



COURT OF APPEAL FOR ONTARIO

CITATION:  Georgina (Town) v. Blanchard, 2016 ONCA 122

DATE: 20160212

DOCKET: C60424

Hoy A.C.J.O., Pardu and Roberts JJ.A.

BETWEEN

The Corporation of the Town of Georgina

Respondent

and

Marvin Blanchard and 1124123 Ontario Limited

Appellants

AND BETWEEN

Marvin Blanchard,
    1124123 Ontario Limited and Baldwin 33, Inc.

Appellants

and

The Corporation of the
    Town of Georgina, Her Majesty the Queen in Right of Ontario and the Ontario Aggregate
    Resources Corporation

Respondent

Lawrence Hansen, for the appellants, Marvin Blanchard,
    1124123 Ontario Limited and Baldwin 33, Inc.

John R. Hart, for the respondent, The Corporation of the
    Town of Georgina

Heard:  February 2, 2016

On appeal from the judgment of Justice Barry G.A.
    MacDougall of the Superior Court of Justice, dated April 8, 2015.

ENDORSEMENT

Background

[1]

In the course of considering whether to grant the appellants a site
    alteration permit for a property in Georgina, the respondent, The Corporation
    of the Town of Georgina, relied on s. 239(2)(f) of the
Municipal Act, 2001
, S.O. 2001, c. 25
(the 
Act
)
    to hold two
in camera
meetings. That section permits a municipality to
    depart from the normal requirement that all meetings be held in public if the
    subject matter being considered is advice that is subject to solicitor-client
    privilege.

[2]

The appellant requested that the respondent appoint an investigator
    under s. 239.2 of the
Act

to investigate if the subject matter
    considered at the

in camera
meetings indeed fell within the
    exception in s. 239(2)(f). Consistent with its practice, the respondent appointed
    Local Authority Services (LAS), a division of the Association of
    Municipalities of Ontario, as investigator and, as in all cases, LAS delegated
    its duties to the firm of Amberley Gavel Ltd. Brenda Glover, a lawyer,
    conducted the investigation on behalf of that firm. She concluded that the
    matter deliberated at the closed meetings was advice that is subject to
    solicitor-client privilege. The application judge dismissed the appellants
    subsequent application to set aside the investigators report.

[3]

The application judge concluded that the effect of ss. 223.16 and
    239.2(9) of the
Act

was that the court could only set aside the
    investigators report on the ground of lack of jurisdiction. He also rejected
    the appellants argument that the investigators reference in one paragraph of her
    report to a site alteration
agreement
(as opposed
    to an application) demonstrated that, in conducting her investigation, the
    investigator misdirected herself about the purpose and scope of her investigation
    and therefore exceeded her jurisdiction.

[4]

The appellants argue that the application judge made several errors. We
    address them in turn.

Did the application
    judge err in concluding that s. 223.16 of the
Act
applied to the investigator?

[5]

The appellants first, and principal, argument is that the application
    judge erred in concluding that the court could only set aside the
    investigators report on the ground of lack of jurisdiction. Under s. 239.1
    of the
Act
, a person may request that an investigation of whether a
    municipality was permitted to close all or part of a meeting to the public be
    undertaken: (a) by an investigator referred to in subsection 239.2 (1); or (b)
    by the Ombudsman appointed under the
Ombudsman Act
, if the municipality
    has not appointed an investigator referred to in subsection 239.2 (1).

[6]

Section 223.16 provides as follows:

No proceeding of the Ombudsman under this part shall be held
    bad for want of form, and, except on the ground of lack of jurisdiction, no
    proceeding or decision of the Ombudsman is liable to be challenged, reviewed,
    quashed or called in question in any court.

[7]

The appellants submit that the lack of jurisdiction limitation in s.
    223.16 applies only to investigations in respect of closed meetings conducted
    by the Ombudsman.

[8]

We reject this argument. In our view, it is clear that that the lack of
    jurisdiction limitation also applies to the investigator.

