Old St. Boniface Residents Assn. Inc. v. Winnipeg (City)

Old St. Boniface Residents Assn. Inc. v. Winnipeg (City)
Collection
Supreme Court Judgments
Date
1990-12-20
Report
[1990] 3 SCR 1170
Case number
21428
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Manitoba
Subjects
Municipal law
Notes
SCC Case Information: 21428
Decision Content
Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170
Old St. Boniface Residents Association Inc. Appellant
v.
The City of Winnipeg and the St. Boniface‑St.
Vital Community Committee Respondents
indexed as: old st. boniface residents assn. inc. v. winnipeg (city)
File No. 21428.
1990: May 1; 1990: December 20.
Present: Dickson C.J.* and Lamer C.J.** and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for manitoba
Municipal law ‑‑ Municipal corporations ‑‑ Applications for zoning by-laws ‑‑ Bias or apprehended bias ‑‑ Municipal councillor supporting rezoning application in private and subsequently voting in favour of it without revealing prior involvement ‑‑ Whether councillor's conduct raised a reasonable apprehension of bias.
Municipal law ‑‑ Planning ‑‑ Official plan ‑‑ Effect ‑‑ City and district plans providing for residential development and park ‑‑ Rezoning permitting condominium development ‑‑ Whether proposed development conflicted with plans ‑‑ City of Winnipeg Act, S.M. 1971, c. 105, ss. 599, 609.
Municipal law ‑‑ Zoning ‑‑ Amendment ‑‑ Procedure ‑‑ Applicant for rezoning negotiating with municipality to purchase municipal lands and streets to be closed ‑‑ Municipality approving sale to applicant before rezoning passed ‑‑ Whether rezoning proper ‑‑ City of Winnipeg Act, S.M. 1971, c. 105, s. 609(1).
Municipal law ‑‑ Zoning by‑laws ‑‑ Validity ‑‑ Rezoning application brought by intended purchaser of municipal land's without city's authorization ‑‑ Whether rezoning by‑law invalid for failure to comply with statute and procedure ‑‑ City of Winnipeg Act, S.M. 1971, c. 105, s. 609(1).
Winnipeg approved a proposed land development in Old St. Boniface, and adopted the recommendations of the Finance Committee, the Community Committee, the Planning and Community Services Committee and, ultimately, City Council that the land in question be rezoned to permit the erection of two condominium towers, that certain streets be closed and that the streets, together with other city-owned land, be sold to the developer. Prior to public hearings before the Community Committee on the application for rezoning submitted by the intended purchaser of the lands, a municipal councillor had been personally involved in the planning of the proposed development and had appeared as advocate in support of the application at in camera private meetings of the Finance Committee. An election intervened during the period between public meetings in which the councillor took part, and he was re-elected. At the public meetings, he did not disclose his earlier involvement with the application.
Before the re-zoning by-law was passed, the appellant attacked the process by way of originating motion filed in the Court of Queen's Bench. The motions judge quashed the Committee's decision, prohibited the passing of the rezoning by-law, and adjourned the appellant's application to quash the street-closing by-law. The City was further prohibited from implementing or acting upon the street-closing by-law until further ordered by the court. The respondents' appeal to the Court of Appeal for Manitoba was allowed and the appellant's cross-appeal concerning the street-closing by-law was dismissed.
The issues raised in this appeal are: (1) whether the municipal councillor was disqualified by reason of bias from participating in the proceedings of the Community Committee; (2) whether the application for rezoning, which was made by someone other than the owner of the subject land, complied with s. 609(1) of the City of Winnipeg Act; (3) whether the zoning by-law failed to comply with the Greater Winnipeg development plan ("Plan Winnipeg"); and (4) whether the Community Committee acted in bad faith or in violation of a reasonable expectation of consultation.
Held (La Forest, L'Heureux-Dubé and Cory JJ. dissenting): The appeal should be dismissed.
