ONTARIO MUNICIPAL BOARD Commission des affaires municipals de l Ontario

Transcription

1 ONTARIO MUNICIPAL BOARD Commission des affaires municipals de l Ontario O.M.B. Case No. PL IN THE MATTER OF a proceeding under subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Appellant: Appellant: Appellant: Subject: Municipality: O.M.B. Case No.: O.M.B. File No.: Ontario Limited Ontario Inc Ontario Inc Ontario Inc. and others Failure by the Regional Municipality of York to announce a decision respecting the proposed new Official Plan for the City of Vaughan City of Vaughan PL PL SECTION 43 REVIEW REQUEST RESPONDING SUBMISSIONS of the REGIONAL MUNICIPALITY OF YORK July 14, 2016 Borden Ladner Gervais, LLP Scotia Plaza 40 King Street W. Toronto, ON M5H 3Y4 Pitman Patterson Tel: Fax: ppatterson@blg.com The Regional Municipality of York Yonge Street, 4 th Floor Newmarket, ON L3Y 6Z1 Frank Santaguida Tel: ext Fax: (905) Frank.Santaguida@york.ca Counsel for the Regional Municipality of York

2 TO: Fasken Martineau DuMoulin LLP 333 Bay Street, Suite 2400 Bay Adelaide Centre Toronto ON, M5H 2T6 W. Thomas Barlow Tel: Fax: Sarah Jane Turney Tel: Fax: Counsel for Argo Lumber Inc. and Alpa Roof Trustees Inc. AND TO: Borden Ladner Gervais, LLP Scotia Plaza 40 King Street W. Toronto, ON M5H 3Y4 Rick Coburn Tel: Fax: Isaac Tang Tel: Fax: Counsel for the City of Vaughan AND TO: Loopstra Nixon LLP 135 Queen Plate Drive, Suite 600 Toronto ON M9W 6V7 Quinto M. Annibale Tel: Fax: Steven Ferri Tel: Fax:

3 Counsel for CRH Canada Group Inc. (Appellant No. 129), Ontario Limited (Appellant No. 130) and Blair Building Materials Inc. (Appellant No. 131) AND TO: Ontario Municipal Board 655 Bay Street, Suite 1500 Toronto ON, M5G 1E5 Attn: Mary Ann Hunwicks, OMB Secretary Tel: Fax:

4 ONTARIO MUNICIPAL BOARD Commission des affaires municipals de l Ontario O.M.B. Case No.: PL IN THE MATTER OF a proceeding under subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Appellant: Appellant: Appellant: Subject: Municipality: O.M.B. Case No.: O.M.B. File No.: Ontario Limited Ontario Inc Ontario Inc Ontario Inc. and others Failure by the Regional Municipality of York to announce a decision respecting the proposed new Official Plan for the City of Vaughan City of Vaughan PL PL SECTION 43 REVIEW REQUEST by Argo Lumber Inc. and Alpa Roof Trusses Inc. RESPONDING SUBMISSIONS of the REGIONAL MUNICIPALITY OF YORK INTRODUCTION- THE REGION S POSITION 1. The Regional Municipality of York (hereinafter the Region ) hereby submits its responding submissions to the request by Argo Lumber Inc. and Alpa Roof Trusses Inc. (collectively the Requestor ), dated May 13, 2016, that the Chair of the Ontario Municipal Board exercise authority pursuant to Section 43 of the Ontario Municipal Board Act to review the decision of the Board in Case No. PL111184, dated August 8, 2013 (the Request ). 2. More specifically, the Requestor has requested that the Chair, pursuant to Section 43, rescind that part of the Decision and Order of the Board dated August 8, 2013 (the Partial Approval Order ) that reads as follows: AND THE BOARD FURTHER ORDERS that in respect of Appeals 118, 129, 130 and 131, no land budget argument including, without limitation, s (b), will be raised by any current or future appellant, party or participant, the City or

