CITATION: Hussain v. Toronto (City), 2016 ONSC 3504

DIVISIONAL COURT FILE NO.: 647/15

DATE: 20160527

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DAMBROT, R.J. SMITH and C. HORKINS JJ.

B E T W E E N :

ALAMGIR HUSSAIN Applicant

– and –

THE CITY OF TORONTO Respondent

Alamgir Hussain, in person

Ansuya Pachai, for the Respondent

HEARD: May 25, 2016

M. DAMBROT J.:

[1] The applicant, Alamgir Hussain, applies for judicial review of the City of Toronto’s decision to deny his organization a special event permit to hold an event in a public park. This decision was delivered to the applicant during a meeting with City staff on November 10, 2015.

Background

[2] Section 11 of the City of Toronto Municipal Code, Chapter 608, Parks (“Parks By-Law”), prohibits special events in public parks unless authorized by a permit.

[3] A “special event” is defined in the Parks By-Law as:

A picnic, walkathon, fundraiser or gathering over 200 persons or any event that requires staff support, specific permissions or the provision of materials or equipment such as, but not limited to, the use of sound amplification, acceptance of donations, installation of tents, vehicle access, electrical access or requests to borrow equipment, beyond that typically provided at the subject location.

[4] Pursuant to s. 49 of the Parks By-Law, permits may be obtained by application to the Customer Service Section of the City’s Parks and Recreation Division (now called the Parks, Forestry and Recreation Division). When permits are issued, they may include conditions as to time, location, area, equipment, number of participants, types of activities, release, indemnity and insurance coverage.

[5] Toronto has more than 1500 public parks. The park system covers 8,000 hectares, or roughly 13% of the City’s land area. The City receives approximately 1,200 parks permit applications annually for a large variety of special events. The Parks, Forestry and Recreation Division is responsible for managing and providing a wide range of leisure and recreational opportunities in Toronto. The Management Services section of the Division provides administrative support for the Division, and is responsible for reviewing permit applications and working with other staff and officials in processing such applications. Generally, permit applications are reviewed and processed by the Management Services section staff. Depending on the circumstances, the staff may consult with operational staff in the Parks section of the Division and other City agencies, boards and divisions such as Public Health, Toronto Police Services and Municipal Licencing and Standards. While permits are issued under the signature of the General Manager of the Division, various staff may be involved in assessing permit applications as circumstances require. Although Ward councillors become involved in permit matters from time to time, operational matters remain the responsibility of City staff.

[6] On several occasions, the applicant, at first in his personal capacity, and later through his organization, the Shomoy Mela Foundation, hosted a Canada Day event in Dentonia Park, a large public park in Toronto. Dentonia Park is a 6.1 hectare park near Danforth Avenue and Victoria Park. It is primarily a sports facility comprised of a lit baseball diamond, a multipurpose sports field, a cricket pitch, a basketball court, a splash pad and a children’s playground. It offers an afternoon preschool programme and a summer camp.

[7] The applicant requires a special event permit to host a Canada Day event. He was issued such a permit in 2008, 2010, 2011 and 2013, and held a Canada Day event on each occasion. These events have been well-attended, but have been marked by serious health and safety issues.

[8] The following problems occurred in 2008, 2010 and 2011:

2008

• Vehicles were parked illegally in the park;
• Food vendors did not attend a food-handling course;
• Food vendors did not provide hand-washing stations;
• Garbage was overflowing;
• Vendors were present that had no vending permits;
• Vehicles were not removed from the park in a timely manner;
• Public Health and By-law Enforcement shut down all food vending;
• Music was playing past 9:00 pm until by-law enforcement officials directed that it be turned off; and
• The park was not cleaned after the event, as required.

