ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CV-15-4784-00
Date: 20151109
B E T W E E N:
PETER BAILEY
David Shiller, for the Applicant
Applicant
- and -
MARTIN MEDEIROS and THE CORPORATION OF THE CITY OF BRAMPTON
Mark Geiger and Jodi Solomon, for
Martin Medeiros
Owen M. Rees, for The Corporation
of the City of Brampton
Respondents
Heard: October 23, 2015
REASONS FOR JUDGMENT
Daley, J.
[1] The applicant moved for an interim and interlocutory injunction restraining the respondent, Martin Medeiros (“Medeiros”), from attending, or voting at, any meeting of the City Council of the Corporation of the City of Brampton, until after the hearing of the application.
[2] The motion was dismissed on October 26, 2015 with reasons to follow. These are the reasons.
[3] The applicant instituted an application on October 22, 2015 and along with it filed this motion seeking the interim and interlocutory injunctive relief referred to.
[4] The applicant filed an affidavit in support of the motion which was sworn on October 16, 2015. The respondent Medeiros filed a reply affidavit dated October 23, 2015. No cross examinations were conducted with respect to the affidavits filed.
[5] The principal evidence offered in the applicant’s affidavit is as follows:
(a) Medeiros submitted nomination papers for the office of municipal councillor for the City of Brampton on August 20, 2014;
(b) the City of Brampton municipal election was held on October 27, 2014 and Medeiros was elected as a municipal councillor;
(c) the applicant asserted that Medeiros was not qualified to be nominated or elected as a municipal councillor because he resided in the City of Mississauga, both at the time he submitted his nomination papers on August 20, 2014 and as of the date of the election on October 27, 2014, at which times neither he nor his spouse was an owner or tenant of land in the City of Brampton;
(d) the applicant asserted that Medeiros misrepresented to the clerk of the City of Brampton that 27 Higgins Crescent, Brampton, Ontario, was his qualifying address, when he neither resided there nor was he the owner or tenant of that address;
(e) the Higgins Crescent address was registered in the Land Registry Office #43 as being owned by Laurenio Martino Medeiros and Judite Aguiar Medeiros;
(f) the Land Registry Office #43 records show that as of August 20, 2014, Medeiros and his wife, Nancy da Silva, owned a property at 383 Derrydale Drive, Mississauga;
(g) on May 1, 2015 Medeiros and his wife purchased a property at 10 Chesapeake Court, Brampton.
[6] The respondent Medeiros offered the following evidence in the affidavit submitted on his behalf dated October 23, 2015:
(a) he was born in Brampton and grew up in his parents’ home at 27 Higgins Crescent, Brampton;
(b) in 2010 he moved to a home at 383 Derrydale Drive, Mississauga where he resided with his wife and children for four years;
(c) throughout those years he contemplated moving back to Brampton and in the spring of 2014 he developed a plan in which he moved from his matrimonial home in May 2014 to take up residence with his parents at their Higgins Crescent address;
(d) on June 11, 2014 he registered his change of address to the Higgins Crescent address with respect to his drivers licence and health card as well as for the billing purposes with respect to the 407 ETR and Rogers Communications;
(e) in the period from May 2014 until after the election on October 27, 2014 he slept every night at the Higgins Crescent address and lived at that home as his primary residence;
(f) on August 20, 2014 he registered as a candidate for Regional Councillor for the Region of Peel to represent Wards 3 and 4 in the City of Brampton;
(g) he entered into a lease in his personal capacity for a campaign office on September 20, 2014 with respect to premises located at 75 Clarence Street, Brampton. The lease was for a term of one month and 10 days, ending October 31, 2014;
(h) he was elected as Regional Councillor for the Region of Peel;
(i) on February 13, 2015 the respondent and his wife accepted an offer to purchase on their Derrydale residence;
(j) on May 1, 2015 the respondent and his wife took possession of a home located at 10 Chesapeake Court, Brampton and the respondent moved into that home in May 24, 2015.
Analysis:
[7] The legislative framework as to the eligibility to seek election in both a local municipality, in this case the City of Brampton, and in an upper-tier municipality, in this case the Region of Peel is found in ss. 256 and 257 of the Municipal Act, 2001 S.O. 2001, c. 25 which read as follows:
Eligibility, local municipality
- Every person is qualified to be elected or to hold office as a member of a council of a local municipality,
(a) who is entitled to be an elector in the local municipality under section 17 of the Municipal Elections Act, 1996; and
(b) who is not disqualified by this or any other Act from holding the office. 2001, c. 25, s. 256.
Eligibility, upper-tier municipality
- Every person is qualified to be elected or to hold office as a member of a council of an upper-tier municipality,
(a) who is entitled to be an elector in a lower-tier municipality within the upper-tier municipality under section 17 of the Municipal Elections Act, 1996; and
(b) who is not disqualified by this or any other Act from holding the office. 2001, c. 25, s. 257.
