COURT OF APPEAL FOR ONTARIO

CITATION: Seguin (Township) v. Hamer, 2014 ONCA 108

DATE: 20140211

DOCKET: C57449

Juriansz, Pepall and Pardu JJ.A.

BETWEEN

The Corporation of the Township of Seguin

Applicant (Appellant)

and

Dennis Neil Hamer

Respondent (Respondent in Appeal)

Michael M. Miller, for the appellant

Richard A. Levin, for the respondent

Heard: January 30, 2014

On appeal from the order of Justice John R. McCarthy of the Superior Court of Justice, dated July 8, 2013.

ENDORSEMENT

[1] The Township of Seguin (the Township) appeals the dismissal of its application for an injunction to restrain the respondent from, among other things, feeding any bears, contrary to By-law 2012-049 (the By-Law), and the granting of the respondent’s counter-application quashing the By-law.

[2] The Township’s application was supported by evidence that the respondent had breached the By-law by feeding bears and doing so by hand.

[3] We find it unnecessary to deal with the Township’s argument that the respondent’s counter-application was statute barred because it was filed more than a year after the By-law was enacted.

[4] The appeal must be allowed on the merits.

[5] The application judge accepted the respondent’s submission that a municipality is obliged to act in good faith to enact a valid by-law. While that is so, a by-law is presumed to be valid and enacted in good faith. The onus is on the person attacking it to establish the municipality acted in bad faith: Grosvenor v. East Luther Grand Valley (Township), 2007 ONCA 55 at para. 28. As the application judge stated: “the standard to be met in establishing bad faith is high and … courts should be slow to find bad faith in the conduct of democratically elected representatives acting under legislative authority.”

[6] The respondent stressed that the Township did not point to any investigation, research or analysis to support the By-law's rationale and submitted this absence was sufficient to establish it acted without the requisite good faith.

[7] We agree with the comments of Twaddle J.A. of the Manitoba Court of Appeal in Mr. Pawn Ltd. v. Winnipeg (City), 2002 MBCA 2, 170 Man. R. (2d) 1, at para. 11:

City Council is a legislative body, not a court. It must, of course, act within the authority conferred on it and, in doing so, enact its by-laws in good faith and not for an improper purpose. There is, however, no requirement that Council have evidence of anything before enacting a by-law. In particular, there is no requirement that Council have evidence of potential harm before enacting a by-law designed to prevent such harm. Council can enact laws within its authority on whatever information it chooses, be that information placed before it by evidence or representation or even information within councillors’ own knowledge.

[8] As Laskin J.A. explained in Equity Waste Management of Canada v. Halton Hills (Town) (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321 (C.A.), at p. 340:

Bad faith by a municipality connotes a lack of candour, frankness and impartiality. It includes arbitrary or unfair conduct and the exercise of power to serve private purposes at the expense of the public interest…

[9] The respondent's evidence fails to establish anything resembling bad faith in this case.

[10] The Township indicated in the By-law’s recitals that it was motivated by a concern that "intentional human artificial feeding of bears causes an escalation in a threat to public health, safety and well being [sic] of the residents and visitors of the Township of Seguin.”

[11] Thus, the By-law on its face addresses concerns well within the Township's power to enact and competence.

[12] It seems to us the respondent's evidence seeks to have the court engage in a review of the wisdom of the By-law. This the court cannot do.

[13] The appeal is allowed, the order below quashing the By-law is set aside, and a permanent injunction shall issue restraining the respondent from deliberately feeding any bear or providing access to food to any bear or placing or storing any “attractants”, as defined by the By-law, outdoors for the purpose of attracting or feeding any bear.

[14] The appellant is entitled to its costs of the motion in the amount fixed by the motion judge in favour of the respondent. Costs of the appeal in favour of the appellant are fixed in the amount of $5000.00 all inclusive.

“R.G. Juriansz J.A.”

“S.E. Pepall J.A.”

“G. Pardu J.A.”