Court File and Parties

COURT FILE NO.: 10408/15

DATE: 2015 Nov 12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Fredrick Bracken

Applicant

– and –

Regional Municipality of Niagara Corporation

Respondent

COUNSEL:

Self-Represented

Laura M. Day, for the Respondent

HEARD: August 7, 2015

BEFORE: The honourable mr. justice r. j. nightingale

Reasons for Judgment

[1] Frederick Bracken brings this application for a declaration that a no trespass notice issued by the Chief Administrative Officer (“CAO”) of the Respondent Regional Municipality of Niagara (the “Region”) dated June 24, 2014 under the Trespass to Property Act (“TPA”) against him is unconstitutional. He alleges it violates his rights under Sections 2 and 7 of the Canadian Charter of Rights and Freedoms. He asks to be allowed to start attending Regional council chambers and council meetings immediately.

[2] The trespass notice prohibited the Applicant from entering the regional headquarters of the Region located at 2201 St. David’s Rd., Thorold for a period of one year. That effectively prevented him from attending Regional Council meetings which were held there. It stated that arrangements for entry by the Applicant for purposes of regional business may only be made by his contacting the CAO.

A Threshold Issue: Mootness

[3] The Region raised the issue of mootness for the Court’s consideration as the trespass notice expired on June 25, 2015. This expiration date was after the commencement of this application on March 30, 2015 and cross examinations of the Deponents on their affidavits filed but before this application was heard on August 7, 2015.

[4] The Ontario Court of Appeal recently in The Commissioner of the Ontario Provincial Police et al v. Mosher et al 2015 ONCA 722 confirmed that the general principle of mootness would apply when a Court’s decision will not, in effect, resolve some controversy that affects or may affect the rights of the parties. As a general rule, Courts decline to decide cases in which their decision will have no practical effect on such rights of the parties. The essential element of a lis inter partes must exist not only when a proceeding commences but also when the court is assigned the task of deciding it.

[5] In my view, even though the Applicant is no longer barred from the Region’s headquarters and Council meetings, it is appropriate for the Court to exercise its discretion to decide the issues raised in this application despite some mootness that has arisen for the following reasons.

[6] Firstly, in reality there is still an adverse relationship that exists between the parties. The Applicant commenced a Small Claims Court action against the Region and other individuals initially in November 2014 claiming damages arising out of the Region’s same no trespass notice it served on him. That action has not been heard and has been adjourned in part because of the inability of the Small Claims Court in that action to render a declaration claimed by the Applicant regarding the constitutional validity of the no trespass notice; Section 97, Courts of Justice Act.

[7] The Region also agrees that a determination in this application of that issue will no doubt narrow the issues to be determined in the Small Claims Court action.

[8] Secondly, there is no concern for judicial economy in this application. The application was heard on its merits in its entirety in one day leaving only the decision of this Court now being rendered. The issues also involve some public importance of which a resolution would be in the public interest.

[9] Thirdly, there is no need for the Court in this case to be sensitive to its role as the adjudicative branch and avoid intrusions into the role of the legislative branch. The Commissioner of the Ontario Provincial Police, above; Gammie v. Town of South Bruce Peninsula [2014] ONSC 6209. It is not the TPA that is being constitutionally challenged; rather, it is simply the specific no trespass notice issued by the Region’s CAO that is.

Factual Background

[10] There is a dispute between the parties regarding some of the underlying facts that formed the basis of the no trespass notice issued by the Region’s CAO on June 24, 2014.

[11] Essentially, the Region’s position is that it was issued primarily but not solely because of the Applicant’s behaviour during his attendance at Region Council meetings on December 12, 2013 and June 19, 2014.

[12] At the first meeting, the Applicant was initially requested not to videotape the Council meeting to which he objected. The Region’s council members then discussed the matter openly and passed a motion permitting him and all members of the public to videotape Council meetings which were televised to the public anyway. The Applicant denied his temper and tension escalated when he was initially told to stop the video recording. He was not requested to leave that meeting because of any suggestion of disruptive behaviour. There was no evidence of the Applicant having any contact, communication or issues with Councillor Zimmerman at that meeting as confirmed by her evidence.

