CITATION: Blair Engaged - Residents’ Association Inc. v. Corporation of the City of Cambridge, 2023 ONSC 1964
COURT FILE NO.: 22/133
DATE: 20230331
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
Nishikawa, Leiper and Schabas JJ.
BETWEEN:
Blair Engaged - Residents’ Association Inc.
Applicant
– and –
The Corporation of the City of Cambridge, Broccolini Real Estate Group (Ontario) Inc., 140 Old Mill Road GP Inc., 140 Old Mill Road Coinvest GP Inc., 140 Old Mill Road Limited Partnership and 140 Old Mill Road Coinvest Limited Partnership
Respondents
COUNSEL:
Brandon Duewel, for the Applicant
Brian Gover, Kim Mullin and Olivia Eng, for the Corporation of the City of Cambridge
Christopher Lee, for the Broccolini and Old Mill Respondents
HEARD: February 8, 2023 (by videoconference)
REASONS FOR DECISION
BY THE COURT
Overview
[1] The Applicant, Blair Engaged-Residents’ Association Inc. (“Blair Engaged”) seeks judicial review of a decision made by the City Council of the Corporation of the City of Cambridge (“Council”) on May 17, 2022. The decision approved the site plan application of the Respondent developer, Broccolini Real Estate Group (Ontario) Inc. (“Broccolini”), to demolish certain structures and permit construction of a one million square foot warehouse/distribution centre on certain lands within the Blair Village Heritage Conservation District (“BVHCD”). The Old Mill Respondents are the registered owners of the subject lands, 0, 128, 134, 140, and 228 Old Mill Road (the “Broccolini lands”). Also on May 17, 2022, Council approved the Scoped Heritage Impact Assessment (“SHIA”) and Traffic Impact Study (“TIS”) submitted by Broccolini to the City of Cambridge (“Cambridge” or the “City”). The approval of the site plan application, SHIA and TIS are referred to collectively as the Decision.
[2] Under the BVHCD Plan, the area in which the proposed development was to be constructed was zoned to permit general industrial uses including manufacturing, processing, fabrication, and warehouses. Prior to seeking the City’s approval of its application, Broccolini had obtained, with the support of Council, a Minister’s Zoning Order (“MZO”) to have the entire parcel of land zoned to include a “distribution warehouse.”
[3] Following the issuance of the MZO, Broccolini was required to fulfil various conditions in order to obtain site plan approval for its proposed development. The City's Official Plan required that Council approve, among other things, a traffic impact analysis identifying how the development would impact the local and regional road network. Because the Broccolini lands are located within the BVHCD, a cultural heritage impact assessment was also required to support Broccolini’s application for a heritage permit.
[4] On March 21, 2022, following extensive consultations and public meetings, Council voted five to four to reject Broccolini’s application for site plan approval. On May 5, 2022, Broccolini appealed that decision to the Ontario Land Tribunal (the “OLT”).
[5] On May 17, 2022, Council voted in favour of a motion to reconsider the Broccolini application. Council then voted six to two to approve it.
[6] The map below shows the proposed location of the warehouse as area 8, its proximity to the Fountain Street/401 off-ramps directly to the north of area 8, and to Blair Village itself which is primarily in areas 1, 4, and 5:
[7] Blair Engaged seeks public interest standing to set aside the Decision, on grounds of bad faith, illegality, and lack of procedural fairness. Blair Engaged takes the position that Council failed to give notice that it would reconsider the application on May 17, 2022, in breach of its own procedural by-law. Blair Engaged further submits that members of Council voted in part based on irrelevant considerations, including the threat of litigation.
[8] Broccolini submits that this application is moot: buildings have been demolished, construction of the warehouse began in June 2022 and is well underway. As of February 2023, when this application for judicial review was heard, construction was more than 50 percent complete. It is expected to be completed in early 2024.
[9] The Respondents further submit that the Decision was made after hearing from all sides of the issue in March. Cambridge acknowledges that although the process may not have been “perfect,” it was fair and there was prior consultation. Cambridge submits that Council did not breach the applicable procedural by-law or any limited rights of procedural fairness owed to Blair Engaged.
[10] For the reasons that follow, we conclude that Blair Engaged has public interest standing to bring this application for judicial review. We also conclude that the application is not moot because there are some limited aspects of the project that could be affected by a decision of this Court. On the merits of the application for judicial review, we conclude that the City did not owe Blair Engaged a duty of procedural fairness in making the Decision. Further, to the extent the City may have owed the Applicant a duty of procedural fairness it was very limited and was met in this case. Although we conclude that Council breached its procedural by-law by failing to give adequate notice of the motion to reconsider the matter, Council did not act in bad faith in doing so and, having regard to all the circumstances, we decline to grant the relief sought by Blair Engaged.
