COURT FILE NO.: 789/03

DATE: 20040415

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: Lafarge Canada Inc. v. 1341665 Ontario Limited and City of Toronto

BEFORE: Swinton J.

COUNSEL: Stanley M. Makuch and Signe B. Leisk for the Moving Party Lafarge Canada Inc.

Joel D. Farber for the Responding Party 1341665 Ontario Limited

HEARD: April 14, 2004

ENDORSEMENT

[1] Lafarge Canada Inc. has brought a motion pursuant to s. 96 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 for leave to appeal a decision of the Ontario Municipal Board dated December 16, 2003, in which the Board denied Lafarge party status in a site plan appeal launched by the Responding Party, 1341665 Ontario Limited, pursuant to s. 41(12) of the Planning Act, R.S.O. 1990, c. P.13.

[2] An appeal to the Divisional Court may only be made on a question of law and with leave of the Court. Leave to appeal will be granted only if there is reason to doubt the correctness of the decision on the question of law, and the matter is of sufficient importance that it should be determined by the Divisional Court (Mod-Aire Homes Ltd. v. Town of Bradford (1990), 1990 6990 (ON SC), 72 O.R. (2d) 683 (Div.Ct.) at 692).

[3] The Moving Party argues that the Board applied the wrong test for party status, by failing to determine that Lafarge was directly affected by the proceeding; that the Board considered irrelevant considerations; and that Lafarge has been denied natural justice.

Natural Justice

[4] The Moving Party argues that it has been denied natural justice, as it will be unable to participate in a hearing in which its private interests are likely to be affected. It relies on Wiswell v. Winnipeg (Greater), 1965 106 (SCC), [1965] S.C.R. 512 for the proposition that the Board, in hearing the appeal, acts in a quasi-judicial capacity and must give it an opportunity to be heard.

[5] In my view, there is no denial of natural justice here because Lafarge was not added as a party. Lafarge was given an opportunity to bring the motion to be added as a party and to be heard on that motion. However, it has no right to be added as a party to the site plan appeal proceeding.

[6] The rules of natural justice may require that a person be given an opportunity to be heard if his or her rights or obligations are to be affected by the decision of a tribunal. However, in determining whether that is the case, one must also consider the subject matter of the decision making power, the nature of the issue to be decided, and the importance of the determination on those directly or indirectly affected (The Minister of National Revenue v. Coopers and Lybrand, 1978 13 (SCC), [1979] 1 S.C.R. 495 at 504).

[7] Section 41 of the Planning Act deals with approval of site plans. If the city and developer can not agree, the developer can refer the matter to the Board pursuant to s. 41(12) of the Act. This Court has held in Hart v. 240953 Developments Ltd. (1979), 8 M.P.L.R. 149, a case where neighbours also sought party status in a site plan appeal, that “[t]he object of the appeal was to settle an agreement between the city and the developers”, although others might be affected by the terms of the agreement (at 153).

[8] The process under s. 41(12) does not determine the rights or obligations of a neighbouring property owner like Lafarge. This is not a case like Wiswell, where property owners who lost the protection of an existing zoning by-law were not properly notified of the hearing to amend the by-law. Here, Lafarge’s interests may be affected by the site plan agreement, but its rights are not affected. Therefore, there is no denial of natural justice.

The Decision to Deny Party Status

[9] The Board has the power under s. 38 of the Ontario Municipal Board Act to add parties. The decision to add parties is a matter of the Board’s practice and procedure. This Court has held in City of Toronto v. 1133373 Ontario Inc. (2000), 2000 17036 (ON CA), 16 M.P.L. R. (3d) 1 that the Court should not be engaged in drafting detailed guidelines for the Board to be used when adding parties (at para. 13), and that deference should be shown to the Board in dealing with matters of its own procedure (at para. 9).

[10] In Hart, supra, the Divisional Court did not hold that the Board must apply the same rules of standing applied in the courts. In that case, the Court observed that the nature of the hearing was the primary consideration, and concluded that the OMB did not err in refusing standing to neighbours in a site plan appeal (at p. 153).

[11] In determining whether Lafarge should be added as a party, the Board observed that the City could address issues such as traffic, loading docks and pedestrian safety, the issues which Lafarge wished to address. While Lafarge has a private interest in the outcome of the proceeding, that alone is not determinative of a claim for standing as a party. Even under Rule 13.01 of the Rules of Civil Procedure, to which Lafarge makes reference, there is no right to be added as a party, even if one’s interests are affected by the proceeding, and the courts consider such factors as the impact on the proceeding and the contribution of the individual or entity seeking to be added as a party. Here, the Board concluded that the City could adequately protect the public interest and would take into account the interests of neighbouring properties in presenting the case to the Board.

[12] The Board did not take into account irrelevant considerations in reaching its decision. Both the City’s capacity to address the issues and the impact of Lafarge’s participation in the process were relevant considerations as to whether to grant party status. Nor has it been demonstrated that the characterization of the City’s position affected the soundness of the decision.

[13] In my view, there is no reason to doubt the correctness of the Board’s decision on a question of law. Therefore, leave to appeal is denied.

[14] The Responding Party seeks costs on a substantial indemnity basis. The Moving Party’s conduct can not be characterized as so reprehensible as to deserve sanction in the form of substantial indemnity costs. Costs are awarded to the Responding Party on a partial indemnity basis, fixed at $3,500.00, payable within 30 days.

Released: April 15, 2004

Swinton J.