Court File and Parties

COURT FILE NO.: 18-344 DATE: 2019 01 07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dr. Hugh Whiteley and Vincent Hanson, Applicants and: The Corporation of the City of Guelph, Respondent

BEFORE: Justice G.D. Lemon

COUNSEL: Eric K. Gillespie and Kathleen Coulter, Counsel for the Applicants Darrell Mast and Jeffrey Aitkens, Counsel for the Respondent

HEARD: November 22, 2018

Endorsement

The Issue

[1] Dr. Whitely and Mr. Hanson have made an application for judicial review of Guelph’s decision to replace a one-lane, load-restricted heritage bridge on Niska Road with a two-lane, highway standard bridge. They submit that this decision is in contravention of section 24 of the Planning Act. Specifically, they seek:

a. An order granting leave for this application to be made to the Superior Court of Justice;

b. A declaration that the City’s current actions (which allow improvements to Niska Road without the necessary traffic calming controls on traffic volume and allow higher volumes of traffic on Niska Road than otherwise permitted by the Official Plan) contravene section 24 of the Act; and

c. A stay of those actions that are found to be in contravention of section 24 of the Act.

[2] The parties confirmed that although cross-examinations had not occurred, they were prepared to proceed on the written record only. Both sides agreed that I need not make any findings of credibility.

[3] Such an application should normally be brought to the Divisional Court pursuant to section 6.1 and 6.2 of the Judicial Review Procedure Act. However, the application may be made to a single judge of the Superior Court of Justice with leave of that court. In its factum, the City of Guelph “recognizes that it is desirable to have this matter resolved expeditiously and at minimal cost to the city, its residents and the Applicants, and is prepared to consent to the requested order.” Given that joint request, I was satisfied that leave should be granted. I agreed to hear the application as a single judge of the Superior Court of Justice rather than transfer it to the Divisional Court.

Background

[4] Niska Road is a two-lane collector road within the Kortright Hills neighbourhood in the southwest quadrant of Guelph. The bridge in issue was a one-lane structure over the Speed River, which, the applicants submit, provided traffic calming and maintained the serenity of the surrounding conservation area. It required drivers to come to a stop if an approaching vehicle got to the bridge first; local residents thought that this felt like a courteous country tradition. The bridge remained in use until the City closed it for safety reasons in 2017. It was then removed by the Canadian Armed Forces in a military exercise.

[5] Guelph is subject to the Planning Act, which requires that public works conform with the Official Plan. Section 24 of the Act is as follows:

Public works and by-laws to conform with plan

24 (1) Despite any other general or special Act, where an official plan is in effect, no public work shall be undertaken and except as provided in subsections (2) and (4), no by-law shall be passed for any purpose that does not conform therewith.

[6] Guelph’s Official Plan was adopted by Council on November 1, 1994, and has been comprehensively updated through Official Plan Amendment (“OPA”) 39, OPA 42, and OPA 48. Schedule 5 of the Official Plan identified Niska Road as a “collector road.”

[7] Section 5.6.5. of the Official Plan provides that, “Where necessary, traffic calming measures shall be incorporated into the design of the street network in accordance with Guelph’s Neighbourhood Traffic Management Policy, or successor thereto.”

[8] On January 24, 2006, Guelph adopted a Neighbourhood Traffic Management Policy. Niska Road is identified as a two-lane collector road in the Neighbourhood Traffic Policy.

[9] In April 2013, Guelph initiated a Class B Environmental Assessment for Improvements to Niska Road, with the expressed intent of replacing the existing bridge with a two-lane bridge.

[10] At a 2013 public information meeting, Guelph gave a presentation on its plan for Niska Road, maintaining that traffic increase would be minimal, even with a two-lane bridge.

[11] In 2013, Guelph created a Community Working Group to advise Guelph on the Environmental Assessment related to improvements to Niska Road and the bridge.

[12] The working group was tasked with considering alternative options for improvements to Niska Road, including doing nothing, repairing the bridge, closing the bridge and repurposing it as a one-lane pedestrian bridge, replacing the bridge with a one-lane bridge, and replacing the bridge with a two-lane bridge.

