DATE: 20060630
DOCKET: C44312
COURT OF APPEAL FOR ONTARIO
LASKIN, MACPHERSON and LANG JJ.A.
IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, c. J.1
AND IN THE MATTER OF the Ontario Planning and Development Act,
1994, S.O. 1994, c. 23, Schedule A
B E T W E E N :
DUFFIN CAPITAL CORPORATION
Alan J. Lenczner, Q.C. and
Eli S. Lederman
for the appellant
Appellant
- and -
THE MINISTER OF MUNICIPAL AFFAIRS AND HOUSING
Jack Coop
for the respondent
Respondent
- and -
THE CORPORATION OF THE CITY OF PICKERING
John H. Reble
for the intervenor
Intervenor
Heard: June 26, 2006
On appeal from the judgment of the Divisional Court (Justices James D. Carnwath, Tamarin Dunnet and Anne M. Molloy) dated May 19, 2005.
MACPHERSON J.A.:
[1] The appellant Duffin Capital Corporation (“Duffin”) is a developer, which owns about 1500 acres of land in the City of Pickering in an area known as Cherrywood.
[2] In April 2003, the Minister of Municipal Affairs and Housing (“the Minister”) established a single development planning area in the City of Pickering under the Ontario Planning and Development Act, 1994, S.O. 1994, c.23 (“the OPDA”). As required by s. 2(3) of the OPDA, the Minister commissioned an investigation and survey to be undertaken of the environmental, physical, social and economic conditions affecting the development planning area. The Minister engaged Planning Alliance, a consulting firm, to undertake the study and to engage in public consultation as required by s. 4(1) of the OPDA. The Minister mandated Planning Alliance to “cause a proposed development plan for the planning area to be prepared”, as required by s. 2(3) of the Act.
[3] Duffin brought an application for judicial review of the statutory power of decision exercised by the Minister under the OPDA on the basis that the Minister had breached ss. 2(3) and 4(1) of the Act. In a decision dated May 24, 2005, the Divisional Court quashed Duffin’s application as premature.
[4] Duffin appealed with leave. On May 4, 2006, at the commencement of the hearing, counsel advised the Court that on the previous day the Minister had recommended that the Lieutenant Governor in Council approve the Central Pickering Development Plan and that an Order in Council was issued the same day. As a result, the prematurity issue had essentially dissolved. However, the Court decided that it would stay seized of the appeal and hear it on the merits. The hearing was adjourned to June 26, 2006 to enable the parties to supplement the record and to prepare and file supplementary facta.
[5] Duffin advances two arguments on the appeal: (1) the Minister’s initial reference to Planning Alliance breached s. 2(3) of the OPDA; and (2) the process established by the Minister led to the breach of the “public participation” component of the process mandated by s. 4(1) of the Act.
The Section 2(3) Issue
[6] The Minister made some initial decisions about the development planning area that would be the subject of the investigation and survey. The most important decision was the instruction to Planning Alliance:
The new community of North Pickering will consist of an urbanized portion with a significant amount of preserved natural heritage lands generally located in the area known as Seaton, and an agricultural area generally on the lands known as the Duffins‑Rouge Agricultural Reserve.
The Province is committed to preserving the Duffins‑Rouge Agricultural Reserve and this should be considered a “given” in the exercise.
[7] The Cherrywood lands are part of the Duffins‑Rouge Agricultural Reserve. The effect of the Minister’s instruction was that the possible development of the appellant’s Cherrywood lands was effectively taken off the table. The Cherrywood lands would continue to be restricted to agricultural use.
[8] The Minister’s instruction must be assessed in light of subsections 2(1) and (3) of the OPDA, which provide:
2(1) The Minister may by order establish as a development planning area any area of land defined in the order and may amend the order to alter the boundaries of the area.
(3) If a development planning area has been established, the Minister shall,
(a) cause to be carried out an investigation and survey of the environmental, physical, social and economic conditions affecting the development planning area or any part of it; and
(b) cause a proposed development plan for the planning area or part of it to be prepared, within a period of two years or such other period of time as the Minister considers appropriate.
[9] The appellant submits that the Minister’s instruction to the effect that the preservation of the Cherrywood lands for agricultural uses was a ‘given’ breached s. 2(3)(a) of the OPDA. The core of the appellant’s submission on this issue is succinctly set out at para. 46 of its factum:
The obligations imposed by s. 2(3) are mandatory and the Minister cannot derogate from the requirement that a proposed development plan be prepared. Nor can he impose restrictions or limitations to the type of investigation to be carried out or to prejudge or predetermine the elements of the plan to be prepared.
