COURT OF APPEAL FOR ONTARIO
CITATION: Ashfield-Colborne-Wawanosh (Township) v. Central Huron (Municipality), 2012 ONCA 111
DATE: 20120221
DOCKET: C54755
Weiler, Sharpe and Blair JJ.A.
BETWEEN
Township of Ashfield–Colborne-Wawanosh, The Municipality of Bluewater, The Corporation of The Town of Goderich, The Corporation of The Township of Howick and The Municipality of Morris-Turnberry
Applicants (Respondents)
and
The Municipality of Central Huron, The Corporation of The County of Huron, The Municipality of Huron East, The Township of North Huron and The Municipality of South Huron
Respondents (Appellants)
Alan R. Patton and Analee J. M. Fernandez, for the appellants
Christopher J. Williams and Jody E. Johnson, for the respondents
Heard: January 31, 2012
On appeal from the judgment of Justice K.A. Gorman of the Superior Court of Justice, dated November 18, 2011, with reasons reported at 2011 ONSC 6849.
Sharpe J.A.:
[1] This appeal concerns the interpretation of By-law 28 of 1999 (“By-law 28”), enacted by the respondent corporation of the County of Huron (“Huron”) to determine the representation of lower tier municipalities on the County Council.
FACTS
[2] Huron is comprised of nine townships, all of which were joined as parties in this application. Four now challenge the application judge’s interpretation of By-law 28.
[3] By-law 28 was enacted pursuant to the Municipal Act, R.S.O. 1990, c. M.45, s. 26. That section, since amended, provides that a county council could “by by-law, change the composition and number of votes given to any member” and establishes conditions for the enactment of such a by-law. By-law 28 provides as follows:
WHEREAS representation on the council of a county is determined under authority of the Municipal Act, R.S.O. 1990;
WHEREAS under the authority of the Municipal Act, R.S.O. 1990; Chapter 45, Section 26, the council of a county may, by by-law, change the composition and size of the council and the number of votes given to any member; and
WHEREAS the County and its constituent municipalities are approving restructuring plans for most of its municipalities with a proposed restructuring date of January 1, 2001.
THEREFORE under the authority of the Municipal Act, R.S.O. 1990; the County of Huron enacts as follows:
- The Council of the County of Huron shall be composed of:
(a) the head of each local council who shall have one vote.
(b) once the local municipality achieves 4,001 electors, the deputy head of each local council who shall have one vote.
I 1. Each local municipality shall be entitled to (a) further representative(s) from the local council on the basis of increments of 4,000 electors.
each additional representative shall have one vote.
By-law No. 17, 1994 and any amendments thereto are hereby repealed.
This by-law shall come into force December 1, 2000 subject to the following conditions being fulfilled by December 31, 1999:
(a) a majority of all votes on county council are cast in its favour.
(b) a majority of the councils of all the municipalities that form part of the county for municipal purposes have passed resolutions consenting to the by-law; and
I the total number of electors in the local municipalities that have passed resolutions referred to in clause (b) form a majority of all the electors in the county.
[4] Following the 2000 municipal elections, by application of the formula in By-law 28, the number of County Council members was determined to be 18. The composition of County Council did not change following the 2003 election. At the 2006 election, however, two additional townships were found to have more than 8000 electors. Accordingly, each gained one representative on County Council, increasing the total number of representatives to 20. At the 2010 elections, it was determined that the number of electors for four townships, Central Huron, Huron East, South Huron, and North Huron, had fallen below the threshold for an additional member. Council’s initial determination was that By-law 28 did not contemplate reducing the number of representatives. Therefore, despite the decline in the number of electors, the four townships could retain the additional number of representatives they had previously gained. A Striking By-law was then passed, appointing 20 members of Council to various boards and committees.
THE APPLICATION
[5] Eight months into the Council members’ term of office, Huron, together with the five townships not faced with the prospect of reduction in representation because of decline in the number of electors, brought this application for a declaration:
confirming the validity of By-law 28;
stating that the Striking By-law is invalid; and
confirming that the composition of County Council should be reduced from 20 to 16 members.
[6] The respondents opposed the application on the grounds that By-law 28 was not properly enacted and that it was not intended to operate “in perpetuity”. The application judge rejected those submissions, found that that By-law 28 was properly enacted and that it continues in force until repealed. She therefore granted the declarations sought.
ISSUES
[7] Before this court, the appellants raise two issues:
Does By-law 28(1)I provide for the reduction in the number of representatives on County Council where the number of electors in a lower tier municipality decreases?
Did the application judge err by nullifying the Striking by-law and removing representatives mid-term?
ANALYSIS
- Does By-law 28(1)I provide for the reduction in the number of representatives on County Council where the number of electors in a lower tier municipality decreases?
[8] The appellants submit that there is nothing in By-law 28(1)I that explicitly provides for the reduction in the number of representatives on County Council. Therefore, once a municipality has acquired an additional representative, that municipality’s representation cannot be decreased due to a decrease in the number of electors below the level required to justify additional representation.
[9] The respondents submit that we should not consider this argument as it was not clearly advanced before the application judge.
[10] I have decided that taking all circumstances into account, including the state of the record before us and the desirability of finality and avoiding of further expense, this is a case where we should decide the issue.
[11] By-law 28 provides that every lower tier municipality is guaranteed at least one representative on the County Council as a floor, and additional representatives where the number of electors reaches the specified incremental level.
[12] The issue posed on this appeal arises only where, following an earlier election, a representative of a lower tier municipally has been added to County Council on the basis of an increment of 4,000 electors, pursuant to By-law 28(1)I. The appellants argue that once a township has gained an added representative, that representation cannot be decreased, even where the township’s population declines below the threshold of an additional 4,000 electors.
[13] I am unable to accept that submission. In my view, By-law 28(1)I must mean that when the number of electors drops below that required increment of 4,000, the added representation is no longer justified and must therefore be reduced. In other words, any additional representation on Council is contingent on the township having, at the time of the election, the number of electors specified. While it is the case that the language of By-law 28(1)I only speaks of “further representatives” and “additional representatives”, it is implicit that there can only be further or additional representatives where the number of electors justifies that added representation.
[14] As the application judge held, By-law 28 applies to all elections that follow its enactment. Following each election, there is a tally of electors in each township, and the formula is applied to determine the extent to which each township is entitled to additional representation, if any. I see nothing in the language of By-law 28(1)I that requires that the starting point for determining representation on Council is the representation following the last election. Simply put, I read By-law 28(1)I as prescribing a formula to be applied afresh after each election which therefore allows for both the addition, and the reduction, of representation.
[15] The appellants point out that under the Municipal Act, s. 219(3), by-laws changing the composition of council do not come into effect until following a subsequent election. This provision was enacted after the passage of By-law 28 and has no application to the facts of this case. The change to the composition of council at issue on this appeal results from the proper interpretation of the applicable by-law that had been enacted years earlier and is not from the retrospective application of a new by-law.
- Did the application judge err by nullifying the Striking by-law and removing representatives mid-term?
[16] The appellants submit that even if, on a proper interpretation, By-law 28(1)I provides for decreasing the number of representatives, the County is topped from decreasing their level of representation on the ground that the additional Council members were sworn in following the 2010 election, before any steps were taken to reduce the representation.
[17] I recognize that the power to quash a by-law is discretionary: see London (City) v. RSJ Holdings Inc., 2007 SCC 29, [2007] 2 S.C.R. 588, at para. 39:
The power to quash a by-law for illegality contained in s. 273(1) of the Municipal Act, 2001 is discretionary. Of course, in exercising its discretion, the court cannot act in an arbitrary manner. The discretion must be exercised judicially and in accordance with established principles of law. Hence, when there is a total absence of jurisdiction, a court acting judicially will quash the by-law. In other cases, a number of factors may inform the court’s exercise of discretion including, the nature of the by-law in question, the seriousness of the illegality committed, its consequences, delay, and mootness.
[18] However, I see nothing in this record that would justify this court allowing Council members who have no legal entitlement to sit on the Council to continue in that capacity simply because the County did not act immediately to reduce the representation in accordance with the By-law’s population formula. The number of representatives to which the Townships are entitled is a matter that must be determined in accordance with the proper legal interpretation of By-law 28. If it was wrong to allow the additional Council members to take a place, the fact that they assumed office cannot make that wrong right.
[19] I disagree with the suggestion that we should decline to uphold the order that effectively removed them from office on the ground that it was “unfair” to remove them. There is nothing unfair in removing someone from office if that individual has no legal right to hold that office. The members of Council who lost their places as a result of the judgment under appeal may well be disappointed. However, I am not persuaded that the Council’s change of position from that reflected in the Striking by-law has produced a situation that would justify departing from the basic principle of representation by population.
DISPOSITION
[20] Accordingly, I would dismiss the appeal with costs to the respondents fixed in the amount agreed to by the parties, namely, $5,000 inclusive of disbursements and HST.
“Robert J. Sharpe J.A.”
“I agree K.M. Weiler J.A.”
“I agree R.A. Blair J.A.”
Released: February 21, 2012