[13] The Environmental Assessment was changed to a more comprehensive Class C Environmental Assessment in October of 2013.

[14] In October 2013, a traffic study conducted by Guelph found the total traffic volume on the eastern end of Niska Road to be 3900 vehicles/day, and the total traffic volume at the bridge to be 4600 vehicles/day.

[15] In December 2013, in response to a public information meeting, the working group conducted a door-to-door random survey of residents in Kortright Hills and Woodland Glen, the area surrounding Niska Road. Overall, the working group found that 95% of the 320 respondents preferred a one-lane bridge on Niska Road versus a two-lane bridge. Respondents expressed concerns primarily with the impact to the surrounding conservation area and the impact to residents’ safety, due in part to excessive traffic volumes.

[16] According to the results of a June 2014 survey by Guelph of vehicle origin and destination, the estimated volume of external through traffic at the eastern end of Niska Road was 2500 vehicles/day in October 2013 and the estimated volume at the bridge was 3800 vehicles/day. The Neighbourhood Traffic Policy sets an upper limit of 600 vehicles/day of external through traffic for two-lane collectors in residential neighbourhoods, as part of the total traffic limit of 2000 vehicles/day.

[17] In spite of these findings, the applicants submit that the Environmental Assessment did not address excessive traffic volumes on Niska Road, examine traffic calming measures, or consider the effectiveness of alternatives to the proposed two-lane bridge in reducing traffic volumes.

[18] At a summer 2014 meeting, Guelph city staff informed resident members that replacing the bridge with a two-lane bridge was the “preliminary preferred alternative option.” Guelph later presented this option as the preferred alternative at a public information centre meeting in November 2014, even though the majority of the working group members did not agree.

[19] On December 3, 2015, Guelph City Council voted in favour of city staff’s recommendation for improvements to Niska Road, including a new two-lane bridge. The applicants and many others attended and provided their views both for and against the proposal.

[20] The Environmental Assessment was completed in February 2016 and recommended the replacement of the one-lane bridge on Niska Road with a two-lane bridge. Guelph projects that, with the new bridge, traffic on Niska Road will increase to more than 8000 vehicles/day.

[21] On February 13, 2017, Guelph closed the one-lane bridge.

[22] On March 20, 2017, Guelph received confirmation from the Minister of the Environment that the project could proceed. That approval was subject to some conditions not in issue here.

[23] In March 2018, Guelph announced that it was starting improvements to Niska Road, with bridge construction expected to start in August. Construction on the new Niska Road bridge began in September 2018. That construction was continued to the date of hearing and, I presume, carries on now. I am not aware of any motion to enjoin Guelph from the work.

Positions of the Parties

[24] The applicants rely upon s. 24(1) of the Planning Act and submit that this public work should not be undertaken and the by-law should not have been passed because Guelph has failed to conform with ss. 5.6.5 and 5.12.1 of its own Official Plan.

[25] The applicants also submit that Guelph has failed to list the Niska Road Improvement Project in the Official Plan.

[26] Thirdly, the applicants submit that Guelph has failed to adequately study the social and economic impacts of the project on local residents.

[27] It is the applicants’ submission that, simply put, Guelph has not followed its own Official Plan and Neighbourhood Traffic Policy procedures and must therefore start afresh.

[28] The applicants also submit that Guelph has demonstrated bad faith throughout the development and Environmental Assessment processes, including

(a) Guelph’s failure to acknowledge and address the existing traffic volumes and status of Niska Road;

(b) Guelph’s failure to acknowledge and address the need to reclassify that status through the proper planning process if Niska Road is to be redeveloped to allow for greater traffic volumes;

(c) Guelph’s failure to disclose the pre-existing condition of an excessive volume of through traffic on Niska Road, which already required remedial calming measures.

[29] In response, Guelph submits that the Neighbourhood Traffic Policy is not engaged because there has been no initial complaint made by a resident to start a review under that Policy.

[30] Guelph also submits that it has already carried out an Environmental Assessment and extensive community consultation; further proceedings are unnecessary.

[31] In any event, Guelph submits that the Ministry of Environment has already approved the project and any objection is a collateral attack on the Minister’s decision.

