City of Ottawa v. Minister of Municipal Affairs and Housing
[Indexed as: Ottawa (City) v. Ontario (Minister of Municipal Affairs and Housing)]
63 O.R. (3d) 785
[2003] O.J. No. 1026
Docket No. 100/03
Ontario Superior Court of Justice
Divisional Court
A. Campbell, Lane, and Coo JJ.
March 21, 2003
Municipal law -- Amalgamation -- Ward boundaries -- By-law redividing municipality into wards -- Municipality passing by- law establishing new boundaries for wards -- By-law dividing municipality into wards not coming into effect until after next regular election -- By-law redividing municipality into wards may be effective in year of next election -- Municipal Act, R.S.O. 1990, c. M.45, ss. 13.1(2), (8), (9), (10), 13(4), (9), (11).
Where a by-law redividing a municipality into wards is enacted in the year of the next regular election, it may be effective for that election.
STATED CASE pursuant to s. 94 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28.
Cases referred to Jabel Image Concepts Inc. v. M.N.R. (2000), 2000 15319 (FCA), 257 N.R. 193, [2000] F.C.J. No. 894 (Quicklaw), [2000] G.S.T.C. 45 (F.C.A.) Statutes referred to Municipal Act, 2001, S.O. 2001, c. 25 Municipal Act, R.S.O. 1990, c. M.45, ss. 13, 13.1, 25 Ontario Municipal Board Act, R.S.O. 1990, c. O.28, s. 94
George Rust-D'Eye and Barnet Kussner, for the City of Ottawa. Leslie McIntosh, for Ministry of Municipal Affairs and Housing. No one appearing for other parties to the O.M.B. appeal. [page786]
[1] Endorsement by LANE J.: -- This is a question posed by stated case under s. 94 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28. All references hereinafter are to legislative provisions as they existed at what counsel have in effect agreed was the relevant time. The new Municipal Act, 2001, S.O. 2001, c. 25, in force January 1, 2003, was not relied on by either side except by way of analogy.
[2] The question reads as follows:
Therefore could an order of the OMB issued after January 1, 2003 to affirm or amend the city's ward boundary bylaw no. 2002-316 be effective for the 2003 regular municipal elections?
[3] For the following reasons, the answer to the question is yes.
[4] The Board is, under s. 13.1(2) of the Municipal Act ("Act"), conducting three companion appeals dealing with ratepayer objections to the City of Ottawa By-law 2002-316 which changed the ward boundaries of the amalgamated City. The by-law mapped out the new boundaries of the wards, some of which were changed to a degree or extent not revealed in the material we have. It also provides:
The wards described in Schedules A-1 to A-21, inclusive, attached hereto are established for the City of Ottawa effective December 1, 2003.
The wards described in Schedules A-1 to A-21, inclusive, shall serve as the basis for administering the municipal election to be held on November 10, 2003.
[5] The significance of the effective date of December 1, 2003, is that it marks the commencement of the new term of office for those elected in the November election.
[6] The by-law was passed on July 24, 2002, under s. 13(4) of the Municipal Act, which is as follows:
13(4) The council of a local municipality may pass a by-law dividing or redividing the municipality into wards or dissolving the existing wards.
[7] Prior to the enactment of s. 13(4), the alteration of ward boundaries, like the creation or termination of a ward system, was accomplished only by an order of the Board. Amendments to the legislation in 1996 empowered municipalities to make these changes by by-law, subject to appeal to the Board.
[8] After the enactment of By-law 2002-316, the three appeals were launched in August 2002. A consolidated hearing was ordered and a pre-hearing conference was set for October 17, 2002. On that date, counsel for the Ministry served a Ministerial Notice requiring the Board, under s. 25 of the Municipal Act, to defer consideration of the appeals until further notice. Fearful that the delay would make it impossible to implement the new ward boundaries for [page787] the 2003 election, the City asked the Board to continue the hearing despite the Notice and was refused.
[9] The City then launched Judicial Review proceedings which were successful. E. Macdonald J., acting on an urgency basis, quashed the Notice as ultra vires on December 13, 2002. Although an application for leave to appeal is outstanding, the Board agreed to proceed with the hearing of the appeals and also stated this case to this court to clarify its powers in the situation.
[10] The Board wants to know whether it has jurisdiction to make an order, as part of its disposition of the appeals, determining whether the by-law will or will not go into operation for the election in Ottawa which will take place on November 10, 2003. Nomination procedures may already be under way, and must end by September 24. The Board requires an immediate answer to its question, since final arguments are scheduled to be received next week.
[11] The Board's authority on the appeals is to be found in s. 13.1(8), (9) and (10) of the Municipal Act:
13.1(8) The Board shall hold a hearing and may,
(a) dismiss the appeal; or
(b) allow the appeal in whole or in part.
