Maplehurst Bakeries Inc. v. Corporation of the City of Brampton et al. [Indexed as: Maplehurst Bakeries Inc. v. Brampton (City)]
44 O.R. (3d) 667
[1999] O.J. No. 1736
Court File No. 530/98
Ontario Superior Court of Justice
(Divisional Court)
Southey, Coo and Carnwath JJ.
May 10, 1999
Planning -- Official plan -- Amendment -- Jurisdiction of Ontario Municipal Board -- Board having jurisdiction to extend or expand boundaries of adopted official plan -- Board having jurisdiction to change uses proposed in official plan amendment -- Planning Act, R.S.O. 1990, c. P.13, s. 17(50).
The Ontario Municipal Board has jurisdiction to extend or expand the boundaries of an adopted official plan, although the Board might exceed its jurisdiction by expanding the boundaries to an unreasonable extent.
The Ontario Municipal Board has jurisdiction to approve an official plan amendment that contains modifications that would change the uses proposed in the amendment, although the Board might exceed its jurisdiction by adding uses that are completely incompatible and inappropriate to other permitted uses.
APPEAL under s. 96(1) of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28.
Cases referred to Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798, 99 D.L.R. (4th) 738 (Div. Ct.) Statutes referred to Planning Act, R.S.O. 1990, c. P.13 (am. S.O. 1996, c. 4, s. 9), s. 17(50) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.03(1)
Steven A. Zakem, for appellant. Brigida I. Colangelo, for City of Brampton. Neil G. Davis, for Velcro Canada Inc. and all other respondents supporting the appeal. Stanley M. Makuch and A. Neil Craik, for Par-Pak Ltd. and Ebrahim Properties Ltd.
Jurisdiction
The judgment of the court was delivered by
SOUTHEY J. (orally): -- The Board's order raises two issues: (a) whether the Ontario Municipal Board had jurisdiction to extend or expand the boundaries of an adopted official plan amendment under s. 17(50) of the Planning Act, R.S.O. 1990, c. P.13; and (b) whether the Board had jurisdiction to approve an official plan amendment which contains modifications which would change the uses proposed in the official plan amendment. In this case the changes involve adding residential uses when no residential uses are called for in the official plan amendment. We have no hesitation in answering both those questions in the affirmative as a matter of general principle. That does not mean, however, that the Board might not exceed its jurisdiction by expanding the boundaries to an unreasonable extent or by adding uses which were completely incompatible and inappropriate to other permitted uses.
Prematurity of Appeal
Despite the views expressed by Mr. Justice McWilliam when he granted leave to appeal, we are all of the view that this appeal should be quashed as premature. The Board has not yet made a decision as to what modifications, if any, will be permitted in the official plan amendment, either by way of enlarging the area covered or by permitting additional uses. We are, not prepared to make any ruling respecting jurisdiction other than the ruling we have already made until after the Board has conducted its hearing and made its decision. To do otherwise would be to fragment the proceedings contrary to the decision of this court in Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798, 99 D.L.R. (4th) 738.
To make it abundantly clear, we state explicitly that it will be open to the appellant and the respondents supporting the appeal to question the jurisdiction of the Board in due course if they consider the Board has exceeded its jurisdiction.
For the foregoing reasons the appeal is quashed.
Costs
Having regard to the order of the Board and the reasons given by the Board and in light of rule 61.03(1), we do not consider that this is a case in which costs should be ordered. There will be no order as to costs.
Order accordingly.