



COURT OF APPEAL FOR ONTARIO

CITATION: Haver v. Credit Valley Conservation Authority, 2021
    ONCA 156

DATE: 20210312

DOCKET: C68310

Watt, Benotto and Jamal JJ.A.

BETWEEN

Gregory Haver and Juliana Sprott-Haver

Applicants (Appellants)

and

Credit Valley Conservation Authority and
Lorne Park Estates Association

Respondents (Respondents)

David E. Lederman, Julie Rosenthal and Larissa Fulop,
    for the appellants

Paul DeMelo and Kristie Jennings, for the respondents

Heard: March 2, 2021 by video conference

On appeal from the judgment of Justice Jamie K. Trimble of
    the Superior Court of Justice, dated March 25, 2020, with reasons at 2020 ONSC
    1841.

REASONS FOR DECISION

Introduction

[1]

A person builds a retaining wall on a neighbours property without a permit.
    The neighbour, on whose property the illegal wall was built, pleads guilty to a
    provincial offence and agrees with the Crown to jointly propose a sentence that
    would require the wall to be removed. Should the person who built the illegal
    wall on their neighbours property be allowed to intervene in the neighbours
    sentencing to argue that the wall should not be removed? That is the issue on
    this appeal.

Background

(a)

The appellants build a retaining wall on the Associations property
    without written permission contrary to the
Conservation Authorities Act

[2]

The appellants, Gregory Haver and Juliana Sprott-Haver, are homeowners
    in the Lorne Park Estates neighbourhood of Mississauga. In 2016, they built a
    retaining wall on the neighbouring property of the Lorne Park Estates Association
    (Association). The Association holds property in common for all residents of
    Lorne Park Estates.

[3]

Because the retaining wall was built on property adjoining a wetland, its
    construction required written permission from the Credit Valley Conservation
    Authority (Authority) under the
Conservation Authorities Act
, R.S.O.
    1990, c. C.27 (Act) and O. Reg. 160/06 (Regulation). The Authority was
    established under the Act with responsibility for the conservation, restoration,
    development, and management of natural resources within the Credit River
    Watershed, including where the wall was built.

[4]

The appellants say they obtained permission to build the wall from the
    Associations president but they did not obtain written permission from the
    Authority as required by the Act and Regulation.

(b)

The Association pleads guilty to provincial offences

[5]

In June 2019, the Association pleaded guilty before a justice of the
    peace to provincial offences of interfering with and developing a wetland by
    construction of a retaining wall without written permission from the Authority.

[6]

When entering the Associations guilty pleas, counsel for the
    Association accepted that the retaining wall had been built on its property
    without written permission from the Authority and was thus an illegal
    encroachment. He stated that the Association was pleading guilty because it had
    been charged with strict liability offences. He also said he understood that the
    Authority would seek a sentence requiring removal of the wall, which the
    Association also sought in civil proceedings.

(c)

The justice of the peace dismisses the appellants application for leave
    to intervene in the Associations sentencing

[7]

Counsel for the appellants, who were present for the guilty pleas, then
    applied to intervene in the sentencing. They wished to argue that the wall
    should not be removed. The Authority and the Association opposed their
    application.

[8]

Although the justice of the peace accepted that the court had
    jurisdiction and discretion to grant intervener status, she dismissed the
    appellants application for leave to intervene. In her view, the civil action
    underway was the more appropriate venue to deal with the appellants claim to
    keep the wall on the Associations property.

[9]

The justice of the peace then adopted the Authoritys and the Associations
    joint position on sentence. She ordered the Association to rehabilitate the
    wetland by removing the wall and restoring the vegetation by September 18,
    2020.

(d)

The Superior Court dismisses the appellants application for
certiorari

[10]

The
    appellants applied for
certiorari
under s. 140 of the
Provincial
    Offences Act
, R.S.O. 1990, c. P.33 to quash the order dismissing their
    application to intervene in the sentencing. The application judge dismissed the
    application. He concluded the appellants had not met the high bar of
    establishing that a substantial wrong or miscarriage of justice had occurred
    under s. 141(4) of the
Provincial Offences Act
.

