



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tenny, 2015 ONCA 841

DATE: 20151202

DOCKET: C60327

Hoy A.C.J.O., MacFarland and Lauwers JJ.A.

BETWEEN

Alfred M. Tenny

Applicant (Appellant)

and

Her Majesty the Queen in Right of Ontario

Respondent (Respondent in appeal)

Gatlin Smeijers and Glen Jennings, for the appellant

Sylvia Davis, for the respondent

Heard: November 6, 2015

On appeal from the Order of Justice M. Gregory Ellies, of
    the Superior Court of Justice, dated March 26, 2015, with reasons reported at
    2015 ONSC 1471.

ENDORSEMENT

[1]

Does s. 26(3) of the
Provincial Offences Act
, R.S.O. 1990, c. P.33 (
POA
)
authorize service of a summons by registered
    mail on an individual who resides in the United States of America? For the
    reasons set out below, we hold that it does, and dismiss the appeal.

FACTUAL BACKGROUND

[2]

The appellant, Alfred M. Tenny, is the sole officer and president of
    1449817 Ontario Inc.  The company owns property in Timiskaming, upon which Mr.
    Tennys related companies carried out waste processing and ran a waste
    generator business until operations ceased in 2007.  The property has suffered
    serious environmental issues that have been of great concern to municipal and
    environmental authorities since at least 2004.

[3]

In September 2012, Mr. Tenny and the company pleaded guilty to charges
    and were convicted of failing to comply with a provincial officers order to remove
    and dispose of chemical waste materials remaining on the property. As part of
    the sentence, the court issued a consent remediation order requiring Mr. Tenny
    and the company to remove and dispose of all waste materials by June 2013. They
    failed to do so.

[4]

In April 2014, both Mr. Tenny and the company were charged under s. 186(2)
    of the
Environmental Protection Act
,
    R.S.O. 1990. C. E.19 (
EPA
) for failure to comply with the 2012 remediation order
.

[5]

To compel Mr. Tennys attendance before the court, a summons was issued
    under s. 24 of the
POA
and delivered by registered mail to his last
    known address in the United States, under s.26(3). Section 26 provides:

(1)   A summons issued under section 22 or 24 shall,

(a)  be directed to the defendant;

(b) set out briefly the offence in
    respect of which the defendant is charged; and

(c)  require the defendant to attend
    court at a time and place stated therein and to attend thereafter as required
    by the court in order to be dealt with according to law.

Service

(2)  A summons shall be served by a provincial offences officer
    by delivering it personally to the person

Service
    outside Ontario

(3)  Despite subsection (2),
where the person to whom a
    summons is directed does not reside in Ontario
, the summons shall be deemed
    to have been duly served seven days after it has been
sent by registered
    mail to the persons last known or usual place of abode
. [Emphasis added.]

Service on corporation

(4)
Service of a summons on a corporation may
    be effected,

(b)     in the case of any corporation, other than a
    municipal corporation, incorporated or continued by or  under an Act by,

(i)      delivering the summons personally to the
    manager, secretary or other executive officer of the corporation or person apparently
    in charge of a branch office of the corporation, or

(ii)      mailing the summons by registered mail to
    the corporation at an address held out by it to be its address;

(c)     in the case of corporation not incorporated
    or continued by or under an Act by,

(i)      a method provided under clause (b),

(ii)      delivering the summons personally to the
    corporations resident agent or agent for service or to any other
    representative of the corporation in Ontario, or

(iii)     mailing the summons by registered mail to a
    person referred to in subclause (ii) or to an address outside Ontario,
    including outside Canada, held out by the corporation to be its address.

Date of mailed service


(4.1)
A
    summons served by registered mail under subsection (4) is deemed to have been
    duly served seven days after the day of mailing.

[6]

Mr. Tenny, who now resides in Lahaina, Hawaii, applied under s. 140 of
    the
POA
for an order of prohibition quashing the summons and prohibiting
    the proceedings against him, on the ground that the
POA

does
    not provide the necessary statutory authority for service of a summons on an
    individual who resides outside of Canada.

ANALYSIS

[7]

The parties agree that these are penal proceedings and service of a
    summons outside Canada must be authorized by statute:
R. v. Shulman
(1975),

23 C.C.C. (2d) 242
    (B.C.C.A.), [1975] B.C.J. No. 1055
. In
Shulman
, the
    British Columbia Court of Appeal held,
at para. 15,

[I]n penal proceedings such as those here a summons cannot
    properly be served on a person outside Canada without such service being
    authorized by a statute, and that in the absence of proper service the court
    has no jurisdiction over the person, even though it may have jurisdiction over
    the subject matter of the complaint.

[8]

This court considered whether summonses in relation to charges for fraud
    and conspiracy to commit fraud on a corporation were permitted to be served in
    the United States, in
R. v. R.J. Reynolds Tobacco Co. (Delaware)
, 2007
    ONCA 749, 230 C.C.C. (3d) 72. The application judge had quashed an order
    validating such service. This court found, at para. 6, that
Shulman
was still good law, and went on:

[T]he remaining issue is whether s. 701.1 of the
Criminal
    Code
, when read together with s. 26 of the
POA
, creates the
necessary
    express statutory authorization for service outside of Canada
. In our
    opinion, it does not. In our view, on a proper reading of ss. 701.1 and 703.1
    of the
Criminal Code
it is clear that the only authority provided in
    the
Criminal Code
for service of a summons is authority to serve the
    summons within Canada. Section 26(4) of the
POA
provides an additional
    means of service but it does not in any way expand on the express provisions of
    the
Criminal Code
relating to where a summons may be served. (Emphasis
    added.)

