CITATION: Port Colborne v. Nyon Oil Inc., 2010 ONSC 3693
DIVISIONAL COURT FILE NO.: DC-10-0198ML Hamilton
DATE: 2010-06-25
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Mr Justice James Ramsay
BETWEEN:
City of Port Colborne
Moving party
– and –
Nyon Oil Inc.
Responding party
Mr Bruce H. Engell for the moving party
Ms Signe Leisk for the responding party
HEARD: 2010-06-25
[1] The City of Port Colborne moves under s.96 of the Ontario Municipal Board Act for leave to appeal to the Divisional Court from a decision of the Board.
[2] In an interlocutory motion, the Board decided that the responding party (Nyon) had standing to appeal to the Board under s.22(7) of the Planning Act from the decision of Port Colborne City Council to refuse an amendment to its official plan, and under s.34(11) of the Act from the City’s decision to refuse to amend the zoning by-law.
[3] In barest summary, Nyon and the City entered into an agreement to develop a piece of land in Port Colborne for energy storage and distribution. The City was an owner of the land. The responding party was to buy the land and develop it. The City was to apply for the requisite zoning and official plan amendments. In a press release, the City’s chief administrative officer referred to the project as a “joint venture” (Motion record, p.168). The City, as land owner, applied to its Council as legislator for a zoning by-law amendment and requested of Council an amendment to the official plan. Council refused both requests. Nyon sent a notice of appeal from these decisions to the City Clerk within the time prescribed by statute. The Clerk decided that the appeal was not valid because Nyon was not the person who requested or applied for the amendments. Nyon moved for directions to the Municipal Board. The Municipal Board decided that Nyon had standing to appeal and directed that the appeal be heard. The City asks for leave to appeal this ruling to the Divisional Court.
[4] The City says that there is good reason to doubt the correctness of the Board’s decision on three grounds.
a. The board had no jurisdiction to decide the motion, as no appeal was before it.
b. The board erred in holding that the responding party could be entitled to appeal, and in finding that the City requested the amendments in question as Nyon’s agent.
c. The board erred in giving reasons that are insufficient to permit meaningful review.
Jurisdiction of the Board
[5] The City submits that the Board had no jurisdiction to validate the appeal, because no appeal was before it. It says that the City Clerk had authority to determine whether a valid appeal had been filed, and is subject to judicial review in the exercise of that authority. I see no good reason to believe that the board erred in holding to the contrary.
[6] The Ontario Municipal Board has authority to hear and determine all questions of law or fact within its jurisdiction: Ontario Municipal Board Act, s.35.
[7] That includes deciding the scope of its jurisdiction in a proceeding before it: City of Toronto v. Goldlist Properties Inc. et al., [2003] O.J. No. 3931.
[8] Under both ss.22 and 37 of the Planning Act, an appeal is commenced by filing it with the city clerk. If the appeal is filed within the prescribed time, the clerk is required to compile and transmit a record to the Municipal Board. These are administrative acts. Nothing in the legislation suggests that it confers upon the clerk a power to assess the validity of the appeal or to determine whether the appellant is a person with standing.
Nyon’s standing to appeal and the reasonableness of finding agency
[9] Subsection 22(7) of the Planning Act gives the “person that requests an amendment” to an official plan the right to appeal to the Municipal Board. Subsection 34(11) of the Act gives the same right to “the Applicant” for an amendment to a zoning by-law. “Applicant” is not defined in the Planning Act, but its ordinary legal meaning is the person who requests something from a lawful authority.
[10] The Board found that Nyon’s interest in the project amounted to that of an applicant. That finding is made in the context of a thorough review in chronological order of the relevant events. The Board concluded that there was an agency relationship between Nyon and the City, who would have been partners if the project had been rezoned and re-designated.
[11] In so holding, the Board applied the correct legal test, which is, “is Nyon an applicant, or a person requesting, for the purposes of ss.22 and 34 of the Planning Act?” I see no reason to doubt the correctness of its decision to apply this test. Nor do I see reason to doubt the correctness of its implicit ruling that “applicant” or “person requesting” is not necessarily restricted to the person who signed the papers, but could also include someone on whose behalf the application was made. I do not agree with the City’s submission that the Board expanded the statutory class of appellants. I think that the Board interpreted the legislation in accordance with its purpose, which is to provide an avenue of appeal for persons who have applied for an amendment, or who, having an interest in the land, have been party to such an application.
[12] The appeal to the Divisional Court is restricted by the statute to a question of law. If the Board made its finding in the absence of evidence, that would be an error of law. The agreement between Nyon and the City and the contemporaneous statements of the parties and their officers and agents, which were before the Board, constitute an ample basis upon which the Board could conclude that the City applied for the amendments on behalf of Nyon, or on behalf of itself and Nyon. There is no suggestion in the evidence that the City was ever interested in re-zoning the land in question before, or apart from, the Nyon project. The contract required the City to apply for the amendments and required Nyon, ultimately, to pay the associated expenses (Motion record, p.263 “condition 6(d)”). So there was evidence that was capable of supporting the Board’s ruling. Whether the Board made the correct finding on the evidence is not a question of law. See Canada v. Southam Inc., [1977] 1 SCR 748.
Sufficiency of the Board’s reasons
[13] The Board undertook an extensive summary of the relevant facts in chronological order, set out the positions of the parties, and then gave its opinion on the questions in issue. It is evident from the reasons that the Board thought that in view of the relationship that was evidenced by the conduct of the parties, Nyon was the equivalent of an applicant, even if it did not sign the papers and provide the required materials, because the City did so on its behalf. The reasons are sufficient to allow meaningful review.
[14] Leave to appeal is denied.
[15] Having heard from the parties on costs, I award costs to the responding party, fixed at $10,000.
Released: 2010-06-25
CITATION: Port Colborne v. Nyon Oil Inc., 2010 ONSC 3693
DIVISIONAL COURT FILE NO.: DC-10-0198ML Hamilton
DATE: 2010-06-25
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Mr Justice James Ramsay
BETWEEN:
City of Port Colborne
Moving party
– and –
Nyon Oil Inc.
Responding party
REASONS FOR JUDGMENT
Released: 2010-06-25