SUPERIOR COURT OF JUSTICE - ONTARIO
RE: William Wakulich, Applicant
AND: Niagara Peninsula Conservation Authority and
The Corporation of the City of St. Catharines, Respondents
BEFORE: The Honourable Justice T. Maddalena
COUNSEL: Applicant self-represented;
Philip J. Kennedy, for the Respondents
HEARD: September 8, 2017 at Welland, Ontario
ENDORSEMENT ON MOTION
Introduction – The Issues
1The applicant, William Wakulich (“Wakulich”), has brought an amended motion before the court seeking the following relief:
An “order overturning the decision of Justice of the Peace R. Bisson, dated December 5, 2016, as it violated the applicant’s s.7 Charter rights”;
An order granting an extension to appeal the decision of Justice of the Peace R. Bisson, dated December 5, 2016;
An order that the Provincial court hear the applicant’s motion on statute-barred and double jeopardy issues;
An order granting the applicant the right to complete a fresh amended motion blending the December 5, 2016 and May 1, 2017 motions (in essence, a rearguing in Provincial court of matters that were already heard);
An “order that the case against the applicant on behalf of the Corporation of the City of St. Catharines (“the City”) be joined with the case against the applicant on behalf of the Niagara Peninsula Conservation Authority (“NPCA”) to form a single trial in Welland before Justice of the Peace Froese.”
2The respondents, the City and NPCA, oppose all the relief sought by the Wakulich and seek a dismissal of his application.
Summary of Background Facts
3In June 2012 the NPCA charged Wakulich with an offence pursuant to O. Reg. 155/06 s.2(1)(b), and s.28(1)(b) of the Conservation Authorities Act.
4Ontario Regulation 155/06, s. 2(1)(b) states as follows:
Development prohibited
2.(1) Subject to section 3, no person shall undertake development or permit another person to undertake development in or on the areas within the jurisdiction of the Authority that are,
(b) river or stream valleys that have depressional features associated with a river or stream, whether or not they contain a watercourse, the limits of which are determined in accordance with the following rules:
(i) where the river or stream valley is apparent and has stable slopes, the valley extends from the stable top of bank, plus 15 metres, to a similar point on the opposite side,
(ii) where the river or stream valley is apparent and has unstable slopes, the valley extends from the predicted long term stable slope projected from the existing stable slope or, if the toe of the slope is unstable, from the predicted location of the toe of the slope as a result of stream erosion over a projected 100-year period, plus 15 metres, to a similar point on the opposite side,
(iii) where the river or stream valley is not apparent, the valley extends the greater of,
(A) the distance from a point outside the edge of the maximum extent of the flood plain under the applicable flood event standard, to a similar point on the opposite side, and
(B) the distance of a predicted meander belt of a watercourse, expanded as required to convey the flood flows under the applicable flood standard, to a similar point on the opposite side;
5Section 28(1)(b) of the Conservation Authorities Act, RSO 1990, Chapter C.27, states as follows:
28 (1) Subject to the approval of the Minister, an authority may make regulations applicable in the area under its jurisdiction,
(b) prohibiting, regulating or requiring the permission of the authority for straightening, changing, diverting or interfering in any way with the existing channel of a river, stream or watercourse, or for changing or interfering in any way with a wetland;
6The 2012 charge concerned unauthorized construction of a solar panel array which modified a steep valley slope.
7On September 23, 2014, Justice of the Peace Carol Chernish dismissed the charge against Wakulich, noting that, despite the unapproved development on the property, the prosecution had failed to establish the date of May 24, 2011, which was an essential element of the offence.
8The NPCA appealed the decision to the Ontario Court of Justice. The Ontario Court of Justice upheld the decision of the Provincial Offences Court.
9On October 1, 2015 the NPCA received a complaint that a deck was being built on the Wakulich property in an area subject to the control of the NPCA. On October 13, 2015, the NPCA sent Wakulich a notice of violation of O.Reg 155/06. The violation described in the notice related to the construction of a deck structure on a regulated valley slope. The various notices were ignored by Wakulich. Subsequently, on February 8, 2016 Wakulich was served a summons by the NPCA relating to the deck structure.
