On Monday, May 13, 2019, Justice Ramsay once again ruled in favour of A Better Niagara in its most recent application with respect to the operations of the Niagara Peninsula Conservation Authority.

Today’s application was for a definitive ruling on the number of board members each of the member municipalities of the NPCA can appoint to the NPCA board.  The Conservation Authorities Act, RSO 1990, provides the formula for determining the number of representatives from each municipality to the NPCA board based on the population of the municipalities.  Municipalities are not obligated to appoint the full number of members to which they are entitled, and can make other arrangements amongst themselves.

This is likely what has occurred in the past, with the Regional Municipality of Niagara appointing 12 members, the City of Hamilton 2, and Haldimand County 1. Recently some members from the NPCA board and others outside of the Board insisted that Niagara was only entitled to appoint 5 members.  At the same time, Hamilton and Haldimand determined that they could double their representation on the NPCA board to 4 and 2 members each, without consultation.  Subsequently, the new members appointed by the Region of Niagara in December were not permitted to sit as board members by the outgoing NPCA board.  When ABN brought an application in December, 2018, regarding this issue, Justice Ramsay ruled that the members appointed by the Region of Niagara were the duly appointed NPCA board members.  ABN returned to court again on January 2, 2019 and obtained an order from Justice Ramsay requiring the NPCA to schedule a board meeting to allow the new board to be officially installed.  Justice Ramsay adjourned the matter  ‘sine die’, without any set return date, as it was believed that the newly installed board of the NPCA was likely to come to a solution on the issue of the appropriate number of board members from each municipality.

However, the questions around the appropriate number of board members from each municipality have continued to persist.  ABN brought this application to seek a determination of the entitlements of Niagara, Hamilton, and Haldimand to appoint members to the NPCA board.

Counsel for Hamilton and Niagara requested an adjournment of the application.  Counsel for the City of Hamilton advised that Hamilton, Haldimand, and Niagara had committed to negotiating what the board composition would be.  Counsel for the Region of Niagara advised that based on the timing of the application, there had not been the opportunity for a meeting of the Regional Council of Niagara to obtain instructions on the matter.  Counsel for Haldimand was not present in court, but did communicate through counsel for ABN to advise that they agree with the assertion that the Region of Niagara is entitled to 27 seats on the NPCA board.

Justice Ramsay refused the request for an adjournment.  Though he acknowledged that the commitment to negotiations by the municipalities was positive, Justice Ramsay stated that in order for them to negotiate effectively they need to know what their legal entitlement to representation on the board is.  Owing to what he called “considerable and unnecessary doubt,” Justice Ramsay felt compelled to provide a ruling on the question of the relevant provisions of the Act.

Once again, Justice Ramsay ruled in favour of the relief requested by ABN.  Stating that the provisions of sections 2 and 4 (4) of the Act were “pretty obvious,” Justice Ramsay declared that the Regional Municipality of Niagara, as an upper tier municipality, was entitled to appoint as many representatives to the board to which its constituent municipalities would have otherwise been entitled.  This amounts to 27 potential board members from Niagara.  Hamilton and Haldimand, single-tier municipalities, are entitled to 6 and 2 board members respectively.

Justice Ramsay further confirmed that legal standing on the question of board composition was not held by the NPCA but rather vested in the Regional Municipality of Niagara.

The municipal law team at Daniel & Partners has been following this case over the course of the past few months.  We will continue to watch the results of this application as they develop.  At Daniel & Partners, we act on behalf of municipalities, landowners, developers, financial institutions, and public interest groups in mediations and arbitrations before a variety of tribunals as well as in the Courts.  Contact our office to arrange an initial consultation as soon as possible to get our team started on your case.

 

Post written by Karen Shedden, associate lawyer practicing municipal law and wills and estates.

For more on this topic, please see Karen’s previous two posts on the applications brought by A Better Niagara:

Part 1: Who’s in Charge of the NPCA?

Part 2: Who’s in Charge of the NPCA?

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