2010

• Information required by Toronto Public Health and other City departments, including in relation to food safety, was not provided despite repeated requests to provide same;
• The food handler training course arranged by a Public Health Inspector was cancelled by the Shomoy Mela organizer;
• Three vendors had their food products condemned due to temperature abuse, and one vendor was closed down because of an absence of refrigeration to store food products, specifically raw chicken;
• No hand washing stations were available;
• Chicken was transported in a car trunk at temperatures within the danger zone;
• Several vendors could not identify where they purchased their meat products;
• Rice, chicken and other products were stored in very large pots that were neither refrigerated nor heated; and
• Vendors were not provided copies of the Toronto Public Health requirements that had been provided to the organizer.

2011

• Approximately six vehicles were parked illegally in the park;
• Food vendors not pre-approved by Toronto Public Health were present, including two ice cream trucks, one candy floss vendor and one food vendor that was given a vending location that had been approved for another vendor;
• A gas powered generator was not fenced in accordance with the conditions of use;
• Wires were running on the grass and not secured, creating trip hazards; and
• Unauthorized sale of furniture and mattresses, items not listed in the application, was permitted.

[9] Despite the City’s attempts to work with Mr. Hussain in the years preceding 2013, the following occurred at the 2013 event:

• Hot oil used in food preparation was not properly protected and was accessible to the public, creating a danger for anyone who got too close to the oil;
• Electrical wires used for generators and other devices were haphazardly placed throughout the park and were not properly protected, creating multiple trip hazards;
• Generators were not protected and fenced off from public, and more generators than were authorized were used;
• Garbage was left lying around throughout the day, the park was left a mess and garbage blew in the streets and on to home owners' properties;
• Tents other than those that were authorized were installed in the park. These tents were of a type that required a building permit to ensure that they were secured in a manner that did not endanger the public;
• Gasoline containers were not stored securely and were instead open and accessible to the public;
• Large speakers were stacked in an unsecure manner and were not cordoned off from the public;
• 25 parking tickets were issued; and
• Unauthorized commercial vendors and advertisements were present.

[10] When the applicant began the process of applying for a special event permit for 2014, the City expressed concerns about these issues. With the help of Councillor Davis, the City Councillor for the area, the applicant convinced the City to issue a conditional permit. However, when it became apparent that the applicant would not follow the conditions laid out in the permit, his application was denied.

[11] When the applicant applied for a special event permit for 2015, he was informed by letter that Dentonia Park was unavailable on account of the 2015 Pan Am Games. The applicant challenged this denial, but the City stood by its decision.

[12] In October 2015, the applicant filed an application for a special event permit for 2016. After reviewing the application, City staff decided that the permit would not be issued. A meeting, set up by City staff, was held on November 10, 2015. City staff met with the applicant and two executive members of the Shomoy Mela Foundation to discuss the applicant’s application. During the meeting, City staff informed the applicant that he would not receive a permit for 2016. Aside from this basic fact, there are conflicting accounts of what took place during this meeting.

[13] The applicant filed the affidavit of Wahidur Rahman on this application. The entirety of the substance of his affidavit reads as follows:

2. On November 10, 2015, I attended the meeting at the City Hall where the decision makers Mark Hawkins, Cathy Hargreves (sic) and David Craig were present.

3. All the decision makers told us that no permit will be issued to Shomoy Mela Foundation in any Park in the City of Toronto and the decision of denial was given by the Superior Authority. They did not give any reasons of denial and did not provide any name of Superior Authority.

[14] The City filed the affidavit of Cathy Hargreaves, a Supervisor in the Management Services section of the City Parks, Forestry and Recreation Division. Ms. Hargreaves supervises four Special Events Permit Officers who review and issue permits. Ms. Hargreaves becomes directly involved when concerns arise with these tasks.