5 the Region to preclude a change in the proposed residential designation of the lands that are the subject of those appeals. (the Scoping Provision ) The Requestor also seeks, in the alternative, an Order of the Board directing that a motion be heard to review the Scoping Provision. 3. The Region respectfully requests that the Board deny the relief sought by the Requestor as set out above. 4. The Region s interest in this proceeding is not the land budget case per se and whether the hearing would be more complex if land budget issues are permitted, but rather the challenge that the Request poses to the orderly progression of complex, multi-party official plan appeals toward full and final disposition. It is the Region s apprehension, set out below, that the outcome sought by the Requestor could unwind or impair the orderly progress of the Vaughan Official Plan 2010 approval process. More broadly, a Board decision granting the relief sought would be a precedent relied upon by other parties in comprehensive official plan appeal proceedings that could have the effect of destabilizing the orderly scoping and partial approval sequence employed as a critical case management mechanism, particularly in Provincial Plan conformity exercises. 5. The Region sets out below its response to each of the grounds of complaint advanced in the Request. The Region s submissions commence with a short analysis of the test for granting a request pursuant to Section 43. THE HIGH THRESHOLD FOR GRANTING A SECTION 43 REVIEW REQUEST The Board s Jurisdiction to Rescind an Order or Grant a Motion 6. The Board derives its jurisdiction to review or rescind a decision from Section 43 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28, as amended. This section provides that [t]he Board may rehear any application before deciding it or may review, rescind, change, alter or vary any decision, approval or order made by it. Ontario Municipal Board Act, R.S.O. 1990, c. O.28, s. 43, Joint Brief of Authorities of York Region and the City of Vaughan ( BoA ), Tab 3. 2

6 7. The exercise of the Board s powers under Section 43 is governed by Rules of the Board s Rules of Practice and Procedure. Application of these Rules to a request is mandatory and exhaustive: Rule 110 states that Rules shall govern an exercise of powers pursuant to Section 43. Ontario Municipal Board Rules of Practice and Procedure, Rules , BoA Tab 4. Both forms of relief sought by the Requestor, rescission of the Scoping Provision and a motion for review of that provision, must be addressed in accordance with the governing Rules, The Rules provide a cascade of potential outcomes. Rule 115 defines the possible outcomes of a review request: the Board can grant the request for review, in which case the Board will set a hearing date or a motion date (as applicable), or the Chair can dismiss the request. Rule 116 defines the possible outcomes of a motion for review: the Board can order a rehearing, or can dismiss the request. Rule 118 defines the possible outcomes of a rehearing: the Board may review, rescind, change, alter or vary the decision or order. 9. The Region submits that the process applicable to a request to rescind a decision, such as the request framed by the Requestor, is as set out in the sequence of possible outcomes in Rules 115, 116 and 118, the net result of which is that a rehearing is required in order to determine the merits of the rescission request. Rescission is the possible end result of a successful review request following a rehearing. Section 43 authorizes rescission as an end result, but the Rules make a rehearing a precondition to rescission. 10. The Requestor has requested a rescission order as its primary relief, and a motion for review as alternative relief. It is the Region s submission that the Requestor cannot be granted a rescission order as requested without being granted a rehearing first. The Test on a Motion for Review Rule The Board Chair may grant a request and order a motion to review the decision (or order a rehearing, which is not expressly requested in this case) only if satisfied that the request 3

7 for review raises a convincing and compelling case in respect of one or more of the criteria set out in clauses (a) to (e) of Rule These criteria are that the Board: (a) (b) bias; acted outside its jurisdiction; violated the rules of natural justice or procedural fairness, including those against (c) made an error of law or fact such that the Board would likely have reached a different decision; (d) heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or (e) should consider evidence which was not available at the time of the hearing, but that is credible and could have affected the result. Ontario Municipal Board, Rules of Practice and Procedure, Rules , BoA Tab The test on a motion for review is whether one or more of the matters set out in Rule has been established Ontario Ltd. v. Toronto (City), [2007] O.M.B.D. No. 670, 38 M.P.L.R. (4th) 148, at para 10, BoA Tab The requestor must present a convincing and compelling case that one or more of the criteria enumerated in Rule has been established. This test has been explained by the Board in the following way: a compelling case is one that is so attractive as to be overpowering and irresistible; one that leaves the Board thinking I am constrained from considering any other path ; one that simply leaves no option but to grant the relief sought. A convincing case, likewise, is one that brings the Board to thinking, I am moved, I am sold, I am induced to commit to what you want me to do. There can be no shades of gray at the end of it; there can be no remaining ambiguity blurring a request At the same time, a request cannot be found to be convincing and compelling if, following submissions, the Board cannot identify which natural justice or procedural fairness rules or rights have been violated, or what was procedurally prejudicial A request cannot be found to be convincing or compelling if, to arrive at the destination sought by the requesting party, the Board is left to fill in gaps or make assumptions. [emphasis added] 4

