COURT FILE NO.: CV-14-119836

DATE: 20180406

SUPERIOR COURT OF JUSTICE - ONTARIO

RE:

Marvin Blanchard and 1124123 Ontario Limited and Baldwin 33, Inc., Applicants

AND:

The Corporation of the Town of Georgina, Her Majesty the Queen in Right of Ontario and the Ontario Aggregate Resources Corporation, Respondents

BEFORE: The Honourable Madam Justice A.M. Mullins

COUNSEL: Al Burton, Counsel for Marvin Blanchard, 1124123 Ontario Limited and Baldwin 33, Inc.

John R. Hart, Counsel for The Corporation of the Town of Georgina

HEARD: January 22, 2018

ENDORSEMENT

[1] Marvin Blanchard, 1124123 Ontario Limited (“112 Ontario”), and Baldwin 33, Inc. (“Baldwin 33”), made an application on August 28, 2014, seeking, among other things, an order that the Corporation of the Town of Georgina, (the “Town” or the “Respondent”) approve a Fill Application dated December 3, 2012 with respect to 6003 Smith Boulevard, Georgina, Ontario (the “Property”), which is owned by Baldwin 33.

[2] The Applicants seek an order to compel the Town to take all such steps as are needed to secure approval of the agreement and/or to compel the Town’s Director to forthwith issue a permit as well as costs on a substantial indemnity basis. The Respondent seeks an order dismissing this application and costs on a substantial indemnity basis.

Background

[3] On January 25, 2011, Mr. Blanchard submitted an Application to Place Fill or Alter the Grade of the Land; in effect to allow the importation and placement of 700,000 cubic meters of fill to the Property. On April 11, 2011, the application was again submitted because the deposit attached to the January 25 application had been misplaced.

[4] On April 26, 2011, the Town passed By-Law 2011-0044, which re-set the requirements for fill applications. On May 4, 2011, the Town informed Mr. Blanchard that his April 11 Fill Application did not meet the requirements under By-Law 2011-0044 and he would be obliged to would be required to apply under the new by-law. Mr. Blanchard duly submitted a fresh Fill Application, on December 3, 2012, under the new by-law. Council having refused his request that his earlier Fill Application be considered under By-Law 91-139.

[5] The Town Council of Georgina (the “Council”) considered the December 3 Fill Application on October 15, 2013. It did not make a decision. Instead, it set out a number of requirements for Mr. Blanchard to perform in order to meet the Town’s requirements for the issuance of the permit. Mr. Blanchard amended the fill application to reduce the quantity of fill to be imported to 298,000 cubic metres.

[6] On April 9, 2014, the amended Fill Application was considered by Council at a public meeting, during which Mr. Blanchard and interested members of the public made representations to the Council. The Council reviewed Report No. OED-20140010, which had been prepared by Town staff to assist the Council’s consideration of the application. The Council did not make a decision on the Fill Application on this occasion either. Instead, it passed Resolution C-2014-0238, which, among other things, referred the application to the Chief Administrative Officer (“CAO”) “to prepare a report to co-ordinate a response to all issues raised at [the April 9, 2014] meeting.”

[7] Sometime in July 2014, Mr. Blanchard, according to the Respondent, began to import fill onto the Property despite his license under the Aggregate Resources Act, R.S.O. 1990, c. A.8, not permitting such activity. On July 16, 2014 and August 21, 2014, the Council held two in camera meetings to receive legal advice in respect of Mr. Blanchard’s Fill Application.

[8] On August 28, 2014, the Applicants made the application that is the subject of the within proceeding. Justice MacDougall ordered that the Council consider and make a decision on the Fill Application on or before April 24, 2015. On April 22, 2015, the Council met to consider the Fill Application. It heard presentations by the Applicants and interested members of the public, and also considered the CAO’s Report No. CAO-2015-001, dated September 9, 2014, regarding the Fill Application. In the end, the Council refused the Fill Application.

Key Issues

[9] The Applicant identifies two issues, in the Factum, namely (1) what is the applicable standard of review; and (2) whether this court ought to make an order in the nature of mandamus?

[10] The Respondent identifies only one issue in its Factum, namely whether the Court should intervene in the Council’s decision refuse the Fill Application in respect of the Property.

