Ottawa (City) v. 267 O’Connor Limited, 2016 ONSC 565

CITATION: Ottawa (City) v. 267 O’Connor Limited, 2016 ONSC 565

DIVISIONAL COURT FILE NO.: 15-DC-2116

DATE: 2016/01/22

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LABROSSE J.

BETWEEN:

City of Ottawa

Moving Party

– and –

267 O’Connor Limited, Centretown Citizens Ottawa Corporation, Centretown Citizens Community Association and Brian Bourns

Responding Parties

Timothy C. Marc, for the Moving Party

Janet Bradley, for the Responding Parties

HEARD: January 8, 2016 at Ottawa

DECISION ON MOTION FOR LEAVE TO APPEAL

[1] This is a motion for leave to appeal to the Divisional Court from the decision of the Ontario Municipal Board (“Board”) dated April 29, 2015, brought pursuant to section 96(1) of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 (the “OMB Act”).

Procedural History and Background

[2] The municipal process which gives rise to this appeal was a decision by City Council of the City of Ottawa (the “City”) to implement Official Plan Amendment No. 117 (“OPA 117”), which was an update of the Centretown Secondary Plan adopted by City Council in the mid‑70’s and the implementation of the Centretown Community Design Plan (“CCDP”) to include new policy directions for land use in the Centretown Area of the City.

[3] The Board’s decision, delivered by R.G.M. Makuch, dealt with several different appeals to OPA 117, which included the appeal by the Respondent 267 O’Connor Limited (the “Respondent”). A hearing was held from September 15, 2014 to October 1, 2014 from which the Board issued a decision which touched on each of the appeals to OPA 117.

[4] Of relevance to this motion for leave to appeal were the aspects of the Board’s decision which removed the height limits described in metres found in certain sections of OPA 117 including Schedule H2. Further, the Board made changes to OPA 117 to approve language proposed by the land use planning consultant called by the Respondent that was more flexible in its application than the more prescriptive language adopted by City Council.

[5] The City of Ottawa has now applied for leave to appeal on the basis of the following questions:

a. Did the Board err in law in failing to properly interpret section 16 of the Planning Act, R.S.O. 1990, c. P.13, in concluding that an Official Plan cannot be specific with respect to performance standards for a development, including but not limited to the height of such development in storeys or metres or both?

b. Did the Board err in law in not considering the evidence of the witnesses called by the City, in particular George Dark and Tim Smith, with respect to the appropriateness of an Official Plan providing specific limits, or certainty, with respect to performance standards for a development including but not limited to the height of such development in storeys or metres or both?

Test for Leave to Appeal

[6] An appeal from the decision of the Ontario Municipal Board lies to the Divisional Court with leave on a question of law, pursuant to section 96(1) of the OMB Act.

[7] In granting leave, the Court must be satisfied that:

a. There is good reason to doubt the correctness of the decision; and

b. The appeal involves an important question of law meriting the attention of the Divisional Court (Richmond Hill Naturalists v. Corsica Developments Inc., 2013 ONSC 7894 at para. 21, 19 M.P.L.R. (5th) 38 (Div. Ct.) [Richmond Hill]; Exchange Tower Ltd. v. Municipal Property Assessment Corp., 2011 ONSC 4073, at para. 16, 282 O.A.C. 217 (Div. Ct.) [Exchange Tower]).

[8] To meet the first requirement, the moving party need not show that the decision is wrong or even probably wrong. This part of the test is satisfied if “the correctness of the order is open to very serious debate” (Richmond Hill at para. 22. See also Exchange Tower at para. 17; Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 at 284 (Gen. Div.)).

[9] The Appellant pursued the following main issues during the motion:

a. Is an Official Plan permitted to be prescriptive with respect to performance standards, in particular height, in light of the language in the Planning Act, section 16?

b. Is it a relevant consideration in determining whether an Official Plan can be prescriptive with respect to performance standards that a minor variance can only be granted with respect to a zoning by‑law?

c. Does case law provide that an Official Plan cannot be prescriptive with respect to performance standards, such as height?

d. Did the Board properly consider all the evidence submitted before it, in particular, did it fail to consider the evidence of the witnesses called by the City?

e. Did the Board err in law by not having regard to the decision of City Council, in particular with respect to the matter of firm performance standards with respect to height?

