CITATION: Friends of Simcoe Forests Inc. v. Minister of Municipal Affairs and Housing, 2021 ONSC 3813

DIVISIONAL COURT FILE NO.: 445/20

DATE: 2021/05/27

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Sachs and Lococo JJ.

BETWEEN:

Friends of Simcoe Forests Inc.

Applicant

– and –

Minister of Municipal Affairs and Housing, Local Planning Appeal Tribunal, Corporation of the County of Simcoe, Township of Springwater, Nicholas Farms Inc., Edward Krajcir and Scarlett Graham Krajcir

Respondents

Ramani Nadaraja and Jacqueline Wilson, for the Applicant

Robert Ratcliffe and Andi Jin, for the Minister of Municipal Affairs and Housing

Marshall Green and Mark Vernon, for the Corporation of the County of Simcoe

Silvain Rouleau, for the Corporation of the Township of Springwater

HEARD at Toronto (by videoconference): April 26, 2021

H. Sachs J.

Overview

[1] This is an application for judicial review arising from the decision of the County of Simcoe (the “County”) and the Minister of Municipal Affairs and Housing (the “Minister”) to approve and facilitate the construction of a waste management plant in a natural heritage area.

[2] The Minister approved an Official Plan amendment passed by the County to allow for the construction of the waste management plant. Pursuant to the provisions of the Planning Act, R.S.O. 1990, c. P.13, the Applicant filed an appeal with the Local Planning Appeal Tribunal (“LPAT”) to challenge the Minister’s approval. One of the major bases for that appeal was that the construction of the facility was contrary to the provisions in the Growth Plan for the Greater Golden Horseshoe, 2017 (the “2017 Growth Plan”) that provided for the protection of natural heritage features.

[3] While the Applicant’s appeal was pending, the Lieutenant Governor in Council approved a new Growth Plan (the “2019 Growth Plan”). The 2019 Growth Plan contained provisions providing for the protection of natural heritage features that were essentially the same as those contained in the 2017 Growth Plan (“Natural Heritage Policies”). The Minister then adopted s. 4(4) of O. Reg. 311/06 (the “Transition Regulation”), which granted the waste management facility an exemption from the Natural Heritage Policies contained in the 2019 Growth Plan. As a result, the Minister and the County moved before the LPAT to argue that the Applicant could not pursue those aspects of its appeal that relied on the natural heritage features protections provided for in the 2019 Growth Plan. Nor could it rely on the protections in the 2017 Growth Plan, which had been revoked. The LPAT agreed and struck those issues from the issues list for the pending appeal.

[4] The Applicant seeks a declaration that s. 4(4) of the Transition Regulation is ultra vires. It does so on the basis that the Minister exceeded his authority under s. 19(1)(d) of the Places to Grow Act, 2005, S.O. 2005, c. 13 (“PGA”), which allows the Minister to regulate to provide for transitional matters. Thus, according to the Applicant, a precondition for the exercise of the Minister’s regulating power under s. 19(1)(d) is that there be a transitional matter. Since there had been no change in the Natural Heritage Policies between the 2017 and 2019 Growth Plans, there was no transitional matter to be addressed, and the Minister, under the guise of providing for a transitional matter, granted an exemption to a significant component of the Growth Plan policies (which had been adopted by the Lieutenant Governor in Council) and eviscerated the Applicant’s right of appeal before the LPAT. According to the Minister and the County, the fact that a new Growth Plan had been approved by the Lieutenant Governor in Council triggered a “transition”, which in turn gave the Minister the authority to deal with all pending applications or proceedings and to adopt s. 4(4) of the Transition Regulation, which granted an exemption to the project in question.

[5] For the reasons that follow, I agree with the Applicant that s. 4(4) of the Transition Regulation is ultra vires the Minister’s authority under s. 19(1)(d) of the PGA. Central to this conclusion is the fact that by granting an exemption to the Natural Heritage Policies the Minister granted an exemption to key policies that the Lieutenant Governor in Council had adopted. This neither accords with the purpose and structure of the PGA, nor with the purpose of transitional law, which is to promote the values of the rule of law – certainty, predictability, stability, rationality and fairness – when a change to the law has occurred.

[6] The Applicant also seeks to quash the LPAT decision that refused to allow it to rely on the Natural Heritage Polices in the 2019 Growth Plan. Decisions of the LPAT are appealable on a question of law alone, with leave. The Applicant, instead of pursuing an appeal, seeks judicial review of the LPAT decision on the basis that that decision involved a question of mixed fact and law. For reasons to be developed further, I would grant the application for judicial review of the LPAT decision in the exceptional circumstances of this case where the LPAT did not deal with or rule on the vires of the impugned provision.

Factual Background

The Parties

[7] The Applicant, Friends of Simcoe Forests Inc., is an incorporated non-profit citizens group with a mandate to protect and conserve the forests of the County, and to preserve and extend parks and greenbelts.

