Court File and Parties

CITATION: Timothy Patrick Danbrook v. The Corporation of the Town of Georgina, 2014 ONSC 3746

COURT FILE NO.: DC–13–590–00JR

DATE: 20140708

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT AT OSHAWA

Czutrin S.J.F., Kiteley and Whitaker JJ.

BETWEEN:

Timothy Patrick Danbrook Applicant

– and –

The Corporation of the Town of Georgina Respondent

COUNSEL: Colin A. Brown, for the Applicant Charles M. Loopstra, Q.C. and Daron L. Earthy, for the Respondent

HEARD: March 7, 2014

CORRECTED DECISION

Kiteley J.

[1] Two applications were before the Court on March 7, 2014. In action DC–12–508– 00ML the Applicant brought a motion pursuant to s. 21(5) of the Courts of Justice Act to set aside the order made by Mullins J. dated October 25, 2013 in which she refused to grant leave to appeal a decision of the Ontario Municipal Board dated August 3, 2012. The Respondent brought a motion to dismiss that motion to set aside on account of the failure of the Applicant to pay costs ordered by Mullins J. That motion prompted a motion on behalf of the Applicant for an order seeking a stay of the order as to costs. Counsel for the Applicant agreed not to proceed with that motion and in an endorsement dated March 7, 2014, the Court indicated that the motion to set aside the order will not be heard before costs are paid and, at that time, it will be heard by this panel. If the Applicant is successful on the Judicial Review Application, he will not pursue the motion to set aside the order.

[2] In action DC–13–590–00JR, the Applicant seeks judicial review of the decision by the Town dated July 18, 2011 in which it passed a development charges by-law. The Respondent brought a motion to dismiss that Application as abuse of process. The panel did not hear that motion to dismiss as a separate motion but counsel incorporated that request into their submissions on the merits of the judicial review application.

Background

[3] The Town first enacted a development charges by-law in 1991 and has had a number of development charges by-laws since that time, each of which had contained an exemption from development charges for single “existing lots of record”, being single vacant building lots in the Town for which a severance had already been granted. The Applicant challenges the by-law passed by Council on July 18, 2011 because it did not continue the exemption.

A. Meeting of Council June 20, 2011

[4] The Town’s 2004 development charges by-law expired in 2009. According to the affidavit of Rebecca Mathewson, Director of Administrative Services and Treasurer of the Town, many municipalities had included a similar exemption when the Development Charges Act[^1] (the “Act”) first came into force for the purpose of providing a phase-in period to land owners. However, she said that many municipalities were removing the exemption from their updated development charges by-laws.

[5] In 2010, the Town retained Hemson Consulting Ltd. to complete a development charges background study pursuant to s. 10 of the Act for the purpose of enacting a new by-law. The draft background study was made available to the public on June 3, 2011 on the Town’s website and upon request at the Town’s Civic Centre. Mathewson said that the Town originally scheduled a statutory public meeting to consider the background study and proposed by-law for May 24, 2011 with an anticipated date of enactment of the by-law on June 13, 2011. The date of the public meeting was changed to June 20, 2011 with the enactment date anticipated to be June 27.

[6] A key issue in this Application is the notice that the Town gave for this meeting. Mathewson said that notice of the public meeting scheduled for June 20, 2011 was published in the Georgina Advocate on May 19, May 26, June 2, June 9 and June 16, 2011. Notice of the public meeting was also published in the Pefferlaw Post on June 10, 2011. Each published notice included the date of the statutory public meeting, the anticipated date of enactment and the fact that the background study and proposed by-law were available on the Town’s website and at the Civic Centre:

NOTICE OF PUBLIC MEETING TOWN OF GEORGINA DEVELOPMENT CHARGES

**NEW DATES**

Take notice that on Monday, June 20, 2011 the Council of the Town of Georgina will hold a public meeting pursuant to The Development Charges Act, 1997, regarding proposed development charge rates and policies that will be applied throughout the Town. It is proposed that enactment of a development charges by-law by Council would occur on Monday, June 27, 2011.

Development Charges are levied against new development, and are a primary source of funding for development-related capital expenditures. Town-wide capital services include library, recreation and parks, public works, general government, and roads and related services. Area Specific capital services include roads and related services, water and sewer services.

Council is required under The Development Charges Act, 1997, to hold at least one public meeting to allow the public the opportunity to review and provide comments on the 2011 Development Charges Study, related staff reports and the proposed development charges by-law.

All interested parties are invited to attend the public meeting on:

Monday, June 20, 2011

9:00 a.m.

Council Chambers at the Civic Centre, 26557 Civic Centre Road, Keswick, ON

Copies of the 2011 Development Charges Background Study and the proposed development charges by-law will be available through the Town’s administration office and available for download on the Town’s web site www.georgina.ca after Friday, June 3, 2011.

Written submissions are invited and should be directed to the Treasurer at rmathewson@georgina.ca no later than Monday, June 13, 2011. Written comments received prior to the meeting and submissions made at the public meeting will be considered by Council prior to the enactment of a new development charges by-law.

Inquiries should be directed to the Treasurer at (905) 476-4301, ext. 201.

Those wishing to address Council on the above-noted matters at the public meeting must advise the Office of the Town Clerk in writing no later than Wednesday, June 15, 2011, at the above address, by fax (905) 476-8100 or e-mail clance@georgina.ca.

