ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
o’driscoll, mccombs and wilson jj.
B E T W E E N:
GAILE MCGREGOR
Applicant
- and -
THE CORPORATION OF THE CITY OF LONDON, THE UPPER THAMES RIVER CONSERVATION AUTHORITY and RIVAL DEVELOPMENTS INC.
Respondents
Gaile McGregor, In Person
G. P. Belch, for the City of London
T. G. Price, for The Upper Thames River Conservation Authority
B. R. Card, for Rival Developments Inc.
HEARD AT LONDON: January 8 and 9, 2004.
I. NATURE OF PROCEEDINGS
1On August 13, 2003, the applicant, Ms. McGregor, commenced this application for judicial review under s.2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1, seeking an order:
Quashing the decision of the Council of the City of London (City), dated August 5, 2003, which approved the site plan submitted by the Respondent, Rival Developments Inc., (Rival) for a townhouse complex proposed for 1 Beaufort Street, London, Ontario.
Quashing the “conditional approval” given to the development by The Upper Thames River Conservation Authority (UTRCA) in its letter, dated July 25, 2003, to the City.
The application fails.
II. CHRONOLOGY
2On August 31, 2001, Rival filed an application with the City for an Official Plan amendment and a Zoning By-law amendment. The amendments requested would re-designate the subject property, which is vacant land, at 1 Beaufort Street so that twenty-seven (27) townhouses could be constructed on the site which measures 1.9 ha. or 4.7 acres.
3Rival was the purchaser of the subject property under an agreement of purchase and sale with the registered owner, John Rolle Lauridsen. The purchase and sale was conditional upon Rival obtaining the necessary planning approvals.
4The application for Official Plan and Zoning By-law amendments was made by Rival, on behalf of the registered owner.
5The proposed amendments, if granted, would re-designate the subject property from “open space” to “low density residential” and permit cluster housing at the location.
6The applicant lives at 39 Gunn Street, London, Ontario, a block south of Beaufort. From August 31, 2001, the date of filing of the application by Rival, to this day, the applicant, as is her right, has been actively involved in efforts to block the proposed development. (See: Affidavit of G. McGregor, dated August 14, 2003 – Application Record: Vol. I; Tab III).
7The City failed to make a decision on Rival’s application within ninety (90) days after the filing of the application thereby giving Rival the right to appeal to the Ontario Municipal Board (OMB) under the provisions of s.22(7) [Official Plan] and s.34(11) [Zoning] of the Planning Act, R.S.O. 1990, c.P.13.
8On January 31, 2002, Rival appealed to the OMB.
9On July 2, 2002, the City, unanimously:
(a) refused the request to amend the official plan;
(b) refused the request to amend the Zoning By-law No.Z-1 in order to permit cluster housing at 1 Beaufort Street.
10The City’s refusal was based on the “absence of a complete and sufficient environmental impact study to demonstrate that the proposed development will not negatively impact the river corridor” (Application Record: Vol. II, Tab J: p. 245)
11Both the City and Ms. McGregor appeared before the OMB and opposed Rival’s appeal. On this judicial review application, the City opposes Ms. McGregor’s application.
12As stated in her Factum at par. [5], Ms. McGregor “was granted Party standing [at the OMB]. Ms. McGregor represented herself at the hearing, and has continued to be self-represented in subsequent proceedings”.
13The hearing before the OMB lasted eleven (11) days. The appeal was conducted in two (2) phases: July 15 to 19, 2002 (5 days) and September 16 – 23 , 2002 (6 days). There was an evening session to permit interested parties to attend. At the request of Ms. McGregor, the OMB vice chair who heard the appeal walked the site and the surrounding neighbourhood, including the Waldorf School property and Gibbons Park.
