Pinnock et al. v. Ontario et al., (1998) 94 O.T.C. 295 (GD)

• Judge: Greer, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: December 16, 1998
• Jurisdiction: Ontario
• Citations: (1998), 94 O.T.C. 295 (GD)

Pinnock v. Ont. (1998), 94 O.T.C. 295 (GD)

MLB headnote and full text

Temp. Cite: [1999] O.T.C. TBEd. JA.028

Stella Pinnock and 741290 Ontario Inc. c.o.b. as Van Del Manor Nursing Home (applicants/responding parties on the cross-motion) v. Her Majesty The Queen in Right of Ontario, the Minister of Health, the Minister of Long-Term Care (respondents/moving parties on the cross- motion)

(Court File No. 98-CV-160144)

Indexed As: Pinnock et al. v. Ontario et al.

Ontario Court of Justice

General Division

Greer, J.

December 24, 1998 and April 8, 1999.

Summary:

The Minister of Health issued a proposal under the Health Facilities Special Orders Act to revoke 741290's nursing home license. The license was immediately suspended. The Minister assumed control of the nursing home pending an appeal to the Nursing Homes Review Board (the Board) and appointed a representative to manage and operate the home. 741290 and Pinnock, a shareholder of 741290 and the administrator of the home (the applicants), commenced an application against Ontario, the Minister of Health and the Minister of Long-Term Care (the respondents) seeking, inter alia, a declaration that: the respondents were required to continue the status quo of the home pending the hearing; the respondents were required to pay compensation; that neither the Nursing Homes Act or the Health Facilities Special Orders Act suspended a licensee's property rights and that the respondents were obliged to refrain from actively removing or encouraging the removal of residents. The applicants also sought a direction that the respondents had to pay Pinnock's and three employees' salaries. The respondents moved to dismiss the application on the grounds, inter alia, that: the court lacked jurisdiction; the relief sought was not available against the respondents; the appeals from the decisions were pending before the board and the matter was not appropriately dealt with by way of application.

The Ontario Court (General Division) dismissed the respondents' motion, holding that the applicants were entitled to seek declaratory relief in the circumstances. The determination of reasonable compensation could not wait the outcome of the board hearing and it was not clear that the Board had jurisdiction in that regard. The relief being sought dealt with property rights and only a court of inherent jurisdiction could hear it. The applicants were not seeking judicial review, where there was no decision of the Board to be reviewed. Even if the appropriate route was by way of judicial review, a single judge could sit on an urgent matter of judicial review. In supplementary reasons, the court awarded the applicants party and party costs (see paragraphs 26 to 39.

Editor's note: for a related cases see 94 O.T.C. 284.

Administrative Law - Topic 4501

Judicial review - Declaratory action - When available - See paragraphs 1 to 25.

Administrative Law - Topic 4566

Judicial review - Declaratory action - Bars - Matter given exclusively to a tribunal - See paragraphs 1 to 25.

Administrative Law - Topic 9063

Boards and tribunals - Jurisdiction of particular boards and tribunals - Nursing Homes Review Board (Ont.) - See paragraphs 1 to 25.

Government Programs - Topic 2285

Housing - Nursing or special care homes - Licenses - Suspension or revocation - See paragraphs 1 to 25.

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - See paragraphs 1 to 25.

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - See paragraphs 26 to 39.

Cases Noticed:

R. v. Leong Ba Chai, [1954] S.C.R. 10; [1954] 1 D.L.R. 401, refd to. [para. 7].

McMichael v. Ontario (1997), 105 O.A.C. 161; 36 O.R.(3d) 163 (C.A.), refd to. [para. 7].

Loomis v. Ontario (Minister of Agriculture and Food) (1993), 16 O.R.(3d) 188 (Div. Ct.), refd to. [para. 8].

Canada Post Corp. v. Canadian Union of Postal Workers (1989), 70 O.R.(2d) 394 (H.C.), refd to. [para. 11].

Sierra Club of Western Canada v. British Columbia (Attorney General) (1991), 83 D.L.R.(4th) 708 (B.C.S.C.), refd to. [para. 33].

Axton et al. v. Kent et al. (1991), 49 O.A.C. 32; 2 O.R.(3d) 797 (Div. Ct.), refd to. [para. 34].

Ontario Hydro v. Johnson (1985), 1 C.P.C.(2d) 234 (Ont. H.C.), refd to. [para. 34].

Statutes Noticed:

Nursing Homes Act, R.S.O. 1990, c. N-7, sect. 19(1) [para. 19].

Proceedings Against the Crown Act, R.S.O. 1990, c. P-27, sect. 14(1) [para. 8].

Counsel:

E. Morgan and Winston G. Mattis, for the applicants;

Leah Price, for the respondents.

This motion was heard on December 16, 1998, February 25, 1999, and March 4, 1999, by Greer, J., of the Ontario Court (General Division), who delivered the following judgment on December 24, 1998, with supplementary reasons released on April 8, 1999.