CITATION: John Bruce Robinson Construction Limited v. Hamilton (City), 2022 ONSC 911

DIVISIONAL COURT FILE NO.: DC-20-74-JR

DATE: 2022/02/16

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Lederer, Ryan Bell JJ

BETWEEN:

JOHN BRUCE ROBINSON CONSTRUCTION LIMITED

Applicant

– and –

CITY OF HAMILTON and MARSHALL REAL ESTATE HOLDINGS LTD.

Respondents

Nancy Smith, for the Applicant

Patricia D’Souza, for the Respondent, City of Hamilton

Brian Duxbury and Joshua Perell, for the Respondent Marshall Real Estate Holdings Ltd.

HEARD: at Toronto, by video conference, January 12, 2022

LEDERER, J.

Introduction

[1] This is an application for judicial review. The Applicant, John Bruce Robinson Construction Limited (“Robinson”) seeks to quash a zoning by-law enacted by the Respondent, the City of Hamilton. The second Respondent, Marshall Real Estate Holdings Ltd. (“Marshall”) is, at present, the owner of the lands affected by the zoning by-law Robinson seeks to set aside. The by-law in question, Zoning By-Law No. 15-286, was enacted by the council for the City of Hamilton on December 9, 2015. Among other things, it provided site specific zoning to the lands located at 2187 Regional Road 56, Binbrook, in the City. The by-law added, as a permitted use at that location, a “Motor Vehicle Service Station”. At the time the property was owned by Wills Motors Limited (“Wills Motors”). Two years later, on February 28, 2017, Wills Motors sold the property to Marshall. Marshall is seeking to redevelop the property into a motor vehicle service station, a motor/recreational vehicle storage facility, a gas bar, a retail convenience facility and a “drive thru” coffee shop. This application for judicial review was commenced on February 20, 2020, which is to say in excess of four years after the enactment of By-law No. 15- 286 and three years after the sale of the property to Marshall.

[2] Judicial review is a discretionary remedy. In this case, the passage of time- that is the delay in raising, through this application, any concern for the legality of, or the process followed in passing this by-law, raises the issue of whether the discretion of the court should be exercised to dismiss the application. The parties, each of them, made submissions on this issue at the hearing of the application. Thereafter, they were advised that the application would be dismissed on account of the delay and that reasons would follow. These are those reasons.

Delay

[3] I begin with the obvious observation that the passage of a by-law is a legislative act and that a foundational premise of our governmental structure is that legislation exists to guide and instruct us as to what is, and is not, permissible. In short, we rely on legislation in the decisions we make and the actions we take. We expect others will do the same. The uncertainty produced if the efficacy of legislation can be questioned more than four years after its enactment would be, at best, problematic. Having said this, it is always possible that a legislative body, in this case the municipal council, may act outside its authority or without offering the required protections (proper notice and process) to those who are affected by the change. In this situation, the legislation and the common law have built in the ability, albeit limited by time, to raise issues of concern. The Municipal Act, 2001[^1] provides that an application may be made to the Superior Court of Justice of Ontario to quash a by-law for illegality:

273 (1) Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality.

[4] The legislation makes plain that such an application cannot be used to look behind the by-law to examine, verify or evaluate the purpose or rationale for its enactment:

272 A by-law passed in good faith under any Act shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law.[^2]

And imposes a time limit within which such applications may be made:

273 (5) An application to quash a by-law in whole or in part, subject to section 415, shall be made within one year after the passing of the by-law.

[5] This application, coming as it does, more than four years after the passage of the by-law it seeks to quash, is well outside the stated limitation. As one might expect, the parties directly affected by By-law No. 15-286 have relied on it in the actions they have taken over the course of those years. Wills Motors sold the property. Marshall purchased it, and in furtherance of proceeding to develop the land for the uses it allows, undertook an environmental assessment and spent in excess of $800,000 in remediating the property including the removal of fuel tanks as well as piping (fuel lines).

[6] It has been recognized that, in certain circumstances (for example where there has been a denial of natural justice or to correct an action taken without jurisdiction) an application for judicial review could be commenced even though an alternative way to challenge a decision is available, for example by way of an appeal. There are circumstances where, despite the limitation in the Municipal Act, 2001 a party may proceed by way of judicial review and seek to quash a by-law. However, timing will be a factor. The court may refuse to hear an application or grant relief on the basis of delay.

[7] At the time the Judicial Review Procedure Act was first enacted[^3] there was no limitation period provided by which such an application was to be commenced. Applications for judicial review were to be brought within a reasonable period, as determined in each case, by the particular facts and context. Over time it was determined that, generally, a delay of six months in commencing such an application would, on its own, justify a dismissal on the basis of delay:

This Court has held on numerous occasions that delay on the part of an applicant of more than six months in the commencement of an application or twelve or more months in the perfection of an application could be serious enough alone to warrant the dismissal of the application.[^4]

[8] This judicial review falls well outside the time frame set by that understanding.

[9] Once unacceptable delay has been established, the Court considers whether there has been a reasonable explanation for the delay, prejudice, and the equities of the case.[^5]

[10] Actual prejudice need not be proved; it can be presumed:

With unacceptable delay established, the question remains whether the delay has prejudiced YUFA, the respondent in the four applications for judicial review. There is no requirement for a demonstration of actual prejudice, it can be presumed. In a case involving a delay in a hearing or trial, prejudice is often expressed in terms of the impact the delay will have on the evidence. Do all the witnesses remain available? What would be the impact on their memories? This is not a factor on judicial review. In the matter before this court, the issue reflects on the impact the case could have if it is allowed to proceed. Given the passage of time, what is the point in hearing these applications now:

Finally, in the exercise of the Court's discretion it is proper to consider whether any useful purpose whatsoever would be accomplished by setting aside the recommendation and all proceedings hereto before the board.[^6]

[11] In this case, for more than four years the municipality has proceeded on the understanding that the planning and development of the property in question would be governed by By-law No. 15-286. Who is to say if and how the determination to implement planning policy in the City of Hamilton as this zoning by-law does, may have impacted other planning decisions? Such impacts could be specific and direct or the result of the need to balance the same values in other places. This goes back to what was said at the outset of these reasons. To allow the uncertainty that would accompany attacks on the efficacy of legislation in excess of four years after its enactment would deny the certainty necessary to allow for reasoned reliance on its terms. After the time that has passed, prejudice can be, I suggest should be, presumed.

[12] Even so in this case, it is not necessary to do so. Marshall has relied on the established zoning to purchase the property and to remediate it in preparation for developing it as By-law No. 15-286 allows. Marshall has applied for and by letter dated September 27, 2019, the City has given conditional site plan approval allowing for the redevelopment of the subject lands to include an “Esso On The Run with car wash, along with [a] travel agent, motor vehicle service, and motor vehicle storage (inside and outside) uses”.[^7]

[13] To my mind the more than four years that passed after the passage of By-law No. 15-286 and the accompanying prejudice, both presumed and actual, are cause enough to dismiss the application for delay. However, Robinson argued that there was a reasonable explanation for the delay-namely, that the process adopted by the City failed to provide adequate notice of the proposed amendment and its adoption. It was not until February 2019 that a sign posted on the Marshall property announcing that a car wash was coming soon suggested that there had been a change to the zoning.

Notice (Part 1)

[14] The Judicial Review Procedure Act was amended in 2020. As the Act now reads it states:

Time for bringing application

5 (1) Unless another Act provides otherwise, an application for judicial review shall be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred, subject to subsection (2).[^8]

[Emphasis added]

[15] On its own, this would serve as a further demonstration that to allow for the by-law to be quashed so long after its enactment would be unreasonable and to confirm its dismissal for delay. The subsection that follows provides:

Extension

(2) The court may, on such terms as it considers proper, extend the time for making an application for judicial review if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.

[16] Obviously, given the time of its enactment this section has no application to this case. However, it does bring into focus the subsidiary question of whether there is reason, despite the time that has passed, to allow this application to proceed. By her submissions counsel for the Applicant (Robinson) suggests she believes that there is.

[17] Counsel for Robinson submitted that the notices provided (on November 13, 2015, before the adoption of the amendment and on December 18, 2015 in recognition of the passage of By-law No. 15-286) were inadequate as to the location of the property as well as the by-law’s substance and terms being so obscure and hard to find as to be in breach of what the law required. This made it impossible for those who might be interested to recognize what was being proposed and to locate where, in the City, it would apply. This denied the public the right to participate, a breach so fundamental that even at this late date, this by-law and the process by which it was enacted should be subject to judicial review. Counsel was at pains to review each of the notices in an effort to support this submission.

[18] I do not agree.

[19] As perceived by the submissions of counsel for Robinson the process leading to the promulgation and passage of By-law No. 15-286 began at a meeting of the Planning Committee of the City of Hamilton held on October 20, 2015. A motion was brought forward by a member of the City of Hamilton council directing staff of the City to include within what were referred to as “housekeeping amendments to the Comprehensive Zoning By-law” three particular changes. Among the three was:

…a further amendment to the Existing Rural Commercial (E1, 151) Zone, Modified, for lands located at 2187 Regional Road 56 to also permit a Motor Vehicle Service Station.

[20] Counsel for Robinson sees this as significant for two reasons:

• the first is that a change allowing a new use (as she referred to it, a gas station in an agricultural zone) was hidden in a “housekeeping amendment” and

• the second that it was brought forward by a councilor rather than a landowner or member of the public making it a “political motion” to which counsel attaches a pejorative character or inherent bias, presumably in favour of its passage.

