City of Guelph v. Board of Health, 2011 ONSC 5981

CITATION: City of Guelph v. Board of Health, 2011 ONSC 5981 COURT FILE NO.: 173/11 DATE: 2010-10-12 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) )) THE CORPORATION OF THE CITY OF GUELPH ) ) Donna Jaques , for the Plaintiff ) Plaintiff ) ) - and - ) ) ) BOARD OF HEALTH FOR THE WELLINGTON-DUFFERIN-GUELPH HEALTH UNIT and THE CORPORATIONS OF THE COUNTY OF WELLINGTON and THE CORPORATION OF THE COUNTY OF DUFFERIN ) ) ) ) ) ) ) ) ) ) ) ) Steven W. Pettipiere , for the Defendant, Board of Health for the Wellington- Dufferin-Guelph Health Unit Sarit E.

Batner, for the Defendant, The Corporation of the County of Wellington Sanj Sood, for the Defendant, the Corporation of the County of Dufferin ) Defendants ) ) )) HEARD: September 12, 2011, at Brampton , Ontario Price J. Reasons For Order NATURE OF PROCEEDING [ 1 ] The Wellington-Dufferin-Guelph Board of Health (“the Board”) made decisions in 2010, by a two-to-one majority vote of its

members, each of whom represents a constituent municipality, to acquire two properties and erect buildings on them at a cost of $22 million from which to deliver public health services. [ 2 ] The City of Guelph says that it cannot afford the $12 million liability (its 46% share of the 25% cost of the new buildings not funded by the Provincial Government) that the building projects will entail.

It fears that the debt will result in its credit-rating being down-graded, which will delay or jeopardize other capital projects it has planned, including a library and recreation centre. [ 3 ] The City asserts that its fiscal autonomy requires that it have authority to decide for itself what priority to give public health among the other needs of its residents. It seeks a declaration that: 1.

It has the right to withdraw from the Wellington-Dufferin-Guelph Health Unit, which it agreed to join in 1967 on terms that would allow it to withdraw upon giving twelve months’ notice to the other two municipalities and the Provincial Ministry of Health; or 2. The Health Unit may not decide, without Guelph’s consent, to erect a building at a significant cost to the residents of Guelph. [ 4 ] The Board opposes the City’s withdrawal from the Board and the Health Unit.

It argues that the Board, although initially formed by agreement among its member municipalities, was made permanent by Provincial legislation which made boards of health mandatory and continued existing boards, and that the Municipal Act, 2001 now explicitly prohibits any municipality from unilaterally withdrawing from a board of health. [ 5 ] The Board also asserts that it has the right to erect the buildings without the City’s consent, even where its decision imposes a substantial liability upon the City.

It submits that its mandate to do what is necessary to safeguard public health is absolute and not constrained by or subject to budgetary approval by any individual member municipality. [ 6 ] For the reasons that follow, the Board must prevail and the City’s application will be dismissed. The City has submitted that the process provided for by the Health Protection and Promotion Act , designed to ensure that the Board engages the local community and collaborates with municipal councils and local agencies, was not followed in the present case.

The Act requires that this determination be made by assessors appointed by the Minister and not by the court. [ 7 ] The City submits that the Minister refused to appoint an assessor whose duty it would be to determine whether an investigation is warranted into whether the Board complied with guidelines published by the Ministry, which require community engagement and the Board’s collaboration with municipal councils and local agencies.

The Province and Minister are not parties to the present application and the City has not sought judicial review of the Minister’s decision or an order requiring the Minister to appoint assessors. It is not appropriate, in these circumstances, for the court to make a determination as to whether the City is entitled to such a remedy. The dismissal of the City’s application will be without prejudice to its right to apply, if it deems it appropriate, for such relief, on notice to all parties who may be affected.

BACKGROUND FACTS [ 8 ] The Wellington-Dufferin-Guelph Board of Health (“the Board of Health”) is made up of three municipalities, namely, the Counties of Wellington and Dufferin and the City of Guelph. [ 9 ] Historically, the Board of Health has delivered public health services through the Wellington-Dufferin-Guelph Health Unit in buildings operated in each of the three member municipalities.

i) The Health Unit’s Building in the County of Wellington [ 10 ] The County of Wellington built Wellington Terrace where the Board of Health leases space, with no contribution requested from either Guelph or the County of Dufferin. ii) The Health Unit’s Building in Dufferin County [ 11 ] On June 2, 2010, the Board of Health decided to buy land in Dufferin County where it would erect a $4.5 million building from which to operate the Health Unit there, upon satisfying the conditions of the Health Protection and Promotion Act (the “ HPPA ”).

On July 14, 2010, the Board’s Facilities Committee recommended the purchase of a property in Orangeville for this purpose, and on April 6, 2011, the Board of Health decided to buy the land in Orangeville. iii) The Health Unit’s Building in the City of Guelph [ 12 ] Before 2007, the City of Guelph provided a building which the Board shared with the Guelph General Hospital. There were problems with this building and, in 2007, the Board moved to a temporary location in Guelph where it currently operates.

Guelph later made several proposals for a new building which the Board rejected. [ 13 ] On July 27, 2009, the Board made a presentation to Guelph City Council, in which it asked for approval in principle to buy land for a facility in that city in which to operate. Council approved this proposal, subject to the condition that the members of the Provincial Legislature be made aware of the proposal and that there be discussions about the financial implications. [ 14 ] A Board report in the fall of 2009 stated that the Board intended to have the Guelph building funded with infrastructure money.

Originally, Guelph funded 100% of the Board’s infrastructure costs for its Health Unit in Guelph. Later, the Province assumed 75% of these costs. When this Provincial funding is taken into account, Guelph’s share of the operating costs is 11 %. [ 15 ] Beginning in February 2010, the Board asked the Provincial Ministry of Health and Long Term Care to increase its 75% funding to cover the cost of the new building.

[ 16 ] On April 1, 2010, Guelph’s Treasurer, Margaret Neubauer, sent an e-mail to the local Medical Officer of Health, Dr. Mercer, who was Chair of the Board of Health, setting out the conditions which the City required in order to provide funding for a new building on the proposed site. These conditions, which Guelph’s City Council approved on April 26, 2010, included:

a) That the Province and the Counties of Wellington and Dufferin make commitments in writing to fund their respective shares of the land and new facilities;

b) That the Board provide construction costs estimates supported by an objective Needs Feasibility Study; and

c) That the Board provide a business case demonstrating the necessity for and viability of the new project, including the sources of funding for its capital financing and operating costs. [ 17 ] At a meeting with the Board on April 29, 2010, staff from the City of Guelph stated that the City required the collaboration of its funding partners in the Health Unit and an investment case from each of them.

