) ) CITY OF OTTAWA Responding Party/Respondent – v. –, 2013 ONSC 5062

CITATION : City of Ottawa v. Ottawa Home Builders Association, 2013 ONSC 5062 DIVISIONAL COURT FILE NO.: 13-1901 DATE: 20130731 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT T.D. Ray, J. BETWEEN: ) ) CITY OF OTTAWA Responding Party/Respondent – and – GREATER OTTAWA HOME BUILDERS ASSOCIATION, HASLETT CONSTRUCTION INC., MARINO GROUP (OTTAWA) LTD., SURFACE REAL ESTATE DEVELOPMENTS INC. AND UNIFORM URBAN DEVELOPMENTS AND PRESTWICK BUILDING CORP. Moving Parties/Appellants ) ) ) ) ) ) ) ) ))))))))) Bruce Engell, and Tim Marc, Counsel for the Responding Party/Respondent. Michael S.

Polowin, and Kristina Mahon, Counsel for the Moving Parties/Appellants ) ) ) HEARD: July 3 and 29, 2013 [ 1 ] This is a motion for leave to appeal to the Divisional Court the decision of the Ontario Municipal Board (“OMB”), PL120666, dated March 8, 2013, on the ground that following a motion by the Moving Parties, it erred in failing to strike out certain sections of a City of Ottawa By-Law 2012-147, and in finding that certain sections of a City of Ottawa By-Law were within its municipal authority.

Standard of Review [ 2 ] An appeal from a decision of the OMB is to this court on a question of law providing leave is granted by a single judge. [1] The standard of review of decisions of the OMB when interpreting the Planning Act is reasonableness [2] . It is a deferential standard which has been consistently applied to decisions of the OMB when interpreting the Planning Act.

Since this proposed appeal involves a decision of the OMB concerning the validity of a zoning by-law in the context of s. 34 of the Planning Act in contradistinction to s. 41, it falls squarely within the existing jurisprudence that such issues are within the special experience of the tribunal and deserving of the reasonableness standard. [3] The test is whether the decision is outside any margin of appreciation or range of acceptable outcomes that deference requires. [4] Test on a Motion for Leave [ 3 ] Because of the deferential standard of reasonableness to be applied to appeals from the OMB, the issue of ‘correctness’ applied by earlier decisions on a leave application must be interpreted to have given way to the reasonableness standard [5] .

The test would therefore be framed to include an analysis of whether there is ‘good reason to doubt the reasonableness of the decision being appealed’ [6] . Secondly the test must include a determination of whether the issue is sufficiently important to require the attention of the Divisional Court.

While the test in the Rules of Civil Procedure has been referenced from time to time on leave motions from decisions from the OMB, it is stated to be explicitly for leave from an interlocutory decision of another Superior Court Judge. [7] [ 4 ] The test on a motion for leave from a decision of the OMB where the reasonableness standard applies is: a. whether there is good reason to doubt the reasonableness of the decision, b. whether the question is an important one; and finally, on this motion an additional issue raised by the respondent, c. whether the appeal is premature by reason of the absence at this stage of a full evidentiary record.

Background [ 5 ] This zoning by-law was passed by the City of Ottawa May 8, 2010, and in general terms included provisions that were intended

to regulate in-fills in certain neighbourhoods where it was thought greater density was to be encouraged. While the zoning by-law was stipulated to apply to certain areas of the City, it also was stated to only apply to new construction after May 8, 2010. [ 6 ] The appellants and others appealed to the Ontario Municipal Board to seek to set aside the by-law. The breadth of that appeal is not material on this motion for leave, since the appellants brought a motion before a single member of the OMB on a question of law in which the jurisdiction of the City of Ottawa to pass the by-law was challenged.

It was argued that the provisions in the by-law were outside the provisions of s. 34 of the Planning Act , and therefore outside the competence of the respondent. The motion before the OMB was treated as being analogous to rule 21 of the Rules of Civil Procedure in that no evidence was to be filed on the motion. In point of fact, considerable evidence was filed on the motion including affidavits from experts and cross-examinations, although the motion was treated as being only one of statutory

interpretation. [ 7 ] Member Denhez rendered his decision March 8, 2013. In considering the scope of s. 34, he held that certain provisions of the by-law were within the City’s jurisdiction, certain provisions were not, others were sent back to the City to reconsider, and finally one provision was deferred. He ordered that the provisions sent back were to be reconsidered, revised and approved by resolution of Council and then to come back to the OMB without the need for further consideration or consultation.

The Position of the Appellants [ 8 ] The appellants contend in general terms that the scope of the by-law is more in keeping with site plan controls, but certainly outside the language of s. 34.

They also contend that the City has no jurisdiction to require compliance by date as opposed to geographic area since that would have the effect of creating different rules for different properties within the same geographic area. [ 9 ] More specifically the appellants argue that since ‘external features’ was removed from s. 34 (zoning) of the Planning Act in 1983, and then added to s 41 (Site Plan) in 2006, that the rules of legislative

interpretation require a conclusion that after 1983, municipalities were not competent to regulate aesthetic features in a zoning by-law. They further argue that external features includes not only aesthetic features but also ‘streetscapes’, and the consideration of ‘character’. The Position of the Respondent [ 10 ] The respondent contends that the OMB decision is well within the range of reasonable outcomes which were open to the Board to decide, and in any event was clearly within the permissible language of the s. 34 of the Planning Act .

It contends that there is no such prohibition against dealing with aesthetic features, character or streetscapes in s. 34 of the Planning Act , and in many cases, there may be an overlap. He contends that the decision is clearly within a range of acceptable outcomes and therefore the motion for leave should fail. He also argues that in any event, the appeal is premature since there is not a complete record available, that the matter before the OMB should be seen through its course, and then be available for review with a complete record. OMB Decision of M.C.

