Bruce (Township) v. Minister of Municipal Affairs and Housing for Ontario

Bruce (Township) v. Minister of Municipal Affairs and Housing for Ontario Collection Decisions of the Court of Appeal Date 1998-09-04 Docket numbers C29880 Judges Finlayson, George Duncan; Osborne, Coulter Arthur Anthony; Weiler, Karen Merle Magnuson Subject Civil Decision Content DATE: 19980904 DOCKET: C29880 COURT OF APPEAL FOR ONTARIO FINLAYSON, OSBORNE and WEILER JJ.A. BETWEEN: ) ) THE CORPORATION OF THE TOWNSHIP ) OF BRUCE and THE CORPORATION OF ) THE VILLAGE OF TIVERTON ) ) Burton H. Kellock, Q.C. Applicants ) and Robert Maisey (Appellants) ) for the appellants ) - and - ) ) MINISTER OF MUNICIPAL AFFAIRS AND ) Andrew J. Roman HOUSING FOR ONTARIO, THE ) for the respondent, Minister CORPORATION OF THE COUNTY OF ) of Municipal Affairs BRUCE, THE CORPORATION OF THE ) TOWN OF KINCARDINE, THE ) CORPORATION OF THE TOWNSHIP ) OF KINCARDINE, THE ) CORPORATION OF THE TOWNSHIP OF ) ST. EDMUNDS, THE CORPORATION OF ) Robert G. Doumani THE TOWNSHIP OF LINDSAY, THE ) and William A. Chalmers CORPORATION OF THE TOWNSHIP OF ) for the respondent, Corp. of EASTNOR, THE CORPORATION OF THE ) the County of Bruce VILLAGE OF LIONS' HEAD, THE ) CORPORATION OF THE TOWNSHIP OF ) ALBEMARLE, THE CORPORATION OF ) TOWNSHIP OF AMEBEL, THE ) Darrell N. Hawreliak CORPORATION OF THE TOWN OF ) for the Town of Kincardine WIARTON, THE CORPORATION OF THE ) VILLAGE OF HEPWORTH, THE ) CORPORATION OF THE TOWNSHIP OF ) ARRAN, THE CORPORATION OF THE ) James A. Smith TOWNSHIP OF ELDERSLIE, THE ) for the Twp. of Kincardine CORPORATION OF THE TOWN OF ) CHESLEY, THE CORPORATION OF THE ) VILLAGE OF TARA, THE CORPORATION ) Heard: August 5, 1998 OF THE VILLAGE OF PAISLEY, THE ) CORPORATION OF THE TOWNSHIP OF ) GREENOCK, THE CORPORATION OF THE ) TOWNSHIP OF BRANT, THE ) CORPORATION OF THE TOWN OF ) WALKERTON, THE CORPORATION OF ) THE TOWNSHIP OF CARRICK, THE ) CORPORATION OF THE TOWNSHIP OF ) CULROSS, THE CORPORATION OF ) THE VILLAGE OF MILDMAY, THE ) CORPORATION OF THE VILLAGE OF ) TEESWATER, THE CORPORATION OF ) THE TOWNSHIP OF SAUGEEN, THE ) CORPORATION OF THE TOWN OF ) SOUTHAMPTON, THE CORPORATION OF ) THE TOWN OF PORT ELGIN, THE ) CORPORATION OF THE TOWNSHIP OF ) HURON, THE CORPORATION OF THE ) TOWNSHIP OF KINLOSS, THE ) CORPORATION OF THE VILLAGE OF ) LUCKNOW ) ) Respondents ) (Respondents) ) ) ) OSBORNE J.A.: This is an appeal, with leave, from the January 30, 1998 judgment of Dambrot J. dismissing the appellants' application for judicial review of the decision of the Bruce County Council to adopt a county-wide municipal restructuring plan. Under the proposed restructuring, 30 existing municipal corporations in the County of Bruce (the "County") would be reduced to eight. [1] The appellants are two small local municipalities, (amalgamated into one municipality as of January 1, 1998), in Bruce County. They have about 3.6 per cent of the County population and 3.4 per cent of the total electors in the County. They opposed the restructuring option adopted by County Council on October 21, 1997, because their representation in the restructured Bruce County would be reduced. [2] On their application for judicial review, the appellants contend that before approving the restructuring proposal in issue on this appeal, County Council failed to comply with statutorily required pre-conditions to the exercise of its jurisdiction to make a restructuring proposal to the Minister. In particular, Bruce Township and Tiverton submit that County Council failed to consider "principles" it was obligated to consider by s. 25.4 of the Municipal Act, R.S.O. 1990, c. M.45, as amended, with the result that its decision to adopt the restructuring proposal is void in law. [3] The motions judge dismissed the appellants' application for judicial review of County Council's decision to make the restructuring proposal it did. In his analysis, he assumed that the "principles" contained in a Guide circulated by the Minister had to be considered by County Council in developing its restructuring proposal. He found that there was nothing in the record from which he could conclude that members of County Council failed in their assumed duty to consider the principles. [4] The appellants contend that the motions judge misapprehended the evidence and that he failed to consider relevant evidence and the absence of conflicting evidence in reaching that conclusion. [5] Although there is a significant factual element to this appeal in respect of what the County Council, and its Restructuring Committee, did in developing the restructuring proposal that County Council submitted to the Minister of Municipal Affairs and Housing (the "Minister") for approval, there is a major underlying issue in this case. This issue is the role of the courts in reviewing decisions of a validly constituted elected body, not on the basis of what the elected body did, but rather on the basis of an assessment of what the elected body considered in developing that proposal. MUNICIPAL RESTRUCTURING [6] On January 30, 1996, by a statute entitled the Savings and Restructuring Act, S.O. 1996, c. 1, the Municipal Act was amended to streamline the process for municipal restructuring. [7] Before 1996, municipal restructuring took place by application to the Ontario Municipal Board under the Municipal Act, through the process established by the Municipal Boundary Negotiations Act, 1981, or by special Act of the Legislature. The 1996 Municipal Act amendments substantially changed the process for municipal