Court of Appeal for Ontario

Docket: C66302

Judges: Watt, Pardu and Nordheimer JJ.A.

Parties

Between

Her Majesty the Queen in right of Ontario as represented by the Minister of Transportation

Applicant (Respondent)

and

2523654 Ontario Inc., Aamir Khan, Abdul Qayyum Mian and Sam Guido

Respondents (Appellants)

Counsel

Eric Gionet and Andrew Wood, for the appellants

Sarah Valair, for the respondent

Hearing and Decision

Heard and released orally: May 3, 2019

On appeal from: The order of Justice Guy DiTomaso of the Superior Court of Justice, dated November 26, 2018 with reasons reported at 2018 ONSC 7060

Reasons for Decision

Background

[1] The appellants appeal from the order of the application judge who granted the respondent's application and dismissed the appellants' cross-application.

[2] The proceedings arise out of the placement of trailers with signs on them on property that borders Highway 400 such that the signs can be seen by motorists using the highway.

[3] The respondent gave notice to the appellants that the trailers and the signs violated the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50 ("PTHIA"). The respondent required that the appellants remove the signs. The appellants refused. The respondent brought an application, pursuant to s. 112 of the PTHIA, for a warrant directing the Sheriff to take such steps as may be necessary to enable the Minister of Transportation to have the signs removed. The appellants brought a cross-application for a declaration that the signs were permitted. The application judge granted the respondent's application and dismissed the appellants' cross-application.

Issues on Appeal

Incorrect Subsection Reference

[4] There is no dispute that the signs are within 400 metres of Highway 400 and are, consequently, presumptively in violation of the provisions of the PTHIA. The appellants point to the fact that the respondent relied on incorrect subsections of the PTHIA when it directed the appellants to remove the signs.

[5] While there was at least one reference to an incorrect subsection of the PTHIA, we agree with the application judge that that error is a mere irregularity that does not vitiate the legal authority of the direction given. There is no doubt that the appellants were well aware of the issue that the respondent was taking with their signs. The appellants were, therefore, on full notice of the issue being raised and were not, in any way, misled because of the erroneous reference.

Deficiency in Authorization

[6] Another issue raised by the appellants is that the authorization that the Minister issued to a third party to have the signs removed did not specify which specific signs were subject to the authorization. Indeed, the authorization referred only to a "sign" and not to "signs". The application judge recognized that this was a problem with the authorization and ordered that the respondent "shall immediately deliver a supplementary Authorization" to specifically identify the seven portable signs that were in issue.

[7] We agree with the appellants that the application judge ought not to have made an order of this type that the respondent had not sought. However, all that the application judge's order did was direct the respondent to do something that it could have done on its own. Once the error was recognized, there was nothing that prevented the respondent from issuing a fresh authorization with the seven signs identified. Thus, the order made by the application judge is of no consequence in the ultimate result.

Cross-Application

[8] Finally, we agree with the application judge that the appellants' cross-application had to be dismissed. The declaration that the appellants sought fundamentally confuses the provisions of the respondent's sign policy with the general prohibition against signs within 400 metres of a highway under the PTHIA. On that latter point, in our view Highway 400 is both a controlled access highway and a Kings Highway under the PTHIA.

Conclusion

[9] The appeal is dismissed with costs to the respondent payable by the appellants jointly and severally and fixed in the agreed amount of $8,500 inclusive of disbursements and HST.

"David Watt J.A." "G. Pardu J.A." "I.V.B. Nordheimer J.A"