14On December 12, 2002, the OMB released its decision (28 pages) allowing Rival’s appeal. The OMB said, in part:
p. 5 The proposal by Rival is to construct a maximum of 27 townhouse units, in five separate blocks, on the west side of the property. The frontage on Beaufort Street, an unassumed road allowance, would be approximately 143 m (470 feet). Although the site plan has not been referred to the Board, the draft plan proposes that Beaufort Street be improved and terminated with a cul-de-sac and water and sanity sewer services be extended to the development from the Waldorf School property. While the property is approximately 1.9 hectares, the area for development would be approximately 0.783 hectares, leaving a 30 metre buffer between the development limit and the Thames River. Rival’s position at the hearing was that it is prepared to convey surplus lands beyond the development limit, leaving a 30 metre buffer or corridor in the Open Space land use designation and transferring ownership to the City of this privately owned land.
15The OMB identified the main issues before it as being:
(i) the extent to which development should be permitted in hazardous land;
(ii) the development envelope, including the abutting Thames River corridor;
(iii) the impact upon natural environment;
(iv) the appropriateness and compatibility of the site for residential intensification, and
(v) the impact of increased traffic.
16In its “Summary of Findings and Decision”, the OMB said:
p. 26 Based on a consideration of all of the evidence the Board finds that the development proposal constitutes good planning, has regard for the provincial interest and the Provincial Policy Statement, conforms to the policies contained in the Official Plan and should be approved. In arriving at this decision, the Board has considered all of the evidence, including the positions and submissions of those parties opposed to the project.
p. 27 In arriving at its decision to modify and approve the Plan and amend the By-law, the Board also relies on Rival’s intention to convey surplus lands to the City, which will ensure there is at least a 30 metre corridor along the bank of the Thames River that will remain in the Open Space designation and continue to be accessible to the public. The offer by Rival of these surplus lands is clearly a net benefit of the project given enjoyment of the property by the public has been based on the goodwill of the owner. This portion of the Thames River is not currently part of a walking or bike trail, as the property operated as a commercial enterprise until 1983 and has remained in private ownership.
17On March 14, 2003, the OMB issued a further decision which states, in part:
The Board orders that the Official Plan for the City of London is modified in the manner set out in Attachment “1”, and as so modified is hereby approved. The Board orders that Zoning By-Law Z-1 of the City of London is amended in the manner set out in Attachment ‘2’.
18On December 20, 2002, Ms. McGregor, the applicant, wrote to the OMB and applied, under s.43 of the Ontario Municipal Board Act, R.S.O., 1990, c.O.29, for a reconsideration of its December 12, 2002 Decision. The application was refused as set out in a letter, dated February 24, 2003, from the Chair of the OMB to the applicant.
19The applicant brought an application under s.96 of the Ontario Municipal Board Act seeking leave to appeal to the Divisional Court from the OMB decision, dated December 12, 2002.
20On April 24, 2003, after the time had expired, W.A. Jenkins J. granted Ms. McGregor an extension of time in which to file the application for leave to appeal. The application for leave to appeal was heard by Ross J. on May 23 and June 12 and 13, 2003, at which time judgment was reserved. On July 28, 2003, Ross J. released forty-six (46) pages of reasons setting out his reasons for dismissing the application for leave to appeal. In paragraph [145], Ross J. said:
In summary, the matters raised by the applicant, do not, in my view, raise any points of law of sufficient importance to merit the attention of the Divisional Court. In part, the objections to the decision relate to matters of evidence and the weight the Board [OMB] gave to such evidence which are issues that are within its competence and expertise.
21On October 30, 2003, Ross J. heard submissions regarding the costs of the application for leave to appeal. In an endorsement, released on November 21, 2003, Ross J. fixed those costs at $6,154.03 and ordered Ms. McGregor to pay that sum to Rival within thirty (30) days. In his November 21, 2003 endorsement, Ross J. observed:
12…While it is submitted that Rival’s application to construct residential housing in the flood fringe area is a first, it is apparent from the Board’s reasons and excerpts therein taken from the Staff Report that the same policies had been applied to a previous development. At p. 12 of the Board’s reasons, the Board quote (sic) the following from the Staff Report:
The University of Western Ontario TD Waterhouse Stadium is located on part of the flood fringe and was developed under the same policies and review as proposed for one Beaufort Street. (the subject property)
III. SITE PLAN APPLICATION
22The Planning Act provides:
(4) No person shall undertake any development in an area designated under subsection (2) unless the council of the municipality or, where a referral has been made under subsection (12), the Municipal Board has approved one or both, as the council may determine, of the following:
Plans showing the location of all buildings and structures to be erected and showing the location of all facilities and works to be provided in conjunction therewith and of all facilities and works required under clause (7)(a).