restructuring. [8] Section 25.4 of the Municipal Act (as amended by the Savings and Restructuring Act) provides: 25.4 The Minister may establish restructuring principles that shall be considered, (a) by municipalities and local bodies when developing a restructuring proposal to be submitted to the Minister under subsection 25.2(2); and (b) by a commission when developing restructuring proposals under section 25.3(1). [9] As can be seen, s. 25.4 does not require the Minister to establish restructuring "principles." However, if the Minister does establish such principles, s. 25.4 requires a municipal corporation to consider them in developing a restructuring proposal to be submitted to the Minister under s. 25.2(2). [10] Under the scheme established by the Municipal Act amendments, a municipal corporation's restructuring proposal is made to the Minister in the form of a "restructuring report." If the restructuring report contains the necessary information the Minister shall, by order, implement the restructuring proposal. The Minister does not pass judgment on the substantive merits of the restructuring proposal or apply the "principles" referred to in s. 25.4. The "principles" are to be considered by the municipality, if the restructuring is by a municipality under s. 25.4(a). The degree of political support required for restructuring is set out in the regulations passed under the Act. Manifestly, the legislative intent is that municipalities develop "made in the municipality" restructuring proposals. [11] Neither the Act nor the regulations impose any particular process for the development of a restructuring proposal by a municipality such as Bruce County. Nor do the Act or the regulations prescribe when in the restructuring process the Minister's "principles" are to be considered. The process leading to a restructuring report, for the most part, has been left to the discretion of local politicians. [12] In August 1996, the Minister established the restructuring principles contemplated by s. 25.4 of the Municipal Act. These principles were contained in a published document entitled, "A Guide to Municipal Restructuring" (the "Guide"). The Guide also contained suggestions about whether and how municipal restructurings might be considered and undertaken. [13] The principles published in the Guide are as follows: The following are the principles issued by the minister under section 25.4 of the Municipal Act that shall be considered by municipalities when developing restructuring proposals: Less government - fewer municipalities - reduced municipal spending - fewer elected representatives Effective Representation System - accessible - accountable - representative of population served - size that permits efficient priority-setting Best Value for Taxpayer's Dollar - efficient service delivery - reduced duplication and overlap - ability to capture the costs and benefits of municipal services with the same jurisdiction - clear delineation of responsibilities between local government bodies Ability to Provide Municipal Services from Municipal Resources - local self reliance to finance municipal services - ability to retain and attract highly qualified staff Supportive Environment for Job Creation, Investment and Economic Growth - streamlined, simplified government - high quality services at the lowest possible cost BRUCE COUNTY RESTRUCTURING [14] County Council established a Restructuring Committee (the "Committee") in September 1996. According to Stuart Reavie, the Chair of the Restructuring Committee, the composition of the Committee took into account the need to reflect "... the rural/urban, north/south and large/small characteristics of the local municipalities within the County." Apparently no councillors from Bruce Township or Tiverton volunteered to sit on the Committee. [15] At that time, there were 30 local municipalities (towns, villages and townships) in Bruce County, including the two appellants. As well, restructuring was not new to Bruce County. Indeed, the County restructuring process had been ongoing, at least on an intermittent basis, since 1974. [16] Comprehensive studies concerning the impact of county-wide municipal restructuring had been published in November 1975 and March 1991. These studies were made available to members of Bruce County Council and to the Committee. The 1975 report is not in evidence, however, the 1991 report is in evidence. I will refer to it in more detail shortly. [17] From December 1996 to April 1997, the Committee reviewed previous restructuring studies and conducted a survey of local municipal councils to determine their views on restructuring. The Committee was of the view that, in light of the uncertainty associated with provincial downloading of services to municipalities, it was sensible to resort to the 1991 data as those data were as accurate as anything that could be produced currently in respect of the impact of restructuring on municipal spending. Thus, the Committee did not commission a similar study. [18] In May 1997 the Committee decided to recommend to Council a county-wide restructuring proposal consisting of a two tiered, 8 municipal unit system (the "May proposal"). [19] On May 20, 1997, County Council approved the May proposal. When the May proposal was approved by County Council neither of the appellants raised any concerns about its contents, or about the failure of the Committee, or Council, to consider the principles set out in the Guide in developing the proposal. [20] The Minister refused to approve