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AGENDA - General Committee - 20120221PUBLIC RELEASE February 17, 2012 TOWN OF AURORA GENERAL COMMITTEE MEETING AGENDA Tuesday, February 21, 2012 7:00 p.m. Council Chambers Councillor Buck in the Chair I DECLARATION OF PECUNIARY INTEREST AND GENERAL NATURE THEREOF II APPROVAL OF THE AGENDA RECOMMENDED: THAT the agenda as circulated by the Customer and Legislative Services Department be approved as presented. III DETERMINATION OF ITEMS REQUIRING SEPARATE DISCUSSION IV ADOPTION OF ITEMS NOT REQUIRING SEPARATE DISCUSSION V DELEGATIONS (a) Trish Schildt, Representing Club Aurora Cyclefit Members pg. 1 Re: Item 1 – PR12-005 – Club Aurora Fitness Centre Business Plan (b) Dr. Peter H. Waxer, Resident pg. 2 Re: Item 1 – PR12-005 – Club Aurora Fitness Centre Business Plan General Committee Meeting Agenda Tuesday, February 21, 2012 Page 2 of 8 (c) Nellie Bavdek, Representing Club Aurora Seniors pg. 3 Re: Item 1 – PR12-005 – Club Aurora Fitness Centre Business Plan (d) Roger Alberton, Resident pg. 4 Re: Item 1 – PR12-005 – Club Aurora Fitness Centre Business Plan (e) David Heard, Heritage Advisory Committee Member pg. 5 Re: Item 19 – HAC12-02 – Heritage Advisory Committee Report, February 13, 2012 VI PRESENTATIONS BY THE ADVISORY COMMITTEE CHAIR VII CONSIDERATION OF ITEMS REQUIRING SEPARATE DISCUSSION VIII NEW BUSINESS/GENERAL INFORMATION IX CLOSED SESSION X ADJOURNMENT General Committee Meeting Agenda Tuesday, February 21, 2012 Page 3 of 8 AGENDA ITEMS 1. Deferred from General Committee Meeting of February 7, 2012 (Item 9) PR12-005 – Club Aurora Fitness Centre Business Plan pg. 6 RECOMMENDED: THAT report PR12-005 be received; and THAT the 2012 Capital Budget request for Club Aurora be approved. 2. Memorandum from the Director of Parks & Recreation Services pg. 23 Re: Club Aurora Fitness – Supplementary Information RECOMMENDED: THAT the memorandum regarding Club Aurora Fitness – Supplementary Information be received for information. 3. Deferred from General Committee Meeting of February 7, 2012 (Item 2) BBS12-001 – Customer Service Strategy (CSS) pg. 131 RECOMMENDED: THAT report BBS12-001 be received; and THAT staff be authorized to proceed with process mapping in the amount of $30,630 for the ‘Build’ phase of the Customer Service implementation plan as described here in report BBS12-001; and THAT staff report back to Council with a progress report prior to commencing the ‘Mobilization’ phase of the Customer Service Project. General Committee Meeting Agenda Tuesday, February 21, 2012 Page 4 of 8 4. Deferred from General Committee Meeting of February 7, 2012 (Item 3) CAO12-003 – Alternatives to Bullfrog Power Procurement pg. 135 RECOMMENDED: THAT report CAO12-003 be received; and THAT staff investigate the development of two (2) 10 kW microFIT Solar PV systems on Town-owned buildings and report back with a full benefit/cost analysis when possible. 5. Deferred from General Committee Meeting of February 7, 2012 (Item 10) EDAC12-02 – Economic Development Advisory Committee Report pg. 143 January 12, 2012 RECOMMENDED: THAT Council adopt the Economic Development Advisory Committee recommendations of the January 12, 2012 meeting. 6. Deferred from General Committee Meeting of February 7, 2012 (Item 11) PRAC12-01 – Parks and Recreation Advisory Committee Report, pg. 146 January 19, 2012 RECOMMENDED: THAT Council adopt the Parks and Recreation Advisory Committee recommendations of the January 19, 2012 meeting. 7. IES12-008 – Alternative Calming Measures on Kennedy Street pg. 149 West – Bathurst Street to Murray Drive RECOMMENDED: THAT report IES12-008 be received for information. General Committee Meeting Agenda Tuesday, February 21, 2012 Page 5 of 8 8. IES12-009 – Traffic Calming Review Program for the Northeast pg. 154 Quadrant of Yonge Street and Wellington Street East RECOMMENDED: THAT report IES12-009 be received for information. 9. IES12-010 – Submission of Annual Drinking Water Quality Report pg. 160 RECOMMENDED: THAT report IES12-010 be received for information. 10. IES12-011 –Award of Tender IES2012-04 – For the Supply and pg. 170 Operation of Six (6) Contracted High Dump Dual Gutter Broom Street Sweepers for the Removal of Winter Sand and Other Debris on Roadways in the Town of Aurora RECOMMENDED: THAT report IES12-011 be received; and THAT Tender IES2012-04 – for the Supply and Operation of Six (6) Contracted High Dump Dual Gutter Broom Street Sweepers for the Removal of Winter Sand and Other Debris on Roadways in the Town Of Aurora, for one year ending December 31, 2012 (with the option to renew for an additional two, one-year periods), be awarded to A & G The Road Cleaners Ltd. in the amount of $53,394, excluding taxes; and THAT Council authorize the Director to renew Tender IES2012-04 for an additional two, one-year periods, pending an annual analysis and satisfactory performance review by the Director; and THAT the Mayor and Town Clerk be authorized to execute the necessary Agreement, including any and all documents and ancillary agreements required to give effect to same. 11. LGL12-003 – Authority to Legislate the Flying of Canadian Flags pg. 173 RECOMMENDED: THAT report LGL12-003 be received; and General Committee Meeting Agenda Tuesday, February 21, 2012 Page 6 of 8 THAT Council encourages all Town residents who choose to display the National Flag of Canada to do so in a manner that is respectful of our national symbol and is in accordance with federal protocol regarding its display and use. 12. PL12-002 – Regional Modifications and Approval of the Town’s pg. 181 Official Plan (2010) RECOMMENDED: THAT report No. PL12-002 be received; and THAT Council endorse the Region’s proposed modifications to the Official Plan; and THAT Council endorse the revised “Growing Aurora” background report update January 2011. 13. PL12-005 – Planning Application Fees and Heritage Properties pg. 228 RECOMMENDED: THAT report PL12-005 be received for information. 14. PL12-007 – Public Planning Meeting Notification Process pg. 235 Public Notice RECOMMENDED: THAT report PL12-007 be received for information. 15. PR12-006 – Agreement for Purchase and Sale pg. 239 RECOMMENDED: THAT report PR12-006 be received; and THAT Council approve the proposed terms and conditions, as detailed within this report, to be included within an Agreement for Purchase and Sale; and THAT staff report back to Council regarding the final Agreement. General Committee Meeting Agenda Tuesday, February 21, 2012 Page 7 of 8 16. Memorandum from Councillor Abel pg. 244 Re: Correspondence from the Aurora Cultural Centre RECOMMENDED: THAT the memorandum regarding Correspondence from the Aurora Cultural Centre be received for information. 17. EAC12-03 – Environmental Advisory Committee Report pg. 246 February 2, 2012 RECOMMENDED: THAT Council adopt the Environmental Advisory Committee recommendations of the February 2, 2012 meeting. 18. EDAC12-03 – Economic Development Advisory Committee Report pg. 248 February 9, 2012 RECOMMENDED: THAT Council adopt the Economic Development Advisory Committee recommendations of the February 9, 2012 meeting. 19. HAC12-02 – Heritage Advisory Committee Report pg. 249 February 13, 2012 RECOMMENDED: THAT Council adopt the Heritage Advisory Committee recommendations of the February 13, 2012 meeting. 20. PRAC12-02 – Parks and Recreation Advisory Committee Report pg. 253 February 16, 2012 RECOMMENDED: THAT Council adopt the Parks and Recreation Advisory Committee recommendations of the February 16, 2012 meeting. General Committee Meeting Agenda Tuesday, February 21, 2012 Page 8 of 8 21. CAO12-005 – Town of Aurora Strategic Plan pg. 255 RECOMMENDED: THAT report CAO12-005 be received; and THAT staff be directed to proceed with public consultation based on the Draft Strategic Plan. ADDITIONAL ITEMS FOR GENERAL COMMITTEE MEETING Tuesday, February 21, 2012 Delegation (f) Mr. Michael Snell, Resident Re: Item 1 - PR12-005 – Club Aurora Fitness Centre Business Plan Delegation (g) Ms Joan Hurst and Ms Barb Allan, Directors, The ABLE Network Re: Item 1 - PR12-005 – Club Aurora Fitness Centre Business Plan Correspondence from Adam Thompson, Planner, Novatech Engineering Consultants Ltd. Re: Item 12 – PL12-002 – Regional Modifications and Approval of the Town’s Official Plan (2010) Delegation (h) Mr. N. Potgieter, Resident Re: Item 12 – PL12-002 – Regional Modifications and Approval of the Town’s Official Plan (2010) Delegation (i) Mr. Klaus Wehrenberg, Resident Re: Item 15 - PR12-006 – Agreement for Purchase and Sale Customer and Legislative Services 905-727-3123 co uncilsecretari atstaff@a u rora. ca Town of Aurora 100 John West Way, Box 1000 Aurora, ON L4G 6J1 Requests for delegation status, any written submissions and background information for consideration by Council or Committees of Council must be submitted to the Clerk's office by 4:30 P.M. ON THE MONDAY PRIOR TO THE REQUESTED MEETING. PLEASE PRINT COUNCIL/COMMITTEE/ADVISORY COMMITTEE GATE: Feb. 21 2012 SUBJECT: Aurora Leisure Complex fundinq request IGH7 . : Michael Snell Street Address Aurora Townlcity. Postal code HOME: 905-727-8493 BUSINESS: DO YOU REQUIRE ANY ACCESSIBILITY ACCOMMODATION? no I would like to add my voice with others who are requesting additional funds for The purchase of new equipment for the G�tm at The Aurora Family Leisure Complex p Community~ �T �A A RKOR � ,you,Yeist ynoeGCoxr�a�r� Delegation Request Town of Aurora 100 John West Way, Box 1000 Aurora, Ontario L4G 6A Phone: 905-727-3123 ext 4217 Fax; 905-726-4732 www.aummm Please complete the following form. You may submit it to the Town of Aurora by EITHER: Printing and taxing a copy to 905-726-4732 • Saving this file to your computer and emailing it to councilsecmtariatstaff(a),auroraca Once your delegation request is received, the Customer and Legislative Services Department will contact you to confimt recelpt. Date 4�� 1 QZ Meeting date TUESDAY FEBRUARY 21 2012 Subject CLUB AURORA FITNESS CENTRE Name 'THE ABLE NETWORK Address 144 Town / City Province Ontario Phone (daytime) �- �'-�-I_�� a-7 Fax number Postal Code Phone (evening) Email address P���hV'Y��-�� Do you require any Accessibility Accommodation? r Yes r No Name of group or person(s) being represented, if applicable: Brief statement of issue or purpose of delegation: versonal information on this form is collected under the legal authority of the Municipal Act, as amended, The information is collected and maintained for the purpose of creating a record that is available to the general public, pursuant to Section 27 of the Municipal Freedom of Information and Protection of Privacy Act Questions about this collection should be directed to the Town Clerk, Town of Aurora, 100 John West Way, Box 1000, Aurora, Ontario, L4G 6.11, Telephone 905-727-3123 ext. 4217. February 14 2012 Brief statement of issue Club Aurora is an affordable, friendly and inclusive environment where the thirteen participants of The ABLE Network actively engage in recreation activities within a safe environment. For most of our participants this has been the first time that they have had a membership in a fitness facility. Our participants look forward to working out at the gym and they receive great support from the Club Aurora staff to reach their individual fitness goals. The ABLE Network's program goal of being community based and inclusive are fulfilled as our participants exercise along with other members of their community. The workouts are fun and challenging and being members of Club Aurora also promotes the development of self esteem, self confidence and self advocacy skills. We support Club Aurora's request for new equipment in order to maintain a safe and challenging environment for all of its members. Joan Hurst and Barb Allan Directors, The ABLE Network M:\2010\110108\110108PHASES\11010810 AURORA\CORR ESPONDENCE\LETTERS\20120221AURORA_OP_MODS_COMMENTS .DOC February 21, 2012 BY EMAIL Town of Aurora 1 Municipal Drive, Box 1000 Aurora, Ontario L4G 6J1 Attention: Mr. Fausto Filipetto Planning and Development Services Department Dear Mr. Filipetto: Re: Proposed Official Plan Modifications Ontario Restaurant Hotel and Motel Association Our File: 110108 10 Further to our discussion with Mr. Marco Ramunno on February 21, 2012 and our previous letters dated September 2, 2010, September 28, 2010 and February 16, 2012, Novatech Engineering Consultants Ltd. has been retained by the Ontario Restaurant Hotel and Motel Association (ORHMA) and its member brands, in this case being A&W Food Services of Canada Inc., McDonald’s Restaurants of Canada Limited, The TDL Group Corp. (operators and licensors of Tim Horton’s Restaurants) and Wendy’s Restaurants of Canada to review and comment on comprehensive Official Plan amendments, comprehensive Zoning Bylaw amendments, Urban Design Guidelines and other planningrelated matters. We note that the staff report was only made available to the public, through the posting of the General Committee Agenda on the Town’s website, after 5:00 p.m. on February 17, 2012. Further to our letter dated February 16, 2012, we feel that this is insufficient time for members of the public to review and comment where necessary on modifications to the Town’s Official Plan. While we understand and appreciate that notification is not required by the Planning Act on this matter, we feel that the Town should allow time for the public to review proposed modifications to the Town’s Official Plan. We maintain our request