[7] The Hemson Study included a draft by-law that incorporated a transitional provision, namely that, in the case of applications which had been approved for registration prior to the coming into force of the by-law, the development charges applicable prior to the coming into force of the by-law would prevail, so long as the development was constructed and occupied within 18 months of the coming into force of the by-law.

[8] The Staff Report considered at the June 20th meeting referred to that transitional provision and indicated that initially staff had proposed a transition period of 18 months. However, the Staff Report noted that the development community had enjoyed the benefit of lower development charges since expiration of the prior by-law in 2009 and accordingly the Staff Report contained a proposal for a shorter transition period that would apply only to building permits for such lots issued on or before December 31, 2011.

[9] The Applicant is a custom home builder who owns one or more existing lots of record. He was interested in and affected by the change in policy to no longer exempt existing lots of record.

[10] There is consensus as to some aspects of the meeting on June 20, 2011. A representative of Hemson gave a presentation on the background study and proposed development charges. A planning consultant spoke on behalf of the Georgina Developers Association (GDA) with respect to the background study and proposed by-law and he requested that Council defer consideration to a later date to allow the GDA to meet with staff. Many people spoke at the meeting about the issue of existing vacant lots of record including Dave Shearer of Shearer Homes Inc. Staff commented on the issues raised by the representative of the GDA and by Mr. Shearer and indicated they would meet with the GDA to address the issues he had raised.

[11] According to the Applicant, the Committee of the Whole/Council announced that it would go into private session. The Applicant said that everyone was standing around confused about the process and not knowing whether to wait in the hall. The Applicant said that the Mayor got everyone’s attention and promised that anyone who wanted to be notified prior to the by-law coming back to Council for discussion could put their name on a paper at the back of the room and they would be notified. The Mayor asked Mathewson to provide that paper. The Applicant and six others did put their names on the “Register” to indicate that they wished to be considered as an interested party with respect to the development charges by-law.

[12] In his affidavit sworn February 21, 2014, the Applicant deposed that he had obtained from Karen Wolfe, a reporter with the Pefferlaw Post, a transcript that she had provided based on her audio recording of the meeting held on June 20, 2011. The transcript indicates as follows:

Wheeler: As far as the notice for the meeting, next meeting, how will that be done?

CAO[^2]: In terms of notice of the next meeting, we will, obviously we are in close discussion with the Georgina Developers Association and anyone who was here today and made a presentation, we will ensure gets notice of the (high range???) . . . so that way anyone who receives correspondence will also receive notice of when it is coming back although I don’t believe we are required to have a further public meeting.

Mayor: But in fairness we should make sure that everybody knows. Actually, perhaps there is a piece of paper at the back of council, we will put something there so that if anyone wishes to be notified by email or otherwise. We will advertise in Georgina Advocate over the next few weeks . . . so that you’re aware of the dates of the meeting and if you wish to be notified by email or by telephone if you could just leave your name and your address at the back of the council chambers we will make sure and we will also have it up on our website and we will do everything possible to make sure that members of the business community and members of the public have access to the discussion. (emphasis added)

[13] The Respondent did not challenge the accuracy of the “transcript” created by the reporter.

[14] The “Register” left at the back of the room at the request of the Mayor contained a list of the following names: E. Rocha, D. Metherall, C. Metherall, A. Ellis, Tim Danbrook, S. Horvath, and G. Horvath.

[15] The Applicant said that, based on what the Mayor said, he and those who signed the Register and others had an expectation that there would be another public meeting and that the Town would provide notice of that meeting in the Georgina Advocate.

[16] At the conclusion of the Council meeting, the following resolution was adopted:

1. That council receive report DAS-2011-0032 regarding the draft development charges background study dated June 2011.

2. That Council receive the presentation of Jennifer Nelson, Hemson Consulting, regarding the draft development charges background study prepared for the Town of Georgina.

3. That council receive the development charges background study dated June 2011, under section 10 of the Development Charges Act, 1997.

4. That staff report back to Council within three weeks and advertise accordingly in the local newspaper.

B. Meeting of Council July 18, 2011

[17] The next regular meeting of Council was scheduled for July 18, 2011. Notice of that meeting was included in an advertisement in the Georgina Advocate on June 30, 2011 which indicated as follows:

TOWN OF GEORGINA COMMITTEE OF THE WHOLE & COUNCIL MEETINGS

Please be advised that due to the summer break, the following are the only dates scheduled for meetings of Town Council for the months of July and August:

Monday, July 18 Council 7:00 p.m.

Monday, August 22 Council 7:00 p.m.

Monday, August 29 Committee of the Whole 9:00 a.m.

However, if you have an issue or concern you wish to discuss, your Mayor & Members of Council are always available to assist you.

[18] Notice also was posted on the general schedule of Council meetings on the Town’s website. On July 15, 2011, the agenda for the July 18th meeting was posted on the Town’s website which included the following items:

15. Communications cont’d:

15.2.9 Dave Shearer, Shearer Homes Inc., requesting an 18 month grace period for the phasing in of the new development charges

a copy of his email to Mathewson dated June 22, 2011 is attached and indicates as follows:

Could you forward this letter to Mayor and Council

At the end of the meeting on Monday the Mayor asked about phasing in the development charges right away. If there is anyway you can at least give us builders the 18 month grace period to allow us to clear up inventory. A good portion of us builders sell homes 12 months to 18 months ahead. We cannot go back to our buyers and ask for more money and we can’t take that added cost.

