The court said an application the paralegal was tasked with filing would have failed if heard
A paralegal who failed to file a waiver application on behalf of his clients, leaving them unable to proceed with a court appeal, did not provide the clients with ineffective assistance of counsel, the Ontario Court of Appeal ruled Friday.
The court said even if the paralegal had filed the waiver application – which sought relief from a court-imposed fine – there was little prospect that it would have succeeded anyway.
“The appellant’s deliberate choice not to pay the fine is wholly unrelated to the services provided by the paralegal,” Justice William Hourigan wrote. “It was the failure to pay that led to the appeal being summarily dismissed.”
Justices Grant Huscroft and Steve Coroza concurred.
The appellants who hired the paralegal own a farm property in the Town of Erin, Wellington County. In 2005, one of the farm owners began importing fill onto the property so the land could eventually be used for agricultural purposes. In 2008, he began talking to the town and the Grand River Conservation Authority, a government agency, about obtaining permits to continue the fill operation on a part of the property that covered a provincially designated wetland.
After their first permit expired in 2012, the farm owner declined to apply for a second permit because he disagreed with the price, which had increased over time. The GRCA monitored the property over several years and found the farm owner repeatedly performing fill operation tasks that he was not authorized to do without a permit.
In 2016, the GRCA obtained an injunction to stop the activity and charged both farm owners with three counts of undertaking development or allowing another person to undertake development without a permit. A court found the owners guilty of all three charges and ordered $25,000 in fines.
The farm owners appealed to the Ontario Provincial Offences Appeal Court but did not pay the fine until nearly a year after the statutory appeal deadline. The owners needed to pay the fine to appeal unless they received a waiver of compliance. The court dismissed their appeal on the basis that they did not file the required material on time.
The farm owners appealed the POAC decision to the OCA, alleging the paralegal they hired to assist them with their charges and the POAC appeal had provided ineffective assistance.
The paralegal countered that he had advised his clients to pay the fine. However, he agreed he provided ineffective counsel during the appeal, stating he encountered health issues and could not file the waiver application as a result.
In Friday’s decision, the OCA noted that the farm owners knew they had to pay a fine to file their appeal, but they did not do so until later.
The OCA also said the appellants “suffered no prejudice due to the failure of the paralegal to seek a waiver” since the application probably wouldn’t have succeeded even if it had been heard. Noting that the appellants’ lawyer agreed that the waiver application likely would have failed, the OCA went on to dismiss the lawyer’s argument that the appellants would nonetheless have had the opportunity to pay the fine and have their appeal heard if the paralegal filed the waiver application.
The OCA said they did not “accept this theory.”
In a statement, the GRCA told Law Times, “The Grand River Conservation Authority is pleased with the Ontario Court of Appeal’s decision.” The agency declined to comment further.
Counsel for the parties declined to provide a comment since the matter is ongoing.
