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.
...
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.
...
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.
...
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.
...
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).
...
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).
...
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.
. . .
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 proposition.
In that case, Wiswell and the Crescentwood Homeowners Association sought a declaration that an amending zoning by-law passed by Metro Council was invalid. Municipal resolutions prescribing procedures for amendments required notices of hearings to be published in two newspapers and on the premises which were the subject matter of the amendment. No notices were posted on the premises. The Homeowners Association, which consistently opposed attempts to zone the area beyond single family residence density, acquired no knowledge of the hearing and never had the opportunity to make representations. Written notice was sent to the applicants for rezoning, but not to the Homeowners Association, although the latter's opposition was known to Metro Council.
The majority judgment determined that the by-law was invalid by reason of the absence of notice which deprived the appellants of the opportunity to be heard. In coming to this conclusion Hall J., speaking for the majority, characterized the proceeding as quasi-judicial rather than legislative. The consequence was that Metro Council was bound in law to act fairly and impartially, in good faith, listening to both sides. The case did not deal with the issue of bias or pre-judgment which is squarely raised in these appeals. Nevertheless, the appellant argues that the proceedings before the Community Committee were quasi-judicial in nature and that conduct of members of Council must not give rise to a reasonable apprehension of bias. It is therefore necessary to consider whether Wiswell supports this conclusion.
Wiswell must be read in light of comparatively recent changes that have occurred in applying the rules of natural justice. The content of the rules of natural justice and procedural fairness were formerly determined according to the classification of the functions of the tribunal or other public body or official. This is no longer the case and the content of these rules is based on a number of factors including the terms of the statute pursuant to which the body operates, the nature of the particular function of which it is seized and the type of decision it is called upon to make. This change in approach was summarized in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879. I stated (at pp. 895‑96):
Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of the case, the statutory provisions and the nature of the matter to be decided. The distinction between them therefore becomes blurred as one approaches the lower end of the scale of judicial or quasi-judicial tribunals and the high end of the scale with respect to administrative or executive tribunals. Accordingly, the content of the rules to be followed by a tribunal is now not determined by attempting to classify them as judicial, quasi-judicial, administrative or executive. Instead, the court decides the content of these rules by reference to all the circumstances under which the tribunal operates. [Emphasis added.]
It is therefore necessary to examine all the factors under which a committee of Council operates. I start with the most significant fact that the statute provides for a hearing before a committee of members of Council. There is nothing in the legislation to indicate that they are to act in a capacity other than that of municipal councillors. In this regard I must assume that the Legislature was aware that in this capacity the members of Council will have fought an election in which the matter upon which they are called upon to decide may have been debated and on which the would‑be councillors may have taken a stand some pro and some con. Indeed, the election of a particular councillor may have depended on the position taken. Furthermore, with respect to the enactment of zoning by-laws and amendments to zoning by-laws, it is well known that numerous committees are involved at which members of Council are expected to vote before being called upon to hear representations and decide the question. Moreover, in the preparation and processing of a development, a municipal councillor is often involved in assisting parties supporting and opposing the development with respect to their presentations. In the course of this process, a councillor can and often does take a stand either for or against the development. This degree of prejudgment would run afoul of the ordinary rule which disqualifies a decision-maker on the basis of a reasonable apprehension of bias. Accordingly, it could not have been intended by the Legislature that this rule 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.
The nature and functions of a municipal body and their influence on the rules of natural justice have been examined in a number of cases which I have found of assistance.
In Re Cadillac Development Corp. Ltd. and City of Toronto (1973), 1 O.R. (2d) 20, the Council was called upon to consider the repeal of a land-use by-law. A majority of Council had already made up their minds and had said so. In dismissing an application to quash the by-law on this ground, Henry J. stated, at p. 43:
In respect of a quasi-judicial tribunal in the fullest sense of that concept required to adhere to principles of natural justice this would amount to an allegation of bias such as might be ground for quashing the decision. But regard must be had to the nature of the body reviewing the matter. A municipal council is an elected body having a legislative function within a limited and delegated jurisdiction. Under the democratic process the elected representatives are expected to form views as to matters of public policy affecting the municipality. Indeed, they will have been elected in order to give effect to public views as to important policies to be effected in the community.... They are not Judges, but legislators from whom the ultimate recourse is to the electorate. Once having given notice and fairly heard the objections, the Council is of course free to decide as it sees fit in the public interest.
