COURT FILE NO.: 155/08

DATE: 20090623

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JANET WILSON, LOW and RAY JJ.

B E T W E E N:

JAMES W. McCUTCHEON, Q.C., STEPHEN & CHRISTINE SADLER, HARMEET & TAMMY SINGH, SUSAN & OWEN JONES

Appellants

• and -

WESTHILL REDEVELOPMENT COMPANY LIMITED, CORPORATION OF THE TOWN OF AURORA, TORONTO AND REGION CONSERVATION AUTHORITY and REGIONAL MUNICIPALITY OF YORK

Respondents

• and -

EARTHROOTS COALITION

Intervenor

Rodney V. Northey for the Appellants James W. McCutcheon Q.C., Stephen and Christine Sadler, Harmeet and Tammy Singh and Susan and Owen Jones

Michael J. McQuaid and John Buhlma for the Respondent Westhill Redevelopment Company Limited

Roger T. Beaman for the Respondent the Town of Aurora

Stan Floras for the Intervenor the Ontario Municipal Board

Hugh Wilkins for the Intervenor, Earthroots Coalition

HEARD AT TORONTO: May 21, 2009

THE COURT:

1This is an appeal from the interlocutory decision of the Ontario Municipal Board (OMB) dated March 26, 2008 denying the appellants’ request to consolidate and hold a single joint hearing in accordance with s. 24(2) of the Consolidated Hearings Act, R.S.O. 1990, c. C.29 (the OMB Decision).

2For the first time, Westhill in its responding factum in this appeal raised the question of whether the OMB had jurisdiction to make the order sought by the appellants. For the reasons outlined, we conclude that the matter should be remitted to the OMB to consider the new issues raised with respect to jurisdiction before proceeding with the substantive appeal.

Background facts relevant to the preliminary question of jurisdiction

3Westhill seeks approvals from the OMB to build a golf course and 75 condominium units (the Proposed Development) in an area designated as part of the Oak Ridge Moraine (the Moraine) in the Town of Aurora (the Town).

4The Proposed Development is not serviced by municipal sewers and water. A new infrastructure will be required to implement the Proposed Development including:

(1) a new privately owned and operated communal sanitary system to be implemented such that the wastewater from the clubhouse and residential community is collected, treated and safely disposed of;

(2) a new privately owned and operated communal water supply system, including source, treatment and distribution for the clubhouse and residential development; and

(3) on-site storm water management facilities for treating the runoff associated with the clubhouse, the clubhouse parking lot and the residential development.

5There are three distinct layers of approvals applicable to development: planning approvals, environmental assessment approvals, and permits and certificates for water taking and sewage works.

6Westhill has chosen to proceed simultaneously with a consolidation of the first two approvals before the OMB, but objects to consolidating the final phase with respect to the water issues.

7The appellants are the abutting landowners to the Proposed Development, and have concerns about its impact on the water system. With these concerns in mind, the Appellants sought to have any future hearings that may arise with respect to water issues as defined by the Ontario Water Resources Act, R.S.O 1990, c. O.40 (OWRA) heard by a joint board of the OMB and the Environmental Review Tribunal (the ERT) to deal comprehensively with all issues related to the Proposed Development. The OMB denied this request.

8On August 13, 2008 Justice Himel granted leave to appeal from the OMB Decision, which interpreted ss. 3 and 24(2) of the Consolidated Hearings Act. She concluded that the correctness of the OMB decision was open to very serious debate, and that the proposed appeal raised issues of public importance transcending the interests of the parties.

9The question of jurisdiction had not been argued before either the OMB or Justice Himel.

10The appellants and Westhill took the position that there were no facts in dispute, and that this court should determine the question of jurisdiction. We therefore heard argument only with respect to jurisdiction. Submissions for the substantive appeal have been deferred.

11Westhill argued that certain regulations in the Consolidated Hearings Act apply to exempt all five of the potential OWRA hearings from an order for consolidation, and therefore the OMB had no jurisdiction to make the order sought by the appellants. If Westhill is correct in its interpretation, the substantive appeal is moot.

12The Town opposes the Proposed Development.

13The appellants and the Town argue that the regulations and exemptions should be strictly construed and do not apply to the potential OWRA hearings.

The issues and the applicable legislation with respect to jurisdiction

14The parties concede that there are five potential ERT hearings that may result arising from the application of the OWRA to the Proposed Development.

15In accordance with s. 55(1) of the OWRA there are two potential assessment hearings by the ERT that may take place at the discretion of the Director with respect to each of the certificates of approval for storm water and waste management.

16There are as well three potential appeals that may be brought before the ERT pursuant to s. 100 of the OWRA from the permit to take water, the certificate of approval of storm water management, and the certificate of approval for waste management.

17In the absence of applicable exemptions, these OWRA matters would qualify for an order for a consolidated hearing pursuant to the Consolidated Hearings Act.

18Section 2 of the Consolidated Hearing Act stipulates three requirements to qualify for a consolidated hearing:

2. This Act applies in respect of an undertaking in relation to which more than one hearing is required or may be required or held by more than one tribunal under one or more of the Acts set out in the Schedule or prescribed by the regulations.

19All three of the conditions in s. 2 are met as more than one hearing is required, by more than one tribunal, engaging consideration of more than one Act.

