Dockets LA96008, LA96009, LA96010, LA96011 and LA96012
Order LA97-17

IN THE MATTER of an appeal by Norman Hall, et al. against a decision by the City of Charlottetown dated March 26, 1996.

BEFORE THE COMMISSION

on Thursday, the 11th day of December, 1997.

Wayne D. Cheverie, Q.C., Chair
Arthur Hudson, Commissioner
Weston Rose, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

Written submissions were filed by:

1.    For the Appellants

Norman G. Hall

2. For the Respondent (City of Charlottetown)

Counsel:
David W. Hooley

3. For the Developer (Enterprise P.E.I.)

Counsel:
John K. Mitchel

Reasons for Order

1. Introduction

This Order and Reasons for Order pertains to preliminary matters only.

This is an appeal under section 28 of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. 8.

The Appellants in this matter are:

  • Norman Hall - identified as Appeal LA96008;

  • Kenneth L. Thompson - identified as Appeal LA96009;

  • Dennis Williams - identified as LA96010;

  • Glen A. Lea - identified as LA96011; and

  • Troy Handren - identified as LA96012.

    •

Norman Hall and Kenneth Thomson filed Notices of Appeal on April 12, 1996. Dennis Williams, Glen Lea and Troy Handren filed Notices of Appeal on April 15, 1996. All parties are appealing the decision by the City of Charlottetown (the City) to rezone lands adjoining Upton Road from Single Family Residential (R1) to Industrial (M1) and amend the Official Plan accordingly.

On January 29, 1997 the Commission held a meeting with all parties to discuss preliminary matters. At that meeting the City raised as preliminary matters the issue of compellability of City Councilors to appear before the Commission and the jurisdiction of the Commission to hear the appeal.

On February 20, 1997 the Commission held a hearing to hear submissions on preliminary matters only. At the commencement of this hearing the City raised an objection regarding the Commission's jurisdiction to hear this appeal. The Commission considered the objection and issued an oral decision ordering that the hearing be stayed until a decision was rendered by the Supreme Court of Prince Edward Island (Appeal Division) on the Stated Case.1

On July 18, 1997 the Supreme Court of Prince Edward Island (Appeal Division) rendered its decision on the stated case, which confirmed, inter alia the Commission's jurisdiction to hear appeals under the Planning Act.

By letter dated August 19, 1997 the Commission advised all parties that the appeals would resume and that there remains only one outstanding issue - the compellability of City Councilors to appear before the Commission. The parties were requested to file written submissions on this matter. Submissions were received by the City of Charlottetown dated September 10, 1997, Enterprise P.E.I. dated August 25, 1997 and Norman Hall on behalf of all of the Appellants dated September 17, 1997.

For administrative purposes the hearings for the appeals filed by the Appellants in this matter have been consolidated.

2. Discussion

The City

The City's position may be summarized as follows:

The City argues that Council's decision is a collective decision of the body vested with the authority to decide zoning matters in the City. When Councillors determine zoning matters, the City further argues, they are acting in a quasi-judicial capacity. The City states in its submission,

"...if their decision is made the subject of review proceedings, be it to the Court on Judicial Review, or on appeal to an administrative tribunal, the Councillors are not compellable witnesses. They cannot properly be compelled to testify in subsequent proceedings where their decision is under review."

The City contends that in this appeal no useful purpose is served by having Councillors testify about their recollection of what might have been in their heads at the time the decision was made. The City further contends that once Council makes a decision, it stands on its own to be reviewed, either before the Court on Judicial Review or by way of an appeal to the Commission. In the City's opinion, it is for the Court on review, or the Commission on appeal, to weigh the evidence against Council's decision and on that basis to objectively determine if the decision of Council should be interfered with.

The Developer

In a letter to the Commission dated August 25, 1997 John Mitchell states that Enterprise P.E.I takes no position with regards to the compellability of City Councillors.

The Appellants

The position of the Appellants may be summarized as follows:

The Appellants submit that because certain City councillors are perceived to have been biased and having real or perceived conflicts of interest, it is necessary to call before the Commission as witnesses, those involved in the decision to rezone, whether voluntarily or by subpoena.

