COURT FILE NO.: 1558
DATE: 2006-02-28
ONTARIO
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE
In the matter of an application to the Ontario Municipal Board under Section 223 of the Municipal Act, 2001, S.O. 2001, c. 25 resulting from a petition to redivide the wards of The Corporation of the City of London.
RE: BEVERLEY WAGAR, STEPHEN TURNER, ROBERT PORTER and GIL WARREN v. THE CORPORATION OF THE CITY OF LONDON.
BEFORE: Mr. Justice D. R. McDermid at London on February 13, 2006.
COUNSEL: G. Rust-D’Eye, for the Corporation of the City of London, Appellant.
N. Pizzale, for Beverley Wagar, Stephen Turner, Robert Porter and Gil Warren, Respondents.
REASONS ON MOTION FOR LEAVE TO APPEAL
[1] The Corporation of the City of London, (“the City”), seeks leave to appeal to the Divisional Court from the order of D. L. Gates, a member of the Ontario Municipal Board, (“the Board”), dated December 30, 2005, which states:
THE BOARD ORDERS that the Ward Boundaries of the City of London are redivided as set out in Attachment 1 to this Order, which is based on the evidence the Board heard including representation by population, communities of interest and the other criteria as set out in the decision.
[2] Originally, the City sought leave by notice of motion to appeal to the Divisional Court from Mr. Gates’s written decision dated November 22, 2005. Subsequently the order of December 30, 2005 was issued. Mr. Rust-D’Eye then delivered a fresh as amended notice of motion seeking leave to appeal from the order. Mr. Pizzale submits that it was delivered late, and that he did not have the time required by the rules to review the material that had been served upon him. I find that the respondents were well aware of the issues that the City was advancing, which really did not change materially as a result of the issuing of the order of December 30, 2005 or the delivery of the fresh as amended notice of motion. The appellants were not caught by surprise and I can find no prejudice accruing to them. In fact, Mr. Pizzale presented a full and able argument. Accordingly, an order will go permitting short service.
[3] The effect of the order from which leave to appeal is sought is to alter the old model of 7 wards and to redivide them to create 14 wards.
[4] In this case, an appeal lies to the Divisional Court only with leave of the Divisional Court and only on a question of law alone. [^1]
[5] Counsel agree that I should apply the following test in deciding whether or not to grant leave:
On an application such as this, leave to appeal from a decision of the Board must be granted only where the court is satisfied that there is a point of law of sufficient importance to merit the attention of the Divisional Court and there is some reason to doubt the correctness of the Board’s decision. [^2]
[6] In order to determine whether the City has met the test, I must assess the importance of the points of law it raises to determine if they are of sufficient importance to merit the attention of the Divisional Court and engage in an analysis of them in order to be able to decide if there is some reason to doubt the correctness of the Board’s decision.
[7] It is well settled that there is a difference between doubting the correctness of a decision and concluding that it is wrong. [^3] It is not necessary to conclude that the decision in question is wrong or even probably wrong, but that its correctness is open to very serious debate. [^4]
[8] There is no real dispute about the basic, relevant facts. For the sake of convenience, they are set forth in the City’s factum at paragraph 1, paragraphs 6 to 17 inclusive, paragraphs 23 to 25 inclusive, and paragraph 27. Some of the paragraphs in the City’s factum are argumentative or comprise a review of the evidence led before the Board. The ones I have referred to are sufficient, along with these reasons, to provide the basic factual framework within which to decide the matters in issue.
[9] In its confirmation of motion form, the City indicates that it is relying on only six of the 22 points it raises in its notice of motion for leave to appeal.
[10] Most of the submissions dealt with issues 16 and 17, which were the first ones that were argued:
Did the Board err in law in determining it had jurisdiction to adjust the composition of a local municipality, and the number of councillors per ward, when that entire discretion is conferred upon the municipal council by section 217 of the Municipal Act, 2001 to be exercised by by-law?