[10] I do not agree with the appellant’s contention that an investigation and survey conducted pursuant to s. 2(3)(a) of the OPDA must be unrestricted or open‑ended. Indeed, in my view, the purpose, policy and language of the Act support the conclusion that it is entirely acceptable for the Minister to set certain parameters for an investigation and survey.
[11] The modern principle of statutory interpretation is that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of Act, and the intention of the legislature: see Re Rizzo and Rizzo Shoes Ltd., [1989] 1 S.C.R. 27 at 43.
[12] The provisions of the OPDA make it clear that the scheme of the Act is intended to confer a broad policy discretion on both the Minister and Cabinet in creating a development plan. Section 2(3) authorizes the Minister to designate a development planning area and to cause an investigation and survey to be conducted with respect to all or “any part” of the area. Section 3(d) of the Act provides that a development plan may contain such policies as the Minister considers advisable. Sections 13 and 15 of the Act provide that a development plan established under the OPDA overrides conflicting municipal plans and by‑laws.
[13] The appellant asserts that the Minister restricted the scope of the investigation and survey of the development planning area for three reasons – to retain the Cherrywood lands for agricultural use, to supersede local planning initiatives undertaken by the City of Pickering, and to accommodate a land exchange between the provincial Government and developers who owned land in the Oak Ridges Moraine.
[14] Accepting the accuracy of the appellant’s description of the Minister’s motivation for invoking the OPDA and for structuring the investigation and survey in the fashion he chose, I see nothing improper in the Minister’s conduct. Nor does the Minister’s decision come close to being a breach of s. 2(3) of the OPDA. The Cherrywood lands have been preserved for agricultural use for many years and by successive NDP, Conservative and Liberal governments. The Government is permitted to take steps to safeguard that designation. In 2003, the City of Pickering took steps that had the potential to call into question that designation. One of the core purposes of the OPDA is to permit the provincial Government to step in and override municipal processes and decisions that run counter to provincial land use policy. Finally, the land exchange, whereby Seaton would be open for development while the Oak Ridges Moraine would not, is precisely the type of broader land use policy decision involving more than one municipality and more than one land use (development, parkland, heritage sites) that is well‑suited to resolution by the provincial Government. The OPDA simply provides the mechanism.
The Section 4(1) Issue
[15] Section 4(1) of the OPDA provides:
The Minister shall ensure that the public is given an opportunity to participate in the preparation of the proposed development plan.
[16] The appellant contends that it has been denied the right of meaningful participation in the development plan process.
[17] One component of the appellant’s complaint is set out in para. 60 of its factum:
The Appellant experienced first hand the futility of expressing its opinion regarding the proposed development plan during the initial preparation stage. The Appellant’s counsel and professional engineer attended one of the meetings that purported to be open to the public for consultation and asked the study team whether it had considered urban development for the Cherrywood lands. The study team responded that “of course” it had not considered urban development on “the west side of the site” (i.e. Cherrywood) as the Cherrywood lands were intended to be “an agricultural preserve in perpetuity”. It is clear that the study team would not consider urban development for Cherrywood given that the terms of the reference imposed by the Minister specifically mandated the study team not to.
[18] In my view, this complaint about non‑participation dissolves with the resolution of the first issue. If the Minister is entitled to define the contours of the investigation and survey to be conducted under s. 2(3)(a) of the OPDA, then proffered opinions to Planning Alliance completely outside, or antithetical to, its defined contours are meaningless.
[19] Similar reasoning also serves as a response to another complaint by the appellant, namely, that while it was included in some meetings, it was not invited to the “by invitation only” meetings with various stakeholders. If “Cherrywood shall remain agricultural” is a permissible ‘given’ in the planning process, the party conducting the investigation and survey for the Minister is not required to invite an entity whose only interest and message is “Cherrywood should be urbanized”.
[20] Finally, I note that there was nothing to prevent the appellant from responding to the open call for submissions about the development plan. The appellant conducted many studies of the lands in question. It was open to the appellant to submit these studies and to make submissions to the Minister with a view to persuading the Minister that his ‘given’ concerning the Cherrywood lands should be changed.
Disposition
[21] I would dismiss the appeal.
[22] The respondent is entitled to its costs of the appeal, which I would fix at $20,000, inclusive of disbursements and GST. There should be no order of costs with respect to the intervenor.
Signed: “J.C. MacPherson J.A.”
“I agree J.I. Laskin J.A.”
“I agree S.E. Lang J.A.”