Case Name:

Marsh v. Chatham-Kent (Municipality)

Between

Tom Marsh, Applicant, and

The Municipality of Chatham-Kent, Respondent

[2009] O.J. No. 3314

63 M.P.L.R. (4th) 259

2009 CarswellOnt 4664

179 A.C.W.S. (3d) 706

Court File No. 4447/09

 Ontario Superior Court of Justice

L.C. Leitch J.

Heard: April 20, 2009.

 Judgment: July 31, 2009.

(64 paras.)

Municipal law -- Bylaws and resolutions -- Enactment of bylaws -- Conditions precedent -- Public hearing -- Grounds for invalidity -- Discrimination -- Application by landowner for an order declaring a municipal sewer by-law invalid on the basis of procedural irregularities or for an order declaring it void and unenforceable on the grounds of discrimination, arbitrariness, etc., dismissed -- The by-law was passed after a long and public consultation in an open session of council -- There was no discrimination, arbitrariness or unfairness either procedurally or substantively, and the by-law was passed in good faith.

Municipal law -- Planning and development -- Development charges and levies -- New capital cost burdens for services -- Application by landowner for an order declaring a municipal sewer by-law invalid on the basis of procedural irregularities or for an order declaring it void and unenforceable on the grounds of discrimination, arbitrariness, etc., dismissed -- The by-law was passed after a long and public consultation in an open session of council -- There was no discrimination, arbitrariness or unfairness either procedurally or substantively, and the by-law was passed in good faith.

Application for an order declaring a sewer by-law invalid on the basis of procedural irregularities in its passing on Sept. 22, 2008, or alternatively for an order declaring the by-law void and unenforceable on the grounds that it was discriminatory, arbitrary, unfair, vague and uncertain. The by-law authorized the construction of sanitary sewer works in Bothwell, Ontario and the imposition of a charge for the payment of the capital cost of such construction. The by-law authorized the respondent municipality to issue a debenture to finance the capital cost of the project for up to 20 years at a rate of interest to be determined. Under s. 8 of the by-law, the "capital costs" of the project would be recovered under s. 9 of the Municipal by means of a connection charge and additional charges imposed on the owners of each parcel of the benefiting lands. For most owners the charge would be $15,500. Each property owner was to connect to the sewer within 18 months of receiving the notice and invoice from the respondent. The definition of "benfiting lands" and the method and process by which the fees and charges were to be calculated under the by-law were in contention. The applicant argued there had been a breach of the respondent's obligation of natural justice, procedural fairness, its duty of good faith and due diligence in the passage of the by-law, and that the respondent's councillors acted for mistaken, misguided or otherwise improper motive, and with wilfull blindness to the truth respecting the need for, the opposition to, and the effects of the by-law. The applicant argued the by-law's effect wsa discriminatory because a property owner who connected and got the benefit of the project paid the same as someone who did not connect, and that ratepayers on vacant land would pay the same as those with buildings.

HELD: Application dismissed. Members of the council perceived a need for the project and members of the public might disagree with the decision. However, the by-law was ultimately approved after extensive efforts to obtain public input. It was ultimately passed at a full public meeting at which there were presentations by citizens of the community, including the group which the applicant represented and there was public debate. There was no evidence of bad faith. The by-law was considered at a number of public meetings, and a number of scientific studies were obtained and considered. The by-law was not discriminatory. The land was being benefited whether or not the property owner chose to hook into the sanitary sewer. All property owners described in Schedule "A" were treated the same and were entitled to receive the same benefit. The definition of "benefiting lands" was clear. The map showed the streets and lots affected within an area outlined by a marking defined in the legend as the area boundary. Part XII of the Municipal Act, 2001 gave the respondent authority to recover the capital costs of the project. None of the provisions were vague or amounted to any improper delegation of authority. The cost of the respondent's borrowing would determine the interest rate charged to the property owners. The by-law was passed after a long and public consultation in an open session of council. There was no discrimination, arbitrariness or unfairness either procedurally or substantively, and the by-law was passed in good faith.

Statutes, Regulations and Rules Cited:

Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 62

Municipal Act, 2001, S.O. 2001, c. 25, s. 9, s. 10(2), s. 272, s. 273(1)

Counsel:

Paul Brooks, for the Applicant.

Raymond G. Colautti, for the Respondent.

