Court File and Parties
CITATION: Town of Oakville v. Tomulka et al, 2014 ONSC 1825
DIVISIONAL COURT FILE NO.: DC-13-19-00
DATE: 2014-03-20
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEENEY, PARFETT and VARPIO, J.J.
BETWEEN:
Town of Oakville Appellant
– and –
Richard Frederick Tomulka and Sheridan Lane Holdings Inc. Respondents
COUNSEL:
R. Andrew Biggart, for the Appellant
No One Appearing
HEARD: March 18, 2014
Endorsement by the Court
[1] This Application, brought by the Town of Oakville, seeks Judicial Review of a decision made by the Ontario Municipal Board (“OMB”) wherein the Board permitted a temporary change to the use of two parcels of land located in Oakville. The lands were zoned for commercial use and the Board permitted the lands to be farmed. This change of use provided the owners of the land with a significant tax benefit. This temporary change in use expired in February 2014.
[2] The Town of Oakville seeks Judicial Review of the OMB decision because it states that there are broad implications to this non-binding precedent that will affect a number of similar properties as well as the Town of Oakville’s tax base.
[3] The Respondents failed to show up for the Judicial Review hearing, which is unsurprising since the temporary change expired approximately one month ago and, as such, the Respondents’ position is unaffected by the instant proceedings.
[4] We decline to exercise our discretion to hear this matter since we are of the opinion that the matter is moot. The Supreme Court in Borowski v. Attorney General for Canada, 1989 123 (SCC), [1989] 1 S.C.R. 342, at p. 353, defined mootness as follows:
Mootness
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.
The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.
[5] Since the passage of time is such that the subject-matter of this case is unaffected by any decision we could provide, in our view, the matter is moot. The Court in Borowski dealt with a similar situation where the passage of time rendered the matter moot for the actual litigants and decided the case because it had a “live controversy”. It is important to note that the Court in Borowski had the benefit of considerable argument from numerous interveners.
[6] We are unwilling to make a decision that the Applicant advises us would have broad legal and policy implications in the absence of submissions from potentially affected landowners or other interested parties. In addition, in this case, the two parcels of land appear to have different factual underpinnings such that submissions from the landowners would have undoubtedly helped the Court craft an appropriate disposition. Without those submissions, the Court would receive a skewed view of the proceedings which could conceivably affect the result. Procedural fairness thus demands that we not exercise our discretion.
[7] The Town of Oakville has indicated, and we accept, that the OMB’s decision will have a broad effect given the number of potentially affected properties. We are confident that a future decision of the OMB could easily provide the Town with the opportunity to seek Judicial Review in a situation where both sides can advance arguments before the Court.
T. Heeney R.S.J.
J. Parfett J.
M. Varpio J.
Released: March 20, 2014
CITATION: Town of Oakville v. Tomulka et al, 2014 ONSC 1825
DIVISIONAL COURT FILE NO.: DC-13-19-00
DATE: 2014-03-20
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEENEY, PARFETT and VARPIO, J.J.
BETWEEN:
Town of Oakville Appellant
-and-
Richard Frederick Tomulka and Sheridan Lane Holdings Inc. Respondent
ENDORSEMENT
Released: March 20, 2014