Picard Foods Ltd. v. Regina, 2011 ONSC 1274
CITATION: Picard Foods Ltd. v. Regina, 2011 ONSC 1274
DIVISIONAL COURT FILE NO.: 1815
DATE: 20110304
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., FERRIER, C. McKINNON JJ.
IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, c.J.1
AND IN THE MATTER OF a decision of Her Majesty the Queen, in the right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario.
B E T W E E N:
PICARD FOODS LIMITED
Applicant
Mervin L. Riddell, for the Applicant
- and -
HER MAJESTY THE QUEEN, IN RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO
Respondent
David Vickers, for the Respondent
HEARD at London: November 24, 2010
CUNNINGHAM A.C.J.
[1] Picard Foods Ltd (“Picard”) owns and operates a retail food store outlet at the northwest corner of the intersection of King’s Highway 4 and County Highway 3. Picard is particularly well known as a peanut grower, operating a number of retail outlets across Ontario. It is perhaps better known as Picard’s Peanuts.
[2] Picard decided to purchase the above noted corner in 1999 which at one time had been home to a gas station and in 1999 to a mobile chip wagon. When Picard first considered this property it had two Highway 4 entrances which had been approved and constructed by the Ministry of Transportation, Ontario (MTO) in about 1993. For Picard these Highway 4 entrances would give its proposed operation easy access from the highway to its proposed “destination” location. There was also access onto Highway 3, known as the Talbot Line running east and west, control of which, in 1998, was ceded by the Province to the County of Elgin.
[3] In March 1999, Picard entered into an agreement to purchase this corner conditional on Picard being satisfied with site plan and building permit approval. In April 1999 Picard, at a meeting with MTO, was advised that all access to the property had to be from Highway 3. Notwithstanding this advice, Picard submitted a site plan showing the Highway 4 access. Later that same month MTO confirmed by letter to Picard that there would be a requirement for municipal road access (Highway 3) only. MTO, however, at the same time indicated to Picard that “to possibly permit access to Highway 4 for this new development proposal, the Ministry is prepared to review a Traffic Impact Study that addresses impacts to our highway system…”. They further stated that any highway improvements resulting from their review would be Picard’s responsibility. In the face of this advice, in early May 1999, Picard waived the conditions in the offer to purchase which was then set to close in early July.
[4] On May 31, 1999 Township Council approved Picard’s site plan subject in part to MTO approval. During this time Picard proposed to MTO a “right in” access only off Highway 4 which in early June, MTO rejected as being unsafe. In its communication to Picard concerning its “right in” proposal MTO stated a willingness to review a revised design. One of MTO’s concerns with Picard’s proposal was that it would encourage illegal left turns both in and out which in their view would present safety problems.
[5] As requested, Picard presented a revised “right in” plan to the MTO. Interministry correspondence clearly indicates an ongoing concern with people turning left into this “right in” only access for cars travelling north on Highway 4 and moreover, a belief that the Highway 3 access should suffice. On June 23 MTO’s Regional Director wrote to Picard advising that neither of the two “right in” only proposals resubmitted were satisfactory because “they would not prevent a left turn movement from your property and from the highway into your property.” He further stated that no design existed that would “absolutely prevent left turns.” Seeking assistance, Picard then corresponded with the MPP for Norfolk who forwarded the letter to the Minister. On July 5, 1999, the deal closed and Picard took title to the property, and on August 10, 1999 the Minister responded to Picard advising that the MTO position would be maintained for safety reasons. In spite of a further entreaty to the Minister by another MPP the MTO’s position did not change and Picard was warned that if it used Highway 4 access the Ministry would take action.
[6] In early October, 1999, the applicant’s retail store opened on this location and on October 18th the MTO obstructed all access to the site leaving only Highway 3 access in place.
[7] Much correspondence ensued between Picard and various government representatives. There being no resolution favourable to Picard it issued a Statement of Claim in July 2000 seeking various mandatory and declaratory relief along with damages.
[8] The matter worked its way through the system until June 22, 2009 when Tausendfreund J., in a motion brought by the defense, ordered the action struck from the trial list. The learned judge permitted certain amendments to the pleadings and pursuant to s. 8 of the Judicial Review Act, ordered that the plaintiff’s Statement of Claim be transferred to the Divisional Court to be heard as an application for judicial review.
