RSJ Holdings Inc. v. London (2007), 226 O.A.C. 375 (SCC)
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[French language version follows English language version]
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Temp. Cite: [2007] O.A.C. TBEd. JN.084
Corporation of the City of London (appellant) v. RSJ Holdings Inc. (respondent)
(31300; 2007 SCC 29; 2007 CSC 29)
Indexed As: RSJ Holdings Inc. v. London (City)
Supreme Court of Canada
Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
June 21, 2007.
Summary:
RSJ Holdings bought a property in London, Ontario, in a residential area. RSJ intended to demolish a one storey dwelling on the property and build a fourplex which did not require any variances to the existing zoning. A delegation of residents expressed concerns to the City Planning Committee about the effects of student housing on their neighbourhood. Subsequently city council passed an interim control bylaw essentially freezing development in the area. RSJ Holdings moved to quash the interim control bylaw, claiming that the city failed to comply with the requirements of the Municipal Act regarding open meetings, thereby rendering the bylaw illegal.
The Ontario Superior Court, in a decision reported [2005] O.T.C. 64, dismissed the motion. RSJ Holdings appealed.
The Ontario Court of Appeal, in a decision reported 205 O.A.C. 150, allowed the appeal. The city appealed.
The Supreme Court of Canada dismissed the appeal.
Municipal Law – Topic 3401
Bylaws – Enactment – Public hearing – General – Section 239 of the Ontario Municipal Act, 2001, required that all municipal meetings be open to the public, except where the subject matter being considered at the meeting fell within one of seven categories expressly set out in the statute – The Supreme Court of Canada reviewed the state of affairs that existed in regard to open municipal meetings in Ontario prior to the enactment of s. 239 – The court thereafter reviewed the current statutory provision – See paragraphs 17 to 26.
Municipal Law – Topic 3401
Bylaws – Enactment – Public hearing – General – The Supreme Court of Canada, in light of the open meeting requirement in s. 239 of the Ontario Municipal Act, 2001, and the comments on deference by McLachlin, J. (as she then was), in dissent in Shell Canada v. Vancouver (1994), stated that “municipal law was changed to require that municipal governments hold meetings that are open to the public, in order to imbue municipal governments with a robust democratic legitimacy. The democratic legitimacy of municipal decisions does not spring solely from periodic elections, but also from a decision-making process that is transparent, accessible to the public, and mandated by law. When a municipal government improperly acts with secrecy, this undermines the democratic legitimacy of its decision, and such decisions, even when intra vires, are less worthy of deference” – See paragraph 38.
Municipal Law – Topic 3401
Bylaws – Enactment – Public hearing – General – [See
Municipal Law – Topic 3773
].
Municipal Law – Topic 3773
Bylaws – Particular bylaws (incl. scope of) – Interim control bylaw – After conducting closed committee meetings, the London city council passed an interim control bylaw essentially freezing development in a particular area of the city – A property owner moved to quash the bylaw – The application was dismissed at first instance – The property owner appealed – The Ontario Court of Appeal allowed the appeal – The city appealed, arguing that the meetings fell within the exception under s. 239(2)(g) of the Municipal Act, 2001, which allowed for a closed meeting where the subject matter under consideration was a matter in respect of which a committee or council could hold a closed meeting under another Act, in this case the Planning Act – Alternatively, the city argued that the bylaw should not be quashed – The Supreme Court of Canada dismissed the appeal – The court held that the Court of Appeal was correct in concluding that the interim control bylaw provisions contained in the Planning Act in no way obviated the statutory requirement to hold public meetings under s. 239 of the Municipal Act, 2001 – Further, the Court of Appeal properly exercised its discretion in quashing the bylaw – The open meeting requirement reflected a clear legislative choice for increased transparency and accountability in the decision-making process of local governments – The court rejected the contention that the property owner had not suffered prejudice – If anything, the enactment of an interim bylaw, given its powerful nature and potential draconian effect on affected land owners, enhanced the need for transparency and accountability – Further, the city’s disregard of its statutory obligation to hold public meetings in this case was neither inadvertent nor trivial – In the circumstances, quashing the bylaw was an entirely appropriate remedy and the court would not interfere with the Court of Appeal’s exercise of discretion.
