Court File and Parties

Court File No.: Mississauga M61144275 Date: 2013-11-15 Ontario Court of Justice

In the Matter of: An appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

1747114 Ontario Inc. Appellant

— AND —

The Corporation of the City of Mississauga Respondent

Before: Justice N.S. Kastner

Heard: October 25, 2013

Reasons for Judgment Released: November 15, 2013

Counsel:

• Ms. H. Bourgeois, agent for the prosecution
• Mr. James McGowan, on behalf of the defendant, 1747114 Ontario Inc.

On Appeal From: A conviction by Justice of the Peace J. Fletcher on January 3, 2013

KASTNER J.:

Introduction

[1] The Appellant's representative on this appeal, Mr. James McGowan, is a broker for a courier service called Dasco Courier Inc. Mr. McGowan was admittedly the driver of the vehicle which received the parking infraction notice in question on this appeal, and he appeared as the company representative at trial, testified and made submissions at the trial before the Justice of the Peace.

[2] Undoubtedly, Mr. McGowan is passionate about the subject of couriers receiving tickets for alleged parking infractions in the Greater Toronto Area. Although he is not a licensed legal agent or legally trained, he has done a great deal of research into the legal issues in such cases over a period of years, and he submitted that he has appeared in many courts, including, he states, the Ontario Court of Appeal regarding a lawsuit he had filed against the City of Toronto regarding parking issues.

[3] Some of his research relates to other discrete issues not before the Court. All of the bound volumes that the Appellant has referred to in submissions have been marked as lettered exhibits on this appeal. As an appellate forum, this Court considers all the relevant materials and submissions, and focuses this decision solely on the issues presented in the actual case presented in this appeal. I have reviewed all of the materials provided, even those not expressly referred to below.

The Offence

[4] The corporation is charged by the City of Mississauga, as the owner of a Honda motor vehicle with a specified license plate number, that on January 24, 2012 at 12:25 p.m., it committed the infraction specified as:

Park Vehicle in a Designated Parking Space Without Displaying a Permit, Province of Ontario

At: Princess Royal Dr. South Side

Contrary to: City of Mississauga By-law 1-09 Section 6(1)

[5] In lay terms, Mr. McGowan is charged with parking his vehicle in a spot designated for disabled persons, or a "handicapped" space. Those parking spaces, also known as accessible parking spaces, are for the exclusive use of only those with proper permits issued by the Province of Ontario and properly displayed.

[6] There was no issue at the trial or on this appeal that Mr. McGowan does not have such a permit, nor was he displaying one at the time of the infraction. He was not transporting anyone with such a permit.

The Legislation

[7] This appeal does not challenge the ability of the Corporation of the City of Mississauga to pass this by-law.

[8] Sections 9 and 11 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, authorize a municipality to enact by-laws regulating parking.

[9] Section 9 of the Municipal Act sets out that "a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act".

[10] Section 11(3) of the Municipal Act permits municipalities to pass by-laws "respecting matters within the following spheres of jurisdiction: highways, including parking and traffic on highways; (as well as) transportation systems, other than highways; (and) parking except on highways".

[11] Section 102 of the Municipal Act reads as follows:

Accessible parking permits

102. (1) If a municipality passes a by-law for establishing a system of accessible parking, the sole manner of identifying vehicles shall be an accessible parking permit issued and displayed in accordance with the Highway Traffic Act and the regulations made under it. 2009, c. 33, Sched. 26, s. 5 (1).

Designated parking spaces

(2) Without limiting sections 9, 10 and 11, a local municipality may require the owners or operators of parking lots or other parking facilities to which the public has access, whether on payment of a fee or otherwise, to provide designated parking spaces for vehicles displaying an accessible parking permit and if it does so, the local municipality shall prescribe the conditions of use of the accessible parking permit and shall prohibit the improper use of the permit. 2009, c. 33, Sched. 26, s. 5 (1).

Removal of vehicle

(3) A by-law passed in accordance with subsection (2) may provide for the removal and impounding of any vehicle, at its owner's expense, parked or left contrary to the by-law. 2006, c. 32, Sched. A, s. 44.

Administrative penalties, parking by-laws

102.1 (1) Without limiting sections 9, 10 and 11, a municipality may require a person to pay an administrative penalty if the municipality is satisfied that the person has failed to comply with any by-laws respecting the parking, standing or stopping of vehicles. 2006, c. 32, Sched. A, s. 45. [emphasis added]

Limitation

(2) Despite subsection (1), the municipality does not have the power to provide that a person is liable to pay an administrative penalty in respect of the failure to comply with by-laws respecting the parking, standing or stopping of vehicles until a regulation is made under subsection (3). 2006, c. 32, Sched. A, s. 45.

[12] It is clear that a municipality may pass a by-law such as the one in the instant case, and can require a person to pay an administrative penalty for failing to comply with such a by-law.

[13] I set out below the text of the Mississauga Accessible Parking By-Law 1-09 including the preamble, as it sets out the authority and legislative intention of the Respondent:

THE CORPORATION OF THE CITY OF MISSISSAUGA

ACCESSIBLE PARKING BY-LAW 1-09

(amended by 170-11)

WHEREAS sections 9 and 11 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, authorize a municipality to enact by-laws regulating parking;

AND WHEREAS section 102 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, confers upon Council the power to pass by-laws for requiring the owners or operators of parking lots or other parking facilities to which the public has access, whether on payment of a fee or otherwise, to provide designated parking spaces for the sole use of vehicles displaying a disabled parking permit issued under and displayed in accordance with the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended and the regulations made under it, and for prescribing the conditions of use of such permit and for prohibiting the improper use of the permit;

AND WHEREAS section 427 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended provides that a by-law establishing a system of disabled parking shall provide that any person who contravenes the by-law is guilty of an offence and on conviction is liable to a fine of not less than $300.00;

AND WHEREAS the Council of The Corporation of the City of Mississauga considers it desirable to repeal By-law 134-83, being the Disabled Persons Parking By-law as amended and enact a new By-law named The Accessible Parking By-law to capture the intent and spirit of the Accessibility for Ontarians with Disabilities Act, 2005.

NOW THEREFORE the Council of the Corporation of the City of Mississauga ENACTS as follows:

1. In this By-law,

"designated parking space" means a parking space designated under this By-law for the exclusive use of a vehicle displaying a permit in accordance with the requirements of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, the regulations made thereunder and this By-law.

"disabled person" means an individual that meets the requirements of such as set out in the regulations made under the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended.

"permit" means:

1. A current and valid disabled person parking permit issued by the Ministry of Transportation under the provisions of the Highway Traffic Act, R.S.O., 1990, c. H.8, as amended; or

2. A current and valid permit, number plate or other marker or device bearing the international symbol of access for the disabled which has been issued by a legally recognized jurisdiction outside Ontario.

