CITATION: The Corporation of the Town of Aurora v. Robert G. Sikura and Regional Municipality of York, 2011 ONSC 7642
DIVISIONAL COURT FILE NO.: 435/11
DATE: 20111222
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
THE CORPORATION OF THE TOWN OF AURORA
Applicant
– and –
ROBERT G. SIKURA
Respondent
- and –
REGIONAL MUNICIPALITY OF YORK
Respondent
Ian J. Lord, counsel for the Applicant
Tom Halinski, counsel for the Respondent Sikura
HEARD: December 14, 2011
PENNY J.
REASONS FOR DECISION
Overview and Issues
[1] This is a motion for leave to appeal to the Divisional Court from the decision of the Ontario Municipal Board issued September 1, 2011 (the Decision). The motion is brought under s. 96(1) of the Ontario Municipal Board Act R.S.O. 1990, c. O.28 and rule 61.03 of the Rules of Civil Procedure. Importantly, section 96(1) of the Act provides that an appeal lies from the Board to the Divisional Court, with leave, only on a question of law. The Board's findings of fact are not subject to appeal.
[2] The test for obtaining leave to appeal from a Board decision requires that:
(1) the proposed appeal raises a question of law;
(2) the correctness of the Board's decision with respect to the question of law must be open to substantial doubt; and
(3) the point of law must be of sufficient importance to merit the attention of the Divisional Court.
[3] While the court does not need to apply a standard of review directly when considering a motion for leave to appeal, the court hearing the motion should be conscious of the fact that the Board has expertise in both planning matters and with respect to its “home” statute, the Planning Act, R.S.O. 1990, c. P.13. Whether the impugned portions of the Board's decision fall within the ambit of that expertise, and whether the standard of review is likely to be reasonableness or correctness, assists in assessing whether there is substantial doubt about the correctness of the Board's decision.
[4] In September 2010, the Town of Aurora enacted a bylaw adopting an amendment to its official plan, referred to as OPA 73. OPA 73 covers a broad area in Aurora (approximately 238 developable hectares), including lands owned by Robert G. Sikura. OPA 73 was approved by the Council of the Regional Municipality of York in January, 2011. In February, 2011, Sikura filed a notice of appeal of OPA 73, limited to one discrete parcel (approximately 6.9 hectacres, or 3% of the total developable land) of his land located in the northeast corner of the lands subject to OPA 73 (the Property). Sikura’s was one of a number of appeals filed in connection with OPA 73. The appeals were all heard together and dealt with in the Decision. Only the Sikura appeal was allowed by the Board. The Town takes no issue with the Decision except as it relates to the Sikura appeal. The Region took no position and did not appear on this motion.
[5] The Town seeks leave to appeal on three questions:
(1) Did the Board exceed its jurisdiction by failing to consider the public interest, given that the Decision may require local government functions and responsibilities relating to the Property to be undertaken by an adjacent municipality?
(2) Did the Board commit breaches of natural justice in approving residential uses on the Property and refusing access and servicing to the property from the Town by considering irrelevant considerations, failing to consider relevant considerations and by misdirecting itself, causing a wrongful interpretation and application of OPA 73? and
(3) Did the Board commit an error of law in failing to consider, apply or properly interpret certain sections of the Planning Act, including provincial policies promoting employment?
1. Jurisdiction Re Access and Servicing
[6] The Board found that the Property was separated from the rest of the OPA 73 lands by a watershed which had been designated as an environmentally protected area. The Board concluded that the Property should be designated for residential, not business, uses. The provision of access and services to the Property from within the Town, as originally contemplated by OPA 73, was also rejected. The Board concluded that, to avoid road crossings of the environmentally protected watershed, the Property should take access and servicing only from the north, being lands already designated for residential uses but located within the Town of Newmarket.
[7] The Town argues that the Decision will permit residential land uses on the Property without access to road network or servicing capability from the Town. The Town argues that the effect of the Decision will be to leave future residents on the Property reliant upon Newmarket for road access and services. The Town claims that the isolation of a residential community within the Town from its responsible municipal jurisdiction and administration is “unprecedented” in a Board official plan appeal context.
[8] Counsel for Sikura argues that the Planning Act requires all decisions of the Town and the Board to be consistent with a 2005 provincial policy statement requiring cross jurisdictional integration where desirable for planning purposes. For example, section 1.2.1 of the policy states that “a coordinated, integrated and comprehensive approach should be used when dealing with planning matters within municipalities, or which cross lower, single and/or upper tier municipal boundaries, including… managing and/or promoting growth and development” and “infrastructure.” Section 1.6.5.3 states that “connectivity within and among transportation systems and modes should be maintained and, where possible, improved including connections which cross jurisdictional boundaries.”
