Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, THEN AND JENNINGS JJ.
B E T W E E N:
YUE HUA CHEN Applicant
- and -
THE CORPORATION OF THE TOWN OF MARKHAM Respondent
Leonard Hochberg, for the Applicant Barnet H. Kussner, for the Respondent
HEARD: December 3, 2003
Oral Reasons for Judgment
LANE J.: (Orally)
1This is an application for judicial review of a decision made on April 15th, 2003 by the Town of Markham Licensing Committee refusing renewal of the applicant’s licence to own and operate a body rub parlour called “Amazing Health”.
2The recommendation of the Committee was subsequently adopted by council and the applicant informed that her licence would not be renewed.
3The applicant comes to us for judicial review of this decision pursuant to our jurisdiction under the Judicial Review Procedure Act, ss. 21 and 61. It is important to note that the relief sought is similar to an order in the nature of mandamus and that imposes certain limitations upon us as will appear in a moment.
4The statutory power being exercised here is granted under s.30 of By-law 116-98 as amended by By-law 2001-190 of the Town of Markham. The By-law was enacted pursuant to ss.224 and 257.2 of the Municipal Act, which authorize council to pass by-laws for licensing, regulating, governing, classifying and inspecting body rub parlours and for revoking or suspending any such licence and for other powers. Section 257.3 of the Municipal Act states that the power to grant or refuse a business licence is in the discretion of council.
5By way of background, the applicant was first issued a body rub parlour licence in Markham in 1998. It has been renewed on an annual basis from 1998 until 2002. In the fall of 2002 the applicant submitted a completed renewal application to the Town. In January and February, 2003, while her application was still before the Town, the applicant and a number of her employees at the body rub parlour were charged with a series of offences contrary to the by-law governing the operation of the body rub parlours.
6The Town’s licensing officer wrote to the applicant in February to notify her that he would be recommending that her business licence not be renewed. She was informed of her right to a hearing and exercised that right. While her application for renewal of the licence was pending, she continued to operate the business in the early part of 2003, although the licence had actually expired.
7Inspections of the premises were conducted on March 20th and March 23rd, 2003 at a time when the applicant knew that the Licensing Committee was about to meet to deal with her application to renew. The inspections revealed a number of non-compliances.
8On April 15, 2003, the Committee of Council charged with licensing matters, consisting of three councillors, held a hearing on the applicant’s application. Three witnesses were heard, two were police officers. They testified to certain facts relating to violations which they had personally witnessed and gave evidence that in their opinion the applicant had violated the by-law in these respects. No evidence was given regarding the outcome of proceedings before the Courts in respect of any of these matters.
9The Licensing Committee decided not to renew the applicant’s licence. For reasons which it gave, it focused on the offences that had occurred in the early part of 2003 while the application for renewal was pending. Council approved the recommendation of the Licensing Committee at its meeting on April 29th, 2003 and also determined, as it could under the by-law, that the decision would not be stayed by any appeal. Notwithstanding the commencement of these proceedings, the applicant received an order to comply under the by-law on May 2nd, 2003 and her business ceased operations on or about May 11th, 2003.
10Before us the applicant raises two basic issues. The first is an issue of fairness in the conduct of the hearing and the second is an issue of unreasonableness in the finding of the Committee.
11Turning first to the fairness issue. It is alleged that the Committee failed to give the applicant natural justice in the manner in which it conducted the hearing. Before us that was developed to indicate that the real complaint was the absence of an independent member on what was referred to as the tribunal. As I have already noted the Committee consisted entirely of elected officials, namely three councillors of the Town. In our view, the complaint made misconceives the nature of the body hearing the application. This is not a case of a tribunal overseeing the work of a municipality and determining whether to overthrow or maintain that work. This is a case of the municipality itself making its own decision. The legislation contemplates that the decision, which is specifically a discretionary decision of the municipality under the statute, shall be made by the municipality itself. The Courts exist to perform the function of overseeing the manner in which such decisions are made. But, in the first instance the body charged with making those decisions must make them itself. It is therefore not only impractical but probably contrary to the statute to do as the applicant says should have been done and introduce into the decision making body, that is to say the Licensing Committee, some person independent of the municipality. That would have a non-elected person participating in the making of decisions confided by the statute to elected persons. There is, in our view, no merit in this objection to the fairness of the hearing before the Council.
12A second objection to the fairness of that hearing was that there was a relationship between the major witnesses who were either police employed by the York Region Police Service or inspectors employed by the Town itself. It was said therefore that it was unfair and unreasonable to have evidence of people who had this relationship with the Town accepted by the Committee when it was not corroborated by any other evidence.
13In our view, in the area of by-law enforcement it is inevitable that by-law enforcement officers will be offering the major testimony upon which committees will rely, since they are investigators. In our view, this is not unfair. The Committee is well aware that the witnesses are employed by it and it is not an unfair situation provided that the applicant is given an opportunity for a hearing before persons whose minds are open to persuasion. There is no evidence before us to suggest that the minds of the councillors were not open to persuasion.
14In summary on the fairness issue, the applicant received a full hearing with notice of all of the allegations in advance, the documentary evidence was sent to the applicant, the applicant was represented by counsel, English is not her first language and so a translator was available. It is important to observe, in the context of the acceptance of the evidence of the police and by-law officers by the council, that the applicant owner was offered the opportunity to call evidence and was actually informed that it would be open to the Committee to draw an adverse inference from her failure to do so and she chose not to do so.
15In our view, when all of these matters are considered, the hearing before the Licensing Commission was a fair hearing and accordingly, the first ground, the failure to give the applicant natural justice is not given effect to.
16The second ground was the patently unreasonable act of the Committee in accepting the evidence against the appeal. The Committee accepted the eye-witness evidence of the police officers as to things that had occurred in the parlour while they were present. The Committee also looked at the history of the body rub parlour which was not an improper thing for it to do. The Committee had no evidence from the owner contrary to the evidence of the police and by-law inspectors. It was not patently unreasonable of the Committee to act on that evidence. Accordingly, the second major issue also fails. Accordingly, the application is dismissed.
17The application record has been endorsed as follows: “The application is dismissed for reasons dictated. Costs to the respondent fixed at $7,000 inclusive of disbursements and GST.”
LANE J.
THEN J.
JENNINGS J.
Date of Reasons for Judgment: December 3, 2003
Date of Release: December 15, 2003
COURT FILE NO.: 694/03
DATE: 20031203
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, THEN AND JENNINGS JJ.
B E T W E E N:
YUE HUA CHEN Applicant
- and -
THE CORPORATION OF THE TOWN OF MARKHAM Respondent
ORAL REASONS FOR JUDGMENT
LANE J.
Date of Reasons for Judgment: December 3, 2003
Date of Release: December 15, 2003