Court File and Parties

Ontario Court of Justice

Date: 2016-11-03

Court File No.: Regional Municipality of Durham 13-3400

Between:

The Corporation of the City of Oshawa

— and —

536813 Ontario Limited

Before: Justice of the Peace M. Coopersmith

Heard on: June 24, 2016

Reasons released on: November 3, 2016

Counsel

V. Sukdeo and R. Vanderlinde — for the prosecution

R. Fenn and A. Tomlinson — for the defendant 536813 Ontario Limited

JUSTICE OF THE PEACE COOPERSMITH:

Background and Charge

[1] The Corporation of the City of Oshawa had charged 536813 Ontario Limited with having committed an offence under clause 36(1)(c) of the Building Code Act 1992, S.O. 1992, c.23, as amended, for failing to have obtained a building permit to construct modifications made to a building on its property, as is required under subsection 8(1) of that Act. The offence date was October 7, 2013.

[2] The defendant corporation is owned by Philip Sciuk, who had purchased a hangar from the condominium corporation, Hangarminiums. After purchasing the hangar, Mr. Sciuk constructed an outdoor addition, specifically for the storage of a rotary-wing helicopter. Inside the hangar, he built a loft above the washroom which accesses an outdoor observation deck atop the outdoor addition. Mr. Sciuk did not deny that a building permit had not been obtained at the time of the offence. However, the defence claimed that the charge against it was unconstitutional, as the federal government, not the provinces, have exclusive jurisdiction over the field of aeronautics.

Constitutional Determination

[3] On May 19, 2016, after several days of trial, I determined that the Building Code Act, 1992 trenches on the protected core of federal competence as it applies to the defendant's hangar and, further, that section 8 of that Act unacceptably interferes with and has a considerable impact on the federal competency over aeronautics. With respect to this defendant before this Court, under the constitutional doctrine of interjurisdictional immunity, I determined that the provision of the Ontario Building Code Act, 1992 was invalid pursuant to s.52(1) of the Constitution Act, 1982. The City of Oshawa cannot rely on these building code provisions to require the defendant to obtain a building permit for construction to its hangar at the Oshawa Airport complex.

Costs Submissions

[4] Subsequently, I provided the defence with the opportunity to consider the feasibility of asking for costs. On June 24, 2016, I heard submissions from both parties as to whether this Court has jurisdiction to award costs in this matter and if such award is in order. I have carefully reviewed the submissions and materials provided by both parties. I find that I do have jurisdiction to award costs and a cost award in the circumstances of this case is appropriate for the reasons that follow.

I. THE ISSUES

[5] There are two issues to be determined:

1. Does this Provincial Offences Court have jurisdiction to order costs against the Prosecution?

2. If so, is such an order appropriate in the circumstances?

II. DOES THIS PROVINCIAL OFFENCES COURT HAVE JURISDICTION TO ORDER COSTS?

Jurisdiction as a Court of Competent Jurisdiction

[6] The issue is whether this is a court of competent jurisdiction such that I can order the City of Oshawa to pay costs to the defendant. In Mills v. The Queen, [1986] 1 S.C.R. 863, at page 890, the Court agreed when Lamer J. (as he then was) defined a "court of competent jurisdiction" as having (1) jurisdiction over the person, (2) jurisdiction over the subject matter, and (3) jurisdiction to grant the remedy.

(a) Jurisdiction over the person and jurisdiction over the subject matter

[7] There is no dispute that this Court has jurisdiction over the subject matter addressed by the Ontario Building Code Act, 1992. As well, there is jurisdiction over the defendant who was charged in the Provincial Offences Court, under the Ontario Building Code Act, 1992. Furthermore, in accordance with R. v. Canadian National Railway Co., [2012] O.J. No. 5649; 2012 ONSC 6620; 5 M.P.L.R. (5th) 277 (Ont. S.C.J.), it is within the jurisdiction of the Ontario Court of Justice, Provincial Offences Court, to hear and determine the constitutional applicability of a legislative provision. Hence, I am satisfied that I have jurisdiction over the subject matter.

