COURT FILE NO.: 754/02

DATE: 20031006

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

blair r.s.j., gravely and epstein jj.

B E T W E E N:

UNIVERSAL AM-CAN LTD.

Appellant

• and -

TORNORTH HOLDINGS LTD. and THE CORPORATION OF THE CITY OF BRAMPTON

Respondents

Bryan Finlay, Q.C. and Ronald S. Sleightholm, for the Appellant

Timothy J. Hill and Patricia Foran, for the Respondents

HEARD: October 6, 2003

BLAIR R.S. J.: (Orally)

1This is a motion attacking an order refusing to grant leave to appeal. The general principle of law is that there is no right to appeal from a decision refusing to grant leave to appeal. This principle is important to protect the integrity of the leave to appeal process as a straining device.

2In the Divisional Court context however, ss.21(5) of the Courts of Justice Act, allows a panel of the Court on motion to set aside or vary the decision of a single Judge in a Divisional Court matter. This provision is utilized, we observe with increasing frequency, to attack decisions of Judges denying leave to appeal to the Divisional Court.

3The law is clear that such a motion can only be granted in the rarest of circumstances and only when the Judge refusing to grant leave to appeal has declined jurisdiction. This is sometimes expressed as the Judge’s declining jurisdiction by acting on a wrong principle, including whether the Judge applied the wrong test in deciding whether or not to grant leave or disregarded a statutory right or fail to give the party seekingly a right to be heard. See Millcraft Investment Corp. v. Ontario (Regional Assessment Commissioner, Region No. 3) (2000), 46 O.R. (3d) 685; Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 1996 413 (ON CA), 29 O.R. (3d) 612 (C.A.) and Denison Mines Ltd. v. Ontario Hydro (2001), 2001 5681 (ON CA), 56 O.R. (3d) 181 (C.A.).

4Here, the O.M.B. imposed a substantial cost award against the moving party, Universal, after a second hearing on a planning issue. In doing so it took into account the fact that Universal had taken untenable positions on the second hearing and generally that Universal’s conduct throughout had been vexatious and unreasonable as the Board saw it.

5Universal argues that in doing so the Board, in effect, denied them the hearing de novo that the Divisional Court had directed in an earlier decision (see Universal Am-Can Ltd. v. Brampton (City) (2000), 41 O.M.B.R. 129 (Div. Ct.)). It submits that the fact of the first hearing should not in any way affect the second hearing either with respect to the determination of the issues or costs. Having once been given the right to a de novo hearing a party cannot be penalized in costs for having exercised that right. Such a cost award potentially casts a chill on, and otherwise debases the right to a full right de novo when one has been ordered, so the argument went.

6Carnwath J. refused leave to appeal. He heard and considered the argument about the alleged denial of a hearing de novo. He concluded that the Board was entitled to consider the first hearing and Universal’s conduct in relation to the planning process and the second hearing in determining its award of costs. He accepted the submission that the right to relitigate the issues in the first hearing carried with it the risk of a costs award in a second. He also concluded that the Board’s findings with respect to costs were supported by the evidence.

7We are satisfied that Carnwath J. did not decline jurisdiction in hearing and refusing Universal’s motion for leave to appeal. He dealt with Universal’s argument directly and on the merits. He simply did not accept it. Whether he was right or wrong in doing so is not the issue. His rejection of Universal’s argument did not constitute the application of a wrong principle for the wrong test. There was no denial of a statutory right or of a right to a hearing. The motion is therefore dismissed.

8The motion record will read as follows: “For oral reasons given the motion is dismissed. The respondent is entitled to its costs, fixed in the amount of $5,000 as requested.”

BLAIR R.S.J.

GRAVELY J.

EPSTEIN J.

Date of Reasons for Judgment: October 6, 2003

Date of Release: October 9, 2003

COURT FILE NO.: 754/02

DATE: 20031006

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

blair r.s.j., gravely and epstein jj.