Court File and Parties
CITATION: Rideau Action Group Inc. v. Ottawa (City) et. al., 2022 ONSC 4219
COURT FILE NO.: DC-22-2696
DATE: 2022/07/05
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
Application under s. 24 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched 6
RE: RIDEAU ACTION GROUP INC., Appellant
AND:
CITY OF OTTAWA, ROGER STEVENS LP and ROGER STEVENS COLNVEST LP, Respondents
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Eric K. Gillespie & Burgandy Dunn for the Appellant
Michael S. Polowin & Michelle Cicchino, for the Roger Stevens Respondents
Garett Schromm for City of Ottawa
HEARD: June 15, 2022
DECISION ON LEAVE TO APPEAL
[1] This is a motion for leave to appeal to the Divisional Court from a decision of the Ontario Land Tribunal. The legislation establishing the Tribunal provides for a right of appeal to the Divisional Court only on a question of law and with leave of the court.[^1]
[2] The decision which the appellant seeks to challenge is an Official Plan Amendment and Rezoning approved by City of Ottawa in 2019 and upheld by the Tribunal on February 11, 2022.[^2] The amendments would permit the Respondents to seek building approval for uses including a warehouse and e-commerce centre on the subject lands which are adjacent to Highway 416 and Roger Stevens Drive within the boundaries of the Village of North Gower.[^3]
[3] It is important to understand the limited role for the court under the complex network of legislation that governs land use planning in Ontario. The Divisional Court is not responsible for land use planning or policy. The role of the court under the legislation is to ensure that the Tribunal has acted lawfully.
[4] The statutory appeal right is a narrow one. Firstly, the appeal must relate to a question of law. Secondly, an appeal is not automatic because it requires leave of the court. As established by the jurisprudence, the test for granting leave is itself twofold. There must be reason to doubt the correctness of the decision appealed from. Even if the decision appears incorrect, however, the matter must be of sufficient importance that it merits the attention of an appellate court.[^4]
[5] It is not the current practice of the Divisional Court to give reasons for granting or withholding leave to appeal.[^5] I have concluded that leave should not be granted in this instance because I am neither persuaded that the Tribunal erred in law nor that any such error is of sufficient importance to support an appeal.
[6] Although I decline to give detailed reasons, I do want to acknowledge the extensive submissions made by counsel and the concerns driving the opposition to this potential redevelopment. As such I feel it is useful to provide a brief background and a sketch of the issues.
Background
[7] Roger Stevens Drive runs roughly 50 kilometres between Rideau Road, near the village of Osgoode in the City of Ottawa, and Highway 15 in the Town of Smiths Falls. It is County Road 6 in Ottawa and County Road 4 in Lanark County. Significantly, approaching Ottawa from the south on Highway 416, Roger Stevens is the second exit after the highway crosses the city boundary (Exit 49). And Roger Stevens Drive is the major cross street in the village of North Gower.
[8] The name of the Drive and the nearby Stevens Creek commemorates Roger Stevens who was one of the first settlers in the area in the mid 18th Century. Apparently, Stevens was a Loyalist from Vermont and a British secret agent during the American Revolution. He was a settler, lumberman and entrepreneur who drowned in Stevens Creek in 1793 under somewhat mysterious circumstances.[^6] None of that has anything to with the matter before the court, but it gives a sense of the history and character of the area.
[9] North Gower is one of the historic rural villages that became part of Ottawa during the municipal amalgamation of 2001. Prior to that the village was located in Rideau Township[^7] which explains the name of the applicant, Rideau Action Group Inc. North Gower is found at the south end of Prince of Wales Avenue where it intersects with Fourth Line Road. Fourth Line is the main street of the village and Roger Stevens intersects it at the only traffic lights.
[10] For the purpose of this application, the important feature of Roger Stevens Drive is the interchange providing access to Highway 416. The application in question was brought on behalf of the owner of the land next to the highway and south of the exit ramp. The highway is approximately three kilometres from the traffic lights in the centre of the village.
[11] The subject lands are part of the North Gower Secondary Plan, which is one of the secondary plans developed for rural villages in the amalgamated city. As part of its overall planning objectives, Ottawa has a policy to protect the rural nature of villages and preserve their historical character. It is not a policy to freeze the villages in time or prohibit growth or development, but to ensure that development does not overwhelm the nature and character of the village. As with most planning decisions, there can be differing views about the right balance between economic development and preservation of existing character. The Rideau Action Group was formed by a group of concerned citizens who are anxious to preserve the character of North Gower and oppose the possible construction of what they categorize as a giant warehouse operation on the outskirts of the village.[^8]
[12] The respondents are corporations related to Broccolini Inc., which is a development and construction company. Brocollini is well known in Ottawa for, amongst other things, building warehouses and sorting centres for Amazon. Brocollini has recently constructed two enormous facilities for Amazon, one at the Boundary Road exit of Highway 417 on the east side of the City and the other near the Fallowfield exit of Highway 416 in Barrhaven to the north of the subject lands.
