CITY OF ST. JOHN’S APPELLANT AND: SEANIC CANADA INC. RESPONDENT, 2016 NLCA 42

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation : St. John’s (City) v. Seanic Canada Inc. , 2016 NLCA 42 Date : August 15, 2016 Docket : 201401H0055 BETWEEN: CITY OF ST. JOHN’S APPELLANT AND: SEANIC CANADA INC. RESPONDENT Coram: Green C.J.N.L., Rowe and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201201G5921 (2014 NLTD(G) 7) Appeal Heard: March 9, 2015 and April 10, 2015 Judgment Rendered: August 15, 2016 Reasons for Judgment by Rowe J.A. Concurred in by Green C.J.N.L. and Harrington J.A. Counsel for the Appellant: Ian F.

Kelly Q.C. Counsel for the Respondent: Michael J. Crosbie Q.C. Rowe J.A.: INTRODUCTION [ 1 ] This appeal engages the principles of procedural fairness that are applicable to decision-making by a municipal council relating to a land-development proposal that would have involved an amendment to the municipality’s zoning by-laws.

[ 2 ] Seanic Canada Inc. (“Seanic”) sought to develop a parcel of land within the City of St. John’s for a seniors’ assisted living residence facility. The existing zoning did not permit that type of proposed development. Its application for a development permit was rejected by City officials. Seanic then applied to change the zoning designation to accommodate the development. Its proposed amendment was consistent with the City municipal plan. City officials supported the change and the ultimate development and, according to Seanic, encouraged it to push the proposal forward.

As a result, Seanic expended money on, amongst other things, a land use assessment report. [ 3 ] Residents in the area of the proposed development who opposed the development opposed the zoning change. They expressed concerns about traffic, view obstruction and potential reduction in property values, amongst other things. At a regular meeting, Council decided that Seanic’s application for rezoning be referred to a public meeting chaired by a member of Council. [ 4 ] Representatives of Seanic attended the public meeting and made a presentation explaining its proposal.

A number of residents spoke against the rezoning and the development. Several municipal councillors were present and also expressed views. Councillor Wally Collins, whose ward included the land in question, spoke strongly against the proposal. A subsequent vote by Council denied Seanic’s application to amend the zoning by-law. Seanic sought judicial review of Council’s decision. FACTS [ 5 ] In 2005, Seanic applied to City Council for rezoning.

As a result of negative public response, Seanic asked City Council to defer consideration of the rezoning application. [ 6 ] In 2007, Seanic again applied to City Council for rezoning. In due course, a public meeting was scheduled concerning the project. [ 7 ] At that meeting on October 26, 2010, a number of citizens indicated their opposition to the project, based on obstruction of views, traffic issues and possible reduction in nearby property values. [ 8 ] Seanic requested that Council defer a vote on its rezoning application.

Council decided to proceed with its decision. [ 9 ] On November 1, 2010, City Council rejected the rezoning application. [ 10 ] Seanic sought judicial review of City Council’s rejection of the rezoning. A judge of the Trial Division quashed City Council’s decision and remitted the matter to it. The judge did so on the basis that Council had not provided reasons to Seanic for its decision to proceed with the vote, rather than defer it, as Seanic had requested.

That decision by the Trial Division judge is not the subject of this appeal. [ 11 ] City Council convened another public meeting on February 23, 2012; again, nearby residents voiced opposition to the project. At its March 12, 2012 meeting, Council considered Seanic’s rezoning application. [ 12 ] Councillor Collins moved that Seanic’s application for rezoning be rejected. The transcript of the debate on that motion is set out in the annex to this decision. [ 13 ] Councillors Collins, O’Leary, Hickman, Brennan, Hanlon and Duff voted for the motion to reject the rezoning.

Councillors Tilley, Galgay and Hann voted against the motion (they favoured the rezoning). The motion to reject the rezoning thus carried by six to three. [ 14 ] Seanic again sought judicial review. It said that Mayor O’Keefe was biased, as he was actively involved with area residents who opposed the project.

Seanic also said that Mayor O’Keefe was in a conflict of interest as his daughter’s parents-in-law lived close to the project property. [ 15 ] As well, Seanic said that Councillor Collins (who was the ward councillor for the area) was biased against the project, as he voiced opposition to it from an early stage. [ 16 ] Further, Seanic said that Councillor Collins had prejudged the issue when it came before Council for debate and a vote.

This was based, in particular, on statements he made at the February 23, 2012 public meeting, the minutes of which read in part: Councillor Collins also spoke against the proposed development and assured residents that he will be voting against the Application when it is referred to council based upon the information and feedback he was receiving from residents.

The transcript of the meeting indicates that Councillor Collins also said that he was “dead set against” the project. [ 17 ] In cross-examination during the judicial review hearing, Councillor Collins said that at the October 26, 2010 public meeting he had assured his constituents that he would be voting against the project. [ 18 ] Finally, Seanic said that City Council failed to provide adequate reasons for its March 12, 2012 decision. [ 19 ] By way of relief, Seanic sought: (1) an order of the Court granting the rezoning; and (2) solicitor-client costs. [ 20 ] In his decision (2014 NLTD(G) 7), a judge of the Trial Division held:

(1) Mayor O’Keefe was not in a conflict of interest;

(2) Councillor Collins did not show bias against the rezoning application; (3) however, Councillor Collins did prejudge the issue before it was debated and voted on by City Council on March 12, 2012; and (4) the debate by City Council on the rezoning application at the March 12, 2012 meeting constituted sufficient reasons for Council’s decision. [ 21 ] Based on the foregoing, the Trial Division judge ordered: (1) the March 12, 2012 decision to reject the rezoning application be quashed and the matter be remitted to Council for reconsideration; and

(2) Seanic receive 50% of its party-and-party costs (column 3), as it had succeeded in part. [ 22 ] As well, while it was not part of the order, the Trial Division judge offered a “suggestion” that if Councillor Collins were prepared to confirm at a meeting of Council that he did “not have a closed mind” on the rezoning application, then Councillor Collins could participate in Council’s decision on the rezoning. Otherwise, Councillor Collins should “[recuse] himself from further deliberations and should [refrain] from voting”. [ 23 ] City Council appealed the foregoing decision.

It seeks to have the quashing of Council’s March 12, 2012 set aside; it also seeks costs. [ 24 ] Seanic has cross-appealed seeking the relief that it sought before the Trial Division, as well as solicitor-client costs. ISSUES

(1) What is the standard of review applicable to the determinations by the Trial Division judge that are in issue in the appeal and cross- appeal?

(2) What was the nature of Council’s decision on rezoning?

(3) In its debate, did Council have regard to factors not relevant to “planning decisions”?

(4) Was Council required to give reasons for its decision beyond the debate preceding the vote on rezoning?

(5) Was Mayor O’Keefe in a conflict of interest?

(6) Was Councillor Collins biased; did he prejudge the issue?

(7) If Councillor Collins was biased or if he prejudged the issue, does this affect the validity of Council’s March 12, 2012 decision?

(8) If Council’s decision was properly quashed because of Councillor Collins’ participation, would that disqualify other councillors who participated in the March 12, 2012 decision from participating in subsequent consideration and a decision on the rezoning application?

(9) Should Councillor Collins be permitted to participate in a new rezoning decision if he asserts that he has an “open mind”?

(10) Should the Court order the granting of the rezoning application?

(11) What order for costs should be made? ANALYSIS

(1) Standard of Review [ 25 ] The standard of review will vary depending on the issue. It is settled law that for findings of fact the standard is palpable and overriding error, as it is for mixed questions of fact and law, save for extricable questions of law where the standard is as it is for questions of law, that is correctness.

(2) The Nature of the Decision [ 26 ] The Trial Division judge described the legislative scheme under which City Council took the rezoning decision: [24] The process for applying for approval of a proposed development is summarized in an Information Bulletin prepared by the City and made available to developers. I set out the relevant extracts: DEVELOPMENT INFORMATION BULLETIN: REZONING PROPERTY AND TEXT AMENDMENTS TO THE ST.

