McLeod v. City of Brantford, 2018 ONSC 943
CITATION: McLeod v. City of Brantford, 2018 ONSC 943
DIVISIONAL COURT FILE NO.: DC-17-890-00JR (Hamilton)
DATE: 2018-02-09
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MATHESON, GLUSTEIN and DIAMOND JJ.
BETWEEN:
John Nicholas McLeod Appellant
– and –
City of Brantford Respondent
Self-Represented Jorge Pineda, Counsel for the Respondent
HEARD at Hamilton: February 7, 2018
GLUSTEIN J. (ORALLY):
[1] The application arises out of the removal and arrest of the applicant from the City of Brantford bus station for distributing pamphlets while holding a 3 x 4 foot sign with two pictures of Falun Gong practitioners tortured or killed by Chinese authorities.
[2] The applicant was removed after staff employees at the bus station contacted the police. He was arrested under sections 2(1) and 9(1) of the Trespass to Property Act, R.S.O. 1990, c. T. 21 (the “TPA”).
[3] The applicant seeks the following relief (quoted verbatim):
a. A declaration that the decision of the City of Brantford to direct the applicant to leave the Brantford Bus Terminal infringes section 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) and cannot be saved under section 1;
b. An Order quashing the decision of the City;
c. A declaration that the decision of the City regarding the applicant sharing his message at the station must be consistent with the Charter.
[4] The City of Brantford appeared at the hearing but takes no position, indicating that they see no practical effect to the application.
[5] At the outset of the hearing, the court raised issues relating to (i) its jurisdiction to hear the declaratory relief sought by the applicant, and (ii) whether the remaining relief to “quash” the decision is moot.
[6] I address those issues in these reasons.
[7] I first address the court’s jurisdiction with respect to the declaratory relief sought at paragraphs (a) and (c) of the notice of application.
[8] In those paragraphs, the applicant seeks (i) a declaration that the “decision” of the City to “direct the applicant to leave” the terminal was contrary to section 2(b) of the Charter and (ii) a declaration that “the decision of the city regarding the applicant sharing his message at the Station must be consistent with the Charter”.
[9] However, declaratory relief can only be sought on judicial review under section 2(1)2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”) “in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power”.
[10] A statutory power under section 1 of the JRPA is defined to include “a statutory power of decision”. No other power or right under a statute is at issue in this application.
[11] However, a statutory power of decision requires that the legislation expressly assign a decision-making power. The JRPA definition requires that the power to make the decision be conferred “by or under a statute”. The legislation must authorize the decision-maker to make the decision in question. It is this effecting of the will of the legislature by the decision-maker that gives a sufficient public character to this decision to warrant judicial review.
[12] There must be a specific power or right to make the very decision in issue.
[13] The only legislation at issue on the present application is the TPA, as the police charged the applicant under this legislation. Under the TPA, there is no “decision-maker” authorized to make a “decision”.
[14] In Bracken v. Fort Erie (Town), 2017 ONCA 668, the City submitted that it had the authority under the TPA to issue a trespass notice against the applicant protester. Miller J.A. rejected that position and held (at paragraph 70):
Neither does the authority to exclude others from property come from the Trespass to Property Act, R.S.O. 1990, c. T.21, which does not set out the preconditions for its use. The authority to invoke the Act must come from other legal sources, such as the right to exclude others that is inherent in the status of an occupier in the common law of property. That is, the Act does not create any substantive property rights, but functions as an enforcement mechanism for rights that come from other sources: see Batty v. Toronto (City), 2011 ONSC 6862, 108 O.R. (3d) 571, at paragraphs 81-82; and R. v. S.A., 2014 ABCA 191, 312 C.C.C. (3d) 383, at paragraphs 277-278.
[15] Therefore, there is no statutory power of decision raised by the alleged conduct and, as such, the declaratory relief sought under section 2(1)2 of the JRPA is not available.
