O’Mara et al. v. The Corporation of the Municipality of Northern Bruce Peninsula, 2013 ONSC 660

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-091
DATE: 20130131

RE: O’Mara, Tyas, Rutherford, Moore, Fox and Clark

Applicants

v.

The Corporation of the Municipality of Northern Bruce Peninsula

Respondent

BEFORE: Conlan J.

COUNSEL:
Peter T. Fallis, for the Applicant Tyas

Fiona M. Hamilton, for the Respondent Municipality

William C. Kort, for Bruce Trail Conservancy

E N D O R S E M E N T

Conlan J.

Introduction

1At issue is whether By-Law 2011-23 (“By-Law”) of the Respondent, The Corporation of the Municipality of Northern Bruce Peninsula (“Municipality”), ought to be quashed for illegality, pursuant to section 273(1) of the Municipal Act, 2001, S.O. 2001, c.25, as amended (the “Act”).

2The Applicant, Randall Tyas (“Mr. Tyas”), is a property owner in Northern Bruce Peninsula.

3The By-Law authorizes an agreement with Bruce Trail Conservancy (“BTC”), previously added as a party to the Application by Court Order, to utilize an unopened road allowance which is adjacent to Mr. Tyas’ property for the purpose of establishing a foot path as part of the Bruce Trail system.

4In short, Mr. Tyas argues that he was not given proper notice of the By-Law.

5The Application is opposed by both the Municipality and BTC.

6The Application was heard in Owen Sound on 24 January 2013. No viva voce evidence was called by any party. I have reviewed all of the materials filed including the Facta and Books of Authorities.

Did Mr. Tyas Receive Proper Notice of the By-Law?

The Municipality’s Internal Requirements

7The answer to this question depends, in part, on an analysis of the Municipality’s By-Law 2008-04 (“Notice By-Law”), as that sets out the notice requirements.

8Relevant are sections 3 and 4 of the Notice By-Law, set out below.

3. NOTICE TO THE PUBLIC

Where notice of intention to pass a bylaw, notice of public meeting and/or for other matters deemed appropriate to provide public notice for, and for which no prescribed notice is required by the Municipal Act, such notice shall be provided in a timeframe for newspaper publication that shall offer notification to the public on one (1) published occasion in advance of the scheduled meeting; while in the case of the municipal website, said notice shall be posted for a minimum of two (2) weeks prior to the scheduled meeting at which the subject matter will be considered.

4. FORM OF PUBLIC NOTICE

Unless prescribed otherwise, in the Municipal Act or other Act or regulation, the form of public notice shall include the following:

a) a description of the proposed action and its purpose and effect; and

b) the date, time and location of the meeting; and

c) the name, address and telephone number of the person who will receive written comments on the matter to be addressed at the meeting and the deadline for receiving such comments, where applicable; and/or

d) instructions for obtaining further information on the matter.

9Regarding section 3 of the Notice By-Law, the parties disagree as to whether notice is required in a newspaper and on the municipal website OR in either medium.

10The word “while” in the middle of section 3 of the Notice By-Law is capable of both interpretations.

11As the Notice By-Law was drafted by or on behalf of the Municipality and not Mr. Tyas, the normal principles of interpretation dictate that the ambiguity ought to be resolved in favour of Mr. Tyas.

12As such, I conclude that, under section 3 of the Notice By-Law, notice is required in a newspaper and on the municipal website.

13It is clear from the evidence of Bill Jones, the Chief Administrative Officer for the Municipality, in his Affidavit sworn on 15 June 2012 at paragraph 9, that the notice was posted on the municipal website one week before the meeting in question.

14Section 3 of the Notice By-Law requires that the notice be posted on the municipal website a minimum of two weeks before the meeting.

15Thus, I find that the Municipality did not comply with section 3 of the Notice By-Law.

16Further, I find that the publication in the Northern Bruce Notice Board (agreed by all parties to be a “newspaper”) was deficient.

17The term “Notice Section” is defined in clause 1(d) of the Notice By-Law as follows:

“Notice Section” means the area on the municipal website as well as the municipality’s advertising section within the local newspaper wherein Public Notice information is displayed.

18The only reasonable way to interpret that provision is to conclude that the notice in the newspaper must be in the “Public Notice” section.

19It was not. Although there is a “Public Notice” section in the Northern Bruce Notice Board newspaper, the publication in advance of the March 28, 2011 Council meeting was under the “By-laws” section of the Notice Board.

20That was further non-compliance with the Notice By-Law.

21Finally, I conclude that the newspaper notice did not comply with section 4 of the Notice By-Law.

22The only reasonable way to interpret section 4 of the Notice By-Law is that the form of public notice shall include, together, items (a), (b) and (d). Item (c) is not mandatory in all cases. Otherwise, the reader is forced to navigate through various sections of the Notice Board to cobble together and understand all of the necessary details.

