Millcraft Investment Corporation et al. v. Regional Assessment Commissioner, Region No. 3 and the City of Vanier

[Indexed as: Millcraft Investment Corp. v. Ontario (Regional Assessment Commissioner, Region No. 3)]

46 O.R. (3d) 685

[2000] O.J. No. 369

Court File No. 98-DV-261

Ontario Superior Court of Justice Divisional Court

Flinn, Jennings and Ferguson JJ.

February 3, 2000

Civil procedure -- Appeal -- Leave to appeal -- Divisional Court can only grant motion under s. 21(5) of Courts of Justice Act to set aside decision granting or denying leave to appeal made by single judge under s. 21(3) where single judge declined jurisdiction -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 21(3), (5).

The moving parties appealed their property assessments to the Ontario Municipal Board. The appeals were dismissed. The moving parties brought a motion under s. 21(3) of the Courts of Justice Act to a single judge of the Divisional Court for leave to appeal the decision of the O.M.B. The motions judge denied leave to appeal. The moving parties then brought a motion under s. 21(5) of the Act for an order setting aside the denial of leave and granting leave to appeal the decision of the O.M.B.

Held, the motion should be dismissed.

On a motion brought under s. 21(5) of the Courts of Justice Act seeking to set aside a decision granting or denying leave to appeal made by a single judge under s. 21(3), the Divisional Court can only grant the motion if it is established that the single judge "declined jurisdiction". The motions judge in this case denied leave to appeal after applying the correct test, and there was no basis to find that he declined jurisdiction.

MOTION for a review of a decision denying leave to appeal a decision of the Ontario Municipal Board.

Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 1996 413 (ON CA), 29 O.R. (3d) 612, 135 D.L.R. (4th) 471, 49 C.P.C. (3d) 262 (C.A.), apld Milton (Town) v. Kalmoni Establishments Inc. (1996), 1996 1534 (ON CA), 31 O.R. (3d) 157, 4 C.P.C. (4th) 45 (C.A.); Overseas Missionary Fellowship v. 578369 Ontario Ltd. (1990), 73 O.R. (2d) 73, 38 O.A.C. 278 (C.A.), consd Other cases referred to Brennan v. Ontario (Minister of Municipal Affairs) (1987), 1987 4228 (ON SC), 59 O.R. (2d) 526, 38 D.L.R. (4th) 240 (Div. Ct.); Sobeys Inc. v. United Food & Commercial Workers' International Union, Local 1000A (1993), 1993 8659 (ON SC), 12 O.R. (3d) 157, 93 C.L.L.C. 14,041 (Div. Ct.); Standard Industries Ltd. v. Ontario (Regional Assessment Commissioner, Region No. 13) (1993), 15 C.P.C. (3d) 19 (Ont. Div. Ct.) Statutes referred to Assessment Act, R.S.O. 1990, c. A.31, s. 43(1) Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 19(1)(b), 21 Ontario Municipal Board Act, R.S.O. 1990, c. O.28, s. 96(1)

Richard N. Poole and John W. Dickie, for moving parties. James M. Canapini, for responding parties.

The judgment of the court was delivered by

[1] FERGUSON J.: -- In my view the dispositive issue on this motion is the issue of what test the court should apply under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 on a motion seeking review of a decision granting or refusing leave to appeal.

[2] The moving parties appealed their property assessments to the Ontario Municipal Board pursuant to s. 43(1) of the Assessment Act, R.S.O. 1990, c. A.31. The O.M.B. held a hearing and dismissed the appeals.

[3] There is a provision for appeals from the decision of the O.M.B. in the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 which states:

96(1) Subject to the provisions of Part IV, an appeal lies from the Board to the Divisional Court, with leave of the Divisional Court, on a question of law.

[4] The Courts of Justice Act provides:

21(1) A proceeding in the Divisional Court shall be heard and determined by three judges sitting together.

(3) A motion in the Divisional Court shall be heard and determined by one judge, unless otherwise provided by the rules of court.

(4) A judge assigned to hear and determine a motion may adjourn it to a panel of the Divisional Court.

(5) A panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion.

[5] The moving parties brought a motion seeking leave in accordance with s. 21(3). Rutherford J. decided leave should not be granted. It is common ground that he applied the correct test which was laid down in Brennan v. Ontario (Minister of Municipal Affairs) (1987), 1987 4228 (ON SC), 59 O.R.(2d) 526, 38 D.L.R. (4th) 240 (Div. Ct.).

[6] The moving parties are now moving before this panel under s. 21(5) seeking an order setting aside the denial of leave to appeal and granting leave to appeal the decision of the O.M.B.

