Transcript Building Code Act - Prosecutors` Association of Ontario

Municipal Administrative
Orders – Collateral Attacks
Prosecutors’ Association of
Ontario
Prepared by
Ted Allen
Supervising Prosecutor
Mark McDonnell
Lead Prosecutor
Melinda Fartsalas
Prosecutor
Region of York
September 2014
What is a Collateral Attack?
• A collateral attack is to attack the validity
of the order, rather than to raise a
defense to the charge proper.
• A collateral attack is an attempt to defend
the charge by indicating the order is
deficient in some way or form.
• The validity of an Order is attacked in the
trial court as a defense to the charge of
“Fail to Comply”
What is a Collateral Attack?
“… the question is, accordingly, the extent
to which, where no right of appeal confers
express jurisdiction on the trial judge, the
rule of law enables a penal court … to
consider the validity of an administrative
order where a person is charged with failing
to comply with such order.”
Consolidated Maybrun Mines Limited v. The Queen, [1998]
1 S.C.R. 706 at para. 24
What is a Collateral Attack?
In other words:
If the statute does not give a trial justice the
express power to hear an appeal of the
order
Can the trial justice hear an appeal
concerning the basis for the order?
What is a Collateral Attack?
“It can be seen from this survey of the
Canadian case law that, in most of the
cases, the existence of a right to appeal the
order on which the penal charges were
based appears to have been an important, if
not decisive, factor.”
Maybrun Mines at para. 34
What is a Collateral Attack?
Exhaustion of Remedies Doctrine
If an administrative remedy is provided by
statute, a claimant must seek relief first
from the administrative body before judicial
relief is available.
Black’s Law Dictionary, 8th Edition
What is a Collateral Attack?
In other words:
If an administrative remedy is provided by
statute
GO TO THE ADMINISTRATIVE BODY FIRST!
What is a Collateral Attack?
In U.S. law, this Doctrine settles the issue of
collateral attacks.
If an administrative remedy is provided, it
must be used.
What is a Collateral Attack?
“Although it is inappropriate … to apply the
exhaustion doctrine to settle the collateral
attack issue in Canada, it is, on the other
hand, entirely appropriate to inquire into the
legislature's intention for the purpose of
determining the appropriate forum to decide
whether an administrative order is valid.”
Maybrun Mines at para. 38
What is a Collateral Attack?
In other words:
In Canada, we can’t jump right to the
Exhaustion Doctrine to support the positon
that you cannot appeal to a trial justice.
We have to analyze the statute to see what
the intention was.
Why Can’t You Collaterally
Attack an Order?
• Some orders can be collaterally attacked
• Check the “Act” the order is created from
to determine if a collateral attack is
permissible – look for the “5 factors” as
per case law Maybrun Mines - Supreme
Court of Canada [1998] 1 S.C.R. 706
[1998] S.C.J. No. 32 File No: 25326
Orders that Cannot be
Collaterally Attacked
• Common “Acts” that prevent collateral
attacks on orders issued under the Act;
– Building Code Act
– Planning Act
– Fire Protection and Prevention Act
Orders that Can be Collaterally
Attacked
• A common “Act” we deal with that allow
collateral attacks on orders issued under
the Act;
– Municipal Act (site alteration section 142(1))
– Municipal Act (order to discontinue activity
section 444(1))
(These sections of the Municipal Act do not
contain or are not associated with the “5
factors”)
Five factors should be considered in
determining whether a collateral
attack is permissible
• (1) the wording of the statute
• (2) the purpose of the legislation
• (3) the availability of an appeal
• (4) the kind of collateral attack
• (5) the penalty on a conviction for failing
to comply with the order
Maybrun Mines paragraph 15
Five factors should be considered in
determining whether a collateral
attack is permissible
• (1) the wording of the statute
• The purpose of the Act is to protect public
and societal interests by creating
regulatory offences
Maybrun Mines at paragraph 16
Five factors should be considered in
determining whether a collateral
attack is permissible
• (2) the purpose of the legislation
• Objective of the Act would be undermined
if court permitted to rule on the grounds
for making the order
Maybrun Mines at paragraph 16
Five factors should be considered in
determining whether a collateral
attack is permissible
• (3) the availability of an appeal
• The Act balances interests of general
welfare and compliance with the interest
of those to whom an order is directed by
providing for the possibility of an appeal
Maybrun Mines at paragraph 16
Five factors should be considered in
determining whether a collateral
attack is permissible
• (4) the kind of collateral attack
• As to the nature of the collateral attack,
Laskin J.A. distinguished between lack of
jurisdiction ab initio, which can result in a
collateral attack on an order, and an error,
even if unreasonable, committed by a
director (building official or property
standards officer) in exercising his or her
jurisdiction, which is not open to such an
attack
Five factors should be considered in
determining whether a collateral
attack is permissible
• (5) the penalty on a conviction for failing
to comply with the order
• The penalty is a fine rather than
imprisonment
Maybrun Mines at paragraph 17
If people were free to attack the validity of
orders once charges were laid it would:
• Discredit administrative tribunals
• Decrease chances of conciliation & cooperation
• Harden relations between governments &
citizens
• Undermine administrative schemes which
are designed to respond to situations
requiring immediate remedial action
Maybrun Mines at para. 42
Due Diligence Defense
• Concerning the due diligence defence
raised by the appellants, Laskin J.A.
concluded that accused persons cannot
argue that an order was unreasonable or
unfounded so as to avoid performing the
obligations imposed on them by the order.
That would amount to authorizing a
disguised collateral attack.
Maybrun Mines paragraph 18
Proper Method to Dispute Order
• The Act allows for an appeal process
• Usually two routes/chances of appeal
– First route of appeal to the administrative
board
– Second route of appeal to the court
– As per the Statute
Proper Method to Dispute Order
• Orders should contain clear appeal
instructions
• Inspectors/enforcement should make the
appeal provisions clear see 1353837 Ontario
paragraph (100)
Case law
• Hoy [2008] O.J. No. 982 (Good Property
Standards example)
• Al Klippert Ltd [1998] S.C.J. No. 33
• Maybrun Mines [1998] 1 S.C.R. 706
• 1353837 Ontario [2007] O.J. No. 433
(Good FPPA example)
Case law
• Hoy, Klippart, Maybrun, 1353837 Ontario
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How Do I Defend a Collateral
Attack?
• Moot court example