Angela Broccolini

The Niagara Escarpment Commission appealed an Ontario Municipal Board decision allowing a subdivision application to proceed to a hearing.

The central issue was whether the Board had jurisdiction under the Planning Act despite amendments to the Niagara Escarpment Planning and Development Act requiring a development permit before any development decision.

The Divisional Court allowed the appeal, finding the Board erred in law by failing to address the mandatory language of the amended legislation.

The Court further held that the respondent did not have a vested right to a hearing before the Board.

The Niagara Escarpment Commission sought leave to appeal a decision of the Ontario Municipal Board (OMB) to the Divisional Court.

The OMB had dismissed a joint motion to dismiss a draft plan of subdivision without a hearing, finding it had jurisdiction despite amendments to the Niagara Escarpment Planning and Development Act.

The Divisional Court granted leave to appeal, finding reason to doubt the correctness of the OMB's decision because it failed to apply principles of statutory interpretation regarding vested rights and jurisdiction.

The court also found the issue of the OMB's jurisdiction in light of collateral statutory amendments to be of sufficient public importance.