COURT FILE NO. : CV-22-678234 DATE : 20230713

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: LOUIS LABRECQUE AND: CITY OF TORONTO

BEFORE: Justice Chalmers

COUNSEL: A. Honickman for the Applicant M. Siboni and A. Hussain for the Respondent

HEARD: April 18, 2023, by videoconference

REASONS FOR JUDGMENT

OVERVIEW

[1] Bill 21 is a Quebec statute known as, An Act Respecting the Laicity of the State. The Bill came into force on June 16, 2019. The legislation prohibits public service employees in Quebec from wearing religious symbols while in the course of their employment. Legal challenges have been mounted in Quebec arguing that Bill 21 is unconstitutional. In December 2021, the Toronto City Council decided to provide a one-time contribution of up to $100,000 to the joint legal challenges.

[2] The Applicant seeks an order quashing that section of the By-Law that provides for the funding contribution to the legal challenge to Bill 21 in the Province of Quebec. The Applicant argues that the By-Law is void on the basis of illegality because it is ultra vires of the City of Toronto Act, 2006, S.O. 2006, c. 11 (the “COTA”) and the Municipal Act, 2001, S.O. 2001, c. 25.

[3] For the reasons set out below, I find that the By-Law is not for a valid municipal purpose and is therefore ultra vires of the COTA. I order that part of the By-Law that provides funding of up to $100,000 for the legal challenge is Quebec, is quashed.

FACTUAL BACKGROUND

[4] In April 2019, the Government of Quebec was proposing to enact legislation that would prohibit public service employees from wearing visible religious symbols in the workplace. Bill 21 is an Act of the National Assembly of Quebec. The Bill has no application outside of Quebec.

[5] Community groups including the World Sikh Organization of Canada, the National Council of Canadian Muslims, and the Canadian Civil Liberties Association brought an application challenging the constitutionality of Bill 21 in the Quebec courts, on the basis that it is discriminatory and affects the freedoms of all Canadians.

[6] Toronto City Council expressed its opposition to Bill 21. On April 16 and 17, 2019 Council adopted the recommendations of Members Motion MM 6.29, which called on Council to assure residents of, and visitors to Toronto, that the City will always welcome people of all faiths and protect their freedom of religion and expression. On April 17, 2019, the City Council passed the following recommendation:

1. City Council once again reaffirms its support for freedom of religion and expression, and further state its opposition to any legislation that would restrict or prohibit such freedoms and by doing so, Toronto states its position that the City continues to be a source of worldwide inspiration.

[7] Bill 21 was passed by the National Assembly of Quebec on June 16, 2019. On October 29 and 30, 2019, Council considered the recommendations of Members Motion MM 11.20. On October 30, 2019, City Council adopted the following recommendations:

1. Toronto City Council oppose Quebec's Bill 21, An Act respecting the laicity of the State and reaffirm the City's commitment to upholding religious freedoms as outlined in the Canadian Charter of Rights and Freedoms.
2. Toronto City Council endorse the initiative proposed by Calgary City Council and supported by the Regional Municipality of Peel that asks the Canadian Coalition of Municipalities Against Racism and Discrimination, of which the City of Toronto is a member, to create a nationwide campaign that highlights the harmful widespread impacts of Bill 21 on social cohesion and inclusion in Canada.
3. City Council encourage the Federal government to unequivocally condemn and challenge Quebec's Bill 21.

[8] In adopting MM 6.29 and 11.20, the City was not required to commit public funds or take any direct action against Bill 21.

[9] On December 16, 2021, then Mayor John Tory brought a Motion Without Notice. The motion was designated as Members Motion MM 38.43, which was entitled “Reaffirming Toronto’s Opposition and Providing Financial Support to the Legal Challenge Against Quebec’s Bill 21.” The motion was prompted by the fact that a Quebec teacher, Fatemeh Anvari had been recently removed from her job as a grade 3 teacher in Quebec for wearing a hijab.

[10] The debate on the motion did not consider any documentary or oral evidence. There were no submissions from interested parties. MM 38.43 states that Brampton City Council had convened and committed financial support for the legal challenge against Bill 21 and had asked other municipalities to provide financial contribution towards the legal challenges. The City of Brampton published a press release on December 15, 2021 which set out the content of the motion.

