R. v. Shaikh et al., 2011 ONCJ 774

Information Number: 101595 (Orangeville POA) Citation: R. v. Shaikh et al. , 2011 ONCJ 774 Ontario Court of Justice Provincial Offences Appeal Court BETWEEN: Her Majesty the Queen in Right of the Province of Ontario as represented by The Registrar, The Motor Vehicle Dealers Act, 2002 Appellant and Mohammed Shaikh, Kien Trung, and 1571390 Ontario Limited operating as Mazda for Orangeville Respondents Justice Bruce E. Pugsley Heard: December 9, 2011 Released: December 12, 2011 Appearances: Paul D. Stunt and Angela A. La Viola for the Appellant The Respondent Mr.

Shaikh and counsel Susan Pennypacker The Respondent Mr. Trung and counsel Neil Gregson No one attending on behalf of the corporate Respondent ENDORSEMENT 1 . The background of this matter is somewhat tortuous. 2 . The Appellant Registrar goes by the acronym “OMVIC” standing for the Ontario Motor Vehicle Industry Council, an independent self governing regulatory body established under the Motor Vehicle Dealers Act, 2002 . OMVIC’s legal mandate includes oversight of the business practices of motor vehicle dealers in Ontario. 3 .

At the relevant time, the corporate Respondent operated a local Mazda new car dealership in Orangeville, Ontario, and employed the individual Respondents as car sales associates. 4 . In December of 2009 the Respondents are alleged to have committed an offence under the Consumer Protection Act, 2002 SO 2002, c. 30 . They are said to have engaged in unfair business practice in the sale of a motor vehicle to a customer. OMVIC’s mandate includes prosecuting such alleged offences. 5 . An Information under

section 23 of the Provincial Offences Act RSO 1990, c. P-33 (“ POA ”), was sworn on April 22 nd , 2010, and placed before the court at Orangeville. Several court appearances then followed in the Provincial Offences Court. On August 11, 2010, the matter was adjourned to September 15 th , 2010, for a pre-trial conference with a Justice of the Peace, and was also adjourned to September 29 th , 2010, to set a date for a trial expected to last two days. 6 .

On September 29 th , 2010, the matter came before His Worship Justice of the Peace Fayolle at Orangeville as originally scheduled for the purpose of setting the trial date. The only parties in attendance before His Worship were the two individual Respondents and Ms. Pennypacker, counsel for the respondent Mr. Shaikh. No one attended on behalf of OMVIC when the matter was called, and no one was present for the corporate Respondent. 7 . The Learned Justice of the Peace had his clerk page the prosecutor and the corporate Respondent but there was no response.

He inquired of other prosecutors who were there on other matters if they were able to step into the place of the OMVIC counsel but not surprisingly none of them were in a position to do so. 8 . At that time no one appears to have suggested that the matter be held down a few minutes to allow someone to call the Appellant’s office to see where counsel was, although after the dismissal of the charge Ms. Pennypacker advised the court that she had tried to

contact counsel on his cell phone and that her office had also tried and no one knew why the prosecutor had not attended. 9 . On behalf of Mr. Shaikh, Ms. Pennypacker immediately asked His Worship to dismiss the charge pursuant to

section 53 of the POA , based upon the non-appearance of the prosecutor, and for a written order of dismissal under that section. 10 . The Learned Justice of the Peace immediately dismissed the charge as against all three respondents. 11 . The Learned Justice of the Peace, after a recess to consider the request for a written order of dismissal, decided that the best course of action would be to adjourn that issue to a future date when the prosecution would be able to come and make submissions. Ms.

Pennypacker observed that since the court had dismissed the charge, His Worship might be functus officio and could not continue the case on another date. The court recessed until the afternoon to consider this issue. 12 . When the court reconvened in the afternoon of September 29 th , 2010, Ms. Pennypacker advised His Worship Justice of the Peace Fayolle that she had managed to speak to counsel for OMVIC, and that counsel had not appeared because he had miss-diarized the date. She therefore withdrew her request for a formal order of dismissal and the matter ended for that day. 13 .

On October 4 th , 2010, a fresh Information was sworn under

section 23 of the POA alleging the same offence as the Information dismissed by His Worship on September 29 th , 2010 against the same defendants. 14 . The Respondents then moved before the Superior Court of Justice for a prerogative writ quashing the summons issued pursuant to the October 4 th Information. The Appellant opposed that application and brought a cross-application in the same court to have Justice of the Peace Fayolle’s dismissal order quashed. 15 . The application and cross-application were heard together by The Honourable Justice L. Ricchetti at the Superior Court at Orangeville.

