COURT FILE NO.: CV-18-595542 COURT FILE NO.: CV-18-595997 DATE: 20190305

SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-18-595542 RE: SYLVIETTE RITA BROWN, Trustee, GREENWORLD DISABILITY TRUST and GREENWORLD FARMING as Applicable to Property Roll No. 1970 000 012 76100 (Lot 7W Con. 2) Applicants

AND:

DEPARTMENT OF JUSTICE, CANADA, MINISTRY OF THE ATTORNEY GENERAL, ONTARIO, LAKE SIMCOE REGION CONSERVATION AUTHORITY Respondents

COURT FILE NO.: CV-18-595997 AND RE: MURRAY BROWN, and SYLVIETTE RITA BROWN, Trustee, GREENWORLD DISABILITY TRUST and GREENWORLD FARMING as Applicable to Property Roll No. 1970 000 012 76100 (Lot 7W Con. 2) Appellants (Applicants)

AND:

LAKE SIMCOE REGION CONSERVATION AUTHORITY, MINISTRY OF THE ATTORNEY GENERAL, ONTARIO Respondents

BEFORE: Cavanagh J.

COUNSEL: Murray Brown and Sylviette Rita Brown, In Person John A. Olah and Francesca D’Aquila-Kelly, for the Respondent, Lake Simcoe Region Conservation Authority Ravi Amarnath, for the Respondent, Ministry of the Attorney General, Ontario

HEARD: March 4, 2019

ENDORSEMENT

Overview

[1] There are two related proceedings before me: an application and an appeal. In the appeal proceeding, the appellants have brought a motion for interim relief.

[2] Both proceedings relate to convictions for provincial offenses on March 27, 2018 against Murray Brown, one of the appellants, and the sentence given on April 11, 2018 by Justice of the Peace A. Seglins of the Provincial Offenses Court. The convictions are for offenses that relate to certain property at 23621 Park Road, Pefferlaw, Ontario (the “Property”).

[3] The applicants in the application are Sylviette Rita Brown, trustee, Greenworld Disability Trust and Greenworld Farming as applicable to Property Roll No. 1970 000 012 76100 (Lot 7W Con. 2). Murray Brown is not an applicant.

[4] Mrs. Brown as trustee and the Greenworld entities are named as appellants on the appeal. Mr. Brown is also named as an appellant. Mr. and Mrs. Brown are husband and wife.

[5] The respondents to the application and on the appeal are the Lake Simcoe Region Conservation Authority (the “Authority”) and the Attorney General of Ontario (“Ontario”).

[6] The Authority and Ontario have each brought a motion in each of these proceedings to strike out, stay, or dismiss the proceeding.

[7] With respect to the application and the appeal that were commenced by Mrs. Brown as trustee and the Greenworld entities, the Authority and Ontario submit that they have no standing to challenge the convictions against Mr. Brown and the sentence given for these convictions.

[8] With respect to the appeal filed in this court by Mr. Brown, the Authority and Ontario submit that the appeal was taken to the wrong court. Section 116(2) of the Provincial Offences Act provides that an appeal from a decision of a justice of the peace shall be to the Ontario Court of Justice presided over by a provincial judge. Therefore, an appeal from the convictions of Mr. Brown and the sentence given by Justice of the Peace Seglins lies to the Ontario Court of Justice presided over by a provincial judge. The Authority and Ontario submit that the appeal to this court is an improper attempt to circumvent section 111(1) of the Provincial Offences Act which provides that a notice of appeal by a defendant shall not be accepted for filing if the defendant has not paid in full the fine imposed by the decision appealed from.

[9] For the following reasons:

a. The application, as amended, is struck out and dismissed on the grounds that the applicants lack standing to seek relief from this court in relation to the convictions against Mr. Brown and the sentence given and, in any event, the application is an impermissible collateral attack on the convictions and sentence. b. The appeal and the motion brought in the appeal proceeding are struck out on the ground that the appeal has been brought in the wrong court and, in any event, Mrs. Brown and the Greenworld entities lack standing to appeal the convictions of Mr. Brown and the sentence.

