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POWERS OF MUNICIPALITY - Constitutional issues - Federal and provincial jurisdiction - Interjurisdictional immunity - ractice and procedure - Costs

Tuesday, January 16, 2018 @ 10:09 AM  

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Appeal by the prosecutor, the City of Oshawa, from the order quashing the Information and ordering costs against the City. In November 2013, the corporate respondent was charged with failing to obtain a building permit prior to renovating an aircraft hangar. The hangar was built by a real estate corporation as part of a complex of aircraft hangars at the Oshawa Airport. The corporate respondent was solely owned by a local businessperson named Sciuk. There was no dispute that Sciuk commenced construction on an addition to his hangar without obtaining a building permit. He believed that his aircraft hangar was subject to federal jurisdiction and that provincial legislation did not apply. At trial, the respondent/defendant brought an application seeking a ruling that the Building Code Act did not apply to his aircraft hangar because of federal jurisdiction over matters of aeronautics. Counsel for the respondent/defendant argued that the constitutional law doctrine of interjurisdictional immunity justified such a ruling. The trial judge granted the application and quashed the Information charging the corporate respondent. The trial judge found that the respondent’s property was part of the Oshawa Airport and that the constitutional law doctrine of interjurisdictional immunity applied to immunize the respondent from any attempt by the City to enforce provincial law in the circumstances. The appellant City took the position that the trial judge erred in numerous ways, including by misapplying the doctrine of interjurisdictional immunity.

HELD: Appeal allowed in part. The trial judge held that the federal government maintained jurisdiction over matters of aeronautics. That finding was correct on a proper interpretation of relevant binding legal precedent. The trial judge correctly found that the defence of interjurisdictional immunity applied given the record on the application. The trial judge provided a clear and comprehensive roadmap to the decision on the application and did not err in quashing the Information. The appeal of the order quashing the Information was dismissed. However, the trial judge erred by ordering costs of $111,000. It was not appropriate to levy costs against the prosecutors for the misconduct of witnesses in the absence of specific factual findings that the prosecutors participated in the misconduct. The evidentiary record did not support a finding that the conduct of the prosecutors constituted a marked and unacceptable departure from the reasonable standards expected of the prosecution. The costs order was set aside.

Oshawa (City) v. 536813 Ontario Ltd., [2017] O.J. No. 6428, Ontario Court of Justice, M.S.V. Felix J., December 1, 2017. Digest No. TLD-January152018003