[11] The recommendations set out in MM 38.43 included a one-time 2021 contribution of up to $100,000 to the joint legal challenges of Bill 21 in Quebec. Toronto City Council adopted the following recommendations:

1. City Council reaffirm its opposition to the Province of Quebec's Bill 21, An Act respecting the laicity of the State ("Bill 21") and reaffirm the City's commitment to upholding the freedoms set out in the Canadian Charter of Rights and Freedoms.
2. City Council support the current legal challenges against Bill 21.
3. City Council provide a one-time 2021 contribution of up to $100,000 to the joint legal challenges of Bill 21 by the National Council of Canadian Muslims, the World Sikh Organization, and the Canadian Civil Liberties Association, to be accommodated from available funding within the 2021 Operating Budget within Non-Program Expenditures.
4. City Council call on all other Canadian municipalities to affirm their opposition to Bill 21 and provide financial contributions to support the legal challenge.

[12] Following the conclusion of its December 2021 meeting, Council passed By-Law 1110-2021 to confirm the proceedings of Council meetings of December 15 – 17, 2021, including the decision to adopt MM 38.43 (the By-Law). Following the adoption of MM 38.43’s recommendations, the City issued a press release that stated that Bill 21 stands contrary to the values of Torontonians and Canadians. The press release emphasized that Toronto is a “city where people of all faiths can feel assured and comfortable when wearing their religious symbols in schools, workplaces, and government institutions”.

[13] Louis Labrecque is a taxpayer in the City of Toronto. He brought this Application to quash the part of By-Law 1110-2021 that provides for the one-time funding contribution of up to $100,000 for the legal challenges to Bill 21 in Quebec. The Notice of Application was issued on March 11, 2022. Following the issuance of the Application, the City of Toronto agreed to not release the funds in question pending the determination of this Application.

THE ISSUES

[14] The only issue to be determined on this Application is whether the Applicant has established that the part of By-Law 1110-2021 that provides for a one-time contribution of up to $100,000 to the Bill 21 legal challenge, does not have a valid municipal purpose.

ANALYSIS AND DISCUSSION

[15] This Application is brought under s. 214(1) of the COTA, which provides that the Superior Court has jurisdiction to quash a by-law, in whole or in part, for illegality. The Applicant argues that the part of the By-Law that requires funding of up to $100,000 for the legal challenges to Bill 21 is illegal on the basis that there is no valid municipal purpose.

Legal Principles

Shell Canada Products Ltd. v. Vancouver

[16] There is no dispute between the parties with respect to the general proposition that municipalities are “entirely creatures of provincial statute” and can only exercise those powers which are expressly conferred upon them by a provincial statute: R. v. Greenbaum, [1993] 1 S.C.R. 674, at para. 22; Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, at para. 82.

[17] In support of its position that the By-Law is ultra vires, the Applicant relies upon the decision of the Supreme Court in Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231. The Vancouver City Council passed resolutions that the City would not do business with Shell Canada until its parent company, Royal Dutch/Shell completely withdrew from South Africa. The resolution provides that the purpose of the resolution was for the citizens of Vancouver to express their “repugnance and moral outrage” against apartheid and to take action to bring about the end of apartheid.

[18] The majority in the Supreme Court stated that the purpose of the by-law or resolution must fall within the powers that can be exercised by the municipality as set out in the provincial legislation. In Shell Canada, the purpose was defined in the preamble and the operative part of the resolutions. The court found that the express purpose of the resolution was to influence Shell Canada to divest in South Africa. The court found that this was not a valid municipal purpose:

There is no mention as to how the good government, health or welfare of the City or its citizens is affected or promoted hereby. Specifically, there is no mention of any objective of improving relations among its citizens. [….] I therefore agree with the trial judge that the respondent was seeking to use its powers to do business “to affect matters in another part of the world”, a purpose which is directed at matters outside the territorial limits of the City.

