CITATION: Concerned Residents Association v. Preston Sand and Gravel et al., 2015 ONSC 2086
COURT FILE NO.: DC14-615ML
DATE: 2015-03-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CONCERNED RESIDENTS ASSOCIATION OF NORTH DUMFRIES
E. Gillespie, for Concerned Residents Association of North Dumfries, the Applicant (Moving Party)
Applicant
(Moving Party)
- and -
PRESTON SAND AND GRAVEL COMPANY LIMITED and THE TOWNSHIP OF NORTH DUMFRIES
D. Germain, for Preston Sand and Gravel Company Limited, the Respondents (Responding Parties) and P. Kraemer for The Township of North Dumfries, the Respondents (Responding Parties)
Respondents
(Responding Parties)
HEARD: December 15, 2014
RULING
[1] The moving party applicant seeks an extension to file a motion for leave to appeal a decision of the Ontario Municipal Board to the Divisional Court. The respondents ask that the applicant’s motion be dismissed. The respondent Preston Sand and Gravel Company Limited (hereinafter “Preston Sand”) asks, in the alternative, that the applicant be ordered to post security for costs.
[2] The Ontario Municipal Board’s decision, which the applicant wishes to appeal, is dated April 28, 2014. The hearing, which resulted in that decision, had commenced on January 20, 2014.
[3] In a nutshell, the applicant had appealed to the Ontario Municipal Board zoning by-law amendments passed by the Township, which amendments would permit the respondent Preston Sand to carry on an aggregate operation on land it owns. Preston Sand had started the process to obtain permission to do so in 2008. The decision of the Ontario Municipal Board substantially dismissed the applicant’s appeal and granted the approval sought by Preston Sand.
[4] The Ontario Court of Appeal decision in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (Ont. CA), sets out the following tests for an extension to file a motion for leave to appeal. Paragraph 15 of the decision of E.E. Gillese, J.A. (in chambers) reads as follows:
- The test on a motion to extend time is well-settled. The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:
(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;
(b) the length of, and explanation for, the delay in filing;
(c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and
(d) the merits of the proposed appeal.
[5] I shall address the various elements of the test individually and then collectively.
A) Whether the moving party formed a bona fide intention to appeal within the relevant time period
[6] The respondents fairly and appropriately concede that the applicant formed the requisite intention on a timely basis, and so this element is not in issue.
B) The length of, and explanation for, the delay in filing
[7] In this case, the delay was for three months and 22 days. The deadline was May 21, 2014. The applicant served, but did not file its motion for leave by the deadline. On September 12, 2014 it informed counsel for Preston Sand that it intended to bring this motion.
[8] The applicant’s explanation for this delay is that it had attempted to file its motion for leave within the deadline, but that the filing was refused, and then through inadvertence there was a failure to file subsequently. The only material explanation for the inadvertence is that relevant counsel was beginning a vacation.
[9] While inadvertence is a refreshingly honest assertion, it is not a talisman, the mere raising of which constitutes an adequate explanation for delay. Counsel was aware of the filing problem before he left on vacation. Even in this day of easy and virtually instantaneous communications, it appears that he did not instruct his staff to deal with the issue. The explanation is insufficient.
C) Any prejudice to the responding parties caused, perpetuated or exacerbated by the delay
[10] Preston Sand argues that the prejudice here is significant since it means the delay of a business in which there has already been an investment of capital and for which various regulatory approvals had been sought and obtained.
[11] The applicant counters with the fact that the respondents were served, on a timely basis, with the notice of motion for leave, and thus had knowledge of the intention to appeal, and that in any event, the delay here is less than four months in duration.
[12] In my view, Preston Sand’s argument must fail in that it confuses the delay brought about by the entire Ontario Municipal Board process and any appeal from it with the period of delay before me, which is the delay in filing and bringing the motion for extension.
D) The merits of the proposed appeal
[13] The underlying right to appeal is set out in s. 96 of the Ontario Municipal Board Act, R.S.O. 1990, c.O. 28. In reads, in part, as follows:
Appeal
- (1) Subject to the provisions of Part IV, an appeal lies from the
Board to the Divisional Court, with leave of the Divisional
Court, on a question of law.
