COURT FILE NO.: 142/05

DATE: 20060301

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, GRAVELY AND POWER JJ.

B E T W E E N:

ATTORNEY GENERAL OF CANADA and GREATER TORONTO AIRPORTS AUTHORITY

Applicants

• and -

BERRYWOODS FARMS INC., BITONDO’S MARKET LIMITED, THE CORPORATION OF THE CITY OF PICKERING, THE REGIONAL MUNICIPALITY OF DURHAM

AND THE ONTARIO MUNICIPAL BOARD

Respondents

M. Jamal, S.B. Stein and Susan Borsic-Drummond, for the Greater Toronto Airports Authority

I.R. Dick for Attorney General of Canada

T.R. Lederer, C.M. Barnett and L.K. Bissett for Berrywoods Farms Inc.

J. Coop and K. Chantzis for Attorney General of Ontario

M. Singh for Regional Municipality of Durham

J. Reble, for the City of Pickering

No one for Bitondo’s Market Limited

No one for Ontario Municipal Board

Heard at Toronto: January 11 & 12, 2006

THE COURT:

I. Nature of Proceedings

[1] On April 11, 2005, Transport Canada and Greater Toronto Airports Authority (GTAA) launched an application for judicial review under the Judicial Review Procedure Act, R.S.O. 1990, c. J. 1 (JRPA) and seek:

(a) a declaration that various applications, dated March 19, 2004, seeking planning approvals, filed by Berrywoods Farms Inc. (Berrywoods) with the Corporation of the City of Pickering (Pickering) and the Regional Municipality of Durham (Durham), are nullities and of no effect by reason of the Greenbelt Protection Act, 2004, S.O. 2004, c. 9 (GPA 2004);

(b) a declaration that all decisions taken by Pickering and Durham under the Planning Act, R.S.O. 1990, c. P. 13 and/or Strong Communities (Planning Amendment Act), 2004, S.O. 2004, c. 18 (SCPAA), related to the processing of the Berrywoods’ applications are nullities and of no effect;

(c) an order in the nature of certiorari quashing all “decisions” regarding Berrywoods' applications taken by either municipality pursuant to the Planning Act;

(d) a declaration that no statutory rights of appeal to the Ontario Municipal Board (OMB) under the Planning Act and/or the SCPAA arose in relation to the impugned Berrywoods’ applications.

[2] Title to the “Berrywoods’ lands”, which are located close to the “airport lands”, reside in Bitondo’s Market Limited with existing uses of vacant and agricultural land. The Bitondo’s lands are subject to an agreement of purchase and sale to Berrywoods. As counsel for Berrywoods emphasized, there is no airport at this time and there may never be an airport on this site – it is a potential airport site.

[3] Berrywoods is a land developer and proposes to develop a residential subdivision on the lands. It filed various applications for development with Pickering and Durham on March 19, 2004. The development would include 381 single-family units and a minor amount of commercial and other uses.

[4] Pickering has a majority of the “airport lands” and all of the Berrywoods’ lands within its borders. The position taken by Pickering on this judicial review application is “that the validity of your clients’ (Berrywoods’) application is a matter that the OMB should decide”.

[5] Durham is the upper tier of a two-tier system of municipal government of which municipalities, such as Pickering, form the lower tier of municipal government. Durham supports the Applicants’ position.

[6] The Government of Ontario is represented by counsel for the Attorney General, who, under the provisions of s. 9(4) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (JRPA), is “entitled as of right to be heard in person or by counsel on the application”. The Attorney General for Ontario supports the position taken by the Applicants on this judicial review.

[7] On July 4, 2004, when Durham and Pickering failed to make a decision on the Berrywoods’ applications within the 90 day period formerly stipulated under the Planning Act, Berrywoods “appealed” the deemed refusals of Durham and Pickering to the OMB.

[8] On June 29, 2005, a panel of the OMB presided over a pre-hearing conference in respect of “the appeals”. A copy of the Application Record of this judicial review application was provided to the OMB panel.