(b) Jurisdiction to grant the remedy

[8] The disagreement between the parties, and the issue for me to determine, is whether I have jurisdiction to grant the remedy sought by the defendant, that being, payment of legal costs.

[9] Provincial Offences Courts are created by statute. Hence, unlike Superior Courts of Justice, Justices of the Peace have no inherent jurisdiction, for example, to consider prerogative writs. Nor is there jurisdiction to strike down or read down legislation as unconstitutional.

(i) Jurisdiction to order costs for a Charter violation

[10] On more than one occasion, the Supreme Court of Canada has spoken regarding jurisdiction of the Ontario Court of Justice to award costs in criminal and quasi-criminal proceedings. In R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, the defendant sought costs in the Provincial Offences Court for the Charter motion it successfully brought against the Crown for, amongst other things, the latter's refusal to disclose a form that was relevant to the matter. The issue decided by the Supreme Court of Canada was whether the Justice of the Peace presiding at the trial in the Provincial Offences Court had the power to order legal costs against the Crown for a Charter violation.

[11] At paragraph 70, McLachlin C.J., writing for the Court, states:

It is well established that a statutory body enjoys not only the powers expressly conferred upon it, but also by implication all powers that are reasonably necessary to accomplish its mandate: Halsbury Laws of England (4th ed. 1995), vol. 44(1), at para 11335. In other words, the powers of a statutory court or tribunal extend beyond the express language of its enabling legislation to the powers necessary to perform its intended functions: Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1772.

[12] Provincial Offences Courts function to try provincial offences. These are quasi-criminal courts that determine guilt and innocence and impose penalties commensurate with those found in criminal courts. As found in Mills, supra, statutory courts, including Provincial Offences Courts, function as the front line and preferred forum for dispensing Charter remedies in cases originating before them, while the superior courts occupy "a complete and concurrent, but primarily residual role in proceedings not originating before them." [974649 Ontario Inc., at para.79].

[13] The Superior Court of Justice has the inherent ability to award costs. Requiring a defendant facing a charge in the Provincial Offences Courts, to bring a separate Charter action in the Superior Court of Justice, brings added delays and expenses to the defendant and has the undesirable potential to deny the defendant access to a remedy in a court of competent jurisdiction.

[14] In light of the legislature giving the Provincial Court functions that may attract Charter issues, it would appear reasonable that the legislature intended this Court to deal with these incidental issues by virtue of its function and structure. The Court in 974649 Ontario Inc., supra, concludes that the Provincial Offences Court "enjoys the necessary power to grant the remedy sought in the present case [to award costs against the Crown for a Charter violation], and is thus a "court of competent jurisdiction" within the meaning of s. 24(1) of the Charter.

(ii) Jurisdiction to order costs for other than Charter violations

[15] Although it has been clearly determined that this Provincial Offences Court has jurisdiction to award costs against the Crown in appropriate Charter violation cases, I must now determine whether the scope of such jurisdiction extends beyond Charter matters.

[16] As stated above in 974649 Ontario Inc., supra, at para. 70, as a statutory court of law, the Provincial Offences Court basically does not possess any inherent jurisdiction, other than what is derived from statute. This Court has the powers expressed conferred upon it and, by implication, any powers reasonably necessary to accomplish its mandate. Jurisprudence has clearly recognized that statutory courts possess certain implied powers as courts of law, so as to allow them to maintain the rule of law and the integrity of the court.

[17] In the Provincial Criminal Courts, the power to award costs against the Crown extends beyond the breach of Charter rights. In R. v. Fercan Developments Inc., 2016 ONCA 269, LaForme J.A., writing for the Court of Appeal, determined that a provincial court hearing an application for forfeiture under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ["CDSA"] has an implied power to award costs in appropriate circumstances. Three reasons led the Court to that conclusion:

1. The power to award costs is derived from the authority, possessed by every court of law, to control its own process;

2. The breadth of a provincial court's mandate under the CDSA suggests that it has an implied power to award costs; and

3. Given the statutory context in which the provincial court hears forfeiture applications, this implied power is reasonably necessary for it to discharge its mandate in a fair and efficient manner.

