Steven Mitchell v. Steveco Construction, 2021 SKCA 44

Court of Appeal for Saskatchewan Docket: CACV3664 Citation: Mitchell v Candle Lake (Resort Village) , 2021 SKCA 44 Date: 2021-03-24 Between: Steven Mitchell and Steveco Construction Ltd. Appellants (Plaintiffs) And Resort Village of Candle Lake Respondent (Defendant) Before: Schwann, Leurer and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Leurer The Honourable Mr. Justice Kalmakoff On appeal from: QB 79 of 2020, Prince Albert Appeal heard: December 15, 2020 Counsel: Peter A.

Abrametz for the Appellants Nicole Sawchuk for the Respondent Schwann J.A. I. Introduction [ 1 ] This appeal concerns whether a person to whom an administrative order has been issued can collaterally attack the validity of that order in the context of subsequent administrative compliance proceedings. Steven Mitchell commenced the construction of a building in the Resort Village of Candle Lake [Village] without a building permit. The Village issued a stop work order under s. 17 of The Uniform Building and Accessibility Standards Act , SS 1983-84, c U-1.2 [ Act ], directing Mr. Mitchell to cease construction.

When Mr. Mitchell failed to adhere to that order, the Village applied to the Court of Queen’s Bench under s. 23 of the Act for an order directing him to comply with the s. 17 directive by stopping further construction of the building until such time as he obtained a building permit from the Village. [ 2 ] A judge of the Court of Queen’s Bench found that an order had been issued to Mr. Mitchell by the Village pursuant to s. 17 of the Act , and that, in the absence of an appeal from that order, it remained in effect.

Having made those findings, the Chambers judge granted an order pursuant to s. 23 of the Act requiring Mr. Mitchell to comply with the earlier s. 17 order: Candle Lake (Resort Village) v Mitchell (23 June 2020) Prince Albert, QB 79 of 2020 (Sask) [ Chambers Decision ]. [ 3 ] Mr. Mitchell and his company, Steveco Construction Ltd. [Steveco], appeal from the Chambers Decision . For ease of reference, mention of Mr. Mitchell throughout my decision is intended to refer to both appellants. [ 4 ] For the reasons expressed below, the appeal must be dismissed. I. Background [ 5 ] Mr.

Mitchell is a director and officer of Steveco, which is a Saskatchewan company involved in commercial, industrial and residential construction. Mr. Mitchell’s shop, from which his business operated, was destroyed by fire on April 3, 2019. Mr. Mitchell was determined to rebuild it. According to the affidavit of the Village administrator, Heather Scott, in a July 8, 2019, meeting with Mr. Mitchell, she informed him that he required a building permit to construct a replacement building. [ 6 ] Several months later, Ms. Scott contacted Mr.

Mitchell in response to his application for a development permit he had submitted. She identified several missing but important elements (e.g., setbacks and building dimensions) and informed him that he had to provide the required information forthwith. Mr. Mitchell was also given the contact information for the Village’s building inspector, Chris Gates. [ 7 ] In the midst of these ongoing discussions, the community safety officer for the Village, Lori Kosowan, noticed construction of a new building taking place on Mr. Mitchell’s property. She was informed by Mr.

Gates that a building permit for that site had not been issued. This information led Ms. Kosowan to post what she described as a stop work order on the site on October 17, 2019. [ 8 ] Ms. Kosowan’s actions did not sit well with Mr. Mitchell. According to Ms. Kosowan, an altercation between them occurred later that day when Mr. Mitchell followed her very closely with his truck. When Ms. Kosowan stopped, Mr. Mitchell allegedly began shouting, shaking his fist and threatening to press charges against her for trespassing. Undeterred, Ms.

Kosowan continued to surveil the site in the days that followed, and she continued to observe ongoing construction. On October 25, 2019, while parked across the street from the site, Mr. Mitchell approached Ms. Kosowan’s vehicle in what she described as a threatening manner. Ms. Kosowan said that once again he followed her closely in his truck and verbally threatened her. A week following that incident, Ms. Kosowan noticed that a steel roof and exterior walls had been erected on Mr. Mitchell’s structure.

[ 9 ] With construction proceeding unabated, and in spite of Ms. Kosowan’s stop work order, Mr. Gates issued what he also described as a stop work order on October 29, 2019 [Order]. It provides as follows: ORDER TO REMEDY CONTRAVENTION PURSUANT TO

SECTION 17 OF THE UNIFORM BUILDING AND ACCESSIBILITY STANDARDS ACT, C. U1.2 … Re: Non-permitted Construction I, Chris Gates, Building Official for the Resort Village of Candle Lake visited: Lot 08, Block 111, Plan 10183376 32 Industrial Drive Candle Lake, SK on October 28, 2019 The following items were found to be in contravention of the Uniform Building and Accessibility Standards Act : CONTRAVENTION(S): 1. Construction has commenced for which no building permit has been issued. YOU ARE HERBY ORDERED to carry out the following: l.

Stop work of the non-permitted structure until the local authority deems that all items under this order have been satisfied, and a building permit has been issued for the above noted building. UBAS Act ,

Section 22: Every person who fails to comply with an order made pursuant to Sections 17 or 18, is guilty of an offence and liable on

summary conviction: • in the case of an individual, to a fine of not more than $5,000 and, in the case of a continuing offence, to a further fine of not more than $5,000 for each day during which the offence continues; • in the case of a corporation, to a fine of not more than $10,000 and, in the case of a continuing offence, to a further fine of not more than $10,000 for each day during which the offence continues. (All emphasis in original) [ 10 ] In addition, Mr. Gates sent an email to Mr. Mitchell on the same day as the Order was issued containing further instructions. A more detailed letter to Mr.

Mitchell followed on November 3, 2019, setting out the particulars that were required for a building permit and informing him of the need for his plans to be prepared by a structural engineer. [ 11 ] Mr. Mitchell did not appeal the Order under s. 18 of the Act . That

section provides that building owners who are subject to a s. 17 order may appeal it to the Saskatchewan Building and Accessibility Standards Appeal Board [Appeal Board]. [ 12 ] Mr. Mitchell deposed that, in early December of 2019, he delivered an application for a building permit to the Village along with detailed plans that he claims had been approved by an engineer. In his March 13, 2020, affidavit, Mr.

