COURT OF APPEAL FOR ONTARIO

CITATION: Detlor v. Brantford (City), 2013
    ONCA 560

DATE: 20130913

DOCKET: C53084

Doherty, Laskin and Simmons JJ.A.

BETWEEN

Aaron Detlor and The Haudenosaunee Development
    Institute

Applicants (Appellants)

and

Corporation of the City of Brantford

Respondent (Respondent)

BETWEEN

Hazel Hill

Applicant (Appellant)

and

Corporation of the City of Brantford

Respondent (Respondent)

BETWEEN

Ruby Montour and Floyd Montour

Applicants

and

Corporation of the City of Brantford

Respondent (Respondent)

Louis C. Sokolov and Jessica Orkin, for the appellants, Aaron
    Detlor, The Haudenosaunee Development Institute and Hazel Hill

Neal Smitheman, W. Thomas Barlow and Tracy A. Pratt, for
    the respondent, The Corporation of the City of Brantford

Michael Beggs, for the intervener the Attorney General
    of Canada

Heard: January 17, 2013

On appeal from the order of Justice Harrison S. Arrell of
    the Superior Court of Justice, dated November 19, 2010.

Laskin J.A.:

A.

overview

[1]

The City of Brantford lies within the Haldimand Tract, an area of land
    stretching six miles wide on both sides of the Grand River.  This land was once
    held by the Haudenosaunee people, who now claim that they never surrendered the
    land and that they alone have the right to control how it is developed.

[2]

In the fall of 2007, the traditional governing body of the Haudenosaunee
    created the appellant, The Haudenosaunee Development Institute (HDI), for the purpose
    of regulating the development of private property in Brantford.  HDI demanded that
    developers obtain its approval and pay it fees in order to proceed with their
    projects.  When several developers refused to comply with these demands, HDI
    and its supporters began a series of measures to stifle development in the
    city.  They blockaded development sites; they obstructed public rights of ways;
    and they forced work stoppages by standing or sitting in front of equipment. By
    the spring of 2008, these measures were occurring almost daily.

[3]

The Brantford City Council responded in May 2008 by passing two by-laws:
    by-law 63-2008, which prohibited unauthorized interference with development and
    construction on private property; and by-law 64-2008, which prohibited the
    imposition of unauthorized fees or other conditions for development. Council
    discussed these two by-laws with its solicitor at a lengthy meeting behind
    closed doors, and then, in a brief open meeting, passed them unanimously and
    without discussion.

[4]

Several days later Brantford sought an interlocutory injunction to
    restrain HDI and its supporters from engaging in the activities prohibited by
    the by-laws.  The appellants applied to quash the two by-laws.

[5]

Arrell J. heard both motions.   He granted the interlocutory injunction
    and dismissed the application to quash the by-laws.  The appellants sought
    leave to appeal the interlocutory injunction but leave was denied.  The
    appellants appeal the dismissal of their application to quash to this court.
    Their appeal raises four issues:

(1)

Did the application judge err by holding that the passage of the by-laws
    complied with the open meeting requirement in s. 239 of the
Municipal Act
,
2001
?

(2)

Did the application judge err by finding that the by-laws were not
    passed in bad faith?

(3)

Did the application judge err by holding that the by-laws did not breach
    either s. 2(b) or s. 15 of the
Canadian

Charter of Rights and
    Freedoms
?

(4)

Did the application judge err by holding that by-law 64-2008 was not
    rendered invalid or inapplicable to the Haudenosaunee by the federal
    legislative power in relation to Indians under s. 91(24) of the
Constitution
    Act 1867
?

[6]

The Attorney General of Canada intervened as of right on this appeal on
    a narrow issue raised in one paragraph of the appellants notice of
    constitutional question.  The appellants did not pursue this issue in oral argument
    and we did not call on the Attorney General to respond to it.  I will deal with
    this issue later in these reasons.

B.

factual background

(1)

The Haudenosaunee
[1]

[7]

The Haudenosaunees claims to the Haldimand Tract originate in two
    documents: the Nanfan Treaty of 1701 and the Haldimand Proclamation of 1784.
    The Proclamation recognizes the Haudenosaunees right to use and possess all
    lands six miles deep from each side of the Grand River beginning at Lake Erie
    and extending in that proportion to the head of the said river which them and
    their posterity are to enjoy forever.  Of this tract of land, three parcels
    are partly located within the city limits of Brantford: the Johnson Settlement,
    the Eagles Nest Tract, and the Oxbow Tract.  The Haudenosaunee claim that they
    never surrendered these three parcels and that the Crown improperly sold them
    in the 1840s.

[8]

Before the application judge, the parties led expert evidence on whether
    the Haudenosaunee had validly surrendered these three parcels.  The application
    judge preferred the citys expert, Ms. Joan Holmes.  According to Ms. Holmes,
    between 1844 and 1846, the Haudenosaunee surrendered these three parcels for
    sale.

[9]

Moreover, as the application judge noted at para. 51 of his reasons, the
    Haudenosaunee have never sued the federal or provincial government for the
    return of these three parcels or for title to them.  The Haudenosaunee did
    start a lawsuit against both governments in 1995, and have filed numerous land
    claims, but all their claims have been solely for compensation, never for
    title.  Whether the Haudenosaunee do have a claim for title to any land within
    the city of Brantford is not an issue on this appeal.

(2)

The Haudenosaunee Development Institute (HDI)

[10]

The
    customary, unelected governing body of the Haudenosaunee is the Haudenosaunee
    Confederacy Chiefs Council.  The Chiefs Council created HDI in September
    2007.  The applicant Montour and the appellants Hill and Detlor are principals
    of HDI.  HDIs terms of reference stipulate that: the HDI will identify, register
    and regulate development within the Haldimand Tract.  According to HDI policy,
    the land in and around Brantford falls within a red zone  a zone where there
    is to be zero to minimal development.

[11]

HDI
    is not a lawful government authority.  It has no statutory power to compel
    developers to accede to its demands.  Nonetheless, it insists on the right to
    approve development projects, and to require developers to undertake
    archeological and environmental assessments, pay administrative levies ranging
    from $3,000 to $7,000 depending on the size of the project, and make annual
    payments for these projects.

[12]

When
    HDI began to make its demands, several development projects were underway in
    Brantford.  They included a hotel, a manufacturing facility, a residential
    subdivision, and some retail stores.  The developers for each project had
    obtained the required provincial and municipal permits and approvals.  The
    application judge found that these projects were of significant economic
    importance to the community (at para. 5).

[13]

What
    occurred when the developers of these projects refused to meet HDIs demands is
    best described by the findings of the application judge.  The appellants did
    not mount any substantial challenge to these findings. On my review of the
    record, the application judges findings are well supported  indeed
    overwhelmingly supported  by the evidence before him.

(3)

The Findings of the Application Judge Concerning Events Taking Place in
    the City of Brantford During 2007 and 2008

[14]

Although
    the application judge made his findings of fact on the Citys interlocutory
    injunction motion, these findings provide a factual context for assessing the
    appellants challenge to the by-laws.

[15]

The
    application judge made general findings on the appellants disruptive measures:

·

Principals and supporters of HDI systematically blockaded these
    development sites commencing in 2007 (para. 6).

·

These activities escalated into 2008 such that for all intents
    and purposes these projects came to a halt (para. 6).

·

The evidence presented by the City, and not in any plausible way
    disputed by any of the respondents, is overwhelming that work blockades,
    stoppages and confrontations at the development sites were escalating in the
    early spring of 2008 to the point of being a daily occurrence (para. 7).

·

The blockades of the various specified sites continued
    throughout the summer of 2008 and indeed based on the evidence before me
    continued up to the start of the hearing of this application in early 2009
    (para. 16).

[16]

The
    application judge also made findings in connection with HDIs demands on one
    specific project  the Hampton Inn  being developed by Kingspan and others:

·

I find as a fact that Kingspan and the developers of the Hampton
    Inn met with Ms. Hill and Mr. Detlor as principals of HDI.  They were told they
    must submit as application, an archaeological study and an environmental study.
    The developer of the Hampton Inn was also told that an application fee of
    $3000.00 was required and if HDI approved the project, the title in the land
    would be assigned to HDI in exchange for a long term lease and that annual
    development fees would be levied. The fee was not paid and the site was shut
    down regularly.  Mr. Deltor representing HDI demanded a fee in the amount of
    $7,000.00 from Kingspan.  This fee was not paid and there were on-going work
    stoppages, in spite of an interim injunction being issued.  Kingspan eventually
    abandoned its project in Brantford.  This evidence is uncontradicted by the
    respondents (para. 13).

[17]

From
    the evidence before him, the application judge had no doubt about HDIs
    intentions:

·

I find as a fact that in practice and into the future it was the
    intention of HDI to require all developers of undeveloped land to apply to it
    for a permit, pay the requisite fee and ultimately comply with all HDIs
    requirements, all without legal authority to do so.  If they did not their
    projects would be shut down (para.14).

[18]

The
    application judge then summarized the impact of the disruptive measures used by
    HDI and its supporters:

·

A number of these protests have led to violence, threats and
    intimidation against workers, protesters wearing masks, barricades being built
    by the respondents at worksites (para 18).

·

Public roads were obstructed, a number of the respondents and others
    trespassed on private properties and prevented entry to property over public
    roads (para. 18).

[19]

I
    accept these findings for the purpose of assessing the appellants attack on
    the two by-laws.

C.

the statutory framework and the by-laws

(1)

The Statutory Framework

[20]

Numerous
    provisions of the
Municipal

Act
,
2001
, S.O. 2001 c.
    25, give Ontario municipalities, such as Brantford, the power to pass specific
    kinds of by-laws.  Section 128 is particularly relevant to this appeal as it
    gives municipalities the power to prohibit or regulate public nuisances.
    Section 128(1) states:

Without limiting sections 9, 10 and 11, a local
    municipality may prohibit and regulate with respect to public nuisances,
    including matters that, in the opinion of council, are or could become or cause
    public nuisances.

Brantford passed the two by-laws in issue on this
    appeal under s. 128(1) of the Act.

[21]

Section
    128(2) of the Act statutorily recognizes the deference generally given to
    municipalities when they exercise their legislative function:

The opinion of council under this section, if arrived
    at in good faith, is not subject to review by any court.

[22]

Section
    238(2) of the Act requires a municipality to pass a procedure by-law governing
    the calling, place and proceedings of meetings.  Brantfords procedure by-law provides
    for special meetings of Council, permits a meeting or part of a meeting to be
    closed to the public, and sets out the procedures to be followed in enacting
    by-laws.  By-laws 63-2008 and 64-2008 were passed in accordance with Brantfords
    procedure by-law.