that the General Committee defer the consideration of the proposed modifications to the next available Committee meeting, which we understand would be March 20, 2012. A deferral would also provide an opportunity for continued discussions with Town staff to ideally reach a mutually acceptable resolution to our concerns. We have reviewed the staff report (PL12002) “Regional Modifications and Approval of the Town’s Official Plan (2010)” and have the following comments. M:\2010\110108\110108PHASES\11010810 AURORA\CORR ESPONDENCE\LETTERS\20120221AURORA_OP_MODS_COMMENTS .DOC Official Plan Policies – Drive throughs We appreciate Town staff’s recommendation to lift the restriction on drivethrough facilities with certain sections of “The Aurora Promenade”. However, we feel that the proposed modifications do not resolve the fundamental concern that Official Plans are not intended to be used to prohibit specific land uses. Our clients have consistently taken the position that prohibitions are beyond the powers of a municipality granted under Section 16 of the Planning Act, with respect to the purpose of an Official Plan. There have been decisions ranging from the Ontario Municipal Board, to and including the Supreme Court of Canada, going to this point. A prohibition on drivethrough facilities is not consistent with Section 1.1.3.4 of the Provincial Policy Statement. A restaurant with a drive through facility is a more efficient use of urban land than providing a parking lot sized appropriately for a restaurant. In this regard and attached for reference is an article titled “Official, But Illegal: Are Official Plans being used in a manner that is “A Bridge Too Far”, from The Digest of Municipal and Planning Law, dated August 2011. We note that Town staff proposes a modification that would add policies to those areas in “The Aurora Promenade” where a drivethrough facility wou ld be permitted. While the new language is generally consistent with language used in other municipalities, we have a concern with respect to proposed Policy 11.14.4 (a) (v). The second bullet in this proposed policy requires that, for a drive through facility to be permitted, it must be demonstrated that the impact of odour, dust or fumes from vehicles on adjacent or nearby residential uses have been minimized or controlled to the satisfaction of the Town. We also note that it is our understanding the proposed modification 74 in Appendix ‘A’ of the staff report should read, “Delete Sections 11.3.1 c) i) and 11.4.1 c) i) in their entirety…”, whereas the staff report references subsections vi) in each policy. Green Building and Design Policies As noted in previous correspondence, the policies in Section 5.2 of the Official Plan are prescriptive and may be impossible to achieve. As an example, under policy i) i. “Council shall require… 20% greater water efficiency than the Ontario Building Code.” Under policy i) iii “Council shall require… nonresidential buildings be designed to achieve 40% greater efficiency than the Model National Energy Code for Buildings”. It is understood that the polices of Section 5.2 in the Aurora Official Plan are intended to implement the policies found in Section 5.2, Sustainable Buildings, in the York Region Official Plan. There is frequent use of the word “encourage” in the York Region Official Plan, not the word “require”. In the case of policy 20 in the York Region Official Plan, the Ministry of Municipal Affairs and Housing removed the word “require” as a component of the Ministry’s approval. The prescriptive nature of M:\2010\110108\110108PHASES\11010810 AURORA\CORR ESPONDENCE\LETTERS\20120221AURORA_OP_MODS_COMMENTS .DOC the policies in Section 5.2, Green Building and Design Policies in the Aurora Official Plan must be reconsidered. We also note that it is likely that municipalities do not have the legal authority to include policies such as these in an Official Plan. We appreciate your consideration of the above matters. Should Committee determine that additional time is required to review the modifications provided by the Region and proposed by staff, we would welcome the opportunity to meet with staff to discuss our comments. Yours truly, NOVATECH ENGINEERING CONSULTANTS LTD. Adam Thompson, MCIP, RPP Planner Attach. cc. Geoffrey Dawe, Mayor, Town of Aurora John Leach, Town Clerk, Town of Aurora Marco Ramunno, Director of Planning & Development Services, Town of Aurora Tony Elenis, President & CEO, ORHMA Brandy Giannetta, Government Relations Manager, ORHMA Paul Hewer, McDonald’s Restaurants of Canada Limited Susan Rosales, The TDL Group Corp. Leslie Smejkal, The TDL Group Corp. Darren Sim, A & W Restaurants Susan Towle, Wendy’s Restaurants of Canada Michael Polowin, Gowlings ISSN 1181-9006 Cited 5 D.M.P.L. (2d) The Digest of MUNICIPAL & PLANNING LAW Editor in Chief: John Mascarin, M.A., LL.B. Aird & Berlis LLP (2011) 5 D.M.P.L. (2d), August 20717 Issue 8 Published 12 times per year by Protluction Etlitor: Tina Beier, B.A. (Hon.) Subscription Rate is $523 for 12 issues per CARSWELL, A DIVISION OF annum THOMSON REUTERS CANADA LIMITED ©2011 Thomson Reuters Canada Limited One Corporate Plaza 2075 Kennedy Road Printed in Canada by Thomson Reuters. Toronto, Ontario Customer Relations MIT 3V4 Toronto 1-416-609-3800 Elsewhere in Canada/U.S. 1-800-387-5164 Fax 416-298-5082 www.carswell.com E-mail www.carswell.com/email OFFICIAL, BUT ILLEGAL: ARE OFFICIAL PLANS BEING USED IN A MANNER THAT IS "A BRIDGE TOO FAR"? by Michael Polowin and Graydon Ebert Introduction An official plan is a useful and necessary tool used by mu- nicipalities to plan for their future development and growth. However, as currently used, many, if not most official plans across Ontario contain elements that are not consistent with the law, either in the form of decided case law, or on a plain reading of the Planning Act.' Many official plans across Ontario attempt to rigidly pre- scribe performance standards, prohibit certain kinds of uses, or otherwise attempt to specifically regulate use or building form. The practice appears to be a reaction to the continuing clash between a more activist population and the develop- ment industry. One planner justified the use of official plans in this way to the author on the grounds of attempting to con- trol the requests for relief by the development industry. Re- gardless of the reason for or breadth of such a practice, it is not in compliance with the statute and the case law, neither of which allow such content in an official plan. As such, the attempted use of such regulation or prohibition may well be "a bridge too far". There is a wealth of jurisprudence which suggests that offi- cial plans are intended to be broad and flexible policy state- ments that should and do not have the effect of a statute. Of- ficial plans are not intended to be used to prohibit or regulate specific land uses in detail. Rather, these should be imple- tR.S.O. 199Q c. P.13. mented through zoning by-laws. Despite this consensus in the current jurisprudence, municipanues appear to more and more be using official plans in a manner not intended or in- deed permitted. Indeed, in the face of rancorous public de - over development issues, more and more municipal staff and councils are proposing the use of official plans to pro - it specific uses, or regulate performance standards in a manner approaching the methods of a zoning by-law. The jurisprudence also suggests that since official plans are intended to be broad and flexible policy documents with an eye towards long-term planning, they should avoid being too detailed or specific to allow for municipal development to freely evolve without the constant need for official plan amendments. The Ontario Municipal Board (the `Board") has approved detailed site-speoific amendments to official plans to allow for changes in development in the past, but has voiced its concerns regarding this planning practice. Finally, there is case law which suggests that when power or authority is explicitly granted in one instance in a statute, the lack of the same expressly granted power in another instance wilI usually be construed as though the legislature did not intend for the body to have the power in the latter instance, by virtue of the expressio unius est exclusio alterius or im- plied exclusion rule. In this context, the fact that municipali- ties are expressly given the power to pass zoning by-laws 2Oil under s. 34 of the Planning Act which are intended to "regu- late" or "prohibit" suggests that municipalities were not in- tended to "regulate" or "prohibit' within an official plan be- cause under s. 16 of the Planning Act, municipalities are not expressly given the power to "regulate" or "prohibit'? It is the authors' view that it is likely that the implied exclusion rule would be applied in this context. Summary of Relevant Jurisprudence I. Content of an Official Plan Goldlist Properties Inc v. Toronto (City)3 The City of Toronto adopted an official plan amendment to enact policies relating to the preservation and replenishment of rental housing, in part by restricting "the demolition of rental property and the conversion of rental units to condo- miniums. " While defining the scope of official plan contents, the court at paragraph 14 explained that the Planning Act, apart from s. 16(1)(a) and 16(2)(b), does not contain any other specific provisions limiting the contents of what can be included in the official plan. The court, at paragraph 49, dealt with the issue of what could be included: Section 16(1)(a) is cast in terms of the minimum re- quirements for an official plan, not the outside limits. It does not list heads of power or the subjects that may be addressed by the official plan. There are unquestionably limits to what a municipality may include within its of- ficial plan, but the wording and scope of s. 16(l)(a) in- dicate that those limits cannot be determined solely by a literal application of its terms. To determine what may be included in an official plan, as distinct from what must be included by virtue of s. 16(l)(a), reference must be had to the Planning Act as a whole. In this regard, it is important to bear in mind that the purpose of an offi- cial plan is to set out a framework of "goals, objectives and policies" to shape and discipline specific operative planning decisions. An official plan rises above the level of detailed regulation and establishes the broad princi- ples that are to govern the municipality's land use plan- ning generally. [emphasis added] 2. Policy Versus Regnlation Goldlist Properties Inc v. Toronto (City) spoke to the fact that an official plan is intended to go beyond detailed regula- tion and establish broad planning principles that govern land use generally. This point, that official plans are not intended to impose specific planning guidelines, but rather zoning by- laws are the appropriate vehicle for such regulation, is can- vassed in the following cases. Steven Polon Ltd. v. Toronto (Metropolitan) Licensing Commission4 The court considered an appeal from the decision of the Met- ropolitan Licensing Commission refusing to issue a salvage yard licence for land in the Township of Scarborough. In re- fusing to issue the licence to the applicant, the commission based its decision on the township's official plan, which des- ignated the land at issue as agricultural and therefore did not pemut the use of the land as a salvage yard or scrap yard, despite the fact that the official plan had not yet been imple- mented by a zoning by-law. The court held, at paragraph 8, that where an official plan has been enacted by a municipal - but no zoning by-law has yet implemented the plan, the official plan is simply a statement of intention and is not an effective instrument to restrict land use: As a result of a perusal of ss. 10 to 20 of the Planning Act, R.S.O. 1960, c. 296, I am of the opinion that the Official Plan adopted by the respondent municipality is little more than a statement of intention of what, at the moment, the municipality plans to do in the future. Pro- visions for the amendment of an official plan make it clear that the municipality is not bound to carry out that intention and may from time to time as circumstances develop make such changes as appear desirable. The Official Plan is not therefore an effective instrument re- stricting land use. Cadillac Development Corp. v. Toronto (City)5 The court addressed, at paragraph 24, the role of an official plan as a policy document: [TIbe Official Plan therefore, as it is in effect from time to time, represents a policy or program having legisla- tive effect, governing the area to which it applies. It is clear from the scheme of the Act that the Official Plan is not immutable (s. 17) and does not have effect to im- plement the policy outlined by it. Implementation is to be effected by by-laws of the Municipal Council that conform to the policy specified in the plan. clbid. s. 16(2)(a). s44 M.P.L.R. (3d) 1, (2003] O.J. No. 3931, 232 D.L.R. (4th) 298, CanLI[ 50084 (Ont. C.A.). 4119611 O.R. 810, 29 D.L.R. (2d) 620, 1961 CarswellOnt 147 Writ. H.C.). 