(7) As a condition to the approval of the plans and drawings referred to in subsection (4), a municipality may require the owner of the land to,
(a) provide to the satisfaction of and at no expense to the municipality any or all of the following:
23The Planning Act does not set out any procedural requirements for an application for site plan approval.
24Since September 1, 1986, the City has had in place its Site Plan Area Control By-law No. C.P. – 1213-340, as amended. Under the City’s Official Plan, the whole of the City of London is a site plan control area. The by-law consists of seventeen (17) regulatory sections; Schedule 1: the Site Plan Design Manual, Schedule 2: the Standard Development Agreement Clauses, and Schedule 3: the list of appointed officials to whom Council has delegated its powers under s. 41 of the Planning Act.
25Notice of a public meeting, dated July 11, 2003 (said to have been received on July 14, 2003) “Re: An Application by Rival Developments Inc. for Site Plan approval to develop 27 townhouse units at 1 Beaufort Street”, scheduled for City Hall at 8:00 p.m. on July 28, 2003, was sent to interested parties by the Director of Building Control of the City of London.
26As pointed out by counsel for the City and counsel for Rival, there is no requirement in the Planning Act, or elsewhere, requiring the City to hold a public meeting regarding site plan approval.
27A report to the Chair and members of Planning Committee of London’s City Council from the General Manager of Planning, dated July 22, 2003, became available on Friday, July 25, 2003. It recommended approval of Rival’s site plan relating to 1 Beaufort Street and consisted of:
(i) the attached site plan;
(ii) landscape plan;
(iii) site servicing plans; and
(iv) development agreement clauses for a townhouse complex.
On page 4 of the Report, it is stated:
The proposed townhouse complex complies with the regulations of the zoning by-law approved by the OMB.
On page 3 of the Report, it is stated:
The developer will be deeding sufficient land to create the cul-de-sac in conjunction with their neighbour to the west. The developer is responsible for the construction of the bulb. The developer will also be dedicating the open space corridor to the city. The dedication provides for the 30m minimum separation from the river.
On page 1 of the Report, it is stated:
Approval of the attached site plan is recommended for the following reasons.
(1) The proposed site plan is considered to comply with the regulations of the residential zone.
(2) The proposed site plan is considered to comply with the applicable minimum design standards of the City’s Site Plan Control By-law and Policies.
(3) The proposed site plan is considered compatible and appropriate within the context of neighbouring properties.
28At the July 28, 2003 meeting of the Planning Committee (whose members are not all elected members of London’s City Council), the committee decided, on a 4-2 vote, that notwithstanding the recommendation of the City’s General Manager of Planning and Development as set out in the July 22, 2003 report, the site plan approval of Rival relating to 1 Beaufort Street, should be refused.
29The Planning Committee’s Report of July 28, 2003, was scheduled to go before London City Council on August 5, 2003. In the interim, the applicant, Ms. McGregor, and others who opposed this development, including Jessee Greener (jgreener@uwo.ca), were attempting to rally political support from members of Council by circulating emails entitled “Stop the Developers! Save Our River!” One of the City Councillors contacted was Edward C. Corrigan, Ward 7. Mr. Corrigan replied with an email on July 29, 2003. It states:
Jesse et al this campaign will not stop the development. I voted against the development in the first instance as did all members of Council. I support preservation of land along the Thames River. This land is not an Environmentally Sensitive Area had (sic) had been previously developed and in fact has contaminated soil on it as it was the site of an old Mill which has been destroyed. The OMB overruled Council and has granted the zoning. The OMB also refused an internal appeal and upheld the original decision. The Ontario Superior Court has dismissed the application for judicial review and the zoning stands.
