COURT OF APPEAL FOR ONTARIO
CITATION: Najjar v. Brombow Developments Limited, 2015 ONCA 383
DATE: 20150528
DOCKET: C59642
Juriansz, MacFarland and Lauwers JJ.A.
BETWEEN
Larry Najjar
Moving Party
(Appellant)
and
Brombow Developments Limited and The Municipality of Chatham-Kent
Respondents (Respondents)
Larry Najjar, acting in person
John Norton and Daniel Byskal, for the respondent, The Municipality of Chatham-Kent
Alan Patton, for the respondent, Brombow Developments Limited
Heard: April 23, 2015
On appeal from the order of Justice Joseph M.W. Donohue of the Superior Court of Justice, dated October 21, 2014.
Lauwers J.A:
Background
[1] The underlying dispute on this appeal concerns reasonable public access to a woodlot.
[2] Paxton’s Bush is a 21-acre woodlot in Chatham-Kent. It is bisected into north and south halves by a drainage ditch known as the Brown Drain. Both halves of Paxton’s Bush are owned by the Municipality of Chatham-Kent. Public access to the north half across the Brown Drain requires the construction of a culvert across the Brown Drain.
[3] Brombow Developments Limited conveyed the north half of the Bush to the Municipality but still owns the adjoining land. Brombow owns the land on either side of the drainage corridor but refuses to give the Municipality construction access to the Brown Drain across its land. While access through the south half of Paxton’s Bush for the necessary heavy construction equipment is physically possible, it would result in the destruction of too many trees.
[4] The appellant asserts that in refusing access, Brombow is breaching specific language in a Settlement Agreement between the Municipality and Browmbow, reached during proceedings before the Ontario Municipal Board under which it “agrees to cooperate with Chatham-Kent and a chosen service club or community agency which may wish to establish Open Space/Trail Way linkages prior to development of the balance of the Brombow lands.”
[5] The appellant brought a motion under s. 86 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 (“OMB Act”), to enforce the terms of a Settlement Agreement between Brombow and the Municipality of Chatham-Kent. The appellant asks this court to reverse the motion judge’s dismissal of the motion.
[6] For the reasons set out below, I would dismiss the appeal.
The Context of the OMB Hearing
[7] Brombow sought the OMB’s approval under the Planning Act, R.S.O. 1990, c. P.13, for its development plans for a large farm property that included the north half of Paxton Bush. At the commencement of the OMB hearing to assess Brombow’s application, Brombow and the Municipality announced they had come to a settlement, and would together be seeking the OMB’s approval of the implementing planning documents.
[8] Under the Settlement Agreement, Brombow received certain development permissions from the Municipality, and was to convey the north part of a forested area known as Paxton’s Bush, which was about 11 acres in size, to the Municipality.
[9] At the hearing, the OMB Vice-Chair considered the evidence, including the expert planning evidence from Brombow and the Municipality. He issued an oral decision on November 2, 2010, which was formalized on November 19, 2010 into a memorandum of oral decision. The Vice-Chair accepted the expert planning opinion, that:
(a) OPA [Official Plan Amendment] 16 represents good planning, is consistent with the Provincial Policy Statement and is consistent with the planning approach taken by the Municipality elsewhere in its settlement area;
(b) The ZBA [Zoning By-law Amendment] conforms to and implements OPA 16; and
(c) The Draft Plan had regard for the matters enunciated in subsection 51(24)(a) to and including (m) of the Planning Act.
[10] As is the OMB’s practice, the Vice-Chair withheld his order approving these planning documents “pending confirmation from the Municipality that the conveyance of land from Brombow to the Municipality as set out in the Settlement Agreement has been registered on title to the lands in question.” The OMB’s final order giving effect to its approvals was issued on February 9, 2011. The preamble notes that the Board has “received the required confirmation that conveyance of the lands is required by the Settlement Agreement has been completed.”
[11] Paragraph 15 of the Settlement Agreement provides:
The lands located on either side of the Brown Drain are intended for future Open Space/Trail Way linkages but these lands will not be conveyed by Brombow to Chatham-Kent in the Phase 1 development as set forth in paragraph 8 above save for those sections of the Open Space/Trail Way linkage which directly abut the Phase I development lands. Regardless, Brombow agrees to cooperate with Chatham-Kent and a chosen service club or community agency which may wish to establish Open Space/Trail Way linkages prior to development of the balance of the Brombow lands, such Open Space/Trail Way linkages having at all times regard to the needs and requirements of the adjacent lands of Brombow for ongoing agricultural use and regard to potential disruption to the Open Space/Trail Way linkage related to construction activity and the installation of infrastructure;
[12] The appellant was a party to the OMB hearing at which the Settlement Agreement was tendered on November 2, 2010, as noted in the Board’s formal memorandum of oral decision dated November 19, 2010. He submitted to this court that he was initially content with the Settlement Agreement because he thought the interests of the community were protected by the wording of para. 15, although he took no position on it at the OMB hearing.
