Court File and Parties

COURT FILE NO.: 3071/16

DATE: 2017/11/14

SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT - ONTARIO

RE: RONALD SNOWDEN Applicant (Responding party)

AND:

THE CORPORATION OF THE TOWNSHIP OF ASHFIELD-COLBORNE-WAWANOSH Respondent (Moving party)

BEFORE: Justice I. F. Leach

COUNSEL: G. Edward Oldfield, for the Applicant (Responding party) Patrick J. Kraemer, for the Respondent (Moving party)

HEARD: March 31, 2017, and by supplemental written submissions

ENDORSEMENT

[1] Before me is a motion by the Township of Ashfield-Colborne-Wawanosh, (“the Township”), seeking leave to appeal from a decision of the Ontario Municipal Board, (“the OMB” or “the Board”), issued on March 7, 2016, in relation to an application by Ronald Snowden.

[2] That application sought permission for an accessory building on property Mr Snowden owns in St Helens; a hamlet located within the Township, in turn located within the County of Huron.

Background

[3] By way of further background:

• The Official Plan adopted by the County of Huron, (“the HCOP”)[^1], includes the following declarations and directives:

  • The two county attributes most valued by the public are a “rural environment”, and friendly, safe and caring neighbourhoods “with a rural lifestyle”.
  • Among the “key directions” identified for settlements are “continued growth within existing urban areas” and support for “agriculture and a strong agricultural industry”, as the latter “makes a fundamental contribution to the economy of Huron County and the long-term ability of farmers to remain competitive must be protected”.
  • The community has established “settlement areas”, (i.e., “built up areas where development is concentrated), consisting of existing towns, villages, hamlets and lakeshore residential areas. Such areas are to be the continued focus of development activity in Huron County, with separate policies for “primary”, “secondary” and “tertiary” settlement areas.
  • “Tertiary Settlement Areas” are defined as “villages and hamlets which are serviced by individual or private communal on-site services”, and development in such areas is to be “small-scale and limited to infilling and rounding out”. Such communities “are intended to provide fewer opportunities for growth, a limited variety of services, and employment opportunities that are in keeping with the rural setting and character of the community”. Within such villages and hamlets, the efficient use of land and services is to be “encouraged through increased intensification”, including “redevelopment, infilling, and expansion or conversion of existing buildings”.
  • Any consideration for the expansion of existing settlement areas, or the establishment of a new settlement area, requires a “supportive comprehensive review”. Such a review must, inter alia, justify the need for such an expansion, (including demonstration that sufficient opportunities for growth are not available through intensification, redevelopment and already designated growth areas), and demonstration that the proposed expansion is in the most suitable location, (including demonstration that there are no reasonable alternatives which avoid prime agricultural lands, and that “impacts from new or expanding settlement areas on agricultural operations which are adjacent or close to the settlement area are mitigated to the extent feasible”).
  • Natural, built and cultural heritage resources are to be identified, protected and promoted, with development and redevelopment to “complement”, amongst other things, small town “character”.

• By an appendix to the HCOP, (expressly made subject to change and amendment, not requiring amendments to the HCOP), St Helens was designated a “Tertiary Settlement Area” for the purposes of the HCOP.

• The Official Plan adopted by the Township, (the “TOP”)[^2], includes the following declarations and directives:

  • Settlement areas within the township include villages and hamlets, which “serve the surrounding agricultural community and function as residential areas”.
  • Identified goals for such settlement areas include protecting and enhancing their character and aesthetic qualities; providing sufficient land within them for growth; directing development to designated areas; preventing the intrusion of “non-farm development” in agricultural areas; allowing development “in keeping with the setting, character and aesthetic quality” of the village/hamlet; and building on the “unique character of each village and hamlet”.
  • The overall intent of the TOP is “to accommodate future growth within existing designated settlement areas”.
  • Hamlets, including St Helens, “are more rural in character and provide limited residential, commercial and social functions”. They are “remnants of small service centres of the past”, and provide “a rural setting as an alternative to urban areas”. The “minimal development pressure” existing in such rural communities should occur primarily by “infilling”, and the “style and function of rural hamlets should be maintained”.
  • The primary use of land in the villages and hamlets is to be residential, in the form of single detached dwellings. However, other types of dwellings may be permitted, subject to, inter alia, compatibility with the surrounding area. Secondary residential units, in the form of separate units within an existing dwelling or a detached accessory building, are also permitted.

• The Consolidated Zoning By-law adopted by the Township, (the “TCZB”)[^3], includes the following provisions:

  • Where the by-law permits that a lot may be used, or a building or structure may be erected, altered or used for a purpose, that purpose shall include any accessory building or structure or accessory use, but shall not include any occupation for gain or profit as may be permitted by the by-law, or any building used for human habitation except where a dwelling or guest cabin is a permitted accessory use.
  • Except as otherwise provided in the by-law, any accessory building or structure or swimming pool which is not an integral part of the main building shall be erected in the rear yard and/or in the interior side yard.
  • An accessory building or structure also shall not be located closer to the street than the setback required for the main building, except in certain designated zones where the street abuts the rear yard.
  • Additional provisions which recognize and permit the strengthening, repair of buildings or structures used for non-conforming uses, as well as the ability of the Committee of Adjustment to permit a non-conforming use more compatible with the uses permitted by the By-law other than the purpose for which any land, building or structure was used on the day the By-law was passed.

• A Provincial Policy Statement (“PPS”) issued in 2014, pursuant to s.3(1) of the Planning Act, R.S.O. 1990, c.P.13[^4], includes the following declarations and directives:

  • Settlement areas are both “urban” and “rural” in nature, and include cities, towns, villages and hamlets.
  • The vitality of settlement areas is critical to the long term economic prosperity of communities.
  • Settlement areas are to be the focus of growth and development, and their vitality and regeneration are to be promoted.
  • Amongst other things, land use patterns within settlement areas are to be based on a range of uses for intensification and redevelopment in appropriate identified locations, where that can be accommodated “taking into account existing building stock or areas”.
  • Planning authorities are permitted to identify a settlement area or allow the expansion of a settlement area boundary only at the time of a “comprehensive review”, and only where it has been demonstrated, inter alia, that impacts from new or expanding settlement areas on agricultural operations which are adjacent or close to the settlement area are mitigated to the extent feasible.

• At all material times, Mr Snowden has owned a property, approximately 6.43 acres or 2.55 hectares in size, located within the Village Hamlet of St Helens.[^5] There is no residential building on the property. However, on or about May 15, 2015, a gravel floor farm building, approximately 430 square metres in size[^6], was erected on the property prior to Mr Snowden obtaining a building permit. The property was setback approximately 70 feet from its Henry Street frontage.

• On or about June 3, 2015, Mr Snowden completed and filed a formal “Application for Official Plan and/or Zoning By-law Amendment”. In that regard:

  • Mr Snowden requested an amendment of the TCZB, permitting the building of a “shed” on his property, for storage purposes, “without first putting up a house”.
  • Mr Snowden indicated his belief that the existing use of his land was and “always has been” agricultural; that the uses of the land permitted by the current official plan designation were “agricultural as existing use + residential”; and that his proposed use of the land was “most[ly] still agricultural except for [a] small corner for shed storage”.
  • Mr Snowden confirmed the dimensions and setback of the shed, and that its purpose was storage; i.e., “storage of excess equipment in a neat + tidy manner out of sight”.
  • Mr Snowden indicated that he also contemplated installation of a private well and septic system “when [his] house is built in [the] future”.
  • Consideration of Mr Snowden’s application by the Township’s Council was scheduled for a public meeting on July 21, 2016.

