) ) RICHMOND HILL NATURALISTS Moving Party – v. –, 2013 ONSC 7894

CITATION : Richmond Hill Naturalists v. Corsica Developments Inc., 2013 ONSC 7894 DIVISIONAL COURT FILE NO.: 358/13 DATE: 20131231 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) RICHMOND HILL NATURALISTS Moving Party – and – 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 )) )) )) )) )) ) ) ) ) ) ) ) ) ) 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. ) HEARD: December 9, 2013 HIMEL J.: [ 1 ] The Richmond Hill Naturalists (the “Naturalists”) seek leave to appeal to the Divisional Court a decision of Ontario Municipal Board (the “OMB”) (the “Board”) Chair Lynda Tanaka dated July 22, 2013, dismissing their Request for Review of the decision of Hearing Officer Vice-Chair Karlene J. Hussey, dated May 1, 2013, as amended on May 7, 2013, approving an amendment to the Official Plan of the Town of Richmond Hill (the “Town”).

The amendment was sought by Corsica Developments Inc. (“Corsica”) and will allow it to build a new residential subdivision over sections of open and wooded land on the David Dunlap Observatory lands (the “Observatory Lands”) that are located within the Town. Corsica and the Town oppose the motion for leave and ask that it be dismissed. [ 2 ] There were other parties before the Board but they did not appear on this motion and did not file materials. The Board itself was served but did not wish to participate in the hearing of the motion for leave nor take a position on the matters raised.

Factual Background [ 3 ] The Observatory Lands were acquired by the University of Toronto in 1932 as a gift from Jessie Donalda Dunlap whose husband David Alexander Dunlap was an astronomy enthusiast. The lands were donated for the purpose of housing an Observatory and an arboretum or botanical gardens. The 72 hectare site consists of an Observatory and related buildings, a 19 th century farmhouse, open fields, woodlands, and a wetland. The Observatory was opened in 1935 and houses the Great Telescope, the largest telescope in Canada.

Until recently the University operated a variety of research activities on the site, established another observatory for radio astronomy, set up tree plantations on the property to reduce light pollution, and continued to use the property as a living laboratory. The property is the site of historic scientific achievements, including the first visual confirmation of the existence of black holes. [ 4 ] In 2007, the Town published a Notice of Intention to Designate approximately 50% of the Observatory Lands as a protected cultural heritage landscape under

section 29 of the Ontario Heritage Act, R.S.O. 1990, c. O.18. In 2008, Corsica purchased the Observatory Lands from the University. Corsica objected to the proposed designation and argued that the protected cultural heritage landscape should be limited to the area in the immediate vicinity of the Observatory’s major buildings. [ 5 ] The Naturalists are a community organization dedicated to protecting the natural environment in Richmond Hill and

southern York Region. They, along with the Observatory Hill Homeowners’ Association, objected to the notice on the grounds that the entire property should receive protected status. The objections triggered a hearing before the Conservation Review Board (the “CRB”) (the “Review Board”). The Naturalists obtained full party status at the hearing which took place in 2009. [ 6 ] The hearing before the CRB was to determine whether all or part of the Observatory Lands should be designated as a protected cultural heritage landscape.

Corsica led expert evidence that the area of proposed cultural heritage landscape should be much smaller than that proposed by the Town. The Town and the Naturalists led evidence from various experts as well. The parties agreed that the main Observatory buildings, which are located on the western side of the lands, deserved protection as well as the land in the immediate vicinity. They disagreed on whether any portion of the remainder of the lands should be protected. [ 7 ] The CRB hearing lasted seven days, following which the CRB issued a 58 page report including findings and recommendations.

The Review Board received expert opinion evidence from Michael McClelland, an architect with experience in cultural heritage planning. He said that the cultural heritage landscape proposed by the Town was “vague and overly inclusive”, and he proposed that the protected area be limited to four discrete zones. He rejected the suggestion that buffers should be required between newly developed areas and the protected heritage area. The CRB considered all of the evidence before it against the criteria in Ontario Regulation 9/06 and

section 2.6.1 of the Provincial Policy Statement, 2005 , which defines “cultural heritage landscapes” and mandates their conservation. [ 8 ] The CRB found that the entire western portion of the Observatory Lands had cultural heritage value and deserved protection under the Regulation. It recommended that more than 50% of the property be designated as a “cultural heritage landscape”, including an additional 150 meters to the east of the area proposed for designation by the Town. It rejected Mr.

McClelland’s evidence, describing the heritage value of the site as “exceptional” and so significant that the site warranted a provincial designation under s. 34 of the Heritage Act . Corsica did not apply for judicial review of this recommendation. On September 29, 2009, the Town passed By-law 100/09 implementing the recommendation of the CRB. The By-law designated the western portion of the site as an area of protected cultural heritage. [ 9 ] In 2010, the Town adopted an Official Plan which designated the property as “Neighbourhood” and “Natural Core”, statuses permitting of low density residential uses.

Corsica submitted an application to amend the Official Plan and designate a substantial portion of the Observatory Lands as suitable for residential development, including an area within the protected “cultural heritage landscape.” It also brought applications for an amendment to the relevant zoning by-law and for approval of a plan of subdivision which was to include the construction of 833 residential units on the site.

The Town did not make a decision on the applications within the prescribed statutory time period and Corsica then appealed to the OMB on October 27, 2010. [ 10 ] The Naturalists, as well as a number of other parties, participated in the process before the OMB. There was a pre-hearing conference on June 2, 2011, and the Board determined that mediation would be constructive. Corsica and four parties participated in the mediation process. The Naturalists did not.

This resulted in Minutes of Settlement in which the parties agreed to a revised version of the Official Plan amendment (“OPA 270”) and Corsica sought approval for this amendment from the OMB. The parties’ revised proposal contemplated 531 residential units, 250 of which were within the cultural heritage landscape. One cluster was northeast of the Observatory buildings and another within the 150 meter buffer zone. A new “cultural heritage precinct” was proposed that was much smaller than the cultural heritage landscape designated in the By-law.

The Minutes were circulated to the parties who were asked for their positions. All the parties signed on or registered no objection to OPA 270 except for the Naturalists. [ 11 ] A hearing took place before the OMB over 12 days where the Naturalists, still objecting to the settlement, presented expert evidence through six witnesses. Corsica called evidence from five experts including Michael McClelland, the same expert whose evidence was led before the CRB. He took issue with the CRB’s decision and testified that only a smaller area of the site was deserving of heritage protection.

Decision of the OMB Hearing Officer [ 12 ] The Hearing Officer released her decision on May 1, 2013, allowing the appeal and approving OPA 270. On the issue of the proposed development’s encroachment on the cultural heritage landscape, she concluded that the “issues advanced by the Naturalists… are unsubstantiated” and that there was “little evidence to support the Naturalists’ concern that the policies contained in OPA 270 are inadequate to protect the cultural heritage attributes on the subject site.” The Hearing Officer accepted Mr.

McLelland’s evidence and found the concerns of the Naturalists were based on conjecture and insufficient review. The Board held that OPA 270 represents good planning and was in the public interest. The Request for Review [ 13 ] The Naturalists did not seek leave to appeal the Hearing Officer’s decision. Instead, they commenced a written Request for Review before the Board under s. 43 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28. One of two grounds for review argued by the Naturalists was that the Hearing Officer erred in approving development of lands that were within the cultural heritage landscape.

The Request for Review was decided by the OMB Chair who held that: (1) the CRB is “not a decision-making body, but only a reporting and recommending body” and its determinations were not binding on the OMB; (2) the Town now supports the development application; (3) “[h]eritage planning does not foreclose new development but requires that the proposal is integrated with the existing heritage attributes”; and (4) the Review Request was not an opportunity to re-argue a case that had already been heard during a 12 day hearing.

She dismissed Request for Review without soliciting a response from the other parties, as is contemplated in the OMB’s Rules of Practice and Procedure . The Naturalists now bring a motion for leave to appeal the Request for Review decision. Positions of the parties on this Motion for Leave [ 14 ] The Naturalists say that by bringing the application for amendment of the Official Plan to the OMB, Corsica was directly challenging the factual findings of the CRB. Corsica sought to have the OMB designate portions of the protected cultural heritage landscape as residential and open to residential development.

Corsica called the same cultural heritage expert whose evidence was rejected by the CRB. That witness, Michael McClelland, testified that the CRB’s reasons were “arbitrary” and the area of the protected

cultural heritage landscape was unnecessarily large. The Hearing Officer accepted that opinion evidence and approved OPA 270, holdingthat residential development within the protected cultural heritage landscape was consistent with the cultural heritage of the site. [15] The Naturalists argue that the decision was contrary to factual findings in the 2009 reasons of the CRB and that the OMBHearing Officer gave no reason for departing from the findings of the CRB. Accordingly, the Naturalists brought a Request for Reviewof the Hearing Officer’s decision under s. 43 of the Ontario Municipal Board Act.

The Chair dismissed the Request for Review on thegrounds that, among other things, the OMB was not bound by findings of the CRB. [16] The Naturalists take the position that there is good reason to doubt the correctness of the decisions of the Hearing Officer andthe OMB Chair. They submit that, in failing to give consideration to the factual findings of the CRB, the Hearing Officer and the OMBChair permitted: (

a) a collateral attack on the findings of the CRB; (

b) an abuse of process; and (

c) the re-litigation of issues that hadbeen adjudicated by the CRB. They argue that if Corsica objected to the CRB’s recommendations or findings, or the Town’s decision toimplement the By-law, then it should have sought judicial review of those decisions. [17] Corsica, supported by the Town, takes the position that the Naturalists did not seek leave to appeal the original decision andnow wish to appeal the Request for Review decision. The appellants’ focus on the alleged errors of the Hearing Officer is irrelevant.

They also argue that the Naturalists did not raise the proposed questions of law during the original hearing or on the Request forReview. They did not question the authority of the OMB to consider the case nor argue issue estoppel. [18] Corsica further argues the Naturalists have not provided a valid reason to question the reasonableness or even the correctnessof the OMB Chair’s decision. They submit that the alleged errors do not involve questions of law and do not transcend the interests ofthe parties or raise issues of sufficient importance to warrant the attention of the court.

Their concerns are site specific and not supportedby any public authorities, resident groups or other stakeholders. They submit that the OMB decisions are entitled to significantdeference. Moreover, the Board has complete discretion to dismiss a Request for Review under s. 43 of the Ontario Municipal BoardAct. [19] The respondents argue that the CRB does not have jurisdiction to make a binding final decision but only to report and makerecommendations to a municipality on whether a property should be designated under s. 29 of the Heritage Act. It is a municipalcouncil’s decision that is final.

The OMB is also not bound by such findings. They submit there is no inherent conflict between heritageconservation and land use planning, and no basis for the assertion that residential development can never occur within an area designatedas a cultural heritage landscape. [20] Finally, the respondents argue that it was appropriate for the Chair in her Review decision and, to the extent that it is relevant,the Hearing Officer in the original decision, to give weight to the fact that the Town is supportive of the amendment.

The Test for Leave to Appeal [21] Section 96(1) of the Ontario Municipal Board Act provides that an appeal from a decision of the Board lies to the DivisionalCourt only on a question of law and with leave of the court. In Mod-Aire Homes Ltd. v. Bradford (Town) (1990), (ONSC), 72 O.R. (2d) 683 (Div. Ct.), at para. 31, the court held that the moving party must show the following on a leave application: (

a) the proposed appeal raises a question of law; (

b) there is good reason to doubt the correctness of the decision of the OMB with respect to the question of law raised; and (

c) the question of law raised is of sufficient general or public importance to merit the attention of the Divisional Court. [22] In considering this question, this court has traditionally held that a good reason to doubt the correctness of the decision doesnot mean that the decision is wrong or probably wrong. It is sufficient to show that the correctness of the order is open to very seriousdebate: see Ash v. Corp. of Lloyd’s (1992), (ON SC), 8 O.R. (3d) 282 (Div.

Ct.). [23] Recently however, on motions for leave to appeal this court has tended to factor in the standard of review the court would beexpected to apply should leave to appeal be granted in its application of the leave test. As Justice Penny put it in Aurora (Town) v.Sikura, 2011 ONSC 7642 (Div. Ct.), at para. 3: While the court does not need to apply a standard of review directly when considering a motion for leave to appeal, the court hearing themotion should be conscious of the fact that the Board has expertise in both planning matters and with respect to its “home” statute, thePlanning Act, R.S.O. 1990, c.

