COURT FILE NO.: DC-07-65-ML
Brampton
20080312
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
Sandringham/Wellington Community Management Inc. and The Corporation of the City of Brampton
Appellants
- and -
Chinguacousy Farm Limited and Royalwest Developments Inc. et al.
Respondents
Scott Snider and Shelley Kaufman for the Moving Party Sandringham/Wellington
Stephen Garrod for the Moving Party City of Brampton
Jeffrey L. Davies, Mark R. Flowers and Amber Stewart for the Responding Party Chinguacousy
REASONS ON MOTION FOR LEAVE TO APPEAL
D.L. CORBETT J.
[1] Sandringham/Wellington (the “Trustee”) and the City of Brampton seek leave to appeal Decision/Order No. 2359 (the “Order”) of the Ontario Municipal Board (the “Board” or the “OMB”). In that decision, the Vice Chair of the Board, sitting alone, denied a motion by the Trustee and the City to dismiss Chinguacousy’s OMB appeal without a hearing. Thus if the Order continues, Chinguacousy’s appeal shall proceed to a hearing on the merits before a panel of the Board.
The Impugned Decision
(a) The Motion Within the Appeal
[2] The underlying OMB appeal is brought by Chingacousy in respect to (a) Brampton’s City Council’s “refusal or neglect to enact a proposed [by-law] amendment… to permit a residential development and related use” on lands including those owned by Chingacousy (the “subject lands”); (b) Brampton’s “failure… to make a decision respecting a proposed plan of subdivision on [the subject lands]; (c) Brampton’s City Council’s “refusal or neglect to enact an amendment to the Official Plan for… Brampton to amend specific provisions… in the Sandringham Wellington Secondary Plan which deal with the requirement for a cost sharing agreement among landowner[s] within [that area].”[^1]
(b) Grounds for the Motion Before the Board to Dismiss the Appeal
[3] The grounds for the Trustee’s and City’s motion before the Board were:
(1) in respect to the portion of the appeal relating to the alleged refusal or neglect to amend the Official Plan:
(a) the appeal is an abuse of process and is frivolous and vexatious; or
(b) in the alternative, the reasons set out in the Notice of Appeal do not disclose any apparent land use planning ground upon which the OMB could allow part or all of the appeal.
(2) in respect to the other grounds of the appeal, that the reasons set out in the Notice of Appeal do not disclose any apparent land use planning ground upon which the OMB could allow all or part of the appeals.
(c) Context of the Motion
[4] As noted, the subject lands are within the Sandringham/Wellington Secondary Plan Area. That area is the subject of an amendment to Brampton’s Official Plan known as Official Plan Amendment 149 (“OPA 149”). OPA 149 was approved by the Board in a decision dated May 23, 1990.
[5] OPA 149 includes policies respecting landowner cost-sharing agreements. These agreements concern the cost of providing such things as schools, park tablelands, woodlots, pedestrian underpasses, parkland and valleyland improvements, erosion controls, storm-water management facilities, and roadways and related elements.[^2] In this regard, OPA 149 provides that in respect to these matters, “the City will support reasonable cost sharing arrangements amongst benefiting landowners by using its best efforts to request reasonable repayments to landowners or landowner groups who have front-ended such costs from benefiting landowners who have not contributed to such costs.”[^3]
[6] Chinguacousy was a party to the Board proceedings in 1990.[^4]
[7] Since the Board proceedings in 1990, development has proceeded. There are two cost-sharing agreements in place, and the Trustee administers the money under those agreements. To date, over $73.6 million has been contributed to cost-sharing, of which over $67.5 million has been disbursed.[^5]
[8] Chinguacousy has sought approval of a draft plan of subdivision and an amendment to the zoning by-law in respect to a proposed development on its lands. Brampton will not approve the draft plan or amend the by-law because Chingaucousy has not signed the cost-sharing agreement, as required by OPA 149 Policy 8.2.12 and 8.2.13.
[9] Chinguacousy proposes what it calls “more reasonable and equitable cost sharing policies already in effect in other secondary plan areas in the City”. Under its proposed “more reasonable cost sharing policies”, schools, parks and woodlots would be removed from cost sharing agreements.[^6]
[10] Brampton and the Trustee argue that OPA Policies 8.2.12 and 8.2.13 were decided seventeen years ago, have been acted upon by landowners and Brampton since that time, and that it is not open to Chinguacousy to challenge these policies now, particularly since Chinguacousy was a party to the original decision. The moving parties say that these matters are res judicata, or alternatively, that the doctrine of laches operates to preclude the appeal.
