CITATION: Train v. John Weir, et al., 2012 ONSC 5157
BARRIE COURT FILE NO.: B12-746
DATE: 20121113
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
WILLIAM TRAIN
Appellant (Moving Party)
Harold G. Elston, for the Appellant
- and -
JOHN WEIR and THE CORPORATION OF THE TOWN OF GRAVENHURST
Respondents (Responding Parties)
Ian J. Rowe, for the Respondent Weir
HEARD: September 13, 2012
REASONS FOR DECISION
LAUWERS J.
[1] On November 22, 2011, the Corporation of the Town of Gravenhurst passed site-specific Zoning By-law 2011-157, which amended the Town’s Comprehensive Zoning By-law to permit William Train to build a boathouse on his property. The amending By-law created an exception for the property to the ordinary zoning provisions applicable to frontage on a narrow waterway, which do not permit the construction of boathouses.
[2] Mr. Train’s neighbour, John Weir, appealed the passage of the By-law to the Ontario Municipal Board. By decision dated June 5, 2012, under the name of Weir v. Gravenhurst (Town), found at [2012] O.M.B.D. No. 397 (Sutherland), the Board allowed the appeal and directed the Municipality to repeal the amending By-law. If the decision stands Mr. Train will not be permitted to build the boathouse.
[3] Mr. Train moves under section 96 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 for leave to appeal the decision to the Divisional Court “on a question of law”. For the reasons set out below, I decline to grant leave to Mr. Train to appeal the Board’s decision to the Divisional Court.
The Standard of Review
[4] The test for leave is set out by Penny J. in Aurora (Town) v. Sikura, 2011 ONSC 7642, 71 O.M.B.R. 1 at paras. 2 and 3:
2 The test for obtaining leave to appeal from a Board decision requires that:
(1) the proposed appeal raises a question of law;
(2) the correctness of the Board’s decision with respect to the question of law must be open to substantial doubt; and
(3) the point of law must be of sufficient importance to merit the attention of the Divisional Court.
3 While the court does not need to apply a standard of review directly when considering a motion for leave to appeal, the court hearing the motion should be conscious of the fact that the Board has expertise in both planning matters and with respect to its “home” statute, the Planning Act, R.S.O. 1990, c. P.13. Whether the impugned portions of the Board’s decision fall within the ambit of that expertise, and whether the standard of review is likely to be reasonableness or correctness, assists in assessing whether there is substantial doubt about the correctness of the Board’s decision.
See also London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.) at para. 7, and Ottawa (City) v. TDL Group Corp., [2009] O.J. No. 4816 (Div. Ct.) per G. Roccamo J. at paras. 17-23.
[5] In light of the evolution of the jurisprudence around Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the older test of showing “that the correctness of the order is open to very serious debate” seems to me to be insufficiently deferential to the Ontario Municipal Board where its interpretation of the Planning Act, R.S.O. 1990, c. P.13, other similar legislation, or planning documents is involved; I therefore decline to follow Kraft Canada Inc. v. Menkes Lakeshore Ltd., 2007 65611 (ON SCDC), [2007] O.J. No. 2834 (Div. Ct.) per Himel J. at para. 13.
[6] The advent of Dunsmuir obliges the court to take into account the reasonableness standard even in deciding applications for leave to appeal, as noted by the court in Toronto (City) v. R. & G. Realty Management Inc., [2009] O.J. No. 1048 (Div. Ct.) at para. 6, and in Ottawa (City) v. TDL Group Corp., [2009] O.J. No. 4816 (Div Ct.) per Roccamo J at para. 22.
[7] The Supreme Court requires reviewing courts to keep in mind two basic things. The first is that the Legislature’s choice to confer decision making power in a particular area on a tribunal must be respected. The second is that the right decision is often not glaringly obvious, and the tribunal’s expertise and “field sensitivity” in making the decision must also be respected. The reasonableness principle is set out in Dunsmuir at para. 47:
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
The Factual Context
[8] Mr. Train owns a property located on Portage Bay in the Town of Gravenhurst on which he wants to build a boathouse. It would be modest in size and would pose no danger to navigation.
