Avery v. Pointes Protection Association, 2016 ONSC 6463

CITATION: Avery v. Pointes Protection Association, 2016 ONSC 6463

DIVISIONAL COURT FILE NO.: 999-15-ML

DATE: 2016/11/28

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

JEFF AVERY, PATRICIA AVERY, and 1704604 ONTARIO LTD.

Orlando M. Rosa, J. Paul R. Cassan and Tim J. Harmar, for the Applicants (Appellants in Appeal)

Applicants (Appellants in Appeal)

• and -

POINTES PROTECTION ASSOCIATION, THE CORPORATION OF THE CITY OF SAULT STE. MARIE, and KLAAS OSWALD

Mark Wiffen, for the Respondents

Respondents

HEARD: In writing

REASONS FOR DECISION ON APPLICATION FOR LEAVE TO APPEAL

ellies j.

INTRODUCTION

[1] The applicants (the “developers”) seek leave under s. 96(1) of the Ontario Municipal Board Act, R.S.O. 1990 c. O.28, to appeal the decision of the Ontario Municipal Board (the “Board”) regarding a proposed residential development called “Pointe Estates”, in the Pointe Louise area of Sault Ste. Marie, Ontario. The Board dismissed the developers’ appeal from a decision of the Sault Ste. Marie City Council, in which the council denied the developers’ request for an amendment to the city’s Official Plan, rezoning, and draft subdivision approval, among other things.

[2] The developers allege that the Board committed a number of errors, ranging from such fundamental errors as a denial of natural justice, to more specific errors, such as misinterpreting the meaning of terms used in policy statements issued under the Planning Act, R.S.O. 1990 c. P.13 (the “Act”).

[3] In these reasons, I explain why none of the issues raised meets the onerous test for granting leave, either because the issue is not a question of law, there is no reason to doubt the correctness or reasonableness of the decision, or the issue is not one of sufficient importance to warrant appellate review.

BACKGROUND FACTS

[4] The property in question is comprised of approximately 102.19 hectares of land, a portion of which is wetland. The property also includes the Alagash Canal, a man-made canal constructed approximately 60 years ago. The property is located inland from approximately 115 residences and seasonal homes located along the shoreline of Ste. Marie’s river. [^1]

[5] The developers propose to divide the property into a 91-lot subdivision. Using lagoon-based communities in Florida as a model, the developers propose to widen and extend the Alagash Canal and to build a new road through the property so as to provide both water and land access to all 91 lots.

[6] In order to bring their plans to fruition, the developers first approached the City of Sault Ste. Marie in 2004. [^2] Because the property is located within a coastal wetland area and within the Great Lakes Flood Line, the city recommended that the developers first seek approval from the Sault Ste. Marie Region Conservation Authority (the “SSMRCA”), which they did. The SSMRCA denied their application because it was concerned that the proposed development would interfere with the hydrologic function of the wetland.

[7] The developers appealed the SSMRCA’s decision to the Mining and Lands Commissioner. The appeal was settled when the developers agreed to obtain a hydrogeological study in accordance with Ministry of the Environment guidelines and requirements. Following completion of the study, the SSMRCA approved the developers’ plan, without conditions.

[8] However, a group that the developers allege was formed specifically to oppose the Pointe Estate development, the Pointes Protection Association (the “PPA”), sought judicial review of the Commissioner’s decision. Like the appeal to the Commissioner taken by the developers, the judicial review application was settled. Pursuant to minutes of settlement entered into between the PPA and the developers, the PPA agreed not to advance a position:

Before the OMB or in any subsequent legal proceeding that the Resolutions passed by the SSMRCA in regards to the Pointe Estates Development … are illegal or invalid or contrary to the provisions of the Conservation Authorities Act R.S.O. 1990 c. C.27 and Ontario Reg. 176/06 … or that the SSMRCA exceeded its jurisdiction by passing the … Resolutions with no reasonable evidence to support its decision and considered factors extraneous to those set out in subsection 3(1) of Ont. Reg. 176/06.

[9] The developers then applied to the city for:

(a) an amendment to the Official Plan;

(b) zoning by-law amendments;

(c) approval of a draft plan of subdivision;

(d) approval of a condominium common element draft plan of subdivision; and

(e) closure of a portion of a road known as “Alagash Drive”.

[10] Although the developers’ plans were approved by city staff, their requests were denied by city council. The developers appealed the council’s decision to the Board. A hearing lasting nearly three weeks was presided over by Board Member Blair Taylor. The Board heard from 24 witnesses during the hearing. Those witnesses included a number of experts.

[11] In reasons released on February 27, 2015, Member Taylor summarized his decision as follows (para. 8):

… the Board finds that the development application does not have appropriate regard for matters of provincial interest, is not consistent with the Provincial Policy Statement, is contrary to the Official Plan of the City of Sault Ste. Marie, does not have appropriate regard for the provisions of s. 51(24) of the Planning Act as they relate to the draft plan of subdivision and the draft plan of condominium, that the proposed zoning would be contrary to the Official Plan and the proposed development application in its entirety does not represent good planning.

[12] As a result of these findings, the Board dismissed the developers’ appeal.

[13] The developers raise numerous issues with the Board’s decision, to which I will now turn.

ISSUES

[14] The developers raise two primary issues. They allege that the Board erred in finding:

(1) that the development would have a negative impact on coastal wetlands, contrary to the 2014 Provincial Policy Statement (“PPS”) and the Official Plan; and

(2) that the development is contrary to the Official Plan on the basis that it is not “limited residential development”.

(See developers’ factum, paras. 1 and 176; PPA factum, para. 5.)

[15] In their factum, however, the developers allege the following specific errors on the part of the Board in their list of issues, namely that the Board:

(3) should have applied the 2005, rather than the 2014, PPS;

(4) failed to consider the issues of “negative impacts” and “limited residential development” in the context of the entire PPS;

(5) failed to apply the PPS at the appropriate geographic scale.

(6) failed to balance the loss of coastal wetlands against the improvement of fish habitat under the PPS in finding “negative impacts”;

(7) misinterpreted the meaning of “limited residential development” under the PPS;

(8) with respect to the witness, Peter Gagnon:

(a) breached procedural fairness and natural justice by letting Gagnon give expert evidence about wetland loss in contravention of the settlement agreement with PPA; and

(b) failed to provide reasons for preferring Gagnon’s evidence over that of their experts; and

(9) failed to give reasons.

[16] Clearly, these issues go beyond the two principle issues identified by the developers.

[17] In addition to specifically identifying the alleged errors set out above, the developers also allege a number of additional errors on the part of the Board in other parts of their factum. They allege that the Board:

(10) erred by ignoring expert evidence that the development is permitted under the PPS because it consists entirely of “recreational dwellings” (para. 128);

(11) did not properly have regard to information and materials considered by city council, as required under s.2.1 of the Act (para. 82)

(12) improperly ignored the decision of the SSMRCA ultimately to allow the developers’ application (paras. 58 and 87)

(13) improperly reached its own conclusions about the impact of the development on coastal wetlands and about whether the development constituted limited residential development (para. 60);

(14) failed to consider s.1.1 and s.2 of the Act and failed to follow the PPS (paras. 72 and 73).

(15) improperly interfered during the hearing and demonstrated bias against the developers (para. 49);

(16) improperly admitted the opinion evidence of Anthony Usher, a land use planner, as “fact evidence” (paras. 46 and 47);

(17) improperly refused to allow the developers to call two reply witnesses (para. 51);

(18) improperly refused to grant an adjournment before calling on the parties to make final submissions (para. 50);

(19) improperly limited those final submissions to two and one-half hours after hearing three weeks of evidence (para. 52); and

(20) improperly consulted an unknown third party in reaching its decision (para.180).

[18] The developers’ application for leave to appeal is governed by the provisions of Rule 61 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194. Rule 61.03(4) provides that the moving party’s notice of motion and factum shall “where practicable, set out the specific questions that it is proposed the Divisional Court should answer if leave to appeal is granted”. Unfortunately, that has not been done in either the notice of motion or the factum. I agree with the submission made on behalf of the PPA that, instead, the developers have taken a “shotgun approach” in advancing their application for leave to appeal. Indeed, the notice of motion actually lists 34 alleged errors of law on the part of the Board. I have proceeded on the assumption that the applicants have “narrowed” their grounds to those set out above.

[19] This sort of approach to an application for leave to appeal does no one any good. The sheer number of errors alleged serves to dilute, not to distill, the merits of the appeal. Unlike a case in which the question is whether an appeal should be allowed on any one of many issues, in an application for leave to appeal it is necessary to consider each and every alleged error in order to determine if leave should be granted and, if so, to formulate the questions for the Divisional Court. Where the number of errors alleged approaches those alleged in this case, that takes considerable time. The resulting delay likely weighs heavily on the parties, and on the court.

[20] I also agree with the submission made on behalf of the PPA that the complaints made by the developers can be grouped. However, I would group them differently than the PPA did in trying to address them all in its factum. I believe that all of the developers' complaints can be addressed while dealing with the following issues:

(1) the applicable Provincial Policy Statement;

(2) negative impacts on coastal wetlands;

(3) limited residential development;

(4) recreational dwellings;

(5) having regard to the decisions of council and SSMRCA and the information and materials before them;

(6) the evidence of Peter Gagnon;

(7) the evidence of Anthony Usher;

(8) breaching the minutes of settlement;

(9) consulting an unknown third party;

(10) procedural fairness; and

(11) reasons

[21] Before I address these issues, however, I must address one other, namely the test for granting leave to appeal.

TEST FOR GRANTING LEAVE

[22] Section 96(1) of the Ontario Municipal Board Act provides:

96. (1) Subject to the provisions of Part IV, an appeal lies from the Board to the Divisional Court, with leave of the Divisional Court, on a question of law.

[23] The jurisprudence developed under this section imposes two conditions in addition to the requirement that the issue involve a question of law, namely:

(1) that there is reason to doubt the correctness of the decision on that issue; and

(2) that the point of law is of sufficient importance to merit the attention of the Divisional Court.

See Aurora (Town) v. Sikura, 2011 ONSC 7642, at para. 2; Train v. Weir, 2012 ONSC 5157, at para. 4; McGregor v. Rival Developments Inc. (2003), 174 O.A.C. 297, 40 M.P.L.R. (3d) 107 (Div. Ct.), 2003 CarswellOnt 2991, [2003] O.J. No. 3062, at para. 12; Proudfoot Motels Ltd. v. Ontario (Municipal Board) (1996), 12 O.A.C. 35, 1996 CarswellOnt 2530, [1996] O.J. No. 2126, at para. 1, citing Toronto (City) v. Torgan Developments (1990), 36 O.A.C. 318 (Div. Ct.).

[24] I will expand upon the requirement that there be a question of law later in these reasons.

[25] With respect to the second requirement, namely that there be some reason to doubt the correctness of the decision, the parties disagree. The developers argue that there need only be “good reason” to doubt the correctness of the Board’s decision. The PPA submits that the test is whether the Board’s decision is “open to substantial doubt”. The difference in the positions of the two parties is tied to the question of what standard of review applies in an application for leave to appeal. The developers argue that the standard of review applicable on an application for leave to appeal is different than the standard of review on the appeal itself. They argue that the standard on a leave application is the less differential standard of correctness, even where, if leave is granted, the standard on the appeal would be the more differential standard of reasonableness. To put their submissions into context, a brief discussion of the different standards of review is necessary.

[26] In Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, the Supreme Court of Canada held that deference is owed to tribunals making decisions that are either within their field of expertise or that interpret their “own” statute or statutes closely connected to their function (: para. 54). With respect to these decisions, even on questions of law, the standard of review is reasonableness, not correctness. To be “reasonable”, a decision must fall within a range of possible acceptable outcomes which are defensible in respect of the facts and the law (para. 47).

[27] However, with respect to decisions not involving a tribunal’s own or a related statute, less deference may be shown. For example, decisions involving certain constitutional questions or true questions of jurisdiction are reviewed on the correctness standard (paras. 57 and 59).

[28] Returning to the test for leave to appeal a decision of the Board, some courts have applied a test by virtue of which the Board’s decision on a question of law must be open to “substantial doubt”: Aurora (Town) v. Sikura, at para. 2; Train, at para. 23. Other courts have applied a test by virtue of which the decision must be open to “very serious debate”: Kraft Canada Inc. v. Menkes Lakeshore Ltd. (2007), 2007 65611 (ON SCDC), 228 O.A.C. 1, 56 O.M.B.R. 391, at para. 13. Some courts have applied a “good reason to doubt” test: Dorsay Investments Ltd. v. Toronto (City), 2010 ONSC 3212 (Div. Ct.), at para. 18. Still others have applied a test in which there need be only “some reason to doubt” the decision: Ottawa (City) v. The TDL Group Corp., 256 O.A.C. 142, 64 O.M.B.R. 1, 2009 CarswellOnt 7168, [2009] O.J. No. 4816, at para 16. Lastly, some courts appear to have applied both the “some reason” and “serious debate” standards: R & G Realty Management Inc. v. North York (City) (2009), 62 O.M.B.R. 58, at paras. 4 and 15.

[29] It seems to me that, like the parties’ choice of words in this case, a court’s choice of language relating to this requirement for leave depends on the court’s view of the degree of deference that should be shown to the Board’s decision. Since Dunsmuir, many judges have recognized that, if leave is granted, the Board’s decisions on questions of law concerning its own or related statutes will be reviewed on a standard of reasonableness. Accordingly, many of those judges have applied that standard to the determination of whether leave ought to be granted: R & G Realty Management Inc., at para. 6; The TDL Group Corp., at para. 23; Royalcliff Developments Inc. v. Brampton (City), 2010 ONSC 5592, (Div. Ct.), at para. 12; Train, at para. 6.

[30] On the other hand, some courts, while recognizing that greater deference will be paid to the Board’s decision on certain questions of law if leave is granted, have continued to apply the less deferential standard of correctness at the leave stage: Dorsay Investments Ltd.,at paras. 18 and 23; Toronto (City) v. 621 King Developments Ltd., 2011 ONSC 3007, at paras. 8 and 47.

[31] I see no reason why the standard of review on an application for leave to appeal should be any different than the standard to be applied by the court, should leave be granted. Applying a less deferential standard on the leave application has little impact where a court denies leave. However, it may have a significant impact where a court grants leave on a question of law which will attract deference on the appeal. It makes no sense to grant leave to appeal by applying a less deferential standard where the appeal is unlikely to succeed once a more deferential standard is applied. Such a rule does little to help an already overburdened justice system.

[32] My view that the test on a motion for leave to appeal a decision of the Board should reflect the standard of review to be applied if leave is granted was shared by Blair J. (as he then was) in Material Handling Problem Solvers Inc. v. Essex (Town), [2003] O.J. No. 4619 (Div. Ct.). However, this approach was rejected by a panel of the Divisional Court in DeGasperis v. Toronto (City), 2004 18310 (ON SCDC), 185 O.A.C. 176, 2004 CarswellOnt 1093, [2004] O.J. No. 1153. In DeGasperis, Cunningham A.C.J. held at para. 4:

When questions of law are involved, correctness is the standard of review and simply because an administrative tribunal has a specialized expertise does not in my view mean that on questions of law the correctness standard ought to be modified.

