City of Ottawa v. Minister of Municipal Affairs and Housing [Indexed as: Ottawa (City) v. Ontario (Minister of Municipal Affairs and Housing)]
62 O.R. (3d) 503
[2002] O.J. No. 5073
Court File No. 683/02
Ontario Superior Court of Justice
Divisional Court,
E. Macdonald J.
December 13, 2002
Municipal law -- Amalgamation -- Ward boundaries -- Municipality passing by-law establishing new boundaries for wards -- By-law appealed to Ontario Municipal Board -- Minister of Municipal Affairs and Housing issuing Notice of Deferral purporting to stay appeal -- Notice of Deferral quashed -- Minister not having jurisdiction to issue Notice -- Notice of Deferral available for applications but not appeals -- Municipal Act, R.S.O. 1990, c. M.45, s. 25.
Pursuant to the City of Ottawa Act, 1999, S.O. 1999, c. Pr1, local municipalities and the Regional Municipality of Ottawa- Carleton were amalgamated to become the City of Ottawa (the "City"). The Act prescribed a council of a mayor and 21 ward councillors. Acting under the Municipal Act, the City reviewed its ward boundaries and, on July 24, 2002, it passed By-law 2002-316, which prescribed new ward boundaries for the November 2003 elections, for which nominations could be filed beginning January 2, 2003. In August 2002, three residents' associations from the former townships of Osgoode, Rideau and West Carleton appealed the by-law to the Ontario Municipal Board ("OMB"). However, pursuant to s. 25 of the Municipal Act, the Minister of Municipal Affairs and Housing (the "Minister") issued a Notice of Deferral dated October 16, 2002. The Notice of Deferral, which did not contain reasons, stayed the appeal to the OMB. Upon being served with the Notice, the OMB issued an order adjourning the appeals sine die. The City, however, concluded that the Minister had acted without jurisdiction and, by motion, it asked the OMB to resume the proceedings. Concluding that it did not have the jurisdiction to rule on the legal question of the validity of the Notice of Deferral, the OMB dismissed the City's motion. The City then brought an application for judicial review by which it sought an order in the nature of certiorari quashing the Notice of Deferral and declaring it of no legal effect. This would allow the appeal before the OMB to proceed. Leave was granted to hear the application as an urgent matter by a single judge.
Held, the application should be granted. [page504]
The standard of review is correctness because the Minister cannot expand his jurisdiction beyond what s. 25 of the Municipal Act confers. The City was correct in submitting that s. 25 does not authorize the Minister to stay an appeal. By its plain wording, s. 25 empowers the Minister to stay "an application" to the OMB in circumstances in which the Board is exercising an original jurisdiction to consider such matters as the incorporation of the municipality, annexation of municipalities, or dissolution of a municipality. Section 25 did not confer jurisdiction to derail a process to revise ward boundaries pursuant to a by-law enacted by a municipal council. The Minister had a right to appeal the ward boundaries by-law to the OMB under s. 13.1(2) of the Municipal Act if he had valid grounds for objecting to the by-law.
APPLICATION for judicial review.
Cases referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, 243 N.R. 22, [1999] S.C.J. No. 39 (Quicklaw); R. v. Multiform Manufacturing Co., 1990 79 (SCC), [1990] 2 S.C.R. 624, 113 N.R. 373, 1 C.B.R. (3d) 290, 58 C.C.C. (3d) 257, 79 C.R. (3d) 390; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1 Statutes referred to Better Local Government Act, 1996, S.O. 1996, c. 32, s. 3 City Of Ottawa Act, 1999, S.O. 1999, c. Pr1 Direct Democracy Through Municipal Referendums Act, 2000, S.O. 2000, c. 5 Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 6(2) Municipal Act, R.S.O. 1990, c. M.45, ss. 13, 13.1(2), 25 Rules and regulations referred to O. Reg. 407/00 ("City of Ottawa Act") Authorities referred to Ontario, Legislative Assembly, Official Report of Debates (Hansard) (17 October 1996 and 18 November 1996) (Hon. Al Leach)
George H. Rust-D'Eye and Barnet H. Kussner, for applicant City of Ottawa. Leslie McIntosh, for respondent.
