Court File and Parties
DIVISIONAL COURT FILE NO.: 478/11
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Beverly Ross, Lloyd G. Ryder, John R. Arnold, Jeffrey Posluns, Helen Sklarz, Lynn Levine, Beverley Bailey, John P. Conway, Reena Sheres, Samuel Alter and Jordan Talsky, Applicants
AND
City of Toronto and Brenda Patterson and Jim Hart, in their capacities as General Managers, Parks, Forestry & Recreation, Respondents
BEFORE: Pardu, Swinton and Sloan JJ.
COUNSEL: Fred Myers, for the Applicants
Andrew M. Stikuts and Kirsten Franz, for the City of Toronto
HEARD at Toronto: October 4, 2012
ENDORSEMENT
Background
1The Applicants bring this application to quash the August 23, 2011 decision of Jim Hart, General Manager of Parks, Forestry and Recreation of the City of Toronto which maintained an earlier decision by the previous General Manager, Brenda Patterson, to close an off leash area for dogs in Ledbury Park.
2The City of Toronto has adopted a People, Dogs and Parks-Off-Leash Policy. The version in force at the time of the decision under review recognized the "social benefits of dogs and their owners having access to and being accommodated within the parks system." A city by-law requires that dogs must be kept on leash at all times unless a park is posted as an off leash area. A procedure was developed for consideration of new off leash areas, and criteria were established for the consideration of the suitability of an area for off leash use,
Neighbourhood characteristics (adjacent land uses, population density, housing types, licensed dog population, proximity of existing and other potential off-leash areas located within a 15 minute walk or 1 kilometre)
Compatibility with the park's design, established uses, features and components
Potential impacts on the park's functionality, condition and natural environment
Proportion of park to be taken up by the proposed off-leash area
Proximity to residences and off-leash area exclusions
3The policy also provided for cancellation of off leash areas,
Designation of an off-leash area may be cancelled by the General Manager of Parks, Forestry & Recreation where in the opinion of the General Manager:
the off-leash area is not being used on a regular basis
extensive damage to the park and/or natural environment is occurring
the park is no longer suitable for an off-leash area
conflicts between park users cannot be resolved
repeated, ongoing non-compliance with the Code of Conduct for off-leash area use posted at each off-leash area and the City of Toronto Municipal Code Chapters.
4The decision challenged was incorporated in a letter sent to the representative of the Ledbury Dog Owners' Association,
This letter is with regards to the appeal submission from the Ledbury Dog Owners' Association of which you advise you are the representative.
In January of 2010, Toronto City Council approved amendments to the People, Dogs and Parks – Off-Leash Policy (the "Policy"). This Policy recognizes the social benefits of dogs and their owners having access to and being accommodated within the parks system through the provision of off-leash areas. It also provides for consideration to be given to balancing the needs and interests of the community, impact on the environment and sustainability of the off-leash area when identifying appropriate locations. Part of the location criteria noted in the Policy provides for consideration of the proximity of residences to an off-leash area.
Council has delegated the authority to administer the Policy to the General Manager of Parks, Forestry and Recreation. Council also delegated to the General Manager the authority to cancel an off-leash area designation where, in the opinion of the General Manager, the park is no longer suitable for an off-leash area, conflicts between park users cannot be resolved, or there is repeated, ongoing non-compliance with the Code of Conduct for off-leash areas' use posted at each off-leash area and the Toronto Municipal Code chapters.
In the case of Ledbury Park, the off-leash area shares a common fence line with residential homes on Melrose Avenue, Marmion Avenue and the Toronto District School Board. The proximity of residences to the off-leash area is in contravention of the Policy criteria, resulting in conflict created between park users and the adjacent residences.
My review of the information before me leads me to conclude that Ledbury Park is not suitable for an off-leash area due to ongoing and unresolved conflicts between park users, and between off-leash area users and area residents. The successful operation of a park is a balancing act of various interests and unfortunately, we cannot accommodate the interests of the Ledbury Dog Owner's Association at Ledbury Park. I have exercised my discretion to close the Ledbury Park off-leash area and remove the off-leash designation. The additional information you included in your appeal submission does not, in my view, provide any grounds to change my decision.
