Court File and Parties
COURT FILE NO.: CV-12-0189 DATE: 2017-03-16 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
IAN BODNAR Plaintiff – and – THE CORPORATION OF THE CITY OF THUNDER BAY Defendant
COUNSEL: M. Cupello, for the Plaintiff D. Latta, for the Defendant
HEARD: Via Written Submissions
SMITH J.
Decision on Motion
[1] This is a motion for leave to appeal to the Divisional Court from the decision of Newton J. dated September 20, 2016 dismissing the motion of the City of Thunder Bay for summary judgment in the matter of Bodnar v. Thunder Bay (City), 2016 ONSC 5894, brought pursuant to Rule 62.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Procedural History and Background
[2] The Defendant in this action, the Corporation of the City of Thunder Bay (the “City”), brought a motion for partial summary judgment to dismiss the claim of the Plaintiff, Ian Bodnar, (“Bodnar”) who had commenced an action against the City for a declaration as to which of two Rural Access Road permits was the true and valid permit.
[3] The basis for the summary judgment motion was the applicability of the doctrine of res judicata (issue estoppel) or whether Bodnar’s action constituted an abuse of process. The City’s motion was premised on the argument that the issue had already been decided by the Ontario Municipal Board (the “OMB”) in Bodnar v. Thunder Bay (City), [2014] O.M.B.D. No. 705 (the “OMB Decision”).
[4] Newton J. held that the doctrine of res judicata (issue estoppel) did not apply, that the action was not an abuse of process and he dismissed the City’s motion for summary judgment.
The Dispute and the OMB Decision
[5] The initial dispute centred on a Rural Road Access Permit granted by the City to Bodnar on February 6, 1996 which granted an extension of the road known as Red Pine Way so that the road could access certain lots.
[6] To obtain the permit, Bodnar completed an application which was approved by the City and became the Permit in 1996 (the “Permit”). The Permit included lot numbers 64, 63, and 62 as well as lot numbers 65, 66, 67, 68, 69, 70, 45, 46, 47, 48, 49, 50, and 51. The application for the Permit in the City’s files listed only lots 64, 63, and 62.
[7] On September 5, 1996, the City opened 500 metres of Red Pine Way, which did not extend to all of the lots on the Permit in Bodnar’s possession.
[8] On October 10, 2000, the City adopted a new official plan (the “Official Plan”) which prohibited new roads or extensions in the area encompassed by Bodnar’s Permit. The Official Plan came into effect in and around March 2002.
[9] Bodnar then applied for an amendment to the Official Plan and the City passed a resolution approving the amendment on the basis of the Permit.
[10] At a City Council meeting held without notice to Bodnar, the proposed bylaw amendment was defeated. Bodnar appealed the decision of City Council to the OMB.
[11] Bodnar argued before the OMB that the application in his possession was the valid Permit. The City took the position that the valid Permit provided access to only lots 62, 63, and 64 and that the validity of the permit was beyond the jurisdiction of the OMB.
[12] At para. 78 of its decision, the OMB stated that the validity and enforceability of the Permit involved questions of law that were beyond the OMB’s jurisdiction. The OMB went on to find that even if the Permit were valid, it would require sufficient planning evidence to determine if the amendment was appropriate. The OMB found it could not approve the amendment because it lacked a planning basis and foundation for the approval and because the evidence before it did not establish that the past permission given to Bodnar allowed the extension to the west of Lot 64.
The Summary Judgment Motion
[13] Following the OMB Decision, Bodnar brought an action against the City for a declaration as to which of the two permits was the true Permit and for a declaration that the benefits from the Permit remain valid (the “Main Action”).
[14] The City then brought a motion for summary judgment to dismiss the Main Action on the basis that the issue of the validity of the Permit had already been decided in the OMB Decision.
[15] After reviewing the law on res judicata (issue estoppel) and abuse of process, Newton J. dismissed the City’s motion for summary judgment.
[16] Newton J. agreed with the OMB that it did not have jurisdiction to determine which of the two existing permits was the valid Permit. At paragraphs 24 to 26 of his decision, he also found that the OMB’s statements relating to the validity of the Permit were (1) obiter dicta and (2) not fundamental to the decision and that, accordingly, the doctrine of res judicata (issue estoppel) did not apply. Newton J. found that the same analysis applied to the argument that the action was an abuse of process.
[17] The City brings this motion to obtain leave to appeal the decision of Newton J. to the Divisional Court of Ontario.
The Test for Leave to Appeal
[18] It is recognized that leave to appeal to the Divisional Court should not be easily granted and that the test to be met by an applicant is a very strict one.
[19] Rule 62.02(4) (a) and (b) of the Rules of Civil Procedure sets out the test that applies for granting leave to appeal. Both branches of the rule (a) and (b) involve a two-part test. To satisfy a court that leave to appeal should be granted, an applicant need only meet one branch of the rule. However, each branch must be read conjunctively.
[20] Rule 62.02(4) reads:
62.02(4)(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
62.01(4)(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.
Rule 62.02(4)(a)
[21] The test under rule 62.02(4)(a) has two branches. First, an applicant must show that there is a conflicting decision by another judge in Ontario or elsewhere on the matter involved in the proposed appeal. Second, an applicant must satisfy the court that it is desirable that leave to appeal be granted.
[22] A judge who exercises his or her discretion when the circumstances of the case are different than in other jurisprudence is not necessarily making a “conflicting decision.”
[23] A decision of a motion’s judge is entitled to considerable deference. Therefore, in order to be successful on a motion for leave to appeal, it is necessary for the appellant to demonstrate that there is a difference in the principles chosen by the motions judge as a guide to the exercise of discretion, and not simply a different set of facts leading to a different conclusion (Nikore v. Proper, 2010 ONSC 2307, 101 O.R. (3d) 469 (Div. Ct.), at para. 33; Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.), at para. 7).
