DIVISIONAL COURT FILE NO.: 69196/03

DATE: 20050922

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, MEEHAN, MATLOW JJ.

B E T W E E N:

HENRY W. FREITAG

John J. Winter, for the Applicants

Applicant

• and -

THE CORPORATION OF THE TOWN OF PENETANGUISHENE

Frank N. Grisé, for the Respondent

Respondent

Heard at Newmarket: September 13, 2005

ENDORSEMENT

[1] After some procedural difficulties, this matter comes before us as an Application for Judicial Review under sections 2 (1) and 6 (1) of the Judicial Review Procedure Act.

[2] The applicant seeks a mandatory order requiring the respondent to enforce its By-laws 2000-02 and 2002-28 (5-9) by removing, or causing the removal of obstructions and to ensure sufficient sight distances at the intersections located at (a) 40 Payette Drive at the intersection with Lorne Avenue and (b) 5 Dufferin St., Penetanguishene (at the intersection with Hilltop Drive).

[3] The material disclosed that the applicant, a resident and ratepayer of the Town, became concerned regarding sight triangles at eleven intersections. All intersections were viewed by Town personnel.

[4] A report was sent to the applicant dated November 28, 2001. Some action was taken in regard to some of the intersections, but the Municipality was of the view that the two intersections in question in this application were not hazardous, that enforcing the sight line would involve private property and, further, the records disclosed no other complaints, or any accidents.

[5] The applicant did not choose to employ section 443 of the Municipal Act, 2001 S.0. 2001 c. 25.

If any By-Law of a Municipality or Local Board under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the By-law, the contravention may be restrained by action at the instance of a taxpayer or the Municipality or Local Board.

[6] The applicant in this material alleges from his own observations and the report of a surveyor, that the line of sight is less than that provided in the By-law and that the cause was vegetation growing on private property.

[7] The Municipality takes the view that it inspected the two intersections and it is satisfied they do not create hazards, whether or not they are in breach of the By-law.

[8] At a preliminary matter, a question of whether a ratepayer can compel a municipality to restrain a breach of it’s By-law or compel it to enforce compliance with its By-laws.

[9] The Law of Canadian Municipal Corporations 2d ed. Toronto: Carswell, at p. 1361, Para. 246.6, indicates:

A municipal by-law passed in the public interest confers no right upon a property owner or ratepayer to have a breach or intended breach of its provisions restrained by the court.

[10] See also p. 1362:

Where a ratepayer has a statutory right of this nature, the municipality cannot be compelled by mandamus to take proceedings necessary for preventing its violation.

[11] At p. 1371:

The remedy will not be granted where the statutory power conferred is a discretionary one which the council may or may not exercise, unless the council has exercised it by enacting a by-law imposing a duty on its officers and servants.

[12] No such provision exists in the By-law in issue here. No direct personal or property interest is engaged here such as is the case with building permits, rezoning and so on.

[13] There appears to be no specific duty upon a Municipality to enforce a By-law which it has enacted in the exercise of a discretionary power. Brown v. Hamilton (1902), 4 O.L.R. 249; Montreal v. Mulcair, 28 S.C.R. 458.

[14] There are valid policy reasons for the courts not interfering with the exercise of municipal discretion.

[15] Dealing with standard of review, Chief Justice McLachlin elucidated in Shell Canada Products v. Vancouver (City), [1994] 1 S.C.R. 231:

Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils…Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives.

[16] Mandamus is a discretionary remedy and it should not be granted in these circumstances.

[17] The application will be dismissed. Costs to the Municipality fixed at $4,000, inclusive as agreed by counsel.

MEEHAN J.

LANE J.

MATLOW J.

Released: September 16, 2005