Court File and Parties
Ontario Court of Justice
Between:
Gilles Renaud
— and —
Ian Blackburn and Hilary Blackburn
Before: Justice of the Peace M. Coopersmith
Heard on: September 20, 2019
Ruling on Application released on: November 6, 2019
Counsel
Michael A. Johnston — counsel for the prosecution
James Moak — agent for the defendants Ian Blackburn and Hilary Blackburn
Decision
Justice of the Peace Coopersmith:
[1] Background and Application
1On December 18, 2018, Patrick Dussault, on behalf of Gilles Renaud, laid an Information for a private prosecution against Ian Blackburn and Hilary Blackburn. The Information alleges six offences against each of the defendants, contrary to section 3.1 (four counts) and section 3.2 (two counts) of The Corporation of the Township of South Stormont By-law 2006-69 ["Fence By-Law"].
2Ian and Hilary Blackburn have brought an Application to dismiss the charges privately laid against them by Gilles Renaud.
3There are five issues upon which the Application is based:
These charges are an abuse of process as the basis for these matters have been adjudicated before and the complainant is trying to circumvent prosecutorial discretion when the prosecution and defendants fully resolved the original charges.
These charges are an abuse of process and statutorily barred as more than six months had expired when the cause of action happened and when the complainant had knowledge of the events which form the basis of these charges.
The Informant did not have first-hand knowledge of the matters being sworn to or had insufficient first-hand knowledge to swear out the Information.
The matters before the court are res judicata and issue estoppel as the fence in question had been approved pursuant to the by law and the plea agreement reached in the initial charges.
The Informant had no standing to provide legal services when he swore to the Information, he selected, drafted and completed the Information and chose how, when and to whom the Information was served and as such this is an illegal act and abuse of process.
4I have carefully reviewed the evidence, submissions and documents of both parties. I am dismissing this Application for the reasons that follow.
I. BACKGROUND
5A very brief overview of what has transpired since September 2017, without getting into the substantive issues of the trial proper, will assist in my analysis.
6On September 5, 2017, Township of South Stormont ["Township"] By-Law Officer Bissonnette measured a recently erected fence on the Blackburn property adjacent to the Renaud/Miller property. He advised the Blackburns that the fence was at least nine feet high and needed to be lowered, as it did not comply with the Fence By-Law.
7This was followed by formal written warning on September 7, 2017. The September 13, 2017 deadline for compliance passed with no changes made to the fence.
8On October 11, 2017, the Blackburns emailed the Township and advised they would like to proceed with the proposed solution to lower the fence to 6.5 feet above grade.
9On November 8, 2017, Hilary Blackburn advised the Township that the fence was almost finished and measured 66 inches from grade. Photographs taken by By-Law Officer Bissonnette in November 2017 illustrate that this was not the case.
10On May 23, 2018, the Township laid five charges against the Blackburns, for offences under sections 3.1, 3.2, 2.14 and 6.2 of the Fence By-Law. These offences are alleged to have occurred between September 5, 2017 and May 1, 2018.
11No further work to the fence was undertaken until the Fall of 2018, at which time the fence was to be lowered by one foot, with a one-foot lattice allowed on the portion of the fence that aligned with the side of the house.
12On November 20, 2018, Ian and Hilary Blackburn pled guilty to one count contrary to section 2.14 of the Fence By-Law ("Good Neighbours Fences" clause). The remainder of the charges were withdrawn.
13A resolution by the Township Council allegedly was passed that allowed the lowered fence to exist as not non-compliant with the Fence By-law, as provided for under section 9.3 of the By-law. Furthermore, the Blackburns allege that their fence replaced a pre-existing hedge and, hence, complies under section 9.2 of the By-law. The Township has taken no position on these matters.
14On December 18, 2018, this private prosecution commenced when Patrick Dussault, on behalf of Gilles Renaud, laid an Information alleging six counts against each of the Blackburns under sections 3.1 and 3.2 of the Fence By-Law, occurring between June 18, 2018 and September 19, 2018.
II. ANALYSIS AND FINDINGS
15I have carefully reviewed the written materials, viva voce evidence and the oral submissions of both parties. My analysis and findings with respect to each of the five issues in this Application are as follows.
