Central Ontario Coalition Concerning Hydro Transmission Systems et al. v. Hydro et al., (1984) 4 O.A.C. 249 (DC)

• Judge: Van Camp, Reid and Krever, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: June 25, 1984
• Jurisdiction: Ontario
• Citations: (1984), 4 O.A.C. 249 (DC)

Central Ont. Coalition v. Hydro (1984), 4 O.A.C. 249 (DC)

MLB headnote and full text

Central Ontario Coalition Concerning Hydro Transmission Systems, City of Kitchener, City of Cambridge, Regional Municipality of Waterloo, County of Oxford, Kennedy (et al., on their own behalf and on behalf of all other members of the) Southern Specialty Crop Committee v. Ontario Hydro, Ministry of the Environment, Niagara Escarpment Commission, Corporation of the County of Huron/Huron County Planning Board, Ontario Municipal Electric Association, Foodland Hydro Committee, Energy Probe, Ministry of Agriculture and Food, Ministry of Energy, Zorra Grave Pit Owner And Operators Association and Joint Board (respondents) and Energy Probe (intervenor)

Indexed As: Central Ontario Coalition Concerning Hydro Transmission Systems et al. v. Hydro et al.

Ontario Divisional Court

Van Camp, Reid and Krever, JJ.

June 25, 1984.

Summary:

Ontario Hydro needed to relieve a bottleneck of electric power at the Bruce Nuclear Power Development on Lake Huron by constructing transmission lines from there to places to the south and east. It developed six alternate proposals for submission to a Joint Board under the Consolidated Hearings Act for approval. The Board ordered a notice to be published describing the areas potentially affected as "South Western Ontario", a vague term, which proved to be a misnomer. None of the proposals included a route along the Highway 401 corridor. As a result of the misdescription of the areas potentially affected, many people failed to realize their properties might be affected and did not participate in the extensive information program carried out by Ontario Hydro or the lengthy hearings before the Joint Board. The Joint Board adopted a modified version of one of the proposals, changing it to include a route along the 401 corridor. Subsequently, land owners belatedly learned that they were in affected areas and several municipalities on the 401, which had believed themselves unaffected and did not participate, learned of the 401 corridor route. Despite pleas by Ontario Hydro and the Government, the Joint board refused to reopen the hearings to give the newcoming affected people and municipalities a hearing, agreeing only to entertain applications for leave to adduce evidence. The affected parties applied for judicial review of the Board's decision selecting the modified proposal.

The Ontario Divisional Court allowed the application and quashed the Board's decision. The court held that the notice was inadequate to notify affected people that their interests might be affected and constituted both a breach of statutory requirements and a failure to natural justice going to the Board's jurisdiction. Further, the adoption of a 401 corridor route, where one was not in any of the proposals and no notice that such was possible was given, followed by a refusal to reopen the hearing constituted a failure of natural justice by depriving affected parties of an effective hearing.

Administrative Law - Topic 2442

Natural justice - Procedure - Notice - When required - Proceedings leading to expropriation - The Ontario Divisional Court held that notice must be given to affected people, including land owners, of an application by Ontario Hydro for approval of a proposal of an electric power transmission system from one part of Ontario to another, which would lead to the expropriation of property and the affecting of other interests - See paragraphs 17 to 66.

Administrative Law - Topic 2442

Natural justice - Procedure - Notice - When required - A Joint Board approved an Ontario Hydro proposal for an electric power transmission system with a modification to include a route along the Highway 401 corridor, a route which had not been proposed and of which interested parties had no notice - The Ontario Divisional Court held that, because affected parties had no notice of the possibility of the 401 corridor route, the hearing should have been reopened to permit their participation - See paragraphs 87 to 101.

Administrative Law - Topic 2444

Natural justice - Procedure - Notice - Contents and sufficiency of notice - A notice issued by a Joint Board on an Ontario Hydro application for approval of one of six proposals for electric power transmission routes described the affected areas vaguely and inaccurately as "South Western Ontario" - Many people in affected areas did not consider that they lived in South Western Ontario and did not respond to the notice - The Ontario Divisional Court held that the notice was inadequate, because it did not adequately inform affected people of the geographical scope of the proposals, which could easily have been done by maps or other techniques - The court applied the test of whether a reasonable person would have understood the notice and ruled that evidence of what people actually understood from it was irrelevant and unnecessary - See paragraphs 70 to 79 - The court held that statutory notice requirements respecting potential expropriation proceedings are construed strictly against the expropriating authority - See paragraph 61.

Administrative Law - Topic 6172

Judicial review - Statutory appeals - Grounds - Procedural error going to jurisdiction - A Joint Board gave an inadequate notice of an Ontario Hydro application for approval of one of six proposals for electric power transmission routes - The Ontario Divisional Court held that adequate notice was fundamental to establishment of the Board's jurisdiction, so that failure to give adequate notice was a jurisdictional error vitiating the Board's decision - See paragraph 68 - The court held further that the failure to give adequate notice was a failure of natural justice, which was also a jurisdictional error - See paragraph 69.

