Smith v. Corporation of the Town of Bracebridge, 2013 ONSC 891
CITATION: Smith v. Corporation of the Town of Bracebridge, 2013 ONSC 891
DIVISIONAL COURT FILE NO.: 425/12
DATE: 20130208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ROBERT SMITH REPRESENTING AND ON BEHALF OF THE BANGOR RATEPAYERS ASSOCIATION INC.
Moving Party
– and –
THE CORPORATION OF THE TOWN OF BRACEBRIDGE and 1712216 ONTARIO INC.
Responding Parties
John Campion, Antonio DiDomenico and Sarah Jane Turney, for the moving party
Michael Miller, for the respondent 1712216 Ontario Inc.
Ian Rowe, for the respondent Town of Bracebridge
Stan Floras, for the Ontario Municipal Board
HEARD at Toronto: January 28, 2013
MOLLOY J.:
REASONS FOR DECISION
A. THE APPLICATION
[1] This is an application for leave to appeal to the Divisional Court from two related decisions of the Ontario Municipal Board (“OMB”): a decision by Member Sniezek (“the Member’s party decision”) dated August 21, 2012; and a decision of the OMB Chair dated October 12, 2012 (confirming the August 21, 2012 decision). Both decisions held that an earlier decision by the Member dated November 24, 2011 had correctly named John Campion and Robert Smith as the appellants before the OMB. Both the Member and the Chair refused to change the designation of the appellants or substitute any other parties for Mr. Campion and Mr. Smith. Leave to appeal is sought from that determination.
B. BACKGROUND
[2] The underlying dispute giving rise to this litigation involves a large tract of undeveloped land in Bracebridge, which had previously been a summer lodge and golf course. In October, 2006, 1712216 Ontario Inc. (“the Developer”) bought the property and sought a zoning by-law amendment and consent to sever the property, which applications were opposed by many cottage owners and residents in the area. Among the individuals who presented material and made submissions in opposition to the planned development were John Campion (who owned a cottage in the area) and Robert Smith (also a nearby cottage owner). Both Mr. Campion and Mr. Smith are members of an incorporated association of cottagers and area residents named the Bangor Ratepayers’ Association (“the Association”).[^1] The Association was incorporated in August 2007. Robert Smith was one of the original officers, as was John Mercer, who is the president. John Campion is also a member of the Association. The Association did not, in its own right, file any material or make any submissions before the Town or the Committee of Adjustments, although a number of its members did (including Mr. Campion and Mr. Smith).
[3] In August and September, 2010, the Developer was successful before the Town of Bracebridge in obtaining both the severance and the zoning by-law amendment. Appeals were thereupon launched to the OMB. Because there was both a severance and a zoning amendment and three parcels of land, there were actual multiple appeal filings. However, for practical purposes, it is fair to say that in essence there were two appeals.
[4] Commencement of an appeal before the OMB requires the filing of a form entitled Appellant Form A1. In September 2010, Mr. Campion, in his personal capacity, commenced an appeal with an Appellant Form A1. Mr. Campion is a senior lawyer and experienced litigator with the Toronto law firm, Fasken Martineau DuMoulin LLP (“Faskens”). His Form A1 was completed and filed on his behalf by another lawyer at Faskens and Faskens is shown as the solicitor of record. In addition, an Appellant Form A1 was filed by Robert Smith, in his personal capacity “and on behalf of the persons named in Schedule B.” Schedule B listed, in addition to Mr. Smith, 21 other individual cottage owners. John Mercer was one of the persons listed. John Campion was not. Apparently, all of the people listed are members of the Association. However, the full membership of the Association is about 85, so clearly not all of the Association members are individually named. Mr. Campion advised this Court in the course of argument that he personally completed the Appellant Form A1 filed on behalf of Mr. Smith and the 21 people listed in Schedule B. However, the form itself does not list a solicitor of record.
[5] The OMB issued a Notice of Hearing stating the appellants to be John Campion and Robert Smith. No objection was taken to this formulation by either Mr. Campion or Mr. Smith. No application was made to have any other person or entity added as a party, nor was there any application by either Mr. Campion or Mr. Smith to withdraw or abandon the appeals they had commenced.
[6] The hearing commenced before the Member in July 2011 and proceeded as a trial de novo. Faskens appeared as counsel for the appellant, with Mr. Campion as lead counsel. The proceedings were not recorded and no transcript is available. There were preliminary motions, five days of evidence, written submissions and a final day of argument.
[7] For written reasons released on November 2011, the Member dismissed the appeals, stating that “the overwhelming evidence in this case points to a dismissal.” The style of cause on the decision listed two appellants: John Campion and Robert Smith. Counsel for the appellants are stated to be John Campion, Antonio DiDomenico, Sarah Turney and Sebastian Purnell (student-at-law). The Member noted in his reasons that there had been submissions before him as to the conduct of the lead counsel for the appellants. On this point, he held, “The Board will not comment on the conduct but leaves the matter to the Parties with respect to cost submissions or in the alternative, submissions to the Bar.”
