Liddy v. City of Vaughan, Ontario Municipal Board and Vaughan Health Campus of Care and Mackenzie Health, 2015 ONSC 5939

CITATION: Liddy v. City of Vaughan, Ontario Municipal Board and Vaughan Health Campus of Care and Mackenzie Health, 2015 ONSC 5939

DIVISIONAL COURT FILE NO.: 496/14 DATE: 20150924

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

CARRIE LIDDY Applicant (Moving Party)

– and –

CITY OF VAUGHAN Respondent (Responding Party)

-and –

ONTARIO MUNICIPAL BOARD Respondent (Responding Party)

-and –

VAUGHAN HEALTH CAMPUS OF CARE and MACKENZIE HEALTH (Responding Parties)

James C. Morton, for the Applicant (Moving Party) Stephen Waqué, for the Respondent (Responding Party) Stephen J. O’Melia, for the Responding Party, Mackenzie Health

HEARD at Toronto: September 24, 2015

D. L. CORBETT J. (ORALLY)

[1] Ms. Liddy seeks leave to appeal from the OMB’s decision of September 12, 2014 to summarily dismiss Ms. Liddy’s appeal of the City of Vaughan’s by-law related to its proposed new hospital lands. The OMB found that Ms. Liddy had no standing to bring the appeal and that her proposed appeal did not raise planning issues on which she could succeed.

[2] Ms. Liddy sought to issue subpoenas to witnesses for the Board hearing and to cross-examine on affidavit evidence tendered by Vaughan. The Board declined to issue the subpoenas and declined to order cross-examinations, principally on the basis that they would not yield relevant evidence for the issues before the Board.

[3] The test for leave to appeal is:

(a) whether there is good reason to doubt the reasonableness of the Board’s decision; and

(b) whether the proposed appeal raises matters of such importance as to merit the attention of the Divisional Court.

[4] Mr. Morton, in his very able submissions, argued that the standard of review on the standing issue is correctness, and thus that the test for leave to appeal is, likewise, whether there is good reason to doubt the correctness of the Board’s decision. Legal principles of standing, Mr. Morton argues, are matters of legal expertise, not planning expertise, and thus should not attract “home statute deference.” I disagree. Standing, in this context, is a matter of practice and procedure before the Board, a matter that should ordinarily attract deference in this court in any event. Here, standing is uniquely tailored to the planning process, and has been revisited by the legislature in 2006, out of concerns that planning issues be decided at first instance by City Council and not the Board: see Re Loblaw Properties Ltd. (2011), 68 O.M.B.R. 473. This is an issue in respect to which the OMB’s immersion in the planning process and experience with the historic development of the law, makes it a clear case for the application of the “home statute principle”. In my view the standard of review is reasonableness.

[5] In respect to the request to cross-examine and to issue subpoenas, I agree with the Board’s conclusion that those efforts would not have yielded any useful evidence for the purpose of determining standing or whether there was a planning issue upon which Ms. Liddy could succeed. The facts in respect to the standing issue are uncontested and are not based on the underlying merits of the appeal: nothing that would have been uncovered in the cross-examinations could possibly have affected the Board’s determination of the standing issue.

[6] Section 34(19) 2 of the Planning Act provides that “a person or public body who, before the by-law was passed, made oral submissions at a public meeting or written submissions to the council”, has standing to bring an appeal of the by-law. Prior to the 2006 amendment, the OMB had discretion to relieve from the strict application of this provision and thus a broader standing principle was in place than is the case now. That discretion was removed in the 2006 amendments. The requirement of s. 34(19) 2 is mandatory for any person seeking standing on the basis of that provision. See Smith v. Town of Bracebridge, 2013 ONSC 891 (Div. Ct.), per Molloy J., at paras. 56-59.

[7] Ms. Liddy did not attend or make submissions at the Council meeting at which the by-law was presented. She did, however, participate in prior public consultations and meetings that were part of the process that led up to introduction of the by-law to City Council. This, Mr. Morton argues, is sufficient to meet the test of having made “written submissions” within the meaning of s.34(19) 2.

[8] The Board concluded otherwise. It found, in effect, that s.34(19) 2 requires participation whether orally or in writing in a meeting at which the by-law, itself, was considered by council. In my view, this conclusion is manifestly reasonable. It is consistent with five prior OMB decisions: Re Loblaw Properties (2011), 68 OMBR 473, Re North Kawartha Township, 2014 Carswell Ont. 9243, Re Mulmur Township By-law No. 50-13 (2014), 81 OMBR 340, Re Mattamy Realty Ltd. (2012), 72 OMBR 75, Re Ontario (Minister of Municipal Affairs and Housing, [2011] OMBD 778. It reflects the purpose of the standing requirement, which is to ensure that matters are decided at first instance by City Council and it makes it more practical for the City to know and give personal notice to all persons with standing to bring an appeal. As is reflected in the cases and in the history of the case at bar, the planning process for a large project, such as a public hospital, affords members of the public many opportunities and ways to make their views known. Only addressing City Council orally or in writing in respect of the by-law itself, however, will give someone legal standing for an appeal of the by-law under s.34(19) 2.

[9] This is not some derogation of the political process or a wet blanket thrown on community involvement. City Council is democratically elected to govern. Ordinary norms of public law do not give standing to an interested member of the public with no legal interest at stake, to challenge legislation enacted by a democratically elected legislature. The standing provisions in s.19(34) 2 should be seen as a liberalization of ordinary standing principles, tailored to the unique context of planning law. It was reasonable for the Board to interpret this liberalized provision as it did.

[10] Since Ms. Liddy does not have standing in any event, there is no need to consider whether the appeal she has no standing to bring raises planning issues on which she could succeed.

[11] The motion is dismissed.

COSTS

[12] I have endorsed the back of the Motion Record, “For reasons given orally, the motion for leave to appeal is dismissed. Costs to Vaughan of $10,000 inclusive and costs to Mackenzie Health of $5,000 inclusive, payable by Ms. Liddy within 60 days.”

___________________________ D. L. CORBETT J.

Date of Reasons for Judgment: September 24, 2015

Date of Release: September 28, 2015

CITATION: Liddy v. City of Vaughan, Ontario Municipal Board and Vaughan Health Campus of Care and Mackenzie Health, 2015 ONSC 5939

DIVISIONAL COURT FILE NO.: 496/14 DATE: 20150924

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

CARRIE LIDDY Applicant (Moving Party)

– and –

CITY OF VAUGHAN Respondent (Responding Party)

-and –

ONTARIO MUNICIPAL BOARD Respondent (Responding Party)

-and –

VAUGHAN HEALTH CAMPUS OF CARE and MACKENZIE HEALTH (Responding Parties)

ORAL REASONS FOR JUDGMENT

CORBETT J.

Date of Reasons for Judgment: September 24, 2015

Date of Release: September 28, 2015