Court of Appeal for Ontario

Date: 20240913 Docket: C68421

Hourigan, Huscroft and Coroza JJ.A.

BETWEEN

Grand River Conservation Authority Respondent (Respondent)

and

Fredrick Kentner and Patricia Kentner Applicants (Appellants)

Counsel: Jacob R.W. Damstra and Gregory A. Cherniak, for the appellants Steven J. O’Melia, for the respondent

Heard: September 12, 2024

On appeal from the judgment of Justice Michael K. Wendl of the Ontario Court of Justice, dated February 18, 2020, dismissing an appeal from the convictions entered on February 14, 2019 and the sentence imposed on June 25, 2019 by Justice of the Peace Lloyd Phillipps of the Ontario Court of Justice.

Reasons for Decision

A. Introduction

[1] This is an ineffective assistance of counsel appeal, where the legal practitioner is a licenced paralegal. At the conclusion of the appellants’ oral submissions, the appeal was dismissed with reasons to follow. These are our reasons.

[2] The appellants, Fredrick Kentner and Patricia Kentner, appeal from the summary dismissal of their first appeal to a judge of the Ontario Court of Justice sitting as a Provincial Offences Appeal Court (“POAC”). They ask that the dismissal of their first appeal be set aside, their appeal from the convictions be allowed, and findings of not guilty be entered. Alternatively, the appellants request that this matter be remitted to the POAC for a hearing of their substantive appeal from convictions and sentence.

B. Background

[3] The appellants are mother and son residing on a farm property in the Town of Erin, Wellington County. Ms. Kentner and Mr. Kentner are co-owners of the property. Beginning in 2005, Mr. Kentner started importing fill onto the property, allegedly to rehabilitate the land so it could be used for agriculture. He originally worked with the Ministry of Environment to supervise and monitor the fill operation. In 2008, Mr. Kentner began communicating with the Grand River Conservation Authority (the “GRCA”) and the Town of Erin (the “Town”) about the permits required to continue the fill operation. The GRCA was involved because they had jurisdiction over part of the property that encompassed a provincially designated wetland (the “GRCA regulated area”).

[4] Mr. Kentner was advised by the GRCA and the Town that two permits would be required to continue the fill operation and he obtained the first permit from the GRCA that covered work from 2009 until 2012. A second permit was never granted. In 2013, the GRCA sent the appellants a letter alerting them to the fact that the first permit had expired and that a new permit application was required. Mr. Kentner clearly knew that a second permit was required. However, he disagreed with the price for the permit. The initial permit price of $750 was agreeable to him but over time, the cost of the permit increased and included a $0.50 per cubic metre fee for the fill. It was the additional cost per cubic metre that Mr. Kentner objected to.

[5] In 2014, the GRCA visited the property and observed a small amount of fill at the edge of the GRCA regulated area. They directed Mr. Kentner to pull back the fill. Mr. Kentner informed the GRCA that he complied with this direction. The appellants applied for the second permit in April 2016. The GRCA sent another letter to the appellants on April 22, 2016. The letter advised that their application did not contain the required supporting documents or permit fee and could not be processed. Three months after the letter, on July 27, 2016, the GRCA attended the property again. They observed large amounts of fill that had not been there in 2014 and dump trucks actively dumping their loads. The GRCA told Mr. Kentner that he was in violation of the Conservation Authorities Act, R.S.O. 1990, c. C.27. The GRCA flew over the property on September 9 and October 31, 2016, and confirmed that the area of fill continued to expand.

[6] Mr. Kentner testified that he was paid $25 per truck load of fill dumped on the property. He did not reveal to the court his 2016 income from the fill operation. The filling operation continued on the property until December 13, 2016 when the GRCA obtained an injunction from the Superior Court to restrain the unlawful activity.

[7] The GRCA charged both Ms. Kentner and Mr. Kentner with three counts each of undertaking development or permitting another person to undertake development without a permit, contrary to s. 2(1) of Grand River Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses, O. Reg. 150/06 (the “Regulation”), thereby committing an offence contrary to s. 28(16) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended. The charges cover the following three periods: (1) May 3, 2016 to July 27, 2016, (2) September 9, 2016, and (3) September 9, 2016 to October 31, 2016. The Town also charged Ms. Kentner with a violation of s. 6 of the Town of Erin Site Alteration By-Law 16-30 for importation of fill onto areas of the property in excess of 200 cubic metres without a permit on or about December 1, 2016.

