Quigley v. Torbay (Town)

Date: 20100118 Docket: 09/35 Citation: 2010 NLCA 3 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: PAUL QUIGLEY APPELLANT AND: TOWN COUNCIL OF TOWN OF TORBAY DEFENDANT Coram: Cameron, Rowe and Harrington, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador 200601T5212 Appeal Heard: December 14, 2009 Judgment Rendered: January 18, 2010 Reasons for Judgment by Cameron, J.A. Concurred in by Rowe and Harrington, JJ.A. Counsel for the Appellant: Rebekah Slemin Counsel for the Respondent: Robert P. Pittman Page: 2 Cameron, J.A.: [1] The Town Council of the Town of Torbay applied to the Trial Division, pursuant to Rule 38.01 of the Rules of the Supreme Court, 1986, asking that the appellant Quigley’s application for orders in the nature of certiorari and mandamus be dismissed. The Trial Division judge granted the Town’s request. He also directed “that the matter will therefore move forward as presently before this Court as an Appeal Application which procedurally has not been discontinued.” The appellant appeals from that order. BACKGROUND [2] The history of this matter is a long and tortuous one which began in July 2000 when Mr. Quigley applied for a permit to operate a quarry within the Town of Torbay. That history was summarized by the Trial Division judge in a table which follows. July 5, 2000 Mr. Quigley applied to the Town of Torbay for a quarry permit. September 28, 2000 The Town of Torbay refused Mr. Quigley’s request for a quarry permit.1 November 3, 2000 Mr. Quigley appealed the decision of the Town of Torbay to the Eastern Regional Appeal Board. June 29, 2001 Appeal heard by the Eastern Regional Appeal Board. July 19, 2001 Decision by the Eastern Regional Appeal Board confirming the September 28 decision of the Town of Torbay in refusing Mr. Quigley’s request for a quarry permit. July 28, 2001 Mr. Quigley appealed the Eastern Regional Appeal Board’s decision to the Supreme Court of Newfoundland and Labrador, Trial Division before Goulding, J. September 18, 2002 Decision of Goulding, J. referring the matter back to the Eastern Regional Appeal Board. Re-hearing ordered before the Town of Torbay. November 25, 2002 Re-hearing by the Town of Torbay at a public hearing. November 28, 2002 Decision by the Town of Torbay rejecting Mr. Quigley’s application for a quarry permit. 1 The respondent’s factum states this decision was made October 16, 2000. Nothing turns on this point. Page: 3 November 19, 2002 Mr. Quigley appealed the November 28th decision of the Town of Torbay to the Eastern Regional Appeal Board. 2 June 3, 2003 Mr. Quigley’s appeal heard by the Eastern Regional Appeal Board. June 13, 2003 Decision of the Eastern Regional Appeal Board upholding the Town of Torbay’s discretionary authority rejects Mr. Quigley’s application for a quarry permit. June 25, 2003 Mr. Quigley appealed the June 13, 2004 decision of the Appeal Board to the Supreme Court of Newfoundland and Labrador, Trial Division. March 4, 2004 Orsborn, J. of the Supreme Court of Newfoundland and Labrador, Trial Division heard the appeal. March 31, 2004 Decision of Orsborn, J. that the Eastern Regional Appeal Board erred in deciding that it had no jurisdiction to hear the issue of bias. The matter was referred back by Orsborn, J. to the Eastern Regional Appeal Board to decide the issue of bias. August 19, 2004 The Eastern Regional Appeal Board conducted a re- and October 13, hearing on the issue of bias. 2004 November 8, 2004 Decision of the Eastern Regional Appeal Board: that the Town of Torbay was not biased in its considerations of Mr. Quigley’s application for a quarry permit and confirmed the Town of Torbay’s rejection of Mr. Quigley’s application. November 17, 2004 Mr. Quigley appealed the November 8, 2004 decision of the Eastern Regional Appeal Board to the Supreme Court of Newfoundland and Labrador, Trial Division. May 29, 2006 Mr. Quigley filed a Notice of Intention to Proceed with his Appeal of November 17, 2004. December 1, 2006 Mr. Quigley filed an Originating Application for certiorari and mandamus. December 12, 2006 The Town of Torbay filed an affadivit of objection in relation to Mr. Quigley’s December 1, 2006 application. 2 If the re-hearing by the Town Council was November 25, 2002, this date is in error. Once again, nothing turns on this point. Page: 4 December 15, 2006 Thompson, J. ordered proceeding to be heard on March 15, 2007. February 15, 2007 The Town of Torbay filed an Interlocutory Application seeking dismissal of the December 1, 2006 application of Mr. Quigley on the basis that it was out of time and the matter was set for appeal. February 22, 2007 Barry, J. (as he then was) directed that the Interlocutory Application of February 15, 2007 be heard on March 8, 2007. October 17, 2007 I [the Trial Division judge] commenced the hearing of the Interlocutory Application of February 15, 2007 at which time counsel for Mr. Quigley stated his intention to abandon the appeal of November 17, 2004 and instead proceed with certiorari and mandamus only. [3] The events following the filing of the decision of the Eastern Regional Appeal Board on November 8, 2004 are of particular importance to this appeal. Within 10 days of the filing of the decision, Mr. Quigley filed, in the Trial Division, a Notice