Also one other note of interest, Rebecca Mathewson said that lots of record paid no fees or charges but this is not true. Any time a lot was created before 1991, when the severance was applied for they paid a severance fee. These lots did not get off without paying fees.

17. Committee Recommendations and Staff Reports:

17.1.3 Development Charges Background Study

Report No. DAS-2011-0036

Recommendation:

1. That Council receive Report DAS-2011-0036 regarding the Draft Development Charges Background Study dated June 2011, as amended.

2. That Council receive and approve the Development Charges Background Study dated June 2011, as amended, under Section 10 of the Development Charges Act, 1997. . . .

3. . . .

4. . . .

5. That Council states that it has given notice in accordance with section 12 of the Development Charges Act, 1997, of its intention to pass a by-law under Section 2 of the Act.

6. That Council states that it has received the background study and proposed by-law and directed staff to make the background study and by-law available to the public in accordance with section 12 of the Act.

7. That Council states that it held a public meeting to consider the enactment of the Development Charge By-Law in accordance with Section 12 of the Act.

8. That Council states that it heard all persons who applied to be heard and received written submissions whether in objection to, or in support of, the development charges proposed at the public meeting.

9. That Council has determined that no further public meetings were required under Section 12(3) of the Act.

10. That Council adopt a new Development Charges By-Law, as amended, attached to this report as Appendix “A”. . . .

[19] The report by staff referred to at paragraph 10 of the recommendation above contained the following at page 10 under the heading “Lots of Record”:

Since the Town enacted its first Development Charges By-law in 1991, the By-law has contained provisions to exempt existing “single lots of record” from the imposition of development charges. In 2008, Council directed staff to remove this exemption in the next proposed Development Charges By-law. Many municipalities had included this exemption at the time the Development Charges Act came into force, primarily as a transitional provision. Several municipalities have since eliminated this exemption within their DC By-laws.

The proposed Development Charges By-law does not include an exemption for “lots of record”. As a further transitional measure, the proposed By-law includes a provision to permit an exemption for a period of eighteen (18) months following the enactment of the By-Law, after which development charges will be payable in full.

[20] Paragraph 5 of the draft by-law attached to the agenda incorporated the transitional provisions for existing lots of record described in the report. Schedule B to the draft by-law outlined the phasing in of the development charges over the periods July 2011 to December 2011, January to June 2012, and July 1, 2012 to July 18, 2016.

[21] According to Mathewson, at the meeting on July 18th, Council resolved not to accept the staff recommendation for an 18 month transition for existing lots of record but did agree with the proposed phasing in schedule for all development charges, including those payable on existing lots of record. Council passed resolution No. C-2011-0346 incorporating some of the recommendations listed in the staff report referred to above along with resolution no. C-2011-0347 as follows:

That lots of record be treated the same as all lots and that the development charges be phased in per schedule B of the proposed by-law.

[22] The by-law took effect on July 19, 2011.

[23] The Applicant did not attend the meeting on July 18th. In his affidavit sworn February 25, 2014, the Applicant said that none of the people who had been at the June meeting attended the July meeting because none knew about it.

C. Proceedings Involving Ontario Municipal Board

[24] In August 2011, the Applicant represented 12 owners or former owners of single lots of record, (namely C. Morais, T. Nakeff, J. MacDonald, D. Shearer, P. Tumanidis, R. Oetelaar, D. Shepherd, M. Milani, M. Nash, R. May, I. Kranjec, and E. Rocha) in an appeal of the by-law pursuant to s. 14 of the Ontario Municipal Board Act.[^3] At a pre-hearing conference in April 2012, counsel for the Town brought a motion to dismiss the appeals without a hearing and the appellants brought a motion for discovery. As a result of a consent, the Town’s motion did not proceed and the parties resolved the discovery motion with a direction by the Board to counsel for the Town to distill the issues in a proper Issues List. In July, 2012, the Town pursued it’s motion to dismiss.

[25] As explained by the Board in its written decision dated August 3, 2012, the Issues List included six items. The Board held that the appellants had raised a triable issue with respect to issue #6 (which is not relevant to this proceeding). With respect to issues 2,3 and 4, the Board found that they were procedural matters dealing with notification of the public meeting prior to the adoption of the by-law; whether a public meeting was actually convened; and notification of the by-law’s adoption. The Board held that they did not raise triable issues because they dealt with procedure, they did not engage the substance of the by-law nor its supporting background study and raised matters of validity over which the Board did not have jurisdiction. Issues 1 and 5 dealt with the issue of the exemption for existing lots of record. The Board held that they did not raise triable issues vis-à-vis the Board.

[26] In October, 2012, the Applicant launched a Notice of Application for Judicial Review naming the Ontario Municipal Board as respondent in which he asked for various orders including an order declaring the development charges by-law to be void.

[27] In November, 2012, the Applicant served a motion pursuant to s. 96 of the OMB Act for leave to appeal the decision dated August 3, 2012.

[28] In February, 2013, the Applicant delivered a Notice of Abandonment of the Application for Judicial Review.

[29] In March, 2013, a Notice of Appointment of Lawyer was served indicating that Mr. Brown was acting for the Applicant.