[8] Costs are not the norm in proceedings before the OMB. Although the Board does have jurisdiction to award costs, Rule 103 stipulates that this can only be done where “the conduct of a party has been unreasonable, frivolous or vexatious or if the party has acted in bad faith.”[^2] A party seeking costs is required under Rule 96 to given written notice to the Board within 30 days after a written decision is issued, stating against whom and in what approximate amount costs are being requested.
[9] Counsel for the Developer and counsel for the Town wrote to the Board (on December 20 and December 21, 2011 respectively), advising that their clients sought costs in the combined amount of $225,000.00 payable by the appellants, John Campion and Robert Smith. They requested a hearing date for oral submissions on the issue.
[10] On January 18, 2012, Mr. DiDomenico wrote to the Member requesting a “minor amendment” to the reasons for decision dated November 24, 2011. Mr. DiDomenico stated that the actual appellant before the OMB had been the Bangor Ratepayers’ Association and that the references to John Campion and Robert Smith were “in error.” Mr. DiDomenico referred the Member to Rule 108 of the OMB Rules as authority for the amendment sought.
[11] The Member decided to proceed first with a hearing on the question of the proper parties, deferring the costs issue until after the parties issue had been resolved.
C. THE DECISIONS FROM WHICH LEAVE TO APPEAL IS NOW SOUGHT
The Member’s Decision as to Parties
[12] A hearing on the parties issue proceeded before the Member on June 25, 2012. Three lawyers from Faskens (Mr. Campion, Mr. DiDomenico and Ms Turney) again appeared as counsel for the appellants. Both the Town and the Developer were also represented by counsel. The appellants took the position that an organization they identified as the “Bangor Ratepayers Association Inc.” was always the proper party appellant and that the Member had jurisdiction under Rule 108 to correct this minor error by replacing the names of Mr. Campion and Mr. Smith with the name of the Association. Alternatively, it was submitted that the 22 other individuals listed on the Schedule to Mr. Smith’s A1 form should be added as named appellants, preferably (although not necessarily) with the Association added as well. The appellants further submitted that if the Member was of the view that this was not a minor error correction, he should proceed to consider the matter under Rule 109 and still make the same correction.
[13] The Member delivered his written reasons on August 21, 2012. The Member came to three conclusions:
(1) As a question of fact, the Association had never been a party before the Board. The Member noted that: the A1 forms contain only the names of Robert Smith and John Campion without any reference to the Association; the Association had been incorporated prior to the point when the A1 forms were filed; the parties were represented by counsel and if the Association was the true appellant it would have been added to the A1 form; if John Campion and Robert Smith were merely bringing the appeals on behalf of the Association, there would have been no reason for two appeals to be filed; the notice of hearing contained only the names John Campion and Robert Smith; and, there was no request to amend the parties at, before, or after the hearing, with the exception of the request filed after the receipt of the costs motion.
(2) Because the Association had not been a party before the Board, the attempt to now change the name of the appellants went beyond a “technical error” or “minor error” and did not fall within the Member’s power to correct under Rule 108.
(3) Since the change requested would be a substantive change in the decision, Rule 109 applied and the Board was required to treat the request as a request for a review under s. 43 of the Ontario Municipal Board Act,[^3] (“the Act”) which was a jurisdiction vested solely in the Chair of the OMB.
[14] The Member then summarized his decision as follows:
The Board dismisses the request for a minor change under Rule 108 because it is not minor and refuses to process the change under Rule 109 because the request is to the wrong party – the Member and not the Chair and the request was not filed within the proper time limits.
[15] In the result, the appellants’ motion was dismissed.
Divisional Court Application – August 22, 2012
[16] On August 22, 2012, the day after the Member’s decision on parties was released, an application was brought before a three-member panel of the Divisional Court with the Bangor Ratepayers Association Inc. (sic) as the named applicant (Action 178/12) and the Developer, the Town and the OMB as respondents. The same three Faskens lawyers appeared as counsel for the Association as had appeared at the OMB proceedings. The application sought to prohibit or enjoin the OMB from conducting a hearing into whether “the applicant or others” should be required to pay costs of the original hearing before the Member.
[17] The respondents objected to the standing of the Association to bring the application. Nordheimer J. delivered the reasons of the Court orally at the conclusion of the hearing. On this issue, he held, at para. 1:
While there is an issue raised as to whether the applicant has standing to bring this application, in light of the conclusion we have reached on prematurity, we do not consider it necessary to address that matter of contention.
[18] The applicant argued before the Divisional Court that because there had been no transcript of the original hearing before the Member, it could not receive a fair hearing on a costs motion where a party is said to have acted improperly. Further, the applicant alleged that the Member had demonstrated bias by refusing to allow the appellant to start recording part way through the hearing or to consider notes made by an English lawyer attending the hearing along with the Faskens group.
[19] The Divisional Court was not persuaded that there was merit to the natural justice or bias arguments. The Court ruled that the matter was premature and that the costs motion should proceed first before the OMB in order to avoid a fragmented process that increased the costs for all parties. Accordingly, the application was dismissed. The Association was ordered to pay costs of $10,000 to the Developer and $3000 to the Town.