[15] Ms. Hargreaves said that she attended the meeting with Mr. Hussain and two members of his Foundation on November 10, 2015, along with four other City officials whom she named. The purpose of the meeting was to discuss Mr. Hussain’s permit application for the use of Dentonia Park on July 1, 2016. The officials summarized the problems at past events in considerable detail. In the course of the meeting, Ms. Hargreaves advised Mr. Hussain that the City could no longer issue permits to Mr. Hussain for the use of Dentonia Park for a special event. She explained that City officials had attempted to work with him and his group for the past six years, and unfortunately every year there were multiple issues, concerns and by-law infractions. She told him that his permit request for 2016 was being denied, as the City officials feared that if they continued to issue him a permit, he would continue his pattern of failing to make the necessary improvements, failing to meet the necessary conditions of use and failing to comply with the applicable by-laws.

[16] Ms. Hargreaves said that the applicant pleaded to be given one last chance to prove that he could run an event without issues, but this request was denied. When the applicant asked whom the decision was coming from, they explained that the decision was made by senior management, and advised that he could appeal to the General Manager of the Division.

[17] In view of the applicant’s complaint that he was not given reasons for the refusal of a permit for 2016, it is necessary for us to resolve the dispute about what was said at the November 10, 2015 meeting. I note that neither affiant was cross-examined.

[18] I begin by stating that the Mr. Rahman’s account of the meeting seems improbable. It is hard to imagine why City officials would call a meeting to discuss Mr. Hussain’s application, have five officials attend the meeting, and then say nothing more than that a permit would not be issued, and that the decision was made by a “Superior Authority”. It also seems most unlikely that City officials would use the words “Superior Authority” to describe the decision-maker, rather than senior management, as Ms. Hargreaves said. On the other hand, the description of the meeting sworn to by Ms. Hargreaves seems entirely reasonable. In the end, however, the most compelling reason for preferring the evidence of Ms. Hargreaves is the fact that she made contemporaneous and detailed notes of what was said at the meeting, and included them as an attachment to her affidavit. The description of what was said at the November meeting in her affidavit is consistent with and confirmed by these notes.

This Court’s Jurisdiction

[19] Pursuant to ss. 2(1) and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, this Court has jurisdiction to grant any relief that an applicant would be entitled to in: (1) proceedings by way of an application for an order in the nature of mandamus, prohibition or certiorari, or (2) proceedings by way of an action for a declaration or for an injunction or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

Standard of Review

[20] The Applicant challenges the decision of the City on the basis of procedural fairness, bias and violations of the Canadian Charter of Rights and Freedoms. No standard of review analysis applies to these questions. Rather, the court will determine whether procedural fairness has been breached, or bias or a violation of the Charter has been shown and will quash the decision if it has: see, e.g., Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at paras. 74-75; London (City) v. Ayerswood Development Corp. (2002), 167 O.A.C. 120 (C.A.) at para. 10.

Analysis

Procedural Fairness

[21] The applicant’s main argument involves the lack of a hearing. He submits that the City should have held a hearing to determine the merits of his most recent permit application. He bases his argument on s. 3(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the decision of the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and a claim that he had a legitimate expectation of a hearing.

[22] None of these arguments has any merit. I will consider each of them in turn.

[23] First, with respect to the Statutory Powers Procedure Act argument, s. 3(1) of the Act provides:

3. (1) Subject to subsection (2), this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision.

[24] The Statutory Powers Procedure Act has no application to this case because nothing in the Parks By-law requires an opportunity for a hearing, nor is a hearing otherwise required by law. Section 3(1) provides no assistance to the applicant.

[25] Second, with respect to the argument based on Baker, undoubtedly the City’s decision denying the 2016 permit engages the common law duty of procedural fairness. It was an administrative decision made by a public authority that affected the applicant’s interests. However, the content of the duty of fairness is minimal in this context, having regard to the factors in Baker. The City’s procedure adequately met the purpose of participatory rights in the context of a permit decision involving the proper management and use of a City park. The record before us demonstrates that the City clearly communicated its concerns to the applicant and has given him numerous opportunities to address those concerns over several years. In particular, the applicant knew that in 2014, he had been issued a conditional permit, but that in the end the permit was not issued when it became apparent that the he would not follow the conditions laid out in the permit. No permit was issued in 2015, and the applicant was well aware of the obstacles he faced in obtaining a permit in 2016.