[18] These three reasons guide me in my determination of whether this Provincial Offences Court has an implied power to award costs in the matter before me. I have already addressed the first reason, as the jurisprudence clearly establishes that the Provincial Offences Court has the authority to control its own process.

[19] Next, I am satisfied that the mandate of the Provincial Offences Court extends to determining the constitutional applicability of a legislative provision [R. v. Canadian National Railway Co., supra]. In Fercan Developments Inc., supra, the forfeiture application could have been heard in either the Ontario Court of Justice or the Superior Court of Justice. Here, too, the constitutional application could have been heard either in this Court or in the Superior Court of Justice. In fact, the defendant commenced such an application in which it requested that that Court read down the provisions of the Building Code Act, 1992, so as to not apply to the defendant's property, which falls under the exclusive federal powers over aeronautics. Although the two courts do not function exactly the same in respect of the remedy that would flow from a successful constitutional challenge, both proceedings are based on the constitutional doctrine of interjurisdictional immunity and, in either court, the practical outcome for this defendant would be identical.

[20] Moreover, in light of the Superior Court's power to award costs, depriving the Provincial Offences Court of that same power is undesirable. A contest as to which court the constitutional challenge should be brought would frustrate the legislatively established structure of the courts system. This is not what Parliament or the legislature could have intended. Yet without the power to award costs in cases such as this, the defendant would be deprived of the ability to obtain costs where it otherwise would be entitled to them in Superior Court. And forcing the defendant to bring a separate application in Superior Court for a proceeding heard in the Provincial Offences Court would necessitate re-litigation of a significant portion of the defendant's case. Analogous to such duplication for Charter motions, this carries with it added delays and expenses, which, in effect, could deny the defendant access to a remedy in a court of competent jurisdiction. Such bifurcation is neither desirable nor an efficient way for our courts to operate. The jurisdiction to award costs is necessary for any court of law to control its processes and maintain the integrity of the courts processes and public confidence in the administration of justice.

[21] Finally, the broad jurisdiction to consider constitutional questions is also contemplated in s.109 of the Courts of Justice Act, R.S.O. 1990, c. C.43:

109. (1) Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:

110. The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.

111. A remedy is claimed under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.

(6) This section applies to proceedings before boards and tribunals as well as to court proceedings.

[22] There is no principled reason to have jurisdiction to award costs for a Charter breach, but not following a ruling on a constitutional question.

[23] The ability to award costs as a sanction responsive to the unacceptable standard of prosecution, is inherent jurisdiction of any court of law to control its own process, is reasonably necessary given Provincial Courts' mandate to decide constitutional issues and in order for this Court to discharge its mandate. For all of these reasons, I find that this Provincial Offences Court has jurisdiction to award costs in the constitutional challenge that is before me.

III. IS AN ORDER AGAINST THE PROSECUTION APPROPRIATE IN THIS MATTER?

Standard for Costs Award

[24] The authority of Provincial Offences Courts to exercise control over its trial process and award costs against the Crown is not appropriate in all violations, but only those in which the Crown conduct demonstrates a marked departure from the norms expected. Such cost awards are not meant to compensate the defendant, so much as to discipline the Crown and signify the Court's disapproval of the Crown's flagrant and unjustified behaviour in breaching the defendant's rights.

