Beard Winter LLP overturns injunction application and appeal for LSRCA

Written by: Francesca D’Aquila-Kelly



This article was co-authored by John A Olah, Partner, and Francesca D’Aquila-Kelly, Lawyer, Beard Winter LLP

On March 5, 2019, the Ontario Superior Court of Justice released its decision in Brown v Lake Simcoe Region Conservation Authority and Ministry of the Attorney General, Ontario, 2019 ONSC 1485

Beard Winter LLP litigators John A. Olah and Francesca D’Aquila-Kelly were successful in dismissing an application for injunctive relief and appeal following a complex prosecution by the Lake Simcoe Region Conservation Authority (LSRCA) involving charges laid under the Conservation Authorities Act.

Beard Winter LLP, along with lawyers for the Province of Ontario, brought two preliminary motions to strike and dismiss the application and appeal on the basis that:

  • the proceedings were brought in the wrong court, the Superior Court of Justice instead of the Ontario Court of Justice;
  • the proceedings were initiated for the purpose of mounting a collateral attack on the trial judge’s ruling and, as such, constituted an abuse of process;
  • the proceedings were an improper attempt to circumvent section 111(1) of the Provincial Offences Act which requires the payment of the fine imposed before filing an appeal; and
  • the applicants, Mrs. Brown and her business entities, did not have standing to challenge the conviction and sentence given to her husband, Mr. Brown.

Justice Cavanagh released his decision 24 hours after the conclusion of the hearing. His Honour dismissed the application and held that the relief claimed in the application, seeking standing and challenging the decisions of the trial judge, was an impermissible collateral attack on the validity of the decisions made at trial by Her Worship Justice of the Peace Seglins. Justice Cavanagh relied on the legal rule against collateral attacks by duplicate proceedings, as stated in the Supreme Court of Canada decision, British Columbia (the Workers’ Compensation Board) v Figliola:

The rule against collateral attack similarly attempts to protect the fairness and integrity of the justice system by preventing duplicative proceedings. It prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designed appellate or judicial review route.

Justice Cavanagh dismissed the appeal on the basis that the appellants, Mrs. Brown and her business entities, did not have standing to challenge the conviction and sentence imposed on her husband, Mr. Brown, and because any appeal had to be brought in the Ontario Court of Justice and not the Superior Court of Justice.

The LSRCA and the Province of Ontario have submitted their costs submissions and have argued that the decision of Justice Cavanagh warrants costs payable on a substantial indemnity scale, that is costs approximating the client’s actual legal expenditure.
Do you have questions about this topic? Email Francesca D’Aquila-Kelly at fdaquila kelly@beardwinter.com  or call her at 416-306-1718 or email John Olah at jolah@beardwinter.com or call him at 416-306-1818.

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