[33] DeGasperis, however, was decided before Dunsmuir. As a result, I believe that it can no longer stand as authority for the proposition that the correctness standard must always apply in applications for leave to appeal decisions of the Board. Instead, I believe that a court being asked to grant leave from a decision of the Board must determine the likely standard of review to be applied on the appeal and apply that standard to the question of leave. Where it is reasonably possible that either the correctness or the reasonableness standard may apply, it is my further view that the less deferential standard of correctness ought to govern whether leave should be granted. To do otherwise risks a result in which leave to appeal is denied in a case where the appeal itself might be allowed.

[34] Once the degree of deference owed to the decision is made explicit, there is no need to employ different language with respect to the degree to which the question of law itself must be raised. It is enough that there be some legitimate reason to doubt either the correctness or the reasonableness of the Board’s decision. For the sake of these reasons, I will use the “good reason to doubt” phraseology.

[35] Finally, with respect to the third requirement for granting leave, in order to be sufficiently important, the question of law raised must be of general importance, “beyond the obvious importance to the parties”: 970204 Ontario Ltd. v. Lech, Lightbody and O’Brien, [2002] O.J. No. 809 (Div. Ct.), at para. 3.

[36] I now turn to the specific errors alleged by the developers.

ANALYSIS

The Proper Provincial Policy Statement

[37] Section 2 of the Act requires that all decisions made by the council of a municipality and by the Board “shall have regard” to matters of provincial interest, some of which are referred to in the section.

[38] Section 3(1) of the Act permits the Minister of Municipal Affairs and Housing to issue policy statements on matters relating to municipal planning that are in the provincial interest.

[39] At the time the developers applied to the city and council made its decision to deny the application, there was only one potentially applicable PPS, namely the 2005 PPS. However, by the time of the developers’ appeal to the Board, the Minister had issued another policy statement, namely the 2014 PPS.

[40] The 2014 PPS came into effect on April 30, 2014. There was a significant difference between the 2005 and the 2014 PPS as far as the developers' plans for the property were concerned. Pursuant to the 2005 PPS, development was permitted in non-provincially significant coastal wetlands, such as those found in the applicant’s land. However, the 2014 PPS precluded development even in non-significant coastal wetlands in certain areas, including the area of the proposed development in this case, unless a developer was able to demonstrate that “there will be no negative impacts on the natural features or their ecological functions” (: s. 2.1.5). I will deal in more detail with this below.

[41] In a pre-hearing motion, the developers submitted that the Board ought to apply the 2005, and not the 2014, PPS. The Board, however, held that the 2014 PPS applied. The developers argue that, in doing so, the Board failed to apply two long-standing principles by virtue of which the Board ought to have applied the 2005, and not the 2014, PPS. In Kalmoni Establishments Inc. v. Milton (Town), [1995] O.M.B.D. No. 1247, 32 O.M.B.R. 474, the Board held that a series of previous decisions required that the Board apply the official plan policies in effect at the time of the application from which the appeal is taken. The Board held similarly in Clergy Properties Ltd. v. Mississauga (City), [1996] O.M.B.D. No. 1840, 34 O.M.B.R. 277. The developers argue that the Board in this case erred in law in failing to follow the Kalmoni and Clergy principles when it applied the 2014, rather than the 2005, PPS.

[42] I agree with the developers that this raises a question of law: Royalcliff Developments Inc. v. Brampton (City), 2010 ONSC 5592, at para. 11. With respect to the degree of deference due to that question of law, Dunsmuir held that an exhaustive review was not necessary in every case to determine the proper standard of review. If existing jurisprudence has already satisfactorily established that standard, it need not be revisited (para. 57). As I indicated above, even questions regarding the interpretation of a statute may be subject to a reasonableness, rather than a correctness, standard if that statute is the tribunal’s own or “home” statute. That is the case with the Ontario Municipal Board and the Planning Act. It has already been determined by this court subsequent to the decision in Dunsmuir that decisions of the Board when applying the Act are subject to the reasonableness standard of review: D.D.S. Investments Ltd. v. Toronto (City) 2010 ONSC, at paras. 35-36; Royalcliff Developments Inc., at para. 11; Niagara Escarpment Commission v. Ontario (Joint Board), 2013 ONSC 2497, at para. 56. Even if the Board’s decision was reviewable on a correctness standard, however, I would not grant leave to appeal with respect to this issue. There is no good reason to doubt the correctness of the Board’s decision.

[43] Unlike the situation at the time that Kalmoni and Clergy were decided, the question of which PPS to apply is now explicitly set out in both the Act and the 2014 PPS itself. Section 3(5) of the Act states:

3. (5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Municipal Board, in respect of the exercise of any authority that affects a planning matter,

(a) shall be consistent with the policy statements under subsection (1) that are in effect on the date of the decision; and

(b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be. [Emphasis added.]

[44] Section 4.1 of the 2014 PPS itself states:

4.1 This Provincial Policy Statement applies to all decisions in respect of the exercise of any authority that affects a planning matter made on or after April 30, 2014. [Emphasis added.]

[45] There is no doubt that the legislature is entitled to enact such retroactive legislation, especially where it is legislation designed to protect the public interest: R.S. v. R.H. (2000), 2000 22391 (ON SC), 49 O.R. (3d) 451 (Ont. S.C.), at paras. 7 and 12.

[46] The Board referred to and relied on these provisions in both the Act and the PPS in making its decision. There is no ambiguity in either provision. Each clearly requires the Board to apply the PPS in effect at the time of the hearing before it.

[47] These provisions superseded the authority referred to in Kalmoni and Clergy. The Board was correct, in my view, in rejecting the developers’ argument that those authorities applied in light of the provisions set out above.

Negative Impacts on Coastal Wetlands

[48] Section 2.1.5 of the 2014 PPS (to which I will now refer simply as “the PPS”, unless clarification is needed) prohibited development of certain specific coastal wetlands. It provided as follows:

Development and site alteration shall not be permitted in … coastal wetlands in Ecoregions 5E … unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions.

[49] The developers’ property included 48.54 hectares of wetlands. There was no dispute that those wetlands were located in Ecoregion 5E. Therefore, the property could not be developed or altered unless the developers could demonstrate that there would be no negative impacts on the natural features or their ecological functions.

[50] The city’s Official Plan also contained a section that precluded development causing negative impacts. As the Board noted, s.H.3 of the Official Plan stated that if an Environmental Impact Study concludes that the overall impact on the natural heritage feature or area, or ecological function, is negative (i.e. detrimental), the development application shall not be approved (reasons, para. 84). As well, several policies contained in the Official Plan provided that there should be no loss of wetland or its functions. Policy W5 provided that development shall be permitted in wetlands that are not “provincially significant” only where there is no loss of “wetland functions”, among other things. Policy W6 provided that:

The loss of any wetland areas to development shall be made up by the creation and/or dedication of other wetland areas.

[51] At the hearing, the developers called the city’s Director of Planning, Donald McConnell, as a witness. McConnell had prepared a report for city council in which he had recommended that council approve the developers’ application, subject to certain conditions. In his report, McConnell indicated that there would be a net loss of wetland. However, he wrote that this would be mitigated by a “significant” increase in fish habitat, which the evidence indicates would result from the creation of a fish spawning area in “Block 100” (reasons, para. 115).

[52] As mentioned earlier, council denied the developers’ application notwithstanding McConnell’s recommendation. Before the Board, McConnell testified that there were 1,567 hectares of wetlands within the municipal boundaries of the City of Sault Ste. Marie. According to McConnell, there would be a loss of only about 40% of the wetlands on the developers’ property, which would result in a net loss of only about 1% of the total wetlands located within the city boundaries.

