Chantal deSereville

This appeal concerns procedural fairness and the application of s. 11(b) of the Canadian Charter of Rights and Freedoms in the context of a zoning by-law breach trial.

The appellant challenged the trial justice of the peace's summary dismissal of an unfiled s. 11(b) application, arguing that the trial court erred by not allowing submissions and by accepting COVID-19 as an exceptional circumstance justifying delay.

The court held that no formal s. 11(b) application was before the court as it was neither filed nor served, and thus the trial justice did not err in refusing to hear or summarily dismiss the application.

The court approved a bifurcated approach, deferring the ineffective assistance of counsel issue to a later stage.

The appellant, a hookah lounge, appealed the dismissal of its application to quash a municipal smoking and vaping by-law.

The appellant argued that changes to Schedule A of the by-law, which lists set fines and short-form offence wording, after its enactment and municipal consent, invalidated the by-law.

The Court of Appeal affirmed the application judge's decision, holding that the changes to Schedule A were made by the Regional Senior Justice under the authority of the Provincial Offences Act to establish set fines, which is a judicial function, and did not alter the substance of the by-law's prohibitions.

The court found Schedule A was a placeholder and its changes did not invalidate the by-law.

The appellants appealed a decision dismissing their application for a declaration that their current use of lands was a legal non-conforming use under the Planning Act.

The application judge found that the use had changed significantly from the prior legal non-conforming use and that the appellants had abandoned the prior use.

The Court of Appeal dismissed the appeal, upholding the application judge's factual findings and her conclusion that the appellants failed to establish a continuing legal non-conforming use.

The court also confirmed the admissibility of property complaints as factual matters from records kept in the ordinary course of business.

The applicant, operator of a hookah lounge, brought an application to quash the Region of Durham's Smoking By-law No. 28-2019, which prohibited smoking and vaping in public places including hookah lounges.

The applicant argued the By-law was an ultra vires attempt to regulate business and that subsequent changes to the By-law's set fines schedule invalidated it.

The court found that while the application to quash under the Municipal Act was statute-barred, the request for declaratory relief was not.

On the merits, the court held the By-law was a valid exercise of the municipality's power to protect public health and safety, not an improper regulation of business.

The court also found that changes to the set fines schedule by the Regional Senior Justice did not invalidate the By-law.

The application was dismissed.