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Charter of Right and Freedoms – Constitutional law – Fundamental justice – Civil procedure – Stay – Whether the Court of Appeal for Ontario erred in finding the motions judge was correct in dismissing the application for a stay of proceedings – Whether the motions judge did not consider the sworn evidence of the appellant, Gary Nichols and whether the application for a stay of proceedings was dismissed without consideration of his material thus infringing s.7 of the Charter.

The applicants applied for a licence to quarry gravel in 1999. A licence was required under s. 7(1) of the Aggregate Resources Act. The Ontario Municipal Board granted a licence subject to certain conditions. On March 31, 2003, the Minister of Natural Resources forwarded to the company a Class “A” Category 2 Licence to operate a quarry under the Act. The licence was subject to 56 conditions imposed by the OMB and the MNR attached a separate list of 23 conditions that had to be addressed prior to the continued operation of the quarry as it had commenced operations in 2002, prior to a licence being issues. On April 14, 2003, the company’s licence was suspended for contravention of s. 15 of the Act. On October 7, 2004, the MNR revoked the license for failure to fulfill a remaining ten outstanding conditions. On November 7, 2006 an interlocutory injunction was ordered restraining the applicants from using the property as a quarry. There has been ongoing litigation and numerous proceedings since 2004 including three applications for judicial review, an appeal and numerous motions. In November, 2004, the company brought an application for judicial review seeking a review of the terms and conditions of the licence issued by MNR arguing that the list of 23 conditions provided with the MNR along with the licence did not form part of the licence. The Divisional Court found that the licence issued to the company by the MNR was in accordance with the OMB order. It found that the list of 23 “pre-operational conditions” did not form part of the license but these conditions were obviously included in the 56 conditions that did form part of the licence as Schedules “A” and “B”.

The MNR subsequently received information that the property had been leased and quarry operations were observed. The Crown brought a motion to have the company found in contempt as the Interlocutory Injunction was being breached. At this hearing, the applicants asked the motions judge for a stay of the contempt motion to permit them to seek leave to extend the time to appeal an interlocutory injunction order dated November 7, 2006 to determine whether in fact the licence that was revoked, which subsequently gave rise to the contempt motion, was in fact the licence as ordered by the OMB. On January 15, 2009, the motions judge found Gary Nichols and Nichols Gravel Ltd. in contempt and dismissed the application for a stay. The Court of Appeal upheld these findings and dismissed the appeal.