[23]

Section
    239(1) of the Act is another important provision on this appeal.  It
    incorporates the open meeting principle on which HDI relies:

Except as provided in this section, all meetings
    shall be open to the public.

[24]

As
    I will describe, the meeting at which by-laws 63-2008 and 64-2008 were
    discussed was closed to the public.  However, s. 239(2) lists a number of
    exceptions to the requirement that municipal council meetings be open to the
    public.  Brantford relies on the exception in subsection (f) for advice that is
    subject to solicitor-client privilege.  Section 239(2)(f) provides:

A meeting or part of a meeting may be closed to the
    public if the subject matter being considered is,

(f) advice that is subject to solicitor-client privilege,
    including communications necessary for that purpose;

[25]

Under
    s. 239(4) of the Act members of the public are entitled to notice of a closed
    meeting and of its general subject matter.  Section 239(4)(a) states:

Before holding a meeting or part of a meeting that is
    to be closed to the public, a municipality or local board or committee of
    either of them shall state by resolution,

(a) the fact of the holding of the closed meeting
    and the general nature of the matter to be considered at the closed meeting;

[26]

Any
    person may challenge a municipalitys decision to close one of its meetings to
    the public by asking for an investigation into whether the municipality
    complied with s. 239.  Sections 239.1 and 239.2(1) set out this investigation
    power:

239.1 A person may request that an investigation of
    whether a municipality or local board has complied with section 239 or a
    procedure by-law under subsection 238 (2) in respect of a meeting or part of a
    meeting that was closed to the public be undertaken,

(a) by an investigator referred to in subsection
    239.2 (1); or

(b) by the Ombudsman appointed under the
Ombudsman
    Act
, if the municipality has not appointed an investigator referred to in
    subsection 239.2 (1).

239.2(1) Without limiting sections 9, 10 and 11,
    those sections authorize the municipality to appoint an investigator who has
    the function to investigate in an independent manner, on a complaint made to
    him or her by any person, whether the municipality or a local board has
    complied with section 239 or a procedure by-law under subsection 238 (2) in
    respect of a meeting or part of a meeting that was closed to the public, and to
    report on the investigation.

Neither HDI nor any of the individual appellants asked
    for an investigation under s. 239.1.

[27]

Finally,
    two provisions of the Act address the Superior Courts power to quash municipal
    by-laws.  First, s. 272 implicitly recognizes the courts power to quash a
    by-law passed in bad faith:

A by-law passed in good faith under any Act shall not
    be quashed or open to review in whole or in part by any court because of the
    unreasonableness or supposed unreasonableness of the by-law.

[28]

Second,
    s. 273(1) gives the Superior Court discretion to quash a municipal by-law for
    illegality:

Upon the application of any person, the Superior Court
    of Justice may quash a by-law of a municipality in whole or in part for
    illegality.

Illegality in s. 273 can include a failure to comply
    with statutory procedural requirements, such as the open meeting requirement in
    s. 239, and bad faith: see
London (City) v. RSJ Holding Inc.
,[2007], 2
    S.C.R. 588, at para. 40;
Equity Waste Management of Canada v. Halton Hills
    (Town)
(1997), 35 O.R. (3d) 321 (C.A.) at 331.

(2)

Passage of the By-Laws

[29]

HDI
    challenges the process and procedures leading to the enactment of the two
    by-laws.  Here, I briefly describe how Brantford City Council proceeded.

[30]

The
    two by-laws were passed on Monday, May 12, 2008.  Over a month earlier  on
    March 25  Council passed a resolution signalling its concern about the actions
    of HDI and its supporters.  The resolution, which was posted on the Councils
    website, said in part:

The City agrees with the Provincial position that developers
    are not required to pay licensing fees or taxes to the Haudenosaunee
    Development Institute

The City agrees with the comments from the Prime Ministers
    Office in which it was stated that incidents aimed at intimidation or coercion
    of developers are of great concern and the laws of the Province of Ontario and
    of Canada must be respected so economic development may flourish in an
    atmosphere of law and order

[31]

In
    accordance with the Citys procedure by-law, a special meeting of Council was
    scheduled for Monday, May 12, 2008.  The meeting was set for 4:00 p.m. in the
    Charlie Ward committee room of City Hall, which was the usual time and place for
    special meetings of Council.

[32]

The
    agenda for the meeting was available at the counter of the Office of the Clerk
    of City Hall in the late afternoon of Thursday, May 8, and on the citys
    website early Friday morning May 9.

[33]

The
    agenda contained a section titled private and confidential agenda, which
    included the following item:

4.1 Land claims and related issues

Advice that is subject to solicitor-client privilege,
    including communications necessary for that purpose.

[34]

The
    agenda then noted the potential for three by-laws to be presented in open
    session for approval following the consideration of the private and
    confidential items on the agenda.  The agenda provided a description of the
    three by-laws.  The first two by-laws summarized were 63-2008 and 64-2008; the
    third by-law is not in issue on this appeal:

63-2008

Being a by-law to prohibit
          certain activities on named properties.
[2]

64-2008

Being a by-law to prohibit
          unauthorized fees, charges, levies, taxes requirements and conditions
          respecting development and construction.

[35]

Although
    delegations from the public are permitted to attend special meetings of the
    Brantford City Council, no member of the public was present when the special
    meeting of Council began at 4:00 p.m. on Monday, May 12, 2008.  Soon after the
    meeting started, Council passed a resolution  in accordance with s. 239(4)(a)
    of the Act  to move in camera.  It closed part of the meeting to the public
    in order to discuss the items on the private and confidential agenda.  Those
    present at the closed meeting included the members of Council, some of their
    staff, the City solicitor, and the Chief and Deputy Chief of Police.

[36]

At
    the end of the closed session, the doors of the committee room were opened and
    the council meeting resumed in public.  Still no member of the public was
    present, save for one member of the media who was invited into the meeting.

[37]

Council
    passed a motion to reconvene in open session.  By-laws 63-2008 and 64-2008 were
    introduced and passed quickly without discussion.  The vote in favour of each
    was unanimous.  Copies of the by-laws were available at the meeting and
    afterward on request.

[38]

The
    application judge found, that these by-laws were passed in full compliance
    with the Citys usual practice, the Citys procedural by-law, and all the
    applicable provisions of the
Municipal

Act
 (at para. 71).

(3)

The Two By-Laws

(a)

By-Law 63-2008

[39]

By-law
    63-2008 is titled A By-Law to Prohibit Interference with Development,
    Construction and Access to Property.  It has a lengthy preamble containing 11
    recitals or whereas clauses.  Six of these clauses refer expressly to HDI and
    its supporters.  For example, the second and third recitals state:

AND WHEREAS individuals associated with, or members,
    representatives, or supporters of, the Haudenosaunee Development Institute have
    caused approved construction and development on affected properties to be
    disrupted, hindered, delayed or otherwise obstructed by reason of such demands,
    requirements or stipulations;

AND WHEREAS individuals associated with, or members,
    representatives, or supporters of, the Haudenosaunee Development Institute have
    also threatened to disrupt, hinder, delay or otherwise obstruct further
    proposed or approved construction and development on affected properties unless
    their demands, requirements or stipulations are satisfied;

The preamble shows that the actions of HDI and its
    supporters prompted the passage of by-law 63-2008.

[40]

However,
    the by-laws operative provisions apply to any person who engages in the
    activities prohibited by the by-law.  There are two operative provisions:
    sections 2 and 3.  Section 2 applies to designated streets and section 3 to
    affected properties, that is, properties in which development or construction
    has been authorized.

[41]

Section
    2 generally prohibits putting up structures or signs, throwing things, or
    blocking traffic on designated streets.  Section 3 similarly prohibits damaging
    or throwing things on any affected property, and interfering with development
    and construction on or with traffic going in and out of any affected property.
    Section 4 of the by-law tracks the language in s. 128(1) of the
Municipal
    Act
,
2001
and states that any contravention of sections 2 or 3
    of this by-law is a matter that, in the opinion of Council, is or could become or
    cause a public nuisance and is hereby prohibited.  The full text of by-law
    63-2008 is at Appendix A of these reasons.

(b)

By-Law 64-2008

[42]

By-law
    64-2008 is titled A By-Law to Prohibit Unauthorized Fees, Charges, Levies,
    Taxes, Requirements and Conditions Respecting Development and Construction.
    It too has a lengthy preamble consisting of 12 recitals, of which seven refer
    to the actions of HDI and its supporters.  The first four recitals of by-law
    64-2008 are identical to those in by-law 63-2008. The seventh recital describes
    Brantfords underlying concern with the actions of HDI and its supporters.  It
    reads:

AND WHEREAS the demands of individuals associated with, or
    members, representatives, or supporters of, the Haudenosaunee Development
    Institute are tantamount to the creation of a parallel, unauthorized and
    uncontrolled system respecting the regulation of development and construction,
    including the charging of fees, charges, levies, taxes, or other payments
    related to development and construction, the imposition of conditions of
    development or construction, and the submission of development applications and
    related reports, plans or documents;

Again, there can be no doubt that the actions of HDI
    and its supporters precipitated the passage of by-law 64-2008.

[43]

However,
    the operative provisions of by-law 64-2008 apply, with one exception, not just
    to HDI and its supporters, but to any individual (or corporation or
    unincorporated association) that engages in the activities prohibited by the
    by-law.  The by-law generally prohibits unauthorized demands for an application
    or fees for development.  The conduct prohibited is broad  for example,
    section 1 states that no individual, corporation, or unincorporated
    association shall request, demand, coerce, stipulate, require, invite, or
    collect  a tax or any charge  as a condition of  an application for
    development . The breadth of the prohibited conduct is the subject of the
    appellants
Charter
challenge to the by-law.

[44]

Section
    5 of the by-law refers specifically to HDI and its supporters.  It states that
    their requests, demands, coercion, invitations, stipulations or requirements
    for fees as a condition of development or for an application for development
    are not authorized, are matters that in the opinion of Council are or could
    constitute a public nuisance, and are therefore prohibited.  The full text of
    by-law 64-2008 is at Appendix B to these reasons.

D.

the issues

(1)

Did the Application Judge Err by Holding that the Passage of the By-Laws
    Complied with the Open Meeting Requirement in Section 239 of the
Municipal
    Act
,
2001
?