Is this in relation to a municipal purpose? Clearly there is no express power in the Vancouver Charter authorizing the Resolutions and if they are valid the respondent must rely on such powers being implied. This requires a consideration of the relevant provisions of the Vancouver Charter on the basis of the principles outlined above. So far as the purpose of the Vancouver Charter is concerned it is perhaps best expressed in s. 189, which provides that "Council may provide for the good rule and government of the city". In this regard its purpose does not differ from the purpose generally of municipal legislation which, as stated above, is to promote the health, welfare, safety or good government of the municipality. This places a territorial limit on Council's jurisdiction. No doubt Council can have regard for matters beyond its boundaries in exercising its powers but in so doing any action taken must have as its purpose benefit to the citizens of the City.

In summary on this point, applying the principles enunciated above, I have concluded, as did the trial judge, that the purpose of the Resolutions is to affect matters beyond the boundaries of the City without any identifiable benefit to its inhabitants. This is a purpose that is neither expressly nor impliedly authorized by the Vancouver Charter and is unrelated to the carrying into effect of the intent and purpose of the Vancouver Charter.

[19] The Respondent argues that the majority of the Supreme Court adopted a narrow approach in interpreting the resolution. McLauchlin J. (as she then was) for the minority applied a more broad and purposeful approach, which accords considerable respect and deference to municipal councils. In her dissent she stated as follows:

…courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the "benevolent construction" which this Court referred to in Greenbaum, and confer the powers by reasonable implication. Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives.

[20] The Respondent states that McLachlin J.’s dissent found favour and has been followed in several subsequent cases. In Croplife Canada v. Toronto (City), the Ontario Court of Appeal recognized the shift to the “broad and purposive” approach to the interpretations of statues that empower municipalities:

[18] McLachlin J.'s broad and purposive approach to the interpretation of municipal statutes was subsequently adopted and approved by the Supreme Court in several cases, including Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342, [2000] S.C.J. No. 14; United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485, [2004] S.C.J. No. 19; and Spraytech, supra.

[19] At the same time, some provinces, starting with Alberta and now including Ontario, began to enact broader and more flexible enabling statutes for their municipalities. The United Taxi case, supra, arose under Alberta's new Municipal Government Act, S.A. 1994, c. M-26.1, which, like the Ontario Municipal Act, 2001, incorporates the concept of spheres of jurisdiction. [page368] The issue in that case was whether the City of Calgary had the authority under Alberta's new Act to freeze the number of taxi licences it issued. Although he was dealing with the interpretation of broadly worded powers in the Act to pass by-laws to regulate transportation and licences, Bastarache J.'s discussion of the new broad and purposive interpretive approach was not confined to the new form of statute. He stated at para. 6:

The evolution of the modern municipality has produced a shift in the proper approach to the interpretation of statutes empowering municipalities. This notable shift in the nature of municipalities was acknowledged by McLachlin J. (as she then was) in Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231, at pp. 244-45. The "benevolent" and "strict" construction dichotomy has been set aside, and a broad and purposive approach to the interpretation of municipal powers has been embraced: Nanaimo, supra, at para. 18. This interpretive approach has evolved concomitantly with the modern method of drafting municipal legislation. Several provinces have moved away from the practice of granting municipalities specific powers in particular subject areas, choosing instead to confer them broad authority over generally defined matters: The Municipal Act, S.M. 1996, c. 58, C.C.S.M. c. M255; Municipal Government Act, S.N.S. 1998, c. 18; Municipal Act, R.S.Y. 2002, c. 154; Municipal Act, 2001, S.O. 2001, c. 25; The Cities Act, S.S. 2002, c. C-11.1. This shift in legislative drafting reflects the true nature of modern municipalities which require greater flexibility in fulfilling their statutory purposes: Shell Canada, at pp. 238 and 245.

The City of Toronto Act, 2006 (COTA)

[21] The Respondent argues that the deferential approach afforded to municipal councils has been recognized by provincial legislatures including Ontario. The COTA was amended in 2006. The Respondent argues that the COTA mirrors the broad public interest approach from McLachlin J.’s dissent in Shell Canada.