Question of Law

[10] Under section 96(1) of the OMB Act, the court only has jurisdiction to hear a pure question of law. A question of mixed law and fact is not sufficient (Concerned Citizens of King Township v. King (Township) (2000), 19 M.P.L.R. (3d) 103 (Ont. Sup. Ct. (Div. Ct.)); Simon v. Bowie, 2010 ONSC 5989, 84 M.P.L.R. (4th) 326 (Div. Ct.)).

[11] The two questions posed by the City of Ottawa in this motion for leave to appeal can, when considered on their own, raise issues of law. Firstly, the analysis of section 16 of the Planning Act and City Council’s ability to adopt policies which are specific with respect to performance standards for development is a question of law which meets the criteria of section 96(1) of the OMB Act. Secondly, it has been recognized that a failure by a tribunal (in this case, the Board) to properly consider the evidence presented at the hearing can, in certain circumstances, amount to an error in law (see R v. Walle, 2012 SCC 41 at para. 46, [2012] 2 S.C.R. 438; Hock (Guardian of) v. Hospital for Sick Children (1998), 1998 7115 (ON CA), 106 O.A.C. 321 at para. 84 (C.A.)).

[12] During the motion for leave to appeal, the City of Ottawa also took issue with para. 89 of the Board’s decision which states the following:

The Board agrees with Mr. Fobert’s evidence on this issue, official plans should be flexible documents setting out general policy and are not intended to be prescriptive in their application. There is a wealth of authorities which suggest that official plan policies should be flexible and general in nature and that regulatory standards are for zoning by-laws and not Official Plans. Section 16(1) of the Planning Act according to these authorities functions to limit Official Plans to setting the vision (goals and objectives) of the municipality and should not be a vehicle for regulation under the Planning Act as is provided in s. 34, the authority for enacting zoning by‑laws.

[13] In this paragraph, the Board is making a finding with respect to the jurisdiction afforded by section 16 of the Planning Act and that Official Plan policies should not be prescriptive in their application. They should be flexible and general in nature. The City of Ottawa challenges the Board’s findings that an Official Plan is not intended to be prescriptive and this is a question of law which can be considered as part of the first question on which leave to appeal is sought.

Good Reason to Doubt the Correctness of the Decision

[14] The existence of conflicting decisions may give reason to doubt the correctness of the decision. Demonstrating that the legal tests applied or factors considered by the Board are novel and not in accordance with established case law is one way of meeting the threshold of “open to very serious debate” (Exchange Tower at para. 17).

[15] When evaluating the correctness of the Board’s decision, the court must consider the standard of review that will apply should appeal be granted. Where the Board’s decision involves matters within its expertise, such as planning matters and interpretation of the Board’s “home statute”, the Planning Act, the standard of review is one of reasonableness. Where the challenged decision falls into this area, the decision of the Board is entitled to deference, including at the leave stage (Richmond Hill at paras. 23-24; 2341066 Ontario Ltd. v. County of Oxford, 2015 ONSC 3361 at paras. 40-42, 38 M.P.L.R. (5th) 88 (Div. Ct.)).

[16] Some courts have explicitly stated that because of this deferential standard, this step of the test should be framed as “good reason to doubt the reasonableness of the decision being appealed” (Ottawa (City) v. Greater Ottawa Home Builders Assn., 2013 ONSC 5062 at para. 3, 77 O.M.B.R. 450 (Div. Ct.)).

[17] At issue in this appeal is the Board’s decision to prefer the Proposed Modifications to Official Plan Amendment No. 117 as prepared by the Respondent’s land use planning consultant over the original wording adopted by City Council. Within these modifications are amendments to policies 3.9.5.3 and 3.9.5.5 k) and l), the Proposed Site Specific Policy for 267 O’Connor and Schedule H2. In making these amendments to OPA 117, the Board relied upon the land use planning evidence provided by several different land use planners, but in particular the evidence of the land use planner retained by the Respondent.

