CITATION: Toronto (City) v. Dorsay Investments et al, 2010 ONSC 3212
COURT FILE NO.: 597/09
DATE: 2010/06/03
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: City of Toronto, Applicant AND: Dorsay Investments et al, Respondents
BEFORE: H. Sachs J.
COUNSEL: R. Andrew Biggart, for the Applicant, City of Toronto Mark Flowers and Isaiah Banach, for the Respondents, Dorsay et al.
HEARD: May 27, 2010 at Toronto
E N D O R S E M E N T
INTRODUCTION
[1] The City of Toronto (the “City”) seeks leave to appeal from a decision of the Vice-Chair of the Ontario Municipal Board (the “Board”) dated November 24, 2009 (the “Decision”). In the Decision the Vice-Chair refused to order a rehearing or a review of a decision released on August 28, 2009 in which a panel of the Board granted approval to the Respondents for a mixed use development containing 914 residential units.
[2] Central to the Respondents’ original application before the Board was whether they could receive permission for a development that includes residential units on lands designated under Toronto’s Official Plan as “Employment Areas” without going through a municipal comprehensive review. The City took the position that because of the provisions of the Growth Plan for the Greater Golden Horseshoe Area (the “Growth Plan”), they could not. The Respondents submitted, and the Board accepted, that since the lands were not located within the City’s “Employment Districts”, a site specific conversion request could be considered without the necessity of a municipal comprehensive review.
[3] The issues in this application involve the interpretation of the City’s Official Plan and the Growth Plan and the exercise of the Board’s discretion under s. 43 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 (“OMBA”). Section 43 of the OMBA provides that the Board may rehear, review, rescind, change, alter or vary any decision it has made. The OMB Rules of Practice and Procedure set out the procedure for making such a request and the basis for exercising the discretion available under s. 43. One of the bases for exercising that discretion is if the Vice-Chair is satisfied that the request for review “raises a convincing and compelling case that the Board….(c) made an error of law…such that the Board would likely have reached a different decision” (OMB Rule 115.01).
[4] On this motion the City submits that there was a convincing and compelling case that the original panel of the Board made an error of law in its interpretation of the Official Plan and the Growth Plan such that the Vice-Chair should have exercised his discretion to grant a rehearing of the application.
[5] Pursuant to s. 96 of the OMBA appeals from the Board to the Divisional Court lie only with leave, on a question of law. In Niagara River Coalition v. Niagara-on-the-Lake (Town), 2010 ONCA 173, 2010 CarswellOnt 1332, the Ontario Court of Appeal held at para. 43 that the interpretation of an official plan is a question of law.
[6] The Respondents sought to develop a parcel of land that was designated under the City of Toronto’s Official Plan as an “Employment Area”. The Official Plan prohibits the development of lands designated as Employment Areas for residential uses. The Respondents’ development includes 914 residential units as well as retail and commercial space and a day-care centre. The Respondents applied to City Council seeking an amendment to the Official Plan to redesignate their lands from “Employment Areas” to “Mixed-Use Areas”. Council denied their request and the Respondents appealed to the Board.
[7] The City’s position before the Board that since the subject lands were designated as “Employment Areas”, the provisions of the Growth Plan were clear – no conversion in use could take place without a municipal comprehensive review. Such a review only takes place every five years and involves the City considering what should happen to the designated “Employment Areas” on a comprehensive basis. In other words, any conversions on lands within the “Employment Areas” designation cannot be made on a site specific basis.
[8] A panel consisting of two Board members held an extensive hearing where they heard from a number of witnesses, including a number of expert witnesses. At the end of the hearing they allowed the Respondents’ application to redesignate the subject lands from “Employment Areas” to “Mixed-Use Areas”. In doing so they found that the subject lands did not fall within an employment area as that term is defined in the Growth Plan. Therefore, there was no need for a municipal comprehensive review before the conversion to Mixed Use could be considered. The panel then went on to consider whether the proposed conversion was appropriate and found that it was. They then adjourned the hearing to consider the details of the Official Plan Amendment. The panel issued their decision on August 28, 2009.
[9] On September 24, 2009, the City wrote to the Chair of the OMB requesting a review pursuant to s. 43 of the OMBA of the August 28, 2009 decision. The City argued that the Board erred when it found that the application to redesignate did not constitute a conversion under the Growth Plan.
[10] On November 24, 2009 the Vice-Chair of the Board issued the Decision. With respect to the issue that is central to this application the Vice-Chair found as follows:
…The Board determined that a change in land use designation from Employment Area to Mixed Use Area did not constitute a conversion under the Provincial documents as the lands are not subject to the Employment District policies in the OP…Page 13 of the Decision discusses the distinction between the term employment areas as set out in the PPS and GP and Employment Areas as set out in the OP. Employment areas are defined in Provincial documents as areas designated in an OP for clusters of business and economic activities which equate to lands found in the City’s growth areas identified as Employment Districts and not to lands designated as Employment Area for employment purposes that are outside Employment Districts. The Board found that the subject lands do not lie in Employment Districts/employment area, and the protection afforded by the conversion requirements under the Provincial documents does not apply.
[11] The Vice-Chair found that the Board’s reasons in this regard disclosed no error of law and that he would not have reached a different decision.
