



COURT OF APPEAL FOR ONTARIO

CITATION: Tuchenhagen v. Mondoux, 2012
    ONCA 567

DATE: 20120830

DOCKET: M41619 (C55124)

Goudge, Gillese and Armstrong JJ.A.

BETWEEN

Robert Tuchenhagen

Appellant (Responding Party)

and

Gilles Mondoux

Respondent (Moving Party)

Chantelle J. Bryson, for the responding party

Rene E. Larson and Sergiel P. Ettinger, for the moving
    party

Heard and released orally: August 21, 2012

On motion to quash the appeal from the order of the
    Divisional Court (Wilson, Gordon and Lederer JJ.), dated October 26, 2012.

ENDORSEMENT

[1]

The respondent elector seeks to quash the appeal of the appellant member
    who was found to be in conflict of interest by the Superior Court. The
    Divisional Court, by majority, upheld that decision. Leave was granted to
    appeal to this court.

[2]

The respondent bases his argument on s. 11(2) of the
Municipal
    Conflict of Interest Act
, R.S.O. 1990, c. M50 (
MCIA
) and the
    jurisprudence of this court about it. Section 11(2) reads as follows:

The Divisional Court may give any judgment that ought
    to have been pronounced, in which case its decision is final, or the Divisional
    court may grant a new trial for the purpose of taking evidence or additional
    evidence and may remit the case to the trial judge or another judge and,
    subject to any directions of the Divisional Court, the case shall be proceeded
    with as if there had been no appeal.

[3]

In
Ruffolo v. Jackson
, 2010 ONCA 472, s. 11(2) was found
    to provide a complete code for appeals of decisions under the
MCIA
.
    The recent decision of
Amaral v. Kennedy
,
2012 ONCA 517, [2012] O.J.
    No. 3572,
reiterates that conclusion.

[4]

The appellant seeks to argue that s. 11(2) renders final certain
    decisions, namely those of the Divisional Court that are within jurisdiction
    and legally correct, but only those decisions. The appellant also argues that
    the reading proposed by the respondent risks leaving in place an unjust
    Divisional Court decision.

[5]

We do not agree with this approach to s. 11(2). We are bound by the
    decisions of this court that final in s. 11(2) means final, and that no
    appeal lies to this court from the Divisional Court under s. 11 of the
MCIA
. 
    Indeed, we agree with that position. The legislature has chosen in s. 11(2) to
    permit a member only an appeal to the Divisional Court, but no further.
    Therefore, regardless of the possible merits of the appeal itself we are
    prevented from hearing it by the legislation itself.

[6]

The appeal is therefore quashed. Given the costs order in the Divisional
    Court and the fact that this issue was not clearly raised on the leave
    application, costs to the respondent in the amount of $5000, inclusive of
    disbursements and applicable taxes.

S.T.
    Goudge J.A.

E.E. Gillese J.A.

Robert
    P. Armstrong J.A.