[9] Mr. Train’s property is covered by three relevant planning documents: the Official Plan of the District of Muskoka (the “DOP”), the Official Plan of the Town of Gravenhurst (the “GOP”), and the Comprehensive Zoning By-law of the Town of Gravenhurst 2010-04 (sometimes referred to as “ZBL 10-04”).
[10] Mr. Train applied for a building permit and obtained one, because the proposed building complied with the zoning requirements under the previous zoning By-law Amendment 94-54. But the building would not comply with the requirements of the new ZBL 10-04. The new ZBL 10-04 was then under appeal, which, as the Member noted, created a “period of ambiguity”. Mr. Train proceeded with the construction of the boathouse.
[11] As the Member noted, when the Town realized that the building permit did not comply with the new ZBL 10-04: “It was obligated to place an order to comply on the subject property until the non-compliance issue was resolved. The applicant then applied to re-establish the right to have a boathouse on the subject lands.”
[12] On November 22, 2011, Town council passed amending By-law 2011-157 permitting the construction of the boathouse. Mr. Weir, who owns the neighbouring property, appealed to the Ontario Municipal Board under subsection 34(19) of the Planning Act on the basis that it did not comply with the Town’s Official Plan or with the spirit and intent of the Town’s new Comprehensive Zoning By-law.
[13] The Board heard the contending expert planners. Richard Hunter was called by Mr. Train and testified in favour of the amending By-law. Robert List was called by Mr. Weir and testified that the amending By-law was inconsistent with the relevant planning documents.
The OMB Decision under Appeal
[14] The operative part of the decision is fairly brief, so I reproduce it in its entirety below.
21 Mr. Hunter stated that the application conformed to the DOP, a position with which Mr. List agreed. Mr. List, however, emphasized that the DOP encouraged local municipalities to go beyond its general provisions to more detailed provisions, as the Town has done in section 5.2.5.2 on ZBL -10-04, which forbids a boat house on a lot fronting on a narrow waterway.
22 In the Board’s view, this is the crux of the entire matter. The fact that, as Mr. Hunter emphasized, the boathouse will be tucked into a small cove, mostly out of sight of views from neighbouring cottages, or that it will be only one storey, or that it will be of simple design, is immaterial. For reasons that reach beyond safe navigation on this narrow waterway, “it shall not be permitted.”
23 These reasons have to do with the natural environment and “culture of the area”. While parts of Muskoka are well known for their boathouses, this is not true of Portage Bay. And, the boathouses for which Muskoka is known are the elaborate Victorian boathouses of the late 19th and early 20th centuries, the so-called “eye candy” being reproduced in certain areas of the district to this day.
24 There is a growing concern in Gravenhurst, as in other areas of the province, about the challenge of maintaining a natural shoreline environment. This, in part, is what the prohibition of boathouses in narrow waterways is all about, as Mr. List pointed out. Views of the shoreline are not only from land and from other cottages, but also from the water.
25 There was some discussion, and difference of opinion between the planners, as to the distinction among a “narrow waterway”, a “narrow channel”, a “boat channel protection area” and a “significant narrow waterbody”. The zoning by-law, which implements the OP, refers to “a narrow waterway”. That Portage Bay constitutes a “narrow waterway” by the definition of the zoning by-law, there can be no argument. The distance from shoreline to shoreline is approximately 90 metres, less than the 150 metres required to remove it from this definition. This being the case, a boathouse is not permitted.
26 There is, in the Board’s view, no reason to excuse the subject property from the standards of the zoning by-law. The fact that there are two other boathouses on the bay is irrelevant. They were built in another era, predating the passage of the zoning by-law. That they were even referred to in support of the application is illustrative of the fact that permitting a boathouse on the subject property would strengthen the case for other boathouses, not just on Portage Bay, but on other narrow waterways in Gravenhurst. The proposed boathouse may be modest in size, not intrusive, and pose no danger to navigation, but it is still a boathouse on a narrow waterway, and, whatever its other characteristics, it will not be invisible, especially from the water. It will have impact upon the natural environment the Town, through it planning instruments, is attempting to preserve.
