CITATION: Pattison Outdoor Advertising LP v. City of Toronto, 2016 ONSC 2419
DIVISIONAL COURT FILE NO.: 340/14 DATE: 2016 04 11
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, THORBURN AND LEMAY JJ.
BETWEEN:
Pattison Outdoor Advertising LP Applicant
– and –
City of Toronto Respondent
P. Harrington for the Applicant
R. Oliver and N. Rolfe for the Respondent
HEARD at Toronto: March 4th, 2016
LeMAY J.
Overview
[1] The Applicant, Pattison Outdoor Advertising LP (“Pattison”) seeks judicial review of a decision of Toronto City Council denying a request for five variances of the City’s sign by-law for a sign on Fraser Avenue near the Gardiner Expressway. This decision was based on the recommendation of the Toronto East York Community Council (“TEYCC”) flowing from a meeting that was held on May 13th, 2014.
[2] The City’s sign by-law, which is Chapter 694 of the Municipal Code, sets out a complete code for the types of signs and billboards that are permitted, and in what areas of the City. A party who wants to put up a type of sign that is not permitted in a particular area can apply for a variance. These variances are considered, in the first instance, by the City’s Sign Variance Committee. If the City Councillor for the ward where the sign is located is unhappy with the decision of the Sign Variance Committee, then he or she can appeal that decision to the Community Council for the area. The Community Council then considers the application and makes a recommendation to City Council, which is voted on.
[3] In this case, Pattison sought to change one of the billboards that it had on location at 7 Fraser Avenue, near the Gardiner Expressway, from a regular static display billboard to an electronic sign. The Sign Variance Committee granted the necessary variances on conditions. The Local Councillor, Mr. Gordon Perks, appealed this decision to TEYCC, which issued a recommendation to City Council that it overturn the decision and deny the variances. City Council accepted TEYCC’s recommendation.
[4] Pattison is seeking to judicially review City Council’s decision on the basis that this was an administrative decision, and that both TEYCC and City Council denied Pattison procedural fairness. More specifically, Pattison is seeking a writ of certiorari and a writ of mandamus from this Court.
Issues
[5] Two issues present themselves in this case:
a. Was TEYCC carrying out a legislative or an administrative function when it denied Pattison the variances it was seeking?
b. If the answer to the first question is yes, did the processes that were followed by the City in considering Pattison’s requested variances accord with the principles of fundamental justice?
[6] For the reasons that follow, I find that both TEYCC and City Council were carrying out an administrative function in ruling on these variances. As a result, a duty of procedural fairness was owed to Pattison in making the decisions. However, I also find that both TEYCC and City Council afforded Pattison an appropriate level of procedural fairness given the nature of the decision they were making. I would therefore dismiss this application.
[7] Some background facts are necessary in order to understand my answers to these two questions.
Facts
a) The By-Law
[8] Effective in 2010, the City of Toronto harmonized the various sign by-laws that had existed across the various predecessor municipalities that were amalgamated to create the City of Toronto. The by-law is set out in the Toronto Municipal Code, Chapter 694.
[9] The by-law set out standards for, inter alia, both first party and third party signs. First party signs advertise things that are available at the sign’s location. Third party signs advertise things that are not available at the sign’s location. Pattison’s application concerns a third party sign.
[10] Under the by-law, there are limits on the size, location and type of third party signs that can be erected. The by-law also establishes the Sign Variance Committee, composed primarily of citizens appointed by Council for the term of Council. A party can seek a variance (or variances) from the by-law for particular signs by applying to the Sign Variance Committee. There are provisions that require the party seeking the variation to file materials with the City’s Building Department, and to post public notices of the variances that are being sought in advance of the Sign Variance Committee’s hearing.
[11] The sign by-law sets out nine criteria that are to be considered in deciding whether to grant a variance. Those criteria are as follows:
A. An application for variance from the provisions of this chapter may be granted where it is established that the proposed sign or signs will:
(1) Belong to a sign class permitted in the sign district where the premises is located;
(2) In the case of a third party sign, be of a sign type that is permitted in the sign district, where the premises is located;
(3) Be compatible with the development of the premises and surrounding area;
(4) Support the Official Plan objectives for the subject premises and surrounding area;
(5) Not adversely affect adjacent premises;
(6) Not adversely affect public safety;
(7) Not be a sign prohibited by § 694-15 B;
(8) Not alter the character of the premises or surrounding area; and
(9) Not be, in the opinion of the decision maker, contrary to the public interest.
