Court File and Parties

Ontario Court of Justice

Date: 2019-04-04

Court File No.: 3160 999 18 5246 00

In the Matter of: An appeal under section 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen Respondent

— and —

Jagvir Khela Applicant

Before: Justice M.M. Rahman

Application Heard: March 29, 2018

Reasons for Ruling Released: April 4, 2019

Counsel:

• Colleen Grant, for the respondent
• Alexei Zaitsev, for the applicant

RAHMAN J.:

1 Overview

[1] The applicant, Jagvir Khela, is appealing an order under the Dog Owner's Liability Act requiring that his dog be destroyed. The applicant turned over his dog on February 14, 2019, the day the order was made. The dog has been with Brampton Animal Services since then. On March 1, 2019, this court made an order staying the destruction order pending the disposition of the appeal.

[2] The applicant now applies for his dog to be returned into his custody pending the hearing of the appeal, subject to various terms that will ensure that the dog stays within his property.

[3] The respondent opposes the application, arguing that there is no basis to make the order and that it is not in the interests of justice.

[4] At the outset of the argument, I raised the question of jurisdiction and asked Mr. Zaitsev what jurisdiction this court had to make the order returning the dog. Mr. Zaitsev said he was relying on s. 125 of the Provincial Offences Act (POA), the same section he purported to rely on to obtain the stay of the destruction order on March 1, 2019.

[5] I dismissed the application with written reasons to follow. These reasons explain why I conclude that the court has no jurisdiction to grant the order to return the dog.

2 Analysis

[6] This court's powers are statutory. That includes the powers that it exercises on appeals. Because the order being appealed was made in proceedings under Part IX of the POA, this appeal is considered an appeal of a Part III proceeding. This court's appeal powers for Part III proceedings are set out in ss. 117 to 129 of the POA.

[7] As mentioned above, the applicant relies on s. 125 of the POA as this court's authority to make the order releasing his dog. That section does not create any independent powers. Rather, that section gives the court the power to make any order "in addition" to any order the court makes when exercising "any of the powers conferred by ss. 117 to 124." None of those sections address the type of order being sought in this case. None of those sections even deals with staying an order of any sort pending an appeal, or exercising any power analogous to a stay.

[8] The applicant further argued that, if this court has jurisdiction to stay the destruction order, it should similarly have jurisdiction to order the dog's release pending the appeal.

[9] In addition to its statutory powers, this court has a limited, ancillary jurisdiction to make orders that would prevent the frustration of appeals. The Court of Appeal – also a statutory appeal court – recognized this ancillary jurisdiction in R. v. Church of Scientology. In that case, a motion judge terminated a sealing order on documents that the appellants had argued were privileged. The Court of Appeal held that it had the power to stay the motion judge's order because allowing the documents to be unsealed would frustrate the purpose of the appeal.

[10] Because the destruction order is the very order being appealed, it makes sense that this court must have the power to stay that order. If it did not, the appeal would be frustrated because it would be rendered moot. The same cannot be said about an order to return the dog to the applicant's custody. The appeal of the destruction order will not be frustrated if the dog remains with Brampton Animal Services.

[11] Therefore, I cannot find that this court has the power to make the order to return the dog pending the appeal. Given this conclusion, I make no comments about whether the application otherwise has merit.

[12] The application is dismissed.

Released: April 4, 2019

Justice M.M. Rahman

Footnotes

[1] R. v. Sztuke (1993), 16 O.R. (3d) 559 (C.A.) at para. 6.

[2] I should note that, although the applicant purported to rely on s. 125 as the basis for the court's jurisdiction to grant the stay of the destruction order, it is not clear to me from my colleague's endorsement that s. 125 was the basis for the exercise of that jurisdiction.

[3] R. v. Church of Scientology (1986), 13 O.A.C. 17 (C.A.).