Yonge Bayview Holdings Inc. et al.,
2013 ONSC 2252
DIVISIONAL COURT FILE NO.: 555/12
DATE:20130514
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Harvison Young J.
BETWEEN:
The Corporation of The Town of Richmond Hill
Moving Party
– and –
Yonge Bayview Holdings Inc. et al.
Respondents
Barnet H. Kussner, for the Moving Party
Mark Flowers, Ira T. Kagan, Jeffrey E. Streisfield, Roslyn Houser, Barry Horosko and Caterina Facciolo, Aaron I. Platt, Richard R. Arblaster, for the Respondents
HEARD: April 4, 2013
[1] The applicant, the Corporation of the Town of Richmond Hill (“Town”), seeks leave to appeal from a decision of the Ontario Municipal Board. This decision arose from a preliminary motion that the Town had brought in proceedings associated with appeals of the Town’s proposed new Official Plan, including the policy that deals with a proposed alternative parkland dedication requirement (Policy 3.1.8.2).
[2] For the reasons which follow, I conclude that the motion for leave should be dismissed on the grounds that it is premature, and that the circumstances do not constitute extraordinary or exceptional grounds that justify the bifurcation or fragmentation of the proceedings that would result. Accordingly, it is not necessary to consider whether the motion for leave should be dismissed on the basis of the tests set out at Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and section 96 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 (“Act”).
Background
[3] The applicant Town seeks leave to appeal a preliminary motion it brought before the Board regarding the correct statutory interpretation of the provisions of the Act that pertain to parkland dedication. These provisions are authorized by statute as a condition of development or redevelopment of land pursuant to section 42 of the Planning Act, R.S.O. 1990, c. P.13. The Town submits that the interpretation of these provisions is a legal issue that is suitable for resolution in advance of the full hearing, as it is a discreet issue.
[4] The respondents disagree, submitting that an appeal at this stage, in advance of the full hearing relating to the merits of the alternative requirement, would fragment or bifurcate the Board’s hearing.
[5] The relevant portions of s. 42 provide as follows:
Conveyance of land for park purposes
- (1) As a condition of development or redevelopment of land, the council of a local municipality may, by by-law applicable to the whole municipality or to any defined area or areas thereof, require that land in an amount not exceeding, in the case of land proposed for development or redevelopment for commercial or industrial purposes, 2 per cent and in all other cases 5% of the land be conveyed to the municipality for park or other public recreational purposes. …
Alternative requirement
(3) Subject to subsection (4), as an alternative to requiring the conveyance provided for in subsection (1), in the case of land proposed for development or redevelopment for residential purposes, the by-law may require that land be conveyed to the municipality for park or other public recreational purposes at a rate of one hectare for each 300 dwelling units proposed or at such lesser rate as may be specified in the by-law.
Official plan requirement
(4) The alternative requirement authorized by subsection (3) may not be provided for in a by-law passed under this section unless there is an official plan in effect in the local municipality that contains specific policies dealing with the provision of lands for park or other public recreational purposes and the use of the alternative requirement.
[6] In the main application, the parkland dedication policies set out in s. 3.1.8. of the Town’s Official Plan have been appealed by the respondents. The relevant portions of this provision read as follows:
An interconnection of parks and urban space system shall be planned with the long term objective of providing access to the system within walking distance to all dwellings within the settlement areas.
Dedication of lands for park and other public recreational purposes shall be required as a condition of development in accordance with Sections 42, 51.1 and 53 of the Planning Act. The amount of land required and the cash-in-lieu component, if any, shall be determined at the sole discretion of the Town in accordance with the statutory requirements and the following criteria:
a. For residential development the greater of the following:
i. 5% of the land proposed for residential development; or
ii. 1 hectare of land for each 300 dwelling units proposed for development.
b. For commercial or employment development, 2% of the land proposed for development.
[7] The policy provides additional criteria (s. 2c. to 2g.) which address the application of the parkland policies to land uses other than residential or commercial development. The policy at issue is s. 3.1.8.2. a. ii as set out above which provides for the alternative requirement for parkland dedication at 1 hectare per 300 dwelling units proposed for development.
[8] The applicant Town submitted that the central issue before this Court is one of jurisdiction, that is, whether the Board, in an Official Plan, can “set” the alternative park dedication rate and whether in doing so, it violates the clear wording of s. 42(1), which provides that the alternative rate is set by council through a by-law, although it cannot do so unless there is an Official Plan in effect that contains “specific policies dealing with the provision of lands for park or other public recreational purposes and the use of the alternative requirement” (s.42(4)).
