DATE: April 3, 2023
IN THE MATTER OF CHAPTER 591 (NOISE) OF THE CITY OF TORONTO
Between
HIS MAJESTY THE KING Ex. Rel. CITY OF TORONTO Prosecutor
-and-
ANDREA MORALES Defendant
ONTARIO COURT OF JUSTICE (Toronto Region)
BEFORE HIS WORSHIP MOHAMMED BRIHMI
REASONS FOR JUDGMENT
Trial dates: August 19, November 15, 2022; January 11 and 26, 2023 Judgment rendered: April 3, 2023
Counsel: Ross, Prosecutor on behalf of the City of Toronto S. Brown, Agent on behalf of the Defendant Andrea Morales
1. INTRODUCTION
[1] The matter before the Court involves two neighbours who live beside each other at 1250 Brimley Road in Unit #71, and Unit #72 respectively. Along with the current allegation, they have other matters involving claims and counterclaims at the Ontario Superior Court of Justice’s, Small Claims Court.
2. THE WITNESSES AND EXHIBITS
[2] Today is a continuation of the trial of the defendant, Andrea Morales, which took place over six days. The Court heard evidence from the prosecution’s two witnesses, Marcia Szabo and James Slocum.
[3] Furthermore, I heard from the defendant and her witness Dale Major Wareham. Ms. Morales was represented throughout this trial by her agent, Simon M. Brown.
[4] The Court was presented with 17 exhibits, which were entered into the trial proper for the Court’s consideration as evidence.
[5] The Court notes that some of the exhibits are duplicate as they were entered by both the Prosecution and by the Defence. For instance, the email assigned as exhibit 16 was also entered as part of exhibit 5 involving the emails of Ms. Szabo.
[6] Others involve the court proceedings at the Small Claim Court. As I have indicated during the trial, I will give the appropriate weight to those exhibits in my decision.
[7] During this trial, the Court made decisions on seven motions and applications from the defence. They include the 11 (b) Charter Motion, the “O’Connor Application”, the Issue of Estoppel, the Settlement privilege, the Impeachment, the Motion of Non-Suit, and on the final day of trial, I was asked to address the Abuse of Process Application.
[8] I have heard closing arguments from both parties and this matter is before the Court today for judgment.
3. THE CHARGE
[9] The defendant, Andrea Morales, appears before the court charged with committing the following offence: that between March 23, 2018, and September 13, 2018, at 1250 Brimley Road, Unit 71 in the City of Toronto did commit the offence of make, cause or permit noise or vibration, which is likely to disturb the quiet, peace, rest, enjoyment, comfort or convenience of the inhabitants of the City, contrary to Chapter 591 of the City of Toronto, Municipal Code (as amended) Section 591-2.
4. THE ONUS AND BURDEN OF PROOF
[10] The court is satisfied that this regulatory offence is not an absolute liability offence or a mens rea offence. It meets the requirements of a strict liability offence.
[11] Therefore, this offence places the onus on the prosecution to prove its case beyond a reasonable doubt. It also opens the opportunity to the defendant to present a defence and avoid liability if the Court is satisfied, on a balance of probabilities, that the defendant acted with due diligence and took all reasonable care in all the circumstances.
[12] A defence will also be available if the defendant reasonably believed in a mistaken set of facts which, if true, would render the act or its omission innocent.
5. THE EVIDENCE OF THE PROSECUTION’S WITNESSES
The Court heard from the prosecution’s two witnesses. The first witness is the complainant, Marcia Szabo. Her testimony could be encapsulated as follows:
[13] Ms. Szabo testified that she resides at 1250 Brimley Road, Unit 72 in the City of Toronto with her 12 years-old daughter in March 2018. She had lived in the Co-op for 13 years and that Andrea Morales lives at Unit 71. She also described to the Court that the Brimell Court Co-op has a row of five attached townhouses from Unit 69 on one end to unit 73 on the other end.
[14] Furthermore, Ms. Szabo testified she started documenting the consistent noise coming from unit 71 and had filed few complaints beginning in March 2018. In addition, she told the Court how loud music, banging, screaming, people running up and down the stairs very late at night into the early hours of the morning were pronounced in her daughter’s room and was disturbing to both her and her daughter.
[15] In addition, Ms. Szabo testified that she created a document on her kitchen calendar called “City Noise Complaint”. Every time there was a noise, she would describe the type of noise, the time, and noted the date of when it began and ended. She would do so as it was happening or on the next day.
[16] Furthermore, Ms. Szabo testified about the log entered as exhibit 2 starting with the first entry of March 24, 2018. She described the noise as running up and down the stairs, screaming, slamming doors and music that started from 12:00 o’clock at night until about 2:30 in the morning which prevented her and her daughter from sleeping.
[17] Ms. Szabo believed the origin of the noise is the wall adjacent to Ms. Morales’s home at unit 71 because it was very loud in her daughter’s room. In addition, she told the Court that the noise could not come from anywhere else but from Unit 71 and that she could hear the noise even from her bedroom which is adjacent to Unit 73.
