COURT OF APPEAL FOR ONTARIO

CITATION: Tanudjaja v. Canada (Attorney General), 2014 ONCA
    852

DATE: 20141201

DOCKET: C57714

Feldman, Strathy and Pardu JJ.A.

BETWEEN

Jennifer Tanudjaja, Janice Arsenault, Ansat
    Mahmood, Brian DuBourdieu, Centre for Equality Rights in Accommodation

Appellants

and

The
    Attorney General of Canada and the

Attorney General of
    Ontario

Respondents

Tracy Heffernan, Fay Faraday and Peter Rosenthal, for
    the appellants

Janet E. Minor and Shannon Chace, for the respondent the
    Attorney General of Ontario

Michael H. Morris and Gail Sinclair, for the respondent
    the Attorney General of Canada

Anthony D. Griffin, for the intervener the Ontario Human
    Rights Commission

Avvy Go and Mary Eberts, for the intervener the Colour
    of Poverty/Colour of Change Network

Cheryl Milne, for the intervener the David Asper Centre
    for Constitutional Rights

Marie Chen and Jackie Esmonde, for the intervener the coalition
    of the Income Security and Advocacy Centre, the ODSP Action Coalition and the
    Steering Committee on Social Assistance

Vasuda Sinha, Rahool Agarwal and Lauren Posloski, for
    the intervener the Womens Legal Education and Action Fund

Molly Reynolds and Ryan Lax, for the intervener the
    coalition of Amnesty International Canada and the International Network for
    Economic, Social and Cultural Rights

Laurie Letheren and Renée Lang, for the intervener the
    coalition of ARCH Disability Law Centre, the Dream Team, Canadian HIV/AIDS
    Legal Network and HIV/AIDS Legal Clinic Ontario

Martha Jackman and Benjamin Ries, for the intervener the
    coalition of the Charter Committee on Poverty, Pivot Legal Society and Justice
    for Girls

Heard: May 26, 27 and 29, 2014

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice dated September 6, 2013, with reasons reported
    at 2013 ONSC 5410, 116 O.R. (3d) 574.

Pardu J.A.:

[1]

The appellants ask this Court to overturn a decision of a motion judge
    dismissing their application for relief pursuant to the
Charter of Rights
    and Freedoms
. The motion judge concluded it was plain and obvious the application
    did not disclose a viable cause of action and the application had no reasonable
    prospect of success. The motion judge also found the appellants claim was not
    justiciable.

The Applicants

[2]

The application was brought by four individuals and an organization
    devoted to human rights and equality rights in housing.

[3]

The individual applicants suffer from homelessness and inadequate
    housing.

[4]

Brian DuBourdieu was diagnosed with cancer. As a result of his illness
    he was unable to work, unable to pay his rent and lost his apartment. He has
    been living on the streets and in shelters and has been on the waiting list for
    subsidized housing for four years.

[5]

Jennifer Tanudjaja is a young single mother in receipt of social
    assistance living in precarious housing with her two sons. Despite extensive
    efforts, Ms. Tanudjaja has been unable to secure housing within the social assistance
    shelter allowance. Her rent is almost double the shelter allowance allotted and
    is more than her total social assistance benefit. She has been on the waiting
    list for subsidized housing for over two years.

[6]

Ansar Mahmood was severely disabled in an industrial accident. Two of
    his children are also disabled, including one son who uses a wheelchair. Mr.
    Mahmood lives with his wife and four children in a two-bedroom apartment that
    is neither accessible nor safe for persons with disabilities. The family survives
    on a fixed income and has been on the waiting list for subsidized accessible
    housing for four years.

[7]

Janice Arsenault and her two young sons became homeless after her spouse
    died suddenly. For several years she lived in shelters and on the streets. She
    was forced to place her children in her parents care. Now housed, she
    currently spends 64% of her small monthly income on rent, placing her in danger
    of becoming homeless again.

[8]

The Centre for Equality Rights in Accommodation (CERA) is an Ontario-based
    non-profit organization which provides direct services to low income tenants
    and the homeless on human rights and housing issues. CERA is membership-based.
    Many of CERAs members have experienced inadequate housing and homelessness.

The Application

[9]

The appellants allege that actions and inaction on the part of Canada
    and Ontario have resulted in homelessness and inadequate housing. They argue
    that the governments have taken an approach that violates their s. 7 and s. 15
    rights under the
Charter
. The core of their application is captured in
    para. 14 of the Amended Notice of Application, which provides:

Canada and Ontario have instituted changes to legislation,
    policies, programs and services which have resulted in homelessness and
    inadequate housing. Canada and Ontario have either taken no measures, and/or
    have taken inadequate measures, to address the impact of these changes on
    groups most vulnerable to, and at risk of, becoming homeless. Canada and
    Ontario have failed to undertake appropriate strategic coordination to ensure
    that government programs effectively protect those who are homeless or most at
    risk of homelessness. As a result, they have created and sustained conditions
    which lead to, support and sustain homelessness and inadequate housing.

[10]

The
    appellants expressly disavow any challenge to any particular legislation, nor
    do they allege that the particular application of any legislation or policy to
    any individual has violated his or her constitutional rights. They do not point
    to a particular law which they say in purpose or effect perpetuates prejudice
    and disadvantage to members of a group on the basis of personal characteristics
    within s. 15(1)
[1]
.
    They do not identify any particular law which violates the s. 7 right to life,
    liberty and security of the person. Rather, they submit that the social
    conditions created by the overall approach of the federal and provincial
    governments violate their rights to adequate housing.

[11]

They
    submit that Canada has eroded access to affordable housing by:

(a)     cancelling
    funding for the construction of new social housing;

(b)     withdrawing
    from administration of affordable rental housing;

(c)     phasing
    out funding for affordable housing projects under cost-sharing agreements with
    the provinces; and

(d)     failing
    to institute a rent supplement program comparable to those in other countries.

[12]

They
    submit that Ontario has also diminished access to affordable housing by:

(a)

terminating the provincial program for constructing new social housing;

(b)

eliminating protection against converting affordable rental housing to
    non-rental uses and eliminating rent regulation;

(c)

downloading the cost and administration of existing social housing to
    municipalities;

(d)

failing to implement a rent supplement program comparable to those in
    other countries;

(e)

downloading responsibility for funding development of new social housing
    to municipalities which lack the tax base to support such construction; and

(f)

heightening insecurity of tenancy by creating administrative procedures
    that facilitate evictions.

[13]

The
    appellants also argue that Canada and Ontario have diminished income support
    programs, and that this has increased the risk of homelessness and inadequate
    housing. In 1996, federal transfer payments were no longer tied to a minimum standard
    for social assistance. Amendments to the
Employment Insurance Act
S.C.
    1996, c. 23, resulted in fewer people being entitled to benefits and Ontario
    has reduced welfare rates.

[14]

Finally,
    the appellants submit that deinstitutionalization of persons afflicted with
    disabilities without adequate community support has resulted in widespread
    homelessness amongst those persons.

[15]

The
    appellants claim wide-ranging remedies in their application:

a)

A declaration that
    decisions, programs, actions and failures to act by the government of Canada
    (Canada) and the government of Ontario (Ontario) have created conditions
    that lead to, support and sustain conditions of homelessness and inadequate
    housing. Canada and Ontario have failed to effectively address the problems of
    homelessness and inadequate housing.

b)

A declaration that
    Canada and Ontario have obligations pursuant to sections 7 and 15 of the
Canadian
    Charter of Rights and Freedoms
(the
Charter
) to implement
    effective national and provincial strategies to reduce and eventually eliminate
    homelessness and inadequate housing.

c)

A declaration that the
    failure of Canada and Ontario to have implemented effective national and
    provincial strategies to reduce and eliminate homelessness and inadequate
    housing violates the applicants and others rights to life, liberty and
    security of the person contrary to s.7 of the
Charter
. These
    violations are not in accordance with the principles of fundamental justice and
    are not demonstrably justifiable under section 1 of the
Charter
.

d)

A declaration that the
    failure of Canada and Ontario to have implemented effective national and
    provincial strategies to reduce and eliminate homelessness and inadequate
    housing violates the applicants and others right to equality contrary to s.
    15(1) of the
Charter
. These violations are not demonstrably
    justifiable under section 1 of the
Charter
.

e)

An order that Canada
    and Ontario must implement effective national and provincial strategies to
    reduce and eliminate homelessness and inadequate housing, and that such
    strategies:

i.

must be developed and implemented in consultation with affected groups;
    and

ii.

must include timetables, reporting and monitoring regimes, outcome
    measurements and complaints mechanisms;

f)

An order
    that [the Superior Court of Justice] shall remain seized of supervisory
    jurisdiction to address concerns regarding implementation of the order in (e).

The motion judges decision

[16]

The
    motion judge struck the appellants application, without leave to amend, on the
    basis that it was plain and obvious that the application could not succeed. He
    found that the application disclosed no reasonable cause of action and was not
    justiciable.

[17]

With
    respect to s. 7 of the
Charter,
the motion judge concluded that there
    was no positive
Charter
obligation which required Canada and Ontario
    to provide for affordable, adequate, accessible housing and that in any
    event, the appellants had not identified any breach of the principles of
    fundamental justice. With respect to s. 15 of the
Charter
, he found
    that the actions and decisions complained of do not deny the homeless a
    benefit Canada and Ontario provide to others or impose a burden not levied on
    others, meaning there can be no breach of s. 15 of the
Charter
. In
    any event he concluded that homelessness and inadequate housing were not
    analogous grounds under s. 15 of the
Charter
. The free standing claim
    that homelessness might disproportionately affect persons such as women,
    single mothers, persons with mental and physical disabilities, aboriginal
    persons, seniors, youth, racialized persons, newcomers and persons in receipt
    of social assistance did not engage s. 15 of the
Charter
, in the
    absence of discriminatory laws, or discriminatory application of those laws.
    Finally he concluded that in any event, the issues raised by the application
    were not justiciable, that the implementation of the relief sought would cross
    institutional boundaries and enter into the area reserved for the Legislature.

