Court File and Parties
Court File No.: 614/06 Date: 2007-09-28 Superior Court of Justice - Ontario Divisional Court
Re: 583753 Ontario Limited, Devon Lane Construction, Amir-Hessam Limited, Bilnia Investments Limited, Leslie Street Investments Limited, Zucchi Construction Limited, Lionheart Enterprises Limited, Max Glicksman, Greta Glicksman, Morris Glick, Ada Glick, 26 Elgin Mill Inc., Clearpoint Developments Ltd., Upper City Corporation and 775377 Ontario Ltd., Moving Parties (Applicants)
And: Regional Municipality of York, Town of Richmond Hill, Toronto and Region Conservation Authority, Save the Rouge Valley System Inc., York Catholic District School Board, D. Bawden, M. Wood, Mahtaf Investments Limited, S. & Z. Mizrahi Investments Limited, Richmond Greenhouses, E. Manson Investments Limited, Shirley Endean, Gus Sotirakos, Maria Sotirakos and RR REIT, Responding Parties (Respondents)
Before: Mr. Justice Brockenshire
Counsel: Mark Flowers, for the Bayview East Landowners Group (BELG) Ira T. Kagan, for the Respondents, S. & Z. Mizrahi Investments Limited & Richmond Greenhouses R. Beaman & A. Burton, for the Town of Richmond Hill R. Miller, for the Regional Municipality of York
Heard: September 24, 2007
Endorsement
Brockenshire J.:
[1] This was a motion seeking leave to appeal to the Divisional Court from the decision of the Ontario Municipal Board ("the O.M.B."), No. 3289, issued November 23, 2006.
[2] The sixty-page O.M.B. decision issued after five months of hearings, interrupted by the introduction of the Greenbelt Plan. The O.M.B., in a procedural order, set out some fifty-three planning issues to be decided. The proposed applicants here, as well as Mr. Kagan's clients, are all satisfied with the decision of the O.M.B., except for three findings. The appellants and Mr. Kagan's clients are all land owners in the area now in the North Leslie Secondary Plan, which acts as the new Official Plan for an area of some 1,530 acres, between Bayview Avenue and Highway 404, north of Elgin Mills Road East. This area was, by the O.M.B. Order, moved into the Town of Richmond Hill, and urbanization, of various densities and kinds, was permitted in areas outside of those designated as "natural heritage system" and "protected countryside" in the Greenbelt Plan.
[3] The three alleged errors of the O.M.B., all described as fundamental misinterpretations of the Greenbelt Act, 2005 and the Greenbelt Plan, are, briefly:
The finding that active parkland should not be permitted within the "protected countryside" areas of the proposed Plan;
The finding that parklands, or amenity space, required of developers for subdivision, severance or condominium approvals, constitute an urban use, and are not permitted in the "protected countryside" areas;
The approval of the policy statement in the Plan that the Town of Richmond Hill seek acquisition of the "natural heritage system" and "protected countryside" lands at minimal or no cost.
[4] Mr. Kagan joined with Mr. Flowers in support of his motion.
[5] An appeal lies to the Divisional Court from the O.M.B. on a question of law.
[6] The test for granting leave was stated by Mr. Flowers as satisfying the conditions that:
The question of law must be of sufficient importance to merit the attention of the Divisional Court; and,
There must be some reason to doubt the correctness of the O.M.B.'s decision.
[7] Mr. Beaman, for the Town, accepted that, with two caveats – the Motions judge must show deference to the O.M.B. decision, due to the independence and expertise of the O.M.B. and its members, and there must be reason to doubt the correctness of the entire order. The second caveat comes from the decision of Himel J. in Kraft Canada Inc. v. Menkes et al., Court File No. 548/06, released July 18/07, para. 13. I am not persuaded that it is impossible for leave to issue to appeal individual findings in a decision of the O.M.B., but I certainly acknowledge that the individual findings must be looked at in the context of the entire matter then before the O.M.B., and the entire decision made.
[8] Here, the O.M.B. was faced with very difficult environmental and planning issues in a small, but complex area (1,530 acres, compared to the 1.8 million acres I was told are in the Greenbelt area). There are five rivers, large and small, flowing in to the area from the north (the Oak Ridges Moraine area), three of which join in the area into one, so that three rivers flow out, to eventually join the Rouge River. There were ecological and ground water concerns in the area. The river corridors are designated as "protected countryside", overlaid (in part) by designation as "natural heritage system" lands, all under the Greenbelt Plan. Urban designations were proposed for the "fingers" of remaining lands in the areas. The O.M.B.'s task was to apply appropriate planning and environmental policies to the urban areas, that conform to, and complement, the policies in the Greenbelt Plan, which covered roughly one-third of the 1,530 acres.
