COURT FILE NO.: 1572/06

DATE: 2006-05-24

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

B E T W E E N:

BILL BROOKS AND POWER WORKERS’ UNION, CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 1000

John Monger, for the Applicants

Applicants

• and -

TOWNSHIP OF ST. CLAIR AND GREENFIELD ENERGY CENTRE L.P.

Respondents

Patrick Moran, for the Respondent

Greenfield Energy Centre L.P.

Robert Murray, for the Respondent Township of St. Clair

HEARD: May 19, 2006 at London

HEENEY J.:

[1] The Respondent Greenfield Energy Centre L.P. (“Greenfield”) was the successful candidate selected by the Ministry of Energy to construct a 1005 megawatt gas-fired generating station near Sarnia. This project is part of the Ministry’s “Coal Replacement Plan”, the object of which is to replace the Province’s coal-fired power plants with “green” sources of electricity. Construction of the new plant would enable the nearby coal-fired Lambton Generating Station to be closed.

[2] The plant is to be constructed on land owned by Terra International Inc. (“Terra”), where it currently operates a fertilizer plant. The land on which the plant is to be constructed is to be leased by Greenfield for a period of 40 years. Because the length of the lease is greater than 21 years, and because Terra will continue to own abutting lands and will have to give easements over its lands for water supply and discharge, it was necessary to obtain the consent of the local Committee of Adjustment under s. 50(3)(f) of the Planning Act, R.S.O. 1990, c. P.13 (“the Act”).

[3] The Applicants oppose the project because closing the Lambton plant will result in the loss of between 400 and 500 jobs, while the new plant (together with another similar facility to be constructed) will employ less than 50 people. Accordingly, they opposed the granting of the consents required under the Act as a means of stopping construction of the new plant, which would, in turn, stop or delay the closure of the Lambton plant.

[4] The Committee of Adjustment granted the consents requested. The Applicants appealed to the Ontario Municipal Board. On February 16, 2006, the OMB dismissed the appeal without a hearing. The Board ruled that the Applicant’s grounds for appeal did not disclose any apparent land use planning ground upon which consent could be refused.

[5] The Applicants now seek leave to appeal that decision to the Divisional Court.

The Legislation:

[6] Section 50(3) of the Act prevents a landowner from leasing or otherwise granting an interest in land for a period of more than 21 years, while retaining ownership of any abutting land, unless a consent to the transaction is obtained from the Committee of Adjustment.

[7] Section 53 of the Act deals with the granting of consents. Subsection (12) prescribes the matters to be considered in determining whether a consent should be given, and reads as follows:

Powers

(12) A council or the Minister in determining whether a provisional consent is to be given shall have regard to the matters under subsection 51 (24) and has the same powers as the approval authority has under subsection 51 (25) with respect to the approval of a plan of subdivision and subsections 51 (26) and (27) and section 51.1 apply with necessary modifications to the granting of a provisional consent.

[8] Thus, the decision-making body is directed to consider the same matters as would be considered in determining whether a draft plan of subdivision should be approved. Those criteria are set out in s. 51(24), which reads as follows:

Criteria

(24) In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;

(b) whether the proposed subdivision is premature or in the public interest;

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

(d) the suitability of the land for the purposes for which it is to be subdivided;

(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;

(f) the dimensions and shapes of the proposed lots;

(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;

(h) conservation of natural resources and flood control;

(i) the adequacy of utilities and municipal services;

(j) the adequacy of school sites;

(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes; and

(l) the physical layout of the plan having regard to energy conservation.

[9] Since ss. 51(24)(a) mandates a consideration of matters of provincial interest as set out in s. 2 of the Act, it is necessary to reproduce that section as well:

2. The Minister, the council of a municipality, a local board, a planning board and the Municipal Board, in carrying out their responsibilities under this Act, shall have regard to, among other matters, matters of provincial interest such as,

(a) the protection of ecological systems, including natural areas, features and functions;

(b) the protection of the agricultural resources of the Province;

(c) the conservation and management of natural resources and the mineral resource base;

(d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest;

(e) the supply, efficient use and conservation of energy and water;

(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;

(g) the minimization of waste;

(h) the orderly development of safe and healthy communities;

(h.1) the accessibility for persons with disabilities to all facilities, services and matters to which this Act applies;

(i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities;

(j) the adequate provision of a full range of housing;

(k) the adequate provision of employment opportunities;

(l) the protection of the financial and economic well-being of the Province and its municipalities;

(m) the co-ordination of planning activities of public bodies;

(n) the resolution of planning conflicts involving public and private interests;

(o) the protection of public health and safety;

(p) the appropriate location of growth and development.

