



COURT OF APPEAL FOR ONTARIO

CITATION: York (Regional Municipality) v.
    Irwin, 2020 ONCA 44

DATE: 20200124

DOCKET: M50990

van
    Rensburg J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen ex Rel.

The Regional Municipality of York

Applicant (Responding Party)

and

Robert
    Irwin

Respondent (Moving Party)

Gerard C. Borean, for the moving party

Chris G. Bendick, for the responding
    party

Heard and released orally: January 21, 2020

REASONS
    FOR DECISION

[1]

This is a motion for leave to appeal under s.
    131 of the
Provincial Offences Act
, R.S.O. 1990, c. P.33 (the POA).

[2]

The moving party Robert Irwin was charged in 2013
    with various offences under Part III of the POA, for failure to comply with six
    building inspectors orders issued that year under the
Building Code Act
,
1992, S.O. 1992, c. 23, in connection with construction at his commercial
    property. The orders required in each case that he obtain the required
    building permit or remove the unauthorized construction and restore the
    building/property to its former use. In his defence, Mr. Irwin testified that
    he had confronted essentially the same building inspectors orders and charges
    in 1996, 17 years earlier, and that the charges had been withdrawn after he had
    applied for and obtained the building permits.

[3]

Mr. Irwin was acquitted at first instance by a
    Justice of the Peace who provided detailed reasons for her decision. Among
    other things, she rejected the Regional Municipalitys argument that Mr.
    Irwins defence amounted to a collateral attack on the building inspectors
    orders which had not been appealed under s. 25 of the
Building Code Act
.
    The Justice of the Peace made findings in Mr. Irwins favour with respect to
    other defences, including estoppel and officially-induced error. She concluded
    her reasons by stating that, based on the evidence, the prosecution had not
    proven its case beyond a reasonable doubt that Mr. Irwin was not issued the
    building permits.

[4]

The Regional Municipality appealed the acquittal
    to a justice of the Ontario Court of Justice. The OCJ justice, among other
    things, accepted the collateral attack argument and substituted a conviction on
    all the charges, fining Mr. Irwin $600.

[5]

Mr. Irwin seeks leave to appeal to this court.

[6]

At the centre of the proposed appeal is the
    interpretation and application of the doctrine of collateral attack.

[7]

Mr. Irwin says that he was not challenging the
    2013 orders in his defence to the prosecution but was raising the fact of the
    previous orders and stating that there was nothing further to be done. Moreover,
    he says that the conclusion of the Justice of the Peace that the prosecution
    had not proven that he had failed to obtain the orders was fully supported by
    the evidence, and there was no basis at law for the OCJ justice to interfere.

[8]

Mr. Irwins evidence at trial was that his
    copies of the building permits were in the possession of his lawyer whose
    office was destroyed in a fire that took the lawyers life. The Regional Municipality
    had no record of the building permits, although there was evidence that Mr.
    Irwin applied for permits, and that building permit file numbers may have been
    assigned. A 1998 internal memo from the City of Vaughan confirmed that a site
    plan submitted for approval had gone missing.

[9]

I am satisfied that the test for leave to appeal
    under s. 131 of the POA is met.

[10]

The appeal raises a question of law respecting
    the interpretation and application of the doctrine of collateral attack. While
    a second appeal is exceptional in provincial offences matters, in this case,
    the first appeal substituted a conviction for an acquittal. Mr. Irwin seeks to
    restore the acquittal, relying on alleged errors of law. There are special
    grounds, and in the particular circumstances of this case, it is essential for
    the due administration of justice that leave to appeal be granted. Despite Mr.
    Bendicks able argument, I do not accept that the implications of the
    conviction are not significant to Mr. Irwin, or that there is no broader public
    interest. While Mr. Irwin was fined $600, the effect of the decision on the
    last appeal is that he remains out of compliance with the 2013 orders and may face
    further potential prosecution or enforcement actions because of his continuing
    breach. As for the broader public interest, there is the precedential value of
    the OCJ justices 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.

[11]

Leave to appeal is therefore granted.

[12]

Mr. Irwin seeks costs of his successful motion. The
    Regional Municipality questions the authority of the court to award costs in
    these proceedings, and in any event opposes an award of costs. The issue of costs
    of this motion is best reserved to the panel hearing the appeal and I so order.

K.
    van Rensburg J.A.


