Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 23, 2022
CASE NO(S).: OLT-22-002000 (Formerly PL210288)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Angus Glen Landowners’ Group Inc.
Subject: Request to amend the Official Plan - Failure of the City of Markham to adopt the requested amendment
Existing Designation: “Future Neighbourhood Area” and “Greenway”
Proposed Designation: To establish the Angus Glen Secondary Plan
Purpose: To establish the Angus Glen Secondary Plan for the purpose of guiding the development of a proposed master-planned community to consist of 6,000 housing units with a population of 18,900 and to also provide policy direction with respect to matters related to the Greenway System, including direction with respect to road linkages and the location of parks and stormwater management facilities
Property Address/Description: 411 hectares (1,015.6 acres) of land bounded by Major Mackenzie Drive to the south, Elgin Mills Road to the north, Warden Avenue to the west and Kennedy Road to the east
Municipality: City of Markham
Approval Authority File No.: OP-17-130159
OLT Case No.: OLT-22-002000
Legacy Case No.: PL210288
OLT File No.: OLT-22-002000
Legacy File No.: PL210288
OLT Case Name: Angus Glen Landowners’ Group Inc. v. Markham (City)
Heard: January 10, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| City of Markham | R. Coburn, J. Lesage, F. Santaguida and V. Chai |
| Angus Glen Landowners Group Ltd. | I.T. Kagan and J. Kagan (Student-at-law) |
| Romandale Farms Ltd. | R. Northey, G. Reeder and M. McDermid |
| Regional Municipality of York | B. Ogunmefun and M. Mueller |
| York Region District School Board and York Catholic District School Board | B. Sully |
| Conseil Scolaire Viamonde | A. Platt, S. Lampert and A. Hu-Fonye (student-at-law) (in absentia) |
| Toronto Region Conservation Authority | B. Montgomery (in absentia) |
DECISION DELIVERED BY R.G.M. MAKUCH AND ORDER OF THE TRIBUNAL
INTRODUCTION
This decision determines a motion brought by Romandale Farms Ltd. (Romandale) for an Order of the Tribunal for various directions and findings related to this appeal.
1The Angus Glen Landowners’ Group (“LOG”) is a group of landowners who own approximately 85% of the lands in the Angus Glen Block, in the City of Markham. The LOG made an application to the City for an Official Plan Amendment (“OPA”) on or about November 18, 2017 to create a Secondary Plan for lands in the Angus Glen Block. The City deemed the application complete on November 24, 2017. The LOG appealed the Application to the Tribunal for non-decision in April 2021 pursuant to s. 22(7) of the Planning Act (“PA”). Romandale, a family owned company, owns lands in the Angus Glen Block but did not join in the LOG appeal. The Roman family has owned what it has referred to as the Home Farm lands since 1956, which totals 52 hectares (130 acres) on the south side of Elgin Mills, between Warden Avenue and Kennedy Road. The lands are undeveloped and consist of the Roman family home, open space, and agricultural fields and buildings. Romandale states that it has no plans to develop the Home Farm lands.
2The City is a statutory party to the Appeal and Romandale was granted party status by the Tribunal.
3The Tribunal has scheduled a hearing of the appeal to commence on Monday, January 9, 2023 and issued a Procedural Order governing this process in its decision dated November 22, 2021.
4The City began the planning process approximately a decade ago, for what was formerly known as the Future Urban Area (“FUA”). The FUA is composed of four separate Blocks located in north Markham: the Berczy Glen Block, the Angus Glen Block, the Robinson Glen Block, and the Employment Block, which also contains what is known as the Victoria Glen neighbourhood area. This planning exercise was comprehensive and was intended to guide the future development of the entirety of the FUA lands, which required the preparation of a Conceptual Master Plan (“CMP”). The City required that each of the Blocks in the FUA would have a Secondary Plan to guide development and future Planning Act (“PA”) approvals within the Block. The CMP included a conceptual community structure plan that would guide the development of the various Secondary Plans for the Blocks of the FUA. Secondary Plans for the Berczy Glen and Robinson Glen Blocks have been approved and incorporated into the City’s Official Plan. A Secondary Plan for the Victoria Glen portion of the Employment Block was recently adopted by City Council and is currently awaiting the Region’s approval.
