Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 27, 2021
CASE NO(S).: MM210002
PROCEEDING COMMENCED UNDER subsection 222(4) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended
Appellant: David Mushing and Phillipe Warren
Subject: By-law No. 92-2020 (Ward Boundary) to facilitate the re-division of the ward structure in the township
Municipality: The Nation
OLT Case No.: MM210002
OLT File No.: MM210002
OLT Case Name: Mushing v. Nation (Municipality)
Heard: August 10, 2021 by video hearing
APPEARANCES:
Parties
Counsel
The Nation Municipality
G. Meeds
David Mushing
M. Cicchino
Phillipe Warren
J. Chen
DECISION DELIVERED BY N.P. ROBINSON AND ORDER OF THE TRIBUNAL
OVERVIEW
1This matter before the Ontario Land Tribunal (the “Tribunal”) is an appeal under s. 222 of the Municipal Act, 2001, by David Mushing and Phillipe Warren (together the “Appellants”) against By-law No. 92-2020 (“By-law”) of the Nation Municipality (“Municipality”) to re-divide the wards in the Municipality.
2The Appellants are residents of Limoges, which is located in the Municipality, who allege unfairness in the boundary review process and claim that the outcome of that review does not comport with the “Carter Principles” described herein.
3The Municipality is a lower-tier municipality which forms part of the upper-tier municipality of the United Counties of Prescott and Russell. The Municipality’s Council currently consists of the Mayor and four Councillors each representing one of four wards.
4In 2019, the Municipality engaged Watson & Associates Economists Ltd. and Dr. Robert J. Williams (collectively, the “Consultant Team”) to conduct a comprehensive ward boundary review. At the conclusion of that review, the Consultant Team’s Report offered the Municipality two options: a four-ward option and a six-ward option. The Municipality selected the four-ward option but the Appellants contend that the six-ward option better satisfies the Carter Principles.
5In November 2019, prior to the Consultant Team commencing any review of documentation for the ward boundary review, Council for the Municipality (“Council”) provided the Consultant Team with the following direction:
Under its authority in the Municipal Act, 2001, s. 222(1), Municipal Council directs the Consultant Team that the proposals it presents to redivide the Municipality will include options to elect a five-member Council.
6At the November 25, 2019 Council meeting, Dr. Williams made the following statement:
That, again, dealing with section 222 which is talking about divide and re-divide, you’re directing us to come back with proposals to redivide the municipality with options to elect a five member council….that’s where you are now…that’s certainly, unless something comes up in this discussion, we will take that as the direction….keep council the way it is…and, as I said, if we decide, or not decide, that’s not the right word, if we feel that there are things that just don’t work very well or the options are flawed in some respects in terms of principles, we might come back and suggest [not comprehensible] (…)….there’s another version you might want to think about changing but the starting point is five member council… (emphasis added)
7This statement must be read in the context of the entire discussion that occurred at the meeting. Immediately after making this statement, Dr. Williams was questioned by one councillor about whether this approach was “too limiting to the process” and reference was made to simply “redistributing population”. Dr. Williams repeated that this approach was a “starting point” and acknowledged that he could not recommend a six-ward option “without research” and stated that he would return to council “for guidance” if needed. Superficially, it appears that the concerns expressed by the Appellants in this matter were also shared by some members of the Council.
8On the basis of Dr. Williams and Josee Brizard’s cross-examinations, and the November 25, 2019 meeting recording entered into evidence, the Tribunal rejects the assertion that Dr. Williams was in any way restricted to only providing a four-ward option. In fact, the evidence suggests the opposite: that he was instructed to include a four-ward option. The options before Council ultimately included both a four-ward option and an option to increase to six wards and, thus, the discussion that occurred between Dr. Williams and the Municipality’s Council in November 2019 serves to inform the Tribunal of the intentions and predispositions of Dr. Williams and Council insofar as questions of procedural fairness are concerned.
