COURT FILE NO.: CV-18-599883 DATE: 2019/01/28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Christopher A. Weisdorf Applicant

– and –

The City of Toronto Respondent

Counsel: Christopher Weisdorf, self-represented Amy Murakami for the City of Toronto

HEARD: January 15, 2019

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] In 2017, the City of Toronto, City Council enacted By-Law No. 799-2017, which established an administrative penalty system for certain parking tickets; i.e., for parking, standing, or stopping of vehicle violations. Before 2017, these parking tickets were prosecuted under the Provincial Offences Act[^1] before a Justice of the Peace through the court system.

[2] On December 6, 2017, the Applicant, Christopher Weisdorf, received a parking ticket issued by a city enforcement officer, and December 21, 2017, he went to Toronto Metro Hall and met a screening officer about the ticket, which he disputed, but the matter was not resolved. On January 9, 2018, he returned to Toronto Metro Hall and met another screening officer, and the second screening Officer imposed a $300 penalty. Mr. Weisdorf refused to pay, and he requested a hearing before a hearing officer of the Administrative Penalty Tribunal. On January 9, 2018, Mr. Weisdorf was notified that the hearing before the hearing officer was scheduled for February 23, 2018. Just before that hearing, Mr. Weisdorf served a Notice of Constitutional Question on the Province of Ontario and on the City challenging the constitutionality of the administrative penalty system as contrary to the Charter of Rights and Freedoms,[^2] and so when on February 23, 2018, he went to the hearing before the hearing officer, it was adjourned by the hearing officer to April 6, 2018. On March 19, 2018, the Chair of the Administrative Penalty Tribunal advised Mr. Weisdorf that the constitutional question would not be considered at the hearing but that the hearing would proceed as scheduled. In turn, on April 3, 2018, Mr. Weisdorf requested an adjournment of the hearing, and so it was adjourned to May 9, 2018. On May 9, 2018, the hearing went ahead, and the chair of the Administrative Penalty Tribunal imposed a $50 administrative penalty. On June 15, 2018, Mr. Weisdorf brought this Application to, among other things, quash By-Law No. 799-2017.

[3] For the reasons that follow, Mr. Weisdorf’s Application is dismissed without costs.

B. Facts

1. The Enforcement of Parking Tickets in the City of Toronto

[4] Under the City of Toronto Act, 2006,[^3] the City has the authority to enact by-laws to regulate among other things the parking, standing, or stopping of motor vehicles in the City.

[5] Up until August 28, 2017, the City’s parking by-law violations were prosecuted under the Provincial Offences Act before a Justice of the Peace through the province’s court system.

[6] In 2017, the City of Toronto, City Council enacted By-Law No. 799-2017, which established an administrative penalty system for designated parking, standing or stopping of vehicle violations.

[7] The City’s authority to enact By-Law No. 799-2017 was established by its general authority to pass by-laws under sections 7 and 8 of the City of Toronto Act, 2006 and by sections 81 and 118 of the Act which provide the authority to impose an administrative penalty in respect of the failure to comply with by-laws respecting the parking, standing or stopping of vehicles. Sections 81 and 118 of the Act state:

81 (1) Without limiting sections 7 and 8, those sections authorize the City to require a person to pay an administrative penalty if the City is satisfied that the person has failed to comply with any by-laws respecting the parking, standing or stopping of vehicles.

(2) Despite subsection (1), the City does not have the power to provide that a person is liable to pay an administrative penalty in respect of the failure to comply with by-laws respecting the parking, standing or stopping of vehicles until a regulation is made under section 118.

Regulations re administrative penalties, parking by-laws

118 (1) Upon the recommendation of the Attorney General, the Lieutenant Governor in Council may make regulations providing for any matters which, in the opinion of the Lieutenant Governor in Council, are necessary or desirable for the purposes of section 81, including,

(a) granting the City powers with respect to requiring that persons pay administrative penalties and with respect to other matters necessary for a system of administrative penalties;

(b) imposing conditions and limitations on the City’s powers with respect to administrative penalties;

(c) providing for the refusal by the Registrar of Motor Vehicles to validate vehicle permits issued, or to issue vehicle permits, to a person who had not paid an administrative penalty that is owing to the City.

Conflict

(2) In the event of a conflict between a regulation made under this section and a provision of this or any other Act or regulation, the regulation made under this section prevails.

[8] As may be noted under s. 81 of the City of Toronto Act, 2006, for an administrative penalty system to be implement, a prerequisite is that the Province of Ontario have passed a regulation pursuant to s. 118 of the City of Toronto Act, 2006.

[9] On December 7, 2006, the Province of Ontario enacted O. Reg. 611/06 to establish the framework for a system of administrative penalties for the City’s Parking By-Laws. O. Reg. 611/06 as amended by O. Reg. 150.15 states:

Administrative Penalties

Definitions

1. In this Regulation,

“administrative penalty by-law” means a by-law establishing a system of administrative penalties and described in clause 3 (1) (a);

“designated by-law” means a by-law with respect to parking, standing or stopping of vehicles that is designated by the City as a by-law to which the City’s system of administrative penalties applies and, if only a part of a by-law is designated, includes only the designated part of the by-law.

Application

2. This Regulation applies to administrative penalties that are required by the City in respect of the parking, standing or stopping of vehicles and referred to in section 81 of the Act.

