Richmond Hill Naturalists v. Corsica Developments Inc. et al., 2013 ONSC 7894

• Judge: Himel, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: December 09, 2013
• Jurisdiction: Ontario
• Citations: 2013 ONSC 7894;(2013), 316 O.A.C. 248 (DC)

Richmond Hill v. Corsica Dev. Inc. (2013), 316 O.A.C. 248 (DC)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. FE.047

Richmond Hill Naturalists (moving party) v. Corsica Developments Inc., Town of Richmond Hill, Regional Municipality of York, Toronto and Region Conservation Authority, the David Dunlap Observatory Defenders Inc. and Ontario Municipal Board (respondents)

(358/13; 2013 ONSC 7894)

Indexed As: Richmond Hill Naturalists v. Corsica Developments Inc. et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Himel, J.

December 31, 2013.

Summary:

A decision of the Ontario Municipal Board dismissed the Richmond Hill Naturalists' Request to Review a Hearing Officer's decision approving an amendment to the Official Plan of the Town of Richmond Hill. A ground for review argued by the Naturalists was that the Hearing Officer erred in approving the development of lands that were within the cultural heritage landscape. The Naturalists applied for leave to appeal the Board's decision. The developer and the Town opposed the application.

The Ontario Divisional Court, per Himel, J., dismissed the application. The proposed appeal failed the test for leave as it did not raise a question of law. Even if it did raise a question of law, there was no good reason to doubt the correctness of the Request for Review decision, and the proposed appeal did not involve a question of sufficient importance to merit the attention of the court.

Administrative Law - Topic 9064

Boards and tribunals - Jurisdiction of particular boards and tribunals - Provincial Municipal Board - [See second Land Regulation - Topic 4145 ].

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - [See second Land Regulation - Topic 4145 ].

Estoppel - Topic 388

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Decisions of administrative tribunals - [See second Land Regulation - Topic 4145 ].

Land Regulation - Topic 2941

Land use control - Heritage protection - Designation of properties (incl. de-designation) - General - [See third Land Regulation - Topic 4145 ].

Land Regulation - Topic 4130

Land use control - Statutory appeals - Whether estoppel by res judicata applies - [See second Land Regulation - Topic 4145 ].

Land Regulation - Topic 4145

Land use control - Appeals to the courts - Leave to appeal - On question of law or jurisdiction - The Ontario Divisional Court, per Himel, J., stated that "Section 96(1) of the Ontario Municipal Board Act provides that an appeal from a decision of the Board lies to the Divisional Court only on a question of law and with leave of the court. ... In considering this question, this court has traditionally held that a good reason to doubt the correctness of the decision does not mean that the decision is wrong or probably wrong. It is sufficient to show that the correctness of the order is open to very serious debate ... Recently however, on motions for leave to appeal this court has tended to factor in the standard of review the court would be expected to apply should leave to appeal be granted in its application of the leave test. ... Similar to previous interpretations of the leave test, this does not mean that the party seeking leave must show the decision under appeal was unreasonable or probably unreasonable. Rather, they must show that the reasonableness of the decision is open to very serious debate. This modification of the test ensures proper deference to the OMB [Ontario Municipal Board] is shown at the leave stage ... " - See paragraphs 21 to 24.

Land Regulation - Topic 4145

Land use control - Appeals to the courts - Leave to appeal - On question of law or jurisdiction - The applicant brought a Request for Review of a Hearing Officer's decision, under s. 43 of the Ontario Municipal Board Act - The Chair dismissed the Request for Review on the grounds that, inter alia, the Ontario Municipal Board (OMB) was not bound by the factual findings in the previous proceedings before the Conservation Review Board (CRB) - The applicant sought leave to appeal, arguing that conditions of issue estoppel were satisfied - The Ontario Divisional Court, per Himel, J., held that the OMB was not bound by the CRB's findings nor did it err by failing to give deference to those findings and, accordingly, the proposed appeal did not pose a question of law - The court concluded that: (1) the issues before the CRB and the OMB were not the same, nor was the decision of the OMB a collateral attack on findings of the CRB; (2) the role played by the CRB was advisory only; and (3) the parties to the CRB and the OMB were not exactly the same - Even if the preconditions for issue estoppel were made out, an injustice might arise from using the results of the proceeding before the CRB to preclude the subsequent proceedings before the OMB - Nor was this a case where the court should in the interests of justice exercise its inherent jurisdiction to prevent an abuse of the court's process - See paragraphs 26 to 36.

