Court File and Parties

COURT FILE NO.: 166/08

DATE: 20091211

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: The Town of Collingwood v. The Simcoe County District School Board and The Simcoe Muskoka Catholic District School Board

BEFORE: Justice Swinton

COUNSEL: Christopher J. Williams, for the Town of Collingwood (Moving Party)

Brad Teichman, for the Simcoe County District School Board (Responding Party)

Steven O’Melia for the Simcoe Muskoka Catholic District School Board (Responding Party)

HEARD AT TORONTO: December 9, 2009

Endorsement

Swinton J.

[1] The Town of Collingwood (“the Town”) seeks leave to appeal from the decision of the Ontario Municipal Board (“the Board”) dated March 27, 2008, in which the Board dismissed an appeal respecting the Education Development Charge (“EDC”) By-laws of the two respondent school boards enacted in 2003.

[2] An appeal from a decision of the Board lies to this Court with leave, but only on a question of law (Ontario Municipal Board Act, R.S.O. 1990, c. O.28, s. 96(1)).

[3] The Town has not satisfied me that leave should be granted, as there is not good reason to doubt the correctness of the Board’s determination of any matter of law.

[4] Many of the issues raised by the Town on this leave motion involve questions of fact or of mixed fact and law, and, therefore, there is no jurisdiction to grant leave – for example, with respect to the weight to be given to the evidence of witnesses such as Cynthia Clarke or Craig Binning; the relevance of the cross-subsidization issue; and the relevance of “after the fact” evidence. While counsel for the Town suggested that some of these issues raised questions of natural justice, I disagree. In essence, the Town takes issue with the Board’s treatment of the evidence.

[5] I am not satisfied that there is any arguable error of law by the Board. The Town argues that the Board inappropriately fettered its jurisdiction in an appeal under s. 257.67 of the Education Act, R.S.O. 1990, c. E.2, because it focused on the fairness and reasonableness of the process for adopting the by-laws and deferred to the school boards’ policy decisions. Counsel also suggests that the Board did not understand the purpose of an EDC, and this coloured the Board’s decision inappropriately.

[6] The Board followed its longstanding jurisprudence governing its role in an appeal of an EDC by-law, asking if the decision and process of the school board were fair and reasonable and consistent with the school board’s powers. The Board did not focus only on the process by which the school boards made their decisions. It clearly exercised an independent judgment about the soundness of the decision, as required by Cherry Hill G.P. Ltd. v. Lincoln (Town) (2001), 22 M.P.L.R. (3d) 155 (Div. Ct.) at para. 2.

[7] The Board gave detailed reasons why it found a jurisdiction-wide by-law to be preferable to an area-specific by-law for Simcoe County for 2003-2008, concluding at para. 51 (43 M.P.L.R.(4th) 305):

For the above reasons, the Board finds the jurisdiction wide approach herein, to be fair, reasonable and in the public interest. The Board has earlier in this decision found that the boards acted within their powers in a reasonable process (albeit perhaps not perfect).

That decision was based on the evidence heard over a number of days. Moreover, when the reasons are read as a whole, it is evident that the Board understood that the EDC is meant to raise funds for land purchase for new schools.

[8] The Town also argues that the Board erred in law in failing to find that the school boards’ process denied procedural fairness. In particular, the Town alleges that a reasonable apprehension of bias was created because the school boards sent the jurisdiction-wide background study to the Ministry of Education for approval, rather than the area-specific one. Therefore, the Town alleges that the trustee decision to approve the jurisdiction-wide by-law was pre-determined.

[9] The Board was in the best position to determine the merits of these arguments about procedural fairness, which turn on an appreciation of the evidence as well as the application of legal principles concerning procedural fairness and reasonable apprehension of bias. The Board made findings that the required procedures were followed, and it was satisfied that the trustees did not have a closed mind when they held a public meeting on the proposed by-law.

[10] As the Town has failed to identify any arguable error of law in the Board’s decision, the motion for leave to appeal is dismissed. I need not determine whether this appeal would raise issues of sufficient importance to warrant granting leave. Costs of $5,000.00 are payable by the Town to each of the school boards.

Swinton J.

DATE: December , 2009