COURT FILE NO.: CV-21-4331
DATE: 20220831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE REGIONAL MUNICIPALITY OF YORK
Applicant
– and –
LUCAS KLEIN
Respondent
Chris Bendick, Counsel for the Applicant
Self-represented, No one for the Respondent
HEARD: January 21, 2022
H.K. O’Connell, j
[1] Although Mr. Klein, the Respondent, was served with the notice of application and the amended application, as well as the applicant’s materials, he did not partake in the appeal.
[2] The Court therefore only had the materials filed by counsel for York Region, Mr. Bendick, as well as the submissions he made to the court on January 21, 2022.
[3] The provincial prosecutor brings this application, as amended, dated December 31, 2021, asking this court to find that the presiding justice of the peace committed jurisdictional error or an error in law in finding that she did not have jurisdiction to proceed with the hearing of the charge against the respondent; that the justice of the peace committed jurisdictional error or an error in law in finding that the clerk of the court did not comply with the adjournment orders made by Regional Senior Justice of the Peace De Gannes; that the justice of the peace committed jurisdictional error or an error of law in finding that the agent for Mr. Klein could make a conditional appearance to challenge the jurisdiction of the court; and finally that the justice of the peace committed jurisdiction error or an error in law in failing to find that the attornment of the Respondent to the court cured any alleged noncompliance with the adjournment orders by the Regional Senior Justice of the Peace.
[4] The prosecutor seeks an order of mandamus compelling the justice of the peace or another justice of the peace to proceed with the trial of Mr. Klein; a declaration that the clerk of the Court complied with the Provincial Offences Act and all Covid 19 related court orders in the scheduling and rescheduling of the trial date; and related relief.
i) The pithy history
[5] This matter was before the court as a result of an alleged speeding infraction incurred by Mr. Klein, with an offence date of August 08, 2019, at Newmarket.
[6] Mr. Klein, as was his right, opted to have a trial. He retained Traffic Ticket Advocates to represent him. An agent for Traffic Tickets appeared in court on behalf of Mr. Klein on October 29, 2021 and December 03, 2021.
[7] On December 03, 2021 the court held that there was a loss of jurisdiction over Mr. Klein and that the loss of jurisdiction was retroactive to June 04, 2020, which was the first trial date set for this matter.
[8] With the advent of Covid 19 in mid March 2020 the first trial date was adjourned with the provision to Mr. Klein of a new notice of trial date. That first notice of trial date became superseded by others as the tenacious hold of Covid 19 did not release its grip with the reopening of the courts in September 2021.
ii) The court ordered directives and the trial dates
[9] The Reginal Senior Justice of the Peace provided a total of 5 directives to the clerk of the court at Newmarket and ordered that cases before the court were to be addressed administratively and that an “on the record” directive to adjourn trial, was not required.
[10] The directives are dated March 31, 2020; May 25, 2020; July 03, 2020; September 08, 2020, and October 16, 2020.
[11] All of these directives were a consequence on the impact of the Covid 19 pandemic on court operations for which section 49(5) of the Provincial Offences Act was engaged to preserve jurisdiction without an in person appearance in court.
[12] As noted in the material the courts were effectively shuttered in mid March 2020 due so the Covid health emergency.
[13] Mr. Klein had a trial date scheduled initially for June 04, 2020. The matter was adjourned to October 08, 2020, and then to October 29. 2021. His matter was administratively adjourned as per the directives of the Regional Senior Justice of the Peace.
iii) The Trial Date finally arrives: The section 11(b) and no jurisdiction argument
[14] On October 29, 2021 Mr. Klein’s matter was before the court for trial. A representative for Traffic Tickets appeared and advised the court that he was present to represent Mr. Klein.
[15] When the proceedings of this day started, the prosecutor and the Court were advised that Mr. Klein was bringing a section 11(b) application. The representative for Mr. Klein advised he had filed all his material, however the prosecutor and the Court noted that they did not have anything in relation to the 11(b) application.
[16] The prosecutor advised the court that “[he] was taken aback by this sudden development.”
[17] The court clerk advised Her Worship that “an 11(b) document was attached to the information.” A review of the prosecutor’s amended notice of application and related materials reveals that this material consists of a notice of application and a factum.
[18] The prosecutor requested an adjournment of the 11(b) hearing as he was not in possession of the applicant’s material, although the representative for Mr. Klein advised that he served it on the office of the prosecutor via the email that the Provincial Offences office at York Region uses for disclosure requests to the prosecutor’s office.
[19] At this point when asked by the court for the position of the representative for Mr. Klein, the representative for the first time advised that he was also taking the position that the Court did not have jurisdiction to hear Mr. Klein’s trial.
[20] The representative noted that at no time had the matter been adjourned from the time it was originally set down for trial. The representative for Mr. Klein submitted that section 49(5) (b) of the Provincial Offences Act was not complied with.
[21] This argument was made even though Mr. Klein had retained his representative to appear on this first in court trial date; was ready to proceed with Mr. Klein’s 11(b) argument; and no quarrel was taken with the fact that Mr. Klein had received the trial notice setting out the date of October 29, 2021.
[22] The prosecutor argued that the Court had jurisdiction and relied upon a recent case of the Court of Appeal.
[23] A break was taken so that the prosecutor could provide an electronic copy of the referenced case to the court and the representative for Mr. Klein. When court reconvened, the justice of the peace advised that she had not received the case but invited the prosecutor to make his argument to rebut the no jurisdiction position of Mr. Klein.
[24] The prosecutor re-advanced his position that the matter should be adjourned so the prosecution could deal both with the section 11(b) application and the newly advanced jurisdictional issue.
[25] The court ordered that the matter be adjourned so that the parties could file written submissions on the issue of the court’s jurisdiction to hear the case, even though Mr. Klein’s representative took the view that the court had no jurisdiction and could therefore not even adjourn the matter for argument on the issue of jurisdiction.
[26] The date provided for a ruling on the jurisdiction issue was December 03, 2021.
iv) Ruling on the jurisdiction of the Court: December 03, 2021
[27] The justice of the peace set out the history of the prior aborted trial dates. The Court referenced case law provided by Mr. Klein, including R. v. Gougeon et. al. (1981) 1980 CanLII 2842 (ON CA), 55 C.C.C. (2d) 218 (Ont. C.A.); R. v. General Motors of Canada Ltd. (July 5th, 1990) File # 5066/90 (Sup. Ct. Ont.); and R. v. Hung (1997) O.J. No. 6017.
[28] The Court also referenced case law as provided by the prosecutor, including R. v. 1283499 Ontario Inc. (June 26, 2003) C.A No. C39710.
[29] The Court next noted the text of section 49(5) of the Provincial Offences Act and read it into the record.
[30] The Court stated that, “as we are all aware with the COVID, courts were closed beginning March the 16th, 2020 … followed by an order pursuant to section 85 of the Provincial Offences Act extending certain time periods under the Provincial Offences Act for proceedings in the Ontario Court of Justice by, again, t he Honourable Chief Justice Lise Maisonneuve dated November 25, 2020.”
[31] The Court next referenced the five directives of Regional Senior Justice, de Gannes and the content therein that the new trial date need not be addressed on the record.
[32] Justice of the Peace Romagnoli stated, “I understand that to mean that the administrative adjournment did not have to be commenced in open court on the record. I do not read that to mean that there is no need for a record to be kept, if, for no other reason, for the purpose of the Charter.”[^1]
[33] The Court thereafter held that although three trial notices had been sent out to Mr. Klein, there was no keeping of an administrative record. She stated, “I find that there is no authority to send out a trial notice. I find that after the first trial date on June the 4th, 2020, the Court lost jurisdiction over the party. The law provides for the issuance of a summons to regain jurisdiction. This process was not adopted.”
[34] As a consequence, jurisdiction over Mr. Klein was lost according to the justice of the peace on the first aborted trial date of June 4th, 2020.
Ruling : Mandamus is necessary and the Declaration sought by the Prosecutor shall issue.
[35] In his compelling argument, Mr. Bendick, with the assistance of his well written and concise factum, argued forcefully that the justice of the peace erred in finding that there was such a thing as a conditional appearance to challenge defects in process and that mandamus should issue compelling Her Worship to proceed with the trial.
[36] It is clear that the writ of mandamus is an extraordinary remedy for which the Superior Court has the jurisdiction to entertain.
[37] Counsel provided case law (with hyperlinks) to substantiate his argument. I have considered his submissions and the law.
