CITATION: Whiteley v. Thomasfield Homes Ltd., 2012 ONSC 6445
DIVISIONAL COURT FILE NO.: 283/12
DATE: 20121123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
HUGH WHITELEY
Moving Party/Appellant
– and –
THOMASFIELD HOMES LTD. and THE CORPORATION OF THE CITY OF GUELPH and D FOUR GUELPH DEVELOPMENTS LTD.
Responding Parties/Respondents
J. Croome, G. Andrews, for the Appellant
M. Rodenburg, for the Respondent Thomasfield Homes Ltd.
S. Worsfold, S. Smith, for the Respondent The Corporation of the City of Guelph
P. Harrington, for the Respondent D Four Guelph Developments Ltd.
HEARD: October 11, 2012
DUCHARME J:
REASONS FOR JUDGMENT
I. Introduction
[1] This is a motion by the Appellant, Dr. Whiteley, made pursuant to s. 61.03 of the Rules of Civil Procedure and s. 96(1) of the OMBA for an order granting leave to appeal the decision of the OMB dated May 14, 2012.
[2] In that decision Vice-Chair J.V. Zuidema dismissed Dr. Whiteley’s appeal to the OMB concerning the proposed development by Thomasfield Homes Limited [“Thomasfield”] on land it owns in Guelph, Ontario. The basis for the dismissal was, pursuant to sections 17(45)(a)(i), 34(25) (a)(i), and 51(53) (a)(i), of the Planning Act, that the Moving Party had not presented any apparent land use planning grounds upon which the plan or part of the plan that is the subject of the appeal could be approved or refused by the Board.
II. Grounds of Appeal
[3] The Appellant raises two grounds of appeal:
(1) The Board erred in law in effectively equating land use planning grounds” with “evidence from a land use planner.”
(2) The Board erred in law in finding that the Appellant had not tendered a land use planning opinion.
III. Test for Leave to Appeal
[4] An appeal lies from the Ontario Municipal Board to the Divisional Court, with leave of the Divisional Court, on a question of law. With the exception of any appeal rights to the Divisional Court with leave on a question of law, every decision or order of the Ontario Municipal Board is final and no order, decision or proceeding of the Board shall be questioned or reviewed, restrained or removed by prohibition, injunction, certiorari or any other process or proceeding in any court. The finding or determination of the Ontario Municipal Board upon any question of fact within its jurisdiction is binding and conclusive.
[5] In order to obtain leave to appeal to the Divisional Court the Appellant must establish that:
(1) Does the proposed appeal raise a question of law?
(2) Is there reason to doubt the correctness of the decision of the OMB with respect to the question of law raised?
(3) Is the question of law of sufficient general or public importance to merit the attention of the Divisional Court?
[6] I will discuss each of these in turn.
IV. Standard of Review
[7] The proper standard of review by the Divisional Court of a decision of the Ontario Municipal Board is one of either correctness or reasonableness, depending on the nature of the particular question of law. Questions of law that engage the specialized expertise of the Board, such as the interpretation of its own statute, attract a standard of reasonableness. Questions of law that are of general application for which the Board has no special expertise are reviewed on a standard of correctness.
[8] The Ontario Municipal Board has specialized expertise in interpreting the provisions of the Planning Act and in applying its underlying policies. The Board is a highly specialized tribunal in a technical field that makes decisions every day about matters that are outside the normal expertise of the Court. This factor supports a higher degree of deference and therefore, in cases where the Board is dealing with appeals involving the interpretation of the Planning Act, the standard of review is that of reasonableness.
[9] In matters of planning, the Ontario Municipal Board is entitled to considerable deference. Any court should be careful not to overrule a decision of the Board on a planning matter except in the clearest of cases.
V. Does the Proposed Appeal Raise a Question of Law?
[10] The appellant points to two errors of law made by the Vice-Chair:
(A) The Board erred in law in effectively equating “land use planning grounds” with “evidence from a land use planner;” and
(B) The Board erred in law in finding that the moving party had not tendered a land use planning opinion.
[11] I shall consider these in turn.
A. Does the question of whether the Board effectively equated “land use planning grounds” with “evidence from a land use planner” raise a question of law?
[12] Ms. Croome submits that by applying a standard that requires exclusively evidence from a land use planner, rather than evidence of “land use planning grounds” as set out in sections 17(45)(a)(i), 34(25) (a)(i), and 51(53) (a)(i), of the Planning Act, the Board has clearly applied an incorrect standard separate from any finding of fact and committed an error of law.
[13] As I will explain below, the Board did not decide that the requisite “land use planning grounds” as set out in sections 17(45)(a)(i), 34(25) (a)(i), and 51(53) (a)(i), of the Planning Act require evidence from a land use planner. However, such an interpretation of the phrase “land use planning grounds” in these sections of the Planning Act would raise a question of law.
