DATE: 20021213

DOCKET: C38240

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., LASKIN and BORINS JJ.A.

B E T W E E N:

THE CORPORATION OF THE CITY OF LONDON

James P. Barber and Lynn P. Marshall, for the appellant

Appellant

Alan R. Patton and Steven S.D. Ross, for the respondents

• and -

Leslie McIntosh, AYERSWOOD DEVELOPMENT CORP. and A.H. GRAAT, JR.

for the intervener, Ontario Municipal Board

Respondents

Heard: November 20, 2002

On appeal from the order of the Divisional Court dated January 30, 2002, reported at [2002] O.J. No. 400.

BY THE COURT:

[1] The primary question raised by this appeal is the extent to which parties to an Ontario Municipal Board (the “Board”) hearing are entitled to be given notice of the specific relief being considered and ultimately granted by the Board.

[2] The respondents applied to the City of London (the “City”) for the necessary amendments to the Official Plan and to the relevant zoning by-law to permit the construction of two twelve-storey apartment buildings on land owned by the respondent, Graat. At the same time, the respondents also submitted a site plan to the City for approval. When the City failed to address the applications within the required time periods, the respondents appealed to the Ontario Municipal Board pursuant to ss. 22(7), 34(11) and 41(12) of the Planning Act, R.S.O. 1990, c. P.13.

[3] By a decision issued on February 1, 2001, the Board allowed the appeal in part and approved amendments to the Official Plan and the zoning by-law that would permit the construction of one twelve-storey building within the area on which the two buildings were to be constructed. The Board directed that the respondents prepare a new site plan reflecting one twelve-storey building and further directed that its final order would not issue until the revised site plan was approved by the City and was forwarded to the Board for approval.

[4] The City appealed to the Divisional Court. By order dated January 30, 2002, the Divisional Court dismissed the appeal. This is an appeal, with leave, from the decision of the Divisional Court. In this court, the City raises essentially the same grounds of appeal as it did in the Divisional Court.

[5] We agree with the conclusions reached by the Divisional Court for dismissing the City’s appeal and in general terms we also agree with its reasons for doing so. We wish to address only two points.

[6] The first relates to the standard of review. The Divisional Court noted that the Board is a specialized tribunal and that its decisions are protected by the privative clause found in s. 96(4) of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 (the OMBA). As a result, the Divisional Court concluded that the standard of review was one of patent unreasonableness.

[7] In our view, the Divisional Court erred in its conclusion as to the appropriate standard of review. The matter came before the Divisional Court by way of an appeal under s. 96(1) of the OMBA, which provides for an appeal from the Board to the Divisional Court, with leave, on a question of law. The proper standard of review was one of either correctness or reasonableness, depending on the nature of the particular question of law. Questions of law that engage the specialized expertise of the Board, such as the interpretation of its own statute, attract a standard of reasonableness. Questions of law that are of general application for which the Board has no special expertise are reviewed on a standard of correctness. See for example: Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, 209 D.L.R. (4th) 1 at para. 61. The proceeding before the Divisional Court was not a judicial review and the privative clause in s. 96(4) of the OMBA, therefore, had no application.

[8] Despite the Divisional Court’s error in setting out the standard of review, we are satisfied that the Divisional Court correctly addressed each of the grounds of appeal and that its reasons for dismissing those grounds do not depend on an erroneous application of the standard of review. Moreover, when applying the correct standard, we come to the same conclusions as the Divisional Court.

[9] The second issue that we wish to address relates to the City’s contention that the Board erred in failing to provide it with the opportunity to be heard with respect to the one-building concept, which the Board approved in its decision of February 1, 2001. This argument is framed as one of a denial of natural justice.

[10] When considering an allegation of a denial of natural justice, a court need not engage in an assessment of the appropriate standard of review. Rather, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly. See Moreau-Bérubé, supra, at paras. 74-75.

[11] The thrust of the City’s argument is that it did not have notice that the Board might consider and ultimately approve a one-building project and that had it had notice, it would have called evidence and made submissions opposing such a proposal. More specifically, the City contends that the rules of natural justice required the Board to ensure the City had notice that the Board might consider approving the construction of one building when the application before the Board contemplated the construction of two buildings. The City’s complaint is confined to a lack of notice. The City does not suggest that the Board prevented it from calling evidence or making submissions.

[12] The Divisional Court rejected this argument and held that there was no denial of natural justice. In addition to the reasons given by the Divisional Court, we add the following three comments.

[13] First, we are satisfied that the appellant had adequate notice that the Board might consider and approve a project involving something less than the construction of two twelve-storey buildings. Section 88 of the OMBA gives the Board broad powers, on an application, to grant not only the relief sought, but also such other relief that seems just and fair. The section reads as follows:

Upon any application to the Board, the Board may make an order granting the whole, or part only, of the application, or may grant such further or other relief in addition to, or in substitution for, that applied for as to the Board may appear just and proper as fully in all respects as if the application had been for such partial, other, or further relief [emphasis added].

[14] The City, which was represented by counsel at the hearing before the Board, can be taken to have known of the authority of the Board under s. 88. Moreover, it was not unreasonable for the parties to expect that the Board might grant partial relief on an application of this nature. The relief granted by the Board was, in effect, included within the broader relief sought by the respondents. In the circumstances, we do not accept the appellant’s contention that the Board violated its right to have notice that the Board might make the specific order that it ultimately made.

[15] Second, given the evidence that was called at the hearing, we are not persuaded that there has been any unfairness to the City. The City’s position throughout the hearing was that the Board should not permit the construction of any apartment building on the subject land. The land, the City argued, should continue to be zoned as open space as it had been for many years. In support of its position, the City called extensive evidence pointing to the negative impact that would result from the construction of two twelve-storey apartment buildings and indicating as well the advantages that would flow from maintaining the zoning as open space. The City’s position was not that some development, with proper protective measures, would be appropriate, but that there should be no high density residential development whatsoever.

[16] The respondents called evidence supporting their application for two buildings. The Board carefully weighed the evidence called by the parties and accepted the respondents’ position that a high density residential designation is appropriate and desirable for the site. In doing so, the Board specifically rejected the City’s contention that the entire site should remain zoned as open space. However, the Board also held that the construction of two buildings would have certain negative impacts, but that one twelve-storey building with 165 units would be appropriate, provided certain protective measures were adopted. It then ordered that those measures be implemented.

[17] While it is correct that neither party specifically addressed the one-building approach either in evidence or in submissions, it was open to them to do so. As we pointed out above, the City knew or should have known that the Board could consider and approve the construction of something less than the two buildings proposed by the respondents. In any event, it seems likely that had the City chosen to address the construction of only one building, its evidence and position would have been substantially the same as it was in opposing the two building concept: the construction of any apartment building on the site is undesirable.

[18] Finally, we note that the City and the adjoining neighbours will have an opportunity to comment on the revised site plan showing one apartment building. Instead of issuing a final order, the Board directed that the respondents prepare a new site plan and present it to the City for approval. In doing so, the Board specifically directed that the neighbours be involved in the site plan approval process. This process should provide the City and the neighbours with an opportunity to be heard on specific issues emerging from the new site plan, subject, of course, to the Board’s decision that the construction of one twelve-storey building on the site has been approved.

[19] The appeal is therefore dismissed. The City shall pay the respondents’ costs in the amount of $10,000. There will be no costs payable to the intervener.

RELEASED: “DOC” “DEC 13 2002”

“Dennis O’Connor A.C.J.O.”

“John Laskin J.A.”

“S. Borins J.A.”