R. v. Wannas (H.) et al., (2004) 359 A.R. 108 (PC)

• Judge: Tilley, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: May 07, 2004
• Citations: (2004), 359 A.R. 108 (PC);2004 ABPC 85

R. v. Wannas (H.) (2004), 359 A.R. 108 (PC)

MLB headnote and full text

Temp. Cite: A.R. TBEd. JN.006

Her Majesty the Queen v. Hanna Wannas, Salwa Wannas, Jenny Wannas-Jones and John Jones

(017321266P1; 2004 ABPC 85)

Indexed As: R. v. Wannas (H.) et al.

Alberta Provincial Court

Tilley, P.C.J.

May 7, 2004.

Summary:

The defendants were the landlord husband and wife, their daughter and their son-in-law. They were jointly charged with the following 16 offences under the Public Health Act and the Housing Regulation with respect to rental accommodations: (1) to (4) contravening orders issued by an executive officer under the Act; (5) failing to ensure that the housing premises were maintained in a waterproof, windproof, and weatherproof condition; (6) not ensuring that all windows and exterior doors were maintained in good repair, free of cracks and weatherproof; (7) failing to provide a window that was acceptable as a secondary means of egress in a fire or other emergency in all rooms used for sleeping; (8) not ensuring that the housing premises were maintained in safe condition; (9) failing to ensure that all rooms containing a flush toilet and/or a bathtub or shower had walls and floors that were smooth, non-absorbent to moisture, easy to clean and formed a watertight joint with each other, the floor, the ceiling and where applicable with the bathtub or shower; (10) failing to ensure that the plumbing system and the sanitary drainage system including drains, fixtures, traps, vents, stacks, waste disposal facilities were maintained in a proper operating condition; (11) failing to ensure that the basement bathtub room was provided with natural or mechanical ventilation; (12) failing to have food preparation surfaces which were easily cleaned; (13) failing to have walls and floors smooth, non-absorbent to moisture and easy to clean; (14) failing to maintain the heating facilities in good working condition, so that they are capable of safely and adequately heating all habitable rooms, bathrooms, and toilet rooms within the building to a temperature of at least 22 o C(71 o F); (15) permitting a condition in the housing premises that was or could become injurious or dangerous to public health including any condition that may hinder in any manner the prevention or suppression of disease, to wit: not maintaining bedroom doors in good repair; and (16) permitting a condition in the housing premises that was or could become injurious or dangerous to public health including any condition that could hinder in any manner the prevention or suppression of disease, to wit: not maintaining the venting system of the hot water tank in good repair.

The Alberta Provincial Court, on a non-suit application, dismissed counts 1 and 4 against the daughter and the son-in-law. The court would have acquitted them if it had been wrong in law on the non-suit application. The other charges against the daughter and the son-in-law were withdrawn. The court found the landlord and his wife guilty under counts 1, 4, 6 and 8, not guilty under counts 2, 5, 7, 9, 10, 12, 14, 15 and 16, and stayed the charges under the Kienapple principle under count 3. Count 13 was withdrawn at the request of the Crown.

Health - Topic 1248

Public health legislation - Offences - Owner - Defined - The defendants were the landlord husband and wife, their daughter and their son-in-law - They were jointly charged with certain offences under the Public Health Act and the Housing Regulation with respect to rental accommodations - The Crown proceeded on only two charges against the daughter and the son-in-law, arguing that they had the "care and control" of premises for a time - The Alberta Provincial Court ordered a non-suit with respect to the daughter and the son-in-law or, in the alternative, acquitted them - The daughter and the son-in-law did not have "care and control" because they were not the registered owners nor were they professional agents - See paragraphs 214 to 223.

Health - Topic 1249

Public health legislation - Offences - Offences respecting weatherproofing - The defendant landlords were prosecuted for violations of the Public Health Act (Alta.) and the Housing Regulation for failing to ensure that rental housing premises were maintained in a waterproof, windproof, and weatherproof condition - More specifically, the charges related to storm windows that were not in place - The defendants replied that their obligation, under s. 2(b)(ii) of the Minimum Housing and Health Standards issued by the Minister pursuant to s. 4 of the Housing Regulation (Alta.), was to provide the storm windows and not to install them - It was proven that storm windows were made available to the tenants for installation - The Alberta Provincial Court acquitted the defendants - See paragraphs 255 to 263, 293 to 299, 319 to 328.

Health - Topic 1255

Public health legislation - Offences - Defences - Due diligence - By information dated November 30, 2001, the defendant landlords were prosecuted for rental housing health and safety violations that allegedly occurred beginning on May 22, 2001 - Two violations related to the size of a window used as an emergency secondary egress from a main floor bedroom - The Crown alleged that these violations existed on May 22 and continued until November 30 inclusive - The defendants invoked the due diligence defence, saying that they had the offending window fixed by October 25 - The Alberta Provincial Court acquitted the defendants - Due diligence was made out where: (1) an executive officer's order respecting the emergency egress window was ambiguous as to which window it applied to; (2) the main floor bedroom window was rectified; (3) the situation resulting from changing tenants after evictions in March 2001 was complex; and (4) the defendants were engaged, after the evictions, in a program of repair, replacement, upgrading and improvement to essentially all aspects of the rental house - See paragraphs 231 to 238, 334 to 339.

