ONTARIO COURT OF JUSTICE
DATE: 2025-05-06
COURT FILE No.: Hamilton, Ontario 23-644, 23-645, 23-646
BETWEEN:
HAMILTON (CITY)
— AND —
NOEL-GEORGE CARR
Before Justice of the Peace K.W. Bouchard
Heard on October 25th, 2024
Ruling on Dismissal on November 28th, 2024
Reasons for Dismissal released on May 6th, 2025
T. Daley — counsel for the prosecution
No appearance by or on behalf of N.G. Carr, even though notified of time and place.
BOUCHARD K.W. J.P.:
Introduction
[1] This court held a Part III trial under the Provincial Offences Act (POA), in absentia, for Noel George Carr (hereinafter NGC or the defendant) on October 25th, 2024. The matter returned on November 28th, 2024 for verbal reasons why all three informations were quashed (all charges dismissed) based on the informations being outside the limitation period and statute barred. At that time, I reserved whether I would supplement the verbal reasons with written reasons to follow; these are those reasons.
[2] As the defendant did not appear, by choice or otherwise, I was satisfied on October 25th, 2024 that the matter was properly before the court, and proceeded with a trial in absentia (TIA). There was a verbal motion by the Prosecutor to join the three similar fact trials into one trial, which was unopposed. I granted the motion of joinder, and we proceeded in that manner. However, it became clear during witness testimony that there was a limitation issue to be addressed. On the court’s own motion, I sought submissions from the Prosecutor (during summation) on the motion to quash the three informations as being outside the statutory limitation period. At the request of the Prosecutor, I adjourned the ruling on the motion to quash until November 28th, 2024 with leave granted to the Prosecutor to submit written submissions by November 14th, 2024.
[3] The written submissions from the Prosecutor in short contend that s.8(1) and s.12(2) of the Building Code Act (BCA) are continuing offences and are thus within the limitation period. They asked this court to review the following cases: Rutherford, Bucci, Bova, Urus Industrial Corps (a POA appeal), and Hamilton Sciences Corp. For Urus I will include the trial court's original analysis which the appeal court relied extensively on for its analysis of continuing offences. When this court conducted its own analysis it reviewed the following cases: Pickles, Newton-Thompson, Dolson, Boucha (a POA appeal), and Kuzyk.
[4] It was the decision of this court, on November 28th, 2024, to quash informations 23-644, 23-645, and 23-646, all under the Building Code Act (BCA), as the laying of the informations were statute barred. Each contained a defect that cannot be remedied by an amendment or particulars under s.34 of the POA. In order to arrive at this conclusion, I had to make the following rulings: first whether the doctrine of discoverability had been incorporated into the act (adopting reasoning from Pickles, Dolson), second whether the issue of continuing offences is not relevant to the statutory limitation period when the doctrine of discovery has been incorporated (adopting reasoning from Boucha, Kuzyk), third even if I’m wrong in my interpretation of the doctrine of discoverability and continuing offences with respect to limitation periods, is it clear from the statute that s.8(1) and s.12(2) of the BCA are not continuing offences? Finally, I had to decide, as the Crown alluded to in verbal submissions, whether the decision to not issue a stop work order under s.14(1) converted s.8(1) and s.12(2) into continuing offences.
[5] As I will make clear in these reasons I ruled as follows: first that the doctrine of discoverability has been incorporated into the BCA, second that since the doctrine of discoverability has been incorporated into the Act, that it is irrelevant whether the offences are continuing offences for purposes of determining the limitation period, third, even if both prior rulings are incorrect I find that s.8(1) and s.12(2) of the BCA are not continuing offences; rather only s.14(1) (and other offences listed within s.36(6)) of the BCA is a continuing offence. As the defendant was not charged under s.14(1) on the three informations none of the offences charged were within the statutory limitation period; further as I will explain the lack of a stop work order does not convert s.8(1) and s.12(2) into continuing offences.
