The Corporation of the Town of Ajax v. Ajax Auto Recyclers Ltd. et al.
OSHAWA COURT FILE NO.: 1020/17
DATE: 20180413
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Corporation of the Town of Ajax, Plaintiff
AND:
Ajax Auto Recyclers Ltd., Ajax Recycling Depot Ltd., Ajax Auto Wreckers (2003) Inc. and Steven Monaghan, Defendants
BEFORE: Justice D. Salmers
COUNSEL: T. Gordner, counsel, for the Defendants/moving parties
C. Murkar, counsel, for the Town of Ajax, Plaintiff/responding party
H. Gibbs, counsel for the Environmental Review Tribunal, Intervenor
HEARD: January 31, 2018
ENDORSEMENT
Nature of the Motion and the Parties’ Positions
[1] The defendants move for an order staying both this action and an appeal before the Environmental Review Tribunal (ERT). The defendants are also being prosecuted in the Ontario Court of Justice (OCJ) for alleged by-law infractions. The Town of Ajax (the Municipality) is the prosecuting party in all three proceedings. The defendants argue that the stays are necessary to protect their rights to a fair trial and against self-incrimination in the OCJ prosecution. The defendants further argue that the stays of proceedings are necessary because the multiplicity of proceedings initiated by the Municipality is a misuse of judicial and administrative procedures, duplicative, and may result in inconsistent findings of fact, double recovery and constitute an abuse of process.
[2] The ERT submitted that there are available procedures and powers within its scope that could effectively grant the relief sought against the ERT and, therefore, this court should not grant that relief. The ERT further argued that there are sufficient protections available to the defendants so that the ERT proceeding can proceed at the same time as the OCJ prosecution without compromising the defendants’ rights to a fair trial or their rights protecting against self-incrimination in the OCJ prosecution. Accordingly, the ERT submitted that the ERT proceeding should not be stayed.
[3] The Municipality submitted that there are differences in the relief available to the Municipality in the three different proceedings. Further, the Municipality argued that there are sufficient protections available to the defendants so that all three proceedings can proceed and the requested stays are unnecessary. The Municipality did state that it is willing to hold this action in abeyance if the ERT proceeding is allowed to continue.
Analysis
The Requested Stay of this Action
[4] The Municipality stated that it has no intention of seeking any relief in the ERT proceeding or this action that would result in double recovery.
[5] I have considered the procedures and rules of evidence of the ERT and this court, the available pleadings (including the ERT order) in both the ERT proceeding and this action, the relief sought by the Municipality and the relief available to the Municipality in the ERT, in this action, and in the OCJ prosecution. Having done so and considering the Municipality’s undertaking not to seek double recovery, I am satisfied that it would be unnecessarily duplicative if both the ERT proceeding and this action were to proceed. It is unreasonable in these circumstances to put the defendants to the additional cost and time of largely duplicative proceedings in which there are always the risks of inconsistent findings of fact and inconsistent outcomes.
[6] For those reasons and In light of these findings and the Municipality’s willingness to hold this action in abeyance pending the conclusion of the ERT proceeding, this action will be temporarily stayed.
The Requested Stay of the ERT Proceeding
[7] A stay is an extraordinary or exceptional remedy.[^1] There is a presumption against granting a stay.[^2] The fact that the OCJ and ERT proceedings are both in progress is not a sufficient reason for staying the ERT proceedings. To obtain a stay of the ERT proceedings, the defendants must show some specific or particular way in which they will be prejudiced in the OCJ prosecution.[^3]
[8] The defendants submitted that there is already evidence that the Municipality’s employees or agents involved in all three proceedings have already shared information, including information coming from the defendants. Accordingly, the defendants argued that it is reasonable to infer that that sharing of information will continue and result in unfairness to them in the OCJ prosecution and, possibly, compromise their rights against self-incrimination. The defendants further argued that the sharing of information might enable the Municipality to obtain and introduce evidence in the OCJ prosecution that would not otherwise have been obtainable. The defendants submitted that such derivative evidence might not be detectable by the trial judge thereby causing further trial unfairness to the defendants in the OCJ prosecution.
[9] For the following reasons, I do not accept the defendants’ position.
[10] One concern of the defendants is that any statements they may make or documents tendered by them in the ERT proceeding may be used in the OCJ prosecution thereby violating their rights to be protected against self-incrimination in the OCJ prosecution. The defendants have not satisfied me on a balance of probabilities that this concern will cause prejudice to the defendants in the OCJ prosecution. There are several protections available to the defendants which protect their rights against self-incrimination. In particular, I refer to the Ontario Evidence Act,[^4] s. 9, the implied undertaking rule, the deemed undertaking rule (Rule 30.1.01), and sections 14 and 15 of the Statutory Powers Procedure Act.[^5] If this action is temporarily stayed as earlier discussed and the ERT proceeding continues, I am satisfied that those protections alone are sufficient to address the defendants’ concerns and protect their rights against self-incrimination in the OCJ prosecution.
[11] Additionally, I am not satisfied that there is any merit to the defendants’ concern and submission about derivative evidence. The defendants have not satisfied me on a balance of probabilities that neither they nor the OCJ trial judge will be able to detect when the prosecution tenders evidence that has been obtained as a result of a breach of a defendant’s Charter rights. In fact, the defendants have already found information which they submit indicates that various employees or agents of the Municipality, involved in the three different proceedings, have been sharing information. However, there is insufficient, if any, evidence to suggest that such sharing was contrary to any Charter rights of a defendant. Further, the defendants have not persuaded me that this OCJ prosecution is different than other criminal or quasi-criminal prosecutions. The defendants have not persuaded me that the OCJ trial judge’s rulings on admissibility of evidence will be affected by the fact that the ERT proceedings will be continuing while the OCJ prosecution winds its way through the court.
[12] For those reasons, the defendants have not satisfied me that any prejudice to any or all of them is sufficient to render this an extraordinary or exceptional situation where a stay of the ERT proceedings must be granted.
Conclusion
[13] For all of these reasons, it is ordered:
this action is temporarily stayed until further order of this court;
the request to stay the ERT proceeding is dismissed;
this motion is otherwise adjourned pending completion of the ERT proceeding after which it may be made returnable on 14 days’ notice to consider continuation of the stay and any other or further relief requested in this motion; and
if the parties cannot agree on costs, they are to contact the Oshawa trial coordinator to schedule a costs hearing before me.
Order to go accordingly.
Justice D. Salmers
Date: April 13, 2018
[^1]: Falloncrest Financial Corp. v. Ontario, 1995 2934 (ON CA), [1995] O.J. No. 4043 (Ont. C.A.) at para 14. [^2]: Schreiber v Canada, 2001 20859 (ON CA), [2001] O.J. No. 4778 (Ont. C.A.) at para 43. [^3]: Stickney v. Trusz, 1973 423 (ON SC), [1973] O.J. No. 2279 (Ont. C.A.) at para 12. [^4]: R.S.O. 1990, c. E.23. [^5]: R.S.O. 1990, c. S.22.