CITATION: Yorkdale Group Inc. v. Registrar, Ontario New Home Warranties Plan Act, 2015 ONSC 2238
DIVISIONAL COURT FILE NO.: 90/15 DATE: 20150407
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, SACHS AND LABROSSE JJ.
BETWEEN:
YORKDALE GROUP INC. Applicant
– and –
REGISTRAR, ONTARIO NEW HOME WARRANTIES PLAN ACT Respondent
Brian M. Campbell, for the Applicant
David Outerbridge and Gena Argitis, for the Respondent
HEARD at Toronto: April 7, 2015
SACHS J. (ORALLY)
[1] This application fails for a number of reasons. First, the effect of paragraph 6 of the pre-hearing order is to leave open the ability of the applicant to accept the terms and conditions set out in the respondent’s correspondence of July 16, 2014 (the “Terms and Conditions Letter”). However, in the Terms and Conditions Letter, all the respondent agreed to do was “to consider” the applicant’s application for registration as a vendor if the conditions set out in the letter were acceptable to the applicant. The Terms and Conditions Letter also stated that the conditions of registration listed in the letter did “not restrict the registrar from placing further conditions on your registration that are deemed to be appropriate.” In other words, in the Terms and Conditions Letter the respondent specifically preserved its discretion to refuse to register the applicant as a vendor or to impose further conditions prior to registration.
[2] Thus, even if this Court were to direct that paragraph 6 of the pre-hearing order be reinstated, this would not have the effect of requiring the respondent to register the applicant as a vendor. It would only result in an order that the respondent consider whether to register the applicant as a vendor.
[3] To construe paragraph 6 as meaning that the respondent was required to register the applicant as a vendor now that the applicant has accepted the terms and conditions set out in the Terms and Conditions Letter, would result in upholding an order that fettered the discretion of the respondent to perform the very important consumer protection function that it has the statutory mandate to perform. As such, the term would be inconsistent with the scheme of the ONHWPA and therefore invalid: see Amerato v. Ontario (Registrar, Motor Vehicle Dealers Act), 2005 CarswellOnt 4100 (C.A.).
[4] In this regard, we reject the submission of the applicant that no new circumstance occurred between the date of the pre-hearing order and the date the respondent issued its Notice of Proposal to refuse to register the applicant as a vendor. In our view, the release of the Report of the Commissioner of the Elliott Lake Inquiry was a significant event that raised serious concerns about the honesty and integrity of Levon Nazarian, a principal of the applicant company. This is precisely the kind of event that makes it so important for the respondent not to be put in the position of fettering its discretion when it comes to the ultimate decision of whether someone is entitled to registration as a vendor.
[5] The second reason that the application must fail is that this is not an appropriate case for this Court to exercise its supervisory jurisdiction through judicial review. The Court’s discretion to exercise such jurisdiction is grounded in the principle that even where a public body may have acted unlawfully, public interest does not always require intervention.
[6] One of the grounds upon which this Court may refuse to exercise its supervisory jurisdiction is where the applicant has an adequate alternative remedy that it can pursue.
[7] In this case the applicant has the ability to appeal the Notice of Proposal of the respondent in relation to its refusal to register the applicant as a vendor to LAT, with a further right of appeal to three judges of the Divisional Court. In fact, the applicant has already exercised this right of appeal.
[8] In our view, this statutory appeal procedure is not only an alternative and adequate procedure; it is the preferable procedure. It provides for a hearing de novo of all the issues relating to the respondent’s refusal to register the applicant. It is an expedited process using a specialized tribunal with expertise in builder and vendor registration matters. Finally and most importantly, LAT would be empowered on the appeal to compel the respondent to register the applicant as a vendor, something we cannot do in the circumstances of this application.
[9] In this regard, it is important to note that the applicant’s motion before LAT that resulted in the order that is the subject of this application did not seek an order compelling the respondent to register the applicant as a vendor. The applicant cannot now ask this Court on a judicial review application to adjudicate an issue for the first time that was not addressed below.
[10] For these reasons, the application is dismissed.
SWINTON J.
COSTS
[11] In the Application Record in file 90/15, I have endorsed, “This application is dismissed for oral reasons delivered by Sachs J. Costs to the respondent are fixed at $17,000.00 all in, an amount that is fair and reasonable in the circumstances.”
___________________________ SACHS J.
SWINTON J.
LABROSSE J.
Date of Reasons for Judgment: April 7, 2015
Date of Release: April 13, 2015
CITATION: Yorkdale Group Inc. v. Registrar, Ontario New Home Warranties Plan Act, 2015 ONSC 2238
DIVISIONAL COURT FILE NO.: 90/15 DATE: 20150407
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, SACHS AND LABROSSE JJ.
BETWEEN:
YORKDALE GROUP INC. Applicant
– and –
REGISTRAR, ONTARIO NEW HOME WARRANTIES PLAN ACT Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: April 7, 2015
Date of Release: April 13, 2015