The Rural Voice, 2003-09, Page 641 am especially unwilling to inter
_ood 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
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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.0
Agrilaw is a syndicated column
produced by the full service London
law firm of Cohen Highley LLP. Paul
G. Vogel, a partner in the firm,
practices in the area of commercial
litigation and environmental law.
Agrilaw is intended to provide
information to farm operators on
topics of interest and importance.
The opinions expressed are not
intended as legal advice. Before
acting on any information contained
in this column, readers should obtain
legal advice with respect to their own
particular circumstances and
geographical area.
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