5(1973), 1 O.R. (2d) 20, 39 D.L.R. (3d) 188, 1973 CarswellOnt 271 (Ont. H.C.). Judgment orders: (416) bog-saoo; Fax (ate) 298-5094 Hamilton Harbour Commissioners v. Hamilton (City)6 The court addressed the effect of an official plan amendment in relation to a zoning by-law. Griffiths J. states, at paragraph 95: ,In any event, unless and on l official plan amendment 281 is implemented by a zoning by-law, which purports to direct, regulate or prohibit uses of the lands (or water) in the open water area, there is no potential con- tlict whatsoever. The official plan amendment has in it- self no binding effect either on the Commissioners or on other land owners in the harbour. Southwolrl (Township) v. Caplice� Anderson J. discusses the use of an official plan to prohibit specific uses of land at paragraph 4: An official plan is not an effective instrument restricting the use of land. That conclusion is implicit in the series of cases dealing with the adjournment of applications for mandamus, where the issue of a building permit was resisted on the ground that the municipality was pro- ceeding to the enactment of a zoning by-law which would prohibit the use for which the permit was sought. In those cases if the municipality could demonstrate that it had shown a bona file intention to effect such a zon- ing before the application for building permit was made, it was deemed entitled to have the application for man- damus adjourned until the necessary processes to the passage and approval of the By -Law had been com- pleted. Evidence of such a bona fide intention was found in those cases in the existence of an official plan to which the proposed zoning would conform. Had the official plan been effective to restrict the land use it would in itself have been an answer to the application for a building permit. [emphasis added] W/eitchurch-Stouffville (Town) Interim Official Plan, Res The town's official plan had provisions requiring both a 200 ft. set -back and a minimum 500 ft. lot frontage along a high- way. The Board held that the sections of the official plan were regulatory in nature rather than a policy statement and ruled that such matters should be confined to by-laws: "The board is disturbed that the mention of measurements relative to set -backs is really a regulatory process having no place in the official plan"; and later, "[o]nee again this is regulatory rather than a policy statement and should be confined to the by-law. The Board agrees with the concept but not the regu- latory approach used." Woodglen & Co. v. North York (City)s It was held that "an official plan and amendments thereto are not effective in themselves to regulate land use" and that "an official plan is a recommendation, or statement of intention only, which may or may not be implemented by the munici- pality by the enactment of appropriate zoning by-laws".m Frontenac-Lennox &Addington (County) Roman Catholic Separate School Board v. Kingston (City)11 These was an inconsistency between the city's new compre- hensive official plan and a zoning by-law. While the zoning by-law permitted schools in industrial zones, the official plan prohibited it. As the Board commented at paragraph 5, "[t]he hitch is that the official plan forbids a school. However, the plan is a statement of objectives and policy, designed to guide the City's land use decision -makers. Normally, land use rights depend on the zoning, not the official plan." Polls v. Toronto (City) Chief Building Officiahz The decision touches on the city's use of an official plan to regulate the land. Molloy, L states at paragraph 16: It is abundantly clear that the conditions imposed by the City are directed towards maintaining the natural envi- ronment of the ravine. This objective may well be, and indeed probably is, consistent with the policy expressed in the Official Plan. However, an Official Plan is not law. It is merely a statement of intention, which may or may not be implemented by the municipality by the en- actment of appropriate by-laws. Until such by-laws are passed, the Official Plan cannot be used by the munici- pality to regulate land use ... Therefore, the mere fact that protecting the natural state of the ravine is consis- tent with the Official Plan does not create jurisdiction in the City to protect the ravine through the site plan ap- proval process. TDL Group Ltd. v. Ottawa (Clty)13 The 2003 City of Ottawa Official Plan prohibited the estab- lishment of new drive -through facilities in certain areas. The 6(1976), 6 M.P.L.R. 183, 21 O.R. (2d) 459, 1978 CazswellOnt 376 (Ont. C.A.). �(1978), 8 M.P.L.R. 1, 22 O.R. (2d) 804, 1978 CarswellOnt 1255 (Ont. Div. Ct.). s(1983), 16 O.M.B.R. 280, 1983 CarswellOnt 1914 (O.M.B.). 9(1984), 26 M.P.L.R. 40, 47 O.R. (2d) 614 (Ont. Div. Ct.). 01bid. at 617. 1(1994), 25 M.P.L.R. (2d) 110 (O.M.B.). 2(2000), 15 M.P.L.R. (3d) 103, 2000 CarswellOnt 4291 (Ont. S.C.J.). 13Decision/Order No. 2649, issued September 21, 2006 (O.M.B). Judgment orders: (416) 609-3800; Fax (416) 298-5094 D.M.P.L. Board ruled that there was no proper basis to support the pro- hibition, and that such matters should be dealt with in zoning by-laws. The Board's position was summarized as follows at paragraph 19: The Board agrees that the policy as it exists gives no consideration to the possible effect on the pedestrian en- vironment through design for the unique characteristics of specific locations and that there are a number of ways to develop drive -through facilities on "Traditional Mainstreets", while protecting and enhancing the pedes- trian environment. The evidence proffered by the appel- lant shows that "drive -through facilities" in appropriate circumstances, can be designed to have minimal impact on traffic and the pedestrian environment. [... ] The proper approach for controlling [drive -through facili- ties] is the one adopted by the City of Toronto, which prohibits these facilities through its zoning by-law and not in its official plan. Official Plans do not need to be prescriptive like zoning by-laws. R & G Realty Maaageme>Ft Inc. v. North York (City)^ The above paragraph in Goldlist is cited for the proposition that "an official plan does not have the force of a statute". Rather, in R & G Realty Management Inc. v. North York (City) the court states, at paragraph 25, that an official plan "is a `recommendation, or statement of intention only, which may or may not be implemented by the municipality by the enactment of appropriate zoning by-laws"'. Oakville (Town), Reis The most recent statement regarding the use of an official plan to prohibit specific uses is contained in Oakville (Town), Re. While S.J. Stefanko states that it is not his role to rule on the merits of the argument that official plans should not prohibit specific uses, he does point out, at para- graph 16, that there "appears to be jurisprudence" which sug- gests as such. He cites the paragraphs quoted above from Goldlist and TDL Group v. Ottawa (City). These cases illustrate a consensus in the jurisprudence that official plans are intended to be broad documents of munici- pal planning policy, but are not intended to regulate specific land uses or set out specific performance standards. Zoning by-laws are the proper municipal tool for such, and regula- tion and policies in official plans are of no effect unless im- plemented by a zoning by-law. This consensus is so strong, that some decisions have considered the point to be trite law. In Csele v. Pelham (Town), Fleury, D.C.J. states that "[11 think it is trite law to say that Official Plans are basically an oadine of long-term objectives proposed by a municipality and certainly do not take any legal significance until they have actually been implemented by the passage of appropri- ate zoning by-laws." 1s Also, in Aim Inc. v. Peterborough (City), Howden, J. states that "[I]t is of course, trite law that an official Plan simply does not `prohibit' uses; that is the function of the zoning by-law.."17 Being the exception to prove the rule, there is a single Board decision approving of the City of Peterborough's policy of regulating adult entertainment parlours using its official plan. In Peterborough (City) Official Plan Amendment 56, Reis the city asked the planner undertaking its official plan review to develop criteria for the regulation of adult entertainment parlours in Peterborough. The policy was adopted in the offi- cial plan which provided very limited locations for adult en- tertainment parlours in the city. Ultimately, the Board was satisfied with the official plan amendment, despite its prohi- bition of a specific land use. The Board held, at paragraph , that the amendment: 24 [P]rovides guidelines and policies on what is a very ficult matter in this municipality and in other municipal- ities as well. Instead of pushing the issue away until it explodes as municipalities sometimes do with contro- versial land use matters, the city has in the past several months taken a constructive path to find a solution that may not please everyone but which attempts to deal fairly between property owners, residents, business op- erators, adult entertainment parlours, and the persons who wish to use those facilities. There is a balance sought here between the rights of the public, the public interest and the rights of the individual. The board be- lieves that has been fairly struck. There was no discussion in this case of whether, regardless of the efficacy and suitability of the policy, it should have been implemented by a zoning by-law, rather than at the offi- cial plan level. For this reason and because of the strength of the consensus in the above case law it is likely that this case is an outlier and official plans are not the proper vehicles for prohibiting or regulating specific land uses and performance standards. 3. Broad &Flexible Approach There is substantial jurisprudence which suggests that offi- cial plans are intended to be broad policy documents which should be general in nature and flexible in detail. They 1463 M.P.L.R. (4th) 192, [2009] O.J. No. 3358 (Ont. Div. CC). ts(2010), 2010 CarswellOnt 7078 (O.M.B J. 6(1985), 29 M.P.L.R. 188, 1985 CarswellOnt 673 (Ont. Dist. Ct.). 7(1999), 1 M.P.L.R. (3d) 225, 1999 CarswellOnt 924 (Ont. Gen. Div.). �8(1989)9 23 O.M.B.R. 57, 1989 CarswellOm 3512 (O.M.B.). Judgment orders: (416) 609-3800; Fax (416) 298-5094 5 D.M.P.L. should provide a stable approach to municipal growth, while not encumbering future development. Toronto (City) Central Area Official Mn, Re19 The Ontario Municipal Board, in discussing a proposed o cial plan amendment, at paragraph I10, accepted the expert evidence of planners who suggested that an official plan "should have as elements, stability and reliability; should be firm in principle with the detail flexible; should provide for continuity and reflect reality. It should also be a Long tern document". Hamilton-Wentworih Planning Area Official Plan AmenrL menl 1, Re20 The Ontario Municipal Board, in discussing what constitutes an official plan in Ontario, cited at paragraph 8, the para- graph above in Toronto (City) with approval. The Board also rejected, at paragraph 9, counsel's view that the validity of official plans could no longer be relied upon over any period of time because they had become more like a zoning by-law and required amendment in any instance of substantial rezoning. Oakville Planning Area Official Plan Amendments 28, 31 and 32, Re21 The Ontario Municipal Board accepted evidence from sev- eral experts, at paragraph 27,.that the purpose of an official plan was "to provide a guide to future orderly development by setting out the municipality's intentions and commitments to future development of a certain type at a certain place at a certain time." Further, an official plan should be "something like a constitution -firm in principle but flexible in detail. It follows therefore they should not be changed lightly or with- out good and sufficient reason" North York Planning Area Official Plan Amendment D-Il- 101, Rez2 In rejecting amendments to an official plan and its imple- menting zoning by-law to provide for hotels and open-air shopping areas in the downtown area, the Ontario Municipal Board was concerned with the piecemeal approach the mu- 19(1978), 5 M.P.L.R. 270, 1978 CazswellOnt 490 (O.M.B J. (1982), 13 "ALBA. 353, 1982 CarswellOnt 1953 (O.M.B.). 21(1978)9 9 O.M.B.R. 412, 1978 CarswellOnt 1641 (O.M.B.). 22(1984), 16 O.M.B.R. 167, 1984 CarswellOnt 1781 (O.M.B.). 23(1979), 10 O.M.B.R. 257, 1979 CarswellOnt 1669 (O.M.B.). 24(1982), 14 O.M.B.R. 4829 1982 CarswellOnt 1966 (O.M.B.). 25R.S.O. 1990, c. M.45. 26Supra, footnote 24, at para. 25. 