General condition

3. (1) The City shall not exercise its power, referred to in section 81 of the Act, to require a person to pay an administrative penalty unless the City,

(a) has passed a by-law establishing a system of administrative penalties that meets the requirements of this Regulation;

(b) has designated the by-laws respecting parking, standing or stopping of vehicles, or the parts of such by-laws, to which the system of administrative penalties applies; and

(c) has met any other requirements of this Regulation.

(2) The purpose of the system of administrative penalties established by the City shall be to assist the City in regulating the flow of traffic and use of land, including highways, by promoting compliance with its by-laws respecting the parking, standing or stopping of motor vehicles.

(3) [Revoked O. Reg. 150/15, s. 1.]

Non-application of Provincial Offences Act

4. The Provincial Offences Act does not apply to the contravention of a designated by-law.

Liability of owner

5. (1) If a vehicle has been left parked, standing or stopped in contravention of a designated by-law, the owner of the vehicle shall, upon issuance of a penalty notice in accordance with the administrative penalty by-law, be liable to pay an administrative penalty in an amount specified in the administrative penalty by-law.

(2) For the purposes of subsection (1), the owner of a vehicle shall be deemed to be,

(a) the person whose name appears on the permit for the vehicle; and

(b) if the vehicle permit consists of a vehicle portion and plate portion and different persons are named on each portion, the person whose name appears on the plate portion.

Monetary limit

6. The amount of an administrative penalty established by the City shall,

(a) not be punitive in nature; and

(b) not exceed the amount reasonably required to promote compliance with a designated by-law;

(c) [Revoked: O. Reg. 150/15, s. 2.]

Administration of system of administrative penalties

7. The City shall develop standards relating to the administration of the system of administrative penalties which shall include,

(a) policies and procedures to prevent political interference in the administration of the system;

(b) guidelines to define what constitutes a conflict of interest in relation to the administration of the system, to prevent such conflicts of interest and to redress such conflicts should they occur;

(c) policies and procedures regarding financial management and reporting; and

(d) procedures for the filing and processing of complaints made by the public with respect to the administration of the system.

Procedural requirements

8. (1) The administrative penalty by-law passed by the City shall include the following procedural requirements:

9. The owner of a vehicle must be provided with reasonable notice that an administrative penalty is payable under the administrative penalty by-law.

10. The individual issuing a penalty notice in respect of the contravention of a designated by-law is not allowed to accept payment in respect of the penalty.

11. A person who receives a penalty notice shall be given the right to request a review of the administrative penalty by a screening officer appointed by the City for that purpose.

12. The screening officer may cancel, affirm or vary the penalty, including any fee imposed under section 12, upon such grounds as are set out in the administrative penalty by-law.

13. A person who receives notice of the decision of the screening officer shall, in such circumstances as may be specified in the administrative penalty by-law, be given the right to a review of the screening officer’s decision by a hearing officer appointed by the City for that purpose.

14. The hearing officer shall not make a determination with respect to a review of the screening officer’s decision unless he or she has given the person who requested the review an opportunity to be heard.

15. The hearing officer may cancel, affirm or vary the decision of the screening officer upon such grounds as are set out in the administrative penalty by-law.

16. Procedures must be established to allow a person to obtain an extension of time in which to request a review by a screening officer, or a review by a hearing officer, on such grounds as may be specified in the administrative penalty by-law.

17. Procedures must be established to permit persons to obtain an extension of time for payment of the penalty on such conditions as may be specified in the administrative penalty by-law.

18. The procedures established under paragraphs 8 and 9 shall provide for a suspension of the enforcement mechanisms available under sections 9, 10 and 11 in relation to the administrative penalty if an extension of time has been granted.

19. Procedures must be established to permit persons to be excused from paying all or part of the administrative penalty, including any administrative fees referred to in section 12, if requiring the person to do so would cause undue hardship.

(2) The appointment of the hearing officer shall be consistent with the conflict of interest guidelines referred to in clause 7 (b) and the hearing officer shall conduct hearings in an impartial manner.

(3) Neither a screening officer nor a hearing officer has jurisdiction to consider questions relating to the validity of a statute, regulation or by-law or the constitutional applicability or operability of any statute, regulation or by-law.

(4) The Statutory Powers Procedure Act[^4] applies to a review by a hearing officer.

(5) The decision of a hearing officer is final.

Enforcement

9. (1) If an administrative penalty is not paid within 15 days after the date that it becomes due and payable to the City, the City has the right to enforce payment of the amount in default in accordance with this section.

(2) The City may file a certificate of default in a court of competent jurisdiction and, once filed, the certificate is deemed to be an order of the court and may be enforced in the same manner as an order of the court.

(3) A certificate of default shall be in the form approved by the Attorney General.

(4) Costs incurred in obtaining and enforcing the deemed order shall be added to the order and collected under the order.

(5) [Revoked: O. Reg. 150/15, s. 3.]

(6) One certificate of default may be filed with the court in respect of two or more administrative penalties imposed on the same person.

(7) If, after a certificate of default has been filed with the court, every penalty to which the certificate relates is paid in full, the City shall,

(a) notify the court in writing; and

(b) if a writ of execution has been filed with the sheriff, notify the sheriff in writing.

Plate denial

10. (1) If an administrative penalty is not paid within 15 days after the date that it becomes due and payable to the City, the City may notify the Registrar of Motor Vehicles of the default and the Registrar shall not validate the permit of a person named in the default notice nor issue a new permit to that person until the penalty is paid.

