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.

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.

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Jacob R.W. Damstra
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