1. 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

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

3. 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

4. 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?

5. 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

6. 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

7. What is a Collateral Attack? In other words: If an administrative remedy is provided by statute GO TO THE ADMINISTRATIVE BODY FIRST!

8. 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.

9. 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

10. 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.

11. Why Can’t You Collaterally Attack an Order? Some orders can be collaterally attacked 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 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

12. Orders that Cannot be Collaterally Attacked Common “Acts” that prevent collateral attacks on orders issued under the Act; Common “Acts” that prevent collateral attacks on orders issued under the Act; –Building Code Act –Planning Act –Fire Protection and Prevention Act

13. Orders that Can be Collaterally Attacked A common “Act” we deal with that allow collateral attacks on orders issued under the Act; 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”)

14. Five factors should be considered in determining whether a collateral attack is permissible (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 failing to comply with the order (5) the penalty on a conviction for failing to comply with the order Maybrun Mines paragraph 15

15. Five factors should be considered in determining whether a collateral attack is permissible (1) the wording of the statute (1) the wording of the statute The purpose of the Act is to protect public and societal interests by creating regulatory offences The purpose of the Act is to protect public and societal interests by creating regulatory offences Maybrun Mines at paragraph 16

16. Five factors should be considered in determining whether a collateral attack is permissible (2) the purpose of the legislation (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 Objective of the Act would be undermined if court permitted to rule on the grounds for making the order Maybrun Mines at paragraph 16

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

18. Five factors should be considered in determining whether a collateral attack is permissible (4) the kind of collateral attack (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 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 Maybrun Mines at paragraph 17

19. 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 (5) the penalty on a conviction for failing to comply with the order The penalty is a fine rather than imprisonment The penalty is a fine rather than imprisonment Maybrun Mines at paragraph 17

20. If people were free to attack the validity of orders once charges were laid it would: Discredit administrative tribunals Discredit administrative tribunals Decrease chances of conciliation & co- operation Decrease chances of conciliation & co- operation Harden relations between governments & citizens Harden relations between governments & citizens Undermine administrative schemes which are designed to respond to situations requiring immediate remedial action Undermine administrative schemes which are designed to respond to situations requiring immediate remedial action Maybrun Mines at para. 42

21. 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

22. Proper Method to Dispute Order The Act allows for an appeal process The Act allows for an appeal process Usually two routes/chances of appeal 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

23. Proper Method to Dispute Order Orders should contain clear appeal instructions Orders should contain clear appeal instructions Inspectors/enforcement should make the appeal provisions clear see 1353837 Ontario paragraph (100) Inspectors/enforcement should make the appeal provisions clear see 1353837 Ontario paragraph (100)

24. Case law Hoy [2008] O.J. No. 982 (Good Property Standards example) Hoy [2008] O.J. No. 982 (Good Property Standards example) Al Klippert Ltd [1998] S.C.J. No. 33 Al Klippert Ltd [1998] S.C.J. No. 33 Maybrun Mines [1998] 1 S.C.R. 706 Maybrun Mines [1998] 1 S.C.R. 706 1353837 Ontario [2007] O.J. No. 433 (Good FPPA example) 1353837 Ontario [2007] O.J. No. 433 (Good FPPA example)

25. Case law Hoy, Klippart, Maybrun, 1353837 Ontario Hoy, Klippart, Maybrun, 1353837 Ontario For your electronic copies please send your request too - melinda.fartsalas@york.camelinda.fartsalas@york.ca or mark.mcdonnell@york.ca or mark.mcdonnell@york.ca melinda.fartsalas@york.ca mark.mcdonnell@york.ca ted.allen@york.ca

26. How Do I Defend a Collateral Attack? Moot court example Moot court example