Land Regulation - Topic 4145

Land use control - Appeals to the courts - Leave to appeal - On question of law or jurisdiction - The Ontario Municipal Board (OMB) dismissed the applicant's Request to Review a Hearing Officer's decision approving an amendment to the Official Plan of the respondent Town - A ground for review was that the Hearing Officer erred in approving the development of lands within the "cultural heritage landscape" - The applicant sought leave to appeal the OMB's decision - The Ontario Divisional Court, per Himel, J., stated that "[e]ven if this case raised a question of law and there was good reason to doubt the correctness of the decision, this is not a case which raises questions of sufficient importance to warrant the attention of this court. The Ontario Heritage Act provides municipalities with the power to designate properties to be of historic or architectural or cultural value or interest in order to protect and preserve the heritage of Ontario. That important purpose must be balanced against the individual property rights ... The case is site-specific and has no general application. The other public authorities and stakeholders do not support the position taken by the applicant. Finally, ...the case does not raise any conflict between the respective jurisdictions of two administrative tribunals concerned with land use in the province." - See paragraph 40.

Cases Noticed:

Mod-Aire Homes Ltd. v. Bradford (Town) (1990), 72 O.R.(2d) 683 (Div. Ct.), refd to. [para. 21].

Ash v. Lloyd's Corp. (1992), 8 O.R.(3d) 282 (Gen. Div.), refd to. [para. 22].

Aurora (Town) v. Sikura et al., [2011] O.A.C. Uned. 773; 2011 ONSC 7642 (Div. Ct.), refd to. [para. 23].

Train v. Weir et al. (2012), 299 O.A.C. 307; 2012 ONSC 5157 (Div. Ct.), refd to. [para. 24].

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. 25].

Watt et al. v. Classic Leisure Wear Inc. et al., [2008] O.T.C. Uned. 357; 43 M.P.L.R.(4th) 274 (Sup. Ct.), refd to. [para. 27].

Penner v. Niagara Regional Police Services Board et al. (2013), 442 N.R. 140; 304 O.A.C. 106; 49 Admin. L.R.(5th) 1; 2013 SCC 19, refd to. [para. 28].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 29].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 29].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 30].

ADMNS Kelvingrove Investment Corp. v. Toronto (City), [2010] O.M.B.D. No. 282; leave to appeal dismissed, [2010] O.J. No. 4811, refd to. [para. 33].

Friends of Eden Mills Inc. v. Eramosa (Township) (1998), 111 O.A.C. 81 (Div. Ct.), refd to. [para. 33].

Shanahan v. Russell - see Toronto (City) et al. v. Russell.

Toronto (City) et al. v. Russell (2000), 138 O.A.C. 246; 52 O.R.(3d) 9 (C.A.), refd to. [para. 38].

Statutes Noticed:

Ontario Municipal Board Act, R.S.O. 1990, c. O-28, sect. 43 [para. 13]; sect. 96(1) [para. 21].

Counsel:

Rory Gillis, for the moving party, Richmond Hill Naturalists;

David Bronskill and Ian Andres, for the responding party, Corsica Developments Inc.;

Antonio Dimilta, for the respondent, Town of Richmond Hill;

Jason Cherniak, for David Dunlap Observatory (DDO) Defenders Inc.

This application for leave to appeal was heard on December 9, 2013, before Himel, J., of the Ontario Divisional Court. The following judgment of the Court was released on December 31, 2013.