"public parking area" means any open area or portion of a structure other than a street or highway, intended for the temporary parking of vehicles and on which there are designated parking spaces, whether their use involves the payment of a fee or otherwise but does not include parking areas in lands used for residential purposes.

"unauthorized vehicle" means a vehicle that is not displaying a permit in accordance with the provisions of the Highway Traffic Act, R.S.O., 1990, c. H.8, as amended and the regulations made thereunder or is displaying a permit but is not being used to pick up or transport the holder of the disabled parking permit or in the case of a corporation to which a permit has been issued is not being used to transport a disabled person.

6. (1) No person shall park, stand or leave an unauthorized vehicle in a designated parking space. (170-11)

(2) Any person who contravenes Section 6(1) of the By-law is guilty of an offence and on conviction is liable to a fine of $350.00 exclusive of costs.

(3) Any person may, upon presentation of a Parking Infraction Notice issued for an offence committed under subsection 6(1) of this By-law, pay out of Court within 10 days, exclusive of Saturdays, Sunday and Holidays, from the date of issue of the said Parking Infraction Notice, the sum of $300.00. If payment is not made in accordance with the procedures set out in this section, the fine provided for in subsection 6(2) shall be recoverable under the provisions of the Provincial Offences Act, R.S.O. 1990, c. P-33 as amended.

10. Every person who contravenes any provision of this By-law is guilty of an offence and is liable to a fine and any other penalties imposed pursuant to the Provincial Offences Act, R.S.O. 1990, c. P-33, as amended.

[14] The by-law expressly and clearly states that no one shall "park, stand or leave" an unauthorized vehicle in a designated space.

[15] The Appellant is presumed to know the law, including the by-laws. Section 81 of the Provincial Offence Act provides that "ignorance of the law by a person who commits an offence is not an excuse for committing the offence": R.S.O. 1990, c.P.33, s.81.

[16] Accessible Parking is presently ubiquitous, clearly marked, and unambiguously prohibited for those not permitted by law.

Trial Proceedings

[17] Mr. McGowan indicated to the presiding Justice of the Peace that he represented the numbered company, as a courier who rents a car from this company.

[18] Officer DiSalvo, a Mississauga municipal law enforcement officer, testified that he issued the infraction notice at 12:25 p.m. on the offence date at the location specified in the infraction notice. The vehicle was a two door Honda, parked in a handicap spot on the south side just north of City Hall. The spot was clearly signed as an accessible spot in the front and rear with arrows indicating the actual spot.

[19] No permit was displayed. The officer checked the entire vehicle, checking the front window, the visors, the back and everywhere else visible on and in the vehicle.

[20] The spot was in an indented portion on the street, and the designation signs for handicap parking were pole mounted and clearly visible.

[21] There were approximately two or three accessible spots at that location.

[22] He was asked how long he observed the vehicle there by Mr. McGowan. The officer testified that he saw the vehicle in the prohibited spot, checked for signs, and observed the vehicle parked within that spot for approximately ten minutes.

[23] Officer DiSalvo described a vehicle that is standing, whether occupied or not, and not in the process of loading or unloading, as "parked".

[24] The Justice of the Peace then concluded that the Crown had established a prima facie case, and Mr. McGowan chose to give evidence.

[25] Much of Mr. McGowan's testimony was argument of the issues in the case, rather than evidence. He relied on the Highway Traffic Act definitions and the common law to assert that he was not parking, but was standing at the time, in the process of completing a delivery.

[26] Mr. McGowan stated that he was at the City Hall for Mississauga that date, and disputed the officer's description of the spots. He described an indented lane on the north side of the building which has two spaces for ordinary parking and five or more spaces for handicap parking. He said when he arrived the two regular spaces were occupied, and he "was forced to use one of the handicap ones".

[27] He said that he was not parking, but was "standing", as he was on delivery. He tendered the waybill for the delivery which contains the time of delivery as 12:25 p.m., the same time that the ticket was issued.[1]

[28] He announced he would appeal his case all way up to the Court of Appeal, while still in the witness box, attempting to make argument whilst testifying.

[29] In cross-examination, Mr. McGowan acknowledged that the tax office, where he was delivering that date, was on the fifth floor of Mississauga City Hall, which he accessed by elevator.

[30] He had to wait for the elevator, both to access the fifth floor, and to later return to the ground level. He believed he was there a total of about five minutes.

[31] He did not have a passenger that day.

[32] Submissions were not lengthy. The Crown submitted that the short form wording of the ticket said "park", but the by-law referred to prohibits parking, standing or leaving an unauthorized vehicle in a designated parking space. She seemed to suggest that the express referral to the section number covered all three modes of commission of the offence.

[33] Secondly, the Crown submitted that the spot in question required a permit. There was no evidence at all that the defendant had a permit, and thus the offence was made out.

[34] Mr. McGowan agreed with the definition, but said that the by-law did not change the common law. He relied on Section 80 of the Provincial Offences Act that the common law shall continue to apply "except when it has been altered by or inconsistent with this or any other Acts." He submitted the by-law is not an Act, and relied upon the Brain decision from 1930, which he submitted the Court was bound by.

[35] In addition, he argued that he was charged with parking, not standing, and he said he was in fact standing as defined by the cases.

[36] Although not reiterated in submissions, in his testimony, Mr. McGowan argued that he was actually engaged in loading and unloading merchandise, so he was not parked.

[37] He also mentioned the case of Abashasheimi and Monize, which he summarized as requiring the vehicle to be attended, but he did not provide that decision.

[38] In addition he briefly submitted that statutory interpretation favoured the defendant where there was ambiguity.[2] He said that 'loading and unloading' are ambiguous, and should include access to a premise for delivery.

[39] Justice of the Peace Fletcher stated she had considered the totality of the evidence and submissions made. She found as a fact the vehicle operated by Mr. McGowan was parked in the prohibited designated space without displaying a proper permit, and was satisfied that the essential elements had been proven beyond a reasonable doubt. She rejected the defence that a courier delivering a document would be permitted to park or stand there.

[40] On sentence, Mr. McGowan said that "unless the penalty was reduced radically or totally deleted", he would appeal the decision. Notwithstanding this "apparent threat to the Court to reduce the penalty", as the trial Justice of the Peace characterized it, she imposed the set fine penalty.

Background

[41] Although these cases were not provided by the Appellant in his submissions and large books of authority, some of the issues in this appeal have been argued by him in many Provincial Offence Act proceedings without success.

[42] Small Claims Court proceedings[3] were commenced by Mr. McGowan and were heard by Deputy Judge Mungovan. The plaintiff alleged that the officials were negligent in handing out more than 200 parking tickets between 1997 and 2005 that contravened the Highway Traffic Act. The plaintiff submitted that the defendants were directly liable for breach of their duty to properly instruct their officials as to correct interpretation of the Highway Traffic Act. The defendants contended that the plaintiff's claim disclosed no reasonable cause of action.

