Court File and Parties
CITATION: Humanics Universal Inc. v. City of (Ottawa), 2014 ONSC 2195
DIVISIONAL COURT FILE NO.: 12-DC-1877
DATE: 2014/04/09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO ACJ, WHITTEN AND THOMAS JJ.
BETWEEN:
Humanics Universal Inc and Dr. Ranjit Perera Applicants (Moving Parties)
– and –
City of Ottawa and The Ontario Municipal Board Respondents
COUNSEL:
Yavar Hameed, for the Applicants (Moving Parties), Humanics Universal Inc.
Matthieu Charron, for the Respondent, City of Ottawa
HEARD: April 7, 2014
REASONS FOR JUDGMENT
MARROCCO ACJ
[1] The applicants want to subdivide a parcel of land.
[2] They applied to the City of Ottawa for a plan of subdivision. The City of Ottawa established conditions for draft approval of the plan of subdivision. The applicants appealed many of the draft conditions to the Ontario Municipal Board.
[3] The applicants argued that some of the conditions for draft approval contravened their Charter Rights. The City brought a motion to strike the Charter Issues. The motion was granted on February 6, 2012.
[4] The applicants did not appeal this decision. Instead they waited nine months and then moved before the Ontario Municipal Board to have the decision striking their Charter Issues reconsidered. The Chair of the Ontario Municipal Board refused to vary the decision.
[5] The applicants moved for leave to appeal that decision to the Divisional Court. That leave application was denied by Justice O’Neill. The applicants then sought leave to appeal Justice O’Neill’s decision to the Court of Appeal. The Court of Appeal ruled that the proper course for the applicants was a motion to vary Justice O’Neill’s decision before a three-member Panel of the Divisional Court. It is that matter which we are hearing.
[6] The test for setting aside a refusal to grant leave was decided in the Universal A.M.-Canada Ltd. v. Tornorth Holdings Ltd., (2003), 177 O.A.C. 297. The general principle of law is that there is no right to appeal from a decision refusing leave to appeal. Section 21 (5) of the Courts of Justice Act allows a panel of three members of the Divisional Court on motion to set aside or vary the decision of a single judge to do so. A motion such as that can only be granted in the rarest of circumstances and only when the judge refusing to grant leave has declined jurisdiction.
[7] The Chair of the Board gave reasons for her decision refusing to vary the decision of Board member Denhez issued February 6, 2012. The Board’s rules provide that it will not consider a request to reconsider if it is filed 30 days after the date of the Board’s decision. This request was filed nine months following the Board’s decision.
[8] The Chair decided that it was not in the public’s interest to review or reopen the decision. The Chair relied on the fact that the parties had reconciled most of their differences about the conditions attached to the approval of the applicants request to subdivide the property. The Chair also decided that the request to reopen was a disguised attempt to reargue the matter.
[9] The issue which the applicants were attempting to re-argue was the Board’s decision to impose a 6 m access allowance within the slope setback. This decision was arrived at after the evidence of expert witnesses was heard. The decision to accept the 6 m setback appeared reasonable to the Chair because it was based on geotechnical evidence. The Chair concluded that the Board member was in the best position to assess the setback after hearing from the public authorities and the expert witnesses. In addition, the slope setback decision recognized the importance of public safety.
[10] The Chair’s decision was within the reasonable range of outcomes that could be expected from a request to reconsider a decision nine months after it was made and after parties to the proceeding acted upon the decision.
[11] Justice O’Neill concluded that the Chair’s emphasis on the importance of finality of decision-making in circumstances where the parties have acted upon the decision under review was reasonable in the circumstances. Justice O’Neill found that the Chair carefully analyzed the rules of procedure requiring requests be filed within 30 days and that her analysis of the rules was both reasonable and correct.
[12] In coming to the decision that he did, it is clear that Justice O’Neill did not decline jurisdiction. Justice O’Neill also gave the applicants full opportunity to advance their position. His Honour exercised his discretion based upon relevant considerations and declined the motion on the merits.
[13] This motion to set aside the decision of Justice O’Neill is denied. Costs are awarded to the City of Ottawa in the amount of $3,300 inclusive of taxes and disbursements. This award is in addition to the $5,200 in costs awarded by O’Neill J.
Marrocco ACJ
I agree ________________________________
Whitten A. J.
I agree ________________________________
Thomas B. J.
Released: April 9, 2014
CITATION: Humanics Universal Inc. v. City of (Ottawa), 2014 ONSC 2195
DIVISIONAL COURT FILE NO.: 12-DC-1877
DATE: 2014/04/09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Humanics Universal Inc and Dr. Ranjit Perera Applicants (Moving Parties)
BETWEEN:
City of Ottawa and The Ontario Municipal Board Respondents
REASONS FOR JUDGMENT
Marrocco ACJ
Whitten A.J.
Thomas B. J.
Released: April 9, 2014