Municipal Law – Topic 3843
Bylaws – Quashing bylaws – Grounds for judicial interference – Illegality – After conducting closed committee meetings, the London city council passed an interim control bylaw essentially freezing development in a particular area of the city – A property owner moved to quash the bylaw for illegality under s. 273 of the Municipal Act, 2001 – The application was dismissed at first instance – The property owner appealed – The Ontario Court of Appeal allowed the appeal – The city appealed, arguing that the overarching principle which should govern the court on a s. 273 review of a municipal bylaw was one of deference – The Supreme Court of Canada stated that the city’s argument was misguided – The court stated that on the question of “illegality” which was central to a s. 273 review, municipalities did not possess any greater institutional expertise than the courts – The test on jurisdiction and questions of law was correctness – See paragraphs 34 to 37.
Municipal Law – Topic 3843
Bylaws – Quashing bylaws – Grounds for judicial interference – Illegality – Section 273(1) of the Ontario Municipal Act, 2001, gave the court the power to quash a bylaw for illegality – The Supreme Court of Canada stated “of course, in exercising its discretion, the court cannot act in an arbitrary manner. The discretion must be exercised judicially and in accordance with established principles of law. Hence, when there is a total absence of jurisdiction, a court acting judicially will quash the bylaw. In other cases, a number of factors may inform the court’s exercise of discretion including, the nature of the bylaw in question, the seriousness of the illegality committed, its consequences, delay, and mootness …” – See paragraph 39 – The court commented further, that “… illegality under s. 273 is not strictly confined to matters of jurisdiction. The failure to comply with statutory procedural requirements that do not go to jurisdiction may nonetheless provide sufficient grounds for quashing” – See paragraph 40.
Municipal Law – Topic 3843
Bylaws – Quashing bylaws – Grounds for judicial interference – Illegality – [See
Municipal Law – Topic 3773
].
Cases Noticed:
Country Pork Ltd. v. Ashfield (Township) et al. (2002), 162 O.A.C. 223; 60 O.R.(3d) 529 (C.A.), refd to. [para. 36].
Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; 163 N.R. 81; 41 B.C.A.C. 81; 66 W.A.C. 81, refd to. [para. 37].
Nanaimo (City) v. Rascal Trucking Ltd. et al., [2000] 1 S.C.R. 342; 251 N.R. 42; 132 B.C.A.C. 298; 215 W.A.C. 298; 2000 SCC 13, refd to. [para. 37].
Immeubles Port Louis ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; 121 N.R. 323; 38 Q.A.C. 253, refd to. [para. 39].
Statutes Noticed:
Emergency Management and Civil Protection Act, R.S.O. 1990, c. E-9, sect. 2.1(7) [para. 32].
Municipal Act, S.O. 2001, c. 25, sect. 239(1), sect. 239(2) [para. 21]; sect. 239(2)(g) [para. 26]; sect. 239(4)(a), sect. 239(4)(b) [para. 24]; sect. 239(5), sect. 239(6) [para. 25]; sect. 273(1), sect. 273(2), sect. 273(4), sect. 273(5) [para. 34].
Planning Act, R.S.O. 1990, c. P-13, sect. 34(12), sect. 34(13) [para. 30]; sect. 38 [para. 28].
Authors and Works Noticed:
Doumani, Robert G., and Foran, Patricia A., Ontario Planning Act and Commentary (2004), p. 46 [para. 27].
Hansard (Ont.) – see Ontario, Hansard, Legislative Assembly, Official Report of Debates.
O’Connor, M. Rick, Open Local Government 2: How crucial legislative changes impact the way municipalities do business in Canada (2004), p. 25 [para. 18].
Ontario, Hansard, Legislative Assembly, Official Report of Debates, No. 162, 3rd Sess., 35th Parliament (November 28, 1994), p. 7978 [para. 19].
Ontario, Ministry of Municipal Affairs, Open Local Government (1992), pp. 2, 3, 31 [para. 19].
Ontario, Report of the Commission on Freedom of Information and Individual Privacy, Public Government for Private People (Williams Commission Report) (1980), generally [para. 18].
Ontario, Report of the Provincial/Municipal Working Committee on Open Meetings and Access to Information (1984), p. 2 [para. 18].
Williams Commission Report – see Ontario, Report of the Commission on Freedom of Information and Individual Privacy, Public Government for Private People (Williams Commission Report).
Counsel:
George H. Rust-D’Eye, Barnet H. Kussner and Kim Mullin, for the appellant;
Alan R. Patton and Analee J.M. Fernandez, for the respondent.
Solicitors of Record:
WeirFoulds, Toronto, Ontario, for the appellant;
Patton Cormier & Associates, London, Ontario, for the respondent.
This appeal was heard on November 15, 2006, before Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. Charron, J., delivered the following judgment in both official languages for the court on June 21, 2007.