JOHN’S DEVELOPMENT REGULATIONS This is one in a series of Development Information Bulletins prepared to assist Property Owners and Developers to undertake specific types of development in the City of St. John’s. Please contact the Department of Planning for further Information on other Bulletins available in the series. INTRODUCTION

The St. John’s Municipal Plan contains the policies adopted by the St. John’s Municipal Council for land use and development of the City. The regulations that implement these policies are contained in the St. John’s Land Use Zoning and Subdivision Regulations , commonly referred to as the St. John’s Development Regulations. The Urban and Rural Planning Act requires that the Development Regulations be consistent with the policies of the Municipal Plan. Both documents have been adopted and approved under this Act. The Development Regulations are used to regulate land use and development in the City.

They contain a series of zoning maps, a description of the uses permitted in each specified zone, and a variety of standards for development and/or subdivision. ZONING INFORMATION Any person requiring information on zoning, should first locate the property involved on the zoning maps available from the City’s Department of Planning, and establish what uses are permitted and what development standards apply to the property. City staff can assist. AMENDMENT Occasionally, a development may be proposed which does not meet the requirements of the City’s regulations.

Applicants for such developments are advised to discuss them with the Department of Planning prior to seeking an amendment. Two types of amendments are recognized: 1. Rezoning A change of the zoning, and in some cases, the Municipal Plan designation of a property, to allow a proposed development to proceed which otherwise would have been turned down. 2. Text Amendment A change in the development standard or regulations text of the Development Regulations, and in some cases a change in a policy of the Municipal Plan, which would allow a proposed development to proceed which otherwise would have been turned down.

Planning staff can advise of the amendment procedure. Applications for rezoning are site-specific and therefore usually initiated by the applicant for a specific development. Applications for a text amendment often have a broader application; although they may be initiated by a specific development, they may have an affect on many areas of the city. … Once the application has been officially accepted for processing, the following steps occur: 1. The Department of Planning gathers background information and refers the application to other departments and public agencies as required. 2.

A report is submitted to the Planning and Housing Committee of the St. John’s Municipal Council. The Committee normally meets monthly to consider land use planning issues and rezoning applications and to make recommendations to Council on same. 3. The Planning and Housing Committee brings its recommendations to the next Regular Meeting of Council for consideration. Council then decides whether to accept the recommendations. In the case of rezoning applications, the Urban and Rural Planning Act requires that the City provide an opportunity for public comment.

The City publishes a public notice of the proposed amendment in a local newspaper and mails notices to property owners within a 150 metre radius of the subject property. Council usually sets up a Public Meeting to discuss the application in more detail. 4. The Public Meeting is organized by City staff and chaired by a Councillor. The Public Meeting is advertised in the newspaper at least 10 days beforehand. Notices are mailed to property owners within 150 metres of the site, at least 14 days beforehand. The general public is invited to attend.

The applicant is asked to attend and present information about the application. City staff will also be present to discuss the proposed amendment. 5. The minutes of the Public Meeting are forwarded to Council at its next Regular Meeting for consideration. Council then decides whether to proceed further with the rezoning. If Council agrees to proceed, Council will adopt the amendments and forward all relevant documentation to the Department of Municipal & Provincial Affairs for review. 6.

When the Department of Municipal & Provincial Affairs confirms that there is no Provincial interest involved, the City will appoint an Independent Commissioner to convene a Public Hearing to discuss the proposed rezoning. 7. The general public is invited to attend the Public Hearing. The Hearing is advertised in a local newspaper and by, mail-out notice at least 14 days beforehand. The applicant will be asked to attend and present information on the application. City staff will also be present to discuss the proposed amendment. 8. The general public is invited to send in written submissions.

In the event no written objections or concerns have been received by two (2) days before the date of the Public Hearing, the Hearing may be cancelled. 9. After the Public Hearing is held, the Commissioner submits a written report to Council, normally within thirty (30) days. The report will note people’s comments and concerns and make a recommendation to Council on whether the amendment should be approved, modified, or rejected. Council is not bound by the recommendations of the Commissioner but does consider them fully. 10. The Commissioner’s report is tabled for consideration at a Regular Meeting of Council.

Council then decides whether to approve the amendments. The approved amendments are forwarded to the Minister of Municipal & Provincial Affairs for registration. The amendment comes into legal effect when the Minister’s notice of registration is published in The Newfoundland Gazette. ...

MUNICIPAL PLAN AMENDMENTS Some rezoning applications and text amendments to the Department Regulations require an amendment to the Municipal Plan. The Department of Planning will advise if this applies to a specific application. … [25] Although over the years there were multiple public and Council meetings addressing Seanic’s application, the process outlined in the Bulletin reflects essentially the process followed in this case up until the Council’s final decision to reject the application in March 2012. Accordingly the process ended at Step 5. [26] The Bulletin refers to the Municipal Plan and to the St.

John’s Development Regulations. The development of land in St. John’s is governed by the provisions of these documents, both created under the URPA . 12. A plan and development regulations are binding upon (

a) municipalities and councils within the planning area governed by that plan or those regulations; and (

b) a person undertaking a development in the area governed by that plan or those regulations. [27] The Development Regulations must be consistent with the Municipal Plan – O’Dea v. St. John’s (City) , 2004 CarswellNL 306 (T.D.). [28] But the regulatory structure is intended to be flexible and capable of amendment – s. 25 of URPA. Sections 14 – 24 of URPA set out a detailed process for amendment, including provisions for public consultation, a report to Council on the public hearing and a public debate and vote on the matter by Council. It is this process that is summarized in the Bulletin reproduced above. [29]

Section 5.5 of the Development Regulations sets out the details of the procedure of public notification and the holding of public meetings. The Regulations also give some direction to Council when considering applications for development: 5.1.3 Discretionary Powers

(1) Compatibility with the Municipal Plan In considering an application for approval to carry out Development, Council shall take into account the policies expressed in the Municipal Plan and any further scheme, plan or regulation pursuant thereto.

Where the requirements appear inadequate to meet the policies of the Municipal Plan or any document pursuant thereto, or where requirements have not been specified in these Regulations or are left to the discretion of Council, Council may establish the necessary requirements. … 5.2.5 Reasons for Refusing Permit Council or an Officer shall, when refusing a permit or attaching conditions to a permit, state the reasons in terms of the criteria used in exercising discretionary powers as provided in

Section 5.1.3. [30] The Municipal Plan makes a number of references to the need for flexibility in its application and for awareness of the need for future amendments. The following extracts are illustrative: (my underlining throughout) 1 Purpose and Scope A municipal plan is a document with text, maps, and other illustrations that expresses a municipality’s policies for planning, use, and future development of land. The St. John’s Municipal Plan guides the use of all land and property in the City of St. John’s in the overall interest of the municipality and its citizens. [p. I-1] The St.

John’s Land Use Zoning and Subdivision Regulations, commonly called the St. John’s Development Regulations , implement the policies of the St. John’s Municipal Plan and area subordinate to it. The Development Regulations are the primary regulations used to process development applications in St. John’s. [p. I-5] 2.1.2 General Land Use Map The General Land Use Map (Map III-1) sets out the Land Use Districts corresponding to the policies in

Part III. The map describes the future development of the city. Since development is influenced by a variety of factors, some of which are difficult to predict or control, the General Land Use Map is designed to be a flexible guide for development and zoning . [p. I-6] 2.2 PLAN AMENDMENT PROCEDURE The St. John’s Municipal Plan is written to guide development in the context of a Vision for the City’s future that establishes broad goals that are expected to hold over the life of this Plan revision.