5The Applicants submit that Hart erred in taking into consideration the complaints of homeowners living adjacent to the park, the character of the neighbourhood, and in balancing the interests of those in favour of and those opposed to the leash free zone. The Applicants submit that once a leash free zone has been approved, only factors internal to the park itself and actual physical use of the park can be considered in assessing whether to close a leash free zone. This is not a reasonable interpretation of the policy. In referring to the possible closure of a leash free zone where "the park is no longer suitable for an off leash area" the policy implicitly makes reference to the factors referred to earlier in the policy dealing with the initial suitability of an area for that use. Many of these factors may change over time, such as neighbourhood characteristics, adjacent land uses, population density, proximity of other off leash areas, impacts on the park's functionality, condition and natural environment, proximity to residences, and compatibility with established uses, features and components. It is not reasonable to say that creation of a leash free zone creates entrenched rights which bar forever balancing of interests of all others save those who have been physically present in the park. Experience will sometimes shed light on whether an area is suitable for an off leash area, and a decision maker should reasonably be able to balance the interests of multiple constituencies when deciding whether to close a leash free area.
Standard of Review
6The Applicants submit that the standard of review is correctness. They submit that Hart erred in the manner in which he interpreted the city policy on closing off leash areas, and that in any event the decision was unreasonable. They also submit that they were not accorded procedural fairness, and that the decision should also be overturned on that basis.
Analysis
7Determination of appropriate use of part of a neighbourhood park requires assessment of divergent interests in light of the City's Policy on off leash areas in parks. The record here illustrates the intense interest residents of the city have in promoting or opposing leash free areas. The interests affected are not primarily rights as between parties or entitlements, as the Applicants submit, but rather by their nature require balancing of claims of different constituencies. Many diverse factors may affect decisions about the location of off leash zones, including the nature of the neighbourhood, intensity of use, noise, garbage, conflicts within the area or adjacent areas, financial and staff resources, disturbance to other users of parks. As General Manager of Parks, Forestry and Recreation, Hart had the experience and knowledge of the community affected which gave him greater expertise than a court in applying the City's Policy and making these decisions. The standard of review is reasonableness.
Reasonableness of the Decision
8Nor was it unreasonable for Hart to consider neighbouring homeowners to be "park users" for the purpose of evaluation whether there were conflicts between park owners which could not be resolved within the meaning of the policy.
9Accordingly, Hart did not err when he considered the complaints from adjoining homeowners, the proximity of the residences to the leash free zone, and the conflict between park users and homeowners.
10In any event, both his interpretation of the policy and the decision were reasonable. This decision fell well within "a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47). Unresolved conflicts between residents, park users, and users of the leash free zone were a sufficient basis to close the leash free area. Members of the community had vigorously expressed their support for and opposition to the leash free zone.
Procedural Fairness
11The Applicants also complain that Hart did not accord them procedural fairness.
12As noted in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 487 at para. 22,
Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision maker.
13This was a policy decision which considered opposing positions. There was no question of an entrenched right for a dog to be leash free in the park. Resources available to police the park and alleged violations of policy or bylaws, maintenance issues and community views all could potentially bear on this decision. The Applicants had a right to have notice that a decision would be made, be aware of the issues and make their views known. By no means was the City required to hold a judicial hearing and make findings of credibility. It was entirely appropriate for Hart to consult other staff, and review the history of the controversy before making a decision. In fact, the Applicants were told he would be doing so. By letter dated July 5, 2011 they were told "the General Manager will consult with appropriate representatives from other Divisions as deemed necessary." The decision from which the appeal was taken, set out that the area would be closed because of the "many conflicting park use issues" (Letter of June 13, 2011).
14The lengthy written submissions from Conway, on behalf of the Ledbury Park Dog Owners' Association, fully canvassed all of the issues, including issues related to conflict with neighbours and park users. Hart considered these submissions.
15The procedure undertaken by the City was fair, having regard to the context and the issues at stake.
Disposition and Costs
16For these reasons the application for judicial review quashing the decision of Hart is dismissed. Counsel both agreed that the sum of $33,000.00 was a fair amount for partial indemnity costs. There was a motion for disclosure, and cross examinations were conducted.
17The Applicants submit however that they would be crushed if ordered to pay costs and suggest that no costs should be ordered. There is no reason why costs should not follow the result. Having regard to the complexity of the matter, and the time required, and the reasonable expectations of a party litigant who engages in litigation of this nature, costs to the Respondent City fixed at $15,000.00.
Pardu J.
Swinton J.
Sloan J.
Date: November 5, 2012