Masters v. Claremont Development Corporation, 2021 ONSC 3311

Masters v. Claremont Development Corporation, 2021 ONSC 3311

CITATION: Masters v. Claremont Development Corporation, 2021 ONSC 3311

DIVISIONAL COURT FILE NO.: 471/20

LPAT Case No:PL171210

DATE: 20210505

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

(Swinton, Lederer and, Favreau JJ.)

BETWEEN:

DAVID MASTERS

Appellant

– and –

CLAREMONT DEVELOPMENT CORPORATION

Respondent

Eric Gillespie and Ian Flett, for the Appellant

Mark Flowers and Alex Lusty, for the Respondent

Chris Lee and Tamara Watson, for the City of Pickering

Stan Floras, for the Local Planning Appeal Tribunal

HEARD: at Toronto (by videoconference): April 12, 2021

Lederer, J.

1This is an appeal from a Review Decision of the Local Planning Appeal Tribunal.

Background

2In 1990, and presumably for some time thereafter, Toko Investments Ltd. owned the lands that are the subject of the applications at the centre of this appeal. During February of that year, Toko Investments applied to the City of Pickering to have a portion of the lands rezoned and subdivided. In June of the same year, Toko Investments applied to rezone the balance of its lands from agricultural to residential uses. It seems that during the years that followed, nothing much happened. At some point the land was sold to, or taken over by, the Respondent Claremont Development Corporation. In 2012 Claremont submitted a revised application to amend the zoning by-law and a draft plan of subdivision proposing that all of the lands be developed together. In 2018 further applications, referred to as “…an update and consolidation of the original 1990 applications”,¹ were made. These applications were brought forward on the premise that they would be reviewed under planning policies extant at the time the applications were first made:

These applications will be considered for approval under the planning policies that applied at the time of the original applications (1990/1991) while having regard to the contemporary applicable standards and matters of good planning and the public interest.²

3This was 28 years after applications had first been made. In the interim an entirely new official plan had been adopted by the City of Pickering and, in 1998, approved by the Ontario Municipal Board (the predecessor of the Local Planning Appeal Tribunal). Significantly, it established new boundaries for the Hamlet of Claremont. It removed some of the subject lands and designated them as “Agricultural”.³ Since 1991, two new regional official plans have been approved.⁴

4In 2017, as a result of the failure of the City of Pickering to decide the applications, Claremont appealed to the Local Planning Appeal Tribunal. There were preliminary issues to be determined. Among them was the question of which planning policies were to apply. There was a false start. The issue as to identification of the appropriate policies had been raised by the City of Pickering in response to a motion brought by Claremont seeking orders consolidating the applications such that all the lands involved would be considered and dealt with. The Tribunal determined that it was inappropriate to have an issue of this importance dealt with as raised in response. It should have been brought forward by Claremont in its motion:

To omit this important issue from the motion and have it raised for direction by a Responding Party is not appropriate, fair or reasonable in this instance, especially given the direction of the Decision of the first [Prehearing Conference], and the Tribunal is not convinced that this approach affords it the best chance for a proper airing and sound determination of the question. Further the direction requested by the City in its Response involves the determination of a substantial issue and is not simply a “clarification” as suggested at the hearing.⁵

5Claremont requested that the Tribunal review this decision.⁶ The Associate Chair of the Tribunal determined that the request for a review was warranted and directed that another member of the Local Planning Appeal Tribunal reconsider the motion. The further decision (the “Review Decision”) was released on August 27, 2020. It is that decision which is the subject of this appeal.

The Clergy Principle Explained: Part 1

6This appeal requires an appreciation of the difference between a legal principle that must be applied in a prescribed manner, and a policy directive, the application of which is more flexible and amenable to different treatment by those responsible for its promulgation and implementation, depending on the circumstances being addressed.

7In its Review Decision the Local Planning Appeal Tribunal made the following determination:

The Tribunal finds that the Clergy principle applies in this case and that the applicable policy regime is the one described in paragraphs 57 to 66 of the joint affidavit of Messrs. Given and Cory.⁷

8The Clergy principle originates in a case bearing the same name.⁸ The lands in question were located close to the Lester B. Pearson International Airport (Toronto’s main airport). Airplane noise was a concern. The applications for approval of lands for residential development had been made in July 1989. They were revised during 1994 to reflect ongoing work directed to an amendment to the applicable official plan and, again, in 1996, at the request of the City of Mississauga, with respect to a church site. The official plan amendment (OPA 238) was approved by the Ontario Municipal Board on September 13, 1995 “at the end of a very open and public process, culminating in its testing by parties at a hearing before the [Ontario Municipal] Board.”⁹ Despite its approval after the making of the initial applications, the proponent (Clergy Properties) agreed to conform to the policies of OPA 238.¹⁰ Thereafter, on May 1, 1996 a new guideline, “Land Use in the Vicinity of Airports, 7th Edition” was published. Particularly in relation to residential development, it was more restrictive than its predecessor, produced in 1989. The issue in the Clergy case was which of the two guidelines should govern, the one from 1989 which was in place when the original applications were made and remained in place after the approval of OPA 238 or the new guideline brought forward in 1996. The Ontario Municipal Board found that the prevailing policy should be the one in place when the applications were made:

