COURT OF APPEAL FOR ONTARIO
Gillese J.A. (In chambers)
BETWEEN
Antorisa Investments Ltd. and 1785037 Ontario Ltd.
Applicants
and
The Corporation of the City of Vaughan
Respondent
Orlando Rosa and David Outerbridge, for the applicants
Andrew J. Heal and V. Arman, for the respondents
Heard: September 5, 2012
On application for leave to appeal under s. 131 of the Provincial Offences Act from the judgment of Justice Ronald A. Minard of the Ontario Court of Justice, dated March 26, 2012, which allowed the appeal by the respondent City of Vaughan from the judgment of Justice of the Peace Adele Romagnoli, dated June 6, 2011, with reasons reported at [2012] O.J. No. 3584.
Gillese J.A.:
1The Applicants operate an Active Green + Ross location in Vaughan. They are licensed to operate as an automotive retail store. They were charged with operating a “public garage” contrary to the City of Vaughan (the “City”) By-law 1-88, s. 5.2 and, therefore, with committing a violation of s. 67(1) of the Planning Act, R.S.O. 1990, c. P.13.
2Midway through the prosecution’s case, the trial judge stayed the proceedings. She ordered a stay based on her conclusion that the prosecution was an abuse of process. In reaching this conclusion, the trial judge relied on the “clear” evidence of the City’s by-law enforcement officer that no offence had been committed on the offence date or any other date on which she (the by-law enforcement officer) had attended the premises.
3The City appealed.
4The appeal judge allowed the appeal, reversed the stay and ordered a new trial.
5The Applicants seek leave to appeal to this court, pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33.
6After hearing oral argument on the motion, I advised the parties that I would grant leave to appeal, with brief reasons to follow. These are the promised reasons.
The Test for Granting Leave – Section 131 of the Provincial Offences Act
7Section 131 of the Provincial Offences Act reads as follows:
- (1) A defendant or the prosecutor or the Attorney General by way of intervention may appeal from the judgment of the court to the Court of Appeal, with leave of a judge of the Court of Appeal on special grounds, upon any question of law alone or as to sentence.
(2) No leave to appeal shall be granted under subsection (1) unless the judge of the Court of Appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.
8The law on s. 131 is well-settled: see, for example, R. v. Castonguay Blasting Ltd., 2011 ONCA 292 (in Chambers), at paras. 14-15. In order for the Applicants to obtain leave, they must establish: (i) special grounds; (ii) on a question of law alone; and (iii) that, in the particular circumstances of this case, it is essential in the public interest or for the due administration of justice that leave be granted. What constitutes “special grounds” in s. 131(1) is informed by the requirement in s. 131(2) that it is essential in the public interest or for the due administration of justice that leave be granted. The threshold for granting leave is very high.
Analysis
9The Applicants raise several grounds of appeal, the thrust of which is that the appeal judge went beyond the scope of permissible appellate review and second-guessed the trial judge’s exercise of discretion. In essence, the Applicants say that the appeal judge’s focus was on the merits of the case instead of abuse of process and, as a consequence, he erred by, among other things, reweighing evidence, making factual findings for which there was no evidentiary foundation and making evidentiary rulings that were not available to him.
10While some of the grounds of appeal might arguably be classified as mixed questions of law and fact, I am satisfied that some raise questions of law alone. As the various grounds that have been raised are interrelated, I would permit the appeal to go ahead as it has been framed rather than attempting to restrict the issues on appeal in some fashion.
11This case raises significant questions about the laying of charges by enforcement officers, a matter with consequences far beyond the parties to this particular case. Enforcement officers across the province are responsible for investigating and recommending the laying of charges under a wide array of legislation. Their actions affect the daily lives of Ontario citizens. Accordingly, the due administration of justice and the public interest requirements are met: see Maitland Valley Conservation Authority v. Cranbrook Swine Inc., 2001 CarswellOnt. 3855 (C.A) (in Chambers), at para. 10.
DISPOSITION
12Accordingly, leave to appeal is granted.
Released: September 7, 2012 (“E.E.G.”)
“E.E. Gillese J.A.”