CITATION: Scott v. Toronto (City), 2021 ONSC 858

DIVISIONAL COURT FILE NO.: 580/19 DATE: 20210208

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Pierce, D.L. Corbett and Kristjanson JJ.

B E T W E E N:

DAVID SCOTT and DARIJA SCOTT

Applicants

• and -

CITY OF TORONTO

Respondent

COUNSEL:

Mr. Michael J. Paiva and Ms. Gwen Croser for the Applicants

Alison Barclay for the Respondent

HEARD by videoconference: Oct. 15, 2020

REASONS FOR DECISION

Kristjanson J.

Overview

[1] This is a judicial review of a June 13, 2017 decision of the Toronto and East York Community Council denying the applicants a front yard parking pad permit under Chapter 918 of the Toronto Municipal Code. City Council has delegated decision-making power over appeals about the licensing of front yard parking pads in certain municipal wards to Community Councils. Elected councillors of Toronto City Council serve on the Community Council.

[2] On the record before the Community Council, there were two reasons to refuse the permit: (i) the proposed parking pad is on the same side of the street as street permit parking, and (ii) the proposed parking pad is too close to a protected tree.

[3] Staff recommended against the requested permit for these reasons. These were reasonable grounds upon which the Community Council could reject the requested permit. The applicants also took the position that the parking permit was grandparented because of an abandoned 31-year-old permit application initiated by a prior owner. This argument was rejected reasonably by the Community Council. The process accorded to the applicants (including the absence of reasons) was consistent with the nature of the issue and the decision-maker, was consistent with usual practice, and was fair in all the circumstances. Therefore, for the following reasons, the application is dismissed.

Factual Background

The By-Law

[4] The parking pad by-law is set out in the Toronto Municipal Code, Chapter 918, Parking on Residential Front Yards and Boulevards. This consolidated by-law regulates front yard parking pads for certain City of Toronto wards.

[5] To build a front yard parking pad, applicants must obtain a licence. The General Manager of the City’s Transportation Services division must refuse to issue a licence for front yard parking if certain conditions apply: §918-20 D. This application concerns two of these conditions. The first condition prevents proposed front yard parking where on-street permit parking is authorized on the same side of the street: §918-8C(2). The second condition establishes a tree protection zone, the size of which varies based on the diameter of the tree and the distance to a proposed front yard parking pad: §918-12.

[6] Chapter 918 came into force in 2007 as a consolidation of earlier by-laws. §918-6 implements a grandparenting scheme for front yard parking pad licences that were issued or approved for issuance before 2007. The parties disagree whether the grandparenting scheme in §918-6 applies here. That section provides:

§ 918-6. Grandparenting

A. If, prior to the coming into force of this chapter, a front yard parking licence has been issued or was approved for issuance, the licence shall be governed by the regulations in effect at the time of issuance or approval of the licence as long [as] the conditions of approval at the time of issuance or approval continue to be complied with and any required fees are paid in accordance with Chapter 441, Fees and Charges.

[7] Where an application is received and the conditions of Chapter 918 are satisfied, Transportation Services will communicate an approval to the applicant by way of letter. The applicant is instructed to obtain a permit to construct the approved pad, and, once constructed, the City will inspect the pad to ensure its conformity with the originally approved proposal. After a successful inspection, the applicant must sign an agreement with the City and pay the required annual licensing fee. Only then will a parking pad licence be issued to the applicant.

[8] In this case, prior owners received preliminary approval for a parking pad in 1989. In the ensuing 31 years no permit for construction of a front yard parking pad was issued, no licence was issued, no agreement was signed, and no licensing fees were paid. The City considered the 31-year-old application abandoned and it had disposed of the file long ago.

Factual Background

[9] When the applicants purchased the property in June 2012, it had a front yard parking pad. This parking pad was unauthorized and had been installed between June 2009 and 2011. In October 2012, the City issued a by-law infraction for this unauthorized front yard parking pad.