The Interveners

[18]

The
    following eight organizations, or groups of organizations, were granted leave
    to intervene in this appeal under Rule 13.02 of the
Rules of Civil
    Procedure
: (1) a coalition of the
Charter
Committee on Poverty,
    Pivot Legal Society and Justice for Girls (the
Charter
Committee
    Coalition); (2) a coalition of Amnesty International Canada and the
    International Network for Economic, Social and Cultural Rights (the Amnesty
    Coalition); (3) the David Asper Centre for Constitutional Rights (the Asper
    Centre); (4) a coalition of ARCH Disability Law Centre, the Dream Team,
    Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario (the
    ARCH Coalition); (5) a coalition of the Income Security Advocacy Centre, the
    ODSP Action Coalition and the Steering Committee on Social Assistance (the
    Income Security Coalition); (6) the Colour of Poverty/Colour of Change Network
    (COPC); (7) the Ontario Human Rights Commission (OHRC); and (8) the Womens
    Legal Education Action Fund Inc. (LEAF). Each filed a factum and made brief
    oral submissions, generally in support of the appellants.

Analysis

[19]

I
    would uphold the motion judges conclusion that this application is not
    justiciable. In essence, the application asserts that Canada and Ontario have
    given insufficient priority to issues of homelessness and inadequate housing.

[20]

As
    indicated in
Canada (Auditor-General) v. Canada (Minister of Energy, Mines
    &

Resources)
,
[1989] 2 S.C.R. 49 at 90-91, [a]n inquiry into justiciability is, first and
    foremost, a normative inquiry into the appropriateness as a matter of
    constitutional judicial policy of the courts deciding a given issue, or instead
    deferring to other decision making institutions of the polity.

[21]

Having
    analysed the jurisprudence relating to justiciability in Lorne M. Sossin,
Boundaries
    of Judicial Review: The Law of Justiciability in Canada
, 2d ed. (Toronto:
    Carswell, 2012), the author identified several relevant factors, at p. 162:

Political questions, therefore, must demonstrably be unsuitable
    for adjudication. These will typically involve moral, strategic, ideological,
    historical or policy considerations that are not susceptible to resolution
    through adversarial presentation of evidence or the judicial process. Justiciable
    questions and political questions lie at opposing ends of a jurisdiction
    spectrum.

[T]he political nature of a matter raises two related dilemmas
    for courts. The first is the dilemma of institutional capacity. Courts are
    designed to make pronouncements of law. Arguably, they accomplish this goal
    more effectively and efficiently than any other institution could. Where the
    heart of a dispute is political rather than legal, however, courts may have no
    particular advantage over other institutions in their expertise, and may well
    be less effective and efficient than other branches of government in resolving
    such controversies, as the judiciary is neither representative of the political
    spectrum, nor democratically accountable.

[22]

A
    challenge to a particular law or particular application of such a law is an
    archetypal feature of
Charter
challenges under s. 7 and s. 15. As
    observed in
Re Canada Assistance Plan,
[1991] 2 S.C.R. 525, at p. 545:

In considering its appropriate role the Court must determine
    whether the question is purely political in nature, and should therefore be
    determined in another forum or whether it has a sufficient legal component to
    warrant the intervention of the judicial branch.

[23]

The
    Supreme Court discussed the difference between a political issue and a legal
    issue in
Canada (Attorney General) v. PHS Community Services Society
,
    2011 SCC 44, [2011] 2 S.C.R. 134, and
Chaoulli v. Quebec (Attorney General)
,
    2005 SCC 35, [2005] 1 S.C.R. 791. In both cases, the Attorneys General argued
    that the subject matter of the
Charter
challenge was immune from
    scrutiny, and the Supreme Court disagreed. Both cases are distinguishable.

[24]

In
Canada (Attorney General) v. PHS Community Services Society
, the Court
    observed, at para. 105:

The issue of illegal drug use and addiction is a complex one
    which attracts a variety of social, political, scientific and moral reactions.
    There is room for disagreement between reasonable people concerning how
    addiction should be treated. It is for the relevant governments, not the Court,
    to make criminal and health policy. However, when a policy is translated
into law or state action,

those
laws
    and actions
are subject to scrutiny under the
Charter
:
Chaoulli
,

at para. 89, per Deschamps J., at para. 107, per
    McLachlin C.J. and Major J., and at para. 183, per Binnie and LeBel JJ.;
Rodriguez,
at pp. 589-90, per Sopinka J. The issue before the Court at this point is
    not whether harm or abstinence-based programmes are the best approach to
    resolving illegal drug use. It is simply whether Canada has limited the rights
    of the claimants in a manner that does not comply with the
Charter
.
    [Emphasis added]

[25]

In
Chaoulli v. Quebec (Attorney General),
2005 SCC 35, [2005] 1 S.C.R.
    791, the applicant challenged a Quebec law that prohibited private health
    insurance for services that were available in the public sector. At para. 107,
    McLachlin C.J. and Major J. said:

While the decision about the type of health care system Quebec
    should adopt falls to the legislature of the province, the resulting
    legislation, like
all
    laws
, is subject to constitutional limits, including those
    imposed by s. 7 of the
Charter
. [Emphasis added]

[26]

Binnie
    and LeBel JJ. (dissenting on the merits in
Chaoulli
) also rejected the
    argument of the Attorneys General of Canada and Quebec that the claims advanced
    by the appellant were inherently political and therefore not properly
    justiciable by the courts. They pointed, at para. 183, to s. 52 of the
Constitution
    Act, 1982,
which affirms the constitutional power and
obligation
of courts to declare laws of no force or effect to the extent of their
    inconsistency with the Constitution (emphasis in original).

[27]

In
    this case, unlike in
PHS Community Services
(where a specific state
    action was challenged) and
Chaoulli
(where a specific law was
    challenged) there is no sufficient legal component to engage the decision-making
    capacity of the courts.

[28]

In
Chaoulli
,

the
    Supreme Court found that the legislative prohibition against private insurance
    contained in the
Hospital Insurance Act,
R.S.Q. c. A-29, engaged the
    appellants rights to security of the person and was arbitrary in that no link
    was established to tie the need for the prohibition to the goal of maintaining
    quality public health care. That kind of analysis, a comparison between the
    legislative means and purpose, is impossible in this case.

[29]

This
    is not to say that constitutional violations caused by a network of government
    programs can never be addressed, particularly when the issue may otherwise be
    evasive of review.

[30]

There
    are several aspects of this application, however, that make it unsuitable for
Charter
scrutiny. Here the appellants assert that s. 7 confers a general freestanding
    right to adequate housing. This is a doubtful proposition in light of
Chaoulli
,
    where McLachlin C.J. and Major J. made the following unequivocal statement, at
    para. 104:

The
Charter
does not confer a freestanding right to
    health care. However, where the government puts in place a scheme to provide
    health care, that scheme must comply with the
Charter
.

[31]

Further, as this Court noted in
Wynberg v. Ontario
(2006),
    82 O.R. (3d) 561, leave to appeal denied, [2006] S.C.C.A. No. 441, at para.
    225:

[I]n
Gosselin, supra
, the Supreme Court of Canada rejected an argument that s. 7 of
    the
Charter
requires the provision of a
    minimum level of social assistance adequate to meet basic needs.

[32]

Moreover,
    the diffuse and broad nature of the claims here does not permit an analysis
    under s. 1 of the
Charter
. As indicated in
R. v. Oakes
,
    [1986] 1 S.C.R. 103, in the event of a violation of a right guaranteed by the
Charter
,
    the legislation will nonetheless be sustained if the objective of the
    legislation is pressing and substantial, the rights violation is rationally
    connected to the purpose of the legislation, the violation minimally impairs
    the guaranteed right, and the impact of the infringement of the right does not
    outweigh the value of the legislative object. Here, in the absence of any
    impugned law there is no basis to make that comparison.

[33]

Finally,
    there is no judicially discoverable and manageable standard for assessing in
    general whether housing policy is adequate or whether insufficient priority has
    been given in general to the needs of the homeless. This is not a question that
    can be resolved by application of law, but rather it engages the accountability
    of the legislatures. Issues of broad economic policy and priorities are
    unsuited to judicial review. Here the court is not asked to engage in a court-like
    function but rather to embark on a course more resembling a public inquiry into
    the adequacy of housing policy.

[34]

Were
    the court to confine its remedy to a bare declaration that a government was
    required to develop a housing policy, that would be so devoid of content as to
    be effectively meaningless. To embark, as asked, on judicial supervision of the
    adequacy of housing policy developed by Canada and Ontario takes the court well
    beyond the limits of its institutional capacity. All agree that housing policy
    is enormously complex. It is influenced by matters as diverse as zoning bylaws,
    interest rates, procedures governing landlord and tenant matters, income tax
    treatment of rental housing, not to mention the involvement of the private sector
    and the state of the economy generally. Nor can housing policy be treated monolithically.
    The needs of aboriginal communities, northern regions, and urban centres are
    all different, across the country.

[35]

I
    add that complexity alone, sensitivity of political issues, the potential for significant
    ramifications flowing from a court decision and a preference that legislatures
    alone deal with a matter are not sufficient on their own to permit a court to
    decline to hear a matter on the ground of justiciability: see, for example,
Chaoulli
,

at para. 107. Again, the issue
    is one of institutional competence. The question is whether there is a
    sufficient legal component to anchor the analysis.

[36]

The
    application here is demonstrably unsuitable for adjudication, and the motion
    judge was correct to dismiss it on the basis that it was not justiciable.

[37]

Given
    that this application was properly dismissed on the ground that it did not
    raise justiciable issues, it is not necessary to explore the limits, in a
    justiciable context, of the extent to which positive obligations may be imposed
    on government to remedy violations of the
Charter
, a door left
    slightly ajar in
Gosselin v. Quebec
, 2002 SCC 84, [2002] 4 S.C.R. 429.
    Nor is it necessary to determine whether homelessness can be an analogous
    ground of discrimination under s. 15 of the
Charter
in some contexts.

[38]

The
    appellants also argue that the motion judge ought to have refused to hear the respondents
    motions to dismiss because the governments did not move to dismiss the
    application until two years after the application was issued on May 26, 2010,
    and after the appellants had compiled a voluminous record which was served on
    the respondents on November 22, 2012. Six months later the respondents advised
    the appellants that they had reviewed the record, sought instructions, and
    consulted each other and would respond with motions to strike. The motion judge
    found that it was not reasonable to require that the motion to strike be
    brought before the record was served, and that only then would the respondents
    have an appreciation of the case to meet. Given the size of the record and the
    significance of the issues raised, the motion judge did not consider that six
    months was so long as to justify refusal to hear the motions to strike. I see
    no reason to interfere with this discretionary decision.