[43] Deputy Judge Mungovan summed up the action in the following way in paragraphs 52 to 54:

If this motion to dismiss the action were to fail, thereby allowing the action to proceed, would the Small Claims Court be simply relitigating the issue that was several times before the Provincial Offences Court? In the many trials before the Provincial Offences Court it had to decide whether Mr. McGowan's taking the time to deliver articles to customers was within the exception to the prohibition against parking. Accordingly, the court's construction of the definition of "park" or "parking", as those words appear in the Highway Traffic Act, is vital to the outcome of the charge of parking in contravention of the Act. Those words are defined as follows:

1. (1) In this Act,

"park" or "parking", when prohibited, means the standing of a vehicle, whether occupied or not, except when standing temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers;

On each conviction the trial judge must have reached the conclusion that the exception to prohibited parking, as outlined in the Highway Traffic Act, did not absolve Mr. McGowan from parking his motor-car in prohibited areas. It would appear from the Plaintiff's Claim, as buttressed by the submissions, that the Parking Enforcement Officers, in some of the cases anyway, ticketed Mr. McGowan while he was out of sight on a delivery. So the court probably concluded that in those cases he was not "actually engaged in loading or unloading merchandise".

In these civil proceedings before the Small Claims Court the interpretation of the exception to prohibited parking is pivotal, because the plaintiff is alleging that the City of Toronto and the Toronto Police Services Board were both negligent: They both failed to instruct the parking officers in the parking laws, in particular, the exception to prohibited parking as set forth in s.1(1) of the Highway Traffic Act. Therefore, there is relitigation of an issue. Arbour J. has stated that relitigation is a blight on that aspect of the administration of justice that deals with judicial decision-making.

[44] The motion to dismiss the action as an abuse of process was granted. The matter was then appealed to the Divisional Court, and Justice Kitely allowed part of the appeal relating to abuse of process. In so doing, Her Honour stated that "Mr. McGowan's allegation is that he should not have been charged. He does not seek to set aside any of the convictions. I do not see that he seeks to set aside a judicial finding, which is the essence of abuse of process. I am persuaded that the Deputy Judge erred in his determination that the plaintiff sought to re-litigate".[4]

[45] The case was then appealed to the Ontario Court of Appeal,[5] who restored the decision of Deputy Judge Mungovan, stating:

With respect, this conclusion evinces too narrow an interpretation of the doctrine of abuse of process. Relitigation and abuse of process are not restricted to actions in which a party is seeking to set aside his or her convictions. An action can also be an abuse of process when the party seeks to challenge the correctness of a conviction without seeking to directly set it aside: see Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77.

In our view, C.U.P.E. governs this appeal. The respondent is seeking to revisit his many HTA convictions by in essence challenging the factual basis underlying the convictions. He cannot do this: see C.U.P.E. at para. 34.

This ground is sufficient to dispose of the appeal. The appeal is allowed. The decision of the Divisional Court is set aside and the decision of Deputy Judge Mungovan of the Small Claims Court is restored.

[46] In the above action involving some two hundred parking tickets, it seems this very argument was made in many Provincial Offence Act courts without success. Deputy Judge Mungovan astutely noted that pivotal to these decisions was the Court's interpretation of the definition of the word 'park' in the Highway Traffic Act, and a decision whether Mr. McGowan's taking the time to deliver articles to customers was within the exception to the prohibition against parking.

[47] The Small Claims Court judge concluded that in each of the hundreds of convictions, the trial judge must have reached the conclusion that the exception to prohibited parking did not absolve him from parking his motor vehicle in prohibited areas.

[48] This appeal involves a similar issue.

Issues and Analysis

Application of the Highway Traffic Act

I. Do the Highway Traffic Act definitions apply to this by-law?

[49] As previously discussed, the By-Law in question was enacted under the authority of Sections 9 and 11 of the Municipal Act.

[50] The Highway Traffic Act, R.S.O. 1990, Chapter H.8 defines parking and standing as follows:

1. (1) In this Act,

"park" or "parking", when prohibited, means the standing of a vehicle, whether occupied or not, except when standing temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers; ("stationnement")

"stand" or "standing", when prohibited, means the halting of a vehicle, whether occupied or not, except for the purpose of and while actually engaged in receiving or discharging passengers; ("immobilisation")

[51] The Highway Traffic Act further provides in Section 170 that:

(1) No person shall park, stand or stop a vehicle on a roadway,

[52] when it is practicable to park, stand or stop the vehicle off the roadway;

Where subs. (1) does not apply

(3) Subsection (1) does not apply to that portion of a roadway within a local municipality that was a township on December 31, 2002 and, but for the enactment of the Municipal Act, 2001, would have been a township on January 1, 2003 in respect of which there is a by-law prohibiting or regulating parking, standing and stopping. R.S.O. 1990, c. H.8, s. 170 (3); 2002, c. 17, Sched. F, Table.

Regulations, parking, etc.

(5) The Minister may make regulations prohibiting or regulating the parking, standing or stopping of vehicles upon a highway or any part of a highway or upon any class or classes thereof. R.S.O. 1990, c. H.8, s. 170 (5).

Effect of regulation on municipal by-law

(6) The part of every municipal by-law that is inconsistent with or has the same effect as a regulation made under subsection (5) is revoked on the day the regulation comes into force. R.S.O. 1990, c. H.8, s. 170 (6).

[53] As a general principle, therefore, no one should park, stand or stop a vehicle on a roadway where it is practicable to park it off the roadway. That would apply also to the Appellant here in these circumstances, even without the remedial accessible by-law passed by the City of Mississauga.

[54] The Highway Traffic Act expressly refers to by-laws enacted by municipalities as being operative in the absence of inconsistencies with the Act.

[55] Further reference is made to municipal by-laws in s.195 of the Act:

195. (1) If a provision of a municipal by-law passed by the council of a municipality or a police services board for,

(a) regulating traffic on the highways;

(b) regulating noise, fumes or smoke created by the operation of motor vehicles on the highways; or

(c) prohibiting or regulating the operation of motor vehicles or any type or class thereof on the highways,

is inconsistent with this Act or the regulations, the provision of the by-law shall be deemed to be repealed upon the inconsistency arising. R.S.O. 1990, c. H.8, s. 195 (1); 1996, c. 33, s. 15 (1); 2002, c. 17, Sched. F, Table.

[56] The operative question then is whether this Mississauga by-law is inconsistent with the Highway Traffic Act or its regulations? Clearly, the Municipal Act gives the municipality the power to enact the by-law, but the Highway Traffic Act potentially limits parking prohibition by-laws where they are inconsistent with the Act and its regulations.

