A three-judge panel rejected a call for a judicial review of a Puslinch Township council decision not rename Swastika Trail near Puslinch Lake.
Here is the text of ruling by Swinton J., Newton J. and Favreau J.:
CITATION: Guzar v. The Corporation of the Township of Puslinch, 2019 ONSC 3511
DIVISIONAL COURT FILE NO.: 207/18
DATE: 20190606
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Newton and Favreau JJ.
B E T W E E N :
RANDY GUZAR AND WILLIAM KNETSCH
Applicants
– and –
THE CORPORATION OF THE TOWNSHIP OF PUSLINCH AND BAYVIEW COTTAGERS’ ASSOCIATION
Respondents
Christopher Di Matteo
for the Applicants
Meghan Cowan
for the Respondents
HEARD at Toronto: April 18, 2019
BY THE COURT:
Overview
The applicants, Randy Guzar and William Knetsch, seek to judicially review two decisions of the Council of the Corporation of the Township of Puslinch (“Council”), whereby Council voted not to pass two resolutions that would have implemented a process to change the name of Swastika Trail, which is a private road located in Puslinch (the “Road”).
[2] The applicants assert that the swastika is a symbol that has represented hatred, white supremacy and anti-semitism since World War II in Canada and elsewhere in the world, and they feel strongly that the name of the Road should be changed. They argue that Council unlawfully sub-delegated and fettered its decision on the issue of whether to change the name of the Road by basing its decisions on the outcome of a vote held by the Bayview Cottagers’ Association (the “Cottagers’ Association”).
[3] There is no doubt that, to many people in Canada in the 21st century, the swastika is an abhorrent symbol, reminiscent of the atrocities perpetrated by the Nazis during World War II. However, the discrete issue raised on this application is whether Council for the Township of Puslinch acted lawfully when it voted not to change the name of the Road.
[4] For the reasons that follow, we find that Council did not unlawfully sub-delegate its decision making power or fetter its discretion, and the application is therefore dismissed.
Background
The Road
[5] In Ontario, private roads are roadways that are owned by one or more land owners. There are typically few municipal services provided to private roads, and the owners of private roads are responsible for all road work and maintenance.
[6] While the Municipal Act, 2001, S.O. 2001, c. 25 gives municipalities significant powers to develop and maintain public roads, the Act gives municipalities very limited powers over private roads. One of those powers is the discretion to change the name of a private road as provided for in section 48 of the Act:
A local municipality may name or change the name of a private road after giving public notice of its intention to pass the by-law.
[7] The Road in this case is located in the Township of Puslinch near Puslinch Lake, which is an area of the Township occupied by cottagers and year-round residents. While the Road is privately owned, it runs into a municipal road, Travelled Road, and is therefore accessible to the public and used as a public thoroughfare. It appears that the Road’s name dates back to at least the early 1920s.
[8] The Road is owned by 2222703 Ontario Limited, which is a private corporation controlled by one of the homeowners on the Road, Paul Wyszynski.
[9] There are approximately 54 residents on the Road.
The parties
[10] The applicant, Randy Guzar, and his wife have lived on the Road for the past eighteen years. Mr. Guzar swore an affidavit on the application. Mr. Guzar is part of a group of people in the area who want to change the name of the Road. Mr. Guzar’s father fought in World War II, and he associates the swastika with the bigotry and genocide of the Nazi regime. He believes that it remains a symbol used to promote white supremacy and anti-semitism. He does not want to be linked with the symbol, and he says that when he presents his driver’s licence or health card, he is routinely asked if he is a white supremacist or a neo-Nazi.
[11] The applicant William Knetsch lives in the Township of Puslinch and he also swore an affidavit on the application. Mr. Knetsch does not live on the Road, but he lives in the surrounding community and he too has been active in trying to change the name of the Road. His parents lived in Holland during the Nazi occupation, and were liberated by Canadian soldiers. He finds the swastika to be deeply offensive, upsetting and disturbing. He does not want to be associated with the symbol, and does not believe that Canadian society should accept the swastika as an appropriate name for a publicly-accessible road.
[12] The Township of Puslinch is a lower-tier municipality in Wellington County, which surrounds the southern part of Guelph. The Township has a five member Council, comprised of the mayor and four councillors.
[13] The Township’s Deputy Clerk, Nina Lelic, swore an affidavit in response to the application. Ms. Lelic’s affidavit describes the process leading to the votes on the two resolutions challenged on this application.
