Toronto (City) v. Home Depot Holdings Inc., 2010 ONSC 6071

• Judge: Swinton, Nadeau and Harvison Young, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: October 26, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONSC 6071;(2010), 272 O.A.C. 81 (DC)

Toronto v. Home Depot (2010), 272 O.A.C. 81 (DC)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. DE.025

The City of Toronto (appellant) v. Home Depot Holdings Inc. (respondent)

(527/09; 2010 ONSC 6071)

Indexed As: Toronto (City) v. Home Depot Holdings Inc.

Court of Ontario

Superior Court of Justice

Divisional Court

Swinton, Nadeau and Harvison Young, JJ.

November 29, 2010.

Summary:

The City of Toronto sought leave to appeal from an order of the Ontario Municipal Board, which found that the application of Home Depot Holdings Inc. to develop certain lands for a major retail use did not constitute conversion of lands within an "Employment Area" to non-employment uses.

The Ontario Divisional Court, per Sachs, J., in a decision reported at [2010] O.A.C. Uned. 263, granted leave to appeal.

The Ontario Divisional Court dismissed the appeal.

Land Regulation - Topic 3216.2

Land use control - Building or development permits - Grounds for refusal - Development contrary to municipal planning strategy - The City of Toronto appealed from an order of the Ontario Municipal Board, which found that the application of Home Depot Holdings Inc. to develop certain lands for a major retail use did not constitute conversion of lands within an "Employment Area" to non-employment uses - The Ontario Divisional Court dismissed the appeal - Policy 4.6.3 of the Official Plan for the City of Toronto set out a process to obtain permission for retail stores on major streets that formed the boundaries - In the Board's view, Policy 4.6.4 provided another mechanism to obtain permission for large scale, stand-alone retail stores but for locations on other major streets - The process and considerations were not the same - Under Policy 4.6.4, there was a need to obtain an Official Plan amendment, and the criteria were more stringent -The applicant had to demonstrate that the development would not undermine the stability of the Employment Area, that there was sufficient transportation capacity, and the economic health of nearby shopping districts would not be affected - Having read the Official Plan as a whole, the Board concluded that the principle of major retail use was "established, authorized or contemplated" in the Employment Areas on major streets in Toronto's Official Plan - Policy 4.6.4 then governed the implementation of large scale, stand-alone retail uses - Therefore, Home Depot's application, if successful, would not result in a conversion of Employment Area lands pursuant to the Growth Plan because it would not introduce a major retail use on lands where such use was prohibited, excluded or not contemplated - The Board's decision was entitled to deference - The Board's reasons were detailed and intelligible, and they justified the conclusion reached - When the Official Plan was read as a whole, and Policy 4.6.4 was read in context, the Board's conclusion, that major retail use was established, authorized or contemplated in the Employment Areas, subject to locational limitations, fell within a range of reasonable outcomes - See paragraphs 35 to 51.

Land Regulation - Topic 3239

Land use control - Building or development permits - Judicial review or appeals to courts - [See Land Regulation - Topic 4143 ].

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal - The City of Toronto appealed from an order of the Ontario Municipal Board, which found that the application of Home Depot Holdings Inc. to develop certain lands for a major retail use did not constitute conversion of lands within an "Employment Area" to non-employment uses - With respect to the appropriate standard of review, the Ontario Divisional Court held that "The Divisional Court can hear an appeal from the Board only on a question of law, provided leave is granted ([Ontario Municipal Board Act], s. 96(1)). A number of cases have held that the appropriate standard of review of a decision of the Board is reasonableness when the question before the Board involves the interpretation of the Planning Act and related planning documents, such as an Official Plan. [...] Such questions engage the Board's specialized land use and planning expertise, and therefore, the Board's decision is entitled to deference. In the present appeal, the Board applies both the Planning Act and the Places to Grow Act, which are among its home statutes. It also applies the Growth Plan and the Toronto Official Plan, which are matters within its specialized expertise in planning. Therefore, the standard of review is reasonableness." - See paragraphs 29 to 34.

Cases Noticed:

Ontario College of Art et al. v. Human Rights Commission (Ont.) (1993), 63 O.A.C. 393; 11 O.R.(3d) 798 (Div. Ct.), [para. 24].

Maplehurst Bakeries Inc. v. Brampton (City) et al., [1999] O.A.C. Uned. 150 (Div. Ct.), refd to. [para. 25].

Eastpine Kennedy-Steeles Ltd. et al. v. Markham (Town) et al. (2000), 131 O.A.C. 147 (Div. Ct.), refd to. [para. 26].

Niagara River Coalition v. Niagara-on-the-Lake (Town) (2010), 261 O.A.C. 76; 2010 ONCA 173, refd to. [para. 29].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 30].

Toronto (City) v. R & G Realty Management Inc. (2009), 254 O.A.C. 66 (Div. Ct.), refd to. [para. 31].

Ottawa (City) v. Minto Communities Inc. (2009), 257 O.A.C. 207 (Div. Ct.), refd to. [para. 31].

Abdoulrab et al. v. Labour Relations Board (Ont.) et al. (2009), 251 O.A.C. 28; 2009 ONCA 491, refd to. [para. 34].

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, refd to. [para. 35].

Bele Himmell Investments Ltd. v. Mississauga (City), 1982 CarswellOnt 1946 (Div. Ct.), refd to. [para. 41].

Authors and Works Noticed:

Ontario, Planning for Employment in Greater Golden Horseshoe (May 2008), pp. 207, 208 [para. 40].

Counsel:

R. Andrew Biggart, for the appellant;

Steven A. Zakem and Patrick Harrington, for the respondent;

Stan Floras, for the Ontario Municipal Board.

This appeal was heard on October 26, 2010, at Toronto, Ontario, by Swinton, Nadeau and Harvison Young, JJ., of the Ontario Divisional Court. Swinton, J., delivered the following judgment on November 29, 2010.