Court File and Parties
COURT FILE NO.: 1920/17 (Sarnia) DATE: 20170629 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cory Caughy, Applicant AND: Her Majesty the Queen in Right of Ontario and the Director of Vehicle Standards, Respondents
BEFORE: Carey J.
COUNSEL: Cory Caughy, acting in person Hart Schwartz, for the Respondent Her Majesty the Queen in Right of Ontario Matthew Peachey, for the Respondent, Director of Vehicle Standards
HEARD: April 7, 2017
Endorsement
[1] The Crown seeks an order as set out at page 2 of tab 1 of the motion record in this case dismissing the applicant’s proceedings commenced by a Notice of Constitutional Question:
THIS MOTION IS FOR AN ORDER:
(a) dismissing the applicant’s extant proceedings that were commenced by means of a “Notice of Constitutional Question” in their entirety but without prejudice to the applicant re-commencing a proper application at the right time, in the right court;
(b) in the alternative,
(i) dismissing the application for relief in the nature of prohibition purporting to prevent the Licence Appeal Tribunal from considering evidence obtained on a search warrant;
(ii) dismissing the request for a Garofoli motion;
(iii) dismissing the request for an order in the nature of certiorari to quash the search warrant;
(iv) quashing the criminal subpoena purportedly issued under s. 699 of the Criminal Code;
(v) striking out the claim for $289,300 in damages;
Background
[2] Mr. Caughy is the owner/operator of Rusty Nuts Mechanical Service on West Ipperwash Road in the Municipality of Lambton Shores. He applied for a motor vehicle inspection station (MVIS) licence from the Director of Vehicle Inspection Standards (at the Ministry of Transportation for Ontario (MTO)). This licence would permit him to issue safety standard certificates for customers. One requirement of obtaining this licence is to demonstrate that the business is in an area zoned for that business by the municipality.
[3] The MTO received, as part of the application, a letter purported to be written on the letterhead of the Municipality of Lambton Shores, indicating that the applicant’s business could operate at that location as a motor vehicle inspection station. Subsequently, Mr. Caughy received his initial MVIS licence.
[4] After the licence was granted and Mr. Caughy’s business was operating as a motor vehicle inspection outlet, the OPP, acting on information received from confidential sources, applied for a warrant to search both Mr. Caughy’s home and business premises for stolen cars. The police also apparently had information that Mr. Caughy was operating in an area not zoned for motor vehicle repair business. That search warrant application was turned down by the presiding justice of the peace. Subsequently the OPP successfully applied for and obtained a search warrant limited to seeking evidence of fraud and only in Mr. Caughy’s shop premises. At the time of the execution of that search warrant, MTO inspectors attended and assisted the OPP. Consequently, Mr. Caughy was charged with fraud. Those charges were eventually withdrawn after a preliminary hearing in September of 2016, following a judicial pre-trial before me in this court. As a result, the OPP returned some documents that had been seized and Mr. Caughy obtained redacted copies of the ITO for both search warrant applications with the identifying information about the confidential informants redacted.
[5] Meanwhile, following the OPP search in January of 2015, an MTO officer attended the premises of Rusty Nuts. The MTO says that based on a conclusion that the business had been abandoned, it issued “an administrative termination” and the MVIS licence was noted as revoked in the computer systems of the MTO. It also appears that although Mr. Caughy was not advised of the termination, his customers were. Mr. Caughy submits he first learned of the licence termination through a customer, sometime in the summer of 2015. Following his learning of the termination, he sought reinstatement of his licence but the MTO refused reinstatement on the basis that the business violated local zoning by-laws.
[6] The director issued a notice of proposal to revoke Mr. Caughy’s licence in August 2015. That proposal alleges infractions of the Highway Traffic Act, R.S.O. 1990, c. H.8, as well as the business being conducted on property that is not zoned for that purpose. Mr. Caughy appealed the notice of proposal and requested a hearing by the Licence Appeal Tribunal (LAT). Mr. Caughy brought a motion before that tribunal to exclude evidence gained during the OPP search of his premises due to a violation of his Charter rights under s. 8 of the Charter of Rights and Freedoms.
[7] In July of 2016, the applicant issued an application for an order of mandamus (1886/16). He indicated in that application that as a result of the arbitrary revocation of his licence, his business and finances had been ruined. He declared he had gone into “tremendous debt” that had rendered him unable to afford counsel. He asked this court to “forgive my lack of sophistication and any errors in form procedure in my application” (para. 31).
[8] This motion is similar to one brought before me and dismissed on September 1, 2016, without prejudice to it being brought “in the appropriate court at the appropriate time”. That document sought a total $289,000 for compensation and damages. As well, it sought an order of reinstatement of his MVIS licence pending a tribunal hearing in accordance with the Highway Traffic Act and an order that the director retract “defaming” notices sent to Mr. Caughy’s customers.
Order Sought
Position of the Parties
[9] The applicant submits that the prohibition application request is appropriately brought before the Divisional Court, pursuant to s. 7 of the Judicial Review Procedure Act (JRPA), it is deemed to be an application for judicial review and, as such, must be made to the Divisional Court: s. 6(1) JRPA.