[53] The developers argued before the Board that the term “negative impacts” had to be interpreted in light of the recognition in the PPS that some policies could not, or should not, be applied to some areas of the province. Part III of the PPS, entitled “How to Read the Provincial Policy Statement”, sets out the following under the heading “Geographic Scales of Policies”:

The Provincial Policy Statement recognizes the diversity of Ontario and that local context is important. Policies are outcome-oriented, and some policies provide flexibility in their implementation provided that provincial interests are upheld.

While the Provincial Policy Statement is to be read as a whole, not all policies will be applicable to every site, feature or area. The Provincial Policy Statement applies at a range of geographic scales.

Some of the policies refer to specific areas or features and can only be applied where these features or areas exist. Other policies refer to planning objectives that need to be considered in the context of the municipality or planning area as a whole, and are not necessarily applicable to a specific site or development proposal.

[54] In addition to relying on this part of the PPS, the developers also relied on a document entitled “An Introduction to the Provincial Policy Statement 2014: Northern Ontario Draft for Discussion” (the “Northern Ontario Draft”). At page one of that document, it states:

The Provincial Policy Statement 2014 has been revised to better reflect, among other things, the needs and unique circumstances of Northern Ontario, many areas of which are rural.

[55] McConnell testified that, in light of these provisions, in contrast to Southern Ontario which had paved over at least 90% of its wetlands, the loss of less than 1% of the total wetlands in Sault Ste. Marie, balanced against the gain of fisheries habitat, was not a negative result “overall” (reasons, para. 123).

[56] The Board rejected McConnell’s evidence. Instead, it preferred the evidence of Gagnon. Gagnon had performed his own calculation of the amount of wetland that would be lost due to the developers’ plans. He estimated that 37.2 hectares, or 77% of the 48.5 hectares, would be destroyed. I will return to Gagnon’s evidence later in these reasons.

[57] The Board held that the loss of wetlands was contrary to s.2 of the Act, constituted a negative impact under the PPS, and also contravened the Official Plan. With respect to s.2 of the Act, the Board held that the developers’ plans contravened subsections (a) (the protection of ecological systems, including natural areas features and functions) and (p) (the appropriate location of growth and development)(para. 137).

[58] With respect to the Official Plan, the Board held (para. 146):

While the development applications, if approved, would provide for some form of enhanced fisheries habitat due to the refurbishment of the existing Alagash Canal and a fish spawning area, that does not trump the destruction of a significant portion of a coastal wetland that is of interest both to the Province of Ontario, the Government of Canada and through the International Joint Commission, the United States of America.

[59] The developers have not challenged the Board’s finding with respect to the Official Plan. Nor have the developers challenged the Board’s finding with respect to the contravention by the proposed development of s.2(a) and (p) of the Act.

[60] With respect to the Board’s finding under the PPS, the developers argue that the Board failed to turn its mind to the definition of “negative impacts” and substituted its own views on the issue, instead (factum, para. 99). The developers argue that it is necessary to undertake a balancing of the impacts on both the wetlands and the fisheries habitat under the PPS. In order to appreciate the developers’ submission, it is necessary to understand several definitions set out in the PPS.

[61] Section 6 of the PPS sets out definitions for various terms used throughout the document. Two aspects of the definitions of negative impacts are relevant to this application. Under s.6, “negative impacts” is defined as including:

(1) in regard to fish habitat, any permanent alteration to, or destruction of fish habitat, except where, in conjunction with the appropriate authorities, it has been authorized under the Fisheries Act; and

(2) in regard to other natural heritage features and areas, degradation that threatens the health and integrity of the natural features or ecological functions for which an area is identified due to single, multiple or successive development or site alteration activities. [Emphasis added.]

[62] The words “natural heritage features and areas” are defined as meaning:

features and areas, including significant wetlands, coastal wetlands, other coastal wetlands in Ecoregions 5E, 6E and 7E, fish habitat … which are important for their environmental and social values as a legacy of the natural landscapes of an area. [Emphasis added.]

[63] Thus, natural heritage features and areas under the PPS included both the wetlands found in the proposed area of development and fish habitat. The developers argue that this required the Board to engage in an exercise in which it balanced the loss of one with the creation of the other.

[64] The PPA submits that this ground of appeal raises an issue of fact, and not of law. This submission is understandable, given the way in which the developers have framed their arguments regarding the Board’s findings on the issues of negative impacts, limited residential development, and recreational residences. With respect to each of these issues, the developers have argued that the Board improperly failed to accept their expert evidence (factum, paras. 61(6), 84, 86, 128, 134, 147, 151).

[65] If the expert evidence related solely to an issue of fact, I would agree with the PPA and dismiss these grounds of appeal on the basis that they do not raise a question of law. However, the expert evidence in question related to whether the proposed development fit within the prohibitions to development contained in the PPS with respect to the loss of wetland, etc. As such, this issue is one of mixed fact and law. Where questions of law can be extricated from such mixed questions, they are reviewable as questions of law: Housen v. Nikolaisen, 2002 SCC 33, [2002] SCC 33, 2 S.C.R. 235, 2002, at para. 36. In my view, they can in this case. The legal issue is whether the Board properly interpreted the meaning of the term “negative impacts” in the PPS. This issue is a question of law, reviewable on a reasonableness standard: Royalcliff Developments Inc., at para. 11. As with the issue of which PPS to apply, even if the issue of negative impacts was reviewable on a less deferential standard, I would not grant leave. There is no good reason to doubt the correctness of the Board’s decision.

[66] Contrary to the developers’ submission that the Board failed to turn its mind to the definition of negative impacts, it is clear from para. 146 of the Board’s reasons (set out above) that the Board rejected the developers’ argument that the PPS required the Board to balance the gain in fisheries habitat with the loss of wetlands. In my view, the Board’s decision in this regard was correct.

[67] Nothing in the PPS explicitly requires the Board to engage in the balancing exercise advocated by the developers. Nor does the PPS implicitly require such an exercise. Indeed, the opposite is true. Although fish habitat is included along with the particular wetlands in question under the definition of natural heritage features and areas, the PPS sets out two different tests with respect to negative impacts on fish habitat, on one hand, and on other natural heritage features and areas, on the other. This requires the Board to consider each of these natural heritage features and areas separately. The scheme of the PPS is such that development is precluded where either fish habitat or other natural features suffer a negative impact.

[68] The developers rely on the decision of a full panel of this court in Niagara Escarpment Commission. They submit that the court in that case approved of a similar balancing exercise in the decision undertaken by the Joint Board from which the Niagara Escarpment Commission (the “NEC”) appealed. In my view, Niagara Escarpment Commission is readily distinguishable. In that case, the Joint Board found that there was no negative impact caused by the removal of approximately 32.8 hectares of trees from property owned by the applicant, Walker Aggregates Inc., because there was a net gain in woodland. In Niagara Escarpment Commission, the issue was whether the Joint Board could have regard to reforestation outside of the Walker property in determining whether there was a negative impact. The Joint Board held that it could. It held that the “boundaries of natural features are defined by their ecological characteristics and functions [under the PPS], and not by property ownership”. The Joint Board held that the loss of 32.8 hectares of forest on Walker’s property was offset by the reforestation of over 40 hectares of forest elsewhere.

[69] In Niagara Escarpment Commission, the Joint Board was not balancing negative impacts on two different natural heritage features. Instead, it was determining whether there was a negative impact on one.

[70] The developers also rely on the decision of the Board in R and D Investments Inc. v. Scarborough (City), 2010 CarswellOnt 5043, in support of their submission that the proper interpretation of the term “negative impacts” requires a balancing of interests under the PPS. In my view, like the Niagara Escarpment Commission case, the decision in R and D Investments does not stand as authority for the developers’ submission.

