COURT OF APPEAL FOR ONTARIO
CITATION: Quinte West (Municipality) v. Balroop, 2016 ONCA 657
DATE: 20160906
DOCKET: C58733
Feldman, Simmons and Lauwers JJ.A.
BETWEEN
Municipality of Quinte West
Respondent
and
Shakeel Balroop
Applicant/Appellant
Counsel:
Shakeel Balroop, acting in person
Jennifer Savini, for the respondent
Heard: August 25, 2016
On appeal from the decision of Justice Stephen J. Hunter of the Ontario Court of Justice, dated December 12, 2013.
ENDORSEMENT
[1] On December 11, 2012, the appellant was convicted and fined $12,000 for a provincial offence – failing to comply with an order to remedy building code deficiencies. He filed a notice of appeal to the Ontario Court of Justice in accordance with the Provincial Offences Act, R.S.O. 1990, c. P 33 (the “Act”). On December 12, 2013, the date of the scheduled appeal, an Ontario Court judge dismissed the appeal.
[2] On a motion to this court, leave to appeal was granted in relation to two issues:
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 s. 116 of the Provincial Offences Act, O. Reg. 723/94 (the “Rules”) passed under the Act; and
Whether an appeal of such a dismissal properly lies to this court, with leave, under s. 131 of the POA.
[3] With respect to the first issue, in our view, the municipality’s approach in bringing a motion to dismiss the appeal for failure to perfect, or for delay added an unnecessary complexity to the appeal proceedings before the appeal judge. In simple terms, the appeal was scheduled to be heard December 12, 2013 by Hunter J. The appellant appeared and asked for an adjournment to allow him time to order, have prepared and file the remaining transcript. The appeal judge refused the adjournment and dismissed the appeal.
[4] Before reaching his decision, the appeal judge demonstrated his conversancy with the decision under appeal and the lengthy process by which the appeal came before him. He discovered that the appellant had filed the notice of appeal with the court, but did not serve the municipality, which only discovered the appeal when it was contacted by the court to schedule the date for argument. He learned there was a lengthy delay in ordering the transcripts, and the appellant had still not ordered and paid for the remaining transcript as of the date of the appeal.
[5] The appellant’s manifest delay was plain to the appeal judge, who noted: “we haven’t received the transcripts, which had they been ordered and paid for properly, would have been here long before today.”
[6] We see no basis to set aside the appeal judge’s refusal to grant an adjournment. It was a discretionary decision. The appeal judge’s decision to deny the adjournment was amply justified on the facts, as was his consequential decision to dismiss the appeal.
[7] To address the first issue directly, the municipality’s notice of motion to dismiss the appeal for failure to perfect or for delay was not necessary and did not add to the appeal judge’s inherent jurisdiction to proceed as he did.
[8] The first issue arises because the appellant failed to file his notice of appeal as required and had not ordered all the transcripts. Thus, specific provisions of the Act and Rules[^1] that authorize dismissal did not apply. However, the appeal had been listed for hearing and the appellant requested an adjournment. Having decided to deny the adjournment, the presiding judge had no option but to dismiss the appeal. Doing so was a matter that fell within the jurisdiction of the court to control its own process.
[9] The second issue is fully answered in R. v. A.E. 2016, ONCA 243 at paras. 23, 33-35. Just as a decision to deny an extension of time to appeal is a “judgment” within the meaning of s. 131 of the Act, so is a decision to refuse to grant an adjournment and dismiss an appeal for delay or failure to perfect. A defendant may appeal a judgment of the Ontario Court of Justice to the Court of Appeal, with leave on special grounds. This is exactly what happened here.
[10] The appeal is dismissed. We award the municipality $1000 of the costs it requested payable by the appellant to the municipality under s. 129 of the Provincial Offences Act, given the lengthy delays and the proceedings involved in this matter. Costs are to be paid within 30 days to the clerk of the trial court, pursuant to s. 129 of the Provincial Offences Act.
“K. Feldman J.A.”
“Janet Simmons J.A.”
“P. Lauwers J.A.”
[^1]: See s. 128 of the Act and s. 17 of the Rules.