Is a by-law of the City required pursuant to s. 217 of the Municipal Act, 2001 to reduce the number of councillors from two per ward as stipulated in O. Reg. 561/93 to one per ward as stipulated by the Board in its decision?
[11] Before beginning, I note the inaccuracy in the statement of issue 16, namely, that the Board’s order adjusted the number of councillors per ward. In fact, as reproduced above, its order was confined to establishing 14 wards and did not speak to the number of councillors per ward. Similarly, regarding the statement of issue 17, the Board did not stipulate one councillor per ward in its order or any other particular number. With these qualifications, I go on to consider the broader issues raised by these questions on their merits and to apply the test already cited.
[12] The main part of the test that was addressed was whether there is some reason to doubt the correctness of the Board’s decision. The issue was argued fully and ably on both sides.
[13] As I understand the City’s position it is, in summary, as follows:
(a) City Council has exclusive jurisdiction pursuant to s. 217(1) of the Municipal Act, 2001 to change its composition.
(b) The composition of City Council was fixed by Ontario Regulation 561/93 passed pursuant to the London Middlesex Act, 1992 and comprises 7 wards with two councillors to be elected from each ward.
(c) When that Act was repealed incidental to the enactment of the Municipal Act, 2001, Regulation 561/93 also fell but the composition of City Council was continued by s. 458 and the City’s ward structure was continued by s. 459 of the Municipal Act, 2001.
(d) The composition of City Council as fixed by sections 458 and 459 cannot be changed by the Board.
(e) Specifically, s. 223 of the Municipal Act, 2001 does not give the Board the power to redivide the existing wards or to change the composition of City Council. Such power resides exclusively in City Council.
(f) The Board may deal only with the boundaries of wards and may not change the number of wards nor the number of councillors.
(g) In particular, the Board has no power to determine the number of councillors to be elected from each ward, which is fixed at two from each ward by virtue of s. 458 of the Municipal Act, 2001.
(h) There is no question that whether or not the Board has this power is a point of law of sufficient importance to merit the attention of the Divisional Court.
(i) Moreover, this is a matter of first instance. There is no decision of the court that speaks to the issue. In all the circumstances, there is good reason to doubt the correctness of the Board’s decision.
(j) Leave to appeal to the Divisional Court should be granted.
[14] I am unable to accept the arguments advanced by the City. It is true that the City has the power under s. 217 of the Municipal Act, 2001 “to change the composition of its council” and pursuant to s. 222 “despite any Act” to “divide or redivide the municipality into wards or dissolve the existing wards” subject to certain rules and requirements that are set forth in the sections. However, the exercise of that power is subject to review. Section 222(4) provides for an appeal to the Board by “the Minister or any other person or agency” who objects to a by-law passed by a municipality to “divide or redivide the municipality into wards or dissolve the existing wards.” I note that there is no similar provision contained in s. 217 regarding a municipality’s decision regarding the composition of its council. Nonetheless, as I shall illustrate shortly, it is my opinion that the municipality’s power to change the composition of its council is not absolute in all circumstances.
[15] By enacting s. 223 of the Municipal Act, 2001, the Legislature instituted a procedure whereby electors might present a petition to City Council to ask it “to pass a by-law dividing or redividing the municipality into wards or dissolving the existing wards.”
[16] A definition of “elector” and the requirements of the petition are set forth in subsections of s. 223. Importantly, s. 223(4) provides:
If the council does not pass a by-law in accordance with the petition within 30 days after receiving the petition, any of the electors who signed the petition may apply to the Ontario Municipal Board to have the municipality divided or redivided into wards or to have the existing wards dissolved.
[17] That is exactly what happened in this case. Section 223(5) then comes into play:
The Board shall hear the application and may, despite any Act, make an order dividing or redividing the municipality into wards or dissolving the existing wards and subsection 222(6) applies with necessary modifications in respect to the hearing.” [Emphasis added.]