[8] The Respondents who responded to the application are the County and the Minister. The County is an upper tier municipality that provides waste management services for 16 local, lower tier municipalities. It also manages the largest municipal forest in Ontario. The Respondent, the Township of Springwater, is the township in which the County is proposing to locate its waste management facility. It appeared at the hearing, but took no part in the hearing and filed no materials. The Respondent, Nicholyn Farms Inc., advised the court by email before the hearing that it would not be attending the hearing, but that it supported the position of the Applicant. The Respondent, the LPAT, filed a Record of Proceedings, but otherwise took no part in the hearing. The other named respondents did not appear or file materials.

Official Plan Amendment 2

[9] The PGA enables the Lieutenant Governor in Council to make growth plans for different regions of Ontario (PGA, s.3). Section 3(5) of the Planning Act provides that when municipalities make planning decisions, they must conform to the growth plan for their region. Growth plans are a major provincial planning tool that are meant to guide land use planning in the province.

[10] Until July 2017, the applicable growth plan for the County was the Growth Plan for the Greater Golden Horseshoe, 2006. It was then replaced by the 2017 Growth Plan. On May 16, 2019, the Lieutenant Governor in Council adopted the 2019 Growth Plan. In 2020, after the decision of the LPAT that is at issue in this application, the Lieutenant Governor in Council made a minor revision to the 2019 Growth Plan that has no relevance to this application. Thus, consistent with the submissions of the parties, I will continue to refer to the current growth plan as the 2019 Growth Plan.

[11] Both the 2017 and 2019 Growth Plans contain provisions for the protection of natural heritage systems (s. 4.2.4), key hydrologic features (s. 4.2.3) and land adjacent to those protected elements (s. 4.2.4) (referred to in this decision as the “Natural Heritage Policies”). In all important respects, the Natural Heritage Policies are identical in both growth plans, and the Minister does not argue otherwise. The Natural Heritage Policies are a significant way in which the growth plans in question achieve one of the main purposes of the PGA: to “promote a healthy environment and a culture of conservation” (PGA, s. 1(a)).

[12] In 2016, the Legislature enacted the Resource Recovery and Circular Economy Act, S.O. 2016, c. 12, Sched. 1 (“RR Act”). It requires municipalities to follow the province’s waste management priorities when making planning decisions. Those priorities are set out in part in policy statements issued under the RR Act. One such policy statement is “Ontario’s Food and Organic Waste Policy Statement”, which was approved by the Lieutenant Governor in Council under the RR Act on April 30, 2018 (the “FOWPS”). The FOWPS, among other things, includes targets for municipalities to increase the local collection of food and organic waste. The targets aim to reduce the carbon emissions from shipping the waste outside the region, and to permit farmers in the area to use locally-produced fertilizer instead of shipping it in.

[13] In March of 2016, following a two-year selection process, the County selected the Township of Springwater for the location of a new waste management facility that would be used for recycling and composting. The proposed site was in a forest area, which the County had designated as a “Key Natural Heritage Feature.”

[14] On June 26, 2018, after the passage of the FOWPS, the County adopted Official Plan Amendment 2 (“OPA 2”), which provided the initial land use permission for the waste management facility. On November 30, 2018, the Minister approved OPA 2 under the Planning Act.

The LPAT Appeal

[15] On January 19, 2019, the Applicant appealed OPA 2 to the LPAT pursuant to s. 17(36) of the Planning Act. The Applicant argued, in part, that OPA 2 breached the Natural Heritage Polices of the 2017 Growth Plan. Specifically, the Applicant submitted that the County had failed to obtain an environmental assessment and had failed to prove that the waste management facility would have no negative impacts on key natural heritage features.

[16] On May 16, 2019 – while the LPAT proceeding was ongoing – the Lieutenant Governor in Council revoked the 2017 Growth Plan and replaced it with the 2019 Growth Plan. Since the 2019 Growth Plan did not effect any significant change to the Natural Heritage Policies, the passage of this plan did not seriously impact the Applicant’s appeal to the LPAT.

[17] The Transition Regulation is made under the PGA and sets out how ongoing planning matters will be adjudicated by the LPAT when a new growth plan comes into effect. Except where the LPAT has completed its hearing of a matter, but reserved its final decision, the conformity of ongoing planning matters will generally be determined in accordance with the new growth plan.

[18] On May 2, 2019, the Minister posted a proposal on the Environmental Registry for public consultation. The proposal was to amend the Transition Regulation to provide that OPA 2 would be continued and disposed of under the policies in the 2019 Growth Plan, with the exception of the Natural Heritage Policies.

[19] On August 28, 2019, after receiving and considering public commentary, the Minister filed O. Reg. 305/19, which made the amendments proposed to the Transition Regulation. The amendment regarding OPA 2 is found at s. 4(4) of the Transition Regulation which provides that “Amendment No. 2 to the Official Plan for the County of Simcoe shall be continued and disposed of in accordance with the 2019 Growth Plan, except subsections 4.2.2, 4.2.3 and 4.2.4 of the Plan.”

