Appeals and Judicial Review

• Author: Howard Epstein
• Pages: 432-466

432

CHAPTER 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 being 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 review,

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 reasonableness 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 Review433

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

istrative accountability of government, especially local government.2

Political accountability is often recognized as a prime form of account-

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

iodic elections. But f‌inancial probity, administrative 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 limits of the jurisdictional authority conferred upon them.”3

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

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

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

outcomes.”4

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

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

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

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

(City)),7 discrimination (Scarborough (Township) v Bondi),8 procedural

issue s (Hubbard v West Vancouver (District),9Action 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 [Dunsmuir].

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.

102003 ABQB 895.

11[1959] SCR 121 [Roncarelli].

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

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

14Early 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 with land-

use matters in administrative law. (“The courts have made it clear that

law is mandatory while policy is discretionary, but they seem to have

diff‌iculty distinguishing 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 the 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 disci-

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

It is simply not possible to determine whether the local authority

“has taken into consideration matters which were not proper to be

regarded, or has omitted to consider matters which were of direct

importance,” since there are no agreed upon criteria which span the

potentially applicable planning approaches. The criteria are inher-

ently subjective in every 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, “arbitrary” lines could be drawn such that “On

one side of an arbitrary line an owner may be prevented from doing

something with his 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 distinctions 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).

15Ed 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.

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

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

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

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

18Above note 8.

19[1975] 2 SCR 78.

20[1985] 1 SCR 368.