8 Citizens Coalition of Greater Fort Erie v. Niagara (Regional Municipality), [2013] O.M.B.D. No. 450, paras 47 and 48, BoA Tab 10. The Requestor s Grounds Under Rule The grounds for the Request are stated at page 2 of the Request, with the assertions that the Board: (a) (b) (c) acted outside its jurisdiction; violated the rules of natural justice or procedural fairness; and should consider evidence and submission [sic] which were not available at the time of the hearing, but that are credible and could have affected the result. 15. The Requestor s grounds for review engage the criteria in Rules (a) and (b), and in part, criterion (e). 16. With respect to criterion (e), the Requestor has framed its ground (c) as the Board should consider evidence and submission [sic] which were not available at the time of the hearing. Criterion (e) does not contemplate the Board considering submissions that were not available at the time of the hearing, only evidence. The Requestor s assertion that the Board should consider submissions now, that were not available at the time of the hearing, is contrary to the Board s Rules. A Rehearing is a Rare and Extraordinary Remedy 17. It is well established that the Board will not routinely review decisions and that its powers under Section 43 should only be applied in the circumstances listed in Rule , consistent with the Board s role as an administrative tribunal, not an appellate body. 18. In Canada Mortgage and Housing Corp. v. Vaughan (City), the Board summarized this common thread in Board decisions on the question of review: 5

9 The jurisprudence of the board in this regard has been most clear. The past decisions indicate that we are reluctant to grant a s. 43 review unless there is a jurisdictional defect, or where there has been a change of circumstances or new evidence available, or where there is a manifest error of decisions or if there is an apprehension of bias or undue influence. While the list may not be exhaustive and the board's discretion should not be fettered unduly on a priori basis, there is a common thread running through all the cases dealing with this question of review. We cannot allow any of our decisions to be reviewed or retried for some flimsy or unsubstantial reasons. As an adjudicative tribunal which renders decisions that have profound effects on public and propriety interests, our decisions should be well-considered and must have some measure of finality. If a motion is launched on grounds other than those enumerated, it should be to the Divisional Court which has either the competence and the authority to overturn our findings of fact and law. It never has been nor would ever be our wont to constitute ourselves as an appellate body, routinely reviewing or rehearing our own decisions. [emphasis added] Canada Mortgage and Housing Corp. v. Vaughan (City), [1994] O.M.B.D. No. 1941, 31 O.M.B.R. 471, at para. 9, BoA Tab 11, cited with approval in Shanahan v. Russell, [2000] O.J. No. 4762, 138 O.A.C. 246, at para 11, BoA Tab The Board has been clear that a rehearing is a rare and extraordinary remedy. In Ontario Ltd. v. Ottawa-Carleton (Regional Municipality), the Board held: As we have stated elsewhere, a review of this nature is of the greatest gravity. Notwithstanding what is involved is a procedural matter, the applicable considerations are no less onerous. We are governed by a body of jurisprudence consistently requiring the most scrupulous and careful approach as a rehearing pursuant to section 43 of the OMB Act is a remedy that is at once rare and extraordinary. [emphasis added] Ontario Ltd. v. Ottawa-Carleton (Regional Municipality), [2004] O.M.B.D. No. 643, 7 M.P.L.R. (4th) 140, at para. 3, BoA Tab In the Aurora 2C case, the Board noted that while the CMHC case pre-dated the Board s Rules of Practice and Procedure, the case adumbrate[s] the present rules. The Board went on to state: Pursuant to Rule , the exercise of discretion to order a hearing is confined strictly to the convincing and compelling case In short, the bar for review remains very high. [emphasis added] Aurora 2C West Landowners Group Inc. v. Aurora (Town), [2012] O.M.B.D. No. 276, para. 10, BoA Tab 14. 6

10 Decisions Must have a Measure of Finality 21. The public interest is best served when Board decisions have a measure of finality. In North Barrie Developments Ltd. v. Barrie (City), the Board held: There is much at stake in Board hearings and much riding on Board decisions. Parties to a hearing ought to be able to rely, to the greatest extent possible, therefore, on the finality of Board decisions. There is clear legislative intent that a Board decision ought to bring some finality to a matter. It is for these reasons that Practice Direction No. 12 states A request to review a decision is granted only in the most extraordinary instances. [emphasis added] North Barrie Developments Ltd. v. Barrie (City), [1999] O.M.B.D. No. 439, 5 M.P.L.R. (3d) 44, at para 6, BoA Tab In Oravec v. Sarnia (City) Committee of Adjustment, the Board noted a recurrent theme, in decisions on motions for review, that there must be some measure of finality to Board decisions: If there is a recurrent theme to the Board jurisprudence on section 43 reviews, it is that there must be some measure of finality to its decisions. Section 43 should not become the next level of appeal. Mr. Justice White concludes that there must be reasonable grounds for the Board to grant a new hearing. It is my finding that there are no reasonable grounds on which to grant a new hearing. As such, the motion is dismissed and there will not be a re-hearing by the Board. [emphasis added] Oravec v. Sarnia (City) Committee of Adjustment, [1998] O.M.B.D. No. 1590, at para. 18, BoA Tab 16. INITIAL SCREENING OF THE REQUEST SHOULD RESULT IN DISMISSAL 23. Rule 113 states instances when the Board will not consider a request for review, including where the request is filed 30 days after the date of the Board s written decision unless the Chair determines that there is a valid and well-founded reason to extend this time. 24. The onus rests on the requesting party to explain why a request should be considered by the Chair when the request is filed more than 30 days after the decision date. The 7

