COURT FILE NO.: 632/04
DATE: 20041217
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Duffin Capital Corporation, Applicant
-and-
The Minister of Municipal Affairs and Housing, Respondent
HEARD: December 14, 2004
BEFORE: Lane, J.
COUNSEL: Alan J. Lenczner Q.C. and Eli Lederman for the Applicant, responding
Jack. D. Coop and James Kendick, for the Respondent, moving party.
E N D O R S E M E N T
[1] This is a motion brought by the respondent Minister to adjourn the hearing of an application brought by the applicant on short notice. It is common ground that the hearing of the application ought not to proceed to-morrow as there has not been sufficient time for the respondent to prepare, due to the fact that service took place as recently as December 2, 2004. The lengthy hearing before me was confined to submissions as to what, if any, terms should be imposed on the Minister for the protection of the applicant while the application is pending. Accordingly, I adjourned the application upon terms to be determined by me in these reasons.
[2] The applicant is a landowner of lands in the City of Pickering in the Regional Municipality of Durham. The lands are primarily designated in the Official Plans of the two municipalities as agricultural lands. In Durham’s Plan they are ‘Permanent Agricultural Preserve’, ‘Major Open Space’ and, to a small extent, ‘Hamlet’. In Pickering’s they are largely ‘Agricultural’ with some areas ‘Natural Heritage’ and lesser areas with various designations. The lands are also subject to a Ministerial Zoning Order[^1] establishing an ‘Agricultural Zone’ and a ‘Greenbelt Conservation Zone’. Neither of these Zones permits dwellings unless used in connection with agriculture or on lots that existed on the day the Order came into effect. Greenbelt uses are confined to forestry, conservation and flood control.
[3] The lands are also subject to a second Ministerial Order[^2] which established a planning development area and directed that a provincial land use plan be developed by the process established in the Ontario Planning and Development Act, (OPDA). This procedure requires the Minister, as the first step, to cause an investigation and survey of the environmental, physical, social and economic conditions of the area affecting land use planning[^3]. The evidence on behalf of the Minister is that the process is still in that first step. The subsequent stages at which the OPDA mandates the provision of information to the public and then public participation have yet to be reached.[^4]
[4] The Greenbelt Protection Act 2004 established a moratorium until December 16, 2004, on new urban uses outside of existing urban areas in the ‘Greenbelt Study Area’, which area includes the applicant’s lands. As amended to date, the moratorium will expire on March 9, 2005.
[5] Presently before the Legislature is Bill 135, the proposed Greenbelt Act, 2004, which is before a Standing Committee and is expected to be reported back to the House no earlier than February 15, 2005. It gives the Cabinet the power to establish the Greenbelt Area by regulation. The draft Greenbelt Plan shows the applicant’s lands near the hamlet of Cherrywood as ‘Protected Countryside’. The ultimate designation will not be known until the Regulation is published, probably in March 2005.
[6] The evidence of the Minister, through Mr. Macleod, is that the OPDA process:
..would supersede the Greenbelt Plan designations and could carve out an exception to them, and therefore would be the ultimate determiner of future land designations in Cherrywood.
[7] This position is in accord with section 17 of Bill 135, the policy behind which was explained by Mr. Doyle of the Ministry in a public consultation session on November 8, 2004, as follows[^5]:
Firstly, the whole Rouge initiative that the provincial government and that the people of Ontario have been supporting, the Agricultural Preserve, both in Markham and Pickering, has been an integral part of the whole landscape out there. And I think both the Task Force and others recognize that, in terms of the location of the Pickering Agricultural Preserve. Notwithstanding that, the legislation and the plan basically say where the province is doing a more specific exercise, such as the planning exercise in Pickering, which deals with both Seaton and the Agricultural Preserve, that those exercises will take precedence if you will. So the Pickering exercise will continue and it will really dictate what the outcome of the Provincial governments response on the Pickering Agricultural Preserve will be.
[8] It is apparent from the evidence that there has been a policy for some time of establishing an agricultural preserve in the area under study; that current planning documents designate the applicant’s lands as part of permanent agricultural preserve; that the renewed planning process for these lands is in an early stage; and that further public participation, as required by the OPDA is intended as a future step.