[57] The Highway Traffic Act has express provisions dealing with accessible parking. Part III of the Act reads as follows:

Accessible parking permits

26. (1) The Minister shall issue an accessible parking permit to every person or organization that applies for it and meets the requirements of the regulations. 2009, c. 33, Sched. 26, s. 3 (3).

Cancellation of permit

(3) The Minister may cancel an accessible parking permit or may refuse to issue a replacement permit if the permit has been used in contravention of this Part or the regulations or of a municipal by-law passed under section 9, 10, 11 or 102 of the Municipal Act, 2001 or under section 7, 8 or 80 of the City of Toronto Act, 2006, as the case may be, for establishing a system of accessible parking. 2009, c. 33, Sched. 26, s. 3 (3). [emphasis added]

Offence, accessible parking permit

27. (1) No person shall,

(a) have in his or her possession an accessible parking permit that is fictitious, altered or fraudulently obtained;

(b) display an accessible parking permit otherwise than in accordance with the regulations;

(c) fail or refuse to surrender an accessible parking permit in accordance with this Part or the regulations;

(d) use an accessible parking permit on land owned and occupied by the Crown otherwise than in accordance with the regulations;

(e) give, lend, sell or offer for sale an accessible parking permit or permit the use of it by another person otherwise than in accordance with the regulations; or

(f) make, permit the making of, give, lend, sell or offer for sale a fictitious or altered accessible parking permit. 2009, c. 33, Sched. 26, s. 3 (4).

Penalty

(2) A person who contravenes clause (1) (a), (b), (c), (d), (e) or (f) is guilty of an offence and on conviction is liable to a fine of not less than $300 and not more than $5,000. 2001, c. 32, s. 26 (2).

Inspection, accessible parking permit

28. (1) Every person having possession of an accessible parking permit shall, on the demand of a police officer, police cadet, municipal law enforcement officer or an officer appointed for carrying out the provisions of this Act, surrender the permit for reasonable inspection to ensure that the provisions of this Part and the regulations and any municipal by-law passed under section 9, 10, 11 or 102 of the Municipal Act, 2001 or under section 7, 8 or 80 of the City of Toronto Act, 2006, as the case may be, for establishing a system of accessible parking are being complied with. 2009, c. 33, Sched. 26, s. 3 (5).

Officer may take possession of the permit

(2) An officer or cadet to whom an accessible parking permit has been surrendered may retain it until disposition of the case if the officer or cadet has reasonable ground to believe that the permit,

(a) was not issued under this Part;

(b) was obtained under false pretences;

(c) has been defaced or altered;

(d) has expired or been cancelled; or

(e) is being or has been used in contravention of the regulations or of a by-law passed under section 9, 10, 11 or 102 of the Municipal Act, 2001 or under section 7, 8 or 80 of the City of Toronto Act, 2006, as the case may be, for establishing a system of accessible parking. R.S.O. 1990, c. H.8, s. 28 (2); 2002, c. 17, Sched. F, Table; 2006, c. 32, Sched. C, s. 24 (3); 2009, c. 33, Sched. 26, s. 3 (6). [emphasis added]

Regulations, accessible parking permits

30. The Lieutenant Governor in Council may make regulations,

(a) prescribing any form for the purposes of this Part and requiring its use;

(b) respecting the issuance, renewal, cancellation, replacement and disposal of accessible parking permits;

(c) prescribing the requirements for obtaining an accessible parking permit;

(d) prescribing the period of time or the method of determining the period of time during which accessible parking permits shall be in force;

(e) governing the manner of displaying accessible parking permits on or in vehicles;

(f) requiring the erection of signs and the placing of markings to identify designated parking spaces for the use of vehicles displaying an accessible parking permit, and prescribing the types, content and location of the signs and markings;

(g) prescribing the conditions of use of an accessible parking permit on land owned and occupied by the Crown;

(h) requiring and governing the surrender of accessible parking permits;

(i) providing for and governing the recognition of permits, number plates and other markers and devices issued by other jurisdictions as being equivalent to accessible parking permits issued under this Part. 2009, c. 33, Sched. 26, s. 3 (7).

[58] It is very clear that the Highway Traffic Act directly envisages that municipalities will enact complementary legislation, or by-laws, dealing with the establishment of a system of accessible parking: s.26 (3) of the Highway Traffic Act.

[59] Such by-laws can co-exist in harmony with that Act, allowing for the governance of accessible parking allocations, to accommodate both the needs of the community and the nature of specific local roadways and parking lots.

[60] Nothing on the face of the Mississauga By-Law in question is inconsistent with provincial legislation. In fact, it enhances the spirit and intent of the three Ontario statutes dealing with accessible parking, the Highway Traffic Act, the Municipal Act, and the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c.11.

[61] In conclusion, one need not read in the definitions from other statutes, specifically the Highway Traffic Act, to interpret this by-law. The plain words speak for themselves. In those spots specifically signed and designated for accessible access only with a regulated permit, one shall not park, stand, or leave a vehicle.

[62] In the alternative, if those definitions do apply to this by-law, it does not completely assist the Appellant, since "standing", if not excepted in narrow circumstances,[6] is included in the definition of "parking". "Standing" means the "halting of the vehicle", except when discharging or receiving passengers. Thus, the Appellant would be parked within the meaning of the Highway Traffic Act if his act in leaving the vehicle was more than temporary and he was not actually engaged in "loading or unloading" "merchandise".

Parking, Standing and the Common Law

II. Does the common law on parking and standing apply?

[63] The Provincial Offences Act s.80 sets out that "every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of offences, except in so far as they are altered by or inconsistent with this or any other Act".

[64] The by-law found to be violated here is consistent with the delegation by the Municipal Act and the Highway Traffic Act to the municipality to enact by-laws regulating accessible parking.

[65] It is consistent, as it says in the preamble, with spirit and intent of the Accessibility for Ontarians with Disabilities Act, 2005.

[66] It is reasonable to conclude that By-Law 1-09 Section 6(1) alters the common law and abrogates the common law defence the Appellant relies on.

[67] A similar conclusion is reached in a case in the Appellants' materials. The Nova Scotia Court of Appeals in 1940[7] came to consider a section of the existing Motor Vehicle Act, 1932 (N.S.), c.6 which made it an offence "to stop, stand or park" a vehicle in certain prohibited places. "Parking" was defined as "the standing of a vehicle…otherwise than temporarily engaged in loading or unloading". The Court found that a charge of stopping or standing was not defined by statute, and "must be given its ordinary meaning-a cessation of forward movement".

