Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 06 05 COURT FILE No.: 21 - 306

IN THE MATTER OF an appeal under subsection 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended;

BETWEEN:

THE CORPORATION OF THE TOWNSHIP OF SOUTH GLENGARRY Respondent

— AND —

CLAUDE LAPORTE Appellant

Before: Justice D.A. Kinsella

Heard on: April 12, 2023 Reasons for Judgment released on: June 5, 2023

Counsel: Spencer Putnam, counsel for the Respondent James Moak, agent for the Appellant Claude Laporte

On appeal from the conviction by Justice of the Peace Winchester on October 6, 2022.

KINSELLA J.:

Overview

[1] Mr. Laporte was charged with failing to comply with an Order to Comply made pursuant to section 12(2) of the Building Code Act. There was a brief trial before the Justice of the Peace, with evidence being heard on August 24, 2022 and a ruling made October 6, 2022. Mr. Laporte appeals his conviction.

[2] Mr. Moak, who represented Mr. Laporte at his trial, alleges the following grounds of appeal:

i. The learned Justice of the Peace misapprehended the evidence of Mr. Laporte when she found that he had used the word “promptly” in his testimony;

ii. The learned Justice of the Peace erred in her interpretation of the words “build”: and “owner” as defined in the Building Code Act and in doing so was incorrect in her finding that Mr. Laporte was the building “owner”;

iii. The learned Justice of the Peace erred by improperly inserting herself into the proceedings and in raising arguments not raised by the prosecutor, specifically the principle of a collateral attack on a court order; and

iv. The learned Justice of the Peace erred in her consideration of the defence of officially induced error

Summary of facts

[3] The facts in this case can be summarized simply. These facts were largely not in dispute during the trial.

[4] Claude Laporte is the owner of a vacant waterfront property located at 6324 Murray Court in Bainsville, Ontario, which is in the Township of South Glengarry. The legal description of the property is Lancaster Concession 1 Part Lot 17 Survey 14 R63-6437 Part 2.

[5] On January 4 2021 a municipal law enforcement was advised that a dwelling home was being placed on the lot and went out to investigate, since she could find no record of a permit being issued. She arrived and observed a large, prefabricated dwelling house being placed on the lot by cranes. The photos she took were filed as exhibit 4. She spoke to a male on the scene who told her he was responsible for the house on the lot. She explained he would need to contact the municipality regarding the permit process and which permits would be required for this work. She later learned that male’s name was William Beattie. That male also told her that the structure would remain on that lot until it could be transferred to another lot.

[6] She then reported the matter to her supervisor, the Chief Building Official. That person, Gary Poupart, who then went to the same property on January 6, 2021. He observed a rather large building sitting on steel supports off of the ground.

[7] As a result of his observations and those of his enforcement officer, on January 12, 2021 he issued an order pursuant pursuant to s. 12(2) of the Building Code Act. That order, filed as exhibit 5 at trial, contains the following information:

i. The order applied to the property located at Lancaster Concession 1 Part Lot 17 Survey 14 R63-6437 Part 2;

ii. The order was issued to Claude Laporte;

iii. The order notes that a contravention of s. 8(1) of the Building Code Act has been found, specifying that the property owner has caused or permitted construction without a permit, namely by having moved a building onto a vacant lot;

iv. The order notes that the owner must submit a complete building permit application prior to February 15 2021 and obtain the required permit, which should include all necessary approvals from the Raisin River Conservation Authority. It adds that the owner shall not continue with construction until the required permit has been obtained;

v. It further provides instructions on how the owner can appeal the order to the Superior Court of Justice pursuant to s. 25 of the Building Code Act or can appeal it to the Building Code Commission concerning the “sufficiency of compliance with the technical requirements of the Building Code, pursuant to s. 24 of the Building Code Act; and

vi. The order provided Mr. Poupart’s name and his contact information.

