CITATION: City of Toronto v. Avenue Road Eglinton Community Association, 2019 ONSC 146
DIVISIONAL COURT FILE NO.: 692/17
DATE: 20190110
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J. Marrocco, Swinton and Sachs JJ.
BETWEEN:
City of Toronto
Appellant
– and –
Avenue Road Eglinton Community Association (ARECA); Building Industry & Land Development Association (BILD); Confederation of Resident & Ratepayer Ass. (CORRA); Deltera Inc.; Lakeshore Planning Council Corp.; Riocan Real Estate Investment Trust Inc.; Riocan Holdings Inc.; Riocan Management Inc.; Swansea Area Ratepayers Group; Terracap Management Inc.; and Teddington Park Residents Association (TPRA)
Respondents
Brendan O’Callaghan, Kirsten Franz and Matthew Schuman, for the Appellant
Ugo Popadic, for the Respondent, the Minister of Municipal Affairs and Housing
Chris G. Paliare and Richard P. Stephenson, for the Respondent BILD
Patrick Duffy, for the Respondents Deltera Inc. and Riocan Real Estate Investment Trust Inc.
Stan Floras, for the Ontario Municipal Board (now known as the Local Planning Appeal Tribunal)
HEARD at Toronto: December 11, 2018
H. Sachs J.
Overview
[1] On July 11, 2014, the Appellant, the City of Toronto (the “City”), pursuant to its delegated authority, adopted a by-law amending its Official Plan by providing for the implementation of a development permit system (“OPA 258”). This is a first step for implementing the system. The second step is the passage of a Development Permit System by-law (“DPS by-law”).
[2] The named Respondents appealed OPA 258 to the Ontario Municipal Board (now known as the Local Planning Appeal Tribunal) (the “Board”). The Board held a number of prehearing conferences and set dates for the hearing of the appeals over a 10-day period. Prior to that hearing, several Respondents brought a joint motion to adjourn the appeals based on evidence that they filed that it would not be reasonable or practical to assess the merits of OPA 258 without a DPS by-law in place that set out how the system is intended to work in practice.
[3] On the basis of this evidence, and its findings that the Respondents would be prejudiced if the adjournment was not granted and that the City would suffer no prejudice if the adjournment was granted, the Board granted the request for an adjournment. As a result, the Board ordered that the appeals were adjourned until the City enacted a DPS by-law in final form and the appeal period for the by-law had expired. The Board also ordered that if the City did not pass a DPS by-law within a year, the City was to report to the Board on its efforts to do so.
[4] The City appeals this decision on the basis that the Board’s order denies it its statutory right of appeal with respect to the Official Plan amendment, imposes a prerequisite on the City to pass a by-law that the Board had no jurisdiction to impose, and is inconsistent with the legislative scheme that enables the City to implement the development permit system. The City is supported in its appeal by the Minister of Municipal Affairs and Housing (the “Ministry”).
[5] For the reasons that follow I would dismiss the appeal and uphold the decision of the Board. Fundamentally, the decision does not disclose an error in law or jurisdiction. To the contrary, it was a reasonable exercise of the Board’s core discretionary powers to control its own processes and procedure.
Background
The Development Permit System
[6] Traditionally land use control under the Planning Act, R.S.O. 1990, c. P.13 (the “Act”) has consisted of four layers: the municipal official plan (which is generally a broad statement of land use policy); zoning by-laws (which implement the policies set out in the official plan); site plan control (how a specific development fits on a specific parcel of land); and minor variances (a process whereby an applicant is entitled to seek minor variances from the strict application of the zoning by-law).
[7] A development permit system collapses the last three powers that a municipality has for regulating land use (zoning by-laws, site plan control and minor variances) into one single process.
[8] As put by the Board: “[a]s an alternative to the different segmented application and planning processes, the Development Permit System is intended to be a faster, more efficient and responsive ‘one-stop’ whole-approval process for zoning amendments, site plan approval processes, and minor variance applications.”
[9] The system is also intended to provide greater land use predictability in the development permit area. It does so by requiring a DPS by-law to, among other things, set out and define the permitted uses of land, set out a list of minimum and maximum standards for development, and outline conditions that the municipal council may impose on the development permit application. There is also a list of voluntary requirements that a council may include in any DPS by-law.