Denhez, March 8, 2013 [ 11 ] The appellants’ motion was for a determination of a law that certain provisions of By-law 2012-147 of the City of Ottawa are beyond the authority of the City pursuant to the Planning Act .” It was described as a bifurcation of the appeal before the OMB since the motion dealt only with the legal issue. [ 12 ] He noted in his reasons that the appellant had proposed “jurisdictional challenges to municipal zoning powers on 12 topics, in three categories methodology, subject matter and intent .” [8] However, the OMB disagreed with the respondent’s position that the motion should await a full evidential record, and agreed with the appellants that if portions of the by-law were found to be beyond municipal authority that a hearing on the planning merits would be unnecessary.

However, he accepted the position of the respondent that if portions of the by-law were found to be beyond the jurisdiction of the respondent that it should be dealt with as a package and sent back to the respondent for consideration. [ 13 ] The appellant acknowledged that his argument ran counter to “countless by-laws across Ontario (some of which existed for years). “And”, he added, “they were all illegal”” [9] [ 14 ] The OMB further noted that in dealing with the issues, its determination would be based only on “statutory

interpretation and first principles”. [ 15 ] Of the various questions contained in the by-law which were raised by the appellant, the OMB found five to be within the respondent’s jurisdiction, one it found no authority, one it deferred for a hearing on the merits, and four it sent back to the respondent for further consideration because of concerns about proper statutory authority.

Finally, it disagreed with the appellants’ contention that matters of aesthetic concern were excluded from municipal consideration as part of the zoning process. [10] [ 16 ] The questions which were sent back to the respondent for further consideration were because the OMB “was not satisfied of proper statutory authority”, and on a specific complaint by the appellant concerning the by-law noted “ it would be premature for the Board to speculate now on whether (the) eventual wording would offend the Act’s protection of non-conforming rights.

The Board will consider the matter at a later date, in light of any new wording that the City proposes .” [11] Analysis Serious doubt [ 17 ] The reasonableness test arises out of deference that is owed to decisions of the OMB when interpreting its home statute – the Planning Act - and requires a consideration of the range of possible outcomes and whether the decisions of the OMB fall outside the margin of appreciation.

On this motion, I must consider not whether the decision is reasonable or whether I would agree or disagree, (which is for the panel to determine if I were to grant leave) but whether I have good reason to doubt the reasonableness of the decision. Is the decision within a range of acceptable outcomes?

[ 18 ] It is the decision that is the subject of the appeal not the reasons. The reasons are the reasoning pathway to the decision reached. As noted below, the process is not complete since the language of the by-law is under reconsideration. Seriousness [ 19 ] There is little doubt that the scope of s.34 of the Planning Act which animated the OMB decision concerning the by-law’s validity may have wide reaching consequences.

In declaring as he did on the motion that many by-laws in Ontario are illegal, the appellant left no doubt that as far as they were concerned, the issues went far beyond the interests of the parties. The parties agree that this appeal addresses important issues. I am satisfied that this part of the test has been met. Premature [ 20 ] The courts have generally been reluctant to hear appeals in interlocutory situations where a full record is not available, and have preferred to await a full evidentiary record.

However, in situations where a pure matter of law may be determined without an evidentiary record, then in those rare situations, the appeal should proceed. [12] The OMB acknowledged that the motion before it was a matter of law only, without the need of an evidentiary record.

On that question alone, it seems that a full evidentiary record in the sense of a hearing on the merits is not required. [ 21 ] However, to permit the appeal to go forward would inevitably give rise to a piecemeal approach since while certain portions of the by-law were found to be within the jurisdiction of the respondent, those portions that were sent back for reconsideration because of the doubt of the OMB about jurisdiction will be unclear until the respondent’s reconsideration is complete and forwarded to the OMB in accordance with its direction.

In other words, the final language of the by-law is not yet known. It is also true that any changes or revisions by the respondent will not necessarily be subjected to public scrutiny through a consultation process unless the respondent undertakes such a process. Again, until the revisions have been completed the respondent would not be in a position to determine the need for public consultation.

It would be speculative to anticipate what public consultation process would be necessary, and what if any order the OMB might make if and when the revised by-law comes back to the OMB. [ 22 ] Since the language of the by-law is in doubt until the respondent has completed its reconsideration, and since it is clearly a package, it would be unwise for an appeal to go forward until the record is complete. This is not to say that a full evidentiary record is required, but only that the language of the by-law that is being considered must be settled.

Conclusion [ 23 ] The respondent has satisfied me that the appeal is premature. The motion for leave is dismissed without prejudice to the appellant to renew the motion for leave, if so advised, once the language of the by-law is settled, and after further comment by the OMB. Costs [ 24 ] At the conclusion of argument, the parties advised that they had agreed that costs be fixed at $10,000 with costs to the respondent if leave is refused, and to the panel ‘in the cause’ if leave is granted. [ 25 ] As leave is refused, costs are awarded to the respondent fixed at $10,000.

Honourable Justice Timothy Ray Released: July 31, 2013 CITATION : City of Ottawa v. Ottawa Home Builders Association, 2013 ONSC 5062 DIVISIONAL COURT FILE NO.: 13-1901 DATE: 20130731

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: CITY OF OTTAWA Responding Party/Respondent -and- GREATER OTTAWA HOME BUILDERS ASSOCIATION, HASLETT CONSTRUCTION INC., MARINO GROUP (OTTAWA) LTD., SURFACE REAL ESTATE DEVELOPMENTS INC. AND UNIFORM URBAN DEVELOPMENTS AND PRESTWICK BUILDING CORP. Moving Parties/Appellants DECISION Released: July 31, 2013