Endorsement of E. MACDONALD J.: --
Introduction
[1] The applicant ("City Of Ottawa") seeks leave pursuant to s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, to have this application for judicial review heard on an urgent basis before a single judge of this court. The respondent, Minister of Municipal Affairs (the "Minister") takes no position on the matter of urgency.
[2] At the opening of submissions, I suggested to counsel that this matter be heard by a full panel at the next available date of [page505] either January 2 or 3, 2003. Mr. Rust D'Eye responded saying that these dates are too late because the effect of the Minister's Notice of Deferral, absent of judicial intervention by this court, is to provide that as of January 2, 2003, the City will be obliged to accept nominations for the upcoming municipal elections in accordance with the ward boundaries as they existed prior to the adoption of By-law 2002-316.
[3] The Minister's Notice of Deferral dated October 16, 2002 stays appeals to the Ontario Municipal Board (the "OMB") in respect of By-law 2002-316. The City of Ottawa seeks an order in the nature of certiorari quashing the Notice of Deferral and an order declaring that it is of no legal force and effect.
[4] It is said that a delay, even to January 2 or 3, 2003, is likely to involve a failure of justice for the following reason. The lack of a resolution of this application prior to January 2, 2003 (the opening date for acceptance of nominations for municipal office) will require the City to proceed with pre-existing ward boundaries, thereby defeating the intent of City Council merely by the effluxion of time. The detailed chronology of relevant events, set out below, will demonstrate why this is alleged. In the face of my understanding of these events, I decided to hear the matter on December 6, 2002.
[5] At the conclusion of lengthy submissions, I undertook to release my reasons on an urgent basis to respond to the January 2, 2003 deadline and to give time, even if limited, for the parties to consider their positions as impacted by my disposition of the matter.
Background
[6] Given the time constraints outlined above, these reasons will be brief. The issues emerge from the amalgamation of the Regional Municipality of Ottawa-Carleton (the "Region") and all of the local municipalities within the Region into a single- tier municipal corporation with a single level of government for the entire Region. In this case, the former municipalities became the current City of Ottawa as of January 1, 2001, pursuant to the City of Ottawa Act, 1999, S.O. 1999, c. Pr1.
[7] The City of Ottawa Act is provincial legislation. The government of Ontario prescribed the initial composition of the new city council. The Direct Democracy Through Municipal Referendums Act, 2000, S.O. 2000, c. 5, the City of Ottawa Act and Regulation 407/00 provided that the Ottawa City council would be made up as follows: there would be 21 councillors, with one councillor elected from each of the 21 wards, as well as the mayor who would be elected at large, for a total of 22 council members. Of the 21 councillors, five would be elected to represent each of the five rural wards of the new City of Ottawa. [page506]
[8] The City, acting under powers available to it under Part I of the Municipal Act [See Note 1 at end of document] with respect to the composition of its council and the alteration of its ward boundaries, undertook an extensive process of review and revision of its ward boundaries. This process included investigations by City Staff, the submissions of two reports to City Council and the creation of a Citizens' Task Force. The Citizens' Task Force completed its report of its findings on June 10, 2002.
[9] One of the recommendations of the Citizens' Task Force was to revise ward boundaries to achieve a better balance of representation between the rapidly growing suburban areas of the City and the rural areas.
[10] On June 18, 2002, the City's Corporate Services and Economic Development Committee (the "Committee") held a public meeting to consider the proposed ward boundary revisions. This is required by s. 13 of the Municipal Act. The Committee made recommendations subsequently adopted by City Council at a meeting on June 26, 2002. On July 24, 2002, City Council passed By-law 2002-316 (the "Ward Boundaries By-law") establishing the revised ward boundaries.
[11] The Ward Boundaries By-law prescribes the new ward boundaries which define the boundaries for wards for municipal elections for the new City of Ottawa now scheduled to take place on November 10, 2003.
[12] Commencing on January 2, 2003, nominations may be filed for the next election.
