ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-13-0179 & CV-13-0165
DATE: 2014-03-18

B E T W E E N:

Court File No: CV-13-0179

Daniel Ross Filipovic and Samantha Amy Filipovic,

Plaintiffs

• and –

The Corporation of the Municipality of Shuniah,

Defendant

Samantha Filipovic, for the Plaintiffs
Roderick Johansen, for the Defendant

• and –

Gary Grant Halls and Jacqueline Lindsay Halls,

Intervenors

Christopher Hacio, for the Intervenors

• and –

AND B E T W E E N:

Gregory Ralph Birston and Birston Family Trust,

Plaintiffs

• and –

The Corporation of the Municipality of Shuniah,

Defendant

• and –

Gary Grant Halls and Jacqueline Lindsay Halls,

Intervenors

Court File No: CV-13-0165
Gregory Birston, for the Plaintiffs
Roderick Johansen, for the Defendant
Christopher Hacio, for the Intervenors

HEARD: February 21 , 2014,

at Thunder Bay, Ontario

Mr. Justice F. Bruce Fitzpatrick

Reasons On Motion For Leave to Appeal

Overview

1The defendant Municipality (“Shuniah”) seeks leave to appeal the decision of Mr. Justice John Fregeau dated October 2, 2013 (the “Decision”). Shuniah also seeks leave to appeal the decision on costs, dated January 13, 2014, and seeks a stay of enforcement of both orders. The Decision grants the plaintiffs an interlocutory injunction which prohibits Shuniah from using or allowing the public use of Block 10, Plan 55 M-403 (the “Subject Property”) pending trial.

2The Subject Property is a small parcel of vacant land, .66 of an acre, which is on the shore of Lake Superior. It is zoned Public Open Space and is used by the public as a park in the summer. The Subject Property is known in the community as “O’Connor Point Beach”.

3The action involves a claim by plaintiff landowners adjacent to the Subject Property that Shuniah has failed to control public use of the lands such that an actionable nuisance has been created.

4On this leave motion, both parties set out long recitations of the facts in their written material. In my view, after reviewing the affidavits and factums filed and hearing oral submissions, there is not truly a great deal of dispute on the facts. Fregeau J.’s decision carefully and thoroughly set out the essence of the factual dispute between the parties in this matter. On an interim basis, applying the well-established law concerning interim injunctive relief commencing with the Supreme Court of Canada decision in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 [RJR], Fregeau J. determined: the plaintiffs had established their claim in nuisance was neither frivolous nor vexatious, there was a serious issue to be tried, the plaintiffs would suffer irreparable harm if the injunction was not granted, and the balance of convenience favoured the plaintiffs.

5[8] On this motion, rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [Rules], sets out the test for leave. Rule 62.02(4) reads as follows:

Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

6The parties agree that subrules 62.02(4)(a) and 62.02(4)(b) contain alternative bases upon which leave may be granted. For convenience, I refer to the test under 62.02(4)(a) as the “Conflicting Decisions Test” and the test under 62.02(4)(b) as the “Doubt the Correctness Test”.

7It is important to note that both tests have dual aspects. The Conflicting Decisions Test requires the moving party to convince the court to find both that the decision at bar conflicts with a decision of another judge or court in Ontario and that it is desirable that leave be granted. The Doubt the Correctness Test requires a moving party to convince the court that there is a good reason to doubt the correctness of the order and that the proposed appeal involves important matters beyond the immediate concern of the parties before the Court.

Conflicting Decisions Test

8I agree with the position of the plaintiffs that Shuniah has not satisfied the Conflicting Decisions Test. The various cases referred to by Shuniah clearly did not demonstrate that the decision at issue is in conflict with the general principles established in the jurisprudence. In his decision, Fregreau J. followed well-established law concerning interim injunctions to determine that it was appropriate to grant the relief requested by the plaintiffs. However, the practical effect of the decision of Fregeau J. appears to be unique. The uniqueness of the order and the practical effect of the interim injunction do take us to the second aspect of the test for leave under rule 62.02.

Doubt the Correctness Test

9With respect to the Doubt the Correctness Test, the parties, in their submissions and written factums, agreed that the phrase “good reason to doubt the correctness of a decision” in rule 62.02(4)(b) does not require a conclusion that the decision was wrong or even probably wrong. The test is whether the decision is open to serious debate. In this respect, I was referred to the decisions of Ash v. Corp. of Lloyd’s (1992), 1992 7659 (ON CA), 9 O.R. (3d) 755 (C.A.) and Kassian Estate v. Canada, 2013 ONSC 892, 114 O.R. (3d) 617.

