07 13 2004 Sp Council Agenda
TOWNSHIP OF ORO-MEDONTE
SPECIAL COUNCIL MEETING AGENDA
COUNCIL CHAMBERS
DATE: TUESDAY, JULY 13, 2004
TIME: 6:00 PM
.........................................................................................................................
1. OPENING OF MEETING BY THE MAYOR
2. ADOPTION OF AGENDA
3. "DISCLOSURE OF PECUNIARY INTEREST AND THE GENERAL NATURE THEREOF -
IN ACCORDANCE WITH THE ACT"
4. DEPUTATIONS:
a) Jennifer Zieleniewski, CAO I Chris Williams, Aird & Berlis LLP, re: Council Liability.
5. IN-CAMERA:
a) Jennifer Zieleniewski, CAO, re: Legal Matter.
b) Deputy Mayor Hughes, re: Legal Matter.
6. BY -LAWS:
None.
7 . CONFIRMATION BY -LAW NO. 2004-079
8. ADJOURNMENT
l
THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE
BY-LAW NO. 2004-079
BEING A BY-LAW TO CONFIRM THE PROCEEDINGS OF THE SPECIAL
COUNCIL MEETING HELD ON TUESDAY, JULY 13, 2004.
THE COUNCIL OF THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE
HEREBY ENACTS AS FOLLOWS:
1. THAT the action of the Council at its Special Council Meeting held on Tuesday,
July 13, 2004, and in respect to each Motion, Resolution and other actions
passed and taken by the Council at its said Meeting is, except where prior
approval of the Ontario Municipal Board is required, hereby adopted, ratified and
confirmed.
2. THAT the Mayor and the proper Officials of the Township are hereby authorized
and directed to do all things necessary to give effect to the said action or to
obtain approvals where required and to execute all documents as may be
necessary on behalf of the Council of the Corporation of the Township of Oro-
Medonte. And, the Clerk is hereby authorized and directed to affix the corporate
seal to all said documents.
BY-LAW READ A FIRST AND SECOND TIME THIS 13th DAY OF JULY, 2004.
BY-LAW READ A THIRD TIME AND FINALLY PASSED THIS 13th DAY OF JULY,
2004.
THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE
Mayor, J. Neil Craig
Clerk, Marilyn Pennycook
~
AIRD & BERLIS LLP
Barristers and Solicitors
Patent and Trade Mark Agents
LIABILITY OF MUNICIPAL COUNCILLORS
Christopher J. Williams & John Mascarin
The General Rule:
. Individual members of a municipal council are not in general liable for acts done
in the ordinary exercise of their statutory powers and duties.
Region Plaza Inc v. Hamilton-Wentworth (Regional Municipality) (1990), 12
O.R. (3d) 750 (H.C.)
Montreal (City) v. Mongeon (1920), 31 Que. K.B. 526, 69 D.L.R. 660 (C.A.)
. Section 4 of the Municipal Act, 2001 provides that "The inhabitants of every
municipality are incorporated as a body corporate".
. Section 5 of the Municipal Act, 2001 provides that the powers of a municipality
shall be exercised by its council by by-law.
. As a corporate body, a municipality's powers will be governed by s. 27 of the
Interpretation Act, which provides as follows:
In every Act, unless the contrary intention appears, words making any
association or number of persons a corporation or body politic and
corporate,
(a) vest in the corporation power to sue and be sued, to contract and be
contracted with by its corporate name, to have a common seal, to
alter or change the seal at its pleasure, to have perpetual succession,
to acquire and hold personal property or movables for the purpose
for which the corporation is constituted, and to alienate the same at
pleasure;
(b) vest in a majority of the members of the corporation the power to
bind the others by their acts; and
(c) exempt individual members of the corporation from personal
liability for its debts, obligations or acts if they do not contravene the
provisions of the Act incorporating them.
Exceptions:
a. Criminal Code Offences
. Breach of trust by public officer, s. 122 of the Criminal Code:
Every official who, in connection with the duties of his office, commits fraud
or a breach of trust is guilty of an indictable offence and liable to
imprisonment for a tern not exceeding five years, whether or not the fraud
or breach of trust would be an offence if it were committed in relation to a
private person.
. Municipal corruption, subs. 123(1) of the Criminal Code:
Everyone who
(a) gives, offers or agrees to give or offer to a municipal official, or
(b) being a municipal official, demands, accepts or offers or agrees to
accept from any person,
a loan, reward, advantage or benefit of any kind as consideration for the
official
(c) to abstain from voting at a meeting of the municipal council or a
committee thereof,
(d) to vote in favour of or against a measure, motion or resolution,
(e) to aid in procuring or preventing the adoption of a measure, motion
or resolution, or
(f) to perform or fail to perform an official act,
is guilty of an indictable offence and liable to imprisonment for a term not
exceeding five years.
b. Safe Drinking Water Act, 2002
. Section 19 of the Safe Drinking Water Act, 2002 sets out a statutory standard of
care that must be met by owners of municipal drinking water systems:
(1) Each person listed in subs. (2) shall,
(a) exercise the level of care, diligence and skill in respect of a municipal
drinking-water system that a reasonably prudent person would be
expected to exercise in a similar situation; and
(b) act honestly, competently and with integrity, with a view to ensuring
the protection and safety of users of the municipal drinking-water
system.
(2) The following are the persons listed for the purposes of subs. (1):
1. The owner of the municipal-drinking water system.
2. If the municipal-drinking water system is owned by a
corporation other than a municipality, every officer and director
of the corporation.
3. If the system is owned by a municipality, every person who, on
behalf of the municipality oversees the accredited operating
authority of the system or exercises decision-making authority
over the system.
(3) Every person under a duty described in subs. (1) who fails to carry out
that duty is guilty of an offence.
. The duty imposed by s. 19 of the Safe Drinking Water Act requires municipal
councils, individual members of council and those persons delegated
responsibility for water service delivery to take all reasonable steps to prevent
users of the system from being exposed to any unreasonable health risks as a
result of consuming drinking water provided through and by municipal-drinking
water systems.
. Note: Section 19 has not yet been proclaimed in force.
c. Malicious Acts
. An action can only be brought against a municipal corporation alone for anything
done under an allegedly invalid resolution; individual council members can only
be sued for acts done maliciously.
Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) (1990), 12 O.R.
(3d) 750 (H. C.)
. Individual members of a municipal corporation are not liable for an act of the
municipality in its corporate capacity, unless they acted maliciously and the
corporate name was used to veil the malicious act, or unless the act is ultra vires
in which case the act cannot be considered an act of the corporation.
Kelliher v. Smith, [1931] S.C.R. 672, [1931] 4 D.L.R. 102; affirming [1930] 2
W.W.R. 638, 25 Sask. L.R. 65, [1930] 4 D.L.R. 938 (C.A.)
. The former Municipal Act prohibited an action against a member of the councilor
an employee or agent for a deed done in good faith under the statute or a by-law
passed under it. The municipality is, however, still liable for a tort committed by a
member or an employee or agent.
Robertson v. Orr (1923),23 O.W.N. 532 (C.A.), affirmed 59 S.C.R. 674
d. Defamation
. Members of municipal council enjoy a qualified privilege.
Prud 'homme v. Prud 'homme, [2002] 4 S.C.R. 663
. Statements made by a member of council in his public capacity at a council
meeting or one of its committees are prima facie privileged.
Faminow v. Reid, [1971] 5 W.W.R. 708, 24 D.L.R. (3d) 554 (B.C. S.C.)
. A defamatory allegation made at a council meeting which was not relevant to the
issue then before council has been held not to be protected by a qualified
privilege.
Drouin v. Gagnon (1975), 58 D.L.R. (3d) 428 (Alta. T.D.)
. This is a complex area of the law for which caution is advised.
e. Unauthorized Investments
. Councillors have historically been treated in a manner similar to trustees with
regard to liability for the unauthorized investment or expenditure of municipal
funds.
Patchell v. Raikes (1904), 7 O.L.R.470 (ant. c.A.)
. See s. 424 of the Municipal Act, 2001:
(1) If a council applies any money raised for a special purpose or
collected for a sinking or retirement fund to pay current or other
expenditures otherwise than permitted by this Act, each member who
votes for the application,
(a) is personally liable for the amount so applied which may be
recovered in a court of competent jurisdiction; and
(b) is disqualified from holding any municipal office for two years.
(3) If a council neglects in any year to levy the amount required to be
raised for a sinking or retirement fund, each member of the council is
disqualified from holding any municipal office for two years, unless the
member shows that he or she made reasonable efforts to procure the
levying of the amount.
Protections:
a. Actions Taken in Good Faith
. See s. 448 of the Municipal Act, 2001:
(1) No proceeding for damages or otherwise shall be commenced against a
member of council or an officer, employee or agent of a municipality or a
person acting under the instructions of the officer, employer or agent for
any act done in good faith and in the performance or intended performance
of a duty or authority under this Act or a by-law passed under it or for any
alleged neglect or default in the performance in good faith of the duty or
authority.
(2) Subsection (1) does not relieve a municipality of liability to which it
would otherwise be subject in response of a tort committed by a member of
council or an officer, employee or agent of the municipality or a person
acting under the instructions of the officer, employee or agent.
b. Nuisance Claims
. See subs. 449(1) ofthe Municipal Act, 2001:
(1) No proceeding based on nuisance, in connection with the escape of water
or sewage from sewage works or water works, shall be commenced against,
(a) a municipality or local board;
(b) a member of a municipal council or of a local board; or
(c) an officer, employee or agent of a municipality or local board.
c. Bona Fide Policy Decisions
. See s. 450 of the Municipal Act, 2001:
No proceeding based on negligence in connection with the exercise or non-
exercise of a discretionary power or the performance or non-performance of
a discretionary function, if the action or inaction results from a policy
decision of a municipality or local board made in a good faith exercise of the
discretion, shall be commenced against,
(a) a municipality or local board;
(b) a member of a municipal council or of a local board; or
(c) an officer, employee or agent of a municipality or local board.
d. Highway Repair Obligations
. Subsection 45(1) of the Municipal Act, 2001 (s. 288 under the old Act) prohibits
the bringing of an action against any member of municipal council personally for
damages sustained by anyone by reason of the municipality's default of its
obligation to keep its highways in repair.
(1) No proceeding shall be commenced against a member of council or
an officer or employee of the municipality for damages based on the
default of the municipality in keeping a highway or bridge in a state
of repair that is reasonable in light of all the circumstances,
including the character and location of the highway or bridge.
e. Indemnification
. A municipality has the power to indemnify its officers or councillors against
liability incurred by reason of any act done in the bona fide discharge of official
duties.
Nicholson v. Esterhazy, [1974] 6 W.W.R. 588 (Sask. Dist. Ct.)
. Ontario municipalities are empowered to enact by-laws to indemnify members of
council for damages or costs awarded against them or expenses incurred by them
as the result of any action arising out of acts or omissions in their capacity as
members and for assuming costs of the defence.
Santa v. Thunder Bay (City) (2003), 2003 CarswellOnt 2942 (Ont. S.C.J.)
. Special rules apply for matters under the Municipal Conflict of Interest Act.
::ODMA\PCDOCS\DOCS\1719605\1
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(519)B50-2288
COURT FILE NO.: 33277
ONTARIO
'.
SUPERIOR COURT OF JUSTICE
BETWEEN:
RSJ HOLDINGS INC.
Applicant
~ and -
'.
-THE CORPORATION OF TIm CITY OF
LONDON .
Respondent
KENNEDY J.:
)
)
) A1a~ R. Patto~ for the Applicant
)
)
).
)
)
)
)
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) James R. Caskey, for the Respondent
)
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) HEARD: April 30 and May 3~ 200-:t-
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[1] This motion arls~s out of an application by a developer to. qw;tsh an interim
control by-law passed by the City on January 19, 2004 which proposes to restrict
development on residential lands on both sides of Richmond Street between Huron
- .
Street and Grosvenor Street Ioqated in an area described as "Old North London~~.
[2J In addition to the dates of the affidavits ref~rred to herei~ the following
chronology is material:
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- November 24J 2003 - Applicant submits a she plan approval to the
respondent.
. ,
- December 1, 2003 - Applicant applied to the respondent's Chief B1P:1ding
Official for demolition permit to demolish the dwelling on its property.
- January 12) 2004 .. The respondent's Pla:uning. Co:rntnittee held a
confidential closed-door meeting' reg~ding an interim control by-law
affecting the l~ds described above including the applicant's property.
January 12, 2004 - The ~econd report of the Planning Corn.mittee
emana~s n-oDi the January 12th meeting.
- January 19, 2004 - Respondent's counc~ p~sses the by-law a.ft~r it has
been given three readings in open session bern'een 10:22 p.m. and 10:30
p.m. along with approXimately 30 other by-laws in public session.
- January 21, 2004 --Letter from applicant's counsel confirming telephone
conversation of' January 20, 2004,with'City Solidtor)s office directing
that' biB request for production .of documents relevant. to the interim
control by-law my.st be funneled to the attention of JanIce Page, Assi~tant
City Solicitor.
- Januilry 23, 2004.:.- Discussions between the clerk of the respondenfand
the applicant's solici~r conf1I1Ding that the building control by-law had
been pas~ed at the January 19, 2004 meeting.
... Febmary 17't 2004 - Institution of this application.
- FebIuary 18, 2004 - Notice of Appearance to the a.pplication filed by
City.
- April 5, 2004 - City Council ,directs the City Solicitor to bring a motion
in this application as follows: .
(a.) to strike the affidavits of Caranci and Polhill
,
(b) to seek an order removing the law firm of fatton Cormier &
Associates from the record :
(c) to retain. outside counsel to act for the City relevant to the
appiication
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[3] This' is a preliminary motion by the respondent City. fo strik~ tTom the
recor~ the folloWing affidavits~ . .
- Cont1'oller Walter (Bud) I>o1hil1 sworn March 301' 2004
- It should be clear that the uconfidential'J file memo attached to MI.
Polhill's affidavit h:id bc:en released' to the public a week previous to the
. .
January 12,2004 meeting and is a ID.atter of public record.
- Councillor Roger C81'aD.ci swom March 30, 2004
- Councillor Roger Caranci swomApri121, 2004
[4] Mr. Polhill and 1.vfr. Caranci are two members of the respondent's seven
m.ember Plant'lTng Committee
[5] The City also challenges the re~iner of me appIicartt's solicitor, Mr. Patton,
. .
on the basis of "impropriety" to quote the respondent's solicIt;or) and that his
actions in obtaining the above affidavits fiom. a City ~oni:rol1eJ:' and a CounCiI1or
. . .
both of whom were members. of the plannmg committee and botli of whom were in
attendance at the in camera me~ting and in approaching the City officials ::fuectly
when they knew the City had. legal repres~tation~ place him in conflict Council
,
for the City has alleged that:MI. Patton~s action and conduct in tJ:lls case constitute
a "'flagraIit" violation of the Rules of Practice of the Law Sooiety. wbicp. govern the
conduct of Counsel in Ontario.
[6] Mr. Caskey~s position for the City is that Polliill and Caranci are
representatives and officials of the City and should be identified with the City for
the purpose ofHtigation.
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[7] He suggests that because of Mr. Patton's dose relationship, in particular
with Councillor Caranci;) that :Mr. Patton knows exactly what V{ent on in an in
camera meeting on January 12th when the City by-Ia.w ~as described and approved
and that this infonnation should be cloaked with confidentiality not shared ,with
.
Patton OJ: the 'public.
[&] The City says that beca.use of this knowledge his close relation~p with the
d?ponents of the affidavits that Patton is in conflict and should be removed as
solicitors of record.
- [9] It s1?.ould be clear that the issues as to propri.ety of the in camera mee}ing ~d
whether it Was properly authorize~ and/or the validity of the restrictive by-law that
. .
followed and was pas~ed at subsequent mee1ings are no~ at this time, before the
court.
[10] The applica.tion is presently scheduled to be heard at a speCial appointment
in the Superior ?O'urt schedn':ed for May 26, f004:
[11] I have concluded in this case that the City; s pos.ition is "much ado about
"
nothing" and that the conduct of :Mr. Patton amounts to nothing more than . the
action which would be expected :tIom a.ggressivo and co'mpetent counsel,
knowledgeable in the: process.
[12] I find that there is nothing contained in the affidavits which was not already
.
in the public domain and readily ded4ced by experienced individuals familiar with
. procedure_
'. .
[13] I have not been referred:to any authority by counsel who have presuma.bly
conducted exhaustive research which ha~ persuaded me'tb.a.t the definition of 8. "in
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. camera ~1 proceeding or meeting excludes public disctlSsion after the fact about the
deliberations which took place 'during the meeting.
[14] Black's I;-aw Dictionary, seven .edi~on) defines in camera prQce~dings .a.t p.
1221 a.s follows:
I
I,
A proceeding held in ajudge.'s chambers or other private place.
[15] TJ1e Dictionary of Canadian ,Law, dehlXe edition, de:tines in camera at p.
499 as follows:
Des.cribe& a hearing which takes place either in a Judge's p~va.ta
room or in a court with clos~ doors ftom wbich eveJ.)'one except
people involved in the case are excluded. . .
[16] As to t1J.e definition of cCmeeting", I look to the decision of the Court of
.
Appeal in the case of Southam lnc. v, Economic Development Committee of the
Regional MunicipaJity of Hamilton-Wentworth (1988), p. 9' - .14~ the report of
which is appended to these reasons.
[17] Simply pu~.an in camera meeting is'a proceeding or deliberation that takes
place in a venue whe:r;e access is restricted and deliberation takes place in private.
There is no public representation present.
[18] Such a meeting is not cloaked with confidentiality' and there is no
. .
restri~tion on publication that follows. Such a meeting is not cloak~d with the like
. .
protection of s. 649 of the Crim.{nal Code which refers to jury deliberations which'
take pla~e outside public view nor is it similar.
[19] Perhaps a similar conclusion motivated the City .to pass a "Code of
Conflicf' By-law that is refened to in para. 22 of these reasons.
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[20] I accept the applicant's argument, ,that by participating in an in camera
.meeting in the circumstances which present, -members of the committee, 'With the
except1<m of. the M.a.yor, are independent legislators discharging the public duty ,
which they were el~cted tQ perfonn by voting in a matter that ip-depe~dently they
. .
were each f:11lpowered to deal with.. It is trite to say that iliere. is no property in a
witness.
[21] City CQntrollers are also councilors and in my view are free to hire their
own c01.1DSel and to be represented independently in these matters. The City
Solicitor does not represent ,Dr speak for these individuals unless ~th their consen.t.
These members of Council are not officers) agents or representativ~s of the City in
their own. capacity, Mr. Caskey does not represent these indiv.iduals personally.
, , .
They are independent,' and free to talk to whom they choose subject to their Code
of Conflict.
[22] Mr. Caskey referred m~ to the."Code of Cond~ct for Members of Councir'
which was establish~ by'by..law enacted September 2) 2003 and which is attached
to the affidavit, of the City Clerk at Tab A.
".
[23]" Paragraph 2 entitleq. "The Release Of Confi~entiai Information ProIribitedtC
reads as faUows: '
Me:p1bers of Council have th~ duty to hold in strict confidence all
information concerning matters dealt with at in. camera meetings.
A member' of Council shali not, ejther directly or indirectly,
"release, ~e public or in "any way devotes any such information
or any aspect of the in camera delib,erations to im,yone,' unless
expressly authQrized by Council or required by law to do so.
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Members of Council sha.ll not release information in
contravention of the provisions of the Municipal Freedom of
Information Protection or Privacy Act.
Members of Council shall not release information subj ect to
solicitor-clie.nt 'privilege~ unless expressly authorized by Council
or required by law to do so.
Members of Council shall ~ot misuse confidential 'informa-Q.~n
(Information that they nave knowLedge of by virtue of their
position as councilor tha~ is not in the public domain, including
e-mails and correspondence ;from other members of Council or
third parti~) such that it may cause' detriment to the C01:poration,
counselor others or benefit or detriment to themselves or ofuers,
!
[24] Nothing divulged in'the affidavits was not already in the public domain.
,
~t finding on'the information before me precludes determination whether or not
Polhill 01' Caranci' are in breach of the Municipal Regulai:.ion as aforementioned.
[25] , No :tesolution has been passed by counsel directing.a judicial investigation
into the conduct ofPolhill or Caranci under Section E of the respondent!s Code of.
Ethics. Lack of compliance if it exists is :not the current business of this oourt.
[26] The Court should remind the participants and witnesses in this adyersarial
process tha.t. the respondent)s Code of Conduct wa.s in effect at ~e time the by-law
was recommended and passed and that there are judicialsanctiotis to the described
prohib~ted activity which are enfo:rceabl~ in this court upon the direction of the
I '
City. The City has not chosen to exercise that discretion by p~ssing the required
resolution.
." [27] The approach by applicant's co~el to senior City 'employees ,directly
.
Was on notice and was done in a considered manner. :Mr. Patto~ was asking fot:
infonnation tha.t he .clearly s~ould have been entitled to or that was in. the public
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domain. These are not actions which are import.a.nt or serious enough to requh-e
m.y intervention.
[28] It is absurd to suggest that Mr. Patton's actions in this respe~ amount to
p~ofessional misconduct or would result in rear mischief or perceived injustice.
The applicant has a well recognized right to choice of counsel anti in this case there
.
exists a relationship of lengthy duration. There is nothing "in the evidence which
/ . .
would mandate that this signi+1cant right be distmbed.
[29] I wiJ.l receive short written subprlssions on costs wifbin 1.5
Released: May 10; 2004
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COURT FILE NO.: 33277
DATE: 2004"'06-23
RE:
ONTARIO .'
. Su:PERIOR COURT OF JUSTICE
RS.J HOLDINGS. INC. v. THE CORPORATION OF THE CITY OF
LONDON
BEFORE:
Mr. Justice D. R. McDermid at London on May 26, 2004.
COUNSEL: A. R. PattoD, for RSJ Holdings In.c., the Applican~ Responding Party.
J. R. Caskey,. for the Corporation ~f the City of London, the Respondent, .
Moving Party. .
ENDORSEMENT
. [1] Leave to appeal the interlocutory orders of Mr. Justice Kennedy. wbo dismissed the
. .
City's motiOll for all order ~g the affidaVits of Roger Caranci and Watter (Bu4) Polhill and ~
the City's motion for an order removing Patton Corinier & Associates as solicitors of record for
RSJ, is denied.
[2] The motions were braught in the context of an application by RSJ to obtain an order
quashlngthe City's Interim Control By-law C.P. 1438-33, the effect of which was to preventRSJ
from developing ce~ lands that it owns. MI. McIver, the principal of RSJ. swore an affi<:iavit.
in support of the applkation to. q~h in wl;rich~e claimed to have r.easotlabl~ grounds to believe
~t a v~te had been taken to. pass the bylaw at an in camera meeting of the committee of the
whole of the London City Council. Therefore, it is RSJ's positioll that the bylaw Yla.s passed
unlawfully, is invalid and ougbtto be quashed.
[3] . . The City sought to have that portio~ of Mr. Mclv~r' s affida,:it, and other portions, s~ck
on the gIoUI).d that they were frivolous, scandalous or vexatious. Mr. Patton then asked
Controller Polhill, who is also a. member of City Council, and Councillor Caranci if indeed a vote
'"
n
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ha.d been taken in committee of the whole to paSs 'the bylaw. He obtained an a.ff1davit from each
of them stating iD effect th~t on JanuarY 19, 2004~ London City Council, sitting in camera as
committee of the whole P1 a mee~g closed to the public. "voted to pass the inte~ control
bylaw." Both affidavits state that the bylaw was then continned wh.en 'Council came out of
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committee of the .whole. Th~ minutes show Council sat in committee of the whole in camera
from 7:57 p.m. to 10:22 p.m. Council passed the bylaw Without any recorded . debate or
discussion in the following eight-minute public session before it a,djo:umed at 10:30 p.m.
[4} The City's basic position is that the 8ffidavits should be struck because it was improper' ,
fOI a member of City Council to swear an a:ffi,davit containing confidential infonD.ation~ that is~
information about discussions that took pla~' at an in camera. mee?ng of committee of the whole
and also because a claim of soIicit~r and 'client privilege attached to the in camera deliberations.
(5] There was no evidence that either of the' CO\1D.CWors disclosed any of the discussions or
deliberations that took place at the in camera meeting. What they disclosed in their fiffidavits
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was simply ~e fact that a vote was taken to pass the interim control bylaw at the in camera
meeting.
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[6] Mr. Caskey submits that the affidavits were also' taIDted by Mr. Patton~s conduct in .
obtaining them during the course of litigation between the City and Mr. Parton's client, RSl.
without the prior knowledge or consent of the City Solicitor or counsel for the City. '
"[7] 'Whether or not all the statements made by Mr. Justice Kennedy are correct in law or were
necessary to decide ~ese two mo~oDS~ wlUch were fully 'argued. the key finding he made was
that the d1s~losure by tbe councillors was. not a breach o~ confi~entiality or ~e subject of
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solicitor and client privilege. He made this finding on the basis tha.t the infonnat:ioD was already
"in ~e'public domain and readily deduced by experienced in~vidua1s familiar with 'procedure."
[8] Ei~er the evidence supports this finding or it does not. If it does~ then there can be no
prohibition against disclosing something'that is already in the public domain, because it has by
definition lost the attribute of confidentiality, in the sense proposed by the City. If the evidence
does not support Mr. Justice Kennedy's finding that the infonnation 'was already in the public
donia~, then 'disclosing the act of voting to pass an interim control bylaw at an in ctJrt:lera
meeting of committee of the whole still does not constitute a breach of confidentiality. This is so
because an in ca,mera meeting for this ptupdse is not a~o:~ized by s. 239.(2) or, s. 239(6) of the
Municipal Act, 2001. 1 w~ch set out the ex.c~~ons to the general ~e e:nuncia.ted in s. 239(1)
that all meetings shall be held in public. In addition. s. .244 of the Act prohibits voting in secret
and specifies, ..... every vote so taken,., is of no effect," except as provided in s. 233; which
permits a secret vote to appoint the head' of council.
[9] With respect to the issue of solicitor and clien~ privilege, I cannot a.cceptMr. Caskey's
sub~s.sion that the circumsta.nces :fall Within S.' 239(2)(f) of the Municipal Act. 2001. Although
, the members of committee oftbe who~e n;rlght have received some ~dvice from the Cjty S~ltcitor
in camera:to which solicitor and client privilege could attach, neither councillor disclosed that
advice or any in camera discussions. What the coUncillors disclosed was simply that members of .
committee of the whole voted in camera to pass f;he interim control bylaw. The disclosure of the
mere fact that thi~ impropct and unauthorized vote was taken does not coDStitute a breach of
solicitor and client privilege in these circumstances.
.1 S.O. 2001, c.2.5'
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[10] As noted, none of the clauses' of s. 239(2) or of s. 239(6) of the Municipal Act, 2001
authorizes an in camera m~eti:ng for the purpose of voting to pass an interin;l control bylaw. If
there is no statutOry or other legal basis for concluding that the City was justified in holding a
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vote to pass the interim control byla~ ~t an in camera meeting, then there can be no sustainable
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claim of ~n:fidentiality about the.:fuct that such a vote was taken at that meeting. To find
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otherwise would encourage the ho]ding of in camera meetings to vote on matte,rs in secret that
sJ:;1ould be debated openly and subjected to public scrutiny.
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[11] In consi,dering the test in r. 62.02(4)(a), I do .not find the order Mr. Justice Kennedy made
regarding the issue of confidentiality to be iIi conflict with any other decision. The decision of
MI. Justice Keith in Re Ridout, 2 on wbich ~. Caskey relies, dealt ~th the disclosure of ~'a
detailed repOrt about what had taken pLace in caucus" and not the mer~ :fact 'that a. vote was taken
in ~mera 10 pass an interim control bylaw. T4e matters disclosed in Re Ridout Were not already
"in the public .domain" Moreover, that case was decided before s_ 239(2) and s. 239(6} of the
Municipal Act, 2001 were ~cted. In my Opi~OIl, the decision in Demide v. London Life
. "
Insur,anee Co. 3 is distingcishable on its facts. It did not deal wi~ a situation where a solicitor
obtained. inform.a~on that was neither co~dcntia1 in nature nor subj~ to solicitor andcJient
privilege. The decision in Hearst (Town) v. District School Board Ontario North East 4 dealt
with school trustees rather than municipal councillors. School trustees are governed by different
legislati.on and "are treated.cis officers and directors, whereas .municipal C9uncillors are not, wi1;h
the exception of the head or chief:executive officer of the municipal corpora.tion.
, .
2 [1971] 2 O.R. 257 (H. C.];)
, [2000] O.I."No. 3047 (S.C.J.) .
.. [2000] OJ. No. 3419 (S.C.J.)
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n2] Mr. Justice Kennedy also decided m effect that Mr. Patton's action in seeking this .
infDrmation from the two councillors in these particular circwnstanccs, notw:ithstanding that
there was ongoing litigation ~etween the CitY and. his client, RSJ, did not constitute professional
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misconduct and in any event was not sufficiently serious to deny RSJ' s right to be reprcsen~ed by .
:PBtton Cormier & Associates..
[13] Firstly, counsel did not refer Mr. Justice Kennedy to any other case that dealt with the
removal of a solicitor on facts remotely similar to this case. Secondly; I,am not persuaded that in
reacbing his conclusion :Mr. Justice Kennedy failed to applY'an Qbjective test. ThircUy" I am. not
. persua.df:d that his decision is in conflict with the decision of the majority in McDonald Estate 1'.
Martin, S upon which Mr. Caskey relies and to which Mr. Justice'Kennedy was referred. There,
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Mr. Justice Sopmka. wrote that in considering whether a laWyer was in'a position of conflict 'Of
interest by reason of the use of confidential inform~on the test was whether n... the public
repres~~ted by the reasonably i:nf~rmed person 'w~uld be' satisfied thftt no use of confidential
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information would occur." [Emphasis added.] In this case, the disclosure or reception ofllie fact
that there was a vote to pass the interim control bylaw at the in camera meeting did not relate to
confidential information for the reas.ons.! have given. Moreover, the ~o si~ua.tions are different
because MI. Justice SQPinka. was referring to the use of confidential information obtained by a
solicitor :f!'om a client or former client. :Finally, even applying that test to the situation at hand3 I
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am not persuaded that a reason~ly ~onned per-son wowd be satisfied thai :tvfr. Patton bad aCted
improperly in these circwnstan.ces to such a degree that his firm ought ,to 'be removed from the
record.
, [1990] 3 S.C.R. 1235, paragraph 44. (S.C.C.)
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[14] Mr: Justice Ketmedy was made aware of City C<:>>un~il's Code of Conduct for members of
City Council, Rule 4:~3' of the ~ules of PrbfessioIial ~<,Jnduct of the ~aw, ~o.ci.ety of Uppex: .
Canada and the statutes and caSes upon which:Mr. Caskey relies. Mr. Patton contends that the
two councillors are independent legislators and not per.sons "involved in the decision making
process" for the City and, th~refore, are not ca~ght by Rule 4:03. Even if it might be said that
they were involved in the decision making process and that Mr. Patton approached them without .
the prior knowledge and' consent of the City Solicitor or counsel for the City, that does not mean
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t:hErt Mr. Patton must be removed from the record antomati.c~ll:r. Hav,wg regard to aU the
circumstances, including the actioD.s of0e City, Mr. Jus~ce Kennedy exercised his discretion in
,such ,a way as to refuse the motion k> remove Patton Cormier & ~sociates as counsel of record
for RSJ.
[15] At this early stage of the proceedmg, a reasonably informed, perso~ might well speculate
about the reason for the City's objection to the diSc~osure of what the two councillors alleged in
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their sworn but as yet untested affidavits to be in effect an improper and unauthorized vote to '
pass the interim control bylaw at ~ in' camera meeting that was hidden from the glare of public
scrutiny and remo-yed from the arena ofpubli~ debate., While the affi.da~i:~,filed on bebalfofthe
City maintain that the interim control bylaw was passed at a subseqUent open 1n~ting of City
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COWlcil. which pass~ge occurred, in Mr. Patton's ,subID;ission" without pr~or notice to the public,
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open discusslon or debate, they do not deny ~at a vote was tak.~ to pass the bylaw at an in
ca~ra .meeting as alleged by the two ~cillors in their affi~vits. It remains to be seen
whether this proves in fact to be the case. but that was the evidence that Was b~fore 'Mr. Justice
Kennedy and upon which he, had to exercise his discretion and base bi.s decision.
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[16] With respect to the issue of removing Mr. Patton from the r~cord, th,e situation before Mr.
Justice Kennedy was unique. Ii Wl.'!-S not duplicated in any of the cases cited 10 him.. In the
circumstances, I am unable to say that Mr. Justice Kennedy exercised hi~ discretion wrongly or
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that he failed to follo"Y the proper principles in doing so. In order for there to be a "conflic:ting
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decision," "It is necessary'to demonstrate a difference ~n the principles 9bosen as a guide to the
exercise of discretion," ~ I am not satisfied that the City has done so 'With regard to this issue.
[17] Regarding the test in r. 62.02(4)(b), fQI the above reasons I have nO reason to doubt the '
correctness of the orders Mr. Justice Kennedy made, namely,
(a) to dismiss the mo~on to strike the affidlivits 'of the ~o councillors because their
disclosure ?f the fact that th~ ~ a vote at an.in camera meeting of committee
of the whole to pass the interi,m control bylaw
(i) did not constitute a breach of confidentiality, and
(ii) was ,not subject to any vali~ claim of solicitor and client privilege, and
(ill) was not'tainted by the. actions ofMr; Patton; and,
(b) in these unique ci:i-cumstances, to ~xercise his discretion in such a way as to
dismiss the m'otion to remC!ve Patton Cormier & Associates as counsel of record
for RSJ.
[18] My opinion that s. 239(2), s. 239(6) and s. 244' of the Municipal Act, 2001 do not
authorize, a vote to pass an interim control bylaw at an in camera meeting of committee of the
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whole is restricted s~lely to the issue of can:(identiaJity in the cOI;ltext of this motion for leave to
appeal and is not io be taken as determining ~ validity of the interim c?Dtral byle.w) which luls
yet to be decided.
[19] If counsel are unable to agree abqut the costs of this motion:, they may make 'Written
sub~sions within 15 days.
DATE:
June 23) 2004.
"
~
Mr. JusticcD. R.. McDermid
. ,
.; Co:m.trade Petroleum v. 490300 OntarioL/d (1992); 70.R (3d) 4.52 (Div.Cl.)
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COURT I7ILE NO. 33277
DATE: 2004-06;..23
ONTARIO
. SU~ERIOR COURT OF JUSTICE
B E 'I' WEE N:
'RSj HOLDINGS INC.
The Applicant, Respon~ Party
- and - .
'I'HE CORPORATION OF THE CITY OF
LONDON
The Re~ponden~. Moving Pia..t1.y .
ENDORSEMENT
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,
RELEASED: June 23, 2004 by
Mr. Justice D. R. Mc:Ocrnrid.
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AIRD & BERLIS LLP
Barristers and Solicitors
Patent and Trade Mark Agents
THE CORPORATION OF THE
TOWNSHIP OF ORO-MEDONTE
MUNICIPAL CASE LAW UPDATE
John Mascarin
Aird & Berlis LLP
BCE Place, Suite 1800
Box 754, 181 Bay Street
Toronto, Ontario M5J 2T9
Telephone: 416.865.7721
Fax: 416.863.1515
E-mail: jmascarin@airdberlis.com
July 13, 2004
Index
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MUNICIPAL LAW CASE LAW UPDATE
Index
Case Tab
United Taxi Driver's Fellowship of Southern Alberta v. Calgary (City) 1
(March 25, 2004) (S.C.C.)
Spheres of jurisdiction - General municipal powers to be broadly and
purposively interpreted and applied
Congregation des Temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine 2
(Village) (June 30, 2004) (S.C. C.)
Zoning - Procedural fairness - Municipality denying rezoning
applications without reasons - breach of duty of procedural fairness
Constitutional law - Freedom of religion - Right to freedom of religion
not being absolute
Horton v. Greater Sudbury (City) (May 6,2004) (Ont. C.A.) 3
Smoking by-laws - Validity - City having implied authority to require
employers to adopt and implement by-law restrictions
Brown v. Toronto (City) (April 23, 2004) (Ont. C.A.) 4
Notice of action - Time - Computation of time to provide notice of
accident within 7 days of occurrence
Owens v. Brantford (City) (May 5,2004) (Ont. S.C.J.) 5
Highways - Maintenance and repair - Duty owed by municipality to
pedestrians over highway
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Allen v. Renfrew (County) (February 10, 2004) (Ont. S.C.J.) 6
Council meetings Constitutional law - Freedom of religion - Recitation
of non-secular prayer at opening of council meetings
Carrocci v. McDougall (Township) (May 18, 2004) (Ont. S.C.J.) 7
Municipal tax sales -Invalidating sale - Non-compliance with O. Reg.
181/03 - Deposit being less than 1 cent of minimum required amount
Ontario Mission of the Deafv. Barrie (City) (March 23, 2004) (Ont. S.C.J.) 8
Site plan approval Lifting of one-foot reserve - Municipality not having
absolute discretion as to when to lift one-foot reserve
Pimenova v. Brampton (City) (May 13, 2004) (Ont. S.C.J.) 9
Licensing - Body rub parlour by-law - By-law improperly regulating
morality within exclusive federal jurisdiction over criminal law
1562850 Ontario Limited v. Toronto (City) (April 15, 2004) (Ont. S.C.J.) 10
Building and demolition permits - Issuance - Right to refuse
::ODMA \PCDOCS\DOCS\ 1718359\ 1
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UNITED TAXI DRIVERS' FELLOWSHIP OF SOUTHERN ALBERTA
v. CALGARY (CITY)
Supreme Court of Canada
McLachlin C.J., Iacobucci, Major, Bastarache, Binnie, Arbour,
LeBel, Deschamps, Fish JJ.
Heard - December 8, 2003
Judgment -- March 25, 2004
No. 29321
Municipal powers - Spheres of jurisdiction - Interpretation - City's taxi
licensing by-law freezing number of taxi licences - Freeze on new licences
authorized under general spheres of jurisdiction in ss. 7 and 8 of Municipal
Government Act, R.S.A. 2000, c. M-26 - Municipal powers to be broadly and
purposively interpreted.
The City of Calgary regulated its taxi industry through a taxi business by-law that
had been passed pursuant to s. 234 of the old Municipal Government Act, R.S.A.
1980, c. M-26, which required all taxis to have taxi licence plates. The legislation
provided the city with the express power to limit the number of taxi licences that
were issued. In 1993, the City of Calgary passed a by-law which froze the number
of taxi plate licences at the level established by the City's taxi commission in 1986.
That statute was replaced by the Municipal Government Act, 1994, S.A. 1994, c. M-
26.1 [now S.A. 2000, c. M.26], which gave the city a general power to pass by-laws
respecting transport and transportation services through broad spheres of
jurisdiction instead of specifically delineated and prescribed powers (including taxi
industry regulation). The respondents challenged the validity of the freeze on new
licences and applied for a declaration that the by-law was ultra vires. The chambers
judge found that the city had the ability to restrict the number of taxi licences under
the Municipal Government Act and he dismissed all the other challenges to the
validity of the freeze. The respondents were successful on appeal. The City
appealed to the Supreme Court of Canada.
Held: The appeal was allowed.
The City was validly authorized under ss. 7 and 8 of the new Municipal Government
Act to enact a by-law to limit the number of taxi licences that could be issued. The
proper standard of review was correctness as municipalities must always be correct
in delineating their jurisdiction. Legislative powers granted to municipalities were to
be interpreted in accordance with a broad and purposive approach. Such an
approach was consistent with s. 9 of the Municipal Government Act and s. 10 of
Alberta's Interpretation Act, as well as with the modern principles of statutory
interpretation in general. There was no indication that the legislative drafters
intended to remove the City's previous powers to limit the number of taxi licences.
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General Grants of Municipal Powers
To Be Broadly Interpreted
by John Mascarin
Introduction
The Supreme Court of Canada released its much-anticipated decision in United
Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City) on March 25, 2004.
Why is this decision concerning a municipality's ability to limit the number of taxi
licences to be issued of such national importance? In a nutshell, the judgment is
important because the Supreme Court of Canada ruled that municipal legislative
powers conferred by general spheres of jurisdiction will be broadly interpreted and
applied. What kind of impact will this unanimous decision have for municipalities in
Canada? The decision is significant because it provides the most authoritative
guidance regarding the interpretation of statutory grants of generalized municipal
powers which are now the norm in most jurisdictions throughout Canada.
Background
United Taxi Drivers involved the regulation of the City of Calgary's taxi industry. The
City had passed a taxi business by-law pursuant to s. 234 of the former Municipal
Government Act, R.S.A. 1980, c. M-26, which required all taxis to have taxi licence
plates. The former legislation provided the City with the express power to limit the
number of taxi licences that were issued. Clause 234(2)(b) specifically provided that
a by-law to license, regulate and control taxi and limousine businesses could "limit
the number of taxi and limousine licences that may be issued in the municipality
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having regard to its population or the area to be served in it or by any means the
council considers to be just and equitable."
In 1993, the City passed a by-law which froze the number of taxi plate licences.
One year later, the Provincial Government enacted the new Municipal Government
Act, 1994, S.A. 1994, c. M-26.1 [now S.A. 2000, c. M.26], which gave the City a
general power to pass by-laws respecting transport and transportation services and
businesses, business activities and persons engaged in business through broad
spheres of jurisdiction, instead of through specifically delineated and prescribed
powers relating to taxis and limousines.
Municipal Legislative Powers
The traditional legislative approach relating to municipalities in Canada had been
for the provinces to provide their municipalities with a prescriptive list of powers
through a comprehensive local government statute. Powers were typically
assigned in an itemized and narrow manner through an omnibus municipal
statute (the former Ontario Municipal Act is a prime example).
Alberta became the first province to move away from the utilization of the
traditional so-called laundry-list approach to regulate the activities and powers of
local government when it enacted the Municipal Government Act, 1994. This
statute took an entirely new approach toward the regulation of municipal
government and combined a number of major features that formed the model for
municipal legislative reform initiatives in other provinces.
Alberta gave its municipalities the powers of a natural person and conferred
broad-based general powers upon them. Section 7 of the Municipal Government
Act, 1994 provided municipalities with broad grants of authority to enact by-laws
from a number of general jurisdictional realms. Section 8 imbued them with
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certain governmental powers that otherwise would not be available to natural
persons but which are imperative to municipalities (such as the authority to
impose fees and charges and to regulate, prohibit and license various activities).
The Municipal Government Act, 1994 was hailed as a new standard for general
municipal legislation, which served to provide much-needed flexibility and local
autonomy for municipalities.
Other Canadian jurisdictions have generally followed the model established in
Alberta's Municipal Government Act (including Manitoba, Nova Scotia,
Saskatchewan, the Yukon Territory, Saskatchewan and Ontario). In fact, there is
a remarkable similarity in the language setting out the scope of by-law making
powers and the spheres of jurisdiction in subs. 232(1) and (2) of Manitoba's The
Municipal Act, S.M. 1996, c. 58; ss. 265 and 266 of the Yukon Territory's
Municipal Act, 1998, Y.S. 1998, c. 19; subs. 8(1) and (3) of Saskatchewan's
Cities Act, 2002, S.S. 2002, c. C-11.1; subs. 9(3) and s. 11 of Ontario's Municipal
Act, 2001, S.O. 2001, c. 25; and the corresponding general jurisdiction to pass
by-laws (s. 7) and the governmental powers under such by-laws (s. 8) under the
Alberta statute.
Moreover, the general interpretative provisions in these statutes (s. 9 in Alberta,
s. 231 in Manitoba, s. 263 in the Yukon Territory, s. 6 in Saskatchewan and subs.
9(1) in Ontario) are virtually identical in wording and substance in requiring that
general grants of powers be given a broad interpretation in order to "enhance the
ability" of municipal councils to "respond" to their particular communities' issues.
Given the similarities of approach, wording, function and purpose in the various
recently enacted municipal statutes, the Supreme Court of Canada's
interpretation of sections 7 and 8 of Alberta's Municipal Government Act is bound
to have consequences in all jurisdictions.
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The Previous Proceedings
The United Taxi Drivers' Fellowship of Southern Alberta and a number of taxi
drivers and operators (the respondents) challenged the validity of the City's freeze
on new licences as well as its use of a lottery system to distribute revoked or
relinquished licences. The respondents applied for a declaration that the by-law
was ultra vires the City's authority under the Municipal Government Act and that a
number of their constitutional and Charter rights were being violated. The chambers
judge found that the City had the ability to restrict the number of taxi licences under
the Municipal Government Act and he dismissed all the other challenges to the
validity of the freeze. The chambers judge determined that the purpose of the
general grants of authority under the statute was to broaden and enhance the
powers of municipalities to deal with local issues (which was exactly in accordance
with the express wording in s. 9 of the Municipal Government Act).
However, on appeal, the Alberta Court of Appeal (in a 2-to-1 decision) held that the
new statute and its general grant of authority did not authorize the City to limit the
number of taxi plate licences. The majority of the Alberta Court of Appeal
determined that the provisions of the by-law that froze and limited the number of
taxi licences was ultra vires the City's authority. What is interesting about the
majority decision is that it spends an inordinate amount of time discussing the
"benevolent approach" adopted by the courts to scrutinize municipal actions only to
determine that the general governmental power to "prohibit and regulate" under s. 8
of the Alberta statute did not encompass the power to limit the number of taxi
licences that could be issued. Wittmann J.A., writing for the majority, noted that:
"the real issue is whether the wording of the new MGA, under a benevolent
construction, can be construed so as to impliedly permit a limit on the number of
[licences]". In construing the issue in such a manner, the learned justice wrongly
framed the question. In the context of general grants of power (or spheres of
jurisdiction), it just does not make sense to apply the traditional prescriptive power
test to determine whether particular municipal actions are validly authorized.
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Justice O'Leary, in dissent, instead quoted from the general "broad interpretation"
guideline in s. 9 of the Alberta statute and then wrote:
Section 9 makes it quite clear that the legislature intended the
statutory provisions in ss. 7 and 8 (spheres and governmental
powers) to have generic or broad application to all businesses and
industries within the City. The intent was to give comprehensive
power to the City to pass by-laws dealing with matters that have
historically been within municipal jurisdiction. It was intended that the
powers under the MGA be enhanced, that is increased, compared to
those granted by the former Act.
Justice O'Leary concluded (citing the Supreme Court of Canada's own decision in
Nanaimo (City) v. Rascal Trucking Ltd.) that "[a] broad purposive approach should
be used to determine the scope of the powers conferred on the City by the MGA."
The City of Calgary sought and obtained leave to appeal to the Supreme Court of
Canada on the issue of whether the City's freeze on the issuance of taxi licences
was ultra vires the City under the Municipal Government Act.
The S.C.C.'s Ruling
The Supreme Court of Canada unanimously allowed the City's appeal. Justice
Bastarache, writing for the Court, held that the City was validly authorized under ss.
7 and 8 of Municipal Government Act to enact a by-law to limit the number of taxi
licences that could be issued.
Bastarache J.A. looked at the legislation in context of the evolution of "modern
municipal legislation" and acknowledged the seminal dissenting opinion of
McLachlin J. (as she then was) in Shell Canada Products Ltd. v. Vancouver (City)
where she forcibly argued against the "narrow interventionist approach" and
reasoned that "a generous approach to municipal powers is arguably more in
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keeping with the true nature of modern municipalities." As noted by Bastrache J.,
following Shell Canada, "[t]he 'benevolent' and 'strict' construction dichotomy has
been set aside, and a broad and purposive approach to the interpretation of
municipal powers has been embraced."
This approach was consistently followed in several other subsequent Supreme
Court of Canada decisions. For example, in Nanaimo (City) v. Rascal Trucking Ltd.
(2000), 9 M.P.L.R. (3d) 1, [2000] 1 S.C.R. 342, 76 B.C.L.R. (3d) 201, 20 Admin.
L.R. (3d) 1,183 D.L.R. (4th) 1, 132 B.C.A.C. 298, 215 W.A.C. 298, 251 N.R. 42,
2000 CarswellBC 392, 2000 CarswellBC 393 (S.C.C.) [summarized 5 D.M.P.L.
349], Justice Major wrote on behalf of the Supreme Court of Canada:
The process of delineating municipal jurisdiction is an exercise in
statutory construction. There is ample authority, on the
interpretation of statutes generally and of municipal statutes
specifically, to support a broad and purposive approach.
In 114957 Canada Ltee (Spray-tech, Societe d'arrosage) v. Hudson (Town), [2001]
2 S.C.R. 241, 19 M.P.L.R. (3d) 1, 200 D.L.R. (4th) 419, 271 N.R. 201, 2001
CarswellQue 1268, 2001 CarswellQue 1269, 271 N.R. 201, 40 C.E.L.R. (N.S.) 1
[summarized 6 D.M.P.L. 150], the Supreme Court of Canada quoted McLachlin J.'s
reasons in Shell Canada with approval in holding that a broad approach to the
interpretation of general municipal powers is warranted in order that local
governments have flexibility "to deal with the unforeseen or changing
circumstances, and to address emerging or changing issues" within their
communities.
Finally, in Guignard v. St-Hyacinthe (Village), [2002] 1 S.C.R. 472, 27 M.P.L.R.
(3d) 1, 49 C.R. (5th) 95, 282 N.R. 365, 92 C.R.R. (2d) 63, 209 D.L.R. (4th) 549
[summarized 6 D.M.P.L. 319], Mr. Justice LeBel wrote:
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This Court has often reiterated the social and political importance of
local governments. It has stressed that their powers must be given a
generous interpretation because their closeness to the members of
the public who live or work within their territory make them more
sensitive to the problems experienced by those individuals.
Therefore, legislative powers granted to municipalities are to be interpreted in
accordance with a broad and purposive approach. Such an approach was found to
be consistent with s. 9 of the Municipal Government Act and s. 10 of Alberta's
Interpretation Act and in keeping with statutory interpretation in general. Bastarache
J. found that the respondents' narrow interpretation was untenable and could not be
reconciled with the language of the statute.
Finally, Bastarache J. gives credence to the fact that the Municipal Government
Act was designed to provide municipalities with increased flexibility so as to
better regulate local activities and services. Notwithstanding statements from the
provincial government and the legislative drafters that no municipal powers would.
be lost in transition, municipalities have always harboured a certain apprehension
that some of their powers would be lost in the conversion from specifically
itemized powers to general grants of authority. The Alberta Court of Appeal's
decision in United Taxi Drivers was a perfect illustration of that fear coming to
life. Bastarache J. notes that there was no indication that the legislative drafters
intended to remove the City's previous powers to limit the number of taxi licences.
The Justice utilizes the strongest possible words to disclaim the respondents'
arguments on this point:
Here, there is no indication in the Act that the legislature intended to
remove the municipality's power to limit the number of taxi plate
licenses. To the contrary, s. 9(b) indicates that the legislature did not
intend to curtail the powers exercised by municipalities but rather
sought to enhance those powers under the new Act subject to the
limitations in ss. 70-75, which do not preclude limiting the number of
taxi licences. It is unconceivable, in my view, that the legislature
would have intended to indirectly limit the ability of municipalities to
regulate the taxi industry according to a practice dating 15 years and
to adopt the restrictive approach defined in Merritt v. City of Toronto
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(1985),22 O.A.R. 205, at pp. 207-8, simply by changing its method of
drafting legislation. The new method was in fact specifically designed
to avoid the need for listing matters and powers.
This point may be the most significant aspect of the decision in the short term.
Conclusion
Before the Supreme Court of Canada rendered its decision in United Taxi Drivers
the question had been whether the courts would continue to broadly interpret and
provide a deferential interpretation for municipalities' exercise of their general
authorities under the new municipal legislation. That question has now been
answered emphatically in the affirmative. The Supreme Court of Canada's decision
in United Taxi Drivers makes it clear that a narrow interpretation of such powers
would have served to have frustrated the objectives of the new legislation.
Accordingly, the question now becomes whether municipalities will exercise their
powers cautiously or whether they will seek to push the envelope and potentially
risk having the judicial pendulum swing the other way by forcing the courts to react
in an interventionist manner in order to reign in the scope of the general grants of
power.
Acknowledgment
This article was published in (2004), 1 Digest of Municipal & Planning Law (2d) (April
2004), No. 16 and is reproduced with the kind permission of Carswell.
: :ODMA \PCDOCS\DOCS\ 1659265\ 1
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United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City)
Page 1 of 8
United Taxi Drivers' Fellowship of Southern Alberta
v. Calgary (City)
City of Calgary Appellant
v.
United Taxi Drivers' Fellowship of Southern Alberta,
Rashpal Singh Gosal, Haringer Singh Dhesi,
Aero Cab Ltd. and Air Linker Cab Ltd. Respondents
and
Attorney General of Alberta Intervener
Indexed as: United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City)
Neutral citation: 2004 SCC 19.
File No.: 29321.
2003: December 8; 2004: March 25.
Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps
and Fish JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA
Municipal law - Statutes - Interpretation - Municipal bylaw regulating taxi industry by
stipulating licence requirements and freezing number of licences - Proper approach to
interpretation of statutes empowering municipalities - Whether bylaw ultra vires municipality
under its governing legislation - Municipal Government Act, SA 1994, c. M-26-1.
Administrative law - Judicial review - Standard of review applicable to decision of
municipality delineating its jurisdiction.
The City of Calgary regulates its taxi industry by virtue of the Taxi Business Bylaw No. 91/77
which requires that all taxis have a taxi plate licence. In 1993, the Bylaw froze the number of
taxi plate licences issued. The following year, the provincial government enacted a new
Municipal Government Act. The respondents challenged the validity of the freeze on the
issuance of taxi plate licences on the basis that the freeze is ultra vires the City under its
governing legislation, the Municipal Government Act. The trial judge held that the City had
authority under the new Act to limit the number of tax.i plate licences. A majority of the Court of
Appeal reversed that decision.
Held: The appeal should be allowed.
The City of Calgary was authorized under the Municipal Government Act to enact the bylaw
and to limit the number of taxi plate licences. Municipalities must always be correct in
delineating their jurisdiction. Such questions will always be subject to a standard of review of
correctness.
The evolution of the municipality has produced a shift in the proper approach to interpreting
statutes that empower municipalities. A broad and purposive approach to the interpretation of
municipal legislation reflects the true nature of modern municipalities which require greater
flexibility in fulfilling their statutory purposes and is consistent with the Court's approach to
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United Taxi Drivers' Fellowship of South em Alberta v. Calgary (City)
Page 2 of8
statutory interpretation generally. The Municipal Government Act reflects the modern method of
drafting municipal legislation which must be construed using this broad and purposive
approach.
Under the Municipal Government Act the City still has the power to limit the issuance of taxi
plate licences. There is no indication in the Act that the legislature intended to remove the
municipality's power to limit the number of taxi plate licences. To the contrary, s. 9(b) indicates
that the legislature sought to enhance the City's powers under the Act. Further, the
respondents' narrow interpretation cannot be reconciled with the language of the Act Section 7
which empowers municipalities to pass by-laws respecting business must be read with s. 8 of
the Act illustrating some of the broad powers exercisable by a municipality. The power to limit
the number of licences could fall under either s. 8(a), the power to regulate, or s. 8(c), the power
to provide for a system of licences. Thus, the City has the power under the Act to pass bylaws
limiting the number of taxi plate licences.
Cases Cited
Referred to: Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R 342, 2000 SCC 13;
Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; Bell ExpressVu Limited
Partnership v. Rex, [2002] 2 S.C.R 559, 2002 SCC 42; Merritt v. City of Toronto (1895),
22 OAR 205.
Statutes and Regulations Cited
Alberta Bill of Rights, RSA 2000, c. A-14, s. 1.
Canadian Charter of Rights and Freedoms, ss. 6, 7, 15.
Cities Act, 8.S. 2002, c. C-11.1.
City of Calgary Bylaw No. 91/77, Taxi Business, ss. 7(1), 9.1(a), (b) [am. 23M93], 9.2(a), (b),
9.3(a).
Gaming and Liquor Act, RS.A. 2000, c. G-1, s. 37(1 )(d).
Interpretation Act, RS.A. 2000, c. 1-8, s. 10.
Municipal Act, S.M. 1996, c. 58, C.C.8.M. c. M225.
Municipal Act, RS.Y. 2002, c. 154.
Municipal Act, 2001, S.O. 2001, c. 25.
Municipal Government Act, R8.A. 1980, c. M-26, ss. 234(1) [am. 1991, c. 23, s. 3(13)], (2)(a)
[idem], (b) [idem], 8.
Municipal Government Act, SA 1994, c. M-26.1 [now R8.A. 2000, c. M-26], ss. 3, 7(a), (d),
(e), 7, 8, 9, 70-75, 715.
Municipal Government Act, S.N.S. 1998, c. 18.
Wildlife Act, RS.A. 2000, c. W-10, s.13(1)(a).
Authors Cited
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Oxford English Dictionary, vol. XIII, 2nd ed. Oxford: Clarendon Press, 1989, "regulate".
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
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Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, ant.:
Butterworths, 2002.
APPEAL from a judgment of the Alberta Court of Appeal, [2002] 8 W.w.R 51, 3 Alta. L.R
(4th) 211, 303 A.R. 249, 94 C.R.R (2d) 290, 30 M.P.L.R (3d) 155, [2002] A.J. No. 694 (QL),
2002 ABCA 131, reversing a judgment of the Court of
Queen's Bench (1998),60 Alta. L.R (3d) 165,217 A.R. 1,45 M.P.L.R (2d) 16, [1998] A.J.
No. 1478 (QL), 1998 ABQB 184. Appeal allowed.
Leila J. Gosselin, Brand R. Inlow, Q.C., and R. Shawn Swinn, for the appellant.
Dale Gibson and Sandra Anderson, for the respondents United Taxi Drivers' Fellowship of
Southern Alberta, Rashpal Singh Gosal and Haringer Singh Dhesi.
No one appeared for the respondent Aero Cab Ltd.
Gabor I. Zinner, for the respondent Air Linker Cab Ltd.
Lome Merryweather, for the intervener.
The judgment of the Court was delivered by
BASTARACHE J. --
I. Overview
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1 The City of Calgary (the City) regulates its taxi industry by virtue of the Taxi Business Bylaw
No. 91/77 (the bylaw), which sets out several licensing requirements. Among them is a
requirement that all taxi vehicles have a taxi plate licence. In 1986, the City's Taxi Commission
adopted a restricted entry system for the taxi business to increase efficiency and stability, and
accordingly froze the number of taxi plate licences. The freeze was continued in 1993 under s.
9.1 of the bylaw. Other sections of the bylaw permitted the transfer of licences and the creation
of a lottery system to distribute revoked or relinquished licences. The following year, the
provincial government enacted a new Municipal Government Act, S.A. 1994, c. M-26.1 (now
RS.A. 2000, c. M-26). Section 715 of the new Act deemed the existing bylaw to have the same
effect as if it had been passed under the new Act.
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2 The respondents, the United Taxi Drivers' Fellowship of Southern Alberta, Rashpal Singh
Gosal, Haringer Singh Dhesi, Aero Cab Ltd. and Air Linker Cab Ltd., challenged the validity of
the freeze and the lottery process. The respondents sought a declaration that the City's actions
were: ultra vires the City's governing legislation, the Municipal Government Act; a violation of
the common law rule prohibiting municipalities from enacting discriminatory legislation; and an
unconstitutional violation of their mobility rights, their right to liberty and their right to be free
from discrimination as guaranteed by ss. 6, 7 and 15 of the Canadian Charter of Rights and
Freedoms. The only issue before this Court is whether the City's freeze on the issuance of taxi
plate licences was ultra vires the City under the Municipal Government Act.
3 The trial judge concluded that the City had the authority under the Municipal Government
Act to limit the number of taxi plate licences: (1998), 60 Alta. L.R (3d) 165, 1998 ABQB 184.
The majority of the Court of Appeal disagreed: [2002] 8 W.w.R 51,2002 ABCA 131. Wittmann
JA, writing for the majority, concluded that while the old Municipal Government Act expressly
granted the City the power to limit the number of taxi plate licences, the new Act did not.
O'Leary J.A., in dissent, held that the new Municipal Government Act expressly and impliedly
authorized the limit on the issuance of taxi plate licences.
II. Relevant Statutory Provision~
4 City of Calgary Bylaw No. 91/77, Taxi Business
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7. (1 )The Commission may limit the number of taxi licenses, which may be issued in any
one-license period.
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9.1 (a)The prohibition on the issuance of any new taxi licenses for the operation of a regular
class taxi instituted by the Taxi Commission as of February 6, 1986, and continued by the Taxi
Commission up to the date of the passage of this Bylaw, is hereby continued and the Taxi
Commission shall issue no new licenses for the operation of a regular class taxi but only renew
to licensees, in accordance with the Taxi Business Bylaw, such regular class taxi licenses as
were issued to such licensees for the previous license year.
(b )Notwithstanding subsection (a) the Taxi Commission may issue licences in accordance with
the lottery provisions described in Section 9(28) ....
9.2 (a)"immediate family member" means the spouse, siblings or children of the taxi
licensee.
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(b )Notwithstanding section 9(15) a taxi license held by a deceased taxi licensee shall be
capable of being transferred to the estate of the deceased licensee, or to an immediate family
member of the deceased, if the transfer occurs without remuneration from the estate of the
deceased to the transferee.
9.3 (a) The licensee of a taxi license shall not transfer or otherwise dispose of a taxi license
unless:
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(1 )the licensee does so in accordance with this Bylaw and the regulations; and
(2) the licensee pays the license transfer fee as set out in this Bylaw.
Municipal Government Act, R.SA 1980, c. M-26
234 (1) A council may pass by-laws licensing, regulating and controlling the taxi and
limousine business.
(2)Without restricting the generality of the foregoing a council may pass by-laws to
(a)establish and specify the rates or fares that may be charged for the hire of taxis and
limousines;
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(b) limit the number of taxi and limousine licences that may be issued in the municipality
having regard to its population or the area to be served in it or by any other means the council
considers to be just and equitable;
(8) A council, by by-law, may establish a commission to be known as the taxi commission
(a) which shall be composed of the number of resident electors the council selects including,
if it seems desirable, any members of councilor officials of the municipality who are considered
appropriate, and
(b) which may exercise any power or make any decisions which the council may make
pursuant to this section as the by-law provides.
Municipal Government Act, SA 1994, c. M-26.1
3 The purposes of a municipality are
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(a) to provide good government,
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(b) to provide services, facilities or other things that, in the opinion of council, are necessary
or desirable for all or a part of the municipality, and
(c) to develop and maintain safe and viable communities.
7 A council may pass bylaws for municipal purposes respecting the following matters:
(a)the safety, health and welfare of people and the protection of people and property;
(d) transport and transportation systems;
(e) businesses, business activities and persons engaged in business; ...
8 Without restricting section 7, a council may in a bylaw passed under this Division
(a) regulate or prohibit;
(b) deal with any development, activity, industry, business or thing in different ways, divide
each of them into classes and deal with each class in different ways;
(c) provide for a system of licences, permits or approvals, including ...:
(iii) prohibiting any development, activity, industry, business or thing until a licence, permit or
approval has been granted;
(iv) providing that terms and conditions may be imposed on any licence, permit or approval,
the nature of the terms and conditions and who may impose them;
(v) setting out the conditions that must be met before a licence, permit or approval is granted
or renewed, the nature of the conditions and who may impose them;
(vi) providing for the duration of licences, permits and
approvals and their suspension or cancellation for failure to comply with a term or condition of
the bylaw or for any other reason specified in the bylaw;
9 The power to pass bylaws under this Division is stated in general terms to
(a) give broad authority to councils and to respect their right to govern municipalities in
whatever way the councils consider appropriate, within the jurisdiction given to them under this
or any other enactment, and
(b) enhance the ability of councils to respond to present and future issues in their
municipalities.
715 A bylaw passed by a council under the former Municipal Government Act ... continues
with the same effect as if it had been passed under this Act.
III. Analysis
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A. The Standard of Review
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5 The only question in this case is whether the freeze on the issuance of taxi plate licences
was ultra vires the City under the Municipal Government Act. Municipalities do not possess any
greater institutional competence or expertise than the courts in delineating their jurisdiction.
Such a question will always be reviewed on a standard of correctness: Nanaimo (City) v. Rascal
Trucking Ltd.. [2000] 1 S.C.R. 342,2000 SCC 13, at para. 29. There is no need to engage in
the pragmatic and functional approach in a review for vires; such an inquiry is only required
where a municipality's adjudicative or policy-making function is being exercised.
B. The Proper Approach to the Interpretation of Municipal Powers
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6 The evolution of the modern municipality has produced a shift in the proper approach to the
interpretation of statutes empowering municipalities. This notable shift in the nature of
municipalities was acknowledged by McLachlin J. (as she then was) in Shell Canada Products
Ltd. v. Vancouver (CitV), [1994] 1 S.C.R. 231, at pp. 244-45. The "benevolent" and "strict"
construction dichotomy has been set aside, and a broad and purposive approach to the
interpretation of municipal powers has been embraced: Nanaimo, supra, at para. 18. This
interpretive approach has evolved concomitantly with the modern method of drafting municipal
legislation. Several provinces have moved away from the practice of granting municipalities
specific powers in particular subject areas, choosing instead to confer them broad authority over
generally defined matters: The Municipal Act, S.M. 1996, c. 58, C.C.S.M. c. M225; Municipal
Government Act, S.N.S. 1998, c. 18; Municipal Act, R.S.Y. 2002, c. 154; Municipal Act, 2001,
S.D. 2001, c. 25; The Cities Act, S.S. 2002, c. C-11.1. This shift in legislative drafting reflects
the true nature of modern municipalities which require greater flexibility in fulfilling their statutory
purposes: Shell Canada, at pp. 238 and 245.
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7 Alberta's Municipal Government Act follows the modern method of drafting municipal
legislation. The legislature's intention to enhance the powers of its municipalities by drafting the
bylaw passing provisions of the Act in broad and general terms is expressly stated in s. 9.
Accordingly, to determine whether a municipality is authorized to exercise a certain power, such
as limiting the issuance of taxi plate licences, the provisions of the Act must be construed in a
broad and purposive manner.
8 A broad and purposive approach to the interpretation of municipal legislation is also
consistent with this Court's approach to statutory interpretation generally. The contextual
approach requires "the words of an Act ... to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act,
and the intention of the legislature": EA Driedger, Construction of Statutes (2nd ed. 1983), at p.
87; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26.
This approach is also consistent with s. 10 of Alberta's Interpretation Act, R.S.A. 2000, c. 1-8,
which provides that every provincial enactment must be given a fair, large and liberal
construction and interpretation that best ensures the attainment of its objects.
C. The City's Power to Limit the Number of Licences
9 The respondents argue that the City does not have the power to limit the number of taxi
plate licences under the Act. They submit that the authority to regulate has never implied
numerical limits and that ss. 7 and 8 of the current Municipal Government Act, unlike s. 234 of
the previous Municipal Government Act, neither expressly nor impliedly grant a municipality the
power to limit the number of taxi plate licences. The respondents argue that while the Act
expands the "matters" over which municipalities may enact bylaws under s. 7, the Act limits the
"powers" exercisable by municipalities to those expressly specified. As the power to limit the
number of taxi plate licences is not expressly specified in s. 8, the respondents allege it has
been abolished.
10 In my respectful opinion, the respondents' argument must fail.
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11 It is well established that the legislature is presumed not to alter the law by implication:
Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 395. Rather, where it
intends to depart from prevailing law, the legislature will do so expressly. Here, there is no
indication in the Act that the legislature intended to remove the municipality's power to limit the
number of taxi plate licences. To the contrary, s. 9(b) indicates that the legislature did not intend
to curtail the powers exercised by municipalities but rather sought to enhance those powers
under the new Act subject to the limitations in ss. 70-75, which do not preclude limiting the
number of taxi licences. It is inconceivable, in my view, that the legislature would have intended
to indirectly limit the ability of municipalities to regulate the taxi industry according to a practice
dating 15 years and to adopt the restrictive approach defined in Merritt v. City of Toronto (1895),
22 OAR 205, at pp. 207-8, simply by changing its method of drafting legislation. The new
method was in fact specifically designed to avoid the need for listing specific matters and
powers. Accordingly, a provision explicitly limiting the number of licences such as s. 13(1 )(a) of
the Wildlife Act, RS.A. 2000, c. W-10, and s. 37(1)(d) of the Gaming and Liquor Act, RS.A.
2000, c. G-1, is unnecessary.
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12 The respondents' narrow interpretation cannot be reconciled with the language of the Act.
According to the respondents, the broad authority conferred on municipalities only applies to s.
7 which deals exclusively with matters and not to s. 8 which deals exclusively with powers. I
disagree. First, s. 9 clearly states that the power to pass bylaws is stated in general terms to
"give broad authority" in respect of matters attributed to them. Second, to accept this
matter/power distinction renders the opening words of s. 8, "[w]ithout restricting section T',
useless. Rather, ss. 7 and 8 must be read together, as one is without restriction to the other.
