



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Becker Bros. Trucking Inc.,
    2020 ONCA 316

DATE: 20200522

DOCKET: M51388

Paciocco J.A. (Case Management
    Judge)

BETWEEN

Her Majesty the Queen (as
    represented by the Ministry of Transportation)

Moving Party

and

Becker Bros. Trucking Inc.

Responding Party

Patrick Moore, for the moving party

James Manson, for the responding party

Heard: May 21, 2020 by
    teleconference

REASONS FOR DECISION


[1]

Becker Bros. Trucking Inc. (Becker Bros.) was
    convicted of an offence contrary to s. 84(1) of the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8, after a trial before a Justice of the Peace. That
    conviction was set aside on appeal by a Justice of the Ontario Court of
    Justice. Pursuant to s. 131 of
Provincial Offences Act
, R.S.O. 1990.
    c. P.33 (the 
POA
), Her Majesty the Queen (the Crown) now seeks leave
    to appeal that decision to this court. Becker Bros. takes the position that
    this motion for leave to appeal must be made in writing, and not orally as the
    Crown contends. It therefore sought a case management hearing to determine the
    proper procedural mechanism to be followed on motions for leave to appeal under
    s. 131 of the
POA
. I have conducted the case management hearing and I am
    directing that the hearing be conducted orally.

[2]

The Rules of the Court of Appeal in Appeals
    Under the Provincial Offences Act
, O. Reg. 721/94
    (the 
POA Rules
), specifically rr. 3 and 4, apply to motions for
    leave to appeal under s. 131 of the
POA
. Rule 3 governs the Crowns
    motion for leave in this case since the Crown is represented by counsel. It
    provides that such motions for leave to appeal are to be brought in Form 1.
    Motions for leave to appeal brought in inmate appeals or where the moving party
    is not represented by counsel are to be brought under r. 4, in Form 2.

[3]

The
POA Rules

do not provide a
    complete code. Rule 2(1) of the
POA Rules

provides:

2(1) Except where otherwise
    provided by the Act, another statute or these rules, the Rules of Civil
    Procedure apply, where appropriate and with necessary modifications, to appeals
    under sections 131 and 139 of the Act.

[4]

Rule 61.03.1 is the rule from the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194, that applies to motions for leave
    to appeal to the Court of Appeal. It directs that, unless the court orders an
    oral hearing, motions for leave to appeal to the Court of Appeal are to be
    heard in writing, without the attendance of the parties or lawyers: r.
    63.03.1(1). If the
POA
or the
POA Rules
do not otherwise
    provide, r. 63.01.1 of the
Rules of Civil Procedure
would govern the
    mode of the hearing for leave to appeal brought under s. 131 of the
POA
,
    and the hearing would presumptively be in writing.

[5]

It is not contested that the
POA Rules
otherwise provide for the mode of hearing where the leave to appeal motion is
    brought in an inmate appeal, or by an unrepresented moving party, since Form 2,
    applicable in such leave motions, invites the moving party to request that
    their leave motion be heard in person, or in writing. However, as indicated, in
    this case the Crown is represented, so r. 3 of the
POA Rules
and Form
    1 apply. Becker Bros. argues that neither r. 3 nor Form 1 address whether the
    hearing is to be oral or in writing. Therefore, r. 63.03.1 of the
Rules of
    Civil
Procedure
fills the gap, requiring this leave to appeal
    motion to presumptively be in writing.

[6]

Becker Bros. submits that this outcome is
    reinforced by r. 2(2) of the
POA Rules
, which specifies that r. 61.03
    of the
Rules of Civil Procedure
, dealing with motions for leave to the
    Divisional Court, does not apply to appeals under s. 131 of the
POA
.
Since r. 2(2) of the
POA Rules
does not oust r. 61.03.1 of the
Rules
    of Civil Procedure
applicable to motions for leave to appeal to the Court
    of Appeal, by implication r. 61.03.1 is meant to fill the gaps in r. 3 of the
POA
    Rules
.