B. Does the question of whether the Board erred finding that the moving party had not tendered a land use planning opinion raise a question of law?
[14] Ms. Croome’s complaint principal complaint here relates to the use the Board made of the affidavit of Mr. Usher, a land use planner. The Board said the following about his affidavit:
The substance of the Usher Affidavit is wholly inadequate because it contains no opinions to support the appeal. It only states that Mr. Usher “can provide the appellant, Dr. Hugh Whitely, with independent planning services in this appeal, and [has] agreed to appear as an expert land use planner on Dr. Whiteley’s behalf.” There is no analysis or specificity provided. The Board is left wondering as to what exactly will this witness say and what are the planning grounds needed to support the appeal. It is clear from the Response materials filed in November 2011, that Mr. Usher had already been retained so why his planning opinions were not disclosed is a mystery. His scant Affidavit is not sufficient to survive an attack arising from a Motion to Dismiss.
The Appellant did provide an Affidavit sworn by himself as well as Gord Nielsen, an ecologist. Both Affidavits were sworn in November 2011. The Appellant’s Affidavit speaks to the evidence he would provide at a hearing on the merits associated with issues of watersheds and hydrology. Mr. Nielsen’s Affidavit addresses his conclusions, namely that in his view, the Environmental Impact Study done on behalf of the Applicant did not properly address relevant policies in the City’s Official Plan. Mr. Nielsen is specific in his references to those policies. The problem remains that technical evidence which would be provided by Messrs. Nielsen and Whiteley are inputs to a planning opinion. No planning opinion on behalf of the Appellant was provided. The law requires that in order to asses a Motion to Dismiss on the basis of a failure to disclose any apparent land use planning grounds in the Notice of Appeal, I need to do an analysis whereby I can determine whether the plan or part of the plan that is the subject of the appeal could be approved or refused by the Board. With no planning opinion provided to support the appeal, I am unable to do this analysis. [Emphasis added.]
[15] Ms. Croome emphasizes that the Board did not mention or acknowledge the following part of Mr. Usher’s affidavit: “I have reviewed the grounds and key supporting documentation for this appeal and have consulted with Mr. Gord Nielsen. I have reviewed and am in support of Mr. Nielsen’s affidavit.” Ms. Croome argues that this statement makes it clear that Mr. Usher, the land use planner, would give evidence supporting all of the land use planning points made by Mr. Nielsen. As such, she submits that the Board was incorrect in saying that Mr. Usher’s affidavit “contains no opinions to support the appeal.” Similarly, she submits that the Board should not have been “left wondering as to what exactly will this witness say and what are the planning grounds needed to support the appeal.”
[16] As I will explain below, I agree with the approach the Board took to the three paragraph affidavit of Mr. Usher. But that is not the point at this stage. The question is whether or not this raises an issue of law. Clearly, it does not. The Board’s assessment of the question of whether or not Dr. Whitely had provided any apparent land use planning grounds upon which the plan or part of the plan that is subject of the appeal could be approved or refused by the Board is clearly a question of mixed fact and law. The Board’s analysis of Mr. Usher’s affidavit in the context of the other evidence led by Mr. Whitely is also a question of mixed fact and law.
VI. Is There Reason to Doubt the Correctness of the Decision of the OMB with Respect to the Question of Law Raised?
A. Is there reason to doubt the correctness of the Board’s effective equation of “land use planning grounds” with “evidence from a land use planner”?
[17] In making this submission Ms. Croome points to the following parts of the Board’s decision made after the Board concluded that the brief paragraph from Mr. Usher, a land use planner, was unhelpful:
The Appellant did provide an Affidavit sworn by himself as well as Gord Nielsen, an ecologist. Both Affidavits were sworn in November 2011. The Appellant’s Affidavit speaks to the evidence he would provide at a hearing on the merits associated with issues of watersheds and hydrology. Mr. Nielsen’s Affidavit addresses his conclusions, namely that in his view, the Environmental Impact Study done on behalf of the Applicant did not properly address relevant policies in the City’s Official Plan. Mr. Nielsen is specific in his references to those policies. The problem remains that technical evidence which would be provided by Messrs. Nielsen and Whiteley are inputs to a planning opinion. No planning opinion on behalf of the Appellant was provided. The law requires that in order to asses a Motion to Dismiss on the basis of a failure to disclose any apparent land use planning grounds in the Notice of Appeal, I need to do an analysis whereby I can determine whether the plan or part of the plan that is the subject of the appeal could be approved or refused by the Board. With no planning opinion provided to support the appeal, I am unable to do this analysis. [Emphasis added.]