Issues
[15] The moving party proposes the following questions of law for the consideration of the Divisional Court:
Did the Board make an error about the conformity of the amending By-law with the Official Plan?
Did the Board fail to correctly apply proper principles of statutory interpretation?
Did the Board fail to “have regard to” the decision of municipal council?
I will address each alleged error of law in turn.
Issue 1: Did the Board make an error about the conformity of the amending zoning By-law with the Official Plan?
[16] The moving party expresses the proposed legal question this way:
Did the Board err in law by finding that the District of Muskoka Official Plan and the Town’s Official Plan require applications to amend the Town’s Zoning By-law Number 2010-04 to conform to the provisions of the Zoning By-law?
[17] The statutory hierarchy established under the Planning Act is elementary to the municipal planning and zoning process in Ontario as any Board Member would well know. Under section 24 of the Act, a zoning by-law must conform with the applicable official plan or plans.
[18] The applicant submits that instead of considering whether the amending By-law conformed to the relevant official plans, being the DOP and the GOP, “[t]he Board seriously misconstrued the statutory hierarchy between official plan policy and zoning by-law implementation and, as a result, elevated the zoning by-law such that it became incapable of amendment.”
Discussion
[19] I am unable to draw the inference from the Board’s reasoning that the Board misconstrued the statutory hierarchy. The issue for the Board was whether municipal council’s decision to grant a site-specific exception to the Comprehensive Zoning By-law was proper in view of the Official Plan policies with which the by-law must conform, and planning principles. That By-law otherwise, as the Member described it, “forbids a boathouse on a lot fronting on a narrow waterway,”
[20] The Member confronted that question directly. Her answer was this:
22 For reasons that reach beyond safe navigation on this narrow waterway, “it shall not be permitted.”
23 These reasons have to do with the natural environment and “culture of the area”. While parts of Muskoka are well known for their boathouses, this is not true of Portage Bay. And, the boathouses for which Muskoka is known are the elaborate Victorian boathouses of the late 19th and early 20th centuries, the so-called “eye candy” being reproduced in certain areas of the district to this day.
24 There is a growing concern in Gravenhurst, as in other areas of the province, about the challenge of maintaining a natural shoreline environment. This, in part, is what the prohibition of boathouses in narrow waterways is all about, as Mr. List pointed out. Views of the shoreline are not only from land and from other cottages, but also from the water. [Emphasis added.]
[21] The Member’s reasoning echoes the words from section B.2 of the DOP, which she had earlier quoted:
…section B.2 states that the goal of the DOP is “to protect the quality of the cultural and natural environment of Muskoka and accommodate growth by facilitating traditional and contemporary development that recognizes the character of Muskoka.”
[22] The Member then concluded:
26 There is, in the Board’s view, no reason to excuse the subject property from the standards of the zoning by-law. The fact that there are two other boathouses on the bay is irrelevant. They were built in another era, predating the passage of the zoning by-law. [Emphasis added.]
[23] To paraphrase Dunsmuir, the Member’s reasons, albeit brief, justify the outcome in terms of the statutory hierarchy under the Planning Act, and are transparent and intelligible. The decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law in relation to the statutory hierarchy. The moving party has not satisfied me that the Board’s decision with respect to the proposed question of law is open to substantial doubt. In my view the Board did not make an error of law on this issue. This issue does not merit appellate review.
Issue 2: Did the Board fail to correctly apply the proper principles of statutory interpretation?
[24] The moving party proposes the following issue of law:
Did the Board fail to correctly apply proper principles of statutory interpretation and so err in law by failing to give meaning to the purpose of and the words and phrases used in the District Official Plan and the Town’s Official Plan and Zoning By-law?
[25] The moving party submits that: “Notwithstanding the fact that the Train property is located on a bay, the foundation of the Board’s reasoning in allowing the appeal was that Section D2.2 of the Town’s official plan prevented the development of lands such as “narrow channels”.”
Discussion
[26] The starting position is ZBL 2010-04, which provides at section 5.2.5.2 (ii): “the maximum projection of a boathouse or a boat port into the water shall be 15.0 metres from the optimal summer water level, with the exception of the lot fronting on a narrow waterway, in which case a boathouse or boat port shall not be permitted” (emphasis added). Section 4.125 of ZBL 2010-04 defines “narrow waterway” as “a navigable waterway where the distance from shoreline to shoreline on a lake is less than 150 metres or the distance from shoreline to shoreline on a river is less than 30 metres.”