The Statutory Authority for the Development Permit System
[10] Section 70.2 of the Act provides authority for the Lieutenant Governor in Council to enact a regulation delegating the power to municipalities to establish a development permit system upon such conditions as are set out in the regulation. Section 70.2(1) reads as follows:
The Lieutenant Governor in Council may, by regulation,
(a) Establish a development permit system that local municipalities may by by-law adopt to control land use development in the municipality; or
(b) Delegate to local municipalities the power to establish a development permit system upon such conditions as may be set out in the regulation.
[11] Ontario Regulation 608/06 (the “Regulation”) was adopted pursuant to this section. Under s. 2 of the Regulation the council of a municipality: “may by by-law establish a development permit system within the municipality for any area or areas set out in the by-law.” Section 3 of the Regulation states that: “[c]ouncil shall not pass a development permit by-law for any area in the municipality unless, before the passing of the by-law, the official plan in effect for the municipality” does a number of things, including: “identifies the area as a proposed development permit area” and “contains a statement of the municipality’s goals, objectives and policies in proposing a development permit system for the area.”
[12] Thus, pursuant to the Regulation, a municipality cannot pass a DPS by-law until it has also adopted an official plan that deals with the development permit system. There is no requirement in the Regulation that a municipality enact a DPS by-law at the same time as it adopts an official plan amendment.
[13] The Regulation was in effect when the City enacted OPA 258. It has since been withdrawn and replaced by O. Reg. 173/16. However, as the Board noted in its decision, for the purposes of this proceeding there is no significant or relevant distinction between the two regulations.
The City Passes OPA 258
[14] According to the handbook provided by the Ministry to municipalities with respect to the implementation of the development permit system, the purpose of the official plan amendment is to create a community vision. As put in the ‘Development Permit System: A Handbook for Municipal Implementation”:
- Creating a Vision: Prior to using the DPS, a municipal council must amend its OP [Official Plan] in accordance with the prescribed requirements to identify the DPS area and provide information on how the system is to be used. In drafting an OPA to establish a DPS, a municipality is proposing a vision for how the community will develop within the proposed DPS area. It is at this stage that municipalities must state the goals, objectives and policies in proposing a DPS and in doing so, municipalities are establishing the purpose of the DPS and identifying how it is to be used to achieve the community vision. Municipalities should consider the proposed DPS area including its size, character and features (e.g. natural heritage features, development constraints and opportunities, heritage buildings, etc.) as well as the intended scope of the DPS.
[15] On July 11, 2014 the City passed OPA 258. OPA 258 begins with a statement that while “the entire City of Toronto is identified by this policy as a development permit area”, the development permit system will be implemented on an area by area basis through individual by-laws. As put in OPA 258, this will ensure that the system addresses “local planning issues and reflects local character and distinctiveness through the creation of a comprehensive vision for a particular area.”
[16] Under the section entitled “Policies” the following is set out:
- The goals of the Development Permit System are to:
a) implement the vision, principles and policies of the Official Plan;
b) engage the community in the creation of the planned vision subject areas;
c) establish a comprehensive planning framework that facilitates and shapes development appropriate for subject areas; and
d) secure predictable outcomes by ensuring that all approved development is consistent with the planned vision and the comprehensive planning framework for the subject areas.
The objective of the Development Permit System is to provide for an alternative land use regulatory framework that implements the Official Plan and achieves the Goals stated above.
The entire City of Toronto is identified by this policy as a development permit area. However, development permit by-laws will only be prepared for those areas within the City identified by Council, following at least one community meeting in the affected area, in addition to any requirements under the Planning Act.
[17] OPA 258 then goes on to largely set out what will and may be set out in the development permit by-laws. This includes: “permissible uses and development standards with specified minimum or maximum limits” and “criteria for determining whether a proposed use or development of land may be permitted”. These criteria may evaluate such things as the “built environment”, the “human environment”, the “natural environment” and “Toronto’s economic health, competitiveness and cultural capital.” How the public is involved in applications for development will be specified in the development permit by-laws. Development permit by-laws may also require applicants to register agreements on title, provide financial security to ensure the satisfaction of any condition imposed on the permit, and may include a requirement for the provision of a community benefit. OPA 258 sets out in separate schedules the requirements for a completed application for a development permit and the requirements for an application to amend a development permit by-law.
