MUNICIPAL & PLANNING LAW REPORTS - Thomson ...

MUNICIPAL & PLANNINGLAW

REPORTSFifth Series/Cinquieme serie

Recueil de jurisprudence en droit municipal

VOLUME 44(Cited 44 M.P.L.R. (5th))

EDITOR-IN-CHIEF/REDACTEUR EN CHEFJohn Mascarin, M.A., LL.B.

Aird & Berlis LLPToronto, Ontario

QUEBEC EDITOR/REDACTEUR POUR LE QUEBECAnnie Fortin, B.A., LL.M., ADM.A

Avocate, Ville de Laval - Service des affaires juridiques / Solicitor, City of Laval - Departmentof Legal AffairsLaval, Quebec

EDITORIAL STAFF/REDACTIONCheryl L. McPherson, B.A. (HONS.)

Director, Primary Content Operations

Erin Gwynne, M.SC., J.D.

Acting Product Development Manager

Julia Fischer, B.A. (HONS.), LL.B. Nicole Ross, B.A., LL.B.

Supervisor, Legal Writing Supervisor, Legal Writing

Barbara Roberts, B.A. (HONS.), LL.B. Anne Simpson, B.A., M.L.S., LL.B.

Lead Legal Writer Lead Legal Writer

Martin-Francois Parent, LL.B., LL.M., Jackie BowmanDEA (PARIS II) Senior Content Editor

Bilingual Legal Writer

MUNICIPAL AND PLANNING LAW REPORTS, a national series of topi- Recueil de jurisprudence en droit municipal, une serie nationale de

cal law reports, is published 12 times per year. Subscription rate $507.00 per recueils de jurisprudence specialisee est publie 12 fois par annee.

bound volume including parts. L’abonnement est de 507 $ par volume relie incluant les fascicules.

Editorial Offices are also located at the following address: 430 rue St. Pierre, Le bureau de la redaction est situe a Montreal — 430, rue St. Pierre, Mon-

Montreal, Quebec, H2Y 2M5. treal, Quebec, H2Y 2M5.

________ ________

© 2016 Thomson Reuters Canada Limited © 2016 Thomson Reuters Canada Limitee

NOTICE AND DISCLAIMER: All rights reserved. No part of this publica- MISE EN GARDE ET AVIS D’EXONERATION DE RESPON-

tion may be reproduced, stored in a retrieval system, or transmitted, in any SABILITE : Tous droits reserves. Il est interdit de reproduire, memoriser sur

form or by any means, electronic, mechanical, photocopying, recording or un systeme d’extraction de donnees ou de transmettre, sous quelque forme ou

otherwise, without the prior written consent of the publisher (Thomson par quelque moyen que ce soit, electronique ou mecanique, photocopie, enre-

Reuters). gistrement ou autre, tout ou partie de la presente publication, a moins d’en

avoir prealablement obtenu l’autorisation ecrite de l’editeur, Thomson

Reuters.A licence, however, is hereby given by the publisher:

Cependant, l’editeur concede, par le present document, une licence :

(a) to a lawyer to make a copy of any part of this publication to give to a a) a un avocat, pour reproduire quelque partie de cette publication pour

judge or other presiding officer or to other parties in making legal submis- remettre a un juge ou un autre officier-president ou aux autres parties dans

sions in judicial proceedings; une instance judiciaire;

b) a un juge ou un autre officier-president, pour produire quelque partie de

(b) to a judge or other presiding officer to produce any part of this publication cette publication dans une instance judiciaire; ou

in judicial proceedings; orc) a quiconque, pour reproduire quelque partie de cette publication dans le

cadre de deliberations parlementaires.

(c) to anyone to reproduce any part of this publication for the purposes of« Instance judiciaire » comprend une instance devant une cour, un tribunal ou

parliamentary proceedings.une personne ayant l’autorite de decider sur toute chose affectant les droits ou

les responsabilities d’une personne.

“Judicial proceedings” include proceedings before any court, tribunal or per-Ni Thomson Reuters ni aucune des autres personnes ayant participe a la real-

son having authority to decide any matter affecting a person’s legal rights orisation et a la distribution de la presente publication ne fournissent quelque

liabilities.garantie que ce soit relativement a l’exactitude ou au caractere actuel de

celle-ci. Il est entendu que la presente publication est offerte sous la reserve

Thomson Reuters and all persons involved in the preparation and sale of this expresse que ni Thomson Reuters, ni le ou les auteurs de cette publication, ni

publication disclaim any warranty as to accuracy or currency of the publica- aucune des autres personnes ayant participe a son elaboration n’assument

tion. This publication is provided on the understanding and basis that none of quelque responsabilite que ce soit relativement a l’exactitude ou au caractere

Thomson Reuters, the author/s or other persons involved in the creation of actuel de son contenu ou au resultat de toute action prise sur la foi de

this publication shall be responsible for the accuracy or currency of the con- l’information qu’elle renferme, ou ne peuvent etre tenus responsables de

tents, or for the results of any action taken on the basis of the information toute erreur qui pourrait s’y etre glissee ou de toute omission.

contained in this publication, or for any errors or omissions contained herein.La participation d’une personne a la presente publication ne peut en aucun

cas etre consideree comme constituant la formulation, par celle-ci, d’un avis

No one involved in this publication is attempting herein to render legal, ac- juridique ou comptable ou de tout autre avis professionnel. Si vous avez

counting, or other professional advice. If legal advice or other expert assis- besoin d’un avis juridique ou d’un autre avis professionnel, vous devez

tance is required, the services of a competent professional should be sought. retenir les services d’un avocat ou d’un autre professionnel. Les analyses

The analysis contained herein should in no way be construed as being either comprises dans les presentes ne doivent etre interpretees d’aucune facon

official or unofficial policy of any governmental body. comme etant des politiques officielles ou non officielles de quelque organ-

isme gouvernemental que ce soit.

8 The paper used in this publication meets the minimum requirements of 8 Le papier utilise dans cette publication satisfait aux exigences minimales

American National Standard for Information Sciences — Permanence of Pa- de l’American National Standard for Information Sciences — Permanence of

per for Printed Library Materials, ANSI Z39.48-1984. Paper for Printed Library Materials, ANSI Z39.48-1984.

ISSN 0702-7206 ISBN 978-0-7798-4800-3

Printed in Canada by Thomson Reuters

THOMSON REUTERS

One Corporate Plaza Customer Relations2075 Kennedy Road Toronto 1-416-609-3800Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164M1T 3V4 Fax 1-416-298-5082

www.carswell.comContact www.carswell.com/email

Buck v. Morris 175

[Indexed as: Buck v. Morris]

Evelyn Buck, Plaintiff and Phyllis Morris, Evelina MacEachern,Wendy Gaertner, Stephen Granger, John Gallo, Al Wilson,

Metroland, Defendants

Ontario Superior Court of Justice

Docket: CV-09-096918-00

2015 ONSC 5632

M.L. Edwards J.

Heard: November 13-15, 18-22, 25-29, 2013; December 3-6, 10,12, 13, 2013; March 18, 21, 25, 2014

Judgment: September 15, 2015

Torts –––– Defamation — Privilege — Qualified privilege — When qualifiedprivilege arises — Statements by public figures — Members of municipalcouncils –––– Plaintiff was elected town councillor and defendants were mayorand other elected town councillors — Plaintiff felt that town council was dys-functional — Plaintiff wrote several blogs that were allegedly highly disparag-ing of senior town staff and in contravention of town’s Code of Conduct —Town council made statement that was published on town’s website and in localpaper in response to blogs and letter to editor that plaintiff had written, indicat-ing that plaintiff contravened Code, that she refused to apologize when asked todo so and that formal complaint was being made — Plaintiff brought action fordamages in defamation — Action dismissed — Code required that municipalcouncillors were not to publicly criticize staff, and plaintiff was bound byCode — Nothing in statement would lead reasonably informed reader of state-ment to conclude that plaintiff was unfit or incompetent to hold public office, orthat she abused staff or interfered with ability of staff to serve residents oftown — Statement expressed opinion that plaintiff violated Code when she im-properly criticized staff, and was both accurate and substantially true — Publica-tion of statement occurred during occasion of qualified privilege — Statementdid not go far beyond what was necessary or appropriate to respond to plaintiff’sblog entries and her letter to editor and privilege was not lost — While publica-tion of statement on town’s website was publication effectively to world atlarge, plaintiff’s blog entries were also publications to world at large — Defend-ants relied on legal advice in publishing statement — While legal advice couldnot, by itself, provide complete answer to whether or not defendants acted ingood faith, it was not unreasonable for defendants to rely on advice of lawyer —Defendants’ response was measured response to measured audience and did notexceed bounds of qualified privilege attached to occasion.

MUNICIPAL & PLANNING LAW REPORTS 44 M.P.L.R. (5th)176

Cases considered by M.L. Edwards J.:

Blair v. Consolidated Enfield Corp. (1995), 128 D.L.R. (4th) 73, 187 N.R. 241,86 O.A.C. 245, 25 O.R. (3d) 480 (note), 24 B.L.R. (2d) 161, [1995] 4 S.C.R.5, 1995 CarswellOnt 1393, 1995 CarswellOnt 1179, EYB 1995-67681,[1995] S.C.J. No. 29, [1995] A.C.S. No. 29, 25 O.R. (3d) 480 (S.C.C.) —considered

Botiuk v. Toronto Free Press Publications Ltd. (1995), 126 D.L.R. (4th) 609, 26C.C.L.T. (2d) 109, (sub nom. Botiuk v. Bardyn) 186 N.R. 1, (sub nom.Botiuk v. Bardyn) 85 O.A.C. 81, 1995 CarswellOnt 801, 1995 CarswellOnt1049, [1995] 3 S.C.R. 3, [1995] S.C.J. No. 69, EYB 1995-67440 (S.C.C.) —referred to

Fullowka v. Royal Oak Ventures Inc. (2010), 2010 SCC 5, 2010 CarswellNWT9, 2010 CarswellNWT 10, 71 C.C.L.T. (3d) 1, [2010] 4 W.W.R. 35, [2010]S.C.J. No. 5, [2010] A.C.S. No. 5, (sub nom. Fullowka v. Pinkerton’s ofCanada Ltd.) 398 N.R. 20, 315 D.L.R. (4th) 577, (sub nom. Fullowka v.Pinkerton’s of Canada Ltd.) 474 A.R. 1, (sub nom. Fullowka v. Pinkerton’sof Canada Ltd.) 479 W.A.C. 1, (sub nom. Fullowka v. Pinkerton’s ofCanada Ltd.) [2010] 1 S.C.R. 132, 80 C.C.E.L. (3d) 1 (S.C.C.) —considered

Grant v. Torstar Corp. (2009), 2009 SCC 61, 2009 CarswellOnt 7956, 2009CarswellOnt 7957, 79 C.P.R. (4th) 407, 397 N.R. 1, [2009] 3 S.C.R. 640,258 O.A.C. 285, 314 D.L.R. (4th) 1, EYB 2009-167615, 72 C.C.L.T. (3d) 1,204 C.R.R. (2d) 1, [2009] S.C.J. No. 61, 102 O.R. (3d) 607 (note)(S.C.C.) — referred to

Hanania v. Loren-Maltese (2004), 319 F.Supp.2d 814 (U.S. Dist. Ct. N.D.Ill.) — considered

Hill v. Church of Scientology of Toronto (1995), 30 C.R.R. (2d) 189, 25C.C.L.T. (2d) 89, 184 N.R. 1, (sub nom. Manning v. Hill) 126 D.L.R. (4th)129, 24 O.R. (3d) 865 (note), 84 O.A.C. 1, [1995] 2 S.C.R. 1130, 1995 Cars-wellOnt 396, 1995 CarswellOnt 534, [1995] S.C.J. No. 64, EYB 1995-68609, 24 O.R. (3d) 865 (S.C.C.) — considered

Horrocks v. Lowe (1974), [1975] A.C. 135, [1974] 1 All E.R. 662, [1974] 1W.L.R. 282 (U.K. H.L.) — considered

Minors v. Toronto Sun Publishing Corp. (1997), 1997 CarswellOnt 373, 21O.T.C. 325, [1997] O.J. No. 714 (Ont. Gen. Div.) — followed

RTC Engineering Consultants Ltd. v. Ontario (Ministry of Solicitor General &Correctional Services - Office of Fire Marshall) (2002), 2002 CarswellOnt851, (sub nom. RTC Engineering Consultants Ltd. v. Ontario) 156 O.A.C.96, (sub nom. RTC Engineering Consultants Ltd. v. Ontario) 58 O.R. (3d)726, [2002] O.J. No. 1001, [2002] O.T.C. 406 (Ont. C.A.) — referred to

Buck v. Morris M.L. Edwards J. 177

Statutes considered:

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

Generally — referred toCourts of Justice Act, R.S.O. 1990, c. C.43

s. 118 — consideredCriminal Code, R.S.C. 1985, c. C-46

Generally — referred toLibel and Slander Act, R.S.O. 1990, c. L.12

s. 22 — consideredMunicipal Act, 2001, S.O. 2001, c. 25

Generally — referred tos. 223.3(1) [en. 2006, c. 32, Sched. A, s. 98] — considereds. 448 — considereds. 448(1) — considered

Rules considered:

Rules of Civil Procedure, R.R.O. 1990, Reg. 194R. 26 — considered

ACTION by town councillor against mayor and other council members for dam-ages for alleged defamation.

Kevin L. MacDonald, Jamie M. Sanderson, for PlaintiffDavid G. Boghosian, Luciana Amaral, for Defendants Phyllis Morris, Evelina

MacEachern, Wendy Gaertner, Stephen Granger, John Gallo and Al Wilson

M.L. Edwards J.:

Overview1 This is a defamation action arising out of the publication of what has

been described as a “Statement from the Town of Aurora Council”. TheStatement was published on the website of the Town of Aurora (the“Town”) on July 16, 2009, and subsequently published by Metroland inits printed edition of The Banner on July 28, 2009. I will refer throughoutthese Reasons to the aforesaid Statement as “the Statement”. The State-ment had been prepared with the advice of outside counsel. It is ap-pended to these Reasons as Appendix A.

2 While this was a defamation action that proceeded to trial with a jury,the jury was ultimately struck as a result of the closing submissions ofplaintiff’s counsel. Contrary to an order that I had made during the trialdirecting that counsel were not to go to the jury with suggested damage


figures, counsel for the plaintiff invited the jury to award various headsof damages comparable to those awarded by a jury in Hill v. Church ofScientology of Toronto, [1995] 2 S.C.R. 1130 (S.C.C.). Not only was itimproper for counsel to cite case law to a jury in his closing submissions,it was entirely improper to invite the jury in this case to award damagescomparable to those awarded in Hill, when this Court had specificallydirected counsel to make no reference to suggested monetary awards.

3 In the face of these submissions, counsel for the defendants brought amotion for a mistrial. In reasons that I gave at the time, I determined thatjustice would be best served by striking the Jury Notice, as opposed todeclaring a mistrial in a situation where the parties had already expendedsubstantial sums of money over the course of a four-week trial.

4 Both counsel had completed their closing addresses to the jury, andthe jury awaited my final instructions. It was obvious that this case couldhave been determined by a jury but for the regrettable closing commentsof plaintiff’s counsel, which necessitated the jury being struck. Counselwere then invited to provide written submissions to me with respect tothe ultimate result. Those closing submissions were substantial and volu-minous in length, and while extremely helpful to the Court, resulted in afurther delay in the Court’s ultimate disposition of this matter.

5 At the time of the publication of the Statement, the plaintiff, EvelynBuck (“Buck”), was an elected Town councillor. The defendant, PhyllisMorris (“Morris”), was the Mayor of the Town. The defendants EvelinaMacEachern (“MacEachern”), Wendy Gaertner (“Gaertner”), StephenGranger (“Granger”), John Gallo (“Gallo”) and Al Wilson (“Wilson”),were also elected Town councillors for the Town. I will refer to thesedefendants collectively throughout my Reasons as the Council defend-ants. The action, as against Metroland, has been settled.

6 In the trial record, the plaintiff is described as “a great grandmotherwho throughout better than 30 years has been a dedicated and conscien-tious politician”. The plaintiff is also described in the plaintiff’s writtenclosing submissions as follows:

She is not a first time politician, like three of the defendants in thiscase. She is a distinguished politician with an outstanding record ofpublic service which began in 1963. She is to Aurora what HazelMcCallion is to Mississauga. The Ontario government has recog-nized her significant contribution with a 25 Years of Service Award.There are few politicians in Ontario who have the track record and


success of Buck, the foundation of which is grounded in honesty,integrity, and dedication to those that she serves.

7 Character evidence was called on behalf of Buck through various wit-nesses, specifically John Rogers, Grace Marsh and Tim Jones, all ofwhom testified to Buck’s personal honesty and integrity. While Buck’shonesty and integrity may not be called into question by my Reasons,given my ultimate determination in this matter, some might see her judg-ment as being called into question. In no way, however, should my deter-mination in this matter reflect on Buck’s honesty, integrity and the yearsof service that she has given to the Town of Aurora.

The Issues8 In his written submissions, counsel for the Council defendants frames

the issues to be determined by this Court as follows:

(a) has the plaintiff proven on the balance of probabilities that thewords complained of in the Statement, and/or what is later de-scribed as the Mascarin letter, are defamatory of the plaintiff;

(b) have the defendants proven on a balance of probabilities that thewords complained of in the Statement and the Mascarin letter aresubstantially true;

(c) are the words complained of in the Statement and/or Mascarin let-ter expressions of an opinion and, if so, have the defendantsproven on a balance of probabilities that any person could hon-estly express that opinion on the proven facts;

(d) has the plaintiff proven on a balance of probabilities that any ofthe defendants exceeded the limits of the duty or interest, givingrise to the privilege of the occasion on which they published theStatement by having it read aloud in open Council on July 21,2009, and thereafter had it posted on the Town of Aurora’s web-site and published in two local newspapers, together with the Mas-carin letter being posted on the Town of Aurora’s website;

(e) has the plaintiff proven on a balance of probabilities that any ofthe defendants dominant motive for causing the Statement to beread aloud in open Council on July 21, 2009, and thereafter postedon the Town of Aurora website as of July 22, 2009 and publishedin the two local newspapers, together with the Mascarin letter be-ing posted on the Town of Aurora website, was actual or ex-pressed malice;


(f) are the defendants entitled to rely on the statutory defence set outin section 448(1) of the Municipal Act 2001; and,

(g) if the plaintiff is successful on the liability issues, what if anydamages are to be assessed by this Court in favour of the plaintiff?

9 I agree with the framing of the issues in this manner, which waslargely followed by plaintiff’s counsel in his closing written submissions.

The Evidence10 The manner in which the facts unfolded in June and July 2009, lead-

ing up to the Statements publication, must be seen in the context of thepolitical climate of the Aurora Town Council between 2006 and 2009.Buck described the Town Council as being dysfunctional. She indicatedthat there was a lack of civility and that people did not even acknowledgethat she was there; using her words, there was a “total lack of courtesy”.Buck’s views were shared by one of her colleagues, Councillor AllisonCollins-Marakas (“Collins”), who in her evidence described her time onCouncil as being “mentally, emotionally and physically exhausting”.Collins held this view because of the “unbelievable toxic nature of theinteractions”. Collins attributed the toxic nature of the Town Council tothe defendants Morris and MacEachern, while describing her relationshipwith the defendants Wilson, Gaertner and Gallo as being largely cordial.

11 Councillor Robert McRoberts (“McRoberts”), who was called as awitness for the plaintiff, stated in his evidence that the word “dysfunc-tional” was an apt description for the Aurora Town Council. However,having said that, he went on to clarify that there were “a number of occa-sions where things went quite smoothly”, but that there were many occa-sions where things would be “strained”.

12 As will become clear as my Reasons unfold, while there is, in myview, no doubt that Buck is a person of integrity and honesty, she isequally very opinionated and was more than anxious to express her opin-ions in a public fashion. Her expressions of those opinions largely lie atthe foundation of how it was that the Statement was published and thistrial ultimately proceeded.

13 In the early part of June 2009, various members of the Aurora TownCouncil became concerned about several blogs written by Buck that weresaid to be highly disparaging of senior Town staff. As well as potentiallydamaging staff morale, according to the theory of the defence, the blogs


contravened section 4 of the Town’s Code of Conduct (“the Code”).Among other things, the Code states:

Members of Council shall refrain from publicly criticizing individualmembers of staff in a way that casts aspersions on their professionalcompetence and credibility.

14 The various defendants who testified at trial stated they believed thatBuck’s comments in her blog postings, dated June 1, 6 and 11, 2009, andin a comment she posted on The Aurora Citizen blog site on June 2,2009, were highly disparaging of Town staff. The defendants argue thatthese various blog postings disparaged the Town staff in the followingways:

(a) they accused the Town solicitor and the Town Chief Administra-tive Officer, (“CAO”), of having conspired to doctor the minutesof the May 12, 2009 Council meeting;

(b) they accused the Town solicitor and the Town CAO of conspiringwith the Mayor (the defendant Morris) and each other to avoidimplementing a direction of Council;

(c) they insinuated that the Town CAO was incompetent;

(d) they accused the clerk of committing a breach of trust in violationof the Criminal Code of Canada;

(e) they accused the Town solicitor of breaching his professional ethi-cal obligations as a licenced lawyer in relation to the alleged doc-toring of the minutes of the May 12, 2009 Council meeting;

(f) they accused the Town CAO of acting illegally, i.e. in excess ofhis authority; and

(g) they accused the Town treasurer of mocking, sarcastic and conde-scending behaviour in statements toward Council members.

15 Plaintiff’s counsel argued that there is no documentary proof of anyemployee complaints or concerns regarding these blog posts. However,the Town solicitor, Christopher Cooper (“Cooper”), did testify that hefound the blogs objectionable in the manner in which they malignedTown staff, and in particular the one that cast aspersions on his own pro-fessional reputation. He testified that he brought his concerns to the at-tention of the Mayor and the Town CAO, Neil Garbe (“Garbe”).

16 While plaintiff’s counsel may be accurate in his written closing sub-missions that there were no written complaints from Town staff, I acceptthe evidence of Cooper both with respect to the blogs’ impact on him


personally, and the fact that he brought to Garbe’s attention how he feltabout Buck’s blog writing.

17 Collins was called as a witness in this case by the plaintiff. Amongstother things, she confirmed that the portion of the Town’s Code restrict-ing a municipal councillor’s right to criticize staff was appropriate. Sheconfirmed in cross-examination that Exhibit 10, the plaintiff’s blog deal-ing with the doctoring of minutes, was a suggestion by Buck of wrong-doing. She also confirmed that the essence of Exhibit 10 was a sugges-tion by Buck that the Town clerk was guilty of a breach of trust and anoffence under the Criminal Code.

18 Collins also confirmed in cross-examination that an attack on Townstaff was a legitimate concern, given that staff do not have the ability toset the record straight in a public forum. She also agreed that the infor-mal letter of complaint authored by the Council defendants (to which Iwill make greater reference later in my Reasons) that was sent to Buckhad, as its focus, concerns with respect to Town staff.

19 McRoberts acknowledged during the course of his evidence that theblogs written by Buck insinuated that senior Town staff had acted inap-propriately, and were an unwarranted public criticism of Town staff. Mc-Roberts testified that he got the impression from fellow councillors thatTown staff or Town councillors were upset. McRoberts further con-firmed in his evidence that there was a concern about what Buck hadwritten because she was publicly criticizing the professional confidenceand credibility of the Town’s CAO. Finally, when questioned whetherBuck was publicly saying that Garbe was doing something without au-thority, he agreed that Garbe likely felt bothered by that statement. All ofthis evidence, from a witness called by the plaintiff, gives credence to theconcerns of the defendant councillors.

20 In cross-examination, McRoberts agreed that there was an urgent sit-uation arising out of Buck’s disparaging comments about Town staff. Hewas cross-examined with respect to his views concerning Mr. Mascarin’sopinion (“the Mascarin opinion”), and stated that he did not fully agreewith Mr. Mascarin’s determinations, but did agree that there was a con-cern with what Buck had posted on her blog criticizing Town staff.

21 McRoberts was cross-examined with respect to Buck’s blog concern-ing Garbe and her suggestion that Garbe was acting outside of his scopeof authority. McRoberts stated that this blog was close to the line. Hestated that she did in fact go over the line when she suggested that Mr.Elliot had “snorted”.


22 McRoberts confirmed that other councillors had told him that staffwere upset, and that he had in fact been told that they needed to defendthe staff and the Town corporation. McRoberts also confirmed that whileBuck was entitled to freedom of expression, such freedom did not allowfor the public criticism of Town staff.

Buck’s Evidence23 Buck was examined with respect to the Town Code. She stated that

she did not feel there was a need for the Code and that it was ridiculous.When questioned with respect to her reaction to being investigated shestated that she was outraged, and that she was a citizen of Canada. Sherhetorically questioned who had the right to investigate her unless shehad broken the law.

24 When questioned about any employee complaints to her regarding hercomments, she stated that she had received an email from Garbe thatstaff did not like to see their names in her blog. She stated she under-stood this, and that she did not realize that her blog was on Google. Thismay be viewed as a form of acknowledgment by Buck that she realized,after the fact, that her blog may have offended the staff she mentioned byname, given that she did not realize that her blog could be searched onGoogle.

25 Buck confirmed that Wilson requested an apology from her, but char-acterized that request as an explosive outburst, to which she was not pre-pared to respond. She also confirmed that McRoberts had called herabout doing something to ameliorate the problem. She stated that she ap-preciated his concern and that she would think about it, but that she didnot do what he requested.

26 Buck was questioned with respect to her reaction to the reading of theStatement at the Council meeting on July 21, 2009. She indicated that itwas distressing for her and that she had no way to respond to it. Shestated that she felt helpless. She indicated that the Statement was notwhat it appeared to be. While it was made to appear on the Town ofAurora’s logo, in fact, it was nothing more than a majority decision ofsix Town councillors. When questioned with respect to the impact theStatement had on her, she indicated that her life had been suspended forfour years. The Statement had taken away all of her enjoyment of life asit had been hanging over her. She stated that she had a great weight in-side her and that she wanted to resolve it.


27 In cross-examination, Buck confirmed that the publication of theStatement did not cause her to lose her job, nor did she lose any income.She further confirmed that she never received any emails or letters, andthere were no blog postings criticizing her with respect to the content ofthe Statement. She confirmed that she never sought any medical assis-tance, nor did she take any medication. Nonetheless, she stated that theexperience had been tortuous in the extreme. She confirmed that shewanted to safeguard her legacy. She stated that we live in a country witha Charter, and her feeling was that her rights had been assailed by theCouncil defendants. She said that if she did not take a stand, the Charterwas worthless.

28 It is worth pausing at this point to note that this is a defamation ac-tion. This is not an action in which anyone’s freedom of expressionunder the Charter of Rights and Freedoms is on trial.

29 When questioned with respect to any disagreements she had withTown staff, Buck stated that because she was not a member of the publicshe had a role to play, and that she did not have to accept what staff said.She further indicated that if she disagreed with what Town staff said, shewould say so, and that would become part of the debate.

30 When examined with respect to Exhibit 42, which is a blog posting inwhich Buck criticized Garbe, she was asked whether or not her statementin this blog entry was disparaging. She indicated that it was a statementof fact, and that she was right to post it because it was a matter of seriousconcern. She was questioned as to whether or not she was publicly call-ing out the CAO and suggesting that he did not know what he was doing.In response, Buck stated that Garbe did not do what he was supposed todo and what the law required of him. She stated that because she was anelected representative she was entitled to make those statements. Thisevidence needs to be contrasted with section 4 of the Code, insofar as itrestricts a Town councillor’s right to make disparaging comments aboutTown staff in public. Buck was questioned with respect to Exhibit 45, anemail dated December 9, 2009, which may be seen as being critical ofGarbe. This email was sent to all staff. While Buck confirmed in cross-examination that it was an error to send the email to all staff, she had noregrets about publicly criticizing him.

31 Buck was cross-examined with respect to Exhibit 52, an email ex-change dated August 20, 2010, concerning Jason Ballantyne (“Ballan-tyne”). Ballantyne is a member of Town staff. She confirmed that at notime did she speak to Ballantyne, nor did she feel any obligation to do so.


She disagreed with Garbe when he said that the statements made by herabout him were untrue. She later told Garbe that she did not intend topublicly challenge the competence of Town staff once she realized thatGoogle allowed people to access her blog.

32 Ballantyne complained (Exhibit 53) to Council about what he charac-terized as the libellous statement Buck made in her blog dated August23, 2010. In that regard, Buck stated that while she did not recall receiv-ing the complaint, she did not dispute it. Exhibit 54 is a blog from Buckdated August 24, 2010, apologizing for an earlier blog. However, shedoes not identify the staff person to whom she is directing the apology.With respect to Ballantyne’s harassment complaint, Buck stated in cross-examination that she was indignant because she felt harassed, and shewas more the victim than the culprit. She was of the view that Ballantynewas pressured to file the complaint (for which no evidence was profferedin support), and in any case she stated that she did not feel that the anti-harassment policy applied to her. Finally, she stated with respect to Bal-lantyne’s complaint that she now sees many things differently, which shewould correct if she did it again.

33 As to the ultimate determination concerning Ballantyne’s complaint,she stated that she did not recall being found guilty of workplace harass-ment. She does recall that a finding was made but she did not agree withit, and in any case, dismissed it in the same way she dismissed Ballan-tyne’s complaint. She stated that the complaint was not the truth. Shestated her position was that she was a politician, and that she had a rightto defend herself as a politician.

34 With respect to Exhibit 59, Buck’s blog of June 11, 2009, Buck re-mained of the view that Mr. Elliot did in fact give a derisory snort, andthat the purpose of her blog was to allow the public to make up their ownminds. Buck was asked in cross-examination whether Mr. Elliot con-ducted himself in a professional and competent fashion on that evening,to which Ms. Buck did not agree that he did. The video clip of the meet-ing at which Mr. Elliot is supposed to have snorted, Exhibit 60, in myview, does not support Buck’s viewpoint of what occurred at thatmeeting.

35 Buck was questioned as to how she would react if the jury decidedthere had been a violation of the Code in connection with her blog entryat Exhibit 31, “The buzz around Town - How can minutes of a Councilmeeting be doctored?”, Buck stated that she would not accept the judg-ment of the jury. Such an answer demonstrates Buck’s political charac-


ter. Her evidence reflects a disposition of “it is my way or the highway”.As the jury in this case has now been discharged, Buck will have to con-sider the decision of this Court.

36 These are just a number of examples in the evidence of Buck’s blogpostings that establish that she was not shy about criticizing Town staffin a very public fashion; this despite section 4 of the Town’s Code whichmakes clear such criticism in a public forum was not acceptable. (SeeExhibits 42 to 47 inclusive, 51 to 55 inclusive, and 59).

37 When asked about such criticism in cross-examination, Buck made itquite clear that in her mind, she was entitled to disparage Town staff inpublic when it was a statement of fact and a matter of serious concern. Inessence, her cross-examination with regard to her critical blogging aboutTown staff came down to her perceived entitlement as an elected repre-sentative to make such statements regardless of the constraints imposedby section 4 of the Code.

38 What is equally clear from Buck’s evidence is that she had few, ifany, regrets about her critical blogging as it related to Town staff. Evenin a situation where she had been called to task about her criticism of amember of Town staff (see Exhibits 53 to 55) and recognized the need toapologize, she did so without acknowledging in a public way the personto whom the apology was directed.

39 Fundamentally, Buck’s perspective on her right to say whatever shewanted when it came to criticism of Town staff and fellow colleaguescan be found in her concluding statement in her blog of June 2, 2009(Exhibit 32), “I am a woman hear me roar”, in which she stated:

...What we have here is worth the fight. Yes, people know I’m there.Yes, you will always know what’s going down. It is what I promised.It is what I will continue to deliver. With my Blog...as good as thebest and better than the rest. My head is unbowed.

[My Emphasis]

40 The irony of her statement in her blog, “My head is unbowed”, can befound in the very nature of this lawsuit. Buck claims she was defamed bythe defendants when they published the Statement. The Statement, as myReasons will make clear, was in fact a measured and truthful response toBuck’s critical blogging about Town staff. Buck’s head was unbowedwhen she blogged in 2009 and 2010. She remained “unbowed” at trialwhen she made clear in cross-examination that she would not accept theverdict of the jury, had it determined there had been a violation of theCode as it relates to Exhibit 31.


41 Buck was questioned whether she agreed that it would be appropriateand prudent to consult a lawyer before proceeding with a Code com-plaint. In response, she indicated that she did not agree. This view can becontrasted with the views that Buck expressed in Exhibit 61, which is ablog entry of hers dated December 19, 2008. In this blog, Buck statesspecifically that a person about to make a Code complaint is advised toobtain legal advice before making an allegation of a conflict of interest,and that it would be wise to consult with a solicitor before making anyallegation of bad conduct against an elected official.

42 A number of witnesses were called by the plaintiff to attest to hergood character. Mr. Tim Jones (“Jones”) was the Mayor of Aurora be-tween 1994 and 2006. He testified that Buck was one of the most honestindividuals that he had ever met. In cross-examination, Jones confirmedan incident, reflected in Exhibit 62, in which Buck had struck a fellowcouncillor with a newspaper. Jones also confirmed that Buck was part ofthe dysfunction of the Town Council at that time.

43 Grace Marsh was called as a witness by the plaintiff. She had beenelected to the Town Council in 2006 and resigned. She stated that sheknew Buck very well and that she was extremely honest. She further tes-tified that Buck had a high level of integrity.

44 Mr. John Rogers (“Rogers”) was called as a witness by the plaintiff.He had worked as the Town CAO through 2005 and had known Buck forapproximately 25 years. He testified that she was an extremely honestperson who could sometimes be very direct. He testified that she was aperson of great integrity.

45 Peter Storms (“Storms”) was called as a witness to testify to an inci-dent which occurred shortly after the May 12, 2009 Council meeting,attended by Ms. St. Kitts (“St. Kitts”). Storms professed that he knewnothing of this lawsuit until he became aware of some local press cover-age during the course of this trial. He believed that he had some evidencethat this Court should be aware of. He testified that he had a chancemeeting with Morris when he bumped into her in a local grocery storeand she made a comment to the effect that Buck was an “old cow, senileand a nuisance”.

46 In cross-examination, Storms confirmed that he had worked on Jones’campaign but could not recall the specific year. He stated that he did notbear any animosity to Ms. Morris. The evidence of Storms is signifi-cantly at odds with the evidence of Morris. Morris stated that while sherecalls seeing Storms in the local grocery store shortly after the meeting


involving St. Kitts, at no time did she have the conversation attested toby Storms. She specifically denied that she called the plaintiff an “oldcow” or that she was “senile”.

47 When Buck was cross-examined with respect to her written blog as itrelates to the CAO, Mr. Garbe, (Exhibit 42), she summarized her evi-dence by stating: “I am an elected representative; I am entitled to makethose statements”.

48 While Buck did not sign the Code, which amongst other things re-quires that the municipal councillors for the Town are not to publiclycriticize staff, in my view, she would have been bound by the provisionsof the Code, as it became a formal by-law when it was adopted by TownCouncil in By-law 5036-08.C.

49 The purpose of the Code, as it relates to the requirement that munici-pal councillors not criticize Town staff, is sensible and obvious, giventhat Town staff have no means by which to defend themselves in a publicforum. It is perhaps ironic that in an earlier blog (Exhibit 38), Buck hadstated:

It is a gross injustice to allow complaints against a public servant tobecome part of the public record, given that the target of the criticismhas no opportunity to respond.

50 When confronted with the irony of this statement, Buck stated incross-examination that, as a Council member, she could voice disagree-ments with staff publicly on her blog because she was “not a member ofthe public”. Rather, she believed that she was exercising her role as anelected representative.

51 As I have repeated more than once, nothing in these Reasons shouldin any way reflect on Buck’s honesty and integrity during the years ofservice that she has dedicated to municipal politics and to the Town ofAurora. However, I would be remiss if I did not comment on the fact thatwhen she testified in-chief, Buck had no difficulty in responding to ques-tions from her counsel Mr. MacDonald. In cross-examination, however,there were many occasions when Buck was non-responsive to questionsfrom Mr. Boghosian, and was often evasive. As well, there were manyoccasions when I observed Buck as someone who chose to expand on heranswer to place herself in the best possible light, rather than answer witha simple yes or no.

52 These observations are also borne out in how she responded to whathas been referred to as the informal complaint letter and her various andnumerous blog postings critical of Town staff.


53 The process adopted by the Council defendants up to the point in timewhen they sent the informal complaint letter to Buck, was entirely pri-vate and confidential. That process was dramatically elevated by Buck inher response (See Exhibit 18 and 25).

54 Rather than respond by way of a private communication, Buck choseto turn a private debate into a very public debate. Buck published herresponse to Mayor Morris in a very public forum - a letter to the editor ofa local newspaper. Her defiant response essentially says ‘I will say whatI want, when I want and to whomever I want.’

Mascarin Evidence55 As a result of the defendant councillors’ concern regarding Buck’s

public criticism of Town staff in her blogs, a closed door session ofcouncil took place on June 3, 2009. Neither Buck, McRoberts, nor Col-lins were in attendance at the closed door session. During that session,the councillors determined to seek legal advice from John Mascarin(“Mascarin”) from the law firm Aird Berlis. Mascarin is a well-respectedspecialist in municipal law. Mascarin was retained to review Buck’sblogs in an effort to determine whether she had violated the Town’sCode. As well, Morris, McRoberts and MacEachern, were authorized asa subcommittee to seek advice and take action on behalf of the TownCouncil as it was deemed necessary. McRoberts, who was not at themeeting and did not vote in favour of retaining Mascarin, was not infavour of this approach as it was not reflective of an “informalcomplaint”.

56 McRoberts was not the only member of council who found it objec-tionable for council to hire a lawyer to provide a legal opinion. Collinswas of the same view. While the outside observer might conclude thatthe events of June and July 2009 were “much ado about nothing”, andreflected a highly dysfunctional Aurora Town Council, the fact that alegal opinion was sought was not inconsistent with the views that Buckhad expressed in an earlier blog dated December 19, 2008 (Exhibit 61).

57 As part of his retainer, Mascarin testified that he reviewed the Codesof Conduct of other municipalities and determined that the Town’s Codewas comparable. Mascarin stated that he was initially retained by theTown to review the June 1, 2009 blog entry and the June 2, 2009 com-ment in The Aurora Citizen, and to provide advice to the Town withrespect to any possible contraventions under the Code. In addition to re-viewing the aforementioned two particular blog entries, Mascarin also


determined that it was appropriate to look further and review other blogposts written by Buck.

58 Mascarin was called as a witness by the Council defendants. No onein this lawsuit has suggested that Mascarin is anything other than a well-qualified lawyer in the field of municipal law. Mascarin testified as a factwitness, not as an expert.

59 Mascarin provided an assessment of the various blog entries that hereviewed, and whether or not those blog entries reflected unfair and im-proper criticism of Town staff. A suggestion was made by plaintiff’scounsel that Mascarin did not review the blog entries prior to providinghis opinion. Mascarin, in his evidence, made it quite clear that while hisdocket entries may not have reflected specific review of the blog entries,his evidence was a categorical denial that he had not reviewed the blogentries and, in fact, stated that he had reviewed the blog entries on morethan one occasion. I accept Mascarin’s evidence that he did in fact re-view all of the relevant blog entries authored by Buck.

60 In addition to reviewing the various blog entries that have been dis-cussed at length in this trial, Mascarin reviewed various video extracts -one of which related to Buck’s comments in her June 11, 2009 blog,(Exhibit 59). In that entry she makes various comments about Mr. Elliotand, in particular, a snorting noise at the meeting in the video. My reviewof the video in no way reflects Mr. Elliot snorting or being derisory. Anobjective viewing of this video, in fact, leads me to conclude that Mr.Elliott was respectful of all Town councillors.

61 Mascarin confirmed in his evidence that he drafted what is describedas the informal complaint letter, as well as the Statement. He further con-firmed in his evidence that he was not influenced by any of the Councildefendants in terms of the content of these documents. I accept his evi-dence in that regard.

62 Mascarin confirmed that throughout his course of dealings with theCouncil defendants, the intention had been to obtain an apology fromBuck with respect to her criticisms of Town staff. He further confirmedthat up until the time Buck wrote her letter to the editor at The Auroran,the intention had been to keep the whole process private.

63 As to the authority of the Town to hire outside counsel to investigatea possible Code complaint, Mascarin indicated that he had been retainedon other occasions by other Town Councils, and that the Council defend-ants were not acting without authority and their conduct was notoutrageous.


64 Exhibit 70 is an exchange of emails with the defendant Morris, inwhich Mascarin indicates, from his perspective, why Buck’s commentsshould not be tolerated. In my view, this exchange of emails confirmsthat the Council defendants’ motivation was not to embarrass Buck.Rather, their motivation was solely aimed at protecting the staff of theTown of Aurora from improper public criticism.

65 Mascarin was cross-examined as to whether or not he sought to castthe facts against Buck in the worst possible way. Mascarin testified thatin fact he did the opposite, and that he was very concerned about what hewas being asked to do and how it could impact on Buck’s reputation.Mascarin denied that he was biased, and stated that he had an open mindand strove to give his client the correct opinion as objectively as he couldas to whether or not Buck had contravened the Code.

66 Mascarin was quite clear that Buck had every right to her freedom ofspeech, but that this right was not absolute, and it was limited by reason-able constraints imposed by law. In that regard, section 4 of the Codemight be viewed as a reasonable limitation on a Town councillor’s rightto criticize staff in a public forum. There would be nothing improper in aTown councillor having a private discussion with a staff person.

67 As to the actual publication of the Statement, Mascarin testified that itbehoved his client to say something about what had occurred after Buckwent public with her letter to the editor. In that regard, he stated a publicstatement was important so the public had the complete story. He statedthat the Statement was published in the fashion that it was in order toallow the public to know what was going on, and not as counsel for Bucksuggested, to have the “sting widespread”.

68 There is nothing in the evidence to indicate, nor was I in any way ofthe view, that Mascarin was anything other than a professional legal ad-visor. Mascarin was not a “yes man”. I do not accept the submissionsmade by plaintiff’s counsel that Mascarin was not independent, detailedor comprehensive. I equally reject the submission that Mascarin wasbiased.

69 Mascarin presented his legal opinion to the Town Council in a closedin-camera meeting. The plaintiff was in attendance at that meeting andhad an opportunity to hear what Mascarin had to say about her, as well ashis recommendations. At this in-camera meeting, one of the Town coun-cillors, the defendant Al Wilson, asked the plaintiff if she would apolo-gize for her criticisms of Town staff as set forth in her blogs. The plain-


tiff indicated that she did not believe that she had done anything wrongand no apology was forthcoming.

70 Mascarin’s opinion is dated June 16, 2009 (Exhibit 19). Mascarinconcluded that Buck’s comments in her various blog entries:

(a) revealed confidential information from closed meetings, in contra-vention of section 2 of the Code;

(b) demonstrated little consideration for the decision-making processof Council and were disrespectful of the Mayor, members ofCouncil and of Council as a whole in breach of section 3 of theCode; and,

(c) perhaps most importantly, were highly critical of various membersof staff in contravention of section 4 of the Code.

71 With his conclusions, Mascarin advised the Town Council that itshould take steps to mitigate any damage from Buck’s blog, and recom-mended that Council first proceed with an informal complaint procedurethat would request that Buck apologize in writing to Council and staff,commit to retract her published comments, and execute and abide by theprovisions of the Code.

72 Following Mascarin’s recommendations, Council decided to proceedwith the informal procedure and directed him to prepare an informalcomplaint. Mascarin was of the opinion that any individual member ofCouncil could undertake the informal complaint procedure, but Councilas a body could not bring an informal complaint. It was for that reasonthat the informal letter was eventually signed by six individual council-lors (the Council defendants), as opposed to simply being signed by theMayor on behalf of Council.

73 Mascarin prepared a draft informal complaint letter and provided it tothe three members of the subcommittee referenced in paragraph 55above. McRoberts requested changes that Mascarin interpreted as an ef-fort to soften the tone of the letter, and to make it more palatable forBuck to receive. For the most part, McRoberts suggested changes wereincorporated into the informal complaint letter.

74 In furtherance of efforts to have Buck apologize for her blogs, Mc-Roberts took it upon himself to speak with Buck to attempt to resolve theissue in a manner that would not require the informal complaint. On June28, 2009, McRoberts and Buck spoke, at which time, according to hisevidence at trial, Buck advised McRoberts that she would consider post-ing some retraction concerning her blogs about staff. For reasons that


remain unexplained, McRoberts never told any of the Council defendantsabout Buck’s response. Buck also never communicated to the Councildefendants any intention to post a retraction of her blogs critical of Townstaff.