10On October 2, 2015 the City of St. Catharines received information from a construction compliance technician with the NPCA regarding the construction of a deck on the Wakulich property at 9 Pine Street, St. Catharines. The City had not issued a building permit for the deck.
11On November 9, 2015, the City issued an order to comply to Wakulich for removal of the deck. Several warning letters were issued to Wakulich by the City. All of these were ignored. On July 24, 2016 the building inspector for the City attended at the Provincial Offences Court and swore an information that Wakulich failed to comply with a city order.
12A summons as served on Wakulich on August 11, 2016 alleging failure to comply with the Building Code Act, S.O. 1992, c. 23.
13On or about April 2016 Wakulich brought a motion in which he sought to move the trial of his matters from the Provincial Offences Court to the “Queen’s Bench Court of Record”. This motion was heard and dismissed by the presiding Justice of the Peace.
14Further, on or about June 2016, Wakulich, on his own initiative, issued a summons charging trespass to property against officers of the NPCA and the City as a result of their attending at the Wakulich property to leave notices of violations.
15The charges were taken over by the Crown Attorney who ultimately dismissed them.
16Wakulich brought a second motion, heard December 5, 2016, requesting a dismissal of the current charges claiming double jeopardy and claiming a limitations defence. Wakulich contended that the current charges in 2015 related to the same charge in 2012.
17On December 5, 2016, for reasons provided, Justice of the Peace Bisson dismissed the second motion of Wakulich.
18Wakulich then brought a third motion shortly before the trial, which was scheduled in May 2017. In this motion Wakulich requested a dismissal of all the charges based on res judicata, the expiration of the limitation period, and pleaded the Green Energy Act, 2009, SO 2009, c 12, Schedule A. This third motion was dismissed by Justice of the Peace Froese, citing that the matter had been dealt with on prior motions.
19Next, Wakulich filed an application in Superior Court on May 3, 2017 seeking dismissal of the charges stating that the charges were statute-barred, the charges violated his Charter rights, and that the Green Energy Act permitted the development. It alternatively sought an order requiring the Provincial Offences Court to rehear his motions.
20On May 23, 2017, the Superior Court ordered a timetable for serving and filing of all documents. Wakulich was to serve and file all of his materials by June 23, 2017. Further, on the evening of June 23, 2017, Wakulich served via email an amended notice of motion requesting additional relief including certiorari and mandamus.
21The amended notice challenged the ruling of Justice of the Peace Bisson made on December 5, 2016. It further named the City of St. Catharines as an additional respondent and sought to join the trial of the NPCA charge pursuant to the Conservation Authorities Act, with the City of St. Catharines charge pursuant to the Building Code Act.
ISSUES AND THE LAW
22I will deal with each of the issues raised by the applicant.
Issues of Double Jeopardy and Limitations
23Wakulich states that he was charged and prosecuted for building solar panels and supporting structures in 2011. The court ruled on the issues in September 23, 2014 by way of dismissal of all charges against him. Wakulich argues that he was again charged in 2016 for the same offences after both the City and NPCA decided to call the supporting structure a deck. Wakulich claimed the deck was part of the original prosecution. He states these are identical charges on the identical project.
24Wakulich states that the supporting structure was always to be a platform by which he could maintain the solar panels. Without the supporting structure, he could not perform maintenance on the solar panels. As a result, the applicant Wakulich pleads that the prosecution of 2011 to 2014 included the solar panels and all the supporting structure. Therefore, the court has already ruled on this issue. He now suggests that he is being prosecuted a second time for the same development. He, therefore, pleads res judicata and further submits that the current charges are statute-barred. Thus, he cannot be prosecuted again.
25Pursuant to s.28(16.1) of the Conservation Authorities Act, the relevant limitation period is “two years from the earliest of the day on which evidence of the offence is discovered or first comes to the attention of officers …”.