[30] The motion for leave to appeal the OMB decision was heard on September 17 and 25, 2013. Both the Applicant and the Town had brought procedural motions, including the Town’s motion to quash summonses to witnesses that had been served on Mathewson and on Roland Chenier, the retired former Town Clerk. As indicated above, in reasons dated October 25, 2013, Mullins J. granted the motion to quash and dismissed the motion for leave to appeal.

Application for Judicial Review against the Town

[31] On August 30, 2013, the Applicant issued this Judicial Review Application naming the Town as Respondent in which the Applicant sought a declaration that the by-law had not been validly enacted; an order prohibiting the Town from collecting development charges pursuant to the by-law; an order requiring the Respondent to return development charges collected pursuant to the by-law; and an order declaring the by-law invalid or set aside.

Jurisdiction

[32] The Divisional Court has authority to hear the application for judicial review under ss. 2 and 6(1) of the Judicial Review Procedure Act[^4].

Positions taken by the Parties

[33] In the factum, counsel for the Applicant summarized the challenges to the procedure and the by-law as follows:

(a) The Town did not follow the legislated procedure to notify the public;

(b) The Town only provided a “draft” background study prior to the first meeting (June 20, 2010;

(c) The Town took a list of names from people at the first meeting that it promised to notify of the next meeting the by-law was discussed, and according to all the people on the list, failed to notify them;

(d) The Town resolved to advertise the next council meeting at which the development charges by-law would be discussed but did not do so in accordance with the notification procedures in the Development Charges Act not only by failing to seek the Town Clerk’s opinion with respect to how to notify the public but also by failing to provide the statutory 20 days’ notice;

(e) The Town failed to even advertise the July 18, 2011 as a meeting at which the development charges by-law would be discussed in the newspaper contrary to its resolution on June 20, 2011;

(f) The Town misrepresented to the Applicant, the OMB, and by repetition to this Court that Roland Chenier’s opinion was, given at the time of the notification, that the manner of notice provided was sufficient whereas Mr. Chenier provided no such opinion. To be clear, Roland Chenier’s evidence is that the Town Clerk’s office was not consulted until well after the by-law was passed;

(g) The Town prevented Roland Chenier from testifying before the OMB or the court; and

(h) The Town was aware of the deficiencies in the notice for the July 18, 2011 meeting but has taken the position that the July 18, 2011 meeting was not a “statutory public meeting”.

[34] The Town takes the position that it complied with all of the notice provisions with respect to the meeting on June 20, 2011; that the Town is only required to convene one public meeting; the Town was not required to comply with the notice provisions with respect to the regular Council meeting on July 18, 2011; there was no breach of natural justice in the passing of the by-law; and if a breach of natural justice occurred, the by-law is voidable; the court should decline to exercise its discretion to declare the by-law to be void and should not grant the other relief requested.

Issues

[35] The issues have been distilled to the following:

Was the Applicant denied procedural fairness with respect to the meeting held on June 20, 2011?

Was the Applicant denied procedural fairness with respect to the meeting held on July 18, 2011?

Should the application for judicial review be dismissed for abuse of process?

If the Applicant was denied procedural fairness, what is the remedy?

Legislative and Regulatory Framework

[36] Pursuant to s. 2 of the Act, the council may by by-law impose development charges against land to pay for increased capital costs required because of increased needs for services arising from development of the area to which the by-law applies. Pursuant to s. 10, before passing a development charge by-law, the council shall complete a development charge background study which includes estimates of the amount, type and location of development; calculations for each service to which the development charge by-law would relate; an examination of the long term capital and operating costs required for each service; and such other information as may be prescribed.

[37] Pursuant to s. 12(1) of the Act, before passing a development charge by-law, the council shall,

(a) hold at least one public meeting;

(b) give at least 20 days notice of the meeting or meetings in accordance with the regulations; and

(c) ensure that the proposed by-law and the background study are made available to the public at least two weeks prior to the meeting or, if there is more than one meeting, prior to the first meeting.

[38] Pursuant to s. 12(2) any person who attends a meeting may make representations relating to the proposed by-law. And pursuant to s. 12(3):

If a proposed by-law is changed following a meeting under this section, the council shall determine whether a further meeting under this section is necessary and such a determination is final and not subject to review by a court or the Ontario Municipal Board.

[39] Section 8 of the Development Charges Act Regulation (“DCA Regulation”)[^5] identifies additional requirements for the development charge background study.

[40] Pursuant to s. 9(1) of the DCA Regulation, the notice of the public meeting the council is required to give under s. 12(1)(b) of the Act shall be given in one of the following ways:

1. To every owner of land in the area to which the proposed by-law would apply, by personal service, fax or mail.

2. By publication in a newspaper that is, in the clerk’s opinion, of sufficiently general circulation in the area to which the proposed by-law would apply to give the public reasonable notice of the meeting.

Procedural Fairness

[41] As the Ontario Court of Appeal held in Ontario (Commissioner, Provincial Police) v. MacDonald[^6]:

Procedural fairness does not require an assessment of the appropriate standard of review. The proper approach is to ask whether the requirements of procedural fairness and natural justice in the particular circumstances have been met . . .

[42] As the Supreme Court has held[^7], the content of the duty of procedural fairness will vary from case to case and some or all of the following factors are relevant to determining the content of that duty:

(a) the nature of the decision and the decision-making process

(b) the nature of the statutory scheme

(c) the importance of the decision to the individual affected

(d) legitimate expectations(s) of the individual

(e) the nature of deference accorded to the administrative body.