ANALYSIS
[12] The City submits that in reaching the conclusion he did the Vice-Chair made the same errors of law that the original panel of the Board did. This error was two-fold. First, the Vice-Chair ignored the clear wording of the Growth Plan and the clear definition of “Employment Area” contained within that Plan. They also ignored the fact that under s. 14(2) of the Places to Grow Act, 2005, S.O. 2205, c. 13, the Growth Plan prevails over an Official Plan when the two are in conflict.
[13] Pursuant to Policy 2.2.6 of the Growth Plan,
- Municipalities may permit conversion of lands within employment areas, to non-employment uses, only through a municipal comprehensive review…
[14] In the Definitions section of the Growth Plan employment area is defined as
Areas designated in an official plan for clusters of business and economic activities including, but not limited to, manufacturing, warehousing, offices and associated retail and ancillary facilities. (Provincial Policy Statement 2005)
[Emphasis added.]
[15] The Official Plan for the City of Toronto contains a reference to “Employment Areas”, “Employment Districts” and “Avenues”. The Plan also contains maps dividing the City up according to these and other terms. Only the term “Employment Areas” is an official land use designation term. The other two terms are not. Therefore, according to the City, the lands in question, which clearly fall within an “Employment Area” on the Land Use Designation map, are within an employment area as that term is used in the Growth Plan.
[16] The difficulty in this case is that the City’s Official Plan also contains a map entitled “Toronto Official Plan Urban Structure” that divides the City up in terms of, among other things, “Avenues” and “Employment Districts”. On this map the subject lands fall within an area called “Avenues”. The panel of the Board found as a fact that, given this, the lands in question do not fall within an “Employment District”, but only within an “Employment Area.” The City is not seeking to appeal this finding of fact.
[17] The Board reviewed the wording of the Growth Plan, the wording of the City’s Official Plan and the City’s own documents to come to the conclusion that the definition of employment areas within the Growth Plan applied to “Employment Districts” under the Official Plan. Since the subject lands were on an Avenue, and not within an Employment District, they were not subject to the conversion protection under the Growth Plan. In coming to this conclusion the Board also heard expert opinion evidence on the subject. The Vice-Chair declined to order a review of this decision.
[18] In considering whether to grant leave there are two other important considerations to keep in mind. First, although the decision concerns a question of law and the test for the granting of leave is whether there is good reason to doubt the correctness of the decision, I am conscious that the question engages the policy expertise of the Board and involves the equivalent of their “home” statutes. As such, the Divisional Court owes deference to the Board’s decision and the decision would likely attract a standard of reasonableness on the appeal itself. Second, the “Board’s right to review decisions under s. 43 of the OMBA is broad and discretionary” (SmartCentres Inc. v. Toronto (City), 2009 CarswellOnt 7507, 63 O.M.B.R. 129 (S.C.) at para. 15).
[19] In reaching the decision it did, the Board considered the fact that the former Chief Planner of the City, in an internal memorandum dated November 25, 2005, stated that lands within Employment Areas that were not within Employment Districts would not be subject to a comprehensive review under the Provincial Policy Statement 2005 (from which the definition of employment area in the Growth Plan was derived). Furthermore, City Council has adopted this approach in several other applications to redesignate lands that were within an Employment Area, but not within an Employment District.
[20] On the motion before me, the City submitted that the Board erred in relying on this information since all of these documents preceded the passage of the Growth Plan in June of 2006 and the Growth Plan prevails over the City’s Official Plan. In response, the Respondents produced a By-Law that was passed by Council of the City of Toronto in May of 2009.
[21] Under the Growth Plan, the City of Toronto had three years to bring its Official Plan into compliance with the Growth Plan. The purpose of the By-Law in question was to accomplish this goal.
[22] The By-Law provides as follows:
To ensure a diverse economic base and provide fulfilling and well-paid employment opportunities for Toronto residents, all lands designated as Employment Areas within Employment Districts as shown on Map 2 of this Plan are required to achieve the City’s range of employment forecasts by 2031. No lands designated as Employment Areas within Employment Districts as shown on Map 2 will be considered for conversion to non-employment uses, including major retail uses, without the completion of a Municipal Comprehensive Review to be undertaken every five years as part of a full review of this Plan…
The need to review and revise this Plan will be considered every five years…This assessment will include a Municipal Comprehensive Review of the City’s Employment Areas located within Employment Districts as shown on Map 2.
[23] Under this By-Law the City has committed to not considering any conversions to non-employment use on lands designated as “Employment Areas” within “Employment Districts” without a municipal comprehensive review. The clear inference to draw from this is that the City will consider conversions to non-employment uses on lands that are designated as “Employment Areas” that are not within “Employment Districts” without a municipal comprehensive review. This By-Law represents City Council’s view of what is needed to bring its Official Plan into compliance with the Growth Plan. In essence that view is consistent with the approach taken by the Board on this application and consistent with the manner in which the Vice-Chair exercised his discretion under s. 43 of the OMBA. Given this, I am not persuaded that there is good reason to doubt the correctness of the Vice-Chair’s decision.
CONCLUSION
[24] For these reasons the motion for leave to appeal is denied. The City shall pay the Respondents their costs of this motion, which I fix in the amount of $10,000.00. These costs are payable within 30 days.
H. Sachs J.
DATE: June 3, 2010