Factual Background
The Statutory Scheme
The Ontario Heritage Act
[11] Part V of the Ontario Heritage Act, R.S.O. 1990, c. O.18, (the “Heritage Act”) deals with heritage conservation districts. Under s. 41(1) of the Heritage Act, a municipal council may designate an area within the municipality as a heritage conservation district. It must then pass a by-law adopting a heritage conservation district plan for that district: Heritage Act, s. 41.1(1). Subsection 41(5) enumerates the elements that a heritage conservation district plan must include.
[12] Pursuant to s. 42 of the Heritage Act, before any property owner within a designated heritage conservation district can alter the property or erect, demolish, or remove any structure on the property, it must first obtain a “heritage permit” from the municipality. Under s. 42(4.1), where a municipality has established a municipal heritage committee, council must first consult with the committee prior to issuing its decision on the heritage permit.
[13] Once a property owner has applied for a heritage permit, the municipal council must then decide to either grant the permit; give the applicant notice that council is refusing to grant the permit; or grant the permit with terms and conditions. Under s. 42(5) of the Heritage Act, if the municipal council fails to do any of those things within a certain time period, council “shall be deemed to have given the applicant the permit applied for.”
[14] As the Broccolini lands are located within the BVHCD, Broccolini was required to obtain a heritage permit to demolish the existing structures and to erect a new structure on the Broccolini lands.
The Planning Act
[15] Section 41 of the Planning Act, R.S.O. 1990, c. P.13 (the “Planning Act”), empowers Council to designate an area to be a site plan control area. Where an area is designated as a site plan control area, Council’s approval is required before any development may be undertaken in that area. Pursuant to s. 41(4.0.1) of the Planning Act, Council has delegated responsibility for site plan approval to the Chief Planner.
[16] The entire City of Cambridge is designated as a site plan control area. As such, Broccolini was required to obtain site plan approval for its proposed development. Applicants for site plan approval are required to submit to the City prescribed information and materials, as well as other information or materials that the City considers that it may need: Planning Act, ss. 41(3), (3.3).
[17] Section 47 of the Planning Act provides for the issuance of an MZO by the Minister of Municipal Affairs and Housing (the “Minister”). Pursuant to s. 47, the Minister may make an order rezoning land without the need to follow the process for enacting a municipal zoning by-law. Subsection 47(5) expressly provides that no notice or hearing is required prior to the issuance of an MZO.
Blair Village and its Designation as a Heritage Conservation District
[18] Blair Village is a community of approximately 450 people, located at the intersection of three creeks which enter the Grand River. It is located within the Six Nations Haldimand Tract (Treaty 3). Treaty 3 was signed in 1792, by the Mississaugas of the New Credit and representatives of the British Crown.
[19] In 1800, the village, originally named “Shinglebridge” or “Lambs Bridge,” was the site of a German Mennonite settlement, including grist mills and a sawmill. The village was later renamed Blair.
[20] In the 1950s, Blair Village became part of the Township of Preston. In 1973, the City of Cambridge absorbed the Township of Preston, and Blair Village became part of Cambridge.
[21] In 1997, Cambridge incorporated the recommendations of the Blair Area Special Study into its Official Plan. In January 1998, Cambridge authorized preparation of a Heritage Conservation District Plan for Blair Village (the “BVHCD Plan”) to govern the BVHCD.
[22] The BVHCD Plan, adopted in 2001, developed goals, policies, and “Conservation Guidelines” for Blair Village. The BVHCD Plan required that new buildings and work on existing historic structures be reviewed by the Cambridge Municipal Heritage Advisory Committee (the “MHAC”), with the goal of ensuring that Blair Village would retain its character and form as a village.
[23] The BVHCD Plan states, in part, that “new development must be assimilated into the village – not be an entity unto itself, nor engulf the village.” It contained additional policies and restrictions on new buildings such as height limits and locations, lot coverage restrictions, road width and composition restrictions, and a requirement that any business park development use berms and landscaping to place a visual screen between those lands and existing residences.
[24] The BVHCD Plan meant that Blair Village was designated a Heritage Conservation District under Part V of the Heritage Act, to which the legislative requirements detailed above apply.
[25] The BVHCD Plan did not prevent development or business uses. Lands to the west of Blair Village, adjacent to Highway 401, designated as Areas 7 and 8, were identified as “secondary tier” lands peripheral to the historic village, intended for a “future campus-style industrial park.” The lands are zoned industrial and are known locally as the “Blair Business Park.” Area 7 of the Blair Business Park is part of the campus for Conestoga College. The Broccolini lands are in Area 8 of the Blair Business Park.