5The conceptual community structure plan for the FUA shows that it will be serviced by two east-west collector roads. Romandale opposes the construction of a collector road on its property within the Angus Glen Block and has expressed this position to the City and the LOG throughout the Municipal Class Environmental Assessment (“MCEA”) public consultation process. The final location of the east-west collector roads have not yet been determined as of this date.
6A Class Environmental Assessment (“Class EA”) was also required for the transportation, water, and wastewater infrastructure required to service the FUA. The City implemented a Class EA in accordance with the MCEA Master Plan Approach. Phases 1 and 2 of the MCEA were completed by the City for the entire FUA. After the completion of Phase 2, the City delegated Phases 3 and 4 of the MCEA to various landowners’ groups within the different Blocks of the FUA. The LOG is currently completing Phases 3 and 4 of the MCEA for the Angus Glen Block and is responsible for filing a Notice of Completion once the process has been completed.
7Once a Notice of Completion has been issued, the Class EA is reviewed by the Ministry of the Environment, Conservation and Parks (“MECP”) staff for compliance with the MCEA. The Minister may order the proponent to comply with the provisions of Part II of the Environmental Assessment Act (“EAA”) and conduct an individual environmental assessment of the project before proceeding with the proposed undertaking, or may, by order, impose conditions on the undertaking in addition to the conditions that were imposed upon the approval of the Class EA. Notices of Completion have been issued for the other residential Blocks in the FUA on the following dates:
Glen Block – September 30, 2020. This was subsequent to the Berczy Glen Secondary Plan being approved (July 25, 2019).
Robinson Glen Block – December 17, 2020. This was subsequent to the Robinson Glen Secondary Plan being approved (July 25, 2019).
Victoria Glen Block – December 17, 2020. This was prior to the Victoria Glen Secondary Plan being forwarded to the Region for approval (November 19, 2021).
8Phases 3 and 4 of the MCEA for the Angus Glen Block are not yet complete. LOG has advised the City that Phases 3 and 4 of the MCEA for Angus Glen Block are anticipated to be completed and the Environmental Study Report is anticipated to be filed with the City in approximately March 2022.
9After the approval of the MCEA by the Minister, other approvals may be required prior to beginning construction of infrastructure within the Block. It is anticipated, though not certain, that a permit under the ESA will be required before the proposed east-west collector road in Angus Glen Block can be constructed.
10Romandale brought an Application for Judicial Review against the City subsequent to the completion of Phases 1 and 2 of the MCEA. The Divisional Court dismissed the Application in its decision dated June 11, 2021. Romandale has sought leave to appeal the Divisional Court Decision to the Ontario Court of Appeal. The Court of Appeal has not as of this date rendered a decision on this leave application.
MOTION BY ROMANDALE FARMS LTD.
11The Materials before the Tribunal on this Motion are the following:
a) Romandale Farms Ltd. Motion Record dated November 30, 2021 including the affidavits of Al Shaw, Nichole McDonald, Nick Palumbo and Robert J. Forhan all sworn on November 30, 2021;
b) Romandale Farms Ltd. Book of Authorities dated November 30, 2021;
c) Romandale Farms Ltd Additional Book of Authorities dated December 7, 2021;
d) Angus Glen Landowners Group Ltd. Responding Motion Record dated December 17, 2021 including the affidavits of Donald F. Given and Ian Dobrindt, both sworn on December 16, 2021;
e) Notice of Response by City of Markham dated December 17, 2021;
f) City of Markham and Anguis Glen Landowners Group Inc. Joint Book of Authorities dated December 17, 2021;
g) Romandale Farms Ltd. Reply dated January 4, 2022, including the affidavits of Al Shaw, sworn December 23, 2021, the affidavit of Larissa Parker, sworn January 3, 2022 and the Book of Authorities dated January 4, 2022;
h) City of Markham Factum dated January 6, 2022;
i) City of Markham Supplemental Book of Authorities dated January 2022;
j) Angus Glen Landowners Group Ltd. Supplemental Book of Authorities dated January 6, 2022; and
k) Romandale Farms Ltd. Factum dated January 10, 2022.