[21] I shall have more to say about these perspectives later in these reasons. For the moment, I note only that Joanne Hickey-Evans, the city planner who provided an affidavit found in the record[^9], indicated that the agenda for the meeting, in company with the Notice of Motion raising the prospect of the amendment to the applicable zoning, would, in the ordinary course, have been posted on the website of the City of Hamilton 5 days prior to the meeting of the Planning Committee. In the affidavit the planner states that she has no reason to doubt that the process was followed. The Agenda, at para. 10, refers to “Notices of Motion” and specifies “10.1 Housekeeping Amendments to Zoning By-law No. 05-200” which was apparently hyperlinked to the attached Notice of Motion which included a reference to the suggested change to permit a “Motor Vehicle Service Station” at 2187 Regional Road 56.[^10]

[22] Following the meeting of October 20, 2015, a Planning Committee Report was prepared. It reflected the recommendations made by the committee to the municipal council. The next scheduled meeting of the council took place on October 28, 2015. Like the committee meeting before it, the Agenda for the upcoming meeting of council would in the normal course have been posted on the city’s website 5 days prior to the meeting. As with the Agenda for the meeting of the Planning Committee, the planner has no reason to doubt this process was followed. The Agenda refers to the Committee Reports to be considered at the meeting. This included, at paragraph 6.3, the Planning Committee Report that followed the meeting of October 20, 2015 (“Planning Committee Report 15-016). At its meeting on October 28, 2015 the municipal council adopted, with amendments, that Planning Committee Report. With respect to the housekeeping amendments to By-law No. 05-200, there were no amendments. The Report, as adopted by the council, directed staff of the municipality to include, as part of the next housekeeping amendments, the three changes suggested at the Planning Committee including the suggested change of use to the lands at 2187 Regional Road 56.[^11]

[23] What this demonstrates is that the prospect of an additional specified use was introduced through the Planning Committee and the municipal council in a public way with the usual public notice: agendas and a report to Council each made available through posting on the City of Hamilton website. Citizens interested in the process of planning in the City of Hamilton would have been made aware that the issue of uses at the site in question had been raised. This is not the same as notice of a development proposal (none had been made) or a zoning change to be voted on (none had been brought forward).

[24] There were intervening steps to be taken: an opportunity for the public to comment and a planning report to be provided as advice and with recommendations to the members of council. In response to the direction of council, the Planning and Economic Development staff prepared a report that included consideration of the change being proposed for 2187 Regional Road 56. The Report was prepared for the meeting of the Planning Committee set for December 1, 2015. The suggested change in use was added to the Agenda as one of a number of “Modifications and Corrections” to various by-laws throughout the City of Hamilton to be taken up during the part of the meeting set aside for public hearings and delegations.[^12]

[25] Notice to the public was undertaken through publication in the Hamilton Spectator on November 13, 2015.[^13] This was the first of the notices reviewed by counsel for Robinson in her submissions to the court. She submitted it was wholly inadequate. Consistent with the Agenda, the “Notice of Public Meeting” (printed in bold type presumably to attract attention) is followed by the identification of the Notice as concerning “AMENDMENTS TO THE RURAL HAMILTON OFFICIAL PLAN AND MODIFICATIONS AND CORRECTIONS TO ALL FORMER MUNICIPAL ZONING BY-LAWS AND HAMILTON ZONING BY-LAW NO. 05-200.” What follows included, under the heading “What”, a list of each of the modifications and corrections to be made, among them:

• adding a Motor Vehicle Service Station as an additional permitted use at 2187 Regional Road 56.

[26] The purpose for the changes to the zoning by-laws were explained under the heading “Why?”:

Zoning By-law Amendments

The purpose of the Amendments is to amend definitions and regulations, to correct minor administrative issues and to address Council approved motions. The effect of the Amendments is to ensure that the By-laws remain up to date, clarify interpretation issues within the Zoning By-laws, provide consistency across all By-laws, to recognize an existing use and allow for the expansion of an existing use.

[27] What follows thereafter under the general heading “How” and subheadings “Accessing the Proposed “Amendments and Report”, “Additional Information” and “Appeals” are explanations:

• as to when the staff report will be available and how to obtain it,

• as to how to submit comments and how to pre-register as a delegation,

• that all comments made, and opinions offered, will become part of the public record,

• that a request can be made to be notified of the decision of council, and

• as to the limitations to the right to commence or take part in any subsequent appeal to the Ontario Municipal Board in the absence of making submissions at or in connection with the public review being undertaken at the meeting of December 1, 2015.

[28] Counsel for Robinson submits that this form of notice served to hide, in the midst of “housekeeping amendments”, a significant and substantial change of use, the addition of a “Motor Vehicle Service Station”. She suggested it would be difficult for anyone reviewing this notice to understand where the property, the subject of the change of use, was located. She asked rhetorically: “Where is the map?” and questioned the appropriateness of the use of the newspaper as the vehicle to deliver the notice.

[29] None of these objections have merit. Qualitatively it may be that “rectifying an administrative error (i.e. section numbers)” being the first of the “modifications and corrections” referred to in the published notice is different from a change of use. Correcting an administrative mistake does not change anything that may happen on the land. Not so others of the prospective changes listed in the notice:

• repealing the definition of height

• adding a definition of grade

• revising the definition of model home

• clarifying the accessory building regulations

• recognizing an existing self-storage facility as a permitted use, and

• allowing the expansion of an existing agricultural processing facility.

[30] It might take a little initiative but the property could be located using the address which was provided. As for the use of a newspaper as the vehicle to circulate notice, this is recognized as appropriate by the applicable regulation made under the authority provided in the Planning Act[^14]:

5. (1) This section applies to notice of a public meeting and to notice of an open house, if any, for the purposes of subsection 34 (13) of the Act.

(7) Notice shall be given by publishing a notice in a newspaper that, in the opinion of the clerk of the municipality or the secretary-treasurer of the planning board, is of sufficiently general circulation in the area to which the proposed by-law would apply that it would give the public reasonable notice of the public meeting or open house, as the case may be.[^15]

[31] The Hamilton Spectator is a newspaper of City-wide circulation.[^16]

The zoning review

[32] The problem with the approach taken on behalf of Robinson is that it treats the proposed change as if it was a free standing, site-specific amendment to a zoning by-law. It was not. There is a wider context which explains that these changes are part of broad-based overhaul of the City of Hamilton’s planning structure, in general, and its zoning by-laws in particular.

[33] The City of Hamilton Act, 1999[^17] caused the amalgamation of six former municipalities: the Towns of Ancaster, Dundas, Flamborough, Glanbrook, Stoney Creek and the City of Hamilton. This established what is now the City of Hamilton. The lands that are the subject of this application are located in what was the Town of Glanbrook. Until amalgamation, each municipality had its own zoning by-law. After the new city was established in 2001, a new comprehensive zoning by-law had to be developed in order to harmonize all of the applicable zoning regulations.

[34] The City of Hamilton’s new comprehensive zoning by-law (By-law No. 05-200) applies across the city as a whole. It replaced the zoning by-laws of each of the former municipalities. As explained in the affidavit of the city planner, it is being implemented in stages. In July 2015 the City passed By-law No. 15-173 which amended the comprehensive zoning by-law providing zoning for the areas designated as “Rural”. It implemented the policies and mapping of the Rural Hamilton Official Plan, harmonized rural zoning provisions across the City of Hamilton and carried into the comprehensive zoning by-law many site-specific zoning permissions including those from the pre-existing Glanbrook zoning by-law (By-law No. 464). As a result, the subject lands were zoned a site-specific “Existing Rural Commercial (E1, 151) Zone”. The permitted uses were “a motor vehicle storage, sales and repair operation and an office for a travel agency”. These uses were carried over from the prior Glanbrook zoning by-law.

[35] The development of the amalgamated zoning continues. It is, over time, being refined. Zoning By-law No. 15-286 (the by-law Robinson seeks to quash) is part of the continuing effort to complete the zoning associated with the amalgamation of the City of Hamilton:

The development of the Comprehensive ZBL has been an extensive undertaking. As it has been implemented, all of the zoning by-laws have required monitoring on an ongoing basis to ensure they remain easy to use and to continue to remedy any interpretation issues that may arise. Policy Planning and Zoning By-law Reform staff work with the Building Division and other Divisions within the Planning and Economic Development Department to identify any amendments that should be undertaken to provide easier use of, and clarity in, the zoning by-laws. Several revisions to the former municipal zoning by-laws and the Comprehensive ZBL have been required since 2005 to correct errors and to achieve uniformity in the interpretation and application of all the zoning by-laws, where appropriate. Many of these revisions have been made by way of housekeeping amendments.[^18]

The Planning Report

[36] The notices to which Robinson objects were in furtherance of this program of revision and refinement. This understanding explains the content and purpose of these notices. The content reflects revision to several zoning by-laws and the purpose was to fit these changes into the larger process of restructuring zoning throughout the City of Hamilton. This is confirmed by a reading of the Planning Report prepared by the staff of the municipality to assist its council. Counsel for Robinson argues that this report is another example of the City’s failure to properly communicate, to the public, the change of use at the subject lands. She submits that the report is deficient in that it contains no analysis concerning the appropriateness or planning justification for the change. Stephen Fraser, a land use planner who was retained to assist Robinson, outlined what, in his experience, was typically included in staff reports that considered a proposed change of use, the implication being that in the absence of these features the report produced was deficient:

