Focus On

PLANNING AND DEVELOPMENT - Building regulations - Building permits

Thursday, February 04, 2021 @ 6:12 AM  


Lexis Advance® Quicklaw®
Appeal by Irwin from an appeal judge’s decision setting aside his acquittal on charges for failure to comply with orders under the Building Code. The orders required him to obtain building permits for certain structures on his property or remove them. At trial, Irwin argued that in respect to five of the buildings he had obtained the required building permit years before the orders were issued and that he did not require building permits with respect to the other two buildings. The respondent argued that these defences were unavailable because they amounted to a collateral attack on the orders. The justice of the peace who conducted the trial found that the collateral attack rule was inapplicable and acquitted Irwin. On appeal, the appeal judge found that the justice of the peace erred in law on the issue and that the collateral attack rule precluded Irwin from asserting his defences.

HELD: Appeal allowed in part. 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. The appeal judge erred when he found that 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, 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. There was no error in the justice of the peace’s conclusion that the respondent had not proved Irwin’s guilt regarding the convictions related to buildings 1, 2, 5, 6 and 7. For the two orders relating to buildings 3 and 4, Irwin engaged in a collateral attack. Building 3 consisted of three portable storage sheds. Building 4 was used for boat storage. His argument against the enforcement of these orders was that no permits were required for these structures. This was a collateral attack because it attacked the validity of the orders themselves. While some factors suggested that a collateral attack was permissible, the purpose of the Act and readily available appeal mechanisms were the decisive factors. The Act’s safety goals would be undercut if individuals could wait for penal proceedings to determine whether a building permit was required. By setting up a broad appeal mechanism, which must be exercised within 20 days of the order, the legislature signalled that expediency was a priority. Permitting collateral attacks of the type Irwin was making in this case would undermine this design and was therefore contrary to legislative intent.

York (Regional Municipality) v. Irwin, [2020] O.J. No. 5382, Ontario Court of Appeal, D.H. Doherty, C.W. Hourigan and G.I. Pardu JJ.A., December 9, 2020. Digest No. TLD-February12021007