The Respondents Appeal OPA 258
[18] In August of 2014, the Respondents, who are both landowners and ratepayers, filed appeals of OPA 258 with the Board pursuant to s. 17(36) of the Act. In total 13 appeals were filed with the Board.
[19] The Board’s function on an appeal under s. 17(36) is to conduct a de novo hearing to determine if an official plan amendment is consistent with the Provincial Policy Statement (Act, s. 2.1(5)(a)), conforms to any applicable provincial plans (Act, s. 2.1(5)(b)) and represents good planning (Re Sault Ste. Marie (City),[1972] OJ No. 1692 (C.A.) at para. 9; London (City) v. Ayerswood Development Corp., [2002] OJ No. 400 (Div. Ct.) at paras. 24-26; Train v. Weir, 2012 ONSC 5157 (Div. Ct.) at para. 57; and Whiteley v. Guelph, 2017 CarswellOnt. 11120 (ON OMB) at para. 45).
[20] Commencing in September of 2015 the Board began holding prehearing conferences regarding the conduct of the appeals. At those prehearing conferences the Ministry and the Ratepayers were added as parties to the proceedings, and an “Issues List” was set out. That list identified the issues that each party sought to have the Board determine. On the City of Toronto’s list one of the identified issues was “Is OPA 258 premature in the absence of a Development Permit System by-law?” Another was whether OPA 258 constituted good planning. Ten days of hearing were set aside for the hearing of the appeals, which were scheduled to commence in January of 2018.
[21] On August 22, 2016, a number of Respondent Landowners brought a joint motion to adjourn the hearing of the appeals. In support of their motion they filed an affidavit from Peter Smith, a consulting land use planner. The Ministry objected to the admission of Mr. Smith’s evidence on the basis of a perceived conflict. The Ministry later withdrew from its position respecting Mr. Smith’s evidence, and the Board set two days aside to hear the Landowners’ joint motion to adjourn in July of 2017.
[22] On November 2, 2017, the Board issued its decision on the adjournment motion.
The Board’s Decision
[23] The Board accepted the submission of the Landowners and the expert opinion of Mr. Smith, stating that: “because the City’s adoption of a new Development Permit System is on a city-wide basis under OPA 258, it will represent such a fundamental change to planning and development in the largest urban area of the Province, ‘it is imperative to get it right.’ Once implemented all existing zoning by-laws and related variances in the City will have been effectively repealed and replaced, and with them, the land use regulation system that has been in place for over 60 years.”
[24] The Board noted that since the amendments to the Act were passed, only four smaller municipalities out of 444 municipalities in Ontario had adopted a Development Permit System. The Board accepted the evidence of Peter Smith that all four had passed their DPS by-law more or less concurrently with their OPA.
[25] The Board found that while the OPA was a prerequisite planning instrument to create a development permit system, it was the DPS by-law that practically and substantively implements the way in which the amended official plan will enact the new development permit system.
[26] The Board accepted the evidence of Peter Smith, whom it found had a “unique vantage point,” having been consulted by the Ministry regarding the structure and content of the Development Permit System at its inception. Mr. Smith’s opinion was that, without a DPS by-law in place, it was not possible to see how the Development Permit System would work or to reasonably or practically assess it.
[27] The Board remarked that neither the City nor the Ministry had provided any planning evidence to challenge Mr. Smith’s evidence on this point. The Board therefore found that there was “compelling interrelationship and connection between the DPB and OPA that practically demands the DPB to be reviewed and assessed concurrently with the appellate review and assessment of OPA 258 undertaken by the Board.”
[28] The Board also accepted Mr. Smith’s opinion that the Landowners, Ratepayers and the public at large would be prejudiced if a policy framework for an untested development permit system were to be “rolled out giving the City the authority to enact multiple by-laws in advance of demonstrating that the system works.” The Board also noted that if the amendment is passed, any revisiting of the OPA would be prohibited for 5 years.
