McColl v. Gravenhurst (Town), (1998) 110 O.A.C. 386 (CA)

• Judge: McMurtry, C.J.O., Doherty and Goudge, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 15, 1998
• Jurisdiction: Ontario
• Citations: (1998), 110 O.A.C. 386 (CA)

McColl v. Gravenhurst (1998), 110 O.A.C. 386 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. JL.012

John R. McColl (applicant/appellant) v. The Corporation of the Town of Gravenhurst (respondent/respondent in appeal)

(C19314)

Indexed As: McColl v. Gravenhurst (Town)

Ontario Court of Appeal

McMurtry, C.J.O., Doherty and Goudge, JJ.A.

June 15, 1998.

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, in a decision reported 67 O.A.C. 55, dismissed the appli­cation. McColl appealed.

The Ontario Court of Appeal dismissed the appeal.

Administrative Law - Topic 2094

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias -Municipal councillors - A town council held a hearing under s. 99 of the Munici­pal Act respecting the proposed dismissal of a town officer - The officer was dis­missed - He appealed, alleging bias - The Ontario Court of Appeal held that the applicable test for bias was more relaxed than the standard required of a tribunal more close­ly resembling a court - A relaxed test was justified where a hearing would only be held where there had been some prejudg­ment, i.e., the council, as the officer's employer, would only hold a hearing hav­ing opined that it must consider the of­ficer's dismissal - To establish bias, the officer must therefore establish that the councillors were incapable of being per­suaded to the officer's point of view and that his or her representations were futile -See paragraphs 14 to 23.

Administrative Law - Topic 2094

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias -Municipal councillors - 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 - Instead of restoring McColl, the town, pursuant to the court order, provided McColl with written reasons for his proposed dismissal and notified him of a hearing by council - Before the hearing, the town hired a re­placement officer - Three members at the hearing had participated in the earlier decision - After the hearing, the town passed a bylaw purporting to dismiss McColl - McColl unsuccessfully applied to quash the bylaw - He appealed, assert­ing that the town had failed to act impar­tially and without bias - The Ontario Court of Appeal dismissed McColl's appeal.

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 - Instead of restoring McColl, the town, pursuant to the court order, provided McColl with written reasons for his pro­posed dismissal and notified him of a hearing by council - Before the hearing, the town hired a replacement officer - Three members at the hearing had partici­pated in the earlier decision - After the hearing, the town passed a bylaw purport­ing to dismiss McColl - McColl unsuc­cessfully applied to quash the bylaw on the basis of procedural unfairness - The On­tario Court of Appeal dismissed McColl's appeal.

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 2266 ].

Cases Noticed:

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, appld. [para. 15].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81; 69 D.L.R.(4th) 489; [1990] 3 W.W.R. 289; 43 Admin. L.R. 157, refd to. [para. 18].

Posluns v. Toronto Stock Exchange et al., [1968] S.C.R. 330; 67 D.L.R.(2d) 165, appld. [para. 20].

Statutes Noticed:

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

Municipal Act, R.S.O. 1980, c. 302, sect. 99(1), sect. 99(2) [para. 9].

Counsel:

Bryan Finlay, Q.C., George H. Rust-D'Eye and David R. Wingfield, for the appel­lant;

Christopher G. Riggs, for the respondent.

This appeal was heard on March 3, 1998, before McMurtry, C.J.O., Doherty and Goudge, JJ.A., of the Ontario Court of Appeal.

On June 15, 1998, Goudge, J.A., delivered the following decision for the Court of Appeal.