COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Goebel, 2015 ONCA 411

DATE: 20150609

DOCKET: C55495

Weiler, Watt and Epstein JJ.A.

BETWEEN

Richard Goebel

Appellant

and

Her Majesty the Queen, Attorney General of Ontario and City of Toronto

Respondents

Ken J. Berger, for the appellant

Daniel Guttman, for the respondent Attorney General of Ontario

Amanda Ross, for the respondent City of Toronto

Heard: January 22, 2015

On appeal from the order of Justice Eugene G. Ewaschuk of the Superior Court of Justice, dated April 23, 2012.

Epstein J.A.:

OVERVIEW

[1] This appeal involves the appellant’s entitlement to advanced funding to finance his proposed challenge to the constitutional validity of the Building Code Act, 1992, S.O. 1992, c. 23 (“BCA”) on the basis that it violates ss. 7, 15 and 2(b) of the Canadian Charter of Rights and Freedoms.

[2] The appellant is a man with a disability. He suffers from a serious mental illness. He owns and occupies a house on property in the City of Toronto. As a result of complaints relating to the maintenance of the appellant’s property, the City performed a number of inspections and made various compliance orders under the BCA. The appellant failed to comply. He did not appeal the orders.

[3] Faced with continued non­compliance, the City issued an information under s. 23 of the Provincial Offences Act, R.S.O. 1990, c. P.33, in the Ontario Court of Justice, charging the appellant with failing to comply with an order contrary to s. 36(1)(b) of the BCA.

[4] By way of defence, the appellant challenged the constitutional validity of the BCA.[^1] He essentially argues that the BCA violates his security of the person under s. 7 of the Charter as, according to the appellant, enforcement of the BCA allows the City to seize his home. He also argues that the BCA discriminates against him, contrary to s. 15 of the Charter, and curtails his freedom of expression, contrary to s. 2(b) of the Charter. However, the crux of his argument seems to rest with s. 7 of the Charter. Finally, while the record is not clear, he appears to seek prerogative relief in the light of what he characterizes as the City’s manifestly unfair and oppressive prosecution of him.

[5] On December 21, 2009, the appellant applied to the Superior Court for an order requiring the Attorney General of Ontario or the City to provide him with advanced funding to assist him in pursuing his constitutional challenge. The resolution of this application has delayed the proceedings under the Provincial Offences Act.

[6] By order dated April 23, 2012, Ewaschuk J. dismissed the application, without prejudice to the appellant’s right to renew it before the trial judge of the Ontario Court of Justice.[^2]

[7] In his appeal of that order to this court, the appellant submits that, without government funding, he does not have the financial wherewithal to defend the charge against him, that his constitutional challenge has merit, and that the issues his case raises are of public importance. He therefore argues that the criteria for advanced funding are met and the application judge erred in concluding otherwise.

[8] In my view, the appellant’s constitutional challenge is without merit. On this basis, I would dismiss the appeal.

BACKGROUND

[9] In June 2007, the City started to receive complaints about the appellant’s property. As a result, the City dispatched a property standards officer to investigate. The first inspection, which took place on June 14, 2007, led the City to issue a property standards order on June 14, 2007, listing seven defects with a compliance date of August 25, 2007. The City received a second complaint. Again, it dispatched a property standards officer. Based on an inspection on July 11, 2008, the City issued a second order on July 15, 2008, adding four more defects. The compliance date was August 3, 2008.

[10] Neither order was appealed.

[11] The property was again inspected on September 10, 2008, following a third complaint. The inspection disclosed that only two (and part of a third) of the eleven previously-identified items had been brought into compliance.

[12] The continuing unaddressed defects include such matters as rotting exterior wood cladding, the presence of ungraded mounds of earth in the front yard, a roof not in good repair, and insufficiently protected yard excavation.

[13] The unchallenged evidence demonstrates that the City went to considerable lengths to assist the appellant to resolve his maintenance and non-compliance issues. City officials worked with a representative of the Salvation Army who is helping the appellant. The City agreed to extend the time for compliance. And the City reversed the property inspection fees.

[14] Ultimately, the City proceeded against the appellant under the Provincial Offences Act on a charge of failure to comply with the July 15, 2008, compliance order.

ISSUE ON APPEAL

[15] In oral argument, the court posed the question of whether the order under appeal is interlocutory, in which case this court would not have jurisdiction over this appeal. At the request of the panel, counsel provided written submissions on the issue. Having considered the submissions, the panel has decided that, given the state of this record, it is preferable to leave the issue of jurisdiction to another day.

[16] Therefore, assuming but not deciding that this court has jurisdiction, we will deal with the only substantive issue raised by this appeal; namely, whether the appellant meets the criteria for advanced funding.

[17] Since his application was dismissed without reasons, this court is entitled to consider the matter de novo.

ANALYSIS

The Applicable Legal Principles

[18] The parties agree that the Superior Court has jurisdiction to award advanced funding based on the criteria set out by the Supreme Court of Canada in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at para. 40:

1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial. In short, the litigation would be unable to proceed if the order were not made;

2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means; and

3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.