In my experience, staff reports that recommend adding a use to a site-specific property typically contain a detailed analysis of the applicable planning policy hierarchy, including the applicable policies from provincial and municipal level planning documents. Such reports also contain sections on historical background policy implications and legislative requirements, relevant departmental and agency consultation, and analysis and rationale for the recommendation, and alternatives for consideration.[^19]

[37] This assessment fails to account for the fact that this amendment, and the others considered with it, were part of a larger process. The report was prepared in the context of that continuing process. Along with its consideration of the other proposed changes, the report reviews the history of zoning at the site, identifies the permitted uses, notes that the proposed change will conform to the applicable official plan and the Greenbelt Plan and that the change (along with the other proposed amendments) is minor in nature.[^20]

[38] John Ariens, the planner retained to assist Marshall, took account of this broad effort to consolidate zoning in the City of Hamilton:

Upon amalgamation, the “new” City of Hamilton inherited six separate Zoning By-laws from the former area municipalities. These all contained various zoning categories and regulations. Since amalgamation, the City has been diligently working on a new consolidated and comprehensive zoning bylaw that would apply across the entire “new” City. …

As is often the case during the process, site-specific zoning issues which affect particular parcels of land are addressed. Sometimes they are brought up during the initial public review process and sometimes they come up afterwards and are corrected through a “housekeeping” type of amendment… The latter occurred for By-law 15-286, part of the comprehensive planning process associated with the establishment of new rural zoning regulations for all of rural Hamilton. …[^21]

[39] John Ariens made no complaint and made no direct comment concerning the sufficiency of the report.

[40] Joanne Hickey-Evans was asked:

Q. In your experience, is it [this report] a fulsome and comprehensive planning policy analysis in relation to adding a motor vehicle service station use to the permitted uses on the subject property?

A. It is. It has a paragraph with respect to the Official Plan, and it is as fulsome as we have been in most application-it’s not an application. Most City initiatives.[^22]

The public meeting

[41] Following from the notice provided in the newspaper on November 13, 2015 and the staff report having been made available, on December 1, 2015, at the meeting of the Planning and Economic Development Committee, the public was provided with an opportunity to make submissions on the proposed addition of a “Motor Vehicle Service Station” as a permitted use on the subject lands. Thereafter, the Planning Committee recommended to council that this change, along with the amendments to the other various zoning by-laws also being considered, be approved.[^23]

The decision of City Council

[42] At its meeting on December 9, 2015, the council of the City of Hamilton adopted the recommendation made by the Committee and passed By-law No. 15-286.

[43] Notice of the Council’s decision was posted in the Hamilton Spectator on December 18, 2015.

Notice of Passing

[44] Once a zoning by-law has been enacted by the council of a municipality, the Planning Act requires that “written notice of the passing of the By-law be given in the prescribed manner, no later than 15 days after the day the By-law was passed,

(a) to the person or public body that made the application,

(b) to each person and public body that filed a written request to be notified of the decision, and

(c) to any prescribed person or public body.”[^24]

[45] Robinson would not have been among those to be so notified. It was the Notice of Passing of Zoning By-law No. 15-286 that was published along with other items in the Hamilton Spectator on December 18, 2015.[^25] Under the heading NOTICE OF THE PASSING OF ZONING AMENDMENTS BY THE CITY OF HAMILTON is an identification of the by-laws that had been passed, including By-law No. 15-286. The notice referred to the date of the passage of those by-laws, being December 9, 2015. It advised of the right to appeal to the Ontario Municipal Board and by whom, when and how this was to be done. The notice went on to say that if a Notice of Appeal was not received within the time limit set, the by-law would be final. The by-laws were listed as they had been in the earlier newspaper notice, in this case referring to the addition of “Motor Vehicle Service Station” as a permitted use and providing the address of the lands affected. As with the other notices, counsel for Robinson submitted that this notice was deficient, difficult to read and hard to follow. In particular and despite the inclusion of the address it is said that the notice did not reference the subject lands in the operative part of the notice.[^26] This Notice and the concerns expressed add nothing of substance to the complaint that there was a failure to properly notify or communicate with the general public or those who might have an interest in the change effected by the passage of By-law No. 15-286.