[10] The respondent Caughy responds that the applicant misapprehends the nature of the relief sought in respect of the LAT. He says he is seeking relief that survives the criminal proceeding under s. 8, 9 and 24 (1) and (2) of the Charter, for an appropriate remedy. He argues that this court is one of competent jurisdiction for a damages award as well as the Charter relief.
[11] The applicant could be forgiven for misapprehending the relief sought in the respondent’s material given the volume of material and the multiplicity of requests. In my view though, the applicant has made no such error and is correct.
[12] On November 29, 2016, the licence tribunal sitting in London heard jurisdictional motions related to the appeal. On February 2, 2017, the tribunal issued a decision. That decision firstly, found that the tribunal had the jurisdiction to hear the appeal. Secondly, the tribunal determined that it was a court of competent jurisdiction to hear Mr. Caughy’s motion to exclude evidence gathered during the OPP search of his business premises. The tribunal further found it would not hear evidence that looked behind the ITOs that were submitted for the two warrants. It further ruled that it did not have the jurisdiction to make declaratory decisions sought by Mr. Caughy but would be able to make a finding that the applicant’s Charter rights had been breached and exclude evidence. As well, the tribunal agreed to decide whether it had the jurisdiction to hear Mr. Caughy’s s. 15 Charter claim and grant the remedy he sought upon hearing the details of the specific claim he wished to make, the basis for that claim and what remedy he claimed. Next, the tribunal dismissed claims under s. 7 and 11 of the Charter as not being applicable in the proceeding before them. Finally, the tribunal found they had the obligation to protect identities of confidential informants and would not admit any evidence from the disclosure package that would tend to identify a CI until the Crown had an opportunity to review that material. [1]
[13] On March 2, 2017, the applicant delivered to the Sarnia Crown Attorney’s Office a document entitled “Notice of Constitutional Question”. While this document does not seem to raise a constitutional question or be a formal originating notice as defined in r. 14 of the Rules of Civil Procedure, it was accepted for filing by this court and formed the basis for the respondent’s motion to strike the application.
[14] The orders requested at p. 12-13 of the document are:
a) Remedial Charter damages of $289,000;
b) And that all direct and derivative evidence flowing from the multiple breaches of the Applicant’s Charter-protected interests should be excluded from any hearing pursuant to s. 24(2) of the Charter.
[15] Further on, at p. 13 of the document THE RELIEF REQUESTED is:
An Order allowing this Application, granting the Applicant leave to cross-examined affiant Constable Dale Marsden on the ITOs;
An Order declaring that the Applicant’s rights under section 8 and 9 of the Charter have been infringed, setting aside the warrants, and granting the remedy sought under section 24 of the Charter, full remedial compensation for unlawfully seizing the applicants (sic) MVIS licence during the search and the exclusion of all direct and derivative evidence obtained as a result of the breaches the Applicant’s Charter-protected rights.
[16] At p. 18 of the Applicant’s FACTUM under ORDER REQUESTED the applicant seeks:
[A]n Order allowing the cross-examination of the named affiant and sub-affiants on the areas set out in the herein factum and application and granting the remedy sought under section 24 of the Charter for remedial damages of $289,000 and a determination that all evidence obtained as a result of the violation of the Applicant’s rights be excluded from Crown proceedings against the Applicant.
Analysis
[17] I agree with the Crown that Mr. Caughy’s application is both premature and brought properly only before the Divisional Court, after the tribunal has dealt with the issues currently before it. Should that tribunal make any findings of fact that are consistent with violations alleged that would entitle the applicant to civil damages and damages for wrongful prosecution, he is not precluded to advancing a claim for the appropriate remedy in the appropriate forum, at that time.
[18] The very thorough reasons of the appeal tribunal reveal a full and well-articulated understanding of the background to Mr. Caughy’s requests. Having requested a hearing before the tribunal and consideration of his Charter motions, the respondent should complete the hearing process and, if unhappy with the tribunal’s decision, pursue his remedies before the Divisional Court.
[19] Accordingly, an order will issue dismissing the applicant’s proceeding that was commenced in this proceeding 1920/17 by means of a Notice of Constitutional Question in their entirety, without prejudice to the applicant bringing the appropriate application in the appropriate court.
[20] The Crown requested, if successful on this application, costs against the respondent in the amount of $1,000. Mr. Caughy is self-represented and is currently unable to operate his business. He says he is impecunious. The relief claimed by him was brought prematurely and in the wrong court. These errors were unintentional in my view and occurred as a result of his being self-represented and unfamiliar with the applicable law. In these circumstances, there will be no order as to costs.
[21] It is clear Mr. Caughy would benefit from competent legal advice. Given current restraints at Legal Aid Ontario, he may, despite his apparent dire financial situation, not qualify for assistance. Perhaps Legal Aid Ontario duty counsel or qualified counsel on a pro bono basis might be available to assist him. In any event, he should seek the advice of a lawyer. This is the second application I have dismissed without costs. I would not think this court would be as likely to dismiss a costs request by the Crown in the future if Mr. Caughy repeats these legal errors.
Original signed by Justice Thomas J. Carey
Thomas J. Carey Justice
Date: June 29, 2017
[1] 9768 v. Director of Vehicle Inspection Standards (2 February 2017), 9768/GAR, Licence Appeal Tribunal