[9] Against this background, the applicant brought its application seeking an order
(1) requiring the Minister to:
comply with OPDA by permitting the proposed plan to be prepared “without limitation”;
permit the public to participate in a meaningful way in the preparation of the plan;
refrain from submitting the plan to cabinet until the foregoing has been done; and
consider the Growth Management Study funded by Pickering and any other submissions made by the public regarding the plan;
and
(2) an order prohibiting the inclusion of the Cherrywood lands into the Greenbelt area until such time as the Minister has complied with his obligations under OPDA and a determination has been made that the Cherrywood lands ought to be included.
[10] The main complaint made by the applicant is that the Minister has directed the planners doing the OPDA planning that the province is “committed to preserving the Duffins-Rouge Agricultural Reserve and this should be considered a ‘given’ in the exercise.” This is said to be a breach of OPDA. There are also allegations that the Minister has breached OPDA by not permitting the applicants and other landowners, up to this time, to participate in a meaningful way in the preparation of the plan, contrary to the OPDA requirement that the Minister ensure the meaningful participation of the public. It is also said that OPDA mandates a ‘fair and open’ planning process and the Minister is not conducting such a process.
[11] The Minister’s position in the main application is summarized in its factum on this motion for the adjournment in these terms:
- The Applicant's Notice of Application states it is a landowner of 1500 acres of land in the City of Pickering which is part of the Duffins-Rouge Agricultural Preserve (the DRAP). Those lands are primarily designated agricultural under the City's Official Plan. They are primarily designated "Permanent Agricultural Reserve" in the Region of Durham Official Plan. They are subject to agricultural easements. They are also subject to a Minister's zoning order, made by the previous government, issued pursuant to section 47 of the Planning Act, which has determined that the lands shall only be used for agricultural and other limited purposes.
Affidavit of Scott MacLeod, paras. 6 and 7, Motion Record, Tab 2
- The Minister's zoning order has never been legally challenged. The establishment of an OPDA development plan does not supersede a Minister's zoning order. The Minister has the discretion under the Planning Act to amend or revoke a Ministerial Zoning Order. The Minister's decision in this regard can be appealed to the Ontario Municipal Board.
Affidavit of Scott MacLeod, para. 8, Motion Record, Tab 2
[12] In short, the use of these lands for agricultural purposes has been the policy of the previous, as well as the present, government; the OPDA plan, whatever it says about the lands, will not revoke the Ministerial Order; and a refusal to revoke the order can be appealed to the Ontario Municipal Board.
[13] As noted, the parties agree that the application must be adjourned. The issue before me is the terms. The respondent ministry has proposed an adjournment until a normal litigation process has been completed with a hearing in or about May, 2005. It says that there is no urgency because there is no evidence that any potential cabinet decision on the Greenbelt area or the OPDA plan would worsen the applicant’s existing planning designation. If there were such an adverse impact, the Court can grant declaratory relief in effect reversing the decisions.
[14] The applicant submits:
If Cabinet is permitted to include Cherrywood in the Greenbelt pending the determination of the within Application, the Applicant will suffer irreparable harm and will be significantly prejudiced. It will not be entitled to seek judicial review of the legislative decision of Cabinet to include Cherrywood in the Greenbelt Act and regulation, notwithstanding the fact that this decision will be based upon the results of an OPDA process which the Applicant has demonstrated contravened the OPDA and were skewed against it from the outset.
The timetable proposed by the Minister is wholly unsatisfactory as it would permit Cabinet to designate Cherrywood to be in the Greenbelt Area before the Divisional Court has had an opportunity to rule on the issues raised in the within Application. The timetable proposed by the Minister would therefore prejudice the Applicant to the extent that any procedural relief granted by the Court would be meaningless.
[15] The parties argued the terms issue on the framework of issues established for interlocutory injunctions in RJR-MacDonald.[^6]
[16] On the question of whether there is a serious issue to be tried, the Minister submitted that there is no breach of OPDA when the Minister advises the planners that there is already a government policy in place in respect of certain lands. The Minister is entitled to make the policy. This is not only the role of the Minister in general terms, but is confirmed by section 4(5) of OPDA. Section 4 sets out the process of proposing and preparing a development plan, the public notices to be given and the public consultations required and the process of further consultation if the Minister determines that modifications to the proposed plan are desirable. But the final determination is the Minister’s:
4(5) After considering the submissions received under subsection (4), the Minister may make such modifications to the proposed development plan as the Minister considers desirable.