The Board, in determining the policy framework under which an application should be examined, has consistently stated that an application must be tested against the policy documents in place at the date of the application. … In the Board's view, to now depart from this consistent adjudication of matters, would undermine the planning process and bring the integrity of the planning and adjudication process into disrepute.¹¹

9The decision makes plain this was not a new idea. It referred to and relied on cases that preceded it¹².

10The underlying concern was for procedural fairness. How could it be fair to require that an application adhere to an understood policy framework and then, in the course of examining the proposal, change the policy foundation thereby making it more difficult, perhaps even impossible, for the application to succeed?¹³

The Present Appeal

11The so-called Clergy principle is well-established in the processing, supervision and implementation of land use planning in Ontario. Nonetheless, the Appellant applied for and was granted leave to appeal the Review Decision.¹⁴ The Local Planning Appeal Tribunal Act, s. 37(1) states:

Subject to any general or special Act, an appeal lies from the Tribunal to the Divisional Court, with leave of the Divisional Court, on a question of law, except in respect of matters arising under Part IV.

12Thus, for there to be an appeal there has to be a question of law. On the motion for leave the appellant raised seven grounds of appeal. For six of them, leave was denied. For one, leave was granted. The ground of appeal as stated by the judge who granted leave was said to be:

…that the Review Decision incorrectly applied the Clergy principle which permits in most cases, that as a matter of natural justice, new planning policies ought not to be binding on land use planning applications made under earlier policy regimes.¹⁵

[Emphasis added]

13This statement recognizes the Clergy principle and that “in most cases” it will apply “as a matter of natural justice.” On its own, this description does not point to the alleged problem in this case. The judge went on to make clear a concern that the Review Decision was insufficient in that it “…does not state any reasons for this ruling on the Clergy principle in this case”.¹⁶

14The consequences of a failure to deliver reasons will depend on the nature of the case:

In many cases… neither the duty of procedural fairness nor the statutory scheme will require that formal reasons be given at all.¹⁷

15On the other hand:

Where the duty of procedural fairness or the legislative scheme mandates that reasons be given to the affected party but none have been given, this failure will generally require the decision to be set aside and the matter remitted to the decision maker.¹⁸

16In this case, if there is an absence of reasons, the decision will be set aside not because it is an error of law but because it is procedurally unfair. In such a circumstance there is no need to determine what standard of review should apply. A proceeding is either “fair” or “unfair. The question is not whether the process was “reasonable” or “correct” but rather, was it “fair” in the context?

17The judge went on to express another concern: “Further, the decision on the applicability of the Clergy principle relates to natural justice and, accordingly, if incorrect, is an error in law.”¹⁹

18What did the Appellant take from the decision of the judge granting leave?

19The Notice of Appeal which followed the Order granting leave asks that judgment be granted determining that the Clergy principle “does not apply in this matter”.²⁰ The supposition behind this request is that the Clergy principle is a legal principle and that, as such, it has been improperly applied and that its application, in this case, was an error of law. In furtherance of this understanding the Factum filed on behalf of the Appellant notes:

Moreover, as the first case since the original Clergy decision to come before this Honorable Court, now is the ideal opportunity for the Court to provide much needed guidance on a principle that is widely applied in land use planning decisions across Ontario, but as time has passed has become increasingly debatable.²¹

20The Clergy principle is not a legal principle. It is a policy choice made and applied by the Ontario Municipal Board (now available to the Local Planning Appeal Tribunal). On this understanding, the application of the Clergy principle is not subject to review by this Court. Contrary to a statement made in the Factum of the Appellant the principle did not come “…into existence as a result of a Divisional Court decision on an OMB appeal” nor was it “…established by the Divisional Court on a question of law appeal”.²² To the contrary when the Clergy case was heard by the Divisional Court, the appeal was dismissed. The policy concerns raised by the promulgation of the new guidelines fell entirely within the jurisdiction of the Ontario Municipal Board:

In carrying out its mandated duties, the OMB has exclusive jurisdiction to determine the scope of the issues before it, the procedures to be followed, and the appropriate policy choices to be made and applied in order to arrive at sound planning decisions.