[22] The preamble of the COTA provides that Toronto has special status among Ontario municipalities that is unparalleled in other Canadian provincial municipal statutes and city charters. The provincial legislature recognized Toronto’s “important role” in creating and supporting a “high quality of life for the people of Ontario”, as well as its role as a government that is “capable of exercising its powers in a responsible and accountable fashion” and as an “economic engine of Ontario and of Canada.”

[23] The Respondent argues that COTA confers broad powers to the City of Toronto. The relevant sections of the COTA are as follows:

s. 2 The purpose of this Act is to create a framework of broad powers for the City which balances the interests of the Province and the City and which recognizes that the City must be able to do the following things in order to provide good government:

1. Determine what is in the public interest for the City;
2. Respond to the needs of the City;

s. 6 (1) The powers of the City under this or any other Act shall be interpreted broadly so as to confer broad authority on the City to enable the City to govern its affairs as it considers appropriate and to enhance the City’s ability to respond to municipal issues.

s. 8 (1) The City may provide any service or thing that the City considers necessary or desirable for the public.

s. 8 (2) The City may pass by-laws respecting the following matters: [….]

5. Economic, social, and environmental well-being of the City, including respecting climate change.
6. Health, safety and well-being of persons.

s. 83 (1) Despite any provision of this or any other Act relating to the giving of grants or aid by the City, subject to section 82, the City may make grants, on such terms as to security and otherwise as the council considers appropriate, to any person, group or body, including a fund, within or outside the boundaries of the City for any purpose that council considers to be in the best interest of the City.

s. 213 A by-law of the City of a local board or the City passed in good faith under any Act shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law.

s. 214 (1) Upon the application of any person, the Superior Court of Justice may quash a by-law, order or resolution of the City or a local board of the City in whole or in part for illegality.

[24] The COTA was considered in Holyday v. Toronto (City), 2010 ONSC 3355 (Div. Ct). The court held that a generous and deferential approach is to be adopted, when addressing challenges to municipal by-laws. The court stated as follows:

This conferral of broad powers is consistent with the current jurisprudence of the Supreme Court of Canada dealing with the interpretation of municipal powers. The Court has adopted a generous approach to interpretation of those powers (114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241 (S.C.C.) at paras. 23 and 26). A court’s approach should be deferential. In applying a general provision allowing a municipality to act to secure peace, order, good government, health, and general welfare within its territory, the Supreme Court asked whether the enacted provisions regulating the use of pesticides “have a reasonable connection to the municipality’s permissible objectives”: at para. 26.

[25] The broad discretionary language in the COTA was also considered in Eng v. Toronto (City), 2012 ONSC 6818. The City passed a by-law that provided in part that, “no person shall possess, sell or consume shark fin products within the city of Toronto.” The preamble to the by-law provides that “the consumption of shark fin and shark fin products may have an adverse impact on the health, safety and well-being of persons and on the economic, social and environmental well-being of the City of Toronto.”

[26] The court in Eng referred to the deferential approach that was set out in the dissenting reasons of McLachlin J. in Shell Canada. The Court stated as follows:

[17] Municipal by-laws attract a strong presumption of validity. The party challenging a by-law's validity bears the burden of proving that it is invalid. Where a by-law is susceptible to more than one interpretation, it must be read to fit within the parameters of the enabling municipal legislation. Barring "clear demonstration" of invalidity, courts should not so hold.

[18] The analytical approach to be applied in determining the purposes of a particular by-law requires consideration of the entire context. Failure to do so constitutes palpable and overriding error. As stated by Cromwell, J.A. (as he then was) in Halifax (Regional Municipality) v. Ed DeWolfe Trucking Ltd., 2007 NSCA 89, at para. 54:

To determine the purpose of a by-law, one considers express statements of purpose contained in it or in other sources; draws inferences about the purpose from the text; has regard to the overall scheme of which the provision is part; looks at the evolution of the provision and the broader scheme, and assesses the external context in which it was enacted. [.…]

[27] The court noted that the City has broad power to deal with municipal issues. However, the broad deferential approach does not change the fact that a decision by the City must have a proper municipal purpose. The Court stated that it is necessary to keep in mind the duty of vigilance to ensure that the by-law is with respect to a problem that engages the community as a local entity: Eng v. Toronto, at paras. 19, 20 and 83.

