Court File and Parties

COURT FILE NO.: CV-18-00602217-0000 DATE: 20181130 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THOMAS MASTERS and NICOLE MASTERS, Applicants AND: CATARAQUI REGION CONSERVATION AUTHORITY, Respondent

BEFORE: Justice Glustein

COUNSEL: Arkadi Bouchelev, for the Applicants A.E. Fleming, for the Respondent

HEARD: November 23, 2018

Reasons for Decision

Nature of application and overview

[1] The applicants, Thomas Masters and Nicole Masters, bring this application to transfer an appeal before the Mining and Lands Tribunal (the “Tribunal”) to the Superior Court of Justice pursuant to section 107 of the Mining Act, R.S.O. 1990, c. M.14 (the “Mining Act”).

[2] The respondent, Cataraqui Region Conservation Authority (the “Authority”), opposes the application.

[3] Section 107 of the Mining Act provides the court with jurisdiction to transfer a proceeding brought before the Tribunal to the Superior Court of Justice if sought by “[a] party to a proceeding under this Act [the Mining Act]”.

[4] There are two issues raised by this application:

(i) Does the court have jurisdiction to transfer the appeal before the Tribunal to the Superior Court of Justice pursuant to s. 107?

Put differently, given that the appeal before the Tribunal arose from the refusal of the Authority under the Conservation Authorities Act, R.S.O. 1990, c. C.27 (the “CAA”) to grant a permit to the applicants for a pool house on their property, the issue is whether the applicants are parties “to a proceeding under” the Mining Act.

(ii) If the court has jurisdiction under s. 107, should the court exercise its discretion to transfer the appeal to the Superior Court of Justice?

[5] The applicants submit that:

(i) Since the appeal of their conservation dispute is delegated to the Tribunal by Ontario Regulation 571/00 (“O. Reg. 571/00”), it is a “proceeding under the [Mining Act]”. The applicants submit that since they were “brought before the Tribunal” for the appeal, the court has jurisdiction under s. 107 to transfer the appeal to the Superior Court of Justice; and

(ii) Based on the decisions of the court in Dupont v. Osborne, [1958] S.C.R. 535 (“Dupont”) and in Minescape Exploration Inc. v. Bolen, [1998] O.J. No. 1528 (Gen. Div.) (“Minescape”), the transfer sought by the applicants “should go unless the party applying is willing to accept the Commissioner as an arbitrator” (citing Dupont, at p. 544), as s. 107 provides a “safety valve” to ensure that disputes concerning “private civil and property rights” can be heard by the Superior Court of Justice (citing Minescape, at para. 26).

[6] The Authority submits:

(i) The applicants are parties to “proceeding under” the CAA, not under the Mining Act. They were “brought before the Tribunal” by way of delegated authority of the Minister of Natural Resources (the “Minister”) under O. Reg. 571/00 made under the Ministry of Natural Resources Act, R.S.O. 1990, c. M.31, which gave the Tribunal the powers of the Minister to hear appeals “under subsection 28(15) of the Conservation Authorities Act”. The applicants’ proceeding had nothing to do with the Mining Act, but rather was a permit dispute under the CAA.

It is clear from the facts of the case, the applicable legislation, and the principles of statutory interpretation that the applicants are not parties to a “proceeding under” the Mining Act, and as such, the court has no jurisdiction to transfer the matter from the Tribunal to the Superior Court of Justice; and

(ii) Even if the court had jurisdiction, the court should not exercise its discretion to transfer the appeal. The Authority challenges the applicants’ reliance on Dupont and Minescape, and in fact itself relies on those cases for the proposition that the court should only transfer an appeal when the issues on appeal are outside the specialized area of expertise of the tribunal and raise general questions of law. Since the issue on appeal is whether, under the CAA, the Authority ought to have granted a permit to the applicants to build a pool house in their desired location, no general issue of law is raised outside the expertise of the Tribunal, and as such, the court should not exercise its discretion to transfer the appeal to the Superior Court of Justice.

[7] For the reasons that follow, I agree with the submissions of the Authority and dismiss the application.

Facts

[8] The facts in the present case are straight-forward. Both parties filed brief affidavits, there were no cross-examinations, and the facts are not contested.

[9] Under Ontario Regulation 148/06 (“O. Reg. 148/06”), promulgated under the CAA, no person can undertake development within the regulatory floodplain and within a wetland.

