CITATION: Brown v. The Municipal Property Assessment Corp. 2014 ONSC 7137
DIVISIONAL COURT FILE NO.: 361/13
DATE: 20141209
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SPENCE, SACHS & NORDHEIMER JJ.
BETWEEN:
SYLVIETTE BROWN as Trustee of Property Roll 1970 000 012 7610 000 (Georgina) and SYLVIETTE BROWN on her own behalf as owner of Little River Farms
Respondents
(Plaintiffs)
– and –
THE MUNICIPAL PROPERTY ASSESSMENT CORPORATION (REGION 14), THE ASSESSMENT REVIEW BOARD and THE CORPORATION OF THE TOWN OF GEORGINA
Appellant
(Defendants)
S. Brown in person
C. A. Painter, for the appellant
HEARD at Toronto: December 3, 2014
NORDHEIMER J.:
[1] The Corporation of the Town of Georgina appeals, with leave, from the order of Perell J. dated May 6, 2013 in which the motion judge varied the terms of an earlier order that he had made in which he dismissed Mrs. Brown’s action. The variation permitted Mrs. Brown to file an amended statement of claim against the appellant only and also provided that the amended pleading was to be prepared by a lawyer. For the following reasons, I conclude that the motion judge was in error in making the order that he did.
[2] Before turning to the facts and analysis, I should mention how the hearing of this matter unfolded. At the start of the hearing, Mr. Brown appeared and asked that the matter be adjourned because his wife was in hospital. Mr. Brown produced a letter from a clinic that simply advised that Mrs. Brown had been seen at the clinic. For reasons given at the time, we declined to adjourn the matter.[^1] Mr. Brown then asked that the hearing be held down until 12:30 p.m. so that he could consult with his wife. We agreed to do so. At 12:45 p.m., Mr. Brown appeared and asked that the matter be held down further to 2:30 p.m. He said that his wife would be able to attend at that time. Again, we agreed to do so. When we returned at 2:30 p.m., Mrs. Brown was present. After we heard from counsel for the appellant, Mrs. Brown was able to very capably make her responding submissions.
[3] I now turn to the background facts and my analysis of the issues raised.
Background
[4] Mrs. Brown commenced this proceeding arising out of a dispute that she has with the appellant, and others, regarding the assessment of two properties that she owns in the Town of Georgina. The three defendants brought motions to dismiss this action. On September 25, 2012, Perell J. granted an order dismissing the action against all three defendants. As the motion judge explained, he dismissed the action principally on the basis that the subject matter of the claim was outside the jurisdiction of the Superior Court of Justice. In particular, the motion judge said, at para. 51:
I agree with MPAC’s so-called issue estoppel argument, which, in its essence, is that Mrs. Brown’s action is a disguised attempt to litigate a claim over which an administrative tribunal and not the court has jurisdiction.
[5] On April 26, 2013, Mrs. Brown, who is unrepresented, brought a motion pursuant to rules 59.06 (2) and 37.14 (1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to introduce new evidence and to set aside or vary the September 25, 2012 order. The motion judge dismissed that motion as it related to the other two defendants but “practically speaking, and as a matter of justice”, he granted the motion as it related to the appellant.
[6] While the background facts are not really necessary to the determination of this appeal, I will nonetheless set them out briefly. To the degree that I do so, I borrow the recitation of those facts from the reasons of the motion judge.[^2]
[7] Mrs. Brown owns a 100-acre farm in the Town of Georgina, on which she has carried on business as Little River Farms since 1975. She also owns a recreational investment property at 32 Shirlea Boulevard.
[8] In this action, which was commenced in 2011, Mrs. Brown alleged that, for the purposes of municipal taxation, her properties have been wrongly, unfairly, fraudulently, and improperly assessed.
[9] Mrs. Brown’s assessment complaints have been around for some time. For many years, she has complained bitterly about the assessment of the farm property and about the Town’s use of that assessment to impose municipal realty taxes. She has also complained about the assessment of the Shirlea Boulevard property. She has frequently filed appeals of the assessments. Pursuant to s. 40 of the Assessment Act., R.S.O. 1990, c. A.31, Mrs. Brown appealed the assessments of the farm property to the Assessment Review Board. She challenged the correctness of the assessments for the 2004, 2005, 2006, 2007, and 2008 taxation years. She also appealed the assessment of the Shirlea Boulevard property.