Per Dickson C.J. and Wilson, Sopinka, Gonthier, and McLachlin JJ.: Wiswell v. Metropolitan Corporation of Greater Winnipeg was distinguished. A flexible approach based on the context is now taken with respect to the test to be applied for disqualifying bias. Here, it would not be appropriate to apply the test of a reasonable apprehension of pre-judgment with full vigour simply because of the councillor's appearance as advocate for the development proposal before the Finance Committee. The Legislature could not have intended that the rule requiring a tribunal to be free of an appearance of bias apply to members of Council with the same force as in the case of other tribunals whose character and functions more closely resemble those of a court. Some degree of prejudgment is inherent in the role of a municipal councillor. Nor, however, could the Legislature have intended that there be a hearing before a body which has already made an irreversible decision.
The applicable test is that objectors or supporters be heard by members of Council who are capable of persuasion. This test is consistent with the functions of a municipal councillor and enables him or her to carry out the political and legislative duties entrusted to the councillor. The party alleging disqualifying prejudgment must establish that any representations at variance with the adopted view would be futile. Statements by individual members of Council, while they may give rise to an appearance of bias, will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter.
On the other hand, there is nothing inherent in the councillors' hybrid functions that would make it mandatory or desirable to excuse them from the requirement that they refrain from dealing with matters in respect of which they have either a personal or other interest. Where such an interest is found, both at common law and by statute, a member of Council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that it might influence the exercise of that duty. The motions judge erred in applying the reasonable apprehension of bias test once he had found that the councillor whose impartiality was in question had no personal interest in the development, either pecuniary or by reason of a relationship with the developer.
Per Lamer C.J.: The reasons of La Forest J. in Save Richmond Farmland Society v. Richmond (Township) were agreed with. Applying his test to the facts of this case, the appeal should be dismissed.
On the issue of conformity with Plan Winnipeg, the reasons of Sopinka J. were agreed with.
Per La Forest, L'Heureux-Dubé and Cory JJ. (dissenting): The City was precluded from adopting the zoning by-law in question without first amending Plan Winnipeg. The zoning power of Council is constrained by the community plan, the amendment of which involves consultation with community committees and requires the entire council, rather than simply the executive policy committee, to deliberate on the plan by-law. In adopting a by-law which does not conform to the plan, Council oversteps its statutory authority.
The proposed condominium represented a derogation from Plan Winnipeg. If the City wished to permit development that conflicted with the policy of the Plan, it was first required to seek amendment to the Plan. The procedures for amendment provide for public participation at all stages of policy development and it was not open to Council to circumvent the public process by the simple passage of a zoning by-law.
Judicial review is not inappropriate in this case. The designated commissioner, who determines whether a by-law conforms to the Plan, is not independent of Council but, rather, is appointed by and may be dismissed by Council. Furthermore, there is no privative clause. It is therefore open to the courts to overturn a decision which is legally incorrect. The land in question was clearly designated as parkland on the Plan policy map and the condominium development could not be said to conform to the Plan.
Cases Cited
By Sopinka J.
Distinguished: Wiswell v. Metropolitan Corporation of Greater Winnipeg, [1965] S.C.R. 512; referred to: R. ex rel Ellerby v. Winnipeg, [1930] 1 W.W.R. 914; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; Oley and Moffatt v. Fredericton (1984), 57 N.B.R. (2d) 361; Re McGill and City of Brantford (1980), 111 D.L.R. (3d) 405; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Re Cadillac Development Corp. Ltd. and City of Toronto (1973), 1 O.R. (2d) 20; Re Blustein and Borough of North York, [1967] 1 O.R. 604; Re Moll and Fisher (1979), 23 O.R. (2d) 609; Valente v. The Queen, [1985] 2 S.C.R. 673; Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All E.R. 935; Attorney General of Hong Kong v. Ng Yuen Shiu, [1983] 2 All E.R. 346; R. v. Hull Prison Board of Visitors, ex parte St. Germain, [1979] 1 All E.R. 701; Re Multi‑Malls Inc. and Minister of Transportation and Communications (1976), 14 O.R. (2d) 49; Re Canadian Occidental Petroleum Ltd. and District of North Vancouver (1983), 148 D.L.R. (3d) 255; Gaw v. Commissioner of Corrections (1986), 2 F.T.R. 122; Re Bruhn‑Mou and College of Dental Surgeons of British Columbia (1975), 59 D.L.R. (3d) 152; Save Richmond Farmland Society v. Richmond (Township), [1990] 3 S.C.R. 000.
