Ajax (Town) v. Wong, 2011 ONCJ 352

COURT FILE NO.: 2811 999 09 1563 DATE: June 28th, 2011 Citation: Ajax (Town) v. Wong , 2011 ONCJ 352 ONTARIO COURT OF JUSTICE (Central East Region) B E T W E E N: ) ) TOWN OF AJAX ) ) Ms.

Bishop, Prosecutor ) ) ) ) ) ) LORETTA MAN HING WONG ) ) ) Roy Tofilovski, counsel for Appellant ) ) ) ) HEARD: June 1st, 2011 RELEASED : June 30, 2011 JUDGMENT ON APPEAL BELLEFONTAINE, J: This is an appeal brought on behalf of Loretta Man Hing Wong who was convicted of the offence of failing to comply with a property standards order to remedy breaches of the of the property standards by-law affecting her property, contrary to the Building Code Act , 1992, S.C.O. 1992, c. 23, s. 36 (1) (b). All grounds of appeal have been abandoned save one.

The sole ground relied upon is that His Worship erred in admitting hearsay evidence which was relied upon to establish that a confirmed property standards order was in place to support the charge. The specific hearsay evidence that was argued as having been inadmissible hearsay are: 1 . The affidavit of the secretary of the Property Standards Committee which was filed without any notice or statutory provision to permit its admission. The affidavit of Ms. Little stated that no appeal had been filed with the local Property Standards Committee from the order of the property standards enforcement officer.

2 . The evidence of the property standards enforcement officer, Mr. Clayton Weller that no appeal had been filed with the Property Standards Committee is also submitted to be hearsay, as he is not indicated to be a member of the Property Standards Committee or a member of the staff of that committee who would have had direct knowledge of the fact that an appeal had not been filed. For the appellant to be successful on the argument that inadmissible hearsay evidence was relied upon, it would be necessary for me to find as well that:

a) The fact that the order had been confirmed, whether by virtue of no appeal being filed or otherwise, is an essential element of the offence; and

b) That Section 47(3) of the Provincial Offences Act did not apply to relieve the prosecution of the onus of proving the fact that no appeal had been filed. The Crown during argument accepted that no statutory provision would allow the filing of the affidavits of the secretary of the Property Standard Committee, but submits that Officer Weller’s evidence was direct evidence as he would know that an appeal had been filed by virtue of his capacity as the officer in charge of the case and working in the same office as the Property Standards Committee personnel.

While those factual submissions may be correct, that information was not in evidence for the defendant to cross-examine on and determine whether the officer’s information was direct knowledge by him of the fact that no appeal was filed. It may well have been hearsay being provided to him by some other person. If the information was provided by some other person it is clearly hearsay evidence.

Further that individual’s position to determine the facts, especially to establish a negative proposition, as here, is not before the presiding justice which presents one of the classic hearsay dangers that the reliability of the hearsay evidence cannot be evaluated by the trier of fact. Whether the evidence was hearsay or not, was not addressed at the time of its admission or argument or the Justices of the Peace judgment and I find on the basis of the limited evidence before the Court, that it prima facie was hearsay evidence and could not be relied upon to support a conviction.

Accordingly it is necessary to address whether the fact the order has been statutorily confirmed by the absence of an appeal, or otherwise, is an essential element of the offence. The charging section, 36 (1) b does not explicitly refer to “a confirmed order”. It provides: s. 36(1): A person is guilty of an offence if the person, …(

b) fails to comply with an order, direction or other requirement made under this act… By its wording, an order is not specified or required to be a “confirmed order” or a “final order” or a “binding order”. I note as well that both

section 15.3(3.1) and 15.3 (6) establishing the powers of the Property Standards Committee and ultimately a judge, on appeal provides for the order to be confirmed “or modified”. If modified the order would not be confirmed given that the only reasonable

interpretation of the

section is that the “or” in “or modified “ is disjunctive. Accordingly I am not able to find that an order must be “confirmed” as argued.

Section 15.3(7) is however of significance. It provides: 15.3(7) An order that is deemed to be confirmed under subsection (2) or that is confirmed or modified by the Committee under subsection (3) or a judge under subsection (6), as the case may be, shall be final and binding upon the owner and occupant who shall carry out the repair or demolition within the time and in the manner specified in the order.

Section 15.3(7) equates confirming or modifying an order for the purposes of an order being final and binding and accordingly undermines the significance of the argument that statutory

interpretation of the charging

section does not require a confirmed order. I note as well that there is no provision for a stay of an order pending the hearing of an appeal under

Section 15 for property standards violations as there is in Section 25 (7) for building code appeals. Additionally other provisions of the property standards part of the Act such as 15.7(1) provide for special emergency orders that can under restricted circumstances require immediate remedial repairs to be carried out. The absence of such stay provisions and provision for emergency immediate remedial repairs suggests that the ordered work need not be completed until the appeals are finalized.

By providing an appeal route for the decision of the Property Standards officer, it is clear the legislator intended there to be a mechanism for an affected landowner to have a review of the decision to ensure the reasonableness of it. I interpret the provision of a 14 day grace period within which to appeal to the Property Standards Committee to establish an amnesty period during which a charge could not be laid and effectively creating a minimum period within in which remedial work could not be required to be completed.

