Paletta International Corp. v. Burlington (City) [2003 49301 (ON SC), 63 O.R. (3d) 670]
69 O.R. (3d) 282
[2004] O.J. No. 12
Docket No. C39809
Court of Appeal for Ontario
Labrosse, Sharpe and Armstrong JJ.A.
January 7, 2004.
Planning -- Official plan -- Zoning -- Subdivision control -- Application for amendment to official plan, amendment to zoning by-law and draft plan of subdivision -- Applicant paying fees and providing prescribed information but not providing other information required by municipality -- Time period after which appeal may be brought to the Ontario Municipal Board beginning to run -- Planning Act, R.S.O. 1990, c. P.13, ss. 22(6), 34(10.3), 51(19).
NOTE: The catchlines above refer to the judgment of Lofchik J. of the Superior Court of Justice. An appeal of this judgment to the Court of Appeal for Ontario (Labrosse, Sharpe and Armstrong JJ.A.) was dismissed on January 7, 2004. The judgment of the court, written by Sharpe J.A., was as follows:
Scott A. Snider and Derek Collins, for respondents. John C.L. Ritchie and Jyoti V. Zuidema, for appellant.
Overview
1SHARPE J.A.: -- This appeal involves the procedural rights that arise under the Planning Act, R.S.O. 1990, c. P.13 (the "Act") when a party applies for an official plan amendment, zoning [page283] change or approval of a draft plan of subdivision but refuses to provide information required by the municipal council to consider the application. The appellant municipality takes the position that it is entitled to refuse to deal with the application until the required information is supplied. In contrast, the respondent says that the council's only remedy is to refuse the application, and that if the council fails to deal with the application within the period prescribed by the Act, the applicant has an immediate right of appeal to the Ontario Municipal Board (the "O.M.B.").
2The Act contains detailed provisions setting out the procedure to be followed for applications for official plan amendments (s. 22), for changes to zoning by-laws (s. 34) and for approval of plans of subdivision (s. 51). As the case at bar was considered by the application judge and argued before us essentially on the basis of s. 22, I will focus on that section in these reasons. My reasons, however, are equally applicable to s. 34 and s. 51 since all three sections are quite similar in wording and contain parallel provisions.
3The relevant part of s. 22 provides:
22(1) Request to council -- If a person or public body requests a council to amend its official plan, the council shall,
(a) forward a copy of the request and the information and material required under subsection (4) to the appropriate approval authority, whether or not the requested amendment is exempt from approval; and
(b) within 65 days after the request is received, hold a public meeting under subsection 17(15) or comply with the alternative measures set out in the official plan.
(3) No public meeting -- Despite subsections (1) and (2), the requirement to hold a public meeting under subsection 17(15) is waived if the council or the planning board refuses to adopt an amendment to its official plan requested by a person or public body.
(4) Prescribed information -- A person or public body that requests an amendment to the official plan of a municipality or planning board shall provide the prescribed information and material to the council or planning board.
(5) Other information -- A council or a planning board may require that a person or public body that requests an amendment to its official plan provide such other information or material that the council or planning board considers it may need.
(6) Refusal and timing -- Until a council or planning board has received the prescribed information and material required under subsection (4) and any fee under section 69, [page284]
(a) the council or planning board may refuse to accept or further consider the request for an amendment to its official plan; and
(b) the time periods referred to in clauses (7)(a) to (d) do not begin.
(7) Appeal to the Municipal Board -- A person or public body that requests an amendment to the official plan of a municipality or planning board may appeal to the Municipal Board in respect of all or any part of the requested amendment by filing a notice of appeal with the clerk of the municipality or the secretary-treasurer of the planning board if,
(a) the council or the planning board fails to give notice of a public meeting under subsection 17(15), if required, within 45 days after the request is received;
(b) a planning board recommends a requested amendment for adoption to a council or two or more councils and the council or the majority of the councils that are within the planning area of a planning board fails to give notice of a public meeting under subsection 17(15), if required, within 45 days after the request is received;
(c) the council or the planning board fails to adopt the requested amendment within 90 days after the day the request is received;
(d) a planning board recommends a requested amendment for adoption and the council or the majority of the councils fails to adopt the requested amendment within 90 days after the day the request is received;
(e) a council, a majority of the councils or a planning board refuses to adopt the requested amendment; or
(f) a planning board refuses to approve a requested amendment under subsection 18(1).
(9) Record and forwarding material -- The clerk of a municipality or the secretary-treasurer of a planning board who receives a notice of appeal under subsection (7) shall ensure that,
(a) a record is compiled which includes the prescribed information and material;
(b) the notice of appeal, the record and the fee are forwarded to the Municipal Board within 15 days after the notice is received;
(c) the notice of appeal and the record are forwarded to the appropriate approval authority, within 15 days after the notice is received whether or not the plan is exempt from approval, unless the approval authority has notified the municipality or the planning board that it does not wish to receive copies of the notices of appeal and the records; and
(d) such other information or material as the Municipal Board may require in respect of the appeal is forwarded to the Board.
