McGregor v. Rival Dev. Inc., (2003) 174 O.A.C. 297 (DC)

• Judge: Ross, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: July 28, 2003
• Jurisdiction: Ontario
• Citations: (2003), 174 O.A.C. 297 (DC)

McGregor v. Rival Dev. Inc. (2003), 174 O.A.C. 297 (DC)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. JL.066

Gaile McGregor (applicant) v. Rival Developments Inc. (respondent)

(2575/02)

Indexed As: McGregor v. Rival Developments Inc.

Court of Ontario

Superior Court of Justice

Divisional Court

Ross, J.

July 28, 2003.

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. A landowner, who had been granted party status to oppose the amendments, applied under s. 96 of the Ontario Municipal Board Act for leave to appeal on a question of law.

The Ontario Divisional Court, per Ross, J., denied leave to appeal.

Land Regulation - Topic 4125

Land use control - Statutory appeals - Jurisdiction of appeal board - Section 34(11) of the Planning Act provided that where council refused or neglected to make a decision within 90 days on an application to amend a bylaw, the applicant may appeal to the Municipal Board and the Board "shall hear the appeal and dismiss the same or amend the bylaw in such manner as the Board may determine or direct that the bylaw be amended in ac­cordance with its order" - The Ontario Divisional Court, per Ross, J., held that s. 34(11) provided for an appeal where the Board was required to exercise its own independent judgment and consider the application de novo on the merits - The court rejected the submission that the Board must show deference to council's decision on the application - The court stated that "that is not to say that [coun­cil's] views are to be ignored on the ap­peal. To the contrary, the Board is directed to give the parties to the appeal a full and fair hearing, to consider the evidence presented ... and to consider their submis­sions. ... It is a fresh hearing, not a review of the council's decision." - See paragraphs 53 to 73.

Land Regulation - Topic 4145

Land use control - Appeals to the courts - Leave to appeal - On question of law - Section 96 of the Ontario Municipal Board Act provided for an appeal to the Divi­sional Court from the Municipal Board with leave on a question of law - The Ontario Divisional Court stated that the test for the granting of leave was "leave to appeal from a decision of the Board must be granted only where the court is satisfied that there is a point of law of sufficient importance to merit the attention of the Divisional Court and there is some reason to doubt the correctness of the Board's decision" - See paragraph 12.

Land Regulation - Topic 4145

Land use control - Appeals to the courts - Leave to appeal - On question of law - Section 96 of the Ontario Municipal Board Act provided for an appeal to the Divi­sional Court from the Municipal Board with leave on a question of law - The Ontario Municipal Board, on appeal from council, amended both an Official Plan and a zoning bylaw to permit a developer to develop 27 townhouses in five buildings - A landowner, who had been granted party status to oppose the amendments, applied under s. 96 of the Ontario Municipal Board Act for leave to appeal on a ques­tion of law - The Ontario Divisional Court, per Ross, J., denied leave to appeal - The eight grounds of appeal raised related to questions of fact, not law, raised questions of law already conclusively determined at the appellate level, or did not raise ques­tions of law of sufficient importance to merit that Divisional Court's attention.

Cases Noticed:

Toronto (City) v. Torgan Developments et al. (1990), 36 O.A.C. 318; 47 M.P.L.R. 7 (Div. Ct.), refd to. [para. 12].

Toronto Transit Commission et al. v. Tor­onto (City) et al. (1990), 42 O.A.C. 20 (Div. Ct.), refd to. [para. 13].

Blue Mountains (Town) v. Canadian De­velopment Management Corp., [2002] O.J. No. 2497 (Div. Ct.), refd to. [para. 14].

Rogers v. Hamilton (2001), 42 O.M.B.R. 52 (O.M.B.), refd to. [para. 28].

Monarch Construction Ltd. v. London (City), [1999] O.M.B.D. No. 370 (O.M.B.), refd to. [para. 29].

Cloverdale Shopping Centre Ltd. v. Etobi­coke (Township), [1966] 2 O.R. 439 (C.A.), refd to. [para. 43].

Hopedale Developments Ltd. v. Oakville (Town), [1965] 1 O.R. 259 (C.A.), refd to. [para. 43].

Toronto (City) Restricted Area By-Law 258-71, Re (1973), 2 O.M.B.R. 243 (O.M.B.), not appld. [para. 44].

Oriental Investments Ltd. v. Toronto (City) (1977), 6 O.M.B.R. 432 (O.M.B.), not appld. [para. 45].

Lexton Developments v. Vaughan (Town) (1983), 14 O.M.B.R. 468 (O.M.B.), not appld. [para. 46].

Zena Lieken (Estate) v. Nepean (City) (1983), 15 O.M.B.R. 363 (Div. Ct.), refd to. [para. 47].

Mississauga Golf and Country Club Ltd., Re, [1963] 2 O.R. 625; 40 D.L.R.(2d) 673 (C.A.), refd to. [para. 51].

Oro (Township) v. Bafma Inc. et al. (1995), 79 O.A.C. 1; 21 O.R.(3d) 483 (Div. Ct.), refd to. [para. 52].

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, dist. [para. 54].

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, dist. [para. 54].

Lamb v. Canadian Reserve Oil and Gas Ltd., [1976] 4 W.W.R. 79; 8 N.R. 613 (S.C.C.), dist. [para. 69].

Zellers Inc. et al. v. Royal Cobourg Centres Ltd. et al. (2001), 156 O.A.C. 133 (Div. Ct.), refd to. [para. 81].

Service Employees' International Union, Local 333 v. Nipawin District Staff Nurses' Association et al., [1975] 1 S.C.R. 382, refd to. [para. 91].

Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; 55 N.R. 194, refd to. [para. 92].

6 & 7 Developments Ltd. et al. v. Hud­son's Bay Co. et al. (2000), 172 O.A.C. 41 (Div. Ct.), refd to. [para. 95].

King City Preserve the Village Inc. v. York (Regional Municipality), [2001] O.J. No. 5363 (Div. Ct.), refd to. [para. 120].

Concerned Citizens of King Township Inc. v. King (Township) (2000), 42 O.M.B.R. 3 (Div. Ct.), refd to. [para. 121].

Juno Developments (Parry Sound) Ltd. v. Parry Sound (Town) et al. (1997), 99 O.A.C. 95; 35 O.M.B.R. 1 (Div. Ct.), refd to. [para. 121].

Ottawa-Carleton (Regional Municipality) Official Plan Amendment 8, Re (1991), 26 O.M.B.R. 132, refd to. [para. 121].

Proudfoot Motels Ltd. v. Municipal Board (Ont.) et al. (1996), 92 O.A.C. 35 (Div. Ct.), refd to. [para. 133].

Dalfen et al. v. Ottawa (City) Committee of Adjustment (1993), 30 O.M.B.R. 235 (O.M.B.), refd to. [para. 139].

Motisi et al. v. Bernardi (1987), 20 O.M.B.R. 129 (O.M.B.), refd to. [para. 139].

Statutes Noticed:

Ontario Municipal Board Act, R.S.O. 1990, c. O-28, sect. 92(3) [para. 2].

Planning Act, R.S.O. 1990, c. P-13, sect. 34(10.1), sect. 34(10.2), sect. 34(10.3), sect. 34(11) [para. 17].

Counsel:

Gaile McGregor, on her own behalf;

Barry R. Card, for the respondent.

This application was heard on May 23 and June 12-13, 2003, before Ross, J., of the Ontario Divisional Court, who released the following judgment on July 28, 2003.