435454 Ontario Inc. v. Halton Regional Conservation Authority
CITATION: 435454 Ontario Inc. v. Halton Regional Conservation Authority, 2018 ONSC 1633
DIVISIONAL COURT FILE NO.: DC-17-0000075-00
DATE: 20180309
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, WILTON-SIEGEL and MYERS JJ.
BETWEEN:
435454 ONTARIO INC. Appellant
– and –
HALTON REGION CONSERVATION AUTHORITY Respondent
COUNSEL:
T. Frankel, C. Pendrith, Lawyers for the Appellant J. Wigley, Lawyer for the Respondent
HEARD at Brampton: March 8, 2018
Oral Reasons for Judgment
Myers, J. (Orally):
[1] The Applicant seeks an order of mandamus requiring the Respondent to consider its application dated July 29, 2013 for a permit under the Conservation Authorities Act.
[2] The requirements for obtaining a mandamus order were set out in Apotex Inc. v. Canada (Attorney General), 1994 47 (SCC), [1994] 3 S.C.R. 1100 at para. 55. Argument on this application focused on three of these requirements:
- There must be a public duty to act;
- The order sought must be of some practical value or effect;
- The court in the exercise of its discretion must find no equitable bar to the relief sought. In this case, the Respondent relies on delay as an equitable bar to relief.
[3] On the issue of a legal duty, we accept that the Respondent may well have a legal duty to process the Applicant’s application for a permit under s. 28 of the Conservation Authorities Act.
[4] However, as set out in Apotex, the Applicant must establish that the order sought will be of some practical value or effect. In this case, the Applicant has not met its onus on this question for two reasons. First, it is acknowledged that there is considerable doubt that the project that is the subject of the application will be developed. In addition and more important, the Applicant has not satisfied us that the project could be built without violating the provisions of the Provincial Policy Statement under the Planning Act, both as it stands today and as it stood when the Applicant made its Application.
[5] In Gilmor v. Nottawasaga Valley Conservation Authority, 2017 ONCA 414 at para. 51, the Ontario Court of Appeal held that a conservation authority is required to act in a manner consistent with the Provincial Policy Statement in exercising its own authority.
[6] On the basis of the evidence before us, the Applicant has not shown that any exception to the prohibition against development in a floodway contained in s. 3.1.2 of the Provincial Policy Statement could apply to the development referred to in its permit application. There is no evidence before us that the area in which the subject lands are located has been subject to floodplain management in accordance with the two-zone concept or that it has been designated as a “Special Policy Area” as defined in the Provincial Policy Statement. In our view, the ISPA relied upon by the Applicant, even if applicable to its application, could not bring the area in which the subject lands are located within the exceptions under the Provincial Policy Statement.
[7] Moreover, delay in the commencement of an application for mandamus can warrant dismissal of the application: Dolan v. Ontario Civilian Commission on Police Services, 2011 ONSC 1376 at para. 48. In O.P.S.E.U. v. Ontario (Ministry of Labour), [2001] O.L.R.B. Rep. 549 (Div. Court) the court held that a delay of six months or more in the commencement of an application could be serious enough to warrant dismissal of a mandamus application. In this case, while not determinative, we have a concern about delay.
[8] In all, the application is therefore dismissed.
Sachs J. (Orally):
[9] For reasons given orally by Myers J. this application is dismissed. Since the Respondent was successful on this Application, the parties have agreed that it is entitled to its costs fixed in the amount of $20,000, all-inclusive. It is so ordered.
Myers J.
I agree _______________________________
Sachs J.
I agree _______________________________
Wilton-Siegel J.
Date of Reasons for Judgment: March 9, 2018
Date of Release:
CITATION: 435454 Ontario Inc. v. Halton Regional Conservation Authority, 2018 ONSC 1633
DIVISIONAL COURT FILE NO.: DC-17-0000075-00
DATE: 20180309
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, WILTON-SSIEGEL and MYERS JJ.
BETWEEN:
435454 ONTARIO INC. Appellant
– and –
HALTON REGION CONSERVATION AUTHORITY Respondent
ORAL REASONS FOR JUDGMENT
THE COURT
Date of Reasons for Judgment: March 9, 2018
Date Released: