COURT FILE NO.: 772/14 (Guelph)
DATE: 2018 05 09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Attorney General of Ontario
Lisa Will for the Applicant
Applicant
- and -
9327 Road 3 North, Town of Minto
Keshav Agnihotri for the Respondent
Respondent
HEARD: December 8, 2017, at Guelph
REASONS FOR DECISION
Emery J.
[1] The Crown seeks an order for the forfeiture of a rural property having the road address of 9327 Road 3 North, Town of Minto (hereinafter the “Minto property”) under the Civil Remedies Act, 2001 (the “CRA”). The Minto property consists of 24 acres that are located deep in the heart of Wellington County.
[2] The Minto property is owned by Mr. Leslie Tyszko, a man now 58 years old. Mr. Tyszko has lived in St. Catharines, Ontario at all material times to the facts on which the Crown brings this application.
[3] The Ontario Provincial Police (the “OPP”), acting on a confidential tip, obtained and executed a general warrant to search the Minto property during the early hours of August 30, 2013. OPP officers found what has been described as a “grow operation” on the Minto property. Those officers report that they found 723 mature plants they described as the “cannabis” or “marijuana” type as a result of the search.
[4] Mr. Tyszko was charged with production of a controlled substance, and possession of a controlled substance for the purposes of trafficking, contrary to section 7(1) and section 5(2) of the Controlled Drugs and Substances Act (CDSA). These charges were later withdrawn once the Crown formed the opinion that there was no reasonable prospect of conviction against Mr. Tyszko.
[5] The Attorney General of Ontario now brings this application for forfeiture of the Minto property on the grounds that it is either the proceeds of an unlawful activity under section 3, or an instrument of unlawful activity under section 8 of the CRA.
[6] The Attorney General of Ontario further submits that no statutory exception to forfeiture under the CRA applies to relieve the property from being forfeited to the Crown.
[7] The Attorney General alleges no prior criminal record against Mr. Tyszko in the course of this application.
Background Narrative
[8] The tip from a confidential source in 2013 informed the OPP that the informant believed marijuana was growing on the Minto property. Based on this tip, OPP officers checked property records and learned that officers had previously discovered and destroyed 1,360 mature marijuana plants they had found growing on the Minto property in September 2009.
[9] OPP officers obtained a general warrant to search the property. This general warrant was executed on the Minto property during the early morning hours of August 30, 2013. According to the evidence filed on the application, officers located “a large plot of marijuana plants” growing along the river bank during the search. Officers that took part in the search have given evidence that they discovered a well-travelled path between the “plot of marijuana plants” and the cabin.
[10] The OPP obtained a same day telewarrant pursuant to section 11 of the CDSA to search the structures on the Minto property. This warrant was executed later that morning.
[11] When the OPP officers arrived to execute the telewarrant, they observed the gate across the driveway to the Minto property had been locked shut with a chain and a padlock. OPP officers cut the chain to gain entry to the Minto property.
[12] The OPP found no person on the property at the time either warrant was executed. However, officers observed that the grass on the property appeared freshly cut. This suggested to them that someone had been at the Minto property recently.
[13] Officers searching the Minto property counted 723 mature plants. They also observed holes in the ground consistent with the appearance of soil after plants have been harvested.
[14] The affidavit material filed by the Crown also described the following observations made by the officers on those searches:
• Some of the marijuana plants were planted directly in the soil, and others were in Styrofoam cups and plastic containers that were then planted.
• In the cabin located on the Minto property, rubber boots and two plastic bottles filled with fresh water were found.
• In a garbage can in the cabin, officers located four Styrofoam cups. These cups had dirt residue on them, and had the bottoms cut out.
• Officers noticed the smell of burnt marijuana in the trailer located adjacent to the cabin.
• Three bags of garden soil and one container of what appeared to be Miracle Grow fertilizer were found in a shed on the property.
• As officers concluded the search, Detective Constable Smith observed pieces of wood with long protruding spikes pointing upward in the grass along the fence line.
[15] Mr. Tyszko was subsequently charged with production of a controlled substance under section 7(1) of the Controlled Drugs and Substances Act. He was also charged with possession of a controlled substance for the purpose of trafficking, contrary to section 5(2) of the CDSA. These charges were later withdrawn in July, 2014.
