CITATION: Silveira v. Her Majesty the Queen, 2012 ONSC 3328

COURT FILE NO.: DC-11 000000320-00

DATE: 20120618

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

cunningham, A.C.J., matlow, j., baltman, j.

B E T W E E N :

AMELIA SILVEIRA, MANUEL SILVEIRA, DIANA BELVEDERE, MARGARET DEFAZIO and DANIEL BELVEDERE

Applicants (Respondents)

• and -

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the Minister of Transportation and THE REGIONAL MUNICIPALITY OF YORK

Respondents (HMQ Appellant)

-and -

ONTARIO GOOD ROADS ASSOCIATION

Intervenor

A. Rouben and D. Romaine, for the Applicants (Respondent)

L. Favreau and K. Smith, for the Respondent, HMQ, Appellant

S. Jones, for the Respondent, York

No appearance

for the Intervenor

Heard at Newmarket/Oshawa

March 7, 2012

MATLOW J.:

This appeal

1This is an appeal from an order of a motion judge dated July 8, 2011 dismissing a motion brought by Her Majesty the Queen, as represented by the Minister of Transportation (“HMQ”) that this application be transferred to the Divisional Court.

Disposition

2The appeal is dismissed.

The background of this appeal

3The pertinent events leading to the making of the order in appeal are as follows. As a result of injuries sustained by Amelia Silveira in a motor vehicle accident that occurred on December 12, 2004, an action for damages (“the related action”) was commenced on her behalf, and on behalf of the other applicants as Family Law Act claimants, against The Regional Municipality of York (“York”). The statement of claim in the related action included allegations that, contrary to the Municipal Act, 2001, S.O. c. 25 (“the Act”), York had failed to keep its roadways in a reasonably safe state of repair.

4In York’s statement of defence, it denied liability for the applicants’ claims relying, in part, on the Minimum Maintenance Standards, O. Reg. 239/03 (“MMS”) in support of its allegation that it did not have actual knowledge of the poor road conditions where the accident occurred and, therefore, was protected from liability.

5The applicants, the plaintiffs in the related action, then brought a motion for an order granting leave to amend the statement of claim to plead that the MMS, a regulation, was ultra vires its enabling legislation and, therefore, invalid. The motion judge, who was also the case management judge, dismissed the applicants’ motion and directed that the applicants challenge the validity of the MMS by bringing an application pursuant to Rule 14 so that he could hear that application separately and continue case managing the related action as well.

6Following the motion judge’s direction, the applicants commenced this application by which they sought a declaration that the MMS was “void and of no force or effect”, naming both HMQ and York as respondents. HMQ responded to the notice of application with a motion to the motion judge asking that the application be transferred to the Divisional Court. It is that part of the motion judge’s order dismissing the motion to transfer that prompts this appeal.

The positions of the parties

7The parties agree that the motion judge had the inherent jurisdiction to decide whether or not the MMS was ultra vires.

8However, it is the position of HMQ that this application is, in essence, one for judicial review and that, even though both the Superior Court of Justice and the Divisional Court have inherent jurisdiction to hear and decide it, the intervention of the Legislature in enacting the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. (“the Act”), requires that the granting of declaratory relief in respect of the exercise of a statutory power can be done only by application for judicial review to the Divisional Court. As well, it is its position that, whenever an issue such as that raised in this application is severed from another proceeding to be dealt with summarily, the proceeding must be transferred to the Divisional Court.

9It is the applicants’ position that there was nothing in Act that that limited the jurisdiction of the motion judge and he was entitled to exercise his discretion, as he did, by refusing to transfer the application to the Divisional Court and by deciding to hear and decide the application by himself.

The Judicial Review Procedure Act

10The provisions of the Act relevant to this appeal include, in part, the following.

Definitions

In this Act,

“application for judicial review” means an application under subsection 2 (1);

“court” means the Superior Court of Justice;

“statutory power” means a power or right conferred by or under a statute,

(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation (emphasis added),

Application for judicial review

2. (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

3. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

4. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power (emphasis added).