On May 5, 2010, the Mayor told a meeting of the Board’s Facilities Committee that Guelph did not have enough funds to finance its share of the project and questioned the Board’s right to commit its three member municipalities to debt. The Board committed to taking the proposal for the building to each municipality. [ 18 ] On June 24, 2010, the Mayor, the City’s Treasurer, the local Medical Officer of Health, Dr. Mercer, and two members of the Board met with Liz Sandals, the M.P.P. for Guelph. The Mayor told Ms. Sandals that Guelph could not afford to incur debt on its balance sheet for a new facility. Ms.

Sandals informed the Board and the Mayor that the Province would not fund any capital costs and that the municipalities would have to pay the costs of acquisition themselves, whether the land was bought or leased. [ 19 ] At a meeting of the Board’s Facilities Committee on July 14, 2010, Health Unit staff presented a report which stated that the Board currently had 17,500 square feet in Guelph and needed an increase to 45,000 square feet. On September 8, 2010, the Committee and the Board approved this report. Dr.

Mercer later stated that, based on a needs assessment by the Board’s consultants, it actually needed 58,000 square feet in all, for accessibility, staff workstations, and a dental program. [ 20 ] The Facilities Report was given to the four M.P.P.s representing the Health Unit but not to the Councils of the City or of the two Counties. [ 21 ] At the July 14, 2010 meeting of the Facilities Committee, Dr. Mercer informed the Committee that because of the outcome of the June 24, 2010 meeting with M.P.P. Sandals, the Board could not buy land for the proposed facility in Guelph.

She, therefore, recommended that it enter into a long-term lease of land instead from the University of Guelph and erect a new building on the leased land. [ 22 ] In July 2010, the Board decided to lease land from the University and erect a 60,000 square foot building on the land at a cost of $17 million. On October 7, 2010, the Board signed an Offer to Lease the land for 40 years. [ 23 ] In 2011, the Board of Health decided, against Guelph’s wishes, to erect the buildings in Guelph and in Orangeville.

The $17 million building in Guelph and the $4.5 million building in Orangeville will cost, in total, an estimated $22,727,000.00, excluding the cost of leasing the land from the University and the additional operating expenses.

The additional annual operating expenses are expected to be $1.7 million. [ 24 ] In letters dated November 2, 2010 and January 20, 2011, the Minister of Health and Long Term Care, Deb Matthews, stated that the Province was not going to provide capital funding for the Guelph project and was also not going to increase its contribution, at least in 2011, to the Health Unit’s operational funding beyond the 75% provided in recent years. [ 25 ] As a result of a recent change in the accountancy rules applying to municipal finances, municipalities are required to show a land lease and lease of building as a liability on the City’s financial statements.

The City will be required to show its share of the cost of the new buildings as a $12 million liability on its balance sheet. This could result in a down-grading of Guelph’s credit-rating and jeopardize or delay other capital projects, including a public library and a recreation centre, which have long been on Guelph’s agenda and which it believes its residents want. [ 26 ] Guelph’s acting Administrator, Mark Amorosi, at his examination for discovery in this proceeding, stated that if the Province had been prepared to fund the new building, the City would have had no problem with it.

He acknowledged that the debt would have to be shown on the City’s balance sheet, which would affect its AA credit rating and have a significant impact on longstanding projects in Guelph’s capital plan, which included a new library and a recreation center.

Guelph’s staff had previously noted that the public did not know about the proposed new public health building in Guelph, but did know of the library and recreation center projects. [ 27 ] On January 14, 2011, at a meeting of the Facilities Committee of the Board (attended by the Treasurers of the three member municipalities), the City and the Board became aware of the City’s share of the debt that would be incurred for the new building.

That same month, the City’s Treasurer advised the City’s Executive Team that, if the Board proceeded with its plan to lease land and construct a building in Guelph, the City’s share of the expenses would have to be shown as a liability on its balance sheet, which would severely curtail its ability to borrow money to fulfill its capital infrastructure requirements.

After the information emerged as to the impact which the new Health Unit facility would have on the City, its delegates on the Board ceased to participate in further discussions of the project. [ 28 ] On February 2, 2011, the Board issued a press release stating that it had signed a long term lease of the University land and that construction of a new building on the site would begin in the summer of 2011.

At that time, the Board had not yet obtained the consent of the majority of the municipalities within the geographical boundaries of the Health Unit to the acquisition of real property as required by s. 52 of the Health Protection and Promotion Act . [ 29 ] On February 9, 2011, the City advised the Board that it would not be providing any contribution to the capital expenses of the proposed facility. In a letter dated February 14, 2011, the Board advised the City that the Board’s obligations under the Act were

absolute and were not contingent on funding approval by its member municipalities.

It stated that the City did not have the right to withhold its approval of the Board’s budget and that the Board could levy charges against its constituent municipalities for all expenditures, capital or operational, so long as they were necessary in discharging the obligations which the Act imposed on the Board. [ 30 ] The Board did not present its budget to Guelph’s City Council on February 15, 2011, as it had done in previous years, and Guelph did not include any provision for the payment of the Board’s capital expenses in its 2011 budget, which Council approved on March 3, 2011. [ 31 ] On February 28, 2011, Guelph’s City Council passed a resolution asking the Counties of Wellington and Dufferin to join it in opposing the Board’s plans until an agreement with the Province or alternate funding arrangement could be reached.

On the same date, Guelph authorized the commencement of the present proceeding. [ 32 ] On March 8, 2011, the City of Guelph served its Statement of Claim in the present proceeding. A motion by the City for an injunction to stop the building in Guelph was heard March 22, and on March 30, 2011, Justice Fragomeni released a decision granting an interim injunction.

A similar motion by the City for an injunction to stop the building in Orangeville was heard on August 9, and Justice Langdon released a decision the same day dismissing the motion pending the hearing of the present application. [ 33 ] On September 7, 2011, Wellington County’s municipal council passed a resolution giving its consent, if required, for the Board to proceed with its plan for the building projects.

On September 8, 2011, Dufferin County’s municipal council passed a similar resolution. [ 34 ] On April 26, 2011, Guelph City Council passed a resolution directing Guelph to give notice to the Counties of Wellington and Dufferin and the Provincial Ministry of Health and Long Term Care that it intended to withdraw from the Wellington-Dufferin-Guelph Health Unit effective April 30, 2012. [ 35 ] Council additionally directed the Mayor on April 26, 2011 to ask the Ministry to appoint an assessor under s. 82 of the HPPA . The Notice and Request were sent on April 27, 2011.