[71] In R and D, the issue before the Board was whether a ten-meter buffer zone between the proposed subdivision and the bank of the Rouge River Valley was sufficient, or whether a 30-meter buffer was necessary, instead. The Board held that ten meters was sufficient. The developers cite the following passage from the Board’s decision (para. 28):

The Board notes that the PPS must be read in its entirety and recognizes the need to balance interests. The definition of a negative impact does not say that all impacts are negative impacts; these must actually threaten the health and integrity of the natural feature but in the case at hand, the only natural features are found within the Rouge Valley up to the long term stable top of bank. The Board determines that the 10-metre buffer complies with the intent of the PPS broad-based protective policies in respect of sensitive features like the Rouge System.

[72] It is obvious from this excerpt that the Board found that the health and integrity of the natural features in question were not threatened by a smaller buffer zone. R and D does not stand as authority for the proposition that a negative impact on one natural heritage feature must be balanced against a positive impact on another.

[73] In R and D, the Board accepted the evidence of the applicant’s expert that there would be “no adverse impacts” on the Rouge Valley as a result of the proposed development. That is a completely different case than the one that was before the Board in this case. In this case, the Board member had before him, and made reference to, evidence from at least two sources that any loss of wetlands would adversely impact the health and integrity of the natural features or ecological functions of the areas in question. One of those sources was the developers’ own expert report from Cold Water Consulting Ltd. (the “Cold Water report”). That report, entitled “Pointe Estates Subdivision Scoped Environmental Impact Study for Development in a Wetland”, confirmed that the loss of wetlands would result in a loss of hydrologic function, loss of wetland habitat for fish, birds and mammals, and impact water quality. As the Board pointed out, the report indicated that measures proposed to reduce the impact would only partially mitigate these adverse effects (para. 97).

[74] The second source of information, also referred to by the Board, was the SSMRCA’s report, entitled “Proposed Pointe Estate Subdivision Assessment”. This was the report that resulted in the SSMRCA denying the developers’ application. The report stated (reasons, para. 98):

The presence of the wetland, its functions and the associated habitat and biodiversity features of this area are considered important natural features that in their current state provide the hydrological and ecological functions important to this water shed;

The wetland located on the site of the proposed development is significant to the local area in that it has significant flood attenuation function and water quality improvement benefits for the immediate area and the Great Lakes System;

A wetland cannot be created to replicate this 60+ functions of an existing wetland which all go towards promoting a cleaner environment and healthier community. Regardless of size every wetland has a significant associated value;

[75] Thus, the Board’s decision was justifiable even on a factual basis.

Limited Residential Development

[76] The developers’ lands were “rural lands” within the meaning of both the PPS and the Official Plan. Section 1.1.5.2 of the PPS provides:

On rural lands located in municipalities, permitted uses are:

b) resource-based recreational uses (including recreational dwellings);

c) limited residential development;

[77] The Official Plan also made reference to the term “limited residential development”. By way of a 2009 amendment to the Official Plan, s.2.36, provided that:

Rural land uses include agriculture, forestry, extractive uses such as mining, quarry and aggregate removal, golf courses, riding academies, kennels, cemeteries, approved land fill sites, limited residential development, churches and schools. [Emphasis added.]

[78] No definition of the term “limited residential development” was contained in the PPS. The Northern Ontario Draft stated that the meaning of “limited residential development” might vary between different locations within Ontario, having regard to various factors, including population, land use patterns and density, proximity of settlement areas and the presence of natural features and areas.

[79] The Official Plan, while not formally defining the term “limited residential development”, contained the following paragraph, in s.2.36 (reasons, para. 90):

As it is the intent of this Plan to direct the majority of residential growth within the existing Urban Settlement Area, generally not more than ten (10%) per cent of new residential development should occur in the Rural Area.

The Rural Area is all of the area of the municipality outside the Urban Settlement Area. The Urban Settlement boundary is identified on Land Use Schedule C.

[80] The Official Plan also provided, in Policy RA-11, that further development of lots and areas zoned “Rural Area” would be limited to the creation of two lots.[^3] Thus, in order to proceed with the proposed development, an amendment to the Official Plan would be required.

[81] McConnell had recommended to city council that the Official Plan be amended to permit the development of more than two lots in the Rural Area of the proposed development. In his testimony before the Board, he admitted that a 91-lot subdivision of the type being proposed was a “big” subdivision for the City of Sault Ste. Marie. He stated that demand for lots in the city over the last ten years was usually about 100 lots per year, of which 30 were in the Rural Area. However, he testified that if the lots in question were developed at the average rate of about nine per year, this would be limited residential development in his view when added to the 200 lots already in the area of the development. This would also comply with the requirement in s.2.36 of the Official Plan that not more than 10% of new residential development would occur in the Rural Area.

[82] The Board rejected the opinion of McConnell and the developers’ argument that the proposed development constituted limited residential development. In doing so, the developers argue that the Board erred in failing to consider the uncontested reports and testimony of their experts (factum, para. 61(6)). This argument clearly has no merit.

[83] The Board held, at para. 142:

The Board finds that the establishment of a 91-lot estate residential (“lifestyles”) plan of subdivision does not constitute “limited residential development” as in the ordinary course the City would expect 100 new lots a year, and as Mr. McConnell stated, a 91-lot plan of subdivision is a “big development” in the City.

This excerpt demonstrates that the Board did consider the reports and testimony of the developers’ experts. The Board rejected McConnell’s characterization of the development as limited residential development, which was based on an “uptake” of between seven and twelve lots per year. Assuming, without deciding, that this raises a question of law, that question of law relates to the Board’s interpretation of its own statute. Therefore, should leave be granted, it would be reviewed on the deferential standard of reasonableness. I can see no good reason to doubt the reasonableness of the Board’s approach to the meaning of the term “limited residential development”. Even at the development rate of approximately nine lots per year, the proposed development would account for approximately ten out of 30, or one-third, of all new residential development in the Rural Area of Sault Ste. Marie.

[84] The developers also argue that the Board conflated the meaning of the word “limited” with that of the word “size” (factum, para. 20). They argue that “limited” means that something is “confined” within certain boundaries, not restricted in size. They maintain that the number of residential lots of which the proposed development will consist is irrelevant; what matters is that it will be confined to a certain area. The developers submit that the purpose behind the PPS policy of permitting only limited residential development is the prevention of urban sprawl. They argue that this purpose is served by confining the proposed development to an area which already contains numerous residences.

[85] I am unable to accept the developers’ argument. According to the submissions of the developers, there would be no limit to the amount of development that could take place in rural areas, as long as that development was confined to “pockets” in various places outside the Urban Settlement area. This would be contrary to s. 2(p) of the Act and to those portions of the Official Plan set out above.

[86] In my view, the developers’ argument with respect to the meaning of the term “limited residential development” is unreasonable. Even if I am wrong in that view, it is my further opinion that the Board’s interpretation of that term fits within a range of acceptable outcomes. There is, therefore, no good reason to doubt the reasonableness of its finding.

Recreational Dwelling

[87] As set out above, in addition to permitting limited residential development on rural lands, s.1.1.5.2 of the PPS permits “resource-based recreational uses (including recreational dwellings)”. Like the term “limited residential development”, the term “recreational dwelling” is also not defined in the PPS. However, the PPS does define the word “recreation” in s.6. That term is defined as meaning:

… leisure time activity undertaken in built up or natural settings for purposes of physical activity, health benefits, sport participation and skill development, personal enjoyment, positive social interaction and the achievement of human potential.

