Equity Waste Management of Canada et al. v. Halton Hills (Town), (1997) 103 O.A.C. 324 (CA)

• Judge: McMurtry, C.J.O., Catzman and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 30, 1997
• Jurisdiction: Ontario
• Citations: (1997), 103 O.A.C. 324 (CA);1997 CanLII 2742 (ON CA);1997 CanLII 2742 (NS CA);35 OR (3d) 321;[1997] OJ No 3921 (QL);103 OAC 324;40 MPLR (2d) 107;74 ACWS (3d) 297

Equity Waste Mgt. v. Halton Hills (1997), 103 O.A.C. 324 (CA)

MLB headnote and full text

Temp. Cite: [1997] O.A.C. TBEd. OC.015

Equity Waste Management of Canada and Panorama Investment Group Ltd. (applicants/respondents) v. The Corporation of the Town of Halton Hills (respondent/appellant)

(C19926)

Indexed As: Equity Waste Management of Canada et al. v. Halton Hills (Town)

Ontario Court of Appeal

McMurtry, C.J.O., Catzman and Laskin, JJ.A.

September 30, 1997.

Summary:

Equity Waste Management of Canada obtained approval from Halton Hills' (the Town) planning department to build a waste composting facility on land in an area called the Industrial Corridor. Panorama Investment Group Ltd. obtained approval from the Town's Site Plan Committee to build a truck transportation terminal on land in the Cor­ridor. The Town passed an interim control bylaw freezing development in the Corridor. Equity and Panorama brought applications under s. 136(1) of the Municipal Act to quash the bylaw for illegality (bad faith).

The Ontario Court (General Division) granted the applications. The Town appealed.

The Ontario Court of Appeal allowed the appeal, set aside the judgment below, and dismissed the applications.

Land Regulation - Topic 2593

Land use control - Zoning bylaws - In­terim control bylaws - Purpose of - [See Municipal Law - Topic 3773 ].

Land Regulation - Topic 2595

Land use control - Zoning bylaws - In­terim control bylaws - Enactment of (incl. conditions of) - [See Municipal Law - Topic 3812 ].

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal - [See Municipal Law - Topic 3884 ].

Land Regulation - Topic 4154

Land use control - Appeals to the courts - Jurisdiction - [See all Municipal Law - Topic 3810 ].

Municipal Law - Topic 1662

Powers of municipalities - Statutory ap­peals from exercise of powers - Jurisdic­tion of appeal board - [See all Municipal Law - Topic 3810 ].

Municipal Law - Topic 3773

Bylaws - Scope of - Interim control bylaw - The Ontario Court of Appeal reviewed the nature of interim control bylaws - See paragraphs 48 to 60.

Municipal Law - Topic 3810

Bylaws - Quashing bylaws - General - Jurisdiction - Equity and Panorama by-passed the Ontario Municipal Board (OMB) and applied under s. 136(1) of the Municipal Act to quash a town's interim control bylaw for illegality - The motion judge quashed the bylaw - The Town appealed, arguing inter alia, that the mo­tion judge should not have entertained the applications because the OMB had ex­clus­ive jurisdiction to review interim con­trol bylaws - The Ontario Court of Appeal stated that "[d]etermining the appropriate tribunal is a question of determining the legislative intent in conferring jurisdiction on the OMB to review interim control by-laws and in conferring jurisdiction on the courts under s. 136 of the Municipal Act ... to rule on the legality of bylaws." - See paragraph 31.

Municipal Law - Topic 3810

Bylaws - Quashing bylaws - General - Jurisdiction - Equity and Panorama by-passed the Ontario Municipal Board (OMB) and applied to quash a town's interim control bylaw for illegality (Mu­nicipal Act, s. 136(1)) - On appeal, the Town argued, inter alia, that the motion judge should not have entertained the applications because the OMB had ex­clus­ive jurisdiction to review interim con­trol bylaws - The Ontario Court of Appeal stated that "[t]o answer the question of legislative intent, courts have typically taken into account a number of factors, including the following: the wording of the statutory provisions conferring jurisdiction, the reasons for the creation of the tribunal, the breadth of the tribunal's powers, the comparative expertise of the courts and the tribunal, the nature of the question of the dispute, whether the question falls within the tribunal's expertise, and the adequacy of each forum for resolving the question." - See paragraph 31.

