CITATION: Ross v. Toronto (City) 2011 ONSC 7591
COURT FILE NO.: 478/11 (Div. Ct.)
DATE: December 21, 2011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Beverly Ross, Lloyd G. Ryder, John R. Arnold, Jeffrey Posluns, Helen Sklarz, Lyn Levine, Beverley Bailey, John P. Conway, Reena Sheres, Samuel Alter and Jordan Talsky
Applicants
- and -
City of Toronto and Brenda Patterson and Jim Hart, in their capacities as General Managers, Parks, Forestry & Recreation
Respondents
COUNSEL:
Fred Myers for the Applicants
Andrew Stikuts for the Respondents
HEARING DATE: December 16, 2011
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] This application concerns the cancellation of the designation of an area in Ledbury Park in the City of Toronto as an off-leash area for dogs.
[2] The Applicants, Beverly Ross, Lloyd G. Ryder, John R. Arnold, Jeffrey Posluns, Helen Sklarz, Lyn Levine, Beverley Bailey, John P. Conway, Reena Sheres, Samuel Alter, and Jordan Talsky are members of the Ledbury Park Dog Owners Association. They bring a judicial review application to overturn what they submit are unlawful exercises of a statutory power of decision by Brenda Patterson, who is the former General Manager, Parks, Forestry & Recreation of the City of Toronto, and by Jim Hart, who is the current General Manager, Parks, Forestry & Recreation of the City.
[3] On June 13, 2011, as a result of Ms. Patterson’s decision, Toronto cancelled the off-leash designation of Ledbury Park under the provisions of the People, Dogs and Parks – Off-Leash Policy as enacted by Toronto By-law 890-2007, as amended. On August 23, 2011 Mr. Hart confirmed Ms. Patterson’s decision on appeal or made another decision to cancel Ledbury Park’s off-leash designation.
[4] The Applicants and their Association seek judicial review of the cancellation decisions, which is a matter to be heard by a full panel of the Divisional Court. However, on the motion now before the court, the City seeks to quash the judicial review application on the grounds that there was never the exercise of a statutory power of decision or the exercise of a decision subject to judicial review.
[5] If the City’s motion to quash is dismissed, the Applicants seek production from the City of the record of proceedings leading to the decisions of Ms. Patterson and of Mr. Hart, including, but not limited to, all reports and communication to and from the decision-makers and any of City Councillor Karen Stintz, City staff, including, without limitation, Carole Cormier, Manager, Parks Standards & Innovations, and all legal advice received concerning the review and resolution of the proceedings before them.
[6] On the hearing of the City’s motion to quash, the City agreed (and the Applicants consented) that if the City’s motion to quash was dismissed, then it would produce the relevant material sought by the Applicants and disclose but not produce any privileged material.
[7] For the reasons set out below, I dismiss the City’s motion to quash the judicial review application and order the production of relevant material as aforesaid. This matter should proceed to a hearing by a panel of the Divisional Court.
B. FACTUAL BACKGROUND
[8] Ledbury Park is located between Bathurst Street and Avenue Road, north of Lawrence Avenue West in Toronto. There are over 2,800 licenced dogs in the Ledbury Community.
[9] Ledbury Park consists of the premises of Ledbury Park Elementary and Middle School, a playground with climbing apparatus, a grass playing field including a soccer field and two baseball diamonds, two additional fields for recreational and passive uses, a public swimming pool, and a skating rink ice pad.
[10] Between 1995 and 2011, the north-east corner of Ledbury Park has been used by the community as an off-leash dog park.
[11] Pursuant to §608-34(1) of the Toronto Municipal Code, passed pursuant to s. 425 of the Municipal Act, 2001, S.O. 2001, c.25, no person in a park in control of a dog shall allow the dog to run at large “except in a posted designated off-leash area.” By §608-54 of the Code, contravention of the prohibition against allowing a dog to be at large in a park is an offence which, under section 61 of the Provincial Offences Act, R.S.O.1990, c. P.33, is punishable by a fine of not more than $5,000.
[12] By By-law 890-2007, Toronto City Council enacted the People, Dogs, and Parks Off-Leash Policy to provide for the designation of off-leash areas in public parks. Under the Policy, persons applying to have a park designated as an off-leash area are required to form a local dog owners’ association. For present purposes, the following provisions of the by-law are relevant:
Policy Statement
The City of Toronto (the “City”) recognizes the social benefits that dogs experience in parks and the need to accommodate the well-being of the urban canine population. The City further recognizes the requirement for responsible pet ownership within our parkland system.
This policy pertains to the provision of off-leash areas for dogs in City-owned or operated parks, greenspaces, waterfront areas and alternative sites (“City Parks”).
Dogs must be kept on leash at all times in all Parks unless otherwise posted.
Location and Criteria
The following criteria will be considered in determining off-leash areas: ….
