The Corporation of the Town of Wingham v. The Corporation of the County of Huron et al.

The Corporation of the Town of Goderich v. The Corporation of the County of Huron et al.

[Indexed as: Wingham (Town) v. Huron (County)]

52 O.R. (3d) 681

[2001] O.J. No. 485

Docket Nos. C34469, C34470 and C34471

Court of Appeal for Ontario,

Abella, Borins and Sharpe JJ.A.

February 15, 2001

Municipal law--Restructuring--Uploading by-law--Upper-tier municipality passing by-law pursuant to s. 209.2 of Municipal Act to assume police services provided by local municipalities --Uploading by-law requiring triple majority approval --Majority of local municipalities approving by-law but consents conditional on method of costing of police services --Conditional consent not amounting to consents within meaning of s. 209.2 of Municipal Act--Uploading by-law not coming into force--Uploading by-law properly repealed --Municipal Act, R.S.O. 1990, c. M.45, s. 209.2.

Section 209.2 of the Municipal Act authorizes an "uploading by-law", that is, it authorizes an upper-tier municipality to pass a by-law to assume a local municipality's power to provide certain municipal services. Subsection 209.2(2) provides that an uploading by-law does not come into force unless there is a triple majority approval requiring (a) a majority of all votes on council of the upper-tier municipality, (b) the consent of a majority of the councils of the local municipalities forming part of the upper-tier municipality, and (c) that the total number of electors in the local municipalities that have passed resolutions to consent to the by-law form a majority of all the electors in the upper-tier municipality. Subsection 209.2(3) provides that once an uploading by-law comes into force it shall not be repealed. Pursuant to s. 209.2 of the Municipal Act, the Council of Huron County, an upper-tier municipality, passed By-law 9 of 1999 purporting to assume the power to provide police services to its local municipalities. Seventeen local municipalities, a clear majority, passed resolutions consenting to the by-law, but the consents were expressed to be "predicated on the cost allocation being based on workload levels of service". Costing based on workload levels favoured the smaller municipalities while the alternative method of costing, costing on an assessment basis, favoured the larger municipalities. Huron County repealed the uploading by-law. The appellant municipalities brought a proceeding for a declaration that the by-law had come into force and could not be repealed. They were unsuccessful and appealed.

Held, the appeal should be dismissed.

It was clear from the record that the method of costing the uploading of police services to the County was a matter of detailed consideration before the by-law was passed. The consents necessary to trigger the triple majority must be interpreted in light of their factual background. In this context, the consents were conditional and did not amount to consents within the meaning of s. 209.2 of the Municipal Act. The by-law never came into force and could be repealed.

APPEAL from an application to determine the validity of a by- law passed pursuant to s. 209.2 of the Municipal Act, R.S.O. 1990, c. M.45, as amended.

Statutes referred to Municipal Act, R.S.O. 1990, c. M.45, s. 209.2 [en. S.O. 1996, c. 1, Sched. M, s. 6]

John Skinner, Q.C., for the Town of Wingham. Ben A. Jetten and Allison A. Thornton, for the Town of Goderich. Thomas W. Teahen, for Howick, Bayfield, Bluewater, Ashfield, Colbourne, Wawanash. George H. Rust-D'Eye, for the County of Huron.

The judgment of the court was delivered by

Introduction

1SHARPE J.A.: -- Huron County Council passed By-law 9 of 1999 purporting to assume, as an upper-tier municipality, the power to provide police services to all of its local municipalities. The issues on this appeal are whether By-law 9 is valid and whether the requisite steps were taken to bring it into force.

2The purpose of By-law 9 is set out in s. 1:

THAT the County hereby assumes all of the rights, powers, duties, and responsibilities under the [Municipal] Act and under any other applicable legislation including, without limitation, the Police Services Act, R.S.O. 1990, c. P.15 (the "PSA"), to provide police services and policing facilities in, for, and on behalf of all of the local municipalities in the County.

3By-law 9 was enacted pursuant to s. 209.2 of the Municipal Act, R.S.O. 1990, c. M.45 as amended, which provides for the "uploading" of the power to provide certain municipal services from local municipalities to an upper-tier municipality:

209.2(1) An upper-tier municipality may pass a by-law,

(a) despite any Act, to assume a local power to provide a prescribed service or facility for all of its local municipalities; and

(b) to provide for transitional matters to facilitate the assumption of the local power.

(2) A by-law under subsection (1) shall not come into force unless,

(a) a majority of all votes on the council of the upper-tier municipality are cast in its favour;

(b) a majority of the councils of all the local municipalities forming part of the upper-tier municipality for municipal purposes have passed resolutions giving their consent to the by-law; and

(c) the total number of electors in the local municipalities which have passed resolutions under clause (b) form a majority of all the electors in the upper-tier municipality.

(3) A provision of a by-law of an upper-tier municipality to assume a local power passed under clause (1)(a) shall not be repealed in whole or in part after it comes into force.

(4) Despite subsection (3), a by-law of an upper-tier municipality passed under subsection (1) shall be deemed to be repealed to the extent it conflicts with a subsequent by- law of a local municipality under section 209.4.

4Huron County Council repealed By-law 9, but as can be seen from s. 209.2(3), it is beyond the power of a municipality to repeal an "uploading" by-law after it has come into force. Two municipalities, the Town of Goderich and the Town of Wingham, the appellants before this court, brought applications for declaratory and other relief. They assert that By-law 9 is valid and that it did come into force.

Decision Below

5The applications judge held that By-law 9 was defective as it failed to provide certain essential details of the uploading scheme. He found that By-law 9 was of no force or effect and that it should be quashed.