There is a legal right to develop the land. City policy, Upper Thames policy and provincial policy allows the development. The City of London professional staff recommended and supported the site plan, Upper Thames River Conservation Authority supported it. Our legal right to challenge the site plan or to deny services according to our City legal department is virtually non-existent. In law there is a mandatory duty under the Municipal Act to provide services and they cannot be unreasonably with held.
Not one argument of substance in opposition that actually dealt with the site plan was presented or given to support the rejection of the site plan. Site Plan approval is normally a formality, you can tinker with it and strengthen fences, improve screening, increase parking, adjust site lines and help protect the environment in limited fashion and within the zoning but you cannot reject it outright and you cannot reject it without even providing reasons. This is exactly what Planning Committee did on Monday in a vote of 4-2. This action may make us feel good but the law clearly supports the developer.
Our professional planning staff can be called as expert witnesses in support of the site plan approval. Jeff Brick the expert from the Upper Thames Conservation Authority who gave evidence in support of the plan will be called to testify in support of the site plan. The standard procedure is that the appeal to the OMB, which the developer has by right, will go back to the same Member of the OMB that has knowledge of the file and already ruled in favour of the development. This is a guaranteed loss for the City.
I expect that costs will be awarded against the city and we will have to pay for all the legal costs associated with this refusal. We will have to hire outside planning consultants to provide professional planning advice against our own planning staff and the expert from Upper Thames, and the experts of the developer who have already technical reports that satisfied our City professional planning staff, Upper Thames and probably the Ministry of the Environment as well. Our City legal staff will not enthusiastically support our refusal and we may have to go to outside legal counsel to argue the case and it is virtually guaranteed to lose. It could cost a $100,000 to fight a case this is almost guaranteed to loose [sic]. Unless this is part of a strategy that will pay some dividends we should not put our time and effort and tax dollars into a lost cause. The money would [be] better spent buying land along the Thames River to preserve land, not waste it on a legal fight we have no hope of winning. We must pick and choose our fights and be careful with our limited resources and goodwill. I support a proposal to update our Thames River Watershed Study and support efforts to prevent development in the flood fringe and to create a one river one park to safe guard the river and to protect the environment and to preserve green space for future generations. However, this is not the ground that this battle needs to be fought over because when we loose [sic] it will set back the cause and waste a pile of money that should be put to better use.
Ed Corrigan
Councillor, Ward 7
(Application Record, Vol. II, p. 295-6)
30In his email forwarding Mr. Corrigan’s email, Jesse Greener said to the applicant, Ms. McGregor:
“It is of concern that one of the ‘better’ councillors is going to vote the other way on this as I take it he will from his letter.
31At 9:09 a.m. on August 5, 2003, Ms. McGregor sent an email to the Mayor of the City of London and to other members of Council. At page 3, the applicant repeated what she had written earlier to one of the councillors:
Following is an excerpt from an email that I sent one of your colleagues yesterday when someone forwarded me an email from this individual setting out the “wasted money” argument:
As far as throwing money away, I can assure you that if the City approves this plan as it stands, I will file an application for judicial review on grounds of procedural irregularities …
So the City is going to face further legal action either way. It is just a question of whether you want to look like a hero or a villain to the public as the drama plays out.
I think it should be clear from my actions over the last year that this is not an idle threat. It is also not just crankish obstructionism. I have personal as well as principled motivations for pursuing this matter. Even aside from my concern about what looks to be an almost-total destruction of my local ecosystem, I am one of the downstream property owners whose property will be most at risk if this development goes forward without proper investigation. So I WILL fight if I have to. I hope it won’t be necessary. I would far rather be on the same side as the City in this battle, fighting for the rights of ordinary citizens to preserve their common heritage against the rights of speculators to make a quick buck at any cost.