Key Positions of the Parties as per the Facta

Issue 1: What is the applicable standard of review?

[11] The Applicant argues that the applicable standard is correctness because the question to be determined by the court is a question of law, namely whether the Council exceeded its jurisdiction under the By-Law 2011-0044 by refusing to issue the permit.

[12] The Respondent does not squarely make a standard of review argument, but at paragraphs 45 and 46 of its factum, argues that the court should adopt a generous, deferential standard of review toward the decision of municipalities.

Issue 2: Whether this court ought to intervene in the Council’s decision on April 22, 2015 refusing the Fill Application by entering an order of mandamus?

Applicant’s Position

[13] The Applicant argues that Apotex Inc. v. Canada (Attorney General), 1993 FCA 3004, sets out the principles that must be satisfied before mandamus will issue. Those principles are summarized as follows:

1. There must be a public legal duty to act;

2. The duty must be owed to the applicant;

3. There is a clear right to performance of that duty, in particular:

(a) the applicant has satisfied all conditions precedent giving rise to the duty

(b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay;

4. Where the duty sought to be enforced is discretionary, the following rules apply:

(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as "unfair", "oppressive" or demonstrate "flagrant impropriety" or "bad faith";

(b) mandamus is unavailable if the decision-maker's discretion is characterized as being "unqualified", "absolute", "permissive" or "unfettered";

(c) in the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to "irrelevant", considerations;

(d) mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way; and

(e) mandamus is only available when the decision-maker's discretion is "spent"; i.e., the applicant has a vested right to the performance of the duty;

5. No other adequate remedy is available to the applicant;

6. The order sought will be of some practical value or effect;

7. The court in the exercise of its discretion finds no equitable bar to the relief sought; and

8. On a “balance of convenience” an order in the nature of mandamus should (or should not) issue.

[14] The Applicant argues that an order of mandamus is warranted because the instant case satisfies seven of the eight principles above, for the following reasons:

[15] Principles 1 and 2 are satisfied because By-Law 2011-44 imposes a mandatory obligation on the Director to issue the permit if the application meets the requirements of the by-law. Part 4.4 of By-Law 2011-44 states that the Director shall issue a permit if (a) the site alteration is not within an area where site alteration is prohibited and (b) the applicant has fulfilled all requirements of Part 4.1 and entered into an agreement approved by Council. The Applicant argues that its Fill Application satisfies requirements (a) and (b) and therefore, the Director owes a duty to the Applicants to issue the permit pursuant to Part 4.4.

[16] Principle 3 is satisfied because the Applicants’ repeated requests for permit issuance were met with “outright refusals” even though they had satisfied all the condition precedents for a permit. The Applicants go on to argue that the Council does not itself have the power under By-Law 2011-44 to refuse Fill Applications. One of the condition precedents for a permit, is that owners of fill operations in excess of 2000 cubic metres must enter into an agreement with the Town approved by Council. The decision of whether to issue a permit and the decision of whether to approve an agreement are separate matters. The Council has the power to decide whether to approve agreements with owners, but it does not have the power to directly decide whether a permit should be granted. That interpretation of the Council’s powers appears to be confirmed by the April 9, 2014 report prepared by Town staff for the Council’s consideration:

It should be noted that Council, in accordance with Part 4.3 of the Site Alteration by-Law and following a public meeting, may decide whether or not to enter into a Site Alteration Agreement, based on the information provided by the owner, his consulting engineers and Town staff. Should Council endorse the execution of an agreement, the Director will issue a permit in accordance with Part 4.4 of the By-Law. [Emphasis added]

[17] The Respondent has not addressed this issue. Since site-plan agreement approval by Council is a prerequisite to the Director’s issuance of a permit for fill operations in excess of 2000 cubic metres, submit the Applicants, if Council exercises its discretion to withhold approval of a site-plan agreement, its decision would necessarily, albeit indirectly, prevent the granting of a fill application that otherwise met the requirements for permit issuance. By-Law 2011-44 does not confer on Council a discretion to directly grant or deny permits, but it does confer on Council the discretion to decide whether a condition precedent to permit issuance is satisfied: namely Council alone has the discretion to bestow or withhold approval for site-plan agreements.

