Court of Appeal for Ontario

Date: 2017-11-24 Docket: C63515

Judges: Sharpe, Epstein and van Rensburg JJ.A.

Between

The Regional Municipality of York Applicant (Respondent)

and

Robert Irwin Respondent (Appellant)

Counsel

Gerard C. Borean, for the appellant

Chris G. Bendick, for the respondent

Heard: November 22, 2017

On appeal from the order of Justice M.L. Edwards of the Superior Court of Justice, dated February 23, 2017.

Reasons for Decision

[1] The appellant Robert Irwin is charged with various offences under Part III of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the "POA"). He is alleged to have violated the Building Code Act, 1992, S.O. 1992, c. 23, by not complying with six orders to comply the respondent issued in 2013 under that Act. The trial is proceeding before a justice of the peace.

[2] The respondent, The Regional Municipality of York ("York") asserts that various additions and alterations to Irwin's property were constructed without a building permit. At trial Irwin testified that the 2013 orders were identical to orders to comply that had been issued against him in 1995 and 1996 (the "Earlier Orders"), that led to charges that were withdrawn. Irwin sought an order requiring York to provide disclosure of prior charges and prosecutions against him. The justice of the peace issued the disclosure order after hearing argument.

[3] The respondent applied to the Superior Court for an order for certiorari under s. 140 of the POA. The application judge granted an order quashing the disclosure order and requiring the justice of the peace to continue with the trial of the charges. The application judge concluded that, although the Earlier Orders may well have applied to the same buildings on the property and required the same actions, they had different compliance deadlines and therefore constituted distinct offences. York was entitled to issue more than one order to comply and each failure to comply would be a distinct offence. The application judge also accepted that, while the appellant might have relied on the withdrawal of the 1996 charges had he appealed the six orders, he could not now attack the validity of the order having failed to avail himself of the appeal mechanisms under the Building Code Act.

[4] The appellant appeals to this court by right, under s. 140(3) of the POA. He says that the application judge ought not to have granted certiorari during the trial and that any issue as to the relevance of the Earlier Orders ought to have awaited an appeal post-trial. He argues that the application judge ought not to have granted the order he did without finding that a substantial wrong or miscarriage of justice had occurred, as required by s. 141(4) of the POA, and that the test is not met in this case.

[5] The respondent accepts that the 2013 orders to comply replaced the Earlier Orders in respect of the same buildings and structures, but argues that the material difference between the orders is their compliance deadlines, and that therefore the application judge did not err in considering the disclosure request to pertain to irrelevant matters.

[6] The respondent also contends that, even if the application judge did not expressly apply the s. 141(4) test for a substantial wrong or miscarriage of justice, that test is met on this record. Unless certiorari is granted the prosecution has no alternative but to disclose the records sought. The respondent says that it would be a substantial wrong to require the prosecution to produce documents that are patently irrelevant. The respondent argues that the disclosure order would have taken the trial down the wrong path and significantly complicated and prolonged the trial.

[7] A justice of the peace who is hearing a trial of charges under Part III of the POA is entitled to determine questions of the relevance of evidence and to make disclosure orders, without such decisions being challenged mid-trial. Applications for certiorari should be granted only rarely. Most erroneous rulings made during a trial are appealable only at the end of the trial as part of an appeal against conviction, dismissal or sentence: R. v. 1353837 Ontario Inc., [2005] O.J. No. 656 (C.A.), at para. 18. The test for intervention mid-trial by certiorari under s. 140 of the POA is whether the erroneous ruling makes the proceeding "so unfair that the interests of justice require the court to intervene and grant prerogative relief": 1353837, at para. 24.

[8] In our view the application judge erred by failing to consider the substantial wrong or miscarriage of justice test in s. 141(4) of the POA, and in determining on the merits and mid-trial the issue of whether the Earlier Orders were relevant to the appellant's defence. Even if the disclosure order were wrong, complying with it does not amount to a substantial wrong or miscarriage of justice. The disclosure order will not preclude the respondent from arguing that the materials disclosed are not in fact relevant and that what is disclosed does not afford a defence. By contrast, the effect of the application judge's order is that any defence based on earlier compliance is effectively taken "off the table". Whether or not the appellant's argument amounts to a collateral attack on the order to comply, that issue should have been resolved at trial on a proper record, and it was premature for the respondent to bring the issue forward before the trial was concluded.

[9] The appeal therefore is allowed and the order of certiorari is set aside.

[10] Costs to the appellant fixed at $2,500, inclusive of applicable taxes and disbursements.

"Robert J. Sharpe J.A."

"Gloria Epstein J.A."

"K. van Rensburg J.A."