Country Pork Ltd. v. The Corporation of the Township of Ashfield et al. [Indexed as: Country Pork Ltd. v. Ashfield (Township)]
60 O.R. (3d) 529
[2002] O.J. No. 2975
2002 41578
Docket No. C36040
Court of Appeal for Ontario,
Catzman, Doherty and Borins JJ.A.
July 29, 2002
Appeal -- Jurisdiction -- Court of Appeal -- Divisional Court -- Motion pursuant to s. 136 of the Municipal Act to Superior Court to quash by-law combined with appeal pursuant to s. 25 of the Building Code Act of decision of Chief Building Official refusing to issue building permit -- Dismissal of motion to quash by-law being a final order appealable to the Court of Appeal -- Dismissal of appeal under the Building Code Act appealable to the Divisional Court -- Court of Appeal having jurisdiction to hear both appeals pursuant to s. 6(2) of the Courts of Justice Act -- Municipal Act, R.S.O. 1990, c. M.45, s. 136 -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6 -- Building Code Act, R.S.O. 1992, S.O. 1992, c. 23, ss. 25, 26.
Municipal law -- Building permits -- Appeals -- Jurisdiction -- Court of Appeal -- Divisional Court -- Motion pursuant to s. 136 of the Municipal Act to Superior Court to quash by-law combined with appeal pursuant to s. 25 of the Building Code Act of decision of Chief Building Official refusing to issue building permit -- Dismissal of motion to quash by-law being a final order appealable to the Court of Appeal -- Dismissal of appeal under the Building Code Act appealable to the Divisional Court -- Court of Appeal having jurisdiction to hear both appeals pursuant to s. 6(2) of the Courts of Justice Act -- Municipal Act, R.S.O. 1990, c. M.45, s. 136 -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6 -- Building Code Act, R.S.O. 1992, S.O. 1992, c. 23, ss. 25, 26.
Municipal law -- By-laws -- Interim control by-law -- Application to quash -- Concurrent jurisdiction of Ontario Municipal Board and Superior Court of Justice with respect to by-laws -- An applicant attacking by-law not having unfettered choice between appeal to Ontario Municipal Board and application to court to quash by-law -- Court having limited supervisory jurisdiction to quash all or part of a by-law where it has determined that the by-law is illegal -- Ontario Municipal Board having jurisdiction with respect to planning merits -- Court must exercise discretion whether or not to defer to Ontario Municipal Board -- Municipal Act, R.S.O. 1990, c. M.45, s. 136 -- Planning Act, R.S.O. 1990, c. P.13, ss. 34(26), 38, 71 -- Ontario Municipal Board Act, R.S.O. 1990, c. O.28, ss. 36, 57, 96.
Planning -- Interim control by-law -- Application to quash -- Concurrent jurisdiction of Ontario Municipal Board and Superior Court of Justice with respect to by-laws -- An applicant attacking by-law not having unfettered choice between appeal to Ontario Municipal Board and application to court to quash by- law -- Court having limited supervisory jurisdiction to quash all or part of a by-law where it has determined that the by-law is illegal -- Ontario Municipal Board having jurisdiction with respect to planning merits -- Court must exercise discretion whether or not to defer to Ontario Municipal Board -- Municipal Act, R.S.O. 1990, c. M.45, s. 136 -- Planning Act, R.S.O. 1990, c. P.13, ss. 34(26), 38, 71 [page530] -- Ontario Municipal Board Act, R.S.O. 1990, c. O.28, ss. 36, 57, 96 -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6 -- Building Code Act, R.S.O. 1992, S.O. 1992, c. 23, ss. 25, 26.
On June 16, 2000, one day after Country Pork Ltd. had acquired a large farm in the Township of Ashfield for an 800- head hog farm operation, it submitted to the Chief Building Official an unsigned application for a building permit for the construction of a barn and an open liquid manure storage facility. Country Pork contended that the Township then deliberately delayed processing the permit application and made demands for additional materials not required by the governing legislation. The building permit application came to the attention of the Township Council and, on June 26, 2000, it passed Interim Control By-law No. 14-2000, which precluded the establishment of a livestock facility with a capacity of 100 livestock or greater. On June 27, 2000, the Chief Building Official refused the building permit application. On June 28, Country Pork signed the application for the permit.
Pursuant to the Planning Act, Country Pork appealed the interim control by-law to the Ontario Municipal Board ("OMB") and, pursuant to the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 ("FFPPA"), it appealed to the Normal Farm Practices Protection Board. These appeals were adjourned. Country Pork applied to the Superior Court of Justice for an order quashing the interim control by-law and for an order directing the Chief Building Official to issue a building permit. The parties did not raise the issue of the motion judge's discretion about whether or not to assume jurisdiction to quash the by-law given the concurrent jurisdiction of the OMB and the court. On the merits, Country Pork submitted that its application for a building permit had crystallized before the enactment of the interim control by-law. Alternatively, it attacked the legality of the by-law on the grounds that it was enacted in bad faith and without procedural fairness and was contrary to the Township's Official Plan and s. 6(1) of the FFPPA. The application was dismissed, and Country Pork appealed to the Court of Appeal. During the course of argument, the Court of Appeal questioned what jurisdiction the Superior Court had to hear the applications and its own jurisdiction to hear the appeal.
