Fort Erie (Town) v. Favero, 2018 ONCJ 987

CITATION: Fort Erie (Town) v. Favero, 2018 ONCJ 987 DATE: November 28, 2018 COURT FILE No.: Welland: 166140, 166141, 166142, 166143, 166144, 166145, 166146, 166147, 166183, 166184, 166185, 166186 ONTARIO COURT OF JUSTICE BETWEEN: TOWN OF FORT ERIE ___ AND ___ Daniel Favero, Leo Favero, Linda Favero, 2312810 Ontario Inc. Before Justice of the Peace S. Lancaster Heard on November 28, 2018 Reasons for Judgement released Orally on November 28, 2018 Motion: Abuse of Process Public Storage Facility & Cargo Containers – Use Not Permitted Town of Fort Erie By-Law 129-90 T. Hill ......…………...…………….…………………………..

Crown Prosecutor G. Sheppard …………….………………..…....................... Defence Counsel JUSTICE OF THE PEACE LANCASTER:

A) ISSUE: [ 1 ] There is a defence motion seeking the dismissal of the charges before this court. The motion submits: 1) the prosecution is an abuse of process of the court as the same charges have been brought against the defendants on several prior occasions that have been resolved in their favour; and 2) as a result the Town of Fort Erie is estopped from continuing the present prosecution [ 2 ] Abuse of process falls under common law doctrine and the Charter, (s.7). Both apply to regulatory offences (R. v. Abitibi Paper, 1979).

This court has the inherent jurisdiction to stay proceedings for abuse of process in exceptional circumstances, not because the prosecution has failed on case merit, but allowing the prosecution to proceed would tarnish court integrity. Abuse of process falls into two categories: 1) Conduct that impairs fair trial rights 2) Conduct that undermines the integrity of the judicial proceedings The motion before this court relates to the latter [ 3 ] The “test” in establishing abuse of process relates to the “prejudice to the integrity of the judicial system that will be manifested,

perpetuated or aggravated through conduct of the trial, or by its outcome” (R. v. Babos, 2014). The court must consider whether compelling the accused to stand trial would violate the fundamental principles of justice which underlie the community’s sense of fair play and decency, and prevent the abuse of the court’s process through oppressive or vexatious proceedings.

A stay of proceedings can only be entered in the clearest of cases (R.v.Young, 1984). [ 4 ] The defence submits that Informations were laid against his clients on 4 occasions, notably 1) December 2005 2) September 2009 – January 2010 3) April 2012 – August 2012 (adjudicated in 2013) 4) November 2015 – April 2016 (current charges) [ 5 ] The 2012 (in draft) and the current Informations were tendered to this court. The 2012 and current charges relate to the same defendants and the same properties.

The charge wording varies slightly (current charges include “cargo containers”) and the offence dates are different with the current charges laid some three years later.

As the defence motion materials show, the 2012 charges were addressed by the trial court, by dismissing the charges, ostensibly due to the absence of evidence of storage container contents, and as such, leading to reasonable doubt as to the properties use as a public storage facility. [ 6 ] The defence submits that the municipality continues to target his clients and that enforcement actions and prosecution proceedings should be deemed vexatious and the charges stayed.

The onus is on the defence to provide evidence to support the motion, on a balance of probabilities. [ 7 ] Defendant Daniel Favero provided viva voce evidence in relation to the defence motion. He operates “Favero Storage” on the noted Fort Erie properties and shares property ownership. He runs several businesses involving storage containers. He acquired the 960 Garrison Road property in 1988 from another party who had actively operated a business, including storage. [ 8 ] His businesses have been the subject of several charges that relate to the same property and nature of charges.

Despite efforts made (including the noted letter in Tab 8) no court documents were obtained to confirm the outcome, but Mr. Favero testified that the charges were dismissed on the case merit, including the defence of legal non-conforming use. He couldn’t recall other details. Exhibit photos were tendered depicting the 974 Garrison Road property that was taken this past week, but noted by Mr. Favero as accurately depicting the property when he purchased it in 1988. On cross examination, regarding Exhibits 3 and 4 (aerial photos of the same property) Mr.

