Court of Appeal for Ontario

Date: 20210707 Docket: M51952 (M51357)

Watt, Pardu and Trotter JJ.A.

Between:

The Corporation of the Town of Fort Erie Responding Party

and

2312810 Ontario Inc., Daniel Leo Lino Favero, Linda Favero and Leo Joseph Favero Moving Parties/Applicants

Counsel: Stephanie DiGiuseppe and Karen Heath, for the moving parties/applicants Terrence H. Hill, for the responding party

Heard and released orally: July 2, 2021 by video conference

Reasons for Decision

[1] The applicants seek an order setting aside the order of the motion judge dismissing their application for leave to appeal under s. 131(1) of the Provincial Offences Act.

[2] Casting the decision of the motion judge refusing leave to appeal as based upon or amounting to jurisdictional error, they invoke the decision in Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 29 O.R. (3d) 612 (Ont. C.A.), in support. They concede that the decision in Hillmond has not previously been applied in circumstances governed by s. 131 of the POA.

[3] It is well-settled, as the motion judge said, that leave to appeal should be granted only in exceptional cases. Indeed, s. 131(2) of the POA limits the granting of leave to cases in which the motion judge is satisfied that, in the particular circumstances, it is essential:

i. in the public interest; or ii. for the due administration of justice

that leave be granted.

[4] Section 131(3) of the POA enacts a prohibition against appeals or reviews from decisions on leave motions under s. 131(1).

[5] In our view, this application, however characterized, is barred by s. 131(3) of the POA. Further, even if Hillmond Investments were applicable, an issue which we need not decide, we are not persuaded that there was any jurisdictional failure on the part of the motion judge that would justify the order sought.

[6] The application is dismissed. There is no order as to costs.

“David Watt J.A.”

“G. Pardu J.A.”

“Gary Trotter J.A.”