permit or of the charge of failing to comply with Mr. Russell's order.

The Position of the Appellant

[28] The appellant only appeals Justice of the Peace Fisher-Grant's acquittal on the fail to comply charge.

[29] The appellant argues that since the respondent's position is that the order to comply does not "apply" to them, it is collaterally attacking the validity of the order itself. Therefore, the Justice of the Peace erred in not considering this as a collateral attack on Mr. Russell's order.

[30] The appellant asserts that "when somebody is given an Order to Comply, they have a right of appeal to the building commission".

[31] Section 24 of the Building Code Act states:

24 (1) This section applies if there is a dispute,

(a) between an applicant for a permit, a holder of a permit or a person to whom an order is given and the chief building official, a registered code agency or an inspector concerning the sufficiency of compliance with the technical requirements of the building code; (Emphasis added)

(1.1) A party to the dispute may apply to the Building Code Commission to resolve the issue.

[32] In addition, there are other avenues for review and appeal that I will discuss below.

[33] The appellant relies on R. v. Consolidated Maybrun Mines Ltd. That case concerned an order made by the Director of the northwest region of the Ministry of the Environment pursuant to the Environmental Protection Act. The order required the mining company to take specific steps to clean up an abandoned mining site and to prevent the continued spread of contaminants.

[34] The company took a few minor corrective steps but "basically elected to disregard the order". The company had the right to appeal the order to the Environmental Appeal Board, but they did not avail themselves of this right, nor did they apply for judicial review of the order.

[35] The Ministry charged the company with refusal to comply with the order. At trial, the company defended the charge by "challenging the validity of the order both directly, arguing that the Director did not have reasonable and probable grounds to make it, and indirectly, arguing that they exercised due diligence in refusing to comply with it". The trial court convicted the company. It appealed to the Ontario Court of Appeal.

[36] The Court of Appeal stated that there is no rule that either permits "any kind of attack against administrative orders" or prohibits collateral attacks altogether.

…the Supreme Court of Canada has recognized that the rule against collateral attack is flexible, not absolute. The issue of when a collateral attack against an administrative order is permissible also requires a flexible approach. The need for flexibility is arguably stronger for administrative orders than for court orders. This is because regulatory regimes differ widely. And it is because the public interest in effective regulation must be balanced against the right of individuals to fairly defend themselves in enforcement proceedings.

[37] The Court of Appeal found that the mining company was engaging in a collateral attack. In the circumstances of the case before them they held that "to allow the appellants on a charge of non-compliance to attack the Director's reasonable and probable grounds for making the order would undermine the scheme of environmental protection established under the E.P.A. and would also be inconsistent with the legislature's intent". They dismissed the company's appeal. The company appealed to the Supreme Court of Canada.

The Supreme Court upheld the Ontario Court of Appeal's decision. Justice L'Heureux-Dubé framed the issues as follows:

1. May persons charged with failing to comply with an order issued under the Environmental Protection Act collaterally attack the validity of the order by way of defence after failing to avail themselves of the appeal mechanisms provided by the Act?

2. If so, was the order issued against the appellants invalid in whole or in part?

[38] She said that "the question that arises is … whether a penal court, which is not necessarily a superior court, can determine the validity of an administrative order when the case before it concerns primarily a charge of a penal nature".

[39] Justice L'Heureux-Dubé explained that "the question of collateral attacks clearly arises precisely when the relevant statute provides for no right of appeal to the court responsible for trying the charge … the question is, accordingly, the extent to which, where no right of appeal confers express jurisdiction on the trial judge, the rule of law enables a penal court, here a provincial court, to consider the validity of an administrative order where a person is charged with failing to comply with such order".

[40] After reviewing the law, Justice L'Heureux-Dubé pointed out that "the existence of a right to appeal the order on which the penal charges were based appears to have been an important, if not decisive, factor … while this factor cannot be decisive in itself, it is nonetheless a key element of the analysis".

[41] In paragraph 39, Justice L'Heureux-Dubé agreed with the House of Lords decision in R. v. Wicks that "The question must depend entirely upon the construction of the statute under which the prosecution is brought".

The Position of the Respondent

[42] The respondent's argument as expressed in its submissions to Justice of the Peace Fisher-Grant at trial was and still is that,

s. 8 (1) of the Building Code Act does not apply to the defendant and therefore the charge against it is not in accordance with the law. For that reason the defendant has not committed the actus reus that is required for his culpability in this issue (sic). As a result, the Order to Comply also does not apply to it in terms of the case laws (sic) and the law on the issue.