[18] As seen by looking at s. 222(1), this subsection does not give the Board the exclusive power to redivide the municipality into wards. However, where the municipality fails, as is the case here, to pass a by-law in accordance with a petition within 30 days after receiving it and some of the electors who signed the petition have applied to the Board to have the Board redivide the wards, the Board has the power to do so “despite any Act,” which would of course include the former London Middlesex Act, 1992, Ontario Regulation 561/93, and sections 217, 222, 458 and 459 of the Municipal Act, 2001.
[19] I see no irreconcilable conflict between the powers that City Council may exercise under s. 222(1) and those that the Board may exercise under s. 223(5). City Council is free to act at first instance under s. 222, but even then its decision is subject to an appeal to the Board under s. 222(4). However, if it does not act at first instance, then the petition process under s. 223 is available, in which case the Board is given the statutory right to exercise the power that City Council did not exercise. Moreover, s. 223(8) provides:
Once an order of the Board is in force, the order shall be deemed to be a by-law of the municipality and may be amended or repealed by the municipality under section 222.
Presumably, the provisions of s. 222(4) would then become applicable, in which case theoretically the matter could end up again before the Board on appeal.
[20] The City also submits that the Board may deal only with the boundaries of wards and may not change the number of wards. In answer to this position, I apply the plain and ordinary meaning of the word “divide,” which is “to separate or be separated into parts; break up; split; mark out into parts.” [^5] To “redivide” the municipality into wards must then mean that existing wards may be separated, broken up, split or marked out into additional parts, which is what the Board did by creating 14 wards.
[21] Moreover, the Board has the power under s. 223(5) to go even further and “dissolve the existing wards.” The exercise of this power in certain circumstances might result in a decision that dissolves the existing wards and requires the election of councillors at large. That is a much more drastic result than the Board achieved in this case.
[22] Neither do I see any irreconcilable conflict between s. 458 and s. 459 of the Municipal Act, 2001 on the one hand and s. 223(5). Sections 458 and 459 read as follows:
On January 1, 2003, the composition of the council of a municipality, the method of electing or appointing its members, the number of votes given to each member and the titles of its members shall be the same as they were on December 31, 2002.
On January 1, 2003, the wards of a municipality and a local board are the same as they were on December 31, 2002.
[23] In my opinion, neither s. 458 nor s. 459 of the Municipal Act, 2001 does anything more than codify the status quo as of the specified date. Neither section in any way restricts the power of the municipality “to change the composition of its council” under s. 217 or “to divide or redivide the municipality into wards or dissolve the existing wards” under s. 222, “despite any Act,” nor the power of the Board “to redivide the municipality into wards” under s. 223, “despite any Act.”
[24] In my opinion, there is no doubt that s. 223(5) of the Municipal Act, 2001 gives the Board the power to order what it did in this case and I have no doubt about the correctness of its order in law.
[25] As I have noted above, the Board did not order the number of councillors who should be elected from each ward, as the City alleges. On the other hand, it is clear from Mr. Gates’s reasons issued on November 22, 2005 that he favoured 14 wards with one councillor elected to represent each ward. However, he did not incorporate that preference in his order. The City argues that only its council has the right to determine its composition pursuant to s. 217, that the Board has no power to fix the number of councillors in each ward, and that it cannot do indirectly by its order what it cannot do directly.
[26] I turn now to consider some alternative ways to approach and resolve this issue, none of which causes me to doubt the correctness of the Board’s decision. Firstly, it is my opinion that the preference expressed by Mr. Gates about the number of councillors to be elected for each ward is not binding on City Council. It can be argued that City Council is still free to determine its composition pursuant to s. 217 of the Municipal Act, 2001 within the structure of the 14 wards mandated by the Board. From a practical point of view and bearing in mind the salaries of members of City Council and the fact that a greatly enlarged City Council may prove unwieldy, it may indeed be appropriate to decide upon one councillor per ward.
