Court of Appeal for Ontario

Citation: Ottawa (City) v. Spirak, 2008 ONCA 299

Date: 20080421

Docket: C47569

Before: JURIANSZ, MACFARLAND and WATT JJ.A.

Between:

THE CITY OF OTTAWA Respondent

and

EDWARD SPIRAK and JOSEPH SPIRAK Appellants

Counsel: Steven Greenberg for the appellants Matthieu Charron for the respondent

Heard & released orally: April 16, 2008

On appeal from the convictions imposed by Justice Fournier of the Ontario Court of Justice dated March 22, 2007.

ENDORSEMENT

[1] The appellants were granted leave to appeal on the sole issue of whether they received a fair hearing before the appeal court below. The matter apparently came before the appeal court judge when it was transferred from another court.

[2] The appellants requested an adjournment because of the late service of the respondent’s factum. The respondent opposed the adjournment. The appeal court judge advised the parties that he had not had a chance to read the material and asked counsel to inform him what the case was about with a view to determining whether an adjournment was warranted.

[3] Counsel identified the issues and directed the judge to the passages of the decision and the evidence they considered pertinent. At every juncture, the judge asked questions, then examined and considered the passages to which counsel directed him. He verified he understood what were the issues, what evidence had been introduced and what the justice of the peace had decided on that evidence. The judge then dismissed the appeal.

[4] We do not accept the broad contention of appellants’ counsel that there is a miscarriage of justice in every case where the judge has not read the material prior to the hearing. Certainly, judges should review the material filed before hearing a case. However, in a busy court system it is inevitable that court lists, which often include both trials and appeals, may have to be split and cases transferred from one court to another, as happened here. Even then, a judge should take the necessary time to review the material. Where that is not possible, the question becomes whether the judge, in effect, reviewed the material on the bench with the assistance of counsel. On our reading of the transcript, that is what occurred in this case. The judge ensured he understood the decision below, the salient evidence, the issues and the position of the parties.

[5] What is problematic here, however, is that the appeal court judge never did rule on the adjournment request and did not indicate to counsel that he was embarking on a consideration of the merits of the appeal. Consequently, counsel could not have known they should make submissions on the merits, rather than merely in regard to the adjournment request. After the appeal was dismissed, appellants’ counsel, who seems to have been taken by surprise, was refused the opportunity to speak further.

[6] Justice must not only be done but must manifestly be seen to be done. We are satisfied that the process below did not have the appearance of a fair hearing and so allow the appeal. In holding that the appellants did not receive a fair hearing in the court below, we express no view on the merits of the appellants’ appeal from the decision of the justice of the peace.

[7] The decision of the appeal court judge is set aside, the matter is remitted to the appeal court and a new hearing is directed before a different judge.

[8] Costs in favour of the appellants are fixed in the amount of 10,000 inclusive of disbursements and GST.

“R.G. Juriansz J.A.”

“J. MacFarland J.A.”

“David Watt J.A.”