The Minister’s Statutory Authority to Make Transitional Regulations

[20] Section 19 (1)(d) of the PGA provides the Minister with authority to make transitional regulations. It reads:

19(1) The Minister may make regulations,

(d) providing for transitional matters which, in the opinion of the Minister, are necessary or desirable to facilitate the implementation of this Act, a provision of this Act or a growth plan.

The LPAT Decision

[21] Following the adoption of s. 4(4) of the Transition Regulation, the LPAT ordered all parties to the OPA 2 appeal to provide an Issues List indicating the matters that would be addressed at the hearing. The Applicant listed its two-growth plan-related issues: the lack of an environmental assessment and the County’s failure to demonstrate that the waste processing facility would result in no negative impacts on key natural heritage features.

[22] The Minister and the County brought a joint motion to the LPAT to strike these two issues, relying on s. 4(4) of the Transition Regulation, which exempted OPA 2 from the Natural Heritage Policies in the 2019 Growth Plan.

[23] On September 18, 2020, the LPAT granted the motion to strike.

Jurisdiction and Standard of Review

[24] Section 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 provides this Court with jurisdiction to declare that a decision made in the exercise of a statutory power is invalid (s. 2(1)2) and to entertain a request to quash a decision “despite any right of appeal” (s. 2(1)1). Pursuant to s. 1, a “statutory power” includes a power to make a regulation.

[25] In an application concerning the vires of a regulation, the court must simply determine whether the regulation is intra vires or ultra vires. The reasonableness standard does not apply (Hudson’s Bay Company ULC v. Ontario, 2020 ONSC 8046 (Div. Ct.) at paras. 37 and 39).

General Principles Applicable to Determining the Vires of a Regulation

[26] The leading authority on the vires of a regulation is Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810 (“Katz”). At para. 24 of Katz, Abella J. begins her analysis with the following statement:

[24] A successful challenge to the vires of regulations require that they be shown to be inconsistent with the objective of the enabling statute or the scope of the statutory mandate (Guy Régimbald, Canadian Administrative Law, (2008), at p. 132). This was succinctly explained by Lysyk J.:

In determining whether impugned subordinate legislation has been enacted in conformity with the terms of the parent statutory provision, it is essential to ascertain the scope of the mandate conferred by Parliament, having regard to the purpose(s) or object(s) of the enactment as a whole. The test of conformity with the Act is not satisfied merely by showing that the delegate stayed within the literal (and often broad) terminology of the enabling provision when making subordinate legislation. The power-conferring language must be taken to be qualified by the overriding requirement that the subordinate legislation accord with the purposes and objects of the parent enactment as a whole.

[27] In Hudson’s Bay at para. 37, the Divisional Court summarized the principles that apply when determining the vires of a regulation:

(a) Judicial review of a regulation is usually restricted to two questions: (1) Was a condition precedent not met before the regulation was enacted; (2) Is the regulation inconsistent with the purpose of the enabling statute? To this principle, in accordance with para. 24 of Katz, I would add the question: (3) Was the regulation inconsistent with the scope of the statutory mandate?

(b) Regulations are presumed to be valid. This means that the burden falls on the party challenging the validity of the regulation and that the court is to favour an interpretation that “reconciles the regulation with its enabling statute so that, where possible, the regulation is construed in a manner which renders it intra vires” (Katz at para. 25).

(d) “Courts are not to assess the policy merits of a regulation to decide whether it is ‘necessary, wise or effective in practice’” (Hudson’s Bay at para. 37, citing Katz at para. 27).

(e) The motives for enacting a regulation are irrelevant.

(f) “Underinclusiveness is not a valid ground for challenging a regulation as ultra vires” (Hudson’s Bay at para. 37, relying on Katz at para. 40).

(g) Regulations must be “‘irrelevant’, ‘extraneous’ or completely inconsistent with the statutory purpose to be found ultra vires on the basis of inconsistency with the statutory purpose... it would take an egregious case to warrant such an action” (Katz at para. 28).

Position of the Parties

[28] The Applicant challenges the impugned regulation on three grounds. First, it argues that the Minister failed to meet a precondition to the exercise of his regulating power under s. 19(1)(d), namely that any regulation made pursuant to that section must deal with a “transitional matter.” Transitional matters only arise when there has been a change in the content of the Growth Plan policies governing a planning application. Here there was no such change. Second, the Applicant submits that the regulation is ultra vires because it is inconsistent with the purpose of the PGA. Third, it argues that the Minister adopted the regulation for an irrelevant and extraneous purpose.