[45]

Section
    239(1) of the
Municipal

Act
,
2001
requires that all
    municipal council meetings be open to the public, unless an enumerated
    exception applies.  The open meeting requirement has these two important
    rationales: increase public confidence in local government; and prevent secrecy
    in municipal decision making.  In
London (City) v. RSJ Holdings Inc.
,
    at para. 38, Charron J. emphasized that the legitimacy of municipal decision
    making depends on openness and transparency:

The democratic legitimacy of municipal
    decisions does not spring solely from periodic elections, but also from a
    decision-making process that is transparent, accessible to the public, and
    mandated by law.  When a municipal government improperly acts with
    secrecy, this undermines the democratic legitimacy of its decision, and such
    decisions, even when
intra vires
, are less worthy
    of deference.

[46]

Nonetheless,
    a municipal council is justified in closing all or parts of its meetings if it
    does so under one of the exceptions in s. 239(2) of the Act.  In this case, in
    closing most of its May 12, 2008 meeting to the public, the Brantford City
    Council relied on the exception in s. 239(2)(f) for advice that is subject to
    solicitor-client privilege including communications necessary for that
    purpose.

[47]

The
    appellants submit that Councils decision to discuss the two by-laws behind
    closed doors violated the open meeting requirement.  They contend that the length
    of the closed door meeting followed by the brief open meeting renders the claim
    of solicitor-client privilege specious.  Indeed, they go further and contend
    that Council waived any privilege it might have had by including in the meeting
    two persons, the Chief and Deputy Chief of Police, neither of whom was party to
    the solicitor-client relationship between Council and its staff and the City
    solicitor.  In support of their submission, the appellants rely on
RSJ
    Holdings
where the Supreme Court of Canada upheld this courts decision to
    quash a municipal interim control by-law enacted under the
Planning Act
because it was discussed and then passed at two closed meetings of council.

[48]

The
    application judge did not accept the appellants submission.  He concluded, but
    without elaboration, that the by-laws were passed in full compliance with
    all the applicable provisions of the
Municipal Act
 (at para. 71).
    For the reasons that follow, I agree with his conclusion.

[49]

That
    the discussion of the two by-laws took place behind closed doors does not by
    itself vitiate the validity of the claim of solicitor-client privilege.
    Council was faced with a volatile situation in a politically charged
    environment, which had reached near crisis proportions.  Litigation was likely,
    if not inevitable.  It had a duty to act to protect and balance the interests
    of all of the Citys citizens.  Yet in doing so, it had to ensure that it did
    not transgress its statutory authority.  Thus, it needed legal advice to ensure
    that whatever steps it did take were lawful, and it needed to discuss that
    advice with its solicitor.  On its face, Councils claim of solicitor-client
    privilege for its discussions was anything but specious.

[50]

Nor
    did the presence at the meeting of the Chief and Deputy Chief of Police amount
    to a waiver of the privilege.  I accept the appellants point that the Chief
    and Deputy Chief were not clients of the City solicitor.  The Brantford Police
    Service has its own legal counsel.  But in this case, Council and the police
    had a common interest: to understand the legal basis for these two by-laws.
    Indeed, I would have thought it vital for the heads of the police force to
    appreciate this legal basis as their officers would be responsible to enforcing
    the by-laws.

[51]

This
    court has recognized that where two parties with a common interest consult a
    solicitor, their communications are privileged. In
R. v. Dunbar
(1982), 138 D.L.R. (3d) 221 (Ont. C.A.), Justice Martin wrote:

The authorities are clear that where two or more persons, each
    having an interest in some matter, jointly consult a solicitor, their
    confidential communications with the solicitor, although known to each other,
    ore privileged against the outside world (para. 57).

See also:
Pritchard v. Ontario (Human Rights Commission)
,
    [2004] 1 S.C.R. 809 at paras. 22-24. Thus, although Council is the City
    Solicitors client, and the Brantford Police Service has its own counsel, for
    the meeting at which the by-laws were discussed, both parties together
    consulted the City Solicitor with a common goal: to ensure that the two by-laws
    were lawful, enforceable, and would put an end to the disturbances in
    Brantford. Accordingly, the Chiefs and Deputy Chiefs attendance at the
    meeting did not vitiate Councils claim of solicitor-client privilege.

[52]

Moreover,
    the appellants submission is undermined by their failure to resort to s. 239.1
    of the
Municipal Act
,
2001
.  As I discussed earlier, that
    provision would have permitted the appellants to ask for an independent
    investigation to determine whether Council had complied with the open meeting
    requirement.  One reason for s. 239.1, at least in the context of a councils
    claim of solicitor-client privilege, is to avoid having to breach the privilege
    in order to justify its assertion.  The appellants failure to ask for an
    investigation is a further reason why I reject their submission.

[53]

Finally,
    the decision in
RJS Holdings
does not assist the appellants.  In that
    case, the municipality (the City of London) conceded that it had breached s.
    239(4) of the
Municipal Act
,
2001
by failing to pass a
    resolution giving notice of the closed meeting and its general subject matter,
    and further conceded in the Supreme Court that it could not justify its closed
    meeting on the ground of solicitor-client privilege.  Its sole remaining ground
    for its closed meeting  s. 239(2)(g) of the Act, which excepts discussion of a
    matter in which council may hold a closed meeting under another Act  found no
    support in the
Planning Act
.  Accordingly, the City of London had no
    justifiable basis for discussing its interim control by-law behind closed
    doors.

[54]

The
    case before us differs from
RSJ Holdings
in every important respect.
    Brantford City Council passed a resolution under s. 239(4) of the Act, and it
    had a justifiable ground for holding a closed meeting  obtaining advice
    subject to solicitor-client privilege  a ground Council did not disavow and
    the appellants have not shown to be specious.

[55]

I
    would not give effect to this ground of appeal.

(2)

Did the Application Judge Err by Finding that the By-Laws Were Not
    Passed in Bad Faith?

[56]

The
    Superior Court has discretion to quash a municipal by-law passed in bad faith.
    In
H.G. Winton Ltd. v. North York (Borough)
(1978), 20 O.R. (2d) 737
    (Div. Ct.) at pp. 744-45, Robins J. defined bad faith expansively:

To say that council acted in what is characterized in law as
    bad faith is not to imply or suggest any wrongdoing or personal advantage on
    the part of any of its members:
Re Hamilton, Powder Co. and Township of
    Gloucester
(1909), 13 O.W.R. 661. But it is to say, in the factual
    situation of this case, that Council acted unreasonably and arbitrarily and
    without the degree of fairness, openness, and impartiality required of a
    municipal government...

Our court has accepted this expansive definition:  see
Equity Waste Management
, at 340-41.  However, municipal by-laws are
    presumed to have been enacted in good faith.  The party seeking to quash the
    by-law has the onus of proving bad faith: see
Ottawa (City) v. Boyd
    Builders Ltd.
, [1965] S.C.R. 408 at 413.

[57]

The
    application judge referred to
Equity Waste Management
and concluded
    that the appellants had not rebutted the presumption that both by-law 63-2008
    and by-law 64-2008 were passed in good faith.

[58]

The
    appellants submit that the application judge erred in his conclusion.  They
    point to what they say are four badges of bad faith, which cumulatively show
    that Council acted unreasonably without the degree of fairness, openness, and
    impartiality required of it:

·

The resolution to close the meeting under s. 239(4)(a) of the Act
    was deficient because it did not give fair notice of the matters to be
    discussed in private.

·

The public was not given any meaningful notice before the meeting
    about the nature of the by-laws.

·

Almost the entire meeting was held behind closed doors.

·

Although seemingly of general application, the two by-laws target
    HDI and its supporters, yet none of the appellants was given notice of the
    by-laws.

[59]

I
    do not accept the appellants submission.  None of the four badges the
    appellants rely on evidences bad faith.  I will deal with each in turn.

(i)

The Resolution Passed Under s. 239(4)(a)

[60]

The
    resolution passed under s. 239(4)(a) of the
Municipal Act
,
2001
refers to land claims and related issues.  Perhaps in the abstract this brief
    description would not tell the ordinary citizen what was to be discussed in the
    closed meeting.  But context matters.  And in the context of what was taking
    place almost daily in Brantford when the special Council meeting was called, no
    reasonable citizen, and especially no member of HDI or its supporters, could
    have been in any doubt about what was to be discussed.

(ii)

Notice to the Public

[61]

Council
    did give advance notice to the public about the nature of the two by-laws to be
    considered, even though Brantfords procedure by-law did not require notice to
    persons who may be affected by a by-law.  The notice that was given said
    simply: by-law 63-2008  a by-law that prohibits certain activities on named
    properties; and by-law 64-2008  a by-law that prohibits unauthorized fees,
    charges, levies, taxes requirements and conditions respecting development and
    construction.

[62]

The
    appellants say that these descriptions were too vague to alert them that the
    by-laws may affect their interests.  This assertion is not plausible.  Even
    accepting that advance public notice of the by-laws was required  a point I
    need not decide  the description of the by-laws given met any reasonable
    notice requirement.  Again, in the light of what was taking place in Brantford
    at the time, the
Haudenosaunee and HDI would or should have been
    well aware from this notice that the two by-laws may affect their interests.

(iii)

Closed Door Meeting

[63]

That
    the meeting was held almost wholly behind closed doors is not a sign the
    by-laws were passed in bad faith.  As I discussed under the first issue, a
    closed meeting was necessary to obtain the City solicitors advice on the
    legality of the by-laws.  The application judge dealt with this aspect of the
    appellants claim of bad faith at para. 78 of his reasons:

The second ground of bad faith put forth by the
    respondents was the fact that the public meeting was conducted in 3 minutes
    whereby the by-laws were approved, and part of the meeting was conducted in
    camera. The evidence before me is that the reason part of the meeting was in
    camera was to receive some communications considered privileged by the City
    Solicitor. There is no evidence to dispute this explanation. There is also no
    evidence before me to suggest anything sinister about passing these by-laws in
    3 minutes without debate. In fact the evidence suggests this is not an
    unusual occurrence. One wonders why there would be debate or discussion when no
    one from the public had elected to attend, the councilors had obviously
    reviewed the material in advance and all were in favour  what discussion or
    debate under those circumstances needed to take place? The respondents have not
    rebutted the presumption of good faith on this ground.

I agree with this paragraph of the
    application judges reasons.

(iv)

Targeting

[64]

Finally, I do not accept that either by-law targeted the Haudenosaunee
    people or HDI in the sense of singling them out for special or different
    treatment.  The preamble to each by-law candidly acknowledged  and Brantford
    City Council ought not to be penalized for its candor  that the actions of HDI
    and its supporters were the catalyst for the by-laws.  However, municipal
    decisions are often made because municipal councilors, in their desire to act
    in the public interest, respond to the concerns of their constituents.
    Undoubtedly that is all that occurred here: see
Equity Waste
    Management
at 344-5.