On May 16, 2011, Minister Matthews sent a letter in which she refused Guelph’s request to withdraw from the Board and declined to appoint an assessor. ANALYSIS AND EVIDENCE What are the Constitutional, legislative, and contractual sources of authority for public health in Wellington-Dufferin-Guelph? (

i) Constitutional Jurisdiction [ 36 ] An understanding of provincial and municipal spheres of responsibility for health care requires the present legislation and the institutional and decision-making regime to be placed in their historical context. Martha Jackman, professor of constitutional law at the University of Ottawa, has written: In the absence of an express grant of legislative authority under the Constitution Act, 1867 , Parliament has relied primarily on its spending and criminal law powers as a basis of federal action in relation to health.

The provinces have intervened broadly in the health care field by virtue of their jurisdiction over “hospitals”, “property and civil rights”, and matters of a “local or private nature” in the province . [Citations omitted] [Emphasis added] [ 37 ] The City does not dispute that all the parties to its application are bodies created by provincial statutes. Although the Province of Ontario is not a party to this application, its right to determine how it will delegate authority as between municipalities and local boards of health is at issue.

The City is challenging the Province’s power to delegate responsibility to local boards, rather than municipalities. [ 38 ] Schneider v. R. involved a constitutional challenge to the British Columbia Heroin Treatment Act .

The Supreme Court held that provisions allowing for the examination, apprehension and detention of drug addicts were part of a valid provincial scheme for medical treatment of drug addiction as a public health problem. [1] Dickson J. stated, in that case: “Th[e] view that the general jurisdiction over health matters is provincial…has prevailed and is now not seriously questioned.” [2] [ 39 ] Section 92(8) of the Constitution Act, 1867 grants the provincial legislatures authority in relation to “municipal institutions in the province.” As Jackman notes in her

article on the constitutionality of health care: While many of the public health problems which municipalities were forced to deal with in the nineteenth century have been largely eradicated, or have become the responsibility of provincial governments, local governments remain active in the field of community health. Local or municipal health boards exist in most provinces, with a mandate to identify community health needs, participate in local health planning, and provide input to provincial ministries of health on local health issues.

Municipal officers of health oversee public health programs and issues in many municipalities. [3] (ii) The Public Health Act [ 40 ] The present organization of institutional decision-making in relation to the delivery of public health programs has evolved over time in response to perceived needs. It cannot be disputed that the public needs, on occasion, transcend municipal boundaries and require a coordinated response by multiple municipalities and public and private agencies, under the general superintendence of the Provincial Ministry responsible for health.

We have seen this most recently in the instance of the SARS epidemic. There is historical evidence that

the very system of boards of health that is in existence today was the response to such epidemics in the past. [ 41 ] Provincial grants to municipalities for health units were established in 1945 and, in 1967, the Public Health Act was amended to require municipalities to provide full-time public health services. This historical sequence suggests that provincial funding, from the outset, went hand-in-hand with the obligation which the Provincial Government’s imposed on municipalities to provide full-time public health services.

It is self-evident that adequate provincial funding is key to ensuring that municipalities can discharge the role that the Province imposes on them without creating an undue strain on their ability to continue discharging the mandate that their constituents have given them to ensure that other municipal needs are met. (iii) The 1967 Agreement [ 42 ] It was also in 1967 that the Corporations of Wellington and Dufferin Counties and the Corporation of the City of Guelph (“Guelph”) entered into an agreement pursuant to the Public Health Act to form the Wellington-Dufferin-Guelph Health Unit (“the Health Unit”) to deliver public health care to their residents (“the Agreement”).

The Agreement was made pursuant to what was then The Public Health Act, R.S.O. 1960,

chapter 321. [ 43 ] The Agreement provided that the Health Unit would be under the management of a Board of Health, and that it be recommended to the Provincial Department of Health that the Board be composed of one member appointed by the Lieutenant Governor in Council, three members appointed by the Corporation of the County of Wellington, two members by the Corporation of the County of Dufferin and three members by the Corporation of the City of Guelph. [ 44 ]

Section 6 of the Agreement provided as follows: 6. This Agreement shall remain in force from year to year, provided that any of the parties may withdraw from the Unit upon twelve months’ notice, in writing, to the other parties and to the Deputy Minister of Health for Ontario . [Emphasis added] [ 45 ] Paragraph 7 of the Agreement provided that any future capital expenditures for land, building or furniture in any of the municipalities would be the responsibility of the municipality concerned and that property so acquired was not to vest in the Health Unit.

In the event of the dissolution of the Health Unit, paragraph 8 provided that the realizable assets of the Health Unit would be distributed among the parties in the ratio of the contribution made by each to the expenses of the Health Unit. (iv) The Health Protection and Promotion Act [ 46 ] In 1967, the Health Protection and Promotion Act ( HPPA ) was drafted: to provide for the organization and delivery of public health programs and services, the prevention of the spread of disease and the promotion and protection of the health of the people of Ontario. [4] The Act was eventually proclaimed in 1983 and was revised in 1997.

Wellington, Dufferin and Guelph accordingly renewed their Agreement in 1997. [ 47 ]

Section 48 of the HPPA states that there shall be a board of health for each health unit.

Section 1 defines “health unit” to mean: “an area that, by or under any Act, is the area of jurisdiction of a board of health”. It defines “board of health” to mean “a board of health established or continued under this Act ” and includes “a… board… prescribed by regulation”. Sections 107 and 108 of the HPPA provide that every health unit and board of health established by or under the Public Health Act , R.S.O. 1980, c. 409, and in existence immediately before July 1, 1984, is continued as a health unit and board of health under the HPPA .

Schedule 39 of Regulation 553 to the HPPA provides that the Wellington-Dufferin-Guelph Health Unit is composed of areas of the County of Wellington (including the City of Guelph) and the County of Dufferin. [Emphasis added] [ 48 ]

Section 49 of the HPPA provides that a board of health is composed of the members appointed to the board under the Act and the regulations. The composition of the Board is elaborated by Regulation 559, R.R.O. 1990 made pursuant to the HHPA , and entitled “ Designation of Municipal Members of Boards of Health ”.

Section 30 of that Regulation provides that the Wellington-Dufferin-Guelph Board of Health shall have eight municipal members, three of whom are to be appointed by Guelph’s Municipal Council. (

v) The 1997 Agreement to Continue the Wellington-Dufferin-Guelph Health Unit [ 49 ] A new Agreement was signed on January 23, 1997. It provided that the parties to the 1967 Agreement wished to continue the Health Unit subject to the terms and conditions of a new agreement.

It constituted the Health Unit in a similar way to the preceding Health Unit, to be managed by a Board of Health, comprised along the same lines as the 1967 Agreement, with 8 representatives from the three municipalities: 3 appointed by Wellington, 2 by Dufferin, and 3 by Guelph, who would have power to levy charges on the Board’s member municipalities in proportion to their respective populations. [ 50 ] Like the 1967 Agreement, the 1997 Agreements gave the right to any of the member municipalities to withdraw from the Health Unit by giving 12 months notice to the other parties and to the Province’s Ministry of Health. [ 51 ] Paragraph 8 provided as follows: 8.

