Court of Appeal for Ontario

Date: 2019-02-26 Docket: C64632

Judges: Feldman, Paciocco and Zarnett JJ.A.

Between

Golam Mehedi Appellant

and

Dale Smith, M.A. Hameed, Wendell Lacombe and Gordon Mackay, C.O.B. Job Success, 2057161 Ontario Inc.

Counsel

Glenroy Bastien, for the appellant

Karen Papadopoulos, for the respondent Her Majesty the Queen in Right of Ontario [1]

Heard: February 13, 2019

On appeal from the order of Justice Michael R. Dambrot of the Superior Court of Justice, dated November 20, 2017.

Reasons for Decision

[1] After unsatisfactory dealings with an entity known as Job Success, the appellant, Golam Mehedi, commenced a civil action in the Superior Court of Justice against Job Success and three individuals he alleged were connected to it: Dale Smith, Abdul Hameed and Wendell Lacombe. His action, commenced in January 2011, was dismissed in June 2011. His appeal from that result was dismissed by this court in January 2012.

[2] A CBC Marketplace episode, which the appellant believed provided evidence in support of his claim, aired in February 2012. The appellant moved to reopen his civil action. In November 2014 a judge of the Superior Court denied his request, but in October 2015 this court allowed an appeal from that decision, finding the motion judge's reasons to have been inadequate.

[3] The appellant, with legal advice, then settled his civil action. He subsequently moved to set aside the settlement and reopen the action, but a judge of the Superior Court dismissed his motion in July 2016.

[4] On November 24, 2016 the appellant swore a private information against the same three individuals he had sued — Smith, Hameed and Lacombe — for the offence of fraud under $5,000.

[5] A pre-enquete hearing was held before Justice of the Peace R. Roffey on April 6, 2017. J.P. Roffey declined to issue a warrant or summons directed at the proposed accused. She found there was no prima facie case against Lacombe, and even though there was such a case against Smith and Hameed, she would exercise her discretion not to issue process. She provided a number of grounds for doing so, including the fact that the limitation period for summary conviction proceedings had lapsed and a trial by indictment was not warranted, as well as the absence of a reasonable prospect of conviction on the criminal standard.

[6] On April 20, 2017, the appellant swore a second private information against a fourth individual, Gordon Mackay, for the same offence. A pre-enquete hearing was held on June 22, 2017 before Justice of the Peace R. Giulietti, who refused to issue process. She cited, among other things, the lack of a prima facie case as there was insufficient evidence to charge Mackay, and a concern about the appellant's purpose in attempting to bring criminal proceedings after his civil proceedings had been terminated.

[7] The appellant brought an application for certiorari to quash both the decisions of J.P. Roffey and J.P. Giulietti not to issue process. On November 20, 2017, Dambrot J. dismissed that application, holding that neither of the Justices of the Peace had made a jurisdictional error. The appellant appeals that decision.

[8] In our view, there is no merit to the appeal. No error is evident in the application judge's decision. The appellant's submissions have not disclosed an error in jurisdiction by either Justice of the Peace. A jurisdictional error is necessary for a certiorari application of this nature to succeed: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 19.

[9] Moreover, Crown counsel before us asserted that even if a Justice of the Peace had issued process, the Crown would have been duty-bound to withdraw charges on the basis that there was no reasonable prospect of conviction and no public interest in proceeding with the charges. Even where a Justice of the Peace has erred in declining to issue process, a person seeking to quash that refusal to issue process has suffered no prejudice if the Crown would have stayed the proceeding. An appeal from a refusal under those circumstances may be dismissed: R. v. Olumide, 2015 ONCA 18.

[10] Accordingly, on both grounds set out in paragraphs 8 and 9 above the appeal is dismissed.

K. Feldman J.A.

David M. Paciocco J.A.

B. Zarnett J.A.

[1] The order of the Superior Court from which this appeal arises names as respondents persons who were not party to the appellant's application for prerogative relief. The Crown is the properly named respondent.