The Broccolini Proposal and Cambridge’s Support for an MZO
[26] In late 2020, Broccolini met with City staff regarding a possible redevelopment of the Broccolini lands. On February 25, 2021, Broccolini submitted a report to City planning staff in support of its request for the City’s support to obtain an MZO pursuant to s. 47 of the Planning Act. The request was to have the zoning for the Broccolini lands, which permitted general industrial uses including manufacturing, processing, fabrication, and warehouses, changed so as to include a “distribution warehouse.” On March 30, 2021, Cambridge released a staff report recommending support for Broccolini’s request.
[27] On April 6, 2021, Council unanimously passed resolutions to support Broccolini’s request for an MZO and directed staff to work with Broccolini to implement the MZO through future Planning Act applications. Council issued tree-cutting and grading permits to Broccolini in advance of the granting of the MZO and site plan approval.
[28] On April 20, 2021, a member of Council sought reconsideration of the decision to support the MZO. That request was not sufficiently supported, and the matter was not reconsidered. On April 26, 2021, the City wrote to the Minister to affirm the City’s endorsement of Broccolini’s request for an MZO.
[29] In April 2021, residents initiated an online petition entitled “Help Save the Village of Blair from a Development on Heritage Conservation Lands,” directed to members of Council and City staff. The petition identified concerns with the Broccolini proposal including increased traffic, light pollution, disturbance to area residents, the impact on habitat and wildlife, and the strain on local infrastructure.
[30] On May 1, 2021, Broccolini published notice of a public information session on May 6, 2021, in the Waterloo Region Record and requested questions or comments in writing. In the aftermath of that meeting, members of Blair Engaged wrote to members of Council and to the Ministry of Municipal Affairs and Housing (the “Ministry”).
[31] Also on May 6, 2021, Cambridge wrote to the Minister requesting the MZO for the Broccolini lands.
[32] In June 2021, residents of Blair Village formed Blair Engaged to respond to the Broccolini application. Residents sent letters of concern to Council and to the Ministry.
[33] On August 9, 2021, Broccolini met with representatives from the Land Use unit of the Six Nations-Grand River. By letter dated August 11, 2021, Broccolini provided information to the Land Use unit about alterations to the proposal to respond to traffic concerns, a reduced building size, and larger landscape buffers.
The MZO
[34] On August 27, 2021, the Minister granted an MZO which permitted warehouse and distribution centre uses on the Broccolini lands. The MZO also set out standards for the development, including a maximum building height of 15 metres, a minimum planting strip width of one metre along Old Mill Road, a minimum planting strip width of three metres for any exterior lot lines abutting a municipal road allowance, and a minimum parking area of 10 percent of the lot area.
[35] Nevertheless, prior to being permitted to build, Broccolini was still required by the City’s Official Plan to obtain site plan approval from Council including approval of a TIS and a SHIA.
The Broccolini Site Plan Application
[36] On November 9, 2021, Broccolini applied to Cambridge for site plan approval, including a permit to demolish three structures on the lands and to construct the warehouse/distribution centre. The application also included a SHIA prepared by an international consulting firm, WSP Canada (“WSP”). The SHIA concluded that the buildings had no heritage value and that Blair Village would experience minor to moderate impacts, which could be mitigated by certain conservation recommendations. A TIS was also submitted, and made recommendations on how to mitigate the impact of truck and employee traffic on Blair Village.
[37] The City deemed the application complete on November 10, 2021. On November 18, 2021, the City posted the application on its website under the tab for “Current Development Applications.” The City retained a heritage consultant, Leah Wallace, to conduct a peer review of the SHIA. It also retained an engineering firm to conduct a peer review of the TIS.
[38] On December 9, 2021, the City sent Broccolini a detailed Site Plan Control Application Comment Checklist – For Site Plan Applications.
[39] The affected City departments, the Waterloo Region Conservation Authority, and the Ministry of Transportation were consulted for comments, with some requiring amendments to the site plan application.
Amendments to the Site Plan Application
[40] On January 21, 2022, Ms. Wallace submitted her peer review to the City, which concluded that Council and City staff would benefit from additional information and analysis before making an informed decision about the impact of the Broccolini application on the surrounding properties and the heritage landscape of Blair Village. Ms. Wallace identified a number of missing elements in the SHIA.
[41] Broccolini then sought advice from WSP. On February 3, 2022, Broccolini provided a memorandum which revised its plan to incorporate a 1.5 metre berm, trees, and vegetation to create a buffer between residential properties east of Dickie Settlement Road and the development (the “Addendum”).
