COURT OF APPEAL FOR ONTARIO
CITATION: Balroop v. Quinte West (City), 2014 ONCA 319
DATE: 20140424
DOCKET: M43423
Hoy A.C.J.O. (In Chambers)
BETWEEN
Shakeel Balroop
Appellant
and
The Corporation of the City of Quinte West
Respondent
Shakeel Balroop, in person
Stephen Morrison, amicus curiae
Jennifer Savini, for the respondent
Heard: March 26, 2014
On appeal from the decision of Justice S. Hunter of the Ontario Court of Justice, dated December 12, 2013.
ENDORSEMENT
[1] The appellant, Shakeel Balroop, seeks leave to appeal from the December 12, 2013 decision of Justice Hunter of the Ontario Court of Justice (the “appeal judge”). The appeal judge dismissed the appellant’s appeal from the December 11, 2012 judgment of Justice of the Peace Chapelle, convicting the appellant of a provincial offence – the failure to comply with an order to remedy building code deficiencies – and fining him $12,000, because he failed to perfect his appeal.
[2] The threshold for granting leave to appeal to this court from a decision of a Superior Court Judge dismissing an appeal of a conviction of a provincial offence is high. The appellant must establish special grounds, on a question of law alone. In determining whether special grounds exist, the judge must ask whether, in the particular circumstances of the case, it is essential in the public interest or for the due administration of justice that leave be granted: Provincial Offences Act, R.S.O. 1990, c. P. 33 (the “Act”), ss. 131(2) and 139(2); Ontario (Labour) v. Enbridge Gas Distribution, 2011 ONCA 13, at para. 33; Antorisa Investments Ltd. v. Vaughan (City), 2012 ONCA 586.
[3] This appeal raises both questions of fact, and questions of law. However, the questions of law can be resolved without consideration of the questions of fact.
[4] The questions of law were not argued by the appellant, an in-person litigant, or amicus – amicus, in this instance, had little opportunity to consider any legal issues. The issues became apparent as I reviewed the matter in greater detail after hearing the motion. Because of this, I have not had the benefit of submissions from the respondent’s counsel or amicus on these questions. Given that the appellant is an in-person litigant, the record on the motion, and the nature of the issues, it is in my view preferable that the questions of law be considered by a panel, rather than providing the parties the opportunity to provide further written submissions to me.
[5] The questions of law are: (1) whether an appeal under s. 116 of the Act may be dismissed for failure to perfect, or for delay, in circumstances not authorized by the Act or the Rules of the Ontario Court (General Division) and the Ontario Court (Provincial Division) in Appeals under Section 116 of the Provincial Offences Act, O. Reg. 723/94 (the “Rules”), passed under the Act; and (2) whether an appeal of such a dismissal properly lies to this court, with leave, under s. 131 of the Act.
[6] I conclude that it is both in the public interest and essential for the due administration of justice that leave to appeal be granted to resolve these questions of law, which are of broad interest to persons whose appeals under s. 116 of the POA are dismissed for failure to perfect, or delay. I accordingly grant leave to appeal those questions of law. I do not grant leave to appeal on the grounds argued by the appellant, discussed below, which in my view arise out of factual determinations made by the appeal judge.
The Background
[7] The trial before the Justice of the Peace occurred over three days: April 4, 2012, September 24, 2012 and December 11, 2012.
[8] The appeal was scheduled to be heard on December 12, 2013. On the morning of the scheduled appeal, the transcript of September 24, 2012, which was required for the appeal, was not available.
[9] The Rules contain provisions regarding the ordering and delivery of transcripts. Subsection 8(1) requires that an appellant file with his notice of appeal a certificate of the clerk of the Ontario Court (Provincial Division) indicating that the transcript of evidence has been ordered. Subsection 8(2) requires the appellant to deliver a copy of the transcript to the respondent; it is silent as to when the transcript must be delivered. Subsection 13(1) provides that the clerk shall place the appeal on the appeal list after the appellant has filed a copy of the transcript of evidence, and any other step required by the Act or the Rules has been completed. In this case, the appellant managed to secure an appeal date from the clerk without these steps having been taken.
