CITATION: Wang v. Justice of the Peace, Costa 2019 ONSC 7038
DIVISIONAL COURT FILE NO.: 254/19
DATE: 20191206
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: ting Wang, Applicant; Respondent in the Motion
AND:
Justice of the peace, costa, Respondent; Moving Party in the Motion
BEFORE: Kiteley J.
COUNSEL: Ting Wang, Self-represented
Andi Jin, for the Respondent; Moving Party
HEARD at Toronto: November 26, 2019
ENDORSEMENT
PARAGRAPHS 1 TO 15 WERE IN THE ENDORSEMENT DATED OCTOBER 23, 2019
[1] Mr. Wang issued a Notice of Application to Divisional Court for Judicial Review. He seeks to review the decision of a Justice of the Peace in connection with his form 105 that he presented to the Justice of the Peace pursuant to s. 23 of the Provincial Offences Act.
[2] Counsel for the Respondent Justice of the Peace has brought this motion to quash the Notice of Application. Mr. Wang takes the position that the moving party did not serve him in accordance with the Rules and that the court should adjourn the hearing of the Motion to Quash.
[3] The affidavit of service indicates that on Monday October 14, 2019, Mr. Jin sent by email a copy of the Motion Record, Factum and Book of Authorities. In that email, Mr. Jin also asked Mr. Wang to provide an address other than a post office box to which he could courier the materials. In the absence of a response, on Tuesday October 15, 2019, Mr. Jin sent the same material by registered mail.
[4] Mr. Wang retrieved the material from his post office box on Saturday October 19. Pursuant to Rule 1.03 “Holiday” is defined to include Saturday and Sunday. Pursuant to rule 3.01, holidays are not counted if the period for service is less than 7 days. For purposes of this ruling, I will not include Saturday October 19 or Sunday October 20. Mr. Wang effectively received the material on Monday October 21 and the hearing was scheduled for Wednesday October 23. Mr. Wang has asked to adjourn the motion to quash.
[5] I will adjourn it to allow him to respond to the factum and book of authorities. Importantly, in the factum and the book of authorities, counsel for the moving party relies on subsections 140(1) and 142(4) of the Provincial Offences Act and Mr. Wang needs time to understand the importance of those sections.
[6] In the affidavit of service referred to above, there is an email from Mr. Jin to Mr. Wang dated September 27, 2019 in which he enclosed the Notice of Motion to Quash. On October 11, 2019 Mr. Wang filed a “Notice of Motion (Motion for to Quash Respondent’s Motion for to Quash)”. In other words, Mr. Wang had brought his own motion to quash the motion brought by Mr. Jin.
[7] At the outset of the day, I indicated to Mr. Wang that it was not appropriate for him to have served a motion to quash a motion to quash. I indicated that there were two outcomes to the motion brought by Mr. Jin. The first outcome was that the court dismissed the motion in which case, Mr. Wang’s Notice of Application would proceed. The second outcome was that the court granted the motion in which case, Mr. Wang’s Notice of Application would not proceed. Mr. Wang would then have to decide whether to launch proceedings in the Superior Court. I explained that under either outcome, his motion to quash was not appropriate.
[8] After hearing Mr. Wang’s preliminary comments about late service, I took a lengthy recess over the lunch to allow Mr. Wang to print and copy what is his “amended Notice of Motion (Motion for to Quash Respondent’s Motion for to Quash)”. Mr. Wang renewed his request to adjourn the motion to quash for no less than 7 days and hopefully for 30 days.
[9] I indicated that I would adjourn but that I would impose conditions as to what could be served and when. In order for him to respond to the factum and book of authorities, Mr. Wang intended to serve another “amended Notice of Motion (Motion for to Quash Respondent’s Motion for to Quash).” I indicated to him that, just as counsel had to comply with the Rules as to service, he had to comply with the Rules and serve and file a responding factum and book of authorities.
[10] Mr. Wang has filed the documents necessary to perfect his Notice of Application including a factum. He pointed out that the time for filing responding material had elapsed. I advised him that I would suspend the time for filing responding material to the Notice of Application until after the motion to quash was decided.
OCTOBER 23, 2019 ORDER TO GO AS FOLLOWS:
[11] The motion by the Respondent Justice of the Peace to quash the Notice of Application is adjourned to November 26, 2019 for 60 minutes: 15 minutes to counsel for the moving party and 45 minutes to Mr. Wang.
[12] By November 19, 2019, Mr. Wang shall serve and file a factum and book of authorities.
[13] Mr. Wang shall not serve or file any other material in connection with the hearing of the motion to quash.
[14] Counsel for the Respondent Justice of the Peace shall not serve and file reply factum.
[15] The time for the Respondent to serve and file responding material to the Notice of Application is suspended until the outcome of the motion to quash. If the judge hearing the motion to quash dismisses that motion, that judge will establish a time within which the Respondent files such responding material.
ENDORSEMENT AS A RESULT OF HEARING NOVEMBER 26, 2019
[16] On November 18, 2019 Mr. Wang served a factum by registered mail addressed to Mr. Jin. It appears that he filed it in the Divisional Court on that date.