[16] Police also located a bundle of cash totaling $500 in Mr. Tyszko’s truck on September 12, 2013. When an investigating officer noted that the cash was consistent with how drug dealers bundle money, Mr. Tyszko advised the officer that some of the money was his and some of the money was ear marked to pay school tuition for his daughter.
[17] Mr. Tyszko has taken the position on this application that he did not know about the “grow operation” found on the Minto property in September 2009, or the “grow operation” discovered on August 30, 2013 until he was charged in September 2013.
[18] Mr. Tyszko states that if he had known about either grow operation, he would have inspected the Minto property more frequently.
Analysis
[19] An application under the CRA is a proceeding in rem, being a claim against the thing rather than against an owner. The statute does not define or create a criminal offence. The purpose of the CRA has nothing to do with the identification, charge or prosecution, conviction or punishment of an offender. It does not seek to impose a fine, penalty or other punishment, and does not provide for imprisonment: Ontario (Attorney General) v. Chatterjee, [2007] O.J. No. 2012 (Ont. C.A.), affirmed at 2009 SCC 19, 2009 SCC 19 (SCC).
[20] The Ontario Court of Appeal applied the same principles in Ontario (Attorney General) v. 1140 Aubin Road and 3142 Halpin Road, Windsor (In Rem), 2011 ONCA 363. In that case, the appeal was from an order concerning the forfeiture of properties as proceeds of unlawful activity. The court held that the only threshold question for the court to determine was whether the property at issue was the proceeds of an unlawful activity. If the court found that threshold was met, the applicant would be entitled to an order of forfeiture, subject to the narrow exceptions under section 8 of the CRA.
[21] The CRA defines the term “instrument of unlawful activity” in paragraph 7(1) to mean “property that is likely to be used to engage in unlawful activity that, in turn, would be likely to or is intended to result in the acquisition of other property…” This definition includes any property that is realized from the sale or other disposition of such property. The term “unlawful activity” is defined in the same way as that term is defined with respect to the requirements for a forfeiture order of property that is found to be proceeds of an unlawful activity.
[22] It is an offence to traffic in a controlled substance or to possess that substance for the purpose of trafficking under section 5(1) and (2) of the CDSA. It is also an offence to grow or to produce a controlled or unlawful substance under section 7(1) of the CDSA. Any activities contrary to these sections would properly be considered unlawful activities.
[23] The standard of proof to determine whether property is an instrument of unlawful activity is on the balance of probabilities. As in all civil cases, the application judge is required to scrutinize the relevant evidence to determine whether it is more likely than not that an alleged event or set of circumstances has occurred. It has been held that similar fact and propensity evidence is admissible in civil proceedings to make the necessary findings under the CRA: F.H. v. McDougall, [2008] SCC 53 and A.G. v. $5,545 in Canadian Currency (In Rem), [2011] O.J. No. 2190. In this case, the onus is on the Attorney General as the applicant to prove it is entitled to forfeiture of the property on the balance of probabilities.
[24] The courts have held that evidence of how property has been used in suspicious or unlawful circumstances in the past can be relevant to determine whether that property is an instrument of unlawful activity. Where property such as money has been used for unlawful activity in the past, such as to purchase drugs, and the evidence supports the likelihood that money found in similar circumstances will likely be used for the acquisition of more drugs, the Attorney General has met the test of establishing that the property is an instrument of unlawful activity: Ontario (Attorney General) v. Jinarern, [2005] O.J. No. 6008 (SCJ), and Ontario (Attorney General) v. 170 Glenville Road, King (in rem), [2010] O.J. No. 2865 (SCJ).
Proceeds of an unlawful activity
[25] I am dismissing outright the Crown’s application that seeks forfeiture of the Minto property on the basis that it represents the proceeds of an unlawful activity under section of 3 of the CRA. There is no evidence whatsoever that any proceeds from an unlawful activity were used to purchase the Minto property.
[26] There is also no evidence to suggest, let alone to support the claim that proceeds from any unlawful activity were used to pay down the charge Mr. Tyszko had granted to Meridian Credit Union as the only encumbrance registered against title to the Minto property.
[27] The Crown has not proven that money used to purchase or to pay the mortgage against the Minto property is connected with any unlawful activity. To the contrary, Mr. Tyszko has given evidence that he is gainfully employed as a tool setter at General Motors in St. Catharines. He has worked at General Motors since May 12, 1985. He earns income from that employment from which to make his mortgage payments.