Decision of the Chair on the Request for Review – October 12, 2012
[20] On September 11, 2012, Mr. DiDomenico of Faskens wrote to the Chair of the OMB requesting a review of the Member’s August 21, 2012 decision pursuant to s. 43 of the Act. Mr. DiDomenico. The requestor was stated to be “Robert Smith, representing and on behalf of the Bangor Ratepayers Association Inc.” Essentially, the request made similar arguments as before the Member to the effect that the Ratepayers Association was the proper party, and failing that, the additional 21 individuals drawn from the Schedule to Mr. Smith’s A1 Form should be added as parties. Mr. DiDomenico also took the position in the request for review that the Divisional Court, in its decision dated August 22, 2012, had accepted the Ratepayers Association as a proper party.
[21] Lynda Tanaka, Chair of the OMB, dismissed the request to review for reasons delivered on October 12, 2012. The Chair first considered whether the request was properly before her as it was filed by “Robert Smith representing and on behalf of the Association” and a request for review is only permitted to be filed by a party to the proceeding. She elected to deal with the request on the basis that Robert Smith was a party in his personal capacity and therefore had status to request the review. The Chair then ruled that the Member had no jurisdiction to hear a request for review under s. 43 and that such reviews could only be heard by the Chair, upholding the Member’s ruling on that point. On the argument that the OMB was bound by the Divisional Court decision as to the Association’s status, the Chair held that the Divisional Court had declined to deal with the status of the Association and that nothing determined by the Divisional Court could be said to be “new evidence” on the question of party status for the Association. Finally, she found no basis to interfere with the Member’s decision as to the proper parties to the OMB proceeding. In this regard, she noted that there was no A1 Appeal form identifying the Association as a party seeking to appeal to the OMB. Further, she found that the only persons who executed appeal forms were Robert Smith and John Campion. Although Robert Smith attached a form listing 21 persons he purported to act for, none of them had executed the appeal form, which the Chair held would be necessary to confirm that other persons might have been knowing or willing participants.
D. THIS APPLICATION FOR LEAVE TO APPEAL
The Test for Leave to Appeal
[22] An appeal lies from the OMB to the Divisional Court, with leave of the Divisional Court, but only on a question of law.
[23] The test for leave to appeal is governed by Rule 62.02(4) of the Rules of Civil Procedure. In this case, the moving party relies on Rule 62.02(4)(b), which requires the moving party to satisfy a two-part test:
(1) good reason to doubt the correctness of the decision; and
(2) the appeal involves a matter of public importance going beyond the interest of the parties involved.
[24] It may be the case that the intersection of the “reason to doubt correctness” language of Rule 62.02 and the reasonableness standard of review for questions of law within the particular expertise of a tribunal (as articulated in cases such as Dunsmuir v. New Brunswick) results in changing this test to a consideration of whether there is reason to doubt the reasonableness of the decisions of the Member and Chair.[^4] However, in light of the conclusions I have reached in this case, it is not necessary for me to resolve that issue, and I decline to do so.
Standing
[25] There is a preliminary question as to who is the moving party before me, and whether that party has standing. Throughout the proceeding at the OMB and before this Court, there has been a lack of consistency by counsel in naming the party seeking relief. The OMB has consistently named the appellants before it as Robert Smith and John Campion. However, Mr. Smith is described in various ways elsewhere in applications brought by Faskens.
In September, 2011, Mr. Smith executed an A1 form (drafted by Mr. Campion) which names Robert Smith as the appellant and then states “and on behalf of the persons named in Schedule B.”
In written submissions filed by Faskens on the original OMB application before the Member on August 2, 2011, the style of cause recites “IN THE MATTER OF THE BANGOR LODGE RATEPAYERS ASSOCIATION REPRESENTED BY ROBERT SMITH FOR HIMSELF AND 32 (sic) OTHER COTTAGE OWNERS AND RATEPAYERS AND JOHN A. CAMPION FOR HIMSELF” and then names the appellant as “Bangor Lodge Ratepayers Association, Inc.”
After the Member’s original decision dated November 24, 2011, Faskens filed a notice of motion seeking leave to appeal from the Divisional Court (the notice being dated December 9, 2011) naming as the moving party “Robert Smith in his on (sic) behalf and on behalf of the Bangor Ratepayers Association Inc.”
The Divisional Court application dated August 22, 2012 seeking to prohibit the OMB from determining costs was brought in the name of “Bangor Ratepayers Association Inc.”
On the request for review at the OMB brought by Faskens in September 2012, the requestor was described as “Robert Smith, representing and on behalf of Bangor Ratepayers Association Inc.”
The amended notice of motion for leave to appeal which is now before me names as the moving party “Robert Smith representing and on behalf of the Bangor Ratepayers Association Inc.”
[26] While the style of cause is confusing, it seems to me that at a minimum Robert Smith is a moving party. Otherwise, there would be no reason to name him at all, since the Bangor Ratepayers’ Association is a legal entity (albeit incorrectly named in the proceeding, as in many of the pleadings, as “Bangor Ratepayers Association Inc”). Robert Smith was named as a party appellant by the OMB in the proceeding before it, was the subject of a request for costs by the respondents, and was an applicant before both the Member and the Chair on the motion and request to review dealing with the parties issue (both of which are the subject of this leave to appeal application). Accordingly, I find he has standing to seek leave to appeal.