(2) Subsection (1) applies only to the permit related to the vehicle to which the administrative penalty relates.

Other enforcement measures

11. (1) If an administrative penalty is not paid within 15 days after the date that it becomes due and payable to the City, the City may adopt, in addition to the enforcement measures described in sections 9 and 10, such other enforcement measures as may be permitted under the Act.

(2) The other enforcement measures referred to in subsection (1) shall not be punitive in nature.

Administrative fees

12. (1) Subject to subsection (2), the City may charge administrative fees, in the amounts specified in the by-law, as follows:

13. If an administrative penalty is not paid within 15 days after the date that it becomes due and payable to the City,

i. late payment fees, and

ii. fees in respect of amounts paid by the City to obtain documents or information about the vehicle or the owner of the vehicle.

2. A fee in respect of the failure of a person to appear at the time and place scheduled for a hearing by a hearing officer.

3. Any other fee or charge that may be imposed by the City in respect of the administration of the administrative penalty system under section 259 of the Act.

(2) No fee may be charged in relation to obtaining a review before a screening officer or a hearing officer.

(3) [Revoked: O. Reg. 150/15, s. 4.]

(4) The fees described in subsection (1) may be added to the administrative penalties in default and the additional amount may be included in the amount to be collected in accordance with the enforcement measures adopted by the City under sections 9, 10 and 11.

(5) If a person has paid any of the fees described in subsection (1) in respect of an administrative penalty and the penalty is subsequently cancelled by a screening officer or a hearing officer, the City shall refund the fees in full to the person.

Availability of by-laws

13. The City shall ensure that the administrative penalty by-law is made available to the public in such manner as it sees fit at no cost.

14. [Omitted - provides for coming into force of provisions of this Regulation].

[10] For present purposes, several features of O. Reg. 611/06 should be kept in mind. It should be noted that: (a) if a vehicle is parked in contravention of the ticket by-law, the owner upon issuance of a penalty notice is liable to pay an administrative penalty in an amount specified in the by-law; (b) the Provincial Offences Act does not apply to the contravention of the parking ticket by-law; (c) a person who receives a penalty notice may request a review by a screening officer appointed by the City; (d) the screening office may, cancel, affirm or vary the penalty upon such grounds as set out in the by-law; (e) a person who receives a penalty notice may request a review of the screening officer’s decision by a hearing officer appointed by the City who must give the person who requested a review an opportunity to be heard; (f) the Statutory Powers Procedure Act applies to a review by a hearing officer; (g) neither a screening officer nor a hearing officer has jurisdiction to consider questions relating to the validity of a statute, regulation or by-law or the constitutional applicability or operability of any statute, regulation or by-law; (h) the hearing officer may cancel, affirm or vary the decision of the screening officer upon such grounds as are set out in the by-law; and (i) the decision of a hearing officer is final.

[11] Although with the enactment of the City of Toronto Act, 2006 and O. Reg. 611/06 in 2006, the City had the legislative authority to enact an administrative penalty by-law it did not do so until 2017. From 2006 to 2017, the City persisted with the historic approach used by municipalities across the province of enforcing parking ticket by-laws under the Provincial Offences Act.

[12] However, by 2015, reliance on the Provincial Offences Act was not working as a means of enforcing parking by-laws.

[13] Between 2015 and 2016, the City’s reliance on the court system was breaking down. There was a significant increase in parking ticket disputes which the historic system could not manage apparently because motorists had perceived ways to beat a system that required enforcement officers to physically affix a ticket on the vehicle before it moved away and to attend court to give evidence if the ticket was disputed. In Toronto, the average wait time was 18 months to have a parking dispute heard.

[14] And there was a significant decrease in judicial resources to resolve the contested tickets being disputed before Justices of the Peace in provincial courts. In September 2015, the City withdrew 880,000 parking tickets because of delays and insufficient court resources for parking ticket trials.

[15] Between 2015 and 2016, the City explored the idea of changing to an administrative penalty system.

[16] The City undertook a study. It reviewed two reports of the Law Commission of Ontario; namely: (a) the Commission’s June 2010 “Report into Administrative Monetary Penalties for Parking Infractions” and its August 2011 report, “Modernization of the Provincial Offences Act.” The City reviewed the experience of other municipalities that had established an administrative penalty system and conducted a survey soliciting feedback from Toronto citizens on a proposed administrative penalty system.

[17] The Law Commission’s reports recommended the implementation of an administrative penalty system for parking ticket enforcement as a better use of judicial resources, and the Commission noted the positive experience of the City of Vaughan, which had moved away from the court-based model. The City of Vaughan reported a decrease in contested parking infractions, a reduction in the time to have a dispute heard (from ten months to two), and the release of court resources for more serious matters.

[18] City Staff prepared Report No. GM13.12 entitled "Administrative Penalty System for Parking Violations" dated May 24, 2016 and recommended the establishment of an administrative penalty system.

[19] The staff report was considered at a public meeting of the Government Management Committee on June 13, 2016 and at a public meeting of City Council on July 12, 2016, at which time, City Council followed the recommendation of City staff and enacted By-Law 799-2017.