Instrument of an unlawful activity
[28] The submissions made by counsel on this application were primarily, if not entirely focused on whether the Minto property was an instrument used for an unlawful activity under section 8 of the CRA. I consider the question of whether the Minto property was used as an instrument of an unlawful activity to be the sole issue for determination on this application.
[29] The Crown asserts that Mr. Tyszko has not put forward any evidence that would explain who could have planted marijuana on the Minto property, or to explain the well-travelled path between the cabin and the marijuana plants, along with soil covered Styrofoam cups and the bottles of fresh water in the cabin. To require Mr. Tyszko to provide this kind of evidence would be to shift the burden of proof under section 8 that the property has been used as an instrument of an unlawful activity to Mr. Tyszko, when that onus remains with the Crown.
[30] I find that the Crown has not discharged the burden of proof that the Minto property was used as an instrument of an unlawful activity at all. For the Crown to prove that the Minto property was used during 2013 as an instrument of growing and producing marijuana as the unlawful activity, it must prove that the officers who raided the Minto property in August 2013 found and seized marijuana plants.
[31] Detective Constable Jennifer Foley swore an affidavit in support of the application. Detective Constable Foley’s affidavit is based on information provided by other law enforcement officers who were involved in the searches. In that affidavit, Detective Constable Foley describes the information she received in connection with the plant material seized from the Minto property on August 31, 2013. It appears from Detective Constable Foley’s affidavit that she is the instructing authority to counsel at the Crown’s office for the purpose of bringing this application under the CRA.
[32] Detective Constable Foley set out facts in her affidavit that the officers executing the warrant on August 30, 2013 discovered a plot of 723 mature marijuana plants growing along the river on the Minto property. She states in paragraph 27 of her affidavit that “Health Canada confirmed that the plants were cannabis marijuana.”
[33] The Crown introduced the evidence of Detective Sergeant Bradley Durfy, a highly qualified police officer, as an expert. Detective Sergeant Durfy has been qualified in previous cases as an expert to give evidence about various drugs including marijuana, the pricing of marijuana, the value of marijuana grow equipment, and the production, distribution, sale and trafficking of marijuana.
[34] It does not appear from Detective Sergeant Durfy’s affidavit that he actually attended at the Minto property when either warrant was executed, or at all. It further appears from his affidavit that he has never examined the actual plant material seized from the Minto property by OPP officers on August 30, 2013.
[35] The affidavit of continuity in the name of Sergeant P.G. Horrigan dated January 24, 2014 attached as Exhibit Q to the affidavit of Detective Constable Foley is neither signed or sworn. This is the only document that describes when the police received samples of plant material back from Health Canada, along with the Certificate of Analysis. The Certificate of Analysis itself is not included in the application materials filed by the Attorney General.
[36] Although Mr. Tyszko acknowledges that 723 plants were seized from the Minto property on August 30, 2013, the Attorney General has the onus of proving each element of the statutory claim as the applicant. Aside from the general description of various affiants that the 723 plants removed by the OPP were marijuana plants, there is no evidence given by an expert or by Health Canada that the plant material seized on that day was actually cannabis or marijuana.
Was Mr. Tyszko a Responsible Owner?
[37] In the event that I am in error by holding that the Crown has not proven the 723 plants seized by the OPP on August 30, 2013 were marijuana, Mr. Tyszko submits that he was a responsible owner of the Minto property. He submits that as a responsible owner he is entitled to claim the exception to forfeiture under section 8 (3) of the CRA.
[38] Mr. Tyszko has the onus of proving on the balance of probabilities that he is entitled to the statutory exception from forfeiture as a responsible owner. This onus was confirmed by the court in Ontario (Attorney General) v. Chow, [2003] O.J. 5387, where Crane J. reached that conclusion by stating:
33 The Act is silent on onus. Given the structure of the Act, I find the principle of "he who asserts, must prove", does apply. It would be unworkable for the Crown, as applicant, to disprove a respondent's ownership interest. If the burden was on the Crown, a respondent would need only to file an affidavit stating ownership, simpliciter and the Crown would be bound to prove the contrary concerning a respondent who may well be a stranger to it.