Analysis

Is the Respondent Engaging in a Collateral Attack of Mr. Russell's Order to Comply?

The Definition of a Collateral Attack

[43] In R. v. Wilson, the Supreme Court of Canada stated that "a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment".

[44] The respondent argued at trial it should not be found guilty of the charge under s.8 (1) because it was only the landlord and it did not cause or assist in bringing about the construction on its property, or even know that it was occurring; it was all the tenant's doing. This argument succeeded at trial. Justice of the Peace Fisher-Grant acquitted the respondent of the charge under s. 8 (1).

[45] But as indicated above, the respondent went further and argued that since it could not be found guilty of the charge under s. 8 (1), Mr. Russell's order to comply with that order did not apply to it. Consequently, it could not be found guilty of failing to comply with the order either.

[46] Pursuant to the definition in Wilson, I find that this is clearly a collateral attack on Mr. Russell's order. I find support for this conclusion in the following jurisprudence.

[47] In Regina v. J.L.S., the issues before the British Columbia Court of Appeal were whether a Youth Court judge had the jurisdiction under the Young Offenders Act to bind a young person with a recognizance under s. 810 of the Criminal Code. And secondly, whether the rule against collateral attack prevented the young person from challenging the validity of the recognizance on jurisdictional grounds at his trial for a breach of the recognizance.

[48] The Court of Appeal found that "A Youth Court judge does not have jurisdiction under the Young Offenders Act to bind a young person with a recognizance under s. 810 of the Criminal Code", and further that "The rule against collateral attack prevents a young person charged with a breach of a s. 810 recognizance from challenging, on the trial of the charge, the validity of the recognizance on jurisdictional grounds".

[49] In arriving at this conclusion, in paragraph 34 the court cited the Supreme Court of Canada's decision in R. v. Litchfield:

This rule holds that "a court order, made by a court having jurisdiction to make it", may not be attacked "in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment" (Wilson v. The Queen, [1983] 2 S.C.R. 594, per McIntyre J., at p. 599). The lack of jurisdiction which would oust the rule against collateral attack would be a lack of capacity in the court to make the type of order in question, such as a provincial court without the power to issue injunctions. However, where a judge, sitting as a member of a court having the capacity to make the relevant type of order, erroneously exercises that jurisdiction, the rule against collateral attack applies. (Citations omitted) (Emphasis added)

[50] The court made the following pertinent observation for the case at bar:

… the distinction between errors of law or fact on the one hand and errors of jurisdiction on the other is sometimes difficult to draw but, in the context of the rule against collateral attack, the distinction may be drawn by asking whether the judge who had the order under attack had the general power to make the type of order in question, even if he or she arguably should not have made the order in the particular circumstances of the case under consideration.

While a Youth Court judge cannot order a young person to enter into a recognizance under s. 810 of the Criminal Code, Youth Court judges do have the power to place young persons on recognizances. Clearly they do so in the context of bail applications and s. 49 of the Young Offenders Act makes explicit reference to "a recognizance binding a young person". In my view, the recognizance order made by Judge Lemiski falls into the category of an erroneous exercise of jurisdiction and, as such, would be immune from collateral attack. The proper forum in which to attack the order placing the young person on a recognizance was an appeal from the original order, not in proceedings commenced for breach of recognizance. (Emphasis added)

[51] Applying this jurisprudence by way of analogy to the case at bar, I find that Mr. Russell clearly had the jurisdiction to issue the order to comply. Section 12 (2) of the Building Code Act states:

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. 1992, c. 23, s. 12 (2).

[52] The respondent's defence to the count under s. 8 (1) was that it did not "cause" or assist in any way the construction to occur. Justice of the Peace Fisher-Grant agreed with the respondent and acquitted the company of this charge. The appellant apparently agrees with this result because it did not appeal the acquittal on this count.

[53] Justice of the Peace Fisher-Grant's reasons for the acquittal are important for the purpose of the collateral attack issue.

[54] Regarding whether Mr. Russell's order to comply applied to the respondents, Justice of the Peace Fisher-Grant reviewed the evidence, the applicable section of the Building Code Act, the jurisprudence that the parties submitted to her, and the lease between the respondent and its tenant.

[55] Section 8 (1) of the Building Code Act states:

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. 1992, c. 23, s. 8 (1); 1997, c. 30, Sched. B, s. 7 (1).

[56] Based on a careful review of s. 8 and the jurisprudence, Justice of the Peace Fisher-Grant concluded that in the circumstances of the case at bar the Building Code Act did not apply to the respondent "as landlord". Although the appellant argued for a different interpretation of the jurisprudence, it does not assert that Justice of the Peace Fisher-Grant erred in her interpretation of the case law.

