COURT FILE NO.: 218/02

DATE: 2002-12-11

SUPERIOR COURT OF JUSTICE - ONTARIO

(Divisional Court)

RE: Embee Properties Limited et al. v. Niagara Escarpment Commission et al.

BEFORE: Coo, Gravely and Ellen Macdonald JJ.

COUNSEL: M. J. McQuaid, John Alati and Peter Pickfield, for the Applicants

W. J. Manuel, for the Niagara Escarpment Commission and for Her Majesty the Queen in Right of Ontario, (as represented by the Ministry of Municipal Affairs and Housing and Ministry of Natural Resources)

Stan Floras, for the Regional Municipality of Halton

Jyoti Zuidema, for the Corporation of the City of Burlington

Joe Nemet, for David Pearson, Hearing Officer

No one appearing for Marguerite Gall or James Fisher

HEARD: October 18, 2002

E N D O R S E M E N T

[1] This is an application for judicial review of the order of Hearing Officer Pearson, appointed under section 10.(3) of the Niagara Escarpment Planning and Development Act, declaring that he had jurisdiction to proceed with a hearing in regard to the preparation of an amended Plan for the Niagara Escarpment Planning Area. Further related relief is sought against the Commission and, if thought necessary, the relevant Minister.

[2] Trying to put matters with compendious simplicity, the Act was first passed in 1973. Its ultimate key language was, and is, as follows:

Establishment of Niagara Escarpment Planning Area

3. (1) The Minister may, by order, establish as the Niagara Escarpment Planning Area the area of land in Ontario defined in the order and the Minister may alter the boundaries of the Planning Area by amendment to the order.

Direction by Minister to prepare Niagara Escarpment Plan

(2) Where the Niagara Escarpment Planning Area has been established under subsection (1), the Minister shall include in the order a direction to the Commission that it carry out an investigation and survey of the environmental, physical, social and economic conditions in relation to the development of the Planning Area or any part thereof, and that there be prepared within a period of two years or such other period of time as the Minister in his or her order determines, a plan suitable for approval as the Niagara Escarpment Plan.

Order or amending order to be laid before Assembly

(3) Where any order or amendment thereto is made under subsection (1), the Minister shall, on the day the order or amending order is made, or as soon thereafter as is practicable, lay the order or amending order before the Assembly if it is in session or, if not, at the commencement of the next session and the Assembly shall, by resolution, declare the order or amending order approved, revoked or varied. R.S.O. 1990, c. N.2, s. 3.

[3] In 1974 the Minister of the time made an order under section 3.(1), establishing the Planning Area and defining the land involved. Pursuant to section 3.(2), the order included a direction that an investigation and survey described in the section be carried out.

[4] The order was, as legislatively required by section 3.(3), approved by the legislative assembly.

[5] Years passed, and the time for the investigation and survey was extended under section 3.(2). It would appear that the work was eventually done, but that issue is not directly before us. In any event, in 1985 a plan for the Area was approved under section 3.(3).

[6] The Minister decided to alter the boundaries of the Area, and did so in 1990 by amendment to the order of 1974 pursuant to section 3.(1), changing the land description in that order.

[7] This order was also approved by the legislative assembly, under section 3.(3). There is no way to challenge this boundary extension order as approved. That aspect of the matter is over.

[8] The next step is the amendment of the Plan for the Area. Without such an amendment, counsel agree that the property brought into the Plan will continue to be governed by whatever land use rules are presently in place.

[9] The question is, in consequence of the amendment to the order under section 3.(1), did there and does there have to be, as a condition precedent to proceeding with Plan amendment procedures for the Area, an investigation and survey described in section 3.(2) of the Act; or did that only have to be done once, when the Area was first established? Upon the answer to that question, simply posed, but with greater difficulty answered, hang the applicants’ right to remedies now sought.

[10] To deal with a few peripheral matters first, in our view, on the authority of Re Chadwill Coal Co. Ltd. et al. and McCrae et al. (1976), 14 O.R. (2d) 393 at 396, the order of the Hearing Officer is subject to legitimate review before us, given the practical reality of what he was invited to do, and did do, in regard to moving forward with the hearing.

[11] We also accept that Mr. Manuel had the right to respond to the prayer for relief in regard to the Minister. We have no factum on the Minister’s behalf, but in response to our inquiry at the opening of the hearing, counsel assumed authority to speak to that phase of the issue.