P.13. Whether the impugned portions of the Board’s decision fall within the ambit of that expertise, andwhether the standard of review is likely to be reasonableness or correctness, assists in assessing whether there is substantial doubt aboutthe correctness of the Board’s decision. [24] Similar to previous

interpretations of the leave test, this does not mean that the party seeking leave must show the decisionunder appeal was unreasonable or probably unreasonable. Rather, they must show that the reasonableness of the decision is open to veryserious debate. This modification of the test ensures proper deference to the OMB is shown at the leave stage: Train v. John Weir, et al.,2012 ONSC 5157 (Div.

Ct.), at paras. 5-6. [25] The Supreme Court has held that “[r]easonableness is concerned mostly with the existence of justification, transparency andintelligibility within the decision-making process … [and] also with whether the decision falls within a range of possible, acceptableoutcomes which are defensible in respect of the facts and law”: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, atpara. 47; Train v. Weir, 2012 ONSC 5157, at para. 7.

The responding parties take the position that even more deference should beshown here because the Board possesses considerable discretion under s. 43 of the Ontario Municipal Board Act on Request for Reviewdecisions. Does the proposed appeal raise a question of law?

[26] The Naturalists argue that the two issues of law raised in this application are: (1) whether the Hearing Officer and the Chairerred in not finding the OMB was bound by the factual findings of the CRB; and (2) whether the Hearing Officer and the Chair erred innot granting any degree of deference to the factual findings of the CRB.

They argue that the decisions of the Hearing Officer and theChair are contrary to the abuse of process doctrine and the operation of issue estoppel such that factual findings of the CRB are entitled todeference. [27] As noted by the respondents, this is a motion for leave to appeal the Request for Review decision, not the original decision ofthe Hearing Officer. The 15-day time limit for issuing a Notice of Appeal of the original decision under Rule 61.03(1)(

b) of the Rules ofCivil Procedure has come and gone. While it is necessary to consider the Hearing Officer’s decision in order to guide the assessment ofthe alleged errors of the Chair, the focus on this appeal must remain on the Request for Review decision of the Chair: see Watt v. ClassicLeisure Wear Inc. (2008), 43 M.P.L.R. (4th) 274 (Ont. S.C. – Div. Ct.), at para. 20. [28] On the issue estoppel argument, the decision of the Supreme Court in Penner v. Niagara (Regional Police Services Board),2013 SCC 19, 49 Admin.

L.R. (5th) 1, provides the court’s most recent discussion of that doctrine and sets out its purpose at para. 28: Relitigation of an issue wastes resources, makes it risky for parties to rely on the results of their prior litigation, unfairly exposes partiesto additional costs, raises the spectre of inconsistent adjudicative determinations and, where the initial decision maker is in theadministrative law field, may undermine the legislature’s intent in setting up the administrative scheme.

For these reasons, the law hasadopted a number of doctrines to limit relitigation. [29] The court outlined the legal framework governing the exercise of this discretion as set out in Danyluk v. AinsworthTechnologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at paras. 24, 54. In Danyluk and in Angle v. Minister of National Revenue (SCC), [1975] 2 S.C.R. 248, the Supreme Court held that an adjudicative body has discretion to bar the re-litigation of anissue decided in a previous proceeding where the following preconditions are met: (

a) the same question was decided in the previous proceeding; (

b) the judicial decision which is said to create the estoppel was final; and (

c) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which estoppel is raisedor their privies. [30] In Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, the Supreme Court reviewed these samepreconditions for issue estoppel and noted that it is a branch of res judicata which precludes the re-litigation of issues previously decidedin court in another proceeding.

The court went on to discuss the inherent and residual discretion of courts to prevent an abuse of thecourt’s process where the circumstances are so oppressive and unfair that to allow the litigation to proceed would violate principles asjudicial economy, consistency, finality and the integrity of the administration of justice: see para. 37. [31] Even when the technical requirements of issue estoppel are not met, the court has inherent and residual discretion to prevent aparty from re-litigating an issue that has already been decided.

In the context of a criminal proceeding, the Supreme Court has writtenthat “the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts”: see C.U.P.E. Local 79,at para. 43.

In Penner the court looked at the opposite side of that coin and held, at para. 8, that “[t]he flexible approach to issueestoppel provides the court with the discretion to refuse to apply issue estoppel if it will work an injustice, even where the preconditionsfor its application have been met.” [32] In the case at bar, the moving party argues that while there is not exact mutuality between the parties involved at the CRB andthe OMB, the other conditions of issue estoppel are satisfied.