[29] The Minister submits that the phrase “providing for transitional matters” does not create a condition precedent for the exercise of the Minister’s authority under s. 19(1)(d). Rather, the phrase is a “descriptor” of the type of regulation the Minister may make. If the Legislature had wanted to limit the Minister’s regulating power under s. 19(1)(d) to situations where there has been a change in growth plan policies, it would have done so expressly. The Minister also submits that the Applicant has not met its onus of demonstrating that s. 4(4) is inconsistent with the purpose of the PGA. According to the Minister, the Applicant has narrowly construed that purpose and has erroneously concluded that it is to “direct urban growth away from natural heritage features and systems.” In fact, protecting natural resources is but one of the competing purposes of the PGA. Section 1(a) of the PGA requires decisions about growth to be made “in ways that sustain a robust economy, build strong communities and promote a healthy environment and culture of conservation.” The Minister argues that the Applicant’s third argument challenges the motives of the Minister in making the regulation. Motives are irrelevant when assessing the vires of a regulation.

[30] The County supports the position of the Minister and argues that the impugned regulation was both consistent with the objectives of the PGA and consistent with the Minister’s statutory authority to make regulations under s. 19(1)(d). The County also argues that in adopting the regulation at issue, the Minister was seeking to balance various considerations and policies, including the FOWPS, and that the Minister chose a solution that was consistent with protecting the environment, as the waste processing plant would have the effect of reducing carbon emissions by reducing the need to transport waste.

Analysis

Does s. 4(4) of the Transition Regulation fall within the scope of the Minister’s statutory mandate under s. 19(1)(d) of the PGA?

[31] Section 19(1)(d) of the PGA allows for the Minister to make regulations “providing for transitional matters”. The Applicant asserts that this is a condition precedent to the exercise of the Minister’s authority under s. 19(1)(d). In my view a better way to ask the central question on this application is whether this aspect of s. 19(1)(d) describes a limit to the scope of the Minister’s authority under s. 19(1)(d) and, if so, how?

[32] Answering this question requires interpreting the meaning of the phrase “transitional matter.” The modern approach to statutory interpretation requires the Court to read the words of an act “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Re Rizzo & Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 S.C.R. 27 at para. 21). Statutes are deemed to be remedial and must “be given such fair, large and liberal interpretation as best ensures the attainment of its objects” (Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64).

The Scheme and the Purpose of the PGA

[33] The preamble to the PGA references the need for a “rational”, “strategic”, “integrated”, and “co-ordinated” approach to planning about growth that should occur “across all levels of government.” This need for a “rational and balanced approach” and the “co-ordination of growth policies among all levels of government” is reinforced in s. 1 of the PGA, where the purposes of the statute are set out.

[34] The vehicles provided for in the PGA for the achievement of such an approach are the designation of growth plan areas and adoption of growth plans. Under s. 3 of the PGA, it is up to the Lieutenant Governor in Council to decide which areas of the province are to be designated as growth plan areas. Once an area has been designated as a growth plan area, it is the Minister’s responsibility to prepare a growth plan for that area (PGA, s. 4). To fulfill that responsibility, the Act gives guidance to the Minister about what should be included in a growth plan and provides that once the Minister has prepared a growth plan, they are to give notice of the proposed plan to the public, municipalities, the municipal planning authority and the planning board. The Minister is also to provide an opportunity for these parties to make representations about the plan (which can include public hearings). It is then up to the Minister to decide what modifications should be made to the growth plan.

[35] Once the Minister has finalized any modification to the proposed plan, the growth plan is submitted to the Lieutenant Governor in Council (PGA, s. 7(5)). It is then up to the Lieutenant Governor in Council to decide whether to approve or modify the growth plan in whole or in part (s. 7(6)). Under s. 7(7), the Minister may decide to revoke a particular growth plan, but only with the approval of the Lieutenant Governor in Council. Decisions about approving or revoking a growth plan are final and not subject to appeal (s. 7(8)). The Minister may propose amendments to a growth plan, but if they do, they must give notice to a number of entities, including the municipality, municipal planning authority and the planning board of the proposed amendment. All amendments to a growth plan, except minor amendments, must be approved by the Lieutenant Governor in Council.

[36] Growth plans are binding on municipalities and municipal planning authorities. All Official Plans must conform to the growth plan. Under the PGA, the Minister is given authority to employ certain tools to ensure that municipal plans do conform to the growth plan (ss. 12 and 13). Growth plans are also binding on any decision makers under the Planning Act, which would include the LPAT (s. 14(1)).

[37] If there is a conflict between a direction in a growth plan and a direction in a policy such as the FOWPS, “with respect to a matter relating to the natural environment or human health, the direction that provides more protection to the environment or human health prevails” (s. 14(4)).

[38] Section 18 of the PGA gives the Lieutenant Governor in Council the power to make regulations under the PGA, including regulations that determine whether a conflict exists between a direction in a growth plan and another government plan or policy, determining the nature of that conflict and resolving that conflict. Any regulation made by the Lieutenant Governor in Council under s. 18 of the PGA prevails over any other “Act or any other regulation” (s. 18(4)).