75 On June 29, 2009, a day after McRoberts had spoken with Buck,Morris emailed McRoberts to advise him that Council would proceedwith the informal complaint. McRoberts indicated that he did not want todiscuss or redebate the issue at that time. One might have thought thatthis would have been a good opportunity for McRoberts to have toldMorris about Buck’s statement to him on June 28, 2009, that she wouldconsider posting a retraction.

76 When the Council defendants became aware of McRoberts’ evidenceabout the meeting of June 28, 2009, the essence of their evidence, notsurprisingly, indicated that had they known of this conversation, theymight not have delivered the informal complaint. Granger indicated inhis evidence that it would have indicated a significant de-escalation onthe part of Buck, and Mr. Gallo stated that it would have been a “gamechanger”.

77 The informal complaint was signed by all of the Council defendants.McRoberts refused to sign the informal complaint because he believedthat it was “over the top” to have the letter drafted by a lawyer if it wasmeant to be informal.

78 The Mayor of Aurora at the time, Morris, sent the informal complaintletter to the plaintiff, on June 29, 2009. I will refer to this letter as theinformal complaint letter throughout these Reasons. The informal com-plaint letter was a private communication. In fact, to this point in time,all of the discussions concerning the plaintiff’s blog postings and theirramifications had been in private. The informal complaint letter, amongstother things, sought a public apology from the plaintiff. The purpose ofthe public apology was to counter the public criticisms and accusationsmade by the plaintiff against various senior staff.

79 Perhaps in hindsight, Buck’s reaction to the delivery of the informalcomplaint letter was not surprising. Buck prepared a response to theMayor (the defendant Morris), that was first published on Buck’s blog onJuly 2, 2009. A similar version was sent to the local newspaper, TheAuroran, as a letter to the editor (“Buck letter”), which was published onJuly 7, 2009. The Buck letter was also picked up by The Aurora Banner,and published on July 12, 2009.


80 Defence counsel argued that Buck’s letter created an entirely falseimpression of what had occurred to that point in time. Amongst otherthings:

(a) Buck’s letter to the editor accused the Aurora Town Council ofbringing a Code complaint against her on fabricated grounds;

(b) that the lawyer hired by Town Council had come to no conclu-sions adverse to her;

(c) that the real reason that the matter was proceeding was an attackon her personal right to freedom of expression;

(d) that the only reason that Mascarin had been retained was to inves-tigate her so as to “pound her into submission”; and

(e) that she had refused to acknowledge the true reason for the Codecomplaint, and that she had provided no acknowledgement ofwrongdoing nor an apology, nor a retraction.

81 The publishing of the Statement and Mascarin letter by the Councildefendants was a response to the publication of the Buck letter to theeditor in The Auroran. In fact, the genesis of this action dates back anumber of weeks prior to Buck’s letter to the editor.

82 The plaintiff chose to turn an informal complaint process that hadbeen dealt with in private, into a very public dispute. Theoretically, it isargued, as a result of the letter the entire Town of Aurora would poten-tially have a distorted view of what had actually occurred between June 1and July 2, 2009.

The Nitkin Report83 On June 18, 2009, the Town of Aurora appointed David Nitkin

(“Nitkin”) as the Integrity Commissioner, pursuant to the provisions ofsection 223.3(1) of the Municipal Act.

84 During the course of a closed session meeting of the Aurora TownCouncil on July 21, 2009, a resolution was passed authorizing a formalcomplaint (the “Complaint”) to be filed with the Integrity Commissionerrelating to the conduct of the plaintiff. The resolution also provided thatthe Statement should be read out in an open session of the Aurora TownCouncil by the Mayor, and published in both local newspapers and onthe Town website, together with the confidential legal opinion that theTown had obtained from Mascarin.

85 The complaint was delivered to the Integrity Commissioner on July22, 2009. On August 5, 2009, Nitkin sent an email to all members of the


Aurora Town Council advising that he had provided his report (“theNitkin Report”) to the Town’s Director of Corporate Services. On Sep-tember 15, 2009, a motion was passed at the Aurora Town Council pur-suant to which the Nitkin Report was received for information and madepublic.

86 At the commencement of this trial, plaintiff’s counsel, without objec-tion by defence counsel, made reference to the Nitkin Report in his open-ing to the jury. My notes of the opening by plaintiff’s counsel in thisregard indicate that Mr. MacDonald advised the jury that the complaintmade by the Council defendants was “unacceptable, ill-formed andwholly political”.

87 I ultimately came to the conclusion that the Nitkin Report was notadmissible. This trial was a defamation action in which the jury wouldhave been called upon to answer numerous questions. Fundamental,however, to the answering of those questions and now my ultimate deter-mination, will be a finding as to whether the Statement was defamatory.The opinions expressed by Nitkin in his report of August 5, 2009, in myview, add nothing to the decision that the jury in this case would ulti-mately have been called upon to make. In a situation where Nitkin wouldnot be subject to a cross-examination (because he would not have been acompellable witness), there was a real danger that the jurors could abdi-cate their role as fact-finders, and simply accept the opinion of Mr.Nitkin, given his impressive title as the Integrity Commissioner.

88 While Nitkin occupied the statutory role of an Integrity Commis-sioner, the jury would not have had the benefit of knowing what his cre-dentials were when he undertook his review of the Complaint. The jurywould also not have had the benefit of knowing what, if any, investiga-tive work Nitkin undertook to ultimately arrive at his opinion. I do notethat in the report itself there was reference to three emails, dated July 24,July 28, and July 30, 2009, in which he appears to have advised the com-plainants, the Council defendants in this matter, that the formal com-plaint was “ill-formed and inappropriate”. This Court would not havehad the benefit of knowing what thought process and what informationNitkin had to arrive at the aforementioned conclusion. He was not a com-pellable witness, and without the benefit of knowing how Nitkin arrivedat his conclusions, it would have been highly prejudicial to allow the juryto rely on the opinions of Nitkin to inform themselves with respect totheir fundamental task of determining whether or not the Statement was


defamatory. Similarly, my decision in this matter is not influenced byNitkin’s report.

The Evidence of the Council Defendants89 All of the Council defendants testified. Each of the Council defend-

ants denied that they were in any way motivated by malice, nor did theyhave an intention to do anything other than ensure that unfair criticism ofstaff was countered in a public fashion.

90 Evelina MacEachern testified that she had received concerns fromstaff with respect to Buck’s blogging. While this is hearsay evidence, Iallowed its admission to assess the state of mind of the Council defend-ants. In other words, the defendants were of the belief that in fact therewere legitimate concerns of staff arising from Buck’s blogs.

91 McRoberts testified that he had spoken with Buck about the possibil-ity of addressing the concerns of the Council defendants with some formof apology. McRoberts stated that in his discussion with Buck, he re-ceived some indication that she might give consideration to such a courseof action. None of the Council defendants who testified stated that theywere ever told by McRoberts of such a possibility, and that if in fact theyhad been so advised it might not have been necessary to proceed with theinformal complaint or anything else that occurred in this lawsuit.

92 The various Council defendants who were questioned as to their inputinto the preparation of Mascarin’s opinion confirmed that Mascarin’sopinion was his own, and that they did not direct Mascarin in any waywith respect to how he should conduct his investigation or what herecommended.

93 In her evidence, MacEachern indicated that she and her colleagues,now the Council defendants in this action, did not take filing a complaintagainst Buck lightly. It was for that reason that they wanted a third partyto review Buck’s blog entries. As such, they retained Mascarin to pro-vide them with advice.

94 Once Buck went public with her letter to the editor, MacEachern indi-cated that Mascarin was instructed to prepare a formal complaint.MacEachern indicated that this direction had already been given to Mas-carin during the closed door session earlier in June. MacEachern con-firmed that she did not speak to Mascarin about his opinion, and that hedrafted the Statement without any input from her. MacEachern con-firmed the position of all of the Council defendants, that their actionsendeavoured to show their support for the staff. MacEachern indicated


that she signed the Code complaint because she believed it was not in thecommunity’s best interest to sit by and let Buck’s commentary stand.MacEachern stated that it was not her intention to harm or muzzle Buck.MacEachern indicated that she did not apologize to Buck, nor did shebelieve that it was appropriate to remove the Statement from the Townwebsite, as Buck’s blog entries with negative comments concerning staffremained on her website and, therefore, were open to review by anyone.

95 Cooper was called as a witness on behalf of the Council defendants.Cooper was the Town solicitor in 2009. He was taken to Exhibit 31, theJune 1, 2009 blog, and indicated that he had concerns with respect to thesuggestion that there was collusion between him and the CAO. He testi-fied that Buck’s suggestion in her blog that the minutes had beendoctored impacted him personally and professionally.

96 Cooper indicated that when the negative comments concerning staffmade by Buck in her blogs were brought to his attention, he tried to getBuck to retract or otherwise deal with her criticisms, but was not suc-cessful in getting her to take the blogs down. In cross-examination,Cooper indicated that his recollection was “shoddy at best” and that hedid not recall writing to Buck, nor did he file a misconduct complaint.While Cooper’s memory may have been “shoddy”, to use his words, Ihave no difficulty in accepting his evidence as to how he felt when heread Buck’s blog of June 1, 2009.

97 Wendy Gaertner testified that as a member of the Aurora TownCouncil she voted to retain the law firm of Aird Berlis LLP, as she be-lieved that Buck’s blog postings contravened a very important section ofthe Code, which says that Town councillors cannot criticize Town staffin public. She indicated that she felt, as did her colleagues, both legallyand morally obligated to take action to show staff that they supportedthem. She further indicated that she voted to retain Aird Berlis LLP asshe felt that they needed professional advice.

98 As to the reasons for the Statement’s publication, Gaertner indicatedthat the Council defendants felt the need to let the staff know they werethere for them and to make a correcting statement in response to the pub-lic Buck letter, which the defendants did not feel was factual. She indi-cated that she trusted the legal opinion that she got from Mascarin.

99 As to the question of personal animosity toward Buck, Gaertner indi-cated that while she was not happy with Buck, and that sometimes shedid not agree with Buck, she was upset because Buck had disregarded


the Code and seriously hurt some people. Gaertner indicated that it wasnot her intention to restrict Buck’s right of political free speech.

100 When she was shown the libel notice plaintiff’s counsel sent to her(Exhibit 76) in cross-examination, Gaertner indicated that she thoughtthe letter was a waste of her time. She was asked whether the publicationof the Statement was a form of retaliation. She replied that it was not, butrather it was for the protection of the Town staff.

101 Morris testified that her relationship with Buck was strained. Morristestified with respect to what occurred at the Town Council meeting ofMay 12, 2009, involving the presentation by Ms. St. Kitts. She stated thatshe had no idea that Ms. St. Kitts was coming to the “open forum”, nordid she have any forewarning as to what ultimately occurred. Much hasbeen made of that meeting by plaintiff’s counsel, in his suggestion thatthe plaintiff was “thrown under the bus”. Having reviewed the video ofthe May 12, 2009 Council meeting, I do not share this view.

102 Morris stated that she voted in favour of the publication of the State-ment for the simple reason that she wanted to protect Town staff, and toshow that Council valued them and that the public have that trust. Sheindicated that she did not believe that the Statement would, in any way,damage Buck’s reputation. In cross-examination, when questioned as towhether or not she believed that Buck had a reputation for being ex-tremely honest and a person of integrity, Morris stated that she did notagree.

103 A considerable amount of time was spent by plaintiff’s counsel withrespect to the exchange of emails between Buck and Wilson (Exhibit 78).Morris was asked why she did not tell Wilson not to send these types ofemails, to which Morris replied that councillors are independent and shecould not tell them what they can and cannot write to each other.

104 In cross-examination, Morris was asked whether a politician has theright to send letters to an editor, Morris answered that of course politi-cians have such a right, but that there were limits to that right when itcame to criticism of Town staff.

The Plaintiff’s Position on Defamation105 Counsel for Buck argues that the Statement (which was read aloud in

open Council session, posted on the Town’s website and published in thetwo local newspapers), and the statements in the Mascarin letter, sentfrom Aird & Berlis LLP to Council, dated July 16, 2009, the Mascarinletter (which was published on the Town’s website), were defamatory of


the plaintiff. Fundamentally, counsel argues that the statements are false.They meant and were understood to mean that the plaintiff, (who was aTown councillor with a tremendous record of distinguished public ser-vice and a reputation for honesty and integrity), was:

(a) incompetent to hold public office;

(b) had abused and attacked unidentified senior Town staff;

(c) had interfered with the Town staff’s ability to serve the residentsof Aurora; and

(d) had acted unlawfully, had breached numerous provisions of theCode, had acted unethically, and had wrongly refused toapologize.

In summary, it is argued that the statements published by the Councildefendants discredited the plaintiff and lowered her in the minds of rightthinking members of society.

The Council Defendants’ Position on Defamation106 The Council defendants maintain that the Statement read aloud at the

July 21, 2009 Council Meeting, posted on the Town’s website, and pub-lished in the two local newspapers, and the July 16, 2009 Mascarin letter,were not defamatory of the plaintiff. The best evidence of that, they state,is the fact that Buck did not receive or see a single email, blog posting,letter to the editor or any other communication criticizing her about herconduct referred to in the Statement and the Mascarin letter. Further-more, she received significantly more votes in the 2010 municipal elec-tion after the publications were published, as compared to the 2006 elec-tion, prior to the publications.

The Plaintiff’s Position on the Defence of Justification107 The plaintiff maintains that the statements published by the Council

defendants were not factually true. The best evidence of this, the plaintiffargues, is that there was no written employee complaints under the Codeor the Town Harassment policy, formal or informal, arising from theplaintiff’s blog postings prior to the publication of the Statement. Fur-thermore, apart from Cooper (who described his memory of the eventsand the prior week before testifying as “shoddy at best”), the Councildefendants failed to call any Town employees to provide direct evidenceto substantiate any of the claims in the Statement. Without the evidenceof identifiable employees, there are no facts to substantiate that any em-ployee believed that any blog comment “cast aspersions on their profes-


sional competence and credibility”. Finally, the plaintiff signed the Codeof Ethics and agreed to be bound by the same provision with respect toemployees as was in the Code, which signified her commitment to ad-here to the ethical standards of an elected official.

108 As to the retention of Mascarin, plaintiff’s counsel argues that he wasnot retained to be the Town’s Integrity Commissioner and he was notindependent. Plaintiff’s counsel argues that Mascarin did not conduct athorough review of the materials, nor was his opinion detailed and com-prehensive. They claim that the best evidence of this is Mascarin’s ownadmissions, which included:

(a) the Town was an important client to him, for whom his firm hadcompleted “a couple hundred thousand dollars of work”;

(b) his 2009 time descriptions were accurate and he confirmed thatthere is not a single reference to him having looked at the blogsprior to June 16, 2009 (the very day that he attended a Councilmeeting to present his opinion);

(c) he did not meet with the plaintiff to get her side of the story or anyexplanation from her;

(d) he did not “go out of his way” to look for positive blogs from theplaintiff;

(e) he did not believe he had an obligation to go out and find them ormake a list of them;

(f) he never interviewed any staff at the Town;

(g) he never prepared any statements;

(h) he had no knowledge of any complaints under the Town harass-ment policy;

(i) the only complaint in his file was from the defendant EvelinaMacEachern dated February 20, 2009, which he received after hisfile was opened;

(j) he knew that Phyllis Morris and Evelina MacEachern, who weretwo of the three member committee providing him with instruc-tions, were “not very happy” with the plaintiff;

(k) he could not give an opinion on a defamation claim without anidentifiable plaintiff which he did not have; and


(l) his opinion was only as good as the information given to him byhis clients.

109 It is suggested by plaintiff’s counsel that the plaintiff did not refuse toapologize, as the defendants claimed. She did not specifically refusewhen Councillor Wilson requested an apology in an aggressive manner,and she advised McRoberts on June 28, 2009, that she would consider it.

The Defendants’ Position on the Defence of Justification110 The Council defendants maintain that the factual statements in the

Statement and the July 16, 2009 Mascarin letter were true, such that thedefence of justification applies. They say that the best evidence of that isthe fact that Mascarin, a specialist in municipal law, drafted both theStatement and the July 16, 2009 letter without any input from any of theCouncil defendants. Most of the content of the Statement came fromMascarin’s opinions of June 16 and July 16, 2009. It is argued for thedefence that the only factual statements in the Statement, beyond the re-cital of what Mascarin stated in his reports concerning the nature of thestatements Buck made about staff, were accurate in gist and substance. Afair reading of Buck’s blogs that were the subject of the Mascarin letter,not to mention the many blogs disparaging of staff both before and afterthe blogs that were explicitly reviewed by Mascarin, prove that Buckcriticized and disparaged senior Town staff in her blogs such that theassertion in the Statement to that effect is true.

Analysis

Issue 1: Was the Council statement and/or the Mascarin letterdefamatory of the plaintiff

111 It is beyond dispute that the plaintiff in a defamation action has theonus of proving the following in order to obtain an award of damages:

(a) that the impugned words were defamatory, in the sense that theywould tend to lower the plaintiff’s reputation in the eyes of a rea-sonable person;

(b) that the words in fact refer to the plaintiff, and;

(c) that the words were published, meaning that they were communi-cated to at least one person other than the plaintiff. (See Grant v.Torstar Corp., 2009 SCC 61 (S.C.C.), at para. 28).

112 The Council defendants concede that parts (b) and (c) of the aforesaidtest have been met. However, with respect to whether the impugned


words were defamatory, they argue that there is no evidence that Buck’sreputation was lowered as a result of the publication of the Statement orthe Mascarin letter.

113 Counsel for the plaintiff argues that the statements made in the State-ment and the Mascarin letter were false. It is suggested in the plaintiff’swritten submissions that the Statement was false because:

They meant and were understood to mean that the plaintiff (who wasa Town councillor with a tremendous record of distinguished publicservice and a reputation for honesty and integrity) was incompetentto hold public office, had abused and attacked unidentified seniorTown staff, had interfered with the Town staffs ability to service theresidents of Aurora, had acted unlawfully, had breached numerousprovisions of the Code, had acted unethically and had wrongfully re-fused to apologize. The Statements published by the defendants dis-credited the plaintiff and lowered her in the minds of right thinkingmembers of society.

A similar pleading in that regard can be found in the plaintiff’s statementof claim.

114 There is nothing in the Statement that in my view would lead a rea-sonably informed reader of the Statement to conclude that the plaintiffwas unfit or “incompetent to hold public office”. Equally, there wasnothing in the Statement that would lead a reasonably informed reader toconclude that the plaintiff had “abused staff or interfered with the abilityof staff to serve the residents of Aurora”. Moreover, there was nothing inthe Statement or the Mascarin letter that would lead a reasonably in-formed reader to conclude that Buck had “acted unlawfully”. What theStatement does say is that legal counsel, i.e. Mascarin, had recommendedthat counsel request Buck to apologize for her statements in publications,and agree to abide by the Code of Conduct. The opinion expressed byMascarin, which was acted upon by the Council defendants, was to theeffect that Buck had violated the Code, particularly when she had im-properly criticized Town staff. Such a statement was, in my view,accurate.

Issue #2: Was the Statement and Mascarin letter substantially true115 The Council defendants rely on section 22 of the Libel and Slander

Act, R.S.O. 1990, c.L. 12, as a defence to the plaintiff’s claim. Section 22provides:

In an action for libel or slander for words containing two or moredistinct charges against the plaintiff, a defence of justification shall


not fail by reason only that the truth of every charge is not proved ifthe words not proved to be true do not materially injure the plaintiff’sreputation having regard to the truth of the remaining charges.

116 It is a long-standing principle in defamation cases, as expressed byMcRae J. in Minors v. Toronto Sun Publishing Corp., [1997] O.J. No.714 (Ont. Gen. Div.), at para. 52, that truth is a complete defence to libel.McRae J. went on in his Reasons to state:

[u]nder a plea of justification, if the defence proves the materialstatements in the alleged libel are substantially true this is sufficientfor a defence of justification.

117 Counsel for the defendants, in my view, quite accurately states in hisfactum that it is “clear that the ‘sting of the charge’ contained in the pub-lications, (i.e. the Statement and Mascarin opinion), that Buck made dis-paraging comments about staff that maligned their professional compe-tence and credibility, which legal counsel for the Town opined were aviolation of the Town’s Code of Conduct”.

118 A review of the Statement as a whole, together with the Mascarinletter, leaves me with no doubt that the gist of these documents was sub-stantially true.

119 At paragraph two of the Statement, it is suggested “[the] publicationsby Councillor Buck were disturbing in that they were highly critical andvery disparaging of senior Town staff”. There is an abundance of evi-dence to support this statement. McRoberts, who was called as a witnesson behalf of Buck, agreed in his cross-examination, as reflected in Ex-hibit 27, that there was an urgency to remedy the current situation. Thesituation that he was referring to in Exhibit 27, as acknowledged in hiscross-examination, were the blogs written by Buck that were “highlycritical and very disparaging of senior Town staff”.

120 Further evidence in support of what was written in the second para-graph of the Statement was Mr. Cooper’s testimony, who while acknowl-edging that his memory was “shoddy at best”, stated that he foundBuck’s blogs as they related to him “objectionable”; sufficiently enoughthat he expressed concerns to Morris and Garbe.

121 The blogs themselves that were entered into evidence, particularlythose blogs dated June 1, 2, 6 and 11, 2009, equally make clear thatBuck’s comments were highly critical and disparaging of Town staff. Itwould be difficult for anyone reading the aforementioned blogs to cometo any other conclusion other than that Buck was being critical and dis-paraging of Town staff in the following regard:


(a) Garbe was ignorant of the responsibilities of his position;

(b) Garbe acted illegally;

(c) Garbe and Cooper had conspired with Mayor Morris to falsely re-present the proceedings of the May 12, 2009 Council meeting in-volving St. Kitts;

(d) that the Town clerk had committed a breach of trust; and

(e) that the Town solicitor had breached his ethical obligations as amember of the Law Society.

122 Paragraph three of the Statement reads as follows: Due to the serious nature of the comments made by Councillor Buck,Council retained independent legal counsel to review CouncillorBuck’s blog postings, and to advise Council.

123 Unless one came to the conclusion that Mascarin was not retained asindependent legal counsel, I fail to see how this statement is anythingother than a statement of fact. Mr. MacDonald, through his cross-exami-nation, would have this Court conclude that Mascarin was not indepen-dent legal counsel retained by the Council defendants. I am not in anyway satisfied that Mascarin was anything other than independent legalcounsel, and certainly not the puppet of the Council defendants.

124 The Statement goes on in paragraph four to indicate that: Legal counsel conducted a thorough review of the materials and con-cluded that Councillor Buck’s publications contravened numerousprovisions of the Council Code of Conduct, which included un-founded and completely unmerited public criticism of staff in a man-ner that unjustifiably maligned their professional competence andcreditability.

125 While Mr. MacDonald again endeavored to attack the credibility ofMascarin’s review of the materials, and even went so far as to suggestthat Mascarin himself had not undertaken such a review, I am not satis-fied from the evidence that anything contained in paragraph four of theStatement is untrue. I am equally satisfied that where the Statementstates:

Legal counsel’s opinion was detailed and comprehensive and its con-clusions were amply supported by a fair reading of CouncillorBuck’s publications as well as by her verbal statements and actions.


The Mascarin opinion was in fact both detailed and comprehensive, andthe conclusions drawn were amply supported by a fair reading of Buck’svarious blogs that were reviewed by Mascarin in his opinion.

126 The Statement continues as follows: “Council has formally adopted aCode of Conduct for members of Council”. This is a statement of fact.The Statement then continues:

Each member of Council, other than Councillor Buck, has executed acopy of the Code of Conduct signifying their commitment to adhereto the ethical standards expected of an elected representative of thepublic.

This statement is also accurate, in that Buck had not executed a copy ofthe Code. Counsel for Buck argues that it is implicit from this portion ofthe Statement that Buck had wrongfully failed to execute a copy of theCode and was, therefore, unwilling to adhere to the ethical standards ex-pected of an elected official. It is argued that the Statement admits thefact that Buck had executed the Ethics Code, which counsel for the plain-tiff suggest is almost identical to the Code and, as such, Buck consideredherself bound by the Code whether she signed it or not.

127 Whether or not Buck had executed a document similar to the Code,and whether she considered herself bound by it even though she had notsigned it, does not detract from the fact that the Statement is accuratewhen it indicates that every member of council, other than Buck, hadexecuted the Code. Such a statement was not only accurate, it was true.

128 The Statement then goes on to provide that: Legal counsel recommended that Council request Councillor Buck toapologize for her statements and publications, retract them and agreeto abide by the Code of Conduct.

This statement was both accurate and true given the recommendationsfound in Mascarin’s opinion.

129 The Statement further provides: “She has twice, once verbally andonce in writing, been requested to do so. She has both times adamantlyrefused to do so”. This statement is also true. The evidence of Wilson isto the effect that he verbally asked Buck for an apology at the June 16,2009 Council meeting after a review of the June 16, 2009 Mascarin opin-ion. Having been asked by Wilson for an apology, the evidence estab-lishes that Buck responded with a question as opposed to an apology.

130 The informal complaint letter also requested an apology. No suchapology was ever forthcoming. Buck’s only response was her letter to


Mayor Morris, subsequently published in a local newspaper, whichleaves little doubt that Buck saw no reason why she should apologize.

131 The third to last paragraph of the Statement indicates that the TownCouncil had received legal advice that if an apology and retraction werenot made by Buck, given the “serious nature of the contraventions a for-mal complaint would be filed with the Town’s Integrity Commissioner”.This statement is also accurate and true, as the legal advice reflected inMascarin’s evidence and his opinion letter makes clear. In fact, a com-plaint was filed with the Town’s Integrity Commissioner.

132 The second to last paragraph of the Statement goes on to provide:“Disappointingly, Council’s attempts to informally resolve the matterhave not met with any measure of success”. It is difficult to see how thisStatement is anything other than accurate. If there had been a resolutionof the matter, this lawsuit would never had occurred. While McRobertsin his evidence testified to the fact that he met with Buck prior to thedelivery of the informal complaint letter, and left that meeting with thebelief that there might be progress with respect to a possible retractionand/or apology, this information was never communicated to any of theother Council defendants. McRoberts’ evidence does not in any way de-tract from the statement that attempts to resolve the matter had not metwith any measure of success.

133 Counsel for Buck suggests that the Statement “wrongfully stated thata finding had been made that Buck had been found to have contravenedthe Code before an integrity commissioner had launched an investigationor made anything, in breach of Buck’s legal rights, including the pre-sumption of innocence”. There is nothing in the Statement, in my view,that suggests a finding had already been made that Buck had been foundto have contravened the Code. Rather, the Statement reflects the fact thatthe Council defendants had received legal advice that warranted a com-plaint being filed with the Town’s Integrity Commissioner. Nothing inthe Statement suggests that there had been a finding that Buck had con-travened the Code.

134 What is particularly telling with respect to the suggestion that theStatement and Mascarin opinion were defamatory and contained not onlyinaccurate but also untrue statements as they related to Buck, is that noevidence was called by Buck other than her own evidence that would inany way lend credence to the arguments now made on her behalf to sug-gest that the Statement contained untrue statements of fact. No witnesswas called that in any way supported the position argued on behalf of


Buck. In my view, Buck read more into the Statement than could possi-bly be warranted by any reasonably informed reader of that document.

The Law of Qualified Privilege135 Plaintiff’s counsel conceded at trial that the publication of the State-

ment and the Mascarin letter occurred on an occasion of qualified privi-lege. It was suggested by counsel for the plaintiff that the defence ofqualified privilege should be taken from the jury as the defendant ex-ceeded the occasion of privilege. At trial both counsel agreed that thiswas an issue that had to be determined by me, as the trial judge, beforethis matter went to the jury.

The Plaintiff’s Position on the Defence of Qualified Privilege136 If the defendants could have claimed privilege in this case, plaintiff’s

counsel argues it was defeated for two reasons. First, the Council defend-ants’ dominant purpose for publishing the statements was an ulterior mo-tive that conflicted with the interest or duty. The Council defendantswere not acting to protect staff when they published the Statement andthe Mascarin letter, but rather they did so because they disliked the plain-tiff and wanted to silence her. It is argued that the publication of theStatement was retaliation for Buck’s letter to the editor in The Auroranwhich was not complimentary of staff. Second, the plaintiff argues thatthe Council defendants exceeded the limits of the duty or interest givingrise to the privilege. The Statement was published generally to the worldat large and in two local newspapers. This exceeded the scope of theprivilege, as the Council defendants were under a duty to exercise re-straint and await the outcome of their formal complaint to the IntegrityCommissioner before launching a serious attack on the plaintiff’s profes-sional integrity.

The Defendant’s Position on the Defence of Qualified Privilege137 The Council defendants argue that the Statement and the Mascarin

letter of July 16, 2009, were published on an occasion of qualified privi-lege. This defence can be defeated only if it is determined that any of theCouncil defendants acted for a predominantly malicious purpose. TheCouncil defendants argue that although some of them may have had is-sues with the plaintiff because of her abrasive, confrontational and insult-ing style of discourse, and may not have liked her with respect to thepublishing of the Statement, they acted solely out of a concern to protectstaff and to ensure that the plaintiff did not continue her attacks on staff.


In support of this position, the defendants point to the fact that at no timedid any of the Council defendants take any action whatsoever in respectof insulting statements the plaintiff published about them. They claim thefact that the Council defendants relied on the opinion of an independentoutside legal counsel who drafted both the Statement and the July 16,2009 Mascarin letter, and who told them that they should publish bothdocuments is powerful evidence that the dominant purpose for publish-ing the publications was to protect and support staff, not to harm theplaintiff.

Analysis Regarding Qualified Privilege138 In essence, plaintiff’s counsel argues that to maintain the privilege

asserted by the Council defendants, they must have communicated theappropriate information to the appropriate people. Plaintiff’s counsel ar-gues that the Council defendants grossly exceeded what was appropriatewhen the Town published the Statement and Mascarin opinion on itswebsite, two local papers, and had it read out at a Town Council meetingwhich was televised on the local Rogers Cable channel. In this case,plaintiff’s counsel suggests that the privilege was lost because the publi-cation of the Statement and Mascarin opinion went far beyond what wasnecessary or appropriate to respond to the plaintiff’s blog entries andBuck’s letter to the editor. I disagree for reasons that I will expand onlater.

139 There can be no doubt that it is for the trial judge to determinewhether as a matter of law, an occasion is or is not one of qualified privi-lege. (See Raymond E. Brown, Brown on Defamation, 2d ed., loose-leaf(consulted on XX Month YYYY), (Toronto: Carswell, 2010), at 13-146,13-151 and 13-522 to 13-523. Both Mr. Boghosian and Mr. MacDonaldargued the question of whether or not the publication of the Statementand Mascarin letter was an occasion of qualified privilege prior to thismatter going to the jury. I ruled that this was an occasion of qualifiedprivilege.

140 Prior to this case going to the jury I delivered a Ruling that as a mat-ter of law, the Statement and Mascarin letter were published on an occa-sion of qualified privilege. In his written reply submissions Mr. MacDon-ald, for the plaintiff, suggests:

...[W]hatever questions were decided in order to put the case to thejury, went out the window with the jury (including the Ruling onwhether this was an occasion of qualified privilege and the Ruling on


whether reliance on legal advice is a factor to be considered on theissue of malice).

141 Mr. MacDonald, for the plaintiff, suggests that a judge must not cometo any conclusion on the evidence until the completion of the evidenceand argument. Implicit in this argument is the suggestion that the argu-ment in this case did not conclude until all of the written submissions hadbeen received by the Court. Mr. MacDonald further suggests that a judgein a non-jury civil case cannot make an interim finding of fact or law,which it is argued the Council defendants are now asking to be done.

142 It would seem incongruous to me now to accede to the argument be-ing made by Mr. MacDonald, that despite my Ruling prior to this casegoing to the jury, this Court should revisit that Ruling. To do so couldpotentially reward a party for causing the potential for a mistrial wherethe result that this case is converted into a judge alone trial.

143 By these comments I am not suggesting that Mr. MacDonald inten-tionally set out to provoke a mistrial, or convert this case from a jury tonon-jury trial when he suggested to the jury damage figures in violationof my earlier Ruling. It was unfortunate that Mr. MacDonald did what hedid, but I do not ascribe to him any improper motive. Nonetheless, Iagree with the submissions made by Mr. Boghosian that this Court hasalready determined that the Statement and Mascarin letter were pub-lished on an occasion of qualified privilege.

144 The application of the law of qualified privilege in a defamation ac-tion requires a common sense approach. An occasion of qualified privi-lege will be lost if the defendants have exceeded the limits of the duty orinterest that gives rise to the privilege. This can occur where the defend-ants communicate information that was not reasonably appropriate to thelegitimate purposes of the occasion. (See Botiuk v. Toronto Free PressPublications Ltd., [1995] 3 S.C.R. 3 (S.C.C.), at para. 85, [Botiuk], andHill, at para. 146). As well, the privilege can also be defeated if the infor-mation is communicated to an inappropriate or excessive number ofpersons.

145 In dealing with the question of whether or not the publication of theStatement and the Mascarin letter was communicated to appropriate per-sons, this Court must consider the fact that the information contained inthe Statement was not only published in local newspapers, but were alsoposted on the Town’s website. As well, the Statement was read aloud at ameeting of the Town Council that was broadcast on the local Rogerscommunity television station.


146 The publication of the Statement was a response to Buck’s publica-tion of her letter to the editor. The communication of the Statement in thelocal press was, in my view, a measured response to the same audiencethat potentially would have read Buck’s letter to the editor. Similarly, thereading of the Statement at the local Town Council, broadcast on a localtelevision station, was an equally measured response to a localcommunity.

147 However, the publication of the Statement on the Town’s website wasa publication effectively to the world at large. This Court can take judi-cial notice of the fact that with any search engine such as Google, anyonecould have accessed the Statement published on the Town website. Thiswas a publication to persons who did not have a legally recognized inter-est or duty to receive it. (See RTC Engineering Consultants Ltd. v.Ontario (Ministry of Solicitor General & Correctional Services - Officeof Fire Marshall) (2002), 58 O.R. (3d) 726 (Ont. C.A.), at para. 18.

148 In determining whether the publication of the Statement on theTown’s website exceeded the occasion of privilege, I must considerwhether this was an appropriate means of communication, bearing inmind that Buck’s various blog entries that this Court has determinedwere critical of Town staff were also publications to the world at large.Buck, in her evidence, stated that she had not recognized that her blog-ging was accessible through Google. I have no doubt that Buck believedshe was blogging to a relatively small audience interested in local Townmunicipal politics. That said, regardless of her intention, the blog was asmuch available to the world at large as was the publication of the State-ment on the Town website. In this age of social media and the internet,where virtually everything published on the internet is available to any-one, I am satisfied that where, as in this case, the defendants have pub-lished a document, such as the Statement that the Court has determined isthe subject of qualified privilege, that privilege is not lost if a publicationof the document is available on the internet where the publication is inresponse to something that the plaintiff has equally made available on theinternet.

149 Counsel for the plaintiff set forth in his written submissions variousreasons why the privilege did not exist, or if it did, why the privilege wasexceeded. It is suggested that Buck’s blog postings were published to avery limited audience of politically active persons in Aurora. That mayvery well have been Buck’s subjective belief, but as I have already indi-cated, there is no doubt that her blog postings were available to anyone


and, as such, the publication of the Statement on the Town’s websitewas, in my view, an appropriate response.

150 It is argued that the privilege was exceeded, or did not exist, becausethe staff affected by Buck’s blog postings was limited to four identifiedsenior administrative staff, i.e. the Chief Administrative Officer, the Di-rector of Corporate Services, the Town solicitor and the Treasurer.Whether or not the staff were directly identified by Buck in her blogs isirrelevant. The fact remains that those staff members were senior staffmembers, and also were easily identifiable by anyone with rudimentaryinternet search skills.

151 It is also argued that the occasion of privilege did not exist, or wasexceeded, because there was no urgency to any publication since no staffmember had filed any complaint under the Code or the Town Harass-ment Policy. Even if this Court did not accept the evidence of the defend-ants that the Statement and the Mascarin letter were published to showsupport for staff and to refute Buck’s erroneous and inflammatorymessages, this Court still has the evidence of McRoberts who was calledas a witness by the plaintiff. McRoberts testified that he felt the publica-tion of the Statement and Mascarin letter was a direct response to Buck’sresponding letter to the Mayor and subsequent publication of her letter tothe editor in a local newspaper. McRoberts confirmed that there was aneed for Council to show support for the staff in a public fashion.

152 It is also argued that the concerns of the Council defendants with re-spect to supporting staff could have been achieved via a simple email in-house to the various staff members concerned. Such an approach mayvery well have achieved one purpose, i.e. putting the minds of the staffpersons at rest. It would not, however, have achieved the purpose ofcommunicating support of the Council defendants and Town Council topublicly show support for its staff.

153 Having determined that the publication of the Statement and the Mas-carin letter occurred on an occasion of qualified privilege, and havingdetermined that the information communicated was reasonably appropri-ate to a reasonable audience, I must deal with whether or not the defenceof qualified privilege on the facts of this case was defeated by malice. Ifthe dominant motive for publishing a statement is actual or expressedmalice, the defence of qualified privilege will be defeated. (See Hill, atpara. 144).

154 The Supreme Court of Canada in Hill, described malice as follows:“Malice is commonly understood, in the popular sense, as spite or ill


will” (para. 148). In the Law of Defamation in Canada, Raymond E.Brown writes:

Malice is said to include, every unjustifiable intention to inflict injuryon the person defamed, and every wrong feeling in the man’s mind.Therefore, the motives of the defendant must be examined. (Ray-mond E. Brown, The Law of Defamation in Canada, 2d. ed. (To-ronto: Carswell, 1994), at page 1051.

155 The Supreme Court had occasion in Botiuk, at paras. 96 and 97, tocomment on malice in a defamation action, and drew a distinction in lawbetween carelessness with regard to the truth, which does not amount toactual malice, and recklessness, which does. Citing with approval theReasons of Lord Diplock in Horrocks v. Lowe (1974), [1975] A.C. 135(U.K. H.L.), Cory J. accepted that the following proposition was gener-ally representative of the Canadian position on the application of malice:

...[W]hat is required on the part of the defamer to entitle him to theprotection of the privilege is a positive belief in the truth of what hepublished or, as it is generally though tautologously termed, an “hon-est belief”. If he publishes untrue defamatory matter recklessly, with-out considering or caring whether it be true or not, he is in this, as inother branches of the law, treated as if he knew it to be false. Butindifference to the truth of what he publishes is not to be equatedwith carelessness, impulsiveness or irrationality in arriving at a posi-tive belief that it is true...but despite the imperfection of the mentalprocess by which the belief is arrived at, it may still be “honest”, i.e.a positive belief that the conclusions they have reached are true. Thelaw demands no more...

156 Counsel for the plaintiff suggests that there was a significant amountof anger, animosity, vindictiveness, spite, ill-will and ill-feeling on thepart of the Council defendants towards Buck. In support of that argu-ment, significant reliance is placed on a Council meeting that took placeon May 12, 2009, when the Town’s Mayor, the defendant Morris, per-mitted a lady by the name of St. Kitts, in the words of plaintiff’s counsel,“to harangue Buck with a barrage of unfounded and unsubstantiated alle-gations that Buck had harassed her, her husband and numerous membersof the Canada Day Parade subcommittee in the plaintiff’s web blog”. Itwas suggested to the jury during the course of Mr. MacDonald’s closingsubmissions that the plaintiff was effectively “thrown under the bus” byMorris, by allowing St. Kitts to conduct herself in the fashion that shedid on May 12, 2009.


157 I have reviewed the video of May 12, 2009, and fail to see how theconduct of the defendant Morris, or for that matter any of the Councildefendants, was malicious. What happened on May 12, 2009, occurredwithout any prior notice to any of the Town Council members, includingBuck and the Council defendants. I also take note of the evidence ofMascarin and Cooper, both of whom testified that they did not feel thatBuck had been thrown under the bus at the Council meeting of May 12,2009.

158 The plaintiff may have been deeply offended by the allegations madeby Ms. St. Kitts at the Council meeting of May 12, 2009, particularlygiven that her granddaughter was present at that time in anticipation ofsome form of an award that she was to receive. It is impossible, however,to impute Ms. St. Kitts’ comments to the Council defendants as proof ofmalice.

159 The plaintiff may very well have subjectively perceived that many ofher Town council colleagues, including the Council defendants, were notwith her on many municipal issues. My review of the limited video evi-dence at trial (Exhibit 4, 8 and 60) does not in any way support the sug-gestion made by plaintiff’s counsel that there was an underlying currentof maliciousness characterizing the relationship between Buck and theCouncil defendants.

160 As further evidence of malice on the part of the Council defendants,plaintiff’s counsel refers to the evidence of Peter Storms who testified toa chance encounter with the defendant Morris sometime in late May2009 or early June 2009, when Storms stated that Morris described Buckas a “senile old cow”, “crazy”, and “a fool”.

161 If I were to accept Storms’ evidence that the defendant Morris madethese comments, then I accept that such comments would not only beintemperate but could also form the foundation of a finding of malice.

162 I do not, however, find Storms to be a credible witness. Storms hadworked on the mayoral campaign of Tim Jones, when Mr. Jones wasdefeated by the defendant Morris. Storms could hardly be perceived thenby Morris as someone in whom she might “bear her soul” with respect toher true feelings towards Buck.

163 It is also entirely suspicious that Storms provided his evidence as aresult of having read about the trial in one of the local newspapers, anewspaper which he claimed to never read. It seems entirely coincidentalthat having acknowledged that he never read the local newspapers, The


Auroran or The Banner, that he should coincidentally have read such anewspaper during the course of this trial.

164 I have little understanding as to why Storms would give the evidencethat he did to this Court, but I did not find it credible for the reasons setforth above. Having rejected the evidence of Storms with respect to thealleged comments made by the defendant Morris, reliance on this evi-dence in support of a malice-based argument is unfounded.

165 Fundamentally, counsel for Buck suggests that the Council defend-ants “bore a long-standing grudge against Buck marked by feuding, quar-rels, threats, rivalry, vindictiveness, hostility and bitterness againstBuck”. They disliked Buck, were frustrated with her and “wished to si-lence her for expressing her views, which were not in line with theirs”.

166 Buck may undoubtedly have held these views, reflected in the writtensubmissions of her counsel. Having listened to the evidence of the Coun-cil defendants, I was not left with the impression that their actions inpublishing the Statement and the Mascarin letter were in any way moti-vated as a result of hostility and bitterness towards Buck. Undoubtedly,their political views may have differed. Politicians are expected to have a“thick skin”, but as I have already indicated, politicians are not expectedto bear the brunt of a defamatory statement made by colleagues in oppo-sition. However, this is not what occurred in this case. Buck has readmuch into the Statement that is not there. Regardless, I am not satisfiedthat if the Statement and the Mascarin letter were defamatory of Buck,the Council defendants exceeded the bounds of qualified privilege as aresult of malice directed towards Buck.

Reliance on Legal Advice167 During the course of the trial, I ruled that reliance on legal advice was

a factor that the jury could consider with respect to the issue of malice.Reliance on legal advice by itself cannot provide a complete answer towhether or not the Council defendants acted in good faith. Counsel forthe defendants suggests that reliance on legal advice, i.e. Mascarin’s ad-vice as reflected in the Mascarin letter, was something that could begiven considerable weight in the overall assessment of the issue of mal-ice. Mr. Boghosian for the Council defendants referred the Court to Blairv. Consolidated Enfield Corp.., [1995] 4 S.C.R. 5 (S.C.C.), at para. 65,where the Supreme Court determined that reliance on legal advice maymilitate against a finding of mala fides or bad faith. Counsel for Buckquite rightly argues that Blair is not a defamation case, but a corporate


law case, and does not incorporate the words malice, defamation or mu-nicipal politician anywhere in its analysis.

168 Mr. Boghosian also referred this Court to two decisions from theUnited Kingdom and United States that deal with the effect of relianceon legal advice as a defence to malice in defamation actions. In Hananiav. Loren-Maltese, 319 F.Supp.2d 814 (U.S. Dist. Ct. N.D. Ill. 2004), at839, it was determined that an “advice-of-counsel defence” exists wherethe defendant can show the following:

Before taking action:

1. he in good faith sought the advice of an attorney whom heconsidered competent, for the purpose of securing advice onthe lawfulness of his possible future conduct made a full andaccurate report to his attorney of all material facts which thedefendant knew; and

2. and acted strictly in accordance with the advice of his attor-ney who had been given a full report.

169 Counsel for the plaintiff, in my view, quite rightly points to the factthat a defence of advice-of-counsel was not pleaded by the Council de-fendants. Nonetheless, I am satisfied that if a motion had been broughtunder Rule 26, even during the course of trial in order to amend the state-ment of defence, such an amendment would have been granted.

170 I equally agree with plaintiff’s counsel that the defence of advice-of-counsel, while recognized in the law of Illinois, has not yet become thelaw of Ontario.