[12] In the case of a third-party sign, the City’s Chief Building Official will serve notice of the requested variance to all of the property owners within a 120 meter radius of the site where the sign is located.
[13] At the actual hearing before the Sign Variance Committee, City staff will generally present a report outlining their view on whether the variance should be granted, and whether it fits within the criteria set out in the By-law.
[14] The Sign Variance Committee can grant the variance, grant it with conditions or deny it. If the Sign Variance Committee denies the variance, then the decision is final. If they approve the variance (with or without conditions), then the Councillor for the Ward where the sign is located has a right of appeal to the local Community Council.
[15] The appeals process is described in section 694.30 of the Sign By-Law. The relevant portions state:
S. The ward councillor may elect to have the decision of the Sign Variance Committee to grant a variance or variances, or grant a variance or variances with conditions, considered by Council by filing an application to consider in the form and manner approved by the Chief Building Official within 20 days of the date of the decision.
T. Upon receiving an application to consider from a ward councillor pursuant to Subsection S, the Chief Building Official shall report as necessary to the next available meeting of the community council for the geographical area containing the premises where the sign is proposed to be to be erected or displayed or to be the subject of the Signage Master Plan, which will hear and consider the application for variance and make recommendations to Council for final decision.
U. Upon considering an application for variance from this chapter, Council may:
(1) Grant a variance or variances;
(2) Grant a variance or variances with conditions; or
(3) Refuse to grant a variance or variances.
V. Council may grant a variance or variances from the provisions of this chapter where Council determines that the application for variance satisfies the criteria set out in § 694-30A.
W. Any decision of Council is final and binding on the date of its adoption.
[16] These appeal processes are expanded on by Chapter 27 of the Municipal Code, which sets out detailed procedures, as well as the duties of Community Councils. Community Councils are made up of City Councillors from the respective community area. For example, the Toronto East York Community Council is made up of the Councillors representing wards in the old City of Toronto and the old Borough of East York.
[17] The sign by-law also gives “any person” the right to appear before the Sign Variance Committee and make submissions. Similarly, on appeal to the Community Council, a party may make public presentations to the Community Council, but not to City Council as a whole, unless otherwise required by legislation. In this case, there is no legislative provision that grants a party the right to make public in-person representations to Council as a whole.
[18] If a party makes written representations to City Council, those representations are included in the materials that are placed before City Council when it makes its decision.
b) The Consideration of This Variance
[19] Pattison had three signs on a property at 7 Fraser Avenue in the west end of the City of Toronto, near the Gardiner Expressway. They sought a variance to change one of the signs from a static display to an electronic static display, as well as change its size. A static display sign only displays one advertisement at a time. The proposed electronic static sign would have had up to eight rotating static images. These images would change every eight to ten seconds.
[20] The proper materials were served and the proper notice given under the by-law. A staff report was prepared which supported Pattison’s application for a variance, and identified that the nine criteria for a variance were met. This report was dated January 27th, 2014.
[21] Councillor Perks submitted a letter in opposition to the requested variance. In this letter, he identified his concerns as being that the building where the sign is located is on the City’s list of Heritage Properties, and the proposed sign might adversely affect safety in the area. This letter was part of the materials that were considered by the Sign Variance Committee, and Pattison had a copy of this letter.
[22] The variances were approved by the Sign Variance Committee after a public hearing. This decision was appealed by Councillor Perks on February 24th, 2014, and the proper form was filled out and submitted to the Chief Building Officer. A copy of this form was not provided to Pattison. However, they became aware of the contents of this form when it was published as part of the Chief Building Officer’s report on the issue.
[23] The issue was put on the agenda for the May 13th, 2014 meeting of the TEYCC. A further report was prepared by the Deputy Chief Building Official. This report contained broadly the same analysis as the report prepared for the Sign Variance Committee, and also concluded that the sign met the nine criteria set out in the by-law. The report recommended that the decision should be upheld.
