Court File and Parties

CITATION: Simone v. 1312733 Ontario Inc., 2020 ONSC 6546

DIVISIONAL COURT FILE NO.: DC-19-0079-00

DATE: 20201027

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Quinto simone and giovanna simone, Appellants

AND:

1312733 Ontario inc., Respondent

BEFORE: Gordon, Lederer, Favreau JJ.

COUNSEL: Conner Harris, for the Appellants

Ted Evangelidis, for the Respondent

HEARD at Brampton by videoconference: October 26, 2020

ENDORSEMENT

[1] At the conclusion of the hearing, we dismissed this appeal on the basis that the appeal is moot. These are the reasons for the dismissal.

[2] The appellants appeal an order made by Doi J. on July 23, 2019 under the Partition Act, R.S.O. 1990, c. P.4, in which he ordered the sale of a property jointly owned by the parties. In his decision, the application judge rejected the appellants’ request that the property be divided, in part on the basis of a finding that partition would contravene section 50(3)(b) of the Planning Act, R.S.O. 1990, c. P.13 and was thereby not permitted by section 50(20) of the Planning Act. The appellants argue that the application judge failed to give effect to a presumption that partition should be favoured over the sale of a property, and that he misinterpreted sections 50(3)(b) and 50(20) of the Partition Act.

[3] Following the commencement of the appeal, in an endorsement dated October 18, 2019, Baltman J. dismissed the appellant’s motion to stay Doi J.’s order.

[4] On March 31, 2020, the appellants sold their interest in the property to the respondent for $3,900,000.

[5] The respondent argues that, given the sale of the property, the appeal is now moot and should be dismissed. The appellants agree that the issues between the parties on the appeal are moot, but they argue the Court should nevertheless decide the appeal.

[6] We disagree.

[7] The Court of Appeal for Ontario has emphasized that it is only in “exceptional cases” that a court should exercise its discretion to hear a moot appeal: Tamil Co-Operative Homes Inc. v. Arulappah, 2000 5726 (ON CA), 49 OR (3d) 566 (C.A.), at para. 13. The three criteria courts consider in deciding whether to hear a moot appeal are: 1) the presence of an adversarial context, 2) the concern for judicial economy, and 3) the need for the Court to be sensitive to its role as the adjudicative branch in our political framework: New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, at para. 43.

[8] In this case, the appellants’ request that we exercise our discretion to decide this moot appeal fails primarily because it does not meet the second criteria. In New Brunswick, at para. 45, the Supreme Court held that “an expenditure of judicial resources is warranted in cases which raise important issues but are evasive of review”.

[9] The appellants argue that Doi J.’s interpretation of section 53(3)(b) of the Partition Act means that an order for partition will never be available, thereby undermining the presumption favouring partition over the sale of a property. The appellants further argue that, given Baltman J.’s finding that there was no irreparable harm warranting a stay, the issues raised on the appeal are elusive of review.

[10] With respect to the importance of the issues, the appellants overstate the impact of the application judge’s decision. On its face, the decision is consistent with the plain meaning of the relevant sections of the Planning Act and relevant case law. In addition, during the argument, counsel for the appellants conceded a number of circumstances in which partition would be available even on the application judge’s interpretation; most notably, where the municipality consents to the proposed partition. In this case, the appellants took no steps to obtain the municipality’s consent.

[11] More significantly, the importance of the issues on its own is not sufficient. As referred to above, the matter must be important and elusive of review. In this case, Baltman J. found no irreparable harm because the appellants did not provide evidence of longstanding plans to develop the property and because there was evidence that the appellants had previously tried to sell the property. These are findings of facts specific to the circumstances of this case. If the issues raised on this appeal recur, there is no reason why a court would refuse to grant a stay pending appeal on a proper evidentiary record. The issues on the appeal are not intrinsically elusive of review

[12] In conclusion, the appeal is dismissed as moot. The respondent is entitled to costs of $20,000 all inclusive as agreed between the parties.

Gordon J.

Lederer J.

Favreau J.

Date: October 27, 2020