[25] In determining what behaviour may attract such an award, I am guided by the factors identified in R. v. Jedynack, [1994] O.J. No. 29 (Ont. Gen. Div.), subsequently approved by the Supreme Court of Canada in 974649 Ontario Inc., supra. In Jedynack, supra, Goodearle J. described the circumstances in which a cost award is appropriate, writing at paragraphs 36 and 37:

In the meantime it would be my view that such an order should only be made in circumstances where:

1. The acts, or failures to act, collectively amount to something well beyond inadvertent or careless failure to discharge a duty;

2. Rather the conduct would have to fall within the realm of recklessness, conscious indifference to duty, or whether conscious or otherwise, a marked and unacceptable departure from usual and reasonable standards of prosecution;

3. Such conduct must be seen to have resulted in an indisputable and clearly measurable infringement or denial of a right;

4. Where the costs order is intended to ensure compliance with an order or show disapproval for conduct which resulted in serious prejudice to the accused it should, as well, be founded in circumstances of clear and obvious compensatory need.

Nothing even close to a standard of perfection should be imposed on prosecutors who, in this day and age, are overburdened with work and, as was the case here, often largely dependent upon outside resources over which they have little daily control in the development of their cases, which many times impact on the discharge or the manner in which they are able to discharge their duties.

[26] The background and findings in the matter before me are provided in my judgment released May 19, 2016 [Oshawa (City) v. 536813 Ontario Limited, 2016 ONCJ 287, [2016] O.J. No. 2595]. I have relied on the relevant circumstances from that judgment and the cost submissions of the parties to determining whether costs against the Prosecution are appropriate in these circumstances.

Analysis of Prosecution Conduct

(a) City of Oshawa as Prosecutor

[27] In the introduction in Fercan Development Inc., supra, LaForme J.A., writing for the Ontario Court of Appeal, states:

The Crown is no ordinary litigant. It has the power to enforce legislation like the forfeiture provisions of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "CDSA"), underlying this appeal. In addition, the Crown has discretion to decide whether or not to exercise these powers. This discretion is generally impervious to review and is derived from the Crown's independence. However, where the Crown fails to exercise its discretion in a fair and objective manner, corrective action may be necessary to protect the integrity of the criminal justice system: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at paras. 42-49.

[28] I accept the defendant's submissions that the City of Oshawa is not an "ordinary litigant" in these matters. The Province has provided the City with the power to enforce provisions of the Building Code Act, 1992. This Act binds the City with the requirement to enforce these legislative provisions for the sake of public safety and in the public interest. Its power to prosecute constitutes a mechanism available to it to bring about compliance. This duty to litigate provides strong policy reasons not to award costs against the Prosecution [See e.g. [R. v. Nayanookeesic, [2005] 3 C.N.L.R. 257 (Ont. S.C.J.)]](https://www.canlii.org/en/on/onsc/doc/2005/2005canlii19782/2005canlii19782.html).

[29] In the matter before me, however, the Prosecutor is not a Crown, but rather an employee and agent of the City of Oshawa, which stood to gain materially. It has more at stake than prosecuting in the public interest. In the future, the City intends to bring further development to other parts of the Oshawa Airport lands and the City's demand for building permits brings with it revenues for the City. The City stands to profit from such development, not just for the sale of the land, but also from building permits it claims developers will need. It is incumbent upon the City to take care in exercising its discretion to charge a party under the Building Code Act, 1992 and must be very diligent to ensure it exercises its prosecutorial powers fairly, impartially and in the public interest. The standard of measure in discharging discretion of whether to prosecute a matter is a factor I have taken into consideration in deciding whether costs will be awarded.

(b) Prosecution witnesses are City employees

[30] Not only is the Prosecutor an employee of the City of Oshawa, but so, too, are all of its witnesses. The City of Oshawa, as Prosecutor, proffered no independent witnesses. From the evasive and sometime contradicting manner in which these witnesses answered questions asked by defence counsel, it is obvious that a bias in favour of their employer exists.

[31] Mr. Cook has been a Building Inspector with the City of Oshawa for over twelve years. In providing testimony, I found him to be evasive and he occasionally contradicted himself, if it was self-serving to do so. When questioned by the City's legal counsel, the Prosecutor in these proceedings, he most often did not hesitate to respond. When questioned by the defendant's counsel, he often appeared to lack knowledge of what might easily be perceived as basic comprehension of issues.