[24] At the May 13th, 2014 meeting of TEYCC, a presentation was given by staff to TEYCC about the variance review process. This report suggests that TEYCCC was acting as an administrative decision maker, and had to apply the nine criteria for a variance from the sign by-law.
[25] Once this presentation was completed, Pattison raised some objections of procedural fairness about the process. Then, TEYCC turned to the merits of the case. Submissions were made by Pattison on the merits of the proposed variances. As well, staff from the Chief Building Official’s office presented their report. Questions were then asked of the city staff person, and Pattison was given an opportunity to reply.
[26] Once all of the submissions were heard, Councillor Perks moved to have all of the variances denied. He provided an explanation for his motion that included more details than were set out in his original letter. However, the explanation did focus on the two concerns that his original letter raised. Councillor Perks’ motion was carried.
[27] At this stage, the motion was only a recommendation of the TEYCC. It was forwarded to City Council for a decision at Council’s meeting between June 10th and 13th, 2014.
[28] Pattison wrote to all members of City Council, prior to the meeting, because in-person deputations were not permitted under the City’s by-laws. Pattison’s submissions addressed procedural issues, but did not address the merits of the issues raised at TEYCC by Councillor Perks.
[29] When Council made its decision, it is clear that it considered Pattison’s submissions. Indeed, there were a number of speakers at Council who raised some of the same concerns that Pattison had about the process.
Issue #1- Were TEYCC and City Council Acting Legislatively or Administratively?
[30] The distinction between whether TEYCC was acting administratively or legislatively is a key consideration in this case. If TEYCC was acting administratively, then the principles of fairness and natural justice apply.
a) The Decision Was Administrative in Nature
[31] The difference between a policy and a legislative decision has been explained in a number of decisions. In Toronto Taxi Alliance v. Toronto (City) (2015 ONSC 685), Stinson J. explained the distinction as follows (at paragraph 49):
The distinction between legislative and administrative action has been characterized as the difference between general and particular. “A legislative act is the creation and promulgation of general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practice.”
[32] In the case before us, it is clear that the decision is a particular decision rather than a general decision. The sign by-law as a whole is the general decision. It sets the policy, and the scope for exceptions, for all of the signs in the City of Toronto. The decision of City Council in this case was a specific decision involving a specific sign. It is clearly an administrative decision, and attracts a duty of fairness.
b) The Scope of the Duty of Fairness in This Case
[33] The steps to be taken in determining the scope of the duty of fairness in a particular case are set out in Baker v. Canada (1999 699 (SCC), [1999] 2 S.C.R. 817). In that decision, L’Heureux-Dube J. sets out five criteria to be assessed in determining the scope and extent of the duty of fairness in a particular case. These criteria can be generally summarized as follows:
a. The content of the duty of fairness is variable, and must be decided by looking at the specific context of each case.
b. The nature of the statutory scheme in which the decision arises must be considered. Final decisions will generally attract a higher duty of procedural fairness.
c. The importance of the decision to the individual or individuals affected must be considered. The more important the decision, and the greater its impact, the more stringent the procedural protections.
d. The legitimate expectations of the party challenging the decision must be considered. However, this is only a procedural protection and not a substantive guarantee.
e. The duty of fairness that a Court imposes must also take into account and respect the choices that are made by the agency itself.
[34] In addition to these five criteria, L’Heureux-Dube also provides a more general statement about the duty of fairness (at paragraph 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.
[35] In this case, when all of these considerations are assessed, we reach the following conclusions:
a. The context of this case suggests that the duty of fairness owed to Pattison is on the lower end of the spectrum. This is a decision of City Council about one sign, and whether something that would otherwise be prohibited by the by-law should be permitted.
b. This decision arises in the context of a municipal licensing system. It is open to Pattison to re-apply for these variances at any time, and to provide further evidence in support of its position at any time. This also suggests that the duty of fairness in this case is on the lower end of the spectrum.
c. The nature of the decision in this case also suggests that the duty of fairness is at the lower end of the spectrum for two reasons. First, Pattison is seeking to obtain a benefit (a variance) that it would not be entitled to under the terms of the by-law. Second, this is a case about a single sign and a single variance. It is unlike the decision in 1657575 Ontario Inc. v. Hamilton (City) (2008 ONCA 570), where the municipality took away the business’ license to operate. In a case where a person (or business) is losing their livelihood, the duty of procedural fairness will be significantly higher.
