ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-692
DATE: 2014-09-17
BETWEEN:
LARRY DUMOULIN
Applicant
– and –
THE CORPORATION OF THE TOWN OF DEEP RIVER
Respondent
Self-represented applicant
Ian Kuehl, for the respondent
HEARD: September 17, 2014 at Pembroke.
T.D.RAY, J
[1] This application, dated July 11, 2013, seeks to quash the respondent’s Property Standards By-Law 10-2012.
[2] The applicant’s grounds for seeking to quash the by-law are:
a. By-law 10-2012 is Ultra Vires and did not conform to the pre-conditions contained in the enabling legislation at the time the by-law was adopted by Deep River Council.
b. By-law 10-2012 has not been administered in a reasonable manner as required in the enabling legislation.
c. The Property Standards Committee and appeal mechanism mandated in the enabling legislation have not been administered in good faith or in a manner befitting the basic principles of quasi-judicial process and conduct.
[3] The application is supported by the applicant’s affidavit which attaches a number of documents as exhibits. The respondent’s application record consists of the affidavit of the Acting Clerk of the respondent, attached to which are various exhibits concerning the passage and implementation of the Property Standards By-law 10-2012 (“By-law”).
[4] The By-law was adopted by the respondent on March 21, 2012. The applicant contends that the By-law must be quashed pursuant to section 273 (1) of the Municipal Act because the respondent failed to adopt an Official Plan Amendment relating to property conditions before adopting the By-law. The applicant contends that the Official Plan Amendment is a statutory pre-requisite required by section 15.1 (3) of the Building Code Act, 1992, S.O. 1992, c. 23[1]. In addition, the applicant complains that various procedural irregularities occurred leading up to its adoption, that members were impartial, proceedings of the committee contravened the Statutory Powers Procedure Act, the Municipal Freedom of Information and Protection of Personal Privacy Act has been breached, and the respondent’s mayor has improperly attempted to involve himself requiring that the By-Law be quashed in order to restore integrity to the property standards process.
[5] The respondent’s position is that the jurisdiction to quash a municipal By-law is limited to the grounds set forth in the Municipal Act[2]; and are confined to issues of good faith and illegality. The respondent concedes that the By-law was adopted by the respondent before the Official Plan Amendment, and concedes that the Official Plan Amendment should have been passed first, but contends that the Planning Act[3] permits it, and renders the By-law valid and enforceable providing no appeal was taken – which was not.
[6] Only the first ground in the applicant’s application supports an application to quash.
[7] The other two grounds relate to the operation, implementation or administration of the By-law relating to decisions taken under the authority of the By-law. It is not open to a court to quash a By-law on those grounds. There is no authority that permits a By-Law to be quashed on the ground of its operation, implementation or administration. If it is the decisions that are offensive, then recourse must be had to the usual procedures for appealing those decisions. If it is the legislation that is considered to be overly intrusive and overreaching, then short of a constitutional attack, it is a matter for the legislature.
[8] The relevant chronology is as follows:
a. March 21, 2012 – respondent adopted the Property Standards By-Law, then passed a resolution approving the Official Plan Amendment (to come into force May 22, 2012 after the requisite County approval).
b. July 30, 2012 – the respondent issued an “order to comply” (Property Standards) to the applicant.
c. August 13, 2012 – applicant filed an appeal.
d. November 30, 2012 – applicant was notified his appeal was to be heard December 6, 2012, and he sought an adjournment. Respondent refused his request.
e. December 4, 2012 to June 20, 2013 – exchanges of correspondence concerning the procedures and hearing date.
f. June 20, 2013 – respondent held hearing.
g. July 4, 2013 – Property Standards Committee confirmed its order, and gave reasons.
h. July 11, 2013 – Notice of Application issued by the applicant in the Superior Court seeking to quash the By-Law.
[9] The Court may quash a municipal by-law on the grounds of bad faith, or illegality.[4]
[10] For the following reasons, I do not accept the applicant’s contention that the By-Law should be quashed for illegality (Ultra Vires) on the ground that the requisite Official Plan Amendment had not preceded its adoption.