9Council, at the November 2019 meeting, further directed that the alternative ward systems presented to Council be based on the Five Guiding Principles (Carter Principles). It was noted in Dr. Williams’ Study Overview that without these provisions in place “there is a risk that an electoral review may lead to unfair, ill-conceived or politically motivated results”. The Five Guiding Principles are:
a) Representation by Population;
b) Population and Electoral Trends;
c) Representation of Communities of Interest;
d) Geographical and Topographical Features; and
e) Effective Representation.
10On February 4 and 5, 2020, two public consultation sessions took place for the Consultant Team and Municipality to receive feedback on three preliminary alternative options. None of these preliminary options were in the final recommendations made to Council. In advance of the public consultations, a letter was mailed out to each resident of the Municipality to ensure they were aware of the meeting.
11On May 6, 2020, the Consultant Team provided a draft report of their findings and recommendations to Ms. Brizard, the Chief Administrative Officer and Clerk for the Municipality, and the Mayor. Ms. Brizard played an administrative role in overseeing the ward boundary review and was actively involved in the review.
12The Municipality argues, and the Tribunal agrees, that Ms. Brizard’s role was administrative in nature and that authority rested with the Consultant Team to decide how to treat comments stemming from reviews of the reports.
13Email correspondence entered into evidence before the Tribunal reveals that the Mayor and Ms. Brizard were “surprised” by the inclusion of a six-ward model into the mix of options. Dr. Williams stated that he thought it was an “important addition to the discussion”. Here, again, the Tribunal recognizes that this evidence needs to be considered in the context of the other evidence available. In isolation, this fact may be less significant than if it is considered together with Dr. Williams’ statements to the Council in November 2019.
14Though Ms. Brizard, who was administratively involved in the ward boundary review, had not anticipated the options Dr. Williams proposed on May 6, 2020, no public consultations were held to review the new options with the Municipality’s constituents.
15Prior to the Consultant Team’s report including their findings and recommendations being finalized, Ms. Brizard provided comments on the report to have the Consultant Team remove what the Municipality saw as “red flags” in its report.
16The report by the Consultant Team was finalized on July 6, 2020 (the “Report”). The Report provided two options: (1) a four-ward model (“Option One”), and (2) a six-ward model (“Option Two”).
17The evidentiary record before the Tribunal demonstrates that Dr. Williams himself was cognizant of the perception that could be created by “tinkering” with boundaries at the last minute and stated insomuch in an email sent in reply to suggestions made by the Mayor. The Tribunal finds that Dr. Williams was cognizant of the issue of procedural fairness.
18After the public consultation meetings in February 2020, the only way for constituents of the Municipality to be aware of any proposals or changes that had taken place regarding the ward boundary review was to check the Municipality’s social media, local newspapers or website. Unlike with the preliminary options, no letter was mailed out to inform residents of what had taken place. Although the Municipal Act provides no guidance or requirements for consultation notice, the Tribunal finds that this fact must be considered with all the other evidence.
19Council approved Option One on September 28, 2020. Councillors made comments focused not on the Five Guiding Principles but on matters like cost, including modifications to council chambers and councillor wages, and infrastructure Limoges had received from Council.
ISSUES
20The issues before the Tribunal are:
a) Have the Appellants established that the process and criteria in determining the ward boundary options were flawed such that it was unfair and unreasonable?
b) Have the Appellants established that Council’s decision in selecting Option One was unfair or unreasonable when considering the “guiding principles”. Does the By-law achieve effective representation?
ANALYSIS
21Ward boundaries, and ward boundary reviews, ensure the fairness of elections at the municipal level. The legislative authority with respect to the composition of Council and the establishment of ward boundaries is found in the Municipal Act, at sections 217 and 222.
22The guiding principle is the Charter-protected right to vote and, thus, providing “effective representation” is the goal of ward boundary reviews. This principle is meant to apply flexibly to ensure that local government is reflective of the population it serves (See: Reference Re Provincial Electoral Boundaries (Sask). 1991 CanLII 61 (SCC), [1991] 2 S.C.R. 158 per McLachlin J. at p. 23 of 37) (“Carter”).
