VII- IMPACT OF CERTAIN ADMINISTRATIVE DECISIONS ON THE VITALITY OF OFFICIAL LANGUAGE MINORITY COMMUNITIES
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The case involving the Montfort Hospital,133 analysed in the previous report,134 confirmed the importance of institutions for the vitality of official language minority communities in Canada. In its decision, the Court had to interpret and apply the unwritten principles on minority protection as set out in the Reference Re Secession of Quebec.135 One decision considered in this report raises the application of those principles and examines the possible impact of certain administrative decisions that allegedly did not take into account the principles concerning the vitality of official language minority communities. The decision reached no conclusion on this point, as the matter could be resolved on another basis.
7.1 The importance of institutions to ensure the vitality of minority communities
Tremblay v. Lakeshore (Town)
In Tremblay,136 the Ontario Superior Court had to consider a decision made by a town council. The latter refused to award a historical designation to a church under the Ontario Heritage Act, requiring that such a request be made by the owner of the property. This case raised the question of taking into account the unwritten constitutional principles of the protection of minorities in the context of this decision. The Court did not have to take this question any further, however, as it held that the case could be decided on the traditional rules of administrative law.
The Roman Catholic diocese of London, owner of the St-Joachim church in the town of Lakeshore, wanted the church demolished because it had fallen into disrepair. The parishioners, who belonged to an Ontario Francophone community, wanted to preserve the building, which they regarded as an important symbol of their identity and vitality and a rallying point for their community. For these reasons, they formed the organization "SOS Églises" and asked the town of Lakeshore to designate the building under the Ontario Heritage Act.
After holding several meetings, the town council finally denied the designation. The town concluded that it could not grant the request without the consent of its owner, the diocese. The town council also adopted a resolution stating that "a request for heritage designation of a property be made . . . by the owner of the property." Soon afterwards, the diocese sold the church: its demolition was part of the conditions of sale. A demolition permit was granted, but it was stayed due to the proceedings filed by the applicants.
In their pleadings, the applicants argued that the town council was not empowered to impose such a condition on an application for historical designation. They also maintained that the town’s decision was within its discretion, but it had to be made consistent with the Charter and the Constitution. When it denied the designation sought, the town did not take the unwritten principles of the Constitution regarding minority protection, set out inter alia in Montfort, into account.137
The Ontario Superior Court first considered the Ontario Heritage Act. It noted that the latter gave municipalities the power to designate certain properties located in the municipality as being of historical or architectural interest. In terms of procedure, this designation was a simple process and the decision to designate property was clearly discretionary. The Court observed that this discretion had limits, however, and had to be exercised "with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter."138 It added that these principles included those articulated in Montfort, namely respect for and protection of the Ontario Francophone minority and respect for linguistic duality as a fundamental principle of Canadian society.
After noting the argument made by the applicants regarding the unwritten principles of the Constitution on minority protection, the Court indicated that it would not rule on this point because "this case is to be determined on traditional administrative law principles rather than the constitutional analysis."139 In the Court’s opinion, the request for consent by the owner to the historical designation of the church was not consistent either with general interpretation or the purpose of the Ontario Heritage Act. The Court indicated that the Act provided only for a requirement that the owner be notified, possible objections be heard, and a hearing be held. It further provided that an owner may refuse consent, as the purpose of the Act was to establish a fair balance between the interest of the public, the community, and the owner.
Accordingly, the Court allowed the application for judicial review on the ground that the condition imposed by the town of an application by the owner for designation of historical property was unreasonable. The Court referred the matter back to the town council for reconsideration in accordance with the applicable principles.