[9] Before us Picard argues that the standard of review of the Minister’s decision ought to be correctness because the issues involve a matter of interpretation of general law, namely, the legal requirement of a lawful exercise of discretion. Put simply, Picard submits that because the Ministry had a policy which in effect stated that if a property had access to and from a municipal highway, there was an absolute prohibition against access to a provincial highway. In other words, in spite of the Ministry’s apparent willingness to reconsider after a Traffic Impact Study, the decision had already been made due to the “policy” and that no exercise of discretion occurred. Picard submits the MTO (or the Minister) only exercises a real and lawful discretion if there are choices to make among possible options or courses of action. There is no discretion when a policy, not the official, produces the result. This, they say, is an abdication of discretion to a single rule with a single, predictable outcome. If the respondent had been forthcoming at the onset, Picard would not have bothered to apply.
[10] We disagree. While we have some sympathy for the applicant’s predicament, for the reasons that follow, we have concluded that the standard of review is reasonableness. The Minister did exercise his discretion, the policy in question did not fetter that discretion and the Minister acted reasonably.
[11] As the Minister noted in his letter to the applicant dated August 10, 1999, the government is charged with the responsibility of providing a safe and efficient transportation system. While stressing the importance of balancing economic concerns and safety, the Minister concluded by saying his Ministry would “not permit the construction or use of an entrance that (would) not provide safe access to and from the highway.”
[12] While the applicant may have some legitimate concerns about the forthrightness of MTO officials, we are not persuaded that the policy earlier referred to prohibited the Ministry from considering options. Indeed, in the preamble to the Ministry’s Policy on Access to Provincial Highways, s. 7 states as follows:
“While striving for consistent application of access policies, the uniqueness of character and issues in various parts of the Province must be recognized. Therefore, some regional variations and local discretion are expected in order to ensure a reasonable, defendable and sensible implementation of the policies.”
[13] Clearly the MTO might have legitimate safety concerns about a “right in” only access off Highway 4. However, in our view there may well be other solutions to this problem.
[14] Nevertheless, MTO officials are trained to administer the legislation and regulations and this expertise is available to the Minister. Accordingly, the Minister through the MTO is entitled to considerable deference. Moreover, in the present case the MTO engaged an independent expert who supported the MTO’s position, notwithstanding a contrary report by Picard’s expert. MTO did consider alternatives before concluding none would work safely. This, in our view, was a reasonable exercise of the Minister’s discretion.
[15] In arriving at our conclusion regarding the standard of review we were assisted by BOT Construction Ltd. v. Ontario (Ministry of Transportation) (2009), O.J. 5309.
[16] In any reasonableness inquiry, it is important to determine whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law. (See also Dunsmuir v. New Brunswick (2008), 2008 SCC 9, 1 S.C.R. 190 para. 47).
[17] In the final analysis, it is our view that after considering the process engaged in by MTO, there was an exercise of discretion albeit with a result unsatisfactory to the applicant. While there is a policy in place, we are not persuaded its existence was wholly determinative of the issue. We are satisfied the MTO did seriously consider options which might have permitted Picard access off Highway 4. Unfortunately, at least to this point, none could be found that would address MTO’s safety concerns. One must not lose sight of the fact that Picard was informed and knew before it waived its conditions and closed the land purchase that an entrance off Highway 4 would not likely be granted. Accordingly, the application is dismissed.
[18] The respondent shall have its costs which, as agreed to by counsel, are fixed at $15,000 all inclusive.
Cunningham ACJ.
I agree___________________________
Ferrier J.
I agree___________________________
C. McKinnon J.
Released: March 4, 2011
CITATION: Picard Foods Ltd. v. Regina, 2011 ONSC 1274
DIVISIONAL COURT FILE NO.: 1815
DATE: 20110304
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., FERRIER, MCKINNON JJ.
B E T W E E N:
PICARD FOODS LIMITED
Applicant
- and –
HER MAJESTY THE QUEEN, IN RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO
Respondent
REASONS FOR JUDGMENT
Released: March 4, 2011