Favero agreed that the photos do not depict the storage units on the property. Also on cross examination, the defence admitted that there was no correspondence between the defendant and the Town that would support Mr. Favero’s contention of his legal non-conforming property status since 2005. This despite subsequent charges Ms. Dolch’s letter of December 16, 2011 (Tab 5) referencing continuation on non-compliance. [ 9 ] The court heard from Mr. Stephenson, Town of Fort Erie’s By-Law Enforcement Coordinator whose testimony conflicts with that of Mr. Favero as to the 2005 charges. Mr.

Stephenson testified that the charges were not laid at the request of the Niagara Regional Police Service due to another investigation. Tab 6 of the Motion documents, a court transcript (at par. 20) notes “… that the charges were withdrawn at the request of the Niagara Regional Police”. [ 10 ] While the witness testimony was focused on addressing the Motion, at times the evidence addressed matters clearly more appropriate for the trial court.

The defence endeavoured to show the extent of the prosecution as well as the outcomes that might support the abuse of process Motion. [ 11 ] While the trial court in 2013 dismissed the charges, that court’s findings does not preclude or bar the municipality from ongoing enforcement and prosecution of alleged zoning By-Law violations. In fact it is incumbent on the municipality to enforce By-Laws, the public expect nothing less.

This would include ongoing enforcement including, and some might argue in particular, citizens who appears to ignore the By-Laws. [ 12 ] The trial transcript refers to a defence statement made to the By-Law officer that there were storage units present on the property, and claiming the legal non-conforming status of the business although no defence evidence was proffered, nor was the issue adjudicated. The transcript further noted (at page 5) that Dan Favero had hired a legal firm to prove legal non-conforming status; this despite Mr.

Favero stating today that the court adjudicated on this in 2005. [ 13 ] A Res Judicata defence was submitted to support a stay of proceedings. This relates to matters that have been finally determined that cannot be re-litigated – this general principle is applied through estoppel. As for Ground 2 of the Motion, “Issue estoppel”, as noted by the Supreme Court of Canada in R. v.

Van Rassel (1990): “the rule that a court should not rule on an issue that has already been decided by another court is a fundamental principle of our justice system”. “It is well established that this legal principle applies only in circumstances where it is clear from the facts that the question has already been decided” to estop parties seeking to re-litigate matters” [ 14 ] Apart from the 2013 court disposition, it is not clear what specific charges have been adjudicated, apart from Mr. Favero’s limited testimony that conflicts with that of Mr. Stephenson (a prosecution witness).

This is not one of those cases involving the “clearest of cases” that would support a Stay. Absent confirmation of the court’s disposition regarding the 2005 charges, and given the apparent defence focus on legal non-conforming status, entering a Stay might suggest the defence was adjudicated in 2005, when that has not been confirmed. This defence is a matter for adjudication. Judgement : [ 15 ] This court concludes that there is no evidence of bad faith, discrimination or ‘vexatiousness’ on the part of the Town and the prosecution’s motives are not improper.

Proceeding with this trial on the case merits does not prejudice fair trial rights or the integrity of

the justice system. The Motion is dismissed. Defence Cases: Angle v. Minister of National Defence, 1974 CarswellNat (SCC) CUPE, Local 79 v. Toronto (City), 2012 Carsewell 4040 (Ont Div Ct) Donmor Industrial Ltd v. Kremlin Canada Inc., 1991 CarswellOnt 1065 (Ont Gen Div) Las Vegas Strip Ltd v. Toronto (City), 1996 CarswellOnt 3426 (Ont Gen Div) R v. C (DN), 2011 CarswellOnt, 13497 (Ont CA) Reddy v. Oshawa Flying Club, 1992 CarswellOnt 349 (Ont Gen Div) Prosecution’s Case R. v. Reeve, [2000] O.J. No. 3538