[16] Even if the application to quash could be heard, it would be moot and the court ought not exercise its discretion to hear the matter.
[17] In Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342 (“Borowski”), the Court stated that the court would decline to decide the case “when the decision of the court will have no practical effect on such rights”. Sopinka J. held (at paragraph 15):
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.
[18] The Court then set out a two-part test to assess whether a court should hear the matter. Sopinka J. held (Borowski, at paragraph 16):
The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.
[19] In exercising the discretion to hear a moot case, the court should bear in mind the three basic rationales for the mootness doctrine: the absence of an adversarial relationship, the need to promote judicial economy, and the need for the court to demonstrate an awareness of its proper law-making function. In Borowski, the Supreme Court also considered whether it was in the public interest to deal with the merits in order to settle the state of the law and whether the case was one evasive of review in the courts (Borowski, at paragraphs 31-41).
[20] The applicant submits that even though the charges against him were withdrawn, he has no assurances that his potential re-attendance at the property would not result in similar charges. While declaratory relief may be of some assistance, a successful application to quash, even if there was a decision, would not give him the assurances he seeks and may be limited to the circumstances on that day.
[21] Consequently, the application seeking this particular relief to quash is moot.
[22] Nor would we be prepared to exercise our discretion to hear a moot case, because the applicant has a remedy to challenge the conduct of the City employees. In his notice of application, the applicant seeks relief under Rule 14.05 of the Rules of Civil Procedure, RRO 1990, Reg. 194, which provides jurisdiction to a judge under Rule 14.05(3)(g.1) for a remedy under the Charter. Also, as I discuss above, the declaratory relief that is at the heart of his application cannot be obtained before this court. A Rule 14.05(3)(g.1) application would allow the courts to address the application of the Charter to the impugned conduct.
[23] In Bracken, Miller J.A. held that the issue before the court as to whether the trespass notice under the TPA breached the applicant’s Charter rights was moot at the time of the application, since it had expired (Bracken, at paragraph 23). In Bracken, the court held that the application judge properly exercised her discretion to hear it “particularly since the conflict was likely to recur given the relationship between the parties” (Bracken, at paragraph 23).
[24] In the present application, there is no such evidence. Further, as the dispute could only be resolved by a declaration of unconstitutionality, which cannot be provided by the court, the need to promote judicial economy, and the need for the court to demonstrate an awareness of its proper law-making function do not support the court’s exercise of its discretion to hear a moot matter.
[25] Consequently, even if the court could hear the certiorari relief sought, it is moot and the court should not exercise its discretion to hear it.
[26] We appreciate the able submissions of the applicant, who has confirmed to us that should we conclude he is in the wrong court, then he requests that it be transferred to the correct court.
[27] Under section 110 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, this Court has the power to transfer this matter to the Superior Court for the declaratory relief sought. The applicant can have the constitutionality of the impugned conduct determined by the court, and, as such, we transfer it to the Superior Court of Justice as an application under Rule 14.05(3)(g.1).
MATHESON J. ENDORSEMENT:
[28] The court raised issues addressed as preliminary issues regarding jurisdiction and mootness. For reasons given orally, we transfer this application to the Superior Court in Brantford under section 110 of the Courts of Justice Act with respect to the claimed declaratory relief only. The other claimed relief to quash is moot.
Glustein J.
I agree
Matheson J.
I agree
Diamond J.
Date of Reasons for Judgment: February 7, 2018 Date of Release: February 9, 2018
CITATION: McLeod v. City of Brantford, 2018 ONSC 943
DIVISIONAL COURT FILE NO.: DC-17-890-00JR (Hamilton)
DATE: 2018-02-09
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MATHESON, GLUSTEIN and DIAMOND JJ.
BETWEEN:
John Nicholas McLeod Appellant
– and –
City of Brantford Respondent
ORAL REASONS FOR JUDGMENT
Glustein J.
Date of Reasons for Judgment: February 7, 2018 Date of Release: February 9, 2018