The Appellants argue that while the City makes reference in its submission to case law with respect to the non-compellability of persons making decisions in a quasi-judicial capacity, this is probably appropriate where the decision makers have a policy framework and related legislative authority duly approved. The Appellants submit that such was not the case in the decision under appeal, that City Council's decision was not a joint decision based on any approved policy with respect to industrial development in the City, but it was a decision based on nine individual assessments of what was "best" for the interests, public or private, involved.

3. Findings

The Island Regulatory and Appeals Act R.S.P.E.I. 1988, Cap. I-11 provides in subsections 3(7) and 3(8) as well as in section 8 that the Commission may determine and decide its own procedure. Therefore, the Commission as an appellate tribunal, may determine whether it is appropriate to compel City councillors to testify at the hearing on this appeal.

In arriving at its decision, the Commission reviewed the legislation and the decisions of the courts on the issue of compellability of municipal councillors. Based on this review, the following points emerge:

  • Municipal councillors are not "officers or servants" of a municipal corporation and therefore, are not compellable; and

  • Municipal councils are quasi-judicial bodies that function in a quasi-judicial capacity when making decisions on zoning and therefore councillors are not compellable with regard to being questioned on their decision making process.

The Charlottetown Area Municipalities Act does not deal with the issue as to whether councillors are compellable nor does it state who are the officers and servants of the municipal corporation. However, Ian Rogers in The Law of Canadian Municipal Corporations, states that as a general rule, officers or servants of a municipal corporation such as the mayor and the clerk are subject to examination for discovery, but this does not include council members who are legislative and not executive officers.2

In the case of Agnew and Ontario Association of Architects (1987), 64 O.R. (2d) 8 (H.S.D.C.), an unsuccessful applicant to the Experience Requirements Committee of the Ontario Association of Architects sought to subpoena the members of the committee to testify. The court found that as judges are not compellable to testify about their decisions, the same principles would apply to an administrative tribunal. The court relied on the practical considerations that judges would spend more time testifying about their decisions than making decisions. By allowing appellants to compel judges and tribunal members to testify about their decisions, would be inconsistent with any finality of a decision. The court found:

…that members of statutory tribunals are no more compellable about their decision process than are judges, and that any party issuing a subpoena against a member bears a burden of persuasion to establish that the purpose of the subpoena, and the actual questions to be asked under its authority, would not involve any aspect of the decision process."3

In its decision, the court found that the burden of persuasion had not been met to allow the appellant to examine the board members. The questions that the appellants wished to ask the board members, i.e., what materials did the board consider, whether the board members had prejudged the matter, whether the board members had made their decision as individuals, etc., were questions that went directly to the heart of the decision-making process.

The court found in the case of Davies v. The Sovereign Bank (1906) 12 O.L.R. 558 that municipal councillors are merely legislative officers and have no authority to act for the corporation, except in conjunction with other persons constituting a quorum:

"While aldermen, as members of the municipal council, are in one sense officers of the corporation, I do not think the framers of the rule intended to include them in the expression "officer or servant of such corporation." They are merely legislative officers of the corporation, and with the exception of the mayor or other head no individual executive or ministerial duties are imposed upon them. They are not employed by, nor are they in any way under the control of the corporation while in office. They have no authority to act for the corporation, except in conjunction with other persons constituting a quorum."4

The case of Broda v. Edmonton (City) (1989), 102 A.R. 255 (Q.B.) dealt directly with the question of whether or not City councillors and officers and employees of the City's Planning and Development Department were compellable to be discovered in a judicial review proceeding. This case accepts the principle found in Rogers' Law of Canadian Municipal Corporations – that City councillors are generally not compellable to attend examinations for discovery and further that councillors are not considered officers or servants within the scope of the rule providing for the examination of officers and servants of corporations.

