COURT FILE NO.: 499/07

DATE: 20090330

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: LINLIS DEVELOPMENT INC, KENNEY and STUART, Applicants

- and -

THE CORPORATION OF THE TOWN OF AURORA, Respondent

BEFORE: JUSTICES JENNINGS, JANET WILSON and KARAKATSANIS

COUNSEL: Robert Kennaley for the Applicants Ian J. Lord for the Town of Aurora

HEARD AT TORONTO: March 20, 2009

A M E N D E D E N D O R S E M E N T

THE COURT:

[1] The applicants are home-owners who seek judicial review of the decision of the Town of Aurora (the Town) to refuse their request to erect a fence around their respective lands. The decision to recommend the refusal to grant permission to build the fence was made on motion at the General Committee of the Town on September 18, 2007, and was subsequently ratified by Town Council on September, 25, 2007 and confirmed in By-law 4957-07.C.

[2] The applicants seek an order in the nature of certiorari quashing the decision of the Town, a declaration that the decision was ultra vires, and an order in the nature of mandamus granting the Applicants permission to build their fences.

[3] We conclude that this application for judicial review should be dismissed.

Background Facts

[4] In 1997, the Town divided an 8-acre, open-space property (the Property) owned by it into parcels and conveyed them to 13 abutting landowners, including the former owners of the applicants’ lands. The transfers of the parcels took place in May 1998. Each parcel of the Property was subject to a registered easement in favour of the Town that prohibits, amongst other things, the building of a fence without the permission of the Town.

[5] The applicants are subsequent purchasers, but were aware of the easement at the time of their purchases. The applicants sought permission from the Town to build a fence around their property that was subject to the easement. The other landowners objected to their request.

[6] Town Council initially considered the matter on September 4, 2007. The Council adjourned the matter to seek legal advice, and to seek a report from the Town Public Works Department.

[7] On September 18, 2007, Town Council unanimously voted to refuse the applicants’ request for permission to build a fence after a process that included consideration of representations from the 13 landowners subject to the easement, including the applicants, submissions from the Town’s building department, and legal counsel.

Was the decision of the Town subject to judicial review and if so what is the standard of review?

Was the decision of the Town a statutory power of decision?

[8] The applicants assert that this decision is subject to judicial review as the decision of the Town was ultra vires and hence subject to judicial review. They argue that the decision of the Town to refuse permission to build the fence was not based upon the contractual property rights of the Town as reflected in the terms of the easement, but rather was made for land-use reasons. Therefore they argue that the powers conferred upon the Town by the Municipal Act, 2001, S.O. 2001, c. 25, the Line Fences Act, R.S.O. 1990, c. L.17 and the Planning Act, R.S.O. 1990, c. P.13 were exercised. In particular, the power to require the easements is found in s. 41(7)(a)[8.] of the Planning Act and the power to enact fencing by-laws is found in all three acts. Therefore, the applicants assert, the Town was required to act through a by-law, and its actions must therefore be statutory.

[9] We disagree. We do not accept the argument of the applicants that the decision of the Town was an unauthorized planning decision and hence was ultra vires.

[10] We are of the view that the decision of the Town to refuse to grant permission to build the fences was not a statutory power of decision within the meaning of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 1 (“JRPA”). The Town made a discretionary decision after considering relevant submissions with respect to its contractual property rights as defined by the terms of the easement. There is no right to review the decision of the Town pursuant to the JRPA.

In the alternative, was the decision of the Town reviewable pursuant to the common law?

[11] The applicants argue that in the alternative, the decision of the Town may be subject to judicial review under the common law as the Town in making its decision was a public body, exercising a public function that affected legal rights, and that the Town was therefore subject to the duty of procedural fairness. See: Scheerer v. Waldbillig, (2006), 208 O.A.C. 29 (Div. Ct.); Co-Operative Housing Federation of Canada v. York (Regional Municipality), 2009 7081 (ON SCDC), [2009] O.J. No. 696 (Div. Ct.).

[12] The relevant common law principles are enunciated by the Supreme Court of Canada noted in Martineau v. Matsqui Institution, 1979 184 (SCC), [1980] 1 S.C.R. 602 at 628:

Certiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers.

[13] The scope of the duty of procedural fairness depends on the facts and circumstances of each case: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at para. 21.

[14] The five factors to consider when determining the content of the duty of fairness were most recently set out in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650 at para. 5:

(1) the nature of the decision, (2) the nature of the legislative scheme, (3) the importance of the decision to the individual affected, (4) the legitimate expectations of the person challenging the statute, and (5) the nature of the deference accorded to the body.

[15] If there is a breach of the duty of fairness, there is no applicable standard of review. The issue then becomes what is the appropriate remedy.

[16] Counsel for the Town confirmed that in light of the dispute between the landholders subject to the easement, there should be a public hearing. Counsel also submitted that the actions of the Town in exercising its contractual rights must be informed by section 2 of the Municipal Act, 2001. That section states:

Purposes 2. Municipalities are created by the Province of Ontario to be responsible and accountable governments with respect to matters within their jurisdiction and each municipality is given powers and duties under this Act and many other Acts for the purpose of providing good government with respect to those matters.

[17] In our view, in this case the public nature of the hearing conducted by the Town, informed by section 2 of the Municipal Act, 2001 makes the decision of the Town exercising its property rights reviewable as part of the machinery of government decision making which affects rights and interests and subject to a general duty to act fairly. Therefore, if there is a breach of these duties, the remedies of prohibition and certiorari may be available to the applicants.

Terms of Easement

[18] The applicants suggest that the letter written by the Town solicitor in September 1997 prior to the transfer of the Property is relevant to the inquiry as to the scope and meaning of the easement.

[19] We disagree. The solicitor’s letter predates the transfers and the registration of the easements and was a non-binding proposal to begin discussions with the landowners.

[20] Paragraph 12 of the affidavit dated April 28, 2008 of Robert Panizza, the Clerk of the Town confirms that the original scope of the easement as contemplated in the Solicitor’s letter evolved over time:

On September 8, 1997, the Town held a meeting at which 12 of the 14 abutting property owners expressed an interest in acquiring portions of Block A [the Property] from the Town, if the Town were to purchase Block A. These discussions affirmed the desire of area residents that the Town maintain an easement to protect the vacant, open space character and accessibility of Block A, if conveyed to abutting owners. As a result, considerable changes were made to the Original Easement to accomplish both Town and resident objectives.

[21] It is the terms of the easement, not a letter from the town solicitor that binds the parties.

[22] This application for judicial review turns upon the specific terms of the easement. The easement confirms in very broad terms rights related to any possible municipal service, including storm or other water management.

[23] It also specifically contemplates continued use of the Property as an open space. The following terms of the easement are important:

The Transferor reserves unto itself…an exclusive, unencumbered right, interest and easement in perpetuity, upon, over, on, in under, along, across and through the lands…to construct…a system of services. Without limiting the generality of the rights created herein, such services shall include water mains, sanitary and or stormwater sewers, stormwater drains, water courses and appurtenances thereto.

And for every such purpose, the Transferor…shall have the right of free unimpeded access to the Servient Lands at all times and for all purposes and things necessary for or incidental to the exercise and enjoyment of the rights hereby granted.

The Transferee…covenants that unless given permission in writing in advance by the Transferor, it will not use or permit the use of the Servient Lands, except as a lawn, garden or open space and that it will not permit any buildings, structures, fences, or other obstructions to be situate on the Servient Lands…or permit anything to be done…which may alter, change, injure or damage the Services.

The Transferee…covenants and agrees with the Transferor…that the Transferor…shall and may peaceably hold and enjoy the rights, privileges and easements hereby granted without hindrance, molestation or interruption on the part of the Transferee.

(emphasis added)

[24] The applicants characterize the easement as being limited to an easement for storm water management as contemplated by section 47(7) of the Planning Act. That section allows a municipality to require the granting of an easement for the “construction, maintenance or improvement of watercourses, ditches, land drainage works, sanitary sewage facilities and other public utilities” as a condition of approval of plans.

[25] The Town asserts that the terms of the easement are not comparable to an easement granted pursuant to section 47 of the Planning Act. The terms of the easement in this case are clear, and far more broad than an easement granted for storm water management purposes pursuant to the Planning Act.

[26] Having regard to the plain language in the easement, we agree with the submissions of the Town.

Did the Town improperly and unfairly consider irrelevant collateral issues in reaching their decision?

[27] The applicants allege unfairness as the Town turned the contractual issue between the Town and the applicants for permission to build a fence into a political and planning matter, and unfairly considered irrelevant collateral issues, including the submissions of the other landowners subject to the easements.