The questions upon which leave was granted, although legal in nature, are very clearly related to, and cannot be extricated from, the OMB's exclusive responsibility to exercise its acknowledged expertise in making complex, polycentric factual and policy decisions.²³

In our view, that decision was a determination as to the relevancy of evidence sought to be admitted by the appellant and therefore within the jurisdiction of the Board.²⁴

21The submissions made on behalf of the Appellant attempt to circumvent this concern by pointing out that the original enunciation of the principle was founded on the need to comply with the requirements of natural justice and fairness:

The board believes it would be contrary to natural justice to allow the rules to change after the original application is submitted.²⁵

It has done so [that is applied the policies in place at the time the application was made] in order to lend some certainty to the land use planning process, and to ensure that fairness to all parties prevail….²⁶

22This concern reflects on the fairness of the procedure adopted and not on the substance of the policy. In asking for a judgment that the Clergy principle should not be applied to this situation the Appellant is asking the Court to engage in a consideration of the appropriateness of the policy, a consideration which was within the exclusive jurisdiction of the Ontario Municipal Board and now is the responsibility of the Local Planning Appeal Tribunal. In submitting, as counsel for the Appellant did, that the appropriateness of the policy should be reconsidered by the Court, the Appellant is treating an issue of substance as if it was a process concern. In saying that it is “unfair” to apply the official plan policies that were in place nearly 30 years ago, the Appellant is conflating one concern (the substance of the policy) with the other (the process utilized in applying the policy). As it is, no issue was raised as to the process leading to the decision. There was no suggestion that those involved were not properly notified, provided with the appropriate materials or were not given the opportunity to be heard. The only question was the sufficiency of the reasons.

23I will have more to say about, first, the understanding that the Clergy principle is not a legal principle but rather a policy approach of the approval authority and, second, the sufficiency of the reasons. Before doing so I turn to a consideration of the standard of review and how that issue applies to this case.

Standard of Review

24This is a statutory appeal. As such it received specific treatment in Canada (Minister of Citizenship and Immigration) v. Vavilov.²⁷ Where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision.²⁸ This calls for the application of the principles found in Housen v. Nikolaisen.²⁹ Since, in these circumstances, an appeal for which leave is granted pursuant to the Local Planning Appeal Tribunal Act must raise “a question of law”, the standard of review to be applied to a properly constituted appeal would be correctness.³⁰

25The difficulty is that, properly understood, no question of law is raised in this appeal. Referring to the substance of the Clergy principle as “unfair” because it requires the application of policies from 30 years ago does not raise an issue of law.

26The issues, as expressed, concern natural justice and procedural fairness. The Supreme Court of Canada has observed that “evaluating whether procedural fairness, or the duty of fairness, has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation.”³¹ In this case no objection to the process, other than the alleged absence of reasons, was referred to. The Supreme Court has distinguished between assessing matters of procedural fairness and reviewing final decisions by explaining that “the content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations.”³² In this case, the submissions made on behalf of the Appellant confuse concerns about the end product with procedural fairness. At best, any concern for the application of the Clergy principle to the circumstances of this case would be a question of mixed fact and law which cannot be the subject of an appeal from the Local Planning Appeal Tribunal. The absence of reasons, if sustained, would require the decision of the Local Planning Appeal Tribunal to be set aside due to the failure of procedural fairness.

The Clergy Principle Explained: Part 2

27As already noted, the Clergy principle, as established by the Clergy case, was appealed to the Divisional Court. The Court declined to deal with the substance of the issue (the propriety of the principle) because it fell within the exclusive jurisdiction of the Ontario Municipal Board. To put it squarely the appeal did not raise an issue of law that could be extricated from that jurisdiction; thus, there was nothing for the Court to consider. Leave to appeal to the Court of Appeal was refused.³³

28Over time the Ontario Municipal Board considered and amended the policy implications of the application of the Clergy principle. In Dumart v. Woolwich (Township)³⁴ the Ontario Municipal Board cited another related practice which is that any policies that were passed after the application date, but before a final decision is made on the application, could be considered by the Board or other decision-making authority in making the final decision. The language used in Dumart dates back to a previous decision, Boothman v. Newcastle (Town),³⁵ in which the Board agreed that a new policy passed after the application is filed would be admissible and relevant, but not “determinative.”³⁶

