GUELPH – Superior Court here has ruled against the city in one bid to stop Wellington-Dufferin-Guelph Public Health (WDGPH) from taking on debt to build two buildings.
One would be in Orangeville and the other is slated for Guelph.
The city was asking to halt any move by WDGPH to proceed until the courts hear a request for an extension of an injunction the city received in March. Guelph wants the courts to hear its case in a full trial.
The city is arguing that Public Health has no authority to add debt to the city’s books without its council’s permission.
The latest ruling was made Aug. 10 by Justice Kenneth Langdon of Guelph’s Superior Court of Justice.
The health unit has been working for several years to find replacement buildings for its Guelph and Orangeville offices. The board decided it is cheaper to own its own buildings rather than rent them.
In 2009, Guelph council agreed with that approach, but the city changed its mind earlier this year when it determined it would be on the hook for about $10-million of the costs for those two buildings.
It attempted to leave the group and form its own Public Health unit, but the province rejected that bid.
The city then asked the court to rely on a 1967 agreement that suggested capital costs should be approved and borne by the municipality in which the project is to be located. It also argued the city should have the final say.
Medical Officer of Health Dr. Nicola Mercer said in an interview on Monday the Orangeville and Guelph projects, if built at the same time, would save about 8% of the total cost of two separately built buildings. She cited purchasing of materials for both, using the same architects and also using the same contractor.
Mercer said having current leases run out before the buildings are completed would mean either a temporary move to another building, or renegotiating an extension on the lease, with the landlord having the upper hand in those negotiations.
Mercer said the board’s plan to own its buildings is the best use of taxpayers’ dollars. She noted one building the board owned in Guelph lasted about 40 years.
She said with interest rates low right now, it makes sense to own rather than rent.
Currently, the Ministry of Health pays about 75% of the Health Units costs, with municipalities, which are expected to cover Public Health costs, taking on the balance. A 1997 agreement between the lower tier municipalities divides that cost according to population, with Guelph paying 46%, Wellington County 33%, and Dufferin 21%.
The Health Unit acquired land in Orangeville on Broadway Avenue, and has obtained a leasehold agreement for land at the University of Guelph for a building in the city. Mercer said there are a number of nearby university departments that will be able to work with the Health Unit. That lease agreement is for 49 years, with an extension of 20 years as part of the option.
In his decision, Langdon concluded the composition of the board is set by the Health Protection and Promotion Act, and its regulations, and “the city cannot change” an Ontario regulation by withdrawing from it. He also ruled that the 1997 agreement on cost sharing between the three municipalities “is now simple a funding agreement amongst the constituent members of the health unit.”
Mercer cited a report from 2007 that stated if anything, health units should be larger, rather than smaller.
Langdon added that “even if the city withdraws from that agreement, its obligation to fund the board of health continues to be mandated by the Health Protection and Promotion Act.”
That would include funding the board’s expenses.
Langdon also noted that the province should have been a party to the proceeding. The province had backed away, from involvement in the dispute.
Langdon also appeared to shoot down the city’s argument that the board of health had no right to add debt to the city without its consent.
He stated, “No absurd result flows from the fact that the board of health can require municipalities to fund its operation though the board is unelected. Its members are also representatives of the constituent municipalities.”
In September, the parties are back in court to consider a request by Guelph to increase a temporary injunction to stop the building at the university lands. The city wants a trial before building in Guelph can proceed.
The current Guelph Public Health building lease runs out in 2012.
Mercer said if the court rules in the board’s favour, it will “clarify for all involved what we are able to do or not do.”
That means it could proceed with construction and Guelph would have to pay its share.
A request to talk to Guelph Mayor Karen Farbridge resulted in a call from the city’s legal department. Solicitor Scott Worsfold said when the city gave approval in principle for Public Health’s plan in 2009, it thought it was going to receive 75% of the funding from the province, and its share would be 46% of the remainder.
But, Worsfold said, the city learned nearly a year later that it would have to pay 46% of the total cost of the project. Plus, he noted, the Orangeville work is another $5-million.
Worsfold said the city received an injunction in March against the board proceeding, and will argue in September that it should be extended.
He said it is the city’s view that it is wrong to force Guelph pay to pay 46% of the full costs that are being decided by an unelected body, Public Health.
It will come down to the best legal argument deciding the issue.
