Court File and Parties

COURT FILE NO.: 632/04

DATE: May 24, 2005

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: DUFFIN CAPITAL CORPORATION, Applicant

A N D:

THE MINISTER OF MUNICIPAL AFFAIRS AND HOUSING, Respondent

BEFORE: DUNNET, CARNWATH and MOLLOY JJ.

COUNSEL: Alan J. Lenczner, Eli S. Lederman, and Mark Flowers for the Applicant

Jack D. Coop and Konstantina Chantzis, for the Respondent

HEARD: May 19, 2005

E N D O R S E M E N T

[1] We are all of the view that this judicial review should be quashed as being premature.

[2] At the current time, a process is underway pursuant to the Ontario Planning Development Act, 1994, Schedule A, S.O. 1994, c. 23 (“OPDA”) in respect of the subject lands, which are in the Pickering area. The applicant is a developer and owns a substantial portion of the subject lands in an area known as Cherrywood. A development planning area has been established by the Minister under s. 2(1) of the OPDA. The Minister is therefore required under s. 2(3) of the OPDA to: (a) cause an investigation and survey of various aspects affecting the planning area to be carried out and (b) cause a proposed development plan for the area to be prepared. The Minister has engaged a firm to conduct an investigation and survey, but that stage has not yet been concluded. The applicant objects to limitations the Minister has placed on this investigation stage, alleges that the Minister has failed to permit meaningful public participation at this stage and further alleges that the Minister has (for improper reasons) closed his mind to the possibility of urban development of the Cherrywood area, including the lands owned by the applicant.

[3] The OPDA process is in the preliminary stage. There are many steps between the establishment of a development and planning area under s. 2(1) of the OPDA and the end of that process when the development plan is approved by the Lieutentant Governor in Council. None of those steps has yet been completed, and most not yet begun. In particular:

• the investigation and survey stage under s. 2(1) of the Act has started but is not yet finished;

• a proposed development plan has not yet been prepared (s.3(b) of the Act);

• the opportunity for public participation in the preparation of the proposed plan pursuant to s. 4(1) of the Act has not ended;

• notice to the public of the proposed development plan has not been given (since the plan has not yet been prepared) and the opportunity for public submissions to the proposed plan has not yet arisen (s.4(2)(a) of the Act);

• no municipalities or planning boards have yet been consulted with respect to the contents of the proposed plan (s. 4(2)(b) of the Act);

• no modifications to the plan have yet been considered, of course, because the plan itself has not yet been completed (s. 4(4) of the Act).

[4] The Minister retained an outside planning firm to carry out the investigation and survey stage and to prepare a development plan. The applicant points to the terms of reference for the planning firm which direct that the Cherrywood lands are to remain agricultural and the lands to the east of them (“the Seaton lands”) are to be developed for urban use. The applicant argues that the Minister has improperly fettered the planning process by directing that the Cherrywood lands shall only be considered for agricultural use. The applicant also argues that it has been excluded from the public participation process mandated under s. 4(1) as part of the process for the preparation of the development plan. At the time this application was brought, the planning firm retained by the Minister had conducted two public meetings, three workshops and attended 20 consultation meetings. The two public meetings were attended by representatives of the applicant, but when they attempted to ask questions about urban development for their lands they were advised that this was not an option being considered. The other workshops and consultation meetings were by invitation only and the applicant was not invited to attend. The applicant argues that this is a fundamentally unfair process and the result is a foregone conclusion.

[5] The applicant seeks:

(a) An Order in the nature of mandamus requiring the Minister to permit the preparation of the plan “to be conducted without limitation”

(b) A declaration that the Minister is obliged to permit the public “to participate in a meaningful way in the preparation” of the proposed plan; and

(c) An Order prohibiting the Minister from submitting the proposed development plan to the Lieutenant Governor in Council until the Minister has provided the opportunity for the proposed development plan “to be conducted without limitation and with the participation of the public”.

[6] This Court and the Court of Appeal have consistently recognized that the time for judicial review of decisions by tribunals or other statutory decision makers is at the conclusion of the proceedings and after a final decision has been rendered. Proceedings ought not to be fragmented, but rather allowed to run their course so that a decision by this Court is based on a full record, with the benefit of the reasons of the tribunal. Interrupting administrative proceedings for judicial review applications creates delay and interferes with what is often a process important to the public interest. Further, deciding issues on judicial review midway through an administrative proceeding will often be a waste of time and resources for the parties and the court, as in the final analysis the issue might become moot, or at least unnecessary to the court’s final determination. (See Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 O.R. (3d) 798 (Div.Ct.); Sears Canada Inc. v. Davis Inquest (Coroner of ), [1997] O.J. No. 1424 (Div.Ct.); University of Toronto v. C.U.E.W., Local 2 (1998), 65 O.R. (2d) 268 (Div.Ct.); Re Howe v. Institute of Chartered Accountants of Ontario (1994), 19 O.R. (3d) 483 (C.A.).)

[7] There have been situations where this Court has been prepared to intervene in an ongoing administrative process. However, those cases are rare and involve exceptional or extraordinary circumstances such as a fundamental failure of justice or an error going to jurisdiction: Sears Canada v. Davis Inquest, supra; University of Toronto v. C.U.E.W., Local 2, supra. There are no such circumstances in this case. We see no reason why the OPDA process should not unfold in the usual course. It is not appropriate at this stage for this Court to dictate to the Minister how the investigation should be conducted or the nature and extent of public consultation that is required, which is essentially the relief sought by the applicants in this proceeding. There are still many opportunities for consultation and participation throughout the process that is yet to evolve. Given the extensive consultation process yet to come and the opportunity for formal submissions to the Minister and proposals for modifications to the proposed plan, it is not possible to say at this stage that the end result is “a foregone conclusion” as argued by the applicant. If, at the end of that process, a development plan is recommended to and approved by the Lieutenant Governor in Council, and if the applicant is unhappy with its terms, the applicant will have the full range of remedies available under the law. If at that point the applicant believes that the process was unfair, or that its interests were not fairly considered, or that the Minister or his representatives breached provisions of the Act, then that is the time to raise those concerns. This Court will not deal with the matters raised here on a piecemeal basis while the process is ongoing. Multiplicity of proceedings is to be discouraged. Once the planning process has concluded and a decision has been reached, the Court will be in a better position to review the fairness of the process based on a full record.

[8] Accordingly, this judicial review is quashed with costs to the respondent on a partial indemnity basis. If the parties are unable to agree on costs, written submissions may be forwarded to the Divisional Court office by no later than June 8, 2005.

DUNNET J.

CARNWATH J.

MOLLOY J.