ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-304-00
DATE: 2012Nov29

BETWEEN:

HER MAJESTY THE QUEEN Applicant (Respondent on Application) – and – CANADIAN NATIONAL RAILWAY COMPANY Respondent (Moving Party)

S. Viau, for the Applicant
J. Melia, for the Respondent/Moving Party

HEARD: November 2, 2012 at Kingston

Tausendfreund J.

REASONS for decision

OVERVIEW

Overview

1This is an Application by the Respondent, Canadian National Railway Company (“CN”) for an Order in the nature of Certiorari quashing the Decision of His Worship Justice of the Peace Ernest Parsons of the Ontario Court of Justice, rendered on May 15, 2012 whereby he denied the CN motion for constitutional relief and refused to dismiss the charges laid against the CN under s. 36(1) of the Building Code Act , 1992, S.P.O. 1992, c.23.

BACKGROUND

Background

2At the centre of this dispute is the original CN station (“Kingston Railway Station”) in the City of Kingston. It served that city from 1853 until 1974 when the tracks were relocated and a new VIA station was built. The old station has since fallen into disrepair. Both sides agree that the original station should be rehabilitated and preserved. However, they disagree on who has the right to dictate when and how that work is to proceed. In short, the application of the paramountcy doctrine is in play.

3The Heritage Railway Stations Protection Act (“HRSPA”) prohibits a railway company from undertaking certain activity relating to a designated heritage railway station, including “altering” any of its heritage features. “Altering” is defined in s. 2(1) the HRSPA:

2. (1) In this Act,

“ alter ” means to change in any manner and includes to restore, renovate or repair;

4The HRSPA provides that to proceed with an activity such as “altering”, in this case, the CN must file an application for authorization from the Federal Government after giving public notice. If objections are received, public hearings may be held with an eventual recommendation to issue. The Act further provides that CN may be guilty of an offence if it were to proceed with alterations without the required authorization.

5S. 15.1(3) of the Building Code Act , 1992 (the “BCA”) gives municipalities the authority to pass by-laws describing standards for the maintenance of property. In 2005, the City of Kingston enacted such a by-law (the “By-Law”). It provided, in part, that failing to comply with an Order issued pursuant to the By-Law is a contravention of the BCA, enforceable through the issuance of a Provincial Offences Notice under the Provincial Offences Act (“POA”).

6I accept and adopt the following narrative as detailed in the Application Record:

9. On July 8, 2010, the City of Kingston issued Order No. 2010-0268RBY against CN alleging violations of the By-Law in respect of the Kingston Railway Station (the “Property Standards Order”). The Property Standards Order required that immediate action be taken with respect to the property including, but not limited to, conducting various repairs to the exterior walls and roof as well as obtaining an engineering report;

10. On July 20, 2010, CN advised the City of Kingston that the Kingston Railway Station was subject to the HRSPA , which provides that no work can be undertaken on any such property without the prior approval of the federal government following the submission of a detailed application describing the proposed work. CN further advised that it had commissioned an engineering review of the building and that it would submit it to the appropriate federal body for review and advisement as soon as finalized. ... ;

11. Subsequently, on August 3, 2010, the City of Kingston refused to grant CN an extension of the Property Standards Order, ... ;

12. On September 8, 2010, CN advised the City of Kingston that it took the position that the Property Standards Order was outside of the jurisdiction of the City of Kingston in light of the application of the HRSPA and the exclusive jurisdiction of the federal government. ...

7CN then served notice of its intent to challenge the constitutional validity of the By-Law. CN took the position that it could not comply with the Property Standards Order and at the same time, comply with the provisions of the HRSPA which, in any event, had paramountcy over the City of Kingston By-Law.

8The City of Kingston then proceeded under Part III of the BCA with an Information alleging that CN had committed the offence of failing to comply with the Order under the By-Law to repair the station in accordance with that Order.

9The trial on the charge under s. 36(2) of the BCA of failing to comply with an Order of the City of Kingston to repair the railway station proceeded before the learned Justice of the Peace on May 15, 2012. After the plea was taken, the first order of business was the CN motion for constitutional relief to dismiss the charge against CN on the basis of the paramountcy doctrine. The learned Justice of the Peace dismissed the constitutional challenge by CN and held that the Ontario Building Code applies to the railway station in the face of the HRSPA . The trial then proceeded with some evidence being called when it was adjourned over an unrelated disclosure issue. This application followed. The continuation of the trial is now held in abeyance to await the disposition of this application.

ANALYSIS

Analysis

10The BCA, in part, reads as follows:

116. (1) Where a proceeding is commenced by information under Part III, the defendant or the prosecutor or the Attorney General by way of intervention may appeal from,

(a) a conviction;

(b) a dismissal;

Sections of the POA of note are:

140. (1) On application, the Superior Court of Justice may by order grant any relief in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari. R.S.O. 1990, c. P.33, s. 140 (1) ; 2000, c. 26 , Sched. A, s. 13 (5).

141. ...