[11] Chinguacousy says that there are changed circumstances that take this matter out of the operation of the principles of res judicata or laches. The legal framework for cost-sharing agreements has changed. The Development Charges Act, 1997,[^7] in the words of the Board, “was a major change in planning law in this province”.[^8] Among other things, this legislation prohibits a municipality from imposing development charges in respect to the “acquisition of land for parks”.[^9] Chinguacousy also says that the City has failed to discharge its responsibilities under OPA 149, and that this failure is a changed circumstance.
[12] Chinguacousy argues that the impugned policies are, on their face, directly contrary to the Development Charges Act, 1997. Section 59(5) of that Act provides that the section does not affect “any condition or agreement under either section 51 or 53 of the Planning Act that was in effect on November 23, 1991. The impugned policies were in effect prior to this date; there is no evidence before this court as to when cost-sharing agreements, and amendments to those agreements, were “in effect”.
The Board’s Decision
[13] The Board found that neither res judicata nor laches applies in the circumstances of this case:
The Board finds not only that the Appellant has avoided the doctrine of res judicata, but has also raised a significant land use planning issue which is worthy of the Board’s adjudicative process.[^10]
… the Board need not rule on whether the EQIA, 1997[^11] vitiates the operation of the doctrine of res judicata, having found that the enactment of the DCA, 1997 serves that purpose.[^12]
… the abdication by the City of the responsibilities envisioned for it by the Board in 1990 constitutes a significant change in circumstances relevant to the land use planning principles considered and applied by the Board in the previous hearing and decision. Such a change in circumstances allows the Appellant to avoid the application of the doctrine of res judicata.[^13]
The Board finds in the circumstances of this case, that the doctrine of laches does not apply.[^14]
[14] The Board concluded as follows:
The Board is satisfied that the DCA, 1997 is a change in the planning regime relevant to the Board’s consideration of the official plan appeal in this case. Having made this finding on this motion, this panel of the Board makes no finding on the merits of the appeal. Whether the operation of the DCA, 1997 should result in the replacement of Policies 8.2.12 and 8.2.13 with the proposed Policy… is a matter for the Board, having heard all relevant evidence, in a full hearing, to consider.[^15]
[15] On this basis, the Board ordered as follows:
The motion to dismiss the appeals without a hearing is denied. A prehearing date will be set at which time the Board expects to review a draft issues list and to issue a procedural order.[^16]
[16] On the face of the reasons, the Board has finally determined the issues of res judicata and laches in favour of Chinguacousy. If this is so, the decision would operate as a bar to the Trustee and the City raising these issues on the hearing of the appeal. And if so, there would be good reason to grant leave to appeal at this stage.
[17] However, it is the decision, and not the reasons for the decision, that are the subject-matter of the proposed appeal to the Divisional Court. The reasons of the Board, to the extent that they go beyond what was necessary to determine the question before the Board, are obiter dicta and do not bind the full panel of the Board hearing the underlying appeal.
[18] Had I concluded otherwise, I would have granted leave to appeal on the basis that (a) it appears that the Board acted without jurisdiction in disposing summarily of a defence to an appeal without a hearing; and (b) this issue of jurisdiction is a matter of general importance meriting consideration on appeal. To be clear, I would have voiced no view on the merits, or lack thereof, of the Board’s conclusions that res judicata and laches do not apply. In my opinion, those are matters that remain for consideration by a full panel of the Board, after a hearing of the appeal.
Analysis
(a) Jurisdiction of this Court
[19] Section 96(1) of the Ontario Municipal Board Act[^17] provides that, “[s]ubject to the provisions of Part IV [of the Act], an appeal lies from the Board to the Divisional Court, with leave of the Divisional Court, on a question of law.”
