Court File and Parties

CITATION: FINN ET AL. v. TOWN OF AURORA ET AL., 2017 ONSC 6157

NEWMARKET COURT FILE NO.: CV-17-00131694-0000

DATE: 20171017

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anne-Marie Finn and Denis Van Decker, Plaintiffs

AND:

Town of Aurora, Region of York, Mandie Crawford aka Mandie Eddie, Christopher Bendick, Defendants

BEFORE: THE HONOURABLE JUSTICE S.E. HEALEY

COUNSEL: The Plaintiffs, Self-represented

C. Lougheed and C. Bendick, for the Defendants Regional Municipality of York and Christopher Bendick

C. Painter, for the Defendants Town of Aurora and Mandie Crawford aka Mandie Eddie

HEARD: October 4, 2017

ENDORSEMENT ON MOTION

[1] This is a malicious prosecution action in which the plaintiffs seek damages in the amount of $1M, together with punitive damages, from the defendants, incorrectly identified as the Town of Aurora and the Region of York in the title of proceedings. The basis for their malicious prosecution claim are two prosecutions commenced against them under the Provincial Offences Act, arising from an Order to Comply issued pursuant to the Town of Aurora Property Standards Bylaw. The plaintiffs state that they have been unfairly prosecuted both by the proceedings and by the conduct of the defendants throughout those proceedings.

[2] The first prosecution resulted in a dismissal of the charge on November 15, 2016. It is important to note that the Reasons for Judgment of Her Worship Mews make clear that the dismissal of the charge was not based upon a finding that the Order to Comply had been satisfied, or that the objects complained of in the Order were not properly characterized as "garbage", "refuse" or "debris". Instead, the dismissal was a result of her finding that the conflicting evidence of the bylaw enforcement officer who took photographs left her with a reasonable doubt about whether what he observed on the offence date of August 22, 2013 was credible and reliable.

[3] The second prosecution arises from the same Order to Comply, with the summons showing a charge date of November 14, 2016. The uncontested evidence of the Town is that the bylaw enforcement officer was requested to attend the property to take pictures to be used in the sentencing in the event that a conviction was entered on November 15, 2016. With the charge being dismissed, the Town elected to use that evidence to lay a new charge on the belief that there was sufficient evidence of continuing noncompliance with the Order to Comply.

[4] The plaintiffs bring this motion within this malicious prosecution action seeking the following orders:

1. An order dismissing the property standards proceeding as an abuse of process "designed to prevent our Public Participation in the Town of Aurora Bylaw Reform process and Debate";

2. In the alternative, an order staying the proceeding until this action is tried, on the grounds that it is an abuse of process;

3. That a permanent restraining order be placed against the defendants and their agents to stay 20 metres from the property boundary of the home or businesses of the plaintiffs, and not to take pictures of the property(s) until they have a non-anonymous complaint and a judicial warrant where the issuing judge has also been made aware of this restraining order;

4. That a permanent restraining order be placed against the defendants and their agents to not prevent the defendants (presumably an error, meant to be "plaintiffs") or their family from entering onto or using Town of Aurora or York Region facilities; and

5. Cost for this motion, a Divisional Court appearance, for abuse of process and the 25 court appearances in the Provincial Offences Court.

[5] The grounds for the motion are set out to include the following:

The charges of the Town of Aurora v. Anne-Marie Finn filed with the court on November 15, 2016 based on an Order on April 29, 2013 with charges laid Aug 26, 2013 that were tried on October 13, 2016 Ex-Parte without defence and were dismissed on November 15, 2016.

We allege and claim that the new Aurora Bylaw Litigation brought in November of 2016 and the actions of Mandie Crawford aka Mandie Eddie to block us from entering a Public Council meeting on Nov. 22, 2016 are just some of the latest Abuses of Process in a Malicious Prosecution of each of us and our family in an attempt to Blacklist us within the Town of Aurora and prevent us from participating publicly in bylaw reform, from participating at the 2017 Aurora Eco Fair (and attempt to do so in 2016) and using Town facilities open to the public, such as the Stronach Aurora Recreation Center. We further allege and claim that the Town of Aurora Bylaw Department is "Rogue", not controlled by management nor politicians, are involving other Town departments in their blacklisting and will continue this 4+ year campaign of harassment and malicious prosecution if there is no immediate intervention by a higher court.

