November 2012 Administrative Law Section Ontario Superior Court of Justice (Divisional Court) Case Law Updates Ariana Gic Perry, B.A., LL.B,* April 2012 to October 2012 Preserve Mapleton Inc. v. Ontario (Director, Ministry of the Environment) Cunningham A.C.J. Ont. S.C.J., Crane J., Swinton J. Judgment: August 7, 2012 Docket: Toronto 38/12 The Director, Ministry of the Environment, seeks costs of $5,000 and Conestoga Wind, LP seeks costs of $30,000 for the application for judicial review. The applicant Preserve Mapleton Inc. argues that no costs should be awarded because it brought the application in the public interest to determine the procedural requirements applicable in the Renewable Energy Approvals Process under Part V.0.1 of the Environmental Protection Act and O.Reg. 359/09. The applicant does not meet the criteria established for an award of no costs in public interest litigation (see St. James' Preservation Society v. Toronto (City) (2007), 227 O.A.C. 149 (Ont. C.A.) at para. 23). It was found to have no public interest standing to bring the application. Furthermore, the application, as framed, did not raise important and unresolved questions of law. Rather, the applicant took issue with alleged defects in the process without producing evidence that any individual suffered prejudice because of those defects. The respondents were put to considerable expense to respond to the application. Given their success on the application, the respondents are entitled to costs. The Director seeks a modest amount of $5,000, which is clearly far below its actual costs and very reasonable. Conestogo seeks $30,000, which is less than half the amount of its bill of costs on a partial indemnity basis. However, in our view, an award of $20,000 is fair and reasonable for this one day application. Therefore, costs to the Director are fixed at $5,000 and costs to Conestogo are fixed at $20,000, payable by the applicant.
2 Thyssenkrupp Elevator (Canada) Ltd. v. 1147335 Ontario Inc. Nordheimer J., Swinton J., Wilton-Siegel J. Heard: June 26, 2012; Judgment: July 27, 2012 Docket: Toronto 11-126 Decision of master not to recuse herself Company unsuccessfully brought motion requesting master disqualify herself as case management master in construction lien reference on ground of reasonable apprehension of bias Company brought application for judicial review Application dismissed Court had jurisdiction to hear application for judicial review seeking to prohibit master from continuing to case manage action Section 71(3) of Construction Lien Act prohibited appeal from interlocutory orders made in proceeding under Act However, statutory prohibition did not require parties to continue to participate in process that was fundamentally unfair Inherent power of superior court to supervise its processes was not to be invoked routinely However, court had jurisdiction to entertain application for judicial review where conduct of proceeding by officer of court was brought into question on assertion of bias. Standard of review where fairness of process was at issue was one of correctness Given importance of allegation of bias to maintenance of integrity of administration of justice, appropriate standard of review was correctness Court must be satisfied that master was correct in her conclusion that there was no reasonable apprehension of bias requiring her to recuse herself. Silveira v. Ontario (Minister of Transportation) Baltman J., Cunningham A.C.J. S.C.J., Matlow J. Heard: March 7, 2012; Judgment: June 18, 2012 Docket: Newmarket/Oshawa DC-000000320-00 After plaintiff AS was injured in motor vehicle accident, she and her family brought action against municipality alleging that it was negligent in maintenance of road Municipality pleaded that it was immunized from liability under Minimum Maintenance Standards for Municipal Highways Regulation (Regulation) Plaintiffs brought application for declaration that Regulation was void, as per direction by court following dismissal of their motion to amend claim to plead that Regulation was ultra vires Provincial Crown brought unsuccessful motion for order transferring application to Divisional Court under Judicial Review Procedure Act (Act) Motion judge held that court's approach was consistent with jurisprudence under s. 8 of Act in context of exercising responsibility under R. 37.15 of Rules Provincial Crown appealed Appeal dismissed Motion judge did not err in law, nor did he exercise his discretion
3 unreasonably Motion judge's reliance on R. 14.05(3)(h) of Rules was correct as validity of Regulation did not depend on any material facts in dispute There was nothing in Act that required motion judge to refer application to Divisional Court, rather than hear it himself Section 7 of Act did not apply to this application as it was for declaration only Whether s. 8 of Act was applicable or not, it was within motion judge's discretion to determine whether or not to direct that action, or part of it involving validity of Regulation, be transferred to Divisional Court. Alghaithy v. University of Ottawa Harvison Young J., Swinton J., Then R.S.J. Judgment: June 8, 2012 Docket: Toronto 292/11 Applicant was senior medical resident in neurosurgery at respondent university until he was dismissed from program Resident appealed through various levels of internal appeal structure until his dismissal was upheld by Senate Appeals Committee Resident unsuccessfully brought application for judicial review of decision of Senate Appeals Committee Parties made submissions on costs University was awarded costs of $25,000 Such award was fair and reasonable This was hard-fought application involving cross-examinations of four affiants Amount of $57,647.20 sought by university was excessive for one-day application, but amount of $12,000 to $14,000 suggested by resident was too low. Paudash Shores Cottagers Assn. v. Ontario (Ministry of Natural Resources) Swinton, Sachs, Wilton-Siegel JJ. Heard: April 27, 2012; Judgment: May 31, 2012 Docket: Toronto 467/11 Respondent D purchased property zoned as rural in 1985 and started using fill from his land for his construction business D applied as established pit for licence under Aggregate Resources Act to operate pit on private lands Ministry relied on confirmation signed by municipality to conclude that D's pit was legal non-conforming use Local association of cottagers applied for judicial review to quash licence Application granted Standard of review of decision was correctness Ministry official gave no reasons for decision at time, but affidavit indicated that Ministry relied solely on municipality to determine legality of D's use Minister had no discretion to exercise when determining whether pit was lawful use and officials had no particular expertise on zoning questions There was no reason for deference There was no justifiable basis for decision to grant licence and it could not stand.
4 First zoning by-law in 1979 permitted wayside and borrow pits in rural zone, and amendment in 1991 only permitted wayside pits At time of Minister's decision, D claimed his use was legal non-conforming use because his lands had been used as pit in 1970s, but he now claimed such status for operating borrow pit prior to amendment D's application appeared to have left municipality with mistaken impression that he had pit in operation prior to 1979 by-law There was some confusion as to specific basis for municipality's confirmation of legal non-conforming use, but there was no evidence that municipality was ever asked to assess whether D operated borrow pit Licence was clearly issued on basis of misinformation provided to and by municipality, as Ministry would have taken much closer look at application if D had made clear that non-conforming use was only as borrow pit There was no justifiable basis for decision to grant licence and it could not stand. Summitt Energy Management Inc. v. Ontario (Energy Board) Perell J. Heard: April 24, 2012; Judgment: May 8, 2012 Docket: 624/10 Ontario Energy Board panel, comprised of H and S, found that retail energy marketer S Inc. breached Ontario Energy Board Act, 1998 and did not establish due diligence defence Ontario Energy Board used law firm as external counsel, and employed lawyer D at firm as independent legal counsel for this matter S Inc. appealed under statutory review provisions S Inc. brought motion to adduce fresh evidence and to add reasonable apprehension of bias due to law firm's involvement as ground of appeal S Inc. served summonses on H and D in aid of motion, directing them to appear for examination and bring various documents Energy Board brought motion to quash summons Motion granted General issue with respect to which summonses were issued was whether Board's determination was tarnished by reasonable apprehension of bias It was not disputed that law firm acted for S Inc.'s competitors or that it was member of Ontario Energy Association committees that had developed information relevant to S Inc.'s due diligence defences Further details being sought by summonses were collateral information and immaterial to ultimate determination of whether there was reasonable apprehension of bias Putting names and dates and descriptions of retainers with competitors was simply beside point. Preserve Mapleton Inc. v. Ontario (Director, Ministry of the Environment) Crane J., Cunningham A.C.J. Ont. S.C.J., Swinton J. Heard: April 2, 2012; Judgment: April 24, 2012 Docket: Toronto 38/12 In 2007, approval holder commenced application for construction and operation
5 of wind facility under former Environmental Screening Process and in September 2009, continued under Regulation 359/09, Renewable Energy Approvals Under Part Pt. V.0.1 Of The Act Approval holder held first public meeting under Regulation on December 2, 2009, and second public meeting on November 30, 2010 Following changes to project layout after second meeting, Ministry of Environment (MOE) required third public meeting in March 2011 Having discovered anomalies with first public meeting, MOE extended posting on Environmental Registry from required 30 to 60 days, over which time it received 536 comments Based on comments, approval holder made additional modifications, for which MOE did not require further public meeting, but required approval holder to update its documentation and website, consult with other ministries, and provide notice to public On December 8, 2011, Director, MOE issued approval, on condition of creation of community liaison committee and completion of archaeological assessment Preserve Mapleton Inc. (PMI) commenced appeal to Environmental Review Tribunal under s. 142.1 of Environmental Protection Act PMI brought application for judicial review Application dismissed Process followed with respect to approval holder's application met common law requirements of procedural fairness Even though there was no reference to s. 12(1.1) of Regulation in decision document, it was obvious that MOE staff knew of failure to meet requirements in Regulation, and they took steps to address any problems in public consultation process After reviewing consultation process, staff members were satisfied that approval holder demonstrated that it had sufficiently met requirements of Regulation In any event, even if no reasons were given for exercise of director's discretion, court should not invalidate decision if reasonable basis for decision is apparent from record Review of record showed that there was extensive consultation with public, and there was no evidence that any individuals were denied opportunity to participate in consultation process because of technical defects in notice. Nyonzima v. Ontario (Human Rights Tribunal) Aston J., Aitken J., Lederer J. Heard: September 11, 2012; Judgment: September 11, 2012 Docket: Toronto 43/12 Complainant filed two complaints alleging that respondents discriminated against her on basis of race, and engaged in acts of reprisal against her Complaints were supported in large part by corroborating letters, purportedly written by two of complainant's co-workers Human Rights Tribunal dismissed complaints as abuse of process Tribunal found complainant lacked credibility and that letters had been fabricated Complainant brought application for judicial review, with view to quash tribunal's decision or to remit decision back to tribunal to have it heard on its merits Application dismissed
6 Tribunal had power to dismiss complaints as abuse of process, and its decision to do so was protected by deferential standard of review Tribunal reviewed other potential remedies and concluded they would be ineffective. Complainant's allegation that she was refused opportunity to call witness during hearing was rejected Complainant did not seek to call witnesses on day of hearing, and based on statements of witnesses they could not have refuted tribunal's finding that letters were fabricated and written by complainant No evidence existed to support complainant's theory that respondents fabricated letters to undermine her credibility Only standard of proof to be applied at common law was balance of probabilities Consequently, tribunal did not err by not applying higher standard of proof in assessing perceived allegation of fraud against complainant Tribunal based its decision on compelling body of circumstantial evidence that existed Complainant's concern regarding validity of her paralegal representative's signature on mediation adjudication agreement was raised for first time on judicial review application No previous objection had been raised with respect to paralegal's authority to sign on her behalf Objection to paralegal's signature on agreement could have been subject of reconsideration request, but complainant chose not to pursue this avenue. Pollution Probe Foundation v. Ontario (Energy Board) Hockin J., Jennings J., Swinton J. Heard: May 30, 2012; Judgment: May 30, 2012 Docket: Toronto 221/1 Letter by Ontario Energy Board (Board) included draft Demand Side Management (DSM) guidelines to be used in natural gas rate hearings Applicant foundation alleged that Board decided to impose budget caps in letter, and alleged that process for adopting guidelines was improper as no hearing was held under s. 21(2) of Ontario Energy Board Act, 1998 Applicant applied for judicial review of letter, seeking to challenge guidelines Board brought motion to quash application on basis that it was moot Motion granted Application dismissed as moot There was no longer live controversy as to whether Board considered guidelines to be binding Discretion should not be exercised to hear application despite mootness, as applicant had another avenue to challenge DSM guidelines, including budget caps, in rate proceeding before Board There had been two rate hearings since DSM guidelines were issued, and applicant participated in both those proceedings In both cases, Board approved arrangements that departed from DSM guidelines As well, guidelines were not binding as they were not orders of Board.
