Court of Appeal for Ontario
Citation: London Development Institute (London Land Developers Association) v. London (City), 2010 ONCA 785
Date: 2010-11-18
Docket: C52179
Between:
London Development Institute (London Land Developers Association), 700531 Ontario Ltd., Mollyanne Johnston, Corlon Properties Inc., Norquay Developments Inc., Johanne and Antonia Schalk, Liahn Farms, Drewlo Holdings Inc., Z Group Limited, Crich Holdings and Buildings Limited, Sunningdale Developments Inc., and Claybar Developments Inc.
Applicants (Appellant)
and
The Corporation of the City of London and Sandy Levin
Respondents
Before: Moldaver, Armstrong and Rouleau JJ.A.
Counsel:
Michael Melling and Amber Stewart, for the London Development Institute
Janice Page, for the Corporation of the City of London
Peter Pickfield, for Sandy Levin
Stan Floras, for the Ontario Municipal Board
Heard & released orally: November 12, 2010
On appeal from judgment of the Divisional Court (Justices Hambly, Murray and Ray), dated November 26, 2009, with oral reasons by Murray J.
ENDORSEMENT
[1] This appeal concerns the validity of OPA 403, an amendment to the City of London’s Official Plan which says that woodlands will be considered significant and designated as “Open Space” if they meet certain criteria laid out in a separate guideline (the “2006 Guideline”). A previous amendment to the official plan – OPA 401 – added the 2006 Guideline to a list of guideline documents, enumerated in the Official Plan, but the 2006 Guideline was not integrated into the text of the Official Plan.
[2] The appellant argues that the challenged amendment makes the criteria in the 2006 Guideline determinative in the designation of woodlands as “significant”. In the appellant’s view, this makes the 2006 Guideline binding and constitutes an impermissible delegation of authority.
[3] In its reasons, the Ontario Municipal Board (“OMB”) explains that, even if the criteria in the 2006 Guideline for finding woodlands to be significant are met, this conclusion could nonetheless be challenged for failing to meet the standard of significance according to the considerations set out in s. 15.4.5 of the Official Plan. In the event of a conflict or inconsistency between the 2006 Guideline designation of significance and the Official Plan designation, the latter will always govern.
[4] The Board held that use of the 2006 Guideline as an evaluation procedure is consistent with the official plan policies respecting guideline documents and specifically, Policy 19.2.2.
[5] In a brief decision, the Divisional Court dismissed the appeal. It agreed with the Board that OPA 403 does not determine the significance of woodlands. The determination is made on a case by case basis and if lands are improperly designated, the land owner may challenge the decision.
[6] In this court, the respondent City argues that the Board’s interpretation of the Official Plan and the statute was not only reasonable, it was correct. Despite the statement in OPA 403 that, if certain criteria set out in the 2006 Guideline are achieved, the woodland “will” be considered significant, the City explains that neither it nor the OMB are fettered in their discretion. All of the factors set out in s. 15.4.5, the balance of the Official Plan and any other relevant matters must be considered in deciding whether a specific woodland property is “significant”, such that it ought properly to be designated as Open Space and delineated as a Significant Woodland, pursuant to s. 15.4.5.1 of the Official Plan.
[7] We agree with the city’s submission as to the effect of OPA 403 and, as a result reject the appellant’s submission and dismiss the appeal.
[8] Taking into account the novelty of the issue and the fact that the involvement of two respondents resulted in some duplication, we award costs fixed at $7,500 to each of the Corporation of the City of London and Sandy Levin, inclusive of disbursements and applicable taxes. There will be no order as to costs with respect to the OMB.
“M.J. Moldaver J.A.”
“R.P. Armstrong J.A.”
“Paul Rouleau J.A.”