[13] Despite its obligation to cooperate set out in para. 15, Brombow has refused to permit heavy equipment to cross its land to permit the construction of the culvert across the Brown Drain. The appellant described “three years of stalling” during which the Municipality appeared completely unwilling to do anything meaningful to seek enforcement of para. 15. Counsel for the Municipality did not deny the appellant’s assertion.[^1]
The Appellant’s Motion to the Superior Court
[14] This state of affairs led the appellant to personally move to enforce the Settlement Agreement under s.86 of the OMB Act, which provides:
- (1) A certified copy of any order or decision made by the Board under this Act or any general or special Act may be filed with the Superior Court of Justice, and thereupon becomes and is enforceable as a judgment or order of the Superior Court of Justice to the same effect, but the order or decision may nevertheless be rescinded or varied by the Board.
(2) It is optional with the Board to adopt the method provided by this section for enforcing its orders or decisions or to enforce them by its own action.
[15] The motion judge dismissed the motion because he could “find no basis in agreement, prior orders, law or statute for the relief sought.” He held that “the OMB order of 9 February 2011 does not impose on Brombow an obligation to allow the Municipality (C-K) onto Brombow’s lands to access the Brown Drain within the subject woods.”
The Appellant’s Submissions
[16] The appellant concedes he is not a party to the Settlement Agreement and has no right to enforce it as a matter of ordinary contract law. That right belongs to the Municipality.
[17] The appellant also acknowledges the approval order of the OMB dated February 9, 2011 makes only a single mention of the Settlement Agreement, in the preamble, which provides that the Board has “received the required confirmation that the conveyance of the lands is required by the Settlement Agreement has been completed.” None of the planning documents approved by the OMB refer to the Settlement Agreement.
[18] The appellant argues, however, that the decision he is seeking to enforce is the memorandum of oral decision dated November 19, 2010, not the order of February 9, 2011. He asserts that he has status to do so under the OMB Act because he was a party to the hearing.
[19] The appellant relies on the Vice Chair’s language in the memorandum of oral decision, in particular: the planning evidence provided by the experts was “[i]n support of the Settlement Agreement”; the formal order will be withheld until the conveyance of land as “set out in the Settlement Agreement” has occurred; and, in the last sentence of the decision, “ if there are any difficulties encountered with respect to these conditions or in relation to any other aspect of the Settlement Agreement, I shall remain seized.”
[20] In response to a question from the bench, the appellant acknowledged that he did not go back to the OMB in reliance on the last sentence of the November 19, 2010 memorandum of oral decision, or under s. 86(1) of the OMB Act. His explanation was that, as a litigation lawyer, he is more comfortable in a court environment, so he simply took that route, which seemed to be open to him.
Discussion
[21] The Legislature has chosen to confer responsibility for approvals in the land use planning process on the OMB, which is an expert tribunal. In that context, the court should be reluctant to consider issuing an enforcement order under s. 86 of the OMB Act, at first instance, for three reasons. First, the OMB Act sets out an alternative route: s. 86(1) states that the “decision may nevertheless be rescinded or varied by the Board”, and s. 86(2) gives the OMB additional responsibility for selecting the method of enforcing decisions.
[22] Second, the court should be reluctant to interpret the meaning of the expression “Brombow agrees to co-operate with Chatham-Kent” in para. 15 of the Settlement Agreement, in the context of the entire package of planning documents, including the Settlement Agreement itself. That is better left to the OMB as the expert tribunal that approved the planning documents that are referred to in the Settlement Agreement.
[23] Third, the court should be reluctant to conclude, although it may well be the case, that upon issuance of the formal order in February 2011, the Vice-Chair was functus officio and was no longer seized under the terms of the last sentence of the memorandum of oral decision of November 19, 2010. There is no evidence before this court as to the OMB’s practice in such circumstances, which might well be entirely different than the approach a court would take.
[24] In these circumstances, before approaching the Superior Court, the appellant ought to have moved before the OMB for further relief under the last sentence of the memorandum of oral decision of November 19, 2010, if available, or under s. 86(1) of the OMB Act, to rescind or vary the OMB’s order, before seeking an order of the Superior Court.
[25] It was therefore, with respect, not necessary or desirable for the motion judge to interpret the Settlement Agreement. He said, specifically:
The terms of the agreement … do not bind Brombow to such a burden [of permitting access]. “Co-operation” cannot be construed as a specific binding legal obligation. Nor does the agreement bind Brombow to a specific burden re: installation of infrastructure within the woodlot.
[26] For the reasons set out above, the task of interpreting the Settlement Agreement was not properly before the motion judge and is not before us on this appeal. I would not wish to be taken as accepting or rejecting the motion judge’s interpretation.
[27] Although I would not affirm the motion judge’s reasons, I would dismiss the appeal, without prejudice to the appellant to seek a remedy elsewhere.
[28] Brombow seeks costs in the nominal amount of $1500. The appellant asserts that he is a public interest litigant and should not be required to pay costs. There is no principle that insulates public interest litigants from a costs award. Costs in this case should follow success, and I would fix them at $1500 payable by the appellant to the respondent Brombow.
Released: May 28, 2015 “JMacF”
“P. Lauwers J. A.”
“I agree Russell G. Juriansz J.A.”
“I agree J. MacFarland J.A.”
[^1]: Although the Municipality appears before us as a respondent with the right to enforce the Settlement Agreement, it does not seek to do so in these proceedings, noting only that it, “as a public interest litigant, takes no position other than to provide context in order to assist the court in its interpretation of the OMB decision”.