This Agreement shall remain in force from year to year, provided that any of the Parties may withdraw from the Health Unit upon

twelve months notice in writing to the other Parties and to the Minister of Health . [Emphasis added] [ 52 ] As before, in the event of the dissolution of the Health Unit, the assets and liabilities were to be distributed among the Parties in the proportions of their respective contributions to the operation of the Unit, provided for in section 5(1) of the Agreement. Guelph’s contribution to the cost of the Unit’s operations, and its share of assets and liabilities upon dissolution, is 46%. (vi) The Municipal Act, 2001 [ 53 ] In 2001, the Province passed the Municipal Act 2001 , S.O. 2001, c. 25. Section 216(3)(

b) of the Act states that a municipality shall not dissolve or change a board of health as defined by the HPPA . It provides as follows: 216.

(3) Despite subsection (1), a municipality shall not , in accordance with subsection (1), dissolve or change a local board that is, … (

b) a board of health as defined in subsection 1(1) of the Health Protection and Promotion Act . Does the City have the right to withdraw from the Wellington- Dufferin-Guelph Health Unit? [ 54 ] In asserting its right to self-determination in relation to spending for public health, the City relies principally on s. 8 of the Municipal Act, 2001 , which it says confers on it either a right to withdraw from the Health Unit or a veto over any funding decisions by the Board which impose liability on the City. S. 8 provides: 8.

(1) The powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues.

(2) In the event of ambiguity in whether or not a municipality has the authority under this or any other Act to pass a by-law or to take any other action, the ambiguity shall be resolved so as to include, rather than exclude, powers the municipality had on the day before this Act came into force . [Emphasis added] [ 55 ] The City has not pointed to any power it had on the day the Municipal Act, 2001 , was proclaimed that enabled it to withdraw from the Board or to exercise a veto or autonomy in relation to spending on public health.

There is also no ambiguity in s. 216(3) as to whether it permits a municipality to dissolve or change a local board. Does the Board require the City’s approval for entering into the long-term lease of property in Guelph from which to operate the Health Unit? [ 56 ]

Section 92 of the Legislation Act , S.O. 1996, c. 21, restricts the power of corporations created by

an Act, including boards of health, to the power to acquire, hold, and dispose of personal property for the purposes for which the corporation is incorporated. [ 57 ]

Section 52 of the HPPA extended the power of boards of health in relation to property by allowing a board of health to acquire and hold real property for the purpose of carrying out the functions of the board, provided the board has first obtained the consent of the councils of the majority of the municipalities within the health unit served by the board of health. It provides: 52.

(3) A board of health may acquire and hold real property for the purpose of carrying out the functions of the board and may sell, exchange, lease, mortgage or otherwise charge or dispose of real property owned by it. (4) Subsection (3) does not apply unless the board of health has first obtained the consent of the councils of the majority of the municipalities within the health unit served by the board of health. [ 58 ] The City now agrees that the issue of whether the lease of the property in Guelph was an acquisition of real property has become moot since the Counties of Wellington and Dufferin gave their consent on September 7 and 8, 2011, respectively to the purchase of the property in Orangeville and the long-term lease of the property in Guelph. [ 59 ] In any event, I find for the following reasons that the Board’s lease of property from the University of Guelph is an acquisition of real property within the meaning of s. 52 of the HPPA :

a) A leasehold interest is considered to be real property under s. 248(4) of the Income Tax Act, R.S.C. 1985, c. 1 . The Planning Act, R.S.O. 1990, c. P. 13, s. 50(3) treats a lease for more than 21 years to be a conveyance of an interest in real property.

b) At common law, a building that is attached to the land so firmly that it cannot be removed without great damage to the land or building is considered to be affixed to and part of the land. [5]

c) The Assessment Act , R.S.O. 1990, c. A. 31, s. 1(1) includes buildings in the meaning of real property. [ 60 ] The intent of sections 52(3) and (4) is to enable a board of health to incur capital costs for such purposes as acquiring facilities, furniture and equipment that a health unit needs in order to deliver its services. It is self-evident that a health unit needs to incur capital costs for such purposes. It is equally self-evident that it has no reason to incur such costs for other purposes, such as to trade in real estate.

The Board may incur capital costs provided that it obtains the consent of two of its three constituent municipalities. This is sufficient to ensure that the Board is incurring such costs for the proper purposes of the Health Unit and not for an extraneous or improper purpose.

If the Legislature had considered it necessary for the Board to require the consent of every municipality before incurring such costs, or had wished to give any single municipality a veto over the decision to incur them, it would have done so in clear terms. [ 61 ] The City submits that a higher level of consent is still required for an acquisition of property of this nature.

I do not agree, except insofar as the significance of the financial burden which the decision imposes on the City may require the Board to engage in a greater amount of consultation with the City before making the decision. [ 62 ] The Board, in asserting its power to make spending decisions in relation to public health without approval from the city councils of its member municipalities, relies principally on s. 72 of the HPPA . That

section provides as follows: 72.

(1) The obligated municipalities in a health unit shall pay, (

a) the expenses incurred by or on behalf of the board of health of the health unit in the performance of its functions and duties under this or any other Act ; [Emphasis added] [ 63 ] A plain reading of this

section can leave no doubt that the Legislature’s intention was to give the Board power to oblige its member municipalities to pay the expenses it incurs in the performance of its duties. [ 64 ]

Section 72 of the Act sets out the requirement that the municipalities shall pay the expenses of the Board. The expenses must be those necessary for the Board to fulfill its functions. The Board acknowledges that the municipalities are only required to pay those expenses under s. 72 that are necessary for it to fulfill its functions. The Board has decided that it is necessary for it to spend $22 million on the two new buildings. [ 65 ] The Provincial Legislature has empowered health boards to make necessary spending decisions.

The boards do not require the approval of the city councils of their constituent municipalities, except when the decisions entail the acquisition of real property, in which case a board requires the consent of two thirds of its member municipalities. [ 66 ] The City of Guelph argues that empowering the Board to make a decision that will impose substantial liability on the City without requiring the consent of Guelph’s City Council would amount to a usurping of municipal authority and would be anti- democratic. I do not agree. Public health transcends the borders of a single municipality.

It requires the coordination of activity among multiple municipalities and a mobilizing of their collective resources under the superintendence of the Provincial Ministry of Health and Long Term Care. [ 67 ] Municipal governments are created by the legislature; they have only those powers granted to them by the Provincial Legislature. [6] The Provincial Legislature has constituted the Board as an autonomous corporation created by the HPPA , the regulations made under its authority, and the guidelines which the Province has issued, which boards of health are required to follow. [ 68 ] The Minister expressed the over-riding authority that the Province has vested in the Board in her letter dated July 14, 2011, to Guelph’s Mayor.

