SOS-Save Our St. Clair Inc. v. Toronto (City) et al., (2006) 208 O.A.C. 211 (DC)

• Judge: Cunningham, A.C.J.S.C., O'Driscoll and Swinton, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: February 01, 2006
• Jurisdiction: Ontario
• Citations: (2006), 208 O.A.C. 211 (DC)

SOS-Save Our St. Clair Inc. v. Toronto (2006), 208 O.A.C. 211 (DC)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. MR.034

SOS-Save Our St. Clair Inc. (applicant) v. City of Toronto and Toronto Transit Commission (respondents)

(329/05)

Indexed As: SOS-Save Our St. Clair Inc. v. Toronto (City) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Cunningham, A.C.J.S.C., O'Driscoll and Swinton, JJ.

February 21, 2006.

Summary:

The applicant applied for judicial review seeking: (a) a declaration that the decision of the City of Toronto to proceed with construction of a dedicated streetcar right-of-way on St. Clair Avenue West was in breach of s. 24 of the Planning Act; and (b) a declaration that the City failed to complete a Class Environmental Assessment as required by the Environmental Assessment Act.

The Ontario Divisional Court dismissed the application.

Land Regulation - Topic 2160

Land use control - Municipal plan - Enforcement - General - [See both Land Regulation - Topic 3341 ].

Land Regulation - Topic 3341

Land use control - Official or development plans - General - The applicant sought a declaration that the City of Toronto's decision to proceed with construction of a dedicated streetcar right-of-way was in breach of s. 24(1) of the Planning Act - Section 24(1) stated that where an official plan was in effect, no public work was to be undertaken that did not conform therewith - The applicant argued that the official plan to be considered for the purpose of s. 24(1) was the plan that was in effect when the project was approved (the Metroplan) - A New Official Plan (the New OP) had been adopted by City Council in November 2002 and in January 2006 the Ontario Municipal Board had approved the transportation policies in the New OP and ordered that they take effect - The Ontario Divisional Court held that the language of s. 24(1) suggested that the official plan to be considered was the one in effect at the time that the project was undertaken - Therefore, in this case, conformity was to be determined by considering the transportation policies of the New OP - See paragraph 36.

Land Regulation - Topic 3341

Land use control - Official or development plans - General - The applicant sought a declaration that the City of Toronto's decision to proceed with construction of a dedicated streetcar right-of-way on St. Clair Avenue West was in breach of s. 24(1) of the Planning Act - Section 24(1) stated that where an official plan was in effect, no public work was to be undertaken that did not conform therewith - The applicant argued that the project did not conform with the transportation policies of the New Official Plan of the City of Toronto (the New OP) because only part of the St. Clair West Project was marked on Map 4 dealing with high density transit, and because the project should not proceed until an Avenues study was done in accordance with another part of the New OP that had not yet been approved by the Ontario Municipal Board - The Ontario Divisional Court held that the project was in conformity with the New OP and the City was not in breach of s. 24(1) of the Planning Act - See paragraphs 42 to 55.

Municipal Law - Topic 1503.1

Powers of municipalities - Particular powers - Re transit systems - [See second Land Regulation - Topic 3341 ].

Municipal Law - Topic 1682

Powers of municipalities - Judicial review of exercise of powers - Scope of powers of judicial review - The applicant applied for judicial review seeking a declaration that the decision of the City of Toronto to proceed with construction of a dedicated streetcar right-of-way was in breach of s. 24(1) of the Planning Act - Section 24(1) stated that where an official plan was in effect, no public work was to be undertaken that did not conform therewith - The application raised the issue of which of two official plans was applicable for purposes of s. 24(1) - The Ontario Divisional Court stated that "the decision of City Council that a particular project is in conformity with the policies in its Official Plan is entitled to some deference, as that decision requires the application of a policy to a given set of facts. However, the question of whether a particular Official Plan is in effect for purposes of s. 24(1) of the Planning Act is not within the expertise of the City Council, and this determination is subject to review on a standard of correctness" - See paragraph 35.

Practice - Topic 6270

Judgments and orders - Administrative orders - Collateral attack - The applicant applied for judicial review seeking a declaration that the City of Toronto failed to complete a Class Environmental Assessment with respect to the construction of a dedicated streetcar right-of-way as required by the Environmental Assessment Act - The Minister of the Environment had refused the applicant's request for a Part II Environmental Assessment - The Ontario Divisional Court held that it would not review the issues raised by the applicant with respect to the Class EA process as they were a collateral attack on the Minister's decision - The Minister's decision was not the subject of the application - See paragraphs 26 to 29.

Cases Noticed:

Friends of Eden Mills Inc. v. Eramosa (Township) (1998), 111 O.A.C. 81 (Div. Ct.), consd. [para. 26].

Ofner Essex Resources v. Ontario (Minister of Environment and Energy) (1996), 18 C.E.L.R.(N.S.) 317 (Ont. Div. Ct.), refd to. [para. 28].

Bele Himmell Investments Ltd. v. Mississauga (City) (1982), 13 O.M.B.R. 17 (Ont. Div. Ct.), refd to. [para. 32].

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 (S.C.C.), refd to. [para. 34].

Clergy Properties Ltd. v. Mississauga (City) (1996), 34 O.M.B.R. 277 (O.M.B.), not appld. [para. 37].

James Dick Construction Ltd. v. Caledon (Town) (2003), 47 O.M.B.R. 87 (O.M.B.), refd to. [para. 37].

Statutes Noticed:

Planning Act, R.S.O. 1990, c. P-13, sect. 24(1), sect. 24(3) [para. 13].

Counsel:

E.K. Gillespie, for the applicant;

G. Rempe, for the respondent, City of Toronto;

J.W. Harbell and P.G. Duffy, for the respondent, Toronto Transit Commission.

This application was heard on January 31 and February 1, 2006, at Toronto, Ontario, before Cunningham, A.C.J.S.C., O'Driscoll and Swinton, JJ., of the Ontario Divisional Court. The Divisional Court released the following judgment on February 21, 2006.