Thomas v. Halton Region Conservation Authority, 2017 ONSC 514

Citation: Thomas v. Halton Region Conservation Authority, 2017 ONSC 514 Court File No.: 11/17 Date: 2017-01-20 Superior Court of Justice - Ontario

Re: JEAN and PETER THOMAS, Applicants And: HALTON REGION CONSERVATION AUTHORITY, Respondent

Before: Gray J.

Counsel: Jean and Peter Thomas, Self-represented Jonathan H. Wigley, Counsel for the Respondent

Heard: January 20, 2017

ENDORSEMENT

[1] There are two matters before me today: an application by the applicants for certiorari, to quash a decision of Justice of the Peace Farnand, and to prohibit the holding of a trial under the Conservation Authorities Act on the ground that the laying of the charge under the Act was statute-barred; and a motion by respondent to require the trial to continue notwithstanding the certiorari application. The Justice ruled that the case is not statute-barred.

[2] Pursuant to section 140 of the Provincial Offences Act, the applicants have served an application for certiorari. The justice of the peace has ruled that the trial will be interrupted until the application is heard and disposed of, or this court orders otherwise.

[3] The applicants have requested an adjournment. They submit that as self-represented litigants they need time to ensure that the Court has all the proper material before it, and they need time to properly respond to the material and caselaw that has been filed by respondent’s counsel. After hearing submissions, I adjourned the application to April 27, 2017.

[4] The respondent has brought a motion, pursuant to section 141(2.1) of the Provincial Offences Act, requesting an order that the trial continue despite the application for certiorari. Under that subsection, the court has discretion to make such an order “if it is satisfied that it is in the interests of justice to do so.”

[5] I am persuaded that an order pursuant to s.141(2.1) should be granted. My brief reasons follow.

[6] While an application under s.140 of the Provincial Offences Act is not an application to which the Judicial Review Procedure Act applies, nevertheless the principles to be applied on such an application are very similar. Section 140(1) of the Act refers specifically to orders in the nature of mandamus, prohibition or certiorari.

[7] The Judicial Review Procedure Act was enacted to provide a procedure that, in general terms, would replace the old prerogative writs of mandamus, prohibition and certiorari. Carved out from the Judicial Review Procedure Act are proceedings in the nature of the old prerogative writs that are preserved by s.140 of the Provincial Offences Act. However, I see no reason in principle why the court should approach proceedings under s.140 of the Provincial Offences Act any differently than applications for judicial review under the Judicial Review Procedure Act.

[8] In proceedings under the Judicial Review Procedure Act, the courts have made it clear that it is generally not appropriate to interrupt proceedings while they are in progress, with applications for judicial review, before those proceedings have been completed: see Volochay v. College of Massage Therapists of Ontario (2012), 2012 ONCA 541, 111 O.R. (3d) 561 (C.A.); and Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364. Generally speaking, it is best that proceedings run their course before the Court is asked to entertain an application for judicial review.

[9] While motions under s.141(2.1) of the Provincial Offences Act must be brought by a respondent, and thus the onus is on the respondent to show that an order under the subsection should be granted, the court should nevertheless be informed by the general principle to which I have referred.

[10] In this case, if an order section 141(2.1) is not granted, the trial will be interrupted at least until this Court makes its decision on the certiorari application. It is only if the application succeeds that there will be any advantage. However, if the application does not succeed, there will have been a delay in proceeding with the trial. That is not in the interests of these parties, nor is it in the public interest.

[11] If the trial proceeds pending the outcome of the application for certiorari, I see no prejudice to the applicants. If they succeed in the application, the entire proceeding will be quashed. In the alternative, if they are convicted they can raise the same issues on the application as grounds of appeal.

[12] On balance, I think it is in the interests of justice to grant an order, pursuant to s.141(2.1) of the Provincial Offences Act, that the trial continue forthwith. The appropriate order shall issue.

Gray J.

Date: January 20, 2017