[27] For the proposed exception to be permitted, the proposed amendment had to conform with both the GOP and the DOP.
[28] At paragraph 25 of the decision the Member interpreted the language of ZBL 2010-04, and finds that an exception would be necessary to permit the moving party to build a boathouse:
25 There was some discussion, and difference of opinion between the planners, as to the distinction among a “narrow waterway”, a “narrow channel”, a “boat channel protection area” and a “significant narrow waterbody”. The zoning by-law, which implements the OP, refers to “a narrow waterway”. That Portage Bay constitutes a “narrow waterway” by the definition of the zoning by-law, there can be no argument. The distance from shoreline to shoreline is approximately 90 metres, less than the 150 metres required to remove it from this definition. This being the case, a boathouse is not permitted. [Emphasis added.]
[29] The moving party does not dispute the need for an exception, but argues that the Member saw an impediment in Section D2.2 of the GOP when there was none. The moving party argues that the Member misunderstood the GOP, and submits:
Notwithstanding the fact that the Train property is located on a bay, the foundation of the Board’s reasoning in allowing the appeal was that Section D2.2 of the Town’s official plan prevented the development of lands such as “narrow channels”. In particular, the Board relied upon the language in paragraph f) of Section D2.2, which it considered to prohibit development:
The Zoning By-law implementing this Official Plan will include regulations that will:
f) prevent the development of lands that are considered to be significant landscape features such as cliffs, steep slopes in excess of 40 percent, narrow channels and large areas of exposed barren rock.
[30] With respect, this seriously mischaracterizes the Member’s decision and does not do justice to its substance, which was set out in the discussion of the previous issue. While she refers to this GOP provision at paragraphs 13 and 14 in summarizing the evidence, she makes no specific reference to the technical details in the explanation of her decision.
[31] The Member was plainly alive to the definitional issues, as is noted in paragraph 25 of her decision. She considered the DOP and the GOP and concluded at paragraph 23 that the proposed development was inconsistent with the DOP, on the broader base of protection of “the natural environment” and “culture of the area”. Her analysis at paragraphs 21-26 draws on the antecedent evidence and she clearly preferred the evidence of the respondent’s planner, Mr. List.
[32] The elements the Member cited of natural environment and culture are expressed in section B.2 of the DOP which states that its goal is “to protect the quality of the cultural and natural environment of Muskoka and accommodate growth by facilitating traditional and contemporary development that recognizes the character of Muskoka” (emphasis added), which she quoted at paragraph 10 of the decision. These factors are also referred to in the preambular words to section D2.2 (f) of the GOP that the moving party did not cite:
Buildings in the Waterfront Area will be designed and constructed to blend into the natural environment and preserve the historic architectural characteristics of the area. Council will adopt design guidelines for the Waterfront Area that will include architectural details and landscape elements that will implement these policies. [Emphasis added.]
[33] Given the Member’s decision on the planning merits, she was not obliged to do a technical reconciliation of the language inconsistencies among the various planning documents.
[34] To paraphrase Dunsmuir, the Member’s reasons, albeit brief, justify the outcome in terms of the language of the planning provisions, and are both transparent and intelligible. The decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law in relation to the interpretation of the planning documents. Of the three substantive issues proposed by the moving party for consideration by the Divisional Court, this one is the most centred in the Board’s planning expertise and is of the least public importance.
[35] The moving party has not persuaded me that the Board’s decision with respect to the proposed question of law on the proper principles of statutory interpretation is open to substantial doubt. In my view the Board did not make an error of law on this issue. This issue does not merit appellate review.
Issue 3: Did the Board fail to “have regard to” the decision of council?
[36] The moving party proposes the following question of law:
Did the Board err in its interpretation and application of the requirement to “have regard to” a decision made under the Planning Act by a municipal council and, in so doing, fail to carry out its statutory duty as an appellate tribunal?