[39] Section 19 of the PGA deals with the Minister’s power to make regulations. That power includes the power at the heart of this application – s. 19(1)(d) – the power to “make regulations providing for transitional matters, which, in the opinion of the Minister, are necessary or desirable to facilitate the implementation of this Act, a provision of this Act or a growth plan.”

[40] Section 19(2) provides direction as to the type of regulation that may be made pursuant to s. 19(1)(d). It reads:

(2) Without limiting clause (1)(d), a regulation under that clause may,

(a) provide for transitional matters respecting matters, applications and proceedings that were commenced before or after a growth plan comes into effect;

(b) determine which matters, applications and proceedings shall be continued and disposed of in accordance with the growth plan and which matters, applications and proceedings may be continued and disposed of as if the growth plan had not come into effect;

(c) deem a matter, application or proceeding to have been commenced on the date or in the circumstances described in the regulation.

[41] Section 19(3) states that a regulation made by the Minister may be “general or specific in its application” and s. 19(4) provides that in the event of a conflict between a regulation made by the Minister under s. 19(1)(d) and “any Act or regulation under any Act, the regulation under clause (1)(d) prevails.”

[42] Of note for the purposes of this application are the fact that the PGA, in order to facilitate its goals of rational, balanced and co-ordinated planning, is specific about which decisions may be made by the Minister and which decisions must either be made by or approved by the Lieutenant Governor in Council. Growth plans are adopted and revoked by the Lieutenant Governor in Council, not the Minister. Further, all but minor growth plan amendments must be approved by the Lieutenant Governor in Council. It is the Lieutenant Governor in Council that is given the power to regulate to resolve conflicts between growth plan policies and directions from other ministries.

Purpose of Transitional Law

[43] Ruth Sullivan discusses the sources of transitional law in her text Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis Canada, 2014). As summarized by her at ch. 25, the sources of transitional law include (i) the Canadian Charter of Rights and Freedoms (see s. 11(g) which provides protection to people charged with offences against retroactive legislation that makes conduct an offence when it was not an offence at the time of the impugned conduct), (ii) the general rules found in federal and provincial statutes like Interpretation Acts and (iii) the common law that involves concepts like vested rights and the distinctions between substantive and procedural law. However,

25.4 [t]he final and most useful source of transitional law is the new legislation whose application is in issue. Whenever the law is changed, the law-maker must address the transitional problems that may arise when the new law comes into effect. [Emphasis added.]

[44] Professor Sullivan also focuses on the principles underlying transitional law. As put by her, “[a]n appreciation of the concerns underlying transitional law provides a sound basis for dealing with transitional issues in a coherent and functional way” (para. 25.5). Central to understanding transitional law is an understanding of the rule of law and the values it serves:

25.6 The most compelling concern underlying transitional law is the rule of law and the values served by the rule of law - certainty, predictability, stability, rationality, and formal equality. One of the great virtues of law is that it provides a stable framework within which people can carry on their activities. Law that changes too frequently or quickly or in an unexpected way undermines the sense of security of citizens and their willingness to participate in the relationships and activities on which a stable society and economy depend. Principles of fairness are also important. [Emphasis added.]

[45] What is clear from these quotes is that transitional law is law that deals with what rules apply when there is a change in the law.

Dictionary Definition of “Transitional”

[46] This understanding is consistent with the dictionary definitions of the word “transition” and “transitional”. In the Concise Oxford English Dictionary, 12th ed. (New York: Oxford University Press, 2011), the word “transition” is defined as “the process or a period of changing from one state to another” (emphasis added). In the Cambridge Advanced Learner’s Dictionary, 4th ed. (Cambridge: Cambridge University Press, 2013) the adjective “transitional” is defined as “belonging or relating to change, or the process of change, from one form or type to another” (emphasis added).

Caselaw

[47] In Her Majesty the Queen in Right of Ontario v. Miller, 2014 ONSC 6131, 31 M.P.L.R. (5th) 308, Harvison Young J. (as she then was) dealt with a motion for leave to appeal from a decision of the Ontario Municipal Board as to whether the transitional regulation under the PGA applied. At para. 19 of her decision the motion judge made the following statement regarding the purpose of the transitional regulation:

The purpose of the transitional regulation is to grandfather persons who have been “in the mill” (to use the respondents’ term) and, out of a sense of equity, to protect them from the unfairness of changing rules within a planning system that is, and must be, dynamic.

[48] The LPAT in Bolton North Hill Landowners Group Inc. v. Peel (Region), 2020 89024 (ONLPAT) states at para. 57 that “the purpose of the transitional regulation is to protect against the unfairness of changing ‘rules’ so to speak.”