[17] It was said that this section makes clear that the Minister is not analogous to an independent tribunal hearing a dispute between a landowner and the government and making a decision upon the evidence in a judicial or quasi-judicial manner. The final decision is vested in the Minister as to the content of the plan and his decision may be based upon policy considerations.
[18] I agree with the Minister that prima facie, no contravention of the OPDA has been made out by excluding the applicant’s lands from the study. Under OPDA, the Minister has a discretion to study all or any part of a development planning area. The Minister has a discretion to confer with those persons whom he chooses, not an obligation to confer with everyone. Although subsection 4(1) of the Act does require the Minister to ensure that the "public has an opportunity to participate in the preparation of a proposed plan", the uncontradicted evidence is that the provisions of the OPDA which provide for that public participation (subsections 4(2) to (7) of the OPDA) have yet to be reached in the continuing process.
[19] The applicant contended that the scheme of the Act was that a study should be conducted and that the Minister erred in giving policy direction to the planners. He should have allowed an independent study to take place and allowed the public a meaningful role in developing the plan. The public role is not meaningful if the decision has already been made.
[20] In my view, the applicants will have an uphill fight to get over section 4(5), and the Minister’s extensive statutory discretion as to what is to be studied. Nevertheless, the threshold is low, and I cannot say the issues raised are frivolous or vexatious. That being the case, there is a serious issue to be tried within the principles of RJR. [^7]
[21] The applicants submit that they will suffer irreparable harm because at a later stage they will not be able to judicially review the decision of cabinet once it has designated the lands as Greenbelt lands for agricultural purposes only. In my view, the land is already clearly so designated by the Ministerial order. There is a process in place for seeking revocation of that order and for an OMB hearing on the refusal to revoke. The OMB is a specialist tribunal with an expertise not possessed by the court in planning matters and such a review, based on planning principles seems to me to be an answer to the claim of irreparable harm.
[22] The applicant submits that the balance of convenience favours its position that an early date is necessary. As the moratorium has been extended to March 9, there is no reason why the hearing cannot be held by then, even allowing for time for full preparation.
[23] The Minister submits that there is no advantage to the applicant in an early hearing, given that the plan is merely in draft form and no one can know what will be its final form. The court cannot assume that the result will impose any further or different planning restriction on the applicant’s lands, which are, in any event, already encumbered with several planning documents restricting the use to agricultural.
[24] In my view, the balance of convenience does not favour the court interfering with the planning process in favour of the applicant when there is no evidence of any plan to make some use of the lands in the near future which is being forestalled. On the contrary, the balance of convenience favours allowing the process to proceed.
[25] This aspect of the matter is closely connected to the question of prematurity, to which I now turn.
[26] The Minister contends that the entire application is premature. The process is in its early stages and should be allowed to be completed and the review sought by the applicant should take place upon the entire record. The procedural steps required under OPDA have not yet been reached in the process. The Minister submits:
- The applicant's request for an expedited hearing urges the court to adjudicate the question of procedural fairness prematurely, before the procedural fairness provisions of the OPDA have been triggered. To do so would result in a court decision without the benefit of any evidence of the steps taken pursuant to the statutorily prescribed procedural requirements for natural justice (notice, written submissions, consideration, summary, recommendation to Cabinet, and Cabinet decision). The court would not only be deprived of a full record of the proceedings, it would be deprived of the most important portion of the record.
- Furthermore, if the court hears the matter prematurely, as urged by the Applicant, it would deprive the Minister of any opportunity to cure the alleged existing deficiencies in the OPDA process, thereby rendering the application moot. In addition, should the Minister or Cabinet ultimately accept the Applicant's submissions, either in whole or in part, the application would be rendered moot.
[27] This court has frequently made it clear that it does not intervene in ongoing matters[^8]. The applicant contends that this is one of the rare cases where the court does interfere because it is clear that the process is irredeemably flawed from the outset. This is a matter that will no doubt occupy the attention of the panel at the hearing. At this stage, I am not persuaded that the Minister is not allowed to do as he did and advise the planners that there is an existing policy as to certain lands, which they are not free to alter. The process may well not be flawed at all. I think that the court should not intervene at this stage where there is real doubt about the alleged flaw and there are still many opportunities for the applicant to make its views known to the planners as the process reaches the appropriate stage.
[28] Finally, I turn to the relief sought by the applicant as a term of this adjournment. In the Application Record, the relief claimed is:
An Order prohibiting the inclusion of the Cherrywood lands into the Greenbelt Area until such time as the Minister has complied with his obligations pursuant to the OPDA and a determination is made that the Cherrywood lands ought to be included.
[29] Counsel for the applicant asked in submissions for a ‘temporary exclusion’ of the applicant’s 1500 acres from the Greenbelt area pending the resolution of this dispute. Put into legal terms, this amounts to enjoining the Cabinet from enacting a Regulation which is not alleged to be ultra vires or contrary to the Charter. The wisdom of, or the motives for, enacting a Regulation are not justiciable issues[^9].
[30] Counsel for the Minister pointed out that it is not the allegedly flawed process which the applicant seeks to enjoin, but the enactment of a Regulation which the Minister can recommend to Cabinet, and Cabinet can enact, regardless of the outcome of the planning exercise. Section 4(7) of OPDA reads:
(7) The Lieutenant Governor in Council may approve the plan in whole or in part or may approve it with such modifications as the Lieutenant Governor in Council considers desirable, and the development plan comes into effect on the day specified by the Lieutenant Governor in Council.
[31] Indeed, to some extent the objective of such a Regulation has already been achieved by the Ministerial Order already in place on these lands under other legislation.
[32] The relief sought cannot be granted for another reason. Section 14 of the Proceedings Against the Crown Act[^10] provides that where, in a proceeding against the Crown or a servant of the Crown, relief is sought amounting to an injunction or specific performance, the court shall not grant an injunction or specific performance but in lieu thereof may make an order declaratory of the rights of the parties. Except in very limited circumstances involving deliberate flouting of established law, interim declarations should not be granted[^11]. The effect of the order sought would be to prevent the Cabinet from exercising its constitutional power to enact Regulations on an interlocutory basis without a full hearing on the merits, when the maximum relief available even after such a hearing is declaratory only.
[33] For these reasons, I refuse to impose any terms upon the Minister in connection with the adjournment. The application is, therefore, adjourned to a date to be fixed by the Registrar in the ordinary course and upon the consent of the parties or further order.
[34] The minister will have costs of this motion to be agreed or fixed by me on receipt of written submissions within 30 days.
Lane, J.
DATE: December 17, 2004
[^1]: Filed with the Registrar of Regulations, April 22, 2003, pursuant to the Planning Act R.S. O. 1990, s.47. [^2]: April 17, 2003, amended March 24, 2004, both pursuant to the Ontario Planning and Development Act, 1994, section 2(1) [^3]: Section 2(3)(a) of ODPA. [^4]: Affidavit of MacLeod, Motion Record, tab 3, paragraphs 9, 10, 11. [^5]: Ibid. para. 21 and Exhibit G, Motion Record page 94. [^6]: RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 1994 117 (SCC), 111 D.L.R. (4th) 385. [^7]: See page 401 and the quotation from Lord Diplock in American Cyanamid. [^8]: Ontario College of Art v Ontario (Human Rights Comm’n) (1993) 1993 3430 (ON SCDC), 11 O.R.(3rd) 798 (Div. Ct.); Howe v I.C.A.O. (1994) 1994 3360 (ON CA), 19 O.R.(3rd) 483, 490 (C.A.) [^9]: Ontario Federation of Anglers and Hunters v Ontario, 2002 41606 (ON CA), [2002] O.J. No. 1445 (C.A.) para. 49; Thorne’s Hardware Ltd. v The Queen, 1983 20 (SCC), [1983] 1 S.C.R. 106, 112-3. [^10]: Proceedings Against the Crown Act, R.S.O.. 1990, c. P.27, s.14. [^11]: Loomis v. Ontario 1993 8625 (ON SC), [1993] O.J. No. 2788 (Div. Ct.); Figeroa v. Attorney General of Canada 1997 16244 (ON SC), [1997] O.J. No. 1998 (Div. Ct).