[28] In Eng, the City argued that the by-law had a valid municipal purpose because it “gave voice to the social and environmental values of Toronto pertaining to the natural environment, including animals”. The court rejected this argument. The court stated that the fact that the by-law may give voice to the values of Torontonians is not the test. The test is whether the by-law has a municipal purpose that relates to the social well-being of the City. The court stated as follows:

[73] It is important that the issue in Shell Canada was the validity of a council resolution to prohibit the City of Vancouver from buying gas from a company associated with a company that carried on business in South Africa. The By-law was concerned with how the City of Vancouver spent public resources, not with activities of inhabitants of the City dealing with each other in the private sector or indeed, with the food consumption practices of individual inhabitants.

[74] The offensive practice in the present case ‑ shark finning ‑ does not occur in the City. Some Torontonians undoubtedly hold “the social and environmental values” to which the City refers in its submissions. But, whether or not the By-law gives voice to such values is not the test stated in the Act. The test in this regard is whether the By-law has a municipal purpose that relates to “the social well-being of the City”. The phrase “social well-being of the City” is not defined in the Act and no case law on the question has been cited. The phrase must refer to the ability of the inhabitants of the City to live together in the City as an urban society. There is nothing to suggest that the offensive practice of shark-finning in distant oceans affects the ability of Torontonians to live together as an urban community. For this reason, it cannot be considered to relate to their social well-being.

[29] In Eng, the Court also rejected the City’s argument that the purpose of the legislation was in respect of health. The court stated that there was “no air of reality” to the potential adverse health impacts of shark fin food products: Eng v. Toronto, at para. 85.

Is There a Valid Municipal Purpose to the By-Law?

[30] Under s. 6(1) of the COTA, the City’s broad powers are limited to “municipal issues”. The COTA does not define “municipal issues” but in its ordinary sense, a municipal issue is an issue that has a valid municipal purpose: Eng v. Toronto (City), at paras. 19-21, 57. A municipal purpose is a purpose that promotes the health, welfare, safety and good government of the municipality: Shell Canada, at paras. 97 and 100.

[31] As noted in Eng v. Toronto, courts must be vigilant in scrutinizing the true purpose of the by-law. The by-law must be closely related to the immediate interests of the community within the territorial limits where local governments may intervene. By-laws passed for the general welfare purpose does not allow the municipality to exercise powers outside traditional areas of municipal interests: 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] S.C.R. 241, at paras. 20 and 53.

[32] The part of the By-Law that is being challenged in this Application is that which enacts the recommendation of MM38.43 to contribute funding of up to $100,000 to the Bill 21 legal challenge in Quebec. The Applicant does not challenge the broad statements of support in the resolutions of April 17 and October 30, 2019. The Applicant also does not challenge recommendations 1 and 4 from MM 38.43.

[33] The Applicant argues that the part of the By-Law that provides a contribution of up to $100,000 for the legal challenge to Bill 21 should be quashed on the basis that it is ultra vires because there is no valid municipal purpose. The Applicant takes the position that the part of the By-Law that commits the City of Toronto to fund litigation in another province to help defeat a Quebec law, passed by a duly elected provincial legislature, “is the very antithesis of a valid municipal purpose”.

[34] The Respondent argues that the By-Law is to protect Charter rights for all Canadians including Torontonians and to assure residents and visitors to Toronto that their religious freedoms will be protected. The Respondent argues that the By-Law was passed in good faith to advance a legitimate municipal purpose. The Respondent states that the By-Law is grounded in the broad authority to protect the economic, social and environmental well-being of the City as set out in s. 8(1).5 of the COTA. The Respondent also relies on the power to give grants within and outside the jurisdiction set out in s. 83 of the COTA. The Respondent argues that in keeping with the principle of deference, the decision of City Council should be respected.

Analysis

[35] The purpose of the By-law is set out in the motion to consider recommendation MM 38.43. The motion provides as follows:

Toronto City Council has taken a consistent and firm stance in its opposition to Bill 21. Toronto, as one of the most diverse and multicultural cities on the planet, home to many different religious communities, and ensures that people of all faiths can feel comfortable wearing their religious symbols in schools, workplaces and government institutions.