Section 8 is supplementary to s. 7 and speaks of the "broad authority" mentioned in s. 9. On
this reading of ss. 7, 8 and 9 the respondents' interpretation must be rejected because their
narrow and literal approach to s. 8 effectively restricts s. 7, which grants the power to regulate
businesses.
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13 Applying a broad and purposive interpretation, ss. 7 and 8 grant the City the power to
pass bylaws limiting the number of taxi plate licences. As discussed, s. 8 supplements s. 7 by
illustrating some of the broad powers exercisable by a municipality. Here the power to limit the
number of licences could fall under either s. 8(a), the power to regulate, or s. 8(c), the power to
provide for a system of licences. To "regulate", as defined in the Oxford English Dictionary (2nd.
ed. 1989), vol. XIII, is "subject to ... restrictions". Thus, as O'Leary JA in dissent aptly stated,
the "jurisdiction to regulate the taxi business necessarily implies the authority to limit the number
of TPLs [taxi plate licences] issued": para. 202. This accords with the legislative history.
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14 The power to limit the issuance of licences also falls under the power to provide for a
system of licences under s. 8(c). Sections 8(c)(i) through (vi) represent some of the types of
bylaws that provide for a system of licences. The use of the word "including" indicates that the
list is non-exhaustive; therefore, any type of bylaw that is consistent with the list is authorized.
There is clearly no room for the application of the expressio unius est exclusio alterius principle
advocated by the respondents. Common to each of the provisions is the power to impose
limitations on licences such as setting out the conditions that must be satisfied before a licence
is granted or renewed. The bylaw limiting the number of taxi plate licences is consistent with the
examples provided as it also imposes a specific limit on a licensed activity.
15 The respondents have also argued that the bylaw is inconsistent with the right to
enjoyment of property protected by the Alberta Bill of Rights, RS.A. 2000, c. A-14, s. 1, and
with s. 3 of the Municipal Government Act which provides that the purposes of municipalities
are good governance and the development and maintenance of safe and viable communities.
Both arguments relate to the effects of the bylaw which the respondents allege have
transformed taxi licences into an expensive commodity benefiting a small group of brokers.
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16 As noted earlier in these reasons, there is no challenge before this Court to the legislation
based on the Charter and no record to support the allegation now being made that the Alberta
Bill of Rights has been breached. This Court in Bell ExpressVu, supra, at para. 62, held that
absent any challenge on constitutional grounds, courts are bound to interpret and apply statutes
in accordance with the sovereign intent of the legislature. In this case, I find no ambiguity in the
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I United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City)
Page 8 of8
t
legislation that would bring me to consider whether the Act is reflective of Charter values and no
reason to question the authority of the Council for the City of Calgary to decide the best
interests of its citizens in the regulation of the taxi industry. Here, as in Bell ExpressVu, some
citizens are affected by the restrictions imposed, but this has no bearing on the jurisdiction of
the municipal government to regulate.
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17 Accordingly, the City of Calgary was authorized under the Act to enact Bylaw 91/77.
IV. Conclusion
18 The appeal is allowed with costs throughout.
Appeal allowed with costs.
Solicitor for the appellant: City of Calgary Law Department, Calgary.
Solicitors for the respondents United Taxi Drivers' Fellowship of Southern Alberta, Rashpal
Singh Gosal and Haringer Singh Dhesi: Dale Gibson & Associates, Edmonton.
Solicitors for the respondent Air Linker Cab Ltd.: Zinner & Sara, Calgary.
Solicitor for the intervener: Attorney General of Alberta, Edmonton.
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The official versions of decisions and reasons for decision by the Supreme
Court of Canada are published in the Supreme Court Reports (S.C.R.). This site is
prepared and published by LexUM in partnership with Supreme Court of Canada.
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CONGREGATION DES TEMOINS DE JEHOVAH DE ST- JEROME-
LAFONTAINE v. LAFONTAINE (VILLAGE)
Supreme Court of Canada
McLachlin C.J., Iacobucci, Major, Bastarache, Binnie, Arbour,
LeBel, Deschamps, Fish JJ.
Heard - January 19, 2004
Judgment - June 30, 2004
No. 29507
Zoning by-laws - Consideration - Procedural fairness - Village having
breached duty of procedural fairness to Jehovah's Witnesses congregation
by not providing reasons for denial of rezoning applications.
Charter of Rights and Freedoms - Freedom of religion - Whether refusal by
municipality to amend zoning by-law to allow religious group to build place of
worship contravening congregation's right to freedom of religion under s.
2(a) of Canadian Charter of Rights and Freedoms.
The Village of Lafontaine refused to amend its zoning by-law to allow the appellant
(a congregation of Jehovah's Witnesses) to build a place of worship on land the
congregation had bought in a zone where the construction of such a facility was not
permitted. The appellant challenged the constitutionality of the Village's refusal to
amend the zoning by-law as infringing on the appellant's Canadian Charler of
Rights and Freedoms s. 2(a) guarantee of freedom of religion.
The trial judge made a finding that suitable lots were available for the appellants to
purchase in regional community use zone, which was the zone where places of
worship were permitted. He found the by-law not to be prohibitive. The trial judge
found the purpose of the by-law to be to organize the municipality's territory, to
ensure order was maintained and to ensure that citizen's best interests were taken
into account and, as such, found that the zoning by-law did not infringe on the
appellants' religious freedom.
The Village was successful on appeal where the Quebec Court of Appeal
determined that the trial judge had erred in finding that there were lots available for
sale in the regional community use zone. The majority of the Quebec Court of
Appeal dismissed the appeal, however, on the ground that the Village was not
responsible for the unavailability of land and was under no positive obligations to
preserve freedom of religion. The congregation appealed to the Supreme Court of
Canada.
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Held: The appeal was allowed.
A majority of the Supreme Court of Canada (5 to 4) found that public bodies, such
as municipalities, are bound by a duty of procedural fairness whose content
depends on five factors. The court enunciated the five factors as follows: (i) the
nature of the decision and the process by which it is reached; (ii) the nature of the
statutory scheme and the precise statutory provisions to which the municipality
operates; (iii) the importance of the decision to the affected individuals; (iv) the
legitimate expectations of the party challenging the decision; and (v) the nature of
the deference to be accorded to the municipality. Having regard to these factors,
the Village in this case had breached its duty of procedural fairness in refusing to
justify its decision to refuse to amend the zoning by-law on the second and third
applications submitted by the congregation in view of the absence of reasons for
the municipality's denials. As such, the Village had acted in an arbitrary manner.
The matter was to be remitted to the Village for reconsideration of the
congregations' rezoning application.
The minority in dissent found that, in the absence of a palpable and overriding
error, the Quebec Court of Appeal should not have reviewed the trial judge's finding
about lot availability. Furthermore, neither the purpose nor the effect of the zoning
by-law was to infringe on the congregation's freedom of religion. Additionally, the
minority judgment considered the hypothetical situation that no lots were available
in the regional community use zone, and found that, in this case, the Village's
refusal would constitute an infringement of freedom of religion. The infringement of
the right to freedom of religion under s. 2(a) would arise from the Village's refusal to
adapt the by-law to evolving community needs and not from the existence of the
zoning by-law. With respect to the administrative law issue, the minority found that
reasons for the Village's refusal would have provided the required transparency and
appearance of procedural fairness.
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Congregation des temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Village)
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Congregation des temoins de Jehovah de 5t-
Jerome-Lafontaine v. Lafontaine (Village)
Congregation des temoins de Jehovah de 5t-Jerome-Lafontaine,
Roberto Biagioni and Denis Leveille Appellants
v.
Municipality of the village of Lafontaine, Harold Larente
and Attorney General of Quebec Respondents
and
Seventh-Day Adventist Church in Canada, Evangelical Fellowship of
Canada, and Canadian Civil Liberties Association lnterveners
Indexed as: Congregation des temoins de Jehovah de St-Jerome-Lafontaine v.
Lafontaine (Village)
Neutral citation: 2004 SCC 48.
File No.: 29507.
2004: January 19; 2004: June 30.
Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps
and Fish JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Municipal law -- Procedural fairness -- Refusal by municipality to amend zoning by-law to
affow religious group to build place of worship on land it purchased -- Whether municipality
required to provide reasons for its decision.
Constitutional law -- Charter of Rights-- Freedom of religion-- Whether municipality's decision
not to amend its zoning by-law to affow religious group to build place of worship on land it
purchased infringes freedom of religion -- Canadian Charter of Rights and Freedoms, s. 2(a).
The Jehovah's Witnesses were looking for a suitable parcel of land on which to establish a
place of worship in the respondent municipality. The zoning by-law allowed places of worship to
be built in a regional community use zone. As they felt that no land was available in this zone,
the Jehovah's Witnesses made a conditional offer to purchase a lot located in a residential zone
and applied for an amendment to the zoning by-law. The amendment was refused on the
ground that this would have resulted in an increase in the tax burden for ratepayers. The
Jehovah's Witnesses purchased another lot in a commercial use zone and applied twice for a
zoning change, but the municipality categorically refused to grant their applications, giving no
reasons for its refusal. The Jehovah's Witnesses instituted a proceeding for mandamus,
alleging that the municipality's refusal to amend its zoning by-law violated their freedom of
religion under s. 2(a) of the Canadian Charter of Rights and Freedoms. They also challenged
the constitutionality of the provisions of the Act respecting land use planning and development
relating to the process for approving amendments to zoning by-laws by way of referendum,
contending that such a public consultation would violate their freedom of religion. The trial judge
dismissed the application after finding that lots were still available in the only zone in which
places of worship could be built. The Court of Appeal set aside this finding of fact, but the
majority dismissed the appeal on the ground that the municipality was not responsible for the
unavailability of land and was under no positive obligation to preserve freedom of religion.
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Congregation des temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Village)
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Held (Major, Bastarache, LeBel and Deschamps JJ. dissenting): The appeal should be
allowed.
Per McLachlin C.J. and Iacobucci, Binnie, Arbour and Fish JJ.: In weighing the merits of the
Congregation's rezoning requests, the Municipality was discharging a duty delegated to it by the
Legislature. The Municipality was bound to exercise the powers conferred upon it fairly, in good
faith and with a view to the public interest. The Municipality did not fulfill its duty of procedural
fairness in responding to the second and third rezoning applications brought by the
Congregation because the Municipality gave no reasons for its denial.
When making an administrative decision affecting individual rights, privileges or interests, a
public body like a municipality is bound by a duty of procedural fairness whose content varies
according to five factors. In this case, a review of these factors indicate that the Municipality's
duty of procedural fairness to the Congregation was heightened by the aggravated potential for
abuse of discretionary statutory authority, the absence of an appeal provision, the expectations
established by the Municipality's own conduct in responding to the Congregation's first rezoning
application, and the importance of the decision to the Congregation, impacting as it did on the
right of the Congregation to practice the religion of its choice. Little deference is due to the
Municipality's decisions concerning the second and third applications for rezoning because
there is no record to indicate that the Municipality has actually engaged its expertise in
evaluating the applications. These factors suggest that the Municipality was required to carefully
evaluate the Congregation's applications for a zoning variance and to give reasons for refusing
them.
In refusing to justify its decisions, the Municipality breached its duty of procedural fairness. It
acted in a manner that was arbitrary and straddled the boundary separating good from bad
faith. The matter should be remitted to the Municipality for reconsideration of the Congregation's
rezoning application.
Bastarache, LeBel and Deschamps JJ.: In the absence of a palpable and overriding error,
the Court of Appeal could not review the trial judge's finding of fact regarding the availability of a
lot. This finding, which was based on an assessment of witnesses' credibility, should be
restored and it justifies dismissing the Jehovah's Witnesses's application, since it precludes a
conclusion that their freedom of religion was infringed.
Neither the purpose nor the effect of the zoning by-law has been to infringe the freedom of
religion of the Jehovah's Witnesses. First, the zoning by-law cannot be considered prohibitive
since it does not prohibit the "place of worship" use everywhere within the municipality's
boundaries. Second, freedom of religion is a fundamental right that imposes on the state and
public authorities, in relation to all religions and citizens, a duty of religious neutrality. For that
reason, the municipality is required to structure its by-laws in such a way as to avoid placing
unnecessary obstacles in the way of the exercise of religious freedoms, although it does not
have to provide the Jehovah's Witnesses with access to a lot that corresponds better to their
selection criteria. Furthermore, the rights protected by s. 2(a) are not absolute. First, freedom of
religion is limited by the rights and freedoms of others. The diversity of opinions and
convictions requires mutual tolerance and respect for others. Second, although the very nature
of the zoning by-law means that the Jehovah's Witnesses do not have absolute freedom to
choose the location of their place of worship, this limit is necessary to protect safety and order,
and ensure proper land use, in the municipality and does not constitute a violation of freedom of
religion. Finally, churches and their members are not exempted from making any effort, or even
sacrifice, inter alia in the exercise of their freedom of worship. Since at least one lot remains
available in the regional community use zone, the Jehovah's Witnesses must comply with the
municipality's zoning by-law and build their place of worship in the zone where this use is
authorized.
If no land were available in the regional community use zone, this would constitute an
infringement of freedom of religion under s. 2(a) of the Charter, because the construction of a
place of worship, which is an integral part of this freedom, would then be impossible within the
boundaries of the municipality. This infringement would result not from the existence of the
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Congregation des temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Village)
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zoning by-law, but from the refusal to adapt it to evolving community needs. Even though, as a
general rule, the Charter does not require the state to take positive steps in support of the
exercise of the fundamental freedoms provided for in s. 2(a), and even though the state must
refrain from implementing measures that could favour one religion over another, this would be
an exceptional situation in which freedom of religion could have no real meaning unless the
public authorities took positive action. The municipality would therefore have to amend the by-
law.
If there had been a violation of the Charter, the only possible remedy that would have been
appropriate was an order to the municipality to review its zoning by-law so as to make land
available to the appellants on which they could build their place of worship. It would not have
been appropriate to suspend the operation of the Act respecting land use planning and
development and its process for approval by way of referendum, as it cannot be assumed that
this democratic process, which is consistent with the nature of municipal government in
Canada, in any way infringes the freedom of religion guaranteed by s. 2(a) of the Charter.
Concerning the administrative law issue, a more precise and rigorous justification for the
municipality's repeated refusals to amend its zoning by-law would not only have given the
Jehovah's Witnesses a better understanding of the municipality's decision, it also would have
given its decision-making process the required transparency and the appearance of procedural
fairness.
Per Major J.: There is agreement with the result in the judgment of LeBel J., but reasons
restricted to his conclusions on the findings of fact of the trial judge and the absence of any
infringement to freedom of religion.
Cases Cited
By McLachlin C.J.
Referred to: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Martineau v.
Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners of Police, [1979J 1 S.C.R 311; Baker v. Canada (Minister of
Citizenship and Immigration), [1999J 2 S.C.R 817; Godbout v. Longueuil (City), [1997] 3 S.C.R
844; Toronto (City) v. Trustees of the Roman Catholic Separate Schools of Toronto, [1926] A.C.
81; Kuchma v. Rural Municipality of Tache, [1945] S.C.R. 234; Norfolk v. Roberts (1915), 50
S.C.R 283; In re Glover and Sam Kee (1914), 20 B.C.R 219; Re Howard and City of Toronto,
[1928J 1 D.L.R 952; Roncarelli v. Duplessis, [1959J S.C.R. 121; Kane v. Board of Governors of
the University of British Columbia, (1980] 1 S.C.R 1105; Bendahmane v. Canada (Minister of
Employment and Immigration), [1989J 3 F.C. 16; Qi v. Canada (Minister of Citizenship and
Immigration) (1995), 33 Imm. L.R (2d) 57; Mercier-Neron v. Canada (Ministre de la Sante
nation ale et du bien-etre social) (1995), 98 F.T.R 36; Prud'homrne v. Prud'hornme, [2002J 4
S.C.R 663, 2002 SCC 85; Whiten v. Pilot Insurance Co., [2002) 1 S.C.R. 595, 2002 SCC 18;
Young v. Young, [1993] 4 S.C.R. 3.
By LeBel J. (dissenting)
Saint-Michel-Archange (Municipalite de) v. 2419-6388 Quebec Inc., (1992] RJ.Q. 875;
Orford (Canton) v. Fonds de placement Hamel inc., [1995J Q.J. No. 2260 (QL); R. v. Big M Drug
Mart Ltd., [198511 S.C.R. 295; R. v. Edwards Books and Art Ltd.. [1986J 2 S.C.R. 713; Ross v.
New Brunswick School District No. 15, [1996J 1 S.C.R. 825; Trinity Western University v. British
Columbia College of Teachers, [2001] 1 S.C.R 772, 2001 SCC 31; Dunmore v. Ontario
(Attorney General), [2001] 3 S.C.R 1016, 2001 SCC 94; Delisle v. Canada (Deputy Attorney
General), [1999J 2 S.C.R 989; Haig v. Canada, [1993J 2 S.C.R 995; Bakerv. Canada (Minister
of Citizenship and Immigration)Jm99) 2~C.RJi17.
Statutes and Regulations Cited
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Congregation des temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Village)
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Act respecting Administrative Justice, RS.Q., c. J-3, ss. 1 to 8.
Act respecting Land Use Planning and Development, RS.Q., c. A-19.1, 5S. 113(3), 123 to 133.
Canadian Charter of Rights and Freedoms, ss. 2, 27.
Charter of Human Rights and Freedoms, RS.Q., c. C-12, s. 3.
Cities and Towns Act, RS.Q., c. C-19, s. 410.
Constitution Act, 1867, s. 93
Supreme Court Act, RS.C. 1985, c. S-26, s. 47.
Zoning By~Law No. 362 for village de Lafontaine, adopted April 2, 1991, came into force on May
18, 1991, ss. 2.2.3.3, 2.2.5.3.
Authors Cited
L'Heureux, Jacques. Droit municipal quebecois, t. II. Montreal: Wilson & Lafteur/SOREJ, 1984.
Ogilvie, M.H. Religious Institutions and the Law in Canada, 2nd ed. Toronto: Irwin Law, 2003.
Woehrling, Jose. "L'obligation d'accommodement raisonnable et I'adaptation de la societe it la
diversite religieuse" (1998), 43 McGill L.J. 325.
APPEAL from a judgment of the Quebec Court of Appeal, [2002] RJ.Q. 3015, [2002] Q.J.
No. 4728 (QL), affirming a judgment of the Superior Court, J.E. 99-333. Appeal allowed, Major,
Bastarache, LeBel and Deschamps JJ. dissenting.
Andre Carbonneau and David M. Gnam, for the appellants.
Michel Lalande and Jean-Pierre St-Amour, for the respondents Municipalite du village de
Lafontaine and Harold Larente.
Mario Normandin, for the respondent the Attorney General of Quebec.
Gerald D. Chipeur and Ivan Bernardo, for the interveners the Seventh-Day Adventist Church
in Canada and the Evangelical Fellowship of Canada.
Andrew K. Lokan and Megan Shortreed, for the intervener the Canadian Civil Liberties
Association.
The judgment of McLachlin C.J. and Iacobucci, Binnie, Arbour and Fish JJ. was delivered by
THE CHIEF JUSTICE --
I. Summary
1 The issue in this case is whether the municipality of the village of Lafontaine (the
"Municipality") lawfully denied an application for rezoning to permit the Congregation des
temoins de Jehovah de St-Jerome-Lafontaine (the "Congregation") to build a place of worship.
Unlike my colleague Justice LeBel, I conclude the Municipality did not. Although the
Municipality's first denial of permission to rezone complied with the law, the second and third did
not, in my view, because the Municipality gave no reasons for its denial, instead taking the
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Congregation des temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Village)
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position that it enjoyed absolute discretion to refuse the zoning variance with no explanation to
the Congregation.
2 In weighing the merits of the Congregation's rezoning requests, the Municipality was
discharging a duty delegated to it by the Legislature. It was bound to exercise the powers
conferred upon it fairly, in good faith and with a view to the public interest. Here, on the facts as
found by the trial judge, the Municipality failed to do so. Accordingly, I would remit the matter to
the Municipality for reconsideration.
II. The Duty on the MuniciPality
3 A public body like a municipality is bound by a duty of procedural fairness when it makes an
administrative decision affecting individual rights, privileges or interests: Cardinal v. Director of
Kent Institution. [1985] 2 S.C.R. 643; Attorney General of Canada v. Inuit Tapirisat of Canada,
[1980] 2 S.C.R. 735; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602;
Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R.
311. The decision to deny the application for rezoning affected the Congregation's rights and
interests. There can thus be no question that the Municipality owed the Congregation a duty of
fairness.
4 At issue in this case is the content of this duty. More particularly and on the facts as found,
does the duty require the Municipality to give the Congregation reasons for refusing the
rezoning application? Or does it clothe the Municipality with absolute discretion to refuse the
Congregation's application?
5 The content of the duty of fairness on a public body varies according to five factors: (1) the
nature of the decision and the decision-making process employed by the public organ; (2) the
nature of the statutory scheme and the precise statutory provisions pursuant to which the public
body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate
expectations of the party challenging the decision; and (5) the nature of the deference accorded
to the body: Baker v. Canada (Minister of Citizenship and Immigration). [1999] 2 S.C.R. 817. In
my view and having regard to the facts and legislation in this appeal, these considerations
require the Municipality to articulate reasons for refusing the Congregation's second and third
rezoning applications.
6 The first factor -- the nature of the decision and the process by which it is reached --
merges administrative and political concerns. The decision to propose a draft by-law rezoning
municipal territory is made by an elected council accountable to its constituents in a manner
analogous to that in which Parliament and the provincial legislatures are accountable to their
own: Godbout v. Longueuil (City). [1997] 3 S.C.R. 844, at para. 51. This decision is moreover
tempered by the municipality's charge to act in the public interest: Toronto (City) v. Trustees of
the Roman Catholic Separate Schools of Toronto, [1926] A.C. 81 (H.L.), at p. 86. What is in the
public interest is a matter of discretion to be determined solely by the municipality. Provided the
municipality acts honestly and within the limits of its statutory powers, the reviewing court is not
to interfere with the municipal decision unless "good and sufficient reason be established":
Kuchma v. Rural Municipality of Tache, [1945] S.C.R. 234, at p. 243 (per Estey J.); see also
Norfolk v. Roberts (1915), 50 S.C.R. 283, at p. 293; In re Glover and Sam Kee (1914), 20
B.C.R. 219, at pp. 221-22 (S.C.); Re Howard and City of Toronto, [1928] 1 D.L.R. 952, at p. 965
(Ont. S.C. App. Div.).
7 However, the elected councillors cannot deny a rezoning application in an arbitrary manner.
Where the municipal council acts in an arbitrary fashion in the discharge of its public function,
"good and sufficient reason" exists to warrant intervention from the reviewing court in order to
remedy the proven misconduct. The need for judicial oversight of arbitrary municipal decision
making is only heightened by the aggravated potential for abuse of discretionary statutory
authority. As Rand J. has made clear in Roncare/li v. Duplessis, [1959] S.C.R. 121, at p. 140,
no discretion casts a net wide enough to shield an arbitrary or capricious municipal decision
from judicial review:
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In public regulation of this sort there is no such thing as absolute and untrammelled
"discretion", that is that action can be taken on any ground or for any reason that can be
suggested to the mind of the administrator; no legislative Act can, without express language, be
taken to contemplate an unlimited arbitrary power exercisable for any purpose, however
capricious or irrelevant, regardless of the nature or purpose of the statute.
8 The second factor is the statutory scheme and its provisions, in this case the Act respecting
Land Use Planning and Development, R.S.Q., c. A-19.1, which grants the Municipality authority
to consider a rezoning application. Even so, the absence of an appeal provision demands
greater municipal solicitude for fairness. Enhanced procedural protections "will be required
when no appeal procedure is provided within the statute, or when the decision is determinative
of the issue and further requests cannot be submitted": Baker, supra, at para. 24, per
L'Heureux-Dube J.
9 The third factor requires us to consider the importance of the decision to the Congregation.
The stringency of procedural protection is directly proportional to the importance of the decision
to the lives of those affected and the nature of its impact on them: Baker, supra, at para. 25; see
also Kane v. Board of Governors ofthe University of British Columbia, [1980] 1 S.C.R. 1105, at
p. 1113. Here, it becomes important that the municipal decision affects the Congregation's
practice of its religion. The right to freely adhere to a faith and to congregate with others in
doing so is of primary importance, as attested to by its protection in the Canadian Charter of
Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms.
10 The fourth factor -- the legitimate expectations of the Congregation -- also militates in
favour of heightened procedural protection. Where prior conduct creates for the claimant a
legitimate expectation that certain procedures will be followed as a matter of course, fairness
may require consistency: Baker, supra, at para. 26; see also Bendahmane v. Canada (Minister
of Employment and Immigration), [1989] 3 F.C. 16 (C.A.); Qi v. Canada (Minister of Citizenship
and Immigration) (1995), 33 Imm. L.R. (2d) 57 (F.C.T.D.); Mercier-Neron v. Canada (Ministre de
la Sante nationale et du Bien-etre social) (1995), 98 F.T.R. 36. Here, the Municipality followed
an involved process in responding to the Congregation's first rezoning application, in so doing
giving rise to the Congregation's legitimate expectation that future applications would be
thoroughly vetted and carefully considered.
11 The fifth factor -- the nature of the deference due to the decision maker -- calls upon the
reviewing court to acknowledge that the public body may be better positioned than the judiciary
in certain matters to render a decision, and to examine whether the decision in question falls
within this realm. Municipal decisions on rezoning fall within the sphere in which municipalities
have expertise beyond the capacity of the judiciary, thus warranting deference from reviewing
courts. However, this factor may not carry much weight where, as here on the second and third
applications for rezoning, there is no record to indicate that the Municipality has actually
engaged its expertise in evaluating the applications.
12 The five Baker factors suggest that the Municipality's duty of procedural fairness to the
Congregation required the Municipality to carefully evaluate the applications for a zoning
variance and to give reasons for refusing them. This conclusion is consistent with the Court's
recent decision in Prud'homme v. Prud'homme, [2002] 4 S.C.R. 663, 2002 SCC 85, at para. 23,
holding that municipal councillors must always explain and be prepared to defend their
decisions. It is also consistent with Baker, supra, where it was held, at para. 43 dealing with a
ministerial decision, that if an organ of the state has a duty to give reasons and refuses to
articulate reasons for exercising its discretionary authority in a particular fashion, the public
body may be deemed to have acted arbitrarily and violated its duty of procedural fairness.
13 Giving reasons for refusing to rezone in a case such as this serves the values of fair and
transparent decision making, reduces the chance of arbitrary or capricious decisions, and
cultivates the confidence of citizens in public officials. Sustained by both law and policy, I
conclude that the Municipality was bound to give reasons for refusing the Congregation's
second and third applications for rezoning. This duty applied to the first application, and was
complied with. If anything, the duty was stronger on the Congregation's second and third
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applications, where legitimate expectations of fair process had been established by the
Municipality itself.
III. Applying the Duty of Fairness to the Facts
14 Before considering the rezoning applications, it is necessary to deal with a preliminary
question: does the trial judge's finding that Mrs. Jolicoeur was willing to sell a P-3 property to
the Congregation resolve the matter and make it unnecessary to consider the Municipality's
treatment of the Congregation's application for rezoning, as LeBel J. concludes?
15 Like LeBel J., I accept the finding of fact that land was available in zone P-3. However,
this does not resolve the issue, in my view, because the Municipality's duty of procedural
fairness to the Congregation is not contingent upon the interactions of the Congregation with
third parties, namely Mrs. Jolicoeur. The Municipality's duty exists independent of the
Congregation's own conduct.
16 I therefore find it necessary to consider whether the Municipality fulfilled its duty of
procedural fairness in responding to the rezoning applications brought by the Congregation. In
my view, the answer is no.
17 The Congregation requested a zoning variance from the Municipality on three separate
occasions. On each occasion, the Municipality refused the request. The process by which the
Municipality refused the first request withstands judicial scrutiny. But the process followed to
respond to the second and third requests does not.
18 On March 4, 1992, after having concluded no land was available in P-3, the Congregation
entered into a purchase agreement for a parcel of land located at the intersection of 112th
Avenue and Maurice Boulevard, conditional upon obtaining rezoning approval. The parcel was
located in a residential zone, not a P-3 community zone where the construction of churches was
permitted. However, another P-3-zoned structure was already located in the area.
19 On May 12, 1992, the Municipality referred the request to its Comite consultatif
d'urbanisme for a recommendation. Realizing that places of worship normally enjoy exemption
from property taxes, the Comite commissioned a study from Marcel Belanger, then assistant
secretary-treasurer, on the financial impact upon city taxpayers of granting the Congregation's
request. Belanger reported back to the Comite on June 10, concluding that granting the
Congregation's zoning variance would result in increased property taxes for neighbouring
residents. On June 23, the Comite recommended that the Municipality deny the Congregation's
request for a zoning variance. On July 6 at a public meeting, the Municipality announced its final
decision to deny the request, supported by detailed reasons.
20 At the urging of the Mayor, the Congregation met with the Municipality's building inspector
the next day, July 7. The building inspector indicated on a map the location of P-3 zones in
which the Congregation could purchase land to build its place of worship. The building inspector
added that if no land were available for purchase in zone P-3, the Congregation would have to
reapply for a zoning variance. To this point, the Municipality's conduct cannot be faulted.
21 Following this advice, the Congregation renewed its search for available land in zone P-3.
Again its search turned up no available land in P-3 zones and the Congregation took its search
to other zones. It found a suitable lot in a commercial zone at 2373 Labelle Boulevard -- only
400 metres from another place of worship -- and entered into a conditional purchase
agreement. Still following the building inspector's earlier advice, the Congregation filed a second
request for a zoning variance.
22 The Congregation's accompanying letter, dated February 1, 1993, detailed its four-year-
long effort to build a place of worship in the Municipality and expressed its inability to find any
available land in zone P-3. It requested a zoning variance for the commercial-zoned property it
now proposed to acquire. The Congregation asked for an audience with the Municipality in
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order to personally present its construction plans.
23 Three days later, on February 4, the Municipality sent the Congregation a letter summarily
denying its request. It gave no reasons for this decision. The Municipality did not engage in an
evaluative process like the one it undertook in response to the Congregation's first request for a
zoning variance, nor indeed any evaluative process at all. The Municipality did not refer the
matter to its Comite. It did not study the financial impact of granting the zoning variance. And it
did not grant the Congregation the courtesy of meeting with its representatives to discuss the
Congregation's construction plans, which by then had been derailed for four years. The
Municipality contented itself with advising that lots in P-3 were available.
24 This advice was no substitute for a proper evaluation of the rezoning application and
accompanying reasons justifying the refusal. The Municipality knew that the Congregation
believed on the basis of two searches that no P-3 lots were available. Yet, it offered only the
general observation that lots were available without offering any direction. In fact, as the trial
judge found, land was available in P-3. But this is not the issue. The issue is whether, in these
circumstances, the Municipality's curt dismissal of the Congregation with the advice that land
was available in P-3 constitutes a sufficient justification of its refusal to grant the second
rezoning application to comply with the duty of fairness it owes the Congregation -- a duty
heightened by the Congregation's legitimate expectations. I conclude that it does not.
25 Had this second application been a mere request for reconsideration, one might have
understood the absence of evaluation and reasons. But this was not so. The Congregation's
second request concerned a different parcel of land, located in a commercial zone rather than a
residential zone, and situated near another place of worship. The findings of the Belanger study
on tax impact of granting a zoning variance and the accompanying analyses of the first
application were inapplicable to these new and different circumstances. A new evaluation was
required, together with an explanation. Neither was offered.
26 Having been told land was available in P-3 but not informed as to where, the
Congregation yet again renewed its search for land in P-3. It canvassed landowners in this
zone, but again concluded that no suitable properties were for sale. Armed with written
confirmation from P-3 property owners attesting to the unavailability of land in zone P-3, the
Congregation presented its third request to the Municipality for a zoning variance on May 31,
1993. The request related to the same property that had been the subject of the second
request. In a series of letters to the Municipality, the Congregation presented evidence of its
fruitless search to identify any available land in zone P-3.
27 The Municipality responded by letter, dated August 24, 1993. Again, it refused the
application for rezoning. Again, it offered no reasons. This time it did not even tell the
Congregation that land was available in zone P-3. The Municipality contented itself with
asserting -- erroneously -- that since the Legislature had conferred discretion upon it, the
Municipality was not required to offer any justification for refusing the Congregation's rezoning
application:
You have made a number of applications to amend the zoning by-law. The Legislature has
given the municipal council the responsibility for exercising this power, which is discretionary.
Upon careful consideration, the municipality of Lafontaine has decided not to take action in
respect of your applications. The municipal council of Lafontaine is not required to provide you
with a justification and we therefore have no intention of giving reasons for the council's
decision. [Emphasis added.]
28 Where, one asks, is the recognition that the Municipality must exercise its legislatively
conferred discretion in the public interest? Where is the recognition that the Municipality owed a
duty of fairness to the Congregation? The Congregation in making its second and third
applications was acting in good faith on the advice it had received from the municipal inspector
following the rejection of its first application. The Congregation offered evidence of good faith
searches for land in P-3 to no avail -- evidence the Municipality did not bother to comment on,
much less rebut.
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29 The Municipality's attitude was clear. The Congregation was welcome to find land in P-3
on its own. If it was unable to do so, the Municipality was neither prepared to accept an
application for rezoning nor justify its refusal. The letter effectively foreclosed any possibility that
the Municipality would assist the Congregation in its quest for land upon which to build its place
of worship. Not surprisingly, the Congregation concluded further applications would be fruitless
and commenced this litigation.
30 In refusing to justify its decision to deny the second and third applications for zoning
variances, the Municipality breached the duty of procedural fairness it owed to the Congregation
__ a duty heightened by the expectations established by the Municipality's own conduct and the
importance of the decision to the Congregation, impacting as it did on the right of the
Congregation to practise the religion of its choice. The Municipality acted in a manner that was
arbitrary and straddled the boundary separating good from bad faith. It follows that the second
and third refusals do not comply with the law and must be set aside.
IV. Remedy
31 I would allow the appeal, set aside the second and third rezoning refusals, and remit the
matter to the Municipality for reconsideration of the Congregation's rezoning application.
