CITATION: The Regional Municipality of Waterloo and Ministry of Municipal Affairs and Housing, 2013 ONSC 5499
DIVISIONAL COURT FILE NO.: DC 13-437 ML
DATE: 2013-08-29
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
The Regional Municipality of Waterloo
Appellant
Brian Duxbury for the Appellant Regional Municipality of Waterloo
- and -
Ministry of Municipal Affairs and Housing, Activa Holdings Inc., 2140065 Ontario Inc., 1589805 Ontario Inc., Stonefield Properties Corp., Northgate Land Corp., Hallman Construction Limited and Gatestone Development Corp., Mattamy Development Corporation, William Gies, Plains Westmount Limited, 2163846 Ontario Inc., Westside Property Owners Group and The INCC Corp., Ontario Stone, Sand and Gravel Association, Lea Silvestri Investments Ltd., and 1541179 Ontario Ltd., Madison Homes Inc., Springbank Investments Inc., Kirtaff Holdings Inc., Alfred And Rita Kutajar, Liusa and Willi Kellner and Breslau Properties Inc., Connie and Robert Bogusat, Township of Woolwich, Country of Wellington, Hardy Bromberg, Brenda and Rusty Brissette, Big Spring Farms Limited Becker Estates Inc., Rio Can, Empire Communities, City of Kitchener, Hunder Development Inc., Gord Doehn and Karen Doehn
Robert Howe, Tom Friedland and Ian Andres for Respondents Activa Holdings Inc., 2140065 Ontario Inc., Stonefield Properties Corp., Northgate Land Corp., Hallman Construction Limited and Gatestone Development Corp.
Denise Baker for Respondent Mattamy Development Corporation
Stan Floras for Respondent The Ontario Municipal Board
Respondents
HEARD: August 22, 2013
PARAYESKI, J.
RULING
[1] The appellant sought to adjourn its motion for leave to appeal a decision of the Ontario Municipal Board issued on January 21st, 2013. After hearing the motion to adjourn on August 22nd, 2013, I granted the relief sought, on terms, for written reasons to follow. These are those reasons.
[2] On January 21st, 2013 the Ontario Municipal Board issued a decision following a hearing related to the appellant Municipality’s Official Plan. The Municipality instructed its solicitor to seek leave to appeal that decision to the Divisional Court. The solicitor brought the requisite motion for leave, which motion was scheduled to be heard as a long motion at Hamilton.
[3] It became known to the appellant that a witness who gave evidence at the hearing before the Ontario Municipal Board had also made a presentation to at least some board members on April 3rd, 2012. When counsel for the appellant sought clarification and confirmation as to whether the board members who were on the relevant hearing panel were at the presentation, the chair of the Board responded, cryptically in my view, with the following sentence in her letter of July 26th, 2013: “All Board Members were expected to attend this meeting.” No representative of the appellant Municipality was at that presentation.
[4] The appellant’s response was to resolve to commence an application for judicial review in respect of the procedural fairness of the Board hearing that led to its decision of January 21st, 2013. That resolution was passed by the Council of the Regional Municipality of Waterloo on August 13th, 2013.
[5] The ultimate relief sought by the appellant by means of its application for judicial review is a declaration that the proceeding before the Ontario Municipal Board was void ab initio. Such a declaration, if granted, would render the very decision in respect of which the appellant is seeking leave to appeal a nullity.
[6] I see no practical merit in investing limited court resources in hearing a long motion for leave to appeal (and if leave were to be granted, hearing the appeal itself) in regard to a decision which, potentially at least, may be declared a nullity. The parties which opposed the motion to adjourn the underlying leave to appeal motion raised a number of arguments about the timeliness, procedural correctness, and fundamental merit of the proposed judicial review application. No doubt all of those issues, and likely more, will be addressed when the application is heard. Those issues were not before me, and it would not be appropriate for me to comment upon them. I will say, however, that they do not change my observation regarding the use of court resources. This court always retains jurisdiction to control its own process, and that is the basis of my ruling.
[7] In order to reduce the loss of time occasioned by the appellant’s change in tack, I order that the application for judicial review must be issued on or before September 10th, 2013. The parties had agreed upon costs, and the terms of that agreement are reflected in my endorsement.
Parayeski, J.
Released: August 29, 2013
CITATION: The Regional Municipality of Waterloo and Ministry of Municipal Affairs and Housing, 2013 ONSC 5499
DIVISIONAL COURT FILE NO.: DC 13-437 ML
DATE: 2013-08-29
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
The Regional Municipality of Waterloo
Appellant
- and –
Ministry of Municipal Affairs and Housing, Activa Holdings Inc., 2140065 Ontario Inc., 1589805 Ontario Inc., Stonefield Properties Corp., Northgate Land Corp., Hallman Construction Limited and Gatestone Development Corp., Mattamy Development Corporation, William Gies, Plains Westmount Limited, 2163846 Ontario Inc., Westside Property Owners Group and The INCC Corp., Ontario Stone, Sand and Gravel Association, Lea Silvestri Investments Ltd., and 1541179 Ontario Ltd., Madison Homes Inc., Springbank Investments Inc., Kirtaff Holdings Inc., Alfred And Rita Kutajar, Liusa and Willi Kellner and Breslau Properties Inc., Connie and Robert Bogusat, Township of Woolwich, Country of Wellington, Hardy Bromberg, Brenda and Rusty Brissette, Big Spring Farms Limited Becker Estates Inc., Rio Can, Empire Communities, City of Kitchener, Hunder Development Inc., Gord Doehn and Karen Doehn
Respondents
RULING
PARAYESKI, J
MDP: mw
Released: August 29, 2013