11 explanation must be valid and well-founded; there must be evidence as foundation for the explanation. The importance of timeliness and well-founded exceptions to the deadline is summarized in the North Barrie case, and relates to the legal principles articulated above: It is incumbent on the moving party in these motions to explain such a lengthy delay in view of the legislative intent that a Board decision ought to bring some finality to the matter and the right of parties to rely on that finality. North Barrie, supra, at para. 12, BoA Tab The Request is dated May 13, The Partial Approval Order, containing the impugned Scoping Provision, was issued on August 8, 2013, just shy of three years before the Request was made. 26. In support of the Request, the Requestor relies on the Affidavit of Roy Mason, sworn April 13, 2016 (Requestor s Record, Tab 2) (the Mason Affidavit ). The Mason Affidavit provides absolutely no evidence to explain the delay in filing the Request. Even the Request itself does not (a) request any relief in respect of the filing deadline, and (b) provide reasons for, or an explanation of, the delay. The latter is probably appropriate since no evidence is provided in the Mason Affidavit. 27. The Mason Affidavit confirms that the Requestor was aware of the Vaughan Official Plan review process even before the official plan was adopted in 2010, since Mr. Mason was retained by Requestor in respect of that process in Mr. Mason made submissions on the official plan to the City, on behalf of the Requestor, prior to adoption of the Vaughan Official Plan 2010 ( VOP 2010 ). Clearly, the Requestor was engaged in the planning process. 28. The Requestor did not appeal the VOP It obtained party status to the VOP 2010 appeals on or about September 10, 2013, after discovering that several appellants had appealed the designation for the subject area including the Requestor s lands. No evidence is provided regarding the extent to which the Requestor tracked the planning and appeal process between adoption of the VOP 2010 on September 7, 2010 and the date on which it was made a party in September

12 29. The Requestor was made a party approximately one month after the Partial Approval Order was issued. The Scoping Provision was therefore in existence when the Requestor joined the VOP 2010 appeal process as a party in However, it was not until May 2016 that the Requestor sought a review of the Scoping Provision, despite: (a) (b) (c) according to the Mason Affidavit, the Requestors being aware in 2013 that Appellants 118, 129, 130 and 131 (the latter three are hereinafter the Appellants ) had appealed the applicable land use designation; the Scoping Provision expressly referencing the limitation regarding land budget matters on the future hearing of the relevant appeals; and the express reference in the Scoping Provision to the prohibition applying to any current or future appellant, party or participant. 30. The Request discloses no evidence to explain the Requestor s failure to seek a Section 43 review between September 2013 and May Further, there is no evidence explaining why the Requestors did not seek such a review forthwith following receipt of the Appellants Notice of Motion for approval of a settlement of their appeals, dated November 17, 2015 returnable December 2, 2015 (the Settlement Motion ). Neither the Mason Affidavit nor the Request provides a valid and well-founded reason for these procedural failures, and the Region therefore respectfully submits that the Board should dismiss the Request in accordance with Rule 113. RULE (A) THE BOARD DID NOT ACT OUTSIDE ITS JURISDICTION 31. The Requester asserts that the Board acted outside its jurisdiction by fettering its discretion and decision making power, through the Provision, in a manner that prevents it from following the mandatory direction contained at section 2.1 of the Planning Act. 32. Section 2.1 of the Planning Act provides: When an approval authority or the Municipal Board makes a decision under this Act that relates to a planning matter, it shall have regard to, (a) (b) Any decision that is made under this Act by a municipal council or by an approval authority and relates to the same planning matter; and Any supporting information and material that the municipal council or approval authority considered in making the decision described in clause (a). 9

