Building Permit No Guarantee

January 2016

The use of land in Ontario is governed by many complex and inter-related provincial laws and regulations. The Building Code Act requires that a building permit be issued by the municipal chief building official before construction or demolition of any building. Prior to the issue of a building permit, the chief building official must satisfy himself that the proposed building, construction or demolition does not contravene the Building Code Act, the building code, or “any other applicable law”. Faced with an alleged contravention of another “applicable law” following issue of the permit and commencement of construction, will this determination by the chief building official and his issuance of the permit protect the permit recipient from conviction?

The Ontario Court of Appeal recently considered this issue in a case where a conservation authority asserted that construction of two hog barns and a liquid manure storage tank was contrary to regulations under the Conservation Authorities Act even though a building permit had been issued for their construction. In the prosecution of the landowner instituted by the conservation authority, the lower court had acquitted the landowner for constructing the building in a swamp or area subject to flooding contrary to the regulations on the basis that the landowner had acted in good faith in reliance on the issuance of the building permit and was entitled to rely on the building permit even if it was issued in error. The Court of Appeal set aside the acquittal and ordered a new trial holding that the landowner could not rely on the building permit to avoid a conviction for contravention of “other applicable law”.

In coming to this conclusion, the majority of the Court of Appeal held that, although the building permit establishes determination by the chief building official that the proposed construction complies with all applicable law, good faith reliance by the recipient on the permit to establish compliance with all applicable laws cannot be inferred simply from issue of the permit. The Court stated:

   “I am especially unwilling to infer good faith and reliance on the facts of this case and bearing in mind the statute in question. The respondents were not applying for a building permit to construct a backyard deck. Rather, they sought permission to construct a liquid pig manure storage tank 160 feet in diameter and 12 feet deep. This storage tank would be located in rural Ontario and, specifically, in a location where, it is clear from the exhibits, including aerial photographs, there are obvious wetlands environmental concerns.”

The dissenting judge would have permitted the landowner to rely on the permit even if issued in error to defend the charge by the conservation authority on the basis that the permit was acknowledged to be valid and that any contravention by the landowner resulting from construction in the wetland resulted from officially induced error. However, the majority of the Court rejected this analysis and held that, before such a defence can arise, the onus is on the defendant to establish not only good faith reliance on the permit but also specific consideration by the defendant of the law contravened and specific advice from an official that the impugned conduct was not illegal. The court stated:

    “Phrased more bluntly, I think it necessary that the respondents demonstrate: (1) that they considered whether it was illegal to build a liquid manure holding tank in a swamp; (2) that they obtained advice from an appropriate official concerning that specific issue; and (3) that, as a result of the advice that they obtained, they believed that it was not illegal to build a liquid manure holding tank in a swamp.”

The Court concluded that “ignorance of the law is no excuse”. A recipient of a building permit cannot simply rely upon the issue of the permit to establish that proposed construction complies with “other applicable law”. The building permit will only assist in defence of a subsequent prosecution where the landowner has specifically addressed with the chief building official whether or not the proposed construction is in compliance with the allegedly contravened legislation or regulation and can demonstrate reliance on advice received from the chief building official that there is no such contravention.