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Appeal - Remedy - Dismissal with Permission to Re-file. Blackwell v. Genier
In Blackwell v. Genier (Ont CA, 2022) the Court of Appeal held, unusually, on a dispute over the use of a lake that the facts and law had been inadequately considered in the application (for declaration) below. It applied CJA 134(1)(a) ['anything that the court below could'] and (c) ['any other order'] to dismiss the original application, but without prejudice to the bringing of a new application with additional parties, including the Crown, which was encouraged:[14] This court’s jurisdiction on appeal is governed by s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which in para. (a) allows the court to make any order or decision that the court below might have made, and in para. (c) allows the court to make any order or decision that is considered just. I would allow the appeal, decline to make the declaration sought by the appellants, and dismiss the application on the basis that the record cannot sustain the analysis that a case of this importance requires: Victorian Townhomes (Burlington) II Limited Partnership v. Mutual Trust Co., [1995] O.J. No. 1844 (C.A.). I would do so without prejudice to the ability of the appellants to bring a fresh application that addresses the numerous deficiencies in this application, on notice to the Crown.
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