



COURT OF APPEAL FOR ONTARIO

CITATION:
Northern
    Bruce Peninsula (Municipality) v. Dolson, 2018 ONCA 895

DATE: 20181108

DOCKET: C64802

Watt, van Rensburg and Brown JJ.A.

IN THE MATTER OF an appeal under clause 116(2)(a) of the
Provincial
    Offences Act
, R.S.O. 1009, c. P.33, as amended

BETWEEN

Municipality of the Northern Bruce Peninsula

Appellant

and

Matthew Steven Dolson and Edward Kevin Doyle

Respondents

Nicholas Lovell, for the appellant

Jacob Damstra, for the respondents

Heard and released orally: November 5, 2018

On appeal from the decision of Justice Julia A. Morneau of
    the Ontario Court of Justice sitting on appeal under the
Provincial
    Offences Act
, allowing an appeal from the convictions entered on April 20,
    2016 and the sentences imposed on June 20, 2016 by Justice of the Peace Stewart
    A. Taylor.

REASONS FOR DECISION


[1]

With leave of the chambers judge, the Municipality appeals a decision of
    a judge of the Ontario Court of Justice sitting on appeal from convictions
    entered in Provincial Offences Court for breaches of a municipal by-law and the
Building Code Act, 1992
,
S.O. 1992, c. 23 (
BCA

).

[2]

For the purposes of the appeal to this court, we are concerned only with
    the conviction of the respondents for a breach of the
BCA
. The
    convictions based on a breach of the municipal by-law are not under appeal.

[3]

On appeal to the Ontario Court of Justice, the now respondents raised a
    number of grounds of appeal. All but one were rejected by the appeal judge and
    it is the one that succeeded that is the sole ground of appeal to this court.

[4]

To ensure that no miscarriage of justice occurred, the appeal judge
    considered an argument that had not been advanced at trial. That argument
    related to the limitation period applicable to proceedings under the
BCA
.
    On the basis of this courts decision in
R. v. Pickles
, [2004] O.J. No.
    662, the appeal judge concluded that the one-year limitation period under the
BCA
ran from the date the construction of the building was finished. The failure of
    the Municipality to establish that proceedings were instituted not more than
    one year after completion was fatal to the conviction. It was on this basis
    that the conviction under the
BCA
was quashed on appeal.

[5]

In reaching her conclusion on the limitation issue, the appeal judge
    relied on s. 36(8) of the
BCA
, which at one time required that
    proceedings for breaches of the Act be commenced no more than one year after
    the time when the subject matter of the proceedings arose. It was that
    provision that this court applied in
Pickles
to decide that the
    limitation period ran from the date that construction was completed.

[6]

What does not appear to have been drawn to the attention of the appeal judge
    was that on July 1, 2010, s. 36(8) of the
BCA
was amended to provide
    that the one-year limitation period commenced on the date that the facts on
    which the proceeding is based first came to the knowledge of an officer or the
    chief building official.

[7]

The first complaint about the offending structure came to the attention
    of the Municipality on October 15, 2012. After officials had attended at the
    property and issued compliance orders to no avail, an information was sworn and
    summons issued on June 12, 2013  about eight months following the initial
    complaint.

[8]

The appeal judge erred in law by applying the wrong limitation period to
    the case before her. This prosecution was instituted within one year of the Municipality
    first gaining knowledge of the structure. There was evidence at trial about
    this date and it was not open to the appeal judge to interfere with the trial
    courts finding on this issue. As a result, the decision of the appeal judge
    cannot be supported. It constitutes an error of law.

[9]

The respondent applies for leave to introduce fresh evidence on the
    hearing of the appeal. In our view, this evidence, which describes in
    significant detail the disabilities under which the respondent Doyle labours,
    does not meet the criteria for the admissibility of fresh evidence. We also
    note that the respondent did not seek the accommodations he now suggests should
    have been extended to him at trial. There, he was represented by counsel, and
    by a paralegal. Even if we were to receive the proposed fresh evidence, we are
    not persuaded that it would affect the reliability of the result reached at
    trial or the fairness of trial proceedings. In the result, we decline to admit
    the proposed fresh evidence.

[10]

The
    appeal is allowed, the decision of the appeal judge set aside and the
    convictions and sentences imposed at trial are reinstated. There shall be no
    order as to costs.

David Watt J.A.

K. van Rensburg J.A.

David Brown J.A.


