COURT OF APPEAL FOR ONTARIO

CITATION: Antorisa Investments Ltd. v. Vaughan (City), 2013 ONCA 287

DATE: 20130501

DOCKET: C55998

Rosenberg, Watt and Pepall JJ.A.

BETWEEN

Antorisa Investments Ltd. and 1785037 Ontario Ltd.

Appellants

and

The Corporation of the City of Vaughan

Respondent

David Outerbridge, Orlando M. Rosa and James Gotowiec, for the appellants

Andrew J. Heal, for the respondent

Heard and released orally: April 26, 2013

On appeal from the judgment of Justice Ronald A. Minard of the Ontario Court of Justice, dated March 26, 2012, allowing the appeal by the respondent from the judgment of Justice of the Peace Adele Romagnoli, dated June 6, 2011.

ENDORSEMENT

[1] We agree with the appeal judge that there was no basis for granting a stay of proceedings in this case. We largely adopt the reasons of the appeal judge but would add this. There were elements in the conduct by Officer Booth that might well have justified a finding of abuse of process. The issue, however, was whether a stay of proceedings was the only remedy to address that abuse in accordance with the test set out by the Supreme Court of Canada most recently in R. v. Nixon, 2011 SCC 34, 2011 S.C.C. 34 at para. 42. As has repeatedly been said by the Supreme Court of Canada, a stay of proceedings is a prospective remedy; it is to protect against the abuse continuing to be manifest, perpetuated or aggravated through the conduct of the trial or by its outcome and when no other remedy is reasonably capable of removing the prejudice. That test simply was not made out. The alleged lack of disclosure could be remedied by any number of lesser remedies. The alleged misconduct by Officer Booth did not require a stay. It could be taken into account in considering her credibility, and might well have led to wholly disregarding her testimony. But, to stop the prosecution because of that misconduct was not required to remedy the prejudice.

[2] In her reasons, especially at p. 10, the trial judge never explained why only a stay of proceedings was required. In our view, she fundamentally misapprehended the test for granting a stay of proceedings. Accordingly, the appeal is dismissed.

[3] We also agree that the costs order was properly set aside. Any question of a lesser remedy for abuse of process such as costs is best left to be considered

at the new trial after proper notice to the respondent and in accordance with

s. 109 of the Courts of Justice Act.

"M. Rosenberg J.A."

"David Watt J.A."

"S.E. Pepall J.A."