[10] The applicants wanted to build a pool house in a particular location on their property in Gananoque (the “Property”). Prior to constructing the pool house, the applicants consulted with staff of the Authority and were advised that the location they preferred for the pool house could not be supported under the policies of the Authority. An alternative location on the Property was recommended that could be supported.

[11] The Authority subsequently received an anonymous complaint of building activity on the Property. After investigation, the Authority discovered that the applicants had nearly completed construction of the pool house at the location on the Property where the applicants were told the Authority would not support development.

[12] The applicants submitted their application for a permit to the Authority only after the applicants were issued an order to stop construction and obtain approvals.

[13] The Authority staff initially refused to review the permit application. After an order to do so by the Divisional Court, the Authority advised the applicants that it would not support the permit application.

[14] Pursuant to s. 28(12) of the CAA, the applicants requested a full hearing before the executive committee of the Authority. The executive committee denied the permit application.

[15] The applicants appealed the decision of the executive committee to the Minister pursuant to s. 28(15) of the CAA.

[16] Pursuant to O. Reg. 571/00, the appeal was assigned to the Tribunal to be heard as Case No. CA-004-17.

[17] On May 16, 2018, the Tribunal appeal was put in abeyance pending the outcome of the present application.

Legislation related to the permit application and appeal

[18] Section 28(3) of the CAA provides that a regulation made under the CAA may permit development subject to conditions.

[19] O. Reg 148/06 (under the CAA) prohibits certain types of development without first obtaining a permit issued by the Authority. The regulation also provides the Authority with the power to issue permits to allow development.

[20] Section 28(15) of the CAA provides that a person who has been refused a permit, or who objects to conditions imposed on a permit, may appeal to the Minister.

[21] O. Reg. 571/00 provides that the Tribunal is assigned the powers and duties of the Minister for the purpose of hearing and determining appeals under s. 28(15) of the CAA.

Applicable Mining Act legislation

[22] Section 107 of the Mining Act provides:

A party to a proceeding under this Act brought before the Tribunal and involving any right, privilege or interest or in connection with any patented lands, mining lands, mining claims or mining rights, may, at any stage of the proceeding, apply to the Superior Court of Justice for an order transferring the proceeding to that court.

[23] Under s. 113 of the Mining Act, an appeal before the Tribunal is a hearing de novo.

[24] Proceedings before the Tribunal are governed by Part VI of the Mining Act. Those provisions address matters such as the jurisdiction of the court, transfer of matters to the Superior Court of Justice, procedural matters such as service, and other matters such as providing the Tribunal with the right to retain its own experts, obtain evidence from them, and direct the experts or any other person to examine the property in question. The Tribunal can also call its own witnesses to obtain evidence that has not been adduced by the parties (see for example, ss. 118 and 119 of the Mining Act).

Analysis

[25] As I note above, there are two issues raised by this application:

(i) Does the court have jurisdiction to transfer the appeal before the Tribunal to the Superior Court of Justice pursuant to s. 107?

(ii) If the court has jurisdiction under s. 107, should the court exercise its discretion to transfer the appeal to the Superior Court of Justice?

[26] I address each issue below.

Issue 1: Does the court have jurisdiction to transfer the appeal before the Tribunal to the Superior Court of Justice pursuant to s. 107?

[27] The answer to this question requires the court to interpret s. 107 of the Mining Act to determine whether the applicants are a “party to proceeding under this Act [the Mining Act] brought before the Tribunal”.

[28] I first set out the governing principles of statutory interpretation and then apply those principles to s. 107 of the Mining Act.

a) The applicable principles of statutory interpretation

[29] In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, [2017] 2 S.C.R. 795, the court set out the governing “modern” rule of statutory interpretation. Rowe J. held (at para. 30):

In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, this Court endorsed the modern principle of statutory interpretation, which must guide our interpretation of the Code in this appeal:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [Emphasis added.]

[30] Further, the court should avoid a statutory interpretation that renders words superfluous. Every word in a statute is presumed to have a specific role to play in advancing the legislative purpose. In McDiarmid Lumber v. God’s Lake First Nation, 2006 SCC 58, [2006] 2 S.C.R. 846, McLachlin C.J. reviewed this “presumption against tautology” (at para. 36):

It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain: Sullivan, at p. 158. Thus, “[e]very word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose” (p. 158). This principle is often invoked by courts to resolve ambiguity or to determine the scope of general words. [Emphasis added.]

