CITATION: Fraser v. Shuniah (Township), 2007 ONCA 235

DATE: 20070330

DOCKET: C45615

COURT OF APPEAL FOR ONTARIO

RE:

JOHN PETER FRASER (Applicant/Respondent in Appeal) – and – THE CORPORATION OF THE TOWNSHIP OF SHUNIAH (Respondent/Appellant)

BEFORE:

LABROSSE, LANG and ROULEAU JJ.A.

COUNSEL:

David G. Boghosian

for the appellant

Francis J. Thatcher

for the respondent

HEARD & RELEASED ORALLY:

March 28, 2007

On appeal from the order of Justice Helen M. Pierce of the Superior Court of Justice dated June 1, 2006.

E N D O R S E M E N T

[1] The issue to be determined on this appeal is whether a municipality can fund an application brought by the Reeve of the township as an “elector” under the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50 (“MCIA”) to determine whether a municipal councillor is in a conflict of interest. It involves the statutory interpretation and interaction between various provisions of the MCIA and of the Municipal Act, 2001, S.O. 2001, c. 25.

[2] In concise reasons, the application judge determined that it could not. In our view, the appeal must be dismissed.

[3] Section 5 of the MCIA requires disclosure of conflicts of interest and restricts members of council from voting or taking part in discussion if they are in a position of conflict. Sections 8 and 9 permit an “elector” to bring an application before a judge to determine if a member of council has contravened s. 5. As correctly found by the application judge, the Township of Shuniah is not an elector. It should be noted that the township does have recourse under s. 274 of the Municipal Act, 2001 to seek a judicial inquiry into certain matters.

[4] However, the Reeve of the township is an elector. The question is whether the township can fund the Reeve’s application. The township relies on ss. 107 and 444 of the Municipal Act, 2001. Those sections must be interpreted in light of the decision in Santa v. Thunder Bay (City) (2003), 2003 21828 (ON SC), 66 O.R. (3d) 434 (S.C.J.), aff’d [2004] O.J. No. 1241 (C.A.). In that case, it was held that a municipality could only reimburse a member of council if it was for activity carried out in the course of the member’s office.

[5] As the application under the MCIA is clearly outside the ambit of the Reeve’s duties, the township does not have the authority to provide the funding. It would be contrary to Santa and s. 283 of the Municipal Act, 2001.

[6] For these reasons, we agree with the conclusion of the application judge and need not address the argument on s. 444 of the Municipal Act, 2001.

[7] The appeal is dismissed, with costs fixed at $6,000, all inclusive.

“J.M. Labrosse J.A.”

“S.E. Lang J.A.”

“Paul Rouleau J.A.”