Analysis

Standard of Review

[32] The applicants submit that the standard of review of the decision is correctness; Guelph submits that the standard is reasonableness.

[33] In Sorensen v. The County of Frontenac, 2018 ONSC 3912, Myers J. said at para. 5:

Not every municipal decision is legislative in nature. However, where, as here, a municipality passes a bylaw in the exercise of a legislative function, the Supreme Court of Canada requires that courts adopt a deferential, reasonableness standard of review. In Nanaimo (City) v Rascal Trucking Ltd, 2000 SCC 13, [2000] 1 SCR 342 at para 36, the Court held:

Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the "benevolent construction" ... Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives.

[34] In my view, the standard of review in this case is that of reasonableness. This is an example of Guelph applying its own policies to a given set of facts. City Council had to consider facts and policies that cannot be easily separated. Beside the factors set out in argument here, there would have been a host of other factors in the consideration – not the least of which would be finances – of which I do not have an admissible record.

Provisions of the Official Plan

[35] I start with the relevant provisions in issue. Section 5.6.5 of the Official Plan reads:

An efficient road network will accommodate all modes of travel including vehicular traffic at a reasonable level of service.

5. Where necessary, traffic calming measures shall be incorporated into the design of the street network in accordance with the City’s Neighbourhood Traffic Management Policy, or successor thereto.

[36] The applicants submit that for Guelph to be in compliance with the Official Plan, the street network, including the bridge, must comply with the Neighbourhood Traffic Policy.

Neighbourhood Traffic Management Policy

[37] The relevant portions of that Policy are as follows. I have highlighted the particular matters in issue.

Purpose

This policy document outlines procedures for initiating, reviewing and implementing neighbourhood traffic management plans in residential neighbourhoods to address traffic safety concerns related to speeding and high volumes associated with traffic short-cutting through residential neighbourhoods. This policy shall apply to local and two-lane collector roadways located within primarily residential neighbourhoods.

Goals

In an effort to address traffic concerns in neighbourhoods, the Neighbourhood Traffic Management policy shall address the following goals:

• Improve public safety.

• Encourage roadways to function as intended

• Improve Liveability of neighbourhoods.

Objectives

• Reduce excessive vehicle speeds.

• Discourage short-cutting traffic.

• Minimize conflicts between road users.

Process for Addressing Neighbourhood Traffic Concerns

Residents who have a traffic-related concern within their neighbourhood will submit in writing their request for a traffic review to the Traffic Services Division. The request, initiated by an individual or group of residents, may specify one or several residential local or two-lane collector roadways within a neighbourhood. Staff will deal with requests on a first-come-first-serve basis.

Traffic Services will analyse traffic patterns on affected streets to determine the extent and nature of the problem. Volumes, speeds and classification of vehicles will be collected through the use of automatic traffic counters for a minimum 48 hours. License plate studies will be conducted to measure short-cutting traffic. All studies will be conducted based upon established Engineering practices.

Based on the results of the data collection and analysis, a traffic review will continue if one of the following criteria is met:

Neighbourhood Traffic Review Criteria: ____________________________

Road Speed Short- Volume Classification Cutting Traffic

Local 85 th Infiltrating > 900 Initiate Roadway If percentile OR traffic AND vehicles Traffic ≥ 55 exceeds per day Review km/hr 30%

Two-lane 85 th Infiltrating >2000 Initiate Collector If percentile OR traffic AND vehicles Traffic Roadway ≥ 60 exceeds per day Review km/hr 30%

Roadways meeting the above criteria qualify for a traffic review. Where staff has identified potential negative impacts to adjacent roadways within the neighbourhood, these roadways will be included in the review and considered affected streets regardless of whether they meet the minimum criteria. The applicant will be notified, either verbally or in writing, the results of the traffic analysis and if their request advances to the next phase. For roadways not meeting the above criteria, the process is terminated and the applicant is advised in writing with copies sent to the specific ward Councillors.

If a street fails to meet the required criteria for a neighbourhood traffic review, that street will not be considered for another review for a period of 24 months.