Analysis

6The threshold issue on this appeal is whether a majority of the councils of the local municipalities can be said to have consented to By-law 9 within the meaning of s. 209.2(2)(b).

7Section 209.2(2) provides that an "uploading" bylaw does not come into force unless there is a "triple majority approval" consisting of (a) a majority of all votes on the council of the upper-tier municipality, (b) a majority of the councils of all the local municipalities forming part of the upper-tier municipality, and (c) that the total number of electors in the local municipalities that have passed resolutions to consent to the by-law form a majority of all the electors in the upper-tier municipality.

8Seventeen local municipalities, a clear majority of the local municipalities in Huron County, passed resolutions consenting to By-law 9. However, of the 17 municipalities that purported to consent to the by-law, 11 expressly stated that consent was "predicated on the cost allocation being based on workload levels of service". The remaining six municipalities passed resolutions consenting to the by-law without reservation, but subsequently passed resolutions indicating that their consent as well had been "predicated on the cost allocation being based on workload levels of service".

9The issue is whether consents in these terms were sufficient to bring By-law 9 into force pursuant to s. 209.2(2). The appellants submit that the word "predicated" is not the equivalent of "conditional". They say that the local municipalities had a choice either to consent to the by-law or not. They chose to consent to it. The "predicated" clause merely expressed a reason for the consent or perhaps a hope as to the allocation of the cost of the uploaded police services. However, the appellants say that once the triple majority was satisfied, By-law 9 came into force by operation of law, with all that entails. In particular, the appellants say that the statutory scheme confers responsibility for payment for police services upon the County of Huron. Once By-law 9 came into force, the county and the local municipalities that consented to it must live with the consequences, whatever those consequences may be.

10In my view, the appellants' argument ignores the relevant history of By-law 9. It is clear from the record that the method of costing the uploading of police services to the County was a matter of detailed consideration before the by-law was passed. We were referred to reports of the Huron County Administration, Finance and Personnel Committee that considered the uploading proposal. The minutes of that committee, the reports of which were sent to the local municipalities prior to their consent to the by-law, clearly propose cost allocation being based on workload/levels of service. That proposed method of costing police services would favour the smaller municipalities that voted to consent to By-law 9. The alternative method of allocating costs on an assessment basis would favour larger municipalities such as the appellants.

11By-law 9 contains no reference to the costing method to be adopted. After it was passed, but before it had been declared in force as having been consented to by the required number of municipalities, concern was expressed as to whether it was legally possible for the county to adopt cost-allocation based on workload/levels of service. The Town of Goderich, which had not consented to By-law 9, asked that the cost be allocated on the basis of assessment, a method that would favour it and disfavour the municipalities that had already consented to it.

12The minutes of a meeting of the Administration, Finance and Personnel Committee, held after the by-law was passed but before all the local municipalities had dealt with the issue of consent, indicate the following:

County Council has consistently directed that policing costs be cost allocated on the basis of workload/levels of service provided. All reports, actions and by-laws approved by County Council to date have been predicated on policing costs being allocated on the basis of workload/levels of service provided.

(Emphasis added)

The minutes of the committee go on to indicate:

It is clear that the question put to municipalities, and their subsequent answers, were predicated on the cost allocation for the OPP County-wide Contract being by workload/levels of service provided.

(Emphasis added)

The minutes then state:

As there continues to be differing opinions on the cost allocation by workload/levels of service provided which has been chosen by County Council and the majority of the local councils as evidenced by their responses to the November 26, 1998 question, a legal review of the questions has been sought.

In order to clarify to both the Town of Goderich and the Township of Howick that all reports, actions and by-laws approved, and to be approved, are predicated on policing costs being cost allocated on the basis of workload/levels of service provided; it is recommended that all municipalities consenting to County of Huron Bylaw No. 9, 1999, do so on the basis of their consent being predicated on the cost allocation being based on workload/levels of service provided. Such an indication by each local municipality would clarify the scope and basis for each local municipality's consent to the County's By-law.

(Emphasis added)

13It is clear beyond any doubt that by couching their consent in terms "predicated on the cost allocation being based on workload/levels of service", the local municipalities were following the committee's direction so as to "clarify the scope and basis" for their consent.

14The consents pursuant to s. 209.2(2)(b) necessary to trigger the triple majority must be interpreted in light of this factual background. That background leads to the conclusion that there has not been sufficient consent of By-law 9 pursuant to s. 209.2(2) to bring it into force. In some contexts, consent "predicated" upon certain factual contingencies might not indicate conditional consent. However, in this factual context, taken as a whole, the language used by the 17 municipalities that consented to By-law 9 did amount to a consent that was conditional upon a cost allocation based on workload/levels of service. A conditional consent, especially where conditioned upon a contingency that never materialized, does not amount to a consent within the meaning of s. 209.2(2) (b) of the Municipal Act. On the record before us, it is clear that the costing method was a crucial element of the uploading scheme. I cannot accept the proposition that despite having qualified their consent, the local municipalities should nonetheless be bound by what would almost certainly be a very different scheme.

Disposition

15In view of this conclusion on the threshold issue of consent, it is unnecessary to consider the points upon which the applications court judge based his decision.

16The circumstances do not call for a quashing of the by- law. Although By-law 9 was passed, it never came into force. Accordingly, s. 209.2(3) did not prevent the County from repealing it. As it has been repealed, it is not operative. I would accordingly dismiss the appeal, but set aside the order of the applications court judge and in its place, order that the application be dismissed. The applications court judge made no order as to costs. The same order should be made here.