Treesann Management Inc. v. Richmond Hill (Town), (1996) 88 O.A.C. 228 (DC)

• Judge: Feldman, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: January 11, 1996
• Jurisdiction: Ontario
• Citations: (1996), 88 O.A.C. 228 (DC)

Treesann Mgt. Inc. v. Richmond Hill (1996), 88 O.A.C. 228 (DC)

MLB headnote and full text

Treesann Management Inc. (applicant) v. The Corporation of the Town of Richmond Hill (respondent)

(8/96)

Indexed As: Treesann Management Inc. v. Richmond Hill (Town)

Ontario Court of Justice

General Division

Divisional Court

Feldman, J.

January 11, 1996.

Summary:

The applicant owned and operated a bar and adult entertainment club in the Town of Richmond Hill. In 1992, the town's licensing officer refused to grant the applicant an Adult Entertainment Parlour Owner Licence. The applicant requested a show cause hear­ing before council. The hearing was adjourned in 1992 pending the conclusion of liquor licence and bylaw proceedings against the applicant that were pending at that time. The liquor licence proceedings were appealed to the Divisional Court ((1994), 76 O.A.C. 326) and the Court of Appeal. The appeal had not been heard. The show cause hearing was not reconvened and the appli­cant never received a licence. The applicant applied for the licence without success in 1993 and 1994. The applicant was never prosecuted during that period. In 1995, the council reconvened the hearing. The town presented its case to the committee. The hearing was adjourned. When the hear­ing was about to reconvene, the applicant applied for an order prohibiting the hearing on the basis that the councillors were totally biased against the applicant and incapable of being persuaded to change their minds or grant the applicant a licence.

The Ontario Divisional Court declined to grant an order of prohibition.

Administrative Law - Topic 2094

Natural justice - Constitution of board or tribunal - Bias - Municipal councillors - The applicant owned and operated a bar and adult entertainment club in the Town of Richmond Hill - In 1992, the town's licensing officer refused to grant the appli­cant an Adult Entertainment Parlour Owner Licence - The applicant requested a show cause hearing before council - The hearing was adjourned in 1992 - In 1995, the hearing reconvened - The applicant applied for prohibition on the ground that all of the councillors were biased - The Ontario Divisional Court ruled that the test in this case, even though it was of a quasi-judicial nature as opposed to legis­lative, was not reasonable apprehension of bias but the less stringent one requiring not just bias but a prejudgment of the matter to the extent of being no longer capable of persuasion - See paragraphs 6 to 9.

Administrative Law - Topic 2094

Natural justice - Constitution of board or tribunal - Bias - Municipal councillors - The applicant owned and operated a bar and adult entertainment club in the Town of Richmond Hill - In 1992, the town's licensing officer refused to grant the appli­cant an Adult Entertainment Parlour Owner Licence - The applicant requested a show cause hearing before council - The hearing was adjourned in 1992 - In 1995, the hearing reconvened - The applicant applied for prohibition on the ground that all of the councillors were biased - The councillors had expressed a desire to clean up the area - The town submitted that none of the councillors were biased to the extent of being no longer capable of per­suasion - The Ontario Divisional Court declined to grant prohibition - However, the court observed that the councillors were under a duty to disqualify themselves if they were not open to being able to be persuaded in favour of the applicant - See paragraphs 10 to 16.

Administrative Law - Topic 2094

Natural justice - Constitution of board or tribunal - Bias - Municipal councillors - The applicant owned and operated a bar and adult entertainment club in the Town of Richmond Hill - In 1992, the town's licensing officer refused to grant the appli­cant a licence - The applicant requested a show cause hearing - In 1995, the hearing reconvened - The applicant applied for prohibition on the ground that the council­lors were biased - The town submitted that the court should allow the hearing to proceed even if there was bias because there was no other tribunal to deal with the appli­cation - The Ontario Divisional Court adopted an observation from an earlier case stating that "I find it incongruous, however, that a tribunal that is tainted with bias should be permitted to continue with its proceedings because there is no method of reconstituting the tribunal" - See para­graph 17.

Municipal Law - Topic 381

Councils - Meetings - Public hearings - General - Bias - The applicant owned and operated a bar and adult entertainment club in the Town of Richmond Hill - In 1992, the town's licensing officer refused to grant the applicant an Adult Entertainment Par­lour Owner Licence - The applicant re­quested a show cause hearing before council - The hearing was adjourned in 1992 - In 1995, the hearing reconvened - The applicant applied under s. 6 of the Judicial Review Procedure Act, as a matter of urgency, to have a single justice of the Ontario Divisional Court issue an order of prohibition on the ground the councillors were biased - The Ontario Divisional Court stated that "if the tribunal set to hear the show cause matter is shown to be biased such that any hearing they were to conduct would be fatally tainted, then the matter is urgent and prohibition should issue to prevent the hearing from continu­ing" - See paragraphs 4 and 5.

Municipal Law - Topic 429

Councils - Decisions of - Bias - [See all Administrative Law - Topic 2094 ].

Cases Noticed:

Jafine and Catherwood v. College of Vet­erinarians (Ont.) (1991), 5 O.R.(3d) 439 (Gen. Div.), refd to. [para. 4].

United Steelworkers of America, Local 4444 v. Stanley Steel Co. (1974), 6 O.R.(2d) 385 (Div. Ct.), consd. [para. 5].

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. 6].

Save Richmond Farmland Society et al. v. Richmond (Township) et al., [1990] 3 S.C.R. 1213; 116 N.R. 68; 52 B.C.L.R.(2d) 145; 2 M.P.L.R.(2d) 288, appld. [para. 6].

Cadillac Development Corp. v. Toronto (City) (1973), 1 O.R.(2d) 20 (H.C.), consd. [para. 8].

Mariano v. Mississauga (City) (1992), 55 O.A.C. 68; 9 M.P.L.R.(2d) 29 (Div. Ct.), refd to. [para. 9].

Statutes Noticed:

Adult Entertainment Parlours Bylaw - see Richmond Hill (Town) Bylaws.

Judicial Review Procedure Act, R.S.O. 1990, c. J-1, sect. 6 [para. 4].

Richmond Hill (Town) Bylaws, Adult Entertainment Parlours Bylaw, sect. 829.3.6; sect. 829.4 [para. 10].

Counsel:

E.B. Olmstead, for the applicant;

K. Jaffary, D. Tang and T. Kowalishin, for the respondent.

This application was heard on January 11, 1996, before Feldman, J., of the Ontario Divisional Court, who delivered orally the following judgment which was released on January 17, 1996.