Court File and Parties

2018 ONSC 2844 DIVISIONAL COURT FILE NO.: 692/17 DATE: 20180507

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: CITY OF TORONTO, Moving Party (Appellant) AND: AVENUE ROAD EGLINTON COMMUNITY ASSOCIATION (areca); building industry & land development association (bild); confederation of resident & ratepayer ass. (corra); deltera inc; lakeshore planning council corp; riocan real estate investment trust inc.; riocan holdings inc., riocan management inc., swansea area ratepayers group; terracap management inc., and teddington park residents association (tpra), Respondents

BEFORE: C. Horkins J.

COUNSEL: Brendan O’Callaghan, Kirsten Franz, and Matthew Schuman, for the Moving Party (Appellant) Patrick Duffy, for the Respondents Deltera Inc and Riocan Chris Paliare and Richard Stephenson, for Respondent Building Industry & Land Development Association (BILD) Stan Floras, for the Ontario Municipal Board

HEARD at Toronto: April 27, 2018

ENDORSEMENT

[1] The City of Toronto (“the City”) brings a motion seeking leave to appeal an order of the Ontario Municipal Board (“OMB”) dated November 2, 2017 that adjourned the hearing of an appeal from Official Plan Amendment 258 (“OPA 258”). I have decided to grant leave. These reasons are brief because I should not delve into the issues that will be decided by the panel.

[2] Ordinarily, leave to appeal an order adjourning a hearing would not be granted. On its face an adjournment order is a procedural order that would rarely raise a question of law. This is an unusual situation where a question of law is raised by the OMB’s order.

[3] A decision of the OMB is final and can only be appealed on a question of law with leave. Leave is granted if the following test is met:

(i) The proposed appeal raises a question of law;

(ii) There is good reason to doubt the reasonableness of the decision; and

(iii) The question of law is of sufficient general or public importance to merit the hearing of an appeal

[4] The City passed OPA 258 on July 11, 2014. As the OMB noted, OPA 258 implements the new Development Permit System that is a significant and fundamental change in how municipalities in the province implement an official plan and govern planning and development. It is intended to provide greater land use predictability in a given development permit area.

[5] OPA 258 sets out the broad policy framework for the entire city. How these policies will be implemented in individual and unique neighbourhoods is addressed in development permit by-laws that will be enacted in the future. A development permit by-law will be specific to a neighbourhood and so the content of such by-laws will vary depending on the geographic area of the City that the development permit by-law covers.

[6] OPA 258 was appealed to the OMB. Two years later, after three pre-hearing conferences, the hearing of the appeal was scheduled. It did not proceed because the respondents brought a motion to adjourn the hearing of the appeal until the City passed a development permit by-law. The respondents argued that they could not assess the merits of OPA 258, without a development permit by-law to show how the new system would work in practice.

[7] The OMB issued an order that adjourned the hearing of the appeal without a fixed return date for the appeal. The OMB ordered that the appeal was adjourned until the City enacted a development permit by-law in final form and the appeal period for the by-law had expired. If there was an appeal of the development permit by-law, the OMB simply said it would consider such procedural matters that arose from the appeal. If the City does not pass a development permit by-law within a year, the OMB ordered the City to report on its efforts to do so.

[8] In making this order, the OMB acknowledged that it “cannot order the City to pass a [development permit by-law] now or ever”.

[9] The City states that the OMB erred in law in allowing the adjournment because it has ordered the City to do what it acknowledged it has no power to do: pass a development permit by-law.

[10] The City argues that the OMB order has imposed an obligation on the City that does not exist in the Planning Act, R.S.O. 1990, c. P. 13. It says that under s. 17(44) of the Planning Act, it is entitled to have its appeal heard, without having to enact development permit by-law. This section states:

On an appeal to the Tribunal, the Tribunal shall hold a hearing of which notice shall be given to such persons or such public bodies and in such manner as the Tribunal may determine.

[11] The City states that the OMB has never ordered a municipality to pass a by-law as a condition to the hearing of an OPA appeal going ahead. The respondents offered no decisions to dispute this point.

[12] The City has identified questions of law that I describe as follows. Did the OMB have the power to order the City to enact a development permit by-law? Is the City entitled under s. 17(44) of the Planning Act to have the appeal of OPA 258 adjudicated before enacting a development permit by-law?

[13] Given the OMB’s acknowledgment that it cannot order the City to pass a development permit by-law, there is good reason to doubt the reasonableness of the OMB’s order.

[14] Finally, the questions of law are of sufficient general or public importance to merit the hearing of an appeal. The appeal concerns the new Development Permit System that is a significant and fundamental change in how municipalities in the province will govern planning and development.

[15] The parties are encouraged to agree on costs, if requested. If costs cannot be settled then they will exchange and file brief two page submissions by May 31, 2018.

C. Horkins J.

Date: May 7, 2018