CITATION: The Corporation of the Town of Oakville v. ClubLink Corporation ULC, ClubLink Holdings Limited, 2018 ONSC 589
DIVISIONAL COURT FILE NO.: 17-0610-ML
DATE: 20180125
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
The Corporation of the Town of Oakville
Moving Party
– and –
ClubLink Corporation ULC, ClubLink Holdings Limited
Responding Parties
Robert D. Howe and Nadia Chandra, for the Moving Party
Mark R. Flowers and Kate Fairbrother, for the Responding Parties
HEARD at Toronto: December 14, 2017
H. Sachs J.
Introduction
[1] The Responding Parties (“ClubLink”) submitted an application to the Moving Party (the “Town”) in support of a request to amend the Town’s Official Plan, the Town’s Zoning By-Law and for approval of a plan of subdivision to replace a golf course with a residential and commercial mixed-use development (the “Applications”). The Town advised ClubLink that all of the materials it required to process the Applications had not been provided and therefore the Town was not prepared to consider its Applications. ClubLink disagreed with the Town’s requirement for additional information and material and brought a motion for directions to the Ontario Municipal Board (the “Board”) to determine if the Town’s requirements were reasonable.
[2] In a decision dated June 7, 2017 the Board decided that the Town’s requirements were not reasonable and decided that ClubLink’s Applications should be considered “complete” as of the date of its decision, namely, June 7, 2017 ( the “Original Decision”). Once the Applications were considered “complete” the Town had a certain period of time to make a decision on the Applications before ClubLink’s right to file an appeal to the Board was triggered.
[3] ClubLink requested that the Chair of the Board review and vary the Original Decision and, in particular, asked the Chair to determine that the Applications were “complete” as of the date they were submitted to the Town, namely, November 10, 2016. On October 3, 2017, the Board issued a decision signed by the Executive Chair and the Associate Chair granting ClubLink’s request to vary the Original Decision and finding that ClubLink’s Applications were complete as of November 10, 2016 (the “Review Decision”).
[4] On this motion the Town seeks leave to appeal the Review Decision on the basis that it is unreasonable, contrary to the public interest and undermines the fundamental objectives of the Planning Act, R.S.O. 1990, c. P.13 (the “Act”).
[5] The thrust of the Town’s submission is that the consequence of the Review Decision is that a municipality could be deprived of an opportunity to consider an application in a situation where it makes a demand for further material that the Board later determines to be unreasonable. This is because of the fact that by the time the Board makes its decision as to the reasonableness of the municipality’s demands, the municipality’s time period for considering the application under the Act will have expired. The Act provides that if a municipality has not considered an application to amend an official plan or register a subdivision within 180 days after it is received then the applicant may go directly to the Board for a decision. In the case of a request to amend a by-law the period is 120 days. Thus, in the case at bar, by the time the Board issued its Original Decision in June of 2017 ClubLink had the immediate right to apply directly to the Board for a decision on its applications as those applications were deemed “complete” more than 180 days earlier.
[6] In response, ClubLink submits that there is nothing unreasonable about a decision that requires a municipality to act in a reasonable manner when it refuses to consider an application because it feels it needs further information. According to ClubLink, the Review Decision is both consistent with the purpose of the Act, the scheme of the Act and the express wording of the legislation. Finally, ClubLink points out that in this case the Town did have the opportunity to consider its Applications and thus, the substantial issue raised by the proposed appeal is virtually moot as between the parties.
[7] For the reasons that follow, I would deny the motion for leave to appeal. In summary, I find that while there may be an argument for an alternative interpretation of the Act as urged by the Town, this is not sufficient to cause me to believe that there is a serious debate as to the reasonableness of the Review Decision, especially when that decision is neither inconsistent with the express purposes of the Act, nor inconsistent with the express wording or scheme of the Act. As the Supreme Court of Canada held in British Columbia (Securities Commission) v. McLean, 2013 SCC 67, [2013] S.C.R. 895, in considering whether a tribunal’s decision is reasonable, the inquiry is not whether another reasonable interpretation exists; rather, the tribunal has the “interpretive upper hand” such that deference is owed to any reasonable interpretation. I also find that leave should not be granted because there are no significant outstanding issues between the parties on the matter that is the subject of the proposed appeal.
Factual Background
[8] ClubLink is the owner of lands where the Glen Abbey Golf Course is located (the “Subject Lands”). In October of 2016 ClubLinks contacted the Town to discuss the potential land use planning applications it proposed to file to permit the redevelopment of the Subject Lands. After holding a meeting with ClubLink and consulting with a number of people and agencies, the Town enacted an interim control by-law respecting the Subject Lands on February 1, 2016 (the “Interim Control By-Law”). The effect of the Interim Control By-Law was to restrict the use of the Subject Lands to its existing uses for a period of one year. The purpose of the Interim Control By-Law was to allow the Town to complete three studies: a town-wide urban structure review, a land use economic impact analysis and a cultural heritage assessment.
