



COURT OF APPEAL FOR ONTARIO

CITATION: Antorisa Investments
  Ltd. v. Vaughan (City), 2012 ONCA 586

DATE: 20120907

DOCKET: M41289

Gillese J.A. (In chambers)

BETWEEN

Antorisa Investments Ltd. and 1785037 Ontario
    Ltd.

Applicants

and

The Corporation of the City of Vaughan

Respondent

Orlando Rosa and David Outerbridge, for the applicants

Andrew J. Heal and V. Arman, for the respondents

Heard: September 5, 2012

On application for leave to appeal under s. 131 of the
Provincial
    Offences Act
from the judgment of Justice Ronald A. Minard of the Ontario
    Court of Justice, dated March 26, 2012, which allowed the appeal by the
    respondent City of Vaughan from the judgment of Justice of the Peace Adele
    Romagnoli, dated June 6, 2011, with reasons reported at [2012] O.J. No. 3584.

Gillese
    J.A
.:

[1]

The Applicants operate an Active Green + Ross location in Vaughan.  They
    are licensed to operate as an automotive retail store.  They were charged with
    operating a public garage contrary to the City of Vaughan (the City) By-law
    1-88, s. 5.2 and, therefore, with committing a violation of s. 67(1) of the
Planning
    Act
, R.S.O. 1990, c. P.13.

[2]

Midway through the prosecutions case, the trial judge stayed the
    proceedings.  She ordered a stay based on her conclusion that the prosecution
    was an abuse of process.  In reaching this conclusion, the trial judge relied
    on the clear evidence of the Citys by-law enforcement officer that no offence
    had been committed on the offence date or any other date on which she (the
    by-law enforcement officer) had attended the premises.

[3]

The City appealed.

[4]

The appeal judge allowed the appeal, reversed the stay and ordered a new
    trial.

[5]

The Applicants seek leave to appeal to this court, pursuant to s. 131 of
    the
Provincial Offences Act
, R.S.O. 1990, c. P.33.

[6]

After hearing oral argument on the motion, I advised the parties that I
    would grant leave to appeal, with brief reasons to follow.  These are the
    promised reasons.

The Test for Granting Leave  Section 131 of the
Provincial
    Offences Act

[7]

Section 131 of the
Provincial Offences Act
reads as follows:


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.


[8]

The law on s. 131 is well-settled: see, for example,
R. v. Castonguay
    Blasting Ltd
., 2011 ONCA 292 (in Chambers), at paras. 14-15. In order for the
    Applicants to obtain leave, they must establish: (i) special grounds; (ii) on a
    question of law alone; and (iii) that, in the particular circumstances of this
    case, it is essential in the public interest or for the due administration of
    justice that leave be granted.  What constitutes special grounds in s. 131(1)
    is informed by the requirement in s. 131(2) that it is essential in the public
    interest or for the due administration of justice that leave be granted.  The
    threshold for granting leave is very high.

Analysis

[9]

The Applicants raise several grounds of appeal, the thrust of which is that
    the appeal judge went beyond the scope of permissible appellate review and
    second-guessed the trial judges exercise of discretion.  In essence, the
    Applicants say that the appeal judges focus was on the merits of the case instead
    of abuse of process and, as a consequence, he erred by, among other things, reweighing
    evidence, making factual findings for which there was no evidentiary foundation
    and making evidentiary rulings that were not available to him.

[10]

While
    some of the grounds of appeal might arguably be classified as mixed questions
    of law and fact, I am satisfied that some raise questions of law alone.  As the
    various grounds that have been raised are interrelated, I would permit the
    appeal to go ahead as it has been framed rather than attempting to restrict the
    issues on appeal in some fashion.

[11]

This
    case raises significant questions about the laying of charges by enforcement
    officers, a matter with consequences far beyond the parties to this particular
    case.  Enforcement officers across the province are responsible for
    investigating and recommending the laying of charges under a wide array of
    legislation.  Their actions affect the daily lives of Ontario citizens.  Accordingly,
    the due administration of justice and the public interest requirements are met:
    see
Maitland Valley Conservation Authority v. Cranbrook Swine Inc
., 2001
    CarswellOnt. 3855 (C.A) (in Chambers), at para. 10.

DISPOSITION

[12]

Accordingly,
    leave to appeal is granted.

Released: September 7, 2012 (E.E.G.)

E.E. Gillese
    J.A.