[9]

Mr. Tenny argues that, s. 26(3) of the
POA

does not
    create the necessary express statutory authorization for service outside of
    Canada, as required by
R.J. Reynolds Tobacco
. He asserts that
    language such as that now found in s. 26(4)(c)(iii) of the
POA
would suffice; it permits service on a corporation of a summons by registered
    mail to an address outside Ontario, including outside Canada, held out by the
    corporation to be its address.

[10]

We
    disagree, for two reasons. First, the plain language of s. 26(3), in the
    phrase, where the person to whom a summons is directed does not reside in
    Ontario, expressly refers to service on an individual who, like Mr. Tenny,
    resides outside of Ontario. On any reasonable interpretation, this expression
    would include persons living in the United States, which is outside Ontario.
    Mr. Tenny has not identified any authority that contradicts this
    interpretation.

[11]

Second,
    the legislative history of the
POA
contradicts Mr. Tennys
    interpretation. In its 2007 decision in
R.J. Reynolds Tobacco
,
this
    court
considered
the language
    in s. 26(4) of the
POA
,
which then provided:

(4) Service of a summons on a corporation may be effected by
    delivering the summons personally  or by mailing the summons by registered
    mail to the corporation at an address held out by the corporation to be its
    address, in which case the summons shall be deemed to have been duly served
    seven days after the day of mailing.

[12]

In
R.J. Reynolds Tobacco
, this language was found to be insufficient to authorize
    service outside Canada, since it was entirely silent on the issue. Nor did ss. 701.1
    and 703.4 of the
Criminal Code
,
    R.S.C. 1985, c. C-46
assist the Crown in that case, because they
    referenced only service of a summons within Canada.

[13]

In
    response to the

R.J. Reynolds Tobacco
decision, s. 26(4) of the
POA
was amended to include s. 26(4)(c)(iii), and the words outside Ontario,
    including outside Canada.  We infer that the legislature did not amend s.
    26(3) because it already provided for service on an individual resident outside
    Ontario. We do not see the minor differences in wording between the older s.
    26(3) and newer s. 26(4) as material to the interpretation of s 26(3).

[14]

We
    see no merit to Mr. Tennys argument that s. 26(3) of the
POA
is
    merely a deeming provision as to
when

service is effective.
    Section 26(3) speaks both to the place of service (i.e. not in Ontario), and to
    the time service is deemed effective (i.e. seven days after sending by
    registered mail). We observe that for corporations the place of service is
    addressed by s 26(4), and the time service is effective is addressed by s.
    26(4.1). The differences in expression appear to be no more than changes in
    legislative drafting style between 1979 when s. 26(3) of the
POA
was
    enacted (then as s. 27(3)), and 2009 when s. 26(4) was amended, not
    changes in legislative intention.

[15]

We
    note that giving effect to Mr. Tennys interpretation would create the absurd
    result that corporations could be served outside Canada but individuals could
    not. This would be inconsistent with the purpose of s. 26 of the
POA
which, as the application judge described it, at para. 53, 
is intended to provide for service of a
    summons on individuals and corporations charged with a provincial offence in
    Ontario in the most efficient, inexpensive manner that will, at the same time,
    ensure as much as possible that the summons comes to the attention of the
    accused.


[16]

We
    agree with the application judges observation, at para. 17, that this court
    used the word expressly in

R.J. Reynolds Tobacco
to mean
    clearly and unambiguously.

[17]

Our
    interpretation is supported by the nature of the
POA
as a remedial
    statute, the purpose and objective of which is to provide a summary process for
    regulatory offences to which it applies. Such regulatory offences have long
    been viewed as public welfare offences, meant to protect society as a whole:
R.
    v. Sault Ste. Marie
, [1978] 2 S.C.R. No. 1299.  A liberal interpretation that
    facilitates the attainment of those objects is called for:
Ontario
    (Ministry of Labour) v. Hamilton (City)
(2002), 58 O.R. (3d) 37, at para.
    16;
Legislation Act, 2006
, S.O. 2006, c. 21, Sch. F, s. 64(1). The
    legislative intention reflected in the
POA

is to ensure that
    technical objections do not impede the arrival of a verdict on the merits:
Ontario
    (Ministry of Labour) v. Hamilton (City)
, at para. 21 citing
Ontario
    (Ministry of Labour) v. Discovery Place Ltd.
, [1996] O.J. No. 690 (Gen.
    Div.) at para. 18.

[18]

In our view, s. 26(3) clearly and unambiguously authorizes
    service of a summons on an individual outside Ontario, and outside Canada. The
    summons was properly served on Mr. Tenny. The appeal is dismissed.

Alexandra Hoy A.C.J.O.

J. MacFarland J.A. 

P. Lauwers J.A. 


