Brandt et al. v. Armour (Town) et al., (2002) 167 O.A.C. 308 (DC)

• Judge: Del Frate, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: July 09, 2002
• Jurisdiction: Ontario
• Citations: (2002), 167 O.A.C. 308 (DC)

Brandt v. Armour (2002), 167 O.A.C. 308 (DC)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. AU.015

Jerry Brandt, Donald Cameron, Lori Haggart and Jill Kulchar (applicants/appellants in appeal) v. Corporation of the Township of Armour, Joanne Cripps - Councillor, Township of Armour, Gary McFarlane - Councillor, Township of Armour, Frank Gill - Reeve, Township of Armour, Al Bottomley - Trustee, Near North District School Board, Three Mile Lake Community Club Inc. and Near North District School Board (respondents/respondents in appeal)

(DV541/02)

Indexed As: Brandt et al. v. Armour (Town) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Del Frate, J.

July 29, 2002.

Summary:

The respondents' application seeking to invalidate a municipal election was dismissed. The respondents appealed. The applicants sought, inter alia, an order striking the respondents' Notice of Appeal.

The Ontario Divisional Court, per Del Frate, J., allowed the motion.

Courts - Topic 7504

Provincial courts - Ontario - Divisional court - Jurisdiction - Respecting appeals from final orders - The respondents' application seeking to invalidate a municipal election was dismissed - The respondents appealed - The applicants sought, inter alia, an order striking the respondents' Notice of Appeal - An issue arose whether the motion ought to be heard by a judge alone or by a panel of the Divisional Court - Rule 21(3) of the Court of Justice Act provided that a motion in Divisional Court should be heard and determined by one judge, unless otherwise provided by the Rules of Court - Rule 1.03 defined "motion" as a motion in a proceeding or an intended proceeding - The Ontario Divisional Court, per Del Frate, J., held that the hearing was a motion and that he could hear the matter as he was only adjudicating on a procedural aspect of the case - See paragraphs 4 and 5.

Practice - Topic 9009

Appeals - Notice of appeal - Striking out notice of appeal - The respondents' application seeking to invalidate a municipal election was dismissed on October 15, 2001 - A decision on costs was rendered on November 21, 2001 - A draft judgment was prepared for approval but was not issued and entered until May 7, 2002 - The respondents issued a Notice of Appeal on April 12, 2002 - The applicants sought, inter alia, an order striking the respondents' Notice of Appeal for not being served within 30 days after the date of the order appealed from (Rule 61.04(1)) - The respondents did not request an extension of time and provided no explanation for the delay - The Ontario Divisional Court, per Del Frate, J., struck the Notice of Appeal - The approval and issuance of the judgment was not a substantive matter - See paragraphs 14 to 19.

Cases Noticed:

Permanent Investment Corp. v. Ops and Graham (Township), [1967] 2 O.R. 13 (C.A.), refd to. [para. 14].

Ontario Guard Services Inc. v. Metro Toronto Condominium Corp. et al., [2001] O.T.C. Uned. 263 (Sup. Ct.), refd to. [para. 14].

Hill et al. v. Ross Memorial Hospital et al. (1995), 87 O.A.C. 141 (Sup. Ct.), refd to. [para. 14].

Christensen v. Scarborough (City) (1991), 44 O.A.C. 310 (Div. Ct.), refd to. [para. 26].

Glengarry Election Case (1888), 14 S.C.R. 453, refd to. [para. 26].

R. v. Genge, [1906] 8 O.W.R. 583 (Co. Ct.), refd to. [para. 26].

R. v. Horowitz, [1953] O.W.N. 526 (H.C.), refd to. [para. 26].

MacKay v. Edmonton, Kozak et al. (1986), 70 A.R. 62 (C.A.), refd to. [para. 26].

Counsel:

I. (MacLean), for the applicants/appellants in the appeal, Brandt, Cameron, Haggart and Kulchar;

Daniel J. Wyjad, for the respondents, Joanne Cripps and Gary McFarlane;

A.J. Campbell, for the respondent, Near North District School Board;

Robert L. (Bigioni), for the respondent, The Corporation of the Township of Armour.

This motion was heard on July 9, 2002, before Del Frate, J., of the Ontario Divisional Court, who released the following judgment on July 29, 2002.