Application to Divisional Court

6 (1) Subject to subsection (2), an application for judicial review shall be made to the Divisional Court (emphasis added).

Application to judge of the Superior Court of Justice

(2) An application for judicial review may be made to the Superior Court of Justice with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.

Summary disposition of mandamus, etc.

7. An application for an order in the nature of mandamus, prohibition or certiorari shall be deemed to be an application for judicial review and shall be treated and disposed of as if it were an application for judicial review (emphasis added).

Summary disposition of actions

8. Where an action for a declaration or an injunction, or both, whether with or without a claim for other relief, is brought and the exercise, refusal to exercise or proposed purported exercise of a statutory power is an issue in the action, a judge of the Superior Court of Justice may on the application of any party to the action, if he or she considers it appropriate, direct that the action be treated and disposed of summarily, in so far as it relates to the exercise, refusal to exercise or proposed or purported exercise of such power, as if it were an application for judicial review and may order that the hearing of such issue be transferred to the Divisional Court or may grant leave for it to be disposed of in accordance with subsection 6 (2) (emphasis added).

Rule 14

11In his reasons, the motion judge stated that this application fell within the scope of rule 14.05 (3) (g) and (h). They read as follows.

APPLICATIONS - BY NOTICE OF APPLICATION

14.05 (3) Application under rules – A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application;

(h) or, in respect of any matter where it is unlikely that there will be any material facts in dispute.

12The motion judge’s reliance on rule 14.05 (3) (h) was correct and, as subsequent events have shown, fully justified. The validity of the MMS does not depend on any material facts in dispute.

13The motion judge also relied on rule 14.05 (3) (g), stating that the relief claimed in the application is ancillary to the related action. However, with respect, he erred in overlooking the requirement in the rule that the relief claimed must be ancillary to relief claimed in a proceeding properly commenced by notice of application and that the related action was commenced by statement of claim.

Analysis

14The main issue in this appeal is whether there is anything in the Act that required the motion judge to refer this application to the Divisional Court, as HMQ contends, rather than hear it himself. For the reasons that follow, I agree with the position of the applicants that there is not.

15I base this conclusion primarily on the language of the Act.

16Section 7 provides that an application for an order in the nature of mandamus, prohibition or certiorari “shall be deemed to be an application for judicial review” which must be brought in the Divisional Court. However, section 7 does not apply to this application because it is an application for a declaration only.

17Section 8 may have been applicable to the related action because the motion to amend made by the plaintiffs was made because the exercise of a statutory power had become an issue in the action and they wished to address it formally in their statement of claim by seeking a declaration that the MMS was invalid. It might also now be unduly technical and inconsistent with the purpose of the section to conclude that it was not applicable just because the issue of the validity of the MMS had to await the amendment of the statement of the claim before it could properly be said to be in issue. It was only because the issue had been raised in the action by the plaintiffs’ motion to amend the statement of claim that the motion judge directed that this application be brought. It is clear from paragraph 2 of his Reasons that the motion judge did not intend that this application be “an entirely free-standing… but to be ancillary to the tort action”.

18On the other hand, it may be that section 8 was not applicable because the exercise of a statutory power may not have become, technically, an issue in the action as required by section 8 but only an issue in this application. It is questionable whether this application could be anything other than “entirely free-standing” albeit related. However, in the circumstances of this case it is not necessary for us to decide this issue.

19If section 8 was applicable to the related action, it was open to the motion judge, if he considered it “appropriate”, to direct that the action, or that part of it involving the validity of the MMS, be treated and disposed of summarily ”as if it were an application for judicial review” and that it be transferred to the Divisional Court with respect to the issue regarding the exercise of a statutory power sought by the plaintiffs.