12Romandale brings a Motion for an order of the Tribunal:
that it is unlawful for this Tribunal to proceed with this appeal of the proposed official plan amendment for the Angus Glen Block unless and until there is a lawfully completed Municipal Class Environmental Assessment of the road network proposed to be located in the area subject to this official plan amendment;
that the proposed road network that is before this Tribunal as part of the OPA for the Angus Glen Block is subject to the distinct requirements of not just the Planning Act and the Municipal Class Environmental Assessment, but also (i) the Greenbelt Act, 2005, and the Greenbelt Plans (2005, 2017), and (ii) the Endangered Species Act, including its prohibition against damage to the habitat of endangered species; and
that it is premature to proceed further with this appeal as there is on-going litigation against the City that challenges the City’s 2017 decision giving rise to the proposed official plan amendment for the Angus Glen Block, for failure to consider or address applicable law for proposed municipal roads that cross through the Greenbelt and endangered species habitat.
13Counsel for Romandale in his oral submissions, now asks the Tribunal to accept the Landowners schedule of providing a completed Environmental Assessment (“EA”) by March 2022, but to go further by ordering that this completed Class EA must set out the final alignment for all new collector roads in the Angus Glen Block, including any proposed major east-west collector road through the provincially protected Greenbelt that Romandale anticipates will be on its Home Farm and through nine key ecological features, including endangered species habitat.
Grounds for the Motion
14Romandale’s grounds in support of this Motion are as follows:
(1) The City undertook to the Divisional Court earlier this year that this Tribunal would be able to review the final alignments for the collector roads in the context of the Official Plan Amendment with respect to the Angus Glen Block;
(2) The Divisional Court accepted this undertaking and declined to rule on Romandale’s judicial review application over the class environmental assessment, dismissing it as premature;
(3) Prima facie – any new road across the Greenbelt and significant natural features raises serious legal and planning issues that cannot be ignored;
(4) Common sense and first principles require a process that addresses constraints first, infrastructure second, and planning third – not the other way around; and
(5) 2020 amendments to the EAA prohibit the issuance of authorizations unless and until the proponent is authorized to proceed with the undertaking under an approved class environmental assessment, such as the MCEA.
15Romandale’s motion materials set out extensive evidence relating to the key ecological features located within the Angus Glen block, which it argues must be protected from development including the construction of roads and other infrastructure.
Environmental Assessment Act
16Counsel argues that the 2020 amendments to the EAA introduced s. 15.1.2(2), which expressly addresses the relationship between a Class EA (such as the Municipal Class Environmental Assessment) and other approvals such as the proposed Official Plan Amendment) that deal with the same undertaking (in this case, a collector road network) apply as of July 2020 where an undertaking (such as this proposed municipal road system) is subject to the MCEA. Sections 15.1.2(1) and (2) of the EAA reads as follows:
Activities permitted before authorization to proceed
15.1.2 (1) Before a proponent is authorized to proceed with an undertaking referred to in section 15, a person may,
(a) take any action in connection with the undertaking that may be necessary to comply with this Act;
(b) acquire property or rights in property in connection with the undertaking;
(c) prepare a feasibility study and engage in research in connection with the undertaking; or
(d) establish a reserve fund or another financing mechanism in connection with the undertaking. 2020, c. 18, Sched. 6, s. 21 (1).
Restriction on issuing certain documents
(2) No person shall issue a document evidencing that an authorization required at law to proceed with the undertaking has been given until the proponent is authorized to proceed with the undertaking under an approved class environmental assessment. 2020, c. 18, Sched. 6, s. 21 (1).
17Mr. Northey argues that new draft policies 7.1.1.2 – 7.1.1.5, set out in the LOG proposed OPA, seek to have this Tribunal defer the ultimate location of roads in the Angus Glen Block to a future decision by LOG through either the MCEA or some other future process in contravention of the EAA. He further argues that section 15.1.2(2) of the EAA prohibits any person – including this Tribunal – from approving an undertaking that is subject to an approved Class EA – including a MCEA – and from issuing any approval that is required to proceed with the undertaking – including new local collector roads - unless and until the proponent is allowed to proceed under the approved Class EA .
18He also maintains that the new section 15.1.2(2) referred to above for Class EA echoes a longstanding principle applicable to individual environmental assessments since the passage of the EAA in 1975 and that from 1975 to 1996, the applicable provision read as follows:
6.(1) Where a proponent is required under this Act to submit to the Minister an environmental assessment of an undertaking,
(a) a licence, permit, approval, permission or consent that is required under any statute, regulation, by-law or other requirement of the Province of Ontario, an agency thereof, a municipality or a regulatory authority, in order to proceed with the undertaking shall not be issued or granted; and
(b) if it is intended that the Province of Ontario or any agency thereof will provide a loan, a guarantee of repayment of a loan, a grant or a subsidy with respect to the undertaking, the loan, guarantee, grant or subsidy shall not be approved, made or given, unless,
(c) the environmental assessment has been submitted to and accepted by the Minister; and
(d) the Minister has given approval to proceed with the undertaking.”
19Mr. Northey relies on a 1981 decision of the Ontario Superior Court (Johnson v. Milton (Town)) (No. 2) 1981 CarswellOnt 477), which he argues provides an interpretation of section 6 at page 8:
…[T]hat a proponent including a municipality that initiates an undertaking within the meaning of the Act is precluded, both according to the wording and to the spirit of that section, from seeking and being granted a change in the official plan and/or zoning by-law unless there is prior compliance with clauses (c) and (d) of subs. (1) of s. 6.
20He further maintains that from 1996 to the present, section 12.2(2) within Part II of the EAA for individual environmental assessments read as follows:
(2) No person shall issue a document evidencing that an authorization required at law to proceed with the undertaking has been given until the proponent receives approval under this Act to proceed with the undertaking.
and that in 2017, the Environmental Review Tribunal (“ERA”) held in Iburg v. Ontario (Director, Ministry of the Environment) 2012 CarswellOnt 1227 that the prohibition under section 12.2(2) is to prohibit actions to carry out or authorize an undertaking under other statutes until Ministerial approval under the EAA is given.
21In sum, Mr. Northey maintains that under section 15.1.2(2) of the EAA, it is not open to this Tribunal to approve the “transportation system servicing the Angus Glen Secondary Plan Area” (s. 7.1.1.2), and defer the ultimate location of new collector roads to a future decision by others, including the Angus Glen Landowners Group under the MCEA, and he submits that this is contrary to requirements under the EAA. The MCEA that must be lawfully completed includes: (i) the Phase 1 and Phase 2 EA of proposed roads across the entire FUA that was carried out by the City of Markham; and (ii) the Phase 3 and Phase 4 EA of proposed roads across the Angus Glen Block that the City delegated to landowners such as the LOG in 2017.
22It is argued that these questions are relevant to this hearing as the LOG are asking this Tribunal to approve a new road network across the Angus Glen Block that includes two new collector road crossings notwithstanding that there are several laws and policies that apply to any proposed east-west crossing of the Greenbelt in the Angus Glen Block. Of significance is the fact that several features run north-south through the entirety of this Block, including the Greenbelt’s Protected Countryside, Natural Heritage System, key natural heritage features such as Redside Dace endangered species habitat, provincially significant wetlands, fish habitat and permanent and intermittent streams. Similarly, any future crossing will contravene the Endangered Species Act (“ESA”) prohibition against causing damage to the habitat of the endangered Redside Dace.
Endangered Species Act
23With respect to the ESA, counsel refers to Section 9, which prohibits killing, harming, harassing or taking individuals of an endangered species and to section 10, which prohibits damage or destruction of habitat. Under Section 17, the Minister may issue a permit allowing actions that would otherwise be prohibited. Given the presence of endangered species and their habitat on the Home Farm, the City’s proposed four-lane collector road cannot be built without a permit issued by the Minister.
24Before the Minister can grant a permit under section 17(2)(c) or (d), a multi-prong test must be met. The branch of the test at issue, in this application, is the same in both subsections.
25In particular, the Minister must be of the opinion that “reasonable” alternatives have been considered, including alternatives that “would not adversely affect” the species and that the best alternative has been adopted (Best Alternative Test):
the Minister is of the opinion that reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted” (s. 17(2)(c)(ii) and 17(2)(d)(iv)).
