



COURT OF APPEAL FOR ONTARIO

CITATION: Mississauga (City) v. Khalid, 2020 ONCA 446

DATE: 20200706

DOCKET: M48073

Roberts J.A. (Motions Judge)

BETWEEN

City of Mississauga

Responding Party

and

Farhat Khalid

Moving Party

Farhat Khalid, acting in person

Robert Ryan, for the responding party

Hilary Book, appearing as
amicus
    curiae

Heard: in writing

REASONS
    FOR DECISION

A.

Overview

[1]

On June 24, 2016, the moving party was convicted by the justice of the
    peace of having more than one accessory structure on her property between the
    period September 16, 2013 to January 8, 2014, a contravention of s. 4.1.2.1 of the
    municipal zoning by-law, and an offence under the
Planning
    Act
, R.S.O. 1990, c. P.13: City of Mississauga, by-law 0225-2007,
Mississauga Zoning By-law
(June 20, 2007).

[2]

The moving party appealed her conviction and sentence. On June 2, 2017, the
    appeal judge dismissed her appeal for failure to file an abandonment of various
    grounds of appeal contrary to his order of April 17, 2017.

[3]

The moving party brought this motion for leave to appeal the dismissal of
    her appeal. It was initially returnable in motions court and then adjourned to permit
    the moving party to obtain and file transcripts and to be heard in writing with
    additional written submissions by
amicus

and the responding party.

B.

Test for leave to appeal under s. 131 of the
Provincial
    Offences Act

[4]

The moving party seeks leave to appeal the appeal judges dismissal
    of her appeal under s. 131 of the
Provincial Offences Act
,
    R.S.O. 1990, c. P.33, which

reads as follows:

131 (1) A defendant or the prosecutor or the
    Attorney General by way of intervention may appeal from the judgment of the
    court to the Court of Appeal, with leave of a judge of the Court of Appeal on
    special grounds, upon any question of law alone or as to sentence.

(2) No leave to appeal shall be granted under
    subsection (1) unless the judge of the Court of Appeal considers that in the
    particular circumstances of the case it is essential in the public interest or
    for the due administration of justice that leave be granted.

[5]

In order for the moving party to obtain leave, she
    must satisfy the following well-established criteria: (1) special grounds; (2)
    on a question of law alone; and (3) that, in the particular circumstances of
    this case, it is essential in the public interest or for the due administration
    of justice that leave be granted:
Antorisa Investments Ltd. v. Vaughan (City)
,
    2012 ONCA 586, 1 M.P.L.R. (5th) 240, at para. 8;
North Bay (City) v.
    Vaughan
, 2018 ONCA 319, at para. 10. What constitutes special grounds in
    s. 131(1) is informed by the requirement in s. 131(2) that it is essential
    in the public interest or for the due administration of justice that leave be
    granted:
Antorisa Investments Ltd.
, at para. 8. The threshold for granting
    leave is very high and leave should be granted sparingly:
Antorisa
    Investments Ltd.
, at para. 8;
Ontario (Ministry of the Environment and
    Climate Change) v. Sunrise Propane Energy Group Inc.
, 2018 ONCA 461, 17
    C.E.L.R. (4th) 174, at para. 13.

C.

Issues

[6]

Ably assisted by
amicus
, the moving
    party raises various grounds in support of her motion for leave to appeal,
    which I summarize as follows:

1.

The appeal judge was
biased
and prejudiced
    against the moving party because of previous attendances on another matter. There
    was a failure of natural justice because the appeal judge dismissed the appeal without
    giving the moving party an opportunity to be heard on the merits. It is
    therefore essential for the due administration of justice that leave be
    granted.

2.

The appeal from conviction and sentence has merit because the justice of
    the peace erred in determining that the by-law contravention continued and the charges
    against the moving party were therefore laid within the applicable six-month
    limitation period. This was an error of statutory interpretation and it is therefore
    essential to the public interest that leave be granted.

D.