[11]

The
    application judge ruled: (1) the appellants had no direct interest in the
    Associations land on which the non-compliant structure was built and no
    expertise to offer the court on whether the wall should be left in place; they
    simply preferred to keep the wall on the Associations land, even though both the
    Authority and the Association wanted the wall removed; (2) the appellants could
    have sought written permission from the Authority to build the wall or could
    have built it on their own land; (3) the appellants did not acquire a right to be
    heard in the Provincial Offences Court by building an illegal wall on the
    Associations land; and (4) the appellants voice could be heard in a later proceeding
    when the Authority would decide whether to grant a permit to remove the wall.

Issues

[12]

The
    appellants appeal to this court as of right under s. 140(3) of the
Provincial
    Offences Act
. They say they should have been allowed to intervene in the
    Associations sentencing because: (1) their adjoining land would be affected by
    removal of the wall from the Associations land; (2) there is no adequate
    alternative remedy to address their grievance that the court should not have
    ordered the wall removed without hearing from them; and (3) the application
    judge erred in describing the wall as an illegal structure, as the appellants
    say the Association gave them permission to build the wall even if the
    Authority did not.

Discussion

[13]

Section
    141(4) of the
Provincial Offences Act
provides that the Superior Court
    of Justice shall not grant relief
in the nature of
certiorari
unless the court finds that a substantial wrong or miscarriage of justice has
    occurred. This court has directed that applications for
certiorari
under the
Provincial Offences Act
should be granted only rarely:
R.
    v. 1353837 Ontario Inc.
(2005), 74 O.R. (3d) 401 249 D.L.R. (4th) 720
    (C.A.), at para. 18;
York (Municipality) v. Irwin
, 2017 ONCA 906, 68
    M.P.L.R. (5th) 179, at para. 7.

[14]

We
    do not accept that the application judge made any reviewable error in refusing
certiorari
.
    The application judge did not err in seeing no substantial wrong or
    miscarriage of justice in the justice of the peaces discretionary decision to
    dismiss the appellants application for leave to intervene in the Associations
    sentencing.

[15]

Granting
    intervener status is discretionary. Intervention is granted sparingly in
    criminal and quasi-criminal cases, because it can be unfair to allow third
    parties to interpose themselves in what is ordinarily a binary
lis
between the Crown and an accused: see generally
R. v. Morris
, 2019
    ONCA 509, at para. 3;
R. v. Middleton
, 2010 ONCA 610, at para. 6;
R.
    v. Seaboyer
(1986), 50 C.R. (3d) 395 (Ont. C.A.), at p. 398; and
R. v.
    MacKay
, 2020 BCCA 258, 394 C.C.C. (3d) 331, at para. 20. It is unusual for
    a court to allow an intervention at a sentencing. Usually only the Crown and
    the accused can properly speak to the outcome of a case:
R. v. J.L.A.
,
    2009 ABCA 324, 464 A.R. 310, at para. 3.

[16]

Here,
    the unfairness in allowing the appellants to intervene in the Associations
    sentencing is obvious. The wall was undoubtedly illegal because it was built
    without written permission from the Authority contrary to the Act and
    Regulation. The Authority and the Association proposed a joint submission on
    sentence to require removal of the wall. The appellants wanted the court to
    reject that submission and to require the Association to keep an illegal wall on
    its land. It would have been unfair to require the Association to respond to that
    submission, when the Authority  which spoke for the public interest  sought the
    opposite.

[17]

Even
    had the justice of the peace found that the appellants had a direct interest in
    the outcome of the sentencing by having built an illegal wall on the
    appellants land, she still would have been justified in refusing them leave to
    intervene. As the application judge found, the appellants had no expertise that
    would help the court make an informed decision on sentence, especially given
    the joint sentence proposal. We see no basis to disturb that conclusion.

[18]

The application
    judge thus made no reviewable error in refusing
certiorari
.

Disposition

[19]

The
    appeal is dismissed. The appellants shall pay the respondents costs of the
    appeal
in the agreed amount of $20,000
all
    inclusive.

David Watt J.A.

M.L. Benotto J.A.

M. Jamal J.A.


