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Municipal - General. Stelmach Project Management Ltd. v. Kingston (City)
In Stelmach Project Management Ltd. v. Kingston (City) (Ont CA, 2022) the Court of Appeal, in the course of ruling about an anti-circumvention case, comments on the 2001 revision to the Municipal Act:Municipal Act, 2001 and subsequent amendments
[18] As this court explained in Croplife Canada v. Toronto (City) (2005), 2005 CanLII 15709 (ON CA), 75 O.R. (3d) 357 (C.A.), leave to appeal ref’d, [2005] S.C.C.A. No. 329, the Municipal Act, 2001 constituted a significant change in the province’s approach to municipal powers, shifting from a prescriptive approach to a generous category or “sphere”-based approach, per Feldman J.A.:[6] The Municipal Act, 2001 … was the first overhaul of the old Act and its predecessors in 150 years. The purpose of creating a new Act was to give municipalities "the tools they need to tackle the challenges of governing in the 21st century" (Ontario Legislative Assembly, Official Report of Debates (Hansard), 53 (18 October 2001) at 1350 (Hon. Chris Hodgson)), including more authority, accountability and flexibility so that municipal governments would be able to deliver services as they saw fit.
[7] One of the ways in which the new Act introduces more flexibility is by giving municipalities two kinds of powers. Part II of the new Act, for the first time, gives municipalities the power of a natural person (s. 8) and as well, ten broad "spheres of jurisdiction" (s. 11) within which municipal councils have wide discretion to enact by-laws. Part III of the new Act gives municipalities specifically defined by-law making powers, as under the old Act. [19] The broad “spheres of jurisdiction” are set out in Part II of the Municipal Act, 2001, headed “General Municipal Powers”. Within this part, s. 10(2) confers on single-tier municipalities such as Kingston the general power to pass by-laws for 11 enumerated purposes considered necessary or desirable for the public good. Relevant to this appeal, these purposes include, in s. 10(2)(7), the power to pass by-laws in respect of services a municipality is authorized to provide.
[20] Part III, headed “Specific Municipal Powers” sets out specific municipal powers to make by-laws addressing a litany of matters such as highways, transportation, waste management, public utilities, and health and safety. A frequent verbal formulation used in the drafting of these provisions has them begin with the statement “[w]ithout limiting sections 9, 10 and 11, a municipality may pass by-laws …” This convention suggests that these specific powers are, in a sense, elaborations or specifications of the more general “spheres of jurisdiction” catalogued in Part II. The general powers co-exist with specific powers which may restrict or enlarge the broad general powers in s. 10 or set out requirements or procedures to be followed in exercising those general powers: John Mascarin and Christopher J. Williams, Ontario Municipal Act & Commentary, 2023 ed. (Markham: LexisNexis Canada Inc., 2022) at pp. 41-42. . Know Your City Inc. v. The Corporation of the City of Brantford [2021]
In Know Your City Inc. v. The Corporation of the City of Brantford (Div Ct, 2021) the Divisional Court considered doctrine applicable to judicial review of a municipal council decision:[35] In Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990 CanLII 31 (SCC), [1990] 3 S.C.R. 1170, the Supreme Court dealt with “the question of the application of the rules of natural justice or fairness to municipal councillors when they are called upon to make a decision after hearing representations from interested parties”: see p. 1175. In that case, the applicant was a residents association who was attacking the process by which a municipality had approved the rezoning and sale of certain lands, the conveyance of which had not yet been completed. One of the bases for its attack was an allegation that one municipal councillor had appeared before the municipal Finance Committee and spoken on behalf of the development that drove the rezoning. That same councillor then participated in the decision of the Community Committee of City Council that approved the rezoning application. The residents association objected to his participation at the Community Committee since he had already indicated his support of the project at the Finance Committee. In doing so, it alleged bias. Justice Sopinka, writing for the majority at p. 1197, articulated the following test for bias on the part of a municipal councillor:In my opinion, the test that is consistent with the functions of a municipal councillor and enables him or her to carry out the political and legislative duties entrusted to the councillor is one which requires that the objectors or supporters be heard by members of Council who are capable of being persuaded. The Legislature could not have intended to have a hearing before a body who has already made a decision which is irreversible. The party alleging disqualifying bias must establish that there is a prejudgement of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged. In this regard, it is important to keep in mind that support in favour of a measure before a committee and a vote in favour will not constitute disqualifying bias in the absence of some indication that the position taken is incapable of change. The contrary conclusion would result in the disqualification of a majority of Council in respect of all matters that are decided at public meetings at which objectors are entitled to be heard. ....