[7]

Becker Bros. urges that the application of r.
    61.03.1 is further supported by the fact that neither r. 3 of the
POA Rules

nor Form 1 provide for the exchange of
facta
,
a gap that is
    filled by r. 61.03.1, further confirming its application.

[8]

Notwithstanding the able arguments made, I am
    persuaded that motions for leave to appeal brought under s. 131 of the
POA

are presumed to be heard orally. As Becker Bros. concedes, this is the
    settled practice in the Court of Appeal: see, e.g.,
York (Regional
    Municipality) v. Irwin
, 2020 ONCA 44, 97 M.P.L.R. (5th) 189;
Ontario
    (Environment, Conservation and Parks)
v.
Thomas Cavanagh
    Construction Limited
, 2019 ONCA 686, 28 C.E.L.R. (4th) 48;
Antorisa
    Investments Ltd. v. Vaughan (City)
, 2012 ONCA 586, 1 M.P.L.R. (5th) 240.
    Although the
POA

Rules
could have been clearer, I am
    persuaded that

r. 3 supports this practice by providing for an oral
    hearing.

[9]

Specifically, r. 3.7 directs, A motion for
    leave to appeal shall be heard by a judge. I recognize that the phrase heard
    by a judge could embrace a written hearing, but the use of the term heard
    strongly suggests an oral hearing. If the intention was to require leave
    motions to be in writing instead of orally, other language would have been
    used. For example, r. 4(1) of the
POA Rules
, which invites written
    motions, provides that the moving party may present the case for leave to
    appeal and argument in writing.

[10]

Form 1 supports this conclusion. The Form 1
    notice of motion notes that a motion will be made before the presiding judge
    at Osgoode Hall, 130 Queen Street West, Toronto, Ontario, on (day), (date) at
    (time) or as soon thereafter the time as the motion can be heard. The phrase
    made before connotes or suggests an appearance. So, too, does the fact that
    the moving party must specify a time, date and location for the hearing. It is
    noteworthy that r. 61.03.1 of the
Rules of Civil Procedure
, pursuant
    to which leave motions are presumed to be in writing, does not require the
    moving party to specify a time or date for the leave motion.

[11]

It would be curious if r. 4 of the
POA Rules
were to specify a mode of hearing but r. 3 of the
POA Rules
did not.
    Why would the mode of hearing be addressed for leave motions in inmate appeals
    and by those who are not represented, but not addressed for leave motions by
    represented moving parties? Reading r. 3 consistent with the usual meaning of
    the terms used resolves this curiosity.

[12]

It is not surprising that r. 4 of the
POA
    Rules
and Form 2 are more explicit and clearer about the mode of hearing.
    Rule 4 of the
POA Rules

and Form 2 are to be used by those who
    are unrepresented and require more precise direction. As the practice in this
    court demonstrates, for lawyers, familiar with the strong legal tradition of
    oral hearings, the language used in r. 3 and Form 1 can readily be understood
    to provide for oral hearings, removing the need to fall back on the
Rules
    of Civil Procedure
.

[13]

I do agree with Becker Bros. that there is a gap
    in r. 3 relating to the exchange of
facta
. In this context, r. 61.03.1
    of the
Rules of Civil Procedure
does assist, and its provision for the
    exchange of
facta

applies.

[14]

I am therefore directing that this motion for
    leave pursuant to s. 131 of the
POA

shall be heard orally. I do
    not foreclose the possibility that the court may, in an appropriate case, hear
    a motion for leave to appeal where the moving party is represented by counsel
    in writing. In this case, however, I am not persuaded to depart from the
    courts usual practice of hearing such motions orally. The parties have agreed
    on a timetable, including the exchange of
facta
. The motion for leave
    is returnable on June 18, 2020. Costs in this appearance are reserved until the
    motion for leave is determined.

David
    M. Paciocco J.A.


