SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Radial Investments Limited
v.
Dunpar Developments Inc. et al.
BEFORE: Mr. Justice Ferrier
COUNSEL: Peter-Paul E. DuVernet for the moving party Radial Investments Limited.
Alan B. Dryer and Adam J. Brown for Dunpar Developments Inc.
Michael E. Minkowski for Corporation of The City of Mississauga.
HEARD: January 30, 2008
E N D O R S E M E N T
1Counsel for the Municipality took no position.
2On this application, leave should be granted where the court is satisfied that:
(a) there is a point of law of sufficient importance to meit the attention of the Divisional Court; and
(b) there is some reason to doubt the correctness of the Board's decision.
Mod Aire Homes Ltd. v. Town of Bradford (1990, 1990 6990 (ON SC), 72 O.R. (2nd) 683 (Div. Ct.)
Proudfoot Motels Ltd. v. Ontario (Municipal Board) (Div. Ct.), [1996] O.J. No. 2126
3The question of law need not be of general importance but can be a question of importance only to the litigants. The point of law should be considered in relation to the context and the Board's overall decision and its effect thereon.
Proudfoot Motels Ltd. v. Ontario (Municipal Board), supra
Blue Mountains (Town) v. Canadian Development Management Corp., [2002] O.J. No. 2497 (Div. Ct.)
4Clearly, an alleged breach of the Board's rules is a question of law, as is the interpretation of a statutory provision.
5On the question of jurisdiction, the Board stated the issue correctly:
The issue before the board is whether it can reasonably impose conditions on a private developer seeking to develop its private lands, in order to benefit another developer's future development of its lands. (Emphasis added)
6The Board held it could not, noting that no cases heretofore have held to the contrary.
7In reference to s.51 of the Planning Act, R.S.O. 1990, c.P.13, I do not consider the general preamble words, in s.(24), "regard should be had … to the convenience … and welfare of the present and future inhabitants of the municipality", to be criteria so broad as to found a basis for jurisdiction in the context of the circumstances in the case at bar.
8Subsection (c) of s.(24) does not apply as there is no adjacent plan of subdivision for the Radial lands. As to s-s.(e), as the Board noted, the Radial lands do have access to Burnhamthorpe Road.
9No other subsections of s.(24) apply.
10Concerning conditions which may be imposed to the approval of a plan of subdivision, they must be reasonable in the opinion of the Board: s.(25).
11In this regard, the conditions must be reasonable, "having regard to the nature of the development proposed for the subdivision", not the adjacent lands. (Emphasis added)
12None of the specific conditions set out in s.(25) are applicable here. The general requirement of reasonableness as above noted, is fundamental.
13The Board held that the imposition of conditions on one private landowner to provide guarantees or assurances to another private landowner for future development of its lands is both unreasonable and without planning justification.
14Radial cites several cases in support of its position that conditions such as those sought here can be imposed and conditions benefiting the adjacent landowner have been imposed in past cases.
15All of those cases are clearly distinguishable for the reasons articulated by Dunpar in its factum: para.38.
16In conclusion, I am not of the view that there is good reason to doubt the correctness of the Board's decision concerning jurisdiction. On the contrary, I am of the view that the Board's decision is correct.
17On the question of the Board having breached its own rules, I find no merit in the applicant's position.
18When the applicant sought to introduce its evidence to support its claim for the conditions it sought to achieve, the respondent objected on the ground of lack of jurisdiction in the Board to impose such conditions. The Board agreed.
19The Board either did or did not have jurisdiction. If it did not have jurisdiction, procedural correctness could not have bestowed jurisdiction in the Board. Notwithstanding any procedural defects, if jurisdiction did not exist, it would have been wrong to proceed to deal with the relief being sought by Radial because of lack of compliance by Dunpar with the procedural rules.
20Accordingly, the application for leave is dismissed.
21One-page written submissions on costs to be submitted within 7 days.
Ferrier J.
Released: February 5, 2008