Court of Appeal for Ontario

2012 ONCA 81

Date: 2012-02-07

Docket: C53873

Before: Doherty, LaForme and Hoy JJ.A.

Between:

Curactive Organic Skin Care Ltd., in its own capacity and as representative of a class

Appellant

and

Her Majesty the Queen in right of Ontario, The Corporation of the City of Toronto and Toronto Transit Commission

Respondent

Proceedings under the Class Proceedings Act, 1992

Counsel:

Stephen A. Edell, for the appellant, Curactive Organic Skin Care Ltd.

Graham Rempe, for the respondent, City of Toronto

Kathryn Chalmers and Patrick G. Duffy, for the respondent, Toronto Transit Commission

Heard: January 19, 2012

On appeal from the order of Justice Paul Perell of the Superior Court of Justice, dated April 6, 2011, with reasons reported at 2011 ONSC 2041.

Endorsement

[1] The motion judge found that Curactive’s claim brought under the Class Proceedings Act, 1992, S.O. 1992, c 6 was, in substance, one for “injurious affection” and that such claims fall within the exclusive jurisdiction of the Ontario Municipal Board (the OMB). Because of the jurisdictional result, the motion judge dismissed Curative’s action under Rule 21.01(3)(a). Curactive argues in this court that the motion judge was wrong in dismissing Curative’s action. We disagree.

[2] “Injurious affection”, is defined in s. 1 of the Expropriations Act, R.S.O. 1990, c. E.26. It essentially means such reduction in the market value of the land, and such personal and business damages resulting from the construction of the works by a statutory authority. Compensation claims for injurious affection under this statute are to be resolved either through mediation before a board of negotiation, or adjudication by the OMB.

[3] Contrary to the appellants’ assertion, the court’s jurisdiction can indeed be ousted in favour of an administrative tribunal through clear, explicit and unambiguous language in a statute: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, at paras. 42-45. In Curactive’s action, the combination of the Expropriations Act and Ontario Municipal Board Act, R.S.O. 1990, c. O.28, s. 36, clearly confers jurisdiction over injurious affection claims on the OMB.

[4] That Curactive’s action proceeded under the Class Proceedings Act, 1992, S.O. 1992, c 6 does not alter the jurisdictional result. As the motion judge affirmed at para. 36, the Class Proceedings Act, 1992 is a procedural statute and does not confer substantive law jurisdiction on the courts: see [Bisaillon v. Concordia University, 2006 SCC 19](https://www.canlii.org/en/ca/scc/doc/2006/2006scc19/2006s