The Naturalists submit that the same issue of material fact was at stake inboth hearings – namely the delineation of boundaries of cultural heritage landscape. They argue that the determination of boundarieswas a key component of both proceedings and that the Hearing Office’s decision to accept Michael McClelland’s opinion was a rejectionof the CRB’s findings on the delineation of the cultural heritage landscape. Further the Naturalists argue that the CRB’s factual findingswere judicial as they were made following a seven day adversarial hearing.

They also submit that the decision of the CRB was final andwas implemented by the Town when it passed the By-law. Corsica could have applied to judicially review that decision but chose not todo so. The OMB hearing was not an appeal. [33] The moving party also argues that there is strong reason to believe the provincial legislation did not intend for otheradministrative bodies to ignore CRB findings.

Although not binding on municipalities, CRB reports must be considered and the OntarioHeritage Act is to be given a “broad liberal construction.” The CRB is a specialist tribunal dealing exclusively with matters of culturalheritage and its decisions are entitled to deference: ADMNS Kelvingrove Investment Corporation v. Toronto (City), [2010] O.M.B.D. No.282 (O.M.B.) at paras. 93; leave to appeal dismissed reported at [2010] O.J. No. 4811 at para. 18. The OMB did not give deference tothe CRB’s decision or provide a reason for departing from it. This contrasts with the case of Friends of Eden Mills Inc. v.

Eramosa(Township) (1998), (ON SCDC), 111 O.A.C. 81, where the Divisional Court affirmed a municipality’s decision tode-designate and demolish a bridge as a “heritage property” but only after the municipality had given considerable reasons for doing sowhich included that the bridge posed a public safety concern. [34] Finally, the Naturalists submit that the appeal raises issues of public importance regarding the relationship between two co-ordinate tribunals: the status of the CRB factual findings in OMB hearings raises a question of law that extends beyond the case at bar.The OMB Chair’s decision that CRB factual findings are advisory only is a significant issue to be determined by the court. [35] In considering the question of issue estoppel, I conclude the following: (

a) Same question: The CRB review was undertaken to assess the cultural heritage value or interest of a property being proposed fordesignation under s. 29 of the Ontario Heritage Act. The CRB noted in its report that it was not addressing “any planning applications orissues that are under the jurisdiction of the Planning Act”, and that “such issues as future use and development fall outside of the scope ofthe Act”. Ultimately, it made recommendations to the Town’s council. On the other hand, the OMB hearing officer and Chair were

considering an application to amend the Official Plan under the Planning Act which involved determining what constituted good land useplanning in the public interest. In evaluating a proposed Official Plan amendment one of the factors to be considered, along with a hostof other factors, is the conservation of significant cultural heritage resources. An Official Plan amendment permitting residentialdevelopment while preserving a cultural heritage landscape at the same time may be made. The goals of good land use planning andconserving cultural heritage landscapes do not necessarily conflict.

The issues before the CRB and the OMB were not the same. I findthe decision of the OMB is not a collateral attack on findings of the CRB. (

b) Judicial decision: On the issue of whether the CRB recommendation was judicial, I note that the hearing before the CRB wasadversarial and took place over seven days. A number of witnesses were called and documents produced. However, the culmination ofthe hearing was a written report which was sent to the Town’s council setting out findings and recommendations about whether theproperty should be designated a cultural heritage landscape. The role played by the CRB was advisory only. The recommendation wasconsidered by council which passed the By-law designating the cultural heritage landscape.

The Town could have accepted or rejectedthe recommendation of the CRB. The recommendation was not final. (

c) Same parties: The parties to the CRB and the OMB were not exactly the same. [36] In

summary, I am not satisfied that the preconditions for issue estoppel are made out. Even if they had been established, thisis a case where there is “a significant difference between the purposes, processes or stakes involved in the two proceedings” such that aninjustice may arise from using the results of the proceeding before the CRB to preclude the subsequent proceedings before the OMB: seePenner, at para. 42.

The circumstances of this case do not fall in that category of cases where, because the proceedings are so oppressiveor unfair, the court should in the interests of justice exercise its inherent jurisdiction to prevent an abuse of the court’s process. The OMBwas not bound by the CRB’s findings nor did it err by failing to give deference to those findings and, accordingly, the proposed appealdoes not pose a question of law.

