





CITATION:
R. v. Martin Grove Properties Ltd., 2011 ONCA
          711



DATE: 20111114



DOCKET: C53835



COURT OF APPEAL FOR ONTARIO



Rosenberg, Sharpe and Juriansz JJ.A.



BETWEEN



Her Majesty The Queen Ex. Rel. The Regional
          Municipality of York



Appellant



and



Martin Grove Properties Ltd.



Respondent



Hans J. Saamen, for the appellant



Paul Pape and Emilio Bisceglia, for the respondent



Heard and endorsed: November 10, 2011



On appeal from the decision of Justice William Gorewich of the
          Ontario Court of Justice, dated December 13, 2010, upholding the decision of
          Her Worship L. DeBartolo , dated January 18, 2010.



APPEAL BOOK ENDORSEMENT



[1]

The subject matter of the proceedings for the purpose of former s. 36(8)
    of the
Building Code Act
was the failure to comply with the order of
    March 31, 2008. That omission took place at the earliest after May 15, 2008
    when the respondent allegedly failed to comply with the terms of the order.

[2]

The charge, which was laid on January 27, 2009, was laid within the one
    year limitation period. The fact that there were other orders issued related to
    the same underlying acts by the respondent may be relevant to an argument that
    the prosecution was an abuse of process. That, however, was not the issue
    before the trial court or the Provincial Offences Appeal Court. Those courts
    erroneously relied upon
R. v. Pickles
, [2004] O.J. No. 662, a decision
    of this court which concerned s. 36(1)(c) of the Act. This charge was laid
    under s. 36(1)(b). See
Bogdanow v. Scott Martin Properties Ltd
., [1983]
    O.J. No. 72 (Ont. C.A.).

[3]

Finally, the fact that the municipality had other remedies under s. 38
    for failure to comply with orders to comply does not preclude resort to
    prosecution. This is clear from the words of s. 38 itself, which includes the
    phrase despite the imposition of any penalty in respect of the non-compliance
    and in addition to any other rights he or she may have. The s. 38 remedy is
    independent of prosecution under s. 36.

[4]

Accordingly, the appeal is allowed, dismissal of the charge is set aside
    and a new trial ordered.