[29] The Board found that the City had failed to provide any evidence of prejudice if the adjournment request was granted. It also found that the City had failed to provide any evidence to support a submission that it was necessary for the appeals relating to OPA 258 to be adjudicated without the benefit of a DPB, or alternatively, why it is not reasonable to have a DPB in place before the appeals are heard.
[30] The Board found that in order to properly assess the planning merits of OPA 258 it had to have before it a DPS by-law that the City had brought into force. Without this by-law it would be premature for it to adjudicate the issues raised by the appeal.
[31] The Board then considered whether it had jurisdiction to grant the adjournment requested. The Board found that it had jurisdiction to grant the relief sought based upon its powers and jurisdiction “to control its own processes to achieve a hearing that is fair, efficient, adequate and just.”
[32] The Board granted the request and adjourned the hearing without a fixed date. The Board ordered that the hearing would proceed once the City had enacted in final form a DPS by-law and the appeal period relating to the by-law under the Act had passed. The Board also required the City to report back to it if it had not enacted such a by-law within 12 months of its decision.
Jurisdiction and Standard of Review
[33] Pursuant to s. 96 (1) of the Ontario Municipal Board Act, R.S.O. 1990 c. O.28 (“OMBA”), an appeal lies to the Divisional Court from an order of the Board on a question of law, with leave.
[34] The parties agree that the standard of review applicable to this appeal is reasonableness.
Issues
[35] Leave to appeal the Board’s decision was granted on the following questions of law:
(a) Did the Board have the power to order the City to enact a DPS by-law?
(b) Is the City entitled under s. 17(44) of the Act to have the appeals of OPA 258 adjudicated before enacting a DPS by-law?
Did the Board have the Power to Order the City to Enact a DPS by-law?
[36] The City argues that the effect of the Board’s decision to adjourn the appeals until the passage of a DPS by-law was effectively an order that the City pass a DPS by-law.
[37] Contrary to the City’s submission, the Board agreed with the City’s position that a DPS by-law did not need to be passed concurrently with OPA 258, that the City had exclusive jurisdiction over when and if to pass a DPS by-law and that the Board cannot compel the City to pass a DPS by-law.
[38] The Board did not order the City to pass a DPS by-law. Before the Board the City acknowledged that it had adopted OPA 258 to implement a DPS by-law and that it intended to pass a DPS by-law. The City provided no explanation for why it had not passed a DPS by-law in the three years since the passage of OPA 258, and submitted no evidence that adjourning the appeals would adversely affect or delay the passing of a DPS by-law. Further, it is not contested that the provisions of OPA 258 would have no practical effect until the City passes a DPS by-law.
[39] In the face of this evidence and the uncontested evidence of the expert before them that without a DPS by-law it was not reasonable or practical to assess the appropriateness, completeness and land use planning merits of OPA 258, the Board adjourned the appeals to allow the City the opportunity to enact a DPS by-law. That way, the two instruments required for the new system of development approvals would be considered together at one hearing. A concurrent assessment was found to be the most efficient and effective way to test OPA 258, and to address the imperative, stated by the Board, of the “need to get” this fundamental change to the development approval system “right”. The Board decided that that adjournment was in the public interest given this conclusion.
[40] The Board’s decision leaves it entirely in the hands of the City as to when or whether it passes a DPS by-law. Far from ordering the City to pass such a by-law, the decision specifically contemplates the possibility that it might not do so. In the event that it does not do so, the Board ordered that any party may request the Board to reconvene one year after its decision, at which time they can ask the Board to determine the status of the proceeding, or seek any other disposition “as may be determined necessary.”
[41] Thus, the answer to the first question upon which leave was granted is that the Board did not err in law because it did not order the City to pass a DPS by-law.
Is the City entitled under s. 17(44) of the Act to Have the Appeals of OPA 258 Adjudicated Before Enacting a DPS By-Law?
[42] Subsection 17(44) of the Act requires the Board to hold a hearing for appeals of official plans. The City argues that by adjourning the hearing of the appeals indefinitely the Board effectively denied the City’s right to have its Official Plan amendment adjudicated in an appeal.