Health - Topic 1255

Public health legislation - Offences - Defences - Due diligence - The defendant landlords were prosecuted for rental housing health and safety violations - One such violation resulted from a failure to comply with an executive officer's order that required the defendants to repair or correct a safety hazard with respect to a door that opened directly above a stairway to the basement - The defendants said that the property was vacant - The Crown said that there would be no offence if the property were vacant but the evidence showed that there were people who slept in the basement - The Alberta Provincial Court convicted the defendants - The defence of due diligence was not made out - See paragraphs 239 to 243.

Health - Topic 1255

Public health legislation - Offences - Defences - Due diligence - The defendant landlords were charged with failing to ensure that all windows and exterior doors were maintained in good repair, free of cracks and weatherproof - The Alberta Provincial Court convicted the defendants -There was one offending window and it was broken - While the court did also find that tenants (or others) frequently broke windows, and also that the defendants had a system in place, using a commercial glass company and various handymen and others to get windows fixed, that system could not be said to establish, for this particular window, due diligence, due to the passage of time, June to November - See paragraphs 329 to 333.

Trials - Topic 1107

Summary convictions - Defences - Officially induced error of law - The defendants owned rental premises with units capable of accommodating multiple tenants - The Safe Housing Committee (SHC) dealt with health and safety issues affecting multiple-tenant housing - In December 2000, the SHC sent the defendants two letters requiring them to provide, by February 7 and 12, 2001 respectively, a schedule of repairs to be effected within a six-month period - That period was to end in August 2001 - Before the defendants provided the schedule, they converted the premises from multiple-tenant rental to single family rental - The SHC was no longer involved -Executive officer's orders were issued against the defendants - By information dated November 30, 2001, the defendants were prosecuted for health and safety violations that allegedly occurred beginning on May 22, 2001 - The defendants invoked officially induced error of law - The Alberta Provincial Court rejected the defence - The six-month period for repairs and the defence would have been available if the defendants had not converted their property and thus took steps to avoid dealing with the SHC - See paragraphs 1 to 30, 209 to 213.

Trials - Topic 1115

Summary convictions - Defences - De minimis non curat lex - The defendant landlords were prosecuted for rental housing health and safety violations - Two such violations resulted from failures to comply with an executive officer's order that related to screws protruding from door hinges - The doors had been removed - It was alleged that the screws could injure someone - The Alberta Provincial Court acquitted the defendants - The court had reasonable doubt about the actus reus - In the alternative, the matter was governed by the maxim de minimis non curat lex - See paragraphs 276 to 279, 302 to 305.

Trials - Topic 1116

Summary convictions - Defences - Multiple convictions for same subject matter precluded - The defendant landlords were charged with 16 offences under the Public Health Act (Alta.) and the Housing Regulation with respect to rental accommodations - Count 6 related to failing to ensure that all windows and exterior doors were maintained in good repair, free of cracks and weatherproof - Count 3 related to the violation of an executive officer's order that covered the subject matter of Count 6 - The Alberta Provincial Court held that the offence under Count 6 was proven and stayed the charge under Count 3 by reason of the Kienapple principle - See paragraphs 281 to 306.

Trials - Topic 1172

Summary convictions - Strict liability offences - Defence of due diligence or error of fact - [See all Health - Topic 1255 ].

Cases Noticed:

R. v. Onevathana (S.) et al. (2002), 306 A.R. 345 (Q.B.), consd. [para. 195].

R. v. Goebel (W.) (2003), 338 A.R. 201; 2003 ABQB 422, refd to. [para. 198].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 40 C.C.C.(2d) 353; 3 C.R.(3d) 30; 7 C.E.L.R. 53, consd. [para. 199].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193, refd to. [para. 200].

R. v. General Scrap Iron & Metals Ltd. (2003), 327 A.R. 84; 296 W.A.C. 84; 2003 ABCA 107, refd to. [para. 202].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 162 C.C.C.(3d) 298, refd to. [para. 203].

R. v. Cancoil Thermal Corp. (1986), 14 O.A.C. 225; 27 C.C.C.(3d) 295; 11 C.C.E.L. 219 (C.A.), consd. [para. 210].

R. v. Jorgensen (R.) (1995), 189 N.R. 1; 87 O.A.C. 1; 102 C.C.C.(3d) 97 (S.C.C.), consd. [para. 211].

R. v. Kraus (H.) (1997), 203 A.R. 132 (Q.B.), refd to. [para. 218].

Statutes Noticed:

Housing Regulation - see Public Health Act Regulations (Alta.).

Minimum Housing and Health Standards - see Public Health Act Regulations (Alta.).

Public Health Act, R.S.A. 2000, c. P-37, sect. 1(ff) [para. 214].

Public Health Act Regulations (Alta.), Housing Regulation, Reg. 173/99, sect. 1(c) [para. 215].

Public Health Act Regulations (Alta.), Minimum Housing and Health Standards, sect. 2(b)(ii) [paras. 259, 260, 294, 295, 323, 324].

Counsel:

Robert T. O'Neill, for the Crown;

Douglas H. Christie, for the accused.

This prosecution was heard on September 16 to 20, 2002, June 20 to 22, 2003, and November 3 and 4, 2003, by Tilley, P.C.J., of the Alberta Provincial Court who delivered the following decision on May 7, 2004.