[39] The term “responsible owner” is defined in section 7 of the CRA as a person having an interest in the property who has done all they can reasonably be done to prevent that property from being used to engage in an unlawful activity. This preventative conduct would include:
(a) promptly notifying appropriate law enforcement agencies whenever the person knows or ought to know that the property has been or is likely to be used to engage in unlawful activity, and
(b) refusing or withdrawing any permission that the person has authority to give and that the person knows or ought to know has facilitated or is likely to facilitate the property being used to engage in unlawful activity; (“propriétaire responsable”)
[40] The Crown constructed the framework within which Mr. Tyszko would be required to provide evidence to show on the balance of probabilities that he was a responsible owner when the Crown argued that:
Mr. Tyszko did not promptly notify law enforcement agencies when he knew or ought to have known the Minto property had been or was likely to be used for an unlawful activities;
He did not insure the Minto property; and
Mr. Tyszko did not refuse or withdraw permission for his friend, Leonard Ceniccola, from using the Minto property to facilitate or engage in an unlawful activity.
- Trespassers a known occurrence
[41] Mr. Tyszko had no reason to report the trespassing and theft from the Minto property because a couple interested in purchasing it from him moved onto it to live after 2009. Mr. Tyszko entered an agreement in or around 2010 to sell the Minto property to Ronald Hilts and Lori Fiwka. Those individuals assumed responsibility to make the mortgage payments against the property without providing the $50,000 down payment they were to make under the agreement.
[42] Mr Hilts and Ms. Fiwka lived on the Minto property until December 2011, when they decided not to purchase the property.
[43] The Crown also refers to the discovery of planks with nails sticking up from them placed at strategic areas around the entrance gate to the property. Ms. Fiwka gave the following evidence when she was cross-examined on her affidavit:
a) Ms. Fiwka and Mr. Hilts first visited the property in May 2009, and took over the mortgage payments to Meridian Credit Union from 2010 to December 2011;
b) While living on the property, Ms. Fiwka and Mr. Hilts experienced multiple instances of trespassing and theft. Ms. Fiwka described how trespassers would cut the chain on the front gate to gain entry to the property. She described how she and Mr. Hilts would have tools and clothing stolen by trespassers;
c) When Ms. Fiwka and Mr. Hilts locked their possessions in the cabin for safe keeping, trespassers would break into the cabin to steal those items;
d) Ms. Fiwka advised a neighbor, who was a police officer, that items had been stolen from them by trespassers on the property. Neither Ms. Fiwka or Mr. Hilts formally reported the theft or trespassing to the local police. Instead, Ms. Fiwka and Mr. Hilts took precautionary measures of their own. They would lock the gate and place boards with nails protruding out of them at various places where trespassers would enter the property with vehicles to puncture the tires of trespassing vehicles;
e) Ultimately, Ms. Fiwka advised Mr. Tyszko that they did not want to purchase the property, in part because of the frequent trespassing and theft.
[44] After Ms. Fiwka and Mr. Hilts vacated the property, Mr. Tyszko put a chain and padlock around the front gate to keep trespassers out.
[45] This court finds that Mr. Tyszko’s evidence about why he did not report instances of trespassing, theft and vandalism to the police was reasonable under all of the circumstances. Ms. Fiwka gave evidence that she did not file a formal report of property theft or vandalism because she had spoken about it to a neighbour, who happens to be a police officer. This evidence is consistent with the evidence given by Mr. Tyszko that the occurrence of theft and vandalism in the area is known to the police. It is not likely a formal report on a particular incident of loss or damage to property would have added to this knowledge, and would not have prevented those incidents from re-occurring.
- No Insurance Explained
[46] The Crown argues that Mr. Tyszko did not conduct himself a responsible owner of the Minto property because he did not insure it. The Crown argues that Mr. Tyszko should have insured the property because of numerous acts of vandalism to the property and surrounding properties that Mr. Tyszko knew about.
[47] Mr. Tyszko argues that there was no reason to insure the property because there was little of value to insure. The Minto property consisted of the acreage, a shed, a cabin and a trailer that had been left by Ms. Fiwka and Mr. Hilts who lived on the Minto property in 2010 and 2011 with a view to purchasing it from Mr. Tyszko.
[48] While it may have been unwise for Mr. Tyszko to leave himself exposed to liability if someone was injured on his property, he has the right as a property owner to decide whether or not to insure the property he owns for third party coverage. The Minto property was essentially vacant land. The Court heard little evidence on the value of the shed, cabin and trailer. From the description of them in the affidavits filed, there was no significant structure on the Minto property to insure for indemnity or for replacement value.
