CITATION: The Estate of Nikolaus R. Holz v. Ministry of Transportation, 2024 ONSC 2176
DIVISIONAL COURT FILE NO.: 718/23
DATE: 20240415
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: The Estate of Nikolaus R. Holz and The Estate of Ellen I. Holz Appellant
AND:
His Majesty The King in Right of The Province of Ontario, as represented by The Minister of Transportation for the Province of Ontario (“MTO”) Respondent
BEFORE: Justice O’Brien
COUNSEL: N. Holz, Self-Represented
J. Boyczuk, for the Ministry of the Attorney General
B. Watterton, for the Ontario Land Tribunal
HEARD: Motion In-Writing
ENDORSEMENT
Overview
[1] This is an endorsement pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Proceedings before the Tribunal
[2] The appellant brought an action under the Expropriations Act, R.S.O. 1990, c. E-26 before the Ontario Land Tribunal for compensation arising from the expropriation by the Ministry of Transportation of certain portions of a property in the Town of Powassen, Ontario.
[3] The Tribunal held a case conference with the purpose of making a procedural order to govern the hearing. At the case conference, an issue arose concerning the status of Mr. Holz. The Tribunal noted he was not a party to the proceeding in his personal capacity although he had alleged he should be appointed as the executor of the estate of his late parents and the sole beneficiary of that estate. Given that the estate was the claimant, in its August 25, 2023 procedural order, the Tribunal directed Mr. Holz to retain counsel to represent the estate. The Tribunal also addressed a request for party status by Eric Polten, a lawyer who had formerly acted for the parents of Mr. Holz and also for Mr. Holz. Mr. Polten claimed to be a mortgagee in respect of the property. The Tribunal declined to grant Mr. Polten party status. Finally, the Tribunal made various procedural orders governing the hearing, such as the timing of the hearing, establishing a list of issues for the hearing, directing the exchange of documents, and others.
[4] By letter dated October 31, 2023, the Tribunal denied Mr. Holz’s request for review of the August 25 decision. The Chair of the Tribunal saw no reason to interfere with the findings or to question the August 25 decision.
Proceedings in this Court
[5] As the case management judge in this matter, upon receipt of Mr. Holz’s intake form and notice of appeal, I issued the following directions raising a question about this court’s jurisdiction over the appeal:
Honourable Justice O’Brien directs as follows.
This is an appeal from an order of the Ontario Land Tribunal dated October 31, 2023 in which the Tribunal dismissed a request to review a Tribunal order dated August 25, 2023. The August 25 order sets procedural terms governing the proceeding. Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874 provides that legislation conferring a right to appeal a decision of an administrative tribunal confers only a right of appeal of a final decision, absent clear language indicating a right to appeal an interlocutory decision.
There may be an issue regarding this court’s jurisdiction over the appeal. Within 14 days, the parties are asked to provide a brief statement of their position on this issue (no more than two paragraphs), after which the court will determine next steps.
[6] In response to the directions, the respondent ministry and the Tribunal took the position that the appeal was outside Divisional Court jurisdiction because Mr. Holz sought to appeal an interlocutory order, which was not permitted by the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 (OLTA).
[7] Mr. Holz took the position that Penney did not govern and that the court should instead consider Roosma v. Ford Motor Co. of Canada, 1988 5633 (Div Ct). He submitted this case is more “aggravating” than Roosma because “it contains violations of the Criminal Code and an attempt to completely ignore evidence provided by a Freedom of Information request that clearly shows reliance on a ‘false pretense document’ (see section 362(1)(c) of the Criminal Code)!” Mr. Holz stated that the Tribunal decisions condoned criminal acts and Charter violations and should be considered final decisions.
[8] After receiving the parties’ positions, I released the following directions in which I asked the Registrar of the Divisional Court to issue a notice pursuant to r. 2.1.01:
Honourable Justice O’Brien directs as follows:
The court has received the positions of the parties with respect to the question of this court’s jurisdiction.
The Registrar for the Divisional Court is asked to issue a notice pursuant to r. 2.1.01 of the Rules of Civil Procedure. The court is concerned the appeal appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court because:
The appellant seeks to appeal an order of the Ontario Land Tribunal that sets out procedural terms governing the proceeding.
Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874 provides that legislation conferring a right to appeal a decision of an administrative tribunal confers only a right of appeal of a final decision, absent clear language indicating a right to appeal an interlocutory decision.
