Court File and Parties

CITATION: St. Mary’s Cement Inc. (Canada) v. Minister of Municipal Affairs and Housing, 2012 ONSC 5568

DIVISIONAL COURT FILE NO.: 269/11

DATE: 20121003

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: St. Mary’s Cement Inc. (Canada), Applicant/Responding Party

AND:

Minister of Municipal Affairs and Housing, Respondent/Moving Party

BEFORE: LAX J.

COUNSEL: Christopher P. Thompson and Vanessa Glasser, for the Applicant

Christopher J. Tzekas and John M. Buhlman, for the Respondent

HEARD: September 11, 2012

Endorsement

[1] The applicant on this motion (respondent on the application for judicial review) is the Minister of Municipal Affairs and Housing. The respondent, St. Mary’s, has brought an application for judicial review of two orders made by the Minister. The Minister seeks to quash the application for judicial review on the basis of prematurity and/or delay, or in the alternative, it asks the court to strike paragraphs of the affidavits filed in support of the application. For the reasons that follow, the motion is dismissed.

[2] St. Mary’s Cement, owns property in the City of Hamilton which it is seeking to develop as a quarry. It made applications under the Planning Act, R.S.O. 1990, c. P.13 and also an application under the Aggregate Resources Act. There were public consultations with various Ministries, municipalities and the public between 2004 and 2010. There is and has been local opposition to the quarry.

[3] On April 12, 2010, the Minister issued a Minister’s zoning order (MZO) under the Planning Act and, at the same time, a press release, with the headline: “Province Listens, Stops Proposed Quarry in Hamilton – McGuinty Government Responds to Municipal Request”. A MZO has the effect of restricting the development of the lands as a quarry.

[4] Pursuant to section 47(10) of the Planning Act, a landowner whose lands are subject to a MZO, may request a hearing before the Ontario Municipal Board (OMB) to determine whether the MZO should be revoked in whole, in part, or substantially amended. At the conclusion of that hearing, the OMB is required to make a decision to either amend or revoke the MZO in whole or in part or refuse to do this, “and the Minister shall give effect to the decision of the Board”. On May 10, 2010, St. Mary’s made that request and the Minister referred the matter to the OMB.

[5] On April 1, 2011, the OMB held an initial prehearing conference and scheduled a second prehearing conference for April 29, 2011. However, on April 20, 2011, the Minister gave notice to the OMB of a Declaration of Provincial Interest (DPI) under section 47(13.1) of the Planning Act which provides:

Minister’s notice re matters of provincial interest

(13.1) If the Municipal Board has been requested to hold a hearing as provided for in subsection (10) and the Minister is of the opinion that a matter of provincial interest is, or is likely to be adversely affected by the requested amendment or revocation, the Minister may so notify the Board in writing ….

[6] If the OMB receives notice from the Minister under subsection (13.1), subsections 13.4 and 13.5 provide in part:

(13.4) … the decision of the Board is not final and binding with respect to the amendment or revocation of provisions identified in the notice, until the Lieutenant Governor in Council confirms the decision in that respect.

(13.5) The Lieutenant Governor in Council may confirm, vary or rescind the Municipal Board’s decision …

[7] The OMB held its second prehearing conference on April 29, 2011, but in light of the DPI, the parties asked the Board for additional time to determine how the matter should proceed. The OMB directed St. Mary’s to inform the Board and the parties how it intended to proceed and in its Decision dated May 6, 2011, said:

Should [St. Mary’s] seek to pursue the matter in court, the Board will adjourn this process sine die, at which time, the late-September hearing date would likely be postponed or cancelled.

[8] The Ministry was represented at the prehearing conference and did not object to this approach.

[9] On May 13, 2011, St. Mary’s advised the OMB and the parties that it intended to bring an application for judicial review of the MZO and DPI. On May 26, 2011, the OMB informed the parties that its proceedings would be adjourned sine die and it cancelled the hearing scheduled to commence on September 26, 2011. The Ministry did not take any steps or appeals with respect to that decision. The next day, on May 27, 2011, St. Mary’s issued the application for judicial review.

[10] St. Mary’s alleges, amongst other things, that the MZO and DPI were issued for purposes that are collateral, extraneous and irrelevant to the ambit and purpose of the Planning Act, and, in the case of the DPI, that it was not issued within the time limits prescribed by the Act. In the result, St. Mary’s alleges that its right to a fair hearing before the OMB has been compromised.

Delay

[11] Applications for judicial review may be dismissed for delay by a single judge, but unless it is plain and obvious, a motions judge, as a general rule, should leave the issue for the panel for the reasons given by Ferrier J. in 1520437 Ontario Inc. v. Ontario Pipe Traders Council 2010 ONSC 6713 (Div. Ct.). Conversely, if it is plain and obvious that a motion to dismiss for delay has no chance of success, it is my view that it is appropriate and desirable for this to be determined by a single judge. It is not a sensible use of judicial resources to leave this for the panel.

[12] The Minister takes the position that the application for judicial review of the MZO should be dismissed for delay as it was not commenced for over a year after the MZO was issued. It nonetheless acknowledges that had an application to judicially review the MZO been brought sooner, the Minister would have sought to quash it for prematurity. The Minister submits that “St. Mary’s had no reason to delay until the DPI in commencing the application for judicial review of the MZO”. In my view, this is a nonsensical argument.