[65]

The passage of the two by-laws was precipitated by the disruptive
    actions of HDI and its supporters, but the by-laws themselves apply generally
    to anyone who engages in the activities prohibited by them.  In their operative
    provisions the by-laws do not target the Haudenosaunee or HDI or any of their
    supporters for special treatment.  One section of by-law 64-2008  section 5
    does refer specifically to HDI and its supporters.  That section is
    superfluous.  It adds nothing to the list of activities already banned by the
    other four sections of the by-law to which HDI and its supporters along with
    the rest of the citizens of Brantford are subject.  Thus, the appellants were
    not entitled to any special notice of these by-laws beyond the public notice
    that was given several days before the by-laws were discussed and passed.

[66]

Accordingly, the appellants have failed to demonstrate that the
    application judge erred in holding that bad faith had not been proven.  I would
    not give effect to this ground of appeal.

(3)

Did the Application Judge Err by Holding that the By-Laws Did Not Breach
    Either Section 2(b) or Section 15 of the Canadian
Charter of Rights and
    Freedoms
?

[67]

In
    addition to attacking the statutory legality of the two by-laws, the appellants
    challenged their constitutionality.  They submit that some of the conduct
    prohibited by the two by-laws infringes the guarantee of freedom of expression
    in s. 2(b) of the
Charter
and is not justified under s. 1.
    Alternatively, the appellants submit that the by-laws unjustifiably
    discriminate against the
Haudenosaunee contrary to the equality
    guarantee in s. 15 of the
Charter
.

[68]

The
    application judge found the appellants s. 2(b) argument to be without merit
    (at para. 81).  He also found no breach of s. 15 because the by-laws did not
    specifically target the
Haudenosaunee.  While I agree with the
    application judges finding on s. 15, I do not wholly accept his finding on s.
    2(b).  Although most of the prohibited conduct can be justified under s. 1 of
    the
Charter
, the ban on a request and an
    invite in by-law 64-2008 is overly broad, as counsel for Brantford
    acknowledged during oral argument, and these words should be struck from the
    operative provisions of the by-law.

(a)

Section 2(b)

[69]

In
    dismissing the appellants s. 2(b) claim, the application judge relied on the
    Supreme Court of Canadas decision in
Retail, Wholesale and Department
    Store Union Local 558 v. Pepsi Cola Canada Beverages (West) Ltd.
, [2002] 1
    S.C.R. 156.  However, that case is not determinative of the constitutionality
    of Brantfords by-laws because, as the appellants point out, it was a private
    labour dispute about the legality of secondary picketing, to which the
Charter
did not directly apply.  Thus, in
Pepsi

Cola
, the Supreme
    Court did not undertake the usual two-stage analysis of a
Charter
claim: have the claimants shown a state-imposed limitation on a
Charter
guarantee; and if so, has the state justified the limitation under s. 1.

[70]

Nonetheless,
    as I will discuss,
Pepsi

Cola
is helpful in dealing with the
    appellants s. 2(b) arguments because picketing is a form of expression and
Charter
values inform the common law.  Thus, in
Pepsi

Cola
, the
    Supreme Court did address the kind of expressive conduct that did not deserve constitutional
    protection.

[71]

By-laws
    63-2008 and 64-2008, in different ways, ban expressive conduct or
    communications.  Virtually all expressive activity short of physical violence
    or threats of violence is protected under s. 2(b): see
R. v. Khawaja
[2012] 3 S.C.R. 555 at para. 70.  Without parsing each by-law I will assume
    that both by-laws limit the appellants freedom of expression guaranteed by s.
    2(b) of the
Charter
.

[72]

Has
    Brantford justified the by-laws limits on freedom of expression under s. 1 of
    the
Charter
?  Section 1 of the Charter provides:

The
Canadian

Charter

of

Rights

and

Freedoms
guarantees the rights and freedoms set out in it
    subject only to such reasonable limits prescribed by laws as can be
    demonstrably justified in a free and democratic society.

[73]

Brantford
    has the onus of justifying the limits it imposed.  The test under s. 1 remains
    the test in
R. v. Oakes
, [1986] 1 S.C.R. 103, though it has been
    elaborated on and refined in many later cases.  The test has two parts:
    Brantford must show that it passed the two by-laws to meet a pressing and
    substantial objective; and it must show that the by-laws limits on freedom of
    expression are proportional in the sense of being rationally connected to the
    objective, impairing the right to freedom of expression in a reasonably minimal
    way, and having curtailed expression in a way that it is proportionate to the
    benefit sought.  See
Montréal (City) v. 2952-1366 Québec Inc.
, [2005]
    3 S.C.R. 141, at para. 88.

(i)

Pressing and Substantial Objective

[74]

That the by-laws were passed to meet a pressing and substantial
    objective cannot seriously be debated.  Brantford City Council was faced with
    an urgent and serious problem within the municipality.  HDI and its supporters
    had brought virtually all development in the City to a halt, had obstructed
    access to private property, and had impeded traffic on public streets.  Many of
    their actions were tortious.  And, on the finding of the application judge, HDI
    and its supporters intended to continue with these disruptive actions.  Council
    was entitled to act to curb what was taking place.  The objective of the limitations
    on freedom of expression is without doubt pressing and substantial.

(ii)

Proportionality

[75]

The
    limitations on freedom of expression are obviously rationally connected to the
    Citys objective in passing the two by-laws.

[76]

As
    is invariably the case under the proportionality branch of the
Oakes
test,
    the key question is whether the limits impair freedom of expression in a
    reasonably minimal way.  The word reasonably is important.  A court should
    not strike down a by-law because it can dream up what it thinks is a better or
    less intrusive way to address the municipalitys problem.  As McLachlin C.J.C.
    and Deschamps J. said, writing for the majority in the
City

of

Montréal
case
[3]
at para. 94:  in dealing with social issues like this one, where interests
    and rights conflict, elected officials must be accorded a measure of latitude.

[77]

With
    the exceptions of the prohibition on erecting signs on or adjacent to
    designated streets in by-law 63-2008, and the prohibition on invite and
    request in by-law 64-2008, the activities prohibited by both by-laws limit
    freedom of expression in a reasonably minimal way.  Here, the Supreme Courts
    decisions in
Pepsi Cola
and
United Food and Commercial Workers,
    Local 1518 (U.F.C.W.) v. K-Mart Canada Ltd.
, [1999] 2 S.C.R. 1083 are
    instructive.  Both cases make it clear that a ban on criminal, tortious, or
    coercive conduct or conduct that prevents free access to private property or
    conduct that blocks traffic on public streets will be justified under section 1
    of the
Charter
: see
Pepsi

Cola
at para. 103 and
K-Mart
at paras. 37, 43 and 72.

[78]

By-law 63-2008
.  By-law 63-2008 is reasonably tailored
    to ban conduct that amounts to the tort of nuisance  for example littering,
    loitering, damaging private property or putting up tents and the like on public
    streets; or conduct that amounts to the tort of trespass; or conduct that
    prevents unimpeded access to and from private properties being lawfully
    developed or that impedes traffic on public streets.

[79]

However,
    one activity banned by by-law 63-2008 requires separate consideration: the ban
    in s. 2(a) on erecting signs on or adjacent to a designated street.  Signs have
    long been recognized as an inexpensive yet effective means of expression,
    especially for individuals or groups who lack the financial resources to use
    other more expensive means of communication: see
R. v. Guignard
,
    [2002] 1 S.C.R. 472, at para. 25.  For that reason, the posting of signs, in
    many different contexts, merits constitutional protection.

[80]

By-law
    63-2008 contains two provisions banning signs. Section 2(a) prohibits
    unauthorized signs on designated streets or on city property adjacent to
    designated streets. Section 3(c) prohibits signs on any affected property
    that is, a property approved for development or construction.

[81]

The
    prohibition in section 3(c) is appropriate. Council was justified in banning
    signs on private property approved for development. However, the blanket
    prohibition on signs on or adjacent to designated streets is overly broad and
    fails the proportionality branch of the
Oakes
test.

[82]

Erecting
    signs on public streets is not by itself tortious conduct. And, although by-law
    63-2008 does not prevent the appellants and their supporters from erecting
    signs on non-designated streets, from their perspective, by putting up signs
    near development sites can they convey their message in a peaceful yet
    effective and meaningful way. Council would be justified in regulating the
    erection of signs on public streets near development sites.  For example, it
    could limit the size or number of signs.  But the blanket prohibition in
    section 2(a) of by-law 63-2008 does not impair freedom of expression in a
    reasonably minimal way.

[83]

By-law 64-2008
.  Under s. 1 of by-law 64-2008, no
    person, unless authorized, shall request, demand, coerce, stipulate, require,
    invite or collect a fee for development.  The other operative provisions of
    the by-law use similar language.

[84]

The
    words demand, coerce, stipulate, require and collect, all broadly
    speaking, amount to conduct that is coercive.  Brantford was fully justified in
    banning this coercive conduct.  However, neither a request nor an invite is
    coercive.  Both may be viewed as non-coercive activity meant to persuade or at
    least to prompt discussion with developers.  Banning this non-coercive activity
    limits freedom of expression more than is reasonably necessary.

[85]

If
    the words invite and request are taken out of by-law 64-2008, both by-laws
    satisfy the third branch of proportionality: the prejudicial effects on free
    expression flowing from the two by-laws are proportionate to their beneficial
    effects.  Accordingly, save for the prohibition on a request and an invite,
    Brantford has met its onus of justifying the limits on freedom of expression
    imposed in the two by-laws.

(iii)

Remedy

[86]

Section 273(1) of the
Municipal

Act
,
2001
gives the court discretion to quash a by-law for illegality  in whole or in
    part.  Thus, the court has discretion to sever offending portions of a by-law.
    I would strike the word sign in section 2(a) of by-law 63-2008. And, I would
    strike the following words in by-law 64-2008:

Section 1  request and invite

Section 2  request

Section 4  request and invitation

Section 5  requests and invitations

[87]

The
    remaining provisions of the two by-laws are constitutional.  And, with my
    proposed remedy, neither by-law prevents lawful and peaceful protests.