26The respondents clearly state that current charges relate to the deck development on or about October 2, 2015. The charges were brought February 8, 2016 all within the relevant limitation period. The charges are, therefore, properly laid and not statute-barred. The affidavit of Peter Graham of the NPCA, sworn June 29, 2017, confirms that on February 8, 2016 the NPCA served the applicant with a summons charging that on or about October 2, 2015 he had undertaken a development in a river or stream valley without the required authorization, contrary to O. Reg 155/06 and contrary to s.21(1)(b) of the Conservation Authorities Act.
27The previous charge laid was for unauthorized construction of a structure consisting of a solar panel array which involved the modification of a valley slope without proper authorization.
28According to the evidence, it is clear that the specific violation in October 2015 was the construction of a deck structure on a regulated river or stream valley slope. These, therefore, relate to different incidents, different dates, and different developments.
29The affidavit of Sandra Burrows, the Chief Building Official and Manager of Building and Development with the City, sworn June 28, 2017, confirmed the City had issued no building permit to the applicant for the construction of a deck. A building permit under the Building Code Act was required.
30On November 9, 2015 the City of St. Catharines issued an order to comply to the applicant. The order to comply required the removal of the deck on or before December 1, 2015. The order to comply clearly noted the construction of a deck without first obtaining a building permit. Various warning letters provided to the applicant were disregarded. By May 31, 2016, the City observed the deck still in place.
31By July 25, 2016 an officer of the City swore an information alleging the applicant failed to comply with an order to comply. A summons was served on the applicant August 11, 2016.
32The City states the charges under the Building Code Act are not statute-barred. Section 36(8) of the Building Code Act permits the limitation of one year for commencement of a proceeding based on a failure to comply order.
33According to the evidence, the City first received information regarding the deck construction in October 2015. The current proceeding was commenced July 25, 2016. Thus, there is no limitations defence.
34The evidence is clear the applicant has not applied for a building permit for the construction of the deck in question. The evidence is also clear that the deck was constructed without the approval of the NPCA.
35Justice of the Peace Bisson heard the motion of the applicant for dismissal of the charges. After a hearing of the motion, Justice of the Peace Bisson dismissed the motion of the applicant.
36The Justice of the Peace held that the charges were correctly brought. He determined there was no double jeopardy or limitations issue. The charge in 2015 arose from a different incident, i.e the construction of a deck, whereas the 2011 charge arose as a result of the construction of the solar panels array. A reading of the transcript of the reasons of Justice of the Peace Bisson is clear on this point.1
37I concur with the findings of Justice of the Peace Bisson, namely, that the charges in 2015 are not the same charges as arose earlier in 2011. The current charges relate to a deck structure whereas the earlier charges related to solar panel array. In addition, with the current charges the City is involved as well for failure to obtain a building permit for the construction of a deck.
38The evidence is clear and not disputed that the prior charge in 2011 related to the unauthorized construction of a solar panel array with supporting framework on a valley slope under the jurisdiction of the NPCA. The current charge relates to the construction of a deck.
The Green Energy Act
39In the alternative, Wakulich states the Province of Ontario has exempted all solar panel development from prosecution.
40He states that s.5(2) of the Green Energy Act supports his position. Section 5(2) states as follows:
5 (2) A person is permitted to engage in activities with respect to a designated renewable energy project, a designated renewable energy source or a designated renewable energy testing project in such circumstances as may be prescribed, despite any restriction imposed at law that would otherwise prevent or restrict the activity, including a restriction established by a municipal by-law, a condominium by-law, an encumbrance on real property or an agreement. 2009, c. 12, Sched. A, s. 5 (2).
41However, s.5(2) of the Green Energy Act is subject to the exceptions in s.5(4) which states as follows:
Exception
(4) Subsections (2) and (3) do not apply,
(a) with respect to a restriction imposed by an Act or regulation; or
(b) with respect to prescribed by-laws, instruments or other restrictions or prescribed classes of by-laws, instruments or other restrictions. 2009, c. 12, Sched. A, s. 5 (4).