[31] Similarly, in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, Lamer C.J. held (at para. 28):

It is a well accepted principle of statutory interpretation that no legislative provision should be interpreted so as to render it mere surplusage. [Emphasis added.]

[32] I now consider s. 107 on the basis of the above principles.

b) Application of the law of statutory interpretation to s. 107

[33] In their factum, the applicants submit that they are “a party to a proceeding before the Tribunal that involves ‘any right, privilege or interest or relates to any patented lands’ […]”. The applicants omit from the above excerpt of s. 107 the requirement in s. 107 that they must be “a party to a proceeding under this Act brought before the Tribunal”.

[34] At the hearing, the applicants submitted that they should be considered a party to a proceeding under the Mining Act because (i) they are subject to the jurisdiction of the Tribunal; (ii) the provisions of the Mining Act apply to the Tribunal; and (iii) the Mining Act thus affects their legal rights. I do not agree.

[35] If the applicants’ position were correct, then any party to a proceeding brought before the Tribunal, regardless of whether the proceeding was brought under the Mining Act, would be able to seek a transfer to the Superior Court of Justice simply because the Tribunal had jurisdiction over the proceeding on a matter affecting patented lands, mining lands, mining claims, or mining rights.

[36] Such an interpretation renders the words “under this Act” surplusage. If it had been the legislative intent to have any party “brought before the Tribunal” in a matter involving “patented lands, mining lands, mining claims or mining rights” to be able to seek a transfer because the Tribunal proceeding was governed by Part VI of the Mining Act, it would not have been necessary to include the words “under this Act”. Under the applicants’ interpretation, the words “under this Act” have no meaning, with no “specific role to play in advancing the legislative purpose”.

[37] I cannot find upon a review of the ordinary and grammatical sense of the words “proceeding under this Act”, nor upon considering the “presumption against tautology”, that the applicants are parties to a proceeding under the Mining Act.

[38] The applicants’ proceeding has nothing to do with mining rights. All of their rights and obligations are derived from the CAA and the regulations passed under that statute. Section 28(3) of the CAA and O. Reg. 148/06 under the CAA (i) set out the jurisdiction of the Authority to permit development subject to conditions, (ii) prohibit certain types of development without first obtaining a permit issued by the Authority, and (iii) establish the jurisdiction for the Authority to issue permits to allow development.

[39] Section 28(15) of the CAA allows for an appeal to the Minister if a person has been refused a permit. The appeal is to the Tribunal as delegated by the Minister under O. Reg. 571/00.

[40] The words “under this Act” must be given meaning. I do not find that the applicants can “bootstrap” into being “a party to a proceeding under this Act” just because the Tribunal is delegated to hear the s. 28(15) CAA appeal by the Minister under O. Reg. 571/00.

[41] The fact that the appeal is a de novo hearing does not mean that a proceeding under the CAA becomes a proceeding under the Mining Act. It only demonstrates that when the Tribunal hears an appeal, it must do so as a new hearing.

[42] The applicants are not a “party to a proceeding under this Act brought before the Tribunal”. Rather, they are a party to a proceeding brought before the Tribunal as a result of O. Reg. 571/00. For the applicants to seek to fit under s. 107, the missing words “under this Act” would be meaningless.

[43] The applicants rely on the decision in TRS Components Ltd. v. Devlan Construction Ltd., 2015 ONCA 294, 125 O.R. (3d) 161 (“TRS”) in which the court held that an appeal from a counterclaim brought in response to an action under the Construction Lien Act, R.S.O. 1990. c. C.30 (the “CLA”) should have been to the Divisional Court as a proceeding “under” the CLA.

[44] However, the decision in TRS does not assist the applicants. In that case, the court held that the entire proceeding resulting in the decision was under the CLA. The counterclaim was brought under s. 55(2) of the CLA. Further, the court noted in TRS that s. 51 of the CLA gave the court hearing a matter under the CLA jurisdiction to address the counterclaim (TRS, at paras. 13-14).

[45] Notably, the court rejected TRS’ submission (at para. 16) that “it is the substantive claim in the action that determines the route of appeal, and not the fact that the proceedings were commenced under the [CLA]”. The court held (at para. 18) that that the counterclaim would be under the CLA “unless the action or any part of the action is removed from the construction lien proceeding, and directed to proceed under the Rules”.