[13] In any event, nothing of significance occurred for the rest of that meeting or any subsequent Region Council meetings the Applicant attended until the one of June 19, 2014. His evidence was that he did not interrupt any meeting nor was any point of order raised about his behaviour. No TPA notice to the Applicant had been contemplated or drafted before that June 19 meeting.

[14] This dispute on the facts pertains to the extent and severity of the Applicant’s behaviour towards a particular council member, Ms. Zimmerman before that June 19 meeting commenced. His affidavit and cross-examination confirms he simply attempted to ask her a question from his position in the public gallery regarding why she was suing him personally because of an article he had written about her. She responded “would you get out of here” and walked away.

[15] Councillor Zimmerman alleged in her affidavit that the Applicant made unfounded allegations regarding her personal life unrelated to council business, he was uncivil when requesting an interview, he demanded answers to questions that did not involve regional business and he was so aggressive and spoke so loudly and quickly that she could not get a word in. She alleged after she walked away, the Applicant started pacing back and forth in the Council Chambers and she felt intimidated and threatened and unsafe. She complained to Mr. Schlange, the Region’s CAO, the following week on June 23 requesting that he ensure her right to work without harassment in the Council Chambers and essentially to issue a no trespass order against the Applicant.

[16] However, the Applicant’s videotape taken of that entire incident does not support the Zimmerman version of the severity of incident and appears to confirm that while standing behind the rail in the public gallery, he simply asked her why she was suing him for his reporting news of a personal matter involving her. There was no threat of violence or threatening or intimidating behaviour indicated in that videotape. She admitted as indicated on the video that her only response was “would you get out of here” before she walked away. She admitted on reviewing the videotape that her affidavit stating he demanded an interview was not correct.

[17] The Applicant was approached by Mr. Burroughs, the Regional Chairman requesting he not videotape the Councillor which the Applicant declined. The Applicant was never asked to leave that meeting by anyone on Council nor by the police officer who was present. The Applicant continued to attend the meeting that evening without incident.

[18] CAO Schlange, after some discussions with Regional Chair Burroughs, then advised members of Region Council on June 25, 2014 by individual emails to them that he would be issuing a notice of trespass to the Applicant giving the following reasons:

a) The Region had an obligation to ensure all individuals in regional facilities feel safe and free from harassment.

b) He and the Chair had received numerous concerns from the public, staff and members of Council with regard to the confrontational behaviour of the Applicant and he recently arranged for police presence during Council meetings to address his behaviour.

c) The Applicant had been approached on numerous occasions to correct his behaviour but they witnessed no significant improvement.

d) The notice of trespass was being issued to ensure no further harassment was experienced by anyone at regional headquarters.

[19] However, no reasons whatsoever were given for the issuance of the no trespass notice either in the notice itself or to the Applicant otherwise.

[20] It appears that the issue of the no trespass notice prohibiting the Applicant from attending future Region Council meetings for one year was never considered by Council as a whole nor was any resolution authorizing such a prohibition ever passed by Council. The head of Region council, being the Chairman Mr. Burroughs, at no time expelled the Applicant for improper conduct at the meeting on June 19, 2014 or at any prior or subsequent meeting of Council.

[21] The Applicant, as indicated above, strenuously denied those allegations in his affidavit and cross-examination. In addition, the affidavit and cross-examination evidence of Regional Councillor Andy Petrowski was that the Applicant did not yell at Councillor Zimmerman and that he asked her a question in a very calm, cool and collected manner as disclosed on the video. He confirmed he did not witness nor was he aware of any conduct or behaviour or unlawful conduct of the Applicant that evening that “crosses over the line” and would justify the issuance of a trespass notice. He confirmed that typically people approached Councillors to ask them questions coming into the chamber councillor sitting area which the Applicant did not do.

