ATS Container Services Inc. v. Caledon (Town), 2019 ONCJ 554

CITATION: ATS Container Services Inc. v. Caledon (Town) , 2019 ONCJ 554 DATE: August 2, 2019 Orangeville Court File Number: 18-3342-01/02 ONTARIO COURT OF JUSTICE BETWEEN: Les Services de Contenuers ATS Inc. Operating As ATS Container Services Inc. Appellant and The Corporation of the Town of Caledon Respondent Justice B. E. Pugsley Heard: August 2 nd , 2019 Released: August 2 nd , 2019 Appearances: Mr. Christopher Lee for the Appellant (Moving Party) Ms. Alana Vandervoort for the Respondent (Responding Party) ENDORSEMENT 1 . The Appellant was convicted of breaching a bylaw passed by the Respondent. It appeals.

Prior to the hearing of the appeal the Appellant moves for an order allowing it to introduce fresh evidence on the appeal. 2 . The Appellant and an individual defendant were charged with two offences under the Respondent’s zoning bylaw. The individual defendant was acquitted of both counts. The Appellant was acquitted of one count and found guilty of the second and fined. It appeals that conviction and the sentence. 3 .

Briefly, the Appellant was convicted of having items (shipping containers) in an accessory area stacked one on the other such that the overall height exceeded the maximum height stipulated in the bylaw: 5 metres. 4 . During the trial a witness testified as to observing and photographing the setup at the Appellant’s property in the Town of Caledon. He supported his view as to the total height of the stacked containers with his belief (founded in part by reference to an internet search) as to the standard size of shipping containers of the type he viewed and photographed. 5 .

The Appellant seeks to file for the first time on appeal evidence culled from the internet as to the sizes of different types of shipping containers. It argues that the prosecution had a duty to disclose before the trial the website used by its witness and had the prosecution done so the Appellant would have been able to respond to that evidence at the trial. The need for the evidence was not foreseeable. For the evidentiary record to be complete the added evidence ought to be permitted. 6 .

The Respondent states that the test for the admission of fresh evidence on appeal has not been met and that in any event the evidence is not relevant to the outcome of the appeal. 7 . The Provincial Offences Act RSO 1990 (“the Act ”) contains a complete code for the trial and appeal of minor offences against provincial law. The procedure is designed to be simple and approachable such that self-represented parties can present their case and be dealt with in a just way. On an appeal of charges laid under

Part III of the Act added evidence (including oral evidence) may be permitted. Further, although rarely seen, appeals may be heard as a trial de novo . This is in the spirit of a process often undertaken by self-represented parties with no legal background. This procedure also parallels the process made available but hardly ever used in a

Summary Conviction Appeal under

section 822 of the Criminal Code . 8 . Practically, however, as the laws dealt with under the Act became more complex, and began to engage applications under the Canadian Charter of Rights and Freedoms , the process has come to parallel that used in the criminal courts. Trials de novo are so rare as to be nearly unheard of, and motions to adduce fresh evidence are curtailed by case law applicable here. The evidence now sought to be adduced had to have been not available or not discoverable by a diligent appellant at the time of the trial. 9 .

In my view the Appellant is now seeking to enter into evidence material that was available, discoverable, and foreseeable at the trial. 10 . Significantly, the Appellant was represented by legal counsel at the trial. I cannot agree with the Appellant’s submission that the witness’ evidence was such that the Appellant could not have foreseen it and countered it at the trial. The estimated height of the stacked containers was clearly an issue that counsel was alive to because she referenced this in her closing submissions.

Counsel heard the witness’ evidence including one basis he used to conclude that the stack of containers exceeded 5 metres in height, and specifically took issue with the source of the witness’ evidence as to the height in her submissions. 11 . The Appellant did not seek to adjourn to lead the evidence now sought to be filed, and the Appellant called no evidence at all. This was an informed decision by trial counsel, the Appellant is held to its counsel’s tactical decision, and should not now be permitted to lead evidence available at the trial in the guise of fresh evidence. 12 .

The Appellant’s motion to admit fresh evidence is dismissed. _________________________________ Justice B. E. Pugsley