COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Levy, 2019 ONCA 915

DATE: 20191121

DOCKET: C65722

Strathy C.J.O., Doherty and Tulloch JJ.A.

BETWEEN

The Attorney General
    of Canada

(on Behalf of the
    United States of America)

Respondent

and

Colin Levy

Applicant

Brad Greenshields, for the applicant

Adrienne Rice, for the respondent

Heard: October 2, 2019

On application for judicial review of the surrender order
    of the Minister of Justice dated August 1, 2018.

Tulloch J.A.:

[1]

Mr. Levy seeks judicial review, pursuant to s. 57 of the
Extradition
    Act
, S.C. 1999, c.18, of the order of the Minister of Justice (the
    Minister), dated August 1, 2018, ordering that he be surrendered to the United
    States to stand trial on criminal charges for drug-related offences. I would
    dismiss the appeal and uphold the Ministers order.

Facts

[2]

The applicant is a 53-year-old Canadian citizen who faces charges of
    trafficking and conspiracy to import illegal drugs into the U.S. These
    indictments were filed in the Southern District of Florida in 2010 and 2014.
    Mr. Levy was provisionally arrested in Canada on December 6, 2016, and the U.S.
    authorities requested his extradition to the U.S. by diplomatic note on
    February 3, 2017, clarified on March 5, 2018. The applicant was subject to an
    extradition hearing in front of André J. of the Superior Court of Justice in June
    2017. The extradition judge found that there was sufficient evidence to commit
    Mr. Levy on the offences in question and ordered him committed into custody to
    await the decision of the Minister on extradition.

[3]

The applicant abandoned his appeal of the committal order. However, counsel
    for the applicant made submissions to the Minister on his behalf on three
    occasions between December 2017 and June 2018, arguing that she should refuse
    to extradite on the basis that it could be unjust and oppressive, having regard
    to Mr. Levys health and personal circumstances. On August 1, 2018, the
    Minister ordered that the applicant be surrendered to the U.S. authorities,
    under s. 40 of the
Extradition Act
. She amended this order on July 3,
    2019, under s. 42 of the
Extradition Act
, postponing the applicants
    surrender in light of new charges pending against the applicant in Ontario.

[4]

Mr. Levy suffers from schizophrenia, epilepsy and prostate cancer. He
    experienced several complications following surgery for his prostate cancer in
    December 2016, including extreme leg and back pain and severe incontinence and
    bladder leakage. He is the caregiver for his two adult sons, both of whom also
    suffer from schizophrenia. Counsel for the applicant submitted letters to the
    Minister from the applicants physicians, outlining their concerns that Mr.
    Levys health conditions would worsen if he were extradited. This harm would
    result from the stress of travel itself and his removal from his medical
    support network.

[5]

In light of this medical evidence, the Minister reached out to the U.S.
    authorities to inquire about the availability of treatment for Mr. Levy prior
    to and during the extradition proceedings, if he were to be found guilty and
    incarcerated. She found that Mr. Levys conditions could be treated, managed
    and eventually stabilized in custody in the U.S. and that he should be
    extradited.

Arguments

[6]

The applicant argues that the Minister is obliged to refuse surrender
    under s. 44(1)(a) of the
Extradition Act
because the applicants
    surrender would be unjust or oppressive. He submits the following grounds for
    review:

(a)

The
    Minister applied the wrong legal test and imposed too rigorous a standard in
    her decision under s. 44(1)(a) of the
Act;

(b)

The
    Minister misapprehended the issue to be the adequacy of care in the foreign
    state, as opposed to the likelihood of significant harm to the applicants health
    caused by the act itself of extraditing the applicant to the foreign state; and

(c)

The
    Minister erred by speculating that the expected harm to the applicants health
    would be eventually stabilized in the foreign state, contrary to the
    uncontradicted opinions provided by the applicants treatment team.