[9] ClubLink appealed the passage of the Interim Control By-Law to the Board. On May 10, 2017, the Board upheld the passage of the Interim Control By-Law, finding that it was necessary to allow the Town to complete an urban structure review study and a cultural heritage impact assessment prior to further detailed consideration of the land use changes proposed by ClubLink to the Subject Lands.
[10] On November 10, 2016, ClubLink submitted its application to the Town for a request to amend the Town’s Official Plan, the Town’s Zoning By-Law and an application for approval of a plan of subdivision (the “Applications”). ClubLink sought to facilitate the redevelopment of the Subject Lands by replacing the golf course with a residential and commercial mixed-use development.
[11] On December 8, 2016, the Town advised ClubLink that because the Town’s three studies were still underway, the Town had deemed the Applications to be incomplete and was, therefore, refusing to accept or to further consider them.
[12] In response, ClubLink made a motion for directions to the Board seeking an order determining that ClubLink had provided the Town with all prescribed information and that the Applications were complete as of the date they were submitted, i.e. November 10, 2016. The Town replied by stating that ClubLink had failed to provide three items that it needed to process the Applications, namely an assessment of the proposed redevelopment on the Town’s urban structure, an analysis of the economic impact of the loss of the golf course on the Town and a draft Official Plan Amendment containing an area-specific plan or policies.
[13] On June 7, 2017 the Board issued the Original Decision in which it found that ClubLink had provided the Town with all the information and material required to process the Applications. The Board also determined that that the additional information requested by the Town was unreasonable:
[It was] unreasonable to require an applicant to carry out studies which both Town staff and Council have determined to be within the Town’s mandate and responsibility to independently commission in order to make informed decisions on an any applications concerning ClubLink lands. It is up to Council to be the guardian of the public interest, not individual applicants, irrespective of the scale of a proposal. The fact that all of the studies are well underway and perhaps even overdue, further buttresses the Board’s finding that the Town’s position is not reasonable.
[14] The Town has not appealed this finding.
[15] In the Original Decision the Board also found that ClubLink’s Applications were complete as of the date of its order, namely June 7, 2017.
[16] Both the Town and ClubLink applied to review the Original Decision. The Town’s request was denied and the subject of that request has no relevance to the motion for leave. ClubLink’s request was allowed and in the Review Decision, the Board varied the Original Decision and found that ClubLink’s Applications were “complete” as of the date they were filed, namely November 10, 2016. In doing so the Board stated as follows:
In our view, the Board made an error of statutory interpretation when it ordered the ClubLink Applications complete as of the date of the Decision. Subsections 22(6.2), 34(10.5), and 51(19.2) of the Planning Act authorize the Board to determine whether all prescribed information and material has been provided, or whether a municipal requirement for other information and material is reasonable. In the event the Board arrives at a finding that affirms prescribed information and material as complete, or declares as unreasonable a request for additional information and material, it necessarily and logically follows that for the purposes of appeal, the date the applications were received is the triggering date. There simply is no provision in the legislation requiring the Board to make any determination of a date in connection with its obligation in subsections 22(6.2), 34(10.5), and 51(19.2) of the Planning Act. The legislative scheme attends to timing once those findings are made.
The Test on a Motion for Leave to Appeal
[17] The test on a motion for leave to appeal to the Divisional Court from a decision of the Board is well-settled:
(1) There must be good reason to doubt the reasonableness (formerly “correctness”) of the decision from which leave is being sought, and
(2) The appeal involves a question of law that is of sufficient importance to warrant the attention of the Divisional Court (see Re Ottawa (City) By-Law No. 2012-147, 2013 ONSC 5062 (Div. Ct.)).
[18] In recent years the Divisional Court has consistently held that, in considering the first branch of the test, it is appropriate to apply the standard of review applicable based on the issues raised in the appeal. It is inappropriate to grant leave to appeal by applying a less deferential standard where the appeal is unlikely to succeed when a more deferential standard is applied (see Avery v. Pointers Protection Ass’n, 2016 ONSC 6463; Train v. Weir, 2012 ONSC 5157; Richmond Hill Naturalists v. Corsica Developments, 2013 ONSC 7894; Ottawa (City) By-Law).
[19] There is no dispute that the standard of review applicable to the issue raised in the proposed appeal is reasonableness. In the Review Decision the Board was interpreting the provisions of its home statute. Its expertise with respect to this statute and the policies underlying it were directly engaged.