In my view it would undermine the amnesty period provided for in the Act and one which would continue pending the hearing of anyappeal to the Property Standards Committee to not require that the order be final and binding under

Section 15.3(7) prior to a finding ofguilt being registered under Section 36 (1) b. There is support for this

interpretation within

Section 15.3(7) which after setting out thecircumstances in which an order is final and binding, mandates that the owner “shall carry out the repair”. This is in contrast to Section15.2(2) which allows for the terms of the order to be set by the Property Standards officer but which does not include an express or cleardirection to the owner to carry out the work. This implies by omission that the work need not be carried out until the order is final andbinding. Further, the lack of jurisdiction to provide a stay of the order pending the hearing of the appeal to the Property StandardsCommittee and subsequently a Court creates a statutory framework that supports the

interpretation that no work need be carried out untilthe order is made final and binding by any of the routes provided for in

Section 15.3(7). I find that the existence of a final and bindingorder within the meaning of

Section 15.3(7) is an essential element of a charge under Section 36(1)(b). Although s.15.3(7) provides fora number of options to create a final and binding order by operation of the section, in the context of our case it would require that noappeal had been filed. I do however view that section 47(3) applies in the circumstances of this case to remove the burden on the prosecution to establish thatno appeal had been filed.

It provides that the burden of proving that an authorization, exemption, exception or qualification prescribedby law operates in favour of the defendant is on the defendant and the prosecution is not required, except by way of rebuttal to prove thatthe authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in theinformation. The

section was considered in R. v. Lee’s Poultry Ltd. (ON CA), 17 C.C.C. (3d) 539. In that decisionboth the constitutionality and the application of the

section was dealt with. In considering the legitimacy of reverse onus provisions, theCourt noted that some of the criteria with respect to justifiability are: the difficulty of the prosecution making proof of the presumed fact,and the relative ease with which the accused may prove or disprove the presumed fact. While not specifically addressed in Lee’sPoultry, I consider those factors to be equally applicable to assisting in determining whether Section 47(3) should be applicable to thecharge before the Court. Firstly I would note that the structure of

Section 15.3 creates an automatic confirming of the order by 15.3(2)and upon such confirmation the order shall be final and binding upon the owner who shall carry out the repairs. All of this is automaticunless the order is appealed under

Section 15.3(1) by sending a notice of appeal by registered mail to the secretary of the committeewithin 14 days after being served with the order. The structure of the

section creates a final and binding order simply by the effluxtion oftime. Relieving from the mandatory nature of the order if the homeowner takes certain action in my view is an exception orqualification prescribed by law to the general regime. The wording of

Section 15.3(1) and (2) supports an

interpretation that Section47(3) applies to them. As well I would note that an appeal is commenced simply by sending a notice of appeal by registered mail. Therewill accordingly be some period of time pending receipt of that mail by the secretary of the committee in which the fact that an appeal isbeing taken is solely in the knowledge of the appellant. The prosecution would be unable to establish for that period of time that theotherwise mandatory order was suspended by virtue of the order not being confirmed due to the fact of the commencement of theappeal.

This scenario creates the classic situation that justifies the section, being a situation where the exception is solely within theknowledge of the defendant. As well there would be no trial unfairness to a defendant at trial to require the simple act of producing theirdocumentation for the registered letter, or testify to that effect, to show that an appeal had commenced preventing the confirmation of theorder under

Section 15.3(2). While I do not view it to be a difficult for the Crown to establish that no appeal has been filed, it wouldgenerically be a more difficult task to prove this negative than proving that one has been filed. I consider both the wording and structureof the

section and the factors set out in Regina v. Lee’s Poultry Ltd. to support the applicability of Section 47(3) to the issue of whetheror not the order was appealed. Accordingly, I consider the filing of an appeal to be an exception, exemption or qualification prescribed by law which operates in favour of thedefendant, and that there was no burden or the Crown to prove that an appeal had not been filed.

Given my conclusion that there was no burden on the prosecution to establish that no appeal had been taken for the order to have beenconfirmed, the error by the Justice of the Peace did not in my view create any injustice. I note from Ms. Wong’s submissions at trial(Vol. 1, p.28/5) that she had in fact not appealed the order so there would be no point to ordering a new trial in this matter to give her theopportunity as an unrepresented accused to address Section 47(3) on a new trial. Accordingly, the appeal with respect to conviction willbe dismissed. There is also an appeal with respect to sentence.

While some of the breaches relied upon by the prosecution would not have merited the$7,500 fine imposed by the Justice of the Peace, some of the breaches did. In particular, the breach with respect to placing a largequantity of landscaping stones in the drainage swale to the point that drainage between the properties was blocked is a serious one whichcould take a significant amount of work or expense to remedy and could cause significant water damage by way of infiltration into Ms.Wong’s or neighbouring houses if not remedied.

As well, the large quantity of construction materials which had been left in the yardarea visible from the roadside for an extended period of time would be an eye sore for other neighbours that they ought not to have beensubjected to. The fine imposed was not outside of the range of fines that I see imposed for offences of this nature and given theseriousness of at least two of the breaches of the order relied upon, and Ms. Wong’s long term resistance to remedying the defects, in myview it is not unfit. Accordingly the appeal with respect to sentence is also denied.

The scheduled date for judgment of July 28, 2011 is hereby vacated.

P.L. Bellefontaine, Justice