[13] Until the Minister issued the DPI on April 29, 2011, it is clear from the materials that St. Mary’s had no intention of seeking judicial review of the MZO. How then could it have sought judicial review of the MZO sooner? The first prehearing conference at the OMB was only held on April 1, 2011 and this is when dates in September were set aside for the hearing. St. Mary’s was proceeding with its statutory right to a hearing before the OMB when the DPI was issued on April 20, 2011. According to St. Mary’s, this profoundly changed the situation as the application to have the MZO revoked would no longer be decided by the OMB (with an appeal to the Divisional Court on a question of law), but instead, by the Lieutenant Governor in Council with no right to appeal. The only manner in which St. Mary’s can challenge the DPI is by way of an application for judicial review. That application was commenced within five weeks of the issuance of the DPI. There can be no issue of delay with respect to the part of the application that challenges the issuance of the DPI.

[14] The DPI and the MZO are linked to one another and the delay in commencing the application for judicial review of the MZO is entirely explained by the sequence of events I have described. None of the factors that resulted in orders of single judges dismissing for delay are present here. See, Ransom v. Ontario, 2010 ONSC 3156 (Div. Ct.), per Molloy J., aff’d 2010 ONSC 5594 (Div. Ct.), Rosenhek v. Ontario, 2011 ONSC 3785 (Div Ct.), De Pelham v. Ontario (Human Rights Tribunal), 2011 ONSC 7006 (Div. Ct.), Canadian Chiropractic Assn. v. Lewis Inquest (Coroner of), 2011 ONSC 6014 (Div. Ct.).

[15] The only panel decision I was referred to on the issue of delay is Gigliotti v. Conseil d’Administration du Collège des Grands Lacs, 2005 23326 (ON SCDC), [2005] O.J. No. 2762 (Div. Ct.) and it is often cited. In that case, the length of the delay was 29 months in commencing and perfecting the original application. The court found that the delay had caused “enormous prejudice”.

[16] In my view, this is a clear case where there has been no unexplained or excessive delay. The moving party has pointed to no prejudice arising from the delay. This leads me to conclude that the motion to dismiss for delay should be dismissed. There is no reason to refer this to the panel.

Prematurity

[17] Applications for judicial review may also be quashed for prematurity by a single judge, but as with the issue of delay, a single judge should be cautious about exercising this jurisdiction, except in the clearest of cases. This is not one of them. In fact, I was referred to only one decision where a single judge of this court quashed an application for judicial review on the basis of prematurity.

[18] In Haigh v. College of Denturists of Ontario, 2011 ONSC 2152, Aston J. provides a helpful review of the law on this question. In that case, there were three motions before the court. Aston J. would have referred to the panel the motion to quash for prematurity except that (1) the parties were content that he hear it and (2) there was some overlap with the other two motions that were properly brought before a single judge. In thorough reasons, Aston J. concluded that the applicant would not be denied a remedy if his application for judicial review was quashed. This is because Haigh had a full right of appeal at the end of the disciplinary process in issue, on questions of both fact and law. This is quite a different situation.

[19] The Minister relies on the decision in Duffin Capital Corp. v. Ontario (Minister of Municipal Affairs and Housing), 2005 O.J. No. 2108 (Div. Ct.), aff’d [2006] O.J. No. 2655 (C.A.), leave to appeal denied, [2006] S.C.C.A. No. 383. I find it unnecessary to review this decision or indeed the other numerous authorities to which I was referred except to point out that almost without exception, none were decided by a single judge of the Divisional Court.[^1]

Affidavit Evidence

[20] The moving party attacks various portions of the affidavits filed by the applicants. The contents are said to constitute hearsay, opinion or argument. In a Schedule attached to the Factum, the impugned paragraphs are reproduced and a reason is provided for the request to strike.

[21] Affidavit evidence may be admitted on judicial review in accordance with the Keeprite standard to show an absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by mere reference to the record: Re Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. 1980 1877 (ON CA), [1980] O.J. No. 3691, 29 O.R. (2d) 513 (Ont. C.A.). In my view, the panel hearing the application will be in a better position than I am to determine whether the impugned portions meet the standard. Also, they will be in a better position to determine the qualifications of the affiants to give expert opinion evidence. As in Hanna v. Ontario (Attorney General) 2010 ONSC 4058 (Div. Ct.), where similar objections to affidavit material were raised, these issues are best left to be determined following cross-examinations, which have yet to be held.

[22] Courts are generally reluctant to deal with issues of admissibility and relevance of evidence in advance of the hearing on the merits (see, Hanna, at para. 7 and cases cited there). Moreover, striking portions of the affidavits may disrupt the narratives, making it more difficult for the panel. There is no advantage to be had by striking portions of the affidavits at this stage. I am satisfied that the panel will be able to distinguish between those portions of the affidavits, if any, that are impermissible hearsay, opinion or argument. In that respect, they will be assisted by the helpful chart prepared by counsel for the Minister and will disregard those portions, if any, that the panel finds improper.

[23] The motion is therefore dismissed with costs in the all inclusive amount of $13,500.

LAX J.

Date: October 3, 2012

[^1]: The exceptions are Haigh, discussed above and Sears Canada Inc. v. Davis Inquest (Coroner of), [1997] O.J. No. 1424 (Div. Ct.), per Adams J. In Sears, the court did not quash the application on the basis of prematurity.