Is There Good Reason to Doubt the Reasonableness of the Review Decision?
[20] According to the Town, the Review Decision’s interpretation of the legislation is neither supported by the plain language of the statute nor consistent with the policy considerations that underlie the legislation.
[21] Section 22(7) of the Act sets out when an applicant may appeal to the Board in respect of a request for an amendment to the Official Plan. It states that such a step can be taken if one of the conditions set out in subsection (7.02) is met. The relevant portion of subsection (7.0.2) reads as follows:
The conditions referred to in subsections (7) and (7.0.1) are:
- The council or the planning board fails to adopt the requested amendment within 180 days after the day the request is received.
[22] Section 34(11) contains a similar provision respecting the right to appeal to the Board in respect of a request to amend a by-law, except that in that case the right to appeal is triggered if council “refuses or neglects to make a decision on it within 120 days after the receipt by the clerk of the application”. Section 51(34) is the equivalent provision for the right to appeal in relation to a request to approve a plan of subdivision. In that case the time period is 180 days. The wording of these subsections, and the ones surrounding it that are relevant to this motion, mirror each other. Thus, for the purposes of this decision, I will focus on the subsections dealing with appeals to the Board in relation to a request to amend an Official Plan (sections 22(4) – (7.0.2)).
[23] Section 22(4) states that anyone requesting an amendment to the Official Plain must provide the “prescribed information and material to the council”.
[24] Subsection (5) provides that a council “may require that a person or public body that requests an amendment to its official plan provide any other information or material that the council…considers it may need”. Moreover, subsection (6) states that until such information or material is received the council “may refuse to accept or further consider the request for an amendment to its official plan” and “the time periods referred to paragraphs 1 and 2 of subsection (7.0.2) do not begin.”
[25] Subsection (6.1) requires the council to advise the applicant within 30 days whether the required information under ss. (4) and (5) has been provided. Subsection (6.2) states that if council advises an applicant that the required information has not been provided then that applicant may make a motion to the Board for directions to determine “(a) whether the information and material have in fact been provided, or (b) whether a requirement made under subsection (5) is reasonable”.
[26] Subsection (6.4) provides that within 15 days after the council gives notice that it has all the required information or within 15 days of the Board having decided that all the necessary information has been provided, then notice is to be given to the prescribed persons and public bodies of the request for the amendment and the information in support of the request is to be provided to the public.
[27] Subsection (6.5) states that any determination of the Board under subsection (6.2) is not subject to appeal or review. In this case the Board did review the Original Decision. It did so because it found that the aspect of that decision it was being asked to review was not a “determination” under s. (6.2). Those determinations were limited to whether the information and material had been provided and whether a council’s requirement for further information was reasonable. Nowhere does s. (6.2) refer to the power of the Board to determine when an application is complete such that an appeal right is triggered. The Town is not challenging this aspect of the Review Decision.
[28] The focus of the Town’s submission is on the wording of s. (6), which gives a council the right to refuse to consider a request for an amendment until its request for further material is received and provides that until such time as that further material is received the time periods referred to in s. (7.02) do not begin to run. According to the Town, this means that until it receives the requested material or the Board has determined that the request for the material was unreasonable, the time periods for an appeal are not triggered.
[29] To support its argument the Town makes reference to one of the purposes of the Act as set out at s.1.1. Those purposes include the following: “(d) to provide for planning processes that are fair by making them open, accessible, timely and efficient”; and “(f) to recognize the decision-making authority and accountability of municipal councils in planning”. As outlined above, the Town argues that the effect of the Review Decision could have been to deny the Town the right to consider the application, thereby undermining the Act’s objective of recognizing the right of a municipality to make decisions in an open and accessible manner.
[30] The Town also relies on the wording of subsection (6.4), which provides that once the Board has made an “affirmative decision under subsection (6.2)” notice is to be given of the request for the amendment to all of the appropriate public bodies and persons; the information provided in support of the application is to be made available to the public.
[31] In the Review Decision the Board considered and rejected these arguments. With regard to the argument about the other sections of the Act, the Board found as follows:
We recognize that the Town, in its response, points to a number of provisions in the Planning Act which establish that an appeal right for a non-decision does not crystallize until the required information and material are provided. These provisions, however, do not authorize the Board to find that an application is complete on any day other than the date upon which it is received. In fact, these other sections of the legislation support the statutory interpretation the ClubLink Request urges upon us, and that is that the point in time at which an appeal right crystallizes is not adjusted after a finding is made by the Board that all prescribed information and material supporting an application have been received.
