COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tenny, 2015 ONCA 841

DATE: 2015-12-02

DOCKET: C60327

Hoy A.C.J.O., MacFarland and Lauwers JJ.A.

BETWEEN

Alfred M. Tenny

Applicant (Appellant)

and

Her Majesty the Queen in Right of Ontario

Respondent (Respondent in appeal)

Gatlin Smeijers and Glen Jennings, for the appellant

Sylvia Davis, for the respondent

Heard: November 6, 2015

On appeal from the Order of Justice M. Gregory Ellies, of the Superior Court of Justice, dated March 26, 2015, with reasons reported at 2015 ONSC 1471.

ENDORSEMENT

[1] Does s. 26(3) of the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”) authorize service of a summons by registered mail on an individual who resides in the United States of America? For the reasons set out below, we hold that it does, and dismiss the appeal.

FACTUAL BACKGROUND

[2] The appellant, Alfred M. Tenny, is the sole officer and president of 1449817 Ontario Inc. The company owns property in Timiskaming, upon which Mr. Tenny’s related companies carried out waste processing and ran a waste generator business until operations ceased in 2007. The property has suffered serious environmental issues that have been of great concern to municipal and environmental authorities since at least 2004.

[3] In September 2012, Mr. Tenny and the company pleaded guilty to charges and were convicted of failing to comply with a provincial officer’s order to remove and dispose of chemical waste materials remaining on the property. As part of the sentence, the court issued a consent remediation order requiring Mr. Tenny and the company to remove and dispose of all waste materials by June 2013. They failed to do so.

[4] In April 2014, both Mr. Tenny and the company were charged under s. 186(2) of the Environmental Protection Act, R.S.O. 1990. C. E.19 (“EPA”) for failure to comply with the 2012 remediation order.

[5] To compel Mr. Tenny’s attendance before the court, a summons was issued under s. 24 of the POA and delivered by registered mail to his last known address in the United States, under s.26(3). Section 26 provides:

(1) A summons issued under section 22 or 24 shall,

(a) be directed to the defendant;

(b) set out briefly the offence in respect of which the defendant is charged; and

(c) require the defendant to attend court at a time and place stated therein and to attend thereafter as required by the court in order to be dealt with according to law.

Service

(2) A summons shall be served by a provincial offences officer by delivering it personally to the person…

Service outside Ontario

(3) Despite subsection (2), where the person to whom a summons is directed does not reside in Ontario, the summons shall be deemed to have been duly served seven days after it has been sent by registered mail to the person’s last known or usual place of abode. [Emphasis added.]

Service on corporation

(4) Service of a summons on a corporation may be effected,…

(b) in the case of any corporation, other than a municipal corporation, incorporated or continued by or under an Act by,

(i) delivering the summons personally to the manager, secretary or other executive officer of the corporation or person apparently in charge of a branch office of the corporation, or

(ii) mailing the summons by registered mail to the corporation at an address held out by it to be its address;

(c) in the case of corporation not incorporated or continued by or under an Act by,

(i) a method provided under clause (b),

(ii) delivering the summons personally to the corporation’s resident agent or agent for service or to any other representative of the corporation in Ontario, or

(iii) mailing the summons by registered mail to a person referred to in subclause (ii) or to an address outside Ontario, including outside Canada, held out by the corporation to be its address.

Date of mailed service

(4.1) A summons served by registered mail under subsection (4) is deemed to have been duly served seven days after the day of mailing.

[6] Mr. Tenny, who now resides in Lahaina, Hawaii, applied under s. 140 of the POA for an order of prohibition quashing the summons and prohibiting the proceedings against him, on the ground that the POA does not provide the necessary statutory authority for service of a summons on an individual who resides outside of Canada.

ANALYSIS

[7] The parties agree that these are penal proceedings and service of a summons outside Canada must be authorized by statute: R. v. Shulman (1975), 1975 CanLII 1397 (BC CA), 23 C.C.C. (2d) 242 (B.C.C.A.), [1975] B.C.J. No. 1055. In Shulman, the British Columbia Court of Appeal held, at para. 15,

[I]n penal proceedings such as those here a summons cannot properly be served on a person outside Canada without such service being authorized by a statute, and that in the absence of proper service the court has no jurisdiction over the person, even though it may have jurisdiction over the subject matter of the complaint.”

[8] This court considered whether summonses in relation to charges for fraud and conspiracy to commit fraud on a corporation were permitted to be served in the United States, in R. v. R.J. Reynolds Tobacco Co. (Delaware), 2007 ONCA 749, 230 C.C.C. (3d) 72. The application judge had quashed an order validating such service. This court found, at para. 6, that Shulman was still good law, and went on:

[T]he remaining issue is whether s. 701.1 of the Criminal Code, when read together with s. 26 of the POA, creates the necessary express statutory authorization for service outside of Canada. In our opinion, it does not. In our view, on a proper reading of ss. 701.1 and 703.1 of the Criminal Code it is clear that the only authority provided in the Criminal Code for service of a summons is authority to serve the summons within Canada. Section 26(4) of the POA provides an additional means of service but it does not in any way expand on the express provisions of the Criminal Code relating to where a summons may be served. (Emphasis added.)