[8] Mr. Poupart testified that the order was served personally on Mr. Laporte as well as being sent by registered mail. There was no dispute at trial that Mr. Laporte had received the order. At the time the order was served, Mr. Poupart had a discussion with Mr. Laporte and agreed that Mr. Laporte likely told him that the structure was not going to be staying on his property.

[9] Mr. Poupart testified that, as of the date of his retirement (April 2021), Mr. Laporte had not taken any steps to appeal with the order nor comply with the requirements to get the requisite permits. His successor also testified to the same. As of the date of the trial in August 2022 the building remained on the same lot and no permits had been obtained.

[10] Mr. Laporte testified. Essentially his testimony, confirmed by his witness, was that the structure did not belong to him, but he had allowed his property to be used to off-load the structure with the intention that it would be moved to another lot. There were apparently difficulties with moving the residence. He testified that it was his belief that the structure was to be moved “imminently” which is why he did not believe he needed to apply for any permits. He further testified that Mr. Poupart told him he could not do anything relating to the structure until he got a permit.

Standard of Review

[11] This proceeding was commenced by an information laid under Part III; as such this appeal is governed by section 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”). Unlike an appeal under section 135 of the POA, which is conducted by means of review and uses very broad language, section 116 limits when a court may intervene.

[12] Pursuant to s. 120, this court may only allow an appeal if it is satisfied that any one or more of the three grounds have been met:

i. the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

ii. the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

iii. on any ground, there was a miscarriage of justice.

[13] The wording of that section is identical to the appellate provisions in s.686(1)(a) -- (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 and so cases considering the scope of appellate review in relation to s.686 are of assistance in this context.

[14] An appellate court is entitled to review the trial evidence, re-examine it and re-weigh it, but only for the limited purpose of determining if it can support the conclusion of the Justice of the Peace: see R. v. Burns, [1994] 1 S.C.R. 656, [1994] SCJ No 30, at paragraph 14. The question that must be asked is whether the Justice of the Peace could reasonably have reached the conclusion she did on the evidence heard at trial. Provided that threshold test is met, the appellate court is not to substitute its view for that of the Justice of the Peace, nor permit any doubts it may have to cause it to order a new trial: Burns, supra at paragraph 15.

[15] The appellate court must give considerable deference to the findings of fact made by a Justice of the Peace at trial and the inferences drawn from those facts: see R. v. Biniaris, 2000 SCC 15, at paragraph 24. To overcome this deference, the appellant must demonstrate that the findings are tainted by some legal error, are the result of a material misreading of the evidence or are unreasonable: see R. v. Le, 2018 ONCA 56 at paragraph 8.

Role of the Presiding Justice

[16] Our Canadian justice system, built on the mode of adversarial proceedings, entrusts the parties with the task of structuring their respective cases and presenting within a largely autonomously governed procedural framework. The court’s neutrality, an essential aspect of this system, largely depends on the ability of the presiding justices to remain “above the dispute”, allowing the parties to exercise discretion over what evidence to introduce, the method of presentation, and the arguments to be advanced.

[17] However, evolving jurisprudence has rejected the notion that a trial justice is “little more than a referee who must sit passively while counsel call the case in any way they please”: see R. v. Felderhoff, [2003] O.J. No. 4819 (CA), at paragraph 40.

[18] A trial judge has an inherent authority to control the court’s process. This power must be used with caution. It is not intended to alter the judge's essential neutrality or to prevent the parties from pleading their cases.

[19] Exercising this authority often requires intervening in proceedings. The fundamental question when evaluating interventions is whether they led to an unfair trial. For example, advising parties of relevant case law is not inappropriate: see R. v. Hajivasilis [2012] O.J. No. 589 (CJ).

[20] Dismissing a matter based on case law, without allowing the parties the opportunity to present evidence or argue alternate case law, can result in a lack of procedural fairness: see R. v. Evans [2010] O.J. No. 468 (SCJ).

[21] Where a justice proposes to intervene, it is critical that the parties be invited to make submissions (Felderhoff, supra, at paragraph 45).