[9] On October 27, 2005, the Respondents were served with a copy of the proposed amendments to the Notice of Application of Judicial Review (142/05), returnable on the date when the Judicial Review application was scheduled for hearing, namely January 11, 2006 (not January 11, 2005 as set out in the Notice of Motion and “Amended” Notice of Motion).

[10] The Notice of Motion seeking amendments asks for:

(a) an order that the name “Transport Canada” be removed as an applicant and replaced with: “Attorney General of Canada on behalf of Her Majesty the Queen in Right of Canada”,

(b) an order that the OMB be added as a respondent, and

(c) an order prohibiting OMB from hearing or in any way dealing with the Berrywoods’ “appeals” concerning its March 19, 2004 applications to Pickering and Durham.

[11] The Notice of Motion, with the proposed amendment and record, was served on OMB on October 28, 2005. The OMB, by letter, has indicated that it does not object to being named as a respondent and that it would not be filing any appearance to the judicial review application. The OMB has adjourned the hearing of Berrywoods’ “appeals” to March 20, 2006 and scheduled an eight (8) week hearing commencing on that date.

[12] In his November 4, 2005 letter, counsel for Berrywoods objects to and does not consent to the proposed amendments.

[13] On November 11, 2005, the Applicants served their joint factum and Supplementary Application Record, which included the notice of the proposed amendments. In his letter of November 15, 2005, Mr. Lederer advised that he did not consent to the proposed amendments and the Applicant would have to seek a court order. Mr. Lederer did not file any material contra nor did he file a responding factum on the motion to amend.

[14] At the opening of argument, counsel for the Applicants sought the amendments and Mr. Lederer asked that the amendment submissions be blended into the total submissions. His request was granted.

[15] In our view, the combined effect of rule 14.09, rule 26.01, rule 1.04(2) and rule 5.04(2) is that the amendments requested “shall” be granted unless prejudice would result to the respondents that could not be remedied by costs or an adjournment. We see no prejudice of any kind to any respondent arising out of the proposed amendments. No respondent asked for an adjournment.

[16] The requested amendments are granted and the style of cause and Notice of Application are amended as requested in the Notice of Motion, dated December 16, 2005.

II. The Parties and Background

[17] In 1972, the Government of Canada expropriated approximately 18,600 acres of land at a cost of $120 million for a possible airport at Pickering, Ontario. Transport Canada administers the “airport lands” with support from the Ministry of Public Works and Government Services.

[18] A large portion of those lands is within the Oak Ridges Moraine and the Government of Canada has promised to maintain these lands as open space. A large portion of the land on the western part of the site contains a sensitive tributary of the Rouge River system – this too, the Government of Canada has promised to preserve. Therefore, any new airport on these lands will have to be located in the southeast part of the “airport lands”.

[19] On March 3, 1972, the Ontario Minister of Municipal Affairs and Housing filed O. Reg. 102/72, a zoning order, under the Planning Act, creating a buffer zone for the Pickering Airport outside the “airport lands”. The order is still in place.

[20] Berrywoods acknowledges that the 1972 Ontario Zoning Order applies to its lands and that Berrywoods’ proposed housing project is not permitted on its lands (currently vacant and agricultural) without an amendment to the 1972 Zoning Order.

[21] Counsel for the GTAA advise that any proposed airport at this site will be a “regional airport” and not an “international airport”.

[22] On March 3, 1993, GTAA was incorporated under the Canada Corporations Act as a local, private, not-for-profit airport authority. It is responsible for developing a network of airports for the Greater Toronto Area. It manages and operates the Toronto Pearson International Airport and will be responsible for the construction, management and operation of any future airport on the Pickering “airport lands”.

[23] On April 2001, the Minister of Transport asked GTAA to plan and design a new airport on the “airport lands” and to carry out a federal environmental assessment review process.