[18] At the hearing before the Board, the City relied on the evidence of George Dark, an urban designer and landscape architect, John Smit, a land use planner with the City, Sally Coutts, a heritage planner with the City, Robert Spicer, a planner with the City, and Tim Smith, a land use planning consultant. The Respondent relied upon the evidence of Ted Fobert, a land use planning consultant, and of Roderick Lahey, a professional architect.

[19] The hearing lasted two weeks and dealt with several issues which are not all the subject of this motion for leave to appeal. The following relevant evidence was summarized by the Board in its decision:

a. The background evidence leading up to the adoption of OPA 117 as provided by Mr. Dark;

b. Centretown is one of the oldest communities in Ottawa and contains a broad mix of architectural styles and covers almost 40 city blocks with much of the area being subject to a heritage overlay as an additional layer of zoning regulations imposed to encourage retention of existing heritage buildings and over‑rides any underlying zoning;

c. City Council recognized that the 1976 Centretown Secondary Plan, which was based on policy directions formulated some 35 years ago, needed to be updated with new Secondary Plan directions that could better respond to some of the current market and community issues facing Centretown;

d. The key elements of the plan were to reclaim the public realm by promoting pedestrian friendly development through the creation of small parks and other re‑greening initiatives;

e. According to Mr. Fobert, Centretown is eclectic and diverse in built form and use and that as such, it is not conducive to standardized performance standards;

f. Sally Coutts, the City’s heritage planner, testified that rigid performance standards are inappropriate in areas with many heritage buildings because a site needs to be developed in the specific context in which it sits;

g. As can be seen in their witness statements, both Mr. Dark and Mr. Smith gave evidence on the appropriateness of having performance standards in an Official Plan.

[20] In regards to the first question upon which leave to appeal is sought, the City focuses on paragraphs 81 and 89 of the Board’s decision. The Board’s conclusions at paragraph 89 of the decision that “official plans should be flexible documents setting out general policy and are not intended to be prescriptive in their application” follows a line of cases which supports the distinction between official plans and zoning by‑laws. One of the leading principles is found in Toronto (City) v. Goldlist Properties Inc. (2003), 2003 50084 (ON CA), 67 O.R. (3d) 441 at para. 49, where the Ontario Court of Appeal stated that “[a]n official plan rises above the level of detailed regulation and establishes the broad principles that are to govern the municipalities land use planning generally”. The Board’s conclusions at paragraph 89 are generally in line with the law as established by the Court of Appeal in Goldlist.

[21] Further, I do not agree with the City that the Board concluded that section 16 of the Planning Act prohibits a municipality from prescribing height limits in an Official Plan. To the contrary, the Board actually did prescribe height limits in its decision on OPA 117. On schedule H2, the Board removed the height limits in metres but allowed the prescriptive height limits in terms of the maximum number of storeys. Further, when considering the Brian Bourns Appeal, the Board approved the 14.5 meter height limit in “Low‑Rise” areas. I am unable to conclude that the Board’s decision has the effect of preventing height limits in an Official Plan, where appropriate.

[22] The City also contends that the Board erred in approving changes which eliminated the prescriptive wording found in the version of OPA 117 adopted by City Council. Specifically, the City opposes the inclusion of the last sentence in Policy 3.9.5.3. Once again, I am unable to give effect to this ground. The Board’s analysis at paragraph 81 demonstrates that it based its decision on what it deemed to be good land use planning: the inclusion of non‑prescriptive wording would allow for minor deviations from official plan policies. It was open to the Board to accept the evidence of the Respondent’s land use planner and remove the prescriptive wording in certain policies. In other policies, such as policy 3.9.5.4, the Board agreed with the City and maintained the more prescriptive wording as had been adopted by City Council.

[23] I am of the view that the Board, as part of its jurisdiction, considered the appropriateness of the City’s proposed prescriptive wording as adopted by City Council. Some policies were maintained as adopted by City Council while others were modified in line with the wording proposed by the Respondent’s land use planning consultant. The Board’s reference to the minor variance process not being available for Official Plans was not an error but simply a further practical justification for avoiding prescriptive wording in an Official Plan.