• On or about July 14, 2015, a report on Mr Snowden’s application was submitted to the Township’s Council by Monica Walker-Bolten, a registered professional planner who does work for the Township. In that regard:

  • Ms Walker-Bolton noted that Mr Snowden’s requested amendment would have the effect of changing zoning on a portion of his property from “Village/Hamlet Residential – Low Density Zone” (or “VR1”) to “Village/Hamlet Residential – Low Density Zone – Special Zones (or “VR1-17”). The latter would permit the accessory building to have a larger floor area than a future house, and similarly allow it to be located in the “front yard” of the lot; i.e., located closer to the road than the location chosen for a future house on the lot.
  • It was emphasized that provisions of the Township’s zoning by-law were intended to regulate development in a manner that establishes “harmonious and regular forms of development within neighbourhoods”.
  • Ms Walker-Bolton recognized that St Helens features a number of agricultural-type buildings within the hamlet/village, which she characterized as “existing non-conforming barns and bards used for families relying on horses for their sole means of transportation”. She also acknowledged that such structures are a “predominant feature of St Helens that add to the unique character” of the hamlet/village. Moreover, she noted that it might have been possible for an agricultural type of shed to be constructed on Mr Snowden’s property, in harmony with the character of the surrounding area.
  • However, in the view of Ms Walker-Bolton, the shed already constructed by Mr Snowden, (“without a building permit and without a rezoning process that might have identified ways to appropriately incorporate such a building in harmony with the surrounding area”), was “very large” and “out of character with the residential development predominant in the area”, and its chosen size and location would make it “very difficult, if not impossible, for the lot to be developed in conformity with the zoning by-law in the future”.
  • In particular, Ms Walker-Bolton was of the view that permitting such a shed, larger than the future residence, prior to the main residential use of the property being established, and in the “front yard” of the lot, would “move away from the intent of the zoning bylaw to harmonize and regulate development”.
  • It therefore was recommended that the zoning by-law amendment be denied.

• Prior to the public meeting at which Mr Snowden’s application was considered, (and as also noted by Ms Walker-Bolton in her report to Council), the Township received letters from neighbours of Mr Snowden. Some supported his application and shed, while others voiced objections. Supporters were pleased with the look and construction of the building, and believed it would be good for commercial purposes. Objectors expressed concerns about the building being erected prior to a house, without a building permit, and without a change to the zoning by-law.

• The Township’s Council met in regular session on July 21, 2015, at which time a motion was made to introduce and pass a by-law to amend the TCZB in the manner requested by Mr Snowden. The motion was defeated, effectively denying Mr Snowden’s application.

• In the wake of the Township’s refusal to amend its zoning by-law as requested, so as to permit the accessory building already constructed on Mr Snowden’s property, Mr Snowden filed an appeal with the OMB. In particular, on or about August 14, 2015, Mr Snowden completed and filed an “Appellant Form (A1), Planning Act”. In that regard:

  • Mr Snowden indicated that the focus of his appeal was an “Application for an amendment to the Zoning By-law refused by the municipality”.
  • Mr Snowden did not tick or “X” any of the form’s boxes to indicate that he contemplated any other appeal of a “Zoning By-law”, “Zoning By-law Amendment”, “Official Plan” or “Official Plan Amendment”.
  • In the limited space provided by the form for a “brief explanatory note” regarding his proposal, Mr Snowden inserted the following: “A storage building was erected on the subject lands consistent with its use. The applicant mistakenly believed the zoning was agricultural when it had been changed to another designation without his knowledge.”
  • After placing an “X” on the form to indicate his belief that the matter would benefit from mediation, Mr Snowden inserted, in the limited space provided, the following explanation for his belief in that regard: “The decision of the Municipality has created numerous problems as a result that make it virtually impossible, without good reason, to correct the situation in circumstances in which the land use is consistent with the historical intended use, the building meets all other code requirements and adds substantially to the community and financial resources available to the Municipality. While the erection should have been postponed until the zoning problem was addressed, the applicant did not see it as a problem. The Municipality in denying the re-zoning application did so for improper reasons and failed to discharge its obligation to consider the application objectively on the basis of the land use in an area in which no other foreseeable use would be made of the lands in question.”

• In advance of Mr Snowden’s appeal being heard by the OMB, Ms Walker-Bolton prepared a Supplementary Planning Report on or about December 11, 2015. In that report:

  • Ms Walker-Bolton summarized various provisions of the Planning Act, supra, HCOP and PPS, emphasizing such matters as the importance of protecting agricultural resources; orderly community development; adequate housing; growth and development in appropriate locations; and the vitality of settlement areas to long-term economic prosperity.
  • Ms Walker-Bolton reiterated her opinion that Mr Snowden’s application was not consistent with such legislation, planning and policies, insofar as it:
    • would allow a large accessory building without a main residential use on land that was part of the supply reserved by the County and Township for future residential development;
    • prevent development conforming to the zoning by-law, including future establishment of the main residential use contemplated for the property;
    • thereby promote an inefficient use of the land, by hindering its development for residential “infilling” of the existing settlement area; and
    • in turn, increase the need for future expansion of St Helens and other settlement areas into agricultural lands.

• An OMB hearing relating to Mr Snowden’s appeal began on January 12, 2016. Mr Snowden was represented by a former lawyer. The Township was represented by counsel.

• At the outset of that OMB hearing, the Township made a motion, supported by oral submissions, requesting that the appeal be dismissed pursuant to s.34(25)(a)(i) of the Planning Act, supra. Those provisions permit the OMB to dismiss all or part of an appeal without holding a hearing, on its own initiative or on the motion of any party, if the OMB is of the opinion that the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Board could allow all or part of the appeal. The motion did not succeed[^7], and the OMB embarked on a two-day substantive hearing of Mr Snowden’s appeal.

• Over the course of that substantive hearing:

  • Mr Snowden testified. In the course of that testimony, and submissions made through his representative:
    • It was emphasized that the property in question actually had been used for agricultural production from 1857 to the present, and was in fact agricultural. At all times prior to the current zoning dispute, Mr Snowden had been under the impression that the lands were still designated and zoned for their historic agricultural uses.
    • Mr Snowden had not intended to erect an accessory building on the property prior to obtaining a building permit. However, he was called unexpectedly late one night by his contractor, who indicated that construction of the building would have to begin very early the next morning if Mr Snowden wanted it erected in a timely manner. Taken completely by surprise, feeling certain that a building permit could be obtained from the Township office the next morning, and not anticipating any problems in that regard, Mr Snowden consented to the imminent construction. When Mr Snowden attended at the Township’s office the next day, he nevertheless was informed that a zoning by-law amendment would be required.
    • The pre-fabricated metal accessory building already had been partially constructed by the time Mr Snowden returned to his property from the Township’s office, and was completed by the contractor in less than 48 hours.
    • Mr Snowden subsequently was “confounded” when he received a copy of the negative planning report prepared by Ms Walker-Bolton, and “mystified” when his application to amend the TCZB was denied by Council, effectively making his accessory building illegal.
    • Mr Snowden emphasized that he required only 0.44 hectares (one acre) of the 2.55 hectares (6.43 acres) of property to be rezoned, in order to accommodate his accessory building, (used solely to house farm equipment and farm machinery), and “possibly” a new home. In that regard, Mr Snowden tendered photos depicting homes he had built or renovated in the past, as well as numerous accessory buildings of varying sizes, (with an apparently agricultural character or purpose), located on other residential properties in St Helens.
    • Mr Snowden led no evidence from any land-use planning expert of his own.
  • The Township led land-use planning evidence from Ms Walker-Bolton, a registered professional planner, who was qualified by the Board as an expert in land-use planning. In the course of her testimony, (including cross-examination by Mr Snowden’s representative), and submissions made through the Township’s counsel:
    • It was emphasized that, regardless of their actual use, the subject lands had been designated for residential use by the HCOP, TOP and TCZB. In that regard, reliance was placed on provisions of the HCOP, TOP and PPS dealing with “settlement areas”; e.g., provisions indicating their intended use as residential development areas to prevent encroachment on other agricultural lands.
    • It was noted that the building constructed by Mr Snowden on his property actually was not “accessory” or “ancillary” to any main residential building, as the latter did not exist and no plans to develop such a residence had been submitted to the Township. Moreover, the location of the building already constructed by Mr Snowden effectively made it impossible for any main residential building to be constructed to the front or side of the accessory building, in conformity with other provisions of the TCZB.
    • It was emphasized that the applicable restrictions and requirements would have been explained to Mr Snowden had he consulted the Township’s planner before erecting his building, and that he was advised of them when he belatedly sought a building permit.
    • Ms Walker-Bolton acknowledged that, although she had been a member of the planning team which had recommended Council’s amendment of the TOP, resulting in Mr Snowden’s property being re-designated as part of a “hamlet” with a “VR1” residential zoning, she “personally” had not conducted nor participated in any open houses or any other type of “one-on-one” contact that might have served to apprise residents of St Helens of the impact the proposed land use planning designation and zoning could have on their way of life and economic well-being as farmers. Nor was she aware of any such one-on-one meetings or open houses having been conducted by any other representative of the County or Township.
  • The hearing was attended by numerous other individuals. In that regard:
    • Four of the individuals were identified by name, and expressly recognized as participants in the hearing. All were residents of St Helens. Two expressed support for Mr Snowden’s rezoning request, while two expressed opposition.
    • Approximately 60 other individuals also were present during the two-day hearing. When asked, they informed the Board that they lived in and around St Helens; that most were fulltime farmers; that they knew Mr Snowden well; and that they were attending the hearing to show support for Mr Snowden and learn more, (from Mr Snowden’s experience), about the uses to which they might put their lands.
    • Those opposing Mr Snowden’s application maintained that the accessory building erected on his property was not compatible with the residential designation of St Helens. They also expressed concerns about the accessory building being erected in less than 48 hours, without a building permit.
    • Those supporting Mr Snowden’s application maintained, as he did, that the accessory building was consistent with the agricultural character of the community. In that regard, the OMB received testimony indicating, inter alia, that:
      • St Helens is a community comprised primarily of people who currently earn their living from farming or, if retired, earned their living from farming during their working lives;
      • a large percentage of the households in St Helens keep horses and buggies for use as personal transportation, in the Amish tradition;
      • virtually every house in St Helens has either a conventional wood-sided barn or a contemporary metal accessory building used to house and/or store one or more horses, buggies and farm equipment;
      • the accessory building constructed by Mr Snowden was regarded as being simply another structure similar to those already found throughout St Helens; and
      • the “overwhelming majority” of residents in St Helens had no idea as to the long-term significance to their economic well-being and way of life that would be brought about by changes to the HCOP and TOP effectively restricting future uses of their lands to those residential in nature.