The Minister wrote: It is the duty of a Board of Health to provide or ensure the provision of the public health programs and services , as required by the Health Protection and Promotion Act (HPPA) and the Ontario Public Health Standards. Part of this responsibility includes setting priorities and determining the appropriate allocation of resources . It would be inappropriate for the Province to direct any Board of Health with respect of capital needs.

These matters are managed by Boards of Health in accordance with the HPPA . [Emphasis added] What is the residual effect of the 1997 Agreement [ 69 ] It does not follow from the enactment of the HPPA and the Municipal Act, 2001 , which removed the right of a member municipality to withdraw from the Health Unit, that the 1997 Agreement has ceased to have any effect.

Rather, the Agreement continues to operate as the basis for allocating financial responsibility among the member municipalities for the expenses of the Health Unit, which now derives its constitution from the HPPA and its permanence from the Municipal Act, 2001 . [ 70 ]

Section 72 of the HPPA provides, in this regard, as follows: 72.(3)The obligated municipalities in a health unit shall pay the expenses referred to in subsection (1) in such proportion as is agreed upon among them. 1997, c. 30, Sched. D, s. 8. [ 71 ] The 1997 Agreement provided as follows: 5.

(1) The Parties agree to pay the following proportions of the total allocation of the Health Unit: Population Percentage Corporation of the County of Dufferin: 40,997 20%

Corporation of the County of Wellington: 69,348 34% Corporation of the City of Guelph: 93,409 46% [ 72 ] The parties agreed that the foregoing percentages, based on the population statistics from the 1995 census, were a fair basis for allocating the Health Unit’s expenses among them. Changes in population can eventually render these percentages obsolete and the allocations unfair.

For this reason, presumably, the parties agreed, in paragraph 8, that the Agreement would remain in force from year to year, provided that any of the parties could withdraw from the Health Unit upon giving twelve months notice in writing to the other parties and to the Minister of Health.

This right ensured that any member municipality who felt disadvantaged by the demographic changes that had occurred in the interval could force a re-allocation of the expenses by its option of withdrawing if it considered the allocation to have become unacceptable. [ 73 ] I interpret paragraph 8, which allows a member municipality to withdraw from the Unit upon giving twelve months notice to its partner municipalities and the Provincial Government, as allowing a member municipality to withdraw from the funding formula, whereupon the funding shall be determined by the regulations passed pursuant to the HPPA .

Section 72 of the HPPA provides, in part, as follows: 72.

(4) If the obligated municipalities in a health unit fail to agree on the proportion of the expenses referred to in subsection (1) to be paid by each of them, each obligated municipality in the health unit shall pay the proportion of such expenses that is determined in accordance with the regulations.

(9) An obligated municipality has all the powers necessary to comply with this section, including the power to enter into and carry out an agreement referred to in subsection (3). 1997, c. 30, Sched.

D., s. 8 [ 74 ] The population statistics from the 2006 census were as follows: Population Percentage Corporation of the County of Dufferin: 54,436 21.4 Corporation of the County of Wellington: 85,482 33.5 Corporation of the City of Guelph: 114,943 45.1 [ 75 ] I interpret the 1997 Agreement to mean that the financial obligations of the three member municipalities should be proportional to their respective populations. The population figures from the 1994 census were used as a reference point because, at the time, that was the most recent data available.

The populations of the three municipalities have grown proportionately and so a significant change would not be required to the percentage of funding allocated to each in order to restore the proportionality of funding responsibility to population. That is, if the funding obligations of the member municipalities were to be based on the population data from the 2006 census, Guelph’s contribution would be 45.1%, rather than 46% as the 1997 Agreement stated it to be.

What is the City’s remedy if the Board fails to consult it fully before making a decision which imposes a significant financial obligation on the City? [ 76 ] The Municipal Act, 2001 , and the HPPA have a combined effect of shifting the locus of decision-making regarding public health from local municipalities to the semi-autonomous boards of health.

The significance of this shift should not be overlooked. [ 77 ] The shift from decision-making by directly elected representatives on city councils to boards made up of their delegates, especially, as in the present case, where the delegates of two municipalities can out-number those of another, has the potential of diminishing the public’s engagement in self-government and undermining the quality of public decision-making. [ 78 ] Municipalities are local democracies.

City councillors are elected by the people, and the court should exercise caution before substituting its views for those of democratically elected representatives. The courts have recognized the increasingly important role played by local governments, and apply a liberal

interpretation of their powers and authority. [7] [ 79 ] The guidelines which the Ministry of Health and Long Term Care have issued for boards of health to follow wisely provide for consultation and collaboration as a means of preventing the disempowerment of municipal councils and local agencies in relation to the decisions affecting their constituents. The effectiveness of this safeguard depends on the quality of ministerial supervision and the remedy of judicial review. [ 80 ] The HPPA empowers the Minister to publish guidelines which boards of health are required to comply with in providing mandatory programs and services to the public.

Section 7 of the HPPA provides: 7.

(1) The Minister may publish guidelines for the provision of mandatory health programs and services and every board of health shall comply with the published guidelines . [Emphasis added]

(2) Guidelines shall be transmitted to each board of health and shall be available for public inspection in the Ministry. [ 81 ]

Section 1 of the Act defines “guidelines” to mean: “guidelines published by the Minister under this Act.”

[ 82 ] The Ontario Public Health Standards are set out on the official web site of the Ontario Ministry of Health and Long Term Care. The introduction to the Standards states: The Ontario Public Health Standards are published as the guidelines for the provision of mandatory health programs and services by the Minister of Health and Long-Term Care, pursuant to

Section 7 of the Health Protection and Promotion Act , R.S.O. 1990, c. H.7 . [Emphasis added] [ 83 ] The guidelines, or standards, require a board of health to consult with its constituent municipalities before making a decision which will affect them. The most recent version of the standards, issued in February 2011, provide, under “Organizational Standards Categories”: 5.

