Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.



Areas of Law: Municipal law; Aboriginal law; Constitutional and Charter law

~Bylaws containing specific reference to identifiable individuals in their preamble, and affecting Aboriginal people, will not be held to be invalid if they are of general application and do not touch on the “core of Indianness”~

Background: The Haudenosaunee people claimed unsurrendered rights to land in the City of Brantford, and created the Haudenosaunee Development Institute to regulate the development of private property on that land. The HDI demanded that developers obtain its approval and pay fees to it before proceeding with their projects. When this did not work, the HDI and its supporters began to blockade development sites, obstruct public rights of way and force work stoppages. Brantford responded by passing two bylaws prohibiting unauthorized interference with private property development and construction, and prohibiting the imposition of unauthorized fees or other conditions for development. Brantford Council discussed the bylaws with the City’s solicitor in camera, and then passed them unanimously and without discussion in a brief public meeting. Brantford proceeded to obtain an interlocutory injunction restraining the HDI and its supporters from engaging in the activities prohibited in the bylaws. At the same hearing the HDI, Aaron Detlor, and Hazel Hill (the Appellants) applied to quash the bylaws. The trial judge dismissed their application, finding that the bylaws were in compliance with the open meeting requirement in s. 239 of the Municipal Act, 2001, did not violate s. 91(24) of the Constitution Act or s. 2(b) or s. 15 of the Charter of Rights and Freedoms, and were not passed in bad faith.

Appellate Decision: The appeal was dismissed. The Appellants argued that the trial judge had erred in all of his findings regarding the validity of the bylaws. As a preliminary point, the Court of Appeal found that the question of whether the Haudenosaunee have any claim to title to land in Brantford was not an issue in the appeal. The Court also noted that the HDI had no lawful authority to place demands on developers. The Respondent relied on s. 239(2)(f) of the Municipal Act, which permits Council meetings to be closed to the public if the subject matter of the meeting is advice to which solicitor-client privilege attaches. The Act also provides a mechanism for an investigation into whether a local government has complied with s. 239, but the Appellants did not seek such an investigation. The Court of Appeal agreed with the trial judge, finding that Council was faced with a volatile situation in which litigation was almost inevitable. It needed legal advice regarding its next steps, and the claim of solicitor-client privilege was anything but specious. The Appellants argued that the bylaws were passed in bad faith because they targeted the HDI specifically, and the Appellants had not received notice of the bylaws. They further argued that the public was not given meaningful notice of the nature of the bylaws. The Court of Appeal found adequate notice was given, and noted that the Brantford procedural bylaw did not even require such notice. The preambles to the bylaws contained several references to the HDI and its supporters, but all the bylaws’ operative provisions except one were applicable to any member of the public. The remaining provision was superfluous, and did not have the effect of targeting the Appellants. The Court of Appeal disagreed with the trial judge on the question of the Charter argument only to the extent that some of the words in the operative provisions were overbroad. Counsel for the Respondent conceded this. The Court of Appeal found that the impugned bylaws were not ultra vires the Respondent by reason of intruding on s. 91(24) of the Constitution; the bylaws did not single out the Haudenosaunee people nor impair their status as Indians, and a law of general application applies to Aboriginal people provided that it does not touch on the “core of Indianness”. The bylaws were therefore validly passed under provincial legislation.

2. COMMENT BY COUNSEL FOR THE RESPONDENT, Neal Smitheman, Tom Barlow, And Tracy Pratt

There are several noteworthy aspects to the Court of Appeal’s recent decision in Aaron Detlor et al. v. Brantford (City).

The Court of Appeal affirms the powers of a municipality under the Municipal Act, 2001 (the “Act”) to enact by-laws: to prevent blockades and work stoppages affecting development sites; to stop an organization other than the municipality, in this case the Haudenosaunee Development Institute (“HDI”), from requiring fees, charges or other conditions to be met before permitting municipally-approved development in which it has an interest to proceed peacefully. In doing so, the Court reviewed and reaffirmed municipal authority to prohibit public nuisances and other statutory powers to enact by-laws of general application.

The Court also recognized the entitlement of a municipal council to hold a closed meeting to obtain solicitor-client advice and to discuss “land claim and related issues”, giving public notice strictly in compliance with, and otherwise following, the requirements of its procedural by-law and the Act, without thereafter having the by-law struck for non-compliance with the open meeting requirements of the Act and for lack of notice and bad faith. The Court found that, in light of what was taking place in Brantford, no reasonable citizen, and especially no member of HDI or its supporters, could have been in any doubt about what was to be discussed at the council meeting, and the Haudenosaunee and HDI would or should have been well aware from the notice given that the two by-laws may affect their interests. As the Court stated, “context matters”.

The decision addressed constitutional law matters: sections 2(b) and 15 of the Charter and the division of powers. The appellants framed many of their arguments around asserted discrimination against the Haudenosaunee. The by-laws candidly acknowledged in their preambles that the actions of HDI and its supporters were the “catalyst for the by-laws”. The Court held, however, that the operative provisions of the by-laws did not single them out for special or differential treatment. Thus, the Court (a) declined to strike out the by-laws for “targeting” or bad faith, as urged by the appellants, (b) found that the by-laws don’t discriminate against the Haudenosaunee in violation of section 15 of the‎ Charter, and (c) held that the by-laws do not fall under the exclusive federal legislative power relating to “Indians, and Lands reserved for the Indians.” With respect to the last point, the Court readily dismissed the appellants’ argument that the by-law banning unauthorized demands for fees or applications for development affected the “core of Indianness”, a sphere of federal power that has been construed narrowly.[1]

The Court’s section 2(b) analysis focused on a discussion of the Supreme Court of Canada’s decision in Retail, Wholesale and Department Store Union Local 558 v. Pepsi Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156. In upholding the impugned by-laws,[2] the Court adopted the finding in‎ Pepsi Cola that a ban on criminal, tortious, or coercive conduct will be justified under section 1 of the Charter. In contrast with Frontenac,[3] the Court of Appeal exhibited less tolerance for illegal activities thinly disguised as Aboriginal or other “protest”. By holding that the City had every right to pass legislation to control lawlessness and prevent nuisance on its streets and on private property, the Court strongly endorsed the rule of law in Ontario.


[1] In the lower court, the appellants advanced an argument that the by-laws are invalid because the City failed to adequately consult the Haudenosaunee prior to their passing. This argument did not succeed. Interestingly, the appellants did not pursue this issue as a ground of appeal.

[2] Subject to minor revisions.

[3] Frontenac Ventures Corporation v. Ardoch Algonquin First Nation, 2008 ONCA 534. The Court of Appeal made obiter comments respecting injunctive relief in certain circumstances.”

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