Appeals and Judicial Review

• Author: Howard Epstein
• Pages: 432-466

432

CHA PTER 9

APPEALS AND

JUDICIALREVIEW

A. PRELIMINARY1

In this chapter, we examine more generally the functioning of admin-

istrative law in the land-use context. Broadly, there are two aspects: ap-

peals, which tend to focus on the plan ning merits of the decision under

scrutiny, and judicial review, which tends to focus on the legality of the

decision, with legality bei ng broadly understood.

Any right to an appeal must be cre ated by statute. Appeals are usual-

ly taken to a specialized body such as the Ontario Municipal Board

(OMB) or the Nova Scotia Utility and Rev iew Board (NSUARB). Judicial

review is a function of the superior courts and is an inherent court

power. There is merging of the focus of appeals and judicial rev iew,

with legality being a relevant question for some appeals and the overall

merits of the decision becoming a relevant question in judicial review

as an aspect of the rea sonableness of the decision under scrutiny.

1 This chapter an d the immediately precedi ng one take up the focus on admin-

istrative l aw matters, which has been i nherent in many of the other chap ters.

Basic text s include Gus Van Harten et al, Administrative L aw, 7th ed (Toronto:

Emond Montgomery, 2015); David P Jones & Anne S deVillars, Pr inciples of

Administrative Law, 6th ed (Toronto: Carswell, 2014); Colleen M Flood & Lorne

Sossin, ed s, Administrative Law in Context, 2d ed (Toronto: Emond Montgomery,

2013); Lord Woolf et al, De Smith’s Judicial Review, 6th ed (London: Sweet &

Maxwell, 2 007).

Appeals and Jud icial Review 433

Appeal and judicial review are to be regarded as part of the admi n-

istrative accountability of government, especially local government.2

Political accountability is often recogni zed as a prime form of account-

ability, tied to an idea of democracy and express ed f‌irst through per-

iodic elections. But f‌inancial probity, administr ative rationality, and

legality are all other forms of accountability.

This chapter focuses f‌ir st on accountability through the mecha nisms

for appeals, a process that gr apples with the merits of the decision under

consideration. It focuses next on legal accountability, that is, the ac-

countability “of public bodies to courts in order to ensure that they keep

within the li mits of the jurisdictional authority conferred upon them.”3

As was said by the Supreme Court of Can ada in Dunsmuir v New Bruns-

wick: “The function of judicial review is t herefore to ensure the legality,

the reasonableness and t he fairness of the administrative proces s and its

outcomes.”4

Fairness ha s been examined in Chapter 8. Here we take up cases

that deal with i ssues such as bad faith (HG Winton Ltd v North York

(Borough)),5 unrea sonableness (Canadian National Railway Co v Fraser-

Fort George (Regional District)),6 vaguene ss (Canada Post Corp v Hamilton

(Ci t y)),7 discrimination (Scarborough (Township) v Bondi),8 procedural

issue s (Hubbard v West Vancouver (District),9 Action Council of Reasonable

Neighbours v Edmonton (City)),10 the exercise of discretion for an im-

proper purpose (Roncarelli v Duplessis),11 the use of irrelevant consider-

ations/failure to consider relevant consider ations (Oakwood Development

Ltd v St-François Xavier (Rural Municipality)),12 and illegality (Blainville

(Ville de) c Beauchemin).13 To some extent, the categories of attack on

decisions overlap.14

2 See, generally, Mart in Loughlin, Administrative Account ability in Local Govern-

ment (York, UK: Rowntree Found ation, 1992).

3 Ibid at 2.

4 2008 SCC 9 at para 28 [Dun smuir].

5 (1978), 20 OR (2d) 737 (Div Ct) [HG Winton].

6 (1994), 24 MPLR (2d) 252 (BCSC) [CNR].

7 2015 ONSC 3615.

8 [1959] SCR 444 [Bondi].

9 2005 BCCA 633.

10 2003 ABQB 895.

11 [1959] SCR 121 [Roncarelli].

12 [1985] 2 SCR 164 [Oakwood Develo pment].

13 (2003), 44 MPLR (3d) 24 (Que CA).

14 Early art icles on the topic exist, though t hey are, for the most part, ser iously

dated. See, for ex ample, Eric L Todd, “The Quashing and Attack ing of Munici-

pal By-laws” (1960) 38 Canadian Bar Re view 197; G Keith Allen, “Attacki ng By-

laws” (1971) 21 University of New Brun swick Law Journal 1; Ann McDonald, “In

LAND-USE PLANNING434

A penetrating crit ique has been made of both land-use planni ng (“the

pervasive practice of ad hocery”) and of the courts’ dealings w ith land-

use matters in admi nistrative law. (“The courts have made it clear t hat

law is mandatory wh ile policy is discretionar y, but they seem to have

diff‌iculty dist inguishing one from the other.”)15 Professor (as he then

was) Ed Morgan challenges both planning, as it is manifested in local

government decision-making, and the st ruggles of the courts in deciding

when to intervene, linking t he problems as due to violation of the rule

of law: “The rule of law — ‘open, stable, clear, and general rules, [with]

even-handed enforcement of those laws’ — cannot be satisf‌ied by a d isci-

pline based on little more than ideology and taste.”16 As for the courts:

It is simply not possible to determ ine whether the local authorit y

“has taken into cons ideration matters which were not proper to be

regarded, or has omitte d to consider matters which were of di rect

importance,” since there are no ag reed upon criteria wh ich span the

potentially applic able planning approaches. The cr iteria are inher-

ently subjective in ever y sense of the term.17

We have seen examples of this diff‌iculty throughout our examination

of cases and statutes. Thus in Bondi18 the Supreme Court of Canada ac-

cepted that in zoning, “arbitrar y” lines could be drawn such that “On

one side of an arbitrary line an ow ner may be prevented from doing

something with hi s property which another owner, on the other side

of the line, with a property which corresponds in all respects except

location, is free to do.” In Soo Mill & Lumber Co v Sault Ste-Marie (City),19

it was accepted that holding zones might be put in place, with no set

criteria for when or how to decide to remove them. In Montréal (City)

v Arcade Amusements Inc,20 it was accepted that municipalities could

make some distinction s between classes of uses but not others, without

a def‌inite idea of how to identify what dist inctions are legitimate. In

the Public Intere st: Judicial Review of Loca l Government (1983) 9 Queen’s Law

Journal 62. For a mode rn account, see George Rust-D’Eye et al, Ontar io Munici-

pal Law: A User’s Manual (Scarboroug h, ON: Carswell, 2 010).

15 Ed Morgan, “The Sword in the Zone: Fant asies of Land-Use Plan ning Law” (2012)

62 University of Toronto Law Journal 163 at 165 and 170.

16 Ibid at 195, referrin g to planning, and citing Br itish Columbia v Imperial Tobacco

Canada Ltd, 2005 SCC 49 on the rule of law.

17 Morgan, above note 15 at 196, cit ing R v Paddington Valuation Off‌icer ex p Peache y

Property Corp Lt d, [1966] 1 QB 380.

18 Above note 8.

19 [1975] 2 SCR 78.

20 [1985] 1 SCR 368.