• The substantive hearing concluded on January 14, 2016.[^8]

• On March 7, 2016, the OMB issued its decision, from which the Township now seeks leave to appeal.

OMB Decision

[4] On March 7, 2016, the OMB issued its decision, from which the Township now seeks leave to appeal.

[5] In the course of its reasons for decision, the OMB made observations and findings that included the following:

• It was emphasized, (as it was during the substantive hearing), that the Board took no regard of the fact that Mr Snowden erected his accessory building without first obtaining a building permit. In the Board’s view, prior OMB and court jurisprudence had demonstrated that was “a matter between [Mr Snowden] and the Township”.

• The Board noted that, as reflected in the PPS, provincial policy is “strongly biased towards maintaining and protecting agricultural areas for agricultural use”.

• In the Board’s view, the evidence before it, (not disputed in relevant respects), established that prime agricultural lands were predominant in the St Helens area; that Mr Snowden’s property had been continually used for agricultural purposes for approximately 150 years; and that the property was prime agricultural land.

• The Board “pondered”, (based on the testimony of Ms Walker-Bolton), whether any comprehensive review had been completed when it was decided to designate St Helens as a “hamlet” and “settlement area”, and if so, why no “transition provisions” had been included. In that regard, the Board observed that such transition provisions are regularly provided in planning documents when the planned function of lands may not be achievable for years or decades.

• The Board noted the evidence before it indicating that the existing physical and social character of St Helens is strongly oriented towards agriculture, and that very few opportunities for employment and/or growth outside of agriculture are found there. In that regard, the Board specifically referred to undisputed evidence before it indicating, inter alia, that:

  • St Helens is not only a farming community, but one with a distinctly Amish character.
  • With very few exceptions, everyone in the St Helens community currently gains all or a significant part of their living from farming or farm-related activities.
  • With very exceptions, all buildings within St Helens are set well apart from each other, and the homes all have barns or accessory buildings housing family farm animals, horses and buggies, and farm equipment. In that regard, the property directly across the street from Mr Snowden’s property had an accessory building only slightly smaller than the one constructed by Mr Snowden, and also was located well to the front of the family home.

• In the Board’s view, that strong agricultural orientation of St Helens was unlikely to change in the near future, especially having regard to its very prominent Amish farming presence.

• The Board found that, “on the evidence” before it, restricting land uses within St Helens to residential ones “does not maintain the existing rural and agricultural character of the community”, contrary to:

  • policy 7.2 of the HCOP, which emphasizes that the community’s goal is “to support agriculture and a strong agricultural community”; and
  • policy 1.1.3.8(e) of the PPS, which puts a priority on the protection of farming.

• Moreover, based on the “un-contradicted evidence of Mr Snowden and the three Participants who testified in favour of his accessory building”, the Board found that such an accessory building, erected solely for agricultural uses, “fits the character of the St Helens area, is consistent with Provincial policy as well as in conformance with the policy direction of both its HCOP and TOP”.

• The Board then went on to reference other evidence, outlined above, indicating that residents of St Helens were not made aware of the impacts residential rezoning might have, and testimony provided by Ms Walker-Bolton in that regard, before making the following comments:

  On this evidence, the Board finds the process by which the zoning on Mr Snowden’s land was changed to have been unfair to the farm community of St Helens and contrary to principles of good planning.

  After considering the responses of Ms Walker-Bolton to the Board’s questions, the Board finds that the rezoning of the subject lands from a zone that permitted agricultural uses to VR1, a zone that permits only residential uses, without the affected landowners being sufficiently informed, is contrary to s.34(2) of the Planning Act. This section speaks to the requirement for “sufficient information and material” being made available to enable the public “to understand generally the zoning proposal being considered by Council”. Considering the isolation and unique character of the St Helens community, the Board finds that the actions of the County and the Township did not accord with either the intent or the plain words of s.34(12) of the Planning Act; the affected residents and landowners were simply not sufficiently informed by council as to the general intent and probable impact of the proposed changes to the By-law before those changes were made.

• Before rendering its final conclusion and corresponding order, the Board expressly noted its obligations, pursuant to section 2.1 of the Planning Act, supra, to have regard to the Township Council’s decision in relation to the same planning matter, and the information and material the Council received and considered in making its decision.

[6] The OMB identified its final relevant “Conclusion” in a single sentence: “On the balance of the evidence, the Board finds that an accessory building erected solely for agricultural uses fits the character of the surrounding area, [and] is consistent with Provincial policy as well as in conformance with the policy direction of both the HCOP and TOP.”

[7] The relief formally ordered by the Board was expressed in the following two paragraphs:

The Board orders that the appeal is allowed.

The Board further orders that within 60 days of the date of issue of this decision, a draft zoning by-law amending Zoning By-law 32-2008, as amended, shall be submitted to the Board for its consideration. The draft zoning by-law amendment shall indicate that an approximately 0.44 ha portion at the southeast corner of Mr Snowden’s lands are rezoned so as to permit the subject accessory building as well as its use for storage and other farm-related uses.

Suggested issues requiring leave to appeal

[8] In its motion material and submissions, the Township submitted that there were no less than 11 issues in respect of which leave to appeal should be granted.

[9] As framed by the Township, those issues were said to be as follows:

a. Whether the Board erred in law in its interpretation of subsection 34(25) of the Planning Act by not dismissing the Mr Snowden’s appeal for lack of disclosure of any apparent land use planning ground upon which the Board could allow all or part of the appeal.

b. Whether the Board erred in law (and exceeded its jurisdiction) in its interpretation of subsections 34(11) and 34 (12) of the Planning Act and section 37 of the Ontario Municipal Board Act by refusing or deeming to be not in effect the following current and existing designations and zoning, when they did not form part of the application or appeal:

i. the settlement area designation of the hamlet of St Helens and the subject property under the HCOP;

ii. the hamlet designation of St Helens and the subject property under the TOP; and

iii. the “Village/Hamlet Residential – Low Density Zone” zoning of the subject property under the TCZB.

c. Whether the Board erred in law in its interpretation of subsection 34(11.0.2) of the Planning Act by making a finding that the TCZB be amended.

d. Whether the Board erred in law, in its interpretation of the PPS, by imposing a “retrospective application” of the PPS in respect of the HCOP, TOP and the TCZB.

e. Whether the Board erred in law in its interpretation of Policy 1.1.3.8(e) of the PPS in its finding that a comprehensive review is required prior to the establishment of a settlement area and its finding that such a review and settlement area designation was relevant to Mr Snowden’s application and appeal, notwithstanding that such designation was established many years prior to Mr Snowden’s application and such designation was not appealed to the Board.

f. Whether the Board erred in law (and exceeded its jurisdiction) in its interpretation of the HCOP “originally adopted in 1998” and the TOP “originally adopted in 2003” by finding that the designations that apply to the subject property were improperly imposed and contrary to the principles of good planning.

g. Whether the Board erred in law (and exceeded its jurisdiction) in its interpretation of policy 7.3 (settlement areas) of the HCOP by finding that the Tertiary Settlement Area designation of the hamlet of St Helens and the subject property is of no force and effect.

h. Whether the Board erred in law (and exceeded its jurisdiction) in its interpretation of policy 8.4 (hamlet designation) of the TOP by finding that the hamlet designation of St Helens and the subject property is of no force and effect.

i. Whether the Board erred in law in its interpretation of the development standards required by policy 8.4.4.9 (development standards) of the TOP by not applying development standards to the application and appeal.

j. Whether the Board erred in law (and exceeded its jurisdiction) in its interpretation of the TCZB by finding that the current “Village/Hamlet Residential – Low Density Zone” zoning, “established in 2008”, does not conform to the PPS, HCOP and TOP.

k. Whether the Board erred in law by failing to protect the Township’s right to procedural fairness and natural justice when it ruled in favour of Mr Snowden notwithstanding that Mr Snowden did not call any land use planning evidence to support his appeal and “did not deliver legal argument upon which the appeal could be granted”.