[57] In the circumstances of the case at bar and considering Justice of the Peace Fisher-Grant's reasons for judgment, I find that the acquittal of the respondent on the s. 8 (1) charge casts Mr. Russell's order to comply into "the category of an erroneous exercise of [his] jurisdiction". A reasonable implication of Justice of the Peace Fisher-Grant's acquittal is that Mr. Russell should have charged the tenant with the infraction under s. 8 (1), not the respondent.

[58] The respondent argued that since it had a defence to the charge under s. 8 (1), or as the respondent put it, the charge did not "apply" to it, it did not have to comply with Mr. Russell's order. Consequently, at trial for failing to comply with the order it was entitled to mount the defence that the order did not apply to it.

[59] J.L.S. found that erroneous exercises of jurisdiction by someone who has the authority to make orders like the one in question are "immune from collateral attack". But J.L.S. did not consider the Supreme Court's decision in Maybrun Mines.

[60] In Maybrun Mines, Justice L'Heureux-Dubé held that,

… what this Court must do is determine the forum in which the attack should be made, assuming for discussion purposes that the order does in fact contain a jurisdictional defect. Where the legislature has established an administrative appeal tribunal, it must be asked whether it intended that tribunal to have jurisdiction, to the exclusion of a penal court, to determine the validity of the impugned order. For this purpose, the nature of the collateral attack is, of course, relevant to determine not whether it raises an excess or lack of jurisdiction on the part of the agent or official who issued the administrative order, but rather to determine whether the attack involves considerations that fall within the jurisdiction conferred by statute on the appeal tribunal. Where the appropriate forum must be determined, it is, indeed, the jurisdiction of the appeal tribunal that is at issue rather than that of the Director, even though it is the Director's jurisdiction that is attacked.

Thus, where an attack on an order requires the consideration of factors that fall within the specific expertise of an administrative appeal tribunal, this is a strong indication that the legislature wanted that tribunal to decide the question rather than a court of penal jurisdiction. Conversely, where an attack on an order is based on considerations which are foreign to an administrative appeal tribunal's expertise or raison d'être, this suggests, although it is not conclusive in itself, that the legislature did not intend to reserve the exclusive authority to rule on the validity of the order to that tribunal. This analysis must be conducted in light of the specific characteristics of each administrative scheme. An approach, such as the one suggested by the Court of Appeal, aimed at establishing a general rule relating to the nature of the attack does not recognize the importance that must be given to the legislature's intention.

[61] However, Justice L'Heureux-Dubé adopted Justice Laskin's "five factors to be considered in determining whether a court can rule on the validity of an administrative order collaterally attacked in penal proceedings" subject to her comments on the fourth factor.

Laskin J.A., writing for the Court of Appeal, proposed five factors to be considered in determining whether a court can rule on the validity of an administrative order collaterally attacked in penal proceedings: (1) the wording of the statute from which the power to issue the order derives; (2) the purpose of the legislation; (3) the availability of an appeal; (4) the nature of collateral attack; and (5) the penalty on a conviction for failing to comply with the order.

Subject to the comments below on the fourth factor, this approach seems to me to be satisfactory, provided, however, that it reflects a general approach aimed at determining the legislature's intention as to the appropriate forum. From this perspective, the factors set out above are not independent and absolute criteria, but important clues, among others, for determining the legislature's intention. In doing this, it must, inter alia, be presumed that the legislature did not intend to deprive citizens affected by government actions of an adequate opportunity to raise the validity of the order. The interpretation process must, therefore, determine not whether a person can challenge the validity of an order that affects his or her rights, but whether the law prescribes a specific forum for doing so.

[62] Justice L'Heureux-Dubé's comments on the fourth factor were to "reformulate the fourth factor … to take into account the nature of the collateral attack in light of the appeal tribunal's expertise and raison d'être".

[63] Next, I will discuss the five factors as they pertain to the case at bar.

(1) The Wording of the Statute from Which the Power to Issue the Order Derives

[64] Section 12 (2) of the Building Code Act states:

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. 1992, c. 23, s. 12 (2).

[65] This section clearly empowered Mr. Russell who is an "inspector" under the Act, to make "an order directing compliance" with the Act or the building code in this case.

(2) The Purpose of the Legislation

[66] A perusal of the Building Code Act reveals that its purpose is to regulate all of the myriad activities that are involved in building in Ontario for the purpose of promoting order, fairness, predictability and safety in building.