Application Procedure for Off-Leash Park Area
To apply for an off-leash area:
(1) Dog owners interested in establishing a leash-free area in a City Park must establish a local dog-owners association.
(2) The proponent must identify two key contacts and submit a written application to Parks, Forestry and Recreation, attention: Parks Director….
(6) Where the proposed site is deemed suitable by Parks, Forestry and Recreation, the Division will contact the local Ward Councillor and host a public information meeting to advise interested residents, community representatives, advisory council members, sports groups, area schools, business improvement areas, residents’ associations and other park users that an off-leash area will be located in the identified park. ….
Cancellation of Off-Leash Designated Area
Designation of an off-leash area may be cancelled by the General Manager of Parks, Forestry and Recreation in the event of a seriously dysfunctional area that cannot be remedied through increased, targeted enforcement of the Toronto Municipal Code.
Appeal Process
Applicants who wish to appeal the decision to cancel the off-leash area designation may do so within 30 days, in writing, to the General Manager of Parks, Forestry and Recreation.
[13] In October 2007, several users of Ledbury Park formed an Association, and the Association applied for an off-leash designation for the park under the Policy.
[14] By letter dated September 19, 2008, Lindsay Peterson, Acting Manager, Parks, North York District, determined that Ledbury Park was suitable as an off-leash area subject to fencing being erected.
[15] In early 2010, nearly two years after the designation of the Ledbury Park as an off-leash area under the the 2007 Policy, the City erected fencing to enclose the Dog Park in Ledbury Park.
[16] On January 27, 2010, City Council amended the People, Dogs, and Parks Off-Leash Policy. For present purposes, the following provisions of the amended by-law are relevant:
Policy Statement
The City of Toronto (the “City”) recognizes the social benefits of dogs and their owners having access to and being accommodated within the parks system.
This policy pertains to the provision of off-leash areas for dogs in City-owned or operated parks, greenspaces, and waterfront areas (“City Parks”).
Provision of these off-leash areas will be based on each neighbourhood’s characteristics and needs.
Consideration must be given to balancing the needs and interests of the community, impact on the natural environment and sustainability of the off-leash areas, when identifying appropriate locations for off-leash areas.
The City further recognizes the requirement for responsible pet ownership within City Parks.
Dogs must be kept on leash at all times in all City Parks unless otherwise posted.
Procedure for New Off-Leash Area
(1) New off-leash areas will be considered in conjunction with capital redevelopment of existing parks or new park development against the policy criteria. …
Location Criteria for Establishment of Off-Leash Areas
The General Manager shall consider opportunities for off-leash areas as part of the capital process or redevelopment of existing parks or development of new parks.
The following criteria will be used in staff’s review of the suitability: ….
Cancellation of Off-Leash Designated Area
Designation of an off-leash area may be cancelled by the General Manager of Parks, Forestry and Recreation where in the opinion of the General Manager:
• the off-leash area is not being used on a regular basis
• extensive damage to the park and/or natural environment is occurring
• the park is no longer suitable for an off-leash area
• conflicts between park users cannot be resolved
• repeated, ongoing non-compliance with the Code of Conduct for off-leash area use posted at each off-leash area and the City of Toronto Municipal Code Chapters.
Appeal Process
Residents who wish to appeal the decision to cancel the off-leash area designation may do so within 30 days, in writing, to the General Manager of Parks, Forestry and Recreation.
[17] On June 13, 2011, Ms. Patterson wrote Ledbury Park Residents that the designation of Ledbury Park as an off-leash area was cancelled. The letter stated:
This letter is in follow up to the public meeting held on May 26, 2011. Parks, Forestry and Recreation staff have completed a review of comments and feedback received to date from the community regarding the proposal to relocate the dog off-leash area at Ledbury Park.
This letter is to confirm that the existing off-leash area will close and be removed effective June 27, 2011. Due to the many conflicting park use issues that community members clearly expressed and which we have been unable to resolve without causing further conflicts, the off-leash area in Ledbury Park will not be relocated to the south east portion of the Park. ….
While recognizing these decisions may be disappointing for some members of the community, it is important to note that three new off-leash areas are to be constructed in 2011: Yonge & York Mills Road, Earl Bales Park and G. Ross Lord Park. ….
[18] The Association appointed its member, Applicant John Conway for the purpose of pursuing an appeal of Ms. Patterson’s decision. In an email dated June 17, 2011, Mr. Conway requested that Ms. Patterson provide reasons for her decision.
[19] In a letter dated July 5, 2011, Ms. Patterson wrote:
I acknowledge receipt of your email and notification to appeal the decision to close the off-leash area at Ledbury Park.