Mitchell averred that “when I delivered these stamped plans in December of 2019, I was told by Heather Scott that this was everything that was needed from me and that I could resume construction” (at para 17). [ 13 ] Mr. Mitchell claims to have pressed the Village for a response to his permit application, but none was forthcoming. As far as the Village was concerned, Mr. Mitchell’s application was incomplete. In her March 3, 2020, affidavit, Ms. Scott deposed as follows: 16. On February 11th, 2020, I spoke with the Respondent and he inquired again about his building permit.

I told him again that the building inspector was still awaiting receipt of the outstanding documents prior to being able to issue a permit. I forwarded the Respondent a copy of the building inspector’s previous email listing the outstanding items on that date. [ 14 ] Even though the parties were at an impasse over deficiencies with Mr. Mitchell’s application, Mr. Mitchell continued with construction.

This unsatisfactory state of affairs was the catalyst for an application brought by the Village to the Court of Queen’s Bench under s. 23 of the Act for the following relief: PARTICULARS OF APPLICATION The applicant seeks the following remedy or order: 1) Pursuant to section 23(3) (

a) of The Uniform Building and Accessibility Standards Act , ( Act ) the Respondent, Steven Mitchell, shall comply immediately (stop further construction of the property) with the Order issued by the Applicant, Resort Village of Candle Lake, pursuant to

Section 17 of the Act , dated October 29, 2019, for the property located at Lot 8 Block 111 Plan No. 101833376 Extension 0, being 32 Industrial Drive, Candle Lake, Saskatchewan. 2) The Respondent shall pay to the Applicants, costs of this application fixed at $2,000.00.

[ 15 ] The Village’s application was met by an application brought by Mr. Mitchell and Steveco for “judicial review in the nature of Mandamus for an Order compelling the Resort Village of Candle Lake to issue a Development Permit and Construction Permit to the Applicant, Steveco Construction Ltd”. II. The Chambers Decision [ 16 ] The Chambers judge heard both applications at the same time and then issued a one-page fiat. In connection with the Village’s application for a s. 23 order, he made the following findings of fact: (

a) the Village had issued a stop work order under s. 17 of the Act in relation to the property located on the site; (

b) Mr. Mitchell’s application for a development permit (October 21, 2019) and a building permit (October 19, 2019) were before Mr. Gates when he issued the Order on October 29, 2019; (

c) Mr. Gates had provided Mr. Mitchell with a detailed letter outlining the reasons why the legislated requirements had not been satisfied and that, as a building inspector, “he was permitted to do that under

section 17 of the act”; and (

d) Mr. Mitchell had not appealed from the Order pursuant to the Act , accordingly “the order stands”. [ 17 ] Based on those findings of fact, the Chambers judge concluded as follows (at 1): It is the existing order and as a result, that stop work order has never been overturned it follows that it must be complied with and accordingly, pursuant to

section 23(

a) of the act, the court orders as requested in the amended originating application of March 19, 2019, the relief sought under item 1. [ 18 ] At the request of Mr. Mitchell’s legal counsel, his mandamus application was adjourned to a fixed date to permit him to file additional material in order to address the issue of whether it should be dismissed for failure to exhaust alternative remedies. [ 19 ] The mandamus application has since been adjourned sine die , pending the hearing of this appeal. III. Issues [ 20 ] Mr. Mitchell advances the following three grounds of appeal: (

a) Did the Chambers judge err by incorrectly applying s. 23 of the Act ? (

b) Did the Chambers judge err by failing to address an abuse of process argument Mr. Mitchell had raised in response to the Village’s application and thereby fail to act judicially? (

c) Did the Chambers judge err by failing to sever the mandamus application from the Village’s application? [ 21 ] Since Mr. Mitchell’s argument engages a principle of law that prohibits a collateral attack on the validity of an underlying administrative order, I would re-frame the first issue as follows: (

a) Did the Chambers judge err in failing to allow Mr. Mitchell to challenge the validity of the s. 17 Order in the context of the Village’s subsequent enforcement proceedings? IV. The Legislative framework [ 22 ] Before dealing with each ground of appeal, I find it useful to begin by setting out the provisions of the Act that are material to Mr. Mitchell’s appeal.

Interpretation 2

(1) In this Act : … (a) “accessibility standards” means the standards prescribed pursuant to

Part III; … (d) “building standards” means the standards prescribed pursuant to

Part II … (p) “prescribed” means prescribed in the regulations … . …

Part II Building Standards

Application of

Part 7

(1) Subject to subsections (2) and (3), the owner of each building in Saskatchewan shall ensure that the building is designed, constructed, erected, placed, altered, repaired, renovated, demolished, relocated, removed, used or occupied in accordance with the building standards. … Regulations re building standards 8

(1) The Lieutenant Governor in Council may make regulations: … (

g) governing the construction standards that are to be met with respect to any building or class of building; … (

i) generally providing for standards for any other matter in connection with the design, construction, erection, placement, alteration, repair, renovation, demolition, relocation, removal, use, occupancy or change of occupancy of a building; … (

k) respecting any other matter or thing that he considers necessary to carry out the provisions of this Part. …

PART III Accessibility Standards Application of

Part 10

(1) Subject to subsection (2), the owner of each building in Saskatchewan shall ensure that the building meets the accessibility standards. … Regulations re accessibility standards 11

(1) The Lieutenant Governor in Council may make regulations: … (

b) prescribing accessibility standards requiring the combination of various elements of the built environment to allow entrance to, egress from and use of buildings, grounds and facilities or any class of buildings, grounds or facilities by the physically disabled; (

c) respecting any other matter or thing that he considers necessary to carry out the provisions of this Part. …

Part IV Permits Regulations re permits 13 The Lieutenant Governor in Council may make regulations: (

a) prohibiting the commencement by any person of construction, erection, placement, alteration, repair, renovation, demolition, relocation, removal, use, occupancy or change of occupancy of any building unless that person is authorized by a permit to do so … . … Bylaws re permits 14

(1) Subject to

section 23.1, a local authority may make bylaws with respect to the matters set out in

section 13. …

PART V Enforcement Orders of building official 17(1) A building official who finds that the building standards or accessibility standards are being contravened may, by notice in writing specifying the nature of the contravention, order the owner of the building or his agents, contractors, employees, successors or assigns or

the registered owner of the land on which the building is situated, within the time prescribed in the notice, to: … (

e) stop the construction, erection, placement, alteration, repair, renovation, demolition, relocation, removal, use, occupancy or change of occupancy of a building in whole or in part as directed by the notice until any conditions prescribed in the notice are, in the building official’s opinion, fulfilled; (

f) do any combination of the things described in clauses (

a) to (e). … Appeal to appeal board 18

(1) An owner of a building may appeal an order made pursuant to

section 17 within 15 days after service of the order on the owner by: (

a) filing a written notice of the appeal with the chief building official; (

b) submitting to the chief building official all substantiating information considered necessary by the chief building official; and (

c) placing a deposit in the prescribed amount with the chief building official.