Analysis

[7]

The standard of review for the Ministers decision is reasonableness:
United
    States of America v. Cavan
, 2015 ONCA 664, 127 O.R. (3d) 430. Provided she
    applied the correct legal test, discussed below, and did not otherwise err in
    law or contravene the principles of natural justice, this court owes deference
    to her decision:
Cavan
,

at para. 58. Her decision is essentially
    an exercise of discretion, indicated by the statutory requirement that she be
    satisfied that the surrender would be unjust or oppressive:
Cavan
,

at
    paras. 45 and 58.

The Minister did not apply the wrong legal test

[8]

The applicant submits that the Minister applied the wrong legal tests,
    which were: outraging the standards of decency and whether ss. 7 or 12 of the
Charter
were violated.  Instead, she should have asked whether Mr.
    Levys surrender would be unjust or oppressive, as required by s. 44(1)(a).
    The applicant submits that the standard applied by the Minister was outdated
    and drawn from cases that were decided under provisions of the
Extradition
    Act
that have since been amended. The ambit of the
Extradition Act
is
    now broader; in particular, a finding that extradition would breach the
Charter
is not required for the Minister to refuse to surrender under s. 44(1)(a).

[9]

The Minister did not apply the wrong legal test. She stated at p. 5 of
    her reasons:

In determining whether to order Mr. Levys surrender, I must
    consider whether his potential incarceration in a prison in the United States
    may have such a negative impact on his health that his surrender would be
    contrary to the principles of fundamental justice under section 7 of the Charter
    or otherwise unjust or oppressive under section 44(1)(a) of the Act (
Burns
).
    Specifically, health concerns can justify a refusal of surrender where
    extradition would aggravate the adverse effects on the health of a person
    sought to the point where it would outrage the standards of decency (
Larabie
    v. R.
(1988), 42 CCC(3d) 385 (CA)).

[10]

Although she did use the language of outraging the standards of
    decency and refers to violations of ss. 7 and 12 of the
Charter
at
    different points in her reasons, taken as a whole, the decision reasonably
    applies the appropriate test of whether surrender would be unjust or
    oppressive. The Minister referred to the correct test throughout her decision.

[11]

In her conclusion on the issue of health at p. 7 of her reasons, the
    Minister stated in my view, the effect of extradition on Mr. Levy would not be
    so extreme as to shock the conscience or outrage the standards of decency,
or
    be otherwise unjust or oppressive
, notwithstanding the status of his
    health (emphasis added). Discussing his personal circumstances at p. 8 of her
    reasons, the Minister stated that I am satisfied that Mr. Levys surrender
    would
not be unjust or oppressive
, or be contrary to the principles of
    fundamental justice, notwithstanding his personal circumstances (emphasis added).
    As the respondent submits, the Minister appears to refer to the case of
R.
    v. Larabie
(1988), 42 C.C.C. (3d) 385 (Ont. H.C), as an example of a
    factually similar case, and not as setting out the standard under s. 44(1)(a).

[12]

In oral argument, the applicant raised a further issue of whether the
    Minister understood the unjust or oppressive threshold as being equivalent to
    outraging the standards of decency. That is, whether she believed that it
    would
only
be unjust or oppressive to extradite the applicant if the
    effect on his health would be so severe as to outrage the standards of decency.
    Counsel pointed to p. 5 of the Ministers decision, in which she noted the
    unjust or oppressive standard and then stated: Specifically, health concerns
    can justify a refusal of surrender where extradition would aggravate the
    adverse effects on the health of a person sought to the point where it would
    outrage the standards of decency (
Larabie
).

[13]

The concern is that the Minister meant to convey that health concerns
    could
only
justify a refusal if they outraged the standards of decency.
    The applicant submits that this is not the test, since unjust or oppressive
    is a lower standard than outraging the standards of decency.

[14]

This section of the Ministers reasons, read in isolation, is concerning
    and could support a conclusion that she applied the wrong test. However, read
    as part of the decision as a whole, this section alone does not demonstrate
    that she misconstrued the legal standard. As noted above, later in her
    decision, she finds that the impacts of extradition on the applicants health
    would not shock the conscience or outrage the standards of decency or be
otherwise
unjust or oppressive (emphasis added). She considered the standard of unjust
    or oppressive separately from the standard of outraging decency, and not as
    equivalent to it. Taken with the reasons as a whole, in which she refers to the
    correct test repeatedly, this section does not show she applied the wrong legal
    standard.