Should the criteria be met as outlined in Section 4.2, the applicant is required to circulate a Neighbourhood Traffic Review Request Petition (Appendix F) to the affected streets, as identified by staff, to determine if there is resident support to proceed with a traffic review. Signatures from a minimum of 60% of the residents on affected streets must be obtained. Of those, 60% must be in support of the request in order to initiate a formal traffic review. This is based on one signature per household. For roadways not meeting the above criteria, the process is terminated and the applicant is advised in writing with copies sent to the specific ward Councillors.

Staff will develop plan alternatives based on resident input.

The draft plan will be presented in a staff report to City Council for their consideration/approval. This will include a presentation of the plan and will include comments on plan feasibility, impacts, implementation costs, timing and opinions of Guelph and emergency services and area residents.

Residents of the study area will be notified in writing a minimum of two (2) weeks prior to the Council meeting date. Public notice will also be posted in the Guelph Tribune City Page and on Guelph’s web page.

Upon approval of the proposed Neighbourhood Traffic Management Plan by City Council, staff will proceed with preparing designs, scheduling and staging implementation of the approved traffic calming measures. Installation will be implemented in a timely manner based on available funding. Where limited funds are available, implementation of traffic calming measures will be phased in.

Conformity to the Official Plan

[38] Both parties agree that Niska Road is properly classified as a two-lane collector road.

[39] They also agree that I am to apply the Official Plan as it is now written. In SOS- Save Our St. Clair Inc. v. Toronto (City), [2006] 264 D.L.R. (4th) 303, 208 O.A.C. 211 (Div. Ct.), the Divisional Court clarified:

[36] When this application for judicial review was first brought, there was an important issue as to which Official Plan governed. Since the earlier hearing, the OMB has issued its decision approving the transportation policies in the New OP, ordering that those policies take effect and the earlier transportation policies be repealed. Section 24(1) of the Planning Act requires that a public work be in conformity with the Official Plan when it is undertaken. The language of the subsection suggests that the plan to be considered is the one in effect at the time that the project is undertaken, since s. 24(3) permits preliminary work on the public work before the plan comes into effect. In this case, therefore, conformity is to determined by considering the transportation policies of the New OP, which are now in effect.

[40] In Bele Himmell Investments Ltd. v. Mississauga (City), [1982] O.J. No. 1200 (Div. Ct.), the Divisional Court said at para. 22:

Official Plans are not statutes and should not be construed as such. In growing communities such as Mississauga, Official Plans set out the present policy of the community concerning its future physical, social and economic development. In such a document there will almost inevitably be inconsistencies and uncertainties when considered in light of a specific proposal. It is the function of the Board in the course of considering whether to approve a by-law to make sure that it conforms with the Official Plan. In doing so, the Board should give to the Official Plan a broad liberal interpretation with a view to furthering its policy objectives.

[41] My first consideration is whether the Neighbourhood Traffic Policy is in play at all.

[42] The applicants hang their argument on a 2011 complaint to say that the entire process set out in the Policy should have been undertaken in view of this 2013 project. The applicants submit that the answer that closed that request was made by a “Traffic Technologist 1”. They submit that the process should have moved further up the management chain than that.

[43] Guelph submits that there was no request in writing for a traffic review to commence the process set out in the Policy. In my view, Guelph is not unreasonable in its interpretation of the facts and its policy.

[44] This complaint was considered, determined and closed by Guelph in November 2011. The individual who made the complaint did not follow up. That individual was not either of the applicants. There was no further request to move the Policy forward.

[45] Even if that were a valid concern, from the record provided, there is nothing done by Guelph that is significantly different than the Policy sets out. There were studies, there was input, and there were information meetings. Residents put their views forward - both for and against the plan.

[46] The applicants’ greatest concern is the effect that the bridge will have on traffic in their neighbourhood. That concern was clearly before council. Council decided to go in a different direction than the applicants would prefer. However, it is to be noted that a minority of the working group was not opposed and Guelph’s Municipal Heritage Committee and the Minister of the Environment approved of the plan.

Failure to Consult with the County

[47] To understand this complaint, some geography may assist.