Held, the appeal of the refusal to issue the building permit should be dismissed, and the application to quash the by-law should be remitted to the motions judge.
Under s. 25(1) of the Building Code Act, the appeal from the Township's refusal to issue the building permit was to the Divisional Court. The parties' submission that, pursuant to s. 6(1)(b) of the Courts of Justice Act ("CJA"), the Court of Appeal had jurisdiction to hear this appeal because the appeal of the dismissal of the application to quash the interim control by-law under s. 136 of the Municipal Act was correct. The application judge's order refusing to quash the interim control by-law was a final order within the meaning of s. 6(1) (b) of the CJA and an appeal lies with the Court of Appeal. Consequently, under s. 6(2) of the CJA, the Court of Appeal had jurisdiction to hear the dismissal of the appeal of the building permit application. This appeal, however, should be dismissed. The application judge carefully reviewed the evidence and she made no legal or palpable or overriding error in concluding that Country Pork was not entitled to a building permit.
The Court of Appeal should not decide the merits of the appeal from the application to quash the by-law. The parties misread the Court of Appeal's decision in Equity Waste Management of Canada v. Halton Hills (Town) as giving an applicant a choice of forum in which to attack an interim control by-law, rather than as a concurrent forum case which holds that in appropriate circumstances the court and the OMB have concurrent jurisdiction to determine the validity of the by-law, provided that the court expressly exercises its discretion on proper grounds to [page531] decline deference to the jurisdiction of the OMB. In the immediate case, had the motions judge been asked to assume jurisdiction, she would have had to consider the nature of the attack on the interim control by-law, as well as the legislative scheme for appeals from municipal planning decisions contained in the Planning Act. With respect to an attack on the by-law, s. 136 of the Municipal Act provides the court with a limited supervisory jurisdiction to quash all or part of a by-law where it has determined that the by-law is illegal. Section 136(1) is not a vehicle for consideration of the merits of a municipality's decision to pass the by-law, or whether it conforms to proper municipal planning principles. That the OMB is the forum for determining a merit-based attack on a municipal by-law is confirmed by s. 36 of the Ontario Municipal Board Act that provides the OMB with exclusive jurisdiction in relation to such matters. In cases where the court is asked to assume jurisdiction over matters that the legislature has assigned to administrative tribunals, there is a strong policy argument in favour of the court deferring to the jurisdiction of the tribunal and protecting the integrity of the administrative mechanisms set up by the legislature. In the immediate case, there was good reason to question whether in the circumstances the court should have heard the application to quash the interim control by-law. The proper course was to remit the matter to the motions judge so that she could properly exercise her discretion.
APPEAL from a judgment of Leitch J. (2001), 18 M.P.L.R. (3d) 1 (S.C.J.) dismissing an application to quash an interim control by-law and for an order directing the issuance of a building permit.
Cases referred to Barrick Gold Corp. v. Ontario (Minister of Municipal Affairs and Housing) (2000), 2000 16929 (ON CA), 51 O.R. (3d) 194, 193 D.L.R. (4th) 635, 15 M.P.L.R. (3d) 183 (C.A.), affg (1999), 7 M.P.L.R. (3d) 148 (Ont. S.C.J.); Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321, 40 M.P.L.R. (2d) 107 (C.A.), revg (1994), 22 M.P.L.R. (2d) 167 (Ont. Gen. Div.), supp. reasons (1995), 1995 7182 (ON SC), 22 O.R. (3d) 796, 27 M.P.L.R. (2d) 123 (Gen. Div.); Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 S.C.R. 561, 96 D.L.R. (3d) 14, 26 N.R. 364, [1979] 3 W.W.R. 676; Housen v. Nikolaisen, 2002 SCC 33, 211 D.L.R. (4th) 577; R. v. Al Klippert Ltd., 1998 821 (SCC), [1998] 1 S.C.R. 737, 67 Alta. L.R. (3d) 243, 158 D.L.R. (4th) 219, 225 N.R. 107, [1999] 4 W.W.R. 509, 123 C.C.C. (3d) 474, 47 M.P.L.R. (2d) 1; R. v. Consolidated Maybrun Mines Ltd., 1998 820 (SCC), [1998] 1 S.C.R. 706, 38 O.R. (3d) 576n, 158 D.L.R. (4th) 193, 225 N.R. 41, 123 C.C.C. (3d) 449; St. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paperworkers Union, Local 219, 1986 71 (SCC), [1986] 1 S.C.R. 704, 73 N.B.R. (2d) 236, 28 D.L.R. (4th) 1, 68 N.R. 112, 184 A.P.R. 236, 86 C.L.L.C. 14,037; Toronto (City) v. Goldlist Properties Inc. (2002), 2002 62445 (ON SCDC), 58 O.R. (3d) 232, 26 M.P.L.R. (3d) 25 (Div. Ct.) Statutes referred to Building Code Act, 1992, S.O. 1992, c. 23, ss. 8, 25, 26 Canadian Charter of Rights and Freedoms Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6, 106 Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1, s. 6 Municipal Act, R.S.O. 1990, c. M.45, ss. 57, 136 Ontario Municipal Board Act, R.S.O. 1990, c. O.28, ss. 36, 57, 96 Planning Act, R.S.O. 1990, c. P.13, ss. 17(50), 34, 38, 71
Thomas J. Corbett, for appellant. Gregory F. Stewart, for respondents. [page532]
The judgment of the court was delivered by
[1] BORINS J.A.: -- This is an appeal by Country Pork Ltd. ("Country Pork") from the dismissal of its application for an order quashing Interim Control By-Law No. 14-2000 of the Corporation of the Township of Ashfield (the "Township") passed pursuant to s. 38(1) of the Planning Act, R.S.O. 1990, c. P.13, and for an order directing Mr. John Maize, the Chief Building Official of the Township, to issue a building permit to it pursuant to s. 25(1) and (4) of the Building Code Act, 1992, S.O. 1992, c. 23.