[15]

The test under s. 44(1)(a) is whether the surrender would be unjust or
    oppressive in all the circumstances. The Minister adverted to the correct test
    and her decision is not unreasonable under its framework.

The Minister did not misapprehend the issue of the effect
    of extradition on the applicants health

[16]

The applicant submits that the Minister unreasonably focused on the care
    available to the applicant in the U.S., rather than on the harm he would
    experience from being extradited. The uncontradicted medical evidence showed
    that the very act of extradition would cause significant harm to the applicants
    health. The applicant argues that the Minister addressed the wrong question in
    finding that, once this harm had already occurred, the applicant could be
    adequately cared for in the U.S.

[17]

The Minister properly adverted to the overall effect on the applicant of
    surrender and trial in the U.S. She engaged in the balancing exercise required
    of her under the
Extradition Act
. She acknowledged the evidence that the
    applicant would suffer harm to his physical and mental health upon his
    extradition. She also considered the care available to him in the U.S. before,
    during, and following his trial. Both considerations are components of the
    overall effect of surrender on the applicant.

[18]

The Minister considered the public interest in performing Canadas
    treaty obligations and the U.S. interest in prosecuting crime occurring within
    its borders. Balancing this with the effects on the applicants health and the
    treatment that would be available to him upon his arrival in the U.S., she
    found that it was not unjust or oppressive to surrender Mr. Levy. This decision
    was reasonable.

The Minister was entitled to rely on information from the
    U.S. authorities and this was not speculation

[19]

Finally, the applicant submits that the Minister should not have relied
    on institutional information from the U.S. Marshals Service and Federal
    Bureau of Prisons, because this was not necessarily provided by individual
    medical professionals. Mr. Levy presented evidence from individual doctors in
    his treatment team giving their opinions that he should not travel or stand
    trial in the U.S. He argues that the Minister could not rely on general
    information about the U.S. healthcare system but should have acquired specific
    evidence about how Mr. Levy himself would be treated upon his arrival in the
    U.S., ideally from individual healthcare professionals.

[20]

The Minister was entitled to rely on the information she received from
    the U.S. about the care available before and during trial, and in the prison
    system. She was not required to obtain evidence from individual healthcare
    professionals. Her conclusions about the care available to Mr. Levy in the U.S.
    were not speculative but were based on the evidence that she requested and
    obtained from the relevant authorities. Her decision was reasonable in light of
    all the evidence before her.

Conclusion

[21]

The Ministers decision was reasonable, and the judicial review
    application is dismissed. She did not apply the wrong legal test, did not
    misapprehend the issue of negative effects on the applicants health, and did
    not speculate about the care available in the U.S. She engaged in a balancing
    exercise and there is no basis for this court to interfere with her decision.

Released: G.R.S. November 21,
    2019

M. Tulloch J.A.

I agree. G.R. Strathy C.J.O.

I agree. Doherty J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 1732427 Ontario Inc. v. 1787930
    Ontario Inc., 2019 ONCA 947

DATE: 20191203

DOCKET: C66803, C66871

Rouleau, Roberts and Harvison
    Young JJ.A.

In the
    Matter of Notices of Intention to make a proposal of 1732427 Ontario Inc. and 1787930
    Ontario Inc. both of the City of St. Thomas,
    in the Province of Ontario

Sherry Kettle, for the appellant, Transit Petroleum Inc.

Paul Neil Feldman and Oscar
    Strawczynski, for the respondent,
    1787930 Ontario Inc.

Heard:  November 15, 2019

On appeal from the order of Justice Russell
    M. Raikes of the Superior Court of Justice, dated January 28, 2019, with reasons
    reported at 2019 ONSC 716, and 2019 ONSC 1623.

REASONS FOR DECISION

[1]

The appellant appeals from the motion judges order
    requiring it to pay to the respondent the sum of $35,299.75, plus pre-judgment
    interest, and costs in the sum of $31,767.52.