171 The Supreme Court of Canada in Fullowka v. Royal Oak VenturesInc., 2010 SCC 5 (S.C.C.), at paras. 88-90 [Fullowka], in part dealt withthe defence of legal advice in the context of a negligence action. One ofthe issues before the Supreme Court of Canada in Fullowka was whetherthe government could be held liable in negligence for failing to preventthe murder of nine miners who were killed when an explosive device wasdetonated by a striking miner. The Supreme Court held that the govern-ment and the mine inspectors had a statutory duty to ensure the safety ofthe mine. The Supreme Court of Canada went on to find that the govern-ment met this duty, when in good faith it sought and relied on legal ad-vice that recommended that the mining inspectors not be permitted toclose the mine for reasons related to labour relations issues and criminalactivity.

172 In Fullowka, the legal advice received was wrong. However, the Su-preme Court went on to state that despite the fact the legal advice was


wrong, it could not be said that it had “no consequence” to the action,and stated:

This advice goes precisely to the issue of whether the governmenttook reasonable care in deciding not to close the mine. It wouldrarely be negligent for officials to refrain from taking discretionaryactions that they have been advised by counsel, whose competenceand good faith in giving the advice they have no reason to doubt...theopposite view leads to alarming results (para. 89).

173 Plaintiff’s counsel is, of course, entirely correct in his written submis-sions when he points to the fact that Fullowka is a negligence action.While Fullowka was decided in the context of a negligence claim, in thecontext of the facts before this Court, I am satisfied that the time hascome that this Court can and should consider whether or not the defend-ants can rely on legal advice to negate any claim made of malice againstthem.

174 The evidence before this Court is unchallenged. The Council defend-ants relied on, and followed, the legal advice of Mascarin. There is noth-ing to suggest that Mascarin was anything other than a fully qualifiedexpert in the field of municipal law. Mascarin, of course, did not offer hisevidence to this Court in the context of an expert. Nonetheless, the Coun-cil defendants clearly relied on the expertise of Mascarin and followedhis advice. In that context it was not unreasonable for the Council de-fendants to rely on his advice, which in my view is a clear indication theCouncil defendants acted in good faith and without malice.

The Municipal Act and Section 448(1) as a Defence to the Plaintiff’sAction

175 At the completion of the evidence in this trial, counsel for the defend-ants sought to amend the statement of claim to plead section 448 of theMunicipal Act, 2001, S.O. 2001 c. 25, which provides:

No proceeding for damages or otherwise shall be commenced againsta member of council or an officer, employee or agent of a municipal-ity or a person acting under the instructions of the officer, employeeor agent for any act done in good faith in the performance or in-tended performance of a duty or authority under this Act or a by-lawpassed under it or for any alleged neglect or default in the perform-ance in good faith of the duty or authority.

176 Counsel for the defendants argues that this action provides a completedefence to the plaintiff’s claim.


177 Both counsel for the plaintiff and the Council defendants made writ-ten submissions with respect to the application of section 448 citedabove. Given my determination with respect to whether the Statementand the Mascarin letter were defamatory, and the application of the lawof qualified privilege, I do not intend to conduct any analysis with re-spect to the application of section 448. I also do this for the reason thatplaintiff’s counsel may have conducted his case before the jury in a fash-ion different from how it unfolded at trial, had he known of the intentionof the Council defendants to rely on section 448 of the Municipal Act. Ileave for another day, whether in the context of a defamation action in-volving municipal politicians, section 448 provides any defence to a de-famatory action. However, as a completely obiter comment, I do notethat section 448 would, on its face, only provide a defence where some-one has done an act in good faith in the performance of their intendedduty. In the face of a finding of bad faith (which I have not made in thiscase), or in the face of a finding of malice (which I have not made in thiscase), it would seem to me that section 448 would not provide a defenceto an action framed as a defamation action.

Theory of the Plaintiff Regarding Damages178 General Damages: Counsel for the plaintiff argues that the Council

defendants left no stone unturned, and published the Statement orally inopen Council session on the Town’s website and in the two local news-papers. The plaintiff is an upstanding politician who conducted herselfwith honesty and integrity through her distinguished political career. Herreputation has been harmed. The Council defendants, it is argued, stead-fastly refused to apologize or retract the statement, even at trial. Theplaintiff, therefore, it is argued, should be awarded general damages toreflect the damage the Council defendants did to her reputation, and theinjury done to her feelings, and the embarrassment and shame the plain-tiff has experienced.

179 Aggravated Damages: Plaintiff’s counsel notes that several of theCouncil defendants agreed that reputation is precious. Despite this, themajority of the Council defendants admitted that they did not considerthe plaintiff’s reputation and how it would be damaged by their publica-tion of the Statement and the Mascarin letter of July 16, 2009. All of theCouncil defendants admitted not only that they took no steps to takedown the statements, even after Integrity Commissioner’s process wascomplete, but that they wanted the Statement and Mascarin letter to stayup on the Town’s website.


180 Punitive Damages: In support of her claims for punitive damages,plaintiff’s counsel notes that the Council defendants posted the Statementand the Mascarin letter as widely as they could, and for as long as theycould. They published the Statement before making a complaint to theIntegrity Commissioner, and refused to take them down after the Integ-rity Commissioner’s process was complete. Indeed, it is argued that theCouncil defendants were able to keep the Statement published on theTown’s website by taking the technical position that a vote to remove thestatement was a reconsideration, which they could have overruled, butchose not to. It is also noted that the Council defendants even managed tokeep the Statement and the Mascarin letter posted during the 2010 muni-cipal election. It was only when the new Aurora Town Council took of-fice that the Statement and Mascarin letter were finally removed from theTown’s website on January 26, 2011, 553 days after they had beenposted on July 22, 2009.

Theory of the Defence Regarding Damages181 Assuming the Council defendants’ position on liability is rejected, the

defence counsel argues that the plaintiff has not made out a claim for anyactual damages. Regarding general damages, the plaintiff has not estab-lished any harm to her reputation whatsoever, and in fact she receivedsignificantly more votes in the 2010 election after the publication of theStatement as compared to the 2006 election before the Statement hadbeen published. It is the Council defendants’ position that even if liabilitywere found, contemptuous damages only should be awarded as therewas, at most, merely a technical libel. It is the Council defendants’ posi-tion that this action was brought for a primarily political purpose by theplaintiff, not to genuinely defend her reputation. They argue the appear-ance of the Council defendants’ political rivals at trial to bolster theplaintiff’s case is powerful support for this contention.

Damages182 In his written submissions, plaintiff’s counsel requests a substantial

damages award for defamation, including aggravated and punitive dam-ages in the sum of $500,000. In his closing submissions to the jury, Mr.MacDonald cited the Supreme Court of Canada decision of Hill, and em-phasized that the Supreme Court upheld a general damages award madeby a jury of $300,000, an aggravated damages award of $500,000, andpunitive damages of $800,000.


183 It is entirely permissible for counsel to go to the jury with a sugges-tion of appropriate damage awards in the context of a personal injurytrial. This is made clear by the provisions of section 118 of the Courts ofJustice Act. Why then is it that in a defamation action, counsel cannotand should not go to the jury with suggested damage figures? The answerto this question, perhaps, can be found in part in the Supreme Court’scomments in Hill, at para. 187. Under the heading “Comparison WithOther Libel Cases”, Cory J. states:

At the outset, I should state that I agree completely with the Court ofAppeal that each libel case is unique and that this particular case is ina “class by itself”. The assessment of damages in a libel case flowsfrom a particular confluence of the following elements: the natureand circumstances of the publication of the libel, the nature and posi-tion of the victim of the libel, the possible effects of the libel state-ment upon the life of the plaintiff, and the actions and motivations ofthe defendants. It follows that there is little to be gained from a de-tailed comparison of libel awards.

184 The facts of the case before me are in no way, shape or form, re-motely close to the facts presented in Hill. In that case, the conduct of thedefendants was clearly found to be egregious, not only with respect tothe libelous statements made but also with respect to the conduct of thevarious defendants after the publication of the libelous statement. Evenknowing that the statement in issue was false, the defendants in Hill con-tinued with their plea of justification or truth. Even at trial the plaintiffwas subjected to what was described as a demeaning cross-examination,and in the defence counsel’s closing address to the jury, the plaintiff, awell-respected Crown Attorney, was depicted as a “manipulative actor”.

185 The facts in Hill simply are not remotely close to the facts before thisCourt.

186 In the event that I had found that the Statement was defamatory of theplaintiff, and/or if I had found that the law of qualified privilege did notapply, I would have awarded a relatively nominal amount in generaldamages. In coming to this decision, I would take into account the factthat the plaintiff presented absolutely no evidence with respect to the im-pact on her reputation. Moreover, I would take into account the fact thatdespite the alleged defamatory nature of the Statement, the plaintiff wasre-elected as a Municipal Councillor subsequent to the publication of theStatement.

187 I would also take into account the character evidence that was presen-ted on behalf of Buck, specifically through the evidence of John Rogers,


Grace March and Tim Jones, all of whom testified as to Buck’s personalhonesty and integrity. What is telling from that evidence is that the im-pact of the alleged defamatory statement does not appear to have in anyway impacted on these character witnesses. Were I to have made anaward of general damages in this case, an appropriate award in my opin-ion would have been $10,000.00.

188 As to the claim for aggravated damages and punitive damages, in myview the evidence presented in this case would not warrant an awardunder either of these headings.

Conclusion189 There can be no doubt that politics, whether it be federal, provincial

or municipal, is not for the faint of heart. Some might say a thick skin isa prerequisite for any politician.

190 A thick skin, however, does not mean that a politician is fair game forthose intent on damaging their reputation with false, malicious, and de-famatory statements. Freedom of speech, whether in the political forumor not, does not extend to statements that are untrue and have as theirsole purpose an intent to damage someone else’s reputation.

191 The right to freedom of speech in our society is not an absolute right.While freedom of speech is a cherished right in a free and democraticsociety, there are reasonable limitations. The Town of Aurora, like manytowns and cities in the Province of Ontario, has a Code of Conduct thatpurports to codify parameters of reasonable conduct for elected Townofficials. One of the provisions in the Town Code is a requirement thatelected officials refrain from publicly criticizing Town staff. The reasonfor this limitation is obvious. Employees of the Town of Aurora are likefederal and provincial civil servants. They have no ability to respond topublic criticisms made of them in a public forum.

192 The plaintiff chose to post what I consider criticism of senior Townstaff in a public fashion in her blog entries and in her commentary to TheAurora Citizen. Members of an elected Town Council have every right tobe concerned about such conduct, and how it would ultimately impact onthose who the plaintiff has criticized in such a public fashion. It was notunreasonable on the part of the Council defendants, acting in their capac-ity as elected Town officials, to consider what course of conduct wasappropriate, and in doing so, to retain the services of outside legal coun-sel to provide guidance in that regard.


193 The plaintiff clearly has a perception that she has an unfettered rightto freedom of expression and freedom of speech. That freedom, however,is circumscribed by the Code. The elected Town officials for the Townof Aurora, comprising the Council defendants in this action, perceived,in my view correctly, that they had a duty and responsibility to set therecord straight. The plaintiff chose to go public with her letter to the edi-tor, presenting what the Council defendants argue was a distorted versionof what had actually occurred in the four weeks prior. It was the plain-tiff’s choice to go public with a letter to the editor.

194 The response by the Council defendants was to publish a statementand the legal opinion that they had received in a similar public fashion,by having it published in the same paper that the plaintiff had publishedher letter to the editor. One can hardly describe that part of the responseby the Council defendants as an inappropriate response to inappropriatepeople. As to the publishing of the Statement in the other local paper,there is no evidence that the Statement would have reached any morepeople by being published in the other paper than would otherwise havebeen reached. Finally, as to the publishing of the Statement in a publicforum at the local Town Council covered by the local Rogers Cable tele-vision, again there is no evidence to suggest that this reached any wideraudience than Buck’s letter to the editor. In my opinion, the defendants’response was a measured response to a measured audience, and in noway exceeds the bounds of the qualified privilege attached to thatoccasion.

195 For the reasons given, the plaintiff’s action is dismissed. If the partiesare unable to agree upon the costs of this action, written submissionslimited to 10 pages in length are to be submitted to the Court within 30days from the date of receipt of these Reasons. The parties are, however,strongly encouraged to resolve the issue of costs if at all possible.

Action dismissed.

Appendix A

Statement from Town of Aurora Council July 21, 2009

Several weeks ago Council became aware of a number of publicationsthat were posted on Councillor Buck’s weblog.


The publications by Councillor Buck were disturbing in that they werehighly critical and very disparaging of senior Town staff.

Due to the serious nature of the comments made by Councillor Buck,Council retained independent legal counsel to review Councillor Buck’sblog postings, and to advise Council.

Legal counsel conducted a thorough review of the materials and con-cluded that Councillor Buck’s publications contravened numerous provi-sions of the Council Code of Conduct, which included unfounded andcompletely unmerited public criticism of staff in a manner that unjustifi-ably maligned their professional competence and credibility.

Legal counsel’s opinion was detailed and comprehensive and its conclu-sions were amply supported by a fair reading of Councillor Buck’s publi-cations as well as by her verbal statements and actions.

Contrary to Councillor Buck’s allegations, Town staff at all times actedappropriately, diligently and conscientiously in carrying out their dutiesand responsibilities to the municipality.

Council respects and supports its staff and the efforts they make to en-sure that the Town’s residents are well served.

Council has formally adopted a Code of Conduct for members ofCouncil.

Each member of Council, other than Councillor Buck has executed acopy of the Code of Conduct signifying their commitment to adhere tothe ethical standards expected of an elected representative of the public.

Legal counsel recommended that Council request Councillor Buck toapologize for her statements and publications, retract them and agree toabide by the Code of Conduct.

She has twice, once verbally and once in writing, been requested to doso. She has both times adamantly refused to do so.

Council also received legal advice that recommended, in the event thatCouncil’s informal requests for an apology and retraction were rejectedand that given the serious nature of the contraventions, a formal com-plaint be filed with the Town’s Integrity Commissioner.

Disappointingly, Council’s attempts to informally resolve the matterhave not met with any measure of success.

Given the serious nature and the number of contraventions of the Code ofConduct and the potential harm they may cause to the Town and its staff,Council has therefore directed that a formal complaint be sent to the Di-


rector of Corporate Services to be forwarded to the Town’s IntegrityCommissioner in accordance with the complaint protocol.


[Indexed as: Pickering (City) v. Slade]

The Corporation of the City of Pickering and Kyle Bentley asthe Chief Building Official of the City of Pickering,

Respondents and James Slade and Nancy Slade,Applicants/Appellants

Ontario Court of Appeal

Docket: CA C60716

2016 ONCA 133

Janet Simmons, K. van Rensburg, L.B. Roberts JJ.A.

Heard: February 10, 2016

Judgment: February 10, 2016

Written reasons: February 16, 2016

Municipal law –––– By-laws — Enforcement — Penalties — Miscellane-ous –––– Injunctions — Property owners were issued building permit — Cityclaimed that amount of fill being deposited by owners exceeded what was ap-proved in building permit — Owners were found guilty of failing to complywith order under by-law and temporary injunction was issued — City appliedfor permanent injunctive relief compelling owners to remove additional fill thathad been deposited so that grade and elevation of their property complied withapproved grading and drainage drawing — Application was granted — Appealby owners dismissed — There was no merit to appeal — Owners had not estab-lished procedural unfairness or violation of applicable limitation period — By-law underpinning city’s application prohibited deposit of fill without permit —There was no basis on which to interfere with application judge’s conclusionsthat owners had deposited, or permitted deposit of, fill beyond that which wasallowed under building permit; and that as of date of hearing, their operationsdid not resemble “normal farming operation” that might have engaged exemp-tion under s. 6(2) of Farming and Food Production Protection Act, 1998 —Mandatory order granted by application judge was authorized under s. 38 ofBuilding Code Act, 1992 — Application judge did not err in not addressing anyminor amount of fill that may have been deposited on owners’ land by city —There was no possibility that proposed fresh evidence would have affected deci-sion under appeal.


Building Code Act, 1992, S.O. 1992, c. 23s. 38 — referred to

Pickering (City) v. Slade Per curiam 225

Courts of Justice Act, R.S.O. 1990, c. C.43s. 140 — referred to

Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1Generally — referred tos. 6(2) — referred to

APPEAL by property owners from judgment reported at Pickering (City) v.Slade (2015), 37 M.P.L.R. (5th) 115, 2015 ONSC 1571, 2015 CarswellOnt10384 (Ont. S.C.J.), prohibiting them from depositing additional fill on theirproperty, requiring them to remove deposited fill such that grade and elevationof their property complied with drainage and grading drawing, and granting cer-tain ancillary relief.

James Slade, Nancy Slade, for themselvesN. Cameron Murkar, for Respondents

Per curiam (orally):

1 The appellants appeal from a judgment prohibiting them from depos-iting additional fill on their property; requiring them to remove depositedfill such that the grade and elevation of their property complies with adrainage and grading drawing approved when their building permit wasissued; and granting certain ancillary relief.

2 The appellants raise multiple grounds of appeal challenging the pro-cedures adopted in hearing the application, the timeliness of the applica-tion, the interpretation of the bylaw underpinning the application and theapplication of the bylaw in the face of the Farming and Food ProductionProtection Act, 1998, S.O. 1998, c. 1. They also seek to file fresh evi-dence on appeal.

3 We see no merit in this appeal. The appellants have not establishedprocedural unfairness or violation of an applicable limitation period. Thebylaw underpinning the City’s injunction application prohibits the de-posit of fill without a permit. Fill is broadly defined and includes soil.We see no basis on which to interfere with the application judge’s con-clusions that the appellants have deposited, or permitted the deposit of,fill beyond that allowed under their building permit and that, as of thedate of the hearing, the appellants’ operations did not “resemble a normalfarming operation” that might have engaged any applicable exemption.

4 Further, with respect to the appellants’ assertion that they intended tocommence farming operations, as the application judge noted, as of thedate of the hearing, there was no evidence that had been done. Nor had


the appellants applied for an order under s. 6(2) of the Farming and FoodProduction Protection Act. The mandatory order granted by the applica-tion judge is authorized under s. 38 of the Building Code Act, 1992, S.O.1992, c. 23.

5 Based on the record before us, we are not satisfied the applicationjudge erred in not addressing any minor amount of fill that may havebeen deposited on the appellants’ land by the City.

6 The appellants’ application to file fresh evidence is dismissed. Apartfrom any other considerations, we see no possibility that the evidenceadduced would have affected the decision under appeal.

7 The appeal is therefore dismissed.8 Following questions from the panel during the oral hearing, the City

withdrew its request that we make an order under s. 140 of the Courts ofJustice Act, R.S.O. 1990, c. C.43.

9 Costs of the appeal are to the respondent on a partial indemnity scalefixed in the amount of $7,500 inclusive of disbursements and applicabletaxes.

Appeal dismissed.

908118 Alberta Ltd. v. Calgary (City) 227

[Indexed as: 908118 Alberta Ltd. v. Calgary (City)]

908118 Alberta Ltd., Appellant and The City of Calgary andThe Assessment Review Board for the City of Calgary and The

Minister of Justice and Attorney General for Alberta,Respondent

Alberta Court of Queen’s Bench

Docket: Calgary 1101-13982

2015 ABQB 681

C.L. Kenny J.

Heard: June 23, 2015

Judgment: October 27, 2015

Municipal law –––– Municipal tax assessment — Property subject to assess-ment — Real property — Parking lots and garages –––– Property owner op-erated retail clothing store — Owner argued that 2011 municipal property as-sessment wrongfully assessed three parcels of property adjacent to store, whichwere used as parking stalls, at market value rather than at nominal value — As-sessment Review Board concluded that Municipal Government Act and relatedregulations required parcels to be assessed at market value — Appeal by ownerallowed — Board’s decision was not correct or reasonable, nor was it withinrange of possible acceptable outcomes — Board did not take into account city’sland use by-law restrictions and unreasonably concluded that it was precludedfrom considering impact of what it characterized as “contractual or internal op-erational arrangements” — There was no evidence that alternative use was high-est and best value, or that owner elected to underdevelop — Zoning and devel-opment restrictions should be considered when assessing value of fee simpleinterest of land parcel — Operation of retail store came with obligation to pro-vide parking stalls, which were integral and necessary part of retail operation —To ignore restriction attached to permitted use of operating retail store and char-acteristics and physical condition of properties did not lead to reasonable inter-pretation of legislation, by-law, or development permit, and was not withinrange of reasonable outcomes — Board misconstrued definition of “marketvalue” by unreasonably defining it too narrowly, and erred in finding that it wasprecluded from assessing nominal value for parking stalls — Board’s conclusionthat it was precluded from assessing nominal value for properties was unreason-able and incorrect — Board had to consider effect of by-law and developmentpermit in context of this particular case to determine whether legal restrictionscould affect market value of properties — Matter referred back to Board forreconsideration.


Municipal law –––– Municipal tax assessment — Valuation — Method of as-sessment — Market value — Miscellaneous –––– Property owner operated re-tail clothing store — Owner argued that 2011 municipal property assessmentwrongfully assessed three parcels of property adjacent to store, which were usedas parking stalls, at market value rather than at nominal value — AssessmentReview Board concluded that Municipal Government Act and related regula-tions required parcels to be assessed at market value — Appeal by owner al-lowed — Board’s decision was not correct or reasonable, nor was it within rangeof possible acceptable outcomes — Board did not take into account city’s landuse by-law restrictions and unreasonably concluded that it was precluded fromconsidering impact of what it characterized as “contractual or internal opera-tional arrangements” — There was no evidence that alternative use was highestand best value, or that owner elected to underdevelop — Zoning and develop-ment restrictions should be considered when assessing value of fee simple inter-est of land parcel — Operation of retail store came with obligation to provideparking stalls, which were integral and necessary part of retail operation — Toignore restriction attached to permitted use of operating retail store and charac-teristics and physical condition of properties did not lead to reasonable interpre-tation of legislation, by-law, or development permit, and was not within range ofreasonable outcomes — Board misconstrued definition of “market value” by un-reasonably defining it too narrowly, and erred in finding that it was precludedfrom assessing nominal value for parking stalls — Board’s conclusion that itwas precluded from assessing nominal value for properties was unreasonableand incorrect — Board had to consider effect of by-law and development permitin context of this particular case to determine whether legal restrictions couldaffect market value of properties — Matter referred back to Board forreconsideration.

Cases considered by C.L. Kenny J.:

Altus Group Ltd. v. Calgary (City) (2015), 2015 ABCA 86, 2015 CarswellAlta303, 33 M.P.L.R. (5th) 183, 382 D.L.R. (4th) 455, 80 Admin. L.R. (5th) 221,[2015] 6 W.W.R. 109, 12 Alta. L.R. (6th) 217 (Alta. C.A.) — considered

Calgary (City) v. Alberta (Municipal Government Board) (2004), 2004 ABCA10, 2004 CarswellAlta 13, 339 A.R. 393, 312 W.A.C. 393, 2 M.P.L.R. (4th)289, [2004] A.J. No. 5 (Alta. C.A.) — considered

Canada Lands Co. CLC Ltd. v. Alberta (Municipal Government Board) (2006),2006 ABQB 293, 2006 CarswellAlta 516, 43 R.P.R. (4th) 80, 21 M.P.L.R.(4th) 71, 45 Admin. L.R. (4th) 29, 393 A.R. 310, [2006] A.J. No. 463 (Alta.Q.B.) — considered

Edmonton (City) v. Edmonton Composite Assessment Review Board (2012),2012 ABQB 439, [2012] A.J. No. 830 (Alta. Q.B.) — considered

Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. (2015),2015 CarswellAlta 1618, 2015 CarswellAlta 1619, [2015] S.C.C.A. No. 161(S.C.C.) — referred to

908118 Alberta Ltd. v. Calgary (City) 229

Edmonton East (Capilano) Shopping Centres Ltd. v. Edmonton (City) (2015),2015 ABCA 85, 2015 CarswellAlta 324, 382 D.L.R. (4th) 85, 80 Admin.L.R. (5th) 240, [2015] 5 W.W.R. 547, 34 M.P.L.R. (5th) 204, 12 Alta. L.R.(6th) 236 (Alta. C.A.) — followed

GSL Chevrolet Cadillac Ltd. v. Calgary (City) (2013), 2013 ABQB 318, 2013CarswellAlta 976 (Alta. Q.B.) — referred to

Globexx Properties Inc. v. Edmonton (City) (2012), 2012 ABQB 651, 2012CarswellAlta 1796, 550 A.R. 267 (Alta. Q.B.) — distinguished

Halifax (Regional Municipality) v. Canada (Public Works & Government Ser-vices) (2012), 2012 SCC 29, 2012 CarswellNat 1826, 2012 CarswellNat1827, 97 M.P.L.R. (4th) 1, 345 D.L.R. (4th) 577, 17 R.P.R. (5th) 1, 36 Ad-min. L.R. (5th) 1, 431 N.R. 10, [2012] 2 S.C.R. 108, [2012] S.C.J. No. 29(S.C.C.) — considered

Landex Investments Ltd. v. Red Deer (City) (1991), 6 M.P.L.R. (2d) 36, 117A.R. 123, 2 W.A.C. 123, 81 Alta. L.R. (2d) 381, 45 L.C.R. 241, [1991] 6W.W.R. 275, 1991 CarswellAlta 128 (Alta. C.A.) — considered

Montreal (City) v. Sun Life Assurance Co. of Canada (1950), [1950] S.C.R. 220,[1950] 2 D.L.R. 785, 1950 CarswellQue 48 (S.C.C.) — referred to

Montreal (City) v. Sun Life Assurance Co. of Canada (1951), [1952] 2 D.L.R.81, [1951] W.N. 575, 1951 CarswellQue 268, [1951] UKPC 28 (Jud. Com.of Privy Coun.) — referred to

Musqueam Indian Band v. Glass (2000), 2000 SCC 52, [2000] S.C.J. No. 54,2000 CarswellNat 2405, 2000 CarswellNat 2406, [2000] 11 W.W.R. 407, 36R.P.R. (3d) 1, 82 B.C.L.R. (3d) 199, 192 D.L.R. (4th) 385, 261 N.R. 296,186 F.T.R. 248 (note), [2000] 2 S.C.R. 633, [2001] 1 C.N.L.R. 208, REJB2000-20862, [2000] 4 F.C. i, 2000 CSC 52 (S.C.C.) — considered

T. Eaton Co. v. Alberta (Assessment Appeal Board) (1995), 33 Alta. L.R. (3d)349, [1996] 1 W.W.R. 399, 174 A.R. 99, 102 W.A.C. 99, 128 D.L.R. (4th)469, 1995 CarswellAlta 307, [1995] A.J. No. 859 (Alta. C.A.) — followed


Municipal Government Act, R.S.A. 2000, c. M-26Generally — referred tos. 1(1)(n) “market value” — considereds. 285 — referred tos. 289 — considereds. 289(1) — referred tos. 289(2) — considereds. 293(1) — considereds. 293(2) — considereds. 460 — referred tos. 467(1) — considereds. 467(3) — considereds. 470 — pursuant to


s. 470.1(2) [en. 2009, c. 29, s. 28] — referred tos. 645 — considered

Tariffs considered:

Alberta Rules of Court, Alta. Reg. 124/2010Sched. C, Tariff of Costs, column 1 — referred to

Regulations considered:

Municipal Government Act, R.S.A. 2000, c. M-26Matters Relating to Assessment Complaints Regulation, Alta. Reg. 310/2009

s. 8(2) — referred toMatters Relating to Assessment and Taxation Regulation, Alta. Reg.220/2004

Generally — referred tos. 2 — considereds. 3 — referred tos. 4(1) — considered

APPEAL by property owner from decision of Assessment Review Board, up-holding municipal property assessment.

Gilbert J. Ludwig, Q.C., James B. Laycraft, Q.C., for Appellant, 908118 AlbertaLtd.

Shaun Fluker, for Respondent, Assessment Review Board, for the City ofCalgary

Nathan W. Irving, for Respondent, City of Calgary

C.L. Kenny J.:

1. Introduction1 This is an appeal under section 470 of the Municipal Government Act,

RSA 2000, c M-26 (the “MGA”) by the Appellant 908118 Alberta Ltd.(“O’Connors”) from 908118 Alberta Ltd v The City of Calgary, CARB1553/2011-P, a 2011 decision of the Calgary Assessment Review Board(the “CARB”). The CARB upheld the January 2011 property assessmentwhich O’Connors argues wrongfully assessed the three parcels of pro-perty (located at 1401 1 Street SW (“1401”), 1411 1 Street SW (“1411”)and 207 14th Street SW (“207”)) used as parking stalls adjacent to theO’Connors retail store (the “Properties”) at market value as opposed tonominal value. The Respondent City of Calgary (the “City”) argues thatthe appeal should be dismissed. The City submits that the CARB deci-sion is justifiable, intelligible and transparent, and that it should be con-firmed with costs.

908118 Alberta Ltd. v. Calgary (City) C.L. Kenny J. 231

2 On February 13, 2013, I granted the application for leave to appealwith respect to the following two questions of law:

i. Whether the CARB erred in failing to account for the City of Cal-gary, Bylaw 2P80, Land Use Bylaw (the “Bylaw”) restrictions;and

ii. Whether the CARB erred in finding that it was precluded fromassessing a nominal value for the Properties.

3 Interestingly, following the Application for permission to appeal thedecision, the CARB revised the assessments and concluded that a nomi-nal value was appropriate for the 2013 and 2014 assessments: 908118Alberta Ltd v The City of Calgary, CARB 71706P-2013 and CARB74946P-2014.

2. Background4 O’Connors sells men’s and women’s clothing as well as footwear. In

2000, O’Connors applied for a development permit to expand an existingbuilding at 1415 1 Street SW in the “Beltline” area of Calgary, whichwas to become, and now is, the location of this clothing store. The devel-opment permit applied for was pursuant to the Bylaw. It has since beenreplaced by the City of Calgary Bylaw 1P2007, Land Use Bylaw. TheBylaw required “1 parking stall per 46 square meters of net floor areawith no less than 1 parking stall for each individual store or shop” forretail stores in the specified zone: Bylaw, s 18(2) at “Retail Stores” (iv).In the case of O’Connors, it means that 26 parking stalls are required inorder to comply with the Bylaw. The Bylaw also provides that the park-ing stalls needed to be located on the same site as the use requiring it,subject to specific exceptions: Bylaw, s 18(1)(a). As such, the parkingstalls need to be located on the same site as the O’Connors’ clothingstore.

5 The assessment process is an annual process: MGA, s 285. Assess-ments are prepared by the assessor appointed by the municipality: MGA,s 289(1). The assessed person may make a complaint about an assess-ment: MGA, s 460. The complainant, who is to be heard by the CARBregarding a non-residential property assessment, must file its evidenceand any written argument in support of the complaint with the CARBand the City at least 42 days before the hearing date. The City must alsofile its evidence in response with the CARB at least 14 days before thehearing date: Matters Relating to Assessment Complaints Regulation,Alta Reg 310/2009, s 8(2).


6 Historically, the Properties were assessed at a nominal value. Be-tween 2007 and 2010 the average annual assessment was $883 for the1401 parcel and $818 for each of the 1411 and 207 parcels.

7 In 2011, the City assessed the Properties as follows: 1401 was as-sessed at $1,220,000; 1411 was assessed at $781,000; and 207 was as-sessed at $780,000. The City submits that the 2011 assessments werebased upon market value in accordance with the MGA. The CARB up-held the City’s assessment as reasonable.

8 In its 2011 decision, the CARB concluded that the MGA and relatedregulations were clear that a parcel of land is to be assessed at marketvalue, as defined, and that the legislation mandates the appraisal usingmarket value as an estimate of the value of the fee simple estate in theproperty. The CARB ruled that it was precluded from considering thelimitations created by the parking requirements and noted thatO’Connors could have considered leasing a parking structure from athird party as an alternative measure to fulfilling the requirements underthe Bylaw.

3. The CARB’s Decision9 In its decision, the CARB reproduced the applicable sections of both

the MGA and Matters Relating to Assessment and Taxation Regulation,Alta Reg 220/2004 (the “Assessment Regulation”). As noted by theCARB, section 1(1)(n) of the MGA defines market value as follows:

“market value” means the amount that a property, as defined in sec-tion 284(1)(r), might be expected to realize if it is sold on the openmarket by a willing seller to a willing buyer;

10 Section 4(1) of the Assessment Regulation provides that: The valuation standard for a parcel of land is

(a) market value, or

(b) if the parcel is used for farming operations, agricultural usevalue.

11 Section 2 of the Assessment Regulation provides that: An assessment of property based on market value

(a) must be prepared using mass appraisal,

(b) must be an estimate of the value of the fee simple estate in theproperty, and

(c) must reflect typical market conditions for properties similar tothat property.


12 After reviewing the parties’ positions and the applicable legislation,the CARB stated that the legislation is clear and concluded that unless aparcel of land is used for farming operations, it must be assessed at mar-ket value. The CARB also held that because the legislation requires amarket value assessment to be an estimate of the value of the fee simpleestate, it was precluded from considering contractual or internal opera-tional arrangements. The totality of the CARB’s analysis in reaching itsdecision is as follows:

The Board finds the legislation is clear that a parcel of land is to beassessed at market value unless it is used for farming operations.With respect to the criteria for applying a “nominal parking rate” setout in CARB 2242/2010-P, this Board could not find any provisionin the Act or the related regulations that gives the assessor authorityto prepare an assessment of a parcel of land not used for farmingoperations, at a value other than market value.

With respect to the correct market value of the subject properties,there was no market evidence before the Board to refute the $195.00per sq.ft. base rate, or the +5% corner lot adjustment applied by theassessor. The Board therefore accepts that these rates reflect typicalmarket value for the subject properties.

Further, the legislated requirement that an assessment of propertybased on market value must be an estimate of the value of the feesimple estate, precludes the Board from considering the impact ofcontractual, or in this instance, internal operational arrangements.The Board also notes that the parking requirements set out by Bylaw2P80 do not specify that parking areas must be owned; the require-ments may be fulfilled by leasing a parcel (or a parking structure)from a third party, which would also be subject to assessment at mar-ket value.

4. Positions of the Parties

A. O’Connors13 O’Connors submits that its retail premises drives the use to which the

subject parcels are legally put. O’Connors says that without the parking,the retail premises would not conform with the Bylaw. It submits that thevalue of the parking lots is subsumed in the assessment of the retail pro-perty. O’Connors argues that the CARB erred when it concluded thatmarket value could not in fact amount to nominal value. O’Connors addsthat the City’s assessments of 2007 to 2010 were in front of the CARB,as well as assessments of other properties that were not subject to the


same restrictions as that of a retail development. As a result, the CARBcannot say that there was no evidence of value before it. O’Connors sub-mits that the CARB erred in law, that the decision should be quashed andremitted to the CARB in accordance with the direction of this Court.O’Connors noted that in Edmonton East (Capilano) Shopping CentresLtd. v. Edmonton (City), 2015 ABCA 85 (Alta. C.A.), leave to appeal toSCC granted, [2015] S.C.C.A. No. 161 (S.C.C.), (“Capilano”) our Courtof Appeal stated that the correctness standard applied. O’Connors saysthat in every case there needs to be a contextual analysis. O’Connorsdistinguished Capilano which related to a jurisdictional issue (as charac-terized by the ACJ) and therefore in that case the standard of correctnesswas appropriate. In this case however, O’Connors submits that no matterwhat standard of review is applicable, reasonableness or correctness, theCARB decision would not survive either standard.

14 O’Connors submits that the costs award should not be based on Col-umn 1 given the history of the case. O’Connors seeks solicitor-clientcosts, but adds that this issue will be argued at a later time.

B. City of Calgary15 The City argues that in its decision, the CARB identified the correct

valuation standard for the assessments at market value, cited the correctlegislative provisions, and clearly explained why O’Connors had not sat-isfied the CARB that the assessments should be reduced to nominalvalues.

16 The City also submits that the reasonableness standard is applicable,but in any event, the decision is correct. The City says that the decision isjustifiable, intelligible and transparent. It argues that the appeal should bedismissed and the CARB decision confirmed with costs.

17 The City argues that O’Connors’ grounds of appeal are based on aflawed understanding of basic assessment principles. The City viewsO’Connors’ position as inconsistent with the case law.

18 The City acknowledges that for several years the properties were as-sessed at nominal value. It then assessed the properties at market valuefor the 2011 taxation year, which it says was consistent with other vacantcommercial parcels in the Beltline area.

19 The City submits that this case raises an issue of fairness. The Cityargues that there is no reason why O’Connors should pay less than otherlandowners in Calgary. The City says that O’Connors chose to open aretail store which requires parking. For instance, O’Connors could, if it


decided to, sell the land to build a high rise. The City adds that a propertymust be assessed on market value and this assessment should not be de-pendent on its current use or value to a particular owner, but should bebased on its highest and best use. Moreover, the City argues that no mar-ket evidence was presented by O’Connors to show that the assessed mar-ket value is incorrect.

20 Generally, with respect to costs, the City submits that there is noabuse of process. The City says that it should not be penalized for pro-ceeding on the merits and having the issue decided. It also reminds theCourt that the City is the respondent in this case and the rule in staredecisis does not apply to the CARB.

C. The CARB21 The CARB reminds the Court that considering the large volume of

cases that it deals with, together with the strict legislated timelines forhearing submissions and rendering its decisions, means a CARB panelmust rely heavily on the submissions and evidence placed before it bythe taxpayer and the City. It argues that some of the legal argumentspresented at this level of Court were not placed before the CARB andthat it could not commit an error in law for failing to consider an argu-ment that was not placed before it.

22 The CARB submits that the standard of review is reasonableness. Itacknowledges that in Capilano, in concluding that the standard of cor-rectness applied, the Court of Appeal did not restrict its reasoning onstandard of review to true questions of jurisdiction. However, the CARBargues that Capilano should be read as affirming the chambers justice’sruling that the question before the Edmonton Assessment Review Boardwas a true question of jurisdiction and thus within the established list ofexceptions to the presumption for which the standard of review is cor-rectness. The CARB submits that the issues before this Court in this casefall squarely within the specialization of the CARB under the MGAwhich provides:

467 (1) An assessment review board may, with respect to any matterreferred to in section 460(5), make a change to an assessment roll ortax roll or decide that no change is required.

[...]

(3) An assessment review board must not alter any assessment that isfair and equitable, taking into consideration

(a) the valuation and other standards set out in the regulations,


(b) the procedures set out in the regulations, and

(c) the assessments of similar property or businesses in the samemunicipality.

[...]

23 As a result, the CARB submits that the applicable standard isreasonableness.

5. Issues24 As previously mentioned, the two grounds for which leave to appeal

was granted are as follows:

i. Whether the CARB erred in failing to account for the Bylaw re-strictions; and

ii. Whether the CARB erred in finding that it was precluded fromassessing a nominal value for the Properties.

6. Standard of Review25 Until recently, it appeared to be settled law that the applicable stan-

dard of review regarding the CARB’s decisions interpreting the MGAwas reasonableness. However, the Court of Appeal in Capilano con-cluded in broad terms that the correctness standard was the applicablestandard when interpreting provisions of the MGA. The Court of Appealacknowledged Capilano in Altus Group Ltd. v. Calgary (City), 2015ABCA 86 (Alta. C.A.), but left the issue open with respect to the inter-pretation of a municipal bylaw as opposed to a provincial statute(para.11).

26 In this case, for the reasons that follow I would grant the appeal eitheron the correctness or reasonableness standard. As I will explain in thefollowing paragraphs, the CARB decision is not correct or reasonable,nor is it within the range of possible acceptable outcomes.

7. Analysis

A. Whether the CARB erred in failing to account for the Bylawrestrictions

27 The issue here is whether the CARB’s decision is reasonable or cor-rect when it did not take into account the restrictions and concluded thatit was precluded from considering the impact of what the CARB charac-terized as “contractual or internal operational arrangements.” The CARB


also observed that O’Connors was not required to own the parking areasbut could lease a parcel or parking structure.

28 O’Connors says that the Bylaw and the development permit imposethe restrictions. The development permit is restricted to the location itselfand affects the market value. The legal use that can be made of the landneeds to be taken into account as a component of its valuation.O’Connors says that it is a component of the fee simple obligation.O’Connors claims the CARB committed an essential error in characteriz-ing the restrictions as internal operational arrangements as if it weresolely O’Connors’ choice. O’Connors argues that the Bylaw is not achoice and adds that the fact that a choice exists regarding the develop-ment of the site does not take away the obligations with respect to the useof the land. For instance, s 645 of the MGA provides that the develop-ment authority can impose on the owner or against the property a seriesof measures in cases of non-compliance.

29 The City argues that although the current parking requirements mayimpact O’Connors’ operation, it does not necessarily affect the marketvalue of its parcels.

30 The City’s understanding of O’Connors’ position is that it cannot selltheir parcels because the Bylaw and the development permit itself re-quires O’Connors to provide parking for their retail store and that it can-not sell the properties because they are necessary to operate the retailstore. The City says that one must be reminded that the parking require-ments in the Bylaw and development permit are tied to the existing useof the properties that are owned and operated by O’Connors.

31 The City notes that Bylaw 2P80 specified minimum requirements fora variety of uses, including parking. The City also notes that the proper-ties were not exclusively zoned for retail and parking. The City arguesthat in this case, O’Connors chose to use the adjacent property for a retailuse, thus it is required to provide a minimum of parking stalls for thatretail use. The City submits that the so-called restriction is just a require-ment to provide parking for a particular use of the land.

32 The City submits that property should be assessed yearly with respectto the highest and best use. The City refers to Canada Lands Co. CLCLtd. v. Alberta (Municipal Government Board), 2006 ABQB 293 (Alta.Q.B.) at para 72, as an example where vacant land is assessed at thehighest and best use.


33 The MGA provides “[a]ssessments for all property in a municipality,other than linear property, must be prepared by the assessor appointed bythe municipality”: MGA, s 289. The MGA specifies at s 289(2) that:

Each assessment must reflect

(a) the characteristics and physical condition of the property onDecember 31 of the year prior to the year in which a tax isimposed under Part 10 in respect of the property, and

(b) the valuation and other standards set out in the regulations forthat property.

34 The duties of the assessor include the obligation to apply the valua-tion and other standards, and follow the procedures set out in the regula-tions. The MGA provides as follows:

293 (1) In preparing an assessment, the assessor must, in a fair andequitable manner,

(a) apply the valuation and other standards set out in the regula-tions, and

(b) follow the procedures set out in the regulations.

(2) If there are no procedures set out in the regulations for preparingassessments, the assessor must take into consideration assessments ofsimilar property in the same municipality in which the property thatis being assessed is located.

[...]

35 The valuation standard is defined in the Assessment Regulation as“market value” or agricultural use value where the parcel is used forfarming operations. Market value is defined under section 1(1)(n) of theMGA (referred to above at para 9).

36 As stated above, the CARB must not alter any assessment that is fairand equitable taking into consideration 1) the valuation and other stan-dards set out in the regulations, 2) the procedures set out in the regula-tions and 3) the assessments of similar property or businesses in the samemunicipality: MGA, s s 467(3).

37 “Market value” is also defined as follows in The Appraisal of RealEstate, Third Canadian Edition (Vancouver, BC: Appraisal institute ofCanada, 2010) at 2.8-2.9 (text referred to by both O’Connors and theCity):

This definition [of market value] represents the concept of value inexchange, a concept made explicit in the market value definition de-veloped by the International Valuation Standards Committee (IVSC)


and used in the International Valuation Standards. These standardsdefine market value as:

[T]he estimated amount for which a property should ex-change on the date of valuation between a willing buyerand a willing seller in an arm’s-length transaction afterproper marketing wherein the parties had each actedknowledgeably, prudently and without compulsion.

The general valuation concepts and principles guiding the Interna-tional Valuation Standards reiterate the concept that market value“reflects the collective perceptions and actions of a market”, not the“preconceived view or vested interest of a particular individual”. Themarket value basis of valuation of the International Valuation Stan-dards is consistent with other discussions of the market value in pro-fessional standards.

38 Comparatively, the text defines “use value” at 2.12 as follows: Use value is the value a specific property has for a specific use. Inestimating use value, the appraiser focuses on the value the real es-tate contributes to the enterprise of which it is a part, without regardto the highest and best use of the property or the monetary amountthat might be realized from its sale.

