917488 Ontario Inc. v. Gore Bay (Town), 2016 ONSC 1072
CITATION: 917488 Ontario Inc. v. Gore Bay (Town), 2016 ONSC 1072
COURT FILE NO.: 3640-14 OT
DATE: 20160212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
917488 Ontario Inc.
Applicant
– and –
The Corporation of the Municipality of the Town of Gore Bay
Moving Party/Respondent
Laura Pinkerton, for the Applicant
Stefan Zhelev, for the Moving Party/ Respondent
HEARD: June 29 and November 25, 2015
DECISION ON MOTION
CORNELL, J.
Introduction
[1] This proceeding can only be described as chaotic and confusing. I use the word “proceeding” advisedly as there is no action or application associated with the relief that is being sought. In order to provide for some structure, I will refer to the original moving party as the applicant and the Corporation of the Municipality of Town of Gore Bay (“Gore Bay”) as the respondent.
[2] In 1975, the Ontario Municipal Board (the “OMB”) made an order approving the imposition of sewer rates by the Town of Gore Bay. In 1980, the OMB made a further order approving the installation of an extension of the town’s sewer works along Water Street. This sewer main ends at the property owned by an entity known as Gordon’s Lodge. At the time of this proceeding, such property was registered to 917488 Ontario Inc. Laura Pinkerton and Andrew Pinkerton are the shareholders of this corporation.
Procedural Background
[3] The parties have taken a number of interim steps. One such step was to permit Laura Pinkerton, who is not a lawyer, to represent the corporate party.
[4] The process began when Ms. Pinkerton attended at the court office in Gore Bay and requested that enforcement proceedings be taken by the Superior Court of Justice to enforce the two O.M.B. orders. As a result of concerns raised by court staff, enforcement file ENF11-004(Gore Bay) was converted to court file number C-14-0009(Gore Bay). At a later point in time, the file was transferred to Sudbury on consent where it was assigned file number C-3640-14 OT.
[5] As this process unfolded, various notices of motion were filed by the applicant claiming extensive relief that I now set out verbatim:
An Order removing the Firm Weaver Simmons, G. McAndrew as Solicitor of Record for the Respondent.
An Order dispensing with any and all requirements and/or Rules in relationship to the Corporation of the Town of Gore Bay as may be appropriate;
An Order reporting the Firm Weaver Simmons to the Law Society of Upper Canada for conflict of interest (rule 2.04). Rule 2; Rules of Professional Conduct – Relationship to Clients When Client an Organization (1.1).
An Order requiring the Firm Weaver Simmons to return all Legal Costs for the Company known as Gordon’s Lodge (owned by 917488 Ontario Inc.) for the period of 1997-2012 in the amount of $350,000 CDN without delay.
An Order requiring the Firm Weaver Simmons to payout and discharge the Mortgages on the Lands known as Gordon’s Lodge (owned by 917488 Ontario Inc.) without delay.
An Order requiring the Firm Weaver Simmons to return all Mortgage Lender and Mortgage Broker Fees incurred on Gordon’s Lodge (owned by 917488 Ontario Inc.) in the amount of $300,000 CDN without delay.
An Order for direction for Gordon’s Lodge (917488 Ontario Inc.) to seek redress on behalf of 917488 Ontario Inc. dating as far back as 1998 by their Representative for the received revenues by Weaver Simmons to Gordon’s Lodge between the years of 1998-2007 in the amount of estimated of $5,500,000 CDN, interception of proceeds of crime for a company known as Gordon’s Lodge (owned by 917488 Ontario Inc.) an active business.
An Order for costs as may be appropriate; Such further and other grounds as the Applicant may advise and this Honourable Court deems fit.
The Issue
[6] During the course of one of the interim steps in this proceeding, the question was raised as to whether there was an originating process from which the applicant could seek relief. Gore Bay responded by bringing this motion seeking to strike out the proceedings brought by the applicant on the basis that such proceedings failed to comply with Rule 14 of the Rules of Civil Procedure. This is the issue that I am now called upon to decide.
Agreed Facts/Admissions
[7] The parties acknowledged that there was no originating process in the form of an action or application within the meaning of Rule 1.03 and Rule 14 of the Rules of Civil Procedure. The parties also acknowledged that the applicant’s property has been serviced by what was characterized as an “effluent line” that connects to the trunk sewer that was installed on Water Street. The difficulty as presented by the applicant lies in the fact that the effluent line only removes wastewater from the applicant’s septic tank and not the sludge or solids that remain in the tank.
Analysis
[8] The applicant relies upon s. 86(1) of the Ontario Municipal Board Act R.S.O. 1980, c. O.28 (the “OMB Act”) which provides as follows:
- (1) A certified copy of any order or decision made by the Board under this Act or any general or special Act may be filed with the Superior Court of Justice, and thereupon becomes and is enforceable as a judgment or order of the Superior Court of Justice to the same effect, but the order or decision may nevertheless be rescinded or varied by the Board. R.S.O. 1990, c. O.28, s. 86 (1); 2006, c. 19, Sched. C, s. 1(1).
(2) It is optional with the Board to adopt the method provided by this section for enforcing its orders or decisions or to enforce them by its own action. R.S.O. 1990, c. O.28, s. 86 (2).
[9] Gore Bay responds by pointing out that the OMB “has exclusive jurisdiction in all cases and in respect to all matters in which jurisdiction is conferred upon it by this act or by any other general or special act”: see s. 36 OMB Act.
[10] The OMB has sweeping powers to deal with enforcement of OMB orders: see ss. 51 and 52 OMB Act.
