Case Name:

King v. Kawartha Lakes (City)

Between

Carl King, appellant, and

Corporation of the City of Kawartha Lakes,

respondents

[2004] O.J. No. 974

Court File No. 544/02

 Ontario Superior Court of Justice

 Divisional Court

MacFarland, Crane, and C. Campbell JJ.

Heard: February 6, 2004.

 Oral judgment: February 6, 2004.

 Released: February 25, 2004.

(5 paras.)

Administrative law -- Judicial review and statutory appeal.

Appeal by King from a referee's decision that he had no jurisdiction to hear King's appeal from a tribunal decision. The issue in the appeal was the referee's appellate jurisdiction in the context of a statutory right of appeal.

HELD: Appeal dismissed. The scope of jurisdiction for a tribunal created by statute was determined by the statute. The statute gave the referee broad appellate jurisdiction, but that jurisdiction was limited by another provision which provided that decisions of the tribunal were final. There was no right to appeal the tribunal decision to the referee. King's only recourse was to proceed by way of judicial review of the tribunal's decision. The referee was correct in finding he had no jurisdiction to hear the appeal.

Counsel:

Raymond G. Colautti and Anita Chatterjee, for the respondents.

Valerie M'Garry, for the Corporation of the City of Kawartha Lakes.

Sara Blake, intervenor for the Attorney General.

The judgment of the Court was delivered by

1 MacFARLAND J. (orally):-- The narrow issue raised on this appeal was succinctly stated by Mr. Colautti in his opening argument as follows:

"Where a statute gives a general right of appeal, it incorporates jurisdiction to determine if there has been an error of law or jurisdictional error by the tribunal in its conduct, such jurisdiction includes a breach of the rules of natural justice and bias."

2     In our view, where a tribunal is created by statute we must look to the statute to ascertain jurisdiction. While the drainage referee has broad appellate jurisdiction under s. 106(2) of the Act, that section is subject to s. 101.

3     The appeals with which we are here concerned were under ss. 48 and 54. Section 101 provides that decisions of the tribunal under ss. 48 and 54 (and others) is final. There is no right to further appeal the tribunal decision to the referee. A party who is not satisfied with the decision of the tribunal under those sections would have to proceed by way of judicial review in order to review the tribunal's decision. The grounds of appeal do not establish the jurisdiction of the tribunal, the enabling statute does.

4     In our view, the referee was correct in finding he lacked jurisdiction to hear the appeals. The appeal is dismissed.

5     The endorsement will read for both the appeal books: "For reasons given, the appeal is dismissed, no costs".

MacFARLAND J.

 CRANE J.

 C. CAMPBELL J.

cp/s/qw/qlesm