[9]

Section 239.2(9) of the
Act
provides that s. 223.16 (among
    others) applies with necessary modifications with respect to the exercise of
    functions described in this section. This section is s. 239.2 and the functions
    described in s. 239.2 include the function of an investigator to investigate
    in an independent manner, on a complaint made to him or her by any person, whether
    the municipality or a local board has complied with section 239  in respect of
    a meeting or part of a meeting that was closed to the public,
and to report on the investigation
 (emphasis added).

[10]

The
    investigator was appointed pursuant to s. 239.2 and exercised the function
    described in that section. Section 223.16 therefore applies with necessary
    modifications.

[11]

The
    necessary modifications in this context are to substitute investigator for  
    Ombudsman, and report for decision. We therefore agree with the
    application judge that the effect of ss. 223.16 and 239.2(9) is that, in the
    face of a challenge arising out of the investigators exercise of her function
    under s. 239.2, the court can only set aside the investigators report on the
    ground of the investigators lack of jurisdiction.

[12]

Given
    our conclusion on this issue, we need not address the appellants arguments
    seeking to challenge the exercise by the investigator of her function under s.
    239.2 other than on the ground of lack of jurisdiction.

Did the
    application judge err in concluding that the investigators reference to a site
    alteration
agreement
(as opposed to an
    application) in her report was a misdescription and likely a typographical
    error?

[13]

The
    appellants second argument is that the application judge erred in concluding
    that the investigators reference to a site alteration
agreement
in one paragraph of her report was simply a misdescription and likely a
    typographical error. They renew their argument below that this reference demonstrates
    that the investigator misdirected herself about the purpose and scope of her investigation
    and therefore exceeded her jurisdiction.

[14]

We
    reject this argument. It is clear from the investigators report as a whole
    that the investigator understood that the matter before the respondent was a
    site alteration application, and not a site alteration agreement. The
    appellants have failed to establish lack of jurisdiction.

Should the investigators
    report be set aside because the municipality did not prove compliance with its
    duties under the
Act
in appointing the investigator?

[15]

The
    appellants third argument is that, even if the limitation in s. 223.16 applies
    to the investigator, such that the exercise by the investigator of her function
    under s. 239.2 cannot be challenged other than on the basis of lack of
    jurisdiction, it does not apply to the respondent municipality. They argue that
    the investigators report accordingly can and should be set aside because the
    respondent had a duty to demonstrate that it complied with s. 239.2(3) of the
Act
in appointing the investigator and it failed to discharge that duty. They submit
    that the respondent must prove the particular expertise of the investigator to
    investigate and advise whether the advice given in the closed meeting was
    subject to solicitor-client privilege.

[16]

Assuming
    but not determining that s. 223.16 does not limit the ability of an affected
    party to seek to set aside an investigators report because of a municipalitys
    non-compliance with s. 239.2(3), we nonetheless do not give effect to this
    argument.

[17]

Section
    239.2(3) requires that, in appointing an investigator, the municipality shall
    have regard to, among other matters, the importance of the matters listed in [s.
    239.2(5)]. Those matters are: (a) the investigators independence and
    impartiality; (b) confidentiality with respect to the investigators
    activities; and (c) the credibility of the investigators investigative
    process.

[18]

In
    oral submissions, the appellants concede that the respondent may well have
    complied with this section in appointing the investigator. Their argument is
    that the respondent has failed to prove that it did so. They argue that the
    respondent must prove the particular expertise of the investigator to
    investigate and advise whether the advice given in the closed meeting was
    subject to solicitor-client privilege. However, they provide no authority for
    their argument that a municipality is required to prove compliance with s.
    239.2(3).

[19]

We see no basis to impose such an onus on a municipality.
    Moreover, there is no reason to doubt that the respondent complied with s.
    239.2(3). The process in this case was transparent. The investigation was
    conducted by a lawyer. And, contrary to the appellants submissions, we would
    characterize the concept of solicitor-client privilege as a basic one.

Disposition and Costs

[20]

For
    the reasons set out above, we dismiss this appeal. The respondent shall be
    entitled to its costs of the appeal in the amount of $7500, inclusive of HST
    and disbursements.

Alexandra
    Hoy A.C.J.O.

G.
    Pardu J.A.

L.B.
    Roberts J.A.


