COURT OF APPEAL FOR ONTARIO

CITATION: Georgina (Town) v. Blanchard, 2016 ONCA 122

DATE: 2016-02-12

DOCKET: C60424

Hoy A.C.J.O., Pardu and Roberts JJ.A.

BETWEEN

The Corporation of the Town of Georgina

Respondent

and

Marvin Blanchard and 1124123 Ontario Limited

Appellants

AND BETWEEN

Marvin Blanchard, 1124123 Ontario Limited and Baldwin 33, Inc.

Appellants

and

The Corporation of the Town of Georgina, Her Majesty the Queen in Right of Ontario and the Ontario Aggregate Resources Corporation

Respondent

Counsel:

Lawrence Hansen, for the appellants, Marvin Blanchard, 1124123 Ontario Limited and Baldwin 33, Inc.

John R. Hart, for the respondent, The Corporation of the Town of Georgina

Heard: February 2, 2016

On appeal from the judgment of Justice Barry G.A. MacDougall of the Superior Court of Justice, dated April 8, 2015.

ENDORSEMENT

Background

[1] In the course of considering whether to grant the appellants a site alteration permit for a property in Georgina, the respondent, The Corporation of the Town of Georgina, relied on s. 239(2)(f) of the Municipal Act, 2001, S.O. 2001, c. 25 (the "Act") to hold two in camera meetings. That section permits a municipality to depart from the normal requirement that all meetings be held in public if the subject matter being considered is advice that is subject to solicitor-client privilege.

[2] The appellant requested that the respondent appoint an investigator under s. 239.2 of the Act to investigate if the subject matter considered at the in camera meetings indeed fell within the exception in s. 239(2)(f). Consistent with its practice, the respondent appointed Local Authority Services ("LAS"), a division of the Association of Municipalities of Ontario, as investigator and, as in all cases, LAS delegated its duties to the firm of Amberley Gavel Ltd. Brenda Glover, a lawyer, conducted the investigation on behalf of that firm. She concluded that the matter deliberated at the closed meetings was advice that is subject to solicitor-client privilege. The application judge dismissed the appellants' subsequent application to set aside the investigator's report.

[3] The application judge concluded that the effect of ss. 223.16 and 239.2(9) of the Act was that the court could only set aside the investigator's report on the ground of "lack of jurisdiction". He also rejected the appellants' argument that the investigator's reference in one paragraph of her report to a site alteration agreement (as opposed to an application) demonstrated that, in conducting her investigation, the investigator misdirected herself about the purpose and scope of her investigation and therefore exceeded her jurisdiction.

[4] The appellants argue that the application judge made several errors. We address them in turn.

Did the application judge err in concluding that [s. 223.16](https://www.canlii.org/en/on/laws/stat/so-2001-c-25/latest/so-2001-c-25.html) of the [Act](https://www.canlii.org/en/on/laws/stat/so-2001-c-25/latest/so-2001-c-25.html) applied to the investigator?

[5] The appellant's first, and principal, argument is that the application judge erred in concluding that the court could only set aside the investigator's report on the ground of "lack of jurisdiction". Under s. 239.1 of the Act, a person may request that an investigation of whether a municipality was permitted to close all or part of a meeting to the public be undertaken: "(a) by an investigator referred to in subsection 239.2 (1); or (b) by the Ombudsman appointed under the Ombudsman Act, if the municipality has not appointed an investigator referred to in subsection 239.2 (1)."

[6] Section 223.16 provides as follows:

No proceeding of the Ombudsman under this part shall be held bad for want of form, and, except on the ground of lack of jurisdiction, no proceeding or decision of the Ombudsman is liable to be challenged, reviewed, quashed or called in question in any court.

[7] The appellants submit that the lack of jurisdiction limitation in s. 223.16 applies only to investigations in respect of closed meetings conducted by the Ombudsman.

[8] We reject this argument. In our view, it is clear that that the "lack of jurisdiction" limitation also applies to the investigator.