[43] As the court held[^8] where the statute speaks, it must of course prevail. Where it is silent, the common law rules of procedural fairness apply.

Analysis

A. Was the Applicant denied procedural fairness with respect to the meeting held on June 20, 2011?

[44] The Applicant raised two issues which I do not consider relevant to the denial of procedural fairness, namely that the background study made available in June, 2011 was marked as a draft and that the background study should have contained a policy analysis of the elimination of the exemption for existing lots or record or whether there should be any transitional provisions.

[45] The first is not relevant because the resolution passed on June 20th indicates that it was “received” by Council. Before the July meeting, the “draft” notation was removed, no changes relevant to this proceeding having been made in the interim. The second is not relevant because it is the decision of Council whether to ask the consultant to prepare such a policy analysis. The background study was not required by the Act or by the DCA Regulation to include such an analysis. In any event, the staff reports indicate that senior staff members were alert to the issue and brought it forward to Council.

[46] I turn now to the issue of procedural fairnesss. As indicated above, s.9(1)2 of the DCA Regulation requires the Council to give notice by publication in a newspaper that is, “in the clerk’s opinion, of sufficiently general circulation in the area to which the proposed by-law would apply to give the public reasonable notice of the meeting”. The issue of whether Council complied with s. 9(1)2 became very controversial. As the various proceedings described above unfolded, the issue attracted more attention, with evidence of witnesses in the weeks prior to the hearing.

[47] Roland Chenier was the Town Clerk for about 10 years including in 2011. Lisa Lyons was the Deputy Clerk in 2011 and 2012. In the context of the appeal of the by-law pursuant to s. 14 of the OMB Act, the Town was required to file a record of proceedings. It included an affidavit dated September 28, 2011 signed by Lyons (and commissioned by Chenier) in which Lyons deposed that the public meeting requirements for the June 20, 2011 meeting had been complied with pursuant to s. 12(1) of the Act.

[48] In a letter to Chenier dated November 13, 2011 the Applicant referred him to s. 9(1) and the requirement that notice be given to every owner of land in the area to which the proposed by-law would apply by personal service, fax or mail and the alternative of publication in a newspaper. He asked Chenier to advise as to the basis upon which he had formulated his opinion that, with respect to the meeting on June 20, 2011, notice of public meeting in the local newspaper was “of sufficiently general circulation to achieve the same goal” as by personal service, fax or mail.

[49] The response was an email from counsel indicating that the Town was represented by counsel and all future inquiries should be directed to the lawyer named.

[50] The Applicant sent an email dated March 19, 2012 to counsel for the Town in which he asked whether the Town would stipulate to the Clerk’s opinion being solely the result of his personal and professional opinion regarding the form of public notice in order that the Applicant could avoid the need to question the Clerk.

[51] Counsel for the Town forwarded a letter dated April 3, 2012 in which he responded in some detail including the following:

As you are aware, distribution of the Notice may be by publication in a newspaper that, in the clerk’s opinion, has a sufficiently general circulation in the area to which the proposed by-law would apply to give the public reasonable notice of the meeting. As you are also aware, the Notice was published in the Town’s local newspaper, The Georgina Advocate, on Thursday, May 19, 2011, Thursday, May 26, 2011, Thursday June 2, 2011, Thursday, June 9, 2011 and Thursday, June 16, 2011. At the time the Notice was distributed, Chenier was satisfied that the circulation of The Georgina Advocate in the area to which the proposed by-law would apply provided the public reasonable notice of the meeting. This opinion was based on the following:

• The Georgina Advocate has a press run of 16,648;

• The Georgina Advocate is delivered to each home in the Town except for those homes where delivery is deemed dangerous;

• The Georgina Advocate is sent to every business in the Town by mail; and

• The Notice was published five (5) times in five (5) consecutive weeks.

As an additional measure, the Town published the Notice in the Pefferlaw Post on June 10, 2011. The Pefferlaw post is published bi-weekly, with 3,500 copies distributed on the 10th and 24th of the month to over 300 retail and professional outlets throughout its catchment area which included Pefferlaw, Virginia, Port Bolster, Udora, Georgina Island, Egypt, Sutton, Jackson’s Point, Baldwin, Belhaven, Keswick, Wilfred and Beaverton. (emphasis added)

[52] In the context of his motion for leave to appeal the August 3, 2012 dismissal by the OMB, the Applicant served a summons to witness on Chenier. In her decision dated October 25, 2013, Mullins J. quashed the summons.

[53] In an email dated January 28, 2014 Chenier advised the Applicant that at no time prior to the passing of the development charge by-law or after the passing of the by-law had he been consulted and he had not been consulted regarding the contents of any submission to the OMB regarding the appeals of the by-law. He added that the only involvement by the Clerk’s department was with respect to the appeal to the OMB. Chenier provided an affidavit sworn February 7, 2014 in which he repeated what had been in the email.

[54] Based on the evidence of Chenier, I am satisfied that he was not asked and did not give an opinion pursuant to s. 9(1)2 of the DCA Regulation.

[55] In his factum on behalf of the Town, counsel indicated that the April 3, 2012 letter “mistakenly stated it was Roland Chenier’s opinion that the statutory notice requirement had been met, when it was actually the deputy clerk, Lisa Lyons, who confirmed that the notice requirements had been met.”