[2]

The motion judge allowed in part the respondents
    motion to recover monies paid to the appellant after it had filed a notice of
    intention to file a proposal in bankruptcy (NOI) on July 2, 2018. The motion
    judge found that the pre-authorized debit payment in the amount of $83,734.05 (the
    PAD) made to the appellant post-NOI, under a payment plan concluded pre-NOI,
    related to pre-NOI debts. As a result, contrary to s. 69(1)(a) of the
Bankruptcy
    and Insolvency Act
, R.S.C. 1985, c. B-3 (
BIA
), the PAD represented
    a prohibited remedy against the insolvent person or the insolvent persons property.
    The motion judge concluded that the appellant should return the PAD to the
    respondent, net of the $48,434.30 owing to the appellant for post-NOI fuel
    purchases. The appellants entitlement to the latter is not disputed on appeal.

[3]

The appellant submits that the motion judge erred
    in characterizing the payment as the prohibited exercise of a creditors remedy
    when it represented a
bona fide
agreement concluded on July 5, 2018 to satisfy
    past debts in order to continue a vital fuel supply to assist in the respondents
    restructuring.

[4]

The respondent argues that the motion judge
    correctly determined that the July 5th PAD was a prohibited self-help creditors
    remedy because it was payment for past fuel purchases. Moreover, once he
    determined that the PAD was a prohibited remedy, the motion judge was not
    required to consider any alleged agreements because the parties could not
    ratify what was otherwise prohibited. In any event, the respondent maintains
    that the appellant did not raise an alleged July 5th agreement before the motion
    judge but confined its argument to the impact of a pre-NOI agreement.

[5]

In our view, the motion judge erred by failing
    to consider whether the parties had entered into a legitimate agreement to pay
    past debts in order to secure the future supply of fuel. As a result, the
    matter should be remitted to him for a new hearing.

[6]

In determining whether the July 5th PAD was a
    remedy, the motion judge was required to consider all the relevant surrounding circumstances
    in which it occurred. Accordingly, it is useful to set out a brief synopsis of
    the relevant context leading up to and concerning the July 5th PAD and the alleged
    agreement between the parties.

[7]

Up until July 11, 2018, the appellant supplied
    fuel to the respondent, a trucking company. The respondent was experiencing serious
    financial difficulties and had fallen into arrears in payments to the appellant
    for fuel supplied. In June 2018, the parties entered into negotiations to
    conclude an agreement governing payment of past and future fuel purchases.

[8]

While the motion judge declined to determine whether
    the parties had reached an agreement prior to the filing of the NOI on July 2nd,
    the appellant submits that pursuant to the agreement that it says was reached
    on June 28th, on notice to and without objection from the respondent, it submitted
    the PAD for payment on July 3
rd
, which was processed and paid to the
    appellant on July 5th.

[9]

The appellant did not learn of the NOI until its
    meeting with the respondent on July 5, 2018. As noted at para. 21 of the motion
    judges reasons, at that meeting, the respondents owner, Louise Vonk, accompanied
    by its general manager, Blaine Skirtschak, informed the appellants
    representatives, Monique Paul and Trevor Chambers, that the respondent had filed
    a NOI on July 2, 2018 to restrict further action by CRA and to give [the
    respondent] some time to reorganize financially to carry on business.

[10]

In para. 22 of his reasons, the motion judge
    summarized the appellants evidence concerning the respondents representations
    which the appellant says formed the July 5th agreement between the parties:

During the July 5 meeting, Vonk indicated that
    [the respondent] needed [the appellants] support to keep operating and she was
    willing to do whatever was necessary to keep [the appellant] as its fuel supplier.
    She did not request return of the monies received by [the appellant] from the July
    5 PAD.  According to Paul and Chambers, Vonk advised that she allowed the PAD
    to go through because Transit was a vital vendor necessary for [the respondent]
    to remain in business.