32 The Congregation argues that this remedy is inadequate because it fears that the
Municipality will once again refuse its application, this time with proper reasons. Accordingly, it
asks this Court to order the Municipality to grant its rezoning application. But such an order
presupposes that the Congregation is entitled to a favourable decision by the Municipality in the
proper exercise of its discretion. Having already discussed the broad scope of the municipal
power to pursue its urban planning program with fairness, in good faith and with a view to the
public interest, I take no position on this matter.
33 It may be that in appropriate cases, high-handed or outrageous conduct as that of the
Municipality in this appeal might support an order for solicitor-and-client costs or punitive
damages: Whiten v. Pilot Insurance Co., [2002] 1 S.C.R 595, 2002 SCC 18; Younq v. Young,
[19931 4 S.C.R 3. Although the Congregation has made no such request to this Court, we
nevertheless retain the right to issue an order for solicitor-and-client costs where circumstances
so warrant: Supreme Court Act, RS.C. 1985, c. S-26, s. 47. However, in light of our inability to
conclude on the facts whether the Municipality acted in bad faith in denying the Congregation's
second and third rezoning applications, I would decline to award solicitor-and-client costs in this
appeal.
34 It is also unnecessary to consider the constitutionality of the impugned provisions of the
Act respecting land use planning and development and to answer the constitutional questions.
V. Conclusion
35 I would allow the appeal with costs to the Congregation and remit the Congregation's
rezoning application for the property located at 2373 Labelle Boulevard to the Municipality, to be
considered in accordance with these reasons and in observance of the lawful exercise of
discretionary authority.
The following are the reasons delivered by
36 Major J. (Dissenting) -- I agree with the result in the judgment of LeBel J. but restrict my
reasons to his conclusions on the findings of fact of the trial judge and the absence of any
infringement to freedom of religion.
English version of the reasons of Bastarache, LeBel and Deschamps JJ. delivered by
LEBEL J. --
I. Introduction
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37 This appeal concerns a municipal zoning problem relating to the construction of a place of
worship for a religious group. The dispute arose out of the refusal of the municipality of the
village of Lafontaine (the "municipality") to amend its zoning by-law to allow the appellants to
build a place of worship, a Kingdom Hall, on land they bought in a zone where the construction
of such facilities is not permitted. More specifically, it is necessary to determine whether the
municipality's refusal to amend its zoning by-law infringes of the freedom of religion guaranteed
by s. 2(a) of the Canadian Charter of Rights and Freedoms (the "Charter"). If so, it will be
necessary to find an appropriate remedy, which will entail a review of the constitutionality of
provisions of the Act respecting land use planning and development, R.S.Q., c. A-19.1
("AL, UPD") relating to the referendum process for approving amendments to zoning by-laws.
The case also raises a preliminary issue, that is, whether the Court of Appeal was correct in
varying the trial judge's finding of fact that lots were available in the zone where the
establishment of places of worship is permitted by the municipal by-law. Finally, there remains a
question of administrative law relating to the provision of reasons for the municipality's decision
not to amend its zoning by-law that should be addressed.
38 The courts below dismissed the appellants' case. I conclude, for reasons that are different
from those of the Quebec Court of Appeal and that I will now set out, that an infringement of
freedom of religion has not been established and that the appeal should be dismissed.
II. Origins of the Case
39 The respondent municipality, the village of Lafontaine, is located near St-Jerome, Quebec.
In 2002, the municipality was amalgamated with the city of St-Jerome. The appellants have
been looking for a suitable parcel of land in this municipality on which to establish a place of
worship, a "Kingdom Hall", since 1989 and have been seeking permission from the municipality
to build such a facility since 1992.
40 The municipality's zoning by-law No. 362, as it read in 1992, allowed places of worship to
be built in a regional community use zone designated as Zone P-3 (ss. 2.2.1 and 2.2.5.3). As
they felt that no land was available in this zone for the construction of
their Kingdom Hall, the appellants made an initial offer, conditional on the amendment of the
municipality's zoning by-law, to purchase a lot located in a residential zone. On receiving the
appellants' application, the municipality refused to amend its zoning by-law on the ground that
this would have resulted in an increase in the tax burden for ratepayers, since places of worship
are exempt from paying tax. Following this refusal, the appellants made a second conditional
offer on November 22, 1992, this time to purchase a lot in Zone C-3, a commercial use zone.
They then applied to the municipality a number of times for a zoning change that would permit
them to build their place of worship on this lot. The municipality categorically refused to grant
their application. There were then some heated exchanges with the municipality's lawyers, who
justified the refusal to amend the zoning by-law on the basis that lots were available in Zone P_
3. On August 5, 1993, after the municipality refused to amend its zoning by-law, the appellants
bought the lot in Zone C-3.
41 To obtain the necessary permits to build their place of worship on this lot, the appellants
instituted a proceeding for mandamus. They based their proceeding on grounds based
primarily on constitutional law, alleging that the municipality's refusal to amend its zoning by-law
violated their freedom of religion under s. 2(a) of the Charter and under the Charter of human
rights and freedoms, R.S.Q., c. C-12 (the "Quebec Chartet'). They also asked that the
provisions of the Act respecting land use planning and development relating to the process for
approving amendments to zoning by-laws by way of referendum be declared unconstitutional,
because such a public consultation, in their view, would violate their freedom of religion. This
proceeding gave rise to the case now before our Court.
III. Judicial History
A. Quebec Superior Court (December 14, 1998)
42 Dubois J. of the Quebec Superior Court began by finding that, pursuant to the
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municipality's zoning by-law, places of worship could be built only in Zone P-3. To build such a
facility in another zone, in this case Zone C-3, the by-law would have to be amended.
43 After conducting a detailed analysis of the evidence before him, the trial judge held that
lots on which the appellants could build their place of worship were still available in Zone P-3
and that some of them were still up for sale. According to Dubois J., 709,873 square feet of land
in Zone P-3 had yet to be developed. At least two lots were still on the market in that zone. In
his view, one lot, which he called the "island lot", was available and would be a suitable site for
the appellants' place of worship, since it was even larger than the lot they had purchased.
According to Dubois J., another lot, one belonging to Francine Jolicoeur that was located
behind the Pavilion Ste-Marie (P-3-418), was also available. He found Ms. Jolicoeur's testimony
to the effect that she was prepared to sell this lot to be credible. In his opinion, the appellants
should have made Ms. Jolicoeur a formal offer to purchase to determine whether the lot was
indeed available.
44 Dubois J. also refused to characterize the zoning by-law as prohibitive, since it allowed
the construction of places of worship in Zone P-3. He concluded by stating that, since the
purpose of the by-law was to organize the municipality's territory while ensuring that citizens'
interests were taken into account and that order was maintained in the municipality, the by-law
did not infringe freedom of religion. The Superior Court accordingly dismissed the appellants'
application for mandamus.
B. Court of Appeal, [2002] R.J.Q. 3015
45 The Quebec Court of Appeal was divided as to how to dispose of the appeal. Gendreau
and Pelletier JJA, who formed the majority of the Court, dismissed the appeal, while Robert
C.J.Q., who dissented, would have allowed it.
46 The majority agreed with the conclusion of Robert C.J.Q. that the trial judge had made an
unreasonable error in finding that lots on which the appellants could build their place of worship
were still available in Zone P-3. Thus, all the judges of the Court of Appeal agreed that no land
was available in that zone on which to build a Kingdom Hall.
47 However, in the opinion of the majority, the municipality was not responsible for this
unavailability. Since the zoning by-law was not prohibitive, as it did not make it impossible to
locate places of worship within the boundaries of the municipality, it could not be regarded as
the reason why no land was available in Zone P-3. Rather, the source of the problem was the
refusal of landowners in that area to sell lots to the appellants. The majority added that the
municipality was under no positive obligation to preserve freedom of religion under s. 2(a) of the
Charter. This led them to conclude that the municipality was not under an obligation to ensure
that every religious community could have a place of worship located within its boundaries. The
majority therefore dismissed the appeal.
48 Robert C.J.Q., dissenting, would have allowed the appeal. In his view, the trial judge had
correctly concluded that, pursuant to the zoning by-law, places of worship could be built only in
Zone P-3 and that the by-law would have to be amended to allow the construction of such
facilities in other zones, such as Zone C-3.
49 However, the Chief Justice felt that the trial judge had made a palpable and overriding
error in assessing the facts with respect to the availability of lots in Zone P-3. In his view, the
Superior Court made an initial error of this nature in assessing the evidence relating to the
availability of the "island lot". The island was in fact too small for the appellants' construction
plans, because a strip of land varying between 10 and 15 metres in width had been set aside to
protect the river banks. Moreover, the island's access road would be insufficient for a traffic
volume of 40 to 50 vehicles. At any rate, the appellants had been told that the land was not for
sale. Robert C.J.Q. was also of the opinion that the burden placed on the appellants as regards
their dealings with Ms. Jolicoeur to purchase her land was excessive. In his view, the evidence
did not support a finding that she was in fact prepared to sell the portion of her land located
behind the Pavilion Ste-Marie. He therefore was of the view that no land was available in
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Zone P-3 for the construction of the appellants' place of worship. As I have already mentioned,
the majority accepted this finding of fact.
50 Unlike the majority, Robert C.J.Q. held that the application of the zoning by-law infringed
the freedom of religion guaranteed by s. 2(a) of the Charter, as it made it impossible for the
appellants to build a place of worship. The municipality was therefore under a duty to make a
reasonable effort to accommodate the appellants. It should have amended its zoning by-law at
that time to allow the place of worship to be built in another zone within its boundaries.
51 In the dissenting judge's opinion, this infringement of the appellants' right to freedom of
religion should be remedied by granting the appellants a constitutional exemption from the
zoning by-law. This form of remedy would make it unnecessary to amend the zoning by-law. An
amendment would require the application of the Act respecting land use planning and
development, which would entail the risks inherent in its process for approval by way of
referendum. Robert C.J.Q. therefore would have ordered the municipality to issue a building
permit to the appellants for the construction of their place of worship on the lot they had
acquired in Zone C-3.
IV. Leave to Appeal to the Supreme Court and Constitutional Questions Stated by the Court
52 Leave to appeal to this Court was granted, [2003] 1 S.C.R viii, on April 10, 2003. The
appellants then asked the Court to state the constitutional questions raised in this case in
relation to the process for approving amendments to by-laws by way of referendum as provided
for in ss. 123 to 130 and 132 of the Act respecting land use planning and development. On
June 5, 2003, the following questions were stated:
1 Do ss. 123 to 130 and 132 of the Act respecting land use planning and development,
RS.Q. c. A-19.1, infringe the right to freedom of religion guaranteed by s. 2(a) of the Canadian
Charter of Rights and Freedoms?
2 If so, is the infringement a reasonable limit prescribed by law that can be demonstrably
justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and
Freedoms?
3 Do ss. 123 to 130 and 132 of the Act respecting land use planning and development,
RS.Q. c. A-19.1, infringe the right to equality without discrimination guaranteed by s. 15(1) of
the Canadian Charter of Rights and Freedoms?
4 If so, is the infringement a reasonable limit prescribed by law that can be demonstrably
justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and
Freedoms?
V. Constitutional and Legislative Framework
53 The constitutional and legislative provisions applicable to this case can be found in the
appendix to these reasons.
VI. Issues
54 The dispute now before this Court raises four main issues. First, it must be determined
whether the Court of Appeal erred in varying the trial judge's findings of fact regarding the
availability of lots in Zone P-3. The next question is whether the wording of the municipality's
zoning by-law and the municipality's refusal to amend it infringe the freedom of religion
guaranteed by s. 2(a) of the Charter. It would also have been possible to consider whether the
right to freedom of religion guaranteed by s.3 of the Quebec Charter had been violated.
Although the appellants alleged such a violation in their legal proceedings, the debate between
the parties centred on the interpretation and application of the Canadian Charter, so the
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analysis will be limited to the freedom of religion guaranteed by s. 2(a) of the Canadian Charter.
If it is found that this fundamental freedom has been infringed, appropriate remedies will have to
be selected. In this analysis, the constitutional questions stated by this Court will have to be
answered. Finally, although the issue was not directly argued by the appellants, I believe it is
important to comment, in an administrative law context, on whether the municipality is under an
obligation to provide the appellants with reasons for its decisions not to amend its zoning by-law
and, if so, to what extent.
VII. Analysis
A. Interpretation of the Zoning By-law
55 Before I begin my analysis of the four issues, I should mention that I cannot accept the
appellants' submission that a liberal construction of the zoning by-law would lead to the
conclusion that it authorizes the establishment of places of worship in Zone C-3. This
submission is based on the wording of s. 2.2.3.3 of the zoning by-law, which sets out the uses
authorized for Zone C-3, namely [TRANSLATION] "uses in the nature of sales and service",
including, "but. . . not limited to, the establishments listed below and establishments of a similar
nature"; included in the list are "Commercial 2 (local)" uses, which, according to s. 2.2.3.2,
include "social clubs". The appellants argue that, since the list of authorized uses is not
exhaustive, and since places of worship are similar in nature to social clubs, it follows that the
establishment of places of worship is permitted in Zone C-3.
56 Under s. 113(3) ALUPD, municipalities have the authority to prohibit particular uses in
specific zones within their boundaries. In principle, a municipality may implicitly prohibit certain
uses by listing the authorized uses for a zone (Saint-Michel-Archange (Municipalite de) v. 2419-
6388 Quebec Inc., [1992] R.J.Q. 875 (C.A.), at p.883). Thus, a municipality that lists the
permitted uses for a zone automatically excludes any use not on the list (Orford (Canton) v.
Fonds de placement Hamel inc., [1995] A.Q. No. 2260 (QL) (C.S.)). The appellants contend that
this principle does not apply to s. 2.2.3.3 of the zoning by-law, because the municipality has
clearly stated that the list of authorized uses is not exhaustive. As pointed out by the dissenting
member of the Court of Appeal, this contention cannot be accepted in relation to this by-law
because of the ejusdem generis rule of interpretation, according to which a generic term that
completes an enumeration must be interpreted in light of the genus of the other terms. In the
case at bar, the provisions relating to Zone C-3 concern commercial uses. In this context, a
"social club" cannot therefore be interpreted as being similar in nature to a place of worship.
57 In my opinion, therefore, the municipal by-law permits the establishment of places of
worship only in Zone P-3. Having said this, I will now turn to the analysis of the issues.
B. Did the Court of Appeal Err in Varying the Trial Judge's Findings of Fact?
58 The Court of Appeal unanimously concluded that the trial judge had made an overriding
error in assessing the evidence relating to the availability of certain lots in Zone P-3. Contrary to
the trial judge's finding, the Court of Appeal acknowledged that no lots were available in this
zone for the appellants to build their place of worship. Although I agree with the Court of
Appeal that the "island lot" was not available for the construction of the appellants' place of
worship, I respectfully consider its conclusion regarding Ms. Jolicoeur's lot to be wrong. It
reached that conclusion by means of an impermissible interference with the trial judge's
assessment of the facts and even with his assessment of certain witnesses' credibility.
Consequently, the trial judge's findings of fact with respect to the availability of this lot should be
restored.
59 According to the principles restated by this Court in Hausen v. Nikolaisen, [2002]
2 S.C.R. 235, 2002 SCC 33, an appellate court may not review the findings of fact of a trial
court unless the trial court has made a palpable, serious and overriding error. This duty of
deference is particularly strong in respect of the assessment of witnesses' credibility. In the
case at bar, as Robert C.J.Q. concluded, the trial judge made a reviewable error with respect to
the availability of the "island lot". The trial judge clearly failed to take into account the
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consequences of the strip along the river bank and of the narrowness of the bridge providing
access to the island.
60 Robert C.J.Q. also faulted the trial judge for making a palpable and overriding error
regarding the availability of the lot belonging to Ms. Jolicoeur. His opinion on this point can be
found in particular in the following comments from his reasons, at paras. 76-77:
[TRANSLATION]
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In my view, there was no need for the appellants to make a formal offer to purchase.
Ms. Jolicoeur's disinterest, coupled with the uncontradicted statement that the Secretary-
Treasurer had asked her not to sell to the Jehovah's Witnesses, led the appellants to believe in
good faith that the lot was not available.
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Furthermore, Ms. Jolicoeur's testimony five years after the fact to the effect that the lot was
available in 1992 and 1993 and was still available in 1998 is surprising, to say the least. Her
version of the facts is contradicted by her conduct throughout the years in question. The judge,
in preferring her version, made a palpable and overriding error, particularly in attributing a
hidden motive to the appellants, one not supported by the evidence, namely that they wanted a
lot that was located near a major thoroughfare.
61 With respect, I do not believe that, on this point, the trial judge made a palpable and
overriding error within the meaning of the case law of this Court. Dubois J. stated in his reasons
for judgment that one of the appellants' representatives, Mr. Biagioni, testified that Ms. Jolicoeur
had shown a marked disinterest in selling her property, that the Secretary-Treasurer of the
municipality, a certain Mr. Campbell, had told her not to sell the lot to the Jehovah's Witnesses,
and that she had not replied to the appellants' letters. The trial judge acknowledged that
Ms. Jolicoeur's testimony was consistent with that of Mr. Biagioni in that she admitted that she
had neither returned the appellants' calls nor responded to their letters. However, Dubois J.
noted that the two witnesses contradicted each other on one specific and important point.
Contrary to what Mr. Biagioni had said, Ms. Jolicoeur stated that Mr. Campbell had not called
her to recommend that she not sell to the Jehovah's Witnesses, but to ask her why she had
refused to sell them her land. She added that the appellants wanted to buy a portion of her land
that was not for sale, that is, the one on the main road where the Pavilion Ste-Marie is located.
She testified that she had offered to sell the back portion of her land to the appellants, but that
they were not interested. Faced with this contradiction between the two witnesses, the trial
judge found Ms. Jolicoeur to be more credible and preferred her version of the facts to Mr.
Biagioni's version. Dubois J. therefore held that [TRANSLATION] "Ms. Jolicoeur's testimony
cannot be discounted, and her land in Zone P-3 was available in 1992 and 1993 and remains
so to this day in 1998" (at p. 29). Thus, the trial judge addressed the issue of the witnesses'
credibility. There was no need for the Court of Appeal to reassess the evidence heard by the
trial judge to determine if this conclusion was reasonable. Absent a palpable error, the Court of
Appeal should have deferred to the trial judge's finding of fact. Since this finding was valid, it
should not have been varied by the Court of Appeal.
62 In these circumstances, since there was no valid reason for reviewing the trial judge's
findings of fact, it is necessary to analyse the parties' submissions starting from the premise that
at least one parcel of land in Zone P-3, the one that Ms. Jolicoeur owned behind the Pavilion
Ste-Marie, remained available as a site for the appellants' place of worship. In my view, this
finding of fact would justify dismissing the appellants' application from the outset, since it
precludes a conclusion that the respondent infringed the appellants' constitutional guarantee of
freedom of religion under s. 2(a) of the Charter, as we will now see.
C. Was There an Infringement of the Freedom of Religion Guaranteed by s. 2(a) of the
Canadian Charter of Rights and Freedoms?
63 Before I address the question of freedom of religion, it should be noted that the
municipality's zoning by-law did not prohibit the "place of worship" use everywhere within its
boundaries; rather, it permitted this use in a specified zone. Therefore, the by-law cannot be
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considered prohibitive as defined by the courts (Saint-Michel Archange (Municipalite de), supra,
at p.882; J. L'Heureux, Droit municipal quebecois, 1. II (1984), p.317, at para. 606). The
wording of the by-law leaves room for the exercise of freedom of worship. We must now
determine whether the room it leaves is consistent with the constitutional requirements of the
Canadian Charter.
64 Freedom of religion is a fundamental right and represents a major triumph of our
democratic society. The philosophical and political values underpinning Canadian democracy
recognize the need to respect the diverse opinions and beliefs that guide the consciences and
give direction to the lives of all members of our society. It is because of the crucial importance
of this fundamental right that this Court decided it was essential to give it a liberal interpretation
in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (at p. 336):
The essence of the concept of freedom of religion is the right to entertain such religious
beliefs as a person chooses, the right to declare religious beliefs openly and without fear of
hindrance or reprisal, and the right to manifest religious belief by worship and practice or by
teaching and dissemination.
65 The concept of freedom of religion, which is not strictly limited to the above definition,
includes a positive aspect, that is, the right to believe or not believe what one chooses, to
declare one's beliefs openly, and to practice one's religion in accordance with its tenets. This
positive aspect also includes the right to proselytize, that is, to teach and
disseminate one's beliefs. Freedom of religion also has a negative aspect, that is, the right not
to be compelled to belong to a particular religion or to act in a manner contrary to one's religious
beliefs (J. Woehrling, "L'obligation d'accommodement raisonnable et I'adaptation de la societe a
la diversite religieuse" (1998), 43 McGill LJ. 325, at p. 371). This fundamental freedom imposes
on the state and public authorities, in relation to all religions and citizens, a duty of religious
neutrality that assures individual or collective tolerance, thereby safeguarding the dignity of
every individual and ensuring equality for all.
66 The duty of neutrality appeared at the end of a long evolutionary process that is part of the
history of many countries that now share Western democratic traditions. Canada's history
provides one example of this experience, which made it possible for the ties between church
and state to be loosened, if not dissolved. There were, of course, periods when there was a
close union of ecclesiastical and secular authorities in Canada. European settlers introduced to
Canada a political theory according to which the social order was based on an intimate alliance
of the state and a single church, which the state was expected to promote within its borders.
Throughout the history of New France, the Catholic church enjoyed the status of sole state
religion. After the Conquest and the Treaty of Paris, the Anglican church became the official
state religion, although social realities prompted governments to give official recognition to the
status and role of the Catholic church and various Protestant denominations. This sometimes
official, sometimes tacit recognition, which reflected the make-up of and trends in the society of
the period, often inspired legislative solutions and certain policy choices. Thus, at the time of
Confederation in 1867, the concept of religious neutrality implied primarily respect for Christian
denominations. One illustration of this can be seen in the constitutional rules relating to
educational rights originally found, inter alia, in s. 93 of the British North America Act, 1867.
67 Since then, the appearance and growing influence of new philosophical, political and legal
theories on the organization and bases of civil society have gradually led to a dissociation of the
functions of church and state; Canada's demographic evolution has also had an impact on this
process, as have the urbanization and industrialization of the country. Although it has not
excluded religions and churches from the realm of public debate, this evolution has led us to
consider the practice of religion and the choices it implies to relate more to individuals' private
lives or to voluntary associations. (M.H. Ogilvie, Religious Institutions and the Law in Canada
(2nd ed. 2003), at pp.27 and 56). These societal changes have tended to create a clear
distinction between churches and public authorities, placing the state under a duty of neutrality.
Our Court has recognized this aspect of freedom of religion in its decisions, although it has in so
doing not disregarded the various sources of our country's historical heritage. The concept of
neutrality allows churches and their members to play an important role in the public space
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where societal debates take place, while the state acts as an essentially neutral intermediary in
relations between the various denominations and between those denominations and civil
society.
68 In this context, it is no longer the state's place to give active support to anyone particular
religion, if only to avoid interfering in the religious practices of the religion's members. The state
must respect a variety of faiths whose values are not always easily reconciled. As this Court
observed in Big M, supra, "[w]hat may appear good and true to a majoritarian religious group, or
to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who
take a contrary view" (at p. 337; see also pp. 347,350 and 351). In R. v. Edwards Books and
Art Ltd., [1986] 2 S.C.R. 713, this Court had occasion to restate this concern with preventing
public authorities from intruding on private beliefs (at p. 759):
The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal
beliefs that govern one's perception of oneself, humankind, nature, and, in some cases, a
higher or different order of being.
The guarantee of freedom of religion set out in s. 2(a) of the Charter prohibits the state from
compelling an individual to adopt or renounce a particular belief or to practice a particular
religion. This obligation remains essentially a negative one. As a general rule, the state refrains
from acting in matters relating to religion. It is limited to setting up a social and legal framework
in which beliefs are respected and members of the various denominations are able to associate
freely in order to exercise their freedom of worship, which is a fundamental, collective aspect of
freedom of religion, and to organize their churches or communities. In this context, the principle
of neutrality must be taken into account in assessing the duty of public entities, such as
municipalities, to actively help religious groups.
69 A review of the various components of the concept of freedom of religion might suggest
that the rights protected by s. 2(a) of the Charter are absolute, but such is not the case. This
freedom is limited by the rights and freedoms of others. The diversity of opinions and
convictions requires mutual tolerance and respect for others. Freedom of religion is also
subject to limits necessary "to protect public safety, order, health, or morals. . ." (Big M, supra,
at p.337; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, at para. 72;
Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772,
2001 SCC 31, at para. 29). This Court has stressed that, in order to prove a violation of freedom
of religion, it must be shown that the interference with the religious belief or practice in question
is not trivial or insubstantial. Thus, churches and their members are not exempted from making
any effort, or even sacrifice, inter alia in the exercise of their freedom of worship:
The Constitution shelters individuals and groups only to the extent that religious beliefs or
conduct might reasonably or actually be threatened. For a state-imposed cost or burden to be
proscribed by s. 2(a) it must be capable of interfering with religious belief or practice. In short,
legislative or administrative action which increases the cost of practising or otherwise
manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial: see, on this
point, R. v. Jones, [1986] 2 S.C.R. 284, per Wilson J. at p. 314.
(Edwards Books, supra, at p. 759)
70 I concluded above that the trial judge's findings of fact regarding the availability of certain
lots in Zone P-3 and, more specifically, of the one belonging to Ms. Jolicoeur, should be
restored in this case. As this lot should have been considered available, the appellants cannot
complain that the zoning by-law, by making it impossible for them to establish a place of
worship in the municipality, violates their freedom of religion. The appellants could in fact have
built a Kingdom Hall, on Ms. Jolicoeur's lot at least, had they come to an agreement with her.
71 As the municipality is required to be neutral in matters of religion, its by-laws must be
structured in such a way as to avoid placing unnecessary obstacles in the way of the exercise
of religious freedoms. However, it does not have to provide assistance of any kind to religious
groups or actively help them resolve any difficulties they might encounter in their negotiations
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with third parties in relation to plans to establish a place of worship. In the case at bar, the
municipality did not have to provide the appellants with access to a lot that corresponded better
to their selection criteria. Such assistance would be incompatible with the municipality's duty of
neutrality in that the municipality would be manipulating its regulatory standards in favour of a
particular religion. Such support for a religious group could jeopardize the neutrality the
municipality must adopt toward all such groups. Moreover, as this Court stated in Edwards
Books, "[s]ection 2(a) does not require the legislatures to eliminate every minuscule state-
imposed cost associated with the practice of religion" (at p. 759). Although the very nature of
the zoning by-law means that the appellants do not have absolute freedom to choose the
location of their place of worship, this limit is necessary to protect safety and order, and ensure
proper land use, in the municipality and does not constitute a violation of freedom of religion.
Neither the purpose nor the effect of this by-law has been to infringe the appellants' freedom of
religion.
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72 Since at least one lot remains available in Zone P-3 for the construction of their place of
worship, the appellants must comply with the municipality's zoning by-law and build their place
of worship in that zone, where such a use is authorized. Their religious beliefs and practices do
not exempt them from complying with municipal by-laws. For this reason, I would dismiss the
appeal. Having reached this conclusion, I could end my analysis here. However, for the sake of
discussion only, and because of the nature of the debate that has taken place in the Quebec
courts and in this Court and the importance of the constitutional issues raised, I propose to go
on to review the parties' positions based on a different, fictitious premise. I will now consider
what the legal consequences would have been had the evidence shown that no land was
available in Zone P-3 for the appellants to establish a place of worship.
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D. Hypothetical Situation in Which No Land Was Available in Zone P-3
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73 The appellants submit that, because no land is available in Zone P-3, the zoning by-law,
as it is drafted, combined with the municipality's refusal to amend it, constitutes an infringement
of their freedom of religion under s. 2(a) of the Charter. If no land were in fact available, I would
agree with them. Thus, under the zoning by-law, places of worship may be established only in
Zone P-3, but no land would be available there. The appellants would therefore be unable to
build their place of worship anywhere within the boundaries of the municipality. Freedom of
religion includes the right to have a place of worship. Generally speaking, the establishment of
a place of worship is necessary to the practice of a religion. Such facilities allow individuals to
declare their religious beliefs, to manifest them and, quite simply, to practise their religion by
worship, as well as to teach or disseminate it. In short, the construction of a place of worship is
an integral part of the freedom of religion protected by s. 2(a) of the Charter.
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74 In the case at bar, the appellants have shown that their Kingdom Hall, a place of prayer
and contemplation that serves as a venue for weddings and funerals, is necessary to the
manifestation of their religious faith. They should therefore be free to establish such a facility
within the boundaries of the municipality. If no land were available in Zone P-3, they would be
prevented from doing so, in which case they would be unable to practise their religion, and their
freedom guaranteed by s. 2(a) of the Charter would be infringed accordingly.
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75 Contrary to the conclusion of the majority of the Court of Appeal, I believe this
infringement would not be solely attributable to the property owners who had refused to sell
their land in Zone P-3 to the appellants. Our Court has stated that "the contribution of private
actors to a violation of fundamental freedoms does not immunize the state from Charter review;
rather, such contributions should be considered part of the factual context in which legislation is
reviewed" (Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94, at
para. 26). Thus, the infringement of the appellants' freedom of religion would result not from the
existence of the zoning by-law, but from the refusal to adapt it to evolving community needs in a
situation in which no land was available in the zone set aside for the establishment of places of
worship.
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76 The problem consists in identifying cases in which it will be possible to require the
municipality to amend its zoning by-law while respecting its duty of neutrality. As a general rule,
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the Charter does not require the state to take positive steps in support of the exercise of the
fundamental freedoms provided for in s.2(a) of the Charter. The principle of neutrality
discussed above means that the state must even refrain from implementing measures that
could favour one religion over another or that might simply have the effect of imposing one
particular religion. However, there may be situations in which an absolute application of this
principle unduly restricts the free exercise of religion. In some cases, an inflexible application of
the principle of neutrality that fails to take the circumstances into account may prove to be
inconsistent with the right to the free exercise of religion. In this regard, Professor Woehrling
observed that [TRANSLATION] "the two constituent principles of freedom of religion -- free
exercise and state neutrality -- must be regarded as mutually limiting, since giving the broadest
scope to one will inevitably negate the other" (Woehrling, supra, at p. 379).
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77 Our Court has noted on numerous occasions that it is not always enough for the state to
adopt a posture of restraint. The Court has recognized that, in certain exceptional
circumstances, positive government action may be required to make a fundamental freedom
meaningful (Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, at paras. 7 and
33; Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1039; Dunmore, supra).
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78Dunmore, supra, is an example of a case in which exceptional circumstances imposed a
positive obligation on the state. In Dunmore, Ontario's Labour Relations Act, 1995, S.O. 1995,
c. 1, excluded agricultural workers from the labour relations scheme it established. The
appellants contended that this exclusion infringed their right to freedom of association under
s. 2(d) of the Charter. Bastarache J., writing for the majority, concluded that the total exclusion
of these workers did in fact infringe their freedom of association and that a minimum level of
protection had to be provided for persons employed in agriculture in Ontario. He noted that, in
principle, the fundamental freedoms guaranteed by the Charter place only a negative obligation
on the state, which is only required to refrain from interfering (at para. 19). However, when the
state creates a situation that interferes with the exercise of a freedom, it may be required to take
positive steps to put an end to the interference. In such a case, it is essential to prove that the
limit complained of is related to the freedom at issue and not to access to a particular statutory
scheme. In other words, it must be proven that the impugned measure makes it impossible to
exercise, or at least substantially interferes with, one's freedom (at para. 25). As Bastarache J.
mentions, it will only be in exceptional cases that underinclusive legislation will have a
substantial impact on the exercise of a fundamental freedom (at para. 22).
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79 The case at bar involves one such exceptional situation in which a posture of restraint on
the municipality's part would interfere with the appellants' freedom of religion. It would be utterly
impossible for the appellants to establish their place of worship within the boundaries of the
municipality if no land were available in the only zone where this type of use is authorized. As it
would then be impossible to practise their religion, this would constitute direct interference with
their freedom of religion. This is a clear example of a case in which freedom of religion can have
no real meaning unless the public authorities take positive action. Since such positive action
would be required, it would constitute a reasonable limit on the principle of state neutrality.
Thus, for the appellants to enjoy their freedom of religion, the municipality would have to amend
the by-law. This brings me to the question of the remedies that could have been available had I
concluded that no land was available in Zone P-3.
E. What Are the Appropriate Remedies?
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80 Since no infringement of a Charter right has been established in this case, there is nothing
to remedy. However, had a violation been established, the appellants asked this Court to
compel the municipality to amend its zoning by-law to allow the construction of heir place of
worship on the lot they acquired in Zone C-3. The appellants also asked that this amendment
not be subject to the process for approving amendments by way of referendum under ss. 123 to
130 and 132 ALUPD, because they contend that those provisions are contrary to the freedom of
religion guaranteed by s. 2(a) of the Charter. Such a remedy could not have been granted in the
circumstances of the case at bar.
81 This Court could in fact have ordered the municipality to amend its zoning by-law, but we
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could not have imposed on the municipality our choice of location for the establishment of the
appellants' place of worship. The purpose of zoning by-laws is to organize a municipality's
territory so as to protect citizens' interests and maintain order. They must be drafted in light of a
large number of factors, and it is ordinarily only those with political power who are in a position
to measure the impact of those factors. It would therefore have been up to the municipality to
determine the zone where the appellants could establish their place of worship. In so doing, the
respondent would have had to take into account the restrictions resulting from the regional
development plans established by the regional county municipality pursuant to the Act
respecting land use planning and development. Thus, the only possible remedy that would have
been appropriate was an order to the municipality to review its zoning by-law so as to make
land available to the appellants on which they could build their place of worship.
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82 It would not have been appropriate to suspend the operation of the Act respecting land
use planning and development and its process for approval by way of referendum. It cannot be
assumed that this democratic process, which is consistent with the nature of municipal
government in Canada, in any way infringes the freedom of religion guaranteed by s. 2(a) of the
Charter or that it is considered suspect in relation to the values enshrined in the Charter. In the
case at bar, the municipality did not draft a by-law to amend its zoning by-law, and a public
meeting was not held to study such a draft by-law (ss. 125-27 ALUPD). The by-law was not
submitted for the approval of the qualified voters to determine whether it would be submitted for
approval by way of referendum (ss. 130-33 ALUPD), nor was a referendum held to approve the
by-law to amend the zoning by-law. It cannot be assumed that residents of the municipality
would look unfavourably on the Jehovah's Witnesses and that the outcome of a referendum
would be negative. Thus, it would be inappropriate to declare ss. 123 to 130 and 132 et seq.
ALUPD unconstitutional or to suspend, a priori, the operation of those provisions.
