His Majesty the King (City of Hamilton) v. Daryl Kuzyk, 2024 ONCJ 409
Date: July 31, 2024 Ontario Court of Justice Central West Region
His Majesty the King (City of Hamilton) -and- Daryl Kuzyk
Trial commenced: July 30, 2024 Decision and Reasons issued: July 31, 2024
Appearances: G. Tennant, for the Prosecution M. Samani, for the defence
Statutes Considered or Cited:
- Building Code Act, 1992, S.O. 1992, c. 23, as amended (“BCA”)
- Rules Of The Ontario Court (Provincial Division) In Provincial Offences Proceedings, R.R.O. 1990, REGULATION 200
Cases Considered or Cited:
- Northern Bruce Peninsula (Municipality) v. Dolson, 2018 ONCA 895
- R. v. Boucha, 2021 ONCJ 141
- R. v. Newton-Thompson, 2009 ONCA 449
- R. v. Pickles, [2004] O.J. No. 662
Decision of the Court
[1] For the reasons set out below, I grant the defendant’s (oral) motion, set out prior to the hearing of any evidence, to find that the proceedings against the defendant cannot continue, as they are barred by the limitation period set out in s.36(8) of the BCA.
Background and Evidence
[2] This matter came before the court in an unusual way, in that there was no motion brought pursuant to Rules Of The Ontario Court (Provincial Division) In Provincial Offences Proceedings, specifically s.7, which provides:
- (1) An application provided for by the Act or these rules shall be commenced by notice of application. (2) A motion provided for by the Act or these rules shall be commenced by notice of motion. (3) There shall be at least three days between the giving of notice of application or notice of motion and the day for hearing the application or motion. (4) An applicant or moving party shall file notice of application or notice of motion at least two days before the day for hearing the application or motion. (5) Evidence on an application or motion may be given, (a) by affidavit; (b) with the permission of the court, orally; or (c) in the form of a transcript of the examination of a witness. (6) The justice or clerk of the court may receive and base their decision on an application or motion on information the justice or clerk considers credible or trustworthy in the circumstances, whether or not other evidence is given on the application or motion.
[3] Specifically, there was no motion filed in advance, notice was not provided to the Prosecution, nor was there an affidavit of evidence in support of the motion.
[4] That said, the Prosecution raised no objection to the hearing of the motion, in large part, I suspect, because it understood the issue would be raised (it was apparently raised during a judicial pre-trial), and the prosecution certainly understood the nature and scope of the motion, as it had prepared a response, including having a case at the ready.
[5] It is clear that no prejudice to the opposing party arose as a result of the manner in which the motion came before the Court.
[6] At the same time, the Court was left to deal with the issue “on the fly”, having had no opportunity to review motion materials in advance. This is not an appropriate way to have a matter addressed in the Court.
[7] In addition, had the Court been asked to adjudicate the jurisdictional issue in question prior to the commencement of the trial (scheduled for one full day, but scheduled over two sitting days of the Court), valuable trial time would not have been lost to the Court.
[8] There appears to be no dispute regarding the “facts” or “allegations” that underly the motion. There appears to have been construction performed at a premise now owned by the defendant [1].
[9] At some point in 2021, a City Inspector observed the results of the construction, determined that the scope of work required a building permit and that none had been secured. He issued an order under s.12(2) of the BCA. The date prescribed in the Order for compliance was one month later. It is alleged that compliance was not achieved.
[10] For reasons that were set out in the oral submissions (not by sworn evidence), but not disputed by the prosecution, the Inspector was subsequently re-assigned to other duties, and no follow up occurred. At some later point, the Inspector resumed his inspection duties, resumed responsibility for the file, and determined compliance had still not occurred. He commenced the proceedings before the Court. However, this did not occur until early 2023, now almost two years from the date of the alleged delict.
[11] The defence relies on Boucha. This decision rested on the foundation first laid out in Pickles, which, on its own my have disposed of the question.
[12] The prosecution relies on R. v. Newton-Thompson, which addresses the issue of a continuing offence.
[13] Quick research then brought up the case of Northern Bruce Peninsula (Municipality) v. Dolson, 2018 ONCA 895, which distinguishes from Pickles, as it recognizes the change in the statutory provision in s.36(6) of the BCA, which started the clock ticking for the limitation period from the completion of the delict, to the time when the delict is discovered. This amended provision was enacted in 2009.
[14] I further accept that the compendium of cases I have referenced make clear that the issue of continuing offence is a distraction and not determinative of the question regarding the limitation period, and therefore not of assistance [2].
Analysis
[15] While I am troubled by the manner in which this issue came before me, I accept that it amounts to a jurisdictional question which must be addressed prior to hearing evidence on the merits of the case.
[16] I accept the reasoning set out in Pickles, with an updated analysis in Northern Bruce Peninsula (Municipality) v. Dolson which addresses the change in the relevant statutory provision, and adopted in Boucha, as dispositive of the question before me.
[17] While I am not armed with evidence, I accept that I am authorized to act on the strength of “information the justice or clerk considers credible or trustworthy in the circumstances, whether or not other evidence is given on the application or motion.” This is especially true as the information I adopt coincides with the particulars set out in the Information, and was not challenged by the Prosecution.
Issued at City of Hamilton, Ontario, July 31, 2024
His Worship Donald Dudar Justice of the Peace
Footnotes
[1] There is some suggestion that the defendant was not the owner of the subject property at the time of construction.
[2] The Court in Pickles adopted the reasoning in R. v. Rutherford (1990) and held:
[22] In my view, Wilson J. was correct to rely on Rutherford in the present case. The nature of the offences in the two cases is similar. In both cases, there was a specific act - faulty installation of electrical equipment and construction of a dock without a building permit. In both cases, the consequences of the specific act 'continued' in a sense - the electrical equipment was not repaired and a building permit was never obtained. However, in Rutherford this court held that the completion of the specific act triggered the commencement of the limitation period. As Wilson J. correctly recognized, the same interpretation, and result, should follow in the present case.
[23] There is a second feature of Rutherford that, in my view, is telling in this appeal. In his discussion about so-called 'continuing offences', Grange J.A. observed, at p. 45:
It is considerably easier to find a continuing offence where the statute provides for a penalty for every day that the corrective work is not done or the offending activity continues to be done. Such a provision is found in s. 93(11)(c) of the Act, which relates to continued disobedience of an order made under s. 93(5). The juxtaposition of this provision in s. 93(11)(c) to the absence of such a provision in s. 93(11)(b) is significant.
[24] There is a similar juxtaposition of provisions in the BCA. Indeed, under the specific heading Continuing offence, s. 36(6) of the BCA provides:
36(6) Every person who fails to comply with an order made by a chief building official under subsection 14(1) or clause 15(5)(a) is guilty of an offence and on conviction, in addition to the penalties mentioned in subsections (3) and (4), is liable to a fine of not more than $10,000 per day for every day the offence continues after the time given for complying with the order has expired.
[25] In my view, it is clear and noteworthy that the legislature specifically addressed the subject of continuing offences in the BCA, and did not include violations of s. 8(1) [ed note: nor s12, as in this instant case] in its list of such offences.
36(6) Every person who fails to comply with an order made by a chief building official under subsection 14(1) or clause 15(5)(a) is guilty of an offence and on conviction, in addition to the penalties mentioned in subsections (3) and (4), is liable to a fine of not more than $10,000 per day for every day the offence continues after the time given for complying with the order has expired.