(b)

Section 15

[88]

The
    appellants submit that both the purpose and the effect of the two by-laws
    discriminate against the
Haudenosaunee on the ground of their
    ancestry.  They argue that the by-laws curtail the way the Haudenosaunee have
    chosen to interact with developers.  And they argue that the by-laws have a
    differential impact on the Haudenosaunee because the Haudenosaunee have a
    constitutional interest in carrying out the activities prohibited by the
    by-laws.

[89]

I do not accept these arguments.  Once the words invite and request
    are severed from by-law 64-2008, neither by-law discriminates against the
    Haudenosaunee either in purpose or effect.  Neither by-law prevents the
    Haudenosaunee from interacting lawfully with developers or from advancing their
    constitutional interests in a lawful way.  The by-laws prohibit tortious and
    coercive conduct.  The Haudenosaunee can hardly claim that they have a
    constitutional right to engage in this kind of conduct, or that a ban of this kind
    of conduct somehow discriminates against them.  I would not give effect to the
    appellants s. 15 claim.

(4)

Did the Application Judge Err by Holding that the By-Law 64-2008 Was Not
    Rendered Invalid or Inapplicable to the Haudenosaunee By the Federal
    Legislative Power in Relation to Indians?

[90]

Section
    91(24) of the
Constitution Act 1867
grants the federal government
    exclusive legislative power in relation to Indians, and Lands reserved for the
    Indians.  Before the application judge, the appellants argued that the two
    by-laws were
ultra

vires
because, in pith and substance, they
    fell within the federal power under s. 91(24).  The application judge rejected
    this argument at para. 84 of his reasons:

I have already found that these by-laws did not
    target the Haudenosaunee and therefore do not specifically deal with Indians.
    The language of the by-laws could not be clearer in that they apply to anyone
    or corporation or association that does certain activities. It is the
    activities that are targeted not a particular group. Likewise there is no
    evidence these by-laws are dealing with lands reserved to Indians. These have
    been privately titled lands for almost 150 years and within the city limits of
    Brantford. The respondents assertion that the lands are theirs, with nothing
    more, is far from sufficient for a finding that the by-laws are dealing with
    lands reserved for Indians. The pith and substance of these by-laws are
    dealing with property and civil rights within the city limits. The by-laws
    cannot be interpreted, in my view, in any way touching on the core of
    Indianness as described by the Supreme Court of Canada in
Paul v.
    British

Columbia (Forest Appeals Commission),
[2003] 2 S.C.R. 55 at paras. 11-12.

The appellants submit that he erred in rejecting
    their argument.  They did not advance this submission orally, but rested on the
    points made in their factum.

[91]

In their written argument in this court, the appellants limited their
    submission to by-law 64-2008, the by-law that bans unauthorized demands for
    fees or applications for development.  Their submission has two branches:
    although by-law 64-2008 may be facially neutral, its real purpose and effect is
    to regulate the Haudenosaunees assertion of its treaty rights, and thus it
    intrudes on s. 91(24) and is accordingly
ultra

vires
; alternatively, if by-law 64-2008 is a valid exercise of provincial
    power under the
Municipal

Act
, it is
    nonetheless inapplicable to the Haudenosaunee because its provisions affect the
    core of Indianness.

[92]

Neither branch of the appellants submission has any merit.  I will deal
    with each briefly.  On the first branch of their submission, by-law 64-2008 was
    passed under the provisions of the
Municipal

Act
,
2001
.  It was thus enacted under
    provincial legislative power in relation to property and civil rights.  The
    by-law would be invalid if it singled out the Haudenosaunee people for special
    treatment or impaired their status as Indians either in purpose or effect: see,
Kitkatla Band v. British Columbia (Minister of Small Business,
    Tourism and Culture)
, [2002] 2 S.C.R. 146, at para. 67.  But
    by-law 64-2008 does neither.  Instead, it prohibits everyone, not just the
    Haudenosaunee or HDI, from engaging in the activities listed in it.
    Accordingly, it was validly passed under provincial legislation and does not
    fall under s. 91(24) of the
Constitution

Act
,
1867
.  See
Kitkatla
, at para. 69.

[93]

On the second branch of the appellants submission, the governing
    principle is that a law of general application, such as by-law 64-2008, applies
    to Aboriginal people, as long as it does not touch on the core of
    Indianness.  See
Paul v. British Columbia (Forest Appeals
    Commission)
, [2003] 2 S.C.R. 585.  The core of Indianness
    or the basic, minimum and unassailable content of the federal power over
    Indians is narrow.  It includes only matters that go to the status and rights
    of Indians such as the Aboriginal rights protected by s. 35(1) of the
Constitution
    Act
,
1982
.  The narrowness of
    the core recognizes that Indians are members of a broader population, and
    thus, in their day-to-day activities, are subject to provincial and municipal
    laws of general application: see
NIL/TU, O Child and Family Services
    Society v. B.C. Government and Service Employees Union
,
    [2010] 2 S.C.R. 696, especially at paras. 70-73;
Canada Western Bank
    v. Alberta
, [2007] 2 S.C.R. 3, at paras. 60-61.

[94]

Applying this principle, by-law 64-2008 does not strike at the core of
    Indianness, which would be protected from provincial or municipal intrusion.
    Brantford has every right to pass legislation to control lawlessness and nuisances
    on its streets and on private property within its city limits.  The
    Haudenosaunee, like all other citizens of Brantford, are subject to this
    by-law.  The appellants position assumes that the Haudenosaunee have a treaty
    right to ownership of most of the privately held land within Brantford  a
    right that has never been adjudicated on or indeed that the Haudenosaunee have
    ever even advanced a claim for in any legal proceeding.  The appellants
    position is thus untenable.  I would not give effect to this ground of appeal.

E.

the attorney general of canadas intervention

[95]

In his reasons for judgment, the application judge referred to the 1784
    document on which the appellants rely to assert their claims over the Haldimand
    Tract as the Haldimand Treaty (at para. 11).  In one of the paragraphs of
    their notice of constitutional question, the appellants allege that by-law
    64-2008 is
ultra

vires
because it
    infringes the
treaty rights
of the Haudenosaunee in a manner that impairs the core of the federal power under
    s. 91(24) of the
Constitution

Act
,
1867
(emphasis added).

[96]

The Attorney General of Canada was served with the notice of
    constitutional question, and intervened in this appeal as of right, as it was
    entitled to do under s. 109 of the
Courts of Justice Act
. The Attorney General claims that the 1784 document is not a treaty,
    and is properly characterized as the Haldimand Proclamation of 1784.  It is
    concerned that characterizing the document as the Haldimand Treaty gives rise
    to constitutional implications under s. 35 of the
Constitution Act
,
1982
.  It contends that the application
    judges observation was
obiter
, that none of the
    parties asked him to decide whether the 1784 document was a treaty, and that he
    had no evidentiary basis to do so.

[97]

The Attorney General also submits that we can decide this appeal
    without determining whether the Haldimand Proclamation is a treaty.  Finally,
    the Attorney General notes that the question of the proper characterization of
    the 1784 document is being litigated in another proceeding presently before the
    Superior Court:
Six Nations of the Grand River Indian Band v. The
    Attorney General of Canada
.

[98]

We agreed with the position of the Attorney General and therefore did
    not ask his counsel to make any oral submissions.
[4]
In our view, the
    application judge was not making a binding determination that the 1784 document
    is a treaty, but was simply identifying one source of the Haudenosaunees
    claims.  Moreover, it has not been necessary to characterize the document in
    order to decide this appeal.  Accordingly, the question whether the Haldimand
    Proclamation of 1784 is a treaty has not been decided in these proceedings.

F.

conclusion

(1)

The passage of by-laws 63-2008 and 64-2008 complied
    with the open meeting requirement in s. 239 of the
Municipal

Act
,
2001
.

(2)

The appellants have not shown that the by-laws were
    passed in bad faith.

(3)

I would strike the word sign in section 2(a) of
    by-law 63-2008, and the words invite, invitation, invitations, request
    and requests from the operative provisions of by-law 64-2008 on the ground
    that they limit the guarantee of freedom of expression in s. 2(b) of the
Canadian

Charter

of

Rights

and

Freedoms
and are not justified under s. 1.  In all other respects, the by-laws
    are constitutional.

(4)

The federal legislative power in relation to
    Indians and lands reserved for the Indians does not render either by-law
ultra

vires
or inapplicable to the Haudenosaunee.

(5)

Neither the application judge nor this court has
    determined whether the Haldimand Proclamation of 1784 is a treaty.

[99]

Accordingly, save for point 3 above, I would dismiss the appeal.
    Counsel may make brief written submissions on the costs of this appeal within
    three weeks of the release of these reasons.

Released: DD                                  John
    Laskin J.A.

SEP 13 2013                                    I agree
    Doherty J.A.

I
    agree Janet Simmons J.A.

Appendix A

Appendix B

[1]
In Ontario, the Haudenosaunee are also known as the Six Nations.  The Six
    Nations are the Mohawk, Oneida, Cayuga, Onondaga, Seneca and Tuscarora Nations.

[2]
The description of By-law 63-2008 as enacted was a by-law to prohibit
    interference with development, construction and access to property.  The
    wording was changed on the advice of the City solicitor.  Nothing turns on this
    change in wording.

[3]
The case dealt with the Citys regulation of noise pollution.

[4]
The appellants did not pursue this issue in oral argument.


COURT OF APPEAL FOR ONTARIO

CITATION: Durham (Regional Municipality) v. Oshawa
    (City), 2013 ONCA 573

DATE: 20130925

DOCKET: C56297

Weiler, Sharpe and Rouleau JJ.A.

BETWEEN

Regional Municipality of Durham

Plaintiff (Respondent)

and

The Corporation of the City of Oshawa

Defendant (Appellant)

Barnet H. Kussner and Tiffany Tsun, for the appellant

John Harild and Courtney Raphael, for the respondent

Heard: April 18, 2013

On appeal from the judgment of Justice Janet Wilson of
    the Superior Court of Justice, dated October 31, 2012, with reasons reported at
    2012 ONSC 5803, 113 O.R. (3d) 54.

Rouleau
    J.A.:

OVERVIEW

[1]

The issue raised in this appeal is the application of the two-year
    limitation period in the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B, to a dispute involving
    the
transfer of responsibility for public transit from a local
    municipality to a regional municipality.

[2]

In March 2011, the Regional Municipality of Durham (Durham) issued a statement
    of claim against the City of Oshawa (Oshawa) seeking relief under the terms of a
    2004 by-law that transferred responsibility for Oshawas public transit system
    to Durham. Oshawa responded with a motion for summary judgment seeking to
    dismiss Durhams claim on the basis that it was commenced after the limitation
    period had expired. The motion was dismissed and Oshawa appeals from that
    dismissal.