Issues
[6] Has the doctrine of discoverability been incorporated into the BCA?
[7] Is the determination of continuing offences relevant to the determination of a violation of the statutory limitation period under the BCA, when the doctrine of discoverability has been incorporated?
[8] Which offences under the BCA are continuing offences? How does the determination of a continuing offence impact the statutory limitation period?
[9] Can the decision of the Chief Building Official to not issue a stop work order, under s.14(1), convert a permit violation under s.8(1) or an order to comply violation under s.12(2) into a continuing offence?
Rules
[10] The Ontario Court of Appeal (ONCA) in Rutherford indicates that continuing offences are distinguished into two types: first offences which are constituted by conduct which goes on from day to day, which constitutes separate and distinct offences on each day the conduct continues. Second, there are offences generally of a passive character which consists of a failure to perform a duty imposed by law. Further this case highlights for continuing offences that: it is considerably easier to find a continuing offence where the statute provides for a penalty for every day that the corrective work is not done or the offending activity continues to be done. It is noteworthy that the s.36(6) BCA has explicitly singled out s.14(1) as a continuing offence, but has not done so for s.8(1) nor s.12(2) as the Prosecution contends.
[11] In Hamilton Science Corps the ONCA held that: if the offence is a continuing one, the right to lay an information is not barred if the breach (the failure to perform the duty) has continued up to the day the information was laid or if the breach was cured before the information was laid, as in this case, the time counts from the day the duty was performed. I note this case related to a duty of an employer to report an accident to WSIB, this is distinguished from the case at bar which relates to the discovery by the Chief Building Official of building code violations.
[12] Bonas, J.P. of the Ontario Court of Justice (OCJ) in Bucci found that s.12(2) of the BCA was a continuing offence. This decision was reached prior to the doctrine of discoverability being incorporated into the BCA, as discussed by the ONCA in Dolson. His Worship's ruling that it was open to the trial justice to construe the discovery rule no longer applies.
[13] Soloman J.P. of the OCJ in Bova, found similarly that s.12(2) of the BCA is a continuing offence, relying on Hamilton Science Corps. Of note this decision relies on several authorities that predate the aforementioned amendment of the BCA to incorporate the doctrine of discoverability (Dolson), as such the case at bar is distinguished.
[14] Lenz J, sitting as a POA Appeal Judge for Urus Industrial Corps agreed with the trial justice of the peace that the offence was a continuing offence. What distinguishes this case first is that the Ontario Health and Safety Act (OHSA) s.69 incorporates both the completion date of the delict and the doctrine of discoverability for the limitation period; unlike within s.36(8) of the BCA where only the doctrine of discoverability is considered. The Appeal Judge noted in Urus that to not find it a continuing offence would lead to ludicrous results, I will come back to this standard (the absurd results standard) with the opposite conclusion for the case at bar.
[15] Next in Pickles, the ONCA reasoned that the BCA limitation period (as it stood at that time) did not include a statutory provision for the doctrine of discoverability, and a court should not expand its reach to include it. It's important to note that the legislature in fact amended the BCA in 2009 and directly incorporated the doctrine of discoverability into s.36(8). Another key aspect of this ruling was that s.8(1) of the BCA was considered to trigger the limitation period at the completion of the delict; this is then extended by the 2009 amendment to trigger the 1 year limitation period based on discoverability, and not whether it is a continuing offence. In fact the court specifically rejected the relevance of whether a BCA offence was a continuing offence as determinative of a limitation period. Further the court in this case also observed the legislature made the effort within s.36(6) of specifying continuing offences under the BCA, and deliberately did not include s.8(1) nor s.12(2).
[16] In Newton-Thompson the ONCA ruled, in the context of the Child and Family Services Act, that failing to report is not a continuing offence, if it were it would create the ludicrous incentive not to report as a late report would amount to an admission of guilt. In the case at bar the same logic applies, even if we assumed s.8(1) and s.12(2) BCA are continuing offences (which they are not), the application for a permit or compliance with an order after commencing construction would amount to an admission of guilt for the underlying delict.