By Lamer C.J.
Save Richmond Farmland Society v. Richmond (Township), [1990] 3 S.C.R. 000.
By La Forest J.
Christie v. City of Winnipeg (1981), 16 M.P.L.R. 128.
Statutes and Regulations Cited
City of Winnipeg By-laws, 965/75, 2960/81, 3336/82, 3829/84.
City of Winnipeg Act, S.M. 1971, c. 105, ss. 1 (p. 2) "designated committee" [en. 1977, c. 64, s. 2], 2(5), 20(1)(e) [en. 1977, c. 64, s. 10], 495(3), 569(f), 597.1(1) [ad. 1977, c. 64, s. 82], 599 [am. 1974, c. 74, s. 33; 1977, c. 64, s. 84], 609(1), (2) [am. 1972, c. 93, s. 79; 1974, c. 73, s. 54; 1977, c. 64, s. 88; 1982‑83‑84, c. 96, s. 45], (2.1) [ad. 1974, c. 73, s. 54; am. 1975, c. 50, s. 14; 1977, c. 64, s. 88; 1982‑83‑84, c. 96, s. 46], 610(1) [am. 1974, c. 73, s. 57], 611(1), 612(1) [am. 1974, c. 73, s. 58; c. 74, s. 37], (2) [am. 1977, c. 64, s. 91], 614(1) [en. 1982‑83‑84, c. 96, s. 49, 615(1.1) [en. 1978, c. 53, s. 31; am. 1982-83-84, c. 96, s. 51], (3) [en. 1978, c. 53, s. 31; am. 1982‑83‑84, c. 96, s. 53], (4) [en. 1978, c. 53, s. 31].
Community Planning Act, R.S.N.B. 1973, c. C‑12, s. 68.
Municipal Council Conflict of Interest Act, R.S.M. 1987, c. 255, ss. 4, 5, 8.
National Energy Board Act, R.S.C. 1970, c. N‑6, s. 44.
Authors Cited
Rogers, Ian MacFee. Canadian Law of Planning and Zoning. Toronto: Carswells, 1973 (looseleaf).
Rogers, Ian MacFee. The Law of Canadian Municipal Corporations, 2nd ed., vol. 1. Toronto: Carswells, 1971.
APPEAL from a judgment of the Manitoba Court of Appeal (1989), 58 Man. R. (2d) 255, [1989] 4 W.W.R. 708, 43 M.P.L.R. 101, 58 D.L.R. (4th) 138, allowing the respondents' appeal from a judgment of Schwartz J. (1988), 54 Man. R. (2d) 252, 39 M.P.L.R. 271, quashing the decision of the respondent, the St. Boniface‑St. Vital Community Committee, and granting certiorari and prohibition. Appeal dismissed, La Forest, L'Heureux-Dubé and Cory JJ. dissenting.
Arne Peltz and M. B. Nepon, for the appellant.
C. Gillespie and D. McCaffrey, Q.C., for the respondents.
//Sopinka J.//
The judgment of Dickson C.J. and Wilson, Sopinka, Gonthier and McLachlin JJ. was delivered by
SOPINKA J. -- This appeal was heard together with Save Richmond Farmland Society v. Richmond (Township), [1990] 3 S.C.R. 000, and reasons for judgment are being released concurrently. They both raise the question of the application of the rules of natural justice or fairness to municipal councillors when they are called upon to make a decision after hearing representations from interested parties. In particular, these appeals raise the issue of the application to municipal councillors of the rule which requires a member of a tribunal to recuse himself or herself when there exists a reasonable apprehension of bias or prejudgment.
In this appeal the appellant, in addition to the issue of bias, raises the following issues: Did the City have jurisdiction to proceed with the rezoning in the absence of express written authority from all freehold owners of the proposed site? Is the zoning by-law void for non-conformity with Plan Winnipeg? Did breach of an alleged undertaking to involve the Residents Association in a redevelopment plan constitute bad faith or create a right of consultation?
