



COURT OF APPEAL FOR ONTARIO

CITATION: Mehedi v. Smith, 2019 ONCA 148

DATE: 20190226

DOCKET: C64632

Feldman, Paciocco and Zarnett JJ.A.

BETWEEN

Golam Mehedi

Appellant

and

Dale Smith, M.A. Hameed, Wendell Lacombe
    and Gordon Mackay, C.O.B. Job Success, 2057161 Ontario Inc.

Glenroy Bastien, for the appellant

Karen Papadopoulos, for the respondent Her Majesty the
    Queen in Right of Ontario
[1]


Heard: February 13, 2019

On appeal from the order of Justice Michael R. Dambrot of
    the Superior Court of Justice, dated November 20, 2017.

REASONS FOR DECISION

[1]

After unsatisfactory dealings with an entity known as Job Success, the
    appellant, Golam Mehedi, commenced a civil action in the Superior Court of
    Justice against Job Success and three individuals he alleged were connected to
    it: Dale Smith, Abdul Hameed and Wendell Lacombe. His action, commenced in
    January 2011, was dismissed in June 2011. His appeal from that result was dismissed
    by this court in January 2012.

[2]

A CBC Marketplace episode, which the appellant believed provided
    evidence in support of his claim, aired in February 2012. The appellant moved
    to reopen his civil action. In November 2014 a judge of the Superior Court
    denied his request, but in October 2015 this court allowed an appeal from that
    decision, finding the motion judges reasons to have been inadequate.

[3]

The appellant, with legal advice, then settled his civil action. He subsequently
    moved to set aside the settlement and reopen the action, but a judge of the Superior
    Court dismissed his motion in July 2016.

[4]

On November 24, 2016 the appellant swore a private information against
    the same three individuals he had sued  Smith, Hameed and Lacombe  for the
    offence of fraud under $5,000.

[5]

A pre-enquete hearing was held before Justice of the Peace R. Roffey on
    April 6, 2017. J.P. Roffey declined to issue a warrant or summons directed at the
    proposed accused. She found there was no
prima facie
case against
    Lacombe, and even though there was such a case against Smith and Hameed, she
    would exercise her discretion not to issue process. She provided a number of
    grounds for doing so, including the fact that the limitation period for summary
    conviction proceedings had lapsed and a trial by indictment was not warranted,
    as well as the absence of a reasonable prospect of conviction on the criminal
    standard.

[6]

On April 20, 2017, the appellant swore a second private information
    against a fourth individual, Gordon Mackay, for the same offence. A pre-enquete
    hearing was held on June 22, 2017 before Justice of the Peace R. Giulietti, who
    refused to issue process. She cited, among other things, the lack of a
prima
    facie
case as there was insufficient evidence to charge Mackay, and a
    concern about the appellants purpose in attempting to bring criminal
    proceedings after his civil proceedings had been terminated.

[7]

The appellant brought an application for
certiorari
to quash both
    the decisions of J.P. Roffey and J.P. Giulietti not to issue process. On
    November 20, 2017, Dambrot J. dismissed that application, holding that neither
    of the Justices of the Peace had made a jurisdictional error. The appellant
    appeals that decision.

[8]

In our view, there is no merit to the appeal. No error is evident in the
    application judges decision. The appellants submissions have not disclosed an
    error in jurisdiction by either Justice of the Peace. A jurisdictional error is
    necessary for a
certiorari
application of this nature to succeed:
R.
    v. Russell
, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 19.

[9]

Moreover, Crown counsel before us asserted that even if a Justice of the
    Peace had issued process, the Crown would have been duty-bound to withdraw
    charges on the basis that there was no reasonable prospect of conviction and no
    public interest in proceeding with the charges. Even where a Justice of the Peace
    has erred in declining to issue process, a person seeking to quash that refusal
    to issue process has suffered no prejudice if the Crown would have stayed the
    proceeding. An appeal from a refusal under those circumstances may be
    dismissed:
R. v. Olumide
, 2015 ONCA 18.

[10]

Accordingly,
    on both grounds set out in paragraphs 8 and 9 above the appeal is dismissed.

K. Feldman J.A.

David M. Paciocco J.A.

B. Zarnett J.A.





[1]

The order of the Superior Court from which this appeal arises
    names as respondents persons who were not party to the appellants application
    for prerogative relief. The Crown is the properly named respondent.