1 L.C. LEITCH J.:-- The applicant seeks an order declaring By-law Number 235-2008 (the "Sewer By-Law") invalid on the basis of procedural irregularities in its passage on September 22, 2008, or alternatively an order declaring the Sewer By-law void and unenforceable on the basis that its provisions are discriminating, arbitrary, unfair, vague and uncertain.

The Sewer By-law in issue

2     The Sewer By-law authorizes the construction of sanitary sewer works in Bothwell, Ontario and the imposition of a charge for the payment of the capital cost of such construction (the "Sewer Project").

3     The Sewer By-law defines the "Benefiting Lands" at s. 2(1) as the lands that will be able to obtain sewer services from the Sewer Project, which are described in Schedule "A" attached to the By-law.

4     The Sewer By-law also authorizes the respondent to issue a debenture to finance the capital cost of the Sewer Project for a period of up to twenty years at a rate of interest to be determined by its Director of Accounting.

5     Pursuant to Section 8 of the Sewer By-law, the "capital costs" of the Sewer Project, will be recovered using the provisions of Part XII of the Municipal Act, 2001, S.O. 2001, c. 25. Specifically, pursuant to Section 9, a connection charge and additional charges will be imposed on the owners of each parcel of the benefiting lands. Connection charges are specified in Schedule "B".

6     The Sewer By-law provides each owner with the option of paying the connection charge within thirty days after receiving a notice and invoice from the respondent or paying such charge in 5, 10, 15 or 20 annual installment payments to be billed with the tax bill. For most owners, the charge is $15,500.00.

7     Each property owner must connect to the new sanitary sewer within 18 months of receiving the notice and invoice from the respondent.

8     Interest will be charged on outstanding amounts paid by installment and on overdue payments at the rate of interest paid by the respondent on the debenture it issued (Section 11).

9     It is the definition of "Benefiting Lands" and the method and process by which the fees and charges are to be calculated under the Sewer By-law that are in contention on this application.

Background facts

10     At the present time, Bothwell does not have public works that collect and treat sewage. Rather, sewage is disposed of by individual on-site septic systems.

11     In the 1960s, 1970s, 1980s and 1990s, recommendations were made for communal water supply and sewage treatment.

12     Ultimately, the respondent retained R. V. Anderson Associates Limited to undertake a study of water and wastewater servicing issues and make recommendations. After their study, conducted in accordance with the Municipal Engineers Association Class Environmental Assessment ("Class EA") for Municipal Water and Wastewater Projects, they prepared a report dated May 2000 (the "Water and Wastewater Master Plan Study Report").

13     As outlined in the executive summary of their report, "The infrastructure-servicing plan developed is intended to be a flexible document that can respond to needs and changes in many areas over 20-year time frame" (the "Master Plan").

14     In developing the Master Plan, an annual growth rate of 1% was utilized for a number of communities, including Bothwell. A new sewage system (including collection and treatment) was recommended for Bothwell over the next 3 - 10 years at a cost of $5,000,000.00.

15     The Master Plan also discussed cost sharing of future water and waste water infrastructure projects. The Master Plan stated that following public input and debate among the Commissioners of the Public Utilities Commission, a revised cost allocation policy would be adopted which contemplated equal costs per connection for an equal connection size to be applied to all occupied lots and all vacant lots with exemptions to be handled by an appeal process.

16     The Master Plan concluded with the observation that the plan had been presented based on certain assumptions and policies and these "components must be monitored to access the adequacy of the plan." It was noted an Official Plan process was "currently underway" and it was recommended that the Master Plan be updated through an addendum once the Official Plan is finalized, and then updated again every five years. The Official Plan has not been finalized and the Master Plan has not been updated.

17     In November 2003, the respondent issued a request for proposals to select an engineering consulting firm to conduct a Class EA on proposed sanitary sewer servicing for Bothwell. Earth Tech Canada Inc. ("Earth Tech") was selected.

18     Earth Tech had two public information meetings and consulted with Dr. Colby, the Medical Officer of Health for the Chatham-Kent Public Health Unit. Thereafter it issued an environment study report (the "ESR") dated March 31, 2005.

19     The ESR outlined the findings that the groundwater and surface water in Bothwell were being contaminated by failing/inadequate private septic systems. Its conclusion that the current level of sanitary servicing in Bothwell was not consistent with the minimum acceptable level of servicing identified in the Master Plan.

