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Provincial Offences Act - Appeals

. Ontario (Labour) v. Bondfield Construction Company Limited

In Ontario (Labour) v. Bondfield Construction Company Limited (Ont CA, 2023) the Court of Appeal considered a s.131 POA leave to appeal motion. Here the court comments on POA costs in a leave to appeal:
[30] In its factum, J.M.R. had requested costs of this motion. During argument, counsel for J.M.R. conceded that the costs would not normally be awarded on a motion for leave under the POA: R. v. Rankin, (2007) 2007 ONCA 426 (CanLII), 86 O.R. (3d) 399 (C.A.) at paras. 3-5; R. v. Felderhof, (2003) 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481 (C.A.), at para. 100. I see no basis for awarding costs in this case.
. Ontario (Labour) v. Bondfield Construction Company Limited

In Ontario (Labour) v. Bondfield Construction Company Limited (Ont CA, 2023) the Court of Appeal considered a s.131 POA leave to appeal motion:
Test under s. 131 of the POA

[10] Sections 131(1) and (2) of the POA set out the test for determining whether leave to appeal from an appeal judgment of the Ontario Court of Justice to the Court of Appeal should be granted:
131(1) A defendant or the prosecutor or the Attorney General by way of intervention may appeal from the judgment of the court to the Court of Appeal, with leave of a judge of the Court of Appeal on special grounds, upon any question of law alone or as to sentence.

(2) No leave to appeal shall be granted under subsection (1) unless the judge of the Court of Appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.
[11] This is a high bar and leave is granted sparingly. No matter how wrong the appeal judgment may be, this court must be satisfied that both criteria are met: R. v. Zakarow, (1990) 1990 CanLII 6991 (ON CA), 74 O.R. (2d) 621 (C.A.), at pp. 625-26; Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13, 328 D.L.R. (4th) 343, at paras. 33-36; R. v. Scantlebury, 2016 ONCA 453, 350 O.A.C. 174, at para. 12.

[12] As this court stated in R. v. Rankin, 2007 ONCA 127, 221 O.A.C. 184, at para. 30, “[l]eave under s. 131 is to be granted only if the appeal raises questions of law on which this court’s guidance is essential in the public interest or for the due administration of justice.”
. Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town)

In Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town) (Ont CA, 2021) the Court of Appeal considered some intervention motions made in the course of POA appeals originally brought under the Endangered Species Act:
[10] In determining motions for leave to intervene as a friend of the court pursuant to Rule 13.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court will generally consider “the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (3d) 164 (C.A.), at p. 167; Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 10; Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at para. 8.

Nature of the Case and the Issues which Arise

[11] Where a criminal appeal raises no constitutional issue, or where the liberty of the subject is involved, leave to intervene is granted sparingly: see e.g., Gajewski (Re), 2020 ONCA 4, 149 O.R. (3d) 145, at para. 27; R. v. Roks, 2010 ONCA 182, 275 O.A.C. 146, at para. 11. The appellant cites this proposition to argue against granting leave. However, this appeal concerns a conviction under the POA, a quasi-criminal matter. Importantly, the appellant is not an individual facing a criminal conviction and its liberty is not at stake. The appeal does raise issues of significance to the appellant but the provincial offence at issue is, in fact, a wrong against the community as a whole, engaging a legal issue of a very public nature that is of interest to a wide segment of the community: see Gajewski (Re), at para. 34.

[12] In my view, the nature of the case and the issues which arise from the appeal overwhelmingly favour the proposed interveners on this motion. The proposed interveners seek to intervene on the interpretation of s. 10(1) of the ESA, which is a question of law. This provision has broad application and its interpretation may have profound implications for species at risk in Ontario, as well as the large number of people whose behaviour is subject to the statute. I agree with the proposed interveners that this court has recognized this issue is of public importance and transcends the dispute between the immediate parties by granting leave to appeal. Moreover, this will also be this court’s first opportunity to consider what “damage” means in s. 10(1) of the ESA, making informed contributions on the subject even more valuable.
. R. v. Pahal

In R. v. Pahal (Ont CA, 2023) the Court of Appeal would apply an appellate information-correcting provision [POA s.117(1)(a.1)], here to a by-law traffic charge:
[50] First, he points out that the charges in the Information refer only to the 2016 Waterloo Traffic By-law, they do not refer to the 2018 Amending By-law. He submits it was not therefore open to the Justice of the Peace, nor is it open to this court, to find him guilty of offences not charged and of which he did not have notice, the latter being a requirement of s. 11(c) of the Charter.

[51] I would not accept this argument. Immediately after the Agreed Statement of Facts was filed as an exhibit at trial and before any witnesses were called, the municipal prosecutor asked that certified copies of the 2016 Waterloo Traffic By-law and 2018 Amending By-law be filed as exhibits. The paralegal representing the respondent objected on the basis that the Information did not refer to the 2018 Amending By-law or state that the 2016 Waterloo Traffic By-law had been amended. The Justice of the Peace permitted certified copies of both by-laws to be filed. The paralegal representing the respondent did not ask at that time that the Information be quashed or request any other remedy, such as an adjournment. Nor is there any indication on the record before us that the paralegal sought any remedy later in the proceedings[6].

[52] In the circumstances, if necessary, I would order that both charges in the Information be amended under s. 117(1)(a.1) of the Provincial Offences Act, R.S.O. 1990, c. P.33[7] so that the 2016 Waterloo Traffic By-law is referred to as “as amended”. Even assuming it was necessary that the words “as amended” should have been set out in the Information, given that certified copies of both relevant by-laws were filed at trial and the respondent did not request an adjournment, I see no basis for finding that he was in any way prejudiced by the omission of the words “as amended”.



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Last modified: 06-12-23
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