[2] On June 15, 2000, Country Pork acquired a substantial parcel of farm land in the Township with the intention of operating a large hog farm on the property. Prior to acquiring the property, Country Pork had retained Mr. Matt Ueckermann to complete the preparatory work for an application for a building permit for the construction of a 9,000-head weaner barn and an open liquid livestock manure storage facility on the property. Mr. Ueckermann was to submit the application to the Township immediately after Country Pork acquired the property. On June 16, 2000, Mr. Ueckermann met Mr. Maize and submitted Country Pork's application for the building permit. The application had not been signed by Country Pork, nor by Mr. Ueckermann on its behalf. Mr. Maize felt that he was unable to approve the application at that time, indicating that he wished to discuss certain aspects of it with the Township's planner.
[3] From the appellant's perspective, after June 16, 2000, the Township deliberately delayed processing its application by making demands for additional materials in respect to matters not required by the legislation governing the issuance of building permits. In particular, the appellant pointed to a letter of June 22, 2000 from the Township's solicitor that outlined four requirements that had to be met before a building permit would be issued, including an engineer's certificate that the proposed manure storage facility would be watertight.
[4] As a result of the June 16, 2000 meeting between Mr. Ueckermann and Mr. Maize, the appellant's intention to operate a large hog farm and its application for the building permit were brought to the attention of the Township Council. For a number of years, residents of the Township, which is largely agricultural and which contains many livestock operations, had raised environmental concerns arising from leakage of liquid manure from storage facilities similar to the one Country Pork intended to [page533] construct. Their concern was shared by the Township Council. Consequently, the Council held what the appellant contends was a secret meeting on June 26, 2000 at which it passed Interim Control By-Law No. 14-2000. The by-law precluded the use of any land in the Township for the establishment of a livestock facility, including manure storage facilities, with a capacity of 100 livestock units or greater. As Country Pork's proposed facility was intended to accommodate more than 100 livestock units, it fell within the prohibition imposed by the by-law. On June 27, 2000, Mr. Maize refused to grant the appellant's application for the building permit on the ground that the passage of the by-law prevented the issuance of the permit. On June 28, 2000, the appellant signed the application for a building permit.
II
[5] It is useful to set out the framework of Country Pork's application to the Superior Court:
(1) Under s. 25(1) of the Building Code Act, 1992, Country Pork appealed from the refusal of Mr. Maize, the Township's chief building official, to issue the building permit and asked the court to exercise its discretion under s. 25(4) of the Act to issue the permit. Its position was that Mr. Maize was required to issue the building permit because it had satisfied the conditions of s. 8(2) of the Act before the interim control by-law was passed, with the result its application for the permit had "crystallized" prior to the passage of the interim control by-law.
(2) In the alternative, Country Pork attacked the legality of the by-law on the grounds that it was contrary to the Township's official plan and s. 6(1) of the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 ("FFPPA"), and that it was passed in bad faith and in breach of natural justice. This branch of the application was brought under s. 136 of the Municipal Act, R.S.O. 1990, c. M.45.
[6] I would note that the framework of the application differs from the framework of the appeal which, as set out above, is framed as an appeal from the dismissal of Country Pork's application to quash the interim control by-law and the dismissal of its appeal from the Township's refusal to issue a building permit.
[7] In adjudicating the application, the application judge first considered Country Pork's appeal from the refusal of the chief building official to issue the building permit. She found that the [page534] appellant's application for the building permit had not crystallized before the Township's passage of the interim control by-law. The application judge then considered each of the grounds advanced by the appellant for an order quashing the by-law. She found that the by-law complied with the Township's official plan, that it was not passed in bad faith, that the appellant was accorded procedural fairness and that it was not contrary to s. 6(1) of the FFPPA.
[8] During the course of argument, the court questioned its jurisdiction to hear the appeal from the refusal to issue the building permit and the application judge's jurisdiction to determine whether the interim control by-law should be quashed. We drew the attention of counsel to s. 25(1) of the Building Code Act, 1992, which provides that an appeal from the decision of a chief building official lies to the Superior Court of Justice, with a further appeal to the Divisional Court "on any question that is not a question of fact alone", and to s. 38(4) of the Planning Act, which provides that an appeal lies to the Ontario Municipal Board from the passage of an interim control by-law under s. 38(1). Counsel assured the court that they had considered the application judge's jurisdiction to hear the application to quash the interim control by-law and this court's jurisdiction to hear the appeal on both branches of the appellant's application and had satisfied themselves that the application to quash the by-law had properly been taken to the Superior Court of Justice and that the appeal, therefore, lay to this court.
