TransCanada Pipelines Ltd. v. Beardmore (Township) et al., (2000) 137 O.A.C. 201 (CA)

• Judge: Weiler, Goudge and Borins, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 05, 2000
• Jurisdiction: Ontario
• Citations: (2000), 137 O.A.C. 201 (CA)

TransCan. Pipelines v. Beardmore (2000), 137 O.A.C. 201 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. AP.007

Her Majesty The Queen in Right of Ontario as represented by the Minister of Municipal Affairs and Housing (appellant) v. TransCanada Pipelines Limited, The Corporation of The Township of Beardmore, The Corporation of The Town of Geraldton, The Corporation of The Town of Longlac, The Corporation of The Township of Nakina, Long Lake 58 First Nation, Nishnawbe-Aski Nation and Ginoogaming First Nation, Bob Gray, Commissioner of The Greenstone Restructuring Commission and The Transition Board of The Greenstone Restructuring Commission (respondents)

(C29876)

Indexed As: TransCanada Pipelines Ltd. v. Beardmore (Township) et al.

Ontario Court of Appeal

Weiler, Goudge and Borins, JJ.A.

April 5, 2000.

Summary:

A Final Proposal and Order made by the Commissioner of the Greenstone Restructuring Commission proposed to amalgamate the Townships of Beardmore and Nakina and the Towns of Geraldton and Longlac into a single municipality to be known as the Municipality of Greenstone. The Final Proposal and Order also annexed to the newly created municipality numerous unorganized townships contiguous to the present boundaries of the Township of Beardmore and the Towns of Geraldton and Longlac and non-contiguous unorganized territory. The applicants, TransCanada Pipelines Ltd., Long Lac 58 First Nation, Nishnawbe-Aski Nation and Ginoogaming First Nation, brought three applications for judicial review, seeking, inter alia, an order quashing the Final Proposal and Order. The applications were heard together.

The Ontario Divisional Court, per O'Driscoll, J., in a decision reported at 106 O.A.C. 30, allowed the applications. The court issued: (1) an order quashing the Final Proposal and Order as ultra vires the Restructuring Commission and the Transition Board of the Restructuring Commission and declaring it to be of no force and effect; (2) an order that there be no further orders with respect to the Final Proposal and Order; and (3) an order that the Final Proposal and Order failed to comply with ss. 25.1 to 25.4 of the Municipal Act and Ontario Regulation 253/97. The Minister of Municipal Affairs and Housing appealed. Nishnawbe-Aski Nation and Ginoogaming First Nation cross-appealed for a declaration that the Final Proposal and Order infringed aboriginal rights confirmed by s. 35(1) of the Constitution Act, 1982.

The Ontario Court of Appeal allowed the appeal and set aside the judgment of the Divisional Court. The court held that it was not appropriate to determine the constitutional issue raised on the cross-appeal where the Divisional Court had not considered the issue and there was an absence of a proper constitutional record. The court dismissed the cross-appeal without prejudice to Nishnawbe-Aski Nation and Ginoogaming First Nation to raise the constitutional issue in a subsequent proceeding.

Administrative Law - Topic 2087

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - General - [See third Municipal Law - Topic 7762 ].

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - [See third Municipal Law - Topic 7762 ].

Administrative Law - Topic 3202

Judicial review - General - Scope of review - [See Administrative Law - Topic 9103 ].

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - The Ontario Divisional Court allowed applications for judicial review of a Final Proposal and Order made by the Greenstone Restructuring Commission on the ground that the Final Proposal and Order constituted a "tax grab" - The Ontario Court of Appeal stated that affidavit evidence should not have been received by the Divisional Court with respect to this issue where the evidence was presented to supplement the record before the Commission for the purpose of demonstrating that the court should substitute its decision for that of the Commission - See paragraph 144.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Administrative Law - Topic 9103 ].

