Municipality Refrains From Changing Controversial Name

When both government and intelligence agencies note that white supremacy is the greatest threat facing Canada today, it’s important to look for signs of these movements, and their symbols.

One of those most obvious symbols to many people would be the swastika, given its association with the Nazi movement in Germany, and hate groups invoking their doctrine worldwide since WWII. Although this is a symbol that is indeed used by many of these groups, they also use many other symbols to hide or obscure their ideology. The swastika itself dates back thousands of years, especially in South Asia, and was appropriated and popularized by the Nazis.

The question of whether the swastika today is necessarily a symbol of hatred in Canada today was recently reviewed in a civil context by the Ontario Superior Court of Justice in Guzar v. The Corporation of the Township of Puslinch.

The case involves a private road near Puslinch Lake in Puslinch, Ontario, a small township between Guelph and Hamilton. This road has the unfortunate name of Swastika Trail, a name that dates to at least the early 1920s, well before its use by Nazis and hate groups. The road itself is owned by a private corporation, but runs into a municipal road that is accessible by the public and used by the public as a thoroughfare. The court estimated that 54 people lived on this private road.

The court did not deny that to many people in Canada today that the swastika “is an abhorrent symbol, reminiscent of the atrocities perpetrated by the Nazis during World War II.” That was not the nature of the dispute, however, which instead focused on the judicial review of the decision by the Council for the Township of Puslinch in a vote to change the name.

Two residents on or around Swastika Trail complained about the name of the road around May 2017. In conjunction with other complaints about the road relating to confusion, the Council voted to obtain a report, which was prepared on August 9, 2017. The report included a number of recommendations on the process needed to change the name, and then passed a resolution on September 6, 2017 encouraging the residents to consider renaming the road.

The Cottagers’ Association, an unincorporated group of residents living on the private road, voted in favour of retaining the name on November 1, 2017. Part of the rationale appears to be based on the costs and inconvenience of changing the name, including the expenses involved with updating legal documents and government identification. However, one of the residents who initially complained about the name was unhappy with the process used, which included in his description an unfair emphasis on the pre-Nazi use of the symbol without adequate information about its current or more recent use.

A second report was prepared on December 6, 2017, which included reference to the legal process necessary to change a road’s name under section 48 of the Municipal Act, 2001, requiring a municipality to provide public notice of an intention to pass a by-law that would change a road name.

Although owners of private roads are responsible for all road work and maintenance on those roads, they do have some municipal services provided on them. The Municipal Act provides municipalities significant powers for public roads, but very limited powers to private roads. The December 6, 2017 report explained the necessary process under the Act as follows:

Should Council wish to proceed with renaming Swastika Trail, a resolution would need to be passed indicating Council’s intent to change the name of Swastika Trail, and it would direct staff to engage in the following process:

• A letter be sent to all property owners on Swastika Trail asking for an alternative name. Each property would be able to submit one alternative option. The letter would encourage residents of the Trail to work together as part of their submission process, so that the submitted name list is the best reflection of the preferences of the community.

• Staff would come back to Council with a report outlining the submitted alternative names, along with comments from all relevant agencies (Fire and the County Emergency Management Department).

• Council would pass a resolution outlining their preferred alternative name.

• Staff would give public notice of the Township’s intention to pass the name changing by-law. Notice would be posted on the Township’s website and a letter would be sent to all Swastika Trail property owners. Notice would note the date of the Council meeting when adoption of the by-law will be considered.

• Staff would bring forward the by-law at the prescribed meeting.

Public notice was provided for a vote on December 20, 2017, which included far more extensive written and oral submissions on the subject. The court summarized the proceedings as follows,

[30] Many of the delegates provided written submissions, which are included in the record. Delegates who supported renaming the Road made reference to the history of the swastika since World War II, how it remains associated with hatred, white supremacy and anti-Semitism, and how they do not want their community to be associated with this history. Delegates who opposed the name change made reference to the fact that the Road had been named in the 1920s at a time when the swastika was not associated with the Nazis, that there would be a significant cost and inconvenience to changing the addresses on the residents’ pieces of identification and that the issue was very divisive in the community.

After reviewing these written submissions and hearing the oral submissions for over two hours, the Council voted against a resolution to change the name. One of the original residents complaining about the name then sought judicial review of the decision, claiming the Council had sub-delegated its decision to The Cottagers’ Association, fettered its power based its decision on the vote already taken by The Cottagers’ Association, and was unreasonable because it was based on a flawed vote of The Cottagers’ Association.