However, conditions can change: areas may evolve from one land use toward another or developers may propose ideas or developments with merit that were not foreseen when the plan was revised. For these and other reasons, a municipal council can change any portion of its Municipal Plan, through a formal amendment process provided under

Section 25 of the Urban and Rural Planning Act . Future amendments are expected as a natural evolution of the municipal planning process. The amendment process reflects the fact that the St. John’s Municipal Plan is a dynamic document not a static one. The Act requires that council consult the public before proceeding to amend the plan. When considering an amendment or amendments,

Council shall evaluate the proposed amendment against the goals, objectives, and purposes of the Municipal Plan before deciding toaccept or reject a new policy. The process is provided for in Provincial legislation because it is essential to ensuring that the Plan isflexible and responsive. [p. I-7&8] III CITY-WIDE OBJECTIVES AND POLICIES 1 URBAN FORM The broadest objective of land use policies is to facilitate an efficient pattern of development. Generally, this means building a compactcity. A compact city makes better use of its infrastructure and needs less roadways.

With shorter distances to travel to work andshopping, car trips are reduced and transit use is facilitated. Often too, parks, schools, and facilities can be used more intensively,meaning the same investment will serve more people. [p.

III-3] 1.2.3 Residential Development The City shall: 1. increase densities in residential areas where feasible and desirable from a general planning and servicing point of view; 2. encourage a compatible mix of residential buildings of varying densities in all zones; 3. encourage conservation, compact renewal, and infill in the older parts of the City; and 4. minimize sprawl by encouraging large-scale integrated developments in all expansion areas. 1.2.4 Mixed Use The City shall encourage the mixture of land uses in all areas. [p.

III-4] 2 RESIDENTIAL Perhaps the single most important function of municipal government is assisting in the provision of suitable, affordable, and attractiveenvironments for housing of all groups in the population. Residential development is by far the largest category of urban land use in St.John’s. As such, it has a major influence on the character of the city and the quality of life of its inhabitants. Residential environments,furthermore, are arguably more sensitive to other land uses and, therefore, require a higher degree of protection from other types ofdevelopment.

Residential Districts are areas that will be developed primarily for residential purposes. Within these Districts the functioning of theevolving residential environment will be protected from other residential or non-residential land use that may be determined to beincompatible. That being said, it is implicit in the Vision for the City of St. John’s and in the foregoing objectives and policiespertaining to Urban Form that the City will encourage mixed land use and higher density development where it is opportune.

Provisionsare included to allow the development of neighbourhood-supportive commercial uses like convenience stores, day care centres, andparking areas. Policies also encourage the supply of housing through the proactive initiative of the City, and through infill andintensification. [p.

III-10] … (Underlining by the Trial Division judge.) [27] In his decision, the Trial Division judge relied on decisions of the Supreme Court of Canada, as follows: [34] There is no question that when considering an application for rezoning, a municipal authority, in the absence of specificlegislative provisions, owes the applicant a duty of procedural fairness. In Congrégation des témoins de Jéhovah de St.-Jérȏme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, the Supreme Court of Canada considered the content of this duty.

Of course, thecontent of the duty will vary according to the circumstances and the regulatory framework. Chief Justice McLachlin said, at paragraph5: 5.

The content of the duty of fairness on a public body varies according to five factors: (1) the nature of the decision and thedecision-making process employed by the public organ; (2) the nature of the statutory scheme and the precise statutory provisionspursuant to which the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate expectationsof the party challenging the decision; and (5) the nature of the deference accorded to the body: Baker v.Canada (Minister of Citizenshipand Immigration), (SCC), [1999] 2 S.C.R. 817.

In my view and having regard to the facts and legislation in this appeal,these considerations require the Municipality to articulate reasons for refusing the Congregation's second and third rezoning applications. [35] Of the first factor, the Chief Justice said this, at paragraph 6: 6.

The first factor -- the nature of the decision and the process by which it is reached -- merges administrative and political concerns.The decision to propose a draft by-law rezoning municipal territory is made by an elected council accountable to its constituents in amanner analogous to that in which Parliament and the provincial legislatures are accountable to their own: Godbout v. Longueuil (City), (SCC), [1997] 3 S.C.R. 844, at para. 51. This decision is moreover tempered by the municipality's charge to act in thepublic interest: Toronto (City) v.

Trustees of the Roman Catholic Separate Schools of Toronto, (UK JCPC), [1926]A.C. 81 (P.C.), at p. 86. What is in the public interest is a matter of discretion to be determined solely by the municipality. Provided themunicipality acts honestly and within the limits of its statutory powers, the reviewing court is not to interfere with the municipal decisionunless “good and sufficient reason be established”: Kuchma v. Rural Municipality of Tache, (SCC), [1945] S.C.R. 234,at p. 243 (per Estey J.); see also Norfolk v. Roberts (1914), (SCC), 50 S.C.R. 283, at p. 293; In re Glover and Sam Kee

(1914), (BC SC), 20 B.C.R. 219 (S.C.), at pp. 221-22; Re Howard and City of Toronto, (ON CA),[1928] 1 D.L.R. 952 (Ont. S.C., App. Div.), at p. 965. [36] And of the fifth factor, she said at paragraph 11: 11. The fifth factor -- the nature of the deference due to the decision maker -- calls upon the reviewing court to acknowledge that thepublic body may be better positioned than the judiciary in certain matters to render a decision, and to examine whether the decision inquestion falls within this realm.

Municipal decisions on rezoning fall within the sphere in which municipalities have expertise beyondthe capacity of the judiciary, thus warranting deference from reviewing courts. However, this factor may not carry much weight where,as here on the second and third applications for rezoning, there is no record to indicate that the Municipality has actually engaged itsexpertise in evaluating the applications. [37] Her conclusion, at paragraphs 12 – 13: 12.

The five Baker factors suggest that the Municipality's duty of procedural fairness to the Congregation required the Municipality tocarefully evaluate the applications for a zoning variance and to give reasons for refusing them. This conclusion is consistent with theCourt's recent decision in Prud'homme v. Prud'homme, 2002 SCC 85 , [2002] 4 S.C.R. 663, at para. 23, holding that municipalcouncillors must always explain and be prepared to defend their decisions.

It is also consistent with Baker, where it was held, at para. 43dealing with a ministerial decision, that if an organ of the state has a duty to give reasons and refuses to articulate reasons for exercisingits discretionary authority in a particular fashion, the public body may be deemed to have acted arbitrarily and violated its duty ofprocedural fairness. 13. Giving reasons for refusing to rezone in a case such as this serves the values of fair and transparent decision making, reduces thechance of arbitrary or capricious decisions, and cultivates the confidence of citizens in public officials.

Sustained by both law and policy,I conclude that the Municipality was bound to give reasons for refusing the Congregation's second and third applications for rezoning.This duty applied to the first application, and was complied with. If anything, the duty was stronger on the Congregation's second andthird applications, where legitimate expectations of fair process had been established by the Municipality itself. [38] In Lafontaine, the municipality’s decision was apparently not reached at a public meeting; it was communicated in writing,reproduced at paragraph 27: 27.

The Municipality responded by letter, dated August 24, 1993. Again, it refused the application for rezoning. Again, it offered noreasons. This time it did not even tell the Congregation that land was available in Zone P-3. The Municipality contented itself withasserting -- erroneously -- that since the Legislature had conferred discretion upon it, the Municipality was not required to offer anyjustification for refusing the Congregation's rezoning application: [TRANSLATION] You have made a number of applications to amend the zoning by-law.

The Legislature has given the municipalcouncil the responsibility for exercising this power, which is discretionary. Upon careful consideration, the municipality of Lafontainehas decided not to take action in respect of your applications. The municipal council of Lafontaine is not required to provide you with ajustification and we therefore have no intention of giving reasons for the council's decision. [Emphasis added by Supreme Court ofCanada.] [39] The Congregation asked the Court to order that its rezoning application be granted. But the Court refused, saying at paragraph32: 32.

The Congregation argues that this remedy is inadequate because it fears that the Municipality will once again refuse itsapplication, this time with proper reasons. Accordingly, it asks this Court to order the Municipality to grant its rezoning application. Butsuch an order presupposes that the Congregation is entitled to a favourable decision by the Municipality in the proper exercise of itsdiscretion.

Having already discussed the broad scope of the municipal power to pursue its urban planning program with fairness, in goodfaith and with a view to the public interest, I take no position on this matter. [40] The matter was remitted to the Municipality “to be considered in accordance with these reasons and in observance of the lawfulexercise of discretionary authority”. (Paragraph 35). [41] In another decision released in 2004, the Supreme Court of Canada considered a municipality’s liability in damages arising outof the amendment of a by-law. In Enterprises Sibeca Inc. v.

Frelighsbury (Municipality), the Court said this of the nature of thefunctions of a municipal council – at paragraph 24: … Municipalities perform functions that require them to take multiple and sometimes conflicting interests into consideration. To ensurethat political disputes are resolved democratically to the extent possible, elected public bodies must have considerable latitude. Where noconstitutional issues are in play, it would be inconceivable for the courts to interfere in this process and set themselves up as arbitrators todictate that any particular interest be taken into consideration.

They may intervene only if there is evidence of bad faith.

The onerous andcomplex nature of the functions that are inherent in the exercise of a regulatory power justify incorporating a form of protection both incivil law and at common law. … [28] Having addressed the general law with respect to municipal council decisions regarding zoning, the Trial Division judge thenturned to the statutory scheme under which City Council made the decision in question: [43] The governing legislation – in particular s. 16 of [the Urban and Rural Planning Act] contemplates that a municipal council willadopt (or reject) a rezoning application by majority vote.

In this case, the vote of Council was conducted in public after each councillorhad spoken to the matter. The Council meeting was the final step in the lengthy process that included public meetings, Councilcommittee meetings and the receipt of a number of written and oral submissions from those both for and against the development.

[44] Council is required by the Development Regulations – reflecting part of the content of the duty of procedural fairness - to givereasons for a decision to refuse approval. The reasons must relate to the criteria applied in the exercise of Council’s discretion,essentially the policies expressed in the Municipal Plan and other relevant plans or regulations. [45] This reflects the fact that Council does not have unfettered discretion to refuse an application for development.

Its discretionmust be exercised, and be seen to be exercised, within the boundaries established by the regulatory framework. … [48] Whether or not Council’s reasons are adequate is an assessment that must reflect the context in which the decision is beingmade. Council has the discretion to reject the advice and opinions of its professional staff; councillors are entitled to form their ownviews on relevant planning considerations; councillors are not required, as an adjudicator may be, to outline any evidence in support oftheir conclusions, although they may choose to do so.

On the other hand, Council is required to demonstrate that its decision was notinfluenced by considerations outside the planning process. [49] I reiterate that this is a decision being taken by majority vote of elected representatives in a public forum.

It seems to me to beappropriate that in such a setting, any consideration of the adequacy of reasons supporting a majority vote should start from the premisethat all councillors are aware of the Municipal Plan, its purposes and objectives, of the reports prepared by City staff and of the generalthrust of the various views that have been expressed – for and against – in the process culminating in the final Council meeting. [50] The report of the debate – read as a whole and with the recognition that it is in the form of a debate in which conflicting viewsmay be expressed – should show that Council is aware that it is debating a rezoning application; that the views put forward – construedgenerously – relate to considerations relevant to property development; and that the final decision could not be said to be arbitrary, in badfaith, or based on considerations outside the ambit of the regulatory framework. … for rejection gave the developer an indication ofwhether or not further work on the proposal would be productive. [29] Seanic’s view of the decision taken by City Council is fundamentally different.

Seanic submits that the decision whether torezone was adjudicative (quasi-judicial). Counsel for Seanic set out his positon as follows: 74. The Applications Judge examined the issue of whether the City’s decision concerning the Rezoning Application was legislative orquasi-judicial in the context of the duty to give reasons and the principles of administrative fairness such as the factors outlined inCongregation des temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Municipality), 2004 CarswellQue 1545 (S.C.C.)(“Lafontaine”), which in turn was relying on the factors explained in Baker v.

Canada (Minister of Citizenship & Immigration), 1999CarwellNat 1124 (SCC). (Reference: Decision paragraphs 34-53). 75. The Applications Judge erred in failing to consider whether he was reviewing an intra vires or ultra vires municipal decision. Hedid not consider the Baker v. Canada factors with respect to the issue of bias; rather his focus was upon the duty to give reasons. In thecontext of Council’s obligation to give reasons, the Applications Judge stated (at paragraph 47): Councillors are elected politicians.

In making decisions on applications for development, they are performing an administrative act infurtherance of their ability and duty to regulate and control development in the city. Although making a decision which affects theinterests of one or more persons or companies, they are not adjudicators. Decisions are by majority vote, and different Councillors mayhave different reasons for voting as they do. (Emphasis added.) 76. In Nanaimo (City) v.

Rascal Trucking Ltd., 2000 SCC 13 , [2000] SCJ No 14, the Supreme court of Canada noted thedifference between review of intra vires and ultra vires municipal decisions and set out three criteria that identify whether a decision isadjudicative or legislative/policy making: (

i) whether there was an adversarial hearing; (ii) whether the application of substantive rules toindividual cases was involved; and (iii) whether the decision would have a substantial impact on the rights of the parties. 77. The Applications Judge erred by not considering whether he was dealing with an intra vires or ultra vires decision [or], the threecriteria above … . . . . 78. The Applications Judge failed to recognize that the Rezoning Application (the Public Meeting, the Public Meeting minutes andwritten submissions and the Council Meeting discussion and decision) involved an adversarial hearing.

When the process is consideredas a whole, the Rezoning Application involved the application of the substantive rules of Municipal Plan and Development Regulationsto the situation of an individual property owner. It also involved a significant impact on the rights of Seanic, as well as the neighbouringproperty owners who were disputing the matter. 79. In accordance with Nanaimo, all of these circumstances point to the conclusion that – contrary to the thinking of the ApplicationsJudge – the Rezoning Application was an adjudicative hearing before City Council. . . . 82.

In addition, the Applications Judge did not consider previous cases that employed an analysis of the duty of procedural fairness inthe situation of contested municipal rezoning applications: Keefe v. Edmonton (City), 2002 CarswellAlta 1683 (QB) affirmed 2005CarswellALTA 442 (CA) and PJD Holdings Inc. v. Regina (City), 2010 CarswellSask 776 (QB). Both of these cases considered theBaker v.

Canada factors and concluded that when a municipal council decides a dispute between neighbouring property ownersconcerning the development of a specific property, council makes a judicial or quasi-judicial decision, not a legislative decision. 83. Therefore, council decisions on re-zoning applications of the within sort import a high degree of procedural fairness. Themunicipality in these quasi-judicial re-zoning processes must be prepared to meet a high “content level” of the fairness duty in order fortheir decision on the Rezoning Application to accord with procedural fairness.

84. The Applications Judge concluded that he should apply the reasonableness standard by asking whether the Council “was alive to the question at issue”. However, the ‘alive to the question at issue’ approach is for intra vires decisions and the conclusion and approach of the Applications Judge runs contrary to Nanaimo : reviewing whether an adjudicative decision of Council was ultra vires clearly attracts the correctness standard of review, not reasonableness.

The Applications Judge should have decided whether the Council correctly considered, exercised, and justified its statutory discretion under the Development Regulations. 85. On the issue of bias, the Applications Judge quite rightly referred to Old St. Boniface Residence Association Inc. v. Winnipeg (City) , 1990 CarswellMan 235 (SCC) and the Save Richmond Farmland Society v. Richmond (Township) , 1990 CarswellBC 282 (SCC) re-zoning cases, which stand as seminal jurisprudence in that area of law. 86. However, the nature of the cases decided in Old St.