29The proper understanding of the status of the Clergy principle crystalized in James Dick Construction Ltd. v. Caledon (Town).³⁷ The company sought the approvals necessary to construct and operate a new aggregate quarry. It had made the necessary applications in March, 1998, a time when an Official Plan passed initially in 1979, with policies governing extractive land uses that had been approved in 1981, remained in place.³⁸ The provincial approach to aggregate extraction had changed “…by turning from production-oriented policy to a more balanced approach which recognize[d] more local involvement”.³⁹ By the mid-1990s both the Town and Region of Peel recognized the need to improve the way their planning documents managed the resource. The Region’s new policies were the subject of a successful negotiation involving all the interested parties. They were approved by the Ontario Municipal Board in February, 1998.⁴⁰ The Region’s approach involved a “stepping down” of authority for aggregate policy. The detailed overall process of aggregate planning and management was left for the local official plan and foresaw its amendment.⁴¹ The Town undertook the necessary work. The forthcoming official plan amendment was the subject of a lengthy period of consultation and preparation. It was approved in 2003 “following the remarkable consent of all parties including those who had objected to earlier versions”.⁴² James Dick Construction Ltd. took part in the discussions but did not see itself as having resiled from its reliance on the earlier policies as the foundation for its applications. Relying on the Clergy principle, it argued that the new policies should not apply to those applications. The Ontario Municipal Board did not agree. It acknowledged the value of the principle but found that this was one case where the principle should be set aside:

The question in this case is: do the circumstances of this application and the corresponding policy process warrant the extraordinary practice of setting aside the Clergy principle? The Board agrees with the Town and its supporters that this case is one of the rare instances where the prejudice to the applicant, James Dick Construction Ltd., is balanced by the value of applying the more stringent policies of OPA 161.⁴³

[Emphasis added]

30In explaining this determination, it made the following observations:

However, it must also be acknowledged that the Clergy principle is not a law or an inviolate rule. It is a practice meant to promote fairness in the planning process.⁴⁴

…the [Clergy]case stands for the proposition that the Board has the authority to formulate a procedural policy such as the Clergy principle and that it is uniquely equipped to judge those circumstances in which it is appropriate to apply it and, by corollary, when it is appropriate to set it aside.⁴⁵

31What these statements confirm is the understanding that the Clergy principle is not a legal principle to be interpreted or applied by the Court. It is a procedural policy developed by the Ontario Municipal Board and the Local Planning Appeal Tribunal which, as matters stand today, is for the latter to apply. In the absence of any procedural concerns there is nothing for the Court to consider, at least insofar as the application of the policy is concerned.

32Finally, with respect to understanding the impact of the Clergy principle, it is important to recognize that amendments to the Planning Act ⁴⁶ make clear that the policy framework to be applied does not simply go back to whatever policies were in place 30 years ago. The Planning Act authorizes the province to issue “policy statements” dealing with matters of “provincial interest” related to “municipal planning”.⁴⁷ In 2017 the Act was amended to make clear that, with respect to provincial policy statements, the Clergy principle did not apply. What is now s. 3(5) of the Planning Act provides:

(5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Tribunal, in respect of the exercise of any authority that affects a planning matter,

(a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision; and

(b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.

[Emphasis added]

33In making planning decisions it is the provincial policy statements in place on the day the decision is made that are to be accounted for. The general significance of this is the recognition that the application of the Clergy principle has, through legislation, been limited. It can apply only to municipal planning documents such as official plans. Further, it demonstrates that the application of the Clergy principle has received relatively recent consideration by the legislature. This means that the applications made by Claremont Development Corporation will have to conform to and not conflict with whatever provincial policy statements are in effect on whatever date the decisions with respect to these applications are made. There may be substantive provisions or there may be transitional provisions that apply. Insofar as municipal planning documents are concerned the Clergy principle continues to be available to be applied by the Local Planning Appeal Tribunal, as a policy within its exclusive jurisdiction:

11 (1) The Tribunal has exclusive jurisdiction in all cases and in respect of all matters in which jurisdiction is conferred on it by this Act or by any other general or special Act.

(2) The Tribunal has authority to hear and determine all questions of law or of fact with respect to all matters within its jurisdiction, unless limited by this Act or any other general or special Act.⁴⁸

34In the context of this case, with respect to any concern for the Clergy principle and its application, the Review Decision does not raise an issue of law which could be the subject of an appeal.

