



COURT OF APPEAL FOR ONTARIO

CITATION: York (Municipality) v. Irwin, 2017 ONCA 906

DATE: 20171124

DOCKET: C63515

Sharpe, Epstein and van Rensburg JJ.A.

BETWEEN

The Regional Municipality of York

Applicant (Respondent)

and

Robert Irwin

Respondent (Appellant)

Gerard C. Borean, for the appellant

Chris G. Bendick, for the respondent

Heard: November 22, 2017

On appeal from the order of Justice M.L. Edwards of the Superior
    Court of Justice, dated February 23, 2017.

REASONS FOR DECISION

[1]

The appellant Robert Irwin is charged with
    various offences under Part III of the
Provincial Offences Act
, R.S.O. 1990, c. P.33 (the POA). He is alleged to have violated
    the
Building Code Act,
1992, S.O. 1992, c. 23,
    by not complying with six orders to comply the respondent issued in 2013 under
    that Act. The trial is proceeding before a justice of the peace.

[2]

The respondent, The Regional Municipality of
    York (York) asserts that various additions and alterations to Irwins
    property were constructed without a building permit. At trial Irwin testified
    that the 2013 orders were identical to orders to comply that had been issued
    against him in 1995 and 1996 (the Earlier Orders), that led to charges that
    were withdrawn. Irwin sought an order requiring York to provide disclosure of
    prior charges and prosecutions against him. The justice of the peace issued the
    disclosure order after hearing argument.

[3]

The respondent applied to the Superior Court for
    an order for
certiorari
under s. 140 of the
    POA. The application judge granted an order quashing the disclosure order and
    requiring the justice of the peace to continue with the trial of the charges.
    The application judge concluded that, although the Earlier Orders may well have
    applied to the same buildings on the property and required the same actions,
    they had different compliance deadlines and therefore constituted distinct
    offences.  York was entitled to issue more than one order to comply and each
    failure to comply would be a distinct offence. The application judge also
    accepted that, while the appellant might have relied on the withdrawal of the
    1996 charges had he appealed the six orders, he could not now attack the
    validity of the order having failed to avail himself of the appeal mechanisms
    under the
Building Code Act
.

[4]

The appellant appeals to this court by right,
    under s. 140(3) of the POA.  He says that the application judge ought not to
    have granted
certiorari
during the trial and
    that any issue as to the relevance of the Earlier Orders ought to have awaited
    an appeal post-trial. He argues that the application judge ought not to have
    granted the order he did without finding that a substantial wrong or
    miscarriage of justice had occurred, as required by s. 141(4) of the POA, and
    that the test is not met in this case.

[5]

The respondent accepts that the 2013 orders to
    comply replaced the Earlier Orders in respect of the same buildings and
    structures, but argues that the material difference between the orders is their
    compliance deadlines, and that therefore the application judge did not err in
    considering the disclosure request to pertain to irrelevant matters.

[6]

The respondent also contends that, even if the
    application judge did not expressly apply the s. 141(4) test for a substantial
    wrong or miscarriage of justice, that test is met on this record. Unless
certiorari
is granted the prosecution has no alternative but to
    disclose the records sought. The respondent says that it would be a substantial
    wrong to require the prosecution to produce documents that are patently irrelevant.
    The respondent argues that the disclosure order would have taken the trial down
    the wrong path and significantly complicated and prolonged the trial.

[7]

A justice of the peace who is hearing a trial of
    charges under Part III of the POA is entitled to determine questions of the
    relevance of evidence and to make disclosure orders, without such decisions
    being challenged mid-trial. Applications for
certiorari
should be granted only rarely. Most erroneous rulings made during a
    trial are appealable only at the end of the trial as part of an appeal against
    conviction, dismissal or sentence:
R. v. 1353837 Ontario Inc
., [2005] O.J. No. 656 (C.A.), at para. 18. The test for
    intervention mid-trial by
certiorari
under s.
    140 of the POA is whether the erroneous ruling makes the proceeding so unfair
    that the interests of justice require the court to intervene and grant
    prerogative relief:
135387
, at para. 24.

[8]

In our view the application judge erred by
    failing to consider the substantial wrong or miscarriage of justice test in s.
    141(4) of the POA, and in determining on the merits and mid-trial the issue of
    whether the Earlier Orders were relevant to the appellants defence. Even if
    the disclosure order were wrong, complying with it does not amount to a
    substantial wrong or miscarriage of justice. The disclosure order will not
    preclude the respondent from arguing that the materials disclosed are not in
    fact relevant and that what is disclosed does not afford a defence. By
    contrast, the effect of the application judges order is that any defence based
    on earlier compliance is effectively taken off the table. Whether or not the
    appellants argument amounts to a collateral attack on the order to comply,
    that issue should have been resolved at trial on a proper record, and it was
    premature for the respondent to bring the issue forward before the trial was
    concluded.

[9]

The appeal therefore is allowed and the order of
certiorari
is set aside.

[10]

Costs to the appellant fixed at $2,500,
    inclusive of applicable taxes and disbursements.

Robert J. Sharpe J.A.

Gloria Epstein J.A.

K. van Rensburg J.A.


