Construction Law – Statutory regulation – Building permits
RI was charged with offences under Provincial Offences Act (POA) for failure to comply with building inspector's orders issued under Building Code Act, 1992 (BCA), in connection with construction at his commercial property. RI testified that he confronted similar situation 17 years earlier and that charges had been withdrawn after he applied for and obtained building permits. RI was acquitted by justice of peace who rejected regional municipality's argument that RI's defence amounted to collateral attack on building inspector's orders which had not been appealed under s. 25 of BCA. Regional Municipality successfully appealed to Ontario Court of Justice, which accepted collateral attack argument, substituted conviction, and fined RI $600. RI brought motion for leave to appeal. Motion granted. Test under s. 131 of POA was met. Appeal raised question of law respecting interpretation and application of doctrine of collateral attack. While second appeal was exception in provincial offences matters, in this case first appeal substituted conviction for acquittal. There were special grounds and it was essential for due administration of justice that leave be granted. Effect of decision was that RI remained out of compliance with orders and could face further potential prosecution or enforcement actions because of his continuing breach. As for broader public interest, there was precedential value of decision holding, in effect, that doctrine of collateral attack applied where party's defence was that they had complied with order that they had not appealed.
York (Regional Municipality) v. Irwin (2020), 2020 CarswellOnt 1615, 2020 ONCA 44, K. van Rensburg J.A. (Ont. C.A.).
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