Henry J. had further occasion to elaborate on the subject in Re McGill and City of Brantford, supra. It involved a motion to quash a by-law to close certain city streets on the grounds of bias. At the hearing, objectors took the position that the Council had already committed itself to the street closing and that it was therefore unlikely that it could act impartially and in a judicial manner.
After describing the legislative and political nature of a municipal council's function, Henry J. stated, at p. 41:
On this process, which is simply our concept of democracy in action, is imposed the requirement to hold a hearing before roads are closed. What then is the character of such a hearing? Its purpose is to ensure that the Council, before exercising its power to enact a law closing specific roads, must provide a forum in which those whose private rights are adversely affected may assert their objections. It fortifies by law the right every ratepayer has to write to his alderman, organize and address a meeting or conduct a peaceable demonstration. By statute, he is to be heard, and that by the whole Council, who must provide the opportunity to do so.
In his view it was only when Council had made an irrevocable decision on the matter that a disqualifying bias was made out. He continued, at p. 416:
So if it could be shown, the onus being on the objectors to do so, that the Council before the hearing had irrevocably decided to pass the by-law to close the roads, that would reflect disabling bias. No hearing in the true sense of that concept was or could be held. As such a hearing is a condition precedent, its absence would be fatal to the exercise of the legislative power.
Oley and Moffatt v. Fredericton, supra, a case in the New Brunswick Court of Appeal, applied the test in Re McGill, supra. The court was concerned with s. 68 of the Community Planning Act, R.S.N.B. 1973, c. C-12, which required City Council to hear and consider the objections to a proposed by-law. The Council passed a by-law amending land use designations to permit the installation of a sewage lagoon. The by-law was attacked on the ground that members of Council had made statements committing themselves to the project and on the further ground that Council had entered into an agreement with the province in respect of financing the project.
Stratton C.J.N.B. summed up as follows, at p. 380:
In such circumstances, I would adopt the statement of Henry, J., in McGill v. Corporation of the City of Brantford (1980), 12 M.P.L.R. 24, at p. 35:
"It must be assumed that the Legislature knew the functions, and the mode of developing such a project from its inception to the advanced stages, and nonetheless designated the council as the body to hold the hearing. In these circumstances all that can be required of the council is to put aside their tentative views individually and collectively, hear the objections, consider them honestly and fairly, see if they can be accommodated and then make the final decision. No more and no less can be expected of them."
As I read s. 68 of the Community Planning Act it requires a municipal council to honestly and fairly hear and consider any objections to land use change even though individual councillors may previously have expressed opinions on the matter. In the present case, there is no convincing evidence either that the council did not honestly consider the objections of the citizens opposed to the enactment of Bylaw 813 or that it had made an irrevocable decision to approve the Bylaw before hearing the objectors.
The role of a municipal councillor is quite different from that of the Chairman of the National Energy Board which was considered in Committee for Justice and Liberty v. National Energy Board, supra. In that case, a majority of our Court concluded that the Chairman of the Board was disqualified from presiding over an application for a certificate of public convenience and necessity in connection with the McKenzie Valley Pipeline pursuant to s. 44 of the National Energy Board Act, R.S.C. 1970, c. N-6, by reason of his participation in the work of a Study Group made up of parties interested in the project. Laskin C.J. on behalf of the majority stressed that the Chairman had participated in discussions material to the s. 44 application with members of the group which included the applicant for the licence. In this capacity he had assisted in the preparation of the s. 44 application. Moreover, the Crown Corporation of which he was the president contributed funds to the Study Group. In short, his relationship with parties to the application had been such that he virtually had a personal interest in the s. 44 application and its outcome which created a reasonable apprehension of bias.
The members of the National Energy Board do not have political or legislative duties. Prejudgment of issues is not inherent in the nature of their extra-adjudicative functions. While it was argued that the Chairman was required to deal, in the course of his duties, with matters of supply and the requirements for natural gas and that these matters would have some relevance to the s. 44 application, Laskin C.J. discounted them as merely preparing the Chairman for the main hearing.
I would distinguish between a case of partiality by reason of pre-judgment on the one hand and by reason of personal interest on the other. It is apparent from the facts of this case, for example, that some degree of pre-judgment is inherent in the role of a councillor. That is not the case in respect of interest. There is nothing inherent in the hybrid functions, political, legislative or otherwise, of municipal councillors 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 a personal or other interest. It is not part of the job description that municipal councillors be personally interested in matters that come before them beyond the interest that they have in common with the other citizens in the municipality. 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 the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest. See Re Blustein and Borough of North York, [1967] 1 O.R. 604 (H.C.); Re Moll and Fisher (1979), 23 O.R. (2d) 609 (Div. Ct.); Committee for Justice and Liberty v. National Energy Board, supra; and Valente v. The Queen, [1985] 2 S.C.R. 673.
Statutory provisions in various provincial Municipal Acts tend to parallel the common law but typically provide a definition of the kind of interest which will give rise to a conflict of interest. See Blustein and Moll, supra. In Manitoba, the relevant provisions are found in the Municipal Council Conflict of Interest Act, R.S.M. 1987, c. 255, ss. 4, 5 and 8. No reference is made to these sections in this appeal nor is there any suggestion that they have been contravened.
In my opinion, the test that 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 is one which requires that the objectors or supporters be heard by members of Council who are capable of being persuaded. The Legislature could not have intended to have a hearing before a body who has already made a decision which is irreversible. The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of Council while they may very well 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, which cannot be dislodged. In this regard it is important to keep in mind that support in favour of a measure before a committee and a vote in favour will not constitute disqualifying bias in the absence of some indication that the position taken is incapable of change. The contrary conclusion would result in the disqualification of a majority of Council in respect of all matters that are decided at public meetings at which objectors are entitled to be heard.
Application to this Appeal
The disqualifying conduct relied on in this case consists of Councillor Savoie appearing before the Finance Committee and speaking on behalf of the developer. This in itself would not necessarily lead to the conclusion that his mind could not be changed. It is, however, suggested that this places him in the role of advocate for the developer thus giving him an interest in the issue which goes beyond the public interest. This submission would have substance if there was something to suggest that the Councillor's support was motivated by some relationship with or interest in the developer rather than in the development. The evidence shows, however, that he had previously supported the development on its merits and there is no evidence that suggests any relationship with the developer. Furthermore, the judge of first instance found as a fact that the Councillor had no such interest. In his reasons Schwartz J. stated, at p. 260:
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.
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.
Schwartz J. did refer to the fact that Councillor Savoie acted as an advocate for the development but in light of the above finding this reference must be taken to mean nothing more than that he argued in favour of it. It was error, therefore, for the learned judge to apply the reasonable apprehension of bias test. This test would have been appropriate if it had been found that the Councillor had a personal interest in the development, either pecuniary or by reason of a relationship with the developer. In such circumstances, the test is that which applies to all public officials: Would a reasonably well-informed person consider that the interest might have an influence on the exercise of the official's public duty? If that duty is to hear and decide, the test is expressed in terms of a reasonable apprehension of bias. As I have stated above, there is nothing arising from the political and legislative nature of a councillor's duties that requires a relaxation of this test. The situation is quite distinct from a prejudgment case. In this case no personal interest exists or was found and it is purely a prejudgment case. Councillor Savoie had not prejudged the case to the extent that he was disqualified on the basis of the principles outlined above. The Court of Appeal was right, therefore, in reversing the judge of first instance on this point. The appeal on this ground must therefore fail.
2. Ownership
An argument advanced by the appellants is that the developer did not have the statutory right to apply for rezoning because part of the lands was owned by the City and another part consisted of streets that were in the process of being closed. Section 609(1) of the Act provides that the application shall be made by the owner or by a person authorized in writing by him. It is submitted by the appellant that when the application was filed on August 7, 1986, at that time the City had not authorized the developer to proceed with the application in respect of its lands. As for the street lands, it is submitted that the owner is the Province and no authorization was received from it.
With respect to the lands owned by the City, I agree with Huband J.A. that any defect in the application as originally filed was remedied before it was processed. It would be unduly technical to require that the application be complete in every respect on the day that it is filed. I adopt the following statement from the reasons of Huband J.A. as determinative of the matter (at p. 265):
On September 17, 1986, the Director of Lands, Surveys and Real Estate wrote to the solicitor for Tyrone in these 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."
It is obvious that Tyrone had received the necessary authorization to seek a rezoning of city lands and streets, as well as its own lands, well before the rezoning application was first considered by the St. Boniface-St. Vital Community Committee. In my opinion the recommendations of the Community Committee, and the action of City Council itself in ratifying the recommendations, are not to be set aside on the technicality of non-authorization prior to September 17th.