The appeal review will be conducted by the General Manager of Parks, Forestry and Recreation Division, as Council has delegated this authority to the General Manager. …
The decision to close the existing off-leash area was based on information provided to me by staff on a regular basis and was announced at the public meeting of May 26, 2011. This decision was made due to the ongoing conflicts between the community, park users and off-leash users since the off-leash area was designated and became operational in December 2009. ….
The following is a summary of the issues at Ledbury Off-Leash Area: ….
Staff contacted and met with the Dog Owners Association’s representative in an attempt to resolve these issues without success.
Attached please find a copy of the policy wherein the “designation of an off-leash area can be cancelled by the General Manager of Parks, Forestry and Recreation where in the opinion of the General Manager: conflicts between park owners cannot be resolved.” ….
[20] On July 6, 2011 and again on July 13, 2011, Mr. Conway e-mailed Ms. Patterson and requested particulars of the complaints described in her reasons and particulars of the contact with the Association’s representative.
[21] Ms. Patterson responded by letter dated July 14, 2011. Her letter stated:
I am writing in response to your July 6 and July 13, 2011 emails requesting additional information in relation to my decision to cancel the Ledbury Park – dog leash area.
Much of the information you have requested is not readily available. The off-leash area was installed in 2009. ….
As previously indicated, ongoing complaints include: ….
Once the appeal process has closed on July 31, 2011, I will be conducting a comprehensive review of all of the information before me. Accordingly, please provide any additional information to assist with my review by the July 31st deadline.
[22] On July 27, 2011, Mr. Conway e-mailed the Association’s appeal submissions to Ms. Patterson. These were subsequently lost, and Mr. Conway faxed the submissions to Mr. Hart, who was the new General Manager, on August 18, 2011.
[23] By a letter dated August 23, 2011, Mr. Hart dismissed the appeal. In his letter, he stated that:
This letter is with regards to the appeal submission from the Ledbury Dog Owners’ Association of which you advise you are the representative. ….
Council has delegated the authority to administer the Policy to the General Manager of Parks, Forestry and Recreation. Council also delegated to the General Manager the authority to cancel an off-leash designation where, in the opinion of the General Manager, the park is no longer suitable for an off-leash area, conflicts between park users cannot be resolved, or there is repeated, ongoing non-compliance with the Code of Conduct for off-leash areas’ use posted at each off-leash area and the Toronto Municipal Code chapters.
In the case of Ledbury Park, the off-leash area shares a common fence line with residential homes on Melrose Avenue, Marmion Avenue and the Toronto District School Board. The proximity of residences to the off-leash area is in contravention of the Policy criteria, resulting in conflict created between park users and the adjacent residences.
My review of the information before me leads me to conclude that Ledbury Park is not suitable for an off-leash area due to ongoing and unresolved conflicts between park users, and between off-leash area users and area residents. The successful operation of a park is a balancing act of various interests and unfortunately we cannot accommodate the interests of the Ledbury Dog Owners’ Association at Ledbury Park. I have exercised my discretion to close the Ledbury Park off-leash area and remove the off-leash designation. The additional information you included in your appeal submission does not, in my view, provide any grounds to change my decision.
[24] Twenty-four hours after the release of Mr. Hart’s decision, the City removed the fencing that defined the boundaries and enclosed the off-leash area within Ledbury Park.
[25] On October 17, 2011, the Applicants commenced an application for judicial review.
C. DISCUSSION
[26] The City submits that the judicial review application should be dismissed or quashed because Ms. Patterson’s and Mr. Hart’s decisions are administrative or political decisions, which are not open to judicial review, in contrast to a statutory power of decision, which is open for judicial review.
[27] In the circumstances of this case, it is for a single judge of the Divisional Court to determine whether a decision is the exercise of a statutory power of decision; this is not an issue to be left to the panel hearing the application for judicial review: Jacko v.Ontario (Chief Coroner), 2008 69579 (ON SCDC), [2008] O.J. No. 5376 (Div. Ct.) at para. 10; Dolan v. Ontario (Civilian Commission on Police Services), 2011 ONSC 1376, [2011] O.J. No. 1028 (S.C.J.).
[28] Section 1 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 defines “statutory power of decision” as follows:
“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,
and includes the powers of an inferior court.
[29] It seems to be undisputed and undisputable that Ms. Patterson and Mr. Hart where making a decision. They cancelled the off-leash designation of Ledbury Park and under both the 2007 and the 2010 versions of the by-law, applicants are given a right to appeal the decision to cancel the designation, which designation would also appear to be a decision.
[30] When Ms. Patterson wrote Ledbury Park Residents on June 13, 2011, to advise them about her decision, she recognized that the decision would be disappointing for some members of the community. In her letters of July 5, 2011 and July 14, 2011, to Mr. Conway, Ms. Patterson acknowledged that her decision was being appealed. She also indicated that her decision was pursuant to the City’s by-law about off-leash areas. When Mr. Hart dismissed the appeal, he too acknowledged that he was making a decision under authority delegated to him under the City’s Policy, which had been enacted by by-law.