[22] The evidence of Gary Burroughs, the Region’s Chairman, in cross examination confirmed he was not aware of the Applicant ever breaking any of the Region’s rules, bylaws and regulations while on Region property. He stated Regional Council arranged for a police presence at council meetings after the December 12, 2013 meeting and admitted that the Applicant caused no issues when the police were present for Council meetings in April and May 2014.

[23] He admitted that the Council meeting had not yet commenced on June 19 when the Applicant from the public gallery posed a question to Councillor Zimmerman who was standing on the other side of the rail inside Council chambers. He also admitted that the Applicant was not engaging in any acts of physical violence. He simply stated that the Applicant had a “threatening appearance” because of his use of a camera when close to people.

[24] Burroughs admitted that he as Chairman of Regional Council had the ability under s. 241(2) of the Municipal Act to expel anyone in the Council chambers for improper conduct at the Council meeting. He did not do so at any time regarding the Applicant. He also admitted that he did not have the authority to ban people from future meetings of Council under the Municipal Act. When he stated that “it was decided” that the Region would issue a trespass notice prohibiting the Applicant from attending at regional headquarters (not all regional property) for a period of one year, he was not referring to any decision made by Regional Council-only he and Mr. Schlange made the decision.

[25] Rather, he admitted he also at no time brought before Council their decision to issue the no trespass notice to the Applicant so as to let the Councillors consider and vote as Council on the Applicant’s potential outright banishment from all future Council meetings. He was aware Council by bylaw could consider banning someone from council meetings. He suggested in this case it was a staff issue and issued by staff, the CAO.

[26] Burroughs frankly admitted that the no trespass notice issued banning the Applicant from Council meetings was how he and CAO Schlange dealt with Burrough’s request to the Applicant that evening not to film Councillor Zimmerman which request was declined by the Applicant.

[27] Further reference will be made to additional evidence and facts herein as required in the analysis.

Analysis

[28] Rule 14.05(3)(g.1) of the Rules of Civil Procedure specifically allows the Applicant to bring this application for a declaration that the trespass notice issued by the Region’s CAO violates his rights under the Canadian Charter of Rights and Freedoms.

[29] Although there are some factual disputes regarding the extent of the behaviour of the Applicant at the June 19, 2014 Region Council meeting, the facts that are not in dispute are sufficient to allow this Court to make a decision on this application based on the affidavits and cross examinations. The Respondent Region has not suggested that a trial of the issues is required and an application proceeding will not be converted into an action unless there is good reason to do so. In my view, the issues can be determined without the necessity to order a trial of the issues and the hearing of oral evidence from all of the witnesses involved.

[30] The effect of the no trespass notice which prohibited the Applicant from entering regional headquarters prevented the Applicant from attending any Regional Council meetings for that following one year period. The notice allowed him to enter the regional headquarters only for purposes of regional business by his first contacting Mr. Schlange the CAO. It did not ban him from entering other Regional property or buildings.

[31] There was no appeal or ban modification process provided or available to the Applicant with respect to the no trespass notice including its terms.

[32] However, it was evident that the Applicant only attended regional headquarters for the purpose of attending Regional Council meetings held there. He had never attended there on any other day until then other than on Council meeting days. He went regularly to Council meetings and had no business reasons for attending at regional headquarters. He is disabled and in receipt of ODSP income.

[33] It appears that the primary purpose or at least primary effect of the ban was to prevent his attendance at Regional Council meetings held there.

[34] Section 2 of the Charter gives the Applicant fundamental freedoms of conscience, religion, thought, belief, opinion and expression including freedom of the press and other media of communication, freedom of peaceful assembly and freedom of association. The main issue in this case is the Applicant’s right of freedom of expression under Section 2(b).

[35] Section 7 of the Charter confirms the Applicant has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[36] The Region issued a no trespass notice as the occupier of its premises at the regional headquarters under the TPA to the Applicant which was a government action within the meaning of section 32(1) of the Charter. The Charter is therefore applicable in this case. Batty v. Toronto (City) [2001] O.J. No. 5158.

