Court File and Parties
Citation: Maxwell v. Ottawa (City), 2012 ONSC 7224 Court File No.: 12-DC-1861 Date: 2012-12-18
Ontario Superior Court of Justice Divisional Court Justice Robert J. Smith
Between: James Maxwell Appellant (Moving Party)
– and –
City of Ottawa Respondents (Responding Party)
Counsel: D. Kenneth Gibson, for the Appellant (Moving Party) Timothy C. Marc, for the Respondents (Responding Party)
Heard: October 25, 2012 (Ottawa)
Reasons for Decision on Motion for Leave to Appeal
[1] The appellant James Maxwell (“Maxwell”) seeks leave to appeal to the Divisional Court from the decision of the Ontario Municipal Board (the “Board” or “OMB”) dated August 22, 2012. The Board dismissed an appeal by Maxwell who sought to include his lands in the Board’s Official Plan Amendment (“OPA”) No. 76 for the City of Ottawa (the “City”). The decision of the Board had the effect of excluding Maxwell’s property from the expansion of the urban boundary of the City of Ottawa approved in OPA No. 76.
[2] Maxwell submits that the Board made the following errors in law:
(a) it imposed an additional condition precedent for Maxwell’s lands to be considered which was not required for other lands, namely that Maxwell was permitted to prepare a noise study for consideration by the Board. The Board held that if it found that the Maxwell lands were not suitable for residential development on account of noise impacts, then his lands would not be considered for inclusion within the Urban Boundary through OPA 76. This is what occurred;
(b) it accepted the opinion evidence of the City’s expert, Mr. Gidamy, over that of Maxwell’s expert and found that the noise levels from the Department of National Defence (“DND”) rifle range and explosives range exceeded provincial noise standards for residential development;
(c) it awarded zero points for the distance of Maxwell’s land to a Mainstreet or Mixed‑Use Centre. The Board relied on the evidence of planners who testified that the distance to Maxwell’s lands should be measured from a point in the middle of the pink area of the map denoted as a mixed use center, instead of the closest exterior point on the pink area; and
(d) it determined that there was only assured connectivity to the community from Maxwell’s lands in two directions.
[3] The City submits that:
(a) the Board did not make an error of law and submits that it made findings of fact or mixed fact and law which are not subject to appeal;
(b) the standard of review is reasonableness as the Board is a specialized tribunal which had evidence to support its findings. As a result, there are no grounds to doubt the reasonableness or correctness of the Board’s decision; and
(c) the court should show deference to the weight the Board gave to competing the expert witnesses.
[4] The following issues must be decided:
(1) Did the Board make an error of law when it allowed Maxwell’s appeal of the City’s decision to exclude his lands from the properties it selected to be considered, provided Maxwell could satisfy it that the noise levels affecting Maxwell’s lands did not make them unsuitable for residential development?
(2) Did the Board make an error of law when it found that the Maxwell lands were unsuitable for residential development due to noise levels affecting his lands?
(3) Did the Board commit an error of law when it awarded zero points for the distance to a Mainstreet or Mixed‑Use Centre and only two points for connectivity for Maxwell’s lands?
Analysis
[5] Section 96 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 provides for an appeal to the Divisional Court, with leave on a question of law. Maxwell seeks leave to appeal to the Divisional Court.
[6] The test granting the leave from a decision of the Board was set out in Rosedale Golf Association Ltd. v. Degasperis, (2004) 189 O.A.C. 176 at para. 3 as follows:
The test on a motion for leave from a decision of the OMB is whether there is some reason to doubt the correctness of the Board's decision, and the proposed appeal raises a point of law sufficient to warrant the attention of the Divisional Court (see Juno Developments (Parry Sound) Ltd. v. Parry Sound (Town) (1997), 99 O.A.C. 95 (Div.Ct.) at p. 97 and Eastpine Kennedy-Steeles Ltd. v. Markham (Town) (2002), 31 M.P.L.R. (3d) 213. The question of law involved need not be of general importance, but rather may be limited to matters relevant to the parties while raising a question of sufficient importance to merit the court's attention.