[9] Subsequent to hearing the appeal, as the court continued to have concerns about jurisdiction, counsel were asked to provide written submissions on this issue. I have now had the opportunity to consider counsels' submissions.
III
[10] In considering the application judge's jurisdiction to hear the application to quash the interim control by-law and this court's jurisdiction to hear this appeal, it is helpful to set out the provisions of the applicable legislation.
Building Code Act, 1992, as amended
25(1) Any person who considers themself aggrieved by an order or decision made by an inspector or chief building official under this Act or the regulations, except a decision not to issue a conditional permit under subsection 8(3), may, within twenty days after the order or decision is made, appeal the order or decision to a judge of the Superior Court of Justice.
. . . . . [page535]
(4) If an appeal is made under this section, the judge shall hold a hearing and may rescind or affirm the order or decision of the inspector or chief building official or take such action as the judge considers the inspector or chief building official ought to take in accordance with this Act and the regulations and, for such purpose, may substitute his or her opinion for that of the inspector or chief building official.
26(1) A party to the hearing before the judge of the Superior Court of Justice under section 25 may appeal from the decision to the Divisional Court.
(3) An appeal under this section may be made on any question that is not a question of fact alone and the court may,
(a) confirm or alter the decision of the judge;
(b) direct the inspector or chief building official to do any act he or she is authorized to do under this Act;
(c) refer the matter back to the judge for reconsideration; or
(d) substitute its opinion for that of the inspector or chief building official or the judge.
38(1) Where the council of a local municipality has, by by- law or resolution, directed that a review or study be undertaken in respect of land use planning policies in the municipality or in any defined area or areas thereof, the council of the municipality may pass a by-law (hereinafter referred to as an interim control by-law) to be in effect for a period of time specified in the by-law, which period shall not exceed one year from the date of the passing thereof, prohibiting the use of land, buildings or structures within the municipality or within the defined area or areas thereof for, or except for, such purposes as are set out in the by- law.
(3) No notice or hearing is required prior to the passing of a by-law under subsection (1) or (2) but the clerk of the municipality shall, in the manner and to the persons and public bodies and containing the information prescribed give notice of a by-law passed under subsection (1) or (2) within thirty days of the passing thereof.
(4) Any person or public body to whom notice of a by-law was given under subsection (3) may, within sixty days from the date of the passing of the by-law, appeal to the Municipal Board by filing with the clerk of the municipality a notice of appeal setting out the objection to the by-law and the reasons in support of the objection.
(5) If a notice of appeal is filed under subsection (4), subsections 34(23) to (26) apply with necessary modifications to the appeal.
34(26) The Municipal Board may,
(a) dismiss the appeal; or, [page536]
(b) allow the appeal in whole or in part and repeal the by-law in whole or in part or amend the by-law in such manner as the Board may determine or direct the council of the municipality to repeal the by- law in whole or in part or to amend the by-law in accordance with the Board's order.
- In the event of conflict between the provisions of this and any other general or special Act, the provisions of this Act prevail.
Ontario Municipal Board Act, R.S.O. 1990, c. O.28
The Board has exclusive jurisdiction in all cases and in respect of all matters in which jurisdiction is conferred on it by this Act or by any other general or special Act.
The Board shall not grant or issue any approval or certificate under this or any other general or special Act in respect of any municipal affair or matter, while the same or the validity thereof is called in question in any pending action or proceeding or by which it is sought to quash any by-law of a municipality relating thereto.
96(1) Subject to the provisions of Part IV, an appeal lies from the Board to the Divisional Court, with leave of the Divisional Court, on a question of law.
Municipal Act, R.S.O. 1990, c. M.45, as amended
136(1) The Superior Court of Ontario upon application of a resident of the municipality or of a person interested in a by-law of its council may quash the by-law in whole or in part for illegality.
Courts of Justice Act, R.S.O. 1990, c. C.43
6(1) An appeal lies to the Court of Appeal from,
(b) a final order of a judge of the Superior Court of Justice. . . .
(2) The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.
(3) The Court of Appeal may, on motion, transfer an appeal that has already been commenced in the Divisional Court or the Superior Court of Justice to the Court of Appeal for the purpose of subsection (2).
IV
[11] In its submissions on jurisdiction, Country Pork advised the court that it in fact appealed from the passage of the interim control by-law to the Ontario Municipal Board ("OMB") pursuant to s. 38(4) of the Planning Act on August 15, 2000, having [page537] previously commenced its application to quash the by-law under s. 136 of the Municipal Act in the Superior Court on July 21, 2000. By agreement between counsel for Country Pork and the Township, the proceedings before the OMB were "held in abeyance" and were adjourned pending the disposition of Country Pork's application. Although counsel for the parties, in reliance on the decision of this court in Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321, 40 M.P.L.R. (2d) 107 (C.A.), were of the opinion that the Superior Court and the OMB held concurrent jurisdiction to hear the application concerning the passage of the interim control by-law, they recognized that the Superior Court might decline jurisdiction. Following the release of the application judge's reasons for judgment on February 28, 2001, Country Pork launched its appeal to this court on March 19, 2001. In her reasons for judgment, the application judge made no reference to whether she had, or was assuming, jurisdiction over the application concerning the passage of the interim control by-law. On March 21, 2001, the OMB granted a request by the parties to further adjourn Country Pork's appeal to the Board. Thus, Country Pork's appeal of the interim control by-law remains pending before the OMB.