[68] The Court stated at page 398 to 399:

It is useless to dwell upon the appellant's common law rights for these have been abrogated by statute. If the appellant had the right to stop his truck on the roadway side of the angle parked cars for the purpose of loading, then the driver of another transfer truck would have an equal right to stop his truck for the same purpose abreast of appellant's truck on the roadway side of the parallel parked cars and the two trucks would plug the street legally and block all traffic. Further, if he cannot be held guilty of violating s-s. (k), he could not be found guilty if he stopped, for the purpose of loading, in front of the fire station driveway or on the sidewalk, or in front of a fire hydrant or a private driveway or did any other of the things sought to be prescribed by the other subsections of s.117. The whole pur- pose and object of the section would be defeated.

[69] The by-law at issue here has its purpose and object to permit only those people with disabilities, such that a licensed permit has been issued to them to park in certain accessible spaces, to either park, stand or leave their vehicle in those spaces. It would utterly defeat that purpose and object if trucks could stop there unattended, or couriers could occupy those spaces for the expediency of a faster delivery of a paper, letter, cheque, or other small item.

[70] Such an interpretation would be totally at odds with the legislation enacted in 2005 in Ontario to respect, protect and assist those with disabilities and accessibility issues.

[71] In the alternative, the Court considers the status of the common law.

[72] At the time of trial, the Justice of the Peace was bound by a decision of a Justice of the Ontario Court of Justice, sitting on appeal from a decision of a Justice of the Peace.[8]

[73] The Appellant's representative says that R. v. Abbashasheimi is wrongly decided. He relies for his argument on his interpretation of the 1930 Ontario Court of Appeal decision of Brain v. Crinnian.[9] He argues that case carves out a common law exception to prohibited parking, or a right to stop temporarily upon a highway to load or unload his vehicle, which he submits includes the continuum of delivery and return to the vehicle.

[74] Brain v. Crinnian is not a regulatory decision. It involves a civil case of negligence.

[75] The factual foundation for the Brain decision is important to its interpretation, and should be set out for this appeal. The street at issue in Sarnia is 45 feet wide and busy; on the west side, angle-parking is allowed, and on the east, parallel-parking. Reeves, the owner of a truck, drove on this street to receive some parcels for transmission and delivery. He found the west side covered with cars parked angle-wise and the east side with cars parallel; accordingly, he was "forced to stop on the open street while he was in the shop on his proper business-this he did by stopping pretty close to the line of angle parked cars on the west and some 24 to 26 feet from the line of cars on the east. He then went with all convenient and proper speed on his errand into the shop". [at para.10]

[76] While Reeves was in the shop, Brain came along "on his wheel" or bicycle, going north rather close to the west line of parked cars; he had got a little north of the standing truck when a motor-car driven by Miss Crinnian came south. The driver turned out to the east to pass the truck, but, seeing traffic approaching from the south apparently preventing her passing it, instead of stopping she turned west again, and thereby struck Brain, throwing him against the truck and under it and killing him instantly. Her car itself struck the truck with such force as to shove it forward some three feet at least.

[77] It was clear that the Crinnian car was negligently driven; and the question to be decided in the appeal was as to the actionable negligence of Reeves.

[78] The Court stated[10] that the right of one with a vehicle upon a highway to stop temporarily for the legitimate purposes of his business is quite beyond question: Pratt and Mackenzie's Laws of Highways, 17th ed. (1923), pp. 134 et seq.:

In Rex v. Cross (1812), 3 Camp. 224, Lord Ellenborough, C.J., said: "A stage-coach may set down or take up passengers in the street ... but it must be done in a reasonable time ..." Cf. Robinson v. London General Omnibus Co. Ltd. (1910), 74 J.P. 161. That the right exists to stop for a reasonable time upon a street for the purpose of loading and (or) unloading goods is clear; and whether the user is excessive is a question of fact in each case: Attorney-General v. W. H. Smith & Son (1910), 74 J.P. 313. The recent case of Attorney-General v. Brighton and Hove Co-operative Supply Association, [1900] 1 Ch. 276 (C.A.), makes this beyond controversy. In that case the defendants had a number of vans, which they kept coming and going throughout the day, stopping before their warehouse for a time sufficient to load, etc.-it was held that it would be absurd to consider the stopping of a cart opposite a grocer's for five minutes, to take up goods, a nuisance: "It is always a question of degree" (p. 282). And (p. 283) Vaughan Williams, L.J., says: "Now a highway is intended primarily for the pur- pose of the passage of her Majesty's subjects, but it is also for the purpose that those who pass along it shall be able to stop at the houses which abut on the highway and either take up or discharge goods or persons there. The fact that in doing this yon temporarily reduce the width of the roadway does not make the act unlawful, and does not make your obstruction unlawful ..." And the language of Lord Ellenborough in Rex v. Jones (1812), 3 Camp. 230, 231, is adopted: "A cart or wagon may be unloaded at a gateway; but this must be done with promptness." The conclusion is reached that the question to be answered in each case is: Was a particular user necessary or reasonable?

The Court modifies the terminology of the trial judge and says that "a driver has a right to stop temporarily on a road to load or unload his vehicle, but this right is limited by the correlative right of others to pass along it," and completes the principle "by adding that the right of the driver so to stop must be exercised reasonably, and whether the length of time or extent of stoppage is reasonable is a question of fact to be determined by the circumstances of each case". [para.13]

[79] Further detailed facts include that "Reeves had occasion, in the pursuit of his legitimate business, to stop opposite the shop; he went substantially as far west as the parked cars allowed him to go, leaving enough space on the road to the east for two cars to pass each other easily; he remained away for two or three minutes only, when the accident happened":

Under the circumstances, I am wholly unable to see how it can be found that he exercised his undoubted legal right to stop to take on goods in any but a reasonable way; and think that the trial Judge should have so found. Supposing that the Highway Traffic Act, sec. 42; subsec. 1, applies, I think he has proved his non-culpability. [para.14]

[80] The Court also said that assuming, contrary to the opinion of the trial judge, the violation of the municipal by-law would make conduct actionable which would not otherwise be so considered, the defendant did not in fact violate the by-law, as angle-parking was authorised at the place in question;[11] and he did not stop longer than was necessary to load his goods.

[81] In essence, the case makes it clear that any stopping must be both reasonable and exercised reasonably. It is a question of fact to be determined in each case.

[82] In the more recent case of R. v. Abbashasheimi,[12] a decision of the Ontario Court of Justice (Provincial Division), Silverman Prov. J. took a different position on whether or not the time for delivery was encompassed by the words in the exception, namely, "except when standing temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers". [Emphasis is added.] He was not construing the common law but a statute, sec. 1(1) of the Highway Traffic Act.