20Westhill argues that all potential OWRA hearings are subject to exemptions, and therefore s. 2 of the Consolidated Hearing Act does not apply. The appellants argue that none of the potential OWRA hearings are exempt.

Argument 1 – Assessment hearings exempt in light of the Environmental Assessment Act

21O. Reg. 207/97, made under the OWRA, exempts applications for certificates of approval for sewage works from s. 55 of the OWRA, which gives the OWRA Director the power to require assessment hearings before the ERT on the applications. The Regulation states:

Sewage Works Subject To Approval Under The Environmental Assessment Act, O. Reg. 207/97

1. A sewage works is exempt from subsections 54 (1), (2), (3) and (10) and subsections 55 (1), (2) and (3) of the Ontario Water Resources Act if it is or forms part of an undertaking that,

(a) is subject to section 5 of the Environmental Assessment Act; or

(b) is exempt from section 5 of the Environmental Assessment Act under section 15.1 of that Act.

22Westhill argues that regulation s. 1(b) of the O. Reg. 207/97 of the OWRA applies to the Proposed Development. According to Westhill, because the Proposed Development is subject to a class environmental assessment, it falls within s. 15.1 of the Environmental Assessment Act, R.S.O. 1990, c. E.18:

15.1 (1) Section 5 does not apply with respect to a proponent who proceeds with an undertaking in accordance with an approved class environmental assessment.

23If this exemption applies, Westhill argues that the potential assessment hearings for the certificates of approval for storm water and waste management cannot be required by the Director, and hence they cannot be consolidated with the OMB hearings pursuant to s. 2 of the Consolidated Hearings Act.

24The appellants argue that s. 15.1 is clear that an approved class environmental assessment is required, and the approvals in this case are not yet final.

Argument 2 – Section 100 appeals are exempt under R.R.O. 1990, Reg. 173

25Westhill further argues that s. 8 of the Consolidated Hearings Act Regulation 173 exempts the three potential appeals that may be brought to the ERT pursuant to s. 100 of the OWRA from a consolidation order.

26The following are the relevant statutory provisions relevant to this aspect of the argument.

27Section 8 of Regulation 173 of the Consolidated Hearings Act provides for an exemption from s. 2 of the Act as follows:

8. An undertaking in relation to which,

(a) a hearing described in Column 1 of the Schedule to this Regulation is or may be required; and

(b) no other hearing under one of the Listed Acts, other than a hearing described in Column 2 of the Schedule opposite the first described hearing, is or may be required,

is exempt from section 2 of the Consolidated Hearings Act.

28The Schedule is as follows:

Item	Column 1	Column 2
1.	Section 50 of the Planning Act	Section 45 of the Planning Act
2.	Any hearing	Any hearing on an appeal or other review of a decision made in connection with the hearing referred to in Column 1
3.	A hearing under the Ontario Water Resources Act, except subsections 54 (1), 55 (1) and 74 (4) and a hearing under the Environmental Protection Act, except subsections 30 (1), 32 (1) and 36 (1)	Hearings by the Ontario Municipal Board and hearings by tribunals following which a decision may be made that may be appealed to the Ontario Municipal Board.

29Westhill argues that the correct interpretation of s. 8 and the Schedule exempts s. 100 appeals to the ERT.

30The Appellants argue that the regulation and exemption do not apply, as the exemption in this case refers to a “hearing” must be strictly construed and read in the singular in light of the purpose of the CHA. In this case it is conceded that there are five potential hearings.

31Counsel for the OMB and the Town suggested that to consider the application of the regulations and exemptions in the context of the planning process, it would be helpful and appropriate for the matter to be initially considered by the OMB, before it is considered by this court.

32We agree.

33It is most unusual for issues to be raised for the first time before this court, and this practice is to be discouraged. See: McNaught v. Toronto Transit Commission (2005), 2005 1485 (ON CA), 74 O.R. (3d) 278 (C.A.), Flora v. Ontario (Health Insurance Plan, General Manager) (2005), 2005 47693 (ON SCDC), 207 O.A.C. 330 (Div. Ct.).

Conclusions

34We conclude therefore that it would be beneficial for the OMB to initially consider the question of jurisdiction with the benefit of the full factual context to fairly evaluate the issue.

35We advised counsel of our decision orally, with a written endorsement to follow. We note that counsel have already agreed to hearing dates on an expedited basis in July 2009.

36Counsel agreed to the following procedure in light of our decision to remit the matter to the OMB to consider the question of jurisdiction:

1. That the OMB be asked to address whether it has jurisdiction to order a Joint Board hearing, under the Consolidated Hearings Act, in this proceeding.

2. That the matter be remitted to a new panel of the OMB.

3. That this panel acknowledges the consent of all parties if leave is necessary to appeal the Board’s new decision.

4. That this appeal is adjourned sine die.

5. That costs are reserved to the panel hearing the appeal.

37We therefore order that the matter be remitted to a different panel of the OMB to consider the question whether the OMB has the jurisdiction to order a Joint Board hearing under the Consolidated Hearings Act in this proceeding.

38Once the OMB has rendered its decision on jurisdiction, any further proceedings in this court arising therefrom together with any outstanding issues on the appeal that have not yet been heard should be expedited.

39Costs of this hearing are reserved to the panel hearing the appeal.