[14] The Cottagers’ Association is an unincorporated association of property owners in the Bayview subdivision of the Township, which includes the Road. The association has 82 members, 54 of whom have residences on the Road. While it is named as a respondent, the Cottagers’ Association did not participate as a party at the hearing of the application.
Township receives complaints about the Road’s name
[15] In May of 2017, one of the Road’s residents wrote to the Township raising concerns about confusion created by the Road’s name, given that it is connected to two other municipal roads, including Travelled Road. She suggested that all three connected roads should be named Travelled Road.
[16] Besides this letter, around the same time, Council received a number of other complaints about the name of the Road.
[17] At a Council meeting on June 21, 2017, Council voted to refer the letter to the Township’s staff for the purpose of obtaining a report on whether the Road should be renamed.
[18] The Township staff prepared a report dated August 9, 2017, addressing the advisability of changing the Road’s name. The report reviews comments received from a number of public bodies, including the fire and emergency departments. Based on this consultation, the report concludes that renaming the Road to a common name, such as Travelled Road, may cause confusion over issues such as maintenance because part of the road would be owned by the municipality while another part of the road would be owned privately.
[19] However, the report goes on to make the following recommendation regarding a process to be followed to rename the Road:
The following is an overview of the recommendations for the renaming of Swastika Road:
1. Obtain the consent of all residents on Swastika Road;
2. Work with Township and County staff in determining the best approach in the renaming of the Road;
3. Provide Council with an update of the proposed renaming;
4. Upon Council approval, provide public notice of the intention to pass a by-law changing the name of the road;
5. Final Council approval of the name change and associated process;
6. Change of the signs, at the cost of the Bayview Cottagers Association.
7. All residents will be responsible for updating all of their legal documents noting the address change (i.e. driver’s licenses, etc.)
8. The Township and the County would replace the name in all applicable records.
[20] The report concluded with a note that Canada Post intended to change the postal code in the Township, including for addresses on the Road, in early 2018.
[21] The report was received by Council at a meeting on August 9, 2017. At that meeting, Council also heard presentations from a number of people, including the resident of the Road who had written the May 2017 letter and Mr. Wyszynski, who as mentioned above controls the corporation that owns the Road.
[22] Council met again on September 6, 2017. At that meeting, Council again heard from Mr. Wyszynski who expressed his opposition to changing the name of the Road. Council then passed the following resolution to “encourage” the Cottagers’ Association to consider renaming the Road:
WHEREAS concerns have been expressed to Council with regard to the name of the privately owned road Swastika Trail;
AND WHEREAS Council encourages the Bayview Cottagers’ Association to consider the renaming of the privately owned road;
NOW THEREFORE BE IT RESOLVED that Council hereby requests the Bayview Cottagers’ Association to consider the renaming of Swastika Trail to a name of its choosing;
AND THAT the Bayview Cottagers’ Association be advised that the Township will contribute towards the costs to replace street name signs up to a maximum of up to $500; and
AND THAT a copy of this resolution be sent to MP Michael Chong and MPP Ted Arnott for their information.
[23] Pursuant to the resolution, on October 12, 2017, the Township wrote to the Cottagers’ Association. The letter set out the text of the resolution and concluded as follows:
The Township respectfully requests the Bayview Cottagers’ Association to have its membership in accordance with its constitution and principles to consider at a Special General Meeting the above request of Council.
Upon consideration of the request please advise the Township:
• The date the Special General Meeting was held to consider the request; and
• Confirmation that notice, quorum and majority vote requirements of your constitution and principles were met; and
• The Association’s decision.
Cottagers’ Association Vote
[24] Following receipt of the letter from the Township, on October 26, 2017, the Cottagers’ Association sent a notice to the residents on the Road, convening a special meeting on November 1, 2017. At the meeting, the attendees held a vote on whether to change the name of the Road, with the following results:
• 25 residents voted to retain the name;
• 20 residents voted to change the name; and
• There was 1 spoiled ballot.
[25] Following the November 1, 2017 meeting, Mr. Guzar wrote a letter to the Township stating that there was “much that was flawed with the meeting and the vote, including an executive that ran the meeting without regard to being fair to all parties”. He went on to give some examples and to express his strong view that the Road should be renamed.