[18] She told the Court the next entries in the log involve a bad week on March 25th, 26th, 27th, 28th and April 2nd. During these days, she testified there was a lot of noise, screaming, banging and being kept awake every night usually after midnight until about 3:30 O’clock in the morning. In addition, she described the noise as similar to the previous running up and down the stairs, screaming, banging, the slamming of doors and music that was disturbing her and her daughter.
[19] In addition, Ms. Szabo testified about other entries for March 27th and the 29th as well as March 30th and 31st involving the same kind of noise late at night at times lasting until five o’clock in the morning. She said the disturbance made it difficult for her and her daughter to function the next day at work and school because of the lack of sleep. Ms. Szabo said her daughter was not doing well at school because she was so tired, and it impacted her performance at her job.
[20] Ms. Szabo told the Court she sent an email to Frank Mielewczyk, a by-law officer with the City of Toronto providing him with additional materials about the noise that was not reported previously into the City Log.
[21] In regard to the log entry for the month of June, she testified that the noise starts after 12:00 at night until about 4:00 in the morning and that she experienced this noise and logged it three times. Ms. Szabo told the Court she has about six entries for July, among them one on July 4 and another one on July 10th with the same kind of noise, screaming, slamming the doors, running up and down the stairs, music for the whole night keeping her and her daughter awake.
[22] For the logs in the month of August, Ms. Szabo told the Court about two in the email that was sent to Mr. Mielewczyk and another one listed in the City of Toronto log, with the same kind of noise that was disrupting her and her and her daughter’s sleep. She testified about two other logs in September.
[23] Furthermore, Ms. Szabo testified that she knocked at the door of Ms. Morales on one or two occasions about the nighttime noise. She said she once knocked at the door at 2:30 in the morning and spoke to two young girls in their twenties who were staying at Ms. Morales home. Ms. Szabo said their reaction was negative.
[24] Ms. Szabo testified she called the police about the noise coming from Unit 71 on March 25th, April 25th and 27th, as well as on August 11th, 2018, which involved, among others, screaming, banging, yelling in the middle of the night. Again, they kept her, and her daughter awake and disturbed their sleep. The Police Report was entered as Exhibit 3.
[25] In addition, Ms. Szabo told the court that she sent several emails about the noise to both the property manager of the Brimell Court Co-op and to her boss Cynthia Kiriazakas. Some of those emails involve complaints about March 1st, April 25th, May 4th, June 13th and August 11th, where Ms. Szabo testified she was hoping that they could resolve the noise issue.
[26] She further testified that the noise kept her and her daughter awake and sleep deprived that went on for two months. Due to this, she said that her daughter was doing poorly at school and was seeking the assistance of the Coop management to have a peaceful night’s rest.
[27] Ms. Szabo explained an email she sent on May 4th. In it she referred to the people staying in Ms. Morales’ home and who she described as making noise between the hours of 12:00 and 3:00 in the morning. She wrote that they should not have been staying over for more than three months. Szabo also questioned whether there was a by-law prohibiting visitors from disturbing tenants by such as at Brimell Court Co-op.
[28] Furthermore, Ms. Szabo testified about other emails requesting a meeting as soon as possible with the Board of Directors of the Coop to address the unresolved issue of the noise allegedly coming from Unit 71. She had also complained about being frustrated and tired of the neighbour and their visitors lack of respect.
[29] In addition, she told the Court about an email dated September 11, 2018, addressed to Andrea Morales which said, and I quote: “As talked about in mediation, the by-law that stated after eleven o’clock there shouldn’t be noise coming from anyone’s unit. I am entitled to the reasonable enjoyment of my home which I am not getting when being disturbed again. It’s 12:25 and there’s a lot of noise coming from your unit keeping my myself and daughter awake. As my daughter has school and I have work; we have to get up early and we need a good night’s rest. Please be considerate and respectful after eleven o’clock.”
[30] Ergo, Ms. Szabo testified that she reached out to the Mayor of the City, John Tory, as well as the City Councillor Michael Thompson and the Member of the Provincial Parliament Christina Mitas to complain about this issue of the noise. Exhibit 4.
[31] Lastly, Ms. Szabo testified that the issue of the noise with Unit 71 came to an end when she brought a Statement of Claim against Ms. Morales and the Brimell Court Co-op in Small Claims Court around February or March 2019. In addition, she told the Court that her sole motivation was for the neighbours to be quiet at night and for her and her daughter to enjoy a peaceful night’s rest.
[32] Under cross-examination, Ms. Szabo testified that she had copied all of the noise dates she had written down in her calendar into the City’s noise log.
When asked by Defence if she had submitted her calendar to the by-law officer or the prosecutor. Ms. Szabo responded that she was told the noise had to be logged in the City noise log as their legal proceedings are through a noise log and that’s what she did.
