


COURT OF APPEAL FOR ONTARIO

CITATION:

Curactive
Organic
    Skin Care Ltd. v. Ontario,
2012 ONCA 81

DATE: 20120207

DOCKET: C53873

Doherty, LaForme and Hoy JJ.A.

BETWEEN

Curactive Organic Skin
    Care Ltd.,

in
its own
    capacity and as representative of a class

Appellant

and

Her Majesty the Queen in right of Ontario, The Corporation of the City of Toronto and Toronto Transit Commission

Respondent

Proceedings under the
Class Proceedings Act, 1992

Stephen A. Edell, for the appellant,
    Curactive Organic Skin Care Ltd.

Graham Rempe, for the respondent, City of Toronto

Kathryn Chalmers and Patrick G. Duffy, for the
    respondent, Toronto Transit Commission

Heard: January 19, 2012

On appeal from the order of Justice Paul Perell of the
    Superior Court of Justice, dated April 6, 2011, with reasons reported at 2011
    ONSC 2041 (CanLII).

ENDORSEMENT

[1]

The motion judge found
that
    Curactives claim brought under the
Class Proceedings Act
, 1992
,
    S.O. 1992, c 6 was, in substance, one for injurious affection and that such
    claims fall within the exclusive jurisdiction of the Ontario Municipal Board
    (the OMB).  Because of the jurisdictional
    result, the motion judge dismissed Curatives action under Rule 21.01(3
)(
a).  Curactive
    argues in this court that the motion judge was wrong in dismissing Curatives
    action.  We disagree.

[2]

Injurious affection, is defined in s. 1 of the
Expropriations Act
, R.S.O. 1990, c. E.26.  It essentially means such reduction in the
    market value of the land, and such personal and business damages resulting from
    the construction
of the works
by a statutory
    authority.  Compensation claims for
    injurious affection under this statute are
    to be resolved either through mediation before a board of negotiation,
    or adjudication by the OMB.

[3]

Contrary to the appellants assertion, the
    courts jurisdiction can indeed be ousted in favour of an administrative
    tribunal through clear, explicit and unambiguous language in a statute
:
Canada (Attorney General) v.
    TeleZone Inc
.,
2010 SCC 62, at paras. 42-45
.  In
Curactives
    action
, the combination of the
Expropriations Act
and
Ontario Municipal Board Act
,
    R.S.O. 1990, c. O.28, s. 36, clearly confers jurisdiction over injurious
    affection claims on the OMB.

[4]

That Curactives action proceeded under the
Class Proceedings Act,
1992
,
S.O. 1992, c 6 does not alter the jurisdictional result.  As the motion judge affirmed at para. 36, t
he
Class Proceedings Act, 1992
is a procedural
    statute and does not confer substantive law jurisdiction on the courts: see
Bisaillon v. Concordia
    University
, [2006] 1 S.C.R. 666 at para. 22.

[5]

The motion judge correctly recognized that the
    substance and not the form of the pleadings governed the jurisdictional
    inquiry.  Regardless of what Curactive
    chose to call the claim, the Superior Courts jurisdiction depended on whether
    in substance Curactives allegations amounted to a claim of injurious affection.

[6]

In our view, counsel for the TTC is correct in
    contending that all of the claims made against the TTC come down to the
    allegation that the construction of the St. Clair Project took too long and
    unreasonably impacted on the businesses of the potential class members.  Using words like negligence and gross
    negligence to characterize this allegation does not alter its substance.  Consequently, insofar as the claims against
    TTC are concerned, we agree with the motion judges conclusion at para. 36 that
    the various claims advanced by Curactive were:

Being used to disguise what is a claim for compensation that is
    within the jurisdiction of the Ontario Municipal Board.

[7]

Furthermore, with one exception, we are
    satisfied that the claims made against the City are also claims for injurious
    affection that properly fall within the jurisdiction of the Ontario Municipal
    Board.  The one exception arises from the
    claim advanced in paras. 18 and 22 of the amended statement of claim.  In those paragraphs, Curactive alleges that
    the City: Unlawfully adopted an internal policy of blockbusting to
    intentionally cause harm to affected business interests 

[8]

In our view, an allegation to
intentionally
harm others is not a claim of injurious affection.

[9]

The City argued before the motion judge and
    again in this court that if any part of Curactives pleadings survived the
    jurisdictional claim, that part of the claim should be struck pursuant to Rule
    21.01(1
)(
b) on the ground that it discloses no
    reasonable cause of action.  The motion
    judge did not address these submissions given his determination on the
    jurisdictional question.  We think it is
    appropriate for this court to consider the argument as it relates to the one
    claim that has survived the jurisdictional challenge.

[10]

Paragraphs 18 and 22 of the statement of claim
    are allegations of abuse of public authority and/or misfeasance in public
    office.  The claims as pled do not
    identify any individual who engaged in any improper conduct, do not identify
    with any specificity the alleged improper conduct, and provide no particulars
    in support of the allegations that the conduct was done with the intention of
    harming Curactive and others affected by it.  We are satisfied that as pleaded, the claim discloses no reasonable
    cause of action for intentional misconduct on the part of the City.

[11]

Should Curactive be allowed an opportunity to
    amend its pleadings?  The City made
    Curactive aware of its position with respect to the inadequacy of the pleadings
    a long time ago.  Numerous attempts by
    the City to secure particulars from Curactive were all but ignored.  Given that history, it is not appropriate at
    this late juncture to allow Curactive an opportunity to take the steps that it
    has declined to take in the past.  Furthermore, there is nothing in the record before this court to suggest
    that Curactive is in a position to amend its pleadings in a manner that would
    give any reasonable substance to its claim of abuse of public authority against
    the City.

[12]

The appeal is dismissed.

[13]

Curactive, in its factum, asks this court to
    interfere with the costs award made by the motion judge.  While it does not appear that Curactive has
    actually sought leave to appeal the costs award, in any event we can find no
    reason to intrude on the exercise of the motion judges discretion on this
    issue.

[14]

Costs of the appeal are
    awarded to the respondents as follows: to the City, $10,000, and to TTC,
    $17,000.  Both awards are inclusive of disbursements
    and HST.

Doherty J.A.

H.S. LaForme J.A.

Alexandra Hoy J.A.