[88] Relying on the foregoing definition and on jurisprudence defining the term “dwelling”, the developers argue that the term “recreational dwellings” refers to dwellings which are used for year-round recreational use. The developers contend that the Board erred in ignoring the evidence of their expert, Bill Wierzbicki, a land use planner, that the proposed development consisted entirely of recreational dwellings. Wierzbicki testified that, in his opinion, the proposed development would be permitted under the PPS on the basis that it was a development for the boating community (transcript, v. 5, p. 842).

[89] It is true that the Board did not mention the substance of Wierzbicki’s evidence about recreational dwellings. However, that is likely because the Board found that the proposed development contravened the Act, the PPS, and the Official Plan on the basis that it resulted in negative impacts and was not limited residential development. The Board was not required to go on to consider whether, if the proposed development did not contravene these provisions and policies, it might have been permissible as recreational dwellings.

Having Regard to the Decisions of Council and the SSMRCA and the Information and Materials before Them

[90] Section 2.1 of the Act requires that, when making a decision under the Act that relates to a planning matter, the Board shall have regard to:

(1) any decision that is made under the Act by a municipal council or by an approval authority and relates to the same planning matter; and

(2) any supporting information and material that the municipal council or approval authority considered in making the decision described above.

[91] In order to comply with this section, the Board must, at a minimum, scrutinize and carefully consider the decisions of council and, in this case, the SSMRCA and the information and material that was before each of these decision-makers: Minto Communities Inc. v. Ottawa (City), 2009 65802 (ON SCDC), [2009] O.J. No. 4913 (Div. Ct.), at para. 33.

[92] The developers contend that the Board failed to do this with respect to the SSMRCA’s decision ultimately to approve the developers’ application without conditions. Assuming that a failure of the Board to comply with s. 2.1 of the Act constitutes an error of law, this issue still fails to meet the prerequisites for leave to be granted.

[93] First, I do not agree that the Board failed to comply with s. 2.1. The Board did, in fact, make extensive reference to the materials and information before the SSMRCA, and city council, for that matter. With respect to council’s decision to deny the developers’ application, the Board specifically stated in its reasons (para. 136) that it considered the information and the materials that were before council. There is nothing in the reasons to cast doubt on the truth of this statement.

[94] With respect to the SSMRCA, the Board dealt at length with the Cold Water report and the report prepared by SSMRCA staff. While the Board did not refer in its reasons to the hydrogeological study obtained by the developers after they appealed the SSMRCA’s decision to turn down their application, the developers have not argued that this study would have had an effect on the issue of negative impacts. Moreover, a decision-maker is not obliged to refer to every piece of evidence it considered in making its decision. The mere failure to mention a piece of evidence is not sufficient proof that a decision-maker failed to consider it. Where a party contends that a decision-maker failed to consider a particular piece of evidence, there will be no error of law committed unless the reasons demonstrate that this is the case: R. v. Morin, 1992 40 (SCC), [1992] 3 S.C.R. 286, at para. 20. The reasons of the Board do not demonstrate that this is so.

[95] The Board made specific, and lengthy, reference to McConnell’s evidence, as I have mentioned. As I have also mentioned, in addition, it referred to the Cold Water report. The Board, correctly as I have indicated, held that the loss of wetlands was not offset by the creation of fish habitat. It also held, again correctly in my view, that the creation of a 91-lot subdivision in a rural area of a city that ordinarily creates only about 30 such lots in a year was not limited residential development. Given these conclusions, it was not necessary for the Board to refer to other expert evidence, such of that of Wierzbicki, much of which duplicated the evidence of McConnell on these points, and the hydrogeological study.

[96] The developers also submit that the Board improperly ignored the decision of the SSMRCA to permit the development. Once again, this submission is simply incorrect. The Board set out the factual background in its reasons, which included the SSMRCA’s ultimate decision to permit the development. The Board also considered the SSMRCA staff report. However, the Board went on to consider the evidence it had before it, which included evidence that there would be a loss of wetland. The Board simply reached a different conclusion than that reached by the SSMRCA. It was entitled to do so. The Board’s decision was made in the context of different governing legislation, involving different considerations than those of concern to the SSMRCA, despite some overlap between them. There is no good reason to doubt the reasonableness of the Board’s decision.

[97] Even if I am wrong in my view of the reasonableness of the Board’s decision with respect to this issue, I am of the further view that it is not an issue of sufficient importance to merit appellate review. Its importance does not extend beyond its importance to the parties.

The Evidence of Peter Gagnon

[98] As I indicated earlier in these reasons, there was a discrepancy in the evidence before the Board with respect to the amount of wetlands that would be lost if the development was allowed. McConnell testified that there would be a loss of only about 40% of the existing wetland in the area of the development, representing the loss of only slightly more than 1% of the total wetlands within the municipal boundaries of Sault Ste. Marie. Wierzbicki testified similarly.

[99] Gagnon, however, testified that the development would result in the loss of approximately 77% of the wetland found in the area of the proposed development. He arrived at that conclusion by creating a transparency of the proposed development and placing that over top of a map showing the wetlands. Gagnon, a former forester, then used a dot/grid method of measurement and concluded that 37.2 of 48.5 hectares of wetland would be destroyed.

[100] In addition to arguing that Gagnon’s evidence was given in breach of the settlement agreement between the developers and the PPA, which I will deal with later, the developers submit that the Board erred in permitting Gagnon to give this evidence for three reasons:

(1) the Board breached procedural fairness because Gagnon’s evidence was actually expert evidence and Gagnon never signed an acknowledgment of expert duty, never participated in a meeting of like experts, and never submitted an expert report (factum, para. 146);

(2) the Board erred in preferring the testimony of Gagnon over that of McConnell and Wierzbicki; and

(3) the Board failed to provide reasons for doing so.

[101] The second and third arguments listed above are easily disposed of. First, the Board did provide reasons for rejecting the evidence of the developers’ experts. At para. 133 of its reasons, the Board wrote:

In reaching this decision the Board has preferred the evidence of the respondents, and particularly that of Peter Gagnon. Notwithstanding all the resources available to the Applicants and the City Planning Department, Mr. Gagnon did what no land use planner called by the Applicants did: he took the City’s Drainage and Elevation Overview (Exhibit 51A) depicting the extent of the wetlands on the Subject Lands and created a transparent overlay of the draft plan of subdivision. With this overlay he alone was able to calculate the loss of wetlands from the proposed development.

[102] The developers called John McDonald, an engineer, to give evidence in reply to that of Gagnon concerning the amount of wetlands that would be lost. The Board rejected that evidence, setting out its reasons for doing so in paras. 140 and 141 of its reasons:

[140] While the Applicants attempted to discount the loss of wetland by indicating only some portions of the wetlands would be subject to fill, that would appear to the Board to be inconsistent with the other provisions of the reports of the Applicants where it is noted that the top of the canal bank will be set 1.5 metres above the 100-year return period water level of 184.4 metres … which if contrasted to [the draft plan of subdivision] the topographic notations show that none of the existing Subject Lands currently exceed 185.9 metres.

[141] Counsel for the Applicants called a civil engineer in reply evidence: the gist of which was that the loss of wetland as proposed by [Gagnon] was overstated and that in his opinion the loss of wetland would “only” be between 10 to 20 ha, and not the 37.2 ha as calculated by Mr. Gagnon. The Board ascribes little weight to this evidence as in cross-examination by Mr. Oswald the witness admitted that he did not take into account the fact that the top of the canal bank would be set 1.5 metres above the 100-year return period water level of 184.4 metres.

[103] Second, if it was an error of any kind to prefer the evidence of Gagnon, it was not an error of law.