[27] It may also be the case that the Bangor Ratepayers’ Association is a proper party with standing. Since the only relevance with respect to having a second applicant is on the issue of costs, which will be a highly contentious issue, I will defer making a final decision on the standing of the Association until the next stage of this proceeding.
[28] For present purposes, it is sufficient that there is one proper party with standing, enabling the substantive issues raised by the motion to be addressed.
Relevant Legislative Provisions
[29] The moving party’s position as to an error of law is based on the inter-connection between OMB Rules 108 and 109 and on s. 43 of the Act.
[30] Those provisions state:
Rule 108: Correcting Minor Errors The Board may at any time and without prior notice to the parties correct a technical or typographical error, error in calculation or similar minor error made in a decision or order. There is no fee if a party requests this type of correction.
Rule 109: Processing Request as a Review Request If a party requests a correction or clarification that the Board finds is a request for a substantive change in the decision or order, the Board shall treat it as a request for review under section 43 of the Ontario Municipal Board Act.
s. 43 of the Act: The Board may rehear any application before deciding it or may review, rescind, change, alter or vary any decision, approval or order made by it.
[31] It is also relevant to take into account Rules 110 and 111, which state:
Rule 110: Board’s Powers on Review When exercising its powers pursuant to Section 43 of the Ontario Municipal Board Act and s. 21(2) of the Statutory Powers Procedure Act, Rules 110-119 shall govern.
Rule 111: Request for a Review of Board Decision The Chair shall consider a person’s request for a review of a decision, approval, or order if the person files the information sent out in Rule 112. A request for review does not automatically stay the effect of the original decision, approval or order unless the Chair so orders.
The Position of the Moving Party
[32] In the moving party’s factum, the following positions were set out:
(a) Both the Member and the Chair erred in holding that the Member had no jurisdiction under Rule 109, which is an error in jurisdiction and an unlawful fetter on the discretion of the Member.
(b) The Member erred by ignoring or miscomprehending the evidence so completely as to render his decision a mistake in law and a violation of natural justice because of the inadequacy of his reasons.
(c) The Member erred by failing to correct his original decision and list the Association as the sole appellant, or alternatively by failing to add the 21 additional individuals listed in Schedule B to the A1 From filed by Robert Smith.
(d) The Chair erred in declining to review the Member’s decision as to parties.
[33] The moving party took the position that errors of jurisdiction are always matters of public importance. Counsel also argued that the narrow interpretation of Rule 109 would have a negative impact on any other person seeking to rely upon the Rule before the Board, would create uncertainty about the meaning and operation of the Board’s Rules, and would impact future litigants who would not have the benefit of the Board’s complete array of remedies and powers in light of the Board having fettered its discretion and limited its jurisdiction.
[34] In oral argument Mr. Campion conceded that the Member’s finding that the change sought was not a minor correction under Rule 108 was a question of fact and that leave to appeal from that aspect of the decision was not sought. The main focus in oral argument was on the interpretation issue regarding Rule 109 (item (a) above). Nevertheless, a substantial portion of the argument related to factual matters, many of the grounds of appeal listed in the factum relate to factual issues, and those grounds were never withdrawn. Therefore, I will deal with all of the grounds set out in the factum and in oral argument.
The Member and the Board Correctly Interpreted the Applicable Rules
[35] It is clear that Rule 108 relates only to minor issues such as errors in calculation, typographical errors, and oversights of that nature. There can be no basis for interfering with the Member’s determination that deciding who are the proper parties to the proceeding is not such a minor slip that the s. 108 jurisdiction is invoked. I did not take the moving party as seriously advancing that position in any event.
[36] The moving party’s main focus was on Rule 109 and the contention that the Member himself was required to conduct the review under Rule 109 upon the determination that what was requested under Rule 108 was actually a request for a substantive change.
[37] Rule 109 uses mandatory language. It directs the Board to treat the request “as a request for a review under s. 43.” However, Rule 109 cannot be looked at in isolation. It is followed immediately by Rule 110, which states that Rules 111-119 govern the exercise of the Board’s powers under s. 43 of the Act. Rule 111 directs that the review shall be considered by the Chair.
[38] In my view, it is clear from this language that any request for review is governed by Rules 111-119 and that all requests for review go before the Chair of the OMB, not the individual Member who has made the very decision under review. There is no separate scheme for requests that have as their genesis an inappropriate application under Rule 108 for the correction of something that is not minor in nature. If the moving party’s interpretation was correct, every party could require a Board decision maker to review his or her own decision by submitting a Rule 108 motion, and then taking the position that if it was not a minor error, the Member was nevertheless required to review the decision under Rule 109. This makes no sense logically, is inconsistent with the scheme of the Rules, and inconsistent with the wording of Rules 109-111.
[39] It may well be the case that a standard of reasonableness applies to the Board’s interpretation of its own Rules. However, regardless of which standard is applied, reasonableness or correctness, I find this ground of appeal to be without merit. In my view, both the Member and the Chair correctly concluded that the s. 43 review jurisdiction was properly that of the Chair, not the Member and correctly interpreted Rule 109 accordingly.