[18] While the Board did twice mention the lack of a “planning opinion” this does not support the moving party’s contention. The Board correctly stated the test for an appeal and considered all the evidence to determine whether Dr. Whiteley had identified “genuine, legitimate and authentic planning reasons.” The Board looked at the totality of the evidence presented by Dr. Whiteley and, in light of the evidence provided by the City of Guelph and Thomasfield, decided that the evidence was not sufficient to meet the required test of genuine, authentic and legitimate planning grounds. In so doing, the Board properly analysed whether the evidence satisfied the correct legal test. Not only is there no reason to doubt the correctness of the Board’s conclusion but this determination constitutes a question of mixed fact and law.
B. Is there reason to doubt the correctness of the Board’s finding that the moving party had not tendered a land use planning opinion?
[19] As I have already indicated I do not think that this raises a question of law. However even if it did, there is no reason to doubt the correctness of the Board’s decision. The Board was correct in observing that Mr. Usher’s affidavit lacks any specificity. It consisted of three paragraphs only the second of which is at all substantive. The suggestion that the sentence “I have reviewed and am in support of Mr. Nielsen’s affidavit” means that he agreed with the entirety of Mr. Nielsen’s 31 page affidavit is untenable. If that was going to be the import of Mr. Usher’s evidence that should have been made clearer in his affidavit. Both the timing and the structure of Mr. Usher’s affidavit strongly suggest that its inclusion was a slapdash attempt to address a weakness in Dr. Whiteley’s case.
[20] Moreover, the Board did consider the substance of the other materials filed by the moving party. The Board’s conclusion was that these materials were not sufficient to sustain an appeal as all they did was raise “concerns and apprehensions associated with the completeness, accuracy and reliability of the reports.” This is consistent with the OMB jurisprudence. As noted in Re Hanover (Town) Zoning By-law 2458-04, [2005] O.M.B.D. No. 749 (OMB) at para 13:
The Board finds that the body of case law developed with respect to motions for dismissal makes it apparent that it is not sufficient for an appellant to raise a "triable issue" or to cite grounds for appeal that are "within the realm of land use planning concerns". For a matter to proceed to a full hearing, the Board finds that an appellant may not simply raise apprehensions without demonstrating that there are legitimate land use planning concerns.[^1]
[21] Thus, even if these opinions had been properly expressed in the affidavit of Mr. Usher, they would not have disclosed the apparent planning grounds necessary to justify the appeal.
VII. Is the Question of law of sufficient general or public importance to merit the attention of the Divisional Court?
[22] As the moving party has failed to meet the first two branches of the test for leave to appeal to the Divisional Court, it is not strictly necessary to address this ground. However, I shall do so to allay a concern identified by the moving party about the possible precedential impact of the Board’s decision.
[23] Ms. Croome’s principal contention here is that the decision of the Board necessarily implies that individuals other than land use planners, even technical experts such as ecologists, cannot provide land use planning evidence on an appeal to the Board. She submits that this would have serious ramifications on appeals before the Board, particularly appeals in the public interest raising planning and environmental issues with developments.
[24] As is apparent from the foregoing reasons, I have rejected the contention that the Board made any such finding. The decision of the Board in this case was a case-specific determination that, in this case, the Moving Party, by not producing a planning opinion in response to the overabundance of evidence provided by the Respondents (including comprehensive professional planning opinion evidence provided by three Registered Professional Planners), did not produce sufficient evidence to justify a hearing. However, for the sake of clarity, I emphasize that the decision of the Board concerns only these parties and does not stand for the proposition that the Board has created a new or heightened test for evidence of land use planning grounds.
VIII. RESULT
[25] For the foregoing reasons, the application for leave to appeal the decision of the Ontario Municipal Board is dismissed.
[26] If the parties cannot agree on costs of the application, they may make brief written submissions within 30 days of the release of these reasons.
Ducharme J.
Released: November 23, 2012
CITATION: Whiteley v. Thomasfield Homes Ltd., 2012 ONSC 6445
DIVISIONAL COURT FILE NO.: 283/12
DATE: 20121123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
HUGH WHITELEY
Moving Party/Appellant
– and –
THOMASFIELD HOMES LTD. and THE CORPORATION OF THE CITY OF GUELPH and D FOUR GUELPH DEVELOPMENTS LTD.
Responding Parties/Respondents
REASONS FOR JUDGMENT
Ducharme J.
Released: November 23, 2012
[^1]: See also East Beach Community Assn. v. Toronto (City), [1996] O.M.B.D. No. 1890 (OMB), at para. 12; Pemic Komoka Development Corp. v. Middlesex Centre (Township), [2009] O.M.B.D. No. 438 (OMB) at para. 19; and Meier v. Niagara Falls (City), [2009] O.M.B.D. No. 843 (OMB) at para 9.