Court File and Parties
Company, 2023 ONSC 1196 COURT FILE NO.: CV-18-52382 DATE: 20230217 ONTARIO SUPERIOR COURT OF JUSTICE
REGIONAL MUNICIPALITY OF HALTON, CORPORATION OF THE TOWN OF MILTON, CORPORATION OF THE TOWN OF HALTON HILLS, THE CORPORATION OF THE CITY OF BURLINGTON, CORPORATION OF THE TOWN OF OAKVILLE and THE HALTON REGION CONSERVATION AUTHORITY, Applicants
-and-
CANADIAN NATIONAL RAILWAY COMPANY, Respondent
BEFORE: FL Myers J
COUNSEL: Kent E. Thomson, and Steven G. Frankel for the Applicants Andrew Bernstein, for the Respondent
READ: February 17, 2023
Endorsement
The parties disagree about the form of formal order to dismiss this proceeding.
CN submits that the applicants made a formal admission or concession before me that although they asserted that all 50-plus laws listed in their schedule were before me, only three bylaws were relied upon as showing the factual matrix of existing breaches for the purposes of seeking injunctive relief under the Municipal Act.
CN asks for this concession to be recorded in a recital in the formal order. Mr. Bernstein writes:
CN acknowledges that its request to include additional information in the recital is unusual. However, CN submits it is necessary to avoid confusion about why the Court’s decision focused on Milton Bylaw 33-2004, Milton Bylaw 035-2020, and Halton Bylaw 32-17 (the “Three Bylaws”). You were asked to consider the injunction based on those Three Bylaws.
The applicants make no secret of their intention to argue to the Court of Appeal that (a) they did not rely solely on the Three Bylaws as the basis for an injunction; and (b) that restricting your decision to the Three Bylaws was an error of law.
While the applicants can make any argument they choose, they are not entitled to advance their argument by mischaracterizing the proceedings before you. A central question throughout this proceeding was which specific laws the applicants were relying on in support of their injunction. After much prompting by CN, the applicants finally answered that question at the hearing. Now they are resiling from their answer.
This is not CN trying to get a “leg up” on appeal; it is to ensure that the Court of Appeal is aware of what happened before the Court at first instance, so it does not make any decisions based on a misapprehension of the facts.
I am not prepared to supplement or to explain my understanding of the proceedings as they unfolded before me beyond the words of my decisions. I do not think there is uncertainty as to what was properly before me based on what I wrote. But if others do not share that understanding, then I may stand corrected.
I explained why I dealt with the three bylaws as I did based on the evidence and the written and oral submissions made by counsel. The standard form order states that in the standard “ON READING” and “ON HEARING” recitals. I have therefore signed the draft order advanced by CN without the added recital.
I am not to be taken to be disagreeing or agreeing with the substance of Mr. Bernstein’s submission. Rather, in my view, my reasons need to speak for themselves. Otherwise, this very formal, administrative process could become a never-ending and iterative one.
FL Myers J Date: February 17, 2023