[8] The applicant moves for the interim and interlocutory injunction to restrain the respondent Medeiros, pre-emptively, in advance of his pending application wherein he seeks various relief including declarations that the respondent was not qualified to be nominated for the office of city councillor on August 20, 2014, that he was not qualified to be elected to the office of city councillor October 27, 2014, that his election on that date was not valid and that as of the date of the election October 27, 2014 that the office of city councillor of the City of Brampton was forfeited and became vacant. The applicant also seeks an order removing the respondent Medeiros from the office of city councillor and directing that a by- election be held to allow the voters of the City of Brampton to elect a representative qualified to be elected to the Brampton City Council.
[9] Also within the application, the applicant seeks the injunctive relief sought in the present motion.
[10] The application is brought pursuant to s. 265 of the Municipal Act, 2001 which provides as follows:
Application to court
- (1) Any elector entitled to vote at the election of members of a council may apply to the Superior Court of Justice for a declaration that the office of a member of the council has become vacant in accordance with this Act. 2001, c. 25, s. 265 (1).
Judicial finding
(2) If the court finds that the office of a member of the council has become vacant, it may order the member removed from office and declare the office vacant. 2001, c. 25, s. 265 (2).
Application of S.O. 1996, c. 32
(3) Subsection 83 (3) and sections 85, 86 and 87 of the Municipal Elections Act, 1996 apply to the application as if it were an application under section 83 of that Act. 2001, c. 25, s. 265 (3).
Combined application
(4) The application may be combined with an application under section 83 of the Municipal Elections Act, 1996, in which case the applications shall be heard and disposed of together. 2001, c. 25, s. 265 (4).
[11] Notably, the legislation provides in s. 265(2) that if the court determines that the office of a member of the council has become vacant, it ”may” order the member removed from office and declare the office as vacant.
[12] Section 259 of the Municipal Act, 2001 defines a vacant seat as follows:
Vacant seat
- (1) The office of a member of council of a municipality becomes vacant if the member,
(a) becomes disqualified from holding the office of a member of council under section 256, 257 or 258;
(b) fails to make the declaration of office before the deadline in section 232;
(c) is absent from the meetings of council for three successive months without being authorized to do so by a resolution of council;
(d) resigns from his or her office and the resignation is effective under section 260;
(e) is appointed or elected to fill any vacancy in any other office on the same council;
(f) has his or her office declared vacant in any judicial proceeding;
(g) forfeits his or her office under this or any other Act; or
(h) dies, whether before or after accepting office and making the prescribed declarations. 2001, c. 25, s. 259 (1).
Exception
(2) Clause (1) (e) does not apply to vacate the office of a member of an upper-tier council when the member is appointed head of council if the composition of council requires or permits the member to hold both offices. 2001, c. 25, s. 259 (2).
Dual vacancies
(3) If one of the offices of a person who is a member of council of both a local municipality and its upper-tier municipality becomes vacant under this section, the other office also become vacant. 2001, c. 25, s. 259 (3).
Exception
(4) Subsection (3) does not apply to vacate an office of a member when another office of the member becomes vacant if the composition of the councils does not require the member to hold both offices. 2001, c. 25, s. 259 (4).
[13] Although the applicant’s motion for the interim and interlocutory injunction is supposedly based on the provisions of s. 265 of the Municipal Act, 2001, s. 83 of the Municipal Elections Act, 1996 S.O. 1996, C. 32 provides the substantive and procedural legislative basis for an elector to make an application to the Superior Court of Justice for a determination as to whether an election is valid and whether a person’s election to an office in the election is valid. Section 83 provides as follows:
Application
- (1) A person who is entitled to vote in an election may make an application to the Superior Court of Justice requesting that it determine,
(a) whether the election is valid;
(b) whether a person’s election to an office in the election is valid;
(c) if a person’s election to an office is not valid, whether another person was validly elected or is entitled to the office;
(d) if an election is not valid or a person’s election to an office is not valid, whether a by-election should be held. 1996, c. 32, Sched., s. 83 (1); 2002, c. 17, Sched. D, s. 34 (1).
Time
(2) The application shall be commenced within 90 days after voting day. 1996, c. 32, Sched., s. 83 (2).
Summary procedure
(3) The application shall be dealt with in a summary manner, without application records or factums. 1996, c. 32, Sched., s. 83 (3).
Service
(3.1) The applicant shall serve a copy of the application on the clerk or secretary of the municipality or local board to which the application relates within 5 days after the day the application was made under this section. 2002, c. 17, Sched. D, s. 34 (2).
