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CITATION: The Corporation of the Town of Aurora v, Robert G. Sikura and Regional Municipality of York, 2011 ONSC 7642 , DIVISIONAL COURT FILL NO.: 435/11 DATE: 20111222
ONF I{ARIO SUPERIOR COURT OF JUSTICE DIVISIONAL., COURT BETWEEN:

'1'H R CORPORA'T'ION OF TIIE TOWN OF AURORA Applicant and ROBERT 0, SIKI)RA Respofideii t - and RFXi1C)NA1, MUNICIPALI'T'Y O1a YORK Respondent
) )

Ian J Lord, c:OU sel

tt

the Applicant

Torn I-Ialinski, counsel 1'tar the Respondent Sikura

HEARD); I)ocemhcr 14, 2011

PENNY J. REASONS FOR DECISION Ovevview and Issues

This is a motion for leave to appeal to the Divisional Court from the decision of the Ontario Municipal Board issued September 1, 201 1 (the Decision). The motion is brought under s. 96(1) c 1' the On/aria Municipal Board 4c'1 R.,S,O, 1990, c, O,21i and rule 61,03 of the Rifles of /i'll I'rocreclurce, importantly, section 96(1) of the Act provides that any appeal lies rrom the Board to the Divisional Court, with leave, only on a question of law. The Boards llndings 01` fact are not subject to appeal. [2] The test for obtaining leave, to appeal from a Board decision requires that:

11.1

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1 (2) (3)

the proposed appeal raises a question of law; the correctness of the Board's decision with respect to the question of law must be open to substantial doubt; and the point of law must be of sufficient importance to n erit the attention of the Divisional Court.

While the court does not need to apply a standard of review directly when considering a [3 1 motion for leave to appeal, the court hearing the motion should be conscious of the fact that the Board has expertise in both planning platters and with respect to its "home" statute, the Planning Act, R.S.O. 1990, c. P.13. Whether the impugned portions of the Board's decision fall within the ambit cal that expertise;, and whether the standard of review is likely to be reasonableness or correctness, assists in assessing whether there is substantial doubt about the correctness of the Board's decision, In September 2010, the Town of Aurora enacted a bylaw adopting an amendment to its 1j ollicial plain, referred to as OPA 73. (WA 73 covers a broad area in Aurora (approximately 2,35 developable hectares), including lands owned by Robert CL Sikura. OPA 73 was approved by the Council of the Regional Municipality of York in January, 2() 1 1. In February, 2011, Sikura lileci a notice of appeal of OPA 73, limited to one discrete parcel (approximately 6.9 heotaores, or 3% of the total developable land) of his land located in the northeast corner of the lands subject to OPA 73 (the Property), Sikura's was one of a number of appeals filed in connection with OPA 73, The appeals were all heard together and dealt with in the Decision. Only the Sikura appeal was allowed by the Board. The Town takes no issue with the Decision except as it relates to the Sikura appeal. The Region took no position and did not appear' on this im tion, [5] The Town seeks leave to appeal on three questions; (1) Did the Board exceed its jurisdiction by bailing to consider the public interest, given that the Decision may require local government Functions and responsibilities relating to the Property to be undertaken by an adjacent municipality? Did the Board commit breaches olnatural justice in approving residential uses on the Property and refusing access and servicing to the property From the Town by considering irrelevant considerations, failing to consider relevant considerations and by misdirecting itself, causing a wrongful interpretation and application of OPA 73? and Did the Board commit an error of law in failing to consider, apply or properly interpret certain sections of the Planning Act, including provincial policies promoting employment?

(2)

(3)

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1. Jurisdiction Re Access and Seryicint

The Board found that the Property was separated from the rest of the OPA 73 lands by a [6] watershed which had been designated as an environmentally protected area, The Board concluded that the Property should be designated for residential, not business, uses. The provision of access arid services to lie Property from within the Town, as originally contemplated by OPA 73, was also rejected, The Board concluded that, to avoid road crossings of the environmentally protected watershed, the Property should take access, and servicing only from the north, being lands already designated for residential uses but. located within the Town of Newni rket, The Town argues that the Decision will permit residential land uses on the Property [7j without access to road network or servicing capability from the l'own. The Town argues that the effect of the Decision will be to leave future residents on the Property reliant upon Newmarket for road access and services, The Town claims that the isolation of a residential community within the '/'own from its responsible municipal ,jurisdiction and admi isti'ation is "unprecedented" in a Board official plan appeal context. Counsel fhr Sikura argues that the Planning Ac! requires all decisions of the Town and [8] the Board to be consistent with a 2005 provincial policy statement requiring cross jurisdictional integration where desirable for planning purposes. For example, section 1 ,2, f of the policy suites that "a coordinated, integrated and comprehensive approach should be used when dealing with planning matters within municipalities, or which cross lower, single and/or upper tier municipal boundaries, including.., managing and/or promoting growth and development" and "infrastructure,' Section 1,6,5,3 states that "connectivity within and among transportation systems and modes should be maintained and, where possible, improved including connections which cross jurisdictional boundaries." Counsel for Sikura further points to evidence that was heioro the Board concerning the planning approval process for the Cedar Manor IIomes subdivision in Newmarket. located directly to the north of the Property. In that approval process, the towns of Aurora and Newmarket cooperated specifically on the issue of integrating the two properties fhr access and servicing purposes. The October 2009 Newmarket staff report. notes that:

