Danbrook v. Georgina (Town of), 2023 ONSC 1201
CITATION: Danbrook v. Georgina (Town of), 2023 ONSC 1201
DIVISIONAL COURT FILE NO.: 22-1317 (Oshawa)
DATE: 20230222
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lococo, O’Brien and Hooper JJ.
BETWEEN:
Timothy Patrick Danbrook
Colin Brown, for the Applicant
Applicant
– and –
The Corporation of the Town of Georgina
John R. Hart and Kacie Layton, for the Respondent
Respondent
HEARD: January 25, 2023, at Oshawa by video conference:
R.A. Lococo J.
I. Introduction
[1] The applicant Timothy Patrick Danbrook brings an application for judicial review. The application arises from a dispute between the applicant and the respondent Corporation of the Town of Georgina, relating to a process adopted by the Town Council (referred to as the “Lake Drive Shoreline Jurisdiction Action Plan” or the “Lake Drive Action Plan”). That process was intended to address issues relating to the ownership and use of waterfront properties along Lake Drive in Georgina.
[2] Following counsel’s submissions at the application hearing, the parties were advised that the application was being dismissed, with written reasons to follow. After oral submissions on costs, the court reserved its decision on that issue.
[3] These Reasons for Judgment explain the court’s decision on the application and address the issue of costs.
II. Factual background
[4] A significant number of property owners have cottages along Lake Drive, a municipal road in the Town of Georgina. Portions of Lake Drive run adjacent to Lake Simcoe, between the shoreline and the cottages. Many of the cottage owners have docks, boathouses or other structures on the lake side of the road, across from their cottages. Historically, the Town has issued building permits to cottage owners relating to the building and maintenance of structures on the lake side of the road. In many cases, the ownership of the land on the road’s lake side is the subject of dispute between the Town and cottage owner.
[5] The applicant owns a cottage on Lake Drive, across the road from the shoreline. He claims to represent the interests of himself and eight other cottage owners (described as “indirect waterfront property owners”) who are trying to obtain building permits relating to structures on waterfront property across the road from their cottages.
[6] As described further below, the applicant says that following Town Counsel’s adoption of the Lake Drive Shoreline Jurisdiction Action Plan, the Town has treated cottage owners unfairly by, among other things, (i) unilaterally defining the boundaries of the road allowance to assert ownership over the area between Lake Road and the shoreline, and (ii) declining to grant building permits unless the cottage owner is able to prove their ownership of the land on which the structure (or proposed structure) is situated. As a result, the cottage owners are unable to build new structures or properly maintain existing ones. The applicant says that the ownership issue raised in this judicial review application potentially impacts over 400 properties along Lake Drive.
[7] The parties agree that the ownership issue relating to the waterfront properties dates from 1835, when the Lake Drive road allowance was created. The travelled portion of the road allowance generally does not extend to the water’s edge. The Town claims ownership of the property on the lake side of Lake Drive beyond the travelled portion of the road to the water’s edge, as part of the road allowance. Many cottage owners claim ownership of (or the exclusive right to use) segments of property across from their cottages.
[8] A serious attempt was made to address the issue of ownership and use of waterfront properties in the late 1970s, when Town staff and legal representatives engaged with cottage owners and their legal representatives relating to a proposed Town by-law to rezone waterfront properties to open space. There was similar engagement between the Town and property owners in the early 1990s, at which time both sides obtained legal opinions relating to the ownership issue. In both instances, the immediate issues (relating to open space policies and the Town’s maintenance of the road allowance) were resolved, without settling the ownership issue.
[9] In 2015, the Town commenced a renewed attempt to develop a process to address issues related to the ownership and use of the waterfront properties. At a Town Council meeting on July 14, 2015, consideration was given to the use of “encroachment agreements” between the Town and cottage owners to address the latter’s entitlement to use of waterfront property across from their cottages. At that meeting, the Town Counsel established the Lake Drive Shoreline Jurisdiction Ad Hoc Committee, the members of which included residents and Town Council members. As set out in the Ad Hoc Committee’s Terms of Reference, its purpose was to “[p]rovide information and assistance in the drafting of a comprehensive policy for submission to Council with respect to the use of Town road allowance in the area of Lake Drive North and the East shoreline.” The Ad Hoc Committee had no decision-making authority.