[32] In my view, there is nothing unreasonable about the Board’s analysis in the Review Decision. In ss. 22(7) and (7.02) the date that triggers the period for filing an appeal is the date that the applications are received. In this case it is clear that the Applications were received on November 10, 2016. While subsection (6) suspends that time period until further material is received by the Town pursuant to a request under subsection (5), in this case no such further material was received and thus the suspension provided for in subsection (5) does not arise. Nowhere does the Act contain a provision that time periods in paragraphs 1 and 2 of subsection (7.02) are suspended until such time as the Board has made a determination under subsection (6.2). As the Board has pointed out, the focus of the Act for the purposes of triggering the time period for appeal to the Board is on when the Town receives all of the information it is entitled to receive. In this case that happened on November 10, 2016. Thus, as Board found in its Review Decision, its interpretation is consistent with the plain wording of the Act.
[33] I also do not accept the Town’s submission that the Board’s interpretation in the Review Decision is inconsistent with the purposes of the Act. First, when it comes to the issue of recognizing the decision-making authority of a municipal council, it is important to note that the council is not required to refuse to consider an application until all its requests for further information are satisfied. Second, there is the danger that if all time periods were deferred by the Town making unreasonable requests for further information, this would defeat the other purposes of the Act, namely “timely and efficient” planning processes and “accountability” of municipal councils in planning.
[34] For these reasons I find that the first part of the test for leave to appeal has not been met.
Are the Issues of Sufficient Importance to Warrant The Divisional Court’s Attention?
[35] In the event that I am wrong on my finding on the first part of the test, I will also briefly state my reasons for finding that the second part of the test for leave to appeal has not been met.
[36] After the Board issued its Original Decision the Town accepted and processed the Applications. They received a report from Town staff and heard submissions from the public. They made a decision on the official plan and zoning by-law requests on October 5, 2017 and ClubLink filed appeals from those decisions on October 10, 2017.
[37] Because of a provision in the Act the decision on the subdivision application was adjourned to November 6, 2017. On November 1, 2017 ClubLink appealed to the Board on the basis that the Town had failed to make a decision on its subdivision application. Notwithstanding this, the Town considered and refused the subdivision application on November 6, 2017. ClubLink also appealed that refusal.
[38] The only outstanding dispute between ClubLink and the Town that arises from this motion is whether ClubLink’s appeal of its subdivision application is based on the Town’s failure to make a decision within 180 days after the application was received, or whether the appeal is based on the Town’s decision to subsequently refuse that application.
[39] Section 2.1 of the Act requires a Board on an appeal to “have regard to” a decision of a municipal council. However, this court has held that this only requires minimal deference by the Board to the decision of a municipal council. On an appeal, the Board applies its own expertise and exercises its independent judgment on the planning merits of an application, regardless of the municipality’s decision (Ottawa (City) v. Minto Communities Inc., 2009 65802 (ON SCDC)). Thus, practically speaking, the outstanding issue between the parties is of little significance.
[40] The Town argues that even if the issue as between the parties is virtually moot, the Review Decision should be addressed by the Divisional Court. It submits that if the Review Decision is allowed to stand, it will remove a municipality’s right to process a planning application where the Board determines that the municipality made an unreasonable request for further information or material.
[41] As already noted, the legislative scheme does not does deprive a municipality from processing an application in the face of an outstanding request for further information. It is free to do so. Further, if its request is a reasonable one, the municipality’s decision-making will not be impacted in any way. Finally, simply because an applicant has a right to appeal to the Board, it does not mean that that right will be exercised immediately. Municipalities may still have time to process the necessary applications. The fact that this issue has never been a live one before speaks either to the fact that it is rare that the Board finds that municipalities have imposed unreasonable requirements or to the fact that the vast majority of planning applications are not appealed to the Board immediately upon the expiry of the time periods for municipal decisions under the Act.
[42] This causes me to find that the issue is one that is unlikely to arise in the future and, if it does, it should be addressed in a context where there is a dispute of real significance between the parties.
Conclusion
[43] For these reasons the motion for leave to appeal is denied. As agreed by the parties, ClubLink is entitled to its costs of the motion, fixed in the amount of $16,000.00, all inclusive.
H. Sachs J.
Released: January 25, 2018
CITATION: The Corporation of the Town of Oakville v. ClubLink Corporation ULC, ClubLink Holdings Limited, 2018 ONSC 589
DIVISIONAL COURT FILE NO.: 17-0610-ML
DATE: 20180125
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
The Corporation of the Town of Oakville
Moving Party
– and –
ClubLink Corporation ULC, ClubLink Holdings Limited
Responding Parties
REASONS FOR JUDGMENT
H. Sachs J.
Released: January 25, 2018