Court File and Parties

Oshawa Court File No.: CV-24-00001950-0000 Date: 2025-08-15 Superior Court of Justice - Ontario

Re: 2682283 Ontario Ltd. o/a Volcano Café and Lounge, Applicant

And: Her Worship Justice Jennifer Mumby and His Majesty the King in the Right of Ontario, Respondents

And: The Regional Municipality of Durham, Intervenor

Before: The Hon. Mr. Justice R.E. Charney

Counsel:

• Ryan P. Zigler, Counsel for the Applicant
• Jeffrey Tighe, Counsel for the Intervenor, The Regional Municipality of Durham

Heard: August 14, 2025

Endorsement

[1] The Applicant, Volcano Café and Lounge, has been charged with a total of 14 counts alleging breaches of the Durham Region Smoke and Vape By-Law, set out in 6 different Informations, covering a period of twelve alleged offence dates over a 3 year period.

[2] The municipal prosecutor brought a joinder application under the Provincial Offences Act R.S.O. 1990, c. P.33 (POA) to have all of the charges heard together in one trial. Volcano Café and Lounge opposed the joinder application.

[3] The joinder application was granted by the Justice of the Peace on August 6, 2024.

[4] The Applicant brings this Application for an Order in the nature of certiorari quashing the joinder Order of the J.P. pursuant to s. 140 of the POA. The Applicant argues that the decision of the JP was a denial of natural justice because the JP relied on the submissions of the Crown regarding the issue of joinder without the benefit of affidavit evidence to support those submissions.

[5] The Intervenor in this case, the Regional Municipality of Durham, has carriage of the prosecution under the municipal by-laws, and is the actual Respondent for the purposes of this Application.

Section 140 of the Provincial Offences Act

[6] Section 140 of the POA sets out a very limited right to review the pre-trial rulings of a J.P. or provincial court judge. Section 140(1) provides:

Mandamus, prohibition, certiorari

140 (1) On application, the Superior Court of Justice may by order grant any relief in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari.

[7] The scope of a s. 140 review is significantly constrained by s. 141(4), which provides:

141 (4) On an application for relief in the nature of certiorari, the Superior Court of Justice shall not grant relief unless the court finds that a substantial wrong or miscarriage of justice has occurred, and the court may amend or validate any decision already made, with effect from such time and on such terms as the court considers proper.

[8] The limited scope of review under s. 140(1) of the POA was discussed by the Court of Appeal in R. v. 1353837 Ontario Inc., where the Court stated, at para. 18:

That said, applications for certiorari under the POA should be granted only rarely. I say that for two reasons. First, most erroneous pre-trial rulings or rulings made during a trial will be errors within jurisdiction. Numerous examples come to mind including an erroneous order refusing to disclose a document to the defence, an erroneous refusal to admit a document at trial, or an erroneous refusal to allow counsel to ask a question of a witness. Unless any one of these refusals had a fundamentally important impact on the fairness of the proceeding, each would be characterized as an error within jurisdiction, rather than an error going to jurisdiction. Each would be appealable only at the end of the trial as part of an appeal against conviction, dismissal or sentence.

[9] This limitation was reiterated in York (Regional Municipality) v. McGuigan, 2018 ONCA 1062, at para. 50:

It is uncontroversial that, under the POA, applications for certiorari are rarely granted. The reasons are twofold. First, most erroneous pre-trial or in-trial rulings are errors made within jurisdiction. Errors of law made in the exercise of jurisdiction do not become jurisdictional error just because one of the parties confers this characterization upon them. On certiorari review, the issue is not the correctness of the ruling, but rather the authority to make it. Second, the extraordinary remedies are discretionary. That they do not issue as of right is a principle confirmed by the inclusion of s. 141(4) in the POA…

[10] Certiorari is an extraordinary remedy that is available only in narrow circumstances. It is tightly limited in order to accord with the general prohibition against interlocutory appeals.

[11] The practical reasons for the general prohibition against interlocutory appeals include: (a) the need to maintain the integrity of the trial process; (b) the need to avoid fragmentation or delay in the proceedings; (c) to allow for the development of a full record for appeal; and (d) to ensure the efficacy of the appeal process: York (Regional Municipality) v. McGuigan, at para. 48.

Analysis

[12] There is no dispute that the JP had jurisdiction to order joinder of the various charges in this case. Section 38(1) of the POA provides:

38 (1) The court may, before trial, where it is satisfied that the ends of justice so require, direct that separate counts, informations or certificates be tried together or that persons who are charged separately be tried together.

[13] Since the decision was clearly within the jurisdiction of the JP, that should be the end of this matter.

[14] The Applicant, however, argues that there has been a breach of the principles of natural justice because the JP relied on unsworn evidence of the prosecutor, and this amounts to a jurisdictional error and "a substantial wrong or miscarriage of justice".

[15] For the reasons set out below, I reject that argument.

[16] In the present case, the Prosecutor brought a joinder application. In support of its application, it filed a factum setting out the basis for its application. In this factum, the prosecutor set out the following information:

a. The dates of the various charges.

b. The identity of the Tobacco Enforcement Officers who entered the premises.

c. What each Officer observed ("patrons smoking hookah water pipes") before they laid the charges.

d. That samples were taken from the hookah water pipes and these samples were found to be tobacco.

[17] All of these facts are readily apparent from the Informations laid under s. 23 of the POA.

[18] In addition, the Crown made various legal arguments supporting joint trials for all of the charges, including:

a. The same defendant is charged with the same two offences in all of the counts, which all pertain to the similar action of allowing patrons to smoke from hookah water pipes, and allowing patrons to smoke tobacco. There is, therefore, a sufficient factual nexus between the charges to allow the court to join them.

b. Many of the witnesses (in particular the Tobacco Enforcement Officers) were involved in several of the charges, and if the charges are heard separately these witnesses will have to attend on multiple occasions.

c. The possibility of inconsistent verdicts if tried separately.

d. The need to avoid a multiplicity of proceedings.

[19] The Defence did not file any reply submissions, but took the position that the prosecutor could not apply for joinder of the charges unless it filed an affidavit with evidence to support its legal arguments.

[20] The JP rejected this argument, finding that she did not require affidavit evidence to make a decision on the joinder motion. She stated:

In reviewing the charges laid out across six informations, I can gather a basic understanding of the common facts. The applicant's factum essentially only adds to this understanding by providing additional information about how events unfolded and naming those individuals involved in the investigation.

The factum is put forth by an officer of the court and can be relied on as an accurate representation of what the prosecution believes to be the facts of these matters.

In that sense, I find the information contained in the factum to be credible and trustworthy. I would note its also consistent with the facts of the offences that can be gleaned from the six informations which do contain quite a bit of detail with respect to each offence, not only the date, the location of the offence but also the observations made with respect to smoking and vaping, et cetera.

I'm satisfied that I have sufficient information to decide this motion without the need of affidavit evidence. And in considering all of the information before me, I find that the test for granting the joinder is met.

[21] In summary, the JP gave the following reasons for granting joinder:

a. The offences could have initially been jointly charged but for the wide range of dates of the alleged offences.

b. There is a clear and significant commonality and factual nexus between all the charges: the same offences, the same acts, the same location, discovered in the same manner.

c. There is a significant overlap in the prosecution witnesses anticipated to be called.

d. Avoiding the possibility of inconsistent verdicts.

e. Avoiding a multiplicity of proceedings and the drain on judicial resources of conducting six separate trials.

f. The Defendant did not raise any issue of prejudice.

[22] Accordingly, the JP concluded that the interests of justice require that these Informations be heard together rather than at six separate trials.

[23] The Applicant argues that the prosecutor's factum "made representations as to additional alleged facts" for which there was no evidence before the JP, and that the JP relied on these "unsworn representations". The Applicant does not identify what these additional facts might have been.

[24] In my view, it is clear from the JP's decision that there were no such "additional alleged facts" asserted by the prosecutor or relied on by the JP in arriving at her decision.

[25] As an officer of the Court, the prosecutor is certainly permitted to advise the Court of its anticipated witnesses without the need for an affidavit in support. Lawyers are routinely asked by judges for a list of anticipated witnesses, and no affidavit is required to answer this question. The lawyer is responsible for the conduct of his or her case and can answer the question on that basis.

[26] Furthermore, the JP could see from the six Informations laid that there would be some overlap in witnesses.

[27] The prosecutor did not require additional evidence to make the legal argument that a multiplicity of proceedings should be avoided or to raise concerns about the possibility of inconsistent verdicts. There was a sufficient factual record upon which these arguments could be made, and it was open to the Defendant to rebut these arguments.

[28] In its factum, the Applicant focuses on the lack of evidence that it believes the JP should have had before making her decision: details of the names and numbers of all witnesses on each count, the estimated length of trial if the matters proceeded separately or together, evidence of the delay in moving for joinder, the circumstances that gave rise to any possibility of inconsistent verdicts. The Applicant argues that the JP should not have made her decision on joinder without these additional details.

[29] Clearly, the JP found that she had "sufficient information to decide this motion" and she did not require additional "evidence" to make her decision. That was a decision that was well within her jurisdiction.

[30] Moreover, I cannot imagine what additional evidence would be required to raise the spectre of multiplicity of proceedings or inconsistent verdicts. Counsel for the Applicant was unable to assist in this regard.

Conclusion

[31] In conclusion, the Applicant has not met the test for an application for certiorari under s. 140 of the POA. The JP's decision was within her jurisdiction, and no "substantial wrong or miscarriage of justice has occurred". Accordingly, the Application is dismissed.

Justice R.E. Charney

Date: August 15, 2025