Procedural background

Amended Application: CV-18-595542

[10] On March 27, 2018, Mr. Brown was convicted of five counts of breach of section 2 of Ontario Regulation 179/06 and section 28 of the Conservation Authorities Act in relation to the Property. On April 11, 2018, Mr. Brown was fined $40,000 ($8,000 per count), and ordered to remediate the Property according to the terms of and within the timelines specified in the restoration plan in the Restoration Order issued on April 11, 2018 (the “Restoration Plan”).

[11] The offenses to which the charges relate occurred in the Central East Region, and the trial was held in Newmarket.

[12] The applicants commenced this application on April 10, 2018. The applicants amended the application on or about August 21, 2018 (the “Amended Application”). In the Amended Application, the applicants seek various relief in relation to the Property including permanent and interlocutory injunctive relief and declaratory relief.

[13] The respondent Lake Simcoe Region Conservation Authority (the “Authority”) attended at Civil Practice Court on May 28, 2018 to obtain a hearing date for a motion to strike / stay or quash the application. Gans J. directed that the Authority’s motion and the applicants’ application (it had not yet been amended) be set for a one day hearing on November 22, 2018. Gans J. directed that the Authority’s motion to strike /stay or quash be heard first, and that the application be heard as the hearing judge directs.

[14] The Authority brought its motion to strike or to stay or dismiss the Amended Application by Notice of Motion dated August 30, 2018.

[15] On November 5, 2108, Ontario brought a separate motion to be heard on November 22, 2018 for an order striking out the Amended Application against it.

Appeal by Mr. Brown and by other appellants: CV-18-595997

[16] On April 17, 2018, one week after the application was commenced, Mr. Brown, Mrs. Brown as trustee, Greenworld Disability Trust and Greenworld Farming as applicable to Property Roll No. 1970 000 012 76100 (Lot 7W Con. 2) filed a document in the Superior Court of Justice in Toronto entitled “Notice of Appeal and Determination of Infringements to Constitutional Rights within the Provincial Offenses Court” (“Notice of Appeal”). The court file number that was assigned to this appeal was CV-18-595542.

[17] The appeals by Mr. Brown and by Mrs. Brown and the Greenworld entities are stated in the Notice of Appeal to be to the Superior Court of Justice from the judgment and sentencing order of Justice of the Peace A. Seglins dated March 27, 2018 and April 11, 2018, respectively.

The Appellants’ motion brought in the appeal proceeding

[18] On July 3, 2018, the appellants and moving parties served a Motion Record in this proceeding for a motion returnable on July 6, 2018. The Motion Record includes a Notice of Motion, the Notice of Appeal, the sentencing and probation orders, several other documents that relate to the appeal, and affidavits sworn by Mr. Brown on April 18, 2018 and July 3, 2018.

[19] In their Notice of Motion, the appellants as moving parties seek:

a. Disclosure and production of information packages in proceedings which were placed before Justices of the Peace on October 2, 2015 and October 29, 2015. These were in relation to the proceedings against Mr. Brown. b. A stay of the enforcement of the sentencing and probation orders imposed by Justice of the Peace Seglins in the proceedings against Mr. Brown. c. A stay of the enforcement of the monetary claim made by the Ministry of the Attorney General which seeks to have revenue Canada withhold Mr. Brown’s Canada pension benefits. d. An order that the sentencing orders and the monetary demands of the Ministry of the Attorney General be stayed until “the Fresh as Amended Notice of Appeal and Constitutional Issue be dealt with to its finality and law”. e. An order that the Appeal be heard in Toronto by way of the Superior Court of Justice.

[20] The appellants’ motion was adjourned by Allen J. to be heard at the same time as the motion and application that were scheduled for November 22, 2018. On November 22, 2018, Gluestein J. adjourned these matters to be heard on March 4, 2019.