[49] I accept the explanation put forward by Mr. Tyszko about why he did not purchase insurance coverage for the Minto property. The property had no building or structure of value to insure.
- Mr. Ceniccola
[50] There is no evidence before the court that Mr. Tyszko was physically present on the Minto property between April and September 2013. Nonetheless, the Crown asserts that Mr. Tyszko permitted others the use of the Minto property as an instrument of an unlawful activity.
[51] The Crown seeks to establish this connection by filing evidence that he permitted another friend, Leonardo Ceniccola, to use his Chevrolet pickup truck on a previous occasion when Mr. Ceniccola was found with cannabis plants in the bed of the truck. Mr. Ceniccola was arrested with another man while driving this truck in July of 2009 after he was stopped by Niagara Regional Police in Welland. At that time, 59 marijuana plants were found in the truck. The truck was impounded as a result.
[52] The Crown has filed further evidence that in April or May 2010, Mr. Ceniccola was arrested again after police observed him visiting two houses in St. Catharines in which the police found a marijuana “grow-op” in one or both locations. Even though it was not used for any reason related to that unlawful activity, the truck was impounded as Mr. Ceniccola was driving that vehicle between those houses.
[53] Mr. Tyszko explains in his evidence that he has permitted Mr. Ceniccola to drive his truck since 2005. The truck is registered in Mr. Tyszko’s name because Mr. Ceniccola has an insurance related issue, which I take to mean he cannot obtain motor vehicle insurance at a reasonable rate himself. Mr. Tyszko explained in his affidavit that he agreed to allow Mr. Ceniccola to drive the truck when he needed it. Mr. Tyszko describes in his evidence that, for all practical purposes, Mr. Ceniccola has driven the truck since 2007 as though it was his own.
[54] When the truck was released after it was impounded in July 2009, Mr. Tyszko allowed Mr. Ceniccola to continue driving it after he cautioned Mr. Ceniccola that must not be used for unlawful purposes. On that occasion, Mr. Tyszko had learned about the circumstances in which the truck was impounded from the police. Mr. Tyszko was neither investigated nor charged for any unlawful activity as a result of Mr. Ceniccola’s conduct.
[55] The Crown submits that Mr. Tyszko is somehow involved in the growing and production of marijuana on the Minto property because he has allowed Mr. Ceniccola to drive his truck in St. Catharines since 2005. Mr. Ceniccola has been arrested on two occasions in the Niagara area where he was driving the truck and marijuana plants were found.
[56] Mr. Tyszko deposes that he did not entrust the maintenance of the Minto property to Mr. Ceniccola in 2013, or at any other time.
[57] Detective Constable Foley also conceded in her cross-examination that Mr. Tyszko’s truck that would customarily be driven by Mr. Ceniccola in the Niagara Region played no part in the growing or removal of any plant material on the Minto property in 2013.
[58] It was further conceded by Detective Constable Foley that Mr. Ceniccola was never observed around the Minto property.
[59] I find the Crown’s evidence that relies on the fact that Mr. Tyszko allowed Mr. Ceniccola to drive his truck on previous occasions when Mr. Ceniccola was arrested does not meet the civil standard of proving that Mr. Tyszko had knowledge of any plant growing activities on the Minto property. There is no evidence before this court to suggest, let alone establish that Mr. Ceniccola was involved in any way with the growing of a crop of any kind on the Minto property in 2009, or in 2013.
[60] The Crown has not proven that Mr. Tyszko had knowledge of an unlawful activity occurring on the Minto property simply because Mr. Tyszko for one reason or another allowed Mr. Ceniccola to drive his truck for a number of years. From all accounts, Mr. Ceniccola only operated the truck in and around the Niagara region. There is no evidence before the court that Mr. Ceniccola or the truck was operational at any time in Wellington County during the spring and summer of 2013.
Finding Mr. Tyszko a responsible owner
[61] I conclude that Mr. Tyszko has met the burden of proof required of him to prove that he is entitled to the exception from liability under the CRA as a responsible owner. The Crown has provided little, if any evidence to contradict Mr. Tyszko’s evidence in which he provided reasonable explanations as to why he did not insure the Minto property. I also accept his reasons for not taking steps to have it inspected more than he did during the time Mr. Fiwka and Mr. Hilts were intending to purchase the property, and after they decided against it in late 2011.