[46] Further, the court noted that “the action proceeded under the [CLA] regime” (TRS, at para. 24).

[47] Similarly, in the present case, the proceedings which led to the appeal not only were commenced under the CAA, but also proceeded under the CAA. All of the decision-makers were authorized to render their decisions under the CAA, and the applicable permit regime is found in the CAA.

[48] Consequently, I do not find that TRS supports the submission that s. 107 applies simply because a party is in a proceeding before the Tribunal. To the contrary, the decision in TRS is consistent with the court examining where and how the underlying proceedings took place in order to determine whether the parties before the Tribunal were “under” a particular Act.

[49] Further, the above interpretation is consistent with the comment of Kurisko J. in Minescape (at para. 33) that the concurrent jurisdiction of the [then] Mining Court and the [then] General Division under s. 107 was for matters “involving private civil and property rights relating to or arising out of matters governed by the Mining Act”. [Emphasis added.]

[50] For the above reasons, I find that the court does not have jurisdiction to transfer the appeal before the Tribunal to the Superior Court of Justice pursuant to s. 107.

Issue 2: If the court has jurisdiction to transfer the appeal to the Superior Court of Justice, should it exercise its discretion to do so?

[51] The applicants submit in their factum that “as of right” they can seek a transfer since their matter relates to “a privately-owned parcel of land and, as such, fits the definition of ‘patented lands’”. I do not agree.

[52] I first address the applicable law and then apply that law to the facts of this case.

a) The applicable law

[53] The applicants rely on;

(i) the comments of Rand J. in Dupont (at p. 544) that if a matter before the Tribunal involves “property and civil rights”, then “an order should go [to transfer the appeal to the Superior Court] unless the party applying is willing to accept the Commissioner as arbitrator”, and

(ii) the comments of Kurisko J. in Minescape (at para. 26) that:

The power given by section 107 of the Mining Act to transfer a proceeding involving private civil and property rights from the Mining Court to the superior court is a safety valve that protects encroachment by the Mining Court on private civil and property rights. Thus, a decision by the Mining Court asserting jurisdiction over matters involving private civil and property rights can be preempted by an order transferring proceedings from the Mining Court.

[54] I do not agree that the above passages support a transfer as of right when the matter does not raise a general issue of law outside the scope of the Tribunal’s expertise.

[55] The concerns raised by Rand J. in Dupont and by Kurisko J. in Minescape arise out the concurrent jurisdiction of the Tribunal and the Superior Court of Justice on a “proceeding brought in the Mining Court involving private civil and property rights relating to or arising out of matters governed by the Mining Act” (Minescape, at para. 33).

[56] Consequently, the “safety valve” of s. 107 (Minescape, at para. 26) exists to ensure that matters of private civil and property rights law which are outside the specialized knowledge of the Tribunal can be transferred easily and “should go” unless “the party applying is willing to accept the [Tribunal] as arbitrator” (Dupont, at p. 544).

[57] However, if the matter before the Tribunal is within the court’s specialized expertise, both Rand J. in Dupont and Kurisko J. in Minescape recognized that a transfer would not be appropriate. In Dupont, Rand J. held (at p. 541):

The adjudications by the recorder and the Commissioner are not to be treated in isolation; the special elements of experienced judgment and discretion are so bound up with those of any judicial and ministerial character that they make up an inseverable entirety of administration in the execution of the statute. To introduce into the regular Courts with their more deliberate and formal procedures what has become summary routine in disputes of such detail would create not only an anomalous feature of their jurisdiction but one of inconvenience both to their normal proceedings and to the expeditious accomplishment of the statute’s purpose. [Emphasis added.]

[58] Similarly, in Minescape, Kurisko J. reviewed the issues in the proceeding before the Mining Court to determine whether a transfer was appropriate. He did not do so “as of right”.

[59] In Minescape, under his analysis entitled “The Proper Forum”, Kurisko J. held (at para. 41) that “[t]he nature of the Mining Court proceedings must be considered”. Kurisko J. found that the proceedings raised questions of (i) whether the agreement was “void for uncertainty or in the alternative, for failure to provide for consideration”, (ii) “fundamental breach of the agreement”, and (iii) “whether a constructive trust is imposed on Minescape” (at para. 41).