[9] Counsel for Sikura further points to evidence that was before the Board concerning the planning approval process for the Cedar Manor Homes subdivision in Newmarket located directly to the north of the Property. In that approval process, the towns of Aurora and Newmarket cooperated specifically on the issue of integrating the two properties for access and servicing purposes. The October 2009 Newmarket staff report notes that:
the Town of Aurora have [sic] provided comments that indicate there is a parcel of land in their 2C Planning Area that appears to be landlocked due to the presence of a watercourse and Aurora's Natural Heritage System [this refers to the Property]. This parcel directly abuts the south east area of the draft plan. Both the Town of Aurora and the Region have requested that this plan provide a potential future access to the lands [again, a reference to the Property] in Aurora. This has been accommodated by extending Street “11” to the south boundary which terminates at a 0.3 m reserve.
In other words, the Town of Aurora was already contemplating, before adopting OPA 73, the very thing the Board directed to take place in the Decision.
[10] I have carefully reviewed both the written and oral submissions of the Town on this issue. I confess I am unable to find any clear articulation of an error of law.
[11] Read carefully, the Town’s submissions really consist of allegations that the Board failed to consider evidence put before it by the Town at the hearing to the effect that the Property need not and should not be made reliant, for access and servicing, on another municipality.
[12] This hearing involved a number of parties and lasted more than five weeks. The hearing comprised several hundred hours of oral evidence from 24 witnesses, thousands of pages of documents and other written and visual evidence and full written and oral argument from lawyers representing the various parties.
[13] In my view, the Town, on this issue, has failed to establish the preconditions for leave to appeal. I do not think this issue involves any identifiable error of law. There was ample evidence to support the Board’s conclusion. Even if there were an issue of law, I would not be prepared to find there is substantial doubt about the correctness of the Board’s Decision, given that it merely requires what the Town had already asked for and obtained Newmarket’s agreement to do when the abutting residential development in Newmarket was approved in 2009.
2. Breaches of Natural Justice
[14] The Town’s argument on this issue largely focused on one sentence at page 37 of the Decision:
The Board has set aside the urban design evidence, the evidence related to land economics and the balance of the traffic and transportation planning evidence and as provided for in these reasons, has centered its analysis on the Town’s proposed crossing in the context of its OPA 73 environmental policies, and on the environmental aspects of these environmentally sensitive lands that impede the Town’s desire to cross these environmentally sensitive and protected lands with a minor collector road in order to establish employment uses on this isolated parcel, which in fact abuts a very large developing residential subdivision.
[15] The Town argues that, in purporting to set aside the urban design evidence, the evidence related to land economics and the balance of the traffic and transportation planning evidence and centering its analysis on the Town’s proposed crossing in the context of applicable environmental policies, the Board failed to consider all relevant evidence. According to the Town, it is not open to the Board to “set aside” relevant considerations and thereby avoid the obligation incumbent upon it to weigh all matters germane to the determination of whether the minor collector road was or was not appropriate, necessary and desirable in the context of the overall plan.
[16] On the motion for leave, the Town proceeded, in effect, to reargue its position based on the evidence it favored in support of OPA 73.
[17] It is well settled that an administrative tribunal is not obliged to refer to all of the evidence before it. The basis of the decision must be explained and this explanation must be logically linked to the decision made. This does not require that the tribunal refer to every piece of evidence or set out every finding or conclusion in the process of arriving at the decision. The path must be clear but it is not necessary that the tribunal describe every landmark along the way.
[18] As long as there was evidence upon which the Board could reasonably have reached its decision, the fact that the Board preferred the evidence of one expert or witness over that of another, or chose not to accept certain evidence, does not qualify as an error of law.
[19] It is not good enough to pick out pieces of the decision of a tribunal and hold them up to a magnifying glass to contend that, within a sentence or a paragraph, it is clear that there has been an error of law. The court must read the totality of the decision and weigh it according to the appropriate tests.
[20] Is clear, in my view, when read in the context of the entire Decision, that the Board's reference to “setting aside” certain aspects of the evidence and centering its analysis on others simply signals what the Board found to be the most germane considerations in rendering its decision. In the Board’s view, the Town’s case simply did not “clear the bar” with respect to those central issues.
[21] The Board, in my view, made ample reference throughout the Decision to evidence which supports the ultimate disposition of the Sikura appeal. Reference is made to this evidence in paragraphs 48 to 57 of the responding party's factum.
[22] In my view, the Town has failed to show, with respect to the second issue, that there was any denial of natural justice or, for that matter, any error of law whatsoever.
3. Failure to Apply the Planning Act
[23] The Town is required to amend its official plan to conform with a “Growth Plan” promulgated by the Legislature in 2005. As the Board found, the Region's numbers reflect an overall maximum population of 1.5 million and 780,000 jobs. In the case of the Town, the assigned numbers are a population of 70,000 and 34,200 jobs.