[42] On February 9, 2022, the City’s Planning Department issued a 16-page report (the “Planning Staff Report”) which recommended that the application, as modified by the Addendum, be approved. The Planning Staff Report set out the background to the Broccolini application. The report described the existing structures and acknowledged that they were not considered to have any heritage value. The Planning Staff Report discussed alternatives to the proposed development, including the option to “do nothing,” which was not considered feasible as the land was zoned for industrial use or campus style developments with the potential for greater impacts on Blair Village and traffic patterns. The Planning Staff Report concluded that the Broccolini proposal was the preferred option because it represented “minimal intervention to a heritage resource.”
[43] The Planning Staff Report made nine recommendations, including that the existing structures be demolished, the construction of the warehouse/distribution centre proceed, and that alterations be made to Old Mill Road west of Dickie Settlement Road.
The Municipal Heritage Advisory Committee Does Not Recommend Approval
[44] On February 17, 2022, the MHAC met to consider the Planning Staff Report. Thirty delegates from Blair Village were in attendance. On behalf of Broccolini, representatives of WSP gave a presentation regarding the project to the MHAC.
[45] The MHAC voted unanimously against all nine recommendations included in the Planning Staff Report.
[46] By letter dated March 3, 2022, the MHAC informed Council of the unanimous rejections of the recommendations.
March 15 and 21, 2022 Council Meetings
[47] On March 2, 2022, Cambridge posted notice that it would consider the Broccolini application at a meeting on April 5, 2022. However, on March 8, 2022, Cambridge changed the date of the meeting to a Special Council Meeting scheduled to be held on March 15, 2022.
[48] At the March 15 meeting, Council heard from representatives of Broccolini, Ms. Wallace, and from numerous members of the community. Two amendments to the Broccolini application, limiting truck traffic and adding a green “growing” wall to the structure, were approved. The meeting was adjourned at 11 p.m. without a vote on the entirety of the recommendations.
[49] Council reconvened on March 21, 2022. No further community delegates were heard from, but representatives of Broccolini addressed Council and responded to questions for over two hours. Council members asked a range of questions regarding the nature of the distribution centre, the types of trucks that would move product from the warehouse to other facilities, the groundwater management facility, the HIA, the peer review, and the Addendum.
[50] During the debate, members of Council recognized that the decision before them was a “difficult” one. One member cited the number of jobs and benefits to Cambridge. Some members mentioned the concerns of Blair Engaged but nonetheless supported Broccolini’s application. One member sought to defer a final decision, to give Council more time to consult residents and for the community to hear about the amendments, which were intended to reduce truck traffic and to add a green wall to the building. The motion to defer was defeated by a five to four vote.
[51] Council ultimately voted five to four to reject Broccolini’s application, including the SHIA and TIS.
Broccolini Appeals to the Ontario Land Tribunal
[52] On May 5, 2022, Broccolini commenced an appeal of Council’s decision to the OLT, submitting, among other things, that the heritage permits it sought were deemed to have been granted prior to March 15, 2022, by the operation of the 90-day deeming provisions in ss. 42(4) and 42(5) of the Heritage Act.
May 17, 2022, Council Meeting and Reconsideration
[53] Council met again on May 17, 2022. At that meeting, without any prior notice, a member of Council made a motion to reconsider the Broccolini application. Council voted six to two both to waive the requirement for notice of the reconsideration and to reconsider the matter.
[54] The member who moved the motion stated that he wished to have Council reconsider the matter for a number of reasons. These included his concern that he felt he had only heard from one side of the issue; that there had been an “outpouring” of support for the Broccolini proposal; that the appeal to the OLT would take the matter out of Council’s hands; and because development was key to Cambridge’s economic prosperity.
[55] The seconding member also raised concerns about Broccolini’s appeal to the OLT and the possibility that the benefit of amendments agreed to by Broccolini could be lost. The member was also concerned that the appeal would be time-consuming and costly for the City.
[56] Other members of Council commented that there was no notice of the motion and that they were not told in advance that this item would be brought forward for reconsideration, which made it look as if Council was trying to circumvent its own processes.
[57] In the end, Council voted in favour of the Broccolini application, including the SHIA and TIS, by a vote of six to two.
Construction Begins
[58] On June 1, 2022, Cambridge issued demolition permits for certain structures on the Broccolini lands. Demolition began on June 14, 2022, and was completed by July 8, 2022.
[59] On July 18, 2022, Blair Engaged served this application for judicial review on the Respondents.
[60] On August 30, 2022, Cambridge granted a conditional building permit to Broccolini. As of October 31, 2022, construction on the warehouse began with a foundation, and construction of structural steel and retaining walls. The construction is expected to be completed in early 2024.