[39]

I
    would add that although to issue of leave to amend was raised during argument,
    the appellants did not propose any specific amendment and I cannot conceive of any
    amendment that would cure the absence of a justiciable issue. None of the
    parties or interveners thought it necessary to refer to any part of the
    evidentiary record, and I would not speculate that there is anything in that
    record which might alter these conclusions. The appeal is therefore dismissed,
    without costs by agreement of the parties.

G. Pardu J.A.

I agree G. R.
    Strathy J.A.

Feldman J.A. (Dissenting):

Overview

[40]

I
    have had the benefit of reading the reasons of Pardu J.A., but I do not agree
    with her conclusion that the appeal should be dismissed.

[41]

The
    appellants seek constitutional remedies under ss. 7 and 15 of the
Canadian
    Charter of Rights and Freedoms
against the governments of Ontario and
    Canada for the myriad of problems related to homelessness and inadequate
    housing in this province and this country. The application does not attack any
    specific piece or pieces of legislation. Rather, the appellants seek remedies
    for what they say is the unconstitutional effect of the governments withdrawal
    of programs and failure to legislate.

[42]

The
    application for constitutional relief was struck out at the pleadings stage
    before the court had the opportunity to consider the 16-volume evidentiary
    record filed by the appellants.

[43]

In
    my view, it was an error of law to strike this application at the pleadings
    stage. The application raises significant issues of public importance. The
    appellants approach to
Charter
claims is admittedly novel. But given
    the jurisprudential journey of the
Charter
s development to date, it
    is neither plain nor obvious that the appellants claims are doomed to fail.

[44]

I
    would allow the appeal, and allow the application to proceed.

Analysis

(1)

The Rule in
Hunt v. Carey Canada Inc
.

[45]

The
    respondents moved to strike the appellants application under rule 14.09 and
    rule 21.01(1)(b) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194, on the ground that the application disclosed no reasonable cause of
    action. The leading case on the test for striking a claim as disclosing no
    reasonable cause of action is the Supreme Court of Canadas decision in
Hunt
    v. Carey Canada Inc
., [1990] 2 S.C.R. 959.

[46]

Justice
    Wilson summarized her holding in
Hunt
,

at p. 980:

[A]ssuming that the facts as stated in the statement of claim
    can be proved, is it plain and obvious that the plaintiffs statement of
    claim discloses no reasonable cause of action? As in England, if there is a
    chance that the plaintiff might succeed, then the plaintiff should not be driven
    from the judgment seat. Neither the length and complexity of the issues, the
    novelty of the cause of action, nor the potential for the defendant to present
    a strong defence should prevent the plaintiff from proceeding with his or her
    case. Only if the action is certain to fail because it contains a radical
    defectshould the relevant portions of a plaintiffs statement of claim be
    struck out.

[47]

Justice
    Wilson emphasized that novelty alone is not a reason to strike a claim. Rather,
    the claim must be certain to fail because, as pleaded, it contains a radical
    defect. Chief Justice McLachlin recently discussed these principles in
R.
    v. Imperial Tobacco Canada Ltd
., 2011
    SCC 42, [2011] 3 S.C.R. 45
. On the issue of the proper approach to
    novel claims, she stated, at para. 21:

Valuable as it is, the motion to strike is a tool that must be
    used with care. The law is not static and unchanging. Actions that yesterday
    were deemed hopeless may tomorrow succeed. Before
Donoghue
v. Stevenson
, [1932] A.C. 562
    (H.L.) introduced a general duty of care to ones neighbour premised on
    foreseeability, few would have predicted that, absent a contractual
    relationship, a bottling company could be held liable for physical injury and
    emotional trauma resulting from a snail in a bottle of ginger beer. Before
Hedley
    Byrne & Co. v. Heller & Partners, Ltd.
, [1963] 2 All E.R. 575
    (H.L.),

a tort action for negligent misstatement would have been
    regarded as incapable of success. The history of our law reveals that often new
    developments in the law first surface on motions to strike or similar
    preliminary motions, like the one at issue in
Donoghue v. Stevenson.
Therefore,
    on a motion to strike, it is not determinative that the law has not yet
    recognized the particular claim. The court must rather ask whether, assuming
    the facts pleaded are true, there is a reasonable prospect that the claim will
    succeed. The approach must be generous and err on the side of permitting a
    novel but arguable claim to proceed to trial.

[48]

In
    this passage, the Chief Justice reminds us that some very significant
    innovations in the law have developed from motions to strike or similar
    preliminary motions, including the general duty of care owed to ones
    neighbour, which came from the House of Lords decision on such a motion in
Donoghue
    v. Stevenson
.

[49]

To
    summarize, a claim should not be struck out at the pleadings stage unless it
    has no reasonable prospect of success, taking the facts pleaded to be true. The
    novelty of the claim alone is not a reason to strike the claim. Rather, there
    must be a radical defect in the claim that will be fatal to its success. The
    purpose of a motion to strike is to weed out, at an early stage, claims that
    have no reasonable chance of success, either because the legal issue raised has
    been conclusively decided against the claim or because the facts, taken at
    their highest, cannot support the claim. The motion to strike should not be
    used, however, as a tool to frustrate potential developments in the law.

(2)

The appellants
Charter
claims

[50]

In
    the amended notice of application, the appellants set out the basis for their
Charter
claims, at paras. 34-38:

34. The harm caused by Canadas and Ontarios failure to
    implement effective strategies to address homelessness and inadequate housing
    deprives the applicants and others similarly affected of life, liberty and
    security of the person in violation of section 7 of the
Charter
. This
    deprivation is not in accordance with the principles of fundamental justice.
    The deprivation is arbitrary, disproportionate to any government interest,
    fundamentally unfair to the applicants, and contrary to international human
    rights norms. Further, Canadas and Ontarios failure to effectively address
    homelessness and inadequate housing violate s. 15 of the
Charter
by
    creating and sustaining conditions of inequality.

35. Those who are homeless and inadequately housed are subject
    to widespread discriminatory prejudice and stereotype and have been
    historically disadvantaged in Canadian society. Their rights, needs and
    interests have been frequently ignored or overlooked by governments. People who
    are homeless and inadequately housed are perhaps the most marginalized,
    disempowered, precarious and vulnerable group in Canadian society.

36. Canadas and Ontarios failure to adopt effective
    strategies to address homelessness and inadequate housing, result in the further
    marginalization, exclusion and deprivation of this group. Canada and Ontario
    have failed to take into account the circumstances of people who are homeless
    and have created additional burdens, disadvantage, prejudice and stereotypes,
    in violation of section 15 of the
Charter
.

37. Furthermore the persons affected by homelessness and the
    lack of adequate housing are disproportionately members of other groups
    protected from discrimination under s. 15(1) including: women, single mothers,
    persons with mental and physical disabilities, Aboriginal persons, seniors,
    youth, racialized persons, newcomers and persons in receipt of social
    assistance. Canadas and Ontarios failure to implement effective strategies to
    address homelessness and inadequate housing therefore constitutes adverse
    effects discrimination against these groups under s. 15(1).

38. There is no pressing and substantial objective served by
    these violations and the violations are not demonstrably justifiable under s. 1
    of the
Charter
.

(3)

The appellants s. 7 claim should not be struck

[51]

In
    a lengthy discussion, the motion judge defines the parameters of s. 7 of the
Charter
,

as if those parameters were settled law. He concludes that the appellants
    claim does not fit within those settled parameters, and as a result, it is
    plain and obvious that their claim cannot succeed.

[52]

In
    my view, there are four problems with the motion judges approach: 1) he
    misunderstood the appellants s. 7 claim and stated it in an overly broad
    manner; 2) he erred in stating that the s. 7 jurisprudence on whether positive
    obligations can be imposed on governments to address homelessness is settled;
    3) he erred in purporting to define the law in a critical area of Canadian
    jurisprudence on a motion to strike; and 4) most importantly, he erred in
    concluding that the issue of whether the appellants had a potential claim under
    s. 7 could be decided without considering the full evidentiary record.

[53]

The
    motion judge first erred in misconstruing the appellants claim. At para. 34,
    the motion judge articulated the claim as follows:

The position taken by the applicants asserts that the
Charter
includes a positive obligation, placed on Canada and Ontario, to see that the
    rights included in the
Charter
are provided for. In such
    circumstances, the question of whether there is an accompanying breach of
    fundamental justice would not arise. In this approach, the only issue would be
    whether the rights to life, liberty and security of the person are being
    breached. If they are, the state would be obliged to act. There is a broad
    array of cases which say that this is not so.

[54]

The
    motion judge understood the appellants to be making two assertions. The first
    was that the governments have positive obligations under s. 7. The second was
    that in order to succeed, the appellants need not prove a breach of a principle
    of fundamental justice. The appellants did make the first assertion, based on
    the Supreme Court of Canadas decision in
Gosselin v. Quebec (Attorney
    General)
, 2002 SCC 84, [2002] 4 S.C.R.
    429
, and based on the record they sought to put before a trial
    court. However, they did not make the second assertion, as can be seen clearly
    from para. 34 of the amended notice of application, quoted above.
[2]

[55]

Following
    a lengthy discussion of some case law which both preceded and followed
Gosselin
,
    the motion judge concluded that the governments have no positive obligation
    under s. 7 to sustain life, liberty or security of the person and therefore
    there can be no deprivation under the first step of the s. 7 analysis. He then
    discussed the appellants assertion that the majority judgment in
Gosselin
left open the possibility that, in appropriate circumstances in a future case,
    a court could recognize such an obligation, referring to the following
    significant passages from the majority decision at paras. 82 and 83:

[82]
One
    day s. 7 may be interpreted to include positive obligations
.  To evoke Lord Sankeys celebrated phrase in
Edwards
    v. Attorney-General for Canada
, [1930] A.C. 124 (P.C.), at
    p. 136, the
Canadian Charter
must be viewed as a
    living tree capable of growth and expansion within its natural limits: see
Reference
    re Provincial Electoral Boundaries (Sask.)
, [1991] 2 S.C.R.
    158, at p. 180,
per
McLachlin J. It would be a
    mistake to regard s. 7 as frozen, or its content as having been
    exhaustively defined in previous cases. In this connection, LeBel J.s words in
Blencoe
[
v.
    British Columbia (Human Rights Commission)
, 2000 SCC 44, [2000] 2 S.C.R. 307]
at
    para. 188 are apposite:

We must remember though that s. 7 expresses
    some of the basic values of the
Charter
. It is
    certainly true that we must avoid collapsing the contents of the
Charter
and perhaps of Canadian law into a flexible and complex provision like s.
    7. But its importance is such for the definition of substantive and procedural
    guarantees in Canadian law that it would be dangerous to freeze the development
    of this part of the law. The full impact of s. 7 will remain difficult to
    foresee and assess for a long while yet. Our Court should be alive to the need
    to safeguard a degree of flexibility in the interpretation and evolution of s.
    7 of the
Charter
.

