Sorensen v. The County of Frontenac
CITATION: Sorensen v. The County of Frontenac, 2018 ONSC 3912
DIVISIONAL COURT FILE NO.: DC-17-117
DATE: 20180621
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
CONWAY, MYERS, and SHEARD JJ.
BETWEEN:
Stephen Sorensen, Terrence Botten, George Thomson, William Robertson
Applicants
– and –
The County of Frontenac
Respondent
Jeff G. Cowan, for the Applicants, Stephen Sorensen and Terrence Botten
Eric K. Gillespie, for the Applicants, George Thomson and William Robertson
Tony E. Fleming, for the Respondent
HEARD at Toronto: June 21, 2018
Oral Reasons for Judgment
Myers J. (Orally)
[1] This is an application for judicial review of the decision of the Council of the County of Frontenac (the “Council”) dated November 16, 2016. By bylaw enacted that day, the Council exempted agricultural vehicles from the restrictions on heavy vehicle use of the Howe Island Ferry (the “Ferry”) that had been imposed in 2003. The bylaw opened the Ferry to agricultural vehicles during rush hour.
[2] The legal authority of the Council to remove or ease a restriction that it imposed is not in dispute. However, the applicants submit that the Council “improperly fettered its discretion, exercised its discretion under a misapprehension of the law, or otherwise declined its jurisdiction by improperly determining such limited restrictions were in contravention of the Farming and Food Production Protection Act, 1998 (the "FFPPA") and illegal.” Alternatively, they argue that the removal of the restrictions for agricultural vehicles is void for vagueness.
[3] For the reasons that follow, the application is dismissed.
Jurisdiction
[4] The court has jurisdiction to hear an application for judicial review of a municipal bylaw under s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. We are satisfied that there are no material facts in dispute or any other basis to require that the matter proceed before the Ontario Superior Court of Justice under s. 273(1) of the Municipal Act, 2001, S.O. 2001, c. 25 or otherwise.
Standard of Review
[5] Not every municipal decision is legislative in nature. However, where, as here, a municipality passes a bylaw in the exercise of a legislative function, the Supreme Court of Canada requires that courts adopt a deferential, reasonableness standard of review. In Nanaimo (City) v Rascal Trucking Ltd, 2000 SCC 13, [2000] 1 SCR 342 at para 36, the Court held:
Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the "benevolent construction" ... Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives.
Facts
[6] The question of access to the Ferry by vehicles associated with the agriculture businesses in the County of Frontenac has been a source of friction between those businesses and residents for some time. Responding to public calls in 2003, the municipality (then operating as the Frontenac Management Board) enacted bylaw restrictions against heavy vehicles using the Ferry during rush hour (the “2003 Restrictions”).
[7] In 2007, a fresh lobbying effort to have the 2003 Restrictions repealed resulted in a slight easing of the 2003 Restrictions.
[8] In 2016, the agricultural businesses again opposed the 2003 Restrictions on the basis that they violated the provisions of the FFPPA.
[9] Section 6 of the FFPPA provides that "[n]o municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation." Under the statute, farmers who are affected by a municipal bylaw that restricts a normal farm practice may apply to the Normal Farm Practices Protection Board. That tribunal then has to determine whether a practice is a normal farm practice, and, if so, the tribunal can grant a farmer an exemption from a bylaw that restricts the practice.
[10] As a result of their review of the FFPPA issue with staff, legal counsel, and otherwise, the Mayor and another councilor were quoted as saying, in effect, that to the extent that the 2003 Restrictions limit farm vehicles, they are illegal. They said that the Council was required by law to change the bylaw restriction so as to comply with the FFPPA.
[11] Thereafter, at an in-camera meeting, the Council passed the November 16, 2016 bylaw to exempt from the 2003 Restrictions, “vehicles supporting agricultural business”.
[12] The applicants say that Council’s view of the law was incorrect. Under FFPPA, the Board may grant exemptions from an otherwise valid bylaw to allow farmers to engage in normal farm practices. If one or more exemptions were granted, that would not make the 2003 Restrictions illegal or require a wholesale removal of those restrictions in favour of agricultural vehicles generally. Moreover, they submit that the councilors fettered their broad legislative discretion by changing the 2003 Restrictions based on an incorrect view of the law.
Analysis
[13] As noted, the power of the Council to enact bylaws regulating the Ferry is not in issue. Subsections 11(3), 11(4), and item 2b of the table to section 11 of the Municipal Act, 2001, provide the Council with authority to pass such bylaws.
[14] In addition, under s. 272 of the Municipal Act, 2001, a court is prohibited from quashing or reviewing a bylaw on the basis that the bylaw is unreasonable. It is only where the municipality has purported to enact a bylaw that is illegal or has not passed the bylaw in good faith that a court may intervene. Friends of Lansdowne Inc. v Ottawa (City), 2012 ONCA 273, at para. 13. The applicants do not allege that the Council acted in bad faith when it passed the bylaw exemption in 2016.
[15] In light of these statutory provisions, even if the Council was incorrect in its determination that the 2003 Restrictions contravened the FFPPA, it remained within the Council’s jurisdiction to change its bylaw restrictions and to ease the restrictions that it had imposed in 2003. I see no basis in this case for the court to inquire into the correctness of the legal opinion which might have been considered by Council. The correctness of the opinion would not affect Council’s jurisdiction to ease the 2003 Restrictions that it had imposed.
[16] Further, the applicants have failed to establish that Council fettered its discretion so as to invalidate its action, regardless of which standard of review is applied. There is no evidence that Council arrived at the meeting having already made an irreversible decision. First, only two members of Council are quoted as making comments about the legality of the 2003 Restrictions. As the applicants themselves recognize, these comments may simply have been a public rationale for approving the exemption. In my view, these comments do not raise a legal issue. Second, the councilors were entitled to be guided by legal opinions obtained by staff. Third, the councilors retained the discretion to determine which factors to balance or weigh in arriving at their voting decision, including legal advice.
[17] Finally, while the phrase “vehicles supporting agricultural business” does not allow for the determination of which vehicles are impacted with absolute certainty, that is not the test. There is a high threshold to establish vagueness. Mussani v. College of Physicians and Surgeons of Ontario, 2004 48653 (ON CA) at para. 63. In my view, the words used are intelligible, with a meaning that is readily debatable before a court, as discussed in cases like Neighbourhoods of Windfield Limited Partnership v. Death, [2007] OJ No 5081 (ON SC) at para. 26,
[18] The application for judicial review is dismissed.
Conway J.
[19] I have endorsed the Joint Application Record, Vol. 1 of 2 as follows: “For reasons given orally today, the application is dismissed. On consent of counsel, the Applicants shall pay costs to the Respondent of $20,000 all-inclusive.”
__________________________ Myers J.
I agree
Conway J.
I agree
Sheard J.
Date of Reasons for Judgment: June 21, 2018
Date of Release: June 22, 2018
CITATION: Sorensen v. The County of Frontenac, 2018 ONSC 3912
DIVISIONAL COURT FILE NO.: DC-17-117
DATE: 20170621
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CONWAY, MYERS, and SHEARD JJ.
BETWEEN:
Stephen Sorensen, Terrence Botten, George Thomson, William Robertson
Applicants
– and –
The County of Frontenac
Respondent
ORAL REASONS FOR JUDGMENT
MYERS J.
Date of Reasons for Judgment: June 21, 2018
Date of Release: June 22, 2018