Facts
The appellant is a Residents Association for the area known as Old St. Boniface. It has existed since 1977. It was incorporated in 1979 pursuant to the Neighbourhood Improvement Program, which was a federal, provincial and municipal initiative. Since the completion of that program, the appellant has continued its involvement in area planning through consultation with the Community Committee and others.
It helps to note from the outset the distinction between planning and zoning by-laws. The City of Winnipeg Act, S.M. 1971, c. 105, as amended, calls for various plans of different levels of specificity. The Greater Winnipeg development plan ("Plan Winnipeg") is the most general plan, encompassing the whole City. The Act creates six "communities" within the City, and each is to have a corresponding Community Plan. The most specific plan is called an Action Area Plan. These plans are created or amended by by-law. Planning by-laws do not affect zoning, which for any given parcel of land must be established by a zoning by-law. Under the Act the various plans are to be consistent with one another, and zoning is to be consistent with the plans.
The lands at issue in this case are located across the Red River from downtown Winnipeg, in Old St. Boniface. The Red River borders the area to the north and the west. To the east is an open area called Whittier Park. To the south is the CN mainline, known as the Highline. Prior to 1976, lands immediately adjacent to the Highline were designated as a proposed rapid transit corridor. The area is somewhat isolated from the rest of St. Boniface by the Highline. In 1976 the North St. Boniface District Plan was enacted (By‑law 965/75), which designated the lands north of the Highline as "proposed park area". This plan was and continues to be the Action Area Plan for North St. Boniface. Pursuant to this plan the City commenced acquiring land in the area north of the Highline.
In December 1979, the appellant initiated a review of the Action Area Plan for the purpose of having the area north of the Highline, except for the riverbank property, redesignated for residential land use. Since 1979, it appears to have been a generally recognized goal to encourage people to live in the area north of the Highline. The conversion of then existing residential property by the City to parkland was reducing the population and number of families to a level required for a stable community base in North St. Boniface. Councillor Guy Savoie, the Municipal Councillor for the area, was involved in this review.
City By-laws 3336/82 and 3829/84 changed the planning designation to future residential use. By-law 3829/84 reclassified an area, including that at issue in this case, as residential. However, the scope and density of the residential use were not determined in that by-law. The appellant was apparently aware that a single‑family designation might not provide sufficient population to justify servicing costs of a residential subdivision and that a multiple use might be necessary to meet its objectives. The appellant, however, was opposed to highrise development.
On April 9, 1986, the City passed By‑law No. 2960/81, known as Plan Winnipeg, concluding a process that had been begun years earlier. It shows a portion of the disputed lands as carrying a designation of "regional park", while the balance is designated as "older residential neighbourhood".
As noted above, planning by-laws do not affect zoning. In the spring of 1986, the area north of the Highline was in a variety of parcels with various zoning designations, including M2, light industrial.
We now come to the development giving rise to these proceedings. By the summer of 1986, Tyrone Enterprises Ltd. (Tyrone) had acquired several adjacent parcels of land on rue Messager, in Old St. Boniface north of the Highline. The street is a block in length, running east to west. Tyrone owned most of the south side of the block. The north side is vacant, city-owned land which extends to the Red River. Tyrone intended to build two seven‑storey condominiums. Its plan required consolidating its land with land it would purchase from the City, purchasing and closing certain streets, and changing existing zoning.
In May 1986, Tyrone approached the City about purchasing the city-owned properties plus the land comprising intended street closures. Some time prior to August 1986, discussions took place between representatives of Tyrone and representatives of the City, including Councillor Guy Savoie, at which the proposal was presented and reviewed. On August 6, Tyrone's solicitor wrote to the City, indicating his client's intention to proceed with a rezoning application for the consolidated parcel of land. He asked for a letter from the City authorizing Tyrone to proceed with the zoning application.
On August 7, 1986, Tyrone filed the application. There was as yet no written authorization from the City to apply for rezoning of City-owned lands.
