Court File and Parties

Citation: Drake v. Stratford (City), 2011 ONCA 98

Date: 2011-02-08

Docket: C52172

Court of Appeal for Ontario

Before: Sharpe, Blair and Rouleau JJ.A.

Between:

Thomas Glen Drake and David Hugh Drake Applicants (Appellants)

and

The Corporation of the City of Stratford Respondent (Respondent in Appeal)

Counsel: D. Andrew Thomson, for the appellants Michael A. Van Bodegom and Daniel W. Veinot, for the respondent

Heard: February 1, 2011

On appeal from the judgment of Justice L.C. Templeton of the Superior Court of Justice dated April 29, 2010.

Endorsement

[1] This appeal arises from a dispute between the appellants and the respondent City regarding access to Joffre Street, a municipal street that ends in a cul-de-sac, bordered by a grassy strip of land owned by the City, at the back of the appellants’ property. The appellants wish to access the back of their property from Joffre Street to facilitate a building project. This would involve crossing the grassy strip of land owned by the City that separates the appellants’ property from the Joffre St. cul-de-sac.

[2] The appellants’ request was first considered by the City’s Public Works Sub-Committee which recommended that they be allowed access. However, the issue was then referred to the Public Works Committee, consisting of all members of Council, which recommended against the appellants’ request. That recommendation was accepted by City Council and the appellants’ request was denied.

[3] The appellants brought an application for an order pursuant to rule 14.05 (2) and the Municipal Act, 2002, declaring the resolution denying their request to be invalid and of no force and effect and other related relief.

[4] The application judge found that the grassy strip separating the appellants’ property from Joffre Street was City property that did not form part of the street and that the appellants had no right to use it to gain access to their property. However, the application judge concluded that the City Council resolution denying the appellants’ request was tainted by bad faith on the ground that “the process lacked the candour, frankness and impartiality that is required of municipal bodies” because:

• notice of the proceedings had been given only to neighbours who had complained; • the appellants were not given access to letters and complaints submitted to the City; and • the Public Works Committee and/or Council considered objections relating to the installation of a permanent driveway which was not what the appellants had requested.

[5] The application judge ordered that the appellants’ request for access be recommenced on full notice to all residents in the area and that the applicants and objectors be afforded a full right of disclosure of material evidence to be considered by the deciding body.

[6] The appellants appeal the application judge’s dismissal of their claim to a right of access and the City cross-appeals the order nullifying the resolution denying the appellants’ request and ordering further proceedings

Analysis

1. Did the application judge err in finding that the appellants had no right of access?

[7] The appellants submit that when a private owner conveyed to the city the property for the Joffre St. cul-de-sac in 1954, there was dedication by the owner and acceptance by the City of the entire parcel as a public road.

[8] We are unable to accept that submission. The City by-law enacted at the time of the conveyance from the private owner in 1954 accepted as part of Joffre St. only a specifically described parcel of land. It is common ground that the parcel of land as described in the by-law excluded the grassy strip that is at issue in this appeal. In our view, the combined effect of the conveyance and the by-law was to transfer the entire parcel to the City but to limit the City’s acceptance of the parcel as a public road to that portion of the lands so described.

[9] The City’s acceptance of only part of the conveyed land as a public road is confirmed by the usage in the succeeding years. Only part of the parcel is paved and used as a public road and the City has consistently maintained that the grassy strip is a distinct piece of city property that does not form part of the public road.

[10] The appellants rely on Stager v. Muskoka Lakes (Township) (1989), 1989 CanLII 4176 (ON SC), 71 O.R. (2d) 126 (Div. Ct.). That case is distinguishable. In the case at bar, the municipal by-law shows that only a portion of the lands conveyed by the former owner were accepted for purpose of creating Joffre St. and only the portion accepted became a public road.

[11] Accordingly we reject the submission that the application judge erred by finding that the grassy strip did not form part of Joffre St.

2. Did the trial judge err in finding that the City’s consideration of the appellants’ request for permission to access Joffre St. was tainted by bad faith?

[12] We agree with the City that the application judge appears to have misapprehended the evidence as to what occurred before the Council. With respect to the notification of other parties she confused or conflated the request and issue before her and the appellants’ earlier request in 2005 for permission to access the Joffre Street.

[13] We also agree with the City that the application judge erred by weighing in her determination that the entire process was deficient because of the alleged procedural defects that occurred before the Public Works Sub-Committee. As the appellants were successful before the Sub-Committee we fail to see how any defect in the process at that level infected the outcome before the Council.

[14] We see no basis in the record for the application judge’s conclusion that the Public Works Committee and/or Council were diverted from their task by considering objections relating to the installation of a permanent driveway rather than the request for temporary access. That contention is not supported by the evidence including the minutes of the meetings.

[15] More fundamentally, it is our view that the application judge erred by applying standards of procedural fairness that are more applicable to an adjudicative body than to the proceedings of an elected municipal council. The Council is an elected legislative body. It was under no statutory or common law duty to provide a quasi-judicial hearing to the appellants who were requesting access over the City’s property.

[16] In any event, the appellants attended three meetings of Council or Council committees and they were afforded the opportunity to make submissions. They were permitted to file detailed written submissions and they did not object at any time to the process adopted at the various meetings they attended. They did not request adjournments, nor did they ask the City to take any other procedural step in the course of these various meetings.

[17] The appellants were afforded the opportunity to present their case and the opportunity they were afforded was sufficient to satisfy any duty imposed on the City and to displace any suggestion of bad faith on the part of the City.

Disposition

[18] Accordingly, we dismiss the appeal, allow the cross-appeal and set aside paragraphs 2 and 3 of the application judge’s order. The City is entitled to its costs of both the application and the appeal fixed at $20,000 for the application and $12,000 for the appeal, both sums inclusive of disbursements and applicable taxes.

“Robert J. Sharpe”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”