1515545 Ontario Ltd. et al. v. Niagara Falls (City) et al., (2006) 206 O.A.C. 219 (CA)

• Judge: Weiler, Rosenberg and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 01, 2005
• Jurisdiction: Ontario
• Citations: (2006), 206 O.A.C. 219 (CA)

1515545 Ont. v. Niagara Falls (2006), 206 O.A.C. 219 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. JA.040

1515545 Ontario Limited carrying on business as Fasinations, Paul Moberly and Gabriella Majoros (appellants) v. The Corporation of the City of Niagara Falls, The Regional Municipality of Niagara Police Services Board and Niagara Police Officer Todd Anderson (respondents)

(C43535)

Indexed As: 1515545 Ontario Ltd. et al. v. Niagara Falls (City) et al.

Ontario Court of Appeal

Weiler, Rosenberg and LaForme, JJ.A.

January 12, 2006.

Summary:

The plaintiffs sued the city, seeking both a declaration that a bylaw was invalid as a colourable attempt to prohibit body rub parlors and damages with respect to the enforcement of the bylaw. The plaintiffs also alleged that the bylaw violated ss. 8 and 9 of the Charter. The defendants brought a motion for summary judgment.

The Ontario Superior Court, in a decision reported at [2005] O.T.C. Uned. 333, granted the motion, dismissing the plaintiffs' claims. The plaintiffs appealed.

The Ontario Court of Appeal allowed the appeal regarding the validity of the bylaw and s. 8 of the Charter. The balance of the appeal was dismissed.

Civil Rights - Topic 1209

Security of the person - General - Detention and imprisonment - A city passed a bylaw providing for the regulation and inspection of body rub parlors - The plaintiffs sued the city, the Police Services Board and a police officer, seeking, inter alia, damages for unreasonable searches and seizures (Charter s. 8) and detentions (Charter s. 9) - The city obtained summary judgment dismissing the plaintiffs' action - The plaintiffs appealed - The Ontario Court of Appeal allowed the appeal regarding s. 8 - The bylaw authorized warrantless searches that were presumptively unreasonable - Damages might be available under s. 24(1) against the city for violating Charter rights through enacting unconstitutional legislation - The plaintiffs had adduced sufficient evidence to raise a triable issue regarding the bylaw's constitutionality - It was open to them to rely on that evidence to show that the city had acted in bad faith or had abused its power - If so, they might be entitled to damages for a s. 8 violation - The bylaw did not on its face authorize detention - If the plaintiffs' s. 9 claim was based on the way the bylaw was enforced, that was a matter between the plaintiffs and the defendants other than the city - The motions judge was correct to strike the s. 9 claim - See paragraphs 50 to 55.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Civil Rights - Topic 1209 ].

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - [See Civil Rights - Topic 1209 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - A city passed a bylaw providing for the regulation and inspection of body rub parlors - The plaintiffs sued the city, the Police Services Board and a police officer, seeking, inter alia, a declaration that the bylaw was of no force and effect because it authorized unreasonable search and seizure (Charter s. 8) and arbitrary detention (Charter s. 9) - The city obtained summary judgment dismissing the plaintiffs' action - The plaintiffs appealed - The Ontario Court of Appeal allowed the appeal regarding s. 8 - On its face, the bylaw appeared to authorize a warrantless entry and inspection - If so, it was presumptively unreasonable - The city had adduced no evidence to rebut the presumption - The motions judge erred in striking out the s. 8 claim - The bylaw did not on its face authorize arbitrary detention - If the plaintiffs' s. 9 claim was based on the way the bylaw was enforced, that was a matter between the plaintiffs and the defendants other than the city - The motions judge was correct to strike the s. 9 claim - See paragraphs 50 to 55.

Constitutional Law - Topic 2561

Determination of validity of statutes or acts - Evidence and proof - General - [See Constitutional Law - Topic 2701 ].

Constitutional Law - Topic 2586

Determination of validity of statutes or acts - Extrinsic aids in determining legislative subject matter - Extrinsic materials - [See Constitutional Law - Topic 2701 ].

Constitutional Law - Topic 2701

Determination of validity of statutes or acts - Colourability - General - A city passed a bylaw providing for the regulation and inspection of body rub parlors - The plaintiffs sued the city, seeking, inter alia, a declaration that the bylaw was ultra vires because it was in pith and substance criminal law - The city obtained summary judgment dismissing the plaintiffs' action - The plaintiffs appealed - The Ontario Court of Appeal allowed the appeal regarding the validity of the bylaw - The plaintiffs' allegation rested primarily on extrinsic evidence of municipal intent and enforcement implications - Evidence included the fact that an earlier body rub parlor bylaw was declared invalid, statements by a clerk that the city wanted to get rid of body rub parlors, and letters from the mayor that reaffirmed the clerk's evidence - The city's argument that the courts had consistently upheld similar bylaws failed to rebut the plaintiffs' evidence regarding invalid purpose - Although a trial judge might find that there was insufficient evidence of colourable purpose, there was a triable issue - See paragraphs 22 to 40.

Constitutional Law - Topic 2950

Determination of validity of statutes or acts - Pith and substance - General principles - [See Constitutional Law - Topic 2701 ].

Municipal Law - Topic 1496

Powers of municipalities - Particular powers - Licensing and regulating of businesses (incl. adult entertainment) - [See Constitutional Law - Topic 2701 , Municipal Law - Topic 1702 and Torts - Topic 5242 ].