The Decision of the Ontario Municipal Board:

[10] When the appeal of the decision of the Committee of Adjustments came before the OMB, the Respondents brought a motion for the appeal to be dismissed without holding a hearing. Jurisdiction to make such an order is found in s. 53(31), the applicable part of which reads as follows:

Dismissal without hearing

(31) Despite the Statutory Powers Procedure Act and subsection (30), the Municipal Board may dismiss an appeal without holding a hearing, on its own motion or on the motion of any party, if,

(a) it is of the opinion that,

(i) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Board could give or refuse to give the provisional consent or could determine the question as to the condition appealed to it,

(ii) the appeal is not made in good faith or is frivolous or vexatious, or

(iii) the appeal is made only for the purpose of delay;

[11] In thorough and well-drafted written reasons, Member E. Pendergrast granted the Respondent’s motion and dismissed the appeal without a hearing.

[12] She based her decision on the first test, that the grounds of appeal presented by the Applicants did not disclose any apparent land use planning ground upon which the Board could give or refuse to give the provisional consent. After reviewing the concerns raised by the Applicants as to the anticipated loss of employment and related concerns, she stated the following at pg. 13 of her decision:

The grounds must be ones related to the provisional consent(s) before the Board. In the instance of the PWU and SEP appeals, the Board finds that the planning grounds raised in the appeals are not related to the consents but are instead related to a specific use permitted by the Zoning By-law, an electrical generation facility, and a specific user, the specific facility proposed to be constructed and operated by GEC.

[13] She noted that her conclusion was consistent with Board jurisprudence, and in particular Duggan v. Durham (Regional Municipality), [1999] O.M.B.D. No. 485, where the appellant’s concern was with the use of the lands as a golf course, which was a permitted use under the applicable zoning regulations. In dismissing the appeal without a hearing, the Board in that case held that the “use of the lands has been fully determined and is not a matter before this Board”.

[14] In the case at bar, the Board found that the thrust of the Applicant’s objection was that the subject property was going to be used as a gas-fired power plant (which use would lead to the closure of the coal-fired power plant). This was ruled not to be a relevant or tenable ground upon which to oppose the granting of a consent, since such use was expressly permitted both by the Official Plan and by the applicable zoning by-laws.

[15] This reasoning is reflected in her consideration of the second part of the test, which is whether the appeal is not made in good faith or is frivolous or vexatious. In concluding that this test was not met by the moving parties, she stated the following at pg. 16:

The reasons for the appeals address serious issues that, in the context of an application to permit the use, might constitute relevant planning grounds for an appeal, notwithstanding that the use is the subject of other proceedings.

[16] In other words, the grounds raised by the Appellants would have been relevant planning grounds if, for example, the Respondents were applying for a rezoning to permit a use not already permitted under the zoning by-laws. The fact that the grounds were not relevant to the particular consent issue before the Board did not make them frivolous and vexatious.

[17] For similar reasons, she concluded that the third part of the test had not been met either. However, since only one of the three criteria needed to be met in order to justify the dismissal of the appeal without a hearing, the motion was granted.

The Test for Leave to Appeal:

[18] Both parties are agreed that, for leave to be granted, this court must be satisfied that:

(a) there is some reason to doubt the correctness of the Board Order; and

(b) the appeal involves a point of law of sufficient importance to merit the attention of the Divisional Court: Re Brennan and Minister of Municipal Affairs (1987), 1987 4228 (ON SC), 59 O.R. (2d) 526 (Div. Ct.).

Analysis:

[19] Mr. Monger, for the Applicants, argued that the devastating economic consequences of building the gas-fired power plant and thereby causing the closure of the coal-fired plant fit within many of the statutory criteria that the Board is required to “have regard to” in considering whether consent should or should not be granted. For example, the anticipated job losses and the economic fallout flowing therefrom relates to the “welfare of the present and future inhabitants of the municipality” mentioned in the preamble to ss. 51(24), as well as to whether the project is “in the public interest” as stated in ss. 51(24)(b). As to the matters of “provincial interest” enumerated s. 2 of the Act, it falls within “the adequate provision of employment opportunities” under s. 2(k) and “the protection of the financial and economic well-being of the Province and its municipalities” under s. 2(l).

