Appeal of ruling is sorely needed

If perceptions of the implications of Superior Court Justice Francine Van Melle's interpretation of Ontario's Municipal Conflict of Interest Act are correct, it is in the interests of all municipalities in Ontario for Orangeville to appeal to a higher court.

If the judge's endorsement is allowed to stand, it would be binding on lower courts and tribunals throughout the province. The perception of the ruling is that it could affect the votes of all lowertier representatives at their respective upper tier in all matters affecting their local municipality.

The counter-argument is that, in cases such as East Luther Grand Valley's pecuniary interest in Dufferin EcoEnergy Park (DEEP), the law created by the decision would not apply, because ELGV would not be contractually obligated to support a third party in a Dufferin County issue.

Justice Van Melle was careful to note that her decision was based, in part, on Orangeville's "gain" of $2 million if the county-owned rail corridor were sold to the Highland Railway Group.

Representing the Town, Orangeville lawyer Robert Brown is now drawing a distinction between Orangeville as a corporation and its representatives as members of the political body and not of the corporation. He says the judge erred in law by failing to do so, and by not considering all applicable case law, among other things.

If the decision is, indeed, flawed, it would be foolhardy for Mayor Rob Adams and Deputy Warren Maycock and the Town to fold their tents and walk away from the issue. A flawed decision ought not to go unchallenged.

In the example of ELGV and DEEP, the Township stands to gain industrial taxes when the waste processing facilities have been completed. It's not much of a stretch to find this lower-tier situation similar to the one at issue. The mind boggles at the ocean of implications.

Apart from the other arguments, it seems no one has pointed out that municipal councils in Ontario have been free of party involvement. With no "party whips," there is a free vote on all issues at both the local and the upper tier.

Local representatives are not constrained to vote in accordance with their local council's wishes. They cease to be mayors and deputies when they arrive at upper-tier council, and become county or regional councillors. As such, they are expected to vote in the broader interests of the upper tier.

And it is wrong to say that "Orangeville" exercises 13 of 30 votes at the county — or Mono four, or Shelburne three. Each town has just two county councillors, with a specified number of votes apiece — based on population and the Dufferin County Act.

There is evidence that the two representatives of each town sometimes vote against each other, proving that they are not always guided by the opinions of their local councils.

The irony of the Van Melle decision is that the issue arose because opposition to the possible sale of the county-owned rail corridor was based to a considerable extent on a belief that the rail line would be restored for the sole purpose of transporting aggregates from the huge quarry operations planned by The Highland Companies.

Highland's offer for the existing railway expressed otherwise. According to it, Orangeville was also required to help Highland find new shippers — which would reasonably imply that the Town was required to work for industrial growth for the county.

Highland would also be contractually obligated to continue the Credit Valley Explorer tour train, to retain the current shippers, and to expand the industrial shipper base.

To block the sale of the corridor would not be to kill the quarry, but to reduce the potential for industrial growth, particularly in Amaranth and Shelburne.

NDACT et al will have better battlegrounds to choose from when Highland completes its application to the Ministry of Natural Resources (MNR).

("Completion" refers to the filing of all required documents. This is routinely followed by a public comment period and then time for the proponent to respond.)

In Flamborough, where a quarry similar to the Melancthon one is proposed, St. Marys Cement is in the process of responding to objections to its application raised during the 45-day public response period that ended May 25.

In response to queries from this newspaper, Diane Schwier at the MNR's Guelph district office said last Friday, "the application is alive and well. St. Marys is responding to objection letters," she said. It needs to satisfy the objections before the license can be issued.

Even so, there is likely to be a referral to the OMB.

Opponents of the Melancthon quarry would have time left in which to prepare their most effective battleground. I don't believe they can win a war by singling out one landowner, albeit a corporate one, on issues such as a railway, tree-cutting and demolition permits.

As in Flamborough, water appears to be the decisive issue.