No other avenue
(4) A proceeding to determine a matter described in clause (1) (a), (b), (c) or (d) may be commenced only under subsection (1). 1996, c. 32, Sched., s. 83 (4).
Compensation
(5) If the court orders that a by-election be held, it may make such order as it considers just against a person whose act or omission unlawfully affected the result of the election, for the compensation of candidates at that election. 1996, c. 32, Sched., s. 83 (5).
Effect of procedural irregularities
(6) The court shall not determine an election to be invalid if,
(a) an irregularity described in subsection (7) occurred at the election but did not affect the result of the election; and
(b) the election was conducted in accordance with the principles of this Act. 1996, c. 32, Sched., s. 83 (6).
Same
(7) Clause (6) (a) applies to the following irregularities:
An irregularity on the part of the clerk or in any of the procedures before voting day.
Failure to have a voting place open at the appointed location and time.
Non-compliance with a provision of this Act or of a regulation, by-law, resolution or procedure made, passed or established under this Act, dealing with voting, counting of votes or time requirements.
A mistake in the use of forms, whether prescribed or not. 1996, c. 32, Sched., s. 83 (7).
[14] The respondent Medeiros, in opposing the present motion for injunctive relief, takes the position that the application and this motion are statute barred, as the application was not commenced within 90 days after the voting day, namely October 27, 2014, as required by s. 83 (2) of the Municipal Elections Act, 1996. Counsel for the applicant asserts that the application and the motion for injunctive relief are not governed by s. 83 of the Municipal Elections Act, 1996, but rather by s. 256 of the Municipal Act, 2001.
[15] Section 17(2) of the Municipal Elections Act, 1996 sets out to the qualifications for an elector who may be entitled to vote in a municipal election and reads as follows:
Qualifications
(2) A person is entitled to be an elector at an election held in a local municipality if, on voting day, he or she,
(a) resides in the local municipality or is the owner or tenant of land there, or the spouse of such owner or tenant;
(b) is a Canadian citizen;
(c) is at least 18 years old; and
(d) is not prohibited from voting under subsection (3) or otherwise by law. 2002, c. 17, Sched. D, s. 5 (2); 2005, c. 5, s. 46 (1).
[16] Section 2(1) and (2) define a person’s residence for the purposes of the Municipal Elections Act, 1996 and provides as follows:
Residence
2.(1)For the purposes of this Act, a person’s residence is the permanent lodging place to which, whenever absent, he or she intends to return. 1996, c. 32, Sched., s. 2 (1).
Rules
(2)The following rules apply in determining a person’s residence:
A person may only have one residence at a time.
The place where a person’s family resides is also his or her residence, unless he or she moves elsewhere with the intention of changing his or her permanent lodging place.
If a person has no other permanent lodging place, the place where he or she occupies a room or part of a room as a regular lodger or to which he or she habitually returns is his or her residence. 1996, c. 32, Sched., s. 2 (2). (Emphasis added)
[17] It was submitted on behalf of the respondent Medeiros that he was a person entitled to be an elector within the meaning of s. 17 of the Municipal Elections Act, 1996 and as such he was entitled to seek election as a member of a municipal council in accordance with ss. 256 and 257 of the, Municipal Act, 2001.
[18] It was the position of the respondent that he met the residency requirements as set out in the definition in s. 2(2), under Rule 2 of the Municipal Elections Act, 1996, on the basis that the affidavit evidence submitted by him demonstrates that, while he had a family residence in Mississauga, which was occupied by his wife and children, he had formed a plan in the spring of 2014 to move to Brampton. At the time he submitted his application as a candidate to run for municipal and regional council, he had left his matrimonial home at Derrydale and had taken up residence with his parents at the Higgins address in Brampton.
[19] Notably, respondent’s affidavit did not expressly state that it was his intention to change his residence to Brampton on a permanent basis.
[20] Counsel for the respondent the City of Brampton advised that it opposed the granting of the injunctive relief sought.
[21] It is well established that the granting of injunctive relief is governed by the principles set forth by the Supreme Court of Canada in its decision in R.J.R. MacDonald Inc. v. Canada (Attorney General) 1994 117 (SCC), [1994] 1 S.C.R. 311. The court outlined the three stage test when considering an application for an interlocutory injunction.
[22] Firstly, a preliminary assessment must be made as to the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application was refused and finally an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.: RJR at para. 43.
[23] As to the preliminary assessment as to whether there is a serious question to be tried and that the claim is not frivolous or vexatious, I have concluded that the validity of the respondent’s election is a serious question and the applicant’s assertions, on their face, do not appear to be frivolous or vexatious. However, on the conflicting and untested affidavit material it is difficult to assess fully the strength of the applicant’s case.