23However, in order to achieve effective representation, factors such as geography, community history, community interests and minority representation may need to be taken into account and may justify deviations from relative parity of voting power, as referenced in Carter, para. 54 as follows:
Secondly, such relative parity as may be possible of achievement may prove undesirable because it has the effect of detracting from the primary goal of effective representation. Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic. These are but examples of considerations which may justify departure from absolute voter parity in the pursuit of more effective representation; the list is not closed.
The Tribunal should intervene when there are clear and compelling reasons
24The Tribunal should intervene in ward boundary matters when there are clear and compelling reasons to do so. The Tribunal has found clear and compelling reasons to intervene when a municipal council has acted unfairly or unreasonably (See Teno v. Lakeshore (Town), 2005 CarswellOnt 6386 51, O.M.B.R. 473 at para. 36) (“Teno”):
Thus, this Board accepts that there must be clear and compelling reasons for the Board to interfere in a municipal council's decision on these matters, and that it may have to be demonstrated that a municipal council has acted unfairly or unreasonably in making a decision on these issues. However, if the evidence demonstrates that the decision of the municipality operates to diverge from the overriding principle of voter equity and effective representation, then the Board can only conclude that the Council has acted unreasonably …
(emphasis added)
25The Tribunal should amend or repeal a decision of the Municipality on ward boundary matters if there is a compelling reason to do so. In determining whether such a compelling reason is present, the Tribunal must inquire into:
The criteria used by the municipality, the studies undertaken to inform the application of those criteria, and the appropriateness of the proposed implementation of those criteria;
The process followed by the municipality, particularly in terms of the extent to which steps were taken to inform the public and provide an opportunity for public comment…
(See: Hambly v. Innisfil (Town), 2009 CarswellOnt 7748, 64 O.M.B.R. 36 at para. 8) (“Hambly”)
Issue A: Were the process and criteria used in determining the ward boundary flawed?
The Criteria
26Prior to commencing its review, the Consultant Team was given the direction from Council that they needed to provide a ward boundary option with four wards (or a five-member council when including the Mayor), which was the same number of wards as currently in place. The Tribunal rejects the Appellants’ argument that Dr. Williams was limited to a four-ward option. Rather, the direction from the Municipality required the Consultant Team to include a four-ward option.
27The Municipality had not undertaken any studies to support this requirement prior to giving this direction to Dr. Williams.
28Dr. Williams’ statement from the November 2019 Council meeting that he was directed to “keep council the same” was admitted on cross-examination but that statement must be viewed in the broader context of the discussion that occurred at that meeting and along with other evidence before the Tribunal.
29During cross-examination, Dr. Williams admitted that prior to even commencing his review, he had committed to including a four-ward option in accordance with the directions provided by Council.
30Dr. Williams believed that there were several alternatives in drawing the boundaries for Limoges. The statement that “I am trying to make sure there is a clear explanation for how we got to the alternatives in the likely result that the noisy folks in Limoges go to LPAT” indicates that Dr. Williams was aware of his responsibilities as an expert and expected his work to be scrutinized.
31The direction by Council to include a four-ward option without the support of any studies is not inappropriate but informs the Tribunal of the parameters imposed by Council. The fact that Ms. Brizard and the Mayor were “surprised” by the inclusion of a six-ward option must be considered in conjunction with this evidence.
The Process
32While the Municipal Act no longer requires a public meeting, the common practice of holding public meetings creates a reasonable expectation that the municipality will hold a public meeting to hear from residents on a ward boundary proposal (See Hambly at para. 13):
A decision to create, abolish or re-divide wards goes directly to the question of effective representation for electors in a municipality. While the Municipal Act no longer requires a public meeting to inform and hear from the public prior to the Council decision, the common practice of holding public meetings on a variety of matters that come before a municipal council creates an environment and reasonable expectation that the municipality will hold a public meeting to hear from residents on a ward boundary proposal. The unchallenged evidence before the Board is that the Town of Innisfil undertook an extensive program of public outreach and information, culminating in a public meeting and final decision on the proposed ward boundary changes. Material was posted on the Town's web site, notices were placed in the local newspaper, residents were invited to provide their comments through the web site or by e-mail or regular mail to the Town Clerk, oral and written submissions were invited at the public meeting and written submissions could be made following the public meeting and prior to a final decision of Council.