[11]

The appellant insists that the issue of a July 5th
    agreement was raised before the motion judge. Paragraph 30 of the motion judges
    reasons provide some support for the appellants submission that it had
    advanced the argument that it was a key supplier who, subsequent to the NOI,
    was permitted to keep the July 5 PAD for past debts in furtherance of an
    agreement to maintain supply to the respondent as it restructured its business.
    Similarly, the appellant points to para. 31 of the affidavit of Trevor Chambers
    in which he deposes that:

Transit specifically relied on the representations
    of [the respondent], including Louise, Blaine and Nathan, that all purchases would
    be paid for by [the respondent] and that the Agreed Payment had been allowed to
    go through so that
[the respondent]
could continue in
    business. Transit continued to supply fuel to [the respondent] post-NOI at [the
    respondents] request and continued to do business with [the respondent] in
    good faith and based on [the respondents] representations.

[12]

To be fair to the motion judge, it is not
    entirely clear to what extent in argument on the motion the appellant characterized
    the July 5th exchanges as constituting an agreement. However, it seems common
    ground that the motion judge did not squarely consider whether, in context, that
    exchange represented a
bona fide
agreement with a key supplier to pay
    past debts in order to secure a vital future supply of fuel for the respondents
    continued operations.

[13]

We do not agree with the respondents submissions
    that the parties could not enter into an agreement for the payment of past
    debts in order to secure future fuel supplies. This would undermine the first stage
    of the
BIA
process that serves to encourage a debtors successful reorganization
    as a going concern.  Creditors and debtors alike benefit from the latters
    continued operation. The goal of the stay and preference provisions under ss.
    69, 95, 96 and 97 of the
BIA
is to give the debtor some breathing room
    to reorganize. Legitimate agreements with key suppliers also form a vital part
    of that process.

[14]

Apposite is the commentary of E. Patrick Shea, Dealing
    with Suppliers in a Reorganization (2008) 37 C.B.R. (5th) 161 who writes:

There is, however, no specific prohibition in
    the
BIA
on the debtor effecting payment of claims provable in the
    proposal proceedings. Instead, the BIA provides the trustee in the proposal (or
    the bankruptcy trustee in the event the proposal fails) with remedies against any
    creditor who receives such a payment on the basis that the payment is a preference.
    Payments to critical suppliers in the context of proposal proceedings are best
    analyzed on the basis that they are a preference.  In the context of
    proposals, section 97 [of the BIA]
[1]
arguably clarifies that
payments to suppliers made in good faith after the
    date the proposal proceedings are commenced (even payments of pre-filing
    claims) are intended to be valid
. [Emphasis added.]

[15]

It is our view whether the parties concluded a
bona
    fide
agreement on July 5th for the payment of past fuel supplies in consideration
    for continued fuel supply was a key issue to be determined on the respondents
    motion. The determination of the issue of the July 5th PAD and alleged agreement
    could affect the motion judges characterization of the PAD as a prohibited remedy
    under s. 69(1) of the
BIA
.  As the motion judge made no factual findings
    respecting this issue, it is not possible nor desirable for this court to come
    to any determination. Given our reasons, the fairest route, as the parties agree,
    is to remit the matter to the motion judge for a new hearing.

[16]

We leave to the motion judges discretion how best
    to manage the re-adjudication of this matter. With respect to the pre-NOI
    agreement, the motion judge concluded that, if he were inclined to do so, conflicts
    in the evidentiary record precluded him from making any findings concerning that
    agreement and he would order that the issue proceed to trial. It may be that is
    the case in relation to the alleged July 5th agreement. It will be up to the motion
    judge to decide whether he can make the necessary findings on the motion or
    whether the resolution of all these issues requires a trial.

[17]

Accordingly, we set aside the motion judges
    order and remit the matter to the motion judge for a new hearing on all issues
    except for the appellants entitlement to the payment of $48,434.30 for
    post-NOI fuel purchases.

[18]

The appellant is entitled to its partial
    indemnity costs of the appeal in the agreed upon amount of $15,000, inclusive
    of disbursements and applicable taxes. The disposition of the costs of the
    motion below is reserved to the motion judge.

Paul
    Rouleau J.A.

L.B.
    Roberts J.A.