[10] Anticipating a request by the appellant for an adjournment, the respondent, the Corporation of the City of Quinte West, brought a motion to dismiss the appeal on the basis of the appellant’s failure to perfect the appeal. The respondent provided sworn evidence that it had not been served with the notice of appeal. (Subsection 5(2) of the Rules requires a defendant to serve the notice of appeal within 30 days after the date of the decision appealed from.) While the appellant asserted that he had served the respondent with the notice of appeal, he did not provide an affidavit of service. Nor, the appeal judge noted, did the appellant have evidence that he had paid for the transcripts. The appeal judge commented that had the appellant ordered and paid for the transcripts, they would have been available.
[11] The appellant submitted that he had not received the respondent’s motion materials and therefore had not prepared any responding materials; the respondent’s evidence was that it had served the materials by mail, at the appellant’s address on the written notice of appeal field with the Court, as required.
[12] The appeal judge granted the respondent’s motion to dismiss the appeal for failure to perfect the appeal in accordance with the Rules, lifted the stay of the payment of the fine and dismissed the appeal. He wrote:
As far as I’m concerned, you’ve had more than enough time to perfect the appeal. You have failed to perfect the Appeal. There is no proof that you served the Notice of Appeal in accordance with the Rules. The Motion is properly before the Court. There is no Affidavit or material to contradict what the City of Quinte West has indicated and in my view, this simply is on the face of the material and the Judgment that I’ve read and the transcript which is available, is simply a matter that is being delayed improperly in my view and the Appeal is not properly perfected, has never been properly perfected and is dismissed.
Analysis
[13] I will first explain the two questions of law that I believe that this appeal raises: (1) whether an appeal judge can dismiss an appeal for failure to perfect, or for delay, when not specifically authorized by the Act or the Rules; and (2) whether an appeal from such a dismissal is to this court, with leave, under s. 131 of the Act. Then I will briefly turn to the factual issues that the appellant argues.
1. Dismissal of an appeal for failure to perfect, or for delay, when not specifically authorized by the Act or the Rules
[14] The appeal judge did not indicate on what Rule or legislative provision he relied in dismissing the appeal for failure to perfect, and I have been unable to identify any provision that specifically authorized the appeal judge to dismiss the appeal for failure to perfect.
[15] While s. 128(b) of the Act provides discretion to dismiss an appeal that has not been proceeded with, the appeal judge could not have relied on that section. It provides as follows:
128(1) The court may, upon proof that notice of an appeal has been given and that,
(b) the appeal has not been proceeded with or has been abandoned,
order that the appeal be dismissed. [Emphasis added.]
[16] Section 128 applies only where it has been proven that notice of an appeal has been given. In dismissing for failure to perfect, the appeal judge rejected the appellant’s position that he had given the notice of appeal.
[17] Section 17 of the Rules sets out further instances when the court may dismiss an appeal before a determination on the merits:
- The court may dismiss an appeal where the appellant,
(a) does not attend in person or by counsel and,
(i) has not indicated in the notice of appeal the appellant’s intention not to be present in person or by counsel at the hearing of the appeal,
(ii) has not filed notice in writing of the intention not to be present in person or by counsel at the hearing of the appeal, and
(iii) has not filed a statement in writing of the issues and the appellant’s arguments on the appeal;
(b) has filed a notice of abandonment;
(c) has not filed a transcript of evidence at trial, including reasons for judgment or sentence, if any, within 30 days after receiving notice of completion of the transcript from the clerk of the Ontario Court (Provincial Division);
(d) after obtaining an order under subclause 117(1)(b)(ii) of the Act for the examination of a witness, has not filed a transcript of the examination within 30 days after receiving notice of completion of the transcription from the other person before whom the witness was examined; or
(e) has failed to comply with an order of the court in respect of the appeal. [Emphasis added.]