[9] Mr. Tenny argues that, s. 26(3) of the POA does not create “the necessary express statutory authorization for service outside of Canada”, as required by R.J. Reynolds Tobacco. He asserts that language such as that now found in s. 26(4)(c)(iii) of the POA would suffice; it permits service on a corporation of a summons by registered mail “to an address outside Ontario, including outside Canada, held out by the corporation to be its address.”

[10] We disagree, for two reasons. First, the plain language of s. 26(3), in the phrase, “where the person to whom a summons is directed does not reside in Ontario”, expressly refers to service on an individual who, like Mr. Tenny, resides outside of Ontario. On any reasonable interpretation, this expression would include persons living in the United States, which is outside Ontario. Mr. Tenny has not identified any authority that contradicts this interpretation.

[11] Second, the legislative history of the POA contradicts Mr. Tenny’s interpretation. In its 2007 decision in R.J. Reynolds Tobacco, this court considered the language in s. 26(4) of the POA, which then provided:

(4) Service of a summons on a corporation may be effected by delivering the summons personally … or by mailing the summons by registered mail to the corporation at an address held out by the corporation to be its address, in which case the summons shall be deemed to have been duly served seven days after the day of mailing.

[12] In R.J. Reynolds Tobacco, this language was found to be insufficient to authorize service outside Canada, since it was entirely silent on the issue. Nor did ss. 701.1 and 703.4 of the Criminal Code, R.S.C. 1985, c. C-46 assist the Crown in that case, because they referenced only service of a summons within Canada.

[13] In response to the R.J. Reynolds Tobacco decision, s. 26(4) of the POA was amended to include s. 26(4)(c)(iii), and the words “outside Ontario, including outside Canada”. We infer that the legislature did not amend s. 26(3) because it already provided for service on an individual resident outside Ontario. We do not see the minor differences in wording between the older s. 26(3) and newer s. 26(4) as material to the interpretation of s 26(3).

[14] We see no merit to Mr. Tenny’s argument that s. 26(3) of the POA is merely a deeming provision as to when service is effective. Section 26(3) speaks both to the place of service (i.e. not in Ontario), and to the time service is deemed effective (i.e. seven days after sending by registered mail). We observe that for corporations the place of service is addressed by s 26(4), and the time service is effective is addressed by s. 26(4.1). The differences in expression appear to be no more than changes in legislative drafting style between 1979 when s. 26(3) of the POA was enacted (then as s. 27(3)), and 2009 when s. 26(4) was amended, not changes in legislative intention.

[15] We note that giving effect to Mr. Tenny’s interpretation would create the absurd result that corporations could be served outside Canada but individuals could not. This would be inconsistent with the purpose of s. 26 of the POA which, as the application judge described it, at para. 53, “is intended to provide for service of a summons on individuals and corporations charged with a provincial offence in Ontario in the most efficient, inexpensive manner that will, at the same time, ensure as much as possible that the summons comes to the attention of the accused.”

[16] We agree with the application judge’s observation, at para. 17, that this court used the word “expressly” in R.J. Reynolds Tobacco to mean clearly and unambiguously.

[17] Our interpretation is supported by the nature of the POA as a remedial statute, the purpose and objective of which is to provide a summary process for regulatory offences to which it applies. Such regulatory offences have long been viewed as public welfare offences, meant to protect society as a whole: R. v. Sault Ste. Marie, [1978] 2 S.C.R. No. 1299. A liberal interpretation that facilitates the attainment of those objects is called for: Ontario (Ministry of Labour) v. Hamilton (City) (2002), 2002 CanLII 16893 (ON CA), 58 O.R. (3d) 37, at para. 16; Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, s. 64(1). The legislative intention reflected in the POA is to “ensure that technical objections do not impede the arrival of a verdict on the merits”: Ontario (Ministry of Labour) v. Hamilton (City), at para. 21 citing Ontario (Ministry of Labour) v. Discovery Place Ltd., [1996] O.J. No. 690 (Gen. Div.) at para. 18.

[18] In our view, s. 26(3) clearly and unambiguously authorizes service of a summons on an individual outside Ontario, and outside Canada. The summons was properly served on Mr. Tenny. The appeal is dismissed.

“Alexandra Hoy A.C.J.O.”

“J. MacFarland J.A. ”

“P. Lauwers J.A. ”