COURT FILE NO.: CV-22-00679959-0000 DATE: 2023/03/06
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Corporation of the Municipality of Temagami Applicant Charles M. Loopstra, K.C., for the Applicant
AND:
Temagami Barge Limited, Dashiel Lowery Delarosbel, and His Majesty the King in Right of the Province of Ontario as represented by The Minister of Northern Development, Mines, Natural Resources and Forestry Respondents Leo Longo, for the Respondents, Temagami Barge Limited and Dashiel Lowery Delarosbel Eunice Machado, for the Respondent HMTK represented by MNDMNRF
HEARD: February 17, 2023
M.G. Ellies R.S.J.
REASONS FOR DECISION
OVERVIEW
[1] The respondents, Temagami Barge Limited (“Temagami Barge”) and its principal shareholder, Dashiel Lowery Delarosbel (collectively, the “Barge Respondents”), move to transfer this application from Toronto to North Bay. The parties originally agreed to transfer the proceeding to North Bay on the basis that the application itself has no connection whatsoever to Toronto, where it was commenced, and that North Bay was the closest court site to the property that is the subject of the application. However, as I pointed out in an endorsement dated November 24, 2022, Haileybury is closer to Temagami. Because the parties had not agreed to transfer the proceedings to Haileybury, I directed that, unless they consented to do so, a motion would have to be brought seeking an order transferring the matter to North Bay, instead.
[2] The Corporation of the Municipality of Temagami (“Temagami”) refuses to consent to transfer this application to North Bay because, as I also pointed out in my November endorsement, the delay in obtaining a hearing date in North Bay is significantly greater than in Haileybury.
[3] For the following reasons, the application will be transferred to Haileybury.
BACKGROUND
[4] Temagami Barge operates a business on the south shore of the northeast arm of Lake Temagami, at a municipal address known as 1685 Temagami Access Road. In the application, Temagami alleges that Temagami Barge is carrying on business in contravention of the applicable zoning bylaw. It seeks a declaration as to the governing bylaw and the activities permitted under that bylaw. It also seeks an interim and permanent injunction restraining Temagami Barge’s activities, an order requiring Temagami Barge to remove all of the chattels from the subject property, and an order closing the property for two years under s. 447.1 of the Municipal Act, 2001, S.O. 2001 c.25, on the basis that Temagami Barge's use of the property constitutes a public nuisance.
[5] The Barge Respondents resist Temagami’s application on the basis that Temagami Barge’s use of the subject property either conforms to the governing bylaw or is a legal non-conforming use and is being conducted in accordance with the applicable property standards.
[6] In addition to naming the Barge Respondents, Temagami has named as a respondent His Majesty the King in Right of the Province of Ontario as represented by the Minister of Northern Development, Mines, Natural Resources and Forestry (the “MNR”). The MNR has been named in the application solely because it is the legal owner of the lands in question. No relief is requested against it.
[7] The MNR is also involved in another proceeding relating to the subject property. In particular, in September 2009, the MNR commenced an application in North Bay against Temagami Barge and its owner at the time in which the MNR seeks a declaration that the lands are public lands, that Temagami Barge is occupying the lands illegally, and that Temagami Barge be required to remove the buildings and chattels it has placed there at its own expense. In 2010, the application was converted into an action by the order of Nadeau J., who has been overseeing the action ever since.
[8] Unfortunately, I am told that the MNR action has stalled. As I understand it, it is still at the discovery stage. Temagami relies on this fact in resisting the motion to transfer. According to Temagami, the Barge Respondents have purposely been doing what they can to delay the MNR action. Temagami, which is not a party to the MNR action, fears that the Barge Respondents want to have this application transferred to North Bay, rather than to Haileybury, so that they can seek to have the two matters consolidated or heard together, thereby once again grinding matters to a halt.
[9] On behalf of the Barge Respondents, Mr. Longo points to the speed with which this application has progressed since he was retained to replace the Barge Respondent's original counsel. However, Mr. Longo stops short of saying that the Barge Respondents have no plans to move to tie the MNR action and this application together, should the application be transferred to North Bay. Indeed, in their factum, the Barge Respondents point out that Temagami is relying in its application on the allegation made in the MNR action that Temagami Barge is illegally occupying the subject property. On behalf of Temagami, Mr. Loopstra advises that his client undertakes not to rely on this allegation so as to avoid the possibility that the Temagami application will be tied to the MNR action, regardless of the venue to which it is transferred.
ISSUES
[10] Rule 13.1.02(2)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides, that, unless a matter must be commenced in a particular place, a court may transfer a proceeding from one county (or district) to another if the court is satisfied:
that a transfer is desirable in the interest of justice, having regard to,
(i) where a substantial part of the events or omissions that gave rise to the claim occurred,
(ii) where a substantial part of the damages were sustained,
(iii) where the subject-matter of the proceeding is or was located,
(iv) any local community’s interest in the subject-matter of the proceeding,
(v) the convenience of the parties, the witnesses and the court,
(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims,
(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,
(viii) whether judges and court facilities are available at the other county, and
(ix) any other relevant matter.
