Ontario Superior Court of Justice, Divisional Court

Court File No. 530/2003

Date: 2004-01-28

MacFarland, McCombs and Wilson JJ.

Counsel:

Written reasons received: May 5, 2004

Stanley Makuch and Signe Leisk, for appellant.

Timothy Hill and Eileen Costello, for respondent.

By the Court:—

Overview

[1] This is an appeal from an August 26, 2002 order and decision of the Ontario Municipal Board (the "Board" or the "OMB") [reported 44 O.M.B.R. 309]. The Board's decision repealed interim control by-law 24-2002, which had been passed on February 20, 2002 by the appellant, the Corporation of the City of Oshawa (the "City"). Leave to appeal was granted by Cullity J., who held that the appeal raises a question of law of sufficient importance to be placed before this court, and that there is good reason to doubt the correctness of the OMB's decision.

[2] The City's interim control by-law imposed an 11-month prohibition on the establishment in the City's Central Business District ("CBD") of clinics for the treatment of "opioid-dependent, and/or other narcotic-dependent, individuals". The by-law had been passed on February 20, 2002, for the purpose of enabling a planning study to be undertaken to determine whether a methadone treatment clinic was appropriate land use for that location.

Legislative Authority to Pass an Interim Control By-law

[3] The by-law was passed under the authority of s. 38 of the Planning Act, R.S.O. 1990, c. P.13, which provides in part, as follows:

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.

(2) The council of the municipality may amend an interim control by-law to extend the period of time during which it will be in effect, provided the total period of time does not exceed two years from the date of the passing of the interim control by-law.

Events Leading up to the Passing of the Interim Control By-law

[4] In granting leave to appeal, Cullity J. set out the history of the enactment of the interim control by-law. The following is a summary of his narration.

[5] The interim control by-law was passed as a result of ratepayer resistance to the respondent's proposal to use premises it had purchased in downtown Oshawa for the establishment and operation of a methadone clinic.

[6] Early in 2001 the respondent began making interior alterations to its building without a building permit and, on February 11, 2001, a stop work order was issued by the City.

(i) The Inquiry by the Operational Services Committee

[7] On February 18, 2002, the City's Operational Services Committee ("OSC") inquired into the proposed use of the premises. The OSC heard from representatives of the respondent who explained the proposed use. On the other side of the issue, a group of downtown business owners and operators expressed their concern that the location of a methadone clinic in the downtown core would hurt their businesses at a time when the City had specific policies and initiatives to revitalize the Central Business District ("CBD"). As well, a representative of the Downtown Oshawa Board of Management questioned the compatibility of the proposed use with existing downtown businesses in the context of a planning document adopted by City Council as its strategy for revitalization of the downtown area ("Vision 2000"). The OSC also heard from a Durham police officer who advised that although he had not had safety concerns about the methadone clinic operated by the respondent at another location, he would have concerns if the clinic were relocated to the city core as proposed. The committee also had before it legal opinions of two solicitors representing the Downtown Oshawa Board of Management advising that in their opinion, the appropriate course of action would be to direct a planning study and enact an interim control by-law prohibiting the proposed use while the study was conducted.

[8] The OSC decided that the issues raised related to land use planning, and referred the matter to the City's Development Services Committee ("DSC").

(ii) The Hearing before the Development Services Committee

[9] Two days later, on February 20, 2002, the DSC met and considered the issues. The DSC heard the views of many individuals concerned about the impact of the proposed relocation in the CBD, and recommended that City Council direct the Commissioner of Development Services to prepare a study of the City's land use policies in the CBD in order to determine whether the establishment in the downtown of clinics for the treatment of opioid-dependent persons and other narcotic-dependent persons should be permitted. The DSC also recommended that an interim control by-law be enacted, prohibiting the establishment of clinics for the treatment of such persons in the CBD until the planning study had been completed.

(iii) The Passing of the By-Law and Council's Adoption of the Terms of Reference for the Planning Study

[10] City Council met later that day, accepted the DSC's recommendations, and passed the interim control by-law. The Commissioner of Development Services then prepared draft terms of reference for the planning study and these were adopted by council on April 8, 2002.

The Appeal to the Ontario Municipal Board

[11] The respondent appealed under s. 34(19) of the Planning Act to the OMB on the ground that the interim control by-law was not supported by a planning rationale. It was also alleged that the by-law was discriminatory and was passed in bad faith.

[12] At the appeal hearing, the Board heard five days of evidence and argument. The respondent Loralgia presented evidence from its existing clinic's medical director, from its principal, and from a land use planner. The appellant City called a professional land use planner, a criminologist, and a land use planning economist.[^1]

The Decision of the OMB

[13] In allowing the appeal and ordering the repeal of the interim control by-law, the OMB considered the evidence and argument, and concluded, at p. 5 of its decision [p. 315 O.M.B.R.], that "there is no planning rationale behind the authorizing resolution and the Interim Control By-law".

