Hamilton Halton Home Builders’ Association v. The Regional Municipality of Halton, 2016 ONSC 3807
CITATION: Hamilton Halton Home Builders’ Association v. The Regional Municipality of Halton, 2016 ONSC 3807
DIVISIONAL COURT FILE NO.: 254/15 DATE: 20160607
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, DiTOMASO and C. HORKINS JJ.
BETWEEN:
Hamilton Halton Home Builders’ Association Appellant/Respondent
– and –
The Regional Municipality of Halton Respondent/Appellant
Patrick Duffy, Jonathan Cheng, for the Appellant/Respondent
Robert G. Doumani, Jody E. Johnson for the Respondent/Appellant
Stan Floras for the Ontario Municipal Board
HEARD at Toronto: June 7, 2016
SACHS, J. (ORALLY)
[1] This is an appeal from the decision of The Ontario Municipal Board (the “Board”) overturning a by-law passed by the Appellant municipality. The by-law concerned changes to the municipality’s development charges regime made pursuant to the Development Charges Act, 1997, S.O. 1997, c.27 (the “Act”). In particular, it reduced the number of residential categories enumerated in the Appellant’s development charges regime by eliminating the distinction between multiples of three bedrooms or more and multiples of less than three bedrooms and the distinction between apartments of two or more bedrooms and apartments of less than two bedrooms.
[2] Section 96 of the Ontario Municipal Board Act, R.S.O. 1990, c.O.28 provides that decisions of the Board can be appealed to the Divisional Court, with leave, on a question of law. All parties agree that the main issue on this appeal is the Board’s interpretation of the Act, the piece of legislation that the Board has expertise in interpreting. Thus the applicable standard of review is reasonableness (City of Toronto v. Sherway Gate Development Corp., 2013 ONSC 6298 (Div. Ct.)).
[3] There are a number of other issues that the parties agree on that are important to the disposition of this appeal:
(1) They agree that the decisions under the Act can and do have planning implications and, as such, any by-law passed under the Act must comply with s. 3(5) of the Planning Act; that is, it must be consistent with, and conform to, the Provincial Plan in effect on the date it is passed. In this case, the applicable Provincial Plans are set out in the Growth Plan for the Greater Golden Horseshoe and in the Provincial Policy Statements for 2005 and 2014.
(2) The test to be applied by the Board when hearing an appeal concerning a by-law passed under the Act is that set out at paragraphs 100 and 101 of the Board’s decision in Guelph (City) Development Charges By-law (1999) – 15992 (Re) (1999) 39 OMBR 444. These paragraphs read as follows:
“100. What the Board looks for on appeals, in such cases, is whether the municipality has acted fairly and reasonably, within its powers, in accordance with the process set out in the legislation.
- When dealing with appeals, the Board should not substitute its policy choices for the City Council’s policy choices where the Board finds, based on the evidence, that the City Council has acted fairly, reasonably, within its powers and in accordance with the process set out in the Act. If Council has done so, then the Board should dismiss any appeal and leave City Council’s policy choices in place even if they are not the policy choices the Board itself would have made.”
(3) In examining whether the by-law complies with the restrictions set out in para. 5(6) of the Act, and in particular the restriction concerning cross-subsidization set out in para. 5(6) 2 of the Act, the Board is entitled to examine whether a municipality has acted fairly and reasonably in setting the categories of development it uses for the recovery of capital costs.
[4] With these issues agreed upon, the Appellant argues that the Board made the following errors of law:
(1) The Board erred in its interpretation of s. 5(6)2 of the Act by using the old by-law as a comparator to the by-law under appeal. According to the Appellant, by doing so it allowed itself to by guided by the “dead hand of the past”, something that has no place in the exercise the Board is required to perform on appeal. As part of this submission, the Appellant also argues that the Board failed to respect the policy choice that the municipality had made when coming up with the by-law under appeal, a choice that is entitled to difference.
(2) The Board erred in law in failing to articulate in its reasons where and how the by-law under appeal is not consistent with, and did not conform to, the Growth Plan or the Provincial Policy Statements.