The Board Properly Considered the Evidence and Delivered Adequate Reasons
[40] The Supreme Court of Canada held in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)[^5] that the adequacy of reasons is not a stand-alone ground of judicial review and that it is not necessary for the reasons of a tribunal to refer to every argument and every piece of evidence before it. It is sufficient if the reasons provide an adequate basis for determining the reasonableness of the decision under review. The Court held, at paras. 14 and 16:
Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §§12:5330 and 12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47).
Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973 191 (SCC), [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
[emphasis added]
[41] I do not agree with the moving party that the Member in this case failed to address material arguments or evidence or failed to provide adequate reasons. The Member’s reasons for coming to the conclusion that the proper appellants named in the appeal were John Campion and Robert Smith are set out in some detail at pages 3-4 of his decision. It is clear from his reasons that the only A1 forms filed were from John Campion and Robert Smith and that the Association, in particular, did not file an appeal and is not mentioned in the two appeal requests that were filed. The Member’s reasons are transparent and intelligible, and demonstrate the basis upon which he reached the conclusion he did. Although not every single argument advanced by counsel was specifically noted, there is no requirement to do so and it is apparent from the reasons that the Member was alive to all of the issues. The Member did not misapprehend or disregard any material evidence. There was no reason to doubt the correctness of any issue of law in this regard, and no breach of natural justice.
[42] I would make the same point with respect to the reasons given by the Chair for rejecting the request for review. In addition, the Chair noted that the 21 individuals listed on Schedule B whom the appellants now sought to add, had never signed an appeal form, as is required by the Board. Only two individuals signed appeal forms: John Campion and Robert Smith. That is a clear and reasonable basis for concluding that these two individuals were the only proper parties to the appeal. I see no legal issue arising from this, no error of law, and no breach of natural justice.
[43] Further, and in any event, there is nothing about this issue that goes beyond the interests of the particular parties to this litigation. This is not an issue of broad public importance that would meet the second branch of the test for leave to appeal. Accordingly, this ground upon which leave to appeal is sought also fails.
Merits of the Decisions on Parties
[44] I have considerable difficulty seeing how grounds (c) and (d) listed in paragraph 32 above can properly be characterized as issues of law. However, since so much of the argument was directed to these issues, I will deal with them.
[45] Mr. Campion submitted that the Divisional Court decision dated August 22, 2012 was a decision of a three-member panel bearing directly on the issue of the status of the Association before the OMB and was binding upon me. He further submitted that the Divisional Court was invited by the respondents to dismiss the application before it on the grounds that the Association was not a party to the OMB decision and therefore had no standing to bring the application. He then reasoned that because the Divisional Court dismissed the application on its merits and awarded costs against the Association, it had de facto recognized the Association as a party before the Divisional Court, and therefore before the OMB.
[46] There is no merit whatsoever to this argument. Firstly, any person who brings an unsuccessful application to the Divisional Court may be liable in costs to the responding parties. A finding that the unsuccessful applicant must pay such costs has nothing to do with whether or not that applicant had the proper standing to bring the application. Indeed, the fact that a person brought an application without proper standing can be a reason to award costs against that person, in and of itself.
[47] Secondly, even if the Divisional Court had concluded (which it did not) that the Association had standing to bring the application in the Divisional Court, that does not mean that the Association was a proper party before the OMB. If the Association had been a party before the OMB, it would have defined rights to seek relief in this Court in respect of that decision. However, the reverse proposition is not true. Standing could be granted in the Divisional Court completely independently of whether party status had been granted by the Board. Completely different considerations apply.
[48] Thirdly, and most importantly, the Divisional Court was explicit and careful in its reasons to state that it was not making any finding on the issue of standing. The Court found that regardless of whether the Association did or did not have standing, the application was without merit and premature. The Reasons could not have been clearer on this point. Nordheimer J. stated in paragraph 1 of the Reasons, “While there is an issue raised as to whether the applicant has standing to bring this application, in light of the conclusion we have reached on prematurity, we do not consider it necessary to address that matter of contention.” There is no basis in law for finding that the effect of this decision is the opposite of what the Court actually said.
[49] Mr. Campion also argued that the responding parties have conceded that the wrong appellants were named by the OMB and cannot now say otherwise. First of all, as a factual matter, the respondents have not conceded any such thing. In any event, it is not the role of the respondents to determine who are the proper parties. That is a decision for the OMB; and the OMB, through its Member and its Chair on review, has made its decision. Mr. Campion dealt at some length with how representatives of the Town characterized the appellants in materials the Town sent to the OMB commencing the OMB proceedings. Again, that is not what determines who the proper parties are. The Member and the Chair made their decision as to party status based upon who filed and signed the required appellant forms. Only Mr. Campion and Mr. Smith signed and filed A1 appeal forms. Hence, the OMB’s designation of them as the only two appellants before it.
[50] Mr. Campion referred to the fact that Marie Poirier, the expert witness he called at the OMB hearing, was actually retained by the Association and pointed to documents in the Record to substantiate that. It is irrelevant who retained Ms Poirier and who paid her fee. Her arrangements with the Association and/or with Faskens cannot confer status on a party before the OMB.
