Court of Appeal for Ontario

Date: 2020-03-18 Docket: C66789

Judges: Simmons, van Rensburg and Harvison Young JJ.A.

Between:

Sylviette Rita Brown, Trustee, Greenworld Disability Trust and Greenworld Farming as applicable to Property Roll No.1970 000 012 76100 (Lot 7W Con. 2) Applicants (Appellants)

And:

Department of Justice, Canada, Ministry of the Attorney General, Ontario, Lake Simcoe Region Conservation Authority Respondents (Respondent)

Counsel:

Sylviette Rita Brown, in person John A. Olah and Francesca D'Aquila-Kelly, for the respondent Lake Simcoe Conservation Authority

Heard: February 19, 2020

On appeal from the order of Justice Peter J. Cavanagh of the Superior Court of Justice, dated March 5, 2019, with reasons reported at 2019 ONSC 1485.

Reasons for Decision

[1] In oral argument before this court, the appellants – Sylviette Rita Brown, Greenworld Disability Trust and Greenworld Farming – clarified that they are appealing only from the motion judge’s order striking out the proceeding commenced by them and Murray Brown in the Superior Court by notice of appeal and determination of constitutional rights (court file CV-18-595997) (the “Superior Court proceeding”). They are not appealing the motion judge’s order, dated the same day, dismissing their application for injunctive and other relief (Superior Court court file CV-18-595542).

[2] In the Superior Court proceeding and a related motion before the motion judge, the appellants sought relief in relation to Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”) prosecutions of Murray Brown under the Conservation Authorities Act, R.S.O. 1990, c. C.27 and a related regulation.

[3] It is undisputed that those prosecutions proceeded in the Ontario Court of Justice before a Justice of the Peace, based on five informations laid under Part III of the POA. Mr. Brown was convicted of those offences in March 2018. In April 2018, he was sentenced to a $40,000 fine and ordered to remediate the property related to the charges.

[4] On motions brought by the Lake Simcoe Region Conservation Authority (“LSRCA”) and the Ministry of the Attorney General (“MAG”), the motion judge struck out the Superior Court proceeding. He held that the appellants had no standing to appeal, as they were not parties to the POA prosecutions and, in any event, the proposed appeal was brought in the wrong court. The motion judge awarded the Superior Court proceeding costs to the LSRCA and the MAG.

[5] The essence of the appellants’ argument to this court is that the Justice of the Peace overstepped her jurisdiction both with respect to the convictions and the remediation order, for the following reasons.

[6] First, they submit that the standing issue is a matter involving the identity of the Greenworld Trust, the true owner of the property, and that the Trust has a right under the Canadian Charter of Rights and Freedoms to come before the Superior Court to vindicate its rights. Second, they submit that the remediation order was made without jurisdiction because Mr. Brown did not either own or have control over the property.

[7] On behalf of the appellants, Mrs. Brown also submits that the remediation order was made to reverse changes to the grading of the property, changes which the appellants assert were not actually made.

[8] Based on the record before us, we see no basis on which to interfere with the motion judge’s decision to strike the Superior Court proceeding. Any appeal of the POA convictions – which were decided by a Justice of the Peace – shall be to the Ontario Court of Justice, presided over by a provincial judge: POA, s. 116(2)(a). The Greenworld Trust was not the subject of the prosecution and has no freestanding Charter right that can be asserted in the Superior Court. The appellants’ remaining arguments were or could have been made by Mr. Brown in the course of the prosecutions or any appeal to the Ontario Court of Justice. To the extent the appellants were denied standing before the Justice of the Peace, any remedy to which they may have been entitled did not lie in the form of an appeal to the Superior Court.

[9] Finally, we note that in his reasons, the motion judge observed that “Mr. and Mrs. Brown, in their submissions agreed that the appeal brought in this court should not proceed, given that Mr. Brown intends to commence an appeal to the Ontario Court of Justice.”

[10] Leave to appeal the costs awards is required but has not been sought. In any event, we see no clear error in the costs award to justify granting leave to appeal.

[11] For these reasons, the appeal is dismissed with costs to the respondent on a partial indemnity scale fixed in the amount of $4,500 inclusive of disbursements and HST.

“Janet Simmons J.A.”

“K. van Rensburg J.A.”

“A. Harvison Young J.A.”