The Absence of Reasons

35This leaves the question of the submission that there was, in the Review Decision, an absence of any reasons explaining the determination that the Clergy principle should be applied, requiring that the applications now being carried forward by Claremont be measured against the official plan policies in place at the time the initial applications were made. I begin by pointing out that the Amended Notice of Appeal makes no reference to any order being sought that the Review Decision should be set aside for the absence of reasons. The Notice of Motion seeking leave to appeal did propose, as the second of the seven grounds it raises, that the “Tribunal erred in law by failing to provide sufficient reasons in its Decision.”⁴⁹ The Decision granting leave, denied leave, on this ground. The ground for which leave was granted reflected only on the application of the Clergy principle in the circumstances of the particular case. In the decision of the judge granting leave to appeal, the suggestion that there was no reason given for the decision to apply the principle was referred to, but as one rationale for granting leave as to the propriety of the application of the principle, not as an independent ground of appeal. The judge noted:

…There is insufficient evidence before me to make any findings as to the cause of delay in processing the subdivision application. There is at least one conflicting decision about the applicability of the Clergy principle. The Review Decision provides no reason for its decision that the Clergy applies in this case. Further, for that and all the circumstances discussed above, Mr. Masters has satisfied me that the applicability of the Clergy principle as ordered in the Review Decision is open to very serious debate.

Accordingly, with respect to the proposed ground of appeal number 6, the correctness criterium is satisfied.⁵⁰

[Emphasis by underlining added]

36In other words, the judge deciding the question of leave to appeal relied on his view of the Review Decision and what he saw as the absence of any reason justifying the application of the Clergy principle as part of the rationale for granting leave to appeal on the issue of the application of the principle. The “correctness criterium” refers to the requirement that there be “good reason to doubt the correctness of the tribunal decision or the correctness of the tribunal decision is open to serious debate.”⁵¹ For the judge, what he saw as an absence of reasons, confirmed that there was reason to doubt the correctness of the decision to apply the Clergy principle and tie Claremont’s applications to the official plan policies in place in 1990, the time the first applications were made. What has already been said in this judgment demonstrates that the correctness of the decision to apply the Clergy principle did not raise a question of law, but rather is a matter of policy set by the Local Planning Appeal Tribunal and falls within its exclusive jurisdiction. There is no foundation to the ground of appeal for which leave was granted being that the Tribunal erred in law by applying the Clergy principle.

37Ultimately the question of whether or not to apply the Clergy principle to a given circumstance is a discretionary determination that rests with the Local Planning Appeal Tribunal:

In short the Board is authorized to conclude when it is fair to apply the Clergy principle and should undoubtedly do so in the vast majority of cases. And equally, it has the authority to conclude when the circumstances of a case warrant the application of another principle. For instance, it may choose in its

procedural discretion to consider and apply more recent policies and more modern standards that are consistent with a compelling public interest.⁵²

[Emphasis added]

38This being so, there should be no need to consider whether or not there are reasons justifying the decision to apply the principle and, if there are, whether they are sufficient. The issue which the alleged absence of reasons was found to support in the granting of leave, has been determined. Leave to appeal any deficiency in the reasons, in and of itself, was denied. Nonetheless, the supposed absence of appropriate reasons was the subject of submissions made to this Court by both of the parties that had appeared before the Tribunal (Claremont and David Masters).

39Reasons stand at the centre of any decision subject to appeal or review:

The starting point for our analysis is therefore that where reasons are required, they are the primary mechanism by which administrative decision makers show that their decisions are reasonable -- both to the affected parties and to the reviewing courts. It follows that the provision of reasons for an administrative decision may have implications for its legitimacy, including in terms both of whether it is procedurally fair and of whether it is substantively reasonable.⁵³

40However, it is understood that reasons from administrative bodies such as the Local Planning Appeal Tribunal are not to be assessed against a standard of perfection:

A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do "not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred" is not on its own a basis to set the decision aside.⁵⁴

41What is expected of a judge should not necessarily be required of an administrative decision maker:

Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge -- nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons.⁵⁵

42In conducting an appeal or review of a decision (the reasons) rendered by an administrative decision maker deference should be accorded to its specialized knowledge and expertise:

In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons.⁵⁶

The reviewing court must also read the decision maker's reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker's work, and past decisions of the relevant administrative body.⁵⁷

43The Appellant, in his submission that there was an absence of reasons justifying the continued reliance on the Clergy principle refers to a single paragraph of the Review Decision. As the Appellant sees it, the paragraph does nothing other than find that the principle applies and refers to the joint affidavit of two land use planners as “describing” the “applicable policy regime” (see paragraph 7 above where the paragraph is quoted). The Appellant submitted that this is all there is that would explain the rationale for applying the Clergy principle to this case. In referring to the paragraph the Factum of the Appellant says:

The Tribunal provided no analysis, no reference to any cases, no application of the law to the facts, and simply declared the applicability of Clergy.⁵⁸

And

…it is no exaggeration to say the LPAT on review provided nothing in support of its determination the Clergy principle applied… ⁵⁹