[62] Mr. Tyszko gave evidence that he was never contacted in anyway by any law enforcement agency about the alleged marijuana plants growing on the Minto property in 2009. He states that if he had been made aware of the unlawful activity allegedly occurring on the Minto property in 2009, he would have taken different steps to have the property monitored for unlawful activity.
[63] The Crown concedes that law enforcement services having knowledge of the confiscation of plant material from the Minto property in 2009 at no time made Mr. Tyszko aware that plant material considered to be marijuana had been removed from the property.
[64] Mr. Tyszko submits that he would have cooperated with police if he had known it was being used for an unlawful activity such as growing marijuana plants.
[65] I find as a fact that Mr. Tyszko did not know that the Minto property had been, or was likely to be used to engage in an unlawful activity. I further find that he acted at all material times as the responsible owner of rural property in that location under all of the circumstances.
Would Forfeiture clearly not be in the interests of justice?
[66] The Attorney General submits that there are no “interests of justice” considerations for the court to consider against issuing an order for the forfeiture of the Minto property.
[67] In Ontario (Attorney General) v. 8477 Darlington Crescent et al (Darlington Crescent), the Court of Appeal held that the word “clearly” in section 3(1) of the CRA, which deals with the proceeds of unlawful activity, modifies the phrase “interests of justice” to mean that the scope of the forfeiture power given to the court under the CRA should be subject to narrow circumstances where, on a reasonable view, forfeiture would be a draconian and unjust result. In this way, the legislature left it up to the court to determine on a case by case basis when forfeiture would “clearly not be in the interests of justice”.
[68] The Darlington Crescent case concerned a situation involving the proceeds of unlawful activity. The Court defined three non-exhaustive factors to consider when exercising the discretion to apply the exception where forfeiture would clearly not be in the interests of justice:
a) The conduct of the party whose property is the subject of the forfeiture application;
b) The disparity between the value of the property that is proceeds of unlawful activity and the value of the property sought to be forfeited;
c) The interplay between the purposes of the CRA and the exercise of the discretion to relieve from forfeiture.
[69] The court in Darlington Crescent stated that in such circumstances, relief from forfeiture would very much be the exception and should be granted only where the party seeking the exception clearly makes the case that forfeiture would lead to an unequitable and unjust result. The court also stated that “a party whose conduct is not seen as reasonable cannot hope to obtain relief from forfeiture”.
[70] Mr. Tyszko states in his affidavit that he never made a trip to the Minto property between April and September 2013. He gave evidence that he asked his friend, Glenn Riggs, to visit the property on one occasion to check it out. Mr. Riggs visited the property in early June 2013 as requested. There is no evidence before the court that Mr. Riggs observed resembling a grow operation at that time. He simply cleaned up the property a bit and returned to St. Catharines. According to Mr. Tyszko, Mr. Riggs did not say anything about the Minto property after he returned.
[71] In support of this submission, Mr. Tyszko also deposes that he suffered a work related injury on the job at General Motors in April 2013. As a result, he was unable to do anything physical work in the spring and summer of 2013 due to that injury.
[72] Mr. Tyszko filed the affidavit of Gerry Weerheim, who described how he was employed by Mr. Tyszko to provide maintenance work and yard work at Mr. Tyszko’s home in St. Catharines after he was injured in April 2013.
[73] Mr. Weerheim states in his affidavit that Mr. Tyszko was unable to walk or to do any work as a result of this injury.
[74] The CRA serves as a deterrent to the use of property for current and future unlawful activities. At Justice Bennie explained in Chatterjee,
[23] In essence, therefore, the CRA creates a property-based authority to seize money and other things shown on a balance of probabilities to be tainted by crime and thereafter to allocate the proceeds to compensating victims of and remedying the societal effects of criminality. The practical (and intended) effect is also to take the profit out of crime and to deter its present and would-be perpetrators.
[75] When I consider the evidentiary record, I find that it would not be in the interests of justice to make the order of forfeiture. The Crown has not met its burden of proof to show on the balance of probabilities that Mr. Tyszko had any role in growing plants of any description on the Minto property in 2013. To take the Minto property from him for reasons that have no connection to Mr. Tyszko or by reason of any conduct that cannot be attributed to him would be to deprive him of the property he rightly owns. I am of the view that to make an order of forfeiture in these circumstances would be unfair and unjust.
