CITATION: Romandale Farms Limited v. The Corporation of the City of Markham, 2021 ONSC 4204

DIVISIONAL COURT FILE NO.: DC-387/20

DATE: 2021/06/11

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Penny, and Ryan Bell JJ.

BETWEEN:

ROMANDALE FARMS LIMITED

Applicant

– and –

THE CORPORATION OF THE CITY OF MARKHAM

Respondent

Rodney Northey and Jennifer Danahy, for the Applicant

Gabrielle K. Kramer and F.F. Coburn, for the Respondent

HEARD at Toronto by videoconference: March 30, 2021

REASONS FOR JUDGMENT

RYAN BELL J.

Overview

[1] Romandale Farms Limited applies for judicial review to set aside alleged decisions of the Corporation of the City of Markham to plan and approve a four-lane collector road that will cross “Protected Lands” contained within Romandale’s Home Farm. The Protected Lands are within Ontario’s Greenbelt, and contain environmental features, habitats and species that are afforded special protection under the Greenbelt Act, S.O. 2005, c. 1 and the Endangered Species Act, 2007, S.O. 2007, c. 6.

[2] The City, a “lower-tier” municipality located within York Region, makes local planning decisions regarding the future of the communities within its boundaries. The alleged decisions in relation to the four-lane collector road concern the City’s plan for a Future Urban Area that will accommodate 17,000 new jobs and 45,000 new residents by 2031.

[3] Romandale says that the alleged decisions were contrary to various statutes including, the Environmental Assessment Act, R.S.O. 1990, c. E.18, the Planning Act, R.S.O. 1990, c. P.13, and the Endangered Species Act, 2007, and are therefore ultra vires the City’s authority. Romandale seeks an order prohibiting the City from taking any further action to advance a new collector road through Romandale’s Protected Lands.

[4] The City’s primary position is the application for judicial review is premature because the final location of the collector road has not been determined, the administrative processes under the Environmental Assessment Act are ongoing, and, in the case of the Planning Act and the Endangered Species Act, 2007, those processes are not yet engaged. The City also submits that the judicial review application does not raise a justiciable issue, and that Romandale has failed to demonstrate that the alleged decisions were not reasonable.

[5] For the following reasons, I would dismiss the application on the basis that it is premature.

Background

The Protected Lands

[6] In December 2004, approximately 80 acres on the eastern portion of Romandale’s Home Farm were designated as Greenbelt under the Greenbelt Act, 2005. Under the Greenbelt Plan, these 80 acres became designated as a Natural Heritage System, offering special protection to the environmental features within the system. The area is also home to the habitats of endangered fish and bats. The endangered species on the Home Farm and their areas of habitat are protected by the Endangered Species Act, 2007. Together, these designated Greenbelt lands and the habitats of the endangered species comprise the Home Farm’s Protected Lands.

The Future Urban Area and the Conceptual Master Plan

[7] In 2010, York Region required the City to plan for growth under the Places to Grow Act, 2005, S.O. 2005, c. 13. York Region designated the Future Urban Area as a site for future urban growth. Using the Markham Official Plan, the City designated 1,300 hectares as the Future Urban Area. The Future Urban Area consists of four concession blocks. Romandale’s Home Farm, and therefore, the Protected Lands, are located within the Angus Glen Block.

[8] Under the Markham Official Plan, the City is required to complete a Conceptual Master Plan for the Future Urban Area, to guide the intended growth with a broad planning framework. The City initiated the Conceptual Master Plan process in 2013. The transportation, water, and wastewater infrastructure components of the Conceptual Master Plan are subject to a Municipal Class Environmental Assessment (“MCEA”) under the Environmental Assessment Act.

[9] The Conceptual Master Plan process is catalogued in three volumes:

• Volume 1: Community Structure Plan and Key Policy Direction, dated September 2017 (the “Conceptual Master Plan”). On October 17, 2017, City Council endorsed the Conceptual Master Plan “as the basis for the review and approval of statutory secondary plans for the Future Urban Area” and authorized and directed staff to do “all things necessary to give effect to this resolution.”

• Volume 2: Transportation, Water and Wastewater Master Plan (the “EA Report”). The City published Volume 2 in October 2018.

• Volume 3: Subwatershed Study, published by the City in December 2019. The Subwatershed Study was released to the public in March 2020.

The Environmental Assessment Process

[10] Under the Environmental Assessment Act, the environmental assessment process is mandatory for municipal enterprises, activities and proposals. To be exempt from individual environmental assessments, municipalities can comply with an approved “Class” environmental assessment.