[33] When asked about the Toronto Police Report of April 25, 2018, for the event number 742935, Ms. Szabo testified that she called the police, they were dispatched and expected they had knocked on the door of Ms. Morales. She also stated the police told her this is not a police matter, but a city of Toronto by-law complaint.
[34] Furthermore, she testified she contacted the police three times, even though she knew it is not an issue for them. She clarified she was trying to have the police knocking at the door of Ms. Morales to get some peace and quiet for her and her daughter.
[35] To the question that some dates on the noise log in Exhibit 2 which involve Saturdays and Sundays and how it could impact her and her work, she testified they impact her daughter’s schooling and her mental health. In addition, Ms. Szabo clarified that the maintenance requests during the months of October and November 2018, are not complaints and are separate from her noise complaints.
[36] When Ms. Szabo was asked how to determine whether or not the noise is excessive, she told the court that if it keeps her and her daughter awake all night long and prevent them from a reasonable enjoyment of her unit and this noise happens between 11:00 p.m. and 7:00 am when there is not supposed to be any loud noise, then it was excessive to the point of keeping them awake and she has the right to complain about it.
[37] Ms. Szabo could not explain the time discrepancy between the noise log and the investigative notes which indicated the loud noise until 1:00 a.m. Ms. Szabo clarified she had no control over what time was put there if it is different from her notes.
The Court heard from the prosecutor’s second witness James Slocum. He is the Supervisor of Municipal Licencing & Standards in the East District. His testimony could be summarised as follows:
[38] Mr. Slocum testified that he was employed by the City since June 1997 and that his role is to reinforce the municipal by-laws with the assistance of a team of 10 officers. Furthermore, he indicated that he is aware of the noise advisory that was issued about this matter.
[39] In addition, Mr. Slocum told the Court that a noise advisory, Exhibit 6, is a document that was sent by regular mail to the property owners on June 20, 2018. It was addressed to Andrea Morales of 1250 Brimley Road, Unit 71 pertaining to a noise complaint. Furthermore, he testified that the noise advisory is issued at time of intake advising of a complaint filed with the Municipal Licencing and Standards. It advises of an alleged noise complaint of banging, screaming, loud music from 11:00 p.m. to 2-3 a.m. most evenings, emanating from her premises which is causing disturbance, and therefore may be a violation of the City Municipal Code, Chapter 591-Section 2.
[40] In addition, MR. Slocum indicated that the City needs to have relevant factors to issue a noise log to a complainant and their investigation is based on the complainant’s noise log provided.
[41] Under cross-examination, Mr. Slocum clarified that he was in Court to speak to the noise advisory that was addressed to Ms. Morales, alerting her of the alleged noise complaint in violation of the Municipal Code. He testified that he was not aware of the particulars of this matter. He went on to say this and that that he was not involved in the investigation. Mr. Slocum said the matter was investigated by an officer in their team Frank Mielewczyk, and who is now retired from the City.
[42] Mr. Slocum reiterated that a Noise advisory is a standard operations procedure advising the individual of the alleged complaint about the Municipal Code. In addition, he told the Court that he has access to the electronic file and the investigation notes which he reviewed for the third time.
6. TESTIMONY OF THE DEFENCE’S WITNESSES
The Court heard from the defendant, Andrea Morales, the owner of unit 71 and her testimony could be summarized as follows:
[43] Ms. Morales testified that she is a Social Worker at Elisabeth Fry Toronto. In addition, she indicated that she had reviewed the noise logs described in this allegation and it is impossible for this noise to happen due to her work with vulnerable women where she needs to be 100% mentally. She also told the Court that the noise described by Ms. Szabo is impossible to take place and that she had mediations about it initiated by Brimell Court Co-op and that she has been targeted with this noise.
[44] Furthermore, Ms. Morales testified that she does work shifts from 8:30 a.m. to 4:30 p.m. and from 4:00 p.m. to 12:00 a.m. In addition, she indicated that her workplace is 15 minutes from home, that she arrives by 12:20 a.m. to 12:30 a.m.; if there is an issue involving her workplace which takes more time, she may arrive at her residence by 1:00 a.m. and she goes straight to sleep after that.
[45] Ms. Morales told the Court she lives with her son and two nieces. When asked if it is possible that the noise was made by her guests while she was away? Ms. Morales testified that she can’t confirm or deny that. She added that one of her nieces was going to university and the other one was working at a dental office from 9:00 am to 5:00 p.m.
[46] When asked specifically if the noise was coming from the two young girls in her Unit #71, Ms. Morale testified they are a very respectful family and she has never had any issues with any of her neighbours. She said she was surprised about the complaints to come to these proceedings. Furthermore, she confirmed that Ms. Szabo knocked on her door one night to speak to her nieces and that she spoke to her directly about the noise complaint.
[47] Ergo, she told the Court that she was aware of the noise complaint when she received the notice and had left a message to Frank Mielewczyk. Ms. Morales said she also spoke to his supervisor and that no one from the Municipal Standards ever came to inspect by visiting where she lives.
