A trip to Oshawa

In the late 80’s, Ed, a Real Estate Agent, contacted me about a problem he was having. He owned a house in Oshawa that he was using as an investment property and leasing it. The problem was that he had two tenants, one leasing the first floor and one leasing the basement. At the time, basement apartments were generally contrary to municipal by-laws.

Ed had been charged with a by-law infraction which required a court attendance.

Ed asked for my assistance in dealing with the matter. I advised him that he had little chance in obtaining a not guilty finding. He was very concerned about the matter, and eventually persuaded me in attending with him on the trial date. I expected a finding of guilt and a fine of about $500.00. Ed still asked for my attendance.

I don’t recall exactly what time of year the trial took place, but the weather was sunny and mild and the drive uneventful.

When we arrived at the courtroom there were about a dozen women who were there as an “accused” or were representing their spouses. The only males in the courtroom beside Ed and myself were the Judge, Crown Attorney, and the building inspector.

We were about number 4 or 5 on a list of about a dozen cases.

One after another the charge of breaching the municipal by-law concerning basement apartments was read, each accused pled guilty, the facts of the case were read into record, and the Judge fined the individual $500.00.

After observing the first two cases, Ed was looking pretty forlorn. By the third case, I advised Ed that I thought we had a good shot at a not guilty finding. He was to say the least suspect and was ready to pay the $500 fine.

Our case was finally called. I took my place with Ed at the defendant’s table. The Judge asked for the charge to be read. He then asked for a plea. When I directed Ed to say “not guilty” the Judge, the Crown Attorney, the stenographer and the court clerk all perked up. There was a general awakening in the courtroom. The Judge looked a little suspect and the Crown Attorney and the building inspector grinned.

The Judge asked the Crown to proceed. He called the Building Inspector to the stand and after being sworn in, he was asked to provide the results of his investigation. He reviewed his notes, which were glanced at by the writer prior to the giving of evidence. Based upon the testimony of the building inspector there was no question that the basement apartment of Ed’s house was being rented and occupied.

It was my time to cross-examine the Building Inspector. I asked him how tall he was. The crown jumped up and the Judge asked me what I was doing. I asked for an indulgence indicating that I had only a few questions after which everything would become patently clear. He advised me to go ahead with some caution.

The inspector answered, to my best recollection, 6 feet or so. I then asked him what he weighed. The crown began to rise, the Judge gave me a glare and I indicated that there were just a few more questions. The inspector, again to my best recollection, indicated about 180 lbs.

I asked him if he was in good health. The glares again came from the Judge, but before any objection, the inspector said “good”.

My response was, “you would have to be in good condition” to carry around your typewriter when you do your inspections. The inspector was confused. The Judge sat up straight and the Crown looked uncomfortable.

The inspector said that he doesn’t carry his typewriter to the residences. I responded that he must since his notes were typewritten. The Judge was now glaring and the crown had his head in his hands.

I then indicated that if what he was producing were not his notes taken at the time of inspection where were they. He indicated that he did not have them. Only the typewritten notes.

The Judge stared at the Crown who jumped to his feet and indicated that the Crown was withdrawing the charges. We attempted to hold back our grins, but without much success.

As I left the courtroom, the remaining women asked quietly what had happened. In more than a whisper, I said “plead not guilty”.

Ed was a happy camper and a couple of years later, the Ontario Government changed the rules so that basement apartments became, subject to meeting building standards, legal.

The moral of the story is that even though lawyers have the courtesy of the court to proceed at the top of a trial list in court, never go first. Watch and observe what is happening. You never know what the first two or three cases will reveal.