42In addition, O. Reg. 15/10 under the Green Energy Act, s.4 states as follows:
Restrictions at law imposed under the following Acts are prescribed for the purposes of clause 5 (4) (b) of the Act:
Revoked: O. Reg. 438/12, s. 1 (1).
The Building Code Act, 1992. [Emphasis added]
The Clean Water Act, 2006.
The Conservation Authorities Act. [Emphasis added]
The Crown Forest Sustainability Act, 1994.
The Electricity Act, 1998.
The Endangered Species Act, 2007.
The Environmental Assessment Act.
The Environmental Protection Act.
The Fire Protection and Prevention Act, 1997.
The Fish and Wildlife Conservation Act, 1997.
43Therefore, the activity as undertaken by Wakulich is restricted by s.28(1)(b) of the Conservation Authorities Act.2 Further, s.4 of O. Reg 15/10 specifically excludes as falling under the Green Energy Act the provisions of the Building Code Act and the Conservation Authorities Act. Therefore, the Green Energy Act is not a defence to charges that arise under either the Conservation Authorities Act or Building Code Act as these are outlined as specific exceptions and exclusions under the Green Energy Act, O. Reg 15/10.
44In the instant case, I therefore conclude the Green Energy Act cannot be used as a defence by Wakulich to the charges brought against him.
Charter Arguments
(1) Section 7 of the Charter
45Wakulich, in his application, alleges a breach of s.7 of the Charter of Rights and Freedoms. Section 7 states as follows:
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
46Under s.28(16) of the Conservation Authorities Act, upon conviction, Wakulich could be liable to a fine of not more than $10,000 or to a term of imprisonment of not more than three months.3
47Further, pursuant to s.36(3) of the Building Code Act, Wakulich could be liable to a fine, if convicted, of not more than $50,000 for a first offence and to a fine of $100,000 for a subsequent offence.
48It does not appear from a reading of the provisions relating to the penalties upon conviction under either legislation that there is a real or imminent deprivation of liberty to Wakulich. One may conclude, therefore, that it is unlikely that s.7 of the Charter will be engaged. In any event, any such ruling is premature prior to the completion of the respective trials.
(2) Section 11(h) of the Charter
49Wakulich further states that s.11(h) of the Charter is invoked. Section 11(h) states as follows:
- Any person charged with an offence has the right
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; …
50For reasons already provided by me herein, I do not agree that s.11(h) of the Charter is invoked. The current charges before the court are separate and distinct from the earlier charges of which Wakulich was acquitted.
(3) Section 24(1) of the Charter
51Section 24(1) of the Charter of Rights and Freedoms states as follows:
- (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
52Wakulich, in addition to seeking the Charter remedies, seeks the court’s consideration of the extraordinary remedies of certiorari and/or mandamus.
53Both the NPCA and the City deny any breach of the applicant’s Charter rights and deny that any relief in the nature of certiorari or mandamus is appropriate under the circumstances. The respondents both plead that the applicant’s motions and actions have caused substantial delay of the trial of these two matters.
54The respondents state the applicant has caused unwarranted prosecution of City officials doing their job, needless involvement of Crown Attorney, and that motions of the applicant have misstated facts and have misunderstood the law. Further, the applicant has failed to give proper notice to relevant persons when a Charter motion has been brought.
55Further, according to s.141(4) of the Provincial Offences Act4, relief in the nature of certiorari requires evidence of “substantial wrong or miscarriage of justice”. Section 141(4) of the Provincial Offences Act states as follows:
141(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, and the court may amend or validate any decision already made, with effect from such time and on such terms as the court considers proper. [Emphasis added]
56Therefore, it limits the availability of the prerogative remedies sought by Wakulich to situations where the court finds a substantial wrong or miscarriage of justice.
57Wakulich has the onus of proof regarding the infringement of Charter rights and the miscarriage of justice that justify the court applying the prerogative remedies and writs of mandamus and certiorari.
58Wakulich claims that he was deprived of his right to be heard and the right to a fair hearing by the Justice of the Peace. I do not agree. The transcript of the evidence of the hearing before the Justice of the Peace confirms his motion was properly heard. The Justice of the Peace disposed of the motion based on the information and the materials provided to him.