[26] In his affidavit on this application, Mr. Guzar has provided additional information in support of his perspective that the November 1, 2017 meeting was unfair, including the following:
a. The Cottagers’ Association’s constitution requires that notice of special meetings be provided to all members of the association. However, notice of the meeting in this case was only provided to members who reside on the Road.
b. Mr. Guzar believes that the meeting notice provided by the Cottagers’ Association was one-sided. It contained a link to an article on the internet about the history of the swastika before it was used as a symbol by the Nazis. In addition, the notice provided a lengthy list of address changes that would have to be made by residents if the Road name was changed.
c. Mr. Guzar states that he and the others who supported the name change were not given an opportunity to provide input into the contents of the meeting agenda.
d. At the beginning of the meeting, members of the Cottagers’ Association Executive distributed a pamphlet about the positive history of the swastika before it was used by the Nazis.
e. At the meeting, Mr. Guzar read a letter from B’Nai Brith opposing the Road’s name, but he was subsequently not permitted to append the letter to the meeting’s minutes. In contrast, Mr. Guzar states that other letters in support of maintaining the name of the Road were appended to the minutes.
f. Mr. Guzar also states that, contrary to the Cottagers’ Association’s constitution, no proxy votes were allowed. In addition, no attempt was made to ensure that residents who voted were up to date on the payment of their dues, which is also a requirement for voting under the Association’s constitution.
Preparation for Council vote
[27] Following the Cottagers’ Association vote, the Township staff prepared another report dated December 6, 2017. The report sets out the results of the November 1, 2017 vote held by the Cottagers’ Association. The report noted that members of Council had received complaints about the name of the Road. The report also included a discussion of section 48 of the Municipal Act, 2001, and reviewed the process followed in three other municipalities for changing the names of private roads. The report concluded with a section titled “Next Steps” that outlined two options to deal with the renaming of the Road:
The following is an overview of the options regarding the naming of Swastika Trail:
1. Approve the resolution receiving this report thus leaving the private name unchanged, as per the vote received from the residents of Swastika Trail. In this case, Council would not exercise its discretionary authority to rename the private road.
2. Should Council wish to proceed with renaming Swastika Trail, a resolution would need to be passed indicating Council’s intent to change the name of Swastika Trail, and it would direct staff to engage in the following process:
• A letter be sent to all property owners on Swastika Trail asking for an alternative name. Each property would be able to submit one alternative option. The letter would encourage residents of the Trail to work together as part of their submission process, so that the submitted name list is the best reflection of the preferences of the community.
• Staff would come back to Council with a report outlining the submitted alternative names, along with comments from all relevant agencies (Fire and the County Emergency Management Department).
• Council would pass a resolution outlining their preferred alternative name.
• Staff would give public notice of the Township’s intention to pass the name changing by-law. Notice would be posted on the Township’s website and a letter would be sent to all Swastika Trail property owners. Notice would note the date of the Council meeting when adoption of the by-law will be considered.
• Staff would bring forward the by-law at the prescribed meeting.
[28] The December 6, 2017 staff report was received at a Council meeting on that date. At that time, Council decided to schedule the vote on the issue of whether to rename the Road to a meeting on December 20, 2017. This was done to ensure that the public had notice of the meeting.
Vote on the two resolutions
[29] At the meeting on December 20, 2017, fourteen separate delegations made representations to Council on the issue of renaming the Road. The delegates included both applicants, Mr. Wyszynski and a representative of B’nai Brith. The delegates’ representations lasted over two hours, and the delegates spoke for and against renaming the Road.
[30] Many of the delegates provided written submissions, which are included in the record. Delegates who supported renaming the Road made reference to the history of the swastika since World War II, how it remains associated with hatred, white supremacy and anti-Semitism, and how they do not want their community to be associated with this history. Delegates who opposed the name change made reference to the fact that the Road had been named in the 1920s at a time when the swastika was not associated with the Nazis, that there would be a significant cost and inconvenience to changing the addresses on the residents’ pieces of identification and that the issue was very divisive in the community.