Municipal Law - Topic 1702

Liability of municipalities - General and definitions - "Misfeasance" defined - A city passed a bylaw providing for the regulation and inspection of body rub parlors - The plaintiffs sued the city, seeking, inter alia, damages for misfeasance in a public office, alleging that the city had waged a campaign to shut down the plaintiffs' business - The city obtained summary judgment dismissing the plaintiffs' action - The plaintiffs appealed, submitting that the motions judge failed to consider evidence of intent - The Ontario Court of Appeal allowed the appeal in part - The tort action was dismissed - Unlawful conduct in this context might have arisen from (i) direct breach of a statute or (ii) acting in excess of powers granted or using a valid power for an improper purpose - The plaintiffs' evidence in support of establishing unlawful conduct was no more than bald allegations and innuendo - The plaintiffs failed to produce evidence showing a triable issue - See paragraphs 41 to 46.

Municipal Law - Topic 1704

Liability of municipalities - General and definitions - Bad faith - [See Municipal Law - Topic 1702 ].

Municipal Law - Topic 1706

Liability of municipalities - General and definitions - Liability for ultra vires actions - [See Municipal Law - Topic 1702 ].

Municipal Law - Topic 3803

Bylaws - Quashing bylaws - General - Excess of powers - [See Constitutional Law - Topic 2701 ].

Municipal Law - Topic 3842

Bylaws - Quashing bylaws - Grounds for judicial interference - Ultra vires - [See Constitutional Law - Topic 2701 ].

Municipal Law - Topic 3844

Bylaws - Quashing bylaws - Grounds for judicial interference - Invalid purpose - [See Constitutional Law - Topic 2701 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Constitutional Law - Topic 2701 ].

Practice - Topic 5705

Judgments and orders - Summary judgments - Requirement that question at issue be beyond doubt - [See Constitutional Law - Topic 2701 ].

Practice - Topic 5716

Judgments and orders - Summary judgments - Setting aside - [See Constitutional Law - Topic 2701 ].

Torts - Topic 5242

Interference with economic relations - Interference with business relations - What constitutes - A city passed a bylaw providing for the regulation and inspection of body rub parlors - The plaintiffs sued the city, seeking, inter alia, damages for intentional interference with economic interests, alleging that the city had waged a campaign to shut down the plaintiffs' business - The city obtained summary judgment dismissing the plaintiffs' action - The plaintiffs appealed, submitting that the motions judge failed to consider evidence of intent - The Ontario Court of Appeal affirmed the dismissal of the tort action - To establish the tort, the plaintiffs had to prove (i) intent, (ii) that there was interference by illegal or unlawful means and (iii) economic loss as a result - The plaintiffs' evidence in support of establishing illegal or unlawful means was no more than bald allegations and innuendo - The plaintiffs failed to produce evidence showing a triable issue - See paragraphs 47 and 48.

Torts - Topic 9152

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Administrative misfeasance and nonfeasance - [See Municipal Law - Topic 1702 ].

Cases Noticed:

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 7].

Gutierrez v. Tropic International Ltd. et al. (2002), 162 O.A.C. 247; 63 O.R.(3d) 63 (C.A.), refd to. [para. 18].

R. v. Morgentaler, [1993] 3 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 25].

Rio Hotel Ltd. v. Liquor Licensing Board (N.B.), New Brunswick (Attorney General) and Saskatchewan (Attorney General), [1987] 2 S.C.R. 59; 77 N.R. 104; 81 N.B.R.(2d) 328; 205 A.P.R. 328, refd to. [para. 26].

Global Securities Corp. v. British Columbia Securities Commission et al., [2000] 1 S.C.R. 494; 252 N.R. 290, refd to. [para. 27].

Ontario Adult Entertainment Bar Association v. Metropolitan Toronto (Municipality) (1995), 86 O.A.C. 161; 26 O.R.(3d) 257 (Div. Ct.), affd. (1997), 104 O.A.C. 113; 35 O.R.(3d) 161 (C.A.), leave to appeal refused [1997] S.C.C.A. No. 594, refd to. [para. 27].

Kovinic v. Niagara Falls (City), [1999] O.T.C. 251; 3 M.P.L.R.(3d) 285 (Sup. Ct.), refd to. [para. 31].

Pimenova et al. v. Brampton (City), [2004] O.T.C. 492 (Sup. Ct.), refd to. [para. 36].

R. v. Theofilaktidis, [2004] O.J. No. 5968 (Sup. Ct.), refd to. [para. 36].

R. v. Musiej, [2003] O.J. No. 5783 (Sup. Ct.), refd to. [para. 36].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 43].

Reach M.D. Inc. v. Pharmaceutical Manufacturers Association of Canada (2003), 172 O.A.C. 202; 65 O.R.(3d) 30 (C.A.), refd to. [para. 43].

Three Rivers District Council et al. v. Bank of England, [2000] 3 All E.R. 1; 257 N.R. 1; [2000] 2 W.L.R. 1220 (H.L.), refd to. [para. 44].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97, refd to. [para. 51].

Comité paritaire de l'industrie de la chemise v. Potash et Sélection Milton, [1994] 2 S.C.R. 406; 168 N.R. 241; 61 Q.A.C. 241; 91 C.C.C.(3d) 315, refd to. [para. 52].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 209 D.L.R.(4th) 564, refd to. [para. 53].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (2004 Looseleaf Update), pp. 15 to 18 [para. 25].

Counsel:

David H. Stratas, Guy Ungaro, and Brad Elberg, for the appellant;

George H. Rust-D'Eye, for the respondent, The Corporation of the City of Niagara Falls.

This appeal was heard on November 1, 2005, by Weiler, Rosenberg and LaForme, JJ.A., of the Ontario Court of Appeal. LaForme, J.A., released the following judgment for the court on January 12, 2006.