(2) Within 30 days after all of the things described in clauses (1)(

a) to (

c) have been done, the appeal board shall conduct a hearing, consider the matter and render its decision in writing.

(3) On an appeal of an order made pursuant to subsection 17(1) or (2), the appeal board shall make an order: (

a) confirming the order appealed against where the appeal board is satisfied that compliance with the order would result in compliance with the building standards or the accessibility standards; or (

b) revoking or varying all or any part of the order appealed against where the appeal board is satisfied that: (

i) compliance with the order would not result in compliance with the building standards or the accessibility standards; or (ii) a proposal submitted by the owner will result in conditions that are equal to or better than those that are required or intended by the building standards or the accessibility standards. … Court order 23

(1) The minister or a local authority, as the case may be, may apply to a judge of the court for an order described in subsection (3) if a person: (

a) fails to comply with an order directed to that person pursuant to

section 17 or 18 within the time specified in the order; (

b) refuses to allow a building official or a person appointed by the local authority to carry out pursuant to

section 21 an order made pursuant to

section 17 or 18; (

c) interferes with or attempts to interfere with the carrying out of an order made pursuant to

section 17 or 18; or (

d) demonstrates the intent to contravene an order made pursuant to

section 17 or 18.

(2) An application may be made pursuant to subsection (1) whether or not the person has been prosecuted.

(3) On an application pursuant to subsection (1), a judge of the court may grant an order requiring the person: (

a) to comply with the order made pursuant to

section 17 or 18; (

b) to refrain from interfering in any manner with the carrying out of an order made pursuant to

section 17 or 18; or (

c) to refrain from contravening an order made pursuant to

section 17 or 18. [ 23 ]

Section 13(a), which is referred to above, empowers the Lieutenant Governor in Council to make regulations, among other things, “prohibiting the commencement by any person of construction … of any building unless that person is authorized by a permit to do so”. The authority to enact regulations in relation to any matter set out in s. 13 can also be exercised by a local authority through the enactment of a bylaw to that effect (s. 14). To that end, the Village passed the Resort Village of Candle Lake, bylaw No 8-2006, Building Bylaw (30 April 2006) [ Bylaw 8-2006]. The material portions of that bylaw are these: 4. GENERAL

(1) A permit is required whenever work regulated by the Act and Regulations is to be undertaken,

(2) No owner or owner’s agent shall work or authorize work or allow work to proceed on a project for which a permit is required unless a valid permit exists for the work to be done. …

5. BUILDING PERMITS AND APPLICATIONS

(1) Every application for a permit to construct, erect, place, alter, repair, renovate or reconstruct a building shall be in Form A, and shall be accompanied by two sets of the scaled and detailed plans and specifications of the proposed building, except that when authorized by the local authority or its authorized representative plans and/or specifications need not be submitted. … 9. ENFORCEMENT OF BYLAW

(1) If any building or part thereof or addition thereto is constructed, erected, placed, altered, repaired, renovated, or reconstructed in contravention of any provision of this bylaw, the local authority or its authorized representative may take any measures as permitted by

Part V of the Act for the purpose of ensuring compliance with this bylaw including, but not limited to: (

a) entering a building, (

b) ordering production of documents, tests, certificate, etc. relating to a building, (

c) taking material samples, (

d) issuing notices to owners that order actions within a prescribed time, (

e) eliminating unsafe conditions, (

f) completing actions, upon an owners non-compliance with an order, and adding the expenses incurred to the tax payable on the property, and (

g) obtaining restraining orders. V. Analysis A. Did the Chambers judge err in failing to allow Mr. Mitchell to challenge the validity of the s. 17 Order in the context of the Village’s subsequent enforcement proceedings? 1. Position of the Parties [ 24 ] Mr. Mitchell’s argument is relatively straightforward. He submits that a Court of Queen’s Bench judge is only empowered to grant an order under s. 23 of the Act if the underlying order for which compliance is sought relates to a valid, properly issued order under either s. 17 or s. 18 .

He argues the Order in question was neither a s. 17 nor a s. 18 order and, therefore, he could not be ordered to comply with it. (There is no suggestion that the underlying order in this matter was a s. 18 order; consequently, for purposes of assessing Mr. Mitchell’s argument, my focus will be on his arguments as they pertain to s. 17.) [ 25 ] As mentioned, s. 17 concerns, among other things, the issuance of a stop work order for the contravention of a building or accessibility standard. However, as Mr.

Mitchell points out, the incident that gave rise to the Village’s enforcement measures was his ongoing construction of a new structure without a building permit as required by s. 14(1) of the Act and s. 4 of Bylaw 8-2006. Since the gravamen of the Order directed Mr.

Mitchell to cease construction of the new structure until such time as a building permit was issued, he argues the Order self-evidently did not concern the contravention of a building or accessibility standard, ergo the Order was not a properly issued s. 17 order and cannot be enforced pursuant to s. 23 of the Act . [ 26 ] Although the Order expressly states that it is issued “ Pursuant to s. 17 of The Uniform Building and Accessibility Standards Act , C.

U1.2” (emphasis added), which, as mentioned, is a responsive regulatory measure in connection with a breach of standards, the contravention identified in paragraph 1 of the Order is stated to be this: “Construction has commenced for which no building permit has been issued”. As noted therein, the terms of the Order direct Mr. Mitchell to stop construction of his building until a building permit has been obtained. Nothing in the Order refers to a standard or its breach nor does Mr. Gates’s affidavit identify which standard had been breached. Finally, Mr.

Mitchell argues that failure to obtain a building permit is not, in and of itself, a standard within the meaning of the objects and purposes of the Act . [ 27 ] Those points front and centre, Mr. Mitchell argues the Chambers judge erred in his

interpretation of s. 17 of the Act , misapplied it to the facts of his case and exercised his discretion in relation to s. 23 in disregard of material evidence. As noted above, it is his position that s. 17 can only be invoked where a standard (be it building or accessibility) has been breached and that failure to obtain a building permit is not a standard per se within the meaning of the Act .