(3) No application shall be made to quash a conviction, order or ruling from which an appeal is provided by this Act, whether subject to leave or otherwise. R.S.O. 1990, c. P.33, s. 141 (3) .

(4) On an application for relief in the nature of certiorari, the Superior Court of Justice shall not grant relief unless the court finds that a substantial wrong or miscarriage of justice has occurred, ...

11Addressing the interplay between s.116(1) and s.141(3) and (4) of the BCA , the Ontario Court of Appeal in R. v. Arcand, 2004 ONCA 46648 , [2004] O.J. No. 5017 stated:

12The circumstances in which a superior court may intervene in the course of a trial in a lower court are narrowly circumscribed by statute and by the common law. Section 141(3) of the Provincial Offences Act , R.S.O. 1990, c. P.33, provides that "no application shall be made to quash a conviction, order or ruling from which an appeal is provided under [the] Act". Section 141(4) provides that on an application for relief in the nature of certiorari, the Superior Court of Justice "shall not grant relief unless the court finds that a substantial wrong or miscarriage of justice has occurred".

13At common law, certiorari and prohibition are discretionary remedies and the superior court should generally decline to grant the remedy where there is an adequate appellate remedy. As Doherty J.A. said in R. v. Duvivier (1991), 64 C.C.C. (3d) 20 at 23-4 (Ont. C.A.),

The jurisdiction to grant that relief, either by way of prerogative writ or under s. 24(1) of the Charter, is discretionary. It is now firmly established that a court should not routinely exercise that jurisdiction where the application is brought in the course of ongoing criminal proceedings. In such cases, it is incumbent upon the applicant to establish that the circumstances are such that the interests of justice necessitate the immediate granting of the prerogative or Charter remedy by the superior court.

After referring to a number of cases supporting this proposition, Doherty J.A. continued:

These cases dictate that issues, including those with a constitutional dimension, which arise in the context of a criminal prosecution should routinely be raised and resolved within the confines of the established criminal process which provides for a preliminary inquiry (in some cases), a trial, and a full appeal on the record after that trial.

Those same cases identify the policy concerns which underline the predilection against resort to the superior court for relief during criminal proceedings. Such applications can result in delay, the fragmentation of the criminal process, the determination of issues based on an inadequate record, and the expenditure of judicial time and effort on issues which may not have arisen had the process been left to run its normal course. The effective and efficient operation of our criminal justice system is not served by interlocutory challenges to rulings made during the process or by applications for rulings concerning issues which it is anticipated will arise at some point in the process. [Emphasis added.]

14Those policy concerns apply not only to criminal cases but also to proceedings under the Provincial Offences Act . See R. v. Felderhof , [2002] O.J. No. 4103 at paras. 11-16 (S.C.J.) , aff'd (2003), 2003 ONCA 37346 , 180 C.C.C. (3d) 498 (Ont. C.A.)....

12I note that a plea was taken at the start of trial and before the motion on the constitutional question was heard. In my view, this motion by CN to quash the decision of the learned Justice of the Peace does not address a decision made on a pre-trial motion, but a decision during the course of a trial from which the right of appeal under the BCA would lie. On the issue of whether the learned Justice of the Peace had jurisdiction to decide this constitutional question, I adopt and accept the following paragraphs from the City of Kingston factum:

14. Jurisdiction is not about correctness; rather, it relates to the “authority to determine the issue.” Ontario (Ministry of Labour) v. Intracorp Developments (Lombard) Inc., [2002] O.J. No. 1209 (S.C.J.) para. 27 .

15. Section 15.1(3) of the BCA gives municipalities the authority to pass bylaws to prescribe standards for the maintenance and occupancy of property.

16. Under the authority of the BCA, Council of the City of Kingston enacted a Property Standards Bylaw. Failing to comply with an order issued pursuant to this Bylaw is a contravention of the BCA, enforceable through the issuance of a provincial offences notice under the POA .

17. Section 39(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) provides that a Justice of the Peace may preside over the Ontario Court of Justice in a proceeding under the POA .

18. The Information was laid pursuant to Part III of the POA, and therefore the proceedings were properly before the Justice of the Peace.

19. It is therefore within the jurisdiction of the Ontario Court of Justice, Provincial Offences Court to hear and determine the constitutional applicability of a by-law. In other words, the learned Justice of the Peace did not exceed His jurisdiction by rendering a decision on the constitutional issue.

13This Court may grant relief for certiorari for jurisdictional error in a quasi criminal proceeding such as this prosecution under the POA , but not for an error within jurisdiction for which an appeal would lie: see R. v. 1353837 Ontario Inc., (2005) 74 O.R. (3d) 401 at para.13.

14Additionally, to grant relief in the nature of certiorari, I must find under s. 141(4) of the POA that a substantial wrong or miscarriage has occurred. I am not prepared to so find. It remains open to CN to appeal the decision of the Justice of the Peace once the trial has concluded.

15The Application is dismissed without costs.

16The trial is to continue on a date to be fixed by the trial coordinator.

Honourable Mr. Justice W. Tausendfreund