Reasons for Judgment

ONTARIO COURT OF JUSTICE

DATE: 2022 12 01

BETWEEN:

TORONTO (CITY) (Respondent)

— AND —

BARON ALLOWAY (Appellant)

Before: Justice V. Rondinelli

Reasons for Judgment released on December 1, 2022

Counsel: J. Davie, for the Appellant P. McMahon, for the Respondent

Rondinelli J.:

[1] The Appellant received two Highway Traffic Act tickets on February 21st, 2020. The Appellant requested a trial for both infractions and received a Notice of Trial by mail indicating a trial date of June 3rd, 2020. That trial date was administratively adjourned due to the pandemic. A Revised Notice of Trial was mailed to the Appellant on September 29th, 2021, indicating a trial date of November 17th, 2021. The Appellant did not attend on that trial date and he was deemed not to dispute both charges.

[2] The Appellant appeals to this court claiming that the reason he did not appear at his trial is because he never received the Revised Notice of Trial in the mail.

[3] Section 87(2) of the Provincial Offences Act (“POA”) states:

Rebuttable presumption, mail delivery

(2) If a notice or document that is to be given or delivered to a person under this Act is mailed to the person at the person’s last known address appearing on the records of the court in the proceeding, there is a rebuttable presumption that the notice or document is given or delivered to the person.

[4] By operation of this section, where there is proof that a Notice of Trial was mailed out to a defendant’s last known address, a rebuttable presumption is established that the defendant received the notice. As a presumption of law, a defendant will have the burden of rebutting the presumption on a balance of probabilities: See R. v. Proudlock.

[5] It should be noted that s. 87(2) speaks of ordinary mail and not registered mail, which would provide greater proof of delivery. In dealing with ordinary mail, it would not be a stretch to take judicial notice that Canada Post is not a perfect delivery service. Many issues may arise that would prevent a letter from being delivered to the intended addressee. Section 87(2) of the POA provides relief for such lapses but places an evidentiary burden on a defendant to rebut the presumption of receipt.

[6] The issue of non-receipt of a Notice of Trial is a common claim dealt with by this court. Many times, a defendant appeals on the basis of a mere denial of receiving the Notice of Trial. Despite its conclusory nature, I see no reason why such a denial, if believed on a balance of probabilities, should not be sufficient to displace the presumption. In my view, what else is a defendant – who in fact did not receive the notice in the mail – expected to say other than, “I never received it”? Such a denial may gain further strength if made under oath or affirmation. However, such a denial need not always be believed. Cross-examination of a defendant may serve to impeach or discredit a defendant’s testimony that they never received the notice in the mail.

[7] In this appeal, there is no dispute that a Revised Notice of Trial was mailed to the Appellant. The Appellant tendered an affidavit and testified at the hearing of the appeal. In both the affidavit and his testimony, the Appellant remained unequivocal that he did not receive the Revised Notice of Trial. Despite being cross-examined by the prosecutor, this evidence remained uncontradicted.

[8] In addition, the Appellant indicated that he has lived at the same address for a number of years and while he received the original Notice of Trial and a Notice of Fine and Suspension in the mail, he did not receive the Revised Notice of Trial. I have no basis to disbelieve the Appellant on any of his evidence.

[9] In light of this evidence, I am satisfied that the presumption under s. 87(2) has been rebutted. The appeal is allowed and a new trial ordered.

Released: December 1, 2022 Signed: Justice V. Rondinelli