City Council of Brampton was entitled to delegate to its Licensing Committee the power to make recommendations respecting a determination as to whether a “body rub parlour license” should be issued to the applicant. In making the recommendation, the Licensing Committee was required to hold a hearing. However, the City Council was entitled to accept such a recommendation without holding a further hearing in accordance with the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

23. December 2008 0

Administrative law – Decisions of administrative tribunals – Municipal councils – Rules and by-laws – Municipalities – Permits and licences – Planning and zoning – Judicial review – Compliance with legislation – Statutory interpretation – Versions of legislation – Validity – Procedural requirements and fairness – Discretion of delegated authority

1673233 Ontario Inc. (c.o.b. Eurohaven Spa) v. Brampton (City), [2008] O.J. No. 4983, Ontario Superior Court of Justice, December 2, 2008, J.D. Carnwath, J.M. Wilson and E.R. Kruzick JJ.

Council of the Corporation of City of Brampton (the “City Council”), refused to renew the Applicant’s body rub parlour license. The Applicant sought an order in the nature of mandamus requiring the City Council to issue a license to the Applicant to continue its business as a body rub parlour pending the outstanding re-zoning process.

The Applicant argued that the City Council was required to conduct a hearing in accordance with the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, if it refused to grant the license on the recommendation of the Committee of Council (Licensing). The Applicant further contended that the City Council breached its duty of procedural fairness by denying the Applicant the right to a fair hearing, and that it acted contrary to the legitimate expectations of the Applicant. Lastly, the Applicant argued that in all of the circumstances City Council’s decision was unreasonable.

The Court noted that in circumstances where a municipality is required to hold a hearing, such as in this licensing appeal, City Council is entitled by legislation to delegate certain municipal issues to a properly constituted committee council.

Under section 23.5(3) of the Municipal Act, S.O. 2001, c. 25, City Council was entitled to delegate either the power to make recommendations to the City Council, or the power to make the decision in question.

There was some uncertainty whether section 252 or section 23.5 of the Municipal Act, 2001 applied in this case. It was the Municipal Statute Law Amendment Act, 2006, S.O. 2006, c. 32 which added section 23.5 and repealed section 252. However, section 23.5 came into effect on January 1, 2007, and section 252 was repealed on January 1, 2008, creating a period of overlap. The Licensing Committee heard this matter on November 27, 2007 and rendered its decision on January 25, 2008.

The Court held that when two or more provisions of a statute are applicable to the same facts, it is presumed that both are to apply fully. This presumption can only be rebutted where a conflict can be shown, or where it is clear that one of the provisions is intended to be an exhaustive declaration of the applicable law.

The Licensing Committee was required to adhere to the principles of natural justice and the standards stipulated in the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22.

The Applicant asserted that the City Council had delegated decision-making power to the Licensing Committee. Therefore City Council, in accordance with section 23.5, was required to conduct a further hearing in the appeal from the Licensing Committee’s decision to issue a license. The Applicant argued that by failing to conduct a second hearing City Council was in breach of its duty of fairness.

The Court disagreed with this contention, holding that, based on the reasons of the Licensing Committee and the Minutes of the City Council meeting, the City Council had delegated to the Licensing Committee the power to make recommendations only, not the power to make the licensing decision.

The Applicant conceded that the Licensing Committee in conducting the hearing on November 27, 2007 respected all procedural requirements and there was no breach of procedural fairness.

In accordance with the procedure outlined in Licensing By-Law 1-2002 sections 53 and 54, City Council was entitled to make the final decision without a further hearing because a committee of City Council had conducted a compliant hearing.

Based upon the Court’s conclusion that City Council delegated only the power to make recommendations to the Licensing Committee, both provisions applied without conflict. In effect, it made no difference which of the two sections applied.

The applicant’s assertion that City Council was required to hold a second hearing, and by failing to do so was in breach of principles of natural justice was without merit.

Further, non-compliance with zoning for body rub parlour premises is grounds for refusal of a license under its licensing By-law and City Council’s decision to refuse the license was reasonable.

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