COURT FILE NO.: CV-11-436434
DATE: 20120306
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CITY OF TORONTO, Applicant
AND:
1095909 ONTARIO LIMITED, Respondent
BEFORE: T. McEwen J.
COUNSEL:
R. Andrew Biggart , for the Applicant
Mark Flowers , for the Respondent
HEARD: December 12, 2011
ENDORSEMENT
[ 1 ] On May 31, 2010, the Respondent 1095909 Ontario Limited (“the Respondent”) filed an application to amend the Official Plan of the Applicant, the City of Toronto (“the City”). The amendment sought to change the land use designation of certain properties on Dupont Street (“the subject lands”) from “ employment areas ” to “ mixed use areas ”.
[ 2 ] City council did not approve the application.
[ 3 ] On June 1, 2011, pursuant to subsection 22(7) of the Planning Act , the Respondent appealed its Official Plan Amendment application to the Ontario Municipal Board (“the Board”) by filing a Notice of Appeal. In September, 2011 the Board set aside dates in November, 2011 for a pre-hearing conference or preliminary motion. On October 4, 2011, the City commenced this application before this Court.
[ 4 ] The City, pursuant to Rule 14.05(3)(d), seeks the following two determinations from this Court:
(a) a determination, pursuant to Rule 14.05(3)(d) of the Rules of Civil Procedure , that in accordance with Sections 22(7.1) and 22(7.3) of the Planning Act , there is no right of appeal to the Ontario Municipal Board from the refusal of City of Toronto Council to approve a private application to remove land from an area of employment (i.e. lands designated as “Employment Areas”) by way of an Official Plan Amendment to redesignate lands to a “Mixed Use Areas” designation which would permit residential development;
(b) a determination, pursuant to Rule 44.05(3)(d) of the Rules of Civil Procedure , that 1095909 Ontario Limited, as a result of Sections 22(7) and 22(7.3) of the Planning Act , possesses no right of appeal arising from the refusal of City of Toronto Council (“City Council) to approve 1095909 Ontario Limited’s proposed Mixed Use development that includes at least two (2) high-rise condominium residential developments upon lands that are designated as “Employment Areas” in the City of Toronto Official Plan;
[ 5 ] The application proceeded before me on December 12, 2011. At the hearing of the application, the issue of jurisdiction was raised and whether it would be preferable for the Superior Court to hear this application or whether the determination should be made by the Board. Upon the conclusion of oral argument, I provided the parties with an interim endorsement raising the following two questions:
In cases of concurrent jurisdiction, does the Superior Court have discretion to refer the issues raised in the Application to the OMB; and
If so, what has the Superior Court done in similar cases in the past, and what do the parties submit I should do in this case?
[ 6 ] The parties delivered written submissions to me which I have had an opportunity to review. For the reasons below, I dismiss the City’s application and decline to hear the matter. I have concluded that the Board does have the jurisdiction to determine the issue in question in this application and it is the more appropriate forum.
[ 7 ] In my view, ss. 34-36 of the Ontario Municipal Board Act (“ OMBA ”) provide the Board with broad powers which include the authority to hear and determine all questions of law and fact, including the authority to deal with all matters brought before it pursuant to the provisions of the OMBA . This has been affirmed by the Ontario Court of Appeal in Goldlist Properties Inc. v. Toronto (City) , 2003 50084 (ON CA) , 2003 CarswellOnt 3965, 232 D.L.R. (4 th ) 298 (C.A.).
[ 8 ] In order to determine the issue currently in dispute, regard must be had to the provisions of the Planning Act ; the legislative history of the applicable sections of the Planning Act , including relevant amendments and the reasoning behind the amendments; the Planning and Conservation Land Statute Law Amendment Act , 2006 (“Bill 51”); the overlap between the Planning Act and the City’s Official Plan; the Growth Plan for the Greater Golden Horseshoe, 2006; and excerpts from Hansard of public hearings concerning Bill 51. The City has also adduced expert evidence in support of its position.
[ 9 ] I agree with the Respondent that, although the matter is within the jurisdiction and competence of the Court, the Board has far more experience than the Court in interpreting Official Plans generally and the City of Toronto’s Official Plan in particular. This, in my view, would include the issue in question, i.e. the right of appeal of the Respondent, since it further requires an examination of issues within the Board’s specialized expertise. I am of the view that my conclusion is in keeping with decisions of this Court in Fabbian Homes Inc. v. Guelph (City) , 72 M.P.L.R. (4th) 314 (Sup. Ct. J.) ; Mahar v. Rogers Cablesystems Ltd. , 1995 7129 (ON SC) , [1998] 25 O.R. (3d) 690; and Ontario Hydro v. Kelly , 1998 14678 (ON SC) , [1998] 39 O.R. (3d) 107.
[ 10 ] Without deciding the central issue in the application, I dismiss it on the basis that the Board is more appropriate forum to determine the issue in question. The City asked that if I was to decline jurisdiction, that I order a stay of the proceedings. I decline to do so on the basis that any appeal from the Board would be to the Divisional Court. As such the appropriate disposition is to dismiss the application as opposed to ordering a stay of proceedings.
[ 11 ] If the parties cannot agree with respect to the issue of costs, written submissions can be made to me, not to exceed three pages in length. The Respondent is to deliver its submissions within three weeks’ time. The City will have two weeks thereafter to respond and the Respondent, one week thereafter to reply.
T. McEwen J.
Date: March 6, 2012