Ottawa (City) v. Minto Communities Inc., 2009 Can LII 65802 (ON SCDC)
The City of Ottawa was the appellant, and the Minto Communities was the respondent. The Minto Community had applied to the City of Ottawa to amend the Manotick Secondary Plan that was part of the Official Plan of Ottawa city. The Council was against the amendment of the Plan, which led to the Minto Community filing for an appeal to the Ontario Municipal Board claiming the Planning Act stated that it was their right. The Board held in favor of the Community allowing the council to amend the Official Plan.
Issues presented in the case
The Minto Community wanted to get rid of some policies of growth management that was in the Manotick Secondary Plan and allow the construction of 1400 units to dwell in the Manotick Village. The Council of Ottawa City rejected amendment of the plan after reviewing evidence from the Minto Community and seeking expert opinions from the planning staffs and the City’s consultants. The Council stated that development especially in the rural areas was inconsistent according to the Provincial Policy Statement. The council also stated that the pace of growth the Minto Community wanted was in excess and inappropriate for the original plans for the Manotick Village. They added that the Village had poor transport networks that would cope with their proposed development, and the proposal would not help in protecting the environmental areas surrounding the village. The Minto Community later on appealed to the Ontario Municipal Board stating it was their right according to section 22(7) of the Planning Act.
Law
The Ontario Legislature had enacted the Planning and Conservation Statute Law Amendment Act, in 2007, which made some significant alterations to the Planning Act. The Planning Act had been amended to allow the right to appeal to the board from the decisions of the municipality that concerned the official plans and any amendments proposed. The Board used this new Planning Act and allowed the Minto Community to file their appeal. All the materials and evidence that the Council used to make their decisions were to be provided so that the Board could review and make their ruling.
Analysis of the case and the standard of review used by the board
The City of Ottawa requested the Board to apply appropriate standard of review before making their decision. The board therefore used reasonableness to make the decision by applying the statues issued in the Planning Act to make their decision. The City of Ottawa stated that the Board committed an error by not applying the standard of review in making their decision. The board had reviewed carefully the reasons made by the Council in refusing the application made by the Minto Community.
Decision made by the Board
After hearing the reasons that were given in the case and the Board concluded that the proposed plan of the Ontario Physique Association complied with the Ottawa Official Plan, and the Manotick Secondary Plan. The board also held that the OPA was mature and supported the proposal of development to comply with the interests of the public. The board therefore, ruled in favor of the Minto Community.
Opinion from the dissenting side
Matlow, J dissented the rulings stating that he would affirm the rulings made by the council of Ottawa City. He argued that the Minto Community wanted to accelerate development in the Manotick Village, which had poor infrastructure and the rate of growth was unreasonable according to the Provincial Plan.
Application of Dunsmuir
Privative clause;
A privative clause establishes an administrative tribunal of which all the decisions made by the tribunal are final. This implies that there will be no appeal in any other superior court regarding the decision. In the case above, OMB had been given the mandate an appellate jurisdiction. Therefore, its decision was final. After considering all the facts, its decision was indeed final and thus, the council had no option of appealing on the decision that had been arrived at. Therefore, there was the presence of the privative clause.Purpose of the tribunal as determined by interpretation of enabling legislation;
In 1996, an amendment was done in the Planning Act which introduced the right of appeal to the Ontario Municipal Board regarding the decisions on official plans and amendments. It was to act as an appeal body and not a decision maker. This implies that the Board was barred from being a primary decision making body.
Additionally, it was to deal strictly with the appeals on matters that had come from the council. The matters were to be on decisions that had already been made by the council and whether the arrived at decision was in line with Provincial Policy Statement as well as the official plan for the municipality.
However, in regards to this, the Board had a new requirement that was introduced among Bill 51 amendments. When the Board makes a decision under the new section 2.1, it should have regard to any decision made by the Council that relates to the planning matter, and also it should have regard to supporting information that the Council has.
The Board also has an option of referring the matter back to the Council if at any time new information is discovered during the appeal process and that the material could affect the decision made by the council. This is done to ensure that the council reconsiders its initial stand.
The nature of the question at issue
The Minto Community wanted to get rid of some policies of growth management that was in the Manotick Secondary Plan and allow the construction of 1400 units to dwell in the Manotick Village. The Council of Ottawa City rejected amendment of the plan after reviewing evidence from the Minto Community and seeking expert opinions from the planning staffs and the City’s consultants. The Council stated that development especially in the rural areas was inconsistent according to the Provincial Policy Statement. The council also stated that the pace of growth the Minto Community wanted was in excess and inappropriate for the original plans for the Manotick Village. They added that the Village had poor transport networks that would cope with their proposed development, and the proposal would not help in protecting the environmental areas surrounding the village. The Minto Community later on appealed to the Ontario Municipal Board stating it was their right according to section 22(7) of the Planning Act. Therefore, the question in regards to this appeal was whether Ontario Municipal Board made an error by failing to have regard on the decision made by the Council in pursuant of Section 2.1 of the Planning Act.Expertise of the tribunal.
Before arriving at its final decision, the tribunal made some consultation from 15 experts acting on behalf of the City, West Manotik Community and Minto. The evidence from the experts included transportation, planning on land use, traffic planning, landscape architecture, urban design, engineering community development and rural planning. The Board, having appellate jurisdiction was mandated to make an individual decision. Looking at the facts and applying reasonableness as the standard of review arrived at the decision in favor of Minto.