33Though public consultations took place in February 2020, after these consultations the Consultant Team created two new options which were presented to Council.
34Ms. Brizard, who was well-informed and active throughout the entire ward boundary review process, revealed that she was very surprised by the ward boundary options that were ultimately presented to Council.
35While the Municipality engaged in public consultations for the preliminary options, going so far as to mail out a letter to all residents and holding two public meetings, this was not done with the new options presented to Council.
36Residents of the Municipality would only know of the new options if they independently checked the Municipal website, social media, or through municipal newspapers. There were limited opportunities for residents to provide feedback on the two new options and, notably, there was not even a survey on the Municipality website. The Tribunal finds that the criteria used and process followed was not flawed to the extent that it was unfair and unreasonable. Consultation did occur and there was, indeed, an opportunity, even if limited, to provide feedback. Despite this, the Tribunal is cognizant of the limits of the public consultation process which occurred and the fact that Dr. Williams was directed to include a four-ward option.
37The Tribunal is entitled to rely upon Dr. Williams’ evidence whilst considering any limitations that the Consultant Team was subject to. The issue of whether Council’s decision in selecting Option One was unfair or unreasonable insofar as the Carter Principles are concerned is a question of law. The Tribunal has the benefit of the totality of the evidence including, but not limited, to the Consultant Team’s Report, testimony received at the hearing, and the video from the Council chambers.
Issue B: Have the Appellants established that Council’s decision in selecting Option One was unfair or unreasonable when considering the “guiding principles”?
38The Tribunal finds that Council’s decision in selecting Option One was unreasonable and unfair as it fails to reasonably meet the Five Guiding Principles established by the courts.
Effective Representation
39The Supreme Court of Canada has held that the purpose of the right to vote enshrined in s. 3 of the Charter is the right to “effective representation” (See: Carter at para. 26):
In summary, it has not been established that there was a pressing or substantial need either to rigidly fix the number of urban and rural ridings in southern Saskatchewan or to confine the urban ridings to existing municipal boundaries. It follows that the first requirement of s. 1 has not been met. Even if it had, I would think it impossible to find that the rights of urban voters had been interfered with as little as possible. The impugned legislation cannot therefore be justified under s. 1 of the Charter.
40Effective representation is the overarching consideration and is achieved from a starting position of “representation by population” or voter parity with other considerations taken into account. While the test of effective representation consists of the application of judgment and trade-offs among several competing factors, it is a process with parameters defined by the courts (See: Dobrucki v. Hamilton (City), [2017] O.M.B.D. No. 1275, paras. 64 and 101) (“Hamilton”):
64As the case asserts, "effective representation" is the overarching consideration and is achieved from a starting position -- specifically of prime importance - of "representation by population" or voter parity with other considerations "taken into account".
101The test of effective representation consists of the application of judgment and trade-offs among several often competing, factors. In this case, the factors have been explicitly identified are listed as the six Hamilton Criteria as we have been calling them. In considering the application of these criteria, it is fair to say that they are not of equal value. We have already established, based on the SCC Carter decision, that "effective representation" has an overarching value and is the principal consideration which is informed by the application of the other criteria.
41The principle of effective representation is intended to ensure that residents have comparable access to their elected representative and each councillor will speak in government deliberations on behalf of approximately the same number of residents.
Representation by Population
42The first condition of effective representation is relative parity of voting power (See: Carter at para. 27 as recognized for ward boundary reviews in Hamilton at para. 63):
A system which dilutes one citizen's vote unduly as compared with another citizen's vote runs the risk of providing inadequate representation to the citizen whose vote is diluted. The legislative power of the citizen whose vote is diluted will be reduced, as may be access to and assistance from his or her representative. The result will be uneven and unfair representation.
43While parity of voting power is of prime importance, it is not the only factor to be considered. Departure from voter parity can be justified by reference to other factors to achieve effective representation, including geography, community history, community interests and minority representation; however, undue departure beyond what is necessary for effective representation is not acceptable. The Five Guiding Principles in the Report closely mirror the Carter Criteria (See: Carter at para. 28; Hamilton at para. 65).