[6] By cross-motion, the Town of Aurora and Mandie Crawford seek orders that this action be placed in case management and assigned to a particular judge, and that the plaintiff must obtain leave from the case management judge prior to bringing any further motions.

[7] During argument, Mr. Painter for the Town of Aurora also made an oral motion that the action be dismissed under Rule 21.01(3)(d) because it has been commenced for an extraneous or collateral purpose and is therefore frivolous, vexatious or an abuse of process. The extraneous or collateral purpose alleged is to attempt to deter the Town from proceeding with the Property Standards prosecution.

[8] Dealing first with the plaintiffs’ motion for costs of the appearance of September 7, 2017, that request was previously made by the plaintiffs and denied. The endorsement of Master Muir from September 7, 2017 reads, in part

… It is unclear to me why this matter ended up on my list. It appears there has been some miscommunication within the court office. For this reason there will be no order for the costs of today. The motion is adjourned to be heard by a judge together with the plaintiffs’ pending motion on a long motion on a date to be scheduled through the trial coordinator’s office [emphasis added].

[9] The issue of costs having already been decided by the master exercising her discretion under s. 131(1) of the Courts of Justice Act with respect to a step in this proceeding, no change may be made to that order by a judge in the absence of an appeal. As stated in Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594 at p. 604:

The cases cited above and authorities referred to therein confirm the well-established and fundamentally important rule, relied on in the case at bar in the Manitoba Court of Appeal, that an order of a court which has not been set aside or varied on appeal may not be collaterally attacked and must receive full effect according to its terms.

[10] Dealing next with the request for the granting of permanent restraining orders, these motions must be dismissed because a permanent injunction can only be granted after a full adjudication of the parties' rights: 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd. (2014), 2014 ONCA 125, 371 D.L.R. (4th) 643 (Ont. C.A.) at paras. 56 and 79-80. Needless to say there has been no adjudication of the parties' legal rights in this action, which is only at the pleadings stage. Further, there has been no claim made in the pleadings for injunctive relief to restrain the Town from taking such steps. It would be an error for this court to grant such permanent relief at this stage and without the proper basis found in the pleading itself.

[11] Dealing next with the motion to dismiss, or alternatively, stay the Provincial Offences Act proceeding on the ground that it is an abuse of process, the preliminary question is whether these motions are the same as those that were heard and determined by Mullins, J. on July 14, 2017. If this court determines that they are, then the plaintiffs’ present motion must be dismissed as res judicata.

[12] The motion before Mullins, J. was for:

1. A dismissal of the charges and current proceedings;

2. Failing the decision to dismiss, that the court would stay the proceedings until after the malicious prosecution claim between the parties and arising from the same and similar charges has been tried and a final decision has been made; and

3. Failing this that the charges be suspended as per anti-SLAPP legislation until the allegation of the SLAPP actions by the defendants is heard as part of the malicious prosecution suit.

[13] The grounds for the motion heard by Mullins J. were the same as those cited above for the motion now before the court, along with an additional cited ground that "Anti-SLAPP Legislation (Bill 52, 137.1, Subsection 5) calls for a proceeding to be suspended until the SLAPP issue can be adjudicated on. We claim that the defendants are engaging in SLAPP with this continued prosecution/persecution".

[14] In dismissing the plaintiffs’ motions on July 14, 2017, Mullins J. stated at paras 6-8 of her Reasons:

Ms. Finn has been required to appear by Summons under Section 24 of the Provincial Offences Act, in respect of the charge that she was, on or about the 14^th day of November 2016, in breach of an order. The evidence does not establish, on a balance of probabilities, that the subject “proceeding” is a “proceeding” arising from an expression made by Ms. Finn that relates to a matter of public interest, within the meaning of Section 137.1. On this ground alone I would dismiss the motion.