FACTS

[3]

Oshawa is one of eight lower-tier municipalities located in Durham.

[4]

In November 2004, Oshawa received a report from Durhams Commissioners
    of Planning, Finance and Works. The report recommended transferring the
    responsibility for operating public transportation systems from the eight lower-tier
    municipalities to the upper-tier municipality of Durham. Such a transfer is
    contemplated by s. 189 of the
Municipal Act
,
2001
, S.O. 2001, c.
    25, which provides for the transfer of power and responsibility from a
    lower-tier municipality to an upper-tier municipality pursuant to a by-law.

[5]

The proposal in the report included as one of the terms of transfer
    that:

The amount of any unfunded liabilities existing at the Effective
    Date shall be determined through negotiations between the Region and the lower
    tier municipalities to ensure that the Region receives the necessary funding
    from the transferring corporation or agency.

[6]

In response to the proposed terms of transfer, Oshawa council called a
    special meeting on December 9, 2004. At the meeting it passed a resolution
    supporting the transfer of its municipal transit services to Durham in
    principle. However, this support was subject to the qualification that any
    unfunded liabilities be assumed by the Region of Durham as a condition of the
    transfer to Regional Operations. This qualification reflected Oshawas concern
    about being liable for significant unfunded liabilities that were owed primarily
    to unionized transit employees whose employment would be transferred to Durham.

[7]

On December 15, 2004, Durham Regional Council (Durham council) considered
    the proposed transfer. Representatives of the lower-tier municipalities sit on
    the Durham council. Oshawas representatives on Durham council were thus aware
    of and involved in the deliberations of Durham council throughout the transfer
    process.

[8]

Oshawas concern with respect to unfunded liabilities was discussed at
    the Durham council meeting. An Oshawa councillor proposed amending the draft
    language concerning unfunded liabilities. The proposed amendment read:

The amount and future payments of any unfunded liabilities
    existing at the Effective Date shall be determined through negotiations between
    the Region and the lower-tier municipalities.

[9]

The Oshawa councillor explained his reason for proposing the amendment as
    follows:

[I]f youre truly entering a partnership through negotiation,
    you dont reach your conclusion in your operative clause. You actually allow
    everything to be put on the table, and the amounts of unfunded liabilities,
    review a number of scenarios as to how theyre going to be paid, and negotiate,
    and then bring that back for a recommendation. If you didnt do this change,
    then the only thing thats negotiated, and I stress this, the only [thing]
    thats negotiated between the local tier and the regional tier would be the
    amount of necessary funding to be transferred between the lower tier and the
    upper tier.

So I think if youre going to be truly a partner, open it up,
    allow us to look at all types of options and credits, and then that might help
    us resolve the issue.

[10]

Durham
    council approved the proposed amendment and adopted By-Law 85-2004 (By-Law), as
    amended, transferring the responsibilities for public transportation from the
    lower-tier municipalities to Durham. The By-Law had an Effective Date of
    January 1, 2006. Oshawa council approved the By-Law on February 7, 2005.

[11]

Section
    2 of the By-Law addresses how the transfer of assets, liabilities and personnel
    is to be effected. Section 2(k) imposes an obligation to negotiate the amount
    and future payments of any unfunded liabilities. Section 2(o) provides for a
    right to request arbitration of unresolved matters under the By-Law if no
    agreement has been reached through negotiations between Durham and the
    lower-tier municipalities by April 1, 2006. The full text of the relevant
    provisions are as follows:

2. On the Effective Date, all rights and obligations and all
    assets and liabilities of the lower-tier municipalities pertaining to or used
    for Public Transportation Systems including all real and personal property and
    all interests and obligations in any agreement, shall be transferred to the
    Region subject to the following terms and conditions:

(k)     The
    amount and future payments of any unfunded liabilities existing at the
    Effective Date shall be determined through negotiations between the Region and
    the lower-tier municipalities.

(o)     During
    the Transition Period,
[1]
the Region and the lower-tier municipalities shall negotiate and enter into
    agreements for the transfer of all assets, liabilities and personnel on terms
    that are consistent with this by-law. Any matters not agreed to within three
    (3) months of the Effective Date may, at the request of the Region or a
    lower-tier municipality, be determined by arbitration under the provisions of
    the
Ontario
Arbitrations Act
.

[12]

Implementing
    the transfer of public transit under the By-Law involved complex negotiations
    between Durham and the eight local municipalities. Many issues had to be
    resolved such as the transfer of vehicles, inventory and equipment, resolving
    issues related to the provincial gas tax, transit reserves and development
    charges, arranging for the transfer or leasing of transit-related facilities,
    and other issues such as right of way agreements, insurance and unfunded
    liabilities.

[13]

The
    allocation of responsibility for employee-related unfunded liabilities was a
    most difficult issue. As a first step, Oshawa and Durham agreed to retain an
    actuary to determine the amount of these unfunded liabilities. It is undisputed
    that the amount of unfunded liabilities in issue between the parties is $8.9
    million.

[14]

By
    April 1, 2006  the date specified in s. 2(o) of the By-Law as the earliest
    date for requesting arbitration on outstanding matters  staff of Durham and
    Oshawa had been unable to agree on responsibility for these unfunded
    liabilities. Neither Durham nor Oshawa requested arbitration, and negotiations
    of that issue continued. Indeed, as pointed out by the motion judge, the
    financial statements related to the employee-related unfunded liabilities were
    not available prior to April 1, 2006, and so resolution of the issue was
    impossible before that date: see para. 47 of the motion judges reasons.

[15]

By
    June 1, 2007, many of the transfer issues had been resolved. On that day, Mr. Robert
    J. Clapp, the Treasurer and Commissioner of Finance of Durham, sent Mr. Rick
    Stockman, the Treasurer of Oshawa, a facsimile containing a table entitled
    Summary of Transit Transition Issues. The table summarized the transition
    issues that had been resolved and those that were still outstanding. In a
    covering letter, Mr. Clapp asked Mr. Stockman to look over the table for
    accuracy, provide any necessary clarifications, and indicate whether he agreed
    or disagreed with the summary of the current status of a given issue by marking
    the box marked agree or disagree.

[16]

The
    table identifies one of the issues as Unfunded Liabilities, which is
    described as follows:

Per 2005 OTC [Oshawa Transit Commission] Financial Statements,
    OTC employee related unfunded liabilities total $8.9 million as of December 31,
    2005. Region will be seeking funding on a multi-year payment schedule from the
    City to cover accumulated unfunded liabilities.

[17]

On
    June 5, 2007, Mr. Stockman sent the completed table back to Durham staff. Regarding
    the issue of Unfunded Liabilities, he did not check the agree or the
    disagree box, but rather he wrote in the comments section of the table: Transfer
    by-law directs that the Region will assume all liabilities. In examination on
    his affidavit, Mr. Stockman testified that he and his staff did not put an X
    in either box because we could not be in a position to agree or disagree. That
    would have to be a council decision. Mr. Clapp similarly testified: [W]e knew
    that we couldnt resolve it [the unfunded liabilities issue] at the staff
    level. It was a political decision to be made.

[18]

Shortly
    thereafter, Mr. Clapp drafted a report to the Finance and Administration Committee
    of Durham, a standing committee of Durham council. The June 2007 report, entitled
    Outstanding Transit Transition Issues, stated that Durham and Oshawa staff
    were not in a position to agree on the issue of unfunded employee-related
    liabilities. The report recommended that Durham council refer this issue to an
    independent third party arbitrator in accordance with the By-Law. Mr. Clapp
    sent a copy of the report to Mr. Stockman.

[19]

The
    June 2007 report was initially on the agenda for the Finance and Administration
    Committee meeting to be held on June 13, 2007. However, it was pulled from the
    agenda prior to the meeting and was not, therefore, considered by the Committee
    or by Durham council. All members of Durham council had been provided with a
    copy of the report before it was pulled from the agenda.

[20]

Between
    June 2007 and April 2009, staff of Durham and the lower-tier municipalities had
    further discussions seeking to resolve other outstanding transition issues. There
    were no discussions at the staff level concerning unfunded liabilities
    involving Oshawa during this period.

[21]

On
    April 15, 2009, a report prepared by Mr. Clapp was presented to Durhams Finance
    and Administration Committee. The report recommended ratifying the minutes of
    settlement between Durham and the City of Pickering. The report also recommended
    that Durham council refer the issue of unfunded liabilities involving Oshawa to
    arbitration within the next 90 days in accordance with the By-Law. By this
    time, disputes concerning unfunded liability issues involving two other local municipalities
    had been resolved.

[22]

After
    the report had gone to Durhams Finance and Administration Committee but before
    it was presented to Durham council, Oshawa council passed a resolution dated
    April 20, 2009 denying responsibility for the unfunded liabilities. The resolution
    denied responsibility on the basis that Durham had assumed liability for the
    unfunded liabilities on January 1, 2006. The resolution also stated that the
    limitation period for referring an unresolved matter to arbitration had expired
    on March 31, 2008.

[23]

Two
    days later, on April 22, 2009, Durham council formally adopted a resolution
    referring the unfunded liabilities issue to arbitration within 90 days.

[24]

On
    May 19, 2009, Oshawa council adopted a further resolution rejecting the notion
    that the unfunded liabilities issue could be referred to arbitration, noting
    that the time horizon of using an arbitrator has passed.

[25]

On
    October 14, 2009, Durham council adopted a resolution to initiate legal
    proceedings against Oshawa to compel its participation in an arbitration of the
    issue of responsibility for the unfunded liabilities.

[26]

Another
    issue between Durham and Oshawa that was the subject of continuing negotiations
    in the latter part of 2009 involved the leasing of a former Oshawa transit
    facility. On November 9, 2009, Oshawa council resolved that it was prepared to
    lease one of its former transit facilities to Durham for nominal rent on the
    condition that Durham would deliver a full and final release respecting the Transfer
    By-Law. Alternatively, the proposal was that Durham would lease the facilities
    from Oshawa for $440,000 per year for five years with specified renewal terms.
    In other words, Oshawa offered to lease the disputed transit facility for a
    nominal rent on condition that Durham drop its request that Oshawa be
    responsible for the unfunded liabilities under the By-Law.

[27]

Durham
    did not accept either alternative and negotiations surrounding the transit
    facility continued. In December 2009, the parties agreed that the transit
    facility would be transferred to Durham outright. Oshawa council stipulated in
    a resolution approving the transfer of the facility to Durham that the
    agreement was not pursuant to Regional By-Law 85-2004 and [was] without
    prejudice to [Oshawas] right to defend any legal proceedings.