[18] In the circumstances, s. 17 of the Rules did not permit the appeal judge to dismiss the appeal. The appellant had not received notification of completion of the transcripts from the clerk of the Ontario Court: s. 17(c) accordingly did not apply. Moreover, no order had been made requiring the appellant to order and pay for the transcripts within a stipulated time period: s. 17(e) accordingly did not provide a basis for the appeal judge to dismiss the appeal. Similarly, the other subsections did not apply. The appellant was present, he had not filed a notice of abandonment, and there was no indication that he had obtained an order under subclause 117(1)(b)(ii) of the Act.
[19] The respondent refers me to a decision of the Ontario Court of Justice dismissing an appeal for failure to perfect and for delay: see Ontario (Ministry of the Environment) v. Algoma Disposal, Excavations & Demolition Services (2000) Inc., 2007 ONCJ 270. In that case, charges were stayed under s. 11(b) of the Canadian Charter of Rights and Freedoms. The Crown appealed. Two years and nine months elapsed between the date of the stay and date the Crown served all relevant documents. The court found that the delay was “grossly excessive”, and not justified by the appellant Crown. While the court did not refer to s. 128 of the Act, it did find that notice of appeal had been given. Therefore, unlike in this case, the dismissal in Algoma Disposal may have been under s. 128 of the Act.
[20] This appeal in my view raises an issue of law not argued by the parties at the motion for leave to appeal, namely, whether an appeal under s. 116 of the Act may be dismissed for failure to perfect, or for delay, in circumstances not specifically authorized by the Act or the Rules. As indicated above, in my view it is both in the public interest and essential for the due administration of justice that leave be granted.
2. Whether an appeal from a dismissal for failure to perfect or for delay is to this court, with leave, under s. 131 of the Act
[21] While both the appellant and the respondent take the position that the appellant’s recourse is to this court, with leave, under s. 131 of the Act, this appeal in my view also raises an important jurisdictional question.
[22] Section 131 permits an appeal of the “judgment of the court” to this court, with leave.
[23] In R. v. Belanger, [2006] O.J. No. 3453, Gillese J.A. (In Chambers) held that this court has jurisdiction under s. 131 of the Act to grant leave to appeal from a decision denying an extension of time to an appellant under s. 85 of the Act. She concluded that the word “judgment” should not be construed narrowly, as to exclude certain decisions.
[24] However, in R. v. Borges, 2011 ONCA 621, Juriansz J.A. (In Chambers), citing the decision of Epstein J.A. (also In Chambers) in R. v. Melaku(2011), 2011 CanLII 99905 (ON CA), 106 O.R. (3d) 481, more recently came to the opposite conclusion. He held that a decision to deny an extension of time to an appellant under s. 85 of the Act cannot be appealed to this court, with leave, under s. 131 of the Act.[^1] Juriansz J.A. concluded that the words “judgment of the court” mean the judgment of the court to which the initial appeal is taken under s. 116. Where, as in this case, a proceeding is commenced by way of information under Part II of the Act, s. 116 allows for an appeal from a: conviction; dismissal; finding as to ability, because of mental disorder, to conduct a defence; sentence; or any other order as to costs. He reasoned that a decision to deny an extension of time is a decision of first instance under s. 85 of the Act, and not a “judgment of the court”. Accordingly, he held, the appellant’s redress is pursuant to s. 140 of the Act. That section permits the Superior Court of Justice to, on application, “grant any relief in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari.”
[25] Arguably, a decision to dismiss for failure to perfect or for delay is also a decision of first instance. Even if it is a decision at first instance, however, there is conflicting jurisprudence as to whether this court has jurisdiction over such a decision. These jurisdictional issues would benefit from clarification from a panel of this court.
3. Grounds of appeal arising out of factual findings by the appeal judge
[26] In seeking leave to appeal to this court, the appellant relies on two grounds. First, the appellant says that he advised the appeal judge that transcripts had been ordered but not yet received, and the appeal judge failed to take this into account in dismissing the appeal. Second, the appellant renews his argument that the respondent had not served him with its motion to dismiss.