He goes on to argue that s. 17 cannot be used as an open-ended regulatory tool to address each and every garden variety incidence of non-compliance with the Act or a bylaw, whatever they may be. [ 28 ] Placed in an appellate context, I understand Mr. Mitchell to argue that in considering whether to grant a s. 23 order, the Chambers judge was obliged to examine the statutory prerequisites for its issuance, which, he submits, included an examination of the validity of the underlying order.

As the argument goes, had the Chambers judge approached the Village’s application in this manner, he would have found himself without authority to make an order under s. 23 . For this reason, Mr. Mitchell says the Chambers Decision cannot stand and must be set aside.

[29] In its factum, the Village responds to Mr. Mitchell’s position by characterizing the contravention of standards in this way:“proceeding to commence construction of a building without having an issued permit and by not obtaining an exemption to confirm thatthe building and accessibility standards did not apply to his building”. Since the Act permits a local authority to make a bylaw that requiresa person to obtain a building permit prior to the commencement of construction, and because construction must proceed as per allapplicable standards, the Village says Bylaw 8-2006 must be seen as a standard of sorts.

In short, the Village argues that failure to obtain apermit may be addressed by court order under s. 23. 2. Findings relevant to this argument [30] It is helpful to revisit the findings that bear directly on Mr. Mitchell’s argument. First, the Chambers judge found that theVillage had issued a s. 17 order in relation to Mr. Mitchell’s construction. On this point, he said as follows: “The court is satisfied … thaton October 29, 2019, an order to remedy the contravention was issued pursuant to

section 17 … . That stated the contravention to be thatconstruction has commenced for which no building permit has issued and a stop work order was made”. Mr. Mitchell did not appeal fromthis finding of fact; at least, not in a direct way. [31] Second, the Chambers judge found as a fact that Mr. Mitchell had not appealed the Order under s. 18 of Act. This state of playcaused the Chambers judge to conclude – as he put it – “the order stands”. Here, I understand the Chambers judge to have implicitlyconcluded that if Mr.

Mitchell had harboured concern about the vires or validity of the Order, his recourse was to appeal it under s. 18(1)of the Act. However, having failed to do so, when the Village’s application for a s. 23 order came before him, the Chambers judge foundthat the Order – as it stood at the time of the Chambers application – was a properly issued s. 17 order. Although the Chambers judge didnot refer to the doctrine of collateral attack by name, I take him to have invoked that principle in addressing Mr. Mitchell’s line ofargument. [32] With those introductory comments in mind, I turn to the applicable law. 3.

Applicable law [33] Mr. Mitchell’s appeal raises the doctrine against collateral attack.

Collateral attack occurs when a party attempts to overturn anearlier decision within the context of subsequent proceedings, even though the prior order was either not appealed or unsuccessfullyappealed: “This rule holds that ‘a court order, made by a court having jurisdiction to make it’, may not be attacked ‘in proceedings otherthan those whose specific object is the reversal, variation, or nullification of the order or judgment’” (R v Litchfield, (SCC), [1993] 4 SCR 333 at 349 [Litchfield], quoting R v Wilson, (SCC), [1983] 2 SCR 594 at 599).

The underlying basisfor this doctrine is found in the following oft-quoted passaged from Litchfield (at 349): The rationale behind the rule is powerful: the rule seeks to maintain the rule of law and to preserve the repute of the administration ofjustice. To allow parties to govern their affairs according to their perception of matters such as the jurisdiction of the court issuing theorder would result in uncertainty. Further, “the orderly and functional administration of justice” requires that court orders be consideredfinal and binding unless they are reversed on appeal (R. v.

Pastro, [(1988), (SK CA), 42 CCC (3d) 485 (Sask CA)], atp. 497). [34] The purpose served by the doctrine against collateral attack is to protect the fairness and integrity of the administration ofjustice by preventing a multiplicity of proceedings. In British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52, [2011]3 SCR 422 [Figliola], the Supreme Court cast it in these terms: [28] The rule against collateral attack similarly attempts to protect the fairness and integrity of the justice system by preventing duplicativeproceedings.

It prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from adifferent forum, rather than through the designated appellate or judicial review route … . [35] This rule reflects, as noted in R v Bird, 2017 SKCA 32, [2017] 8 WWR 684, the underlying theory that “a court order may onlybe attacked in the proceedings with the specific object of doing just that” (at para 32).

See also R v Envirogun Ltd., 2018 SKCA 8 atpara 39, [2018] 3 WWR 247 [Envirogun]). [36] The Supreme Court decision in R v Consolidated Maybrun Mines Ltd., (SCC), [1998] 1 SCR 706 [Maybrun],is considered the leading authority on the question of whether the doctrine against collateral attack applies to administrative orders. Byway of background, the appellant company had largely disregarded an environmental order that had been made under the EnvironmentalProtection Act, RSO 1980, c 141 [EPA], with respect to an abandoned gold and copper mine.

The company neither appealed the order tothe Environmental Appeal Board nor sought judicial review. The appellant was subsequently charged under the EPA with failing tocomply with the administrative order and sought to attack the validity of the underlying order in the course of the prosecution.

When thematter came before the Ontario Court of Appeal, that court had little difficulty extending the principle of law set out in Litchfield toadministrative orders. [37] On further appeal to the Supreme Court, L’Heureux-Dubé J. began her analysis with some general observations about theincreasing prevalence of regulatory intervention into a wide range of human activity.

She discussed the need to strike a balance between,on the one hand, ensuring the efficacy and importance of administrative structures in a contemporary society and, on the other, protectingthe rights of individuals who may be affected when government oversteps its boundaries: [27] In order to ensure the integrity of these administrative structures, while at the same time seeking to protect the rights of individualsaffected by government actions, the legislature is free to set up internal mechanisms and establish appropriate forums to enable suchindividuals to assert their rights.