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83 In short, if no land had been available in Zone P-3, this Court would have found an
infringement of the freedom of religion protected by s.2(a) of the Charter and would have
ordered the municipality to review the zoning by-law, taking into account all the interests, both
public and private, at issue, in order to amend it, if necessary, to permit the appellants, as far as
possible, to build their place of worship within the municipality's boundaries. However, this
Court would have had no valid reason to override the democratic control mechanisms provided
for in Quebec's municipal legislation with respect to zoning.
84 I would also note in closing that the amalgamation of municipalities has probably resulted
in changes relating to zoning in the municipality, which is now part of the city of St-Jerome. As
the parties did not discuss this consequence of the passage of time in a case that has been
going on for too long, it would have been difficult for the Court to devise an effective remedy.
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F. The Impact of Administrative Law
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85 In addition to the constitutional questions discussed so far, this appeal has administrative
law implications. However, the appellants declined to base their case on the principles of
administrative law, preferring to focus on their arguments based on freedom of religion. As a
result, the questions of administrative law cannot form the basis of this Court's decision,
although some comments are in order due to the importance of these questions.
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86 In their pleadings, the appellants limited themselves to maintaining that the municipality, in
refusing to amend its zoning by-law, had exercised its discretion in an unreasonable and
arbitrary manner and had acted in bad faith. Although these contentions are not supported by
the evidence, they do show that an argument relating to procedural fairness, based on the
reasons given for the municipality's negative decisions, could have been raised by the
appellants, but they declined to do so at the hearing before this Court.
87 The municipality's decision to refuse to amend its zoning by-law is within the scope of its
discretionary power, as it had to decide whether it would be appropriate to amend the by-law.
The municipality had a range of options at its disposal, and its constituting act did not dictate
which one it should select (Baker v. Canada (Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817, at para. 52). This type of decision made by an administrative authority can at
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times be subject to a duty of procedural fairness. For example, the Act respecting
administrative justice, R.S.Q., c. J-3 (nAAJ'), which was enacted by the Quebec legislature on
December 16, 1996, and came into force on April 1 , 1998, after the facts giving rise to this case
took place, requires government departments and bodies to comply with procedural fairness in
their discretionary decision-making processes. Thus, the organizations to which this act applies
have a duty to act fairly (s. 2 AAJ), including a requirement to give reasons for any unfavourable
decisions they make (ss. 5 and 8 AAJ). As municipalities are not subject to this act (s. 3 AAJ), it
must be determined whether they are subject to the same duty by virtue of the legal rules
gradually developed by the common law to define the obligations of procedural fairness
applicable to government organizations.
88 In Baker, supra, this Court stated that n[t]he fact that a decision is administrative and
affects 'the rights, privileges or interests of an individual' is sufficient to trigger the application of
the duty of fairness: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653n (at
para. 20). To define the variable content of this duty, it is necessary to consider five open-ended
factors that serve to ensure that individuals affected by a decision have the opportunity to
present their case fully and fairly and that decisions are made using a fair, impartial and open
process appropriate to their statutory, institutional and social context (Baker, at paras. 22 and
28). Thus, the scope of this duty will depend on the nature of the decision, on the decision-
making process, on the nature of the statutory scheme, for example whether it includes a right
of appeal, on the importance of the decision to the person affected, on the legitimate
expectations of that person and on the choices of procedure made by the decision-making body
(Baker, at paras. 23-28).
89 When applied to the case at bar, these factors would, at the least, place the municipality
under an obligation to give reasons for its repeated refusals to amend its zoning by-law. The
municipality's decision regarding the application to amend the zoning by-law, which was not
subject to a specific decision-making process, could not be appealed by the appellants even
though it had a direct effect on their right to freedom of religion guaranteed by s. 2(a) of the
Charter. Normally, the appellants could expect to receive reasons from the municipality for its
decision. The importance of a negative decision to the appellants, who as a result found it
impossible to build the place of worship they needed to practice their religion, in itself placed the
municipality under an obligation to give reasons for its decision.
90 The municipality did not give sufficient reasons for its decisions. After receiving the
appellants' application to amend the zoning by-law in relation to their first offer to purchase the
lot located in a residential zone, the municipality's explanation for its refusal was that such an
amendment would result in an increase in the taxation rate and that the owners of adjacent lots
who would be affected by this increase would not take part in the process of approval by way of
referendum provided for in the Act respecting land use planning and development. Then, when
the municipality refused to amend its zoning by-law in relation to the second lot the appellants
wished to purchase, the one located in Zone C-3, it justified its decision on the basis that lots
were available in Zone P-3 but did not identify the lots in question. The appellants, convinced
that no lots were available in that zone, then applied to the municipality on four other occasions
to amend the zoning by-law. The municipality simply repeated that lots were available in
Zone P-3 and that it was therefore under no obligation to amend its zoning by-law.
91 In its replies, the municipality never did specify which lots were available or give any other
reasons for its decision. This refusal to provide the appellants with valid reasons is obvious from
a letter the municipality's attorney sent to the appellants on August 24, 1993, in which he wrote,
[TRANSLATION] "Upon careful consideration, the municipality of Lafontaine has decided not to
take action in respect of your applications. The municipal council of Lafontaine is not required
to provide you with a justification and we therefore have no intention of giving reasons for the
council's decision". The respondent should have given more detailed reasons for its decisions.
92 More detailed reasons would have given the appellants a better understanding of the
municipality's decision and, above all, demonstrated to them that there were in fact lots
available in Zone P-3. As a result, they would not have been left with the impression that the
municipality's decision was arbitrary or that the municipality had acted in bad faith. A more
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precise and rigorous justification would therefore have given the municipality's decision-making
process the required transparency and the appearance of procedural fairness.
VIII. Conclusion
93 For the reasons set out here, I would answer the constitutional questions in the negative
and dismiss the appeal with costs.
APPENDIX
Constitutional and Legislative Provisions
Canadian Charter of Rights and Freedoms
Charte canadienne des droits et Iibertes2.Everyone has the following fundamental freedoms:
a)freedom of conscience and religion;
2.Chacun ales libertes fondamentales suivantes :
a)liberte de conscience et de religion;
Cities and Towns Act, R.S.Q., c. C-19
Loi sur les cites et villes, L.R.Q., ch. C-19
410.The council may make by-laws:
(1 )To secure peace, order, good government, health and general welfare in the territory of
the municipality, provided such by-laws are not contrary to the laws of Canada, or of Quebec,
nor inconsistent with any special provision of this Act or of the charter;
410.Le conseil peut faire des reglements :
1 Pour assurer la paix, I'ordre, Ie bon gouvernement, la salubrite et Ie bien-etre general sur Ie
territoire de la municipalite, pourvu que ces reglements ne soient pas contraires aux lois du
Canada ou du Quebec, ni incompatibles avec quelque disposition speciale de la presente loi ou
de la charte;
[TRANSLATION]
Village de Lafontaine, By-law No. 361, Zoning By-law (April 2, 1991)
Village of Lafontaine, Reglement no. 362, Reglement de zonage (2 avril 1991)
2.2.1 CLASSES
For the purposes of this by-law, certain uses are grouped based on compatibility. These
uses are:
CuseCommercial1 (C-1 )
useCommerciaI2(C-2)
useCommerciaI3(C-3 )
PuseCommunity1 (P-1 )
useCommunity2(P-2)
useCommunity3(P-3 )useCommunity4(P-4)
2.2.1 NOMENCLATURE
Pour les fins du present regie me nt, certains usages sont groupes selon leur compatibilite.
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Ces usages sont :
[. . .]
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CusageCommerce1 (C-1)
usageCommerce2(C-2)
usageCommerce3(C-3)
[. . .]
PusageCommunautaire 1 (P-1 )
usageCommunautaire2(P-2 )
usageCommunautaire3(P-3 )
usageCommunautaire4(P-4 )
2.2.3.2 Commercial 2 (Local)
This zone is reserved for uses in the nature of sales and service. . .
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This classification includes, but is not limited to, the establishments listed below and
establishments of a similar nature. . . :
- hotels, motels, night clubs, social clubs, exhibition halls;
2.2.3.2 Commerce 2 (quartier)
Ne sont de cet usage que les usages des types vente et service [. . .]
Sont de cet usage, de maniere non limitative, les etablissements mentionnes dans la liste ci-
dessous ou s'apparentant a ceux-ci [. . .] :
[. . .]
- hOtels, motels, clubs sociaux, salles d'exposition;
[. . .]2.2.3.3 Commercial 3 (Regional)
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This zone is reserved for uses in the nature of sales and service and for small-scale
industries/businesses
This classification includes, but is not limited to, the establishments listed below and
establishments of a similar nature:
- Commercial 1 (neighbourhood) and Commercial 2 (local) uses;
2.2.3.3 Commerce 3 (regional)
Sont de cet usage, les usages des types vente et service et les industries/commerces
artisanaux
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[. . .]
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Sont de cet usage, et de maniere non limitative, les etablissements mentionnes dans la liste
ci-dessous ou s'apparentant a ceux-ci :
- les usages de la classe Commerce 1 (voisin age) et Commerce 2 (quartier);
[. . .]2.2.5.3 Community 3 (Regional)
This zone is reserved for the following activities relating to public administration, education,
recreation, health care and community-oriented cultural activities:
- places of worship;
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2.2.5.3 Communautaire 3 (Regional)
Sont de cet usage les activites suivantes reliees a I'administration publique, a I'education,
aux loisirs, a la sante et aux activites culturelles de nature communautaire :
[. . .]
- edifices de culte;
[. . .]Act respecting land use planning and development, R.S.Q., c. A-19.1Loi sur
I'amenagement et I'urbanisme, L.R.Q., ch. A-19.1113.The council of a municipality may
adopt a zoning by-law for its whole territory or any part thereof.
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A zoning by-law may include provisions regarding one or more of the following objects:
113.Le conseil d'une municipalite peut adopter un reglement de zonage pour I'ensemble ou
partie de son territoire.
Ce reglement peut contenir des dispositions portant sur un ou plusieurs des objets suivants :
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[. . .]
(3)to specify, for each zone, the structures and uses that are authorizedand those that are
prohibited, including public uses and buildings, and the land occupation densities;
[. . .]
3 specifier, pour chaque zone, les constructions ou les usages qui sont autorises et ceux qui
sont prohibes, y compris les usages et edifices publics, ainsi que les densites d'occupation du
sol;
. . .123.Sections 124 to 127 apply with respect to
123.Les articles 124 a 127 s'appliquent a I'egard de:
(1 )zoning, subdivision and building by-laws;
(4)by-laws to amend or replace a by-law mentioned in subparagraphs 1 to 3.
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For the purposes of this division, a by-law that is subject to approval by way of referendum is
a by-law that
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(1)is designed to amend a zoning or subdivision by-law by adding, amending, replacing or
striking out a provision bearing on a matter mentioned in any of subparagraphs 1 to 5,6,10, 11
and 16.1 to 22 of the second paragraph of section 113 or in the third paragraph of the said
section, or a matter mentioned in any of subparagraphs 1, 3 and 4.1 of the second paragraph of
section 115; and1 tout reglement de zonage, de lotissement ou de construction;
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[. . .]
4 tout reglement qui modifie ou remplace I'un de ceux mentionnes aux paragraphes 1 a 3.
[. . .]
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Pour I'application de la presente section, est susceptible d'approbation referendaire tout
reglement qui remplit les conditions suivantes :
1 avoir pour objet de modifier Ie reglement de zonage ou de lotissement en ajoutant,
modifiant, remplagant ou supprimant une disposition qui porte sur une matiere prevue a I'un des
paragraphes 1 a 5, 6, 10, 11 et 16.1 a 22 du deuxieme alinea de I'article 113 ou au troisieme
alinea de cet article ou sur une matiere prevue a I'un des paragraphes 1, 3 et 4.1 du deuxieme
alinea de I'article 115;
(2)is not a concordance by-law enacting, pursuant to section 58, 59, 102 or 11 0.4, an
amendment referred to in subparagraph 1 for the sole purpose of taking into account an
amendment to or revision of the land use planning and development plan or the coming into
force of the original planning program or of the amendment to or revision of the planning
program.
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2 ne pas etre un reglement de concordance qui apporte une modification vlsee au
paragraphe 1, en vertu de I'un des articles 58, 59, 102 et 11 0.4, uniquement pour tenir compte
de la modification ou de la revision du schema d'amenagement et de developpement ou de
I'entree en vigueur du plan d'urbanisme original ou de la modification ou de la revision du plan.
[. . .]124.Every by-law to which this section applies shall be adopted in draft form by the
council of the municipality.
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124.Le conseil de la municipalite adopte un projet de tout reglement a I'egard duquel s'applique
Ie present article.
[. . .]
125.The municipality shall hold a public meeting in connection with the draft by-law, presided by
the mayor or by a member of the council designated by the mayor.
The date, time and place of the meeting shall be fixed by the council, which may delegate all
or part of this power to the clerk or secretary-treasurer of the municipality.125.La municipalite
tient une assemblee publique sur Ie projet de reglement par I'intermediaire du maire ou d'un
autre membre du conseil designe par Ie maire.
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Le conseil fixe la date, I'heure et Ie lieu de I'assemblee; il peut deleguer tout ou partie de ce
pouvoir au greffier ou au secretaire-tresorier de la municipalite.
126.At least seven days before the public meeting is held, the clerk or secretary-treasurer of the
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municipality shall post, in the office of the municipality, a notice setting out the date, time, place
and object of the meeting, and publish it in a newspaper circulated in its territory.
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126.Au plus tard Ie septieme jour qui precede la tenue de I'assemblee publique, Ie greffier ou
secretaire-tresorier de la municipalite affiche au bureau de celle-ci et publie dans un journal
diffuse sur son territoire un avis de la date, de I'heure, du lieu et de I'objet de I'assemblee.
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[. . .]127.During the public meeting, the person presiding must explain the draft by-law and
hear every person or body wishing to express an opinion.
127.Au cours de I'assemblee publique, celui par I'intermediaire duquel elle est tenue explique Ie
projet de reglement et entend les personnes et organismes qui desirent s'exprimer.Where the
draft by-law contains a provision making it a by-law subject to approval by way of referendum,
the person responsible for explaining the draft by-law shall identify that provision and explain
the nature of and means of exercising the right of certain persons to make an application,
pursuant to the provisions of subdivision 2, for any by-law containing that provision to be
submitted for the approval of certain qualified voters.Lorsque Ie projet contient une disposition
propre a un reglement susceptible d'approbation referendaire, la personne chargee de
I'explication du projet identifie cette disposition et explique la nature et les modalites d'exercice
du droit de certaines personnes de demander, conformement aux dispositions de la sous-
section 2, que tout reglement contenant cette disposition soit soumis a I'approbation de
certaines personnes habiles a voter.128.0nce the public meeting on a draft by-law containing a
provision making it a by-law subject to approval by way of referendum has been held, the
council of the municipality shall adopt, with or without change, a second draft by-law. No such
provision may be included in the second draft by-law unless it relates to a matter in respect of
which such a
provision was included in the first draft by-law.128.Apres la tenue de I'assemblee publique
portant sur un projet de reglement qui contient une disposition propre a un reglement
susceptible d'approbation referenda ire, Ie conseil de la municipalite adopte, avec ou sans
changement, un second projet de reglement. Celui-ci ne peut contenir une telle disposition
portant sur un sujet que
si ce dernier a fait I'objet d'une telle disposition contenue dans Ie premier projet.However, the
council is not bound to adopt a second draft by-law if the by-law it adopts under section 134 no
longer contains any provision making it a by-law subject to approval by way of referendum.
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Toutefois, Ie conseil n'est pas tenu d'adopter un second projet lorsque Ie reglement qu'il adopte
en vertu de I'article 134 ne contient aucune disposition propre a un reglement susceptible
d'approbation referendaire contenue dans Ie premier projet.
[. . .]
129.A summary of the second draft by-law may be produced under the responsibility of the
municipality.
129.Un resume du second projet de reglement peut etre produit sous la responsabilite de la
municipalite.
[. . .]
130.lf the second draft by-law contains a provIsion making the by-law a by-law subject to
approval by way of referendum, an application may be made under this section and under
sections 131 and 133 to require that any by-law containing the provision that is adopted under
section 136 be submitted for the approval of certain qualified voters.
. . .130.Toute disposition propre a un reglement susceptible d'approbation referendaire qui
est contenue dans Ie second projet de reglement peut faire I'objet, conformement au present
article et aux articles 131 et 133, d'une demande visant a ce que tout reglement contenant cette
disposition et adopte en vertu de I'article 136 so it soumis a I'approbation de certaines
personnes habiles a voter.
[. . .]
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131.Every interested person in a zone or a sector of a zone may sign an application originating
from that zone or sector.131.Toute personne interessee d'une zone ou d'un secteur de zone
peut signer toute demande qui en provient.For the purposes of this subdivision, an interested
person in a given zone or sector of a zone is a person who would be a qualified voter and
whose name would be entered on the referendum list of the zone or sector if the reference date,
within the meaning of the Act respecting elections and referendums in municipalities (chapter E-
2.2), was the date of adoption of the second draft by-law and if the sector concerned, within the
meaning of that Act, was that zone or sector.
Pour I'application de la presente sous-section, est une personne interessee d'une zone ou d'un
secteur de zone quiconque serait une personne habile a voter ayant Ie droit d'etre inscrite sur la
liste referendaire de la zone ou du secteur de zone si la date de reference, au sens de la Loi
sur les elections et les referendums dans les municipalites (chapitre E-2.2), etait celie de
I'adoption du second projet de reglement et si Ie secteur concerne, au sens de cette loi, etait la
zone ou Ie secteur de zone.132.Following the adoption of the second draft by-law, the clerk or
secretary-treasurer shall, in accordance with the Act governing the municipality for such
purposes, issue a public notice
132.A la suite de I'adoption du second projet de reglement, Ie greffier ou secretaire-tresorier
donne, conformement a la loi qui regit la municipalite en cette matiere, un avis public qui : (1)
setting out the number, title and date of adoption of the second draft by-law;
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1 mentionne Ie numero, Ie titre et la date d'adoption du second projet;(2)giving a brief
description of the object of the provisions in respect of which an application may be made, or
mentioning the fact that a copy of the summary of the second draft by-law may be obtained,
free of charge, by any person who so requests;
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2 decrit brievement I'objet des dispositions qui peuvent faire I'objet d'une demande ou
mentionne Ie fait qu'une copie d'un resume du second projet peut etre obtenue, sans frais, par
toute personne qui en fait la demande;
(3)
(a)stating which interested persons are entitled to sign an application in respect of each
provision and the tenor of an application or, if the object of the provisions is not stated in the
notice, explaining, in a general manner, entitlement to sign an application and the tenor of an
application and stating how information may be obtained to determine which interested persons
are entitled to sign an application in respect of each provision and the tenor of an application;
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(b)setting out the conditions of validity of an application;
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(a)indique quelles personnes interessees ont Ie droit de signer une demande a I'egard de
quelles dispositions et decrit I'objectif de la demande ou, si la description de I'objet des
dispositions n'est pas contenue dans I'avis, explique de fa90n generale Ie droit de signer une
demande et I'objectif de celle-ci et indique la fa90n d'obtenir des renseignements permettant de
determiner quelles personnes interessees ont Ie droit de signer une demande a I'egard de
quelles dispositions et quel est I'objectif de cette demande;
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b)enonce les conditions de validite de toute demande;
(4)determining the interested persons in a zone and the manner in which a legal person may
exercise the right to sign an application, or stating how such information may be
obtained;4explique quelles sont les personnes interessees d'une zone et les modalites
d'exercice par une personne morale du droit de signer une demande ou indique la fa90n
d'obtenir ces renseignements;(5)describing, using street names whenever possible, the
perimeter of each zone from which an application may originate, otherwise than by reason of
the fact that it is contiguous to another zone, illustrating it by means of a sketch, or indicating
the approximate location of the zone and stating the fact that a description or illustration is
available for consultation at the office of the municipality;5en utilisant autant que possible Ie
nom des voies de circulation, soit decrit Ie peri metre de chaque zone d'ou peut provenir une
demande, autrement qu'en raison du seul fait qu'elle est contigue a une autre, ou I'illustre par
croquis, soit indique I'endroit approximatif ou la zone est situee et mentionne Ie fait que la
description ou I'illustration peut etre consultee au bureau de la municipalite;(6)mentioning the
fact that the provisions in respect of which no valid application is received may be included in a
by-law that is not required to be submitted for the approval of the qualified voters;
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6 mentionne Ie fait que les dispositions qui n'auront fait I'objet d'aucune demande valide
pourront etre incluses dans un reglement qui n'aura pas a etre approuve par les personnes
habiles a voter;
(7)stating the place, dates and times at which the second draft by-law is available for
consultation.
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7 mentionne I'endroit, les jours et les heures ou Ie second projet peut etre consulte.
[. . .]
133.An application, in order to be valid, must
133.Pour etre valide, une demande doit remplir les conditions suivantes :(1 )state clearly the
provision to which it refers and the zone or sector of a zone from which it originates;
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1 indiquer clairement la disposition qui en fait I'objet et la zone ou Ie secteur de zone d'ou elle
provient;(2)be signed by at least 12 interested persons in a zone or sector in which there are
more than 21 interested persons, or, in other cases, by a majority of the interested
persons;2etre signee, dans Ie cas ou il y a plus de 21 personnes interessees de la zone ou du
secteur de zone d'ou elle provient, par au moins 12 d'entre elles ou, dans Ie cas contraire, par
au moins la majorite d'entre elles;(3)be received by the municipality not later than the eighth day
following the day on which the notice provided for in section 132 is published.3etre re(fue par la
municipalite au plus tard Ie huitieme jour qui suit celui ou est publie I'avis prevu a I'article
132.The provisions of the Act respecting elections and referendums in municipalities
(chapter E-2.2) dealing with the manner in which a legal person may exercise its rights, the
manner in which qualified voters entitled to have their names entered on the referendum list are
to be counted, and applications for the holding of a referendum poll apply, adapted as required,
to the signing of an application.les dispositions de la Loi sur les elections et les referendums
dans les municipalites (chapitre E-2.2) qui concernent la fa(fon pour une personne morale
d'exercer ses droits et la fa(fon de campter les personnes habiles a voter ayant Ie droit d'etre
inscrites sur la liste referendaire et les demandes de tenue d'un scrutin referenda ire
s'appliquent, compte tenu des adaptations necessaires, a la signature de la demande.Appeal
allowed with costs, MAJOR, BASTARACHE, LEBEL and DESCHAMPS JJ. dissenting.
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Solicitor for the appellants: Andre Carbonneau, Montreal.
Solicitors for the respondents Municipalite du village de Lafontaine and Harold
Larente: Deveau, Bissonnette, Monfette, Fortin & Associes, Saint-Jerome.
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Solicitors for the respondent the Attorney General of Quebec: Bernard, Roy & Associes,
Montreal.
Solicitors for the interveners the Seventh-Day Adventist Church in Canada and the
Evangelical Fellowship of Canada: Chipeur Advocates, Calgary.
Solicitors for the intervener the Canadian Civil Uberties Association: Paliare Roland
Rosenberg Rothstein, Toronto.
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The official versions of decisions and reasons for decision by the Supreme
Court of Canada are published in the Supreme Court Reports (S.C.R.). This site is
prepared and published by LexUM in partnership with Supreme Court of Canada.
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HORTON v. CITY OF GREATER SUDBURY
Ontario Court of Appeal
Labrosse, Laskin, Goudge JJ.A.
Heard - March 12,2004
Judgment - May 6, 2004
No. CA C40601
By-laws - Validity - Smoking by-law - City having express authority to enact
by-law under s. 213(2) of Municipal Act, R.S.O. 1990, c. MA5 to regulate
smoking in workplaces - City having implied authority to require employers
to adopt and implement non-smoking policy.
The City of Greater Sudbury enacted a by-law under section 213(2) of the former
Municipal Act [now S.O. 2001, c. 25, s. 115] to regulate smoking in public places
and workplaces. The purpose of the by-law was to protect the public from the
health hazards of second hand smoke. The by-law imposed a general prohibition
against smoking in the workplace and required employers to adopt and implement
a non-smoking policy and to ensure compliance with the by-law. The appellant was
a restaurant/pub owner. The appellant had unsuccessfully applied to have the by-
law quashed in its entirety or only with respect to those provisions related to the
employer's adoption and enforcement of the smoke-free policy for being beyond
the City's powers. He appealed on the basis that the wording of the statute does
not compel him to "adopt" a non-smoking policy.
Held: The appeal was dismissed.
Section 213 of the old Municipal Act did not expressly authorize the City to require
an employer to adopt and implement a non-smoking policy in the workplace.
However, under the modem view of municipal authority, municipalities can exercise
both express powers and necessarily or fairly implied powers. Subsection 213(2)
fairly authorized the City by implication to require employers to adopt and
implement non-smoking workplace policies. The City passed the by-law for a
legitimate municipal purpose and, as such, its decision should be reviewed
deferentially. The express power to prohibit smoking in workplaces carried with it
the implied power to require that employers adopt and implement a non-smoking
policy. The burdens imposed under the City's by-law were hardly onerous to
employers. The by-law was intra vires the City's power and impliedly authorized
under s. 213(2).
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DATE: 20040506
DOCKET: C40601
COURT OF APPEAL FOR ONTARIO
LABROSSE, LASKIN and GOUDGE JJ.A.
Applicant
(Appellant)
)
)
) T. Michael Hennessy
) for the appellant
)
)
)
)
)
)
) Stephen Vrbanac
) for the respondent
)
)
)
) Heard: March 12,2004
BETWEEN:
DAVID HORTON
- and -
CITY OF GREATER SUDBURY
Respondent
On appeal from the judgment of Justice Lawrence C. Kozak of the Superior Court
of Justice dated August 5, 2003.
LASKIN J.A.:
A. Introduction
[1] Section 213(2) of the Municipal Actl authorizes municipalities to pass by-laws
prohibiting smoking in public places and workplaces. In November 2002 the City of
Greater Sudbury passed a "Smoke Free Public Places and Workplaces By-law". This
by-law requires employers to "adopt and implement a non-smoking policy" in their
workplaces. David Horton, the owner of a local pub and restaurant, challenged the
By-law. He acknowledged that the City can prohibit smoking in his workplace, but he
contends that it cannot compel him to adopt a written policy. The application judge,
1 R.S.O. 1990 c. MA5
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Kozak J., held that the challenged provisions ofthe By-law were authorized by ss. 213(2)
and 3(g) of the Municipal Act. Mr. Horton appeals. For the brief reasons that follow I
would dismiss his appeal.
B. Statutory Scheme
[2] In 1994, in response to widespread concern about the health hazards of "second
hand smoke", the Ontario Legislature amended the Municipal Act to permit
municipalities to pass by-laws regulating and prohibiting smoking in public places and
workplaces (S.O. 1994, c. 10, s. 21(2)). The enabling provision, s. 213(2), states:
The council of a local municipality may pass a by-law
regulating the smoking of tobacco in public places and
workplaces within the municipality and designating public
places or workplaces or classes or parts of such places as
places in which smoking tobacco or holding lighted tobacco
is prohibited.
[3] Section 213(3) of the Municipal Act delineates the scope of a municipality's
authority:
A by-law made under subsection (2) may,
(a) define "public place" for the purposes of the by-law;
(b) require a person who owns or occupies a place designated
in the by-law to post signs referring to the prohibition or to
such other information relating to smoking as is required by
the by-law;
(c) prescribe the form and content of signs referred to in
clause (b) and the place and manner in which the signs shall
be posted;
(d) permit persons who own or occupy a place designated in
the by-law to set aside an area that meets criteria prescribed
by the by-law for smoking within the place;
(e) prescribe the criteria applicable to smoking areas in clause
(d), including the standards for the ventilation of such areas;
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(f) require areas set aside for smoking in places designated by
the by-law to be identified as an area where smoking is
permitted; and
(g) require the employer of a workplace or the owner or
occupier of a public place to ensure compliance with the by-
law.
[4] Sudbury's smoking by-law came into effect on May 31, 2003. Part II of the By-
law addresses smoking in the workplace. Sections 7 and 8 set out general prohibitions:
7. When a non-smoking policy has been adopted for a
workplace, no person shall smoke in the workplace.
8. When a non-smoking policy has been adopted for a
workplace, no employer shall permit smoking in the
workplace.
[5] The challenged provisions of the By-law are ss. 9( 1) and 10, which require
employers to "adopt and implement a non-smoking policy" before May 31, 2003, and to
take steps to enforce the policy, including posting it in their workplaces. These sections
state:
9. (1) Every employer shall, on or before May 31, 2003, adopt
and implement a non-smoking policy that prohibits smoking
in respect of each workplace in the City of Greater Sudbury
under the control, supervision or ownership of the employer.
10. Every employer required by this By-law to adopt and
implement a non-smoking policy shall:
a) ensure compliance with this By-law;
b) inform all of the employees that smoking is prohibited in
the workplace except as provided by this By-law;
c) prohibit smoking in the workplace except as provided by
this By-law;
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d) post and keep continuously displayed a copy of the
non-smoking policy in a prominent place(s) accessible to
all employees in the workplace;
e) prohibit ashtrays and like paraphernalia in areas where
smoking is prohibited;
and
f) conspicuously post no smoking signs in areas where
smoking is prohibited, in accordance with Part III of this
By-law.
[6] Under s. 19 of the By-law, an employer who permits smoking in the workplace
contrary to s. 7 is guilty of an offence. Under s. 20 of the By-law an employer who
refuses or fails to perform the duties imposed by the By-law is also guilty of an offence.
C. Discussion
[7] After the amendment to the Municipal Act carne into effect many Ontario
municipalities passed smoking by-laws. Local employers, perceiving that their
businesses would be adversely affected, challenged the validity of several of these by-
laws. Mr. Horton's lawsuit against Sudbury's by-law is the latest ofthese challenges. To
date, these lawsuits have failed: see Cambridge Bingo Centre Inc. v. Waterloo (Regional
Municipality) (2000), 14 M.P.L.R. (3d) 179 (Ont. S.CJ.) challenging Waterloo's
smoking by-law; Thirsty's Bar and Grill v. Waterloo (Regional Municipality) (2000), 14
M.P.L.R. (3d) 207 (Ont. S.C.J.) seeking an injunction to prevent Waterloo from enforcing
its smoking by-law based on bad faith in engaging and enforcing the by-law; Pub and
Bar Coalition of Ontario v. Ottawa (City) (2001), 23 M.P.L.R. (3d) 42 (Ont. S.C.l), aff'd
[2002] OJ. No. 2240 (C.A.) challenging the City of Ottawa's two smoking by-laws; and
R. v. Ample Annie's Itfy Bitfy Roadhouse, [2001] O.l No. 5968 (Ct. J.) challenging the
City of Guelph's smoking by-law.
[8] Mr. Horton submits that the Municipal Act does not authorize Sudbury to compel
him to "adopt" a non-smoking policy. He contends that the word "adopt" requires him to
embrace the City's policy as his own. He does not want to do so and says he cannot be
forced to do so without appropriate language in the Act, which he claims is lacking.
[9] The application judge concluded that the requirement to adopt a non-smoking
policy is "on a broad, liberal and benevolent interpretation of the enabling
legislation...specifically authorized" by s. 213(3)(g) of the Act. Under this subsection a
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smoking by-law may "require the employer of a workplace...to ensure compliance with
the by-law". The application judge explained his conclusion at para. 30 of his reasons:
Accordingly Section 213(3)(g) imposes upon employers the
positive duty to ensure compliance. A benevolent
construction of this provision leads to the reasonable
conclusion that in considering the section as a whole, that
ensuring compliance equates with the requirement that the
employer adopt the City's Smoke Free Policy. Relating the
by-law to the plan or scheme as depicted in the enabling
legislation it can be seen that the by-law fits within the
parameters of the enabling act.
[10] I take a different view. It seems to me that adopting a policy is not the same thing
as ensuring compliance with it. The one precedes the other. Thus, I agree with the
appellant to this extent: the Municipal Act does not "specifically" or expressly authorize
municipalities to require an employer to adopt and implement a non-smoking policy in
the workplace.
[11] However, under the modem view of municipal authority, municipalities now
exercise both express powers and necessarily or fairly implied powers. Iacobucci J.
stated this principle in R. v. Sharma, (1993] I S.C.R. 650 at para. 25:
(A]s statutory bodies, municipalities "may exercise only those
powers expressly conferred by statute, those powers
necessarily or fairly implied by the expressed power in the
statute, and those indispensable powers essential and not
merely convenient to the effectuation of the purposes of the
corporation" [citation omitted].
[12] Since Sharma, the Supreme Court of Canada has affirmed this principle on
numerous occasions: see for example Shell Canada Products Ltd. v. Vancouver (City),
[1994] 1 S.C.R. 231, Pacific National Investments Ltd. v. Victoria (City), [2000) 2 S.C.R.
919 and 114957 Canada Ltee. (Spray tech, Societe d'arrosage) v. Hudson (Town), [2001)
2 S.C.R. 241.
[13] To support its By-law, Sudbury must look to s. 213(2) of the Municipal Act, the
provision that authorizes municipalities to pass by-laws regulating and prohibiting
smoking in the workplace. Applying Sharma, I would frame the question on this appeal
as follows: can it fairly be said that s. 213(2) of the Municipal Act impliedly authorizes
the City of Greater Sudbury to require employers to adopt and implement a non-smoking
policy? I would answer this question in the affirmative.
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[14] My conclusion is driven largely by three considerations: the legitimate purpose of
the By-law, a deferential approach to judicial review of municipal by-laws and the trivial
burden the challenged provisions impose on employers.
[15] The consultation process that led to the passage of Sudbury's smoking by-law
shows that it was passed for a legitimate municipal purpose: to protect the health of its
citizens from the dangers of second hand smoke.
[16] By-laws passed for a legitimate municipal purpose should be reviewed
deferentially. As this court recently affirmed in Toronto (City) v. GoldUst Properties Inc.
(1994),67 O.R. (3d) 441 at para. 57:
[R]ecent jurisprudence...has emphasized the importance of
enhancing local decision-making and avoiding narrow and
technical readings of municipal powers. In 114957 Canada
Ltee. (Spray tech, Societe d'Arrosage) v. Hudson (Town),
[2001] 2 S.C.R. 241, 200 D.L.R. (4th) 419, at para. 21, the
Supreme Court of Canada stated that the courts should accord
municipal powers a liberal and benevolent interpretation, and
that only in the clearest of cases should a municipal by-law be
held to be ultra vires, and approved the dictum of McLachlin
J. in Shell Canada Products Ltd. v. Vancouver (City), [1994]
1 S.C.R. 231, 110 D.L.R. (4th) 1, at para. 19, "barring clear
demonstration that a municipal decision was beyond its
powers, courts should not so hold."