[10] Before turning to consideration of whether leave to appeal should be granted in relation to any or all such issues, I pause to consider the law applicable to the granting of such leave.

General principles

[11] In that regard, general principles applicable to requests for leave to appeal from OMB decisions to the Divisional Court include the following:

• An appeal lies from the OMB to the Divisional Court, with leave of the Divisional Court, on a question of law.[^9]
• To obtain such leave, the requesting party must establish the following:
  • that the proposed appeal raises a question of law;
  • that there is reason to doubt the correctness of the decision of the OMB with respect to the question of law raised; and
  • that the question of law raised is of sufficient general or public importance to merit the attention of the Divisional Court.[^10]
• In making determinations as to whether the proposed appeal raises a question of law:
  • It must be remembered that factual findings by the OMB are not only entitled to a very high level of deference,[^11] but that factual conclusions by the OMB cannot be appealed to the Divisional Court.[^12] Moreover, the Divisional Court only has jurisdiction to entertain appeals from OMB decisions that concern pure questions of law; i.e., questions of law alone. The Divisional Court has no jurisdiction to entertain appeals from OMB decisions in relation to questions of mixed law and fact.[^13]
  • The proper interpretation and application of an Official Plan, and the conformity of a proposed development with an Official plan, are questions of law.[^14]
• In making determinations as to whether there is reason to doubt the correctness of the underlying OMB decision:
  • Where the relevant legal issue involves a question of law of general application in relation to which the OMB has no special expertise, the appropriate standard of review is correctness.[^15]
  • Similarly, where the relevant legal issue involves a true question of jurisdiction, (e.g., where the OMB must determine whether its statutory grant of power gives it the authority to decide a particular matter), the appropriate standard of review is correctness, even when the issue involves interpretation of the OMB’s “home” statute.[^16]
  • However, the Legislature’s choice to confer decision making power in a particular area on a tribunal must be respected. Similarly, courts must recognize that the “right” decision in relation to such an area may not be glaringly obvious, and that the tribunal’s expertise and “field sensitivity” in making such decision must also be respected.[^17] Having regard to the privative clause generally protecting decisions of the OMB, where the relevant legal issue involves a question engaging the OMB’s specialized expertise, (e.g., in developing, interpreting and applying its own policies, its “home” statutes, or some other issue that falls within the purview of the OMB’s mandate), the Divisional Court owes deference to the OMB’s decision and the appropriate standard of review is reasonableness; i.e., the second requirement for granting leave to appeal really requires the requesting party to establish that there is reason to doubt the reasonableness of the OMB’s decision.[^18] The test for reasonableness is whether the decision is outside any margin of appreciation or range of acceptable outcomes that deference requires.[^19] In that regard, the OMB has a broad discretion under section 34 of the Planning Act, R.S.O. 1990, c.P.13, and the court generally will not interfere with the exercise of the OMB’s discretion where questions of policy are involved.[^20]
  • Correctness or reasonableness must be based on the totality of the OMB’s decision.[^21] However, it must also be remembered that the subject of an appeal is the decision of the OMB, and not its reasons for decision; i.e., the reasoning pathway to the decision reached.[^22]
  • Reason to doubt the correctness or reasonableness of an OMB decision does not require a finding that the decision is wrong or unreasonable, or even probably wrong or probably unreasonable. It is sufficient to show that the issue or issues that arise are open to “very serious debate”.[^23]
• In making determinations as to whether the question of law raised is of sufficient general or public importance to merit the attention of the Divisional Court:
  • It is the legal issues raised, (e.g., as opposed to the importance of the parties or property involved), which must be off sufficient importance to justify the granting of leave.[^24]
  • Moreover, those legal issues must be matters of general importance; i.e., relating to public rather than private importance, or the development of the law and administration of justice.[^25] In that regard, considerations may include whether the issue appears to arise not infrequently, (making it desirable for the issue to be settled), and whether the issue has an effect for most municipalities throughout the Province.[^26]
  • Disputes about the use of specific properties may not be of sufficient importance to merit the attention of the Divisional Court.[^27]

[12] With the above principles in mind, I turn now to a consideration of the specific issues in respect of which the Township says it should be granted leave to appeal to the Divisional Court.

[13] In doing so, I will refer to such issues by the corresponding letters assigned to them in paragraph 15 of the Township’s notice of motion for leave to appeal, and paragraph 9 of these reasons.

Analysis

[14] In relation to issue “a” advanced by the Township for proposed consideration by the Divisional Court:

• As noted above, the provisions in s.34(25)(a)(i) of the Planning Act, supra, permit the OMB to dismiss all or part of an appeal without holding a hearing, on the motion of any party, if the OMB is of the opinion that the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Board could allow all or part of the appeal.
• The Board’s own jurisprudence has developed a number of principles it applies when approaching such motions. For example:
  • The Board has held that it is entitled to examine the reasons stated for the appeal to see “whether they constitute genuine, legitimate and authentic planning reasons”, determine “whether there are issues that should effect a decision in hearing”, and consider “whether the issues are worthy of the adjudicative process”.[^28]
  • The Board also has held that it is “entitled to go behind the stated reasons for the appeal to see whether they constitute genuine, legitimate and authentic planning reasons”.[^29]
  • The body of case law developed by the Board with respect to such motions for dismissal also has emphasized that it is not sufficient for an appellant to raise a “triable” issue, or cite grounds for appeal that are “within the realm of land use planning concerns”. For a matter to proceed to a full hearing before the OMB, an appellant may not simply raise apprehensions without demonstrating that there are legitimate land use planning concerns.[^30]
  • The same jurisprudence indicates that, in developing such principles, the Board has been particularly concerned about commercial enterprises trying to stop competitors from expanding, in the absence of legitimate land use planning concerns having any substance.[^31]
• As noted above, in this case, there was a fundamental threshold disagreement between the parties as to the circumstances in which the Township’s “s.34(25)(i)” motion did not succeed. In particular, in its leave motion material, the Township claimed that the Board “declined to hear the Township’s motion and commenced with the hearing”, culminating in a Board decision that failed to make any reference to the Township’s motion, or provide any reasons in that regard. In his responding leave motion material, Mr Snowden asserted that the Board “did not see fit” to dismiss the appeal without holding a hearing, but instead “found that there was adequate grounds and evidence for the appeal”.
• Although s.34(25) of the Planning Act is permissive, (in the sense that the OMB “may” dismiss all or part of an appeal without a hearing but is not compelled to do so), in my view, a demonstrated refusal by the OMB to even consider a motion properly brought pursuant to that section would raise an issue of law. In particular, as the legislation expressly contemplates and permits such motions, a refusal by the OMB to even entertain such a motion arguably would constitute a wrongful decline of jurisdiction.[^32]
• In my view, dismissal of such a motion without reasons also would raise an arguable issue of law, of general application, in that insufficiency of reasons is not consistent with fundamental principles of justice.[^33]
• However, the record before me fails to provide any evidence that the Board in this case committed such failings. In particular, while the making of such a motion by the Township and its lack of success are not disputed, (and therefore require no evidentiary basis for purposes of this motion for leave to appeal), there is absolutely nothing in the record before me to substantiate the Township’s bald claims that the Board simply “declined to hear the Township’s motion” and “failed to provide reasons for [its] decision”[^34], and Mr Snowden’s material asserts that the Board did exercise its discretion in relation to the Township’s motion, but did not see fit to dismiss Mr Snowden’s appeal in whole or part without a hearing, and instead found there were adequate grounds and evidence for the appeal.[^35]
• As noted above, the Township has the onus of demonstrating that the circumstances raise an arguable issue of law, and in my view the material filed simply fails to do so in relation to proposed issue “a”.
• Moreover, even if the material filed by the Township had provided a basis for arguing that the Board wrongfully declined jurisdiction or failed to provide sufficient reasons in relation to the particular s.34(25) motion brought by the Township in this particular case, it seems to me that such an idiosyncratic and case-specific failing, while significant from the Township’s perspective, would not be of sufficient general or public importance, in the sense required, to merit the attention of the Divisional Court.
• In its submissions, the Township also argued, somewhat inconsistently, that there was “good reason to doubt the correctness of the Board’s decision to not dismiss the appeal without a hearing for lack of land use planning grounds”.[^36] [Emphasis added.] In my view, the authorities do not contemplate application of the reasonableness standard to a non-decision, as opposed to a stated and reasoned decision which can then be properly assessed as falling or not falling within the range of acceptable outcomes that deference may require a reviewing court to accept. However, even if the Board actively did make a decision not to dismiss Mr Snowden’s appeal without a hearing, it seems to me that consideration of whether the Board acted reasonably in doing so, having regard to the specific circumstances of Mr Snowden’s application, (e.g., whether the particular stated reasons for Mr Snowden’s appeal or the particular broader considerations behind those stated reasons, constituted “genuine, legitimate and authentic planning reasons”), would suffer from the same fatal defect noted above, in terms of satisfying the applicable test for leave to appeal. Such an issue inherently would focus on idiosyncratic case-specific matters that are not of sufficient general or public importance, in the sense required, to merit the attention of the Divisional Court.