[51] Mr. Campion also made reference to considerable material in the Record filed by Faskens before the OMB which, on the cover page, describes the Association as the appellant. Again, filing a document in the middle of the hearing that says the Association is a party, does not make the Association a party. The Member was not bound to accept Faskens’ description as to who is the proper appellant. The Board is governed by legislation and Rules as to how a person can become a party before the Board. It correctly applied those principles. The heading a lawyer puts on written submission does not create or alter party status.
[52] Faskens filed in the Record before me the affidavit of Sebastian Purnell, a lawyer called to the Bar of England and Wales in 2010. He was in Canada on a scholarship in the summer of 2011 and was supervised during that time by Mr. Campion and other lawyers at Faskens. Mr. Purnell attended all of the OMB hearings and took notes. In his affidavit, which was sworn on March 22, 2012, Mr. Purnell states at paragraph 22:
The appeal to the OMB at the hearing was made by the Bangor Ratepayers Association, Inc. The written submissions we filed on behalf of that corporation, as indicated by Exhibit “B”, and the expert witness Marie Poirier, was retained and gave her evidence on behalf of the Bangor Ratepayers Association, Inc., as indicated in Exhibit “C”. No objection was taken by anyone, including the OMB. No submissions were made on behalf of the personal ratepayers.
[53] Mr. Campion argued before me that since the respondents did not choose to cross-examine Mr. Purnell on his affidavit, the matters to which he deposed are now uncontroverted and conclusively proven. This is wrong. The affidavit was before the Member on the parties motion before him. He was by no means bound to accept Mr. Purnell’s opinion as to which party was the real appellant before the OMB, nor was he obliged to attach any significance to the headings on submissions or the retainer of Ms Poirier. Mr. Purnell’s affidavit establishes nothing. These were matters for the Board to decide, and the Board did decide them.
[54] Quite apart from the status of Robert Smith or the Association, Mr. Campion took the position before me that he personally was not a party before the OMB. He stated in his oral submissions that his legal counsel did not attend the hearing and did not make submissions on his behalf. He further stated that although he made submissions before the Board, they were advanced strictly on behalf of the Association. I will leave aside for the moment the inadvisability of counsel making such an assertion in the course of oral argument from the counsel table and merely make the following observations:
Mr. Campion filed an Appellant A1 form in his own name, which he personally signed, and paid the required fee.
Mr. Campion’s A1 form indicated that his counsel was Faskens. The actual lawyer from Faskens shown on the form was Mr. Smiley, who was not present at the hearing, but three other Faskens lawyers were there, including Mr. Campion himself (four if you count Mr. Purnell).
Mr. Campion never withdrew his appeal, never advised the Member while the hearing was ongoing that he would no longer be a party in his personal capacity, and never objected to the notices from the OMB that listed him as an appellant in his own right.
It is artificial for Mr. Campion to say that no submissions were made on his behalf. He had the same interest as the other cottage owners on whose behalf he, and other lawyers from his firm, purported to be making submissions.
The written submissions which Mr. Campion filed and upon which he relies as demonstrating that the Association was the true appellant is headed by a style of cause that includes “And in the matter of: The Bangor Ratepayers Association, represented by Robert Smith for himself and 32 other cottage owners and area ratepayers and John Campion for himself.” (emphasis added)
In the course of re-examining John Mercer (the president of the Bangor Ratepayers’ Association called to testify before me on a conflict of interest issue), Mr. Campion put to Mr. Mercer a memorandum dated August 24, 2012 written by Mr. Campion and sent by email to Mr. Mercer and the members of the Association. This would have been after receipt of the Member’s decision as to parties (which was dated August 21, 2012) and the Divisional Court decision dismissing the application for an injunction (dated August 22, 2012). In the memorandum, Mr. Campion wrote, “You have asked for a report on the work that Fasken Martineau has done on behalf of the Bangor Ratepayers, Bangor Ratepayers Association Inc., and certain ratepayers who signed the appeal notices in the matters appealed to the Ontario Municipal Board which include Robert Smith, . . . [listing the names on Schedule B]. I note that I am a party as well in my personal capacity.” (emphasis added)
[55] In short, all of the evidence is consistent with Mr. Campion being an appellant in his personal capacity and inconsistent with any other conclusion. Mr. Campion’s protestations to the contrary are not evidence, and are inconsistent with the documentary record, including documents he authored himself. I see no reason to doubt the correctness of the Member’s decision reaching the conclusion that Mr. Campion is an appellant. Further, I fail to see how a question of law is raised, which is a precondition to any right of appeal. Finally, even if there was a legal issue on this point, this is strictly a matter of personal interest to Mr. Campion and the respondents who seek costs against him, and does not raise an issue of public importance justifying leave to appeal.
[56] Section 34(19) of the Planning Act dictates who may appeal to the OMB from a municipal by-law amendment and the manner of filing an appeal. The appropriate form must be filed, along with the prescribed fee. The only persons who can appeal such a decision are: (1) the applicant before the municipality; (2) the Minister; or (3) “a person or public body who, before the by-law was passed, made oral submissions at a public meeting or written submissions to the council.”[^6] In this case, Mr. Smith and Mr. Campion were among the persons who made oral and/or written submissions to the Town, as were some (but not all) of the 21 persons listed on Schedule B to Mr. Smith’s A1 appeal form. The Association did not make any such submissions.