[27] However, the Board did not order that any particular number of councillors should be elected for each ward and that decision remains within the power of City Council to make pursuant to s. 217 of the Municipal Act, 2001. Therefore, it can be argued that even if it were within the power of the Board to fix the number of councillors to be elected for each ward, the Board did not exercise that power nor did it usurp City Council’s ability to make that decision in this case. It follows that when City Council retains the power to decide the number of councillors who will be elected for each ward in such a way as to preserve the current composition or “make up” of the existing council it cannot be said that the Board has done indirectly what it lacks the power to do directly.
[28] In the alternative, I noted above that the municipality’s power to change the composition of its council is not absolute in all circumstances and I want to give further consideration to the City’s submission that the order of the Board changes the composition of City Council. In my opinion, it may be argued that the composition or make up of City Council remains the same in the sense that the total number of councillors has not been changed. The number of existing councillors matches the number of new wards created by the Board. The number of existing councillors remains at 14, unless City Council decides to exercise its power under s. 217 to change its composition. What has changed is not the composition of counsel but the number of wards which councillors will be elected to represent.
[29] Further in the alternative, I go on to consider whether or not the Board also has the power to alter the composition of City Council and if so, in what circumstances. There is no appeal provided for in s. 217 from the decision of a local municipality regarding its decision to change the composition of its council. However, I reiterate that s. 223 provides for a very specific situation; one where a petition to divide, redivide or dissolve the existing wards in a municipality has been presented to City Council and City Council has failed to pass a by-law in accordance with the petition.
[30] It is entirely feasible that a decision by the Board speaking only to the redivision of wards might result in an order, made legitimately and on proper grounds, that incidentally changes the number of wards so that they either exceed or fall short of the number of existing councillors. For example, in this case if the Board had ordered 20 wards when there are only 14 councillors, if each ward were to be represented by its own exclusive counsellor, a minimum of 20 councillors would have to be elected. This would indeed change the composition or makeup of City Council. Yet the Board clearly has the power, “despite any Act,” to divide, redivide or dissolve the existing wards.
[31] It follows logically then that the intention of the Legislature must have been that the Board, when acting under s. 223(5), has the power, incidental to its power to divide, redivide or dissolve the existing wards, to thereby change the composition of City Council, even if the ultimate decision about that composition may be left by the Board to the City Council to exercise pursuant to s. 217. In effect, it may be argued that the Board can “do indirectly what it cannot do directly” if in exercising its power properly to redivide wards in a municipality it incidentally affects the composition of a council.
[32] Support for this position and the intention of the Legislature is found in s. 37 (a) of the Ontario Municipal Board Act, R.S.O. 1990, c. O. 28, which reads:
The Board has jurisdiction and power,
(a) to hear and determine all applications made, proceedings instituted and matters brought before it under this Act or any other general or special Act and for such purposes to make such orders, rules and regulations, give such directions, issue such certificates and otherwise do and perform all such acts, matters, deeds and things, as may be necessary or incidental to the exercise of the powers conferred upon the Board under such Act. [Emphasis added.]
[33] It seems that Mr. Gates recognized this principle in the memorandum of oral decision and order he delivered on September 21, 2005. Mr. Trosow, a professor at the University of Western Ontario then appearing before the Board on behalf of the respondents, had asked that the Board not determine the issue of the number of councillors per ward before it heard the evidence in the main hearing. The memorandum reads in part:
Respecting the issue of the number of councillors per ward, the Ontario Municipal Board will accede to his request. A decision on ward boundaries may effectively determine this issue without the Ontario Municipal Board having to make a decision as to the issue; i.e., it may be a practical outcome.
[34] Moreover, if the order of the Board can be said to have interfered with City Council’s power to determine its composition under s. 217, such intrusion is minimal. It has left it open to City Council to provide for one councillor to be elected for each ward, leaving the total number of councillors as it is now and thereby preserving the present composition of City Council.
