





CITATION:
Drake v. Stratford
          (City), 2011 ONCA 98



DATE: 20110208



DOCKET: C52172



COURT OF APPEAL FOR ONTARIO



Sharpe, Blair and
Rouleau
JJ.A.



BETWEEN



Thomas Glen Drake and David Hugh Drake



Applicants (Appellants)



and



The Corporation of the City of Stratford



Respondent (Respondent in Appeal)



D. Andrew Thomson, for the appellants



Michael A. Van
Bodegom
and Daniel W.
Veinot
, for the respondent



Heard:
February 1, 2011



On appeal from the judgment of Justice L.C. Templeton of the
          Superior Court of Justice dated April 29, 2010.



ENDORSEMENT



[1]

T
his appeal arises from a dispute between the appellants and
    the respondent City regarding access to Joffre Street, a municipal street that
    ends in a cul-de-sac, bordered by a grassy strip of land owned by the City, at
    the back of the appellants property.  The
    appellants wish to access the back of their property from Joffre Street to
    facilitate a building project.  This
    would involve crossing the grassy strip of land owned by the City that
    separates the appellants property from the Joffre St. cul-de-sac.

[2]

The appellants request was first considered by the
    Citys Public Works Sub-Committee which recommended that they be allowed
    access.  However, the issue was then
    referred to the Public Works Committee, consisting of all members of Council,
    which recommended against the appellants request.  That recommendation was accepted by City
    Council and the appellants request was denied.

[3]

The appellants brought an application for an order
    pursuant to rule 14.05 (2) and the
Municipal
    Act, 2002
, declaring the resolution denying their request to be invalid and
    of no force and effect and other related relief.

[4]

The application judge found that the grassy strip
    separating the appellants property from Joffre Street was City property that
    did not form part of the street and that the appellants had no right to use it
    to gain access to their property.  However,
    the application judge concluded that the City Council resolution denying the
    appellants request was tainted by bad faith on the ground that the process
    lacked the candour, frankness and impartiality that is required of municipal
    bodies because:

·

notice of the proceedings had been given
    only to neighbours who had complained;

·

the appellants were not given access to
    letters and complaints submitted to the City; and

·

the
Public Works Committee and/or Council considered objections relating to the
    installation of a permanent driveway which was not what the appellants had
    requested.

[5]

The application judge ordered that the appellants
    request for access be recommenced on full notice to all residents in the area
    and that the applicants and objectors be afforded a full right of disclosure of
    material evidence to be considered by the deciding body.

[6]

The appellants appeal the application judges dismissal
    of their claim to a right of access and the City cross-appeals the order
    nullifying the resolution denying the appellants request and ordering further
    proceedings

Analysis

1. Did the application judge err in finding that the
    appellants had no right of access?

[7]

The appellants submit that when a private owner
    conveyed to the city the property for the Joffre St. cul-de-sac in 1954, there
    was dedication by the owner and acceptance by the City of the entire parcel as
    a public road.

[8]

We are unable to accept that submission.  The City by-law enacted at the time of the
    conveyance from the private owner in 1954 accepted as part of Joffre St. only a
    specifically described parcel of land.  It
    is common ground that the parcel of land as described in the by-law excluded
    the grassy strip that is at issue in this appeal.  In our view, the combined effect of the
    conveyance and the by-law was to transfer the entire parcel to the City but to
    limit the Citys acceptance of the parcel as a public road to that portion of
    the lands so described.

[9]

The Citys acceptance of only part of the conveyed land
    as a public road is confirmed by the usage in the succeeding years.  Only part of the parcel is paved and used as a
    public road and the City has consistently maintained that the grassy strip is a
    distinct piece of city property that does not form part of the public road.

[10]

The appellants rely on
Stager v.
Muskoka
Lakes (Township)
(1989), 71 O.R. (2d) 126 (Div. Ct.).  That case is distinguishable.  In
    the case at bar, the municipal by-law shows that only a portion of the lands
    conveyed by the former owner were accepted for purpose of creating Joffre St. and
    only the portion accepted became a public road.

[11]

Accordingly we reject the submission that the
    application judge erred by finding that the grassy strip did not form part of
    Joffre St.

2. Did the trial judge err in finding that the Citys
    consideration of the appellants request for permission to access Joffre St.
    was tainted by bad faith?

[12]

We agree with the City that the application judge
    appears to have misapprehended the evidence as to what occurred before the
    Council.  With respect to the
    notification of other parties she confused or conflated the request and issue
    before her and the appellants earlier request in 2005 for permission to access
    the Joffre Street.

[13]

We also agree with the City that the application judge
    erred by weighing in her determination that the entire process was deficient because
    of the alleged procedural defects that occurred before the Public Works
    Sub-Committee.  As the appellants were
    successful before the Sub-Committee we fail to see how any defect in the
    process at that level infected the outcome before the Council.

[14]

We see no basis in the record for the application judges
    conclusion that the Public Works Committee and/or Council were diverted from
    their task by considering objections relating to the installation of a
    permanent driveway rather than the request for temporary access.  That contention is not supported by the
    evidence including the minutes of the meetings.

[15]

More fundamentally, it is our view that the application
    judge erred by applying standards of procedural fairness that are more
    applicable to an adjudicative body than to the proceedings of an elected
    municipal council.  The Council is an
    elected legislative body. It was under no statutory or common law duty to
    provide a quasi-judicial hearing to the appellants who were requesting access
    over the Citys property.

[16]

In any event, the appellants attended three meetings of
    Council or Council committees and they were afforded the opportunity to make
    submissions.  They were permitted to file
    detailed written submissions and they did not object at any time to the process
    adopted at the various meetings they attended.  They did not request adjournments, nor did
    they ask the City to take any other procedural step in the course of these
    various meetings.

[17]

The appellants were afforded the opportunity to present
    their case and the opportunity they were afforded was sufficient to satisfy any
    duty imposed on the City and to displace any suggestion of bad faith on the
    part of the City.

Disposition

[18]

Accordingly, we dismiss the
appeal,
allow the cross-appeal and set aside paragraphs 2 and 3 of the application
    judges order.  The City is entitled to
    its costs of both the application and the appeal fixed at $20,000 for the
    application and $12,000 for the appeal, both sums inclusive of disbursements
    and applicable taxes.

Robert J. Sharpe

R.A. Blair J.A.

Paul Rouleau J.A.