44When formulating a ward system that achieves effective representation, one begins with parity and should only stray from a standard of parity if it is necessary to achieve or maintain effective representation (See: Hamilton at para. 103):
In Carter, the court said that "deviations from voter parity may be justified on the grounds of...effective representation. Beyond this the dilution of one citizen's vote as compared with another's should not be countenanced." In other words, when formulating a ward system that achieves effective representation, one begins with parity and should only stray from a standard of parity if it is necessary to achieve or maintain effective representation. Effective representation is not an excuse for ignoring population parity; on the contrary, it is one of the reasons that we must strive for parity.
45When asked about the legal test defined by Carter, and adopted by Hamilton, Dr. Williams stated that this was “the goal”. The Tribunal contrasts this testimony with Dr. Williams’ emails wherein he states, “I am trying to make sure there is a clear explanation for how we got to the alternatives in the likely result that the noisy folks in Limoges go to LPAT”. Although the Carter test may be much more fluid than simple arithmetic, the conclusions one reaches must be preceded by the facts.
Option One Does Not Have Population Parity
46Population parity is the combination of “Representation by Population” and “Population by Electoral Trends”. The Tribunal finds that Option One fails both “Representation by Population” and “Population by Electoral Trends”.
47On cross-examination, Dr. Williams agreed it was obvious that there was not population balance in all wards.
Option One Does Not Appropriately Stray from Parity for a Community of Interest
48Case law demonstrates that a deviation from voter parity of 25-33% is tolerable if it is supportive of more effective representation. These are not firm limits and can be surpassed if the interplay with the other conditions militates in favour of doing so. The Consultant Team adopted a range of 25% above or below the population and viewed such a range as a “rather generous range of tolerance” (See Teno at paras. 28 and 29; Hambly at para. 20).
49The Report reveals that Option One has a deviation from voter parity of 42% in 2020, and in 2030 this deviation is estimated to increase to 56%. This goes well beyond the “acceptable range” set out in the Report and goes beyond any range ordinarily deemed tolerable by the Tribunal. In circumstances where the other Carter Principles, such as maintaining a community of interest, are significantly advanced by permitting excessive voter dilution such excesses may be permissible. The Tribunal finds no such special circumstance in this case.
Representation of Communities of interest
50Option One is justified in the Report as a way to capture Limoges as a community of interest in a single ward. This single ward is Ward Four, the ward with a population imbalance of presently 142% of the population average of the Municipality with an expected 156% of the average in 2030.
51Dr. Williams admitted under cross-examination that he did not conduct any assessment or review to determine communities of interest within the Municipality. He testified that he is not an expert with respect to the communities of interest in the Municipality.
52The Tribunal finds that Dr. Williams did not perform an assessment or review to determine communities of interest. One Participant Statement filed reveals that some communities were never even considered by Dr. Williams.
53This fact is of great significance given that the Municipality argues that maintaining Limoges as a Community of Interest is the primary justification for allowing the significant population imbalance. The Tribunal must consider both the extant population imbalance and future population trends which indicate that the imbalance will worsen. It is unclear when another ward review will occur and the Tribunal’s decision will impact the Municipality’s residents for years to come.
54A “Community of Interest” is offered as a means of ensuring that certain identified groups or specific categories of citizens who live in a certain geographical area “have a voice” or are “represented at the council table”. The Carter decision supports this by referring to “community interests” and “minority representation” (See: Hamilton at para. 103).
55Mr. Mushing, the only resident to testify before the Tribunal, stated that the residents did not oppose splitting Limoges but they opposed removing the outer boundaries of Limoges and placing them in rural wards. In fact, it is undisputed that Limoges is already divided, 20% of Limoges is in the Township of Russell, and 80% is in the Municipality.
Population and Electoral Trends
56Option One does not address an extant voter parity issue. The Tribunal notes that deviation from voter parity is already at 9 percentage points past the threshold ordinarily considered acceptable and the Tribunal has great difficulty accepting that Option One is justified by “communities of interest”. Again, a significant dilution of voting power could be permissible if it advances other Carter Principles such as maintaining a community of interest. This stated, there is nothing preventing a community of interest from being divided and, indeed, this occasionally could result in more effective representation. In the within matter, the dilution of voting power is so significant that it cannot be justified by any marginal benefit from maintaining the community of interest.