[11] In this case, the City elected to follow MCEA Master Plan Approach 1. Under this Master Plan approach, the City was required to complete Phases 1 and 2 of the MCEA. In Phase 1, the City was required to identify the problem or opportunity. The City identified the opportunity as the development of the Future Urban Area.

[12] In Phase 2, the City was required to undertake six steps to identify and assess the environmental impact of alternative solutions. Under the first step, the City identified four transportation strategies. The City’s transportation consultant opined that only one of the City’s identified strategies would address the opportunity identified in Phase 1. That strategy required new roads to be built within the Future Urban Area and required an increase in the capacity of existing transportation systems. The City then proceeded to comply with the five remaining steps under Phase 2, but for only this strategy.

[13] Romandale’s position is that all four transportation strategies should have been treated as alternative solutions and subjected to the remaining steps under Phase 2; by not doing so, the City failed to comply with Phase 2 of the MCEA. For its part, the City maintains that selecting one strategy to carry forward through the remainder of Phase 2 was consistent with the Master Plan approach.

[14] The City delegated Phases 3 and 4 to private sector developers. In the case of the Angus Glen Block, Phases 3 and 4 are being undertaken by the Angus Glen Landowners Group (“AGLG”). Romandale is not a member of the AGLG and the lands owned by the members of the AGLG do not include the Home Farm.

[15] Phases 3 and 4 involve the development and evaluation of the impacts of the environment of alternative design concepts and road alignments, the filing of an Environmental Study Report, and the issuance of a Notice of Completion. Phase 3 began in January 2019: four potential routes for the collector road were considered, two of which cross the Home Farm. In October 2019, the AGLG recommended a route that crossed the Protected Lands.

[16] Once Phases 3 and 4 are completed and the Notice of Completion issued, the Class EA will be reviewed by the Ministry of the Environment, Conservation and Parks for compliance with the MCEA. Under s. 16 of the Environmental Assessment Act, the Minister may order a proponent to comply with Part II of the Act before proceeding with the proposed undertaking. In addition, the Minister can conduct individual environmental assessments or impose other conditions on the undertaking in addition to those in the Class EA. No person can proceed with any of the undertakings in the Class EA for 30 days after the Notice of Completion has been issued: Environmental Assessment Act, s. 15.1.1.

[17] Finally, the Class EA will be returned to the City for Phase 5: implementation. If the October 2019 recommendation for the location of the collector road is chosen, the City will have to expropriate the Protected Lands before building can commence.

The Impugned Decisions and the Positions of the Parties

[18] Romandale takes issue with City Council’s endorsement in October 2019 of the Conceptual Master Plan that authorized and directed staff to act, and specifically, the alleged decisions that,

(i) the Angus Glen Block required two east-west collector roads;

(ii) the northern east-west collector road must have four lanes;

(iii) the northern east-west collector road must be continuous across the Future Urban Area;

(iv) the Community Structure Plan report would map the location of the northern east-west collector road across the Protected Lands;

(v) the Conceptual Master Plan formed the basis for subsequent planning approvals;

(vi) the City had fulfilled the requirements of Phases 1 and 2 of the MCEA; and

(vii) the City would delegate Phases 3 and 4 of the MCEA to private sector developers.

[19] Romandale characterizes the City’s decisions regarding the collector road as final and binding on the private sector developers carrying out Phase 3. According to Romandale, the alleged decisions narrow the range of possibilities available during Phase 3.

[20] Romandale also submits that the City’s delegation of Phases 3 and 4 to the AGLG was in breach of O. Reg. 345/93 under the Environmental Assessment Act. Romandale argues that because the project is not a project by a private sector developer – rather, it is a project to provide a City road on lands owned by a third party – it was not open to the City to delegate Phases 3 and 4 to the AGLG. In addition, Romandale asserts that by delegating a municipal decision in the public interest to the AGLG, a decision maker with a material stake in the outcome, the City introduced impermissible bias.

[21] Romandale maintains that the City has breached the Endangered Species Act, 2007. It says that the City’s proposed four-lane collector road cannot be built without a permit issued by the Minister under the Endangered Species Act, 2007 and that the City’s alleged decisions make it impossible to satisfy the requisite test regardless of when an application for a permit is filed.

[22] The City submits that no final determination respecting the location of the collector road has been made. Phases 3 and 4 are ongoing and no Notice of Completion has been issued under the Environmental Assessment Act. The City argues that Romandale will be entitled to raise its concerns during the 30-day window after the Notice of Completion is issued.