[26] With regard to the 2016 permit application, the applicant knew that he had to satisfy the City’s outstanding concerns, and had two formal opportunities to present his case, first by his written permit application and second by a meeting convened to discuss his application. He was given an adequate opportunity to demonstrate that the event’s long-standing health and safety issues could be remedied but was not able to satisfy those concerns. In fact, he never presented a proposal to the City to explain how he would overcome the problems of the past.

[27] Third, with respect to the argument that the City breached the applicant’s legitimate expectation of a hearing, Mr. Hussain has not identified any “promises or regular practices” to establish such an expectation. There is no evidence that the City holds hearings for these types of permit applications, nor is there any evidence that anyone promised him a hearing.

[28] As a result, there was no breach of the principles of procedural fairness articulated in Baker.

[29] In addition to his argument that he was denied procedural fairness because of the lack of a hearing, the applicant also complains that he was not given reasons for the refusal to issue him a permit, relying on the affidavit of Mr. Rahman concerning the meeting of November 10, 2015. As I have explained earlier in my reasons, I prefer the evidence of Ms. Hargreaves about what transpired at that meeting. Her evidence makes clear that the applicant was given a detailed account of why he was not being issued a permit. In view of the history of the matter, as I have explained, he could not have been in doubt about the reasons in any event.

Reasonable Apprehension of Bias

[30] The applicant’s argument that there existed a reasonable apprehension of bias in the making of the decision to refuse to issue a permit to him is based on his allegation that someone made reference to a “Superior Authority” during the November meeting, and on the involvement of Councillor Davis in this matter. According to the Applicant, the reference to a “Superior Authority” is evidence that the decision was made by someone who is not the decision-maker, and is an example of institutional bias. The applicant’s argument about Councillor Davis is that she had a personal vendetta against him, because she was working with another group to organize a different Canada Day event in Dentonia Park, and she influenced the City’s decision.

[31] I begin with the “Superior Authority” allegation. As I have explained, I do not accept the evidence of Mr. Rahman that the City officials present at the November meeting used these words. I do accept the evidence of Ms. Hargreaves that the applicant was told that the decision was made by senior management. However, even if someone did use the words “Superior Authority”, there is no evidence to support the suggestion that someone other than members of senior staff were involved in the making of the decision, far less that they were biased against the applicant, or were influenced by someone who was biased against him. The evidence is all to the contrary. The evidence strongly supports the view that this application was handled no differently than any other, and that no one outside of City staff was directing or even involved in the decision, and that bias towards the applicant played no role in the decision.

[32] The involvement of a City councillor at an earlier stage of the process does not strengthen the applicant’s argument. Because of the community impacts of park use, City councillors sometimes become involved in park permit matters when approached by permit applicants, community groups and residents for their help or intervention as elected representatives of the community. Some types of events, such as cultural events of the type put on by Mr. Hussain, tend to attract the support of politicians at all levels of government.

[33] The applicant’s allegation against Ms. Davis amounts to nothing more than a bald allegation, and lacks an air of reality. In a context where the City has tried to work with the applicant over several years to bring him into compliance with the law and the City’s guidelines, it cannot be said that a properly informed, right-minded person would conclude that the Councillor had a vendetta against him, or that she influenced the decision.

[34] Regardless, councillors do not issue or deny permits; City staff does. The evidence is clear that despite some political participation in the matter, the operational aspects of the permit process remained with City staff. In their assessment of the 2016 permit application, City staff took into account matters directly relevant to the proper administration and management of park use. The health, safety and other concerns that had arisen at Mr. Hussain's previous special events, and the efforts made by the City to bring him into compliance, are entirely appropriate considerations. There is no basis to conclude or even imagine that the attitude of a City councillor in any way influenced the outcome.

[35] The claim of a reasonable apprehension of bias is without merit.