[7] In Essex (City) v. Material Handling Problems Solvers Inc., [2003] O.J. No. 4619 (Ont. Div. Ct.) at para. 4, Blair J. stated as follows:
Where the standard of review is reasonableness - as it would likely be here, given the O.M.B.’s specialized expertise in the developing, interpreting and applying its own policies - it may be that the second test above is more aptly worded as: Is there reason to doubt the reasonableness of the Board’s decision?
[8] In Toronto (City) v. 2059946 Ontario Ltd., 228 O.A.C. 143 (Ont. Div. Ct.) at para. 3, Lax J. stated:
Doubt as to correctness must be based on the totality of the decision and the Board's order and when considering leave to appeal, some measure of deference commensurate with the degree of independence and expertise of the Board is required …
[9] I agree with the Rosedale formulation of the test with the additional factor outlined by Lax J., namely that some measure of deference should be given to the Board commensurate with its independence and specialized expertise in the area of land use planning and its interpretation of its home statute.
Issue #1 Did the Board make an error of law when it allowed Maxwell’s appeal of the City’s decision to exclude his lands from the properties it selected to be considered, provided Maxwell could satisfy it that the noise levels affecting his lands did not make them unsuitable for residential development?
[10] Maxwell’s main argument for seeking leave to appeal is that the Board committed an error in law by adding an extra condition for his lands, namely requiring his land to meet a noise criteria. Maxwell submits that adding the extra noise criteria for his lands is not consistent with the provincial plans as required by s. 3(5) of the Planning Act, R.S.O. 1990, c. P.13.
[11] In its April 4, 2012 decision, the Board amended Ottawa’s Official Plan and adopted the 16 criteria it would use to evaluate lands for inclusion within the City Boundary. In the same April 4, 2012 decision, the Board granted Maxwell’s appeal from the City’s decision to exclude his lands from the list of properties to be considered for inclusion, and granted his request to prepare a noise study for the Board’s consideration. The Board agreed to consider Maxwell’s lands for inclusion within the Urban Boundary, if it found that his lands were not unsuitable for residential development due to the impact of noise.
[12] The order from the Board’s April 4, 2012 decision was signed on June 12, 2012 which amended Official Plan Amendment 76 (“OPA 76”) by approving the methodology to be used in evaluating the parcels of lands being considered for inclusion within the City boundaries. The methodology required the Board to consider and allocate points to each parcel of land selected by the City based on 16 criteria set out in the Attachment. If a parcel of land received a score of 48 points or more, it would be included within the Urban Boundary of the City.
[13] Maxwell’s lands are located next to the DND rifle and explosives range. The City had initially included the Maxwell lands for consideration for inclusion within the City Boundary in its preliminary reports prepared in January and again in the second report prepared in March of 2012. However, after DND filed an objection with the City, claiming there was excessive noise from its explosives range, the City decided not to include the Maxwell lands in the final list of properties to be considered for inclusion in Phase 2B by the Board.
[14] Maxwell appealed to the OMB from the City’s decision excluding his lands from the list and asked the Board for permission to file a noise study for his lands. The OMB granted Maxwell’s request to file a noise study and agreed to hold a hearing to determine whether the noise impacts of the DND rifle and explosives range made the Maxwell lands unsuitable for residential development.
[15] The Board Order of June 12, 2012 permitted Maxwell to prepare a noise study which would be considered at the Phase 2B hearing. If the Board found that on account of noise impacts that the Maxwell lands were not suitable for residential development then the lands would not be considered by inclusion within the City’s Urban Boundary.
[16] Maxwell argues that the Board made an error in law by granting his request to file a noise study because a noise study was not part of the 16 criteria which were applied to the other parcels of land that the City selected for consideration for inclusion by the Board.
[17] Maxwell was successful on his appeal as the Board granted his request to file a noise study and agreed to consider his lands for inclusion in Phase 2B if it found the noise impacts did not make them unsuitable for residential development.
[18] In its decision of April 4, 2012, the Board stated as follows at pages 15 and 16:
Mr. Maxwell was in the evaluation in the first 2 rounds until the DND position was put forward. There are legitimate land use planning compatibility grounds – in particular of noise that led to the screening and of the Maxwell property. …
There has been no proven issue under section 61 of the Planning Act as to due process. Mr. Maxwell had the opportunity to address the Ottawa public planning process and his counsel did so. He now has the opportunity to address the noise issue before the Ontario Municipal Board in this section 26 review or to look to the next section 26 review or to look to the next section 26 review now commenced and due for completion in 2014.
