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Municipal - Fairness. Henhoeffer v. Georgian Bay (Township of)
In Henhoeffer v. Georgian Bay (Township of) (Div Court, 2023) the Divisional Court clarified that the fairness duty owed by a municipality on a Bylaw-authorized 'review' (here respecting landfill) was distinct from that owed by a tribunal or a court:Did the Township breach a duty of fairness
[48] This was not, as the Applicant would have it, a procedure or hearing similar to those conducted by a court or administrative tribunal. It is not intended to and does not resemble a judicial decision-making process. Rather it was a review, by the municipal council, of actions taken by its staff to confirm a proper consideration of the applicable facts in the context of a breach of a municipal by-law and to bring to bear any further considerations the councillors believe to be relevant.
[49] The review is mandated by the By-law to ensure the policies it represents are respected. The principal concern is the protection of the existing natural environment: the shoreline, the lake, plant, animal and maritime life. This is not something that as a matter of law has a significant impact on the lives of the Applicant and her husband. Either there is no impact, or they are required to rectify the damage they have caused. The impact is in the cost of undertaking the required remedial action which, if one accepts the values the manifested in the policies, will benefit their property.
[50] There is no promise of any particular process as presented through the By-law. Thus, there can be no legitimate expectation of any high level of procedural protection. As it is, the Applicant was well-aware of the problem as seen by the municipality through the input and communication with the Township staff. The Repair Order demonstrates the concern and what was seen as a breach of the By-law. The report prepared by David Leeder had been delivered to the Applicant on May 11, 2021. Before the meeting the Applicant received all of the documents that were to be relied on. The Applicant had the assistance of a land use planner and counsel. At the meeting of council, the Mayor explained the process, the By-law Enforcement Officer briefed the councillors in the presence of the public, including those representing the Applicant and those acting for her made submissions. They had an unfettered opportunity prior to and during the public meeting to provide any supporting documents and written submissions. The councillors adjourned to discuss the matter in private and subsequently announced their decision leaving the Repair Order to stand.
[51] This is a decision of a municipal council. They do not speak through written reasons but through the passage of by-laws and resolutions. Their role in a case like this is not judicial, it is administrative; it is the review of an administrative act being the issue of a repair order by the staff of the municipality. The reasons can be deduced from the record as a whole which includes the Repair Order, the resolution of council, any investigative reports and the reasoning that those reports adopt:Admittedly, applying an approach to judicial review that prioritizes the decision maker’s justification for its decisions can be challenging in cases in which formal reasons have not been provided. This will often occur where the decision-making process does not easily lend itself to producing a single set of reasons, for example, where a municipality passes a bylaw or a law society renders a decision by holding a vote: see, e.g., Catalyst; Green; Trinity Western University. However, even in such circumstances, the reasoning process that underlies the decision will not usually be opaque. It is important to recall that a reviewing court must look to the record as a whole to understand the decision, and that in doing so, the court will often uncover a clear rationale for the decision: Baker, at para. 44 [42]
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In this case, I find that the combination of the Resolution, and the detailed investigative report and the reasoning it adopts, provides a robust set of reasons that exceed what would ordinarily be expected or required of a municipal council, even for this more adjudicative type of decision.[43]
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