Anderson v. City of Hamilton, Property Standards Committee, 2010 ONSC 6590

SWINTON J. (ORALLY)

1This Court has no jurisdiction to hear this application for judicial review. The applicant seeks to challenge the judgment of a judge of the Superior Court of Justice hearing an appeal pursuant to s.15.3(4) of the Building Code Act, 1992, S.O. 1992, c.23 (“the Act”).

2The law is clear that certiorari is not available at common law to challenge a decision of a Superior Court judge, except perhaps in exceptional circumstances (Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835 at para. 42; Connie Steel Products Ltd. v. Greater National Building Corp. (1977), 3 C.P.C. 327 (Div. Ct.) at para. 3).

3Counsel for the applicant acknowledged that there are no exceptional circumstances here. Even if judicial review might be available to challenge the decision of a judge on jurisdictional grounds, as the Court of Appeal left open in Yorkville North Development Ltd. v. North York (City) (1988), 1988 4701 (ON CA), 64 O.R. (2d) 225, the Notice of Application for Judicial Review here does not challenge the judge’s decision on jurisdictional grounds.

4Therefore, the application for judicial review is quashed.

5We have no jurisdiction to determine whether the judgment can be appealed to the Court of Appeal. Given s.15.3(7) of the Act, it is for the Court of Appeal to determine whether an appeal lies to it and whether leave should be granted to extend time to appeal.

6Moreover, this is not a situation where we should apply s.110 of the Courts of Justice Act, R.S.O. 1990, c.C.43, which permits us to transfer a proceeding to another court if the proceeding was commenced in the wrong court. First, this proceeding was commenced as a judicial review application, not as an appeal. The two are different proceedings. Second, it was commenced after any right of appeal had expired. If there is to be an extension of time to appeal, that is a decision to be made by the Court of Appeal.

7Finally, the applicant argued that this application for judicial review was properly brought to challenge the order of Mr. Dilks, a Municipal Law Enforcement Officer, dated March 3, 2010. However, that order was withdrawn in June 2010. Therefore, the application is moot with regard to that order. We see no reason to exercise our discretion to hear the matter.

8I have endorsed the Application Record, “This application is quashed for oral reasons given. Costs to the City are fixed at $2,000, inclusive of disbursements and any taxes payable.”