Is there any Limitation as to When a Building Code Act Charge may be Laid?

Transcription

1 Is there any Limitation as to When a Building Code Act Charge may be Laid? Leo F. Longo OBOA s 56 th AMTS - Sudbury September 12, 2012

2 A Simple Question Is there any limitation as to when a Building Code Act charge may be laid? 2

3 A Not-So-Simple Answer Martin Grove Properties Ltd. v. Her Majesty the Queen Ex. Rel. The Regional Municipality of York, 2012 CanLII (SCC) R. v. Martin Grove Properties Ltd., 2011 ONCA 711 (CanLII) York (Regional Municipality) v. Martin Grove Properties, [2010] O.J. No R. v. Martin Grove Properties Limited, File No

4 Building Code Act, 1992, s (1) A person is guilty of an offence if the person, (a) knowingly furnishes false information in any application under this Act, in any certificate required to be issued or in any statement or return required to be furnished under this Act or the regulations; 4

5 Building Code Act, 1992, s. 36 (b) fails to comply with an order, direction or other requirement made under this Act; or (c) contravenes this Act, the regulations or a by-law passed under section 7 [ Building By-Law ]. 5

6 Building Code Act, 1992, s. 36 Limitation period 36(8) No proceeding under this section shall be commenced more than one year after the facts on which the proceeding is based first came to the knowledge of, (a) an officer, where the proceeding is in respect of the enforcement of by-laws passed under section 15.1 [ Property Standards By-Law ]; or (b) the chief building official, in any other case. 6

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9 Basic Facts MGP constructed without permits 8 tents [approx. 120,000 sq.ft.] on a Hydro Corridor abutting its property No code deficiencies alleged; just building without a permit Orders to Comply were issued on November 4, 2002 & December 9, 2002 A Summons was issued July 11, 2003 Charges withdrawn by prosecution January 22, 2007 no explanation given 9

10 Basic Facts An new Order to Comply was issued on February 21, 2007 nothing done The last Order to Comply was issued March 31, 2008 A summons was issued on January 27, 2009 MGP requested the court to strike all charges arising from the 2009 Order due to the 1 year limitation in s

11 Basic Facts 11

12 Basic Facts 12

13 Ontario Court of Justice - Trial 13

14 Ontario Court of Justice - Trial 14

15 Ontario Court of Justice - Trial 15

16 Ontario Court of Justice - Appeal 16

17 Ontario Court of Justice - Appeal At trial...mgp maintained that the appellant's claim was absolutely barred in law by reasoning that s. 36(8) of the BCA precluded any charge laid beyond the statutory limitation period. Her Worship DeBartolo affirmed the defendant's, now the Respondent's position in holding that the municipality did in fact bring the charges outside the applicable statutory limitation period under the BCA. The charges were dismissed at trial. 17

18 Ontario Court of Justice - Appeal The "limitation period" for laying a charge under the BCA is defined in s. 36(8) of the BCA, which provides that "No proceeding shall be commenced more than one year after the time when the subject matter arose". The statute is clear in this respect. Thus, an accurate reading of the limitation period necessarily involves relating the charge back to the subject matter of the offence and the date at which it arose. 18

19 Ontario Court of Justice - Appeal The appellant submits the subject matter of the proceedings is the failure to comply with an order charge, whereby the limitation period begins to run as of the date when the compliance with the order is to be achieved. The appellant submits the municipality therefore brought the charges within the applicable statutory period relative to the date the defendant breached an order to comply. The appellant requests the appeal to be allowed and a new trial ordered. 19

20 Ontario Court of Justice - Appeal One of the key issues herein is what is the subject matter of the proceedings and was the charge brought under the applicable, or within the applicable limitation period. This appeal turns on the basis of one contentious issue: What is the subject matter of the proceedings? 20

21 Ontario Court of Justice - Appeal To allow the municipality to regain statutory time by continually reissuing orders for the same alleged offence at some later date would circumvent the very purpose of the BCA's limitation period. This could unreasonably prolong the time in which a charge could be made under the BCA at the caprice of the municipality. 21

22 Ontario Court of Justice - Appeal In the present case, all four orders were made with respect to the same charge alleging the same set of facts issued over a period of six years until a charge was ultimately laid in To allow such a result would undermine the existence of a limitation period in the first place. 22

23 Ontario Court of Appeal 23

24 Ontario Court of Appeal 24

25 Ontario Court of Appeal 25

26 Supreme Court of Canada 26

27 The Current Not-So-Simple Answer 36(1)(a) [false information] & (c) [contravening the Act] cannot commence a proceeding more than 1 year after the facts become known 36(1)(b) [failing to comply with an Order] - cannot commence a proceeding more than 1 year after the date for compliance 27

28 Other Angles Respecting the One Year Limitation Period Section 38 - Restraining Orders Prosecution = An Abuse of Process 28

29 Building Code Act, 1992, s. 38 Restraining Order 38(1) Where it appears to a chief building official that a person does not comply with this Act, the regulations or an order made under this Act, despite the imposition of any penalty in respect of the noncompliance and in addition to any other rights he or she may have, the chief building official may apply to the Superior Court of Justice for an order directing that person to comply with the provision. 29

30 Restraining Order Angle Is there any applicable limitation period respecting seeking such an Order? No limitation applies respecting a s. 38 Order... as you are seeking to restrain a current contravention, not something that has ceased. 30

31 Abuse of Process Angle Court of Appeal s decision opened that door but the judges didn t walk in. Subsequent to the S.C.C. s denial of leave to appeal, Martin Grove Properties is now seeking to argue that the prosecution constitutes an abuse of process....and back to the courts they go...!!! At next year s AMTS in Hamilton, I will update you on this fascinating case. 31

32 Thank You Name: Leo F. Longo Title: Senior Partner T F E llongo@airdberlis.com