R. v. 1148044 Ontario Ltd.
Certiorari was inappropriate as a substitute for a statutory appeal from an interlocutory severance order and the anticipatory Charter claim was premature; the matter should be left to the trial judge, therefore the appeal is dismissed.
Source-derived case information.
- Citation
- C41574
- Parties
- Appellant: 1148044 ONTARIO LTD. c.o.b. as CAMBIA DESIGN BUILD; Appellant: COLIN GRAHAM; Respondent: HER MAJESTY THE QUEEN; Respondent: TREK MECHANICAL LTD.; Respondent: WAYNE D. SPEED
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 7 October 2004
- Procedural Posture
- Criminal / Appeal to Court of Appeal From Superior Court Judgment (and Interlocutory Justice of the Peace Order on Severance)
- Outcome
- Appeal dismissed; no costs awarded.
- Legal Topics
- Severance, Certiorari, Anticipatory Charter Breach, Interlocutory Orders, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
1148044 ONTARIO LTD. c.o.b. as CAMBIA DESIGN BUILD
Appellant
COLIN GRAHAM
Appellant
HER MAJESTY THE QUEEN
Respondent
TREK MECHANICAL LTD.
Respondent
WAYNE D. SPEED
Respondent
Procedural Posture
Criminal / Appeal to Court of Appeal From Superior Court Judgment (and Interlocutory Justice of the Peace Order on Severance)
Legal Issues
- 1 Whether certiorari is an appropriate remedy to challenge an interlocutory severance order
- 2 Whether a judge who is not the trial judge has jurisdiction to entertain the certiorari application
- 3 Whether an anticipatory Charter breach claim is premature
Ratio Decidendi
Certiorari was inappropriate as a substitute for a statutory appeal from an interlocutory severance order and the anticipatory Charter claim was premature; the matter should be left to the trial judge, therefore the appeal is dismissed.
Court Disposition
Appeal dismissed; no costs awarded.
Orders
- Appeal dismissed.
- No costs.
Full Case Text
Judgment text and source record
1 paragraphs
R. v. 1148044 Ontario Ltd. Collection Decisions of the Court of Appeal Date 2004-10-07 Docket numbers C41574 Judges Weiler, Karen Merle Magnuson; Goudge, Stephen Thomas; Blair, Robert Ashley Subject Criminal Decision Content DATE: 20041007 DOCKET: C41574 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) – and – 1148044 ONTARIO LTD. c.o.b. as CAMBIA DESIGN BUILD and COLIN GRAHAM (Appellants) – and – TREK MECHANICAL LTD. and WAYNE D. SPEED (Respondents) BEFORE: WEILER, GOUDGE and BLAIR JJ.A. COUNSEL: Norman A. Keith and Cristie Sutherland for the appellants Victoria A. Kondo and Giuseppe Ferraro for the respondent Her Majesty the Queen Elliot Berlin for the respondents Trek Mechanical and Wayne D. Speed HEARD & ENDORSED: October 5, 2004 On appeal from the judgment of Justice Sarah Pepall of the Superior Court of Justice dated March 8, 2004, and from the order of Justice of the Peace Waugh dated September 5, 2003. APPEAL BOOK ENDORSEMENT [1] The order of Justice of the Peace Waugh was an interlocutory order dealing with the question of severance. Assuming, without deciding, that a judge who was not the trial judge had jurisdiction to entertain this application, certiorari should not be used as a substitute for the lack of a statutory appeal from an interlocutory order. Therefore, Pepall J. was correct to refuse to decide the certiorari application. [2] To the extent the appellant alleges an anticipatory Charter breach, we are of the opinion that in the circumstances of this case the application is premature. The trial judge is in the best position to decide whether it is in the interests of justice to grant severance. [3] Accordingly, the appeal is dismissed. [4] In the circumstances we do not think this is a case for costs.