[15] In relation to issues “b”, “f”, “g” and “h” advanced by the Township for proposed consideration by the Divisional Court, it seems to me that the characterizations and arguments put forward by the Township in support of its request for leave to appeal suffer from similar and/or related weaknesses, making it appropriate to address the proposed issues together. In particular:

• In my view, each of those proposed issues is framed in a manner inaccurately suggesting that this particular OMB decision has more extensive formal ramifications than it actually does. In that regard:
  • In its written and oral submissions, the Township clearly and repeatedly emphasized, in various ways, its very serious concern that the Board’s decision in this particular case “effectively” has “quashed”, fundamentally and substantially “changed the legal effect”, and/or otherwise brought into question not only the designation and zoning applicable to Mr Snowden’s property, but “the designations and zoning over all the lands within the jurisdiction of the County and Township”. In the Township’s view, that supposed impact of the decision, made long after the time permitted for appealing the relevant official plans and zoning implementation, “cannot be underestimated”, and cannot be “left uncontested and uncorrected”.
  • In a similar manner, the Township repeatedly emphasized, in various ways, the perceived unfairness and denial of fundamental injustice implicit in that supposed impact being brought about through a process wherein the Township was provided with little or no notice that the validity of the HCOP and/or TOP would be impugned or invalidated in such a manner, thereby effectively denying the Township an opportunity to address such concerns through proper preparation, evidence and argument.
  • The formal relief granted by the Board in this particular case nevertheless is actually quite narrow and specific. In particular, the formal order granted by the Board simply allows Mr Snowden’s appeal, and directs preparation of a very specific amendment to the TCZB in relation to a very specific and relatively small portion of land; i.e., 0.44 hectares of property at the southeast corner of Mr Snowden’s property. The orders actually made by the Board contain no formal declarations invalidating any designations or zoning provisions of the HCOP, TOP or TCZB. In my view, the issues sought to be appealed by the Township effectively and primarily target certain perceived reasons for the Board’s decision, and not the decision itself.
  • While the reasons of the Board include an ostensibly broad statement and finding that restricting lands uses within St Helens to residential ones does not maintain the existing rural and agricultural character of the community, contrary to provisions of the PPS and HCOP emphasizing the importance of farming and support for agriculture, that was then narrowed by the Board to the more relevant and necessary specific finding and conclusion that the accessory building erected by Mr Snowden was consistent with those provisions of the PPS and HCOP, and similar policy directions found in the TOP.
  • Moreover, although the Board’s reasons clearly contain comments on the manner in which rezoning changes were introduced by the HCOP and TOP, and opinions that the process was unfair and/or otherwise contrary to s.34(12) of the Planning Act, supra, in my view, a careful reading of the Board’s decision makes it clear that the Board’s comments in that regard were obiter. In particular, before embarking on such comments and/or purported findings, the Board already had reached and stated what it later confirmed to be its final conclusion: that Mr Snowden’s “accessory building, erected solely for agricultural uses, fits the character of the surrounding area, is consistent with Provincial policy as well as in conformance with the policy direction of the HCOP and TOP”.[^37] That conclusion provided a sufficient basis for finding that the Township was wrong to deny Mr Snowden’s zoning amendment application, to permit that consistent and conforming use, and it was a conclusion based on provisions of the HCOP and TOP the Board obviously considered valid and binding. In the circumstances, there was no need for the Board to go further, comment on the rezoning process adopted by the County and/or Township, and/or make any purported findings of unfairness or nonconformity in that regard. Such comments therefore inherently were obiter in nature.
  • Furthermore, the suggestion or fear that the Board’s comments have widespread ramifications, extending beyond this particular case and the parties to it, ignores the expressly evidence specific and fact dependent nature of the Board’s comments. In that regard, the Board’s remarks concerning possible failure to maintain the rural and agricultural character of St Helens and perceived unfairness or non-conformity of certain designations and rezoning were not based on any concerns intrinsic to the HCOP, TOP or TCZB provisions themselves. To the contrary, the Board repeatedly indicated that its comments were based on evidence received, during the particular hearing before it, relating to extrinsic concerns about the practical impact of the legislation in St Helens and appropriate process that may or may not have been followed in relation to the residents of St Helens. For example, the Board found “on the evidence” before it that restricting land uses within St Helens to residential ones did not maintain its existing rural and agricultural character. Similarly, the Board expressly noted that it relied, inter alia, on “un-contradicted evidence that the overwhelming majority of the residents of St Helens had no idea as to the long-term significance to their economic well-being and their way of life that the changes to the HCOP and to the TOP restricting future uses of their lands to residential would bring”. Similarly, the Board expressly noted and relied upon specific responses provided by Ms Walker-Bolton, indicating aspects of her personal experience with the process by which the zoning of Mr Snowden’s land was changed. In my view, there is nothing to suggest that the Board’s obviously fact and evidence dependent views in this particular case would or should be binding in relation to later matters where the Board might be presented with a different and contested evidentiary record for consideration.[^38]
  • In that regard, it must also be remembered that the Board’s comments about community character were focused only on the tiny hamlet of St Helens. Similarly, the process-related evidence and comments of the Board focused on what may or may not have been done to apprise residents of that tiny hamlet about the long-term significance of rezoning changes. The experience of those residents, relatively limited in number, may or may not have been replicated elsewhere in the county.
  • If the Board’s decision in this particular case did have the effect of quashing, fundamentally changing or otherwise invalidating designations and zoning provisions on a widespread basis throughout the County or Township, that obviously would be a factor militating strongly in favour of a conclusion, for the purposes of granting leave to appeal, that the decision raised issues of sufficient general or public importance, in the sense required, to merit the attention of the Divisional Court. However, for the reasons outlined above, it actually did not have that effect. The Board’s particular decision actually was quite narrow in effect, case-specific, and dependent on particular evidence and resulting factual determinations. In my view, the Divisional Court need not and should not devote its limited time to the hearing of appeals focused on whether obiter and/or evidence-specific comments in the reasons leading to a narrow OMB decision were incorrect or unreasonable.
• To the extent such proposed issues focus on whether it was proper for the Board to consider matters relating to the validity of the HCOP and TOP designations and zoning policies at all, (e.g., on the basis they were not expressly raised by Mr Snowden’s notice of appeal framing the issues and consideration of such issues thus exceeded the Board’s jurisdiction), the proposed issues might raise questions of law amenable to appellate consideration by the Divisional Court. However, while Mr Snowden was not formally appealing a by-law or seeking an amendment to any Official Plan, in completing the appropriate Appellant Form (A1), Mr Snowden did indicate his intention to argue that his requested amendment to the TCZB should be granted for reasons that included a contention that the agricultural zoning of his property, in fact used for agricultural purposes, “had been changed to another designation without his knowledge”. Moreover, it is now well-established that a tribunal such as the OMB, while lacking a free standing authority to make determinations as to the validity of legislation, has jurisdiction to make incidental and necessary determinations concerning the validity of laws that may or may not bind the tribunal in addressing the issues before it.[^39]
• To the extent such proposed issues would go beyond consideration of whether the Board should have addressed such matters at all, and focus instead on whether the Board was correct or reasonable in expressing its views about the fairness or conformity of designations and rezoning, it seems to me, for the reasons noted above, that the Board’s comments clearly were evidence specific and fact dependent. They accordingly do not raise pure questions of law, but questions of mixed law and fact which may not be appealed from the OMB to the Divisional Court.

[16] In relation to issue “c” advanced by the Township for proposed consideration by the Divisional Court:

• The Township wishes to argue that the Board, in making a finding that the TCZB be amended, “erred in law in its interpretation of subsection 34(11.0.2) of the Planning Act”, supra.
• The provisions in question simply provide that the OMB shall hear an appeal brought from a Council’s refusal to grant or address an application for an amendment to a by-law, and then: dismiss the appeal; amend the by-law in such manner as the Board may determine; or direct that the by-law be amended in accordance with the Board’s order. As framed by the Township, the proposed issue does not, in itself, make clear the precise nature of the question the Divisional Court would be asked to consider and resolve.
• Clarification in that regard nevertheless is provided in paragraphs 38 and 39 of the primary factum filed by the Township.
• Paragraph 38 of the Township’s primary factum makes reference to section 88 of the Ontario Municipal Board Act, supra, which provides that: “Upon any application to the Board, the Board may make an order granting the whole, or part only, of the application or may grant such further or other relief in addition to, or in substitution for, that applied for as to the Board may appear just and proper as fully in all respects as if the application had been for such partial, other, or further relief.”
• Paragraph 39 of the Township’s primary factum then goes on to say the following: “The relief granted by the Board formed no part of the application. It cannot be said to be within the ‘other relief’ contemplated by section 34(11.0.2) or 88 above noted as it is so far outside of what could have been reasonably contemplated by the application as originally submitted and the appeal submitted. The ordered amendments have no nexus or connection to the application before Township Council or the Board and fundamentally changes the provisions of the Township Zoning Bylaw.”
• However, the suggested concern is difficult to understand if one focuses on what actually happened in this case. In particular:
  • Mr Snowden’s application before the Township Council sought an amendment of the TCZB to rezone a “small corner” of his property from “VR1” to “VR1-17”, so as to permit a shed built for storage, consistent with the property’s actual agricultural use, without first putting up a house.
  • The Township refused Mr Snowden’s application.
  • Mr Snowden appealed to the OMB, expressly indicating that he was appealing in relation to his “application for an amendment to the Zoning by-law refused by the municipality”.
  • The formal order made by the OMB, after hearing of the appeal, allowed the appeal and ordered preparation, for the Board’s consideration, of a specific draft zoning by-law amending the TCZB to indicate “that an approximately 0.44 ha portion at the southeast corner of Mr Snowden’s lands are rezoned so as to permit the subject accessory building as well as its use for storage and other farm-related uses”.
  • The relief actually granted by the Board therefore was entirely and precisely contemplated by Mr Snowden’s application and appeal, and had a very definite “nexus or connection” to the underlying application.
• In my view, the comments in paragraph 39 of the Township’s primary factum make it clear that proposed issue “c” for consideration by the Divisional Court actually focuses on the same inaccurate suggestions underlying proposed issues “b”, “f”, “g” and “h”; i.e., that that this particular OMB decision has more extensive formal ramifications than it actually does. Proposed issue “c” therefore suffers from the same weaknesses, identified above, and does not merit leave to appeal to the Divisional Court.

[17] In relation to issues “d” and “e” advanced by the Township for proposed consideration by the Divisional Court:

• Both ostensibly focus on concerns relating to the Board’s reliance on the PPS, with the proposed issue “d” making reference to the Board’s suggested “retrospective application” of the PPS to the HCOP, TOP and TCZB, and proposed issue “e” making particular reference to policy or paragraph 1.1.3.8(e) of the PPS, which reads as follows: “A planning authority may identify a settlement area or allow the expansion of a settlement area boundary only at the time of a comprehensive review and only where it has been demonstrated that … impacts from new or expanding settlement areas on agricultural operations which are adjacent or close to the settlement area are mitigated to the extent feasible”.
• However, the primary factum filed by the Township makes it clear that the two proposed PPS-related issues actually focus, once again, on the Township’s concerns relating to its perception that the Board’s decision effectively has quashed, fundamentally changed and/or otherwise brought into question its broader designations and rezoning; i.e., partly by reliance on provisions of the PPS. In particular, paragraphs 41 and 42 of its primary factum, (the only ones dealing with submissions in support of the Township’s request for leave to appeal proposed issues “d” and “e” to the Divisional Court), the Township simply cross-references its concerns relating to proposed issue “b”, (also cross-referenced and relied upon in relation to proposed issues “f”, “g” and “h”), without presenting any further basis for its leave request. In that respect, proposed issues “d” and “e” therefore once again suffer from the same weaknesses identified above, in relation to proposed issues “b”, “f”, “g” and “h”, and do not merit leave to appeal to the Divisional Court.
• Beyond such considerations, I am not persuaded, in any event, that there is good reason to doubt that it was incorrect or unreasonable for the Board to make use of the 2014 PPS in its approach to the interpretation and application of previously adopted official plans and zoning by-laws. In that regard:
  • I am inclined to think the standard of reasonableness applies, as the PPS is a policy issued pursuant to authority granted by the Planning Act, supra, and its interpretation and application therefore falls within the specialized expertise of the OMB. Appropriate deference accordingly must be shown to the Board’s decisions in that regard.
  • I was presented with no authority to support the proposition that the Board’s use of the 2014 PPS in dealing with previously adopted official plans and/or by-laws is unreasonable.
  • To the contrary, I am mindful of section 3(5) of the Planning Act, supra, which provides that “a decision of … a board, commission or agency of the government, including the Municipal Board, in respect of the exercise of any authority that affects a planning matter, … shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision”. No distinction whatsoever is made for planning matters that involve official plans or by-laws adopted prior to the issuing of a particular policy statement that might be in effect on the date of a decision required from the OMB.
  • Moreover, it seems to me that an ongoing requirement that OMB decisions are consistent with current policy statements, even when the decisions deal with previously adopted official plans and by-laws, is entirely sensible. Such official plans and by-laws otherwise would become a differentiated and monolithic planning regime, immunized from changes in provincial planning policy.
• In any event, for the reasons outlined above, the actual decision of the Board, (much more narrow and limited in scope than the Township suggested), was not dependent on application of the 2014 PPS, and its provisions in policy or paragraph 1.1.3.8(e) in particular. Apart from any consideration of the PPS, the Board also found that the restriction relied upon by the Township to refuse Mr Snowden’s zoning amendment application was contrary to Policy 7.2 of the HCOP.
• Proposed issues “d” and “e” accordingly do not merit leave to appeal to the Divisional Court.

[18] In relation to issue “i” advanced by the Township for proposed consideration by the Divisional Court:

• The Township wishes to argue that the Board erred in law in its interpretation of the development standards required by paragraph or policy 8.4.4.9 of the TOP, setting forth the “Development Standards” applicable to all development in the Township’s hamlets and villages.
• In that regard, the Township says that, in finding Mr Snowden’s proposed development conformed to the rural and agricultural character of the hamlet of St Helens, the Board unreasonably inserted “its own determination of the character and development standard” into the context of an area that was not “rural” and “agricultural” but “residential”.
• The suggestion was not supported by any analysis or authority. Nor did the Township offer any further details or specifics of the Township’s arguments in that regard. In my view, such considerations make it difficult to understand how the Township hoped to demonstrate satisfaction of the requirements for leave to appeal, (including good reason to doubt the correctness or reasonableness of the Board’s decision), especially when the relevant Development Standards contain no express reference to the terms “rural”, “agricultural” and “residential”, and the Board itself made no direct reference to paragraph or policy 8.4.4.9 of the TOP.
• In any event, I fail to see how the suggested issue, at its highest, raises any question of sufficient general or public importance meriting the attention of the Divisional Court. Again, it must be remembered that the Board’s actual conclusion and corresponding order were quite limited in scope, and focused on the narrow question of whether, on the evidence, the particular accessory building erected by Mr Snowden fit the rural and agricultural character of its surrounding area, making it consistent with provisions of the PPS, HCOP and TOP emphasizing the importance of farming and support for agriculture. The impact of any possible resulting inconsistency with the development standards of the Township was similarly limited.
• Proposed issue “i” accordingly does not merit leave to appeal to the Divisional Court.