On August 8, 1986, the Land Surveys and Real Estate Department of the City filed a report with the Finance Committee which summarized the discussions that had been held with representatives of Tyrone. It recommended that Tyrone be given an option with respect to the City‑owned lands. The report came before an in camera meeting of the Finance Committee held on August 12, 1986. Although in camera, full minutes of the meeting were kept and were available to the public. Councillor Savoie, although not a member of the Finance Committee, attended and spoke in favour of granting Tyrone an option to buy the necessary lands. The Finance Committee put the matter over to its next meeting, on September 9. At that meeting, Councillor Savoie again spoke in favour of granting the option to Tyrone. The Finance Committee approved of the option as recommended.
By letter dated September 17, 1986, the Director of the Land Surveys and Real Estate Department authorized Tyrone to proceed with the rezoning application in respect of City-owned lands, in the following terms:
Inasmuch as your client now has an interest in those City-owned properties contained within the proposed development area your client may now proceed to make application for rezoning and subdivision.
As noted above, the Act divides Winnipeg into six "communities". Rezoning applications are initially referred to the Community Committee in which the land is located. The Community Committee hears representations from interested persons, and makes a recommendation on the application. The Community Committee is composed of members of City Council who represent a ward within the community. These included Councillors Savoie, Reese and Ducharme. Councillors Reese and Ducharme were also members of the Finance Committee and had voted against the Tyrone development.
The hearing of the zoning application commenced on October 7, 1986. Councillor Savoie was one of three members of City Council present at the meeting. Tyrone's solicitor made a presentation in favour of rezoning. A representative of the appellant opposed rezoning. The application was deferred. In the meantime, on Councillor Savoie's motion, the Community Committee sought further information from the City administration on the impact of the potential development.
The next meeting was November 18, and Councillor Savoie acted as chairman. During the period of the adjournment, a municipal election intervened. Councillors Reese and Ducharme, who had opposed the development, were not re-elected, while Councillor Savoie, who supported it, was. There was lengthy discussion of the application and again the matter was deferred. Before the next meeting, the appellant learned that Councillor Savoie had earlier supported Tyrone's application before the Finance Committee. On December 5, 1986, the appellant wrote to Councillor Savoie, suggesting that he had committed himself in support of the project, and that he therefore should not participate in the decision with respect to zoning at the Community Committee meeting. On December 9, 1986, the Community Committee, including Councillor Savoie, approved Tyrone's application subject to the City's usual requirements, and at the same meeting approved the street-closing by‑law.
The report of the Community Committee recommending the rezoning was then referred to the Committee on Planning and Community Services (the designated committee). On January 5, 1987, with the addition of further conditions, it expressed its agreement to the suggested rezoning. The Executive Policy Committee considered the proposed rezoning at a meeting held on January 14, 1987.
On January 21, 1987, the report of the Committee on Planning and Community Services, recommending the rezoning subject to conditions, came before the plenary session of City Council. After a full debate, Council gave its approval to the intended rezoning, subject to conditions, and directed the city solicitor to prepare the necessary rezoning by‑law and forward it to Council "for all three readings" when the various conditions had been met.
The Committee on Finance and Administration received a report on the negotiations concerning the sale of the land, including city streets, on July 14, 1987. The Committee recommended the sale of all of the lands to Tyrone for $152,530. This recommendation went to City Council on August 19, 1987, and was approved. On August 19, 1987, the City Council also adopted the recommendation of the Committee on Works and Operations to close the streets and on October 1, 1987, the Council passed a by-law closing the streets.
This was the state of affairs when the appellant commenced these proceedings. To summarize:
1. The rezoning had been approved by the Community Committee and by the Planning and Community Services Committee, and then ultimately by City Council itself, but the rezoning by‑law had not yet been passed.
2.The necessary street closings had been completed.
3. Sale of the property, both the land comprised in the closed streets and further City‑owned lands, was approved, but the conveyance of these lands to Tyrone had not yet taken place.
The appellant attacked the process by way of originating notice of motion filed in the Court of Queen's Bench. It sought an order quashing the decision of the Community Committee, an order prohibiting the City from giving third reading to the proposed zoning by-law, and an order quashing the street-closing by-law. The motions judge quashed the Committee's decision, prohibited the passing of the rezoning by-law and adjourned the application to quash the street-closing by-law: (1988), 54 Man. R. (2d) 252. Further, the City was prohibited from implementing or acting upon the street-closing by‑law until further order by the court. The respondents' appeal to the Court of Appeal for Manitoba was allowed and the appellant's cross-appeal concerning the street-closing by-law dismissed: (1989), 58 Man. R. (2d) 255.