57Option One dilutes the voice of this community by keeping Limoges together in Ward 4. As the population in Limoges is expected to grow more than that of the other wards in the Municipality, the voice of this community will be diluted further. This is not in keeping with the test for “effective representation”.
58As stated in Hambly, supra, there are, and there must be, limits to the extent to which one person’s vote is diluted in value against that of another. A 25% range, plus or minus, from the average has long been accepted as a reasonable accommodation of other criteria which, taken together, result in effective representation. The deviation in the instant case is well outside that range and cannot be considered a modest dilution of the community’s voting power. This is especially the case given frailties in the arguments concerning maintaining the Limoges community of interest (See: Hambly at para. 20).
59The Tribunal finds that Option One goes beyond the ordinary threshold of a reasonable accommodation of other criteria and dilutes the value of one person’s vote against that of another and cannot be said to meet the test of effective representation.
60The Municipality argues that both options achieve effective representation in different ways and that matters such as budgetary considerations can be considered where two equally valid options exist. The Tribunal respectfully disagrees that both options are equally valid given the severity of the dilution in voting power and the weakness of the community of interest argument. The two options do not both equally achieve effective representation and thus budgetary concerns become secondary to the Carter Principles.
61The Municipality further argues that Option One places emphasis on the principle of keeping the Limoges community of interest together and that the trade-off in emphasizing this principle is the deviation away from the ideal population variance between wards. Option Two, the Municipality argues, achieves effective representation by essentially sacrificing the principle of maintaining Limoges as a community of interest. Again, the Tribunal disagrees with this point. Limoges is already divided with 20% of Limoges in the Township of Russell and projected future population growth may mean that it is necessary to divide Limoges to protect voter parity.
Weight of the Evidence before the Tribunal
62It is the duty of an expert witness to provide fair, objective, and non-partisan evidence to the Tribunal. An expert witness must be impartial, independent, and show an absence of bias:
The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her.
(See: White Burgess Langille Inman v. Abbott and Haliburton Co, 2015 SCC 23, 2015 S.C.C. 23 at para. 32)
63The evidence of an expert before the Tribunal must be provided in an unbiased, non-adversarial and objective fashion. The Tribunal was particularly reliant on the evidence of Dr. Williams as there was no ward boundary evidence introduced by the Appellants to counter the opinions of the expert of the Municipality.
64The Tribunal found Dr. Williams to be candid and his testimony assisted the Tribunal in ascertaining the evidence in relation to the key elements of the legal tests involved.
65The Appellants argue that Dr. Williams’ evidence should be given less weight and that he was not an impartial witness. The Tribunal disagrees with this point and finds that Dr. Williams was candid and forthcoming in his testimony. Moreover, the Tribunal takes note of the fact that a six-ward option was provided despite what could be perceived as pressure by the Municipality to only offer four-ward alternatives.
66Dr. Williams’ testimony must be considered and weighed alongside all other evidence including but not limited to his email correspondence, the video records of Council meetings, and the other material exhibited before the Tribunal. Moreover, Dr. Williams candidly admitted any deficiencies or inferences made in his work.
67The Carter test is of a legal nature and the Tribunal can find Dr. Williams to be both reliable and credible whilst concluding that the choice of Option One does not satisfy the Carter test due to its effect on diluting the voting power of a community without having a significant corollary benefit to maintaining the community of interest. Indeed, Option Two, according to Dr. Williams, also satisfies the Carter Principles.
68In short, the cost in voting power is so great that it is not offset by whatever small benefit might accrue from keeping the Limoges community of interest intact.
69The initial “direction” to “keep council the way it is”, Dr. Williams’ suggestion he “will be ready to defend your decision if it comes to that”, and his statement that he would try “to make sure there is a clear explanation for how we got to the alternatives in the likely result that the noisy folks in Limoges go to LPAT” provide insight into the intentions and predispositions of both Dr. Williams and the Municipality.