39 The City relies on case law which confirms that market value in thecontext of an assessment means value in exchange: Montreal (City) v.Sun Life Assurance Co. of Canada, [1950] S.C.R. 220 (S.C.C.) at 229 perKerwin J., aff’d [1951] UKPC 28 (Jud. Com. of Privy Coun.). More re-cently in Musqueam Indian Band v. Glass, 2000 SCC 52 (S.C.C.) at para38 (per Gonthier J) also refers to the definition of “market value” as fol-lows:

[38] Market value generally is the exchange value of land, rather thanits use value to the lessee. This distinction was articulated in Bul-lock’s, Inc. v. Security-First National Bank of Los Angeles, 325 P.2d185 (Cal. Dist. Ct. App. 1958), at p. 188, where the lease “calls for adetermination of the value of the land, not the value of the use of theland for any particular purpose”. Land is valued without regard to thetenant’s interest in it, for it does not reduce the land’s exchange valueif the tenant chooses not to use the land for its highest use. This casehas been cited in Canada (e.g., Revenue Properties, supra) and theprinciple is part of Canadian law. It was applied in Gulf Oil CanadaLtd. v. National Harbours Board, F.C.T.D., No. T-1478-71, Septem-ber 15, 1972, at p. 19, which was followed in Burrard Dry Dock Co.v. Canada, [1974] F.C.J. No. 417 (QL) (T.D.), at para. 9. Most re-cently, in No. 100 Sail View Ventures Ltd. v. Janwest Equities Ltd.


(1993), 84 B.C.L.R. (2d) 273, leave to appeal refused [1994] 2S.C.R. viii, the majority of the British Columbia Court of Appealheld at p. 281 that the specific terms of a lease were not relevantwhen determining “fair market value of the Leased Premises as bareland” ... for a rent review.

40 The City submits that in light of the legislation and case law, there isno doubt that the market value is the value in exchange not the use valueor existing use.

41 I note that, in this case, O’Connors does not challenge the concept ofmarket value per se, rather it argues that the CARB’s assessment of mar-ket value was unreasonable or incorrect. O’Connors’ position is that therestrictions in this case need be taken into account when assessing themarket value.

42 The Appraisal of Real Estate states at 6.1 that, “[t]he most completeform of ownership is the fee simple interest i.e., absolute ownershipunencumbered by any other interest or estate, subject only to the limita-tions imposed by the four powers of government taxation, expropriation,police power, and escheat. At 6.13 “police power” is defined as follows:

Police power is the right of the government through which propertyis regulated to protect public safety, health, morals, and general wel-fare. Examples of police power include zoning ordinances, use re-strictions, building codes, air and land traffic regulations, publichealth codes, and environmental regulations.

[Emphasis added]

43 O’Connors submits that if market value is an estimate of the fee sim-ple interest in the land and the fee simple interest can be limited by po-lice powers such as zoning and use restrictions, these restrictions must beconsidered when assessing market value.

44 Interestingly, albeit in a very different context than that of this case,both the majority and minority of the Court in Musqueam Indian Bandaddressed the effect of restrictions on market value. McLachlin CJ wrotethe following with respect to what should be characterized as legal re-strictions:

[14] The rationale for placing weight on the fact that the Band haschosen not to sell the land is said to be that fair market value “mustreflect the legal restrictions on the land” (Gonthier J., at para. 46).However, the fact that land is part of a reserve is not a legal restric-tion within the ambit of this principle. This principle is properly ap-plied to such restrictions as zoning laws, building codes, historicaldistrict or other non-zoning land-use controls, and environmental


regulations. See Revenue Properties, supra; see also Appraisal Insti-tute of Canada, The Appraisal of Real Estate (Canadian ed. 1999), atp. 270. Adjusting fair market value to account for such restrictionsmakes sense, because usually a landowner has little or no controlover them, and clearly a buyer is not going to pay the going rate forcommercial land if the land is zoned only for residential use. By con-trast, nothing stops the Band from surrendering the land to the Crownand selling the land just like any other freehold is sold, except theleases themselves, whose restrictions must be disregarded in deter-mining “current land value”. The reserve character of the land istherefore not a legal restriction. As for the argument that determiningfair market value by valuing freehold title to the land is circular, theinquiry is essentially: what else could be done with the land? That isthe same question that is asked in any appraisal, and it is not circular.See Appraisal Institute of Canada, supra, at p. 269, which states thatappraising land requires consideration of “all potential uses”.

45 Similarly, Gonthier J. wrote the following: [47] Legal restrictions on land use, as opposed to restrictions foundin the lease, may affect the market value of freehold property. In Rev-enue Properties, supra, at p. 182, the court held that “[a]ll applicablestatutes and laws relating to use such as zoning by-laws must be con-sidered” when assessing land value. All three appraisers in the case atbar considered legal restrictions on land use, chiefly zoning, in theirreports. This is consistent with professional appraisal practice in Can-ada. To determine land value, whether as vacant or as improved, theappraiser (unless otherwise instructed by the lease) considers thehighest and best use that is “legally permissible, physically possible,financially feasible, and maximally productive”. Legal impedimentsinclude “[p]rivate restrictions, zoning, building codes, historic districtor other non-zoning land use controls, and environmental regula-tions” (Appraisal Institute of Canada, The Appraisal of Real Estate(Canadian ed. 1999), at p. 270).

[48] The legal restrictions on land use imposed by a band on its landare analogous to land laws imposed by a municipal government. Asthe Federal Court of Appeal held in The Queen v. Guerin, [1983] 2F.C. 656, at p. 719, which happened to concern the Musqueam Band,the Indian Act, R.S.C., 1985, c. I-5, “confers on the Minister, theGovernor in Council, and the band council certain powers of a localgovernment nature for the management of the reserve”. Subject tothe Indian Act, the band council has some legislative powers to enactits own laws. Under s. 83, for example, this Band has enacted theMusqueam Indian Band Assessment By-Law and the Musqueam In-dian Band Taxation By-Law. The decision about whether to surren-


der reserve land for leasing or for sale is a formal decision made bythe Band under ss. 37-39 of the Indian Act. The decision derivesfrom legislative power, and is not analogous to restrictions on landcontained in a lease, which are based on contract. The legal environ-ment on a reserve should therefore be taken into account when ap-praising the land’s value. Of course, like municipal zoning, band re-strictions could either increase or decrease land value depending onhow the market responds to them. In Devil’s Gap Cottages, supra,Strayer J. (as he then was) noted that favourable zoning on that re-serve increased its value dramatically over non-reserve land.

46 In T. Eaton Co. v. Alberta (Assessment Appeal Board) (1995), 174A.R. 99 (Alta. C.A.), O’Leary JA writing for the Court addressed theeffect of a restriction on the market value of land. In that case, the landwas acquired in contemplation of developing a large retail shopping pro-ject. As a part of the development, T Eaton Co (“Eatons”) accepted theimposition of certain restrictions, which were not present when the landwas purchased. The restrictions arose as a part of a negotiated redevelop-ment scheme under which the land became subject to height, density, anduse restrictions incorporated in a development agreement betweenEatons, the City and the developer, and contained in a bylaw. The landwas subsequently assessed based upon the price paid when the land wasacquired, with the assessor finding that the development restrictions didnot lower the land’s value for assessment purposes.

47 In allowing the appeal, the Court held that: [4] [...] The question before the Board was whether the market valueof the land was adversely affected by the development limitationsattached following its acquisition. Although the Board professed toanswer that question, it in fact looked only at the impact of the re-strictions on the special value of the property to Eatons. That was anerror of law which is, in my view, sufficient to justify interferingwith the decision.

48 In finding that the Board erred, O’Leary JA held, at para 23, that“[t]he presence of development and use limitations contained in a By-lawor in an agreement with the municipal authority may affect the marketvalue of land relative to comparable land not so restricted.” In so finding,the Court held that the question facing the Board was whether the restric-tions reduced market value.

49 Justice O’Leary also found, at para 35, that the Board was correct insaying that the election of an owner to underuse his land does not detractfrom its market value as land. He added that “[h]ad the development re-


strictions not been attached, Eaton’s election to under-develop the sitewould not be a basis for finding a decrease in market value”.

50 I agree with O’Connors that in this case there is no evidence that an-other alternative use is the highest and best value, or that O’Connorselected to under develop.

51 In T Eaton, O’Leary JA characterized the Board’s error as one of law.He found that the Board erred when it failed to answer the question ofwhether the market value of the land was adversely affected by a devel-opmental limitation:

[37] The foregoing extracts from the Board’s reasons demonstrateclearly that the Board, while purporting to assess the market value ofthe land, in fact based its assessment on its special and subjectivevalue to Eatons. This was, in my view, a significant error of law. TheBoard considered the effect of the restrictions on the value of theland to Eatons; it did not assess their impact on market value as itwas required to do. This error is sufficient to justify allowing the ap-peal and quashing the Board’s decision.

52 The City submits that there is a difference between a true restrictionas in the T Eaton case as opposed to this case. In T Eaton, there was atrue restriction on title with respect to the height of property. In this case,there is more than one use permitted. The City adds that in light of TEaton one cannot consider the impact of the use restrictions on the sub-jective or special value to the current owner: paras 27 and 40.

53 In T Eaton, O’Leary JA was clear that development limitations are afactor to be taken into account when determining the market value ofland: at para 39. He added that “[s]peculation that such restrictions maybe relaxed in the future is irrelevant [...] unless there is evidence of areasonable expectation amounting to a probability [...]”

54 In light of the above, it appears that zoning and development restric-tions should be considered when assessing the value of fee simple inter-est of a land parcel. The CARB’s decision was unreasonable when itconcluded that it was precluded “from considering the impact of contrac-tual, or in this instance, internal operational arrangements.” O’Connors isoperating a retail store, which is a permitted use. The operation of a retailstore comes with the obligation to provide parking stalls. I agree that theparking stalls need not be owned by O’Connors, but in this case they areowned by O’Connors. They are an integral part of the retail operationand are necessary in order to operate the retail store. To ignore the re-quirement or restriction attached to the permitted use of operating a retail


store and to ignore the characteristics and physical condition of theproperties when assessing the Properties does not lead to a reasonableinterpretation of the legislation, Bylaw or the development permit. Thisis not within the range of reasonable outcomes.

B. Whether the CARB erred in finding that it was precluded fromassessing a nominal value for the Properties

55 O’Connors says that the CARB erred in holding that only farmingoperations may be assessed at nominal value. O’Connors argues that, infact, the CARB excluded the possibility of market value amounting tonominal value. It submits that the case law shows that if a property isrestricted it could be assessed at market value and carry a nominal value.For instance, in Calgary (City) v. Alberta (Municipal GovernmentBoard), 2004 ABCA 10 (Alta. C.A.) (“Carma”), the Board had con-cluded that certain ravine lands, which would revert to the City uponsubdivision of nearby property, could not be assessed using the marketvalue of nearby property. The Court of Appeal held as follows:

[12] Under the statute, and its regulations, property assessments aremade on the basis of market value. Market value is determined byreferring to recent market conditions concerning similarly situatedparcels of land. Here, for purposes of comparison, the City chose torely on property which drew its value from its capacity for futuresub-division. It concluded the 14.13 acres of developable propertywas worth $50,000 per acre.

[13] The properties used by the City for comparison were propertiesthat could be sub-divided and developed. This accounts for the highmarket value of the Tuscany lands. Having assessed acres at an en-hanced value because of the ability to sub-divide, however, the Cityhad to be prepared for the logical aftermath. If the high market valueof the 14.13 acres was derived from the assumption that the landwould be sub-divided, the remaining land had to be assessed in ac-cordance with the negative aspects of that assumption, namely, thatthe reserve lands would pass to the City once the property was sub-divided at no cost to the City. Thus, the ravine lands had no market.What willing buyer would pay anything for land designated to betransferred to the City of Calgary at $0.00?

56 O’Connors says that what needs to be assessed are the characteristicsand physical condition of the Properties on December 31 of the previousyear (MGA, s 289) and market value on July 1 of the assessment year(Assessment Regulation, s 3). O’Connors adds that even if redevelop-


ment could happen, the likelihood of it happening has to be real beforeassessing in accordance with that possibility.

57 The City submits that the CARB was correct in denying O’Connors’request for nominal assessment of the parcels. The City submits that, inits decision, the CARB distinguished between market value and arbitrarynominal value and it did not hold that market value could never be as-sessed at nominal value in the right circumstances. In fact, the City doesnot dispute the fact that there are situations where a property is so re-stricted that no buyer would pay anything and that the value in exchangewould be nil. It adds that in this case, however, the “legal restriction” isonly related to an existing use and has no impact on the Properties mar-ket value. Thus, a discussion with respect to nominal value was not war-ranted. They also argue that in any event, the onus was on O’Connors toshow that the market value of the Properties was reduced to zero and thatit did not present market evidence to meet its burden: see for exampleGSL Chevrolet Cadillac Ltd. v Calgary Assessment Review Board (28January 2013), Calgary 1101-12927 (ABQB); GSL Chevrolet CadillacLtd. v. Calgary (City), 2013 ABQB 318 (Alta. Q.B.) at paras 31-33; seealso Landex Investments Ltd. v. Red Deer (City) (1991), 117 A.R. 123(Alta. C.A.) at paras 5 and 40 where extensive expert evidence was led.

58 I disagree with the City’s interpretation of the CARB’s decision. I donot read it as acknowledging that the MGA contemplates a nominal valuein instances where the market value has been shown to be negligible. Nosuch analysis was undertaken. Rather, the CARB found that with respectto applying a “nominal parking rate” that “this Board could not find anyprovision in the Act or the related regulations that gives the assessor au-thority to prepare an assessment of a parcel of land not used for farmingoperations, at a value other than market value.” The CARB misconstruedthe definition of “market value” by unreasonably defining it toonarrowly.

59 In Edmonton (City) v. Edmonton Composite Assessment ReviewBoard, 2012 ABQB 439 (Alta. Q.B.) at para 32 (“Mediplex”), the Courtstated that the CARB had made a ruling not of market value but of nomi-nal value and that it was not entitled to do so. As I already mentioned inthe decision for leave to appeal, Mediplex deals with the ability to assesslands at a nominal value, it does not address the situation before thisCourt. Namely, the case is silent as to whether a legal restriction canaffect market value in a manner essentially reducing market value to anominal amount.


60 O’Connors says that case law is clear that restrictions should be takeninto account and restrictions could lead to assessment at nominal value.

61 O’Connors says that the parcels cannot be sold in order to keep oper-ating the retail store. The City argues that O’Connors is looking at thewrong definition of market value because they are an unwilling sellerand that the definition of market value requires a willing seller. The Citysubmits that the fact that O’Connors does not want to sell the parcelsbecause it wishes to continue operating a retail store does mean that theparcels have no value.

62 In Halifax (Regional Municipality) v. Canada (Public Works &Government Services), 2012 SCC 29 (S.C.C.), at issue was a propertythat was constitutionally exempt from municipal and provincial taxation,albeit in a different context. The Minister decided that the national his-toric site of 42 acres was effectively valueless. Cromwell J. writing forthe Court found that the Minister’s approach was unreasonable. Crom-well J. wrote the following:

[57] The Minister’s position is also, in my view, at odds with thebroader policy of the Act, which is to treat municipalities fairly. Itcan hardly be thought either fair or equitable to conclude that 42acres in the middle of a major metropolitan centre has no value forassessment purposes. While admittedly applying market value as-sessment principles to an historic site is a challenging enterprise, theconclusion that an historic site has no value because it cannot be de-veloped or used in an economically productive way is “out of sync”with the equitable purpose of the PILT [refers to a regime of discre-tionary payments in lieu of taxes] scheme. Of course, the presence ofan historic site doubtless has spin-off benefits for the community inwhich it is located. But the Act is directed to fair and equitable PILTswith reference to what taxes would be payable if the site were taxa-ble. The Minister’s approach in my view unreasonably departs fromthat purpose.

63 In the case at bar, the City recognizes that nominal value was givenfrom 2007 to 2010, but the City says that it should not be required tocontinue as such since their position is that it needed to be rectified inorder to assess in a fair and equitable way. The City relies on GlobexxProperties Inc. v. Edmonton (City), 2012 ABQB 651 (Alta. Q.B.), wherethis Court found that, in a mass appraisal system, there is no requirementfor a prior-year starting point: paras 23-27. The City argues that, in anyevent, what is at stake is the CARB’s decision and whether it wasreasonable.


64 Globexx Properties Inc. can be distinguished on the facts. In my opin-ion, this decision holds that the dollar value of a prior year’s assessment(as derived from a valuation scheme based on comparables and othermarket value utilized by the City) is not the starting dollar value for nextyear’s assessment. That is, last year’s numbers do not dictate a startingpoint for the current year’s assessment value. In addition, I add in pass-ing that I also do not read Globexx as stating that a complete change inpolicy as to how a property is going to be assessed need not be taken intoaccount; a distinction may be drawn between methodology of valuationand dollar amount.

65 In light of the above I find that the CARB’s conclusion that it wasprecluded from assessing a nominal value for the Properties to be unrea-sonable and incorrect. It is clear that legal restrictions can affect the mar-ket value of properties. In some cases it may mean that market value of aproperty will amount to a nominal amount. The CARB needs to considerthe effect of the Bylaw and development permit in the context of thisparticular case.

8. Conclusion66 In this case, I must note that the CARB did not have the benefit of the

extensive case law review and argument which were present in this ap-peal. Similarly, I note that in 2013 and 2014 the submissions madebefore the CARB appear to be quite different and more extensive than inthis case. For the above reasons, I grant the appeal, and as per s 470.1(2)of the MGA, I direct that the CARB decision CARB 1153/2011-P bequashed, and refer the matter back to the CARB to be reheard and con-sidered along with the Bylaw and development permit restrictions on themarket value of the property and consider, in light of this direction, thatnominal value can meet the market value standard in such circumstanceswhere property is restricted.

67 The parties have presented some brief submissions on costs, but theywere clear that further submissions may be necessary. As a result, theparties may return to speak to the matter of costs if necessary.

Appeal allowed.


[Indexed as: Moyer v. Corman Park (Rural Municipality)No. 344]

Edward Moyer and Debbie Ann Moyer, Plaintiffs and RuralMunicipality of Corman Park No. 344, Defendant

Saskatchewan Court of Queen’s Bench

Docket: Saskatoon QBG 900/15

2015 SKQB 281

Richard W. Danyliuk J.


Administrative law –––– Prerequisites to judicial review — No other ave-nues of relief –––– Rural municipality ordered applicant property owners toclean up their property — On applicants’ appeal, deadline for clean up was ex-tended by council of municipality — Applicants did not appeal that decision —Applicants did not clean up property — Municipality took position that it wouldhire contractors to complete clean-up work — Applicant’s request for furtherextension of deadline was denied — Applicants applied for judicial review ofcouncil’s decision modifying order — Application dismissed — Applicants fol-lowed but did not complete legislative scheme under Municipalities Act — Ap-plicants’ allegations of bad faith, unauthorized purpose, and consideration of ir-relevant matters by council should have been raised on statutory appeal insteadof in this application coming one year after council’s decision was made — Ap-plicants had adequate alternate remedy, in form of statutory appeal of council’sorder — Application for judicial review was not properly before court.

Cases considered by Richard W. Danyliuk J.:

Arch Transco Ltd. v. Regina (City) (2002), 2002 SKCA 126, 2002 CarswellSask749, 227 Sask. R. 139, 287 W.A.C. 139, 35 M.P.L.R. (3d) 99, [2002] S.J.No. 637 (Sask. C.A.) — distinguished

Bayne (Rural Municipality No. 371) v. Saskatchewan Water Corp. (1990), 46Admin. L.R. 23, 90 Sask. R. 102, 1990 CarswellSask 401 (Sask. C.A.) —considered

Borowski v. Stefanson (2015), 2015 SKCA 70, 2015 CarswellSask 341, 37M.P.L.R. (5th) 187 (Sask. C.A.) — distinguished

Canadian Pacific Ltd. v. Matsqui Indian Band (1995), 26 Admin. L.R. (2d) 1,(sub nom. Matsqui Indian Band v. Canadian Pacific Ltd.) [1995] 2 C.N.L.R.92, 122 D.L.R. (4th) 129, 85 F.T.R. 79 (note), [1995] 1 S.C.R. 3, 177 N.R.325, 1995 CarswellNat 264, 1995 CarswellNat 700, [1995] S.C.J. No. 1(S.C.C.) — referred to

Moyer v. Corman Park (Rural Municipality) No. 344 Danyliuk J. 249

Huerto v. Saskatchewan (Minister of Health) (1995), 25 Admin. L.R. (2d) 310n,128 Sask. R. 208, 85 W.A.C. 208, 1995 CarswellSask 736 (Sask. C.A.) —considered

McCarty v. College of Psychologists (Saskatchewan) (2011), 2011 SKQB 471,2011 CarswellSask 895, [2011] S.J. No. 814, 391 Sask. R. 105 (Sask.Q.B.) — referred to

Young v. Regina (City) Police Service (1999), 1999 CarswellSask 165, (subnom. Young v. Chief of Police of Regina Police Service) 176 Sask. R. 115(Sask. Q.B.) — considered

71147 Manitoba Corp. v. Humboldt (Town) (1989), 47 M.P.L.R. 36, 1989 Car-swellSask 121, 80 Sask. R. 294 (Sask. Q.B.) — followed


Municipalities Act, S.S. 2005, c. M-36.1Generally — referred toss. 362-366 — considereds. 364 — considereds. 365(1) — considereds. 365(3)(a) — considereds. 365(4) — considered

APPLICATION for judicial review of decision by council of rural municipality,modifying town’s order requiring applicants to clean up their property.

Heather Knogler, for PlaintiffsScott R. Spencer, for Defendant

Richard W. Danyliuk J.:

Introduction1 The plaintiffs are residents of the defendant rural municipality [RM].

There is a history of the RM wanting the plaintiffs to clean up the subjectland. Various proceedings were taken in this regard. Most recently theRM issued an order with a deadline to complete the cleanup work. Thatdeadline was extended by the RM’s Council on an appeal by the plain-tiffs. The plaintiffs did not exercise the statutory appeal of that decision,but waited almost a year before bringing this application for judicial re-view of Council’s decision. This application was only launched when theRM said it would do the work itself.

2 Counsel on this matter agreed that at this point, I am only to deter-mine the threshold matter of whether the plaintiffs’ failure to exercisethis statutory right of appeal is an adequate alternate remedy, such that


judicial review is not available to the plaintiffs. I am requested not todelve into the merits of this application at this time.

3 For the reasons set out below I have determined that the plaintiffs hadan adequate alternate remedy, the failure to pursue same constitutes a barto judicial review, and therefore this application ought to be dismissed. Ihave also made note of other procedural issues with this application.

Facts4 The material discloses that the Moyer family has occupied the subject

property within the RM for a long time. The concern over the state ofrepair of the property, and the items stored on the property, is also oflong standing.

5 The male plaintiff avers he worked in the movie industry as a propsperson. As a result he has collected a great many items to use, he says, asmovie props. He stores these on the subject land. He also has assembledbuilding material, which is to be used for home renovations and a work-shop expansion. He says he sustained injuries and has worked in the in-dustry substantially less since 2007. Photographs are exhibited to his af-fidavit. There was, and is, a lot of stuff on this property.

6 In 2011 an RM official advised the plaintiffs the state of the propertywas in violation of the RM’s bylaws. They were told to get pallets, stackthe building material in an orderly fashion, and remove all the old vehi-cles (about 90) from the property. From that time until 2013 the plaintiffsexpended some effort to comply with this direction, although it is clearfrom the material that the cleanup was proceeding relatively slowly.

7 Matters then changed. In the summer of 2014 an RM bylaw inspectorinspected the property. He did so under the RM’s The Abatement of Nui-sances Bylaw 26/13. An Order to Remedy Contravention was issued July2, 2014. The order provided that all building items and other materials bestored appropriately or removed, and that the number of junked vehiclesbe reduced to six. The compliance date was set at September 1, 2014.

8 The order to remedy attached over 50 photographs taken of theMoyer property. They are helpful in understanding the RM’s concerns.The yard is full of a number of items. There is wood and metal, somelooking like scrap but all treated by the Moyers as “building materials”.As well, much of what is described as movie props might be regarded aswhat in my youth we called “junk”. This includes rusted old wheels, oldwheelbarrows, junked appliances, old bricks, garden tools, commercialsignage, severed tree trunks, restaurant tables, scrapped plumbing pipe,


tanks and barrels, and items whose identity and provenance is too diffi-cult to discern.

9 And vehicles. Oh, the vehicles! New, old, and in-between. There arelarge trucks, tow trucks, half-ton trucks, panel trucks, and flatbed trucks.There are trailers of many descriptions. There are tractors and otherequipment. Numerous boats can be seen. There are cars of nearly everydescription and vintage. There are snowmobiles, vans and recreationalvehicles. A grader sits between a half-ton truck and a Volvo sedan.

10 All of these items are spread across the property with no pattern thatcan be ascertained. Without adjudicating this matter on the merits, it is atleast possible to understand why the RM was concerned.

11 I also note at this point that this Order to Remedy Contravention wasissued to Debbie Ann Moyer. The appeal from same bears both Edwardand Debbie Ann Moyer’s names at one point, and only hers as appellantat another. The response and subsequent correspondence was addressedto Debbie Ann Moyer. As a result, an issue of standing arose when thismatter was on reserve. As this issue goes to jurisdiction, I notified coun-sel of same and gave them an opportunity to address the court on thematter. This jurisdictional issue was remedied through consent of counselwherein Debbie Ann Moyer is added as an applicant to this applicationas if she was a party from the inception of this proceeding.

12 Under s. 365(1) of The Municipalities Act, SS 2005, c M-36.1, anappeal to the RM Council was available. Such an appeal was launched. Itdid not seek to overturn the order to remedy; rather, it was a request formore time for compliance. At its July 21, 2014 meeting Council allowedthe appeal and granted an extension for completion of the work to March31, 2015.

13 No one took any action to appeal Council’s decision, or to seek judi-cial review of same.

14 On May 20, 2015 RM officials conducted another inspection of theproperty. Their view was that the property’s condition still violated TheNuisance Abatement Bylaw and the previous, extended order to remedy.Notice of such non-compliance was sent to Debbie Ann Moyer, as ownerof the property. This was by letter dated May 25, 2015. The RM advisedof its intention to secure contractors to complete the required work, andto have them on site by July 6, 2015.

15 By letter dated June 1, 2015 the Moyers’ solicitor wrote to the RMrequesting an extension, so that they had the summer to complete the


cleanup. No specific date for the extension was mentioned. RM Councilconsidered and rejected the request for an extension, communicatingsame to Moyers’ counsel by letter June 18, 2015. Shortly thereafter Moy-ers’ counsel indicated an intention to bring a judicial review applicationand the RM indicated it would not proceed further until the matter wasdetermined.

Issues16 The issues in this application are:

1. Did the plaintiff have an adequate alternate remedy, such that ju-dicial review is unavailable?

2. What is the proper disposition of this application?

Analysis

1. Did the plaintiff have an adequate alternate remedy, such thatjudicial review is unavailable?

17 This is the main thrust of the respondent RM’s objection to thismatter.

18 The law is well-settled that judicial review should not be utilizedwhere an adequate alternate remedy exists. If, for example, there is astatutory right of appeal, that right ought to be exhausted before any judi-cial review proceedings are taken. See Canadian Pacific Ltd. v. MatsquiIndian Band, [1995] 1 S.C.R. 3 (S.C.C.).

19 This principle was considered by Justice Barclay in 71147 ManitobaCorp. v. Humboldt (Town) [1989 CarswellSask 121 (Sask. Q.B.)], 1989CanLII 5045. There, the plaintiff mall owner sued over the defendanttown’s assessment of municipal taxes. It was held that where a statutoryright of appeal exists there was no standing to bring a claim, and thecourt had no jurisdiction to hear it. While this case did not involve anapplication for judicial review, the underlying principles are apposite.

20 Judicial review was involved in Bayne (Rural Municipality No. 371)v. Saskatchewan Water Corp. [1990 CarswellSask 401 (Sask. C.A.)],1990 CanLII 7675. There, Sask Water ordered the RM to install a cul-vert. The RM felt aggrieved therefore sought judicial review (certiorari)from this court. The application was dismissed. That decision was upheldon appeal. The problem was that there was a statutory right of appealfrom the Sask Water decision. The Court of Appeal found this was anadequate alternate remedy. There were no special circumstances to jus-


tify bringing the judicial review application. The RM’s claim wasdismissed.

21 Bayne was considered in Huerto v. Saskatchewan (Minister ofHealth) (1995), 128 Sask. R. 208 (Sask. C.A.). Justice Cameron said:

Certiorari remains an extraordinary remedy of grace and not of right:Harelkin v. University of Regina, [1979] 2 S.C.R. 561. And generallyspeaking it will not be granted where there exists an adequate andeffective right of appeal.

22 This principle was discussed in Arch Transco Ltd. v. Regina (City),2002 SKCA 126, 227 Sask. R. 139 (Sask. C.A.), where Justice Jackson’sintroductory paragraph said: “One starts from the premise that the pres-ence of a statutory right of appeal normally results in the denial of anorder in the nature of a writ of certiorari.” Subsequently, in denying ajudicial review application Justice Scherman considered Arch Transcoand stated that a right of appeal or adequate alternate remedy will disenti-tle a litigant to seek judicial review: McCarty v. College of Psychologists(Saskatchewan), 2011 SKQB 471, 391 Sask. R. 105 (Sask. Q.B.), paras 9to 13.

23 I have also considered Justice Gunn’s decision in Young v. Regina(City) Police Service (1999), 176 Sask. R. 115 (Sask. Q.B.), wherein shespecifically decided that the court should not entertain judicial reviewapplications where there is an adequate alternate remedy by way of statu-tory appeal. She also determined that exceptional circumstances do notexist where there is a convenient alternate remedy provided for in thegoverning legislation.

24 In the case at bar, other remedies existed. The Municipalities Actdeals with enforcement of municipal law at ss. 362 to 366:

Inspection

362(1) If this Act or a bylaw authorizes or requires anything to beinspected, remedied, enforced or done by a municipality, a desig-nated officer may, after making reasonable efforts to notify theowner or occupant of the land or building to be entered to carry outthe inspection:

(a) enter that land or building at any reasonable time, and carryout the inspection authorized or required by the enactment orbylaw;

(b) request that anything be produced to assist in the inspection;and

(c) make copies of anything related to the inspection.


(2) The designated officer shall display or produce on request identi-fication showing that he or she is authorized to make the entry.

(3) When entering any land or building pursuant to this section, thedesignated officer may:

(a) enter with any equipment, machinery, apparatus, vehicle ormaterials that the designated officer considers necessary forthe purpose of the entry; and

(b) take any person who or thing that the designated officer con-siders necessary to assist him or her to fulfil the purpose ofthe entry.

(4) In an emergency or in extraordinary circumstances, the desig-nated officer need not make reasonable efforts to notify the owner oroccupant and need not enter at a reasonable hour, and may do thethings in clauses (1)(a) and (c) without the consent of the owner oroccupant.

(5) Repealed. 2007, c.32, s.23.

(6) Notwithstanding subsections (1) to (5), a designated officer shallnot enter any place that is a private dwelling without:

(a) the consent of the owner or occupant of the private dwelling;or

(b) a warrant issued pursuant to section 363 authorizing the entry.

Warrant re access to land or buildings

363(1) If a person refuses to allow or interferes with an entry or in-spection described in section 26, 27, 28, 29 or 362 or if a person failsto respond to a designated officer’s reasonable requests for access toproperty for the purposes mentioned in any of those sections, the mu-nicipality may apply to a justice of the peace or a provincial courtjudge for a warrant authorizing a person named in the warrant to:

(a) enter the land or building and to carry out the work or inspec-tion authorized or required by this Act or a bylaw; and

(b) search for and seize anything relevant to the subject-matter ofthe warrant.

(2) On an application pursuant to subsection (1), the justice of thepeace or provincial court judge may issue the warrant sought on anyterms and conditions that the justice of the peace or provincial courtjudge considers appropriate.

Order to remedy contraventions

364(1) If a designated officer finds that a person is contravening thisAct or a bylaw, the designated officer may, by written order, require


the owner or occupant of the land, building or structure to which thecontravention relates to remedy the contravention.

(2) The municipality shall serve a written order on the person towhom the order is directed.

(3) The order must:

(a) give notice to the person to whom the order is directed that anappeal is available; and

(b) advise as to the body to which the appeal is to be directed.

(4) The order may do all or any of the following:

(a) direct a person to stop doing something, or to change the wayin which the person is doing it;

(b) direct a person to take any action or measures necessary toremedy the contravention of this Act or a bylaw and, if neces-sary, to prevent a recurrence of the contravention, including:

(i) removing or demolishing a structure that has been er-ected or placed in contravention of a bylaw; or

(ii) requiring the owner of the land, building or structureto:

(A) eliminate a danger to public safety in the man-ner specified;

(B) remove or demolish a building or structure andlevel the site;

(C) fill in an excavation or hole and level the site;or

(D) improve the appearance of the land, buildingor structure in the manner specified;

(c) state a time within which the person must comply with thedirections;

(d) state that if the person does not comply with the directionswithin a specific time, the municipality may take the action ormeasure at the expense of the person.

(5) A municipality may cause an interest based on an order madepursuant to this section to be registered in the Land Titles Registryagainst the title to the land that is the subject of the order.

(6) If an interest is registered pursuant to subsection (5), the interestruns with the land and is binding on the owner and any subsequentowner.

(7) The municipality shall cause an interest that is registered pursuantto subsection (5) to be discharged when:


(a) the order has been complied with; or

(b) the municipality has performed the actions or measures men-tioned in the order and has recovered the cost of performingthose actions or measures from the person against whom theorder was made.

Appeal of order to remedy

365(1) A person may appeal an order made pursuant to section 364within 15 days after the date of the order:

(a) to a local appeal board, if one is established or designated bythe municipality; or

(b) to the council, if no local appeal board is established or desig-nated by the municipality.

(2) An appeal pursuant to subsection (1) does not operate as a stay ofthe appealed order unless the local appeal board or the council, on anapplication by the appellant, decides otherwise.

(3) On an appeal pursuant to subsection (1), the local appeal board orthe council, as the case may be, may:

(a) confirm, modify or repeal the order or decision being ap-pealed; or

(b) substitute its own order or decision for the order or decisionbeing appealed.

(4) An order or decision of the local appeal board or council on anappeal pursuant to subsection (1) may be appealed to the court on aquestion of law or jurisdiction only within 30 days after the date thedecision is made.

(5) On an appeal pursuant to subsection (4), the court may:

(a) confirm, modify or repeal the order or decision being ap-pealed; or

(b) order the matter to be returned to the local appeal board orcouncil to be dealt with in light of the court’s decision on thequestion of law or jurisdiction.

Municipality remedying contraventions

366(1) A municipality may take whatever action or measure is neces-sary to remedy a contravention of this Act or a bylaw or to prevent arecurrence of the contravention if:

(a) the municipality has given a written order pursuant to section364;

(b) the order contains a statement mentioned in clause 364(4)(d);


(c) the person to whom the order is directed has not compliedwith the order within the time specified in the order; and

(d) the appeal periods respecting the order have passed or, if anappeal has been made, the appeal has been decided and it al-lows the municipality to take the action or measure.

(2) If the order directed that premises be put and maintained in asanitary condition or be scheduled for demolition, the municipalitymay, pursuant to this section, close the premises and use reasonableforce to remove occupants.

(3) The expenses and costs of an action or measure taken by a munic-ipality pursuant to this section are an amount owing to the municipal-ity by the person who contravened the enactment or bylaw.

(4) If the municipality sells all or a part of a building or structure thathas been removed or demolished pursuant to this section, it shall:

(a) use the proceeds of the sale to pay the expenses and costs ofthe removal; and

(b) pay any excess proceeds to the person entitled to them.

25 As can be seen, in the case at bar this legislative scheme was fol-lowed but not completed by the applicants. An order to remedy was is-sued under s. 364. The appeal to RM Council was brought under s.365(1). Council modified the order (i.e. time extension) under s.365(3)(a). The problem herein is that the applicants did not exercise theirfurther right of appeal on a question of law or jurisdiction under s.365(4). They had 30 days to do so, but did not do so at all nor did theygive any indication at any time of their intention to do so.

26 Without delving into the merits of this application, it appears that theapplicants are alleging errors of law by alleging, inter alia, bad faith,unauthorized purpose, and consideration of irrelevant matters on the partof RM Council. All of these allegations may lead to a finding that theimpugned decision was made ultra vires. These issues could have been,and should have been, raised on a statutory appeal rather than throughthis application coming a year after Council’s decision was made.

27 This is not a case where the applicants expressed a desire to appeal,or attempted to do so using the wrong process. This case is thereforedistinct from Borowski v. Stefanson, 2015 SKCA 70 (Sask. C.A.).

28 Again, not having been asked to decide the merits I am not doing so. Iwould venture, however, that the evidence supporting these legalgrounds seems thin.


29 As well, while not asked to pass upon this issue, the delay in bringingthis application would be a serious factor on any consideration of themerits. It could, in fact, be a fatal factor.

30 Those matters are not before me, and my comments herein are strictlyobiter.

31 While there may be cases where a court entertains a judicial reviewapplication prior to the exhaustion of other remedies, those cases are theexception rather than the rule. This is not one of those exceptional cases.The applicants had an adequate alternate remedy, in the form of a statu-tory appeal. The fact that Mr. Moyer avers that he was unaware of hisstatutory right does not avail him here. The applicants are taken to knowthe law. The situation here is distinct from Arch Transco, as there was nostatutory requirement on RM Council to notify the applicants of any fur-ther right of appeal.

32 In reaching the conclusion that no exceptional circumstances exist tojustify entertaining the within application, I have specifically considered:the fact that judicial review is a discretionary remedy; the fact that thestatutory appeal was convenient and readily available to the applicants;the fact that there is no contest that the order was wrongfully made, butonly that it should have allowed more time to the applicants for compli-ance; the fact that the appellate body pursuant to the Act is this court; thesignificant unexplained delay involved; and that the statutory appeal pro-vided a potential remedy that was entirely adequate.

33 I have therefore determined that an adequate alternate remedy existedand that this application for judicial review is not properly before thiscourt.

2. What is the proper disposition of this application?34 Given the above determinations, this application cannot stand. The

only appropriate disposition is to dismiss same.35 Accordingly, I dismiss the application in its entirety. Counsel have

leave to arrange a date through the local registrar to speak to costs, ifrequired.

Application dismissed.

Liddy v. Vaughan (City) 259

[Indexed as: Liddy v. Vaughan (City)]

Carrie Liddy, Applicant (Moving Party) and City of Vaughan,Respondent (Responding Party) and Ontario Municipal Board,

Respondent (Responding Party) and Vaughan Health Campus ofCare and Mackenzie Health, (Responding Parties)

Ontario Superior Court of Justice (Divisional Court)

Docket: Toronto 496/14

2015 ONSC 5939

D.L. Corbett J.

Heard: September 24, 2015


Written reasons: September 28, 2015

Municipal law –––– Planning appeal boards and tribunals — Judicial re-view — Leave to appeal — Miscellaneous –––– Applicant appealed city’s by-law related to its proposed new hospital lands — Board found applicant had nostanding to bring appeal and that proposed appeal did not raise planning issueson which she could succeed — Applicant sought to issue subpoenas to witnessesfor board hearing and to cross-examine on affidavit evidence tendered by city —Board declined to issue subpoenas and declined to order cross-examinations,principally on basis that they would not yield relevant evidence for issues beforeboard — Appeal was summarily dismissed — Applicant brought motion forleave to appeal — Motion dismissed — Standard of review was reasonable-ness — Standing, in this context, was matter of practice and procedure beforeboard, matter that should ordinarily attract deference in any event — Here,standing was uniquely tailored to planning process, and had been revisited bylegislature in 2006, out of concerns that planning issues be decided at first in-stance by city council and not board — This was issue in respect to whichboard’s immersion in planning process and experience with historic develop-ment of law made clear case for application of “home statute principle”.

Municipal law –––– Planning appeal boards and tribunals — Practice andprocedure — Standing –––– Applicant appealed city’s by-law related to its pro-posed new hospital lands — Board found applicant had no standing to bring ap-peal and that proposed appeal did not raise planning issues on which she couldsucceed — Applicant sought to issue subpoenas to witnesses for board hearingand to cross-examine on affidavit evidence tendered by city — Board declinedto issue subpoenas and declined to order cross-examinations, principally on ba-sis that they would not yield relevant evidence for issues before board — Appeal


was summarily dismissed — Applicant brought motion for leave to appeal —Motion dismissed — As to cross-examination and subpoenas, there was agree-ment with board’s conclusion that those efforts would not have yielded any use-ful evidence for purpose of determining standing or whether there was planningissue upon which applicant could succeed — Facts in respect of standing issuewere uncontested and were not based on underlying merits of appeal — Nothingthat would have been uncovered in cross-examinations could possibly have af-fected board’s determination of standing issue — Board’s conclusion that s.34(19) ¶ 2 of Planning Act requires participation whether orally or in writing inmeeting at which by-law itself was considered by council was manifestlyreasonable.

Cases considered by D.L. Corbett J.:

Bracebridge (Town) By-law No. 2010-067, Re (2013), 2013 ONSC 891, 2013CarswellOnt 1463, 75 O.M.B.R. 171, 8 M.P.L.R. (5th) 54, (sub nom. Smithv. Bracebridge (Town)) 303 O.A.C. 159 (Ont. Div. Ct.) — referred to

Loblaw Properties Ltd., Re (2011), 2011 CarswellOnt 1999, 68 O.M.B.R. 473,[2011] O.M.B.D. No. 159 (O.M.B.) — referred to

Mattamy Realty Ltd., Re (2012), 2012 CarswellOnt 5167, (sub nom. Oakville(Town) By-law No. 2009-189, Re) 72 O.M.B.R. 75 (O.M.B.) — referred to

Mulmur (Township) By-law No. 50-13, Re (2014), 2014 CarswellOnt 12954, 81O.M.B.R. 340 (O.M.B.) — referred to

North Kawartha (Township) By-law No. 95-13, Re (2014), 2014 CarswellOnt9243 (O.M.B.) — referred to

Ontario (Minister of Municipal Affairs & Housing), Re (2011), 2011 Carswell-Ont 11203, [2011] O.M.B.D. No. 778 (O.M.B.) — referred to


Planning Act, R.S.O. 1990, c. P.13s. 34(19) ¶ 2 — considered

MOTION for leave to appeal decision reported at Vaughan (City) By-law No.075-2014, Re (2014), 28 M.P.L.R. (5th) 322, 2014 CarswellOnt 12668, 83O.M.B.R. 299 (O.M.B.), dismissing appeal concerning by-law.

James C. Morton, for Applicant, Moving PartyStephen Waque, for Respondent, Responding PartyStephen J. O’Melia, for Responding Party, Mackenzie Health

D.L. Corbett J. (orally):

1 Ms. Liddy seeks leave to appeal from the OMB’s decision of Septem-ber 12, 2014 to summarily dismiss Ms. Liddy’s appeal of the City ofVaughan’s by-law related to its proposed new hospital lands. The OMB

Liddy v. Vaughan (City) D.L. Corbett J. 261

found that Ms. Liddy had no standing to bring the appeal and that herproposed appeal did not raise planning issues on which she couldsucceed.

2 Ms. Liddy sought to issue subpoenas to witnesses for the Board hear-ing and to cross-examine on affidavit evidence tendered by Vaughan.The Board declined to issue the subpoenas and declined to order cross-examinations, principally on the basis that they would not yield relevantevidence for the issues before the Board.

3 The test for leave to appeal is:

(a) whether there is good reason to doubt the reasonableness of theBoard’s decision; and

(b) whether the proposed appeal raises matters of such importance asto merit the attention of the Divisional Court.

4 Mr. Morton, in his very able submissions, argued that the standard ofreview on the standing issue is correctness, and thus that the test forleave to appeal is, likewise, whether there is good reason to doubt thecorrectness of the Board’s decision. Legal principles of standing, Mr.Morton argues, are matters of legal expertise, not planning expertise, andthus should not attract “home statute deference.” I disagree. Standing, inthis context, is a matter of practice and procedure before the Board, amatter that should ordinarily attract deference in this court in any event.Here, standing is uniquely tailored to the planning process, and has beenrevisited by the legislature in 2006, out of concerns that planning issuesbe decided at first instance by City Council and not the Board: seeLoblaw Properties Ltd., Re (2011), 68 O.M.B.R. 473 (O.M.B.). This isan issue in respect to which the OMB’s immersion in the planning pro-cess and experience with the historic development of the law, makes it aclear case for the application of the “home statute principle”. In my viewthe standard of review is reasonableness.

5 In respect to the request to cross-examine and to issue subpoenas, Iagree with the Board’s conclusion that those efforts would not haveyielded any useful evidence for the purpose of determining standing orwhether there was a planning issue upon which Ms. Liddy could suc-ceed. The facts in respect to the standing issue are uncontested and arenot based on the underlying merits of the appeal: nothing that wouldhave been uncovered in the cross-examinations could possibly have af-fected the Board’s determination of the standing issue.


6 Section 34(19) 2 of the Planning Act provides that “a person or publicbody who, before the by-law was passed, made oral submissions at apublic meeting or written submissions to the council”, has standing tobring an appeal of the by-law. Prior to the 2006 amendment, the OMBhad discretion to relieve from the strict application of this provision andthus a broader standing principle was in place than is the case now. Thatdiscretion was removed in the 2006 amendments. The requirement of s.34(19) 2 is mandatory for any person seeking standing on the basis ofthat provision. See Bracebridge (Town) By-law No. 2010-067, Re, 2013ONSC 891 (Ont. Div. Ct.), per Molloy J., at paras. 56-59.