[20] The Board, Mr. Monger argued, dismissed the Applicant’s concerns regarding the future use of the property for the simple reason that such use was expressly permitted by the Official Plan and zoning regulations. In so doing, the Board effectively rewrote the legislation, and dismissed from consideration matters which the Act specifically required it to consider. This, he argues, constitutes a misinterpretation of the Act, and an error of law.

[21] Mr. Moran, for Greenfield, countered that the Board did “have regard to” the evidence as to the economic consequences of the project, in that this evidence was expressly considered in the Board’s reasons, but chose to give it no weight because it was not relevant to the planning issues before the Board. The fact that the property was going to be used as a power plant was not a relevant issue before the Board, because such use was already expressly permitted. The only matters at issue were any concerns that arose from the granting of the consents themselves. In other words, all that could be relevant would be concerns flowing from the fact that the lease in question was going to be in effect for 40 years instead of 21 years less a day.

[22] In this regard, it is significant that if Terra itself was building the power plant, instead of Greenfield, no consents would have been required at all. Similarly, if Terra did not own any lands abutting the lands to be leased, and no easements over their land were required, Greenfield could build the power plant without consents and despite the opposition of the Applicants. Finally, if Greenfield’s lease was for 20 years instead of 40, consent would not have been required and this entire proceeding would never have occurred.

[23] I agree with Mr. Moran that the Act merely requires the Board to “have regard to” the criteria enumerated in the Act, and that the Board did so in this case. Having turned its mind to the grounds raised, the Board must then consider the nature of the application before it and make a determination as to which of those grounds are relevant and applicable to the issues raised by the application. This process is reflected in the authority relied on by the Applicants, A Practical Guide to the Ontario Municipal Board (Toronto: Butterworths, 2003) by Bruce W. Krushelnicki, Ph.D., where the author discusses how provincial policy statements (“PPS”) issued under s. 3 of the Act are to be considered by the Board. He says the following at pg. 111:

In light of all this, the obligation to “have regard to” the PPS should mean that the policy, if it is relevant and applicable in the circumstances of the case before the Board, should be given weight and should play some meaningful role in the decision. [emphasis added]

[24] The jurisdiction of the Board to consider the grounds raised and then make a determination as to their relevance to the planning issues under consideration is also reflected in s. 53(31), which is the section that empowers the Board to dismiss an appeal without a hearing. By empowering the Board to determine whether there is any apparent land use planning ground upon which consent could be given or refused, the Board is expressly called upon to vet the grounds raised to determine their relevance to the matters before it.

[25] In my view, that is precisely what the Board did in this case. The Board was correct in observing that the job losses flowing from the construction of the gas-fired plant might be relevant if the use of the property for that purpose was at issue before the Board. Since, however, such use was expressly permitted, any objections to the use of the property as a power plant had no relevance. Since the evidence raised no planning concerns with respect to the consents themselves, the Board properly dismissed the appeal without a hearing.

[26] There is an additional, but very compelling, reason for concluding that the Board was correct in its decision. The job losses predicted by the Applicants will not, as a matter of causation, flow from the opening of the gas-fired power plant, but rather from the closing of the coal-fired Lambton power plant. That closure will result not from the giving or withholding of consent in this case, but from the implementation of the Province’s Coal Replacement Plan. That decision to close the Lambton plant, and the economic consequences that flow from it, relate to a parcel of land other than the parcel under consideration in these proceedings and are, as a matter of logic, irrelevant.

[27] That is not to say that the Court is unsympathetic to the concerns of the Applicants. It is simply to point out that the real thrust of the Applicants’ objections has nothing to do with whether a consent should be given to permit a long-term lease on this parcel of property. Rather, the Applicants object to the implementation of the Province’s policy on closing coal-fired power plants. It is, ultimately, a political objection, and it is in the political arena where it should be raised and dealt with.

[28] I am not, therefore, persuaded that there is good reason to doubt the correctness of the decision of the Board. On the contrary, I am satisfied that the decision is correct.

[29] Given my conclusion on the first ground, it is unnecessary to decide whether the matter is of sufficient importance that it merits the attention of the Divisional Court.

[30] Leave to appeal is denied.

[31] If the parties wish to make submissions on costs, I will receive brief written submissions within 30 days.

Mr. Justice T. A. Heeney

DATE: May 24, 2006