A.
    Harvison Young J.A.

[1]

Section
    97(1) of the
BIA
provides as follows:  No payment, contract, dealing or
    transaction to, by or with a bankrupt made between the date of the initial bankruptcy
    event and the date of the bankruptcy is valid, except the following, which are
    valid if made in good faith, subject to the provisions of this Act with respect
    to the effect of bankruptcy on an execution, attachment or other process
    against property, and subject to the provisions of this Act respecting
    preferences and transfers at undervalue:

(a) a payment by the bankruptcy to any of the bankrupts
    creditors;

(b) a payment or delivery to the bankrupt;

(c) a transfer by the bankrupt for adequate valuable
    consideration; and

(d) a contract, dealing or transaction, including any giving
    of security, by or with the bankrupt for adequate valuable consideration.


COURT OF APPEAL FOR ONTARIO

CITATION: Angus v. Port Hope (Municipality), 2019 ONCA 1015

DATE: 20191224

DOCKET: C66964

Roberts, Zarnett and Jamal JJ.A.

BETWEEN

Ian Angus and Daphne Angus

Plaintiffs

(Appellants)

and

The Corporation of the Municipality of Port Hope

Defendant

(Respondent)

M. John Ewart, for the appellants

Kristin Muszynski and Kevin Cooke, for the respondent

Heard: December 18, 2019

On appeal from the judgment of Justice Susan Woodley of
    the Superior Court of Justice, dated April 25, 2019, with reasons reported at
    2019 ONSC 2596.

REASONS FOR DECISION

[1]

The appellants appeal the summary judgment which dismissed the remaining
    claims in their action. Those claims were for damages alleged to have been
    caused by the respondents enactment of a By-Law and its unsuccessful
    prosecution of the appellants for breach of that By-Law. For the reasons that follow
    we dismiss the appeal.

[2]

The respondent passed By-Law No. 47/2012 on May 29, 2012. It required
    property owners to obtain a permit before placing or dumping fill on their
    property. In order to obtain a permit, various information had to be provided;
    the By-Law also required the payment of a fee.

[3]

The appellants, shortly before the By-Law came into force, had entered
    into an agreement for fill to be placed in an abandoned gravel pit on property
    owned by the appellant Mrs. Angus. When the respondent objected to the
    continuing placing of fill without a permit after the By-Law came into effect,
    the appellants: (a) took the position that the By-Law did not apply to the
    property; (b) filled out an incomplete application for a permit, without submitting
    the required fees or filing the required documents in support of the
    application; and (c) for a time, continued to accept deliveries of fill on the
    property. Although the respondent advised of what was deficient in the
    application for the permit, the appellants took no further steps to fulfill the
    requirements.

[4]

Litigation then ensued. On March 18, 2013, the respondent commenced a
    prosecution for breach of the By-Law. On May 30, 2013, the appellants commenced
    this action challenging the validity and applicability of the By-Law.

[5]

On June 14, 2016, an order was made in this action declaring that the
    By-Law did apply to the appellants property, holding that the fees the By-Law imposed
    were
ultra vires
, and holding that the By-Law was otherwise valid and
    in full force and effect. No appeal was taken from that order.

[6]

The prosecution for breach of the By-Law was stayed for a period of time
    while its validity was challenged in this action. In November 2016, the
    prosecution was continued. On October 16, 2017, the prosecution was permanently
    stayed on the basis that the appellants right to a trial within a reasonable
    period of time had been breached. No appeal was taken from the permanent stay
    order.

[7]

The appellants then amended this action to include claims for malicious
    prosecution and misfeasance and abuse of public office.

[8]

The respondent moved for summary judgment dismissing the claims in the amended
    action. The appellants brought their own motion for summary judgment on their
    claims. Based on the late filing of evidence by the appellants the motions
    judge declined to deal with the appellants motion until after she had disposed
    of the respondents motion, and then only if the result was other than a
    dismissal of the action.

[9]

The motions judge granted summary judgment dismissing those parts of the
    appellants action that had not been dealt with by prior decisions. It is from
    this order that the appellants appeal.