The
    question therefore is not whether s. 7 has ever been  or will ever be
    recognized as creating positive rights. Rather, the question is whether the
    present circumstances warrant a novel application of s. 7 as the basis for
    a positive state obligation to guarantee adequate living standards.

[83] I conclude that they do not.  With due
    respect for the views of my colleague Arbour J.,
I do not believe that there is sufficient evidence
    in this case to support the proposed interpretation of s. 7.  I leave open
    the possibility that a positive obligation to sustain life, liberty, or
    security of the person may be made out in special circumstances.
However, this is not such a case.  The impugned program
    contained compensatory workfare provisions and the evidence of actual
    hardship is wanting.  The frail platform provided by the facts of this
    case cannot support the weight of a positive state obligation of citizen
    support. [Emphasis added.]

[56]

While
    recognizing that the majority in
Gosselin
did not foreclose the
    possibility that, in special circumstances in a future case, a court could
    find that s. 7 imposes positive obligations on government, the motion judge
    nevertheless concluded the opposite, at para. 59:

The law is established. As it presently stands, there can be no
    positive obligation on Canada and Ontario to act to put in place programs that
    are directed to overcoming concerns for the life, liberty and security of the
    person. In this context, there is no fundamental right to affordable, adequate
    and accessible housing provided through s. 7 of the
Charter
.

[57]

He
    also stated that the appellants had not pled any special circumstances, as
    the majority in
Gosselin
referred to. He then, at para. 67, addressed
    and distinguished each of the cases that the appellants or the interveners
    submitted did recognize positive obligations on the state to act to protect
    rights [the
Charter
] provides for.

[58]

For
    example, the motion judge quoted
Vriend v. Alberta
, [1998] 1 S.C.R. 493
, in which the
    Supreme Court stated at para. 64:

It has not yet been necessary to decide in other
    contexts whether the
Charter

might impose
    positive obligations on the legislatures or on Parliament such that a failure
    to legislate could be challenged under the
Charter
. Nonetheless, the possibility has been considered and left open in
    some cases.  For example, in
McKinney
[
v. University of Guelph
, [1990] 3 S.C.R. 229]
,
    Wilson J. made a comment in
obiter
that [i]t is
    not self‑evident to me that government could not be found to be in breach
    of the
Charter

for failing to act (p. 412).
     In
Haig v. Canada
, [1993] 2 S.C.R. 995, at p. 1038,
    LHeureux‑Dubé J., speaking for the majority and relying on comments made
    by Dickson C.J. in
Reference re Public Service Employee Relations
    Act (Alta.)
, [1987] 1 S.C.R. 313, suggested that in some
    situations, the
Charter
might impose affirmative
    duties on the government to take positive action.  Finally, in
Eldridge
    v. British Columbia (Attorney General)
, [1997] 3 S.C.R. 624,
    La Forest J., speaking for the Court, left open the question whether the
Charter
might oblige the state to take positive actions (at para. 73).
     However, it is neither necessary nor appropriate to consider that broad issue
    in this case.

[59]

The
    motion judge then responded, at para. 71:

Vriend
and each of the cases referred to [in the
    quotation from
Vriend
reproduced above]  pre-date
Gosselin.
Each
    of them did what it did. They acknowledged that it may be that special or
    unforeseen circumstances may cause the application of s. 15(1) or, by analogy,
    s. 7 of the
Charter

to evolve. That possibility does not change
    the law as it is. What is suggested here has been dealt with before. There is
    no positive obligation raised by the
Charter

that requires
    Canada and Ontario to provide for affordable, adequate, accessible housing.

[60]

The
    motion judge determined that other Supreme Court and appellate cases, including
Eldridge v. British Columbia (Attorney General)
, [1997] 3 S.C.R. 624,
Canada
    (Attorney General) v. PHS Community Services Society
, 2011 SCC 44, [2011] 3 S.C.R. 134,
and
Victoria
    (City) v. Adams
, 2009 BCCA 563, 313
    D.L.R. (4th) 29,
where the court considered how the
Charter
may include positive obligations to act, nevertheless have no application to
    this proceeding.

[61]

Finally,
    under his discussion of s. 7, the motion judge rejected the submission of the
    intervener, the David Asper Centre for Constitutional Rights, that the pleaded
Charter
remedies were available in this case, including the possible application of the
    courts supervisory jurisdiction, as discussed in
Doucet-Boudreau v. Nova
    Scotia (Minister of Education)
, 2003 SCC 62, [2003] 3 S.C.R. 3. He
    rejected that submission on the basis of his conclusion that the application
    necessarily requires a complex review of housing policy issues that the court
    is not equipped to supervise.

[62]

In
    my view, the motion judge erred by concluding that it is settled law that the
    government can have no positive obligation under s. 7 to address homelessness.
    To the contrary,
Gosselin
specifically leaves the issue of positive
    obligations under s. 7 open for another day.

[63]

Further,
    because a claim can only be struck where the law is clear that the claim cannot
    succeed, the court should not conduct a lengthy analysis of the case law as it
    does when making decisions after a trial, a summary judgment hearing, or an
    appeal, and then draw conclusions that state the law in a new way: see
Spasic
    Estate v. Imperial Tobacco Ltd
. (2000), 49 O.R. (3d) 699 (C.A.), leave to
    appeal refused, [2000] S.C.C.A. No. 547, at paras. 22-23.

[64]

However,
    in my view, the motion judges larger error was to strike the claim without
    allowing a court to review the evidentiary record assembled by the appellants.
    In
Gosselin
, the Supreme Court stated that a positive obligation on
    the part of government to sustain life, liberty or security of the person may
    be established in special circumstances. The motion judge stated that no
    special circumstances were pleaded or alleged.

[65]

Whether
    a party characterizes the circumstances as special is not determinative. What
    matters is whether the court considers them sufficiently special. That can be
    determined only after a consideration of the full record, as well as the
    response from the governments. For example, in
Gosselin
(see para. 83
    quoted above), the court stated that there was not enough evidence to support
    the proposed interpretation of s. 7.

[66]

In
    this case, the appellants assembled a 16-volume record, totalling nearly 10,000
    pages, which contains 19 affidavits, 13 of which were from experts. It is
    premature and not within the intent of
Gosselin
to decide there are no
    special circumstances in such a serious case, at the pleadings stage.

[67]

One
    of the concerns raised by the motion judge was that, if
Gosselin
is
    always read as leaving the door open for the imposition of positive obligations
    on governments under s. 7 in the future, then no case pleading positive
    obligations could ever be struck out at the pleadings stage. In my view, that
    concern is misplaced. There may well be cases where the facts pleaded raise an
    issue that has been clearly decided in another case, or where the facts as
    pleaded do not raise a
Charter
issue, although
Charter
relief
    is requested.

[68]

But
    this is not one of those cases. This application is a serious attempt made on
    behalf of a broad range of disadvantaged individuals and groups. It seeks to
    have the court address whether government action and inaction that results in
    homelessness and inadequate housing is subject to
Charter
scrutiny and
    justifies a
Charter
remedy. I will discuss this issue further at the
    conclusion of these reasons.

(4)

The appellants s. 15 claim should not be struck

[69]

The
    appellants s. 15 claim, while perhaps somewhat weaker than their s. 7
    claim, should not have been struck at this early stage either. Importantly, the
    values underlying s. 15 can inform the s. 7 analysis. In their amended notice
    of application, at para. 37, the appellants observe that those affected by
    homelessness and inadequate housing are often disproportionately members of
    other groups protected from discrimination under s. 15, such as women, persons
    with disabilities, Aboriginal persons, and seniors. In
New Brunswick
    (Minister of Health and Community Services) v. G.(J.)
, [1999] 3 S.C.R. 46,
    at para. 115, LHeureux-Dubé J. (with whom Gonthier and McLachlin JJ. agreed),
    concurring in the result, stated:

[I]n considering the s. 7 rights at issue, and the principles
    of fundamental justice that apply in this situation, it is important to ensure
    that the analysis takes into account the principles and purposes of the
    equality guarantee in promoting the equal benefit of the law and ensuring that
    the law responds to the needs of those disadvantaged individuals and groups
    whose protection is at the heart of s. 15. The rights in s. 7 must be
    interpreted through the lens of ss. 15 and 28, to recognize the importance of
    ensuring that our interpretation of the Constitution responds to the realities
    and needs of all members of society.

[70]

In
    his discussion of whether the claim under s. 15 should be struck as disclosing
    no reasonable cause of action, the motion judge again conducted a lengthy and
    detailed discussion of the merits of the claim, concluding in a number of
    places, that it is not the impugned government conduct that causes homelessness
    or the problems faced by the homeless. The motion judge stated at para. 107
    that the burden of being without adequate housing is not caused by these
    programs. It arises from other wider characteristics of our society and
    approach to economic issues.

[71]

This
    is the very issue that is intended to be addressed by an application judge on a
    full record, including the responses by the respondent governments. It is only
    based on such a record that reliable conclusions regarding causation can be
    drawn. With evidence, it may be that, even if the motion judges statement is
    partly true, the governments conduct is a contributing factor to the burden of
    being without adequate housing. It is not the role of a motion judge on a
    motion to strike to make factual findings that are not in the pleadings.