[32] Mr. Stephen Wilcox, as the Oshawa Airport Manager, is also an employee of the prosecuting City of Oshawa. Repeatedly in his responses, he attempted to avoid stating whether the Hangarminium project, which included the defendant's hangar, was a part of the Oshawa Airport. In spite of his participation in developing the Airport Business Plan, which made clear representations of the Hangarminiums as a positive marketing addition to this Plan, he tried to side step the issue of whether this development was part of the Oshawa Airport complex. As Airport Manager, he is required by Transport Canada to prepare and submit an Airport Operations Manual accurately describing the runways and buildings. In spite of showing the Hangarminium development in the aerodrome diagrams, he tried to get around accepting that the defendant's hangar was part of the Oshawa Airport complex.

[33] In response to Mr. Sciuk's initial inquiries about purchasing some of the lands in the northern section of the Oshawa Airport upon which to build his own hangar, in a January 30, 2008 letter, Mr. Wilcox was anything but reluctant to advise Mr. Sciuk of the need to retain aviation or aviation related uses. Yet at trial, Mr. Wilcox attempted to dodge questions pertaining to "use". Instead he repeated advised that, as Airport Manager, his mandate relates only to the operations and safe functioning of the Airport.

[34] Mr. Wilcox presented with significant credentials in the field of aeronautics; however, his evasive responses or inability to respond to some of the questions asked by defence counsel was, at time, at odds with his credentials. It was only after aggressive questioning by defence counsel that Mr. Wilcox reluctantly admitted that the Hangarminium development, including the defendant's property, might be considered germane to the field of aeronautics and perhaps a component of the Oshawa Airport complex. In the end, the Airport Manager did accept that the federal government had not surrendered its rights to permit only aviation or aviation-related uses on these surplus lands.

[35] I have cited many instances wherein the City of Oshawa's witnesses were evasive, contradicted themselves and were less than forthcoming with knowledge individuals with their experience and credentials should have known. I agree with the defence submissions that the credibility of the City's witnesses, all of whom are City employees, was seriously undermined by their inability or reluctance to answer simple questions put to them by defence counsel. This conduct was a patent contrast to and exhibited an obvious bias towards their readiness to answer questions asked by their employer, the City of Oshawa.

(c) City of Oshawa showcasing Hangarminiums as part of Oshawa Airport

[36] The City of Oshawa steadfastly claimed that the defendant's hangar is not part of the Oshawa Airport, while simultaneously showcasing and exploiting the Hangarminium development as just that for self-serving marketing, operational, zoning and regulatory purposes. Indeed, starting at paragraph 48 of my May 19, 2016 judgment I wrote:

Contrast this inclusion in City publications of the Hangarminiums development, within which the defendant's hangar is situated, with the City's attempt to portray the defendant simply as a private property owner. The prosecutor's submission on this point has no evidentiary basis. Indeed, all of the evidence before me indicates the opposite -- namely, that the City of Oshawa continues to embrace and characterize the Hangarminiums buildings as part of the Oshawa Airport on a:

• promotional basis -- for example, in the Oshawa Airport Business Plan and the Good News Reports;

• legal basis -- for example, no amendments requested to the airport certificate issued by the federal government in December 6, 2005; not submitting amendments to Airport boundaries under CARs, e.g. in the Airport Operations Manual; fits Oshawa's own Zoning By-law definition of "airport"; and admission by Oshawa's Airport Manager that the Hangarminiums are part of the aerodrome over which the federal government retains jurisdiction); and

• operational basis -- for example, Airport Manager controls entry access; area is secured within Airport boundary fence; Airport Manager ensures safe operation of the Airport and of the movement of aircraft.

I find the City of Oshawa cannot use the hangar for its self-serving purposes and then have its prosecutor attempt to exclude the hangar from the airport complex when it may find it does not serve the City well.