[11] Beyond this, the OMB has all the powers, rights and privileges as are vested in the Superior Court of Justice with respect to, among other things, enforcement of its orders: see s. 38 OMB Act.
[12] Counsel for Gore Bay drew my attention to the case of Lungo v. Ehioghae, O.J. No. 4442, a decision of the Superior Court of Justice where it was held that the Residential Tenancies Act, 2006, S.O. 2006, c. 17, provided exclusive jurisdiction in favour of the landlord and tenant board in connection with residential tenancy disputes. In finding that in such case, the court’s jurisdiction is ousted, the court cited Beach v. Moffatt (2005), 2005 CanLII 14309 (ON CA), 75 O.R. (3d) 383 (Ont. C.A.). The decision rendered by the Court of Appeal in Beach indicates that the jurisdiction of a Superior Court may be limited by statute.
[13] My attention was also drawn to the decision of the Ontario Court of Appeal in Najjar v. Brombow Developments Limited, 2015 ONCA 383. At para. 24 of that decision, the appellant brought a motion under s. 86 of the OMB Act to enforce certain terms of settlement. In that case, the court determined that the appellant ought to have moved before the OMB for further relief or to seek to have the order rescinded or varied. In coming to this decision, the court recognized that exclusive jurisdiction had been conferred on the OMB in order to make use of the knowledge and expertise of that tribunal. As pointed out in the moving party’s factum:
… the court should be reluctant to consider issuing an enforcement order under s. 86 of the OMB Act, at first instance, for three reasons. First, the OMB Act sets out an alternative route: s. 86(1) states that the “decision may nevertheless be rescinded or varied by the board.” and s. 86(2) gives the OMB additional responsibility for selecting the method of enforcing decisions.
[14] The 1975 OMB order simply authorizes Gore Bay to establish a sewer levy.
[15] The OMB order made in 1980 states as follows:
THE BOARD ORDERS that this application be granted, and that the Ministry of the Environment may provide sewage service to owners or occupants of the lands as set out in Schedule “A” hereto, annexed and signed by the secretary, and for such purpose the corporation may exercise all its powers and pass all requisite by-laws:
AND THE BOARD ORDERS that all the provisions of its aforesaid previous order shall apply to all properties which front or abut on the streets described in Schedule “A” hereto or which will be connected to the sewage works connected thereon.
[16] It is to be noted that the 1980 order states that the “Ministry of the Environment may provide sewage service” to owners or occupants on Water Street. Gordon’s Lodge abuts Water Street where the sewer main ends.
[17] As previously mentioned, the applicant’s property is connected to the sewer main by way of an effluent line. The crux of the matter lies in the applicant’s assertion that the sewer main needs to be lowered by approximately 17 feet in order to provide full sewage services to the applicant’s property.
[18] The applicant has obtained information that it would cost approximately $2,750,000 to undertake the work necessary to lower the sewer main by 17 feet. The applicant has made various efforts to have a writ of seizure and sale issued in this amount in the applicant’s favour against Gore Bay based upon the two OMB orders in question. The court staff refused the initial request and indicated that judicial direction would be required prior to the issuance of a writ of seizure and sale. After the applicant and respondent had filed a great deal of material and there had been a number of court appearances, the applicant attempted to usurp the process by submitting a basket motion requesting that such writ of seizure and sale be issued. Fortunately, the motion’s judge considering the material identified the problem and referred the request to me as I had become the de facto case management judge.
[19] The OMB undoubtedly utilized its engineering and other expertise in making the orders that are at issue. The OMB has the expertise to determine if there has been any default under the orders and if so, whether it is appropriate to direct some enforcement action. Beyond this, the OMB also has the ability to review, rescind, change, alter, or vary any decision, approval, or order made by it pursuant to s. 43 of the OMB Act.
[20] If enforcement of the orders is required, the OMB has the option of taking its own enforcement action or filing a certified copy of any such order with the Superior Court of Justice for enforcement pursuant to s. 86(1) and (2) of the OMB Act.
Conclusion
[21] For the reasons that have been outlined, I am of the opinion that the applicant’s efforts to initially enforce these OMB orders by way of Superior Court of Justice enforcement proceedings and to seek other relief must fail. This is not a case where I should exercise my discretion under Rule 2.01 to permit the applicant to re-constitute these proceedings. It is in the interest of justice that any dispute about the orders in question or efforts to enforce them should be considered by the OMB, the entity that made the orders in the first place.
[22] Accordingly, I grant the relief sought by Gore Bay and order that the attempted enforcement proceedings as well as the additional claims and relief sought by the applicant be dismissed. This order is made without prejudice to the applicant’s ability, if any, to seek relief from the Ontario Municipal Board in connection with such orders.
[23] As there has been no adjudication on the merits, this order is also without prejudice to the applicant commencing a new proceeding to pursue the claims that have been advanced apart from enforcement of the OMB orders, if so advised.
Costs
[24] Costs shall follow the event. I order that the applicant shall pay to Gore Bay costs fixed in an amount of $8,672.10 inclusive of disbursements and HST.
The Honourable Mr. Justice R. Dan Cornell
Released: February 12, 2016
CITATION: 917488 Ontario Inc. v. Gore Bay (Town), 2016 ONSC 1072
COURT FILE NO.: 3640-14 OT
DATE: 20160212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
917488 Ontario Inc.
Applicant
– and –
The Corporation of the Municipality of the Town of Gore Bay
Moving Party/Respondent
DECISION ON MOTION
Cornell, J.
Released: February 12, 2016