With respect to the street lands, I agree with Huband J.A. that the City had a sufficient interest to rezone these lands notwithstanding that the Province technically was the owner. Furthermore, I agree with him that it would make little sense to require the City to apply to itself for rezoning subject always to adequate notice being given to persons affected and an opportunity provided to be heard.
3. Plan Winnipeg
Non-conformity
A further argument raised by the Residents Association is that the rezoning by-law is invalid for failure to comply with the development plan for the greater urban area which came into effect on April 9, 1986, Plan Winnipeg. Section 599 of the City of Winnipeg Act specifies that in exercising its zoning power "the council shall conform to the Greater Winnipeg development plan, and any relevant provision in a community plan and action area plan". Furthermore, under the Act (s. 597.1(1)):
... each action area plan shall conform with the community plan, a component of which the action area plan implements; and each community plan shall conform with the Greater Winnipeg development plan.
It is clear that the Act establishes a complex scheme of nested plans of increasing specificity. That these plans are not intended to alter zoning, but are intended to guide future development and planning, is made clear in the definition of the Greater Winnipeg development plan (Plan Winnipeg) (s. 569(f)):
... a statement of the city's policy and general proposals in respect of the development or use of the land in the city and the additional zone, set out in texts, maps or illustrations, and measures for the improvement of the physical, social and economic environment and transportation;
It is contended by the appellant that the proposed zoning does not conform to Plan Winnipeg. There was no community plan for the area. An earlier district plan had been adopted as the action area plan. In this plan the land was designated "future residential" though zoning heights and densities were left undetermined. In the map accompanying the text of Plan Winnipeg, the land in question was designated partly "regional park" with the balance designated "older residential neighbourhood".
Is there non-conformity with Plan Winnipeg? As in the instant case, it may frequently be difficult to determine if a proposed rezoning does not conform with a general statement of policies and principles. The Act provides (s. 609(2.1)):
Where the designated commissioner is of the opinion that the zoning by-law applied for would not conform to The Greater Winnipeg Development Plan, a relevant community plan or an action area plan, he shall refer the application to the designated committee and if that committee is of the same opinion the application shall not be referred to the community committee ... unless and until the council has given 1st reading to a by-law to amend the plan to remove that non-conformity. [Emphasis added.]
The development is residential, though it certainly is not single‑family dwellings. This is consistent with the area plan. However, though it conforms in the main with Plan Winnipeg, the part of the project designated parkland in that plan is the source of the alleged non-conformity. As mentioned in Plan Winnipeg, the proposed development would retain a strip, albeit reduced in width, of park beside the river. One street providing access to the river will be closed; it is not clear whether pedestrian access to the river will be prevented. In addition, the development is definitely in conformity with a policy of encouraging private sector investment in older residential neighbourhoods, a goal of Plan Winnipeg.
It is clear from the facts of this case that the designated commissioner was of the opinion that the proposed rezoning did conform to Plan Winnipeg. Huband J.A. came to the same conclusion on the basis that the proposed rezoning complied with the spirit of the text and map "in terms of what our civic elected representatives hope for the future for that particular area".
The question of conformity to an official plan is primarily a planning decision which is based on fact and policy. The opinion of the designated commissioner while not immune from judicial review should not be disturbed by an appellate court simply because it disagrees with the opinion in respect of policy or fact. The commissioner is in a much better position to assess whether a new development conforms to the planning policy of the municipality than is the court. Huband J.A. was not prepared to disagree with the commissioner's opinion. Indeed, he confirmed the opinion. In light of the above, this Court would not be justified in substituting its view of fact and policy except in the most exceptional circumstances.
4. Bad Faith and Expectation of Consultation
The appellant contends that in the course of reviewing the area plan which occurred during the period 1979-85, the Community Committee indicated to members of the appellant that they would be involved in the formation of a new area plan prior to any redevelopment. The developer Tyrone was not involved in these discussions.
The appellant relies on the affidavits of two City Councilors, Evelyn Reese and Al Ducharme. The affidavits are textually identical on this point. They read:
8. During my tenure as Councillor, the St. Boniface-St. Vital Community Committee had repeatedly requested that Council develop an overall plan for the North St. Boniface area. Councillor Savoie was a member of the Community Committee during this time. Furthermore, the Community Committee had indicated to the residents that they would be involved in the formation of a plan for the area.