[43] The Board’s Rules contain a rule allowing for indefinite adjournments. However, that order can only be made if the request is made “by the applicant or proponent” of the application. According to the City, it is the proponent of OPA 258 and it did not request an indefinite adjournment. Thus, in granting the adjournment the Board acted contrary to its own rules of procedure.
[44] The Ministry supports the City’s position and emphasizes that the legislation is drafted to give municipalities flexibility – it is up to them whether they enact the DPS by-law at the same time as the OPA or not. It argued that the Board imposed a requirement on the City that runs contrary to the legislation. Further, the principle of statutory coherence requires that the adoption of OPA 258 is sufficient to hold a hearing on the merits of OPA 258. The legislation provides for an appeal of an official plan. It does not require that that appeal be heard only after a DPS by-law has been passed. If it is permissible under the Regulation to adopt an official plan dealing with the development permit system prior to a DPS by-law, the Ministry argued that it should not be permissible to refuse an otherwise statutorily required hearing solely on the basis of the timing of the enactment of a DPS by-law.
[45] For all of these reasons the City and the Ministry submit that the Board’s decision to refuse to hear the appeal of OPA 258 until a DPS by-law was passed was unreasonable.
[46] In coming to the conclusion that it did, the Board started with the Ministry’s assertion that requiring the City to pass a DPS by-law before the hearing of the appeal with respect to OPA 258 would be contrary to the legislative requirements. The Regulations require that an OPA be enacted before a DPS by-law is passed, but “they do not prevent the concurrent, or immediately successive passing of a [DPS by-law] to allow for the consideration and review of both planning instruments in tandem.”
[47] The Board also disagreed with the City’s submission that the Board’s decision to adjourn the hearing of the appeal was a denial of the City’s right to a hearing. As put by the Board:
Although the Board is indeed required under s. 17(44) of the Act to hold a hearing, once the Board is seized with jurisdiction of an appeal, it is also vested with the powers and tools as described herein to schedule and conduct that hearing as it determines necessary to achieve a hearing that is fair, efficient, adequate and just. The “right” to a hearing under the legislation does not supersede or negate the Board’s powers as to how that hearing is to be conducted, including the power to adjourn a hearing.
Moreover, the “right” to a hearing, is equally that of all parties, and the Board is obligated to ensure that all parties, without prejudice, are entitled to a fair and just hearing of the issues, upon such terms, directions and requirements as it deems necessary to determine the merits of the appeal. For the reasons indicated herein, the evidence indicates that there will be prejudice to the Landowners, Ratepayers, and the public, if the Board is not provided with the benefit of the DPB and the adjournment is necessary to address that prejudice.
[48] The Board found that its power to grant the requested adjournment flowed from its “powers and jurisdiction…to control its own processes to achieve a hearing that is fair, efficient, just and adequate.”
[49] In coming to this conclusion the Board referred to s. 37 of the OMBA, which grants it the “general power to make such orders, and otherwise do and perform all such acts, matters, deeds and things, as may be necessary or incidental to the exercise of the powers conferred upon the Board under any general or special act.” According to the Board this would include the power to adjourn a hearing until the satisfaction of an identified prerequisite necessary for the full and proper adjudication of the issues before it.
[50] The Board also noted that s. 87(2) of the OMBA expressly provides the Board with the power to make an interim, as opposed to a final, order for an adjournment. Section 21 of the Statutory Powers Procedure Act, R.S.O 1990 c. S.22 confers upon the Board the power to grant an adjournment “where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.”
[51] The City and the Ministry’s position that the Board’s decision is unreasonable because it ignores the framework that the Legislature adopted for the implementation of the development permit system ignores several key facts about that framework. First, the Act provides for a right of appeal to the Board from the passage of an official plan amendment. To adjudicate official plan amendment appeals, the Board is required to balance a variety of different stakeholder interests and produce a result that is consistent with the Provincial Policy Statement, conforms to any applicable provincial plan, and represents good planning. The Board is not simply adjudicating on a lis between two parties. To properly perform its function, the Board requires broad procedural discretion to scope and shape the hearing of appeals before it.