[10] Under the Terms of Reference, the Ad Hoc Committee was charged with the task of preparing a “[d]raft formal policy, for recommendation to Council, pertaining to the acceptable use of the Town road allowance” along the Lake Drive shoreline. The Terms of Reference also included a nine-point list of matters to be addressed in the draft policy, including ensuring that the draft policy:
a. Provides for the continued exclusive use of the road allowance abutting the Lake Simcoe shoreline by indirect waterfront property owners;
b. Establishes standards for the reasonable use of, maintenance of, and improvements on the road allowance;
c. Examines the limits of the road allowance; and
d. Examines options for formalizing the use of the road allowance by the indirect waterfront property owners.
[11] The Ad Hoc Committee met a number of times in 2016 and early 2017. The Town’s solicitor attended committee meetings.
[12] At a Town Council meeting on May 2, 2017, the councillors considered a memorandum from the Ad Hoc Committee, which outlined recommended policies relating to the acquisition and the permitted use of property on the lake side of Lake Drive. Town Council resolved to receive the report and directed Town staff “to report back to Council with a work flow that would establish what reports would be expected and when, and to begin the process of various reports required for the consideration of policies respecting a Lake Drive Action Plan and permitted uses of qualifying lands.”[^1]
[13] As Town Council requested at their May 2017 meeting, a report from Town staff was presented to Town Council at the Council meeting on July 2, 2017, which included a workflow chart. At that meeting, Town Council endorsed the process set out in the workflow chart, subsequently referred to as the Lake Drive Shoreline Jurisdiction Action Plan or the Lake Drive Action Plan.
[14] The process set out in the Lake Drive Action Plan consisted of 14 policy and operational steps to be taken by Council and Town staff to address issues relating to ownership and use of properties on the lake side of Lake Drive. The initial step was for Town Council to determine whether it wanted to pursue (i) potential divestiture (sale or lease) of lakeside properties to “eligible property owners”[^2] or others determined by Town Council (and if so, the means of doing so), or (ii) a Town policy as to the permitted use of lakeside properties, including the means of addressing title disputes and Town liability issues. One of the operational steps in the workflow chart was to establish a public consultation process to receive public input related to the potential sale or lease of lakeside lands. The workflow chart also included a further five-step process for dealing with landowners if the Town decided to divest itself of lakeside lands, which included offering eligible property owners the opportunity to buy or lease Town-owned lakeside land.
[15] At a Town Council meeting on August 9, 2017, Council received a report from Town staff, recommending that the Town pursue potential divestiture of lakeside lands. Town Council subsequently directed Town staff to continue to investigate the potential disposition of the lakeside lands and pursue the additional steps in the Lake Drive Action Plan.
[16] From that time until July 2019, Town Council received four additional reports from Town staff relating to the Lake Drive Action Plan and was at the point of engaging in the public consultation process contemplated by the plan. At a Town Council meeting on July 24, 2019, in the context of a discussion relating to the process for divesture of lakeside properties, a Town councillor asked the Town’s solicitor whether he was sure that all the lakeside properties were owned by the Town. The Town solicitor’s answer was no, but he went on to say that he was quite confident the Town owned the vast majority of the properties, agreeing that it would be 90 per cent or more of them. The Town’s solicitor also provided advice about the steps the Town could take if residents who had the opportunity to purchase or lease Town property decided not to do so. He stated that those steps could include putting up fences and serving and enforcing trespass notices. He also indicated that the latter approach was not the preferred one (referring to it as “probably [option] Z”, rather than “option one”) but was an approach that could be considered “if the appropriate time comes.”
[17] The applicant says that since the Town Council meeting on July 24, 2019, Town staff has declined to entertain permit applications regarding lakeside properties where the title is disputed, despite previously granting permits for structures on such properties.
[18] In November 2020, the applicant and seven other residents commenced a Small Claims Court action against the Town and the Town’s solicitor, citing the Town solicitor’s responses at the Town Council meeting referred to above. That action was dismissed on consent shortly before the commencement of the judicial review application in February 2021.
III. Parties’ positions
[19] As stated in the applicant’s factum, the applicant seeks judicial review of the Town’s “process of dealing with indirect waterfront property owners, both in issuing permits and planning for the future”, which the applicant says is unfair and beyond the Town’s authority.
