Ontario (Attorney General) v. 51 Taylor Avenue, 2014 ONCA 396

• Judge: MacPherson, Cronk and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 25, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 396;(2014), 322 O.A.C. 50 (CA)

Ont. (A.G.) v. 51 Taylor Avenue (2014), 322 O.A.C. 50 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JN.002

Attorney General of Ontario (applicant/respondent) v. 51 Taylor Avenue, Chatham, Ontario (PIN: 00550-1103(R)) (respondent/appellant)

(C56421; 2014 ONCA 396)

Indexed As: Ontario (Attorney General) v. 51 Taylor Avenue

Ontario Court of Appeal

MacPherson, Cronk and Gillese, JJ.A.

May 16, 2014.

Summary:

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 6355, allowed the Crown's application under s. 8(1) of the Civil Remedies Act for forfeiture of a 12 unit residential apartment building. The property owner appealed.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: This decision was released concurrently with decisions in two other related cases. See 322 O.A.C. 31; 2014 ONCA 395 and 322 O.A.C. 54; 2014 ONCA 397.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - An application judge allowed the Crown's application under s. 8(1) of the Civil Remedies Act for forfeiture of a 12 unit residential apartment building - The Ontario Court of Appeal dismissed the property owner's appeal - The court rejected the owner's argument that the application judge had erred in failing to consider the fact that the legal owner of the property was the owner's wife and in failing to consider her conduct in relation to the property - The owner's own evidence at the forfeiture hearing was that his wife was a mere nominee owner and that this was done for tax planning purposes - Further, the owner was advancing this argument for the first time on the appeal - As such, he was precluded from arguing that his wife was the relevant responsible owner - See paragraphs 15 to 17.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - An application judge allowed the Crown's application under s. 8(1) of the Civil Remedies Act for forfeiture of a 12 unit residential apartment building - The Ontario Court of Appeal dismissed the property owner's appeal - The court rejected the owner's argument that the application judge erred in finding that the owner had not taken sufficient steps to evict the tenants who were engaging in criminal activities - Given the volume of police occurrences at the property and the owner's role as property manager, it was impossible that he did not know of the extensive criminal activity - Despite being aware of such, he took no meaningful steps to evict the problematic tenants - It could not be said that all that could reasonably be done, in the language of s. 7 of the Act, "to prevent the property from being used to engage in unlawful activity" had been done - See paragraphs 18 to 20.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - An application judge allowed the Crown's application under s. 8(1) of the Civil Remedies Act for forfeiture of a 12 unit residential apartment building - The Ontario Court of Appeal dismissed the property owner's appeal - The court rejected the owner's argument that the application judge had erred in concluding that the owner did not fall within the "interests of justice" exception to forfeiture under s. 8(1) - The application judge explicitly addressed the interests of justice exception including the relevant factors to consider - He was entitled to describe the unlawful activity as "permeat[ing] the entire building inside and out" and to conclude that "the community, armed with the same information available to me, would see this as a deserving forfeiture" - See paragraphs 21 to 23.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised (incl. new theory of the case) - [See first Criminal Law - Topic 7062 ].

Cases Noticed:

Ontario (Attorney General) v. 8477 Darlington Crescent - see Ontario (Attorney General) v. 1140 Aubin Road, Windsor et al.

Ontario (Attorney General) v. 1140 Aubin Road, Windsor et al. (2011), 279 O.A.C. 268; 2011 ONCA 363, refd to. [para. 22].

Counsel:

Craig Bryson, for the appellant;

William J. Manuel and Dan Phelan, for the respondent.

This appeal was heard on February 25, 2014, by MacPherson, Cronk and Gillese, JJ.A., of the Ontario Court of Appeal. On May 16, 2014, MacPherson, J.A., released the following judgment for the court.