This law diminishes rights protected by The Canadian Charter of Rights and Freedoms and stands contrary to the values of Torontonians and Canadians – values this council has been vigilant in protecting and upholding.

This Motion is urgent because, in order to provide the best fighting chance for the legal challenge to Bill 21, it requires a commitment of sufficient financial resources from Canadian municipalities as soon as possible.

[36] The Respondent argues that the By-Law relates to a valid municipal purpose and was passed under the power conferred in s. 8(2).5 which is the authority to protect the economic, social and environmental well-being of the City.

[37] There is no suggestion that Torontonians are subject to the type of restrictions imposed by Bill 21. The Bill applies only to Quebec and does not have an extra-territorial application. In fact, the motion specifically provides that Bill 21 does not apply to Toronto. The motion to consider recommendation MM 38.43 provides that Toronto, “as one of the most diverse and multicultural cities on the planet, is home to many diverse religious communities, and ensures that people of all faiths can feel comfortable wearing their religious symbols in schools, workplaces, and government institutions.”

[38] The press release issued after City Council passed the By-Law states that Bill 21 “stands contrary to the values of Torontonians and Canadians”. It is my view that a by-law that gives “voice to values” is not a valid exercise of municipal power. As noted in Eng v. Toronto, some Torontonians undoubtedly hold the values that persons should have the right to wear religious symbols in the workplace. However, the test is whether the By-Law has a municipal purpose that relates to the social well-being of the City.

[39] In Eng v. Toronto, the court considered the current wording of the COTA. In similar circumstances, the court found that the by-law banning shark fin products was not for a valid municipal purpose and declared the by-law illegal. The court stated that the phrase “social well-being of the City, … must refer to the ability of the inhabitants of the City to live together in the City as an urban society”. The court noted that the practice of shark finning did not occur in Toronto and did not affect the ability of Torontonians to live together in an urban community. Similarly, it is my view that Bill 21, which applies to Quebec government employees and prevents them from wearing religious symbols in their workplaces in Quebec, does not affect the ability of Torontonians to live together as an urban community: Eng v. Toronto, at para. 74.

[40] The result in the Shell Canada case was similar. The majority of the Supreme Court found that the practice of apartheid was contrary to the values of the City of Vancouver. The court held that the resolution to express its “moral outrage” was not grounded in a valid municipal purpose: Shell Canada, at paras. 74 and 99.

[41] In Shell Canada, the majority of the Supreme Court found that the purpose of the resolutions was to “affect matters beyond the boundaries of the City without any identifiable benefit to its inhabitants”. In Eng v. Toronto, the purpose of the By-Law was to affect the practice of shark finning that took place in “distant oceans”. In both cases, the Courts held that the foreign law and practices had no effect on the city inhabitants.

[42] The Respondent argues that the Shell Canada and Eng cases are distinguishable. The Respondent states that Shell Canada and Eng dealt with local governments taking action to affect practices taking place in other parts of the world. The Respondent argues that here, the legal challenge entails an examination of Canada’s constitution and the extent to which it can protect the freedoms of individuals in jurisdictions in Canada including Toronto. The consequences of the constitutional challenge are national in scope. This, the Respondent argues, creates the nexus between the challenge to Bill 21 and the City of Toronto and its residents.

[43] I am not satisfied that the Shell Canada and Eng decisions are distinguishable. Here, the By-Law provides funding to challenge legislation passed by the Quebec legislature. Bill 21 has no extra-territorial effect and does not apply to Torontonians. I am of the view that the dicta of the majority in Shell Canada and in Eng applies to the circumstances of this case. Like apartheid and shark finning, there is nothing to suggest that Bill 21 “affects the ability of Torontonians to live together as an urban community”.

