COURT FILE NO.: D06-0004
DATE: 2006-05-26
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
11911260 ONTARIO LIMITED (c.o.b. FOAMING BRUSH CAR WASH),
Fawzia Saeed-Cockar, for the Applicant
Applicant
- and -
CITY OF THUNDER BAY and A.Q. THUNDER BAY PROPERTIES LTD.,
Rosalie A. Evans, for the Respondent City of Thunder Bay
Ian J. Lord, for the Respondent A.Q. Thunder Bay Properties Ltd.
Respondents
HEARD: May 18, 2006, at Thunder Bay, Ontario
Zelinski J.
Reasons For Judgment
[1] On February 23, 2006, an Application for Judicial Review (AJR) of an Ontario Municipal Board (OMB) decision (Decision 0251) rendered by F. G. Farrell on January 24, 2006, was commenced by the Applicant, 1191160 Ontario Limited (c.o.b. Foaming Brush Car Wash) (Foaming Brush). Foaming Brush seeks, in its application, to have Decision 0251 quashed.
[2] The decision itself was rendered in answer to Foaming Brush’s appeal against two zoning by-law amendments enacted by the City of Thunder Bay (TBay). The first, on May 16, 2005, was a site specific by-law amendment to permit the Respondent, A. Q. Thunder Bay Properties Ltd. (AQ) to operate a Fitness Centre in a former Canadian Tire premises. That by-law defined a Fitness Centre, and then allowed, as a permitted use on the site, a Fitness Centre, as previously defined. The second amendment enacted on May 30, 2005, amended the zoning by-law itself. It added, as a permitted use in named zones, a Fitness Centre as defined in the May 16, 2005, by-law. The latter by-law, Foaming Brush contends, was intended to rectify permitted use deficiencies applicable to an earlier conversion of another Canadian Tire store into another Fitness Centre operated by AQ.
[3] Today AQ seeks an order dismissing the AJR for delay. In the alternative AQ seeks procedural directions and a timetable for service of materials and scheduling intended to assure an expedited review.
[4] TBay has filed no materials although present. Ms. Evans’ representations were necessarily limited as a consequence of that fact. TBay supports AG’s motion.
[5] The order to dismiss is sought “pursuant to R. 68.06(1) of the Rules of Civil Procedure,” and rules 14.01(1) and 14.05(1). Rules 68.04(1) and 68.06(3) are also referred to. Foaming Brush, although advising the responding parties of the fact of the issue of its AJR, has not served that application or delivered and filed its Application Record and Factum. It has, therefore, not perfected the AJR nor completed a Certificate of Perfection as required by r. 68.05(1).
[6] Ms. Cockar, counsel for Foaming Brush, initially sought an adjournment of this motion on the basis of a purported need for a costs order from the OMB. Costs were reserved in Decision 0251. The Application for the adjournment was also stated to be required in order to permit cross-examination of Alan Quesnel, on his affidavit sworn April 26, 2006, in support of this motion to dismiss.
[7] It is the position of Mr. Lord, counsel for AQ that, in extensive exchanges of correspondence between counsel, neither of these proposed reasons for an adjournment was advanced. The result of any adjournment, he argues, is further delay. The Divisional Court has been scheduled to sit in Thunder Bay in the week of June 5, 2006. Its list has now been “closed.” Its next sittings here are scheduled in December 2006.
[8] I am satisfied that delay can have significant consequences for AQ. It claims to have had to obtain extensions in its Agreement of purchase and sale with Canadian Tire because its offer is conditional upon appropriate zoning approval. Further extensions, it claims, could be problematic. The subject premises must also be protected by Canadian Tire against deterioration during such extensions. Renovation costs, it claims, are increasing concurrent with delay.
[9] I have denied the adjournment.
[10] While Foaming Brush suggests that its formalization of its AJR has necessarily been put on hold until the costs orders referred to are released by the OMB, the costs orders are not essential today. This motion is procedurally based.
[11] Mr. Quesnel’s affidavit, and any cross-examination thereon, are similarly not considerations which identify with procedure.