d. Pattison’s legitimate expectations should include a belief that they will know that the Councillor for the ward may have views about whether a particular variance should be granted, and that the Councillor may seek to advance those views in any appeal process. Again, this factor suggests that the duty of fairness in this case is on the lower end of the spectrum.
e. Finally, the analysis of what procedures the duty of fairness requires should take into account, and respect, the procedural choices made by the agency itself. In this case, this is a particularly important factor because Toronto City Council is a democratically elected body, and its members are selected to represent the interests of the City’s residents.
[36] In short, the duty of fairness owed to Pattison in this case is at the very low end of the spectrum. It is limited to ensuring that Pattison knows, in a general way, the reasons why its variance is being opposed, and has some mechanism for making submissions on these issues. Given the regulatory nature of these proceedings, expanding the duty of fairness to something akin to that provided in the Court system would place an undue burden on the City.
[37] Before analyzing how this duty of fairness applies in this case, I note that there was some argument between the parties about whether this was an appeal or a hearing de novo. It is not necessary for me to resolve that issue, as the duty of fairness applies regardless of the nature of the proceeding.
Issue #2- Did the City’s Processes Accord with the Principles of Fundamental Justice
[38] Pattison raises two issues with respect to the City’s processes. First, Pattison challenges the fairness of the process because the Councillor who appealed the Sign Variance Committee’s decision was one of the people who decided the appeal. Second, Pattison challenges the fact that it did not have the opportunity to fully respond to the case advanced against granting the variance.
[39] Neither argument succeeds in this case. I will address each in turn.
a) Councillor Perks Participating in the Decision
[40] Pattison argues that, because Councillor Perks was both the appellant and one of the decision makers in this case, there was a reasonable apprehension of bias and he should have recused himself from the decision making process.
[41] This argument must be assessed in context. First, Councillor Perks is a City Councillor. His primary duty is to advocate for the interests of his ward. As a result, the test for bias is significantly lower than it would be in a case before an administrative tribunal or a Court.
[42] In Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) (1990 31 (SCC), [1990] 3 S.C.R. 1170), the Supreme Court considered a case where a City Councillor had been supportive of an application for development before various City committees. He had supported the development prior to the necessary zoning changes and by-law changes being approved by City Council. The Residents Association had opposed the changes.
[43] The Residents Association challenged the involvement of the Councillor on the basis that he was biased, because he had been supportive of the development before the necessary decisions had been made by City Council. The Supreme Court dismissed this challenge, stating (at paragraph 45):
Furthermore, with respect to the enactment of zoning by-laws and amendments to zoning by-laws, it is well known that numerous committees are involved at which members of Council are expected to vote before being called upon to hear representations and decide the question. Moreover, in the preparation and processing of a development, a municipal councillor is often involved in assisting parties supporting and opposing the development with respect to their presentations. In the course of this process, a councillor can and often does take a stand either for or against the development. This degree of prejudgment would run afoul of the ordinary rule which disqualifies a decision-maker on the basis of a reasonable apprehension of bias. Accordingly, it could not have been intended by the Legislature that this rule apply to members of Council with the same force as in the case of other tribunals whose character and functions more closely resemble those of a court.
[44] In this case, Councillor Perks is entitled to form a view about the appropriateness of the proposed variance, and he is entitled to advance his views. He is the Councillor for the ward, and it is his responsibility to represent the interests of his constituents.
[45] As noted in Save Richmond Farmland Society v. Richmond (Township) 1990 1132 (SCC), [1990] 3 S.C.R. 1213 at paragraph 24, a municipal Councillor will not be disqualified from adjudicating a matter such as this on the basis of a reasonable apprehension of bias unless he or she has prejudged the matter to be decided to the extent that he or she can no longer be persuaded to change his or her mind. In this case, there is simply no evidence that Councillor Perks had this level of bias.
[46] Second, the City’s own by-law envisions that an appeal of a decision of the Sign Variance Committee can only be launched by the Councillor for the ward. It is clear that the City’s own processes permit the Councillor to oppose the proposed variance. One of the Baker, supra, factors that must be considered in assessing the extent of the duty of procedural fairness is the choices of the agency itself. In this case, the City of Toronto has chosen a process that allows the ward Councillor to be an appellant, while permitting him to cast his vote on the issue of whether the variance should be approved. The Court should respect that choice.
[47] There are also good public policy reasons for respecting Council’s choice. The Councillor is elected to represent the interests of his ward. There should be clear grounds for a finding of bias before a Court directs that a City Councillor cannot vote on an issue that is of direct concern to his or her ward. Councillors are expected to have opinions about what is best for their ward.
b) No Opportunity to Respond to the Case Against Them
[48] This issue can be very briefly dealt with. Pattison’s argument on this issue is that they did not know, in advance of the hearing before TEYCC, every detail of the argument that Councillor Perks was advancing against their application. This argument suffers from two fatal flaws:
a. Requiring disclosure of every detail of every argument is a form of procedural fairness that only exists at the higher end of the Baker spectrum. This case falls at the lower end of the spectrum. Pattison is only entitled to an opportunity to respond to the issues raised by Councillor Perks’ appeal. They had that opportunity.
b. In any event, Pattison had the opportunity to outline its position to City Council in written submissions. It was open to Pattison to challenge all of the facts and issues raised by Councillor Perks at the TEYCC meeting. Whatever Pattison put in writing would be shared with City Council before they made their decision. This opportunity to make written submissions is sufficient procedural fairness given that the duty of fairness in this case is at the lower end of the spectrum.
[49] Pattison was not entitled to an oral hearing on every issue that was raised in this case. Pattison was entitled to a reasonable opportunity to respond to the arguments made against its application. That opportunity was provided by the City’s process, and by the information that Pattison had about the general reasons for Councillor Perks’ appeal. The decision was made on the basis of the criteria in the City’s Sign By-law, and this Court should not interfere with that decision.
Costs
[50] Both parties take the same position with respect to costs. Each argues that they should have costs in the sum of $20,000.00 inclusive of HST and disbursements if they are successful. However, each party also takes the position that, if they are unsuccessful, the other side should not be awarded costs because this will have been a unique case.
[51] In this case, Pattison is the unsuccessful party. In a normal case, the City would be entitled to its costs. However, the question raised by the parties position on costs is whether this issue is sufficiently novel, or there is a sufficient public interest, to deny the City its costs of this case.
[52] The question of whether a case raises a novel issue is a consideration to be taken into account in determining whether there should be a costs award. Deciding whether there is a novel issue in play is often a matter of degree, rather than applying a bright line test. Finally, costs awards are dependent on the individual circumstances of each case.
[53] There are three factors that affect the question of whether costs should be awarded in this case:
a. The City has not faced a sign variance appeal prior to this one. As a result, this case is a relatively new issue for both parties. The guidance that flows from this case will hopefully be of assistance to both the parties in this case and other participants in the City’s process.
b. There are few, if any, decided court cases that are directly on point. As a result, this decision, to a certain extent, falls into a gap in the case-law.
c. Both parties were of the view that, if they lost, this would be a “unique” case.
[54] However, it must be remembered that Pattison was pursuing its own private and financial interests in this case. Given that it was unsuccessful, an award of some costs is appropriate. However, for the reasons given above, the costs award should be reduced from the $20,000.00 inclusive of HST and disbursements sought by the City.
[55] I would fix the costs of this matter at $5,000.00 inclusive of HST and disbursements, payable by Pattison to the City within 30 days.
Disposition
[56] For the foregoing reasons, the application for judicial review is dismissed. Pattison shall pay costs to the City of Toronto in the sum of $5,000.00, inclusive of HST and disbursements within thirty days of the release of these reasons.
___________________________ LeMay J.
Sachs J.
Thorburn J.
Released: April 11, 2016
CITATION: Pattison Outdoor Advertising LP v. City of Toronto, 2016 ONSC 2419
DIVISIONAL COURT FILE NO.: 340/14 DATE: 2016 04 11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, THORBURN AND LEMAY JJ.
BETWEEN:
Pattison Outdoor Advertising LP v. City of Toronto Applicant
- and -
City of Toronto Respondent
REASONS FOR JUDGMENT
LeMay J.
Released: April 11, 2016