[17] On this view, the requirements of ss. 9(1) and 10 of Sudbury's By-law, that
employers adopt and implement a non-smoking policy and post it in their workplaces, do
not exceed the City's powers under s. 213(2) of the Municipal Act. Put differently, the
express power in s. 213(2) to prohibit smoking in workplaces carries with it the implied
power to require employers to adopt and implement a non-smoking policy, put the policy
in writing and post the policy in their workplaces so that employees and patrons alike will
know the ground rules for smoking.
[18] Moreover, the burden imposed on employers by ss. 9(1) and 10 of the By-law is
hardly onerous. In the context of the By-law, the word "adopt" means no more than
"have". In my view, it does not require the employer to write its own policy or to
endorse the City's policy or to accept the City's view that prohibiting smoking in the
workplace is desirable. Therefore, the challenged provisions of the By-law raise no free
speech or civil liberties concerns. This is evident from the City's guide to the By-law
circulated when the By-law was passed. The guide includes a "sample non-smoking
policy" acceptable to the City. This single page document states simply:
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Effective May 31, 2003, a Non-Smoking Policy will prohibit
smoking in all interior areas of these premises. There will be
no allowance for designated smoking rooms not established
in accordance with City of Greater Sudbury By-law 2001-7L.
Changes to the smoking policy are in accordance with the
City of Greater Sudbury's Smoke-Free Public Places and
Workplaces By-law and are in response to concerns about the
health hazards of second-hand smoke. We hope to help
reduce the potential smoke-related health problems of our
employees by promoting a completely smoke- free work
environment.
Significantly, the bottom of the sample policy has these words: "A non-smoking
workplace policy as required by City of Greater Sudbury By-law 2002-300."
[19] This sample policy confirms that no employer is required to write its own policy.
The words at the bottom confirm that by adopting and even posting a non-smoking
policy, an employer is not endorsing the City's policy, but simply adhering to the By-law.
[20] For these reasons I would reject the appellant's contention that Sudbury's smoking
by-law exceeds the municipality's powers under s. 213(2) of the Municipal Act.
D. Conclusion
[21] In my view, ss. 9( 1) and 10 of the City of Greater Sudbury's Smoke Free Public
Places and Workplaces by-law are impliedly authorized by s. 213(2) of the Municipal
Act. 1 would, therefore, dismiss the appeal with costs to the City on a partial indemnity
basis in the agreed on amount of$10,000 inclusive of disbursements and GST.
RELEASED: May 6, 2004
"JL"
"John Laskin J.A."
"1 agree J.M. Labrosse J.A."
"1 agree S.T. Goudge lA."
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BROWN v. TORONTO (CITY)
Ontario Court of Appeal
Weiler, Abella, Armstrong JJ.A.
Heard -April 15, 2004
Judgment - April 23, 2004
No. CA C40359
Actions - Notice of action - Computation of time - Last day to provide notice
of accident under s. 284(5) of Municipal Act, R.S.O. 1990, c. M.45, not a
holiday - No basis to extend time for giving notice - Interpretation Act, R.S.O.
1990, c. 1.11, s. 28(h).
The respondent fell on snow or ice on a sidewalk within the City of Toronto. Ten
days later she served the City with notice of the accident. The City brought a
motion for summary judgment on the basis that the notice was beyond the 7 -day
limitation period under s. 284(5) of the old Municipal Act [now 10 days under subs.
44(10) of S.O. 2001, c. 25]. The seventh day was Christmas Eve and the City
Clerk's office was open. The City's motion was dismissed on the grounds that the
respondent's notice was timely because December 22 and 23 were a Saturday and
Sunday and Christmas Day and Boxing Day were all holidays and should be
excluded from the computation of the 7 days. The City of Toronto appealed.
Held: The appeal was allowed and the action was dismissed.
The Court of Appeal essentially held that whether the intervening days were
defined "holidays" was immaterial. The computation of time under the Ontario
Rules of Civil Procedure did not apply as the notice period under s. 284(5) of the
Municipal Act did not specify "less than 7 days". The calculation of time was
governed by s. 28(h) of the Interpretation Act. The last day of the stipulated period
was not a holiday and, therefore, there was no basis for extending the time for
service of the notice.
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DATE: 20040423
DOCKET: C40359
COURT OF APPEAL FOR ONTARIO
WEILER, ABELLA and ARMSTRONG JJ.A.
BETWEEN: )
)
HERMINE BROWN ) Avril Allen,
) for the appellant
Plaintiff (Respondent) )
)
- and - )
)
THE CITY OF TORONTO ) Joel P. Freedman,
) for the respondent
Defendant (Appellant) )
)
) Heard: April 15, 2004
On appeal from the Order of Justice Faye E. McWatt of the Superior Court of Justice
dated July 16,2003.
ABELLA J.A.:
[1] On Monday, December 17, 2001, Hermine Brown fell on snow or ice on a
municipal sidewalk. On December 27, 2001, ten days later, Ms. Brown served the City
with written notice of the accident. The issue in this appeal is whether the action is
barred by s. 284(5) of the Municipal Act, R.S.O. 1990, c. MA5, which requires that notice
of a claim be sent or served within seven days of the accident. This section states:
No action shall be brought for the recovery of the damages
mentioned in subsection (1) unless notice in writing of the
claim and of the injury complained of has been served upon
or sent by registered mail to the head or the clerk of the
corporation, in the case of a county or township within ten
days, and in the case of an urban municipality within seven
days, after the happening of the injury, nor unless, where the
claim is against two or more corporations jointly liable for the
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repair of the highway or bridge, the prescribed notice was
given to each of them within the prescribed time. I
[2] The City brought a motion for summary judgment, arguing that on Monday,
December 24,2001, the seventh day following the accident, the City Clerk's Office was
open its usual hours, from 8:30 a.m. until 4:30 p.m.
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[3] The City's motion was dismissed on the basis that Ms. Brown's notice was timely.
In holding that the seven day deadline had been met, the motions judge concluded that
because Saturday December 22, Sunday December 23, Christmas Day and Boxing Day
were holidays, they should be excluded from the computation of the seven days. She
relied on the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and in particular on Rule
3.0l(1)(b), which states:
In the computation of time under these rules or an order,
except where a contrary intention appears,
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where a period of less than seven days IS prescribed,
holidays shall not be counted.
[4] This Rule applies only to "the computation of time under these rules or an order".
But the time requirement in this case is imposed by a statute, the Municipal Act, not by
the Rules. Moreover, the notice period in the Municipal Act is seven days, not "less than
seven days". Rule 3.01(1)(b), therefore, does not apply to the calculation of the time for
service of notice of a claim under the Municipal Act.
[5] Such a calculation is governed by s. 28(h) of the Interpretation Act, R.S.O. 1990,
c. 1.11, which provides:
In every Act, unless the contrary intention appears,
1 The provision has been amended to change the notice period from seven to ten days. Section 44 of the current
Municipal Act, S.o. 2001, c. 25 states:
(10) No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the
occurrence of the injury, written notice of the claim and ofthe injury complained of has been served upon or sent by
registered mail to,
(a) the clerk of the municipality; or
(b) if the claim is against two or more municipalities jointly responsible for the repair of the highway
or bridge, the clerk of each of the municipalities.
(12) FaiJure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is
reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its
defence.
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where the time limited by an Act for a proceeding or for
the doing of any thing under its provisions expires or falls
upon a holiday, the time so limited extends to and the
thing may be done on the day next following that is not a
holiday.
[6] This means that if, in calculating the seven days, the last day falls on a holiday, the
time is extended to the next day that is not a holiday. It does not mean that the time limit
can be extended by excluding all holidays from the calculation of the seven days.
[7] This methodology is not in conflict with Young v. Mississauga (City) (1993), 16
O.R. (3d) 409 (Gen. Div.). Young deals with the definition of "holiday" only for
purposes of deciding whether to extend the last day of the notice period if it falls on a day
when service is impossible because the municipal offices are closed. That case does not,
with respect, bear the interpretation applied by the motions judge, namely, that the notice
period should be calculated by excluding all holidays.
[8] In this case, the last day of the stipulated period was not a holiday. There was,
therefore, no basis for extending the time for sending or serving the notice.
[9] Accordingly, the appeal is allowed, the order of McWatt J. is set aside, and Ms.
Brown's action is dismissed. In the circumstances, I would not order any costs against
Ms. Brown.
RELEASED:
"APR 23 2004"
"R.S. Abella J.A."
"KMW J.A."
"I agree K.M. Weiler J.A."
"I agree Robert P. Armstrong J.A."
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OWENS v. BRANTFORD (CITY)
Ontario Court of Appeal
Doherty, Laskin, Feldman JJ.A.
Heard - May 5, 2004
Judgment - May 5, 2004 (Orally Released)
No.C40806
Highways and streets - Maintenance and repair - Pedestrians - Duty owed
by municipality to pedestrians not extending to highways intended for
vehicular traffic - Municipal Act, R.S.O. 1990, c. M.45, s. 284.
The appellant twisted her ankle by stepping off a ledge approximately 1 Y2 to 2
inches deep on a roadway owned by the City of Brantford. At the time of the
incident, the roadway was being repaired and the City was awaiting the first layer of
pavement material to settle prior to filling in the final layer. When the plaintiff tripped
or fell, both of her feet were on the roadway, away from the curb. Her claim was
dismissed at trial and she appealed.
Held: The appeal was dismissed.
A unanimous Ontario Court of Appeal agreed with the trial judge that the City was
only seeking to do in law what it was required to do under the legislation. The City
was maintaining the highway in a state of repair so that those who used the
highway could do so safely. The place where the accident occurred was not
designated for the use of pedestrians. Those people who walked on the roadway
had to take it as being designed for vehicular and not pedestrian traffic. The City's
duty to repair under s. 284 of the former Municipal Act [now. S.O. 2001, c. 25, s.
44] could not extend to pedestrian traffic at the location of the plaintiff's accident.
Notwithstanding its ruling, the Court of Appeal cautioned that it "should not be taken
as accepting that the municipality's duty to repair extends to pedestrians only at
areas specifically designated for pedestrian traffic."
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DATE: 20040510
DOCKET: C40806
COURT OF APPEAL FOR ONTARIO
RE:
JANET LEE OWENS (Appellant) v. THE CORPORATION OF
THE CITY OF BRANTFORD (Respondent)
BEFORE:
DOHERTY, LASKIN and FELDMAN n.A.
COUNSEL:
Karl Beyer
for the appellant
Brian Grant
for the respondent
HEARD:
May 5, 2004
ORALLY
RELEASED:
May 5, 2004
On appeal from the judgment of Justice B.H. Matheson of the Superior Court of Justice,
dated September 25,2003.
lto '20
ENDORSEMENT
[1] We agree with the trial judge's approach. The municipality's duty to the plaintiff
is rooted in its statutory duty to repair found in s. 284 of the Municipal Act, R.S.O. 1990,
c.MA.
[2J On the uncontested facts, there was no basis upon which the municipality's duty to
repair under s. 284 could extend to pedestrian traffic at the location ofthe accident. In so
holding, we should not be taken as accepting that the municipality's duty to repair
extends to pedestrians only at areas specifically designated for pedestrian traffic. As the
section says, the municipality:
shall keep roads in the state of repair that is reasonable in
light of all of the circumstances, including the character and
location of the highway or bridge [emphasis added].
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[3] In the result, we dismiss the appeal.
[4] Costs to the respondent in the amount of $4,300.00.
"Doherty J .A."
"John Laskin J.A.
"K. Feldman J.A."
6
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ALLEN v. RENFREW (COUNTY)
Ontario Superior Court of Justice
Hackland J.
Heard - December 18, 2003
Judgment - February 10, 2004
No. Pembroke 00/1269
Council meetings - Prayers - County council reciting non-secular prayer at
commencement of meetings - Purpose of prayer not to coerce or compel
religious observance - Right to freedom of religion under s. 2(a) of
Canadian Charter of Rights and Freedoms not violated.
The respondent County Council commenced its monthly meetings with a prayer.
In response to the Ontario Court of Appeal's decision in Freitag v.
Penetanguishene (Town) (1999), 4 M.P.L.R. (3d) 1, the Council adopted a non-
secular prayer in place of the Lord's Prayer. The non-secular prayer it chose was
very similar to the prayer to God recited in both the Ontario Legislature and the
House of Commons. A county resident who did not believe in God applied for a
declaration that the Council's practice violated his right to freedom of conscience
and religion under s. 2(a) of the Canadian Charter of Rights and Freedoms.
Held: The application was dismissed.
The Court determined that, while a reading of the prayer by Council could be
characterized as an effort to impose a moral tone on the proceedings, the mere
mention of God in the prayer could not be seen as a coercive effort to compel
religious observance. The Court held that it would be incongruous and contrary
to the intent of the Charter to hold that the practice of offering a prayer to God
constituted a violation of the religious freedom of non-believers. The effect of the
recital of the prayer did not compel the applicant to participate in a Christian or
other denominational form of worship, which was the test imposed by Freitag.
The application was dismissed as the practice of reciting a prayer at the
commencement of County Council's meetings did not infringe s. 2(a) of the
Charter and, in any event, would have been protected as a demonstrably
justifiable limit under s. 1.
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2004 CarswellOnt 1173
Page 1 ofl0
2004 CarswellOnt 1173
Allen v. Renfrew (County)
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ROBERT ALLEN (Applicant) and CORPORATION OF THE COUNTY OF RENFREW (Respondent)
Ontario Superior Court of Justice
Hackland J.
Heard: December 18, 2003
Judgment: February 10, 2004
Docket: Pembroke 00/1269
Copyright @ CARSWELL,
a Division of Thomson Canada Ltd. or its Licensors. All rights reserved.
Counsel: Daniel Mayo for Applicant
David A. Stewart for Respondent
Subject: Constitutional; Public; Civil Practice and Procedure
Constitutional law _n Charter of Rights and Freedoms -- Nature of rights and freedoms -- Freedom
of conscience and religion
Secular humanist resident of county occasionally attended council meetings n Council began
meetings with non-denominational prayer addressed to God -- Resident applied for declaration that
practice violated his right to freedom of religion -- Application dismissed n Purpose of practice was
not to impose specific religious beliefs or religious moral tone -- Prayer was not coercive effort to
compel religious observance despite implication that God was source of values referred to in prayer -
- Prayer to God was not per se violation of religious freedom of non-believers -- Preamble to Charter
makes reference to supremacy of God -- Practice of referring to God in other public governmental
activities was prevalent -- Effect of prayer was not to impose any burden on applicant or restriction
on exercise of his beliefs.
Municipal law --- Municipal council n Meetings of council -- Practice and procedure -- General
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Secular humanist resident of county occasionally attended council meetings -- Council began
meetings with non-denominational prayer addressed to God -- Resident applied for declaration that
practice violated his right to freedom of religion guaranteed by Canadian Charter of Rights and
Freedoms n Application dismissed -- Purpose of practice was not to impose specific religious beliefs
or religious moral tone -- Prayer was not coercive effort to compel religious observance despite
implication that God was source of values referred to in prayer -- Prayer to God was not per se
violation of religious freedom of non-believers n Preamble to Charter makes reference to supremacy
of God n Practice of referring to God in other public governmental activities was prevalent n Effect
of prayer was not to impose any burden on applicant or restriction on exercise of his beliefs.
Cases considered by Hack/and J.:
Freitag v. Penetanguishene (Town) (1999), 1999 CarswellOnt 2911. 4 M.P.L.R. (3d) 1,67
C.R.R. (2d) 1. 179 D.L.R. (4th) 150. 125 O.A.C. 139.47 O.R. (3d) 301 (Ont. C.A.) --
followed
New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) (1993),
146 N.R. 161. 13 C.R.R. (2d) 1. 100 D.L.R. (4th) 212, 118 N.S.R. (2d) 181. 327 A.P.R. 181,
[1993] 1 S.C.R. 319, 1993 CarswellNS 417, 1993
CarswellNS 417F (S.C.c.) -- considered
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Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001),
146 O.A.e. 125, 2001 CarswellOnt 1985, 201 D.L.R. (4th) 698, 54 O.R. (3d) 595, 85 e.R.R.
(2d) 170, 33 Admin. L.R. (3d) 123.40 e.H.R.R. D/246 (Ont. C.A.) -- considered
R. v. Big M Drug Mart Ltd. (1985), [1985] 1 S.e.R. 295, 18 D.L.R. (4th) 321, 58 N.R. 81.
[1985] 3 W.W.R. 481. 37 Alta. loR. (2d) 97. 60 A.R. 161, 18 e.e.C. (3d) 385, 85 e.L.L.e.
14.023. 13 e.R.R. 64. 1985 CarswellAlta 316, 1985 CarswellAlta 609 (S.e.C.) -- followed
R. v. Campbell (1997), 11 C.P.e. (4th) 1. (sub nom. Reference re Public Sector Pay Reduction
Act (P.E.L), s. 10) 150 D.L.R. (4th) 577.118 e.C.e. (3d) 193, (sub nom. Provincial Court
Judges Assn. (Manitoba) v. Manitoba (Minister of Justice)) 46 e.R.R. (2d) 1. (sub nom.
Reference re Remuneration of Judges of the Provincial Court (P.E.L)) 206 A.R. 1. (sub nom.
Reference re Remuneration of Judges of the Provincial Court (P.E.L)) 156 W.A.e. L 217 N.R.
.L.. (sub nom. Reference re Remuneration of Judges of the Provincial Court (P.E.L)) 156 Nfld. &
P.E.I.R. 1. (sub nom. Reference re Remuneration of Judges of the Provincial Court (P.E.L)) 121
Man. R. (2d) 1. 49 Admin. L.R. (2d) 1, (sub nom.
Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island) [1997J 3
S.e.R. 3. [1997] 10 W.W.R. 417, (sub nom. Reference re Remuneration of Judges of the
Provincial Court (P.E.I.l) 483 A.P.R. 1, 1997 CarswellNat 3038. 1997 CarswellNat 3039 (S.c.e.)
-- considered
R. v. Jones (1986). 69 N.R. 241, [1986] 2 S.C.R. 284, (sub nom. Jones v. R.) 31 D.L.R. (4th)
569. [1986] 6 W.W.R. 577,47 Alta. L.R. (2d) 97, 73 A.R. 133.28 e.e.e. (3d) 513. (sub nom.
Jones v. R.) 25 e.R.R. 63. 1986 CarswellAlta 181, 1986 CarswellAlta 716 (S.e.e.) -- considered
R. v. Oakes (1986). [1986liS.e.R. 103, 26 D.L.R. (4th) 200. 65 N.R. 8], 14 O.A.e. 335. 24
e.C.e. (3d) 321, 50 e.R. (3d) 1, 19 e.R.R. 308, 53 O.R. (2d) 719. 1986 CarswellOnt 95. 1986
CarswellOnt 1001 (S.e.e.) -- followed
Zylberberg v. Sudbury (Board of Education) (1988). 29 O.A.e. 23. 34 e.R.R. 1, 65 O.R. (2d)
641,52 D.L.R. (4th) 577.1988 CarswellOnt 1093 (Ont. e.A.) -- followed
Statutes considered:
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (U.K.), 1982, c. 11
Generally -- considered
Preamble -- considered
s. 1 -- considered
s. 2(a) -- considered
Education Act, R.S.O. 1980, c. 129
Generally -- referred to
Interpretation Act, R.s.e. 1985, c. 1-21
s. 13 -- referred to
Municipal Act, R.S.O. 1990, c. MAS
Generally -- referred to
Human Rights Code, R.s.O. 1990, c. H.19
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Generally -- referred to
APPLICATION by resident of county for declaration that practice of opening council meetings with
prayer violated his rights under Canadian Charter of Rights and Freedoms.
Hack/and J.:
1 The Renfrew County Council commences its monthly meetings with a prayer. This practice has
been followed as long as anyone can remember and likely since the Council was established in 1861.
The prayer recited was the Lord's Prayer until November 2000 when a new non-secular prayer was
adopted in its place. The applicant Robert Allen is a resident of Renfrew County who does not believe
in God or in participation in prayers. He seeks a declaration that the respondent Council's practice of
opening meetings with a prayer is a violation of his Charter right to freedom of conscience and
religion, together with an injunction restraining this practice and damages for mental distress.
Facts:
2 This application was commenced November 28, 2000 (served November 30, 2000) and was
supported by an affidavit of the applicant dated November 17, 2000 and his supplementary affidavit
dated October 23, 2001. The Council filed an affidavit of its chief administrative officer Norman Lemke
dated June 19, 2001. Cross-examination of both deponents occurred on October 23, 2001. The relief
originally sought by the applicant related to the Council's use of the Lord's Prayer and was premised on
the belief that the judgment of the Court of Appeal in Freitag v. Penetanguishene (Town) (1999), 47
O.R. (3d) 301 (Ont. C.A.) ("Freitag "), had held that the practise of opening a municipal meeting with
the Lord's Prayer, being a Christian prayer, violated the rights of non-Christians to freedom of
conscience and religion, contrary to section 2(a) of the Canadian Charter of Rights and Freedoms ("The
Charter"). The evidence discloses that the Council, mindful of the Freitag decision and of the
applicant's previously voiced objections to the use of the Lord's Prayer, passed a motion substituting
what they believed to be a non-secular prayer based on a prayer in use in the Parliament of Canada.
This was done by Council resolution dated November 29, 2000, the day prior to service of this
application.
3 I quote the Council resolution, as well as the "non-sectarian prayer" adopted by Council, which
has been recited at the opening of Council meetings since November 29, 2000:
"That the motion of County Council on August 30, 2000 "that County Council continue to open
County Council sessions with the recitation of the Lord's Prayer until such time as County of
Renfrew Procedural By-law 21-99 is amended by a vote of County Council" be rescinded and
that the following non-sectarian prayer, as practised by the House of Commons, be utilized to
open meetings of County Council as per the Procedural By-law and in recognition of County
Council's efforts to ensure that County Council operates in a non-discriminatory manner:
Almighty God, we give thanks for the great blessings which have been bestowed on Canada
and its citizens, including the gifts of freedom, opportunity, and peace that we enjoy. Guide
us in our deliberations as [County Councillors], and strengthen us in our awareness of our
duties and responsibilities. Grant us wisdom, knowledge, and understanding to preserve the
blessings of this country for the benefit of all and to make good laws and wise decisions.
Amen.
4 As noted, the practice of reciting the Lord's Prayer at the opening of Council meetings was
discontinued in favour of the new prayer the day prior to this application being served. Applicant's
counsel proceeded on the bases that the applicant is seeking the same relief set out in the Notice of
Application in relation to the new prayer, as he argues that the new prayer also violates his client's
Charter right to freedom of conscience and religion as enunciated in Freitag. This was not opposed by
respondent's counsel and accordingly I will proceed on that basis. I think that it is clear that any issues
arising out of the previous use of the Lord's Prayer are moot, except in relation to the applicant's claim
for damages, if he succeeds in establishing a breach of his Charter rights.
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5 It is necessary to review the Court of Appeal's reasons in Freitag, as that case is factually similar
to the current application and addresses many of the same issues. In Freitag, the respondent
municipality opened its meetings with the Lord's Prayer. The appellant was a non-Christian who
attended Council meetings and who was displeased at being, in effect, coerced to participate in the
recital of a Christian prayer. The Court noted that the by-law requiring a prayer was authorized by the
Municipal Act and the authority of the mayor to conduct the meetings derived from the same Act.
Accordingly, the Court concluded that when the mayor opened the meetings with the Lord's Prayer, his
action was "governmental conduct by a government official in a government meeting", and was
therefore subject to Charter scrutiny. This reasoning applies directly to this application in which the
County clerk leads the recital of the prayer as contemplated by the County's procedural by-law 21-99,
enacted pursuant to the provisions of the Municipal Act.
6 The Court in Freitag posed the two questions which must be addressed in determining whether an
infringement of section 2(a) of the Charter has occurred.
(a) Does the purpose of the town's practice violate section 2(a) of the Charter?
(b) Does the effect of the town's practice infringe the rights of the appellant under section 2(a)
of the Charter?
7 The Court concluded on the evidence before it that the purpose of reciting the Lord's Prayer at the
opening of Council meetings was "to impose a Christian moral tone on the deliberations of Council".
Reliance was placed on an earlier decision of the Court of Appeal in Zylberberg v. Sudbury (Board of
Education) (1988). 65 O.R. (2d) 641 (ant. C.A.) ("Zvlberberg "), which dealt with the constitutionality
of a regulation under the Education Act, R.S.O. 1980, chapter C129, which allowed the Sudbury Board
of Education to prescribe Christian religious exercises, such as bible reading and the recitation of the
Lord's Prayer, as part of opening exercises in public schools. The Court in Zylberberg noted that the
Lord's Prayer was a Christian prayer and its recitation and the reading of scriptures from the bible was
to "impose Christian observances on non-Christians and religious observances on non-believers". The
regulation was therefore held to violate the applicant's freedom of conscience and religion in section 2
(a) of the Charter.
8 The Court in Freitag went on to clarify that when the purpose of the legislation or governmental
action is to compel religious observance, then it cannot be justified under section 1 of the Charter
which provides:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
The Court also held that even if section 1 of the Charter could be relied on there could be no limit
"prescribed by law" for the Court to assess in circumstances where the governmental action, i.e.
reciting the Lord's Prayer, was not required by legislation, nor was any common law rule involved.
Feldman J.A. did suggest, by way of obiter, that a non-denominational prayer and a moment of silence
could meet the criteria of minimal impairment of the applicant's Charter Rights in accordance with the
analysis of the Supreme Court of Canada in R. v. Oakes. [1986J 1 S.C.R. 103, 26 D.L.R. (4th) 200
(S.c.c.). Feldman J.A stated at page 316-17:
For the purpose of the analysis [in ZylberbergJ the court addressed what it considered to be
the most vulnerable element of the Oakes test for the respondent, that is, whether the
infringing section minimally impaired the appellants' freedoms, and concluded that it did not.
Similarly in this case, the purposes articulated by the mayor for opening the meetings of the
Town Council with the Lord's Prayer could be served, for example, by a non-denominational
prayer and a moment of silence, simrlar to the current practice of the House of Commons.
Therefore, the recitation of a denominational prayer does not minimally impair the appellant's
freedom.
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23 As I have concluded that the purpose of this prayer was not to impose a Christian or other
denominational religious stamp on the proceedings of the Renfrew Council, I must proceed to consider
whether this is the effect of the use of this prayer.
24 The applicant is a resident and property owner in Renfrew County who occasionally attends
Council meetings. He deposes that the Council's practise of praying at Council meetings has caused
him feelings of mental anguish and discrimination. On reviewing the transcript of his cross-
examination, it appears that his feelings are based on his knowledge of the Council's practise and his
unhappiness with the content of certain letters to newspapers which were sent when these issues
became the subject of public discussion.
25 The essence of freedom of religion is the right to practice ones beliefs free of state coercion or
constraint. The seminal case on this subject is R. v. Big M Drug Mart Ltd.. [1985] 1 S.C.R. 295
(S.c.c.) where Dickson J. stated:
The essence of the concept of freedom of religion is the right to entertain such religious beliefs
as a person chooses, the right to declare religious
beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious
belief by worship and practice or by teaching and dissemination. But the concept means more
than that.
Freedom can primarily be characterized by the absence of coercion or constraint. If a person is
compelled by the state or the will of another to a course of action or inaction which he would
not otherwise have chosen, he is not acting of his own volition and he cannot be said to be
truly free. One of the major purposes of the Charter is to protect, within reason, from
compulsion or restrain. Coercion includes not only such blatant forms of compulsion as direct
commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of
control which determine or limit alternative courses of conduct available to others. Freedom in
a broad sense embraces both the absence of coercion and constraint, and the right to manifest
beliefs and practices. Freedom means that, subject to such limitations as are necessary to
protect public safety, order, health, or morals, or the fundamental rights and freedoms of
others, no one is to be forced to act in a way contrary to his beliefs or his conscience.
What may appear good and true to a majoritarian religious group, or to the state acting at their
behest, may not, for religious reasons, be imposed upon
citizens who take a contrary view. The Charter safeguards religious minorities from the threat
of "the tyranny of the majority."
Dickson J. went on to point out in words that are particularly relevant to the present application, that
not every burden on religious practise is offensive to the Charter guarantee of freedom of religion. He
stated at s. 759 S.C.R.:
This does not mean, however, that every burden on religious practices is offensive to the
constitutional guarantee of freedom of religion. It means only that indirect or unintentional
burdens will not be held to be outside the scope of Charter protection on that account alone.
Section 2(a) does not require the legislatures to eliminate every miniscule state-imposed cost
associated with the practice of religion. Otherwise, the Charter would offer protection from
innocuous secular legislation such as a taxation act to impose a modest sales tax extending to
all products, including those used in the course of religious worship. In my opinion, it is
unnecessary to turn to s. 1 in order to justify legislation of that sort. The purpose of s. 2(a) is
to ensure that society does not interfere with profoundly personal beliefs that govern one's
perception of oneself, humankind, nature, and, in some cases, a higher or different order of
being. These beliefs, in turn, govern one's conduct and practices. The Constitution shelters
individuals and groups only to the extent that religious
beliefs or conduct might reasonably or actually be threatened. For a state-imposed cost or
burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or
practice. In short, legislative or administrative action which increases the cost of practising or
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otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial:
see, on this point, R. v Jones, [1986] 2 S.C.R. 284, per Wilson J at p. 314.
26 While there is no question that the principles protected by sec. 2(a) of the Charter include the
right to be free from direct or indirect coercion to act in a way contrary to one's beliefs and the
freedom not to conform to the religious practices of the majority, including in the context of public
County Council meetings, this does not mean that every minor affront to one's beliefs is a violation of
one's freedom of religion as protected by the Charter. As Wilson J stated in R. v. JonesJ1986] 2
S.C.R. 284 (S.c.c.) at p 314, "Legislative or administrative action whose effect on religion is trivial or
insubstantial is not, in my view, a breach of freedom of religion."
27 The prayer in its present form is not in substance a religious observance, coercive or otherwise
and it does not impose any burden on the applicant or any restriction on his exercise of his own
beliefs. The recital of this prayer does not compel the applicant, in contrast to Freitag, to participate in
a Christian or other denominational form of worship. The mere mention of God in the prayer in
question is not in this Court's opinion, sufficient in its effect on the applicant to interfere in any
material way with his religious beliefs.
28 In the event that contrary to this Court's opinion, the Council's practise of reciting this prayer is
in contravention of the applicant's right to freedom of religion in sec 2(a) of the Charter, the question
arises as to whether the practice can be justified as a reasonable limit prescribed by law which "can be
demonstratively justified in a free and democratic society" under section 1 of the Charter.
29 The Council's procedural by-law 21-99 (authorized by the Municipal Act) does require that "a
prayer" be recited at Council meetings and, as noted, this may imply a reference to God. The by-law
does not impose any form of limitation on the content of the prayer or the circumstances of its recital
other than to contemplate its recital immediately after the meeting is called to order and before items
of business are addressed. There is a common law rule or limitation in force deriving from Freitag,
which I discern to be that the recital of a prayer at a government meeting must not amount to a
coercive effort to compel religious observance. As to the analysis in R v Oakes (supra), the test of
whether the infringing legislation or practise minimally impairs the applicants freedoms is, in my view,
satisfactorily met by the use of a non-denominational (even if not non-secular) prayer, as suggested
by the Feldman J.A. in Freitag. This prayer was not followed by a moment of silent contemplation,
which would have been preferable, but this omission by itself is not fatal. Accordingly, I would
conclude that the practice of reciting the prayer in question at the commencement of the Council's
meeting, even if in contravention of sec. 2(a) of the Charter, is nevertheless protected by sec. 1 of the
Charter.
Disposition:
30 In the result, the applicant's motion for declaratory and injunctive relief and damages is
dismissed. The applicant, while unsuccessful, has in good faith brought before the Court a legitimate
and important issue concerning the application of section 2(a) of the Charter to the practise of reciting
prayers at governmental functions. I exercise my discretion and decline to award costs.
Application dismissed.
END OF DOCUMENT
Copr. (c) West 2004 No Claim to Orig. Govt. Works
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CARROCCI v. MCDOUGALL (TOWNSHIP)
Ontario Superior Court of Justice
O'Neill J.
Heard - March 3, 2004
Judgment - May 18, 2004
No. CV -2004-46
Tax sales -Invalidating sale - Non-compliance - Township accepting tender
and accompanying deposit that was a fraction of one cent less than minimum
mandatory required amount under s. 6(1)(b) of O. Reg. 181/03 under
Municipal Act, 2001, S.O. 2001, c. 25 - Tender not in accordance with
regulatory requirements and sale invalidated.
The applicant submitted a bid for a tax sale property in the amount of $21,000.00.
The tender was accompanied by a bid deposit of $5000.00 (which exceeded 20 per
cent of the tender amount, as required pursuant to s. 6(1)(b) of O. Reg. 181/03
under the Municipal Act, 2001). Another tender, in the amount of $22,100.99, with a
deposit of $4,420.19, was accepted by the respondent township. The applicant
submitted that the deposit should have been $4,420.20 (one cent more than was
actually tendered) and applied for an order invalidating the sale and other related
relief.
Held: The application was allowed.
The third party's deposit did not meet the requirements of s. 6(1)(b) of O. Reg.
181/03. The deposit had to be at least $4,420.20. The application was not to be
determined in favour of the township on the basis that the amount was trivial or that
it fell within the ambit and operation of the legal maxim of de minimis no cural lex.
Notwithstanding any arguments that the amount was reasonable, fair and in
accordance with business efficacy, the sum tendered was still less than the
minimum mandatory threshold required by s. 6(1 )(b) of O. Reg. 181/03.
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2004 CarswellOnt 2056
Carrocci v. McDougall (Township)
FRANK CARROCCI (Applicant) and THE CORPORATION OF THE TOWNSHIP OF MCDOUGALL
( Respondent)
Ontario Superior Court of Justice
O'Neill J.
Heard: March 3, 2004
Judgment: May 18, 2004
Docket: CV - 2004-46
Copyright @ CARSWELL,
a Division of Thomson Canada Ltd. or its Licensors. All rights reserved.