[13] As mentioned, the Respondents are the proponents of a rezoning application (By-law Amendment No 2019-443) (“the ZBLA”) and application to amend the Official Plan (Official Plan Amendment No. 239) (“the “OPA”). The ostensible reason for the applications was to make it possible for the respondents to construct a warehouse and e-commerce facility on the site although that specific proposal was not before the Tribunal. A specific application for building approval would be accompanied by a proposed site plan and the respondents have yet to make such an application.[^9]
[14] The site itself is approximately 46 hectares or 114 acres. The highway abuts the land to the east and to the west there is a string of ten residential lots along Third Line Road South. Other than those residential lots, the surrounding lands are primarily agricultural. The property itself was at one time a farm. Part of the property is within a flood plain.
[15] Prior to the rezoning, most of the site was already approved for redevelopment for commercial and industrial purposes. There was an industrial and commercial subdivision (“the Jordel Acres subdivision”) approved by the City in 2003, but never completed. Prior to the present application, the eastern portion of the site was designated “highway commercial” in the Official Plan and was zoned “RC – Rural Commercial”. The western portion of the land was designated “Industrial” in the OP and zoned “RG- Rural General Industrial”. There was however a portion between the two, referred to at the hearing as the “hole in the donut” which was zoned “Rural Commercial Exception 55”. While a warehouse was already a permitted use under both the RC and RG zoning, it was not permissible under Exception 55. The purpose of the application was to eliminate the hole in the donut so that a warehouse would be permissible on the entire site.[^10]
[16] As noted above, the Respondents made the applications for amendment of the OP and rezoning some time ago. Despite local opposition by the appellants, the city approved the changes in 2019. The Appellant then took the matter to the Tribunal which upheld the City’s planning decisions. The Tribunal concluded that “based on the location and characteristics of the site, the mitigation measures and improved performance standards built into the ZBLA, and the ability to further mitigate potential impacts at the site plan phase of development, the Tribunal is of the view that the proposed amendments ensure any future development will exist together in harmony with both the broader Village and the nearby residences”.
[17] The Tribunal “was not persuaded that the instruments before it effected major and undesirable changes for the Village of North Gower and accepts the submissions of the Applicant and the City that the OPA and ZBLA satisfy all requisite legislative tests and are representative of good planning in the public interest.” The Tribunal found nothing in the Provincial Policy Statement, Official Plan or Matters of Provincial Interest which warranted interference with the decision of City Council.[^11]
The issues
[18] The question for this court is not whether or not I agree with the merits of the planning and development decision made by the City and upheld by the Tribunal. The question is whether the Tribunal appears to have erred in law in a manner that is significant enough to justify a hearing before a panel of the Divisional Court.
[19] The Applicant identifies a number of issues which it characterizes as errors of law. They are as follows:
a) The Tribunal gave insufficient reasons
b) The Tribunal failed to properly interpret and apply the City of Ottawa’s Official Plan
c) The Tribunal failed to consider relevant evidence regarding floodplain designations and/or mappings.
d) The Tribunal failed to consider relevant evidence regarding worst-case scenarios.
e) The Tribunal failed to require proper disclosure.
f) The Tribunal fettered its discretion by deferring certain matters to Site Plan Approval.
[20] With the exception of point b) which alleges that the Tribunal’s interpretation of the Official Plan is incorrect and perhaps point f) which alleges that it is unlawful to defer certain issues to the site plan approval process, all of these other points are procedural, evidentiary or due process arguments. It is the case that significant procedural errors such as lack of due process, incorrect evidentiary rulings or findings of fact that are not supported by evidence can constitute errors of law, but generally that requires a finding that the procedural ruling was based on an incorrect legal principle. If it is possible to identify such an extricable question of law, then the Court may proceed to consider if leave should be granted.