[72]

The
    fact that the motion judge found it necessary to make such factual findings in
    order to determine the motion further demonstrates that the motion to strike is
    ill-conceived. Such findings are appropriate only where a full record is placed
    before the court.

[73]

Finally,
    in the s. 15 context, the motion judge made a number of significant
    observations, the most important of which was that homelessness and being
    without adequate housing are not analogous grounds of discrimination under s.
    15 of the
Charter
. He stated that the lack of adequate housing is not
    a shared quality, characteristic or trait.

[74]

A
    court could very well decide this issue after considering the full evidentiary
    record and argument. It is an important issue. But it is not open for decision
    when the application is not allowed to proceed.

(5)

Justiciability

[75]

The
    motion judge also added that the issues raised in the application are not
    justiciable. It is for this reason that my colleague would dismiss the appeal.

[76]

I
    would not strike this application at the pleadings stage on the basis that the
    claims raised are not justiciable.

[77]

In
Boundaries of Judicial Review: The Law of Justiciability in Canada
, 2d
    ed. (Toronto: Carswell, 2012), at pp. 242-44, Dean Lorne Sossin addresses the
    justiciability issue in the context of disputes involving social and economic
    rights. Citing the Supreme Court of Canadas decision in
Irwin Toy Ltd. v.
    Quebec (Attorney General)
, [1989] 1 S.C.R. 927, he states at p. 242:

Canadian Courts have shown marked reluctance to invest rights
    and guarantees protected under the
Charter
with social and economic
    content. However, they have shown equal hesitation in foreclosing this
    possibility. The Supreme Court of Canada, for example, has expressly refrained
    from stating whether section 7 of the
Charter
, guaranteeing a right to
    security of the person, protects economic rights fundamental to human life or
    survival. [Footnote omitted.]

[78]

Dean
    Sossin outlines opposing views on whether, if claims for social and economic
    rights under the
Charter
were justiciable, courts would be deciding
    political or policy matters that should be left to the legislature. In
    response, he points out that courts may be accused of doing that very thing
    when they conduct the required analysis under s. 1 of the
Charter
.

[79]

He
    then concludes that the justiciability of social and economic rights under the
Charter
is an open question:

It is striking that, despite the rich jurisprudence which has
    developed under the
Charter
, such uncertainty remains with respect to
    a question of fundamental importance to the scope of judicial review of government
    action. For the moment, the justiciability of social and economic rights under
    the
Charter
remains an open question. [Footnote omitted.]

[80]

In
    his chapter Taking Competence Seriously in Margot Young et al., eds.,
Poverty:
    Rights, Social Citizenship, and Legal Activism
(Vancouver: UBC Press,
    2007), at p. 273, Professor David Wiseman argues that courts are competent to
    adjudicate poverty-related standards, and points to a number of cases outside
    the
Charter
context where courts have been prepared to do just that.
[3]
He also refers to the dissenting reasons of Arbour J. and LHeureux-Dubé J. in
Gosselin
,
    at paras. 141-42 and paras. 330-35, where they acknowledged that, while the
    court may not be able to determine the level of assistance that government
    should provide, that does not mean it cannot determine whether there is a
    constitutional obligation on government to provide some level of assistance.

[81]

In
Gosselin
, the Supreme Court did not hold that claims for social and
    economic rights under the
Charter
were non-justiciable. As a result,
    courts should be extremely cautious before foreclosing any enforcement of these
    rights.

In my view, to strike a serious
Charter
application
    at the pleadings stage on the basis of justiciability is therefore
    inappropriate.

[82]

My
    colleague points to a number of concerns with the format of this application:
    in particular, unlike in many other
Charter
cases, the appellants have
    attacked no particular law. Therefore, there is no direct way to apply the s. 1
    analysis from
R. v. Oakes
, [1986] 1 S.C.R. 103.

[83]

I
    agree that the broad approach taken in this application is novel and a number
    of procedural as well as conceptual difficulties could arise when the court
    addresses whether the
Charter
has been infringed, and if appropriate,
    determines and applies a reasonable and workable remedy.

[84]

However,
    there are two answers to these concerns. First, as Wilson J. observed in
Hunt
,
    at p. 980, and McLachlin C.J. observed in
Imperial Tobacco
, at para.
    21, the novelty of a claim is not a bar to allowing it to proceed. Although the
    development of
Charter
jurisprudence has to date followed a fairly
    consistent procedural path, and has involved challenges to particular laws, we
    are still in the early stages of that development. There is no reason to
    believe that that procedural approach is fixed in stone. This application asks
    the court to view
Charter
claims through a different procedural lens.
    That novelty is not a reason to strike it out.

[85]

Second,
    this court had cogent and helpful submissions from the intervener, the David
    Asper Center for Constitutional Rights, on the ability and authority of the
    court to grant one or more of the remedies requested in the application.
    Although the amended notice of application seeks, as one remedy, an order
    requiring the governments to implement strategies to reduce homelessness and
    inadequate housing and to consult with affected groups, under court
    supervision, the court need not make such a wide-ranging order if it finds a
    breach of the
Charter
. It may limit itself to granting declaratory
    relief only, as was done in
Canada (Prime Minister) v. Khadr
, 2010 SCC
    3, [2010] 1 S.C.R. 44. Four such declarations are requested in the amended
    notice of application.

Conclusion

[86]

In
    my view, it was an error of law to strike this claim at the pleadings stage.
    The claim does not meet the test under rule 21.01(1)(b): while the claim is
    novel, both conceptually and substantively, it cannot be said, based on the
    state of the relevant jurisprudence to date, that the claim has no reasonable
    prospect of success. In
Gosselin
, the Supreme Court of Canada left
    open the issue of both the existence and the extent of positive obligations
    under the
Charter
to give effect to social and economic rights. It is
    therefore premature to decide at the pleadings stage that the issues are not
    justiciable.

[87]

Chief
    Justice McLachlin described the purpose of motions to strike as follows in
Imperial
    Tobacco
, at para. 19:

The power to strike out claims that have no reasonable prospect
    of success is a valuable housekeeping measure essential to effective and fair
    litigation. It unclutters the proceedings, weeding out the hopeless claims and
    ensuring that those that have some chance of success go on to trial.

[88]

This
    application is simply not the type of hopeless claim for which Rule 21 was
    intended. It has been brought by counsel on behalf of a large, marginalized,
    vulnerable and disadvantaged group who face profound barriers to access to
    justice. It raises issues that are basic to their life and well-being. It is
    supported by a number of credible intervening institutions with considerable
    expertise in
Charter
jurisprudence and analysis. The appellants put
    together a significant record to support their application. That record should
    be put before the court.

[89]

I
    would allow the appeal.

Released: (KF) DEC 1, 2014

K.
    Feldman J.A.

[1]

Withler v. Canada
(Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396,
    at para. 35.

[2]
Later on in his reasons, at para. 62, the motion judge recognized that the
    appellants had pleaded a breach of the principles of fundamental justice.

[3]
For example, in
Marshall v. Canada
, [1999] 3 S.C.R. 456, at
    paras. 58-59, the Supreme Court interpreted a treaty as providing the right to
    trade for necessaries or a moderate livelihood, which includes such basics
    as food, clothing and housing, supplemented by a few amenities, but not the
    accumulation of wealth. It addresses day-to-day needs (citation omitted). In
Stouffville
    Assessment Commissioner v. Mennonite Home Assn
., [1973] S.C.R. 189, the
    Supreme Court applied a statute that extended a benefit to an incorporated
    charitable institution organized for the relief of the poor, and in so doing,
    considered what constitutes relief of the poor. See
Assessment Act
,
    R.S.O. 1990, c. A.31, s. 3(1)(12)(iii). See also
Criminal Code
, R.S.C.
    1985, c. C-46, s. 215, which creates the offence of failing to provide the
    necessaries of life. In applying this section, courts have to decide what
    constitutes the necessaries of life. See Young, at p. 273.


COURT OF APPEAL FOR ONTARIO

CITATION: Tarion
    Warranty Corporation v. Latreille, 2014 ONCA 904

DATE: 20141216

DOCKET: C59041

Cronk, Juriansz and Epstein JJ.A.

BETWEEN

Tarion Warranty Corporation

Plaintiff/Defendant by Counterclaim

(Respondent)

and

François Yvon Latreille and Samia Benmiloud

Defendants/Plaintiffs by Counterclaim

(Appellants)

Douglas R. Adams, for the appellants

Neil Abbott, for the respondent

Heard and released orally: December 10, 2014

On appeal from the order of Justice David G. Stinson of
    the Superior Court of Justice, dated June 9, 2014.

ENDORSEMENT

[1]

The only question on this appeal is whether the motion judge erred by concluding
    that a condominium corporation is a homeowner for the purpose of the warranty
    provisions of the
Ontario New Home Warranties Plan Act
, R.S.O. 1990, c. O. 31 (the Act)
. On
    the basis of that conclusion, the motion judge declared that the appellant, Mr.
    Latreille, as indemnifier for the builder Domaines, is personally liable for any
    deficiency in the monies paid out of the guarantee fund under the Act in
    respect of the warranty claims processed by the respondent Tarion Warranty
    Corporation for the common elements at Ottawa Carleton Standard Condominium Corporation
    No. 737.

[2]

The appellant relies on the definitions of home and owner in s. 1 of
    the Act. These definitions, he argues, do not apply to a condominium
    corporation and consequently a condominium corporation is not entitled to receive
    payment out of the guarantee fund.

[3]

The difficulty with the appellants argument is that s. 15(a) of the Act
    provides that for the purposes of ss. 13 and 14, a condominium corporation
    shall be deemed to be the owner of the common elements of the corporation.

[4]

The appellant says that s. 15(a) does not deem a condominium to be an
    owner of a home and therefore does not apply. The appellant, however, cannot
    offer any meaning for s. 15(a). He says the provision is befuddling and this
    court should regard it as nonsense.

[5]

We do not agree. In our view, the legislation is clear. It is a fundamental
    principle of statutory interpretation that all of a statutes provisions be
    read together and that each be given meaning. It is evident that the legislature,
    in enacting s. 15 of the Act, intended to make the warranties under the Act
    available to a condominium corporation in respect of the common elements.
    Section 15(a) is a full answer to the grounds raised in the appeal.