[12] As is so often the case in statutory interpretation cases, the opposing parties rely in a major way on the same principles of interpretation, both sides claiming that it is ‘obvious’ that their view is the only tenable one. There is added reliance by the applicants on the interpretive principle that legislative language should ordinarily be interpreted as continuing to speak, so long as it remains part of the legislative fabric.

[13] In our view the only fair and reasonable interpretation of the legislative provisions is that the investigation and survey referred to in section 3.(2) is the one which originally, and on establishment of the Area, the Minister was obliged to direct be conducted. The order made by the Minister to establish the Area was the condition precedent to legislative direction that he “shall…include in the order [establishing the Area] a direction to the Commission that it carry out the investigation and survey…”. It was in that direction that there could have been a provision that the investigation and survey be ordered to cover the whole Area “…or any part thereof…”. This presumably was because it might have been felt that such a step with regard to the whole geographical boundary just established by order might be unnecessary or redundant, in which event the information to be gathered might have been limited to what was felt to be a relevant or important part.

[14] The reference in subsection (2) to the Area “established” under subsection (1), “the order” under subsection (1) accomplishing that task, and the reference to the preparation within a certain period of time of “a plan” for approval as “the Niagara Escarpment Plan” (emphasis added), all fortify us in our interpretation of the subsection. The meaning we attach to the language of subsection (2) is grammatically and literally correct and fits in with the general purpose and intent of the entire legislative package in the way that it responds to the rights of those touched by it. There is no interference with principle or policy in this interpretation.

[15] To deal with specific arguments addressed by counsel for the applicants in opposition to our interpretive view, firstly, we do not view the non-legislative letter-direction from the Minister to the Commission that an investigation and survey be carried out, upon the occasion of the increase in Area boundary, as imposing on us or on the public an interpretation of section 3.(2) which otherwise would not seem to have logical or linguistic weight.

[16] Administrative comments and responses in writing by Commission employees in response to this ministerial command do not constitute any reliable guide to the meaning of legislative language. They reflected, more simply and practically, their response to ministerial pronouncement, however misplaced. They certainly are not similar to government administrative rulings or guides issued to assist the public on the meaning of legislative language.

[17] The fact that there could have been legislative amendments of a housekeeping nature that would have made the applicants’ arguments absolutely untenable is not something that justifies placing on the words in issue the strained meaning urged by the applicants. It is true that the words of section 3.(2) which are in issue could have been removed, but then so could the opening language of section 3.(1) up to the point where they deal with amendment. But to make these changes would have consigned to memory, and complex ex post facto research, the basic fabric of how the Escarpment came to be, without adding anything, except support for the submission that history has to continue to speak, though in awkward expression of currency. We do not see that as any powerful argument in favour of distorting present meaning.

[18] There is no internal conflict, lack of coherence, or inability to interpret the legislative provisions as fitting together, given that they apply, in part, to different circumstances.

[19] In regard to legislative symmetry, it is not without importance that there are, and for some years have been in the Act, sections 6, 8 and 10, that provide a complete code as to how the issue of Plan amendment is to be dealt with in a fair and just way, with full opportunity for those touched by any amendment, whether in terms of boundaries of the Area or otherwise, to speak and be heard and to challenge anything put forward as part of an amendment package or single provision.

[20] A submission was made by government counsel that, assuming section 3.(2) was intended to cover a situation in which there was a change in boundary of the Area by ministerial order, the requirement should be read as directory only, and not imperative. This submission is based on principles set forth in cases referred to in Central Mortgage and Housing Corp. v. Co-operative College Residences, Inc. et al. (1975), 13 O.R. (2d) 394 at p. 407, and Re Carfrae Estates Ltd. and Stavert et al. (1976), 13 O.R. (2d) 537 at p. 539. While our comment is clearly obiter, taking into account those principles, we are not persuaded that the section 3.(2) provisions should be read as being directory only, even if such an interpretation were sought to be placed on them only in the limited context of an amendment to the order establishing the Area, in itself a somewhat unattractive alternative interpretation.

[21] This application is dismissed. We are prepared to receive written submissions on the subject of costs, if counsel are unable to agree. Any such submissions must be in our hands through the Toronto Divisional Court office not later than 30 days after the date of release of these reasons.

Coo J.

Gravely J.

Ellen Macdonald J.

DATE: December 11, 2002