City Council's Costly Legal Battles

By Ed Corrigan

Published in Your Village News, August 11, 2006

There are many legal questions which confront City Council. For example over the past few years there have been many turnovers in senior City management. Another legal controversy arose over a bylaw to control the cosmetic use of pesticides was considered by Council in 2001. The Supreme Court of Canada ruled in Hudson that municipalities had the legal authority to restrict the cosmetic use of pesticides. Council also had many legal opinions supporting a municipality's legal authority to enact a pesticide bylaw. The contrary legal opinion provided to Council by staff did not make sense. Ontario Courts later upheld the right of Ontario municipalities to ban the cosmetic use of pesticides. This issue has finally been settled and a bylaw to restrict the cosmetic use of pesticides has been adopted by Council.

There also have been many legal disputes over zoning of land. Land owners, and even citizen groups like Imagine London, have gone to the Ontario Municipal Board to challenge decisions made by London City Council. There are numerous instances where the City has lost these battles and been held responsible for paying a substantial amount of legal costs.

City Council is currently embroiled in a costly legal battle with RSJ Holdings over what started out as an attempt by the City to freeze development for one year on Richmond Street. The developer bought land that allowed the building of a fourplex. Concerns from the neighbourhood over student housing led to an interim control bylaw being imposed. In arguing the case City Solicitor Jim Barber described interim control bylaws as "draconian."

The impact on an owner who buys property with specific zoning and then has a development freeze imposed after the fact hurts the property value and the rights of the owner. The issue, however, was debated and voted by City Council behind closed doors. The Ontario Municipal Act states that all matters "shall" be open to the public unless they fall under narrowly defined exceptions. The exceptions are property matters being looked at for purchase, employment matters where an identifiable individual was involved, and litigation or legal matters covered under solicitor client privilege.

RSJ Holdings challenged the Interim Control Bylaw arguing that it was not debated and voted on in public as required by law. The Ontario Superior Court upheld the City's position that this was a potential litigation matter and therefore fell under the litigation exemption. RSJ Holdings appealed.

The Ontario Court of Appeal overturned the lower court decision. They held that attaching a legal report to a document "does not operate to cloak all of the documents with privilege." The Court of Appeal held that in terms of law that all matters before Council must be debated and voted on in public. Only those matters that met the narrowly defined exemptions set out in the Ontario Municipal Act should be considered in secret.

Openness and transparency are the hallmarks of democracy. This principle applies to all decisions that would affect any individual, including developers. Only property purchase matters, personnel matters and narrowly defined legal matters should be not open to the public. The Court of Appeal decision was based on sound principles.

The City has appealed the case to the Supreme Court of Canada. This issue is not yet over. However, an important question is how much is this going to cost. It was reported in the London Free Press that a $545 per hour lawyer has been hired to fight the case and more than $300,000 has already been spent. Expenses will surely mount in this case. One has to wonder if this legal battle, to limit pubic access to City Council's decision making, is worth the tremendous cost to the City of London taxpayers.

Ed Corrigan is certified by the Law Society of Upper Canada as a Specialist in Citizenship, Immigration Law and Refugee Protection and his office is located at 383 Richmond St. Suite 902, London, Ontario. Tel. 519-439-4015. He can also be reached at corriganlaw@linkd.net.

677 words. July 30, 2006 version.