[8] Phillipps JP found the appellants guilty of all the charges and imposed fines totalling $25,000 and an order that the property be rehabilitated. The appellants failed to pay the fines until 11 months after the statutory deadline for the filing of their first appeals. To date, the appellants have not complied with the rehabilitation order. Under s. 111(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, the appellants were obliged to pay the fines as a condition of appeal, unless they received a court ordered waiver of compliance.

[9] On appeal to the POAC, Wendl J. dismissed the appellants’ appeal for failure to file materials in relation to the appeal and the waiver application. He explained that he had warned the appellants twice that they were required to file materials to proceed with their appeal.

[10] The appellants retained a paralegal in the fall of 2016 to assist them in relation to these charges at trial and on the first appeal. In this court, the appellants assert that the paralegal provided ineffective assistance during their appeal to the POAC. They also make submissions attacking the findings of guilt and the sentence imposed on them. Fresh evidence from the appellants and the paralegal was admitted on consent. The paralegal’s evidence is that he advised the appellants that they were required to pay the fines ordered against them as a mandatory condition for proceeding with an appeal to the POAC, but the appellants chose not to pay the fines. Leading up to the appeal, the paralegal encountered medical issues; he accepted full responsibility for ineffective counsel during the POAC appeal as a result from his decline in health. No application was brought to obtain a waiver order to relieve the appellants of their obligation to pay the fine as a condition of bringing an appeal.

C. Analysis

(i) Ineffective Assistance of Counsel

[11] Ineffective assistance has a “performance component” and a “prejudice component”. This ground of appeal will succeed only if the appellant establishes that: (1) counsel’s acts or omissions constituted incompetence (the performance component); and (2) that a miscarriage of justice resulted (the prejudice component): see R. v. White, 2022 SCC 7, 467 D.L.R. (4th) 23, at para. 6, and R. v. D.M.G., 2011 ONCA 343, 105 O.R. (3d) 481, at para. 100.

[12] In the case at bar, Mr. Kentner admitted that he understood that he was obliged to pay the fine as a condition of appealing because he heard Wendl J. say so in open court. Despite that knowledge, he chose not to make any payment until Juriansz J.A. made the payment of the fine a condition for granting leave to appeal. The appellant’s deliberate choice not to pay the fine is wholly unrelated to the services provided by the paralegal. It was the failure to pay that led to the appeal being summarily dismissed.

[13] Further, the appellants suffered no prejudice due to the failure of the paralegal to seek a waiver. We agree with the statement of Juriansz J.A. in his endorsement granting leave to appeal to this court that, “[t]he material filed on the motion does not satisfy me that the moving parties’ application for waiver of compliance with s. 111(1) of the Provincial Offences Act (the “POA”) had any prospect for success had the application been heard.” Consistent with this statement, counsel for the appellants concedes that there was no reasonable prospect of succeeding on the waiver application. His argument is that had the paralegal brought the application and not succeeded, the appellants would have been afforded an opportunity to pay the fine and had their appeal heard. We do not accept this theory.

(ii) Conviction and Sentence Appeal

[14] In our view, the summary dismissal of the appellants’ appeal also did not cause a miscarriage of justice because the appeal is entirely lacking in merit. Regarding the conviction appeal, the appellants assert a single ground of appeal: that the trial judge reversed the onus of proof by relying on the Regulation maps to establish the boundaries of the GRCA regulated area. This is incorrect. The court was entitled to rely on the Regulation maps, which are approved by the Ministry of Natural Resources and incorporated by reference into the Regulation, for the purpose of establishing GRCA jurisdiction.

[15] Further, there is no basis to interfere with the sentence imposed. The total fine of $25,000 is a fraction of the illegal profits earned by the appellants and, in our view, is very low in the circumstances. There can also be no debate that the property remediation order was required.

D. Disposition

[16] The appeal is dismissed.

[17] Regarding costs, s. 129 of the POA entitles this court to make any order with respect to costs that it considers just and reasonable. We invite the parties to make written submissions regarding whether costs should be awarded and if so, in what quantum. The respondent will have seven business days from the release of this decision to serve and file written costs submissions. The appellants will have a further four business days to respond. The respondent will then have three business days to serve and file any reply materials. Costs submissions are confined to two pages, not including bills of costs.

“C.W. Hourigan J.A.”

“Grant Huscroft J.A.”

“S. Coroza J.A.”