13 Planning Act, R.S.O. 1990, c.p.13, section 2.1, BoA Tab 1. The foregoing wording of Section 2.1 pre-dates Bill 73 which largely came into force on July 1, 2016, but remains applicable to this case under the transition rules for Section 2.1 found in O. Reg. 174/16, section 2. O.Reg. 174/16, Transitional Matters Relating to the Smart Growth for Our Communities Act, 2015, BoA Tab The Requestor asserts that the Scoping Provision prevents the Board from considering all of the evidence that was considered by Vaughan City Council when it adopted the Official Plan in 2010, including the Hemson Report. By evidence, the Region understands the Requestor to mean the supporting information and material considered by Council. 34. The Region rejects this assertion: there is nothing in the Scoping Provision that would preclude the parties placing before the Board at the Settlement Motion hearing all supporting information and material that was considered by Council in 2010, including the Hemson Report. The Board is entitled to that material, and should have regard to it. That is what Section 2.1 requires. Nothing in the Scoping Provision prevents these steps from occurring. 35. The Requestor then asserts that the Board must scrutinize Council s decision, and the way this is done is by allowing parties to make submissions and lead evidence on land budget issues, so that the Board can properly consider the Hemson Report. In the Region s respectful submission, the Board can have regard to the information and material that was before Council without hearing submissions and further evidence in support of or rebutting that information; the latter is not a precondition to the former. In fact, the Rutherford, Re case cited by the Requestor indicates that having regard requires of the Board a thoughtful review which includes an independent analysis (emphasis added; Requestor s Record, Tab 4, para. 34). There is nothing in the Scoping Provision that limits the Board s independent exercise of its discretion or decisionmaking powers. 10

14 36. In the Region s submission, none of the cases cited by the Requestor in its Request stand for the proposition that the only way the Board can discharge its obligation to have regard to the supporting information and material before council is to allow the parties to make submissions and lead further evidence in respect of that same material. In this case, the Board has determined through the Scoping Provision that the issue of land budget will not be dealt with in argument and evidence, but that does not preclude the Board from receiving and giving independent consideration to the Hemson Report, if the Board deems that report relevant to the issues before it. As stated in the Spring Village case cited by the Requestor: While the Board is required to consider the supporting information and material, the extent to which such information and material are relevant to a proper consideration of the merits of the matters will inform the weight the Board gives to such information and material. (Requestor s Record, Tab 6, para. 22) 37. The Divisional Court in Minto, still the leading case on Section 2.1, provided the following guidance on the Board s duty under that section: The words have regard to do not by themselves suggest more than minimal deference to the decision of Municipal Council. However, in the context of the Planning Act, and balancing the public interest mandates of both the Board and the municipality, I would agree with Member Stefanko in Keswick Sutherland that the Board has an obligation to at least scrutinize and carefully consider the Council decision, as well as the information and material that was before Council. Ottawa (City) v. Minto Communities Inc., [2009] O.J. No. 4913, para. 33, BoA Tab 17. There is nothing in the Minto decision that dictates that the Board must allow full argument and evidence in order to scrutinize the Council decision and the materials that were before Council. To interpret the Board s duty as broadly as suggested by the Requestor would be to negate the Board s authority to control its own procedures and to scope issues for efficient hearing, as further addressed below. 11

15 RULE (B) THERE HAS BEEN NO DENIAL OF NATURAL JUSTICE The Test for Denial of Natural Justice and Procedural Fairness 38. The Requestor asserts that the Scoping Provision, by essentially eliminating land budget as a contested issue in the Settlement Motion hearing, deprives the Requestor of its right to be heard, seriously and materially impacts the Requestor s legal rights including the right to make full submissions on the merits of the Settlement Motion, and precludes the Board from making a full and fair decision. The Requestor effectively asserts that scoping of the issues on the Settlement Motion hearing denies it procedural fairness. 39. The grounds set out in Rule (b) are that the Board violated the rules of natural justice or procedural fairness, including those against bias. The question on review is whether the procedure and decision meet the requirements for a fair procedure. 40. Natural justice and fairness are procedural rights imposed by common law and statute. The rules of natural justice developed by the common law apply to judicial and quasijudicial decisions, and are comprised of two main elements: the right to be heard and the right to an impartial decision maker. The doctrine of procedural fairness has developed in respect of administrative decisions that affect the rights, privileges or interests of an individual, and requires public decision makers to act fairly when making such decisions. These procedural entitlements will depend on the particular circumstances, and will generally involve the opportunity to know the case to meet and to make submissions to the decision maker, and in certain circumstances may require that the decision maker provide reasons for the decision Ontario Ltd. (c.o.b. Attia Quarries) v. Ramara (Township), [2004] O.M.B.D. No. 154, 16 M.P.L.R. (4th) 282, at para 6, BoA Tab The Supreme Court of Canada has articulated the variable nature of the content of the duty of procedural fairness: As has been noted many times, the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case [citations omitted]. 12

