As the Twitter era comes to an end, I’m back to using the blog format to note things.
Municipal zoning by-laws are effectively ironclad unless a challenging party can prove bad faith.
Last week, Ontario’s Divisional Court released another decision confirming this.
What makes this decision noteworthy is that Cambridge’s City Council violated its procedural bylaw during the process of approving a site plan application.
In March 2022, Cambridge Council voted 5-4 to deny a Planning Act Site Plan application. The applicant appealed to the Ontario Land Tribunal.
On May 17, 2022, Council voted to reconsider their decision, and then voted 6-2 to approve the application.
There was no public notice of the reconsideration.
A resident’s association, “Blair Engaged,” filed a challenge of the reconsideration decision arguing the by-law was passed in bad faith, illegality, and lack of procedural fairness.
Under new Planning Act rules, third-parties do not have standing to appeal to the Ontario Land Tribunal.
The first test at the Divisional Court was gaining standing. The Court granted Blair Engaged public interest standing, but dismissed their application.
The Court ruled:
– “the City did not owe Blair Engaged a duty of procedural fairness in making the Decision.”
– “Further, to the extent the City may have owed the Applicant a duty of procedural fairness it was very limited and was met in this case.”
– “Although we conclude that Council breached its procedural by-law by failing to give adequate notice of the motion to reconsider the matter, Council did not act in bad faith in doing so and, having regard to all the circumstances, we decline to grant the relief sought by Blair Engaged.”
The lands on Old Mill Road in Cambridge have a lengthy backstory. With the support of Cambridge Council, the owners gained a Ministrial Zoning Order (O. Reg 600/21) to build a 1.1-million-square-feet distribution centre.
The MZO overrides the usual Planning Act zoning process.
In approving a Site Plan, the Council is not passing a by-law, the MZO did that for them.
Points on Procedure, Decision-Making, and Deference to Council’s Legislating
The court rules the Council breached its own Procedural By-law by not giving notice of the reconsideration, and there were no urgency to the reconsideration to justify the lack of notice.
Nonetheless, as the Council did not owe any fairness in the matter, this was not grounds for striking down the bylaw. The public had the opportunity to make submissions at the first meeting.
“The Decision is also significant to the Applicant’s members in the sense that they feel strongly about the plan for a major distribution centre that would permanently alter the visual entry to Blair Village, its roads and traffic patterns, among other things. Nonetheless, the site plan approval process does not affect the legal rights or obligations of the Applicant or its members. While they might be affected by the decision, their rights are not,” wrote the Court.
The test for “bad faith” or “Illegality” is very high.
“In order to conclude that Council acted in bad faith, this Court must first find that there is no other rational conclusion than that a majority of Council was acting for an improper purpose or “unreasonably, arbitrarily and without the degree of fairness, openness and impartiality required of municipal government”: Grosvenor v. East Luther Grand Valley, 2007 ONCA 55, 84 O.R. (3d) 346 at para. 44.”
“Council’s reconsideration of the application, in breach of the notice requirements under its own Procedural By-Law, raises concerns about the haste and lack of transparency with which the Decision was made. The record of the May 2022 meeting reflects a concern about litigation before the OLT. However, the record far from supports that there is no other rational conclusion than that a majority of Council was acting for an improper purpose or unreasonably, arbitrarily and without the degree of fairness, openness and impartiality required of municipal government. ”
Production Details v. 1.0.0 Published: April 3, 2023 Last edited: April 3, 2023 Author: Joey Coleman Edit Record v. 1.0.0 original version