[10] Three years after receiving the infraction notice, the applicants applied for a licence for front yard parking. The City denied the licence in June 2016 on the grounds that the distance between a tree and the proposed parking pad was inadequate. The refusal letter made no reference to the fact that there was on-street permit parking on the same side of the street as the proposed front yard parking pad. The applicants appealed the licence refusal to the Community Council in June 2016.

Procedural Background

[11] Community councils exercise powers delegated by City Council under sections 20(1) and 24(1) of the City of Toronto Act, 2006, S.O. 2006, c. 11 Sched. A. Under §918-21 A, when the City refuses to issue a licence for a front yard parking pad, an appeal lies to the local community council. As a part of the appeal process, §918-21A(4) provides that the General Manager who refused to approve the issuance of a front yard parking licence “shall prepare a report based on the appeal for consideration by the appropriate community council and for the hearing of deputations”. Here, the Staff Report prepared pursuant to §918-21A(4) recommended that the Community Council refuse to issue a front yard parking licence based on two conditions in §918: (1) authorized permit parking on the same side of the street as the property and (2) tree proximity to the proposed parking pad.

[12] The procedure at community council meetings is governed by Chapter 27 of the Toronto Municipal Code, Council Procedures. §27-4.1 provides that a member of the public has the right to participate in the decision-making process of the community council by making a public deputation. Public deputations are limited to five minutes by §27-4.5 C. After hearing all public presentations on a matter, the community council may immediately consider, debate, defer, or vote on a matter under §§27-4.7 F-G and I.

The Decision

[13] At the Community Council meeting the councillors received the Staff Report. One of the applicants, David Scott, made a five-minute oral deputation. Two neighbours made five-minute oral deputations opposing the applicants’ appeal. A fourth individual submitted a letter in favour of the applicants’ appeal, which was provided to the councillors with the Agenda.

[14] A majority of the Community Council members voted to deny the appeal, with three councillors voting in support of the appeal. As a result, the applicants’ appeal did not succeed and they were not granted a licence for a front yard parking pad. There are no written reasons of the decision, although the video of the Community Council meeting is in evidence, as is the record of written materials submitted to the Community Council.

Issues:

[15] This judicial review application raises the following issues:

(a) What is the record of the judicial review, and what fresh evidence, if any, should be admitted?

(b) Were the applicants denied procedural fairness at the Community Council?

(c) Was the Community Council decision to refuse the licence reasonable?

Jurisdiction

[16] This application is properly before this court pursuant to s.2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

Standard of Review

[17] The parties both argued correctly that the standard of review of substantive issues regarding the Community Council’s decision is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. On procedural fairness issues, however, it is not necessary to engage in a standard of review analysis. The question is whether the applicant was accorded procedural fairness, taking into account the five factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817.

Analysis

What is the record on judicial review?

[18] Generally, the record on judicial review is restricted to what was before the decision-maker: Bernard v. Canada Revenue Agency, 2015 FCA 263, para. 13. That is because this court’s function is to review the decision below, not to hear the case de novo.

[19] There are exceptions to the general rule. In this case, a relevant exception relates to background information, described by Stratas J.A. as “non-argumentative orienting statements that assist the reviewing court in understanding the history and nature of the case that was before the administrative decision-maker” (Bernard v. Canada Revenue Agency, 2015 FCA 263, para. 21). This may include affidavit evidence setting out a neutral summary of procedures, summarizing or identifying key evidence before the decision-maker below, and evidence that otherwise facilitates the court’s reviewing task and does not invade the administrative decision-maker’s role as fact-finder and merits-decider (Bernard, paras. 23 and 28). A second exception is affidavit evidence disclosing the complete absence of evidence on a material point. That is, not what is contained in the record, but what cannot be found in the record: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.).

[20] Another exception is for evidence relevant to natural justice, procedural fairness, improper purpose or fraud that is not contained in the tribunal’s record, and that could not have been raised before the decision-maker (Bernard, para. 25). If a party knew of the issue at the time, this should be on the record. If a party failed to object before the decision-maker, it generally cannot raise an objection for first time on judicial review (Bernard, paras. 26-30).