Issues
[61] The following issues were raised on this application for judicial review:
(a) Does the Applicant have public interest standing to bring this application?
(b) Is the Application for judicial review moot?
(c) Did the City owe a duty of procedural fairness to the Applicant? If so, was the duty of procedural fairness breached?
(d) Is the Decision void for illegality or bad faith?
(e) Were the heritage permits deemed granted by the operation of ss. 42(4) and 42(5) of the Heritage Act?
Analysis
Does the Applicant Have Standing?
[62] The Applicant, Blair Engaged, is a not-for-profit incorporated neighbourhood association of residents of Blair Village. Blair Engaged has a mandate to advocate for the conservation of local heritage assets, and adherence to municipal by-laws and procedures which apply to BVHCD under the Heritage Act.
[63] This application raises issues that directly affect Blair Village, namely, the application of the Heritage Act and the process followed by Cambridge in considering the Broccolini application to erect a one million square foot distribution warehouse within the BVHCD.
[64] The record reveals significant interest from the public in the Decision taken by City Council on this development. Council voted closely against it, followed by a vote in favour of the development at a meeting for which no advance public notice was provided. The question of the procedures followed raises a justiciable issue in which the Applicant has a legitimate interest.
[65] Based on the test set out in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, 2 S.C.R. 524, we find that Blair Engaged should be granted public interest standing to bring this application. The case raises a serious justiciable issue, Blair Engaged has a real stake in the proceedings and is engaged with the issues, and the application provides a reasonable effective means to bring the case to court.
Is the Application Moot?
[66] Broccolini submits that the application is moot. Buildings have been demolished and construction of the development is well-advanced. Indeed, in oral argument, Blair Engaged stated that it does not seek to stop the development but argued that Council could still address features of the proposed development that have a negative impact on the BVHCD and could benefit from further mitigation of those impacts. The City takes no position on the question of whether the controversy is moot.
[67] The Applicant submits that there is an ongoing controversy between the parties: that is, the nature and features of the structures which are not completed. The Heritage Act expressly permits municipalities to impose terms and conditions: Heritage Act, ss. 42(6) and 42(7).
[68] Where there is no longer a live controversy, a matter is moot. Even then, however, a court may exercise its discretion to hear a matter, having regard to whether there is an adversarial context, whether special circumstances justify using judicial resources to determine a moot issue, and whether the issue is consistent with the courts’ limited law-making function: Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, at pp. 358-363.
[69] Although a close call, we conclude that application is not moot. Construction of the distribution warehouse is not complete. Council could still impose additional mitigation requirements on the structure under the Heritage Act and through the application of other aspects of the relevant policy frameworks which aim to preserve the heritage character of Blair Village. To that extent, a live controversy remains.
Did Cambridge Owe a Duty of Procedural Fairness to the Applicant? If so, Was the Duty Breached?
[70] Blair Engaged relies on Congrégation des témoins de Jéhovah de St-Jérome-Lafontaine v. Lafontaine (Village), 2004 SCC 48, 2 S.C.R. 650, to argue that Cambridge owed it a duty of procedural fairness. The Applicant further submits that Cambridge breached that duty of fairness in failing to give notice that the decision would be reconsidered at the May 17, 2022, meeting, in reconsidering the matter without hearing further evidence, in failing to hear from both sides, and in failing to provide reasons.
[71] The Respondents submits that Cambridge owed no duty of procedural fairness to the public at large but that if any duty of procedural fairness was owed to the Applicant, it was minimal. The Respondents further submit that any such duty was satisfied by the opportunity to make submissions to counsel at the March meeting.
[72] A municipal council acting legislatively does not have a common law duty of procedural fairness to those who may be affected by its actions: Toronto Taxi Alliance Inc. v. City of Toronto, 2015 ONSC 685, O.J. No. 396, at para. 48. However, a public body is bound by a duty of procedural fairness when it makes an administrative decision affecting individual rights, privileges, or interests: Congrégation des témoins de Jéhovah, at para. 3. The distinction between legislative and administrative action is whether the result is general or particular: Toronto Taxi Alliance, at para. 49.
[73] In this case, the decision affected the rights and interests of Broccolini and was thus an administrative, as opposed to legislative, decision. There is no dispute that Cambridge owed a duty of procedural fairness to Broccolini.