[31] Following these representations, one Council member put forward the following resolution to change the name of the Road:
WHEREAS Sections 48 and 61 of the Municipal Act 2001 S.O., 2001, c.25 as amended, authorizes a local municipality to pass a By-law to name or to change the name of a private road, and to at any reasonable time, enter upon land to install and maintain a sign setting out the name of the road;
AND WHEREAS Section 48 of the Municipal Act 2001 S.O., 2001, c.25 as amended provides that before a By-law is passed to change the name of a private road, a municipality shall give public notice of its intention to pass the By-law;
NOW THEREFORE BE IT RESOLVED that the Township of Puslinch hereby gives notice of its intention to change the road named Swastika Trail; and
That Council directs staff to:
• Send a letter to all the property owner(s) on Swastika Trail asking for an alternative street name and advising that:
o Each property is invited to submit one alternative street name option.
o Residents (property owner(s)) are encouraged to work together during the submission process, so that the alternative street name options list reflects the preferences of the residents (property owners(s)).
• Report back to Council regarding the submitted street name options, along with comments from all relevant agencies (Fire and the County Emergency Management Department).
• Give public notice on the Township’s website and to each property owner(s) on Swastika Trail advising of the Council meeting date the By-law to change the name of Swastika Trail will be considered for adoption; and
That Township staff installs a new street name sign upon adoption of the Street Renaming By-law; and
That the Township reimburses the Bayview Cottagers’ Association upon submission of receipts an amount not to exceed $1500, for the development and installation of a plaque on private roads within Plan 395 that commemorates the historical significance of the name Swastika Trail.
[32] Following the introduction of the main resolution, a proposed amending resolution was also placed before Council that added the following provision:
That in recognition of the democratic process, the renaming of Swastika Trail be initiated at the same time that Canada Post changes the postal codes for the Trail.
[33] Council members initially voted on the amended resolution, voting 3 to 2 against it. Council members then voted on the original resolution, voting 4 to 1 against it.
[34] In his affidavit, Mr. Guzar states that, prior to voting, Council members did not ask any questions of the delegates and that, after the vote, some of them read what appeared to be pre-prepared statements about the basis for their respective votes. He expresses the view that Council members appeared to rely on the Cottagers’ Association vote, which he finds concerning given the flaws he identified in the November 1, 2017 meeting.
Issues raised by the applicants
[35] The applicants raise three arguments in support of the application for judicial review:
a. The Council unlawfully sub-delegated its decision about whether to change the name of the Road to the Cottagers’ Association;
b. The Council unlawfully fettered its discretion to change the name of the Road by making its decision based on the vote taken by the Cottagers’ Association; and
c. The Council’s decision was unreasonable because it was based on a flawed vote conducted by the Cottagers’ Association.
[36] In response, the Township argues that there was no unlawful sub-delegation or fettering. In addition, the Township argues that section 272 of the Municipal Act, 2001 precludes this Court from scrutinizing the reasonableness of Council’s decisions.
Standard of review
[37] The applicants take the position that the applicable standard of review is reasonableness.
[38] The Township concedes that the Court has the authority to review the lawfulness of the decision, specifically whether Council improperly sub-delegated or fettered its decision. However, the Township argues that the Court does not have the power to review the reasonableness of Council’s decisions.
[39] In Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 (CanLII), at para. 12, the Supreme Court confirmed that municipal by-laws are subject to judicial review and that they can be reviewed on procedural and substantive grounds. In this context, the Court made reference to the inquiry to be conducted by a court as including the reasonableness of a by-law:
A municipality’s decisions and bylaws, like all administrative acts, may be reviewed in two ways. First, the requirements of procedural fairness and legislative scheme governing a municipality may require that the municipality comply with certain procedural requirements, such as notice or voting requirements. If a municipality fails to abide by these procedures, a decision or bylaw may be invalid. But in addition to meeting these bare legal requirements, municipal acts may be set aside because they fall outside the scope of what the empowering legislative scheme contemplated. This substantive review is premised on the fundamental assumption derived from the rule of law that a legislature does not intend the power it delegates to be exercised unreasonably, or in some cases, incorrectly.
[40] However, in Ontario, section 272 of the Municipal Act, 2001, provides that a municipal by-law cannot be quashed by a court on the basis that it is unreasonable:
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.
[41] Section 273(1) of the Municipal Act, 2001 does provide that a by-law can be quashed for illegality, and specifies that “by-law” includes a resolution.