(9) When the Board allows the appeal, it may make an order,
(a) repealing all or part of the by-law, or amending the by-law, or doing both; or
(b) directing the council to repeal all or part of the by-law, to amend the by-law, or to do both.
(10) If one or more appeals have been filed under subsection (2), the by-law comes into force when the appeals have been withdrawn or finally disposed of; the by-law as amended by the Board or at its direction, shall be deemed to have come into force on the day it was passed, unless the Board orders otherwise.
[12] The Ministry submitted that the guiding principle in interpreting the relevant portions of the Act is that ward boundaries cannot be changed after January 1 of any year in which there is a regular municipal election. It relies on ss. 13 and 13.1 of the Act, which when read together are said to provide that an order of the Board made after January 1, 2003, affirming or amending By-law 2002-316, cannot take effect until after the 2003 election.
[13] The sections are as follows:
13(9) A by-law dividing a municipality into wards or dissolving the existing wards that is passed after January 1 in the year of a regular election under the Municipal Elections Act, 1996 does not come into force until after the next regular election under that Act.
. . . . . [page788]
(11) Subsections (9) and (10) also apply, with necessary modifications, to an order dividing a municipality into wards or dissolving the existing wards that is made under this or any other Act.
(Emphasis added)
[14] It is argued that no order of the Board, referred to in s. 13(11), may have the effect of providing that the by-law will have application to the November 2003 election because any such provision would conflict with the specific language, adopted by reference, in s. 13(9) that the by-law must not "come into force until after the next regular election . . . under [the Municipal Elections Act] . . .".
[15] In response to this argument, the City submits that its by-law deals with redividing the municipality into wards, and s. 13(9) and 13(11) make no reference to such a by-law but only to those ". . . dividing a municipality into wards or dissolving the existing wards . . .".
[16] Section 13(4) grants to municipalities the power of "dividing or redividing" the municipality into wards. It seems to us that "dividing" is an apt description of the process of the first creation of wards and that "redividing" deals with the process of implementing subsequent changes. This view is supported by the scheme of s. 13, which starts with the provisions in subsection (1)(a) and (b), which are as follows:
13(1) At the time of incorporating or erecting a local municipality, the Municipal Board,
(a) in the case of a city, shall make an order dividing it into wards;
(b) in any other case, may make an order dividing it into wards.
[17] Thereafter, jurisdiction passed, under s. 13(4), to the council of a local municipality, to divide, presumably, if it had not been done under subsection 13(1)(b), or redivide, presumably if it had previously been done.
[18] It is a first principle of interpretation that such differences in words used in one part of legislation and not used in another part of the same legislation are intentional. [See Note 1 at end of document] It follows that subsections (9) and (11) were intended to have no application to a by-law "redividing" wards. Accordingly, s. 13(9) and (11) do not prohibit the by-law from coming into effect after January 1, 2003.
[19] It was submitted that there are numerous disadvantages in having such a by-law come into effect after the 1st of January [page789] in an election year. Nominations may have taken place and funds raised based on the former boundaries. In our view, such considerations as were drawn to our attention do not make the interpretation to which we have come an absurdity or unlikely to reflect the real intention of the legislation and therefore cannot prevail over the clear language. In any event, Council can deal with any such problems by, if necessary, itself making the decision to postpone implementation of the revised boundaries.
[20] Thus, if the Board simply dismisses the appeal of the ratepayers, the by-law will come into effect on the day of dismissal and, in accordance with its terms, will govern the wards for the 2003 election. Section 13.1(10) of the Act, supra, so provides, in the portion before the semicolon.
[21] In our view the Board cannot dismiss the appeals and, at the same time, decide that the by-law shall not come into effect in time for the November 10, 2003 election. Section 13.1(10), supra, in the portion following the semicolon, deals with amended by-laws, deeming them to have come into effect on the day of original passage, unless the Board orders otherwise. The way the section is laid out is somewhat confusing, but the semicolon appears to separate two distinct provisions, the first dealing with simple dismissal and the second dealing with by-laws amended as a result of the appeal. Without amending the by-law, or directing that it be amended, the Board does not have the power to "order otherwise". It would have to amend the provision in the by-law fixing the day on which the by-law becomes effective, in order to avoid having the new ward boundaries apply to the 2003 election.
[22] For these reasons, we have answered the question in the stated case: Yes.
[23] Unless counsel forthwith advise that they wish to address the issue of costs before us, there will be no costs.
Order accordingly.
Notes
Note 1: See, for example, Jabel Image Concepts v. M.N.R. (2000), 2000 15319 (FCA), 257 N.R. 193, [2000] F.C.J. No. 894 (Quicklaw) at para. 12 (F.C.A.): "When an Act uses different words in relation to the same subject, such a choice by Parliament must be considered intentional and indicative of a change in meaning or a different meaning."