[10] Previously, in 2002, Mrs. Brown had commenced an action against the Town, the Region of York, and others alleging, among other things, negligence, nuisance, strict liability, and abuse of power. The action sought relief with respect to the flooding of the farm property allegedly caused by the misconduct of the Town. Nothing seems to have happened in the 2002 action, and by order dated October 2009, the 2002 action was dismissed for delay. Some of the allegations in the 2002 action are repeated in this action.
[11] It appears that the core of the dispute in the 2011 action is Mrs. Brown’s complaint that road and drainage work undertaken by the Town many years ago and, again recently, has caused flooding and pollution that has destroyed the agricultural capability of the farm with the result that the Municipal Property Assessment Corporation’s assessment of the farm lands is incorrect, i.e., MPAC has overvalued the farm and by not taking into account the harm caused by the Town’s work.
[12] In the 2011 action, Mrs. Brown pleads that MPAC purposefully or negligently and corruptly and fraudulently failed to properly assess her properties in order to assist the Town. She alleges that the Assessment Review Board’s handling of her assessments was questionable, biased, unprofessional, damaging to the image of the Assessment Act, injurious to the public, and a cover-up of the fraudulent concealments and dubious assessments of MPAC and the Town. She alleges and believes that the Town has taken advantage of MPAC’s fraudulent assessments.
[13] Mrs. Brown now has arrears of property taxes that exceed $20,000.
[14] On October 18, 2012, Mrs. Brown served a Notice of Appeal, and on November 28, 2012, she served an amended Notice of Appeal, from the September 25, 2012 order. On December 7, 2012, the Registrar of the Court of Appeal delivered a Notice of Intention to Dismiss the Appeal for Delay. On January 9, 2013, Mrs. Brown’s appeal was administratively dismissed for delay. Mrs. Brown moved to have the dismissal set aside. That motion was heard on May 23, 2013 and is still under reserve by a judge of the Court of Appeal.
Analysis
[15] Rule 59.06(2)(a) permits a party to seek to have an order set aside or varied on the ground of fraud or of facts arising or discovered after it is made. Rule 37.14(1)(b) allows a party to set aside or vary an order if the party failed to appear on the motion through accident, mistake or insufficient notice.
[16] The motion judge concluded that Mrs. Brown could not satisfy the prerequisites for relief under either of those rules. There was no fraud. There were no facts that arose or that were discovered after the order was made. Mrs. Brown did not fail to appear on the motion through accident, mistake or insufficient notice. No appeal has been taken from any of those findings. In my view, the motion judge was correct in each of those conclusions.
[17] Consequently, the motion judge dismissed the motion to vary as it related to the other two defendants. He did not do so, however, against the appellant. Rather, the motion judge varied the order to permit Mrs. Brown to continue her action against the appellant but on certain terms. His reasons for doing so are as follows (paras. 49-53):
However, practically speaking, it does not make sense nor would it be fair to dismiss Mrs. Brown’s action against the Town provided that she confined that action to claims that are properly before the court. There is nothing stopping Mrs. Brown from commencing a new action based on the events happening since September 2012.
Without admitting any liability during argument, the Town honourably and commendably acknowledged that Mrs. Brown might have a torts claim arising from the flooding and the installation of municipal road or drainage works near the farm property. The Town also acknowledged that Mrs. Brown’s 2002 action was decided on procedural grounds and not based on a decision on the merits.
I, therefore, conclude that it would be appropriate to allow Mrs. Brown’s motion as against the Town on terms that she be given an opportunity to start afresh as against the Town but only to assert claims that are within the jurisdiction of this court.
As a self-represented litigant, Mrs. Brown, has shown that she is unable to transverse the difficult jurisdictional territory of differentiating claims that are properly before this court or that are within the jurisdiction of other tribunals. Therefore, I am imposing the additional term that leave to file a fresh pleading is conditional on the pleading being prepared by a lawyer licensed to practice in Ontario.