10On this motion, Shuniah raised an argument that was not as directly or succinctly put to Fregeau J. as it was to this court. Shuniah argues that the Superior Court does not have the jurisdiction to grant interim or permanent injunctive relief to the extent sought by the plaintiffs. Shuniah argues that the practical effect of the injunction granted by Fregeau J. is to deny Shuniah and the public of any use of the Subject Property. This represents an interference with, or a changing of, a policy decision of an elected body. Shuniah relies on the body of public law that holds that government policy decisions are exempt from tortious claims, or the imposition of a duty of care in situations that arise from pure policy decisions, so that governments are not restricted in making decisions based on social, political or economic factors (Brown v. British Columbia (Minister of Transportation and Highways), 1994 121 (SCC), [1994] 1 S.C.R. 420 at para. 27).

11The Subject Property was vested in the municipality as a condition of approval of a plan for subdivision for other lands which include the cottage properties now owned by the plaintiffs. Shuniah argues that this condition was a policy decision. It is not subject to being overturned by a court, directly or indirectly, unless the policy is unconstitutional or ultra vires the elected body. Further, Shuniah argues its decision to designate the lands “Public Open Space” was a policy decision as well.

12Shuniah readily admits that the Superior Court has a supervisory jurisdiction over the implementation of any policy decision made by an elected body. However, Shuniah argues this interim decision has the practical effect of overturning a policy decision as it stops completely the use of the lands by Shuniah for the purposes for which they were originally designated or any purpose.

13Shuniah argues this decision has an impact beyond the private interests of these parties. It involves questions of the extent that municipalities may be required to halt all land uses on a particular property on an interim basis where there is an allegation of nuisance made by adjoining land owners.

14The plaintiff landowners resist this argument, claiming the designation of the lands at first instance was not a government policy decision and that in any event, the effect of the decision is confined to these immediate parties.

15In this matter I agree with the arguments made by Shuniah concerning the second branch of the test under rule 62.02(4)(b). The injunction bars all use of the lands by the municipality pending trial. While this argument was not expressly made to Fregeau J., I am of the view that the extent of the injunction granted puts Shuniah in the very difficult position of having to restrict a use of their lands such that a serious debate is raised as to the extent of court oversight of a government’s actions when using its own lands. I find this decision is open to serious debate. I also agree that the extent of a court’s authority to absolutely prohibit a particular land use by a municipality raises matters of provincial importance that warrant clarification and resolution by a higher level of judicial authority.

16Accordingly, leave to appeal both the injunction order and the cost order is granted.

Stay of the Injunction

17Shuniah has asked for a stay of both the injunction and the order for costs. In my view, the provisions of rule 63.01(1) acts to stay the order for costs. However, a stay for the injunction is a different matter.

18In RJR cited above, the Supreme Court states that the test for a stay is the same as the three-fold test for granting an interim injunction. In my view, the analysis of Fregeau J. in applying the RJR tests was sound concerning this matter. My decision to grant leave arises from the practical result of Fregeau J.’s reasoning, not from the nature of, or any errors with, the reasoning itself.

19I agree with the reasoning of Fregeau J., that the plaintiffs’ claim is neither frivolous or vexatious and that there is a serious issue to be tried. In determining whether or not to grant a stay, I must decide if compliance with the interim order will cause irreparable harm and what is the balance of convenience.

20While I agree that long-term, the issue of the nature of the injunctive relief granted by Fregeau J. warrants review, the short-term interests of both sides can be reasonably accommodated without a stay. Given the winter we have just experienced in Thunder Bay, I expect there will not be a great demand by the public to be swimming at O’Connor Point Beach until at least July. As this matter should be heard in June, the issue can be resolved one way or the other by the time public demand for access reaches a regular level. Accordingly, I have determined that Shuniah will not suffer irreparable harm if the injunction is not stayed and that the balance of convenience favours leaving the injunction in place. Accordingly, the order of Fregeau J. dated October 2, 2013 is not stayed pending the hearing of the appeal.

Costs and Directions

21Given the unique nature of the problems raised by this litigation, it seems to me incumbent on the parties to make full effort to have this matter heard at the next sittings of the Divisional Court which are scheduled for Thunder Bay in June, 2014. In order to encourage both parties to work to ensure this matter is heard in a timely way, I will remain seized with the matter for the purposes of resolving any issues required for the expediting of the hearing of the appeal. If appointments or contested hearings are necessary, the parties should contact the trial co-ordinator to arrange such before me.

22Also, because the arguments raised by Shuniah were not fully, or forcefully made before Fregeau J., in my view, there should be no costs awarded to Shuniah for this leave motion.

The Hon. Mr. Justice F. Bruce Fitzpatrick

Released: March 18, 2014

COURT FILE NO.: CV-13-0179 & CV-13-0165
DATE: 2014-03-18

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

Daniel Ross Filipovic and Samantha Amy Filipovic,

Plaintiffs

• and –

The Corporation of the Municipality of Shuniah,

Defendant

• and –

Gary Grant Halls and Jacqueline Lindsay Halls,

Intervenors