CITATION: Foster v. The City of Oshawa, 2020 ONSC 681
DIVISIONAL COURT FILE NO.: DC 19-1164
DATE: 20200130
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sheard, Ryan Bell, Favreau JJ.
BETWEEN:
Ronald Foster Applicant
– and –
The City of Oshawa Respondent
William C. McDowell and Derek Knoke for the Applicant
Chris Barnett and Alexis Beale for the Respondent
HEARD at Oshawa: January 30, 2020
BY THE COURT
[1] On this application for judicial review, Ronald Foster seeks i) an order quashing Resolution 404 passed by the Council of the City of Oshawa, and ii) an order “expunging” the report of George Rust-D’Eye dated August 23, 2013 (the “Investigator’s Report”) from the Minutes of Council. Mr. Foster was the Auditor General for the City from September 5, 2006 to September 6, 2013. The Investigator’s Report arose from an investigation ordered by Council following allegations made by Mr. Foster in relation to a 2013 purchase of land by the City.
[2] At the outset of the hearing, we asked counsel to make submissions on the issue of delay. After hearing submissions and considering the matter, we advised the parties that the application was dismissed for delay with written reasons to follow. These are our reasons.
[3] The Investigator’s Report was received by Council on September 3, 2013. Resolution 404 was passed by Council the same day. The notice of application for judicial review was issued on April 24, 2019.
[4] As recently held by this Court in Nahirney v. Human Rights Tribunal of Ontario, 2019 ONSC 5501 (Div. Ct.), at para. 5, “judicial review is a discretionary and equitable remedy.” While there are no prescribed deadlines for bringing an application for judicial review, a delay of more than six months in commencing an application and/or twelve months in perfecting the application can justify dismissing the application on the basis of delay. In deciding whether to dismiss an application for delay, the Court considers i) the length of the delay, ii) the explanation for the delay, and iii) whether the delay will cause prejudice to the respondent (1736095 Ontario Ltd. v. Waterloo (City), 2015 ONSC 6541 (Div. Ct.), at paras. 29-30).
Length of the delay
[5] This application for judicial review was commenced in excess of five years and seven months after the passage of Resolution 404, which is well beyond the six month presumptive deadline established by the Court.
Explanation for the delay
[6] Mr. Foster claims that his delay was caused by settlement negotiations and the recent disclosure of documents following freedom of information requests. In addition, he claims that the ongoing harm to his reputation justifies the late commencement of his application.
[7] In our view, these are not reasonable explanations for the delay.
[8] Mr. Foster admits that he first attempted to settle his dispute with the City in September 2013. He made further settlement attempts in October 2014, September 2016, and June 2017. The negotiations were not successful, a fact acknowledged by Mr. Foster.
[9] Even if we were to accept that settlement discussions may serve as a reasonable explanation for delay in bringing an application for judicial review, this is not a situation where there were ongoing negotiations or discussions. There was no explanation for the 22 month delay between Mr. Foster’s last attempt to settle in June 2017 and the commencement of the application in April 2019.
[10] In addition, the timing of the City’s disclosure of records in March 2019 in response to the freedom of information requests does not provide a reasonable explanation for the delay. The freedom of information requests were not made by Mr. Foster and there was no evidence that any of the documents disclosed were necessary or a precondition to the commencement of the application. Notably, the concerns Mr. Foster raised on this application were contained in his September 2013 rebuttal report to the Investigator’s Report.
[11] Counsel for Mr. Foster submitted that his client’s ongoing reputation is at issue and that we should therefore exercise our discretion to extend the presumptive six month time limit. We do not consider this a reasonable justification for the delay because the Record shows that Mr. Foster was aware of the impact of the Investigator’s Report on his reputation as of September 2013.
Prejudice to the City
[12] Given the length of the delay and the lack of a satisfactory explanation, prejudice to the City can be presumed (Khaiter v. Ontario Labour Relations Board, 2013 ONSC 791 (Div. Ct.), at para. 15).
[13] In any event, in this case, we are satisfied that the City would be prejudiced if the application were granted. Section 273(5) of the Municipal Act, 2001, S.O. 2001, c. 25, provides that an application to quash a by-law (or a resolution) must be brought within one year after the passing of the by-law. There is a clear public interest in ensuring that challenges to by-laws and resolutions are pursued in a timely manner. The failure to do so would undermine the legitimacy of council decisions, especially in cases such as this, where the resolution has already been acted upon.
[14] In submissions, Mr. Foster’s counsel suggested that, instead of quashing Resolution 404, the Court could grant two declarations: i) that the Investigator’s Report was flawed; and ii) that Mr. Foster was treated unfairly. This relief was not requested in the notice of application or addressed in the applicant’s factum. In any event, this change in position does not alter our finding with respect to the length of delay and the lack of reasonable explanation for it.
Conclusion
[15] It is for these reasons that we dismissed the application for judicial review for delay. At the conclusion of the hearing, we were advised that the parties agreed the applicant is to pay the respondent partial indemnity costs in the all inclusive amount of $75,000.
___________________________ Sheard J.
Ryan Bell J.
Favreau J.
Date of Release: January 30, 2020
CITATION: Foster v. The City of Oshawa, 2020 ONSC 681
DIVISIONAL COURT FILE NO.: DC 19-1164
DATE: 20200130
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sheard, Ryan Bell, Favreau JJ.
BETWEEN:
Ronald Foster Applicant
– and –
The City of Oshawa Respondent
REASONS FOR DECISION
THE COURT
Date of Release: January 30, 2020