SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: 3394603 CANADA INCORPORATED, O/A HARMAN TRANSPORT and 1445913 ONTARIO INCORPORATED O/A HGC Applicants/Appellants (Moving Party)
- and -
DEPUTY REGISTRAR OF MOTOR VEHICLES Respondent (Responding Party)
BEFORE: CARNWATH, LEDERMAN & SWINTON JJ.
COUNSEL: Brian Snell, for the Applicants/Appellants (Moving Party)
Murray Forbes, for the Respondent (Responding Party)
HEARD AT TORONTO: December 15, 2008
E N D O R S E M E N T
1On this motion to vary, pursuant to s. 21(5) of the Courts of Justice Act, our task is to review Ferrier J.’s decision in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 – correctness on matters of law and palpable and overriding error on findings of fact.
2In considering whether there was a serious issue to be tried, Ferrier J. had to take into account the standard of review that would be applied on the appeal to be heard by the Divisional Court. That standard of review is reasonableness.
3We reject the submission that Ferrier J. made a palpable and overriding error when he found no serious issue to be considered on the alleged ineffectiveness of counsel. Ferrier J. reasonably concluded that experienced counsel made a tactical decision, nothing more. Given the specific instructions given to counsel by Mr. Shoker, and the evidence of conflict between Messrs. Watson and Mahmud, Ferrier J.’s conclusion was one to which he was entitled to come on the evidence. We find no palpable or overriding error in his conclusion.
4Ferrier J. also found there was no serious issue to be considered on appeal with respect to the alleged unreasonableness of the License Appeal Tribunal’s conclusion on the merits and the penalty. In so finding, Ferrier J. made no palpable and overriding error. There was ample evidence of Mr. Shoker’s poor past performance at Harman, the deterioration in the safety record of HGC and the continuing inability of Mr. Shoker to retain qualified people to deal with safety issues. Given this evidence, Ferrier J. reasonably concluded that there was no serious issue as to the Tribunal’s finding that HGC could not conduct its operations at the necessary level of safety.
5The Tribunal reasonably imposed a thirty-day suspension rather than a termination of the CVOR certificate, because HGC had not yet exceeded the minimum threshold for action by the Ministry. As well, HGC’s safety record appeared to have stabilized.
6As to the ground of appeal that the Tribunal failed to consider the recent safety record of HGC. Ferrier J. found that, even taking into account the updated record, the Tribunal still had the twenty-four prior months record which showed no significant improvement despite Mr. Mahmud being on the scene for a number of months. Ferrier J. reasonably concluded that this was not a serious issue to be considered on appeal. Indeed, the License Appeal Tribunal did take these matters into account when considering whether the license should be permanently revoked.
7As Ferrier J. made no palpable or overriding error in concluding that the moving party had not met its onus in satisfying the first branch of the test in R.J.R. MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (serious issue to be determined). It therefore becomes unnecessary to review Ferrier J.’s findings on the two other parts of the test (irreparable harm and balance of convenience).
8The motion to vary is dismissed with costs to the Registrar of Motor Vehicles of $2,000, inclusive of fees, disbursements and GST, partial indemnity basis, payable thirty days.
CARNWATH J.
LEDERMAN J.
SWINTON J.
DATE: 20081217