CITATION: Humanics Universal Inc. v. Ottawa (City), 2013 ONSC 2846

DIVISIONAL COURT FILE NO.: 12-DC-1877

DATE: 2013/05/22

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’Neill J.

BETWEEN:

Humanics Universal Inc. and Dr. Ranjit Perera

Applicants (Moving Parties)

– and –

The City of Ottawa and The Ontario Municipal Board

Respondents

Dr. Ranjit Perera, Self Represented

Yavar Hameed, for Humanics Universal Inc.

Matthieu Charron, for the City of Ottawa

Stan Floras, for the Ontario Municipal Board

HEARD at Ottawa: April 15, 2013

REASONS ON MOTION FOR LEAVE TO APPEAL

PART A: Introduction

[1] The Applicants seek leave to appeal the decision of Ontario Municipal Board (“OMB”) Chair Lynda Tanaka, dated December 5, 2012. In her decision, the Chair dismissed the Applicants’ Request for Review of decision PL100948 of Board Member Denhez dated February 6, 2012 (the “Denhez decision”).

[2] The Applicant Humanics Universal Inc. is a registered family owned corporation and Dr. Ranjit Perera is the President of Humanics. Dr. Perera and his family are the sole owners of a 0.8 hector Humanics subdivision in Cumberland – a rural area of Ottawa, Ontario. They have been engaged in the development of the property since 2006. The dispute over draft plan conditions relates to the relevance, fairness, reasonableness and consistency of the conditions, as well as the process the City followed with respect to the Draft Plan approval of the Humanics subdivision for the Applicants, as future home owners and as small developers.

[3] On February 20, 2013, the Applicants filed a fresh as amended notice of motion for leave to appeal. As grounds for the motion, they set out the following:

i. Misapplication of “Public Interest” in denial of reconsideration;

ii. Legal error in test for motion to strike Charter arguments;

iii. Legal error in consideration of post-hearing evidence;

[4] At paragraphs 63 and 64 of their factum, the Applicants set out the following:

63. Based on the foregoing, the Applicants seek:

a) An order granting leave to appeal the reconsideration of the Board’s decision of December 5, 2012;

b) Costs of this motion;

c) Such further relief as this Honourable Court may permit.

64. If leave to appeal is granted the Applicants will seek the following order:

a) That the Reconsideration decision of the Board dated December 5, 2012 be set aside;

b) A declaration on the pure question of law that contrary to Denhez decision on this issue that: “Fair and Reasonable use and enjoyment of a person’s home and homestead is a right that falls within section 2 and/or 7 of the Charter.

c) Other Charter and process issues relating to Issue 6 in the Applicants’ issue 6 be remitted to the Board for a redetermination after hearing any further evidence that the Applicants and the City of Ottawa may wish to present;

d) Determination of the issues arising from new evidence and new issues that have arisen since the Denhez hearing be remitted back to the Board.

e) Any further issues that the Applicants may wish to submit and the Court may allow

f) Costs of this appeal.

[5] Arguments and submissions with respect to the motion for leave to appeal were made before me at Ottawa on April 15, 2013. At the conclusion of argument, I reserved my decision pending the release of written reasons.

PART B: The Standard of Review

[6] The standard of review of a decision of the OMB was summarized by the Divisional Court in Bernard Homes Ltd. v. York Catholic District School Board, 188 O.A.C. 115 (Div. Ct.) at para. 10:

The Court of Appeal for Ontario concluded in London (City) v. Ayerswood Development Corp., [2002] O.J. No. 4859, that the proper standard of review for an OMB decision was one of either correctness or reasonableness, depending upon the nature of the particular question in issue. Questions of law that engage the expertise of the OMB, such as the interpretation of its own statute, attract a standard of reasonableness. Questions of law of a more general application for which the OMB can claim no special expertise are to be reviewed on a standard of correctness.

[7] In the recent Divisional Court decision Hobo Entrepreneurs Incorporated v. Sunnidale Estates Ltd., 2013 ONSC 715, Justice Ducharme discussed the appropriate standard of review in OMB appeals, noting at para. 15, “the Court need not be satisfied that the decision is wrong, or even probably wrong. Rather, it must be satisfied that there is some good reason to doubt the correctness of the Board’s decision on a question of law.”