Analysis

(1)

The Natural Justice Issue Does Not Warrant Leave to Appeal

[7]

The moving party submits the appeal judge was biased and prejudiced
    against her because of their previous interactions on attendances in another
    proceeding. As indicated in the September 23, 2016 transcript from that
    proceeding, the appeal judge dismissed the moving partys motion to restore her
    appeal and advised her husband, a paralegal who represented the moving party,
    that he did not want to see him again. The moving party submits that the appeal
    judge should have adjourned the appeal to another judge in the present
    proceeding, as requested by the moving party, and as the appeal judge indicated
    on the April 17, 2017 attendance. Instead, the moving party maintains, he
    unreasonably dismissed the moving partys appeal without a hearing.

[8]

These submissions have failed to establish that the due administration
    of justice requires leave to appeal be granted in this case to address a failure
    of natural justice. I see nothing in the three transcripts of the various attendances
    before the appeal judge, filed in support of the moving partys motion, that would
    displace the strong presumption of judicial impartiality:
Yukon
    Francophone School Board, Education Area #23 v. Yukon (Attorney General)
,
    2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20 and 25. Nor do the transcripts ground
    any other claim that natural justice was denied.

[9]

While the appeal judge expressed himself awkwardly on the September 23,
    2016 attendance, a fair reading of the transcript and the context of the
    proceedings demonstrate that by his impugned statement, the appeal judge simply
    indicated, albeit with some frustration, to the moving partys husband that the
    proceeding was over and there would be no more attendances. That the appeal
    judges expression of frustration on September 23, 2016 in another proceeding did
    not rise to bias or prejudice in the present proceeding is shown by his allowing
    the moving party yet another adjournment and opportunity to put her appeal in
    order. That the appeal judge allowed the requested adjournment does not equate
    with an agreement that he should not hear the appeal.

[10]

I
    also see no error or failure of natural justice in the exercise of the appeal
    judges discretion to dismiss the appeal because of the moving partys failure
    to comply with his April 17, 2017 order. Considered in the context of these
    proceedings and, especially, the moving partys failure to perfect her appeal in
    a timely manner, the appeal judges dismissal of the appeal was reasonable and
    fair and within his discretion to control the courts process.

[11]

On
    November 18, 2016, the moving party was granted an adjournment to perfect her
    appeal by ordering the requisite transcripts. The moving party failed to do so.
    On April 17, 2017, the moving party submitted that she did not need the transcripts
    since she was prepared to abandon her numerous other grounds of appeal and pursue
    only the limitation period issue. As already noted, the appeal judge granted
    the moving party a further adjournment to June 2, 2017 to allow her to file a
    notice of abandonment of the other grounds of appeal. The order clearly
    provided that if the moving party failed to file the notice of abandonment, the
    appeal would be dismissed. On June 2, 2017, the moving party acknowledged her
    failure to file a notice of abandonment and provided no reasonable explanation
    for her failure to do so. The appeal judge accordingly dismissed the appeal.

[12]

I
    see no basis on which this court would interfere with the appeal judges discretionary
    order. It is not essential to the due administration of justice that the
    natural justice issue be raised on appeal given that it lacks merit.

[13]

This
    conclusion is sufficient to dispose of the moving partys motion for leave to
    appeal.

(2)

The Limitation Period Issue Does Not Warrant Leave to Appeal

[14]

While
    it is unnecessary for me to address the justice of the peaces disposition of the
    limitation period issue, for completeness, I would simply note that this ground
    raises neither an issue of law, nor a matter essential to the public interest
    or administration of justice. Rather, it represents a challenge to the justice of
    the peaces factual findings concerning the moving partys construction of the
    structures in issue. Her determination that the charge was laid within the applicable
    six-month limitation period was based on her factual finding that further construction
    occurred up to January 8, 2014. These factual findings are dispositive of the limitation
    period issue. This ground therefore does not meet the criteria for leave to
    appeal.

E.

Disposition

[15]

For these reasons, I conclude that the moving
    party has not met the high threshold for obtaining leave to appeal and I dismiss
    the motion.

L.B.
    Roberts J.A.