27(1980), 10 M.P.L.R. 241 (O.M.B.). nicipality was taking to its official plan. The Board states, at pa agraph 12: [T]he city has lost sight of its original official plan poli- cies that create a hard boundary between the core uses and the stable residential uses surrounding. The concern of the board is that by introducing piecemeal amend- ments that disrupt the stability of the neighbouring resi- dential area, the city has lost sight of the need to under- take a comprehensive review of the immediate area that will surround and may become a part of this vibrant city centre that it hopes to achieve. Bradford &West Gwillimbury Planning Area Official Plan Amendments 13, 13A & 13B, Re73 The Town proposed several amendments to its official plan. The Ontario Municipal ,Board agreed, at paragraph 45, with the opinion of an expert planner that there should be flexibil- ity in an official plan to eliminate the necessity of amendments. Brampton Planning Area Official Plan Amendment 75, Re24 The City of Brampton proposed to remove provisions from their official plan regarding detailed traffic control. The On- tario Municipal 'Board agreed, at paragraph 5, with the city phmner who expressed the opinion that "traffic regulatory provisions and particularly in such detail, have no place in an official plan and that they also encumber council's jurisdic- tion under the Municipal Acf25 to properly exercise their authority." In Cadillac, cited in the previous section, the court recog- nized the necessity of having a flexible official plan to avoid the need for amendments. As stated by Henry, L "a council that wishes to permit development that conflicts with the pol- icy of the plan is restrained and must first have recourse to the cumbersome machinery for amending the plan and the meticulous scrutiny it entails.1126 Halmir Investments Ltd v. North Pork (Cily)27 The applicant was seeking a specific text change in the trict plan to permit the development of an apartment building as it only permitted a maximum density of 40 units/acre. Judgment orders: (416) 609-3800; Fax (41t7 298-5094 L. While the Ontario Municipal Board ultimately accepted the specific amendment to the official plan, to allow the re- quested 51 units/acre, the Board voiced its distaste for site specific amendments to official plans. As the Board states, at paragraph 246, "this official plan could achieve the same re- sult for the site in question by a more general statement of policy [... ] This plan does not contain what several others do have incorporated within them, namely that the plan is not intended as an instrument to restrict the use of land in the manner of a zoning by-law." Bele Himmell Investments Ltd. v. Mississauga (City)zs At issue in Bele was whether the Ontario Municipal Board erred in law or jurisdiction in deciding that a zoning by-law conformed to the official plan of the municipality. This case is often cited as providing direction on how official plans should be interpreted. At paragraph 22, the court explained that: Official Plans are not statutes and should not be con- strued as such [... ] Official Plans set out the present policy of the community concerning its future physical, social and economic development [... ] It is the function of the Board in the course of considering whether to ap- prove a by-law to make sure that it conforms with the Official Plan. In doing so, the Board should give to the Official Plan a broad liberal interpretation with a view to furthering its policy objectives. The notion that official plans should remain flexible runs through the jurisprudence. That said, it is not uncommon for the Board to approve amendments that appear restrictive: Georgma Official Plan Amendment 10, Rem The Ontario Municipal Board approved three official plan amendments which would facilitate the development of a residential retirement community because it felt that addition of the area to the plan had nothing to do with the other per- sons in the plan except to improve the economic base to help pay for a new sanitary system and to improve the social wel- fare of existing residents 30 While the Board did approve these amendments, it did make note of the fact that "an offi- cial plan must contain elements of stability and reliability so that property owners might rely on the continuance of the plan. Elio Corp. v. Mississauga (City)" The city contended that amendments to the official plan should reflect all of the elements contained in the zoning by- law, including the numerical standards, in order to ensure there would be no potential misunderstanding in the future. Despite the appellant's argument that flexibility should be maintained in an official plan which by definition is a broad policy document, the Ontario Municipal Board nonetheless proceeded to accept the city's position and approve the amendments with all the elements contained in the proposed zoning by-law. The approach taken in Elia seems counter to the direction provided by the Supreme Court of Canada in Subilomar Properties v. Cloverdale.32 In Subilomar, the court stated, at page 606, "[t]he purpose of an official plan has been said on many occasions to be an outline of a scheme or proposal for controlling the use of lands within the municipality." The court then went on to site Campbell v. Regina (City),33 where Johnson J. adopted the position taken by the city that, "the scheme is merely a general statement of future intentions. It contends that the scheme does not and is not intended to im- pose a straight jacket on future development" It is important to note two specific aspects of the Elia deci- sion that strongly suggest it is an outlier. First, the appellant did not object to the city's draft of the official plan amend- ment, they merely thought its version was superior to the ciry3s version; second and more importantly, while the appel- lant argued for the flexible approach in the drafting of offi- cial plan amendments, there is no indication that it provided the Board with any of the jurisprudence referred to in this letter, nor any case law at all. Therefore, it appears that the Board decided this matter in a vacuum, and without the ben- efit of guiding authority. As such, it can be seen as having little persuasive authority, and in any event, the bulk of the decided law runs counter to its approach.. 4. Implied Exclusion Rule To determine a municipality's authority with respect Co what it can do with its official plan, one must interpret s. 16 of the Planning Act which requires municipalities to adopt such plans. To guide one's interpretation of this provision, consid- eration should be given to the implied exclusion rule of stat- utory interpretation. This rule is described as follows: An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to in- clude a particular thing within its legislation, it would 28(1982), 13 O.M.B.R. 17, 1982 CarswellOnt 1946 (Out. Div. CC.). 29(1987), 35 M.P.L.R. 219, 1987 CarswellOnt 603 (O.M.B.). 301bid. at para. 36. 312005 CarswellOnt 6205 (O.M.B.). 32[19731 S.C.R. 596. 33(1966), 58 D.L.R. (2d) 259 (Sask. Q.B.), at 263, Judgment orders: (416) 609-3800; Pax (416) 298-5094 have referred to that thing expressly. Because of this ex- pectation, the legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, ex- clusion is implied.34 In the context of powers conferred by legislation, this rule would suggest that if a legislature expressly conferred an ad- ministrative body, court, municipality, etc. with a specific power in one part of a piece of legislation, its failure to ex- pressly confer that same power in another part of the legisla- tion can be construed as implying that the legislature did not intend to confer the power in the latter part of legislation. This interpretation rule becomes important in the context of understanding what the legislature intended with respect to what may or may not become part of an official plan as con- trasted to a zoning by-law. The contents of an official plan are governed by s. 16(2) of the Act, while the content of zon- ing by-laws are set out in s. 34(1). What this rule of interpre- tation would suggest is that the legislature, by explicitly giv- ing municipalities the power to "regulate" or "prohibit" specific land uses via zoning by-laws under s. 34(1), must have intended that municipalities specifically do not have the power to `regulate" or "prohibit" specific land uses via an official plan, because the legislature did not use prohibitive or regulatory language in s. 16(2). There is an abundance of jurisprudence which has applied this rule in this way. However, it will not be absolutely ap- plied. The court will look at the context of the situation and see if the application of this rule will lead to consequences that are absurd, unjust or incompatible with the purpose of the legislation. Tetreault-Gadoury v. Canada (Employment &Immigration Commission)35 This case deals with a decision by the Board of Referees of the Employment and Immigration Commission under the Unemployment Insurance Act, 197136 . The relevant issue was whether the Board of Referees had jurisdiction to con- sider the constitutional validity of a section of the Act. Under previous jurisprudence, the court had held that an administra- tive body, if given an express power by the legislation to in- terpret or apply any law necessary in reaching its findings, has the power to apply the Canadian Charter of Rights and Freedoms. The problem was that in the Act, the Board of Referees was not expressly given this power. However, an umpire, to whom an appeal from the Board of Referees could be made, was given this express power to interpret or apply any law. The court ultimately applied the implied exclusion rule and held that by expressly giving umpires this power, the legislature must have not intended for the Board of Referees to have that power. The court states, at paragraphs 16-17: [T]hese two provisions provide a strong indication that the Legislature intended that the umpire have power to find provisions of the Act or its accompanying regula- tions inconsistent with the Charter. It is significant that the umpire has been expressly provided with this power, while the board of referees has not. The maxim expressio unius est exclusio alterius, like all general principles of statutory interpretation, must be applied with caution. However, the power to interpret law is not one which the Legislature has conferred lightly upon administrative tribunals, and with good reason ... It is unlikely, therefore, that the failure to provide the board of referees with a power similar to that given to the umpire was merely a legislative oversight_ Reference re National Energy Board Act (Canada)37 At issue were costs that could be awarded by the National Energy Board. Counsel seeking to obtain costs argued that two specific provisions in the Act which allowed for the Na- tional Energy Board to fix costs in certain situations were evidence that the National Energy Board had full discretion to award costs in all circumstances, despite no explicit provi- sion as such, because these provisions merely limited the otherwise unfettered discretion of the National Energy ,Board. The court rejected this position and states, at para- graph 17: tT]he fact that Parliament has expressly conferred the power on the Board to award costs in specific situa- tions, strengthens the position of those parties who ar- gue against the Board's general jurisdiction. In my view, the maxim, expresslo unius est exclusio alterius would apply to this situation. Since the maxim has been interpreted to mean `Express enactment shuts the door to further implication" (Craies on Statute Law (71 ed.) p. 259) I think it clear that when Parliament expressly dealt with costs in this Act in three separate sections dealing with three distinctly different factual situations, then it must have intended to limit the power to award costs only to those specific situations. 34Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Mazkham: Butterworths, 2002) at 186-187. 35[1991] 2 S.C.R. 22, 1991 CazswellNat 829, 1991 CarswellNat 346 (S.C.C.). 36S.C. 1970-71-729 c. 48, 37[1986] 3 F.C. 275, 1986 CarswellNat 225 (Fed. C.A.). Judgment orders: (416) 609-3800; Fax (416) 298-5094 M. (T.M.) v. C. (P.)38 This case also deals with a power to award costs. At the time, the Civil Division of the Alberta Provincial Court had the express ability to award costs under the Provincial Court AC1,39 whereas the Family Division was not given the same express power. A father, whose applications for custody and access had been dismissed, appealed the decision of the trial judge who held that the court had jurisdiction to award costs. Brooker, L allowed the appeal and held that principles of statutory interpretation supported his conclusion. He states, at paragraph 49: [Alpplication of the principle expressio unius exclusio alterius (implied exception) dictates that by expressly giving the power to award costs to the Civil Division, the Legislature's silence regarding a similar power for the Family Division should be interpreted as excluding that power. The issue was whether a Youth Court judge had the jurisdic- tion to give a young offender a conditional discharge. Under the Young Offenders Act41, a Youth Court judge had the ex- plicit authority to discharge the young offender absolutely. However, there was no similar explicit provision with re- spcct to conditional discharges. In allowing an appeal dis- missing the conditional discharge, the court relied on the im- plied exclusion rule. The court states, at paragraph 3: ITjhe first almost instinctive conclusion from reviewing such a detailed list of powers is to assume that any power not included must have been deliberately ex- cluded an almost text book application of the maxim expressio unius est exclusio alterius. This is particularly so when the first subsection deals specifically with an absolute discharge, so it is impossible to conclude that the question of the conditional discharge was likely to have been overlooked or was intended to be covered by implication or in some oblique or indirect fashion in a subsequent portion of that section. As these cases illustrate, a court will often apply the implied exclusion rule such that if a legislature expressly conferred a specific power to a body in one part of a piece of legislation, its failure to expressly confer that same power in another part of the legislation can be construed as implying that the legis- lature did not intend to confer the power in the latter part of the legislation. However, a court will not apply this rule