Administrative Law - Topic 9103

Boards and tribunals - Judicial review - Scope of review - The Ontario Court of Appeal stated that a restructuring commission appointed pursuant to s. 25.3(1) of the Municipal Act did not engage in an adjudicative process and that a judicial review of a restructuring proposal ordered by a restructuring commission was limited to a consideration of whether the commission properly exercised the power conferred on it by the Municipal Act and Regulations - While that standard historically excluded any consideration of the merits of the proposal, the court stated that after the decision of the Supreme Court of Canada in Baker it was arguable that a reviewing court might go beyond that standard to scrutinize the administrative action using the standard of review appropriate to the administrative action under review - The court stated that in its view, it would not interfere unless the restructuring proposal was patently unreasonable - The court added the caveat that non adjudicative administrative action was also subject to review on the grounds that it was arbitrary, discriminatory or not taken in good faith - See paragraphs 92 to 105.

Constitutional Law - Topic 25

General - Raising constitutional issues - Proof required - The Ontario Divisional Court allowed applications for judicial review of a Final Proposal and Order made by the Commissioner of the Greenstone Restructuring Commission - The Minister of Municipal Affairs and Housing appealed - Two of the applicants for judicial review, Nishnawbe-Aski Nation and Ginoogaming First Nation, cross-appealed asking the court to declare that the Final Proposal and Order infringed aboriginal rights guaranteed by Treaty 9 and affirmed by s. 35(1) of the Constitution Act, 1982 - The Divisional Court had considered it unnecessary to deal with that issue where it quashed the Final Proposal and Order on other grounds - The Ontario Court of Appeal held that as the Divisional Court had not considered the constitutional issue, there was no decision for it to review and the issues could not be litigated de novo - Further, there had been no findings on the constitutional facts required to resolve the issue and the issue should not be decided in the absence of a proper constitutional record - See paragraphs 155 to 162.

Courts - Topic 89

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Boards and tribunals - [See second Municipal Law - Topic 7765 ].

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - [See first Municipal Law - Topic 7762 ].

Indians, Inuit and Métis - Topic 5404

Lands - Protection of Indian rights - General - [See first Municipal Law - Topic 7762 ].

Indians, Inuit and Métis - Topic 6003

Aboriginal rights - Protection of - [See first Municipal Law - Topic 7762 ].

Municipal Law - Topic 7762

Boundaries - Annexation - Jurisdiction - A Final Proposal and Order made by the Commissioner of the Greenstone Restructuring Commission proposed to amalgamate two townships and two towns into a single municipality and to annex to the newly created municipality numerous unorganized townships and non-contiguous unorganized territory - The Ontario Divisional Court held that the Commission lost its jurisdiction when it failed to adequately consult with First Nations whose peoples would be impacted by the annexation - The Ontario Court of Appeal held that the Divisional Court erred - The Municipal Act placed no obligation on the Commission to consult with First Nations in the area - Further, the Divisional Court elevated the Crown's duty to consult with First Nations from merely being one of several justificatory requirements to be met by the Crown when a law or government action was challenged on the ground that it unduly interfered with Aboriginal or treaty rights, to an independent ground on which such a law or government action might be challenged - See paragraphs 110 to 123.

Municipal Law - Topic 7762

Boundaries - Annexation - Jurisdiction - A Final Proposal and Order made by the Commissioner of the Greenstone Restructuring Commission proposed to amalgamate two townships and two towns into a single municipality and to annex to the newly created municipality numerous unorganized townships and non-contiguous unorganized territory - The Final Proposal and Order would increase the realty taxes paid by TransCanada Pipelines Ltd., which owned gas pipelines in the affected area - The Ontario Divisional Court held that the Commissioner lost jurisdiction where the Final Proposal and Order constituted a "tax grab" - The Ontario Court of Appeal held that the Divisional Court erred - There was no evidence of the precise tax increase, if any, and there was no bad faith by the Commission - The prospect of increased tax revenue was not the exclusive reason for the restructuring proposal - See paragraphs 131 to 145.

Municipal Law - Topic 7762

Boundaries - Annexation - Jurisdiction - Three applications were brought for judicial review of a Final Proposal and Order made by the Commissioner of the Greenstone Restructuring Commission - The Ontario Divisional Court held that the Commission lost jurisdiction because there was a reasonable apprehension of bias where an informed spectator would perceive that the Commissioner was simply doing the bidding of the Ministry of Municipal Affairs and Housing (MMAH) - The conclusion was based on evidence that the Commissioner received considerable assistance from MMAH staff - The Ontario Court of Appeal held that the Divisional Court erred - As the Commission was not performing an adjudicative role, the applicable test to determine bias was the "closed mind" test rather than the reasonable apprehension of bias test - The test was whether the requirement of open-mindedness had been lost to the extent that it could reasonably be said that the Commissioner had predetermined the nature of the restructuring proposal - Applying that test, the evidence did not support a finding of bias - See paragraphs 146 to 152.