In her affidavit, sworn August 14, 2003, the applicant deposed:
I was involved with the local opposition to Rival’s proposal almost from the outset. Among other things, I wrote several reports to the City Planning Division on behalf of the local residents’ association. As a sociologist, a legal scholar, and a partner (with my husband) in a geoscience consulting firm, I was well positioned to understand both the issues and technical submissions. …
The hearing of the Respondent’s appeal was conducted in two phases, July 15-19 and September 16-23, 2002, with Board Vice-Chair Jan de P. Seaborn presiding. At the beginning of the procedure, I applied for and was granted Party standing in the matter. I represented myself at the hearing, and continue to be self-represented. I should perhaps point out that although I have a law degree I am not a lawyer. Until my involvement with this case, I had no practical experience with the courts.
On the morning of July 25, … I did not want to wait until the last minute to start my lobbying;
There is only one further item that I feel should be mentioned about the August 5 meeting. ….
My own interpretation of these events is that the majority [of council] knowingly accepted an incomplete and unsatisfactory site plan simply because they did not want the City to have to face the bother of an appeal.
- It will be evident from the foregoing that I think the City Staff bungled their review of this site plan.
Although there is a big difference between laxness and deliberate favouritism, I believe that when one looks at the way the staff have acted since the very beginning of the process, there is a very considerable appearance of bias.
32On August 5, 2003, London’s City Council, on a vote of 10-8, refused to accept the July 28, 2003 recommendation of its Planning Committee and accepted the recommendation of the General Manager of Planning and Development for the City of London and approved Rival’s site plan for 1 Beaufort Street.
IV. LAUNCHING OF THIS JUDICIAL REVIEW APPLICATION
33On August 13, 2003, at London, Ontario, Ms. McGregor launched this application. In addition to the relief sought, as recited in the early paragraphs of these reasons, the applicant sought “an interim stay of the effect of the aforementioned approvals [site plan approval by the City on August 5, 2003 and the “conditional approval” of the UTRCA of July 25, 2003] pending the hearing of the judicial review application”. The motion for interim relief came on before Templeton J. at London, Ontario, on September 29, 2003, was heard and reserved. The only party appearing to oppose the applicant’s application for interim relief was Rival, through its counsel Mr. B.R. Card. On January 9, 2004, the motion was adjourned sine die. On September 29, 2003, counsel for Rival brought a motion under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (formally the Vexatious Proceedings Act) before Templeton J. seeking an order that Gaile McGregor be prohibited from instituting or continuing any proceedings except by leave of a superior court judge. That motion, apparently, lies dormant.
V. THE PROPOSED “NEW MATERIAL”
34The applicant seeks to introduce at this judicial review application:
- The affidavit of the applicant, sworn August 14, 2003.
(Application Record, Volume 1; Tab III).
- The affidavit of W.M. Church, sworn September 3, 2003.
(Application Record, Volume III; Tab A)
- The affidavit of C.M. Pearce, sworn September 3, 2003.
(Application Record, Volume III; Tab B)
- The affidavit of Peter Ashmore, sworn September 5, 2003.
(Application Record, Volume III; Tab C)
35In 2002, none of this “new material” was before the OMB.
36On August 5, 2002, none of the material was before London’s City Council.
37In my view, none of this proposed “new material” is admissible because it does not satisfy the requirements set out in:
(i) Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (Ont. C.A.); leave to appeal to S.C.C. refused: 35 N.R. 85n.
(ii) Ontario Public Service Employees Union v. Ontario (1984), 45 O.R. (2d) 70 (Div. Ct.).
VI. THE UTRCA’S LETTER, DATED JULY 25, 2003, TO THE CORPORATION OF THE CITY OF LONDON REGARDING 1 BEAUFORT STREET
38The UTRCA is a creature of statute. Its power, mandate and jurisdiction are established under the Conservation Authorities Act, R.S.O. 1990, c. C.27 (CAA) and the Regulation made under the CAA, being Reg. 170, R.R.O. 1992. UTRCA’s authority and powers are found in s.20 and s. 21 of the CAA and its regulatory powers are set out in s.28 of the CAA and the Regulation.