Notice (Part 2)

[46] The notice provided complied with the applicable requirements.[^27] The notice made mention of the date, time and location of the meeting. It provided an explanation of the purpose and effect of the proposed zoning by-law amendment and advised of the opportunity to make submissions on the matter to the Planning and Economic Development Committee. As a matter of substance, quite apart from any delay, there is no foundation to a request that requires the court to go behind and question the sufficiency of the notice provided. The position of Robinson is that it was unaware of the change put in place by By-law No. 15-286 until 2019 when the sign respecting the coming of the car wash appeared. Each of the notices on the City’s website concerning the Planning Committee meeting of October 20, 2015 and the meeting of City council on October 20, 2015 as well as the notices published in the Hamilton Spectator regarding the meeting to hear public delegations on December 1, 2015 and the subsequent notice of the passing of the by-law provided notice of the change. These notices were available as the proposed amendment was proceeding through the process. As will become apparent later in these reasons Robinson missed the notices because despite its continuing interest in developing a motor vehicle service station it was not following the course of the zoning review.

The right to participate

[47] Robinson has one further objection. It is submitted that in the absence of proper notice it, and others, were denied the right to participate in the consideration given to the by-law of concern:

A site-specific land use change requires, at a minimum, direct mail outs, public notice signs, public information open house, public meetings and posting on the City web site. Had this happened JBR would very likely have received notice of the proposed addition of a Motor Vehicle Service Station use in 2015 facilitating its participation in the Planning Act process as envisioned in the Planning Act.[^28]

[48] There are no others who challenged the by-law. No one else has raised a concern. Robinson does not have a substantive complaint that it lacked notice. Robinson has not engaged in this proceeding out of a concern for the planning process or objection to the use of the subject lands as a Motor Vehicle Service Station. To the contrary, in January 2014, Robinson investigated the purchase of the subject lands from Wills Motors to be developed for that purpose. Robinson wanted to construct a gas station, convenience store, coffee bar and commercial storage facility.[^29] Robinson met with and engaged in formal consultation with representatives of the City. Robinson was advised that a rezoning was required. It chose not to seek the rezoning. It chose a different path. It purchased a different property to be used for the same purpose. On or about June 5, 2019, the City gave conditional site plan approval for lands owned by Robinson for the construction of a gas station, fast food restaurant, car wash and retail building at 2506-2520 Regional Road 56, Glanbrook which is approximately one kilometer away from the lands now owned by Marshall.[^30] The catalyst for this application is not good planning, it is a commercial concern. This is acknowledged in the Reply Factum filed on behalf of Robinson:

This application is about commercial competition and the City’s role in that competition.[^31]

[49] The object of the application is to blame the City for decisions made and acted on by Robinson. In the Reply Factum filed on behalf of Robinson it is said that:

The City did not treat [Robinson] fairly. It directed it to the Usual Planning Act Process together with all its requirements to achieve a Land Use Change on the Subject Lands. Years later, it did not direct Marshall’s predecessor to that same process thereby permitting it to avoid all the associated public engagement, technical reports scrutiny, risk and costs.

The City’s actions in treating [Robinson] and Marshall’s predecessor differently cannot be sanctioned.[^32]

[50] To understand what happened, Robinson needs to look to itself and not the City of Hamilton. It determined not to proceed with its project at the subject lands and to go elsewhere. It did so knowing that the City was engaged in a comprehensive review of its zoning and had turned its attention to zoning in the rural area including these lands. Robinson’s planner, Stephen Fraser, was cross-examined:

Q. It was the start of a comprehensive zoning review for all the rural zonings for the City of Hamilton, is that fair?

A. That’s fair.

Q. And that culminates two years later in July 2015 with the bringing forward of the rural zoning for the City of Hamilton under Bylaw 15-173, is that fair?

A. That’s correct.

Q. So is it unfair to suggest that at the time that you were meeting with the City and exploring the possibilities for the Marshall land, there was a comprehensive zoning review going on in respect to the rural zoning for the City of Hamilton?

A. Absolutely, yes (sic).

Q. When we look at these notes is dated April 9, 2014, do you see the last entry on the page? It appears to read:

“Bylaw reform to know what’s planned for this property, bringing rural zoning to committee in 2015.”

Do you see that?

A. I do.

Q. So would I understand that, and did you understand that, to be a reference to the fact that the comprehensive zoning for the rural zones in the City of Hamilton was underway at that time?

A. Yes. I was aware of that, absolutely.[^33]

[Emphasis added]

[51] It was with this knowledge that Robinson determined to move on. It had an option. It could have acted within the scope provided by the ongoing process:

The comprehensive zoning consolidation process is different from any site-specific zoning process and follows a more dynamic process particularly in terms of public input, notice given to [the] public and the recognition given to existing uses and existing zoning permissions. Anyone with an interest in a parcel of land involved in such process needs to consistently monitor the process as changes are often made without direct public notice (mail out) as compared to the case with site-specific privately initiated applications.[^34]

[52] Stephen Fraser was present on December 1, 2015 when Zoning By-law No. 15-286 was to be the subject of delegations from the public. He was there on another matter for a different client:

I was not aware of the consideration of the Impugned By-law on December 1, 2015 as my due diligence for [Robinson] regarding these lands had concluded over a year and ½ before. I had not been asked by [Robinson] to monitor these lands.[^35]

[53] Having determined not to follow or take part in the zoning review which it knew was underway, Robinson cannot now blame the City because someone else was able to take up the change in zoning. Robinson relies on the mistaken idea that planning polices and the by-laws that implement them would stay unchanged so that what it was confronted with in 2014, while the rural zoning review was underway, would still be in place in 2015 after the review was complete and that now, more than five years later, this Court should exercise its discretion to enforce that understanding. To make use of a well-worn aphorism, in this situation planning, like time and tide, waited for no one. Robinson chose for itself not to wait out or take part in the zoning review in furtherance of the lands being zoned, as it has turned out, for the uses it sought.