[6]

The appeal is dismissed

[7]

The respondent is entitled to its costs of the appeal, fixed in the
    total amount of $6,500, inclusive of disbursement and all applicable taxes.

E.A.
    Cronk J.A.

R.G.
    Juriansz J.A.

Gloria
    Epstein J.A.


COURT OF APPEAL FOR
    ONTARIO

CITATION: Teitel v. Ontario (Attorney General), 2014 ONCA 893

DATE: 20141224

DOCKET: C58778

Sharpe, van Rensburg and Pardu JJ.A.

IN THE MATTER of a complaint

Made on October 22, 2014 by Murray Teitel

against Case Management Master Ronald Dash

AND IN THE MATTER of the dismissal of that complaint

on January 15, 2014 by Chief Justice Heather Smith

BETWEEN

Murray Teitel

Appellant

and

Attorney General of Ontario and Master Ronald
    Dash

Respondents

Murray Teitel, in person

Darrell Kloeze, for the Attorney General of Ontario

Melvyn Solmon and Eric Borzi, for Master Ronald Dash

Heard: December 16, 2014

On appeal from the decision of Chief Justice Heather
    Smith of the Superior Court of Justice, dated January 15, 2014.

ENDORSEMENT

[1]

This is an appeal, with leave, from the decision of the Chief Justice of
    the Superior Court dismissing a complaint lodged against a Case Management
    Master (the Master).

[2]

The
Courts of Justice Act
, s. 86.2, sets out the procedure to be
    followed. Any person may make a complaint in writing to the Chief Justice
    alleging misconduct (s. 86.2(1)). The Chief Justice may dismiss the complaint
    pursuant to s. 86.2(2) which provides:

The Chief Justice shall review the complaint and may dismiss it
    without further investigation if, in his or her opinion, it is frivolous or an
    abuse of process, or concerns a minor matter to which an appropriate response
    has already been given.

[3]

If the Chief Justice does not dismiss the complaint, she is directed to
    refer it to a committee of three, comprised of a judge of the Superior Court, a
    case management master and a lay member (s. 86.2(5)). The mandate of that committee
    is set out in s. 86.2(6):

The committee shall investigate the complaint in the manner it
    considers appropriate, and the complainant and the case management master shall
    be given an opportunity to make representations to the committee, in writing
    or, at the committees option, orally.

[4]

The committee makes a report and recommendation to the Chief Justice who
    may dismiss the complaint, or if she finds that there are grounds, impose a
    sanction from a range of options from reprimand to removal from office (s.
    86.2(8)). The decision of the Chief Justice may be appealed to this court by
    the Master or, with leave, by the complainant (s. 86.2(9.1)).

[5]

The appellant, a lawyer, made a complaint that the Master had acted with
    a lack of integrity and impartiality in relation to a costs decision in an
    attempt to cover up mistakes the Master had made. Of particular concern to the
    appellant, were statements made by the Master suggesting that the appellant had
    behaved in an unprofessional manner.

[6]

The Chief Justice gave detailed written reasons for dismissing the
    complaint. In particular, the Chief Justice noted that the appellant had sought
    and obtained leave to appeal from the Masters decision and that one of the
    reasons for granting leave was the issue of whether it was open to the case
    management master to comment on the professional conduct of the appellant. In
    her reasons, she noted that she had given the Master a copy of the complaint
    and asked for his comments.

[7]

The appellant submits that the Chief Justice failed to give adequate
    reasons for dismissing the complaint. He also contends that the Chief Justice
    exceeded her jurisdiction by conducting an investigation by asking the Master
    for an explanation.  The appellant submits that the statutory scheme precludes
    the Chief Justice from considering anything but the complaint, and requires her
    to refer the complaint requiring investigation to a committee pursuant to
    section 86.2(4), if anything other than the complaint needs to be considered.
    The appellant further contends that he was denied procedural fairness, as the
    Chief Justice failed to disclose to him the Masters response and give him an
    opportunity to respond. Finally, the appellant contends that the Chief Justice
    misconstrued the evidence in rejecting his contention that the case management
    master had attempted to cover his own error by alleging professional misconduct
    against the appellant.

[8]

We see no merit in this appeal.

[9]

The Chief Justice gave careful and comprehensive reasons which clearly
    explain why she dismissed this complaint. Although the Chief Justice did not
    use the precise words of the legislation, in our view it is unmistakable that
    she found that the complaint concerned a minor matter to which an appropriate
    response has already been given. The appellant had obtained and sought leave
    to appeal from the decision which he complained about and, as the Chief Justice
    explained in her reasons, his concerns about the Masters findings of
    unprofessional conduct could be fully aired on appeal.

[10]

We
    do not agree that the Chief Justice erred or exceeded her jurisdiction by
    asking the Master for his comments on the complaint. Section 86.2(2) permits
    the Chief Justice to dismiss the complaint without further investigation. We
    do not agree that permission to dismiss without investigation means that the
    Chief Justice is precluded from asking the subject of the complaint to
    comment:  see
McDonald v. Ontario
, (1999), 118 O.A.R. 1410, leave to
    appeal dismissed 1999 S.C.C.A. No. 309.  Nor do we accept the submission that
    the Chief Justice was required to provide the appellant with an opportunity to
    comment on the Masters response.

[11]

In
    our view, s. 86.2(2) gives the Chief Justice clear authority to dispose of
    groundless complaints in a summary manner without directing the complaint to a committee
    for further investigation. The powers conferred by s. 86.2(2) must be read in
    the light of the important role the Chief Justice plays in fostering the
    integrity and independence of her court, and the privilege attaching to
    judicial deliberations. It is entirely consistent with her role and the
    maintenance of that privilege, that the Chief Justice should be able to ask a
    judicial officer to comment on a complaint without requiring her to divulge the
    response to the complainant or triggering a full inquiry.

[12]

We
    reject the submission that the Chief Justice misconstrued or misapprehended the
    evidence. Her reasons for dismissing the complaint and for finding that a
    reasonably informed person would not be able to conclude an intention on the
    part of [the Master] to blame [the appellant] for a mistake made by [the
    Master] are fully supported by the record. We reject the appellants
    contention that there is anything in this record suggesting or indicating
    misconduct, or that the Master improperly misstated facts to cover up an error
    he had made.

[13]

Accordingly,
    the appeal is dismissed. The Master is entitled to an order that he be
    compensated for his costs pursuant to s. 86.2(12.2) in the amount of $15,000.

Released: R.J.S. December 24, 2014

Robert J. Sharpe J.A.

K. van Rensburg J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Viscomi, 2014 ONCA 879

DATE: 20141205

DOCKET: M44414 (C57211)

Laskin J.A. (In Chambers)

IN THE MATTER OF an appeal of a committal order pursuant to
    s. 49 of the
Extradition Act
, S.C. 1999, c. 18

AND IN THE MATTER OF an application for judicial review
    pursuant to s. 57 of the
Extradition Act
, S.C. 1999, c. 18

BETWEEN

The Attorney General of Canada (on behalf of the
    United States of America)

Respondent

and

Marco Viscomi

Applicant

Edward Greenspan and Brad Greenshields, for the
    applicant

Richard Kramer, for the respondent

Heard: November 13, 2014

On application for judicial interim release pending the appeal
    from the committal order of Justice Kenneth L. Campbell of the Superior Court
    of Justice, dated May 24, 2013, with reasons reported at 2013 ONSC 2829, 115
    O.R. (3d) 606, and the application for judicial review of the surrender order
    of the Minister of Justice, dated October 17, 2013.

Laskin J.A.:

[1]

Marco Viscomi applies for bail pending his appeal of the order
    committing him for extradition to the United States, and his application for
    judicial review of the Ministers surrender order. The Attorney General of
    Canada opposes the application for bail.

A.

Background

[2]

The United States has alleged that Viscomi, using manipulation,
    extortion and threats of violence, coerced two sisters, aged 13 and 17 and
    living in Virginia, into performing sadistic sexual acts with each other in
    front of a webcam while he watched and captured images on his computer for his
    pleasure. The webcam session took place over Skype
[1]
in the middle of the night of January 5-6, 2012, and lasted about an hour and
    ten minutes.

[3]

Viscomi was arrested under the
Extradition Act
on August 9,
    2012. He applied for bail pending his committal hearing. On August 16, Benotto
    J. denied bail. Although she recognized that Viscomi had the loving and devoted
    support of his parents, she concluded that there was a substantial likelihood
    he would reoffend and that the protection of the public required his detention.
    Viscomi has been in custody continuously since Benotto J.s order.

[4]

The dates of the committal and surrender orders are as follows:

·

May 24, 2013: K.L. Campbell J. orders Viscomis committal for
    extradition.

·

October 17, 2013: The Minister orders Viscomis surrender.

·

November 12, 2014: The Minister refuses to reconsider his
    surrender order.

[5]

In the United States, Viscomi will face charges relating to child
    pornography and child luring, and, if convicted, mandatory sentences of up to
    30 years in jail.

[6]

The appeal and judicial review materials are all available. Thus the
    hearing before this court can and should be held no later than early spring
    2015.

B.

The Application

[7]

This application is brought under s. 20 of the
Extradition Act
.
    Section 20 states that the bail pending appeal provision of s. 679 of the
Criminal
    Code
, with any modifications the circumstances may require, applies to judicial
    interim release pending appeal of a committal order and judicial review of a
    surrender order. Viscomi must therefore satisfy three criteria. He must show:

·

His appeal is not frivolous;

·

He is not a flight risk; and

·

His detention is not necessary in the public interest.

[8]

The main criterion that is modified in the extradition context is the
    public interest criterion.

[9]

Viscomi submits that he has met all three criteria for bail and should
    be released on the stringent release plan put before me. The Attorney General
    of Canada submits that Viscomi has met none of the criteria.

[10]

In
    considering this application, I accept two preliminary points Viscomis counsel
    made. One, this is a new bail hearing under s. 20 of the
Extradition Act
.
    Thus, the order of Benotto J., made under s. 18(1)(b), is not entitled to any
    deference. Two, whether entitled to or not, I do not rely on the evidence of Daryl
    Hawke, a civilian member of the Ontario Provincial Police. Hawke testified at
    the bail hearing before Benotto J. and described his examination of the
    computer equipment seized following Viscomis arrest on Canadian charges.
[2]

[11]

On
    this application, for reasons I will elaborate on, I conclude:

·

Viscomi has not raised any arguable ground of appeal from his
    committal order;

·

Viscomi is not a flight risk; and

·

The public interest, standing alone, does not require Viscomis
    detention.

