Court of Appeal for Ontario

CITATION: R. v. Nichols Gravel Ltd., 2014 ONCA 469

DATE: 20140613

DOCKET: M43380

Pardu (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Nichols Gravel Ltd. and Gary I. Nichols

Applicants

Robert Yanch, for the applicants

Demetrius Kappos, for the respondent

Heard: June 12, 2014

On motion for leave to appeal from the judgment of Justice Dale Parayeski of the Superior Court of Justice, dated November 22, 2013.

Endorsement

[1] Nichols Gravel Ltd. and Gary I. Nichols move for leave to appeal from a decision of Parayeski J., holding that the Superior Court of Justice did not have the jurisdiction to hear the moving parties’ appeal under the Provincial Offences Act, R.S.O. 1990, c. P. 33.

[2] The moving parties were charged under the Aggregate Resources Act, R.S.O. 1990, c. A. 8 with operating a quarry without a licence. The charges were prosecuted under Part III of the Provincial Offences Act.

[3] The moving parties were convicted following trial before a Justice of the Peace.

[4] They appealed to the Ontario Court of Justice where Harris J. upheld the convictions, but reduced the fines.

[5] The moving parties filed a Notice of Appeal to the Superior Court of Justice.

[6] On a motion for directions by the Crown, Parayeski J. decided that the Superior Court of Justice did not have jurisdiction and that the proper route for a further appeal was to the Court of Appeal, with leave.

[7] The moving parties rely on s. 116 (2)(b) of the Provincial Offences Act, which provides that the appeal shall be “where the appeal is from the decision of a provincial judge, to the Superior Court of Justice.” Read literally, they submit that this permits an appeal from the decision of Harris J. to the Superior Court of Justice. This ignores however s. 116 (1) which reads as follows :

Where a proceeding is commenced by information under Part III, the defendant or the prosecutor or the Attorney General by way of intervention may appeal from,

(a) a conviction;

(b) a dismissal;

(c) a finding as to ability, because of mental disorder, to conduct a defence;

(d) a sentence; or

(e) any other order as to costs. 2009, c. 33, Sched. 4, s. 1 (54).

[8] In referring to an appeal from conviction, dismissal, a finding of mental disorder, a sentence or any other order as to costs, s. 116 (1) is intended to refer only to a first appeal, following a decision at first instance. Subsection 116(2) specifies the route for an appeal under subsection (1):

An appeal under subsection (1) shall be,

(a) where the appeal is from the decision of a justice of the peace, to the Ontario Court of Justice presided over by a provincial judge; or

(b) where the appeal is from the decision of a provincial judge, to the Superior Court of Justice. R.S.O. 1990, c. P.33, s. 116 (2); 2000, c. 26, Sched. A, s. 13 (5, 6).

[9] Section 131 provides for a second level of appeal with leave, to the Court of Appeal from the court to which the first appeal was taken, either the provincial judge or the Superior Court of Justice.

[10] The interpretation urged by the moving parties would result in a three separate appellate reviews of a decision of a Justice of the Peace in prosecutions under Part III of the Provincial Offences Act, a result unlikely to have been intended and excluded in any event by the language of s. 116.

[11] Section 131 (2) of the Provincial Offences Act provides:

No leave to appeal shall be granted under subsection (1) unless the judge of the Court of Appeal considers that 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

[12] Leave will not be granted where it is apparent that there is little chance of success. The Superior Court of Justice did not have jurisdiction to hear the appeal from Harris J. I am not persuaded that it is essential in the public interest or for the due administration of justice that leave be granted and the motion for leave is dismissed.

[13] In the event the respondent wishes to pursue costs of the motion, it shall deliver brief written submissions, due by June 30, 2014, with any response by the moving parties due by July 18, 2014.

“G. Pardu J.A.”