



COURT OF APPEAL FOR ONTARIO

CITATION: North Bay (City) v. Vaughan, 2018 ONCA 319

DATE: 20180328

DOCKET: M48246

Brown J.A. (Motion
    Judge)

BETWEEN

The Corporation of the
    City of North Bay

Responding Party

and

Joanne Vaughan

Moving Party

Andrew Burgess, for the moving party

Scott Lemke, for the responding party

Heard: March 19, 2018

REASONS FOR DECISION

I.

OVERVIEW

[1]

The applicant, Joanne Vaughan, applies under s. 131 of the
Provincial
    Offences Act
, R.S.O. 1990, c. P.33 (the 
POA
), for leave to
    appeal the judgment of Justice Lalande of the Ontario Court of Justice made May
    9, 2017 that dismissed her appeal from the conviction and sentence imposed by
    Justice of the Peace Scully on May 1, 2015.


II.

PROCEDURAL HISTORY

[2]

In November 2012, the applicant was charged with operating a rental unit
    without holding a current valid licence contrary to the City of North Bays
    residential rental housing bylaw.

[3]

The applicant obtained the required licence in February 2013. She and
    her husband sold the property in April 2013.

[4]

The applicants trial before Justice of the Peace Scully was held in May
    2015.

[5]

The applicant did not attend the trial but was quite aware it was taking
    place. She was represented by counsel.

[6]

At the trial, through her counsel, the applicant entered a plea of not
    guilty. However, she did not contest the facts read in by counsel for the City.
    A conviction was entered. Counsel made a joint submission on sentence, which
    the Justice of Peace accepted. The Justice of the Peace suspended the sentence
    and ordered the applicant not to operate a rental unit without holding a valid
    licence for two years.

[7]

The applicant appealed to the Ontario Court of Justice. She took the
    position that her counsel did not follow her instructions to vigorously contest
    the charge. Three witnesses testified before the appeal judge: the applicant
    and the two lawyers who acted for her immediately before and at the trial,
    Geoffrey LaPlante and Killian May. The appeal judge dismissed the appeal.

III.

GROUNDS FOR LEAVE TO APPEAL

[8]

The applicant seeks leave to appeal on a single ground: at trial she
    entered what amounted to an uninformed guilty plea, which should be set aside.
    The applicant casts this as a question of law involving special circumstances
    for which it is essential in the public interest or for the due administration
    of justice that leave be granted. The applicant contends that hearing her
    appeal would enable this court to provide needed guidance on the law governing
    pleas entered in a defendants absence. Her appeal would help clarify this
    underdeveloped area of the law which affects the rights of so many people
    across the province.

[9]

If leave to appeal is granted, the applicant will seek to adduce fresh
    evidence. She submits that the admissibility of the fresh evidence also gives
    rise to a question of law that supports her application for leave.

IV.

ANALYSIS

The standard for leave to appeal

[10]

The
    standard for leave to appeal under s. 131 of the
POA
was stated by
    this court in
Antorisa Investments Ltd. v. Vaughan (City)
, 2012 ONCA
    586, 1 M.P.L.R. (5th) 240 (In Chambers), at para. 8:

The law on s. 131 is well-settled: see, for example,
R.
    v. Castonguay Blasting Ltd
., 2011 ONCA 292 (in Chambers), at paras.
    14-15. In order for the Applicants to obtain leave, they must establish: (i)
    special grounds; (ii) on a question of law alone; and (iii) 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.  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.  The threshold for
    granting leave is very high.

The proposed fresh evidence

[11]

The
    applicant has filed an affidavit from Ms. Jessica Gagne, a lawyer in her appeal
    counsels office, that attaches an email sent by the applicant and dated May 1,
    2015  the date of the hearing before the Justice of the Peace  to her then
    counsel, Killian May.

[12]

The
    previous day, April 30, 2015, the applicant had signed instructions to Mr. May
    that stated:

I wish to accept the [Citys] offer.

I am voluntarily giving up my right to a contested trial and to
    assert full defences or indeed contest the facts that are being submitted by
    the Crown and are attached as EX 1.

I understand that despite the joint submission for no monetary
    penalty and not more than a two year order requiring compliance with the
    by-laws, by two experienced counsel, the Justice of the Peace can impose any
    sentence he or she sees fit.

[13]

Her
    May 1 email appears to have been sent before 8:30 a.m. on the day of trial. In
    it, the applicant wrote: Premise of no contest, as I understand it, is to
    entry [
sic
] a not guilty plea with the understanding the facts read
    from the city will not be disputable but they have to be truthful. The
    applicant then proceeded to take issue with certain of the facts and tell her
    counsel how he could demonstrate they were untrue. She wrote: Our offer is to
    stick to the facts alone - I will leave that other ridiculous thing in - Under
    Protest. She complimented her lawyer as a most excellent and skilled lawyer.
    The applicant advised she would call her lawyer at 8:30 a.m. to briefly go
    over the matter.

[14]

It
    appears from Ms. Gagnes affidavit that the paralegal who represented the
    applicant before the appeal judge possessed copies of the May 1, 2015 email.
    Although the paralegal cross-examined the applicants trial counsel on his handling
    of the case, she did not refer to the May 1, 2015 email from the applicant to
    her trial counsel or mark it as an exhibit.