slavishly. In The Interpretation of Legislation in Canada, 3rd ed., the author notes, "since it is only a guide to the legislature's intent, a contrario reasoning [another term for a series of rules, in- cluding expressio unius est exclusio alterius] should cer- tainly be set aside if other indications reveal that its conse- quences go against the statute's purpose, are manifestly absurd, or lead to incoherence and injustice."42 In this particular situation, these cases suggest that the im- plied exclusion rule should be applied to ss. 16(2) and 34(1) of the Planning Act. The legislature, by explicitly giving mu- nicipalities the power to "regulate" or "prohibit" specific land uses via zoning by-laws under s. 34(1), must have in- tended that municipalities not have the power to `regulate" or "prohibit" specific land uses via an official plan, because the legislature did not use the same in language in s. 16(2). In the case of the Planning Act and the powers of municipali- ties to regulate through an official plan, the application of the implied exclusion rule is actually in accordance with the pur- pose of the provisions. As the cases above illustrate, official plans are intended to be broad, flexible, policy documents which outline a municipality's growth plan for the future. This plan is then implemented through a zoning by-law. As in Goldlist, an official plan is intended to rise above the level of detailed regulation. This concept of an official plan is sup- ported by the application of the implied exclusion rule. If an official plan is intended to be a broad policy, then interpret- s. 16(2) to allow a municipality to "regulate" or "pro - if' specific land uses, or to prescribe specific performance standards (height, setback etc.) with an official plan goes against that intention, especially given that when the legisla- ture wanted to give those powers to a municipality it explic- itly did so in the legislation (i.e. the power to `regulate" or "prohibit' specific land uses via zoning by-laws). An application of the implied exclusion rule to this question does not create an absurdity, or incoherence or injustice. In- stead, it serves only to support what the courts and the On- tario Municipal Board have repeatedly found to be the inten- tion of a properly drafted official plan. Conclusion There is a consensus in the jurisprudence that official plans are intended to be broad policy documents and are not to be vehicles for regulating specific land uses or imposing spe- c performance standards. The jurisprudence also suggests that given the intention that official plans be broad, flexible policy documents engaged in long-term planning, they should not be so detailed and specific as to restrict the evolu- tion of municipal development and require multiple amend- 3s2002 ABQB 416, 2002 CarswellAlta 586 (Alta. Q.B.). 39R.S.A. 2000, c. P-31. 40[19891 5 W.W.R. 350, 1989 Carswel]Sask 268 (Sask. C.A.). 41R.S.C. 1985, c. Y-1. 42P.A. Cote, The Interpretation of Legislation in Canada, 3d ed. (Scarborough: Carswell, 2000) at 339. Judgment orders: (416) 6033800; Fax (41 (] 298-5094 .L. (2d). August 2011 ments to deal with each specific development issue because of their comprehensiveness of detail. Finally, there is authority for the proposition that when a power is explicitly granted to a body in one instance in a statute, the lack of the equivalent express power in another instance should be construed as though the legislature did not intend for the body to have the power in the latter instance_ This is by virtue of the implied exclusion rule of statutory interpretation. In the context of official plans, s. 34 of the Planning Act ex- pressly gives municipalities the power to "regulate" or "pro- hibit' specific land uses via zoning by-laws. This suggests that the legislature did not intend for municipalities to "regu- late" or "prohibit' specific land uses via an official plan be- cause s. 16 of the Planning Act does not use the same lan- guage but states that an official plan may contain "a description of the measures and procedures proposed to at- tain the objectives of the plan". This application of the im- plied exclusion rule is strengthened by the jurisprudence re- garding the broad and flexible nature of official plans which illustrates that they are intended to be policy documents rather than regulatory in nature and should not be used to "regulate" or "prohibit". This conclusion has wide ranging implications for municipal planning in Ontario. Municipalities that have mandated spe- cific performance standards in their official plans, such as minimum setbacks and maximum height requirements, will need to revisit those plans to ensure that they are the broad planning policy documents intended by the legislature, rather than rigid, detail focused planning instruments. Even more importantly, municipalities in Ontario will need to reconsider how they use official plans to regulate specific land uses, both in their current and future plans. For exam- ple, many municipalities have used, or have contemplated using, their official plan to regulate or prohibit drive -through facilities or cogeneration facilities. Some have used their of- ficial plans to limit the area in which such facilities are per - led. Other municipalities have used their official plan to impose performance standards, such as setback require- ments, on land used for drive -through facilities, or impose maximum or minimum heights on buildings. Municipalities that have used, or continue to use, their out - plans to regulate or prohibit specific land uses should discontinue this planning policy approach. It is clear that the law, both the decided case law and the Planning Act, does not give municipalities the authority to use their official plans for this purpose, and that doing so constitutes a "bridge too far" in the use of official plans. Should they continue to do so, they will no doubt be met with opposition from inter- ested members of the public or property owners with the law on their side. Michael Polowin is a Partner with Cowling Lafleur Hender- son LLP in Ottawa, practicing in Development and Planning Law. Mr. Polowin advises and represents clients through the full spectrum of the development process. He has acted for some of the largest developers in Canada, and has been in- volved in development and planning matters throughout On- tario. Mr. Polowin has also acted on behalf of municipalities in Eastern Ontario on planning and development and public - private partnership matters. Graydon Ebert articled with Gowling Lafleur Henderson LLP in Ottawa and was called to the bar in Jurte, Z011. Mr. Ebert graduated in 2010 with a J.D. from the University of Western Ontario. Prior to law school, he obtained a B.A. (Highest Hons.) in Political Science from Carleton University. Judgment orders: (41� 609-3800; Faac (41 v7 298-5094 CASES DIGESTED IN THIS ISSUE Brandon (City), Leblanc v. See Leblanc v. Brandon (CS V Brunton, Gravenhurst (Town) v. See Gravenhurst (Town) v. Brunton. Burnaby (City) v. Oh (2011), 2011 CarswellBC 1066, 2011 BCCA 222, Groberman I.A., Hickson J.A., Rowles J.A. (B.C. C.A.) 353 Central Saanich (District), Residents & Ratepayers of Central Sawatch Society v. See Residents & Ratepayers of Central Saanich Society v. Central Samuch (District). Columbus Hotel Co. (1991) Ltd., Prince George (City) v. See Prince George (City) v. Columbus Hotel Co. (1991) Ltd. Csinos, R. v. See R. v. Csinos. Davies, Fleet v. See Fleet v. Davies. Di Blase, Vaughan (City) v. See Vaughan (City) v. Di Blase. Duoro-Drummer (Township), Greenhalgh Y. See Greenhalgh v. Duoro- Drummer (Township). Fleet v. Davies (2011), 82 M.P.L.R. (4th) 321, 2011 SKQB 159, 2011 Car- swellSask 268, J.E. McMurtry J. (Sask. Q.BJ 339 Franklin v. St. John's (City) (2011), 4 R.P.R. (5th) 315, 82 M.P.L.R. (4th) 149, 2011 CarswellNfld 134, 2011 NLTD(G) 61, Wayne G. Dymond J. (N.L. T.D.) 340 Friends of Lansdowne Y. Ottawa (City) (2011), 2011 CarswellOut 861, 2011 ONSC 1015, Master MacLeod (On[. Master) 333 Garowey v. Wbitemouth (Rural Municipality) (2011), 2011 CarswellMan 177, 2011 MBQB 87, Duval J. (Man. Q.R.) 335 Grand Forks (City), Saini v. See Salon v. Grand Forks (City). Gravenhurst (Town) v. Brunton (2011), 2011 ONSC 1799, 2011 Cars- wellOnt 2061, DiTomaso J. (Ont S.C.J.) 332 Gravenhurst (Town), Stephenson v. See Stephenson v. Gravenhurst (Town). Greenhalgh v. Duoro-Drummer (Township) (2011), 82 M.P.L.R. (4th) 128, 2011 CarswellOnt 2397, 2011 ONSC 2064, Y.D. Lauwers J. (Oct S.C.J.) 346 Greenhalgh Y. Duoro-Drummer (Township) (2009), J20091 O.S. No. 5438, 2009 CarswellOnt 7995, P. Lauwcrs J. (Ont. S.C.J.) 345 High River (Town) v. High River (Town) (Subdivision & Development Appeal Board) (2010), 2010 CarswellAlta 2676, 20 t0 ABCA 339, Peter Martin S.A. (Alta C.A.) 341 High River (Town) (Subdivision & Development Appeal Board), High River (Town) v. See High River (Town) v. High River (Town) (Subdivision & Development Appeal Board). Kamloops (City), Metercor Inc T. See Metercor Inc. v. Kamloops (City). La Rouge (lown), Lane v. See Lane Y. La Rouge (Town). Lane v. La Runge (Town) (2011), 2011 SKQB 160, 2011 CarswellSask 291, R.D. Maher L (Sask. Q.BJ 352 Leblanc v. Brandon (City) (2011), 81 M.P.L.R. (4th) 304, 2011 MBQB 72, 2011 CarswellMan 137, Menzies J. (Man. Q.B.) 344 Metercor Inc. v. Kamloops (City) (2011), 82 M.P.L.R. (4th) 77, 2011 BCSC 382, 2011 CarswellBC 689, R.E. Powers J. (B.C. S.C.) 343 Oh, Burnaby (City) v. See Burnaby (City) V. Oh. Ontario (Information & Privacy Commissioner), St. Catharines (City) V. See St. Catharines (City) V. Ontario (Information & Privacy Commissioner). Ottawa (City), Friends of Lansdowne v. See Friends of Lansdowne v. Ottawa (City). Ottawa (City), Toth Equity Ltd. v. See Toth Equity Ltd. v. Ottawa (City). Prince George (City) v. Columbus Hotel Co. (1991) Ltd. (2011), 82 M.P.L.R. (4th) 186, 17 B.C.L.R. (5th) 149, 2011 CarsweIIBC 1057, 2011 BCCA 218, Hickson S.A., Low J.A., Saunders J.A. (B.C. C.A.) 351 R. v. Csinos (2010). 2010 ONCJ 660, 2010 CarswellOnt 10427, H. Debacker J.P. (Oct C.S.) 336 Residents & Ratepayers of Central Saanich Society v. Central Saanich (District) (2011), 82 M.P.L.R. (4th) 291, 2011 CarswellBC 934, 2011 BCSC 491, V.R. Curtis J. (B.C. S.C.) 334 Sahota v. Vancouver (City) (2011)3 82 M.P.L.R. (4th) L17 B.C.L.R. (5th) 373, 2011 BCCA 208, 2011 CarswellBC 1016, Chimson J.A., Frankel J.A., Rowles J.A. (B.C. C.A.) 342 Saint v. Grand Forks (City) (2011), 2011 CarswelIBC 592, 2011 BCSC 320, 81 M.P.L.R. (4th) 106, 3 R.P.R. (5th) 113, L.A. Fenton J. (B.C. S.C.) 350 Sir Froggy lat Class Limousine c. Whitehorse (Ville) (20t0), 2010 YKTC 142, 2010 CarswellYukon 191, Roy four. Ct. J. (Y.T. Ton. Ct.) 337 St. Catharines (City) v. Ontario (Information & Privacy Commissioner) (2011), 2011 ONSC 2346, 81 M.P.L.R. (4th) 243, 2011 CarswellOnt 2121, Ferrier L, Lederer J., Swinton J. (Ont Div. Ct) 338, 354 St. John's (City), Franklin v. See Franklin v. St. John's (City). Stephenson v. Gravenhurst (Town) (2011), 2011 ONSC 2649, 2011 Cars- wellOnt 3086, DiTomaso J. (Ont S.C.J.) 347 Toth Equity Ltd. v. Ottawa (City) (2011), 82 M.P.L.R. (4th) 171, 2011 ONCA 372, 2011 CmswellOnt 3121, E.E. Gillese J.A., Karalonsanis J.A., Robert Sharpe LA. (Ont C.A-) 348, 349 Vancouver (City), Sahota v. See Sahom v. Vancouver (City). Vaughan (City) v. Di Blase (201 F, 2011 ONCJ 144, 82 M.P.L.R. (4th) 112, 2011 CarswellOnt 2054, Peter J. Wright L (Ont. C.S.) 355 Whitehorse (Ville), Sir Froggy 1st Class Limousine c. See Sir Froggy 1st Class Limousine c. Whitehorse (Ville). Whitemouth (Rural Municipality), Garowey v. See Garowey Y. Whitemouth (Rural Municipality). ' Digests or sucnnarica of the most recent and significant decisions of Canadian coons and tribunals, written with a focus on the legal iesues involved iu each decision. More than one digest may be written for each decision. Judgment orders: (416) 609-3800; Fax (416) 298-5094 11 5 D.M.P.L. (2d), August 2011 CONSTRUCTION LAW 332. Statutory regulation —Building permits —Failure to ob- tain permit Property owners commenced construction of bam structure without building permit — Owners disregarded and physi- cally removed order to comply directing them to cease all work and to apply for and obtain building permit — Owners submitted in- complete building permit application which was missing detailed construction plans and fee — Municipality passed by-law amending building department fees Municipality brought application pur- suant to Building Code Act, 1992 for order for removal or demoli- tion of barn structure — Application granted Building permit application and structure both remained incomplete, and fee re- mained unpaid — Relevant fee was as set out in new by-law for farm building not used for residential occupancy, namely $2,100 — To permit building to remain where it was constructed without ben- efit of building permit would encourage disobedience of, and pro- mote disrespect for law, and therefore, injunction requiring building to be demolished should issue — Owners did not deny that they began construction without obtaining permit— Where there is fla- grant and unjustified contravention of Act, injunction should be granted requiring immediate cessation of construction on property until municipality has issued building permit Gravenhurst (Town) v. Brunton (2011), 2011 ONSC 1799, 2011 CarswellOnt 2061, DiTomaso J. (Ont. S.C.J.). MUNICIPAL LAW 333. Attacks on by-laws and resolutions —Practice and proce- dure — On quashing by-laws or resolutions — Miseelhme- ous—City of Ottawa approved proposal by private consortium to redevelop Lansdowne Park — Citizens' group (FOL) applied to quash enabling by-law on grounds of illegality and bad faith FOL brought motion for further production of documents — City brought cross -motion to strike reply affidavits filed by FOL — Mo- tion granted in part, cross -motion dismissed Assuming it was document, FOL was entitled to production of "detailed evaluation" of redevelopment plan referred to in affidavit of city manager FOL was also entitled to production of any actual documents re- ferred to in affidavit filed by consortium — Source documents pro- vided to auditors and "studies and reviews" of proposal by city staff were relevant and ordered produced for inspection — Reply affida- vits were in effect expert reports whose admissibility was un- clear — Most practical solution was not strike affidavits but to al- low City to file expert evidence in sur-reply after FOL experts had access to additional production. Friends of Lansdowne v. Ottawa (City) (2011), 2011 Carswell - Out 861, 2011 ONSC 1015, Master MacLeod (Ont. Master). 