Boniface and Save Richmond were quite different from Seanic’s case. Unfortunately, the Application judge failed to note that Seanic’s case (like the Keefe and PJD Holdings cases, but unlike the Old St. Boniface and the Save Richmond cases), is not a case of broad public policy. Thus, although Old St.

Boniface and Save Richmond were placed further toward the legislative end of the spectrum of classifying administrative decisions, Seanic’s case is rightly placed on the quasi-judicial end of the spectrum because the nature of the dispute relates more to a decision arbitrating private interests [rather than] wide policy decisions. . . . 90. Applying the Baker factors to the within preceeding, the following points are critical. 91.

Seanic’s Rezoning Application did not involve a large parcel of land or broad planning issues like those involved with development issues concerning large areas like Quidi Vidi Village or Galway. It involved a small parcel of land and whether zoning should be changed so that the Seniors Development could be built on the Property. While the idea of a seniors facility in the West End of St. John’s was of some general interest to seniors in the city, the potential development and rezoning was of specific and particular focused concern to property owners located in the immediate area of the Property. 92.

The within proceeding was a situation where legislation had already been passed by the City in the form of the Municipal Plan and Development Regulations , which set out the planning policies concerning this and other locations. When dealing with the rezoning, Council was not legislating any new planning policy or rules; rather, Council was merely applying existing planning policies and rules set out in the Municipal Plan and the Development Regulations to the circumstances of this particular property. 93.

By contrast with Lafontaine , this case is not akin to Parliament (or the provincial legislature) passing legislation. It is more like a planning board or local board of appeal deciding, after representations and planning evidence by neighbours, whether, based upon the Municipal Plan and Development Regulations , a zoning amendment or municipal permit should be granted and what conditions should be involved. 94.

Most importantly, this proceeding involved a dispute between neighbouring property owners concerning how existing planning rules and policies should be applied to the Property; a dispute which has direct impact on the rights of the property owners in this location, not the City in general. Thus, the nature of this Rezoning Application is adjudicative, not legislative, in accordance with the criteria stated in Nanaimo . . . . 97.

To summarize, the Rezoning Application was primarily a dispute between neighbours that the City was being asked to determine based upon existing planning policies and rules – not a legislative or policy decision. Consequently, this Baker factor militates toward a high degree of procedural fairness. 98. The statutory background at play was discussed at paragraphs 18-42 above. The Rezoning Application was governed by existing legislated rules – by the URPA, the Municipal Plan and the Development Regulations . 99.

The URPA required a public meeting and a decision and vote at a Council Meeting by the City Councillors after consideration of the representations arising from the public meeting. A Development Information Bulletin issued by the City set out in writing the Public Meeting and Council Meeting process. The Public Meeting was to be chaired by a member of Council. The notice of the Public Meeting was to be put in a local newspaper and specifically mailed to property owners within a 150-metre radius of the subject property. 100.

Both the public and Seanic were asked to attend and present information about the application, and City staff were to be in attendance in order to discuss the Rezoning Application. Council members (other than the Meeting chair) were not asked or required to be in attendance or to speak; however minutes of the Public Meeting were to be forwarded to the Council for Consideration at Council’s next regular meeting. 101. The Municipal Plan stated how the City Council was to deal with rezoning applications.

Section 2.2 of the Municipal Plan stated: When considering an amendment or amendments, counsel shall evaluate the proposed amendments against the goals, objectives, and purposes of the municipal plan before deciding to accept or reject a new policy.

Section 5.2.5 of the Development Regulations also specifically stated: Council or an officer shall, when refusing or attaching conditions to a permit, state the reasons in terms of the criteria used in exercising discretionary powers as provided in

section 5.1.3.

Section 5.2.5 of the Development Regulations is Council’s own express statement that it must state its reasons in terms of the criteria used in exercising discretionary powers as provided in

section 5.1.3 when refusing or attaching conditions to a permit. Further,

section 5.5 of the Development Regulations made it mandatory that Council consider the record produced by the Public Meeting.

Section 5.5 stated: The City Clerk shall cause to be recorded the proceedings of the Public Meeting and these proceedings, together with any written representations, shall be considered by Council when it makes its decision on the matter, which is the subject of the Public Meeting. (Emphasis added.) 104. All of the above provisions point to the adjudicative nature of the re-zoning decisions made by Council. Then, on top of that, there is no right of appeal from this adjudicative decision.

This Baker factor indicates a high degree of procedural fairness. (Underlining by counsel for Seanic.) [ 30 ] Seanic sought to distinguish LaFontaine and the other Supreme Court of Canada cases relied on by the Trial Division judge on the basis that the facts in those cases differ from those in this case. I do not find that persuasive.

While there are factual differences, what was relied on by the Trial Division judge were the broad principles outlined by the Supreme Court of Canada in the cases to which he referred, most notably what Chief Justice McLachlin wrote in LaFontaine regarding municipal rezoning decisions. In my view, those principles apply in this case. [ 31 ] Seanic’s position is based largely on Nanaimo (City) v. Rascal Trucking Ltd. , 2000 SCC 13 , [2000] 1 S.C.R. 342, which (in the words of Seanic’s Factum), … set out three criteria that identify whether a decision is adjudicative or legislative/policy making: (

i) whether there was an adversarial hearing; (ii) whether the application of substantive rules to individual cases was involved; and (iii) whether the decision would have a substantial impact on the rights of the parties. [ 32 ] The problem with the foregoing is that it does not fit with the nature of the decision by City Council. First, there was no “adversarial hearing”; rather, there was an application by Seanic, there were the views of interested citizens, there was analysis by municipal officials, there was debate by City Council and, in the end, there was a vote by City Council.

Thus, the decision-making process consisted of several stages, involving multiple actors, engaged in diverse ways, quite different from an adversarial/adjudicative process. Second, the process did not involve “the application of substantive rules”.

While the statutory scheme focuses on proper land use planning, it accords considerable discretion to a body (City Council) comprised of elected persons who, by the nature of their office, apply political judgment as an integral part of their decision-making; they are engaged in examining practical and policy concerns rather than a set of rules or fixed criteria in the exercise of their discretion. [ 33 ] Further to this, Seanic relies on a distinction between intra vires and ultra vires decisions of Council. Given the facts of this case, that is not a relevant distinction.

City Council has authority to decide rezoning applications; the issue of vires is, thus, not in question. Rather, the proper lens for judicial review of City Council’s decision is the test of “reasonableness” as set out by the Supreme Court of Canada in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190. Seanic does not argue that City Council’s decision was unreasonable; rather, Seanic argues that the decision was incorrect (by reference to the standard of correctness) or that it was ultra vires (i.e. taken without jurisdiction).

But, as I have indicated, vires is not in issue and correctness is not the relevant standard of review. [ 34 ] Beyond this, I would note the line of analysis set out by counsel for St. John’s: [9] There is a fundamental fallacy with Seanic's argument both on the Appeal and the Cross-Appeal. Seanic argues in effect that its application to change the Development Regulations to re-zone the property is compatible with the Municipal Plan and that the City therefore must approve the change in the zoning and change the Development Regulations.

This argument is based on a fundamental fallacy that the proposed amendment must be preferred over the existing zoning. Such a conclusion is incorrect in law. [10] The Municipal Plan and the existing Development Regulations were created following all of the requirements of URPA. They reflect and embody appropriate planning and development principles and policies. They have been prepared by professional planners. They have been through public hearing processes. They have been approved by the City Council. And they have been approved by the Minister of Municipal Affairs.

This property is currently zoned Residential Low Density (R1) in the Development Regulations. The R1 zoning reflects the application of proper planning and development principles and policies. . . . 13. … Anyone can apply to change the zoning designation of a property by submitting an application and paying a fee of $300.00. That will begin a process which may possibly lead to a change in the zoning. But there is no entitlement to a change in zoning. There is no presumption in favour of change.

At the end of the process, Council may decide that it wishes to retain the existing zoning designation which has already been established in accordance with sound planning principles and policies. 14. In this case, Seanic sought to change the existing Residential Low Density (R1) zoning under the Development Regulations to the Apartment Special (AA) Zone which permits an apartment building of three (3) stories (up to 12 meters) and to introduce “Personal Care Home” as a Discretionary Use in the AA Zone.

These changes are compatible with the Municipal Plan in the sense that the proposed use would not require an amendment to the broader policies contained in the Plan. But compatibility with the Plan just gets Seanic to the starting line for consideration; it does not entitle Seanic to a change in zoning. 15. Seanic argues that its proposed change is compatible with the Municipal Plan and meets appropriate planning principles. But the decision for City Council is not a choice between Seanic’s proposal and something which is incompatible with the Municipal Plan and proper planning principles.

Rather, the decision for City Council is a choice between Seanic’s proposal and the existing zoning which already complies with proper planning principles. 16. The decision is a policy or legislative decision for Council. Council is required to provide an opportunity to be heard in accordance with URPA and previous case authority. But Council is not deciding a lis or a dispute between parties. Council is deciding a

matter of public policy, whether to amend the Development Regulations to change the zoning. ... 17. Council does not need "evidence" in order to reject the proposed change. The existing zoning is already compliant with URPAand proper planning. Council's decision to retain the existing zoning is simply a policy choice that Council is entitled to make. . . . 23. The [Supreme Court of Canada in Old St. Boniface, supra] rejected allegations of bias in respect of a councillor who had openlysupported a proposed development.

The Court pointed out at paragraph 90 that "the role of a municipal councillor is quite different fromthat of the chairman of the National Energy Board...".The Court continued the contrast at paragraph 91, pointing out that "...members ofthe National Energy Board do not have political or legislative duties. Prejudgment of issues is not inherent in the nature of their extra-adjudicative functions". The Court thus indicated the inherent political and legislative nature of councillors' functions which permits adegree of pre-judgment. 24.

The Court concluded that what is to be avoided is personal interest, not partiality by reason of pre-judgment. The Court stated atparagraph 92: 92 I would distinguish between a case of partiality by reason of prejudgment on the one hand and by reason of personal interest on theother. It is apparent from the facts of this case, for example, that some degree of prejudgment is inherent in the role of a councillor. Thatis not the case in respect of interest.

There is nothing inherent in the hybrid functions, political, legislative or otherwise, of municipalcouncillors that would make it mandatory or desirable to excuse them from the requirement that they refrain from dealing with matters inrespect of which they have a personal or other interest.

It is not part of the job description that municipal councillors be personallyinterested 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 theexercise 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, (ON SC), [1967] 1 O.R. 604, 61 D.L(R. (2d) 659(H.C.); Moll v.

Fisher (1979), (ON SC), 23 O.R. (2d) 609, 8 M.P.CR. 266, 96 D.L.R. (3d) 506 (Div. Ct.); Ctee. forJustice, supra; and Valente u. R., (SCC), [1985] 2 S.C.R. 673. 49 C.R. (3d) 97. 37 M.V.R. 9, 23 C.C.C. (3d) 193, 24D.L.R. (4th) 161, 19 C.R.R. 354. 14 O.A.C. 79, 64 N.R. 1 Old St. Bonifice Residents Association Inc. v. Winnipeg (City), 1990 CarswellMan 235 (SCC) . . . 27. … In Nanaimo (City) v.

Rascal Trucking Ltd., the Court recognized that municipalities are political bodies. “To a large extent councildecisions are necessarily motivated by political considerations and not by an entirely impartial application of expertise.” (para. 32) TheCourt continued at paragraph 35: 35 In light of the conclusion that Nanaimo acted within its jurisdiction in passing the resolutions at issue, it is necessary to consider thestandard upon which the courts may review those intra vires municipal decisions.

Municipal councillors are elected by the constituentsthey represent and as such are more conversant with the exigencies of their community than are the courts. The fact that municipalcouncils are elected representatives of their community, and accountable to their constituents, is relevant in scrutinizing intra viresdecisions. The reality that municipalities often balance complex and divergent interests in arriving at decisions in the public interest is ofsimilar importance. In short, these considerations warrant that the intra vires decision of municipalities be reviewed upon a deferentialstandard.

Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13 , [2000] SCJ No 14 28. In 2003, in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), the Supreme Court of Canada embraced abroad and purposive approach to the

interpretation of municipal statutes affirming that, absent any challenge on constitutional grounds, itis for the municipality to decide the best interests of its citizens. United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19 , 2004 CarswellAlta 355 (SCC) 29. In 2004, in Congregation des temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Municipality), the Court considered therefusal of a municipality to re-zone a property to permit a place of worship. The municipality gave no explanation for its decision.

TheCourt remitted to the municipality the matter for re-consideration. … The Court stated: 6 The first factor -- the nature of the decision and the process by which it is reached -- merges administrative and political concerns. Thedecision to propose a draft by-law rezoning municipal territory is made by an elected council accountable to its constituents in a manneranalogous to that in which Parliament and the provincial legislatures are accountable to their own: Godbout c. Longueuil (Ville), (SCC), [1997] 3 S.C.R. 844 (S.C.C.), at para. 51.

This decision is moreover tempered by the municipality's charge to act inthe public interest: Toronto (City) Roman Catholic Separate School Board v. Toronto (City) (1925), (UK JCPC),[1926] A.C. 81 (Ontario P.C.), at p. 86. What is in the public interest is a matter of discretion to be determined solely by themunicipality. Provided the municipality acts honestly and within the limits of its statutory powers, the reviewing court is not to interferewith the municipal decision unless “good and sufficient reason be established”: Kuchma v.

Tache (Rural Municipality), (SCC), [1945] S.C.R. 234 (S.C.C.), at p. 243 (per Estey J.); see also Norfolk v. Roberts (1914), (SCC), 50 S.C.R. 283(S.C.C.), at p. 293; Glover v. Kee (1914), (BC SC), 20 B.C.R. 219 (B.C. C.A.), at pp. 221-22; Howard v. Toronto(City), (ON CA), [1928] 1 D.L.R. 952 (Ont. C.A.), at p. 965. [Emphasis added] Congregation des ternoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Municipality), 2004 CarswellQue 1545 (SCC)

. . . 33. In this case, councillors were considering an application to re-zone the property from its existing R1 zoning to Apartment Special (AA) zoning. Council had before it essentially two choices. One choice was to maintain the existing zoning. The existing zoning had been prepared, examined and approved in accordance with all of the processes and procedures set forth in URPA. It met proper planning policies and principles. The second choice was to change the zoning as proposed by Seanic. After following all of its required processes and procedures, Council decided to retain the existing zoning.

That was a legislative decision based upon policy choices that Council was entitled to make in the exercise of its discretion and judgment. 34. The decision falls within a range of reasonable outcomes available to Council under the URPA. The decision conforms with the regulatory scheme set up by the Legislature embodied in the URPA. Council did not act for any improper purpose or in bad faith. Consequently, there is no basis upon which the Court can interfere with Council's decision. (Underlining by counsel for St.

John’s.) [ 35 ] The foregoing analysis supports the conclusion that the Trial Division judge did not err when he decided that the rezoning decision was not an adjudicative decision, rather it was discretionary, having regard to “relevant planning considerations”. (See para. 48 of the decision under appeal, reproduced above in para. 28 of this decision.) [ 36 ] I would emphasize a critical distinction in decision-making by City Council.

If a project proponent applies to develop a property and the proposal is (purportedly) in conformity with zoning (and other regulatory requirements), then the proponent is entitled to receive approval to proceed with the project or, if such approval is denied, to be informed of the reasons why approval was denied.