[9] The respondents submit that this is a restatement of the preliminary motion which the applicant brought before the Board and which the applicant framed as follows:
A determination by the Board that when a municipality enacts Official Plan policies for the purpose of satisfying the criterion under sections 42(4) and 51.1(2) of the Act that it have such policies before enacting a by-law or imposing a condition of subdivision approval authorizing the alternative parkland dedication requirement mandated by subsections 42(3) and 51.1(2) – namely, one hectare for each 300 dwelling units or “such lesser rate” as may be specified in the implementing by-law (under ss. 42(3)) or determined by the municipality (under ss. 51.1(2)) – the municipality is not obligated to engage in a planning analysis or establish a planning rationale at the Official Plan level in order to justify imposition of the required Official Plan policies dealing with the alternative requirement, or setting the requirement at the statutory authorized rate.
[10] The respondents argue that this was a procedural motion and was properly understood as such by the Board.
The Board’s Decision
[11] The Board began by stating that the applicant Town was seeking a preliminary determination that the Town is
…obligated to engage in a planning analysis or establish a planning rationale at the official plan level to justify the use of the alternative parkland dedication rate as it is a rate prescribed by the Planning Act (“Act”). (Reasons for Decision, para. 1)
[12] It went on to summarize the respondents’ position as follows:
The parties who appealed the parkland dedication policies filed responding material opposing the relief sought. Their collective position was that they are entitled to explore the rationale for all official plan policies under appeal, including the policies that set the alternative parkland dedication rate. (Reasons for Decision, para. 1)
[13] The Board characterized the issue before it as
…whether s. 3.1.8.2.ii of parkland dedication policy 3.1.8, which authorizes the use of the alternative requirement, can be explored at the hearing or whether, as the Town contends, it is intended to merely reflect the provisions of the Act and is not open for debate at the official plan level. (Reasons for Decision, para. 4)
[14] In essence, the Town’s position both at the Board on the preliminary motion and before this court is that the fact that it is ultimately up to Council to set a rate by-law means that there can be no debate on the planning merits of the alternative requirement or a lesser rate in the context of an official plan appeal. The Board found that s. 42(3) of the Act does not preclude a municipality from including policies (or the Board approving, on appeal) in an official plan that provide for an alternative parkland dedication rate. It rejected the Town’s argument that it was open to explore the “use” in the official plan, but not the “rate”. The Board held this distinction would “serve no useful purpose and unduly restrict the ability of the appellants to test the planning rationale for the Town’s policies as they relate to parkland dedication” (Reasons for Decision, para. 17).
[15] The Board concluded as follows at para. 26 of its Reasons:
If the position taken by the Town is adopted, then there would be no ability or discretion for any municipal Council to set a rate in its official plan. The Board would effectively be directing that specific rates in official plans run afoul of s. 42 of the Act. Yet, some municipalities have chosen to set out alternative rates in both their official plans and implementing by-laws. In those instances, would municipalities be required to amend their official plans and remove specific rates? In the Board’s view, the Town is urging the Board to adopt an unduly restrictive interpretation of the Act which would result in limiting what can be included in the parkland dedication policies of any official plan. The provisions of s. 42 of the Act are not that restrictive. Simply put, when read together, s. 42(3) and s. 42(4) do not say that a specific rate cannot be identified in an official plan. The Board will not read such a restriction into the Act and thereby limit the flexibility of municipalities to determine what detail they wish to provide at the official plan level.
Prematurity
[16] It is common ground that, as a general rule, this court will not fragment proceedings before administrative tribunals by hearing appeals from interlocutory decisions, absent “exceptional or extraordinary circumstances”: see Ontario College of Art v. Ontario (Human Rights Commission) (1992), 1993 3430 (ON SCDC), 11 O.R. (3d) 798, 99 D.L.R. (4th) 738 (Div. Ct.) at paras. 4 and 6.
[17] Likewise, this Court has repeatedly indicated the need to avoid a “piecemeal approach” to judicial review of administrative action, recognizing that fragmentation causes both delay and interruptions in administrative proceedings. Instead, it is preferable to allow such matters to run their full course before the tribunal and then, if necessary, consider all legal issues arising from the proceedings at their conclusion: Ontario College at para. 6. In the same vein, this Court has recognized that matters raised at a preliminary stage may no longer be of interest after the conclusion of an administrative tribunal’s proceeding.
[18] Moreover, it is generally advisable to consider the issues within the context of a full evidentiary record: Ontario College, at para. 7; see also Liquor Control Board of Ontario v. Lifford Wine Agencies Limited (2005), 2005 25179 (ON CA), 76 O.R. (3d) 401 (C.A.) at para. 42.