In considering the requirements resulting from the rule of law and the rights of a person accused of non-compliance with an administrative order, it is important not to isolate the penal proceedings from the whole of the process established bythe legislature. [38] In determining whether a person facing a penal charge for failing to comply with an administrative order can challenge thevalidity of the underlying order in those proceedings, L’Heureux-Dubé J. said it was a question of legislative intent. The Court adopted,

with modification, five factors that had been identified by the Ontario Court of Appeal for use in aid of discerning legislative intent: (

a) the wording of the statute from which the power to issue the order derives; (

b) the purpose of the legislation; (

c) the availability of an appeal; (

d) the nature of the collateral attack in light of the appeal tribunal’s expertise and raison d’être; and (

e) the penalty on a conviction for failing to comply with the order. [39] Justice L’Heureux-Dubé cautioned against applying those factors in the interpretive process inflexibly or in a mechanical way: [46] … From this perspective, the factors set out above are not independent and absolute criterial, but important clues, among others, fordetermining the legislature’s intention. In doing this, it must, inter alia, be presumed that the legislature did not intend to deprive citizensaffected by government actions of an adequate opportunity to raise the validity of the order. The

interpretation process must, therefore,determine not whether a person can challenge the validity of an order that affects his or her rights, but whether the law prescribes aspecific forum for doing so. (Emphasis added) [40] Justice L’Heureux-Dubé then summarized the law in relation to collateral attack on an administrative order in a penal court inthis way: [52] In

summary, the question whether a penal court may determine the validity of an administrative order on a collateral basis depends onthe statute under which the order was made and must be answered in light of the legislature’s intention as to the appropriate forum. Indoing this, it must be presumed that the legislature did not intend to deprive a person to whom an order is directed of an opportunity toassert his or her rights.

For this purpose, the five factors suggested by the Court of Appeal, as reformulated here, constitute important cluesfor determining the legislature’s intention as to the appropriate forum for raising the validity of an administrative order. See also R v Al Klippert Ltd., (SCC), [1998] 1 SCR 737 [Klippert]. [41] Maybrun and Klippert involved situations where the validity of an administrative order was attacked in the context of asubsequent prosecution for non-compliance with that order. Mr. Mitchell’s situation is different.

He seeks to challenge the validity of theunderlying order in the context of a subsequent application for an administrative compliance order, not in the context of penal proceedings.While that specific issue has yet to be addressed by this Court, guidance can be taken from appellate-level decisions that have grappledwith it. [42] In Alberta (Energy Resources Conservation Board) v Sarg Oils Ltd., 2002 ABCA 174, [2002] 10 WWR 217 [Sarg Oils] (leaveto appeal to SCC refused, [2003] 1 SCR xvii), the appellant, the Energy Resources Conservation Board [Board], sought to recover the costof well abandonment from a well licensee, Sarg Oils Ltd. [Sarg].

Sarg was the licensee of 15 wells, which it agreed to sell to Sundial Oil &Gas Ltd. [Sundial]. The Board identified deficiencies in Sundial’s application for approval of the well licence transfers, but, by this pointin time, Sundial had already sold the wells and the sites had been stripped. The following year, the Crown petroleum and natural gasleases were cancelled due to non-payment of rent and the Board, among other actions, issued an abandonment order requiring Sarg (whichremained the licensee) to submit an abandonment plan and abandon the wells.

Sarg did not abandon the wells nor did it appeal the Board’sabandonment order under the appeal mechanism contained in s. 43 of the Energy Resources Conservation Act, RSA 1980, c E-11 [ERCA](with a subsequent appeal to the Court of Appeal possible under s. 44 of the ERCA). The Board carried out the abandonment itself andthen billed Sarg for the cost. When Sarg refused to pay, the Board issued a statement of claim.

The trial judge rejected the Board’sargument that Sarg’s defence to the Board’s claim for the abandonment costs was a collateral attack on the validity of the underlyingBoard orders. [43] The Alberta Court of Appeal set aside the trial judge’s decision. In doing so, it had little difficulty concluding that the doctrineagainst collateral attack should not be restricted to circumstances where an administrative order is attacked in subsequent penalproceedings.

In this regard, that Court said as follows: [35] While Klippert and Maybrun both involved collateral attacks against tribunal orders in later non-compliance proceedings, nothingtherein suggests that they ought to be limited to criminal proceedings. Indeed, the purpose behind the collateral attack rule (to preserve theintegrity of the administrative system) applies equally to a case like this: Re Grossman (Bankrupt) (1998), 1998 ABQB 381 , 222A.R. 139 (Q.B.). Moreover, in Klippert and Maybrun, the potential penalty was financial, not imprisonment.

From that point of view, theyare not dissimilar to this case. [44] A similar argument arose in St. Clements (Rural Municipality) v Zucawich, 2013 MBCA 65, [2013] 10 WWR 226[St. Clements], where a rural municipality had issued an order confirming the unsightly condition of the appellant’s property and orderedthat he clean it up. When the appellant ignored that order, the rural municipality attempted to carry out the clean-up itself, but was deniedaccess to the appellant’s property.

The rural municipality re-inspected the appellant’s property and issued a new clean-up order, this timerequiring that the property be cleaned up by a certain date. It warned the appellant that failure to do so would result in the ruralmunicipality arranging for the clean-up at the appellant’s expense and also informed him of his right to appeal the order. The appellant didnot appeal. [45] When the rural municipality was once again denied access to the appellant’s property, it applied for a statutory restrainingorder.

Among other grounds, the appellant resisted the imposition of a court order by alleging the underlying clean-up order was invalid.The application judge, applying the dicta in Maybrun and Klippert, concluded that the appellant was precluded from attacking the validityof the clean-up order in the context of subsequent enforcement proceedings.

[ 46 ] On appeal, as he did in the court below, the appellant argued that the doctrine prohibiting collateral attack was limited to situations involving a subsequent criminal prosecution for non-compliance with an underlying administrative order.

In a supplementary brief filed by the appellant’s counsel, he framed his position in this way: “It is clear that the doctrine as contemplated in Consolidated [ Maybrun ] deals specifically with cases where the attack on an order is raised as a defence to a conviction for failure to comply with that order, rather than as grounds for this Honourable Court to grant a secondary order to enforce the first” ( St.

Clements at para 32 ). [ 47 ] In addressing this issue, the Manitoba Court of Appeal was guided by the reasoning in Sarg Oils and other lower-court decisions: for example, Prince Resource Corporation v Alberta (Energy & Utilities Board) , 2003 ABCA 243 , 346 AR 226, and Edmonton (City) v Cormier , 2002 ABQB 133 . It then concluded as follows ( St.