[56] Based on the evidence of Lyons taken on February 28, 2014, I am satisfied that she was not asked and did not give an opinion pursuant to s. 9(1)2 prior to the meeting on June 20, 2011 or prior to the meeting on July 18, 2011 from which I infer that (a) the affidavit sworn September 28, 2011 spoke to her opinion at the time of the affidavit, not at the time of publication of the notice for either of those meetings; and (b) there is no basis for the attribution to her in the factum.

[57] The various responses on behalf of the Town as to the compliance with s. 9(1)2 understandably drove the Applicant and his counsel into a fact finding mission which ultimately was solved when Chenier sent an email and then signed an affidavit. On all of the evidence, I am satisfied that the Town failed to comply with s. 9(1)2 of the DCA Regulation in that neither the Clerk nor the Deputy Clerk gave the opinion required before notice was given.

[58] Applying the factors in Baker, the decision to be made by Council was important to the Town and to builders and developers. The statutory and regulatory scheme recognized that by imposing notice requirements and, as a result, the Applicant had a legitimate expectation that he would be accorded procedural fairness.

[59] Without minimizing the importance of compliance with the regulation, the fact is that in this case the notices in the newspaper achieved their purpose in that the Applicant and others were informed as to the time, date and place of the meeting; were informed as to the content of the meeting; were given access to the draft development charges background study dated June 2011, the proposed by-law and the Staff Report; affected members of the public were given an opportunity to voice their concerns; members of Council received and understood their concerns and agreed to defer the decision.

[60] I accept the importance of compliance with s. 9(1)2 of the DCA Regulation. I do not excuse the failure of Counsel to proceed with notification without obtaining an opinion of the Clerk or the Deputy Clerk. It is unsatisfactory that the Applicant was put in the position of having to be so persistent in order to obtain information about the involvement of the Clerk in complying with the notice requirements, which should have been readily available to him. This failure on the part of the Town will be a factor in the order made as to costs. However, notwithstanding that failure to comply, I am satisfied that the Applicant was not denied procedural fairness with respect to the meeting held on June 20, 2011.

B. Was the Applicant denied procedural fairness with respect to the meeting held on July 18, 2011?

[61] That cannot be said about the meeting held on July 18, 2011.

[62] Counsel made submissions as to whether the meeting on June 20th constituted the statutory meeting or whether a second statutory meeting was required. In the quotation in the transcript that preceded that of the Mayor, the CAO indicated that it wasn’t necessary to hold another public meeting. However, based on the statement attributed to him, the Mayor clearly committed to holding another public meeting. In the resolution that was adopted, Council agreed that staff would report back within three weeks and would advertise accordingly in the local newspaper. The resolution that was adopted at the June 20th meeting does not include a decision by Council that no further public meetings were required.

[63] Whether it was a second statutory meeting (which would have attracted the notice requirements referred to above) is not the issue. The Mayor clearly announced (a) that there would be another meeting; (b) that members of the public would be notified; (c) that notification would include advertising in the Georgina Advocate and personal contact through email or telephone and on the website; (d) that members of the business community and members of the public would have access to the discussion.

[64] In that context, I draw the following conclusions. The notice of the July 18 meeting was published in only one newspaper (Georgina Advocate) and only on one occasion in comparison with notification for the June meeting which included publication in two newspapers on six occasions. The notice of meeting published in the Georgina Advocate on June 30th informed the public only that a regular Council meeting would be held at a time, date and place. Unlike the notices in June, it provided no information as to the agenda. The agenda for the meeting held on July 18th was posted on the Council’s website only on July 15th. In that agenda, the recommendation to Council contained in the Staff Report was that the by-law not include an exemption for lots of record but did include a transition provision for a period of 18 months. In other words, in the unlikely event that a member of the public would see the agenda published on July 15th, s/he would understandably assume that the position that had been advocated by affected builders had been sustained by the consultations between staff and affected members of the public following the June 20th meeting. That does not mean that a member of the public could rely on Council accepting the staff recommendation but it would give comfort that the position was being heard, understood and acted upon by staff.

[65] There is a conflict in the evidence between Mathewson and others as to her efforts to notify those persons who had signed the list on June 20th.

[66] According to Mathewson, on July 15, 2011, she sent an email to each of the individuals on the registration list who had provided an email address in which she advised that the development charges background study and the proposed development charges by-law would be presented to Council for adoption on July 18, 2011. She said that she had attached to her email the development charges background study, as amended and the proposed by-law. She provided a list of the individuals to whom she had sent the emails which included “Gerry Danbrook” danbrook@neptune.on.ca. She said that the Applicant had not included an email address on the registration list but she had sent it to that address believing that it was the Applicant’s. In fact, it was the address for the Applicant’s brother. Mathewson said that on July 15 or 18, the Applicant had called her and asked her to confirm that the staff recommendation with respect to the 18 month exemption for existing lots of record had not changed. When she confirmed that, she said that the Applicant said that he would not attend the meeting on July 18, 2011.

[67] In his affidavit sworn August 27, 2013, the Applicant stated “unequivocally” that at no time either in writing or verbally did he receive notification of the July 18th meeting which he expected as a result of what was said at the June meeting. The Applicant said that the email and the telephone conversation described by Mathewson did not take place. He provided written confirmation by the six others who had signed the list who also insisted they had received no communications by email or by telephone.