[19] The parties also recognize that there may be exceptions to this general rule, citing Home Depot Holdings Inc. v. Toronto (City), 2010 ONSC 1669, 64 O.M.B.R. 253 (Div. Ct.), as an example of a case in which the Divisional Court heard an appeal despite the argument that it was premature.
[20] In Home Depot, Sachs J. granted leave to appeal despite the fact that the site-specific merits of Home Depot’s proposed development had yet to be considered and decided upon by the Board. She stated at para. 23 of her decision:
There is reason to believe that this may be one of those extraordinary cases where it would be appropriate for the Divisional Court to provide guidance on the issue before all of the proceedings before the Board are completed. The question at issue in Phase 1 is one that will not be affected by any of the evidence that is led on Phase 2. Further, the answer to the question could be determinative of the proceedings. The City’s appeal raises a fundamental question about the application of the Growth Plan and, specifically, what constitutes a “conversion” within the meaning of that Plan. Guidance from this court on appeal may not only result in a more economic process in this proceeding, but may also save time and expense in other applications that may engage the same issue. Thus, while the issue of prematurity can be revisited by the panel hearing the appeal, I am satisfied that the opportunity to address the matters raised in this appeal should not be foreclosed at this stage.
[21] The preliminary issue in that case was a threshold issue that could be determined quite distinctly before the question of the site-specific merits of Home Depot’s development proposal.
[22] In agreeing with Sachs J. on the prematurity issue, the Divisional Court restated the general principle that it is reluctant to hear applications for judicial review, citing Maplehurst Bakeries Inc. v. Brampton (City) (1999), 1999 19928 (ON SCDC), 44 O.R. (3d) 667 (Div. Ct.) and Eastpine Kennedy-Steeles Ltd. v. Markham (Town) (2000), 131 O.A.C. 137 (Div. Ct.) as examples of cases in which it has refused to hear appeals on the merits while the proceedings were still continuing before the Board.
[23] I do not agree that this is a case like Home Depot in which there was a “threshold issue”. Although the applicant has tried to cast the issue as set out above as a discreet preliminary issue, I do not believe that in the circumstances of this case, it is possible to separate the preliminary issue from the issues on the merits to the extent which the applicant submits.
[24] While this motion does concern the relationship between ss. 42(1) and (4) of the Act, this is not a case where, in my view, there are exceptional reasons to permit the issues raised here by the applicant to be determined before the appeals on the parkland dedication policies are decided.
[25] First, the applicant Town insists that the Board cannot be allowed to proceed and “set” a rate. However, it is not at all clear at this point that it will do so, or that, if it did, it would be contrary to that proposed by the City. There has not yet been a hearing of the appeals of the Town’s proposed alternative parkland dedication policies and the Board has not yet exercised its powers under s. 17(50) of the Act to approve, modify and approve, or refuse to approve the Town’s policies.
[26] Second, given the relationship between the two provisions of the Act, and the somewhat nuanced roles contemplated for City Council in enacting by-laws on one hand and the Board in adjudicating the appeals in relation to the official plan, on the other, I do not see the “preliminary” issue as framed by the Town as one that can be properly understood in the abstract. The Town submits that the proper interpretation of the Act is that the Board may consider the issue of the “use” of an alternative rate, but it may not “set” or articulate a rate. While it may be the case that the hearing will be longer than it would be if the Town’s position on the scope of the evidence relating to the rate had been accepted, this is a case in which having a full evidentiary record for the consideration of this question is desirable.
[27] The issue of the relationship between the two provisions, and the role of Council and the Board in considering an official plan appeal is not, as was the issue of “conversion” in Home Depot, a discreet or threshold issue that can be easily severed from the issues at the heart of the merits of the issues before the Board relating to alternative parkland dedication requirements. In Home Depot, the Court concluded that the “question at issue in Phase 1 is one that will not be affected by any of the evidence that is led in Phase 2”. In this case, the very question raised by the Town in its preliminary motion to the Board concerned the nature and volume of the evidence it would have to lead in response to the appeals of Policy 3.1.8.2 of its official plan.
[28] Accordingly, the application for leave to appeal is premature and is dismissed.
[29] If they are unable to agree as to costs, the parties shall exchange written submissions on a timetable to be agreed upon themselves and filed with the court within 30 days of the release of this endorsement.
Harvison Young J.
Released: May 14, 2013
Yonge Bayview Holdings Inc. et al.,
2013 ONSC 2252
DIVISIONAL COURT FILE NO.: 555/12
DATE: 20130514
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Harvison Young J.
BETWEEN:
The Corporation of The Town of Richmond Hill
Moving Party
– and –
Yonge Bayview Holdings Inc. et al.
Respondents
REASONS FOR JUDGMENT
Released: May 14, 2013