COURT FILE NO.: DC-09-001527-0000

DATE: 20091113

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, KENT, ASTON JJ.

B E T W E E N:

City of Ottawa

Appellant

• and -

Minto Communities Inc.

Respondent

Paul A. Webber, Q.C, Janet Bradley and Emma Blanchard, for the Appellant

Robert Doumani, Steven Zakem and January Cohen, for the Respondent

Stan Floras for Ontario Municipal Board

HEARD AT OTTAWA: October 8, 2009

REASONS FOR JUDGMENT

ASTON J. (KENT Concurring):

The Parties and the Issue on Appeal

[1] This is an appeal by the City of Ottawa on a question of law under s. 96 of the Ontario Municipal Board Act. On July 3, 2009, Maranger J granted the requisite leave to appeal on a single question: Did the OMB err in failing to have regard to the decision of Council pursuant to s. 2.1 of the Planning Act?

[2] The answer to the question depends upon the meaning of the words “have regard to”. Before addressing the specifics of this case, the court must first decide in general what deference, if any, the Ontario Municipal Board is bound to afford to the decisions of municipal councils when hearing appeals from those decisions. The Board's participation in this appeal is limited to this preliminary issue.

[3] The City submits that, in the context of s.2.1 of the Planning Act, the words "have regard to" impose an obligation on the Board to afford considerable deference to municipal councils’ land planning decisions. It submits that the OMB, as an appellate body, ought to apply the deferential standard of "reasonableness" described in Dunsmuir v. New Brunswick.[^1]

[4] The Respondent Minto Communities Inc. (“Minto”) submits that the Board need not treat the council decision with any deference whatsoever. It submits that the Board only needs to carefully consider that decision in arriving at its own independent conclusion.

[5] The Board adopts the same position as Minto. The West Manotick Community Association did not participate directly in this appeal.

Overview and Legislative History

(a) Factual Background

[6] Minto applied to the City to amend the Manotick Secondary Plan which is part of Ottawa’s Official Plan. It proposed the removal of certain growth management policies contained in the Manotick Secondary Plan in order to allow Minto to construct 1,400 new dwelling units in the Village of Manotick.

[7] On February 13, 2008, following an extensive public process stretching over many months, Council passed Motion No. 31/8 refusing to amend the Manotick Secondary Plan (the "Refusal Decision"). Council gave a written explanation for its Refusal Decision, as required, as follows:

Motion 31/8 BE IT RESOLVED THAT

The Application for an Official Plan amendment in respect of the Secondary Plan for Manotick be refused for the following reasons:

1. The proposed development is inconsistent with the Provincial Policy Statement, in particular for development that is not within the Urban Area;

2. The amount and pace of growth [proposed by Minto] is in excess of what is appropriate for the orderly development of the Village of Manotick;

3. The transportation network, with respect to both the local roads and the roads that convey traffic beyond the community is not sufficient to cope with the proposed development;

4. The proposed scope of development will lead to an alteration of the village character not anticipated or appropriate by current and past planning policy;

5. The proposal provides for insufficient protection for environmental areas.

[8] Before making its decision, Council received various expert reports from Minto in support of its application. Council considered “commenting letters” from various public agencies and written objections from the public. Council also had a report from its own planning staff, recommending approval of Minto’s application, and a peer review of traffic studies prepared by a consultant hired by the City, also supportive of Minto’s application. Council did not have any expert reports or studies which recommended or supported the Refusal Decision.

[9] Minto appealed the Refusal Decision to the Ontario Municipal Board, as of right, under s.22(7) of the Planning Act.

[10] The Board allowed Minto’s appeal following an eight week hearing, during which the Board heard from 14 expert witnesses on behalf of the City, Minto and the West Manotik Community Association. The expert opinion evidence included land use planning, transportation and traffic planning, urban design, landscape architecture, engineering, rural planning and community development. In addition, the Board heard from four lay witnesses and from 25 members of the community. Most, but not all, of those community participants were opposed to Minto’s application.

(b) Legislative History

[11] In 2007, the Ontario Legislature enacted the Planning and Conservation Statute Law Amendment Act (Bill 51) which made significant changes to the Planning Act. From 1946 to 1996 the Minister of Housing or the Ontario Municipal Board exercised a discretionary and supervisory role in land planning through the approval of Official Plans and amendments to those plans. In 1996 the Planning Act was amended to introduce a right of appeal to the Board from municipal decisions concerning official plans and their amendments. Bill 51 continues the evolution of a transformation of the Board from its historic primary role to that of an appellate tribunal.

[12] Among the Bill 51 amendments was a new section, 2.1, which provides:

2.1 When…the Municipal Board makes a decision under this Act that relates to a planning matter, it shall have regard to,

(a) any decision that is made under this Act by a municipal council…[that] relates to the same planning matter; and

(b) any supporting information and material that the municipal council… considered in making the decision described in clause (a).

[13] This new requirement that the Board "have regard to" the decision of the municipal council is part of a package of amendments in Bill 51 that also includes:

• A requirement that an application to amend an Official Plan be accompanied by all the reports and studies upon which the Applicant relied;
• Restrictive limits on the parties to appeal, so that only the municipal council and those persons who have taken part in the public process by making oral or written submissions prior to the council decision are entitled to appeal;
• A requirement that the Board consider on appeal all the material placed before Council when it rendered its decision;
• A provision that the Board may refer the matter back to municipal council if new information comes to light on the appeal that could have materially affected council’s decision, so that council would have an opportunity to reconsider its decision in light of the new material;[^2]
• A requirement that council give written reasons for its refusal to adopt requested amendments to their planning instruments, with those reasons to form part of the record before the Board as an appeal tribunal.

[14] Taken as a whole, these amendments ensure that, in the first instance, appeals to the Board use the same record that was before Council and involve the same parties. Though these provisions provide a framework for a traditional appeal process, the case now before the court involved a lengthy hearing de novo on all aspects of the merits of Minto’s application. There was no referral back to council for reconsideration under s.17(44.4) of the Act. All the parties willingly participated in that process. No one suggested referring the matter back to Council, notwithstanding the copious new information presented to the Board on hearing the appeal. Whether the Board should have referred the matter back to Council in the circumstances of this case was not raised as an issue before this court.

Standard of Review to be applied to the Decision of the Board

[15] The City submits that the interpretation of s. 2.1 is a pure question of law relating to the Board’s appellate jurisdiction. Although the Planning Act is one of the Board’s enabling statutes, the Board itself has arrived at apparently conflicting conclusions on the meaning of s. 2.1, and specifically its new role as an appellate tribunal. The City submits that correctness is therefore the appropriate standard of review by this court.

[16] The standard of review on appeals under s.96 of the Ontario Municipal Board Act has been determined by the Court of Appeal in London v. Ayerswood.[^3] Questions of law that engage the specialized expertise of the Board, such as the interpretation of its own statute, attract a standard of reasonableness. In this case, the Board was interpreting one of its home statutes, the Planning Act, using its expertise in land use planning, its familiarity with the Provincial Policy Statement 2005 and its understanding of its own public interest mandate under the Act.

[17] Following London v. Ayerswood Development Corporation and Toronto v. R. & G. Realty Management,[^4] I find the standard of review is reasonableness.

Analysis of the Positions of the Parties

[18] The City of Ottawa submits that, as an appellate body failing to apply a deferential standard of review, the Board committed an error in law. More specifically, the City submits that in enacting s. 2.1 of the Planning Act by Bill 51 the legislature imposed a duty on the Board to review decisions of council in a manner akin to the review of administrative decisions by a court, and to give deference to decisions of council by applying the reasonableness test articulated by the Supreme Court of Canada in Dunsmuir.

[19] Following the enactment of Bill 51 the Board has had occasion to consider its new role as an appellate body, in contrast to its former role as a primary decision-maker. In Kanata Research Park Corporation v. Ottawa.[^5] the Board adopted a statement by the Minister of Municipal Affairs and Housing on second reading of Bill 51:

The OMB will act as a true appeal body, not a substitute decision-maker…I can’t repeat that often enough. The OMB should not be a primary decision body, but should deal strictly with appeals of matters that come before council, on which a council decision is made, and whether or not that decision is in accordance with the Provincial Policy Statement and the municipality’s own official plan.

[20] In Silverwood Homes v. Hamilton[^6] a differently constituted Board specifically considered a submission by counsel for the municipality that the OMB should give deference to various Council decisions because of s.2.1 of the Planning Act. The Board in that case was being asked to “have regard to” several decisions, not just one. Those included in camera committee decisions and decisions other than the ultimate Zoning By-law decision that was under appeal. On that point the Board concluded “it is the decision that Council made with respect to the Zoning By-law appeal now before this Board that the Board is compelled to have regard to in arriving at its decision on the matters under appeal.” The Board then cited the Minister’s statement during second reading on Bill 51, quoted above in Kanata Research Park, and observed “the role of the Board is that of an appellant body as opposed to a primary or alternative decision maker”. The process of an appeal would customarily imply some degree of deference to the original decision. However, the Board explicitly stated[^7] that its ultimate task was to make its decision on all the evidence before the Board, including all the various decisions of Council, but “without deference to any particular decision of the Council”.

[21] Two other decisions of the Board make specific reference to s. 2.1 of the Planning Act and the requirement to “have regard to” the decision of municipal council.

[22] In Smart Centres Inc. v. Toronto (City) [^8] the Board stated:

Having regard for a municipal decision must include examining how that decision was arrived at so as to ascertain whether that fundamental ingredient [legitimacy of purpose] exists….Given the Board’s broad mandate, therefore, it is within the Board’s jurisdiction to look behind a municipal council’s decision and that is what it has properly done in this case.

[23] In that case the Board was reviewing the process by which Council had acted, rather than the merits of a land use planning decision. However, more recently the Board has addressed s. 2.1 in the context of reviewing the actual merits of the Council decision and not just its process.

[24] In Keswick Sutherland School Inc. v. Halton (Region) and Halton Hills (Town),[^9] a differently constituted Board stated:

In reaching my decision, I have been particularly mindful of the provisions of s.2.1 of the Planning Act which states that I shall have regard to any decision made under the Act by a municipal council. This section, in my view, requires the Ontario Municipal Board to consider the decisions of council and to weigh those decisions against the evidence heard by the Board. To read this section as creating some type of obligation on the Board to be bound by and to implement such decisions would be placing far too narrow [sic] an interpretation on the section. Other provisions of the Act such as ss.17(36), 17(50), 34(19) and 34(26) clearly allow for, and contemplate the possibility of parties appealing a decision of a municipal council and the Board overturning it. Therefore, notwithstanding a level of inherent deference contained in s. 2.1, the Board does, and should, for obvious reasons, retain its independent decision-making authority. When considering the decisions made by Town Council and Regional Council, it is incumbent upon me to scrutinize those decisions to the extent possible. In that regard I have reviewed the transcript of discussions held by council members and the reasons given for rejection. Those decisions in my opinion are not supported by the preponderance of evidence both expert and otherwise which I have heard and as a result I simply cannot agree with them. In the final analysis I am satisfied that the proposal represents good planning and will serve the residents of the Halton Hills rural area.

[25] The court has not had occasion to consider the meaning of the phrase “have regard to” under s.2.1 of the Planning Act. However, many judicial decisions considered that phrase in a different context, prior to Bill 51. For example, before the present version of the Planning Act, requiring the Board to “find consistency with” the Provincial Policy Statement, the Act used to require only that the Board “have regard to” the Provincial Policy Statement. In Concerned Citizens of King Township v. King Township[^10] A. Campbell J. observed that “have regard to” falls somewhere on a scale that stretches from “recite them then ignore them” to “adhere to them slavishly and rigidly”. Other cases do not helpfully address a more definitive point along that spectrum, though they do clearly suggest the conclusion that “have regard to” is significantly less deferential than “be consistent with”. In this case, counsel for the City admits slavish or rigid adherence sets the bar too high. Counsel for Minto admits that “reciting but ignoring” the municipal decision sets the bar too low.

[26] The City submits that the standard of review by the Board on an appeal should mirror that exercised by courts when reviewing decisions of municipal councils and points to a considerable body of jurisprudence on that standard.

[27] In cases involving judicial review of municipal legislative action the “standard of review” to be applied to a decision of an elected council was set out in Nanaimo v. Rascal Trucking Ltd.[^11] as follows:

In light of the conclusion that Nanaimo acted within its jurisdiction in passing the resolutions at issue, it is necessary to consider the standard upon which the courts may review those intra vires municipal decisions. Municipal counselors are elected by the constituents they represent and as such are more conversant with the exigencies of their community than are the courts. The fact that municipal councils are elected representatives of their community and accountable to their constituents is relevant in scrutinizing intra vires decisions. The reality that municipalities often balance complex and divergent interests in arriving at decisions in the public interest is of similar importance. In short, these considerations warrant that the intra vires decisions of municipalities be reviewed upon a deferential standard.

[28] The court went on to say:

The conclusion is apparent. The standard upon which courts may entertain a review of intra vires municipal actions should be one of patent unreasonableness.

[29] Mr. Webber, for the City, points out, quite correctly, that if this court were considering a review of the decision by the municipality, without any intervening process before the OMB, great deference would have to be afforded to Council’s decision.[^12] However, the main reason for such deference is the recognition that the court does not inherently have any expertise in land use planning decisions. On the other hand, the OMB certainly does. The OMB can therefore oversee or review planning decisions by municipal councils from the vantage point of its expertise. There is another important difference between the court and the OMB. Unlike the court, the Board may determine the appeal based on fresh and expanded evidence, rather than merely reviewing the record of what was before Council in making its decision. The OMB process affords the parties a full hearing that includes an opportunity to present evidence, including expert evidence that may not have been before the municipal council in making its decision.

[30] Furthermore, it is important to keep in mind that the appeal process before the Ontario Municipal Board is not merely a lis between parties, but a process requiring the OMB to exercise its public interest mandate. The decision to be made by the Board transcends the interests of the immediate parties because it is charged with responsibility to determine whether a land planning proposal is in the public interest. At first instance, that public interest is determined by Municipal Council, but on an appeal the Board has the obligation to exercise its independent judgment on the planning merits of the application and to assess the proposal and the positions of the parties from the perspective of applicable legislation, regulations, provincial plans, the provincial policy statement, official plans and bylaws and even the potential impact on neighbouring municipalities. In doing so, it brings its own expertise to bear.

[31] The legislature used language that suggests minimal deference when choosing the words “have regard to”, considering the many other expressions it could have used to signal the level of deference suggested by the City in this appeal. In my view the traditional role of the Board, and the broad powers it exercises, should not be altered radically without a more clear and specific expression of legislative intent.

Conclusion

[32] I reject the City’s submission that the Board is required to exercise its appellate jurisdiction with the degree of deference articulated in Dunsmuir.

[33] In my view, the Board’s obligation is better articulated in paragraph 30 of the Keswick Sutherland decision quoted above. The words “have regard to” do not by themselves suggest more than minimal deference to the decision of Municipal Council. However, in the context of the Planning Act, and balancing the public interest mandates of both the Board and the municipality, I would agree with Member Stefanko in Keswick Sutherland that the Board has an obligation to at least scrutinize and carefully consider the Council decision, as well as the information and material that was before Council. Furthermore, because Bill 51 now obliges Council to give written reasons when refusing to adopt requested planning amendments, which are part of the record before the Board, the Board also ought to carefully and explicitly consider the specific reasons expressed by Council. However, the Board does not have to find that the Council decision is demonstrably unreasonable to arrive at an opposite conclusion.

[34] The question then is whether the Board met this standard in this particular case.

[35] The Board fully and carefully analyzed each of the five reasons stated by council when it refused Minto’s application.

[36] With respect to the 2005 Provincial Policy Statement (Council’s Reason 1), the Board found:

The Board considered all of the evidence of the experts and lay witnesses, both written and viva voce, submissions and arguments of Counsel in making its findings, on the proposed OPA and DCP conformity, with the applicable planning instruments and policies.

It is the Board’s finding that the proposed OPA and DCP conform to the Manotick SP, the City’s OP and are consistent with the pertinent policies of the 2005 PPS.

[37] With respect to pace of growth (Council’s Reason 2), the Board determined:

The Board agrees with her [Ms. Patterson under summons by Minto] assessment that the growth management policy in the secondary plan which caps growth in the Village, to 2,000 units by 2020, is not realistic in light of the fact that municipal services are now available.

[38] On the sufficiency of the road network (Council’s Reason 3), the Board observed:

…The Board is satisfied that City staff, in the discharge of their responsibilities, will properly review these traffic impact studies.

[39] The Board made the following findings concerning the character of the village (Council’s Reason 4):

…The Board finds the defining characteristics of Manotick as advanced by the applicant’s architect and urban design experts to be more persuasive. The Board finds that it is mostly the design aesthetics and historical feature in the core that gives Manotick its unique characteristics.

It is the finding of this Board that the proposal will not have an unacceptable adverse impact on the village character of Manotick nor will it “overwhelm” the Village if properly implemented. It is the finding of the Board that the design attributes of this proposal when implemented will relate well to the village core and contribute to the core’s commercial vibrancy…

[40] As to the protection of environmental features (Council’s Reason 5), the Board observed:

Neither the City nor the WMCA brought any expert evidence to challenge the evidence given by the Respondent’s expert witnesses.

[41] In the totality of its own decision, the Board did in fact carefully consider the decision of council. It scrutinized that decision and made findings that support the Board’s explicit reasons for arriving at a different conclusion, and a decision inconsistent with that of the Municipal Council.

[42] Therefore, the Board did not err in failing to have regard to the decision of council under s. 2.1 of the Planning Act. The appeal is dismissed.

[43] If counsel are unable to agree on costs, brief written submissions may be made within the next 30 days.

Aston, J.

Kent, J.

Matlow, J: (Dissenting)

[44] With respect, I am unable to agree with the disposition of the majority. I would allow the appeal and set aside the decision of the Board and restore the decision made by the city council of Ottawa (“Council”). I would also invite counsel, if it is required, to exchange and deliver written submissions regarding costs within 30 days.

[45] Underneath the interpretation of the words, “have regard to”, there are many critical questions regarding the nature of the appeal that was before the Board which, in my respectful view, have not yet been adequately addressed or determined. Without a careful consideration of those questions, it is impossible, as this case demonstrates, to give a meaningful interpretation to those words in the context of the appeal to the Board or in the context of the appeal to this court.

[46] I begin my analysis by observing that Council, in making the decision that was the subject of Minto’s appeal to the Board, carried out a legislative function as members of the elected body responsible for governing the City of Ottawa which now contains the former Village of Manotick. Its decision was, in essence, a clear rejection of the development proposed by Minto. Council did not want to allow Minto to construct 1400 new dwelling units in Manitock that Council clearly regarded as being in violation of the rate of growth provisions in the Manitock Secondary Plan and would destroy the present nature of the village. In refusing to approve Minto’s application to remove the growth cap, Council upheld three previous council land planning decisions.

[47] Before arriving at its decision, Council conducted, as it was required to do, an extensive pubic consultation process, giving members of the public an opportunity to obtain information regarding the application under consider consideration and to communicate their views on it to Council. In coming to their decision, the members of Council accepted some of the expert planning evidence presented to them and rejected other parts, including the recommendation contained in the report of the City’s own planning staff. Ultimately, the decision made by Council reflected the personal value judgments of its members and the value judgments of their constituents. In my view, they correctly followed the procedures and constraints set out in the Planning Act and made their own independent legislative decision. This approach, in very general terms, is precisely how other elected legislators sitting in Parliament or in the provincial Legislature go about making decisions on matters falling within their jurisdiction.

[48] The creation in Bill 51, which came into force in 2007, of a statutory right of appeal from decisions in land planning matters made by city councils recognized this similarity between city councils and other democratic legislative bodies. The resulting amendment of the Planning Act brought an end to the previous status of the unelected appointed Board as the real primary decider that could, and often did, override decisions of city councils almost at will. From that time on, the Board’s function in planning matters was to be continued in a more restricted role as the tribunal whose function would be confined to hearing appeals from decisions made by city councils. As stated above in paragraph 11 of the reasons of Aston, J., this was s “transformation of the Board from its historic primary role to that of an appellate tribunal” and it was widely proclaimed to be a monumental recognition of the new roles of city councils and the Board in the land planning process.

[49] This transformation has been recognized in the past by the Board, differently constituted. For example, in Kanata Research Park Corp. v. Ottawa (City), [2008] O.M.B.D. 1048, at paragraph 30, the Board adopted the following statement Of the Minister of Municipal Affairs and Housing on second reading of Bill 51:

I can’t repeat that often enough. The OMB should not be a primary decision body, but should deal strictly with appeals of matters that come before council, on which a council decision is made, and whether or not that decision is in accordance with the provincial policy statement and the municipality’s own official plan.

[50] The Minister’s statement was again adopted by the Board, differently constituted, in Silverwood Homes Ltd. V. Hamilton (City), [2008] O.M.B.D. No. 1174 at paragraph 116.

[51] Section 17 (50) of the Planning Act, to which section 22 (11) refers, sets out the Board’s new powers on appeal as follows:

Powers of O.M.B.

17 (50) On an appeal or transfer, the Municipal Board may approve all or part of the plan as all or part of an official plan, make modifications to all or part of the plan and approve all or part of the plan as modified as an official plan or refuse to approve all or part of the plan.

[52] Regretfully, the Legislature gave very little guidance as to how the Board should perform its new role as an appellate tribunal. Most importantly, it gave no direction at all as to when the Board was to be entitled to exercise its broad statutory powers on appeal and interfere with legislative decisions made by city councils. Perhaps this failure can be understood and forgiven when one considers how difficult it would be to articulate those circumstances and the standard of review that should be applied. And perhaps the Board’s record of proceeding almost as if Bill 51 had never been enacted has been the direct result.

[53] Instead, the Legislature enacted section 2.1 of the Planning Act which contains the requirement that the Board, when making “a decision under this Act that relates to planning matter”, that it “have regard to…any decision…made under this Act by a municipal council…that relates to the same planning matter” and any “supporting information and material” that the council considered in making the decision.

[54] In other words, the Legislature directed the Board, in essence, to have regard to the very decision that is the subject of the appeal and the evidence on which the decision was made. It strains my imagination to come up with a reasonable explanation for why the Legislature determined that it was necessary, or even desirable, to require that the Board “have regard” to the very decision that was the subject of an appeal before it and the basis upon which it was made. Surely that fundamental requirement would be self-evident.

[55] The written reasons for decision of the Board go on for 34 pages. I have read them carefully and have been unable to find any indication that the Board addressed the issue of the appropriate standard of review that it should apply and whether or not Council met that standard. No reference is made to the decision of the Supreme Court of Canada referred to above in paragraph 27 of the reasons of Aston, J. Nor does it address the interpretation that should be given to the words, “have regard to”. Nor is there any finding that Council erred in any way or that its decision was unreasonable. In their totality, the reasons do not, except in a formal way at the introduction and at the conclusion, even indicate that they relate to a decision made on an appeal. It is informative to peruse the entire “Conclusion and Board Disposition” which reads as follows:

CONCLUSIONS AND BOARD DISPOSITION:

For all the reasons given and the findings made in this decision, it is the finding of the Board that the proposed OPA conforms to the Manotick Secondary Plan, and the Ottawa Official Plan. The proposed OPA is not premature. The Board finds that the proposed OPA is consistent with the 2005 PPS. The Board in making its findings had regard to the City of Ottawa’s Council on this matter pursuant to subsection 2.1 of the Planning Act. It is the finding of the Board that the proposed OPA represents good planning and is in the broader public interest.

The applicant has agreed to dedicate the pond and the creek corridors to the for public use. The applicant has also agreed to use the conceptual designs found in Ec. 13 as the basis for the design guidelines of the proposed development. These agreements are to be implemented at the draft plan of subdivision stage in a form acceptable to the City.

Therefore the BOARD ORDERS that:

1. The appeal is allowed, and the Official Plan for the City of Ottawa is amended as set out in Attachment “1” to the Order, and as amended and approved, and

2. The applicant will undertake to dedicate the pond and creek corridors to the City for public use and use the conceptual designs found in Ex. 13 as the basis for the design guidelines of the proposed development. This undertaking will be implemented at the draft plan of subdivision approval stage in a form acceptable to the City.

The Board so Orders.

[56] I am in agreement with the majority that the Board did “have regard to” the decision of Council. It obviously scrutinized the decision of Council and some of the evidence and “information” that Council considered. The Board also, over the course of the hearing, heard the evidence described above in paragraph 10 of the reasons of Aston J.

[57] The Board then rendered a decision and reasons for its decision that were written as if the Board were still a primary decision maker as it was prior to the coming into force of Bill 51. The Board simply disagreed with the decision of Council and substituted its own decision for that of Council. It was a stunning rejection of the movement towards greater municipal autonomy that Bill 51 was intended to advance.

[58] I return to where these reasons began with the following observations and conclusions:

1. The Board was required to conduct an appeal, not an unrestricted hearing de novo.

2. The Board was entitled to interfere with the decision of Council only if that decision failed to meet the requisite standard of review.

3. In its consideration of this appeal, the Board was required “to have regard” pursuant to section 2.1 of the Planning Act in the sense that it was required to at least scrutinize and carefully consider Council’s decision and what it was based on. I agree that the Board substantially complied with this requirement.

4. Whether or not the Board was required to give deference to the decision of Council need not be decided in this case and should await another case in which the determination might affect the outcome.

5. The first reason given by Council for its decision was on a mixed issue of law and fact. The remaining four reasons given were on issues that were all within the exclusive jurisdiction discretion Council to legislate and within its exclusive discretion. The standard of review applicable to all five reasons is, therefore, reasonableness.

6. The Board was required to conduct the prescribed appeal and “to have regard to” and then apply the correct standard of review. It is self-evident that the Board failed to apply any standard of review. Instead, it substituted its own decision for that of Council because its views on the merits of Minto’s application were different from those of Council.

7. Council’s decision was overwhelmingly reasonable and should have been upheld by the Board.

8. It follows that the Board, for the above reasons, failed to carry out its statutory duty as an appellate tribunal. As a result, it erred in its interpretation and application of “have regard to”. These were errors of law that clearly affected the outcome of the appeal. We are not required to treat the Board’s order with any deference. Accordingly, this court is now required to set aside the Board’s decision.

Matlow J.

Released: November 13, 2009

COURT FILE NO.: DC-09-001527-0000

DATE: 20091113

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, KENT, ASTON JJ.

B E T W E E N:

City of Ottawa

Appellant

• and -

Minto Communities Inc.

Respondent

REASONS FOR JUDGMENT

Aston J.

Kent J.

Matlow J.

Released: November 13, 2009

[^1]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [^2]: See sections 17(44.3) and 17(44.4) of the Planning Act, part of the Bill 51 amendments. The appeal process to the Ontario Municipal Board is unusual. Section 17(44.3) contemplates that “information and material” may be presented at the hearing of an appeal which was not provided to the municipality before council made the decision that is the subject of the appeal. The section goes on to provide that the OMB may, on its own initiative or on a motion by one of the parties, consider whether that information and material could have “materially affected the council’s decision” and “if the Board determines that it could have done so, it shall not be admitted into evidence” until council has been notified and given an opportunity to reconsider its decision in light of the information and material and make a written recommendation to the Board. That procedure was not followed in this case. [^3]: London (City) v. Ayerswood Development Corp., (2002), 2002 3225 (ON CA), 34 M.P.L.R. (3d) 1, para. 7 [^4]: Toronto (City) v. R & G Realty Management Inc., [2009] CarswellOnt 4717 (Div. Ct.), paras. 6 and 7 [^5]: Kanata Research Park Corp. et al v.Ottawa (City) [2008] O.M.B.D. No. 1048 (O.M.B.) at para. 30 [^6]: Silverwood Homes Ltd. V. Hamilton [2008], O.M.B.D. No. 1174 paras 111-119. [^7]: Paragraph 119 of its decision [^8]: Smart Centres Inc. v. Toronto (City) [2009] CarswellOnt 1421 (OMB) at para 98 [^9]: Keswick Sutherland School Inc. v. Halton (Region) and Halton Hills (Town) 2009 CarswellOnt 4670 at para 30 [^10]: Concerned Citizens of King (Township) v. King (Township), [2000] O.J. No. 3517 (Div. Ct.) at para 16. [^11]: Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342 (S.C.C.) para 35 and 37 [^12]: Assuming no issue over procedural fairness, breach of natural justice or lack of jurisdiction.