[24] The Board’s decision results from a series of findings which are rooted in the land use planning evidence which forms part of the normal functions of the Board under the jurisdiction afforded to the Board by section 16 of the Planning Act. The wording used in paragraph 89 that “official plan policies should be flexible and general in nature and that regulatory standards are for zoning by‑laws and not Official Plans” is wording that is common in decisions of the Board (see 862506 B.C. Ltd. v. Kingston (City), 2014 CarswellOnt 1087 at para. 29 and Shenglin Holdings Co. Ltd. v. Toronto (City), 2015 21642 at para. 30). These findings are also consistent with the law relating to Official Plans and the distinction between Official Plans and Zoning By‑laws that has been recognized by the courts (see Cadillac Development Corp. v. Toronto (City) (1973), 1973 818 (ON SC), 1 O.R. (2d) 20 (S.C.) at para. 24; Aon Inc. V. Peterborough (City) (1999), 1 M.P.L.R. (3d) 225 at p. 233 (Ont. Ct. J. (Gen. Div.)); Bele Himmel Investments Ltd. v. Mississauga (City) (1982), 13 O.M.B.R. 17 at p. 27 (Div. Ct.)).

[25] In the context of the Centretown Area of the City of Ottawa, the Board concluded that it was not appropriate for OPA 117 to include prescriptive wording and favoured policies which were flexible and general in nature. This was within the Board’s jurisdiction and the reasonableness (or correctness) of the Board’s decision is not open to serious debate.

[26] In regards to the second question upon which the City seeks leave to appeal, the City contends that the Board failed to properly consider the City’s evidence in concluding that OPA 117 should not contain language which is prescriptive. The City specifically notes the absence of any reference by the Board to the evidence of Mr. Dark and Mr. Smith on that issue. The City contends that the Board limited its analysis to the evidence of Mr. Fobert.

[27] While the evidence of Mr. Dark and Mr. Smith was not specifically referenced by the Board on the specific issue of prescriptive wording, their evidence was referenced at other times in the Board’s decision. Mr. Dark’s evidence, in particular, was referenced at great length in other parts of the decision. On the issue of prescriptive wording, the Board referenced the evidence of other City planning witnesses John Smit and Sally Coutts on the issue of heights and rigid performance standards. The Board was not required to refer to the evidence of every planning witness on the issue of prescriptive wording. Indeed, the Supreme Court has noted that a decision‑maker “must consider all of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was an error in law in this respect” (R. v. Morin, 1992 40 (SCC), [1992] 3 S.C.R. 286 at p. 296). It was open to the Board to base its decision on the evidence of Mr. Fobert and I am unable to conclude that the Board misapprehended relevant evidence which could lead me to doubt the correctness of the decision. I would, therefore, not grant leave on the City’s second question.

[28] Although not listed as a specific question upon which leave to appeal is sought, the City contends that the Board failed to have regard to the decision of City Council, in particular with respect to the matter of firm performance standards, contrary to section 2.1 of the Planning Act. I would not give effect to this argument. The Board’s decision is comprehensive and is a thorough review of the evidence. The Board referenced the planning process which led up to the adoption of OPA 117, set out the City’s position on the issues and gave detailed reasons for its various rulings on the subject matter of the hearing.

[29] In reviewing the decision of the Board, I reject the submissions of counsel for the Appellant that there is good reason to doubt the legal correctness of the Board’s decision. The Board found that, in these circumstances, some of the prescriptive wording in OPA 117 did not amount to good land use planning. The Board’s decision should not be interpreted as preventing prescriptive wording in an Official Plan as a general rule. The Board’s decision is specific to these circumstances and not a broader statement of the law that relates to Official Plans, nor is it in conflict with the law referenced herein. Since I have found no reason to doubt the correctness of the Board’s decision, I need not decide whether the issue is of sufficient importance to merit the attention of the Divisional Court.

[30] The motion for leave to appeal is therefore dismissed.

Costs

[31] The parties have agreed that in the event that the Motion for Leave to Appeal is dismissed, the Respondent, 267 O’Connor Limited, is entitled to the payment of its costs fixed in the amount of $9,000.00 inclusive of taxes and disbursements. It is so ordered.

Mr. Justice Marc R. Labrosse

Released: January 22, 2016