the May proposal because of lack of detail. Thus, the Committee had to continue its work. It decided to consider other restructuring options for presentation at its July 17, 1997 meeting. [21] At the July 17, 1997 meeting, the Committee decided to present two restructuring options to Council. The first option contained the same municipal alignment as set out in the May proposal, however, it changed the representation provision to one vote on the County Council for each 3,500 electors instead of one vote for each 5,000 electors. The second restructuring proposal, option 2, contained the same municipal alignment as set out in option 1, except for the grouping of Bruce Township and the Village of Tiverton with the Township of Kincardine and the Town of Kincardine, and the grouping of the Townships of Huron and Kinloss1 as one municipal unit. This proposal also sought to amend the voting distribution to one vote on Council for each 3,500 electors. The minutes of the July 17th meeting refer to the fact that the Committee examined "statistics" refereable to options 1 and 2. The Committee recommended that the Warden call a special meeting of County Council on August 12, 1997 to discuss the restructuring issue. [22] On July 24, 1997, a memorandum to all County Council members set out restructuring options 1 and 2, both of which were to be presented to County Council, sitting in public in Committee of the Whole on August 12, 1997. [23] At the August 12, 1997 meeting, Council adopted option 2 as the intended framework for the restructuring proposal. It also adopted a work plan for the consideration and implementation of that framework. [24] Stuart Reavie, the Chair of the Committee, stated in his affidavit that the Committee felt that the best way to communicate with local municipalities and ratepayers about the restructuring was to leave consideration of the restructuring framework to local municipalities. Throughout August and September 1997 members of the Committee met with representatives of local municipalities to answer questions with respect to restructuring issues. These meetings included a meeting with representatives of the appellants on September 24, 1997. All of these meetings were open to the public. [25] In accordance with the work plan adopted on August 12, 1997, the Committee met on October 16, 1997 to consider all submissions received from local municipalities and to prepare a report to County Council for its October 21, 1997 meeting. The October 16, 1997 meeting was open to the public. It was open to local groups and municipalities to attend and make submissions. The Committee considered submissions made at that time and the report commissioned by the appellants. The Committee rejected the electoral representation scheme favoured by the appellants because, in the Committee's view, it would have given them over one-third of the seats on the Bruce/Tiverton/Kincardine (Town and Township) Council, with one-quarter of the electors. The Committee concluded that this imbalance would have been achieved at the expense of electors in the Town and Township of Kincardine which in the restructuring proposed by the appellants would have about three-quarters of the electors and two-thirds of the seats. [26] At its October 16, 1997 meeting the Committee finalized its draft proposal and report. This is the report that was considered by County Council on October 21, 1997. No representative of either of the appellants attended the October 16, 1997 meeting. [27] The Committee considered population trends and municipal assessment in respect of both option 1 and option 2. Similar discussions occurred at the township and county council levels. [28] The final report of the Committee reflected a consideration of service efficiency issues, assessed from a taxpayer's standpoint, political units that would be accountable and the existence of local communities of interest. [29] Option 2 was formally adopted by Bruce County Council by resolution on October 21, 1997. The vote was 51 in favour and 23 against. The political support for the restructuring proposal required a triple majority -- a majority vote in County Council, the support of a majority of the affected local municipalities, and a majority of electors on a county-wide basis. The appellant, Bruce Township, was among the 23 that voted "no" to option 2. It asked that the following be recorded in the minutes: Reeve Ribey requested that the following comments be recorded in the minutes: "due to the shortness of notice which could prejudice Bruce Township's position we are forced to vote NO to option #2. If option #2 is approved our lawyer has indicated that we could have grounds for a legal challenge against the county based on natural justice." [30] At the October 21st meeting, the appellants did not raise the issue of the failure of County Council (or the Committee) to consider the Minister's "principles." Indeed, the first complaint about County Council's failure to consider the principles came to light in an affidavit of David Thompson sworn December 23, 1997. [31] Bruce County's 1991 study was extensive and was available to, and considered by, the Committee. The report of the 1991 Study Committee set out its terms of reference: To carry out a joint review of the issues of municipal structure, representation., and functions of all municipalities in Bruce County.... To define the most appropriate form of local government in Bruce County in terms of municipal structure, boundaries, organization, administration and