39The property under consideration, 1 Beaufort Street, London, Ontario is within the jurisdiction of the UTRCA under the provisions of the CAA and the Regulation made under the CAA, namely R.R.O. 1990, Reg. 170 and its Schedule I.
40Counsel for UTRCA submits that his client has no jurisdiction or mandate, regardless of the wording of Jeff Brick’s letter, dated July 25, 2003, to the City of London, to bestow or deny site plan approval with respect to the application of Rival.
41The impugned letter of UTRCA points out that Rival was in the process of applying for a permit under s. 28 of the CAA and that if four (4) areas are satisfied to the satisfaction of UTRCA, the writer sees no reason why the s. 28 permit will not issue. However, Mr. Brick appears to be quite aware that approval of Rival’s site plan rests solely with the City because he states:
We note that the final requirements identified above are contingent on approval of the site plan by the City of London.
42Counsel for UTRCA is correct when he submits that UTRCA has no jurisdiction or power to grant or deny approval of Rival’s site plan application to the City of London. That approval rests solely with the City of London.
43UTRCA’s letter of July 25, 2003, simply advised the City of London of the state of Rival’s application under s. 28 of the CAA and UTRCA’s comfort level with clauses 5(g) and 5(k) of the draft Development Agreement, which forms part of Rival’s site plan application.
44The applicant’s allegations that UTRCA “showed bad faith in its dealings with her” is without foundation or evidence to support it. Personality clashes and “digging in your heels” does not amount to “bad faith”.
45In my view, because there was no “decision” or “approval” by the UTRCA, there is no basis to consider granting of the extraordinary discretionary remedy of judicial review regarding the July 25, 2003 letter of UTRCA.
VII THE STANDARD OF REVIEW APPLICABLE TO LONDON CITY COUNCIL’S DECISION MADE ON AUGUST 5, 2003
46It is uncontested that the August 5, 2003 resolution of London’s City Council, passed on a 10-8 vote, was intra vires the City because of the jurisdiction given to City Council under s.41, ss. 4 of the Planning Act. In Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342, Major J., for the unanimous seven (7) judge court, said:
In light of the conclusion that Nanaimo acted within its jurisdiction in passing the resolutions at issue, it is necessary to consider the standard upon which the courts may review those intra vires municipal decisions. Municipal concillors are elected by the constituents they represent and as such are more conversant with the exigencies of their community than are the courts. The fact that municipal councils are elected representatives of their community, and accountable to their constituents, is relevant in scrutinizing intra vires decisions. The reality that municipalities often balance complex and divergent interests in arriving at decisions in the public interest is of similar importance. In short, these considerations warrant that the intra vires decision of municipalities be reviewed upon a deferential standard.
Kruse v. Johnson, [1898] 2 Q.B. 91 (Div. Ct.), has long been an authority in Canadian courts for scrutinizing the reasonableness of municipal by-laws. There, Lord Russell of Killowen offered the courts some cautionary language on findings of unreasonableness (at p. 100):
A by-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern the people of the county, who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand their own requirements better than judges.
Or as more recently expressed in Shell [Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231] supra, per McLachlin J., at p. 244:
Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the “benevolent construction” which this Court referred to in Greenbaum [R. v. Greenbaum, [1993] 1 S.C.R. 674], and confer the powers by reasonable implication. Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives.
- I find these comments equally persuasive in the scrutiny of municipal resolutions. The conclusion is apparent. The standard upon which courts may entertain a review of intra vires municipal actions should be one of patent unreasonableness.
47In my view, the standard of review of the impugned resolution of the London City Council, dated August 5, 2003, is one of patent unreasonableness.
48Was the August 5, 2003 decision patently unreasonable?
(a) After an eleven (11) day hearing, the OMB concluded that Rival’s proposal constituted good planning and allowed Rival’s application to amend London’s official plan and its zoning by-law.
(b) On July 14, 2003, interested parties received a notice from the City, dated July 10, 2003, regarding a public meeting, scheduled for July 28, 2003, to consider the next step which was Rival’s site plan application for approval. There was no legal obligation on the City to hold such a public meeting.