The Township rejected this characterization, and also relied upon section 272 of the Municipal Act, 2001, which prevents the court from quashing or reviewing a by-law passed in good faith. The exception to this would be under Section 273(1), which allows for quashing a by-law or resolution for illegality.

Although the Township solicited the views of the residents through The Cottagers’ Association, it provided individual members of the public and the residents with the complaints an opportunity to provide their own views prior to conducting the vote. The court concluded that the decision-making process did not unlawfully sub-delegate the decision-making power of the Township,

[52] Once the vote was held, Council did not treat the Cottagers’ Association’s decision as binding, but, rather, the record shows that it took a number of further steps following receipt of the results before deciding not to change the name of the Road. First, staff prepared a further report setting out the results of the vote and two options for Council, namely adopting the results of the vote or initiating a name change process. Second, Council held a meeting at which it considered the staff report and decided to defer its decision on the issue to December 20, 2017, to give the public an opportunity to participate. Third, on December 20, 2017, Council received extensive written submissions and heard from 14 different delegates, who expressed views for and against the name change. Finally, Council voted on two separate resolutions that would have initiated a name change. While they voted against both resolutions, it is notable that their vote was not unanimous and that the resolutions were not framed as a vote to accept the Cottagers’ Association decision but rather as a vote to initiate a process to change the name of the Road.

Municipalities are also required to ensure that they do not unduly limit or fetter their own power, especially where they are entrusted with a discretionary decision making power. The Supreme Court of Canada described this in Pacific National Investments Ltd. v. Victoria (City) as follows,

55 As the authorities make clear, a limitation on a municipality’s legislative power is a very serious matter. As Rogers, The Law of Canadian Municipal Corporations, supra, puts it at para. 199.4, “Unless expressly authorized to do so local authorities have no power to enter into an agreement the effect of which will be to restrict or divest the legislative powers of succeeding councils in respect of any matter affecting the public at large.” Rogers goes on to note that this does not mean that a council acting in its proprietary or business capacity cannot make contracts. But it does mean that a council cannot somehow give up its legislative powers…

56 Eloquent echoes of this principle have rung out through Canadian case law:

Our municipal councils are just as truly legislative bodies within the ambit of their jurisdiction as Parliament or the Legislature; and any contract which would interfere with the due exercise of the discretion and judgment of a member of such a council must equally be void as against public policy.

…

[M]unicipalities must be free to amend or alter their by-laws as circumstances dictate. They cannot bind themselves or their successors by contract with a third party to the status quo.

…

[A] municipality cannot bargain away its legislative powers in advance.

…

Municipal legislative powers are an integral part of governance that municipalities cannot give up. Municipal councils cannot fetter the discretion of successor councils to engage in the legislative process without undue influences.

[citations omitted]

The Council requesting The Cottagers’ Association to vote on the issue of changing the name does not make it an explicit condition of changing that name, as they still held a public meeting. The court concluded,

[64] While the applicants recognize that this Court does not have any authority to review the manner in which the Cottagers’ Association vote was held, they argue that not only did Council improperly fetter its discretion, but it relied on the outcome of a flawed and biased process. However, as reviewed above, in our view, the record is clear that Council did not simply defer to the Cottagers’ Association vote in deciding not to change the name of the Road…

[65] Ultimately, based on the record as a whole, including the reported comments made by Council members… the councillors retained and exercised their discretion to decide whether to direct that a process be undertaken to change the name of the Road. It is evident that Council members did not exclusively base their decision on the Cottagers’ Association’s vote, but that they were influenced by a number of factors.

Those factors included a recognition of the very emotional nature of the symbol, a recognition that those seeking to retain the name were not doing so for any hateful or disrespectful reasons, and concerns of governmental involvement against the wishes of the residents who live there. One councillor even suggested an informational plaque to provide better context and history for the symbol, and add some balance to the controversy.

The continued use of this name for the small country road near the picturesque pond will invariably be grounds for some consternation for residents who take objection to the name, or any association with the symbol. The situation would perhaps be different if the private road became a beacon for white supremacists, who choose this specific locale for their cottaging, or if the name had not been place for nearly a century.

At some point, the residents of Swastika Trail may consider that changing the name may increase their property value, given the greater ability to sell these cottages to a wider market, without the attached controversy. They might realize that the financial benefits of doing so outweigh the minor inconveniences and costs associated with the name change.

It’s at that point that those residents could elect different councillors to the Township, or indicate to the existing councillors that their interests have shifted. That indication may occur through The Cottager’s Association, through meetings and letters to the councillors, or any other means of communication. But the decision to change or retain the name is still that of the municipality’s.