responsibilities of the County and local municipalities. Recommendations will be made with an aim to ensure the needs of the community are met efficiently, effectively and with sufficient access and accountability. [32] The 1991 study addressed services, financial matters, demographics, inter-municipal agreements and tax impacts in the context of the restructuring. This report was considered by the Committee and the County Council. The 1991 study examined "services" and a variety of areas: * planning; roads; waste management; economic development; sewer and water; fire and police; building and plumbing inspection; recreation, library services; social services, including the elderly and child care; municipal administrative responsibilities. [33] In addition to having access to the 1975 and 1991 restructuring reports, the Reeve of Bruce Township forwarded a copy of a report of McNaughton Hermsen Britton Clarkson Planning Limited dated October 1, 1997 (the "MHBC Report") to all members of Bruce County Council by way of letter dated October 6, 1997. This report was prepared for the appellants at their request. A copy of this report was also given to the Committee. [34] The MHBC Report considered many of the principles referred to in the Guide except for consultation, communication and financial matters. When it compared option 1 (the revised May proposal) and option 2 (the restructuring proposal adopted by County Council in October 1997) on the basis of some of the principles contained in the Guide (less government, effective representation, communities of interest and geographic/planning considerations) the MHBC Report concluded that option 2 was equal to or superior to option 1. The MHBC Report was considered by the Committee but no specific discussion of its contents apparently took place. [35] As I have noted, the MHBC Report addressed four options, including the two options that the Committee placed before County Council for consideration at Council's October 21, 1997 meeting. [36] The MHBC Report specifically referred to the Minister's principles: In August of 1996, the Province published "A Guide to Municipal Restructuring" to assist municipalities in restructuring efforts. The Guide set out a number of matters to take into consideration for restructuring proposals such as less government, effective representation, increased value for taxpayer dollars, local self-reliance to finance necessary services and streamlining government. [Emphasis added.] [37] The reference in the MHBC Report that I have set out above is a reference to the principles that the appellants allege were not considered. [38] In the main body of the MHBC Report, the authors assessed the Minister's principles by analyzing the four restructuring options that it considered under the criteria of "create less government", "effective representation", "communities of interest", and "geography/planning considerations." The MHBC Report acknowledged the importance of financial restructuring issues, however, it explicitly stated that such matters were beyond the scope of the Report. [39] The MHBC Report concluded: (a) With respect to the objective of less government, Options 1 and 2 and Alternative A are preferable over Alternative B. This assumes that, under any option, no new huge local Council is created. (b) With respect to the number of electors per vote ... the most equitable scenario is Option 2 (August 1997) or Alternative A (Bruce-Tiv.-N.K. Twp.). Option 1 (May 1997) and Alternative B (3 S.W. County units) introduce more variation in the number of electors per vote at the County level. (c) In summary, based on a review of delivery of services and the existing relationships between various municipalities, it is concluded that Alternative A (Bruce-Tiverton-North Kincardine Township) best defines the commonality of interest. While Option 2 (August 1997) recognizes the links between Bruce Township, Tiverton, Kincardine Township and the Town of Kincardine, it ignores the relationships between Huron Township, Town of Kincardine and the south part of the Township of Kincardine. (d) In summary, a review of planning considerations reveals that the preferred option is Alternative A (Bruce- Tiverton-North Kincardine Township). [40] The MHBC Report took no issue with the Committee in relation to its failure to consider the Minister's "principles" in the development of what was referred to in the Report as Option 2. [41] All meetings of County Council that dealt with restructuring, of the Restructuring Committee and of the Joint Restructuring Subcommittee were open to the public and members of the public and the media attended some of these meetings. In addition, members of the public made submissions on restructuring. [42] When the appellants sought judicial review of Bruce County Council's restructuring decision, they contended that before voting on the proposal for county-wide restructuring the County Council gave no, or at least inadequate, consideration to the general principles that the Minister had set out in the Guide. I have referred to those principles earlier and will return to them shortly. [43] The appellants' preferred approach to restructuring (an option set out in the MHBC Report) was to amalgamate the Township of Bruce, the Village of Tiverton and the north part of the Township of Kincardine as one municipal unit. This would leave the Town of Kincardine, which is in the south half of the Township of Kincardine, out of the amalgamated unit of which the appellants sought to be part. The