Municipal Law - Topic 3810

Bylaws - Quashing bylaws - General - Jurisdiction - Equity and Panorama by-passed the Ontario Municipal Board (OMB) and applied to quash a town's interim control bylaw for illegality (Mu­nicipal Act, s. 136(1)) - On appeal, the Town argued, inter alia, that the motion judge should not have entertained the applications because the OMB had ex­clus­ive jurisdiction to review interim con­trol bylaws (Ontario Municipal Board Act, s. 36) - The Ontario Court of Appeal stated "... I do not find in s. 36 - even though it uses the phrase 'exclusive juris­diction' - a legislative intent to exclude entirely the courts' longstanding jurisdic­tion to quash a bylaw for illegality, in­cluding for bad faith." - See paragraph 32.

Municipal Law - Topic 3810

Bylaws - Quashing bylaws - General - Jurisdiction - Equity and Panorama by-passed the Ontario Municipal Board (OMB) and applied to quash a town's interim control bylaw for illegality (Mu­nicipal Act, s. 136(1)) - On appeal, the Town argued, inter alia, that the motion judge should not have entertained the applications because the OMB had ex­clus­ive jurisdiction to review interim con­trol bylaws (Ontario Municipal Board Act, s. 36) - The Ontario Court of Appeal reviewed the adequacy of each forum for resolving the dispute and held that the motion judge properly exercised her dis­cretion to hear the application on the ground of urgency - By the time Equity would have obtained a hearing date with the OMB, Equity's trustee would have lost its right to purchase the property (unless it waived the conditions for regulatory ap­proval) - See paragraph 36.

Municipal Law - Topic 3812

Bylaws - Quashing bylaws - General - Onus and burden of proof - Equity and Panorama applied to quash a town's in­terim control bylaw for illegality (bad faith) (Municipal Act, s. 136(1)) - A motion judge granted the application - The town appealed arguing, inter alia, that the motion judge erred by burdening the town council's ability to pass an interim control bylaw with conditions not required by the Planning Act and by shifting the onus to the council to justify the bylaw - The Ontario Court of Appeal agreed and al­lowed the appeal - The court stated, inter alia, that on an application under s. 136(1), the party seeking to quash a bylaw had the onus to prove bad faith - See paragraphs 47 to 60.

Municipal Law - Topic 3843

Bylaws - Quashing bylaws - Grounds for judicial interference - Illegality - [See Municipal Law - Topic 3853 ].

Municipal Law - Topic 3853

Bylaws - Quashing bylaws - Grounds for judicial interference - Lack of good faith - Equity and Panorama applied to quash a town's interim control bylaw for illegality (bad faith) (Municipal Act, s. 136(1)) - A motion judge granted the application - The town appealed arguing, inter alia, that the motion judge erred in finding bad faith - The Ontario Court of Appeal stated that the evidentiary support for the finding of bad faith mainly rested on the allegations that town councillors were concerned about being re-elected in forthcoming municipal elections and had passed the bylaw to appease a small group of dissident rate­payers - The court reviewed the eviden­tiary record and held that a finding that the town council passed the bylaw in bad faith was unreasonable - See paragraphs 61 to 73.

Municipal Law - Topic 3884

Bylaws - Quashing bylaws - Judicial review - Practice - Standard of review - The Ontario Court of Appeal stated that a motion judge's approach to the judicial review of interim control bylaws was too interventionist and that it adopted a more deferential approach to the review of mu­nicipal powers - See paragraphs 58 and 59.

Municipal Law - Topic 3927

Bylaws - Statutory appeal - Jurisdiction - [See all Municipal Law - Topic 3810 ].

Practice - Topic 8811

Appeals - General principles - Duty of appellate court re fact findings based on transcript of evidence alone - The Ontario Court of Appeal held that, "... although the entire record before a trial judge or motion judge consists of documentary or written evidence, as it does in this case, the judge's factual findings are entitled to deference on appeal ... It is not easy to articulate a standard less deferential than 'manifest error' but falling short of 'cor­rectness'. I suggest that it may simply be a matter of weight or emphasis, or that, plausibly, a uniform standard of appellate review should be applied to a trial judge's findings of fact, whether the evidence is entirely oral, entirely documentary or, more typically, a combination of the two." - See paragraphs 38 to 45.