[37] Holding these lands out as being part of the Oshawa Airport in order to develop, market and manage the lands, but refusing to do so in these proceedings is not making decisions or prosecuting fairly, impartially or in the public interest.

[38] These were not the only far-fetched submissions in the City of Oshawa's attempt to make its self-serving case in the proceedings against the defendant. With full knowledge that Mr. Sciuk often spends long hours working on his aircrafts in his hangar, the Prosecution submitted that, because he lives in relatively close proximity to the Airport, he does not need the lounge above the washroom in which to do flight-related paperwork, to rest or to find some nourishment, as he can do these activities at home. These comments contradicted the City's own witness, Mr. Wilcox, who accepted that an office and lounge with a kitchenette were normal attributes of any pilot's lounge. Using whatever it could to make its case, the City of Oshawa led this illogical proposition that a person's place of residence is a determinative factor to consider what is or is not 'core' to the field of aeronautics.

(d) The Hangarminium development and building permits

[39] In 2008, the City of Oshawa decided that some of the lands of the Oshawa Airport could be developed for aeronautical purposes. One of the witnesses for the defendant before this Court was Mr. Hannu Halminen. His company purchased the surplus lands from the City and built Hangarminiums. It was his understanding that no building permit was required because of federal jurisdiction over aeronautics matters. In the beginning, no building permit was required, despite the City of Oshawa being well aware of the major construction project unfolding on these lands. In fact, Mr. Halminen built the first twenty-seven of the hangar units without any building permits. It was only when the developer attempted to register the development as a condominium that the City demanded that a permit be obtained at a cost of $185,272.49. The City had placed Mr. Halminen in a significantly disadvantaged and untenable position, as he had too much invested in the development at this stage and, at that most inopportune time, he was left with no choice but to comply with the City's demand if he wished to complete the project.

[40] In the judgment that I rendered on May 19, 2016, I cited the fact that the City used the argument that since the Hangarminiums were constructed under a building permit, hence any renovations to any of the hangars require a building permit. I refused to accept that because Mr. Halminen did not challenge the constitutionality of the building permit, such inaction is determinative of the constitutional doctrine of interjurisdictional immunity. His reasons for proceeding as he did had nothing whatsoever to do with this constitutional issue. Yet the City of Oshawa strained logic when it tried to use this against Mr. Sciuk, as owner of the defendant corporation.

[41] Also, the City of Oshawa was well aware that the Regional Municipality of Durham had determined that the Ontario Development Charges Act, 1997, S.O. 1997, c.27 was not applicable here. The Region refunded development charges of $101,952.55 after it determined that the lands and the Hangarminium development were under exclusive federal jurisdiction because of their aeronautical use. Nonetheless, the City of Oshawa refused to acknowledge such determination and insisted that the developer pay the substantial amount of $185,272.49 for the building permit.

(e) City's failure to produce Airport Operations Manual

[42] It also became clear that the Prosecutor, the City of Oshawa which owns and operates the Oshawa Airport, should have had in its possession the version of the Airport Operations Manual that was in effect on the alleged offence date. This document constituted disclosure relevant to the defendant's case, which the City was obliged, under Stinchcombe, to disclose. The City failed to produce this document, claiming it was not relevant to the City's case and the Defendant could request this document through an Access to Information application. This Manual is not a third party document, but belongs to the City. In the circumstances, the City's conduct in failing to produce it is unacceptable.

(f) Building permit part of privileged resolution discussions

[43] As I stated in my May 19, 2016 judgement, I rejected the City's submissions that the defendant attorned or acceded to the City's jurisdiction over the requirement for building permits when Mr. Sciuk obtained one in an attempt to resolve this matter. Privilege attaches to such negotiations and the City's attempts to use these resolution discussions as evidence against the defendant at trial are most inappropriate.

(g) Jurisprudence clearly gives broad and exclusive jurisdiction over aeronautics to the federal government

[44] The Prosecutors refused to accept the jurisprudence that clearly shows the historical, broad and exclusive jurisdiction the federal government has over the field of aeronautics. Binnie and LeBel JJ., on behalf of the majority in Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, write, at para. 77:

As we have already noted, interjurisdictional immunity is of limited application and should in general be reserved for situations already covered by precedent.

