Court File and Parties

COURT FILE NO.: 142/08 [Toronto]

DATE: 20080717

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: THE SUMMIT GOLF & COUNTRY CLUB, Appellant (Moving Party)

• and -

THE CORPORATION OF THE REGION OF YORK and THE ONTARIO MUNICIPAL BOARD, Responding Parties

BEFORE: Justice Lax

COUNSEL: N. Jane Pepino, C.M., Q.C., LL.D. and Patrick J. Harrington, for the Moving Party, The Summit Golf & Country Club

Barnet Kussner, for the Responding Party, The Corporation of the Region of York

HEARD: July 15, 2008

E N D O R S E M E N T

LAX J.

[1] This motion for leave to appeal arises out of an application made by Summit Golf & Country Club in November 2005 to the Region of York for a tree removal permit to facilitate a redesign of parts of a private golf course. The redesign was intended to avoid future incompatibilities with planned road widening in proximity to the golf course and potential liability concerns relating to errant golf balls.

[2] In 2006 and into the late spring of 2007, Summit engaged in consultations with the Region, the Town of Richmond Hill, and others in order to arrive at a mutually acceptable tree removal and replacement plan. The Region ultimately refused Summit’s permit application on June 21, 2007. Summit then appealed the refusal to the Ontario Municipal Board pursuant to s. 136(1) of the Municipal Act, 2001, but effective January 1, 2007, the right of appeal which had been conferred by the Municipal Act was repealed by legislative amendment to that statute.

[3] The Board determined that as the statutory right of appeal did not survive the repeal of s. 136(1) of the Municipal Act, it did not have the jurisdiction to entertain the appeal. In particular, it found that Summit’s appeal rights under former s. 136(1) had not vested prior to the repeal of this section and that neither section 51 of the Legislation Act nor the common law presumption against interference with vested rights was of assistance to Summit in the circumstances of this case.

[4] Summit seeks leave to appeal this decision. It submits that the Board erred in law in failing to recognize that a tree permit applicant was vested with a right of appeal upon filing a complete application and that this issue is of sufficient importance to warrant the attention of the Divisional Court.

[5] Leave to appeal may be granted on a question of law. The appropriate standard of review is correctness. I find no good reason to doubt the correctness of the Board’s decision on a point of law. The Board’s decision is consistent with the recent decision of this Court in Niagara Escarpment Commission v. Paletta International Corporation (2007), 229 O.A.C. (Div. Ct.) (leave to appeal refused, April 25, 2008 (C.A.)) and with established Supreme Court of Canada jurisprudence dealing with vested rights: R. v. Puskas; R. v. Chatwell, [1998] S.C.J. No. 51; Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.); affirmed, 1994 47 (SCC), [1994] 3 S.C.R. 1100.

[6] The Board’s decision is also consistent with other appellate authority to which the Board made reference in its decision, including Erin Dancer Holdings Corp. v. Richmond Hill (1996), O.J. No. 5118 (Div. Ct.), reversed (1998) 1998 1855 (ON CA), O.J. No. 2079 (C.A.); Gustavson Drilling (1964) Ltd. v. Canada (Minister of Revenue), [1977] 1 S.C.R. 271 and Director of Public Works v. Ho Po Sang, [1961] 2 All E.R. 721 (P.C.).

[7] The Board correctly found that Summit had no vested right to an appeal as of the effective date of the repeal of section 136. The mere possibility of availing itself of a right of appeal is not sufficient to preserve the right thereafter: Dikranian v. Quebec (Attorney General), 2005 SCC 73, [2005] 3 S.C.R. 530. It accepted the Region’s position that the appeal hearing to which Summit asserted a vested right is not an end in itself – rather, it is a means by which it hoped to achieve its ultimate goal of obtaining the tree removal permit, thereby creating merely a hope or expectation, as in Ho Po Sang and Paletta.

[8] Prior to its repeal, section 136(1) of the Municipal Act conferred three separate rights of appeal. The two that are relevant include an appeal from a non-decision under subsection 136(1)(b) and an appeal from a refusal under subsection 136(1)(a). An appeal from a non-decision could have been exercised any time after 45 days had elapsed from the filing of the application. Summit did not file a so-called “friendly appeal” to preserve this right, although it was represented by experienced counsel and was aware of this practice. Once a decision had in fact been rendered, it nullified any right to appeal from a non-decision.

[9] Summit contends that from the time it first filed its application, it had a vested right to an appeal from a refusal even before an actual decision to refuse had been rendered. The Board correctly determined that there is nothing within section 136(1) to support that contention as the right to appeal does not arise unless and until there is an actual refusal that is capable of being appealed from. Neither section 51 of the Legislation Act nor the common law presumption against interference with vested rights which the Legislation Act codifies is of assistance to Summit in the circumstances of this case. The right of appeal that Summit purported to exercise was an appeal from Regional Council’s refusal to approve a permit. That right did not come into existence until after the actual refusal had taken place on June 21, 2007, well after the repeal of section 136. It could not therefore be a “right, privilege, obligation or liability that came into existence under the repealed or revoked Act or regulation” as provided in subsection 51(1)(b) of the Legislation Act. The Board correctly determined this.

[10] The Legislature enacted no transitional provisions with respect to the repeal of section 136, although it did enact transitional provisions in respect of rights that existed under other sections of the Municipal Act which were amended or repealed concurrently with the repeal of section 136. The reasonable inference is that the Legislature turned its mind to this and intended the new legislation to have immediate effect and apply to all appeal rights that had not crystallized or had not yet been exercised. The Board was entitled to draw this inference.

[11] The practical result of the Board’s decision is that the legislative repeal of section 136 applies to tree removal applications filed after January 1, 2007 and applications filed before that date where no decision had yet been made and no appeal had yet been filed. Summit asserted at the Board hearing that the pool of potential future appellants is quite small. Counsel for the Region advised the Court that he was aware of only one other situation where this may arise. Therefore, even if Summit had been able to satisfy me that there is reason to doubt the correctness of the Board’s decision, it has no broad implications for the development of the law or the administration of justice so as to warrant the attention of the Divisional Court.

[12] The motion for leave to appeal is dismissed with costs. If the parties are unable to agree on costs, they may make brief written submissions within 30 days of the release of these reasons.

LAX J.

DATE: July 17, 2008