[21] At the hearing of the motions brought by the Authority and Ontario that were scheduled for a full day, Mr. and Mrs. Brown did not initially appear when court opened. They were contacted by the court staff and asked whether they intended to appear, and they responded that they would come to court by early afternoon. When they appeared, Mrs. Brown explained that there had been a court attendance in Newmarket on February 4, 2019 at which Mr. and Mrs. Brown advised that Mr. Brown intended to commence an appeal of his convictions and sentence to the Ontario Court of Justice. Mrs. Brown explained that she did not appreciate that the motions before me would be proceeding, and she asked that the motions be adjourned to await the outcome of the appeal to be brought. The Authority and Ontario opposed the request for an adjournment.

[22] These motions had been regularly brought. A full day had been set aside for the hearing of these motions on March 4, 2019, with the knowledge and consent of Mr. and Mrs. Brown. In my view, there was no reason why these motions should be adjourned to await the outcome of the appeal to be brought by Mr. Brown to the Ontario Court of Justice. I declined to grant the requested adjournment.

Analysis

Should the Amended Application be struck out or stayed or dismissed?

[23] The first issue to be addressed is whether the Amended Application should be struck out or stayed or dismissed as against the Authority and Ontario.

[24] The Authority relies upon the following grounds in support of its motion to strike out or stay or dismiss the Amended Application:

a. The applicants are not parties to the proceedings against Mr. Brown and they have no standing to challenge the convictions against him and the sentence given by Justice of the Peace Seglins. b. In any event, an appeal from an order of a Justice of the Peace lies under s. 116(2) of the Provincial Offences Act to the Ontario Court of Justice presided over by a provincial judge, and not to the Superior Court of Justice. c. The Amended Application is brought for the improper purpose of collaterally attacking decisions of the Provincial Offenses Court and, as such, it is an abuse of the process of this court. d. The Amended Application discloses no reasonable cause of action and should be struck out and dismissed pursuant to rule 21.01(1)(b).

[25] Ontario submits that the Amended Application should be struck out and dismissed on the grounds that (i) an appeal from Mr. Brown’s convictions and sentence lies to the Ontario Court of Justice presided over by a provincial judge; (ii) Ontario is not a proper respondent; and (iii) under rules 21.01(3)(d) and 25.11 of the Rules of Civil Procedure, the Amended Application is frivolous, vexatious and an abuse of the process of the court.

[26] In the Amended Application, the applicants seek broad relief against the Authority and Ontario in relation to environmental approvals for development of the Property, enforcement of the Restoration Plan, collection of the fines imposed in the sentence of Mr. Brown, challenges to the constitutional validity of Ontario Regulation 179/06 under the Conservation Authorities Act pursuant to which Mr. Brown was convicted, and other challenges. It is clear that the claims for relief made in the Amended Application are challenges to the convictions and sentence imposed against Mr. Brown. See Amended Application, paragraphs 1.2, 1.4, 1.5, 1.6, 1.7, 1.8, 1.9, 1.10, 1.11, 1.12, 1.14, 1.15, 1.17, 2.1, 2.3, 2.5, 2.6, 2.7, 2.8, 2.9 and 2.10.

[27] The applicants were not parties to the proceeding that resulted in the convictions against Mr. Brown and the sentence given. As a result, they lack standing to challenge the convictions and the sentence given through this Amended Application.

[28] Section 116(2) of the Provincial Offences Act provides that an appeal from a decision of a justice of the peace shall be to the Ontario Court of Justice presided over by a provincial judge. Therefore, an appeal from the convictions and sentence imposed by Justice of the Peace Seglins lies to the Ontario Court of Justice presided over by a provincial judge. Section 111(1) of the Provincial Offences Act provides that a notice of appeal by a defendant shall not be accepted for filing if the defendant has not paid in full the fine imposed by the decision appealed from.

[29] Included in the declaratory relief that Mrs. Brown and the other applicants seek on the Amended Application is “a Declaration that Applicant Sylviette Rita Brown, being the duly appointed Trustee of GreenWorld Disability Trust and the Registered owner of the Trust Property being the subject matter in the POC Proceeding was the only person with the statutory legal authority and capacity to make full answer and defence to all matters which pertained to and involved the Trust Property, Trust Management and Trust Assets”.