[48] In addition, Ms. Morales testified about the email that she had received from Ms. Szabo on September 11, 2018, at 12:35 a.m. and her response the following day in which she had indicated there was a commotion when she fell in the bathtub and the kids who woke up from the noise, came to help her.
[49] Ms. Morales testified that she had been sued by Ms. Szabo for $25,000 in the Ontario Superior Court, Small Claims about the noise allegations on April 15, 2019, and this is the same allegation before this court. In addition, Ms. Morales said she is denying the claim of the noise and not admitting anything in both courts.
[50] Furthermore, Ms. Morales told the Court that she had filed a defence claim and a counter suit against, Ms. Szabo, her daughter, and the Brimell Court Co-op in the Small Claims Court on May 30, 2019, filed as Exhibit 14.
[51] In concluding, Ms. Morales said she feels this proceeding is wasting taxpayers’ money and could have been settled outside the Court. She added that it has affected her son and her and caused her anxiety, stress, insomnia and that she can not enjoy her home anymore.
[52] Under cross-examination, Ms. Morales confirmed that Melissa Massari who was 25 years old and Fernanda Morales (21-22 years old) are her nieces who arrived from Nicaragua on March 26, 2018. When asked about when they left her unit, she testified that she can not remember those dates and indicated that it could be by the end of that year, or the beginning of the following year and they were there for at least nine months.
[53] In addition, Ms. Morales testified that she did not get any permission for her nieces to stay at her place at the beginning and it was in August or September that she registered them in response to the request of the Board of the Coop and they left when they found somewhere else to live.
[54] When she was asked if she took any steps to have her nieces removed from her unit, Ms. Morales testified by answering NO and indicated that they moved out when they found a place, they were able to afford.
[55] In addition, the Court was provided with Exhibit 17, page 109 of the Document Book in regard to the minutes of Board of the Coop who ordered her to have her guests removed by November 1, 2018. Ms. Morales testified that her nieces moved after that date and that she had never taken any steps as they were looking for a place to move out.
[56] Ms. Morales testified that her nieces were in the Unit when she was not physically there to supervise them, and they are adults and her son who was 18 years old was also there. She acknowledged she did not know what they were doing when she was away from the home.
[57] When asked about the cause of the noise problems which started when her nieces arrived and it ended when they left, Ms. Morales testified that she can not recall. In addition, she confirmed that she arrives at her unit the latest at 1:00 am when there is an issue at work.
[58] Ms. Morales was asked if there has been a noise complaint, the same as the one we are dealing with here after her nieces left, her response was that she does not know and can not confirm or deny. In addition, when she was asked if she has ever filed a noise complaint similar to the one against Ms. Szabo, said she can not remember.
The Court heard from Mr. Dale Major Wareham, the defence’s second witness. He is an electrician and lives at Unit 70, North of Ms. Morales’s Unit. His testimony could be summarized as follows:
[59] He testified that between March 23 to September 13, 2018, as the neighbour of Ms. Morales, he did not have any issue and that he does not recall any noise or hearing any loud banging, screaming or noise from the shower. In addition, he told the Court that he has joining walls with Ms. Morales and that he stayed with his girl friend and never heard any noise during the week or on weekends.
[60] Under cross-examination, he testified that between March 23 and September 23, 2018, he was not always living at his unit and that he frequently stayed overnights with his girlfriend in Etobicoke. In addition, he confirmed that there was no specific pattern to his stays with his girl friend and that it continued until at least September 2018.
7. THE POSITION OF THE PARTIES
[61] The prosecution submits that Ms. Szabo described the nature of the noise that was impacting her as screaming, loud music, banging late at night and early in the morning disturbing her sleep and her daughter’s sleep. It also described her procedure for keeping the notes in the calendar that was transcribed in the noise log of the City.
[62] In addition, the prosecution contends that this noise log is a confirmatory of the testimony of the noise as well as the police calls and the emails that were made which support her testimony of the noise and her frustration because she was losing sleep night after night.
[63] For the prosecution, the noise problem started and ended with the guests who were staying at Ms. Morales’s Unit. The prosecution contends that the noise was caused by the visitors who were at Ms. Morales Unit without her being there as she was working, and her work shifts go up to 12:00 or 1:00 am.
[64] Ergo, the prosecution submits that Ms. Morales is not able to testify on the noise as she was not there, and we did not hear from the two visitors. The only evidence we have for that period is from Ms. Szabo. On behalf of the prosecution, Ms. Ross submits that the motivation of Ms. Szabo in making the complaints is to obtain quiet and when the guests left, it resolved the issue and the noise stopped.
[65] It's the City position that Ms. Morales failed to exercise any due diligence to stop the noise from occurring, she is the Coop owner of her unit, and she is responsible for the noise that emanated from there.