[19] “These are necessary conditions that must be met for an award of interim costs to be available”: Okanagan, at para. 41. Even in circumstances in which the three Okanagan criteria are met, the appellant still has no right to advanced funding: Okanagan, at para. 41.

[20] In R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 5, the Court made it clear that advanced funding orders issued by Superior Courts for a Provincial Court matter "must be highly exceptional and made only where the absence of public funding would work a serious injustice to the public interest”.

The Principles Applied to this Case

[21] The appellant’s challenge to the constitutional validity of the BCA appears to be primarily premised on the argument that the BCA gives the City the right to take his shelter, thereby infringing his security of the person, protected under s. 7 of the Charter.

[22] This argument is doomed to fail for several reasons.

[23] First, s. 7 of the Charter has not been interpreted to protect a right to property: see Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R 40, at para. 9; Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1991), 1991 CanLII 7068 (ON CA), 2 O.R. (3d) 65 (C.A.), at para. 195; and Peter Hogg, Constitutional Law of Canada, looseleaf (Toronto: Carswell, 2007), at p. 47-17.

[24] Second, the appellant’s assertion that the operation of the BCA puts his interest in his property in jeopardy is factually incorrect. The prosecution is proceeding under the Provincial Offences Act, not the BCA. In any event, there is no provision in either statute that would allow the City to deprive the appellant of his shelter.

[25] The procedure available to the City for enforcement of property standards is as follows.

[26] The City establishes standards designed to ensure that property is appropriately maintained. If a property standards violation comes to the City’s attention, the BCA sets out a procedure for inspection, notice, and time for compliance.

[27] Specifically, s. 15.2(1) of the BCA empowers property standards officers to inspect properties to ensure standards prescribed in by-laws are met. Pursuant to s. 15.2(2), an officer who finds that a property does not conform to these standards may make an order indicating the time for compliance with the terms and conditions of the order.

[28] Section 36(1) of the BCA makes it an offence for failing to comply with an order made pursuant to s. 15.2(2). Under s. 36(3) of the BCA, a person who is convicted of an offence is liable to a fine of not more than $50,000 for a first offence. The only other relevant sanction prescribed by the BCA is a prohibition order under s. 36(7).

[29] There is no provision in the BCA for enforcement of an order requiring a fine to be paid. Rather, in the event a fine is not paid, the City must turn to the Provincial Offences Act for assistance.

[30] The Provincial Offences Act defines “offence” as “an offence under an Act of the Legislature or under a regulation or by-law made under the authority of an Act of the Legislature”. Pursuant to s. 23(1), “Any person who, on reasonable or probable grounds, believes that one or more persons have committed an offence, may lay an information… before a justice”. Upon conviction, the Actallows for a variety of sanctions including a fine, a probation order, and a term of imprisonment.

[31] Significantly, as I previously indicated, neither the relevant provisions of the BCA nor the Provincial Offences Act interfere with the appellant’s entitlement to his home.

[32] If a fine is imposed as a result of a conviction under the Provincial Offences Act for non-compliance with an order under the BCA, the City may, in turn, look to the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A. Under s. 3(5) of that Act, the amount of the fine may be added to the property taxes charged against the property in question. Under Part XIV of the City of Toronto Act, failure to pay property taxes may ultimately give the City the right to sell the property. I note that the process leading up to the sale of a home under Part XIV of the City of Toronto Act is a long one. For example, s. 344(1) provides for the registration of a tax arrears certificate on a property, but only in the third year following the year in which the taxes become owing. Further, under s. 350(1), notice of a public sale cannot occur until at least 280 days after the day the tax arrears certificate is registered.

[33] In the light of the statutory framework designed to further the City’s objectives to keep property maintained to certain minimum standards, I am of the view that the appellant’s constitutional challenge to the BCA cannot succeed. Specifically, the impugned legislation, the BCA, does not operate so as to deprive the appellant of any Charter-protected interests.

[34] Returning to the Okanagan criteria, the appellant’s constitutional challenge certainly does not have sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the challenge to be forfeited because of impecuniosity.

[35] This conclusion is sufficient to dispose of the matter.

[36] To the extent the appellant is still seeking prerogative relief, I am of the opinion that this request is also devoid of merit. As discussed above, the City has, within the context of the avenues available to it, dealt with the appellant fairly and reasonably by attempting to assist him, where possible.

DISPOSITION

[37] For these reasons, I would dismiss the appeal. In the circumstances, I would make no order as to costs.

Released: June 9, 2015 (KMW)

“Gloria Epstein J.A.”

“I agree K.M. Weiler J.A.”

“I agree David Watt J.A.”

[^1]: The appellant seems to challenge the constitutional validity of the BCA as a whole, rather than a particular provision.

[^2]: Whether the Ontario Court of Justice has jurisdiction to order advanced funding was not a live issue in this appeal.