44This is not an accurate depiction of the decision made or the rationale provided. The affidavit of the two land use planners does more than just describe the policy regime. It makes plain that this is not strictly a matter of going back to the policies extant in 1990. It demonstrates that there are more recent provincial polices which apply to the applications of concern, describes the transitional provisions applicable and provides expert opinion as to the application of the Clergy principle in relation to the municipal planning policy documents. The Review Decision contains more than the single paragraph and the reference to the joint affidavit of the two planners. It notes that the issue of the policies to be applied was raised, in the response of the City of Pickering to the application made by Claremont, concerning the failure of the municipality to decide the applications. It notes that it was the City of Pickering that requested guidance as to “what extent the Clergy principle applies to the applications and if the Clergy principle does apply, [whether] the applicable policy regime is the one described at paragraphs 57-66 of the joint affidavit of Messrs. Given and Cory.”⁶⁰ In its Review Decision the Local Planning Appeal Tribunal noted that the Chief Planner of the City did not “proffer expert opinion for or against the opinion evidence of the two planners but only requests direction from the Tribunal prior to circulating the applications to the commenting agencies with respect to which set of planning policies are applicable to these applications.”⁶¹ The municipality offered no concerns to the application of the Clergy principle and provided no reason suggesting this was one of those “rare instances” which warranted “the extraordinary practice of setting aside the Clergy principle”.⁶² The Review Decision reviews the evidence of a planner who opined that the Clergy principle should not be applied:

With or without accepting that Mr. Doyle may be impartial, the Tribunal does not find this evidence to be of much assistance. Mr. Doyle’s evidence focuses on the 1997 City of Pickering Official Plan and the Oak Ridges Moraine Amendments. It is Mr. Doyle’s opinion that the enactment of these two documents and the obligation of the Applicant to engage in the public process and due to the lack of their insertion into this process, they have potentially lost previous development rights. Mr. Doyle does not offer that there are any transitional rights for any applications preceding the two documents discussed above and appears to take the position that no rights at all, certainly in this case and maybe all cases, can be considered. The Tribunal finds this an unreasonable and untenable position, which it does not accept.⁶³

45In considering this evidence and that of the first two planning consultants, the Local Planning Appeal Tribunal did not just “outline the evidence and argument and then state the tribunal’s conclusion”.⁶⁴ It accounted for the evidence, rejected that of one witness, explained the foundation for not accepting it (the loss of development rights was untenable and provision for transition from one regime to the other absent) and accepted the evidence of the two “joint” witnesses as having described the applicable policy regime. In coming to this conclusion, the Local Planning Appeal Tribunal noted the absence of prejudice to the public in the determination to proceed in this way:

This evidence shows that the public has been made aware of the current [Claremont Development Corporation] proposal and that anyone who has made comments about the scope of the draft plan of subdivision or specific elements of the plan will have an opportunity to comment and make submissions at the future full hearing on the merits of the applications.⁶⁵

46This understanding of the Reasons is consistent with that of the judge who decided the motion for leave to appeal. He noted:

Decision makers are entitled to prefer the opinions of certain experts as opposed to the opinion of other expert witnesses. In his decision, Vice Chair Bishop [the Review Decision] stated his reasons for preferring the Givens [sic] and Cory joint expert opinion to that of Victor Doyle.

Also, with the exception of paragraph 32 of the Review Decision, I am satisfied that the decision enables meaningful appellate review and sufficiently and meaningfully addresses the central issues and concerns raised by the parties. ⁶⁶

47As already described, paragraph 32 [see para. 7 above] reflects, not on the sufficiency of reasons, leave for which was denied, but on the applicability of the Clergy principle. That issue does not raise a question of law and is not susceptible to appeal. Insofar as the supposed absence of such reasons is concerned, it does not matter. In the circumstances reasons were present and are sufficient to allow for meaningful appellate review.

Conclusion

48For the reasons referred to herein, the appeal is dismissed.

Costs

49The City of Pickering and the Local Planning Appeal Tribunal are not seeking costs of the appeal and no order for costs is being sought against either of them.

50Costs as between the Appellant and the Respondent remain unresolved. Both have submitted Costs Outlines but at the conclusion of the hearing counsel advised that there may be relevant offers to settle We encourage both parties to attempt to resolve this issue without the intervention of the Court. However, if they are unable to do so the Court will accept written submissions on the following terms:

(a) by the Respondent (Claremont): to be filed on Caselines, no later than 7 days following the release of this judgment, such submissions to be no longer than 3 pages double spaced.

(b) by the Appellant (Masters): to be filed on Caselines, no later than 14 days following the release of this judgment, such submissions to be no longer than 3 pages double spaced.

51We leave to the motions judge the task of determining, the costs of the motion for leave to appeal.

Lederer, J.

I agree _______________________________

Swinton, J.