334. Attacks on by-laws and resolutions —Practice and proce- durequashing by-laws or resolutions —Standing — Miscellaneous District passed by-law which permitted respon- dent V to subdivide 13-hectare portion of his farm into 57 residen- eial lots, which can include secondary suites Residents and rate- payers of CS Society petitioned court to quash bylaw Petition dismissed — Having considered plan itself, staff recommendations and benefits conferred by covenant taken with bylaw, council was acting reasonably in passing bylaw 1712 Court was not per- suaded that bylaw 1712 was inconsistent with Official Community Plan adopted by district. Residents & Ratepayers of Central Saanich Society V. Central Saanich (District) (2011). 82 M.P.L.R. (4th) 291, 2011 Car- swellBC 934 2011 BCSC 491, V.R. Curtis J. (B.C. S.C.). 335. By-laws —Enactment —Miscellaneous Council of re- spondent municipality approved local improvement plan for con- struction of municipal water and sewer system and passed related by-law — Proposal passed first reading after more than half of rate- payers registered objections After hearing before Board, by law was approved with two thirds of ratepayers objecting Council discussed order at two special meetings; no notice was provided to public — Council amended method of tax calculation and passed amended by-law at special meeting which took place on statutory holiday Applicant brought application seeking order quashing by-law, order that municipality was prohibited from taking further action to implement by-law and for declaration that municipality acted in excess of jurisdiction — Application granted Evidence supported applicant's position that Council was not open to persua- sion in respect of decision to pass by-law despite concerns and ob- jections of at least two -thuds of affected ratepayers Rules of pro- cedural fairness were breached by respondent's failure to give noflcc of revised by-law to all potential ratepayers and failure to hold public hearing prior to approval Giving second and thud readings without affording potential ratepayers opportunity to be heard was not consistent with fair and open procedure — Where property rights of ratepayers was directly affected by passage of re- vised by-law, duty of procedural fairness required municipality to hold public hearing to address amendment— Municipality acted in excess of jurisdiction by pre -deciding passage of by-law despite ob- jections; by-law quashed Municipality prohibited from taking further action without public hearing and proper prior notice. Garowey v. Whitemouth (Rural Municipality) (2011), 2011 Car- swellMan 177, 2011 MBQB 87, Duval J. (Man. Q.B.). 336. By-laws —Enforcement —Miscellaneous Accused controlled and occupied lands Accused applied for and received building permit from municipality for "seasonal grading of process - cucumbers" After group associated with nearby cemetery complained grading operation was disturbing burial site, stop order was issued Zoning expert indicated that cucumber grading sta- fion was not permitted use because cucumbers were not grown on property — Accused continued to grade cucumbers — Accused was charged with violating zoning by-laws — Accused con- victed — Building permit had been erroneously issued initially Municipality had informed accused that there was zoning issue and used continued grading operation — Evidence established that there was zoning contravention on offence dates as charged Ac- cused had graded cucumbers for over 15 years without indicating of zoning problem from municipality — Accused had taken subse- quent necessary steps to have proper zoning in place Appropriate sentence was suspended sentence. R. v. Csinos (2010), 2010 ONCJ 660, 2010 CarswellOnt 10427, H. Debacker J.P. (Ont. C.J.). 337. By-laws —Enforcement —Miscellaneous In Novem- ber 2008 Cityof Whitehorse charged accused with having contra- vened municipal bylaw 2003-17 in not having vehicle rental permit for its 1994 Lincoln — Accused acquitted — Totality of evidence did not support contention that accused's vehicle, which was limou- sine, was subject to by-law 2003-17 By-law contained no defini- Judgment orders: (416) 609-3800; Fax (416) 298-5094 tion of limousines By-law did not apply to buses or chartered buses — Other legislation grouped chartered buses and limousines together — By letter dated June 27, 2008 City of Whitehorse ac- knowledged that its taxi mechanical inspections did not apply to ac- cused's limousines — City of Whitehorse also acknowledged that there was no distinction between bus and chartered bus, which was defined as "bus or limousine" in other legislation. Sir Froggy 1st Class Limousine c. Whitehorse (Ville) (2010), 2010 YKTC 142, 2010 CarswellYukon 191, Roy Terr. Ct. J. (Y.T. Terr. Ct). 338. By-laws —Miscellaneous Information and Privacy Commissioner of Ontario ordered release of substantial portion of report that had been withheld by city on basis that it concerned pro- perty matter dealt with by General Committee of Municipal Council in in camera meeting City brought application for judicial re- view — Application dismissed — Adjudicator had jurisdiction to return issue of exercise of discretion to city for further considera- tion — Decision was reasonable one, as city's representations on exercise of its discretion did not show that it considered relevant factors in refusing to disclose exempt portions of record, nor did it show that it considered public and private interests in disclosure and non -disclosure — While city argued that adjudicator had substituted its decision for that of city, that was not case. St. Catharines (City) v. Ontario (Information & Privacy Com- missioner) (2011), 2011 ONSC 23465 81 M.P.L.R. (4th) 2435 2011 CarswellOnt 2121, Ferrier J., Lederer J., Swinton J. (Ord. Div. Ct). 339. Council members —Conflict of interest —Failure to dis- close interest — Pecuniary interest — What constitutes Municipal council was concerned about dearth of physicians prac- ticing in area and regularly discussed issue of medical coverage — Members sitting on council included two respondent counsellors, DG, receptionist for physician, Dr. MD, and DD, his wife — DD was one of two councillors appointed to medical services assess- ment project committee, but she resigned after bearing concerns about possible conflict of interest — DO declared at subsequent council meeting that she would abstain from discussions and voting on recommendations by medical services committee — Applicant objected to involvement of respondents in any discussions by coun- cil or medical services committee on medical coverage issues — Applicant asserted that respondents had pecuniary interest in medi- cal coverage issues Applicant brought motion to remove respon- dents from municipal council Application dismissed — Respon- dents' uncontested evidence was that their efforts on council were to assist with recruitment of additional doctors for municipality — There was no evidence that they had any pecuniary interest in recruiting doctors to municipality or in location of methadone clinic, or in whether municipality combined two medical clinics into one— It was not sufficient for applicant to assert that respon- dents were in conflict of interest when they engaged in council bus- iness that may have had impact on medical practice of Dr. MD — Appbcant had not demonstrated how respondent councillors would have financially profited or been affected financially by decision of council, within meaning of s. 143 of Municipalities Act Fleet v. Davies (2011)7 82 M.P.L.R. (4th) 321, 2011 SKQB 1595 2011 CarswellSask 268, J.E. McMurtry J. (Sask. Q.B.). 340. Development control —Development permits — Condi- tions Respondent municipality required applicant property owner seeking peanission to erect fence along right-of-way to ob- tain consent of abutting property owners. Franklin v. St. John's (City) (2011), 4 R.P.R. (5th) 3157 82 M.P.L.R. (4th) 1497 2011 CarswellNfld 134, 2011 NLTD(G) 61, Wayne G. Dymond J. (N.L. T.D.). 341. Development control —Development permits —Practice and procedure Proposed liquor store was discretionary use under land use by-law — Proposed liquor store was to be located adjacent to public park, contrary to by-law, and therefore variance was required Proposed development was also located in close proximity to existing liquor store, thus requiring consideration of any cumulative impacts on existing development in area — Subdi- on and appeal board approved development permit that changed use of subject site to liquor store — Town brought application for leave to appeal Application granted Issue of sufficiency of board's reasons met test for leave to appeal— Record contained no reference to statutory criteria, aside from conclusory statement in preamble of board's order that it had due regard to Municipal Gov- ernment Act (MGA) and by-law — There was no apparent analysis of that criteria — Board's reasons were arguably inadequate to ex- plain what board considered to be cumulative impacts from devel- opment and how they affected existing developments in area — Board's explanation as to its jurisdiction to restrict number of busi- nesses of particular type within town was potentially inadequate If board's reasons with respect to variance were considered to be adequate, it was arguable that board eaed in failing to apply appro- priate test required by MGA — If reasons with respect to cumula- five impacts were adequate, issue as to whether board applied ap- propriate test under by-law and properly limited its jurisdiction to consideration of proliferation of liquor stores had to be addressed. High River (Town) v. High River (Town) (Subdivision & Development Appeal Board) (2010), 2010 CarswellAlta 2676, 2010 ABCA 339, Peter Martin J.A. (Alta. C.A.). 342. Licensing and regulation —Regulation of behaviour — Nuisance —Miscellaneous Building that was wnstmcted in 1912 was acquired by petitioner in 1975 Building was used as rooming house until fire occurred in 2006 — City ordered that oc- cupancy cease until various building permits were obtained and re - occupancy permit was granted — Certain violations and deficieo- ties were noted in order Petitioner obtain permit to allow for repairs, but repairs were not done and permit expired — City ad- vised that non -conforming use status had been lost, and that devel- opment permit approval was required — As result of poor condition of building and concerns of residents about squatters, order was is- sued that building be demolished— Cityieclared that building was nuisance and danger to public safety — "Last chance" provision was included, withholding action on condition that petitioner took certain steps, but provision was not complied with and demolition order was issued Petition for judicial review was dismissed Petitioner appealed — Appeal dismissed — City was not obliged to prosecute with respect to enforcement of its by-laws, and it was matter of discretion whether to enforce by-laws through prosecution or by resort to available civil remedies — There was no direct causal relationship between city's decision that nonconforming use status was lost and premises falling into significant disrepair result - in premises being declared nuisance — Petitioner's argument that she could not repair premises because city would not issue building permit ignored important evidence — Premises had been in significant disrepair for many years, and it was not accurate to suggest that lack of occupancy was caused by acts of city — Peti- tioner did not apply for building permit to effect repairs in timely manner, and did not attend to cleaning or regular maintenanceIf Judgment orders: (416) 609-3800; Fax (416) 298-5094 P.L. (2d1. August 2011 petitioner wished to take issue with acts of city leading to declara- tion, petitioner ought to have exercised her rights and sought reme- dies when those acts occurred. Saluda Y. Vancouver (City) (2011), 82 M.P.L.R. (4tb) 1, 17 B.C.L.R. (5th) 373, 2011 BCCA 208, 2011 CarswellBC 1016, Chiasson J.A., Frankel J.A., Rowles J.A. (B.C. GA.); affirrnmg (2010), 2010 CarswellBC 715, 2010 BCSC 387, 71 M.P.L.R. (4th) 90, Greyell J. (B.C. S.C.). 