Section 2(b) Argument

[37] The Supreme Court of Canada in Montréal (City) v. 2952 – 1366 Québec Inc. 2005 SCC 62, [2005] 3 S.C.R. 141 confirmed that the Court is required when considering claims under s. 2(b) of the Charter to address three questions:

a) Does the Applicant’s conduct or statement have expressive content?

[38] The Region concedes that the Applicant’s right to enter the Region’s Council chambers located at regional headquarters satisfies the requirement of expressive content but that is subject to the method and location of that expression. Gammie v. Town of South Bruce Peninsula 2014 ONSC 6209.

[39] The Region also concedes that the Council chambers are public property which the Applicant is entitled to use in exercise of his right to freedom of expression unless that right seriously interferes with the use of the public property by the city or other individuals.

b) If so, does the method or location of this expression remove that protection?

[40] The method or location of expression may be excluded from protection: for example, violent expression or threats of violence fall outside the scope of the Section 2(b) guarantee. Greater Vancouver Transportation Authority v. Canadian Federation of Students 2009 SCC 31, [2009] S.C.J. No.31 @ para 28.

[41] In this case, there is no evidence of actual physical violence or threats of physical violence by the Applicant to any members of Council, Region staff members or members of the public.

[42] Given the contents of the videotape of the June 19, 2014 pre- Council meeting discussion between the Applicant and Councillor Zimmerman, I am not satisfied on a balance of probabilities that the Applicant was violent or made threats of violence to her that reasonably caused her to fear for her safety. She was simply asked a question by the Applicant as to why she was suing him for his reporting on a matter involving her personally. She responded briefly and walked away.

[43] The videotape evidence is also contrary to the evidence of CAO Shlange that he observed on June 19 the Applicant yelling at Ms. Zimmerman and was confrontational and fixated on her. He baldly alleged the Applicant’s “attendance” at Council meetings was disruptive. However, he provided no specifics whatsoever of that including what, if anything, or when the Applicant did or said that was disruptive up to and including the June 19, 2014 meeting.

[44] Regional Chair Burroughs did not allege any violence or threats of violence from what he saw of that incident and nor did Regional Councillor Petrowski. There was no evidence from the attending police officer suggesting the Applicant was violent or threatened violence or was acting in an intimidating manner to anyone that evening. Rather, the evidence was that no one from Council itself including the attending police officer requested or required the Applicant to leave the meeting. There were no issues whatsoever regarding his behaviour while he thereafter attended the entire Region Council meeting.

[45] Regarding the Region’s concern about its staff, CAO Schlange in his affidavit only stated that he saw the Applicant “confront” members of staff at the Council meetings of December 12, 2013 and June 19, 2014. However, he provided no particulars whatsoever as to what he meant although he admitted the Applicant never entered the Council chamber reserved for Region staff and him on either date. In fact, he refused to provide any details as to which staff members complained of the Applicant’s behaviour prior to June 19, 2014 and what the complaints were. He stated they “expressed concerns of not being comfortable during their line of business” but they refused to sign an affidavit and he refused to give any details himself.

[46] Mr. Burroughs also stated the “concerns” of several staff and council members formed part of the reasons for the notice being issued. He refused to name them and simply stated they had concerns of their physical safety at the meeting and getting to the parking lot.

[47] Respondent’s Counsel suggested their right not to get involved should be respected. However, the Court requires there to be relevant admissible evidence on which it can rely and Rule 39.01(5) permits only statements of the Deponent’s information and belief that are not contentious if the source of the belief and fact of the belief are specified in the affidavit. This was clearly not the case here and, in any event, what was said by Schlange and Burroughs does not establish any violence or threats of violence towards staff or Councillors by the Applicant.

[48] CAO Schlange also admitted the Applicant had not broken any regional rules, regulations or bylaws on regional property and had not engaged in physical violence behaviour on regional property. He suggested there was “threatening behavior” which he defined as making staff and councillors feel “uncomfortable being where they are” and being videotaped individually by him and that they felt somewhat threatened by the way the Applicant asked questions.