[28] We disagree. Given the clear terms and the broad scope of the terms of the easement, it was open to the Town to consider the concerns of all 13 landowners affected by the easement.

[29] Notwithstanding the able and forceful argument of Mr. Kennaly, we conclude that the Town did not improperly consider extraneous irrelevant collateral factors outside the scope of the easement. The easement is a wide-ranging easement covering all aspects connected with “a system of services”. The easement also includes terms related to use of land and the right for unimpeded access by the municipality.

[30] The cases relied upon by the applicant (Multi-Malls Inc. et al. and Minister of Transportation and Communications et al., (1977), 1976 623 (ON CA), 14 O.R. (2d) 49; Ottawa (City) v. Boyd Builders Ltd., 1965 1 (SCC), [1965] S.C.R. 408; Village Shopping Plaza (Waterdown) Ltd. et al. v. Regional Municipality of Hamilton-Wentworth et al. (1982), 1981 1612 (ON SC), 34 O.R. (2d) 311; Namusa Enterprises Ltd. and City of Etobicoke et al. (1984), 1984 2074 (ON SC), 47 O.R. (2d) 769) are clearly distinguishable and have no useful application to the facts of this case, because they relate to the exercise of various statutory or public powers, which are limited by the purpose of object of the grant of power.

[31] The record is clear that the Town appropriately considered relevant submissions in coming to its decision including the report from the Town building department, the legal department and the submissions of all the landowners that were subject to the easement.

Were the applicants treated unfairly?

[32] We do not accept the applicants’ argument that they were treated unfairly.

[33] It was the Town’s decision to allow public submissions on a decision arising out of a contractual right. In doing so, it provided a fair process. The applicants had a full opportunity to both make submissions, and to respond to other submissions made. The applicants’ submissions were considered by the Town in reaching its decision.

[34] The applicants had made it clear that there may be litigation if their request to build a fence was not accommodated. The Town received advice from its solicitor in camera, that was subject to solicitor-client privilege. This did not create unfairness, and was reasonable in the circumstances.

[35] The applicants point to an email from Councillor Buck dated September 7, 2005, which they allege provides evidence that the Town took extraneous factors into account, or had pre-determined the issue. The email does not show Councillor Buck to be incapable of persuasion. It certainly does not show the Town vote was pre-determined. Further, the applicants attended the General Committee meeting on September 18, 2005 after the email was sent but chose not to make oral submissions on this, or any other issue.

[36] Contary to the position of the applicants, there was no unfairness to the applicants in the submissions considered by the Town in reaching their decision as outlined above.

[37] There was no obligation of the Town to provide reasons for their discretionary decision, and no unfairness to the applicants in the failure to provide reasons for the decision. The Town was exercising a power granted to it as a contractual right, not under statute. That it chose to seek input from other residents does not impose upon it a requirement for full reasons.

[38] The brief statement by Councillor MacEachern was more of an attempt to talk to the residents than reasons for decision, given as they were, just prior to the General Committee vote. She confirmed the intent of the Property as open space. She confirmed the potential need in the future to have access to the Property. She also confirmed that this was a difficult and uncomfortable issue, as two sets of residents had strongly held views on the matter. There was no unfairness to the applicants in the process. Their views were considered, and they were treated with respect. Councillor MacEachern states “And I apologize to the residents that want the fencing…I feel for you”.

[39] The discretionary decision of the Town to refuse the applicants’ request to build fences was reasonable and amply supported by the record. There was no procedural or institutional unfairness to the applicants.

[40] For these reasons the application for judicial review is dismissed.

Costs

[41] Counsel for the Town argued that as there were allegations of unfairness that were unfounded that an award for substantial indemnity costs was justified. We disagree with this submission. The applicants acknowledged that they had an opportunity to be heard. They argued that the unfairness was in considering irrelevant collateral evidence. There are no grounds to award substantial indemnity costs.

[42] The parties have agreed that an appropriate sum of partial indemnity costs would be $24,000. While it is always helpful to have parties agree on costs, it is the court’s responsibility to fix them in an amount consistent with the principles of Rule 57. In our opinion, having regard to the factors in that rule and the cost awards in this court for similar matters we reject the suggestion put to us and fix costs at $15,000 inclusive.

JENNINGS J.

JANET WILSON J.

KARAKATSANIS J.

DATE: March 30, 2009