(c) On July 25, 2003, the City released its Report, dated July 22, 2003, regarding Rival’s application for site plan approval. The Report recommended approval for the three (3) reasons cited under “Rationale” on page 1 of the Report and set out earlier in these reasons. (Application Record: Vol. II: p.279)
(d) The July 22, 2003 Report stated that the proposed site plan complied with the official plan (as amended by the OMB) and the zoning by-law (as amended by the OMB) and with the Provincial Policy 3.16 (flood fringe flood proofing).
(e) The arguments put forward on this judicial review application by the applicant echo her submissions to the OMB. This judicial review application is concerned only with Rival’s site plan approval application granted by London’s City Council on August 5, 2003. This application is not a forum where the applicant is entitled to recycle the arguments she submitted to the OMB nor to unveil submissions that the applicant wishes she had made to the OMB.
(e) From day one, the applicant has, as is her right, kept everyone’s “feet to the fire”. However, on reviewing the record and submissions before us, it cannot be said that the City’s approval of Rival’s site plan on August 5, 2003, by a vote of 10-8, is unreasonable, let alone patently unreasonable. Put another way, there does not appear to be any legitimate, defendable basis upon which the City could have refused to approve Rival’s site plan.
(f) From the beginning, Ms. McGregor knew that she was involved in a political, democratic process where votes count. The applicant has no complaints about the July 28, 2003 vote of the Planning Committee that favoured her submissions by a 4-2 vote. Ms. McGregor has no valid basis for any complaints about Council’s vote on August 5, 2003 favouring Rival’s application by a 10-8 vote.
49Ross J. aptly described this familiar type of struggle in his endorsement of November 21, 2003, as a situation “of private litigation wherein one party sought to obtain permission to develop property and the other party sought to oppose that development.” The applicant won the preliminary event vote, but lost the final, main event vote.
VIII RESULT
50The judicial review application to quash is dismissed regarding:
(1) The City’s approval on August 5, 2003 of Rival’s site plan; and
(2) UTRCA’s alleged “conditional approval”, dated July 25, 2003.
IX COSTS
51Prior to reserving judgment, Ms. McGregor and counsel were asked for their submissions on costs.
52The applicant repeated the submissions as to costs that she made before Ross J. – “that this was public interest litigation.” For the reasons set out by Ross J. in his endorsement of November 21, 2003, at paragraphs [23] to [28] inclusive, which I find to be applicable to this application, I hold that there is no public interest litigation issue present in this judicial review application. Fixed costs, on a partial indemnity basis, will follow the event.
53For the City of London, Mr. Belch, seeks costs of $1,500.00 per day counsel fee for two (2) days plus twelve (12) hours of preparation at $200.00 per hour. This includes, as well, a full day’s hearing before Templeton J. on “the interim application”.
54For UTRCA, Mr. Price seeks costs of $1,500.00 per day counsel fee and five (5) hours of preparation at $200.00 per hour plus assessable disbursements plus G.S.T.
55For Rival, Mr. B. Card, a lawyer called to the Bar in 1978 and specializing in municipal and administrative law, seeks costs in the fixed amount of $7,500.00, which includes fees, preparation, disbursements and G.S.T.
56In my view, the costs requested by all counsel fall into the category of “reasonable”.
57The applicant shall, forthwith, pay the following amounts for costs:
To the City of London: $5,400.00, plus G.S.T.
To UTRCA: $4,000.00, plus assessable disbursements plus GST
To Rival: $7,500.00, all inclusive.
O’DRISCOLL J.
MCCOMBS J.
WILSON J.
RELEASED:
COURT FILE NO.: London 1406
DATE: 20041223
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
o’driscoll, mccombs and wilson jj.
B E T W E E N:
GAILE MCGREGOR
Applicant
- and -
THE CORPORATION OF THE CITY OF LONDON, THE UPPER THAMES RIVER CONSERVATION AUTHORITY and RIVAL DEVELOPMENTS INC.
Respondents
REASONS FOR JUDGMENT
Released: December 23, 2004