Citation and Court Information

CITATION: Zirger v. The Normal Farm Practices and Protection Board, 2018 ONSC 2236 DIVISIONAL COURT FILE NO.: 511/16 DATE: 20180406

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Thorburn, McKelvey, and Myers JJ

BETWEEN:

RICHARD ZIRGER, JUDI ZIRGER, JAMES DELL, SOPHIE DELL, RON QUEVILLON, CHARLENE QUEVILLON, DINO LA VALLE, MARY LA VALLE, DAN LA VALLE, LARRY BOURK, JOAN BOURK, GEORGE LEPP, CINDI LEPP, MARK LEPP, ERICA LEPP Applicants

– and –

THE NORMAL FARM PRACTICES AND PROTECTION BOARD and ZEIFMAN PARTNERS INC. as Receiver for VANDERMEER GREENHOUSES LIMITED Respondents

Counsel: Paul Marshall, and Cassandra Kirewske, Lawyers for the Applicants Judie Im and Colin Bourrier, Lawyers for The Normal Farm Practices Protection Board Stanley D. Berger, Lawyer for Zeifman Partners Inc. as Receiver for Vandermeer Greenhouses Limited

HEARD: April 5, 2018

Reasons for Decision

FL Myers J.

Background

[1] In May, 2015, the applicants commenced a proceeding before the respondent board concerning various disturbances to which they say they were subjected due to the operation of a nearby waste disposal site. The site was being operated by the respondent receiver. The applicants alleged that the disturbances were caused by the activities of the receiver not being carried out as “normal farm practices.”

[2] The board heard over 20 days of evidence in late 2015 and early 2016. Final argument has yet to be heard.

[3] In late July, 2017, an issue arose concerning the possible sale by the receiver of the waste disposal site. The applicants’ counsel served motion materials for an urgent motion before the board. The board advised the applicants’ counsel that the date that they had chosen for the motion was not available. The board determined instead to hold a hearing on August 9, 2017.

[4] The board advised the applicants’ counsel that their initial motion material was a “nullity” and the board required the applicants to serve corrected motion materials for the August 9, 2017 hearing date.

[5] The applicants chose not to proceed with the motion. Their counsel did not serve further material. But, the respondent, having been served with the original material, delivered responding material. The board advised the parties that a hearing was proceeding and it would deal with the question of service by the applicants at the hearing. The applicants’ counsel wrote to the board at midnight on the night before the hearing to advise that since they did not intend to proceed with their motion, absent further notice, they did not plan to attend.

[6] The board did not respond. Rather, it held its scheduled hearing proceeded in the absence of the applicants’ counsel.

The Application before the Court

[7] The applicants seek judicial review of an interlocutory decision of the board dated August 12, 2017 that resulted from the hearing on August 9, 2017 that their counsel did not attend. The board ordered that:

(a) no further motions may be brought by either party without leave of the board to be granted in urgent circumstances only;

(b) costs of $2,500 were payable by the applicants to the respondent receiver; and

(c) the proceedings would continue with final argument to the board by way of written submissions.

[8] The applicants bring this application for judicial review to the Divisional Court pursuant to ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1,

Judicial Review is not an Appeal

[9] The statute under which the hearing before the board is being held provides that either party may appeal the final outcome to this court. The appeal process is unlimited in that the appealing parties may raise any errors of fact, law, or jurisdiction that they say the board made. That includes raising any interim orders that were made by the board that the appellants may allege improperly led to the resulting final order that they challenge.

[10] An application for judicial review is not the same thing as an appeal. Without getting too technical, it is sufficient to say that judicial review is a public law remedy by which the courts will oversee government decision-makers even where the law does not provide an appeal to the unsuccessful party. The common law and, now, the Judicial Review Procedure Act provide for courts to become involved in processes of government in limited circumstances to ensure that certain fundamental rules of justice are maintained and to protect members of the public against government action that is inconsistent with established norms.

[11] Where the law provides for an appeal at the end of a government decision-making process, judicial review as a separate process is not required. The case will come to court if any party wishes to appeal. Denying a request for judicial review as we do below, does not limit or prejudice at all the applicants’ right to appeal to the court under the statute if they wish to do so once the board makes it final decision.

