Ottawa (City) v. Minto Communities Inc., (2009) 257 O.A.C. 207 (DC)

• Judge: Matlow, Kent and Aston, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: October 08, 2009
• Jurisdiction: Ontario
• Citations: (2009), 257 O.A.C. 207 (DC)

Ottawa v. Minto Com. Inc. (2009), 257 O.A.C. 207 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. DE.057

City of Ottawa (appellant) v. Minto Communities Inc. (respondent)

(DC-09-001527-0000)

Indexed As: Ottawa (City) v. Minto Communities Inc.

Court of Ontario

Superior Court of Justice

Divisional Court

Matlow, Kent and Aston, JJ.

November 13, 2009.

Summary:

Minto Communities Inc. applied to amend the Manotick Secondary Plan which was part of the City of Ottawa's Official Plan. It proposed the removal of certain growth management policies to allow construction of 1,400 new dwelling units. After an extensive public process, council passed a motion refusing to amend the plan. Minto appealed. The Ontario Municipal Board allowed the appeal. The City obtained leave to appeal on the following question: did the Board err in failing "to have regard to" the decision of Council pursuant to s. 2.1 of the Planning Act?

The Ontario Divisional Court, Matlow, J., dissenting, answered the question in the negative and dismissed the appeal.

Land Regulation - Topic 2122

Land use control - Municipal plan - Appeals to appeal board - Scope or standard of review - Minto Communities Inc. applied to amend the Manotick Secondary Plan which was part of the City of Ottawa's Official Plan - It proposed the removal of certain growth management policies to allow construction of 1,400 new dwelling units - After an extensive public process, council passed a motion refusing to amend the plan - The Ontario Municipal Board allowed an appeal - The Ontario Divisional Court rejected an assertion that the Board erred in failing "to have regard to" the decision of Council pursuant to s. 2.1 of the Planning Act - The Board was not required to exercise its appellate jurisdiction with the degree of deference articulated in New Brunswick (Board of Management) v. Dunsmuir (S.C.C.) - "Have regard to" did not suggest more than minimal deference to the decision of the municipal council - However, in the context of the Planning Act, and balancing the public interest mandates of both the Board and the municipality, the Board had an obligation to at least scrutinize and carefully consider council's decision, as well as the information and material that was before council - Further, where council was now required to give written reasons when refusing to adopt requested planning amendments, which were part of the record before the Board, the Board had to also carefully and explicitly consider the specific reasons expressed by Council - However, the Board did not have to find that council's decision was demonstrably unreasonable to arrive at an opposite conclusion - The Board met that standard - It fully and carefully analyzed each of the five reasons stated by council when it refused Minto's application - The Board scrutinized council's decision and made findings that supported the Board's explicit reasons for arriving at a different conclusion and a decision inconsistent with that of council - See paragraphs 32 to 43.

Municipal Law - Topic 1663

Powers of municipalities - Statutory appeals from exercise of powers - Appeal to municipal board - Judicial review of decision - Minto Communities Inc. applied to amend the Manotick Secondary Plan which was part of the City of Ottawa's Official Plan - It proposed the removal of certain growth management policies to allow construction of 1400 new dwelling units - After an extensive public process, council passed a motion refusing to amend the plan - The Ontario Municipal Board allowed an appeal - The City obtained leave to appeal on the question of whether the Board erred in failing "to have regard to" the decision of Council pursuant to s. 2.1 of the Planning Act - The Ontario Divisional Court stated that the standard of review on appeals under s. 96 of the Ontario Municipal Board Act had been determined by London (City) v. Ayerswood Development Corp. et al. - Questions of law that engaged the Board's specialized expertise, such as the interpretation of its own statute, attracted a standard of reasonableness - Here, the Board was interpreting one of its home statutes, the Planning Act, using its expertise in land use planning, its familiarity with the Provincial Policy Statement 2005 and its understanding of its own public interest mandate under the Act - The court concluded that the standard of review was reasonableness - See paragraphs 15 to 17.

Municipal Law - Topic 1664

Powers of municipalities - Statutory appeals from exercise of powers - Appeal to municipal board - Scope or standard of review - [See Land Regulation - Topic 2122 ].

Words and Phrases

Have regard to - The Ontario Divisional Court considered the meaning of this phrase as used in s. 2.1 of the Planning Act, R.S.O. 1990, c. P-13 - See paragraph 33.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 3, footnote 1].

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120; 34 M.P.L.R.(3d) 1 (C.A.), appld. [para. 16, footnote 3].

Toronto (City) v. R & G Realty Management Inc. (2009), 254 O.A.C. 66; 2009 CarswellOnt 4717 (Div. Ct.), appld. [para. 17, footnote 4].

Kanata Research Park Corp. et al. v. Ottawa (City), [2008] O.M.B.D. No. 1048 (O.M.B.), refd to. [paras. 19, 49, footnote 5].

Silverwood Homes Ltd. v. Hamilton, [2008] O.M.B.D. No. 1174, refd to. [paras. 20, 50, footnote 6].

Smart Centres Inc. v. Toronto (City), 2009 CarswellOnt 1421 (O.M.B.), refd to. [para. 22, footnote 8].

Keswick Sutherland School Inc. v. Halton (Region) and Halton Hills (Town), 2009 CarswellOnt 1470, refd to. [para. 24, footnote 9].

Concerned Citizens of King (Township) v. King (Township), [2000] O.J. No. 3517 (Div. Ct.), refd to. [para. 25, footnote 10].

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; 2000 SCC 13, refd to. [para. 27, footnote 11].

Statutes Noticed:

Planning Act, R.S.O. 1990, c. P-13, sect. 2.1 [para. 12].

Counsel:

Paul A. Webber, Q.C, Janet Bradley and Emma Blanchard, for the appellant;

Robert Doumani, Steven Zakem and January Cohen, for the respondent;

Stan Floras for Ontario Municipal Board.

This appeal was heard at Ottawa, Ontario, on October 8, 2009, by Matlow, Kent and Aston, JJ., of the Ontario Divisional Court. On November 13, 2009, the judgment of the court was released with the following opinions:

Aston, J. (Kent, J., concurring) - see paragraphs 1 to 43;

Matlow, J., dissenting - see paragraphs 44 to 58.