ONTARIO COURT OF JUSTICE
BETWEEN:
Peter Dimakos
Appellant
— AND —
Toronto (City)
Respondent
Judgment on Appeal
Counsel for the Appellant: S. M. Habib
Counsel for the Respondent: L. Barker-Maclean; C. Bendick
I. Endorsement
1On April 7th, 2018, the appellant was served with a summons concerning two Part III Informations under the Provincial Offences Act alleging that he failed to comply with the Building Code Act of Ontario. These simple allegations spawned years of litigation and a multitude of appearances.
2The appellant appeals the dismissal of a s.11(b) Charter application. The appellant’s position is that the learned Justice of the Peace erred by finding that the motion was not properly before the Court.
3The trial justice provided a lengthy detailed fifty-five page judgment at trial. The judgment set out the chronology in significant detail. In so doing, the Court set out the history of the proceeding including the numerous opportunities and accommodations provided by the Court for the purpose of allowing the defendant to perfect his s.11(b) Charter application. In so doing the Court documented how the appellant attempted to present Charter, constitutional, and non-constitutional motions to no avail.
4The record demonstrates that the trial justice alerted the appellant and his legal representatives numerous times as it concerned perfection of the s.11(b) Charter application. The trial justice permitted cross-examination on the appellant’s affidavit and submissions as it concerned the application. While acknowledging that the appellant delivered volumes of materials to the court, and that the prosecutor was prepared to address the application, ultimately the trial justice held that the appellant never properly served the Attorney General. In arriving at that finding the trial justice provided clear detailed reasons explaining that finding. The trial justice also explained why there was no merit to the application.
5Notwithstanding the extensive preparation, and the highly persuasive materials provided by counsel for the appellant, I find that the trial justice did not commit "palpable and overriding error": Housen v. Nikolaisen, 2002 SCC 33. It was within the jurisdiction of the trial justice to rule that the application was not properly before the court. Proper service was mandatory: R. v. Vellone, 2011 ONCA 785, paras. 17 to 27. The Court was entitled to follow direct guidance on point from the Ontario Court of Appeal. The decision to dismiss the application on procedural grounds was within the jurisdiction of the trial justice.
6I acknowledge that the approach of the trial justice was perhaps not the most efficient way to address the application. I acknowledge that there were alternative ways to address the service issue: (See for example, York (Regional Municipality) v. Tomovski, 2017 ONCJ 785, at paras. 49-55).
7It is also true that the trial justice could have simply dismissed the application with clear reasons thereby putting the appellant on notice as to the deficiencies and the fact that a perfected application was required.
8But on the other hand, the appellant had received advice and representation from a slew of legal professionals. The trial justice was entitled to assume that the appellant was receiving legal advice from the legal professionals. Where the appellant was self-represented, the Court had to balance the duty to assist a self-represented individual against the requirement that the Court refrain from providing legal advice.
9Further, an appeal court should not substitute a “preferred approach” to the process (preferred in the eyes of the appeal court) unless a miscarriage of justice has occurred. The approach of the trial justice allowed for an exploration and evaluation of the merits of the delay argument.
10These were lengthy and protracted proceedings with a difficult self-represented individual. The appellant serially hired and fired numerous representatives. The Court discerned an intention to obstruct the proceedings. The record supports this perception held by the trial justice.
11Upon review of the entire proceeding, the trial court addressed these protracted proceedings with tremendous patience and indulgence. The trial court is owed deference in these circumstances.
12Even if I have erred in deferring to the trial justice, I would not engage s.120(1) of the Provincial Offences Act and order a new trial on the grounds that the ruling was unreasonable, wrong in law, or a miscarriage of justice.
Released: February 10th, 2025
Signed: “Justice M.S.V. Felix”