



COURT OF APPEAL FOR ONTARIO

CITATION: Quinte West (Municipality) v. Balroop, 2016 ONCA
    657

DATE: 20160906

DOCKET: C58733

Feldman, Simmons and Lauwers JJ.A.

BETWEEN

Municipality of Quinte West

Respondent

and

Shakeel Balroop

Applicant/Appellant

Shakeel Balroop, acting in person

Jennifer Savini, for the respondent

Heard: August 25, 2016

On appeal from the decision of Justice Stephen J. Hunter
    of the Ontario Court of Justice, dated December 12, 2013.

ENDORSEMENT

[1]

On December 11, 2012, the appellant was
    convicted and fined $12,000 for a provincial offence  failing to comply with
    an order to remedy building code deficiencies. He filed a notice of appeal to
    the Ontario Court of Justice in accordance with the
Provincial
    Offences Act
, R.S.O. 1990, c. P 33
    (the Act)
. On December 12, 2013, the date of the
    scheduled appeal, an Ontario Court judge dismissed the appeal.

[2]

On a motion to this court, leave to appeal
    was granted in relation to two issues:

1.

Whether an appeal under s. 116 of the Act may be dismissed for
    failure to perfect, or for delay, in circumstances not authorized by the
Act
or the
Rules
    of the Ontario Court (General Division) and the Ontario Court (Provincial
    Division) in Appeals, under s. 116 of the Provincial Offences Act
, O. Reg. 723/94 (the Rules) passed under the Act; and

2.

Whether an appeal of such a dismissal properly lies to this court,
    with leave, under s. 131 of the
POA
.

[3]

With respect to the first issue, in our view, the municipalitys
    approach in bringing a motion to dismiss the appeal for failure to perfect, or
    for delay added an unnecessary complexity to the appeal proceedings before the
    appeal judge.  In simple terms, the appeal was scheduled to be heard December 12,
    2013 by Hunter J.  The appellant appeared and asked for an adjournment to allow
    him time to order, have prepared and file the remaining transcript. The appeal
    judge refused the adjournment and dismissed the appeal.

[4]

Before reaching his decision, the appeal judge demonstrated his
    conversancy with the decision under appeal and the lengthy process by which the
    appeal came before him. He discovered that the appellant had filed the notice
    of appeal with the court, but did not serve the municipality, which only
    discovered the appeal when it was contacted by the court to schedule the date
    for argument. He learned there was a lengthy delay in ordering the transcripts,
    and the appellant had still not ordered and paid for the remaining transcript as
    of the date of the appeal.

[5]

The appellants manifest delay was plain to the appeal judge, who noted:
    we havent received the transcripts, which had they been ordered and paid for
    properly, would have been here long before today.

[6]

We see no basis to set aside the appeal judges refusal to grant an
    adjournment. It was a discretionary decision. The appeal judges decision to
    deny the adjournment was amply justified on the facts, as was his consequential
    decision to dismiss the appeal.

[7]

To address the first issue directly, the municipalitys notice of motion
    to dismiss the appeal for failure to perfect or for delay was not necessary and
    did not add to the appeal judges inherent jurisdiction to proceed as he did.

[8]

The first issue arises because the appellant failed to file his notice
    of appeal as required and had not ordered all the transcripts. Thus, specific
    provisions of the Act and Rules
[1]
that authorize dismissal did not apply. However, the appeal had been listed for
    hearing and the appellant requested an adjournment. Having decided to deny the
    adjournment, the presiding judge had no option but to dismiss the appeal. Doing
    so was a matter that fell within the jurisdiction of the court to control its
    own process.

[9]

The second issue is fully answered in
R. v. A.E
. 2016, ONCA 243
    at paras. 23, 33-35. Just as a decision to deny an extension of time to
    appeal is a judgment within the meaning of s. 131 of the Act, so is a
    decision to refuse to grant an adjournment and dismiss an appeal for delay or
    failure to perfect. A defendant may appeal a judgment of the Ontario Court of
    Justice to the Court of Appeal, with leave on special grounds.  This is exactly
    what happened here.

[10]

The appeal is dismissed.  We award the municipality $1000 of the costs it
    requested payable by the appellant to the municipality under s. 129 of the
Provincial
    Offences Act,
given the lengthy delays and the proceedings involved in
    this matter. Costs are to be paid within 30 days to the clerk of the trial
    court, pursuant to s. 129 of the
Provincial Offences Act
.


K. Feldman J.A.

Janet
    Simmons J.A.


P.
    Lauwers J.A.





[1]
See s. 128 of the Act and s. 17 of the Rules.


