Town of Ajax et al, 2019 ONSC 4322

OSHAWA COURT FILE NO.: CV-18-00002770-00ML

DATE: 20190716

CORRECTED DATE: 20191021

SUPERIOR COURT OF JUSTICE (DIVISIONAL COURT) - ONTARIO

RE: Pickering Developments (401) Inc., Pickering Developments (Squires) Inc. and Pickering Developments (Bayly) Inc., Moving Parties

And:

The Corporation of The Town of Ajax, Picov Holdings Inc. & Picov Cattle Co, The Regional Municipality of Durham, Ontario Lottery and Gaming Corporation and 2322244 Ontario Inc. Respondents

BEFORE: Corkery J.

COUNSEL: C. Barnett and A. Clutterbuck for the Moving Parties

A. Biggart for the Respondent, The Corporation of the Town of Ajax

B. Kussner for the Respondent, Picov Holdings Inc. & Picov Cattle Co.

C. Boyd for the Respondent, Region of Durham

HEARD: March 29, 2019

ENDORSEMENT

Motion for Leave to Appeal

CORRECTED: The year of release has been added to the citation.

corkery j.

A. Introduction

[1] Pickering Developments (401) Inc., Pickering Developments (Squires) Inc. and Pickering Developments (Bayly) Inc. (collectively "Pickering Developments"), seek leave to appeal to a full panel of the Divisional Court, the August 29, 2018 decision of the Local Planning and Appeal Tribunal ("the Tribunal").[^1]

[2] Responding submissions were received from Picov Holdings Inc. & Picov Cattle Co. (collectively "Picov") and the Town of Ajax ("the Town") only. The Regional Municipality of Durham, Ontario Lottery and Gaming Corporation, and 2322244 Ontario Inc. took no position on this motion.

[3] The Tribunal decision granted the appeals of Pickering Developments and 2322244 Ontario Inc. in part, approving an official plan amendment to the Ajax Official Plan, and a zoning by-law amendment to the town's zoning by-law. Official Plan Amendment No. 49 (the "OPA") and Zoning By-law 93-2015 (the "ZBA"), permit the potential future expansion of an existing gaming establishment on lands owned by Picov within the Town of Ajax known as "Ajax Downs". The amendments allow the casino at Ajax Downs to increase the total number of gaming positions from 800 slot machines to 2,500 slot machines and 1,200 table gaming positions.

[4] The OPA, as approved by the Tribunal, permits an expansion of gaming activities to include casino-type table games and removes an 800 slot machine limitation. The ZBA, as approved, removes the 800 slot machine limitation and establishes two holding provisions: H-1 and H-2.

[5] The following issues are sought to be determined on this appeal:

1. whether the Tribunal erred in law by giving the Town the discretion to amend the zoning by-law beyond the removal of a holding symbol, pursuant to s. 36 of the Planning Act, R.S.O. 1990, c P.13, as amended; and

2. whether the Tribunal erred in law by denying Pickering Developments procedural fairness and natural justice by deciding after the commencement of the hearing to impose time limits on its evidence in chief and cross-examinations, and applying time limits unequally to the prejudice of Pickering Developments.

B. Test for Leave to Appeal

[6] Pursuant to s. 37(1) of the Local Planning Appeal Tribunal Act, 2017, S.O. 2017, c. 23, Sched. 1., formerly s. 96(1) of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28., an appeal lies from the Tribunal to the Divisional Court with leave and only on a question of law.

[7] As the Tribunal was interpreting and applying its home statute, the Planning Act, the presumed appropriate standard of review is reasonableness:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

[8] The test for leave to appeal requires that the question of law be of sufficient importance to merit the attention of the Divisional Court and that there is reason to doubt the reasonableness of the decision under review: Train v. John Weir et al., 2012 ONSC 5157, 299 O.A.C. 307, at paras. 4-6; Union Gas Limited v Municipal Property Assessment Corporation, 2016 ONSC 7128, at paras. 3-11.

[9] With respect to the second issue, the test is different. As stated by the Court of Appeal for Ontario in London (City) v. Ayerswood Development Corp. (2002), 2002 3225 (ON CA), 167 O.A.C. 120 (C.A.) at para. 10, citing Moreau‑Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249 at paras. 74-75:

When considering an allegation of a denial of natural justice, a court need not engage in an assessment of the appropriate standard of review. Rather, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly.