[66] In addition, the prosecution submits that Ms. Morales is aware that her nieces are responsible for the noise, as the Coop Board had approached her about them staying there. Ms. Morales was ordered to remove them but they did not leave by the timeline provided by the Co-op or at the behest of Ms. Morales. They only left when it was convenient for them.
[67] For the prosecution, Ms. Morales did not take any steps by way of due diligence to have her guest removed, she was fine to have them there and the noise continued to persist despite being aware of it. That’s a complete utter failure of her due diligence according to the prosecution.
[68] The prosecution also contends that Ms. Szabo’s evidence was far clearer and more credible as she kept a more fulsome and credible record of the evidence than we have heard from Ms. Morales who frequently answered questions without providing specifics or dates and who spoke in generalities.
[69] More fundamentally to assess the evidence and the credibility according to the prosecution, Ms. Morales was not always there on her own admission, with no evidence from her about what was occurring; the only evidence is the one from Ms. Szabo through her records with the nose log, the police calls and the emails. That’s a substantial and corroborated record from Ms. Szabo of what happening during this time period.
[70] For the prosecution, the charges have been proven beyond a reasonable doubt based on Ms. Szabo’s evidence. Ms. Morales was put on notice and she failed to take any steps to ask her guests to leave or exercise any due diligence, Therefore, the City asked the Court to enter a conviction.
[71] The Defence’s position is that that the prosecution made numerous statements which do not align with the facts of this case and the defendant’s statements are inconsistent because they took place five years ago. In addition, the nieces left after September 2018 and the offence statement indicates that noise started and stopped when the guests left (From March 23 to September 13, 2018).
[72] Ergo, Defence contends that the City log is questionable and not an original, even if Ms. Szabo transcribed the information from her calendar that she has never submitted as evidence to the Court. On behalf of his client, Mr. Brown pointed to the evidentiary conflict in regard to the timing from the investigative notes of the City of Toronto which indicate the noise went to 1:00 am and the log that went beyond that to 2 or 3 a.m.
[73] In addition, defence submits that it can not be said that Ms. Morales permitted the noise to continue if she was not at her unit and we are dealing with adults. All we have is the insinuation from Ms. Szabo that it was Ms. Morales’s nieces who were making the noise and we do not know if Ms. Morales was there and permitted the noise. It can not be said that Ms. Morales permitted the noise, or it was deliberate when she fell in the bathtub on September 11th.
[74] For the defence, there is no indication of who was making the noise and at what time. Also, Ms. Morales was involved in the mediation twice and did her due diligence to look at the matter. In addition, defence contends that when dealing with the test of credibility in R. v. WD, the Court should not reduce it to whom I believe more. Furthermore, Mr. Brown submits that the inconsistencies of the evidence and documentary evidence, shows that the prosecution has not proven the case beyond a reasonable doubt.
8. ANALYSIS
[75] At the outset, let me indicate that the evidence has revealed that the basic elements of the offence through the noise log, the emails and the police calls have been made out. However, the court has identified the following issues which have arisen in this proceeding, and need to be addressed:
- The first issue is whether I am satisfied that there was a noise emanating from Andrea Morales’ Unit 71?
- If yes, is Ms. Morales as the Owner of Unit 71 responsible for the noise coming from her house? Did she permit the noise?
- If yes, was the noise emanating from Ms. Morales, Unit 71 excessive?
- If the answer is yes, has the prosecution proven beyond a reasonable doubt that the defendant had committed this offence?
- Did the defence raise or create a reasonable doubt in the mind of the court or that there is reasonable doubt that the actus reus of the offence had not been committed by the defendant?
- Did the defence present a defence of due diligence?
- Did the application of abuse of the process and stay of the proceedings fail or succeed?
[76] As indicated earlier, this matter is a strict liability offence that provides Ms. Morales with the opportunity to escape conviction if she can prove that she had taken all reasonable steps for the circumstances or the lack of fault or negligence in committing the actus reus of the offence when the prosecution meets its onus.
1. The first issue is whether I am satisfied that there was a noise emanating from Ms. Andrea Morales Unit 71?
[77] The Court accepts the evidence from the noise log of the City of Toronto as a confirmation of the noise during the offence period. In addition, I find the viva voce evidence of Ms. Szabo supports and confirms the noise was coming consistently through to her daughter’s room that is adjacent by the wall to Ms. Morales’s Unit 71.
[78] Furthermore, I accept Ms. Szabo’s evidence that described the nature of the noise as screaming, running up and down the stairs, loud music, banging, slamming doors late at night and early in the morning disturbing her and her daughter’s sleep that could not have come from anywhere else but from Ms. Morales’s Unit.
[79] I also accept the evidence that Ms. Szabo knocked at the door of Unit 71 once at 2:30 in the morning and spoke to the two young women who were staying at Ms. Morales about the issue of the loud noise they were making. Furthermore, the Court accepts that Ms. Szabo spoke at least on one or two occasions to Ms. Morales about the noise she was hearing from her unit that kept her and her daughter awake at nighttime. This noise was happening consistently and was docketed by the dates and time it happened.