[18] There is one further salient fact that needs to be mentioned in order to fully understand the factual background to this matter. The order that the motion judge made on September 25, 2012 was never taken out. That is, the order was never signed and entered. If it had been, the motion judge would have been functus officio in terms of that order. He would have then been precluded from making any variations to that order except through the express authority given to a judge under the Rules of Civil Procedure. The two rules that the motion judge referred to are the principal rules that permit a judge to vary an order s/he has made after it is signed and entered. However, the motion judge, in this case, found that neither of those rules applied. Consequently, had the order been signed and entered, there would have been no authority for the motion judge to grant the relief to Mrs. Brown that he did. Rather, it appears that the motion judge relied on his inherent authority to change the order that arose from the fact that the order had not been signed and entered.
[19] I do not believe that the motion judge had the jurisdiction to proceed in the manner that he did but, even if that jurisdiction existed, it was not properly exercised in this case. In my view, the mere fact that the technical requirements for the finality of the earlier order are missing, because the order was not signed and entered, does not permit a judge to vary that order in whatever manner s/he happens to consider to be appropriate at a later date. The principle of finality, that underlies the functus officio principle, weighs against that scope of authority and that type of alteration. Parties have a right to expect that once a matter is determined by a judge, it is over. Our rules of procedure do not envisage that parties will be allowed to reargue matters, except in very narrow circumstances.
[20] I acknowledge that there is a fairly broad power, in a judge, to change an order after it has been announced but before it has been signed and entered. Any such change should only be made, however, if it is either technical (e.g. to correct an arithmetic error) or it is necessary to avoid a miscarriage of justice: Clayton v. British American Securities Ltd., 1934 229 (BC CA), [1935] 1 D.L.R. 432 (B.C.C.A.) at pp. 440-441. Even then, if a change is to be made, it must be fully explained to ensure that the authority is not abused. The concern that arises from changes being made by a judge to an order, that has already been pronounced, has been expressed in other cases. For example, in Montague v. Bank of Nova Scotia (2004), 2004 27211 (ON CA), 69 O.R. (3d) 87 (C.A.), Goudge J.A. said that, notwithstanding the very wide discretion a judge has to change his or her judgment before it is entered, that discretion had to be exercised cautiously and for very good reasons. He commented, at para. 40:
Any change to a judgment once given, no matter how soundly based, runs the risk of evoking suspicions of abuse on the part of those adversely affected. It is at the least disquieting, and to that extent can put a cloud over the administration of justice. A judge exercising this discretion bears a significant onus to explain the change.
[21] The onus on a judge to clearly explain the basis for a change to an order already given was repeated in 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, [2014] O.J. No. 697 (C.A.) where Gillese J.A. said, at para. 73:
A clear explanation for the change to the order was required so that the parties, and this court on review, could know the reason for the change. It was an error to fail to give that explanation.
[22] In addition to these principles, it is also clear that the discretion to re-open a matter is one that should be resorted to “sparingly and with the greatest care”: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983 at para. 61; Clayton v. British American Securities Ltd. at p. 440.
[23] In this case, the motion judge found that it would not be “fair” to dismiss Mrs. Brown’s action against the appellant. Yet that is what the motion judge had already done, some eight months earlier. Indeed, in his reasons for the order under appeal, the motion judge repeated his concerns respecting the existing claim. He said, at para. 7:
Although as currently drafted, Mrs. Brown’s Statement of Claim against the Town is jurisdictionally untenable, it is in the interests of justice that she have the opportunity to advance a claim that would be within the jurisdiction of the Superior Court for the alleged harm that she has allegedly recently suffered. [emphasis added]
[24] Notwithstanding his views about the existing claim, the motion judge said that it was “in the interests of justice” and “appropriate” to permit Mrs. Brown to “start afresh” to advance a claim for recent harm she allegedly has suffered. However, that is not the effect of what the motion judge did. While acknowledging that there was nothing preventing Mrs. Brown from commencing a fresh action, the motion judge did not dismiss her motion to vary and leave it to Mrs. Brown to start that fresh action, if she wished to do so. Rather, the motion judge allowed her to amend the claim in the action that she had started in 2011. Unfortunately, other than offering vague references to fairness and practicalities, there are no reasons given by the motion judge for why it was appropriate to vary the earlier order, in the way that he did, rather than simply leave Mrs. Brown to commence a fresh action.