[28]

On
    March 22, 2011, Durham commenced a civil action against Oshawa for payment of unfunded
    liabilities in the amount of $8.9 million. Durham based its claim on the terms
    of the By-Law.

[29]

Oshawa
    brought a motion for summary judgment pursuant to Rule 20 of the
Rules of
    Civil Procedure
,
R.R.O.
    1990, Reg. 194, seeking the dismissal of Durhams action. Oshawa argued that the
    claim was commenced after the expiry of the two-year limitation period
    prescribed by the
Limitations Act
. Oshawa also contended in its notice
    of motion that Durhams claim is tantamount to a claim for liquidated damages
    arising from an alleged breach of a by-law, for which there is no basis under
    the By-Law and no cause of action known to law.

[30]

On
    the motion, the parties agreed that if Oshawas summary judgment motion was
    dismissed, Durhams action would be stayed and the parties would proceed to
    binding arbitration. The motion judge did not consider whether Durhams claim
    has any chance of success. The parties on appeal did not raise this issue and, accordingly,
    I do not address it.

THE MOTION JUDGES DECISION

[31]

The
    motion judge dismissed Oshawas motion for summary judgment. She found that the
    two-year limitation period did not begin to run against Durham until April 21,
    2009. The motion judge indicated that this was the date when Durham received
    notification that Oshawa council had passed a resolution denying responsibility
    for the unfunded liabilities and taking the position that the limitation period
    for referring an unresolved matter to arbitration had expired. The motion judge
    found that, because municipal staff cannot bind a municipality, the limitation
    period cannot be triggered until municipal council formally confirms its
    position denying liability: see the motion judges reasons, at para. 52. She therefore
    concluded that Durhams action, initiated on March 22, 2011, was commenced
    within the applicable limitation period.

ISSUE

[32]

The
    issue in this appeal involves an interpretation of the discoverability
    principle enshrined in s. 5(1) of the
Limitations Act
. Specifically,
    the issue is as follows: when did the limitation period in the
Limitations
    Act
begin to run on the facts of this case having regard to the definition
    of when a claim is discovered in s. 5(1) of the Act?

RELEVANT STATUTORY PROVISIONS

[33]

The
Limitations Act
provides that a proceeding must be commenced within
    two years of the day when the claim was discovered. Section 4 of the
Act
states:

4. Unless this Act provides otherwise, a proceeding
    shall not be commenced in respect of a claim after the second anniversary of
    the day on which the claim was discovered.

[34]

Section
    5(1) of the
Act
explains when a claim is discovered within the
    meaning of s. 4. This provision states:

5.
    (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim
    first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by
    or contributed to by an act or omission,

(iii) that the act or omission was that of the
    person against whom the claim is made, and

(iv)
that, having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it
; and

(b) the day on which a reasonable person with the
    abilities and in the circumstances of the person with the claim first ought to
    have known of the matters referred to in clause (a). [Emphasis added.]

[35]

It
    is common ground between the parties that at no time did they enter into a
    tolling or standstill agreement under s. 11 of the
Limitations Act
,
    nor did they enter into an agreement under s. 22 of the
Limitations Act
to suspend or extend the two-year limitation period.

[36]

Section
    52(1) of the
Arbitration Act, 1991
,
    S.O. 1991, c. 17,
applies the law with respect to limitation
    periods to an arbitration as if the arbitration were an action and a claim made
    in the arbitration were a cause of action. No issue was taken that the
    limitation period for arbitration is two years.

OSHAWAS POSITION

[37]

Oshawa
    points out that the By-Law provides that the parties could send any outstanding
    issue to arbitration by April 1, 2006, three months after the effective date of
    the transfer of responsibility. Oshawa argues that by April 1, 2006, Durham
    staff knew that there was no agreement on the issue of unfunded liabilities and
    also knew that Oshawa staffs position was that Durham had agreed to assume
    unfunded employee liabilities under the By-Law. Accordingly, Oshawa contends
    that the limitation period for arbitrating or commencing a civil claim for
    payment of unfunded liabilities began on April 1, 2006 and expired on April 1,
    2008.

[38]

In
    the alternative, Oshawa argues that even if the discoverability principle in s.
    5(1) of the
Limitations Act
applies, it was by no later than June 2007
    that a
reasonable person exercising due diligence would have
    known of a potential claim
against Oshawa for the unfunded liabilities.
    By June 2007, it was clear to Durham council that Oshawa would not agree to assume
    the unfunded liabilities. This position was confirmed and acknowledged by
    Durham in a staff report prepared in June 2007 for presentation to Durham
    council. That report recommended that the Oshawa unfunded liability issue, as
    well as an outstanding unfunded liability issue with the Town of Ajax, be referred
    to arbitration.

[39]

In
    Oshawas view, the fact that the report was pulled and was not formally
    presented to Durham council is irrelevant. The report would have been seen by
    the members of Durham council and it clearly showed that no agreement on the
    unfunded liabilities issue could be reached. Further proof that the dispute had
    crystallized can, in Oshawas submission, be found in the fact that, after June
    2007, the issue of unfunded liabilities was not discussed at the staff level.

[40]

In
    Oshawas view, the motion judge erred in concluding that Oshawa had to pass a
    by-law or resolution denying liability in order for the limitation period to
    begin to run. Oshawa thus contends that the limitation period had expired long
    before Durham issued its statement of claim in 2011.

ANALYSIS

[41]

I
    do not accept either of Oshawas arguments concerning when the limitation
    period was triggered on the facts of this case.

[42]

It
    is important to recognize that we are not dealing with a commercial transaction.
    Rather, this case involves a transaction governed by a municipal by-law that
    was adopted pursuant to the authority granted to municipalities by s. 189 of the
Municipal Act
. This provision permits passing a by-law that transfers
    a lower-tier municipal power to an upper-tier municipality, provided that the
    statutory conditions set out in s. 189(2) are met.

[43]

The
    By-Law authorizing the transfer of responsibility for regional transit from the
    eight lower-tier municipalities to Durham contains little detail regarding how the
    complex transfer of rights, obligations, assets and liabilities was to be accomplished.
    Much was left to negotiations between the lower-tier municipalities and Durham.
    Some aspects of these negotiations were straightforward. Others were not.

[44]

The
    issue underlying Durhams action was not straightforward. Although the By-Law
    provided that the liabilities of the lower-tier municipalities pertaining to
    or used for Public Transportation Systems are to be transferred to Durham, the
    By-Law further stated that this transfer was subject to the amount and future
    payments of any unfunded liabilities existing at the Effective Date being
    negotiated between the parties. In effect, who was to bear the burden of the
    unfunded liabilities was to be the subject of negotiations.

[45]

With
    respect to the unfunded liabilities, the By-Law thus did not create a debt or impose
    a specific obligation to pay as between Durham and Oshawa. The By-Law simply
    imposed an obligation on Oshawa and Durham to negotiate this issue.

[46]

Moreover,
    ss. 2(k) and (o) of the By-Law left the negotiation of the unfunded liabilities
    issue to be carried out within the context of the broader negotiations over the
    other issues that required agreement between Durham and the lower-tier municipalities.
    As the Oshawa councillor who proposed the amended wording in s. 2(k) of
    the By-Law explained in the Durham council meeting, this provision allows:

everything to be put on the table, and the amounts of unfunded
    liabilities, review a number of scenarios as to how theyre going to be paid,
    and negotiate, and then bring that back for a recommendation  [I]f youre
    going to be truly a partner, open it up, allow us to look at all types of
    options and credits, and then that might help us resolve the issue.

[47]

In
    other words, in allowing other issues such as the transfer of buildings, land,
    vehicles, reserve funds and the like to be negotiated by the parties, the By-Law
    was intended to facilitate compromise on the unfunded liabilities issue.

[48]

In
    my view, the inability of Oshawa and Durham staff to resolve the unfunded
    liabilities issue by April 1, 2006 did not trigger the running of the
    limitation period on that date. The By-Law uses permissive rather than
    mandatory language, stating that either party may refer unresolved matters to
    arbitration by April 1, 2006. Thus, the By-Law simply provides that arbitration
    is an option if any matter could not be resolved through negotiations by April
    1, 2006. The By-Law did not impose a deadline by which time negotiations must come
    to an end and arbitration must be undertaken.

[49]

Nor
    do I accept Oshawas alternative position that the limitation period was
    triggered in June 2007, when Durham staff forwarded to Oshawa staff a report
    stating that regional and area municipal staff are not in a position to agree
    on this [unfunded liabilities] issue. This statement is consistent with the testimony
    given by Oshawas treasurer, Mr. Stockman, to the effect that, in June 2007, he
    was not in a position to agree or disagree on the unfunded liability issue
    and that this issue would have to be a council decision. In other words, only
    Oshawa council could compromise on this issue.

[50]

As
    explained by Mr. Clapp, Durham staff understood this statement in the report to
    mean that Oshawa staff did not have any marching orders with respect to the
    unfunded liabilities issue. The unfunded liabilities issue was an issue that
    Oshawa council needed to resolve with Durham council. Durham staff therefore
    operated on the basis that this issue should be left until the negotiations at
    the staff level had run their course. Referring it to council would then afford
    Durham and Oshawa council the opportunity to decide whether a compromise on the
    unfunded liabilities issue could be reached.

[51]

The
    June 2007 report was not, as Oshawa suggests, an acknowledgment that a dispute
    with Oshawa had crystallized and a compromise on the unfunded liabilities issue
    was not possible. In my view, the decision to withhold the tabling of the
    report at the June 2007 meeting of Durham council reflected that the
    negotiations prescribed by the By-Law had not run their course. The fact that Oshawa
    and Durham staff made no attempt to resolve the unfunded liabilities issue
    after June 2007 simply reflected their understanding that this issue could only
    be resolved at the council level and that it should go to council only after staff
    had resolved as many of the other transfer issues as possible.

[52]

In
    the end, neither Oshawa nor Durham council proposed a compromise to the unfunded
    liabilities issue. Instead, as noted above, Oshawa council adopted a resolution
    on April 20, 2009 denying responsibility for the unfunded liabilities and
    stating that the limitation period for referring unresolved matters to
    arbitration had expired on March 31, 2008. This resolution was prompted by a
    Durham staff report dated April 15, 2009, recommending that the unfunded
    liabilities issue involving Oshawa be referred to arbitration within 90 days.
    This recommendation was adopted by Durham council on April 22, 2009.