Community engagement and Responsiveness Public health units are expected to undertake their operational duties in a way that demonstrates an understanding of the local community’s context, openness to the community and its needs , and innovation to address emerging needs or gaps in services. [Emphasis added] [ 84 ] The City submits that these standards require the Health Unit, before entering into a long term lease of lands in Guelph and committing the City to undertake a $12 million liability for constructing a building on the lands, to demonstrate that it understands the impact that this would have on Guelph’s need for a public library and recreation centre and its openness to working with the City to find a solution that will enable both bodies, and their respective constituents, either to achieve their objectives or to understand why this is not possible.

e) The City’s remedy in the event of non-compliance [ 85 ] The HPPA provides an assessment process as the principal means for ensuring compliance with the Act, regulations and guidelines. The Act requires the Minister to appoint assessors whose duty it is to consider whether to undertake an assessment of: (

i) whether a board of health is providing the necessary public health services; and (ii) whether it is doing so in compliance with sections 5, 6, and 7 of the Act (providing for mandatory health programs and services, health programs for school pupils and the promulgation of guidelines), the regulations, and the guidelines. [ 86 ] The City complains, in effect, that:

a) the Minister failed to perform her statutory obligation to appoint assessors tasked with deciding whether to undertake an assessment; and

b) the Minister, in making the assessment herself as to whether an investigation should be undertaken, construed the basis for such an assessment too narrowly. [ 87 ]

Section 82 of the HPPA provides, in this regard: 82.

(1) The Minister shall appoint assessors for the purposes of this Act .

(2) An appointment under subsection (12) shall be in writing.

(3) An assessor may carry out an assessment of a board of health for the purpose of , (

a) ascertaining whether the board of health is providing or ensuring the provision of health programs and services in accordance with sections 5, 6, and 7, the regulations and the guidelines ; (

b) ascertaining whether the board of health is complying in all other respects with this Act and the regulations; or (

c) assessing the quality of the management or administration of the affairs of the board of health . [Emphasis added] [ 88 ] The HPPA gives assessors broad powers of investigation, including entering without a warrant any premises occupied by a board of health, conducting an inspection and requiring the production of records. Based on an assessment, the Minister, if she finds that the board has failed to provide a health program or service or comply with ss. 5, 6 or 7 of the Act, the regulations, or the guidelines, may give a board a written direction pursuant to

section 83, requiring it to do or cease doing anything, as the Minister considers necessary or advisable, to correct the failure identified in the direction. [ 89 ] If, in the opinion of the Minister, a board fails to comply with her direction, the Minister may, pursuant to s. 84, do whatever is necessary to ensure that the direction is carried out, including exercising any of the powers of the board or of the medical officer of health of the board, appointing a replacement of the medical officer of health, providing advice and guidance to the board and medical officer of health of the board, and “approving, revoking or amending any decision of the board of health, the medical officer of health of the board, or any person whose services are engaged by the board of health.” [ 90 ] In the present case, Guelph asked the Minister to appoint an assessor.

In a letter dated April 27, 2001, to the Minister of Health and Long Term Care, the Mayor stated: On April 26, 2011, the Council of the City of Guelph passed a resolution requesting that the Ministry of Health and Long Term Care appoint an assessor under

section 82 of the Health Protection and Promotion Act . A copy of the resolution is attached. [ 91 ] The Minister replied to the Mayor in a letter dated May 16, 2011. She does not indicate that she has appointed an assessor. The

City interprets her letter as a refusal to do so. She wrote: Dr. Arlene King, Chief Medical Officer of Health, is not aware of any risks to public health at present and the Ministry is not considering the dissolution of the Wellington-Dufferin-Guelph Board of Health. Unfortunately, we are not able to meet with you at this time.

However, the Ministry will continue to monitor the situation to ensure that the delivery of critical public health services is not compromised, and will act accordingly if it has reasonable grounds to believe that a situation exists that may constitute a risk to the health of the public or to any persons . [Emphasis added] [ 92 ] The City submits that on a plain reading of s. 82 of the HPPA , the Minister is required to appoint assessors. Such appointments are required to be in writing. It says that the Minister has not complied with this statutory obligation.

The effective date of appointment would be the date when the Ministry notified the parties that an assessor has been appointed. [8] The City submits that it has not received such notification and that, to the contrary, the Minister appears to have declined to appoint an assessor. [ 93 ] Where a statute or regulation requires a public official to carry out an action, such as appointing an assessor, it does not thereby empower the official to determine whether there is a factual basis for doing so. In 407 ETR Concession Company v.

Ontario (Registrar of Motor Vehicles) , [9] the Divisional Court stated: The question of whether pre-conditions exist before a public official must carry out an action directed by a statute is not governed by “findings of fact” made by that official. A public body’s discretion does not extend to defining the limits of its own power.

It is the court’s function to ensure the public body does not make decisions based on a misapprehension of jurisdiction. [ 94 ] The Court in 407 ETR Concession Company [10] noted that there are four jurisdictional requirements for mandamus, as described by Laidlaw J.A. in his 1948 decision in Karavos v. Toronto (City) : [11] 1. The applicant must demonstrate “a clear legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced”. 2. The duty must be due and incumbent on the official at the time the relief is sought. 3.

The duty must be purely ministerial in nature – in other words, “plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers.” 4. There must be a demand and a refusal to perform the act which the applicant seeks to have ordered. [ 95 ] In the present case, the City submits that it has a legal right to have assessors, or an assessor, appointed. It says that the Minister’s duty to appoint assessors was purely ministerial in nature and involved no discretionary power to do otherwise.

It says that it asked the Minister to appoint an assessor and that the Minister’s duty to do so was due and incumbent on her at that time. The City submits that the Minister either refused its request or, at least, failed to appoint assessors as required. [ 96 ] The Board argues that to declare that the City has the right to withdraw from the Board would amount to an order in the nature of mandamus, requiring the Crown to amend the regulation made pursuant to the HPPA , to re-constitute the Board. The Board notes that an order in the nature of mandamus is not available against the Crown.

While this is true, the rule does not prevent an order against a minister of the Crown requiring her to carry out a statutory duty imposed on her. [ 97 ] In its 2001 decision in Gleneagles Concerned Parents Committee Society v. BC Ferry Corp. , [12] Maczko J. of the Supreme Court of British Columbia found that the Court had jurisdiction to issue an injunction against an agency of the Crown, although not against the Crown itself. He stated: [12] Historically, agents of the Crown had no immunity from injunctions. Professor H.W.R. Wade, an eminent British scholar, argued persuasively in an

article appearing in 107 L.Q. Rev. 4 on the House of Lords’ decision in Factortame Ltd. v. Secretary of State for Transport , [1990] 2 A.C. 85 , that even Crown ministers do not have Crown immunities where statutes confer powers upon the ministers in their own names and not upon the Crown (pp. 4-6): Principle A It is of primary constitutional importance that ministers should not be confused with the Crown. All the ordinary powers of government, subject to relatively few exceptions, are conferred by statute upon ministers in their own names and not upon the Crown.

The ministers are of course servants of the Crown and exercise their powers as such. But they have never enjoyed the Crown’s immunities. That is why compulsory orders such as mandamus, which do not lie against the Crown, are available against ministers – as for example in Padfield v. Minister of Agriculture and Fisheries [1968] A.C. 997 .