[38] I agree with counsel that the justice of the peace lost her jurisdiction as distinct from simply exceeding it, by finding that after June 4th 2020 the court did not have jurisdiction over Mr. Klein.
[39] Clearly Mr. Klein was well aware of the various dates for which his trial was adjourned due to the global pandemic for which Canada was not spared. He was provided with the new notice of trial date each time a trial date was aborted and required re setting due to the Covid pandemic.
[40] Nothing said by his representative on the trial date set for October 2021 suggests otherwise. Mr. Klein attorned to the jurisdiction on the trial date in October 2021 via his retained representative.
[41] It is clear to me that there was never a loss of jurisdiction over Mr. Klein in the process from ticket issuance to the ruling date of December 03, 2021.
[42] In this vein I agree with Mr. Bendick that even if there was a defect in process, it did not deprive the court of its jurisdiction over Mr. Klein. In this respect I agree that the decision in Goguen as it relates to jurisdiction is obiter dicta, and I accept the reasoning in R. v. Millar, 2012 ONSC 1809. Indeed, in the decision in R. v. Ladouceur, 2013 ONCA 328, the court noted Code J.’s decision in R. v. Millar and referenced, “that a loss of jurisdiction over the person can be regained if the accused attends in court.”
[43] In R. v. 1283499 Ontario Inc. 2003 CanLii 33934 (Ont. C.A.) Doherty J. noted: “If jurisdiction over the person was lost, it was regained when counsel appeared on September 16.”
[44] In R. v. Wink, 2014 ONSC 2495, Justice Fragomeni reviewed the two lines of authority, R. v. Goguen and R. v. Oliveira, 2009 ONCA 219, and held that any loss of jurisdiction over the person is regained if the person attends court or has counsel attend.
[45] A few other things bear mentioning.
[46] There is a pragmatic issue as well. If the justice of the peace was correct in finding she lacked the jurisdiction over the person of Mr. Klein, then the sending out of new trial notices in the Covid 19 lockdown period was a useless exercise even when there was no issue that the notice had been received.
[47] The directives of the Regional Senior Justice of the Peace preserved the very jurisdiction that would have been lost over an individual had those directives not been made.
[48] In this respect I utterly disagree with the presiding justice of the peace that there was non-compliance with the order of Chief Justice Maisonneuve and the directives of Regional Senior Justice of the Peace de Gannes in how matters during the Covid 19 lockdown were adjourned, namely off the record and via administrative route, with the issuance of a new trial notice.
[49] It is not argued, nor could it be, that Mr. Klein was not aware each step of the way as to his new trial dates in the lengthy period of time that the courts were closed.
[50] The failure to note up the offence notice with the return date for the next trial date did not lead to a loss of jurisdiction. Nothing came of that omission and I accept that it wasn’t an omission.
[51] Every time a litigant had their matter adjourned notice of such was forwarded with a new trial notice. Counsel Mr. Bendick advised me in oral argument that there were some 120,000 Provincial Offences that were adjourned due to Covid 19. To suggest that failure of the clerk to note up each offence notice with each new tentative trial date in the face of the directives to the clerk of the court and the sending of new trial notice date(s) simply cannot be reconciled.
[52] In this respect I find that the reference to not having to address matters on the record, as is set out in the Regional Senior Justice’s directives, includes not having to keep a written record on the offence notice of each administratively adjourned trial. To suggest otherwise catapults form over substance.
[53] An order of mandamus must go, ordering Her Worship A. Romagnoli to proceed with the trial of Mr. Klein. If Her Worship cannot do so, the matter will proceed to trial before any other presiding justice of the peace.
[54] Finally, a declaration shall issue that the clerk of the court complied with the Provincial Offences Act and all Covid 19 related court orders in the scheduling and rescheduling of the trial date for Mr. Klein and like situated persons.
[55] The date and time for the trial of Mr. Klein is to be set by the clerk of the court.
Justice H. K. O’Connell
Released: August 31, 2022
COURT FILE NO.: CV-21-4331
DATE: 20220831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE REGIONAL MUNICIPALITY OF YORK
Applicant
– and –
LUCAS KLEIN
Respondent
REASONS FOR JUDGMENT
Judge
Released: August 31, 2022
[^1]: Although not particularly relevant to these reasons, save and except the relief sought, but not decided or argued on the section 11(b) claim, there was no other Charter issue before the court.