[42] During the hearing of the application, counsel for the applicants argued that we should disregard section 272 of the Municipal Act, 2001. Relying on Catalyst Paper Corp., he argued that the Court has an inherent constitutional supervisory role over the decisions of municipal bodies that includes the ability to scrutinize the reasonableness of municipal by-laws. We note that no authority was provided in support of the position that section 272 of the Municipal Act, 2001 is unconstitutional. In addition, this argument was raised for the first time during oral argument, and therefore the respondent did not have advance notice of this argument nor were the Attorney-General for Ontario and the Attorney-General for Canada served with notices of constitutional question as required by section 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Therefore, in our view, this argument was not properly before us.
[43] In any event, the Court of Appeal for Ontario has previously found that section 272 of the Municipal Act, 2001 does preclude review of a municipal by-law on the basis that it is unreasonable. In Friends of Lansdowne Inc. v. Ottawa (City), 2012 ONCA 273 (CanLII), at paras. 12-13, the Court of Appeal held that, pursuant to section 272, the Court has the authority to quash a by-law on the basis of illegality but not on the basis that it is unreasonable:
[12] Since municipalities are creatures of statute, their jurisdiction is limited to the powers provided by the legislature. Accordingly, a city does not have jurisdiction to pass a by-law that authorizes acts prohibited by its governing legislation. Since a city has no particular expertise in jurisdictional issues, a court will review the legality of a municipal by-law on the standard of correctness: see London (City) v. RSJ Holdings Inc., [2007] 2 S.C.R. 588, [2007] S.C.J. No. 29, 2007 SCC 29 (CanLII), at para. 39. Section 273(1) of the Act gives the Superior Court the discretion to “quash a by-law . . . for illegality”.
[13] Absent illegality, municipal by-laws are well insulated from judicial review. Section 272 of the Act prohibits a review of a by-law passed in good faith “in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law”. Thus, a court cannot interfere with a by-law that is unreasonable, but a court may quash one that is illegal.
[44] Therefore, this Court does not have the authority to review the reasonableness of Council’s two decisions. Our authority to review Council’s decisions is limited to the issues of whether Council unlawfully sub-delegated its decision making power to the Cottagers’ Association and/or whether Council improperly fettered its discretion.
[45] On these issues, in accordance with the decision in Friends of Lansdowne Inc., at para. 12, the Township concedes that the standard of review is correctness.
Analysis
[46] As admitted by counsel for the applicants, the issues of sub-delegation and fettering are closely related. However, given that they are based on different legal principles, they are considered separately below.
Whether Council unlawfully sub-delegated its decision
[47] The applicants argue that, pursuant to section 48 of the Municipal Act, 2001, the municipality was responsible for deciding whether to change the name of the Road, but that it unlawfully sub-delegated that decision making power to the Cottagers’ Association by requesting that the Association hold a vote on the issue in its letter of October 12, 2017.
[48] The Township asserts that while the process it followed included requesting that the Cottagers’ Association hold a vote on the issue, the Township ultimately retained and exercised its authority to decide not to change the name of the Road.
[49] In Collins v. 1660524 Ontario Inc. (c.o.b. Polyframe Moulding), 2013 ONSC 4960 (CanLII) (Div. Ct.), at para. 16, this Court reviewed the rule against sub-delegation of a statutory discretionary power:
This principle was most recently reiterated in Huron-Perth Children’s Aid Society v. Ontario (Ministry of Children and Youth Services), 2012 ONSC 5388 (CanLII), 298 O.A.C. 342 (Div. Ct.), at para. 114, where the court stated as follows:
The Legislature is the original source of power for matters falling within provincial jurisdiction. Through legislation, the Legislature can delegate its powers to ministers and other subordinate officials. The general rule regarding the sub-delegation of statutory powers is delegatus non potest delegare; a person endowed with a discretionary power must exercise it personally except where displaced by the language, scope or object of a particular administrative scheme.
[50] In advancing their argument on this issue, the applicants rely on the Township’s letter, describing it in their factum as the “Delegation Letter”. However, the letter itself and the record as a whole do not support a finding that Council unlawfully sub-delegated its decision making power to the Cottagers’ Association.
[51] As reviewed above, following Council’s September 6, 2017 resolution, the Township sent its letter requesting that the Cottagers’ Association consider renaming the Road. The letter included the text of the resolution and requested that the Association hold a Special General Meeting to address the request, and report the decision back to Council. Neither the resolution nor the letter included any indication or commitment that Council would abide by the vote of the Cottagers’ Association.
