CITATION: Herd v. The Port Severn Campers Association, 2010 ONSC 1567
COURT FILE NO.: DC 09-176JR
DATE: March 12, 2010
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CAL HERD AND KELLY HERD
Applicant
- and -
THE PORT SEVERN CAMPERS ASSOCIATION
Respondent
John Grant, counsel for the Applicants
John Rose, counsel for the Respondent
HEARD: February 23, 2010
MILANETTI J.
[1] There were initially two motions before me:
(1) For leave to bring the matter before Superior Court on urgency grounds (as the delay that would be required for an application to Divisional Court would involve a failure of justice), and then
(2) to set aside the decision of the Board of Directors of the Port Severn Campers Association.
[2] The second motion was brought by The Port Severn Campers Association and seeks to dismiss the main motion on jurisdictional grounds.
[3] Despite my initial view that both should be heard by the same judge on a long motion hearing, counsel persuaded me to hear at least the second jurisdictional motion on a regular motion day. This proved a mistake as the matter was well in excess of the one hour motions day time limit, and I had no benefit of factums that would typically be required on such matters.
[4] The motion I ultimately heard sought:
(1) Dismissal of the application,
(2) In the alternative, an order requiring it to be heard before the Divisional Court,
(3) In the alternative, an order requiring it to be heard by the Superior Court in Bracebridge.
[5] The grounds for the motion were:
(1) The Respondent is a non-share capital corporation incorporated pursuant to the Corporations Act. It is a private association and its board does not exercise a statutory power;
(2) The Applicant has brought this application for judicial review of a decision of the Board of Directors;
(3) Applications for Judicial Review are to be heard by the Divisional Court except in the case of an emergency;
(4) There is no emergency or urgency to this application;
(5) The subject matter of the proceedings is in the District Municipality of Muskoka which court is located in Bracebridge; and
(6) Judicial Review Procedures Act.
[6] I was told that the Association held an emergency Board meeting on Saturday, August 29th, 2009, at its offices to deal with an allegation of drunkenness, theft, and damage to a disabled member’s golf cart early that morning.
[7] It is alleged that the 17 year old son of the applicants was involved in the episode. As such, steps were taken to have him barred from the park for a period of time. The decision of the Board was communicated to the Herd’s on August 30th, 2009.
[8] The Association is a non-profit Ontario Corporation without share of capital under the Corporations Act. It is a private association whose Board does not exercise any statutory power.
[9] The Port Severn Campers Association operates a trailer park known as Wildwood By The Severn in the Township of Georgian Bay. The applicants, Cal and Kelly Herd, are two of the 225 members of the Association, and have been since August 1990. The Association is regulated by a Membership Agreement and By-laws. The Membership Agreement provides that the Association manages the park.
[10] The respondent asked me to quash the application as the Court has no jurisdiction to grant judicial review absent the decision of a statutory authority. They argue that certiorari is not typically available for a review of a decision of a private club. The decision in issue was based on a contract between the members of the association.
[11] The respondent provided many cases which considered Section 2 of the Judicial Review Procedures Act (JRPA). Of the cases presented me, it would appear that the decision most often cited is that of Justice Steele speaking for the Divisional Court in Pestell v. Kitchener-Waterloo Real Estate Board, Inc. (1982), 34 OR (2d) 476, as adapted by the Divisional Court later in McIntyre v. Kitchener-Waterloo Real Estate Board, [2004] O.J. No. 2214.
[12] Both cases limit application for judicial review to review of the exercise of statutory power. Justice Steele concedes that while these applicants might have rights against the Board by way of damages, (which might include a claim for an injunction to restrain an action contrary to a private right), there is no power under either of the headings of Section 2(1) of the JRPA that gives the applicants the right to seek judicial review. A similar decision was made by Justice Campbell in D’Cruz v. Field Hockey Ontario, [1997] O.J. No. 4365.
[13] The applicants speak of the urgency of the application (as the trailer park opens May 1st, 2001) and argue natural justice as the basis for this application.
[14] In terms of urgency, I do not accept this to be justified. The decision in question was rendered on August 30th, 2009. The failure of the applicant to pursue relief earlier, does not now make this an urgent situation. I particularly note the irony of the fact that the Divisional Court was sitting in Hamilton the very week I heard this motion. There have been other Divisional Court sittings since August 30th, 2009.
[15] In terms of natural justice, the applicant essentially argues the merits of his case – he does not argue that judicial review is the appropriate course. I was provided little law in this regard. The first case provided me by the applicant – Davis v. United Church of Canada; Hobbs v. United Church of Canada (1992), 92 D.LR. (4th) 678, did not help as judicial review was available as the United Church came into being under a Parliamentary Act and thus “the proceedings which they took” fell within the parameters of judicial review. The second case Iwasiw v. Essex Golf & Country Club could support a judicial review approach, but I was provided little argument relating to it. None of the respondent’s cases on point were distinguished for me.
[16] This is the decision of a Board of an Association, made under by-laws that allow them to make such decisions. The by-laws contemplate appeal procedures if members are unhappy with decisions being made. I do not accept that this is the sort of case contemplated by the JRPA. As such, the respondent’s motion to dismiss the application is granted; I have no jurisdiction to judicially review the decision of this private organization. The application is dismissed.
[17] If the parties are unable to resolve the issue of costs, they might provide me with written submissions no longer than two pages in length within 15 days of the release of this decision.
Milanetti J.
Released: March 12, 2010
CITATION: Herd v. The Port Severn Campers Association, 2010 ONSC 1567
COURT FILE NO.: DC 09-176JR
DATE: March 12, 2010
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CAL HERD AND KELLY HERD
Applicants
- and -
THE PORT SEVERN CAMPERS ASSOCIATION
Respondent
BEFORE: The Honourable Madam Justice J.A. Milanetti
COUNSEL: John Grant, counsel for the Applicants
John Rose, counsel for Respondent
REASONS FOR JUDGMENT
MILANETTI J.
JAM:mg
Released: March 12, 2010