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Municipal - Political Deference. Minnow Lake Restoration Group Inc. v. Sudbury (City)
In Minnow Lake Restoration Group Inc. v. Sudbury (City) (Div Court, 2022) the Divisional Court considered a combined 'judicial review-municipal quashing' application attacking a municipal resolution endorsing a particular arena/event development. The court, plainly concerned that the numerous statutory and municipal steps that the proponents had to surmount (any of which may have attracted JR or appeals), and likely annoyed by the perceived questionable quality of the applicant's case, dismissed it.
The following quotes relate to the political deference that municipalities receive from the courts:[33] In Shell Canada Products Ltd. v. Vancouver[25] the City of Vancouver had passed resolutions that it would no longer do business with Shell Canada “until Royal Dutch Shell completely withdraws from South Africa”. The British Columbia Supreme Court quashed the resolution as being ultra vires the municipality. The Court of Appeal reversed the judgment. The matter proceeded to the Supreme Court of Canada. This further appeal was allowed. Vancouver was seeking to use its powers to do business to affect matters in another part of the world. The authority of the municipality did not extend to include the imposition of a boycott based on matters external to the interests of its citizens. However, a dissenting judgment observed that the courts ought to adopt a deferential approach to the review of municipal decisions:Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold…[26] [34] This comment was referred to and relied on in Nanaimo (City) v. Rascal Trucking Ltd.[27] In that case the City of Nanaimo granted a permit to deposit 15,000 cubic yards of soil at a particular location. Neighbouring residents complained. The council of the City passed a resolution, pursuant to a particular provision of the Municipal Act declaring the deposited soil to be a nuisance. It ordered that the soil be removed. The parties involved refused to comply. The municipality brought a petition seeking a declaration allowing it to enter the property and remove the soil. The parties involved responded by filing a second petition requesting that the court quash Nanaimo’s resolutions on the basis that the City exceeded its jurisdiction by declaring the pile of soil to be a nuisance. The Court of Appeal quashed the resolutions and the court orders. The Supreme Court of Canada allowed the subsequent appeal. Apart from quoting the dissent from Shell Canada Products Ltd. v. Vancouver the Court noted:In light of the conclusion that Nanaimo acted within its jurisdiction in passing the resolutions at issue, it is necessary to consider the standard upon which the courts may review those intra vires municipal decisions. Municipal councillors are elected by the constituents they represent and as such are more conversant with the exigencies of their community than are the courts. The fact that municipal councils are elected representatives of their community, and accountable to their constituents, is relevant in scrutinizing intra vires decisions. The reality that municipalities often balance complex and divergent interests in arriving at decisions in the public interest is of similar importance. In short, these considerations warrant that the intra vires decision of municipalities be reviewed upon a deferential standard.[28] [35] The fact that a long-standing opponent to the project is unhappy with the information found in the Update Report is not a reason for the Court to step in and impose its sense of the complex balancing required of the council in adopting the resolution allowing the project to proceed.
[36] The problem is underscored by the position taken on behalf of the City of Greater Sudbury. It submits that each of the requests made of the staff was dealt with within the material provided in preparation for the special meeting of June 16, 2021. As referred to in its factum:• Compilation of Previously Available Reports and Materials
• Update to the Assessment of a renovated Sudbury Community Arena
• Evaluation of How Each Site Aligns with the City’s CEEP
• Availability of Government Funding for the Project
• More Robust Economic Impact Analysis
• Consideration of the Public Consultation Previously Performed
• Update of Capital and Operating Cost Assumptions found in earlier Reports
• Identity of the Hotel Proponent and the Financial Situation of Gateway were all considered and were part of the work provided to council in preparation for the special meeting held on June 16, 2021.[29] This was discussed at length in the affidavit provided by the City solicitor in response to the application.[30] It is not for the court to review the substance and nature of the work done to determine if it responds satisfactorily to the requests made by councillors and whether, in the circumstances, council is in a position to evaluate and determine if and how to proceed. The court should not attempt to second guess what councillors, elected to determine these issues, have decided.
[37] There are limits to the deference provided. In Grosvenor v. East Luther Grand Valley (Township)[31] the municipality purchased an abandoned railway right of way which it developed as a multi-purpose trailway. The owners of land bordering the trailway were concerned with the lack of fencing protecting their lands. The Line Fences Act provided that where a municipality acquired lands that had been part of a railway line it was responsible for constructing, keeping up and repairing the fences that marked the lateral boundaries of the land. The landowners submitted a demand for fencing. The municipality responded by enacting a by-law which designated the trailway as a “highway”. “Highways” were an exception to the municipality’s responsibility to provide fencing. The by-law was passed without notice to anyone and given first, second and third reading at one sitting, at the end of a council meeting. The land owners applied to quash the by-law. The application judge granted the application. He found that the by-law was passed to avoid the municipality's obligation to fence and to pay the cost of fencing.
[38] In Grosvenor v. East Luther Grand Valley, the Court of Appeal recognized the modern jurisprudence dictating deference by the courts to municipalities exercising statutory powers on behalf of electors:…the Township relies very heavily on recent jurisprudence from the Supreme Court of Canada and from this court re-emphasizing the principle that courts should afford generous deference -- undertake a "benevolent construction" -- to the decisions of democratically elected municipal councils exercising their powers on behalf of their electors. This principle has its origins in the decision of the Supreme Court of Canada in Hamilton (City) v. Hamilton Distillery Co. (1907), 1907 CanLII 1 (SCC), 38 S.C.R. 239, at p. 249, drawing upon the "benevolent construction" approach enunciated by Russell L.C.J. in Kruse v. Johnson, [1898] 2 Q.B. 91, [1895-1899] All E.R. Rep. 105 (Div. Ct.). The more liberal approach to statutory construction of municipal enabling legislation was adopted by this court in Re Howard and Toronto (City) (1928), 1928 CanLII 427 (ON CA), 61 O.L.R. 563, [1928] O.J. No. 146 (C.A.), at p. 575 O.L.R.[32] [39] The Court of Appeal referred to both the dissent in Shell Canada Products Ltd. v. Vancouver and the adoption of a deferential approach to the enactment of by-laws by municipalities found in Nanaimo (City) v. Rascal Trucking Ltd. but went on to consider, in the face of requirement that afforded this generous deference to the decisions of elected councils, what role remained for the doctrine of good faith as a ground for quashing a by-law. The Municipal Act s. 272 states:A by-law passed in good faith under any Act shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law.
[40] In Grosvenor v. East Luther Grand Valley (Township) the Court of Appeal determined that good faith remains a central foundation for the validity of a municipal by-law enacted in conformity with a municipality's power. A by-law is enacted in bad faith where the council acted unreasonably and arbitrarily and without the degree of fairness, openness and impartiality required of a municipal government. The application judge had recognized that his role was not to second-guess what the council had done; rather, his findings led him to the conclusion that the municipality had acted for a collateral purpose and that the process followed had not been characterized by the frankness, openness, impartiality and regard for the rights of the respondents that was required of a municipality in the circumstances. His findings, and the inferences he drew from them, were all supportable on the record.
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[48] ... The Court of Appeal agreed and in so doing referred to the well-known text. Ian MacFee Rogers, The Law of Canadian Municipal Corporations which it quoted:The procedure adopted by a council in passing by-laws or in transacting any other business within its jurisdiction, in the absence of express statutory requirements, is a matter wholly of domestic concern and internal regulation. The courts will accordingly not give effect to objections based upon the failure of council to observe its established procedure, unless there is clear evidence of bad faith or fraudulent intent(s). . .[35]
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