If the reasons disclose no valid basis for denying the approval, then the proponent has a right to seek judicial review, with a view to compelling City Council to grant approval. [ 37 ] A different situation exists where a proponent seeks rezoning because the intended project does not conform with the existing zoning. That is the situation here. In such an instance, all that the proponent can expect is that City Council will consider the rezoning application within the context of the statutory authority conferred on it to make such decisions.

If City Council fails to adhere to some procedural requirement set out in the statutory scheme (e.g. it fails to hold a public meeting), then the project proponent can seek to have Council’s decision quashed on judicial review on the basis of procedural unfairness. Similarly, if Council bases its decision on factors that are unconnected with the purposes of the statutory scheme (e.g. it denies a rezoning application based on the political affiliation of the project proponent), then again the proponent can seek to have Council’s decision quashed on judicial review as such a decision would be unreasonable.

But, the proponent has no right to have the rezoning application approved . To repeat, this contrasts with the situation of a project plan that conforms with existing zoning (and other regulatory requirements), in which instance the proponent does have a right to receive approval to proceed with the project.

(2) Did Council have Regard to Planning Factors? [ 38 ] When one reads the transcript of the City Council debate preceding the vote, key factors referred to by Councillors were: - Collins (the ward councillor): traffic concerns; lack of accessible amenities for seniors - Galgay: no problems with respect to traffic; no effect on property values - O’Leary: traffic concerns; poor accessibility to the site by seniors; public opposition - Tilley: need for more seniors homes - Hickman: traffic concerns; lack of accessible amenities for seniors; public opposition. - Hann: need for more seniors homes - Breen: traffic concerns - Hanlon: parking concerns - Duff: parking concerns; lack of accessible amenities for seniors; opposed to “spot zoning” that is incompatible with surrounding land use - Collins (closing debate): public opposition. [ 39 ] Concerns regarding traffic, parking and compatibility of the project with surrounding land use are all valid planning concerns.

The same is true of accessibility to amenities by seniors, in a situation where Council was being asked to exercise their discretion to change the zoning so that the land could be used as the site for a seniors home. [ 40 ] The same can be said for the Councillors who favoured rezoning because they wanted to see more housing for seniors.

They wished to exercise their discretion in favour of rezoning in order to support a valid public policy goal, albeit one not directly related to land use planning. [ 41 ] Finally, there were three councillors (Collins, Hickman and O’Leary) who gave as part of their rationale for voting against the rezoning application the fact that persons living in the vicinity of the proposed project were opposed to it. [ 42 ] A politician is not barred from having regard to the views of his or her constituents in making a discretionary decision, including rezoning.

The legislature must have intended this, as it is a natural and predictable consequence of conferring authority to make rezoning decisions on City Council rather than conferring such authority on some institution (like the Ontario Municipal Board) whose members

are appointed, rather than elected. [43] It is not for the courts to tell members of City Council that they are to make discretionary decisions (as was this decision)without regard to the views of affected citizens, persons who are their constitutents. That would run counter to the democratic system. Seanic’s submissions on this point must be rejected.

(4) Was Council Required to Give Reasons for its Decision Beyond the Debate Preceding the Vote? [44] Based on the foregoing, notably the discretionary nature of the rezoning decision and the content of the debate, there is no basisin law to require City Council to provide additional reasons for its decision. The judicial review judge did not err in his conclusion thatthe debate in the Council chambers was sufficient to comply with the duty to give reasons.

(5) Was Mayor O’Keefe in a Conflict of Interest? [45] Seanic said that Mayor O’Keefe was in a conflict of interest because he discussed the proposed project with concerned citizensand told them that he shared their concerns. This is not a conflict of interest; this is the ordinary work of an elected office holder. [46] Seanic further said that Mayor O’Keefe was in a conflict of interest because his daughter’s parents-in-law lived near theproposed project and opposed it.

This is too remote to constitute a conflict of interest. [47] Mayor O’Keefe was also not present during the debate nor did he vote on the rezoning application. This is a complete answerto any concerns relating to conflict of interest.

(6) Was Ward Councillor Collins Biased; Did He Prejudge the Issue? [48] Here is what the Trial Division judge wrote with respect to whether Councillor Collins was biased or had prejudged the issue: [60] Seanic asserts that Mayor O’Keefe had prejudged the issue and was biased because of his involvement with opponents of theprocess. The evidence, which I accept, is that the mayor spoke throughout the process to those for and against the development.

Theassertion of either bias or prejudgment on the part of the Mayor is not supported by the evidence and, as previously noted, the mayor didnot vote on the final decision. [61] Seanic also asserts that Councillor Collins demonstrated prejudgment in that he came to the Council meeting on March 12having made up his mind to reject the application, based primarily on the opposition of area residents. [62] Councillor Collins testified in a forthright manner.

He acknowledged that in the public meeting of October 26, 2010 heanswered, in response to a question from a member of the public, that he would be voting against the proposal. At the subsequentCouncil meeting on November 1, 2010, he referred to the project as “just crazy”.

He remained consistent in his position. [63] He confirmed that his mind was made up before the Council meeting on March 12, 2012; he went on to indicate that he wouldprobably vote for the project if the residents were in favour of it. [64] The evidence satisfies me that Councillor Collins had, before the Council meeting of March 12, 2012, completely made up hismind to reject the proposal, that his rejection was primarily based on the opposition from area residents, and that he was not open to bepersuaded by any argument or representation to the contrary. [65] The issue of bias in the sense of prejudgment has been discussed in at least three decisions of the Supreme Court of Canada. [66] In Old St.

Boniface Residents Assn. Inc. v. Winnipeg (City), (SCC), [1990] 3 S.C.R. 1170, the Supreme Court ofCanada considered prejudgment in the context of a contested rezoning by the City of Winnipeg. A councillor who voted for therezoning had previously expressed his support for the application during consideration by the City’s Finance Committee. The majorityjudgment, written by Justice Sopinka, first sets out the circumstances under which the council makes zoning decisions. It is notdissimilar to the process in St.

John’s. . . . [67] After discussing a number of authorities, [Justice Sopinka] concludes at paragraph 57: 57. In my opinion, the test that is consistent with the functions of a municipal councillor and enables him or her to carry out thepolitical and legislative duties entrusted to the councillor is one which requires that the objectors or supporters be heard by members ofCouncil who are capable of being persuaded. The Legislature could not have intended to have a hearing before a body who has alreadymade a decision which is irreversible.

The party alleging disqualifying bias must establish that there is a prejudgment of the matter, infact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individualmembers of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes thatthey are the expression of a final opinion on the matter, which cannot be dislodged.

In this regard it is important to keep in mind thatsupport in favour of a measure before a committee and a vote in favour will not constitute disqualifying bias in the absence of someindication that the position taken is incapable of change. The contrary conclusion would result in the disqualification of a majority ofCouncil in respect of all matters that are decided at public meetings at which objectors are entitled to be heard. [68] This test was confirmed in Save Richmond Farmland Society v. Richmond (Township), (SCC), [1990] 3S.C.R. 1213, at paragraphs 47 – 48.

See also on this point Newfoundland Telephone Co. v. Newfoundland (Public Utilities Board), (SCC), [1992] 1 S.C.R. 623 at paragraph 27. [69] Did Councillor Collins come to the Council meeting on March 12, 2012 with a closed mind, so determined to vote against theproposal such that any representation or argument to the contrary would be futile? The evidence satisfies me that the answer is yes. In

this case, the situation is more troubling since, in my assessment, Councillor Collins’ mind was closed primarily because of theopposition of those who elected him and not because of legitimate planning considerations. Although Councillor Collins did expressconcerns about traffic, safety and amenities, these were not, in my assessment, the considerations which persuaded him to vote as he did. They were concerns which were subject to being overridden by the wishes of his constituents. [70] The closed mind test is a stringent test.

It reflects the nature of the process and the fact that discretionary decisions are beingmade by an elected body whose members may well be participants in various aspects of what may be a prolonged approval process, whowill be the recipients of entreaties from those who elected them, and who may be required during an election campaign to take positionson divisive development issues.