[83] Judge Silverman decided that, "At first blush I can see how the learned Justice of the Peace fell into error in looking at the definition of the word "parking" as contained in section 1 of the Highway Traffic Act; but upon more careful analysis, as delineated by Mr. Gunraj in his most able submissions, that definition of the word "parking" as contained in section 1 of the Highway Traffic Act does not, and I repeat, it does not include delivery":

We have to construe the statute according to the natural and ordinary meaning of the words, and we cannot extend that meaning unless there is something in the section which would give the Court some discretion, if I may use that word, to extend the meaning of the words "loading" or "unloading"; but there is nothing that would permit that, and, accordingly I adopt and accept the thorough and able submissions of Mr. Gunraj, and I allow both appeals, and I find that the learned Justice of the Peace was in error.

[84] The facts underlying both Abbashasheimi and Monize were not that different from this case. Mr. Abbashasheimi was charged with parking during prohibited times and days. He said he was parked there for five or ten minutes and then he went on a delivery. The officer tagged the whole street first and then came back three to four minutes later to see if there was any indication of a delivery. There was no indication of delivery and no sign in the window. The defendant said that he had seen the prohibited parking sign, but thought the delivery would take no more than five minutes, which it did not. The Crown said that if the defendant was on a delivery, he had completed the act of unloading.

[85] Mr. Monize testified he was delivering a package to Sick Children's Hospital and parked the vehicle to "go up [to the third floor] and deliver the package" and when he returned he had a ticket. Evidence revealed he had been gone for five minutes.

[86] Mr. McGowan says, in effect, that the interpretation of the Highway Traffic Act in respect of parking on a highway should not vary from the common law as stated in the Brain Case. However, Silverman, J. did not inferentially agree. The Appellant submits that Abbashasheimi is wrongly decided, as it makes no reference to the Brain case.

[87] Of course, it is to be remembered that the Brain decision comes down to a case specific determination to be made on the facts of each case as to whether the stop was reasonable and exercised reasonably. It was open to Judge Silverman to interpret the two instances before him as an unreasonable exercise of unloading, in light of the time the vehicle remained unoccupied and the nature of the goods being delivered.

[88] The Crown also relies on the later decision of Justice S. MacLean, a Justice of the Ontario Court of Justice on a Provincial Offence Act appeal,[13] which discusses "actively engaged in loading or unloading" in the context of municipal by-laws in Oshawa. Her Honour noted the intent of the by-law was to restrict parking commercial vehicles in residential areas.

[89] In that case the vehicle was parked in a residential driveway, and had no activity around it. The by-law officer had viewed the vehicle in that location about ten minutes without any loading or unloading. Photos were taken that showed the back door to the truck was closed, with no ramp. The evidence of the defendant was that he was engaged in unloading but needed a quick break for food before he started.

[90] The Court cited Abbashasheimi for its similar language, although different legislation. She then finds that there has to be a reasonable interpretation of how long someone is allowed to be engaged in loading or unloading things from their own home. The Court concludes that "how this exemption will be interpreted will very much be determined by the facts of the case". [at para.41] Such a conclusion is consistent with Brain, and other like cases.

[91] The Respondent also relies on the recent decision of a Justice of the Peace, dealing with the concept of "unloading".[14] The vehicle in question was parked in a prohibited area where vehicles were lined up three in a row. No people were around the vehicle, and there was no evidence of any loading or unloading.

[92] His Worship found that this loading and unloading must be active, such that he could stop, pull up, take things out of his trunk, put them on the curb and get back in the car and move away. He distinguished the facts presented in that case where the defendant was attending a party and said he was taking items from his car to the event, since there was no hazard lights, no sign, the vehicle was not marked as a delivery vehicle and it took an inordinate amount of time to complete.

[93] Duma is just an example of an assessment by the trier of fact of the reasonableness of the stop and the exercise of its use.

[94] This case on appeal does not involve the discharge of passengers.

[95] The facts in Brain involve a delivery of parcels to a shop. It is a simple delivery to a curbside store in a small town in 1930, which did not impede traffic. It does not involve a signed prohibited space specially reserved for persons with disabilities.

[96] It does not involve delivery of an envelope of zero weight, as the waybill shows.

[97] It does not involve an errand to a highrise building accessible by elevator with an incumbent wait time.

[98] It is difficult for the Appellant to try to juxtapose that case with this one. Brain was decided over eighty years ago, in an era of fewer vehicles, one level curbside businesses, and no available parking lots. Certainly the disability issues addressed by the Accessibility for Ontarians with Disabilities Act, 2005 were decades away.

[99] It was open to the learned trial Justice of the Peace to find as a fact that standing or parking in an accessible spot was not reasonable, nor a necessary use as set out in the Brain case.

Statutory Interpretation

III. How do the rules of statutory interpretation apply?

Statutory Interpretation: The Principles

[100] It follows from the principle of legislative sovereignty that validly enacted legislation is paramount over the common law:

Acting within its constitutionally defined jurisdiction, the legislature can change or abolish the common law to any extent that it considers appropriate; this change or abrogation can be effected either expressly or by implication. The legislature's in- tention with regard to the common law must be sought using the ordinary rules of interpretation. In so far as this intention is clear, it must be respected by the courts.

[101] The author of the above text explains the relationship between the legislation and the common law in a thorough and thoughtful way,[16] and specifically discusses instances where legislation reflects specific policy choices.[17]

[102] Also discussed in the text is "implied exclusion":[18]

Resort to the common law sometimes is impliedly excluded. Where the legislature expressly codifies only part of the law relating to a matter, the court may rely on implied exclusion reasoning to conclude that the part of the law not expressly mentioned was meant to be excluded.

[103] A number of recent cases in the Supreme Court of Canada involve the application of the principles of statutory interpretation. The "modern approach" is applied, as explained in the seminal text, Driedger On The Construction of Statutes.[19]

[104] In an example of the "modern approach", in the case of Agraira v. Canada (Public Safety and Emergency Preparedness),[20] the Court found that the Minister's interpretation of the term "national interest", namely that it is focused on matters related to national security and public safety, but also encompasses the other important considerations outlined in the Guidelines and any analogous considerations, is reasonable. The Court explained:

It is reasonable because, to quote the words of Fish J. from Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, it "accords ... with the plain words of the provision, its legislative history, its evident purpose, and its statutory context" (para. 46). That is to say, the interpretation is consistent with Driedger's modern approach to statutory interpretation:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

(Construction of Statutes (2nd ed. 1983), at p. 87)

[105] In R. v. Plummer (2006), 217 O.A.C. 201, the Ontario Court of Appeal concluded that the modern approach to statutory interpretation requires a court to consider the "grammatical and ordinary meaning of the provisions in question, the legislative history and the intention of Parliament or the Legislature, the scheme of the Act, and the legislative context"(at para. 12 to 14):

As is well-known, the Supreme Court of Canada has adopted the purposive or modern approach to statutory interpretation as described in Driedger's Con struction of Statutes, 2d ed. (Toronto: Butterworths, 1983) at 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The principle of statutory interpretation applies in civil and criminal cases. See R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 at para.33 and R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 at para.32. However, if, after applying the purposive approach, genuine ambiguities remain, the court will adopt that interpretation favouring the liberty of the subject. See R. v. McIntosh, [1995] 1 S.C.R. 686 at para.29.