C. Analysis

Issue 1

[10] Section 36 of the Planning Act sets out a public process by which a municipality may pass and amend zoning by-laws. Section 36 provides an exception to the requirements of s. 34, to permit an amendment to a zoning by-law to lift a "H" holding symbol without following the public process prescribed by s. 34:

36(1) The council of a local municipality may, in a by-law passed under section 34, by the use of the holding symbol "H" (or "h") in conjunction with any use designation, specify the use to which lands, buildings or structures may be put at such time in the future as the holding symbol is removed by amendment to the by-law [emphasis added].

(4) Subsections 34 (10.7), (10.9) to (20.4) and (22) to (34) do not apply to an amending by-law passed by the council to remove the holding symbol, but the council shall, in the manner and to the persons and public bodies and containing the information prescribed, give notice of its intention to pass the amending by-law [emphasis added].

[11] The ZBA, as approved, implements a "rolling hold" which permits a hold to be lifted in stages to permit gradual increases in gaming positions as certain conditions are satisfied. Effectively, the zoning is implemented in phases, tied to specific triggering events. At each stage, the Town may amend the number of gaming positions permitted, up to the maximum of 3,700 seats, as the hold is lifted in a graduated manner.

[12] The Tribunal considered the submission of Pickering Developments that s. 36 of the Planning Act does not allow for a "rolling hold" but only authorizes the Town to remove a holding symbol in its entirety at para. 165 of the decision:

I do not interpret s. 36(1) and (3) as necessarily limiting the extent to which a hold of can be established or limiting the scope of an application that can be made to remove a hold. Rather, I interpret s. 36(1) as conferring broad discretion on the Town to establish a holding provision through the passage of a zoning by-law and 36(3) as conferring a right of appeal on Picov to appeal the failure of the Town to remove the hold, whether entirely or in part, as part of an application to the Town.

[13] The Tribunal concludes, at para. 295:

With these amendments I find that the ZBA should be approved. I further find that in order to lift the holding provisions in the ZBA that the Town should be given the power to amend and lift the holding provisions [emphasis added].

[14] The statutory powers of municipalities must be interpreted "broadly and generously within their context and statutory limits, to achieve the legitimate interests of the municipality and its inhabitants": Richmond Hill (Town) v Elginbay Corporation et al, 2016 ONSC 5560 (Div. Ct), affirmed 2018 ONCA 72; leave to appeal to S.C.C. refused November 15, 2018.

[15] However, a broad, generous interpretation may not lead to more than one plausible interpretation. Indeed"[w]here the ordinary tools of statutory interpretation lead to a single reasonable interpretation and the administrative decision maker adopts a different interpretation, its interpretation will necessarily be unreasonable — no degree of deference can justify its acceptance: McLean v. British Columbia (Securities Commission), [2013] 3 S.C.R. 895, 2013 SCC 67, at para. 38.

[16] In my view, a reasonable reading of s. 36 provides a single interpretation: a holding symbol in conjunction with any use designation, specifies a future use when the holding symbol is removed by amendment. Such amendment, removing the hold, is exempt from the specified requirements of s. 34. There is simply no provision for any other amendments.

[17] Accordingly, there is reason to doubt the reasonableness of the Tribunal's decision. The proper interpretation of s. 36 of the Planning Act is of sufficient importance to merit the attention of the Divisional Court. Leave to appeal is granted with respect to Issue 1 (question 1. (a) in the Notice of Motion for Leave to Appeal).

Issue 2

[18] Although the Tribunal is the master of its own procedure and its procedural decisions are entitled to deference, the imposition of a procedural order that limited and fixed the times for examinations in-chief, cross-examinations, re-examinations and submissions after the hearing had commenced and against the objection of the moving parties presents reason to doubt that the moving parties received the procedural fairness and natural justice to which they are entitled. The hearing length was shortened from ten, to nine days, the week before it began. After hours of evidence called by the Town had been led, midway through the second day, the Tribunal imposed time limits on examinations in-chief, cross-examinations, re-examinations and submissions. The time limits could not be applied equally, as evidence already led by the Town was not subject to the same time restrictions. Furthermore, the limits fixed equal times for all witnesses without regard for the importance and the amount of evidence anticipated from each.

[19] Leave to appeal is granted with respect to Issue 2 (questions 1. (b) (i), (ii) and (iii) in the Notice of Motion for Leave to Appeal).

[20] If costs cannot be agreed upon, brief written submissions (no more than five pages in length) may be filed, on or before July 30, 2019 by the moving parties and on or before August 13, 2019 by the respondents.

J.C. Corkery J.

Corrected Released: October 21, 2019

[^1]: At the time the hearing took place in May and September 2017, the Tribunal was operating as the Ontario Municipal Board, governed by the Ontario Municipal Board Act, RSO 1990, c. O.28, as amended.