[53]

The
    resolution adopted by Oshawa council on April 20, 2009 informed Durham council that
    the unfunded liabilities issue was no longer negotiable and that an impasse had
    been reached. Durham council now knew that the negotiations prescribed by s.
    2(k) of the By-Law would not bear fruit and had come to an end. Thus, in my
    view, by April 20, 2009, Durham council would reasonably have known that, if it
    wished to seek to hold Oshawa liable for all or part of the unfunded
    liabilities, it would need to pursue arbitration or commence a civil proceeding.
    In other words, the claim was discovered in accordance with the definition of
    s. 5(1) of the
Limitations Act
as of that date. Accordingly, Durhams
    statement of claim issued on March 22, 2011 was brought within the two-year
    limitation period prescribed by the
Limitations Act
.

[54]

Although
    the motion judges reasons could be taken as suggesting that a municipal
    council must pass a formal resolution disputing a claim in order to trigger the
    limitation period under the
Limitations Act
, I wish to make it clear
    that I do not agree with this view as a general statement of law. It is only on
    the particular facts of this case that the limitation period was triggered by Oshawa
    councils passage of a formal resolution denying responsibility for the
    unfunded liabilities.

[55]

In
    summary, the terms of the By-Law that gave rise to the dispute between Oshawa
    and Durham did not create a specific debt or obligation as between the parties.
    Rather, it imposed on the parties an obligation to negotiate the issue
    underlying Durhams eventual claim for monetary relief. The By-Law allowed the
    parties to submit any outstanding dispute to arbitration, but it did not
    require them to elect arbitration, let alone to elect arbitration by any
    particular date. Accordingly, it was only when Oshawa council passed a formal
    resolution refusing to continue the negotiations mandated by the By-Law and
    refusing to arbitrate that Durham council ought reasonably to have known that a
    civil proceeding was the appropriate means to seek to remedy the loss or damage
    it alleges to have suffered.

[56]

Finally,
    I note that nothing in these reasons should be taken as addressing or resolving
    the extent to which Oshawa or Durham, or both, are responsible for the unfunded
    liabilities referred to in the By-Law.

CONCLUSION

[57]

Although
    I would do so for reasons that are different from the motion judge, I conclude
    that Durhams claim was commenced within the two-year limitation period, that there
    is no genuine issue for trial on the limitation issue, and that Oshawas
    summary judgment motion was properly dismissed on this ground.

[58]

As
    a result, I would dismiss the appeal. As agreed by the parties, I would make no
    order as to costs.

Paul Rouleau J.A.

I agree K.M. Weiler
    J.A.

I agree Robert J.
    Sharpe J.A.

Released: September 25, 2013

[1]
The By-Law defines the Transition Period as the period of time between the
    date that the By-Law received the triple approval required by s. 189(2) of the
Municipal
    Act
, which was February 5, 2005, and the Effective Date, which was January
    1, 2006.


COURT OF APPEAL FOR ONTARIO

CITATION: Fernandez (Re), 2013 ONCA 595

DATE: 20130930

DOCKET: C56634

Doherty, Rouleau and Pepall JJ.A.

IN THE MATTER OF WILLIAM FERNANDEZ

AN APPEAL UNDER PART XX.1 OF THE
CODE

Paul Burstein, appearing for the appellant as
amicus
    curiae

A. Menchynski, appearing for the Crown

B. Walker-Renshaw, appearing for the Person in Charge, Ontario
    Shores Centre for Mental Health Sciences

Heard:  September 27, 2013

On appeal from the disposition of the Ontario Review
    Board dated, January 3, 2013.

APPEAL BOOK
    ENDORSEMENT

[1]

This is a close case.  The reasons of both the majority and the dissent
    are clear and cogent.

[2]

We do not agree with Mr. Bursteins able submission that the majority
    misapprehended Dr. Hills evidence.  His evidence, considered in its totality,
    was properly reflected in the majoritys reasons.

[3]

As there is no misapprehension of the evidence, the appeal turns on the
    reasonableness of the decision.

[4]

Bearing in mind the deference owed to the Boards analysis of the
    evidence (see pp. 7-8 of the reasons), we see no basis upon which to interfere
    with the majoritys decision.

[5]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Gallos v. Toronto (City), 2013 ONCA
    553

DATE: 20130912

DOCKET: C49733

Feldman, Juriansz and MacFarland JJ.A.

BETWEEN

William Gallos

Appellant

and

City of Toronto

Respondent

ENDORSEMENT

[1]

On November 30, 2009, this court dismissed the appellants appeal from
    the decision of Trotter J. dated November 14, 2008. On June 13, 2013, the
    appellant filed application material seeking to re-open the decision on the
    appeal and to file fresh evidence. The evidence proposed to be filed does not
    meet the test for the admission of fresh evidence on an appeal, nor the
    criteria for reopening a decision of this court under rule 59.06 of the
Rules
    of Civil Procedure
. The application is dismissed.

K. Feldman J.A.

R. Juriansz J.A.

J. MacFarland J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Grant v. Collingwood (Town), 2013
    ONCA 568

DATE: 20130917

DOCKET: C56877

Weiler, Goudge and Rouleau JJ.A.

BETWEEN

Gary Grant

Appellant

and

The Town of Collingwood

Respondent

Gary Grant in person

P.J. Harrington for the respondent

Heard: September 13, 2013

On appeal from the judgment of Justice G.P. DiTomaso of
    the Superior Court of Justice, dated March 21, 2013.

APPEAL BOOK ENDORSEMENT

[1]

It is clear from the reasons of the motion judge that the appellant is
    not bound by the Site Plan Agreement.

[2]

Counsel for the respondent has confirmed that the Town of Collingwood
    agrees with the motion judges conclusion in this regard.

[3]

In our view, therefore the motion judges finding that the appellant has
    no standing is correct.

[4]

The appeal is dismissed. Costs to the respondent are fixed in the amount
    of $8,000 inclusive of disbursements and taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Khan v. Metroland
    Printing, Publishing & Distributing Ltd., 2013 ONCA 571

DATE: 20130920

DOCKET: C57137

Feldman, Tulloch and Lauwers JJ.A.

BETWEEN

Colleen Khan,
Ray Khan
,
    Shelly Khan,
James Khan
and
Sonny
    Khan

Applicants (Appellants)

and

Metroland Printing, Publishing & Distributing
    Ltd., Ian Proudfoot, Brenda Larson, Debora Kelly, David Teetzel, Christopher
    Douris and William F. Bell

Respondents (Respondents)

Philip P. Healey and Mark van Zandvoort, for the
    appellants

Ryder Gilliland, for the respondents Metroland Printing,
    Publishing & Distributing Ltd., Ian Proudfoot, Brenda Larson, Debora Kelly,
    David Teetzel and Christopher Douris

Charles M. Loopstra, Q.C., for the respondent Estate of William
    F. Bell

Heard and released orally: September 16, 2013

On appeal from the judgment of Justice
Ian V.B.
Nordheimer of the Superior Court of Justice,
    dated February 11, 2013, reported at 2013 ONSC 944.

ENDORSEMENT

[1]

The appellants appeal the orders of Nordheimer J. dated February 11,
    2013 dismissing the appellants action for delay.

[2]

The action arose out of statements published by the respondent Metroland
    during the 1997 municipal election.  Colleen Khan (now deceased), was a mayoral
    candidate for Richmond Hill.  One of the respondents, William Bell (now
    deceased), was the successful candidate in the same mayoral election.  The
    appellants commenced an action in January 1998 alleging that defamatory statements,
    including statements allegedly made by William Bell, were published in
    Metrolands newspaper.  The respondents delivered a Statement of Defence in
    February 1998. The respondent Bell also delivered a counter-claim alleging
    libel and slander contained in Colleen Khans campaign literature.

[3]

The appellants filed Statements of Defence in March 1998.  The
    examination for discovery of the respondent Bell took place in October 1998.
    One other examination for discovery also took place at that time.  No other
    examinations have since occurred.

[4]

Nordheimer J. was appointed as case management judge in June 2001 and
    thereafter dealt with the respondents motion to dismiss on the basis of
    failure of one of the appellants to pay prior costs.  In July 2001, Nordheimer
    J.  made an order requiring the appellants, with the exception of one, to post
    security for costs.  The Divisional Court allowed the appeal and set aside the
    costs order.  This Court dismissed the respondents appeal in May 2005.

[5]

Since May 2005, no further steps in this action have been taken by the
    parties, other than the respondents motion to dismiss for delay.

[6]

In responding to the motion Nordheimer J. made the following comments at
    paras. 33, 34, 36 and 37 of his decision.  He said this:

In the end result, more than fifteen years have passed since
    the alleged libel took place.  Fourteen years have passed since the action was
    commenced.  Outside of some discovery steps taken in 1998, nothing has been
    done by the plaintiffs to bring this action to trial.  The plaintiffs make the
    bald allegation in their responding affidavit that they attempted to set this
    matter down for trial but were unable to with nothing more.  In addition, now
    faced with this motion, the plaintiffs say that they have conducted what
    discoveries they wish to conduct and want to proceed to trial.  If that is
    true, given that these discoveries were conducted in 1998, it poses the obvious
    question why the action was not set down for trial at any point in the last fourteen
    years unless, of course, this realization has only occurred very recently and
    solely in response to this motion.

The fact is that there has been inordinate delay in this
    proceeding and that delay lies almost entirely at the feet of the plaintiffs
    and their lawyers.  There is a presumption of prejudice that rises from this
    delay that is reinforced by evidence of actual prejudice through the loss of
    witnesses.

In the end result the situation here falls squarely within the
    principle enunciated in
1196158 Ontario Inc. v. 6274013 Canada Ltd.
,
    (2012), 112 O.R. (3d) 67 (C.A.) and, in particular, where Sharpe J.A. said at
    para. 33:

At some point, a party who has
    failed to respect the rules designed to ensure timely and efficient justice,
    loses the right to have its dispute decided on the merits.  If that were not
    the case, the rules and timelines they imposed would cease to have any meaning
    and any hope of ensuring timely and efficient justice would be seriously
    jeopardized.

If the requirement established by r.24.01(1) is not applied in
    situations such as is presented here, is difficult to foresee the type of case
    where realistically it would ever be applied.

[7]

We see no palpable or overriding error in the conclusions of Nordheimer
    J. We therefore dismiss the appeal, with costs to the respondent Bell in the
    amount of $5000 all inclusive, and to the Metroland respondents in the amount
    of $2500 all inclusive.

K. Feldman J.A.

M. Tulloch J.A.

P. Lauwers J.A.