[21] I start by observing that a tribunal hearing is not a criminal trial and the issues to be determined are not the individual civil or property rights of the citizens who oppose the decision in question. The Ontario Land Tribunal is charged pursuant to the Planning Act with determining if there is a “land use planning ground” to overturn the planning decision made by the municipality.[^12] Individuals or entities who made submissions to the municipal council at the time of the original decision have a right to be heard on the matter before the Tribunal, but the right to be heard is directed to the question the Tribunal must decide. In conducting its hearings, the Tribunal has a great deal of latitude in determining what procedure to adopt and what evidence it considers important.[^13]
[22] I acknowledge that exercise of delegated public powers by administrative tribunals demands that administrative decision makers function in a “culture of justification” so that their decisions can be “justified to citizens in terms of rationality and fairness”.[^14] This is the overarching principle for all forms of judicial review as described by the Supreme Court of Canada in Vavilov and cases subsequent to it. Where, as here, the legislature provides for a specific right of appeal, the legislature has subjected the “administrative regime to appellate oversight” on an appellate standard.[^15] That standard is the much-repeated formula enunciated by the Supreme Court in Housen v. Nikolaisen.[^16]
[23] Specifically, this means that the standard of review on an extricable question of law is “correctness”. In the matter before me, of course, an appeal is only available on a question of law and then it is available only with leave. I must be persuaded that the proposed appeal relates to a question of law, that the Tribunal appears to be in error and that the matter is of sufficient importance that an appeal should be allowed. The latter does not mean it is important just to the appellant. If it was not important, the appellant would not be appealing. To be sufficiently important to grant leave, it is the importance of correcting the error which must be considered. If it involves an important legal principle or one of universal application, the necessity of correcting the error of law will be more apparent and will support the granting of leave. If the error is a minor one or of only limited and individual significance, it may not.[^17]
[24] I do not agree that the Tribunal erred in law or denied the appellants due process in conducting the hearing. In any event, the question of spot rezoning and spot amendment to the Official Plan to remove the anomalous “hole in the donut” is of specific and local importance. It is not an important point of law which requires appellate review.
Conclusion
[25] In conclusion, leave to appeal is denied. If the parties have not made an agreement in respect of costs and if the responding party seeks costs, I may be spoken to.
Justice C. MacLeod
Date: July 18, 2022
CITATION: Rideau Action Group Inc. v. Ottawa (City) et. al., 2022 ONSC 4219
COURT FILE NO.: DC-22-2696
DATE: 2022/07/05
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: RIDEAU ACTION GROUP INC., Appellant
AND:
CITY OF OTTAWA, ROGER STEVENS LP and ROGER STEVENS COLNVEST LP, Respondents
BEFORE: Regional Senior Justice
COUNSEL: Eric K. Gillespie & Burgandy Dunn for the Appellant
Michael S. Polowin & Michelle Cicchino, for the Roger Stevens Respondents
Garett Schromm for City of Ottawa
HEARD: June 15, 2022
DECISION ON LEAVE TO APPEAL
Released: July 18, 2022
[^1]: S. 24 Ontario Land Tribunal Act 2021, S.O. 2021, c.4, Sched. 6, This is not a new provision. The same wording was found in s. 96 (1) of the Ontario Municipal Board Act, RSO 1990, c. O.8
[^2]: Decision reported at 2022 CarswellOnt 1761; 2022 9907
[^3]: Locally pronounced “North Gore”
[^4]: Avery v Pointes Protection Association, 2016 ONSC 6463
[^5]: See Westhavar Boutique Residences Inc. v. Toronto, 2020 ONSC 3949 and County of Wellington v. Municipal Property Assessment Corporation Region No 22, 2022 ONSC 1458
[^6]: Lindsay, Coral, Kars on the Rideau, 2nd Edition, 2010 Rideau Township Historical Society, @ pp 20 - 21
[^7]: Rideau Township existed between 1974 and 2001. It was an amalgamation of the original 18th Century townships of Marlborough and North Gower.
[^8]: Named after Rideau Township. The similarity in name with the Rideau Transit Group at the centre of controversy over the city’s LRT system is an unfortunate coincidence.
[^9]: This is one of the grounds of appeal.
[^10]: It appears that the “hole in the donut” was part of “the Jordel Acres subdivision”, Plan 4M-1191 and was the site of the original farmstead and barn. In approving the application, the City recited that the purpose of the amendment was “to permit a distribution warehouse facility that will serve the local and regional economies.”
[^11]: Decision of the OLT and specifically paras 102, 127, and 128 - 131
[^12]: See Planning Act, RSO 1990, c. P.13 as amended to April 13, 2022
[^13]: S. 12 of the Ontario Land Tribunal Act, particularly subsection (2) and the provisions of the Statutory Powers Procedure Act, RSO 1990, c. S.22, in particular ss. 23 & 25.0.1
[^14]: Canada (Minster of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; [2019] 4 SCR 653 @ para. 14
[^15]: Vavilov, supra @ para. 37
[^16]: 2002 SCC 33; [2002] 2 S.C.R. 235
[^17]: The Legislative Assembly of Ontario v. Avenue-Yorkville Developments Ltd, 2011 ONSC 258 (Div. Ct.) @ para 37 and see Snowden v. The Corporation of the Township of Ashfield-Colborne-Wawanosh, 2017 ONSC 6777