The Transition Regulation under the PGA

[49] The Transition Regulation provides rules that govern a “matter” (defined as including “an application, proceeding and request”) that was commenced under one growth plan and is not disposed of before a second growth plan is enacted. Those rules (with the exception of the impugned provision and one other provision where a change was made in the new growth plan that affected the application in question) take the form of describing which matters are to be decided according to which growth plan. The rules are both general and specific in nature. For example, pursuant to s. 3(5) of the Transition Regulation:

(5) Subject to subsection (6) [which does not apply to the matter in issue] a matter that is described in section 2 [which includes an official plan amendment] and commenced on or after June 16, 2006 shall be continued and disposed in accordance with the [2019 Growth Plan].

[50] Thus, absent a specific provision to the contrary, the appeal before the LPAT would be continued and decided under the 2019 Growth Plan, even though it was commenced under the 2017 Growth Plan.

[51] Specific matters are covered in s. 4 of the Transition Regulation. Except for s. 4(4) and one other (referenced above) what is provided is that certain specific matters are to be continued and disposed of in accordance with a Growth Plan other than the 2019 Growth Plan.

[52] There is a marked difference between s. 4(4) of the Transition Regulation and the other sections of that regulation. It provides an exemption to certain key policies of a new growth plan when the new growth plan made no substantive change to those policies.

[53] This raises the following question: can the Minister use his authority to make regulations providing for transitional matters to grant an exemption to the application of certain key policies in a growth plan when no change affecting those policies has taken place as a result of the adoption of a new growth plan? Again, this question brings us back to the meaning of “providing for transitional matters” in s. 19(1)(d) of the PGA.

Does “providing for a transitional matter” include the authority to grant an exemption to the key policies in a growth plan when no change affecting those policies has taken place?

[54] As discussed previously in these reasons, the usual purpose of transitional law is to address the problems that arise when the law changes. This purpose is consistent with the dictionary meanings of the words “transition” and “transitional”, both of which are rooted in the process of changing from one state to another, with “transitional” being something that is related to that change. This purpose is also consistent with the limited caselaw on the purpose of the Transition Regulation and with the framework and purpose of the PGA.

[55] As detailed above, the PGA is focused on providing a rational, integrated and coordinated approach to growth across all levels of government. To accomplish that end the PGA uses two vehicles – designated growth plan areas and growth plans. The decision as to which areas should be designated as growth plan areas is that of the Lieutenant Governor in Council, a body that includes representation from all ministries in the government. Similarly, it is the Lieutenant Governor in Council that must approve a growth plan before it is adopted and it is only the Lieutenant Governor in Council that may revoke a growth plan. Within this framework, the Minister is given some authority, described in and prescribed by the PGA.

[56] One of the bases on which the Minister may exercise their authority is when they are “providing for transitional matters” under s. 19(1)(d). Section 19(2) gives examples of what a regulation under s. 19(1)(d) may do. First, pursuant to s. 19(2)(a), it may provide for “transitional matters” respecting any applications or proceedings that were commenced before or after a growth plan comes into effect. Again, the scope of the Minister’s authority to regulate in respect of applications or proceedings commenced after or before a growth plan came into effect is limited to “transitional matters”. Second, pursuant to s. 19(2)(b), it may determine which of the matters or proceedings “shall be continued and disposed of in accordance with the growth plan” and “which may be continued and disposed of as if the growth plan had not come into effect.” Finally, pursuant to s. 19(1)(c), a regulation may deem that a matter or proceeding “has been commenced on the date or in the circumstances described in the regulation.”

[57] The Transition Regulation provides several examples of the Minister’s exercise of their regulating power under s. 19(1)(d). As noted, s. 2.1(1) of the regulation creates a presumption that a matter commenced before the 2019 Growth Plan shall be continued and disposed of in accordance with the 2019 Growth Plan. Section 2.1(2) creates an exception to that presumption, namely that if the LPAT has completed the hearing and has its decision under reserve, the matter shall be determined under the 2017 Growth Plan. It also provides that in certain situations matters that were commenced before June 16, 2006 shall be disposed of as if the 2019 Growth Plan had not come into effect.

[58] Section 4(4) of the Transition Regulation, unlike the other provisions of the Transition Regulation, provides an exemption to certain significant policies under the 2019 Growth Plan in a situation where the passage of the new growth plan had effected no change to the policies at issue in the pending application. The proceeding in question was commenced under the 2017 Growth Plan, which the Lieutenant Governor in Council approved. It contained the Natural Heritage Policies. While it was pending, the Lieutenant Governor in Council approved the 2019 Growth Plan, which also contained the Natural Heritage Policies. Because the appeal of OPA 2 was not yet disposed of, the Minister used s. 19(1)(d) to exempt OPA 2 from the Natural Heritage Policies, a significant component of both of the Growth Plans that the Lieutenant Governor in Council had approved. In doing so, he effectively undercut the decisions of the Lieutenant Governor in Council, and he also undercut the Applicant’s right to appeal his prior approval of OPA 2 to the LPAT.