In any event, Judicial Review of Interim Orders is only available in Exceptional Circumstances

[12] It is a basic rule of judicial review that the court does not review interim orders made by government tribunals. Absent exceptional circumstances, the parties are to conclude their proceeding before bringing an application for judicial review of the final order and any interim orders that preceded it. In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, Laskin JA explained the reasons why the court does not intervene piecemeal while a hearing is still underway:

[69] The rationales for this principle are well known. The principle respects administrative decision-making and the legislature’s intent that internal review processes be exhausted before the court intervenes. At the same time, the principle preserves the right of the court to intervene in those exceptional circumstances where the justice of the case calls for intervention. Stratas J.A. summarized the rationales for the principle in C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] F.C.R. 332, at paras. 31-32, and I can do no better than quote his words:

This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [Citations omitted.]

[13] The interim order to which the applicants object concerns the ongoing management of the board’s processes. The applicants object to the order being made without a motion being brought and without their counsel being present. Volochoy is clear that it is not sufficient that an interim order may be classified as “jurisdictional” or that it may be said to have violated “natural justice.” Alleging errors of these dimensions is not, in and of itself, exceptional circumstance that allow judicial review of an interim order. The decision of the Court of Appeal is binding upon us and we must follow it.

[14] Whether the order was correctly made or not is not the issue. There is nothing exceptional about a board making an order as to the management of its internal processes that provides a basis for this court to become engaged at this time. Whether the order ends up even being germane to the final decision of the board once the proceeding is finally resolved remains to be seen.

[15] Therefore the application is dismissed.

Costs

[16] The board does not seek payment of its costs. Both of the other parties asked for costs. Neither of them provided a Costs Outline as required by Rule 57.01 (6) the Rules of Civil Procedure, RRO 1990, Reg. 194.

[17] As the successful party, the respondent receiver is entitled to its costs on a partial indemnity basis. It provided an affidavit of its fees that appended three narrative invoices. There was no information contained in the affidavit or the invoices concerning counsel’s rates or hours. Much of the work for which indemnity is sought is redacted and cannot be reviewed by the opposite parties or the court.

[18] Counsel advises that he is the only lawyer whose time is included in the invoices. He billed at $600 per hour for some of the time and $650 per hour more recently. Counsel seeks costs on a full indemnity basis of $30,000. He conceded that one invoice of almost $6,000 is double-counted.

[19] Counsel for the receiver explained the receiver’s role, as he saw it, as being to defend the assets of the debtor’s estate from encroachment and dilution by the applicants. This was not an appropriate position for a court appointed receiver to take. The role of the receiver is to steward the assets of the debtor and administer the liquidation of the assets as a fiduciary for all of those who are lawfully entitled to share in the proceeds of liquidation. Its role is to investigate and welcome those who properly ought to share in the debtor’s estate. As a party to litigation where a creditor’s claim needs proof, the receiver’s role is usually just to ensure that the facts and relevant law are all fairly presented to the decision-maker.

[20] We make no findings on the litigation behaviour of any of the parties before the board. That is an issue for the board. The application before us involved a contained set of facts and one issue of law. The receiver adopted the board’s argument that the application was premature. Argument from all parties took just over one hour. For these reasons, costs in the amount of $30,000 are excessive particularly given the lack of evidence of hours and rates and the redacting of a substantial portion of the fee narrative.

[21] There is no basis for the receiver to claim substantial or full indemnity costs.

[22] Therefore, the applicants shall pay the receiver its costs of this proceeding fixed in the amount of $2,000 all-inclusive within thirty days.

Myers J.

I agree _______________________________

Thorburn J.

I agree _______________________________

McKelvey J.

Released: April 6, 2018

DIVISIONAL COURT FILE NO.: 511/16

DATE: 20180406

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Thorburn, McKelvey, and Myers JJ

BETWEEN:

RICHARD ZIRGER, JUDI ZIRGER, JAMES DELL, SOPHIE DELL, RON QUEVILLON, CHARLENE QUEVILLON, DINO LA VALLE, MARY LA VALLE, DAN LA VALLE, LARRY BOURK, JOAN BOURK, GEORGE LEPP, CINDI LEPP, MARK LEPP, ERICA LEPP Applicants

– and –

THE NORMAL FARM PRACTICES AND PROTECTION BOARD and ZEIFMAN PARTNERS INC. as Receiver for VANDERMEER GREENHOUSES LIMITED Respondents

Released: April 6, 2018