[49] He admitted he never considered having a less restrictive TPA notice of less than one year but gave no reasons why not. He also admitted there was no ban modification process available to the Applicant and stated “we made it clear that we were going for the one year ban”. “It was one year, ban the Council meetings, he’s done, everything is done?” Answer: “That’s right”.

[50] Douglas Draper is a local reporter who attended Regional Council meetings. He alleged he received emails from the Applicant in April and May 2014 which included derogatory remarks about his ability as a journalist and about others. Mr. Draper was upset and said the emails made him “uncomfortable” and “concerned” about the Applicant’s behavior. He stated he stopped attending Regional Council meetings until he learned the Applicant was banned from them.

[51] Draper stated that he did not think the Applicant treated people in a respectful manner. He did not say that the Applicant threatened him with physical violence or treated him in a threatening manner at the Region and there is nothing in those emails that suggests any violence or threats of violence to him, any member of Council or Regional staff. He stated that the Applicant holding up a small sign during an earlier Council meeting that said ”social justice sucks” was “disturbing behaviour” to him but admitted there was no suggestion the Applicant threatened him with it.

[52] Accordingly, I am also not satisfied on the balance of probabilities that the Applicant was violent or made threats of violence that reasonably caused Regional Councillors or staff or members of the public to fear for their own safety so as to require a complete prohibition on the Applicant’s attending any future Region Council meetings for one year.

[53] The evidence does not establish that the Applicant exercised or attempted to exercise physical force against a Region staff member in the workplace that could cause physical injury to the staff member. Nor does the evidence establish that there was any statement or behaviour of his that was reasonable for a Region staff member to interpret as a threat to exercise physical force against the staff member in the workplace that would cause physical injury to him or her.

[54] Accordingly, the no trespass notice by the Region with respect to the Applicant’s attendance at Region Council meetings at regional headquarters was likely not necessary pursuant its obligations under Section 32.0.5 of the Occupational Health & Safety Act (“OHSA”). I am not satisfied that the evidence establishes that the Applicant’s right to attend Region Council meetings would seriously interfere with the use of the Region’s public property by the Region or other individuals. Gammie v. Town of South Bruce Peninsula, above.

c) Does the TPA notice infringe the Applicant’s protected expression, either in purpose or effect?

[55] In effect, the no trespass notice prohibited the Applicant from attending any future Region Council meetings for one year. The notice only permitted him to attend at regional headquarters for other regional business if he first contacted the Region CAO. However, as indicated, he never had any reason to go there for that.

[56] I do not accept the Region’s position that the Applicant still being entitled to simply watch the Region council proceedings on television or to contact Region Councillors by telephone or email to ask questions would be an acceptable restriction on his Sections 2(b) and 7 Charter rights. In my view, his s. 2(b) right is to actually be able to attend and participate in open public Council meetings if he is not violent or threatens violence and abides by the applicable rules. Gammie, above; Committee for Commonwealth of Canada v. Canada 1991 119 (SCC).

[57] I also do not accept the Region’s position that the purpose and effect of the TPA notice was only to prevent an unprotected form of expression i.e. the Applicant’s alleged threatening, aggressive and bullying manner towards individuals at Council meetings and disruptive conduct and demonstrations.

[58] Similar to the facts in Gammie, the notice preventing the Applicant from attending all Region Council meetings prohibited unprotected disruptive, violent activity but also freedom of expression that is protected.

[59] Again, the Applicant was never charged with any offence let alone a criminal offence regarding his conduct at the June 19, 2014 Council meeting. He was not asked to leave because of his alleged conduct by anyone including the attending police officer nor was he expelled from the meeting and there were no behavioral problems for the balance of the meeting he attended. Again, Mr. Burrough’s evidence was that the no trespass notice banning the Applicant from Council meetings was how he and Schlange dealt with the Applicant’s refusing his demands not to film Ms. Zimmerman.

[60] The effect of the Region’s notice prohibited the Applicant from attending at Regional Council meetings altogether for one year and accordingly, violated his right to freedom of expression.

Was the TPA notice protected by section 1 of the Charter?

