McColl v. Gravenhurst (Town), (1993) 67 O.A.C. 55 (DC)

• Judge: Hartt, Southey and Smith, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: October 01, 1993
• Jurisdiction: Ontario
• Citations: (1993), 67 O.A.C. 55 (DC)

McColl v. Gravenhurst (1993), 67 O.A.C. 55 (DC)

MLB headnote and full text

John R. McColl (applicant) v. The Corporation of the Town of Gravenhurst (respondent)

(File No. 373/92)

Indexed As: McColl v. Gravenhurst (Town)

Ontario Court of Justice

General Division

Divisional Court

Hartt, Southey and Smith, JJ.

October 1, 1993.

Summary:

The Town of Gravenhurst passed a bylaw purporting to dismiss McColl, an officer of the town. McColl applied to quash the bylaw, alleging that the town breached its duty of procedural fairness.

The Ontario Divisional Court, in a decision reported 52 O.A.C. 398, allowed the appli­cation, stating that McColl was not given adequate notice of his requested hearing by council under s. 99 of the Ontario Municipal Act respecting his proposed dismissal.

Gravenhurst provided McColl with written reasons for his proposed dismissal and notified him of the requested hearing. McColl moved to prohibit the hearing on the grounds (1) of a reasonable apprehension of bias by members of council; (2) that the town had already proposed a re­place­ment officer; and (3) the council had no power to hold a hearing under s. 99(2) of the Munici­pal Act because the section had since been appealed.

The Ontario Divisional Court dismissed the application as premature. The council, which included three members from the first hear­ing, concluded that McColl should be dis­missed and passed a bylaw purporting to implement the dismissal. McColl applied for an order in the nature of certiorari to quash the decision and set aside the bylaw on the basis of procedural unfairness.

The Ontario Divisional Court dismissed the application.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The Town of Gravenhurst passed a bylaw purporting to dismiss McColl, an officer of the town - The Ontario Divisional Court quashed the bylaw for procedural unfair­ness - Pursuant to the order, Gravenhurst provided McColl with written reasons for his proposed dismissal and notified him of a hearing by council - Before the hearing, Gravenhurst hired a replacement officer - Three members at the hearing had sat on the first hearing - After the hearing, Gravenhurst passed a bylaw purporting to dismiss McColl - McColl applied to quash the bylaw making allegations of procedural unfairness - The Ontario Divisional Court dismissed the application.

Administrative Law - Topic 2402

Natural justice - Procedure - Duty of fairness - [See Administrative Law - Topic 2266 ].

Municipal Law - Topic 1024

Officers - Dismissal - Method of dis­missal - [See Administrative Law - Topic 2402 ].

Cases Noticed:

Syndicat des employés de production du Québec et de l'Acadie v. Commission canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241; 62 D.L.R.(4th) 385, consd. [para. 16].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134; 75 D.L.R.(4th) 385, refd to. [para. 28].

Statutes Noticed:

Gravenhurst (Town) Bylaws, Bylaw No. 92-05, generally [para. 1].

Municipal Act, R.S.O. 1980, c. 302, sect. 99 [paras. 4, 14]; sect. 99(2) [paras. 10, 11].

Statutory Powers Procedure Act, R.S.O. 1980, c. 484, sect. 6 [para. 10].

Counsel:

G.H. Rust-D'Eye and B.H. Engell, for the applicant;

C.G. Riggs and G.W. Giorno, for the respondent.

This application was heard on October 1, 1993, before Hartt, Southey and Smith, JJ., of the Ontario Divisional Court. Judgment for the court was delivered orally by Southey, J., and released on October 18, 1993.