[59] According to the Minister, a broad reading of the Minister’s authority under s.19(1)(d) permitted him to regulate in this fashion. As put by the Minister in para. 27 of their factum:

It is clear that the legislature intended for the Minister’s regulation making powers under s. 19(1)(d) to be broad in their scope and controlling in their effect. With respect to scope, section 19(2) lists the type of regulations the Minister may make under section 19(1)(d), but the examples are expressly drafted as “without limiting” the Minister’s authority. With respect to effect, section 19(4) provides that the Minister’s powers under s. 19(1)(d) prevail over the terms of any other provision within the PGA, and indeed, prevail over the terms of any other legislation or regulation in Ontario.

[60] The Minister argues that the phrase “providing for transitional matters” does not create a condition precedent for the exercise of the Minister’s powers in s. 19(1)(d). “Rather the phrase is a descriptor of the type of regulations the Minister may file” (Minister’s Factum, para. 39). Because of this Professor Sullivan’s comments about the general purpose of transitional laws do not apply. Her comments do not address the distinct wording of s. 19(1)(d).

[61] According to the Minister, s. 19(1)(d) gives the Minister the authority to regulate anything that in their opinion is necessary to effect the purposes of the PGA during a transitional period, i.e., during the period where a matter has been commenced under one growth plan and is being continued under another. Since the appeal of OPA 2 was started when the 2017 Growth Plan applied and is being continued after the 2019 Growth Plan was enacted, it is a “transitional matter”.

[62] The wording of s. 19(2)(a) does not support the Minister’s argument that “transitional matter” is a descriptor for any matter or proceeding that is pending during the transitional period. That clause speaks of providing for “‘transitional matters’ respecting matters, applications and proceedings that were commenced before or after a growth plan comes into effect”. Thus, the legislation makes a distinction between a “transitional matter” and a pending matter, application or proceeding. Again, the Minister may regulate respecting a matter, application or proceeding that was commenced before or after a growth plan came into effect, but only in respect of a “transitional matter”.

[63] The Minister’s submission that “transitional matter” refers to the power to regulate during a transition period would give the Minister complete discretion during a period of transition to decide what growth plan policy from which growth plan to apply to a particular proceeding. As put by the Minister “it is common for a planning application to begin under one policy regime but be approved by later decision makers under another policy regime…” (Minister’s Factum, para. 14). Thus, it is common for applications to be in a transition period. Therefore, according to the Minister, while the PGA gives the authority to the Lieutenant Governor in Council to finally approve growth plans (and the policies they contain), the Minister has the complete discretion to exempt any particular matter from any of those policies.

[64] This interpretation, while broad, has two effects that are antithetical to the purpose of the PGA and the goal of transitional law. First, contrary to the provisions of the PGA, practically speaking the Minister would have the power to override decisions of the Lieutenant Governor in Council about what policies should apply in a planning matter, even when the Lieutenant Governor in Council has made no substantive change to that policy. Second, this complete discretion on the part of the Minister enhances uncertainty, unpredictability and instability – three conditions that are antithetical to the values underlying the rule of law and the values that are to guide transitional law.

[65] The Minister’s submission as to the scope of the Minister’s regulatory power respecting transitional matters also mischaracterizes the relationship between s. 19(1)(d) and s. 19(2) of the PGA. According to the Minister, the introductory words to s. 19(2), namely “without limiting the generality of the foregoing” indicate that the power is a very broad one. However, taken in context, s. 19(2) cannot be relied upon to broaden the scope of the power conferred in s. 19(1)(1)(d). If s. 19(1)(d) provides a limit to the exercise of that power, s. 19(2) cannot be used to eliminate that limit.

[66] The County submits that the Minister’s adoption of s. 4(4) of the Transition Regulation was in keeping with the Minister’s mandate to resolve conflicts between competing land use provisions during transitional periods. In this case those competing provisions were the Natural Heritage Policies in the 2017 and 2019 Growth Plans and the provisions of the RR Act and the FOWPS.

[67] There are several problems with this argument. First, the Minister gave his approval to OPA 2 after the FOWPS was put in place and before the adoption of the 2019 Growth Plan. That approval triggered the appeal before the LPAT. The adoption of the 2019 Growth Plan did not create any conflict between the two documents. In other words, if there was a conflict between the Growth Plan and the FOWPS, the Minister resolved that conflict before the 2019 Growth Plan was passed by approving the proposed official plan amendment, which then triggered the Applicant’s right of appeal under the Planning Act. Second, the Minister made s. 4(4) of the Transition Regulation pursuant to s. 19(1)(d), not pursuant to any power he may have to resolve conflicts. Third, the PGA makes specific provision as to which government entity may make regulations to resolve conflicts. Under s. 18(1)(d) that power rests with the Lieutenant Governor in Council and not the Minister.