20     The preferred solution outlined in the ESR was the construction of a local sewage collection system in Bothwell. It was noted that the contentious issues related to funding the system and its cost to the property owners in Bothwell.

21     In April 2005 a Part II order was requested: the Ministry of the Environment was asked to order the respondent to comply with Part II of the Environmental Assessment Act, R.S.O. 1990, c. E.18, before proceeding with the project.

22     A petition from an organization known as Bothwell Concerned Citizens, of which the applicant is a member, organized a petition which showed that approximately 285 of 298 affected rate payers were opposed to the Sewer Project.

23     Ultimately, on January 24, 2007 the Minister denied the request for a Part II order and concluded that an individual environmental assessment was not required.

Approval of the Sewer Project and passage of the Sewer By-law

24     At a meeting on June 21, 2007 the respondent's Public Utilities Commission authorized the approval of the Sewer Project and the preparation of a report to the Council of the respondent (the "Council") for approval of the project and the related by-law under Part XII of the Municipal Act, 2001.

25     On August 13, 2007 the Council met and considered presentations respecting the Sewer Project from Bothwell Concerned Citizens and from the general manager of the Public Utilities Commission, who was assisted by representatives of Earth Tech.

26     At that meeting, Council passed a motion to defer passage of the Sewer By-law pending receipt of further test results for human waste in catch basins, water and soil samples taken by the Public Utilities Commission, a further report on financing options over a longer period of time, and the legal consequences of not acting on the ESR.

27     On September 20, 2007 at a meeting of the Public Utilities Commission, a motion to defer the Sewer Project indefinitely was defeated. Three commissioners voted in favour of the motion and three voted against the motion.

28     At a meeting the following month on October 18, 2007, the Public Utilities Commission passed a motion authorizing the administration to proceed with further testing of surface and catch basin waters with a representative from the Bothwell Concerned Citizens group to be present during the sampling.

29     GAP Enviro Microbial Services Ltd. was retained to arrange the sampling and perform the laboratory testing ("GAP"). A report from GAP was presented to the Public Utilities Commission at a meeting on July 19, 2008. It was noted that this report met all the requirements from the meeting of October 18, 2007. The applicant deposes in his affidavit that the results of the investigation by GAP showed "limited contamination confined to the downtown core; and, significantly less than the previous Earth Tech report." The respondent refers to the following conclusion in the report from GAP:

Contamination of storm water with seepage occurs in rural communities throughout the province of Ontario ... once the levels are measurable to the extent that the human fecal contamination is detected in storm water during dry and wet weather conditions in circumstances such as those found at Bothwell, there is a requirement to mitigate the contamination. Malfunctioning septic systems are a risk to public health by contaminating ground and surface water pathogens.

30     A motion was passed at the July 19, 2008 meeting of the Public Utilities Commission that its administration bring a report to the Council meeting on September 22, 2008. That report was prepared along with a draft of the proposed Sewer By-law, drafted in accordance with the waterline and sanitary sewer assessment policy for unserviced areas dated June 16, 2005 of the Public Utilities Commission according to Mr. Kissner, the general manager of the Public Utilities Commission.

31     The Sewer By-law was passed by Council at its September 22, 2008 meeting after a deputation was made by representatives of the Bothwell Concerned Citizens group, a report from the administration of the Public Utilities Commission was reviewed and questions in relation to that report were addressed. A representative from GAP was also in attendance to answer questions. The Sewer By-law was also considered in closed session by the Council after receiving legal advice. The minutes reflect a view that Council had a legal responsibility to proceed with the Sewer Project.

32     The affidavit of the applicant sets forth his belief that Council held a mistaken belief that the Sewer By-law is required because of a public health or safety issue. He points out that statements at the meetings of Council to the effect that the respondent could face charges pursuant to, or that the Ministry of the Environment could proceed with, a Section 62 order under the Environmental Protection Act was "obviously false." Such a statement was incorrect given that Section 62 of the Environmental Protection Act is irrelevant to any issue respecting sanitary sewers or the Sewer By-law. Indeed, when cross-examined on his affidavit, Mr. Kissner confirmed that the references to Section 62 of the Environmental Protection Act were not correct and he also confirmed that he had no information that the Ministry of the Environment was going to either require the Sewer Project to proceed or fine the respondent for not proceeding.