[52] Once the vote was held, Council did not treat the Cottagers’ Association’s decision as binding, but, rather, the record shows that it took a number of further steps following receipt of the results before deciding not to change the name of the Road. First, staff prepared a further report setting out the results of the vote and two options for Council, namely adopting the results of the vote or initiating a name change process. Second, Council held a meeting at which it considered the staff report and decided to defer its decision on the issue to December 20, 2017, to give the public an opportunity to participate. Third, on December 20, 2017, Council received extensive written submissions and heard from 14 different delegates, who expressed views for and against the name change. Finally, Council voted on two separate resolutions that would have initiated a name change. While they voted against both resolutions, it is notable that their vote was not unanimous and that the resolutions were not framed as a vote to accept the Cottagers’ Association decision but rather as a vote to initiate a process to change the name of the Road.
[53] Council initially solicited the views of the Road’s residents through the Cottagers’ Association, which it was certainly entitled to do. However, it also gave individual members of the public, including the applicants, an opportunity to present their views before voting on the resolution.
[54] Based on the decision making process as reflected in the record, we do not find that Council unlawfully sub-delegated its decision making power.
Whether the Council unlawfully fettered its discretion
[55] An administrative decision maker, including a municipal council, entrusted with discretionary decision making power must not fetter its discretion by binding itself to exercise its powers in a particular manner: Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64 (CanLII), at paras. 55-56; and Galt-Canadian Woodworking Machinery Ltd. v. Cambridge (City) (1982), 1983 CanLII 1893 (ON CA), 36 O.R. (2d) 417 (Div. Ct.).
[56] The applicants rely on the decision in Tremblay v. Lakeshore (Town), 2003 CanLII 6354 (ON SCDC), [2003] O.J. No. 4292 (Div. Ct.), as an example of a case in which this Court found that a municipal council improperly fettered its discretion. In that case, the municipal council passed a resolution requiring that an application to designate a building as a heritage site include the consent of the building owner. In that context, at paras. 23-24, the Divisional Court held that the council improperly fettered its discretion:
23 Requiring the consent of the owner is not consistent with an overall reading of the Act or its purpose. Indeed, the Act contemplates notice to the owner, possible objections, and a hearing process.
24 The object of the Act is the conservation and protection of the heritage of Ontario. This may interfere with individual property rights. Accordingly, in requiring the consent of the owner as a pre-condition to designation, the Town placed an unreasonable obstacle on its own discretionary powers thereby fettering its discretion and aborting the process intended by the Act.
[57] In this case, as reviewed above, Council did not make it an explicit condition to changing the name of the Road that the Cottagers’ Association vote in favour of such a change. Rather, as mentioned above, Council requested that the Association hold a vote, after which it held a public meeting where it heard from a number of people before voting on the issue.
[58] The applicants argue that, even if Council did not explicitly resolve to be bound by the Association’s vote, some of the councillors fettered their discretion by treating the outcome of the Cottagers’ Association vote as binding. In making this argument, they rely on a number of statements made by Council members following the vote that were reported in the press, which they say demonstrate that Council members made their decision based on the Cottagers’ Association vote.
[59] In Catalyst Power Corporation, at para. 29, the Supreme Court noted that municipal councils do not issue reasons for passing bylaws, so reasons must be deduced from the “debate, deliberations and statement of policy that give rise to the bylaw”:
29 It is important to remember that requirements of process, like the range of reasonable outcomes, vary with the context and nature of the decision-making process at issue. Formal reasons may be required for decisions that involve quasi-judicial adjudication by a municipality. But that does not apply to the process of passing municipal bylaws. To demand that councillors who have just emerged from a heated debate on the merits of a bylaw get together to produce a coherent set of reasons is to misconceive the nature of the democratic process that prevails in the Council Chamber. The reasons for a municipal bylaw are traditionally deduced from the debate, deliberations and the statements of policy that give rise to the bylaw.
[60] In our view, even if the comments by individual councillors reported in the newspaper article are accepted to form part of the record, they are not sufficient to establish that Council fettered its discretion.