(3) The Board made a finding of cross-subsidization in the absence of evidence to support that finding. A finding made in the absence of evidence is an error in law.
[5] With respect to the argument that the Board erred in law when it used the old by-law as a comparator, we disagree that the Board adopted any test that precluded the municipality from changing its by-laws as long as it did not do so in a way that unreasonably and unfairly caused one type of development to be subsidizing another type of development. In this case, the Board examined the evidence and found that, based on the evidence before it, this was precisely the effect of the new by-law. In particular, it found that in both the apartment and multiples categories, the smaller units would end up subsidizing the larger units, something that did not happen under the old by-law.
[6] The Board then went on to examine the municipality’s reasons for the policy change that resulted in cross-subsidization. The municipality’s stated reason for the change was that distinguishing between larger and smaller units was causing administrative problems. Having heard the evidence concerning the administrative difficulties that the municipality had actually experienced (which included only two appeals to council), the Board concluded that the municipality had not acted fairly and reasonably in making the policy choice it had made.
[7] Having reached this conclusion (and the conclusion discussed in the next section of these reasons), the Board’s broad remedial authority under s.16 of the Act was triggered. The Board had at its disposal a ready-made remedy to the flaws it had identified in the by-law under appeal, namely the Region’s former by-law. Given the lack of any alternative remedy proposed by the Region (or even a policy basis on which an alternative remedy could be fashioned), it was reasonable for the Board to reinstate the division of the multiples and the apartment categories into two sub-categories based on size of the unit, something that was contained in the old by-law.
[8] Thus, we see no merit to the submission that the Board erred in law in its use of the old by-law.
[9] We also see no merit to the submission that the Board erred in law by failing to articulate how and why the new by-law was inconsistent with, or failed to comply with, the Provincial Policy Statements or the Growth Plan.
[10] While it is true that the Board’s reasons do not specifically mention these documents, the reasons do clearly articulate a finding that the effect of the new by-law under appeal was to make smaller units more costly and less affordable. Affordability is a key concern under the applicable Provincial Plan and this concern was the subject of extensive evidence and submissions before the Board. Thus, read in the light of the record as a whole, it is clear that the Board was concerned about affordability, because this is one of the goals of the Growth Plan and the Provincial Policy Statements.
[11] Finally, we reject the submission that there was no evidence upon which the Board could make its finding of cross-subsidization. To mention but one example, the document at page 194 of the Appeal Book and Compendium (which was submitted by the Region) clearly supported this finding. It establishes a clear increase in the persons per unit as the units get larger in both the multiples and apartment categories. It is accepted that the more people in a unit, the greater the usage of the resources that are meant to be paid for by the development charges that are covered by the Act.
[12] In conclusion, we find that the Board committed no error of law and that its decision was a reasonable one within the meaning of Dunsmuir. In particular, the reasoning used was transparent, justifiable and intelligible and the result reached falls within the range of possible, acceptable outcomes that are defensible in respect of the facts and the law.
COSTS
[13] I have endorsed the Appeal Book and Compendium of the Respondent/Appellant as follows: “For these reasons, the appeal is dismissed for reasons given orally by Sachs J. Costs to the Respondent, Hamilton Home Builders’ Association, fixed in the amount of $22,000, all inclusive.”
___________________________ SACHS J.
DiTOMASO J.
HORKINS J.
Date of Reasons for Judgment: June 7, 2016
Date of Release: June 10, 2016
Hamilton Halton Home Builders’ Association v. The Regional Municipality of Halton, 2016 ONSC 3807
DIVISIONAL COURT FILE NO.: 254/15 DATE: 20160607
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, DiTOMASO and C. HORKINS JJ.
BETWEEN:
Hamilton Halton Home Builders’ Association
Appellant/Respondent
– and –
The Regional Municipality of Halton
Respondent/Appellant
ORAL REASONS FOR JUDGMENT
SACHS, J
Date of Reasons for Judgment: June 7, 2016
Date of Release: June 10, 2016