7 Ms. Liddy did not attend or make submissions at the Council meetingat which the by-law was presented. She did, however, participate in priorpublic consultations and meetings that were part of the process that ledup to introduction of the by-law to City Council. This, Mr. Morton ar-gues, is sufficient to meet the test of having made “written submissions”within the meaning of s.34(19) 2.

8 The Board concluded otherwise. It found, in effect, that s.34(19) 2requires participation whether orally or in writing in a meeting at whichthe by-law, itself, was considered by council. In my view, this conclusionis manifestly reasonable. It is consistent with five prior OMB decisions:Loblaw Properties Ltd., Re (2011), 68 O.M.B.R. 473 (O.M.B.), NorthKawartha (Township) By-law No. 95-13, Re, 2014 CarswellOnt 9243(O.M.B.), Mulmur (Township) By-law No. 50-13, Re (2014), 81O.M.B.R. 340 (O.M.B.), Mattamy Realty Ltd., Re (2012), 72 O.M.B.R.75 (O.M.B.), Ontario (Minister of Municipal Affairs & Housing), Re,[2011] O.M.B.D. No. 778 (O.M.B.). It reflects the purpose of the stand-ing requirement, which is to ensure that matters are decided at first in-stance by City Council and it makes it more practical for the City toknow and give personal notice to all persons with standing to bring anappeal. As is reflected in the cases and in the history of the case at bar,the planning process for a large project, such as a public hospital, affordsmembers of the public many opportunities and ways to make their viewsknown. Only addressing City Council orally or in writing in respect ofthe by-law itself, however, will give someone legal standing for an ap-peal of the by-law under s.34(19) 2.

9 This is not some derogation of the political process or a wet blanketthrown on community involvement. City Council is democraticallyelected to govern. Ordinary norms of public law do not give standing toan interested member of the public with no legal interest at stake, to chal-

Liddy v. Vaughan (City) D.L. Corbett J. 263

lenge legislation enacted by a democratically elected legislature. Thestanding provisions in s.19(34) 2 should be seen as a liberalization ofordinary standing principles, tailored to the unique context of planninglaw. It was reasonable for the Board to interpret this liberalized provisionas it did.

10 Since Ms. Liddy does not have standing in any event, there is no needto consider whether the appeal she has no standing to bring raises plan-ning issues on which she could succeed.

11 The motion is dismissed.

Costs12 I have endorsed the back of the Motion Record, “For reasons given

orally, the motion for leave to appeal is dismissed. Costs to Vaughan of$10,000 inclusive and costs to Mackenzie Health of $5,000 inclusive,payable by Ms. Liddy within 60 days.”

Motion dismissed.


[Indexed as: Thompson (Litigation guardian of) v. Saanich(District)]

Rebecca Thompson, an infant by her litigation guardian, SoniaGalbraith, Plaintiff and The Corporation of the District of

Saanich, Defendant

British Columbia Supreme Court

Docket: Victoria 15-0412

2015 BCSC 1750

Baird J.

Heard: August 18, 19, 2015


Municipal law –––– Municipal liability — Negligence — Vicarious liabil-ity — Miscellaneous –––– Day camp employees — Plaintiff, then aged 11, wasenrolled in day camp offered by defendant district — During morning recess,while she was outside playing game called “grounders” with other children,plaintiff fell from piece of playground equipment and struck her head —Grounders was form of tag — Plaintiff claimed that grounders was inherentlyunsafe activity which district’s employees ought not to have permitted to beplayed, or, alternatively, that it was unsafe for district’s employees to have per-mitted it to be played on particular playground equipment at school where plain-tiff fell — Plaintiff brought action for damages against district — Action dis-missed — District conceded that game of grounders was not without some riskand that accidents could occur in midst of even reasonably innocuous physicalactivity — Question was whether district’s employees, in permitting game to beplayed, exposed plaintiff to unreasonable risk — Game of grounders fell withineveryday and reasonably safe range of playground activity for someone of plain-tiff’s age and experience — Risk of harm inherent in such games was suffi-ciently remote that to permit children to play them was not unreasonable —Plaintiff and her peers were adequately supervised during their play time.

Torts –––– Negligence — Occupiers’ liability — Particular situations —Amusement or other public parks –––– Plaintiff, then aged 11, was enrolled inday camp offered by defendant district — During morning recess, while she wasoutside playing game called “grounders” with other children, plaintiff fell frompiece of playground equipment and struck her head — Grounders was form oftag — Plaintiff claimed that grounders was inherently unsafe activity which dis-trict’s employees ought not to have permitted to be played, or, alternatively, thatit was unsafe for district’s employees to have permitted it to be played on partic-ular playground equipment at school where plaintiff fell — Plaintiff brought ac-

Thompson (Litigation guardian of) v. Saanich (District) 265

tion for damages against district — Action dismissed — District conceded thatgame of grounders was not without some risk and that accidents could occur inmidst of even reasonably innocuous physical activity — Question was whetherdistrict’s employees, in permitting game to be played, exposed plaintiff to unrea-sonable risk — Game of grounders fell within everyday and reasonably saferange of playground activity for someone of plaintiff’s age and experience —Risk of harm inherent in such games was sufficiently remote that to permit chil-dren to play them was not unreasonable — Plaintiff and her peers were ade-quately supervised during their play time.

Cases considered by Baird J.:

Agar v. Weber (2014), 2014 BCCA 297, 2014 CarswellBC 2129, 63 B.C.L.R.(5th) 219, 359 B.C.A.C. 160, 615 W.A.C. 160, [2015] 4 W.W.R. 720 (B.C.C.A.) — referred to

LaPlante (Guardian ad litem of) v. LaPlante (1995), 8 B.C.L.R. (3d) 119, (subnom. LaPlante v. LaPlante) 60 B.C.A.C. 185, (sub nom. LaPlante v.LaPlante) 99 W.A.C. 185, 26 C.C.L.T. (2d) 32, 125 D.L.R. (4th) 569, 15M.V.R. (3d) 22, 1995 CarswellBC 312, [1995] B.C.J. No. 1303 (B.C.C.A.) — referred to

Myers v. Peel (County) Board of Education (1981), [1981] 2 S.C.R. 21, 123D.L.R. (3d) 1, 17 C.C.L.T. 269, 37 N.R. 227, 1981 CarswellOnt 579, 1981CarswellOnt 612, [1981] A.C.S. No. 61, [1981] S.C.J. No. 61 (S.C.C.) —referred to

Wright v. Cheshire County Council (1952), [1952] 2 All E.R. 789 (Eng.C.A.) — considered


Occupiers Liability Act, R.S.B.C. 1996, c. 337Generally — referred tos. 3(1) — considereds. 3(2)(a) — considereds. 3(2)(b) — considered

Words and phrases considered:

grounders

Grounders is a version of tag in which one child is “it” and the other childrenclimb on to the playground structure. The child who is “it” attempts to “tag” thechildren on the playground structure from the ground. The children on the struc-ture move around to avoid being tagged. If the child who is “it” decides to climbon to the playground structure they have to close their eyes. The other childrenon the playground structure never close their eyes and this gives them a signifi-cant advantage. If the child who is “it” opens their eyes while on the playgroundstructure the other children yell “broken dishes, broken dishes.” If a child thatwas not “it” climbed off the playground structure the child who was “it” could


yell “grounders” and then the other child who was on the ground would become“it”.

ACTION by infant plaintiff against district for damages for injuries sufferedwhile on playground at daycamp.

B. McIntosh, for PlaintiffA. Bookman, for Defendant

Baird J.:

Introduction1 This action arises from an unfortunate incident at Gordon Head Mid-

dle School in Victoria, B.C. on July 7, 2009. The plaintiff, RebeccaThompson, then aged 11, was enrolled in a painting, drawing and dramaday-camp offered by the defendant, the Corporation of the District ofSaanich (the “District”), for children ranging in age from 8 to 12 years.During a morning recess, while she was outside playing a game calledgrounders with a number other children, the plaintiff fell from a piece ofplayground equipment and struck her head.

2 Liability is the sole issue for me to determine on this summary trial.In June 2014 Master MacNaughton ordered that the question of damagesshould be tried separately. The parties consented to have the matter dealtwith by summary trial. I have been able to find the facts necessary todecide the issues of fact and law involved, and I agree with counsel thatsummary adjudication is otherwise just, fair and proportionate. Theplaintiff has sued in negligence and under the Occupiers Liability Act,RSBC 1996, c. 337 (“the OLA”). The District denies liability and seeksdismissal of the action.

3 There were approximately 16 children enrolled in the day-camp. Thestructured activities — the artwork and dramatics — were held indoors,but there were breaks in the daily schedule during which the childrenenjoyed free play outdoors. The evidence establishes that the plaintiffhad played grounders the previous day, and had played it on many previ-ous occasions at her school, always without incident. The game was im-provised. The children themselves decided to play it. It was not organ-ized by the District’s employees.

4 The program assistant who was supervising the playground at the ma-terial time knew that the plaintiff and her young peers were playinggrounders and did not stop them. Indeed, the evidence suggests that he

Thompson (Litigation guardian of) v. Saanich (District) Baird J. 267

may well have participated in the game for a time. He deposed in evi-dence that he had played and enjoyed the game himself as a child andconsidered it to be perfectly harmless. He described the rules as follows:

Grounders is a version of tag in which one child is “it” and the otherchildren climb on to the playground structure. The child who is “it”attempts to “tag” the children on the playground structure from theground. The children on the structure move around to avoid beingtagged. If the child who is “it” decides to climb on to the playgroundstructure they have to close their eyes. The other children on theplayground structure never close their eyes and this gives them a sig-nificant advantage. If the child who is “it” opens their eyes while onthe playground structure the other children yell “broken dishes, bro-ken dishes.” If a child that was not “it” climbed off the playgroundstructure the child who was “it” could yell “grounders” and then theother child who was on the ground would become “it”.

The Duty and Standard of Care5 There is no doubt that the District owed the plaintiff a duty not to

expose her to an unreasonable risk of foreseeable harm: LaPlante(Guardian ad litem of) v. LaPlante, [1995] B.C.J. No. 1303 (B.C. C.A.),at para. 14. The relevant standard of care is that of a careful and prudentparent: Myers v. Peel (County) Board of Education, [1981] S.C.J. No. 61(S.C.C.).

6 Section 3 of the OLA reads as follows: Occupiers’ duty of care

3 (1) An occupier of premises owes a duty to take that care that in allthe circumstances of the case is reasonable to see that a person...willbe reasonably safe in using the premises.

(2) The duty of care referred to in subsection (1) applies in relation tothe

(a) condition of the premises, [or]

(b) activities on the premises...

7 The standard of care under the OLA is the same as for common lawnegligence, namely to protect others from an objectively unreasonablerisk of harm: Agar v. Weber, 2014 BCCA 297 (B.C. C.A.) at para. 30.

8 Our tort system is based on the concept of fault. Accidents are a partof everyday life. The District is vicariously liable for the negligent con-duct of its employees but is not strictly or absolutely liable for any andall injuries however sustained by children in its temporary care or con-


trol. The District’s answer to the whole of the case is that its employeesdid not fall short of the duty of care imposed on them by law.

The Position of the Parties9 The plaintiff argues that grounders is an inherently unsafe activity

which the District’s employees ought not to have permitted to be played,or, alternatively, that it was unsafe for the District’s employees to havepermitted it to be played on the particular playground equipment atGordon Head Middle School from which the plaintiff fell.

10 The District denies liability on the basis that grounders is a suitableactivity for children of the plaintiff’s age and experience, and permittingthe game to be played did not expose the plaintiff to an unreasonable riskof harm. There was no evidence, furthermore, that the playground equip-ment was unsafe, and there was insufficient evidence that permittinggrounders to be played on it was unreasonably risky.

Brief Evidence and Argument11 The plaintiff submitted evidence from the vice-principal of the plain-

tiff’s school, who deposed that grounders had been banned on his schoolproperty because “it has the potential for physical injury to occur”. Hedid not explain what he meant by this, but the plaintiff’s mother set outin a separate affidavit that the ban had been imposed because a boy hadbroken his arm playing the game. She supported the ban because shethought it “really dumb having someone climbing on a jungle gym withtheir eyes closed, and having other children running away from the per-son while climbing on the equipment.” The plaintiff’s mother claimedthat she was not aware that the District had failed to impose a similar banand complained that she had not been notified that her child would bepermitted to play grounders at the day-camp. If she had been warned ofthis possibility, she said, she would have forbidden the plaintiff fromplaying the game.

12 The District, by contrast, presented evidence that grounders is an in-nocent and minimally risky form of childhood playground activity. Inthis connection I received not only the testimony of the program assistantwhose description of the game appears above, but depositions from otherDistrict employees with experience in youth education and recreation.According to them, grounders has been played for years on Saanich play-grounds, including at Gordon Head Middle School, and with the excep-tion of the incident involving the plaintiff, no accidents or mishaps have


occurred while playing it. The District presented uncontroverted evi-dence that in over 11,000 program days of summer youth activity be-tween 2007 and 2012 there were no documented injuries other than in theplaintiff’s case and arising from a handful of accidents at a skateboardpark. The District submitted that its record of safety is “near perfect” andreferred to this as powerful proof that their methods and practices caringfor children are safe and sound.

13 Counsel for the District characterised the grounders ban at the plain-tiff’s school as a “knee jerk reaction” to an isolated and reasonably minorincident, and argued that this sort of disproportionate reaction to grosslyatypical eventualities would lead to a situation in which “the activities ofthe young would be unduly circumscribed and only inactivity and inani-tion could be planned”: Wright v. Cheshire County Council, [1952] AllE.R. 789 (Eng. C.A.) at p. 796.

14 I was told that the District takes a more robust approach to children’splay. Its programs encourage physical outdoor activity. Risk-taking is en-couraged within reasonable limits on the basis that children who neverhazard a chance are unlikely to develop properly either physically oremotionally. The District has adopted the sort of thinking expressed in adocument, handed up to me without objection as “social fact” evidence,entitled “The 2015 ParticipAction Report Card on Physical For Childrenand Youth” (http://www.participaction.com/report-card-2015/). I suspectthat most Canadians are aware, in a general way, of ParticipAction’smission for a more vigorous national lifestyle. Their “report card” con-cludes, amongst other things, that long-term physical health and develop-ment should be valued as much as safety, and that rules and regulationsdesigned to prevent injuries and reduce tort liability have become exces-sive and counter-productive to youth health and fitness. One of their ral-lying cries is: “Adults should get out of the way and let children play.”

15 During the progress of this litigation the plaintiff has amended herpleadings a number of times. I gather that, at an earlier stage, the plaintiffclaimed the playground structure on which she fell was unsafe and didnot comply with “building codes.” This is no longer her position. Coun-sel conceded on the present hearing that the playground equipment inquestion was in reasonably safe condition and no hazard was caused bythe manner of its construction or maintenance. He argued, however, thatit was a “complicated” structure, consisting of a number of platforms ofdifferent heights, and that care had to be taken in using the equipment.This would seem to me to be undeniable. His argument, in its final itera-


tion, was not that there was anything wrong with the equipment itself,but that the activity permitted on the equipment — namely grounders —was not safe.

16 For ease of understanding, I have appended to this judgment a photo-graph of the playground equipment on which the plaintiff was injured.The platform from which she fell is marked “A” and the one on whichshe landed is marked “B”. The evidence establishes that the plaintiff losther footing on this playground equipment while attempting to avoid be-ing tagged by the child on the ground who was “it”. I stress that the rulesof the game did not require the plaintiff to keep her eyes closed while onthe playground equipment and in fact her eyes were open when she fell.

Discussion17 The District conceded that the game of grounders is not without some

risk and that accidents can occur in the midst of even reasonably innocu-ous physical activity. The question is not whether the District’s employ-ees, in permitting the game to be played, exposed the plaintiff to the pos-sibility of any risk, however small, but whether they exposed her tounreasonable risk. I have concluded that they did not.

18 To the contrary, I am satisfied that grounders falls within an everydayand reasonably safe range of playground activity for someone of theplaintiff’s age and experience. I note that the plaintiff was not an infantor toddler but a reasonably mature adolescent who was in the upperrange of the age group accepted into the day-camp in question. She wasnot a small child, in other words, who was led to calamity by a largerone, or a person of immature years who ought not to have been playingon equipment designed for older kids. The plaintiff had experience play-ing grounders and knew how to do so safely, including on the play-ground equipment in question. It seems clear on the evidence, further-more, that she was playing the game voluntarily, happily, and in a spiritof fun that was shared by her playmates.

19 The evidence submitted on this hearing establishes, and my own ex-periences both as a child and a parent confirm, that grounders and gameslike it involving pursuit and evasion are commonly played by children,who enjoy them — as did the plaintiff, whose evidence on this point wasclear — because they are exciting and fun. I am prepared to take noticeof the fact that, in the overwhelming majority of cases, no mischiefcomes to anyone from such innocent pleasures.


20 Specifically, I find that there is nothing inherently dangerous aboutgrounders such that special training or instruction is required to play it orto superintend children of the plaintiff’s age and experience who chooseto do so. I must reject the argument advanced by the plaintiff that it wasthe sort of activity that required parental consent or approval in advance.There is no doubt that games like grounders involve a small degree ofrisk, as do all children’s outdoor activities involving running, jumping,climbing, tagging, chasing, dodging, feinting, and so on. But judging thematter by the objective measure of the reasonably careful and prudentparent, I conclude that the risk of harm inherent in such games is suffi-ciently remote that to permit children to play them is not unreasonable.

21 The evidence satisfies me, furthermore, that the plaintiff and herpeers were adequately supervised during their play time. I repeat that theDistrict’s duty to the plaintiff did not include the removal of every possi-ble danger that might arise while she was in the care of its employees,but was only to protect her from unreasonable risk of harm. A supervisorwas close at hand minding the children throughout the recess. There wasnothing to suggest that he was doing so other than diligently and consci-entiously. He was standing on the playground equipment near to theplaintiff at a vantage that gave him a good view of the game and the stateof play. There was no evidence that any of the children were behavingrecklessly or aggressively or that there was anything unpleasant, malevo-lent or hazardous about their manner of interaction. The plaintiff was notpushed or touched. She said quite simply that she was moving backwardsaway from the child who was “it” and lost her footing.

22 I sympathise strongly with the plaintiff and her family. What little Iwas told about the consequences of this accident suggested that the plain-tiff’s injuries were not trivial. But I am afraid that the consequences ofthe plaintiff’s misadventure cannot transform the District into a no-faultinsurer, and perfection is not the standard of care to be discharged by itsemployees when minding school-aged children.

Decision23 I have come to the conclusion that what occurred in this case was a

most unfortunate accident for which no fault can be attributed to the Dis-trict. The plaintiff has failed to establish that the District’s employeesexposed her to an unreasonable risk of foreseeable harm, or failed to ade-quately supervise the innocent playground activities in which she wasengaged with other blameless children on the occasion in question.


24 It follows that the action must be dismissed. The District is entitled toits costs if demanded.

Action dismissed.

Appendix

Bailey v. Medeiros 273

[Indexed as: Bailey v. Medeiros]

Peter Bailey, Applicant and Martin Medeiros and theCorporation of the City of Brampton, Respondents


Docket: CV-15-4784-00

2015 ONSC 6733

Daley R.S.J.

Heard: October 23, 2015

Judgment: November 9, 2015

Municipal law –––– Council members — Eligibility requirements — Resi-dency –––– Respondent was elected municipal councillor for City of Bramptonin October 2014 — Applicant asserted that respondent was not qualified to benominated or elected as municipal councillor because he resided in City of Mis-sissauga at time of election — Respondent said he had home in Mississaugawhere his wife and children resided — However, he had moved to Brampton inMay 2014 to take up residence with his parents — Respondent and his wife pur-chased new home in Brampton in May 2015 — Applicant commenced applica-tion challenging election of respondent — Applicant brought motion for inter-locutory injunction restraining respondent from attending or voting at anymeeting of Brampton city council until after hearing of application — Motiondismissed — Serious question was to be tried on validity of election — How-ever, on conflicting and untested affidavit material it was difficult to fully assessstrength of applicant’s case — Application was possibly statute-barred by s.83(2) of Municipal Elections Act, 1996 — Applicant had offered no evidencethat his own personal interests would be adversely affected if his application forinjunction was dismissed — If applicant were to succeed on motion for injunc-tive relief, respondent would be deprived of opportunity to vote and citizens oftwo wards would be deprived of their vote as well — Purpose of interlocutoryinjunction was to preserve status quo and not to give plaintiff remedy beforetrial — Balance of convenience favoured respondent — Public interests at stakein allowing City of Brampton to carry out municipal duties and in preservingpublic’s interest in conduct of municipal business, outweighed private interestsof applicant.

Cases considered by Daley R.S.J.:

Cusimano v. Toronto (City) (2012), 2012 ONCA 907, 2012 CarswellOnt 16440,7 M.P.L.R. (5th) 51, 299 O.A.C. 228, 358 D.L.R. (4th) 117 (Ont. C.A.) —referred to


Gould v. Canada (Attorney General) (1984), [1984] 2 S.C.R. 124, 13 D.L.R.(4th) 485 at 491, 53 N.R. 394, 42 C.R. (3d) 88n, 1984 CarswellNat 692,1984 CarswellNat 1145 (S.C.C.) — referred to

Harper v. Canada (Attorney General) (2000), 2000 SCC 57, 2000 CarswellAlta1158, 2000 CarswellAlta 1159, 193 D.L.R. (4th) 38, [2000] 2 S.C.R. 764,271 A.R. 201, 234 W.A.C. 201, [2000] S.C.J. No. 58, [2001] 9 W.W.R. 201,92 Alta. L.R. (3d) 1, REJB 2000-20913 (S.C.C.) — referred to

Hurley v. Canada (Chief Electoral Officer) (1988), 66 O.R. (2d) 524, 55 D.L.R.(4th) 472, 1988 CarswellOnt 868, [1988] O.J. No. 1836 (Ont. H.C.) — re-ferred to

RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 164 N.R. 1, (subnom. RJR-MacDonald Inc. c. Canada (Procureur general)) 60 Q.A.C. 241,54 C.P.R. (3d) 114, 111 D.L.R. (4th) 385, 1994 CarswellQue 120F, [1994] 1S.C.R. 311, 1994 CarswellQue 120, [1994] S.C.J. No. 17, EYB 1994-28671,[1994] A.C.S. No. 17 (S.C.C.) — followed


Municipal Act, 2001, S.O. 2001, c. 25s. 11 — considereds. 11(3) — considereds. 11(3) ¶ 1 — considereds. 11(3) ¶ 2 — considereds. 256 — considereds. 257 — considereds. 259 — considereds. 265 — considereds. 265(2) — considereds. 273(1) — considered

Municipal Elections Act, 1996, S.O. 1996, c. 32, Sched.s. 2(1) — considereds. 2(2) — considereds. 2(2) ¶ 2 — considereds. 17 — considereds. 17(2) — considereds. 83 — considereds. 83(2) — considered

MOTION by applicant for interlocutory injunction restraining respondent fromattending or voting at any meeting of city council until after hearing of applica-tion challenging election of respondent.

David Shiller, for ApplicantMark Geiger, Jodi Solomon, for Martin MedeirosOwen M. Rees, for Corporation of the City of Brampton

Bailey v. Medeiros Daley R.S.J. 275

Daley R.S.J.:

1 The applicant moved for an interim and interlocutory injunction re-straining the respondent, Martin Medeiros (“Medeiros”), from attending,or voting at, any meeting of the City Council of the Corporation of theCity of Brampton, until after the hearing of the application.

2 The motion was dismissed on October 26, 2015 with reasons to fol-low. These are the reasons.

3 The applicant instituted an application on October 22, 2015 and alongwith it filed this motion seeking the interim and interlocutory injunctiverelief referred to.

4 The applicant filed an affidavit in support of the motion which wassworn on October 16, 2015. The respondent Medeiros filed a reply affi-davit dated October 23, 2015. No cross examinations were conductedwith respect to the affidavits filed.

5 The principal evidence offered in the applicant’s affidavit is asfollows:

(a) Medeiros submitted nomination papers for the office of municipalcouncillor for the City of Brampton on August 20, 2014;

(b) the City of Brampton municipal election was held on October 27,2014 and Medeiros was elected as a municipal councillor;

(c) the applicant asserted that Medeiros was not qualified to be nomi-nated or elected as a municipal councillor because he resided inthe City of Mississauga, both at the time he submitted his nomina-tion papers on August 20, 2014 and as of the date of the electionon October 27, 2014, at which times neither he nor his spouse wasan owner or tenant of land in the City of Brampton;

(d) the applicant asserted that Medeiros misrepresented to the clerk ofthe City of Brampton that 27 Higgins Crescent, Brampton, On-tario, was his qualifying address, when he neither resided therenor was he the owner or tenant of that address;

(e) the Higgins Crescent address was registered in the Land RegistryOffice #43 as being owned by Laurenio Martino Medeiros andJudite Aguiar Medeiros;

(f) the Land Registry Office #43 records show that as of August 20,2014, Medeiros and his wife, Nancy da Silva, owned a property at383 Derrydale Drive, Mississauga;


(g) on May 1, 2015 Medeiros and his wife purchased a property at 10Chesapeake Court, Brampton.

6 The respondent Medeiros offered the following evidence in the affi-davit submitted on his behalf dated October 23, 2015:

(a) he was born in Brampton and grew up in his parents’ home at 27Higgins Crescent, Brampton;

(b) in 2010 he moved to a home at 383 Derrydale Drive, Mississaugawhere he resided with his wife and children for four years;

(c) throughout those years he contemplated moving back to Bramptonand in the spring of 2014 he developed a plan in which he movedfrom his matrimonial home in May 2014 to take up residence withhis parents at their Higgins Crescent address;

(d) on June 11, 2014 he registered his change of address to the Hig-gins Crescent address with respect to his drivers licence and healthcard as well as for the billing purposes with respect to the 407ETR and Rogers Communications;

(e) in the period from May 2014 until after the election on October27, 2014 he slept every night at the Higgins Crescent address andlived at that home as his primary residence;

(f) on August 20, 2014 he registered as a candidate for RegionalCouncillor for the Region of Peel to represent Wards 3 and 4 inthe City of Brampton;

(g) he entered into a lease in his personal capacity for a campaignoffice on September 20, 2014 with respect to premises located at75 Clarence Street, Brampton. The lease was for a term of onemonth and 10 days, ending October 31, 2014;

(h) he was elected as Regional Councillor for the Region of Peel;

(i) on February 13, 2015 the respondent and his wife accepted an of-fer to purchase on their Derrydale residence;

(j) on May 1, 2015 the respondent and his wife took possession of ahome located at 10 Chesapeake Court, Brampton and the respon-dent moved into that home in May 24, 2015.

Analysis:7 The legislative framework as to the eligibility to seek election in both

a local municipality, in this case the City of Brampton, and in an upper-


tier municipality, in this case the Region of Peel is found in ss. 256 and257 of the Municipal Act, 2001 S.O. 2001, c. 25 which read as follows:

Eligibility, local municipality

256. Every person is qualified to be elected or to hold office as amember of a council of a local municipality,

(a) who is entitled to be an elector in the local municipality undersection 17 of the Municipal Elections Act, 1996; and

(b) who is not disqualified by this or any other Act from holdingthe office. 2001, c. 25, s. 256.

Eligibility, upper-tier municipality

257. Every person is qualified to be elected or to hold office as amember of a council of an upper-tier municipality,

(a) who is entitled to be an elector in a lower-tier municipalitywithin the upper-tier municipality under section 17 of the Mu-nicipal Elections Act, 1996; and

(b) who is not disqualified by this or any other Act from holdingthe office. 2001, c. 25, s. 257.

8 The applicant moves for the interim and interlocutory injunction torestrain the respondent Medeiros, pre-emptively, in advance of his pend-ing application wherein he seeks various relief including declarationsthat the respondent was not qualified to be nominated for the office ofcity councillor on August 20, 2014, that he was not qualified to beelected to the office of city councillor October 27, 2014, that his electionon that date was not valid and that as of the date of the election October27, 2014 that the office of city councillor of the City of Brampton wasforfeited and became vacant. The applicant also seeks an order removingthe respondent Medeiros from the office of city councillor and directingthat a by-election be held to allow the voters of the City of Brampton toelect a representative qualified to be elected to the Brampton CityCouncil.

9 Also within the application, the applicant seeks the injunctive reliefsought in the present motion.

10 The application is brought pursuant to s. 265 of the Municipal Act,2001 which provides as follows:

Application to court

265. (1) Any elector entitled to vote at the election of members of acouncil may apply to the Superior Court of Justice for a declaration


that the office of a member of the council has become vacant in ac-cordance with this Act. 2001, c. 25, s. 265 (1).

Judicial finding

(2) If the court finds that the office of a member of the council hasbecome vacant, it may order the member removed from office anddeclare the office vacant. 2001, c. 25, s. 265 (2).

Application of S.O. 1996, c. 32

(3) Subsection 83 (3) and sections 85, 86 and 87 of the MunicipalElections Act, 1996 apply to the application as if it were an applica-tion under section 83 of that Act. 2001, c. 25, s. 265 (3).

Combined application

(4) The application may be combined with an application under sec-tion 83 of the Municipal Elections Act, 1996, in which case the appli-cations shall be heard and disposed of together. 2001, c. 25, s. 265(4).

11 Notably, the legislation provides in s. 265(2) that if the court deter-mines that the office of a member of the council has become vacant, it“may” order the member removed from office and declare the office asvacant.

12 Section 259 of the Municipal Act, 2001 defines a vacant seat as fol-lows:

Vacant seat

259. (1) The office of a member of council of a municipality be-comes vacant if the member,

(a) becomes disqualified from holding the office of a member ofcouncil under section 256, 257 or 258;

(b) fails to make the declaration of office before the deadline insection 232;

(c) is absent from the meetings of council for three successivemonths without being authorized to do so by a resolution ofcouncil;

(d) resigns from his or her office and the resignation is effectiveunder section 260;

(e) is appointed or elected to fill any vacancy in any other officeon the same council;

(f) has his or her office declared vacant in any judicialproceeding;

(g) forfeits his or her office under this or any other Act; or


(h) dies, whether before or after accepting office and making theprescribed declarations. 2001, c. 25, s. 259 (1).

Exception

(2) Clause (1) (e) does not apply to vacate the office of a member ofan upper-tier council when the member is appointed head of councilif the composition of council requires or permits the member to holdboth offices. 2001, c. 25, s. 259 (2).

Dual vacancies

(3) If one of the offices of a person who is a member of council ofboth a local municipality and its upper-tier municipality becomes va-cant under this section, the other office also become vacant. 2001, c.25, s. 259 (3).

Exception

(4) Subsection (3) does not apply to vacate an office of a memberwhen another office of the member becomes vacant if the composi-tion of the councils does not require the member to hold both offices.2001, c. 25, s. 259 (4).

13 Although the applicant’s motion for the interim and interlocutory in-junction is supposedly based on the provisions of s. 265 of the MunicipalAct, 2001, s. 83 of the Municipal Elections Act, 1996 S.O. 1996, C. 32provides the substantive and procedural legislative basis for an elector tomake an application to the Superior Court of Justice for a determinationas to whether an election is valid and whether a person’s election to anoffice in the election is valid. Section 83 provides as follows:

Application

83. (1) A person who is entitled to vote in an election may make anapplication to the Superior Court of Justice requesting that itdetermine,

(a) whether the election is valid;

(b) whether a person’s election to an office in the election isvalid;

(c) if a person’s election to an office is not valid, whether anotherperson was validly elected or is entitled to the office;

(d) if an election is not valid or a person’s election to an office isnot valid, whether a by-election should be held. 1996, c. 32,Sched., s. 83 (1); 2002, c. 17, Sched. D, s. 34 (1).


Time

(2) The application shall be commenced within 90 days after votingday. 1996, c. 32, Sched., s. 83 (2).

Summary procedure

(3) The application shall be dealt with in a summary manner, withoutapplication records or factums. 1996, c. 32, Sched., s. 83 (3).

Service

(3.1) The applicant shall serve a copy of the application on the clerkor secretary of the municipality or local board to which the applica-tion relates within 5 days after the day the application was madeunder this section. 2002, c. 17, Sched. D, s. 34 (2).

No other avenue

(4) A proceeding to determine a matter described in clause (1) (a),(b), (c) or (d) may be commenced only under subsection (1). 1996, c.32, Sched., s. 83 (4).

Compensation

(5) If the court orders that a by-election be held, it may make suchorder as it considers just against a person whose act or omission un-lawfully affected the result of the election, for the compensation ofcandidates at that election. 1996, c. 32, Sched., s. 83 (5).

Effect of procedural irregularities

(6) The court shall not determine an election to be invalid if,

(a) an irregularity described in subsection (7) occurred at theelection but did not affect the result of the election; and

(b) the election was conducted in accordance with the principlesof this Act. 1996, c. 32, Sched., s. 83 (6).

Same

(7) Clause (6) (a) applies to the following irregularities:

1. An irregularity on the part of the clerk or in any of the proce-dures before voting day.

2. Failure to have a voting place open at the appointed locationand time.

3. Non-compliance with a provision of this Act or of a regula-tion, by-law, resolution or procedure made, passed or estab-lished under this Act, dealing with voting, counting of votesor time requirements.


4. A mistake in the use of forms, whether prescribed or not.1996, c. 32, Sched., s. 83 (7).

14 The respondent Medeiros, in opposing the present motion for injunc-tive relief, takes the position that the application and this motion are stat-ute barred, as the application was not commenced within 90 days afterthe voting day, namely October 27, 2014, as required by s. 83 (2) of theMunicipal Elections Act, 1996. Counsel for the applicant asserts that theapplication and the motion for injunctive relief are not governed by s. 83of the Municipal Elections Act, 1996, but rather by s. 256 of the Munici-pal Act, 2001.

15 Section 17(2) of the Municipal Elections Act, 1996 sets out to thequalifications for an elector who may be entitled to vote in a municipalelection and reads as follows:

Qualifications

(2) A person is entitled to be an elector at an election held in a localmunicipality if, on voting day, he or she,

(a) resides in the local municipality or is the owner or tenant ofland there, or the spouse of such owner or tenant;

(b) is a Canadian citizen;

(c) is at least 18 years old; and

(d) is not prohibited from voting under subsection (3) or other-wise by law. 2002, c. 17, Sched. D, s. 5 (2); 2005, c. 5, s. 46(1).

16 Section 2(1) and (2) define a person’s residence for the purposes ofthe Municipal Elections Act, 1996 and provides as follows:

Residence

2.(1)For the purposes of this Act, a person’s residence is the perma-nent lodging place to which, whenever absent, he or she intends toreturn. 1996, c. 32, Sched., s. 2 (1).

Rules

(2)The following rules apply in determining a person’s residence:

1. A person may only have one residence at a time.

2. The place where a person’s family resides is also his or herresidence, unless he or she moves elsewhere with the inten-tion of changing his or her permanent lodging place.

3. If a person has no other permanent lodging place, the placewhere he or she occupies a room or part of a room as a regu-


lar lodger or to which he or she habitually returns is his or herresidence. 1996, c. 32, Sched., s. 2 (2). (Emphasis added)

17 It was submitted on behalf of the respondent Medeiros that he was aperson entitled to be an elector within the meaning of s. 17 of the Muni-cipal Elections Act, 1996 and as such he was entitled to seek election as amember of a municipal council in accordance with ss. 256 and 257 ofthe, Municipal Act, 2001.

18 It was the position of the respondent that he met the residency re-quirements as set out in the definition in s. 2(2), under Rule 2 of theMunicipal Elections Act, 1996, on the basis that the affidavit evidencesubmitted by him demonstrates that, while he had a family residence inMississauga, which was occupied by his wife and children, he hadformed a plan in the spring of 2014 to move to Brampton. At the time hesubmitted his application as a candidate to run for municipal and regionalcouncil, he had left his matrimonial home at Derrydale and had taken upresidence with his parents at the Higgins address in Brampton.

19 Notably, respondent’s affidavit did not expressly state that it was hisintention to change his residence to Brampton on a permanent basis.

20 Counsel for the respondent the City of Brampton advised that it op-posed the granting of the injunctive relief sought.

21 It is well established that the granting of injunctive relief is governedby the principles set forth by the Supreme Court of Canada in its decisionin RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R.311 (S.C.C.). The court outlined the three stage test when considering anapplication for an interlocutory injunction.

22 Firstly, a preliminary assessment must be made as to the merits of thecase to ensure that there is a serious question to be tried. Secondly, itmust be determined whether the applicant would suffer irreparable harmif the application was refused and finally an assessment must be made asto which of the parties would suffer greater harm from the granting orrefusal of the remedy pending a decision on the merits.: RJR at para. 43.

23 As to the preliminary assessment as to whether there is a seriousquestion to be tried and that the claim is not frivolous or vexatious, Ihave concluded that the validity of the respondent’s election is a seriousquestion and the applicant’s assertions, on their face, do not appear to befrivolous or vexatious. However, on the conflicting and untested affidavitmaterial it is difficult to assess fully the strength of the applicant’s case.


24 The strength of the applicant’s case is also in question in that the sub-stantive and procedural route to be taken by him may more properly bepursuant to s. 83 of the Municipal Elections Act, 1996 as opposed to pur-suant to s. 265 of the Municipal Act, 2001. That being the case, it iscertainly arguable that the applicant’s right to make an application to thiscourt for a determination as to the validity of the respondent’s election isstatute barred pursuant to s. 83(2).

25 While there is said to be a presumption of regularity in that only indi-viduals who are entitled to vote have in fact received ballots, counseloffered no submissions as to whether the presumption of regularity ex-tends to the question of whether an individual who was an eligible elec-tor is therefore entitled to seek election as a councillor: Cusimano v.Toronto (City), 2012 ONCA 907 (Ont. C.A.) at paras.39-40.

26 Turning to the second consideration to be examined, namely whetherthe applicant would suffer irreparable harm if the application were re-fused, as noted by the court in RJR at para. 58:

At this stage the only issue to be determined is whether a refusal togrant relief could so adversely affect the applicant’s own intereststhat the harm could not be remedied if the eventual decision on themerits does not accord with the result of the interlocutoryapplication.

27 The applicant has offered no evidence that his own personal interestswould be adversely affected if his application for the injunction was dis-missed. The respondent Medeiros has deposed in his affidavit that as aRegional Councillor he has been involved in the Hurontario Light RailTransit (“LTR”) alignment debate, relating to the construction of a railtransit line connecting Port Credit, Mississauga with downtown Bramp-ton. He further states in his affidavit, which is not contradicted by theapplicant, that the applicant, as a resident of Brampton, has continuouslyvoiced his opposition to the LTR. While this is not openly put forward asevidence in the applicant’s affidavit material, this specific municipalquestion appears to underlie the application and the motion for the in-junctive relief.

28 If the applicant were to succeed on his application for injunctive re-lief, the respondent Medeiros would be deprived of an opportunity tovote and therefore in turn the citizens of Wards 3 and 4 would be de-prived of their vote as well.

29 On the other hand, if the applicant is denied the injunction sought, heis not left without recourse and a remedy, as it would be open to him to


apply to the Superior Court of Justice to have any bylaw enacted quashedfor illegality pursuant to s. 273 (1) of the Municipal Act, 2001.

30 With respect to the consideration of the balance of convenience, thescope of powers of a municipality, such as Brampton, that are considerednecessary or desirable in the public interest, are set forth in s. 11 of theMunicipal Act, 2001. It is specifically provided in s. 11(3) that a munici-pality may pass bylaws respecting various matters within the sphere ofits jurisdiction including with respect to highways and transportation sys-tems: s. 11 (3) subparts 1 and 2.

31 The applicant is a private citizen claiming to be asserting a publicinterest claim against the respondents. The court in RJR MacDonaldstated at para. 68 as follows:

68. When a private applicant alleges that the public interest is at riskthat harm must be demonstrated. This is since private applicants arenormally presumed to be pursuing their own interests rather thanthose of the public at large. In considering the balance of conve-nience and the public interest, it does not assist an applicant to claimthat a given government authority does not represent the public inter-est. Rather, the applicant must convince the court of the public inter-est benefits which will flow from the granting of the relief sought.

32 The court further stated that in considering the balance of conve-nience and irreparable harm factors in cases involving public authorities,the onus of demonstrating irreparable harm to the public interest is lessthan that in the case of a private applicant: see RJR MacDonald at para71.

33 Further, regarding the considerations in assessing the balance of con-venience, it has been held that if injunctive relief is granted and allowedto stay in place without having a determination on the merits, as in thiscase as to the validity of the election of the respondent Medeiros, theapplicant would essentially be granted the ultimate relief he is seeking inhis application before any adjudication on that question by a court. Theproper purpose of an interlocutory injunction is to preserve or restore thestatus quo, not to give the plaintiff his remedy until trial: Gould v.Canada (Attorney General), [1984] 2 S.C.R. 124 (S.C.C.); Hurley v.Canada (Chief Electoral Officer), [1988] O.J. No. 1836 (Ont.H.C.); Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764(S.C.C.) at paras. 6 - 11.


34 The applicant has failed to put forward any evidence to support theassertion that his purpose in seeking the injunction is to advance the pub-lic interest of the citizens of Brampton.

35 Balancing the private interests, as asserted by the applicant, with thepublic interests at stake in allowing Brampton to carry out its municipalduties, and in preserving the public’s interest in the conduct of municipalbusiness, including the involvement of the respondent Medeiros in that, Ihave concluded that the balance of convenience favours both of therespondents.

36 For these reasons, I have concluded that the applicant’s motion forthe interim and interlocutory injunction must be dismissed.

Motion dismissed.


[Indexed as: Danaher c. Sherbrooke (Ville)]

Kevin Joseph Danaher (Demandeur) c. Ville de Sherbrooke(Defenderesse) et Procureur general du Quebec et Simon

Homans (Mis en cause)

Maurice Gagnon (Requerant) c. Simon Homans et 9202-2680Quebec inc. (Intimes) et Ville de Sherbrooke (Mise en cause)

Cour superieure du Quebec

Docket: C.S. Saint-Francois 450-17-004325-115, 450-17-004218-112

2015 QCCS 3127

Samoisette, J.C.S.

Heard: 7-11 avril 2014; 6-7 mai 2014

Judgment: 7 juillet 2015

Droit municipal –––– Reglements municipaux — Adoption — Divers ––––Exigence d’un certificat de conformite — En 1993, une municipalite a adopte unreglement de zonage en vue de la construction d’une piste d’atterrissage sur sonterritoire a cote d’une zone residentielle — Au milieu des annees 90, unpromoteur a commence a organiser des courses de motocross et de voitures ainsique des derbys de demolition sur le site initialement prevu pour l’atterrissaged’avions — A chaque annee, le promoteur demandait et obtenait un permis avecusage derogatoire de la municipalite — En 2008, le terrain ou les coursesavaient lieu a ete vendu a un pilote professionnel — Plus tard, le pilote profes-sionnel a appris qu’aucun certificat de conformite n’avait ete emis relativementau reglement de zonage — En 2011, la municipalite a finalement demande etobtenu un certificat de conformite au sujet du reglement de zonage — Fermier adepose une requete visant a faire declarer que le reglement municipal n’estjamais entre en vigueur puisqu’aucune analyse de conformite n’a ete faite —Citoyen a depose une requete visant a obtenir une injonction permanente in-terdisant au pilote professionnel d’organiser des courses de motocross — Re-quetes rejetees — Fermier avait l’interet requis pour contester la validite dureglement municipal — Bien que la preuve revelat que la municipalite avaitomis de demander un certificat de conformite lorsqu’elle a initialement adopte lereglement, elle l’a fait des qu’elle a ete informee de ce defaut, bien que cela soitarrive plus de 17 ans plus tard — Defaut de la municipalite n’a eu aucun impactnegatif sur le processus de consultation publique — Preuve demontraitqu’aucune partie n’avait subi de prejudice a la suite de ce defaut et que leprocessus democratique avait ete respecte — Exigence d’obtenir un certificat deconformite pouvait etre consideree comme une simple formalite, et le defaut de

Danaher c. Sherbrooke (Ville) 287

satisfaire a cette exigence ne devrait pas avoir pour consequence d’invalider lereglement — Par consequent, le reglement a ete validement adopte et etait envigueur.

