York (Regional Municipality) v. Burnett

York (Regional Municipality) v. Burnett

[2012] O.J. No. 3239
Ontario Superior Court of Justice — G.P. DiTomaso J. | July 4, 2012

Background

The Regional Municipality of York issued Gregory Burnett a certificate of offence with the wrong fine amount printed on it. The certificate showed a set fine of $265.00 and total payable of $325.00, but the correct amounts should have been $400.00 and $490.00 respectively. York brought a motion before the Justice of the Peace to amend the certificate under section 34(1)(c) of the Provincial Offences Act, serving notice of this motion by fax to X-Copper, Burnett's legal representative.

The Justice of the Peace dismissed York's motion to amend, ruling that the defect was a "fatal flaw" that couldn't be corrected. York then applied to Superior Court for an order of mandamus with certiorari in aid, seeking to quash the Justice of the Peace's decision and force him to allow the amendment. Burnett's counsel agreed to the relief sought, but raised a last-minute technical objection about service.

Issues

1. Was service by fax to the defendant's legal representative sufficient under section 87(1) of the Provincial Offences Act?
2. Should the motion to amend the certificate have been allowed?

The Service Dispute

Burnett's lawyer argued that section 87(1) of the Provincial Offences Act requires service either by personal delivery, mail, or other methods specified in the Act or court rules. Since York served the motion materials by fax to X-Copper rather than personally or by mail to Burnett himself, the service was defective and the entire application should fail.

Justice DiTomaso rejected this argument for several reasons. First, the objection came suspiciously late — it was raised for the first time the day before the Superior Court hearing, despite numerous earlier opportunities. Second, the evidence showed that X-Copper had actually requested and approved fax service to a specific number, and confirmed receiving the documents. Most importantly, the court found that the purpose of service is to give proper notice, and Burnett clearly received notice through his legal representative but chose to "sit on his hands" rather than respond.

The court relied on London (City) v. Erdesz, which emphasized that personal service is ultimately about ensuring the defendant knows about the complaint and has an opportunity to respond. Here, that purpose was clearly achieved through the fax to X-Copper.

Key Takeaway

Courts will look at whether proper notice was actually achieved, not just whether technical service requirements were followed to the letter.

If you receive notice of proceedings through your legal representative and fail to respond or object promptly, you can't later claim defective service as a way to escape the consequences. The court won't reward strategic silence followed by last-minute technical objections.