York (Regional Municipality) v. Sahraeian

York (Regional Municipality) v. Sahraeian

2011 ONCJ 253
Ontario Court of Justice — Justice Peter Tetley | September 16, 2010

Background

Sheida Sahraeian was convicted in default on three Provincial Offences Act charges in December 2009: driving without insurance, speeding, and operating without a valid permit. Three weeks later, on December 31, 2009, she filed applications to extend time to appeal all three convictions. When her extension applications came up for hearing on March 11, 2010, Sahraeian didn't show up — so the court dismissed them as abandoned.

Undeterred, Sahraeian filed three new extension applications the very next day, March 12, 2010. But there was a problem: Ontario had quietly amended section 85 of the Provincial Offences Act on December 15, 2009, adding a new subsection (2) that limits defendants to just one application for extension of time to file an appeal from conviction. The Region of York argued this new rule barred Sahraeian's second attempt entirely.

Issues

1. Can a defendant bring a second application to extend time to file an appeal if the first application was dismissed as abandoned?
2. Can a defendant bring a motion to re-open the initial dismissed extension application?

The "One Strike" Rule

Justice Tetley ruled that section 85(2) of the POA — which states "No more than one application for an extension of the time for filing of an appeal may be made in respect of a conviction" — absolutely prohibits second extension applications. The judge noted this was a deliberate legislative response to the "continuing problem presented by the serial abandonment and subsequent reconstitution of applications for extensions of time."

However, the court distinguished between filing a second extension application (prohibited) and seeking to re-open the original dismissed application (potentially allowed). Drawing on superior court precedents like R. v. J.R.B., Justice Tetley concluded that a Provincial Offences Appeal Court judge has jurisdiction to re-open a dismissed extension application — but only if the applicant can prove the initial dismissal resulted from "error" or that the court "was operating under some misapprehension of the material facts."

Key Takeaway

You get exactly one shot at an extension application for conviction appeals — miss your court date and you're likely done.

The 2009 amendment to section 85(2) ended the old practice of repeatedly filing extension applications. While there's a narrow possibility of re-opening a dismissed application, you'd need compelling evidence that the dismissal was unfair or based on error — not just that you forgot your court date.