BARRIE COURT FILE NO.: CV-18-1381 DATE: 20220425

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Corporation of the Township of Tiny and Jamie Wilson (Chief Building Official), Applicants AND: Leger Gerald Robitaille, Respondent

BEFORE: The Honourable Mr. Justice M. McKelvey

COUNSEL: Michael F. Sirdevan, Counsel for the Applicants Michael Swinwood, Counsel for the Respondent

HEARD: March 25, 2022

Order Re: Motion to Re-Open the Hearing in This Matter

Introduction

[1] In 2019, the Township of Tiny (the “Township”) brought an application pursuant to s. 38 of the Building Code Act, 1992, SO 1992, c 23 for the removal or demolition of buildings located on the Respondent’s property, together with an injunction restraining the Respondent from occupying the buildings on his property.

[2] Mr. Robitaille purchased the property on October 30, 2019. On the day following his purchase of the property, Mr. Robitaille moved a building to the property. Photographs of the property show that it was a log cabin, a shed, and an outhouse which were constructed on the property. There was no issue about the fact that the buildings were placed on the property without a building permit.

[3] According to the Municipality the reason that no building permit could be issued was because Mr. Robitaille’s property was covered under a zoning by-law which was enacted by the Township on January 9, 2006.

[4] Mr. Robitaille represented himself at the hearing. At the time of the hearing Mr. Robitaille argued that the holding designation on his property should be removed because the road which abutted his property was a proper collector road. He therefore argued that the Township improperly refused to grant him a building permit.

[5] In a decision released on August 2, 2019, I concluded that the roadway abutting the Respondent’s property was an unopened road allowance and that the Township was entitled to enforce its zoning by-law by requiring the Respondent to move or demolish the shed and cabin located on his property.

[6] On September 27, 2019, my assistant received an email from a lawyer, Michael Swinwood, who advised that he had been consulted by Mr. Robitaille on this file and intended to bring a motion pursuant to Rule 59.06(2) of the Rules of Civil Procedure in order to raise a constitutional question. On October 2, 2019, counsel for both the Applicants and the Respondent participated in a telephone case management conference in order to address the issue of whether a costs hearing should proceed or alternatively, whether Mr. Swinwood should bring his Rule 59.06 motion. At that time the costs hearing originally scheduled for October 22, 2019 was adjourned and a schedule was agreed to for submission of material on Mr. Swinwood’s motion to re-open the hearing.

[7] Unfortunately, due to the COVID-19 outbreak, Mr. Swinwood’s motion could not be heard until now.

[8] According to the Affidavit of Mr. Robitaille dated October 30, 2019, because he was unrepresented on the application and was not familiar with the Rules of Civil Procedure, he did not bring a constitutional challenge to the Township’s zoning by-law. Mr. Robitaille is an Indigenous person and seeks to re-open the hearing to advance a constitutional challenge to the jurisdiction of the Township as it is asserted that the property in question forms part of an unceded, un-surrendered Amikwa Algonquin Nation territory.

[9] The Respondent’s motion is stated to be brought pursuant to Rule 59.06 and Rule 1.04(1) of the Rules of Civil Procedure. It is also significant to note, however, that at the hearing of the motion I was advised that no order based on my decision of August 2, 2019 has been signed, issued or entered. In addition, I was also advised that no steps have yet been taken by the Township to remove the buildings which are located on the Respondent’s property.

[10] For the reasons which follow, I have concluded that the Respondent’s motion to allow a re-opening of the hearing to advance a constitutional challenge should be granted.

Applicable Legal Principles

[11] Rule 59.06 provides as follows:

59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

(2) A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,

may make a motion in the proceeding for the relief claimed.

[12] In Clatney v. Quinn Thiele Mineault Grodzki LLP, 2016 Carswell Ont. 7878, the Ontario Court of Appeal considered the application of Rule 59.06. At para. 59 the Court notes that the role of Rule 59.06 is to provide an expeditious procedure for setting aside court orders. However, it does not prescribe or delineate a particular test. The Court states,

Ultimately, under r. 59.06 or within a separate action, an individual seeking to set aside an order is required to show “circumstances which warrant deviation from the fundamental principle that a final [order], unless appealed, marks the end of the litigation line”: Tsaoussis, at p. 266.