[24] By Order in Council: SOR/2001-297, the “airport lands” were declared an “airport site” under the Aeronautics Act and “required for use as an airport”.

[25] On November 17, 2004, GTAA made public a draft plan report for the Pickering Airport.

[26] The Berrywoods’ lands are located directly under the extended centre line of the proposed southeast/west runway of the proposed airport. Berrywoods’ proposed housing project would be directly under the flight path of aircraft. Aircraft landing from the east would pass approximately 1,000 feet above the proposed housing project.

[27] In October 2003, a new Ontario Government took office.

[28] On December 15, 2003, the Government of Ontario introduced Bill 26 – Strong Communities (Planning Amendment Act), 2004, S.O. 2004, c. 18 (SCPAA). This statute curtails the powers of the OMB and places land-use decision making back into the hands of local governments. This statute prohibits appeals to the OMB of applications:

(a) to alter the boundary of an “area of settlement” in a municipality, or

(b) to establish a new “area of settlement” in a municipality.

These provisions were made retroactive to December 15, 2003, the date on which the legislation was introduced in the Legislature.

[29] On December 16, 2003, the Government of Ontario introduced the Greenbelt Protection Act, 2004, S.O. 2004, c. 9 (GPA 2004). The purpose of GPA 2004 was to contain urban sprawl by freezing urban development of rural and agricultural land in the Golden Horseshoe pending study and the establishment of a Greenbelt of protected countryside. The statute was given Royal Assent on June 24, 2004 and made retroactive to December 16, 2003, the date it was introduced in the Legislature.

[30] The GPA 2004 imposes a development freeze in two (2) ways:

(a) it prohibits persons from applying to municipalities for approval for urban development of lands outside “urban settlement areas”, a term defined in the GPA 2004, and

(b) it prohibits municipalities from, among other things, granting approvals of land outside an “urban settlement area.

Thus, development was frozen unless already authorized.

[31] The critical factor to qualify as an “urban settlement area”, in the definition set out in GPA 2004, is that the land must be “designated” in an official plan.

[32] The GPA 2004 defines an “urban settlement area” this way:

“urban settlement area” means any area of land that, on December 16, 2003, was designated in any official plan as an urban area or a rural settlement area, including, but not limited to, areas designated as urban areas, urban policy areas, towns, villages, hamlets, rural clusters, rural settlement areas, urban systems, rural service centres or future urban use areas.

[33] Thus, the freeze does not apply to land already designated as either an “urban area” or a “rural settlement area”, such as those listed in the definition of “urban settlement area”.

[34] It will be observed that the SCPAA uses the phrase “area of settlement” and not the phrase “urban settlement area”. The SCPAA defines “area of settlement” as follows:

“area of settlement” means an area of land designated in an official plan for urban uses including urban areas, urban policy areas, towns, villages, hamlets, rural clusters, rural settlement areas, urban systems, rural service centres or future urban use areas, or as otherwise prescribed by regulation.

[35] The Official Report of Debates of September 29, 2004 of the Ontario Legislative Assembly, Standing Committee on General Government, discloses that the phrases “urban settled area” and “area of settlement” were intended to have the same scope and cover the same geographic areas. Counsel agree that the definitions are, essentially, the same. The word “urban” was removed from the SCPAA definition because it was thought to cause confusion by implying a certain population level.

[36] Also on December 16, 2003, the Government of Ontario imposed an immediate development freeze by Ont. Reg. 432/03 made under the Planning Act. The regulation was to ensure that no new urban development was approved by a municipality while the enactment of the GPA 2004 was pending in the Legislature. The December 16, 2003 regulation did not affect the Berrywoods’ lands because they were still covered by the 1972 Zoning Order.

[37] The GPA 2004 was intended to impose a temporary urban development freeze to allow the Government of Ontario to study what lands should be included within a protected Greenbelt area. The study was completed in just over a year and the Government of Ontario passed the Greenbelt Act, 2005, S.O. 2005, c. 1 (GPA 2005) to replace GPA 2004. GPA 2005 received Royal Assent on February 24, 2005 and was made retroactive to December 16, 2004.