[44] I have considered whether the constitutional challenge of Bill 21 may have a valid municipal purpose because if the challenge is unsuccessful, it may pave the way for the Ontario government to enact similar legislation. If similar legislation could be passed in Ontario, this may affect the ability of Torontonians who are provincial employees from wearing religious items in the workplace. It is my view that this is too speculative a basis to ground the By-Law in a legitimate power set out in s. 8 of the COTA. If the province of Ontario attempted to pass such a law, the City of Toronto may very well have the power to pass a by-law that provides funding of a constitutional challenge to the legislation. In those circumstances, the citizens of Toronto would be affected by the law and a by-law funding the challenge may be found to be in the social and economic interests of Torontonians. However, in my view, a challenge to a law in a foreign jurisdiction that has no effect on Torontonians, goes beyond the powers granted to the City.

[45] I am unable to conclude that the By-Law has as its purpose the “economic and social well-being” of Torontonians. In applying the broad and deferential approach, I find that the By-Law as it relates to funding the legal challenge to Bill 21 does not fall within the powers as set out in s. 8 of the COTA.

[46] The Respondent also argues that its power to pass the by-law is based on s. 83 of the COTA which provides the authority to the City to give grants within and outside the jurisdiction. Section 83 is found under the section heading “Economic Development”. The purpose of s. 83 is seen from the sections preceding and following it, which deal with grants to support to business and commercial ventures: Holyday v. City of Toronto, 2010 ONSC 3355 (Div. Ct.), at paras. 40-46. I am of the view that the power to provide grants relates only to the City’s economic development. Section 13.2 provides that section 8 does not authorize the City to make a grant or loan. There is no suggestion that the contribution towards the legal challenge to Bill 21 relates to the economic development of Toronto.

[47] The Applicant argues that section 11(1) of the COTA is another basis for finding that the By-Law is illegal. That section provides that a by-law is without effect to the extent that it conflicts with a provincial or federal Act. Section 11(2) provides that there is a conflict if the by-law “frustrates the purpose of the Act.” The Applicant states that the By-Law provides funding to challenge a law passed by another province and is therefore the By-Law’s intent to frustrate the purpose of Bill 21. The Applicant states that the principle of comity supports its position that the By-law does not have a valid municipal purpose. Comity is based on the respect for and deference to the laws of other jurisdictions. The Applicant argues that Bill 21 was passed by a democratically elected National Assembly in Quebec. The By-Law provides for a democratically elected municipal council to give money to a group that is opposing the law passed by a democratically provincial legislature.

[48] The Respondent argues that the By-Law does not frustrate the purpose of Bill 21. The By-Law provides for funding of the legal challenge to determine whether Bill 21 is constitutionally valid. If the Bill withstands the challenge, it will be in force in Quebec and the By-Law will not be in conflict. If the Bill does not withstand the challenge, it is not a valid law of a provincial legislature and will be struck. Again, in those circumstances, the By-Law would not be in conflict with the Quebec law. The Respondent also states that comity applies only with respect to laws that are legitimately taken within its territory. The constitutional challenge must be resolved before the principle of comity can be implicated.

[49] It is my view that it is beyond Toronto’s authority to fund a legal challenge to Bill 21 which was passed by the National Assembly of Quebec. The legislation applies only to citizens of Quebec and does not have an extra-territorial reach. It is subject to a constitutional challenge that is proceeding in the courts of Quebec. Toronto City Council may be of the view that the Quebec Law does not accord with the values of Torontonians however, in my view, the funding of a group that is legally challenging the Quebec legislation in the Quebec courts is not a valid municipal purpose.

[50] I conclude that the part of the By-Law that provides funding to groups challenging the constitutionality of Bill 21, is not for a valid municipal purpose and is ultra vires of the COTA.

DISPOSITION

[51] For the reasons set out above, I am satisfied that the part of the By-Law that provides for funding of up to $100,000 towards the legal challenges to Bill 21 is ultra vires to the COTA and is of no force or effect. I grant the order requested and quash this part of the By-Law.

[52] The Applicant is successful on this Application and is entitled to his costs. Following the oral hearing, the parties were encouraged to come to an agreement as to costs. On May 4, 2023, I was advised that the parties agreed that the successful party would receive its costs fixed in the amount of $15,000 inclusive of counsel fee, disbursements and H.S.T. I award costs to the Applicant fixed in the amount of $15,000.

[53]

Date: July 13, 2023 W.S. Chalmers J.