[61] Under this section, the Charter guarantees the rights and freedoms of the Applicant only to such reasonable limits prescribed by law as can be demonstrated in a free and democratic society.

[62] The Region has the onus to establish that its trespass notice to the Applicant was justified as a reasonable limit prescribed by law under this section.

[63] Any limit on the Applicant’s Charter rights by the Region must be reasonable in that:

a) the objective which the limit is designed to serve must be of sufficient importance to warrant overriding a constitutionally protected right; and

b) the means chosen to obtain the objective are reasonably and demonstrably justified. R. v. Oakes 1986 46 (SCC), [1986] 1 S.C.R. 103; Gammie, above.

[64] The second criterion of the Oakes test has three components:

i) the measure must be carefully designed to achieve the objective in question (i.e. the measures must be rationally connected to the important objective that the limitation is designed to serve);

ii) the measure should impair the right or freedom in question as little as possible and

iii) there must be a proportionality between the effects of the limiting measure and its objective .

[65] Similar to Gammie, that the purpose of the no trespass notice may have been to preserve order at Region Council meetings and that the no trespass notice was connected rationally to the objective the Region had of maintaining order at its meetings and ensuring safety of Councillors and staff.

[66] However, even if that were so, the trespass notice has not satisfied the requirements that the notice would impair the right or freedom of the Applicant as little as possible and only to the extent necessary to promote its objective effectively. Gammie, above; R. v. Semple 2004 ONCJ 55, [2004] O.J. No.2137.

[67] The notice could have restricted the Applicant’s ability to ask questions and make presentations during future Council meetings regarding Council business only in accordance with the Region’s rules and procedural bylaws. It could have restricted his communication in a non-disruptive manner with Council members to the confines of Council chambers before Council meetings or alternatively restricted his communication with them by email or written correspondence.

[68] There was no attempt by the Region to restrict the Applicant’s attendance at council meetings as long as he didn’t disrupt or attempt to disrupt the proceedings. The notice could have made it clear that his right to attend future meetings would be in jeopardy and potentially taken away because of any improper conduct that would warrant his expulsion from the meeting by the Chair of Region Council under the Municipal Act.

[69] The notice, which prohibited his attendance at Council meetings for one year, could have been for a much shorter period of time at which point, the Region could then determine if his alleged disruptive behaviour was no longer an issue.

[70] The notice to protect staff could have confirmed that Region staff except the CAO would not be required to communicate or interact with the Applicant thereby restricting his communication and contact with Region staff altogether and requiring him to deal directly with the CAO only on any Region matters including at Council meetings.

[71] The Region has failed to explain why a significantly less intrusive but equally effective measure was not chosen and has not established that its restrictions of a complete ban for one year fell within a range of reasonably alternatives tailored objectively to the infringement so as to constitute a minimal impairment of the Applicant’s s. 2(b) freedoms.

[72] For similar reasons, the Region has not established that its total ban of the Applicant attending any future Region Council meetings for one year meets the test of proportionality between the effects of this limiting measure and its objective. He was allowed to videotape the proceedings since December 2013 and there were no significant behaviour problems at subsequent meetings albeit with police presence there. If at a meeting the Applicant exhibited improper conduct that obstructed the deliberations or proper action of Regional Council, the head of Council could exercise his power of expulsion under s. 241 of the Municipal Act. I disagree that there were no other practical means of balancing the rights of Regional councillors and staff and other members of the public other than to prohibit the Applicant’s attendance at council meetings and limit his attendance at regional headquarters for one year.

[73] Accordingly, the no trespass notice issued by the Region CAO effectively prohibiting the Applicant from attending all the Region’s Council meetings for one year infringed his right to freedom of expression and assembly under section 2(b) of the Charter and cannot be justified under section 1 of the Charter.

Application of Section 7 of the Charter

[74] The Applicant also suggests his Section 7 rights under the Charter have been violated by reason of the no trespass notice.