Clements ): [42] These Alberta cases clearly support the view that the Consolidated Maybrun/ Klippert analysis will apply not only with respect to collateral attacks of administrative orders during subsequent penal proceedings, but also during subsequent enforcement proceedings in the civil courts. (See also Michaud v. Manitoba , 2011 MBQB 34 , 263 Man. R. (2d) 62, and this court’s obiter comments on appeal at 2012 MBCA 21 at para. 14 , 280 Man. R. (2d) 1.) [ 48 ] Respectfully, I see no principled basis not to adopt the approach taken in Sarg Oils and St. Clements to the circumstances at hand.

As I see it, there are several reasons why the doctrine of collateral attack should extend to circumstances where a party ignores a regulatory appeal process and then seeks to challenge an administrative order in subsequent administrative compliance proceedings. These include the following: (

a) it is consistent with the increasing prevalence of and tendency toward using administrative enforcement measures and mechanisms in regulatory statutes, rather than relying on prosecutions to ensure compliance; (

b) not doing so would undermine this particular legislative scheme, which is purposefully structured to strike a balance between the need for facilitating rapid response to construction issues and access to justice; (

c) not doing so could undermine and discredit this statutory tribunal and fail to reflect the fact that it has expertise in this area; (

d) not doing so could potentially harden relations between the regulator and regulatee if the latter was allowed to defer a legal challenge to the validity of an order yet continue with construction in spite of potential problems; (

e) there is a stronger argument for allowing collateral attack when a respondent faces a penal proceeding rather than when it faces other types of proceedings; and (

f) it is consistent with the notion of finality of litigation, avoidance of a multiplicity of proceedings and preservation of the integrity of the administration of justice. [ 49 ] With that, I turn to a consideration of the Maybrun framework of analysis and how it assists in resolving the question of what forum the Legislature intended for the validity of a s. 17 order to be determined. 4. Application of the Maybrun factors a. Wording of the statute [ 50 ] The first Maybrun factor is the wording of the statute.

Broadly speaking, the Act is designed to achieve uniformity with the construction, renovation and fire safety of buildings on a province-wide basis. It does so by adopting uniform national codes and standards of practice such as the National Building Code of Canada 2015 , the National Fire Code of Canada 2015 and the National Energy Code of Canada for Buildings 2017 .

Under the regulatory framework of the Act , building owners are required to comply with standards prescribed for construction and renovation projects and local authorities are responsible for the enforcement of the Act , generally, and with any standard adopted under the Act specifically. [ 51 ] Building standards are dealt with under

Part II of the Act and accessibility standards under

Part III. In very general terms, the owner of each building in Saskatchewan must design, construct, alter, repair and renovate their buildings “in accordance with the building standards” (s. 7(1)) and “ensure that the building meets the accessibility standards” (s. 10(1)). To round out the building standards part of the Act , s. 8(2) enables the Lieutenant Governor in Council to prescribe a host of regulations in connection with construction and, specifically, prescribes the power to make regulations that adopt all or any part “of the National Building Code of Canada, as amended from time to time …”.

A similar regulation-making provision exists for accessibility standards (s. 11). [ 52 ] To ensure compliance with the provisions of the Act , the regulations, or a condition of a permit, the Act contains a number of enforcement measures under

Part V. [ 53 ] The enforcement tools are varied.

Section 16 of

Part V provides building officials with wide powers, including the authority to enter a building at any reasonable hour for the purpose for ensuring compliance with the Act , the regulations, or the conditions of a permit.

Section 17 empowers building officials to issue a contravention order directing the party to either comply with the conditions set out in a notice or to stop construction (repeated here for reference): Orders of building official 17

(1) A building official who finds that the building standards or accessibility standards are being contravened may, by notice in writing specifying the nature of the contravention, order the owner of the building or his agents, contractors, employees, successors or assigns or the registered owner of the land on which the building is situated, within the time prescribed in the notice, to: (

a) comply with the general or specific conditions prescribed in the notice;

… (

e) stop the construction, erection, placement, alteration, repair, renovation, demolition, relocation, removal, use, occupancy or change of occupancy of a building in whole or in part as directed by the notice until any conditions prescribed in the notice are, in the building official’s opinion, fulfilled; (

f) do any combination of the things described in clauses (

a) to (e). [ 54 ] Pursuant to s. 18, an owner of a building may, within 15 days after service of a s. 17 order, appeal that order to the Appeal Board and, thereafter, on a question of law, to the Court of Queen’s Bench (s. 19). The features of this statutory appeal are discussed below. At this stage of the analysis, it is sufficient to note that, read together, s. 17 and s. 18 can be interpreted as providing a regulatory framework designed to ensure immediate compliance with the Act balanced against efficient and timely access to an appeal process before a specialized tribunal. [ 55 ] Other enforcement tools at the disposal of a building official include the following: (

a) the issuance of administrative penalties or discipline orders (s. 21.1–21.6); (

b) prosecution for contraventions of the Act , the regulations or the bylaws; and (

c) issuance of a court order under s. 23 to, among other things, direct the person to whom a s. 17 order is made to comply with it. b. Purpose of the legislation [ 56 ] The second Maybrun factor requires an examination of the purpose of the legislation. As mentioned, the purpose of the Act is to ensure, subject to certain enumerated exceptions, conformity with uniform building and accessibility standards on a province-wide basis. To achieve that objective, the Act imposes responsibility at the local level for ensuring compliance with adopted standards, the Act , the regulations and the bylaws.

To that end, and as noted above, the legislation provides for a broad array of regulatory powers. [ 57 ] One such mechanism is permitting. In that vein, s. 13 and s. 14 furnish the Lieutenant Governor in Council and local authorities, respectively, with the power to make regulations, inter alia , providing for the issuance, form and content of permits for the construction of buildings. [ 58 ] The need for a building permit – a precondition to construction – is integral to the objectives of the Act .

In its operation, permitting plays the important role of ensuring adherence to uniform building and accessibility standards by requiring initial upfront oversight and scrutiny of proposed construction. This oversight is designed to ensure that the proposed construction meets all prescribed building and accessibility standards. In this respect, permitting is integral to achieving compliance with standards since its purposes are to (

a) alert owners to the existing standards and their intricacies, (

b) address issues before construction begins, not later when rectification is more difficult and expensive, and (

c) set out a roadmap for successful construction from the regulatory end of things. Finally, as discussed below, by allowing aggrieved individuals to assert their rights, the appeal mechanism contained in s. 18 of the Act provides an effective counter-balance to the possible over-reach of power by a local authority. [ 59 ] Seen in this way, allowing an order to be collaterally attacked after the fact, i.e., after a building is wholly or partially constructed, is incongruous with what the Legislature has intended. Allowing for collateral attack after the fact sends the wrong signal.