[12]

Because
    I have found no arguable ground of appeal, I dismiss Viscomis application for
    bail. I do so without prejudice to its renewal, should he be able to put
    forward an arguable ground of appeal or judicial review.

(a)

No arguable ground of
    appeal

[13]

An
    appeal is not frivolous if it raises an arguable issue or ground of appeal. This
    is a low bar. Nonetheless, on the material before me, I am not persuaded that
    Viscomi has met this criterion.

[14]

He
    has put forward two main grounds of appeal challenging the correctness of the
    committal order (he has not put forward any submissions on the Ministers
    surrender order). First, the extradition judge erred in ordering Viscomis
    committal because the evidence was not reasonably capable of supporting a
    finding of guilt. Second, the police obtained Viscomis subscriber information
    from his internet service provider without a warrant, and in the light of the
    Supreme Court of Canadas decision in
R. v. Spencer
[3]
 decided after these committal proceedings  this likely constitutes a breach
    of s. 8 of the
Canadian Charter of Rights and Freedoms
. And arguably,
    the evidence the police obtained from the internet service provider will be
    excluded under s. 24(2) of the
Charter
. I reject both grounds.

(i)

The evidence on the committal order was sufficient

[15]

This
    ground of appeal comes down to two questions: Did the extradition judge apply
    the right test? And, if so, was there evidence to support his committal order?
    I answer yes to both questions.

[16]

The
    extradition judge considered the Supreme Court of Canadas decisions in
United
    States of America v. Ferras
,
[4]

R. v. Arcuri
[5]
and
R. v. Sazant
,
[6]
which respectively set out the general test for committal, the test to be
    applied when there is, as in this case, circumstantial evidence, and the
    impropriety of weighing competing inferences at the committal stage. The
    extradition judge expressly applied the decision of this court in
United
    States of America v. Leonard
,
[7]
where, at para. 31, Sharpe J.A. set out the appropriate test:

The extradition judge applied the correct test for committal:
    was there available and reliable evidence upon which a reasonable jury,
    properly instructed, could convict a sought person for the corresponding
    Canadian offence listed in the Authorization to Proceed. Where, as in this
    case, the evidence is circumstantial in nature, an extradition judge must weigh
    the evidence, in the sense of assessing whether it is reasonably capable of
    supporting the inferences the trier of fact will be asked to make. If the
    inferences required are within the field of inferences available on the whole
    of the evidence, nothing else matters. [Citations omitted.]

[17]

Applying
    this test, the extradition judge concluded, at para. 17, that the evidence in
    the certified record of the case permits the reasonable inference to be drawn
    that the respondent was the perpetrator of the offence.

[18]

Viscomi
    accepts that a crime was committed. But he contends that the evidence
    identifying him as the perpetrator is insufficient to justify his committal to
    stand trial in the United States. I do not accept that his contention is even
    arguable.

[19]

The
    proposed evidence in the Record of the Case supporting the trial judges
    conclusion is as follows:

·

The Virginia Beach Police Department has the chat session log and
    the computer belonging to one of the teenaged sisters. These items show that
    the individual communicating with the two sisters during the time of the
    alleged offence had a Skype screen name of Jamie Paisley and the account name
    jimbos939393.

·

The offences are alleged to have been committed on January 5-6,
    2012.

·

Skype records show that the IP address associated with the screen
    name Jamie Paisley and the account name jimbos939393 for the period December
    28, 2011, to January 20, 2012, was 24.138.105.47.

·

Zing Networks, a residential internet service provider in
    Ontario, maintained the IP address 24.138.105.47 in December 2011 and January
    2012

·

The subscriber assigned to IP address 24.138.105.47 between
    December 6, 2011, and January 20, 2012, was Marco Viscomi, of a specific
    residential address in Ontario.

·

Viscomis Ontario drivers licence shows the same residential
    address as that associated with the IP address.

[20]

On
    this evidence, all of which was reliable and admissible, one can reasonably
    draw the inference that Viscomi was the perpetrator of the offences. As the
    extradition judge acknowledged, it is possible someone else had access to this
    IP address and could have committed the offences.
[8]
But the task of the extradition judge is not to weigh competing inferences. The
    extradition judges task is simply to determine whether one reasonable
    inference is that the accused committed the offence. The extradition judge in
    this case determined that from the evidence in the Record of the Case, it was
    reasonable to draw the inference that Viscomi committed these offences. Although
    Viscomi argued that independent confirmatory evidence was required, I do not
    think it was to draw the inference that he was the perpetrator.

(ii)

The subscriber information the police seized would be admissible under
    s. 24(2) of the
Charter

[21]

Zing
    received a police request for the name and address of the account holder
    associated with the IP address 24.138.105.47, used between December 6, 2011,
    and January 20, 2012. Under Zings wireless service internet agreement signed
    by all of its customers, Zings customers agree not to disseminate content that
    is unlawful, threatening, or abusive, or that constitutes a criminal offence.
    Zings customers also agree Zing has the right to disclose any information
    needed to satisfy any government request. In accordance with its agreement,
    Zing voluntarily disclosed to the police the name and residential address of
    the subscriber assigned to IP address 24.138.105.47 at the relevant time. The
    decision of this court in
R. v. Ward
,
[9]
the prevailing authority at the time, allowed police to obtain this information
    from Zing without a warrant.

[22]

This
    year, however, in
Spencer
, the Supreme Court of Canada decided that
    when police obtain subscriber information from an internet service provider,
    they are conducting a search. And if they do so without a warrant, then absent
    exigent circumstances, the search amounts to a breach of s. 8 of the
Charter
.

[23]

For
    the purpose of this application I accept that Viscomi can rely on
Spencer
.
    I therefore accept that when the police obtained from Zing the name and
    residential address of the subscriber with the IP address 24.138.105.47, they
    breached Viscomis s. 8
Charter
rights. However, that breach does not
    justify granting bail because it must be considered in conjunction with s.
    24(2) of the
Charter
. And, as in
Spencer
, I cannot see any
    basis for the exclusion under s. 24(2) of the subscriber information the police
    obtained. As in
Spencer
:

·

The police were acting in good faith under the law in effect at
    the time, which said that police requests of this kind did not require a
    warrant.

·

The police conduct would not tend to bring the administration of
    justice into disrepute.

·

Although the impact on Viscomis
Charter
-protected
    rights was serious, the offences too are serious.

·

The evidence is reliable and, without it, the prosecution will
    have no case.

[24]

Viscomi
    argues, however, that the s. 24(2) analysis in this case differs from that in
Spencer
because the unconstitutionally obtained subscriber information led to
Criminal
    Code
search warrants, which were used to seize computers and hard drives
    that were then improperly sent to the United States under the M
utual Legal Assistance
    in Criminal Matters Act
[10]

(
MLACMA
). Viscomi has challenged these
MLACMA
proceedings, unsuccessfully to date. Even if his challenge has merit, however,
    it has no bearing on the committal proceedings because the fruits of the search
    (the computers and hard drives) were not incorporated into the Record of the Case.
    On the basis of this courts decision in
United States of America. v.
    McAmmond
,
[11]
the proceedings under
MLACMA
are irrelevant.

[25]

For
    these reasons I see no arguable ground of appeal from the committal order.

(b)

Viscomi is not a
    flight risk

[26]

Although
    suggesting Viscomi was a flight risk, the Attorney General of Canada did not
    press this point. I do not consider Viscomi to be a flight risk. He has no
    criminal record and no history of flight. The police seized his passport during
    the execution of the
Criminal Code
search warrants. Although Viscomi
    is pursuing medical studies in Australia, these studies have been put on hold
    pending the disposition of the extradition proceedings. His proposed release
    plan stipulates that he will remain in Ontario and not apply for a passport or
    other travel documents. Thus, Viscomi has met this criterion.

(c)

The public interest alone does not
    justify Viscomis continued detention

[27]

Two
    chambers decisions of this court bear on the public interest criterion in
    extradition proceedings: the decision of Simmons J.A. in
Canada (Attorney
    General) v. Raghoonanan
[12]

and the decision of Doherty J.A. in
France v. Ouzghar
.
[13]

[28]

In
Raghoonanan
, Simmons J.A. noted, at paras. 34-35, that the public
    interest in detaining an applicant is less compelling in the case of an appeal
    of a committal order under the
Extradition Act
than in the case of an
    appeal from a conviction under the
Criminal Code
. In the extradition
    context, the applicant has not been convicted of anything and is presumed
    innocent. In the
Criminal Code
context, the applicant has been
    convicted and the court must balance the reviewability and enforcement of the
    conviction.

[29]

In
Ouzghar
, Doherty J.A. said that in extradition proceedings, the only
    reason Canada has any cause to place an applicant in custody is to facilitate
    the applicants surrender to a foreign country. That surrender, of course, will
    not occur at least until this court has disposed of the applicants appeal and
    judicial review application. Thus to quote Doherty J.A., at para. 12:

Absent some substantive cause specific to the applicant to
    justify detention, the public interest considered in the context of an
    extradition proceeding is not served by incarceration that does not facilitate
    the applicants surrender to the requesting country.

[30]

Here,
    the substantive public interest concerns the Attorney General of Canada puts
    forward to justify Viscomis continued detention are the public perception of
    the reputation of the administration of justice and the likelihood Viscomi will
    reoffend. In my view, Viscomis proposed release plan adequately addresses these
    concerns.

[31]

The
    proposed release plan is very restrictive. It amounts to house arrest (save for
    five hours per week), under which Viscomis parents would maintain custody over
    their cell phones and laptops, change the passwords on them daily and lock them
    up at night. The plan provides Viscomi is not to use, possess or access any device
    that can connect to the internet. Wireless internet would be disabled. Under
    the plan, Viscomi would effectively have no way to access the internet and thus
    reoffend inside his parents home.