23Here, the publication in the Northern Bruce Notice Board had the information required by subsections (a), (b) and (d) of section 4 of the Notice By-Law spread out over at least two different areas of the newspaper – “By-laws” and “Meetings”.

24In addition, item (d) was missing completely – instructions for obtaining further information on the matter. A one-liner in the “Meetings” section of the Notice Board that persons may contact the Clerk if they want to see any By-Law or agenda documents does not constitute “instructions for obtaining further information on the matter”.

25For those reasons, I find that section 4 of the Notice By-Law was not complied with.

26Although I find that the blurb under “By-laws” in the Notice Board did in fact set out item (a) of section 4 of the Notice By-Law, and thus I make no finding of non-compliance with the Notice By-Law on that issue, I agree with Mr. Fallis as counsel for Mr. Tyas that the use of a legal description for the property in question did not do much to assist interested property owners who may have been affected by the proposed agreement with BTC. Ideally, the wording ought to have been more user-friendly.

The Municipality’s Common Law Duty of Procedural Fairness

27A public body like the Municipality is bound by a duty of procedural fairness when it makes an administrative decision affecting individual rights, privileges or interests: Lafontaine, 2004 SCC 48, at paragraph 3.

28The burden of proof in this Application rests with Mr. Tyas. The standard of proof is on a balance of probabilities.

29There is nil evidence before the Court that the By-Law has affected, is affecting or will affect the rights, privileges or interests of Mr. Tyas.

30I cannot speculate that, simply because Mr. Tyas owns property adjacent to the unopened road allowance in question, what BTC has done or intends to do with that unopened road allowance has impacted, impacts now or will impact Mr. Tyas.

31In that evidentiary vacuum, I cannot make a finding that the Municipality owed any duty of procedural fairness to Mr. Tyas vis a vis the By-Law.

32Thus, it is unnecessary to deal with whether the Municipality breached any such duty, which issue encompasses the question of whether notice to Mr. Tyas ought to have been the same as it was back in 2003, when a similar By-Law was being contemplated and adjacent landowners received actual letters as notice from the Municipality.

Is the By-Law Illegal?

33It was conceded by Counsel for the Municipality during oral argument that a finding of illegality must necessarily follow if the Court concludes that the Municipality did not comply with the Notice By-Law.

34On the basis of that concession, I so find. Having failed to comply with the Notice By-Law, By-Law 2011-23 is illegal, that is, it was not authorized by law. It was not passed in accordance with the Notice By-Law.

Should the By-Law be Quashed?

35A finding of illegality does not inevitably result in something being quashed.

36Subsection 273(1) of the Act makes it clear that the said remedy is discretionary.

37There was some dispute among counsel as to whether the quashing of a By-Law for illegality requires the Applicant to show bad faith on the part of the Municipality.

38In my opinion, although a finding of bad faith is often made before a By-Law is quashed for illegality, no such finding is required. It is required only under section 272 of the Act, where the By-Law is attacked as being unreasonable.

39Where the By-Law was enacted with a total absence of jurisdiction, a Court acting judicially will quash the By-Law: RSJ Holdings Inc. v. London (City), 2007 SCC 29, 2007 CarswellOnt 3919 (SCC), at paragraph 39.

40That is not the case here.

41Otherwise, the Court may consider the nature of the By-Law in question, the seriousness of the illegality committed, the consequences of the illegality, delay and mootness: RSJ Holdings, supra, at paragraph 39.

42Delay and mootness are not important factors in this case, although it should be said that Mr. Tyas has been less than diligent in advancing this Application and complying with prior Court Orders regarding deadlines for materials.

43I characterize the seriousness factor as neutral on these facts. Non-compliance by a Municipality of the clear wording in its own Notice By-Law is not trivial or merely technical, especially where, as here, there was non-compliance in more than one way. On the other hand, this is not a case where the Municipality failed to give any notice at all or engaged in conduct that was high-handed, callous or in bad faith.

44The issue turns really on the consequences of the illegality. I have no evidence on that. I know nothing about how this By-Law has affected Mr. Tyas or will in the future; or what the unopened road allowance means to Mr. Tyas; or what he has used the property for in the past; or what he intends to do with it in the future; or anything of the sort.

45On that basis, I must exercise my discretion and not quash the By-Law.

Conclusion

46A finding of illegality is made, however, I am not quashing the By-Law. The Application is dismissed.

47My inclination is to award no costs in this matter. If Counsel cannot agree on the issue of costs, they shall contact the Trial Coordinator within two weeks of the release of this Endorsement and schedule a further Court attendance to deal with that matter in one hour total or less.

Conlan J.