[13] I accept that one of the objectives of the City in passing the Ward Boundaries By-law when it did was to have the boundaries in place for the November 2003 elections and to allow time for any appeal of the by-law to the Ontario Municipal Board before the earliest date for filing nominations, namely, January 2, 2003.
The Appeal to the OMB
[14] In August 2002, the by-law was appealed to the OMB pursuant to s. 13.1(2) of the Municipal Act. The appellants are three residents' associations from the rural areas of the City, the former Townships of Osgoode, Rideau and West Carleton.
[15] The letters of appeal from the three rural communities are contained in the Application Record at pp. 162 to 169. The letters cite grounds of appeal including that the by-law eliminates rural representation on City Council and fails to take into account factors, other than population, as criteria for establishing ward boundaries. [page507]
[16] A pre-hearing conference in respect of the appeal was initially scheduled to take place before the OMB on October 17, 2002. On October 16, 2002, the day before the hearing, Catherine Conrad contacted Stuart Huxley, a lawyer in the City's Legal Services Department, and advised that she was a solicitor representing the Minister of Municipal Affairs and Housing (the "Minister"). She advised Mr. Huxley by telephone that she would be attending the pre-hearing conference and delivering a Notice of Deferral signed by the Minister, Chris Hodgson, pursuant to s. 25 of the Municipal Act. The Notice of Deferral stays the appeals before the OMB. The Notice of Deferral was dated October 16, 2002. [See Note 2 at end of document] If the Notice of Deferral stands, it stops the entire process of City Council in its effort to establish revised ward boundaries in advance of the time for commencement of nominations. The Notice of Deferral is reproduced below:
NOTICE OF DEFERRAL
Pursuant to s. 25 of the Municipal Act, I hereby give notice to the Ontario Municipal Board that the appeals of the Rideau Rural Community Association, the West Carleton Rural Association and the Osgoode Rural Communities Association under s. 13.1 of the Municipal Act (OMB File No. PL020741 -- City of Ottawa wards) are deferred. All proceedings in the appeals are stayed as of the date of this notice until a further notice is given to the Board under section 25 of the Municipal Act.
Dated at Toronto on October 16, 2002.
CHRIS HODGSON
Minister of Municipal Affairs and Housing
[17] The Notice of Deferral contains no reasons. Ms. Conrad did not make any submissions to the Board as to why the Minister issued the Notice of Deferral. On October 30, 2002, in consequence to the Notice of Deferral, the OMB issued a memorandum of oral decision. It reads as follows:
Ontario Municipal Board
Commission des affaires municipales de l'Ontario
The Osgoode Rural Communities Association, the Rideau Community Association Inc. and the West Carleton Association Inc. have appealed to the Ontario Municipal Board under subsection 13.1(2) of the Municipal Act, R.S.O. 1990, c. M.45 as amended against By-law 2002-316 of the City of Ottawa to establish ward boundaries. [page508]
OMB File Number: M020075
APPEARANCES:
Parties Counsel
City of Ottawa T. Marc Rideau Rural Community R. McKinley Association Inc., West Carleton Rural Association [Inc.] and Osgoode Rural Community Association
Ministry of Municipal Affairs and Housing C. Conrad
MEMORANDUM OR ORAL DECISION DELIVERED BY R.G.M.
MAKUCH ON OCTOBER 17, 2002 AND ORDER OF THE BOARD
The Minister of Municipal Affairs and Housing has issued a deferral order staying the proceedings related to this appeal under section 25 of the Municipal Act. No objections were raised by any of the parties.
This matter is therefore adjourned sine die.
It is so ordered.
R.G.M. MAKUCH MEMBER
(Emphasis added)
[18] Although issued on October 30, 2002, the Board's decision was made on the day of the scheduled pre-hearing conference, i.e. October 17, 2002. I note that Member Makuch recorded that no objections were raised by any of the parties. At that time, the City presumed the validity of the Notice of Deferral. Thereafter, the City's Legal Department concluded that the Minister had acted without jurisdiction. Essentially, this conclusion was reached on the basis that s. 25 of the Municipal Act conferred the power to issue of Notice of Deferral in circumstances where the OMB was exercising jurisdiction to hear certain applications under Part I of the Act. It followed that s. 25 did not confer such a power in circumstances where the OMB is exercising appellate jurisdiction in an appeal of the by-law. This conclusion was at the front and centre of the City's position on this application for judicial review.