[32]

In
    addition, he would likely be prevented from reoffending outside the home. Under
    the proposed release plan, Viscomi would be subject to electronic monitoring,
    which would restrict his ability to leave his parents home. In practical terms,
    electronic monitoring should prevent him from going, for example, to an
    internet café, and reoffending.

[33]

I
    acknowledge that the release plan, though very restrictive, is not foolproof.
    Viscomis parents have jobs, which would leave Viscomi alone and unsupervised
    in the home for more than 20 hours per week. Moreover, an employee of the
    proposed electronic monitoring company, Jemtec Inc., swore an affidavit in
    which he acknowledged as follows:

I am aware that Jemtec does not believe that any electronic
    monitoring system can:

·

prevent the Participant from committing crime; or

·

physically restrict the Participants movement.

[34]

In
    the light of the diminished public interest in detention in the extradition
    context, and the restrictive bail plan, I do not think that by itself the
    public interest would justify Viscomis continued detention pending his appeal
    and application for judicial review.

C.

Conclusion

[35]

I
    have not been persuaded that Viscomi has raised an arguable ground of appeal
    from his committal order. For this reason alone, I would dismiss his
    application for bail. He shall have until January 9, 2015, to perfect his
    appeal and application for judicial review. They should then be scheduled for
    an early hearing in 2015.

Released: December 5, 2014 (J.L.)

John Laskin J.A.

[1]
Skype is software that allows users to chat with each other via text, audio and
    video.

[2]
Viscomi was arrested on Canadian charges in March 2012. The Attorney General of
    Ontario has withdrawn these charges in the light of the extradition
    proceedings.

[3]
2014 SCC 43, 375 D.L.R. (4th) 255.

[4]
2006 SCC 33, [2006] 2 S.C.R. 77.

[5]
2001 SCC 54, [2001] 2 S.C.R. 828.

[6]
2004 SCC 77, [2004] 3 S.C.R. 635.

[7]
2012 ONCA 622, 112 O.R. (3d) 496, leave to appeal to S.C.C. refused, [2012]
    S.C.C.A. No. 490.

[8]
An IP address is an identifying number that an internet service provider
    assigns to a subscriber when the subscribers device connects to the internet.
    Internet service providers keep track of the dates and times that IP addresses
    are assigned to their subscribers. They can thus determine when a subscribers
    account was used to access the internet at any given time. But, as Doherty J.A.
    notes in
R. v. Ward
, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 23,
    this is not conclusive proof that the subscriber accessed the internet:

However
    that does not necessarily mean that the subscriber himself or herself was using
    the computer connected to the Internet at that time, or that it was even the
    subscriber's computer that was connected to the Internet. A wired or wireless
    network may link multiple computers to a central device referred to as a shared
    access point. When more than one computer is accessing the Internet through a
    shared access point at the same time, there are additional technical issues
    that may arise.

[9]
2012 ONCA 660, 112 O.R. (3d) 321.

[10]
R.S.C. 1985, c. 30 (4th Supp.).

[11]
(2005), 192 C.C.C. (3d) 149.

[12]
(2003), 63 O.R. (3d) 465.

[13]
2009 ONCA 137, 95 O.R. (3d) 187.


COURT OF APPEAL FOR ONTARIO

CITATION: Vincorp Financial Ltd. v. Oxford (County), 2014
    ONCA 876

DATE: 20141208

DOCKET: C58816 and C58851

Rouleau, van Rensburg and Pardu JJ.A.

BETWEEN

DOCKET: C58816

Vincorp Financial Ltd.

Appellant

and

The
    Corporation of the County of Oxford and

The
    Corporation of the City of Woodstock

Respondents

AND BETWEEN

DOCKET: C58851

Blandford Square Developments Limited

Appellant

and

The
    Corporation of the County of Oxford and

The
    Corporation of the City of Woodstock

Respondents

Clifford Cole and Nicholas Kluge, for the appellants
    Vincorp Financial Ltd. and Blandford Square Developments Limited

Steven Stieber and Murray Stieber, for the respondents

Heard: November 17, 2014

On appeal from the judgment of Justice C. Horkins of the
    Superior Court of Justice dated April 30, 2014.

ENDORSEMENT

[1]

The appellants submit that the trial judge erred in answering questions
    put to her that had the effect of dismissing their claim for damages resulting
    from the expropriation of their land (the mall lands), and the subsequent
    transfer of such lands to Toyota to facilitate its development of an auto plant
    in the County of Oxford.

[2]

The matter proceeded on the basis of an Agreed Statement of Facts and
    Chronology and a series of uncontested documents. There were three questions
    before the trial judge:

Question 1: Could Oxford lawfully expropriate
    the mall lands for the purposes set out in Oxford By-law No. 4545-2005,
    including in order to transfer the mall lands to Toyota for the proposed
    development of the Toyota Plant?

Question 2: Did the expropriation and later
    sale of the mall lands by Oxford, or any step in that transaction or series of
    transactions, confer a bonus on Toyota contrary to the provisions of s.
    106(1) of the
Municipal Act
?

Question 3: If a bonus was conferred and/or if
    the expropriation of the mall lands was unlawful, are the plaintiffs entitled
    to a remedy in damages against Oxford?

[3]

The trial judge answered questions 1 and 2 in the affirmative and found
    it unnecessary to answer the third question.

[4]

The appellants argue before this court that:

1.    Oxford gave Toyota a bonus in
    violation of s. 106 of the
Municipal Act, 2001
, S.O. 2001 c. 25,
by transferring the mall
    lands to Toyota at the fair value as defined by the
Expropriations Act
,
    R.S.O. 1990, c. E.26, which did not reflect any increase in value attributable
    to the proposed development.

2.    The expropriation of the mall
    lands was illegal, because it was tainted by the concurrent agreement to sell
    the lands at the expropriation value.

3.    Oxford is liable in trespass for
    damages for the differential, in addition to the payment for the market value
    as defined by the
Expropriations Act
, which the expropriation process
    will provide to them.

[5]

With respect to the value of the mall lands, while there was no evidence
    establishing the fair market value of such lands at the time of their
    transfer to Toyota by the Municipality, the parties agreed that if the
    development of the Toyota plant is taken into account in determining the fair
    market value of the mall lands, the fair market value would exceed the fair
    market value of the mall lands without taking into account the proposed
    development.

[6]

Sections 106(1) and 106(2)(c) of the
Municipal Act
provide:

106(1) Despite any Act, a municipality shall not
    assist directly or indirectly any manufacturing business or other industrial or
    commercial enterprise through the granting of bonuses for that purpose.

(2) Without limiting subsection (1), the municipality
    shall not grant assistance by

(c)  selling any property of the municipality at
    below fair market value;

[7]

The appellants assert that the trial judge erred in viewing the
    expropriation of the mall lands by the respondent as constituting one
    transaction and the sale to Toyota at the expropriation price as a separate
    transaction. In the appellants submission, the two transactions should be
    viewed together as one single transaction. It would follow, according to the
    appellant, that a violation of s. 106 as part of that transaction would operate
    to invalidate the expropriation of the appellants lands
ab initio.

[8]

There are a number of problems with this argument. First, although the
    expropriation decision may well have been motivated by the desire to acquire
    the mall lands for their transfer to Toyota, the expropriation and the rights
    of the appellants to receive compensation for their lands are governed by a
    specific statutory regime, under which the appellants have a statutory right to
    receive fair value.

[9]

The
Expropriations Act
provides that in calculating the fair
    value to be paid in compensation to an owner, no account shall be taken of any
    increase or decrease in the value of the land resulting from the development or
    the imminence of the development in respect of which the expropriation is
    made.: s. 14(4)(b). The claim by the appellants that they are entitled to
    damages in an amount that reflects an increase in value attributable to the
    proposed development cannot be reconciled with the provisions of the
Expropriations
    Act
limiting the compensation payable.

[10]

The
    trial judge rejected the submission that the expropriation and the subsequent
    sale to Toyota constituted one transaction. She found that they constituted two
    separate transactions and that they must be considered individually. As found
    by the trial judge this is consistent with the legislative scheme that governs
    expropriation and provides for the expropriated party to be compensated.

[11]

It
    was conceded on appeal that the expropriation proceeded on the basis that there
    was a proper municipal purpose for the expropriation. That purpose was to
    promote economic development in the area. It was also conceded that a
    municipality may have in mind a particular purpose, when deciding to
    expropriate. Even if the subsequent sale and transfer to Toyota had breached
    s. 106, this breach would not invalidate or vitiate the proper purpose for
    the expropriation and would not render the expropriation invalid. As explained
    by the trial judge, a compelling valid purpose (promotion of economic
    development), drove Oxfords decision to expropriate the mall lands and sell
    this land to Toyota for the expropriation price. The fact that the mall lands
    were transferred to Toyota for the expropriation price does not change the
    validity of the expropriation power that was exercised.

[12]

In
    other words, the appellants have an interest in the legality and propriety of
    the expropriation process and are entitled to receive the fair value of the
    mall lands as determined under the
Expropriations Act,
but their
    interests are not at stake in reviewing the second transaction. There is no
    suggestion of bad faith or any procedural failure that would invalidate the
    expropriation process.

[13]

Even
    if we accept the submission of the appellants to the effect that the
    expropriation and sale should be considered together as a single transaction, and
    that there was a breach of s. 106, this would not invalidate the expropriation and
    give rise to an entitlement to damages calculated by the excess of the fair
    market value taking into account the proposed development over the
    expropriation value provided under the
Expropriations Act
. There is
    nothing in the legislative purpose underlying s. 106 of the
Municipal Act
,
    (to level the playing field between municipalities competing to attract
    development:
Friends of Lansdowne Inc. v. City of Ottawa
, 2012 ONCA
    273, at para. 38), or in the language of s. 106 itself to suggest any intention
    to confer a right to damages upon land owners like the appellants.

[14]

In
    view of our conclusions that the appellants are not entitled to damages even if
    the sale to Toyota contravened s. 106(1) of the
Municipal Act
, we need
    not answer question 2. Similarly, we need not address the appellants argument
    that the trial judge erred by going outside the contractual arrangements
    between the Municipality and Toyota, and considering the community interest in
    the development in deciding whether a bonus had been provided.

[15]

In
    the result, the appeal is dismissed with costs to the respondents fixed at the
    agreed sum of $25,000.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.

G.
    Pardu J.A.