26Romandale submits that for this Tribunal to address the two requirements provided by the Divisional Court to determine and contain the final alignment of future collector roads in the Angus Glen Block, it must be able to satisfy itself that there is information before it that could satisfy the requirements of the ESA.
Ongoing Litigation
27Counsel for Romandale argues that it is premature to schedule this hearing as there is ongoing litigation by Romandale against the City, which seeks to set aside the City’s 2017 decision to endorse the CMP and CSP referred to above, which gave rise to the official plan amendment applications that include the proposed OPA before this Tribunal for approval.
28Romandale’s position is that the City’s 2017 Conceptual Master Plan and 2018 Environmental Assessment are illegal for failing:
a. to conform to or consider the applicable tests set out in the Greenbelt Plan to restrict new infrastructure in and across the Greenbelt,
b. to meet Municipal Class Environmental Assessment requirements by not assessing any road system that did not cross the Greenbelt, and
c. to meet the requirements of the Endangered Species Act by planning roads across endangered species habitat without regard to this Act’s requirement there can be no approval of activity through endangered species habitat unless the applicant considers alternatives that do not cross the habitat and demonstrates that crossing the habitat is preferred. The proposed road across Romandale land will trigger this test because it crosses the habitat of endangered bats and endangered fish (Redside Dace).
29This litigation is relevant to this case since LOG is aware of this litigation as it initiated this appeal after the Divisional Court rendered its decision and LOG’s Notice of Appeal in this case asserts that the official plan amendment sought is consistent with the City’s 2017 CSP.
30The Divisional Court declined to address the merits of Romandale’s case and ruled that the case was premature on the basis of reasons that include (a) the MCEA is on-going, not completed, and (b) the availability of a hearing before this Tribunal that can address Romandale’s legal issues with the proposed road across its lands.
31Romandale has sought leave to appeal this decision to the Ontario Court of Appeal on the basis of legal errors with the Divisional Court’s reasons involving the EAA and concern whether this Tribunal is able to fully address Romandale’s legal issues with the proposed road across its lands. Counsel states that a decision on its leave application is expected and the outcome of this court appeal on the merits may render this appeal moot.
Romandale Request
32Based on LOG’s anticipation that the Class EA will completed by March 2022, Romandale seeks an order:
that the Landowners will provide a completed Class EA that determines the final alignment of the collector roads within the Angus Glen Block, including all east-west collector roads by March 2022;
that that the proposed road network that is before this Tribunal as part of the Official Plan Amendment for the Angus Glen Block is subject to the distinct requirements of not just the Planning Act and the Municipal Class Environmental Assessment, but also (i) the Greenbelt Act, 2005, and the Greenbelt Plans (2005, 2017), and (ii) the Endangered Species Act, including its prohibition against damage to the habitat of endangered species; and
that it is premature to proceed further with this appeal as there is on-going litigation against the City that challenges the City’s 2017 decision giving rise to the proposed official plan amendment for the Angus Glen Block, for failure to consider or address applicable law for proposed municipal roads that cross through the Greenbelt and endangered species habitat.
ANALYSIS AND FINDINGS
33The Tribunal finds that Romandale’s Motion, which essentially seeks to adjourn a scheduled hearing of a PA appeal pending the completion of ongoing processes, including, a MCEA, a potential permitting process under the ESA and ongoing litigation between Romandale and the City, should be dismissed as these ongoing processes do not constitute valid reasons to delay the hearing that is scheduled to commence in January 2023.
34This Tribunal, and its predecessor Tribunals, have consistently held on motions similar to the motion herein that there is no basis to adjourn a PA hearing because other processes, including an EA and other permitting processes, were ongoing. The Tribunal has a statutory requirement to deal with any appeals that are made under the PA and the parties to such appeal are entitled to a decision on the planning instruments that are under appeal. In Kimvar Enterprises Inc. v Simcoe (County) 2007 CarswellOnt 8320, 58 O.M.B.R. 426, the Ontario Municipal Board (“OMB”), in a case involving appeals of an OPA and ZBA by a land owner, adjoining landowners opposed to the applications brought a motion to adjourn the hearing for several reasons, including the need for the project to obtain approvals under the Fisheries Act and the Navigable Waters Protection Act, and because an EA had not been concluded. The Board found that the necessity for approvals under legislation other than the PA, which guides the Board, is not a basis upon which to adjourn the hearing and that the Board was statutorily required to deal with any appeals that are made under the PA. The Board further found that many projects require approvals under legislation other than the PA and that an Applicant is required during the planning process to satisfy all regulatory requirements, regardless of the timing of the Board's hearing.