It is not clear to me, how a quasi-criminal proceedings such as a charge arising from an alleged breach of an order to comply with a municipal by-law falls within the provisions of Section 137.1. ‘Proceeding’ is not per se defined in the CJA, or the Rules of Civil Procedure, but Section 95(1) of the Act specifies which of the sections of the CJA apply to Provincial Offences and it does not include Section 137.1. Rule 2 addresses the different kinds of proceedings, such as claims, Statements of Claims, but all referred to are in the nature of civil proceedings. The prosecution of Ms. Finn does not, self-evidently, constitute a civil proceeding.

To be sure, the Superior Court of Justice has jurisdiction to stay proceedings on the ground they constitute an abuse of process. Ms. Finn and Mr. Van Decker parted company somewhat in their oral submission as to whether this too was a basis for the relief they sought. If so, the applicable test, as cited by the defendants in R. v. Reeve, [2000] O.J. No. 3538, has not been met. There is no evidence that there is prejudice to Ms. Finn's rights to a fair trial. What is in issue is whether she has complied with the municipality's order to clean up and repair certain deficiencies in the condition of her home and yard. She is at liberty to seek a stay of proceedings in the Court which will adjudicate that charge. For these reasons to, I dismiss the motion.

[15] The evidence filed on each motion is largely repetitive. The affidavit of Anne-Marie Finn sworn July 4, 2017 was the documentary evidence used on the July 14 motion; that same affidavit was relied on in the present motion. Additionally, Mr. Van Decker’s affidavit filed for the present motion contained virtually identical exhibits to those found in Ms. Finn's affidavit, although his affidavit contained a far more extensive history of the proceedings.

[16] When one compares the motion material before Mullins J. with the motion material that is now before this Court, together with reference to the Notice of Appeal filed in respect of the order of Mullins J., it is clear to this Court that the pith and substance of the relief claimed, and the grounds for such relief, are the same. The plaintiffs are firmly of the view that the Town’s primary motivation in undertaking both prosecutions is to thwart them from attending at and participating in public counsel meetings in the past and for the future, and to prevent them from being critical of the bylaw department and from presenting their ideas for reform. At the prior motion, the plaintiffs framed the Town's actions as falling within the parameters of s. 137.1 of the CJA, and here they frame their actions as amounting to an abuse of process, relying on the same fact scenario that existed at the time of the earlier motion.

[17] Mullins J. also examined whether the current bylaw prosecution could be characterized as an abuse of process, and she specifically found that the applicable test set out in R. v. Reeves, [2000] O.J. No. 3538 was not met in this case. She also noted, correctly, that any stay should be brought before the Justice of the Peace currently presiding over the Provincial Offences Act proceeding.

[18] That being the case, the relief sought by the plaintiffs for an order staying or dismissing the Provincial Offences Act proceeding is res judicata. That doctrine seeks to establish finality in litigation, ensuring that a party not be permitted to re-litigate issues already decided by the courts. While the plaintiffs believe that this doctrine should be invoked to prohibit the current prosecution from proceeding, it does not apply because no final determination was made about whether the plaintiffs have complied with the Order to Comply. In the absence of such finding the Order remains actionable, meaning that a further charge can be laid if there are reasonable and probable grounds to believe that an offence has occurred, as has been the case here.

[19] Although the plaintiffs also argue that the bylaw prosecution should be stayed pursuant to s. 137.1(5) of the CJA, until such time that an appellate court rules on the decision made by Mullins J. that s. 137.1 has no application to this quasi-criminal proceeding, her decision remains final and binding and therefore the appeal provisions of that section do not apply.

[20] For these reasons the plaintiff's motion is dismissed in its entirety.

[21] With respect to the cross-motion by the Town of Aurora and Crawford for case management, that motion must be directed to the Regional Senior Judge for a determination, and I have endorsed that the trial coordinator shall do so. With respect to the oral motion made pursuant to Rule 21.01(3)(d), I decline to deal with that request as the plaintiffs were not given written notice of the motion in accordance with the Rules.

[22] Any cost submissions made in respect of these motions shall be in writing and no longer than three double-spaced pages. They are to be directed to me through the offices of the judicial assistants in Barrie. The defendants are due by October 25, 2017, the plaintiffs’ by November 3, 2017 and any reply by November 7, 2017.

HEALEY J.

Date: October 17, 2017