municipal administrative orders – collateral attacks prosecutors’ association of ontario...

Municipal Administrative Municipal Administrative Orders – Collateral AttacksOrders – Collateral Attacks

Prosecutors’ Association of Prosecutors’ Association of OntarioOntario

Prepared by Prepared by Ted Allen Ted Allen

Supervising Prosecutor Supervising Prosecutor Mark McDonnellMark McDonnellLead ProsecutorLead Prosecutor

Melinda Fartsalas Melinda Fartsalas ProsecutorProsecutor

Region of YorkRegion of YorkSeptember 2014September 2014

What is a Collateral Attack?What is a Collateral Attack?• A collateral attack is to attack the A collateral attack is to attack the

validity of the order, rather than to validity of the order, rather than to raise a defense to the charge proper. raise a defense to the charge proper.

• A collateral attack is an attempt to A collateral attack is an attempt to defend the charge by indicating the defend the charge by indicating the order is deficient in some way or form.order is deficient in some way or form.

• The validity of an Order is attacked in The validity of an Order is attacked in the trial court as a defense to the the trial court as a defense to the charge of “Fail to Comply”charge of “Fail to Comply”

What is a Collateral Attack?What is a Collateral Attack?

“… “… the question is, accordingly, the extent the question is, accordingly, the extent to which, where no right of appeal confers to which, where no right of appeal confers express jurisdiction on the trial judge, the express jurisdiction on the trial judge, the rule of law enables a penal court … to rule of law enables a penal court … to consider the validity of an administrative consider the validity of an administrative order where a person is charged with order where a person is charged with failing to comply with such order.”failing to comply with such order.”Consolidated Maybrun Mines Limited v. The Queen, [1998] 1 S.C.R. 706 at para. 24


In other words:In other words:

If the statute does not give a trial If the statute does not give a trial justice the express power to hear an justice the express power to hear an appeal of the orderappeal of the order

Can the trial justice hear an appeal Can the trial justice hear an appeal concerning the basis for the order?concerning the basis for the order?


““It can be seen from this survey of the It can be seen from this survey of the Canadian case law that, in most of the Canadian case law that, in most of the cases, the existence of a right to appeal cases, the existence of a right to appeal the order on which the penal charges the order on which the penal charges were based appears to have been an were based appears to have been an important, if not decisive, factor.”important, if not decisive, factor.”

Maybrun Mines at para. 34


Exhaustion of Remedies DoctrineExhaustion of Remedies Doctrine

If an administrative remedy is provided If an administrative remedy is provided by statute, a claimant must seek relief by statute, a claimant must seek relief first from the administrative body first from the administrative body before judicial relief is available.before judicial relief is available.Black’s Law Dictionary, 8th Edition



If an administrative remedy is provided If an administrative remedy is provided by statuteby statute

GO TO THE ADMINISTRATIVE BODY GO TO THE ADMINISTRATIVE BODY FIRST!FIRST!


In U.S. law, this Doctrine settles the In U.S. law, this Doctrine settles the issue of collateral attacks.issue of collateral attacks.

If an administrative remedy is If an administrative remedy is provided, it must be used.provided, it must be used.


““Although it is inappropriate … to apply Although it is inappropriate … to apply the exhaustion doctrine to settle the the exhaustion doctrine to settle the collateral attack issue in Canada, it is, on collateral attack issue in Canada, it is, on the other hand, entirely appropriate to the other hand, entirely appropriate to inquire into the legislature's intention for inquire into the legislature's intention for the purpose of determining the the purpose of determining the appropriate forum to decide whether an appropriate forum to decide whether an administrative order is valid.”administrative order is valid.”Maybrun Mines at para. 38



In Canada, we can’t jump right to the In Canada, we can’t jump right to the Exhaustion Doctrine to support the Exhaustion Doctrine to support the positon that you cannot appeal to a positon that you cannot appeal to a trial justice.trial justice.

We have to analyze the statute to see We have to analyze the statute to see what the intention was.what the intention was.

Why Can’t You Collaterally Why Can’t You Collaterally Attack an Order?Attack an Order?• Some orders can be collaterally Some orders can be collaterally

attackedattacked

• Check the “Act” the order is created Check the “Act” the order is created from to determine if a collateral from to determine if a collateral attack is permissible – look for the “5 attack is permissible – look for the “5 factors” as per case law Maybrun factors” as per case law Maybrun Mines - Supreme Court of Canada Mines - Supreme Court of Canada [1998] 1 S.C.R. 706 [1998] S.C.J. No. [1998] 1 S.C.R. 706 [1998] S.C.J. No. 32 File No: 2532632 File No: 25326

Orders that Cannot be Orders that Cannot be Collaterally AttackedCollaterally Attacked

• Common “Acts” that Common “Acts” that preventprevent collateral attacks on orders issued collateral attacks on orders issued under the Act;under the Act;– Building Code ActBuilding Code Act– Planning ActPlanning Act– Fire Protection and Prevention ActFire Protection and Prevention Act