[68] The Applicant also provided an affidavit of T. Nakeff (one of the OMB appellants) sworn February 25, 2014 in which he said that he had attended the meeting and the Mayor had told everyone that there would be another council meeting and that people would have another chance to address council. He said he relied on the Mayor’s representations and that the matter would be advertised. He said he checked the newspapers for notification of the next meeting. Had he been notified or informed, he would have attended the July 18th meeting.

[69] Factual conflicts such as these are challenging to resolve in the context of a notice of application for judicial review. However, the factual conflicts do not need to be resolved in order to arrive at my conclusions. The important point is that the Mayor assured affected members of the public that they would receive notice of the meeting at which Council would receive the staff report and that members of the public would have access to the discussion. Even if Mathewson sent an email on July 15th and even if Mathewson and the Applicant spoke on July 18th, (which I am not prepared to find on this record), that cannot constitute adequate notice of the meeting on July 18th.

[70] Counsel for the Town took the position that the Town was only required to hold one public meeting and that, pursuant to s. 12(3) of the Act its decision at the July 18th meeting that another public meeting was not required is not reviewable by this court. While not challenging the content of the transcript of the comments made by the Mayor at the June 20th meeting, counsel argued that the statements by the Mayor did not bind the Council and that a municipal corporation speaks through the resolutions of its council.[^9]

[71] I disagree with those submissions. Because of the unique circumstances of the Mayor’s representation on June 20th about what would happen, and the impact on procedural fairness, the decision of Council at the July 18th meeting that another public meeting was not required is reviewable by this court.

[72] As indicated above, the content of the duty of procedural fairness varies from case to case and in this matter, from meeting to meeting. Of all of the factors set out above which inform the duty of procedural fairness, it is the legitimate expectations of the Applicant that must take priority. The Mayor, speaking on behalf of Council, established those expectations at the conclusion of the meeting on June 20th. The Town woefully failed to fulfill the duty of procedural fairness that the Mayor voluntarily imposed on Council. Whether it convened a second statutory meeting or continued the original statutory meeting, the Town was required to provide notice and convene a public meeting consistent with the Mayor’s commitment to do so.

C. Respondent’s motion to dismiss the judicial review application for abuse of process

[73] Counsel for the Respondent took the position that this application should be dismissed for abuse of process because the Applicant had commenced and voluntarily abandoned his first Application for Judicial Review in which he sought the same relief. I disagree. The first Application named the Ontario Municipal Board as the respondent. The subject matter was the same but the parties and the legal issues differed. The fact that the Applicant has been persistent in the pursuit of his goal does not constitute abuse of process.

D. Remedy

[74] In his Notice of Application, the Applicant asked for the following relief:

(a) A declaration that by-law 2011-00078(AD5) was not validly enacted since the Respondent did not follow the processes set out in the Development Charges Act, S.O. 1997, c.27;

(b) An order prohibiting the Respondent from collecting development charges pursuant to that by-law;

(c) An Order requiring the Respondent to return development charges collected pursuant to that by-law;

(d) An Order declaring the by-law invalid or set aside.

[75] Once a denial of procedural fairness has been established, the question is identifying an appropriate remedy. The court has a wide discretion whether to impose the remedy sought by the Applicant, an alternate remedy or no remedy.

[76] I turn to the consequences of the denial of procedural fairness. Counsel for the Applicant takes the position that the by-law is void while counsel for the Respondent asserts that the by-law is voidable and ought not to be struck down. In Wiswell v. Greater Winnipeg (Metropolitan)[^10] the Supreme Court drew this distinction:

. . . A voidable by-law is one that is defective for non-observance or want of compliance with a statutory formality or an irregularity in the proceedings relating to its passing and is therefore liable to be quashed whereas a void by-law is one that is beyond the competence to enact either because of complete lack of power to legislate upon the subject matter or because of a non-compliance with a prerequisite to its passing.

[77] In her affidavit sworn November 19, 2013, Mathewson spoke of the prejudice to the Town if the court declared the by-law invalid. The operation of the by-law was not stayed by the OMB appeals or any of the proceedings commenced by the Applicant. As a result of the phased-in increase in the development charges rates, the full development charge rates became payable on July 1, 2012. As she pointed out, in the version of the proposed by-law that had been considered at the public meeting on June 20, 2011 and which had been recommended by staff for adoption on July 18, 2011, the proposed 18 month exemption for lots of record would have ended and the existing lots of record would have been subject to full development charges commencing on January 19, 2013.

[78] Mathewson observed that if an order was made for a refund of all of the development charges collected since the enactment of the by-law to the date of her affidavit (October 30, 2013), the Town would have to pay almost $1.7 million. In addition, Council would have to re-start the whole process to enact a development charges by-law.

[79] I agree with counsel for the Town that the consequences of a declaration that the by-law is invalid are substantial. The costs would be borne ultimately by municipal taxpayers which would be unfair.

[80] Mathewson referred to the correspondence between counsel for the Town and the Applicant following the issuance of his first Judicial Review Application in October 2012. At that time, the Applicant advised that he would amend to delete his request that the by-law be declared to be void because he had been advised that “it would be over reaching and not likely to succeed. . . and would result in unnecessary costs for the taxpayers of the Town of Georgina”. The Applicant abandoned that Judicial Review Application but the request for a declaration of invalidity was included in this second Judicial Review Application.