[74] The issue of whether Cambridge owed a duty of procedural fairness to the Applicant’s members is less straightforward. In Eastern Georgian Bay Protective Society Inc. v. Minister of the Environment, Conservation and Parks, 2021 ONSC 4038, O.J. No. 3063(QL) (Div. Ct.), at para. 27, this Court held that “[t]here is no general common law duty of procedural fairness owed to the public at large whenever a government entity grants a particular person a licence, permission or approval of some kind. To the extent any such duty arises at all, it would only be to neighbouring landowners or those with a direct interest in the outcome.”
[75] In this case, the Applicant brings the application for judicial review as a public interest litigant. The Applicant does not rely on a particular interest in land and has not sought to demonstrate a direct interest in the outcome of the decision. This supports the conclusion that Cambridge did not owe a duty of procedural fairness to Blair Engaged. However, if Cambridge owed a duty of procedural fairness to the Applicant or its members, an application of the factors from Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, would lead to a finding that the duty is at the lower end of the spectrum. Our analysis of the Baker factors follows.
[76] Nature of the decision: As discussed above, the nature of the Decision made by Council is administrative, as opposed to legislative, in nature. However, the Decision was made by majority vote of elected Council members. In making the Decision, Council was not acting in an adjudicative or quasi-adjudicative role in relation to Blair Engaged and it would not be appropriate to apply standards of fairness that apply to an adjudicative body: Drake v. Stratford (City), 2011 ONCA 98, 79 M.P.L.R. (4th) 39, at para. 15.
[77] Nature of the statutory scheme and the terms of the statute under which the decision-maker operates: The relevant statutory schemes do not support extensive procedural fairness requirements. The provision applicable to site plan approval, s. 41 of the Planning Act, does not require notice or public consultation. The Planning Act does, however, provide for public consultation for other processes, such as before a municipality adopts an official plan or when passing a zoning by-law: Planning Act, ss. 17(15)(d) and 34. The legislature thus could have, but chose not to, imposed notice and consultation requirements under s. 41. As the Ontario Municipal Board has observed, the requirements of the site plan approval process are “matters of micro-managements of the site…. They are not matters of a nature arising from the first principles of land use or considerations implying a larger concern beyond the immediate environ of the site”: 1341665 Ontario Ltd. v. Toronto (City), [2003] O.M.B.D. No. 1274, at para. 5, leave to appeal to the Divisional Court refused, Lafarge Canada Inc. v. 1341665 Ontario Ltd., [2004] O.J. No. 1572.
[78] Similarly, the Heritage Act contains no requirement for notice to the public or consultation before issuing a heritage permit. While s. 42 requires that Council consult with the MHAC prior to making a decision, it does not require public consultation. Moreover, only the property owner can appeal the municipality’s decision: Heritage Act, s. 42(6). There is no provision for third parties to appeal. In addition, like the Planning Act, the Heritage Act provides for public consultation in other instances, for example, when a municipality adopts a heritage conservation district plan.
[79] Importance of the decision to the individual affected by it: In terms of the importance of the decision to those affected by it, the decision is important to Broccolini, whose property rights are directly at stake. The Decision is also significant to the Applicant’s members in the sense that they feel strongly about the plan for a major distribution centre that would permanently alter the visual entry to Blair Village, its roads and traffic patterns, among other things. Nonetheless, the site plan approval process does not affect the legal rights or obligations of the Applicant or its members. While they might be affected by the decision, their rights are not: Lafarge Canada Inc., at paras. 7-8. Accordingly, this factor also weighs in favour of a lower degree of procedural fairness.
[80] Legitimate expectations of the individual affected by the decision: Council made no clear, unambiguous or unqualified representations to the Applicant about the procedure that would be followed. The Minister’s comments about consultation as part of the MZO were not Cambridge’s representations. The Applicant has not established that its members had a legitimate expectation of higher participatory rights. See: Canada (Attorney General) v. Mavi, 2011 SCC 30, 2 S.C.R. 504, at para. 68.
[81] Respect for the procedural choices made by the decision-maker itself: Council’s choice of procedure is reflected in the Procedural By-Law, which provides specific notice and other requirements for meetings and voting. The By-Law does not contain specific procedures relating to decisions of this nature under the Planning Act. It does, however, provide specific requirements in relation to motions to reconsider, which we address later in these reasons.
[82] Accordingly, based on our assessment of the Baker factors, if Cambridge owed a duty of procedural fairness to Blair Engaged, it was at the low end of the spectrum.
[83] To the extent that Cambridge owed a duty of procedural fairness to the Applicant, that duty was met. Council provided notice to the Applicant and its members that it was considering whether to approve the SHIA and TIS. Broccolini’s site plan application materials were posted on the City’s website and were readily accessible to the public in advance of the March 15 meeting. Cambridge also provided notice of the MHAC meeting on February 17, 2022, and 30 delegates, including members of Blair Engaged, attended. Members of Blair Engaged and the public were provided a full opportunity to make submissions at the March 15 meeting and to ask questions at the March 21 meeting. Finally, on the issue of reasons, as noted by the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 4 S.C.R. 653, at paras. 136-137, decisions of municipal councils are a prime example of the kinds of decisions where reasons are not required.