[20] Under By-Law 799-2017: (a) parking tickets may be served by a variety of means including regular mail; (b) the administrative penalty is due and payable upon effective service; (c) the enforcement officer is not automatically required to attend before the Hearing Officer, although he or she may be ordered to attend; (d) if the vehicle owner wishes to dispute the ticket, he or she may schedule a review online or attend in person at a first appearance facilities to meet a screening officer, who is appointed by the City Solicitor; (e) screening officers can cancel, affirm or vary the penalty or approve extension of time to request a screening review or approve an extension of time to pay the penalty; (f) the screening officer's decision can be reviewed by a hearing officer, who is a member of the Administrative Penalty Tribunal – an independent adjudicative body appointed by City council; (g) hearing requests can be made in person or online; and (h) the current maximum penalty is $500 with no possibility of imprisonment.

[21] For By-Law 799-2017, the City has developed standards relating to the administration of the administrative penalty system including: (a) a conflict of interest policy; (b) a policy for the prevention of political interference in the administration of the system; (c) a financial control and reporting policy; (d) a Code of Conduct for members of adjudicative bodies; and (e) a complaint protocol for members of local boards.

[22] In response to Mr. Weisdorf's allegation about improper purpose, the City does not dispute that it obtains revenues from the payment of parking violation notices and that it did so before the enactment of By-Law 799-2017. Complete details of these revenues are the subject of annual public reports.

[23] The City does, however, dispute Mr. Weisdorf’s allegation that maximization of revenue and profits was the primary motivation for the City’s establishment of the administrative penalty system.

2. Mr. Weisdorf’s Story

[24] Mr. Weisdorf’s elderly mother suffered a stroke and was no longer able to drive, and she obtained an accessible parking permit to assist her family members who would act as her chauffeur.

[25] On December 6, 2017, with the accessible parking permit displayed in the vehicle, Mr. Weisdorf took his mother to a restaurant on Gerrard St. East in the City of Toronto. He parked the vehicle and escorted her to the restaurant and returned to find that his vehicle had been ticketed for “stand vehicle in loading zone for persons with disability while not boarding or discharging valid accessible permit holder” contrary to the Toronto Municipal Code, chapter 903-7A. The penalty for this contravention is $450.

[26] On December 21, 2017, Mr. Weisdorf went to Metro Hall in downtown Toronto to obtain a court date to challenge the enforcement officer’s evidence. He was directed to a screening officer who told him that he would cancel the parking ticket if Mr. Weisdorf produced the parking permit or a copy of it. Since Mr. Weisdorf had not brought the permit with him, the screening officer rescheduled the screening for January 9, 2018 at 3:00 p.m.

[27] On January 9, 2018, Mr. Weisdorf returned and although the original screening officer was present, Mr. Weisdorf was directed to a different screening officer. This second officer said that Mr. Weisdorf had contravened the Toronto Municipal Code and imposed a $300 penalty. Mr. Weisdorf advised the screening officer that he wished a review hearing.

[28] On January 15, 2018, Mr. Weisdorf received an email message indicating that a hearing at the City’s Administrative Penalty Tribunal had been scheduled for February 23, 2018 at the tribunal’s premises at 1530 Markham Road in the City of Toronto at 11:00 a.m.

[29] On February 22, 2018 Mr. Weisdorf served on the Attorneys General of Ontario and Canada a Notice of Constitutional Question challenging the constitutionality of the Administrative Penalty Tribunal. The City of Toronto's Clerk was served just after midnight.

[30] On February 23, 2018, Mr. Weisdorf went to the hearing and the hearing officer, who was already aware of the Notice of Constitutional Question, indicated that the hearing was being adjourned to April 6, 2018.

[31] On March 2, 2018, Mr. Weisdorf received a letter from the Ministry of the Attorney General of Ontario advising that the Notice of Constitutional Question was invalid because it had been served without at least fifteen days of notice before the hearing. Mr. Weisdorf responded with an email message indicating that the hearing had been adjourned and that the Notice was valid. The federal Department of Justice, which has no interest in the matter never responded. The Ministry of the Attorney General of Ontario had no further involvement with this matter.

[32] On March 5, 2018, March 26, 2018, and April 5, 2018, Mr. Weisdorf filed freedom of information requests with the City for information relevant to his constitutional challenge. As will appear from the account below, the constitutional challenge was not considered by the Administrative Penalty Tribunal. The information sought by Mr. Weisdorf did, however, form part of the evidentiary record for the Application now before the court. For present purposes, I need not recount Mr. Weisdorf’s complaints and the bureaucratic hassles and the delays that he experienced in his freedom of information requests.

[33] On March 19, 2018, Mr. Weisdorf received by email a letter from Paul Sommerville the Chair of the Administrative Appeal Tribunal indicating that the Tribunal wold not consider the Notice of Constitutional Question and that if Mr. Weisdorf had any documents, then they should be filed by March 27, 2018. Mr. Weisdorf immediately sent an amended Notice of Constitutional Question with a supporting affidavit to the Tribunal and to the Attorney General of Ontario.

[34] On March 29, 2018, just before the Easter long weekend holiday, Mr. Weisdorf received a 76-page document from the City entitled City of Toronto Response Position on the Application of the Charter of Rights and Freedoms. This document was followed by 536 pages of a case law brief.

[35] Mr. Weisdorf felt bullied by the delivery of this material and believes that there was a conspiracy between Mr. Sommerville and the City Solicitor to discomfort him. He immediately emailed a request for an adjournment. Three days later he was advised that the adjournment would not be granted but when Mr. Weisdorf responded that he intended to report the Chair and the lawyer handling the matter for the City to the Law Society an adjournment was granted to May 9, 2018.