[21] Evidence within the general rule or its exceptions may be adduced by way of affidavit on the judicial review pursuant to Rule 68 of the Rules of Civil Procedure, RRO 1990, Reg 194. However, if a party seeks to adduce fresh evidence – evidence not before the decision-maker and not fitting within an exception to the general rule – then the party must bring a motion to admit fresh evidence. If a party improperly includes evidence in its affidavit, the other party should raise an objection or move to strike the evidence. Since the court must ensure that it adheres to its supervisory role on judicial review, even where no objection is made the court can raise the question whether evidence before it is admissible.

[22] The applicants rely on the affidavit of David Scott sworn May 7, 2018. The respondents object to the admissibility of most of this affidavit. Mr. Scott sets out at length the importance to him of obtaining a parking pad, his reliance on legal advice as to the availability of a parking pad based on grandparenting, his interpretation of various meetings with City officials prior to the Community Council meeting, his interpretation of City documents, his views on tree diameter evidence including an expert report not tendered at the Community Council meeting, and his views on disclosure including his freedom of information requests. Most of this information does not fall within an exception: it is information not before and not raised with Community Council, and is not properly part of the record on judicial review. Only the following paragraphs are admitted (with associated exhibits) on this application: paragraph 7, the last sentence of paragraph 8, paragraphs 25, 26, 38, 40, 70-71, 85, 95 and 96.

[23] The City relies on the affidavit of Ellen Devlin sworn July 25, 2019. Ms. Devlin is an Administrator for the Community Council, and an employee of the Toronto City Clerk’s Division. Her affidavit is admissible as background information, summarizing procedures governing Community Council meetings and identifying the record before Community Council in this case.

[24] The City also relies on the affidavit of Rebecca O sworn July 25, 2019. Ms. O is an employee of the City’s Transportation Services Division. Parts of her affidavit are background information, and parts are responsive to the David Scott affidavit. Ms. O’s affidavit, paragraphs 1-14, 21-25, and 34 (with associated exhibits) are admissible as background information. Other parts are responsive to issues raised by Mr. Scott but not raised before the Community Council, and are not admissible (15-20, 28-33, 35-38). Paragraph 39 deals with information about a tenant receiving an on-street parking permit after the Community Council meeting and is not admissible.

What level of procedural fairness was required?

[25] A decision-maker has a duty of procedural fairness when making a decision that is not legislative in nature that affects the rights, privileges or interests of an individual: Canada (Attorney General) v. Mavi, 2011 SCC 30, at para. 38. Here, the issue involved an individual privilege – that is, an exemption from the parking pad restrictions set out in Chapter 918. The duty of procedural fairness applies. Procedural fairness governs participatory rights, to ensure that administrative decisions are made using a fair procedure, appropriate to the decision being made and its statutory, institutional, and social context: Baker, para. 22

[26] The procedural protections and participatory rights required to meet the duty of fairness are assessed contextually, in accordance with the five Baker factors. As discussed below, these factors suggest that the content of the duty of fairness owed in this case is at the low end of the spectrum.

[27] The nature of the decision being made, and the process followed in making it: City councillors make a discretionary decision about whether something that would otherwise be prohibited by by-law should be allowed (a privilege). The councillors decide after reviewing staff reports, hearing from the party seeking the exemption, and hearing from members of the public making oral deputations or submitting written materials. Councillors are entitled to consider matters of general policy and the well-being and interests of their communities as a whole. Indeed, under s. 131 of the City of Toronto Act, 2006, councillors must in their role consider the well-being and interests of the City. Individual councillors may engage with their constituents in advance of the vote, as the applicants’ councillor did here. The process is polycentric, taking into account the public interest, and the process does not resemble judicial decision-making.

[28] The nature of the statutory scheme and the terms of the statute pursuant to which the body operates; This is a final decision, as there are no further appeals.

[29] The importance of the decision to the individual or individuals affected: This is a decision of relatively low importance, compared, for example, to threats to life, liberty, or fundamental dignity. This is not a revocation case; there is no loss of livelihood. The applicants purchased a property with an illegal parking pad and were seeking the exemption to enhance rentability of the property.