[81] According to the submissions on behalf of the Applicant, his ultimate goal was to have the by-law declared invalid and the Council be required to pass a development charges by-law that permanently exempted lots of record. That is an unrealistic position. Given the evidence of Mathewson that the by-law in question was undertaken at a time when there was a trend to roll back exemptions for lots of record, and given the recommendations of staff that owners of lots of record lose the exemption but with a transition period, the outcome of loss of exemption was a foregone conclusion. The issue was not whether but when owners of lots of record would become subject to the development charges.

[82] Although he did not have a lawyer at the time he withdrew the declaration of invalidity in his first Judicial Review Application, I agree that the sentiment the Applicant expressed in his correspondence was appropriate: seeking a declaration of invalidity was overreaching, unlikely to be successful and would impose unnecessary costs on the taxpayers.

[83] I have found that, with respect to the June 20th meeting, while the Town failed to strictly comply with the statute in that it failed to ensure that the Clerk or Deputy Clerk gave an opinion as to the method of notice, the Applicant was not denied procedural fairness. I have found that, with respect to the July 18th meeting, the Applicant was denied procedural fairness vis-à-vis the commitment made by the Mayor on behalf of Council with respect to the second meeting. It is not necessary for me to find that the second meeting was a “statutory meeting” and hence the issue of compliance with statutory requirements does not arise. The denial of procedural fairness did not come about as a result of the failure to comply with s. 9(1)2; rather it came about because the Mayor voluntarily imposed on Council obligations to notify and report and create an opportunity to consult and then failed to do so. The denial of procedural fairness arises at common law.

[84] The Respondent had the power to legislate development charges. This development charge by-law is not void but is voidable by reason of an irregularity in the proceeding.

[85] For the reasons outlined above, this is not a case where the court should exercise its discretion to declare the by-law void.

[86] However, the court should exercise its discretion to grant a remedy that is appropriate under the circumstances. The Applicant proceeded diligently albeit in directions that were not productive. He persevered in his attempt to get to the bottom of the Respondent’s compliance with s. 9(1)2. He has been successful in demonstrating that he (and others) were denied procedural fairness.

[87] In his submissions, counsel for the Respondent conceded that if any remedy were ordered, that it would be appropriate to direct that the development charges paid by the Applicant prior to January 19, 2013, if there were any, should be returned to him. I agree that that is an appropriate remedy for the Applicant. However, it is clear that the Applicant was at all times pursuing this struggle on behalf of other owners of lots of record who had similarly been denied procedural fairness, namely those others who signed the Register, to which reference is made above in paragraph 14 and those who appealed to the OMB to which reference is made above in paragraph 24.

[88] The record does not indicate how many lots of record owned by the Applicant would have been impacted by the by-law. Nor does it demonstrate how many lots of record in existence at July 19, 2011 would have benefited by the 18 month deferral which had been recommended in the Staff Report. However, I infer from what is known that such lots of record would be few in comparison to all lots of record on which the Town has collected $1.7 million. I am satisfied that a fair result is that the Applicant, the 5 others who signed the Register at the June 20th meeting, and the appellants to the OMB (some of whom overlap those who signed the Register) are entitled to the benefit of the 18 month exemption for lots of record on the basis that if they had not been denied procedural fairness with respect to the meeting held on July 18, 2011 and had had an opportunity to persuade elected councilors, the 18 month exemption recommended by staff may have been sustained.

ORDER TO GO AS FOLLOWS:

[89] By October 1, 2014, the Respondent shall re-pay to those listed in paragraph 90 such amount of development charges as were paid in relation to existing lots of record between July 19, 2011 to and including January 18, 2013.

[90] Paragraph 89 applies to the following persons (including his or her business or corporation):

T. Danbrook, A. Ellis, S. Horvath, G. Horvath, I. Kranjec, J. MacDonald, R. May, C. Metherall, D. Metherall, W. Metherall[^11], M. Milani, C. Morais, T. Nakeff, M. Nash,

R. Oetelaar, E. Rocha, D. Shearer, D. Shepherd, P. Tumanidis.

[91] If by July 18, 2014 counsel are unable to agree as to costs, then written submissions not exceeding three pages (plus costs outline and offer to settle if any) shall be served and filed as follows: by counsel for the Applicant by July 31, 2014 and by counsel for the Respondent by August 14, 2014.

Kiteley J.

Czutrin S.J.F.

Whitaker J.

Released: July 8, 2014

[^1]: 1997, S.O. 1997, c.27 [^2]: Sue Plamondon, Chief Administrative Officer [^3]: R.S.O. 1990, c. O.28 [^4]: R.S.O. 1990, c. J.1 [^5]: Ontario Regulation 82/98 [^6]: 2009 ONCA 805 at para. 37 [^7]: Baker v. Canada, [1999] 2 S.C.R. 817 [^8]: Re Gaudaur et al. and Corporation of the City of Etobicoke et al., 35 O.R. (3d) 551 quoting from Collins v. Estevan Roman Catholic Separate School Division No. 27 [1988] S.J. No. 476 (C.A.) [^9]: Metropolitan Toronto Condominium Corporation 626 and Marlene Klewans v. Bloor/Avenue Road Investment Inc. and Kevric Ontario Real Estate Corporation (ONSC) [^10]: [1965] S.C.R. 512 at para 40 [^11]: W. Metherall did not sign the Register but is listed in the letter dated April 4, 2012 which is Exhibit B to the Applicant’s affidavit sworn Feb. 5, 2014