COURT FILE NO.: 241/09
DATE: 20091002
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MARY RUFFOLO and LUIGINO RUFFOLO
Appellants
(Responding Parties)
- and -
LINDA JACKSON
Respondent
(Moving Party)
Eric K. Gillespie and
Julia Croome, for the Appellant (Responding Parties)
Morris Manning, Q.C., for the Respondent (Moving Party)
HEARD at Toronto: October 2, 2009
jennings J.: (Orally)
[1] The moving party applies for an order quashing the notice of appeal dated May 12, 2009 seeking to appeal the order of Kelly J. made on April 14, 2009, in which she dismissed the application made by the appellants for an order that the respondent Jackson breached ss.5(1) and 5(2) of the Municipal Conflict of Interest Act, R.S.O. 1990, c.M50 (the “Act”), and for an order quashing the supplementary notice of appeal dated June 19, 2009 amending the notice of appeal dated May 12, 2009 by adding additional statutory grounds.
[2] Kelly J.’s order simply dismissed the application. At the conclusion of her reasons she did express the opinion that if she was wrong in her findings that the respondent had not breached s.5 of the Act, the defence of inadvertence was open to the respondent pursuant to s.10(2) of the Act. The only provision for appeal in the Act is pursuant to s.11 restricted to orders made under s.10. No s.10 order was made in this case.
[3] The only case to which I was referred that is directly on all fours with the issues arising in this motion is that of Van Schyndel v. Harrell 1991 7235 (ON SC), [1991] 6 O.R. (3d) 335 (Div. Ct.). Leave to appeal to the Court of Appeal was refused on January 20, 1992. The majority of the Court in that decision confirmed that the Act was a Code unto itself and that any right of appeal had to be given by the statute.
[4] Accordingly, no appeal lay unless an order had been made under s.10. That authority is, of course, binding upon me and I must follow it notwithstanding counsel’s submissions based upon the dissenting opinion of Rosenberg J.A. I see no help for the respondent in the provisions of s.6(1)(b) of the Courts of Justice Act.
[5] I confess that it is troubling that two panels of this Court have apparently entertained appeals under the Act where no orders under s.10 appear to have been made. I refer to Re Greene v. Borins (1985), 1985 2137 (ON SC), 50 O.R. (2d) 513, a decision preceding the decision in Van Schyndel and the decision of Murphy v. Foster, [2000] 97 ACWS (3d) 542, a decision subsequent to the decision in Van Schyndel.
[6] In neither of these cases does the issue of a general right of appeal appear to have been raised or addressed. Rather, both courts simply assumed jurisdiction. These decisions, however, do not in my opinion, permit me to ignore the principles of stare decisis.
[7] Lastly, I have no jurisdiction to make an order under s.110 of the Courts of Justice Act, pursuant to the limited appellant’s rights given in the Act, the only court to which the appellant could turn, was this court.
[8] Accordingly, the application to quash the two notices of appeal must succeed.
COSTS
[9] Having had the advantage of submissions on costs, I observe as follows: Mr. Manning seeks costs on a partial indemnity basis at the sum of $10,000.00, all inclusive which includes $1,300.00 for disbursements and GST. Mr. Gillespie submits that costs should not be awarded or if they are to be awarded, fixed in the sum of $2,500.00. I have no quarrel with the rates charged by Mr. Manning on a partial indemnity basis which are well within the range of costs awarded in this Court. I take into account Mr. Gillespie’s submission that the point is perhaps a novel one in the sense that the jurisdiction issue appears to have been overlooked by two panels of this Court, one before and one after the case which I found to be controlling. That said, it must have been apparent to counsel that the case was controlling and the resolution of the issue on the appeal was perhaps more heavily weighted in Mr. Manning’s favour than for Mr. Gillespie. Under the circumstances, and bearing in mind the principles of Boucher v. Certified General Accountants dealing with the reasonable expectations of the parties with respect to costs of a
motion of this nature, I think the sum of $6,000.00, all inclusive will be appropriate and I so order.
[10] I endorse the Motion Record: “For oral reasons given today, motion to quash allowed; both notices of appeal quashed. Costs to the moving party fixed at $6,000.00.”
JENNINGS J.
Date of Reasons for Judgment: October 2, 2009
Date of Release: October 7, 2009
COURT FILE NO.: 241/09
DATE: 20091002
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MARY RUFFOLO and LUIGINO RUFFOLO
Appellants
(Responding Parties)
- and -
LINDA JACKSON
Respondent
(Moving Party)
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: October 2, 2009
Date of Release: October 7, 2009