[104] The developers’ argument that the Board breached procedural fairness in allowing Gagnon’s testimony about the amount of wetland loss is more troubling than its other arguments. In my view, the Board did commit an error in failing to recognize that Gagnon’s evidence was not lay witness evidence and was, instead, expert evidence.

[105] Evidence is expert evidence whenever it provides the trier of fact with a “ready-made inference from proven facts” when the “technical or scientific nature of the subject matter is likely to be beyond the fact-finder’s knowledge or experience” (: Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3rd ed. (Markham, Ont.: LexisNexis Canada, 2009) at para. 12:34).

[106] In my view, Gagnon’s testimony was opinion evidence, just the same way that the evidence of McConnell and Wierzbicki about how much wetland would be lost was opinion evidence. While the method employed by Gagnon to measure the loss might have seemed simpler and more comprehensible to the Board, it was nonetheless a method that went beyond what lay people ordinarily themselves employ. Gagnon wasn’t using a tape measure, for example, and relating what number he saw when he looked at the tape. By the Board’s own admission, Gagnon was using a method of measurement employed by expert foresters. Using that methodology, Gagnon provided his opinion as to what the loss of wetland would be. For these reasons, Gagnon’s evidence ought to have been subjected not only to the procedural requirements referred to by the developers, such as providing a report, an acknowledgment of duty, etc., but the Board ought to have explicitly engaged in the “gate-keeping” function required by virtue of the decision of the Supreme Court of Canada in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, and more recently in White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182, 2015 SCC 23. Indeed, the Board should have engaged in the very same kind of gate-keeping function that caused it to reject the expert evidence of Anthony Usher, to which I will refer shortly.

[107] In my view, the Board’s failure to recognize Gagnon’s evidence as expert evidence and to engage in the required gate-keeping function was an error of law. However, it was not an error of law the importance of which extends beyond the obvious importance to the parties, so as to require appellate consideration.

The Evidence of Anthony Usher

[108] During the hearing, the PPA attempted to call Anthony Usher, and to have him qualified as an expert in land use planning. The developers challenged Usher’s qualification as an expert. The Board reserved its decision and heard Usher’s evidence in full. In its reasons dismissing the developers’ appeal, the Board agreed with the developers that Usher ought not to give expert evidence because he had become an advocate on behalf of the PPA. Instead, the Board decided that it would “assign the appropriate weight to Mr. Usher’s evidence, as a fact witness and not as an expert” (reasons, para. 73).

[109] The developers argue that the Board erred in doing anything with Usher’s evidence other than rejecting it outright. This argument has merit. Subsequent to the decision of the Board in this case, the Supreme Court of Canada released its decision in White Burgess. In White Burgess, the Supreme Court held that the evidence of an expert witness who is unable or unwilling to fulfill his duty to the court to provide fair, objective and non-partisan opinion evidence should be excluded altogether (para. 46). As I read the Board’s reasons, it concluded that Usher had failed to meet the duty he owed to the Board as an expert. Therefore, his evidence should have been excluded.

[110] However, although the issue of whether Usher’s evidence should have been excluded gives rise to a question of law, it is not one that transcends its importance to the parties. In fact, its importance to the parties seems to be minimal, given that the Board appears not to have relied upon Usher’s evidence. It is not mentioned in any part of the Board’s reasons dealing with any of the substantive issues.

Breaching the Minutes of Settlement

[111] The developers contend that the Board permitted an abuse of its own process by admitting Gagnon’s evidence about the loss of coastal wetlands. They maintain that Gagnon’s evidence breached the minutes of settlement by advancing the position that the SSMRCA’s approval was “illegal or invalid or contrary” to the Conservation Authorities Act and O. Reg. 176/06. The developers argue that Gagnon’s evidence constituted an indirect attack on the SSMRCA’s decision to approve the developers’ application because it suggested that the SSMRCA’s decision was in breach of the Conservation Authorities Act and regulations, which prohibited development in wetlands that would affect the “conservation of land”.

[112] I do not accept the developers’ argument that Gagnon’s evidence constituted a breach of the minutes of settlement. In my view, because they restricted the PPA’s right to challenge the merits of the developers’ application, the minutes of settlement must be strictly construed. I agree with the submissions made on behalf of the PPA that the minutes dealt specifically with the SSMRCA’s approval under the Conservation Authorities Act and its regulations. The minutes did not restrict the PPA from advancing issues relating to the Planning Act and the PPS.

[113] The developers’ argument sounds alarmingly like an argument that the SSMRCA had somehow “occupied the field” regarding the loss of wetlands, preventing Gagnon from saying anything about it before the Board. On the contrary, while the Board was obliged to consider the SSMRCA’s decision, it was also obliged to arrive at its own conclusion regarding possible negative impacts under the Act. Gagnon’s evidence about the extent of the loss of wetlands was relevant to that issue. The fact that the loss of wetlands was also a consideration relevant to the SSMRCA’s decision does not mean that Gagnon was adopting a position that the SSMRCA’s decision was illegal. His evidence related to Planning Act matters, not to the Conservation Authorities Act or its regulations.

Consulting an Unknown Third Party

[114] The developers raise as a potential ground of appeal the possibility that the Board consulted an unknown third party in the course of making its decision to dismiss their appeal. They raise this issue as a result of the following excerpt from the Board’s reasons, at para. 131:

After reviewing the evidence and considering the submissions of counsel, the Board has undertaken an independent assessment of all of the oral evidence, and an independent assessment of all of the studies, reports and other written and electronic documents that form the record of the hearing. [Emphasis added.]

[115] The developers submit that, based on this statement, “it appears that a third-party conducted this ‘independent assessment’ and assisted the Board with its decision” (factum, para. 180).

[116] If there was good reason to believe that this had occurred, it would have gone to the very heart of the Board’s decision and would have resulted in leave being granted with respect to this issue. However, there is no good reason to believe that it did.

[117] I do not interpret the Board Member’s statement in the way suggested by the developers. In my view, the Board was merely stating that, contrary to the opinions expressed in favour of or against the proposed development, the Board had considered the matter from an “independent” point of view. This is clear from the context in which the foregoing comment was made. The excerpt above is from a paragraph that begins:

As noted above, during the course of this hearing, the Board heard evidence from over 20 witnesses: some lay and some expert.

[118] The excerpt is followed by these paragraphs:

[132] The Board has juxtaposed all that evidence against s. 2 of the Planning Act, the 2014 Provincial Policy Statement, the City’s Official Plan, the City’s Zoning By-law, and s. 51(24) of the Planning Act.

[133] Having done so, the Board has found that the development applications do not have the appropriate regard for s. 2 of the Planning Act, are not consistent with the Provincial Policy Statement, do not conform to the Official Plan, and do not represent good planning. In reaching this decision the Board has preferred the evidence of the respondents, and particularly that of Peter Gagnon…

[119] Put in context, it is clear that the Board member was merely expressing the process by which he, and he alone, had arrived at his conclusion.

Procedural fairness

[120] The developers raise two issues with respect to procedural fairness. First, they argue that the Board erred in its conduct of the hearing. Second, the developers maintain that the Board demonstrated bias by calling its own witness regarding a “non-issue” and by intervening on numerous occasions during the examination of witnesses called by other parties.

[121] There is some controversy in the case law with respect to the standard of review regarding questions relating to breaches of natural justice or procedural fairness. In cases from this court, such as Manpel v. Greenwin Property Management (2005), 200 O.A.C. 301, 2005 25636, and Forestall v. Toronto Policy Services Board (2007), 2007 31785 (ON SCDC), 228 O.A.C. 202, it has been held that there is no standard of review for breaches of procedural fairness and natural justice (Manpel, at para. 16; Forestall, at para. 38). These cases are based on the Ontario Court of Appeal decision in London (City) v. Ayerswood Development Corp., [2002] O.J. No. 4895. However, in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, Binnie J., writing on behalf of the majority, held that Dunsmuir required that procedural issues are to be determined on a correctness standard of review (para. 43, p. 371).