[52] Second, there is no statutory provision that dictates how the Board is to hear the appeals of OPA 258 or whether the Board could grant or refuse an adjournment on any particular basis. Nor was the Board subject to a statutory timeline for the disposition of the appeals. In the absence of a statutory direction, the granting of an adjournment by an administrative tribunal is an exercise of discretion, which should be informed by the particular circumstances of the case before it. In Prassad v. Canada (Minister of Employment and Immigration), 1989 131 (SCC), [1989] 1 SCR. 560 at para. 36, the Supreme Court of Canada stated:
I conclude that an adjudicator…is neither bound to accede to a request for an adjournment…nor is he or she required to refuse it. Rather, the adjudicator has a discretion. In some circumstances, an adjournment may well be granted to enable such an application; in other circumstances it may properly be refused. While the adjudicator must be cognizant that a “full and proper inquiry” be held, the adjudicator must also ensure that the statutory duty to hold an inquiry is fulfilled.
[53] In this case, having reviewed the official plan amendment at issue and considered the expert evidence before it, the Board accepted that it could not fulfill its mandate to hold a full and proper inquiry into the planning merits of OPA 258 without also having before it at least one DPS by-law. OPA 258 is drafted in very broad general terms. All the specifics of how it will be implemented are left to be included in the DPS by-laws. Given this, and given the fact that the development permit system represents a fundamental shift in how planning will take place in the City, in addition to the Board’s findings about prejudice (which are findings of fact or mixed fact and law and thus not subject to review by this court), it was reasonable for the Board to exercise its discretion in the way that it did.
[54] As noted in Prassad, supra at para. 16, tribunals such as the Board “are considered to be masters in their own house.” As such, their choices of procedure are entitled to considerable deference.
[55] The Board in its reasons refers to the fact that under its governing statutes it is granted broad authority “to control its own processes to achieve a hearing that is fair, efficient, adequate and just”. In so doing it specifically mentioned the broad power conferred under s. 37 of the Act to “make such orders… as may be necessary or incidental to the powers conferred on the Board…” and the powers it has to adjourn hearings. Two specific rules that are particularly relevant are Rules 6 and 65.
[56] Under Rule 65(f) the Board has the power to grant an indefinite adjournment, if the request is made by the applicant or proponent and is accepted by the Board as reasonable and the Board finds no substantial prejudice to the other parties or to the Board’s schedule. In this case the applicant or proponent must make the request that the hearing be rescheduled.
[57] The City submits that it is the “applicant” or “proponent” and as such the Board had no jurisdiction under Rule 65(f) to grant an indefinite adjournment. I disagree. The term “applicant” is defined in the Rules. Pursuant to s.2:
“applicant” means a person who makes an application to the Board and includes a person requesting that a matter be referred to the Board and also a person added as a party applicant by the Board. The term “appellant” may also be used to describe an “applicant” who appeals a matter to the Board.
[58] In this case the Respondents on this appeal were the parties who appealed OPA 258 to the Board. As such they were the “applicants” for the purposes of Rule 65(f). Since they requested the adjournment, the granting of an indefinite adjournment was entirely consistent with Rule 65(f).
[59] In considering this question, it is also important to note that even if the City’s position was correct, Rule 6 would grant the Board the authority to make the order that it did. Rule 6 provides:
Board May Exempt From Rules
The Board may grant all necessary exceptions from these Rules or from a procedural order, or grant other relief as it considers appropriate, to ensure that the real questions at issue are determined in a just, most cost effective and expeditious manner.
[60] As the Board recognized, it is required to hold a hearing to dispose of the appeals of OPA 258 that have been filed. However, as the master in its own house it also had the power to determine when it was most efficient and just to conduct a hearing of the appeal. In this case the evidence before the Board was that the City did intend to enact a DPS by-law and thus, the only decision that the Board made was to adjourn the hearing of the appeal relating to OPA 258 to a time when that by-law had been enacted.