59The onus is on Wakulich to establish a breach or miscarriage of justice or some other alleged wrong, based on the balance of probabilities. No such breach was established and, therefore, I find no Charter violations. Thus, the Charter is not engaged.
Mandamus, Certiorari
60In the case of R. v. 1353837 Inc., 2005 CanLII 4189 (ON C.A.), the court noted as follows in paras. 18, 19, 20, 21 and 23:
18That said, applications for certiorari under the POA should be granted only rarely. I say that for two reasons. First, most erroneous pre-trial rulings or rulings made during a trial will be errors within jurisdiction. Numerous examples come to mind including an erroneous order refusing to disclose a document to the defence, an erroneous refusal to admit a document at trial, or an erroneous refusal to allow counsel to ask a question of a witness. Unless any one of these refusals had a fundamentally important impact on the fairness of the proceeding, each would be characterized as an error within jurisdiction, rather than an error going to jurisdiction. Each would be appealable only at the end of the trial as part of an appeal against conviction, dismissal or sentence.
19The second reason why certiorari applications should be granted rarely flows from the salient fact that prerogative writs are discretionary. The POA itself, in s. 141(4), contains a legislative limit on granting prerogative relief:
141(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, and the court may amend or validate any decision already made, with effect from such time and on such terms as the court considers proper.
20However, the court's discretion to refuse a prerogative remedy goes beyond s. 141(4). Even if a preliminary ruling or a ruling during a hearing denies a party natural justice, the court or tribunal retains discretion to deny prerogative relief and insist that the hearing proceed. The debate over whether a preliminary ruling denying procedural fairness entitles the aggrieved party to prerogative relief virtually as a right or whether the relief may be denied because there is an adequate alternative remedy -- for example, an appeal -- is a familiar one in administrative law. In administrative proceedings, the Supreme Court of Canada has favoured allowing the hearing to proceed. See Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561; Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3; and see also the decision of this court in Howe v. Institute of Chartered Accountants of Ontario (1994), 1994 CanLII 3360 (ON CA), 19 O.R. (3d) 483.
21The typical reasons given for refusing judicial review at the beginning of or during a hearing in the face of an otherwise reviewable wrong include maintaining the integrity of the process, avoiding fragmenting or delaying the proceedings, and the availability of an appeal on a full record.
23Recently, in R. v. Arcand, 2004 CanLII 46648 (ON CA), [2004] O.J. No. 5017, Rosenberg J.A. concluded that the policy considerations outlined by Doherty J.A. in Duvivier apply to proceedings under the POA. And Rosenberg J.A. added at para. 14:
The appellate search for hypothetical error in the middle of a trial defeats not only the integrity of the trial process but also the efficacy of the appeal process. The only efficient way to deal with alleged errors, and the fairest way to both sides, is to wait until the trial is over and then to appeal. From a practical point of view, trials would be endless if mid-trial rulings could be appealed or reviewed.
61Section 140(1) of the Provincial Offences Act permits the Superior Court of Justice on application “to 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”.
62However, the case of R. v. 1353837 Ontario Inc. clarifies that the court should refuse a judicial review midway through a process except in the most blatant and clearest of cases to maintain the integrity of the judicial process and not to fragment proceedings. This court finds no substantial wrong or miscarriage of justice arising from the ruling of Justice of the Peace Bisson. The initial charge in 2012 was for an offence alleged in May 2011. The current charge is for an alleged offence arising October 2, 2015.
63Wakulich in his motion materials has failed to show in his evidence how the 2012 charge regarding the array of solar panels is the same as the construction of a deck in 2015. Further, Wakulich has failed to show how the prior ruling acquitting him of the charge in 2011 now permits him to build a deck in an area controlled by the NPCA without authorization from the NPCA. Further, where a building permit is required from the City, he has failed to show how he is permitted to construct a deck without the required building permit. Justice of the Peace Bisson clearly understood the charges related to the solar panel array and the second set of charges related to the construction of the unauthorized deck. There is no miscarriage of justice in the instant case. The Justice of the Peace clearly understood the position of Wakulich, but found it was without logic and unsupported by the evidence.