In this case, the court found that City councillors function in a quasi-judicial capacity when making decisions on zoning and therefore, are not compellable with regards to being questioned on their decision making process. The court found:

"In this case, City Council was considering the zoning of a particular property and thus was sitting in a quasi-judicial capacity. When sitting in this capacity, the members of City Council can no more be questioned about or examined on their decisions than can members of a tribunal such as a Development Appeal Board, the Land Compensation Board or the Alberta Planning Board when their decisions are under review."5

The Commission also examined the case of Ward v. Shell Mex and B.O. Ltd. (1951), vol. 2 K.B.D. 904 where an appellant was appealing a medical board's decision under the National Insurance Act. Here the appellant wanted to question the doctor, a member of the medical board who made the decision as to the appellant's condition. The court found that as a judge cannot be called upon to testify as to his judgment, neither could the doctor on the board. It adopted the comments of the court in the case of Duke of Buccleuch v. Metropolitan Board of Works (L.R. 5 H.L. 432) which stated that an award or decision once made must stand on its own and cannot be explained, contradicted or varied by a council member.

Further to this question, the Commission feels it important to note that the appeal before the Commission is one of a hearing de novo. As stated in the recent decision by the Appeal Division of the P.E.I. Supreme Court, the Commission, if it so decided, could substitute its decision for the one being appealed.6 Therefore, it is the Commission's opinion that to ascertain what was on the minds of individual councillors when council made a decision is of no value to the Commission in these deliberations.

The Commission is of the opinion that the questions posed by the Appellants in the submission by Norman Hall, dated September 17, 1997, are directly related to the decision making process. The Commission also believes that to allow an appellant the opportunity to examine councillors on "what they were thinking" at the time of the decision could be quite burdensome to the appeal process and serve limited usefulness to the Commission in its decision.

In short, the law is clear. In cases such as this one, municipal councillors are not compellable as witnesses.

For the reasons stated, the Commission finds that City councillors are not compelled to testify at the hearing on this appeal.

4. Disposition

An Order will therefore be issued that members of council for the City of Charlottetown are not compelled to testify before the Commission with respect to this appeal.

Order

WHEREAS Norman Hall, Kenneth L. Thompson, Dennis Williams, Glen A. Lea, and Troy Handren (the Appellants) have appealed a decision by the City of Charlottetown, dated March 26, 1996 to rezone lands adjoining Upton Road from Single Family Residential (R1) to Industrial (M1) and amend the Official Plan accordingly;

AND WHEREAS the City of Charlottetown has raised a preliminary matter arguing the City councillors may not be compelled to appear before the Commission;

AND WHEREAS the Commission received written submissions from the parties on this matter;

AND WHEREAS the Commission has issued its findings in this matter in accordance with the Reasons for Order issued with this Order;

NOW THEREFORE, pursuant to the Island Regulatory and Appeals Commission Act and the Planning Act;

IT IS ORDERED THAT

1. Members of council for the City of Charlottetown, are not compelled to testify before the Commission with respect to this appeal.

DATED at Charlottetown, Prince Edward Island, this 11th day of December, 1997.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair

Arthur Hudson. Commissioner

Weston Rose, Commissioner

NOTICE

Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:

12. The Commission may, in its absolute discretion, review, rescind or vary any order or decision made by it or rehear any application before deciding it.

Parties to this proceeding seeking a review of the Commission's decision or order in this matter may do so by filing with the Commission, at the earliest date, a written Request for Review, which clearly states the reasons for the review and the nature of the relief sought.

Sections 13.(1) and 13(2) of the Act provide as follows:

13.(1) An appeal lies from a decision or order of the Commission to the Appeal Division of the Supreme Court upon a question of law or jurisdiction.

(2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.

1    On November 8, 1996, the Commission stated a case to the Supreme Court of Prince Edward Island (Appeal Division) under Section 14(1) of the Island Regulatory and Appeals Commission Act, R.S.P.E.I. 1988 Cap. I-11.

2    Ian Rogers, Law of Canadian Municipal Corporations (2nd ed.), p.1333.

3    Agnew and Ontario Association of Architects (1987), 64 O.R. (2d) 8 (H.C.D.C.), p.15.

4    Davies v. The Sovereign Bank (1906) 12 O.L.R. 558.

5    Broda v. Edmonton (City), 102 A.R. 255 (Q.B.), p. 261.