[15]

As
    I understand the applicants argument, she submits that the May 1, 2015 email
    constitutes fresh evidence that is cogent, in the sense that it could have
    reasonably affected the decision of the appeal judge:
Palmer v. The Queen
,
    [1980] 1 S.C.R. 759, at p. 775; and
R. v. Hartman
, 2015 ONCA 498, 336
    O.A.C. 329, at para. 20. It follows, the applicant contends, that it would be
    in the interests of justice to admit the fresh evidence and that evidence would
    result in this court setting aside her conviction based on not contesting the
    facts, thereby avoiding a miscarriage of justice. She argues that the
    availability of cogent fresh evidence that likely would result in setting aside
    the conviction amounts to a question of law within the meaning of s. 131 of the
POA
.

[16]

I
    am not persuaded by this submission. Putting to one side how the applicant
    attempts to cast the issue about the May 1, 2015 email as a question of law, I
    see no merit in her submission that the email amounts to cogent fresh evidence
    that was not available to place before the appeal judge.

[17]

The
    May 1, 2015 email obviously existed at the time of the 2017 appeal.

[18]

Moreover,
    although not entered as an exhibit, the gist of the email found its way into
    the applicants evidence-in-chief. The applicant had drafted a factum dated
    December 16, 2015, which was marked on the appeal as her evidence-in-chief. In
    it, the applicant acknowledged that the day before the trial Mr. May reviewed
    with her the evidence the City proposed to submit at the hearing. The applicant
    recounted, in some detail, her position that certain of the statements by the
    City were false and contestable. The factum/evidence-in-chief essentially set
    out the gist of the applicants May 1, 2015 email to Mr. May. Accordingly, that
    evidence was before the appeal judge.

[19]

As
    well, the applicant did not refer to the May 1, 2015 in her
    factum/evidence-in-chief. Nor did she refer to the email in the wide-ranging
    evidence she gave during her cross-examination. Nor did the applicants
    paralegal put the May 1, 2015 email to Mr. May during cross-examination.

[20]

This
    does not appear to have been an omission. Part way through her cross-examination
    of Mr. May the applicants paralegal asked for a brief adjournment because [m]y
    client would like to speak to me and shes writing profusely. I cant keep up
    with all the pieces of paper shes handing me. The appeal judge granted the
    adjournment. Notwithstanding that the applicant had ample opportunity to put to
    Mr. May the questions she desired, for whatever reason she chose not to question
    Mr. May on the May 1, 2015 email before the appeal judge.

[21]

Given
    those circumstances, I see no basis upon which the May 1, 2015 email gives rise
    to a question of law or somehow assists the applicant in meeting the high
    threshold for leave to appeal under s. 131 of the
POA
.

The question of law advanced by the applicant

[22]

Notwithstanding
    the applicant describes her appeal as raising a question of law, she submits in
    her factum that an appeal to this court would be her first appeal from
    [Justice Lalandes] findings of fact. That more accurately captures the
    essence of her proposed appeal  a challenge to the appeal judges findings of
    fact.

[23]

The
    issue before the appeal judge was straight-forward: Did the applicant instruct
    trial counsel to enter a plea of not guilty, not dispute the Citys facts, and then
    proceed with a joint submission on sentence? That called for a factual inquiry.

[24]

The
    appeal judge made clear findings of fact. He did not accept the applicants
    evidence that she was confused by the offer the City made the day before trial
    or what would be involved in pleading not guilty, but not contesting the facts.
    The appeal judge held: It is difficult in looking at all of this in these
    circumstances to conclude that [the applicant] was somehow caught off-guard
    when speaking with Mr. May and confused about what his instructions were to
    be.

[25]

The
    appeal judge noted that this is not a case where a respondent did not speak to
    his or her agent. There was no evidence that anything was lost in any
    interpretation by [the applicant] in her instructions.

[26]

He
    found that the applicant had provided her trial counsel with instructions that
    were sufficient and focused. They were reduced to writing. The appeal judge
    found that trial counsels instructions were not boiler-plate. Instead he
    proceeded on the basis of a strategy which was well-balanced and reasonably
    crafted. He concluded: There is no reason, when I look at the totality of the
    information before me, to conclude that a plea was entered on her behalf and
    against her wishes. This is not a case where [trial counsel] had unclear
    instructions. The joint submission on disposition was well thought out.

[27]

The
    appeal judges reasons disclose that he understood the applicant was contending
    her plea of not guilty, coupled with not contesting the facts, was functionally
    equivalent to a guilty plea. However, he concluded the applicant had instructed
    trial counsel to proceed on that basis. The applicant cannot point to any
    misapprehension of the evidence by the appeal judge in this regard. Nor does
    she challenge any of his findings as demonstrating a palpable and overriding
    error. That she disagrees with the appeal judges findings does not transform
    questions of fact into a question of law.

[28]

The
    applicants complaint is fact-based; it does not raise a question of law. The
    applicant has fallen far short of meeting the very high threshold for granting
    leave to appeal under s. 131 of the
POA
.


V.

DISPOSITION

[29]

The
    applicants application for leave to appeal is dismissed.

David Brown J.A.