35In this case, the Secondary Plan proposed seeks to advance the development approvals for greenfield lands, which have been included in the urban settlement area for approximately a decade. The Tribunal should only adjourn such a hearing where there are compelling reasons to do so. There are no such compelling reasons in this case.
36Though an EA or Class EA may involve similar issues to planning grounds raised in a PA appeal, the questions that the Tribunal must consider on such an appeal relate to provisions of the relevant planning documents passed pursuant to the PA, or provisions of the in-force provincial plans and policies. An EA or Class EA process does not affect the planning grounds, which the Tribunal must consider on this appeal. The lack of a completed EA or Class EA does not mean that the Tribunal has insufficient information to proceed to a hearing. The Tribunal should not assess in advance of a hearing, whether the evidence to be presented in support of the proposal is sufficient or insufficient to convince it to issue a planning approval.
37This reasoning is consistent with the decision of the OMB in Victoria Point Homes Inc. v. Orillia (City)1998 CarswellOnt3196, 29,C.E.L.R. (N.S.) 94, 36 O.M.B.R. 254, where adjoining landowners made a similar argument that the proposal was premature and did not represent good planning because additional approvals and/or further studies were required. The Board refused to adjourn the hearing finding that there were no compelling legal or planning reasons to do so.
38The Tribunal agrees with the submissions of counsel for LOG and the City and specifically rejects Romandale’s argument that section 15.1.2(2) of the EA is applicable in this case. Section 15.1.2(2) applies to Class EAs, but an equivalent section, 12.2(2), which applies to individual EAs, has existed since 1996 and has not affected the Tribunal’s treatment of motions to adjourn when an EA is ongoing.
39The Iburg case relied upon by Romandale, dealt with an operating approval and not an OPA. The Certificate of Approval granted by the Director in that case permitted the construction and operation of a waste processing facility. In contrast, the current application before the Tribunal, if approved by the Tribunal, will not permit the construction of collector roads in the Angus Glen Block until the completion of the MCEA process and all necessary approvals have been granted.
40The Johnson case reviews an earlier version of the EAA, which contained a section with language that differs in key ways from sections15.1.2(2) and 12.2(2) of the current EAA. The decision refers to section 6(1), which prohibits granting “a license, permit, approval, permission, or consent” to proceed with the undertaking. Sections 15.1.2(2) and 12.2(2) of the current EAA are much narrower and only prevent the issuance of “a document evidencing that an authorization required at law” to proceed with an undertaking, which does not encompass the OPA currently before the Tribunal. Furthermore, the Court of Appeal found that the by-laws passed by the Town of Milton could not be said to have issued or granted an ‘approval, permission or consent in contravention of s. 6(1) of the PA. Any decision by the Tribunal in this case, following a hearing of this appeal, also could not be interpreted to be a document evidencing that an authorization required at law to proceed with the undertaking has been given. The Tribunal’s decision in this Appeal will determine whether or not the LOG’s Application for an OPA should be approved in its current form, or whether it should be modified, or rejected. Should a Secondary Plan for Angus Glen Block be in place after the decision resulting from the Appeal hearing, it will not authorize any party to proceed with an undertaking, including the construction of a collector road in Angus Glen Block. The effect of an approved Secondary Plan will be to guide future development within the Block, including future approval processes for zoning by-law amendments, site plans, severances, or plans of subdivision. Should any undertaking within the block require an authorization at law to proceed, including a potential permit under the ESA, this procedure would be followed in the normal course and will not be affected by the existence of an approved Secondary Plan on the Angus Glen Block.
41The Tribunal finds that there is no basis to adjourn the appeal hearing until the MCEA for Angus Glen Block is complete as there is no requirement that an EA, or Class EA, be completed before a determination can be made as to whether a proposal constitutes good planning. The history of previous Secondary Plan approvals in the FUA demonstrates that there is no legal impediment to an OPA being approved prior to the completion of a Class EA. The Secondary Plans for the Berczy Glen and Robinson Glen Blocks were completed and approved by the City prior to the completion of the MCEA for the infrastructure within those Blocks.
