It’s all relative – what it takes for a decision maker to discharge its duty of procedural fairness depends on a determination of the level of procedural fairness required in the specific circumstances

Administrative law – Decisions reviewed – Community Council – Judicial review – Procedural requirements and fairness – Fresh evidence – Admissibility – Standard of review – Reasonableness – Municipalities – By-laws

Scott v. Toronto (City), [2021] O.J. No. 591, 2021 ONSC 858, Ontario Superior Court of Justice, February 8, 2021, F. Kristjanson J.

On June 13, 2017, the Toronto and East York Community Council (“Council”) denied an application for a front yard parking pad permit under the Toronto Municipal Code.  This was an appeal of that decision.  The appeal was dismissed with costs.

The applicants purchased their home in June 2012.  At that time, the property had an unauthorized parking pad installed.  In October 2012, the City of Toronto issued a by-law infraction.  Three years later, the applicants applied for a license for front yard parking.  The City denied the license on the grounds that it was too close to a protected tree.  The applicants appealed that license refusal to Council.

As part of the appeal process, the General Manager who refused to approve the license was required to prepare a report for consideration by Council.  The report prepared in this case cited two reasons for refusal of a license.  First, the proposed parking pad was on the same side of the street as street permit parking, and second, the proposed parking pad was too close to a protected tree.

At the Council meeting, one of the applicants made oral submissions in support of the appeal, and two neighbours gave submissions opposing the appeal.  A fourth individual submitted a letter in favour of the appeal which was provided to Council.  A majority of Council voted to deny the appeal.  No written reasons were given.

On judicial review, the court considered whether procedural fairness had been denied to the applicants.  The court held that a decision-maker has a duty of procedural fairness when making a decision that is not legislative in nature that affects the rights, privileges, or interests of an individual.  In this case, the court found that the factors to be considered suggested the content of the duty of fairness owed is at the low end of the spectrum.  Those factors are as follows.

First, the court considered the nature of the decision being made and the process followed in making it.  The process was said to be polycentric, taking into account the public interest.  The court found the process does not resemble judicial decision-making.

Second, the court considered the nature of the statutory scheme and the terms of the statute pursuant to which the body operates, noting this was a final decision with no further mechanism for appeal.

Third, the court considered the importance of the decision to the individual or individuals affected.  The court found the decision was of relatively low importance when compared to, for example, threats to life or liberty.

Fourth, the court considered the legitimate expectations of the person challenging the decision and found the applicants had not established they had a legitimate expectation of higher participatory rights.

Finally, the court considered the choices of procedure made by the agency and its institutional constraints.  The court found the process adopted by the City differs significantly from a judicial model, with deference being owed to processes designed to balance fairness, public participation, and efficiency, particularly with significant restraints on the time of elected councillors.

In this case, the applicants had received notice, disclosure of the City’s recommendations, an opportunity to be heard orally and in writing, and to be present while the issue was discussed as well as during Council’s vote.  They were informed of the process in advance.  The court found Council’s duty of procedural fairness had been met.  The court further found written reasons were not required in this case, as there was a clear rationale for the decision, two councillors had articulated reasons, the report before Council provided two bases for the recommendation, neighbours had both opposed and supported the appeal, and all the relevant submissions and legislation informed the councillor’s votes.

The court held the decision was reasonable, and ordered the applicants to pay the City’s costs.

This case was digested by Mollie A. Clark, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Mollie A. Clark at [email protected].

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