West Nipissing (Municipality) v. MX Constructors Inc., 2017 ONSC 6108
CITATION: West Nipissing (Municipality) v. MX Constructors Inc., 2017 ONSC 6108
DIVISIONAL COURT FILE NO.: DV-1054-17 DATE: 20171011
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Kiteley, Conway, Mulligan JJ.
BETWEEN:
THE MUNICIPALITY OF WEST NIPISSING
Michael M. Miller, for the Plaintiff (Appellant)
Plaintiff (Appellant)
– and –
MX CONSTRUCTORS INC., STEVEN MORRISON AND BERNARD MORRISON
William J. Leslie, for the Defendants (Respondents)
Defendants (Respondents)
HEARD at Sudbury: October 11, 2017
ORAL REASONS FOR JUDGMENT
Kiteley, J. (Orally)
[1] This is an appeal (with leave) by the municipality from the decision of Rivard J. dated January 31, 2017, [2017 ONSC 745]. He stayed the action in court file number CV-16-6381 pending the completion of a trial determining fraud related charges against the defendant Steven Morrison.
[2] In that decision the motion judge noted that Stickney v. Trusz (1973) 1973 423 (ON SC), 2 O.R. (2d) 469 was the leading authority and observed that it articulated the principle that the discretion to stay a civil action should only be exercised “in extraordinary or exceptional cases”. The burden is on the moving party to show that the case is “other than ordinary”.
[3] At para. 4, the motion judge held that that principle had been eclipsed by s. 7 of the Canadian Charter of Rights and Freedoms which he held had “changed that general rule” in that an accused person had acquired the right to remain silent. At para. 8 he considered the decision of the Court of Appeal in Nash v. Ontario 1995 2934 (ON CA), [1995] O.J. No. 4043 but distinguished it on the basis that, in that case, it was not the accused seeking a stay. He preferred the decision of Bour et al. v. Manraj et al [1995] Carswell Ont. 510. At para. 10 he indicated that “a stay will not unduly delay the civil action” and he indicated that the “ceilings recently established by the Supreme Court in R. v Jordan [2016] S.C.C. 27 will require that the criminal trial proceed within a reasonable time”.
[4] The Appellant takes the position that the motion judge erred in law in failing to apply the test in Stickney v. Trusz or he made a palpable and overriding error in his application of the test. In either event, the Appellant argues that the order staying the civil proceeding should be set aside.
[5] The decision to stay a civil proceeding is a discretionary decision based on the application of legal principles to the facts of the case. In that context, the issue before us is whether the motion judge identified the correct legal test and whether he applied it appropriately. The first is a decision of law which attracts a standard of review of correctness. The second is a discretionary decision of mixed fact and law that attracts a standard of review of palpable and overriding error.
[6] We agree that the motion judge erred in law in the following respects.
[7] First he erred in law by finding that s. 7 of the Charter of Rights and Freedoms changed the general rule in Stickney v Trusz; the Ontario Court of Appeal in Nash made it clear that the test in Stickney continues to apply and held that both Crown and accused must meet the same burden of proving extraordinary or exceptional circumstances.
[8] Second, he erred in law by preferring the decision in Bour v. Manraj without noting that that case preceded the introduction of the implied undertaking rule in the Rules of Civil Procedure.
[9] Third, he erred in law by inferring that the ceilings established in criminal proceedings as a result of R. v. Jordan ought to be a factor in the determination of whether there would be delay in the related civil action. The institutional changes required in response to Jordan are irrelevant to the question of a stay of civil proceedings in the wake of related criminal proceedings.
[10] The decision of the motion judge shall be set aside.
[11] The evidence in support of the motion consisted of the affidavit of Steven Morrison sworn January 16, 2017. This is not one of those rare cases that meets the test of “extraordinary or exceptional” circumstances and accordingly his motion for a stay pending the disposition of the criminal charges is dismissed.
[12] As for costs, counsel advised the following is on consent.
[13] Following the hearing of the motion, the motion judge made an order that the defendant was entitled to costs of $5,072.99 plus HST on the fees “in the cause”. As a result of allowing this appeal, the plaintiff is now entitled to those costs “in the cause”.
[14] Counsel agree, based on the outcome of this appeal, that the plaintiff is entitled to costs of the motion for leave in the amount of $1,500 “in the cause”.
[15] As a result of the order allowing the appeal, again on consent, the plaintiff is entitled to costs of the appeal in the amount of $8,000 all in, “in the cause”.
__________________________________ Kiteley J.
I agree
Conway J.
I agree
Mulligan J.
Date of Reasons for Judgment: October 11, 2017
Date of Release: October 13, 2017
CITATION: West Nipissing (Municipality) v. MX Constructors Inc., 2017 ONSC 6108
DIVISIONAL COURT FILE NO.: DV-1054-17 DATE: 20171011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kiteley, Conway, Mulligan JJ.
BETWEEN:
The Municipality of West Nipissing
Plaintiff (Appellant)
– and –
MX Constructors Inc., Steven Morrison and
Bernard Morrison
Defendants (Respondents)
ORAL REASONS FOR JUDGMENT
Kiteley J.
Date of Reasons for Judgment: October 11, 2017
Date of Release: October 13, 2017