[19] Based on these concerns about the Minister's jurisdiction, the City's Legal Department asked the OMB to resume the proceedings. A motion was heard on November 12, 2002, at which time the City took the position that the Notice of Deferral was not valid, and did not stay the appeals.
[20] On November 12, 2002, the OMB also heard from lawyers for the Minister and the three residents' associations, who took the position that the proper interpretation of s. 25 was a question of law for [page509] the court to decide, and that, unless a court determined otherwise the Board should presume the validity of the Notice of Deferral.
[21] The Board dismissed the City's Motion. Its reasons, received in the offices of the City's Legal Department on November 25, 2002, are reproduced below:
Ontario Municipal Board Commission des affaires municipales de l'Ontario
The Osgoode Rural Communities Association, the Rideau Rural Community Association Inc. and the West Carleton Association Inc. have appealed to the Ontario Municipal Board under subsection 13.1(2) of the Municipal Act, R.S.O. 1990, c. M.45 as amended against By-law 2002-316 of the City of Ottawa to establish ward boundaries.
OMB File Number: M020075
APPEARANCES:
Parties Counsel
City of Ottawa T. Marc Rideau Rural Community R. McKinley Association Inc., West Carleton Association Inc. and Osgoode Rural Communities Association Inc.
C. Conrad and S. Gray Ministry of Municipal Affairs and Housing
MEMORANDUM OF AN ORAL DECISION ON A MOTION TO CONTINUE THE HEARING DELIVERED BY R.D.M. OWEN AND R. MAKUCH ON TUESDAY NOVEMBER 13, 2002 AND ORDER OF THE BOARD
At the commencement of a Pre-hearing conference on October 17, 2002 the Board was served with a Notice of Deferral executed by the Minister of Municipal Affairs and Housing under Section 25 of the Municipal Act. The Notice stayed all proceedings in the appeals before the Board of a by-law of the City of Ottawa that revised the ward boundaries of the City. At that time no one objected and the Board adjourned the appeal sine die.
In late October the Board received a request from the City of Ottawa to continue the hearing, challenging the validity of the Minister's Notice of Deferral. The Board set this date for a motion.
The Board has considered the submissions of all counsel and the material filed. There were a number of grounds argued both in support and in opposition to the City's motion to continue the hearing. The Board will not review these, as one ground, in itself, is fatal to the City's request.
The City's motion before the Board requests the Board to continue the hearing process in the face of the Minister's Notice of Deferral (the stay) issued pursuant to s. 25 of the Municipal Act. In order to do this, it is clear to the Board that it would have to determine whether the Minister's stay was valid and in doing so interpret s. 25 of the Municipal Act. This is a question of law.
The Board is persuaded by the reasoning and the direction of the Ontario Divisional Court in the case of City of Toronto v. Goldlist Properties et al. (2002) 43 O.M.B.R. 1. [page510] The Board finds that this matter is analogous to that case. The Board will rely on certain excerpts of the case in support of its reasons dismissing the motion of the City. In order to proceed with this hearing, the Board is being asked to either ignore the Notice of Deferral that stays the Board's proceedings or find that the issuance of the Notice was not a valid exercise of the Minister's power under section 25 of the Act. The matter that is before the Board, on its merits, is an appeal of a by-law of the City of Ottawa to establish revised ward boundaries. While the Board has the power pursuant to section 35 of the Ontario Municipal Board Act to determine all questions of fact and law, this power must be exercised only when questions of law are necessary or incidental to the exercise of its underlying jurisdiction -- in this case to decide the merits of the ward boundary by-law.
To cite the Goldlist case at page 17, paragraph [52]:
There is a difference between the Board's dealing with a legal issue that arises as a necessary or incidental aspect of a matter that is within the Board's jurisdiction to determine (here the merits of the ward boundary by-law)1 and the Board's dealing with a legal issue that arises outside of the ambit of its jurisdiction, but happens to relate to the subject of the by-law (here the Minister's authority to stay the Board's proceeding)2
[1. Board comment (footnotes in original).