[8] Ultimately, under Rule 62.02(4)(b), in order to obtain leave to appeal to the Divisional Court, the Appellant must establish that (Maxwell v. Ottawa (City), 2012 ONSC 7224 at paras. 6-9):

(1) The proposed appeal raises a question of law;

(2) There is good reason to doubt the correctness of the decision of the OMB with respect to the question of law raised; and

(3) The question of law is of sufficient general or public importance to merit the attention of the Divisional Court.

PART C: The Decision of the Chair dated December 5, 2012

[9] In her decision dated December 5, 2012, Chair Lynda Tanaka dismissed the Applicants Request for Review for the following three reasons:

i. Rule 113 of the Municipal Board Act prescribes a 30 day limitation period to apply for a Request for Review of the decision. The Chair found that the Applicants waited more than nine months before making their application and that to waive this requirement in the subject case was not in the public interest.

ii. The Chair found that the request was an attempt to re‑argue the constitutional or Charter challenge to the city’s draft plan conditions.

iii. The Chair concluded that the request attempted to re‑argue the Board’s finding to impose a 6 meter access allowance within the slope setback as a condition of draft plan approval. The Chair stated that:

I have no reason to interfere with the exercise of this discretion, particularly when it is based on geotechnical evidence which may be overseen by a public authority who considers whether it is feasible to implement to carry out their mandate...The Board Member hearing evidence on the slope of a specific site is in a best position to assess the setback after hearing from the public authorities and Dr. Perera’s expert witness.

PART D: The Grounds for Appeal

i. Misapplication of “public interest” in denial of reconsideration

[10] The Chair dealt with a portion of this issue at pages 1 and 2 of her decision. I reproduce in part below her reasons:

First of all, this Request was filed in excess of nine months following the issuance of the Board Decision. The Board requires very good reasons to extend the 30 day time requirement in the Rules to consider a request. The Board recognizes that its decisions have a significant effect on public and proprietary interests and the Board strives to achieve finality with its decisions. I also recognize that representatives of both the public and private sector rely upon Board decisions. Certain emails included in the Request (such as Exhibit “S” or Exhibit “T”) show that both the City and Dr. Perera have been working diligently toward clearance of the draft conditions which rely upon the findings and the orders in the Decision. The set of draft conditions found at Exhibit “S” illustrate this point. I also note (Book 2, Exhibit “R”) the email dated June 15, 2012, from Dr. Perera to Derrick Moodie (and other individuals) states “I am willing to sign the draft Plan approval conditions except for one condition that is the issue of the 6 meter access allowance issue. Even on this issue I am willing to sign the Agreement with the access allowance as a provisional condition, subject to final resolution of this issue”. This email illustrates how both parties, and in particular the City relied upon the findings in the Decision to prepare, circulate and finalize the draft plan conditions. To review or reopen the Decision at this time, is not in the public interest. This Request does not adequately explain why the Board should waive the 30 day time requirement in rule 113 of the Board Rules.

[11] The Applicants argued that there was a “public interest in having the matter reopened by the OMB as the decision was important to home owners and small developers alike.” The Applicants also argued that the existence of potential Charter issues meant that this matter was necessarily of public interest, extending beyond the immediate interests of the parties to the dispute.

[12] The Respondents submitted that Rule 113 of the Ontario Municipal Board Rules of Practice and Procedure clearly states that the OMB cannot consider a Request to Review if there is no “valid and well-founded reason to extend the time” beyond the 30 day limit. In this case, the Respondents argued that the Chair clearly found that there was no such reason, and it would not be in the public interest to allow the Review to proceed given the importance attached to the finality of decisions.

[13] Rule 113(c) of the Ontario Municipal Board Rules of Practice and Procedure provides that the Board will not consider a request for review:

(c) the request is filed 30 days after the date of the Board’s written decision unless the Chair determines there is a valid and well-founded reason to extend this time.

