Court File and Parties

COURT FILE NO.: CV-18-594414 DATE: 20181210 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Building Industry and Land Development Association, Applicant – and – The Corporation of the Town of Oakville, Respondent

BEFORE: Justice E.M. Morgan

COUNSEL: Chris Paliare and Richard Stevenson, for the Applicant Sandra Barton, Rodney Northey, and Jennifer King, for the Respondent

HEARD: October 22, 2018

STANDING OF THE APPLICANT

[1] The Applicant, the Building Industry and Land Development Association ("BILD"), is an industry association representing developers, builders, and renovators. This Application brought against the Respondent, The Corporation of the Town of Oakville (the “Town”), is being heard together with Court File No. CV-18-591564, which is an application by Clublink Corporation ULC and Clublink Holdings Limited (together “Clublink”) against the Town (the “Clublink Application”) challenging a number of the Town’s by-laws implementing its cultural heritage policies. The by-laws in question relate to properties that are cultural heritage properties or that contain cultural heritage landscapes (the “Impugned By-laws”).

[2] The Application by BILD is effectively a companion proceeding to the Clublink Application. BILD is not itself a property owner with a property governed by any of the Impugned By-laws; rather, it is an association of businesses concerned about the operation of the Impugned By-laws. In bringing this Application it in effect supports the position of Clublink in the Clublink Application.

[3] In its factum, BILD describes itself and its interest as follows:

BILD is an association representing over 1,450 members in the land development, home building and professional renovation industry in the Greater Toronto Area. BILD is the voice of these members in land development and planning matters in the GTA. BILD's members own numerous properties in Oakville, and are in the business of acquiring properties in Oakville and elsewhere for the purpose of developing and building on them.

BILD’s members stand to be significantly affected by the operation of the Impugned By-laws. Of the 1000 hectares of land under active development or under proposal for development within the Town, over 584 hectares are associated with BILD member companies, containing over 14,000 residential units which are either approved or under proposal to be constructed.

[4] I note that BILD has not supported its Application with the affidavit of one of its members. Its one affiant in support of this Application is not an officer, director, or employee of BILD, but rather is an employee of a consulting company, Altus Group (“Altus”), that is apparently one of BILD’s members. I am not certain whether BILD is a legal entity or an unincorporated association; there does not appear to be any evidence in the record that specifically identifies its legal status.

[5] BILD acknowledges that Clublink’s parent company, TWC Enterprises Inc. (“TWC”), is also one of its members. Beyond TWC and Altus, the only evidence identifying BILD’s members is the generic description set out above. I do not know any of its other members, and I do not know if they are for the most part landowners, contractors, consultants, etc. Indeed, although counsel for BILD assert that the organization represents some 1,450 members, there is nothing in the evidentiary record to verify that figure. There is likewise nothing in the record to establish that BILD is the “voice” of its members in the land development industry, or what that might mean.

[6] Moreover, the only information contained in the Application record linking BILD members to the Town and the Impugned By-laws is that a certain number of BILD’s constituent members are “associated” with an area of land within the boundaries of the Town that might be impacted. Nothing in the record establishes what that actually means. Specifically, I do not know whether the BILD members referred to in this way are building contractors hoping to get business from property owners, or are themselves owners of property designated as heritage properties or located within a cultural heritage district (other than TWC, whose property held through Clublink is Glen Abbey – the property at issue in the Clublink Application). I likewise do not know how BILD’s members will be impacted by the Impugned By-laws, or whether and how BILD’s members differ in interest from anyone else within or outside of the Town.

[7] Although section 273(1) of the Municipal Act, 2001 provides that “any person” may apply to quash a by-law, the ability to do so is not unrestricted. The Court of Appeal made it clear in Galganov v Russell (Township), 2012 ONCA 409, at para 15, that the law of standing applies to a challenge to a municipal by-law. The Court narrowed the literal term of the statute and re-imported the traditionally more limited notion of standing [at para 15]:

[T]he court maintains the discretion to refuse to grant standing in accordance with the common law rules respecting standing. The words ‘any person’ in s. 273(1) of the Act mean ‘any person who has standing under the common law relating to standing.’