[36] The hearing proceeded in the morning of May 9, 2018 and lasted for approximately thirty minutes before the Chair of the Tribunal. Mr. Sommerville refused to consider the Notice of Constitutional Question.

[37] At the hearing, Mr. Weisdorf recounted the events of the parking ticket and what had occurred before the two screening officers. The parking enforcement officer was not present to be cross-examined. Mr. Sommerville imposed a penalty of $50 on the grounds of hardship.[^5] Mr. Weisdorf denies that he fits the definition of hardship and says he did not request a reduction on the grounds of hardship.

[38] On June 15, 2018, Mr. Weisdorf commenced an Application to, among other things, quash By-Law 799-2017.

C. Discussion

1. The Relief Requested

[39] In his Notice of Application, Mr. Weisdorf seeks the following relief:

a. the quashing By-Law 799-2017;

b. the restoration of the Ontario Courts of Justice system for parking, standing, and stopping offences and the Provincial Offences Act, Part II;

c. the cancellation of all parking violation notices, retroactively, of every defendant who has ever appeared before a screening officer and had their penalty affirmed for any reason pursuant to s. 24(1) of the Charter, induding the ticket issued to the Applicant; and

d. the return of all monies taken by the City from every defendant who has ever appeared before a screening Officer and had their penalty affirmed for any reason pursuant to s. 24 (1) of the Charter.

[40] In his Notice of Application, Mr. Weisdorf notes the following grounds for the relief requested; namely:

a. the Administrative Penalty Tribunal and the Administrative Penalty System are unconstitutional and in systemic breach of ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms;

b. the Administrative Penalty Tribunal and the Administrative Penalty System are illegal and in systemic breach of: s. 2 (e) of the Canadian Bill of Rights;[^6] s. 10.1 of the Statutory Powers Procedure Act; ss. 6 (i) and 31 of the Contraventions Act;[^7] ss. 43 (2)(c), 46 (2) and 46 (3) of the Provincial Offences Act; and s. 11 of the City of Toronto Act, 2006;

c. The Administrative Penalty Tribunal and the Administrative Penalty System are in systemic breach of the following court precedents: Re McCutcheon and City of Toronto;[^8] R. v. Stinchcombe;[^9] R. v. W. (D.);[^10] Canada Labour Relations Board v. Transair Ltd.;[^11] Cardinal v. Director of Kent Institution;[^12] R. v. Wholesale Travel Group Inc.;[^13] and, Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities);[^14]

d. the dominant purpose of the Administrative Penalty Tribunal and the Administrative Penalty System is to generate and maximize revenues and profits and is, hence, operating ultra vires from its statute and mandate;

e. the the Administrative Penalty Tribunal and the Administrative Penalty System is systemically and structurally biased and prejudiced toward potentially all who appear before it and the system it encompasses;

f. the screening officers are bureaucrats with no legal training or licence, yet have the combined powers of prosecutor, judge, jury and metaphorical executioner to render decisions, which are rarely overturned;

g. the Administrative Penalty Tribunal and the Administrative Penalty System are in systemic breach of: longstanding British common law tradition, doctrine and practice; natural law; natural justice; and procedural fairness; and

h. the conduct and practices of the Administrative Penalty Tribunal and the Administrative Penalty System regime are unfair, unjust, excessive, unreasonable, tyrannical, and incompatible with a free and democratic society; it has no place in Canada.

2. The Issues

[41] The main issues raised by Mr. Weisdorf’s Application are the following:

a. Does By-Law 799-2017 contravene sections 7 or 11 of the Charter?

b. Does By-Law 799-2017 conflict with: the Canadian Bill of Rights; the Statutory Powers Procedure Act; the Contraventions Act; the Provincial Offences Act; and the City of Toronto Act, 2006?

c. Was By-Law 799-2017 enacted in bad faith and for an improper purpose?

[42] The City also raises the issues of whether Mr. Weisdorf’s proper recourse was a judicial review application under the Judicial Review Act[^15] and whether the court has the jurisdiction to grant some of the various remedies requested by Mr. Weisdorf. Because Mr. Weisdorf’s Application fails on the main issues, I shall not address the issues raised by the City.

3. Does By-Law 799-2017 contravene sections 7 or 11 of the Charter?

[43] Mr. Weisdorf submits that By-Law 799-2017 infringes section 7 of the Charter, which states:

7. 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.

[44] It is however plain and obvious that s. 7 of the Charter does not apply to the administrative penalty system.

[45] The administrative penalty system does not infringe or deprive a vehicle owner’s right to life, liberty and security of the person. In the operation of the administrative penalty system under By-Law 799-2017, there is no arrest or detention, no possibility of imprisonment, and no genuine penal consequences.

[46] In R. v. Pontes,[^16] which concerned a motor vehicle driving offence, the Supreme Court of Canada established that there is no violation of s.7 of the Charter where there is no risk of imprisonment.[^17] Justice Cory for a majority of the court (Chief Justice Lamer and Justices Sopinka, Iacobucci, and Major concurring) stated at para. 47:

47. In summary, it is my opinion that ss. 92 and 94 of the B.C. Motor Vehicle Act create an absolute liability offence since they effectively eliminate the defence of due diligence. Nevertheless, the absolute liability offence does not contravene the Charter. This conclusion flows from the application of s. 4.1 and of s. 72(1) of the Offence Act. These sections respectively indicate that, notwithstanding the provisions of any other Act, no person is liable to imprisonment for an absolute liability offence, and that the non-payment of a fine will not result in imprisonment. Thus, an accused convicted under ss. 92 and 94 of the B.C. Motor Vehicle Act faces no risk of imprisonment and there is, accordingly, no violation of the right to life, liberty and security of the person under s.7 of the Charter.