Cases Noticed:

Metcalfe Realty Co. Ltd. v. Ottawa - Carleton (1975), 7 L.C.R. 48 (Div. C.), appld. [para. 61].

Re Jurgenson and City of Hamilton, [1968] 2 O.R. 659 (C.A.), appld. [para. 61].

Re Jakoyljevic et al. v. Town of Oakville (1974), 7 L.C.R. 380 (Div. C.), appld. [para. 61].

Costello et al. v. City of Calgary (1983), 46 N.R. 54; 41 A.R. 318; 143 D.L.R.(3d) 385 (S.C.C.), appld. [para. 61].

Wiswell et al. v. Metropolitan Corporation of Greater Winnipeg (1965), 51 D.L.R.(2d) 754 (S.C.C.), appld. [para. 61].

Urban Housing Co. Ltd. v. Mayor, Alderman & Citizens of City of Oxford, [1939] 4 All E.R. 211; [1940] Ch. 70; 109 L.J. Ch. 38, appld. [para. 62].

Forest v. La Caisse Populaire de Saint-Boniface Credit Union Society Ltd. (1963), 37 D.L.R.(2d) 440; 41 W.W.R.(N.S.) 448 (Man. C.A.), appld. [para. 62].

Samejima v. R., [1932] S.C.R. 640, appld. [para. 62].

Sen v. Discipline Committee of College of Physicians & Surgeons of Sask. (1969), 69 W.W.R.(N.S.) 201 (C.A.), consd. [para. 62].

R. v. Ont. Racing Commn., ex p. Morrissey, [1970] 1 O.R. 458; 8 D.L.R.(3d) 624, consd. [para. 62].

Re Robertson and Scott (1973), 35 D.L.R.(3d) 451, consd. [para. 62].

Wilson et al. v. Secretary of State for the Environment et al., [1973] 1 W.L.R. 1083, 1092, consd. [para. 62].

Re Orangeville Highlands Ltd. & Twp. of Mono (1975), 5 O.R.(2d) 266; 8 O.R.(2d) 97, consd. [para. 62].

Re Seven-Eleven Taxi Co. Ltd. and City of Brampton et al. (1975), 10 O.R.(2d) 677 (Div. C.), appld. [para. 64].

Re Aamco Automatic Transmissions Inc. et al. and Simpson et al. (1981), 29 O.R.(2d) 565 (Div. C.), appld. [para. 64].

R. v. Ontario Racing Commission, Ex p. Taylor (1970), 15 D.L.R.(2d) 430 (O.C.A.), appld. [para. 66].

Re Toronto Newspaper Guild v. Globe Printing Co., [1953] 2 S.C.R. 18, appld. [para. 69].

Campbell v. City of Regina (1966), 58 D.L.R.(2d) 715 (Man. C.A.), appld. [para. 71].

Wilson v. Secretary of State for the Environment, [1973] 1 W.L.R. 1083, appld. [para. 71].

R. v. Ontario Racing Commission, ex p. Taylor, [1971] 1 O.R. 400 (C.A.), appld. [para. 71].

Re Hughes Boat Works Inc. and International Union, United Automobile, Aerospace, Agricultural and Implement Workers of America (UAW), Local 1620 et al. (1979), 26 O.R.(2d) 420, refd to. [para. 103].

Re Tandy Electronics Ltd. and United Steelworkers of America et al. (1980), 30 O.R.(2d) 29, refd to. [para. 103].

Statutes Noticed:

Consolidated Hearings Act, S.O. 1981, c. 20, sect. 7(2) [para. 59]; sect. 8(1) [para. 58].

Statutory Powers Procedure Act, R.S.O. 1980, c. 484, sect. 6, sect. 24, sect. 32 [para. 63].

Counsel:

Garry J. Smith, Q.C., and C.J. Tzekas, for Central Ontario Coalition, applicant;

James Wallace, for the City of Kitchener, applicant;

Vernon B. Copp, Q.C., for the City of Cambridge, applicant;

Connie Peterson Giller, for the Regional Municipality of Waterloo, applicant;

Marc Somerville, Q.C., for the County of Oxford, applicant;

David Estrin, for Wallace Kennedy et al., applicants;

Bruce B. Campbell and G.F. Willcocks, for Ontario Hydro, respondent;

Benjamin Zarnett, for Ontario Electric Commission, respondent;

T. McQuail, appearing in person on behalf of Foodland/Hydro Committee, (with leave of the Court), respondent;

David I. Poch, for Energy Probe, Intervenor.

This case was heard before Van Camp, Reid and Krever, JJ., of the Ontario Divisional Court.

On June 25, 1984, Reid, J., delivered the following judgment for the Divisional Court: