May 25, 2023
Timing can be everything.
THE ISSUE
If you are on the wrong end of an administrative decision and have a right to appeal, make sure that you do it at the correct time or you may waste time, money, and energy by having to start all over again.
THE CASE
In 1386146 Ont. Inc. v. 2520650 Ont. Inc. et al, the Licence Holder held a permit to excavate aggregate from a property owned by the Property Owner, but had not done so since at least 2003. In 2017, the Ministry of Natural Resources and Forestry decided to transfer the licence to the Property Owner.
The Licence Holder challenged this decision before the Local Planning Appeal Tribunal.
The Tribunal requested submissions on their jurisdiction to award the Licence Holder financial compensation for the loss of the permit rights.
After submissions, the Tribunal decided it did not have jurisdiction to award compensation.
Before the Tribunal could proceed with the hearing on the decision to transfer the licence, the Licence Holder appealed to the Divisional Court, with leave, as allowed by law.
The Divisional Court, despite the granting of leave, determined that the appeal was premature. Although the Tribunal had given reasons why its jurisdiction was limited, the court felt they needed a full set of reasons that also covered the decision to transfer the permit.
The court on appeal has jurisdiction to review only questions of law – that is, whether the Tribunal applied the right law, not how the Tribunal applied that law to the facts.
Previously, the Tribunal HAD considered financial implications of a transfer, and the court needed to know WHY the Tribunal had “reversed course” and changed its policy.
The Court felt that they needed a better understanding of the facts. That understanding could only come after a full set of reasons on the merits.
The Court sent the parties back to the Tribunal for a full hearing that includes stating that the court “encourage[s] the Tribunal to determine an economic value for the aggregate licence irrespective of its jurisdictional holding in case it ultimately becomes a relevant consideration.
This not only delayed the result, it increased the cost for everyone, and they may end up in the same place.
TAKEAWAYS
- Time is important in appeals, but timing is also important.
- Whether appealing a court or an administrative decision, an appeal may be dismissed as premature.
- This sometimes happens with preliminary decisions, though sometimes they are appealable, which is confusing.
- Lawyers are better trained than self-represented litigants to sort out these and similar procedural quagmires.
- The cost you waste on a premature appeal may be more than the cost of good legal advice or representation.
- Taking the right path at the wrong time will also create delay, and if you are in business, time is usually money.
WHAT WEILERS LLP CAN DO TO HELP YOU
We know about gravel pits. We also know about jurisdiction. We know administrative law.
We are used to analyzing complex fact situations and making recommendations to clients about the most cost-effective pathway to the best legal result. We work with clients of all sorts, from multinationals to individuals.
When you are confronted by an adverse administrative decision that you think is “just wrong”, or a tribunal or court proceeding has already been started, we would be happy if you give us a call to discuss whether Weilers LLP are the right lawyers for you.