Court Information

Ontario Court of Justice Old City Hall, Toronto Region

Between: Her Majesty the Queen — and — Ektarina Agasiyants

Before: Justice S.R. Shamai

Ruling Released: March 13, 2015

Counsel:

• R. Raczkowski for the City of Toronto
• V. Manoukian for the Appellant, Ektarina Agasiyants

Decision

SHAMAI J:

Introduction

[1] Ms. Agasiyants appeals against the conviction entered in her absence, on the offence of Proceed Contrary to Sign at Intersection, contrary to Section 144(9) of the Highway Traffic Act. The conviction was registered at an Early Resolution Meeting on March 22, 2013. She was fined $85, which together with applicable surcharges, came to $110.

[2] Ms. Agasiyants complains that she had no notice of the Early Resolution Meeting, and never requested it. She does assert that she received a Certificate of Offence, alleging the improper turn from westbound Queen Street in Toronto to southbound University Avenue, on June 7, 2012, and filed her Notice of Intention to Appear on June 20, 2012. Toronto Court Services set at trial, in accordance with her stated wish, on December 13, 2013. She did not attend and was convicted in her absence that day. She filed an application for re-opening on January 23, 2013, which was granted on January 31, 2013. According to the form appended to the Affidavit as Exhibit 3, filed in support of the Appellant's position. The "Record of Re-Opening Application", the conviction was struck out, and the Clerk of the Court was directed to deliver an Early Resolution Meeting Notice to the Defendant. An Early Resolution Meeting was set for March 4, 2013, again by Toronto Court Services. It is my understanding that the re-opening is an ex parte administrative procedure, triggered by an application duly filed.

[3] In her Affidavit in support of her Notice Appeal, sworn May 4, 2013, Ms. Agasiyants asserts:

"I did not receive the early resolution meeting [sic] and did not ask for one."

[4] Curiously, a copy of the notice of Early Resolution Meeting, which is directed by the Justice of the Peace on the Re-Opening Application, is nowhere in the record. Nor, for that matter, is the Appellant's Application for re-opening.

[5] The legislation permitting an order for re-opening is found in Section 11 of the Provincial Offences Act (POA) R.S.O. 1990, c. P.33:

11. (1) A defendant who was convicted without a hearing may, within 15 days of becoming aware of the conviction, apply to a justice to strike out the conviction. 2009, c. 33, Sched. 4, s. 1 (16).

Striking out the conviction

(2) Upon application under subsection (1), a justice shall strike out a conviction if satisfied by affidavit of the defendant that, through no fault of the defendant, the defendant was unable to appear for a hearing or for a meeting under section 5.1 or the defendant did not receive delivery of a notice or document relating to the offence. 2009, c. 33, Sched. 4, s. 1 (16).

If conviction struck out

(3) If the justice strikes out the conviction, the justice shall,

(a) proceed under section 7, if the offence notice does not require the notice of intention to appear to be filed in person and the defendant wishes to proceed under that section;

(b) direct the clerk of the court to give notice to the defendant and the prosecutor of the time and place of their meeting under subsection 5.1 (3), if the offence notice requires the notice of intention to appear to be filed in person and the defendant wishes to proceed under that section; or

(c) direct the clerk of the court to give notice to the defendant and the prosecutor of the time and place of the trial. 2009, c. 33, Sched. 4, s. 1 (16).

Rescheduling time of trial

(4) The clerk of the court may, for administrative reasons, reschedule the time of the trial by giving a revised notice to the defendant and the prosecutor within 21 days of giving the notice referred to clause (3) (c). 2009, c. 33, Sched. 4, s. 1 (16).

Certificate

(5) A justice who strikes out a conviction under subsection (2) shall give the defendant a certificate of the fact in the prescribed form. 2009, c. 33, Sched. 4, s. 1 (16).

[6] Plainly, the legislation contemplates in Subsection (5) that the defendant should be advised of the successful disposition of the application. Section 11 does provide, in (3)(a) for an early resolution meeting to be scheduled, as a possible outcome of a re-opening application.

[7] The issue raised by the Appellant in this case turns on her complaint that although she did not request a meeting under Section 7 in her Application for Re-opening. Further, she asserts that she was not notified that one was in fact scheduled. The Certificate of Offence did in fact come before a Justice of the Peace in the guise of a proceeding under Section 5.1, an Early Resolution Meetings. With no one appearing, a conviction was registered. This is the conviction which Ms. Agasiyants seeks to have set aside on this appeal.

Preliminary Objection

[8] The Respondent raises a preliminary objection, that the issue raised by Ms. Agasiyants ought properly to be the subject of judicial review in the Superior Court, in an action launched under Section 140 of the Provincial Offences Act. He relies on the decision of the Superior Court per Morissette J, in the case of City of London v. Pavar, [2010] O.J. 2518. In that case, an order on a re-opening application was found to have been improperly brought before the Superior Court under Section 140. The Court opined that as the re-opening was improperly brought, it was in fact the conviction which ought to have been the subject of complaint, and that complaint should properly have been heard on an appeal under Section 135 of the Provincial Offences Act.

[9] That an issue of insufficient or failed jurisdiction might properly be litigated as a ground for appealing a conviction to this Court under the Provincial Offences Act is clearly and authoritatively stated by my colleague Libman, J in the case of R. v. Hilaire, [1999] O.J. No. 898.

[10] In this case, it is a conviction registered in an Early Resolution Meeting which is the subject of complaint. The recourse to appellate relief under Section 135 is not governed by the manner, or forum in which a conviction is registered, but only by the manner in which proceedings are commenced. In this case, proceedings were commenced by a Certificate of Offence under Part I. The appeal is properly before this court. Although the grounds may suggest that there was no jurisdiction in the Justice of the Peace on the Early Resolution Meeting to enter the conviction, the complaint comes down to one, commonly heard in the Provincial Appeals Court: that the Appellant had no notice of the proceeding in which she was convicted. Her complaint is exacerbated by her assertion that she never requested an early resolution meeting on her request for re-opening.

Analysis and Conclusion

[11] As I have noted, there is an absence of any evidence showing notice to the Appellant of the Early Resolution Meeting, directed by the Justice of the Peace on the Re-opening Application. As to Ms. Agasiyants' complaint that the Early Resolution Meeting was ordered despite her not requesting one, I have, equally, no proof of application for re-opening. She does assert that she never requested such a meeting, and I do not dismiss that as being no evidence. However, it seems to me to be immaterial to my final conclusion, that in the absence of notice as directed to the Appellant, of a proceeding which directly affected her rights, and given her assertion, uncontested, that she was unaware of the proceeding, I am of the view that the Re-opening was not properly constituted, and the conviction registered must be set aside.

[12] I am allowing the appeal and ordering a new trial.

Released: March 13, 2015

Signed: "Justice S.R. Shamai"