1`x.1

the 'Town or Aurora have [sic] provided comments that indicate there is a parcel of' land in their 2C Planning Area that appears to be landlocked due to the presence of ca watercourse and Aurora's Natural Heritage System [this refers to the Property]. '/'his parcel directly abuts the south east area of the draft plat). Both the Town of` Aurora and the Region have requested that this plan provide a potential future access to the lands [again, a reference to the Property] in Aurora. This has been accommodated by extending Street "11" to the south boundary which terminates at a 0.3 in reserve. in other words, the Town of Aurora was already contemplating, before adopting OPA. 73, the very thing the Board directed to take place in the Decision.

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1101 I have care.( illy reviewed both the written and oral s u bmissions of the Town on this issue. I confess i am unable to find any clear articulation ol`an error of laiv. 1111 Read carefu lly, th e Town's submissions really consist of allegations that the Board failed to consider evidence put. before it by the Town at the hearing to the effect that the Property n eed not and should not be made reliant, for access and servicing, on another municipal ity. [I 2] This hearing involved a n umber of parties and lasted more than five weeks. The hearing comprised several hundred hours of oral evidence from 24 witnesses, thousands of pages of doeunielit: and other written and visual evidence and full written and oral argument from lawyer representing the various parties. [131 In my view, the Town, on this issue, has failed to establish the preconditions f or leave to appeal. I do not think this issue involves any identifiable error or law, 'There was ample evidence to support the Board's conclusion. Even il` ther e were an issue of law, I would not be prepared to find there is substantial doubt about the correctness of the Board's Decision, given that it merely requires what the 'Town had already asked for and obtained Newmarket's agreement to do when the abutting residential de velopment in Newmarket was approved 111 2009,

2 Breaches of Nftur rt Justice

~

[14j "l'he 'T'own's argument on this issue largely focused on one sentence at page 17 of the
Deem; :

The Board has set aside the urban design evidence, the evidence related to land economics and the balance of the traffic and transportation planning evidence and as provided 1br in these reasons, has centered its analysis on the 't'own's proposed ei'oss;iiig in the context of its OPA 73 envilonniental policies, and on the environmental aspects of these environmentally sensitive lands that impede the Town's desire to cross these environmentally sensitive and protected lands wi th a minor collector road in order to establish employment uses on this isolated parcel, which 111 met abu ts a ver y large developing resi d ential subdivision. [15] The Town argues that, In purporting to set aasIde the urban des ign evidence , the ev idence related to land economics and the balance of the traffic and transportation phoilii ng evidence and centering its analysis 011 the Town's proposed crossing in the context of app licable environmental p o licies, the Board failed to consider all relevant evidence. According to the Town, it i s not ope n to the Board to "set aside" relevant considerations and thereby avoid the obligation incumbent upon 1t to weigh all matters germane to t he dete rmination of whether the minor collector road was or was not appropriate, necessary and desirable in the context o f the overall plan.

1 16 1 On the motion for leave, the Town proceed ed, in effect, to reargue its position based on
the evidence it favored in support of OPA 73.

[17] It is well settled that an administrative tribunal is not obliged to refer to all of the evidence before it. 'i'lhe basis of the decision mus t be explained and this explanation must be

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logically linked to the decision made. This does not require that the tribunal refer to every piece of evidence or set out every finding or conclusion in the process of arriving at the decision. 'l'he path must be clear but it is not necessary that the tribunal describe every landmark along the way. [18] As long as there was evidence upon which the Board could reasonably have reached its decision, the fact that the Board preferred the evidence of one expert or witness over that of another, or chose not to accept certain evidence, does not quail f y as an error of law.

