COURT FILE NO.: DC-07-00000092-00ML

DATE: 20070705

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS J.

B E T W E E N:

TOWN OF OAKVILLE Appellant

• and -

BIRCHGROVE ESTATES INC. Respondent

Counsel: Ian James Lord and Constance Lanteigne, for the Appellant Alan Lenczner Q.C., Monique Jilesen, and Lynda Townsend, for the Respondent

HEARD: June 20, 2007

Jennings J.

REASONS FOR JUDGMENT

OVERVIEW

1This a motion for leave to appeal Decision/Order No. 0337 (the “Motions Decision”) of the Ontario Municipal Board (the “Board”), and Decision/Order No: 0338 of the Board (“OHA Appeals Decision”), both issued February 7, 2007.

2In 2005, the legislature amended the Ontario Heritage Act (“OHA”) and issued a Provincial Policy Statement, 2005 (“PPS”) with the intention of strengthening the powers of municipalities to protect designated heritage resources, and amongst other things, giving to municipalities the power to refuse to permit demolition or relocation of designated heritage buildings.

3A provision of the amendment to the OHA permitted the Board to appoint a member of the Conservation Review Board (“CRB”) to join the panel of the Board for appeals concerning heritage buildings. The appeal of the Motions Decision is from an order of the Board purporting to rescind such an appointment.

4By agreement reached at a pre-hearing conference, appeals to the Board under OHA were to be heard together by the Board as Phase One, and appeals under The Planning Act were to be heard subsequently as Phase Two. Phase One has been completed. Phase Two has yet to be scheduled. The OHA appeal is from the order in the Phase One hearing.

5I will deal with the motion for leave to appeal each order separately.

6The parties are agreed that on a motion for leave to appeal from a decision of the Board, leave should not be granted unless the proposed appeal raises a point of law of sufficient importance to warrant the attention of the full panel of this Court, and there is some reason to doubt the correctness of the Board’s decision.

MOTIONS DECISION

7The relevant statutory provisions are as follows:

Ontario Heritage Act

Section 25.1(1) Despite section 5 of the Ontario Municipal Board Act, the Board may appoint a member of the Review Board to sit on a panel of the Board conducting an appeal under this Act for the duration of the appeal.

Section 68.1(1) Despite section 43 of the Ontario Municipal Board Act, the Board, (emphasis added) shall not,

(a) rehear any application made to it this under Act, subject to subsection (2); or

(b) review, rescind, change, alter or vary any decision, approval or order made by it under this Act.

Subsection (2) does not apply to the issues raised in this application.

Ontario Municipal Board Act

Section 43 The Board may re-hear any application before deciding it or may review, rescind, change, alter or vary any decision, approval order made by it.

8At a pre-hearing conference held on May 5, 2006, Member D.R. Granger, ordered that “The Board will cross appoint a Conservation Review Board member to join the panel of the Board for the hearing of the Ontario Heritage Act appeals”.

9Subsequent to that order and prior to the commencement of the scheduled Phase One hearing, the parties were advised by the Board chair that the CRB was unable to supply a member of its tribunal as ordered by the Board. The Town thereupon brought a motion to adjourn the Phase One hearing for four months so that it could address the cross-appointment issue with various levels of government to attempt to find a CRB member able to accept the cross-appointment.

10On the return of that motion, Member Schiller, on her own motion, purported to exercise the jurisdiction under section 43 of the OMB Act to vary the order of Member Granger by rescinding the order to cross-appoint a CRB member to join the panel of the Board for the hearing. She acknowledged that that relief had not been requested by any party, which would seem by the Board’s rules to be a prerequisite for assuming jurisdiction under section 43 of the OMB Act. Regardless, she made no reference to section 68.1(1) of the OHA. I am advised by counsel that, not anticipating Member Schiller’s actions, they did not bring that section to her attention.

11Member Schiller found that the Board that issued the decision for the cross-appointment “acted outside the panel’s jurisdiction by usurping the statutorily protected administrative discretion of the Chair of the Ontario Municipal Board”. There does not appear to have been any evidentiary basis for that finding. It would in my opinion appear to be directly contrary to the plain language of section 25.1 of the OHA.

12Member Schiller appeared to draw comfort from a memorandum of understanding entered into by the Chairs of each of the Board and the CRB providing for consultation on a cross-appointment, but I seriously doubt that that private document can modify the provisions of the Ontario Heritage Act to which I have referred.

13The practical effect of Member Schiller’s decision is to allow the Chair of the CRB to subvert the intention of the Legislature as expressed in section 25.1(1) of the OHA.

14Accordingly, I have clear reason to doubt the correctness of Member Schiller’s decision. I was told by counsel that this decision was the first hearing on the merits where the Board’s discretion to appoint a member of the CRB to hear a heritage matter has been exercised. This is obviously a matter of significance to the implementation of the legislatives policy regarding the preservation and conservation of the heritage of the citizens of this Province. The Town had every reason to expect that the order creating a two person appeal, one of whom would be an expert in heritage conservation, would be effective. For those reasons, this is a matter of importance that warrants consideration by the full panel.

Ontario Heritage Act Appeals Decision

This aspect of the motion for leave to appeal concerned a decision of the Board which directed the Town of Oakville to permit the relocation of two heritage buildings. The basic submission of the Town is that the Board ignored the evidence of the expert witness called by the Town that a basic heritage principle was that heritage buildings should not be moved except as a last resort. Each of the Town and the Respondent, as the first on its list of issues to be determined by the Board, listed the question as to whether it was appropriate to “remove” designated heritage buildings.

15The Town submitted that the Board converted the issue of whether the buildings should be allowed to be moved into whether if the buildings were moved they can be preserved.

16Member Schiller gave very extensive and careful reasons in support of her conclusion that the principle objective of the PPS, conservation, could be achieved if these buildings were permitted to be moved a short distance.

17Member Schiller reviewed the appropriate legislation and publications from a number of bodies and agencies concerned with the conservation and preservation. Although she appears not to have accepted the evidence of the Town’s expert that removal should not be permitted, that was a matter solely within her jurisdiction and she was entitled to reject that evidence. In doing so, she committed no error in law.

18From my reading of her decision, she correctly focused on the appropriate issue, that of conservation.

CONCLUSION

19Being unable to find any error in law that arises, leave to appeal on the OHA issues dealt with in Phase One is denied.

20For the reasons given leave to appeal the motion decision is granted.

COSTS

21Costs are reserved to the panel hearing the appeal, with my observation that the time required to argue leave to appeal from each order was roughly equal.