The Joining of the Two Matters
64Wakulich seeks that the charges brought by the City be tried together with the charges brought by the NPCA.
65It is clear from the evidence the City has not previously laid charges against Wakulich under the Building Code Act.
66The City’s charge is for alleged noncompliance with the Building Code Act which requires removal of the deck built without a building permit contrary to the Building Code Act. This is different from the charge of the NPCA which arises from a different statutory scheme.
67Therefore, in conclusion, the NPCA and the City have separate and distinct statutory mandates. The evidence is not substantially the same for both. There may be minor overlaps in each of the offences. However, the witnesses are likely to be different. The City and the NPCA have different trial counsel. I conclude that the joining of the two matters would unnecessarily complicate matters and not promote the administration of justice. Therefore, it is reasonable for each matter to proceed by way of separate trial in the Ontario Court of Justice.
The Granting of an Extension to Appeal the Ruling of Bisson
68Wakulich seeks an extension of time to appeal the decision of Justice of the Peace Bisson dated December 5, 2016.
69Section 116(1) of the Provincial Offences Act, states 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;
(c) a finding as to ability, because of mental disorder, to conduct a defence;
(d) a sentence; or
(e) any other order as to costs. 2009, c. 33, Sched. 4, s. 1 (54).
70The respondents submit that based on the legislation, there is no appeal available from the interlocutory order of the Justice of the Peace.
71Wakulich states he was not given the opportunity to properly present his case before the Justice of the Peace. Therefore, he should be granted the opportunity to appeal the decision of Justice of the Peace Bisson.
72Wakulich states in his application that the Justice “failed to understand the similarities and distinction of the two sets of prosecutions”. Wakulich suggests the Justice took no steps to review the details of the two sets of charges against him. A reading of the transcripts which I have already referenced confirms the exact opposite.
73The court concludes that there should be no appeal under the circumstances from the interlocutory order of Justice of the Peace Bisson. Wakulich is merely seeking an avenue to reargue motions which have already been heard by the court. This would be an abuse of process and cannot be in the interests of the administration of justice.
Conclusions
74The court concludes that there is no evidence brought forth by Wakulich to support the relief sought by him.
75It is in the interests of justice for each of these matters to proceed to trial separately.
Orders Made
76The following orders are made:
(1) The application of the applicant is dismissed in its entirety.
(2) The Conservation Authorities Act charge shall forthwith be set for a separate trial in the Ontario Court of Justice.
(3) The Building Code Act charge shall forthwith be set for a separate trial in the Ontario Court of Justice.
(4) The applicant is not permitted to bring further motions before the trials of these matters are concluded.
Costs
77Costs submissions may be made in writing pursuant to s.142(5) of the Provincial Offences Act and are limited to two pages, plus any applicable bill of costs and/or offers to settle. The respondents’ submissions are due November 10, 2017. The applicant’s are due November 24, 2017. No reply is permitted. If submissions are not received as per the deadline above, submissions will not be considered.
Maddalena J.
DATE: October 26, 2017
CITATION: Wakulich v. Niagara Peninsula Conservation Authority, 2017 ONSC 6435
COURT FILE NO.: CR4526/17
DATE: 2017/10/26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: William Wakulich, Applicant
AND: Niagara Peninsula Conservation Authority and The Corporation of the City of St. Catharines, Respondents
BEFORE: Justice T. Maddalena
COUNSEL: William Wakulich,
Self-represented
Philip J. Kennedy,
for the Respondents
ENDORSEMENT ON MOTION
Maddalena J.
DATE: October 26, 2017
Footnotes
- Transcript of December 5, 2016, Exhibit P to the Affidavit of Peter Graham, sworn June 29, 2017, pp. 5-15 inclusive.
- See paragraph 5.
- See s.28(16) of the Conservation Authorities Act, R.S.O. 1990, c. 27
- RSO 1990, c P.33