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Homeowner who built illegal wall on neighbouring land can't intervene in neighbour's sentencing

Certiorari applications are rarely granted under Ontario Provincial Offences Act, says appeal court

Homeowner who built illegal wall on neighbouring land can't intervene in neighbour's sentencing
The Ontario Court of Appeal rejected an appeal by individuals who built a wall without permission

The Ontario Court of Appeal has rejected an appeal filed by individuals who constructed a wall on a neighbouring property without the permission required by law, and who sought intervener status in the sentencing of the neighbouring property’s owner.

In Haver v. Credit Valley Conservation Authority, 2021 ONCA 156, the appellants, who are homeowners in the Lorne Park Estates neighbourhood, constructed a retaining wall in 2016 on the nearby land of the Lorne Park Estates Association, which holds property in common for all the neighbourhood’s residents.

The appellants had received permission from the association’s president, but no written permission from the Credit Valley Conservation Authority, which was required under the Conservation Authorities Act, R.S.O. 1990, c. C.27 and O. Reg. 160/06, since the association’s property adjoined a wetland.

In 2019, the association pleaded guilty before a justice of the peace to the provincial offences of interfering with and developing a wetland by construction of a retaining wall without the conservation authority’s written permission. The conservation authority and the association proposed a joint submission on sentence to require removal of the wall, which the association accepted as an illegal encroachment. The association also sought to remove the wall in a civil action.

The appellants filed an application for leave to intervene in the association’s sentencing, seeking to keep the wall on the association’s land. The justice of the peace dismissed the appellants’ application, finding that this application would be more appropriately dealt with in the ongoing civil action, and ordered the association to rehabilitate the wetland by removing the wall.

The Superior Court of Justice dismissed the appellants’ application for certiorari under s. 140 of the Provincial Offences Act, R.S.O. 1990, c. P.33, which sought to quash the order dismissing the application to intervene. The Superior Court found that the appellants failed to meet the high bar to establish a substantial wrong or miscarriage of justice, pursuant to s. 141(4) of the Provincial Offences Act.

The appellants therefore brought the case before the Court of Appeal for Ontario under s. 140(3) of the Provincial Offences Act. The appellate court dismissed the appeal and ordered the appellants to pay appeal costs of $20,000.

The appellate court ruled that the Superior Court did not make any reviewable error in refusing certiorari. Applications for certiorari under the Provincial Offences Act are rarely granted, and the Superior Court should only order the relief if it finds that a substantial wrong or miscarriage of justice has occurred, the appellate court said.

The appellate court also said that the justice of the peace justifiably refused leave to intervene, considering that she determined that the appellants had no expertise to help the court make an informed decision on sentence. Allowing the appellants to intervene in the association’s sentencing would be unfair because the wall was undoubtedly illegal in failing to comply with the legislation and the regulation, the appellate court said.

The appellate court stressed that granting intervener status is discretionary and done sparingly in criminal and quasi-criminal cases. A court would not usually permit intervention at a sentencing because, generally, only the Crown and accused individuals can properly speak to the outcome, said the appellate court.

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