1. Abuse of Process and Circumvention of Prosecutorial Discretion
16In his submissions, the Applicant's representative conflated 'abuse of process' and 'the doctrine of cause of action estoppel'. Hence, I will address both concepts.
(a) Abuse of Process
17Recently, the law regarding 'abuse of process' was clarified by the Supreme Court of Canada in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309. There are two types of abuse of process:
Conduct that compromises the fairness of an accused's trial ("main category"), and
Conduct that doesn't threaten trial fairness but risks undermining the integrity of the judicial process ("residual category")
18The test for both types of abuse is the same:
Whether there is prejudice to the accused's right to a fair trial or to the integrity of the justice system that will be manifested, perpetrated or aggravated through the conduct of the trial, or by its outcome;
There must be no alternative remedy capable of redressing the prejudice; and
Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court must balance the interests in favour of granting a stay against the interests that society has in having a final decision on the merits.
19The Applicant submits that having another trial over the same fence would be totally unfair. I do not agree, as there has not been a previous trial over the same fence. The abuse of process doctrine in the case before me is not about the fairness in having a trial, but rather whether the trial would be fair. I have not been provided with any facts or evidence that would lead me to find that a fair trial could not be had. Furthermore, the original fence no longer exists, as a change in its height and other adjustments have morphed it into a different fence.
20A trial in our Provincial Offences Courts may be prosecuted by a municipal or provincial prosecutor or by a private prosecution. The private prosecution is not bound by the prosecutorial discretion exercised by the municipal prosecutor to withdraw charges. Furthermore, on the facts before me, I am not satisfied that it would be unfair or oppressive for this proceeding to be heard in order to resolve, once and for all, on their merits, the fence issues, especially in light of the changes the fence has undergone, the differences between the prior and the current set of charges and the absence of prior adjudication on the charges that do appear to be the same.
21I am not aware of anything that would undermine the integrity of the judicial system by proceeding to trial. A stay is an extreme remedy and it is only in the 'clearest of cases' that the power to stay the proceedings should be exercised. On the materials presented to me, I am not satisfied that these proceedings amount to conduct which is so detrimental to the proper administration of justice that it warrants judicial intervention in the form of a stay. It is not against the public interest and does not shock the conscience of the community to garner a final decision based on adjudication of the merits of the case.
(b) Res Judicata – Cause of Action Estoppel
22The rule of estoppel by res judicata is grounded upon two principles of public policy:
The state has an interest that there should be an end to litigation; and
No individual should be sued or punished for the same cause or offence.
23Cause of action estoppel precludes a person from bringing an action against another when that same cause of action has been determined in earlier proceedings by a court of competent jurisdiction.
24At paragraph 10, in Grant McLeid Contracting Ltd. v. Forestech, 2008 BCSC 756, [2008] B.C.J. No. 1077, the British Columbia Supreme Court quoted case law that referenced Grandview v. Doering, [1976] 2 S.C.R. 621, and identified four criteria that must be present before the doctrine of cause of action estoppel applies:
There must be a final decision of a court of competent jurisdiction in the prior action;
The parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action (mutuality);
The cause of action in the prior action must not be separate and distinct; and
The basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence.
25In the case before me, there was a final decision of a court of competent jurisdiction on only one of the charges previously laid against the defendants regarding their fence. That charge is not a part of this private prosecution. On November 20, 2018, in the Cornwall Provincial Offences Court, Justice of the Peace Brecher found the Blackburns guilty of contravening s.2.14 of the Fence By-Law – the Good Neighbours Fences clause. The other charges were withdrawn by the prosecution. The withdrawn charges were never adjudicated. The defendants were never arraigned on these withdrawn charges and there was no evidence led. The withdrawal of the charges did not amount to a dismissal of the charges. Consequently, given that the prior withdrawn charges were never adjudicated, there can be no final adjudicated decision relating to them. [See e.g. R. v. Karpinski, [1957] S.C.R. 343; R. v. Selhi (1985), 38 Sask. R. 90, affd, [1990] 1 S.C.R. 277.]