[67] In order to accomplish this purpose it established a detailed regimen of permits and licences that builders must obtain in order to undertake building projects. It also provides for inspectors and other officials on whom it confers powers to inspect and direct persons and companies that are involved in building projects.

[68] The Act also gives inspectors the power to issue orders that direct those involved in building projects to comply with the Act and its regulations. In addition, it gives the inspectors the power to charge persons who do not comply with the Act or their orders.

(3) The Availability of an Appeal

[69] The Building Code Act provides a review procedure for orders like the one issued by Mr. Russell. The provisions are the following:

• s. 24 – an application for "dispute resolution" to the Building Code Commission;
• s. 25 – an appeal to the Superior Court of Justice;
• s. 26 – an appeal from the decision of the Superior Court to the Divisional Court.

[70] The Building Code Act is comprehensive in the procedural scheme that it creates to review orders made under the Act. Germane to the case at bar, it provides for an application to the Building Code Commission to resolve a dispute between "a person to whom an order is given and … an inspector concerning the sufficiency of compliance with the technical requirements of the building code". This would be an appropriate forum for disputes that involve technical issues.

[71] The Act also provides for a review of orders by the courts. This indicates that the legislature contemplated that there may be challenges to orders that involve legal questions that would be outside of the expertise of the Building Code Commission. The case at bar is an example of such a case. The order to comply itself makes reference to sections 24 and 25.

(4) The Nature of Collateral Attack

[72] The nature of the collateral attack is essentially that Mr. Russell charged the wrong person under s.8 (1). He should have charged the respondent's tenant, not the respondent. Therefore, he issued his order to comply to the wrong person. He should have issued it to the tenant instead of to the respondent.

[73] As stated above, I find that this argument should be characterized as one of an alleged erroneous exercise of jurisdiction. It is a legal argument rather than one that involves technical issues that would require expertise that the Building Code Commission would have. This distinguishes the case at bar from Maybrun Mines.

(5) The Penalty on a Conviction for Failing to Comply with the Order

[74] The penalties for failing to comply with the order are the following:

• s. 14 - A Stop Work Order can be issued;
• s. 36 (4) – For a corporation, a fine up to a maximum of $100,000 for a first offence and $200,000 for a subsequent offence.

[75] The respondents did not avail themselves of any of the options to apply for review or appeal of Mr. Russell's order to comply. Instead, they tried to help their tenant to comply with the order. When that did not stave off being charged, they went to trial and attacked the validity of the charge under s.8 (1) and of Mr. Russell's order to comply, saying that it did not apply to them because they were wrongly charged under s. 8 (1).

[76] I find that rather than engage in the collateral attack at trial of Mr. Russell's order to comply, the respondent should have followed one of the review procedures provided by the Legislature's comprehensive review and appeal scheme.

[77] The Legislature clearly indicated by establishing this procedure that its intention was that persons that dispute orders issued by inspectors under the Building Code Act should follow one of the options provided in the Act for the review or appeal of such orders, rather than wait until trial to attack the order. By establishing this regime the Legislature ensured that it did not "deprive citizens affected by government actions of an adequate opportunity to raise the validity of the order".

Disposition Regarding the Issue of Collateral Attack

[78] I find that the Justice of the Peace erred in finding that the respondent was not engaged in a collateral attack of Mr. Russell's order.

[79] I find further that the collateral attack was not justified because the Building Code Act provides for ample avenues of review and appeal that the Legislature intended be followed by those who wish to dispute or appeal an order made under the Act. These review and appeal procedures contemplate and allow for the review and appeal of both technical and legal issues. Therefore, the respondent's collateral attack of Mr. Russell's order at trial was out of place and was not a tenable defence to the charge.

[80] I grant the appellant's appeal in this respect, but this does not end the matter. Justice of the Peace Fisher-Grant also found the respondent not guilty of failing to comply with Mr. Russell's order on the basis that the respondent exercised due diligence.

Due Diligence

Position of the Appellant

[81] The appellant argues that,

The Justice of the Peace erred in law in determining that the Respondent had established a defence of due diligence when there was no evidence that the Respondent had taken all reasonable steps to ensure tenants were complying with the Lease Agreement or that the Respondent took all reasonable steps to comply with the order. (Emphasis added)

[82] This ground of appeal considers two time periods: the one before Mr. Russell issued his order and the one after he issued the order.

[83] For the purpose of this appeal, the crucial time to examine is the time after Mr. Russell issued the order. In that sense the respondent's efforts to ensure that from the time it entered the lease the tenant was complying with the lease are irrelevant.

[84] The appellant argued that the length of time that it took the respondent to apply for a building permit precludes a finding of due diligence.