[14] Rule 115.01 of the Rules provides that:

The Chair may exercise his/her discretion and grant a request and order either a rehearing of the proceeding or a motion to review the decision only if the Chair is satisfied that the request for review raises a convincing and compelling case that the Board:

(a) acted outside its jurisdiction;

(b) violated the rules of natural justice or procedural fairness, including those against bias;

(c) made an error of law or fact such that the Board would likely have reached a different decision;

(d) heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

(e) should consider evidence which was not available at the time of the hearing, but that is credible and could have affected the result.

[15] As indicated above, the Chair found that the Request was filed in excess of nine months following the issuance of the Board Decision. I agree with the Respondents’ position that Rule 115.01 does not come into play, once the Chair has found that the Applicants have not satisfied Rule 113(c). The Chair carefully analyzed Rule 113(c) and concluded for the reasons given that there was no valid and well-founded reason to extend the 30 day time period. Her decision rested primarily on the need to achieve certainty and finality with respect to decisions. In addition, she found that as at June 15, 2012, Dr. Perera was “willing to sign the draft Plan approval conditions except for one condition that is the issue of the 6 metre access allowance issue. Even on this issue I am willing to sign the Agreement with the access allowance as a provisional condition, subject to final resolution of this issue.” Accordingly, the Chair concluded that both the Applicants and Respondents had relied upon the findings in the Denhez decision with a view to moving forward and that having cleared all but one of the draft conditions, it would not be in the public interest to review or reopen the Decision some nine or ten months later.

[16] In my view, there is no reason to doubt the reasonableness or the correctness of the Chair’s decision in interpreting Rule 113(c) as she did, and in finding that there was no valid and well founded reason to extend the timelines.

ii. Did the OMB err by applying the wrong test in a motion to strike Charter arguments?

[17] At paragraphs 36 and 37 of its factum, the Applicants stated as follows:

This Appeal involves the clarification of the appropriate legal test for a motion to strike pursuant to subsection 51(53) of the Planning Act, R.S.O. 1990, c. P. 13 in respect of arguments relating to fundamental rights, freedom of expression and equality Charter arguments. The “plain and obvious” test should be confirmed by this Court as the appropriate test for a motion to strike for appeal issues to the Board for adjudication under the Planning Act particularly when the issues involve fundamental Charter issues, and issues of significant public interest beyond the parties involved in the litigation, as in the present case.

Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.

Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.

R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765.

The Board erred in failing to adopt the “plain and obvious” test set out in Hunt v. Carey, instead purporting that there is “no genuine issue worthy of the adjudicative process” and in so doing also wrongly applied the Board’s own test as set out in East Beach Community Association v. Toronto (1996) (the East Beach case).

[18] The Chair dealt with this issue at page two of her decision where she stated:

I have also decided to dismiss this Request on the basis that it is an attempt to re-argue Dr. Perera’s constitutional or Charter challenge to the City’s draft plan conditions. I am satisfied that the Board conducted a proper legal analysis of the City’s motion to dismiss the Charter challenge in the section of the Decision referred to as “4.4 Charter Observations and Findings”. The Request asserts that it was incorrect for the Board to apply the test set out in East Beach Community Association v. Toronto (1996) to the issues raised in the City’s motion to dismiss. The Request argues that the “plain and obvious” test, set out in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 should have been applied. This test places a lower threshold upon a party who wishes to advance an issue at an appeal. The difficulty with this argument in the Request is that it fails to take into account that subsection 51(53) of the Planning Act sets out a distinct test for the Board to apply on a motion to dismiss an appeal of conditions to a draft plan of subdivision. This statute imposes an obligation upon the Board to inquire into the merits of the appeal and determine whether there are genuine issues worthy of the adjudicative process. The “plain and obvious” test does not apply to a dismissal motion of a Planning Act instrument. Furthermore, the Request attempts to re-argue the motion to dismiss the Charter challenge and does not cite or introduce any new case law which is relevant to this issue that was not available at the time of the motion.

[19] The applicable portion of s. 51(53) of the Planning Act, R.S.O. 1990, c. P.13 states:

Despite the Statutory Powers Procedure Act and subsection (52), the Municipal Board may dismiss an appeal without holding a hearing on its own initiative or on the motion of any party, if,

(a) it is of the opinion that,

(i) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Board could give or refuse to give approval to the draft plan of subdivision or determine the question as to the condition appealed to it...