The 2005 Waterline and sanitary sewer assessment policy for unserviced areas of the Public Utilities Commission

33     Section 6 of that policy sets out criteria for water main or sanitary sewer initiation under four categories:

1. When the local improvement is initiated by the local area residents;

2. When a full cost recovery project is initiated by local area residents;

3. When a local improvement is needed for economic development in the municipality;

4. And lastly, when local improvement is needed for reasons of health and safety.

Under this latter category, the policy provides as follows: where there are public health and safety issues and a local improvement is deemed mandatory by the Public Utilities Commission to properly serve an area, the main will be initiated under Part XII of the Municipal Act, and there shall be no fault taken. A public meeting will be held to inform the ratepayers of the urgency of providing water service/sanitary service and that there will not be a vote and assessments will be made to all properties at the completion of the project, in accordance with the provisions of this policy.

34     Mr. Kissner acknowledged on his cross-examination that he could not provide minutes of a meeting of the Public Utilities Commission where a decision was made that there were public health and safety issues and where the Sewer Project was deemed mandatory. He attended the meeting of the Public Utilities Commission on June 21, 2007 where the Sewer Project was approved and did not recall any consideration of this policy at that meeting.

The jurisdiction of this court

35     Section 273(1) of the Municipal Act, 2001 sets forth the jurisdiction of the court on this application by providing as follows:

Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality.

36     However, it is important to note that the reasonableness of the By-law cannot be the issue before the court. Section 272 of the Municipal Act provides as follows:

A by-law passed in good faith under any Act shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law.

The scope of judicial review

37     There was no issue taken with the statutory authority and jurisdiction of the respondent to pass the Sewer By-law. Passage of the Sewer By-law was clearly intra vires (as per Section 10(2) of the Municipal Act, 2001).

38     I agree with the respondent that the scope of judicial review of the newly enacted Municipal By-law is narrow. As summarized by Belobaba J. in Langille (c.o.b. Rickshaw Runners of Toronto) v. Toronto (City) (2007), 33 M.P.L.R. (4th) 136 (Ont. S.C.J.), at para. 30:

I begin with the observation that the scope of juidicial review of a duly enacted municipal by-law has been narrowed by both case law and statute. The modern approach requires that judges accord a generous deference and a benevolent interpretation to the challenged bylaw and generally supports its validity whenever possible: Nanaimo (City). v. Rascal Trucking Ltd., [2000] S.C.J. No. 14 (S.C.C.) at para. 19, 35 and 36; Croplife Canada v. Toronto (City), [2005] O.J. No. 1896 (C.A.) at para. 18; Rogers, The Law of Municipal Corporations, (2nd ed., looseleaf) at 1029-1030).

39     Further, the Supreme Court of Canada provided that courts owe reasonable deference to the decisions of municipal bodies in Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342 at para. 36, quoting McLachlin J., as she then was, in Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231:

Or as more recently expressed in Shell, supra, per McLachlin J., at p. 244:

Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the "benevolent construction" ... Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives. [Emphasis added]

The applicant's position

40     According to the applicant, the vast majority of the public remains opposed to the Sewer By-law and believe that it is unnecessary.

41     The applicant's position is that there has been a breach of the respondent's obligation of natural justice, procedural fairness, its duty of good faith and due diligence in the passage of the Sewer By-law, and that the respondent's councilors "acted for mistaken, misguided or otherwise improper motive; and, that they acted with willful blindness to the truth respecting the need for, the opposition to and the effects of the By-law."

The respondent's position

42     The respondent asserts that it acted reasonably and fairly and the Sewer By-law was passed in good faith at a full public meeting where there was a presentation by the Bothwell Concerned Citizens group and a public debate.

43     The By-law was not approved until after extensive efforts were made to obtain public input.

44     The respondent submits that whether one agrees with the Sewer By-law or not is not the point. The respondent perceived a need and whether that was right or wrong is not the issue.

Was the Sewer By-law passed as a result of procedural irregularities including failure to comply with the waterline and sanitary assessment policy for unserviced areas?