[39] In assessing KYC’s submissions , it is important to keep in mind the following points that have been made in the case law (including Old St. Boniface, supra):(i) Municipal councillors do not perform an adjudicative function in the same manner as judges. They perform a political function “the ultimate sanction of which lies in the electorate”: see Re McGill and City of Brantford (1980), 1980 CanLII 1741 (ON SC), 111 D.L.R. (3d) 405, at p. 411.
(ii) “[T]he standard for reasonable apprehension of bias may vary depending on the context and the type of function performed by the decision maker involved”: see Sierra Club Canada v. Ontario (Natural Resources and Transportation), 2011 ONSC 4655 (Div. Ct.), 344 D.L.R. (4th) 148, at para. 104.
(iii) Reviewing courts should apply a much more lenient test in assessing bias at the legislative end of the spectrum than they do with respect to allegations of bias at the adjudicative end of the spectrum. For decisions made by legislative bodies, the Supreme Court has held that “the threshold for establishing bias should be a very high one”: see Save Richmond Farmland Society v. Richmond (Township), 1990 CanLII 1132 (SCC), [1990] 3 S.C.R. 1213, at p. 1232.
(iv) Municipal councillors are entitled to form and express views about the matters that come before city councillors. In fact they “are expected to have opinions about what is best for their ward”: see Pattison Outdoor Advertising LP v. City of Toronto, 2016 ONSC 2419 (Div. Ct.), 348 O.A.C. 306, at para. 47.
(v) In order to establish disqualifying bias on the part of a municipal councillor there must be evidence that the position taken was “incapable of change” and that any “representations at variance with the view, which has been adopted, would be futile”: Old St. Boniface, at p. 1197. [40] In Save Richmond, supra, a municipal councillor, while campaigning for election, had made statements supporting a residential development. These included statements to the effect that, if elected, he would not change his mind even if the municipality held public hearings on the matter. The Supreme Court applied the test in Old St. Boniface and found that the councillor should not be disqualified for bias as the evidence did not establish the he had a completely closed mind on the issue. In a subsequent case, the Supreme Court commented on the decision in Save Richmond and stated that “to have ruled otherwise would have distorted the democratic process by discouraging politicians from expressing their views openly”: see Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623, at p. 638. . Know Your City Inc. v. The Corporation of the City of Brantford [2020]
In Know Your City Inc. v. The Corporation of the City of Brantford (Div Ct, 2020) the Divisional Court considers a bias issue in the context of elected municipal officials:[44] The case law is clear that the bar is high for demonstrating bias when dealing with the decisions of elected officials performing legislative functions. City Councilors are not disqualified from participating in a vote simply because they have already expressed views, even strong views, on a matter: Pattison Outdoor Advertising LP v City of Toronto, 2016 ONSC 2419 (Div. Ct.), at paras. 43-45. In order to succeed, Know Your City will have to show that Council members had closed minds and that their minds could not be changed, as described in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990 CanLII 31 (SCC), [1990] 3 SCR 1170, at p. 1197: …there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged. In this regard it is important to keep in mind that support in favour of a measure before a committee and a vote in favour will not constitute disqualifying bias in the absence of some indication that the position taken is incapable of change. The contrary conclusion would result in the disqualification of a majority of Council in respect of all matters that are decided at public meetings at which objectors are entitled to be heard.
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