[76] I find that an order of forfeiture, on the particular circumstances of this case, would not serve the purposes of the CRA that Justice Binnie identified in Chatterjee. There is no evidence before this court that forfeiture will deter any criminality associated with Mr. Tyszko’s stewardship of the Minto property, or deprive present or would be perpetrators of any profit from unlawful activity. In the words of the Court on the appeal of 1140 Aubin Road, an order for the forfeiture of the Minto property would be “manifestly harsh”. I therefore conclude, having regard to all of the circumstances, that to make an order for the forfeiture of the Minto property would clearly not be in the interests of justice.
[77] The application of the Attorney General of Ontario is therefore dismissed.
Costs
[78] The parties filed their respective submissions on costs in sealed envelopes at the hearing. After completing my reasons, I opened those envelopes to consider the submissions exchanged by the parties.
Entitlement to costs
[79] Both sides have served offers to settle. The offer to settle from the Attorney General is predicated on a successful outcome, and is therefore of no application. However, I find it relevant for the purpose of assessing the importance of the application and the amount involved from the Crown’s perspective.
[80] In the offer to settle, the Attorney General offers to accept payment of $40,000 as a substituted asset for the Minto property. I conclude from this position that to the Crown, this was a case about imposing a $40,000 penalty through the forfeiture process if liability was found under the CRA.
[81] There is no reason to depart from the custom of awarding costs to the successful party on this application. Therefore, Mr. Tyszko as the owner of the Minto property is entitled to costs for successfully opposing the application. The question is at what level, and for how much.
Scale and Quantum
[82] Mr. Tyszko claims costs in the amount of $32,270.82 for fees, $1,250 for his counsel’s fee to argue the application, disbursements of $1,616.96, and HST. It is unclear at what level he claims costs as the hourly rate for partial indemnity and the actual rate given in the costs outline for Mr. Agnihotri and his law clerk of $200 and $70 respectively are the same.
[83] The Attorney General requested costs at a partial indemnity level of $15,156, or on a substantial indemnity basis in the amount of $20,048.84, inclusive of disbursements.
[84] I do not consider Mr. Tyszko to have a claim for costs at a higher level because his offer to settle contains a term that “The 30-day appeal period of any such Order shall be waived.” As the offer was never accepted, this term was never agreed upon. The right of appeal remains open to either party within the time prescribed by law.
[85] Mr. Tyszko shall have his costs, but only at the partial indemnity level. I consider the hourly rates of Mr. Agnihotri at the partial indemnity level to be consistent with rates at that level for counsel in other cases, and that his actual rates would have been higher. It is my view that the rates he has claimed on a partial indemnity scale are reasonable for a lawyer of his call. However, the hours claimed for Mr. Agnihotri’s review and preparation of pleadings and the time claimed for “Affidavits” do not distinguish between the time and particulars for those fee items. I am reducing the total time claimed between those functions by 50% to avoid duplication.
[86] I am also deducting the claim for travel and for the attendance at the hearing because Mr. Agnihotri is claiming a counsel fee elsewhere.
[87] Finally, I am trimming the time shown in the costs outline for correspondence between counsel, and meetings with clients and with witnesses. Those communications are arguably subsumed in the review and preparation of application materials for which time is already claimed.
[88] In the result, I am awarding costs to Mr. Tyszko fixed in the amount of $27,500, inclusive of disbursements and HST. I find this to be a fair and reasonable amount to order the Ministry of the Attorney General to pay for costs, in keeping with the principles set out in Boucher v. Public Accountants Council of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.). This award may be more than the amount the Attorney General was seeking for its own costs, but considerably less than the settlement it was expecting if Mr. Tyszko had conceded the Minto property was subject to forfeiture by accepting the Crown’s offer to settle.
EMERY J.
Released: May 9, 2018
COURT FILE NO.: 772/14 (Guelph)
DATE: 2018 05 09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ATTORNEY GENERAL OF ONTARIO
Applicant
– and –
9327 ROAD 3 NORTH, TOWN OF MINTO
Respondent
REASONS FOR DECISION
Emery J.
Released: May 9, 2018