45     The applicant points to the longstanding disagreement for the need for these services in Bothwell. He notes that there have been debates with respect to the need for this Sewer Project and there have been a number of viable alternatives identified. On his cross-examination, Mr. Kissner acknowledged these alternatives - an upgraded septic system for part of the community and a treatment plant for another part, and as well better enforcement of the policy respecting the maintenance of sanitary sewers. The applicant questions how urgent it really was for the Sewer By-law to be "rammed through" when there has been more than thirty years of debate.

46     The applicant asserts that the waterline and sanitary sewer assessment policy for unserviced areas of the Public Utilities Commission of the respondent was not adhered to and not followed. He points to the fact that there was no meeting referring to that policy when the decision was made to initiate the Sewer Project. He notes further that there was no decision that the Sewer Project was urgent or mandatory for health and safety reasons. Indeed, when it first went to the PUC for consideration in May 2007, it was deferred. On September 20th, 2007 a motion to defer the project indefinitely was defeated but, importantly, the vote was tied.

47     The applicant submits that the Public Utilities Commission was obliged, pursuant to its waterline and sanitary sewer assessment policy for unserviced areas, to give an unmistakable signal that they are authorizing a local improvement needed for reasons of health and safety; that they would proceed with the service; a public meeting will be held to inform the ratepayers of the urgency; that there will not be a vote, and that assessments will be made to all properties. The applicant asserts that an unmistakable signal must be given that the Public Utilities Commission is proceeding under its policy that allows them to "shut out the public."

48     It is the applicant's submission that the fact that there was no reference to this policy creates sufficient procedural irregularity that is fatal to the Sewer By-law.

49     I see these circumstances quite differently than the applicant. I agree with the respondent that members of Council perceived a need for the Sewer Project and members of the public may disagree with that decision. However, I am satisfied that as the respondent asserts, the Sewer By-law was ultimately approved after extensive efforts to obtain public input. It was ultimately passed at a full public meeting at which there were presentations by citizens of the community, including the group which the applicant represents and there was public debate. Specifically, there is no evidence of bad faith.

50     Bad faith was defined by Robins J. in Re H.G. Winton Ltd. and Borough of North York (1978), 20 O.R. (2d) 737 (Div. Ct.), at p. 744:

To say that Council acted in what is characterized in law as "bad faith" is not to imply or suggest any wrongdoing or personal advantage on the part of any of its members: Re Hamilton Powder Co. and Township of Gloucester (1909), 13 O.W.R. 661. But it is to say, in the factual situation of this case, that Council acted unreasonably and arbitrarily and without the degree of fairness, openness, and impartiality required of a municipal government [citations omitted].

Here, the Sewer By-law was considered at a number of public meetings before its passage. A number of scientific studies were obtained and considered. Members of the community had the opportunity for input. As such, these circumstances are quite distinct from those before the court in Winton, where a by-law was found to have been enacted in bad faith as it was "pushed through with inordinate speed ... the two parties most affected were kept in the dark ... [and] the by-law singled out one property to the clear detriment of its owners" (p. 745).

Are Sections 2(1), 8 and 9 of the Sewer By-law discriminatory?

51     Section 9 of the Sewer By-law provides that the capital costs of the Sewer Project will be recovered by the imposition of a "Connection Charge and additional charges specified" in the Sewer By-law which will be imposed on each owner of benefiting lands.

52     The applicant submits that the effect of the Sewer By-law is discriminatory because a property owner who connects and gets the benefit of the Sewer Project pays the same as someone who does not connect. Further, ratepayers who own vacant land or ratepayers whose buildings on land are not being used will pay the same as ratepayers who have buildings in operation on their lands. Overall, the position of the applicant is discrimination occurs because a ratepayer who actually receives the benefit of the Sewer Project pays the same as someone who does not have a functioning sewer system.

53     The applicant cites the Supreme Court of Canada decision in Regina v. Sharma (1993), 100 D.L.R. (4th) 167 at 179 for the proposition that any discriminatory By-law or regulation not authorized by statute is ultra vires and illegal and the general reasonableness of the distinction is not an issue.

54     Section 2(1) of the Sewer By-law defines the "Benefiting Lands" as "lands that will be able to obtain sewer services from the Sanitary Works, as described in Schedule "A"." I agree with the respondent that the Sewer By-law is not discriminatory. All of the lands described in Schedule "A" obtain the benefit of the Sewer By-law. That is, the land is being benefited whether or not the property owner makes the decision to hook into the sanitary sewer or not. These circumstances are quite distinct from ones where one or more class of property owners are treated differently by a proposed by-law. Here, all owners of the property described in Schedule "A" are treated the same and are entitled to receive the same benefit.

