COURT OF APPEAL FOR ONTARIO
CITATION: Mississauga (City) v. Khalid, 2020 ONCA 446
DATE: 20200706
DOCKET: M48073
Roberts J.A. (Motions Judge)
BETWEEN
City of Mississauga
Responding Party
and
Farhat Khalid
Moving Party
Farhat Khalid, acting in person
Robert Ryan, for the responding party
Hilary Book, appearing as amicus curiae
Heard: in writing
REASONS FOR DECISION
A. Overview
[1] On June 24, 2016, the moving party was convicted by the justice of the peace of having more than one accessory structure on her property between the period September 16, 2013 to January 8, 2014, a contravention of s. 4.1.2.1 of the municipal zoning by-law, and an offence under the Planning Act, R.S.O. 1990, c. P.13: City of Mississauga, by-law 0225-2007, Mississauga Zoning By-law (June 20, 2007).
[2] The moving party appealed her conviction and sentence. On June 2, 2017, the appeal judge dismissed her appeal for failure to file an abandonment of various grounds of appeal contrary to his order of April 17, 2017.
[3] The moving party brought this motion for leave to appeal the dismissal of her appeal. It was initially returnable in motions court and then adjourned to permit the moving party to obtain and file transcripts and to be heard in writing with additional written submissions by amicus and the responding party.
B. Test for leave to appeal under s. 131 of the Provincial Offences Act
[4] The moving party seeks leave to appeal the appeal judge’s dismissal of her appeal under s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33, whichreads as follows:
131 (1) A defendant or the prosecutor or the Attorney General by way of intervention may appeal from the judgment of the court to the Court of Appeal, with leave of a judge of the Court of Appeal on special grounds, upon any question of law alone or as to sentence.
(2) No leave to appeal shall be granted under subsection (1) unless the judge of the Court of Appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.
[5] In order for the moving party to obtain leave, she must satisfy the following well-established criteria: (1) special grounds; (2) on a question of law alone; and (3) that, in the particular circumstances of this case, it is essential in the public interest or for the due administration of justice that leave be granted: Antorisa Investments Ltd. v. Vaughan (City), 2012 ONCA 586, 1 M.P.L.R. (5th) 240, at para. 8; North Bay (City) v. Vaughan, 2018 ONCA 319, at para. 10. What constitutes “special grounds” in s. 131(1) is informed by the requirement in s. 131(2) that it is essential in the public interest or for the due administration of justice that leave be granted: Antorisa Investments Ltd., at para. 8. The threshold for granting leave is very high and leave should be granted sparingly: Antorisa Investments Ltd., at para. 8; Ontario (Ministry of the Environment and Climate Change) v. Sunrise Propane Energy Group Inc., 2018 ONCA 461, 17 C.E.L.R. (4th) 174, at para. 13.
C. Issues
[6] Ably assisted by amicus, the moving party raises various grounds in support of her motion for leave to appeal, which I summarize as follows:
The appeal judge was biased and prejudiced against the moving party because of previous attendances on another matter. There was a failure of natural justice because the appeal judge dismissed the appeal without giving the moving party an opportunity to be heard on the merits. It is therefore essential for the due administration of justice that leave be granted.
The appeal from conviction and sentence has merit because the justice of the peace erred in determining that the by-law contravention continued and the charges against the moving party were therefore laid within the applicable six-month limitation period. This was an error of statutory interpretation and it is therefore essential to the public interest that leave be granted.
D. Analysis
(1) The Natural Justice Issue Does Not Warrant Leave to Appeal
[7] The moving party submits the appeal judge was biased and prejudiced against her because of their previous interactions on attendances in another proceeding. As indicated in the September 23, 2016 transcript from that proceeding, the appeal judge dismissed the moving party’s motion to restore her appeal and advised her husband, a paralegal who represented the moving party, that he did not want to see him again. The moving party submits that the appeal judge should have adjourned the appeal to another judge in the present proceeding, as requested by the moving party, and as the appeal judge indicated on the April 17, 2017 attendance. Instead, the moving party maintains, he unreasonably dismissed the moving party’s appeal without a hearing.
[8] These submissions have failed to establish that the due administration of justice requires leave to appeal be granted in this case to address a failure of natural justice. I see nothing in the three transcripts of the various attendances before the appeal judge, filed in support of the moving party’s motion, that would displace the strong presumption of judicial impartiality: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20 and 25. Nor do the transcripts ground any other claim that natural justice was denied.
[9] While the appeal judge expressed himself awkwardly on the September 23, 2016 attendance, a fair reading of the transcript and the context of the proceedings demonstrate that by his impugned statement, the appeal judge simply indicated, albeit with some frustration, to the moving party’s husband that the proceeding was over and there would be no more attendances. That the appeal judge’s expression of frustration on September 23, 2016 in another proceeding did not rise to bias or prejudice in the present proceeding is shown by his allowing the moving party yet another adjournment and opportunity to put her appeal in order. That the appeal judge allowed the requested adjournment does not equate with an agreement that he should not hear the appeal.
[10] I also see no error or failure of natural justice in the exercise of the appeal judge’s discretion to dismiss the appeal because of the moving party’s failure to comply with his April 17, 2017 order. Considered in the context of these proceedings and, especially, the moving party’s failure to perfect her appeal in a timely manner, the appeal judge’s dismissal of the appeal was reasonable and fair and within his discretion to control the court’s process.
[11] On November 18, 2016, the moving party was granted an adjournment to perfect her appeal by ordering the requisite transcripts. The moving party failed to do so. On April 17, 2017, the moving party submitted that she did not need the transcripts since she was prepared to abandon her numerous other grounds of appeal and pursue only the limitation period issue. As already noted, the appeal judge granted the moving party a further adjournment to June 2, 2017 to allow her to file a notice of abandonment of the other grounds of appeal. The order clearly provided that if the moving party failed to file the notice of abandonment, the appeal would be dismissed. On June 2, 2017, the moving party acknowledged her failure to file a notice of abandonment and provided no reasonable explanation for her failure to do so. The appeal judge accordingly dismissed the appeal.
[12] I see no basis on which this court would interfere with the appeal judge’s discretionary order. It is not essential to the due administration of justice that the natural justice issue be raised on appeal given that it lacks merit.
[13] This conclusion is sufficient to dispose of the moving party’s motion for leave to appeal.
(2) The Limitation Period Issue Does Not Warrant Leave to Appeal
[14] While it is unnecessary for me to address the justice of the peace’s disposition of the limitation period issue, for completeness, I would simply note that this ground raises neither an issue of law, nor a matter essential to the public interest or administration of justice. Rather, it represents a challenge to the justice of the peace’s factual findings concerning the moving party’s construction of the structures in issue. Her determination that the charge was laid within the applicable six-month limitation period was based on her factual finding that further construction occurred up to January 8, 2014. These factual findings are dispositive of the limitation period issue. This ground therefore does not meet the criteria for leave to appeal.
E. Disposition
[15] For these reasons, I conclude that the moving party has not met the high threshold for obtaining leave to appeal and I dismiss the motion.
“L.B. Roberts J.A.”