[38] The Lieutenant Governor in Council then established the final Greenbelt Plan (Order-in-Council 208/2005) and designated the Greenbelt area by regulation (Ont. Reg. 59/05). The Greenbelt Plan and the regulation designating the Greenbelt Area were also made retroactive to December 16, 2004.

[39] The GPA 2004 was repealed on March 9, 2005.

[40] Gregory Daly, Berrywoods’ planner, acknowledges that approximately the bottom one-third of Berrywoods’ lands involved in this judicial review are now designated as “protective countryside” under the Greenbelt Plan and, therefore, no urban development may take place on those lands (except for minor ancillary uses associated with existing housing and farming). Berrywoods acknowledges that if the Greenbelt Act, 2005, applies to its lands, approximately one-third of its lands cannot be developed.

IV. Is Judicial Review available to the Applicants?

[41] In Shell Canada Products v. Vancouver (City), 1994 115 (SCC), [1994] 1 S.C.R. 231, 273-4, the court said that any exercise of a municipality’s powers is reviewable for the purpose of determining whether the municipality’s actions were intra vires. Sopinka J. noted that this is usually done by way of motion to quash (certiorari) or by way of a declaration.

See also: MacPump Developments Ltd. v. Sarnia (City) (1994), 1994 3448 (ON CA), 20 O.R. (3d) 755, 760 (Ont. C.A.); 1161931 Ontario Inc. v. Toronto (Metropolitan) Police Services Board, [2000] O.J. No. 3326 at para. [1] (Div. Ct.).

[42] Although s. 96(4) of the Ontario Municipal Board Act, R.S.O. 1990, c. O. 28 (OMBA), purports to eliminate judicial review by the Superior Court, it cannot and does not do so. See: 156621 Canada Ltd. v. Ottawa (City), [2003] O.J. No. 5375 at paras. [1], [2], [7] and [10] (Div. Ct.).

In Crevier v. Québec (A.G.), 1981 30 (SCC), [1981] 2 S.C.R. 220, 234, 236, Laskin C.J.C. said:

“…a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction…”.

[43] Counsel for Berrywoods questioned the Divisional Court’s jurisdiction to grant “declarations” as requested in the Notice of Application for judicial review.

[44] The Judicial Review Procedure Act, R.S.O. 1990, c. J. 1 (JRPA) provides:

1. In this Act,

“statutory power” means a power or right conferred by or under a statute,

(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,

(b) to exercise a statutory power of decision,

(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,

(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party; (“competence légale”)

“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,

2. (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

3. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

4. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

[45] In my view, Pickering, Durham and the OMB purported to exercise “statutory powers of decision” under various statutes in relation to the Berrywoods applications and thus became subject to a declaration by the Divisional Court under s. 2(1) 2. of the JRPA “in relation to the exercise, refusal to exercise or proposed purported exercise of a statutory power”. See: Re Lamoureux and Registrar of Motor Vehicles, 1972 607 (ON CA), [1973] 2 O.R. 28, 31-32 (Ont. C.A.); Re Service Employees International Union, Local 204 et al. (1984), 1984 2112 (ON CA), 48 O.R. (2d) 225, 230-234.

V. Standard of Review

[46] This judicial review application raises the following jurisdictional issues:

(a) whether the actions/decisions/absence of decisions with reference to the Berrywoods’ applications by Pickering and Durham were ultra vires those municipalities, and

(b) whether any appeals to the OMB were available from the actions/decisions/absence of decisions of the same municipalities.

[47] Each issue is one of jurisdiction. Each is reviewable on a standard of correctness. See: United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485 at para. [5]; Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342, at para. [29].

VI. Legal Effect of the GPA 2004 and SCPAA on Berrywoods’ Applications

[48] In order to escape the freeze set out in GPA 2004, Berrywoods must show that the lands in its applications came within the definition of “urban settlement area” as defined in s. 1 of GPA 2004. Berrywoods’ 205.3 hectares do not come within the definition.