[12] We were also advised that on July 4, 2000, Country Pork "appealed" from the interim control by-law to the Normal Farm Practices Protection Board under the FFPPA on the ground that the by-law contravened s. 6(1) of that Act. That proceeding was adjourned by a consent order of the Board, pending the determination of Country Pork's application. Presumably, the proceeding remains adjourned.
[13] As I understand the position taken by Country Pork, which, in substance, is supported by the Township, it sought its remedies in the Superior Court because it was the "only . . . forum that had jurisdiction over all issues" -- the appeals under the Building Code Act, 1992, and the Planning Act, the application to quash the interim control by-law for illegality under s. 136 of the Municipal Act and the proceeding under the FFPPA -- even though the parties were aware of the possibility that the Superior Court might decline to exercise its jurisdiction to hear the Municipal Act application to quash the interim control by-law.
[14] From paras. 5-9 of Country Pork's submissions, it becomes clear why the application judge made no reference in her reasons for judgment to whether or not she should hear the challenge to the interim control by-law. Neither party alerted her to the need to exercise a discretion in deciding whether to hear the challenge. Country Pork gives two reasons why the discretion of the Superior Court to hear the attack on the by- law was not raised before [page538] the application judge. First, counsel relied on the "unequivocal" holding in Equity Waste Management that the Superior Court and the OMB have concurrent jurisdiction to hear an appeal under s. 38(4). Second, they assumed if the application judge was of the opinion that she should not hear the application, that "on her own initiative" she would stay the appeal under s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA").
[15] Both parties concede that Country Pork's appeal from the Township's refusal to issue a building permit properly was taken to the Superior Court under s. 25(1) of the Building Code Act, 1992, and that an appeal from that decision lies only to the Divisional Court. They contend that this court has jurisdiction to decide that appeal pursuant to s. 6(2) of the CJA because this court, under s. 6(1)(b) of the CJA, has jurisdiction over an appeal from the dismissal of Country Pork's application under s. 136 of the Municipal Act to quash the interim control by-law. This contention is based on the submission that there were two discrete proceedings before the application judge -- an appeal under s. 25(1) of Building Code Act, 1992, and an application to quash the interim control by- law under s. 136 of the Municipal Act -- and, even though under s. 38(4) of the Planning Act an interim control by-law appeal lay to the OMB, that the application judge, as in Equity Waste Management, properly exercised her discretion to assume jurisdiction to decide the application to quash the by-law. For the reasons that follow, I do not agree.
V
[16] Earlier I referred to the framework of Country Pork's application to the Superior Court and the approach taken by the application judge in her analysis of the issues raised by the application. I did so because the position advanced by the parties on jurisdiction is based on Country Pork having sought two alternative remedies in its application: (1) an appeal under s. 25(1) of the Building Code Act, 1992 from the refusal to issue a building permit, and (2) an application under s. 136(1) of the Municipal Act to quash the interim control by- law. It is on the basis of this framework that the parties say that this court has jurisdiction to hear Country Pork's appeal. This is borne out by the manner in which Country Pork has framed this appeal.
[17] Had Country Pork's appeal under s. 25(1) of the Building Code Act, 1992, succeeded and had the application judge issued the building permit under s. 25(4) of the Act, there would have been no need for her to consider Country Pork's attack on the interim control by-law. In such circumstances, had the Township [page539] appealed the granting of the building permit, under s. 26(3) its appeal lay to the Divisional Court "on any question that is not a question of fact alone". However, the application judge dismissed the building permit appeal and went on to consider the alternative remedy requested by Country Pork, an order quashing the interim control by-law. She refused to grant such an order.
[18] In my view, the application judge's order refusing to quash the interim control by-law is a final order within the meaning of s. 6(1)(b) of the CJA and Country Pork's appeal from it properly lies in this court. Consequently, under s. 6(2) of the CJA, this court has jurisdiction to hear its appeal from the dismissal of its appeal under s. 25(1) of the Building Code Act, 1992. In considering the building permit appeal, this court is governed by s. 26(3) of the Building Code Act, 1992, which stipulates the powers of the Divisional Court where an appeal lies to that court. For the reasons that follow, I would dismiss the building permit appeal.
VI
[19] I will now consider whether this court should decide the merits of the appeal from the application judge's dismissal of the application to quash the interim control by-law. The starting point is whether the application judge had jurisdiction to hear the appellant's application to quash the by-law on the ground of illegality under s. 136(1) of the Municipal Act. The appellant argues that she had jurisdiction notwithstanding that s. 38(4) of the Planning Act stipulates that an appeal from the passage of an interim control by-law lies to the OMB. Both the appeal to the OMB and the application under s. 136 of the Municipal Act to quash the by-law are predominantly on planning grounds. The parties contend that she had jurisdiction on the authority of this court in Equity Waste Management, which they say unequivocally stands for the proposition that the Superior Court and the OMB have concurrent jurisdiction to adjudicate an appeal from the passing of an interim control by-law, with discretion resting in the court to decline to defer to the jurisdiction of the OMB in appropriate circumstances.