[13] Thus, a court is not limited to setting aside an order in instances of fraud or facts arising or discovered after the order has been made. It is conceded by the Respondent that there is no evidence of fraud or facts arising after my order had been made. The test which must be satisfied, however, is whether it is in the interests of justice to do so.

[14] It goes without saying that re-opening a decision after it has been made is a rare occurrence. It is noted in the decision in Massiah v. Justices of the Peace Review Council, 2018 ONSC 2179 at para. 11 that Rule 59.06 is “not an opportunity to second guess counsel’s decisions as to which arguments to make at a hearing or to seek a new hearing to make the arguments that counsel previously chose not to make”. Litigation by installment is to be discouraged. Parties are required to put forward the entirety of their case in a single action. However, the principle of finality must yield in circumstances where failure to do so will undermine the integrity of the administration of justice.

[15] A court has a broader discretion to re-open a decision where the order has not been signed, issued or entered as in the present case.

[16] In Montague v. Bank of Nova Scotia, the Ontario Court of Appeal adopted the principle that it is well settled in law that an order can always be withdrawn, altered or modified by a judge either on his own initiative or on the application of a party until such time as the order has been drawn up, passed and entered. At para. 36 of the Judgment, the Court of Appeal states,

The terms of the rule do not purport to limit the broad judicial power to alter a judgment before it is entered. Very clear language would be required to curtail a judicial discretion having such deep historical roots. Nor is there any reason to stretch the rule to achieve this result, since this judicial discretion allows a judge to change his or her judgment precisely to better serve the ends of justice. Rule 49.06 does not prohibit what the trial judge did here.

[17] While the discretion to re-open a hearing before the order has been signed is relatively broad, it is not without its limits.

[18] In Meridian Credit Union Limited v. Baig, 2016 ONCA 942, the Ontario Court of Appeal commented that while there is no jurisdictional impediment to the court reconsidering its decision when no order has been taken out and entered, a party seeking to re-open an appeal after the appeal decision has been rendered faces “a high hurdle”. The Court states, “[t]he court will re-open an appeal prior to the entering of the order “sparingly and only where it is clearly in the interests of justice”.

[19] In Brown v. The Municipal Property Assessment Corp., 2014 ONSC 7137, the Divisional Court acknowledged that there is a fairly broad power, in a judge, to change an order after it has been announced, but before it has been signed and entered. The Court stated at para. 20,

Any such change should only be made, however, if it is either technical (e.g. to correct an arithmetic error) or it is necessary to avoid a miscarriage of justice: Clayton v. British American Securities Ltd., [1935] 1 D.L.R. 432 (B.C.C.A.) at pp. 440-441.

[20] In the present case I have concluded that the case should be re-opened in order to allow the Respondent to raise his constitutional argument for the following reasons.

[21] At the time of the hearing of the motion, the Respondent represented himself and I accept his evidence (which was unchallenged) that he was not familiar with the Rules of Civil Procedure or the requirements of the court when it comes to advancing a constitutional question. In my view, some leeway needs to be given to the Respondent because of this unfamiliarity.

[22] It is unclear to me what the merits are for the Respondent’s position on the constitutionality of the Applicant’s by-law as it applies to the Respondent. This was not argued on the motion to re-open the hearing, it is clear that this issue was never raised nor considered at the time of the original hearing. It is apparent to me, however, that the issue is a novel one. I was advised at the hearing that there is a case currently being considered in Sudbury which may have a direct impact on the constitutional question before me. I therefore conclude that it would be in the interests of justice to allow this discrete issue to be considered by me.

[23] There would not appear to be any prejudice to the Applicant to my consideration of this issue. I was advised at the hearing that no steps have been taken to remove the Respondent’s buildings from the property and it is therefore apparent that the status quo has been maintained pending a consideration of the constitutional question being raised by the Respondent.

[24] It is also significant that this issue was raised promptly by the Respondent following release of my decision, although it is apparent that there has been a significant delay in hearing the motion because of the COVID-19 outbreak.

Conclusion

[25] For the above reasons I have concluded that the Respondent’s motion to re-open the hearing to argue the constitutional issue should be granted. Costs of this motion will be dealt with after I have released my decision on the constitutional issue.

[26] Upon receipt of this decision I would ask counsel to make an appointment through my assistant for a further telephone case management conference to discuss a schedule for the hearing of the constitutional issue.

Justice M. McKelvey Date: April 25, 2022