[23] In addition, the secondary plan for the Angus Glen Block, which will contain the final alignments for the collector roads has not yet been presented to York Region, the approval authority under the Planning Act.

[24] Finally, the City emphasizes that no permit application under the Endangered Species Act, 2007 has been submitted. It says that a determination as to whether a permit may be required for activities arising from the development will be governed in the normal course by the statutory and regulatory requirements of the Endangered Species Act, 2007, which are administered by the Ministry of the Environment, Conservation and Parks and not the City.

Analysis

[25] The general rule is, absent exceptional circumstances, parties who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process. Put differently, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are complete or until the available, effective remedies are exhausted: Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, at paras. 30-32. As Stratas J.A. observed in C.B. Powell, at para. 32, the principle of non-judicial interference with administrative processes prevents fragmentation of the process and piecemeal court proceedings. It is only at the end of the administrative process that a reviewing court will have all of the administrative decision-maker’s findings.

[26] In this case, the administrative processes under the Environmental Assessment Act are ongoing. It is common ground that the location of the collector road has not been finalized, although Romandale suggests that the final decision is inevitable. Phases 3 and 4 are ongoing, in which the public, including Romandale, has a right to participate. No Environmental Study Report has been filed.

[27] It is only after the final alignment of the collector road has been determined that the Notice of Completion under the Environmental Assessment Act can be issued. That, in turn, will trigger the 30-day period of Ministerial review, during which Romandale will be entitled to comment on and raise its concerns regarding the Class environmental assessment.

[28] To conclude on the Environmental Assessment Act, it would be premature for this court to entertain the application for judicial review for two reasons: (i) the final alignment of the collector road has not yet been determined; and (ii) there are no exceptional circumstances that would justify this court interfering with the ongoing administrative processes under the statute until those processes are complete.

[29] The secondary plan process is not yet underway. The secondary plan for the Angus Glen Block will contain the final alignments for the collector roads; however, the alignment has not yet been determined and the secondary plan has not yet been presented to York Region, the approval authority under the Planning Act: s. 17(2).

[30] In the event the secondary plan were to be approved by York Region, Romandale would have a right to appeal to the Local Planning Appeal Tribunal (“LPAT”): Planning Act, s. 17(24). On appeal, the LPAT would look at and consider conformity and consistency with relevant planning policy documents, including the Greenbelt Plan, the Markham Official Plan, and the Planning Act. Finally, an appeal from a decision of the LPAT lies to this court, with leave, on a question of law: Planning Act, s. 8.1(10).

[31] It would be premature for this court to interfere with a secondary plan process that is not yet underway.

[32] Finally, I disagree with Romandale’s submission that “it is timely” to assess compliance with the Endangered Species Act, 2007 notwithstanding that a permit application has not been submitted. Once Phases 3 and 4 of the Class EA are completed by AGLG, AGLG will determine if a permit is required under the Endangered Species Act, 2007. The first step, after an inventory of species, is a determination of whether avoidance of impact can be achieved. If not, AGLG will apply to the Minister for a permit to authorize the activity. If AGLG is required to apply for a permit, it is the Minister who will determine whether a permit should issue in accordance with the requirements of the statute and the regulations.

[33] In my view, it would be premature for this court to grant declaratory relief to Romandale on the basis of an application for a permit by AGLG that has yet to be made and the result of which is unknown.

[34] Because I would dismiss the application for judicial review on the basis that it is premature, I need not address the remaining issues raised by the parties, with one exception. As part of its submission that the alleged decisions are non-justiciable, the City advanced the argument that there was excessive delay in bringing the application. In my view, this argument cannot co-exist, now or in the future, with my finding that the present application for judicial review is premature.

Conclusion

[35] I would therefore dismiss the application for judicial review.

[36] In accordance with the agreement reached by the parties, Romandale shall pay the City’s costs fixed in the amount of $125,000.

Ryan Bell J.

I agree_______________________________

H. Sachs J.

I agree_______________________________

Penny J.

Released: June 11, 2021

CITATION: Romandale Farms Limited v. The Corporation of the City of Markham, 2021 ONSC 4204

DIVISIONAL COURT FILE NO.: DC-387/20

DATE: 2021/06/11

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Penny, and Ryan Bell JJ.

BETWEEN:

ROMANDALE FARMS LIMITED

Applicant

– and –

THE CORPORATION OF THE CITY OF MARKHAM

Respondent

REASONS FOR JUDGMENT

Ryan Bell J.

H. Sachs J.

Penny J.

Released: June 11, 2021