of Appeal. Nothing happened thereafter until May 29, 2006 when Mr. Quigley filed of Notice of Intention to Proceed with the appeal. On December 1, 2006, Mr. Quigley filed an Originating Application for orders in the nature of certiorari and mandamus to quash the November 8, 2004 decision of the Eastern Regional Appeal Board. The respondent countered with the application which led to this appeal. That application was heard on May 22, 2007 and October 17, 2007. The decision of the Trial Division judge was filed on March 11, 2009. [4] At the hearing on May 22, 2007, the discussion between counsel for Mr. Quigley and the judge centered on the Trial Division judge’s concern that essentially Mr. Quigley was attempting to pursue by two different routes the same remedy in the same court. At the conclusion of the discussion it was agreed that counsel would seek the instructions of their clients before proceeding further with the Town’s application. During the October 17, 2007 hearing the substance of the Town’s application was considered. At that time, counsel for Mr. Quigley stated that he had instructions to discontinue the appeal. In answer to a question from the Trial Division judge, counsel for Mr. Quigley undertook to file the Notice of Page: 5 Discontinuance quickly. This Court has been advised that the Notice of Discontinuance was filed on October 25, 2007, 8 days after the hearing. Reading the transcript of the October 17, 2007 hearing, it is clear that the Trial Division judge believed that Mr. Quigley could not pursue both routes and he was requiring that Mr. Quigley make his election. I recognize this is inconsistent with what the Trial Division judge ultimately found in his March 2009 decision but the discussion between the Trial Division judge and counsel for Mr. Quigley in October 2007 can lead to no other conclusion. It must be noted, however, that at the October 17th hearing counsel for the Town stated that the Town would be arguing that even if the appeal were abandoned Mr. Quigley should not be permitted to avail of the prerogative remedies because an alternative remedy had been available to him. STANDARD OF REVIEW [5] This Court will be reluctant to interfere with the exercise of discretion by a justice of the Trial Division unless the appellant establishes that the Trial Division judge erred by failing to apply or by misapplying an applicable principle of law or by making a palpable and overriding error in appreciation of the facts: Moray Seafoods Ltd. v. Nasco Canada Ltd. (2006), 256 Nfld. & P.E.I.R. 219 (NLCA), para. 17. [6] During the course of his decision the Trial Division judge made a significant factual error when he said that the appeal had not been discontinued. However, I am satisfied that the conclusion reached to dismiss the application for orders in the nature of certiorari and mandamus was the correct one. DISCONTINUANCE OF THE APPEAL [7] At paragraph 16 of the decision, the Trial Division judge said that while Mr. Quigley had stated his intention to abandon his appeal, “he has not complied with the Rules of the Supreme Court in relation to a discontinuance of an action as required by Rule 19 of the Rules of the Supreme Court, 1986.” [8] There are two difficulties with that statement. First, Rule 19 of the Rules of the Supreme Court, 1986 has no application. The Trial Division judge quoted Rule 19.023 which is directed not to appeals but to a 3 19.02.(1) At any time after a proceeding is entered for trial or its hearing is commenced in chambers, Page: 6 proceeding which is entered for trial or its hearing is commenced in chambers. The applicable rule is Rule 58.01 which directs that the provisions of Rule 57 apply mutatis mutandis to civil appeals to the Trial Division. By Rule 57.19 “an appellant may discontinue an appeal by filing with the Registrar and serving upon the respondent a notice stating that the appellant has so discontinued it, whereupon the appeal shall be at an end … .” [9] As noted above, on October 25, 2007, long before the filing of the decision of the Trial Division judge, the Notice of Discontinuance had been filed by counsel for Mr. Quigley, as he had said he would do during the hearing of October 17, 2007. During the hearing of this Appeal, counsel for the parties confirmed that the Notice of Discontinuance had been properly served on the Town. However, for the reasons which follow, the discontinuance of the appeal does not impact the validity of the analysis of whether certiorari should be granted. CERTIORARI [10] The Town argued before the Trial Division judge that the application for orders in the nature of certiorari and mandamus4 should not be permitted for two reasons: the failure to comply with Rule 54.06 regarding certiorari, which required that the application be filed within 6 months of “… (b) the issuing of the order or award”; and the availability of an alternative remedy - that is, the appeal process provided by the applicable legislation. [11] The application of Mr. Quigley for certiorari and mandamus was commenced in excess of two years after the decision of the Board. The submission of Mr. Quigley in the Trial Division was that it was not until the decision of this Court in Sun Life Assurance Co. of Canada v. St. John’s (City), 2006 NLCA 62, filed November 7, 2006, that certiorari and mandamus became available in the circumstances of this case and he had acted quickly after the decision was filed. Therefore, he reasoned, the Court ought to exercise its discretion to extend the time for filing of the application. The Trial Division judge did not refer to the point in his (a) a plaintiff may discontinue the proceeding or withdraw any cause of action therein against any defendant; or (b) a defendant may withdraw the defence or any part thereof against any plaintiff, by filing a notice of discontinuance or withdrawal on which is endorsed the consent of all parties of record, or by leave of the Court. 