70The totality of the evidence before the Tribunal, including but not limited to the fact that Dr. Williams ultimately offered a six-ward option, leaves little doubt that he acted in accordance with his obligations as an expert witness.
FINDINGS
71In the Report, the Consultant Team states that the ward design adopted should be the one that best fulfills as many of the Five Guiding Principles as possible.
72The Tribunal finds that Option One does not meet the test for “effective representation” or satisfy the Five Guiding Principles. “Effective representation” starts with voter parity, which Option One does not have. A 25%-33% range, plus or minus, from the average has long been accepted as a reasonable accommodation for criteria such as “communities of interest”. Option One’s ward variation does not fall within this range and goes beyond the ordinary limits of the extent to which one person’s vote ought to be diluted in value against that of another. It thus cannot meet the test for effective representation (See: Hamilton at paras. 64 and 101; Hambly at para. 20).
73The Tribunal finds that the decision of the Municipality operates to diverge from the overriding principle of voter equity and effective representation and the Tribunal therefore concludes that the Municipality has acted unreasonably in selecting Option One.
74The Tribunal acknowledges the preference for a locally driven solution: one which is decided by those who are most familiar with the questions at hand. This stated, for the foregoing reasons, the Tribunal finds that Option One neglects voter parity concerns without a corollary justification and thus constitutes a clear and compelling reason for the Tribunal to intervene. In Carter, the Supreme Court of Canada reminds us that voting power is of “prime importance”. It must be considered alongside the other factors but it has some degree of pre-eminence amongst the factors (See: Carter at para. 28). The Consultant Team has offered two options to the Municipality and it is unclear when another ward boundary review may be conducted. Inaction may mean that extant and future voter parity issues remain unresolved.
75With respect to concerns expressed by the Appellants about the limitations of the public consultation process, the Tribunal notes that, to some extent, the appeal process serves to remedy those concerns. Community members had the opportunity to make written submissions in this matter by way of participant statements and the Tribunal is satisfied that it can render a decision on the basis of the robust evidentiary record before it.
76The Tribunal finds that the Appellants have established that Council’s decision in selecting Option One was unfair and unreasonable when considering the “guiding principles”. The Supreme Court of Canada itself, in the Carter decision, states that a lack of voter parity may result in “even and unfair representation”. The Tribunal finds that to be precisely what has occurred here and finds no reason to excuse this fact. More effective representation is not achieved by Option One (See: Carter at para. 27).
77In Carter, the Supreme Court of Canada states:
- It emerges therefore that deviations from absolute voter parity may be justified on the grounds of practical impossibility or the provision of more effective representation. Beyond this, dilution of one citizen's vote as compared with another's should not be countenanced. I adhere to the proposition asserted in Dixon, at p. 414, that "only those deviations should be admitted which can be justified on the ground that they contribute to better government of the populace as a whole, giving due weight to regional issues within the populace and geographic factors within the territory governed.
78The Municipality argues that Option One and Option Two both achieve effective representation but in different ways. The Tribunal disagrees with this assertion and finds that the dilution of voting power in Option One cannot be justified by the marginal benefit entailed in keeping the Limoges community of interest together. Option One does not achieve effective representation.
79The Municipality directed the Consultant Team to include a four-ward option and, the evidence indicates, was “surprised” when another alternative was introduced. Despite this, Dr. Williams, in accordance with his obligations as an expert, included the six-ward option.
80Having reviewed all the evidence as a whole, the Tribunal finds that Option Two meets all Five Guiding Principles and thus achieves effective representation.
ORDER
81THE TRIBUNAL ORDERS that the appeal of David Mushing and Phillipe Warren pursuant to subsection 222(4) of the Municipal Act, 2001, S.O. 2001, c. 25 is allowed.
82THE TRIBUNAL ORDERS pursuant to subsections 222(7) and (8) of the Municipal Act, 2001, S.O. 2001, c. 25 that By-law No. 92-2020 be amended by The Nation Municipality before January 1, 2022 to reflect Option Two in accordance with Schedule “A”.
“N.P. Robinson”
N.P. ROBINSON
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
MM210002 – Schedule A