Ontario (Attorney General) v. Lee, 2011 ONCA 444

CITATION: Ontario (Attorney General) v. Lee, 2011 ONCA 444

DATE: 20110609

DOCKET: C52494

COURT OF APPEAL FOR ONTARIO

Blair, Watt and Epstein JJ.A.

BETWEEN

Attorney General of Ontario

Applicant (Respondent in appeal)

and

170 Glenville Road, King [PIN: 03407-0007(LT) (IN REM) and Wing Kwong Lee

Respondent (Appellant)

J. Thomas Curry and P.E. Veel, for the appellant Wing Kwong Lee

Robin Basu and Leslie Zamojc, for the applicant (respondent in appeal)

Heard & released orally: June 2, 2011

On appeal from the order of Justice Hugh K. O’Connell of the Superior Court of Justice dated July 2, 2010.

ENDORSEMENT

[1] Mr. Lee seeks to set aside the order of Justice Hugh K. O’Connell dated July 2, 2010 granting the Crown’s application for forfeiture of lands owned by him at 170 Glenville Road in King, Ontario. The property was forfeited pursuant to s. 8(1) of the Civil Remedies Act, 2001 S.O. 2001, ch. 28.

[2] Mr. Lee purchased the property in late November 2005 and testified that he did so for purposes of a residential property for his family and as a future investment for his teenage daughter. It was never used for either purpose.

[3] In April 2006, the police began an investigation of the property and on April 20, executed a search warrant that led to the discovery of a sophisticated marijuana grow operation capable of generating $1 million in revenue each three month grow period.

[4] No criminal charges were ever laid against Mr. Lee, or anyone else, with respect with the grow operation. The Attorney General of Ontario sought and obtained forfeiture of the property pursuant to Ontario’s Civil Remedies Act.

[5] Mr. Lee’s defence to the forfeiture application was essentially that he had leased the property to a man he knew only as “Stephen” and had nothing to do with, or knowledge of, the marijuana grow operation. He said he had met “Stephen” through a friend of a friend at Casino Rama and agreed at that time to lease the property to him. He did not know “Stephen’s” last name or where to contact him. He made no inquiries about the background, business or employment status of the man to whom he was leasing his $457,000 property investment that was made apparently for his daughter’s benefit. Rental payments, he said, were made in cash. While he said there was a lease, none was ever produced. Phone bills, propane bills and hydro bills in his name were delivered to the house, but the “tenant” was to look after them, he said.

[6] Not surprisingly, the application judge rejected the story outright.

[7] In these circumstances, the question whether Mr. Lee was a “responsible owner” as contemplated by s. 8(3) of the Civil Remedies Act does not arise.

[8] Mr. Curry submits that the application judge erred in making his factual findings and drawing inferences by way of application and that he should have directed the trial of an issue. We do not agree. There may well be cases where a trial is called for in proceedings of this nature, but this is not one of them. We observe, first, that no one asked the application judge to direct the trial of an issue. Secondly, this is not a case where there was conflicting testimony that had to be resolved in any significant way. No one was putting forward a different version of the story presented by Mr. Lee. The application judge simply rejected his explanation. Once that rejection occurred, virtually everything in Mr. Lee’s favour from an evidentiary standpoint fell by the wayside.

[9] We would not give effect to this ground of appeal.

[10] Mr. Curry further submits that the application judge erred in law by failing to address his mind to the issue of whether there was “evidence to the contrary” rebutting the presumption established in s. 7(2) of the Act that evidence of past unlawful activity with respect to the property is proof that the property is likely to be used to engage in unlawful activity and therefore is “an instrument of unlawful activity” and subject to forfeiture to the Crown under s. 8(1). Again, we do not agree.

[11] The application judge did not specifically deal with this question at any one point in his reasons. When the reasons are viewed as a whole, however, it is clear that he considered that argument as presented by the appellant and that during the course of his findings on the evidence, he rejected it. He found that the property had been acquired for the express purpose of developing a marijuana grow operation and characterized the police officer’s description of the extensive operation as “apt” (indicating that he inferred it was intended to be a long term enterprise). He rejected “Mr. Lee’s assertions to the contrary [as] merely bold statements, unfounded in either inference that can be drawn from factual underpinnings or as beacons of common sense”.

[12] There was ample basis on the record for the application judge to conclude – as we are satisfied he did – that there was a complete “absence of evidence to the contrary” as contemplated by s. 7(2).

[13] Finally, we see no basis for interfering with the application judge’s discretionary finding against the submission that “it would not be in the interests of justice” to make the forfeiture order, as contemplated in s. 8(1) of the Act. The law with respect to this concept has recently been articulated by this court in AG Ont. V. 8477 Darlington Crescent et al., 2011 ONCA 363. The application judge did not have the benefit of this decision and did not approach his analysis in exactly the same fashion. We are satisfied, however, that in substance, he applied the essential principles underlying Darlington, that he did not fail to take into account any material considerations and that it was open to him on the record to arrive at the conclusion he did.

[14] Accordingly, the appeal is dismissed. The respondent is entitled to its costs fixed in the amount of $4,500 all inclusive.

“R.A. Blair J.A.”

“David Watt J.A.”

“Gloria Epstein J.A.”