[106] The modern approach to statutory construction then requires one to examine the plain words of the provision, the legislative history of the provision, the purpose of the provision, and the context of the provision.

Statutory Interpretation: The Principles Applied

[107] The disputed portion of the by-law is the tripartite mode of commission of "parking, standing or leaving" a vehicle, without reference to the modification of "standing" in the Highway Traffic Act.

[108] Had the City of Mississauga by-law officer written the infraction with all 3 alternative modes of commission stated, this appeal would be moot, as the Appellant clearly left his vehicle unattended in the prohibited space.

[109] The Appellant submits that he was not parked. He says he was standing in a way permitted by common law. The Respondent submits that parking includes standing, and he was not actually loading or unloading merchandise at the time of the infraction.

[110] The plain reading of the words of the by-law would not appear to allow for a statutory or common law exception for loading or unloading in these specific spots.

[111] I would apply the doctrine of "implied exclusion" to the offence creating provision of the by-law. The restrictions set out in the by-law expressly set out that no one, but those with a valid permit, may park, stand, or leave a motor vehicle in those designated spots. The enacting municipality specifically excluded any incorporation of a temporal loading zone for goods or passengers. The exclusion implies that the codification is exhaustive as to leaving a motor vehicle in those spots. One shall not do it.

[112] Assuming, without deciding, that one has to read in that codification of the common law exception to standing "except when actually loading or unloading merchandise or passengers" in the Highway Traffic Act, how is that to be interpreted?

[113] "Actually" is defined as "opposed to, seemingly, pretendedly or feignedly, as actually engaged in farming means really, truly in fact".[21]

[114] "Merchandise" is not specifically defined, but once again the plain meaning of the term should govern.

[115] The Brain type of decision emphasizes that reasonableness is a question of fact. In this case, the item to be delivered was an envelope apparently containing a cheque which weighed "zero pounds". It is reasonable to find that such an item is not actually "loaded" or "unloaded". Those terms were meant to apply to objects that were of such a size, weight, or dimensions to necessitate a need for closeness to the destination that superceded the prohibition of parking the vehicle in that zone.

[116] Although not a recent decision, the Ontario Court of Appeal considered the application of the rules of statutory interpretation directly to parking by-laws in the decision of R. v. Budget Car Rentals (Toronto) Ltd. (1981), 31 O.R. (2d) 161 (C.A.). Chief Justice Howland held that where a statute is open to two equally reasonable interpretations, the Accused should have the benefit of the interpretation which will not subject him to the penalty.

[117] The Court applied Section 10 of the Interpretation Act, R.S.O. 1970, c.225, that

10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of anything that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

[118] In the circumstances of that case, he found however that the by-law was not capable of two equally reasonable interpretations. One interpretation of the words would make the by-law unenforceable for all practical purposes, and thus was not equally reasonable to the interpretation creating an offence for an owner of a motor vehicle, as opposed to the driver:

Administratively, the burden of monitoring breaches of parking by-laws by drivers is a monumental task. To maintain vigilance on every street so that charges could be laid against the drivers in obviously impractical. The only sensible solution was to make the owner vicariously liable for the penalty.

[119] The same is true in the instant case. Is "actually engaged in loading or unloading merchandise" (or passengers) capable of two equally reasonable interpretations?

[120] The Chief Justice in Budget Car Rentals also cautioned that merely because a statute had penal consequences, its true meaning and intent must be ascertained by applying stricter principles of construction and interpretation than those which govern the construction and interpretation of statutes generally.

At one time, as remarked by E. A. Driedger in his recent work entitled The Construction of Statutes (1974), p. 148, statutes were regarded as falling into one of two broad classes, "penal" and "remedial". On this basis penal statutes (which were taken to include not only statutes imposing penalties for violations, but also revenue statutes and statutes interfering with the liberty or property of the subject) were to be construed strictly, and remedial statutes were to be construed liberally. Against this background the language used in s. 10 of the Interpretation Act of Ontario and in s. 11 of the Interpretation Act of Canada, R.S.C. 1970, c. I-23, as amended, deeming every Act or enactment to be remedial, takes on a special and obvious significance

The principle of statutory interpretation applies in civil and criminal cases. See R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 at para.33 and R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 at para.32. However, if, after applying the purposive approach, genuine ambiguities remain, the court will adopt that interpretation favouring the liberty of the subject. See R. v. McIntosh, [1995] 1 S.C.R. 686 at para.29.

[121] While I recognize that neither the Appellant nor the Respondent are lawyers, no materials were provided to the Court considering the legislative history of this By-Law, which would have been helpful.

[122] Presumptions of legislative intent are principles of interpretation. They do not, on their own, prescribe the outcome of interpretation, but rather set out broad principles that ought to inform it. As Professor Sullivan has observed, presumptions of legislative intent, serve as a way in which the courts recognize and incorporate important values in to the legal context in which legislation is drafted and should be interpreted. These values both inform judicial understanding of legislation and play an important role in assessing competing interpretations: R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 365.

[123] The Ontarians with Disabilities Act is the short title of the Ontario Government's Bill 125 - "An Act to improve the identification, removal and prevention of barriers faced by persons with disabilities and to make related amendments to other Acts". The Act received Royal Assent on 14 December 2001 and came into force on February 7, 2002. A new piece of legislation was enacted to address accessibility issues, the Accessibility for Ontarians with Disabilities Act, 2005 in 2005. The Ontarians with Disabilities Act remains in force.

[124] The Bill's original purpose had been to achieve a barrier-free Ontario for persons with disabilities -- a right of full participation. It was to require the timely removal of existing new barriers, within reasonable time lines and in accordance with reasonable cost parameters. It was meant to apply to employment, public transit, education, provincial and municipal government services and facilities, and other goods, services and facilities offered to the public.

[125] As the Court noted in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, "[t]he preferred approach [to statutory interpretation] recognizes the important role that context must inevitably play when a court construes the written words of a statute" (para. 27). The context of this by-law is at the heart of its interpretation.

[126] It is well established that common law courts have a jurisdiction to change the common law in response to changing social conditions. In R. v. Salituro,[22] Justice Iacobucci wrote:

The courts are the custodians of the common law, and it is their duty to see that the common law reflects the emerging needs and values of our society.

[127] Major changes in the common law are left to the legislature, but modest incremental change, on the other hand, is within the jurisdiction of the courts.[23]

[128] The by-law's context is fully set out in the preamble, and it is to recognize the spirit and intent of the Accessibility for Ontarians with Disabilities Act, 2005.