[18] Principle 4 does not apply because Council does not have the discretion to refuse issuance of permits. In the alternative, Council acted in bad faith and relied on irrelevant considerations, thereby violating rules 4(a) and 4(c) of Apotex.

[19] In regard to Principle 5, the Applicants do not offer any argument as to why an order of mandamus is the only adequate remedy available; offering only that there is no right of appeal under By-Law 2011-44.

[20] In regard to Principle 6, an order of mandamus has the practical effect of compelling the issuance of the permit and thereby allowing the Applicants to commence the fill operation.

[21] In regard to Principle 7, the Applicants come to the Court with clean hands, having met all the by-law requirements and not unreasonably delayed the commencement of the within proceeding.

[22] The Applicants do not offer any argument as to why a balance of convenience favours the issuance of an order of mandamus.

Respondent’s Position

[23] The Respondent takes the position that the Council has the final decision-making authority to decide whether a Fill Application ought to be approved. On April 22, 2015, the Council exercised that authority in refusing the Fill Application. As a result of that decision, the Director cannot issue a permit because “the Town has elected not to enter into the agreement contemplated in the provisions of Section 4.2 of By-Law 2011-0044”.

[24] The Respondent argues that courts ought to apply a generous, deferential approach rather than a pro-interventionist approach to the review of the exercise of municipal powers. The court is “prohibited” from quashing a by-law on the ground of unreasonableness, real or supposed, provided the council in passing it acted in good faith. The remedy contemplated in this case does not entail the quashing any provision of the by-laws, wherefore this latter point is not relevant. The issue is not whether the Council acted improperly in the passing of the by-laws, but rather whether it acted improperly in denying a Fill Application by exceeding its powers under the by-laws given that its decision making authority appears limited to granting/withholding approval to site-plan agreements proposed in connection to fill applications.

[25] The Applicants bear the onus of establishing that Council’s decision to deny the Fill Application was made in bad faith. The bad faith exercise of municipal powers includes behaviour that (1) lacks the degree of fairness, openness, and impartiality required of a municipal government, or (2) constitutes unreasonable and arbitrary action. The Applicants have failed to satisfy their onus.

[26] The Respondent argues that in considering the Fill Application, Council was performing a quasi-judicial role rather than a legislative function. The quasi-judicial nature of its role created a duty to provide certain procedural fairness rights to the Applicants; a duty which they discharged. The Respondent argues that the Applicants rights to procedural fairness were met, in part, by having the opportunity to make representations before Council. But the Respondent fails to address the real nub of the procedural unfairness alleged by the Applicant, which is that the Council denied its Fill Application when it had no authority to do so under the by-laws. Under the by-laws, the Council could have caused the Fill Application to fail by withholding its approval of the agreement, but it cannot deny a permit directly. The Respondent then goes on to say that there is no duty to act with procedural fairness where a municipal council is making a decision of a legislative nature, rather than an administrative decision.

Disposition

[27] The Applicants ask this court to interpret the by-law such that the Council has the power to decide whether to approve agreements with owners, but it does not have the power to directly decide whether a permit should be granted and grant mandamus to compel the issue of a permit from the director as defined under the by-law.

[28] McDougall J. ordered the Municipal Council to consider and decide the application for a permit to place fill. Council did as ordered, eventually. It appears to me, upon reflection, that this Court may not have jurisdiction to decide these matters, given section 6(1), of the Judicial Review Procedure Act, R.S.O. 1990, c. J-1, unless leave had been granted in light of urgent circumstances, as the relief sought in the Application is in the nature of that referred to in section 2 of the JRPA and must go to the Divisional Court. As the issue of the jurisdiction of this court was not raised in argument at the hearing of this matter, counsel are at liberty to make submissions on this jurisdictional issue, should they wish. I leave it to counsel to elect whether to make submission in writing or on appearance. Failing the receipt of submissions or notice to the trial coordinator of a need to schedule a date within 60 days, I will dismiss the application for lack of jurisdiction. Costs may be spoken to at a later date.

Justice A.M. Mullins

Date: April 6, 2018