[12] Following the denial of the adjournment request Ms. Cockar acknowledged that she was prepared to argue on the merits of the motion, and proceedings continued on that basis.
The Relevant Rules:
[13] As noted, the order sought by AQ is “pursuant to R. 68.06(1).” That rule incorporates, by reference, the requirements of rules 68.04(1) and 68.05(1). As stated, r. 68.06(3) is also referred to in the grounds. The relevant portions of these rules read as follows:
68.04(1) Applicant – The applicant shall deliver an application record and a factum,
(a) where the nature of the application requires a record of the proceeding before the court or tribunal whose decision is to be reviewed, within thirty days after the record is filed; or
(b) where the nature of the application does not require such a record within thirty days after the application commenced.
68.05(1) The applicant shall file with the application record a certificate of perfection,
(a) stating that all the material required to be filed by the applicant for the hearing of the application has been filed; and
(b) setting out, with respect to every party to the application and any other person entitled by statute or by an order under rule 13.03 (intervention) to be heard on the application,
(i) the name, address and telephone number of the party’s or other person’s lawyer, or
(ii) the name, address for service and telephone number of the party or other person, if acting in person.
68.06(1) Motion by respondent – Where the applicant has not,
(a) delivered an application record and factum within the time prescribed by subrule 68.04(1); or
(b) filed a certificate of perfection as required by subrule 68.05(1),
the respondent may make a motion to the registrar at the place of hearing, on ten days notice to the applicant, to have the application dismissed for delay.
68.06(3) Registrar to dismiss where default not cured – Where the applicant does not cure the default within ten days after service of a notice under subrule (1) or (2) or such longer period as a judge of the Divisional Court allows, the registrar shall make an order in Form 68C dismissing the application for delay, with costs.
Application of the Rules:
[14] As stipulated, r. 68.06(1) defines the timeline for delivery of Foaming Brush’s requisite materials by reference to r. 68.04(1). That rule has different commencement dates for the time within which the Applicant’s filings must take place. Rule 68.04(1)(b), when applicable, requires that the requisite application and factum be filed within 30 days after the AJR was commenced. I am satisfied that that subrule is not relevant as it is r. 68.04(1)(b) which governs Foaming Brush’s AJR. This is because, as argument in this motion developed, it became apparent that a record of the proceedings resulting in Decision 0251 is necessary. It is those proceedings themselves which are to be reviewed.
[15] The AJR sets out four grounds for review at this time. All relate to evidence which Foaming Brush contends was inadmissible but heard, or heard but inadmissible. It is therefore, as stated, r. 68.04(1)(a) that applies. In that result, the 30 day timeframe within which Foaming Brush must deliver its record and factum commences when the record of the OMB proceedings has been filed.
[16] Further, Mr. Lord has not satisfied me that the board’s cost disposition, reserved in its decision, is not an essential ingredient of that record. While costs ordered by the OMB were not critical in order to dispose of this motion, (as it is procedural), it is not unreasonable that Foaming Brush’s application may be amended to address costs issues if Foaming Brush concludes that costs too are to be reviewed.
[17] In any event, AQ was unable to state, as a fact, that the record of the proceedings has been filed by the OMB, on what date that might have occurred or what the requisite record (will) contain(s). It is Mr. Lord’s belief that OMB’s record is not normally available until the AJR is perfected. The apparent “chicken and egg” anomaly is that his client’s hands are tied until perfection of the AJR has occurred and perfection is not required in the absence of the filing of the OMB’s record.
[18] Whether this is the case, it is clear that the time within which Foaming Brush must deliver its Application Record, Factum and the requisite Certificate of Perfection (r. 68.05(1)) has not been established during argument on this motion.
[19] Moreover, it being impossible for the Registrar to determine, with confidence, that Foaming Brush did not deliver the appropriate documents within the appropriate time, consistent with r. 68.04(1), she declined to dismiss the AJR pursuant to r. 68.06(3). I am satisfied that she was correct in doing so. The same uncertainty continues to exist.
[20] The motion to dismiss must therefore fail.
[21] Ms. Cockar, on behalf of Foaming Brush, expressed her client’s willingness to fix reasonable timelines that will enable these matters to be finalized (as requested by AQ in its alternative claim for relief).