I agree _______________________________

Favreau J.

Released: May 5, 2021

CITATION: Masters v. Claremont Development Corporation, 2021 ONSC 3311

DIVISIONAL COURT FILE NO.: 471/20

LPAT Case No:PL171210

DATE: 20210505

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

(Swinton, Lederer and, Favreau JJ.)

BETWEEN:

DAVID MASTERS

Appellant

– and –

CLAREMONT DEVELOPMENT CORPORATION

Respondent

REASONS FOR JUDGMENT

Lederer, J.

Released: May 5, 2021

The Tribunal may review, rescind or vary any decision or order made by it in accordance with the rules.

The position that the former plan should apply is based on the well established practice of the Municipal Board that the policy prevailing at the time of the application is the one that must be applied when the application is adjudicated. In several cases, the Board has indicated that it will not retroactively apply policies to an application made before the policies were finally approved.

And see: Beer v. Halton Land Division Committee (1991) 25 OMBR 505 at p. 506 where the following is said:

The Board concurs with T. F. Baines, Q.C. in his recent board decision in which he held that the applicable official plan policies are those in force, approved by the Minister or appropriate authority, as of the date of the original application.

In the Clergy case the Ontario Municipal Board also refers to: Regional Municipality of Halton v. Halton Land Division Committee (1991) 26 O.M.B.R. 113 and to Hudson v. Leeds and Grenville Land Division Committee (1988) 21 O.M.B.R. 414 at 418.

This is an extension of what could be called the "Kalmoni" principlewhich says that an applicant cannot be put to a standard imposed after the date of the application which would have the effect of defeating the application. This principle protects proponents from policy changes that are meant simply to frustrate an application retroactively.

See also Halton Hills (Town) Official Plan Amendment No. 67, Re, [1997] O.M.B.D. No. 70 (O.M.B.)

Beer v. Halton Land Division Committee (1991), supra (fn. 12) at p. 506

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973 191 (SCC), [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

