



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nichols Gravel Ltd., 2014 ONCA 469

DATE: 20140613

DOCKET: M43256

Pardu (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Nichols Gravel Ltd. and Gary I. Nichols

Applicants

Robert Yanch, for the applicants

Demetrius Kappos, for the respondent

Heard: June 12, 2014

On motion for leave to appeal from the judgment of
    Justice Dale Parayeski of the Superior Court of Justice, dated November 22,
    2013.

ENDORSEMENT


[1]

Nichols Gravel Ltd. and Gary I. Nichols move for leave to appeal from a
    decision of Parayeski J., holding that the Superior Court of Justice did not
    have the jurisdiction to hear the moving parties appeal under the
Provincial
    Offences Act
, R.S.O. 1990, c. P. 33.

[2]

The moving parties were charged under the
Aggregate Resources Act
,
    R.S.O. 1990, c. A. 8 with operating a quarry without a licence. The charges
    were prosecuted under Part III of the
Provincial Offences Act
.

[3]

The moving parties were convicted following trial before a Justice of
    the Peace.

[4]

They appealed to the Ontario Court of Justice where Harris J. upheld the
    convictions, but reduced the fines.

[5]

The moving parties filed a Notice of Appeal to the Superior Court of
    Justice.

[6]

On a motion for directions by the Crown, Parayeski J. decided that the Superior
    Court of Justice did not have jurisdiction and that the proper route for a
    further appeal was to the Court of Appeal, with leave.

[7]

The moving parties rely on s. 116 (2)(b) of the
Provincial Offences
    Act
, which provides that the appeal shall be where the appeal is from the
    decision of a provincial judge, to the Superior Court of Justice. Read
    literally, they submit that this permits an appeal from the decision of Harris
    J. to the Superior Court of Justice. This ignores however s. 116 (1) which
    reads as follows :

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,

(a)     a conviction;

(b)     a dismissal;

(c)     a finding as to ability, because of mental
    disorder, to conduct a defence;

(d)     a sentence; or

(e)     any other order as to costs. 2009,
    c. 33, Sched. 4, s. 1 (54).

[8]

In referring to an appeal from conviction, dismissal, a
    finding of mental disorder, a sentence or any other order as to costs, s. 116
    (1) is intended to refer only to a first appeal, following a decision at first
    instance. Subsection 116(2) specifies the route for an appeal
under subsection (1)
:

An appeal under subsection (1) shall be,

(a) where the appeal is from the decision of a
    justice of the peace, to the Ontario Court of Justice presided over by a
    provincial judge; or

(b) where the appeal is from the decision of a
    provincial judge, to the Superior Court of Justice. R.S.O. 1990, c. P.33,
    s. 116 (2); 2000, c. 26, Sched. A, s. 13 (5, 6).

[9]

Section 131 provides for a second level of appeal with leave, to the
    Court of Appeal from the court to which the first appeal was taken, either the
    provincial judge or the Superior Court of Justice.

[10]

The
    interpretation urged by the moving parties would result in a three separate
    appellate reviews of a decision of a Justice of the Peace in prosecutions under
    Part III of the
Provincial Offences Act
, a result unlikely to have
    been intended and excluded in any event by the language of s. 116.

[11]

Section
    131 (2) of the
Provincial Offences Act
provides:

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

[12]

Leave
    will not be granted where it is apparent that there is little chance of
    success. The Superior Court of Justice did not have jurisdiction to hear the
    appeal from Harris J. I am not persuaded that it is essential in the public
    interest or for the due administration of justice that leave be granted and the
    motion for leave is dismissed.

[13]

In
    the event the respondent wishes to pursue costs of the motion, it shall deliver
    brief written submissions, due by June 30, 2014, with any response by the
    moving parties due by July 18, 2014.

G. Pardu J.A.