[84] Accordingly, we find that the City did not owe the Applicant a duty of procedural fairness in making the Decision. To the extent that a duty of procedural fairness was owed, it was at the low end of the spectrum and was satisfied by the steps taken by the City before making the Decision.
Is the Decision Void for Illegality or Bad Faith?
Did Cambridge Breach its Procedural By-Law?
[85] The Applicant submits that the May 17, 2022 Decision was made in breach of Cambridge Procedural By-Law 18-15 (the “Procedural By-Law”).
[86] Subsection 238(2) of the Municipal Act, 2001 S.O. 2001, C. 25 (the “Municipal Act”), requires that every municipality in Ontario enact a procedural by-law governing the calling, place, and proceedings of meetings. Subsection 238(2.1) of the Municipal Act requires that procedural by-laws provide for public notice of meetings, which are to be held in public, subject to certain exceptions found in s. 239 of the Act.
[87] Notices of motion are dealt with in s. 17 of the Procedural By-Law as follows:
Timing of Notice
17.2 THAT a notice of motion shall be provided to the Clerk and introduced at the meeting immediately preceding (as a minimum) the meeting in which the motion shall be heard. It shall be in writing and shall include the name of the mover and seconder.
Agenda Materials
17.3 THAT the Clerk shall include in the Agenda materials any reports from City staff relating to a notice of motion submitted in accordance with section 17.2.
Committees
17.4 THAT any notice of motion, the subject matter of which falls within the mandate of a Committee, shall be referred directly to that Committee by the Council unless the Council determines that it should not be first considered by the Committee, for reasons of emergency, health, safety, or legal deadline.
[88] Motions for reconsideration are addressed in ss. 16.16-16.19 of the Procedural By-Law, which permit reconsideration of decisions where the moving and seconding members of Council voted with the majority on the first consideration of the matter and where, if within two years of the decision, a special majority (two-thirds of Council) votes in favour of reconsideration.
[89] Section 16.20 specifically requires notice of a motion to reconsider be made in accordance with s. 17.2 of the Procedural By-Law. Sections 16.21-16.26 contain further procedural requirements for motions to reconsider, including that they are not debatable.
[90] It is undisputed that notice of the motion to reconsider was not given, as required by s. 17.2 of the Procedural By-Law. No materials were placed on the agenda at the time of reconsideration, as required under s. 17.3.
[91] As noted above, a special majority voted to waive notice of the motion for reconsideration. Cambridge submits that s. 22.1 of the Procedural By-Law permitted Council to waive notice. Section 22.1 reads:
Certain rule suspension
22.1 THAT by a Special majority vote, Council may suspend the rules contained in Section 5 herein related to Notice.
[92] Section 22.1, however, only applies to s. 5 of the Procedural By-Law, which pertains to notice of “all meetings of Council, agendas, agenda items, cancellations and re-schedulings.” The provisions for motions brought by members of Council, and notice of such motions are in s. 17.2 of the Procedural By-Law. Because the Procedural By-Law contains no provision to suspend the rules for the giving of notice of a motion under s. 17.2, Council was not entitled to waive notice. The motion to reconsider was thus brought in breach of s. 17.2 of the Procedural By-Law.
[93] Moreover, the breach is not cured by s. 5.9 of the Procedural By-Law, which states as follows:
Failure to Meet Notice Provisions
5.9 THAT notice which is substantively given but which is irregular or not otherwise in strict compliance with this By-Law will not invalidate the holding of a meeting or any proceeding taken at a meeting.
[94] Notice of the motion to reconsider was not substantively given. The failure to give notice cannot be cured under this provision.
[95] Cambridge relies on Blyth v. Northumberland (County) (1990), 1990 6752 (ON SC), 75 O.R. (2d) 576 (Gen. Div.) to argue that even if there was a breach of the Procedural By-Law, it was merely technical and does not go to the substance of the Decision. In that case, Crossland J. assumed, but did not decide, that the reconsideration had not been done in compliance with the applicable procedural by-law, which he found to be a matter of “domestic concern” and “internal regulation.” In the absence of statutory requirements, he declined to interfere with a decision made in breach of the procedural by-law.