[49] Berrywoods’ March 19, 2004 application to Ontario Minister of Municipal Affairs and Housing, speaks of its lands being:

(a) “adjacent to Greenwood Hamlet” and

(b) “proposed expansion to hamlet of Greenwood for construction of 381 un its”

It is clear that the hamlet of Greenwood falls within the definition of “urban settlement area”.

[50] Berrywoods’ March 19, 2004 application to Pickering to amend Pickering’s Official Plan refers to “expansion of the hamlet of Greenwood affecting 205.3 hectares of land in the vicinity of the existing hamlet”.

[51] Berrywoods’ March 19, 2004 application to Pickering to amend Pickering’s zoning by-law to re-zone its lands from agricultural to primarily residential and open space zone, states:

“The lands are located immediately adjacent to the Hamlet of Greenwood” and requires “an expansion to the Hamlet of Greenwood affecting 205.3 hectares of land in the vicinity of the existing hamlet”.

[52] Berrywoods’ application to Pickering for approval of a draft plan of subdivision for the 381 unit housing project, states:

“The lands are located immediately adjacent to the Hamlet of Greenwood” and requires “an expansion to the Hamlet of Greenwood affecting 205.3 hectares of land in the vicinity of the existing hamlet”.

[53] Berrywoods’ March 19, 2004 application to Durham seeking an amendment to its Official Plan to allow Berrywoods to “hook up” to the regional facilities, states:

…lands are located immediately adjacent to the Hamlet of Greenwood and the application seeks to “develop lands within an expanded Greenwood hamlet which are “adjacent to Greenwood Hamlet”.

[54] Nowhere does Berrywoods state to any municipality: “our lands are designated as an urban/rural settlement area in your official plan”.

[55] Berrywoods’ applications were made in March 2004. The applications were made after December 16, 2003. As of March 2004, the land was not designated “urban settlement area” lands in any official plan. Therefore, under s. 5(3) of the GPA 2004, the applications had “no effect” – that is: they are void, nullities, they never happened, they never existed.

[56] With the applications being nullities, logic dictates that there is nothing to “appeal” to the OMB. In addition, the SCPAA, in force as of December 15, 2003, states in s. 4(7) and s. 6(2) and s. 11(3):

[…] a person or public body may not appeal to the Municipal Board in respect of all or any part of a requested amendment if the amendment or part of the amendment proposes to alter all or part of the boundary of an area of settlement in a municipality or to establish a new area of settlement in a municipality.

[57] We are of the view that, in law, there are no “applications” and, it follows, there is nothing before the OMB resulting from those non-existent applications of Berrywoods.

[58] Berrywoods’ applications were not “stayed” under s. 4, 5 or 7 of the GPA 2004 because there was nothing to stay. The matters that were stayed under those provisions were matters lawfully en route when they were given a stand still order by the coming into force of the GPA 2004. Moreover, because Berrywoods’ applications were nullities and void ab initio, they were not revived and “continued” when the GPA 2004 was repealed on March 9, 2005 by the Greenbelt Protection Amendment Act, 2004, S.O. 2004, c. 24, s. 1.

[59] The Berrywoods’ applications may have been initiated and filed in anticipation that the GPA 2004 and the SCPAA would not be made retroactive to December 16, 2003. However, those statutes were made retroactive and nullified Berrywoods’ applications.

VII. Conclusions

[60] We find that the definition of “urban settlement area” in the GPA 2004 excludes the lands of Berrywoods which are the subject of the various applications and purported appeals. As of December 16, 2003, when the GPA 2004 came into effect, the lands were not “designated” in any official plan as an “urban area” or “rural settlement area” and, therefore, are lands that are not within an “urban area”.