Municipal Law - Topic 7764

Boundaries - Annexation - Validity of annexation order - A Final Proposal and Order made by the Commissioner of the Greenstone Restructuring Commission proposed to amalgamate two townships and two towns into a single municipality (the Municipality of Greenstone) and to annex to the newly created municipality numerous unorganized townships and non-contiguous unorganized territory - The Commission was precluded by s. 3(2)(f) of Ontario Regulation 253/97 from including in a restructuring proposal the annexation of an unorganized territory to a municipality that was incorporated under s. 3(1) of the Regulation - The Ontario Court of Appeal held that the proposed annexation was not contrary to s. 3(2)(f) - Under the Commission's order, the existing towns and townships were "amalgamated" as the Municipality of Greenstone - As the order did not "incorporate" a municipality, it did not annex unorganized territory to a newly incorporated municipality - See paragraphs 106 to 109.

Municipal Law - Topic 7765

Boundaries - Annexation - Considerations - [See second Municipal Law - Topic 7762 ].

Municipal Law - Topic 7765

Boundaries - Annexation - Considerations - A Final Proposal and Order made by the Commissioner of the Greenstone Restructuring Commission proposed to amalgamate two townships and two towns into a single municipality and to annex to the newly created municipality numerous unorganized townships and non-contiguous unorganized territory - The Ontario Divisional Court allowed applications for judicial review of the Final Proposal and Order on the ground that the Commission failed to apply the "three filters" test previously applied by the Ontario Municipal Board (OMB) when it had jurisdiction over municipal restructuring - It also appeared that the Divisional Court felt that the Commission was required to follow the result reached by the OMB on a 1994 restructuring application - The Ontario Court of Appeal held that the Divisional Court erred in holding that the Commission was required to apply the "three filters" test and that it was bound by the 1994 OMB decision and in substituting its own view of the merits of the restructuring proposal - See paragraphs 124 to 130.

Municipal Law - Topic 8406

Amalgamation - General - Considerations - [See second Municipal Law - Topic 7762 and second Municipal Law - Topic 7765 ].

Municipal Law - Topic 8408

Amalgamation - General - Commissions - [See Administrative Law - Topic 9103 ].

Practice - Topic 9010

Appeals - Restrictions on argument on appeal - General - [See Constitutional Law - Topic 25 ].

Practice - Topic 9255

Appeals - Judgments by appeal court - Scope of jurisdiction - The Ontario Divisional Court quashed a Final Proposal and Order made by the Commissioner of the Greenstone Restructuring Commission - The Minister of Municipal Affairs and Housing appealed - The Commissioner's counsel invited the court on appeal to state in its reasons that personal criticisms of the Commissioner made by the Divisional Court in its reasons were unwarranted - The Commissioner maintained that the Divisional Court's comments about him stood to have adverse consequences for his career and livelihood - The Ontario Court of Appeal allowed the appeal from the Divisional Court's decision - However, the court stated that it was not appropriate for it to comment about the remarks of the Divisional Court which the Commissioner felt were unfair and that it was not provided with any authority as to why it should do so - See paragraphs 153 to 154.

Cases Noticed:

Bruce (Township) v. Ontario (Minister of Municipal Affairs and Housing) (1998), 112 O.A.C. 68; 41 O.R.(3d) 309 (C.A.), refd to. [para. 10].

Pembroke Civic Hospital et al. v. Health Services Restructuring Commission (Ont.) (1997), 106 O.A.C. 96; 36 O.R.(3d) 41 (Div. Ct.), refd to. [para. 74].

Russell et al. v. Health Services Restructuring Commission (Ont.) et al. (1998), 114 O.A.C. 280; 13 Admin. L.R.(3d) 196 (Div. Ct.), affd. (1999), 121 O.A.C. 283; 175 D.L.R.(4th) 185 (C.A.), leave to appeal denied (1999), 253 N.R. 199; 134 O.A.C. 198, refd to. [para. 75].

