Canada: Superior Court Clarifies Availability Of Judicial Review And Appeals From Interlocutory Provincial Offences Act Orders

Last Updated: January 9 2018
Article by Jacob R.W. Damstra

In a recent decision, Wakulich v. Niagara Peninsula Conservation Authority, 2017 ONSC 6435, Justice T. Maddalena clarified the ability of a party to a proceeding under the Provincial Offences Act, R.S.O. 1990, c. P.33, to appeal or ask for review of an interlocutory decision of a provincial court judge or justice of the peace. The answer, in short, is that such an appeal or review will rarely be entertained and only in cases in which a substantial wrong or miscarriage of justice has occurred.

The decision arose from two separate 2016 charges facing Mr. Wakulich, a private citizen and homeowner living in the City of St. Catharines in relation to the construction of a deck on his property in 2015. The first charge was laid by the Niagara Peninsula Conservation Authority pursuant to section 28(1)(b) of the Conservation Authorities Act, R.S.O. 1990, c. C.27 and its regulations as the deck structure was built on a regulated valley slope. The second charge was laid by the City of St. Catharines pursuant to the Building Code Act, S.O. 1992, c. 23 for failure to comply with a City building inspector order to remove the deck for which Mr. Wakulich had not received the required permit. Mr. Wakulich had been previously charged in 2012 by the Conservation Authority under section 28(1)(b) of the Conservation Authorities Act for the unauthorized construction of a solar panel array on the same regulated valley slope but those charges were dismissed as the prosecution failed to establish an essential element of the offence.

In response to the 2016 charges, Mr. Wakulich brought several motions including a motion requesting dismissal of the charges claiming double jeopardy and raising a limitations defence as well as a separate motion requesting dismissal of the charges based on res judicata, the expiration of a limitations period, and a defence under the Green Energy Act, 2009, S.O. 2009, c. 12, Sch. A. The former motion was dismissed by Justice of the Peace Bisson, while the latter was dismissed by Justice of the Peace Froese who noted the issues raised had previously been dealt with. In May 2017, Mr. Wakulich filed an application in Superior Court which he subsequently amended, seeking various relief including certiorari and mandamus. He also sought an extension of time to appeal the decision of Justice of the Peace Bisson.

Section 140(1) of the Provincial Offences Act permits the Superior Court of Justice "to 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." In his decision on Mr. Wakulich's application, Justice Maddalena observed that relief in the nature of certiorari requires evidence of "a substantial wrong or miscarriage of justice", pointing to section 141(4) of the Provincial Offences Act, which states:

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.

Justice Maddelana noted out that the applicant has the onus of proof to demonstrate a substantial wrong or miscarriage of justice that would justify the court applying the prerogative writs and writs of mandamus and certiorari.

The Court of Appeal for Ontario's judgment in R. v. 1353837 (2005), O.R. (3d) 401, 2005 CanLII 4189 (ON CA) was cited for the principle that "the court should refuse a judicial review midway though a process except in the most blatant and clearest of cases to maintain the integrity of the judicial process and not to fragment proceedings." Ultimately, Mr. Wakulich's application for orders in the nature of certiorari and mandamus were dismissed.

With respect to Mr. Wakulich's request to extend the time to appeal the decision of Justice of the Peace Bisson, the applicable section 116(1) of the Provincial Offences Act states:

Where a proceeding is commenced by information under Part III, the defendant or the prosecutor or the Attorney General by way of intervention may appeal from,

  1. a conviction;
  2. a dismissal;
  3. a finding as to ability, because of mental disorder, to conduct a defence;
  4. a sentence; or
  5. any other order as to costs.

Based on a plain reading of the Act, in the context of proceedings under Part III of the Act, Justice Maddalena held that "there should be no appeal under the circumstances from the interlocutory order of Justice of the Peace Bisson." Mr. Wakulich was found to be seeking to argue his motions a second time, which would amount to an abuse of process contrary to the interests of the administrations of justice.

The Superior Court decision in this case makes it clear that an appeal or review of an interlocutory decision of a provincial court judge or justice of the peace will not be permitted in a case unless it can be demonstrated that there was a substantial wrong or miscarriage of justice. This is akin to the administrative law jurisprudence showing an unwillingness to consider applications to review or appeal decisions or processes before the entire administrative process has come to a final conclusion. The Wakulich v. Niagara Peninsula Conservation Authority does not provide guidance on what situations might amount to a substantial wrong or miscarriage of justice, but given the similarities, the administrative law jurisprudence may be helpful by analogy. The Wakulich decision makes it abundantly clear that the courts will shut the door on efforts to re-litigate the same issue.

www.lerners.ca

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Jacob R.W. Damstra
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions