CITATION: Chinguacousy Farms Ltd. v. Minister of Transportation, 2011 ONSC 2687
DIVISIONAL COURT FILE NO.: 125/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SWINTON AND LEDERER JJ.
BETWEEN:
CHINGUACOUSY FARMS LIMITED
Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTER OF TRANSPORTATION FOR ONTARIO
Respondent
Stephen F. Waqué, for the Applicant
Leslie McIntosh and Judie Im, for the Respondent
HEARD at Toronto: April 28, 2011
SWINTON J. (ORALLY)
1This application for judicial review is dismissed as it is premature and the applicant’s appropriate remedy lies to the Ontario Municipal Board (“the OMB”).
Prematurity
2The applicant asks that we give a declaration that it was unreasonable for the Ministry of Transportation not to give a clearance letter at least for phase one, as the conditions necessary for the issuance of the clearance letter have been met.
3As of today, the condition with respect to engineering drawings has not been met to the Ministry’s satisfaction. The Court should not order a decision-maker to exercise its discretion when the decision-maker is actively undertaking an investigation in order to make its decision. At this time, the engineering drawings are under active consideration. Therefore, the application for declaratory relief is premature.
The Appropriate Remedy
4The decision of the OMB states:
In the event that there are any difficulties implementing any of the conditions of draft plan approval as amended, or if any further changes are required to be made to the draft plan, the Board may be spoken to.
5At any time prior to registration of the plan of subdivision, it is open to the applicant to apply to the OMB to amend, waive or rescind the conditions (see s. 51(43) of the Planning Act, R.S.O. 1990, c. P.13 and the Board’s own order in this proceeding).
6This judicial review application asks the Divisional Court to usurp the function of the OMB as the forum in which to address “difficulties implementing any of the conditions of draft plan approval” when the OMB retained the jurisdiction to make any “further changes [as] required to be made to the draft plan.”
7Additionally, the declaration sought by the applicant would require the Court to manage the approval process and encroach on the responsibilities of the City and the OMB in the planning process.
8For these reasons, the application for judicial review is dismissed.
9The Application Record is endorsed, “This application is dismissed as per the oral reasons of Swinton J. on behalf of the panel. Applicant is to pay costs fixed at $10,000.00.”
SWINTON J.
ASTON J.
LEDERER J.
Date of Reasons for Judgment: April 28, 2011
Date of Release: May 18, 2011
CITATION: Chinguacousy Farms Ltd. v. Minister of Transportation, 2011 ONSC 2687
DIVISIONAL COURT FILE NO.: 125/11
DATE: 20110428
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SWINTON AND LEDERER JJ.
BETWEEN:
CHINGUACOUSY FARMS LIMITED
Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTER OF TRANSPORTATION FOR ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: April 28, 2011
Date of Release: May 18, 2011