Reparations –––– Injonctions — Regles regissant les injonctions — Naturediscretionnaire de l’injonction — Exercice de la discretion –––– En 1993, unemunicipalite a adopte un reglement de zonage en vue de la construction d’unepiste d’atterrissage sur son territoire a cote d’une zone residentielle — Au milieudes annees 90, un promoteur a commence a organiser des courses de motocrosset de voitures ainsi que des derbys de demolition sur le site initialement prevupour l’atterrissage d’avions — A chaque annee, le promoteur demandait etobtenait un permis avec usage derogatoire de la municipalite — En 2008, le ter-rain ou les courses avaient lieu a ete vendu a un pilote professionnel — Plustard, le pilote professionnel a appris qu’aucun certificat de conformite n’avait eteemis relativement au reglement de zonage — En 2011, la municipalite a finale-ment demande et obtenu un certificat de conformite au sujet du reglement dezonage — Fermier a depose une requete visant a faire declarer que le reglementmunicipal n’est jamais entre en vigueur puisqu’aucune analyse de conformiten’a ete faite — Citoyen a depose une requete visant a obtenir une injonctionpermanente interdisant au pilote professionnel d’organiser des courses demotocross — Requetes rejetees — Citoyen avait l’interet requis pour demanderune injonction permanente — Preuve revelait que le pilote professionnel avaitagi de bonne foi et avait cherche a se conformer aux exigences de la municipal-ite — Preuve revelait que le citoyen n’avait dans les faits subi aucun prejudiceen lien avec la piste de course — Exercant son pouvoir discretionnaire, le tribu-nal a conclu que le pilote professionnel devrait etre autorise a organiser descourses sur le site — Toutefois, la preuve revelait qu’une partie de la piste em-pietait sur une zone residentielle — Par consequent, le pilote professionnel a etecondamne a enlever la partie du site qui empietait sur la zone residentielle et aconstruire un ecran vegetal.

Droit municipal –––– Zonage — Usage derogatoire legal — Divers –––– Em-pietement sur une zone residentielle — En 1993, une municipalite a adopte unreglement de zonage en vue de la construction d’une piste d’atterrissage sur sonterritoire a cote d’une zone residentielle — Au milieu des annees 90, unpromoteur a commence a organiser des courses de motocross et de voitures ainsique des derbys de demolition sur le site initialement prevu pour l’atterrissaged’avions — A chaque annee, le promoteur demandait et obtenait un permis avecusage derogatoire de la municipalite — En 2008, le terrain ou les coursesavaient lieu a ete vendu a un pilote professionnel — Plus tard, le pilote profes-sionnel a appris qu’aucun certificat de conformite n’avait ete emis relativementau reglement de zonage — En 2011, la municipalite a finalement demande etobtenu un certificat de conformite au sujet du reglement de zonage — Fermier adepose une requete visant a faire declarer que le reglement municipal n’est


jamais entre en vigueur puisqu’aucune analyse de conformite n’a ete faite —Citoyen a depose une requete visant a obtenir une injonction permanente in-terdisant au pilote professionnel d’organiser des courses de motocross — Re-quetes rejetees — Citoyen avait l’interet requis pour demander une injonctionpermanente — Preuve revelait que le pilote professionnel avait agi de bonne foiet avait cherche a se conformer aux exigences de la municipalite — Preuve reve-lait que le citoyen n’avait dans les faits subi aucun prejudice en lien avec la pistede course — Exercant son pouvoir discretionnaire, le tribunal a conclu que lepilote professionnel devrait etre autorise a organiser des courses sur le site —Toutefois, la preuve revelait qu’une partie de la piste empietait sur une zoneresidentielle — Par consequent, le pilote professionnel a ete condamne a enleverla partie du site qui empietait sur la zone residentielle et a construire un ecranvegetal.

Municipal law –––– By-laws — Enactment — Miscellaneous –––– Require-ment of compliance certificate — In 1993, municipality adopted zoning by-lawfor construction of landing strip on its territory next to residential zone — Inmid-1990s, promoter started to organize motocross and car races as well as dem-olition Derbies on site originally intended for aircraft landings — Each year,promoter requested and was granted non-conforming use permit by municipal-ity — In 2008, land where races were held was sold to professional pilot —Later, professional pilot was informed that no compliance certificate had beenissued with respect to zoning by-law — In 2011, municipality finally sought andwas granted compliance certificate with respect to zoning by-law — Farmerbrought motion seeking declaration that municipality’s by-law never came intoforce because compliance analysis had not been conducted — Citizen broughtmotion seeking permanent injunction prohibiting professional pilot from or-ganizing motocross races — Motions dismissed — Farmer had standing to chal-lenge validity of municipal by-law — While evidence showed that municipalityfailed to seek compliance certificate when it first passed by-law, it did so assoon as it was made aware of this failure, albeit more than 17 years later —Municipality’s failure did not affect public consultation process — Evidenceshowed that no party suffered any prejudice as result of this failure and thatdemocratic process was followed — Requirement to seek compliance certificatecould be considered as mere formality and failure to do so should not invalidateby-law — Therefore, by-law was validly passed and was in force.

Remedies –––– Injunctions — Rules governing injunctions — Discretionarynature of injunction — Exercise of discretion –––– In 1993, municipalityadopted zoning by-law for construction of landing strip on its territory next toresidential zone — In mid-1990s, promoter started to organize motocross andcar races as well as demolition Derbies on site originally intended for aircraftlandings — Each year, promoter requested and was granted non-conforming usepermit by municipality — In 2008, land where races were held was sold to pro-

Danaher c. Sherbrooke (Ville) 289

fessional pilot — Later, professional pilot was informed that no compliance cer-tificate had been issued with respect to zoning by-law — In 2011, municipalityfinally sought and was granted compliance certificate with respect to zoning by-law — Farmer brought motion seeking declaration that municipality’s by-lawnever came into force because compliance analysis had not been conducted —Citizen brought motion seeking permanent injunction prohibiting professionalpilot from organizing motocross races — Motions dismissed — Citizen hadstanding to seek permanent injunction — Evidence showed that professional pi-lot acted in good faith and sought to comply with municipality’s require-ments — Evidence showed that citizen actually suffered no prejudice with re-spect to racing track — Using its discretionary power, Court held thatprofessional pilot should be authorized to organize races on site — However,evidence showed that part of track encroached on residential zone — Therefore,professional pilot was ordered to remove part of site encroaching on residentialzone and to build plant screen.

Municipal law –––– Zoning — Legal non-conforming use — Miscellane-ous –––– Encroachment on residential zone — In 1993, municipality adoptedzoning by-law for construction of landing strip on its territory next to residentialzone — In mid-1990s, promoter started to organize motocross and car races aswell as demolition Derbies on site originally intended for aircraft landings —Each year, promoter requested and was granted non-conforming use permit bymunicipality — In 2008, land where races were held was sold to professionalpilot — Later, professional pilot was informed that no compliance certificatehad been issued with respect to zoning by-law — In 2011, municipality finallysought and was granted compliance certificate with respect to zoning by-law —Farmer brought motion seeking declaration that municipality’s by-law nevercame into force because compliance analysis had not been conducted — Citizenbrought motion seeking permanent injunction prohibiting professional pilot fromorganizing motocross races — Motions dismissed — Citizen had standing toseek permanent injunction — Evidence showed that professional pilot acted ingood faith and sought to comply with municipality’s requirements — Evidenceshowed that citizen actually suffered no prejudice with respect to racing track —Using its discretionary power, Court held that professional pilot should be au-thorized to organize races on site — However, evidence showed that part oftrack encroached on residential zone — Therefore, professional pilot was or-dered to remove part of site encroaching on residential zone and to build plantscreen.

Cases considered by Samoisette, J.C.S.:

Bland c. Ste-Anne de Bellevue (Ville) (1980), 1980 CarswellQue 1102 (C.S.Que.) — referred to

Boily c. Belanger (1989), [1989] R.J.Q. 572, 33 Q.A.C. 150, 1989 CarswellQue309 (C.A. Que.) — referred to


Cousineau c. Boucherville (Ville) (1985), [1986] R.J.Q. 318, 1985 CarswellQue316 (C.S. Que.) — considered

Hoppenheim c. Montreal (Ville) (2004), 2004 CarswellQue 398, REJB 2004-52409 (C.S. Que.) — considered

Hoppenheim c. Montreal (Ville) (2006), 2006 QCCA 945, EYB 2006-107667,2006 CarswellQue 5928 (C.A. Que.) — referred to

Hoppenheim c. Montreal (Ville) (2007), 2007 CarswellQue 950, 2007 Carswell-Que 951, (sub nom. Al-Musawi v. Montreal) 367 N.R. 391 (note) (S.C.C.) —referred to

Immeubles Port Louis Ltee c. Lafontaine (Village) (1991), 5 M.P.L.R. (2d) 1, 78D.L.R. (4th) 175, [1991] 1 S.C.R. 326, 38 Q.A.C. 253, 121 N.R. 323, 1991CarswellQue 44, 1991 CarswellQue 100, EYB 1991-67741, [1991] S.C.J.No. 14 (S.C.C.) — considered

L’Islet (Municipalite) c. Adam (2010), 2010 QCCA 215, EYB 2010-169264,2010 CarswellQue 759, [2010] R.D.I. 12 (C.A. Que.) — considered

Perreault c. Bouchard (1990), 1990 CarswellQue 1377, EYB 1990-77041 (C.S.Que.) — referred to

Pierrefonds (Ville) c. Chapdelaine (2003), 2003 CarswellQue 827, (sub nom.Montreal (Ville) c. Chapdelaine) [2003] R.J.Q. 1417, 47 M.P.L.R. (3d) 162,REJB 2003-40960, [2003] J.Q. No. 4363 (C.A. Que.) — considered

Senneville (Village) c. David (1990), 1990 CarswellQue 1376, EYB 1990-77040(C.S. Que.) — considered

Tremblay c. Trottier (2004), 2004 CarswellQue 1610, REJB 2004-66519 (C.A.Que.) — considered

Trudeau c. Pierres St-Hubert inc. (2001), 2001 CarswellQue 360, REJB 2001-23074, [2001] J.Q. No. 944 (C.A. Que.) — referred to


Amenagement et l’urbanisme, Loi sur l’, RLRQ, c. A-19.1en general — referred toart. 137.2 [ad. 1993, c. 3, art. 66] — consideredart. 137.2 ¶ 1 [ad. 1993, c. 3, art. 66] — consideredart. 137.2-137.4 [ad. 1993, c. 3, art. 66] — referred toart. 137.3 [ad. 1993, c. 3, art. 66] — consideredart. 137.4 [ad. 1993, c. 3, art. 66] — consideredart. 137.10 [ad. 1993, c. 3, art. 66] — consideredart. 137.10-137.14 [ad. 1993, c. 3, art. 66] — referred toart. 137.11 [ad. 1993, c. 3, art. 66] — consideredart. 137.12 [ad. 1993, c. 3, art. 66] — consideredart. 137.13 [ad. 1993, c. 3, art. 66] — consideredart. 137.14 [ad. 1993, c. 3, art. 66] — consideredart. 246.1 [ad. 1993, c. 3, art. 87] — consideredart. 227 — referred to

Danaher c. Sherbrooke (Ville) Samoisette, J.C.S. 291

Cites et villes, Loi sur les, RLRQ, c. C-19art. 11 — referred toart. 397 — considered

Code de procedure civile, RLRQ, c. C-25art. 453 — considered

Code municipal du Quebec, RLRQ, c. C-27.1art. 23 — referred to

REQUETE deposee par un fermier visant a faire declarer invalide un reglementmunicipal en raison du defaut de la municipalite d’obtenir un certificat de con-formite; REQUETE deposee par un citoyen visant a obtenir une injonctionpermanente afin de faire cesser les activites de course de motocross sur le terrainvise par le reglement.

Me Melanie St-Onge, Me Alexandre Auger, pour Kevin Joseph Danaher etMaurice Gagnon

Me Eric Martel, pour la Ville de SherbrookeMe Guy Achim, pour Simon Homans et 9202-2680 Quebec inc.

Samoisette, J.C.S.:

1 Deux recours ont ete reunis.2 Le premier est une requete pour jugement declaratoire relatif a la con-

formite du reglement n° 297 de la municipalite de St-Elie-d’Orford. Cerecours contre la ville de Sherbrooke (la Ville) vise a faire declarer quece reglement n’est jamais entre en vigueur parce qu’il n’a jamais faitl’objet d’une analyse de conformite au schema d’amenagement de laMRC. Les conclusions de la requete se lisent:

DIRE et DECLARER que la demande d’avis de conformite n’ajamais ete faite dans le delai prevu a la Loi sur l’amenagement etl’urbanisme c’est-a-dire le plus tot possible;

DIRE et DECLARER que ce delai « le plus tot possible » est uneformalite essentielle et d’ordre public;

DIRE et DECLARER, en consequence, que le reglement n° 297 de laMunicipalite de Saint-Elie-d’Orford, adopte les 1er et 29 novembre1993, n’est jamais entre en vigueur et n’est pas en vigueur;

DIRE et DECLARER que l’avis d’adoption publie le 13 avril 2011par la Ville de Sherbrooke en rapport avec le reglement n° 297 n’apas eu pour effet de mettre en vigueur le reglement n° 297 adopte les1er et 29 novembre 1993 par la municipalite de Saint-Elie-d’Orford;

RENDRE toute autre ordonnance jugee utile dans les circonstances;


3 Le Procureur general du Quebec et Simon Homans (Homans) ont etemis en cause et seul ce dernier a comparu.

4 Le deuxieme recours est une demande d’injonction permanente sui-vant l’article 227 de la Loi sur l’amenagement et l’urbanisme1 (LAU) al’encontre de Homans et de la compagnie 9202-2680 Quebec inc. dontHomans est l’unique actionnaire2 afin qu’ils cessent les activites liees ausite de competition de vehicules motorises, et plus particulierement, enrapport avec les bruits concernant le motocross.

5 La Ville a comparu dans cette affaire a titre de mise en cause.

CONTEXTE6 La construction d’une piste d’atterrissage en 1993 est a l’origine de

l’adoption du reglement n° 297 par la municipalite de St-Elie-d’Orford(la Municipalite). Pour mieux comprendre le contexte qui a mene 17 ansplus tard a l’analyse de la conformite de ce reglement puis a la demanded’injonction permanente, il importe de tracer l’historique de l’adoptiondu reglement n° 297 et de reprendre les faits pertinents survenus de 1993jusqu’a l’exploitation actuelle du site par Homans.

7 Passionne par le pilotage d’avion, Gerard Furse (Furse) a achete ungrand terrain dans la Municipalite pour y construire une pisted’atterrissage dans le but eventuellement d’y construire un aeroport.

8 Apres que la Municipalite lui ait delivre un permis, Furse a construitune piste sur une longueur d’environ 2 300 pieds avec une pente de 7%d’est en ouest et de 3% du nord au sud suivant, dit-il, des normes etab-lies. Le 20 avril 1993, la Municipalite lui a egalement accorde un permispour construire un hangar, ce qu’il a fait des les mois de mai et juinsuivants.

9 Le 24 juillet 1993, la piste a ete inauguree en presence du maire del’epoque Richard Gingras ainsi que deux conseillers Germain Provencheret Denis Laverdure3. Cette piste servira eventuellement aux coursesd’acceleration. Nous y reviendrons.

10 Apres la construction de la piste et du hangar, la Municipalite a man-date Rene Allaire, directeur du service d’amenagement et d’urbanisme

1 Loi sur l’amenagement et l’urbanisme, RLRQ c A-19.1, articles 137.2 a 137.4.2 Piece P-18.3 Piece DR-26.


chez Amenatech, afin qu’il prepare un plan divisant en deux la zone re-sidentielle RE-52 pour creer la zone commerciale C-53 ou se trouve lapiste d’atterrissage. Ce plan a ete finalise et transmis a la Municipalite.La zone C-53 est un peu moins large que la zone RE-52.

Adoption du reglement n° 29711 Le 20 octobre 1993, lors d’une seance extraordinaire du conseil de la

Municipalite, un avis de motion a ete donne pour amender le reglementde zonage nº 234 concernant la creation de la zone C-534.

12 Le 1er novembre suivant, lors d’une seance ordinaire de la Municipal-ite, il a ete resolu a l’unanimite d’adopter le projet de reglement nº 297 etde fixer la date de l’assemblee de consultation publique au 29 novembre1993 a 19 h 305. L’avis a cet effet a ete publie par la Municipalite.

13 Le 29 novembre 1993, la Municipalite a adopte le reglement nº 2976.Un avis public a cet effet a ete publie par la Municipalite le 30 novembre19937. Le 1er decembre 1993, un autre avis public a ete publie pouraviser les personnes domiciliees dans les zones contigues a la zone C-53,soit RE-52, RE-14, RE-16 et RE-23, qu’elles pouvaient presenter une de-mande dans les cinq jours de la publication de l’avis afin de participer ala procedure d’enregistrement8.

14 Le 8 decembre 1993, un autre avis public a ete publie pour aviser lespersonnes habiles a voter de la tenue d’un registre accessible de 9 h a19 h, le 13 decembre 19939. Le 13 decembre 1993, aucune signaturen’ayant ete obtenue pour la tenue d’un scrutin referendaire, le reglementnº 297 est consequemment repute approuve par les personnes habiles avoter10. Le 14 decembre 1993, la Municipalite a publie un avis publicconfirmant l’approbation du reglement nº 297 et l’entree en vigueur de cereglement11.

4 Piece P-1.5 Piece P-2.6 Piece P-4.7 Piece P-5.8 Piece P-6.9 Piece P-7.10 Piece P-9.11 Piece P-8.


15 Les parties reconnaissent que la Municipalite a adopte ce reglement,et qu’elle a omis de demander le certificat de conformite a la MRC de laregion sherbrookoise, tel que le requiert l’article 137.2 de la LAU. Cen’est qu’en 2010 que le probleme sera souleve pour la premiere fois.

16 Soulignons que depuis la fusion du 1er janvier 2002, la Municipalitefait partie de la Ville, cette derniere succedant ainsi aux droits, obliga-tions et charges de la Municipalite12. A la meme date, la Ville estdevenue ville MRC.

Activites de 1993 a 200217 Des activites de decollage et d’atterrissage sur la piste ont eu lieu en-

tre 1993 et 1995-96. En 1994, Furse a loue la piste a un promoteur pourune course de motos13 et en 1995, il a remplace son avion par unhelicoptere.

18 En 1998, Furse a loue son site pour la presentation d’evenements dontun concernant le club Harley14, puis d’autres courses les 23 aout et 6septembre 199815. Parallelement a ces activites, la Municipalite lui aemis un permis pour la construction d’une remise de 16’ x 12’ derriere lehangar, ainsi qu’un permis de lotissement pour un developpement im-mobilier sur le terrain residentiel adjacent. Ce dernier projet n’a pas vu lejour, sauf pour la « rue projetee », qui elle a ete construite vers 1998-1999.

19 En 1999, Furse a choisi de devenir lui-meme promoteur de courses16.Il evalue qu’il y avait alors une assistance d’environ 1 000 a 2 000 per-sonnes, parfois meme jusqu’a 2 500. Aussi, l’annee suivante, au lieu delouer les gradins, il en a construit cinq de 40’ de longueur pouvant ac-cueillir environ 150 personnes chacun. En 2001, il en a construit cinqautres.

20 En 2000, la Municipalite a recu des commentaires negatifs par descitoyens concernant le bruit. Furse a fait une demande a la Ville pourclarifier son statut eu egard au zonage parce qu’il voulait faire une piste

12 Loi sur l’organisation territoriale municipale, RLRQ, c. O-9, art. 136.13 Pieces DR-31 et D-32, photos 1 a 3.14 Piece DR-34.15 Piece DR-33 et DR-35.16 Piece DR-36 et DR-36, 1, 2 et 3, DR-37, DR-38, 1 et 2..


d’acceleration. Il avait su que son exploitation etait situee dans une zonede commerces de details et de services contraignants.

21 L’inspecteur Jocelyn Tremblay de la Ville a demande a l’urbanisteYves Tremblay d’effectuer des verifications et de lui transmettre sesrecommandations. Le 20 mars 2000, l’urbaniste lui ecrit pour lui fairepart de sa position17:

(. . .)

En appliquant l’article 7.8 du reglement de zonage, l’usage piste decourse se retrouve donc a l’interieur de la famille d’usage « com-merce de detail et de services contraignants » et donc permis al’interieur de la zone C-53. Toutefois, il faut s’assurer que les dispo-sitions de l’article 7.8 du reglement de zonage s’applique (sic) ici aulong et en toute conformite avant de pouvoir pretendre que l’usage depiste de course est autorise dans la zone en question.

22 L’article 7.8 du reglement de zonage n° 234 se lit18 :7.8 Dispositions particulieres concernant les commerces de gros et demateriaux de recuperation et les champs de vehicules motorises

Aucun cimetiere d’automobiles, de pieces, ni de cour de rebuts, nicour de triage de metaux usages, ni de champ de course de vehiculesmotorises ne sont autorises sur le territoire de la municipalite, amoins de repondre aux exigences suivantes :

1- Le territoire doit etre situe a plus de 1 000 metres du perime-tre d’urbanisation.

2- Le terrain doit etre situe a une distance de 150 metres ou plusde tout chemin public et de tout cours d’eau.

3- Le terrain doit etre situe a une distance de 300 metres ou plusde toute residence.

4- De plus, le proprietaire devra eriger un ecran vegetal dans unezone de 10 metres autour de son terrain. Pour chaque 30 me-tres lineaires de facade de terrain a amenager, l’ecran vegetaldoit comprendre un minimum de 20 arbres coniferes (al’exception du meleze) d’un minimum de 2 metres de hauteuret 8 arbres feuillus d’un minimum de 6 centimetres de diame-tre, mesure a 30 centimetres au-dessus du niveau du sol.

5- Tout arbre ou arbuste en sante existant dans la bande de ter-rain a amenager qui satisfait aux conditions exigees ci-dessus,

17 Piece DR-24.18 Piece DR-19.


peut etre inclus dans le nombre total d’arbres ou d’arbustes aobtenir pour l’ecran vegetal. Une fois amenage, l’ecran vege-tal doit etre laisse a l’etat naturel. Cet ecran ne peut etre situesur l’emprise d’une rue publique ou privee.

23 Sur reception de la lettre de l’inspecteur Tremblay, le comite con-sultatif d’urbanisme (CCU) a adopte une resolution afin de permettrel’activite puisque le zonage permet l’usage et voir a faire appliquerl’article 7.8 du reglement concernant les pistes de course19.

24 L’inspecteur Tremblay s’est rendu sur place et a pris des mesures.Furse etait present, mais ne l’a pas toujours suivi. L’inspecteur lui a alorsdemande de deplacer le depart, les gradins et de planter 680 arbres enarriere du depart, ce qu’il a fait. Furse a egalement erige un monticule deterre de 20 pieds de hauteur derriere l’ecran vegetal pour couper le son20.

25 Le 4 aout 2000, l’inspecteur Tremblay a transmis une lettre a Fursedont l’objet est intitule « l’autorisation pour piste d’acceleration ». Cettelettre se lit21 :

Comme suite a votre demande, je vous confirme que l’activite ex-ercee sur votre propriete est conforme a la reglementation de lamunicipalite. Etant donne la conformite de l’activite, le conseil n’apas a adopter de resolution a cet effet.

Vous trouverez donc ci-joint, un extrait du proces verbal du comited’urbanisme date du 20 mars 2000 et recommandant d’accepterl’activite jugee conforme a la reglementation.

Ce proces verbal a par la suite ete depose et reconnu par les membresdu conseil.

De 2002 a 200826 Consequemment, Furse a continue ses activites. Vers 2002, il a

amenage un « chemin de retour » pour les coureurs automobiles22.27 Vers 2002-2003, des citoyens se sont plaints d’inconvenients en

raison du bruit. Yvon Gamache, inspecteur de la Ville s’en souvient,mais ne se rappelle pas s’etre rendu sur le site, et si oui, ce ne serait quetres sommairement. Le 13 mai 2003, il a prepare un court rapport avec

19 Piece DR-23.20 Piece I-2.21 Piece DR-21.22 Piece I-2.


trois plans qui indiquent, entre autres, le debut de la piste. Il a fait lecalcul des distances qui concordaient avec la cartographie23 :

REPRESENTATIONS

Suite aux representations faites par les citoyens et a l’autorisation de-mandee par Monsieur Gerard Furse, proprietaire de la firme « Sportsmotorises St-Elie », ce dossier a ete analyse et nous en sommes ve-nus a la conclusion suivante:

REGLEMENTATION

Au moment de l’amenagement de la piste de courses, cette proprieteetait localisee dans la zone C-53 et l’usage « COMMERCE DE DE-TAIL ET DE SERVICES CONTRAIGNANT (sic) » y etait autorisepar le reglement de zonage no. 234. Cependant. l’article 7.8 de cememe reglement enumerait des dispositions particulieres telles:

-une distance de 1 000 metres du perimetre d’urbanisation.

-une distance de 150 metres d’un chemin public,

-une distance de 300 metres de toute residence,

-l’obligation d’eriger un ecran vegetal.

Il a ete convenu de calculer les distances depuis l’endroit du departdes courses et comme toutes les dispositions etaient respectees,l’administration municipale a emis l’autorisation.

La reglementation n’ayant pas ete modifiee depuis, les meme (sic)normes et reglements sont toujours en application aujourd’hui.

CONCLUSION

Nous pouvons conclure que cet usage est conforme a la reglementa-tion en vigueur a l’exception des deux points suivants pour lesquelsnous devrons intervenir:

-L’ecran vegetal exige au moment de l’amenagement n’a pas resisteaux intemperies. Il devra etre complete ou remplace.

-La section de la piste preparatoire au depart et localisee a moins de300 metres des residences ne doit pas etre utilisee de facon a genererdes bruits.

(nos soulignements)

28 Jusqu’en 2004, Furse a presente entre cinq a sept evenements par an-nee, soit course de motos, d’autos ou de demolition. Chaque annee, ildemandait l’autorisation a la Ville et celle-ci lui accordait un permis avecusage derogatoire. A partir de 2004, il a presente environ quatre evene-

23 Piece DR-27.


ments la fin de semaine puis les vendredis entre 19 h et 22 h, du moisd’avril au mois de novembre. Les courses n’avaient pas lieu lorsqu’ilpleuvait. En 2005, il a installe un« sensor » sur la piste d’acceleration.

29 En fevrier 2006, Furse projetait d’implanter une piste ovale, la ou setrouve aujourd’hui la piste de motocross. L’annee suivante, il a consulteun avocat parce qu’il souhaitait augmenter la superficie de la zone ou ilvoulait implanter la piste ovale. C’est alors que, dit-il, il a vu pour lapremiere fois la « ligne jaune », c’est-a-dire, la ligne separant la zone C-53 de la zone RE-52. Finalement, ce projet ne sera pas concretise.

Vente du terrain a Homans30 Le mis en cause Homans a ete pilote professionnel de motocross a

travers le Canada pendant 10 ans, soit jusqu’a ? 2008. Depuis son jeuneage, il s’entraınait chez ses parents sur un terrain de 12 acres sis dans laMunicipalite. Il s’entraınait egalement chez son voisin qui avait une terrede 50 acres.

31 Vers 2006-2007, ses parents ont ete informes par la Ville de certainesplaintes et Homans a du arreter l’entraınement a cet endroit.

32 En 2007, il a appris que le terrain de Furse, situe a environ cinqkilometres du domicile de ses parents, etait possiblement a vendre. Con-siderant qu’il avait besoin d’une piste d’entraınement, il a ete le rencon-trer, mais Furse n’etait pas pret a vendre.

33 Homans a ete rencontre l’inspecteur Yvon Gamache et l’urbanistePierre Lapointe, tous deux employes de la Ville, pour obtenir certainesinformations.

34 En 2008, Furse a accepte de vendre le terrain a Homans.35 Le 2 octobre 2008, Homans a presente une demande de permis a la

Ville pour construire une piste de motocross et a la demande del’inspecteur Gamache, il a lui-meme fait un croquis de l’endroit.L’inspecteur Gamache se souvient du depot de cette demande. Il n’avaitpas requis de certificat de localisation.

36 Des le lendemain, le 3 octobre 2008, la Ville a emis le permis pourl’amenagement d’une piste de motocross et de « quad » sur lequel il estecrit : « la piste de course et toutes ses composantes (voies d’acces, sta-tionnements. . .) doivent etre a l’interieur de la zone commerciale »24.

24 Piece DR-17.


37 Quoi qu’il en soit, le meme jour que l’emission du permis, Furse etHomans ont signe un document afin que Homans puisse presenter unedemande de permis a la Ville pour la construction d’une piste demotocross et quatre roues (VTT)25:

38 Homans se rappelle avoir vu un plan avec Furse. Il savait qu’agauche, il y avait la zone residentielle RE-52 et que la zone commercialeC-53 etait plus etroite.

39 Homans voulait commencer les travaux a l’automne 2008. Ilsouhaitait continuer l’exploitation de la piste d’acceleration deja en placeet il voulait se depecher a construire la piste pour motocross et VTT afind’y pratiquer son sport et d’y accueillir d’autres gens passionnes commelui des le printemps suivant. Entre octobre et novembre 2008, il a doncconstruit la piste de motocross.

40 Le terrain C-53 est beaucoup plus long que large. Aussi, la piste demotocross se situe au sud de la propriete, plus loin que la pisted’acceleration. Pour acceder a la piste de motocross, les amateurs ontutilise la « rue projetee » jusqu’en 2011 et depuis, ils utilisent le cheminde retour qui sert aux coureurs automobiles.

41 Le contrat d’achat du terrain a ete signe devant notaire au mois dejanvier 2009 et l’achat a ete finance en partie par Furse26.

42 La saison 2009 a debute au mois de mai pour se terminer au debut dumois de novembre. L’horaire etait le mercredi de 15 h jusqu’a la noirceurainsi que les samedis et dimanches de 10 h a 16 h. Lorsqu’il y a desactivites de motocross, il n’y a pas de courses de « drags ».

43 Quant a la piste d’acceleration, Homans souligne qu’il faut minimale-ment une longueur de 3 000 pieds pour qu’elle soit reglementaire. Il aprepare un document afin d’expliquer les differentes etapes d’une coursed’acceleration communement appelee « course de drag »27. :

1- Passage pour aller d’un cote ou de l’autre de la piste de drag. Nefait pas partie de la course, ceci est plutot un acces securitaire pourtraverser la piste. 50 pieds.

2- Lignes d’attentes, quatre voies de large sur 330 pieds.

25 Piece DR-17.26 Piece P-19.27 Piece DR-46-1.


3- Zone d’alignement. Nous passons ici de quatre voies de large adeux. La course ce (sic) fait toujours a deux. Les voitures doiventdonc ce (sic) mettre bien dans l’axe de la piste pour la course. 85pieds.

4- « Boite a l’eau », pour que les pneus soient un peu mouilles, ce quiaide a la prochaine etape qui est le rechauffement des pneus : 20pieds.

5- Rechauffement des pneus et approche a la ligne de depart : 85pieds.

6- La course, du depart a l’arrivee 660 pieds (il y a deux standardsdans l’industrie, 1/8 de mile, 660 pieds ou 1/4 de mile, 1 320 pieds).Des senseurs sont positionnes au depart et a l’arrivee de la course.

7- Zone de deceleration et de freinage. Le standard est le double de lacourse (1 320 pieds pour une course de 1/8 de mile et 2 640 piedspour une course de 1/4 mile). Mais dans notre cas nous n’avons que1200 pieds ce qui est un peu court. Ceci est du au fait que nous avonsdu avancer le depart il y a plusieurs annees pour etre conforme auxdemandes de la ville. Un inspecteur municipal nous a indique oudevait etre le depart.

8- Zone de d’urgence 550 pieds, si un pilote a un probleme etn’arrive pas a s’arreter avant la fin de la piste il doit y avoir unecertaine distance au bout de la piste pour sa securite. Surtout quechez nous la zone de freinage est reduite. A noter que les materiauxutilises peuvent etre differents, du sable par exemple.

44 Quant a la piste de motocross et VTT, Homans explique qu’al’exception d’une occasion en 2010, la piste n’est utilisee que pour desentraınements et non pour des competitions. Il y a eu une course de« bazous » en 2013 et une autre en 2014. De fait, les gens achetent unbillet pour une journee et en raison des exigences que la conduite com-mande, ils ne peuvent s’entraıner qu’au plus une heure durant cettejournee.

45 Quant au carre de demolition, Homans n’a organise qu’un seul evene-ment de demolition au mois de juillet 2010 et il n’a pas recommencedepuis puisque cela ne s’est pas avere etre une aventure rentable.

46 En 2010, la saison a debute en avril avec le meme horaire que l’anneeprecedente.

47 Le demandeur Gagnon dit avoir ete importune par le bruit devehicules motorises. C’est lui qui eventuellement entreprendra unrecours requerant l’emission d’une injonction permanente suivantl’article 227 LAU.


48 Gagnon a achete un terrain en 2002 dans la Municipalite a une dis-tance qu’il estime a 1 km de la piste de motocross et a 2 km de la pisted’acceleration. Il savait qu’il y avait deja eu un aeroport dans le secteur.Vers la mi-juillet 2003, il a debute la construction d’une maison pour yaccueillir sa mere ainsi que son frere atteint de sclerose en plaques. Ilsont amenage le 1er juillet 2005. Il utilise un camion, un tracteur apelouse, deux tracteurs, deux VTT et une motoneige, ce dernier vehiculeetant toutefois surtout utilise par son frere.

49 En 2009, Gagnon entendait des vehicules motorises plus ou moinsloin de chez lui. En 2010, il dit qu’il etait importune par le bruit, mais nesavait pas d’ou il provenait. Il s’est promene dans les alentours et c’estalors qu’il a vu l’enseigne « Drag St-Elie » sur laquelle etait in-scrit« motocross » avec une fleche directionnelle. Il a assume que lesbruits venaient de la.

50 Apres avoir effectue des verifications a la Ville, Gagnon a constatequ’un permis avait bel et bien ete emis a « Drag St-Elie ». Il a pris con-naissance du reglement de controle interimaire 2000-100 (RCI 2000-100)et il a fait une demande d’acces a l’information a la Ville. Il a consulte lereglement n° 297 et c’est la qu’il s’est rendu compte qu’il y avait absencedu certificat de conformite emis par la MRC.

51 Au debut de la saison 2010, Homans a recu la visite de l’inspecteurGamache qui venait verifier si tout etait conforme. Homans dit l’avoiraccompagne presque tout le temps de la visite. L’inspecteur Gamache luiaurait parle de la ligne entre la zone RE-52 et C-53, mais ne lui a pasparle d’un leger empietement.

52 A la mi-mai 2010, Homans a decide de changer l’horaire: mercredi de16 h a 20 h et les samedis et dimanches de 11 h a 16 h.

53 Le 13 mai 2010, l’inspecteur Gamache a ecrit le rapport suivant quise lit28 :

(. . .)

Lors de la verification, le tour du proprietaire fut effectue en 2temps :

En premier lieu, une verification fut faite concernant la pisted’acceleration (piste la plus pres du chemin de Saint-Elie). Cettepiste opere depuis plusieurs annees et avait ete autorisee parl’ancienne administration de la Municipalite de Saint-Elie d’Orford.

28 Piece DR-28.


Suite a la verification, la majeure partie des installations se re-trouvent dans la zone C-53, sauf en ce qui concerne une partie dustationnement reserve aux coureurs et a leurs bolides (paddock) ainsiqu’a une partie cloturee servant aux « Derby de demolition », voirplan 3.

En second lieu, un coup d’oeil a ete fait pour la nouvelle piste demotocross (voir plan). M. Simon Homans a obtenu en 2008, unpermis pour l’amenagement d’une piste de motocross et de quad (4roues) sur une partie du lot n° 3 575 826 localise dans la zone C-53,permis n° 2008-04078. Cette piste a ete amenagee sur le terrainqu’avait prepare (deboise et nivele) en 2003, M. Gerard Furse, ancienproprietaire. Suite a la verification, la majeure partie des installationssemblent localisees dans la zone C-53 et les coureurs n’ont pas accesa la partie boisee du terrain localise dans la zone RE-52, voir plan 1.

1) Localisation de l’activite « acceleration » :

• L’acces au site des spectateurs se fait dans un premiertemps par le lot n° 3 575 825 (emprise de rue), zoneC-23 et ensuite par le lot n° 3 575 826, zone C-23 etC-53, ils accedent ainsi au stationnement, zone C-53,voir plan 3.

• L’acces au site par les coureurs et leurs bolides se faitpar le lot n° 3 575 825 (emprise de rue), zone C-23 etRE-52, ils accedent ainsi au paddock, zone RE-52 etC-53.

• La piste d’acceleration se situe entierement dans lazone C-53, le chemin de retour au bout de la piste estlocalise en partie dans la zone C-53 et RE-52, lescoureurs accedent ainsi au paddock localise dans lazone RE-52 et C-53 ou retourne a la pisted’acceleration, zone C-53, voir plan 3.

2) Localisation de l’activite « demolition » :

Evenement tres occasionnel qui etait effectue par M. Gerard Furse,M. Simon Homans ne sait pas vraiment s’il repetera ce genred’activite.

• L’acces au site des spectateurs est le meme que pour l’activite« acceleration ».

• L’acces au site pour ceux qui participent a la demolition, estle meme que pour l’activite « acceleration », le paddock pourles participants est le meme que pour l’activite« acceleration ».


• L’enclos servant a la demolition est localise dans la zone RE-52 et C-53, voir plan 3.

3) Localisation de l’activite « motocross » :

• L’acces au site se fait par le lot n° 3 575 825 (emprisede rue), zone C-23 et RE-52 et un acces localise sur lelot n° 3 575 826 localise dans la zone RE-52 et C-53,ils accedent ainsi a la piste de motocross localise surle lot n° 3 575 826, zone C-53 et RE-52, voir plan 3.

La conclusion de localisation des sites 1, 2, 3 a ete faite a partir de laphoto aerienne 2007 disponible sur GOCITE.

4) (. . .)

5) En reference aux normes d’implantation prevues a l’article7.8 du reglement de zonage n° 234 :

• 1 000 metres du P.U. Oui

• 150 metres du chemin pub- Oui pour la pistelic ou cours d’eau

• Ecran vegetal tout autour du Non, selon les ententesterrain anterieures, il avait ete

convenu qu’un ecran veg-etal serait installe a lalimite sud du 9305,chemin de Saint-Elie, cequi fut fait. De plus, leproprietaire de l’epoque,M. Furse, a erige un mur(en terre) pour dissimulerle site et amoindrir lebruit. Voir plan 2, photos2A et 2B

6) Droits acquis :

• Dans ce dossier, on ne parle nullement de droitsacquis.

7) Conclusion :

La conclusion est faite a partir d’un (sic) photocopie aerienne deGocite et en considerant que les differents elements qu’on y re-trouve ont tous ete implantes avec precision.

• Acceleration et demolition, plan 3:

• Leger empietement du chemin de retour descoureurs dans la zone RE-52.


• Localisation totale du chemin d’acces des coureursdans la zone RE-52.

• Localisation partielle du paddock reserve auxcoureurs ainsi que de la partie cloturee servant auxderby de demolition dans la zone RE-52.

• Motocross, plans 1 et 3:

• Leger empietement de la piste de motocross dans lazone RE-52.

• Localisation partielle (1ere partie) du chemin me-nant a l’activite motocross, se retrouve dans lazone RE-52.

(nos emphases)

54 Les reproches de la Ville consistent donc essentiellement a del’empietement ou leger empietement dans la zone residentielle. Homansdit ne pas avoir recu copie de ce rapport.

55 Homans a continue l’exploitation de son commerce. Rappelonsqu’apres juillet 2010, il n’a pas tenu d’evenements de demolition, parceque cela n’etait pas rentable.

56 A l’automne 2010, il a recu une lettre de la Ville concernant la regle-mentation et il a compris qu’il devait retenir les services d’un avocat.C’est a la fin novembre 2010, lors d’une rencontre avec son avocat etcelui de la Ville, que Homans a ete informe du probleme de l’absence decertificat de conformite du reglement n° 297. Il ne comprenait pas ce quiarrivait puisque, dit-il, il avait fait toutes les demarches a la Ville pourque tout soit conforme.

57 Le 13 avril 2011, afin de regulariser la situation concernant l’absencede certificat de conformite, la greffiere adjointe de la Ville a publie unavis public permettant a toute personne habilitee a voter sur son territoirede demander a la Commission municipale du Quebec (CMQ) son avissur la conformite de 10 reglements de zonage de la Municipalite quin’avaient pas ete completes et qui sont tous des amendements du regle-ment n° 234, dont le reglement nº 29729.

58 La loi prevoit que si cinq citoyens ou plus deposent une demande, laCMQ est saisie et une fois la decision rendue, elle fait paraıtre un avisque le reglement est en vigueur a la date de la decision. S’il n’y a pas de

29 Piece P-10.


demande d’au moins cinq citoyens, le reglement entre en vigueur al’expiration de 30 jours.

59 Seule une demande de conformite pour le reglement n° 297 a eteproduite de sorte que les neuf autres reglements sont entres en vigueur le13 mai 2011.

60 La demande de conformite visant le reglement n° 297 a ete demandeepar les personnes suivantes: Marie-Pierre Beaudoin, Marie Beaule, He-lene Duranleau Beaudoin, Loıc Boisvert, Francois Chasse, Jean Gosselin,Sylvie Huppe, France Provencher, Germain Provencher et Nicole Roy.

61 Gagnon reconnaıt avoir eu connaissance de l’avis public, mais ne l’apas conteste et n’a pas ete implique dans la demarche aupres de la CMQ.Le demandeur Danaher, qui demande de declarer invalide le reglementn° 297 a egalement eu connaissance de l’avis public, mais il n’est pasintervenu dans cette demarche.

62 La CMQ a rendu deux decisions. Dans un premier temps, sa compe-tence a statuer sur la conformite du reglement n° 297 a ete attaquee. Le12 juillet 2011, la CMQ a rendu une decision se reconnaissant com-petente30 et le 19 septembre 2011, elle a rendu une decision reconnais-sant la conformite du reglement nº 297 au schema d’amenagement et auxdispositions du document complementaire de la MRC de Sherbrooke. Ilest ecrit31 :

[45] Les parties ont fait des representations a l’egard de la piste decourse. Cependant, la Commission considere que l’implantationd’une telle piste est une question de legalite et d’opportunite et donc,n’est pas de son ressort. En effet, en raison de la competence qui luiest devolue en matiere d’amenagement et d’urbanisme, la Commis-sion ne peut qu’examiner la conformite du Reglement a l’egard duSchema.

[46] La Commission conclut que le Reglement en cause ne contreditpas, ne contrevient pas et ne rend pas caduques les dispositions duSchema et du document complementaire.

63 La decision de la CMQ du 19 septembre 2011 n’a pas fait l’objetd’une demande de revision judiciaire pas plus que celle du 12 juillet2011. Danaher et Gagnon ont eu connaissance de ces deux decisions.

30 Piece P-11.31 Piece P-12.


64 C’est apres le 19 septembre 2011 que Gagnon dit avoir rencontreDanaher. Quant a Danaher, il demeure vague sur le moment de leur ren-contre et de fait, il ne semble pas s’en souvenir.

65 Danaher reside depuis 1966 sur une ferme situee sur le chemin St-Elie. Il situe son terrain a environ un demi a trois quarts de mille du siteen cause. Il eleve des poulets et des lapins et exploite un abattoir. Depuis1970, il exploite un commerce de vente de terre qui consiste principale-ment a creuser le sol avec une pelle mecanique, faire des tas et tamiser laterre. Il explique que cette activite se deroule durant un a deux jours parsemaine, habituellement entre 11 h et 15 h, parfois jusqu’a 18 h 30 et defacon exceptionnelle jusqu’a 20 h.

Horaire a compter de 201166 Homans a modifie de nouveau l’horaire en 2011, apres avoir ete in-

forme que des citoyens se plaignaient du bruit. Ainsi, l’horaire a eterestreint pour le motocross aux mercredis de 16 h a 20 h et les samedisde 11 h a 16 h et remis au lendemain au cas de pluie. A compter du 21juin 2011, le samedi n’a plus ete reporte au cas de pluie. Les VTTn’avaient acces au site qu’un samedi sur deux et avec l’obligation d’avoirun silencieux d’origine en bon etat.

67 Au mois de mars 2012, une injonction interlocutoire a ete emise dansun autre dossier de Cour de sorte que la course d’acceleration commune-ment appele « drag » devait se derouler les vendredis de 19 h a 22 h et lesite devait etre vide a 23 h. Le site de motocross etait ouvert les mer-credis de 17 h a 20 h et les samedis de 11 h a 16 h. Aussi, de cinq a sixevenements speciaux par annee, il n’y en avait plus que deux32.

68 Homans explique qu’au cours de la saison, la frequentation demeuretoujours a peu pres la meme, c’est-a-dire tout au plus entre 40 a 50personnes.

Schema d’amenagement69 A l’audience, Lise Dubord urbaniste coordonnatrice a la Ville, a ex-

plique que le nouveau schema d’amenagement a ete adopte par la Ville le17 fevrier 201433. La premiere version avait ete soumise le 14 avril 2013et les modifications demandees ne touchaient pas la zone en cause. Elle

32 Dossier portant le numero 450-17-003903-102.33 Piece DR-42.


souligne que le schema d’amenagement permettra l’affectation de pistede course sur le lot 3 575 826 situe dans la zone C-53.