[31] Thus, in the case at bar, there is a decision and the right to make it was conferred by statute; namely the City’s authority under the Municipal Act, 2001, to enact its off-leash policy for City parks.
[32] To make the City’s decision, which was conferred under a statute, a “statutory power of decision” it must, to use the language of s. 1 of the Judicial Review Procedure Act, describe or prescribe “the legal rights, powers, privileges, immunities, duties or liabilities of any person, or the eligibility of any person or party to receive, or to the continuation of, a benefit or licence …”
[33] In my opinion, when the City designated Ledbury Park as an off-leash area, the City made a decision that prescribed the legal rights, privileges, immunities, and liabilities of dog owners, (who would include the Applicants) using Ledbury Park and conferred on them a benefit or licence. When Ms. Patterson and Mr. Hart cancelled the designation, on behalf of the City, they made a decision that prescribed the legal rights, privileges, immunities, and liabilities of the Applicants and they discontinued the benefit or licence that had been conferred on the Applicants.
[34] I do not see how these decisions can be described as merely a political or administrative decision. An immunity (to prosecution from having an unleashed dog in the park) and a benefit (the privilege of having an unleashed dog in the park) had already been conferred on the Ledbury Park visitors by the City, but the City has decided in accordance with the provisions of its by-law to take that immunity or privilege away and expose visitors with unleashed dogs in the park to a liability to which they were formally immune.
[35] The immediate case is similar to Vietnamese Association of Toronto v. The City of Toronto, (2007), 2007 13371 (ON SCDC), 85 O.R. (3d) 656 (Div. Ct.). In that case, pursuant to a policy prescribed by by-law, the City of Toronto delegated to a City Official the decision about what flags could be flown on a ceremonial flagpole. The official refused the Vietnamese Association of Toronto’s request to fly a flag. The Divisional Court held that the official was determining the eligibility of the applicant to receive a benefit offered by the City and, therefore, was exercising a reviewable statutory power of decision.
[36] In making their arguments that Ms. Patterson’s and Mr. Hart’s decisions were statutory powers of decision, the Applicants drew an analogy with licences under the common law that permit a person to pass over another person’s land. This common law permission or licence provides a defence to a common law action for trespass. I do not, however, find this analogy from the law of real property helpful. The City’s policy establishing areas for unleashed dogs did not confer proprietary rights but rights and benefits of a different sort altogether.
[37] The Applicants’ analogy of a proprietary licence prompted the City to make the argument that given that at common law bare licences can be revoked, there was no conferral of rights in the case at bar that would attract judicial review.
[38] When licences can be revoked at common law is actually a complicated topic, but this whole discussion is a distraction and besides the point. The rights, particularly the immunity to prosecution, in the case at bar, are of a different nature, and it is not helpful to pursue this analogy further.
[39] The City also relies on Jacko v. Ontario (Chief Coroner), 2008 69579 (ON SCDC), [2008] O.J. No. 5376 (Div. Ct.), but that case is distinguishable. In Jacko. the Chief Coroner denied a request for an inquest under the Coroner’s Act, R.S.O. 1980 c. C.37. Under the Coroner’s Act, the Chief Coroner was required to decide whether the holding of an inquest “would serve the public interest.” The Divisional Court held that the Coroner’s Act authorized the Chief Coroner to exercise a public interest discretion that did not amount to a statutory power of decision and that the Chief Coroner is not granted a power by statute to determine a person’s eligibility to receive a benefit. The case at bar is very different where the City Officials are making decisions about rights, privileges, immunities, and benefits pursuant to the authority of a by-law under which these rights, privileges, immunities and benefits are created.
[40] Therefore, in my opinion, the decisions of Ms. Patterson and Mr. Hart are subject to judicial review and it will be for a full panel of the Divisional Court to review those decisions.
D. CONCLUSION
[41] Orders accordingly.
[42] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Applicants submissions within 15 days of the release of these Reasons for Decision followed by the City’s submissions within a further 15 days.
Perell, J.
Released: December 21, 2011
CITATION: Ross v. Toronto (City) 2011 ONSC 7591
COURT FILE NO.: 478/11 (Div. Ct.)
DATE: December 21, 2011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Beverly Ross, Lloyd G. Ryder, John R. Arnold, Jeffrey Posluns, Helen Sklarz, Lyn Levine, Beverley Bailey, John P. Conway, Reena Sheres, Samuel Alter and Jordan Talsky
Applicants
‑ and ‑
City of Toronto and Brenda Patterson and Jim Hart, in their capacities as General Managers, Parks, Forestry & Recreation
Respondents
REASONS FOR DECISION
Perell, J.
Released: December 21, 2011