[61] The Board’s Rules provide that:
- Combining Proceedings or Hearing Matters Together
In accordance with Ontario Regulation 30/02 of the Ontario Municipal Board Act, the Board may order that matters be consolidated, heard at the same time or heard one after the other, or stay or adjourn any matter until the determination of any other matter.
[62] Essentially what the Board did in this case was to adjourn the OPA 258 appeals until the City had made its determination regarding the passage of a DPS by-law.
[63] In Re Donato, [2008] 60 O.M.B.R. 82 the Board dealt with a similar situation. The landowners sought consent from their municipality to sever a property. The municipality refused. The landowners appealed to the Board pursuant to s. 53(19) of the Planning Act. Under s. 53(30) of the Planning Act, the Board was required to “hold a hearing” with respect to that appeal. Before the appeal was heard, the landowners sought to adjourn their appeal, in order to permit them to apply to the municipality for a minor variance. The respondents opposed the adjournment application, and sought to have the appeal heard, and dismissed. The Board granted the adjournment sine die, in order to permit the proposed minor variance application. In doing so the Board noted at para. 12:
…the Board finds that to hear the appeals today would be premature since no application for a minor variance to the zoning by-law has been made. Planning matters related to each other should always be heard at the same time as best evidence can be provided and there will be consistency in the decision making process.
[64] As already noted, the Board’s various authority granting statutes give the Board considerable authority to control its own process in order to perform its ultimate goal: to achieve “good planning”. How that is done is left to the Board’s expertise. One way the Board achieves good planning is to ensure that it has the best evidence upon which to base its decisions. In the case at bar, the Board determined that, on the basis of the evidence it heard, an enacted DPS by-law would provide it with important evidence regarding the planning merits of OPA 258.
[65] This decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.
[66] This conclusion regarding the reasonableness of the Board’s decision is reinforced by the fact that both the City and the Ministry acknowledge that if the matter had proceeded to a 10-day hearing, the Board could have decided that the matter was premature because OPA 258 lacked the type of specificity that might be forthcoming in a DPS by-law. One of the issues that the City put on its “Issues List” for the Board to determine was “Is OPA 258 premature in the absence of a Development Permit System By-Law?” As the Ministry acknowledged, the Board on an appeal clearly has the power to require “further clarity or certainty”. Thus, if the matter had proceeded to a hearing the Board could have decided that OPA 258 was not good planning because it lacked that clarity or certainty that a DPS by-law might provide. Any such finding would have had the same practical effect as the adjournment.
[67] In this case, the Board, as the expert tribunal with considerable familiarity with official plan amendments, on the basis of the evidence before it, was able to determine beforehand that the instrument under appeal, OPA 258, lacked sufficient clarity or certainty to be adjudicated on its planning merits and that a forthcoming instrument promised to provide that clarity. To require the Board to hold a 10-day hearing to make the same determination would be to deny the Board the procedural flexibility it needs to ensure that its determination of the issues before it is done in a just, cost-effective and efficient manner.
Conclusion
[68] For these reasons the appeal is dismissed. Pursuant to the agreement of the parties, the City is to pay the amount of $35,000 in costs, consisting of $10,000 to the Landowner Respondents, $15,000 to BILD and $10,000 for the leave to appeal.
H. Sachs J.
I agree _______________________________
A.C.J. Marrocco
I agree _______________________________
Swinton J.
Released: January 10, 2019.
CITATION: City of Toronto v. Avenue Road Eglinton Community Association, 2019 ONSC 146
DIVISIONAL COURT FILE NO.: 692/17
DATE: 20190110
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J. Marrocco, Swinton and Sachs JJ.
BETWEEN:
City of Toronto
Appellant
– and –
Avenue Road Eglinton Community Association (ARECA); Building Industry & Land Development Association (BILD); Confederation of Resident & Ratepayer Ass. (CORRA); Deltera Inc.; Lakeshore Planning Council Corp.; Riocan Real Estate Investment Trust Inc.; Riocan Holdings Inc.; Riocan Management Inc.; Swansea Area Ratepayers Group; Terracap Management Inc.; and Teddington Park Residents Association (TPRA)
Respondents
REASONS FOR JUDGMENT
H. Sachs J.
Released: January 10, 2019