9. I was, therefore, surprised to hear Councillor Savoie's presentation in support of the development prior to a plan being formulated for the area as a whole. Since it was my understanding, from the conduct of the Community Committee during the preceding years, that no development should be undertaken in the area without an area plan first being approved.
Neither Schwartz J. nor the Court of Appeal dealt with this issue and we do not have the benefit of a finding as to whether this amounted to an undertaking. In these circumstances, I would hesitate to find that the evidence establishes a binding undertaking. But, assuming the evidence amounts to an undertaking, I do not see how it could avail against the statutory right of Tyrone who was not a party to the undertaking to apply for a rezoning pursuant to s. 609 of the Act. Furthermore, members of Council could not enter into a private arrangement imposing a general moratorium on applications for rezoning in an area of the municipality. This kind of land-use freeze would ordinarily require statutory authority or at the very least a resolution of the council of the municipality.
It appears, however, that at bottom the appellant's submission is that the conduct of the Committee created a legitimate expectation of consultation. The appellant cites the decision of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All E.R. 935. The principle is also discussed in the leading cases of Attorney General of Hong Kong v. Ng Yuen Shiu, [1983] 2 All E.R. 346 (P.C.), and R. v. Hull Prison Board of Visitors, ex parte St. Germain, [1979] 1 All E.R. 701 (C.A.). It is also referred to in the following Canadian cases: 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 and Re Bruhn-Mou and College of Dental Surgeons of British Columbia (1975), 59 D.L.R. (3d) 152.
The principle developed in these cases is simply an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity. The court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation.
The planning and zoning process is an elaborate structure designed to enable all those affected not only to be consulted but to be heard. The appellant availed itself of this process by making representations before the Community Committee. Even if the conduct of this Committee raised expectations on the part of the appellant, I am of the opinion that this would not justify this Court in mounting onto the elaborate statutory scheme yet another process of consultation.
Disposition
The appeal is dismissed with costs.
//Lamer C.J.//
The following are the reasons delivered by
LAMER C.J. -‑ I have concurred in the reasons of Justice La Forest in Save Richmond Farmland Society v. Richmond (Township), [1990] 3 S.C.R. 000 (released concurrently today). In applying his test to the facts of this case, I am of the view that the appeal should be dismissed.
On the issue of conformity with Plan Winnipeg, I am in agreement with the reasons of Justice Sopinka. Accordingly, I would dispose of this appeal in the manner set out by Sopinka J.
//La Forest J.//
The reasons of La Forest, L'Heureux‑Dubé and Cory JJ. were delivered by
LA FOREST J. (dissenting) -‑ Three issues are raised in this appeal:
a) In a contested rezoning under ss. 609-15 of the City of Winnipeg Act, S.M. 1971, c. 105, do the rules of natural justice or fairness apply so as to preclude participation by a councillor which would raise a reasonable apprehension of bias?
b) Did the City show bad faith in proceeding as it did?
c) Was the City's proposed rezoning in conformity with Plan Winnipeg, and, if not, was this nonconformity subject to judicial review?
My colleague, Justice Sopinka, has set out the facts, the judicial history and the applicable legislation. In my view, this appeal can be disposed of on the basis of the third issue, and I shall, therefore, confine my remarks to that issue.
Plan Winnipeg
The Residents Association attacks the rezoning by-law on the ground that Council exceeded its zoning power by failing to conform with Plan Winnipeg. It points to s. 599 of the City of Winnipeg Act, which delimits the zoning power of Council as follows:
599. In exercising the power delegated by section 598, the council shall conform to the Greater Winnipeg development plan, and any relevant provision in a community plan and action area plan. [Emphasis added.]
Plan Winnipeg designated the area north of the CN Highline as residential and parkland. Part of the site proposed for the Tyrone development is designated for "regional parks" on the Plan's policy area map. By contrast, the developer's site plan indicates one condominium tower situated almost wholly on the designated park area. This, the Association argues, constitutes a violation of s. 599 of the Act, which renders the by-law void for non-compliance with a provision that constitutes a prerequisite to its passing.
The City, in responding to the argument that a condominium does not conform to a park, rests its submission on the notion that the by-law did indeed conform to the Plan because a strip park was retained for public access. The City also suggests that it is appropriate to interpret the text and map of the Plan in a flexible manner, since the Plan is a policy document containing only general proposals.