[27] The grounds which the appellant advances arise out findings of fact by the appeal judge – as to what transcripts had been ordered and paid for, and whether the appellant had been served with the motion record. They are not “special grounds” on a question of law. I would accordingly not grant the appellant leave to appeal on these grounds.
[28] Moreover, the supplemental evidence that van Rensburg J.A. permitted the parties to file on this motion supports the appeal judge’s findings of fact in relation to the transcripts.
[29] In his affidavit sworn February 14, 2014, the appellant deposes that he undertook extraordinary efforts to obtain the transcripts in question, but the Court Reporter did not respond or provide him with transcripts. It is unclear from the affidavit when he originally ordered the transcripts, but he deposes that he wrote a letter to find out when his transcripts would be ready on May 23, 2013, and eventually received the first transcript – that of December 11, 2012 – on June 24, 2013. Upon receiving it he provided it to the court and an appeal date was booked. He later received the transcript from April 4, 2012, which he provided to the court, and he wrote to the Court Reporter on August 28, 2013 to find out the status of the September 24, 2012 transcript – the only transcript that was still missing on the date of the appeal. He attaches an e-mail dated November 4, 2013 from the Court Reporter, who indicated that the appellant’s request for an update on the status of the transcript had been forwarded to the Court Reporter. He then provides his response to that email, dated November 15, 2013, stating that he had not heard from the Court Reporter and required his transcript immediately. He includes a copy of a letter to the Ontario Court of Justice, dated December 2, 2013, advising that he would seek an adjournment of the scheduled December 12, 2013 appeal date on the basis that the transcript of September 24, 2012 was not yet ready, and attaching copies of correspondence requesting the September 24, 2012 transcript.
[30] The affidavit filed by the respondent includes an e-mail dated November 19, 2013 from the Court Reporter indicating that she had only received the order for the September 24, 2012 transcript the day before, and would require payment before she typed the transcript. The respondent also includes a later email, dated December 1, 2013 from the Court Reporter to the appellant again advising that she would not prepare the transcript for the September 24, 2012 trial date until she was paid a deposit. She recounted that it took her seven months to obtain payment for the transcript of the April 4, 2012 trial date ordered by the appellant’s former counsel. The appellant did not include a copy of this e-mail in the attachments to his letter to the court requesting an adjournment of the December 12, 2013 appeal date. Nor did he seem to recall it when he advised the appeal judge that, “I have sent numerous response to the – to the Court Reporter in order to get the transcript. I haven’t heard back from them, even as my latest email – advising them that I still have not received correspondence. They said that they have only received the Request for Transcript on November 17th.”
[31] The respondent’s affidavit also includes a copy of a further request for a transcript of the September 24, 2012 trial date, dated and signed by the appellant on March 5, 2014, and an email from the Court Reporter to the appellant indicating that, as of March 12, 2014, the appellant still had not paid the deposit required before the Court Reporter would commence work on the transcript. She indicates that the transcript could have been ready for the December 12, 2013 appeal date, had the appellant paid the requisite deposit.
[32] The supplemental affidavit of the respondent supports the appeal judge’s finding that the appellant had not ordered and paid for the necessary transcripts.
[33] As to the appellant’s argument that he was not served with the respondent’s motion record, the sworn evidence before the appeal judge was that respondent had served the appellant, as required. Moreover, the appellant was seeking an adjournment of the appeal. Even if he had not received the motion record, one would have expected that he would have attended at the scheduled commencement of the appeal, armed with evidence that he had ordered all required transcripts in a timely fashion, and made the payments necessary to ensure that they would be produced, to support his request for an adjournment – the same evidence relevant to a response to a motion to dismiss for failure to perfect. The appellant did not do so.
Costs
[34] I did not receive cost submissions from the parties. The issue of entitlement to costs of this motion is reserved to the panel hearing the appeal.
“Alexandra Hoy A.C.J.O.”
[^1]: Section 85 gives the court the power to extend time limits, on application of a party.