A degree of prejudgment, perhaps to a significant degree, is to be expected as a lengthy consultation andpublic process approaches completion. [71] Nonetheless, a vote by Council on a rezoning application is expected to be a considered vote following deliberation and debateby Council. It is a vote on a proposal on which a developer, as in this case, may have expended significant resources, often at thedirection of the municipality.

The regulatory regime governing development – in particular its recognition of the evolutionary nature ofmunicipal planning – requires that councillors bring a degree of independent judgment to their deliberations and decisions.

Even thoughthey are elected, councillors, in this context, are not a simple proxy for their electors; they are entrusted with the development of themunicipality in accordance with the Municipal Plan and regulations. [72] When the time comes for a vote on a development proposal, fairness to the applicant and adherence to the regulatory regimefor property development require that each councillor listen to the views expressed by his or her colleagues, respect and be governed bythe criteria against which the discretionary authority is to be exercised and, where there has been a degree of prejudgment, honestly andobjectively consider whether his or her position should be maintained. [73] In this case, Councillor Collins did not do that.

As noted, I am satisfied that his mind was closed and that any representations tothe contrary would be futile. [49] In this appeal, Seanic took the position that the Trial Division judge was mistaken as to the nature of the rezoning decision, thatit was adjudicative and, therefore, the test to be applied was “reasonable apprehension of bias”, rather than “closed mind”. As well,Seanic said that whichever test one applies, Councillor Collins fell afoul of it. [50] In this regard, counsel for Seanic argued: 130.

The Supreme Court of Canada has noted that the inquiry as to whether a person is biased is “highly fact-specific” (Reference:Wewaykum Indian Band v. Canada, 2003 SCC 45 , [2003] SCJ No. 50 at paragraph 77). The Supreme Court of Canada has alsoapproved of the comment that: This is a corner of the law in which the context, and the particular circumstances, are of supreme importance. Ref: Wewaykum, paragraph 77 131.

With regard to the issue of bias, there are two tests: 1) with regard to tribunals that are on the adjudicative end of the spectrum;and 2) with regard to tribunals which are on the legislative or policy-making end of the spectrum. The test concerning an administrativetribunal that is exercising an adjudicative function is known as the reasonable apprehension of bias test. . . . 132.

The test concerning an administrative tribunal that is exercising legislative or policymaking functions is known as the “closedmind” test, which requires significant prejudgment by the impugned decision-maker: The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that anyrepresentations at variance with the view, which is being adopted, would be futile.

Statements by individual members of council, whilethey may very well give rise to an appearance of bias, will not satisfy the tests unless the court concludes that they are the expression ofa 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 measurebefore a committee and a vote in favour will not constitute disqualifying bias in the absence of some indication that the position taken isincapable of change. Ref: Old St. Boniface Residence Association Inc. v. Winnipeg (City), Op. Cit., at paragraph 94. 133.

The closed-mind test deliberately sets a higher threshold and is a harder test to satisfy than the reasonable apprehension of biastest. Moreover, it is an inescapable conclusion that if bias in accordance with the closed mind test has been found, then bias inaccordance with the reasonable apprehension of bias test has also been found. 134. The appropriate test respecting Seanic’s Rezoning Application, where the City was acting on the adjudicative end of thespectrum, should have been the reasonable apprehension of bias test. 135. Accordingly, the Applications Judge erred in law by selecting the closed mind test.

However, this legal error by the ApplicationsJudge does not fatally affect his ultimate findings, because the Applications Judge also concluded that Councillor Collins had prejudgedthe matter enough to satisfy the closed mind test. 136. The finding that Councillor Collins had prejudged the matter was principally a fact-finding decision.

This factual finding made bythe Applications Judge also satisfies the reasonable apprehension of bias test: since he concluded that the comments and actions ofCouncillor Collins demonstrated a closed mind, it inevitably follows that those same comments and actions demonstrate a reasonableapprehension of bias.

[ 51 ] As noted in paragraph 35 above, I have concluded that the Trial Division judge did not err when he decided that council’s rezoning decision was not an adjudicative decision, rather it was discretionary, having regard to the “relevant planning considerations”. Thus, the Trial Division judge did not err when he concluded that the relevant test was the “closed mind” test. [ 52 ] This leads to the question whether in applying that test the Trial Division judge erred. Counsel for St. John’s submitted that the Trial Division judge did so. He argued as follows: 32.

Chief Justice Orsborn at paragraphs 69 and 72 of his decision states that Councillor Collins had a closed mind when it came time to vote on Seanic's development proposal. This conclusion reflects a fundamental misunderstanding about how the process works. At the March 12, 2012 Council meeting, the councillors were expected to have considered all the material and submissions from the consultation process and have made up their minds. The vote on March 12, 2012 was the end of the process that initially began in 2007. . . . 44.

The Learned Trial Judge erred in law with respect to the “closed mind” test and its application in this case. Mr. Collins was the ward councillor for the area affected by the rezoning application. He was entitled to form his opinions as the matter progressed, as he considered the application, read the various reports and listened to the concerns of the area residents. After considering the matter, he formed his opinion that the rezoning application should be rejected based on all the facts and legitimate planning concerns, also shared and articulated by his fellow councillors.

It defies logic to find that Councillor Collins, having formed his opinion after giving the matter due consideration, should be disqualified due to bias at the time of the final vote, simply for expressing his views in Council. Making a motion to reject the rezoning application and explaining his reasons for doing so are a permissible exercise of the councillor’s duties and powers. 45. Councillors are elected officials accountable to their constituents. They have a mandate to form and express opinions on policy matters such as planning and zoning.

They have an obligation to listen to the views of the constituents in their ward regarding planning and zoning decisions for that ward. It is perfectly permissible for a ward councillor to listen to the views of his constituents and form and express his opinions, particularly at the decision stage. This is a permissible expression of a discretionary political power and cannot be grounds to overturn a decision of Council. . . . 58. It is difficult to see how Councillor Collins’ comments differ much from the others who voted against the rezoning application.

They all cite traffic concerns, topography, parking, the lack of amenities available to seniors, all properly acknowledged by Chief Justice Orsborn as valid planning concerns. They also discuss the concerns of the residents in the area, clearly another valid planning concern. This factor seems to be diminished or even challenged by the reasoning of the learned Chief Justice given that he finds it problematic that Councillor Collins' main concern was the views of his constituents. . . . 60.

It cannot be said that Councillor Collins had a “closed mind” in the sense that his decision was tainted by legally impermissible bias when the comments provided are his reasons for his decision. This is akin to a Judge providing reasons for judgment. Obviously, coming to conclusions about a matter as part of one's deliberations after having heard the case does not amount to bias. Vasiliopoulos v. Dosanjh, 2008 CarswellBC 2145 (CA) .

The ward councilor moving the motion to reject the rezoning application obviously had his mind made up and was required to express his reasons for reaching the conclusion that he did. Every other councillor had also made up his or her mind, voted and expressed their reasons. Councillor Collins’ comments do not constitute impermissible bias at that stage of the rezoning process.

They simply reflect the reasons for the councillor’s decision to move to reject the rezoning application, which included concerns raised by his constituents, a perfectly permissible exercise in the circumstances. [ 53 ] Based on the foregoing, I would state the following: (

a) The “closed mind” test needs to be applied in a way that accords with the realities facing elected officials. It does not require an elected official to remain in a state of uncertainty until the instant before a vote is taken. Rather, a “closed mind” exists when someone refuses to consider what they are supposed to consider, in this case “relevant planning considerations”. (

b) I cannot agree with Seanic’s submission that Councillor Collins was biased against the project and that he prejudged the decision because he opposed it based on the views of his constituents. Councillor Collins did what we expect politicians to do; he listened to his constituents on matters relevant to the issues under consideration. Where the decision to be taken is discretionary (as it was here), elected officials are entitled to do so. That is part of the norma

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