As a condition of registration of a plan of subdivision in the Village of Wyoming, Atkinson, the owner and subdivider of the parcel of land, entered into an agreement with the Village for the installation of municipal services in the subdivision. This agreement, dated January 22, 1968, and registered September 26, 1975, provided in a general way for the owner's providing "all the requirements financial and otherwise, of the Corporation re surfacing of roads, installation of services and drainage". The agreement also prevented the sale of the lands in question until the agreement had been fully carried out, except with the consent of the Village, but the provision did not provide that consent would operate to release Atkinson from his obligation to the Village. Before any services were installed, Homex bought the great majority of the lots on the subdivision with the Village's consent. There was some question as to whether or not Homex had undertaken to assume the obligations of the original subdivider. Nevertheless, when protracted negotiations between the Village and Homex concerning the installation of services proved fruitless, the Village, in April 1976, pursuant to s. 29(3) (now s. 50(3)) of the Planning Act and without notice to Homex, enacted by-law 7 deeming the lots purchased by Homex not to be a registered plan of subdivision. Homex, in September 1976, made application for judicial review for an order quashing by-law 7 and, while the application was pending, checkerboarded its lots.
In November 1975, Homex and the Village negotiated the installation of services along the only street requiring them. By-law 6, enacted in December 1975, provided that it was the policy of the Village that it would neither assume responsibility for a water pipeline constructed by Homex nor permit its connection to the municipal water supply system. Homex coupled an application in judicial review to quash by-law 6 with the application for an order to quash by-law 7.
- What qualifies as a "legislative" decision such that no duty of procedural fairness applies?
Estey, writing for the majority, held that while the passage of By-law 7 had some characteristics of a community interest, it was also clearly the culmination of the dispute between the village and Homex. As a result he found that the decision was quasi-judicial such as to attract the principle of notice and the doctrine of audi alteram partem. Despite this, however, he held that the conduct of Homex to rid itself of the obligations under the agreement with Atkinson were such that it should be denied a discretionary remedy. There was also no basis to challenge By-law 6 as it simply stated the facts of the agreement with Atkinson.
Dickson, in the dissent, is quoted:
The courts long ago developed the general proposition that wherever a statute authorizes the interference with property or other rights and is silent as to whether or not the agency in question is required to give notice prior to the intervention in such rights, the courts will "supply the omission of the legislature" and require the agency in question to afford the subject an opportunity of being heard before it proceeds.He held that an act could not be labelled "legislative" merely for the purpose of dispensing with fairness. It was not particularly important that the function of the municipality was classified as "legislative" or "quasi-judicial", rather, it was necessary to look at the nature of the function and to the facts of each case. The by-law in question was not of wide and general application, but was rather aimed at deliberately limiting the rights of Homex, entitling it to some procedural safeguards - at a minimum, notice of the proposed by-law and the opportunity to be heard.
- In general, the courts have not imposed procedural requirements on the subordinate law-making function.
- The facts of each case are key to determining the level of procedural fairness required.