Background
4It is common ground that the respondents provided the appellant with all the prescribed information and material in [page285] compliance with s. 22(4), and that the appellant required further information pursuant to s. 22(5). It is also common ground that the appellant's demand for further information was reasonable and that the information required was relevant to the planning decision the council was being asked to make. The respondents refused to provide the required information. They took the position that they were entitled to proceed directly before the O.M.B. by way of appeal as, under s. 22(6), the 90-day period for decision by the council (as prescribed by s. 22(7)) started to run from the date the council had received the application fee and the information prescribed by s. 22(4).
5The respondents filed a notice of appeal with the clerk of the municipality pursuant to s. 22(7), but the clerk refused to forward a record to the O.M.B. on the ground that the respondents had not provided the council with the information required under s. 22(5) and, until such information was provided, the 90-day period for a decision by the council did not start to run.
Decision Below
6The respondents then commenced this application to compel the clerk to forward the record to the O.M.B. so that they could proceed with their appeal. The application judge ruled that s. 22 draws a clear distinction between prescribed information under s. 22(4) and required information under s. 22(5). As s. 22(6) made no reference to s. 22(5) in relation to the commencement of the 90-day period for a decision by council, he held, at para. 13, that the respondents were entitled to appeal to the O.M.B. despite their failure to provide the information required under s. 22(5):
By limiting the refusal of the municipality to deal with the application to failure to comply with subsection (4) and making no mention of subsection (5), the legislature has specifically denied the municipality the right to refuse to deal with the application if the material requested pursuant to subsection (5) is not provided (expressio unius est exclusio alterius). If the legislature had intended that a council may refuse to deal with an application if the information under subsection (5) is not provided by an applicant, it could have very easily added after the words "and any fee under s. 69", the words"and the information and material required under subsection (5)".
Analysis
7The appellant submits that the application judge erred in his interpretation of the Act, and that if the respondents are allowed to proceed by way of appeal to the O.M.B. without providing the required information, important purposes of the Act will be frustrated. In particular, the appellant argues that the interpretation is inconsistent with the purposes enunciated in s. 1.1(d)"to provide for planning processes that are fair by making them open, accessible, timely and efficient" and s. 1.1(f)"to recognize the decision-making authority and accountability of Municipal Councils in planning". The appellant contends that [page286] the application judge erred in affording s. 22 an unduly literal interpretation that allows applicants to by-pass municipal councils and evade the open, accessible and fully informed decision-making process at the local level contemplated by the Act. The appellant places particular emphasis upon the provision requiring a public meeting (s. 22(1)), and on the importance of affording interested citizens an opportunity to participate in important community decisions. The appellant submits that this court should give the Act an interpretation that will respect and reinforce these important statutory purposes, and asks us to read s. 22(6) as if it referred not only to the information prescribed by s. 22(4), but also to the information required under s. 22(5), thereby preserving the important role of municipal councils in the planning process. Reliance is placed upon Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193, at para. 27, where Iacobucci J. stated,
It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. . . . [A]n interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment.
8While I agree that the application judge's interpretation significantly diminishes the role of the council in local planning decisions, I cannot agree that the application judge erred in his interpretation of the Act. In my view, the Act plainly draws a clear and sharp distinction between prescribed information under s. 22(4) and required information under s. 22(5) and lays down, in specific terms, the remedies available in the event of non-compliance. An applicant must provide the information prescribed under s. 22(4), and if the applicant fails to comply, the council can refuse to deal with the application. Once the applicant has provided the prescribed information, the council can require further information under s. 22(5). Should the applicant fail to comply with that demand, the council is entitled to refuse the application but, since ss. 22(6) and (7) establish a 90-day period for decision from the date the fee is paid and the prescribed information is provided, the council is not entitled to refuse to deal with the application until it receives the required information.
9I am aware that this interpretation effectively short- circuits the process of public meetings at the local level by permitting applicants to appeal directly to the O.M.B. without first providing the council with required information. However, I cannot accept that we should regard the omission of any reference in s. 22(6) to the information required under s. 22(5) as a slip of the legislative pen, [page287] capable of leading to an absurd result that can, or should be judicially repaired. The fact that the same pattern is followed in the parallel provisions in s. 34 in relation to zoning changes and in s. 51 with respect to approval of plans of subdivisions indicates that the legislature was cognizant of the consequences of adopting such wording at the time of enactment. While the result may be regrettable from the perspective of a municipal council eager to ensure full public participation in planning decisions at the local level, I agree with the application judge that that appears to be what the legislature intended. Simply put, the legislature has adopted a balance of rights that curtails the role of municipal councils to some extent, and allows applicants to proceed more expeditiously by way of appeal to the O.M.B. In the end, this seems to me to be a legislative choice that falls well short of the kind of absurd, illogical or incoherent result that is to be avoided through interpretation, as stipulated in Rizzo & Rizzo Shoes Ltd., supra.
10I would add, however, that an applicant's refusal to comply with a council's demand for the information required to make a proper planning decision need not go unnoticed before the O.M.B. The legislature clearly intended that the council could request information in addition to the prescribed information and the respondents have refused to provide the additional information requested by the council. The respondents are entitled to appeal to the O.M.B., but it will be for the O.M.B. to decide what effect, if any, it ought to give to the respondents' refusal to comply with the council's request. In view of the broad statutory powers conferred upon the O.M.B., it would certainly be within the O.M.B.'s discretion to return the application to the council with its direction.
Disposition
11For these reasons, I would dismiss the appeal with costs to the respondents fixed at $10,000 inclusive of GST and disbursements.