[19] In relation to issue “j” advanced by the Township for proposed consideration by the Divisional Court:

• The Township wishes to argue that the Board “erred in law (and exceeded its jurisdiction)”, in its interpretation of the TCZB, by finding that the current “Village/Hamlet Residential – Low Density Zone” zoning, established in 2008, does not conform to the PPS, HCOP and TOP.
• However, the Township’s submissions in that regard once again include cross-referenced reliance on the same submissions advanced in relation to proposed issues “b”, “d”, “e”, “f” and “g”, effectively indicating that proposed issue “j” once again focuses on the same inaccurate suggestions underlying those proposed issues; i.e., that that this particular OMB decision has more extensive formal ramifications than it actually does. Similarly, the Township contended that the Board lacked jurisdiction to make such determinations “based on the dates such documents came into effect”; i.e., echoing the points raised earlier, in relation to other proposed issues, about the Board’s supposed quashing of official plans and by-laws beyond appeal dates and/or applying the 2014 PPS to previously adopted official plans and by-laws. Proposed issue “j” therefore suffers from the same weaknesses identified above, and in my view does not merit leave to appeal to the Divisional Court.

[20] As for issue “k” advanced by the Township for proposed consideration by the Divisional Court:

• The Township wishes to argue that the Board “erred in law by failing to protect the Township’s right to procedural fairness and natural justice when in [sic] ruled in favour of the Applicant notwithstanding the that [sic] Applicant did not call any land use planning evidence to support its Appeal and did not deliver legal argument upon which the appeal could be granted.”
• I was provided with no authority indicating or confirming the precise meaning or bounds of “land use planning evidence”, nor any authority indicating or suggesting that land use planning evidence supporting an appeal necessarily had to be called by an applicant, or introduced through an expert professional planner. In the result, it seems to me that the broad assertions of the Township are suspect, (in turn making me doubt that there is “good reason to doubt” the approach taken by the Board in that regard), having regard to the realities that:
  • in addition to the evidence called by the Township through Ms Walker-Bolton, the Board was presented with evidence from Mr Snowden, evidence from other recognized participants from the community, and evidence elicited from Ms Walker-Bolton in cross-examination and/or questioning by the Board;
  • the Board itself clearly regarded such evidence, in conjunction with provisions in the PPS, HCOP and TOP emphasizing the importance of farming and support for agriculture, to be relevant to land use planning; and
  • the Board’s special expertise certainly would seem to extend to what evidence should and should not be regarded as relevant land use planning evidence, meriting court deference.
• I similarly was not provided with any authority indicating or suggesting that the Board’s authority to allow an appeal, based on the evidence before it and its own specialized expertise in such matters, was necessarily constrained by possible deficiencies in the presentation of an appellant’s legal arguments.
• In any event, it seems to me that a proposed issue for appeal, inherently dependent on the particular evidence filed or not filed in an individual case, or the specific legal arguments advanced or not advanced by a particular appellant in such a case, would not be of sufficient general or public importance, in the sense required, to merit the attention of the Divisional Court.
• Proposed issue “k” therefore also does not merit leave to appeal to the Divisional Court.

[21] For the reasons outlined above, the Township’s motion for leave to appeal from the relevant OMB decision to the Divisional Court is dismissed.

Costs

[22] Because my decision was reserved, the parties were unable to make any submissions regarding costs, having regard to the substantive outcome of the leave motion.

[23] It is always preferable for parties to discuss and agree on cost resolutions acceptable to all concerned.

[24] However, if the parties are unable to reach an agreement on entitlement and/or quantum in relation to outstanding cost issues:

a. Mr Snowden may serve and file written cost submissions, not to exceed five pages in length, (not including any bill of costs, settlement offers, authorities or other necessary attachments), within two weeks of the release of this decision;

b. The Township then may serve and file responding written cost submissions, also not to exceed five pages in length, (not including any necessary attachments similar to those described in the previous sub-paragraph), within two weeks of service of Mr Snowden’s written cost submissions; and

c. Mr Snowden then may serve and file, within one week of receiving any responding cost submissions from the Township, reply cost submissions not exceeding two pages in length.

[25] If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs awarded in relation to the leave motion.

