Winnipeg (City) v Smith, 2019 MBCA 111

Citation: Winnipeg (City) v Smith, 2019 MBCA 111 Date: 20191029 Docket: AR19-30-09343 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) G. Smith the city of winnipeg ) on his own behalf ) (Respondent) Respondent ) M. K. Muller ) for the Respondent - and - ) ) Chambers motion heard: godwin smith ) October 17, 2019 ) (Accused) (Appellant) Applicant ) Decision pronounced: ) October 29, 2019 marc m. monnin JA [ 1 ] The appellant seeks an extension of time to file an application for leave to appeal a decision of a

summary conviction appeal judge (the SCA judge) denying his appeal from five convictions entered before an administrative judicial justice of the peace (the JJP) following a trial on August 17, 2018. All five convictions were with respect to a property at 562 Balmoral Street in Winnipeg, Manitoba (the property), which is owned by the appellant. [ 2 ] Some background is necessary to understand why the matter is now before me. [ 3 ] The respondent (the City) and the appellant have been at loggerheads with respect to the property for some time.

As early as November 2011, the appellant filed a statement of claim in the Court of Queen’s Bench relating to the City’s conduct in placing orders on the property and conducting inspections. In a parallel proceeding in the Queen’s Bench in 2012, the appellant brought an application to prevent what he perceived as an attempt by the City to seize the property as a result of the enforcement proceedings it was taking.

The City moved to strike the notice of application on the grounds that it would create a multiplicity of proceedings and that the proper course was for the appellant to amend his original statement of claim. [ 4 ] In the course of submissions to the Master, counsel for the City indicated that, “while this suit is pending . . . the City is not going to proceed with any further steps”.

In his reasons for judgment striking the notice of application but allowing the appellant time to amend his statement of claim, the Master restated the City’s undertaking that it would “not proceed to seize [the property] until such time that the litigation surrounding the property is determined.” That undertaking was part of the order signed by the Master. (I note parenthetically that, while the proceeding had taken place before the Master in March 2012, the order was not taken out until February 9, 2016 without any explanation provided to me.) To my understanding, the Master’s order was never appealed. [ 5 ] In early 2016, a senior fire prevention officer and by-law enforcement officer with the City requested from the appellant an opportunity to inspect the property.

The appellant refused and the City obtained a warrant allowing it to conduct an inspection of the property which occurred on March 21, 2016. During that inspection, the by-law enforcement officer noted the presence of material and combustibles and the general condition of the property. He noted conditions which were contrary to by-law requirements, notified the appellant via registered mail and provided him with an invoice for the cost of the inspection and other work done by the City.

He also issued and personally served five common offence notices to the appellant on August 5, 2016. [ 6 ] The proceedings took their course over approximately the next two years. There were eight appearances in the Provincial Court, the one before last being on May 4, 2018, which was originally the date set for trial. However, when the appellant appeared, the then-presiding JJP indicated a conflict and requested that the matter be set over before another JJP.

That was done and the matter was rescheduled for trial for August 17, 2018. [ 7 ] At the outset of the hearing on that date, the appellant, who was self-represented, requested an adjournment, stating that the by-law prosecutions were all part and parcel of his ongoing civil matters before the Court of Queen’s Bench. The JJP denied the request, finding that the proceedings before the Court of Queen’s Bench did not prevent enforcement proceedings such as the ones that were before her.

The appellant sought time to obtain documents from his home relating to those earlier proceedings (that would have been the order of Master Berthaudin with respect to the undertaking given by the City). That was denied by the JJP.

[ 8 ] After hearing evidence from the City and, in particular, the by-law enforcement officer who had performed the inspections at the property, as well as hearing from the appellant, the JJP convicted the appellant and imposed fines totalling $5,440, to be payable by him within 32 weeks. [ 9 ] The appellant appealed from that decision, as he was entitled to, to the Court of Queen’s Bench where it was heard by the SCA judge on August 19, 2019. At that time, the appellant was represented by counsel. He argued before the SCA judge that the failure of the JJP to grant an adjournment was a breach of procedural fairness and that the decision should be set aside and a new trial ordered. The

summary conviction appeal was dismissed on the basis that, in the SCA judge’s view, the JJP made no error of law or jurisdiction which would allow him to review the decision. [ 10 ] The appellant now seeks leave to appeal the SCA judge’s decision to this Court. Test for Leave to Appeal from a

Summary Conviction Appeal Court (Section 839 of the Criminal Code ) [ 11 ] Since the City does not oppose the appellant’s request to extend the time to file his application for leave to appeal, I will grant it without further comments. [ 12 ] As to the application for leave to appeal the

summary conviction appeal court’s decision, it is governed by the criteria set out in

section 839 of the Criminal Code and by the jurisprudence of this Court. [ 13 ] In

summary: (

a) the appeal must involve a question of law alone; (

b) even if a question of law is present, leave should only be granted if the matter raises an arguable case of substance; and (

c) there must be something exceptional about the arguable case warranting a second appeal hearing (see R v M (RW) , 2011 MBCA 74 at paras 23 , 26, 32, 34). [ 14 ] In

summary, the case law is such that leave to appeal pursuant to

section 839 should be granted sparingly, and some cases have suggested only if the issue raises a question of law of general application beyond that particular case. [ 15 ] It is clear that the onus is upon the appellant to demonstrate a clear error of law (see R v Hartt , 2009 ONCA 500 at para 4 ). As well, the appeal to this Court is from the decision of the SCA judge and not from the trial judge, in this case, from the JJP. The Issue on This Application [ 16 ] The sole issue before the SCA judge was whether or not the JJP had exercised her discretion to deny the request for an adjournment properly.

The SCA judge noted in his reasons that the appellant’s position before the JJP was that any matter related to the property would not be dealt with until the civil proceedings had been completed. He noted that the actual order containing the undertaking was not so broad, but only went to the issue of proceedings which would lead to the seizure of the property. He reviewed the conclusion of the JJP that the civil matters had nothing to do with the prosecution under the by-laws and her decision to proceed with the trial.

The SCA judge found that the JJP properly exercised her discretion not to grant the adjournment on the basis of the fact that the undertaking did not preclude the enforcement proceedings from taking place and that they had been pending for some time in the Provincial Court. He noted that the trial date had been set for some time. He further noted that the JJP properly turned her mind to the issue of whether or not an adjournment should be granted and that there was no breach of procedural fairness.

He therefore found no error of law in the decision of the JJP. [ 17 ] It is that decision which is under appeal to this Court, namely, the decision of the SCA judge determining that there was no error of law committed by the JJP in reaching the decision not to grant the adjournment. [ 18 ] Before me, the appellant could not point to any error of law in the decision of the SCA judge, but only to his position that the JJP committed an error by not granting the adjournment.

He argued that he was under the mistaken belief from his discussions with the City’s counsel that an adjournment would be granted because she would not oppose it and, secondly, that the information contained in the order pronounced by the Master amounted to an indication that enforcement would not take place. The City’s counsel, before me, indicated that she had never made such a commitment, but only that she had told the appellant that whether an adjournment should be granted was up to the JJP.

As to the order of the Master, it speaks for itself and does not amount to a prohibition against taking proceedings with respect to the property unless it were to lead to a seizure of it. [ 19 ] I am unable to see an arguable ground of appeal of the SCA judge’s decision involving an error of law or one that has any chance of success. [ 20 ] I would therefore dismiss the application for leave to appeal with costs in favour of the City. JA