Decisions of Board to be final
(4) Save as provided in this section and in section 43,
(a) every decision or order of the Board is final; and
(b) no order, decision or proceeding of the Board shall be questioned or reviewed, restrained or
removed by prohibition, injunction, certiorari or
any other process or proceeding in any court.
[14] The court must assess whether the applicant’s case raises a question of law, and whether this case is meritorious. This is a low threshold (see Falus v. Martap Developments 87 Ltd., 2012 ONSC 5163 (Div.Ct., Lax J.). Still, courts have denied extensions where there is an arguable, if dubious, appeal: (See Bratti v. Wabco Standard Trane Inc., [1994] O.J. No. 855 (ONCA)(Laskin J.A., in chambers.)
[15] The applicant argues that the Ontario Municipal Board’s refusal to allow the testimony of a particular experts amounts to an error in law, and that the Board’s reasons were insufficient, thus disclosing a second error in law.
[16] Conversely, the respondents contend that the weighing of probative value against prejudicial effect is a factual question, not a legal one, and therefore does not disclose a question of law. Further, they argue that the reasons that the Board gave were more than sufficient.
[17] Both the British Columbia and Manitoba Courts of Appeal have confirmed that finding that a party was prejudiced is a finding of fact, and the degree of prejudice is also a factual finding. In contrast, the test to determine prejudice and proper weight to be given to each factor in determining prejudice are both questions of law.
[18] Here the applicant’s materials focus mainly on allegations that the Board did not appropriately balance the prejudice to the parties in allowing or disallowing the expert to testify. Essentially, the applicant takes issue with the Board’s balancing of prejudice, not with the test applied or factors considered.
[19] I am satisfied that the appeal being advanced turns on a question of fact, and not law.
[20] I reject the suggestion that the Board should have considered the fact that the fault for delayed filing of the expert testimony lay with counsel, not with the applicant itself. That does not change the reality that the lateness relating to the expert was in direct contradiction to a procedural order issued by the Board in this specific case.
[21] It is worth noting that the Divisional Court has indicated that it is not prepared to address questions of mixed fact and law or questions regarding the exercise of discretion by the Ontario Municipal Board: (See Residents for Sustainable Development in Guelph v. 6 & 7 Developments Ltd., [2005] O.J. No. 3623 and Silgold Developments Inc. v. RRL Burloak Inc., [2005] O.J. No. 6016.)
[22] Similarly noteworthy is the fact that the Board’s ruling is detailed and more than adequately addresses the issues before it.
[23] On the whole, it does not appear that there is a meritorious question of law for the Divisional Court to consider. The Board applied its discretion in weighing the prejudice that would accumulate to each of the parties if the expert testimony was admitted or not admitted, and this exercise is not reviewable.
[24] At paragraph 16 of the Enbridge Gas decision referred to earlier, Gillese J.A. states:
In my view, lack of merit alone can be a sufficient basis on which to deny an extension of time, particularly in cases such as this where the moving party seeks an extension to file a notice of leave to appeal, rather than extension of time to file a notice of appeal.
[25] On balance, I am of the view that this is not an appropriate case to grant the extension sought. The application is dismissed. In light of this ruling, the issue raised by the cross-motion, i.e. security for costs, is moot, and I shall not address it here.
[26] If the parties cannot agree with respect to costs of the motion before me, they may make very brief written submissions to me in that regard. Each set of submissions shall be not more than three typewritten pages in length, not including a costs outline.
[27] The respondents shall have until May 15, 2015 to file their submissions, if any. The applicant shall until May 29, 2015 to respond. All such submissions should be forwarded to my attention at the John Sopinka Court House at Hamilton.
Parayeski J.
Released: March 31, 2015
CITATION: Concerned Residents Association v. Preston Sand and Gravel et al., 2015 ONSC 2086
COURT FILE NO.: DC14-615ML
DATE: 2015-03-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CONCERNED RESIDENTS ASSOCIATION OF NORTH DUMFRIES
Applicant
(Moving Party)
- and –
PRESTON SAND AND GRAVEL COMPANY LIMITED and THE TOWNSHIP OF NORTH DUMFRIES
Respondents
(Responding Parties)
RULING
MDP:mw
Released: March 31, 2015