26Moreover, I do not find that the parties to this subsequent litigation were the same parties to or in privy with the parties to the prior action. Clearly, it was the Township, not Mr. Renaud who prosecuted the first action. Being provided with the opportunity to give a 'victim impact statement' in the first proceeding did not make Mr. Renaud a party to this prior action. Nor was Mr. Renaud a party to or privy in any agreement that led to a conviction on one count and the other charges withdrawn against the Blackburns. In fact, when Mr. Renaud launched an appeal in the first proceeding, on December 19, 2018, his documentation was returned to him, as it was determined by the court that he was not a party with standing under Section 116(1) of the Provincial Offences Act. Under that provision, only the defendant or the prosecutor or the Attorney General have standing to appeal a decision of a Part III matter – another indicator that Mr. Renaud was not a party to or in privy with the prior prosecution against the Blackburns.
27The cause of action in the prior proceeding varies from the cause of action now before me. A comparison of the charges in the two proceedings reveals different time frames, reflecting the original fence (offence date is between September 5, 2017 and May 1, 2018) and the fence as it was erected at a lower height (offence date is between June 18, 2018 and September 19, 2018). Hence, the current charges relate to a different fence from that which originally existed and which brought the first set of charges against the defendants. Furthermore, not all the charges in the current proceedings are the same as those originally laid in the prior proceeding and a private prosecution may be instituted if the private person wishes to charge a different offence from that charged by the prosecution for the same transaction: see e.g. R. v. Jackson, [2000] O.J. No. 2425 (Ont. S.C.). Hence, I find that the causes of action in the prior action are separate and distinct from those in the current proceedings.
28For all these reasons, I do not find this trial proceeding would be an abuse of process, nor does the doctrine of cause of action estoppel apply. Hence, this ground of the Application is dismissed.
2. Statutory Bar Due to Limitation Period
29Section 76 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended [" POA "] reads:
A proceeding shall not be commenced after the expiration of any limitation period prescribed by or under any Act for the offence or, where no limitation period is prescribed, after six months after the date on which the offence was, or is alleged to have been, committed.
30There is no limitation period outlined in the Fence By-law. Hence, s.76 of the POA applies. I do not accept the Applicant's submissions that more than six months has passed since the fence was erected. Instead, I accept the Respondent's position that the original fence was erected in September 2017. However, in the Fall of 2018, significant work was done and the fence no longer was the same as the original fence. Consequently, the impugned fence that is now the basis of these proceedings is different from that which was erected in September 2017 and it did not come into existence until the Fall of 2018. The current charges were laid on December 18, 2018, well within the six-month limitation period. Consequently, this ground of the Application is dismissed.
3. Insufficient Knowledge of the Informant
31The Applicant submits that Mr. Dussault did not have the reasonable and probable grounds necessary to swear to the Information on December 18, 2018, before Justice of the Peace L. Rozon.
32Subsection 23(1) of the POA provides:
Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence, may lay an information in the prescribed form and under oath before a justice alleging the offence and the justice shall receive the information.
33From the transcript of the December 18, 2018 proceedings, I am satisfied that Mr. Dussault is the person who laid an information in the prescribed form and under oath before Justice of the Peace Rozon, alleging the offences. Subsection 23(1) does not discriminate, and I am satisfied that Mr. Dussault qualifies as "Any person". He had met with Mr. Renaud and measured the impugned fence prior to laying the information. The transcript clearly illustrates his knowledge and the actions he had taken to examine the fence before appearing before Justice of the Peace Rozon. There is no discretion – the justice must receive the information. And I can find no defect on the face of the Information that would lead me to quash it.
34Subsection 24(1) reads:
(1) A justice who receives an information laid under section 23 shall consider the information and, where he or she considers it desirable to do so, hear and consider in the absence of the defendant the allegations of the informant and the evidence of witnesses and,
(a) where he or she considers that a case for so doing is made out,
(i) confirm the summons served under section 22, if any,
(ii) issue a summons in the prescribed form, or
(iii) where the arrest is authorized by statute and where the allegations of the informant or the evidence satisfy the justice on reasonable and probable grounds that it is necessary in the public interest to do so, issue a warrant for the arrest of the defendant; or
(b) where he or she considers that a case for issuing process is not made out,
(i) so endorse the information, and
(ii) where a summons was served under section 22, cancel it and cause the defendant to be so notified.
35I will not get into the sufficiency of the knowledge Mr. Dussault had or did not have, as I have no jurisdiction to sit as a court of appeal to the decision to issue process made by Her Worship Rozon based on the information provided to her by Mr. Dussault. Instead, it is a matter for judicial review.
