COURT FILE NO.: 662/02

DATE: 2003-05-29

SUPERIOR COURT OF JUSTICE - ONTARIO

(Divisional Court)

RE: joia investment inc. (Moving Party/Appellant) v. town of collingwood (Respondent)

BEFORE: Justice Then

COUNSEL: Stanley Makuch and Signe Leisk for the Moving Party/Appellant Leo Longo, for the Respondent

HEARD: May 15, 2003

E N D O R S E M E N T

THEN J.:

[1] The moving party seeks leave to appeal on the basis of Rule 62.02(4)(b) from the decision of the Ontario Municipal Board dated October 28, 2002 which upheld the validity of the respondents Interim Control By-Law 02-40.

[2] Section 38(1) of the Planning Act authorizes the council of a local municipality to pass an interim control by-law restricting land use for one year where the council has directed that a review or study in respect of land use planning policies.

[3] In Re Equity Waste Management of Canada et al. and Corporation of the Town of Halton Hills, [1997] 35 O.R. (3d) 321 (C.A.) the Court of Appeal discussed the purpose of interim control by-laws and the role of the courts in assessing their validity. At p. 338 Laskin J.A. stated the following:

. . . A municipality need not have a planning report in hand before passing an interim control by-law. An important purpose of interim control by-laws is to permit a municipality to change its mind, to reconsider its land use policies. Whether an area is suitably zoned, whether development should be suspended in the public interest, and whether proposed projects are compatible with a municipality’s long-range planning objectives are matters to be decided by municipal councils, not by courts. The role of the court is limited to ensuring that the municipality did not exceed its powers or exercise those powers in bad faith.

[4] At p. 337, Laskin J.A. further stated the following with respect to the purpose of interim control by-laws and the nature of compliance with s. 38(1) of the Planning Act:

Interim control by-laws are, therefore, an important planning instrument for a municipality. They allow the municipality breathing space to rethink its land use policies by suspending development that may conflict with any new policy. As Henry J. wrote in 715113 Ontario Inc. v. Ottawa (City), supra at p. 106 O.R., p. 556 D.L.R.:

A by-law enacted under this provision is authorized for the purpose of protecting the public interest in suitable zoning of the area in question and it takes precedence over the right of affected landowners to use their lands freely.

Before passing an interim control by-law, a municipality must meet only one statutory condition. Under s. 38(1) of the Planning Act, it must have by “by-law or resolution directed that a review or study be undertaken in respect of land use planning policies in the municipality or in any defined area” of it. The Town complied with this statutory condition before passing the by-law. By resolution, it directed that a study be undertaken of land use planning policies in the Corridor.

[5] The moving party submits that the statutory requirement was not met in this case because the respondent acted on staff advice that further planning studies were unnecessary but chose only to authorize those additional studies which became necessary. The moving party submits that the Board erred in allowing the municipality to use interim control by-law as a device for the municipality to buy time to bring its planning instruments based on planning studies already conducted into conformity with already approved plans. The moving party submits that the municipality has strayed outside both s. 38 of the Planning Act and the purpose of s. 38 explained by Re Equity Waste Management, supra.

[6] Although I appreciate that the Ontario Municipal Board is entitled to considerable deference in this area of its expertise the issue of compliance with s. 38 of the Planning Act in the circumstances of this case gives rise, in my view, to serious legal debate. It is important to both developers and municipalities generally to clarify the limits on the power of municipalities to pass interim control by-laws.

[7] The moving party has met the requirements of Rule 62.02(4)(b) and leave to appeal is granted. Costs of this motion reserved to the panel hearing this appeal.

Then J.

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