[96] In this case, we reject the submission that the breach was merely technical. The lack of notice of the motion to reconsider was a significant departure from the notice requirement under s. 17.2 and the requirement to file material pertinent to the matter under reconsideration under s. 17.3. There was no urgency to justify departing from the requirements of the Procedural By-Law. Members of council were not advised until the moment the motion was placed on the floor. Given the absence of notice, members of the community who might have wished to attend the meeting could not do so.
Is the Decision Void for Illegality or Bad Faith?
[97] As a general rule, courts show deference to municipalities and are reluctant to interfere with decisions of municipal governments within their jurisdiction. The deference of the courts to municipal councils extends to court oversight in the face of alleged procedural irregularities: Toronto Taxi Alliance, at para. 85.
[98] In Friends of Lansdowne Inc. v. Ottawa (City), 2012 ONCA 273, 110 O.R. (3d) 1, at para. 70, the Court of Appeal held that:
Assuming the absence of bad faith, any technical failure on the part of the municipality to adhere to its internal rules and procedures is an irregularity that does not vitiate the challenged decision.
[99] In Friends of Lansdowne, at para. 73, the Court of Appeal discussed the factors enumerated by the Supreme Court of Canada in London (City) v. RSJ Holdings Inc., 2007 SCC 29, 2 S.C.R. 588, at para. 39, which might lead a court to exercise its discretion to quash a municipal by-law based on illegality. These include “the nature of the by-law in question, the seriousness of the illegality committed, its consequences, delay, and mootness.”
[100] This case does not involve a decision of Council to pass a by-law. The Decision was to approve Broccolini’s application, as well as the SHIA and TIS. That process was already well under way with the approval of the MZO and the resolution passed by Council in April 2021 to support the MZO and further Planning Act applications submitted by Broccolini. Moreover, as a result of the Decision, the project is more than 50 percent completed. The consequences of the by-law breach are that Blair Engaged and members of the public were not present at the May 2022 meeting. However, given the absence of a public consultation requirement under the Heritage Act and Planning Act, the City had provided ample opportunity for submissions from the public at the March 2022 Council meetings and the MHAC meeting. Under the circumstances, the breach of the Procedural By-Law does not constitute a sufficient basis to interfere with the Decision.
[101] Blair Engaged submits that in reconsidering and approving Broccolini’s application so soon after it was refused demonstrates that Council acted in bad faith. In order to conclude that Council acted in bad faith, this Court must first find that there is no other rational conclusion than that a majority of Council was acting for an improper purpose or “unreasonably, arbitrarily and without the degree of fairness, openness and impartiality required of municipal government”: Grosvenor v. East Luther Grand Valley, 2007 ONCA 55, 84 O.R. (3d) 346 at para. 44.
[102] Council’s reconsideration of the application, in breach of the notice requirements under its own Procedural By-Law, raises concerns about the haste and lack of transparency with which the Decision was made. The record of the May 2022 meeting reflects a concern about litigation before the OLT. However, the record far from supports that there is no other rational conclusion than that a majority of Council was acting for an improper purpose or unreasonably, arbitrarily and without the degree of fairness, openness and impartiality required of municipal government.
[103] In this case, Cambridge breached the Procedural By-Law by failing to give proper notice of the motion to reconsider. The breach of the Procedural By-Law, however, does not rise to the level of illegality or bad faith. As a result, the application for judicial review must fail.
[104] Moreover, given the current status of the Broccolini project and our findings on the degree of mootness of the application for judicial review, the non-compliance with the Procedural By-Law would not constitute a sufficient basis for quashing the Decision.
Was the Heritage Permit Deemed Granted?
[105] In light of our conclusions above, it is not necessary to address this issue.
Conclusion
[106] The application for judicial review is dismissed.
[107] As Blair Engaged brought this application against the City as a public interest litigant, and we have found that the City breached its own by-law, we do not award any costs to the City. Broccolini, however, as the successful party, is entitled to its costs. We fix those costs at $20,000, all-inclusive, payable by Blair Engaged.
“Nishikawa J.”
“Leiper J.”
“Schabas J.”
Released: March 31, 2023
CITATION: Blair Engaged - Residents’ Association Inc. v. Corporation of the City of Cambridge, 2023 ONSC 1964
COURT FILE NO.: 22/133
DATE: 20230331
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
Nishikawa, Leiper, Schabas JJ.
Blair Engaged-Residents’ Association Inc.
Applicant
– and –
The Corporation of the City of Cambridge, Broccolini Real Estate Group (Ontario) Inc., 140 Old Mill Road GP Inc., 140 Old Mill Road Coinvest GP Inc., 140 Old Mill Road Limited Partnership and 140 Old Mill Road Coinvest Limited Partnership
Respondents
REASONS FOR JUDGMENT
Released: March 31, 2023