36R. v. Maitland Capital, 2008 ONCJ 519 guides me in coming to this conclusion. In that case, Justice Sparrow was hearing an Ontario Security Commission prosecution as a trial judge and was faced with what was framed as a motion to quash the information and summons based on what were held out to be problems with the issuing of process in intake. She then helpfully reviewed some prior Superior Court of Justice authorities and concluded that unless the objection goes to something to do with facial validity, then the remedy must be sought in the Superior Court of Justice.
37I appreciate that the Applicant in the matter before me is asking for a stay rather than an order to quash the information, but I do not find that to be of much consequence when the main crux of the argument boils down to objections with what occurred in the intake process. The following passages taken from Maitland Capital, supra, are particularly helpful:
9 I agree with the prosecutor that the information can only be quashed by this Court for a defect apparent on its face. This issue was addressed squarely by Ewaschuk J. in R. v. Whitmore (1987), 41 C.C.C. (3d) 555 (Ont. H.C.), who states: "It is undoubted that a provincial court judge conducting a preliminary inquiry or a trial on an information has jurisdiction to do so provided the information is valid on its face."
10 "The only way an information laid before a justice may be later attacked for a defect not apparent on the face of the information is by motion to the issuing justice or by extraordinary remedy."
13 In my view, given the decisions in Whitmore, 152207 Canada Inc. and the plain wording of s.36, this Court would only have jurisdiction to quash the information if there was a defect apparent on its face. No such defect has been demonstrated. The information clearly enumerates offenses under the Ontario Securities Act. It is properly before this Court and therefore provides, rather than deprives, the Court of jurisdiction.
14 With respect to the summons, I agree with the prosecutor that any attack on the process because of the alleged errors of the Justice of the Peace must be brought by way of prerogative remedy in Superior Court. S.90 of the Provincial Offences Act addresses certain defects as follows: "The validity of any proceeding is not affected by, a) any irregularity or defect in the substance or form of the summons, warrant, parking infraction notice, offence notice, undertaking to appear or recognizance or, b) any variance between the charge set out in the summons, warrant, offense notice or parking infraction notice, undertaking to appear or recognizance, and the charge set out in the information or certificate."
21 In my view, these cases make it clear that a review of alleged errors in the procedure followed by a Justice of the Peace in issuing process are matters to be dealt with by an application for a prerogative remedy in which the applicant must argue that the error deprived the Justice of the Peace of jurisdiction. It should be noted that the remedy is discretionary and is to be sought within 30 days of the impugned activity: see s.141 of the Provincial Offences Act.
38There is no error apparent on the face of the Information and, hence, it will not be quashed. The above passages make it clear that alleged errors in conducting a pre-inquiry before issuing process are alleged jurisdictional errors for review within the purview of the Superior Court of Justice. Consequently, I have no choice but to dismiss this ground of the Application as outside the scope of my jurisdiction.
4. Res Judicata and Issue Estoppel
39To satisfy the doctrine of issue estoppel, four criteria must be met:
Has the same question been decided in a prior proceeding?
Was the decision which is said to create the estoppel a final decision?
Were the parties to the previous decision or their privies the same persons as the parties or their privies to the proceedings in which the estoppel is raised?
If the first three criteria are met, should the court exercise its discretion not to apply issue estoppel?
[See e.g. Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460.]
40The issues relating to the height and type of construction of the fence were not decided in the plea proceedings before Justice of the Peace P. Brecher on November 20, 2018. Furthermore, as I indicated above, the fence that attracted the first set of charges against the Blackburns was transformed and, hence, is no longer the fence at issue in these subsequent proceedings. Therefore, the first two criteria have not been met. And, as stated above, Mr. Renaud was not a party or privy to the previous proceedings.
41Since none of the first three criteria have been met, there is no need for me to exercise discretion with respect to whether the matters are res judicata, as the doctrine of issue estoppel does not apply. The Applicant has not satisfied this ground of the Application based on issue estoppel and, therefore, this ground is dismissed.
5. Unauthorized Practice of Law by the Informant
42The Applicant submits that subsections 1(6)2.(i), (vi) and (vii) and subsection 1(6)3. of the Law Society Act, R.S.O. 1990, c. L.8, as amended [" LSA "] describe activities undertaken by Mr. Dussault and, hence, he was providing legal services.