[20] Noting that the boundary between the Town’s road allowance and owners’ lands has been the subject of legal debate, the applicant submits that the long-established practice and understanding has been that the indirect waterfront property owners enjoy exclusive use of the lake side of the road allowance. The applicant says that the process the Town has adopted and its subsequent conduct is inconsistent with that practice and understanding, unfairly depriving the indirect waterfront property owners of the properties’ use that they previously enjoyed.
[21] The applicant also submits that the Town does not have the authority to determine the boundaries of the road allowance without going through proper legal process by depositing a Reference Plan (“R-Plan”) on title or following the procedure in s. 3 the Boundaries Act, R.S.O. 1990, c. B.10, by making an application to the Director of Titles under the Land Titles Act, R.S.O. 1990, c. L.5. Given the potential conflict between provincial laws and the Town’s unilateral determination of the road allowance’s boundaries, the applicant submits that the standard of review that applies to the Town’s actions is correctness.
[22] As stated in the applicant’s supplementary factum, the applicant seeks the following relief: (a) a declaration that the Town is acting ultra vires or in bad faith with respect to its conduct relating to the indirect waterfront property owners and their applications for permits; (b) a direction that the Town consider applications for repair permits from indirect waterfront property owners under the criteria set out in the Building Code Act, 1992, S.O 1992, c. 23, and not to dismiss the applications without consideration on the basis of failure to prove title; (c) an injunction or declaration to prevent the Town from tearing down the lakeside structures of indirect waterfront property owners who do not cooperate with the Town process without first going through proper legal process to establish the boundaries of the road allowance; and (d) costs.
[23] In his submissions, the applicant raises the following issues:
a. Are the Town’s actions subject to judicial review? The applicant says that as a creature of statute exercising delegated powers, the Town’s actions are subject to judicial review pursuant to s. 2(1) of the Judicial Review Procedure Act, R.S.O 1990, c. J.1 (the “JRPA”). The applicant also submits that the Town’s conduct is subject to a duty of procedural fairness that applies in circumstances in which the Town is not exercising a judicial or quasi-judicial function, relying on the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-29.
b. Does the Town have the unilateral right to determine ownership of the indirect waterfront properties? The applicant submits that the Town does not have this right; the Town’s attempt to determine ownership unilaterally is ultra vires. The procedure that the Town ought to follow to define the road allowance’s boundaries is to deposit a R-Plan on title or make an application under the Boundaries Act to the Director of Land Titles.
c. Has the Town been fair in its processes? The applicant submits that the Town has breached its duty of procedural fairness by refusing to grant building permits to indirect waterfront property owners with disputed ownership rights after receiving the Town solicitor’s ill-considered advice relating to the Town’s ownership of waterfront properties.
d. Is a prohibition order or injunction against the Town in order? The applicant submits that until the Town has properly established the boundaries of its road allowance by legal process, the mandatory relief that the applicant has requested should be granted, applying the three-part test in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, at p. 334 (a serious issue to be tried, irreparable harm, and balance of convenience).
[24] The Town submits that the applicant’s judicial review application should be dismissed as being beyond the jurisdiction of the Divisional Court under s. 2(1) of the JRPA. The Town argues that the Town Council’s adoption of the process set out in the Lake Drive Action Plan to address the ownership and permitted use of lakeside properties (and the Town’s conduct in relation to that process) does not constitute a decision relating to the exercise of statutory power or other conduct that is subject to review under that statute. The Town’s ultimate course of action relating to the matters in issue remains a work in progress. To date, no definitive determination has been made that is subject to judicial review.
[25] While the Town’s submission on the jurisdiction issue if accepted would be dispositive of the application, the Town also addresses the other issues the applicant raises, as follows:
a. The Town denies taking the position that it can unilaterally determine the ownership of indirect waterfront properties. Like the indirect waterfront property owners, the Town is entitled to advance its position relating to the ownership of those properties. Although entitled to do so, neither a possible land claimant nor the Town has commenced proceedings to seek a court order to determine an ownership dispute by way of an action or an application under r. 14.05(3)(e) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, nor have they brought an application to the Director of Titles to determine the issue pursuant to the Boundaries Act.