1. 19] It is not good enough to pick out pieces of the decision of a tribunal and hold them up to a magnifying glass to contend that, within a sentence or a paragraph, it is clear that there has been an error of law. The court must read the totality of the decision and weigh it according to the appropriate tests.
[20] Is clear, in my view, when read in the context of the entire Decision, that the Board's reference to "setting aside" certain aspects of the evidence and centering its analysis on others simply signals what the Board found to be the illost. germane considerations in rendering its decision. In the Board's view, the Town's case simply did not "clear the bar" with respect to those central issues. [21] The Board, in my view, made ample reference throughout the Decision to evidence which supports the ultimate disposition of the Sikura appeal. Reference is made to this evidence in paragraphs 48 to 57 of the responding party's factum. [22] In my view, the 'fowl has failed to show, with respect to the second issue, that there was any denial of natural justice or, for that matter, any error o flaw whatsoever. 3, Failure to Apply the Plann ngAct [23 1 The Town is required to amend its of ficial plan to conform with a "Growth Plan" promulgated by the Legislature in 2005. As the Board found, the Region's numbers reflect an overall maxim w'n population of 1.5 million and 780,000 jobs. In the case of the Town, the assigned numbers are a population of 70,000 and 34,200 jobs. [24] The rrown argues that both it and the Region called evidence to the effect that the removal of the "business park" designation from the Property and its replacement with a "residential" designation would conflict with and not conform to the Growth Plan in terms of both population and employment allocations assigned to the Town, 125.1 't'hc 'Down also argues that the Decision is contrary to section 2.1 of the Planning Acl, which requires the Board to "have regard to" the decisions of municipal council and any supporting in l(,7i'ination and material that the municipal council considered, [26] outer this heading, the 'l'own also argues that the Hoard improperly placed an onus on the Town to justify OPA 73 rather than on the appellant, Sikura, to show why employment uses were not appropriate on the Property and why a residential designation should be preferred. [27] The Board found, at page 33:

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The Board determines that such development along the lines of a small residential subdivision also does nothing to offend the 1`own of Aurorats long-term plans for all-employment uses on all of the south Sikura lands as well as on the much larger Aurora-Leslie lands further south. Further, the flexibility of the Town to consider the appropriateness and viability of OPA 73 through active monitoring and study in the years ahead safeguards the 't'own's secondary plan with this small northeast parcel designated for Urban Residential uses as outlined. [28] In my view, there is no issue of law raised by the Growth Plan compliance argument. The Region's new official plan which allocates these nun -ibors is under appeal and, therefore, not yet in ibrce. Further, the Board had ample evidence to conclude that the change 1"rom a business to a residential designation for the Property (and the resultant impact on population and/or employment yields), given its small size in relation to the lands under OPA 73 as a whole (3%), would have no material impact on the growth forecasts in the Growth Plan for York Region. This evidence is referenced in paragraphs 70 to 72 of the respondent's factum. As indicated in the passage quoted above, the Board simply did not accept the 't'own's evidence on the Growth Plan compliance issue and preferred the appellant's evidence.

[291 With respect to section 21 of the Planning Act, the decision of the Divisional Court. in Ottawa (Ci'ty) ay. l pinto communities Inc.,' makes it clear that, on an appeal, the Board has "the obligation to exercise its independent judgment on the planning inet'its of the application and to assess the proposal and the positions cal the parries Ji'c>axm the perspective 0lapplicable legislation, regulations, provincial plans, the provincial policy statement, oi,'lial plans and bylaws and even the potential impact on neighboring municipalities." In doing so, the Board brings its own expertise to beat. In s. 2.1, the Legislature used language, when choosing the words "having regard to," that suggests minimal deference, considering the many other expressions it could have used. "The traditional role ol. the Board, and the broad powers it exercises, should not, be altered radically without a more clear and specific expression of legislative intent." [30] 1 do not think it can be said that the Board failed "to have regard to" the choices of and supporting material before the Region and the Town in this case.
[31] The Board's Decision, in fact, reflects signilicallt deference to the Town's and the Region's position, since the Town was almost wholly successful in the defence of OPA 73 at this hearing. The Board found, however, that the Property created a "unique situation," There was evidence upon which the Board could reasonably reach that conclusion. [32] Further, when read as a whole, the 1]eoision is cleat' that the Board placed the evidentiary onus on the appellant, Sikura, At page 30, the Board said: It is thus incumbent upon the Appellant to show, as it has shown, why employment uses are not appropriate on the north parcel of its lands and why the

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urban residential designation should be pr eferred. In this context, the Board also determines that l ike all municipalities acr oss the Province, the Town of Aurora is l'ee to make its, longterm planning decisions in a manner that might depart from previous decisions or earlier planning processes, so long as they are guided b y sound planning principles

[33] The Board found, contrary to the Town's wishes, that the Town's i~t'oposa1s tot' the Property in {SPA 73, were not guided by sound planning principles. That was for the Board to decide and I can find n o error of law attendant upon the Board's disposition of that issue.
134] Accordingly, for these reasons, the Town's motion for leave to appeal i s d ismissed.
Costs

1351 I encourage the parties to explore agreement on the disposition of the costs of this motion, Absent agreement, Sikura may submit a brief w ritte n sub mission (snot to exceed two typed pages) together with a bill of costs, within three weeks of the release of these reasons. The `town of Aurora shall submit any respon ding submissions (subject to the same limitation) within
10

days thereafter,

w.A

JL
V

PENNY J .

Date: Deceniber 22, 2011

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CITATION: The Corporation of the Town of Aurora v, Robert Ci, Sikura and Regional Municipality of`Yor1C, 2011 ONSC 7642 DIVISIONAL COURT FILE NO.: 43 5111 I)A I : 20111222 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT PENNY ,I.

The Corporation of the Town of Aurora Applicant and Robert G. Sikura Respondent. - and Regional Municipality of York Respondent REASONS FOR DECISION

Penny J.

Released: December 22, 201