[60] On the basis of that analysis, Kurisko J. concluded, at para. 42:

The unpatented mining claims are a backdrop to specialized legal and equitable principles that fall within the jurisdiction and expertise of the General Division. They are not matters that fall within the specialised knowledge of the Mining Court. [Emphasis added.]

[61] The applicants’ position that they have a right to transfer an appeal affecting patented lands to the Superior Court of Justice, without considering the issues before the tribunal, is also not supported by other decisions.

[62] In Leo Alarie and Sons Limited v. Ontario (Minister of Natural Resources) (“Alarie”), the court reversed the decision of the applications judge, who transferred the proceeding before the Commission [the predecessor to the Tribunal] to the Superior Court of Justice. The applications judge held that the Superior Court of Justice, unlike the Commission, would have jurisdiction to address competing claims under different pieces of legislation administered by two different ministries (Alarie, at paras. 2 and 8). [1]

[63] The Court of Appeal held that the applications judge erred in that the other issues could not have been addressed by the Superior Court of Justice since the only proceeding before the Commissioner (and as such the only proceeding that could be transferred to the Superior Court) was a determination of mining rights under the Mining Act (Alarie, at para. 11).

[64] Having found that the matter before the Commission was a determination of mining rights, the court then relied upon Dupont to find that as mining rights were a matter within the Commissioner’s specialized jurisdiction, the court should not exercise its jurisdiction to transfer the proceeding to the Superior Court of Justice.

[65] The court referred to the passage from Rand J. in Dupont relied upon by the applicants [2] (Alarie, at para 17). The court held that once it is found that the matter relates to an issue within the specialized jurisdiction of the Tribunal, a transfer should not be ordered. The court held (Alarie, at paras. 18-19):

The core of the dispute in the Dupont case and the earlier McLean case lies in the tension between the province’s need to have an efficient and expeditious means of resolving disputes concerning mining claims and the constitutional provisions that have the effect of reserving jurisdiction over certain matters to the federally-appointed judges. The province has attempted to deal with this issue by creating an administrative tribunal to handle the vast majority of disputes and, to circumvent the s. 96 problem, it has built into the legislation a mechanism, s. 107, to allow the parties to take certain types of disputes to the superior court. However, s. 107 does not purport to alter the procedural and substantive law of judicial review.

The core of the dispute between the respondents and the appellants may be a matter of civil and property rights, but that is not a dispute the Superior Court could resolve when a proceeding has been transferred under s. 107 any more than could the Commissioner on an appeal under s. 112. The applications judge exercised his discretion under s. 107 solely on the basis that the Superior Court could consider the conduct of the MNR in granting the permit under the Aggregate Resources Act. Since this was not a proper basis for the exercise of the discretion, I would set aside that decision and remit the matter to the Commissioner. The s. 112 appeal is a statutory appeal to a specialized tribunal. It is preferable that this tribunal, rather than the court, determine issues within its jurisdiction. As Rand J. held in Dupont, at p. 541 […] [3] [Emphasis added.]

[66] Similarly, in Temex Resources Corp. v. Walker, 2014 ONSC 6400, [2014] O.J. No. 5643 (S.C.) (“Temex”), Wilcox J. ordered the transfer of the proceeding to the Superior Court, but relied on Alarie to note that he did not do so simply because the matter related to property and civil rights (Temex, at para. 84). Instead, Wilcox J. reviewed the issue before the [then] Mining and Lands Commissioner and transferred the proceeding because he held that “[t]he present case involves the effect of a Nevada court order on the disposition of mining claims in Ontario” (Temex, at para. 85).

[67] In Temex, Wilcox J. held (at para 91):

I find that, at its core, the matter is one of private property and civil rights arising from the Walkers' family law proceedings in Nevada. The effect on the mining claims in Ontario is only incidental to that. Therefore, there being a request to do so, it is appropriate to deal with it in the Superior Court of Justice and it is hereby transferred to that court from the Commissioner pursuant to s. I 07 of the Mining Act. [Emphasis added.]