4 The fact that under Rule 54 one seeks orders in the nature of certiorari or mandamus rather than writs does not change the essential nature of either remedy. Page: 7 decision. Rather he concentrated on the discretionary nature of the remedy of certiorari. Once again, in the Trial Divison, counsel for Mr. Quigley cited Sun Life as having changed the law to permit him to make such an application where prior to that the prerogative remedies would not have been available. [12] The appellant Quigley states, in his factum, that full arguments regarding all of the issues were not before the Trial Division judge “including complete details regarding the history of the matter in the appeals taken prior to the application for certiorari and mandamus, arguments regarding any applicable limitations periods and the availability of certiorari and mandamus.” This coupled with the error regarding the existence of the appeal, Mr. Quigley maintains, requires that another hearing be held in the Trial Division. I reject this submission. [13] The appellant knew the nature of the application by the Town. Counsel for the Town was clear about what he intended to argue which included that there was an alternate remedy and therefore the court ought not to exercise the discretion to grant the remedies sought. The kinds of evidence referred to in Mr. Quigley’s factum could and should have been presented on the application in the Trial Division. [14] Certorari and mandamus are discretionary remedies: Harelkin v. University of Regina, [1979] 2 S.C.R. 561. As Beetz J. noted in Harelkin (p. 575): “Over the years, the courts have elaborated various criteria which provide guidance as to how the discretion should be exercised.” The factors which are considered in determining whether an applicant should be permitted to proceed by way of certorari include: the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body. The factors are, however, not closed. The courts in particular circumstances isolate and balance the factors which are relevant: Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 at para. 37. [15] The general rule is that an application for certiorari will not be entertained where there is an adequate alternative remedy. The burden is upon the person who seeks one of the prerogative remedies – discretionary remedies of last resort – to satisfy the court that there is no adequate alternative remedy: Kingsbury v. Heighton 2003 NSCA 80, para. 102. [16] Where the alternative remedy is a right of appeal to a court, usually the court will decline to exercise the discretion to grant a prerogative Page: 8 remedy. This is true even though the time for appeal may have expired or leave to appeal may have been denied. The same reasoning would apply where an appeal had been discontinued. [17] At the same time, the courts have preserved the right to depart from the general rules in special circumstances. Sun Life did not change the law. It is consistent with long established law. Rather than enunciating a change in the applicable principles Sun Life is an example of special circumstances under which a prerogative remedy might be granted in spite of the existence of a right of appeal. In Sun Life the alternate remedy under consideration was not an appeal to a court but an appeal to the St. John’s Local Board of Appeal. Instead of pursuing that route, an application for orders in the nature of certiorari and mandamus was made to the Trial Division. The special circumstances of that case included the fact that all parties had proceeded on an erroneous view of a fundamental matter, which did not come to light until the issue was before the Court of Appeal. It should also be noted that in Sun Life the respondent did not contend that the prerogative remedy should be refused because of the existence of an alternative remedy. [18] There being nothing demonstrating special circumstances in this case, the decision of the Trial Division judge to dismiss the application for certiorari and mandamus is upheld. [19] There remains the obvious difficulty that the Trial Division judge made a directive to proceed with the appeal when it had, in fact, been discontinued. In the circumstances no such order should have been made. Consequently, the order dismissing the application for certiorari and mandamus is upheld, but the order that the matter proceed as an appeal is struck. The respondent is entitled to its taxed costs on a party and party basis. ______________________________ M. A. Cameron, J.A. I Concur: ____________________________ M. Rowe, J.A. Page: 9 I Concur: ____________________________ M. F. Harrington. J.A.