[20] This analysis requires a consideration of the circumstances that pertained in Equity Waste Management. In that case, Laskin J.A. considered the jurisdiction of the Superior Court and the OMB where, as in this case, both an application to quash an interim control by-law under s. 136 of the Municipal Act had been taken to the court and an appeal from the passing of the by-law had been taken to the OMB under s. 38(4) of the Planning Act. [page540]
[21] In Equity Waste Management, an application was brought under s. 136(1) of the Municipal Act to quash an interim control by-law on the ground that it was passed in bad faith. The parties had earlier appealed to the OMB under s. 38(4) of the Planning Act. However, because the Board could not hear the appeal for several weeks to the prejudice of the applicants, they decided to proceed in the General Division (the predecessor of the Superior Court) under s. 136(1) of the Municipal Act. Given that s. 38(4) of the Planning Act stipulates that an appeal from the passage of an interim control by-law is to be made to the OMB, that s. 36 of the Ontario Municipal Board Act vests the Board with exclusive jurisdiction in all matters referred to it by any other general or special Act, and that under s. 96 of the Ontario Municipal Board Act, decisions of the OMB are appealable to the Divisional Court, the respondent argued that this comprehensive scheme evidenced the intention of the legislature to vest the OMB with exclusive jurisdiction to review the validity of interim control by-laws.
[22] On behalf of the court, Laskin J.A. considered, and rejected, this argument at pp. 331-33 O.R. He was satisfied that in deciding whether to quash an interim control by-law, the OMB had the power to consider an allegation of bad faith, particularly when it is based on the absence of a planning rationale for the by-law or the lack of proper planning principles to support the by-law, and that the Board is well- suited to do so. However, he concluded that in an appropriate case, the court, in its discretion, may decline to defer to the jurisdiction of the OMB and itself decide the validity of the by-law.
[23] The application judge had also rejected the argument on the exclusive jurisdiction of the OMB, concluding that "[n] otwithstanding that such an appeal [to the OMB] has been launched, the Applicants are in no way restricted from moving before the Court to quash the Interim Control By-law": (1994), 22 M.P.L.R. (2d) 167 at p. 169 (Ont. Gen. Div.). Although at p. 332 O.R., Laskin J.A. acknowledged that courts should be reluctant to exercise their jurisdiction on matters that the legislature has left to a specialized tribunal with broad powers, he agreed with the application judge that in the particular circumstances of that case the applicants could appropriately invoke the jurisdiction of the court under s. 136(1) of the Municipal Act. He concluded at p. 333 O.R.: "The [application] judge, therefore, properly exercised her discretion to hear the application on the ground of urgency."
[24] As I understand the judgment, Laskin J.A. was of the view that in the urgent circumstances of that case it was unnecessary for the application judge to defer to the jurisdiction of the OMB. Laskin J.A. found no grounds on which to interfere with the [page541] application judge's exercise of her discretion. In my view, the opinion of Laskin J.A. is relevant to the circumstances of this appeal. In particular, it is significant that Laskin J.A. concluded that the application judge properly exercised her discretion despite being satisfied that the OMB would be well-suited to consider the appeal.
[25] There are both similarities and differences between Equity Waste Management and this case. As in Equity Waste Management, Country Pork appealed the passage of the interim control by-law to the OMB and then applied under s. 136(1) of the Municipal Act to quash the by-law on grounds similar to those advanced in that case. Indeed, in this case the attack on the interim control by-law is predominantly on planning grounds. As for the differences, unlike Equity Waste Management, there is no evidence of urgency, nor of Country Pork requesting an early hearing date from the OMB that the Board was unable to provide. Nor did the parties ask the application judge to exercise her discretion and to decline to defer to the jurisdiction of the OMB, and to assume jurisdiction to hear the application.
[26] As I have indicated, counsel interpreted Equity Waste Management to stand for the proposition that the Superior Court and the OMB have concurrent jurisdiction to determine the validity of an interim control by-law and that counsel are free to decide in which forum to attack the by-law. In my view, counsel misread Equity Waste Management as giving an applicant a choice of forum in which to attack an interim control by-law, rather than as a concurrent forum case which holds that in appropriate circumstances the court and the OMB have concurrent jurisdiction to determine the validity of the by-law, provided that the court expressly exercises its discretion on proper grounds to decline deference to the jurisdiction of the OMB.
[27] In my view, therefore, it is necessary to consider whether the application judge should have heard the application under s. 136 of the Municipal Act, or whether she should have deferred to the jurisdiction of the OMB. Had she been asked to properly assume jurisdiction, she would have had to consider the nature of the attack on the interim control by-law, as well as the legislative scheme for appeals from municipal planning decisions contained in the Planning Act.
[28] As to the nature of an attack on an interim control by- law, it is necessary to consider both s. 136(1) of the Municipal Act and s. 38(4) of the Planning Act, which provide the Superior Court and the OMB, respectively, with separate and distinct jurisdiction in relation to attacks on municipal by- laws. Section 136(1) of the Municipal Act provides the court with a limited supervisory jurisdiction to quash all or part of a municipal by-law where it [page542] has determined that the by-law is illegal, for example, as being ultra vires the municipality or contrary to the Canadian Charter of Rights and Freedoms. Section 136(1) of the Municipal Act is not a vehicle for consideration of the merits of a municipality's decision to pass the by-law, or whether it conforms to proper municipal planning principles. As was said by this court in Barrick Gold Corp. v. Ontario (Minister of Municipal Affairs and Housing) (2000), 2000 16929 (ON CA), 51 O.R. (3d) 194 at pp. 209-10, 193 D.L.R. (4th) 635 (C.A.): "Section 136 of the Municipal Act does not mandate a judicial inquiry into the merits, from a policy perspective, of by-laws or resolutions."