Are Sections 2(1) 8 and 9 of the Sewer By-law vague and uncertain?

55     The applicant points to the fact that a "Connection Charge" is not defined clearly in the Sewer By-law nor are the "Benefiting Lands." The applicant submits that the definition of Benefiting Lands and Connection Charge is not readily apparent from the wording of the Sewer By-law and citizens are unable to determine from reading the By-law whether they are affected by its provisions.

56     With respect to the definition of "Benefiting Lands" in Section 2(1), the applicant submits such definition is inadequate because Schedule "A" is a computer drawn map which does not contain clearly defined boundaries and it is not clear whether the affected lands are those shown on the whole map or just a portion of the main streets of Bothwell. In my view, the definition of "Benefiting Lands" is clear. The map shows the streets and lots affected within an area outlined by a marking which is defined in the legend as the "area boundary."

57     In addition, the applicant submits that Section 8 of the Sewer By-law refers to Part XII of the Municipal Act for the method and process by which the fees and charges under the Sewer By-law will be calculated, and points out that Part XII does not set out any such process and only cites the authority to impose charges. Further, the applicant submits that the Sewer By-law does not define the phrase "Connection Charge" nor does it contain criteria as to the steps to be taken to calculate the charge and therefore delegate discretion as to the basis and calculation of the charge.

58     I must also disagree with this contention of the applicant. Section 8 of the Sewer By-law provides that the capital costs will be recovered using the provisions of Part XII of the Municipal Act, 2001. It is Part XII that gives the respondent authority to recover the capital costs of the Sewer Project as the applicant notes. However, I disagree with the applicant that the Sewer By-law suggests that Part XII sets out the method and process by which the fees and charges will be recovered. Rather, Section 8 simply states that the capital costs "shall be recovered using the provisions of Part XII of the Municipal Act, 2001." Section 9 goes on to state that the capital costs "shall be recovered by the imposition of a Connection Charge" on the owners of each parcel of the Benefiting Lands. Section 9 concludes with the statement that "Connection Charges are specified in the Schedule of Connection Charges which is included in Schedule "B"." Schedule "B" lists the roll number, the 911 number and the road name of each property, together with the zoning assessment, sewer line assessment, Part XII Charge and Gross PUC Assessment for each property. Section 11 provides that interest on outstanding amounts paid by installment as well as interest on overdue payments shall be charged at the rate of interest which the respondent pays on its debenture obtained to finance the Sewer Project. In my view, none of these provisions are vague, nor do they amount to any improper delegation of authority. Nor do any of these provisions create any uncertainty. In essence, therefore, the cost of the respondent's borrowing will determine the interest rate charged to the property owners. That is not vague or a delegation of authority.

59     This is not a case where there are no criteria to allow someone to ensure that they are not violating a By-law, nor is it a situation where a municipality is delegating authority to a municipal official to essentially make the law.

The issue of the closed session

60     The applicant points to the fact that there was a closed session meeting which preceded the session of Council where the Sewer By-law was passed. There was a report and discussion in closed session for which privilege is being claimed. The closed session agenda reveals that Council also received a legal opinion on the proposed Sewer Project during the closed session. The applicant queries what possible reason there could be for a closed door meeting considering the history of the Sewer By-law and the number of times it was debated. The applicant asserts that dealing with the Sewer By-law in this way was not fair, transparent or democratic, and emphasizes the fact that there was nothing mandatory or urgent with respect to its passage.

61     I disagree with the applicant that this situation is analogous to RSJ v. London, [2005] O.J. No. 5037 (C.A.) aff'd, [2007] S.C.J. No. 29 (S.C.C.). In RSJ, an interim by-law was passed after two closed meetings and a short public session during which many other by-laws were passed without public debate or discussion.

62     I agree with the respondent that the Sewer By-law was passed after a long and public consultation in an open session of Council.

Conclusion

63     For the foregoing reasons, I have found no discrimination, arbitrariness or unfairness either procedurally or substantively, and I am satisfied the Sewer By-law was passed in good faith.

64     The application is dismissed. If necessary, counsel may make brief submissions on costs within 30 days.

L.C. LEITCH J.

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