2 Ibid.]
Similar to the Court's findings in the Goldlist case speaking to the Board's powers at page 19, paragraph [58], this Board has no supervisory jurisdiction over the Minister's legislative competency and the exercise of his powers under Section 25 of the Act. The Board's role in this matter is to determine the merits of the ward boundaries proposed in the by-law before us. It is not to embark on a review of the Minister's authority to issue the Notice of Deferral staying the Board's proceedings. That is completely extraneous to the jurisdiction of the Board in considering the merits of the by-law. It in no way touches upon the merits of the appeal that is before us. For this Board to decide the proper interpretation of section 25 of the Municipal Act and whether the Minister's action in issuing the Notice of Deferral was valid goes beyond any "necessary or incidental" question of law which the Board may decide in the exercise powers under the Ontario Municipal Board Act. The Board concurs with Counsel for the Minister that the Board must assume the validity of the Minister's Notice (until such time as a determination is made by the Superior Court of Justice.
Accordingly, the motion of the City of Ottawa is dismissed. This is the order of the Board.
R.D.M. OWEN VICE-CHAIR
"R.G.M. MAKUCH"
R.G.M. MAKUCH MEMBER
[22] This decision brings the parties to this court. The Board found that the Board's mandate is to determine the merits of the [page511] ward boundaries proposed in the by-law. It is not to embark on a review of the Minister's authority to issue the Notice of Deferral staying the Board's proceedings.
[23] Before dealing with the standard of review, I comment on one issue that fuelled controversy in this application. The City objects to the content of the affidavit of Scott Gray, filed on behalf of the Minister. Mr. Gray is a lawyer employed by the Minister. His affidavit advocates the Minister's position and opines on the very issues that are before this court. It mirrors the content of the Minister's factum and the submissions made by Ms. McIntosh.
[24] Being alert to the nature of the affidavit, I find it useful in that it provides context from the Minister's perspective, but its "spin" is apparent. It attempts to justify the stay. Paragraph 24 is particularly striking. It summarizes the reasons why the Notice of Deferral was delivered. They are said to be:
In this case, the notice of deferral was given for the following reasons:
(i) The City of Ottawa is still in its infancy. It is too early to determine (less than one full term of office) how well the ward system is working.
(ii) The existing wards took into account the boundaries of the municipalities that existed prior to the establishment of the new City of Ottawa to ensure the opinions of these communities would be heard at city council. Alterations of these boundaries may reduce the ability of these distinct communities to be heard at city council.
(iii) There is a need for another evaluation of the manner in which rural areas are represented on municipal councils.
[25] Aside from the fact that no factual basis is offered to support these reasons, para. 24 of the factum begs the question of why these reasons were not disclosed by the Minister at any time before the scheduled pre-hearing conference. If they had been, parties affected by them would have had the opportunity to test their validity. It also begs the question of why the Minister did not appeal the by-law, as he could do under s. 13.1(2), reproduced below in para. 29. The absence of a timely opportunity to test the validity of the Notice of Deferral is one of the factors foremost in my mind when I consider the issues in this application.
The Standard of Review
[26] I reject the submission that the Minister's act in issuing the Notice of Deferral is entitled to deference. This case is different from those authorities wherein the existence of ministerial discretion is not challenged as it is here. [See Note 3 at end of document]
[27] The standard of review is correctness. This is so because the Minister, purporting under s. 25 of the Municipal Act did [page512] so without jurisdiction. He cannot expand his jurisdiction beyond what the Act confers. There is no deference to the Minister in these circumstances. Section 25 reads:
- The Minister may give notice to the Municipal Board that in his or her opinion any application to the Board made under this Part should be deferred and all proceedings in any such application are stayed until the Minister gives notice to the Board that they may be continued.
