COURT FILE NO.: 3/04

DATE: 20041130

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: HOMELAND OASIS CORP. et al -- Applicants

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CORPORATION OF THE TOWN OF MARKHAM -- Respondent

BEFORE: Justice J.D. Ground

COUNSEL: Barnet Kussner for the Corporation of the Town of Markham, Responding Party

Noel D. Garry for Homeland Oasis Corp. et al, Moving Parties

MOTION

HEARD: November 22, 2004

E N D O R S E M E N T

[1] This motion is brought in the within application for judicial review of the decision of the council of the Town of Markham, through its Licensing Committee (“Council”) refusing to renew for the calendar years 2003 and 2004 the licence of the Applicant for the operation of a body rub parlour.

[2] The motion seeks an order compelling the Respondent to produce some 150 to 200 police and court records relevant to applications for body rub parlour licences in the Town of Markham where such licences were granted and to compel the Licencing Officer of the Town of Markham to answer certain questions relating to such records. It is conceded by the Applicants that the Licensing Officer exercised her discretion properly in this case in determining to prepare a report and seek Council’s direction on the basis that the past conduct of the Applicants afforded reasonable grounds to believe that the business would not be carried on in accordance with the law and with integrity and honesty. The Applicants also concede that there was no procedural unfairness or any basis on which to review the decision of Council that the Applicants’ licence not be renewed.

[3] It also appears to be agreed between the parties that the exercise of discretion by the Licensing Officer is not reviewable by this court pursuant to the provisions of Section 3(2)(g) of the Statutory Powers Procedure Act, R.S.O. (1990) Ch. s.22 which provides “this Act does not apply to a proceeding … of one or more persons required to make an investigation and to make a report, with or without recommendations, where the report is for the information or advice of the person to whom it is made and does not in any way legally bind or limit that person in any decision he or she may have the power to make”.

[4] It is the position of the Applicants that the process established by by-law 2002-292 of the Town of Markham which sets out the process for obtaining a licence, or the renewal of a licence, to operate a body run parlour is so open to abuse, arbitrariness and capriciousness that the process is so tainted that the Council loses its jurisdiction to act on any report made to it from the Licensing Officer. The Applicants submit that, if the documents sought to be produced were before the panel of this court dealing with the application for judicial review, they would establish the potentiality for abuse, arbitrariness and capriciousness by illustrating that applicants with prior charges and convictions similar to those of the Applicants have been granted renewals of their licences.

[5] I have some difficulty with this submission. To analogize to the Rules with respect to documentary discovery in a civil action, the documents sought to be produced must have some semblance of relevance to an issue between the parties to the proceeding. In the case at bar, the process set out in by-law 2002-92 is not challenged and in any event, the application is not structured as an application to quash the by-law. In addition, the grounds set out in the Notice of Application for judicial review do not allege that the administration of the process for obtaining a licence or a renewal of a licence is flawed or operates in an arbitrary or capricious manner. It is accordingly my view that the potential or propensity of the process of approving the issuance of, or renewals of, licences to operate body rub parlours is not a matter in issue between the Applicants and the Town of Markham in this proceeding.

[6] There is the added difficulty for the Applicants that the law is, in my view, settled that administrative tribunals are not subject to stare decisis even in the case of a tribunal acting in a quasi-judicial capacity which is not the case with the Licensing Officer (see Ontario Provincial Police v. Favretto (2004) 2004 34173 (ON CA), O.J. No. 4248). There is the added problem that, even if the Applicants in this case could establish that other applicants in similar cases had been granted licences, this would not impact upon the validity of the council’s determination not to renew the Applicants’ licence in the case at bar. In my view, the law as stated in City of Toronto v. Polai (1969) 1969 339 (ON CA), 8 D.L.R. (3rd) 689 (Ont. C.A.); Aff’d (1972) 1972 22 (SCC), 28 D.L.R. (3rd) 638 (S.C.C.) clearly establishes that a party cannot challenge the enforcement of a municipal by-law on the grounds of alleged arbitrariness or discrimination in enforcement or non-enforcement vis-à-vis other parties.

[7] The motion is dismissed. Counsel may make brief written submissions to me as to the cost of this motion on or before December 21, 2004.

Ground J.

Released: November 30, 2004