Position of the Respondent

[85] The respondent argues that it exercised due diligence by the swift action that it took to warn the tenant to either obtain a building permit or vacate the premises. In addition, the respondent introduced the tenant to an architect to help him apply for a building permit. The respondent also monitored the situation until the tenant obtained the building permit.

Did the Respondent Exercise Due Diligence?

[86] Justice of the Peace Fisher-Grant properly stated the test for due diligence and the onus of proof.

Due diligence has two branches. The defendant is only required to satisfy one of them. The first branch, applicable herein, requires proof that the defendant took all reasonable care to avoid the commission of the prohibited act. The second branch requires proof that the defendant reasonable believed in a mistaken set of facts which, if true, would render the act or omission innocent: R. Sault Sainte Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.); R. v. Pontes (1995), 100 C.C.C. (3d) 353 (S.C.C.).

The defendant is required to prove the defence of due diligence on a balance of probabilities. See R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 (S.C.C.); R. v. Ellis-Don Ltd., [1992] 1 S.C.R. 840 (S.C.C.)

[87] She found that the respondent discharged its onus by acting with alacrity to help the tenant satisfy the order to comply. She noted that the evidence was that the respondent "immediately sent a letter to the tenant to obtain a permit or vacate. In addition, the respondent "assisted the tenant with retaining an architect and followed up with the architect several times until the appropriate permit was obtained."

[88] Justice of the Peace Fisher-Grant concluded that upon receiving Mr. Russell's order to comply "the prompt response of Mr. Vukovic to the letter in sending out a letter to the tenant, buttressed by his follow through with the architect and tenant to ensure compliance is sufficient to meet the due diligence defence standard on a balance of probabilities".

[89] I may have come to a different conclusion than Justice of the Peace Fisher-Grant because it took a long time for the respondent to apply for the building permit. Mr. Russell waited until October 6, 2014 until he laid the charges. The respondent applied for the permit on July 16, 2015. There was no clear explanation in the evidence why it took so long.

[90] I find that the evidence was scanty regarding the actions of the respondent in helping its tenant comply with Mr. Russell's order. However, in light of the respondent's global actions to respond to the order to comply I cannot say that the evidence is not "reasonably capable" of supporting her conclusion and her acquittal of the respondent on this basis.

[91] I am mindful of Justice Garton's admonition in Antoniak that "The fact that there was another reasonable conclusion is an insufficient basis for appellate intervention. The appellate court is not to substitute its view for that of the trial judge, or to permit doubts it may have to persuade it to order a new trial".

Belated Compliance with Mr. Russell's Order to Comply

[92] Counsel for the respondent raised the issue of "belated compliance" with Mr. Russell's order. He argues that the respondent complied with the order eventually, and on that basis was not guilty of failure to comply with the order.

[93] Counsel put forth this argument in his factum in paragraph 58:

Moreover, even if the compliance is held to be made belatedly, then on the authority of Consolidated Maybrun case (sic), Ashley [the respondent] was still not guilty of the charge of no-compliance. In that case, at the trial level, the court found the defendant not guilty on the count of belated compliance with an order. The Crown appealed this finding. However, the Crown's appeal was dismissed on this issue and the acquittal confirmed on appeals.

[94] I find this submission confusing. In Consolidated Maybrun Mines, there was no count of "belated compliance with an order". The charges in that case were "failure to comply with a director's order". In addition, counsel did not provide any references in the trial judgment or in the appeals to Ontario Court of Appeal or to the Supreme Court of Canada where "the Crown's appeal was dismissed on this issue and the acquittal confirmed on appeals".

[95] I performed a word search of all three judgments and did not find any reference to "belated". As a result of this and of counsel's failure to refer me to where in these judgments the court dealt with "belated compliance", I cannot adjudicate on this issue.

[96] However, as a result of my finding regarding due diligence it may not be necessary to consider the issue of "belated compliance" with the order in any case.

Summary of Rulings

Collateral Attack

[97] I find that Justice of the Peace Fisher-Grant erred in finding that the respondent was not engaged in a collateral attack on Mr. Russell's order to comply. Furthermore, I find that it was an impermissible collateral attack.

Due Diligence

[98] I find that although I may have reached a different conclusion regarding whether the respondent exercised due diligence in complying with Mr. Russell's order, the evidence is "reasonably capable" of supporting Justice of the Peace Fisher-Grant's conclusion that the respondent exercised due diligence and her acquittal of the respondent on this basis.

[100] Therefore, I dismiss the appeal.

Released: August 14, 2017

Signed: Justice J.W. Bovard