The practice of granting powers to ministers rather than to the Crown has the great virtue that it prevents the Crown’s immunities from obstructing the operation of the rule of law and the effectiveness of remedies against the state….Neglect of the principle would inevitably cripple administrative law and have grave constitutional consequences. [13] [ 98 ] The City’s position is, essentially, that s. 82 of the HPPA requires an assessor, not the Minister, to decide whether an investigation should be undertaken as to whether a board is providing the required services and, in doing so, is complying with the Act, regulations, and guidelines.

It submits that the Minister’s letter suggests that she has made this assessment herself rather than appointing assessors with an independent mandate to do so and report to her. [ 99 ] The concerns which the Mayor set out in her letter include, but extend beyond, the mere fact that the Board made a decision to build the new facilities without the City Council’s consent. In requesting the appointment of an assessor, the Mayor set out the following concerns, among others: 1. The Board has, without the consent of the Council of the City of Guelph , and without consultation with other service providers

and stakeholders, determined to centralize services in a new facility . All discussions about this new facility were held in closed session with no opportunity for public input . 2. The Board is not providing for the management of health programs and services in accordance with the Ontario Public Health Standards (2008) which forms the pillars of effective public health planning, delivery, management and evaluation. Specifically, the OPHS Foundational Principles state that: Effective public health programs and services take into account the communities’ needs, which are influenced by the determinants of health.

As well, an understanding of local public health capacity and the resources required, including collaboration with partners to achieve outcomes, is essential for effective management of programs and services. The standards are: Need, Impact, Capacity, Partnership and Collaboration. (

a) Regarding the standard of need, there is no evidence of community engagement, consultation or collaboration by the Board or management with local community partners, citizens and government in the

interpretation and prioritization of local programs and service needs and their delivery in the development of the Board’s 2011 Strategic Plan which was approved March 9, 2011. Accessibility and priority groups are absent from the available documentation regarding the strategic planning process. ....

c) With regard to capacity, there appears to be limited involvement of representatives on the Board in the strategic planning process. Minutes document discussion at Board meetings on February 2, 2010, June 2, 2010 and December 1, 2010, with a presentation at the February 16, 2011, meeting and approval at the March 9, 2011, meeting. There appears to be limited involvement of the Board in discussing the financial resources required to ensure the organizational structures, workforce and maintenance of the health unit as it grows into the new centralized facility …. 3.

The Board has made a financial commitment for capital expenses which will significantly increase the City’s contribution to the Board, without consultation with City Council. The Board has not considered the City’s objections to these expenses and has proceeded with its plans . The board refused to present its budget and its plans to Council in February 2011 thereby eliminating an important opportunity for council to engage the Board in a public discussion regarding the proposed capital expenditures. … 5.

The City of Guelph councilors who are members of the Board have been marginalized in that role due to the fact that the other members of the Board consistently hold a majority of the votes . [ 100 ] The obligation on the Board is not only to safeguard public health but to do so in accordance with the HPPA , regulations, and guidelines.

An assessor, when considering whether to undertake an assessment, must consider whether there are reasonable grounds to suspect either that there are risks to public health or that the Board is not complying with the Act, regulations, and guidelines which the Ministry has published for the Board to follow. [ 101 ] Based on the foregoing, the City, in effect, submits that:

a) the Minister failed to perform her statutory obligation to appoint assessors tasked with deciding whether to undertake an assessment; and

b) the Minister, in making the assessment herself as to whether an investigation should be undertaken, construed the basis for such an assessment too narrowly. [ 102 ] The test for whether guidelines or other instruments authorized under a statute create subordinate legislation with the force of law is set out in Friends of the Oldman River Society v. Canada (Minister of Transport) [14] .

In Oldman River , the court considered an application brought by a third party seeking an order for certiorari and mandamus to require the Minister of Transport and the Minister of Fisheries and Oceans to conduct an environmental assessment in accordance with the federal Environmental Assessment and Review Process Guidelines Order (the “Guidelines”) for a dam being constructed on the Oldman River in Alberta. In determining whether the guidelines were, in fact, subordinate legislation, the Supreme Court formulated a two-step analysis.

First, the statutory scheme is scrutinized to determine whether the enabling statute is capable of supporting a power to create subordinate legislation. Second, the guideline or other instrument is scrutinized to determine if it is mandatory. [ 103 ] Whether or not the statute supports the creation of subordinate legislation is a question of legislative intent. Regard must be had to the wording of the authorizing provision as a whole.

The use of the term “guidelines” alone is not determinative. [15] Guidelines issued in a legislative capacity or through a quasi-legislative process will generally support the argument that the legislature intended to allow for the creation of subordinate legislation. [16] In the present case, s. 7 of the HPPA provides that every board of health shall comply with the published guidelines, and s. 83 specifically empowers the Minister to issue directions to a board if an assessor finds, from an investigation of its activities, that the board has failed to follow the guidelines. [ 104 ] The Board has pointed to evidence of ongoing consultation between the local Medical Officer of Health and the members of the Board in arriving at and pursuing the Board’s decision to acquire land in Orangeville and Guelph and erect buildings there.

As to whether this consultation took into account the impact that the Board’s proposed building projects would have on Guelph City Council’s ability to meet its community’s other needs and whether the Minister considered this in arriving at her decision not to intervene is beyond the scope of the issues which the court has been asked to address in this application.

The City has asked the Minister to appoint an assessor because the HPPA provides that it is an assessor, and not the Minister, who must decide whether the facts contained in the City’s complaint warrant investigation and, if they do, who must conduct an investigation and report to the Minister.

CONCLUSION AND ORDER [ 105 ] For the reasons stated above, I find that the City does not possess the power either to withdraw unilaterally from the Board or to veto the Board’s decisions, even when they have the effect of imposing significant financial obligations on the City. [ 106 ] As noted above:

a) Sections 48 , 107 , and 108 of the HPPA continue the Wellington-Dufferin-Guelph Board of Health, whose composition is established by s. 52(1) of the HPPA.

b) Regulation 559 continues the Health Unit, whose composition is now established by

Schedule 30 to Ontario Regulation 553 . c) Section 216(3) (

b) of the Municipal Act, 2001 , prohibits any member municipality from dissolving or changing either the Board or the Health Unit. [ 107 ] I agree with Justice Langdon where he held in paragraphs 4 and 5 of his endorsement, dated August 9, 2011, that the City of Guelph cannot terminate its membership in the Health Unit or change the composition of the Board by withdrawing from the 1997 agreement. The City does not argue that it can unilaterally dissolve the Board, but submits that a necessary incident to its withdrawal from the Health Unit would be dissolution of the current Board. I disagree.