[11] It is accepted that the Official Plan must be amended before a Property Standards By-Law may be adopted. The applicant is correct that the effective date of the Official Plan Amendment was two months after the adoption of the By-Law, and is correct that the Minutes of the respondent council for March 21, 2012 reflect that the Property Standards By-Law was passed first that evening, and the Official Plan Amendment second (to take effect May 22, 2012 after County approval). The Planning Act[5] specifically addresses that issue. It provides that:
24(2) If a council or a planning board has adopted an amendment to an official plan, the council of any municipality or the planning board of any planning area to which the plan or any part of the plan applies may, before the amendment to the official plan comes into effect, pass a by-law that does not conform with the official plan but will conform with it if the amendment comes into effect. 2006, c. 23, s. 12.
24(2.1) A by-law referred to in subsection (2),
(a) shall be conclusively deemed to have conformed with the official plan on and after the day the by-law was passed, if the amendment to the official plan comes into effect;
[12] Had the Minutes of the respondent council shown the By-Laws to have been passed in reverse order, the applicant says he would have no argument since the above section of the Planning Act is on point. The respondent argues that the By-Law and the Official Plan Amendment were passed or adopted on the same date and therefore should be considered to have been passed in compliance with the above section. He argues that even if the By-law were to be quashed, the respondent would pass it again in its same form.
[13] The words adopted and passed as they appear in the above section may bear scrutiny. The Minutes of the respondent council show the adoption and passing of the By-Law and Official Plan Amendment in order. However, those decisions are not enforceable without the signature of the mayor and the clerk.[6] A certified copy of the By-Law shows it was signed March 21, 2012. A certified copy of The Official Plan Amendment shows it to have been signed March 21, 2012. No distinction is made between the two. Who is to say which was signed first? Since they were both enforceable the same date, and since the By-Law was remedial in nature and for the public benefit, then I am obliged to give effect to the most beneficial interpretation.[7] I conclude that the Official Plan Amendment was passed when the By-Law was adopted. Or more accurately I am unable to say that the Official Plan Amendment was not passed before the By-Law was adopted.
[14] Consequently the saving provision of the Planning Act as above has application.
[15] I am satisfied therefore that as of May 22, 2012 when the Official Plan Amendment came into effect that the By-Law was deemed to be in conformity with the official plan.
[16] The other ground available to the applicant is bad faith. However, he has advanced no grounds to suggest the By-Law was adopted in bad faith. While he may feel aggrieved by the By-Law, its language is broad and general. It is not on its face directed to him. Such legislation has been held to be remedial and for the general benefit of the community. The By-Law is presumed to have been adopted in good faith.[8] I do not consider bad faith in this case as a ground to quash the By-law.
[17] The applicant’s application is dismissed.
[18] The parties may make written submissions concerning costs of two pages or less within 14 days, and a further five days for reply from each, addressed to the Trial Coordinator in Pembroke.
Honourable Justice Timothy Ray
Released: September 17, 2014
COURT FILE NO.: 13-692
DATE: 2014-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LARRY DUMOULIN
Applicant
– and –
THE CORPORATION OF THE TOWN OF DEEP RIVER
Respondent
REASONS FOR JUDGEMENT
Honourable Justice Timothy Ray
Released: September 17, 2014
[^1]: Building Code Act, 1992, S.O. 1992, c. 23
[^2]: Municipal Act, SO 2001, sections 272 and 273.
[^3]: Planning Act, RSO, 1990, c. P-13, sections 24(2), (2.1) and (4).
[^4]: Note 2.
[^5]: Note 3.
[^6]: Municipal Act, S.O. 2001, section 249(1), Scozzafava v City of St Catherines, 2007 ONCA 245 (Ont C.A.) citing The Law of Canadian Municipal Corporations, 2d ed., looseleaf, Vol. 1 (Toronto: Carswell, 1971), Ian MacF. Rogers, Q.C. wrote at p. 448:
“Without being sealed and signed by the head of the council and the clerk as required by the law in most jurisdictions, the instrument is not a by-law whatever else it may be. A by-law that has been passed by a council and which has not been sealed or signed as prescribed by statute is, for the time being, of no validity but, when so signed and sealed, it becomes effective. “
[^7]: Interpretation Act, RSO 1990, c I.11, s.10
[^8]: Detlor v City of Brantford, 2013 ONCA 560, 117 O.R. (3d) 560, at paras. 56-57.