[47] In Guindon v. Canada, the Court considered an administrative monetary penalty of $546,747 under the Income Tax Act with no possibility of imprisonment and found that there was no penal consequences. In Lavalee v. Alberta (Securities Commission),[^18] the Alberta Court of Appeal held that an administrative penalty of $1.0 million under the Securities Act did not constitute a true penal consequence.

[48] In the immediate case, By-Law 799-2017 sets a maximum fine of $500.00 with no possibility of imprisonment. The fines are not subject to general criminal sentencing principles. I agree with the City that there is no true penal consequence under By-Law 799-2017.

[49] Mr. Weisdorf submits that By-Law 799-2017 infringes s. 11d of the Charter, which states:

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

[50] Once again, it is plain and obvious that s. 11 (d) of the Charter is not engaged because Mr. Weisdorf has not been charged with a criminal or quasi-criminal offence.

[51] In R. v. Wigglesworth,[^19] the Supreme Court established that an administrative proceeding under a public law statute for which there are no penal consequences does not create an offence to which s. 11 applies. In Martineau v. Canada (Minister of National Revenue-M.N.R.),[^20] the Supreme Court of Canada indicated that when determining if a proceeding is criminal in nature, it is necessary to consider: the objectives of the legislation; the objectives of the sanction; and the process leading to the imposition of the sanction.

[52] In assessing the nature of a proceeding, in Guindon v. Canada[^21] the Supreme Court of Canada stated at para. 63:

63. With respect to the process, the heart of the analysis is concerned with the extent to which it bears the traditional hallmarks of a criminal proceeding. Fish J. referred to some of the relevant considerations in Martineau, including whether the process involved the laying of a charge, an arrest, a summons to appear before a court of criminal jurisdiction, and whether a finding of responsibility leads to a criminal record: para. 45. The use of words traditionally associated with the criminal process, such as "guilt", "acquittal", "indictment", "summary conviction", "prosecution", and "accused", can be a helpful indication as to whether a provision refers to criminal proceedings.

[53] In R. v. Wigglesworth,[^22] a police officer was disciplined under the Royal Canadian Police Act for committing a common assault as defined in the Criminal Code; this alleged breach of the Criminal Code was a “major service offence” under the Royal Canadian Police Act. After his disciplinary conviction, the police officer was then prosecuted under the Criminal Code, and he objected to the prosecution on the ground that he was entitled to the protection found in s. 11 of the Charter that prohibits a person being tried twice for the same offence.

[54] The Supreme Court of Canada, however, held that although the police officer was protected by s. 7 of the Charter because there were genuine penal consequences to a proceeding under the Royal Canadian Mounted Police Service Court, (one year’s imprisonment was possible) that proceeding was neither a criminal nor quasi-criminal proceedings and was administrative in nature for which s. 11 of the Charter did not apply.

[55] In R. v. Wigglesworth, Justice Wilson (Chief Justice Dickson and Justices Beetz, McIntyre, and Lamer, concurring; Justice Estey dissenting) stated at paras. 21-24:

21. While it is easy to state that those involved in a criminal or penal matter are to enjoy the rights guaranteed by s. 11, it is difficult to formulate a precise test to be applied in determining whether specific proceedings are proceedings in respect of a criminal or penal matter so as to fall within the ambit of the section. The phrase "criminal and penal matters" which appears in the marginal note would seem to suggest that a matter could fall within s. 11 either because by its very nature it is a criminal proceeding or because a conviction in respect of the offence may lead to a true penal consequence. I believe that a matter could fall within s. 11 under either branch.

22 There are many examples of offences which are criminal in nature but which carry relatively minor consequences following conviction. Proceedings in respect of these offences would nevertheless be subject to the protections of s. 11 of the Charter. It cannot be seriously contended, that just because a minor traffic offence leads to a very slight consequence, perhaps only a small fine, that offence does not fall within s. 11. It is a criminal or quasi-criminal proceeding. […]

23 In my view, if a particular matter is of a public nature, intended to promote public order and welfare within a public sphere of activity, then that matter is the kind of matter which falls within s.11. It falls within the section because of the kind of matter it is. This is to be distinguished from private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited private sphere of activity: […] Proceedings of an administrative nature instituted for the protection of the public in accordance with the policy of a statute are also not the sort of "offence" proceedings to which s. 11 is applicable. But all prosecutions for criminal offences under the Criminal Code and for quasi-criminal offences under provincial legislation are automatically subject to s. 11. […]

24 This is not to say that if a person is charged with a private, domestic or disciplinary matter which is primarily intended to maintain discipline, integrity or to regulate conduct within a limited private sphere of activity, he or she can never possess the rights guaranteed under s. 11. Some of these matters may well fall within s. 11, not because they are the classic kind of matters intended to fall within the section, but because they involve the imposition of true penal consequences. […]

[56] Returning to the immediate case, an administrative penalty system with no prospect of penal consequence is not a criminal or quasi-criminal proceeding to which either s. 7 or s. 11 of the Charter applies, and, rather is a public law proceeding instituted in accordance with the policy of a statute and a proceeding to which the Charter protections of s. 7 and 11 do not apply.[^23]

[57] Once removed from the Provincial Offences Act, the proceeding to enforce a parking ticket under By-Law 799-2017 is not by its nature a criminal or quasi-criminal proceeding and a determination that the by-law has been breached does not entail genuinely penal consequences. Thus, Mr. Weisdorf’s reliance of R. v. Wholesale Travel Group[^24] and R. v. Sault Ste. Marie[^25] about the onus of proof and the presumption of innocence for regulatory offences is a non sequitur.