[11] The Barge Respondents contend that the interests of justice would be better served by transferring this application to North Bay rather than to Haileybury, notwithstanding the greater delay that might result. They submit that Haileybury is not close enough to the subject property to outweigh the convenience that would result from having the matter heard in North Bay.
[12] As I will explain, I am unable to agree for three reasons.
ANALYSIS
Geographic Proximity
[13] The Barge Respondents submit that Haileybury and North Bay are roughly the same distance from Temagami Barge's business premises. That is true. The subject property is roughly 80 kilometres from Haileybury and 108 kilometres from North Bay. However, this submission ignores the fact that Temagami Barge’s business services all or most of Lake Temagami, a lake which extends from the subject property about 23 kilometres to the Town of Temagami. The lake is the focal point of the town’s history and its economy. The Town of Temagami is only about 57 kilometres from the town of Haileybury and over 90 kilometres from the City of North Bay.
[14] Although it was not raised in the motion, it is also true that Temagami lies within the District of Nipissing, as does North Bay, whereas Haileybury lies within the district of Temiskaming. However, because Temagami is much closer to Haileybury than to North Bay, there is a greater sense of unity between Temagami and Haileybury than between Temagami and North Bay. This is demonstrated by the evidence of Daryl Bell, a municipal law enforcement officer for Temagami. In an affidavit affirmed on April 12, 2022, Mr. Bell deposes that the City of Temiskaming Shores (of which Haileybury is a part) provides building department services to Temagami under contract and that, in September 2020, he visited the subject property with Mike Pilon, the Chief Building Official for the City of Temiskaming Shores.
[15] It is true, as the Barge Respondents submit, that neither the community in Haileybury nor the community in North Bay have a particular interest in this application. However, for members of the community in Temagami, who do have an interest in this matter, Haileybury is much closer.
[16] I do not believe it is appropriate, therefore, to give much, if any, weight to the “as the crow flies” geographic distance between the subject property and North Bay.
Balance of Convenience
[17] Nor do I believe it is appropriate, as submitted on behalf of the Barge Respondents, to give much weight to the fact that North Bay would be a more convenient venue for counsel, all of whom are from the Toronto area. While I agree that the convenience of counsel is a factor to be considered, if that factor mattered much, none of the parties should ever have considered transferring the matter to the Northeast Region.
[18] Further, in the event that viva voce evidence must be called during the application, Haileybury is more convenient for the potential witnesses than is North Bay. It is geographically closer to the residence of Mr. Delarosbel and, one must presume, to that of Mr. Bell and Mr. Pilon. At present, the only other witness that might be called is Paul Goodrich, a land use planner and land surveyor who prepared an expert report on behalf of the Barge Respondents and resides, in Callander, just south of North Bay.
Delay
[19] The third and final reason for my decision to transfer this matter to Haileybury, rather than North Bay, is probably the most important.
[20] I am quite concerned about the potential for further delay in matters relating to the subject property. The Barge Respondents make much of the fact that, although Temagami Barge has been operating at the same site since 1988, Temagami waited until 2022 to start this application. However, it is not hard to accept Mr. Loopstra's submission that Temagami hoped that the result of the MNR application would avoid the need to start its own proceeding and that, after 13 years, it finally gave up.
[21] While I accept that Mr. Longo and his firm have moved this application along with no undue delay, I would not like to see any time wasted in getting this application heard, given the delay that has occurred in the other proceeding involving Temagami Barge, regardless of who might have been responsible for that delay.
[22] For this reason, I believe the interests of justice weigh quite heavily in favor of transferring the matter to Haileybury and not to North Bay.
CONCLUSION
[23] For the foregoing reasons, the motion is dismissed. This matter will be transferred to Haileybury.
COSTS
[24] The Barge Respondents submit that costs should be awarded in the cause, meaning that the costs will be payable to the party who is awarded costs at the conclusion of the application. However, I see no reason why costs should not follow the event in this matter, meaning that the successful party should be awarded its costs for the motion, regardless of who is awarded the costs of the application.
[25] On behalf of Temagami, Mr. Loopstra seeks partial indemnity costs in the amount of $6,277.92 or substantial indemnity costs in the amount of $8,560.80. I see no basis upon which to award substantial indemnity costs. Further, I find the amount sought by Temagami for partial indemnity costs to be somewhat excessive.
[26] If successful, the Barge Respondents would have sought partial indemnity costs of $4,082.41 and substantial indemnity costs of $5,826.00. Given that the Barge Respondents were responsible for preparing the original motion record, and also prepared a supplementary motion record including the affidavit of Mr. Goodrich, I believe that the costs sought by the Barge Respondents are a better indication of what is reasonable in the circumstances.
[27] For these reasons, I assess costs in the amount of $5,000.00, all-inclusive, and order that they be paid within 30 days by the Barge Respondents to Temagami.
[28] MNR seeks no order as to costs on the basis that no order for costs is being sought against it.
M.G. Ellies R.S.J. Released: March 6, 2023