[17] As indicated in paragraph 5 above, the purpose of the adjournment for over 30 days was to give Mr. Wang an opportunity to respond to the factum and book of authorities that had been filed by the moving party in support of the motion to quash. At paragraph 5 of the October 23rd endorsement, I referred to the importance of subsections 140(1) and 142(4) of the Provincial Offences Act.
[18] In his 37 page factum served and filed November 18, 2019, Mr. Wang has included about 10 pages of statutes and rules. In the remaining 27 pages, he has repeated much of the contents of the factum he had filed in August when he had perfected his Application.
[19] In paragraph 6 (on page 7), he asks that the court strike the book of the authorities of the moving party. He also stated “despite of the respondent’s counsel’s exhaustive reference to authorities, the applicant must leave it to the respondent’s counsel to explain the merit of each in the applicant’s application and/or in factum of the respondent”.[^1] He insists that the respondent’s counsel has ignored the Judicial Review Procedure Act.
[20] In paragraph 9 (on page 8), he repeats his position that the Divisional Court has jurisdiction to hear the application for judicial review. In paragraph 12 (on page 9), he asks that the motion to quash be adjourned to a panel of the Divisional Court pursuant to s. 21(4) of the Courts of Justice Act.
[21] In paragraph 15 (on page 17) he asserts the following:
- The Respondent advances three arguments:
(a) A motion to quash is available in the circumstances;
(b) The Applicant seeks relief in the nature of mandamus;
(c) The POA provides that relief by way of mandamus is exclusively available before the Superior Court of Justice and is not available on an application for judicial review.
[22] He then deals with those issues including one of the authorities relied on by the moving party and other authorities.
[23] On pages 11, 13, 15 and 25, Mr. Wang quotes s. 15 of the Charter of Rights and Freedoms.
[24] At the bottom of page 18, Mr. Wang referred to s. 140 and s. 142(4) of the Provincial Offences Act and at the top of page 19 he corrects the grammar in the moving party’s factum.
[25] In paragraph 17 (on page 24) he asserts that if the judge grants the motion to quash it will mean “ignoring the Judicial Review Procedure Act” and will be the “first time in a century”. In paragraph 20 (on page 25), he asserts that that “would be bizarre”. In paragraph 18(c) (on page 24) he asserts that if the motion to quash is granted, it will mean that Divisional Court clerks are directed to ignore the Judicial Review Procedure Act.
[26] In paragraph 21 (on page 25), he indicates that he is opposed to the motion to quash.
[27] In paragraph 22 (on page 26), he asks that if the motion to quash is dismissed, then he wants three hours to make his submissions on his Application and in paragraph 23, he asks that the court set the hearing of the Application for April 3, 2020.
[28] On November 26, 2019 Mr. Wang spent most of the allocated 45 minutes[^2] reading his factum to reiterate what he believes to be the justice of his case.
ANALYSIS
[29] Mr. Wang brought this Notice of Application in the Divisional Court as contemplated by s. 6(1) of the Judicial Review Procedure Act. While he did not describe it this way, he seeks to compel the Justice of the Peace to exercise a statutory power of decision, namely to lay an information against a Municipal Prosecutor who he believed violated s. 86 of the Provincial Offences Act (making false statements) in a court hearing. As contemplated by s. 7 of the Judicial Review Procedure Act, that is an order in the nature of mandamus.
[30] An application for mandamus is usually made to the Divisional Court pursuant to s. 2 of the Judicial Review Procedure Act. However, s. 142(4) of the Provincial Offences Act creates an exception and, where the matter is, as here, pursuant to the POA, the Judicial Review Procedure Act does not apply and, as a result, the Divisional Court does not have jurisdiction. For that reason, I must grant the motion to quash and dismiss the Notice of Application. Section 140(1) of the Provincial Offences Act provides that it is the Superior Court that “may” grant the relief.
[31] Mr. Wang is committed to pursuing this application in his attempt to correct what he believes was a wrongful refusal by the named Justice of the Peace to issue a summons pursuant to s. 24(1)(ii). I make no comments on the strength or weakness of his claim. As indicated in paragraph 7 above, I have explained to Mr. Wang that this motion is a procedural matter. He may start a case in the Superior Court asking for the same order.
[32] In the Notice of Motion to quash, the moving party asked for costs of the motion and of the Application. After hearing submissions on November 26, I did not ask Mr. Jin for his submissions on costs. The Respondent has not responded to the Application so there are no costs “of the Application.” The Respondent brought the motion returnable October 23 that was adjourned because service of the factum was late and as a result, the Respondent is not entitled to costs of the adjourned hearing on October 23, 2019. The Respondent has been successful in the motion and is, in theory, entitled to costs. It was reasonable for a self-represented person to start under the Judicial Review Procedure Act. On this procedural motion, I do not consider it to be just to require Mr. Wang to pay even modest costs.
ORDER TO GO AS FOLLOWS:
[33] The Notice of Application in DC19-254-JR is quashed.
[34] The Registrar of the Divisional Court shall not set a hearing date for this Notice of Application.
[35] The Respondent is not required to respond to the Notice of Application.
Kiteley J.
Date: December 06, 2019
[^1]: He has repeated this on pages 18, 22 and 23.
[^2]: Extended to 60 minutes.