[58] In the immediate case, By-Law 799-2017 does not have the indicia of a criminal process. Rather, for vehicle owners who wish to challenge a parking by-law violation, it substitutes an administrative dispute resolution process governed by the Statutory Powers Procedures Act. There is no laying of an information or complaint. There is no arrest. There is no penal sanction imposed by a court of criminal jurisdiction. There is no criminal record. The administrative penalty imposed is not imposed to punish a wrong committed against society at large and there is no social stigma attached to parking ticket violations.

[59] With respect and an acknowledgement of Mr. Weisdorf’s industriousness and the seriousness in which he pursued his constitutional challenge, in my opinion, he misses the point that the import of By-Law 799-2017 was to take parking ticket offences, which undoubtedly were at one time, handled by criminal courts and subject to Charter protections out of the administration of criminal justice into the civil sphere of administrative law.

[60] He misses the point that the principles of due process and of natural justice are different in the civil and administrative law sphere. Properly understood, those principles were adequately addressed by By-Law 799-2077 and by a process that involved screening officers and hearing officers and the provisions of the Statutory Powers Procedures Act. Mr. Weisdorf knew the case that he had to meet, and he had an opportunity to defend himself and be heard.

[61] Mr. Weisdorf also submitted that By-Law 799-2017 does not afford a vehicle owner with the right to make full answer and defence in accordance with R. v. Stinchcombe,[^26] and R. v. W. (D.);[^27]. However, once again, since no criminal offences are charged, these cases have no application. Further, Mr. Weisdorf is also incorrect in stating that there is no disclosure process under an administrative penalty system. Both the Statutory Powers Procedures Act and the Tribunal Rules of Procedure authorize the Tribunal to make disclosure orders.

[62] I, therefore, conclude that By-Law 799-2017 does not contravene sections 7 or 11 of the Charter.

[63] Because neither section 7 or 11 of the Charter apply, it is not necessary to discuss whether their provisions are a reasonable limit prescribed by law pursuant to s. 1 of the Charter.

4. Does By-Law 799-2017 conflict with: the Canadian Bill of Rights; the Statutory Powers Procedure Act; the Contraventions Act; the Provincial Offences Act; and the City of Toronto Act, 2006?

[64] In Croplife Canada v Toronto (City),[^28] the Court of Appeal addressed the law with respect to whether a municipal by-law should be struck down on the grounds that it conflicted with federal or provincial legislation. Following the Supreme Court of Canada’s decision in Rothmans, Bensen & Hedges Inc.,[^29] the Court stated that there is a two-step test that asked: (1) Is it impossible to comply with both the by-law and the legislation?; and, (2) Does the operation of the by-law frustrate the purpose of the legislature? If the answer to both questions is "no", then the by-law does not conflict with the legislation.

[65] In the immediate case, By-Law 799-2017 does not conflict with the Canadian Bill of Rights, which applies to federal laws, the Contraventions Act, which applies to federal laws, and the Provincial Offences Act, which is inapplicable to the by-law. These statutes do not have any application to persons governed by the City’s parking by-law and thus a conflict is not even possible.

[66] In the immediate case, By-Law 799-2017 does not conflict with the Statutory Powers Procedure Act because it is expressly made compliant with the Statutory Powers Procedure Act, and the by-law does not conflict with the City of Toronto Act, 2006, which rather is the empowering statute authorizing the City to enact the by-law.

[67] Thus, By-Law 799-2017 does not conflict with: the Canadian Bill of Rights; the Statutory Powers Procedure Act; the Contraventions Act; the Provincial Offences Act; and the City of Toronto Act, 2006.

5. Was By-Law 799-2017 enacted in bad faith and for an improper purpose?

[68] Absent bad faith, a municipal by-law shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law.[^30] A court must respect the responsibility of elected municipal bodies to serve the people who elected them, and a court should exercise caution to avoid substituting its views of what is best for the citizens.[^31] The party challenging a by-law's validity bears the burden of proving that it is ultra vires.[^32]

[69] To establish bad faith, it must be shown that the City acted other than in the public interest. As described by the Court of Appeal in Equity Waste Management of Canada v. Halton Hills (Town):[^33] “bad faith by a municipality connotes a lack of candour, frankness and impartiality. It includes arbitrary or unfair conduct and the exercise of power to serve private purposes at the expense of the public interest.”

[70] In the immediate case, there is no doubt that pursuant to the City of Toronto Act, 2006 and O. Reg. 611/06 that the City had the legislative authority to enact the by-law. There is no merit to Mr. Weisdorf’s argument that By-Law 799-2017 was enacted for an improper purpose. Pursuant to the empowering legislation the by-law was enacted to assist the City in regulating the flow of traffic and use of land, including highways, by promoting compliance with its by-laws respecting the parking, standing or stopping of motor vehicles.

