



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Irwin, 2020 ONCA 776

DATE: 20201209

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. Irwins 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 lawyers office. However, they were later destroyed in a fire that
    also took Mr. Sieverts 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. Irwins 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 respondents 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. Irwins 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
    respondents 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. Irwins 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 respondents collateral attack submission. She distinguished
    the jurisprudence relied upon by the respondent, including
R. v.
    Consolidated Maybrun Mines Ltd.
, [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. Irwins 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. Irwins 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 partys 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] 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] 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 legislatures
    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 rules
    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 dêtre 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 legislatures 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 rules underlying principles, and the court
    has the discretion not to apply it in those circumstances. For example, in
R.
    v. Domm
, (1996) 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] 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 rules 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 employees 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] 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] 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 courts 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 cases
    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 respondents charges on the basis
    that they violated the criminal rate of interest provisions in the Criminal
    Code. The motion judge granted the respondents 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 appellants action is not to invalidate or render
    inoperative the Boards 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, TeleZones 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
    Courts jurisdiction to proceed with the claim for compensation until TeleZone
    obtained from the Federal Court of Canada an order quashing the Ministers
    decision. It submitted that TeleZones 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
Garland
itself

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 unions position was an
    implicit attack on the correctness of the decisions 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. Irwins 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 peaces conclusion that the respondent had not proved Mr.
    Irwins 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. Irwins 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. Irwins 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, youll 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. Ive 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 its
    identified in the order to comply, is made up of two industrial trailers and a
    storage rack for boats, a boat rack. That certainly doesnt 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. Irwins defence is that these orders should
    have never been issued. This is a collateral attack, as it seeks to invalidate
    the building inspectors 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 dêtre 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.
    Irwins. 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 Acts 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 tribunals
    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) 3 F.C.
    235 (C.A.), at p. 10.