[48] Niska Road extends westward from its intersection with Downey Road, 350 meters southwest of the Hanlon Expressway, to the Guelph boundary at the high-water mark on the west bank of the Speed River. West of the Speed River, Niska Road continues into Puslinch Township for 700 meters to an intersection with Whitelaw Road.

[49] The applicants point to s. 5.12.1 of the Official Plan, which reads:

The City’s road network is integrated into the Provincial Highway system and tied into the County/Township transportation network. Provincial Highways 6 and 7 are both major routes to and through the City while Wellington Road 124 is an important regional connection.

1. The City will work with Wellington County, the Region of Waterloo, the Region of Halton and the Provincial and Federal Governments, as appropriate, to co-ordinate transportation infrastructure planning and implementation within the City and surrounding areas. This coordination will include participation in Environmental Assessment processes and undertaking joint transportation planning studies. [Italics original.]

[50] The applicants submit that Guelph is acting contrary to the Official Plan since it failed to co-ordinate with the neighbouring authorities before commencing this project.

[51] In response, Guelph submits that this section is to be interpreted to mean that there is no requirement to cooperate but that cooperation is promoted “as appropriate”.

[52] I am not in a position to determine what is “appropriate” in terms of this project. The record does not give me a factual basis to make such a finding. Taking Bele Himmell into consideration, I have no reason to reject Guelph’s interpretation. I do not find Guelph to be in breach of the Official Plan.

Fail to List the Improvement in the Official Plan

[53] The applicants’ next argument also refers to Section 5.12.

[54] Section 5.12.2 sets out that:

2. Schedule 5 identifies future transportation projects identified through Environmental Assessments and council approved studies. Development in proximity to these proposed improvements will be designed and integrated such that it does not preclude or negatively affect the proposed transportation network improvement. [Italics original.]

[55] The applicants submit that the Niska Road project is not listed in Schedule 5 and therefore Guelph is in breach.

[56] I agree with Guelph that such a reading of the Plan would require amendments to the Official Plan every time a project is considered. The applicants’ submission is a strict reading of the Official Plan that is contrary to the principles of Bele Himmell. Therefore, I cannot find that the City’s interpretation is unreasonable.

[57] There is nothing in this record that would suggest that a different result would occur if Guelph were ordered to start the process over. Indeed, the process that the applicants wish still allows for council to approve or disapprove. Even with approval, any plan is subject to the qualification “where limited funds are available.”

[58] I find that Guelph was not unreasonable in following the process it did to come to the decision it made.

Bad Faith

[59] I reject the applicants’ submission that Guelph acted in bad faith. The record does not support that proposition. There was no cross-examination of Guelph’s representative. There was no submission that I should make a finding of credibility, let alone bad faith. I cannot determine Guelph City Council’s intent from this material.

Ministry of Environment/ Collateral Attack

[60] The applicants deny that they are making a collateral attack on the decision of the Minister of Environment to approve the project. Given my findings above, this issue is moot; I need not deal with it.

Result

[61] Both parties relied upon para. 55 of SOS:

It is not for this Court to inquire into the issue whether the Project is good planning or bad planning or somewhere in between. Those are political decisions made by elected members of City Council. The Court’s duty is confined to ensuring that the process was carried out according to the rule of law.

[62] Guelph submits that this is a planning decision and I should not interfere. Dr. Whitely and Mr. Hanson submit that the process was not carried out according to the rule of law and it should be set aside. For the reasons set out above, I cannot find that Guelph was unreasonable in its process. Their decision appears to be “within the range of possible, acceptable outcomes that are defensible in respect of the facts and the law.”

[63] Accordingly, the application is dismissed.

Costs

[64] If the parties cannot agree upon costs, written submissions shall be made to me. Guelph’s submissions shall be made within 15 days of this order, and the applicants shall provide their responding material within 15 days thereafter. Any reply submissions shall be provided within 15 days after the responding materials. All submissions shall be no more than three pages, not including any bills of costs or offers to settle. All submissions shall be forwarded to me at my office in Guelph at Ontario Superior Court, 74 Woolwich St., Guelph, ON, N1H 3T9.

Justice G.D. Lemon Date: January 7, 2019

Released: January 7, 2019 Lemon, J