Collateral Attack on Court Orders

[22] The rule against collateral attack on court orders prohibits an attempt to challenge an order made in another separate legal proceeding. To do so is a "collateral attack" and is not permitted in a subsequent prosecution for breach of the order, subject to certain exceptions.

[23] This principle is not limited to “court” orders but can include administrative orders. In R. v. Bird, 2019 SCC 7, [2019] S.C.J. No. 7 the SCC set out that, in deciding if a person charged with breaching an administrative order can collaterally attack that order in, a court should consider five non-exhaustive factors:

i. The wording of the statute;

ii. The purpose of the legislation;

iii. The existence of a right of appeal. This factor refers not only to an actual right of appeal under the legislation but also allows for a consideration of other effective mechanisms or forums for challenging the order;

iv. The kind of collateral attack taking into consideration the purpose and expertise of the tribunal. This factor examines whether the nature of the collateral attack involves considerations that fall within the expertise of the tribunal or which the tribunal was established by the legislature to address; and

v. The potential penalty upon conviction. If the penalty is relatively minor, like a fine, it is unlikely that a collateral attack will be permitted: see R. v. Consolidated Mayburn Mines Ltd., [1998] 1 S.C.R. 706

[24] In R. v. Hawkins Bros. Fisheries Ltd., 2005 NBQB 472, the New Brunswick Court of Appeal in applying these factors found the judicial review procedure should have been pursued by the accused rather than ignoring an administrative order and attacking its validity in a subsequent prosecution. At paragraph 27 the court stated:

. . . I therefore find that in enacting these narrow and specific limitations on the right to challenge a ministerial order, it was the intention of the legislature that any such attack be undertaken in a timely fashion. Such a procedure is provided for in the Rules of Court for judicial review in the Court of Queen's Bench. By contrast, the timing of an attack on an order in a penal proceeding is uncertain at best and, in my view, more likely than not to be prolonged given the safeguards and attendant procedural delays which commonly occur in penal proceedings.

Grounds of Appeal

Misapprehension of the evidence

[25] I will address the first two grounds of appeal under this same heading. Given the limited role that I have as an appellate court in assessing findings of fact, I will be brief.

[26] On the issue of misapprehension of the Mr. Laporte’s testimony, the criticism is that the learned Justice of the Peace was wrong in her ruling when she found that Mr. Laporte testified that he used the word “promptly”. Her Worship was wrong; he did not use the word “promptly” but instead said “imminently”. That is, in my view, a distinction without a difference.

[27] In response to the submission by Mr. Moak that the learned Justice of the Peace erred in her interpretation of the words “build” and “owner” as defined in the Building Code Act, given my findings (set out below) concerning the principles of collateral attack on court orders, I think this issue is largely moot. However, if I am wrong on that, I am nonetheless satisfied that the findings made by Her Worship were capable of being made on the evidence before her.

Improper Interference by the Justice of the Peace/Collateral Attack on Court Orders

[28] In his submissions, Mr. Moak submits that the learned Justice of the Peace erred in raising an issue in her ruling that had not been raised by the prosecutor. Although not expressly stated by him, the logical inference from that is that the defence was not permitted to make submissions on this. If true, that would be a valid ground for appeal.

[29] The transcript, however, does not support this submission. It was clear at the outset of the trial that the prosecutor was taking the position that the trial could only be about whether Mr. Laporte had failed to comply with the order issued under the Building Code Act. She submitted that the learned Justice of the Peace had no jurisdiction to deal with the validity of the order itself. Mr. Moak did not object to this characterization.

[30] The prosecutor also repeated this assertion during her closing submissions, stating “as advised on [sic] the outset of these proceedings, the sole issue before the Court today is whether or not the defendant complied with the order. As stated, the Court doesn’t have jurisdiction to determine the validity of the order itself.”