[37] The moving party complains that: “In its decision, the Board omits any reference to the decision of council, fails to assign any weight to council’s consideration of the application, and provides no indication that it has had any regard to it.” The moving party submits that: “…there is a need for the Divisional Court to review whether the degree of attention the Board paid to the decision of council qualifies as a proper interpretation and application of the requirement to “have regard to” a decision made under the Planning Act by a municipal council, under new Section 2.1.”
Discussion
[38] Section 2.1 of the Planning Act was added by S.O. 2006, c. 23, s.4:
2.1 When an approval authority or 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 or by an approval authority and relates to the same planning matter; and
(b) any supporting information and material that the municipal council or approval authority considered in making the decision described in clause (a). [Emphasis added.]
[39] The underlined phrase in section 2.1 of the Planning Act, which requires the Board to “have regard to” the decision of municipal council, was not new in 2006. This phrase was previously found in section 2 of the Act relating to matters of provincial interest, and in section 3 relating to the treatment of provincial policy statements by municipal councils among other entities.
[40] The contrast can be seen in section 3, which was amended in 2006 to substitute the words, “shall be consistent with” for the words “have regard to” :
3(5) A decision of the council of a municipality…in respect of the exercise of any authority that affects a planning matter, (a) shall be consistent with the policy statements issued under subsection (i) that are in effect on the date of decision; and (b) shall conform with the Provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.
[41] The phrase “have regard to” is still found in section 2 relating to matters of provincial interest and in the new section 2.1 relating to the decisions of municipal council. One can safely infer that the phrase “have regard to” was inserted in the new section 2.1 in order to import the jurisprudence on the meaning of that phrase. I observe that the Legislature chose not to require that decisions of the Board “be consistent” with decisions of municipal council, in active contrast to section 3.
[42] In Ottawa (City) v. Minto Communities Inc., 2009 65802 (ON SCDC), [2009] O.J. No. 4913 (Div. Ct.) Aston J. pointed this history out:
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 [[2000] O.J. No. 3517 (Div. Ct.) at para. 16] 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.
[43] In Concerned Citizens of King Township, A. Campbell J. gave leave to appeal and provided a working interpretation of the phrase:
23 Taking the reasons as a whole it is open to serious question whether the Board “had regard” to the provincial policies in the sense of considering them carefully in relation to the circumstances at hand, their objectives and the statements as a whole, and what they seek to protect, and determining whether and how the matter before it is affected by, and complies with, such objectives and policies, with a sense of reasonable consistency in principle.
He picked this language up from Re. Ottawa-Carleton (Regional Municipality) Official Plan Amendment No. 8 (1991), 26 O.M.B.R. 132 (D.H. McRobb and P.H. Howden, Q.C., Vice-Chairs and R.D.M. Owen) at pp. 180-182.
[44] Aston J. commented in Minto Communities Inc.:
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. [Emphasis added.]
[45] Aston J. quoted with approval from the Keswick Sutherland decision addressing the effect of the phrase “have regard to” on the Board’s appellate mandate:
24 In Keswick Sutherland School Inc. v. Halton (Region) and Halton Hills Town) [2009] O.M.B.D. No. 618, 2009 CarswellOnt 4670 at para. 30] 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. [Emphasis added.]
[46] I note that the Legislature decided not to alter the Board’s broad jurisdiction under section 34 of the Planning Act on appeals from the decisions of municipal council in 2006 when it added section 2.1 and changed section 3. Section 34 (26) provides that:
(26) The Municipal Board may,
(a) dismiss the appeal; or
(b) allow the appeal in whole or in part and repeal the by-law in whole or in part or amend the by-law in such manner as the Board may determine or direct the council of the municipality to repeal the by-law in whole or in part or to amend the by-law in accordance with the Board’s order.
[47] The Board’s broad appellate powers therefore indicate a legislative intent that the Board not be confined to the narrow ambit that the moving party argues for, relying in part on the dissent of Matlow J. in Minto Communities Inc., at para. 49, who cited the words of the Minister of Municipal Affairs and Housing on the 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.
