Court File and Parties
COURT FILE NO.: 378/07
DATE: 2008-03-28
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: TOWN OF RICHMOND HILL, Applicant - and - LIONHEART ENTERPRISES et al., Respondents
BEFORE: JUSTICE JENNINGS
COUNSEL: Roger Beaman for the Applicant, the Town of Richmond Hill Gabriel Szobel for the Respondent the Regional Municipality of York Jeff Davies for the Respondent BELG Investments Inc. Patricia Foran for the Respondents Autumnhill Investments Inc. and E. Manson Investments Limited Ira Kagan for the Respondents Bawden and Wood
HEARD: MARCH 27, 2008
ENDORSEMENT
JENNINGS J.:
[1] The Town seeks leave to appeal OMB decision/order no. 2024 dated July 17, 2007, granting a request pursuant to section 43 of the Ontario Municipal Board Act to rehear part of OMB decision/order no. 3289. The Town also seeks leave to appeal the ruling of the chair of the OMB contained in a letter dated March 12, 2007, that directed that the review motion should not include the Bawden/Wood lands.
[2] The Regional Municipality of York supports the application for leave.
[3] All counsel agree that the test for granting leave to appeal to the Divisional Court on this application is correctly set forth in paragraphs 11, 12 and 13 of Mr. Beaman’s factum, and may be summarized as follows:
- There must be a question of law sufficiently important to merit the attention of the Divisional Court, and
- There must be some reason to doubt the correctness of the Board’s decision although it is not necessary to conclude that the Board was wrong and
- As the motions judge I must show some deference to the Board’s decision in keeping with the degree and expertise of the Board.
[4] The applicant points to erroneous statements made by the Board on p.2 of its decision and submits that whilst individually the errors are not significant, cumulatively they indicate a misapprehension by the panel of the issues. I disagree. The errors, which are acknowledged by the respondents, are at best errors in description only and in my opinion do not indicate misapprehension of the evidence or the issues.
[5] The applicant submits that the Board’s reference to “developable area” rather than “critical mass” is a further example of misunderstanding the issues in that what was argued before the Board was not developable area but critical mass. I accept Mr. Davies’ argument that developable area is an integral part of what makes up critical mass and rather than being distinct from it is a key component of it. I do not find any confusion on the part of the Board.
[6] The applicants complain that the chair gave no reasons for directing that Bawden/Wood be excluded from consideration on the motion for rehearing, thereby denying the applicant natural justice. The applicant gave no reason for requesting that Bawden/Wood be included in any proposed review which would warrant the response from the chair.
[7] The Board’s finding that the original panel misunderstood the evidence of the witness Blanchaer and substituted its own opinion for that witness’s evidence does not constitute an error in law. Similarly, there is ample evidence to support the Review Board’s finding that the original panel misconstrued and misapplied the evidence of the witness Grimes. In accepting the evidence of the witness Simpson over that of the witness Grimes, having misunderstood the evidence of Grimes, the original panel fell into clear error.
[8] The applicant has not met the test for success on this motion for leave to appeal, and the motion is dismissed. If counsel are unable to agree on costs, brief written submissions not to exceed 3 pages may be filed by April 30, 2008.
RELEASED:
JENNINGS J.