[24] The Town argues that both it and the Region called evidence to the effect that the removal of the “business park” designation from the Property and its replacement with a “residential” designation would conflict with and not conform to the Growth Plan in terms of both population and employment allocations assigned to the Town.
[25] The Town also argues that the Decision is contrary to section 2.1 of the Planning Act, which requires the Board to “have regard to” the decisions of municipal council and any supporting information and material that the municipal council considered.
[26] Under this heading, the Town also argues that the Board improperly placed an onus on the Town to justify OPA 73 rather than on the appellant, Sikura, to show why employment uses were not appropriate on the Property and why a residential designation should be preferred.
[27] The Board found, at page 33:
The Board determines that such development along the lines of a small residential subdivision also does nothing to offend the Town of Aurora's long-term plans for all-employment uses on all of the south Sikura lands as well as on the much larger Aurora-Leslie lands further south. Further, the flexibility of the Town to consider the appropriateness and viability of OPA 73 through active monitoring and study in the years ahead safeguards the Town's secondary plan with this small northeast parcel designated for Urban Residential uses as outlined.
[28] In my view, there is no issue of law raised by the Growth Plan compliance argument. The Region’s new official plan which allocates these numbers is under appeal and, therefore, not yet in force. Further, the Board had ample evidence to conclude that the change from a business to a residential designation for the Property (and the resultant impact on population and/or employment yields), given its small size in relation to the lands under OPA 73 as a whole (3%), would have no material impact on the growth forecasts in the Growth Plan for York Region. This evidence is referenced in paragraphs 70 to 72 of the respondent’s factum. As indicated in the passage quoted above, the Board simply did not accept the Town’s evidence on the Growth Plan compliance issue and preferred the appellant’s evidence.
[29] With respect to section 2.1 of the Planning Act, the decision of the Divisional Court in Ottawa (City) v. Minto Communities Inc.,[^1] makes it clear that, on an appeal, the Board has “the obligation to exercise its independent judgment on the planning merits of the application and to assess the proposal and the positions of the parties from the perspective of applicable legislation, regulations, provincial plans, the provincial policy statement, official plans and bylaws and even the potential impact on neighboring municipalities.” In doing so, the Board brings its own expertise to bear. In s. 2.1, the Legislature used language, when choosing the words "having regard to," that suggests minimal deference, considering the many other expressions it could have used. “The traditional role of the Board, and the broad powers it exercises, should not be altered radically without a more clear and specific expression of legislative intent.”
[30] I do not think it can be said that the Board failed “to have regard to” the choices of and supporting material before the Region and the Town in this case.
[31] The Board's Decision, in fact, reflects significant deference to the Town’s and the Region’s position, since the Town was almost wholly successful in the defence of OPA 73 at this hearing. The Board found, however, that the Property created a “unique situation.” There was evidence upon which the Board could reasonably reach that conclusion.
[32] Further, when read as a whole, the Decision is clear that the Board placed the evidentiary onus on the appellant, Sikura. At page 30, the Board said:
It is thus incumbent upon the Appellant to show, as it has shown, why employment uses are not appropriate on the north parcel of its lands and why the urban residential designation should be preferred. In this context, the Board also determines that like all municipalities across the Province, the Town of Aurora is free to make its long-term planning decisions in a manner that might depart from previous decisions or earlier planning processes, so long as they are guided by sound planning principles
[33] The Board found, contrary to the Town's wishes, that the Town's proposals for the Property in OPA 73, were not guided by sound planning principles. That was for the Board to decide and I can find no error of law attendant upon the Board’s disposition of that issue.
[34] Accordingly, for these reasons, the Town’s motion for leave to appeal is dismissed.
Costs
[35] I encourage the parties to explore agreement on the disposition of the costs of this motion. Absent agreement, Sikura may submit a brief written submission (not to exceed two typed pages) together with a bill of costs, within three weeks of the release of these reasons. The Town of Aurora shall submit any responding submissions (subject to the same limitation) within 10 days thereafter.
PENNY J.
Date: December 22, 2011
CITATION: The Corporation of the Town of Aurora v. Robert G. Sikura and Regional Municipality of York, 2011 ONSC 7642
DIVISIONAL COURT FILE NO.: 435/11
DATE: 20111222
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PENNY J.
BETWEEN:
The Corporation of the Town of Aurora
Applicant
– and –
Robert G. Sikura
Respondent
- and –
Regional Municipality of York
Respondent
REASONS FOR DECISION
Penny J.
Released: December 22, 2011
[^1]: 2009 ONSCDC 65802, [2009] O.J. No. 4913