[20] The Denhez decision dealt at length with the Applicant’s Charter arguments, particularly at pages 217 to 221, under the heading: Charter Observations and Findings. I have carefully reviewed the findings set out therein together with the Chair’s decision on this issue. I agree with the Chair that the Request for Review is an attempt to re‑argue the constitutional or Charter issues in relation the City’s draft plan conditions and the City’s planning processes.

[21] It is true that the “plain and obvious” test places a lower threshold upon a party who wishes to advance an issue at an appeal then does the test set out in East Beach where at para. 9 it is stated in part as follows:

What these particular provisions allow the Board to do is seek out whether there is authenticity in the reasons stated, whether there are issues that should affect the decision in a hearing and whether the issues are worthy of the adjudicative process.

[22] But by either test, I am satisfied that there is no reason to doubt the correctness or reasonableness of the Chair’s decision, where she concluded that “the Request attempts to re-argue the motion to dismiss the Charter challenge and does not cite or introduce any new case law which is relevant to this issue that was not available at the time of the motion.”

[23] I see no reason to interfere with the Chair’s decision on this point.

iii. Did the OMB err by not recognizing that “fair and reasonable use and enjoyment of a person’s home and homestead is a right that falls within section 2 and/or section 7 of the Charter”?

[24] This issue was dealt with in the Denhez decision and at page 2 of the Chair’s decision. At p. 17 of the Denhez decision it is stated:

Dr. Perera’s argument was essentially identical to that of counsel in Unger. The only difference was that instead of citing just Section 7’s right to liberty, he also cited Section 2(b), freedom of expression. In his words,

Our use we make in our homes is part of our expression....Even if we have a slope on our property. It’s the total prohibitive nature that calls for a Charter challenge. This is private homes.

There are two difficulties with that approach. First, it presupposed a definition of “expression” so open-ended as to be virtually meaningless. If, say, rules about soil erosion are construed as limiting “expression”, then is there any legislation which does not infringe the Charter? That was never explained.

More importantly, the “expression” argument suffered the same weakness as the “liberty” argument. Even if one’s own home were a form of “expression” protected by the Charter, Unger found that subdivision is not about one’s own home, but about conveying property to others, where “there are no protected rights in play”. There is no constitutional right to subdivide land.

In summary, even if Charter rights to self-expression, life, liberty and security conferred a constitutional right for homeowners to build on allegedly unstable slopes or in the riparian zone of watercourses (a proposition which the Board finds unfounded), this right would at most be applied to the homeowners seeking that supposed form of “expression”, not to the company that had been drawing their property lines on the map.

[25] The Applicants also argued that the equality provisions of the Charter were invoked on the basis that “small rural developers” were a “disadvantaged group”. The Board dealt with this argument at pages 17 to 19 of its decision. In its conclusion, the Board stated:

The Board was shown nothing to suggest that investment of time and money in subdivision negotiations, however onerous, is a constitutional issue – nor how a single process, which treats applicant developers equally, offends the principle of “equality”.

[26] I agree with this conclusion and I find no reason to grant leave to appeal so as to permit a re-argument and re-hearing of Charter issues in a subdivision process. The arguments are not linked to one’s own home, but rather to the business activity of conveying property to others, and in a process months, if not years away, from homeowner and homesteader occupation, possession and use.

iv. Did the OMB err by failing to consider post-hearing evidence?

[27] The main thrust of the Applicants’ argument is that the Board erred in dismissing the Applicants’ request to reconsider by failing to consider the timing of the discovery of at least four pieces of new evidence previously unavailable, but most importantly, new evidence relating to the inconsistent application of the six metre setback. As set out at para. 56 of the Applicants’ factum, the Applicants submitted that “this evidence clearly points to differential treatment in the application of the six metre access allowance with respect to the Aveia Subdivision Development”. At para. 59 the Applicants went on to state that:

...the new evidence adduced by the Applicants indicates that the 6 metre “access allowance” setback from the stable top-of-slope of each ravine was not applied to a large commercial development in the Ottawa area, contrary to the City’s evidence that the setback was being applied as a rule. Whereas the Applicants argued that the setback should be determined on a case‑by‑case basis in relation to the technical and topographical landscape of a particular site, the City’s evidence, which was accepted, indicated that the setback was applied as a matter of policy by the City. This evidence was in fact false.