Analysis and Conclusions

[14] The wide power of the OMB to review interim control by-laws was confirmed in Equity Waste Management of Canada v. Halton Hills (Town) (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321 (C.A.). The court observed, at pp. 332-33 that:

... in most cases, review of interim control by-laws should take place before the OMB . . .

The OMB is an expert planning tribunal and is obviously best suited to decide the planning issues raised by municipal by-laws.

Indeed, whether the by-law had a legitimate planning rationale lies at the heart of the OMB's expertise. [Emphasis added.)

[15] Clearly, therefore, the OMB had jurisdiction to determine whether the interim control by-law had a legitimate planning rationale. Following a five-day hearing, the OMB, in its eight-page decision, concluded that there was "no [legitimate] planning rationale behind the authorizing resolution and the Interim Control By-law" [p. 315 O.M.B.R.].

[16] The appellant City argues that the OMB exceeded its jurisdiction and/or erred in law by placing the onus on the City to justify a permanent restrictive zoning by-law, rather than the temporary interim control by-law that was under consideration. We agree that the OMB would have exceeded its jurisdiction if it had required the City to satisfy it that a permanent restrictive zoning by-law was appropriate. The issue that the OMB was empowered to determine was whether there was a legitimate planning rationale for the interim control by-law, rather than for a permanent by-law banning methadone clinics in the proposed location.

[17] At p. 5 of its decision [p. 314 O.M.B.R.], the OMB correctly identified the issue it was empowered to consider:

In addressing the appropriateness of an Interim Control By-law, the Board is guided by the principles enunciated by the courts, in particular the Court of Appeal in [Equity Waste Management, supra]. Interim Control By-laws are a remedy to be used where there are legitimate planning concerns that need to be dealt with immediately. In effect, an Interim Control By-law affords a municipality some breathing space to study the situation. However, there has to be some certainty in the planning process and therefore, before a municipality deploys such a power, it must have a valid planning rationale. [Emphasis added.]

[18] It can be seen from the above passage that the OMB was alive to the important purpose of interim control by-laws identified in Equity Waste Management, supra, to provide breathing space for the purpose of studying the situation. Where, however, there is no legitimate planning rationale for passing an interim control by-law, the OMB may direct that it be repealed. This is what the OMB decided in this case, and therefore, we are unable to conclude that it exceeded its jurisdiction by placing an inappropriate onus upon the appellant City.

[19] The board had jurisdiction to determine the issue as to whether there was a legitimate planning rationale for the subject by-law. Moreover, the board, was entitled to substitute its judgment for that of the municipality: Country Pork Ltd. v. Ashfield (Township) (2002), 2002 41578 (ON CA), 60 O.R. (3d) 529 (C.A.), at pp. 541-43.

[20] The appropriate standard of review of a decision of the OMB made within its jurisdiction is one of reasonableness: Joia Investments Inc. v. Town of Collingwood (unreported, released December 18, 2003) (Ont. Div. Ct.). This court is not empowered to usurp the Board's legitimate policy-making function by substituting its opinion for that of the Board. See, for example, Shanahan v. Russell (2000), 2000 17036 (ON CA), 41 O.M.B.R. 305 at pp. 316-17, 196 D.L.R. (4th) 558 sub nom. Dickinson v. Toronto (City) (C.A.). Moreover, as the Supreme Court of Canada has recently observed, in Law Society of New Brunswick v. Ryan, 2003 SCC 20 [reported 223 D.L.R. (4th) 577], at paras. 43-56, where the standard of review is that of reasonableness, a court may not interfere unless there is no line of analysis within the Board's reasons that could reasonably have led the Board to its conclusion. If any of the reasons sufficient to support the conclusion can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere, even if the court holds a different view of the matter.

[21] In this case, we are all of the view that the Board acted within its jurisdiction, Moreover, it exercised its legitimate policy-making function by applying well-established policies that it has developed over the years to deal with the many competing issues related to interim control by-laws.[^2] We are unable to conclude that the Board decision was unreasonable.

[22] In the result, the appeal is dismissed.

[23] Appeal dismissed.

[^1]: OMB decision dated August 26, 2002, p. 4 [p. 314 O.M.B.R.].

[^2]: See Decisions of the Ontario Municipal Board in Gilbert v. Town of Oakville, April 7, 1986 [reported 19 O.M.B.R. 168], and Re Township of Hamilton Interim Control By-law 92-65, April 23, 1993 (Board File No. R 920566) [reported 29 O.M.B.R. 129].