COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Georgalis, 2015 ONCA 70

DATE: 20150202

DOCKET: C56820

Strathy C.J.O., Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Theofilos Georgalis

Appellant

Theofilos Georgalis, acting in person

Jamie Spotswood, appearing as amicus curiae

Amanda Ross, for the respondent

Heard: December 4, 2014

On appeal from the judgment dated November 20, 2012 of Justice Marvin A. Zuker of the Ontario Court of Justice, dismissing an appeal from the conviction entered and sentence imposed by Justice of the Peace B. Fatsis on January 6, 2011.

ENDORSEMENT

[1] The appellant appeals, with leave, from the judgment of the Ontario Court of Justice dismissing his appeal from his conviction by a justice of the peace on a charge under the City of Toronto, Municipal Code, C. 545 Licensing, (20 June 2002), s. 545-39D(2) (repealed), for “stopping for the sale of refreshments within 30 metres of any entrance to school grounds”. He was fined $2,000. Leave was granted on the issue of whether the provisions of the Municipal Code constituting the offence apply on private property.

[2] The appellant was licensed by the City of Toronto as a motorized ice cream vendor. One condition of his licence prohibited the sale of ice cream within 30 metres of the entrance of a school.

[3] On the date in question, the appellant was selling ice cream from his truck, which he had parked in the parking lot of Weston Junior Public School. The charging officer observed several small children purchase ice cream. He testified the truck was on school property, approximately 10-15 metres from the entrance to the school grounds. The appellant admitted he was on school property, but testified he was more than 30 metres inside the entrance. The justice of the peace accepted the officer’s evidence and convicted the appellant. His appeal to the Ontario Court of Justice was dismissed.

[4] The appellant, through amicus, advances two submissions. First, he submits that the words in the Code, prohibiting an ice cream truck from stopping “within 30 metres of any entrance to school grounds” (emphasis added), describe a prohibited zone extending 30 metres outside the entrance. He submits the appellant should not have been convicted because his truck was located inside the entrance. He says the use of the word “entrance”, as opposed to “entrance or exit”, used in other parts of the by-law, orients the prohibited zone in a direction outside the entrance.[^1]

[5] He submits the contrary interpretation would lead to an absurdity because someone could sell ice cream lawfully on the school steps provided they were more than 30 metres inside the entrance. He says that on the correct interpretation of the by-law, the appellant was entitled to sell ice cream as long as he stopped his truck inside the entrance to the school.

[6] The appellant’s second submission is that the by-law is inapplicable to private property.

[7] We agree with counsel for the respondent that this appeal can be resolved on the basis of statutory interpretation and does not turn on either the meaning of the word “entrance” or on whether the by-law applies to private property.

[8] The modern approach to statutory interpretation requires the words to be read in their entire context and according to their grammatical and ordinary sense, harmoniously with the scheme and object of the legislation and the intention of the legislature: John Doe v. Ontario (Finance), 2014 SCC 36, 373 D.L.R. (4th) 601, at para. 18.

[9] On the plain meaning of the by-law, the appellant’s submission fails. The word “within” is defined as “inside (something); inside the range of; inside the bounds set by”: Angus Stevenson & Maurice Waite, eds., Concise Oxford English Dictionary, 12th ed. (New York: Oxford University Press, 2011), at p. 1658. The term “within”, in the context in which it is used in the Code, sets a boundary around schools, inside which ice cream trucks are prohibited.

[10] It would be absurd to interpret the by-law to mean that the appellant could not sell ice cream on the street within 30 metres of the entrance to the school but that he could stop anywhere inside the entrance to do so. It would also be absurd to say that he could sell anywhere on the school grounds, provided he was more than 30 metres inside the entrance. The court should avoid an interpretation that leads to absurd or illogical consequences or would defeat the purpose of the legislation: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 27.

[11] The by-law is directed both to the protection of school children and setting fair limits on where ice cream vendors can ply their trade. It should be interpreted to promote these objects. Permitting the sale of ice cream in school driveways or parking lots promotes neither objective.

[12] The by-law does not regulate or apply to private property. It requires motorized ice cream vendors to be licensed and regulates the conditions of their operation, including where they may operate. By entering into the school yard and stopping to sell ice cream, the appellant violated the terms of his licence and also breached the by-law.

[13] For these reasons, the appeal is dismissed.

“G.R. Strathy C.J.O.”

“M. Tulloch J.A.”

“W. Hourigan J.A.”

[^1]: Amicus acknowledges there is no evidence that there was a separate exit from the school and concedes that the entrance to the school also served as the exit.