Wingham (Town) v. Huron (County)

Wingham (Town) v. Huron (County) Collection Decisions of the Court of Appeal Date 2001-02-15 Docket numbers C34469, C34470, C34471 Judges Abella, Rosalie Silberman; Borins, Stephen; Sharpe, Robert J. Subject Civil Decision Content DATE: 20010215 DOCKET: C34469, C34470, C34471 COURT OF APPEAL FOR ONTARIO ABELLA, BORINS, SHARPE JJ.A. BETWEEN: ) ) THE CORPORATION OF THE TOWN OF WINGHAM Applicant (Appellant) - and - ) ) ) ) ) ) John Skinner Q.C., for The Town of Wingham (Appellant) ) THE CORPORATION OF THE COUNTY OF HURON, THE CORPORATION OF THE TOWNSHIP OF GODERICH, THE CORPORATION OF THE TOWNSHIP OF HOWICK, THE CORPORATION OF THE TOWNSHIP OF ASHFIELD, THE CORPORATION OF THE TOWNSHIP OF COLBORNE, THE CORPORATION OF THE TOWNSHIP OF GODERICH, THE CORPORATION OF THE TOWNSHIP OF GREY, THE CORPORATION OF THE TOWNSHIP OF HAY, THE CORPORATION OF THE TOWNSHIP OF HULLETT, THE CORPORATION OF THE TOWNSHIP OF McKILLOP, THE CORPORATION OF THE TOWNSHIP OF MORRIS, THE CORPORATION OF THE TOWNSHIP OF STANLEY, THE CORPORATION OF THE TOWNSHIP OF STEPHEN, THE CORPORATION OF THE TOWNSHIP OF TUCKERSMITH, THE CORPORATION OF THE TOWNSHIP OF TURNBERRY, THE CORPORATIONOF THE TOWNSHIP OF USBORNE, THE CORPORATION OF THE TOWNSHIP OF EAST WAWANOSH, THE CORPORATION OF THE TOWNSHIP OF WEST WAWANOSH, THE CORPORATION OF THE TOWN OF CLINTON, THE CORPORATION OF THE TOWN EXETER, THE CORPORATION OF THE TOWN SEAFORTH, THE CORPORATION OF THE VILLAGE BAYFIELD, THE CORPORATION OF THE VILLAGE OF BLYTH, THE CORPORATION OF THE VILLAGE OF BRUSSELS, THE CORPORATION OF THE VILLAGE OF HENSALL and THE CORPORATION OF THE VILLAGE OF ZURICH Respondents (Respondents in Appeal) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Ben A. Jetten and Allison A. Thornton, for Town of Goderich (Appellant) Thomas W. Teahen, for Howick, Bayfield, Bluewater, Ashfield, Colbourne, Wawanash (Respondents) George H. Rust-D’Eye, for the County of Huron (Respondent) ) B E T W E E N ) ) THE CORPORATION OF THE TOWN OF GODERICH Applicant (Appellant) ) ) ) ) ) - and - ) ) THE CORPORATION OF THE COUNTY OF HURON, THE CORPORATION OF THE TOWNSHIP OF WINGHAM, THE CORPORATION OF THE TOWNSHIP OF HOWICK, THE CORPORATION OF THE TOWNSHIP OF ASHFIELD, THE CORPORATION OF THE TOWNSHIP OF COLBORNE, THE CORPORATION OF THE TOWNSHIP OF GODERICH, THE CORPORATION OF THE TOWNSHIP OF GREY, THE CORPORATION OF THE TOWNSHIP OF HAY, THE CORPORATION OF THE TOWNSHIP OF HULLETT, THE CORPORATION OF THE TOWNSHIP OF McKILLOP, THE CORPORATION OF THE TOWNSHIP OF MORRIS, THE CORPORATION OF THE TOWNSHIP OF STANLEY, THE CORPORATION OF THE TOWNSHIP OF STEPHEN, THE CORPORATION OF THE TOWNSHIP OF TUCKERSMITH, THE CORPORATION OF THE TOWNSHIP OF TURNBERRY, THE CORPORATION OF THE TOWNSHIP OF USBORNE, THE CORPORATION OF THE TOWNSHIP OF EAST WAWANOSH, THE CORPORATION OF THE TOWNSHIP OF WEST WAWANOSH, THE CORPORATION OF THE TOWN OF CLINTON, THE CORPORATION OF THE TOWN EXETER, THE CORPORATION OF THE TOWN SEAFORTH, THE CORPORATION OF THE VILLAGE BAYFIELD, THE CORPORATION OF THE VILLAGE OF BLYTH, THE CORPORATION OF THE VILLAGE OF BRUSSELS, THE CORPORATION OF THE VILLAGE OF HENSALL and THE CORPORATION OF THE VILLAGE OF ZURICH ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Respondents (Respondents in Appeal) ) ) ) ) RELEASED ORALLY: February 8, 2001 ) Heard: February 8, 2001 On appeal from the judgment of Mr. Justice J. Desotti dated May 19, 2000. SHARPE J.A.: [1] Huron County Council passed Bylaw 9 of 1999 purporting to assume, as an upper-tier municipality, the power to provide police services to all of its local municipalities. The issues on this appeal are whether Bylaw 9 is valid and whether the requisite steps were taken to bring it into force. [2] The purpose of Bylaw 9 is set out in s. 1: THAT the County hereby assumes all of the rights, powers, duties, and responsibilities under the [Municipal] Act and under any other applicable legislation including, without limitation, the Police Services Act, R.S.O. 1990, c. P. 15 (the “PSA”), to provide police services and policing facilities in, for, and on behalf of all of the local municipalities in the County. [3] Bylaw 9 was enacted pursuant to s. 209.2 of the Municipal Act, R.S.O. 1990, c. M. 45 as amended, which provides for the “uploading” of the power to provide certain municipal services from local municipalities to an upper-tier municipality: 209.2 (1) An upper-tier municipality may pass a by-law, (a) despite any Act, to assume a local power to provide a prescribed service or facility for all of its local municipalities; and (b) to provide for transitional matters to facilitate the assumption of the local power. (2) A by-law under subsection (1) shall not come into force unless, (a) a majority of all votes on the council of the upper-tier municipality are cast in its favour; (b) a majority of the councils of all the local municipalities forming part of the upper-tier municipality for municipal purposes have passed resolutions giving their consent to the by-law; and (c) the total number of electors in the local municipalities which have passed resolutions under clause (b) form a majority of all the electors in the upper-tier municipality. (3) A provision of a by-law of an upper-tier municipality to assume a local power passed under clause (1)(a) shall not be repealed in whole or in part after it comes into force. (4) Despite subsection (3), a by-law of an upper-tier municipality passed under subsection (1) shall be deemed to be repealed to the extent it conflicts with a subsequent by-law of a local municipality under section 209.4. [4] Huron County Council repealed Bylaw 9, but as can be seen from s. 209.2(3), it is beyond the power of a municipality to repeal an “uploading” bylaw after it has come into force. Two municipalities, the Town of Goderich and the Town of Wingham, the appellants before this court, brought applications for declaratory and other relief. They assert that Bylaw 9 is valid and that it did come into force. [5] The applications judge held that Bylaw 9 was defective as it failed to provide certain essential details of the uploading scheme. He found that Bylaw 9 was of no force or effect and that it should be quashed. [6] The threshold issue on this appeal is whether a majority of the councils of the local municipalities can be said to have consented to Bylaw 9 within the meaning of s. 209.2(2)(b). [7] Section 209.2(2) provides that an “uploading” bylaw does not come into force unless there is a “triple majority approval” consisting of (a) a majority of all votes on the council of the upper-tier municipality, (b) a majority of the councils of all the local municipalities forming part of the upper-tier municipality, and (c) that the total number of electors in the local municipalities that have passed resolutions to consent to the bylaw form a majority of all the electors in the upper-tier municipality. [8] Seventeen local municipalities, a clear majority of the local municipalities in Huron County, passed resolutions consenting to Bylaw 9. However, of the 17 municipalities that purported to consent to the bylaw, 11 expressly stated that consent was “predicated on the cost allocation being based on workload levels of service”. The remaining six municipalities passed resolutions consenting to the bylaw without reservation, but subsequently passed resolutions indicating that their consent as well had been “predicated on the cost allocation being based on workload levels of service”. [9] The issue is whether consents in these terms were sufficient to bring Bylaw 9 into force pursuant to s. 209.2(2). The appellants submit that the word “predicated” is not the equivalent of “conditional”. They say that the local municipalities had a choice either to consent to the Bylaw or not. They chose to consent to it. The “predicated” clause merely expressed a reason for the consent or perhaps a hope as to the allocation of the cost of the up-loaded police services. However, the appellants say that once the triple majority was satisfied, Bylaw 9 came into force by operation of law, with all that entails. In particular, the appellants say that the statutory scheme confers responsibility for payment for police services upon the County of Huron. Once Bylaw 9 came into force, the county and the local municipalities that consented to it must live with the consequences, whatever those consequences may be. [10] In my view, the appellants’ argument ignores the relevant history of Bylaw 9. It is clear from the record that the method of costing the uploading of police services to the County was a matter of detailed consideration before the Bylaw was passed. We were referred to reports of the Huron County Administration, Finance and Personnel Committee that considered the uploading proposal. The minutes of that committee, the reports of which were sent to the local municipalities prior to their consent to the Bylaw, clearly propose cost allocation being based on workload/levels of service. That proposed method of costing police services would favour the smaller municipalities that voted to consent to Bylaw 9. The alternative