[35] With respect to issue 17, I emphasize that the Board did not order a reduction in the number of councillors from two per ward to one per ward. It ordered the establishment of 14 wards but it made no order about the number of councillors per ward. As noted above, my opinion is that it is open to City Council to pass a by-law pursuant to s. 217 fixing the number of councillors to be elected from each ward. It is an issue that is within the power of City Council to address pursuant to s. 217.
[36] My function on this motion is to decide whether the City has met the test enunciated in paragraph [5], above. I am satisfied that the issues of law in questions 16 and 17 are certainly of importance and concern to City Council and to the electors of the City of London but may also materially affect municipal government across the Province and would merit consideration by the Divisional Court. However, the test is two-pronged and the real issue regarding these two questions is whether or not there is good reason to doubt the correctness of the Board’s decision. The mere fact that this is a matter of first impression, by itself, does not constitute good reason to doubt the correctness of the Board’s decision. Also, there is no requirement that there be conflicting decisions on a point of law.
[37] My analysis of the relevant legislation and of the Board’s order as set out above leads me to conclude unhesitatingly that the Board did not exceed its jurisdiction and that it had the power to make the order it did. I find no reason to doubt the correctness of its order in this case. Leave to appeal issues 16 and 17 is denied.
[38] The next issue is number 20:
- Can the Board be said to have exercised its jurisdiction when its proposed redivision of wards was expressed in a map which did not clearly delineate ward boundaries in a manner which could be implemented by the Clerk?
[39] The brief answer to this question is that the sufficiency of the map regarding the new ward boundaries involves a question of fact and not one of law alone. Further, in my opinion this issue is not of sufficient importance to merit the attention of the Divisional Court.
[40] In this regard, I have read the affidavit of Brent Stein, Manager of Licensing and Elections for the City and the affidavit of Stephen Turner, one of the respondents. I accept Mr. Turner’s affidavit, which puts in perspective the concerns raised by Mr. Stein, and agree with him that the complaints the City raises regarding the lack of clarity about ward boundaries are trivial. Moreover, there appears to be sufficient clarity about ward boundaries that the City has been able to post on its website a “City Ward Map” showing the boundaries of 14 wards.
[41] Further, as paragraph 10 of Mr. Turner’s affidavit states, after releasing his reasons of November 22, 2005, Mr. Gates invited the City and the respondents to meet to work out the details and produce a ward map, thus giving both sides some input into the final boundaries. This meeting did not take place. The preamble to the Board’s order of December 30, 2005 confirms these facts and notes that it “heard the submissions of both parties that the City was unwilling to enter into discussions with the Applicants respecting a final ward boundary map.” The following finding is particularly instructive:
AND THE BOARD finds that it will not adjourn these proceedings or stay its order as this would undermine the whole or main purpose of the application, which was to effect change in the ward structure for the City of London for the 2006 election and thereafter. The City had a month to obtain a stay from the courts but has failed to obtain it.
[42] Therefore, if there is any lack of clarity it ill behooves the City to complain. For these reasons, I find that this is not an issue that meets the test for leave to appeal.
[43] The next issue raised by the City is number 22:
- Whatever the Court’s disposition of this appeal, can the Board’s decision be implemented in respect of the regular municipal election of 2006, or must it take effect only, if at all, in respect of the regular municipal election of 2009?
[44] This is a question that assumes leave to appeal has been granted and the Divisional Court is dealing with the issue. It is not an issue that independently calls into question the correctness of the Board’s order. It arises separate and apart from the Board’s order and is really a question about its implementation. Accordingly, it is not a proper question for me to consider on this motion.
[45] The last two issues are numbers 1 and 2:
Did the Board err in failing to apply the appropriate burden of proof, namely, whether reasonable persons applying the appropriate principles could not have set the electoral boundaries as they exist?