[61] We reject as not persuasive the submissions of the Respondent, Berrywoods, that because the subject lands are listed in the Official Plan as a “rural study area”, the lands should be included within an “urban settlement area” or a “rural settlement area”, or “future urban use area” which are listed as land use designations.

[62] We find that, pursuant to s. 5 of the GPA 2004, Berrywoods’ four (4) March 19, 2004 applications, because they relate to land outside an “urban settlement area”, are applications that were of “no effect” as of the date upon which they were made.

[63] We further find that, pursuant to s. 4 of the GPA 2004, the municipalities were prohibited from processing the applications leading to adoption or approval and that, in taking the steps actually taken by the municipalities, they were acting ultra vires. In addition, the municipalities were subject to the provisions of Ont. Reg. 432/03 which prohibited any new land use in the area in which Berrywoods’ lands were situated.

[64] We are of the view that the words of “no effect” must be assigned their plain meaning. Those words do not simply equate to a “stay” – those words mean something much more fundamental. The words are akin to a declaration of nullity or, at least mean “without any legal effect”. The applications, once the GPA 2004 was proclaimed in force, could not and should not have been processed.

[65] We accept as valid the argument of the Applicants that, because the applications were of “no effect”, there was nothing to appeal to the OMB. Therefore, the stay provisions of s. 7 of the GPA 2004, insofar as the “appeals” are concerned, have no application – that is, no stay was triggered. In any event, the s. 7 stay applies only to applications, appeals and hearings that were before the OMB and validly ongoing as of December 16, 2003.

[66] The OMB, therefore, was without jurisdiction to accept or entertain the “appeals”.

[67] Berrywoods’ “applications” and “appeals” were not revived by s. 15 of the GPA 2004 upon that Act’s repeal. Section 15 refers only to valid applications and appeals. Berrywoods’ argument that there was a revival ignores the phrase of “no effect”. It would require clear language to revive these “applications” and these “appeals” – there is no such clear language. In any event, because the “appeals” were, clearly, nullities, there was nothing to revive. We note that to accept Berrywoods’ argument would result in favouring applicants who filed applications contrary to s. 5 of the GPA 2004 over those who have complied with the prohibition against filing applications of that nature.

[68] The “appeals” were such that, because of the GPA 2004, they did not exist. In any event, those “appeals” were expressly prohibited by s. 4(7) of the SCPAA.

VIII. Is the Application for Judicial Review, a discretionary remedy, premature?

[69] The Applicants submit that there are no discretionary considerations against the granting of the judicial review application in this case. A prohibition order is available to stop the OMB from exercising a non-existent, phantom, jurisdiction spread over an eight (8) week proposed hearing. Moreover, it is submitted that there is no other adequate remedy to rule on the vires of the actions of Durham and Pickering. The submission is made that justice requires that prohibition be available now.

See: Bell v. Ontario Human Rights Commission, 1971 195 (SCC), [1971] S.C.R. 756, 772, 774-5; Law Society of Upper Canada v. Canada (Attorney General) (1996), 1996 7981 (ON SC), 28 O.R. (3d) 460, 469 (O.C.G.D.) per McCombs J.; Canada (Attorney General) v. Canada (Commission of the Inquiry on the Blood System) (1997), 1997 6327 (FCA), 142 D.L.R. (4th) 237, 248-50 (Fed. C.A.), Decary J.A., affirmed: 1997 323 (SCC), [1997] 3 S.C.R. 440.

[70] Because the question to be decided is the jurisdiction of the OMB, this court is best suited to decide that question. The matter does not fall within the exclusive expertise of the OMB.

[71] Counsel for the Applicants further submit that if the jurisdiction issue is left to be decided by the OMB, and either party wishes to appeal after the eight (8) week hearing, an appeal is limited to questions of law with leave (s. 96(1) of the OMBA).

[72] The OMB’s expertise in planning and land use is not engaged in defining the OMB’s jurisdiction and whether the municipalities’ actions are ultra vires. “The question of jurisdiction is a matter ultimately best dealt with in the Divisional Court” – Equity Waste Management of Canada v. Halton Hills Town) (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321, 322 (Ont. C.A.) per Laskin J.A.