[20] The test for granting leave under s.96(1) is:
(i) whether there is some reason to doubt the correctness of the Board’s decision with respect to the question of law raised; and
(ii) whether the question of law raised is of sufficient importance to merit the attention of the Divisional Court.[^18]
[21] In respect to the first branch of this test, the question is not whether this court concludes that the Board erred in law, but rather whether the correctness of the decision “is open to serious debate”.[^19]
[22] On the other hand, in assessing whether the merits of the Board’s decision “is open to serious debate”, the court should bear in mind the high degree of deference afforded to the Board,[^20] recognizing its independence and expertise.
[23] Also, in determining whether the correctness of the order is open to serious debate, the court must be mindful that, on appeal, it is the decision itself that is in issue, and not particular passages within the reasons.[^21] The court hearing a leave application should, similarly, avoid a “piecemeal approach”, and instead should consider the totality of the decision.[^22]
(b) Characterizing the Issues
[24] The appellants focus on the substantive content of the Board’s reasons. The respondents say that the Order is interlocutory. This distinction is crucial.
[25] Procedural rulings by the Board are entitled to a high degree of deference.
[The OMB], as an administrative tribunal exercising a statutory power of authority, maintains absolute jurisdiction and control over its own procedure. It has the power to determine its own procedures and practices and to make procedural orders….
The authorities are clear that courts… should be reluctant to interfere with procedural orders within a tribunal’s jurisdiction….[^23]
In carrying out its mandated duties, the OMB has exclusive jurisdiction to determine the scope of the issues before it, the procedures to be followed, and the appropriate policy choices to be made and applied in order to arrive at sound planning decisions.[^24]
Leave to appeal an interlocutory order of the Board would be granted very rarely indeed.
[26] The difficulty, in this case, is that the Board has made an interlocutory order, but has couched it in reasons that imply “final” determinations of important issues on appeal.
[27] The relevant portion of section 17(45) of the Planning Act[^25] provides as follows:
17(45) Despite the Statutory Powers Procedure Act and subsection (44), the Municipal Board may dismiss all or part of 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 plan or part of the plan that is the subject of the appeal could be approved or refused by the Board,
(ii) the appeal is not made in good faith or is frivolous or vexatious….[^26]
On a plain reading of this provision, the Board can dismiss “all or part” of an appeal. The provision does not accord the Board the jurisdiction to grant “all or part of an appeal” without a hearing. Nor does it accord the Board the power to dismiss defences to an appeal without a hearing.
[28] The question before the Board on the motion was whether the issues in the appeal are sufficiently meritorious to warrant the Board’s adjudicative process. Since the Board determined that the appeal should proceed, it now remains for a panel of the Board to determine the merits of the appeal, including the defences raised by the Trustee and Brampton, after a full hearing.
[29] This, indeed, is the effect of the Board’s order: it dismisses the motion to dismiss the appeal. It directs a conference subsequently (which has not yet been conducted) to address procedural issues concerning the appeal. In its order, the Board does not dismiss the Trustee’s and Brampton’s defence on the appeal on the basis of res judicata and laches.
Interlocutory and Final Orders
[30] In my view, the Board went further than it had to in its reasons to explain its ruling. The necessary holding, to support the ruling, was that the issues of res judicata and laches are worthy of the adjudicative process in this case. Indeed, these issues are complex in this case, both factually and legally: there is certainly no error in the Board’s determination that the appeal raises issues worthy of a hearing.
[31] If the Board had intended to decide, on a final basis, that the defences of res judicata and laches are not worthy of the adjudicative process, in that there is no merit to these defences, then the Board would have had to have done three things that it did not do:
(a) articulate the basis of its jurisdiction to dismiss a defence to an appeal without a hearing;
(b) enunciate a proper test for the exercise of this jurisdiction; and
(c) make an order in accordance with its findings.
[32] The Board did none of these things.
[33] However, as I said at the outset, it is the Board’s decision, and not its reasons, that is the subject-matter of the proposed appeal. The fact that the reasons went further than was necessary to justify the decision does not form a basis for an appeal. The decision goes no further than to dismiss the motion before the Board.
[34] I would note, gently, that it is for this reason that it is especially important on interlocutory motions that a tribunal’s reasons not go beyond that which is necessary to dispose of the matter before the tribunal at that time. It is tempting, of course, after full argument, to go further and decide related issues that have been argued. But to do so can create confusion and lead to multiple appeals.
