DATE: 20040902

DOCKET: C40341

COURT OF APPEAL FOR ONTARIO

RE:

ROGER M. BARD and ROGER M. BARD, carrying on business as BARD’S MACHINE SHOP, MARY CATHERINE BARD, KEVIN BARD, a minor by his litigation guardian, Roger M. Bard and JASON BARD, a minor by his litigation guardian, ROGER M. BARD (Plaintiffs (Appellants)) – and – LONGEVITY ACRYLICS INC., 780267 ONTARIO INC., carrying on business as CORNWALL DOOR SYSTEMS, KENMAR DOORS LTD., and THE WORKERS’ COMPENSATION BOARD (Defendants (Respondents))

BEFORE:

MACPHERSON and CRONK JJ.A., and LANE J. (ad hoc)

COUNSEL:

Charles C. Mark, Q.C.

for the appellants Roger Bard et al

Derek Nicholson

for the respondent Kenmar Doors Ltd.

Peter E. Chisholm

for the respondent Workers’ Compensation Board

HEARD AND ENDORSED:

September 1, 2004

On appeal from the order of Justice Toscano Roccamo of the Superior Court of Justice dated May 21, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellants argue that the motions judge erred in dismissing this matter on the basis that she lacked jurisdiction because, at its core, the motion was in the nature of a judicial review application. In support of that submission, they assert that the Superior Court of Justice has inherent jurisdiction to control its own process and to decline to approve a settlement, particularly where the party seeking to implement the settlement is found to have acted with a want of good faith. They further argue that the process deficiencies identified by Power J. of the Superior Court of Justice in his reasons dated April 12, 2002 were not remedied.

[2] We would not give effect to these submissions in this case, for two reasons. First, although the Superior Court has clear jurisdiction to decline to approve a settlement, where its approval is required, that power does not trump the provisions of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. The Board’s decision to compromise this action was a decision reached in the exercise of a statutory power of decision. On this ground alone, any challenge of that decision by the appellants is properly the subject of a judicial review application before the Divisional Court.

[3] Second, the appellants’ arguments of continuing procedural unfairness and want of good faith by the Board are matters properly to be raised in any judicial review application that may be brought by them. These assertions, even if established, do not confer jurisdiction on the Superior Court to entertain a matter that is otherwise in the nature of an application for judicial review of an administrative tribunal’s exercise of a statutory power of decision.

[4] The appeal is dismissed. The respondents are entitled to their costs of this appeal, on a partial indemnity basis, fixed in the amount of $5,000 for the Board and the amount of $2,500 for Kenmar, both inclusive of disbursements and Goods and Services Tax and both payable in the normal course.