Court File and Parties

CITATION: 1000758840 Ontario Ltd. v. City of Toronto, 2024 ONSC 4964

DIVISIONAL COURT FILE NO.: 264/24

DATE: 20240910

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: 1000758840 ONTARIO LTD. o/a NIAGARA NEIGHBOURS FOR COMMUNITY SAFETY, Applicant/Responding Party to Motion

AND:

THE CITY OF TORONTO and ST. FELIX CENTRE, Respondents/Moving Parties

BEFORE: Matheson J.

COUNSEL: Eric K. Gillespie, for the Applicant/Responding Party to Motion Kyle Gossen, for the St. Felix Centre, Respondent/Moving Party Alison Barclay, for the City of Toronto, Respondent/Moving Party

HEARD at Toronto: September 9, 2024, by video-conference

ENDORSEMENT

[1] The moving parties seek security for the costs of this appeal. 1000758840 Ontario Inc. appeals from the decision of Brownstone J. dated March 28, 2024 (the Decision) dismissing its application regarding a proposal to locate a shelter for people experiencing homelessness on Adelaide Street, to be operated by the St. Felix Centre.

[2] The Decision ruled that the application ought to have been brought as an appeal under s. 25 of the Building Code and proceeded to decide the application as if it had been brought in that way. That part of the Decision is not under appeal.

[3] The legal framework for this motion is not at issue. It is a motion under r. 61.06(1) of the Rules of Civil Procedure. The moving parties rely on subparagraph (b), which imports r. 56.01, and in this case the moving parties rely on r. 56.01(1)(d). As result, the moving parties invite me to order security for costs because the appellant is a corporation with insufficient assets to pay the costs of the moving parties in relation to the appeal. Under this rule, I may make such order as is just. The appellant admits that it has insufficient assets to pay costs but also does not say that it is impecunious.

[4] Given the admissions made by the appellant, the issues are focused on the strength of the merits of the appeal, the nature of the issues and the parties, and other submissions about the overall justice of the case.

[5] Beginning with the merits of the appeal, both sides rely on 2311888 Ontario Inc. v Ross, 2017 ONSC 1295, At para. 17, Ross says that in the circumstances of this case, the appellant must show that the appeal has a good chance of success on the merits. The appellant phrases the test as having good and proper grounds. In this case, I do not find that the different wordings used by counsel changes the outcome of the motion.

[6] Very briefly, the St. Felix Centre is a registered charity and not-for-profit organization that provides social services, including the operation of shelters. After another shelter closed, it applied for a certificate to confirm that the proposed use of the Adelaide property as a municipal shelter would comply with zoning bylaws. The City’s acting Chief Building Officer (CBO) issued a certificate saying that the submitted proposal complied with the applicable City Zoning by-law(s) and all other applicable laws. The appellant, operating as the Niagara Neighbours for Community Safety, then brought its application submitting that the proposal was not a permitted use under the applicable zoning by-laws.

[7] On the appeal in this Court, the appellant submits that the Decision is in error for two reasons:

(1) because it relied on the issue of prematurity and a related case that were raised for the first time in the reasons for decision; and,

(2) because the court below declined to accept the opinion evidence put forward by the appellant.

[8] The first issue relates to that part of the proposal that plans for a patio on a City boulevard adjoining the building, to be enclosed by a fence. The proposal noted that before the patio could go forward, a permit had to be obtained from the City’s transportation services department and that decision had not yet been made. The patio/fence and the need for a permit was part of the proposal and also raised in the underlying application. It was in that context that the Decision referred to prematurity. The moving parties submit that despite the choice of wording and case, the judge was referring to the patio/fence/permit open issue. They further submit that the reference to prematurity was in the alternative and obiter. They therefore submit that the appeal on this issue does not have a good chance of success.

[9] I agree that this ground of appeal is weak. The patio/fence/permit requirement was part of the dialogue. Further, the patio issue only arises under one of the two by-laws that could permit the proposal. The Decision upheld the CBO’s decision under both applicable by-laws. There is a strong argument that the brief discussion about prematurity is obiter.

[10] Moving to the expert evidence issue, the Decision noted that the appellant’s expert affidavit asserted several legal conclusions in relation to the patio. The judge applied the long-settled legal principle that parties may not tender expert evidence on domestic law and found that the expert overstepped by providing legal opinion. There was legal opinion in the affidavit. The proposed appeal on this ground is weak.

[11] The appellant also submits that having disregarded its expert’s opinions, the judge ought to have rejected the respondent’s affidavit evidence too. It is not clear that the appellant objected to that affidavit below. Even if it did, there is a good argument that the evidence is not comparable. I therefore conclude that this ground of appeal is also weak.

[12] Moving to the holistic analysis that is referred to in the case law, and the justice of case, I have taken into account the many submissions about the nature of the appellant, the nature of the issues, the need to get to the issues efficiently and the prospect of future litigation if the permit for the fence is granted and challenged. I have also taken into account the moving parties’ submissions about the St. Felix Centre, a charity, and the City, incurring unrecoverable costs, and their forbearance in not also seeking security for the costs order already made below totaling more than $40,000, which may never be paid.

[13] Having regard for all the submissions made, I exercise my discretion to make an order for security for costs of this appeal as follows: the appellant shall pay into Court $2,500 as security for the costs of the City and $5,000 as security for the costs of the St. Felix Centre, within 60 days from today.

[14] Bearing in mind the agreement between the parties on costs, I order that the appellant pay costs of this motion fixed at a total of $4,000, all inclusive.

Matheson J.

Date: September 10, 2024