[48] This was, with respect, a political speech in the Legislature. The Minister was arguing for a relatively narrow ambit for OMB powers on appeal. That narrow ambit is not reflected in the amended provisions of the Planning Act following the 2006 legislation on which the moving party relies; it was passed, I note, after serious review by government officials and the Legislature.
Analysis
[49] Section 2.1 of the Planning Act requires the Board to “have regard to” the “decision” of the municipal council. What was the “decision” of the municipal council in this case?
[50] If the municipal council had refused the request for an amendment, then it would have been obliged under section 34(10.9) of the Planning Act and section 4 of Regulation 545/06 to provide the applicant with “a written explanation for the refusal,” which would then be useful in an appeal. But the legislation does not require a municipal council to provide such an explanation when it grants an amendment, as it did in this case.
[51] Obviously enough, the essence of the decision is in the amending zoning By-law itself. The By-law preamble expresses no explanatory reasons and the text of the By-law simply sets out the specific exception granted by municipal council. Assuming that the notice of the passing of the amending By-law might also be construed as part of the decision, that too is silent on council’s reasons for permitting the amendment.
[52] The minutes of the meeting of the Town dated November 22, 2011, record the submissions made by various people including the senior planner for the Town, Mr. Train, Robert List (the planner for Mr. Weir), Mr. Weir himself and some others. The minutes are sparse but neither party objects to the contents. The only reference to Members of council is this:
Comments from Members of Council include clarification of Schedule 19 to the Zoning By-Law 94-54 and Special Provision 187, timing of the application being submitted, whether the water is considered a bay or a channel and whether there were any concerns with safety in the navigation of vessels through the area.
There is no transcript of the discussion by Members of the council when they came to consider the amending By-law later in the evening.
[53] I agree with Aston J.’s observation in Minto Communities Inc. 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 to the extent that it was available.
[54] The Member’s reasons for decision disclose what she considered. The provisions of the amending By-law are discussed in paragraphs 2 and 3. She adverted to the report from planning staff at paragraph 5. The factual history leading to the necessity for the amending By-law is accurately set out at paragraphs 5 and 6.
[55] Each party had its own expert planner present evidence to the Board. Robert List testified for Mr. Weir in opposition to the amending By-law. Richard Hunter gave expert land use planning evidence on behalf of Mr. Train, the moving party. The planning evidence is summarized in the decision. That evidence consisted of an exhaustive review of the Official Plan of the District of Muskoka, the Official Plan of the Town of Gravenhurst, and the Comprehensive Zoning By-law of the Town of Gravenhurst. It is noteworthy that Town planning staff were not called as witnesses. As the Member said at paragraph 20: “The Town presented no planning evidence. Council for the Town essentially supported the position taken by Mr. Hunter.”
[56] The moving party submits that the Member did not give sufficient weight to the Town’s decision to pass the amending By-law, but the import of his submission is that the Board erred in not simply endorsing the Town’s decision and dismissing the appeal. This, Mr. Elston submits, is what the words “have regard to” in section 2.1 of the Planning Act require in these circumstances.
[57] That cannot be the law. As I noted above, the Ontario Municipal Board’s broad appellate jurisdiction under the Planning Act continues; it must make an independent decision on whether the proposed amendment represents good planning. In this situation, where the Town gave virtually no guidance as to its reasoning apart from the amending By-law itself, there is very little to which the Board could “have regard”. Here the Board quite properly referred to the amending By-law, to the material before municipal council and to the fulsome evidence adduced by the parties.
[58] The moving party has not satisfied me that the Board failed to adhere to the underlying principles in having regard to council’s decision. I do not find that the Member’s application of the principle is open to substantial doubt as an error of law. This issue does not merit appellate review.
[59] The moving party also proposed a fourth issue of law concerning the Board’s alleged improper reliance on hearsay evidence. While that evidence is referred to in the Member’s review of the evidence, she does not rely on it in her decision. In any event the possible abuse of hearsay evidence is not something that would ordinarily meet the test for leave to appeal to the Divisional Court, and it does not do so in this instance.
[60] The application is dismissed. The parties have agreed that the costs of this motion are to be fixed in the amount of $7,500.00 all inclusive and to be awarded to the successful party.
P.D. Lauwers J.
Released: November 13, 2012