method of allocating costs on an assessment basis would favour larger municipalities such as the appellants. [11] Bylaw 9 contains no reference to the costing method to be adopted. After it was passed, but before it had been declared in force as having been consented to by the required number of municipalities, concern was expressed as to whether it was legally possible for the county to adopt cost-allocation based on workload/levels of service. The Town of Goderich, which had not consented to Bylaw 9, asked that the cost be allocated on the basis of assessment, a method that would favour it and disfavour the municipalities that had already consented to it. [12] The minutes of a meeting of the Administration, Finance and Personnel Committee, held after the bylaw was passed but before all the local municipalities had dealt with the issue of consent, indicate the following: County Council has consistently directed that policing costs be cost allocated on the basis of workload/levels of service provided. All reports, actions and by-laws approved by County Council to date have been predicated on policing costs being allocated on the basis of workload/levels of service provided. (emphasis added). The minutes of the committee goes on to indicate: It is clear that the question put to municipalities, and their subsequent answers, were predicated on the cost allocation for the OPP County-wide Contract being by workload/levels of service provided. (emphasis added). The minutes then state: As there continues to be differing opinions on the cost allocation by workload/levels of service provided which has been chosen by County Council and the majority of the local councils as evidenced by their responses to the November 26, 1998 question, a legal review of the questions has been sought. In order to clarify to both the Town of Goderich and the Township of Howick that all reports, actions and by-laws approved, and to be approved, are predicated on policing costs being cost allocated on the basis of workload/levels of service provided; it is recommended that all municipalities consenting to County of Huron Bylaw No. 9, 1999, do so on the basis of their consent being predicated on the cost allocation being based on workload/levels of service provided. Such an indication by each local municipality would clarify the scope and basis for each local municipality’s consent to the County’s By-law. (emphasis added). [13] It is clear beyond any doubt that by couching their consent in terms “predicated on the cost allocation being based on workload/levels of service”, the local municipalities were following the committee’s direction so as to “clarify the scope and basis” for their consent. [14] The consents pursuant to s. 209.2(2)(b) necessary to trigger the triple majority must be interpreted in light of this factual background. That background leads to the conclusion that there has not been sufficient consent of Bylaw 9 pursuant to s. 209.2(2) to bring it into force. In some contexts, consent “predicated” upon certain factual contingencies might not indicate conditional consent. However, in this factual context, taken as a whole, the language used by the seventeen municipalities that consented to Bylaw 9 did amount to a consent that was conditional upon a cost allocation based on workload/levels of service. A conditional consent, especially where conditioned upon a contingency that never materialized, does not amount to a consent within the meaning of s. 209.2(2)(b) of the Municipal Act. On the record before us, it is clear that the costing method was a crucial element of the uploading scheme. I cannot accept the proposition that despite having qualified their consent, the local municipalities should nonetheless be bound by what would almost certainly be a very different scheme. [15] In view of this conclusion on the threshold issue of consent, it is unnecessary to consider the points upon which the applications court judge based his decision. [16] The circumstances do not call for a quashing of the Bylaw. Although Bylaw 9 was passed, it never came into force. Accordingly, section 209.2(3) did not prevent the County from repealing it. As it has been repealed, it is not operative. I would accordingly dismiss the appeal, but set aside the order of the applications court judge and in its place, order that the application be dismissed. The application’s court judge made no order as to costs. The same order should be made here. “Robert J. Sharpe J.A.” “R.S. Abella J.A. I agree” “S. Borins J.A. I agree” RELEASED: February 15, 2001