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OBC & Order to Comply

Building inspectors help enforce the Ontario Building Code by doing, amongst other things, carrying out inspections and issuing Orders to Comply. An Order to Comply is essentially a formal warning that tells the person named in order to bring a particular premises into compliance with the Code by a certain date. Failure to comply with the order can lead to being charged under the Code, and can include a charge for having failed with order itself.

Sometimes a building inspector will make a mistake, for example, by issuing an Order to Comply to the wrong party. What happens then? The case of Mississauga (City) v Ashley Developments Ltd. give us some insight. In the Ashley case the owner of a commercial premises it was leasing was issued an Order to Comply. As it turned, out the owner’s tenant had carried out renovations at the leased premises without having obtained the required building permit. This was news to the owner. It had neither known about the renovations, nor had it consented to the same. Despite this, when the tenant failed to bring the premises into compliance with the Code the owner was charged with having contravened the Code for failing to have obtained a building permit, and for failing to comply with the inspector’s Order to Comply.

At trial, the court found that the owner was not guilty of the charge of contravening the Code because (I am simplifying) he was not in possession of the premises and did not have knowledge or consent to the renovations. The court also dismissed the failing to comply charge because the owner had proven a defence of due diligence, but also because the owner was able to successfully argue that the inspector had no right to have issued the Order to Comply to the owner in the first place.  

The prosecutor appealed, but he only appealed the court’s decision to dismiss the failing to comply charge. On appeal the prosecution argued that the trial court erred in allowing the owner to attack the inspector’s authority to have issued the Order to Comply. The prosecution also argued that the court erred in finding the owner had made out the defence of due diligence. The appeal court upheld the due diligence defence, butoverturned the trial court’s decision on the authority to issue the order defence. Interestingly, the appeal court did this even though it did not find that the inspector was within his right to have issued the order. You might ask how this is possible, or fair. The answer is something called the principle of collateral attack. In the context of the Ashley case the principle of collateral attack says that even if the inspector improperly issued the Order to Comply to the wrong party (i.e., he should have issued it to the tenant instead of the owner) the person who was improperly served with the order (i.e., the owner) is not allowed to simply stand by and wait until he is charged with a failure to comply to attack the validity of the order. In other words, the owner is not allowed to (collaterally) attack the legality of the order itself at his trial for a charge of failing to comply with that very order. The owner was, of course, free at the trial to adduced evidence showing how it did comply with the order or that it made out a defence of due diligence,  but it was not allowed to challenge the legality of the order itself.

On its face this might seem unfair, but one of the reasons the principal of collateral attack was found to apply in this case was that Code has a specific process by which the owner could have used to have the Order to Comply reviewed and set-aside (i.e., voided). In other words, at its peril the owner chose to contest the validity of the order by way of door number 2 (i.e., trial) instead of door number 1 (the Code mandated review process). At the end of the day it may no difference from a conviction stand point, as the owner beat the rap on his due diligence defence. Choosing door number 2 did, however, result in the unnecessary time and expense of a trial and an appeal. Had the owner chosen door number 1 and followed the review process under the Code he would have likely had the same result, but with less stress and expense (same amount of juice with half the squeeze, so to speak).

The moral of the story: if you or your company think you’ve been improperly named in an order to comply, move quickly to have the order reviewed pursuant to the procedures set-out under the Ontario Building Code. If you want to you can try to figure out how to go about doing this yourself, but if you have better things to I’ll be happy to help you.

Feel free to contact the author at dvansickle@kmblaw.com or at 905-276-0413 to discuss the issues highlighted in this article or for any of your Commercial Litigation needs.

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This article is provided for general information purposes and should not be considered a legal opinion. Clients are advised to obtain legal advice on their specific situations.

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