[129] If one were to interpret this by-law as the Appellant submits, the result would be to dishonour that spirit and intent, and unfairly set the strides disabled people have made in achieving accessibility back decades, resulting in an absurd result.

Conclusion

[130] Although the Justice of the Peace's decision at the trial Court did not specifically and expressly mention all of the argument made before her, I bear in mind the following:

• the trial was brief and consisted of only two witnesses;

• much of the underlying foundational facts were not contested. The driver of the vehicle had left it for at least five or ten minutes in a parking space where that was not permitted;

• Mississauga By-Law 1-09 s.6 is clear and unambiguous;

• the Appellant's testimony was largely argument and case interpretation;

• full submissions were made by both prosecution and Mr. McGowan at trial;

• arguably, the Justice of the Peace was bound by the decision of a judge of the Ontario Court of Justice, sitting as a Provincial Offence Act Appeals Court, in favour of the Respondent's position;

• it is a reasonable finding of fact based on the evidence that leaving a vehicle in an accessible only spot was unreasonable; and

• on the evidence before her, the Justice of the Peace could reasonably find the length of time stopped or left was not reasonable, and amounted to "parking".

[131] The appellant left his vehicle unoccupied for a period of time estimated by the enforcement officer as at least the ten minutes he was by it. It was not a marked delivery vehicle, it was a Honda. It was not running. It was not signed. The trial justice could reasonably find that it was parked.

[132] While creative, the Appellant's rationalization for leaving his vehicle in a disabled accessible only parking space, defies both logic and common sense. The very purpose of the by-law, authorized by enabling statutes, is to prevent persons other than those designated by a valid permit, from leaving their vehicle unattended in those spaces. A valid social objective is achieved by enforcing these by-laws; namely the preservation of parking spots close to entrances of buildings for persons with mobility and/or disability issues.

[133] These parking spaces are not, in any circumstances, to be used by couriers as a substitute for regular parking spaces. The language of 'no parking, no standing and no leaving' speaks clearly and decisively to that effect.

[134] The Appellant submits that he "had no choice" but to leave his vehicle in the accessible spot because the other spots were taken. His assertion of a form of necessity is ludicrous. The Appellant was delivering an envelope to the Tax Department at the Mississauga City Hall. Aside from these few spaces, I am advised that there is underground parking at the City Hall, and under the Library next door. In addition, the Mississauga City Hall is located across from Square One Shopping Centre, which has hundreds, if not thousands of parking spaces, both above ground and underground. This would be well known to the Justice of the Peace sitting in the City of Mississauga in a courthouse nearby.

[135] It is an irresistible inference that Mr. McGowan left his vehicle in a prohibited place for reasons of expediency, particularly as his delivery was already at least twenty-five minutes late.[24]

[136] His choice of parking space may also be a conscious effort on his part to continue his ongoing litigation battle.

[137] Ever since R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299, our courts and legislatures have recognized a distinction between truly criminal and regulatory offences such as those faced by the defendant corporation. As said by a unanimous Supreme Court in Sault St. Marie in its discussion of regulatory or public welfare offences, "the punctilio of an earlier age is no longer to bind us. We must look for substance and not petty formalities."[25] To hold otherwise as urged by Mr. McGowan would represent a triumph of form over both substance and function.

[138] The Appellant's argument reflects a sense of entitlement that is not reasonable. It stretches the interpretation of the by-law and other statutes and common law beyond credulity.

[139] Each case must be determined on its own factual foundation. This appeal concerns uncontradicted facts which tend to support the Justice of the Peace's finding that the essential elements of the offence were established beyond a reasonable doubt.

[140] The appeal is therefore dismissed and the monetary penalty is confirmed.

Released: November 15, 2013

Original Signed By The Honourable Justice Nancy S. Kastner

Signed: "Justice N. S. Kastner"

Footnotes

[1] Exhibit 4 at trial is the ticket, letter and waybill.

[2] Mr. McGowan seemed to throw out case names, but did not make full argument on this point. He did submit a "Factum" which was prepared for another case and filed as an Exhibit.

[3] James Henry McGowan (Plaintiff), and City of Toronto and Toronto Police Services Board (Defendants), [2006] O.J. No. 5725 (S.C.J.).

[4] McGowan v. Toronto (City), [2008] O.J. No. 1471 (Div. Ct.), at paragraph 13.

[5] McGowan v. Toronto (City), 2010 ONCA 362, [2010] O.J. No. 2029 (C.A.), paragraphs 3 to 5.

[6] Those circumstances are "except when standing temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers": see s. 1(1) of Highway Traffic Act.

[7] Rex v. Cochrane, [1940] 2 D.L.R. 397.

[8] R. v. Abbashasheimi and Monize, [2005] O.J. No. 4950 (O.C.J.)

[9] Brain v. Crinnian, [1930] O.J. No. 35 (C.A.)

[10] At Para.12.

[11] Note the Sarnia by-law in place at that time included regulations for parking horses on the street. By-law 1510 s.10 read that no vehicle shall remain backed up to the curb except during actual loading and unloading from it and in such case no longer than the actual loading or unloading require. [emphasis added] Section 38 specified that the by-law "must be construed in conjunction with the Highways Traffic Act".

[12] R. v. Abbashasheimi and Monize, supra, at para.23 to 24.

[13] R. v. Kelly, [2010] O.J. No. 5443 (C.J.). See also R. v. Hickey, [2004] N.J. No. 333 (Nfld. Prov. Ct.)

[14] R. v. Duma, [2013] O.J. No. 2472 (C.J.)

[15] R. Sullivan, Driedger On the Construction of Statutes (3rd ed. 1994), at page 298.

[16] Ibid, at pages 297 to 316.

[17] Ibid. at page 310 to 311.

[18] Ibid. at page 312.

[19] Ibid.

[20] Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] S.C.J. No. 36, at para.64; and see Cuthbertson v. Rasouli, [2013] S.C.J. See also R. v. Kazemi, 2013 ONCA 585, [2013] O.J. No. 4300 (C.A.).

[21] Black's Law Dictionary, p.33.

[22] R. v. Salituro, [1991] 3 S.C.R. 654, at 678. See also Driedger, supra at 313 to 314.

[23] Driedger, supra at p.314.

[24] The waybill shows the delivery was to be made before noon, and he had the waybill signed at 12:25 p.m.

[25] See also R. v. Saragosa, [2008] O.J. No. 4848, 2008 CarswellOnt 7114 (S.C.), at para. 28, and R. v. Scarcello, [2004] O.J. No. 1002 (S.C.), esp. at paras. 10 and 17, and R. v. City of Toronto, 2011 ONCJ 131, [2011] O.J. No. 1293 (O.C.J.).