Counsel: N.B. Roche for Applicant
Martin James for Respondent
Subject: Public; Tax -- Miscellaneous
Municipal law _h Tax sales -- Requirements -- Bidding
Municipality accepted bid of $22,100.99 for land -- Bid was accompanied by deposit of $4,420.19 --
Municipal Tax Sales Rules require that deposit be at least 20 per cent of tender -- Losing bidder
applied to set aside acceptance -- Application granted -- Rules were mandatory -- Deposit of exactly
20 per cent was impossible because Currency Act does not recognize fractions of cent -- Bidder was
not entitled to round fraction down to nearest cent -- Five times amount submitted was only
$22,100.95 h Issue was not subject to maxim of de minimis non curat lex -- Effect on owner of land
of setting aside high bid was not relevant.
Statutes considered:
Currency Act, R.5.C. 1985, c. C-52
Generally -- considered
s. 3(2) [rep. & sub. 1999, c. 4, s. 10] -- considered
Regulations considered:
Municipal Act, 2001, 5.0. 2001, c. 25
Municipal Tax Sales Rules, O. Reg. 181/03
Generally
s. 6(1)(b)
APPLICATION by unsuccessful bidder to set aside municipality's acceptance of tender in tax sale.
O'Neill J.:
1 Can one cent make the difference between a valid tender, and an invalid tender, in relation to a
municipal tax sale conducted under the Municipal Tax Sale Rules? That is the issue that must be
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decided on this motion.
A.Background
2 On February 5th, 2004 the applicant submitted a bid for property in the Corporation of the
Municipality of McDougall (the respondent's proper name), in the sum of $21,000.00. The tender was
accompanied by a bid deposit of $5,000.00.
3 Tenders were opened on February 5th, 2004 at 3:00 p.m. Another tender, in the amount of
$22,100.99, accompanied by a deposit of $4,420.19 was accepted by the defendant municipality. The
applicant objected to the acceptance procedure, on the basis that the tender for $22,100.99 ought to
have been accompanied by a minimum deposit of $4,420.20.
4 This application therefore involves a determination of whether a tender for the purchase of land
pursuant to a tax sale proceeding conducted by a municipality meets the requirements of s. 6(1)(b) of
the Municipal Tax Sales Rules, being Regulation 181/03 enacted pursuant to the provisions of the
Municipal Act, 2001.
B. Analysis
5 Counsel for the municipality is correct when he submits that in matters relating to currency
issues, it is proper and correct to have regard for dollars and cents, and no longer mills. In 1985 the
Currency Act was amended to delete any reference to mills or tenths of a cent. S. 3(2) of the Currency
Act R.5. 1985, c. (-52 now provides:
The denominations of money in the currency of Canada are dollars and cents, the cent being
one one-hundredth of a dollar.
6 Accordingly, counsel submits that it is not appropriate to calculate money matters beyond two
decimal points.
7 S. 6(1)(b) of the Municipal Tax Sales Rules provides:
A tender shall be in Form 7 and shall be,
(b) accompanied by a deposit of at least 20 per cent of the tender amount, which
deposit shall be made by way of money order or by way of bank draft or cheque
certified by a bank or trust corporation;
8 Accordingly, it is the municipality's position that the deposit of $4,420.19 accompanying the
higher tender was a correct deposit, as there is no rule of Jawor business efficacy that requires a
fraction of a cent to be rounded upwards. ($22,100.99 x .20 = $4,220.198)
9 The second argument made by the municipality is that if no guidance is provided under the
Currency Act, then the court ought to choose between two interpretations - the one which is most
reasonable, and promotes business efficacy. It is submitted that in these circumstances, it is desirable
to lean towards an interpretation that results in the highest tender being accepted in a forced sale
situation.
10 There can be no disputing the fact that 20 percent of $21,100.99 equals $4,220.198 cents. The
Municipal Tax Sales Rules are mandatory, and a tender must be accompanied by a deposit of at least
20 percent of the tender amount. The obligation on a person making a tender is to provide a deposit of
at least 20 percent of the tender amount, or at his discretion, in an amount greater than 20 percent.
Accordingly, when the applicant submitted a tender of $21,000.00, he submitted a deposit of
$5,000.00, considerably in excess of 20 percent.
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11 I am not able to accept the defendant's position in this matter/ for the simple fact that if one
were to multiply $4,420.19 times five, to arrive at 100 percent, the resulting amount equals
$22,100.95. If one multiplies $4,420.20 times five, the resulting amount equals $22,101.00.
12 Pursuant to the provisions of s. 3(2) of the Currency Act, it was impossible for the person who
submitted the highest tender to submit a deposit equal to 20 percent/ given that that amount equals
$4,420.198/ a currency not recognized in law. Accordingly, in order to meet the mandatory provisions
of s. 6(1)(b) of the Municipal Tax Sales Rules, the bid deposit had to be in the amount of at least
$4,420.20, even if this meant that arithmetically, the bid deposit exceeded the sum of 20 percent.
13 I am not able to accept the respondent's argument that the position of the applicant respecting a
fraction of a cent is trivial and falls within the ambit and operation of the legal maxim de minimis non
curat lex. Nor can I accept that this application should be determined in favour of the respondent
because it will otherwise negatively impact the owner of the land, as the net amount remaining after
the payment of taxes will be $1,100.99 less than if the higher tender amount is found to be valid.
While the arguments made by the respondent are otherwise reasonable, fair and in accordance with
business efficacy, the fact remains that the sum of $4,420.19 represents a bid deposit of less than 20
percent of the sum of $22,100.99, and accordingly, fails to meet the minimum mandatory threshold
outlined in s. 6(1)(b) of the rules.
C. Conclusion
14 Accordingly, for the reasons herein given, an order and a declaration are herein made for the
relief sought by the applicant in paragraphs l(a), (b), (c), (d), (e) and (f) of the notice of application
issued on March 23rd, 2004. The applicant is awarded the costs of this application, on the partial
indemnity scale, payable on or before June 30, 2004. If the parties are not able to agree on the
amount of these costs, they may fax submissions to the trial co-ordinator's office at Parry Sound, 1-
705-746-6189. The submissions shall consist of not more than ten typewritten pages, inclusive of a bill
of costs. The applicant's submissions shall be sent by May 31st, 2004, and the respondent's
submissions shall be sent by June 7th, 2004. Order and declaration accordingly.
Application granted.
END OF DOCUMENT
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ONTARIO MISSION OF THE DEAF v. BARRIE (CITY)
Ontario Superior Court of Justice
Marchand J.
Heard - March 16-17, 2004
Judgment - March 23, 2004
No. 03-B61 05
Development control - Site plan approval - Reserves - Removal - Discretion
- Municipality not having absolute discretion to refuse to lift 0.3 metre
reserve - Discretion to be exercised in accordance with proper principles and
not for collateral purpose.
The applicant owned a large tract of land within the City of Barrie, part of which was
identified as environmentally significant. As part of the secondary plan process, a
landowner's group (which included the applicant) agreed to resolve a dispute with
the City regarding the timing of the dedication of environmentally significant land
associated with development applications. The parties agreed to a policy whereby
the land would be dedicated to the City as part of the subdivision process. The City
refused to lift a 0.3 metre reserve that was situated alongside the entire westerly
boundary of the applicant's property so that the applicant could access the public
road and municipal services in accordance with a site plan that had been approved
by the Ontario Municipal Board. The city wanted to determine the extent of the
environmentally significant lands that had to be dedicated free of charge to the City.
The City took the position that the 0.3 metre reserve was held solely within its
discretion and that it had no legal duty to lift it. The applicant brought an application
for summary judgment for an order that the City lift the reserve.
Held: The application was allowed.
The City of Barrie contended that as the "owner" of the lands it had reserved onto
itself an absolute right as to the time and place when the reserve could be lifted.
However, the 0.3 metre reserve was acquired by the City only for a specific
purpose and it could not be utilized for a different purpose, especially one which
sought to circumvent a bona fide decision of the Ontario Municipal Board on the
planning merits of a case. A municipality's decision to lift or refuse to lift a 0.3 metre
reserve is not absolute and its discretion must be exercised upon proper principles
and must not be influenced by extraneous, irrelevant or collateral considerations.
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2004 CarswellOnt 1199
Ontario Mission of the Deaf v. Barrie (City)
ONTARIO MISSION OF THE DEAF (Applicant) and THE CORPORATION OF THE CITY OF
BARRIE (Respondent)
Ontario Superior Court of Justice
Marchand J.
Heard: March 16-17, 2004
Judgment: March 23, 2004
Docket: 03-B6105
Copyright @ CARSWELL,
a Division of Thomson Canada Ltd. or its Licensors. All rights reserved.
Counsel: Scott Snider for Applicant
Eric R. Finn for Respondent
Subject: Public; Civil Practice and Procedure
Municipal law --- Powers of municipal corporation -- Extent of powers -- To deal in land -- Dedication
Owner wished to develop portion of property as long term care facility for deaf -- Portion 350 metres
away was to be dedicated as environmental protection lands -- City refused to lift .3 metre reserve
along boundary of property until extent of lands was determined and dedication made _.:. Municipal
Board approved development and found there was no planning justification for tying it to dedication
-- Owner applied for summary judgment for order requiring City to lift reserve -- Application granted
-- There was no genuine issue for trial -- City did not have absolute discretion to withhold consent to
lifting reserve -- City held reserve for purpose of ensuring orderly development in accordance with
principles of Planning Act -- Disposition of other lands was irrelevant and extraneous consideration --
City's refusal was arbitrary and in bad faith to put pressure on owner.
Cases considered by Marchand J.:
Bost Properties Inc. v. Highland West Developments Inc. (2002),2002 CarswellOnt 418.48
R.P.R. (3d) 83 (Ont. S.c.J.) -- considered
Dominion Stores Ltd. v. Etobicoke (Borough) (1982). 135 D.L.R. (3d) 301. 37 O.R. (2d) 661.
19 M.P.L.R. 88, 26 R.P.R. 1. 1982 CarswellOnt 665 (Ont. Div. Ct.) -- referred to
Etobicoke (Borough) Board of Education v. Highbury Developments Ltd. (1958). (sub nom.
Board of Education for Township of Etobicoke v. Highbury Developments Ltd.) [1958) S.C.R.
196. 12 D.L.R. (2d) 145, 1958 CarswellOnt 70 (S.c.c.) -- referred to
Keeping v. Canada (Attorney General) (2003), 2003 NLCA 21, 2003 CarswellNfld 113. 2 Admin.
L.R. (4th) 1. (sub nom. Keeping v. Canada (Minister of Fisheries and Oceans)) 224 Nfld. &
P.E.I.R. 234. (sub nom. Keeping v. Canada (Minister of Fisheries and Oceans)) 669 A.P.R. 234.
226 D.L.R. (4th) 285, 16 C.C.L.T. (3d) 250 (N.L. C.A.) -- referred to
Koenig v. Ontario (Minister of Municipal Affairs) (1994), 24 M.P.L.R. (2d) 261, 21 O.R. (3d)
282.77 O.A.C. 64. 1994 CarswellOnt 636 (Ont. Div. Ct.) -- referred to
Middlesex Centre (Township) v. 1404477 Ontario Inc. (January 7. 2002), Doc. London 31481
(Ont. S.C.J.) -- referred to
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Middlesex Centre (Township) Official Plan Amendment One Foot Reserve, Re (January 8. 1999).
Doc. PL980486, 0980188, 2980132. C980165 (O.M.B.) -- considered
Minto Construction Ltd. v. Nepean (Township) (1977). 2 M.P.L.R. 195. 1977 CarswellOnt 340
(Ont. Div. Ct.) -- considered
Multi-Malls Inc. v. Ontario (Minister of Transportation & Communications) (1976). 14 O.R. (2d)
49, 73 D.L.R. (3d) 18. 1976 CarswellOnt 860 (Ont. C.A.) -- referred to
Oakwood Development Ltd. v. St. Fran<;ois Xavier (Rural Municipality) (1985), (sub nom.
Oakwood Development Ltd. v. Rural Municipality of St. Fran<;ois Xavier) [1985] 2 S.C.R. 164,
(sub nom. Oakwood Development Ltd. v. Rural Municipality of St. Fran<;ois Xavier) 18 Admin.
L.R. 59, (sub nom. Oakwood Development Ltd. v. Rural Municipality of St. Fran<;ois Xavier) 61
N.R. 321, (sub nom. Oakwood Development Ltd. v. Rural Municipality of St. Fran<;ois
Xavier) 20 D.L.R. (4th) 641, (sub nom. Oakwood Development Ltd. v. Rural Municipality of St.
Fran<;ois Xavier) 36 Man. R. (2d) 215, (sub nom. Oakwood Development Ltd. v. St. Franc;ois
Xavier) [1985] 6 W.W.R. 147, (sub nom. Oakwood Development Ltd. v. St. Franc;ois Xavier) 37
R.P.R. 101, (sub nom. Oakwood Development Ltd. v. St. Franc;ois Xavier) 31 M.P.L.R. 1, 1985
CarswellMan 202, 1985 CarswellMan 383 (S.C.c.) -- referred to
Roncarelli v. Duplessis (19521-[1959] S.C.R. 121. 16 D.L.R, (2d) 689, 1959 Carswt:illQ.!Je 37
(S.C.c.) -- referred to
Wasserman v. Hamilton (City) (1965), [1965] 2 O.R. 660. 51 D.L.R. (2d) 585, 1965
CarswellOnt 166 (Ont. H.C.) -- referred to
829972 Ontario Ltd. v. Woodstock (City) (March 9, 1992). Doc. St. Thomas 4737/92 (Ont.
Gen. Div.) -- referred to
Statutes considered:
Planning Act, R.5.0. 1990, c. P.13
Generally -- considered
APPLICATION by owner for summary judgment for order requiring City to lift reserve.
Marchand J.:
RULING
1 The following is my ruling on an application for summary judgment on part of the plaintiffs claim
for a declaration that the defendant lift the 0.3 metre reserve situated alongside the entire westerly
Ontario Mission of the Deaf property boundary running along Royal Parkside Drive in the City of Barrie,
thereby permitting the Ontario Mission of the Deaf access to the Royal Parkside Drive and the
municipal services beneath Royal Parkside Drive in accordance with a site plan approved by the
Ontario Municipal Board on July 10, 2003 as decision order No. 0929 relative to the development of
the long term care facility being 3.52 ha. bounded on the west by Royal Parkside Drive and on the
south by Big Bay Point Road.
2 The owners own a tract of land consisting of some 31.22 hectares which is sandwiched between
Kempenfelt Bay on the north and Big Bay Point Road on the south. They wish to develop the southerly
3.52 hectares as "new long term facility for the deaf community". At present the proposed future
development of their property is the construction of the aforementioned long term care facility for the
deaf (subject property) at the extreme south end of their holding, adjoining a proposed subdivision
exceeding 100 lots to be located immediately to the north of the subject property. North of the
subdivision, a substantial acreage of land is going to be dedicated as environmental protection
property (E.P. land) and north of the EP land, along the Kempenfelt Bay, some acreage is to be left for
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some type of development.
3 It is fair to say that the parties are ad idem that there is a pressing need for new long term care
facilities for the deaf in the community. Apparently, deaf and deaf-blind seniors are housed in facilities
that were not designed for the care of frail seniors who require 24 hour care. The delay in securing the
final municipal approval for the long term care facility (L TCF) is detrimentally affecting the quality of
life that the Ontario Mission of the Deaf (OMD) could provide for deaf seniors.
4 The City is refusing to lift the 0.3 metre reserve until the extent of the "environmental protection
land (EP lands)" located north of the aforementioned subdivision, over 300 feet and 50 metres away
from the LTCF site have been determined and the lands dedicated, free of charge to the City.
5 In so doing, the City is ignoring and seeking to circumvent a decision of the Ontario Municipal
Board issued June 30th, 2003 that there is no planning justification for connecting the approval of the
L TCF and determination and dedication of EP lands. It was the OMB's position that there is no
legitimate planning purpose related to the OMD's LTCF that is served by the City's refusal to lift the 0.3
metre reserve.
6 Following that decision of the OMS, the only condition remaining to the lifting of the one foot
reserve adjoining the westerly limits of the subject property was that,
That the City agrees to lift the 0.3 metre reserve along Royal Park Drive once services are
available within the adjacent plan of subdivision to the west and once the engineering
department has been provided with the required servicing information and plans and approved
same.
7 When specifically put to the task of defining the issue, counsel for the municipality admitted that
the real issue as to why the municipality is resisting to lift the 0.3 metre reservation is to use this as a
lever or an additional arrow in its quiver to force the owner (plaintiff) to come to some agreement in
regards to the quantification of the EP land to be dedicated to the municipality located in the
remainder of their land holding north of the aforementioned proposed subdivision some 350 metres
away from the LTCF site. In essence, it is a negotiating tactic. The City's position to be put bluntly, is
that they are the owners of the said land and as such have an absolute discretion as to whether or not
they are prepared to part with it.
8 The following facts are not in dispute:
(a) There is a pressing need for the development of a new home for the deaf in the
municipality.
(b) That the project has been funded by the province and that the present funding is precarious
and that there is grave concern that unless it is immediately constructed, their funding will be
withdrawn.
(c) That the project has received all municipal approval including official plan approval, zoning
approval, site plan approval and that the services are installed and that connecting thereto
would be subject to engineering approval.
(d) That Royal Parkside Drive is an open, assumed and fully serviced street designed to
accommodate the type of services required.
(e) That the proposed EP land is located some 350 metres north of the subject land.
(f) That the development of the subject land will not adversely affect the proposed EP land
which will be governed by a different development process in the course of the subdivsion
approval stage.
(g) That the previous impediment which was found in a letter of understanding that had existed
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Page 4 0[6
between the land owners in that area and the municipality had been declared ultra vires by this
court and that in the circumstances, the said impediment has now become moot.
(h) That the OMB had made a decision on June 30th, 2003 that there is no planning justification
for connecting the approval of the development of the subject property to the determination
and dedication and qualification of the proposed EP land.
9 I find that there is no factual issue that could possibly constitute a genuine issue for trial in
regards to the subject application.
10 I find that the only issue or at least substantial issue before me is whether or not the
municipality, can in law withhold it's consent to lift it's 0.3 metre reserve along the west side of the
subject property. In paragraph 35 of it's factum, the municipality puts its position thus:
It is the submission of the Defendant that the decision to lift the .3 metre (1 foot) reserve is
solely within its discretion and there is no legal duty on the Defendant to lift it.
11 In paragraph 36 the municipality states as follows:
The decision as to when and under what conditions a .3 metre (1 foot) reserve will be lifted is
solely within the discretion of the municipality.
12 This proposition is stated to be founded in the decision of the Ontario Divisional Court in Minto
Construction Ltd. v. Nepean (Township), [1977] O.J. No. 693 (Ont. Div. Ct.) at para. 8.
13 The municipality then at paragraph 37 of its factum takes the following position:
There is no legal duty, statutory or common law, which requires the municipality to lift the .3
metre (1 foot) reserve.
14 It again relies on the Minto Construction Ltd., (supra) decision and on the Middlesex Centre
(Township) v. 1404477 Ontario Inc., [20021 O.J. No. 3076 (Ont. S.c.J.), at para 2.
15 And at paragraph 38 of its factum, the municipality takes the following position:
The municipality may retain the .3 metre (1 foot) reserve in order to maintain control over
developments. [FN 1]
16 I find that these decision referred to by the municipality were fact related. They have to be read
in conjunction with proper planning principles. The court in Bost Properties Inc. v. Highland West
Developments Inc.. [2002] a.J. No. 477 (Ont. S.C.J.) at para. 20-21 puts it as follows aand I may
paraphrase it as:
The purpose of the 0.3 metre reserves is to allow municipalities to ensure the orderly
development of land pursuant to the principles set forth in the Planning Act, R.5.a. 1990, c. P-
13. Municipalities are able to control access until approvals are in place, services installed,
building permits issued and construction completed, at which time the reserves are released
and become part of the municipal street.
17 Truly, the municipality is wrong in its position that as an "owner" of the lands, they reserve to
themselves an absolute right as to the time and place when such is to be disposed. This one foot
reserve was acquired by the municipality to serve the aforementioned purpose.
18 Although not binding on this court, nevertheless, deference should be given to the Ontario
Municipal Board's decision in Scarborough (City) Official Plan Amendment No. 14(Re:) [1989] a.M.B.D.
No. 29 at page 6 and Middlesex Centre (Township) Official Plan Amendment One Foot Reserve, Re..
[1999] a.M.B.D. No. 632 (O.M.B.) at para 15 that the use of a .03 metre reserve is appropriate only
for the purpose of ensuring that uncontrolled development which amounts to bad planning be
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prevented. They ought not to be used as a form of "trump" to set aside Board decisions made on the
planning merits of a case.
19 In exercising discretion, a Minister of the Crown or a municipality must base any decision upon a
weighing of considerations pertinent to the object of the administration. There is no such thing as:
. . . absolute or untrammeled discretion, that is, action can be taken on any ground or for any
reason that can be suggested to the mind of the administrator; no legislative Act can, without
express language, be taken to contemplate an unlimited arbitrary power exercisable for any
purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.
[FN2]
20 I also find that as the refusal to lift the 0.3 metre reserve is not absolute, and as it must be
discretionary, such exercise of discretion must be based upon proper principles and must not be
influenced by extraneous irrelevant and collateral consideration. [FN3]
21 Even where the legislation describes the authority to be exercised as being in the decision
maker's "absolute discretion", the exercise must still be based on relevant considerations, must not be
arbitrary and must be made in good faith.[FN4]
22 Again, the courts have clearly held that the right of the municipality to withhold its consent to
the lifting of the 0.3 metre reserve as not being absolute. The courts have quashed a by-law
purporting to compel the dedication of a 0.3 metre reserve where the reserve would be withheld by
the municipality until the abutting landowner had paid the municipality the full costs of the services
installed in the road allowance. The court concluded that the City's policy was not permitted by law,
and was discriminatory and oppressive.[FN5]
23 In respect of a right to a building permit, a municipality is not entitled to refuse developmental
approval for an unlawful reason and thereby effectively frustrate a landowner's prima facie right to a
building permit. [FN6]
24 Even where the courts have declined to order a municipality to lift a 0.3 metre reserve, the
courts have acknowledged that there are limitations on a municipality's discretion in deciding whether
or not to lift a reserve. Thus, the courts inquire as to whether the municipality has acted in bad faith,
whether its decision is reasonable or arbitrary and whether the land owner has complied with the
requirements of the municipality.[FN7]
25 Glenn J. Lucas the City Planner, in his affidavit did not take issue with Cheryl Ann Shindruk, the
applicant's planner that the appropriate zoning and disposition of the EP lands will be determined
through the appeal of zoning by-law 2002-158 and consideration of the applicant's plan of subdivision
and rezoning applications. There is nothing that could flow from the consideration of those matters
that would be relevant to whether or not the applicant is given access to Royal Parkside Drive and the
services within the road allowance of Royal Parkside Drive for the LTCF, except of course to point out
that all of the lands remain as a single property including the lands that have been identified as being
potentially EP.
26 It therefore seems to follow that there is no legitimate planning purpose related to the OMD's
LTCF that is served by the City's refusal to lift the 0.3 metre reserve. The appropriate designation and
disposition of the proposed alleged EP lands is an extraneous, irrelevant and collateral consideration in
terms of whether access should be provided for the LTCF to Royal Parkside Drive and the municipal
services within the said road allowance.
27 I therefore find that it follows that the refusal to lift the 0.3 metre reserve is arbitrary and wholly
unrelated to the object of a one foot reserve, namely, to ensure orderly development including the
fulfillment of all obligations relevant to the LTCF site.
28 I reject the municipality's submissions that the caselaw referred to me by the moving party all
dealt with cases involving the municipality exercising an administrative function while, in the case at
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bar, the municipality is exercising a function qua an owner of a piece of land. I find that such a
distinction is artificial and as aforementioned, clearly overlooks the purpose for which the municipality
appears as an owner of the lands in question. Surely, the municipality did not become owner of a one
foot strip of land solely for the purpose of ownership but rather, to ensure the orderly development of
the land adjacent thereto pursuant to the principles set forth in the Planning Act including, in order to
control access until approvals are in place, services installed, building permits issued and construction
completed, at which time, it was intended that the reserve was to be released and become part of the
street. Bearing that in mind, I find that there is no genuine issue for trial in respect of that part of the
plaintiff's statement of claim and therefore, final judgment will issue requiring the defendant, the
Corporation of the City of Barrie, to lift the 0.3 metre reserve situated alongside the westerly Ontario
Mission of the Deaf property boundary running along Royal Parkside Drive in the City of Barrie, thereby
permitting the Ontario Mission of the Deaf access to the Royal Parkside Drive and the municipal
services beneath Royal Parkside Drive in accordance with a site plan approval by the Ontario Municipal
Board to the extent that it will allow the plaintiff to fully develop the institutional long-term care facility
for the deaf over the most southerly 3.52 hectares of land more or less referred to in the Statement of
Claim.
29 The balance of the applicant's claim, namely, its claim for punitive and exemplary damages is to
continue on to trial.
30 Costs of this motion are to issue in favour of the moving party to be agreed upon by the parties
or otherwise to be fixed by this court on a date to be set by the Trial Co-ordinator's office at Barrie.
Application granted.
FN1. 829972 Ontario Ltd. v. Woodstock (City), [1992] O.J. No. 619 (Ont. Gen. Div.), at p. 3
FN2. Roncarel/i v. Duplessis....J1959] S.C.R. 121 (S.c.c.); Etobicoke (Borough) Board of Education v.
Highbury Developments Ltd., [1958] S.C.R. 196 (S.c.c.).
FN3. Multi-Malls Inc. v. Ontario (Minister of Transportation & Communications) (1976). 14 O.R. (2d)
49 (Ont. C.A.); Oakwood Development Ltd. v. St. Franc;ois Xavier (Rural Municipality), [1985] 2 S.C.R.
164.20 D.L.R. (4th) 641 (S.c.c.); Koenig v. Ontario (Minister of Municipal Affairs) (1994), 24 M.P.L.R.
(2d) 261. 21 O.R. (3d) 282 (Ont. Div. Ct.)
FN4. Keeping v. Canada (Attorney Genera!), 2003 NLCA 21 (N.L. C.A.), 226 D.L.R. (4th) 285 (N.L.
C.A.); Robert Macaulay and James Sprague, Practice and Procedure before Administrative Tribunals
(Thomson/Carswell) paras 5B.5(d) and 5B.5(e)
FN5. Wasserman v. Hamilton (City), [1965] 2 O.R. 660 (Ont. H.C.)
FN6. Dominion Stores Ltd. v. Etobicoke (Borough) (1982). 37 O.R. (2d) 661 (Ont. Div. Ct.)
FN7. Middlesex Centre (Township) v. 1404477 Ontario Inc.. [2002] O.J. No. 3076 (Ont. S.C.J.);
829972 Ontario Ltd. v. Woodstock (City), [1992] O.J. No. 619 (Ont. Gen. Div.)
END OF DOCUMENT
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PIMENOV A v. BRAMPTON (CITY)
Ontario Superior Court of Justice
Kruzick J.
Heard - October, 82003.
Judgment - May 13, 2004.
No. 03-BN-6171
Licensing - Body rub parlours - Validity of by-law - City's body rub parlour
by-law distinguishing such establishment from other forms of adult
entertainment - By-law also improperly regulating morality within federal
criminal law sphere with respect to restrictions on clothing and physical
contact - Municipal Act, 2001, 5.0. 2001, c. 25, s. 150.
The City of Brampton enacted a by-law to regulate body-rub parlours within the
City. The by-law purported to limit the maximum number of body-rub parlours to
8, to limit transferability of licences, to require attendants and customers to be
clothed, to prohibit any sexual contact between attendants and customers and to
limit the hours of operation to between 10 a.m. and 10 p.m. The City argued that
the restrictions that prohibited body-rub parlours from providing sexual services
distinguished them from other forms of adult entertainment parlours. The
applicants alleged that the by-law was an attempt to regulate morality and that it
was discriminatory and ultra vires the City's authority under the Municipal Act,
2001.
Held: The application was allowed in part.
The City had jurisdiction to license and regulate body rub establishments under
s. 150(8) of the Municipal Act, 2001. The City had the authority to control the
number of licences that it issued under the health and safety considerations in s.
150. The City could not, however, prohibit the transfer of licences. The City
could also not impose a limitation on the hours of operation in the name of
regulating trade and business since no such restriction was imposed on other
adult entertainment establishments. Such a restriction on the hours of operation
was discriminatory. The requirement for minimum clothing and the restrictions
on physical contact had the objective of regulating public morality and thus fell
within the exclusive federal jurisdiction over criminal law. Such provisions were
ultra vires the City's authority to licence under the Municipal Act, 2001.
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COURT FILE NO.: 03-BN-6171
DATE: 20040513
ONTARIO
SUPERIOR COURT OF JUSTICE
BET WEE N: )
)
PIMENOVA et al ) R. Sleightholm, for the Applicants
)
)
)
Applicants )
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- and - )
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THE CORPORATION OF THE CITY ) B. Duxbury, for the Respondent
OFBRAMPTON )
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Respondent )
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) HEARD: October 8,2003
REASONS FOR JUDGMENT
KRUZICK J.
Nature of Application
[1] This is an application to quash Schedule S-26 to by-law 1-2002, as
amended by by-law 149-2003. In particular, the applicants ask for an Order
quashing section 5(5) of Schedule S-26 to by-law 1-2002, as amended by by-law
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22. Every body rub attendant, every customer and every other person at
a body rub parlour shall be clothed in a manner by which such
person's pubic area and in the case of a woman, her breasts, are
fully covered by opaque material. (149-2003)
23. No body rub attendant shall allow any person to touch, kiss, or make
any physical contact with their breasts, buttocks, genital or pubic
areas or have sexual contact with any person. (149-2003)
24. A license issued under this Schedule is not transferable. (149-2003)
[6] The City takes the position it has the jurisdiction to enact by-laws pursuant
to the Municipa/ Act, 2001, S.O. 2001, c. 25. In May, 2003 the City amended its
by-law to regulate legitimate non-therapeutic massage operations. The amended
by-law imposes limitation on physical contact and includes restricted hours of
operation and prescribes clothing of the attendants. They also need a valid
medical certificate.
[7] The by-law also imposes restriction with respect to the transfer of licences
and limits issuance to a maximum of eight body-rub licences. Presently, there
are at least sixteen such establishments in Brampton.
[8] The City takes the position that the new by-law is within its broad and
general licensing power. It argues it amended the by-law because the
establishments conduct activities that cause concern for health, safety, and
protection of both the employees of the establishments and its clients.
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body-rub parlours and other personal services. The objective of the new by-law is
to distinguish legitimate, non-therapeutic massage and adult entertainment.
Under the by-law, sexually related services in the form of erotic dancing are
allowed in entertainment parlours. The City takes the position there is a clear
distinction between the types of services provided by body-rub parlours and adult
entertainment parlours.
[14] Furthermore, the City concedes the new by-law serves to prevent
physical (sexual) contact with the customer, which is also not permitted in other
adult entertainment establishments.
[15] The dress requirement, according to the City, is related to issues of
health and safety so as to protect consumers and the attendants, as well as to
distinguish the body-rub parlour from legitimate, non-therapeutic massage
businesses.
[16] Through the new by-law, the City has also attempted to limit body-rub
licences to a maximum of eight. The City's position is that the restriction is
designed to allow the City to achieve its targeted number of body-rub
establishments. While the applicants would be grandfathered with respect to the
limit of eight body-rub licences and would be able to continue their operations,
the applicants argue that the new by-law prevents the transfer of existing
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[20] Pursuant to subsection 150(8), the respondent submits that it has the
power to licence, regulate, and govern a business as follows:
(d) to define classes of business and to separately license, regulate
and govern each class;
(e) (i) to impose conditions as a requirement of obtaining,
continuing to hold or renewing a licence, including
conditions,
(ii) restricting the hours of operation of the business,
. (f) to impose special conditions on a business in a class that have
not been imposed on all of the businesses in that class in order
to obtain, continue to hold or renew a licence;
(g) to impose conditions, including special conditions, as a
requirement of continuing to hold a licence at any time during
the term of the licence;
(h) to license, regulate or govern the place or premises used for the
business and the persons carrying it on or engaged in it ...
[21] I have no difficulty with that submission. The City is entitled to licence
and regulate body-rub establishments. As a result, the provision to the City of
Brampton Licensing By-laws, specifically by-law 1-2002, defines "body-rub" as
follows:
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"Bodv-rub" includes the kneading, manipulating, rubbing, massaging, touching, or
stimulating, by any means, of a person's body or part thereof but does not include
medical or therapeutic treatment given by a person otherwise duly qualified, licensed or
registered so to do under the laws of the Province of Ontario.
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[25] Is the City exceeding its power into the area of criminal law? The Crimina/
Code contains provisions for a number of offences that deal with dress and
morality. These include the following:
(a) Section 174: Nudity.
(b) Section 197: Definition of "common bawdy-house".
(c) Section 210: Keeping common bawdy-house.
(d) Section 212: Procuring.
(e) Section 213: Offence in relation to prostitution.
[26J The Ontario Court of Appeal has clearly stated that municipalities cannot
venture into areas that are within federal jurisdiction. In Nordee Investments Ltd.
v. Burlington (City) (1984), 48 O.R. (2d) 123, the Court of Appeal held that it is
invalid for by-laws to attempt to deal with criminal law. In that decision, the Court
of Appeal followed the Supreme Court of Canada decision in R. v. Westendorp,
[1983] 1 S.C.R. 43. The Court,also examined Moffat v. Edmonton (City) (1978),
84 D.L.R. (3d) 705 (Dist. Ct.) and Re Sharlmark Hotels Ltd. and Municipality of
Metropolitan Toronto (1981),32 O.R. (2d) 129 (Div. Ct.).
[27] Those cases where the courts found the by-law valid are distinguishable
from the facts before me in that all the by-laws in the other cases dealt with the
regulation of a business. I find portions of the new by-law in this case are an
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reflected a moral judgment, the presence of a moral element in the purpose did
not itself render the by-law invalid. The Court found the pith and substance of the
by-law was the regulation of a permitted business.
[30] The City relies on Rio Hotel Ltd. v. New Brunswick (Liquor Licensing
Board) [1987], 2 S.C.R. 59 as its authority. In that case, it must be remembered
that Chief Justice Dickson's decision was the majority judgment and Justice
Estey wrote the minority judgment. Though all the judges agreed in the result,
Chief Justice Dickson and Justice Estey differed in their approaches to the issue.
Justice Estey expanded his discussion to include a review of the case law,
including the cases of Koumoudouros, supra, Nordee, supra, and Sherwood
Park Restaurant Inc. v. Markham (Town) (1984), 48 O.R. (2d) 449 (C.A.), rev'g
(1984), 46 O.R. (2d) 436 (H.C.J.). Justice Estey found that the dispositions in
those cases were in error. However, Chief Justice Dickson stated that where
legislation has a "double aspect", the federal legislation will only be paramount
when there is a direct conflict with the provincial legislation; mere duplication
does not constitute a "direct conflict".
