McGregor v. London, (2004) 193 O.A.C. 153 (DC)

• Judge: O'Driscoll, McCombs and Wilson, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: December 23, 2004
• Jurisdiction: Ontario
• Citations: (2004), 193 O.A.C. 153 (DC)

McGregor v. London (2004), 193 O.A.C. 153 (DC)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. JA.011

Gaile McGregor (applicant) v. The Corporation of The City of London, The Upper Thames River Conservation Authority and Rival Developments Inc. (respondents)

(1406)

Indexed As: McGregor v. London (City) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

O'Driscoll, McCombs and Wilson, JJ.

December 23, 2004.

Summary:

The Ontario Municipal Board, on appeal from council, amended both the Official Plan of the City of London and the zoning bylaw to permit a developer to develop 27 townhouses in five buildings. The City then approved the developer's site plan. An ad­joining landowner, applied for judicial review to quash the City's decision to approve the site plan and the "conditional approval" given to the development by the Upper Thames River Conservation Authority.

The Ontario Divisional Court, Wilson, J., dissenting on the test for the admissibility of fresh evidence and on the assessment of costs, dismissed the application.

Editor's Note: The Ontario Divisional Court, per Ross, J., dismissed the applicant's appli­cation for leave to appeal the Ontario Munic­ipal Board's decision. See 174 O.A.C. 297.

Administrative Law - Topic 542

The hearing and decision - Decisions of the tribunal - What constitutes a decision - [See second Land Regulation - Topic 3239 ].

Land Regulation - Topic 3239

Land use control - Building or develop­ment permits - Judicial review or appeals to courts - The Ontario Municipal Board, on appeal from council, amended both the Official Plan of the City of London and the zoning bylaw to permit a developer to develop 27 townhouses in five buildings - The City then approved the developer's site plan - The Ontario Divisional Court upheld the City's decision to approve the site plan as being intra vires and not pat­ently unreasonable - See paragraphs 1 to 33, 46 to 50.

Land Regulation - Topic 3239

Land use control - Building or develop­ment permits - Judicial review or appeals to courts - The Upper Thames River Con­servation Authority gave a "conditional approval" to a development in the City of London - The Ontario Divisional Court declined to quash that "conditional appro­val" because the Authority had no jurisdic­tion to give it and hence it did not consti­tute a "decision" or "approval" giving rise to judicial review - See paragraphs 38 to 45.

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Public interest or test case - The City of London approved a site plan that would permit a developer to develop 27 townhouses in five buildings - The Upper Thames River Conservation Author­ity gave a "conditional approval" to the development - An adjoining landowner sought judicial review to quash the City's decision and the Authority's "conditional approval" - She raised private as well as environmental concerns - The Ontario Divisional Court dismissed the application - The court awarded fixed costs, on a partial indemnity basis, to the City, the Authority and the developer - This was not public interest litigation - See paragraphs 51 to 57.

Cases Noticed:

Keeprite Workers Independent Union v. Keeprite Products Ltd. (1980), 29 O.R.(2d) 513 (C.A.), leave to appeal refused (1980), 35 N.R. 85 (S.C.C.), refd to. [paras. 37, 100].

Ontario Public Service Employees' Union, Thibert, Jung and McGill v. Ontario (Minister of Correctional Services) (1984), 2 O.A.C. 351; 45 O.R.(2d) 70 (Div. Ct.), refd to. [paras. 37, 100].

Nanaimo (City) v. Rascal Trucking Ltd. et al., [2000] 1 S.C.R. 342; 251 N.R. 42; 132 B.C.A.C. 298; 215 W.A.C. 298, consd. [paras. 46, 103].

Ontario Federation of Anglers & Hunters et al. v. Ontario (Minister of Natural Resources) et al. (2002), 158 O.A.C. 255 (C.A.), consd. [para. 85].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, refd to. [para. 85].

Counsel:

Gaile McGregor, in person;

Geoffrey P. Belch, for the City of London;

Timothy G. Price, for The Upper Thames River Conservation Authority;

Barry R. Card, for Rival Developments Inc.

This application was heard on January 8 and 9, 2004, by O'Driscoll, McCombs and Wilson, JJ., of the Ontario Divisional Court.

The decision of the Divisional Court was released on December 23, 2004 and the following reasons were filed:

O'Driscoll, J. (McCombs, J., concurring) - see paragraphs 1 to 57;

Wilson, J. (dissenting in part) - see para­graphs 58 to 120.