[24] The strength of the applicant’s case is also in question in that the substantive and procedural route to be taken by him may more properly be pursuant to s. 83 of the Municipal Elections Act, 1996 as opposed to pursuant to s. 265 of the Municipal Act, 2001. That being the case, it is certainly arguable that the applicant’s right to make an application to this court for a determination as to the validity of the respondent’s election is statute barred pursuant to s. 83(2).
[25] While there is said to be a presumption of regularity in that only individuals who are entitled to vote have in fact received ballots, counsel offered no submissions as to whether the presumption of regularity extends to the question of whether an individual who was an eligible elector is therefore entitled to seek election as a councillor: Cusimano v. Toronto (City) 2012 ONCA 907 at paras.39-40.
[26] Turning to the second consideration to be examined, namely whether the applicant would suffer irreparable harm if the application were refused, as noted by the court in RJR at para. 58:
At this stage the only issue to be determined is whether a refusal to grant relief could so adversely affect the applicant’s own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.
[27] The applicant has offered no evidence that his own personal interests would be adversely affected if his application for the injunction was dismissed. The respondent Medeiros has deposed in his affidavit that as a Regional Councillor he has been involved in the Hurontario Light Rail Transit (“LTR”) alignment debate, relating to the construction of a rail transit line connecting Port Credit, Mississauga with downtown Brampton. He further states in his affidavit, which is not contradicted by the applicant, that the applicant, as a resident of Brampton, has continuously voiced his opposition to the LTR. While this is not openly put forward as evidence in the applicant’s affidavit material, this specific municipal question appears to underlie the application and the motion for the injunctive relief.
[28] If the applicant were to succeed on his application for injunctive relief, the respondent Medeiros would be deprived of an opportunity to vote and therefore in turn the citizens of Wards 3 and 4 would be deprived of their vote as well.
[29] On the other hand, if the applicant is denied the injunction sought, he is not left without recourse and a remedy, as it would be open to him to apply to the Superior Court of Justice to have any bylaw enacted quashed for illegality pursuant to s. 273 (1) of the Municipal Act, 2001.
[30] With respect to the consideration of the balance of convenience, the scope of powers of a municipality, such as Brampton, that are considered necessary or desirable in the public interest, are set forth in s. 11 of the Municipal Act, 2001. It is specifically provided in s. 11(3) that a municipality may pass bylaws respecting various matters within the sphere of its jurisdiction including with respect to highways and transportation systems: s. 11 (3) subparts 1 and 2.
[31] The applicant is a private citizen claiming to be asserting a public interest claim against the respondents. The court in RJR MacDonald stated at para. 68 as follows:
- When a private applicant alleges that the public interest is at risk that harm must be demonstrated. This is since private applicants are normally presumed to be pursuing their own interests rather than those of the public at large. In considering the balance of convenience and the public interest, it does not assist an applicant to claim that a given government authority does not represent the public interest. Rather, the applicant must convince the court of the public interest benefits which will flow from the granting of the relief sought.
[32] The court further stated that in considering the balance of convenience and irreparable harm factors in cases involving public authorities, the onus of demonstrating irreparable harm to the public interest is less than that in the case of a private applicant: see RJR MacDonald at para 71.
[33] Further, regarding the considerations in assessing the balance of convenience, it has been held that if injunctive relief is granted and allowed to stay in place without having a determination on the merits, as in this case as to the validity of the election of the respondent Medeiros, the applicant would essentially be granted the ultimate relief he is seeking in his application before any adjudication on that question by a court. The proper purpose of an interlocutory injunction is to preserve or restore the status quo, not to give the plaintiff his remedy until trial: Gould v. Attorney General of Canada, 1984 142 (SCC), [1984] 2 S.C.R. 124; Hurley v. Canada (Chief Electoral Officer) [1998] O.J. No. 1836; Harper v. Canada (Attorney General) [2000] 2 S.C.R. 57 at paras. 6 – 11.
[34] The applicant has failed to put forward any evidence to support the assertion that his purpose in seeking the injunction is to advance the public interest of the citizens of Brampton.
[35] Balancing the private interests, as asserted by the applicant, with the public interests at stake in allowing Brampton to carry out its municipal duties, and in preserving the public’s interest in the conduct of municipal business, including the involvement of the respondent Medeiros in that, I have concluded that the balance of convenience favours both of the respondents.
[36] For these reasons, I have concluded that the applicant’s motion for the interim and interlocutory injunction must be dismissed.
Daley, RSJ.
Released: November 9, 2015
COURT FILE NO.: CV-15-4784-00
DATE: 20151109
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PETER BAILEY
Applicant
- and –
MARTIN MEDEIROS and THE CORPORATION OF THE CITY OF BRAMPTON
Respondents
REASONS FOR JUDGMENT
Daley, RSJ.
Released: November 9, 2015