[28] The Denhez decision dealt in detail with the slope setback issue, at pages 35 to 37 inclusive. The Board stated at p. 37 as follows: “The Board found nothing, ‘in the green line’, which failed the test in Jock River.”

[29] I point out the following:

i. The onus is on the developer to demonstrate that soils are suitable;

ii. Dr. Perera’s engineer from Trow was found to have agreed with the City’s green line;

iii. The six meter allowance was referred to as a “standard”, but not as a rigid or unbending rule that could not be subject to variation or amendment in a particular case.

[30] I accept the City’s submission outlined at para. 25 of its factum that “[t]he fact that different plans of subdivisions may be approved with slope setbacks that do not conform to the 6 meter standard in no way alters the evidence that the standard setback was appropriate in the Applicants’ case.”

[31] The Chair recognized in her December 5, 2012 decision that the six meter access allowance was a standard and that for this site, the standard was reasonable and should be included as a part of the condition of subdivision. The Chair was aware that the six meter allowance may not have been applied consistently in the rural area of the city along each watercourse, but correctly concluded, in my view, that “the Board Member hearing evidence on the slope of a specific site is in the best position to assess the setback after hearing from the public authorities and Dr. Perera’s expert witness.”

[32] I see no reason to interfere with the exercise of this discretion. Nor do I see any reason why the reconsideration decision of the Chair be set aside to permit a re-analysis and a re‑consideration of the six meter allowance issue within the context described above.

[33] Dr. Perera dealt specifically with the AVEIA subdivision issue at para. 88 of his affidavit sworn October 9, 2012 which I reproduce below in full:

Then in around the last week of June I came across the aveia development being done by Boulet Homes and obtained a copy of the layout of that development. This indicated that they were building 24 town house from 15 meters from the top of slope from Cardinal Creek, without any allowance for a 6 meter access allowance. This new evidence completely contradict the evidence led by the City at the OMB hearing, that the city insist on a 6 meter access allowance all the time and based on which the OMB made its ruling. The Cardinal Creek, unlike the creeks in the Humanics Sub-Division was a major creek, with significant evidence of slope failures. I also took some pictures of this development and the Cardinal Creek adjoining this development. Attached as (Annex P) is the new evidence I came across on this matter.

[34] In submissions, Dr. Perera also referred to the sub-division plan of Dr. Taite, where he argued that the linear park setback, the eight meter buffer, was not being consistently applied.

[35] The Applicants went on to argue that the Chair erred in dismissing their request to reconsider by failing to appropriately consider the impact of the new evidence upon the Applicant’s Charter arguments, as well as “equality concerns about the discriminatory and/or unfair and unreasonable treatment of future home owners and small developers.” The submission made was that the inconsistent application of the six meter access allowance impacted Charter arguments and equality concerns with respect to small developers, rural developers and the treatment of future home owners.

[36] I would dismiss this aspect of the Applicants motion as well. The Chair’s decision, which recognizes that the “Board Member hearing evidence of the slope of a specific site is in the best position to assess the setback after hearing from the public authorities and Dr. Perera’s own witness” was reasonable and appropriate in the circumstances. That the standard allowance was applicable in the Applicants case does not invoke or raise Charter equality issues in relation to technical or topographical landscape at a particular site.

PART E: Conclusion

[37] For the reasons herein given, the Applicants’ motion for leave to appeal is dismissed with costs. The Respondents shall file a Bill of Costs together with cost submissions with the Trial Coordinator at Ottawa by May 28, 2013. The Applicants may file a response to the Bill of Costs and costs submissions by June 7, 2013.

[38] Order accordingly.

O’Neill J.

Released: May 22, 2013

CITATION: Humanics Universal Inc. v. Ottawa (City), 2013 ONSC 2846

DIVISIONAL COURT FILE NO.: 12-DC-1877

DATE: 2013/05/22

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’Neill J.

BETWEEN:

Humanics Universal Inc. and Dr. Ranjit Perera

Applicants (Moving Parties)

– and –

The City of Ottawa and The Ontario Municipal Board

Respondents

Reasons on motion

for leave to appeal

Released: May 22, 2013