[9] Section 239.2(9) of the Act provides that s. 223.16 (among others) applies "with necessary modifications with respect to the exercise of functions described in this section." "This section" is s. 239.2 and the functions described in s. 239.2 include the function of an investigator "to investigate in an independent manner, on a complaint made to him or her by any person, whether the municipality or a local board has complied with section 239 … in respect of a meeting or part of a meeting that was closed to the public, and to report on the investigation" (emphasis added).

[10] The investigator was appointed pursuant to s. 239.2 and exercised the function described in that section. Section 223.16 therefore applies "with necessary modifications".

[11] The necessary modifications in this context are to substitute "investigator" for "Ombudsman", and "report" for "decision". We therefore agree with the application judge that the effect of ss. 223.16 and 239.2(9) is that, in the face of a challenge arising out of the investigator's exercise of her function under s. 239.2, the court can only set aside the investigator's report on the ground of the investigator's lack of jurisdiction.

[12] Given our conclusion on this issue, we need not address the appellants' arguments seeking to challenge the exercise by the investigator of her function under s. 239.2 other than on the ground of lack of jurisdiction.

Did the application judge err in concluding that the investigator's reference to a site alteration agreement (as opposed to an application) in her report was a misdescription and likely a typographical error?

[13] The appellants' second argument is that the application judge erred in concluding that the investigator's reference to a site alteration agreement in one paragraph of her report was simply a misdescription and likely a typographical error. They renew their argument below that this reference demonstrates that the investigator misdirected herself about the purpose and scope of her investigation and therefore exceeded her jurisdiction.

[14] We reject this argument. It is clear from the investigator's report as a whole that the investigator understood that the matter before the respondent was a site alteration application, and not a site alteration agreement. The appellants have failed to establish lack of jurisdiction.

Should the investigator's report be set aside because the municipality did not prove compliance with its duties under the [Act](https://www.canlii.org/en/on/laws/stat/so-2001-c-25/latest/so-2001-c-25.html) in appointing the investigator?

[15] The appellants' third argument is that, even if the limitation in s. 223.16 applies to the investigator, such that the exercise by the investigator of her function under s. 239.2 cannot be challenged other than on the basis of lack of jurisdiction, it does not apply to the respondent municipality. They argue that the investigator's report accordingly can and should be set aside because the respondent had a duty to demonstrate that it complied with s. 239.2(3) of the Act in appointing the investigator and it failed to discharge that duty. They submit that the respondent must prove the particular expertise of the investigator to investigate and advise whether the advice given in the closed meeting was subject to solicitor-client privilege.

[16] Assuming but not determining that s. 223.16 does not limit the ability of an affected party to seek to set aside an investigator's report because of a municipality's non-compliance with s. 239.2(3), we nonetheless do not give effect to this argument.

[17] Section 239.2(3) requires that, in appointing an investigator, "the municipality shall have regard to, among other matters, the importance of the matters listed in [s. 239.2(5)]". Those matters are: "(a) the investigator's independence and impartiality; (b) confidentiality with respect to the investigator's activities; and (c) the credibility of the investigator's investigative process."

[18] In oral submissions, the appellants concede that the respondent may well have complied with this section in appointing the investigator. Their argument is that the respondent has failed to prove that it did so. They argue that the respondent must prove the particular expertise of the investigator to investigate and advise whether the advice given in the closed meeting was subject to solicitor-client privilege. However, they provide no authority for their argument that a municipality is required to prove compliance with s. 239.2(3).

[19] We see no basis to impose such an onus on a municipality. Moreover, there is no reason to doubt that the respondent complied with s. 239.2(3). The process in this case was transparent. The investigation was conducted by a lawyer. And, contrary to the appellants' submissions, we would characterize the concept of solicitor-client privilege as a basic one.

Disposition and Costs

[20] For the reasons set out above, we dismiss this appeal. The respondent shall be entitled to its costs of the appeal in the amount of $7500, inclusive of HST and disbursements.

"Alexandra Hoy A.C.J.O."

"G. Pardu J.A."

"L.B. Roberts J.A."