The Court of Appeal agreed with the City, holding that the by-law need only conform to the spirit of the text and map. The Court also held that the matter of Council's compliance with Plan Winnipeg in promulgating the by-law is not open to judicial review, given the duty of the designated commissioner to screen for non-compliance.
This issue centres on what is meant by the requirement in s. 599 that the City "conform" to Plan Winnipeg. Does it mean that the City must follow the exact scheme set out in the policy area map, or should "conform" be interpreted in a more flexible manner, to permit Council to enact zoning by-laws which may not represent an exact fit with the map, but comply with the general direction of the articulated policies? In order to resolve this issue, it is necessary to first understand the function of Plan Winnipeg in the planning process.
The Nature of the Plan
Section 569(f) of the Act defines Plan Winnipeg as follows:
569. . . .
(f)"Greater Winnipeg development plan" means a statement of the city's policy and general proposals in respect of the development or use of the land in the city and the additional zone, set out in texts, maps or illustrations, and measures for the improvement of the physical, social and economic environment and transportation;
Plan Winnipeg was adopted as a by-law of the City in April 1986. The Plan is the instrument by which overall planning for the entire territory of the city is instituted. It is a general, long-term policy document which serves as a framework in which specific policies and zoning by-laws are formulated. It may be viewed as the very foundation of all planning. Indeed, master plans like Plan Winnipeg are characterized by Rogers in Canadian Law of Planning and Zoning (1990), at pp. 68-69, as "quasi-constitutional documents":
In some respects a community plan operates as kind of a constitutional document controlling the future development of the municipality. As a constitution, it embodies limitations on the local authority in both its legislative and administrative spheres and is less subject to change than ordinary laws.
Although the author was speaking in general terms, his insights are applicable to Plan Winnipeg. By section 599 of the Act, the zoning power of council is constrained by the plan, although the extent of the constraint may not be entirely clear. In addition, the procedure for amendment to the plan, found in ss. 574-78 of the Act, is more onerous than the process for the amendment of a zoning by-law, in that it involves consultation with community committees, requires the entire council, rather than simply the executive policy committee, to deliberate on the plan by-law, and contains more stringent public notice provisions. Moreover, council is required to obtain the written approval of the minister before it can finally pass the plan by-law.
There is a temptation to view the plan as a document too policy oriented to command any legal status. Such an approach, however, misapprehends the true nature of the plan. Although the policies are articulated in relatively general terms, this does not detract from the legal force of the plan. The specific legal effect of the plan, pursuant to s. 599 of the Act, is to set the parameters of the zoning power of council. If council adopts a by-law which does not conform with the plan, it has overstepped its statutory authority; see Christie v. City of Winnipeg (1981), 16 M.P.L.R. 128 (Man. Q.B.).
At the same time, I recognize that the Plan does not have the specificity of a zoning by-law, and must be approached accordingly. The distinction between master plans and zoning by-laws is explained by Rogers, supra, at p. 69:
Because plans are expressed in generalities, it would not be practical to ascribe to them the same effect that a statute or by-law has. Something more is usually needed to translate the policies set out in broad terms in plans into legislative action. One of the essential requisites of a law is that it must be definite and certain and this is lacking in a planning scheme. Courts may be inclined to give a fairly liberal interpretation to statements of policy and prescribed land uses contained in a plan.
It appears then, that as a "quasi-constitutional" document, the Plan should be interpreted with an appropriate measure of flexibility, which reflects a balance between its general, long-term nature, and its statutorily mandated function as the foundation of the planning process.
It remains to apply these general principles to Plan Winnipeg and s. 599 of the Act.
Does the By-law Conform With the Plan?
Huband J.A. adopted the following approach to the issue of whether the by-law is in conformity with Plan Winnipeg, at p. 268:
It is no easy thing to decide whether a particular zoning "conforms" with a long-term planning document which consists of a mixture of policy statements, long-term objectives, general proposals and land designation map. I think it must be recognized that the new zoning need not fit the designation of that land on the map. What is important is that the zoning conform to the spirit of the text and map in terms of what our civic elected representatives hope for the future for that particular area.
With respect, I find that Huband J.A.'s approach accommodates a more tenuous relationship between the zoning by-law and the Plan than was contemplated by the Legislature.