[9] Mr. Flowers argued that the interpretation of the Greenbelt Plan was the interpretation of a statute, as the Plan emanated from a statute, and so was a question of law. The view of Mr. Beaman and Mr. Miller was that the Plan is a policy statement. My view, after hearing argument and reviewing both, is that the Greenbelt Act, 2005 is a statute, which authorizes a plan, and provides requirements that the plan be followed. The plan itself is, in my view, unquestionably a collection of policy statements (as the Act provides in s. 6), to carry out the objectives set out in s. 5. As such, in my view, deference must be given to the O.M.B., which has specific expertise in interpreting and working with such policies. Also, in my view, the standard on reviewing O.M.B. decisions on such policies would be reasonableness, rather than correctness. In that connection, I accept the arguments of Mr. Beaman and Mr. Miller that policies can, and regularly do, point in different directions, and therefore an informed and reasonable conclusion should be accepted.
[10] Here, I accept that parks and parkland, including active parkland uses, are repeatedly referred to in the Greenbelt Plan as acceptable uses within "protected countryside". However, s. 3.4.213 of the Greenbelt Plan specifically says that settlement areas outside the greenbelt are not permitted to expand into the greenbelt. "Settlement areas" are defined in the Greenbelt Plan as not just towns, villages, etc., but also lands designated in an official plan for development. The O.M.B. relied on the evidence of Mr. Sit, a Lead Planner with the Ministry of Municipal Affairs (with whom the Town Planner concurred) that parks, dedicated by developers as part of a subdivision approval, or provided as an amenity in a condominium development, are part of the urbanization in a "settlement area", and so should not be permitted to encroach into the lands protected in this area by greenbelt designations. In his view, they are ancillary uses to, and directly associated with the proposed urban or "settlement" areas. The O.M.B. acted on that evidence.
[11] My own view is that in relation to this secondary plan, for this difficult area, the O.M.B. decisions re parkland are reasonable, in the context of the whole decision, and supported by the policies and objectives of the Greenbelt Plan. Much more importantly, the decisions are policy decisions, not decisions on questions of law; decisions within the expertise of the O.M.B., and exempt from appeal. The decisions reached by the O.M.B. here are far removed from the interpretation of s. 8 of the Oak Ridges Moraine Conservation Act, dealt with in Vaughan (City) v. Rizmi Holdings Ltd. 40 M.P.L.R. (3d) 278, or the interpretation of "having regard to" under the Planning Act in Concerned Citizens of King Township Inc. v. King (Township), [2000] O.J. No. 3517, and even farther removed from the issue in Basso v. King (Township) (2005), 50 O.M.B.R. 129, where the O.M.B., held a hearing specifically to determine a question of law – the interpretation of the term "bed and breakfast establishment".
[12] The third issue upon which an appeal is sought, is the approval of the policy statement in the Secondary Plan, that the Town would offer to acquire lands in the restricted areas under the Greenbelt Plan, for no, or nominal compensation. The arguments against that are that it violates the "Nepean Principle" – where a municipality down-zones a property, it must offer to acquire it, at its previous value, within a reasonable time, and that it would be used as a veiled threat to developers, to give up their land in the greenbelt areas, or suffer unnamed consequences.
[13] The complete answer to the first concern is that neither the Town or the Region imposed the greenbelt designations. The Province did it, backed by legislation that bars recourse. The second concern was, in my view, answered by Mr. Beaman – the Town always had a policy, in it its Official Plan, of acquiring lands needed for conservation or other purposes, at full value, but now, with one-third of the area in the secondary plan covered by provincial restrictions, it cannot afford to buy them all. The words simply state the present Town policy. Any developer who detects any threat in severance, subdivision of condominium approval applications has recourse to the O.M.B. or the courts. This too, in my view, is not a question of law – it is an issue as to the appropriate wording for a policy.
[14] There is no doubt that the correctness of the three above decisions is open to serious debate – the full day of carefully prepared arguments by skilled counsel demonstrated that. The point is, the decisions were not, in my view, decisions of questions of law.
[15] The further part of the test, if I am wrong in finding there is no point of law at issue, is whether such point of law is of sufficient importance to merit the attention of the Divisional Court. The decisions were made as a small part of dealing with over fifty issues relating to the future development of a small, and possibly unique, part of the greenbelt. Counsel for the Town and the Region could not see an appellate review of these decisions being of much, or any assistance in future developments in the greenbelt. Although Mr. Flowers argued otherwise, I accept the argument of Mr. Beaman, supported by Mr. Miller.
[16] This application for leave to appeal is dismissed. If counsel cannot agree on costs, written submissions can be made to me.
Brockenshire J.
Date: 2007-09-28