7 Martinez v. Toronto Police Services Board Aston J., Herman J., Swinton J. Heard: May 15, 2012; Judgment: May 15, 2012 Docket: Toronto 104/12 After June 2010 G20 summit, Office of Independent Police Review Director (OIPRD) received 361 complaints against police officers, including eight complaints against applicants OIPRD investigated complaints against applicants and others, undertook systemic review of policing during summit, and found complaints against applicants substantiated Toronto Police Services Board determined that, although more than six months had elapsed since incident, exceptional situation arising from summit permitted service of Notice of Hearing on applicants despite six-month limitation on service of such Notices in s. 83(17) of Police Services Act Police officers brought application for judicial review; Attorney General and Chief of Toronto Police Services brought motion to dismiss application as premature Motion granted; application for judicial review dismissed Judicial review was discretionary remedy to be refused where application was premature There were no exceptional circumstances justifying determination of application on merits Alleged prejudice was not exceptional prejudice Applicants were treated same as other officers facing disciplinary proceedings Applicants did not allege denial of procedural fairness or bias affecting fairness of ongoing proceedings There was no evidence of prejudice that would result in unfair hearing or actual prejudice to applicants offensive to public's sense of decency and fairness Applicants' recourse to abuse of process motion was adequate alternative remedy. Riad v. Ontario (Health Professions Appeal & Review Board) Aston J., Herold J., Wilton-Siegel J. Heard: May 4, 2012; Judgment: May 4, 2012 Docket: Toronto 449/11 Patient complained of psychiatrist's conduct to College of Physicians and Surgeons Complaints Committee which decided to decline further investigation of complaint Committee's investigator reviewed complaint and Committee provided patient reasons for taking no further action Patient requested review by Health Professions Appeal and Review Board with device to accommodate hearing impairment Device proved unsatisfactory to patient Board converted oral review into written review and advised patient he had 30 days to provide written submissions Rather than making written submissions, patient wrote Board 30 days later advising he was entitled to oral hearing with different system Board confirmed conversion of hearing into review and gave patient 30 more days for written submissions Patient made no submissions Board issued decision and reasons confirming Committee's decision to take no further action Patient brought application for judicial review to compel Board to reopen complaint and hold oral hearing Application dismissed Board's decision to hold review on written submissions rather than conducting oral
8 hearing as first contemplated did not constitute breach of patient's Charter rights, amount to failure to accommodate patient's disability under Ontario Human Rights Code or otherwise amount to breach of procedural fairness Applicable standard of review was reasonableness, Board's decision reasonable on its face, and there was no basis for concluding otherwise Board was specialized tribunal interpreting own statutory powers and enabling legislation and regulations, and brought specialized knowledge and experience to analysis of Committee proceedings Ministry of Health and Long-Term Care Appeal and Review Boards Act established Board as both administrative and quasi-judicial adjudicative tribunal and did not require Board to hold hearing when conducting review Board had discretion to conduct reviews in writing, unless patient satisfied Board that there was good reason not to do so In requesting oral hearing, patient did not point to disadvantage or prejudice of written hearing but just expressed preference for oral hearing Patient himself advised that device arranged for initial oral hearing was ineffective in enabling him to participate properly There was no good reason in record not to do written review Given nature of review, Board did all that it had to do procedurally in its conduct of that review. Maranatha Drugs Inc.v.Ontario Aston J., Herold J., Wilton-Siegel J. Heard: May 2, 2012; Judgment: May 2, 2012 Docket: Toronto 64/12 Pharmacy held licence to dispense prescribed and publicly subsidized drugs, given under Ontario Drug Benefit Act Pharmacy allegedly engaged in fraudulent practices with respect to licence, inter alia allegedly filing "unsubstantiated claims" for payment from respondent Minister for Health of drugs allegedly not acquired or dispensed Pursuant to s. 11.1(1) of Act, respondent terminated licence, which termination was judicially stayed on interim basis Pharmacy brought application for judicial review of termination decision, inter alia alleging that duty of fairness in circumstances included opportunity to muster and adduce evidence Application granted in part It was "not clear on the record before us that the applicant will be able to provide meaningful evidence that addresses the discrepancies in respect of the unsubstantiated claims" However, termination decision had very serious consequences for pharmacy, as decision would effectively put pharmacy out of business Having regard to serious consequences, to nature of allegations including significant fraud and to lack of demonstrable prejudice to respondent, application was properly granted to permit pharmacy to provide, by June 4, 2012, "whatever further evidence it can" and for reconsideration by respondent on that basis. *Ariana Gic Perry, B.A., LL.B., Legal Product Developer, Carswell, a Thomson Reuters business, E-Mail: ariana.gicperry@thomsonreuters.com