[45] The continuing application of the federal government's historical and exclusive jurisdiction over aeronautics is reinforced by Smith J.A. in Vancouver International Airport Authority v. British Columbia (Attorney General) (2011), 2011 BCCA 89, 331 D.L.R. (4th) 737 (C.A.) at para.47:

Although now consigned to a more limited role than was previously enjoyed, interjurisdictional immunity continues to provide guidance in those circumstances where the jurisprudence historically has dictated its application (CWB at para.77). The subject matter of aeronautics and federal undertakings for the operation and management of airports provide one such example.

[46] I accept that no new categories for interjurisdictional immunity should be created, but aeronautics has been and continues to be a sacrosanct federal sphere of jurisdiction. I am confounded by the City of Oshawa's steadfast refusal to accept this jurisprudence. The Prosecutor's submissions were not always logical or relevant, and on more than one occasion wandered out of the realm of the doctrine of interjurisdictional immunity into that of paramountcy – a doctrine that the defence explicitly and repeatedly indicated it was not proffering.

[47] I accept the defence submissions that there is "a large volume of case law dealing specifically with the issues at hand, namely the jurisdictional inapplicability of Provincial building codes over airports which, had the prosecutor understood or chosen to heed, would have shown the Prosecution that their case was doomed to failure from the onset." It is incumbent upon the City to make decisions and to prosecute in the public interest. However, the jurisprudence on the doctrine of interjurisdictional immunity applying to aeronautics and airport-related buildings is clear and shows that provincial building codes did not apply in the past and continue to not apply.

IV. CONCLUSIONS

[48] For the reasons provided, I find that I have jurisdiction to order costs against the Prosecution in this matter.

[49] As in Fercan Developments Inc., supra, the City of Oshawa, as Prosecutor, proceeded with tunnel vision in its attempts to get a self-serving court ruling. In its attempt to pull the foundation out from the defendant's constitutional challenge and despite the wealth of evidence to the contrary, the City tenaciously maintained the untenable position that the Hangarminium development, the defendant's hangar and the modifications made to it were not a part of the Oshawa Airport complex and, hence, could not be aeronautically related. The Prosecution's position lacks evidentiary basis as the City of Oshawa embraces the Hangarminium buildings as part of the Oshawa Airport on its own self-serving promotional, legal and operational basis.

[50] The Prosecution refused to accept the clear jurisprudence giving the federal government exclusive jurisdiction over the field of aeronautics under the constitutional doctrine of interjurisdictional immunity, as determined in my judgment and briefly discussed above. Its witnesses revealed their bias in favour of their employer, the City of Oshawa, by the manner in which they conducted themselves in the trial. Also at trial, the Prosecution inappropriately attempted to use privileged resolution negotiations against the defendant. When the City of Oshawa is the Prosecutor, its Airport Operations Manuals are not third party documents and are subject to disclosure in accordance with Stinchcombe. It was wrong for the City to tell the defendant to request the relevant Manual via a freedom of information request. Such behaviours certainly do not meet the standard of a prosecutor who conducts itself fairly, impartially and in the interest of the public.

[51] While the City of Oshawa has an obligation to prosecute in the public interest, in this case the broad public interest appears to be overtaken by the City's own self-serving interests. All of the City's acts, as described above, collectively amount to something well beyond inadvertent or careless failure by the City of Oshawa to discharge its prosecutorial duties in a fair and objective fashion in serving the best interests of the public. Instead, it has exhibited a flagrant or marked departure from usual and reasonable standards of prosecution. Clearly such conduct targeted the defendant's constitutional rights.

[52] In the circumstances before me, I find an order for reasonable costs against the City of Oshawa is appropriate.

Released: November 3, 2016

Signed: "Justice of the Peace M. Coopersmith"