[31] It should be noted that the majority decision in Rio Hote/ cites R. v.
Westendorp, supra, and distinguishes the facts in that case. Whereas the by-law
in R. v. Westendorp was described by Chief Justice Dickson at 66 as a "b/atant
and colourable attempt to punish prostitution", the licensing conditions in Rio
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Burlington (City) (1984),48 O.R. (2d) 123, 13 D.L.R. (4th) 37 (CA). In Rio Hotel, supra,
Estey J. expressly found that the dispositions in all three of these cases was in error (at
p. 79). I think it is clear that to the extent that these cases are applicable on their facts to
the one in appeal they have been overruled by Rio Hotel, supra.
While Justice Estey's decision was the minority decision in Rio Hotel, he did
concur in the result with the majority.
[34] I note, however, that the Court of Appeal came to the conclusion that the
by-law in Ontario Adu/t Entertainment was purely regulatory and could not be
said to legislate on morality, though an ancillary effect of the regulation was to
touch on matters of morality. There, the Court of Appeal concluded that the by-
law was also not an attempt to raise the level of the permitted standard for. .
indecent or immoral acts. It recognized that this standard was prescribed in the
Criminal Code. Are the facts in the present case different?
[35] While provincial and federal governments may legislate on similar
matters, the province (or a municipality) may not create criminal law. The
doctrine of paramountcy is only triggered when a court is assessing the
interaction between a valid provincial and federal law on the same matter. As
stated at 170 in Ontario Adult Entertainment:
The appellant criticized this passage as an incorrect statement of the law and I think that
it can be read in that way. Provincial legislation that is "of a criminal nature", if such a
phrase is interpreted to mean criminal law, does not trigger an inquiry as to whether the
paramountcy doctrine is engaged because such legislation violates principles of the
division of powers, and would, as a result, not be valid provincial law. While the provincial
. and federal Legislatures may legislate on similar subject matters, the provincial
Legislature may not create criminal law. If the Divisional Court intended to suggest that
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unrestrained proliferation of body-rub parlours, it is recognized by both City enforcement
personnel, as well as Peel Regional Police, that there are certain types of activities
currently taking place in licensed body-rub parlours which need to be restricted, if not
prohibited,
[38] The source of the information came from the Morality Bureau of the Peel
Regional Police. The City filed an affidavit of Detective Cousineau of the Peel
Regional Morality Bureau in support of its position.
[39] It is the City's position that the interviews undertaken by Detective
Cousineau were not for the purpose of conducting criminal investigation. The
alleged purpose was to learn more about the particular businesses and to follow
up on public complaints. The City claims there was no intention of laying
charges. While it may be that no charges resulted, the evidence on this motion
leads me to conclude that what the City was doing here goes beyond its power to
licence, regulate, and govern business.
[40] In 'the course of cross-examination, Dete.ctive Cousineau gave evidence
that he considered every body-rub parlour, whether licensed or not, to be a
common bawdy-house. He stated that during the course of his investigation, he
attended at several body-rub parlours and, as a result of his findings, charges
were being considered or were pending. The contemplated charges dealt with
operating, being an inmate or found in a common bawdy-house, living off the
avails of prostitution, or soliciting for prostitution.
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similarly. There is no doubt that the restrictions treat these two forms of adult
entertainment differently. The by-law will have an impact with the desired affect
of putting the body-rub parlours out of business. As submitted by the applicants,
body-rub parlours may simply move to other municipalities or operate as
unlicensed establishments, which is not in the greater public interest.
[45] Having said that, with respect to limiting the number of establishments, I
am of the view that the City has jurisdiction under subsection 150(8) of the
Municipa/ Act, 2001 to limit the number of licences it issues. To my mind, this is
clearly within the City's power to licence, regulate, and govern so long as it is not
discriminatory. Is the provision of the by-law, which restricts hours of operation
and number of licences, illegal under the Municipa/ Acn
[46] It is the position of the applicants that just as limiting the number of
licences is discriminatory, limiting the hours of operation is also discriminatory
and therefore illegal.
[47] I considered Strachan (c.o.b. Kats) v. Edmonton (City), [2003] A.J. No.
437 (Q.B.) (QL). One of the issues in that case was whether the by-law
discriminates against an escort business by setting excessively high fees for
licences and whether it is invalid on this ground. The court states that a case of
discrimination was not made out. There was no evidence on point, although there
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added to the omnibus by-law. The Court was not prepared to infer any improper
discriminatory purpose to the council from the mere fact of the amendments.
[50] The respondent in Konakov relied on the decision in Treesann
Management Inc. v. Richmond Hill (Town) (2000), 47 O.R. (3d) 221 (C.A.), where
the court held a by-law enacted under the Municipal Act could not' offer an
illusory licensing scheme that prohibited adult entertainment parlours in the town.
Carthy J.A. held that the by-law was prohibitory and beyond the authority of the
municipality. The powers conferred under the Municipal Act are different than
the powers conferred under the Planning Act and those differences must be
accorded meaning.
[51] In the case before me, there is a distinction between dance parlours and
body-rub parlours in that they provided different forms of adult entertainment. In
limiting the number of establishments, I find there is no discrimination as the
municipality has the jurisdiction to control the number of licences it wishes to
issue, but one must look further. The City has already issued some sixteen
licences.
[52] A prohibition on the transfer of licences is, however, discriminatory
because it removes one of the rights of ownership, namely the right to sell a
business which is, under the earlier by-law, licensed and legal. Given the
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(b) Section 21 of the by-law, which prescribes the hours of operation, is
unfairly discriminatory having regard to the hours of operation
prescribed for other adult entertainment establishments and must be
quashed.
(c) Section 22 of the by-law is ultra vires the City in that it legislates
morality and criminal law in prescribing dress, which is within the
scope of the of the Criminal Code. It is quashed.
(d) Section 23 of the by-law is ultra vires as it legislates physical contact,
which is also within the scope of the Crimina/ Code. It is quashed.
[55] Counsel did not have an opportunity to argue costs and may take out an
appointment with the trial co-ordinator if they are unable to resolve the issue.
Kruzick J.
Released: May 13, 2004
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1562850 ONTARIO LIMITED
v. LAUGHLIN, Chief Building Official for the City of Toronto
Ontario Superior Court of Justice
Siegel J.
Heard - February 4, 2004
Judgment - April 15, 2004
No. 04-CV-261810 CM3
Building permits - Demolition permits - Issuance - Applicable law - City's
apprehension that applicant not intending to construct building as applied for
not constituting grounds to refuse issuance of demolition permit - Building
Code Act, 1992,5.0.1992, c. 23, ss. 8(2), 8(10).
The applicant sought an order requiring the City of Toronto to issue it a demolition
permit. The applicant owned an older home and wanted to demolish it and
construct one or more new buildings. The applicant applied for a minor variance to
construct three homes on the property. The City's Committee of Adjustment
refused the variance and the applicant appealed to the Ontario Municipal Board.
The applicant also applied to the City for a demolition permit as well as a building
permit to construct a new detached home. The building permit was issued March
17, 2003 even though the appeal had not yet been heard. In April, City Council
passed three resolutions: to designate the property under the Ontario Heritage Act,
to refuse the earlier application to demolish the building and to grant a demolition
permit with conditions under section 33 of the Planning Act. The City then refused
to issue a demolition permit on the basis that it did not believe that the applicant
intended to construct the replacement building for which the building permit had
been sought.
Held: The application was granted.
The City was ordered to issue the demolition permit. The Chief Building Official had
no discretion to refuse to issue a permit when all statutory requirements had been
fulfilled. There was no suggestion that the proposed permit would contravene the
Building Code Act, 1992 or the Ontario Building Code. The only issue was whether
it would contravene "any other applicable law". The only other applicable law was
the Ontario Heritage Act. All criteria under the Act were satisfied. The respondent
City did not have the right to refuse a demolition permit. A reasonable apprehension
that the applicant intended to build a different building than that applied for was an
insufficient ground to refuse the demolition permit. The Chief Building Official could
revoke the building permit under clause 8(10)(a) of the Building Code Act, 1992 if
the applicant failed to comply with the terms of its issuance.
::ODMA\PCDOCS\DOCS\ 1718118\1
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2004 CarswellOnt 1518
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2004 CarswellOnt 1518
1562850 Ontario Ltd. v. Toronto (City)
1562850 Ontario Limited and James Laughlin, the Chief Building Official for the
City of Toronto and The Corporation of the City of Toronto
Ontario Superior Court of Justice
Siegel J.
Heard: February 4, 2004
Judgment: April 15, 2004
Docket: 04-CV-261810 CM3
Copyright @ CARSWELL,
a Division of Thomson Canada Ltd. or its Licensors. All rights reserved.
Counsel: James M. Wortzman for Applicant
Andrew M. Stikuts for Respondents
Subject: Contracts; Civil Practice and Procedure; Public
Construction law --- Statutory regulation -- Building permits -- Compelling issuance -- Discretion to
grant or adjourn
Property owner applied to committee of adjustment for minor variance to permit it to construct three
homes on lot with single home -- Owner applied to city for demolition permit for existing building
and building permit to construct new detached home with floor area of 109.4 square meters --
Committee failed to deal with application and owner appealed deemed refusal to Ontario Municipal
Board ("OMB") -- Building permit issued for construction of single family home despite fact that OMB
appeal seeking severance of property into three lots had not been heard -- City council passed
resolutions granting authority to designate property for heritage value and granting demolition
permit subject to conditions, including requiring owner to obtain permission under Ontario Heritage
Act to demolish building -- Owner satisfied technical requirements for issuance of demolition permit -
- City refused to issue demolition permit on basis that it questioned owner's intention to construct
replacement building on property for which building permit was issued -- Owner moved for order
requiring city and chief building inspector to issue demolition permit -- Motion granted -- Chief
building inspector has no discretion to refuse to issue permit when all statutory requirements have
been fulfilled -- There is no basis at law for interpreting Act to permit refusal even if city has
"reasonable apprehension" that owner intends to build building other than that for which it applied.
Civil practice and procedure --- Practice on interlocutory motions and applications -- Conduct of
hearing -- Adjournments
Property owner applied to committee of adjustment for minor variance to permit it to construct three
homes on lot with single home -- Owner applied to city for demolition permit for existing building
and building permit to construct new detached home with floor area of 109.4 square meters --
Committee failed to deal with application and owner appealed deemed refusal to Ontario Municipal
Board ("OMB") -- Building permit issued for construction of single family home despite fact that OMB
appeal seeking severance of property into three lots had not been heard -- City council passed
resolutions granting authority to designate property for heritage value and granting demolition
permit subject to conditions, including requiring owner to obtain permission under Ontario Heritage
Act to demolish building -- Owner satisfied technical requirements for issuance of demolition permit -
- City refused to issue demolition permit on basis that it questioned owner's intention to construct
replacement building on property for which building permit was issued -- Owner moved for order
requiring city and chief building inspector to issue demolition permit -- City and chief sought
adjournment pending completion of OMB proceedings -- Motion granted -- Judge had no authority to
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adjourn motion pending completion of OMB proceedings if owner was otherwise entitled to issuance
of demolition permit.
Cases considered by Siegel J.:
Alaimo v. York (City) Chief Building Official (1995). 26 M.P.L.R. (2d) 69. 1995 CarswellOnt
167 (Ont. Gen. Div.) -- referred to
Mayhew v. Hamilton (Township) Chief Building Official (2002), 2002 CarswellOnt 1609. 59 O.R.
(3d) 202. 15 C.L.R. (3d) 189. 30 M.P.L.R. (3d) 219, 10 R.P.R. (4th) 218 (Ont. S.C.J.) --
referred to
Ottawa (City) v. ottawa (City) Chief Building Official (2003), 2003 CarswellOnt 5280. 180
O.A.C. 48. 45 M.P.L.R. (3d) 29 (Ont. Div. Ct.) -- referred to
Sixteenth Warden Ltd. v. Markham (Town) Chief Building Official (1993), 18
M.P.L.R. (2d) 70. (sub nom. Sixteenth Warden Ltd. v. Markham (Town)) 12 O.R. (3d) 653.
1993 CarswellOnt 538 (Ont. Gen. Div.) -- considered
Woodglen & Co. v. North York (City) (1984). 47 O.R. (2d) 614. 9 C.L.R. 232. 26 M.P.L.R. 40. 5
O.A.c. 313, 12 D.L.R. (4th) 146, 1984 CarswellOnt 524 (Ont. Div. Ct.) -- considered
Statutes considered:
Building Code Act, 1992, S.O. 1992, c. 23
Generally -- referred to
s. 8 -- considered
s. 8(1) n considered
s. 8(2) -- considered
s. 8(2)(a) -- considered
s. 8(2)(a)-8(2)(c) -- referred to
s. 8(10)(a) -- considered
s. 25 -- referred to
s. 25(1) -- considered
s. 25(4) -- considered
Ontario Heritage Act, R.5.0. 1990, c. 0.18
Generally -- referred to
Pt. IV -- referred to
s. 34 -- considered
s. 34(1) n considered
s. 34(5) -- considered
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s. 34.1 [en. 2002, c. 18, 5ched. F, s. 2(18)] -- considered
s. 34.1(1) [en. 2002, c. 18, 5ched. F, s. 2(18)] n considered
s. 34.1(2)-34.1(13) [en. 2002, c. 18, 5ched. F, s. 2(18)] -- considered
Planning Act, R.5.0. 1990, c. P.13
Generally u referred to
s. 33 n referred to
Regulations considered:
Building Code Act, 1992, 5.0. 1992, c. 23
Building Code, O. Reg. 403/97
Generally
MOTION by property owner for order requiring city and chief building inspector to issue demolition
permit.
Siegel J.:
1 In this motion the Applicant, 1562850 Ontario Limited (the "Applicant"), seeks an order requiring
the Respondents, The Corporation of the City of Toronto (the "City") and James Laughlin, in his
capacity as the Chief Building Official for the City, (collectively the "Respondents") to issue a
demolition permit in respect of a building on a property municipally known as 56 Blythwood Avenue in
the City of Toronto (the "Property"). The Respondents seek dismissal of the Applicant's action on the
grounds that it does not disclose a cause of action or, alternatively, an adjournment until the Ontario
Municipal Board ("OMB") proceedings described below have been completed. The parties have agreed
that this motion proceeds by way of a de novo hearing of the issue of the Applicant's entitlement to a
demolition permit under section 25 of the Building Code Act, 1992, 5.0. 1992, c.23 (the "BCA").
2 As a preliminary matter, the Applicant acknowledged that it did not intend to name James
Laughlin as a defendant in the action otherwise than in his capacity as the chief building official of the
City. Accordingly, on consent the style of cause is amended to provide that the defendants in the
action are The Corporation of the City of Toronto and James Laughlin in his capacity as the chief
building official for The Corporation of the City of Toronto.
3 The Applicant also indicated it is not seeking damages on this motion.
Factual Background:
4 The Applicant is the owner of the Property. The Property houses an older home (the "Building").
The Applicant purchased the Property, together with the Building, with the sole intention of
demolishing the Building and constructing one or more new buildings on the Property.
5 On December 16, 2002, the Applicant made an application to the Committee of Adjustment of the
City for a minor variance to permit the Applicant to construct three homes on the Property. The
Committee of Adjustment failed to deal with the application, giving rise to a deemed refusal by virtue
of the provisions of the Planning Act, R.5.0. 1990, c.P.13, as amended. The Applicant appealed the
deemed refusal to the OMB on February 19, 2003.
6 On or about January 23, 2003, the Applicant also filed applications with the City seeking a
demolition permit to demolish the existing Building and a building permit to construct a new detached
home having a floor area of 109.4 square metres. I note the applications show the owner as Graham
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Grant rather than the Applicant. The connection between these parties was not explained on the
motion, or objected to by the Respondents. I have proceeded on the basis that the applications were
validly made.
7 A building permit (the "Building Permit") was issued on March 17, 2003 for the construction of a
single home on the Property with a prescribed construction value of $95,000. The Building Permit was
issued despite the fact that the OMB appeal seeking a severance of the Property into three lots had not
been heard.
8 With respect to the demolition permit, at the City Council meeting held on April 14, 15 and 16,
2003, the City Council passed three resolutions relating to the Property (the "City Resolutions"). The
first resolution granted authority for the introduction of the necessary bill in council to designate 56
Blythwood Road for cultural heritage value or interest under Part IV of the Ontario Heritage Act R.S.O.
1990, c.0.18, as amended (the "OHA"), and directed the appropriate City officials to take whatever
action may be necessary to comply with the provisions of the OHA in respect to such designation. The
second resolution refused the application made under section 34 of the OHA to demolish the Building,
being the application made on or about January 23, 2003, and authorized and directed the appropriate
City officials to take the necessary action to give effect thereto.
9 The third resolution granted the application for a demolition permit under section 33 of the
Planning Act, subject to conditions which included the following:
(i) that prior to the issuance of the demolition permit, the Applicant obtain permission to
demolish the Building under the OHA;
(ii) that prior to the issuance of the demolition permit, the Applicant provide documentation of the
existing Building, including photographs and measured drawings, to the Manager of the Heritage
Preservation Services;
(iii) that the owner construct and substantially complete the new building authorized by the
Building Permit on the site of the building to be demolished by not later than two (2) years from the
day the demolition is commenced; and
(iv) that, on failure to complete the new building within the time specified, the City Clerk shall be
entitled to enter on the collector's roll, to be collected in like manner as municipal taxes, the sum of
twenty-thousand dollars ($20,000.00) for each dwelling unit contained in the building in respect of
which the demolition permit is issued.
10 The Applicant says the City was aware of the Applicant's appeal to the OMB both at the time the
Building Permit was issued and at the time the City Resolutions were passed. This is not contradicted
by the Respondents in their materials and is, therefore, assumed to be correct for the purposes of this
motion.
11 The Applicant has satisfied the technical requirements for the issuance of a demolition permit.
The Applicant provided documentation of the existing Building to the Manager of Heritage Preservation
Services. The Manager of Heritage Preservation Services has taken no action with respect to the
Building. In addition, the Applicant had obtained the Building Permit to erect a new building on the
Property on March 17, 2003 and 180 days have elapsed from the date of the City Resolutions, as
required by the Heritage Act Criteria described below. This was acknowledged by the Respondents in
Mr. Laughlin's letter to the Applicant dated December 23, 2003 (the "City Letter").
12 The City of Toronto has refused to issue a demolition permit on the basis that it questions the
intention of the Applicant to construct the replacement building on the Property for which the Building
Permit was issued, being a building with a floor area of 109.4 square metres and an approximate
construction value of $95,000. The position of the City of Toronto was set out in the City Letter, the
concluding paragraph of which reads as follows:
All of this raises a reasonable apprehension that you do not intend to construct the
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replacement building for which a building permit was obtained. It is a reasonable conclusion
that the building permit which was obtained was not obtained in good faith, but rather to
circumvent the provisions of the [OHA]. Further, since you have not and are not yet able to
obtain a building permit for the three detached house replacement buildings, which is what you
intend to construct, the issuance of a demolition permit before the issuance of a building permit
for the real replacement building would be premature.
Statutory Framework
Powers of the Court
13 The following statutory provisions are relevant on this motion.
14 First, the parties agree that this motion is being brought by the Applicant pursuant to subsection
25(1) of the SCA which provides that "any person who considers themself aggrieved by an order or
decision made by the inspector or chief building official under this Act or the regulations... may, within
twenty days after the order or decision is made, appeal the order or decision to a judge of the Superior
Court of Justice".
15 The powers of a judge on an appeal are set out in subsection 25(4) of the SCA as follows:
If an appeal is made under this section, the judge shall hold a hearing and may rescind or
affirm the order or decision of the inspector or chief building official or take such action as the
judge considers the inspector or the chief building official ought to have taken in accordance
with this Act and the regulations and, for such purpose, may substitute his or her opinion for
that of the inspector or chief building official.
16 Accordingly, the rights of the Applicant are to be determined by this Court on the basis of the
decision that the Court determines that the chief building official ought to have made with respect to
the issuance of the requested demolition permit at the time the Applicant made its application for the
permit on January 23, 2003. This issue was addressed by Southey J. in Woodglen & Co. v. North York
(City) (1984),47 O.R. (2d) 614 (Ont. Div. Ct.), at 619. Speaking for the Divisional Court, Southey J.
described the judge's role in an appeal of this type as follows:
The duty of the judge under this subsection is to do what the judge considers the inspector or
chief official ought to have done. The judge has no powers other than those which were
possessed by the inspector or chief official, and has no discretion to act or defer action, if that
discretion was not enjoyed by the inspector or chief official.
On this basis, I am of the opinion that I do not have the authority to adjourn the motion pending
completion of the OMS proceedings if the Applicant is otherwise entitled to the issue of a demolition
permit.
17 The role of the Court on this motion is the same as that articulated by Day J. in Sixteenth
Warden Ltd. v. Markham (Town) Chief Building Official (1993). 12 O.R. (3d) 653 (Ont. Gen. Div.) at
page 11, dealing with issuance of a building permit, - "the judge must place him- or herself in the
shoes of the chief building official as of the date of the receipt of the application, and decide whether
the issuance of a building permit would contravene any applicable law".
Issuance of the Demolition Permit
18 With respect to the demolition permit, section 8 of the SeA provides:
(1) No person shall construct or demolish a building or cause a building to be constructed or
demolished unless a permit has been issued therefor by the chief building official.
(2) The chief building official shall issue a permit under subsection (1) unless,
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(a) the proposed building, construction or demolition will contravene this Act or the building
code or any other applicable law;
(b) the applicant is a builder or vendor as defined in the Ontario New Home Warranties Plan
Act and is not registered under that Act;
(c) the application for it is incomplete; or
(d) any fees due are unpaid. [emphasis added]
19 The chief building official has no discretion to refuse to issue a permit when all statutory
requirements have been fulfilled: see Mayhew v. Hamilton (Township) Chief Building Official. [2002]
O.J. No. 1962 (Ont. S.c.J.) at para. 23; Alaimo v. York (City) Chief Building Official. [1995] O.J. No.
862 (Ont. Gen. Div.) at paras, 10-17; and Ottawa (City) v. Ottawa (City) Chief Building Official. [20031
O.J. No. 4530 (Ont. Div. Ct.)at paras. 116-118.
20 There is no suggestion that the proposed demolition permit would contravene the BCA or the
Building Code. The only issue on this motion is whether the proposed building, construction or
demolition will contravene "any other applicable law". "Applicable law" has been defined for the
purposes of section 8 of the BCA by Ontario Reg. 403/97 as follows:
. .. any general or special act, and all regulations and by-laws enacted thereunder, which
prohibit the proposed construction or demolition of the building unless the Act, regulation or
by-law is complied with.
Both parties approached the motion on the basis that the only possible applicable law would be the
OHA which became operative upon the passage of the City Resolutions. Subsection 34(1) of the OHA
requires the consent of City Council to demolish or remove a building or structure on a property
designated under Part IV of that Act.
21 By virtue of the refusal of the City Council to issue the demolition permit set out in the City
Resolutions, the provisions of subsection 2(4) of the City of Toronto Act (Heritage Properties), 2001,
5.0. 2001, c. Pro 13 (the "Heritage Properties Act") and of subsection 34(5) of the OHA, which are
substantially identical, become applicable. Subsection 2(4) of the Heritage Properties Act reads as
follows:
If city council refuses the application, the owner shall not demolish or remove the building or
structure or do any work or permit any work to be done to demolish or remove it unless,
(a) the owner has obtained a building permit to erect a new building on the site of the
building or structure sought to be demolished or removed; and
(b) 180 days have elapsed from the date of city council's decision under subsection (1) to refuse the
application.
The conditions set out in paragraphs (a) and (b) above are referred to as the "Heritage Act
Criteria". As stated above, these two conditions have been satisfied.
Analysis and Conclusions
22 The issue in this case is straightforward. The Applicant says it is entitled to a demolition permit
under subsection 8(2) of the BCA because none of paragraphs (a) to (c) of that subsection are
applicable. In particular, it says it has satisfied the Heritage Act Criteria and, accordingly, the proposed
demolition will not contravene "any other applicable law". The Respondents say that the scheme of the
OHA, and specifically section 34, requires that the replacement house on the property be the house for
which the building permit pertaining to the property was applied. They say they have a "reasonable
apprehension" that the Applicant does not intend to construct the replacement building for which the
building permit relating to the Property was obtained. On this basis the Respondents submit they are
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entitled to refuse to issue the demolition permit.
23 This application forms only a part of more complicated proceedings involving the Applicant, the
City and the local residents. The residents have a legitimate concern for their neighborhood and, it
appears, have been actively involved in seeking to ensure that any development on the Property
reflects their concerns. The City's actions may well reflect a desire to accommodate the neighborhood
concerns.
24 However, it is important to place this motion in its proper context. The City does not have an
unfettered right to refuse to issue a demolition permit. While the neighborhood residents or the City
may prefer that the Building not be demolished, the City agrees that, under the current legislation, it
would be obligated to issue a demolition permit if it did not have a "reasonable apprehension" that the
building to be constructed was not going to be that for which the building permit had been obtained.
The only issue on this motion is whether this "reasonable apprehension" of the City is sufficient at law
to permit the City to refuse to issue the permit.
25 The Applicant's position is that it is entitled to the demolition permit for either of two reasons:
1. the Respondents' interpretation of the OHA is incorrect; and
2. even if the Respondents' interpretation is correct, there is insufficient evidence to support
the conclusion drawn by the Respondents.
I propose to address the first argument and then add some comments respecting the second
argument.
26 With respect to the interpretation of the OHA, the Applicant says simply that the wording of the
Heritage Act Criteria is clear and unambiguous and that the Applicant has satisfied these conditions.
Ihe Respondents' position is based on section 34.1 of the OHA which reads:
34.1 (1) An owner to whom subsection 34 (5) or (7) applies shall, within two years after
commencing the demolition or removal of the building or structure or any part of it,
substantially complete the new building to be erected on the site. [emphasis added]
Based on this provision of the OHA, the Respondents argue that, where a building has been designated
under Part IV of the Act, the owner is required to construct the building for which the building permit,
that is relied on to satisfy the Heritage Act Criteria, was issued. They base this argument on the
italicized words above in section 34.1 of the OHA. Counsel for the City acknowledges that he was
unable to find any caselaw in support of the City's position.
27 I agree with the Applicant that there is no basis at law for interpreting the provisions of the OHA
to permit refusal even if the City has a "reasonable apprehension" that the Applicant intends to build a
building other than that for which it has applied. I reach this conclusion for two principal reasons.
28 First, there is no wording in the applicable statutes that supports this position. It is clearly
established that the chief building official must issue a demolition permit under subsection 8(2) of the
BCA if all statutory requirements are satisfied. Section 34 of the OHA also has no substantive provision
permitting a refusal to issue a demolition permit despite satisfaction of the Heritage Act Criteria. The
language of section 34.1 of the OHA has no relevance to this issue. It establishes an obligation on an
owner, leaving the consequences of non-compliance to be dealt with under other provisions. In
addition, the reference to "the new building", upon which the respondents' argument is constructed,
does not refer back to the building permit issued in respect of the relevant property and therefore does
not support the Respondents' position.
29 Second, the scheme of the legislation excludes the interpretation of the Respondents by
providing an explicit process to be followed in the event of a failure to complete construction of the
permitted building in a timely fashion. In particular, subsections 34.1(2) to (B), inclusive, address the
rights of both the owner and City Council in the event that construction within the two-year period is
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either not possible or not feasible. In addition, while section 34.1 of the OHA lacks a sanction if
construction does not proceed, the City Resolutions address the issue by including specific sanctions in
the form of financial penalties. Moreover, the City has the right to revoke a building permit under
paragraph 8(10)(a) of the BCA if it was issued on the basis of mistaken, false or incorrect information.
Also, in the event that the Applicant proposes to change the Building to be built upon the Property, the
applicable legislation requires a further application for a new building permit and compliance with a full
approval process. In summary, the fact that a failure to construct, or a change in the intended
construction, can be dealt with after issuance of a demolition permit evidences the legislative intention
that the City shall have no residual power to refuse to issue a demolition permit if a building permit
has been issued and has not been revoked by the City.
30 Accordingly the Applicant is entitled to the issuance of a demolition permit in respect of the
Property and it is so ordered.
31 Given the decision with respect to the interpretation of the OHA, it is unnecessary to consider
the second position of the Applicant that there is no reasonable basis for the conclusion drawn by the
City. However, for the reasons set out below, I wish to add a few comments with respect to this aspect
of the matter.
32 The Respondents' position is set out in the City Letter. The reasoning and conclusion of the City
are set out below in their entirety:
It is acknowledged that 180 days have elapsed since the date of council's decision in this
matter.
It is also acknowledged that a building permit for a new building on the site was applied for and
has been issued. However, of concern to the City is the fact that the building for which a permit
has been applied for is a small bungalow, which is significantly smaller than the existing
residence and which has a smaller footprint than that proposed to be demolished. The cost of
construction indicated on the building permit is $95,000.00 which, together with the modest
size of the replacement building, raises the question of whether such a redevelopment can be
economical related to the cost of acquisition of the property.
Further, you have indicated that you do not intend to construct the bungalow but prefer to
construct replacement buildings consisting of three detached houses. Such replacement
buildings would not be permitted under the existing zoning for 56 Blythwood Road and you
have made application to the Committee of Adjustment for consents and minor variances,
which would permit such a replacement building. The refusal of these applications has been
appealed by you to the Ontario Municipal Board and a hearing of the appeal by the Board is
scheduled to commence on January 5, 2004.
All of this raises a reasonable apprehension that you do not intend to construct the
replacement building for which a building permit was obtained. It is a reasonable conclusion
that the building permit which was obtained was not obtained in good faith, but rather to
circumvent the provisions of the [OHA]. Further, since you have not and are not yet able to
obtain a building permit for the three detached house replacement buildings, which is what
you intend to construct, the issuance of a demolition permit before the issuance of a
building permit for the real replacement building would be premature.
33 The position of the City is basically that the Applicant obtained the Building Permit
misrepresenting its intention respecting the replacement building to be built on the Property. It also
characterizes the action of the Applicant in making the application for the Building Permit as exhibiting
bad faith. The City asserts this position on the basis of inferences drawn from two different facts. I will
address each inference in turn.
34 First, the City suggests that the modest size of the replacement building raises the question of
whether it would be economical given the acquisition cost of the Property. The materials before the
Court do not, however, set out the acquisition cost of the Property. Second, the City also relies on the
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fact of the application to the Committee of Adjustment currently under appeal to the OMB as evidence
that the Applicant prefers to construct three detached houses.
35 Either or both of these facts may be evidence that would permit a Court to draw the inference
that the Applicant does not intend to build the replacement building for which the permit was issued.
However, because all of the relevant evidence is not before the Court on these matters and because it
is irrelevant given the determination of this Court on the interpretation of the OHA, I decline to draw
this inference.
36 Nevertheless, two aspects of the Respondents' position on this issue are troubling if one accepts
the Respondents' position that either or both of such inferences could be drawn by a Court. First, the
facts relating to both of the matters now relied upon by the City were before the chief building official
when the Building Permit was issued in March 2003 and before the City when the City Resolutions
were issued in April, 2003. If the chief building officer or City Council had doubts, they had plenty of
opportunity to raise them prior to issuing the Building Permit and passing the City Resolutions,
respectively. There is nothing in the materials before the Court to suggest that any of these facts has
changed or that new facts have come to light since those dates. The result is that the City comes
before this Court not merely to ask it to uphold the City's authority to refuse to issue a demolition
permit but also, in essence, to ask it to overturn the City's own decision to issue the Building Permit. I
do not see how a Court has the authority to do so in the absence of new facts coming to light in the
intervening period since the issue of the Building Permit.
37 Second, I am advised that the City has the authority to revoke a building permit under
paragraph 8(10)(a) of the BCA. The Respondents' counsel acknowledged the existence of this power in
oral argument and indicated that he believed the standard of proof for that section was a balance of
probabilities. The City has evidently decided not to proceed under this provision of the BCA, either
because it does not believe it can satisfy the standard of proof or because it believes it is estopped
from so proceeding by virtue of the circumstances of the issue of the Building Permit. The
Respondents' position appears to involve asking the Court to do indirectly that which the City is not
prepared to do directly. The Respondents offer no explanation for this contradiction.
38 In addition, I would add that the City has offered no explanation of its allegation in the City
Letter that the Building Permit was obtained "to circumvent the provisions of the OHA". On the basis of
the interpretation of the OHA proposed by the City, it would be impossible for the Applicant to
circumvent the OHA. On the basis of the Court's interpretation of the OHA, the Applicant has complied
with the provisions of the statute.
39 In these circumstances, and given the role of the Court under subsection 25(4) of the BCA, I do
not think that, on this motion, if I am incorrect in my interpretation of the OHA, the Court could give
consideration to a denial of the demolition permit without evidence as to the circumstances of the
issuance of the Building Permit and an explanation of the City's decision not to do directly what it is
asking the Court to do indirectly.
40 I wish to add one further observation. The real issue between the parties concerns the City's
suspicion that the Applicant has no plans to construct the building contemplated by the Building Permit
if it fails to obtain OMB approval for a severance. The current legislation does not provide any powers
in favour of the City to refuse to issue a demolition permit in these circumstances. As a result, the
issue of the future development of this property if the OMB were to deny the Applicant's appeal is, at
the present time, unresolved. It might well be desirable in the minds of the City or other interested
parties to be able to use a power to refuse to issue a demolition permit as a lever to prevent such
uncertainty from developing. However, the means of achieving this power, if that is the City's
objective, is to seek an amendment to the relevant legislation. The Court does not have the power to
rewrite section 34.1 of the OHA in the manner proposed by the City.
Costs
41 The parties shall have 30 days from the date of these reasons to make written submissions with
respect to the disposition of costs in this matter in accordance with the following schedule. The
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Applicant shall deliver a copy of its submission to the Respondents within 15 days of the date of these
reasons. The Respondents shall deliver a copy of their submission to the Applicant within 10 days of
receipt of the Applicant's submission. The Applicant shall file with the Court a bound volume containing
the two submissions and any reply submission within five days of receipt of the Respondents'
submission. Any such submissions seeking costs shall identify all lawyers on the matter, their
respective years of call and rates actually charged to the client and shall include supporting
documentation as to both time and disbursements.
Motion granted.
END OF DOCUMENT
Copr. (c) West 2004 No Claim to Orig. Govt. Works
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