[8] At common law, a person challenging a public enactment must have either a private interest in the matter challenged or some form of public interest standing or: Des Roches v Wasauksing First Nation, 2016 ONSC 6578, at para 11 (Div Ct). The Court of Appeal has long made it clear that the applicant in such a case cannot be a complete stranger to the enactment or the exercise of public authority. The Court elaborated on this proposition at some length in Cowan v Canadian Broadcasting Corp., [1966] 2 OR 309, 311 (Ont CA), where it reasoned that such a plaintiff or applicant requires at the very least a special interest distinguishable from the public at large:

A plaintiff, in attempting to restrain, control or confine within proper limits, the act of a public or quasi‑public body which affects the public generally, is an outsider unless he has sustained special damage or can show that he has some "special interest, private interest, or sufficient interest". These are terms which are found in the law of nuisance but they have been introduced into cases which also involve an alleged lack of authority. Therefore, in an action where it is alleged that a public or quasi‑public body has exceeded or abused its authority in such a manner as to affect the public, whether a nuisance be involved or not, the right of the individual to bring the action will accrue as it accrues in cases of nuisance on proof that he is more particularly affected than other people.

[9] In order to meet the threshold test of private interest standing, the state action under challenge must have been a cause of damage or prejudice to the plaintiff/applicant, and the applicant must have a personal stake in the outcome of the litigation. That is, he or she must incur personal benefit or suffer personal harm depending on whether or not the sought-for relief is granted: Finlay v Canada (Minister of Finance), [1986] 2 SCR 607, at para 21.

[10] On the state of the record in this Application, BILD does not meet this test. There is nothing in the evidence that demonstrates this type of personal interest by BILD or its members. BILD has not said that it represents anyone actually subject to the Impugned By-laws, except, of course, for Clublink’s parent company, TWC. But Clublink already has the Clublink Application challenging the identical set of Impugned By-laws. If TWC were to bring a separate application in the way that BILD has done, it would doubtless be stayed as a redundancy and an abuse of process.

[11] The involvement of Clublink’s parent company as one of only two identified members of BILD – the other being Altus, a consulting company rather than a landowner and so clearly not an entity with a property stake in the operation of the by-laws in issue – raises yet another question about BILD’s Application. Clublink’s position in the Clublink Application is in some respects reflected and supported in BILD’s Application in that it challenges the enactment of the Impugned By-laws as being ultra vires the Town and too vague to be intelligible. However, one of Clublink’s primary concerns in the Clublink Application is that the Impugned By-laws exhibit a form of bias in singling it out for unique treatment. That is, Clublink claims that although the Town’s measures are drafted in seemingly generic terms and are posed as being by-laws of general application, they are in fact aimed at no one but Clublink and its Glen Abbey property.

[12] Clublink argues in the Clublink Application that the Town has imposed special burdens on the Glen Abbey property – e.g. the requirement to adhere to a Conservation Plan and to meet stringent criteria imposed by the Town before making any alteration touching on its property’s cultural heritage status as defined in that plan – that are not imposed on any other property owner. That position, of course, is contradictory to the position represented by BILD in this Application. If the Impugned By-laws uniquely target Clublink’s property, then by definition they do not impact on other property owners. Even if there were evidence that at least one of BILD’s other constituent members are property owners potentially subject to the Impugned By-laws (which, as indicated, there is not), none of BILD’s members other than TWC could logically have a private interest in a case that is supposedly unique to the Glen Abbey property.

[13] That leaves the possibility that BILD has a public interest in bringing its Application. There, too, the field is not entirely open for any concerned person or entity to bring a challenge to a law or by-law. As Cromwell J. observed in Downtown Eastside Sex Workers United Against Violence Society v Canada (Attorney General), 2012 SCC 45, [2012] 2 SCR 524, at para 1, “it would be intolerable if everyone had standing to sue for everything, no matter how limited a personal stake they had in the matter.” The Supreme Court of Canada has put the requirement that a plaintiff or applicant have some specific interest in rather dramatic terms: “It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important”: Canadian Council of Churches v The Queen, [1992] 1 SCR 236, at para 35.