70 Une fois le schema adopte par la Ville, le ministre a 120 jours pourreagir. Si le ministre est d’accord, le schema d’amenagement sera ap-prouve et entrera en vigueur. Des l’automne 2014, il y aura l’adoptiond’un nouveau reglement dans un delai de trois ans. Contre-interrogee,elle reconnaıt toutefois qu’il est possible qu’avec les aleas, le nouveauschema soit contraignant seulement dans 10 ans.

71 A la fin de l’audience, il a ete convenu que le delibere ne debuteraitqu’apres avoir recu la reponse du ministre aux Affaires municipales et del’Occupation du territoire du gouvernement du Quebec.

72 Le 4 juillet 2014, le procureur de la Ville a transmis a la soussignee lalettre du sous-ministre qui demande a la Ville de revoir le schemad’amenagement en ce qui concerne la planification des espaces indus-triels et l’encadrement des nuisances sonores. La cause a ete prise endelibere a cette date.

73 Le 10 decembre 2014, le procureur des intimes et mis en cause Ho-mans et 9202-2680 Quebec inc. a demande une reouverture d’enquetepour plus particulierement proceder au depot de document confirmantl’entree en vigueur et la teneur du Schema d’amenagement et de develop-pement 2012-2027 revise. Suite a une conference telephonique tenue le17 decembre suivant, le tribunal a reouvert l’enquete a l’unique fin deproduire un affidavit de madame Lise Dubord et d’autoriser la produc-tion des pieces R-2 et R-3. L’affidavit de madame Dubord a ete signifiele lendemain et dans les jours qui ont suivi, les procureurs ont informe letribunal qu’ils n’avaient pas l’intention d’interroger l’affiante. La cause aete prise en delibere.

74 Il importe de reprendre certains allegues de l’affidavit :19. Il n’y a pas de differences fondamentales pouvant affecter le pre-sent litige entre les pieces DR-43 et DR-50;

20. En effet, les modifications exigees par le MAMOT en juin 2014ne visaient aucunement la piste de course en litige;

(. . .)

22. J’affirme donc que si je devais rendre temoignage au sujet de lapiece DR-51, mon temoignage serait le meme que celui rendu enavril 2014 au sujet de la piece DR-43;


LES EXPERTS75 Alain Harel, arpenteur-geometre, a ete mandate par Gagnon au mois

de fevrier 2012 pour effectuer les operations d’arpentage necessaires afinde determiner la distance d’eloignement minimale entre les maisons dusecteur et les limites cadastrales des lots appartenant a Homans en rap-port avec l’article 7.8 du reglement zonage n° 234. Il s’est servi a la basedu plan de cadastre. Il s’agit d’un rapport de mesures seulement.

76 Selon son rapport, huit maisons ont ete repertoriees et six d’entre el-les sont a une distance de moins de 300 metres34 :

Tableau Synthese

No civique Lot Distanced’eloignementminimale (m)

A 9392 3 575 831 38,7

B 9350 3 575 838 129,5

C 9320 3 575 834 43,2

D 9310 3 575 836 162,6

E 9270 4 187 993 305,4

F 9202 3 575 840 356,3

G 9217 3 575 839 256,8

H 9305 3 575 835 61,0

77 Christian de Passille, arpenteur-geometre a ete mandate par les in-times, Homans et 9202-2680 Quebec inc. Il decrit ainsi son mandat35 :

(. . .)

Dans un premier temps, notre mandat visait a situer sur le planprecedemment mentionne l’ensemble des zones prevues au Regle-ment de zonage n°234 identifiees par les procureurs comme etant cel-les ou, conformement a la grille de specifications n°7-6008-00,l’usage « commerce de detail et services contraignants » etaitautorise.

Le code alphanumerique de chacune de ces zones est inscrit en rougesur le plan prepare par notre etude et intitule « Plan illustrant la por-tee de certaines normes de distances prevues a l’article 7.8 du regle-

34 Piece P-29.35 Piece DR-48.


ment de zonage # 234 » joint au present document comme annexe« 1 » (ci-apres : le plan).

Dans un deuxieme temps, il etait de notre mandat d’illustrer certainesnormes de distance auxquelles le Reglement de zonage n°234, al’article 7.8, assujettit l’exercice de l’usage « champs de courses devehicules motorises ».

Nous avons donc trace sur le plan une limite situee a 1 000 metres duperimetre d’urbanisation tel qu’identifie au plan de zonage envigueur a l’epoque. Afin de determiner cette limite de 1 000 metres,nous avons illustre, sur le plan, en mauve, la limite du perimetreurbain tel qu’identifie au plan de zonage.

Aussi, il nous a ete demande d’illustrer la distance de 150 metres detout chemin public situe dans les zones precedemment identifiees.

De plus, il nous a ete demande d’illustrer la distance de 300 m parrapport a la maison portant le numero [. . .] pour la zone C-85.

(. . .)

78 L’arpenteur-geometre de Passille avait depose un premier rapport le-quel a ete remplace par un deuxieme le 26 novembre 2013. Le plan ac-compagnant le deuxieme rapport rectifiait une erreur qui s’est avereesans consequence quant au perimetre urbain et y est apparu, pour la pre-miere fois, l’emplacement d’une maison.

79 Un plan additionnel prepare le 9 avril 2014 a ete depose. Sur ce plan,on peut constater que la zone C-23 est desormais en blanc, qu’il y a eul’ajout de la zone C-215 et qu’il y a eu le positionnement d’une deux-ieme maison sur le chemin Cayer.

80 Contre-interroge, l’arpenteur-geometre de Passille allegue que les dis-tances au cours d’eau ne lui ont pas ete demandees dans aucun despresents rapports et il lui a ete demande de ne verifier la distanceminimale que des deux maisons qui apparaissent sur le dernier plan.

81 Selon l’arpenteur-geometre de Passille, apres avoir travaille avec unebase numerique ainsi que l’orthophoto, il considere qu’il peut y avoir unedistorsion d’environ ± 20-30 metres. Il souligne que le plan de zonagen’etablit pas de ligne de propriete, que c’est plutot un plan de consulta-tion pour l’application de reglements.

POSITION DES PARTIES

SUR LA REQUETE POUR JUGEMENT DECLARATOIRE:82 Danaher allegue avoir l’interet requis pour demander un jugement

declaratoire. Il soutient que le manquement de la Municipalite d’obtenir


un certificat de conformite de la MRC en 1993 est une formalite essen-tielle pour l’entree en vigueur du reglement ce qui constitue un vicegrave entraınant la nullite absolue et ne laissant pas place a l’exercice dela discretion judiciaire.

83 Il allegue que les mots « le plus tot possible » employes a l’article137.2 LAU indiquent que le processus doit s’effectuer dans un delairaisonnable afin de permettre l’etude avec les memes parametres.

84 Danaher ajoute qu’au moment de la fusion en 2002, le reglement n°297 n’etait pas en vigueur et que la Ville en succedant aux droits et obli-gations de la Municipalite n’a elle-meme pas agi « le plus tot possible ».Danaher soutient que l’avis du 13 avril 2011 est tardif de sorte que ladecision de la CMQ du 19 septembre 2011 est sans effet.

La Ville85 La Ville allegue que l’emission du certificat de conformite par la

MRC est une simple formalite de sorte qu’il s’agit d’une nullite relativepermettant au tribunal d’exercer sa discretion judiciaire. La Ville faitvaloir que l’article 246.1 de la LAU doit recevoir application.

86 La Ville fait valoir que la MRC est une autorite administrative qui nedetient pas de pouvoir discretionnaire contrairement aux personneshabiles a voter qui, elles, peuvent faire valoir leur opinion. Le role de laMRC se limite a delivrer le certificat de conformite si le reglement estconforme au schema d’amenagement.

87 La CMQ, tout comme la MRC, n’exerce aucune discretion, c’est unpouvoir lie. La decision de la CMQ du 19 septembre 2011 est la date del’entree en vigueur du reglement n° 297.

88 Enfin, la Ville allegue qu’il existe une presomption de validite desreglements et qu’au nom de cette stabilite, le reglement n° 297 ne devraitpas etre annule. Elle ajoute que si la nullite du reglement n° 297 etaitprononcee, cela aurait un impact puisque plusieurs reglements seraientaffectes depuis 199336.

Homans89 Selon Homans, il s’agit ici d’une nullite relative qui permet au tribu-

nal d’exercer sa discretion judiciaire. Consequemment, il y a lieud’analyser les consequences de l’annulation de ce reglement. Tant la

36 Piece DR-29, onglets 9, 10 et 28.


MRC que la Municipalite ont considere que le reglement n° 297 etait envigueur. En l’instance, si le tribunal declare nul le reglement n° 297, celaaurait pour consequence d’affecter plusieurs autres reglements. Enfin, ilsouligne que la MRC a toujours pris en compte que la zone C-53 existait.

90 Subsidiairement, il demande de :[4] DECLARER que tant le Reglement n° 234 et ses amendementsque le Reglement de controle interimaire n° 2000-100 de la Ville deSherbrooke (P-6) sont prohibitifs a l’egard des lots 3 575 826,3 575 833, 3 695 303, 3 575 825, 3 575 830 et 3 575 824 du Cadastredu Quebec;

[5] DECLARER nuls et inopposables au mis en cause Homans lesplans de zonage et les dispositions reglementaires du Reglement 234et de ses amendements, ainsi que les dispositions du Reglement decontrole interimaire n° 2000-100 de la Ville de Sherbrooke (P-6), af-fectant les lots 3 575 826, 3 575 833, 3 695 303, 3 575 825,3 575 830 et 3 575 824 du Cadastre du Quebec, concernant l’usage« champ de courses de vehicules motorises »;

[6] DECLARER que les lots 3 575 826, 3 575 833, 3 695 303,3 575 825, 3 575 830 et 3 575 824 du Cadastre du Quebec,beneficient de droits acquis quant a l’usage « champ de courses devehicules motorises »;

QUESTIONS EN LITIGE

Sur la requete pour jugement declaratoire91 Danaher a-t-il l’interet requis pour demander un jugement

declaratoire?92 Quel est l’impact du manquement de la Municipalite en 1993 con-

cernant l’obtention d’un certificat de conformite par la MRC de la regionsherbrookoise? Est-ce une simple formalite ou plutot une formaliteessentielle?

ANALYSE93 Danaher a-t-il l’interet requis pour demander un jugement

declaratoire?94 L’article 453 C.p.c. se lit:

453. Celui qui a interet a faire determiner, pour la solution d’une dif-ficulte reelle, soit son etat, soit quelque droit, pouvoir ou obligationpouvant lui resulter d’un contrat, d’un testament ou de tout autre ecritinstrumentaire, d’une loi, d’un arrete en conseil, d’un reglement ou


d’une resolution d’une municipalite, peut, par requete introductived’instance, demander un jugement declaratoire a cet effet.

95 L’article 397 de la Loi sur les cites et villes se lit37:397. Tout interesse peut, par requete presentee suivant les regles ap-plicables a la procedure ordinaire prevues au Code de procedurecivile (chapitre C-25), demander et obtenir pour cause d’illegalite lacassation de tout reglement ou de toute partie d’un reglement du con-seil, avec depens contre la municipalite.

96 Le tribunal est d’avis que le demandeur Danaher a l’interet requispour faire determiner la legalite d’un reglement de la Ville.

97 Quel est l’impact du manquement de la Municipalite pour l’obtentiond’un certificat de conformite par la MRC de la region sherbrookoise en1993? Est-ce une simple formalite ou une formalite essentielle?

98 Selon Danaher, le reglement n’est jamais entre en vigueur parce quela demande de conformite n’a pas ete demandee « le plus tot possible ».Il ajoute que l’avis d’adoption publie par la Ville, 17 ans plus tard, nepeut etre considere comme ayant ete fait « le plus tot possible » apresl’adoption du reglement, tel que le prescrit la LAU. Il allegue qu’il s’agitd’un manquement a une formalite essentielle constituant une nullite ab-solue conduisant necessairement a l’invalidite du reglement.

99 Qu’en est-il?100 Il est admis que la Municipalite a omis de demander le certificat de

conformite a la MRC une fois qu’elle ait eu adopte le reglement toutcomme pour neuf autres reglements. La seule explication plausible decette omission est que le fonctionnaire de la Municipalite qui aurait dutransmettre la demande ne l’a pas fait. La preuve revele toutefois quedepuis 1993, tous, y compris la MRC, ont reconnu que la zone C-53 etaitune zone reelle. A plusieurs reprises la Municipalite a du s’assurer de lalegalite des activites qui s’y deroulaient.

101 Ici, le manquement invoque n’a pas affecte le processus de consulta-tion des personnes habiles a voter. En effet, tout le processus s’est der-oule conformement a la loi jusqu’a ce que la Municipalite ait dumentadopte le reglement.

102 A l’etape de la demande du certificat de conformite, la MRC exerceun pouvoir lie et ne possede aucun pouvoir discretionnaire. Son role enest un de surveillance, limite a verifier si l’adoption du reglement est

37 RLRQ, c. C-19, art. 397.


conforme aux orientations presentees par le schema d’amenagement. LaMRC ne peut en aucun cas substituer son opinion a la decision de laMunicipalite. C’est donc l’entree en vigueur du reglement qui estretardee jusqu’a ce que le certificat soit emis.

103 Le projet de reglement n° 297 a pour objet de modifier un reglementde zonage de sorte que ce sont les articles 137.2 a 137.4 de la LAU quirecoivent application lesquels se lisent38 :

137.2. Le plus tot possible apres l’adoption d’un reglement vise aupresent alinea, le greffier ou secretaire-tresorier transmet une copiecertifiee conforme du reglement et de la resolution par laquelle il estadopte a la municipalite regionale de comte dont le territoire com-prend celui de la municipalite. Est vise:

1° tout reglement qui modifie ou remplace le reglement de zonage,de lotissement ou de construction;

(. . .)

137.3 Dans les 120 jours qui suivent la transmission prevue au pre-mier alinea de l’article 137.2, le conseil de la municipalite regionalede comte doit approuver le reglement, s’il est conforme aux objectifsdu schema et aux dispositions du document complementaire, ou ledesapprouver dans le cas contraire.

La resolution par laquelle le conseil de la municipalite regionale decomte desapprouve le reglement doit etre motivee et identifier lesdispositions du reglement qui ne sont pas conformes.

Le plus tot possible apres l’adoption de la resolution par laquelle lereglement est approuve, le secretaire delivre un certificat de con-formite a son egard et transmet une copie certifiee conforme du cer-tificat a la municipalite. Toutefois, lorsque le reglement doit egale-ment etre approuve par les personnes habiles a voter et que cetteapprobation n’a pas encore ete donnee au moment ou le conseildonne la sienne, la delivrance et la transmission prevues au presentalinea sont faites le plus tot possible apres que la municipalite region-ale de comte a recu l’avis prevu au troisieme alinea de l’article 137.2.En outre, si, en application de l’article 110.10.1, le conseil de lamunicipalite adopte le meme jour le reglement revisant le plan etcelui qui remplace le reglement de zonage ou de lotissement, ces de-livrance et transmission a l’egard du reglement approuve par le con-seil de la municipalite regionale de comte ne peuvent etre effectueestant que celles prevues au present article ou a l’un des articles 109.7,

38 RLRQ c. A-19.1, articles 137.2 a 137.4.


109.9 et 137.5 ne peuvent l’etre a l’egard de tout autre reglementainsi adopte le meme jour; les delivrance et transmission sont alorseffectuees le meme jour a l’egard de tous ces reglements.

Le plus tot possible apres l’adoption de la resolution par laquelle lereglement est desapprouve, le secretaire transmet une copie certifieeconforme de celle-ci a la municipalite.

137.4 Si le conseil de la municipalite regionale de comte desap-prouve le reglement ou s’il fait defaut de se prononcer dans le delaiprevu a l’article 137.3, le conseil de la municipalite peut demander ala Commission son avis sur la conformite du reglement aux objectifsdu schema et aux dispositions du document complementaire.

(. . .)

104 Une premiere remarque s’impose.105 A l’article 137.2 LAU, le legislateur n’a pas edicte un nombre precis

de jours preferant n’indiquer que l’expression « le plus tot possible ». Laredaction de cet article invite a une interpretation large et liberale. Eneffet, l’expression « le plus tot possible » ne permet pas de determiner defacon specifique a compter de quelle date il serait trop tard pour trans-mettre la demande du certificat de conformite.

106 En l’instance, la Ville a agi 17 ans apres l’adoption du reglement,mais a tout de meme agi « le plus tot possible » apres avoir ete saisie dela question du manquement en cause. Elle a alors effectue les verifica-tions qui s’imposent pour constater que 10 reglements avaient subi lememe sort au cours de la meme periode. Suite au decret de fusion, laMRC de la region sherbrookoise n’existait plus et le pouvoir d’emettre lecertificat de conformite est maintenant devolu exceptionnellement a laCMQ.

107 C’est dans ce contexte que la Ville a demande un certificat de con-formite a la CMQ suivant les articles 137.10 a 137.14 LAU qui se lisent :

137.10. Le plus tot possible apres l’adoption d’un reglement a l’egardduquel s’applique le present article, le greffier ou secretaire-tresorierde la municipalite donne, conformement a la loi qui regit lamunicipalite en cette matiere, un avis public qui mentionnel’adoption du reglement et qui explique les regles prevues aux deuxpremiers alineas de l’article 137.11 et au premier alinea de l’article137.

137.11 Toute personne habile a voter du territoire de la municipalitepeut demander par ecrit a la Commission son avis sur la conformitedu reglement au plan.


La demande doit etre transmise a la Commission dans les 30 joursqui suivent la publication de l’avis prevu a l’article 137.10.

Le secretaire de la Commission transmet a la municipalite une copiede toute demande transmise dans le delai prevu.

137.12 Si la Commission recoit, d’au moins cinq personnes habiles avoter du territoire de la municipalite, une demande faite conforme-ment a l’article 137.11 a l’egard du reglement, elle doit, dans les 60jours qui suivent l’expiration du delai prevu a cet article, donner sonavis sur la conformite du reglement au plan.

Dans le cas ou la conformite du reglement au plan est exigee en vertude l’article 110.5 ou 110.10.1, le plan pris en consideration par laCommission est celui qui est modifie ou revise par le reglement visea cet article, meme si ce reglement n’est pas en vigueur.

L’avis selon lequel le reglement n’est pas conforme au plan peut con-tenir les suggestions de la Commission quant a la facon d’assurercette conformite.

Le secretaire de la Commission transmet une copie de l’avis a lamunicipalite et a toute personne qui a formule la demande.

Le greffier ou secretaire-tresorier de la municipalite affiche au bu-reau de celle-ci la copie de l’avis qu’elle a recue.

137.13 Si la Commission ne recoit pas, d’au moins cinq personneshabiles a voter du territoire de la municipalite, une demande faiteconformement a l’article 137.11 a l’egard du reglement, celui-ci estrepute conforme au plan a compter de l’expiration du delai prevu acet article.

Le reglement est egalement repute conforme au plan a compter de ladate ou la Commission donne, conformement a l’article 137.12, unavis attestant cette conformite.

137.14 Le conseil de la municipalite doit adopter un nouveau regle-ment qui remplace celui qui n’est pas, en vertu de l’article 137.13,repute conforme au plan, afin d’assurer cette conformite.

Les articles 124 a 133 ne s’appliquent pas a l’egard d’un nouveaureglement qui differe de celui qu’il remplace uniquement pour as-surer sa conformite au plan.

Le nouveau reglement doit etre adopte avant l’expiration du delai quise termine en dernier entre celui qui est prevu pour l’adoption dureglement devant etre remplace et un delai de 90 jours apres celui oula Commission donne son avis selon lequel ce reglement n’est pasconforme au plan.


108 Lorsque la Ville a publie l’avis public le 13 avril 2011, toutes lespersonnes interessees pouvaient se manifester afin qu’une audition soittenue, ce qui a ete fait.

109 Le 19 septembre 2011, apres analyse, la CMQ a conclu a la con-formite du reglement. Cette decision, pas plus que celle du 12 juillet2011, n’a fait l’objet de revision judiciaire. Gagnon et Danaher ne sontpas intervenus au cours du processus alors qu’ils etaient au courant deson deroulement et qu’ils ont admis avoir pris connaissance des decisionsqui en ont decoule.

110 Malgre l’interpretation liberale que commande l’expression « le plustot possible », le tribunal ne peut retenir que l’intention du legislateurvisait un delai aussi long que 17 ans. Le tribunal ne peut toutefois pasmettre de cote dans son analyse le fait que le reglement a fait l’objetd’une verification et il a ete determine que le reglement est, et a toujoursete conforme. En effet, meme si ce n’est pas la meme entite qui emet lecertificat, le role de la CMQ est le meme que celui de la MRC c’est-a-dire verifier si l’adoption du reglement est conforme aux orientationspresentees par le schema d’amenagement. Egalement, le schemad’amenagement n’a pas ete modifie entre 1993 et 2011 quant au terrainen cause et la preuve demontre que le nouveau schema d’amenagementpermet encore une zone commerciale au meme endroit.

111 Reste a determiner si l’oubli du fonctionnaire de la MRC entraınel’invalidite du reglement et par consequent, l’invalidite des neuf autres.En d’autres mots, est-ce un manquement a une simple formalite ou a uneformalite essentielle? La reponse est importante puisque dans le premiercas, il s’agit d’une nullite relative permettant au tribunal d’exercer sa dis-cretion alors que dans le deuxieme cas, il s’agit d’une nullite absolue nelaissant pas place a la discretion.

112 L’article 246.1 LAU permet, dans certains cas ou il y a eu inobserva-tion d’une formalite, de ne pas invalider un acte. Cet article se lit:

246.1. L’inobservation, par un organisme competent ou unemunicipalite ou par l’un de ses membres du conseil ou fonction-naires, d’une formalite prevue par la presente loi n’invalide pas unacte, a moins qu’elle ne cause un prejudice serieux ou que la loi n’enprevoie l’effet, notamment en disposant que la formalite doit etrerespectee sous peine de nullite ou de rejet de l’acte.

113 La LAU ne prevoit pas de sanction au cas ou la demande de certificatde conformite n’est pas transmise le « plus tot possible ». Egalement,personne ne peut pretendre a un prejudice serieux cause par l’oubli de la


Municipalite. De fait, si le manquement a ete revele par le demandeur,c’est uniquement pour atteindre la finalite qu’il recherche c’est-a-direqu’il soit interdit aux intimes d’exploiter leur entreprise vu les incon-venients qu’il dit subir. Rappelons qu’il n’est pas intervenu devant laCMQ et ce n’est que suite a la decision sur la conformite du reglementqu’il a decide de demander un jugement declaratoire. Le tribunal con-sidere que dans le cadre de son analyse, il doit evaluer non seulement lanature de l’illegalite commise, mais egalement les consequences que celapeut entraıner tel que l’enseigne l’arret Immeubles Port Louis Ltee c.Lafontaine (Village)39 :

Dans l’exercice de sa discretion, le juge doit tenir compte d’un cer-tain nombre de facteurs, entre autres, de la nature de l’acte attaque etde la nature de l’illegalite commise et ses consequences. Il doit egale-ment tenir compte des causes du delai entre l’acte attaque etl’institution de l’action. La nature du droit invoque et le comporte-ment du demandeur sont d’autres facteurs pertinents a l’exercice dupouvoir discretionnaire de la Cour superieure. Le demandeur peutetre appele a expliquer son inaction de facon a ce que la Cour super-ieure puisse evaluer le caractere raisonnable du delai d’exercice deson droit.

114 La jurisprudence n’a pas hesite a invalider des reglements lorsquecertaines formalites liees a la consultation publique n’ont pas ete suivies.Voici quelques exemples:

115 Dans l’arret Immeubles Port Louis Ltee, un proprietaire avait de-mande la nullite des reglements d’emprunt qui prevoyaient qu’une partiedes couts de certains travaux devrait etre supportee au moyen d’une taxespeciale par les proprietaires d’immeubles dans un secteur donne de lamunicipalite. Or, les avis publics de convocation de la municipaliteetaient insuffisants. Il a ete decide que cette illegalite mettait en cause laregle audi alteram partem et l’exercice du droit de vote de l’appelante enl’espece.

116 Dans l’affaire Senneville (Village) c. David, le conseil de lamunicipalite avait adopte un reglement sans observer la formalite de laconsultation publique. Le juge a conclu qu’il s’agissait de l’inobservance

39 Immeubles Port Louis Ltee c. Lafontaine (Village), [1991] 1 S.C.R. 326(S.C.C.), 328.


d’une formalite essentielle et que l’adoption du reglement etait affected’un vice touchant sa validite40.

117 Dans l’affaire Cousineau c. Boucherville (Ville), la ville avait renoncea tenir un referendum alors que la modification au reglement de zonagecommandait qu’il y ait un scrutin41.

118 Dans l’affaire Hoppenheim c. Montreal (Ville), il a ete conclu que laVille avait commis une irregularite grave en emettant un permis sans quele conseil de ville ne se soit prononce par resolution sur la recommanda-tion de la commission. La juge Claudine Roy dans son analyse a cite unpassage des propos du professeur L’Heureux eu egard a la distinctionentre « simple formalite » et « formalite essentielle »: Elle ecrit42:

[95] La Cour supreme du Canada a repris les propos du professeurL’Heureux eu egard a la distinction entre « simple formalite » et« formalite essentielle

Il est important de souligner que les articles 14 du Code municipal et11 de la Loi sur les cites et villes et 3 de la Loi sur la fiscalitemunicipale ne touchent que les simples informalites. En vertu de lajurisprudence, lorsqu’une formalite est une condition essentielle a lavalidite d’un acte, son omission entraıne la nullite de l’acte sans qu’ilsoit necessaire de prouver prejudice.

Les notions de « formalite essentielle » et d’« element essentiel »demeurent, toutefois, assez imprecises en jurisprudence. En fait, onpeut dire que, globalement parlant, les tribunaux annulent un actepour irregularite de procedure lorsque le but de la procedure n’a pasete atteint. La charge de prouver l’irregularite appartient au de-mandeur, mais, une fois cette preuve faite, c’est au defendeur aprouver que la procedure a atteint son but.

(notre soulignement)

119 Ici, il n’y a aucune lacune dans le deroulement du processus democra-tique menant a l’adoption du reglement. Le reglement n’a pas fait l’objetd’une demande de referendum par les personnes habiles a voter et toutesles etapes d’approbation ont ete franchies avant l’adoption du reglement

40 Senneville (Village) c. David (1990), EYB 1990-77040 (C.S. Que.), par. 34.41 Cousineau c. Boucherville (Ville), [1986] R.J.Q. 318 (C.S. Que.).42 Hoppenheim c. Montreal (Ville) (2004), J.E. 2004-533, REJB 2004-52409(C.S. Que.) (appel principal et appel incident rejetes, (2006), EYB 2006-107667(C.A. Que.) et demande d’autorisation d’appel a la Cour supreme rejetee, no31654, 22 fevrier 2007 [2007 CarswellQue 950 (S.C.C.)]).


par la Municipalite. Il est certain que la demande de certificat de con-formite est une etape importante pour l’entree en vigueur du reglement.Dans le present cas, le but ultime de la procedure a ete atteint c’est-a-dires’assurer de la conformite du reglement.

120 De l’avis du tribunal, il s’agit d’une nullite relative. L’inobservationde la formalite par le fonctionnaire de la Municipalite, dans le contextede la presente affaire, ne peut invalider le reglement43.

121 Le reglement est donc valide et est entre en vigueur a la date de ladecision de la CMQ le 19 septembre 2011. Avant cette date, le reglementn’avait pas d’existence legale44.

POSITION DES PARTIES

SUR LA REQUETE SUIVANT L’ARTICLE 227 LAU :122 Le demandeur Gagnon soutient avoir l’interet requis pour demander

la cessation de l’exploitation par les intimes de leur site de competitionde vehicules motorises suivant l’article 227 LAU. Il soutient quel’utilisation est incompatible avec les reglements de zonage.

123 Le demandeur allegue subir un prejudice serieux en rapport avec lebruit provenant de la piste de motocross.

124 Les intimes soutiennent que le demandeur n’est pas une personne in-teressee au sens de la LAU pour demander une conclusion de nature in-jonctive puisqu’il ne reside pas dans la Ville et il demeure loin du site encause. Les intimes font valoir que Gagnon, pas plus que Danaher, nesubit un prejudice serieux cause par le bruit genere par la piste demotocross. Au surplus, il n’y a aucune preuve de prejudice concernant lapiste d’acceleration.

125 Les intimes alleguent qu’en tout temps, y compris Furse, se sontsoumis volontairement a la reglementation et a plusieurs reprises, ils ontdemande des permis pour exercer leurs activites, ce qui leur a toujoursete accorde. Les intimes alleguent que le tribunal, en utilisant sa discre-tion judiciaire, peut rejeter un recours suivant l’article 227 LAU memeapres avoir constate l’existence d’un usage derogatoire.

43 Code municipal du Quebec, art. 23; Loi sur les cites et villes, art. 11; Loi surl’amenagement et l’urbanisme, art. 246.1;44 Bland c. Ste-Anne de Bellevue (Ville) (1980), J.E. 81-39 (C.S. Que.), par. 5.


126 Subsidiairement, ils demandent de declarer que le reglement n° 234 etses amendements ainsi que le RCI 2000-100 sont prohibitifs a l’egard deleurs lots.

127 La Ville, pour sa part, allegue que le reglement n° 297 a ete adopte en1993 et que cela a cree des effets meme si le reglement n’est entre envigueur que le 19 septembre 2011. Elle ajoute ne pas avoir entrepris elle-meme de recours en vertu de l’article 227 LAU puisque son reglement no

297 etait attaque. La Ville plaide que dans la presente affaire, le tribunala la discretion pour imposer un ou des remedes utiles.

QUESTIONS EN LITIGE:128 Le demandeur Gagnon est-il une personne interessee au sens de la

LAU?129 Y a-t-il lieu d’ordonner la cessation de l’exploitation par les intimes

de leur site de competition de vehicules motorises suivant l’article 227LAU? S’il y a lieu, y a-t-il un autre remede applicable?

ANALYSE130 L’article 227 LAU se lit :

227. La Cour superieure peut, sur requete du procureur general, del’organisme competent, de la municipalite ou de tout interesse,ordonner la cessation :

1° d’une utilisation du sol ou d’une construction incompatibleavec:

a) un reglement de zonage, de lotissement ou de construction;

b) un reglement prevu a l’un ou l’autre des articles 79.1, 116et 145.21;

c) un reglement ou une resolution de controle interimaire;

d) un plan approuve conformement a l’article 145.19;

e) une entente visee a l’article 145.21, 165.4.18 ou 165.4.19;

f) une resolution visee au deuxieme alinea de l’article 145.7,145.34, 145.38, 165.4.9 ou 165.4.17 ou au troisieme alinea del’article 145.42;

2° d’une intervention faite a l’encontre de l’article 150;

3° d’une utilisation du sol ou d’une construction incompatibleavec les dispositions d’un plan de rehabilitation d’un terrainapprouve par le ministre du Developpement durable, del’Environnement et des Parcs en vertu de la section IV.2.1 du


chapitre I de la Loi sur la qualite de l’environnement (chapi-tre Q-2).

Elle peut egalement ordonner, aux frais du proprietaire, l’executiondes travaux requis pour rendre l’utilisation du sol ou la constructionconforme a la resolution, a l’entente, au reglement ou au plan vise auparagraphe 1° du premier alinea ou pour rendre conforme au planmetropolitain applicable, aux objectifs du schema applicable ou auxdispositions du reglement de controle interimaire applicablel’intervention a l’egard de laquelle s’applique l’article 150 ou, s’iln’existe pas d’autre remede utile, la demolition de la construction oula remise en etat du terrain.

Elle peut aussi ordonner, aux frais du proprietaire, l’execution destravaux requis pour rendre l’utilisation du sol ou la construction com-patible avec les dispositions du plan de rehabilitation mentionne auparagraphe 3° du premier alinea ou, s’il n’existe pas d’autre remedeutile, la demolition de la construction ou la remise en etat du terrain.

131 Le demandeur Gagnon est-il une personne interessee au sens de laLAU?

132 Gagnon habite a Orford dans la municipalite voisine a une distancequ’il evalue a environ 1 km de la piste de motocross. Il allegue que le sitede competition de vehicules motorises des intimes est incompatible avecles reglements de zonage. En matiere d’interet public, la notion d’interetest large45. Soulignons que le recours de l’article 227 LAU n’est pas re-serve a une municipalite, ou ici, a la Ville. En l’instance, la Ville a sou-ligne ne pas avoir entrepris elle-meme un recours puisque son reglementetait attaque. Considerant la nature du prejudice allegue soit « les bruitsengendres par les activites de competition de motocross et de VTT », etbien que le proprietaire qui habite juste a cote de la zone C-53 ne seplaint pas, le tribunal estime tout de meme que le demandeur est unepersonne interessee au sens de la LAU.

133 Y a-t-il lieu d’ordonner la cessation de l’exploitation par les intimesde leur site de competition de vehicules motorises suivant l’article 227LAU? S’il y a lieu, y a-t-il un autre remede applicable?

45 Boily c. Belanger, [1989] R.J.Q. 572 (C.A. Que.); Perreault c. Bouchard(1990), J.E. 90-1676 (C.S. Que.) [1990 CarswellQue 1377 (C.S. Que.)] (desiste-ment d’appel, C.A. 500-09-001664-903, 12 mars 1992); Trudeau c. Pierres St-Hubert inc. (2001), J.E. 2001-781 (C.A. Que.) [2001 CarswellQue 360 (C.A.Que.)];


134 Avant de discuter de la piste d’acceleration et de la piste demotocross et VTT, il convient de rappeler les dates importantes :

• 1993: l’adoption du reglement n° 297 par la Municipalite creant lazone C-53.

• 1998: debut des courses d’acceleration apres l’obtention depermis;

• 16 mai 2000: le RCI 2000-10046, toujours en vigueur, interdit lespistes de course pour vehicules motorises :

6 Dispositions concernant les elements de contraintesd’origine anthropique (identifiees au plan n° 2000-100-02)

Les usages et constructions relies aux carrieres, gravieres etsablieres, aux sites d’enfouissement, aux sites de depot demateriaux secs, aux usines et stations d’epuration des eauxusees, aux sites de dechets dangereux et au sited’entreposage, de traitement des boues, aux cours de ferrailleet de carcasses de vehicules ainsi qu’aux pistes de coursespour vehicules motorises sont prohibes sur l’ensemble de laMRC, a l’exception de ceux et celles identifies sur le planintitule « Elements de contrainte d’origine anthropique ».

A l’interieur des municipalites ou l’on retrouve les elementsde contraintes d’origine anthropique tels qu’identifies au plann° 2000-100-02, les dispositions suivantes doivent etre appli-quees : (. . .)

• 4 aout 2000: apres s’etre rendu sur les lieux et avoir pris desmesures, l’inspecteur Tremblay envoie une lettre a Furse con-cernant l’autorisation pour piste d’acceleration et lui confirme quel’activite exercee est conforme a la reglementation. Il lui transmetegalement un extrait du proces-verbal du CCU en ce sens.

• 13 mai 2003: l’inspecteur Gamache prepare un rapport apres avoirfait le calcul de distances et il indique le debut de la piste sur unplan. Il a calcule les distances a partir de l’endroit du depart descourses. Il a conclu que l’usage etait conforme a la reglementationet lui demande d’ameliorer deux points47.

• 2006: le RCI definit, entre autres, ce qu’est un cours d’eau :« Toute masse d’eau qui s’ecoule dans un lit, a debit regulier ou

46 Piece P-13.47 Piece DR-27.


intermittent, a l’exception du fosse de ligne et du fosse de chemin,est consideree pour l’application du present reglement »48.

• 2008: Homans demande un permis pour construire une piste demotocross et VTT. Le 3 octobre, la Ville lui accorde un permis desur lequel il est ecrit « la piste de course et toutes ses composantes(voies d’acces, stationnements. . .) doivent etre a l’interieur de lazone commerciale »49.

• 27 janvier 2009 : contrat d’achat50. Les intimes debutent la saisondes le printemps 2009;

• En debut de saison 2010 : l’inspecteur Gamache a ete verifie surles lieux si tout etait conforme. Le 13 mai 2010, il ecrit un rapportconcernant a la fois la piste d’acceleration et la piste de motocrosset VTT. Il conclut a de l’empietement ou encore legerempietement51.

• 13 avril 2011 : avis public pour regulariser l’absence du certificatde conformite de 10 reglements, dont le reglement n° 297. Neufreglements sont entres en vigueur le 13 juin 2011 et le reglementn° 297 est entre en vigueur le 19 septembre 2011.

135 Les intimes soutiennent qu’ils peuvent poursuivre leurs differentesactivites parce qu’ils beneficient de droits acquis. Le demandeur, au con-traire, fait valoir que l’usage effectif ne pouvait creer aucun droit acquisparce que le reglement n’etait pas en vigueur52.

48 Piece P-31.49 Piece DR-17.50 Piece P-19.51 Piece DR-28.52 Piece P-23.


136 Dans son volume, Zonage et urbanisme en droit municipal quebecois,l’auteur Me Marc Andre Lechasseur resume ainsi les conditionsd’existence de droits acquis53 :

La jurisprudence et la doctrine ont largement commente lesprincipales conditions d’existence des droits acquis. Nous resumer-ons ces conditions comme suit :

• les droits acquis n’existent que lorsqu’un usage derogatoireanterieur a l’entree en vigueur des dispositions prohibant untel usage etait legal;

• l’usage existe dans les faits puisque la seule intention duproprietaire ou de l’usager ne suffit pas;

• le meme usage existe toujours ayant ete continue sans inter-ruption significative;

• les droits acquis avantagent l’immeuble qui en tire profit, detels droits ne sont pas personnels, mais cessibles, et suiventl’immeuble dont ils sont l’accessoire;

• ils ne peuvent etre modifies quant a leur nature et parfoisquant a leur etendue bien que les activites derogatoires puis-sent etre intensifiees en certains cas;

• la seule qualite de proprietaire ne suffit pas quant aux droitsacquis.

137 Toutes les principales conditions d’existence n’etant pas remplies, letribunal est d’avis que les intimes ne beneficient pas de droits acquis.

Piste d’acceleration138 L’usage de la piste d’acceleration a debute en 1998, soit avant

l’entree en vigueur du RCI 2000-100 qui interdit les pistes de course.Quoique le controle interimaire est une technique de developpement quiest habituellement de nature temporaire54, ici le RCI 2000-100 esttoujours en vigueur.

53 Marc-Andre LECHASSEUR, Zonage et urbanisme en droit municipalquebecois, 2e ed., Cowansville, Wilson & Lafleur, 2009, p. 280.54 Lorne GIROUX et Isabelle CHOUINARD, « L’articulation du regimed’amenagement etabli par la Loi sur l’amenagement et l’urbanisme », dans Col-lection de droit 2015-2016, Ecole du Barreau, vol. 7, Droit public et administra-tif, Editions Yvon Blais, 2015, p. 407, a la p. 416.


139 Il est reconnu que les tribunaux saisis des recours specifiques prevusa la LAU jouissent d’un pouvoir discretionnaire.

140 En l’instance, il ne s’agit pas d’une derogation mineure qui permet-trait au tribunal d’appliquer le test de la ponderation entre la violationalleguee et le remede a appliquer. Il s’agit plutot d’une contraventionmajeure ou le tribunal ne peut intervenir que dans des circonstances ex-ceptionnelles qui se justifient au sens des arrets Pierrefonds (Ville) c.Chapdelaine55 et Tremblay c. Trottier56.

141 Dans l’arret Chapdelaine, il s’agissait de l’occupation d’un immeublenon conforme au reglement de zonage. Cet usage derogatoire qui a dure34 ans ne pouvait beneficier de droits acquis puisqu’il avait debute apresl’adoption du reglement de zonage qui destinait l’immeuble a un usagecommercial. Dans l’arret, le juge ecrit57 :

[31] A mon avis, le recours de l’article 227 de la Loi est porteurd’une certaine discretion dont le tribunal, dans les circonstances par-ticulieres et exceptionnelles, peut user afin de refuser le recoursmeme en presence d’une utilisation du sol ou d’une construction in-compatible avec la reglementation municipale. Cette discretions’etend donc non seulement au choix du remede approprie pour cor-riger une situation derogatoire mais aussi, exceptionnellement, lor-sque les circonstances l’exigent, a la possibilite de rejeter le recoursmeme apres avoir constate l’existence d’une situation derogatoire.

[32] Reprenant en cela l’idee exprimee par mon collegue Baudouindans l’arret Abitibi (Municipalite regionale de Comte d’), il me sem-ble normal que les tribunaux gardent une certaine marge de pouvoirdiscretionnaire de facon a pallier les injustices qu’une applicationstricte, rigoureuse et aveugle de la reglementation pourrait parfois en-traıner. Cette discretion me semble souhaitable, voire essentielle,pour permettre aux tribunaux de preserver, exceptionnellement et lor-sque les circonstances particulieres d’un dossier l’exigent, l’equilibreentre les interets de la communaute et ceux d’un individu.

(notre soulignement)

55 Pierrefonds (Ville) c. Chapdelaine [2003 CarswellQue 827 (C.A. Que.)] 2003CanLII 28303.56 Tremblay c. Trottier [2004 CarswellQue 1610 (C.A. Que.)] 2004 CanLII1209.57 Pierrefonds (Ville) c. Chapdelaine, prec. note 55, par. 31-32, 37 et 52.


142 Le juge Chamberland poursuit ainsi quant a l’exercice de ladiscretion :

[37] Les circonstances de ce dossier sont tout a fait particulieres etjustifient amplement le rejet exceptionnel du recours de l’appelante,meme si la derogation au reglement de zonage est flagrante et ne peutetre qualifiee de mineure ou de peu d’importance:

• la situation derogatoire a perdure pres de 35 ans avant que lamunicipalite n’entreprenne une demarche pour y mettre fin;

• les travaux qui ont mene a la transformation de l’immeuble enimmeuble a vocation strictement residentielle ont ete effec-tues en vertu d’un permis de construction delivre par lamunicipalite;

• la municipalite a attribue des numeros civiques a chacun desneuf logements sans soulever quelque probleme d’occupationque ce soit;

• l’immeuble a fait l’objet de plusieurs inspections de la partdes employes municipaux au fil des ans sans que le problemed’occupation ne soit jamais souleve;

• les intimes ont tente de corriger la situation en demandant unchangement de zonage que le Conseil municipal de la Villede Pierrefonds a refuse en depit de la recommandationfavorable de son Comite consultatif d’urbanisme;

• l’immeuble a toujours abrite des logements residentielspuisque, des sa construction en 1959, il comportait un loge-ment a l’etage, au-dessus de la salle de quilles et de l’espacecommercial, ce qui etait alors permis;

• la derogation n’a pas d’impact negatif sur l’environnementurbain puisqu’il s’agit d’un immeuble residentiel a un endroitou sa vocation devrait etre commerciale, et non l’inverse;

• la preuve revele que l’immeuble n’a fait l’objet d’aucuneplainte de la part des voisins.

143 Le juge Rochon, quant a lui, regroupe les criteres en trois categories,il ecrit :

[52] Sans elaborer une theorie generale sur le sujet, je retiens que lestribunaux refuseront la demande de la municipalite si nous re-trouvons l’ensemble des elements suivants :

• Il doit s’agir de circonstances exceptionnelles et rarissimes.

• L’interet de la justice doit commander le rejet du recours.


• La personne en contravention de la reglementationmunicipale doit avoir ete diligente et de bonne foi. Elle nedoit pas avoir connu la contravention prealablement.

• L’effet du maintien de la contravention ne doit pas avoir uneconsequence grave pour la zone municipale touchee.

• Il doit y avoir existence d’un delai deraisonnable (generale-ment plus de 20 ans) et inexcusable de la part de lamunicipalite.

• Il doit y avoir eu un acte positif de la municipalite (emissionde permis, perception de taxes).

• La situation derogatoire ne doit pas avoir pour effet de mettreen danger la sante ou la securite publique, l’environnement etle bien-etre general de la municipalite.

[53] A mon avis, ces criteres doivent etre regroupes en trois catego-ries :

• Les agissements de la municipalite.

• Les agissements de la personne en contravention.

• Les effets du maintien de la situation derogatoire.

144 La Cour d’appel dans l’arret L’Islet (Municipalite) c. Adam58 sou-ligne que les criteres developpes par le juge Rochon dans l’arret prece-dent ne sont ni determinants ni exhaustifs. D’autres criteres pourraientdonc etre pris en consideration afin de determiner si les circonstancessont, a ce point, exceptionnelles qu’elles justifient l’intervention memeau cas de derogation majeure.