[68] I appreciate that governing is not the role of the courts, hence the strong presumption in favour of the vires of a regulation. However, interpreting laws in a way that upholds, rather than undermines, the rule of law is fundamental to the court’s mandate. In this case the Minister exempted a proceeding from the application of the policies that the Lieutenant Governor in Council had adopted, and he did so under a legislative regime that granted him authority to regulate to provide for transitional matters. Transitional lawmaking is a necessary part of upholding the rule of law, as changes in the law do get made on a regular basis. Mechanisms must be in place to decide what law is to apply in the face of those changes. Under the PGA the Minister was given the authority to make regulations addressing these issues. The Minister was not given the authority to exempt certain proceedings from important planning policies that the Lieutenant Governor in Council had adopted and not changed. If his law-making power was to extend to overruling the Lieutenant Governor in Council on policy issues, the provision granting him that authority should have said so explicitly. Otherwise, we are left with a regime where every time a growth plan changes midstream (which the Minister concedes is common) it is the Minister, not the Lieutenant Governor in Council, who gets to decide whether a policy that the Lieutenant Governor in Council has approved and not changed applies to the proceeding. This is not how the PGA is structured nor is it consistent with policy making that draws on the expertise of all levels of government (one of the purposes of the PGA).

[69] It is also not consistent with the rule of law. When the law changes midstream during a proceeding, there are necessarily concerns about stability, predictability, consistency and fairness that arise. It is the role of transitional law to mitigate those concerns. It is not the role of transitional law to change the rules when the body charged with making the law at issue has made no change to that law. If it were, transitional law would only add to the unpredictability and unfairness of the legal framework and increase the likelihood that the citizens who are governed by that framework lose faith in its integrity.

[70] For these reasons I find that s. 4(4) of the Transition Regulation is ultra vires. Given this finding there is no need for me to deal with the other vires arguments raised by the Applicant.

Remedy

[71] The Applicant also seeks to quash the LPAT decision that refused to allow it to rely on the Natural Heritage Policies in the 2019 Growth Plan. Decisions of the LPAT are appealable on a question of law alone, with leave. The Applicant seeks judicial review of the LPAT decision on the basis that that decision involved a question of mixed fact and law.

[72] This Court recently issued a decision dealing with the question of whether the Court should entertain an application for judicial review in the face of a limited right of appeal. In Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.), the applicant sought to both appeal and judicially review a decision of the Licence Appeal Tribunal. Appeals from that tribunal are limited to questions of law. The applicant sought to combine her appeal with an application for judicial review in the event that the Court found that the errors in question were errors of fact or mixed fact and law. The Divisional Court dismissed the appeal on the basis that it did not raise a question of law. With respect to the request for judicial review, the finding of the Court is summarized at para. 4:

Judicial review is a discretionary remedy. Only in exceptional circumstances will this court exercise its discretion to consider a judicial review application where there has been a statutory appeal from a LAT decision about statutory accident benefits. There are no exceptional circumstances here, and this court declines to judicially review the decision.

[73] This reasoning is applicable to the case at bar. While the Applicant did not appeal the LPAT decision it now seeks to have set aside, it had the right to seek leave to do so. The fact that that appeal right was limited to questions of law does not, in itself, make it appropriate for this Court to exercise its discretion to grant judicial review.

[74] However, in this case, unlike Yatar, there are exceptional circumstance that do make it appropriate for us to exercise our discretion to grant a remedy respecting LPAT’s decision. First, LPAT did not deal with or rule on the vires of the impugned provision, although the issue was argued in front of it. It would not have had jurisdiction to make a declaration that the impugned provision was ultra vires the authority of the Minister and thus it was appropriate for the Applicant to bring an application for judicial review to this Court seeking this relief. Second, since the sole reason for the LPAT’s decision was the existence of a regulation that this Court finds to be ultra vires, it is in the interests of justice that this Court set aside the LPAT’s decision to strike the Applicant’s growth plan issues rather than running the risk that the Applicant must bring another application for judicial review should the LPAT fail to expand the scope of its review of OPA 2 to include the Natural Heritage Policy issues raised by the Applicant.

Conclusion

[75] For these reasons, the application is allowed and an order will go as follows:

(1) Section 4(4) of the Transition Regulation is declared ultra vires the PGA and of no force and effect.

(2) The decision of the LPAT dated September 18, 2020, finding that ss. 4.2.2, 4.2.3 and 4.2.4 of the 2019 Growth Plan do not apply to OPA 2 is set aside and the matter is remitted to the LPAT with the direction that these subsections do apply to its review of OPA 2.

[76] All parties except the County agreed that each party should bear their own costs of this application. In view of the result, this agreement and the nature of this application, there will be no order as to costs.

H. Sachs J.

I agree _______________________________

Swinton J.

I agree _______________________________

Lococo J.

Released: May 27, 2021