[73] The Applicants further submit that judicial economy calls for judicial review, here and now, rather than going through an eight (8) week hearing before the OMB. It is to be remembered that the OMB decisions do not bind subsequent panels. Each panel is free to decide according to the facts presented to that panel.

[74] In Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 5633 (ON SCDC), 66 O.R. (2d) 18, 25-26 (Div. Ct.), Reid J. said:

Notwithstanding their reluctance to intervene in the proceedings of tribunals prior to their completion courts will do so in order to avoid wasting time and money. Thus, if it appears at the outset that a proceeding in a tribunal will be fatally flawed, a means exists by way of judicial review to challenge it.

[75] We agree that in this case judicial review is the only proper, adequate relief available to the Applicants.

IX. Result

[76] An order to go allowing amendments to the Applicants’ Notice of Application for Judicial Review as follows:

(a) changing the name of one of the Applicants from “Transport Canada” to “the Attorney General of Canada”;

(b) adding the Ontario Municipal Board as a party respondent, and

(c) amending the relief sought by adding a request for an order of prohibition against the OMB.

[77] The application for judicial review is granted and there shall issue:

a) A declaration that, pursuant to the Greenbelt Protection Act, 2004, S.O. 2004, c. 9 (the “Greenbelt Protection Act”), the following applications for planning approvals (collectively the “Applications”) filed by the Respondent Berrywoods Farms Inc. (“Berrywoods”) are a nullity and of no effect:

i) the application filed with the Respondent Regional Municipality of Durham (“Durham”) on or about March 19, 2004, in which Berrywoods seeks an amendment to the Durham Region Official Plan (the “Durham Plan Application”);

ii) the application filed with the Respondent Corporation of the City of Pickering (“Pickering”) on March 19, 2004, in which Berrywoods seeks an amendment to the Pickering Official Plan (the “Pickering Plan Application”);

iii) the application filed with Pickering on March 19, 2004, in which Berrywoods seeks an amendment to Pickering Zoning By-law No. 3037 (the “Pickering Zoning Application”); and

iv) the application filed with Pickering on March 19, 2004, in which Berrywoods seeks approval of a draft plan of subdivision (the “Pickering Subdivision Application);

b) A declaration that all decisions purportedly taken by Pickering and Durham pursuant to the Planning Act, R.S.O. 1990, c. P. 13 (the “Planning Act”) related to the processing of the Applications, the particulars of which decisions are set out below are a nullity and of no effect;

c) An order in the nature of certiorari quashing all decisions purportedly taken by Pickering and Durham pursuant to the Planning Act related to the processing of the Applications, the particulars of which decisions are set out below;

d) A declaration that no statutory rights of appeal arose in relation to the Applications;

e) An Order prohibiting the OMB from hearing or in any way dealing with Berrywoods’ purported appeals of the Applications.

2. The decisions purportedly taken by Pickering and Durham pursuant to the Planning Act related to the processing of the Applications include:

a) The decisions of Pickering and Durham to accept the Applications submitted on or about March 19, 2004;

b) The decision of Durham to circulate the Durham Plan Application for comments and to hold a statutory public meeting in relation to the Durham Plan Application on May 11, 2004; and

c) The decisions of Pickering and Durham to compile and submit “records” to the OMB in response to Berrywoods’ purported appeals of the Application to the OMB.

X. Costs

[78] If counsel are unable to agree on costs within ten (10) days from the release of these reasons, within a further period of ten (10) days, counsel for any party seeking costs shall file a draft bill of costs and brief written submissions. If so advised, responding counsel may file brief written submissions within a further ten (10) days. Very brief reply submissions may be filed within a further five (5) days. Thereafter, costs to be fixed.

O’Driscoll J.

Gravely J.

Power J.

Released: March 1, 2006