Section 24 of the Ontario Land Tribunal Act provides that a decision may only be appealed on a question of law. The language in the Act does not indicate a right to appeal an interlocutory decision of the Tribunal.
Therefore the court is concerned this appeal does not fall within the Divisional Court’s jurisdiction.
The appellant Mr. Holz has already responded briefly to the court’s request for his position on jurisdiction. He shall have a further entitlement to respond to the r. 2.1.01 notice. As set out in that notice, within 15 days after receiving the notice, he may file written submissions of no more than 10 pages responding to the notice. In his response, he is encouraged to address the court’s concerns as detailed above.
Accordingly as directed, please find attached notice issued by the Registrar pursuant to rule 2.1.
[9] On February 2, 2024, the Registrar issued a notice under r. 2.1.01. In response to the notice under r. 2.1, the appellant made the following submissions:
(1) Section 24 of the OLTA is not the relevant statutory provision. The proceeding is governed by s. 31 of the Expropriations Act. Mr. Holz submits that s. 31 authorizes appeals from interlocutory orders because it authorizes the Divisional Court to “make any decision or order that the Tribunal has power to make.”
(2) Penney does not apply since it related to the Licence Appeal Tribunal and not the Ontario Land Tribunal.
(3) The contract between Mr. Holz and Mr. Polten establishes that Mr. Polz is required to provide Mr. Holz with legal representation in the case.
(4) The Crown made an offer in this case based on a “false pretense” appraisal. The use, promotion or reliance on a “false pretense document” in Tribunal proceedings is prohibited by the Criminal Code.
(5) Any final Tribunal decision is not only a violation of human rights but also entails a criminal act. The consequences of such a decision cannot be rectified on appeal from a final decision.
(6) This case should be compared to Roosma because it engages human rights issues.
(7) Courts have a duty to uphold the law.
Analysis
[10] Having considered the appellant’s submissions, I conclude this appeal is frivolous or vexatious or otherwise an abuse of the process of the court. It is doomed to fail. I dismiss it pursuant to r. 2.1.01 for the following reasons:
[11] First, Penney provides that legislation conferring a right to appeal a decision of an administrative tribunal confers only a right of appeal of a final decision, absent clear language indicating a right to appeal an interlocutory decision.
[12] Penney was decided by this court recently and is the authoritative decision on this issue. In any event, Roosma, which Mr. Holz relies on, also concluded an interlocutory order of a tribunal could not be appealed to this court.
[13] The orders at issue in this case are interlocutory. They specify terms governing how the hearing will proceed, including that the estate must be represented by counsel. The substantive issues raised by Mr. Holz, for example regarding the allegedly false appraisal, can be raised at the hearing before the Tribunal. At the conclusion of that hearing, the Tribunal’s decision can be appealed to this court. Mr. Holz’s attempt to appeal the procedural ruling before the Tribunal holds its hearing leads to the fragmentation of an administrative process that the decision in Penney seeks to avoid.
[14] Second, s. 24 of the OLTA governs this appeal. The OLTA provides for the practices and procedures before the Tribunal, including with respect to case management conferences. While Mr. Holz’s proceeding before the Tribunal was brought under the Expropriations Act, the orders at issue were not made under the provisions of that act. In any event, s. 31(1) of the Expropriations Act provides only that “[a] decision or order of the Tribunal under this Act may be appealed to the Divisional Court…on a question of law or fact or both.” Under s. 31(3), it provides that on such an appeal, the court “may make any decision or order that the Tribunal has the power to make.” These provisions do not grant a right of appeal from an interlocutory order. Therefore, under either statute, there is no right of appeal from an interlocutory order.
[15] The Court of Appeal for Ontario has repeatedly highlighted that dismissal of a proceeding under r. 2.1.01 is a blunt instrument, reserved for the “clearest of cases”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8; Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA, at para. 43; Khan v. Law Society of Ontario, 2020 ONCA 320, at para. 7.
[16] An appeal is considered frivolous, vexatious and/or an abuse of process if it cannot possibly succeed: Awada v. Allstate, 2021 ONSC 8108, at para. 6.
[17] This is not a close call. This court does not have jurisdiction over this matter and the appeal cannot possibly succeed. The Tribunal proceedings must be permitted to proceed.
[18] Given my view that it is clear on the face of this matter that the court lacks jurisdiction, it was unnecessary to address the additional issue of whether Mr. Holz should be representing the appellant estate in this court.
Disposition
[19] The appeal is dismissed under r. 2.1.01.
O’Brien J
Date: April 15, 2024