CITATION: Picov Holdings Inc. v. Pickering Developments (Squires) Inc., 2016 ONSC 454
DIVISIONAL COURT FILE NO.: 20/16 DATE: 20160118
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
PICOV HOLDINGS INC.
Appellant
(Moving Party)
– and –
PICKERING DEVELOPMENTS (SQUIRES) INC., PICKERING DEVELOPMENTS (BAYLY) INC., PICKERING DEVELOPMENTS (401) INC., THE TOWN OF AJAX, THE CITY OF PICKERING and DURHAM REGION
Respondents
(Responding Parties)
David S. White and Anthony-George D’Andrea, for the Appellant (Moving Party)
Daron L. Earthy, for the Respondent, The City of Pickering
Chris M. Barnett and Laura K. Bisset, for the Respondents, Pickering Developments (401) Inc., Pickering Developments (Bayly) Inc. and Pickering Developments (Squires) Inc.
Andrew Biggart, for the Respondent, The Town of Ajax
Stan F. Floras, for the Ontario Municipal Board
HEARD at Toronto: January 18, 2016
SWINTON J. (ORALLY)
[1] Picov Holdings Inc. (“Picov”) seeks an order to stay a hearing of the Ontario Municipal Board (the “Board”) pending a motion for leave to appeal the decision of the Board dated January 13, 2016, which dismissed its motion to remove Aird & Berlis as lawyers of record for the Pickering Developments respondents.
[2] The Board was scheduled to commence a hearing on January 12, 2016 to deal with an appeal by The Town of Ajax respecting a zoning bylaw of the City of Pickering affecting Pickering Developments’ lands in Pickering. The main issues identified for the hearing relate to traffic and transportation concerns.
[3] Picov was given participant status at the hearing in a pre-hearing conference held in July 2015. Although it brought a motion to be added as a party at the outset of the hearing on January 12, 2016, it abandoned that part of its motion.
[4] A stay is an extraordinary equitable remedy. In my view, Picov has not met the test for a stay.
I. Is there a Serious Issue to be Tried?
[5] While this aspect of the test has a low threshold, in my view Picov has not shown that there is a serious issue to be determined on the motion for leave to appeal.
[6] Leave to appeal lies to the Divisional Court only on a question of law (Ontario Municipal Board Act, R.S.O. 1990, c. O.28, s.96(1)). The issue of whether to remove a lawyer of record is heavily fact-driven and is a question of mixed fact and law (see Regular v. Law Society (Nfld. & Labrador), 2011 NLCA 54 at para. 41). As the Board has not yet had an opportunity to issue its written reasons on the motion (not surprisingly, as the issue was raised January 12, 2016 on the first day of the hearing), I do not know if there is any extricable error of law alleged. None has been identified by the moving party, raising a question as to the jurisdiction of this Court to grant leave.
[7] In any event, given the facts set out in the Pickering Developments’ factum, there does not appear to be reason to doubt the correctness of the decision.
[8] Picov has failed to show that there is a conflict of interest if Aird & Berlis represents Pickering Developments in the Ajax appeal. The appeal relates to land use planning issues in the City of Pickering. Picov’s real concern is with respect to a decision to be made in the future by OLG with respect to a gaming or casino licence. Such a decision can only be indirectly related to the Board proceedings, which deal only with planning and land use.
[9] Picov has no direct legal interest in the planning issues to be determined by the Board, and Aird & Berlis has only been retained with respect to the hearing related to those issues. Thus, Picov has failed to show Aird & Berlis is acting on a matter where Picov is directly adverse in interests.
[10] Nor has it shown that Aird & Berlis represented Picov in a matter sufficiently related to the Ajax appeal that Aird & Berlis should be deemed to have received confidential information that could be used to Picov’s prejudice.
[11] Finally, a judge hearing the motion for leave to appeal might well dismiss it as premature, as the courts are reluctant to interfere with the ongoing processes of administrative tribunals because of concerns about fragmentation and delay.
II. Will Picov Suffer Irreparable Harm if a Stay is Not Granted?
[12] As I have said, the Board hearing deals with Ajax’s appeal of a zoning bylaw passed by the City of Pickering. The issues relate to traffic and infrastructure issues. Picov is not directly affected by the proceeding and does not appear to have raised any relevant information relating to land use considerations in its materials. While it has a commercial interest in the future approval of a casino licence and sees Pickering Developments as a competitor, the Board hearing will have no direct effect on its legal rights.
[13] Moreover, Picov’s conduct belies its argument that it will suffer irreparable harm if Aird & Berlis continues to represent Pickering Developments. It knew of Aird & Berlis’s representation in July 2015 and did not challenge that representation until the eve of the hearing. It did not seek party status until the eve of the hearing and then abandoned that request.
[14] In the circumstances, it has failed to show that irreparable harm will be suffered if a stay is not granted.
III. The Balance of Convenience Favours the Denial of a Stay
[15] The parties to the appeal have prepared for a hearing and they will experience further costs and further delay if the stay is granted. There is a public interest in allowing the administrative process to continue without interruption so as to reach a timely decision on planning issues.
[16] For these reasons, the motion for a stay is dismissed.
Costs
[17] I have endorsed the Motion Record, “For oral reasons delivered today, the motion for a stay is dismissed. Costs to Pickering Developments fixed at $8,000 and to the City of Pickering fixed at $2,000, payable by Picov Holdings Inc.”
___________________________ SWINTON J.
Date of Reasons for Judgment: January 18, 2016
Date of Release: January 20, 2016
CITATION: Picov Holdings Inc. v. Pickering Developments (Squires) Inc., 2016 ONSC 454
DIVISIONAL COURT FILE NO.: 20/16 DATE: 20160118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
PICOV HOLDINGS INC.
Appellant
(Moving Party)
– and –
PICKERING DEVELOPMENTS (SQUIRES) INC., PICKERING DEVELOPMENTS (BAYLY) INC., PICKERING DEVELOPMENTS (401) INC., THE TOWN OF AJAX, THE CITY OF PICKERING and DURHAM REGION
Respondents
(Responding Parties)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: January 18, 2016
Date of Release: January 20, 2016