Court of Appeal for Ontario
Rosenberg, Watt and Pepall JJ.A.
Between
Tarion Warranty Corporation
Prosecutor/Appellant
and
Alexander Boros
Defendant/Respondent
Carol A. Street and Benjamin Millard, for the appellant
Simon Van Duffelen, for the respondent
Heard: April 23, 2013
On appeal from the judgment of Justice David A. Fairgrieve of the Ontario Court of Justice, dated March 13, 2012, allowing the appeal from the convictions and sentences imposed by Justice of the Peace J. Cottrell on March 21, 2005.
ENDORSEMENT
1We agree with Tarion that Fairgrieve J. erred in allowing the appeal on grounds of appeal that were not raised by Mr. Boros and without giving Tarion an opportunity to address the appeal judge’s concerns about the admissibility of the evidence that had been led at the ex parte trial. See Ontario (Ministry of Labour) v. Modern Niagara Toronto Inc. (2008), 2008 ONCA 590, 91 O.R. (3d) 774 (C.A.). The delay between argument of the appeal and delivery of reasons may also have added to Tarion’s perception that it was not dealt with fairly.
2The issue then is the appropriate remedy. Tarion submits that the appeal should be allowed and the convictions and sentence restored. The difficulty with this remedy is that the appeal judge identified serious gaps in the evidentiary record. In particular, Tarion’s case depended upon the admissibility of exhibits 1 and 2 for their truth. The fact that the investigator identified the documents and where they came from did not make them admissible for their truth absent an exception to the hearsay rule. There was no evidence led at the ex parte trial to show that the notice required by the business record provisions of s. 35 of the Evidence Act R.S.O. 1990, c. E.23 had been complied with. That section provides as follows:
- (1) In this section,
"business" includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise; ("entreprise")
"record" includes any information that is recorded or stored by means of any device. ("document").
(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.
(3) Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days notice of the party's intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same.
(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.
(5) Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged.
3Similarly, ss. 20 or 21 of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31, might have provided a means of proving some of Tarion’s case. Those sections provide as follows:
Any notice or document required by this Act to be served or given may be served or given personally or by registered mail addressed to the person to whom notice is to be given at the person's last known address and, where notice is served or given by mail, the service shall be deemed to have been made on the fifth day after the day of mailing unless the person to whom the notice is given establishes that the person, acting in good faith, through absence, accident, illness or other cause beyond the person's control, did not receive the notice, or did not receive the notice until a later date.
The following statements are admissible in evidence as proof, in the absence of evidence to the contrary, of the facts stated in them for all purposes in any proceeding or prosecution, without the need for proving the office or signature of the Registrar, if the statements purport to be certified by the Registrar:
A statement as to the registration or non-registration of any person.
A statement as to the filing or non-filing of any document or material required or permitted to be filed with the Corporation.
A statement as to any other matter pertaining to a registration, non-registration, filing or non-filing of any person.
4Again, however, it is unclear from this record that Tarion was relying upon those provisions or whether the prerequisites for their application had been satisfied and, in particular, whether the documents had been certified by the Registrar. Had the appeal judge followed the appropriate procedure and notified the parties of his concerns, it would have been open to Boros to rely upon those gaps in the record and argue that these gaps provided additional grounds for his broad ground of appeal that the convictions were unreasonable.
5Given this state of the record, Boros asks that the appeal be dismissed. We cannot accede to that request either. Just as it would have been open to Boros to argue that there were gaps in the record, it would have been open to Tarion to attempt to persuade the appeal judge that there was a basis for admitting the records for their truth or that the case could be made out based on the circumstantial evidence. Alternatively, although we think it somewhat unlikely, Tarion might have applied to the appeal judge to admit fresh evidence to remedy a defect in the record. See for example R. v. Kissick, 1952 27 (SCC), [1952] 1 S.C.R. 343 and R. v. Huluszkiw (1962), 1962 600 (ON CA), 133 C.C.C. 244 (Ont. C.A.). Whether such an application would have succeeded, in the face of the due diligence requirement for admission of fresh evidence is difficult to predict, see for example, R. v. Cheung (1990) 1990 1904 (BC CA), 56 C.C.C. (3d) 381 (B.C.C.A.).
6Finally, we note the apparent error in count #3. Again, while this count might well have been dismissed because of the error in the wording, Tarion ought to have been given the opportunity to argue that it was entitled to apply to amend the count to conform with Mr. Schacht’s testimony, given the broad amendment powers in the Provincial Offences Act, R.S.O. 1990, c. P.33.
7Accordingly, in our view, the only appropriate remedy is to set aside the judgment of the appeal judge and remit the matter to the Provincial Offences Appeal Court, as was done in the Modern Niagara case. Obviously, this is an unsatisfactory state of affairs given the delay. However, both Tarion and Mr. Boros are entitled to due process and given the state of the record, fairness requires that the parties have an opportunity to present their cases. Tarion did not seek costs in the event it was successful. There will be no order for costs.
“M. Rosenberg J.A.”
“David Watt J.A.”
“S.E. Pepall J.A.”