16 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para. 79, Requestor s Record, Tab 8. Scoping in a Growth Plan Hearing does not Impair Procedural Fairness 42. In this case, procedural fairness must be assessed in the context of a Growth Plan conformity exercise involving a new official plan for the City of Vaughan and 157 appeals of that official plan to the Ontario Municipal Board. 43. The ability of a municipality undertaking a Growth Plan conformity exercise through the adoption of a new official plan, or substantial amendment to an existing official plan, to efficiently manage a high number of appeals is critical to the ultimate approval and implementation of the new official plan document. Efficient case management is also essential for the prudent use of Board and party resources and achieving a just process through the timely disposition of appeals. 44. There is a public interest in ensuring that official plans are approved and brought into force so as to implement provincial policy at the local level in as timely a way as possible. Municipalities have statutory obligations to achieve such conformity. A host of municipal planning and financial decisions flow from implementation of the Provinciallyled policy regime. 45. The foregoing concerns inform the Board s Practice Direction Growth Plan Hearings. The Practice Direction states: This Practice Direction is intended to inform the parties and the public of processes that should be used to ensure a fair, cost-effective and efficient process for resolving these matters. Parties should apply the best practices in this Practice Direction to facilitate a timely and fair process. Practice Direction Growth Plan Hearings, para. 2, BoA Tab An essential case management tool employed by municipalities, such as the City of Vaughan, and the Board, is scoping of appeals so as to permit portions of the official plan to be approved without prejudice to the fair hearing rights of appellants who have scoped their appeals and consented to the partial approval. This scoping process is reflected in 13

17 the Partial Approval Order at issue in this Request, and in subsequent partial approval orders issued in Case No. PL Practice Direction. Scoping is entirely consistent with the Board s 47. The Board has determined that scoping of issues for hearing is both legal and necessary for the administration of large, multi-party official plan hearings. Official Plan proceedings, the Board stated: In the York Region The Board endorses fully the principle of reciprocity: that the procedural refinements for the hearing, which should include issue identification, phasing designs and work schedules must march in concert with a steady progression towards the path of partial approvals. Both paths are important. Neither should be neglected. Neither should be the exclusive tool. In respect of those parties with whole plan appeals who resisted scoping of issues, the Board in the same decision stated: However, after the appeals have been launched and once the pre-hearing process commences, the Board can issue directions and impose obligations for specificities. Particularly at a stage when hearing organization is involved, the Board has the authority to make demands for scoping on any party appearing before it. Decision from OMB Case Nos. PL101128, PL101233, PL and PL issued June 22, 2012, pp. 5 and 6-7, BoA Tab The Board clearly has statutory authority to scope issues for hearing by virtue of Sections 37 and 91 of the Ontario Municipal Board Act. Ontario Municipal Board Act, R.S.O. 1990, c.o.28, as amended, BoA Tab Returning to the context within which the Requestor has alleged that the Scoping Provision denies procedural fairness and natural justice, it should be considered that the first pre-hearing conference in the VOP 2010 appeals was held on November 14, The appeal proceedings are still continuing almost four years later, with 54 appeals fully resolved and some 103 appeals still outstanding in a variety of forms and case management streams, as set out in Exhibit D to the Affidavit of Steven Dixon sworn April 21, 2016 (the Dixon Affidavit ) filed by the City in its Responding Record. 14

18 50. In this context, it is critical that the Partial Approval Order of the Board have a strong measure of finality, particularly as that Order was the first partial approval order in the VOP 2010 proceedings and brought into force the majority of the Land Use schedule for the VOP Appellants and other parties to the VOP 2010 proceedings, and even the public at large, must be able to rely upon the series of orders and decisions issued by the Board over the last three years as being final and not subject to change, lest there be an unwinding of the sequence of decisions rendered. This principle is particularly important where a new party joins proceedings mid-stream, as the Requestor did in September In the context of this case as described above, the Requestor should be taken to be subject to all orders issued prior to the Requestor being granted party status, so that the orderly dispositions of appeals and partial approvals of the VOP 2010 are not upended. 51. The relief sought by the Requestor would undermine the process by which portions of the VOP 2010 were approved. In this instance, removal of the land budget argument from the scope of a future hearing on the Appellants appeals was essential to achieving the consent of all appellants and parties to the approval of portions of the VOP 2010 as set out in the Partial Approval Order (see the Affidavit of Quinto Annibale, sworn April 22, 2016, filed as part of Exhibit M-4 on the return of the Requestor s motion April 28, 2016). If appellants cannot feel certain that scoping concessions made through Board case management and Orders to facilitate partial approvals will not later prejudice their appeals, appellants will not effectively or willingly participate in these case management processes. There is a compelling public interest in maintaining the integrity of this case management process. This public interest is reflected in the codification of such practices in the OMB Practice Direction Growth Plan Hearings. 52. The relief sought by the Requestor could have the effect of unwinding the partial approval of the VOP 2010 achieved through the Partial Approval Order, and potentially, partial approval orders granted since By seeking to introduce evidence regarding the City s land budget on a City-wide basis and the appropriate allocations to employment and residential designations, the Requestor is essentially seeking to open up to fresh examination the VOP 2010 land use schedules and associated policies now 15

