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Civil Litigation Dicta - Applications (3). Leandro v. New Tecumseth (Town of)
In Leandro v. New Tecumseth (Town of) (Div Court, 2023) the Divisional Court considers (and allowed) an appeal from a denied R38 application for a declaration that a cannabis operation was allowed under a zoning by-law. These quotes raise an interesting (and I think correct generally) interpretation of the doctrine of 'prematurity' (which can apply to judicial review and appeals in administrative tribunal contexts) does not have application to 'regular' RCP R38 applications:[38] With respect to prematurity, it is a doctrine that prohibits the appeal or judicial review of decisions made during the course of a proceeding before an administrative tribunal has completed its proceedings. Its purpose is to avoid the fragmentation and costs associated with forays into court before a tribunal has completed its process. Underlying the doctrine is the realization that only at the end of the process can it be known whether there is any necessity to appeal or judicially review an impugned decision: see Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 69. In the present case, the application was not an attempt to appeal or judicially review the decisions of either the OLT or the NFPPB. It was a separate application to ask the court to determine an issue that was not before either of those tribunals and that neither could determine. Thus, the doctrine of prematurity has no application. . Voreon Inc. v. Matas Management Services Inc.
In Voreon Inc. v. Matas Management Services Inc. (Ont CA, 2023) the Court of Appeal considered three merged related appeals of real estate ventures. In these quotes the court considered the appellate argument that the application judge granted declaratory relief that was unfairly 'unpled' [see esp para 55 re 'pleadings' in an application]:[49] ... Voreon argues that the respondent did not plead a request for declaratory relief, and that it was unfair for the application judge to grant it, because it left Voreon without notice or a fair opportunity to respond.
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[53] All parties knew that the validity and enforceability of the Settlement Agreement were in issue before the application judge. All parties made submissions on these issues. This is clear, in particular, from the many affidavits filed by both sides, and the factums filed before the application judge. There was no unfairness to Voreon.
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[55] Reading the Notices of Application in the Higher Living and Eminence Living applications together with the affidavits makes clear that Voreon raised the issue of the validity and enforceability of the Settlement Agreement, and that the respondents joined issue and responded on that issue in their affidavits. This court has held that affidavits filed on an application form part of the pleadings of the application: 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, 409 D.L.R. (4th) 382, at para. 17; see also Angeloni v. Estate of Franceso Angeloni, 2021 ONSC 3084, at paras. 27-29.
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[57] Similarly, the factums filed before the application support that the parties knew that the validity and enforceability of the Settlement Agreement was in issue, and fully addressed those issues before the application judge. The factums of both parties addressed whether the Settlement Agreement was a valid agreement, whether it was enforceable (including whether the respondent had complied with its terms), and the interpretation of the Settlement Agreement. In the alternative, Voreon argued that if the Settlement Agreement was valid and enforceable, its proper interpretation meant payment of various debts, including the promissory notes, were not satisfied by the payment of $6.5 million.
[58] Further, both parties sought declaratory relief in their submissions before the application judge. The relief requested by the appellants in each application included requests for declaratory relief in relation to amounts owed to it under either the shareholders agreement or the Settlement Agreement (depending on the findings of the application judge). ...
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[60] The impact of these requests for declaratory relief from both parties before the application judge is twofold. First, there was no unfairness to the application judge granting declaratory relief. All parties were on notice that it was being sought, and the issues were fully argued. Second, Voreon, having itself included requests for declaratory relief in its submissions before the application judge, including its relief requested in the alternative to enforce the Settlement Agreement, cannot now complain on appeal that the application judge granted declaratory relief. . Voreon Inc. v. Matas Management Services Inc.
In Voreon Inc. v. Matas Management Services Inc. (Ont CA, 2023) the Court of Appeal considered three merged related appeals of real estate ventures. In these quotes the court deals with an appellate argument that the proceeding should have been converted from an application to an action:[37] Floating the idea of a mini-trial to opposing counsel is not the same as making a request to the application judge to order one. Voreon commenced these proceedings as applications, took no steps to change that, and went along with them being heard as applications. Having done so, Voreon cannot now complain that there should have been a trial: 1213763 Ontario Inc. v. Shopsy’s Hospitality Inc., 2008 ONCA 863, at para. 25; C. Valery Construction Limited v. Battilana, 2018 ONCA 849, at para. 2. . Obolus Ltd. v. International Seniors Community Care Inc.
In Obolus Ltd. v. International Seniors Community Care Inc. (Ont CA, 2023) the Court of Appeal considered principles governing proceeding by action as opposed to application, including the appellate SOR for such issues:(1) The application judge did not err in not converting the application to an action
[10] The application judge’s decision with respect to converting an application to an action under r. 14.05(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is entitled to deference. The application judge was required to review evidence to make findings of fact to determine whether the proceeding was properly commenced by way of an application and whether it could be properly resolved as an application. An appellate court will only interfere with such a determination if the “lower court misdirected itself, came to a decision that is so clearly wrong so as to amount to an injustice, or gave no or insufficient weight to a relevant consideration”: Genstar Development Partnership v. The Roman Catholic Episcopal Corporation of the Diocese of Hamilton in Ontario, 2019 ONCA 506, at para. 23; Pennyfeather v. Timminco Limited, 2017 ONCA 369, at para. 135, citing Penner v. Niagara Regional Police Services Board, 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27.
[11] There is no dispute as to the test for converting an application into an action. In Fort William Indian Band v. Canada (2005), 2005 CanLII 28533 (ON SC), 76 O.R. (3d) 228 (S.C.), at paras. 28-31, G.P. Smith J. outlined the principles underlying this determination:[28] As a general principle, it is well established that an application should be used when there is no matter in dispute and when the issues to be determined do not go beyond the interpretation of a document.
[29] An application proceeding will not be converted into an action unless there is a good reason to do so, such as when the judge who will hear the matter cannot make a proper determination of the issues on the application record.
[30] When issues of credibility are involved or when viva voce evidence is required, a matter should proceed as an action.
[31] When a factual dispute simpliciter is involved, this by itself is not sufficient to convert an application into an action. The fact(s) in dispute must be material to the issues before the court. [Citations omitted.] [12] In this case, the application judge referred to these principles, properly considered the reasons for conversion, and found them to be insufficient.
[13] The primary ground asserted by the appellant to justify conversion was the need to obtain evidence relating to the February 26, 2021 meeting – as both parties have limited recollection of the Milestone Termination Option. The understanding of this meeting could be a material issue in the dispute if the intention of the parties was ambiguous in light of the wording of that clause. However, the application judge resolved the matter entirely though an interpretation of that clause – finding that the clause requires that the pre-consultation meeting take place after the APS is executed.
[14] In doing so, the application judge’s approach avoided the need to address the February 26, 2021 meeting, and thereby the requirement for further credibility or viva voce evidence. As such, in my view, the application judge did not misdirect herself, come to an unjust decision, or give insufficient weight to relevant evidence in finding that there was no good reason to convert the application to an action.
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