343. Municipal contracts -Miscellaneous City issued re- quest for proposals to find supplier and installer for residential water meters - Process involved two -envelope system, in which price in proposal would only be considered if proponent met certain threshold of points related to non -price criteria - Petitioner sub- mitted proposal, but city entered into negotiations with another pro- ponent, N Ltd., instead - Petitioner contended that process and im- plementation of process gave preferential treatment to N Ltd. and, therefore, breached duty of openness, transparency, fairness and equality to all proponents - Petitioner brought application for judi- cial review to set aside eity's decision It was determined that process was not unfair, but that failure to consider price was unrea- sonable; matter remitted to water meter committee to reconsider de- cision after considering price submitted by petitioner - Items in evaluation that were claimed to be preferential to N Ltd. did not result in preferential treatment, and did not make significant differ- ence in evaluation - Committee was free to make its own evalua- tion and to arrive at its own conclusions with regard to number of points to be given for each criteria for each proposal Fact that city had prior experience dealing with N Ltd. because of pilot pro- ject did not render process unfair -Process was transparent and all proponents knew basis of evaluation and requirements for propos- als However, multi -stage process was unreasonable - Commit- tce effectively fled their hands or blinded themselves to issue of price, even though proposal might meet all of mandatory require- ments There was more than simply assigning of certain weight to price; effect was to eliminate price in its entirety City was not in any way bound to enter into negotiations with parry that submit- ted lowest price, but it was unreasonable for committee to eliminate price from its consideration in manner in which it did. Metercor Inc. v. Kamloops (City) (2011), 82 M.P.L.R. (4th) 777 2011 BCSC 382, 2011 CarswellBC 689, R.E. Powers J. (B.C. S.C.). 344. Municipal liability -Negligence -Flooding from sewage system In October 2009, plaintiff homeowner suffered third flood as result of sewer system backing up into basement - On this occasion, back water valve failed as result of being clogged by gravel - Plaintiff sued city for damages as result of flooding of basement in 2009 - Action dismissed - Court was unable to find that city was negligent in its monitoring of sewage line in question or that it failed to take appropriate steps to prevent reoccurrence of problem, albeit unsuccessfully. Leblanc v. Brandon (City) (2011), 81 M.P.L.R. (4th) 304, 2011 MBQB 72, 2011 CarswellMan 137, Menzies 1. (Man. Q.B.). 345. Municipal liability -Negligence -Property mainte- nance -Miscellaneous Plaintiff believed road to continue to right when it did not do so, and automobile became stack - Plain- tiff suffered severe injuries due to frostbite - Plaintiff brought ac- tion in negligence regarding maintenance of road Action dis- missed - Plaintiff clearly suffered injury Township did not breach standard of care - Road was kept in reasonable repair - Signage is aspect of repair - Road did not have any potentially dangerous conditions which required advance warning Town - did not adhere to signage guidelines requiring signage at end of road, and guidelines themselves would not necessarily establish liability. Greenhalgh v. Duoro-Drummer (Township) (2009), [2009] O.J. No. 5438, 2009 CarswellOnt 7995, P. Lauwers J. (Ont. S.C.J.); ad- onal reasons at (2011), 82 M.P.L.R. (4th) 128, 2011 Carswell - Om 2397, 2011 ONSC 2064, P.D. Lauwers J. (Ont. S.C.J.). 346. Municipal liability -Practice and procedure - Ac- tions - Costs - Miscellaneous Plaintiff JG suffered griev- ous bodily injuries resulting from frostbite - JG and other plain - brought action against townsbip seeking damages of more than $10 million Township made several offers to settle - Plaintiffs' action was dismissed on basis that township was not negligent and absence of road signs did not cause events that led to JG's inju- ries - Township sought costs totalling $827,809.51 Costs awarded in amount of $370,014.30 on partial indemnity basis - Costs were not to be awarded jointly and severally against JG and her parents - It would not be fair to visit unduly grave conse- quences on Family Law Act (FLA) claimants because they did not control litigation ordinarily and were seriously inhibited from set- tling their claims if main claim could not be settled - FLA claim would have represented about 2 percent of overall claim, and it seemed reasonable to oblige parents to pay costs in amount of $7,500.00 Reductions were appropriate in terms of hourly rates, trial time, hours in respect of overlap due to multiple counsel, time spent on written submissions, and costs for reviewing reasons for judgment and preparing costs submissions - Expert fee of $9,765.00 was disallowed as expert in question provided no useful evidence - Costs were not reduced or eliminated on account of plaintiffs' lack of financial resources and their having to cope with tragic circumstances of JG's injuries - There was concern about problem posed for system of justice if costs disincentive were to be displaced by rule that routinely advantaged party's hardship in exer- cise ofjudicial discretion over costs - Plaintiffs were represented by highly experienced counsel Plaintiffs were no doubt fully ad- vised of costs risks they were running throughout. Greenhalgh v. Duoro-Drummer (Township) (2011), 82 M.P.L.R. (4th) 128, 2011 CarswellOnt 2397, 2011 ONSC 2064, P.D. Lauwers J. (Ont. S.C.J.); additional reasons to (2009), [20091 O.J. No. 5438, 2009 CarswellOnt 7995, P. Lauwers J. (Ont S.C.J.). 347. Municipal liability -Practice and procedure - Ac- tions -Miscellaneous Plain[ffs co -owned property on which they began construction of commercial building - Since exterior cladding was not completed in accordance with submitted plans, de- fendant town issued order to remedy violation of property standards by-law - Plaintiffs' motion for interim injunction to prevent town from conducting remedial work on their property was dismissed by W - Remedial work was completed at town's expense - Town's motion for summary judgment was granted by Q on basis that plaintiffs' claim disclosed no cause of action Plaintiffs brought motion to set aside summary judgment - Motion dismissed - ruffs attempted to re -litigate number of issues that were before summary trial judge Q, which she considered in arriving at her ded- sion to grant town's motion for summary judgment and dismiss plaintiffs' action - When town brought its motion for summary judgment, there was nothing further to litigate and issue was of Remedial cladding work had been completed and injunc- tive relief sought by plaintiffs had been denied - New evidence on which plaintiffs wished to rely did not support allegation that town Judgment orders: (416) 609-3800; Fax (416) 298-5094 5 D.M.P.L. (2d), August 2011 14 targeted plaintiffs in bad faith and, if presented to court at hearing of summary judgment motion, would not have changed result — Plaintiffs asserted reasonable apprehension of bias on part of W and on part of Q to extent that any of her reasoning was based upon any decisions by W — Judge of Superior Court cannot set aside order of another judge of same court on allegations of bias. Stephenson v. Gravenhurst (Town) (2011), 2011 ONSC 2649, 2011 CarswellOnt 3086, DiTomaso J. (Ont. S.C.J.). 345. Manicipal tax assessment —Practice and procedure on as- sessment appeals and objections — Correction of errors and omissions Assessment Review Board (ARB) decisions led to change in apportionment of value of taxpayer's property, with more value being placed on commercial property class and less on shop- ping centre class This resulted in increase in property taxes — Taxpayer applied to city for cancellation, reduction or refund in taxes, claiming it had been overcharged City did not hold meet- ing, and replied that there had been no error — Taxpayer filed ap- peals on basis that city council did not make decision by required date — Taxpayer brought successful application for judicial re- view Divisional Court issued order in nature of mandamus re- quiring city hold meeting at which taxpayer could make representa- tions, and requiring city to make decision with respect to issues raised by taxpayer — City appealed — Appeal allowed — Requir- ing city to hold meeting and render decision in respect of claim con- flicted with legislative scheme under s. 357 of Municipal Act, 2001 — Section 357(8) expressly contemplates and provides for sit- uation in which council does not make decision in respect of appli- cation Section creates scheme so that if council does not render decision applicant has remedy of appealing to ARB — It was not legislature's intention to require municipal councils to hold meeting for every application that was filed to them — Mandamus ties only where, among other things, applicant for judicial review shows that it is owed legal duty — City did not owe taxpayer legal duty to hold hearing in respect of claim — Divisional Court's order also ran contrary to established jurisprudence requiring person, absent ex- ceptional circumstances, to exhaust appeal rights in administrative process before pursuing application for judicial review — Because city council failed to make decision in relation to taxpayer's appli- cation, pursuant to s. 357(8) taxpayer had right to appeal to ARB Neither party contended that there were exceptional circumstances permitting early recourse to courts — Appeal to ARB was adequate alternative remedy to judicial review At its highest, evidence was that taxpayer failed to pursue its appeals. Toth Equity ,Ltd. v. Ottawa (City) (2011), 82 M.P.L.R. (4th) 171, 2011 ONCA 372, 2011 CarswellOnt 3121, E.E. Gillese J.A., Karakatsanis J.A., Robert Sharpe J.A. (Ont. C.A.); reversing (2010), 2010 ONSC 2605, 2010 CarswellOnt 3539, 72 M.P.L.R. (4th) 287, Mallow J., Pierce R.S. J., Power J. (Ont. Div. Ct.). 349. Municipal tax assessment —Remedies —Judicial re- view —Mandamus Assessment Review Board (ARB) deci- sions led to change in apportionment of value of taxpayer's pro- perty, with more value being placed on commercial property class and less on shopping centre class — This resulted in increase in property taxes — Taxpayer applied to city for cancellation, reduc- tion or refund in taxes, claiming it had been overcharged — City did not hold meeting, and replied that there had been no error — Taxpayer filed appeals on basis that city council did not make deci- sion by required date — Taxpayer brought successful application for judicial review — Divisional Court issued order in nature of mandamus requiring city hold meeting at which taxpayer could make representations, and requiring city to make decision with re- spect to issues raised by taxpayer City appealed Appeal al- lowed Requiring city to hold meeting and render decision in r - spect of claim conflicted with legislative scheme under s. 357 of Municipal Act, 2001 — Section 357(8) expressly contemplates and provides for situation in which council does not make decision in respect of application — Section creates scheme so that if council does not render decision applicant has remedy of appealing to ARB — It was not legislature's intention to require municipal coun- cils to hold meeting for every application that was filed to them Mandamus lies only where, among other things, applicant for Judi - review shows that it is owed legal duty — City did not owe taxpayer legal duty to hold hearing in respect of claim — Divisional Coart's order also ran contrary to established jurisprudence requir- ing person, absent exceptional circumstances, to exhaust appeal rights in administrative process before pursuing application for judi- cial review — Because city council failed to make decision in rela- tion to taxpayer's application, pursuant to s. 357(8) taxpayer had righI to appeal to ARB — Neither party contended that there were exceptional circumstances permitting early recourse to courts Appeal to ARB was adequate alternative remedy to judicial r - view — At its highest, evidence was that taxpayer failed to pursue its appeals. Toth Equity Ltd. v. Ottawa (City) (2011), 82 M.P.L.12. (4th) 171, 2011 ONCA 372, 2011 CarswellOnt 3121, E.E. Gillese J.A., Karakatsams J.A., Robert Sharpe J.A. (Ont C.A.); reversing (2010), 2010 ONSC 2605, 2010 CarswellOnt 3539, 72 M.P.L.R. (4th) 287, Matlow J., Pierce R.S. J., Power L (Ont. Div. Ct.). 