[75] Given my findings noted above, it is not necessary to decide that issue even though the effect of the Region’s prohibition prevents the Applicant from participating fully in or simply attending to watch in person Regional Council meetings enjoyed by the community in a free and democratic society. The issue is not so much the effect of the notice restricting the Applicant from attending at regional headquarters but rather his being prohibited from attending regular regional Council meetings located and conducted there.

[76] The Supreme Court of Canada has indicated that the individual’s protected activity rights under s. 7 of the Charter are restricted to those which are of fundamental personal importance, which are rooted in fundamental concepts of human dignity, personal autonomy, privacy and choice about matters which go to the individual’s fundamental being. B.R. v. Children’s Aid Society (1995) 1995 115 (SCC), 1 SCR 315; R v. S.A. 2014 ABCA 8191.

[77] The decision of R. v. Grant 2009 SCC 32 confirmed that courts must be careful not to trivialize the right to liberty under Section 7 or overshoot its purpose. As noted herein, it is Section 2 of the Charter on which citizens often rely, as in this case, when they have been prevented from assembling in public places.

[78] It is not necessary to decide whether Section 7 of the Charter is engaged in this matter and I decline to do so.

Authority of Region CAO to Issue the Trespass Notice

[79] This application was brought and advanced by the Applicant on the sole grounds that the Region’s no trespass notice of June 24, 2014 was unconstitutional in violation of the Applicant’s rights under Sections 2 and 7 of the Charter.

[80] The application and responding records and facta of the parties did not raise or refer to the issue of, nor was it argued, whether the Region CAO even had the authority on his own under the Municipal Act to administratively issue a valid no trespass notice to the Applicant prohibiting his attendance at future Regional Council meetings.

[81] Some of the issues might include the following:

[82] The Municipal Act s. 239 provides that all meetings of Region Council shall be open to all members of the public which would include the Applicant with some exceptions.

[83] Section 241 of the Municipal Act is the authority granted to the head of Council i.e. the Regional Chair, to expel members of the public from the council meeting for improper conduct but that does not give him authority to prohibit members of the public from attending future meetings.

[84] No resolution or bylaw was considered or passed by Regional Council to ban the Applicant from attending future Council meetings or to authorize the CAO to issue the no trespass notice to that effect.

[85] No injunctive proceedings were authorized or commenced by the Region restraining the Applicant from entering the Council chamber to attend meetings because of his alleged past disorderly conduct that disrupted Council meetings so that business could not be conducted. Rogers, The Law of Municipal Corporations 2d ed., p.238; Port Coquitlam v. Osberg 1993 2 D.M.P.L. 139 BCSC.

[86] There was no evidence from the Region regarding the existence of any procedural bylaw that allowed the Region’s CAO without Regional Council’s prior resolution or authority to issue the no trespass notice in question to the Applicant banning his attendance at future Council meetings.

[87] I point out these issues only for the purpose of confirming that this Court is not deciding the issue of whether the no trespass notice issued by the Region CAO was illegal or invalid for any of these or other reasons as compared to it being unconstitutional because of violations of the Applicant’s Charter rights which was the only issue raised and argued before this Court. It would accordingly not be appropriate for the Court to consider or decide that issue in these circumstances.

[88] However, nothing in this decision should be interpreted as any indication of this Court confirming the validity or invalidity of that no trespass notice on that basis.

Conclusion

[89] The application is allowed. The trespass notice issued by the Regional Municipality of Niagara Corporation to the Applicant dated June 24, 2014 is invalid and is of no force and effect.

[90] If the parties are unable to agree on the costs of this application, the Applicant can make submissions of no more than three pages in length together with a bill of costs within 15 days from the date of this decision. The Respondent shall similarly have a right of response within 10 days thereafter. Otherwise there will be no order as to costs.

The Honourable Mr. Justice R. J. Nightingale

Released: November 12, 2015

COURT FILE NO.: 10408/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Fredrick Bracken

Applicant

– and –

Regional Municipality of Niagara Corporation

Respondent

REASONS FOR JUDGMENT

The Honourable Mr. Justice R. J. Nightingale

Released: November 12, 2015