Corporation of the Township of Bruce specifically made that proposal to members of County Council dated October 6, 1997. In that letter, the Reeve of the Township of Bruce enclosed copies of the MHBC Report for circulation among members of County Council. The MHBC report recommended the option (Alternative A) that the appellants preferred. [44] In its report to County Council, the Committee commented on its May proposal in the context of the need to develop a "made-in- Bruce-County" solution to restructuring. The Report put it in this way: Following the provincial decision to deny our request to proceed with the May proposal, Council once again confirmed the need to develop a made in Bruce County solution to the restructuring issue and directed this committee to develop, with local input, this final draft proposal. We recognize that because this proposal contains more detail than the May proposal, it may provide more opportunity to find a reason for not supporting it. We understand that there are a number of municipalities that do not agree with one or two aspects of the proposal. We ask that you consider the previous support shown this year to proceed with restructuring. This proposal, with one boundary adjustment, is basically the same proposal that received majority support in May. It will create a stronger system of local government based on eight local municipalities large enough to provide efficient services to the taxpayer yet small enough to ensure accessibility and reflect local communities of interest. Over the past year this committee has repeatedly challenged this Council to grasp the opportunity to create a made in Bruce local government structure that will position us to provide the required services to residents in a cost effective and responsive manner. We are confident that you will once again meet that challenge by approving the attached Bruce County Restructuring Proposal. [Emphasis added.] ANALYSIS [45] The principles which the appellants contend that the County Council did not consider are, to say the least, general and it seems to me that it would be difficult for anyone, who gave the matter any consideration at all, not to take these principles into account when considering the structural reorganization of a county, as happened here. In summary form they require consideration of: * the cost efficiencies to be generated by "less government" and in the provision of municipal services; * an efficient, fair, accessible and accountable system of political representation at the local and county level; * the financial capacity to provide municipal services from municipal resources; * a municipal governmental structure that would foster job creation, investment and economic growth. [46] The appellants, in their submissions, emphasize that the criteria used to assess the merits, or otherwise, of the two options placed before County Council in October 1997, including the expected impact of each proposal, do not appear in the proposals and were not set out in writing in any document prepared by or on behalf of the Committee or County Council. The appellants submit that the absence of any paper trail in Committee and Council minutes must lead to the conclusion that County Council did not "consider" the Minister's principles as set out in the Guide. [47] County Council was required by s. 25.4 of the Municipal Act to do no more than "consider" the Minister's principles. In my opinion, that imposes no greater requirement on County Council than to take the principles into account when developing a restructuring proposal to be submitted to the Minister. Section 25.4 does not state how or when the principles are to be considered. Moreover, to "consider" is a somewhat conditional requirement in the sense that it does not imply that the principles must be followed in the development of a restructuring proposal. [48] Although consideration of the very broad principles to which I have referred is required, there is no requirement that there be specific evidence that each principle was considered each time a particular step was taken in what was an extended restructuring process. [49] Considerable deference must be extended to elected representatives undertaking what is essentially a legislative function. See Newfoundland Telephone Co. v. Newfoundland (1992), 4 Admin. L.R. (2d) 121 (S.C.C.); Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 and Save Richmond Farmland Society v. Richmond (Township), [1990] 3 S.C.R. 1213. In my opinion, courts are not equipped to micro-manage a process such as the restructuring process undertaken in Bruce County. To do so would result in the judicialization of what was intended to be a political process. The courts should only interfere in egregious circumstances where it is manifest that statutorily prescribed pre-conditions have not been met. Here, the appellants have not established that the principles were not considered. [50] In any case, a review of the record supports Dambrot J.'s conclusion that the County Council did consider the relevant principles. There was ample evidence to support his conclusion in that regard and I see no basis upon which to interfere with it. It is not for the courts to second guess the restructuring decision made by County Council. [51] For these reasons, I would dismiss the appeal with costs. Released: September 4, 1998 _______________________________ 1 In option 1, the Town and Township of Kincardine were grouped with Huron and Kinloss Townships. The Village of Lucknow is in Kinloss Township.