[24] The Amended Statement of Claim requests the determination of two issues:
(1) A finding of fact as to which version of two Permits is the real Permit; and
(2) That one of the two versions of the Permit is “valid.”
[25] The City submitted on the motion that the first issue was already decided by the OMB, the plaintiff should be prevented from re-litigating that issue and, that the issue of the validity of the true Permit, as decided by the OMB, should be the only live issue in the civil action.
Finding
[26] I find that the requirements of rule 62.02(4)(a) have not been met. The City has not demonstrated that the decision of Newton J. conflicts with another decision in Ontario or elsewhere nor has it shown that it is desirable that leave to appeal be granted.
Rule 62.02(4)(b)
[27] The test under rule 62.02(4)(b) contains two branches. To succeed, the applicant must satisfy the court that (1) there is good reason to doubt the correctness of the motion judge’s decision and (2) that the appeal raises matters of general importance (Bell ExpressVu Limited Partnership v. Morgan (2008), 67 C.P.C. (6th) 263 (Ont. Div. Ct.), at paras. 1-3).
[28] The phrase “good reason to doubt the correctness of a decision” does not require a conclusion that the decision in question was wrong or even probably wrong. Nor does it require that the judge hearing the leave motion would have decided it differently had he or she been presiding as the motion judge. The test is whether the decision is open to serious debate. (Judson v. Mitchele, 2011 ONSC 6004 at para 15, 108 O.R. (3d) 129. See also Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.), at p. 284; Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.); Tsiloakis v. Sethi)
[29] The City argues that there are five (5) reasons to doubt the correctness of the decision: (1) the conclusion that the same analysis applies equally to issue estoppel and abuse of process; (2) the conclusion that certain findings of the OMB were obiter dicta; (3) the conclusion that certain findings were not fundamental to the OMB Decision; (4) the failure to consider relevant factors in applying the doctrine of abuse of process; and (5) the failure to provide reasons for not exercising the discretion to apply the doctrine of abuse of process.
[30] The position of the City is that the decision of Newton J. is incorrect because he should have held that the action brought by Bodnar was barred by the doctrine of res judicata (issue estoppel) and failed to properly exercise his discretion in dismissing the City’s motion because it should have been clear that it was manifestly unfair, an abuse of process and contrary to the interests of justice to allow Bodnar to re-litigate the issue decided by the OMB.
[31] By way of response, Bodnar argues that the decision in question is correct and specifically: (1) correctly applied the doctrines of issue estoppel and abuse of process; (2) correctly identified that the comments on the narrow issue of the validity of the Permit were obiter dicta; (3) correctly identified that the validity of the Permit was not fundamental to the OMB Decision which was based on planning evidence alone; (4) correctly identified the differences between issue estoppel and abuse of process; and (5) provided sufficient reasons as to why abuse of process did not apply.
[32] It is well recognized that judges have an inherent and residual discretion to prevent an abuse of the court’s process (Toronto (City) v. C.U.P.E, [2003] 2 S.C.R. 77, at para. 35). The doctrine engages the inherent power of the court to prevent the misuse of its procedure, in a way that would bring the administration of justice into disrepute.
[33] I do not agree with the City that Newton J. failed to exercise his discretion properly. The exercise of judicial discretion is afforded significant respect and deference. It was well within Justice Newton’s discretion to rule as he did that the application that the doctrine of res judicata (issue estoppel) did not apply or to find that the action commenced by Bodnar was not an abuse of process.
[34] It is my finding that there is no good reason to doubt the correctness of the decision and that the City has failed to show that the decision is open to serious debate.
[35] The City maintains that the second part of the rule 62.02(4)(b) has been met because the proposed appeal involves matters of such importance that leave to appeal should be granted.
[36] The argument of the City with respect to the importance of the issue is set out in its factum as follows:
The issues in this motion deal with the consideration that must be given to an administrative tribunal’s ability to make findings of fact and the extent that a court can go behind the plain language as set out in the decision of that tribunal to determine what facts may be considered fundamental to its decision, contrary to the tribunal’s own assertions that such findings of fact were necessary and critical to its decision puts in doubt the correctness of the motion judge’s decision.
The issue of the application of the doctrine of abuse of process by relitigation of issues already decided by another tribunal (in this specific case, the OMB) is broader than this case and applies generally to all decisions of a specialized tribunal, which of necessity and mandate, approach and decide questions in relation to their specialty and have those critical factual findings potentially decided differently in another forum. Consideration of the doctrine of abuse of process is designed to prevent such an outcome unless warranted, and where a repetitious proceeding is indicated, failure to fully consider whether the doctrine is available puts the reputation of the justice system at risk contrary to the express duty of the court.
No less of an interest is that of the general public and residents of organized municipalities in determining the force and effect findings of the OMB in terms of land use planning and development when such matters are put squarely in front of the Board by an applicant in possible judicial review of such findings.
In addition, the application of the doctrine of abuse of process, as concerned as the doctrine is with preventing unfairness to a litigant facing exactly the same issue in two different forums, is applicable to broader litigation and the administration of justice.
[37] For the purpose of rule 62.02(4)(b), matters of importance refer “to matters of general importance, not matters of particular importance relevant only to the litigants. General importance relates to matters of public importance and matters relevant to the development of the law and the administration of justice” (Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.), at p. 113).
[38] While the matters at issue are of great importance to the parties before me, I do not find that they are matters of such general public importance that leave to appeal should be granted.
Finding
[39] The application of the City for leave to appeal is dismissed.
[40] The parties may address the issue of costs by submitting written arguments not to exceed three pages in length.
The Hon. Mr. Justice G. P. Smith Released: March 16, 2017