Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., (1990) 116 N.R. 46 (SCC)

• Judge: Dickson, C.J.C., Lamer, C.J.C.*, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 01, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 116 N.R. 46 (SCC);1990 CanLII 31 (SCC);75 DLR (4th) 385;[1991] 2 WWR 145;116 NR 46;46 Admin LR 161;[1990] SCJ No 137 (QL);[1990] ACS no 137;2 MPLR (2d) 217;69 Man R (2d) 134

Old St. Boniface Res. Assoc. v. Winn. (1990), 116 N.R. 46 (SCC)

MLB headnote and full text

The Old St. Boniface Residents Association Inc. (appellant) v. The City of Winnipeg and The St. Boniface-St. Vital Community Committee (respondents)

(No. 21428)

Indexed As: Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al.

Supreme Court of Canada

Dickson, C.J.C., Lamer, C.J.C.*, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.

December 20, 1990.

Summary:

A developer applied to rezone land to accommodate high-rise development. He owned some of the land and later obtained an option from the City of Winnipeg over the rest. The community committee recommended the rezoning. One of the city councillors on the community committee was actively involved in promoting the development and also participated in the rezoning decision. An area residents association applied to quash the rezoning decision and a street closing bylaw and to restrain the city from enacting the rezoning bylaw.

The Manitoba Court of Queen's Bench, in a decision reported in 54 Man.R.(2d) 252; 39 M.P.L.R. 271, considered two of the association's grounds, namely, contravention of the City of Winnipeg Act and bias on the part of the councillor. The court quashed the rezoning decision, prohibited third reading of the rezoning bylaw and adjourned decision on the street closing bylaw but prohibited the city from proceeding with it until further order. The city and its community committee appealed. The association cross-appealed.

The Manitoba Court of Appeal, in a decision reported in [1989] 4 W.W.R. 708; 58 Man.R.(2d) 255; 43 M.P.L.R. 101; 58 D.L.R.(4th) 138, allowed the appeal. The court dismissed the cross-appeal. The association appealed.

The Supreme Court of Canada, La Forest, L'Heureux-Dubé and Cory, JJ., dissenting, dismissed the appeal.

*Editor's Note: Dickson, C.J.C., was Chief Justice at the time of hearing; Lamer, C.J.C., was Chief Justice at the time of judgment.

Land Regulation - Topic 2613

Land use control - Zoning bylaws - Enactment and interpretation - Validity of zoning bylaw not conforming to master plan - In a district plan land was designated as "proposed park area" - The city amended the district plan to change the designation to "future residential" - Zoning heights and densities were left undetermined - Subsequently, the city established a development plan, including a map indicating a designation for all land in the urban area - Land subject to proposed high-rise development was shown partly "old residential neighbourhood" and partly "regional park" - The Supreme Court of Canada refused to overrule the decision of the designated commissioner under the City of Winnipeg Act, that the rezoning was not contrary to the development plan - See paragraphs 62 to 68.

Land Regulation - Topic 2620.1

Land use control - Zoning bylaws - Enactment and interpretation - Rezoning application - Procedure - Who may apply - A developer applied for a rezoning - Part of the land affected by the rezoning was still city-owned and part consisted of city streets - Section 609(1) of the City of Winnipeg Act required zoning applications to be made by the landowner or by someone authorized in writing by the landowner - The developer received the necessary city authorization well before the rezoning application was considered by the community committee - The Supreme Court of Canada affirmed that the rezoning should not be quashed for technical noncompliance with s. 609(1) - Any defect in the application was remedied before it was processed - See paragraphs 59 to 61.

Land Regulation - Topic 2620.1

Land use control - Zoning bylaws - Enactment and interpretation - Rezoning application - Procedure - Who may apply - A developer applied for a rezoning - Part of the land affected by the rezoning was still city-owned and part consisted of city streets, title to which lay in the province - Section 609(1) of the City of Winnipeg Act required zoning applications to be made by the landowner or by someone authorized in writing by the landowner - The Supreme Court of Canada affirmed that the province need not be involved in a rezoning application - The city had a sufficient interest to rezone the land, notwithstanding that the province was technically the owner - See paragraphs 59 to 61.

Municipal Law - Topic 745

Council members - Disqualification or removal - Grounds - Conflict of interests - The Supreme Court of Canada held that some degree of prejudgment is inherent in the role of a municipal councillor - Where a councillor is found to be personally interested in matters that came before him (beyond that interest in common with all other citizens), both at common law and by statute, the councillor is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty - This is commonly referred to as a conflict of interest - See paragraph 54.

Municipal Law - Topic 901

Council members - Conflict of interests - General - [See Municipal Law - Topic 745].

Municipal Law - Topic 905

Council members - Conflict of interests - Reasonable apprehension of bias - The Supreme Court of Canada held that a party alleging disqualifying bias by a municipal councillor must establish that there is a prejudgment of the matter, to the extent that any representations at variance with the view, which has been adopted, would be futile - Statements by individual councillors will not satisfy the test unless the court concludes they are the expression of a final opinion on the matter, which cannot be dislodged - Support favouring a measure before a committee and a vote in favour will not constitute disqualifying bias absent some indication that the position taken is incapable of change - See paragraph 56.