Is there good reason to doubt the correctness of the decision? [37] In the circumstances of this case, I do not find that there is good reason to doubt the correctness of the decision of the Chair. The doctrines of abuse of process, issue estoppel or collateral attack were never put to the Chair by the applicant and were not arguedbefore the Hearing Officer. Even if they had been raised at the proceedings below, for the reasons given above I am not persuaded thatthe preconditions for issue estoppel or abuse of process would be made out.

Nor is this the sort of case where the court should exerciseits discretion as a matter of fairness and equity because the matter was previously determined in another proceeding, especially since thearguments of abuse of process and issue estoppel were not raised before the OMB. [38] The Board has wide discretion under s. 43 of the Ontario Municipal Board Act to rehear or review, rescind, change, alter orvary any decision made by the Board: see Shanahan v. Russell (2000), (ON CA), 52 O.R. (3d) 9 (C.A.), at paras.10-15.

The Rules of the OMB also confirm the broad discretion given to the Board in deciding whether to grant or dismiss the ReviewRequest. The Chair gave reasons why she was not satisfied that the Naturalists had raised a convincing and compelling case that theHearing Officer had made an error. [39] The fact that the Hearing Officer did not explain why she accepted the opinion of Michael McClelland when his opinion wasnot accepted by the CRB is not a question of law nor is it an error. She was entitled to weigh the evidence before her and make findingsof credibility concerning all the witnesses who testified.

Neither she nor the Chair was required to accept the recommendation of theCRB. The Review Decision did mention that the CRB “is not a decision-making body but only a reporting and recommending body”.The Chair of the OMB is also chair of a cluster of five tribunals which include the OMB and the CRB under Ontario Regulation 126/10and sections 15, 16, 17 and 20 of the Adjudicative Tribunals Accountability, Governance, and Appointments Act, 2009, S.O. 2009, c. 33,Sch. 5. As such, she is aware of the respective responsibilities and the jurisdiction of each tribunal.

The factual findings of the HearingOfficer, which were accepted by the Chair, were based on an assessment of the evidence following a 12 day hearing. There is nothing inthe Chair’s decision that could be characterized as an error of law. The Chair set out the reasons for refusing the review and in my viewthere is no basis to doubt the correctness of that determination.

Is the matter of sufficient importance to warrant the attention of this court? [40] Even if this case raised a question of law and there was good reason to doubt the correctness of the decision, this is not a casewhich raises questions of sufficient importance to warrant the attention of this court. The Ontario Heritage Act provides municipalitieswith the power to designate properties to be of historic or architectural or cultural value or interest in order to protect and preserve theheritage of Ontario.

That important purpose must be balanced against the individual property rights of land owners and, with carefulplanning, both interests can be maintained. The case is site-specific and has no general application. The other public authorities andstakeholders do not support the position taken by the applicant. Finally, it follows from my conclusion that this appeal discloses noquestion of law that the case does not raise any conflict between the respective jurisdictions of two administrative tribunals concernedwith land use in the province.

Summary [41] In conclusion, the proposed appeal fails the test for leave as it does not raise a question of law. Even if it did raise a questionof law, there is no good reason to doubt the correctness of the Request for Review decision and the proposed appeal does not involve aquestion of sufficient importance to merit the attention of this court. Result [42] For the above reasons, the application for leave to appeal to the Divisional Court is dismissed. As requested by the parties,

submissions on costs shall be in writing according to the following timetable: the respondents Corsica, Town of Richmond Hill and David Dunlap Observatory Defenders Inc. shall file submissions by January 17, 2014 and the moving party, Richmond Hill Naturalists shall file responding submissions by January 28, 2014. HIMEL J. Released: December 31, 2013 CITATION : Richmond Hill Naturalists v. Corsica Developments Inc. v.

Town of Richmond Hill et al. and Ontario Municipal Board, 2013 ONSC 7894 DIVISIONAL COURT FILE NO.: 358/13 DATE: 20131231 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: RICHMOND HILL NATURALISTS Moving Party – and – CORSICA DEVELOPMENTS INC., TOWN OF RICHMOND HILL, REGIONAL MUNICIPALITY OF YORK, TORONTO REGION CONSERVATION AUTHORITY, THE DAVID DUNLAP OBSERVATORY (DDO) DEFENDERS INC. AND ONTARIO MUNICIPAL BOARD Respondents REASONS FOR JUDGMENT HIMEL J. Released: December 31, 2013