19 largely approved through scoping and partial approvals. Partial approval of the VOP 2010, including a number of Secondary Plans, has been granted by the Board in its orders of July 23, 2013; December 2, 2013; February 12, 2014; March 26, 2014; September 30, 2014; February 24, 2015; April 29, 2015; June 15, 2015; November 18, 2015; and March 23, There have been numerous site-specific settlements and associated Orders pertaining to land use designations since The Requestor has not, however, specifically requested a review of the entire Partial Approval Order, just the Scoping Provision. In the Region s respectful submission, the Requestor s approach fails to fully consider the consequences of the rescinding order sought: if the Scoping Provision is rescinded, how then does the land budget case get put into evidence without calling into question the land use designations (and associated policies) already approved through the Partial Approval Order and the subsequent partial approval orders noted above? A City-wide examination of the land budget necessarily engages those VOP 2010 land use schedules now partially approved. 54. The Region s apprehension about the broader consequences of rescinding the Scoping Provision are not mere speculation. Already there have been two responses from other appellants that suggest partial approvals already granted would be under threat: (a) In the Appellants response to the motion made by the Requestor returnable on April 28, 2016, the Notice of Response to Motion in the Appellants Record (marked as Exhibit M-4 on the hearing of the motion on April 28) sought the following alternative relief: 4 b. declaring Schedules 1, 13, and 14(b), the Preambles to Policies and Policies (b) and (g) ( Scoped Policies A ) and the Preamble to Policies and and Policies , , , , , , , , , , , , and ( Scoped Policies B ), which my client had under appeal and has since scoped, as under appeal in their entirety by the Respondents [the Appellants as herein defined] despite these Schedules, Preambles, and Policies already being brought into effect on a City-wide basis by the Board; and. Schedule 1 is the Urban Structure schedule, Schedule 13 is the Land Use schedule, and Schedule 14(b) is the schedule showing Areas Subject to Area 16

20 Specific Plans. The Appellants, in the relief requested above, essentially sought an order of the Board reversing the partial approval of these schedules and the enumerated policies on a City-wide basis. This was in direct response to the Requestor s motion seeking to add land budget matters to the Issues List for the hearing of the Settlement Motion; and (b) Counsel for other appellants wrote to the Board by on the eve of the April 28 motion to express concern about the possible prejudice to those appellants if land budget matters were adjudicated in the Settlement Motion hearing. Ms. Laura Bissett s , dated April 27, 2016, was filed with the OMB caseworker on behalf of her clients and on behalf of two other counsel and their respective clients, and Ms. Bissett attended to watch the hearing of the motion on April 28, It is reasonable to expect that other parties to the VOP 2010 will share these concerns about the Requestor s attempt to undo the Scoping Provision and introduce land budget issues into the Settlement Motion hearing. 55. The Requestor is not being denied the right to be heard in the VOP 2010 appeals process. The Requestor was granted full party status without any limitations on its participation, and without any limits on the case it can call on the hearing of the Settlement Motion other than the Scoping Provision which applies to all parties and is not specific to the Requestor. The limitation on issues to be addressed is a fair limit that reflects other broader policy and justice objectives outlined above. RULE (E) THERE IS NO NEW EVIDENCE 56. As noted above, this ground for review is limited to evidence which was not available at the time of the hearing for the Partial Approval Order in 2013, and does not extend to submissions that the Requestor potentially could have made at that time. 57. The Region submits that there is no new evidence adduced by the Requestor, in the Mason Affidavit or otherwise, post-dating the Partial Approval Order: (a) The Requestor has provided no evidence that the land budget issue is relevant to the determination of the Settlement Motion; at best, the Mason Affidavit poses a 17

21 hypothetical scenario in paragraph 14: If, for example,. No concrete evidence or opinion is provided to articulate why land budget issues are relevant. Following Concerned Citizens of Greater Fort Erie, the Board should not, on this review request, fill in this gap or make an assumption; (b) (c) The Requestor observes that the Settlement Motion advances a settlement that includes a change in the proposed residential designation of the subject lands, and that this settlement was reached after issuance of the Partial Approval Order. This outcome was specifically contemplated by the parties and the Board at the time of the Partial Approval Order, and was expressly captured in the wording of the Scoping Provision. There is nothing new for the Board to contemplate; and The only circumstance that could not have been known with specificity at the hearing for the Partial Approval Order is that the Requestor would later be added as a party. The Scoping Provision does, however, anticipate that there may be future appellants or parties added to the proceeding. The Region submits that the Requestor cannot rely on this new circumstance as the basis for satisfying Rule (e), as it is a self-fulfilling outcome and every new party to a proceeding could use this approach as the basis for review of previous orders in a proceeding. THERE IS NO EVIDENCE OF PREJUDICE TO THE REQUESTOR 58. Rule does not enumerate prejudice as a stand-alone basis for determining whether a review request should be granted, and accordingly the Region submits that the Requestor s claims to be prejudiced should be disregarded. 59. The Requestor asserts at paragraph (j) of the Request that the settlement, if approved following the Settlement Motion hearing, would cause serious prejudice to the Requestor by impairing the value and development potential of its lands. 60. The Region submits that no weight should be given to this claim. First, there is absolutely no evidence offered by the Requestor to support this assertion. The Mason Affidavit is silent on this topic. Second, the impact of Board decisions made pursuant to 18