[10]

The appellants do not argue that this was an inappropriate case for
    summary judgment. Rather, they submit that the motions judge made reversible
    errors in dismissing their claims for: (a) malicious prosecution of charges
    against them under the By-Law; (b) misfeasance and abuse of public office; and
    (c) damages resulting from the fee provisions of the By-Law being invalid. The
    appellants also submit that the motions judge erred in not dealing with both summary
    judgment motions together with the additional evidence the appellants delivered
    on their motion. We do not give effect to any of these grounds of appeal.

[11]

The appellants do not dispute that the motions judge correctly
    articulated the four-part test the appellants had to meet to maintain an action
    for malicious prosecution. No party disputes her finding that the first two
    elements of the test were met. We disagree with the appellants contention that
    the motions judge erred in finding that the appellants did not meet the third
    part of the test, that is, that she erred in finding there to be no genuine
    issue requiring a trial about whether the respondent had reasonable and
    probable cause to initiate and continue the proceeding. There was evidence on
    which she could find the respondent had a subjective belief at the relevant
    times that fill had been deposited on the appellants property after the By-Law
    came into force, and that the By-Law had been breached as the appellants had
    not obtained the required permit. And the evidence justified her finding that
    such a view was objectively reasonable at the relevant times. She correctly
    found this to be fatal to the appellants cause of action for malicious
    prosecution. Similarly, her finding that there was no evidence that the
    respondent wilfully perverted or abused the process grounded her finding that
    the appellants action failed the fourth element of the malicious prosecution test.
    Her findings are entitled to deference and are not the product of legal errors.

[12]

The motions judge correctly articulated the test for misfeasance and abuse
    of public office, noting that it requires deliberate unlawful conduct in the
    exercise of public functions and awareness that the conduct is unlawful and
    likely to injure the plaintiff. There was no issue that the respondent had the
    jurisdiction to enact the By-Law and that it was a By-Law of general
    application to all residents of Port Hope. The motions judge noted that the By-Law
    was passed after months of research and consultation with various stakeholders
    and was similar to those in effect in neighbouring municipalities. She found
    that there was no evidence that the By-Law was enacted for other than a proper
    public purpose, let alone in bad faith, and no evidence to support a finding
    that the respondent acted in bad faith by including a fee provision in the By-Law.
    She correctly noted that the fact that the fee provision was later declared
ultra
    vires
could not be equated with a bad faith enactment. We see no error in
    these findings that could justify appellate intervention.

[13]

The motions judges determination that neither of the causes of action
    advanced by the appellants raised a genuine issue requiring a trial was
    sufficient to dispose of the claims for damages that were advancedthey were
    dependant on a valid cause of action. We would add that for the additional
    reason given by the motions judge, we see no merit in the appellants argument
    that there is a claim for damages arising from the fee provisions initially
    made part of the By-Law having been later found to be
ultra vires
.

[14]

The motions judge found that the appellants had not provided a complete
    application for a permit, leaving aside that they did not submit the requested
    fees that were later found to be
ultra vires
. Assuming without
    deciding that the appellants could complain if they were denied a permit
    because they did not pay fees which were later declared invalid, we see no
    error in the motions judges determination that they could not complain when
    their application was deficient for reasons other than the non-payment of fees.

[15]

Finally, the motions judges decision to proceed with the respondents
    motion for summary judgment and not to allow late evidence to be filed on it
    was within her discretion, as was her decision to defer the appellants motion
    and to deal with it only if the respondents motion failed. We are not
    satisfied that she made any reversible error in so exercising her discretion.
    She had a long familiarity with the matter and was well placed to efficiently
    and fairly manage the motions. Nor in argument were we pointed to anything in
    the late evidence of the appellants that, if considered by the motions judge,
    could reasonably have been expected to change the result.

[16]

Accordingly, the appeal is dismissed. The respondent is entitled to its
    costs of the appeal, fixed at $15,000 inclusive of disbursements and applicable
    taxes.

L.B.
    Roberts J.A.

B.
    Zarnett J.A.

M.
    Jamal J.A.