[80] Even though Ms. Morales denied the noise was coming from her unit, I accept that she was not physically at her house because she was working in the evening, returning home late around 12:20 to 1:00 a.m. She testified that she did not know what her nieces were doing and could not confirm or deny that the noise was made by them.
[81] In addition, I accept the overwhelming evidence provided to the Court indicating the noise was coming from Unit 71, including the police calls, the emails to and from the Brimell Court Coop and the emails to Ms. Morales.
[82] Ms. Szabo’s email on the morning of September 11, 2018 introduced by the defence as Exhibit 16, is another indication of the noise happening even in the presence of Ms. Morales: “Andrea the noise never ended with you apparently falling continued and continued until 3 in the Morning again so we will just move forward to court. I have it all on video as evidence that was not a fall as you claimed but blatant disrespect that continued into late in the morning. We have had many discussions and have gone to mediation I have had enough. Marsha Szabo.”
2. If yes, did Ms. Morales permit the noise and as the Owner of Unit 71, is she responsible for the noise that was coming from her house?
[83] The Court accepts that all the documentary evidence and the viva voce evidence from all the witnesses in this trial points to the undisputed fact that Ms. Morales is the Owner of her unit 71 at 1250 Brimley Road and she was during the period of the offence. This includes the various correspondence from the Brimell Court Coop and the Noise Advisory letter of June 20, 2018, that was sent to the property owner.
[84] Ergo, the Court turned its mind to the key wording in this offence. It is whether “did Ms. Morales permit the noise which is likely to disturb the quiet, peace, rest, enjoyment, comfort or the convenience of the inhabitants of Unit 72 who are Ms. Szabo and her daughter”?
[85] When I searched the definition of the word permit in the New Webster Dictionary, it indicates what follows: “to allow by silent consent or by not prohibiting (someone) to do something”.
[86] I accept that Ms. Morales has permitted the loud noise to take place in her unit when she allowed her nieces to stay with her during the nights. She was made aware of the noise complaints that were emanating from her premise and that were causing a disturbance to her neighbour, Ms. Szabo, and her daughter. For this, Ms. Morales was approached directly by the complainant, the Coop’s management and the board of directors.
[87] Even though Ms. Morales indicated that her nieces are adults, and they are a very respectful family, I accept that by allowing them to stay at her place, she did not supervise them to prevent them from making the noise that was described by Ms. Szabo and that was coming from her unit.
[88] Therefore, I accept that Ms. Morales permitted the noise to happen from her premise. As the owner of her unit 71, I accept that she did not prevent the noise from taking place from her premise and that she is responsible for the noise occurring and emanating from her house.
3. If yes, was the noise emanating from Ms. Andrea Morales Unit 71 excessive
[89] I accept the evidence of Ms. Szabo that the noise was excessive. She described the type of the noise that happened from around midnight to 2-3 am and sometimes to the early hours of the morning. She said it was emanating from Unit 71 and included loud music, screaming and banging.
[90] The Court finds the noise described was excessive because it kept Ms. Szabo and her 12-years-old daughter awake. Furthermore, I accept that the loud noise disturbed their peace, prevented them from getting rest and having a reasonable enjoyment of their home.
[91] Ms. Morales denied the noise ever happened and that it was impossible. In addition, her agent, Mr. Brown, presented the defence of due diligence and raised questions about the log that was not original, the inconsistencies of the timing in the log and in the investigative notes, that Ms. Morales did not permit the noise when she was not at her unit and have created a reasonable doubt on parts of the evidence of the prosecution.
[92] In this case where a reasonable doubt is presented, it is incumbent upon the court to refer to the decision of the Supreme Court of Canada in R. v. W. (D), [1991] 1 S.C.C. 742 in which Justice Cory J. set out the credibility test as follows:
- First, if you believe the evidence of the accused, obviously you must acquit.
- Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
- Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[93] In terms of credibility, the Court finds that all the witnesses, Ms. Marcia Szabo, Mr. James Slocum, Ms. Andrea Morales, and Mr. Dale Major Wareham were doing their best to tell the truth about what happened.
[94] On one hand, I find the testimony of Ms. Szabo to be credible, clear, specific in details and she was not shaken while under rigorous cross-examination. She noted the dates, the timing, and the type of noise that she transcribed in the City of Toronto’s noise log.
[95] In addition, she clarified that she has no control and nothing to do with the timing that indicated the loud noise in the investigative notes of the City went until 1:00 am. Furthermore, I accept that Ms. Szabo did not submit her calendar to the Court as the requirement of the legal proceedings of the City by-law is through the noise log and the noise described should be logged.
[96] The Court accepts as true that the noise emanating from Ms. Morales’s premise affected her, prevented her and her young daughter from a reasonable enjoyment of their home and a reasonable peaceful night of sleep and rest.
