CITATION: Chapman v. The Corporation of the Town of Northeastern Manitoulin, 2021 ONSC 2743
DIVISIONAL COURT FILE NO.: 20-0000-2032
DATE: 2021/04/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and Kristjanson JJ.
BETWEEN:
Joseph Maxwell Chapman
Appellant
– and –
The Corporation of the Town of Northeastern Manitoulin and The Islands
Respondent
Joseph Maxwell Chapman on his own behalf
P. Courey, for the Respondent
HEARD by videoconference: April 12, 2021
The Court
[1] This is an appeal from the decision of the Local Planning Appeal Tribunal (the “Tribunal”) dated April 17, 2020. The decision at issue was the result of a motion in writing by the Respondent Town to dismiss without a hearing the Notice of Arbitration and Statement of Claim filed by the Appellant, Mr. Chapman, for damages for injurious affection. As set out in the Town’s Notice of Motion, the basis for its motion to dismiss was the allegation that Mr. Chapman’s claim was premature. After receiving written submissions from the parties, the Tribunal found as follows:
[54] Based upon the submissions and evidence, the Tribunal concludes that s. 4.6(1) of the SPPA provides the authority for the dismissal of the claim because the statutory requirements set out in the definition for injurious affection in s.1(1) of the Act and the requirement for filing in s. 22(1) of the Act have not been met. Therefore, the Tribunal will dismiss the claim as set out in the Notice of Arbitration and Statement of Claim under this provision.
[2] Section 4.6(1)(c) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 provides that a tribunal may (on its own motion) dismiss a proceeding without a hearing if “some aspect of the statutory requirements for bringing the proceeding has not been met”. However, s. 4.6 (2) requires that “before dismissing a proceeding under this section”, the tribunal must give notice of its intention to dismiss the proceeding and s. 4.6(3) requires that the “notice of intention to dismiss a proceeding shall set out the reasons for the dismissal”. The Tribunal never provided Mr. Chapman with notice that it was intending to dismiss his proceeding on the basis of s. 4.6(1)(c). The first time that s. 4.6(1)(c) was ever referred to in the proceedings was in the decision of the Tribunal that is under appeal. If Mr. Chapman had received notice of the Tribunal’s intention to dismiss his proceeding under s. 4.6(1)(c) he could have considered whether to withdraw or reconstitute his proceeding once construction was complete.
[3] On this basis the decision of the Tribunal must be set aside.
[4] During the course of oral submissions the Town indicated that if this Court set aside the Tribunal’s decision it would simply renew its motion to dismiss Mr. Chapman’s claim on the basis of prematurity and that if it was successful Mr. Chapman would have no right to bring a further claim. Normally, where a proceeding is dismissed for prematurity, this is done without prejudice to the claim later proceeding. To avoid this matter becoming circular, we would suggest to the parties that they either consent to Mr. Chapman’s claim being held in abeyance until construction is completed or that Mr. Chapman withdraw his claim with the right to bring it anew upon completion of the construction.
[5] For these reasons the appeal is allowed, and the decision of the Tribunal is set aside. As agreed by the parties, the Town shall pay Mr. Chapman his costs of the appeal, fixed in the amount of $2500.00.
Sachs J.
Backhouse J.
Kristjanson J.
Released: April 14, 2021
CITATION: Chapman v. The Corporation of the Town of Northeastern Manitoulin, 2021 ONSC 2743
DIVISIONAL COURT FILE NO.: 20-0000-2032
DATE: 2021/04/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and Kristjanson JJ.
BETWEEN:
Joseph Maxwell Chapman
Appellant
– and –
The Corporation of the Town of Northeastern Manitoulin and The Islands
Respondent
REASONS FOR JUDGMENT
BY THE COURT
Released: April 14, 2021