[31] In his submissions at trial, Mr. Moak does not directly address this although he does make arguments which suggest he is challenging the validity of the order, as well as advancing the defence of officially induced error.

[32] In his submissions on appeal, Mr. Moak suggests that the learned Justice of the Peace did not accept the submission of the prosecutor at the outset that the validity of the order itself was not a triable issue because her Worship had said that “the context was part of it [the trial]”. That comment, made in response to a Crown objection over a line of defence cross-examination, cannot in any reasonable way to be construed as standing for the proposition that the learned Justice of the Peace was agreeing that the validity of the order was an issue to be decided at trial.

[33] While it is true that the prosecutor never used the phrase “collateral attack on a court order” it is abundantly clear that was the legal principle she was referencing in her opening and closing submissions.

[34] As for Mr. Moak’s submissions on appeal that that principle does not apply since the order at question was not a court order, the case law clearly supports that the principle can apply to administrative orders.

[35] Does the principle apply to this administrative order? Reviewing the factors enunciated in R. v. Bird, 2019 SCC 7, supra, the answer is a resounding yes.

[36] The wording and purpose of the statute make it clear that the intent of Parliament in enacting the legislation was to create a comprehensive mechanism to address building issues and grant municipalities the power to manage those issues.

[37] The legislation contains a robust method for appealing building code orders including a right of appeal to the Superior Court of Justice as well as a remedy under certain circumstances to the Building Code Commission.

[38] The issues raised in this case – the definition of an “owner”, the definition of “building”, what it means to install something – are all issues that are uniquely with the expertise of the Building Code Commission and go to the purpose of the legislation itself.

[39] Finally, the penalty for failing to comply with an order is a fine.

[40] Considering all these factors, it seems clear that it was not the intention of the legislature to allow for a “breach first, challenge later” approach (see R. v. Bird, 2019 SCC 7, supra, at paragraph 43). As such, Mr. Laporte was barred from challenging at trial the validity of the administrative order and this ground of appeal is dismissed.

Officially Induced Error

[41] The case of R. v. Cancoil Thermal Corp., [1986] O.J. No. 290, a decision of the Ontario court of Appeal stated that the defence of officially induced error was available as a defence to an alleged violation of a regulatory statute and set out five factors that must exist to establish that defence:

i. the accused must have considered the legal consequences of their action and sought legal advice;

ii. the legal advice must have been given by an official responsible for the enforcement or administration of a particular law;

iii. the legal advice given was erroneous;

iv. the persons receiving the advice relied on it; and

v. the reliance was reasonable.

[42] Mr. Moak submits that the learned Justice of the Peace incorrectly applied this principle.

[43] This argument has no merit and was not even fleshed out by the defence in submissions. In short, the argument seems to be that the brief conversation that Mr. Laporte had with Mr. Poupart who told him he couldn’t do anything with the building until he got a permit was somehow officially induced error. Taken at its highest, the basis of that alleged error was not about what remedies Mr. Laporte had available to him to review the order but rather on how building could be moved.

[44] This ground of appeal is dismissed.

Other Issues

[45] During his submissions on the issue of collateral attack on a court order, Mr. Moak submitted that his client could not avail himself of the other provisions in the Building Code Act to challenge the order because the initial wording of the information charging him with breaching that order charged him under the Township of South Glengarry By-Law 22-12.

[46] That wording was amended sometime to the start of the trial and there was no transcript provided of that portion of the proceeding.

[47] This issue, however, was not raised at trial. It is trite law to say that, generally, courts should not permit an issue to be raised for the first time on appeal (R. v. Brown, [1993] 2 S.C.R. 918).

[48] Furthermore, even HAD the issue been raised at trial, the argument holds no water. First, that charge was not laid until seven months after the order was issue. Second the order itself made it clear (a) what legislation it was being served under and (b) what mechanisms existed to challenge that order.

Conclusion

[49] The appeal is therefore dismissed.

Released: June 5, 2023 Signed: Justice D.A. Kinsella