[97] In these circumstances, I accept as true that her motivation is her well-being, the well-being of her daughter and the negative impact on her schooling.
[98] About the testimony of Mr. James Slocum who didn’t investigate this matter or knew of its particulars, the Court accepts that he told a credible, clear, and concise story. In addition, he was present to speak to the noise advisory that was sent to Ms. Morales advising her about the noise complaint allegation and the City needs to have compelling factors to issue a noise log to Ms.
[99] The Court finds the testimony of Mr. Dale Major Wareham to be clear, credible and to the point. I find his testimony, however to be of no assistance to the Court as he was staying frequently with his girlfriend in Etobicoke, during the weeks and on weekends.
[100] On the other hand, the court finds the evidence of Ms. Andrea Morales to be problematic, lacking the specifics and in some instances contradictory and not reliable.
[101] For the court, it does not make sense that she denied the noise completely and the noise described by Ms. Szabo as being impossible. Furthermore, Ms. Morales testified that she can not confirm or deny when she was away that the noise was made by her nieces from her premise. In addition, she confirmed that when she was not physically at her unit, she did not know what her nieces were doing in her absence.
[102] The court is satisfied through the documentary evidence that Ms. Morales received correspondence from the Brimell Court Co-op about the noise complaints emanating from her unit. She confirmed the receipt of the noise advisory letter and she followed up with the supervisor of Mr. Frank Mielewczyk, the by-law Officer. In addition, Ms. Morales confirmed that Ms. Szabo emailed her and spoke to her directly and to her nieces about the noise complaints.
[103] I find it interesting Ms. Morales response to Ms. Szabo’s email sent to her on September 11, 2018, around 12:35 a.m. about the noise from her unit, was due to a commotion from her falling in the bathtub. However, Ms. Morales did not respond to or follow up on another important email that was sent to her by Ms. Szabo at 8:31 a.m. indicating “that the noise never ended with her apparently falling and the noise continued until 3 in the morning again so we will just move forward to court”.
[104] Concerning Ms. Morales’s evidence and her calendar that the noise was coming from Ms. Szabo’s Unit, the Court accepts that it is not Ms. Szabo who is on trial on this matter. It is Ms. Morales.
6. DID THE DEFENCE PRESENT A DEFENCE OF DUE DILIGENCE?
[105] In regard to the defence reliance upon the second branch of the defence of due diligence, namely that Ms. Morales was involved in the mediation twice, that she did not permit the noise if she was not in her unit and that her nieces are adults.
[106] The Court accepts that there is no evidence before me which establishes, on a balance of probabilities, that in permitting the noise for the subject offence from her unit, Ms. Morales took all reasonable steps available to avoid committing the offence or did so, on the basis of an honest and reasonable mistake of fact.
[107] I find the defence assertion that Ms. Morales did not permit the noise when she was not at her unit, that we don’t know who was making the noise and at what time it happened to be unreasonable. The Court accepts that as the owner of her premise, Ms. Morales failed to exercise any due diligence to stop the noise from taking place when she allowed it to occur after two mediations.
[108] Furthermore, the defendant, Ms. Morales has admitted she knew about the Noise Advisory of June 20, 2018, which advised her of the noise complaint of loud music, banging and screaming from 11:00 pm to 2-3 am. The Court did not find she took any reasonable steps to deal with the issue and to remove her nieces who were causing this noise or accelerate their departure even though, and by her own evidence, she was aware of the decision of the Board of Directors of the Coop to remove them from her unit.
[109] For the Court, a reasonable person would have acted differently and would have made reasonable efforts to deal with the noise issue that was disturbing their neighbours. Ms. Morales had options available to her to take reasonable measures and precaution to have her nieces leave sooner or to help them find another place where to stay.
[110] For the Court, by admitting that she has never taken any steps to remove her guests and by allowing her nieces to stay with her until it was convenient for them and the noise to continue to persist, Ms. Morales has failed to exercise any due diligence on her part as the owner of her premise.
7. THE APPLICATION FOR THE ABUSE OF THE PROCESS
[111] Defence presented the Court with two cases; one of them is R. v. Legault 2001 and Rex v. Leroux of 1928 Court of Appeal that the Applicant referred to heavily: I find defence’s submission for the abuse of process turns around two elements:
- That Ms. Szabo has threatened and has gone to the Small Claims Court to collect a civil debt in the amount of $25,000 down the road and the Court must prevent multiplicity of proceedings.
- That Ms. Szabo was ‘forum shopping’ to get a remedy.
[112] The Applicant contends that Ms. Szabo indicated in her email of September 11, 2018, that she will go to court and the Small Claims Court happened after the swearing of this information to prosecute the civil debt in the amount of $25000.