[68] For the above reasons, I find that the applicants do not have a “right” to transfer the appeal to the Superior Court of Justice if s. 107 applies, simply because their claim falls into the “patented lands” category. Rather, adopting the approach in the above case law, I look at the issue before the Tribunal to determine whether a transfer would be appropriate. [4]

b) Application of the law to the facts of this application

[69] On the facts of the present case, there is no basis to transfer the appeal to the Superior Court of Justice. The Tribunal, as a specialized body, is delegated the power to address s. 28(15) appeals relating to building permits for construction on floodplains and wetlands under the CAA. The applicants raise no general principle of law that takes the matter outside the Tribunal’s expertise. There are no legal rights to be decided on the appeal that a court is better positioned to determine.

[70] The applicants filed evidence that only seven appeals under s. 28(15) have been decided by the Tribunal since 2010. The applicants submitted that the limited number of appeals demonstrates that the Tribunal has no specialized expertise in the matter. I do not agree.

[71] First, the proper question under the case law is whether the court is in a better position to determine the issue than the Tribunal. The number of cases does not support an argument that the courts are better placed to decide permit appeals.

[72] Further, I find the applicants’ reliance on the number of decided appeals irrelevant to the issue of whether the Tribunal has expertise on that matter. It may be that only seven appeals have been decided by the Tribunal since 2010 on permit issues, but that does not mean that a specialized lands tribunal does not have expertise to consider those issues.

[73] The applicants also rely on purported delay to have their hearing addressed by the Tribunal as a factor supporting a transfer, setting out an average over the seven cases decided by the Tribunal on permit issues of 795 days between the commencement of the appeal and the making of the final order, with the average time between the date of the hearing and the date of release of the order being 351 days. I do not accept this submission.

[74] The evidence only addresses one case within the past year, with the other appeals being heard in 2014 or earlier. There is no evidence before the court as to current delays for hearing an appeal or for releasing a decision.

[75] Even if the average delay over seven cases in an eight-year period could be said to reflect current delays (which I do not accept), I do not find that to be a basis to transfer a matter from a tribunal with specialized expertise. It is not the role of the courts to step into matters within the specialized expertise of tribunals (such as permits under the CAA), simply to address administrative backlogs of those tribunals. If any exceptional circumstances arise, the court can address such situations through its inherent jurisdiction.

[76] Finally, the applicants submit that a transfer is appropriate because of the deteriorating condition of the structure since it is exposed to weather elements. I do not agree.

[77] The applicants chose to build the pool house in their preferred location after they asked for permission to do so from the Authority and were advised that the Authority could not support building on that location. The Authority provided an alternative location which it could support, but the applicants instead began construction on their preferred location.

[78] It was only as a result of an anonymous complaint that the Authority became aware of the applicants’ conduct. It was only after the applicants were issued an order to stop construction and obtain approvals that the applicants submitted their application for a permit.

[79] Consequently, any damage to the pool house during the course of the appeal cannot be attributed to the Authority, nor serve as a basis to “bootstrap” a transfer to the Superior Court of Justice. The applicants could have avoided any damage by seeking the permit before building, and then challenging the decision if they still wished to build the pool house at their preferred location which the Authority would not support.

[80] For the above reasons, I would not transfer the appeal to the Superior Court of Justice even if I had jurisdiction to do so.

Order and costs

[81] I dismiss the application for the reasons above.

[82] Both parties provided bills of cost at the hearing. The Authority seeks costs of approximately $10,000 (inclusive of taxes and disbursements). The applicants seek costs of approximately $7,700 (inclusive of taxes and disbursements).

[83] This case raised important issues for the parties, and complex legal issues which required thorough research and a well-considered factum and book of authorities. Consequently, I fix costs at $9,000 (inclusive of taxes and disbursements) on a partial indemnity scale, which reflects the amount an unsuccessful party would reasonably expect to pay. I order those costs payable by the applicants to the Authority within 30 days of this order.

GLUSTEIN J. Date: 20181130

[1] I note that under this analysis, the applications judge in Alarie (as did the Court of Appea) reviewed the issues in the proceeding before the Commission to determine whether there were matters outside the Commission’s area of expertise of jurisdiction. The approach of the applications judge and the Court of Appeal in Alarie is inconsistent with the “as of right” position of the applicants.

[2] I set out that passage at paragraph 53(i) in my reasons above.

[3] The court relied upon the same passage as I set out at paragraph 57 above, so I do not repeat it again in this citation.

[4] This issue would only arise if there is jurisdiction under s. 107 for the transfer, which I do not find for the reasons I set out above.