It could incentivise owners to blithely ignore standards, resist compliance, or defer remediation in the hope a local authority will opt against taking any enforcement measures. [ 60 ] In conclusion, the Act suggests that the Legislature intended to create a uniform approach to building construction in this jurisdiction and to endow building officials with considerable regulatory authority to monitor adherence to that regulatory regime and, if necessary, enforce compliance with it.

Many of the powers are preventative in nature, presumably to ensure public safety and secondarily to nip problems in the bud before the cost of remediation becomes cost prohibitive. A preventative purpose is an important feature in discerning the scheme of

an Act ( Maybrun at para 54 ). c. Availability of an appeal mechanism [ 61 ] The third Maybrun factor deals with the availability of an appeal mechanism. As mentioned, the Act provides for a statutory right of appeal from a s. 17 order. In this regard, s. 18 specifically permits a building owner, who is subject to a s. 17 order, to appeal that order to the Appeal Board within 15 days of service. [ 62 ] The Appeal Board is a statutory tribunal created pursuant to s. 6 of the Act. It is composed of eight members appointed by the Lieutenant Governor in Council.

One of its functions is to hear and determine applications for exemption orders (s. 12) and another is to hear appeals from s. 17 orders.

To that end, s. 6(7) gives the Appeal Board broad scope to establish rules or procedures respecting the hearing of appeals before it and vests it with some of the powers spelled out in The Public Inquiries Act, 2013 , SS 2013, c P-38.01 . [ 63 ] The Appeal Board is mandated to render a written decision within 30 days from the date of the appeal hearing and is empowered to make one of the following orders in relation to appeals from a s. 17(1) order (repeated here for reference): Appeal to appeal board 18

(3) On an appeal of an order made pursuant to subsection 17(1) or (2), the appeal board shall make an order: (

a) confirming the order appealed against where the appeal board is satisfied that compliance with the order would result in compliance with the building standards or the accessibility standards; or (

b) revoking or varying all or any part of the order appealed against where the appeal board is satisfied that: (

i) compliance with the order would not result in compliance with the building standards or the accessibility standards; or

(ii) a proposal submitted by the owner will result in conditions that are equal to or better than those that are required or intended by the building standards or the accessibility standards. [ 64 ]

Section 19 of the Act provides for a further right of appeal from a decision of the Appeal Board to a judge of the Court of Queen’s Bench on a question of law. As the Act goes on to spell out, the decision of the Court of Queen’s Bench is final. [ 65 ] Read as a whole, the Act is structured in such a way as to provide owners with an expeditious and readily accessible appeal mechanism to a specialized tribunal. It provides cost-effective and timely recourse for aggrieved building owners, with a further level of review on questions of law to the Court of Queen’s Bench. The specifics of the appeal mechanism chosen by the Legislature evince that it (

a) chose a specific forum for contesting s. 17 orders, (

b) made that forum accessible, transparent and efficient, (

c) conferred a supervisory role on the Court of Queen’s Bench, albeit limited to questions of law, and (

d) made the Court of Queen’s Bench decisions final. Although not dispositive of the issue, the existence of a statutory appeal mechanism is a “key element” in the overall analysis ( Maybrun at para 34 ). [ 66 ] Before leaving this factor, I wish to address Mr. Mitchell’s argument that an appeal route was irrelevant to his circumstance and therefore he should not be penalized for deferring his attack on the validity of the Order until it came before the Chambers judge. Mr.

Mitchell argues that an appeal to the Appeal Board would have been a meaningless exercise because he knew that he did not have a building permit when the Order was issued and therefore understood that he was non-compliant. Even though Mr. Mitchell knew he was in breach of the plain wording of the Order by commencing construction without a building permit, he maintains on appeal, as he did in the court below, that the Order itself was invalid. With respect, this is circular reasoning on Mr. Mitchell’s part.

I fail to see how his approach to addressing the s. 17 order in any way has an impact on the Maybrun analysis. d. Kind of collateral attack at issue [ 67 ] As to the fourth factor – the nature of the collateral attack – Maybrun emphasized that the focus should be on the jurisdiction of the appeal tribunal, not on the body that issued the order in question.

Even where a jurisdictional error is alleged, the appropriate question to ask is not whether the issue is jurisdictional in nature but whether the collateral attack “involves considerations that fall within the jurisdiction conferred by statute on the appeal tribunal” (at para 49). [ 68 ] Speaking for the Court in Maybrun , L’Heureux-Dubé J. discussed this factor in these terms: [50] Thus, where an attack on an order requires the consideration of factors that fall within the specific expertise of an administrative appeal tribunal, this is a strong indication that the legislature wanted that tribunal to decide the question rather than a court of penal jurisdiction.

Conversely, where an attack on an order is based on considerations which are foreign to an administrative appeal tribunal’s expertise or raison d’être , this suggests, although it is not conclusive in itself, that the legislature did not intend to reserve the exclusive authority to rule on the validity of the order to that tribunal. This analysis must be conducted in light of the specific characteristics of each administrative scheme.

An approach, such as the one suggested by the Court of Appeal, aimed at establishing a general rule relating to the nature of the attack does not recognize the importance that must be given to the legislature’s intention. [ 69 ] I have already canvassed the make-up of the Appeal Board. While the necessary qualifications and expertise needed to sit on this tribunal are not set out in the Act or regulations, the role and jurisdiction of the Appeal Board provides some insight on the matter.

