



COURT OF APPEAL FOR ONTARIO

CITATION: Seguin (Township) v. Hamer, 2014
    ONCA 108

DATE: 20140211

DOCKET: C57449

Juriansz, Pepall and Pardu JJ.A.

BETWEEN

The Corporation of the Township of Seguin

Applicant (Appellant)

and

Dennis Neil Hamer

Respondent (Respondent in Appeal)

Michael M. Miller, for the appellant

Richard A. Levin, for the respondent

Heard: January 30, 2014

On appeal from the order of Justice John R. McCarthy of
    the Superior Court of Justice, dated July 8, 2013.

ENDORSEMENT

[1]

The Township of Seguin (the Township) appeals the dismissal of its
    application for an injunction to restrain the respondent from, among other
    things, feeding any bears, contrary to By-law 2012-049 (the By-Law), and the
    granting of the respondents counter-application quashing the By-law.

[2]

The Townships application was supported by evidence that the respondent
    had breached the By-law by feeding bears and doing so by hand.

[3]

We find it unnecessary to deal with the Townships argument that the
    respondents counter-application was statute barred because it was filed more
    than a year after the By-law was enacted.

[4]

The appeal must be allowed on the merits.

[5]

The application judge accepted the respondents submission that a
    municipality is obliged to act in good faith to enact a valid by-law. While
    that is so, a by-law is presumed to be valid and enacted in good faith. The
    onus is on the person attacking it to establish the municipality acted in bad
    faith:
Grosvenor v. East Luther Grand Valley (Township)
, 2007 ONCA 55 at
    para. 28. As the application judge stated: the standard to be met in
    establishing bad faith is high and  courts should be slow to find bad faith in
    the conduct of democratically elected representatives acting under legislative
    authority.

[6]

The respondent stressed that the Township did not point to any
    investigation, research or analysis to support the By-law's rationale and
    submitted this absence was sufficient to establish it acted without the
    requisite good faith.

[7]

We agree with the comments of Twaddle J.A. of the Manitoba Court of
    Appeal in
Mr. Pawn Ltd. v. Winnipeg (City)
, 2002 MBCA 2, 170 Man. R.
    (2d) 1, at para. 11:

City Council is a legislative body, not a court. It must, of
    course, act within the authority conferred on it and, in doing so, enact its
    by-laws in good faith and not for an improper purpose. There is, however, no
    requirement that Council have evidence of anything before enacting a by-law. In
    particular, there is no requirement that Council have evidence of potential
    harm before enacting a by-law designed to prevent such harm. Council can enact
    laws within its authority on whatever information it chooses, be that
    information placed before it by evidence or representation or even information
    within councillors own knowledge.

[8]

As Laskin J.A. explained in
Equity Waste Management of Canada v.
    Halton Hills (Town)
(1997), 35 O.R. (3d) 321 (C.A.), at p. 340:

Bad faith by a municipality connotes a lack of candour,
    frankness and impartiality. It includes arbitrary or unfair conduct and the
    exercise of power to serve private purposes at the expense of the public
    interest

[9]

The respondent's evidence fails to establish anything resembling bad
    faith in this case.

[10]

The
    Township indicated in the By-laws recitals that it was motivated by a concern
    that "intentional human artificial feeding of bears causes an escalation
    in a threat to public health, safety and well being [
sic
] of the residents
    and visitors of the Township of Seguin.

[11]

Thus,
    the By-law on its face addresses concerns well within the Township's power to
    enact and competence.

[12]

It
    seems to us the respondent's evidence seeks to have the court engage in a review
    of the wisdom of the By-law. This the court cannot do.

[13]

The
    appeal is allowed, the order below quashing the By-law is set aside, and a
    permanent injunction shall issue restraining the respondent from deliberately feeding
    any bear or providing access to food to any bear or placing or storing any attractants,
    as defined by the By-law, outdoors for the purpose of attracting or feeding any
    bear.

[14]

The
    appellant is entitled to its costs of the motion in the amount fixed by the
    motion judge in favour of the respondent. Costs of the appeal in favour of the
    appellant are fixed in the amount of $5000.00 all inclusive.

R.G.
    Juriansz J.A.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