Alternatively, did the Board err in failing to find that the Respondents were subject to a burden of proof requiring them to demonstrate, on a balance of probabilities, that their proposal would be more fair and provide more effective representation to the electors than the existing ward boundaries?
[46] In effect, as Mr. Rust-D’Eye submits in oral argument, the City is complaining that Mr. Gates “gave no balance to the evidence against the petition,” i.e., that he failed to give sufficient weight to evidence the City led or gave unwarranted weight to the evidence led by the respondents. The City emphasizes that City Council has undertaken many separate reviews of the structure of City Council over several years and decided each time not to change it. It submits that the Board ought then to have given deference to its decision not to alter the composition of City Council and the ward structure. The City adds that the petitioners comprise only .001 per cent of the population of the City of London. The implication is that such a drastic change ought not to be allowed to occur as a result of the actions of such a small number of people.
[47] I conclude that s. 223 was enacted precisely to permit a relatively small number of electors, as specified in s. 223(2), to petition a council to consider redividing the wards in a municipality and upon rejection of the petition to have Council’s decision reviewed by the Board de novo. Here, the petition met the requirements of s. 223(2) of the Municipal Act, 2001 and therefore was valid.
[48] In my opinion, there was evidence before Mr. Gates to support the findings he made. It was within his discretion to weigh the evidence and to give to it the weight he concluded it deserved. I find no grounds for this court to interfere with the exercise of his discretion on the basis that he failed to consider the evidence properly, that he misconstrued the evidence, or that there was no evidence to support the findings he reached in making the order he did.
[49] Similarly, after he considered all the evidence, it was for him to decide whether the petitioners had met their burden of proof. At page 18 of his reasons, he deals with this issue directly:
On the issue of deference, the City believes that it should be shown deference and that there is a high burden on the applicants to show a pressing need for change. The applicants’ alternative position was that if this was the case, then they had met this burden.
The Board finds that the applicants have met this burden. Board finds there is a pressing need for change, which has been amply demonstrated by the evidence referred to above. The Board is convinced that the existing Ward structure has undermined the City Council’s ability to connect with its citizens. Evidence supporting this conclusion came from the applicants’ witnesses, the City’s witnesses and the public.
[50] In his reasons, Mr. Gates carefully summarized and reviewed the evidence before the Board, including at page 12 the five tests that Mr. Sancton, another professor from the University of Western Ontario who testified on behalf of the City and was qualified to give opinion evidence, suggested the Board should regard. Moreover, at page 6 of his reasons Mr. Gates refers to Attachment 1, an extensive list of the criteria and guiding principles for establishing Ward boundaries that was appended as schedule D to a report that was considered by the Mayor and members of City Council on April 18, 2005. There is no doubt in my mind that Mr. Gates was well aware of the criteria to be applied and the burden of proof that rested upon the applicants, which he found they had met.
[51] For these reasons, I find that none of the issues raised by the City meets the test for leave to appeal.
[52] Accordingly, leave to appeal to the Divisional Court is denied and the motion is dismissed.
[53] Counsel may address the issue of costs either in writing within 30 days or before me on a date to be fixed by the trial coordinator. If counsel are unable to agree about the method of addressing the issue, the former shall prevail.
“Mr. Justice D.R. McDermid”
Mr. Justice D. R. McDermid
DATE: February 28, 2006
[^1]: Section 96(1) of the Municipal Act R.S.O. 1990 Chapter O.28 [^2]: Toronto (City) v. Torgan Developments [1990] O.J. No. 55 (H.C.J.) [^3]: Canadian Egg Marketing Agency v. Sunnylea Foods Ltd. (1997), 3 C.P.C. 348 (Ont.H.C.) [^4]: Ash v. Lloyd’s Corporation. (1992), O.R. (3d) 282 (Gen. Div.) [^5]: Canadian Oxford Dictionary, Oxford Press, 1998.