[30] The legitimate expectations of the person challenging the decision: Legitimate expectations go to process, not substantive outcomes. There is no evidence that the City made representations to the applicants about a procedure that would be followed to make the decision other than the procedures set out in the by-laws and Procedural Code. The applicants have not established that they had a legitimate expectation of higher participatory rights.

[31] The choices of procedure made by the agency itself and its institutional constraints: The City determined the procedure for front yard parking appeals by enacting Chapters 918 and 27. The process adopted by the City differs significantly from a judicial model, and deference is owed to the processes designed to balance fairness, public participation, and efficiency, including significant constraints on the time of elected councillors. At the June 2017 meeting, there were 142 agenda items.

[32] Based on a review of these factors, the applicants were entitled to a relatively low level of procedural fairness. The applicants were entitled to and received notice, disclosure of Staff’s recommendations, an opportunity to be heard in writing and orally, and to be present while the issue was discussed and during the vote of the Community Council. The applicants were informed of the process in advance and the process followed the usual practice for an appeal of this kind. I find that the duty of procedural fairness owed to the applicants in all the circumstances was met.

Staff Report Was Adequate

[33] The applicants submit that numerous deficiencies in the Staff Report led to procedural unfairness. They flag the failure of City Staff to summarize their grandparenting clause argument, and the failure of City Staff to reconcile and address tree diameter discrepancies. However, the applicants knew the case to be met and were provided the opportunity to address these issues before the Community Council, and earlier with City Staff.

[34] Before the appeal was argued, the applicants were informed that:

(a) an application for front yard parking at the property had been approved by the City almost three decades earlier but a licence was not pursued, and the City's file had been closed. Staff did not consider the Transition Provision applicable;

(b) two City measurements of the tree confirmed that the parking pad encroached into the tree protection zone, a reason for not licensing; and

(c) on-street parking was authorized on the same side of the street as the proposed parking pad and Chapter 918 prohibits licensing in this situation.

[35] The applicants had a copy of the Staff Report and knew that City Staff recommended that the Committee deny the licence on grounds (b) and (c). The applicants had an opportunity to, and did, make submissions on all three points at the Community Council.

[36] The applicants argue that City Staff had an obligation to summarize their grandparenting argument in the Staff Report, and rely on the doctrine of “legitimate expectations”, since §918-21A(4) requires that Staff prepare a report for Community Council “based on the appeal”. I do not agree that the doctrine of legitimate expectations required City Staff, who must also balance fairness and efficiency in the work that they do, to summarize all arguments or issues raised by a proponent in an appeal application. Staff were of the view that the grandparenting argument was clearly unmeritorious; there is no legitimate expectation that Staff spend time summarizing issues they consider to be devoid of merit. The applicants were free to, and did, raise the issue at Community Council. Mr. Scott dealt with the grandparenting issue in his deputation.

[37] Similarly, Staff did not have to summarize all contested tree measurements. The applicants made the argument about contested tree measurements, and the applicants’ councillor, who moved for approval of the parking pad, relied on the contested tree measurements in his remarks.

[38] Finally, the applicants argue that the Staff Report was false and misleading in that all street permits had been issued and there was no on-street parking available. However, the by-law does not require that permits be available; merely that permit parking is provided. To the extent that this fact was relevant to the appeal, the applicants were free to raise it before the Community Council, which can be taken to be familiar with the rate at which on-street permits may become available.

Adequate Opportunity to Make Submissions

[39] The applicant Mr. Scott made oral submissions and used the overhead projector to display documents during his oral presentation. The applicants argue they were not afforded an adequate opportunity to make written submissions. I do not agree. While the applicant attempted to establish that he called the City Clerk’s Office and was told he could not file written submissions, there is no specificity as to his evidence (date, time, person, whether he was within the agenda deadline) and that evidence was excluded. The City’s procedures clearly provide for written submissions on topics on the agenda. Section 27-17.1 C(6) provides that if the Clerk receives “Communications from the public related to a matter on the agenda”, before the agenda deadline, then the Clerk is to place them on the agenda for the meeting.