[17] Within Boucha Joubert J an OCJ POA Appeal Judge ruled (see para 93) that when the limitation period is based on discovery the question of whether the offence is a continuing offence is not relevant. Further the Justice ruled that: it does not matter whether each new day constitutes a new act (completion of continuance is not relevant) because it bears no relation to the trigger, which is simply discovery of the act (see para 96). Most importantly the Justice rejects the Crown argument that discovery is “born again” each day like a Phoenix, instead they adopted Rutherford (para 7) focussing on the defendant's actions that triggered the offence, and then the discovery of that offence.
[18] Finally, within Kuzyk, Dudar J.P. of the OCJ ruled that Boucha, Pickles, and Newton-Thompson are the leading cases on limitation periods for the BCA. Further they adopted the reasoning in Boucha that where the doctrine of discovery applies whether an offence is continuing or not is not relevant to the limitation period. I agree with His Worship.
Application
[19] First, applying those authorities to the issues at bar we find that it is clear that the doctrine of discoverability has been incorporated into the BCA since 2009, and it is that version of the act that applies to the instant case.
[20] Second, having found that the doctrine of discoverability has been incorporated I find that I am bound by Pickles and Boucha (an appellate POA decision) to conclude that where discoverability applies it is not relevant whether the offences are continuing. The Crown's submissions therefore fail on this point.
[21] Third, even if I’m wrong that I’m bound by Boucha, and if I accept that the Crown’s argument holds that continuing offences do rise like the Phoenix each new day, is it correct that s.8(1) and s.12(2) are continuing offences? Unfortunately, no the Crown’s argument also fails when we review Pickles, which when applied requires the court to consider which offences were specifically included as continuing offences under the Act. A plain reading of the BCA as it stands, under s.36(6) does not list s.8(1) nor s.12(2) as continuing offences.
[22] Fourth, how should the court consider the Crown’s arguments that the decision (or failure) of the Chief Building Official to not issue a stop work order would necessarily convert offences under s.8(1) and s.12(2) to continuing offences even when not explicitly incorporated by statute? And is this even relevant? Unfortunately, this Crown argument also fails on several fronts. Returning as I promised to the absurd results standard (see para 14 above), if this argument holds it leads to the ludicrous result that the Crown can issue a never-ending series of orders to comply years and decades after the delict was discovered under the logic that it has not been complied with. This would contradict Newton-Thompson which found that a negative incentive would be created by this procedure, the defendant would have no incentive to ever comply as to do so would be an admission of guilty despite the passage of time, and the expiry of the statutory limitation period. More concerningly this train of thought negates the relevance of the limitation period entirely; one must ask what is the purpose of the limitation period if the Chief Building Official can sidestep it one day before it expires by issuing a new order to comply?
[23] Fifth and finally, in the case at bar all three informations were laid on the same date, June 22nd, 2023. Viva voce evidence at trial, from inspector Holly Brown, indicated that the discovery date for the offences for each information were as follows: January 16, 2017; January 10th, 2019; and July 7th, 2020. Further evidence at trial indicated that orders to comply, under s.12(2) BCA were issued on the following dates: January 16th, 2017; January 10th, 2019; and July 7th, 2020 which are the same dates the delicts were discovered. It is worth noting that Holly Brown’s evidence in this regard was lacking, her notes appeared incomplete as to the exact dates the delicts were discovered, instead she adopted under oath the dates the orders to comply were issued as a proxy for the discovery dates. It is clear from even a cursory review of these dates that the three informations were laid well outside the one-year statutory limitation period.
Conclusions
[24] For these reasons all three informations at the combined trial were quashed as being outside the statutory limitation period, and were therefore statute barred. The court expresses its appreciation to the Prosecution for their submissions and patience.
Signed: Justice of the Peace K.W. Bouchard