[35] It now remains for the Board to consider and decide Chinguacousy’s appeal. In so doing, the Board will have to consider and decide all of the issues on the underlying appeal: the Board’s interlocutory decision does not finally determine the questions of res judicata, laches or related questions of issue estoppel.
[36] In so concluding, I wish to be clear that I am not deciding that it is beyond the authority of the Board to dispense with an unmeritorious defence prior to a full hearing before the Board. The issue on the motion before me relates to what the Board actually did in this case, and not what it might have done, or might hereafter do. And naturally, if the Board does determine, on a final basis, that the any of the substantive defences to the appeal should be dismissed, a motion for leave to appeal that decision would be available at that time. Presumably such a decision would articulate the basis on which the Board is exercising that jurisdiction and the test applied in coming to the decision summarily, without a full hearing.
[37] Since I have been critical of some of the language in which the Board’s decision is couched, I think it also appropriate to note that the Board’s reasons were thorough, thoughtful and scholarly in respect to the point being decided by the Board. My criticisms should be regarded as minor, and relate solely to the point of concern to the moving parties: that they did not want some of their substantive defences decided on a final basis on a motion where that issue was not properly before the Board.
[38] The motion for leave to appeal is dismissed. If the parties cannot agree on costs then they shall make written submissions within 21 days of release of these reasons.
_______________________ D.L. Corbett J.
Released: March 12, 2008
COURT FILE NO.: DC-07-65-ML
Brampton
DATE: 20080312
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
THE CORPORATION OF THE CITY OF BRAMPTON et al.
Moving Parties
- and –
CHINGUACOUSY FARM LIMITED et al.
Responding Parties
REASONS ON MOTION FOR LEAVE TO APPEAL
D.L. CORBETT J.
[^1]: These passages are taken from the preambles to the decision. [^2]: OPA 149, Policy 8.2.12. [^3]: OPA 149, Policy 8.2.13. [^4]: The Board found that Chinguacousy “is the same party” or “a privy” of Silver Rose Construction, which was a party in the OMB’s 1990 proceedings: Board Decision, page 3. [^5]: Board Decision, page 5. [^6]: Board Decision, page 5. [^7]: S.O. 1997. [^8]: Board Decision, page 25. [^9]: Development Charges Act, 1997, s.59(1). [^10]: Board Decision, page 25. [^11]: Education Quality Improvement Act. [^12]: Board Decision, page 26. [^13]: Board Decision, pages 27-28. [^14]: Board Decision, page 28. [^15]: Board Decision, page 26. [^16]: Board Decision, page 29. [^17]: R.S.O. 1990, c.O.28, s.96(1). [^18]: See Vaughan (City) v. Rizmi Holdings Ltd., [2003] O.J. No. 2953 (Div. Ct.). [^19]: Vaughan v. Rizmi, ibid. [^20]: See, for example, Concerned Citizens of King Township Inc. v. King (Township), [2000] CarswellOnt 5279 at paras. 8-10 (Div. Ct.). [^21]: See Carson v. Pembroke Police Service, [2007] CarswellOnt 3518 (Div. Ct.) para. 34. [^22]: See Toronto (City) v. Social Housing Coalition of Metropolitan Toronto, [1993] CarswellOnt 5200 at para. 4 (Div. Ct.). [^23]: Menkes Lakeshore Ltd. v. Toronto (City), 2007 65611 (ON SCDC), [2007] CarswellOnt 4637 (Div. Ct.), at aparas. 30-31. See also Zellers Inc. v. Royal Cobourg Centres Ltd., [2001] CarswellOnt 3362 (Div. Ct.), at para. 18; Lafarge Canada Inc. v. 1341665 Ontario Ltd., [2004] CarswellOnt 1507 (Div. Ct.), at para. 9; Clark v. Essa (Township), [2007] CarswellOnt 1987 (Div. Ct.), at para. 24. [^24]: Clergy Properties Ltd. v. Mississauga (City), [1997] CarswellOnt 5385 (Div. Ct.), at para. 11, leave to appeal refused: [1998] CarswellOnt 451 (C.A.). [^25]: R.S.O. 1990, c. P.13 [^26]: Substantially identical provisions are found in sections 34(25) and 51(53) of the Planning Act. The motion before the Board was brought under all three provisions.