b. The Town denies that it has been unfair to the indirect waterfront property owners in its processes. There was no unfairness to them in the Ad Hoc Committee process (that committee having no decision-making power), the Lake Drive Action Plan process (which remains a work in process, without a definitive Town Council decision) or the building permit process. The indirect waterfront property owners’ right to bring legal proceedings to determine property ownership issues has not been affected. In order to apply for a building permit, the consent of the property owner is required. If the chief building official refuses to issue a permit based on the applying party’s failure to establish property ownership, the applying party has a time-limited right of appeal to the Superior Court of Justice to resolve the issue: Building Code Act, 1992, s. 25.
c. While conceding the judicial review application raises a serious issue to be tried, the Town disputes that the evidence supports granting the mandatory relief the applicant requests. While the Town’s position is that the waterfront properties along Lake Drive are included in the Town’s road allowance, the Town recognizes that the ownership issue is unresolved. Town Council has not authorized the exclusion of indirect waterfront property owners from use of those properties. The court should not entertain an order restraining the Town from doing something it is not doing and has no present intention of doing. An issue relating to property ownership that arises in a building permit application may be resolved by legal process under the Build Code Act, 1992. Any property owner may also apply under the Boundaries Act to the Director of Titles to determine the location of a disputed boundary.[^3] There is no evidence that any affected party has made such an application has been made and no basis for mandating the Town to do so.
IV. Analysis and conclusion
[26] As explained further below, I have concluded that the process set out in the Lake Drive Action Plan (and the Town’s actions in relation to that process) does not constitute a decision relating to the exercise of statutory power or other conduct that give rise to a remedy under that the JRPA. Accordingly, the applicant’s judicial review application should be dismissed.
[27] On an application for judicial review, the Divisional Court may by order grant any relief that the applicant would be entitled to in proceedings for one or more of:
a. an order in the nature of mandamus, prohibition or certiorari (JRPA, s. 2(1)1); and
b. a declaration or an injunction in relation to the exercise, refusal to exercise, or proposed or purported exercise of a statutory power (JRPA, s. 2(1)2).
[28] The term “statutory power” includes a power or right conferred by or under a statute: (a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation; or (b) to exercise a statutory power of decision: JRPA, s. 1.
[29] The term “statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,
a. the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
b. the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not: JRPA, s. 1.
[30] Given the permissive language in the opening words of s. 2(1) (“the court may … by order grant any relief”), the exercise of the court’s jurisdiction on a judicial review application is discretionary. The court will not exercise its discretion to grant judicial review if there is another more appropriate process available for an applicant: see Sui v. Ontario, 2022 ONSC 5600 (Div. Ct.), at para. 5, citing Michalski v. McMaster University, 2022 ONSC 2625 (Div. Ct), at paras. 64, 73.
[31] Addressing first the court’s authority under s. 2(1)2, the court has the authority under that provision to grant any relief that the applicant would be entitled to in proceedings for a declaration or injunction relating to the exercise of a statutory power. The relief the applicant seeks includes a declaration and injunction. However, I am not satisfied that the relief he seeks relates to the exercise of a statutory power.
[32] To date, what Georgina’s Town Council has authorized is a process for addressing the outstanding issues relating to ownership and use of the waterfront properties (referred to as the Lake Drive Shoreline Jurisdiction Action Plan) and directed Town staff to take the steps contemplated by that plan. As the Town noted, that process remains a work in process. The evidence indicates that Town Council has taken no definitive action that constitutes (a) a bylaw or other direction having the force of subordinate legislation, or (b) the exercise of a statutory power of decision.
[33] While the Town recognizes that the issue of ownership of the lakeside properties is the subject of legal debate, the Town has indicated its position (as it is entitled to do) that the lakeside properties fall within the Town’s road allowance. Contrary to the applicant’s assertion, the Town has not made a unilateral determination that it owns the lakeside properties or that the indirect property owners are no longer permitted to use those properties. The applicant and other indirect waterfront property owners are free to challenge the Town’s position in the context of a building permit application, which includes a right of appeal to the Superior Court if the permit is denied. As previously noted, the ownership issue may also be addressed in a Superior Court application or action or in an application under the Boundaries Act to the Director of Land Titles. Although entitled to do so, neither the indirect property owners nor the Town has brought such proceedings.