[19] I find that there is no reason to doubt whether the Board made an error in law regarding s. 3(5) of the Planning Act, supra, when it granted Maxwell’s request to file a noise study and agreed to determine at a hearing whether the noise impact made Maxwell’s lands unsuitable for residential development. The Board did not impose an additional (17th) criterion to be met by the Maxwell lands, in addition to the 16 criteria applied to other parcels that had been selected by the City on the list of properties for consideration for inclusion by the Board.
[20] Maxwell’s lands never made it onto the list of properties that were to be considered by the Board and to which the 16 criteria were applied. Rather, I find the Board granted Maxwell’s appeal of the City’s decision to exclude his lands from the properties selected by it for consideration and allowed Maxwell to file a noise study and agreed to hold a hearing to determine if his lands should have been included in the list prepared by the City for consideration by the Board. If the Board had been satisfied that the lands were suitable for residential development it would have considered Maxwell’s lands and applied the same 16 criteria to them as it did for all other parcels on the list selected by the City.
Disposition of Issue #1
[21] I can see no reason to doubt the correctness of the Board’s decision to include Maxwell’s lands on the list of properties prepared by the City for consideration if the noise study satisfied it that Maxwell’s lands were suitable for residential development. I would also give deference to the Board as its decision is within the Board’s specialized planning expertise.
Issue #2 Did the Board make an error of law when it found that the Maxwell lands were unsuitable for residential development due to noise levels affecting his lands?
[22] Maxwell alleges that the Board made an error in law by accepting the evidence of Mr. Gidamy, the City’s noise expert, which he submits was based on no evidence at all, over that of Mr. Maxwell’s noise expert who had prepared a noise study. The City submits that there was evidence on which Mr. Gidamy could rely to give his opinion, that expert witnesses can rely on hearsay evidence to form their opinions, and that accepting the opinion evidence of one expert is a finding of fact by the Board based on evidence called at the hearing and is not an error in law. I agree with the City’s submissions.
[23] Both Maxwell’s noise expert and Mr. Gidamy relied on the data in a letter from DND to Maxwell’s noise consultants which described the number of grenades exploded and the number of rifle shots fired on the range. The weighing of evidence and weight to be given to expert testimony by a specialized tribunal is a finding of fact and not a determination of a point of law.
[24] In its decision of August 22, 2012, at page 14, the Board stated that “… the Appellant evidence does not go far enough to describe the attenuation necessary to permit residential development and meet Provincial Guidelines”. This is a finding of fact and is not an error of law and, as a result, is not subject to appeal to the Divisional Court.
Disposition of Issue #2
[25] I find this that the Board did not make not an error of law when it found that Maxwell’s lands were unsuitable for residential development due to noise levels rather made a finding of fact to which I give deference.
Issue #3 Did the Board commit an error of law in awarding zero points for the distance to a Mainstreet or Mixed‑Use Centre and only two points for connectivity for Maxwell’s lands?
(a) Criterion Number 7: Distance to Mainstreet or Mixed-Use Centre
[26] The expert planning witnesses used different methods to measure the distance from Maxwell’s lands to a Mainstreet or Mixed-Use Centre. One measured to the nearest edge of the pink shaded area on the map and the other measured to a point in the centre of the pink shaded area on the map of the Mixed Use area. The Board preferred the evidence of the expert who measured the distance to the centre of the pink shaded area on the map. I find that the Board’s finding on this question was one of fact or mixed fact and law and was within a reasonable range of possible interpretations of how to measure these distances.
(b) Criterion Number 11: Connectivity
[27] The Board’s finding that zero points should be awarded to the Maxwell lands under the criterion of connectivity is also a finding of fact or mixed fact and law and does not constitute an error of law.
Disposition
[28] For the above reasons, the application motion for leave to appeal to the Divisional Court is dismissed.
Costs
[29] If the parties are unable to agree on costs, the City shall have ten (10) days to make submission on costs. Maxwell shall have ten (10) days to respond, and the City shall have seven (7) days to reply.
R. Smith J.
Released: December 18, 2012