R. v. Houssameddine, 2011 ONCJ 473

Citation: R. v.

Houssameddine , 2011 ONCJ 473 ONTARIO COURT OF JUSTICE (TORONTO REGION) BETWEEN: KHALED HOUSSAMEDDINE Applicant - and – HER MAJESTY THE QUEEN Respondent Stephanie Hems, for the Applicant Andrew Smith, for the Respondent Ruling on Application for Extension of Time Heard: 15 September 2011 ; Judgment: 22 September 2011 (17 paras.) Libman J.: - [ 1 ] The issue I am called upon to decide in this ruling is whether the applicant is entitled to proceed with his appeal in circumstances where he was previously granted an extension of time to file an appeal, but due to an apparent misunderstanding of the requirement to re- file the notice of appeal document once the extension of time had been granted, the applicant failed to file another copy of the notice of appeal during the 30 day period for which the extension of time was given. [ 2 ] The Crown/respondent argues that the appeal should be quashed since the applicant, in order to rectify his error, must bring a second extension of time application to file a notice of appeal, which is expressly prohibited by s.85(2) of the Provincial Offences Act . [1] The defendant/applicant replies that he is not requesting a second extension of time, but rather an order restoring the status of the appeal, so that he can file the documents necessary for the proper conduct of the appeal, which the appeals office will no longer accept for service due to his omission to file the notice of appeal, for the second time, after being given an extension of time to do so. [ 3 ] It is therefore essential that the nature of this application is correctly characterized, for the purposes of resolving the underlying dispute, as between the two parties. [ 4 ] I am of the respectful opinion that s.85(2) is not fatal to the applicant in the circumstances of this case, and that the applicant’s position should prevail.

Let me briefly explain why I have reached this conclusion, after first setting out the factual matters that gave rise to the unique legal issue under consideration. [ 5 ] Having been convicted at his ex parte trial for driving without insurance, contrary to s.2(1) (

b) of the Compulsory Automobile Insurance Act , [2] the defendant failed to file his appeal within the 30 day period allowed under the appeal rules. This resulted in his having to bring an application for an extension of time to appeal. On 2 May 2011, the applicant’s motion for an extension of time was granted by Justice Shamai, over the objections of the Crown.

At that time the defendant was given 30 days to file the appeal against his conviction. [ 6 ] In support of the extension of time application before Shamai J., the applicant included, in his materials, an affidavit explaining the reasons for the delay in bringing the appeal, as well as the notice of appeal, setting out the grounds of appeal against conviction.

He also entered into a recognizance in lieu of paying his fine. [ 7 ] The next day, 3 May 2011, the transcript of the trial was ordered by the applicant, and a deposit paid of $326.80. [ 8 ] On 22 July 2011 the applicant contacted the appeals office to check on the status of the appeal, as he had not yet been notified that

the transcripts were ready for pick-up. It was at this time he was informed that as the notice of appeal had not been re-filed within the 30day extension of time period , the matter was considered “no longer under appeal” by the appeals office.

According to the applicant, thisis not the practice in most other jurisdictions in the province, which do not require the notice of appeal to be submitted a second time, if itwas filed along with the original application to extend time. [9] Upon learning this, the applicant attempted to rectify the situation by re-filing all the documents on 27 July 2011, including a noticeof motion to restore the appeal. However, the material was not accepted by the appeals office.

As a result, this notice of motion wasbrought, and listed for argument on 15 September 2011. [10] Clearly, had the extension of time application brought before Justice Shamai been dismissed, after being argued on the merits, asecond application for extension of time to appeal would be statute barred by the operation of s.85(2). This is the express intention of thisprovision. See York (Regional Municipality) v. Sahraeian, 2011 ONCJ 253 at para. 38. [11] This, however, is not what happened in this case.

After hearing a contested extension of time motion, Justice Shamai was persuadedthat the interests of justice were such that she should exercise her discretion, and allow the defendant an extension of time to bring anappeal against his conviction. She gave him 30 days to do so. [12] In fact, the applicant did take steps during this 30 day time period to perfect the appeal, such as ordering and paying for the trialtranscripts.

But due to believing that the appeal notice document had already been filed, which it was, along with the extension of timeapplication, he did not file a second copy of the notice of appeal with the appeals office. [13] I see no reason why, in these factual circumstances, it is not open to me to provide the applicant with relief, in the form of anextension of time of Justice Shamai’s order, so that he may comply with the ruling made on 2 May 2011 granting the extension of time,in the first instance, to file the appeal.

The authority to do so is set out in s.85(1), which, subject to subsection (2), permits the court toextend any time fixed under the Act, “other than commencing or recommending a proceeding, whether or not the time has expired.” It isalso authorized by s.7(1) of the regulations governing

Part III appeals[3] which allows a judge to “extend or abridge the time for bringingan appeal and for doing any act other act in connection with an appeal for which a time is prescribed before or after the expiration of thetime prescribed.” The making of an order to extend a time period on appeal under these two provisions, s.85(1) of the Act and s.7(1) ofthe appeal rules, is quite distinct from bringing anew a second or subsequent extension of time application to file an appeal pursuant tos.85(2). [14] Stated shortly, I am not being asked to allow the defendant to bring another extension of time application to appeal against hisconviction.

Instead, in order to rectify the applicant’s misunderstanding as to the steps he was to take pursuant to Justice Shamai’s ordergranting an extension of time to bring the appeal, I am providing the applicant with an extension of time in connection with an order thathas already been made.

This is the correct characterization of the nature of the application in the instant case. [15] Indeed, the governing principle expressed in the regulations governing appeals is that the rules shall be construed liberally to obtainas expeditious a conclusion of every proceeding as is consistent with a just determination of the proceeding: see Ontario v. Pomehichuk,2009 ONCJ 218.

To this end, I note that it is not suggested that there is anything further the applicant could have done since the grantingof the extension order in May, 2011, to date, apart from re-filing its notice of appeal document, setting out the same grounds of appeal asbeforehand. His conduct has in no way delayed the appeal process.

To the contrary, he ordered the trial transcripts the day after theextension of time to appeal was granted; nothing else can be done in the meantime. [16] Conversely, the position urged by the Crown dictates that a party, including itself, who is granted permission to appeal out of timeand makes an administrative error, such as not filing a document, or a transcript on time, or is the subject of an administrative error madeby the appeals office in relation to such an appeal, such as losing track of a file or mis-tamping a document, would have no remedy sinceits only relief consists of a second extension of time application which would be precluded by s.85(2).

The same result would follow ifthe party suffered a sudden illness or was involved in a serious accident that prevented him/her from complying with the extension oftime order after it was granted.

I cannot accept that this is the intention of the Provincial Offences Act, which is the lens through whichmost people in this province will experience the justice system, and for which, as it has been said, “is not intended as a trap for theunskilled or unwary, but rather … as an inexpensive and efficient way of dealing with, for the most part, minor offences”: R. v.Jamieson (1982), (ON CA), 64 C.C.C. (2d) 550 at 552 (Ont.C.A.); R. v.

Winlow, 2009 ONCA 643 at para. 71. [17] I therefore conclude that I have the authority to make the order requested by the applicant, for the express purpose of giving effectto Justice Shamai’s order of 2 May 2011, which provided 30 days to the applicant to file the notice of appeal. In the result, I grant theapplicant a further period of 15 days, from today’s date, to file his notice of appeal with the appeals office, and thereby fully comply withthe terms of the order of Justice Shamai. [1] R.S.O. 1990, c.P.33. [2] R.S.O. 1990, c.C. 25. [3] O.Reg. 723/94.