42The LOG has advised that Phases 3 and 4 of the MCEA for Angus Glen Block are anticipated to be completed, and the Environmental Study Report is anticipated to be filed with the City, in approximately March 2022. If no Order or notice of proposed order is made by the Minister within 30 days of the end of the comment period, then the MCEA will be complete. It seems that there is a high likelihood that the MCEA will be finalized well before the hearing of the Appeal. The Tribunal notes however that whether or not it is completed will ultimately have no bearing on the questions the Tribunal must consider.
43The Tribunal finds that there is no basis to adjourn this appeal hearing due to potential permitting requirements under the ESA. The Tribunal rejects Romandale’s submission, that the collector road undertaking, should satisfy the requirements of the ESA before any approval of the Secondary Plan. The Tribunal has no jurisdiction to make such a ruling given that the ESA specifies that such a decision is made by the Minister of Environment, Conservation and Parks. The application for a permit under the ESA requires a level of specific detail about the undertaking, so any application for a permit will only occur once the Phases 3 and 4 of the MCEA for Angus Glen Block have been completed.
44There is no requirement under the PA that a permit under the ESA must be granted before the Tribunal can issue a decision in a PA appeal. There is similarly no requirement that the Tribunal determine whether the permit could be granted prior to issuing a decision. The Secondary Plan under appeal sets out a conceptual collector road network that, if approved by the Tribunal, will be finalized through further planning approvals. The ESA permitting process will also allow for potential further refinements to the collector road’s route to avoid certain impacts on endangered species or their habitat.
45In the case, where Romandale disagrees with a decision made on an ESA permit, its remedy would be to seek judicial review of the Minister’s decision respecting the permit. The ESA permitting process is completely separate from the current appeal under the PA, and is not justification for adjourning the hearing scheduled for January 2023.
46The Tribunal finds that there is no basis to adjourn the hearing until Romandale’s ongoing litigation against the City, which consists of the application for judicial review following the completion of Phases 1 and 2 of the MCEA. The Divisional Court Decision dismissed Romandale’s application on the basis of prematurity. Romandale has brought a motion for leave to appeal to the Ontario Court of Appeal. It is noted that the Divisional Court Decision is a final decision that is still in effect and that Romandale’s motion for leave to appeal did not stay the Divisional Court decision. Romandale did not seek an Order for such a stay. The Tribunal finds that it would not be reasonable to adjourn this appeal hearing on the mere possibility that leave to appeal may be granted. It is also noted that the Divisional Court Decision’s dismissal of Romandale’s application for judicial review was made without prejudice to Romandale’s right to bring an application for judicial review in the future upon the full completion of the MCEA for the Angus Glen Block.
47In any event, even if Romandale was ultimately successful in its judicial review application against the City, the outcome of the proceeding would still have no bearing on the question that is before the Tribunal as a complete MCEA is not required before a municipality or the Tribunal can approve a Secondary Plan pursuant to the PA.
48The Divisional Court found that it would be premature for it to entertain the application for judicial review for two reasons: (i) the final alignment of the collector road has not yet been determined; and (ii) there are no exceptional circumstances that would justify the court interfering with the ongoing administrative processes under the PA until those processes are complete. The Court noted that at the time, the secondary plan process was not yet underway.
49The Tribunal’s powers allow it to control its proceedings and under the Ontario Land Tribunal Act, the Tribunal may, in respect of each proceeding before it, adopt any practices and procedures that offer the best opportunity for a fair, just, and expeditious resolution of the merits of the proceedings. This is reflected in Rule 22.3 of the Tribunal’s Rules of Practice and Procedure, which states that the Tribunal may establish and direct the procedure at a hearing in order to ensure the issues in dispute are disposed of in the most fair, just, expeditious, and cost-effective manner.
ORDER
50Accordingly, the Tribunal orders that the Motion is hereby dismissed.
“R.G.M. Makuch”
R.G.M. MAKUCH
VICE-CHAIR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.