[30] Mrs. Brown submits that she was improperly denied standing in the proceedings heard by Justice of the Peace Seglins, and she seeks an order granting her (and Greenworld) standing on the Amended Application. At the trial, Mrs. Brown brought a motion for an order that she be granted standing. On July 27, 2018, Justice of the Peace Seglins gave oral reasons for her decision to deny this motion. Mrs. Brown seeks the same relief that was denied by Justice of the Peace Seglins on the Amended Application.

[31] In British Columbia (the Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422 Abella J. described at para. 28 the rationale for the rule against collateral attack through duplicative proceedings:

The rule against collateral attack similarly attempts to protect the fairness and integrity of the justice system by preventing duplicative proceedings. It prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route [citations omitted].

[32] The relief claimed by Mrs. Brown and the Greenworld entities on the Amended Application seeking standing and challenging decisions of Justice of the Peace Seglins are impermissible collateral attacks on the validity of decisions made by Justice of the Peace Seglins.

[33] For these reasons, the Amended Application should be struck out and dismissed pursuant to the inherent jurisdiction of this court to control its own process and pursuant to rules 21.01(3)(d) and 25.11 of the Rules of Civil Procedure.

Should the appeal and the appellants’ motion be struck out and dismissed?

[34] The Authority submits the Notice of Appeal and the Notice of Motion included in the appellants’ motion record dated July 3, 2018 should be stayed or dismissed or, alternatively, quashed against the Authority on the following grounds:

a. Mrs. Brown and the Greenworld parties have no standing to seek relief in relation to the executed search warrant or the documents that were used to obtain a search warrant. b. The appeal is not properly brought to the Superior Court of Justice because under the Provincial Offences Act, an appeal of the convictions and sentence imposed by Justice of the Peace Seglins shall be to the Ontario Court of Justice presided over by a provincial judge. c. The appellants, as moving parties, are not entitled to equitable relief because (i) their motion is an improper attempt circumvent s. 111(1) of the Provincial Offences Act which requires that Mr. Brown pay the fines imposed by the sentencing decision made by Justice of the Peace Seglins before a notice of appeal is accepted by the court for filing; and (ii) the motion is not associated with an ongoing or intended proceeding; and (iii) the moving parties have not satisfied the requirements for an stay or an interlocutory injunction. d. The appeal and motion constitute an abuse of process. e. Mr. Brown’s request for disclosure and production of two information packages put before justices of the peace is an attempt to challenge the validity of the search warrant issued and executed on the Property which underlies the convictions against him. This remedy is not available to Mr. Brown because it was not raised until long after sentencing, and this issue could only have been raised by Mr. Brown on an appeal from his convictions and sentence properly brought to the Ontario Court of Justice presided over by a provincial judge.

[35] Ontario supports these submissions.

[36] Mrs. Brown and the Greenworld entities were not parties to the proceeding that resulted in the convictions against Mr. Brown and the sentence given by Justice of the Peace Seglins, and they have no standing to appeal these decisions.

[37] The appeal has also been brought to the wrong court. An appeal from the convictions against Mr. Brown and the sentence given by Justice of the Peace Seglins lies to the Ontario Court of Justice presided over by a provincial judge: Provincial Offences Act, s. 116(2).

[38] Mr. and Mrs. Brown, in their submissions, agreed that the appeal brought in this court should not proceed, given that Mr. Brown intends to commence an appeal to the Ontario Court of Justice.

[39] For these reasons, the appeal (and the appellants’ motion in this appeal) must be struck out.

Disposition

[40] For these reasons I order that:

a. The Amended Application (CV-18-595542) is struck out and dismissed. b. The appeal (CV-18-595997) and the appellants’ motion brought in this appeal proceeding are struck out.

[41] I direct that the Authority and Ontario make written submissions with respect to costs, not to exceed four (double-spaced) pages (excluding costs outlines) within seven days. These are to be served on Mr. and Mrs. Brown by courier. Mr. and Mrs. Brown are given seven days from the date of receipt of these written submissions (the date of receipt is to be the date shown on the written receipt provided by the courier service to the Authority and to Ontario) to provide responding submissions, not to exceed 4 (double-spaced) pages in length.

Cavanagh J.

Date: March 5, 2019