145 Dans l’arret Tremblay c. Trottier59, la municipalite avait emis unpermis de construction en contravention de sa reglementation. Lamunicipalite demandait la demolition d’une construction derogatoire. LaCour d’appel, sous la plume de la juge Thibault a ecrit que le fait depermettre une derogation n’entraınera pas d’effet negatif majeur tandisqu’une application rigide de la reglementation cause une injustice a lamise en cause.

146 Afin de determiner si la discretion judiciaire peut etre exercee, il y alieu d’analyser les agissements de la Municipalite, ceux des intimes ainsique les effets du maintien de la situation derogatoire.

58 L’Islet (Municipalite) c. Adam, 2010 QCCA 215 (C.A. Que.).59 Tremblay c. Trottier, prec. note 56.


Les agissements de la Municipalite 147 C’est en raison de l’omission ou erreur d’un fonctionnaire de la

Municipalite que le reglement n° 297 dument adopte par la Municipaliten’est pas entre en vigueur rapidement. A partir de 1993, la Municipaliteet par la suite la Ville ont toujours agi comme si la zone commercialeetait en vigueur. La bonne foi n’est pas en cause.

148 Le reglement a ete modifie a plusieurs reprises suite a son adoptionpar la Municipalite. Au fil des ans, la Municipalite, ensuite la Ville, ontemis plusieurs permis a Furse puis aux intimes.

149 La piste d’acceleration etait en place avant l’entree en vigueur du RCI2000-100. Apres le 16 mai 2000, la Ville a toujours continue a conclure ala conformite de l’usage.

150 L’article 7.8 du reglement de zonage n° 234 a ete considere par lesinspecteurs Tremblay et Gamache ainsi que par le CCU. Les inspecteursont, entre autres, calcule les distances afin de verifier si la pisted’acceleration remplissait les exigences de cet article. Le calcul a ete faita partir du debut de la piste. Cette methode de calcul a ete critiquee par ledemandeur. Il allegue que les inspecteurs auraient plutot du calculer ladistance a partir de la limite des lots. Pour le demandeur, le site est indis-sociable du terrain de sorte que c’est la raison pour laquelle l’arpenteur-geometre Harel a travaille avec la limite des lots.

151 Les intimes et la Ville, au contraire, soutiennent que les distancesdoivent etre calculees a partir du debut de la piste puisque toute autreinterpretation conduirait a un non sens. Pour eux, la notion de terrain estcelle ou s’exerce l’activite. Les intimes soutiennent que si la distancedevait etre calculee a partir de la limite du terrain, cela aurait pour effetqu’il n’y aurait plus de zone de commerce contraignant. Ils referent alorsau calcul de l’arpenteur-geometre de Passille.

152 Le tribunal est d’avis que pour atteindre l’objectif vise par la regle-mentation, les distances doivent etre calculees a partir du site ou s’exercel’activite comme l’ont fait a differentes periodes les inspecteurs de laVille.

153 En somme, la situation derogatoire a perdure depuis plus de 17 ans.Tous les travaux qui ont ete faits l’ont ete a la connaissance de laMunicipalite. Les inspecteurs se sont rendus sur les lieux et ont confirmeque l’usage etait conforme.


Les agissements des intimes154 La preuve demontre que les intimes se sont soumis volontairement a

la reglementation avant meme qu’elle soit en vigueur tout comme l’avaitfait Furse auparavant. La bonne foi de chacun n’est pas mise en cause. Ilsont toujours effectue les verifications necessaires, soit aupres de laMunicipalite ou de la Ville.

Les effets du maintien de la situation derogatoire155 En l’instance, il n’y a aucun prejudice allegue par le demandeur con-

cernant la piste d’acceleration.156 Vu les circonstances exceptionnelles de la presente affaire, le tribunal

est d’avis qu’il doit exercer sa discretion judiciaire afin de permettre auxintimes de poursuivre les activites liees a la piste d’acceleration. Conse-quemment, il y a lieu de declarer que l’usage « piste de course » lie a lapiste d’acceleration est autorise en zone C-53. Cet usage devra toutefoisetre confine a cette zone et tout empietement dans la zone RE-52 devraetre corrige aux frais des intimes.

Piste de motocross et VTT157 Le demandeur allegue que les intimes exercent une activite incompat-

ible avec le reglement de zonage n° 234, et plus particulierement, qu’ilscontreviennent a l’article 7.8 de ce reglement et au reglement de controleinterimaire.

158 A l’instar de la Ville, les intimes font valoir que la piste amenageepour la pratique de motocross et du VTT ne constitue pas « un champ decourse de vehicules motorises » de sorte qu’elle n’est ni visee par le RCIni par l’article 7.8 du reglement de zonage n° 234. L’usage ne vise que lapratique de ce sport et n’est nullement un site de competition.

159 Le RCI 2000-100 est prohibitif en matiere de « champ de course ».Cette disposition doit etre interpretee de facon tres restrictive.

160 L’article 7.8 du reglement de zonage n° 234 refere a « champs decourse de vehicules motorises ». L’expression « champ de course » n’esttoutefois pas definie dans ce reglement.

161 Pour savoir si la reglementation s’applique a la piste de motocross, ilfaut tout d’abord determiner si la piste de motocross et de VTT est un


« champ de course ». Il faut donc s’en remettre au sens commun et auxdefinitions du dictionnaire. Le mot « course »est ainsi defini:

(. . .) 2º Sports. Epreuve de vitesse; competition sur une distance, unparcours donne.60

(. . .) 2. Competition de vitesse; epreuve sportive organisee consistanten une telle competition.61

162 En l’instance, la preuve non contredite a demontre qu’il n’y a euqu’une seule competition et que l’usage effectif est la pratique dumotocross et VTT par des amateurs.

163 Dans sa demande de permis, Homans ecrit, entre autres, « Par lapresente, moi, Simon Homans, futur proprietaire de Drag St-Elie, situeau 9327 chemin St-Elie a Sherbrooke, demande a M. Gerard Furse, ac-tuel proprietaire de Drag St-Elie, la permission que la ville de Sher-brooke m’accorde un permis pour la construction d’une piste en terrebattue pour moto-cross et quatre-roues ainsi qu’une plus petite piste pourles plus jeunes. Les deux pistes seront securisees par une cloture ».

164 Homans ne refere pas a une piste de course alors que le permis emispar la Ville refere a « La piste de course et toutes ses composantes (voiesd’acces, stationnements, . . .) doivent etre a l’interieur de la zonecommerciale ».

165 L’inspecteur Gamache a temoigne a l’effet qu’il a toujours traite lademande comme une piste de course. Il dit s’etre trompe lorsqu’il a emisle permis parce qu’il n’a pas pris en consideration le RCI de 2006, donc,il n’a pas fait de verification par rapport au cours d’eau. Selon lui, lepermis en 2008 aurait du faire l’objet d’un refus.

166 Toutefois ici, l’usage effectif de la piste de motocross et VTT n’estpas la course, mais bien la pratique du motocross, sans competition entreles usagers. Le RCI ne vise pas a interdire tout type de pratique de VTTou de motocross sur le territoire de la Ville.

167 La notion « champ de course » ou « piste de course » refere da-vantage a un usage qu’a une construction. Le tribunal estime que c’estl’usage effectif qui doit etre considere de sorte que la piste de motocrosset VTT n’est pas soumise a l’article 7.8 du reglement de zonage no 234,ni au RCI.

60 Le Petit Robert, dictionnaire, au mot « course ».61 Le Petit Larousse illustre 2008, au mot « course ».


168 Qu’en est-il du prejudice allegue par le demandeur?169 Gagnon a entrepris le present recours en septembre 2011. Il allegue

etre incommode par le bruit en referant a ce qu’il identifie comme etantdes competitions de motocross. Il temoigne a l’effet qu’il y avait unevenement de motocross durant la semaine, soit le mardi, mercredi oujeudi en fin de journee jusqu’a la brunante ainsi que la fin de semaine, dumatin jusqu’en fin d’apres-midi. Selon lui, en 2010, les heuresd’ouverture etaient les memes que l’annee precedente. Toutefois, ce n’estpas ce que la preuve demontre puisqu’au fil du temps, il y a eu un moinsgrand nombre d’heures.

170 Danaher a egalement temoigne concernant le bruit provenant de lapiste de motocross. La residence de Danaher est situee a environ 1,7 kmde cette piste. Il reside pres de la route 220 et a proximite du cheminRheaume qui sont toutes deux des routes provinciales. Il n’a jamais visitela propriete des intimes et il ne sait pas vraiment ou est la piste demotocross.

171 Danaher est flou concernant l’epoque ou il a connu Gagnon. De fait,il ne s’en souvient pas. Avant de rencontrer Gagnon, il dit avoir faitplusieurs plaintes concernant le bruit relatif a des competitions de VTT etmotocross. Il aurait appele une douzaine de fois on ne sait ni a quel en-droit ni a qui il aurait parle. Il dit avoir fait une plainte aux policiersconcernant le motocross, sans donner plus d’explications.

172 Danaher affirme que les competitions de motocross ont commence en2009 et plus tard, il dira finalement qu’il n’y a pas eu de competition. Iltente d’abord de situer a quel moment il a entendu du bruit en rapportaux activites de motocross et cela s’est avere complique. Contre-inter-roge, il dit se rappeler qu’en 2010 il y a eu deux activites de motocross,qu’en 2011 il n’a pas fait de suivi et qu’en 2012 et 2013 il n’a aucuneidee tout en ajoutant du meme souffle que c’est « trop souvent ».

173 A l’evidence, il ne sait pas vraiment quand se sont deroulees les activ-ites de motocross ce qui rend peu vraisemblable qu’il soit indispose ser-ieusement par le bruit.

174 CONSIDERANT que la pratique du motocross et du VTT est un us-age autorise dans la zone C-53;

175 CONSIDERANT que le demandeur Gagnon n’a pas reussi a demon-trer avoir subi un prejudice serieux en raison du bruit;

176 CONSIDERANT que la demande d’injonction permanente du de-mandeur Gagnon doit etre rejetee;


177 CONSIDERANT que la preuve a revele que la piste de motocross etVTT empiete legerement dans la zone RE-52, et qu’une partie du cheminmenant a l’activite motocross et VTT se retrouve dans la zone RE-5262;

178 CONSIDERANT que les empietements ne causent prejudice a per-sonne selon la preuve;

179 CONSIDERANT que le tribunal peut rendre des ordonnances afinque cesse l’empietement suivant l’article 227 LAU ainsi que tout remedeutile;

180 Le tribunal est d’avis qu’il y a lieu de clarifier la situation etd’ordonner que les intimes executent certains travaux correctifs a leursfrais afin de ne plus empieter dans la zone RE-52.

LES DEPENS181 La regle est a l’effet que la partie qui succombe supporte les depens, a

moins que par decision motivee, le tribunal n’en decide autrement63.Considerant l’erreur du fonctionnaire de la Municipalite, le tribunal es-time que le demandeur Danaher etait justifie de questionner la validite dureglement n° 297. En consequence, la Ville devra assumer les depens.

182 Quant a la requete du demandeur Gagnon, meme si la conclusion denature injonctive a ete rejetee, il n’en demeure pas moins que plusieursordonnances ont tout de meme ete rendues suivant l’article 227 LAU. Letribunal estime, en consequence, que le recours du demandeur doit etrerejete, sans frais.

POUR CES MOTIFS, LE TRIBUNAL:

Sur la requete en jugement declaratoire:183 DECLARE valide le reglement n° 297 lequel est entre en vigueur le

19 septembre 2011;184 AVEC DEPENS contre la Ville de Sherbrooke.184 Sur la requete suivant l’article 227 LAU :185 REJETTE la demande d’emission d’une injonction permanente du de-

mandeur Gagnon suivant l’article 227 de la Loi sur l’amenagement etl’urbanisme;

62 Piece DR-28.63 C.p.c., art. 477.


186 ORDONNE aux intimes de cesser toute activite commerciale enzone RE-52;

187 DECLARE que l’usage « piste de course » concernant les activitesliees a la piste d’acceleration est autorise en zone C-53;

188 ORDONNE aux intimes d’executer a leurs frais, dans les quatre-vingt-dix (90) jours du present jugement, les travaux necessaires afin quesoit retiree toute construction empietant en zone RE-52, dont le chemind’acces des coureurs, une partie du chemin de retour des coureurs,l’empietement du paddock reserve aux coureurs, la partie cloturee ayantservi aux derbys de demolition, le leger empietement de la piste demotocross et le chemin menant a l’activite de motocross et VTT;

189 ORDONNE aux intimes de mettre en place un ecran vegetal autour duterrain ou s’exerce l’activite « champ de course » dans les quatre-vingt-dix (90) jours du present jugement, conformement aux 4e et 5&sup-e;paragraphes de l’article 7.8 du reglement de zonage n° 234 de laMunicipalite de St-Elie d’Orford;

190 PREND ACTE des admissions des intimes a l’effet qu’ils n’exercentpas une activite de « champ de course » pour ce qui est du site demotocross et VTT situe au sud de leur propriete et consequemment, IN-TERDIT toute activite de course pour ce site de motocross et VTT;

191 SANS FRAIS.

Requetes rejetees.


[Indexed as: Laughlin v. Exmaeili]

Julia Laughlin and Edward Kennis, Plaintiffs and ManouchehrExmaeili also known as Manoughehr Esmaeiliaghabagher,

Soheila Babei, The Corporation of the Town of Markham, TheCorporation of the City of Toronto, John Doe and Aviva

Canada Inc., Defendants


Docket: 58359/2008

2015 ONSC 5490

M.L. Edwards J.



Municipal law –––– Municipal liability — Practice and procedure — Ac-tions — Miscellaneous –––– Plaintiff driver was involved in single vehicle acci-dent when she struck curb stone on road, adjacent to grassy boulevard — In1974, city assumed jurisdiction of road, which was boundary between city andtown — Driver brought action against both city and town — Town brought mo-tion for summary judgment, alleging that curb stone emanated from land undercity’s exclusive jurisdiction — Motion granted — Based on survey dated 2007and photographic evidence, it was clear that curb stone emanated from portionof grassy boulevard over which city had exclusive jurisdiction — Fact that townwas responsible for sidewalk and performed inspections of sidewalk and grassyboulevard did not attract legal liability establishing duty of of care to notify cityof potential problems — City had obligation under s. 44 of Municipal Act, 2001to keep roadway in reasonable state of repair — Action as against town wasdismissed.

Cases considered by M.L. Edwards J.:

Cooper v. Hobart (2001), 2001 SCC 79, 2001 CarswellBC 2502, 2001 Car-swellBC 2503, [2002] 1 W.W.R. 221, [2001] S.C.J. No. 76, 206 D.L.R. (4th)193, 96 B.C.L.R. (3d) 36, (sub nom. Cooper v. Registrar of MortgageBrokers (B.C.)) 277 N.R. 113, 8 C.C.L.T. (3d) 26, (sub nom. Cooper v.Registrar of Mortgage Brokers (B.C.)) 160 B.C.A.C. 268, (sub nom. Cooperv. Registrar of Mortgage Brokers (B.C.)) 261 W.A.C. 268, [2001] 3 S.C.R.537, REJB 2001-26862, [2001] B.C.T.C. 215, 2001 CSC 79 (S.C.C.) — re-ferred to

Hryniak v. Mauldin (2014), 2014 CarswellOnt 640, 2014 CarswellOnt 641, 37R.P.R. (5th) 1, [2014] S.C.J. No. 7, 46 C.P.C. (7th) 217, 27 C.L.R. (4th) 1,

Laughlin v. Exmaeili M.L. Edwards J. 335

(sub nom. Hryniak v. Mauldin) 366 D.L.R. (4th) 641, 2014 CSC 7, (subnom. Hryniak v. Mauldin) 453 N.R. 51, 12 C.C.E.L. (4th) 1, (sub nom.Hryniak v. Mauldin) 314 O.A.C. 1, 95 E.T.R. (3d) 1, 21 B.L.R. (5th) 248,(sub nom. Hryniak v. Mauldin) [2014] 1 S.C.R. 87, [2014] A.C.S. No. 7,2014 SCC 7 (S.C.C.) — followed


Municipal Act, 2001, S.O. 2001, c. 25s. 11(3) — considereds. 11(4) — considereds. 44 — considered

MOTION by town for summary judgment, dismissing action against it.

David Gillespie, for PlaintiffsDavid Boghosian, for Town of MarkhamDanette Cashman, for City of Toronto

M.L. Edwards J.:

Overview1 A sidewalk. A grassy boulevard. A curb stone. A motor vehicle acci-

dent. On November 28, 2006, the plaintiff was driving westbound onSteeles Avenue East minding her own business, when all of a sudden shestruck a curb stone in the lane that she was travelling in, adjacent to thegrassy boulevard. No one knows how the curb stone found its way fromthe grassy boulevard to the travelled roadway on Steeles Avenue.

2 The motion before me is a fight between the City of Toronto (“To-ronto”) and the Town of Markham (“Markham”) as to who is responsiblefor that portion of the grassy boulevard where the curb stone had laid,and thus who may be responsible for the curb stone getting onto SteelesAvenue. Markham brings its motion for summary judgment, which is op-posed by Toronto. The plaintiff supports Toronto in its response to Mark-ham’s motion.

The Facts3 As previously noted, this matter arises out of what was a single motor

vehicle accident on November 28, 2006 when the plaintiff struck a curbstone on the roadway adjacent to property located at 136 Steeles AvenueEast. Where the accident occurred, Steeles Avenue is two lanes west-bound and two lanes eastbound. The point of impact, according to thepolice Motor Vehicle Accident Report, would appear to have been oppo-


site the westerly portion of the driveway allowing access to 136 SteelesAvenue East (136). The impact occurred in what I will refer to as theslow lane, or the lane immediately adjacent to the grassy boulevard sepa-rating the travelled portion of Steeles Avenue East. The accident oc-curred at 8:55 p.m. and on all accounts it would have been dark at thattime of the year. As such, as reflected in a report prepared for plaintiffs’counsel by Scott Walters dated January 22, 2013, a curb stone on a road-way like Steeles Avenue East would present a “significant hazard forvehicles travelling normally, particularly at nighttime, as there wouldhave been a further reduced ability for a driver to detect such a hazard”.

4 Photographs were included in the motion materials before me. Theredoes not appear to be much doubt from those photographs that the curbstone struck by the plaintiff emanated from the grassy boulevard in frontof the property at 136.

5 As a result of an Agreement dated April 8, 1974, (the 1974 Agree-ment), Toronto assumed jurisdiction of Steeles Avenue East, which com-prised the boundary between the City of Toronto and the Regional Mu-nicipality of York.

6 As to the location of the geographical boundary line between Mark-ham and Toronto, the plaintiffs’ obtained a survey dated March 21, 2007which establishes that the boundary line between Markham and Torontois 2.3 metres north of the curb on Steeles Avenue East, on the grassyboulevard between the sidewalk and the roadway.

7 In order to gain access to their homes, including the property in ques-tion, Markham residents routinely pave over the grassy boulevard in or-der to access Steeles Avenue from their driveways. The evidence estab-lishes that many property owners, including the homeowners of 136(who were also named as defendants in this action), lined the paveddriveways with curb stones including the paved portion of the boulevard.

8 The grassy boulevards which separate the travelled portion of SteelesAvenue East from the sidewalk are typically maintained by the Markhamresidents fronting onto Steeles Avenue. This complies with one of Mark-ham’s local by-laws which require residents to maintain the grassyboulevard. The grassy boulevard on the south side of Steeles Avenue,being properties owned by residents of Toronto, would also be main-tained by the local residents.

9 The 1974 Agreement between Toronto and the Regional Municipalityof York resulted in Toronto having maintenance and inspection obliga-tions with respect to the travelled portion of the roadway of Steeles Ave-


nue East, while Markham and the Town of Vaughan continued to havethe rights and obligations with respect to the construction and mainte-nance of sidewalks on the north side of Steeles Avenue East.

10 The 1974 Agreement did not contemplate who had responsibility forthe grassy boulevard between the northerly curb of Steeles Avenue Eastand the sidewalks.

11 Markham conducts regular inspections of the sidewalks, including thesidewalk in question. The evidence filed on the motion before this courtconfirms that Markham would typically conduct three or more inspec-tions of the sidewalk on an annual basis, which would include the side-walk on the north side of Steeles Avenue East. Included in the inspectionof the sidewalks, there would also typically be an inspection of thegrassy boulevard. During these routine inspections, if Markham’s super-visor conducting the inspection identified a curb stone on the boulevardwhich was in violation of Markham’s Fouling of Streets By-law 191-89,steps would be taken to remove the curb stone only if the curb stoneposed some kind of safety hazard, such as if it was encumbering thesidewalk.

12 If a problem with the sidewalk or grassy boulevard was observed dur-ing the course of annual inspections, the evidence filed on this motionwould suggest that Markham inspectors conducting the inspection wouldin some circumstances address a problem immediately, i.e. by way ofexample if there was a sinkhole, while in other cases Markham wouldsimply contact the City of Toronto.

13 Possibly due to gaps in record keeping, Markham has no records ofever contacting Toronto to report any type of problem anywhere on theboulevard on the north side of Steeles Avenue prior to the subjectaccident.

14 As previously noted, Markham’s Fouling of Streets By-law 191-89deals in part with the placement of curb stones and states specifically:

No person shall obstruct, encumber, injure or foul any highway in theTown of Markham. Obstructions and encumbrances shall include butnot be limited to...concrete driveway curbs. All obstructions and en-cumbrances shall be removed by the owner or tenant...

Position of the Town of Markham15 Markham takes the position that the location where the curb stone

emanated from was not in Markham’s boundaries, as the boundary linebetween Toronto and Markham lay 1 to 1.5 metres north of the original


location of the curb stone, as established by the survey undertaken by theplaintiffs subsequent to the motor vehicle accident. As such, Markhamtakes the position that they did not have authority to enforce any Mark-ham by-law, such as the Fouling of Streets By-law referenced above.Simply put, Markham argues that both the survey evidence and the pho-tographic evidence confirm that the curb stone emanating from that por-tion of the grassy boulevard, was within Toronto’s exclusive jurisdiction.

Position of the City of Toronto16 Toronto acknowledges that in certain circumstances the law of negli-

gence may be extended to a Municipality where there is a reasonableforeseeability of harm. (See Cooper v. Hobart, 2001 SCC 79 (S.C.C.)).As well, it is acknowledged that under section 44 of the Municipal Act,S.O. 2001 c. 25, a Municipality that has jurisdiction over a roadway has aduty to keep that roadway in a state of repair that is reasonable in thecircumstances, taking into consideration its character and location.

17 As to the application of Markham’s Fouling of Streets By-law, To-ronto points to section 11(3) of the Municipal Act which provides broadauthority to both upper and lower tier Municipalities to enact by-lawswithin the “sphere of jurisdiction” that may impact their residents ormembers of the public generally. Under section 11(4) of the MunicipalAct, highways are listed as the first “sphere of jurisdiction”.

18 In its factum, counsel for Toronto notes that the only applicable re-striction that a lower tiered Municipality has in passing a by-law is if the“sphere of jurisdiction” does not fall within the exclusive domain of anupper tier Municipality. “Highways” are classified as a sphere of juris-diction that is non-exclusive to the upper tier Municipality. Counsel forToronto notes that at the time of the motor vehicle accident, Toronto didnot have a by-law in place which would conflict with Markham’s by-lawas it applied to the road allowance adjacent to 136.

19 It is argued on behalf of Toronto that based on the engineering reportof Scott Walters, if Markham had enforced its Fouling of Streets By-lawthen the subject motor vehicle accident would not have occurred.

Analysis20 The Supreme Court of Canada, in its often referred to decision of

Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.), makes clear that there is nogenuine issue requiring a trial when a motion judge is able to reach a fairand just determination of the merits on a motion for summary judgment.


This will necessarily be the case when the evidence filed on the motionfor summary judgment allows the judge to make the necessary findingsof fact; allows the motion judge to apply the law to the facts; and theprocess is proportionate, more expeditious and a less expensive means toachieve a just result.

21 I am satisfied, based on the Plaintiff’s survey dated March 21, 2007together with the photographic evidence, that the curb stone struck by theplaintiff emanated from a portion of the grassy boulevard over which theCity of Toronto had exclusive jurisdiction. The geographical boundaryline between Markham and Toronto is 2.3 metres north of the curb onSteeles Avenue East. While homeowners undoubtedly would never dis-tinguish between the grassy boulevard to the north of the boundary lineand to the south of the boundary line, the fact still remains that the pieceof property where the curb stone emanated from was property overwhich Toronto had exclusive jurisdiction.

22 The fact that Markham had responsibility for the sidewalk and wouldconduct annual inspections of the sidewalk, which would include thegrassy boulevard, does not attract legal liability to Markham establishinga duty of care to notify Toronto of any and all potential problem areas. Inthat regard, Markham’s representative in its examination for discovery,was asked what Markham would do if a problem on either the sidewalkor right-of-way was discovered. Mr. Robert Walker stated that if therewas a serious problem it would be repaired right away. Further in hisexamination for discovery, Mr. Walker indicated that it was not allhazards that would be reported or repaired, as the City of Toronto wouldhave been doing its own patrolling and, therefore, there was an expec-tancy that the City of Toronto would also see the hazard.

23 The hazard in question, i.e. the curbstone, was located on propertyover which Toronto had exclusive jurisdiction and, as such, in my viewToronto had the obligation to remove the curb stone or at least deal withit in such a way that it could not become a hazard. Toronto had the obli-gation under section 44 of the Municipal Act to keep the roadway in astate of repair that was reasonable in the circumstances.

24 Whether the City of Toronto on the facts of this case met its duty ofcare is not for this court to ultimately determine. The only issue that thiscourt has to determine is whether Markham had any responsibility withrespect to the curb stone. The evidence filed on this motion clearly estab-lishes that the curb stone was not on property over which Markham hadany legal responsibility, and as such the motion for summary judgment is


granted and the action as against Markham is dismissed. If the partiescannot agree upon costs, submissions can be made to the court within 15days from the date of receipt of these reasons, limited to two pages inlength. I would encourage the parties, however, to resolve the question ofcosts if at all possible.

Motion granted.

Newhook v. St. John’s (City) 341

[Indexed as: Newhook v. St. John’s (City)]

Todd Newhook, Plaintiff and City of St. John’s, Defendant

Newfoundland and Labrador Provincial Court

Docket: St. John’s 0113C00322

Lois J. Skanes Prov. J.


Judgment: November 2, 2015

Municipal law –––– Municipal liability — Miscellaneous –––– Trespass —Plaintiff owned rental property in defendant city — While installing sidewalk,city cut away portion of owner’s driveway — Owner claimed excavation madehim unable to rent unit, and was unhappy with patch job done by city so haddriveway stripped, regraded and repaved — Owner brought action against cityalleging trespass, for $9,296.06 in damages for damage to driveway, advertisingand lost rent — Action allowed in part — City clearly entered onto owner’s pro-perty, one foot of driveway was excavated, and city did not provide explanationfor excavation or notice to owner — City did not produce any statutory authoritythat permitted it to carry out public works without notice to owner and, as claimwas not in nuisance, there was no statutory immunity under City of St. John’sAct — No evidence existed that work required excavation of owner’s drivewayand no colour of right or authority to proceed as city did — However, no aggra-vating circumstances were present, one foot of driveway was on road reserva-tion, so cut and patch would have been required anyway, and driveway had al-ready been cut so requiring city to pay to have entire driveway redone not fairand reasonable — Owner adduced no evidence to show value of property wassignificantly affected or loss of rental income occurred as result — Plaintiffawarded $500.

Cases considered by Lois J. Skanes Prov. J.:

Fry v. St. John’s (City) (2015), 2015 CarswellNfld 89, 1144 A.P.R. 42, 366Nfld. & P.E.I.R. 42 (N.L. Prov. Ct.) — considered

Hranka v. Zeibak (2006), 2006 BCSC 1232, 2006 CarswellBC 2036, 40C.C.L.T. (3d) 363, 46 R.P.R. (4th) 62, [2006] B.C.J. No. 1878 (B.C. S.C.) —considered

Mann v. Saulnier (1959), 19 D.L.R. (2d) 130, [1959] N.B.J. No. 12, 1959 Car-swellNB 41 (N.B. C.A.) — considered

Pyper v. Crausen (2008), 2008 CarswellOnt 1455, 37 C.E.L.R. (3d) 257, [2008]O.J. No. 1042 (Ont. S.C.J.) — considered



City of St. John’s Act, R.S.N. 1970, c. 40Generally — referred to

City of St. John’s Act, R.S.N. 1990, c. C-17s. 52 — considereds. 81 — considereds. 179.1 [en. 1996, c. 18, s. 3] — considered

ACTION by property owner against city for damages for trespass, loss of rentalincome, and repairs to driveway.

Todd Newhook, for himselfLinda Bishop, for Defendant

Lois J. Skanes Prov. J.:

1 The Plaintiff is the owner of 17 Exmouth Street [hereinafter “the pro-perty”], in the City of St. John’s, Newfoundland and Labrador. On orabout July 4, 2013, the Defendant, or its agent, which was installing newsidewalks in the area, cut away a portion of the Plaintiff’s driveway. Inthe Statement of Claim, the Plaintiff says that the Defendant committed atrespass or breach of contract and he seeks damages in the amount of$9296.06 on account of damage to the driveway and lost rents.

2 In its reply, the Defendant (hereinafter this term is used to refer to theDefendant, its agents and employers) denied having trespassed and de-nied any breach of any duty and pleaded sections 52, 81 and 179.1 of theCity of St. John’s Act, RSNL 1990, c. C-17 as amended.

3 The Plaintiff testified that the property is a two unit rental. The bot-tom unit was rented throughout the period. The upper unit had beenleased for $1300 per month for the period from September 1, 2012 toAugust 31, 2013, however, the tenants skipped out early. A formal noticewas sent to the tenants on June 21, 2013, ordering the unit vacated byJune 30, 2013.

4 The Plaintiff began advertising and on July 4, 2013, he went to thepremises where he found that the sidewalk and a part of his lawn anddriveway had been removed. Ultimately the sidewalk was replaced alongwith the portion of the lawn and strip of driveway which had been exca-vated by or on behalf of the Defendant.

5 The Plaintiff testified that he received no notice from the Defendantthat they were entering onto his property. He says that when he discov-

Newhook v. St. John’s (City) Lois J. Skanes Prov. J. 343

ered the condition that the property was in on July 4, 2013, he was in theprocess of trying to show the upper unit to potential tenants. He says thatdue to the tear up he was unable to rent the property. The Plaintiff doesadmit that no prospective tenants actually said that the tear up was anissue for them. Also the Plaintiff says that he anticipated that peopleviewing the property at that time would have been moving in in Septem-ber, though he was looking for them to rent it as of July or August, 2013.

6 The Plaintiff entered into evidence photographs showing that the newsidewalk and patch of driveway were in place as of approximately July24, 2013 and the lawn was repaired sometime later.

7 The Plaintiff says that he continued to be unable to rent the unit untilmid-September 2013 and even then he was only able to achieve $1100per month in rent as opposed to the previous amount of $1300 per month.He asserts that this was due to the unsightly condition that the propertywas in due to the City’s operations in July 2013 which caused him tomiss the window for renting in the area near the university where theproperty is located.

8 In addition to the cost of the new driveway the Plaintiff seeks$6188.56 for advertising and lost rent.

Trespass9 In Canadian Encyclopedic Digest, trespass is noted as follows:

158 Trespass is actionable without proof of damage. However, wherethere has been slight injury or none at all, only nominal damages willbe awarded. This is particularly so where the trespass was technicalor unintentional or where the defendant acted under a colour of rightor trespassed in order to avert the possibility of danger to person orproperty.

159 A person who enters a retail store for the unauthorized purposeof shoplifting is liable in trespass for nominal damages without thestore having to prove that it sustained actual damage. However, thestore cannot apportion the cost of its security measures among shop-lifters on a per arrest basis and recover them as actual damages. Theobjective of deterring crime is largely beyond the realm of tort law.The costs of combating theft and crime generally are borne by every-one, on a collective basis through police services and on a privatebasis through security and alarm systems, fences, locks and so on.These are societal costs and cannot readily be recovered from offend-ers on an individual basis by way of civil process.


160 In general, injuries to property, when unattended by circum-stances of aggravation and especially when they take place undera fancied right, result only in an award of damages proportionedto the actual pecuniary loss sustained, measured by what mighthave been reasonably anticipated as probable.

161 Where a trespasser commits an injury to the land trespassedupon, the proper measure of damages is the amount by which thevalue of the land has been depreciated by that injury.

162 The cost of repairs or of restoring the land to its former con-dition may coincide with the diminished value of the land result-ing from the trespass. Where judgment in a trespass action isgiven in the amount expended for repairs, it is so given only be-cause the court has found it to represent the diminished value ofthe property. Where the cost of repairs is not in line with the actualdiminished value of the property, this method of assessing damagesis not proper. However, the British Columbia courts take a differentapproach, and will award the cost of restoration if reasonable. Nor isit appropriate to award general damages in the amount of a financialbenefit accruing to the defendant as a result of the trespass, althoughsuch a benefit may be considered in the context of an award of puni-tive damages.

163 A successful plaintiff in a trespass action is entitled to dam-ages awarded based on the principle of restitutio in integrum. Ifthe measure of damages is the cost of repair, it must be reasona-ble, practical and fair in all circumstances.

10 In the instant case, it is not contested by the Defendant, who called noevidence, that there was an entry onto the Plaintiff’s land. Indeed, it isconceded that approximately one foot of the driveway that they exca-vated was on the Plaintiff’s property and was not in the road reservation.There was no evidence called to explain how this occurred, why it wasnecessary (if indeed it was) and any steps taken to communicate with theproperty owner prior to entering onto his property. The Plaintiff did pro-vide a copy of a Notice to Residents which he found on the property afterthe tenants left. This was a notice from the Defendant’s contractor, Pyra-mid Construction, advising that work was being done in front of thedriveway and asking that cars not be parked there when requested andthat residents be mindful of the construction activities and safety.

11 In Mann v. Saulnier, [1959] N.B.J. No. 12 (N.B. C.A.) at para. 8, it isstated that:

8 Trespass to land is the act of entering upon land, in the possessionof another, or placing or throwing or erecting some material object


thereon without the legal right to do so. In Salmond on Torts, 12thed., pp. 160-1, there is the following statement: “In all such cases, inorder to be actionable as a trespass, the injury must be direct, withinthe meaning of the distinction between direct and consequential inju-ries. ... It is a trespass, and therefore actionable per se, directly toplace material objects upon another’s land; it is not a trespass, but atthe most a nuisance or other wrong actionable only on proof of dam-age, to do an act which consequentially results in the entry of suchobjects. To throw stones upon one’s neighbour’s premises is thewrong of trespass; to allow stones from a ruinous chimney to fallupon those premises is the wrong of nuisance.”

12 Based on the foregoing, the facts of the instant case give rise to tres-pass and not nuisance. The Defendant actually entered onto the Plain-tiff’s land and cut away a portion of his driveway.

13 With respect to damages, Remedies, David Wright, The FederationPress, 2010 at page 48, though an Australian text, provides the followinguseful summary:

The tort of trespass to land is actionable per se. This means that dam-ages can be recovered without proof of loss. This is very differentfrom the tort of negligence which requires loss. According toGaudron and McHugh JJ in Plenty v Dillon:

[T]he purpose of an action for trespass to land is notmerely to compensate the plaintiff for damage to land.That action also serves the purpose of vindicating theplaintiff’s right to the exclusive use and occupation of hisor her land.

Damages are awarded for two reasons:

1. to vindicate the plaintiff’s right to exclusive possession; and

2. to compensate for loss.

14 If the defendant causes a loss to the plaintiff’s land, there are twomeasures of loss:

1. the diminution in value; or

2. the restoration cost.15 Pyper v. Crausen, [2008] O.J. No. 1042 (Ont. S.C.J.), provides the

following commentary in a Canadian context: 30 In Remedies in Tort, supra, it states at chapter 23 paras. 40-41 that“where a trespasser commits an injury to the land trespassed upon,the proper measure of damages is the amount by which the value ofthe land has been depreciated by that injury.” The author goes on to


state that “the cost of repairs or of restoring the land to its formercondition may coincide with the diminished value of the land result-ing from the trespass. Where judgment in a trespass action is given inthe amount expended for repairs, it is only so given because the courthas found it to represent the diminished value of the property. Wherethe cost of repairs is not in line with the actual diminished value ofthe property, it is not a proper method of assessing damages”. (SeeGendron v. Dalhousie, [1977] N.B.J. No. 130, 1977 CarswellNB 365(Q.B.) at para. 6.)

31 This statement of the law does not accord with some Canadiancases where, even though there was no evidence of the land beingdepreciated by the trespass, and in fact in some cases there was evi-dence that the value of the land had increased despite the trespass,damages were awarded based on the principle of restitutio in in-tegrum. In other words, the successful plaintiff in a trespass ac-tion is entitled to “that sum of money which will put the partywho has been injured, or who has suffered, in the same positionas he would have been in if he had not sustained the wrong forwhich he is now getting his compensation or reparation”. (Mayneand McGregor on Damages, 12th ed., p. 6; Carr-Harris v. Schacter& Seaton (1956), 6 D.L.R. (2d) 225 (Ont. S.C.); Peters v. Dia-mond, [1964] 1 O.R. 139 (Co. Ct.); Pretu v. Donald Tidey Co.Ltd., [1966] 1 O.R. 191 (H.C.); Athwall v. Pania Estates Ltd.,(1981), 11 C.E.L.R. 17, (B.C.S.C.))

32 There is no disagreement that, if the cost of repair is the mea-sure of damages, it must be reasonable, practical and fair in allthe circumstances. (Remedies in Tort, supra, chapter 23, para.41.1; Kates v. Hall, [1991] B.C.J. No. 263, 1991 CarswellBC 26(C.A.)) Some factors that must be taken into account are (1) thecost of repairs when compared to the reduction in the value ofthe property resulting from the trespass, (2) the time, logisticsand property damage involved in implementing the restorationwork, (3) the likely success of the restoration efforts, (4) the ac-tual benefit to the plaintiff of meticulous restoration when com-pared to the cost to the defendant over and above the diminutionin the value of the property, and (5) the use to which the plaintiffmade of the property and the impact on the use occasioned bythe trespass.

16 Hranka v. Zeibak, [2006] B.C.J. No. 1878 (B.C. S.C.) deals with asituation where the Defendant encroached on back lands of the Plaintiff.Though not particularly useful to the Plaintiff’s property, it did belong tothat property and the reckless encroachment was legitimately the subject


of the action in trespass. The issue arose, however, as to how to deter-mine damages given that the estimates to reinstate the property werewildly disparate. The first step was noted to be to determine the pre-trespass condition of the property:

25 In order to determine what is reasonable it is first necessary todetermine the condition of this area of the Hranka property before thetrespass and the improvements were done. The main questions arewhether trees were cut, boulders moved, retaining walls established,and the land re-contoured.

17 The court further indicated that: 29 The burden of proof as to the extent of and effect of the trespasson the Hranka property is on the plaintiff. An adverse inference isgenerally not appropriate unless a prima facie case has been estab-lished: Cranewood Financial Corp v. Norisawa, [2001] B.C.J. No.1566, 2001 BCSC 1126. The plaintiff here must establish the extentto which trees were cut, soil was moved, rocks were moved, or thesoil or the property was recontoured. The allegation in the statementof claim is that “the defendant deliberately destroyed the natural treesand vegetation on the [southern portion of the Hranka property] andcaused extensive landscaping and other improvements”.

Statutory Authority18 The Defendant argues that it has the power to carry out public works

in the area of streets. It points to Rogers in the Law of Canadian Munici-pal Corporation (2nd Edition) where it states at page 309:

It is a general proposition of municipal law that a municipal corpora-tion possesses and can exercise: 1) powers expressly given by statute;2) those necessarily or fairly implied in or incident to the expresspowers; and 3) those essential to the effectuation of the purposes ofthe corporation not simply convenient by indispensable (b). Munici-pal purposes are determined by reference not only to those which areexpressly stated but also to those which are compatible with the pur-pose and object of the enabling statute (b1).

19 The Defendant claims that in order to carry out its statutory obliga-tions it must impliedly be entitled to incidentally encroach onto privatelands for a limited time and purpose, followed by full repair and rein-statement. While this may be the case, I have not been referred to anystatutory authority permitting the Defendant to enter onto and damageprivate property without notice to the owner of the property and withoutappropriate reinstatement of the land.


Analysis20 In the instant case, the Defendant entered onto the Plaintiff’s property

and cut away a portion of his driveway without notice to him. This is notan action in nuisance from which the Defendant may find immunityunder the City of St. John’s Act, RSN 1970, c. 40.

21 As noted in Fry v. St. John’s (City) [2015 CarswellNfld 89 (N.L.Prov. Ct.)] 0114C00201:

12 In addition, Section 179 provides:

179. The city shall not be liable for a loss or damage toproperty resulting from flooding by water occasioned byrainstorms or thaws, or the breaking of a water main orsewer pipe for a cause over which the city has no control.

13 This section purports to limit the liability of the City for damagesfor flooding or the breaking of a water main or sewer pipe. In St.John’s (City) v. Lake, [2000] N.J. No. 268 (Nfld. C.A.), the New-foundland Court of Appeal interpreted this section and held:

33 Section 179 of the City of St. John’s Act, creates suchan exemption. The section does not explicitly provide forimmunity from liability arising from any action mandatedor authorized by the City’s constating statute, nor does itdo so implicitly. Rather, it exempts the City from liabilityfor damages resulting from specified circumstances, not-withstanding that the City may have been otherwise liablein nuisance at common law, if the circumstances givingrise to the nuisance are those specified in the exemption.Section 179 must be applied in that context and not in thecontext of the defence of statutory authority.

22 Section 179.1 of the City of St. John’s Act further states that: 179.1 The city is not liable for a nuisance.

23 There was no evidence presented by the Defendant to establish thatthe road reservation extended for the two foot distance excavated or thatit had any other colour of right to the extent of the excavation. Beyondthis there was no evidence that the City made any attempt to contact theproperty owner to discuss any necessary encroachment or reinstatementissues.

24 I have been directed to no authority for the Defendant to proceed as itdid. There is undoubtedly and by implication some authority for the De-fendant to enter onto private property to enable it to carry out its works.For instance, even to excavate to a private boundary may entail standing


on private property. There is also explicit statutory authority for the De-fendant to enter onto private property in defined circumstances and in amanner set out in legislation. The Defendant has not shown on the factsbefore me statutory or implied authority to enter onto the Plaintiff’s pro-perty in this manner that it did. There was therefore a trespass.

25 The question remains as to whether only nominal damages ought tobe awarded or has the Plaintiff proven that more than nominal damagesare appropriate in the circumstances.

26 The Plaintiff continued to be dissatisfied with the manner in whichhis driveway was reinstated as of July 2013. The Defendant had patchedthe asphalt surface and this was noticeably blacker than the original,faded portion. It is noteworthy, however, that the photographs of thedriveway show that there were areas where it appears to have been previ-ously damaged, patched or repaired. In September 2015 the Plaintiff hadthe asphalt removed from the entire driveway and it was graded andrepaved. The invoice for work was $3107.50.

27 Despite the Defendant having entered onto the Plaintiff’s propertywithout authority, I do not find any facts which satisfy me that the injuryto the property was done in such a manner as to be said to be “attendedby circumstances of aggravation”. The Defendant does have the right andobligation to maintain the streets and sidewalks and some disruption is tobe expected. This, of course, is not to say that the Defendant can do as itwants, without regard for private property owners, merely that the factsbefore me do not establish aggravating circumstances.

28 In the instant case, the damages may be based upon the diminishedvalue of the land or the amount expended for repairs if reasonable, prac-tical and fair.

29 It appears on the facts that one foot of the Plaintiff’s driveway was onhis property; however, approximately one foot of the asphalt drivewaywas in the road reservation. Whether the City encroached or not, therewas going to be a strip of new asphalt at the end of the driveway. Addi-tionally, given that the driveway was previously cut, it is difficult to seehow another cut was going to affect the property value in any significantway and indeed there was no evidence of diminution of value tendered. Ido not find in these circumstances that the replacement of the drivewayat a cost of $3107.50 could be said to reflect the diminution of value norcan it be said to be reasonable, practical and fair in all of thecircumstances.


30 With respect to the lost rental claim, it is of note that no evidenceother than the assertions of the Plaintiff was tendered. There was no in-dependent evidence to support that any lost rentals were occasioned bythe sidewalk work. Public works such as these are standard and althoughthere may be some short-term inconvenience, I am unable to concludethat an ongoing inability to rent the property — especially since it wasgenerally reinstated well before the end of July 2013 — could be foundmore likely than not to have been occasioned by the trespass whichoccurred.

31 In all of the foregoing, the Plaintiff is awarded damages in the amountof $500.00.

Action allowed in part.

MUNICIPAL & PLANNING LAW REPORTS - Thomson ...

Documents

Transcript of MUNICIPAL & PLANNING LAW REPORTS - Thomson ...