January 18, 2024
An order of the Ontario Land Tribunal may be appealed to Divisional Court, on a question of law only, and only with leave of the court.
THE ISSUES
2541005 Ontario Ltd. v. Oro-Medonte (Township), et al., looks at two important issues:
- When is it premature to seek leave?
- What is the test for leave?
The prematurity issue turns on the question of the finality of the Tribunal’s order. The Court has previously decided that it does not have jurisdiction to hear appeals of orders of tribunals which are not final.
Because the Tribunal has authority to review, rescind or vary its orders, is the decision final until those rights are exhausted?
THE CASE
The court considered precedent situations involving similar situations, including a 2008 case involving the Ontario Municipal Board, one of the predecessors of the Tribunal. In that case, leave was granted.
However, the court has also declined to hear appeals where proceedings were still pending before the tribunal, including certain OMB cases.
Determining whether an order is final is a tricky business.
In this case, the Court determined that a Review Decision of the chair of the Tribunal, directing a rehearing, was a final order, even though the rehearing had not yet taken place, as the review decision “goes to the heart of the matter”. This does not mean that every review Decision is final- it depends upon the circumstances.
Having found jurisdiction, the court turned around and refused leave to appeal. They rule that:
on a motion for leave to appeal, the test is three-fold: 1) the proposed appeal must raise an extricable question of law; 2) there must be a reason to doubt the correctness of the decision appealed from with respect to the question of law; and 3) the matter must be of sufficient general or public importance that it merits the attention of an appellate court.
This test is a paraphrase of the test under the Rules of Civil Procedure for granting leave to appeal under those rules.
The Court finds that the first requirement is met, but not that there was any reason to doubt the correctness of the decision. Also, though the issue no doubt is important to the parties, that importance does not reach the level of general or public importance. The alleged questions of law would not further the development of the law or the administration of justice.
TAKEAWAYS
- The right to make an appeal of a tribunal decision depends upon the legislation in issue and the nature of the decision.
- It does not depend upon the same sense of “final or interlocutory” used under the Courts of Justice Act.
- Nonetheless, the Court will not hear an appeal that is premature.
- Where leave is required, a three-part test is used which is a high hurdle.
WHAT WEILERS LLP CAN DO TO HELP YOU
Weilers LLP frequently represents organizations impacted by administrative decisions who wish to challenge the decisions, or simply require assistance finding a pathway to a better result.
We also provide a full range of services to municipalities and other decision makers across Northwestern Ontario from policy development and drafting through training and representation before tribunals or in the courts.
Whether you are an administrative decision maker, or the person affected by a decision, we may be the right lawyers for you. Give us a call.