[57] The OMB’s Form A1 is required to be signed by an appellant. Mr. Smith and Mr. Campion signed their A1 forms. The individuals listed in the schedule to Mr. Smith’s A1 form did not. An incorporated association is entitled to appear in its own right, provided it otherwise qualifies for appellant status. The Association in this case is not listed on any appeal notice, and since it did not appear or make any submissions before the Town in its own right, it would not have had status to file an appeal under s. 34(19) in any event.
[58] The OMB has a discretion as to whether to add parties where there are reasonable grounds to do so. However, in this case, no request was made to add the Association as a party until after hearing was complete and the Member’s decision on the merits had been delivered.
[59] I can see no legal error by the Member, or by the Chair on review, in refusing to add the Association or the additional 21 individuals after the fact. I have no reason to doubt the reasonableness, or indeed correctness, of their decisions. Essentially, this issue was decided based on factual findings and the exercise of discretion. There is no basis for an appeal to this Court.
Conclusion
[60] For the foregoing reasons, this motion for leave to appeal is dismissed.
E. CONFLICT OF INTEREST and COSTS
[61] Normally, costs follow the event. An unsuccessful moving party will usually be ordered to pay costs to the successful respondents. In this case, however, there are complications as a result of the conflict of interest issue and the request by the respondents that costs be payable by Mr. Campion and Mr. Smith personally.
[62] In their factums, both the Town (expressly) and the Developer (by inference) raised an issue with respect to Mr. Campion being in a conflict of interest in this matter. I raised this point with Mr. Campion at the outset of the hearing before me. Mr. Campion expressed great indignation, accusing counsel for the Town of impropriety in trying to have Mr. Campion removed as counsel of record so that the ratepayers would not have the counsel of their choice. He also asserted that the “trumped-up” conflict issue had been raised in an attempt to divert the court’s attention from the real issues in this matter. Mr. Campion submitted that I had no jurisdiction to deal with the conflict of interest issue in the absence of a motion to remove counsel of record.
[63] Counsel for the respondents acknowledged that it would be permissible for Mr. Campion to act for these clients provided that the nature of his conflict had been disclosed, the clients had been given the opportunity to obtain independent legal advice, and had then instructed him to proceed. Further, the respondents advised that they did not seek to have Mr. Campion removed as counsel, but merely wished to raise the conflict issue at the end of the motion as relevant to who should pay their costs if I dismissed the motion for leave to appeal. They took the position that the Association was a “straw man,” that the real moving parties were Robert Smith and John Campion, and that those two individuals should be responsible for costs.
[64] Mr. Campion had several members of the Association with him in the courtroom listening to the argument, including the Association’s president. He maintained that he was aware of the Rules of Professional Conduct in relation to a conflict of interest and had complied with them.
[65] I do not agree with the assertion that the court has no jurisdiction to deal with an issue of an apparent conflict of interest involving counsel appearing before it, regardless of the position taken by the opposing parties. This is an issue going to the integrity of the judicial process and the court always has jurisdiction to intervene in such circumstances.
[66] However, given the presence of the clients, Mr. Campion’s assurances, and the position taken by the respondents, I advised counsel that I would reserve on the issue of the impact, if any, of any conflict of interest until the conclusion of the hearing. At this point, Mr. Campion, who had previously maintained that I had no jurisdiction at all to raise the issue, now took the position that he was entitled to a decision on the point immediately. I declined to do so, and the application proceeded on its merits.
[67] Near the end of his submissions, Mr. Campion again raised the conflict issue and stated that he wished to clear up any misunderstanding on the matter. He proposed an adjournment so that he could file an affidavit from Mr. Mercer, the president of the Association. Alternatively, he suggested calling viva voce evidence from Mr. Mercer before me that day. I elected to accept his second suggestion in light of the substantial delay I expected would accompany the first option and the delay that has already been incurred since the Member’s original decision in November 2011. The clients’ position had potential relevance to the respondents request for costs against Mr. Campion and Mr. Smith personally. Therefore, I determined that I should not determine costs without giving Mr. Campion the opportunity to put this evidence before the court.
[68] It was agreed that solicitor and client privilege was not waived. Mr. Mercer would testify only on the limited issue of when disclosure was made of the conflict, whether independent legal advice was received, and whether the clients had elected to proceed with the parties motion before the Member and this leave to appeal motion, notwithstanding the conflict.
[69] The conflict Mr. Campion finds himself in is readily apparent. He was a personal appellant before the OMB. Robert Smith was also a personal appellant, based on an Appellant A1 Form that Mr. Campion prepared and filed on his behalf. The Association was not a named party before the OMB. Mr. Campion took no steps on behalf of the Association or the 21 additional individuals to add or substitute them as parties after receipt of the Notice of Hearing from the Board (which named Mr. Campion and Mr. Smith as the only two appellants) or after receipt of the Member’s reasons following the hearing (which also showed only these same two individual appellants). It was only after receipt of a request for $225,000 in costs payable by Mr. Campion and Mr. Smith that Mr. Campion now sought to have the Association substituted as the appellant in place of him and Mr. Smith. There is an obvious advantage to Mr. Campion in having himself removed as a party in the face of such an onerous costs exposure. If the Association is without assets, this might not have an adverse impact on the Association, although obviously it is not desirable from the perspective of the respondents. However, Mr. Campion, in the alternative, sought to have the 21 individuals from Schedule B added as parties. If Mr. Campion remains as a party and is liable for costs, it would clearly be to his advantage to have the Association and/or the additional 21 individuals on Schedule B added as parties to share such a liability. However, it is hard to see any advantage to the individuals by being added to the proceeding at a point where they might now be liable for costs, when they clearly were not exposed to personal liability earlier. This puts Mr. Campion in a position where his personal interests appear to be contrary to those of his clients. Further, if Mr. Campion bears any of the responsibility for putting the Association in a position where it is not an appellant, but its individuals members are, this may be a further source of conflict between Mr. Campion and some or all of those individuals.