Justice I. F. Leach

Date: November 14, 2017

[^1]: The original HCOP was adopted in 1973. The version presented in evidence was the one consolidated as of June 3, 2013. [^2]: It seems the TOP was approved in October of 2003, and amended in November of 2013. [^3]: The version filed in evidence is described therein as the “Township of Ashfield-Colborne-Wawanosh Zoning By-law 32-1008, As Amended”. It apparently was approved in June of 2008, and updated/consolidated in March of 2015. [^4]: Pursuant to s.3(1) of the Planning Act, supra, “The Minister, or the Minister together with any other minister of the Crown, may from time to time issue policy statements that have been approved by the Lieutenant Governor in Council on matters relating to municipal planning that, in the opinion of the Minister, are of provincial interest.” [^5]: The municipal address of the relevant property is 85619 Henry Street, within the hamlet of St Helens. It more specifically is identified as Lot 38 and Part Lot 35, on Plan Number 302 and RP 22R4286, in the ward of Wawanosh. [^6]: The storage building is 23 feet high, 64 feet wide and 72 feet deep. It therefore has a ground floor area of 4,608 square feet, and covers approximately 10% of Mr Snowden’s property. Several photograph of the structure, and the surrounding land on which it sits, depict a rectangular building with a pitched roof comprised of two slopes leading up to a ridge running down the centre of the structure. At one end of the building, (accessed by a short gravel drive leading off the nearby gravel road), there are two large vehicular doors, two much smaller windows, and a pedestrian door. Smaller rectangular windows are spaced evenly along the two sides of the building. [^7]: As discussed in more detail below, there effectively was a fundamental disagreement between the parties, in relation to the motion before me, as to the circumstances in which the Township’s “s.34(25)(i)” motion did not succeed. In its leave motion material, the Township claimed that the Board “declined to hear the Township’s motion and commenced with the hearing”, culminating in a Board decision that failed to make any reference to the Township’s motion, or provide any reasons in that regard. In his responding leave motion material, Mr Snowden asserted that the Board “did not see fit” to dismiss the appeal without holding a hearing, but instead “found that there was adequate grounds and evidence for the appeal”. [^8]: There apparently was a one day interval in the hearing, which did not proceed on January 13, 2016. [^9]: See the Ontario Municipal Board Act, R.S.O. 1990, c.O.28, s.96(1). Pursuant to the combined effect of Rule 61.03 of the Rules of Civil Procedure, and ss.21(3) and 18(3) of the Courts of Justice Act, R.S.O. 1990, c.C.43, a request for such leave is made by a motion brought before a single judge of the Superior Court of Justice, sitting in his or her capacity as a judge of the Divisional Court. [^10]: See, for example: Essex (City) v. Material Handling Problems Solvers Inc., [2003] O.J. No. 4619 (Div.Ct.), at paragraph 3; Ontario (Legislative Assembly) v. Avenue-Yorkville Developments Ltd., 2011 ONSC 258, [2011] O.J. No. 110 (Div.Ct.), at paragraph 2; Toronto (City) v. SheppBonn Ltd., [2014] O.J. No. 4807 (Div.Ct.), at paragraph 11; Ontario (Minister of Municipal Affairs and Housing) v. Miller, 2014 ONSC 6131, [2014] O.J. No. 5431 (Div.Ct.), at paragraph 7; and Cardinal v. Windmill Green Fund LPV, [2016] O.J. No. 2707 (Div.Ct.), at paragraph 7. [^11]: See, for example, Ontario (Minister of Municipal Affairs and Housing) v. Miller, supra, at paragraph 22. [^12]: See, for example: Ontario (Legislative Assembly) v. Avenue-Yorkville Developments Ltd., supra, at paragraph 4; and Hobo Entrepreneurs Inc. v. Sunnidale Estates Ltd., [2013] O.J. No. 445 (Div.Ct.), at paragraph 10. [^13]: See, for example: Concerned Citizens of King Township v. King (Township), [2000] O.J. No. 3517 (Div.Ct.), at paragraph 9; Simon v. Bowie, [2010] O.J. No. 6098 (Div.Ct.), at paragraphs 6-7; and Ottawa (City) v. 267 O’Connor Ltd., [2016] O.J. No. 624 (Div.Ct.), at paragraph 10. [^14]: See, for example: Toronto (City) v. 2059946 Ontario Ltd., [2007] O.J. No. 3021 (Div.Ct.), at paragraph 4; Ontario (Legislative Assembly) v. Avenue-Yorkville Developments Ltd., supra, at paragraph 6; and Hobo Entrepreneurs Inc. v. Sunnidale Estates Ltd., supra, at paragraph 6. [^15]: See, for example: Niagara Escarpment Commission v. Paletta, [2007] O.J. No. 455 (Div.Ct.), at paragraph 3; and Hobo Entrepreneurs Inc. v. Sunnidale Estates Ltd., supra, at paragraph12. [^16]: See Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 59; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at paragraph 32; and Toronto (City) v. SheppBonn Ltd., supra, at paragraphs 8-10. Like any administrative body or tribunal, the OMB must be correct in its determinations of true questions of jurisdiction or vires. The OMB must interpret the grant of authority correctly, or its actions will be ultra vires or constitute a wrongful decline of jurisdiction, as the case may be. [^17]: See Train v. Weir, [2012] O.J. No. 5342 (Div.Ct.), at paragraph 7, citing Dunsmuir v. New Brunswick, supra, at paragraph 47. [^18]: See s.96(4) of the Ontario Municipal Board Act, supra, and authorities such as the following: London (City) v. Ayerswood Development Corp., [2002] O.J. No. 400 (Div.Ct.), at paragraph 9; Essex (City) v. Material Handling Problems Solvers Inc., supra, at paragraphs 4 and 7; Toronto (City) v. Dorsay Investments, [2010] O.J. No. 2464 (Div.Ct.), at paragraph 18; Ontario (Legislative Assembly) v. Avenue-Yorkville Developments Ltd., supra, at paragraphs 7-8; Hobo Entrepreneurs Inc. v. Sunnidale Estates Ltd., supra, at paragraphs 12-13; Ottawa (City) v. Greater Ottawa Home Builders Assn., [2013] O.J. No. 3612 (Div.Ct.), at paragraphs 2-3; and Ontario (Minister of Municipal Affairs and Housing) v. Miller, supra, at paragraphs 10-11. [^19]: See Ontario (Alcohol and Gaming Commission) v. 751809 Ontario Inc., [2013] O.J. No. 1139 (C.A.), at paragraph 34; and Ottawa (City) v. Greater Ottawa Home Builders Assn., supra, at paragraphs 2 and 17. [^20]: See, for example: Russell v. Toronto (City) (2001), 2000 17036 (ON CA), 52 O.R. (3d) 9, at p.18; and Essex (City) v. Material Handling Problems Solvers Inc., supra, at paragraph 7. [^21]: See, for example: Toronto (City) v. 2059946 Ontario Ltd., supra, at paragraph 3; and Ontario (Legislative Assembly) v. Avenue-Yorkville Developments Ltd., supra, at paragraph 30. [^22]: See, for example: Ottawa (City) v. Greater Ottawa Home Builders Assn, supra, at paragraph 18. [^23]: See, for example: McCutcheon v. Westhill Redevelopment Co., [2008] O.J. No. 3206 (Div.Ct.), at paragraph 10; Toronto (City) v. SheppBonn Ltd., supra, at paragraph 18; Hobo Entrepreneurs Inc. v. Sunnidale Estates Ltd., supra, at paragraph 15; and Richmond Hill Naturalists v. Corsica Developments Inc., 2013 ONSC 7894, [2013] O.J. No. 5996 (Div.Ct.), at paragraph 24. [^24]: See Ontario (Legislative Assembly) v. Avenue-Yorkville Developments Ltd., supra, at paragraph 37. [^25]: See, for example: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.), at p.575; and McCutcheon v. Westhill Redevelopment Co., supra, at paragraph 11. [^26]: See, for example, Toronto (City) v. SheppBonn Ltd., supra, at paragraph 19. [^27]: See, for example: Central Park Lodges v. Caregard Group (2000), 13 M.P.L.R. (3d) 204 (Ont.Div.Ct.); and McCutcheon v. Westhill Redevelopment Co., supra, at paragraph 11. [^28]: See, for example: East Beach Community Association v. Toronto (City), [1996] OMBD. No. 1890; and Hanover County Fair Plaza v. Hanover (Town), [2005] OMBD No. 749. [^29]: See, for example: Orangeville (Town) Official Plan Amendment No. 86, [2004] OMBD No. 1269; and Hanover County Fair Plaza v. Hanover (Town), supra. [^30]: See, for example: Hanover County Fair Plaza v. Hanover (Town), supra. [^31]: See, for example: Anclare Holdings Inc. v. City of Brampton (1998), 36 OMBR 250; Mississauga (City) Official Plan Amendment No. 112 (Re), [2002] OMBD No. 385; Leamington Zoning By-law 4407-98 (Re) (1999), 38 OMBR 506; Ludington v. Ottawa (City), [2002] OMBD No. 1339; and Hanover County Fair Plaza v. Hanover (Town), supra. [^32]: Again, see the authorities cited in footnote 16, supra. [^33]: See, for example, R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, in which Justice Binnie emphasized, at paragraph 55, that the delivery of reasoned decisions is inherent in the role of a judge, and part of his or her accountability for the discharge of the responsibilities of his office. A judge accordingly must deliver a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review. While Sheppard and similar decisions focus on judicial decision making, principles of fundamental justice also apply in the context of administrative law decisions, including decisions by the OMB. See, for example: Re Cloverdale Shopping Centre Ltd. And Township of Etobicoke, [1966] 2 O.R. 439 (C.A.), at p.450; and London (City) v. Ayerswood Development Corp., [2002] O.J. No. 400 (Div.Ct.), at paragraphs 19-26. [^34]: See paragraph 24 of the primary factum filed by the Township. While the Township correctly notes that there was no mention of its motion in the Board’s final reasons for decision, in my view this is not evidence that the Board failed to consider, decide and give reasons in relation to the motion when it was brought. [^35]: See paragraph 57 of the primary factum filed by Mr Snowden. [^36]: See paragraph 27 of the Township’s primary factum. [^37]: The Board arrives at that conclusion in paragraph 37 of its reasons, (before embarking on any discussion of the process in which rezoning changes were introduced by the HCOP and TOP), and then repeats it almost verbatim at paragraph 42 when identifying its only formal conclusion. In particular, under the heading “CONCLUSION”, the Board sets forth a single paragraph that reads as follows: “On the balance of the evidence, the Board finds that an accessory building erected solely for agricultural uses fits the character of the surrounding area, is consistent with Provincial policy as well as in conformance with the policy direction of both the HCOP and TOP.” [^38]: I note, for example, that section 1.1 of the HCOP makes general references to processes that supposedly were undertaken to ensure that the HCOP represented an accurate representation of how fully informed and engaged residents of the county wanted to “chart their future”. For example, the HCOP states the following: “Huron County residents have been involved in a number of ways throughout the development of the original plan and subsequent reviews, completing action kits, participating in focus groups, workshops, public meetings, and sustainability planning exercises. Huron County residents have said what they like and dislike about their community, what they see for the future of their community, and have indicate appropriate actions to achieve their vision for their community.” Presentation and consideration of such evidence, including testimony of other planners and/or residents contradicting the evidence and assertions made in this case of inadequate efforts being made to apprise residents of the impact of zoning changes, might well lead to the Board to reach a different conclusion in future cases. [^39]: See, for example, Bell Canada v. C.T.E.A., 2003 SCC 36, [2003] 1 S.C.R. 884, at paragraph 47; and Goldlist Properties Inc. v. Toronto (City), [2003] O.J. No. 3931 (C.A.), at paragraph 41.