As mentioned, the Appeal Board exercises an adjudicative function to hear and determine appeals brought pursuant to s. 12 and s. 18 of the Act . In furtherance of that function, the Appeal Board is given broad authority to establish its own rules of procedure for hearing appeals. The scope of its authority is extensive and suggests that the Legislature intended to create a robust appeal process. [ 70 ] In addition to its adjudicative function, it is not without significance that the Appeal Board is also set up to (

a) advise the minister on matters concerning the administration of the Act and its regulations, and (

b) perform any other duties that the minister may direct (s. 6(2)(

b) and s. 6(2)(c)). One possible inference that could be drawn from its consultative role is that some degree of speciality would be required to fulfill that particular function. [ 71 ] Turning to the jurisdiction of the Appeal Board, I begin by noting that its remedial powers under s. 18(3) are broadly crafted. It has the power, for instance, to revoke an order appealed against where satisfied that “compliance with the order would not result in compliance with building or accessibility standards” (s. 18(3)(b)(i)). In my view, as worded, s. 18(3)(b)(

i) provides broad authority for the Appeal Board to assess the very issue Mr. Mitchell is concerned about. In other words, it would be open to the Appeal Board to conclude that, as argued by Mr. Mitchell, a s. 17 order should be revoked because compliance with it would not result in compliance with the building or accessibility standards. While there is assuredly a jurisdictional element to this argument, as I see it, the Appeal Board was statutorily equipped to adjudicate Mr. Mitchell’s specific concern. [ 72 ] That conclusion is augmented by two additional features of this legislation.

First, as noted above, the Appeal Board is assigned responsibility for advising the government on matters concerning the Act generally. To fulfill that function, it makes logical sense that the Appeal Board be composed of members who have a solid grasp of the legislation and the regulations. Second, the limited scope of a subsequent appeal to the Court of Queen’s Bench is noteworthy insofar as it provides that that Court plays a supervisory role in relation to the Appeal Board on questions of law.

As detailed above, the structure and purpose of the Act demonstrate that the Legislature intended for challenges to a s. 17 order be dealt with by an appeal to the Appeal Board. [ 73 ] Finally, even if Mr. Mitchell’s complaint about the Order raises a question that is not within the specific expertise of the Appeal Board, this is but one factor in the broader analysis of legislative intent concerning which forum the Legislature intended to decide the matter: see Klippert at para 14 . e.

Penalty consequence [ 74 ] The fifth and final factor in a Maybrun analysis is the penalty on conviction for failing to comply with the administrative order. The matter before the Chambers judge did not concern the imposition of fines or a prosecution, nor, unlike the situation in Sarg Oils , was Mr. Mitchell facing significant costs associated with obtaining a building permit. At best, I find this factor is neutral in the overall

Maybrun analysis. 5. Conclusion on collateral attack [ 75 ] The application of the Maybrun framework is ultimately an attempt to discern legislative intent with regard to the appropriate forum for an aggrieved person to challenge an administrative order. As discussed above, the Maybrun factors are not absolute: they are simply clues about legislative intent. [ 76 ] By his own admission, Mr. Mitchell did not have a building permit when the Order was issued.

He eschewed the appeal mechanism in an apparent standoff with the Village; yet, almost a year after he began the construction of his new building, chose to attack the validity of the Order in the context of the s. 23 proceedings. I see no tenable basis as to why Mr. Mitchell could not have resorted to the statutory appeal mechanism if he truly thought the Order was invalid. [ 77 ] The appeal processes laid out in s. 18 of the Act is robust. That

section creates an express, expeditious forum for an aggrieved owner to challenge a s. 17 order before the Appeal Board, with further recourse to the Court of Queen’s Bench on questions of law. A Queen’s Bench decision is final. Permitting Mr. Mitchell to attack the validity of a s. 17 order in the context of further enforcement proceedings would, in my view, undermine the integrity of the administrative system and allow him to circumvent the appropriate review mechanisms put in place by the Legislature.

As discussed above, this could have serious ramifications for the local authority, the general public and the building owner alike. [ 78 ] I find most of the factors weigh in favour of a conclusion that the Legislature did not intend for a person to be able to collaterally attack the validity of a s. 17 order in the context of subsequent proceedings to enforce compliance with it. As such, the Chambers judge did not commit an error in law in his

interpretation of the legislative scheme and did not err in refusing to allow Mr. Mitchell to collaterally attack the Order. [ 79 ] In the end result, I am not persuaded by Mr. Mitchell’s argument. B. Abuse of process [ 80 ] Mr. Mitchell next submits that the Chambers judge failed to act judicially by not addressing his abuse of process argument. This argument is rooted in paragraph 5 of his brief of law that was filed in the Court of Queen’s Bench.

It reads as follows: “The building inspector must either know or does not care that no accessibility or building standards have been contravened and Candle Lake is acting in a high-handed manner, has failed to be candid and forthright and their application is an abuse of process”. [ 81 ] In my view, paragraph 5 appears, yet again, to be an attack on the underlying Order that had been issued by Mr. Gates, or on his failure to inspect Mr. Mitchell’s building. As discussed above, the Order was not appealed and, in any event, Mr.

Mitchell concedes that he did not have a building permit on October 29, 2019, when it was issued. As I see it, the thrust of Mr. Mitchell’s argument seems to be that Mr. Gates knew or should have known that he lacked the statutory authority to make an order under s. 17 because no standards had been breached at that point in time. Accordingly, as the argument goes, the Village’s application to confirm the Order under s. 23 somehow amounts to an abuse of process. [ 82 ] As constructed, this argument hinges on Mr.

Gates’s actual knowledge or his reckless disregard as to whether he lacked the legal authority to issue a s. 17 order, yet proceeded nonetheless. Respectfully, this is speculation on the part of Mr. Mitchell. The evidentiary basis for this argument is thin, at best. I see nothing in Mr. Gates’s affidavit that lends itself to that line of thinking nor, for that matter, was he cross-examined on his affidavit with a view to ascertaining his motivation for issuing the order. I would not give effect to this argument. C.

Failure to sever the mandamus application [ 83 ] The last argument concerns the Chambers judge’s failure to sever the mandamus application from the Village’s application . As framed, I understand Mr. Mitchell to argue that the Chambers judge failed to act judicially by declining to address the mandamus application separately, or at all. [ 84 ] I would not give effect to this argument for the simple reason that the mandamus application was adjourned at the request of Mr. Mitchell’s legal counsel.

Although it is not completely clear from the fiat, it appears as though the Chambers judge drew counsel’s attention to several authorities that stand for the proposition that failure to exhaust alternate remedies is a discretionary bar to obtaining prerogative relief. Reading between the lines, it was on that basis Mr. Mitchell’s legal counsel appears to have requested an adjournment. There is no error here. VI. Conclusion [ 85 ] The appeal is dismissed with costs to the Village in the usual way. “Schwann J.A.” Schwann J.A. I concur. “Leurer J.A.” Leurer J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.