The Court dismissed an appeal by the City of Ottawa which had argued that the Ontario Municipal Board had erred in failing to give deference to the decision of City Council, regarding its rejection of a development proposal. The Court held that section 2.1 of the Planning Act, which required the Board to “have regard to” Council’s decision, suggested that minimal deference was owed to Council’s decision. In the result, the Board did not fail in its duty imposed by section 2.1.

26. January 2010 0

Administrative law – Decisions of administrative tribunals – Municipal councils – Municipalities – Planning and zoning – Have regard to – definition – Judicial review – Standard of review – Reasonableness simpliciter – Compliance with legislation

Ottawa (City) v. Minto Communities Inc., [2009] O.J. No. 4913, Ontario Superior Court of Justice, November 13, 2009, P.T. Matlow, J.C. Kent and D.R. Aston JJ.

The respondent, Minto Communities Inc., had applied to the City of Ottawa to amend part of Ottawa’s Official Plan. Following an extensive public process stretching over many months, in which Council received and considered input from many different sources, Council passed a motion refusing to amend the Plan.

The Respondent appealed Council’s decision to the Ontario Municipal Board, as of right, under section 22(7) of the Planning Act. The Board allowed the respondent’s appeal, following an 8-week hearing, during which the Board heard from expert witnesses, lay witnesses and members of the community.

The City appealed to the Court on a question of law under section 96 of the Ontario Municipal Board Act. It was granted leave to appeal on a single question: Did the Board err in failing to have regard to the decision of Council pursuant to section 2.1 of the Planning Act? That section requires the Board, when making a decision under the Act that relates to a planning matter, to “have regard to” Council’s decision and any supporting information and material that the Council considered in making its decision.

The Court first considered the appropriate standard of review to be applied to the Board’s decision. The standard of review on appeals under section 96 of the Ontario Municipal Board Act had been determined by the Ontario Court of Appeal in London v. Ayerswood. Questions of law that engage the specialized expertise of the Board, such as the interpretation of its own statute, attract a standard of reasonableness. In this case, 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. Accordingly, the standard of review was reasonableness.

The City argued that, in the context of section 2.1 of the Planning Act, the words “have regard to” imposed an obligation on the Board to afford considerable deference to municipal council’s land planning decisions. It argued that the Board, as an appellate body, ought to apply the deferential standard of “reasonableness” described in Dunsmuir v. New Brunswick. The majority held that the legislature had used language that suggested minimal deference when choosing the words “have regard to”, considering the many other expressions it could have used to signal the level of deference suggested by the City. The traditional role of the Board, and the broad powers it exercises, should not be altered radically without a more clear and specific expression of legislative intent.

The Board had an obligation to scrutinize and carefully consider the Council’s decision, as well as the information and material that was before Council. The Board ought to carefully and explicitly consider the specific reasons expressed by Council when refusing to adopt requested planning amendments. However, the Board does not have to find that the Council’s decision is demonstrably unreasonable to arrive at an opposite conclusion. The Board had met that standard in this particular case.

A dissenting judgment would have allowed the appeal, setting aside the decision of the Board and restoring the decision made by Council. The Board had failed to carry out its statutory duty as an appellant tribunal, in that it failed to apply a standard of review to Council’s decision, instead simply substituting its own decision for that of Council because its views on the merits of the application were different. Council’s decision was overwhelmingly reasonable, and should have been upheld by the Board. The minority held that these were errors of law that clearly affected the outcome of the appeal.

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