Municipal Law - Topic 905

Council members - Conflict of interests - Reasonable apprehension of bias - A city councillor participated in discussions between a developer and the city - The councillor keenly favoured the development and later appeared before the council's finance committee to urge that the city make lands available - The councillor's support was not motivated by any personal interest, only by genuine community interest - The Supreme Court of Canada affirmed that the reasonable apprehension of bias test did not apply to the circumstances, which involved only the issue of prejudgment - The councillor had not prejudiced the case to the extent that he was disqualified - See paragraphs 57 to 58.

Municipal Law - Topic 3384

Bylaws - Enactment of - Statutory requirements - [See first and second Land Regulation - Topic 2620.1].

Cases Noticed:

Save Richmond Farmland Society v. Richmond (Township) (1990), 116 N.R. 68, refd to. [para. 1].

R. ex rel. Ellerby v. Winnipeg, [1930] 1 W.W.R. 914 (Man. C.A.), refd to. [para. 25].

Wiswell v. Metropolitan Corporation of Greater Winnipeg, [1965] S.C.R. 512, consd. [para. 26].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, consd. [para. 26].

Oley and Moffatt v. Fredericton (City) (1984), 57 N.B.R.(2d) 361; 148 A.P.R. 361; 15 D.L.R.(4th) 269, consd. [para. 33].

McGill and City of Brantford, Re (1980), 111 D.L.R.(3d) 405 (Ont. Dist. Ct.), refd to. [para. 33].

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, refd to. [para. 43].

Cadillac Development Corp. Ltd. and City of Toronto, Re (1973), 1 O.R.(2d) 20, refd to. [para. 46].

Blustein and Borough of North York, [1967] 1 O.R. 604 (H.C.J.), refd to. [para. 54].

Moll and Fisher, Re (1979), 23 O.R.(2d) 609 (Div. Ct.), refd to. [para. 54].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1, refd to. [para. 54].

Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All E.R. 935, refd to. [para. 72].

Attorney General of Hong Kong v. Ng Yuen Shiu, [1983] 2 All E.R. 346, refd to. [para. 72].

R. v. Hull Prison Board of Visitors, [1979] 1 All E.R. 701, refd to. [para. 72].

Multi-Malls Inc. and Minister of Transportation and Communications, Re (1976), 14 O.R.(2d) 49, refd to. [para. 72].

Canadian Occidental Petroleum Ltd. and District of North Vancouver, Re (1983), 148 D.L.R.(3d) 255, refd to. [para. 72].

Gaw v. Commissioner of Corrections (1986), 2 F.T.R. 122, refd to. [para. 72].

Bruhn-Mou and College of Dental Surgeons of British Columbia, Re (1975), 59 D.L.R.(3d) 152, refd to. [para. 72].

Christie v. Winnipeg (1981), 16 M.P.L.R. 128 (Man. Q.B.), refd to. [para. 87].

Statutes Noticed:

City of Winnipeg Act, S.M. 1971, c. 105; C.C.S.M., c. 105, generally [para. 4]; sect. 2(5) [para. 99]; sect. 20(1)(e) [para. 38]; sect. 495(3) [para. 25]; sect. 569(f) [paras. 84, 92]; sect. 597.1(1) [para. 62]; sect. 599 [paras. 36, 62, 80, 83, 86-87, 89]; sect. 609(1) [paras. 24-25, 38-39, 59, 71]; sect. 609(2), sect. 610(1), sect. 611(1), sect. 612, sect. 614(1), sect. 615(1.1), sect. 615(3), sect. 615(4) [para. 38].

City of Winnipeg Bylaws, Bylaw 965/75 [para. 5]; Bylaw 2960/81 [para. 8]; Bylaw 3336/82, Bylaw 3829/84 [para. 7].

Municipal Council Conflict of Interest Act, R.S.M. 1987, c. 255; C.C.S.M., c. M-255, sect. 4, sect. 5, sect. 8 [para. 55].

Authors and Works Noticed:

Rogers, Canadian Law of Planning and Zoning (1990), pp. 68-69 [para. 85]; 69 [para. 88].

Rogers, The Law of Canadian Municipal Corporations (2nd Ed.), vol. 1, p. 379 [para. 25].

Counsel:

Arne Peltz and M.B. Nepon, for the appellant;

C. Gillespie and D. McCaffrey, Q.C., for the respondents.

Solicitors of Record:

Public Interest Law Centre, Winnipeg, Manitoba, for the appellant;

Taylor, McCaffrey, Chapman, Winnipeg, Manitoba, for the respondents.

This appeal was heard before Dickson, C.J.C., Lamer, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ., of the Supreme Court of Canada on May 1, 1990. The decision of the Supreme Court was delivered in both official languages on December 20, 1990, when the following English opinions were filed:

Sopinka, J. (Dickson, C.J.C., Wilson, Gonthier and McLachlin, JJ., concurring) - see paragraphs 1 to 75;

Lamer, C.J.C. - see paragraphs 76 to 77;

La Forest, J. (L'Heureux-Dubé and Cory, JJ., concurring), dissenting - see paragraphs 78 to 101.