20The repeated inclusion of the permissive “may” in section 8 (3 times), the inclusion of “if he or she considers it appropriate” and the total absence of the mandatory “shall” are clear indications that all of the powers conferred were intended to be permissive and that it was within the motion judge’s discretion whether or not to order a transfer. It is of particular significance that the section provides that even though a judge considers it appropriate that an action be treated as if it were an application for judicial review, his or her power to order a transfer to the Divisional Court is stated using “may” and not “shall” as one would otherwise expect.

21It follows, nevertheless, that, whether or not section 8 was applicable, it was in the motion judge’s discretion whether or not to direct that the issue in this application be transferred to the Divisional Court and he determined, both when he made his original order and when he made the order in appeal, that it should not.

22The motion judge’s reasons for refusing to order a transfer reflect the careful consideration that he gave to the issue before him before concluding that the procedure that he directed was in the interests of justice. In particular, he strove to take an approach that was “practical and pragmatic”, that would minimize the likelihood of “procedural detours” and that would serve to better enable him to carry out his duty as the case management judge pursuant to rule 37.15 (1).

23In paragraph 35 of his reasons, the motion judge stated the following.

I could have referred the plaintiffs’ challenge to the Divisional Court as I was urged to do by York Region in the earlier motion, but I did not consider it appropriate to do so, to use the relevant word used in section 8 of the JRPA. I chose instead to require a rule 14 application ancillary to the action, and to retain jurisdiction over the challenge to the validity of the regulation in order to facilitate the orderly development of the evidence, the determination of that issue on a timely basis, and the expeditious trial of the action, all with an eye to judicial economy.

24He continued, in paragraph 36, as follows.

By way of aside, I could have directed the plaintiff to bring a motion under rule 21.01(1)(a) for the determination of a question of law while permitting the development of the evidence under rule 21.01(2)(a). That would have made it plainer that the process was not intended by me to be free-standing and independent of the action than the rule 14 route that I directed.

25With the benefit of hindsight, I observe, with respect, that it might have been better had the motion judge invited the parties to bring a motion under rule 21.01 (a) so that the validity of the MMS could be determined, beyond question, in the action. However, as there is no full appeal from the order before us, it is not for us to interfere with it.

26For the reasons set out above, I conclude that the order in appeal and the reasons given by the motion judge reflect no error in law. Nor do they reveal that the motion judge, in making the order in appeal, exercised his discretion unreasonably. In both respects, the order meets the applicable standards of review and must be upheld.

27Counsel filed written submissions with respect to costs at the conclusion of the hearing of this appeal. The claim of HMQ for both the motion for leave to appeal and the appeal is for $9,003.00 inclusive of disbursements of $ 227.00. The claim of the applicants for both proceedings is, in contrast, for $ 31.301.00 of which $ 8,750.00 is allocated to the motion for leave to appeal. This leaves $ 22,551.00 sought for the appeal only. There is no component for disbursements shown in the material filed but $ 10,500.00 is sought for legal research and the preparation of a factum for this appeal.

28The costs of the initial motion were disposed of by the motion judge and need not be addressed by us. As well, there is no copy in the material of any formal order granting leave to appeal and the endorsement of the judge who granted leave is silent with respect to costs. Without an express referral of those costs to us, they remain for that judge, if asked, to address.

29There is no good reason in this appeal to depart from the general rule that the costs of the appeal should follow the event. The costs awarded must be for the appeal only and must be in accordance with the principles set out in rule 57.01(1). As well, the amount awarded must be fair and reasonable and within the reasonable expectations of the parties.

30We consider the amount sought by the applicants for legal research to be excessive. Apart from this, we also view the balance sought as excessive. Accordingly, we award costs of this appeal to the applicants, fixed at $10,000.00. all-inclusive, to be recovered from HMQ.

MATLOW, J.

CUNNINGHAM, A.C.J.S.C.O.

BALTMAN J.

RELEASED: June 18, 2012

CITATION: Silveira v. Her Majesty the Queen, 2012 ONSC 3328

COURT FILE NO.: DC-000000320-00

DATE: 20120618

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

cunningham, A.C.J.S.C.O., matlow, j., baltman, j.