Position of the Moving Parties

[7] Counsel for the moving parties notes that s. 21(5) does not restrict this court's discretion to review and set aside the decision of Rutherford J. At the hearing before us he reargued all the issues which were before the O.M.B. and took the position that we should consider de novo the issue of whether the moving parties had met the test set down in Brennan. Alternatively, he took the position that if we concluded that a decision denying leave to appeal should be set aside only in exceptional circumstances, then it was sufficient that in addition to meeting the test in Brennan, he establish that the issue of law was important.

Analysis

[8] This kind of motion was discussed in Milton (Town) v. Kalmoni Establishments Inc. (1996), 1996 1534 (ON CA), 31 O.R. (3d) 157, 4 C.P.C. (4th) 45 (C.A.) which dealt with the very same kind of motion as is before us: a motion seeking to set aside a decision on a motion for leave to appeal from a decision of the O.M.B. In Milton the court decided that "if there is a right to have the order reviewed at all" the proper forum is a panel of the Divisional Court pursuant to s. 21(5) of the Courts of Justice Act. In reaching this conclusion the court overruled the decision in Standard Industries Ltd. v. Ontario (Regional Assessment Commissioner, Region No. 13) (1993), 15 C.P.C. (3d) 19 (Div. Ct.) which had ruled that the proper forum was the Court of Appeal.

[9] As noted, the Court of Appeal did not decide whether or not the Divisional Court could review a decision granting or refusing leave to appeal. It appeared to query whether this was possible and cited decisions of the Court of Appeal which, in somewhat different circumstances, ruled that courts should not review such decisions at all or should do so only in special circumstances.

[10] In the result, the Court of Appeal referred the issue to the Divisional Court. I requested the Divisional Court office to search the court file to see what the Divisional Court decided but was advised that no endorsement could be found.

[11] The scope of review possible under s. 21(5) was discussed in the earlier decision in Overseas Missionary Fellowship v. 578369 Ontario Ltd. (1990), 73 O.R. (2d) 73 at p. 75, 38 O.A.C. 278 (C.A.) where the court said: "In the context of s. 16(3)(b) [now s. 21(5)] we think that by the use of 'set aside or vary' it was intended to give the panel all the powers of the single judge with respect to the proper disposition of the motion".

[12] That quote alone would appear to support the position of the moving parties before us that this court can decide the issue of leave to appeal de novo. As I shall discuss, that may be the general scope of review under s. 21(5) but it is important to bear in mind that there are many kinds of motions which might be reviewed under that provision. I am satisfied that the Court of Appeal did not intend its comment to apply to the review of motions for leave to appeal. Neither Overseas Missionary Fellowship nor any of the cases it cited involved a decision on a leave to appeal motion. The reasons in Overseas Missionary Fellowship and Milton were both written by Morden A.C.J.O. who actually includes this quote in the reasons in Milton where he nevertheless queries whether there is any right of review at all of a decision on a leave motion even under s. 21(5).

[13] The parties have found no decision on the issue of the scope of review of a decision to grant or refuse leave to appeal by a single judge of the Divisional Court under s. 21(5) and so we must decide it.

[14] It appears to me that the wording of s. 21(5) clearly gives a panel of the Divisional Court the jurisdiction to review the decision of a single Divisional Court judge who hears any kind of motion.

[15] However, it also seems to me that the Court of Appeal has laid down some principles which restrict the discretion of this court when the decision under review is one granting or refusing leave to appeal.

[16] In Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 1996 413 (ON CA), 29 O.R. (3d) 612, 135 D.L.R. (4th) 471 (C.A.) the court generally discussed the issue of whether or not there should be a review of a decision to grant or refuse leave to appeal. The court reviewed decisions from Canadian and English courts which reasoned that such a procedure would negate the purpose of requiring leave. The analysis was this: leave to appeal is required so that the full appellate court will not have to deal with unnecessary or frivolous appeals; to allow a review of such a decision would require that the full court review all the issues which were dealt with on hearing of the leave motion and on the hearing from which leave to appeal was sought; to permit this would defeat the purpose of the requirement for leave. The Court of Appeal said this reasoning was compelling.

[17] This reasoning applies directly to the case before us. If no leave to appeal were required, the Divisional Court would hear the issues only once. Here, leave is required to appeal a decision of the O.M.B. If we followed the course proposed by counsel for the moving parties the Divisional Court would hear the matter twice, and if leave to appeal were granted by us, three times: once by a single judge, once by a panel under s. 21(5) and, if leave were granted, once by a panel to hear the actual appeal. The requirement of obtaining leave is obviously intended to reduce not increase the number of appellate hearings.

[18] In Hillmond the court reviewed a number of cases in which the courts strictly interpreted rules and statutory provisions so as to exclude any right of review of a decision on a motion for leave to appeal and to restrict the scope of review where it appeared some review was clearly contemplated.