His Honour’s decision was released on January 20 th , 2011, and is reported at: 2011 ONSC 452 , 2011 CarswellOnt 259 , and

(2011) OJ No. 258 . 16 . Justice Ricchetti’s decision carefully reviews the statutory framework and the law applicable to this situation. No counsel took issue on this appeal with His Honour’s analysis although the individual Respondents would urge me to a different conclusion as to the jurisdiction of the Learned Justice of the Peace to make the order he did. 17 . Justice Ricchetti’s decision quashed the October 4 th , 2010, information and dismissed the cross-application by OMVIC for a writ of mandamus quashing the dismissal order.

His Honour found that the proper route if the Appellant sought review of Justice of the Peace Fayolle’s decision was an appeal, not an application for a prerogative remedy. 18 . Subsequent to the release of Justice Ricchetti’s decision the Appellant sought first leave to appeal that decision to the Ontario Court of Appeal, and then an extension of the time to appeal His Honour’s decision to that court. The motion was dismissed with costs. 19 . The Appellant also determined that it wished to appeal the dismissal order made by Justice of the Peace Fayolle.

In the interim the time within which an appeal could be commenced under the POA without an order extending the time to appeal had passed. 20 . On August 29 th , 2011, The Honourable Justice B. Stead of the Ontario Court of Justice heard argument from counsel on the Appellant’s motion to extend the time to appeal. Justice Stead delivered extensive reasons for granting the request on September 20 th , 2011. 21 . With input from all counsel December 9 th , 2011, was scheduled for a three hour hearing of the Appellant’s appeal. 22 .

Counsel for OMVIC, responding to my observation of the non-attendance of the corporate Respondent on December 9 th , 2011, advised me that that Respondent has commenced an application for a judicial review of Justice Stead’s order extending the time for filing the appeal, and that matter is scheduled for a return date in March of 2012. That may explain why this party was not in attendance at the hearing of this appeal. 23 . Although three hours was scheduled for the hearing of this appeal, the actual hearing took barely twenty minutes.

The issue is narrow and has already been the subject of careful analysis by both Justice Ricchetti and Justice Stead. 24 . The Appellant submits that the Learned Justice of the Peace on September 29 th , 2010, simply had no jurisdiction to summarily dismiss the charge under

section 53 of the POA . By doing so, His Worship committed a reversible error. A new trial is sought. 25 . The individual Respondents submit that His Worship Justice of the Peace Fayolle did indeed have jurisdiction to act as he did on September 29 th , 2010, and that

section 53 of the Act is the mirror of

section 54 which allows the Provincial Offences Court to proceed in the absence of a defendant. 26 . The corporate Respondent did not attend and filed no responding material on the appeal, although material was filed by this party before Justice Stead on the extension motion. 27 . The nature of the application and cross-application that came before Justice Ricchetti is such that His Honour’s analysis of the jurisdiction of Justice of the Peace Fayolle is not legally binding upon me. Indeed, any appeal from this court on a POA matter goes directly to a justice of the Court of Appeal on leave, such that, unlike a

Summary Conviction Appeal, the Superior Court of Justice does not have an appellate role in a POA case. Similarly, Justice Stead’s careful analysis of this issue when considering the

strength of the Appellant’s case on appeal as part of the motion before him does not bind me to follow his view. None-the-less, I find both decisions to be extremely persuasive, and, indeed, correct at law. 28 . For the extensive reasons outlined by Justice Ricchetti, which I shamelessly adopt, the

section 53 relief sought by Mr. Shaikh on September 29 th , 2010, and granted by Justice of the Peace Fayolle without substantive reasons, is not available on a set date attendance. The court presided over by His Worship on that date was a court expressly scheduled to set a date for the two day trial anticipated by counsel. It was not intended by any party to be a hearing date on any basis.

The plain wording of section 53 (1) illustrates the intention of the legislature that non-attendance by the prosecution on the date of a hearing (that is, a date when an issue will be judicially considered by the court) may result in the dismissal of the case. Such was obviously not the case on September 29 th , 2010. 29 . To turn the submission of Mr. Shaikh around, could the court have convicted the corporate Defendant in its absence on September 29 th ? No one attended on its behalf that day. Clearly such an order could not have been made under

section 54 of the POA because the date was not set for a hearing, a precondition under that

section as well. 30 . Further, in the exercise of his decision to dismiss the charge on September 29 th , 2010, the Learned Justice of the Peace erred in not (

a) causing inquiries to be made as to the reason for the absence of the prosecution; (

b) considering whether a lesser step such as an adjournment was appropriate; and (

c) failing to give proper reasons for his decision to dismiss the charge in a

summary fashion. 31 . First, no one would have been prejudiced by a recess to inquire as to where the prosecutor was. As it appears from the affidavit filed by the Appellant in its motion to extend the time to file a Notice of Appeal here, he was in fact in his office at the time of the hearing. Later, after His Worship had dismissed the charge, Ms. Pennypacker advised the court that she had tried to contact counsel by phone, and her office had made attempts to do the same.

Further, in the afternoon, counsel further advised His Worship that she had spoken to the prosecutor and that he had simply miss-diarized the court date. 32 . It is doubtful whether the Justice of the Peace herein would have acted as he did had this added information been in his hands at the time he dismissed the charge. 33 . Second, as the matter was before the court merely to set a date for trial, there would have been no prejudice in adjourning the matter to another date for the purpose of either setting a trial date or considering Mr. Shaikh’s application to dismiss the charge.

The matter had been before the court on prior occasions and had been the subject of a pre-trial with a Justice of the Peace two weeks before. There is no suggestion that the prosecution had failed to attend before, or that the prosecution was not treating the charge seriously. Rather the opposite, in fact. 34 . Third, the Learned Justice of the Peace at the time he dismissed the charge, gave essentially no reasons for doing so. He observed that the prosecution had not attended, that the case had had several prior court dates, and that therefore the charge was dismissed.

Later on, in considering whether to issue a formal order of dismissal, His Worship did expand somewhat on his thoughts in granting the relief but these do not amount to reasons sufficient to allow an appellant court to analyze why he decided to dismiss the charge and end the case without a hearing on the merits. 35 . In other words, even if the Learned Justice of the Peace had the jurisdiction to dismiss the charge in the circumstances of this case, which I find he did not, he failed to exercise any power to dismiss under

section 53 properly and fell into reversible error in any event. 36 . There is a significant public interest in the hearing of quasi-criminal cases (particularly such as this matter which involves an issue of consumer protection of great interest to the public at large) on the merits of the case where such is possible. A peremptory dismissal under

section 53 of the POA should, it seems to me, to be the result of last resort. When asked to exercise his or her authority under

section 53 of the POA the presiding Justice of the Peace has a duty to act judicially even in the absence of a party. The court should inevitably consider a delay to review the history of the case to see if there have been problems before, and why the prosecutor has not attended on this occasion. Usually an adjournment to seek the prosecutor’s attendance should be made on the court’s own motion. The consequences of that non-attendance under

section 53 are best considered on a full record and costs are an available remedy. Common sense suggests that there are a multitude of reasons why an individual may not attend in court as scheduled, from illness or worse on the one hand, to a mix-up in his or her schedule, as here, on the other. To have an entire prosecution end perhaps because of a snowstorm, a car accident or other mishap, on a trial date, let alone a set date event, is surely far beyond the intention of this

section of the Act. 37 . In the instant case, having acted quickly to dismiss the charge, His Worship came late to a consideration of many of the above points when he pondered whether to issue the formal order of dismissal. Then he considered an adjournment to have the prosecutor attend and make submissions on the issuance of the order. By that time however the dismissal itself had taken place and the present detour through the courts of Ontario had been mapped. Now, almost two years after the date of the alleged offence, a disposition on the merits has still to take place. 38 .

In my view the process of setting the September 29 th , 2010, court date also had a role in this missed date. Here the lawyer for OMVIC was faced with two court dates to diary in this matter on August 11 th , 2010, and had added responsibilities related to hearings involving a licence appeal tribunal involving the defendants. Significantly no formal court appearance took place on the date of the judicial pre-trial conference which took place on September 15 th , 2010.

Had there been a court appearance then it would not have been necessary to diary both September 15 th and 29 th at the same time on August 11 th , and the parties would have been able to

schedule a return date that properly reflected the result of the pre-trial conference. The court dates would have flowed sequentially. As a result, counsel made an error in his diary. When he did not attend counsel for Mr. Shaikh seized upon this error to seek relief in her client’s interest. While this was an effective tactical move at the time, in my view the proper course of action would have been for counsel to follow-up on her attempts to contact the prosecutor, or seek an adjournment with costs payable, rather than seeking the immediate dismissal of the charge. Clearly there was no jurisdiction to dismiss, and a delay of a couple of weeks, not a year, would likely have

resulted, let alone the added expense of the resulting journey through the higher courts of the province. 39 . As a result, the appeal is allowed and a new trial is ordered. The matter is adjourned to the Provincial Offences Court located in the new courthouse complex at 55 Zina Street, Orangeville, Ontario, at 9:00 am on February 2 nd , 2012, to set a date for trial. ____________________________ Justice Bruce E. Pugsley