350. Tax sales —Invalidating sale —Non-compliance with stat- utory requirements —Miscellaneous Property escheated to Crown In 2008, company owed $10,240 in taxes on property assessed at $199,000 in August 2008, city sent company letter advising that property would be auctioned at annual tax sale in Sep- tember unless delinquent taxes were paid, but letter was returned rm-delivered — City gave public notice of impending tax sale pur- suant to Local Government Act (LGA) — On September 29, 2008, purchasers were declared purchasers subject to company's right to redcem property within 12 months — City's letters to company in September 2008, and January, March, and July 2009 advising of tax sale and expiry date of redemption period were returned undeliv- ered One month after expiry of redemption period, city learned company dissolved on June 16, 2008 for failure to file annual re- ports, and was not restored until March 14, 2009, alter tax sale — City refused to complete transfer to purchasers as property had es- cheated to Crown before tax sale due to company's dissolution — Pu chasers brought application to compel city to complete sale — Appliication granted — Temporary escheat of property to Crown at time of tax sale did not nullify sale— City was directed to take all necessary steps to register purchasers as owners of property Pur- suant to s. 344 of Business Corporations Act (BCA), when com- pany is dissolved, company ceases for any purpose and its land for- feits to Crown under Escheat Act (EA) — Pursuant to s. 364(4) of BCA, restored company is deemed to have continued in existence as if it had not been dissolved, and upon revival, company's land is restored to corporation under s. 4(4) of EA — Once company was revived, combined effect of s. 364(4) of BCA and s. 4(4) of EA was to restore property to company and "erase" dissolution and es- cheat As between city and company, it was as if company had never been dissolved and escheat had not occurred — While LGA does not expressly provide for sale of escheated land, Ontario legis- Judgment orders: (416) 609-3800; Fax (416) 298-5094 lation merely makes clear what is implicit from joint effect of s. 364(4) of BCA and s. 4(4) of EA — Difference in language be- tween Ontario and British Columbia statutes did not support city's contention that LGA does not allow tax sale of land that has tempo- rarily escheated to Crown. Saini v. an Forks (City) (2011), 2011 Carswe➢BC 592, 20ll BCSC 320, 81 M.P.L.R. (4th) 106, 3 R.P.R. (5th) 1135 L.A. Fenlon J. (B.C. S.C.). 351. Tax sales —Redemption —MiscellaneousMunicipal- ity acquired owner's property at tax sale Dining redemption pe- riod, building on property was destroyed by fire Municipality ordered owner to demolish building, remove debris, and fill any re- maining excavation — Owner did not comply so municipality had work completed at cost of $175,279.85 — Municipality brought ac- tion against owner for cost of remediation — Municipality brought application for summary judgment— Application was dismissed Municipality appealed Appeal allowed Order of summary trial judge was set aside, and order was made that judgment in fa- vour of appellant be entered in amount of $175,279.85 Based on findings of summary dial judge and interpretation of provisions of Community Charter, municipality was entitled to recover remedial costs from respondent as owner and occupier of property in ques- tion at time of fire It was unnecessary to determine municipal- ity's second ground of appeal: whether summary trial judge re- versed onus of proof and required municipality to establish that owort did not have a right of indemnification against municipality. Prince George (City) v. Columbus Hotel Co. (1991) Ltd. (2011), 82 M.ALR. (4th) 186, 17 B.C.L.R. (5th) 149, 2011 CarswellBC 1057, 2011 BCCA 218, Hinkson J.A., Low J.A., Saunders J.A. B.C. C.A.); reversing (2010), 5 B.C.L.R. (5th) 138, 2010 BCSC 149, 2010 CarswellBC 245, 69 M.P.L.R. (4th) 80, Willcock L (B.C. S.C.). 352. 'Coning — Attacking vandity of zoning by -Lows — Grounds —Nan-conformity with municipal plan Respon- dent municipality L passed by-law to re -zone land from residential to residential multi -unit district to allow construction of seniors' housing Homeowners near affected land bad expressed concerns that re -zoned area was designated as high -risk flood area within municipality, which was contrary to its basic planning statement and that in passing amendment, municipality had exceeded its juris- diction and amendment was of no force and effectHomeowners brought application to quash by-lawApplication dismissedIn 2000 decision, Supreme Court of Canada stated "Municipal coun- cillors are elected by the constituents they represent and as such are more conversant with the exigencies of their community than are the courts. The fact that municipal councils are ... accountable to their constituents, is relevant in scrutinizing intra vires decisions. The reality that municipalities often balance complex and divergent interests in arriving at decisions in the public interest is of similar importance.... intra vires decision of municipalities be reviewed upon a deferential standard" — Province's appellant court consid- ered relationship of development plan and powers of council as set out in zoning by-law and pointed out that "[tlbc jurisprudence re- specting development plans is clear; they are mere guidelines and policies rather than rules and are normally not interpreted the same way as statute" Amendments to existing zoning by-law were within municipality's jurisdiction Development plan was merely guideline and policy rather than rule. Lane v. La Range (Town) (2011), 2011 SKQB 160, 2011 Car- swellSask 291, R.D. Maher J. (Sask. Q.B.). 353. Zoning — Enforcement of zoning by-laws — Practice and procedure on enforcementAppellant's premises was one-half of duplex and was located in area zoned as Residential District ("R4") Zoning Bylaw provided that premises located in R4 resi- dential district shall be only single-family dwellings or two-family dwelling units — Appellant appealed from order made 6 May 2010, which declared her to be in breach of 1965 Burnaby Zoning Bylaw and a 2004 Burnaby Building Bylaw, and required her to take all steps necessary to bring her premises into compliance with both by- laws within 90 days of order Appeal dismissed Occupancy Permit on which appellant relied cannot be taken tosupport argu- ment that her unit of duplex was approved for use as two family dwelling Evidence failed to meet relevance test, for it did not bear upon decisive or potentially decisive issue with respect to de- claratory and injunctive relief granted in case. Burnaby (City) v. Oh (2011), 2011 CarswellBC 1066, 2011.A BCCA 222, Groberman J., Hinkson LA., Rowles J.A. (B.C. PRIVACY AND FREEDOM OF LVFORMATION 354. Freedom of information — Provincial legislation — Prac- tice and procedure — Miscellaneous Information and Pri- vacy Commissioner of Ontario ordered release of substantial por- tion of report that had been withheld by city on basis that it concorned property matter dealt with by General Committee of Mu - pal Council in in camera meeting City brought application for judicial review — Application dismissed Adjudicator had ju- risdiction toreturn issue of exercise of discretion to city for further consideration — Decision was reasonable one, as city's representa- tions on exercise of its discretion did not show that it considered relevant factors in refusing to disclose exempt portions of record, nor did it show that it considered public and private interests in dis- closure and non -disclosure — While city argued that adjudicator had substituted its decision for that of city, that was not case. St. Catharines (City) v. Ontario (Information & Privacy Com- missioner) (2011), 2011 ONSC 2346, 81 M.P.L.R. (4th) 243, 2011 CazswellOnt 2121, Ferrier J, Lederer L, Swinton J. (Ont.Div. Ct.). PUBLIC LAW 355. Elections —Remedies for defeated candidates — Re- counts — In municipal elections — MiscelLmeous Post- election re-count litigation expenses — MDB was elected mayor in 2003 — MDB was defeated by LJ in 2006 by 90 votes — Two re- counts followed Second re-count was conducted pursuant to ju- dicial order, which found that 104 cast votes had not been counted— City was ordered to pay MDB $183,000 in costs related to post election re-count litigation — MDB was charged with vari- ous offences under Municipal Elections Act, 1996 for expending and receiving contributions in relation to post election litigation costs in manner that violated Act— All seven charges dismissed — MDB initiated and pursued his post election litigation as voter and not as candidate As voter, MDB was not bound by regulatory provisions of Act that would apply to candidate Ambiguity in Act must be resolved in favour of MDB so as not to preclude his right as voter or rights of any voters to have access to courts and to ensure validity of election process and proper counting of votes If lifigation seeking recount by MDB could only be undertaken by him as candidate and not voter, it would offend number of con - .lodgment orders: (416) 609-38W; Fax (416) 298-5090. 16 struts associated with purposive interpretation of Act and judicial authority associated with that interpretation Funds paid toward post election litigation were all outside ambit of contribution and expense provisions set out in ss. 66 and 67 of Act Limitation provisions of s. 92(4) of Act did not operate and prosecution of three counts were statute barred as having been commenced more PF,CUNIARY INTEREST Saskatchewan eh n one year after facts upon which they were based first came to informant's knowledge. Vaughan (City) v. Di Biase (2011), 2011 ONO 144, 82 M.P.L.R. (4th) 112, 2011 CarswellOnt 2054, Peter J. Wright J. (Ont. C J.). WORDS AND PHRASES* ♦ A pecuniary interest is not any interest that may remotely be described as a pecuniary interest ... s. 143(2)(j) of [the Municipalities Act, S.S. 2005, c. M-36.1] provides that 143(2) A member of council does not have a pecuniary interest by reason only of any interest. ... is so remote or insignificant that it cannot reasonably be regarded as likely to influence the member of council ... (Municipal law) Fleet v. Davies (2011), 82 M.P.L.R. (4th) 321, 2011 SKQB 15% 2011 CarswellSask 268 (Sask. Q.B.), at para. 14 McMurtry J. "An alphabetical list of individual words and phrases that are given judicial consideration in ttie cases digested in this iesue. Whenever possible, the entries arc taken verbatim from the judgment. NOTICE AND DISCLAIMER: All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any 10rm or by any means, electronic, mechanica4 Photocopying recording or otherwise, without the prior written consent of the publisher (Carswell). Carswell and all persons involved in the preparation and sale of this publication disclaim any warranty as to accuracy or currency of the publication. This publication is provided on the understanding and basis that none of Carswell, the author/s or other persons involved in the creation of this publication shall be responsible for the accuracy or currency of the contents, or for the results of any action taken on the basis of the information contained in this publication, or for any errors or omissions contained herein. No one involved in this publication is attempting herein to render legal, accounting, or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought The analysis contained herein should in no way be construed as being either official or unofficial policy of any governmental body. Printed in Canada by Thomson Reuters. Judgment orders: (416) 609-3800; Pax (416) 298-5094 Town of Aurora T/T 100 John West Way, Box 1000 Aurora, Ontario AV w®re /� j��-'� L4G 6,11 yoadre /a good cowpaky Phone: 905-727-3123 ext. 4217 Fax: 905-726-4732 Delegation Request www.a°`ora ca Please complete the following form. You may submit it to the Town of Aurora by EITHER: " Printing and faxing a copy to 905-726-4732 ` Saving this file to your computer and emailing it to coundlsecretariatstaff(cilaurora:ca Once your delegation request is received, the Customer and Legislative Services Department will contact you to confirm receipt Date 20-Feb-2012 _ Meeting date 21-FEB-2012 Subject REPORT NO. PL 12-002: pg 5 Lifting of Deferral Status within the Aurora Promenade Area Name Address Town / City Province Phone (daytime) IN POTGIETER Ontario Postal Code Fax number I — Phone (evening) f — Email address Do you require any Accessibility Accommodation? j—; yes )X'. No Name of group or person(s) being represented, if applicable: Self Brief statement of issue or purpose of delegation: the completeness of the description on the above subject item Personal information on this form is collected under the legal authority of the Municipal Act, as amended. The information is collected and maintained for the purpose of creating a record that is available to the general public, pursuant to Section 27 of the Municipal Freedom of Information and Protection of Privacy Act. Questions about this collection should be directed to the Town Clerk, Town of Aurora, 100 John West Way, Box 1000, Aurora, Ontario, L4G 6J1, Telephone 905-727-3123 ext. 4217. Print Form -w Customer and Legislative Services 905-727-3123 _ councilsecretariat@aurora.ca AuRORA Town of Aurora 100 John West Way, Box 1000 jfosore aLc000d, er, Aurora, ON L4G 6,11 Requests for delegation status, any written submissions and background information for consideration by Council or Committees of Council must be submitted to the Clerk's office by 4:30 P.M. ON THE MONDAY PRIOR TO THE REQUESTED MEETING. PLEASE PRINT COUNCIL/COMMITTEE/ADVISORY COMMITTEE DATE: FZ 19. '- /. -2 /07. SUBJECT: ����% P/� ��— on� ADDRESS: Street Address Town/City Postal Code PHONE: HOME: BUSINESS: FAX NO.: E-MAIL: DO YOU REQUIRE ANY ACCESSIBILITY ACCOMMODATION? BRIEF STATEMENT OF ISSUE OR PURPOSE OF DELEGATION f���✓,�/'-/%l�Ci ���i7�'% �%l/� �,x'/J.C�i'E1/i/1IG �✓ff `� Personal information on this form is collected under the legal authority of the Municipal Act, as amended. The information is collected and maintained for the purpose of creating a record that is available to the general public, pursuant to Section 27 of the Municipal Freedom of Information and Protection of Privacy Act. Questions about this collection should be directed to the Town Clerk, Town of Aurora, 100 John West Way, Box 1000, Aurora, ON UG 6.11, Telephone 905-727-3123, exf 4217. 0 Y l Gommurury