The HPPA continues the provision that the municipalities can make agreements regarding the proportions each shall contribute to the expenses of a health unit set out in ss. 72(1) and (2) , and if they cease to agree, the result is a reversion to the funding formula provided for by s. 72(4) of the HPPA and the regulations. [ 108 ] In light of s. 8 of the Municipal Act, 2001 , the case law, and the Organizational Standards , I interpret this

section to mean that the Board is authorized to decide what programs and services are necessary for it to provide, subject to the right of the municipalities affected to challenge such decisions by the usual remedy of judicial review, to ensure that the Board has acted properly within the scope of its statutory authority. [ 109 ] The City has submitted that the Board must justify its expenditures to the Councils of the obligated municipalities.

I agree that the Board must be transparent in providing the necessary information to the municipalities to enable them to assess the reasonableness of the expenses and, if necessary, to challenge the Board’s decision in the courts. This does not, however, empower each individual municipality affected to veto the Board’s decision.

Such a veto would undermine the mechanism which the HPPA has established for the Board to secure the consent of a majority of the affected municipalities through the votes by their delegates on the Board. [ 110 ] The HPPA , in constituting boards of health, supersedes the agreements which the parties entered into in 1967 and 1997. A constituent municipality does not derive power from these agreements to force the dissolution of a board of health that has been constituted by statute.

The 1997 Agreement provides a funding formula that, while it prevails by continued agreement, is binding. [ 111 ] The City has submitted that the Province, by refusing any additional funding either through a base budget increase or a contribution to capital expenses for these two capital facilities, has expressed its opinion that the additional expenses are unnecessary for the Board to fulfill its functions. Even if the Province’s refusal were to be interpreted in this manner, it would not be determinative of whether the expenses were, in fact, necessary.

That is a determination properly made by the Board itself, subject to the superintendence of the Minister, who will intervene as necessary by giving directions to the Board, based on the results of any investigation which her assessors deem appropriate where they conclude that there are reasonable grounds to suspect that a Board has either not provided necessary public health programs or has not conformed to the Act, regulations and guidelines. [ 112 ] This decision should not be interpreted as a finding either that the Board’s decision to undertake its capital projects was proper or supportable in law or not.

The City has not sought judicial review of either the Board’s decision to undertake its capital projects or of the Minister’s decision not to appoint an assessor. Nor has the City sought an order in the nature of mandamus to require the Minister to appoint assessors to make this determination. [ 113 ] The essence of the City’s argument is that the Board has acted unfairly in imposing a levy on it for the proposed building projects. Since the Wellington-Dufferin-Guelph Health Unit was established in 1967, the City of Guelph has tripled in size.

Financial accountability of its municipal council requires it to give value for the money it is spending. This entails explaining to the public why its money was spent and satisfying the public that it was spent on the right things. The only way in which Guelph’s municipal council can do this in relation to the spending decisions of the Board, on which its delegates do not always hold the balance of power, is for the Board to consult fully with Guelph’s city council and other local stakeholders.

The HPPA has given the Minister responsibility, through the mechanism of assessors, to ensure that this is done. [ 114 ] It is not disputed that the Public Health Unit needed facilities in Orangeville and Guelph from which to deliver its services. All the parties believed, up until June 2010, that the Province would contribute a share. The City made it clear it did not have the money. It wanted to know the Province’s position on funding and it learned at the June 24, 2010 meeting that there would be no additional money from the Province to finance the cost of the buildings.

The Board continued to pursue its plan and no one disputes that it had an obligation to do what is necessary to fulfill its mandate to safeguard public health.

However, the members of the Board are deeply divided in their views on the priority to be given to the projects in relation to the other needs that the City has identified for a public library and recreation centre, and on the impact that the projects may have on the City’s ability to live up to its commitments to its citizens. [ 115 ] In these circumstances, public education performs an important role, and the City requires the engagement of the Board in this function as much as the Board requires the City’s resources to erect the buildings it needs to deliver its services.

Guelph does not have a veto over the Board’s decision to erect the buildings. However, collaboration in this type of organization, formed by a partnership of three municipalities, requires consultation and collaboration to achieve a common goal. A majority vote of the Board is no adequate substitute.

[ 116 ] The City interprets s. 72 of the HPPA to impose a requirement on the Board to demonstrate that it followed the Ministry’s standards in the process of determining the amount that the board says is necessary for the purpose of delivering its services. It says that if the Board fails to do so, by failing to engage constructively with the stakeholders, including the City, then the City is entitled to refuse to fund the expenses.

The City takes this position, in my view, because it says that the Minister herself has not followed the process provided for in the HPPA by appointing assessors under s. 82 to make an independent determination as to whether an investigation is warranted and, if it is, to conduct such an investigation and report to the Minister, who can then issue directions, if necessary, pursuant to s. 83 to repair the dysfunction in the Board’s operation. [ 117 ] The City’s loss of confidence in the process has caused it to seek to assert its own autonomy by either withdrawing from the Board or exercising a veto over the Board’s decisions.

It is open to the City to apply, on proper notice to all parties who may be affected, for a determination as to whether the regime established by the Act has not been implemented to deliver either a consensus among the stakeholders or, at least, an understanding among them as to why the City’s library and recreation centre are being delayed to accommodate a public health facility that requires a higher priority, in the interests of the citizens of the entire region. [ 118 ] Based on the foregoing, it is ordered that: 1. The City’s application for a declaration is dismissed. 2.

The dismissal of the City’s application is without prejudice to its right to apply, if so advised, for judicial review of the Board’s decision, or of the Minister’s refusal to appoint assessors, and for an order in the nature of mandamus to require the Minister to appoint such assessors. [ 119 ] If the parties are unable to agree on costs, the Board and Counties of Wellington and Dufferin shall make written submissions, not to exceed two pages each, in addition to a Costs Outline from each, by October 21, 2011.

The City may reply with submissions, also not to exceed two pages, with a Costs Outline, by October 31, 2011. ___________________________ Price J. Released: October 12, 2011 CITATION: City of Guelph v. Board of Health, 2011 ONSC 5981 COURT FILE NO.: 173/11 DATE: 2010-10-12

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: THE CORPORATION OF THE CITY OF GUELPH Plaintiff - and – BOARD OF HEALTH FOR THE WELLINGTON-DUFFERIN-GUELPH HEALTH UNIT and THECORPORATION FOR THE COUNTY OFWELLINGTON and THE CORPORATION FORTHE COUNTY OF DUFFERIN Defendants REASONS FOR ORDER Price J. Released: October 12, 2011 [7] Shell Canada Products Ltd. v. Vancouver, (SCC), [1994] 1 S.C.R. 231: Fourth Generation Realty Corp. v. Ottawa,[2004] ON.C. LEXIS 3372 (Ont. S.C.J.). [14] (SCC), [1992] 1 S.C.R. 3, [1992] S.C.J. No. 1