[122] Fortunately, I need do no more than point out the conflicting decisions because I am not persuaded that any procedural fairness or breach of natural justice occurred.

[123] Turning to the first issue raised, the developers argue that the Board improperly refused to allow them to call two reply witnesses, refused to allow an adjournment before final submissions, and limited those final submissions to two and one-half hours. I need not cite any authority in support of the proposition that the Board has the power to control its own process. The Board’s authority to do so is highly discretionary.

[124] The alleged errors all occurred on December 4, 2014, a Thursday. The transcript of the proceedings reveals that, if the hearing (including final submissions) did not conclude the next day, the Board would not be able to resume the hearing as a result of other commitments until sometime in 2015. For that reason, the Board insisted that the developers call their reply witnesses that day. The Board did not refuse to allow the developers to call their witnesses. The developers’ counsel, however, called only one such witness and opted to call no further reply evidence in order to use the remaining time that evening to prepare to deliver final submissions the following morning.

[125] With respect to the Board’s decision to limit final submissions to two and one-half hours, I would point out that the developers were also permitted to file 20 pages of written submissions (factum, para. 52) and that all of the parties were similarly restricted.

[126] In the circumstances, I can see no procedural unfairness. The developers have not argued that the reply evidence or longer oral submissions could possibly have affected the Board’s decision. No application to introduce fresh evidence on the leave application has been made by the developers. Even if there was unfairness, this issue does not merit appellate intervention, as its importance is limited to the parties.

[127] Turning to the second issue raised, the developers contend that the Board demonstrated bias in two general ways. First, they submit that the Board demonstrated bias by calling Marjorie Hall, a district planner for the Ministry of Natural Resources, as a witness. The developers suggest that, by doing so, the Board improperly sought to question the MNR’s designation of the wetlands in question as not provincially significant, a move which the developers allege benefitted the other parties.

[128] I do not accept the argument that the Board called Hall for an improper purpose. Nor do I accept the argument that the Board demonstrated bias in doing so. The excerpt of Hall’s evidence appended to the developers’ factum makes it clear that the Board was not looking to question the MNR’s designation, but was, instead, looking for information that was relevant to the developers’ argument that there would be no negative impacts by the loss of coastal wetlands. The MNR in general, and Hall in particular, had been asked to comment on the developers’ application in 2007. At that time, the governing PPS was the 2005 version. Member Taylor specifically questioned Hall on changes between the 2005 and 2014 PPS and related documents relevant to the issue of negative impacts. These differences were made relevant to the Board’s task by virtue of the Board’s ruling that the most recent PPS applied.

[129] I also reject the developers’ argument that the Board member showed bias in intervening as he did during the evidence of witnesses called by the parties to the hearing. The excerpts appended to the developers’ factum all demonstrate that the Board member’s questions were put for the purpose of clarifying the witness’ evidence, which is perfectly proper: Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, at para. 233. It was also to be expected. This was not a hearing dealing with a simple historical event, like a car crash. It was a hearing dealing with complex issues such as the creation of fish habitat and the destruction of coastal wetlands. There were many documents in evidence. There were expert opinions. There were policy statements to be interpreted. And there were numerous other decision-makers who had been involved in the process before the Board became involved. In light of all of this, it is not surprising, therefore, that the Board member would require clarification and there was nothing improper in the questions he asked for that purpose, in my view.

[130] The test for bias is well-established:

[W]hat would an informed person, viewing the matter realistically, and practically – and having thought the matter through – conclude [?]. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly[?]: Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003 SCC 45, at para. 60.

[131] In my opinion, none of the improprieties alleged by the developers, even when taken together, meet this test.

Reasons

[132] Like the arguments relating to procedural fairness, the developers raise two issues relating to the Board’s reasons.

[133] First, they submit that the Board failed to provide reasons for ignoring uncontradicted evidence of their experts (factum, para. 173). This is not correct. The Board did not ignore the developers’ evidence. The Board made extensive reference to the evidence of McConnell and Wierzbicki on the issues of negative impacts and limited residential developments. It also provided reasons for rejecting that evidence. With respect to the issue of negative impacts, as I have explained, the Board rejected an interpretation of that term which would require it to balance the loss of wetlands against the creation of fish habitat and rejected the developers’ evidence that only 40% of the wetlands would be destroyed. With respect to the issue of limited residential development, the Board rejected the evidence of the developers’ experts that a 91-lot subdivision would be limited residential development, even if an average of only 9 lots per year were developed in the rural area.

[134] In the case of both negative impacts and limited residential developments, the Board provided reasons for its conclusions.

[135] The developers also contend that the Board’s reasons were deficient in another way. They argue that the Board failed to provide guidance with respect to the extent to which the loss of wetlands constitutes a negative impact and the extent to which development must be curtailed to constitute limited residential development.

[136] I agree with the submission made by the PPA that the Board was not required to provide the guidance sought by the developers in any way other than the way it did. The Board was required to decide only whether, on the facts before it, there was a negative impact on the coastal wetlands where a significant portion of those wetlands would be lost and whether the creation of a 91-lot subdivision was limited residential development in a city that receives requests to develop only about 100 lots per year. The Board did that and, in my view, provided adequate reasons for doing so.

[137] As my own reasons in this leave application demonstrate, the reasons of the Board were sufficient to permit appellate review.

CONCLUSION

[138] I have no doubt that the developers’ plans for the Pointe Estates subdivision were the culmination of a long-standing dream. There is also no doubt that there were significant financial interests at stake. The decisions of the SSMRCA, of Sault Ste. Marie city council, and then of the Board must have been difficult for the developers to accept. The same is likely true of my decision.

[139] Be that as it may, none of the many issues raised in this application meet the onerous test for granting leave to appeal.

[140] Leave to appeal is, therefore, denied.

[141] I would encourage the parties to agree on the issue of costs. However, if they are unable to agree, written submissions with respect to that issue may be made as follows:

(a) the respondents may make submissions, limited to five typewritten pages, exclusive of attachments, within 20 days of the date of the release of these reasons;

(b) the applicants may make submissions, similarly limited, within 20 days of the receipt of the respondents’ written submissions; and

(c) the respondents may make any necessary reply, similarly limited in length, within 10 days of the date of receipt of the applicants’ written submissions.

Ellies J.

Released: November 28, 2016

CITATION: Avery v. Pointes Protection Association, 2016 ONSC 6463

DIVISIONAL COURT FILE NO.: DC

DATE: 2016/11/28

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

ELLIES J.

JEFF AVERY, PATRICIA AVERY, and 1704604 ONTARIO LTD.

Applicants (Appellants in Appeal)

– and –

POINTES PROTECTION ASSOCIATION, THE CORPORATION OF THE CITY OF SAULT STE. MARIE, and KLAAS OSWALD

Respondents

REASONS FOR DECISION ON APPLICATION FOR LEAVE TO APPEAL

Released: November 28, 2016

[^1]: This number is taken from the appellant’s factum, at para. 6. The Board’s reasons refer to approximately 200 residences located in the area (para. 4). This may include properties not on the shoreline.

[^2]: This date is taken from the Board’s decision, at para. 9. The appellant’s factum indicates that the year was 2006: paras. 15 and 127. Despite this discrepancy in the date that the developers first approached the city, there does not appear to be any discrepancy as to the date upon which the developers’ application was filed, namely 2007 (reasons, para. 31).

[^3]: It is unclear over what time frame the creation of these lots is permitted.