Decisions Below
Court of Queen's Bench of Manitoba
Schwartz J. dealt with only two of the grounds argued by the appellant.
Jurisdiction to Proceed Under s. 609(1)
Section 609(1) provides that an application for rezoning shall be made by the owner of the land or a person authorized in writing by the owner. When Tyrone made its application on August 7, 1986, it did not own all of the land for which rezoning was requested.
Schwartz J. did not consider the option granted by the Finance Committee to purchase City-owned land to be legally enforceable. He rejected the City's contention that the option constituted the required authority to comply with s. 609(1). The City could have given the required written authority or could have had the Commissioner for the Environment bring a rezoning application. As to the streets, s. 495(3) of the Act confirms that title to the land on which a street is situated is vested in Her Majesty in right of the Province. Schwartz J. invoked the rule that a municipal corporation must meet strictly the statutory provisions of its enacting authority, citing principally Rogers, The Law of Canadian Municipal Corporations, 2nd ed., vol. 1, at p. 379, and R. ex rel Ellerby v. Winnipeg, [1930] 1 W.W.R. 914 (Man. C.A.). He concluded that "Tyrone's failure to provide the written authorization of the owners of the city lands and the portions of the streets to its rezoning application is fatal to the validity of the zoning bylaw"(p. 259).
Bias
Schwartz J. then turned to the allegation of bias. He referred to Wiswell v. Metropolitan Corporation of Greater Winnipeg, [1965] S.C.R. 512, as authority for the proposition that the "rules of natural justice apply to a rezoning application". He referred to Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, for the proposition that "the applicant need not prove bias but that a reasonable apprehension of bias is sufficient whether bias exists or not" (p. 260).
He noted that there "is no suggestion that Councillor Savoie did what he did for any reason other than what he believed to be the best interests of his community" and that there "is no suggestion that he had any personal interest in the success of Tyrone's application other than what he thought was his duty" (p. 260). He concluded (at pp. 260‑61):
In these circumstances he ought to have disqualified himself from the role of an impartial arbitrator and declared his interest in the proceedings.
The court does not say that Councillor Savoie did not have the right or duty to assist Tyrone with its application. However, it does say that a councillor may not be both the advocate for and the judge of the application.
Such conduct, if that is what, in the opinion of the Legislature, a councillor should be permitted to do must be specifically authorized by statute.
In the absence of special legislation, the weight of authority is that Councillor Savoie ought not to have been a party to the adjudication.
The community committee recommendation cannot stand and must be quashed.
Court of Appeal for Manitoba
Huband J.A. gave the reasons of the court, O'Sullivan and Lyon JJ.A. concerning.
Bias
Huband J.A. observed that the Councillor's participation in the initial discussions between the developer and the City was to be commended and encouraged as a normal part of his duties. Persons for or against a development proposal should feel free to discuss it with their Municipal Councillor, and the Councillor should be free to express an initial reaction without running the risk of being disqualified from subsequent participation in the decision‑making process.
Similarly he decided that there was no impropriety in Councillor Savoie appearing at the Finance Committee meeting to urge that the City make lands available so that a viable development might be considered.
In Huband J.A.'s opinion, Councillor Savoie's support for the sale of the property should not have excluded him from participating in the Community Committee. Councillor Savoie had expressed approval of the development by his participation before the Finance Committee, but the same could be said of Councillors Reese and Ducharme, who voted against the intended sale at Finance Committee. Huband J.A. believed that the Councillor was still capable of having an open mind concerning the merits of the development as a whole and as to the kinds of conditions which should be imposed upon the developer as a pre‑condition to rezoning.
Huband J.A. noted that the scheme of the City of Winnipeg Act, contemplates that a member of Council will be called upon to consider a matter at various committee stages leading up to an ultimate vote on City Council itself. The participation of a councillor, either as a voting member or as a delegate, in the deliberations of one committee could not constitute bias so as to preclude participation on other committees or in City Council.