[25] This is of particular concern since, in varying his earlier order, the motion judge does not appear to have considered (certainly there is no mention of it in his reasons) that he could be affecting limitation periods that might arise regarding any different claims that Mrs. Brown might choose to advance. That possible impact would be a very serious one for the appellant and could work a significant unfairness. It is also a very real concern given the nature of the allegations made by Mrs. Brown that essentially tie the various floods that have occurred on her property to one course of conduct by the appellant.
[26] I appreciate that the motion judge appears to have been focussed on new claims for recent harm and, thus, would not likely have turned his mind to questions about limitation periods since, if the only claims to be advanced were new claims, no limitation issue would likely present itself. However, by permitting Mrs. Brown to advance her new claim within the 2011 action, the motion judge has, I believe unintentionally, created a situation where Mrs. Brown could shelter older claims in any amended claim she might deliver. Indeed, that appears to be exactly what has happened in the “Fresh as Amended” statement of claim that Mrs. Brown filed before this court.
[27] In reaching his conclusion, the motion judge placed reliance on the “contextual approach” referred to in Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179 (C.A.). With respect, I believe that the motion judge’s reliance on that approach is misplaced for two reasons. One is that the decision in Scaini was predicated on the appellant having satisfied the requirements of r. 37.14(1), something that the motion judge here expressly found that Mrs. Brown had not done. The other is that, in applying the contextual approach, the motion judge did not, as I have already said, consider the limitations issue. This was a matter that was expressly mentioned by the Court of Appeal in Scaini where Goudge J.A. said, at para. 27:
And the respondent can point to no prejudice. Importantly, no limitation period has passed.
[28] Further, and in any event, assuming that there was a proper basis for the motion judge to permit Mrs. Brown to amend her statement of claim, no authority is cited by the motion judge for his position that Mrs. Brown could only amend her pleading, if that amended pleading was prepared by a lawyer licensed to practice in Ontario.
[29] The Rules of Civil Procedure have certain restrictions regarding when a plaintiff must be represented by a lawyer. None of those restrictions apply to the situation involving Mrs. Brown. Absent anything in the Rules of Civil Procedure, or elsewhere, that would grant a judge the authority to require an individual, who is advancing a personal claim, to be represented by a lawyer, only the inherent jurisdiction of the court to control its own process could be relied upon for the condition that the motion judge imposed.
[30] I am not prepared, on the basis of this record, to conclude that the court’s inherent jurisdiction goes so far as to permit a judge to order that an individual must be represented by a lawyer, whether in whole or in part. It may be that such an order could be justified, under the court’s inherent jurisdiction, in an exceptional case. However, any determination that the court’s inherent jurisdiction extends that far, should await a case where the matter can be fully canvassed on a proper record and after full argument.
[31] The appeal is allowed and paragraphs 2(b) and 2(c) of the order of Perell J. dated May 6, 2013 are set aside. The appellant is entitled to its costs of the appeal, to be paid by the respondents, and fixed in the amount of $5,000, inclusive of disbursements and HST.
NORDHEIMER J.
SPENCE J.
SACHS J.
Date of Release:
CITATION: Brown v. The Municipal Property Assessment Corp. 2014 ONSC 7137
DIVISIONAL COURT FILE NO.: 361/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SPENCE, SACHS & NORDHEIMER JJ.
BETWEEN:
SYLVIETTE BROWN
Respondent
– and –
THE CORPORATION OF THE TOWN OF GEORGINA
Appellant
REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Release:
[^1]: Brown v. Municipal Property Assessment Corp. (Region 14), 2014 ONSC 7017 [^2]: Property Roll No. 1970 000 012 76100 0000 (Trustee of) v. Municipal Property Assessment Corp. (Region 14), [2013] O.J. No. 2052 (S.C.J.)