[14] The test for public interest standing was set out by the Supreme Court of Canada in Downtown Eastside, at paras 29-36. That three-part test has been usefully summarized by counsel for the Town in their factum:

The test has three parts, each of which should be applied in light of one another and in light of the underlying purposes of each:

1. Is there a serious justiciable issue that is important?
2. Has the applicant demonstrated a genuine interest in the issues? This is determined by the applicant having a ‘real stake in the proceedings.’
3. Is the challenge, in all of the circumstances, a reasonable and effective means of bringing the matter before the court? This is determined by weighing all the factors given the circumstances of the case, which include but are not limited to the following:
   • The plaintiff’s capacity to bring forward a claim, including its expertise, and whether the issue is sufficiently concrete and well-developed;
   • Whether case is of public interest so that it transcends those that are most directly affected (i.e. disadvantaged);
   • Whether there are realistic alternative means that present a more suitable context for adversarial determination; and
   • The potential impact of the proceedings on the rights of others who are equally or more directly affected.

[15] The first part of the test is certainly met here; there is a serious and important justiciable issue with respect to the validity of the Impugned By-laws. That fact is amply demonstrated by the Clublink Application. As indicated, Clublink challenges the same Impugned By-laws without raising a threshold issue of standing since the Town has sought to enforce these very by-laws against it.

[16] The second part of the test is more doubtful. BILD does not have a genuine private interest in the proceeding, but it may have a genuine public interest in the issues. The problem is that from the Application materials file by BILD it is difficult to make this determination. It may well have some expertise, since one of the two known members is a consulting company that does work for the development industry. But that is the thinnest possible thread of a connection to the issues in the case.

[17] No one from BILD has testified as to what, exactly, BILD has to offer other than to add another set of counsel and more legal arguments in support of the Clublink Application. I have no hesitation in saying that BILD has retained counsel who make interesting and potentially useful legal arguments; I just don’t know what BILD has to do with it. Anyone can retain good counsel, but, as the appellate courts have said, not anyone can bring a case.

[18] That concern provides a complete answer to the third part of the public interest standing test. BILD’s challenge is not what I can characterize a “reasonable and effective means of bringing the matter before the court”. Specifically, the question of “[w]hether there are realistic alternative means that present a more suitable context for adversarial determination” has an obvious answer. The Clublink Application has done just that, and it has done so with a proper evidentiary record that gives the court a factual basis within which to evaluate the Impugned By-laws.

[19] The Supreme Court has stressed the role of public interest standing in ensuring that worthy cases are brought to court:

The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant.

Canadian Council of Churches, at para 36.

[20] In Nova Scotia (Board of Censors) v McNeil, [1978] 2 SCR 662 and Borowski v Canada (Attorney General), [1989] 1 SCR 342, public interest standing was broadened to include activist plaintiffs bringing test cases. Unlike in those cases where, “practically speaking”, there was no other way for the matter to be raised [McNeil, at 270-271], and there was no other party likely to bring a similar challenge to the legislation at issue [Borowski, at 597-598], the present Application is not necessary as a vehicle to bring the challenge to court. The Clublink Application fulfils this role without the need for a more tenuously connected litigant to bring its own Application.

[21] As a consequence, and unlike in McNeil and Borowski, a dismissal of the Application brought by BILD will not immunize the Impugned By-laws from review. Rather, their validity will be tested in the Clublink Application – i.e. in a context where there is no question as to their impact on the applicant.

Conclusion

[22] The Application by BILD is dismissed.

[23] Counsel for the parties may make written submissions on costs.

[24] I would ask that counsel for the Town provide me with brief submissions (no more than 2 pages) and a Costs Outline or Bill of Costs within two weeks of the date hereof. In turn, I would ask counsel for BILD to provide me with their equally brief submissions within two weeks of receiving the Town’s costs submission. The written submissions on costs may be emailed directly to my assistant.

December 10, 2018 Morgan J.