CITATION: Cash Converters Canada Inc. v. Oshawa (City), 2007 ONCA 604
DATE: 20070907
DOCKET: M35386 (C45055)
COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O., FELDMAN and ROULEAU JJ.A.
BETWEEN:
CASH CONVERTERS CANADA INC. and 1151245 ONTARIO INC.
Applicants (Appellants) Moving Parties
and
THE CORPORATION OF THE CITY OF OSHAWA
Respondent (Respondent in Appeal) Responding Party
and
ATTORNEY GENERAL OF ONTARIO and INFORMATION AND PRIVACY COMMISSIONER/ONTARIO
Interveners (Not parties on the motion)
David Sterns for the appellants
David J. Potts for the respondent
Heard in writing: August 20, 2007
On motion for directions following the judgment of the Court of Appeal for Ontario (O’Connor A.C.J.O., Feldman and Rouleau JJ.A.) dated July 4, 2007.
ENDORSEMENT
[1] Following the release of this court’s reasons for judgment dated July 4, 2007, counsel for the parties settled the order of the court, which was issued on July 17, 2007.
[2] On July 16, 2007, the town council met and passed by-law 95-2007 removing the sections of by-law 120-2005 that were struck down by this court, substituting the text: “Deleted”, and re-enacting the balance of that by-law including s. 22(f), the licensing fee.
[3] The appellant objects to the confirmation or re-enactment of s. 22(f) of by-law 120-2005 and has moved for an order amending the Order dated July 4, 2007 to include an order striking down s. 22(f) of the original by-law.
[4] The appellant submits that although this court did not strike down the license fee provision of the impugned by-law, the reasons for judgment make it clear that because the basis for the fee was the costs associated with the electronic transmission to the police of private information collected from vendors of second-hand goods by the licensee, once those provisions were struck down, the issue of the lawfulness of the fee had become moot. The appellant submits further that the reasons of the court demonstrate that the respondent was not entitled to re-enact that section of the by-law.
[5] After receiving and considering written submissions from both parties, the motion is dismissed for the following reasons.
[6] The court dealt with the challenge to s. 22(f) of the by-law in paragraphs 55, 56 and 57 of the reasons which provide:
- Is the transaction fee authorized under the Act?
[55] Section 22(f) of the by-law imposes a fee on licensed second-hand goods dealers of up to $1.00 per transaction. The city relies on s. 150(8) of the Act, which allows the city to impose “special conditions” for a business license, and on s. 150(9) that restricts the total fees that can be charged for a license to the “costs directly related to the administration and enforcement of the by-law….” The appellants challenge s 22(f) on the basis that it does not specifically authorize a volumetric fee as required by the Supreme Court of Canada in three cases, Re Kirkpatrick and District of Maple Ridge (1986), 1986 25 (SCC), 30 D.L.R. (4TH) 431; Montreal (City) v. Civic Parking Centre Ltd. 1981 214 (SCC), [1981] 2 S.C.R. 541; The Longueil Navigation Company v. City of Montreal (1889), 1888 32 (SCC), 15 S.C.R. 566.
[56] The application judge was not referred to these Supreme Court cases and decided the issue based on the application of s. 150(9).
[57] As I would declare of no effect the sections that mandate the transmission of the collected personal information to the police, the transaction fee provision becomes moot on this appeal. Furthermore, if the city were to reintroduce a licensing by law that does not conflict with s. 28(2) of MFIPPA, it will do so under the new Municipal Act that came into effect on January 1, 2007. Under the new provisions, s. 150(2) of the Act has been repealed and replaced with new licensing powers and s. 150(9) has been repealed and replaced with new provisions regarding licensing fees. In those circumstances, it is unnecessary to address this issue.
[7] It is clear from these reasons that having struck down the provisions dealing with the collection and electronic transmission of certain personal information to the police, the court considered the issue of whether the transaction fee based on those provisions was authorized under the Municipal Act, 2001 to be moot, and for that reason did not decide the issue. The town council has now enacted an amending by-law under its current authority, the Municipal Act, 2001, as amended, which includes the same transaction fee. Because the amending by-law is enacted under a significantly amended statute and is no longer premised on the recovery of electronic transmissions costs, the authority to enact the amended by-law and the licensing fee was not addressed by this court in its judgment, nor could it have been. As indicated in paragraph 57 of the reasons, s. 150(9) of the Municipal Act, 2001 has been repealed and replaced with new provisions regarding licensing fees. It would serve no purpose for this court to address the licence fee issue under the former provisions.
[8] The motion is therefore dismissed.
Signed: “D. O’Connor A.C.J.O.”
“K. Feldman J.A.”
“Paul Rouleau J.A.”