Wellesley Central Hospital et al. v. Health Services Restructuring Commission (Ont.) (1997), 103 O.A.C. 199; 3 Admin. L.R.(3d) 137 (Div. Ct.), refd to. [para. 75].

Lalonde et al. v. Commission de restructuration des services de santé (Ont.) (1999), 131 O.A.C. 291; 181 D.L.R.(4th) 263 (Div. Ct.), refd to. [para. 75].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161; [1985] 1 C.N.L.R. 120; 13 D.L.R.(4th) 321, refd to. [para. 78].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 56 C.C.C.(3d) 263; 70 D.L.R.(4th) 385, refd to. [para. 78].

Canadian National Railway Co. v. Fraser-Fort George (Regional District) (1996), 83 B.C.A.C. 153; 136 W.A.C. 153; 140 D.L.R.(4th) 23; 26 B.C.L.R.(3d) 81, refd to. [para. 84].

Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; 30 N.R. 119; 106 D.L.R.(3d) 385; 13 C.R.(3d) 1 (Eng.); 15 C.R.(3d) 315 (Fr.); 50 C.C.C.(2d) 353, refd to. [para. 87].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 100].

Suresh v. Canada (Minister of Citizenship and Immigration) (2000), 252 N.R. 1 (F.C.A.), refd to. [para. 103].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 104].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321; 105 C.C.C.(3d) 289, refd to. [para. 117].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161; 153 D.L.R.(4th) 193, refd to. [para. 118].

Halfway River First Nation v. British Columbia (Minister of Forests) et al. (1999), 129 B.C.A.C. 32; 210 W.A.C. 32; 178 D.L.R.(4th) 666 (C.A.), refd to. [para. 123].

Evans v. Public Service Commission Appeal Board, [1983] 1 S.C.R. 582; 47 N.R. 255, refd to. [para. 129].

Domtar Inc. v. Commission d'appel en matière de lésions professionelles et autres, [1993] 2 S.C.R. 756; 154 N.R. 104; 55 Q.A.C. 241; 105 D.L.R.(4th) 385, refd to. [para. 129].

Gander (Town) v. Tulk (1990), 86 Nfld. & P.E.I.R. 5; 268 A.P.R. 5; 1 M.P.L.R. 123 (Nfld. T.D.), refd to. [para. 137].

Irving Oil Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91; 143 D.L.R.(3d) 577, refd to. [para. 138].

Keeprite Workers Independent Union v. Keeprite Products Ltd. (1980), 29 O.R.(2d) 513 (C.A.), leave to appeal refused (1980), 35 N.R. 85 (S.C.C.), refd to. [para. 144].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 147].

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. 147].

Zündel v. Canada (Attorney General) (1999), 170 F.T.R. 194; 175 D.L.R.(4th) 512 (T.D.), refd to. [para. 149].

Northern Telecom Ltd. v. Communications Workers of Canada and Canada Labour Relations Board, [1980] 1 S.C.R. 115; 28 N.R. 107, refd to. [para. 159].

Stoney Creek Indian Band v. British Columbia et al. (1999), 129 B.C.A.C. 106; 210 W.A.C. 106; 179 D.L.R.(4th) 57 (C.A.), refd to. [para. 159].

Statutes Noticed:

Municipal Act Regulations (Ont.), Reg. 253/97, sect. 3(2)(f) [para. 106].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998), pp. 15-61 to 15-65 [para. 101]; 15-66 to 15-68 [para. 103].

Lawrence, Sonia, and Macklem, Patrick, From Consultation to Reconciliation: Aboriginal Rights and the Crown's Duty to Consult (2000), 79 Can. Bar Rev. 252, pp. 255 [para. 119]; 262 [para. 120].

Counsel:

Dennis W. Brown, Q.C. and R. Tzimas and J. Mitchell, for the appellant;

Richard N. Poole and J. Bradford Nixon, for the respondent, TransCanada Pipelines Limited;

Alan Pratt, for the respondent, Long Lake 58 First Nation;

H.W.R. Townshend, for the respondents, Nishnawbe-Aski Nation and Ginoogaming First Nation;

A. Roman, for the respondent, Bob Gray, Commissioner of the Greenstone Restructuring Commission.

This appeal was heard on April 13 and 14, 1999, before Weiler, Goudge and Borins, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Borins, J.A., and was released on April 5, 2000.