





CITATION:
Ontario (Attorney
          General) v. Lee, 2011 ONCA 444



DATE: 20110609



DOCKET: C52494



COURT OF APPEAL FOR ONTARIO



Blair, Watt and Epstein JJ.A.



BETWEEN



Attorney General of Ontario



Applicant (Respondent in appeal)



and



170 Glenville Road, King [PIN: 03407-0007(LT) (IN REM)
          and Wing
Kwong
Lee



Respondent (Appellant)



J. Thomas Curry and P.E.
Veel
, for the appellant Wing
Kwong
Lee



Robin
Basu
and Leslie
Zamojc
, for the applicant (respondent in
          appeal)



Heard & released
          orally:
June 2, 2011



On appeal from the order of Justice Hugh K. OConnell of the
          Superior Court of Justice dated July 2, 2010.



ENDORSEMENT



[1]

Mr. Lee seeks to set aside the order of Justice Hugh K.
    OConnell dated July 2, 2010 granting the Crowns application for forfeiture of
    lands owned by him at 170 Glenville Road in King, Ontario.  The property was forfeited pursuant to s.
    8(1) of the
Civil Remedies Act
, 2001
    S.O. 2001,
ch
. 28.

[2]

Mr. Lee purchased the property in late November 2005
    and testified that he did so for purposes of a residential property for his
    family and as a future investment for his teenage daughter.  It was never used for either purpose.

[3]

In April 2006, the police began an investigation of the
    property and on April 20, executed a search warrant that led to the discovery
    of a sophisticated marijuana grow operation capable of generating $1 million in
    revenue each three month grow period.

[4]

No criminal charges were ever laid against Mr. Lee, or
    anyone else, with respect with the grow operation.  The Attorney General of Ontario sought and
    obtained forfeiture of the property pursuant to Ontarios
Civil Remedies Act.

[5]

Mr. Lees defence to the forfeiture application was
    essentially that he had leased the property to a man he knew only as Stephen
    and had nothing to do with, or knowledge of, the marijuana grow operation.  He said he had met Stephen through a friend
    of a friend at Casino Rama and agreed at that time to lease the property to him.  He did not know Stephens last name or
    where to contact him.  He made no
    inquiries about the background, business or employment status of the man to
    whom he was leasing his $457,000 property investment that was made apparently
    for his daughters benefit.  Rental
    payments, he said, were made in cash.  While he said there was a lease, none was ever produced.  Phone bills, propane bills and hydro bills in
    his name were delivered to the house, but the tenant was to look after them,
    he said.

[6]

Not
    surprisingly, the application judge rejected the story outright.

[7]

In these circumstances, the question whether Mr. Lee
    was a responsible owner as contemplated by s. 8(3) of the
Civil Remedies Act
does not arise.

[8]

Mr. Curry submits that the application judge erred in
    making his factual findings and drawing inferences by way of application and
    that he should have directed the trial of an issue.  We do not agree.  There may well be cases where a trial is
    called for in proceedings of this nature, but this is not one of them.  We observe, first, that no one asked the
    application judge to direct the trial of an issue.  Secondly, this is not a case where there was
    conflicting testimony that had to be resolved in any significant way.  No one was putting forward a different
    version of the story presented by Mr. Lee.  The application judge simply rejected his explanation.  Once that rejection occurred, virtually
    everything in Mr. Lees favour from an evidentiary standpoint fell by the
    wayside.

[9]

We would not give effect to this ground of appeal.

[10]

Mr. Curry further submits that the application judge
    erred in law by failing to address his mind to the issue of whether there was
    evidence to the contrary rebutting the presumption established in s. 7(2) of
    the Act that evidence of past unlawful activity with respect to the property is
    proof that the property is likely to be used to engage in unlawful activity and
    therefore is an instrument of unlawful activity and subject to forfeiture to the
    Crown under s. 8(1).  Again, we do not
    agree.

[11]

The application judge did not specifically deal with
    this question at any one point in his reasons.  When the reasons are viewed as a whole, however, it is clear that he
    considered that argument as presented by the appellant and that during the
    course of his findings on the evidence, he rejected it.  He found that the property had been acquired
    for the express purpose of developing a marijuana grow operation and
    characterized the police officers description of the extensive operation as
    apt (indicating that he inferred it was intended to be a long term
    enterprise).  He rejected Mr. Lees
    assertions to the contrary [as] merely bold statements, unfounded in either
    inference that can be drawn from factual underpinnings or as beacons of common
    sense.

[12]

There was ample basis on the record for the application
    judge to conclude  as we are satisfied he did  that there was a complete
    absence of evidence to the contrary as contemplated by s. 7(2).

[13]

Finally, we see no basis for interfering with the
    application judges discretionary finding against the submission that it would
    not be in the interests of justice to make the forfeiture order, as
    contemplated in s. 8(1) of the Act.  The
    law with respect to this concept has recently been articulated by this court in
AG Ont. V. 8477 Darlington Crescent et
    al.
, 2011 ONCA 363.  The application
    judge did not have the benefit of this decision and did not approach his
    analysis in exactly the same fashion.  We
    are satisfied, however, that in substance, he applied the essential principles
    underlying
Darlington
, that he did
    not fail to take into account any material considerations and that it was open
    to him on the record to arrive at the conclusion he did.

[14]

Accordingly, the appeal is dismissed.  The respondent is entitled to its costs fixed
    in the amount of $4,500 all inclusive.

R.A. Blair J.A.

David Watt J.A.

Gloria Epstein J.A.


