Oshawa (City) v., 2015 ONCJ 819

CITATION: Oshawa (City) v. 1064145 Ontario Ltd. , 2015 ONCJ 819 ONTARIO COURT OF JUSTICE BETWEEN: THE CORPORATION OF THE CITY OF OSHAWA Respondent — AND — 1064145 ONTARIO LTD. Appellant Before Mr. Justice M. Felix Heard on February 25, 2015 Reasons for Judgment released on March 16, 2015 R. Vanderlinde ........................................................................................................... Prosecutor B. Evans ........................................................................................... Counsel for the Appellant Felix J.: Introduction [ 1 ] On February 20, 2014 the appellant was convicted after trial concerning several infractions pursuant to

section 9 of the Ontario Fire Code -- Fire Protection and Prevention Act, S.O. 1997,

Chapter 4 [ Ontario Fire Code ]. [ 2 ] The appellant was the owner of certain commercial premises. The premises had previously been used as an auto garage and car dealership. The appellant permitted a school to operate on the premises during the relevant time-frame. An inspector attended the premises and found numerous children and other evidence that the premises were being used as a private school. [ 3 ] The appellant asserts that the school was proven to be a private school at trial and as such there was an available exemption pursuant to

section 9.2.1.2 of the Ontario Fire Code for private schools [1] regulated by or under the Education Act, R.S.O. 1990,

Chapter E-2 [ Education Act ]. As the private school was subject to the Education Act, the provisions of the Ontario Fire Code did not apply. [ 4 ] The appellant submits that the learned Justice of the Peace erred in two related ways: (1)In finding that the appellant bore the onus of proving that the exemption applied per the Ontario Provincial Offences Act, R.S.O. 1990,

Chapter P.33 [ Provincial Offences Act ] s. 47(3) ; and, (2)In failing to find as a material fact that the appellant enjoyed the benefit of the statutory exemption in

Section 9.2.1.2 of Regulation 213/07 of the Ontario Fire Code based on the facts and concessions at trial. [ 5 ] The appellant asserts that there is only one issue to address on appeal – whether or not the private school was regulated by the Education Act . If the private school was subject to the Education Act, it was exempt from the provisions of the Ontario Fire Code . The appellant argues that because the private school functioned as an “assembly occupancy” (this was not controversial at trial) the operation of the exception should have governed liability.

There was no need to submit a “notice of intention to operate a private school” as per section 16(1) of the Education Act . Factually, the private school was governed by the Education Act . Finally, the appellant argued that the school could be inspected pursuant to the Education Act sections 16(6) to 16(8) .

[6] For the reasons that follow, the appeal is dismissed. Standard of Review [7] The following framework found in

section 120 of the Provincial Offences Act applies to this appeal. Orders on appeal against conviction, etc. 120.

(1) On the hearing of an appeal against a conviction or against a finding as to the ability, because of mental disorder, to conduct adefence, the court by order, (

a) may allow the appeal where it is of the opinion that, (

i) the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground, there was a miscarriage of justice; or (

b) may dismiss the appeal where, (

i) the court is of the opinion that the appellant, although the appellant was not properly convicted on a count or part of an information,was properly convicted on another count or part of the information, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in clause (a), or (iii) although the court is of the opinion that on any ground mentioned in subclause (a) (ii) the appeal might be decided in favour of theappellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred. [8] I find that the argument put forward by the appellant engages questions of law, and questions of mixed fact and law such thatthe standard of review is correctness (R v Shepherd, 2009 SCC 35 , [2009] SCJ No 35 (QL)). [9] The Ontario Fire Code represents the provincial legislature’s comprehensive attempt to administer the protection of the publicas it pertains to fire hazards.

A plain reading of the legislation reveals that the intent of the legislature was to provide for fireprotectionservices, fire marshals, fire fighters, and the inspection of buildings. The law is replete with inspection and oversight powers related tothe protection of the public. [10]

Section 9.2.1.2 of Regulation 213/07 of the Ontario Fire Code provides that the

section does not apply to “assemblyoccupancies” in buildings that are regulated by or under the Education Act or the Ministry of Colleges and Universities Act. This wasthe

section relied upon by the appellant as an exemption at trial. [11] A plain reading of the Education Act reveals that the legislature was concerned with ensuring a strong public educationsystem with a particular focus on the development of students. [12] There was no evidence at trial that the private school had filed a notice of intention to operate pursuant to section 16(1) of theEducation Act.

Section 16 of the Education Act imposes numerous requirements. First of all, it is an offence to operate a private schoolunless a notice of intention to operate pursuant to section 16(1) has been submitted (Education Act, s. 16(4)). It is an offence to make afalse statement in the submission of a notice of intention (Education Act, s. 16(9)). Private schools are required to submit notices ofintention annually on or before the first day of September (Education Act, s. 16(2)). The notice of intention shall be in a proscribed form(Education Act, s. 16(3)).

The Minister of Education may compel the production of statistical information and other information fromthose managing private schools; it is an offence to fail to comply with such a request (Education Act, s. 16(5)). The Minister maydesignate supervisory officers to inspect a private school and any records or documents. It is an offence to obstruct such officers (Education Act, s. 16(6)). The Minister may inspect a private school upon request to determine compliance with the standard ofinstruction (Education Act, s. 16(7)).

The Minister may examine teachers with a view to certification upon request (Education Act, s.16(7)). [13] The provincial legislature took great care to set out numerous powers and responsibilies associated with running a privateschool in the province of Ontario. Having regard to this context I have considered the appellant’s arguments. Having regard to basicprinciples of statutory

interpretation it is clear that the Education Act is not concerned with fire safety -- the Fire Code is so concerned.The inspection powers relied upon by the appellant in sections 16(6) to 16(8) of the Education Act relate to the purposes of theEducation Act, not the Fire Code. [14] The learned Justice of the Peace did not err in relying on section 47(3) of the Provincial Offences Act. First of all, if theprivate school in question had indeed submitted a notice of intention it would have been a relatively straightforward exercise to establishthis fact.

Second, having regard to the Education Act there is no support for the appellant’s argument that a factual finding at trial maybe substituted for the submission of a notice of intention. The submission of a notice of intention signals a private school’s wish to beaccepted by the Minister of Education with the accompanying responsibilities. Section 16(1) of the Education requires a notice ofintention to operate a private school be filed. The purpose of this

section is to notify officials charged with enforcing the Education Actthat there is new private school. This is rationally connected to the exercise of statutory jurisdiction over a new private school to ensure

that the school is operating in accordance with provincial standards. I find that this notice must be submitted in order to bring a private school under the jurisdiction of the Education Act . Failure to file the notice risks prosecution for operating a private school essentially without the supervisory authority of the Minister of Education. [ 15 ] The learned Justice of the Peace held that by operation of the Provincial Offences Act the appellant had the burden to establish that the circumstances at trial were captured by the Education Act .

There is a specific statutory basis for this approach and it was a proper finding in law. [ 16 ] If I am wrong to come to this conclusion, I should consider the applicability of the exemption relied upon by the appellant both at trial and on appeal. Leaving aside the issue as to whether the exemption even applies generally to this fact scenario, [2] no common sense reading of the Ontario Fire Code and the Education Act could support the

interpretation suggested by the appellant. The private school in this case was not governed by the Education Act. A notice of intention was not submitted. It would frustrate the object of the legislation to suggest that a factual finding at trial could supplant the express provisions of the legislation. This ex post facto analysis is not supported by the legislation. [ 17 ] For these reasons the appeal is dismissed. Released: March 16, 2015 Signed: “Justice Felix”