Court of Appeal for Ontario

Date: 2018-11-08 Docket: C64802

Judges: Watt, van Rensburg and Brown JJ.A.

In the Matter of an Appeal

Under clause 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between

Municipality of the Northern Bruce Peninsula Appellant

and

Matthew Steven Dolson and Edward Kevin Doyle Respondents

Counsel

For the Appellant: Nicholas Lovell

For the Respondents: Jacob Damstra

Hearing and Release

Heard and released orally: November 5, 2018

On appeal from: The decision of Justice Julia A. Morneau of the Ontario Court of Justice sitting on appeal under the Provincial Offences Act, allowing an appeal from the convictions entered on April 20, 2016 and the sentences imposed on June 20, 2016 by Justice of the Peace Stewart A. Taylor.

Reasons for Decision

[1] With leave of the chambers judge, the Municipality appeals a decision of a judge of the Ontario Court of Justice sitting on appeal from convictions entered in Provincial Offences Court for breaches of a municipal by-law and the Building Code Act, 1992, S.O. 1992, c. 23 ("BCA").

[2] For the purposes of the appeal to this court, we are concerned only with the conviction of the respondents for a breach of the BCA. The convictions based on a breach of the municipal by-law are not under appeal.

[3] On appeal to the Ontario Court of Justice, the now respondents raised a number of grounds of appeal. All but one were rejected by the appeal judge and it is the one that succeeded that is the sole ground of appeal to this court.

[4] To ensure that no miscarriage of justice occurred, the appeal judge considered an argument that had not been advanced at trial. That argument related to the limitation period applicable to proceedings under the BCA. On the basis of this court's decision in R. v. Pickles, [2004] O.J. No. 662, the appeal judge concluded that the one-year limitation period under the BCA ran from the date the construction of the building was finished. The failure of the Municipality to establish that proceedings were instituted not more than one year after completion was fatal to the conviction. It was on this basis that the conviction under the BCA was quashed on appeal.

[5] In reaching her conclusion on the limitation issue, the appeal judge relied on s. 36(8) of the BCA, which at one time required that proceedings for breaches of the Act be commenced no more than "one year after the time when the subject matter of the proceedings arose". It was that provision that this court applied in Pickles to decide that the limitation period ran from the date that construction was completed.

[6] What does not appear to have been drawn to the attention of the appeal judge was that on July 1, 2010, s. 36(8) of the BCA was amended to provide that the one-year limitation period commenced on the date that "the facts on which the proceeding is based first came to the knowledge of an officer or the chief building official".

[7] The first complaint about the offending structure came to the attention of the Municipality on October 15, 2012. After officials had attended at the property and issued compliance orders to no avail, an information was sworn and summons issued on June 12, 2013 – about eight months following the initial complaint.

[8] The appeal judge erred in law by applying the wrong limitation period to the case before her. This prosecution was instituted within one year of the Municipality first gaining knowledge of the structure. There was evidence at trial about this date and it was not open to the appeal judge to interfere with the trial court's finding on this issue. As a result, the decision of the appeal judge cannot be supported. It constitutes an error of law.

[9] The respondent applies for leave to introduce fresh evidence on the hearing of the appeal. In our view, this evidence, which describes in significant detail the disabilities under which the respondent Doyle labours, does not meet the criteria for the admissibility of fresh evidence. We also note that the respondent did not seek the accommodations he now suggests should have been extended to him at trial. There, he was represented by counsel, and by a paralegal. Even if we were to receive the proposed fresh evidence, we are not persuaded that it would affect the reliability of the result reached at trial or the fairness of trial proceedings. In the result, we decline to admit the proposed fresh evidence.

[10] The appeal is allowed, the decision of the appeal judge set aside and the convictions and sentences imposed at trial are reinstated. There shall be no order as to costs.

"David Watt J.A."

"K. van Rensburg J.A."

"David Brown J.A."