[34] Turning now to the court’s authority under s. 2(1)1, the court has the authority under that provision to grant any relief that the applicant would be entitled to in proceedings for an order in nature of mandamus, prohibition or certiorari. For relief to be granted under s. 2(1)1 (unlike under s. 2(1)2), there is no requirement that the matter under review relate to the exercise of a statutory power (which includes the power or right to exercise a statutory power of decision): McDonald v. Anishinabek Police Service (2006), 2006 37598 (ON SCDC), 83 O.R. (3d) 132 (Div. Ct.), at para. 53; Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481, at para. 29. The availability of the prerogative remedies mentioned in s. 2(1)1 is instead determined through consideration of common law principles.
[35] As with s. 2(1)2, the exercise of the court’s jurisdiction under s. 2(1)1 is discretionary. The JRPA continues the “longstanding discretionary nature” of those prerogative remedies: see Michalski, at para. 64.
[36] In Setia, at para. 20, the court describes those remedies as follows:
The prerogative remedies brought together by the JRPA (mandamus, prohibition and certiorari) constitute the mechanisms that have been used by the courts to ensure that public decision-makers observe the principles and rules of public or administrative law by which they must function. While the notion of public law defies full and precise definition, the courts use the prerogative remedies to supervise persons and bodies that derive their powers from statute in their performance of functions of a public or governmental nature.
[37] In Setia, at para. 33, the court goes on to state that the “assessment of whether a particular decision is subject to public law and its remedies requires a careful consideration of the relevant circumstances of the particular case informed by the experience of the case law”, citing with approval the approach taken by Stratas J.A. in Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605, at para. 60.
[38] When addressing whether the mandatory remedies that the applicant requested should be granted, the Town concedes that the applicant’s judicial review application raises a serious issue to be tried. In so doing, the Town does not suggest that the matter under review fails to raise a public law issue that is the proper subject of a judicial review application. However, the Town goes on to argue that the evidence does not support granting the mandatory relief the applicant requests.
[39] I agree.
[40] As previously noted, the Town recognizes that the ownership issue is unresolved and has not authorized the exclusion of indirect waterfront property owners from use of those properties. In these circumstances, I agree with the Town that the court should not entertain an order (a) restraining the Town from doing something it is not doing and has no present intention of doing, or (b) requiring the Town to undertake any particular legal process to resolve the issues raised by this judicial review application. As indicated above, there are other legal processes open to the indirect waterfront property owners that would result in an express determination of outstanding issues relating to the ownership and use of the waterfront properties. Those processes would provide a more appropriate means to address those issues in preference to this court’s intervention upon judicial review in an incomplete policy and operational process that has yet to crystalize into a definitive course of action.
[41] In light of the foregoing, it is unnecessary to address the applicant’s other submissions in favour of granting the requested relief.
[42] Accordingly, I would dismiss the application for judicial review.
V. Costs
[43] I would award costs on a partial indemnity basis to the Town, being the successful party.
[44] Counsel for each side provided a costs outline. The applicant’s costs outline indicated partial indemnity costs of over $50,000. The corresponding amount indicated in the respondent’s cost outline was over $100,000. Those amounts are well in excess of what is customarily awarded for costs in proceedings of this nature. At the same time, I recognize that the size of the application record in this case (which included multiple affidavits and cross-examination transcripts) was out of the ordinary. I also note that the amount the applicant requested if successful provides some indication of the amount that he may reasonably expect to pay as the unsuccessful party: see Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 57.01(1)(0.b); Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 38.
[45] I would fix the Town’s costs at $40,000, payable within 30 days.
___________________________ Lococo J.
I agree
O’Brien J.
I agree
Hooper J.
Date of Release: February 22, 2023
CITATION: Danbrook v. Georgina (Town of), 2023 ONSC 1201
DIVISIONAL COURT FILE NO.: 22-1317 (Oshawa) DATE: 20230222
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, O’Brien and Hooper
BETWEEN:
Timothy Patrick Danbrook
Applicant
– and –
The Corporation of the Town of Georgina
Respondent
REASONS FOR JUDGMENT
R.A. Lococo J
Date of Release: February 22, 2023
[^1]: Town of Georgina, Resolution No. SC-2017-0243 (2 May 2017).
[^2]: The term “eligible property owners” is defined in the workflow chart as “primarily the owners of property across the traveled portion of Lake Drive road allowance from the lakeside lot.”
[^3]: If an application under the Boundaries Act is made by or on behalf of a municipal council, the costs of and incidental to the application are required to be borne by the municipality, except that where the application relates to the location of the boundaries of a public highway, the costs may be recovered by a special levy on all parcels included in the application: Boundaries Act, s. 6.