[19] In Hillmond the court was dealing with an attempt to review a leave decision which it found could be reviewed under s. 19(1) of the Courts of Justice Act which provides:

19(1) An appeal lies to the Divisional Court from,

(b) an interlocutory order of a judge of the Superior Court of Justice with leave as provided in the rules of court;

[20] The court concluded that under that provision leave could only be granted if it were shown that the judge who granted or refused leave had declined jurisdiction. The similarity of s. 19(1)(b) to s. 21(5) is striking. Neither provision restricts the scope of review but it is clear that the Court of Appeal ruled that the scope must be narrow in order not to defeat the purpose of requiring leave to appeal.

[21] I hasten to point out that there are many motions other than leave applications which fall under these provisions and the restriction would not apply to them. For example, in hearing a motion to set aside an order staying implementation of an order of the Ontario Labour Relations Board pending the hearing of an application for judicial review, the Divisional Court literally applied the quotation from Overseas Missionary and concluded it should look at all the merits of the motion without being restricted to what was placed before the judge of first instance: Sobeys Inc. v. United Food & Commercial Workers' International Union, Local 1000A (1993), 1993 8659 (ON SC), 12 O.R. (3d) 157, 93 C.L.L.C. 14,041 (Div. Ct.).

[22] In Hillmond the Court of Appeal adopted the test of "declining jurisdiction" from decisions of the Supreme Court of Canada (at p. 624):

It is argued that there must be an avenue of redress in exceptional cases. I agree. If a General Division judge mistakenly declines jurisdiction on a leave motion by acting upon a wrong principle, redress should be had to an appellate court. . . . .

The general principle relating to redress in exceptional circumstances was stated succinctly by Cartwright J. in Canadian Utilities Ltd. v. Deputy Minister of National Revenue, supra, at p. 63:

It appears to me to have been consistently held in our courts and in the courts of England that where a statute grants a right of appeal conditionally upon leave to appeal being granted by a specified tribunal there is no appeal from the decision of that tribunal to refuse leave, provided that the tribunal has not mistakenly declined jurisdiction but has reached a decision on the merits of the application.

(Emphasis added)

Cartwright J. then continued in language applicable to this case, also at p. 63:

In the case at bar, it is clear that the learned President considered the applications for leave to appeal on their merits and reached the conclusion that the questions on which leave to appeal was sought were not questions of law and that, in any event, this was not the kind of case in which leave should be given. In no sense did he decline jurisdiction.

(Emphasis added)

[23] I have underlined two phrases in the quotation which I shall now discuss.

[24] There can be no doubt that the Court of Appeal was adopting this as a general principle applicable to the review of all decisions to grant or refuse leave to appeal. By finding that the general principle applied to s. 19(1)(b) the court indicated that the general principle should restrict the discretion of a court in reviewing leave to appeal decisions even under a provision which literally gives the reviewing court an unfettered discretion. Section 21(5) is such a provision.

[25] It is also clear that in saying the motion judge would have declined jurisdiction by "acting on a wrong principle", the court meant that the reviewing court could set aside a decision on a leave to appeal motion if the judge applied the wrong test in deciding whether or not to grant leave; it did not mean the court could set it aside because the judge arrived at the wrong answer after applying the correct test.

[26] In Hillmond the court mentioned other examples of what would constitute "declining jurisdiction": where the judge disregarded a statutory right, or failed to give the responding party a right to be heard (at p. 624).

[27] There is no suggestion that there was anything in the matter before us that could be said to amount to a declining of jurisdiction by Rutherford J. He applied the correct test in deciding the motion for leave. The only complaint is that the moving parties contend he erred in his conclusion. It is clear from Hillmond that that is not sufficient reason to review his decision. I should add that I make no finding as to whether or not his decision was correct as that is irrelevant on this motion before us. The only issue for us to decide is whether or not Rutherford J. "declined jurisdiction".

Conclusion

[28] I conclude that on a motion brought under s. 21(5) of the Courts of Justice Act seeking to set aside a decision granting or denying leave to appeal made by a single judge under s. 21(3), the Divisional Court can only grant the motion if it is established that the single judge "declined jurisdiction".

[29] Rutherford J. denied leave to appeal after applying the correct test and there is no basis to find he declined jurisdiction.

[30] Consequently, I conclude this motion must be dismissed and it would be inappropriate to comment on the issues on which leave to appeal was sought.

Costs

[31] I would invite written submissions on costs to be sent to the Registrar of the Divisional Court in Ottawa in accordance with the following timetable: from the respondent within ten days, from the applicant within a further ten days, any reply from the respondent within a further ten days.

Motion dismissed.