Court File and Parties
COURT FILE NO.: TBA DATE: 20200407 SUPERIOR COURT OF JUSTICE - ONTARIO
In the matter of an intended application between:
EMILE SAINE, Applicant
AND:
NIAGARA ESCARPMENT COMMISSION, THE NIAGARA ESCARPMENT HEARING OFFICE, and THE MINISTER OF NATURAL RESOURCES AND FORESTRY, Respondents
BEFORE: Justice Robert B. Reid
COUNSEL: Z. Sayeed, for the Applicant
HEARD: April 7, 2020 (ex parte)
Endorsement: COVID-19 Protocol
[1] As a result of COVID-19, regular Superior Court of Justice operations are suspended at this time as set out in the March 15, 2020 Notice to the Profession, the Public and the Media by the Chief Justice of Ontario [1] (the “Notice”).
[2] In accordance with the Notice, electronic materials were filed by the applicant through the courthouse email address.
[3] The matter was referred to me as Triage Judge for a determination of urgency and for direction as to how this matter is to proceed.
[4] I have reviewed the letter from counsel for the applicant dated April 6, 2020 which, according to the letter, was copied to the respondents. Counsel indicates a willingness to issue an application as soon as it is possible to do so. Attached to the letter was a draft Notice of Application which sets out the factual basis for the intended claim as well as a draft Notice of Motion and supporting affidavit. Under normal circumstances, the court would not deal with a matter in advance of a legal process being commenced. However, these are not normal circumstances and it would be inappropriate to deny a party access to the courts, at least as to the determination of urgency, when the failure to commence a legal process was through no fault of the litigant.
[5] At present, despite the fact that the Superior Court’s technological resources are thinly stretched in this unprecedented situation, arrangements may be made to conduct urgent business. Courthouses are closed. Staff are working from home. The health and well-being of the litigants, counsel, the public, the court staff and judges prevents “business as usual”. Nevertheless, the court is committed to deal with matters that are truly urgent.
[6] The Notice lists certain matters that may be deemed urgent. The issue raised in this motion is not one of those. The Notice contemplates that other matters may be deemed urgent, but directs that such matters should be strictly limited.
[7] The issue before me is whether the motion is urgent.
[8] The dispute between the parties in this matter relates to the intended construction of a driveway by the applicant in an area of developmental control. The applicant secured a development permit after committing years of time and significant expense. It appears that a variation to the permit conditions is required but that the Niagara Escarpment Commission and Niagara Escarpment Hearing Office determined that there was no jurisdiction to vary the permit conditions. The applicant seeks to challenge that decision through a statutorily mandated appeal process. The pressing problem is that the permit will expire on April 13, 2020 and if it does, the entire lengthy and expensive permit process will need to be recommenced. Therefore, the applicant seeks a mandatory order staying the expiry of the permit or alternatively an order declaring that the permit expiry date is automatically extended by operation of O.Reg. 73/20 under the Emergency Management and Civil Protection Act.
[9] I express no opinion on the potential success of the applicant in the application or its request for a mandatory or declaratory order. However, I consider that it would be unfair if the applicant lost the benefit of over a decade of effort including administrative and legal proceedings with the concomitant expense through the expiry of his permit as a result of the reduction in the court’s activities during the current pandemic.
[10] It is my decision that to the extent of the request for interim relief, this matter is urgent and therefore it may be heard in advance of the court’s return to regular operations which, at the moment, is not anticipated to be before early June 2020.
[11] The motion for interim relief will proceed as follows:
a. The applicant will serve a copy of this endorsement on the respondents forthwith upon receipt. The respondents may make submissions at the hearing of the motion that the matter is not urgent and should not be heard, if so advised.
b. The applicant will contact the trial coordinator at St. Catharines by email at: St.Catharines.Superior.Court@ontario.ca to secure a date for hearing which will be before April 13, 2020.
c. The hearing will be by teleconference, with a maximum of duration one hour subject to any extension at the discretion of the hearing judge.
d. The applicant will serve the respondent with the Notice of Application, Notice of Motion and supporting affidavit forthwith. Electronic copies are to be filed with the trial coordinator at St. Catharines. The application is to be issued by the applicant as soon as possible.
e. The respondents will serve the applicant with any reply as soon as possible upon receiving the materials from the applicant. Electronic copies will be filed with the trial coordinator at St. Catharines.
f. Both parties are to serve and file facta in advance of the hearing.
g. No filing by either party is to be in a file size greater than 10MB, unless the judge hearing the matter expressly grants an order permitting the material to be sent in multiple emails.
h. The parties must undertake to file hard copies of all material and to pay any required fee upon resumption of normal court operations.
[12] It is not clear from the material filed whether there has been any discussion amongst the parties as to the application of O.Reg. 73/20 or whether, in the circumstances, the parties can agree to an order extending the expiry date of the permit. Those discussions are to be encouraged and, if the matter is resolved without the need for a hearing, counsel for the applicant is to advise the trial coordinator at St. Catharines without delay.
Reid J. Date: April 7, 2020