OMB Costs Issues:
[22] At the OMB hearing, counsel for AQ sought costs. In his reasons in Decision 0251 the learned member stated “… in accordance with the Board’s Rules of Practice and Procedure Mr. Corrent filed receipts to support the quantum of any award of costs and reserved his right to file additional receipts.” Mr. Poirier, then acting for Foaming Brush, was granted his own request to provide written submissions with respect to costs. Mr. Corrent was also given the opportunity of an extended period within which “… to provide written submissions for an award of costs in addition to his original submissions.” A timetable for the respective submissions was provided following which “… the Board will render a further decision and order the request for an award of costs against [Foaming Brush].” It is reasonable that a proceeding which invites costs considerations is not complete until costs are disposed of. Having that in mind, I requested counsel to assist me in determining when the hearing is, in fact, completed, and whether costs determinations are included as part of the record of the proceedings required to be completed by the OMB.
[23] While the AJR, as filed, does not presently contain any grounds which refer to costs it is difficult to conceive how or what costs issues might be developed until the costs orders are complete.
[24] In argument I was advised that, consistent with OMB policy, costs determinations are not normally completed until the resolution of the requested review. It was Foaming Brush that initially claimed to be waiting for the costs order. As a consequence of intervention, it was stated that OMB then agreed to release its costs conclusions if all of the parties consented. Foaming Brush, when advised of this, did not consent. I am now told that the Board will release its costs orders “imminently” notwithstanding the absence of the consent of Foaming Brush.
[25] Ms. Cockar agreed that, as part of the timelines, I should order that Foaming Brush consent to the Board’s release of its costs reasons whether or not that consent is still a precondition to release.
Conclusion:
[26] As indicated, the motion to dismiss the AJR is, itself, dismissed. The alternative relief sought is “an order determining procedural directions and setting a timetable for the service of materials and scheduling the [AJR] to be heard on an expedited basis.” Mr. Lord has presented a proposed timeline which Ms. Cockar has consented to with modest changes. One concern that I have is the degree to which, and manner by which, the judicial review can be expedited. I suggested, and Mr. Lord agreed, to an order being made that the review take place as soon as reasonably possible at a sittings of the Divisional Court anywhere in Ontario at which the hearing can reasonably be accommodated. Although not objecting to this, Ms. Cockar did not formally consent to such an order.
Timeline Order To Go As Follows:
[27] Timeline:
(1) The parties will each deliver its consent to the release of the OMB costs orders arising out of Decision 0251 within 24 hours of the receipt of these reasons;
(2) Foaming Brush will serve its Application for Judicial Review and file and serve its Application Record, Factum and Certificate of Perfection within 15 days after the receipt by it of the OMB costs order;
(3) The Respondent’s Application Record and Factum are be filed and served 10 days after its receipt the Foaming Brush materials;
(4) Cross-examinations, if any, are to be completed 30 days after materials are exchanged and filings completed;
(5) Subject to the refusal by Foaming Brush, on reasonable grounds, the AJR is to be heard after completion of cross-examinations a soon as reasonably possible at a sittings of the Divisional Court anywhere in Ontario at which the AJR can be accommodated.
[28] Finally, counsel have indicated costs of this motion are also in issue. Having regard to the dismissal of the primary relief sought in this motion (dismissal of the AJR), and Ms. Cockar’s accommodation of Mr. Lord’s proposed timeline, each party has had success. If either, or both, seek costs the party claiming costs will file and deliver its costs arguments and supporting materials within 15 days of receipt by it of these reasons. The other will deliver and file opposing arguments within 15 days thereafter.
The Hon. Mr. Justice R. E. Zelinski
Released: May 26, 2006
COURT FILE NO.: D06-0004
DATE: 2006-05-26
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
11911260 ONTARIO LIMITED (c.o.b. FOAMING BRUSH CAR WASH),
Applicant
- and –
CITY OF THUNDER BAY and A.Q. THUNDER BAY PROPERTIES LTD.,
Respondents
REASONS FOR JUDGMENT
Zelinski J.
Released: May 26, 2006