[29] One can contemplate a situation where an interim control by-law is based on proper planning principles but is outside of the municipality's jurisdiction and is, therefore, unlawful. In this situation, according to the analysis of the Divisional Court in Toronto (City) v. Goldlist Properties Inc. (2002), 2002 62445 (ON SCDC), 58 O.R. (3d) 232, 26 M.P.L.R. (3d) 25 (Div. Ct.), the OMB would not have jurisdiction to consider whether the by-law is a valid exercise of authority by the municipality. In Toronto, the court held that the OMB's jurisdiction on an appeal under s. 17(50) of the Planning Act, as amended, extends to determining whether by-laws should be approved on Planning Act principles, but does not include a determination of the validity and legality of a by-law.
[30] In Toronto, Blair R.S.J. held at pp. 248-49 O.R. that:
. . . neither the Planning Act nor the Ontario Municipal Board Act, nor the Municipal Act, give the OMB a supervisory jurisdiction over the legislative competency of municipalities. The Board is given supervisory jurisdiction, in this context, over their municipal planning competence.
(Emphasis in original)
He went on to add at p. 249 O.R.: "If this were not the case . . . there would be no need for the statutory scheme which remains in effect in relation to the quashing of by-laws and the determination of their validity." He then referred to s. 57 of the Municipal Act, commenting at p. 250 O.R. that it implicitly, if not expressly, requires the OMB "to stay its hand while matters relating to the validity and legality of by- laws are determined by the court".
[31] The two sections of the Planning Act operative in Toronto and in this appeal, s. 17(50) and s. 38(4), respectively, form part of a scheme contained in the Act that constitutes the OMB as the forum for deciding whether municipal planning by-laws and resolutions conform to proper Planning Act principles. In creating the scheme the legislature has recognized the OMB's expertise in planning issues. In this appeal, it would be for the OMB to determine whether the interim control by-law was appropriate as supported by underlying Planning Act principles and the Township's [page543] official plan. Under s. 34(26) of the Act, the OMB may, essentially, substitute its judgment for that of the municipality. That the OMB is the forum for the determining [of] a merit-based attack on a municipal by-law is confirmed by s. 36 of the Ontario Municipal Board Act that provides the OMB with exclusive jurisdiction in relation to such matters.
[32] In my view, when the legislature provided for the OMB to rule upon whether municipal by-laws and resolutions meet the principles of the Planning Act, it intended for the OMB to have exclusive jurisdiction to determine such questions. The OMB is a tribunal that has expertise in municipal planning. In cases where the court is asked to assume jurisdiction over matters that the legislature has assigned to administrative tribunals, there is a strong policy argument in favour of the court deferring to the jurisdiction of the tribunal in favour of protecting the integrity of administrative mechanisms set up by the legislature. Where the court is an alternative forum to a tribunal provided in a comprehensive legislative scheme, considerable judicial deference is to be given to that scheme and the expertise of the tribunal before the court exercises its discretion to assume jurisdiction. See Ste. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219, 1986 71 (SCC), [1986] 1 S.C.R. 704, 28 D.L.R. (4th) 1. Were an individual, in circumstances such as this case, free to choose whatever forum he or she wished in order to attack the validity of an interim control by-law on the grounds that it is contrary to proper planning principles, the result would be to undermine the intention of the legislature that all appeals from municipal planning decisions on Planning Act grounds be determined by the OMB. See, also, the policy with respect to collateral attacks on the validity of administrative orders as discussed in Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 S.C.R. 561, 96 D.L.R. (3d) 14, R. v. Consolidated Maybrun Mines Ltd., 1998 820 (SCC), [1998] 1 S.C.R. 706, 158 D.L.R. (4th) 193, and R. v. Al Klippert Ltd., 1998 821 (SCC), [1998] 1 S.C.R. 737, 158 D.L.R. (4th) 219.
[33] Therefore, had the application judge been asked to exercise her discretion whether to assume jurisdiction or to defer to the OMB, it would have been necessary for her to consider the following circumstances:
-- the attack on the interim control by-law was predominantly on Planning Act principles;
-- unlike the attack on the by-law amending the official plan in Toronto, this was not "a direct frontal attack on the underlying validity and legality" of the by-law; [page544]
-- incidental and necessary to the OMB's determination of whether the by-law should be quashed on Planning Act principles, which is within the OMB's jurisdiction, it could properly consider whether the by-law was passed in bad faith and in breach of natural justice;
-- the intention of the legislature expressed in the statutory scheme in the Planning Act vesting exclusive jurisdiction in the OMB to review municipal by-laws and resolutions on the basis of proper planning principles;
-- the expertise of the OMB in the field of municipal planning law;
-- the policy that requires judicial deference to a statutory scheme vesting an administrative tribunal with jurisdiction to resolve disputes within its area of expertise.
