COURT OF APPEAL FOR ONTARIO

CITATION: Weisdorf v. Toronto, 2020 ONCA 401

DATE: 20200622

DOCKET: C66628

Juriansz, Pardu and Huscroft JJ.A.

BETWEEN

Christopher A. Weisdorf

Applicant (Appellant)

and

The City of Toronto

Respondent (Respondent)

Christopher Weisdorf, acting in person

Brennagh Smith, for the respondent

Heard: June 16, 2020 by videoconference

On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated January 28, 2019, with reasons reported at 2019 ONSC 692, 84 M.P.L.R. (5th) 256.

REASONS FOR DECISION

A. overview

[1] The appellant appeals from a decision dismissing his application to quash City of Toronto Bylaw No. 799 – 2017 (the “parking bylaw”).

[2] The parking bylaw establishes an administrative penalty system to enforce bylaws regulating the parking, standing, or stopping of vehicles. On December 6, 2017, the appellant received a parking violation notice. After a hearing before the City of Toronto’s Administrative Penalty Tribunal, the appellant brought an unsuccessful application seeking, among other things, to quash the parking bylaw and restore the prior system of enforcement under the Provincial Offences Act, R.S.O. 1990, c. P.33.

[3] On appeal, the appellant argues that the parking bylaw:

a) is ultra vires because as subordinate legislation it cannot remove rights without the clear intention of the legislature;

b) is ultra vires because statutes are paramount over subordinate legislation and the bylaw is inconsistent with both the Provincial Offences Act and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22;

c) violates ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms;

d) was enacted in bad faith for an improper purpose; and

e) was enacted with insufficient notice and/or consultation.

[4] The appellant also alleges that the application judge erred by ignoring the majority of his evidence.

[5] For the reasons that follow, the appeal is dismissed.

B. analysis

(1) The parking bylaw is not ultra vires, nor does it conflict with either the Provincial Offences Act or the Statutory Powers Procedure Act

[6] The City of Toronto enacted the parking bylaw under explicit statutory authority. Section 81(1) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, authorizes the City “to require a person to pay an administrative penalty if the City is satisfied that the person has failed to comply with any by-laws respecting the parking, standing on stopping of vehicles”. Administrative Penalties, O. Reg. 611/06 was enacted in 2006, allowing the City to exercise its powers under s. 81(1) to establish an administrative penalty system. In 2017, the City enacted the parking bylaw pursuant to O. Reg. 611/06.

[7] The appellant recognizes that there is express statutory authority for the making of the bylaw. His concern, however, is not the adoption of the administrative penalty system for parking infractions, but that parking infractions were previously dealt with under the Provincial Offences Act. A major feature of several of his arguments is the fact that the substantive and procedural rights under the Provincial Offences Act are no longer available and have been replaced by an administrative system.

[8] He submits that subordinate legislation cannot remove rights without express language showing that is the legislature’s intent. He does not consider the express language of s. 81 of the Act to be explicit enough. He submits that it was necessary that s. 81 include a provision that, upon the adoption of the administrative penalty system, the Provincial Offences Act would no longer apply to parking infractions. He is mistaken in that submission. The unambiguous and explicit language of s. 81(1) of the City of Toronto Act, 2006 demonstrates the legislative intent to authorize the adoption of the administrative penalty system. The legislative intent is also readily apparent from the enactment of s. 102.1(1) of the Municipal Act, 2001, S.O. 2001, c. 25, which authorizes all municipalities to adopt an administrative penalty system for parking infractions.

[9] He is similarly mistaken in his other arguments. He argues that the parking bylaw is inconsistent with the Provincial Offences Act and the Statutory Powers Procedure Act and that these statutes are paramount over the parking bylaw.

[10] As the application judge explained, the Provincial Offences Act does not apply to the parking bylaw, and the bylaw is expressly made compliant with the Statutory Powers Procedure Act. Chapter 610 of the City of Toronto Municipal Code, as amended by the parking bylaw, directs that all reviews conducted by a hearing officer “shall be in accordance with the Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22, [sic] as amended”: § 610-2.3(K).

(2) The parking bylaw does not violate ss. 7 or 11(d) of the Charter

[11] The appellant argues that the bylaw breaches ss. 7 and 11(d) of the Charter. As the application judge explained, s. 7 does not apply because neither the process nor the penalties available under the parking bylaw infringes a person’s right to life, liberty, or security of the person. There is no possibility of arrest or detention, no possibility of imprisonment, and no penal consequence. Section 11(d) likewise does not apply because a person subject to an administrative penalty is not charged with a criminal or quasi-criminal offence.

(3) The parking bylaw was not enacted in bad faith or for an improper purpose

[12] The appellant has not satisfied the heavy burden required to establish that the City acted in bad faith and for an improper purpose by enacting the bylaw. The appellant’s argument and the circumstances upon which it relies amount to nothing more than conjecture. The application judge properly rejected the appellant’s argument that the City enacted the parking bylaw to increase its revenues.

(4) Other arguments

[13] We do not entertain the appellant’s new argument on appeal that the City failed to provide proper notice and engage in adequate consultation before passing the bylaw. The City filed its material in response to the application without notice of this issue and we are not persuaded the record is adequate to permit its consideration.

[14] We reject the appellant’s submission that the application judge impaired his application by ignoring the vast majority of his evidence and the jurisprudence upon which he relied. The appellant misconceives the import of his evidence and the relevance of the jurisprudence he cited.

C. conclusion

[15] The appeal is dismissed.

[16] We accept the application judge’s observation that the appellant sincerely and passionately believed in his case. However, by proceeding with the appeal after the application judge’s clear reasons explaining that he was mistaken, the appellant has caused the City to expend additional resources. The City is entitled to costs but sought only a fraction of its costs. In the circumstances, we would fix those costs in the nominal amount of $5,000, inclusive of taxes and disbursements.

“R.G. Juriansz J.A.”

“G. Pardu J.A.”

“Grant Huscroft J.A.”