[61] This case is similar to Sorensen v. County of Frontenac, 2018 ONSC 3912 (CanLII) (Div. Ct.), at para. 16, where this Court found that public statements by two councillors about reliance on an incorrect legal opinion was not sufficient to establish that Council had improperly fettered its discretion:
16 Further, the applicants have failed to establish that Council fettered its discretion so as to invalidate its action, regardless of which standard of review is applied. There is no evidence that Council arrived at the meeting having already made an irreversible decision. First, only two members of Council are quoted as making comments about the legality of the 2003 Restrictions. As the applicants themselves recognize, these comments may simply have been a public rationale for approving the exemption. In my view, these comments do not raise a legal issue. Second, the councilors were entitled to be guided by legal opinions obtained by staff. Third, the councilors retained the discretion to determine which factors to balance or weigh in arriving at their voting decision, including legal advice.
[62] Similarly, in our view, here the newspaper reports do not establish that Council fettered its discretion. First, the article only quotes four of the five members of Council. Second, as noted above, one member voted in favour of one of the resolutions and two members voted in favour of the other resolution. Third, and perhaps most significantly, the quotes themselves do not suggest that the councillors were only influenced by the Cottagers’ Association’s vote; rather, they reflect consideration of a number of factors, including the divided views in the community, the information Council members heard about the history of the swastika and the fact that the Road is privately owned. For example:
a. While Councillor Ken Roth, who voted against both resolutions, is reported as stating that the Road’s residents “exercised democracy and the majority of the Bayview Cottagers Association members voted to keep the name”, he is also reported as saying that “Having grown up in Canada post-World War Two, to me the Swastika was symbolic of hate and genocide. Only recently did I learn this ancient meaning and its importance to cultures and religions different than my own… One symbol, two contradictory representations to the people in our community.”
b. In the case of Councillor Bulmer, who voted in favour of the amended resolution but against the original resolution, he is reported as stating that “inherent” to the request that the Cottagers’ Association hold a vote “was that council would respect and accept the decision”. He is also reported as stating that Council had to take into consideration Canada Post’s plans to change the Township addresses, which could potentially require the residents of the Road to change their addresses twice. Notably, while he refers to respect for the Cottagers’ Association vote, he did support the name change if it could be implemented at the time of Canada Post’s address change.
c. In the case of Councillor Sepulis, who voted for both resolutions, he indicated that he had proposed a plaque to honour the historical significance of the Road, as a way to provide balance to the unease in the community.
d. For his part, Mayor Lever, who voted against the resolutions, is reported as making a number of statements that reflect various considerations that led to his vote:
“[A] we have seen tonight this is a very emotional issue and there is a big divide between the two sides.”
“I don’t believe that any of the residents who voted to keep the name are hateful or feel that in any way the name is disrespectful.”
“My biggest concern is, when does the government get involved with changing the name of a road – against the will of the people who live there?”
[63] As the Supreme Court noted in Catalyst Power Power Corporation, at para. 19, “[M]unicipal councilors passing bylaws fulfill a task that affects their community as a whole and is legislative rather adjudicative in nature. By-laws are not quasi-judicial decisions. Rather, they involve an array of social, economic, political and other non-legal considerations”.
[64] While the applicants recognize that this Court does not have any authority to review the manner in which the Cottagers’ Association vote was held, they argue that not only did Council improperly fetter its discretion, but it relied on the outcome of a flawed and biased process. However, as reviewed above, in our view, the record is clear that Council did not simply defer to the Cottagers’ Association vote in deciding not to change the name of the Road. In any event, Mr. Guzar made Council aware of his concerns over the manner in which the Cottagers’ Association vote took place. He did so through his letter and, again, as a delegate at the December 20, 2017 meeting. Therefore, Council members were aware of his concerns at the time of the vote.
[65] Ultimately, based on the record as a whole, including the reported comments made by Council members, as in Sorensen, the councillors retained and exercised their discretion to decide whether to direct that a process be undertaken to change the name of the Road. It is evident that Council members did not exclusively base their decision on the Cottagers’ Association’s vote, but that they were influenced by a number of factors.
[66] Accordingly, in this case, the record does not support a finding that Council fettered its decision but, rather, that, as it was entitled to do, it had regard to an array of considerations.
Conclusion
[67] The task of this Court was limited to deciding whether Council acted unlawfully when it voted not to pass the resolutions to undertake a process to change the name of the Road. While Council’s decision was evidently disappointing to the applicants and likely does not accord with the beliefs of many Canadians, based on the arguments advanced by the applicants and the record before us, there is no basis for finding that Council’s decisions were unlawful.
[68] Therefore, the application for judicial review is dismissed.
[69] The Township is entitled to costs, which we fix in the amount of $3,500.