[113] Mr. Brown refers to the case of Rex. v. Leroux and submits whether the complainant can go to the criminal court to recover the money that was claimed by the complainant. According to defence, when we look at Leroux, the court stated: “that he tried to get the matter settled in some way by the accused, either by partial payment or by securing or otherwise, and that he told the accused that if he did not get it settled, he would swear out a warrant for his arrest. In effect, the complainant, by threatening prosecution, endeavoured to obtain payment of a debt. What was done in this case amounted to an abuse of the process of the Court and should not be tolerated. Assuming that the accused was guilty of a criminal offence, if he had made some settlement with the complainant in consequence of which no charge has been laid, the complainant would have been found guilty of compounding a felony. Criminal law was not enacted for the assistance of persons seeking to collect civil debts”. Rex. v. Leroux Last Paragraph. Page 692. Dominion Law Report 3 series
[114] In addition, defence asserts that if Ms. Morales is found guilty in this trial, there will be a negative impact on her and will contribute to a collection of debt. According to the Applicant, a conviction here will become a double penalty as we are looking at the maximum fine $5,000 and $25,000 in the Small Claims Court.
[115] Furthermore, defence submits that Ms. Szabo filed a civil claim at the Small Claims Court, tried to contact the Mayor, the City Councillor, the Member of the Provincial Parliament, and the mediation of the Co-op Board of Directors. Therefore, she was forum shopping, and it is the case here with this proceeding. For the Applicant, this is a clear case of abuse of process and Ms. Morales is besieged on all sides. Therefore, defence asks the Court to stay the charge to prevent this from happening.
[116] The prosecution submits that the Applicant alleges an abuse of process by referencing duplicity of the proceedings involving the charge before the Court and a Small Claims Court proceedings. For the prosecution, the matter before the Court is a regulatory charge that comes first in time and does no duplicate the parties, the legal test nor the available remedies.
[117] The Respondent contends that the Court has already dealt with the Application of the defence in the ruling about the issue of estoppel and whether another forum has dealt with the City by-law infraction. It is the prosecution’s view that if there is another parallel proceeding in existence, it has no bearing on this one.
[118] In addition, the prosecution contends that the charge before the Court under municipal by-law does not regulate the relationship between two private individuals and it does not duplicate a civil process. For the Respondent, to hold otherwise would not permit the courts from making a finding, for instance, under the Highway Traffic Act and the complainant pursuing a personal injury claim which is a very common occurrence.
[119] The Supreme Court of Canada has articulated the high standard for the finding of the abuse of the process. It is confirmed in R. v. Babos 2014 SCC 16 where it indicated that the principle that a stay of proceedings for abuse of the process will be warranted only in the “clearest of cases” and in R. v. Regan (2002 SCC 12), it articulated the test for a stay of proceedings and established two requirements. One is that the prejudice caused by the abuse in question will be manifested, perpetuated and aggravated through the conduct of the trial or its outcome. The second is that no other remedy is reasonably capable of removing the prejudice.
[120] I do not agree with the submission of the Applicant as I find the matter before me is factually distinguishable from the case of Leroux. I do not find any threat from Ms. Szabo toward Ms. Morales to use the Criminal Code or the Small Claim Court based on false pretence or misleading information to collect a debt.
[121] Furthermore, I accept that each proceeding is clearly defined with its own rules and purposes. The mater before me is a City of Toronto Prosecution and not a duplication of the proceedings with the Small Claims Court. In addition, Ms. Szabo is not a party to this proceeding, and she is only a witness. Therefore, the Court will deal with the issue of the noise on the merit of the case, the evidence heard and the pertinent law.
[122] The Court does not find any prejudice to Ms. Morale’s right when Ms. Szabo contacted the Mayor, the City Councillor, and others to seek help and assistance with the issue of the noise from unit 71 that was affecting her and her daughter. Her motivation was for the neighbour to be quiet at night and to enjoy a peaceful night rest, which is reasonable to expect. Therefore, I do not agree with the submission of the Applicant that Ms. Szabo was forum shopping and I find that there has been no abuse of the process and the defence’s Application is dismissed.
9. CONCLUSION
[123] After reviewing the relevant case law, the totality of the evidence, which includes viva voce evidence, documentary evidence and after careful review of the submissions from the Prosecution, and Defence, the Court finds that the prosecution has met its onus of proving the actus reus of the offence against Ms. Morales, that the loud noise was emanating from her premise and that it caused disturbance to Ms. Szabo and her daughter, which impacted their lives, their performance during the day and prevented them from a reasonable enjoyment of a night’s sleep.
[124] Based on the totality of the evidence before this Court, including the reasons provided earlier, I am satisfied that the prosecution has proven the actus reus of the offence and that the defendant has not satisfied the court on a balance of probabilities either that she exercised all reasonable care to avoid committing the offence or that she had an honest but mistaken belief in facts which, if true, would have rendered the act innocent and could have exculpated her.
[125] As such, I am satisfied that the prosecution has proven this case beyond a reasonable doubt. Accordingly, I find the defendant guilty and register a conviction against her.
Dated at Toronto, this 3rd of April 2023.
Mohammed Brihmi, JoP.