DIVISIONAL COURT FILE NO.: 555/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
DOUBLESWEET INVESTMENTS LIMITED
Appellant
(Plaintiff)
– and –
CITY OF TORONTO
Respondent
(Defendant)
Alan Sugerman, for the Appellant/Plaintiff
Andrea Denovan, for the Respondent/ Defendant
HEARD at Toronto: October 18, 2012
LEDERER J. (ORALLY)
Background
1This is an appeal from Deputy Judge Mungovan of the Small Claims Court. The disposal of waste produced by the residents of the City of Toronto has been an issue for the municipal Council for many years. Following some years of study, the City amended the Toronto Municipal Code to put in place a program directed, in part, to reducing the volume of waste being collected for disposal.
2The appellant owns a residential building. It has more than nine units. It has a garbage compactor. Pursuant to the bylaw which put the program in place, it is required to compact the waste it produces. It failed to comply with this obligation. Rather, some of the waste it placed for pick up was compacted and some was not. The City charged the appellant for the pick up and disposal of all the waste as if it was all compacted. Because some of the waste had not been compacted the volume was more than it otherwise would have been and the applicant was charged more than it otherwise would have had to pay.
Analysis
3It is the view of the appellant that the General Manager was without jurisdiction to impose a higher charge. The core of the submission of the appellant is that the General Manager, in imposing the higher charge was acting outside his authority and carrying out a legislative and not an administrative function.
4Pursuant to Chapter 844 of the Toronto Municipal Code, ss. 27(i), the General Manager has the authority to “Establish such other things as are necessary for the proper administration of this chapter” [Emphasis added]. This is demonstrative of a proper delegation to the General Manager that allowed him to impose the charge he did. I agree with the Small Claims Court Judge who found that:
It is clear that in these circumstances the General Manager could not legally charge the rate for uncompacted garbage, when the garbage should be compacted because of the statutory mandate. That would be condoning the violation. He could prosecute it but I think that, as a matter of construction of this particular power, charging the compacted garbage rate in respect of uncompacted garbage was doing a ‘thing’ that was ‘necessary for the proper administration of the program created for solid waste management for the City of Toronto’.
(Reasons of M. O. Mungovan D.J., Double Sweet Investments Limited v. City of Toronto, Toronto Small Claims Court SC-10-00 105836-0000, at para. 13)
5The appellant suggests that it was not a “thing” that was “necessary” because there were at least four other provisions in the bylaw which provided sanctions for the failure of compliance with its terms. It seems to me this misses the point. It was “necessary” because to do otherwise would credit the appellant by lowering the fee in circumstances where it failed to compact all of its waste. A proper delegation should not lead to an absurdity (see: Peralta et al. and The Queen in right of Ontario et al. 1985 3125 (ON CA), [1985] O.J. No. 2304 (Ont. C.A.) upheld by Peralta v. Ontario, 1988 28 (SCC), [1988] S.C.J. No. 92 (S.C.C.)). It would be absurd if the appellant was advantaged by its failure to comply with the bylaw.
Legislative vs. Administrative Function
6The appellant believes that the General Manager in imposing the charge was legislating rather than carrying out an administrative function. It is trite to observe that, in the normal course, the General Manager, as an employee of the City rather than an elected official does not have the authority to legislate. The City of Toronto Act, 2006, section 21(4) states that:
… [n]o delegation of a legislative power shall be made to an individual described in clause (1)(c) unless, in the opinion of city Council, the power being delegated is of a minor nature …. .
7The preconditions that allow for the General Manager to legislate matters of “a minor nature” are not present here. The question remains, was the General Manager carrying out an administrative function when he imposed the charge? The words “administration or administrative…are fully broad enough to encompass all conduct engaged by a governmental authority in furtherance of governmental policy business or otherwise.” (see: British Columbia Development Corp. v. British Columbia (Ombudsman) 1984 121 (SCC), [1984] S.C.J. 50 at p. 16 which also quotes S.A. de Smith, Judicial Review of Administrative Action (4th ed. 1980) at pp. 68-71 and Halsburys Laws of England (4th ed.), vol. 1, para. 4)). In the context of this case the General Manager was acting in furtherance of the policy directed by Chapter 844 of the Toronto Municipal Code.
8As it is, again, I agree with the Small Claims Court judge that when the General Manager imposed the charge he was properly carrying out an administrative function:
To conclude, the General Manager is simply ‘administering the law’ contained in section 844-21 of Chapter 844 of the Toronto Municipal Code by requiring the plaintiff to pay fees for compacted waste even though some of those fees relate to uncompacted waste. However, the Toronto Municipal Code obligated Doublesweet to compact all of its garbage, not just a portion of it. In addition, the General Manager was administering the City's, that is, the government's, policy when treating uncompacted waste as though it were compacted waste. If it had a compactor under the law it must use it for all its garbage.
(Reasons of M. O. Mungovan D.J., Double Sweet Investments Limited v. City of Toronto, supra, at para. 21)
Disposition
9The parties agree that an error was made when costs were awarded by the Small Claims Court judge. They were not restricted to 15% of what was being claimed. Accordingly, the decision of the Small Claims Court is amended so that the costs awarded for the trial are $3,438.75.
10In every other respect, the appeal is dismissed.
COSTS
Costs
11No costs.
LEDERER J.
Date of Reasons for Judgment: October 18, 2012
Date of Release: December 12, 2012
CITATION: Doublesweet Investments Limited v. City of Toronto, 2012 ONSC 6377
DIVISIONAL COURT FILE NO.: 555/11
DATE: 20121018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER J.
BETWEEN:
DOUBLESWEET INVESTMENTS LIMITED
Appellant
(Plaintiff)
– and –
CITY OF TORONTO
Respondent
(Defendant)
ORAL REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: October 18, 2012
Date of Release: December 12, 2012