22 Planning Act authority on the value of land and development potential is not a proper planning consideration. As stated by the Board in Spring Village: The Board has a long history of refusing to engage in dollar planning and consider the market value of a property when assessing the appropriateness of land use proposals. Spring Village Inc. v. Waterloo (City), 2009 CarswellOnt 4314, para. 14, Requestor s Record, Tab The Requestor also asserts prejudice in paragraph (mm) of the Request, claiming that dismissal of the relief sought would deny the Requestor s right to be heard on the land budget issue and seriously limit its ability to respond to the Settlement Motion. In the Region s respectful submission, the Requestor s Record does not prove or demonstrate prejudice to the Requestor at all; there is simply this bald assertion. There is no evidence in the Mason Affidavit to found this assertion of prejudice. Mr. Mason does not opine that exclusion of the land budget issue would cause prejudice to the Requestor, nor does he explain how such prejudice might arise. Mr. Mason s opinion that land budget matters (including the Hemson Report) could be relevant does not equate to an opinion that exclusion of such evidence will cause prejudice. In the Region s respectful submission, the Board ought not to fill in the gap in the evidence offered by the Requestor. 62. The Region submits that the Requestor s assertion at paragraph (jj) of the Request, that the relief sought will cause no prejudice to any other party, is not correct. The prejudice to the public process has been described above: the undermining of confidence in the finality of the Board s orders in the VOP 2010 process; the potential consequences for other appellants relying on those orders; and the threat to orderly progression of the VOP 2010 toward full approval. These aspects of prejudice are articulated in the Dixon Affidavit, which provides the only evidence of prejudice in the review request before the Board. STATUTORY AND OTHER GROUNDS 63. Sections 35, 36, 37, 38, 43 and 91 of the Ontario Municipal Board Act, R.S.O. 1990, c.28, as amended. 64. Rules 3-6, 97 and of the Board s Rules of Practice and Procedure. 19

23 65. Such further and other grounds as the Region may advise and the Board permits. THE FOLLOWING DOCUMENTARY EVIDENCE is relied upon by the Region: 66. Affidavit of Steven Dixon, sworn April 21, 2016, contained in Exhibit M-2, the Responding Motion Record of the City filed in response to the Requestor s motion returnable on April 28, 2016; 67. The Appellants Responding Motion Record, marked as Exhibit M-4, filed in response to the Requestor s motion returnable on April 28, 2016, including the Affidavit sworn by Quinto Annibale on April 22, 2016; 68. Request for Relief and Responding Submissions filed by the parties with the Board; 69. Correspondence and other filings in the Board s file in Case No. PL111184; and 70. Such further and other materials as counsel may advise and the Board permits. ALL OF WHICH IS RESPECTFULLY SUBMITTED BORDEN LADNER GERVAIS LLP Scotia Plaza, 40 King Street West Toronto, ON M5H 3Y4 Pitman Patterson Tel: Fax: ppatterson@blg.com The Regional Municipality of York Yonge Street, 4 th Floor Newmarket, ON L3Y 6Z1 Frank Santaguida Tel: ext Fax: (905) Frank.Santaguida@york.ca Counsel for the Regional Municipality of York 20

24 OMB Case No.: PL ONTARIO MUNICIPAL BOARD SECTION 43 REVIEW/REHEARING REQUEST RESPONDING SUBMISSIONS REGIONAL MUNICIPALITY OF YORK BORDEN LADNER GERVAIS LLP Scotia Plaza, 40 King Street West Toronto, ON M5H 3Y4 The Regional Municipality of York Yonge Street, 4 th Floor Newmarket, ON L3Y 6Z1 Frank Santaguida Frank.Santaguida@york.ca Tel: ext Fax: (905) Pitman Patterson Tel: Fax: ppatterson@blg.com TOR01: : v1 Counsel for the Regional Municipality of York