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - Equity and Panorama brought applications under s. 136(1) of the Municipal Act to quash a town's interim control bylaw for illegality - On appeal, the Ontario Court of Appeal opined that the bylaw had expired and the question was moot - However, the court stated that because interim control bylaws rarely came before it, and because it's decision might affect the rights of the parties in civil proceedings, it should hear the appeal - See paragraphs 3 and 4.

Cases Noticed:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 38 C.R.R. 232; 57 D.L.R.(4th) 231; 47 C.C.C.(3d) 1; 33 C.P.C.(2d) 105; [1989] 3 W.W.R. 97, refd to. [para. 4].

Luxor Entertainment Corp. v. North York (City) (1996), 27 O.R.(3d) 259 (Gen. Div.), refd to. [para. 28].

Blyth v. Northumberland (County) (1990), 75 O.R.(2d) 576 (Gen. Div.), refd to. [para. 28].

839891 Ontario Inc. v. St. Catherines (City) (1992), 10 M.P.L.R.(2d) 1 (Ont. Gen. Div.), refd to. [para. 28].

715113 Ontario Inc. v. Ottawa (City) (1987), 46 D.L.R.(4th) 552 (Ont. H.C.), refd to. [para. 28].

Howard v. Toronto (City) (1927), 61 O.L.R. 563 (C.A.), refd to. [para. 33].

Gilbert v. Oakville (Town) (1986), 31 M.P.L.R. 157 (O.M.B.), refd to. [para. 34].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 38].

Wilbur v. Wilbur (1983), 41 O.R.(2d) 565 (C.A.), refd to. [para. 40].

Carter v. Brooks (1990), 41 O.A.C. 389; 2 O.R.(3d) 321 (C.A.), refd to. [para. 41].

Sherman v. National Life Assurance Co. of Canada (1996), 92 O.A.C. 19 (Div. Ct.), refd to. [para. 41].

Manore v. Manore (1995), 67 B.C.A.C. 259; 111 W.A.C. 259 (C.A.), refd to. [para. 41].

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al. (1997), 100 O.A.C. 344; 33 O.R.(3d) 735 (C.A.), refd to. [para. 41].

Lovelace et al. v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 42].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81; 81 D.L.R.(4th) 211, refd to. [para. 43].

Ottawa (City) v. Boyd Builders Ltd., [1965] S.C.R. 408, refd to. [para. 49].

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; 163 N.R. 81; 41 B.C.A.C. 81; 66 W.A.C. 81; 110 D.L.R.(4th) 1; [1994] 3 W.W.R. 609; 88 B.C.L.R.(2d) 145; 20 Admin. L.R.(2d) 202; 20 M.P.L.R.(2d) 1, refd to. [para. 58].

Winton (H.G.) Ltd. v. North York (Bor­ough) (1978), 20 O.R.(2d) 737 (Div. Ct.), refd to. [para. 61].

Statutes Noticed:

Municipal Act, R.S.O. 1990, c. M-45, sect. 136(1) [para. 27].

Ontario Municipal Board Act, R.S.O. 1990, c. O-28, sect. 35 [para. 26]; sect. 36 [para. 25]; sect. 37, sect. 38, sect. 96 [para. 26].

Planning Act, R.S.O. 1990, c. P-13, sect. 38(1) [para. 22]; sect. 38(2), sect. 38(3) [para. 23]; sect. 38(4) [para. 24].

Authors and Works Noticed:

Kerans, Roger, Standards of Review Em­ployed by Appellate Courts (1994), p. 28 [para. 44].

Makuch, Canadian Municipal and Planning Law (1983), pp. 215 to 219 [para. 61].

Pepino and Watt, Interim Control By-Laws and the Ontario Municipal Board (1988), p. 3 [para. 49].

Report of the Planning Act Review Com­mittee (1977), generally [para. 48].

White Paper on the Planning Act (1979), generally [para. 48].

Counsel:

H. David and S.J. D'Agostino, for the appellant;

C. Stevenson, for the respondent, Equity Waste Management of Canada;

W. Kort, for the respondent, Panorama Investment Group Ltd.

This appeal was heard on February 17 and 18, 1997, before McMurtry, C.J.O., Catzman and Laskin, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered by Laskin, J.A., and released on September 30, 1997.