



COURT OF APPEAL
    FOR ONTARIO

CITATION: Ontario (Transportation) v. 2523654 Ontario Inc.,
    2019 ONCA 370
DATE: 20190506

DOCKET: C66302

Watt, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen in
    right of Ontario as represented by the Minister of Transportation

Applicant (Respondent)

and

2523654 Ontario Inc.,
    Aamir Khan, Abdul Qayyum Mian and Sam Guido

Respondents (Appellants)

Eric Gionet and Andrew Wood, for the appellants

Sarah Valair, for the respondent

Heard and released orally:  May 3, 2019

On appeal from the order of Justice Guy DiTomaso of the Superior
    Court of Justice, dated November 26, 2018 with reasons reported at 2018 ONSC 7060

REASONS FOR DECISION

[1]

The appellants appeal from the order of the application judge who granted
    the respondents application and dismissed the appellants cross-application.

[2]

The proceedings arise out of the placement of trailers with signs on
    them on property that borders Highway 400 such that the signs can be seen by
    motorists using the highway.

[3]

The respondent gave notice to the appellants that the trailers and the
    signs violated the
Public Transportation and Highway Improvement Act
,
    R.S.O. 1990, c. P.50 (
PTHIA
). The respondent required that the
    appellants remove the signs.  The appellants refused. The respondent brought an
    application, pursuant to s. 112 of the
PTHIA
, for a warrant directing
    the Sheriff to take such steps as may be necessary to enable the Minister of
    Transportation to have the signs removed. The appellants brought a
    cross-application for a declaration that the signs were permitted. The
    application judge granted the respondents application and dismissed the
    appellants cross-application.

[4]

There is no dispute that the signs are within 400 metres of Highway 400
    and are, consequently, presumptively in violation of the provisions of the
PTHIA
.
    The appellants point to the fact that the respondent relied on incorrect
    subsections of the
PTHIA
when it directed the appellants to remove the
    signs.

[5]

While there was at least one reference to an incorrect subsection of the
PTHIA
, we agree with the application judge that that error is a mere
    irregularity that does not vitiate the legal authority of the direction given. There
    is no doubt that the appellants were well aware of the issue that the
    respondent was taking with their signs. The appellants were, therefore, on full
    notice of the issue being raised and were not, in any way, misled because of
    the erroneous reference.

[6]

Another issue raised by the appellants is that the authorization that
    the Minister issued to a third party to have the signs removed did not specify
    which specific signs were subject to the authorization. Indeed, the
    authorization referred only to a sign and not to signs. The application
    judge recognized that this was a problem with the authorization and ordered
    that the respondent shall immediately deliver a supplementary Authorization
    to specifically identify the seven portable signs that were in issue.

[7]

We agree with the appellants that the application judge ought not to
    have made an order of this type that the respondent had not sought. However,
    all that the application judges order did was direct the respondent to do
    something that it could have done on its own. Once the error was recognized, there
    was nothing that prevented the respondent from issuing a fresh authorization
    with the seven signs identified. Thus, the order made by the application judge
    is of no consequence in the ultimate result.

[8]

Finally, we agree with the application judge that the appellants
    cross-application had to be dismissed. The declaration that the appellants
    sought fundamentally confuses the provisions of the respondents sign policy
    with the general prohibition against signs within 400 metres of a highway under
    the
PTHIA
. On that latter point, in our view highway 400 is both a
    controlled access highway and a Kings Highway under the PTHIA.

Conclusion

[9]

The appeal is dismissed with costs to the respondent payable by the
    appellants jointly and severally and fixed in the agreed amount of $8,500 inclusive
    of disbursements and HST.

David
    Watt J.A.
G. Pardu J.A.

I.V.B. Nordheimer J.A


