Court File and Parties

COURT FILE NO.: CV-18-591760

DATE: 20180309

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: city of toronto and the clerk of the city of toronto, Applicants

AND

anthony natale and justin di ciano, Respondents

BEFORE: Swinton J.

COUNSEL: Glenn K.L. Chu, Diana Dimmer, Brendan O’Callaghan and Matt Schuman, for the City of Toronto, Applicants

Bruce Engell and Sylvain Rouleau, for the Respondents

HEARD: March 2, 2018

ENDORSEMENT

[1] The City of Toronto and the Clerk of the City of Toronto (the “applicants”) have brought an application pursuant to rule 14.03(3)(d) and (h) of the Rules of Civil Procedure seeking declaratory relief. The respondents are two individuals who brought a motion for leave to appeal a decision of the Ontario Municipal Board (the “Board”) dated December 15, 2017 that approved two Toronto by-laws putting in place a 47 ward structure for the 2018 municipal election and following elections. Leave to appeal has been denied (see 2018 ONSC 1475).

[2] In their leave to appeal materials, the respondents raised a question whether there was a “legal vacuum” because the 47 ward structure comes into effect in accordance with s. 128(8) of the City of Toronto Act, S.O. 2006, c. 11, Sch. A (“COTA”) – that is, for the October 22, 2018 election, because the Board’s decision was made before January 1, 2018. They suggest that this creates a legal vacuum, because Toronto City Council did not pass a by-law changing the composition of council from 44 to 47 councillors before the end of 2017 in accordance with s. 135 of COTA.

[3] In this application, the applicants seek three declarations:

(a) That City of Toronto By-laws 267-2017 and 464-2017, as amended by the order of the Board, “shall come into force on the day the new council of the City of Toronto is organized following the 2018 City of Toronto election on October 22, 2018”;

(b) That the composition of the council for the election is one councillor for each of the 47 wards set out in the By-laws, plus a mayor, for a total of 48 members of council; and

(c) That the election shall be conducted as if the By-laws were already in force.

[4] A court has a discretion whether to grant declaratory relief (Grain Farmers of Ontario v. Ontario (Ministry of the Environment and Climate Change), 2016 ONCA 283 at para. 15). Courts are reluctant to grant such relief where there is no immediate effect on rights and interests, but rather a future effect. As the Supreme Court of Canada stated in Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821 at p. 831:

Declaratory relief is a remedy neither constrained by form nor bounded by substantive content, which avails persons sharing a legal relationship, in respect of which a “real issue” concerning the relative interests of each has been raised and falls to be determined.

[5] In discussing the requirement that there be a “real issue”, the Supreme Court stated (at p. 832):

It is clear that a declaration will not normally be granted when the dispute is over and has become academic, or where the dispute has yet to arise and may not arise.

In that case, the Court proceeded to determine the merits of an ongoing dispute about the authority of personnel in a federal penal institution to open correspondence between an inmate and his lawyer. The Court noted that there was a real issue to determine, and a declaration would be of practical importance.

[6] The Supreme Court reiterated that “there must be a cognizable threat to a legal interest” in Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441 at para. 33. Courts are also unlikely to grant declaratory relief where the declaration has no purpose other than to repeat legislation or common law (Godin v. Sabourin, 2016 ONSC 770 at para. 16).

[7] In the present proceeding, I see no purpose to the declarations sought in paragraphs (a) and (c) of the prayer for relief, other than to repeat what is stated in s. 128(8) and (9) of COTA. For that reason, I decline to grant the relief sought in those paragraphs. Section 128 deals with the authority to pass by-laws to change the ward structure. Subsection 128(8) states in part:

The by-law comes into force on the day the new city council is organized following,

(a) the first regular election after the by-law is passed if the by-law is passed before January 1 in the year of the regular election and,

(iii) notices of appeal are filed and the Board issues an order to affirm or amend the by-law before January 1 in the year of the election; …

Subsection 128(9) provides that “Despite subsection (8), where the by-law comes into force on the day the new city council is organized following a regular election, that election shall be conducted as if the by-law was already in force.”

[8] With respect to paragraph (b), the applicants say they are seeking a ruling on the extent of the Clerk’s “rights” for purposes of running the 2018 election. In fact, they are seeking a declaration about the composition of City Council so that they can give guidance to the Clerk in exercising her “powers” in conducting the election.

[9] They argue that the proposed declaration with respect to the composition of council is justified on one of three bases: the OMB order upholding the ward boundary by-laws changed the composition of council; a Confirmatory By-law 1108-2016, passed in November 2016, is a by-law providing for an increase to 47 councillors; or the effect of other legislative measures is to continue a system of one councilor per ward – now, 47 councillors.

[10] It is not appropriate to exercise my discretion to grant this declaratory relief. First, I am not satisfied there is a real issue between the respondents and the applicants. The respondents have suggested that there may be a problem with respect to the composition of council. However, there is no legal dispute between the applicants and respondents about their respective rights or interests.

[11] Second, I am not satisfied that the appropriate parties have had notice and an opportunity to be heard. The proposed declaration affects not only the two respondents here, but potentially all voters in the City of Toronto. They have not been given notice, and no one other than the two individual respondents is before me.

[12] Moreover, this is not a case where I am really being asked to interpret a statute in order to determine rights. Rather, the City and the Clerk are, in effect, bringing a reference, asking for the Court’s opinion to guide the Clerk in the exercise of her powers. It is not an appropriate judicial role to give a declaration of rights in this situation, where there is no live dispute and not all affected parties have been notified.

[13] Accordingly, I decline to exercise my discretion to grant any of the declaratory relief sought. The application is dismissed. The parties have agreed that there will be no costs.

Swinton J.

Date: March 9, 2018