Conclusion

[54] This takes these reasons back to where they began. It is too late to raise questions concerning notice, the process or the legality of By-law No. 15-286. As a result of the delay the court has declined to hear this application for judicial review on the merits. The application is dismissed.

Costs

[55] The Applicant (Robinson) was unsuccessful. Both the City and Marshall were represented and produced significant facta and took part in the submissions made to the Court.

[56] Costs to be paid by the Applicant to the City in the agreed upon amount of $38,000.

[57] Cost to be paid by the Applicant to Marshall in the agreed upon amount of $42,000.

Lederer, J.

I agree _______________________________

Swinton, J.

I agree _______________________________

Ryan Bell, J.

Released: February 16, 2022

CITATION: John Bruce Robinson Construction Limited v. Hamilton (City), 2022 ONSC 911

DIVISIONAL COURT FILE NO.: DC-20-74-JR

DATE: 2022/02/16

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Lederer, Ryan Bell JJ

BETWEEN:

JOHN BRUCE ROBINSON CONSTRUCTION LIMITED

Applicant

– and –

CITY OF HAMILTON and MARSHALL REAL ESTATE HOLDINGS LTD.

Respondents

REASONS FOR JUDGMENT

Lederer, J.

Released: February 16, 2022

[^1]: S.O. 2001, c. 25

[^2]: The principle enunciated in this section was recognized in Thunder Bay Seaway Non-Profit Apartments v. Thunder Bay (City), 7 MPLR (2d) 276, 53 OAC 176, 85 DLR (4th) 229, 5 OR (3d) 667:

It is not for a court to analyze the reasons and motives why a municipal council did not pass a by-law; the by-law may have failed to be enacted for the best or the worst of reasons. It is not the court's duty to look at "what might have been" in the legislative forum; our duty is to look at the "legislated product".

This comment was made without reference to the Municipal Act in place at the time (R.S.O. 1990, c. M. 45):

s. 101(2) (2) A by-law passed by a council in the exercise of any of the powers conferred by and in accordance with this Act, and in good faith, shall not be open to question, or be quashed, set aside or declared invalid, either wholly or partly, on account of the unreasonableness or supposed unreasonableness of its provisions or any of them.

[^3]: S.O. 1971, c. 48. The Judicial Review Procedure Act was one of a series of statutes enacted in 1971 in furtherance of Ontario’s response to the Royal Commission Inquiry Into Civil Rights (commonly the McRuer Report (Toronto: Queen’s Printer,1968))) including the Statutory Powers Procedure Act, S.O. 1971, c. 47; the Public Inquiries Act, S.O. 1971, c.49; the Civil Rights Statute Law Amendment Act, S.O. 1970, c. 50 and the Judicature Amendment Act (No. 4), S.O. 1971 c. 57.

[^4]: 1736905 Ontario Ltd. V. Waterloo (City), 2015 ONSC 6541 at para. 30 and see Know Your City Inc. v. The Corporation of the City of Brantford, 2021 ONSC 154 at paras. 45-46, Foster v. The City of Oshawa, 2020 ONSC 681 (Div. Ct.) at para. 4, Nahirney v. Human Rights Tribunal of Ontario, 2019 ONSC 5501 (Div. Ct.), at para. 5, Green v. Ontario Human Rights Commission 2010 ONSC 2648 at para. 6.

[^5]: Gigliotti v. Conseil d’Administration du Collège des Grands Lacs, 2005 23326 (ON SCDC), 76 O.R. 561, [2005] O.J. No. 2762.

[^6]: Khaiter v. Labour Relations Board (Ontario), 2013 ONSC 791 at para. 15 quoting from Gigliotti v. Conseil d’Administration du Collège des Grands Lacs, 2005 23326 (ON SCDC), 76 O.R. 561, [2005] O.J. No. 2762, at para. 33, in turn quoting from R. v. Board of Broadcast Governors, 1962 223 (ON CA), [1962] O.R. 657, 33 D.L.R. (2d) 449 (C.A.)