The development site is designated "regional park" on the Plan Winnipeg policy map. Surely, there is no ambiguity here which requires recourse to the "spirit" of the Plan; if it was intended that the area be open to residential development, the map would have been marked accordingly. I find it difficult to understand what Huband J.A. meant to say when he held that "it must be recognized that the new zoning need not fit the designation of that land on the map". In support of such a proposition, the City submits that the text of the Plan, specifically policy 80(1), a policy of establishing a linear river-bank park system, provides sufficient support for the by-law. There is nothing in s. 569(f) of the Act, however, that confers preeminence to the text of the Plan, as opposed to the map. On the contrary, as noted by Wilson J. in Christie, supra, at p. 135, maps or illustrations are by s. 569(f) of the Act an integral part of the Plan.
Furthermore, I doubt that it was ever intended that the linear park system policy would preclude the establishment of larger parks adjacent to the river. It seems to me that the linear park policy complements rather than contradicts other park policies in the plan, including policy 75(1), which provides that the City shall develop additional parkland in older neighbourhoods, in accordance with specific neighbourhood requirements, and policy 78(1), which provides that the City shall establish a system of regional parks, to offset existing deficiencies and meet projected needs.
I would also note that policy 6(1), relied on by Huband J.A., does not really provide support for the proposed development. That policy is stated in the Plan as follows:
The City shall encourage, wherever possible, private sector investment in appropriate development in older residential neighbourhoods. [Emphasis added.]
To my mind, a development that conflicts with policies articulated in both the map and text of the Plan cannot be considered appropriate development within the meaning of policy 6(1).
In determining whether the zoning by-law conforms with the Plan, the purpose of the Plan in the context of the planning process must not be forgotten. The whole point of establishing a master plan is precisely to place constraints on the future character of development in the City, in accordance with long-term objectives. In order to ensure that Council does not exercise its powers in such a way as to inhibit the ultimate implementation of these objectives, the Act mandates that zoning must fit the designation of lands outlined on the Plan. Otherwise, with the effluxion of time, the City could change in a way wholly in conflict with the carefully designed and publicly vetted provisions of the Plan.
As I see it, the regional park designation is clear from the Plan, and the condominium development represents a derogation from that Plan. The state of affairs here can bear no other interpretation. Thus, if the City wishes to permit development that conflicts with the policy of the Plan, it must first seek amendment to the Plan itself. The procedures for amendment to the Plan, including the provision for public participation, are an important component of the system of checks and balances that characterizes the planning process. This system provides for public participation in all stages of policy development and implementation, from the adoption of a master plan to the enactment of zoning by-laws. It is not open to Council to circumvent any part of this public process, a process established by its own Act of incorporation, by the simple passage of a zoning by-law.
The Appropriateness of Judicial Review
A subsidiary issue is raised as a result of the Court of Appeal's decision, which also held that it was never intended that a court of law consider whether a proposal complies with Plan Winnipeg. In effect the Court of Appeal held that the matter was not open to judicial review.
The Act provides for the "designated commissioner" to determine whether a zoning by-law conforms to the Plan. The proposal is then forwarded to another committee of Council for a consideration of the same issue. While normally I am prepared to accord some deference to those empowered under the Act to consider whether a by-law conforms to the Plan, an issue not lacking in difficulty and where local knowledge is of great assistance, I do not think judicial review is inappropriate in this case.
First, the designated commissioner is not independent of Council, but is appointed and may be dismissed by Council pursuant to s. 2(5) of the Act. It should be noted, as well, that there is no privative clause. Thus, it is open to the courts to overturn a decision which is legally incorrect, rather than patently unreasonable. It is also important to realize that we are not dealing here with a subtle issue which requires great planning expertise and direct knowledge of local land use dynamics. We are faced with the prospect of a seven-storey condominium tower which is to be built on an area clearly designated on the Plan policy map as parkland. With all deference, I am unable to understand how this can be said to conform with the Plan. To so hold would be to set at nought the carefully crafted provisions devised by the Legislature to ensure the participation of citizens in planning decisions affecting the character of the community in which they live.
I conclude that the City was precluded from adopting the zoning by-law in question, and must look to amending the Plan.
Disposition
For these reasons, I would allow the appeal and restore the decision of Schwartz J., with costs throughout.
Appeal dismissed with costs, LA FOREST, L'HEUREUX-DUBÉ and CORY JJ. dissenting.
Solicitors for the appellant: Public Interest Law Centre, Winnipeg.
Solicitors for the respondents: Taylor, McCaffrey, Chapman, Winnipeg.