Huband J.A. distinguished Wiswell, supra, on the ground that it was based on a denial of the opportunity to be heard due to failure to comply with statutory notice requirements. He cited with approval the decision of the New Brunswick Court of Appeal in Oley and Moffatt v. Fredericton (1984), 57 N.B.R. (2d) 361, which in turn relied on Re McGill and City of Brantford (1980), 111 D.L.R. (3d) 405 (Ont. Dist. Ct.). That case held that Council can hold preliminary views, but must be able to hear and consider the objections honestly and fairly. Justice Huband concluded, at p. 264:
The learned trial judge specifically found that Councillor Savoie acted in what he believed to be "the best interests of his community". Whether the electors of Old St. Boniface share in his opinion of the public weal is a question that can be answered by them at the next election. But it is not for the courts to prevent Councillor Savoie from taking an open leadership role, for that is his function as an elected representative responsible for the growth and development of the urban area. It is also his duty, of course, to be receptive to persuasion from those who hold contrary views when he subsequently considers and votes upon issues within committees and on Council itself. There is nothing in the record to suggest that Councillor Savoie functioned beyond the parameters of these lawful expectations.
Jurisdiction to Proceed Under s. 609(1)
Huband J.A. rejected the submission that the City did not own the title to the streets and therefore could not rezone the land or authorize Tyrone to apply for rezoning. Under the Act, the Province holds title to the streets, but the City has possession and control of the streets, including the right to close, sell or lease streets. The City, therefore, is equitable owner of the streets and the Province is a bare trustee. Huband J.A. concluded that there is no reason to involve the Province in a rezoning application involving City streets and that the City had the necessary authority to zone its lands subject to the requirement to act fairly and to give notice and an opportunity to be heard.
Huband J.A. noted that when Tyrone made the rezoning application, it did not have written authority to do so with respect to the City lands. Such authority was given, in Huband J.A.'s view, with the letter of September 17. This authorization came well before the rezoning application was first considered by the Community Committee. In these circumstances, Huband J.A. held that the recommendations of the Community Committee, and the action of City Council itself in ratifying the recommendations, were not to be set aside on the technicality of non‑authorization prior to September 17, 1986. In any event, the provisions of s. 609 were directory and not mandatory.
Plan Winnipeg
Section 599 of the Act provides that in exercising zoning authority the Council shall conform with Plan Winnipeg and the relevant Community Plan and Action Area Plan. Plan Winnipeg shows part of the lands in question as "older residential neighbourhood" and part as "regional park". The Action Area Plan shows the area as "future residential".
Huband J.A. rejected the contention that the rezoning by-law was void because it did not conform to Plan Winnipeg. He noted that Plan Winnipeg is a broad statement of planning policies and objectives. It was some five years between first and final reading. It consists of some 33 pages of text and a City map. It contains policy statements that "the City shall encourage, whenever possible, private sector investment in appropriate development in older residential neighbourhoods" and that the City shall endeavour to develop linear parks along the rivers. While compliance with a document such as Plan Winnipeg is difficult to determine, Huband J.A. was inclined to the view that the zoning application complied.
He added, however, that he did not think that the question was one intended to be answered by a court of law. The Act specifies that the "designated commissioner", together with the appropriate committee of Council, shall adjudicate whether a proposed zoning by-law conforms to the official plan. It was apparent in the case at bar that the commissioner was of the view that the proposed rezoning did comply.
Legislation
City of Winnipeg Act
1. . . .
(p. 2) "designated committee" means a committee designated by the council to carry out a specific responsibility but does not apply to a community committee.
...
Establishment of communities.
20. (1) The following communities are established in the city, for each of which there shall be a community committee of council, comprising the councillors who represent a ward within the community, and the number of wards are established for each community as follows:
Communities Number of wards
...
(e) St. Boniface - St. Vital 4 wards
...
Application for zoning by-law.
609. (1) An application for the enactment of a zoning by-law shall be made by the owner of the land, building or structure or by a person authorized in writing by him, and shall be in such form, and accompanied by such supporting material and the payment of such fee as the council deems advisable.
Referral of application or recommendation.
609. (2) When an application in the required form and with the required supporting material is received by the city, or when the designated commissioner has recommended the enactment of a zoning by-law by the city, the designated commissioner shall refer the application or recommendation to the community committee for the community in which the land referred to in the application is located if the land is in the city, and to the council of the municipality if it is located in the additional zone, and public notice shall be given,
(a)that on a day and at a time and place stated in the notice, a meeting will be held to receive representations from any person who wishes to make them in respect of the proposed zoning changes; and
(b)stating that a copy of the application and supporting material and a statement of the proposed zoning changes may be inspected at times and in a place or places specified in the notice.
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Meeting to hear representations.
610. (1) On the day and at the time and place stated in the notice referred to in section 609, a meeting shall be held to receive representations from any person who wishes to make them in respect of the application or the alternative zoning changes.
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Record of meeting to be kept.
611. (1) The community committee shall cause to be made a record of the meeting referred to in section 610 by any means the council considers appropriate.
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Report of community committee to be prepared.
612. (1) A report summarizing the representations and submissions made at the meeting and stating the community committee's recommendations with supporting reasons shall be prepared and forwarded by the committee clerk within thirty days following the completion of the meeting.
Report to be forwarded to designated committee.
612. (2) The community committee's report shall be forwarded within thirty days following the meeting to the designated committee and made available for inspection by any person who appeared at the meeting.
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Forwarding of report.
614.(1) After it receives the report of the community committee, or after the community committee is deemed to have made a report under subsection 612(3), the designated committee shall consider the report of the community committee and shall
(a)forward the report with the designated committee's recommendation thereon to council;
(b)forward a copy of the report with the designated committee's recommendations thereon by mail to all persons who submitted oral or written representations to or at the meeting referred to in subsection 610(1), which recommendations shall include the reasons for recommendations, if any, differing from those of the community committee;
(c)where a written representation was received at the meeting held by the community committee by mail or other means, without the appearance of the person making the written representation, mail a copy of the report to any single address set out thereon for the receipt of the report, if any, or to any single address given upon the filing of the representation, or in the absence of any single address to any one or more of the addresses set out thereon, and in the absence of any legible address, no report need by forwarded by mail or otherwise under this clause; and
(d)forward with the copies of the report forwarded or mailed under clause (b) or (c), notice of the date, time and place when and where the matter is expected to be considered by council under subsection 615(4).
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Reports and recommendations to executive policy committee.
615. (1.1) Notwithstanding subsection 614(1), council may direct that all reports and recommendations referred to in that subsection be referred to the executive policy committee to be dealt with in accordance with subsections 615(3) and 615(3.1).
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Recommendations to council.
615. (3) Where council has made a direction under subsection 615(1.1), the executive policy committee shall
(a)consider the report of the community committee, or, if the land affected is in the additional zone, the report of the council of the municipality and the designated committee's recommendations or report; and
(b)forward its recommendations thereon to the council.
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Disposition by council.
615. (4) Subject to section 616, the council shall consider the recommendation of the designated committee made under subsection 615(1) or of the executive policy committee made under subsection 615(3) and may
(a)accept, reject or modify the recommendation and may pass one or more zoning by-laws with respect thereto; or
(b)forward the proposed zoning change to The Municipal Board for its report and recommendations; or
(c)refer the recommendation to a committee for a further meeting or consideration upon such terms as the council shall establish.
The Issues
The issues in this appeal are as follows:
1. Bias: Was Councillor Savoie disqualified by bias from participating in the proceedings of the Community Committee?
2. Ownership: Did the application for zoning comply with s. 609(1) of the Act?
3. Plan Winnipeg: Did the zoning by-law fail to conform to Plan Winnipeg?
4. Bad Faith and Expectation of Consultation: Did the Community Committee act in bad faith or in violation of a reasonable expectation of consultation?
1. Bias
Natural Justice: Application to Local Government Bodies
The rules which require a tribunal to maintain an open mind and to be free of bias, actual or perceived, are part of the audi alteram partem principle which applies to decision-makers. The appellant contends that it applies in its full vigour to members of a municipal council when deciding whether to vote in favour of a by-law which in this case involves zoning. It relies, principally, on Wiswell v. Metropolitan Corporation of Greater Winnipeg, supra, in support of this