[^7]: Affidavit of Joanne Hickey-Evans, sworn March 15, 2021, at para. 40 (Caselines B207)

[^8]: Smarter and Stronger Justice Act, 2020, S.O. 2020, c. 11, Sched. 10, s. 2

[^9]: Joanne Hickey-Evans is a member of the Canadian Institute of Planners and a Registered Professional Planner with 35 years experience at the City of Hamilton and the Region of Hamilton-Wentworth who has, since 2001 held the position of Manager of Policy Information Planning and Zoning By-law Reform with the City.

[^10]: Affidavit of Joanne Hickey-Evans, sworn March 15, 2021, at paras. 16-17 and Exhibit E (Caselines B198, B253 and B255)

[^11]: Ibid at para. 18 (Caselines B199) and Exhibit F at p. 2 of 3 (Caselines B259) and Exhibit G at para. 11 (Caselines B269) and at para. h (Notices of Motion), subpara. (i) (Housekeeping Amendments to Zoning By-law No. 05-200 (Added 10.1)) (Caselines B280)

[^12]: Ibid at para. 20 and Exhibit J at para. 6.4 (Caselines B325):

Amendment to the Rural Hamilton Official Plan, and Modifications and Corrections to the Town of Ancaster Zoning By-law No. 87-57, Town of Dundas Zoning By-law No. 3581-86, Town of Flamborough Zoning By-law No. 90-145-Z, Township of Glanbrook Zoning By-law No. 464, City of Hamilton Zoning By-law No. 6593, City of Stoney Creek Zoning By-law No. 3692-92 and Hamilton Zoning By-law No. o5-200 (PED 15028(a)) (City Wide).

[Emphasis added]

[^13]: Ibid at para. 21 and Exhibit K (Caselines B330)

[^14]: Planning Act

[^15]: O. Reg. 545/06 at ss. 5(1) and (7)

[^16]: Affidavit of Joanne Hickey-Evans, sworn March 15, 2021, at para. 38 (Caselines B206)

[^17]: S.O. 1999, c. 14

[^18]: Affidavit of Joanne Hickey-Evans, sworn March 15, 2021, at para. 6 (Caselines B194 and B195)

[^19]: Affidavit of Stephen Fraser, sworn February 11, 2020, at paras. 33 and 37 (Caselines A552 and A555)

[^20]: Affidavit of Joanne Hickey-Evans, sworn March 15, 2021, Exhibit I (Report PED 15028(a)) at para. 4. Council Motion (4.2: 2187 Regional Road 56 (Wills Motors Limited)) (Caselines B310), 2.0 Rural Hamilton Official Plan (2187 Regional Road 56) (Caselines B305), 1.0 Provincial Policy (Caselines B304) and RECOMMENDATIONS, para. (b)(ii) (Caselines B302)

[^21]: Affidavit of John Ariens, sworn March 25, 2021, at paras. 23, 26 and 27 (Caselines B625 and B626)

[^22]: Transcript Cross-examination of Joanne Hickey-Evans at Q 80 (Caselines A804)

[^23]: Affidavit of Joanne Hickey-Evans, sworn March 15, 2021, Exhibit M (Report PED 15-019) at para. 9(b)(ii) (Caselines B361)

[^24]: Planning Act, supra (fn.14) at s. 34(18)

[^25]: Affidavit of Joanne Hickey-Evans, sworn March 15, 2021, Exhibit O (Caselines B394)

[^26]: Factum of the Applicant at para. 33 (Caselines A13)

[^27]: The Planning Act, 3. Section 34(14.3) of the Planning Act allows a municipality to set out in its Official Plan “alternative measures for informing and obtaining the views of the public in respect of proposed zoning by-laws”. The City of Hamilton’s Rural Hamilton Official Plan includes such “alternative measures” at Section F.1.17- Public Participation and Notification Policies (Chapter F – Implementation) (Affidavit of Joanne Hickey-Evans, sworn March 15, 2021, Exhibit Q) (Caselines B435)

[^28]: Factum of the Applicant at para. 66 (Caselines A23)

[^29]: Ibid at para. 6 (Caselines A5)

[^30]: Affidavit of Joanne Hickey-Evans, sworn March 15, 2021, at para. 44 (Caselines B209) and Affidavit of Stephen Fraser, sworn February 11, 2020, at paras. 28 and 29 (Caselines A551)

[^31]: Reply Factum of the Applicant at para. 5 (Caselines A911)

[^32]: Ibid at paras. 4 and 5 (Caselines A911)

[^33]: Cross-examination of Stephen Fraser, May 11, 2021, at Q. 91-95 (Caselines B1082 and B1083)

[^34]: Affidavit of John Ariens, sworn March 25, 2021, at para. 26 (Caselines B626)

[^35]: Affidavit of Stephen Fraser, sworn on May 3, 2021, at para. 10 (Caselines A731)