43Mr. Moak provided the Ontario Superior Court of Justice decision, Tunney v. 51 Division Toronto Police, 2015 ONSC 6761, in which an unlicensed person contravened sections of the LSA and, as a result, that proceeding was found to be an abuse of process. Mr. Tunney, acting on another person's behalf, issued a claim in his name. He had no authority to issue and proceed with the claim on this other person's behalf. Tunney, supra, is easily distinguished from the matter before me. Mr. Dussault did not commence proceedings with any intention of prosecuting the matters himself, nor is he acting as a plaintiff in these proceedings, as was the case with Mr. Tunney. Consequently, Tunney, supra, provides no guidance in the matters before me.
44In applying a straightforward statutory interpretation of the wording of subsection 23(1) of the POA"any person", such as Mr. Dussault, may lay an information before this Court. I know of no caselaw that raises his conduct to the level of an abuse of process.
45Subsections 26.1(1) and 26.1(5) of the LSA state:
Non-licensee practising law or providing legal services
26.1 (1) Subject to subsection (5), no person, other than a licensee whose licence is not suspended, shall practise law in Ontario or provide legal services in Ontario
…
Exception, non-licensee practicing law or providing legal services
(5) A person who is not a licensee may practise law or provide legal services in Ontario if and to the extent permitted by the by-laws.
46Section 62(0.1).25 of the LSA provides:
Convocation may make by-laws,
prescribing, for the purposes of section 26.1, persons or classes of persons who are permitted to practise law in Ontario without being licensed to do so and persons or classes of persons who are permitted to provide legal services in Ontario without being licensed to do so, prescribing the circumstances in which persons who are not licensees are permitted to practise law or to provide legal services in Ontario, and prescribing the extent to which persons who are not licensees are permitted to practise law or to provide legal services in Ontario, including specifying the areas of law that such persons may practise or in which such persons may provide legal services and the legal services that such persons may provide;
47The Law Society of Ontario By-law 4, Section 30, Item 4 deals with providing Class P1 (paralegal) services without a licence. It reads:
The following may, without a licence, provide legal services in Ontario that a licensee who holds a Class P1 licence is authorized to provide:
An individual,
i. whose profession or occupation is not and does not include the provision of legal services or the practice of law,
ii. who provides the legal services only for and on behalf of a friend or a neighbour,
iii. who provides the legal services in respect of not more than three matters per year, and
iv. who does not expect and does not receive any compensation, including a fee, gain or reward, direct or indirect, for the provision of the legal services.
48Mr. Dussault is a retired OPP Officer who is not holding himself out to be licensed by the Law Society of Ontario. In these circumstances, he may be considered a friend of Mr. Renaud, providing services on his behalf. No evidence was provided that would lead me to believe that Mr. Dussault provided legal services more than three times last year. He was not paid for the services he provided on Mr. Renaud's behalf. I am satisfied that any perceived legal services Mr. Dussault provided are allowed under the Law Society By-laws.
49Moreover, if Mr. Moak believes Mr. Dussault provided legal services not provided for by the LSA, then a charge under s.26.2 of the Act, which creates the offence of providing legal services outside the confines of that Act, can be brought against him. Whether a person is or is not providing legal services can then be investigated and subsequently, a decision can be made by a court as to whether any offence has been committed under that Act. I have not been provided with evidence that such a charge has been laid or is pending against Mr. Dussault or, further, that a determination of any charge has been made. Mr. Dussault has not been provided with notice of the case against him, a fair opportunity to answer that case and the opportunity to present his own case – all of which are fundamental to the right to a fair hearing as afforded by the principle of natural justice. This principle provides a safeguard for an individual interacting with the state. Consequently, the Applicant has not satisfied me that any illegal act has been committed from which an abuse of process would emanate.
50Therefore, the Applicant has not satisfied this final ground of the Application and this issue is dismissed.
III. CONCLUSION
51For all the reasons I have provided, I am dismissing the Application of Ian Blackburn and Hilary Blackburn. The charges outlined in the private prosecution brought by Gilles Renaud on December 18, 2018 against Mr. and Mrs. Blackburn will proceed to trial for determination on their merits.
Released: November 6, 2019
Signed: Justice of the Peace M. Coopersmith