[40] The affidavit of Ellen Devlin, an Administrator for the Community Council employed by the City Clerk’s Division, confirmed that practice of the Clerk’s Office conforms to § 27-17.1 C(6). The Clerk’s Office endeavours to accept written materials relevant to agenda items if received in time given the deadline for agenda items. Of note, a letter sent by a neighbour was on the agenda and was reviewed by Community Council.

[41] The matter had already been adjourned twice at the applicants’ request; they could have sought a further adjournment to submit written materials if they had missed the agenda deadline. There is no evidence as to the content of the “written submissions” the applicant Scott wished to submit.

[42] In any event, Mr. Scott did not raise his alleged inability to file written submissions as an issue at the Community Council meeting, and thus the opportunity to object was waived.

[43] The applicants also argue that five minutes was insufficient to make the oral argument. As noted, this is the process adopted by City Council with respect to parking pad deputations, and based on the five Baker factors, the time limit does not breach procedural fairness in the circumstances.

No Disclosure Objection Raised at Community Council

[44] The applicants raise several alleged disclosure issues on this judicial review. For example, they state they were not provided with an internal City document which preceded a final inspection report. The inspection report was a decision document; there was no obligation on the City to provide internal or preliminary documents. The applicants also cite the failure of the City to reconstruct the 1989 parking pad licence application file. Whatever was in the file, the issue of grandparenting is a legal issue not dependent on the contents of the file. Other alleged disclosure deficiencies are raised, including those stemming from the Municipal Freedom of Information Act process.

[45] The procedures adopted by the City do not require the type of disclosure sought by the applicants, and I do not find that the duty of procedural fairness requires an obligation to disclose as asserted by the applicants.

[46] Finally, none of these disclosure issues were raised by Mr. Scott in his submissions at Community Council, and thus the opportunity to object was waived; disclosure issues cannot be raised for the first time on appeal.

No Duty to Provide Reasons

[47] The applicants argue that the Community Council had a duty to provide reasons as part of procedural fairness. I do not agree. Written reasons for decisions are not mandatory for all administrative decisions.

[48] The Community Council exercises powers delegated to it by City Council. It is comprised solely of elected Toronto city councillors. The City’s Procedure by-law does not require reasons. The larger context of the appeal, including the burden and impossibility of requiring elected representatives to provide reasons for the hundreds of items before a Community Council meeting, does not attract an obligation to provide written reasons. The Community Council’s decision-making process is not one that lends itself to producing a single set of reasons: Vavilov at para. 137

[49] A reviewing court must look to the record as a whole to understand the decision. Here, there is a clear rationale for the decision. Two councillors articulated their reasons. The Staff Report provided two bases for their recommendation, grounded in the regulatory scheme. Neighbours both opposed and supported the appeal. The Staff Report, the by-law, public deputations, submissions and the councillors’ duties informed their votes. The Court can discern a basis for the decision in the record. Procedural fairness does not require written reasons in the circumstances.

The Decision is Reasonable

[50] I agree with the City that the applicants’ application was not grandparented by the abandoned application made by a previous owner three decades previously. That permit was never acted upon, the requisite fees were never paid, and the City reasonably treated that application as abandoned long before the applicants applied for a permit.

[51] There were two reasons to deny the requested permit, each of which was a sufficient basis to deny the permit. Both bases were available on the record before the Community Council.

Conclusion

[52] The Community Council’s decision was reached in a procedurally fair manner and is reasonable. As a result, the application for judicial review is dismissed. The applicants are to pay the City costs in the agreed amount of $10,000.00, inclusive.

Kristjanson J.

I agree _______________________________

Pierce J.

I agree _______________________________

D.L. Corbett J.

Date of Release: February 8, 2021

CITATION: Scott v. Toronto (City), 2021 ONSC 858

DIVISIONAL COURT FILE NO: 580/19 DATE: 20210208

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Pierce, D.L. Corbett and Kristjanson JJ.

BETWEEN:

David Scott and Darija Scott Applicants

– and –

City of Toronto Respondent

REASONS FOR DECISION

Date of Release: February 8, 2021