[28] I agree with [the] submission of the City that s. 25 does not authorize the Minister to stay an appeal to the Board from a by-law duly enacted by the City pursuant to the express mandate to revise its own boundaries. I read s. 25 taking into account its plain and unambiguous language and the legislative intent that underlies it. [See Note 4 at end of document] Section 25 empowers the Minister to stay an application to the board, in circumstances in which, by definition, the Board is exercising an original jurisdiction to consider such matters as the incorporation of a municipality, annexation of municipalities, or dissolution of a municipality. It cannot be that s. 25 confers on the Minister discretion to derail a process, conferred upon the City by the 1996 legislative regime, to revise or establish its own ward boundaries. Nor can it be that the Minister, purporting to act under s. 25, has discretion to thwart the decision of a democratically elected council, by indefinitely staying the hearing of the three appeals. There are unsettling overtones of ambush present because the Minister's act, in delivering the Notice of Deferral when he did, has the effect of preventing the appeals from being heard. But the timing is not the only concern of this court.
[29] The Minister's right of appeal, like that of the three residents' associations, is contained in s. 13.1(2) of the Municipal Act, which states:
13.1(2) Appeal -- Within 20 days after the clerk gives notice of the by-law, the Minister or any other person or agency may appeal to the Municipal Board by filing with the clerk a notice of appeal setting out any objection to the by- law and the reasons in support of the objection.
[30] In the context of Part I of the Municipal Act, original jurisdiction is conferred upon City Council to establish its own ward boundaries through the adoption of a by-law under s. 13(4). [page513] Appellate jurisdiction is conferred upon the Board by giving any interested party, including the Minister, the right to appeal the by-law under s. 13.1(2).
[31] As a matter of law, the Notice of Deferral (and the underlying decision to deliver the same) cannot give rise to a presumption of legal validity. The Minister's position on this application is that the word "application" in s. 25 ought to be interpreted to include an "appeal" under s. 13.1 of the Municipal Act. Four reasons are proffered for this assertion. They are:
(i) the legislative history of the sections;
(ii) the fact that the terms "application" and "appeal" are used interchangeably in the Municipal Act and in related statutes;
(iii) the purpose of s. 25 of the Municipal Act; and
(iv) the principles of statutory interpretation.
[32] I cannot accept this submission. To my mind, it undermines the entire scheme of the Municipal Act particularly when one looks at what the legislature set out to achieve when it embarked on the implementation of consolidation of regional municipalities. I am comforted in this conclusion by reference to the Better Local Government Act, 1996, S.O. 1996, c. 32, s. 3 which empowered municipalities to decide for themselves whether they wished to establish ward systems or to revise or dissolve existing wards. [See Note 5 at end of document] The Better Local Government Act did not amend or repeal s. 25 of the Municipal Act nor was s. 13.1 made subject to that provision.
[33] For all of the above reasons, I have concluded that the Minister acted without jurisdiction. Relief is granted as requested in paras. 1a and b of the Notice of Application. The Notice of Deferral is quashed. It has no legal force and effect. Costs are awarded to the City. The parties may make written submissions on quantum and scale before January 15, 2003.
Order accordingly.
[page514]
Notes
Note 1: Municipal Act, R.S.O. 1990, c. M.45, as amended.
Note 2: I do not overlook the fact that during the entire period of consultation and following the enactment of By-law 2002-316 in July 2002, there was silence from the Minister.
Note 3: See Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, [1999] S.C.J. No. 39 (Quicklaw), at para. 27 and Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, 208 D.L.R. (4th) 1.
Note 4: See R. v. Multiform Manufacturing Co., 1990 79 (SCC), [1990] 2 S.C.R. 624, 79 C.R. (3d) 390, at pp. 629-30 S.C.R., p. 394 C.R.
Note 5: During submissions, I was referred to the Legislative Assembly's Official Report of Debates (Hansard) (17 October 1996 and 18 November 1996) at which time then Minister of Municipal Affairs and Housing, Honourable Al Leach stated "The bill also lets municipalities make changes to their own electoral set-up, changing from an at-large system to a ward system, for example, or changing ward boundaries. We've built in the safeguards of allowing appeals and petitions on ward boundary changes to the Ontario Municipal Board."