[34] Given the above analysis, there is good reason to question whether the court should have heard the interim control by-law appeal rather than deferring to the jurisdiction of the OMB. As I have said, unlike Equity Waste Management, the application judge was not asked to exercise her discretion and assume jurisdiction to hear the appeal, whether on the ground of urgency, or any other ground. As well, there is no evidence of urgency or that the OMB had rejected a request from the appellant for an expedited hearing. As I have indicated, issues may be common on both the application to quash for illegality and the appeal on the merits, e.g., an allegation of bad faith. Where the same issue, or issues, arise on both the application to quash and the appeal to the OMB, it becomes a matter of choosing the more appropriate forum according to the criteria that I have outlined.
[35] As, in my view, the proper course to follow is to decline to decide the merits of the interim control by-law appeal and to remit the original interim control by-law appeal to the application judge to determine, in accordance with these reasons, whether she should exercise her discretion to hear the appeal, I will say no more on the subject of jurisdiction. If the application judge defers to the jurisdiction of the OMB, Country Pork may, of course, proceed with its appeal to the OMB which, I assume, remains pending, or, if it is so advised, may abandon its court proceedings and proceed directly to the OMB.
VII
[36] It is necessary, now, to consider Country Pork's building permit appeal. [page545]
[37] The factual background to this appeal, in brief summary, is as follows. The appellant acquired the property on June 15, 2000. On June 16, Mr. Ueckermann met with Mr. Maize and delivered to him a nutrient management plan and drawings of the proposed barn and manure storage tank prepared by Mr. Nelson Dawley, an independent engineer retained by the appellant. Although no building plan permit application was completed at this meeting, Mr. Ueckermann deposed in his affidavit that he expected to receive the building permit on this occasion and was surprised when he did not. On June 19, Mr. Ueckermann was advised that the project would be discussed at the meeting of the Township council scheduled for the following day. Mr. Maize attended that meeting, met with council to review the nutrient management plan, and was instructed to deliver the plan to the Township's solicitors. On June 21, Mr. Ueckermann spoke to Mr. Maize, who indicated that a certificate was required from Mr. Dawley stating that the storage tank would be watertight. On the same day, Mr. Maize wrote to Mr. Dawley's firm, Dawley Engineering, setting out the requirements of the certificate. On June 22, Mr. Murphy, the Township solicitor, outlined in a letter to the appellant's solicitors the requirements that had to be met before a building permit would be issued. They were:
-- that the appellant provide the required certificate from Mr. Dawley;
-- that a development agreement be entered into as required by the Township bylaws;
-- that a signed application for a permit be submitted, together with the necessary fee; and
-- that the nutrient management plan might have to be reviewed by an independent consultant.
On June 26, the Township passed the interim control by-law. On June 27, Mr. Ueckermann was advised about the passage of the interim control by-law. On June 28, the appellant signed the application for a building permit.
[38] Before the application judge, the appellant took the position that it had complied with all applicable legal requirements by June 19, and was entitled to its building permit on that date. The Township's position was that the building permit could not be issued because the appellant's application was not made until June 28, two days after the interim control by-law was passed. [page546]
[39] In her reasons for judgment, the application judge made the following findings with respect to this issue:
(a) Mr. Maize had no discretion to refuse to issue the permit if all the statutory requirements had been fulfilled;
(b) neither the Ontario Building Code nor the National Building Code provides any design criteria for the floors of the manure tank;
(c) there had been previous incidents in the Township involving a failure of manure tank design which had led to discharge of manure into drains and ultimately into Lake Huron;
(d) on a prior application by another owner for a large barn with an outside manure storage tank, Mr. Maize had required Mr. Dawley to certify that, among other things, the structure would be watertight;
(e) there was no evidence that the Township council interfered with Mr. Maize's review of the materials filed by the appellant;
(f) Mr. Ueckermann's suggestion that he expected to receive the building permit on June 16 was unrealistic to the point of being incredible, given the quantity of material submitted with the application;
(g) Mr. Dawley's certification was sought in order to fulfill the requirement of the National Building Code that the manure tanks must be designed and constructed to prevent leakage; and
(h) it was within Mr. Maize's discretion to request the confirmations he did from Dawley Engineering, and he was not influenced to do so because of improper interference by the Township council.
[40] In the result, the application judge expressed herself as "satisfied that the applicant was not entitled to a building permit prior to the passage of the interim control by-law".
[41] The standard of review on appeal, even in cases where, as here, the entire record consists of documentary or written evidence, is one of deference: Equity Waste Management, at pp. 333, 336 O.R. Appellate courts may not interfere with findings of fact, inferences of fact or conclusions of mixed fact and law, which may not be reversed in the absence of a legal or palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, 211 D.L.R. (4th) 577. [page547]
[42] In making the findings she did, the application judge carefully reviewed and marshalled the evidence before her. I cannot find, in doing so, and in concluding that the appellant was not entitled to a building permit prior to the passage of the interim control by-law, that she made any legal or palpable or overriding error.
VIII
[43] For the foregoing reasons, I would dismiss Country Pork's building permit appeal, allow its interim control by-law appeal, set aside the order of the application judge dismissing that appeal, and remit the interim control by-law application to the application judge to reconsider it in accordance with these reasons. As success has been divided, there will be no costs.
Order accordingly.