[70] That said, a conflict of interest between legal counsel and a client does not mean that a client, knowing of the conflict and of its impact, could not waive it and still want that counsel to proceed. As long as the client is fully informed, this is not necessarily a problem. That is what I fully expected to be the situation until Mr. Mercer testified before me.
[71] Under cross-examination, Mr. Mercer stated his understanding that Robert Smith’s name was only on the appeal form as a representative of the Bangor Ratepayers Association and not as an individual. He further testified that although he wanted the Association to be added as a named party in the OMB proceedings, he did not want to be a party in his personal capacity. As he put it, “It’s why we incorporated an association.” He did not understand that there had been a request to add him as a party in his personal capacity so that he could be liable in costs. Mr. Mercer further stated that it was his belief that none of the 22 people listed on Schedule B had any intention of exposing themselves to personal liability for costs before the OMB.
[72] Because Mr. Campion has been unsuccessful in obtaining leave to appeal from the OMB decisions, there has been no change to the designation of parties made by the OMB. It follows that none of the individuals (except potentially Robert Smith) have any exposure to costs either before the OMB or of the motion before me. Robert Smith, however, may be in a different position.
[73] The respondents submit that the Association is not the true moving party on the motion. Rather, the Association seeks costs payable by Mr. Smith (on the grounds that he is both a named and “real” moving party) and against Mr. Campion (on the grounds that although he is not a named moving party, he is the “real” moving party). Costs are sought against Mr. Campion in his personal capacity as a litigant, and not as a solicitor.
[74] In light of the testimony of Mr. Mercer, I have concerns about the potential conflict between the position of Mr. Campion and Mr. Smith. Although counsel for both respondents made it clear in their factums that they would be seeking costs of the leave motion from Mr. Campion and Mr. Smith as the real litigants behind the motion, Mr. Campion took no steps to retain other counsel for the motion, nor to retain counsel for himself. Instead, he came to the motion presumably prepared to argue the issue himself, or to have one of his colleagues from his firm argue it. At times during the argument of the motion, Mr. Campion stepped outside the courtroom and asked his colleague Mr. DiDomenico to address certain conflict issues. That does not resolve the conflict issue. I considered it inappropriate, and advised counsel of that. It is the firm that has acted for these parties throughout. If Mr. Campion has a conflict, so too does the firm of which he is a partner.
[75] I reserved the issue of costs, advising Mr. DiDomenico that the conflict issue should be reviewed within his firm and the clients should be fully advised. Subsequent to the hearing date, I have received correspondence from two separate law firms – one representing Mr. Campion, Faskens, and the other law Faskens lawyers involved, and the other representing Robert Smith. Both seek an opportunity to be heard with respect to costs, which I think is appropriate.
[76] Accordingly, I am adjourning the costs aspect of this matter to be heard before me on March 28, 2012. If counsel are not able to agree among them on a schedule for the exchange of written material, I can be contacted through the Divisional Court office.
MOLLOY J.
Released: February 8, 2013
CITATION: Smith v. Corporation of the Town of Bracebridge, 2013 ONSC 891
DIVISIONAL COURT FILE NO.: 425/12
DATE: 20130208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ROBERT SMITH REPRESENTING AND ON BEHALF OF THE BANGOR RATEPAYERS ASSOCIATION INC.
Moving Party
– and –
THE CORPORATION OF THE TOWN OF BRACEBRIDGE and 1712216 ONTARIO INC.
Responding Parties
REASONS FOR DECISION
MOLLOY J.
Released: February 8, 2013
[^1]: Although many of the documents in this matter, and also the style of cause, refer to “Bangor Ratepayers Association Inc.” and some to “Bangor Lodge Ratepayers”, the Articles of Incorporation were filed in the record before me and the president of the association also testified under oath that this is a mistake and that the correct name is “Bangor Ratepayers’ Association.”
[^2]: Rule 103, Ontario Municipal Board Rules of Practice and Procedure, (“the OMB Rules”) made under s. 91 of the Ontario Municipal Board Act and s. 25.1 of the Statutory Powers and Procedure Act.
[^3]: Ontario Municipal Board Act, R.S.O. 1990, c. O.28
[^4]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Toronto (City) v. Dorsay Investments, 2010 ONSC 3212 (Div.Ct.) at para. 18.
[^5]: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708
[^6]: Planning Act, R.S.O. 1990, c. P.13, s. 34(19).