Orders that Can be Orders that Can be Collaterally AttackedCollaterally Attacked• A common “Act” we deal with that A common “Act” we deal with that allowallow

collateral attacks on orders issued collateral attacks on orders issued under the Act;under the Act;– Municipal Act (site alteration section 142(1))Municipal Act (site alteration section 142(1))– Municipal Act (order to discontinue activity Municipal Act (order to discontinue activity

section 444(1))section 444(1))

(These sections of the Municipal Act do not (These sections of the Municipal Act do not contain or are not associated with the “5 contain or are not associated with the “5 factors”)factors”)

Five factors should be Five factors should be considered in determining considered in determining whether a collateral attack is whether a collateral attack is permissiblepermissible• (1) the wording of the statute(1) the wording of the statute

• (2) the purpose of the legislation(2) the purpose of the legislation

• (3) the availability of an appeal(3) the availability of an appeal

• (4) the kind of collateral attack(4) the kind of collateral attack

• (5) the penalty on a conviction for (5) the penalty on a conviction for failing to comply with the orderfailing to comply with the order

Maybrun Mines paragraph 15

Five factors should be Five factors should be considered in determining considered in determining whether a collateral attack is whether a collateral attack is permissiblepermissible• (1) the wording of the statute(1) the wording of the statute

• The purpose of the Act is to protect The purpose of the Act is to protect public and societal interests by public and societal interests by creating regulatory offencescreating regulatory offences

Maybrun Mines at paragraph 16

Five factors should be Five factors should be considered in determining considered in determining whether a collateral attack is whether a collateral attack is permissiblepermissible• (2) the purpose of the legislation(2) the purpose of the legislation

• Objective of the Act would be Objective of the Act would be undermined if court permitted to rule undermined if court permitted to rule on the grounds for making the orderon the grounds for making the order


Five factors should be Five factors should be considered in determining considered in determining whether a collateral attack is whether a collateral attack is permissiblepermissible• (3) the availability of an appeal(3) the availability of an appeal

• The Act balances interests of general The Act balances interests of general welfare and compliance with the welfare and compliance with the interest of those to whom an order is interest of those to whom an order is directed by providing for the directed by providing for the possibility of an appealpossibility of an appeal


Five factors should be Five factors should be considered in determining considered in determining whether a collateral attack is whether a collateral attack is permissiblepermissible• (4) the kind of collateral attack(4) the kind of collateral attack

• As to the nature of the collateral attack, As to the nature of the collateral attack, Laskin J.A. distinguished between lack of Laskin J.A. distinguished between lack of jurisdiction ab initio, which can result in a jurisdiction ab initio, which can result in a collateral attack on an order, and an error, collateral attack on an order, and an error, even if unreasonable, committed by a director even if unreasonable, committed by a director (building official or property standards officer) (building official or property standards officer) in exercising his or her jurisdiction, which is in exercising his or her jurisdiction, which is not open to such an attacknot open to such an attack


Five factors should be Five factors should be considered in determining considered in determining whether a collateral attack is whether a collateral attack is permissiblepermissible• (5) the penalty on a conviction for (5) the penalty on a conviction for

failing to comply with the orderfailing to comply with the order

• The penalty is a fine rather than The penalty is a fine rather than imprisonmentimprisonment


If people were free to attack the validity of If people were free to attack the validity of orders once charges were laid it would:orders once charges were laid it would:

•Discredit administrative tribunalsDiscredit administrative tribunals

•Decrease chances of conciliation & co-Decrease chances of conciliation & co-operationoperation

•Harden relations between governments & Harden relations between governments & citizenscitizens

•Undermine administrative schemes which Undermine administrative schemes which are designed to respond to situations are designed to respond to situations requiring immediate remedial actionrequiring immediate remedial action

Maybrun Mines at para. 42

Due Diligence DefenseDue 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 Proper Method to Dispute OrderOrder

• The Act allows for an appeal processThe Act allows for an appeal process

• Usually two routes/chances of appealUsually two routes/chances of appeal– First route of appeal to the First route of appeal to the

administrative boardadministrative board– Second route of appeal to the courtSecond route of appeal to the court– As per the StatuteAs per the Statute

Proper Method to Dispute Proper Method to Dispute OrderOrder

• Orders should contain clear appeal Orders should contain clear appeal instructionsinstructions

• Inspectors/enforcement should make Inspectors/enforcement should make the appeal provisions clear the appeal provisions clear see 1353837 see 1353837 Ontario paragraph (100)Ontario paragraph (100)

Case lawCase law

• Hoy [2008] O.J. No. 982 (Good Hoy [2008] O.J. No. 982 (Good Property Standards example)Property Standards example)

• Al Klippert Ltd [1998] S.C.J. No. 33Al Klippert Ltd [1998] S.C.J. No. 33

• Maybrun Mines [1998] 1 S.C.R. 706Maybrun Mines [1998] 1 S.C.R. 706

• 1353837 Ontario [2007] O.J. No. 433 1353837 Ontario [2007] O.J. No. 433 (Good FPPA example)(Good FPPA example)

Case lawCase law

• Hoy, Klippart, Maybrun, 1353837 Ontario Hoy, Klippart, Maybrun, 1353837 Ontario

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How Do I Defend a Collateral How Do I Defend a Collateral Attack?Attack?

• Moot court example Moot court example

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