Toronto (City) v. Wassilyn

Toronto (City) v. Wassilyn Collection Decisions of the Court of Appeal Date 1999-03-30 Docket numbers C30602 Judges Brooke, John Watson; Finlayson, George Duncan; O’Connor, Dennis Subject Civil Decision Content DATE: 1990330 DOCKET: C30602 COURT OF APPEAL FOR ONTARIO BROOKE, FINLAYSON and O?CONNOR JJ.A. BETWEEN: ) ) John Marko THE CORPORATION OF THE CITY OF ) for the appellant TORONTO ) (Respondent) ) ) and ) Geoffrey Uyeno ) for the respondent MICHAEL WASSILYN JR. ) ) (Appellant) ) ) Heard: March 17, 1999 ) FINLAYSON J.A.: [1] Michael Wassilyn Jr. appeals with leave from the judgment of Her Honour Judge Sparrow of the Ontario Court (Provincial Division). Sparrow J. dismissed his appeal from conviction under the City of Toronto Municipal Code, c.315 (“Municipal Code”) for selling tickets to a Blue Jay baseball game outside the Sky Dome stadium. Specifically, the appellant was charged that he: … on or about the 25th day of May, 1996 at the Municipality of Metropolitan Toronto in the Toronto Region, did commit the offence of vending in a prohibited area to wit: South side of Front Street West at John Street in Toronto at 12:30 p.m., contrary to the City of Toronto Municipal Code, Chapter 315, Section 315-2. Facts [2] On May 25, 1996, prior to a Toronto Blue Jays game, Detective Constable Dan Nealon observed the appellant standing on the sidewalk beside a no vending sign in the area of the Sky Dome in the Municipality of Metropolitan Toronto. Cst. Nealon observed the appellant yelling to passers-by asking if they wished to purchase tickets. Cst. Nealon saw another male walk over to the appellant and exchange money for tickets. Cst. Nealon approached the appellant and found that he did not have a vendor’s permit to sell goods of any kind, nor did he have permission to sell tickets. Cst. Nealon then charged the appellant with the offence of vending in a prohibited area contrary to the Municipal Code. [3] On the failure of the appellant to appear in response to his summons in the Ontario Court (Provincial Division), His Worship T. Walton entered a plea of not guilty to the charge in the appellant’s absence. The appellant was then convicted on the above evidence, fined $500, and given two years probation with the standard conditions. [4] The matter was appealed to Sparrow J. of the Ontario Court (Provincial Division). The appellant was represented. The main issue on appeal was whether the appellant was vending in a prohibited area contrary to the Municipal Code. It was the appellant’s submission that s.315-2 of the Municipal Code did not prohibit the impugned activity, namely, the selling of tickets to an event on a Toronto sidewalk. In particular, the appellant submitted that s.315-2 only regulated specific types of vending activities: the sale of goods and services from food vending vehicles, from portable display units and from workstations. Sparrow J. rejected the appellant’s submissions and found that, subject to s.315-5 of the Municipal Code, the plain wording of the statute created a clear prohibition against “vending” on city roads or sidewalks. [5] It was the appellant’s submission in this Court that Sparrow J. erred in her interpretation of ss. 315-1, 315-2 and 315-5 of the Municipal Code. The appellant also submitted that Sparrow J. did not properly direct herself on the issues, as she misinterpreted the relevant provisions of the Municipal Code. [6] Notwithstanding the manner in which the parties set out the issues in their facta, this Court expressed at the outset its concern with the sufficiency of the statutory underpinning of the By-law creating the offence for which the appellant was convicted. [7] Sections 315-1, 315-2 and 315-5 are the relevant provisions of the Municipal Code. Section 315-5 authorizes the issue of vending permits, while s.315-2 is the operative provision that creates the offence of vending. It states: 315-2 Subject to 315-5, 315-19 and 315-20, no person shall at any time in, over or upon the road, sidewalk or boulevard of any public highway vend or otherwise stop, park, place, store, stand or leave any object, vehicle or thing on the road, sidewalk or boulevard for the purposes of vending unless the use of the road, sidewalk or boulevard is by a farmer or market gardener selling or delivering goods to any place of business or residence adjacent to the road, sidewalk or boulevard, if the farmer or market gardener is not selling or delivering from a vehicle parked, stopped or standing in a designated area established under this Article. [8] The definition of “vend” is set out in s.315-1 as follows: VEND – To sell or offer to sell by retail or to manufacture, display, place or expose for the purposes of sale by retail any service or any goods, wares, merchandise, products, crafts, jewellery, refreshments, foodstuffs, flowers or any other items whatsoever, and “vending” shall have a corresponding meaning. [Emphasis added.] [9] It is the respondent’s submission that as an aid to confirm the City’s authority and intent to create a general prohibition regarding vending upon the City’s street allowances, one may look towards the enabling provincial legislation. The statutory authority for the general prohibition is found in the private legislation known as the City of Toronto Act, 1993 (No. 3). Section 2 of that Act provides as follows: 2. (1) Despite any other Act, the council of the Corporation may pass by-laws regulating or prohibiting activities carried out on public highways over which the Corporation has jurisdiction. (2) The activities that may be regulated or prohibited include, (a) parking on boulevards; (b) operating a boulevard café; (c) carrying on a sidewalk sale; (d) displaying merchandise; (e) installing bicycle stands, marquees, hedges, fences or other objects; and (f) selling, offering to sell, displaying or exposing any goods, wares, merchandise, products, refreshment, foodstuffs or flowers from a portable display unit. [Emphasis added.] Analysis [10] The definition of vending in s.315-1 of the Municipal Code is broader than the authorizing statute. It adds “crafts” and “jewellery” to a list of articles of sale stipulated in the statute followed by “or any other items whatsoever”. It adds “services” to the list. At the same time, the Municipal Code excludes the limiting words “from a portable display unit”. The authorizing statute makes no reference to tickets whatsoever. [11] It is trite law that a municipal corporation does not have any power beyond that which is specifically delegated to it by the provincial legislature. For example, in R. v. Greenbaum, [1993] 1 S.C.R. 674, Iacobucci J., for the Court, stated at p.687: Municipalities are entirely the creatures of provincial statutes. Accordingly, they can exercise only those powers which are explicitly conferred upon them by a provincial statute. [12] The facts of this case cannot sustain a conviction under the definition of vending in the Municipal Code without the unauthorized extension of the language of the City of Toronto Act, 1993 (No. 3). To the extent that the language in the Municipal Code makes it an offence to sell or display articles of sale such as tickets, other than from a portable display unit, it is ultra vires the City and of no force and effect. [13] Accordingly, the appeal is allowed, the judgment of Sparrow J. is set aside, and in its place an order shall go quashing the conviction against the appellant entered by His Worship T. Walton. Released: Mar 30 1999 “G. D. Finlayson J.A.” GDF “I Agree John W. Brooke J.A.” “I Agree D. O’Connor J.A.” _______________________________ 1 Date format is yyyymmdd 2 PUT IN CASE NUMBER – NOT LOWER COURT NUMBERS