[71] The City was confronted with a situation that using the court system of the Provincial Offences Act was not working for the prosecution of parking tickets and using a criminal process for parking tickets was straining the administration of justice’s ability to address more serious matters that were truly criminal in nature. The City consulted with ratepayers and made a researched and reasoned decision to implement an administrative penalty system rather than continuing to use the disproportionate and ineffective system of the Provincial Offences Act to enforce parking ticket penalties. There was candour, frankness and impartiality in the process. There was no arbitrary or unfair conduct or the exercise of power to serve private purposes at the expense of the public interest.

[72] In the immediate case, that the change from a court system to an administrative penalty system might preserve or even enhance City revenues was not the motivation for the change, and Mr. Weisdorf has not proved that By-Law 799-2017 was enacted in bad faith.

D. Conclusion

[73] For the above reasons, Mr. Weisdorf’s application is dismissed.

[74] At the argument of the motion, the City requested costs of $5,000, if it was successful on the application. However, I regard Mr. Weisdorf, who is a self-represented litigant, as a public interest litigant. He very diligently researched and prepared his case and capably presented his argument. While he was unsuccessful, he sincerely and passionately believed that motorists parking their vehicles in Toronto were being denied their Charter protected rights. In the circumstances of this case, I exercise the court’s discretion to make no order as to costs.

Perell, J.

Released: January 28, 2019

COURT FILE NO.: CV-18-599883 DATE: 2019/01/28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Christopher Weisdorf Applicant

– and –

THE CITY OF TORONTO Respondent

REASONS FOR DECISION

PERELL J.

Released: January 28, 2019

[^1]: R.S.O. 1990, c. P. 33. [^2]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c. 11. [^3]: S.O. 2006, c 11, Schedule A. [^4]: R.S.O. 1990, s. 22. [^5]: The decision of the Administrative Penalty Tribunal was issued twice. Due to an obvious administrative error, the template for the decision included the decision of the hearing officer made on February 23, 2018, when the hearing was adjourned. This reference was removed in the corrected version of the decision. [^6]: S.C. 1960, c 44. [^7]: S.C. 1982, c 47. [^8]: (1983), 1983 1629 (ON SC), 147 D.L.R. (3d) 193 (H.C.). [^9]: 1991 45 (SCC), [1991] 3 S.C.R. 326. [^10]: 1991 93 (SCC), [1991] 1 S.C.R. 742. [^11]: 1976 170 (SCC), [1977] 1 S.C.R. 722. [^12]: 1985 23 (SCC), [1985] 2 S.C.R. 643. [^13]: 1991 39 (SCC), [1991] 3 S.C.R. 154. [^14]: 1992 84 (SCC), [1992] 1 S.C.R. 623. [^15]: R.S.O. 1990, c. J.1. [^16]: 1995 61 (SCC), [1995] 3 S.C.R. 44. [^17]: See also: Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at para 83; R. v. Transport Robert (1973) Ltee., 2003 7741 (ON CA), [2003] O.J. No. 4306 (C.A.); Lavallee v. Alberta (Securities Commission) 2010 ABCA 48, [2010] A.J. No 144 (Alta. C.A.). [^18]: 2010 ABCA 48, [2010] A.J. No 144 (C.A.). [^19]: 1987 41 (SCC), [1987] 2 S.C.R. 541. [^20]: 2004 SCC 81, [2004] 3 S.C.R. 737. [^21]: 2015 SCC 41, [2015] 3 S.C.R. 3 at para 63. [^22]: 1987 41 (SCC), [1987] 2 S.C.R. 541. [^23]: Lavallee v. Alberta (Securities Commission) 2010 ABCA 48, [2010] A.J. No 144 at para. 27 (Alta. C.A.). [^24]: 1991 39 (SCC), [1991] 3 S.C.R. 154. [^25]: 1978 11 (SCC), [1978] 2 SCR 1299. [^26]: 1991 45 (SCC), [1991] 3 S.C.R. 326. [^27]: 1991 93 (SCC), [1991] 1 S.C.R. 742. [^28]: 2005 15709 (ON CA), [2005] O.J. No. 1896 (C.A.). [^29]: 2005 SCC 13, [2005] 1 S.C.R. 188. [^30]: City of Toronto Act, 2006, ss. 213, 214; Friends of Lansdowne Inc. v. Ottawa (City), 2012 ONCA 273, [2012] O.J. No. 1860 (C.A.); 1786889 Ontario Inc. v. Toronto (City) [2013] O.J. No. 4792 (S.C.J.); Municipal Parking Corp. v. Toronto (City) 2009 65385 (ON SC), [2009] O.J. No. 5017 (S.C.J.). [^31]: Shell Canada Products Ltd. v. Vancouver (City) (1994), 1994 115 (SCC), 110 D.L.R. (4th) 1 (S.C.C.); Halifax (Regional Municipality) v. Ed DeWolfe Trucking Ltd., 2007 NSCA 89, [2007] N.S.J. No. 333 (C.A.). [^32]: 114957 Canada Ltee. (Spraytech, Societe d'arrosage) v. Hudson (Town), 2001 SCC 40, [2001] S.C.J. No. 42. [^33]: 1997 2742 (ON CA), [1997] O.J. No. 3921 (C.A.). See also: Friends of Lansdowne Inc. v. Ottawa (City), 2012 ONCA 273, [2012] O.J. No. 1860 (C.A.); 1786889 Ontario Inc. v. Toronto (City) [2013] O.J. No. 4792 (S.C.J.); Municipal Parking Corp. v. Toronto (City), 2009 65385 (ON SC), [2009] O.J. No. 5017 (S.C.J.).