Footnotes

1. 1Factum of the Appellant at para. 12 quoting from Revised Zoning By-law Amendment and Draft Plan of Subdivision: Planning Opinion Report – Claremont Developments Inc. (May 2018: Malone Given Parsons Ltd.) at p. 3 (Caselines A807)
2. 2Revised Zoning By-law Amendment and Draft Plan of Subdivision: Planning Opinion Report – Claremont Developments Inc. (May 2018: Malone Given Parsons Ltd.) at p. ix (Caselines A799)
3. 3Affidavit of Victor Doyle sworn April 29, 2019 at Exhibit A, para. 7 (Caselines A1131)
4. 4Masters v. Claremont Development Corporation 2020 ONSC 7463 at para. 19 (This is the decision of Justice Salmers granting leave to appeal to this court.)
5. 5Decision of the Local Planning Appeal Tribunal (Thomas Hodgins) dated August 23, 2019 concerning a motion brought by Claremont Development Corporation at para. 33 (Caselines A706)
6. 6The Local Planning Appeal Tribunal Act, 2017, S.O. 2017, c. 23, Sched. 1, s 35 states:
7. 7Decision of the Local Planning Appeal Tribunal (G.C.P. Bishop) dated August 27, 2020 (Review Decision) at para. 32
8. 8Clergy Properties Ltd. v. Mississauga (City)1996 CarswellOnt 5704, [1996] O.M.B.D. No. 1840, 34 O.M.B.R. 277 (Ontario Municipal Board) upheld 1997 CarswellOnt 5385 (Div. Ct.) leave refused 1998 CarswellOnt 451 (Ont. C.A.)
9. 9Clergy Properties Ltd. v. Mississauga (City), ibid (Ontario Municipal Board) at para. 11
10. 10Ibid at para. 10
11. 11Ibid at para. 15
12. 12See for example: York (Regional Municipality) v. Richmond Hill, [1995] O.M.B.D. No. 1908 (QL) which states:
13. 13This concern was noted in Kalmoni Establishments Inc. v. Milton (Town), [1995] O.M.B.D. No. 1247 (OMB) referred to in James Dick Construction Ltd. v. Caledon (Town) 2003 CarswellOnt 6221 at para. 34 as follows:
14. 14Masters v. Claremont Development Corporation, supra (fn. 4).
15. 15Ibid at para. 12
16. 16Ibid at para. 13
17. 17Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 DLR (4th) 1, 59, Admin LR (6th) 1, [2019] SCJ No 65 (QL), 312 ACWS (3d) 460 at para. 136 referring to Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 43
18. 18Ibid (Vavilov) at para. 136 referring to Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine (Village), 2004 SCC 48, [2004] 2 SCR 650, at para. 35
19. 19Ibid at para. 14
20. 20AMENDED NOTICE OF APPEAL (Caselines A629)
21. 21Factum of the Appellant at para. 39 (Caselines A1558)
22. 22Ibid at para. 30 (Caselines A1556)
23. 23Clergy Properties Ltd. v. Mississauga (City), supra (fn. 8) (Div. Ct.) at para. 11 and 12 (per Hartt J.)
24. 24Ibid at para. 29 (per Salhany and Feldman JJ.)
25. 25Clergy Properties Ltd. v. Mississauga (City), supra (fn. 8) (Ontario Municipal Board) at para. 15 quoting
26. 26Clergy Properties Ltd. v. Mississauga (City), supra (fn. 8) (Ontario Municipal Board) at para. 15
27. 27Supra (fn. 17)
28. 28Ibid at para. 37
29. 292002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.)
30. 30Ibid at para. 8
31. 31Moreau-Berube c. Nouveau-Brunswick 2002 SCC 11, [2002] 1 S.C.R. 249, 2002, [2002] S.C.J. No. 9, CarswellNB 46, 111 A.C.W.S. (3d) 932 at para. 74
32. 32C.U.P.E. v. Ontario (Minister of Labour) 2003 SCC 29, [2003] 1 S.C.R. 539, [2003] S.C.J. No. 28, 122 A.C.W.S. (3d) 607, 2003 CarswellOnt 1803 at para 102
33. 33Supra (fn. 8)
34. 34(1997), 36 O.M.B.R. 165 (O.M.B.)
35. 35(1993), 29 O.M.B.R. 26 (OMB)
36. 36This reference to Dumart and Boothman is extracted from James Dick Construction Ltd. v. Caledon (Town), supra (fn. 13) at para. 3
37. 37Supra (fn. 13)
38. 38Ibid at para. 1
39. 39Ibid at para. 15
40. 40Ibid at para. 16
41. 41Ibid at para. 17
42. 42Ibid at para. 7
43. 43Ibid at para. 46
44. 44Ibid at para. 41
45. 45Ibid at para. 42
46. 46R.S.O. 1990, Ch. P. 13
47. 47Ibid s. 3(1)
48. 48Local Planning Appeal Tribunal Act, supra (fn. 6) at s. 11
49. 49Notice of Motion for Leave to Appeal (Caselines A30)
50. 50Masters v. Claremont Development Corporation, supra (fn. 4) at paras. 22 and 23
51. 51Ibid at para. 2
52. 52James Dick Construction Ltd. v. Caledon (Town), supra (fn. 13) at para. 44
53. 53Canada (Minister of Citizenship and Immigration) v. Vavilov, supra (fn. 17) at para. 81
54. 54Ibid at para. 91 referring to Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, [2011] SCJ No. 62 (QL), 208 ACWS (3d) 435, 317 Nfld & PEIR 340, 340 DLR (4th) 17 at para. 16:
55. 55Ibid at para. 92
56. 56Ibid at para. 93
57. 57Ibid at para. 94
58. 58Factum of the Appellant at para. 33(Caselines A1559)
59. 59Ibid at para. 34
60. 60Decision of the Local Planning Appeal Tribunal (G.C.P. Bishop) dated August 27, 2020 (Review Decision) at para. 23 (Caselines A658)
61. 61Ibid at para. 24
62. 62James Dick Construction Ltd. v. Caledon (Town), supra (fn. 13) at para. 46 as referenced at fn. 43 and quoted at para. 26 herein.
63. 63Decision of the Local Planning Appeal Tribunal (G.C.P. Bishop) dated August 27, 2020 (Review Decision) at para. 25 (Caselines A658)
64. 64Maritime Electric Co. v. I.B.E.W., Local 1432 2004 CarswellPEI 20, 2004 PESCTD 19, [2004] P.E.I.J. No. 17, 129 A.C.W.S. (3d) 525, 235 Nfld. & P.E.I.R. 337, 699 A.P.R. 337 at para. 16; City Furniture (Y.T.) Ltd. v. Yukon Liquor Corp., 2000 CarswellYukon 96, 2000 YTSC 517, 2000 YKSC 517, [2000] Y.J. No. 62, [2001] B.C.W.L.D. 336, 26 Admin. L.R. (3d) 286 at para. 34; Monarch Beauty Supply and British Columbia (Director of Employment Standards), Re 2000 CarswellBC 3854 at para. 33
65. 65Decision of the Local Planning Appeal Tribunal (G.C.P. Bishop) dated August 27, 2020 (Review Decision) at para. 30 (Caselines A659)
66. 66Masters v. Claremont Development Corporation, supra (fn. 4) at paras. 8 and 9