Charter Violations

[36] In his notice of application for judicial review, the applicant asserts, without more, that the decision-makers violated ss. 2, 7, 15 and 24 of the Canadian Charter of Rights and Freedoms. In his factum, he quotes the language of ss. 2(c) (freedom of peaceful assembly), 7, 12, 15 and 24(1), but makes no argument about any of them. In oral argument, the applicant made reference only to s. 2(c). He simply asserted that his and his community’s fundamental right to assemble was denied by the City.

[37] I will comment only on the alleged violation of the right of assembly.

[38] The freedom of peaceful assembly guaranteed by s. 2(c) of the Charter is a fundamental freedom of great importance in a free and democratic society. It is a guarantee of access to and use of public spaces, including public parks, squares, sidewalks, roadways, bridges, and buildings around which public life unfolds.

[39] The importance of public places was explained by Lamer C.J. in Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, at p. 154:

... The very nature of the relationship existing between citizens and the elected government provides that the latter will own places for the citizens' benefit and use, unlike a private owner who benefits personally from the places he owns. The "quasi-fiduciary" nature of the government's right of ownership was indeed clearly set out by the U.S. Supreme Court in Hague v. Committee for Industrial Organization, supra, at pp. 515-16:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.

[40] However this important role of public space does not give citizens the unfettered right to use public parks as they see fit. In Abbotsford (City) v. Shantz, 2015 BCSC 1909, 392 D.L.R. (4th) 106, at para. 197, Hinkson C.J.S.C. explained:

Although public property is held in trust for the public, the right to access and use public spaces is not absolute. Governments may manage and regulate public spaces, provided that such regulation is reasonable and accords with constitutional requirements. Reasonableness must be assessed in light of the public purpose described.

[41] With respect to parks, he noted, at para. 198, that while park land is held for the pleasure, recreation or community use of all of a City's citizens, a City must be permitted to balance the needs of all of its parks’ users.

[42] It seems to me that this is precisely what Toronto seeks to accomplish through its system of issuing permits for special events in public parks. D. M. Brown J., as he then was, expressed the same view of the Toronto Parks By-law in Batty v. Toronto (City), 2011 ONSC 6862, 108 O.R. (3d) 571, where he stated, at para. 95:

When read as a whole the objective of the Parks By-law is quite clear and sensible - it is an attempt to balance, in a fair way, the different uses we wish to make of our public parks so, at the end of the day, we all get to enjoy them. The Parks By-law certainly contains restrictions, but ones with the evident purposes of enabling all to share a common resource and ensuring that the uses of the parks will have a minimal adverse impact on the quiet enjoyment of surrounding residential lands.

[43] The right of some citizens to use a park in one way must be balanced against the right of other citizens to use it another way. The right must also be balanced against public health and safety concerns, and expense to the larger community. In my view, the City exercised its responsibility in an entirely reasonable way in this case. After many unsuccessful attempts to work with the applicant to eliminate the serious health and safety problems his events created, the City determined that if they continued to issue him a permit, these problems would persist.

[44] Freedom of assembly simply does not include the right to use City parks without complying with reasonable regulations governing park use and without any regard to public health and safety. There is no merit to the applicant’s Charter claim.

Disposition

[45] The application is dismissed.

[46] On the agreement of the parties, we award the respondent costs fixed in the amount of $4,000 all-inclusive and payable forthwith.

Dambrot J.

R.J. Smith J.

C.Horkins J.

RELEASED: May 27, 2016

CITATION: Hussain v. Toronto (City), 2016 ONSC 3504

DIVISIONAL COURT FILE NO.: 647/15

DATE: 20160527

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DAMBROT, R.J. SMITH and C. HORKINS JJ.

B E T W E E N :

ALAMGIR HUSSAIN Applicant

– and –

THE CITY OF TORONTO Respondent

REASONS FOR JUDGMENT

DAMBROT J.

RELEASED: May 27, 2106