A recent Court of Appeal judgment that cast doubt on the role of planners in interpreting official plans shouldn’t have the effect some in the municipal law bar fear it might, says the lawyer for the winning side.
“I don’t think that’s the case,” says Goodmans LLP lawyer Mark Noskiewicz, who considers such fears to be “dramatic” statements.
Noskiewicz represented the municipality in Niagara River Coalition v. Niagara-on-the-Lake (Town), a case that concerned a citizens’ group’s battle against the Niagara Gorge Jet Boating Ltd. operation that runs an “exciting, wet, and exhilarating” boat tour along the Niagara River.
In a strongly worded judgment last year, Superior Court Justice Joseph Quinn shut down the boat tours in part over his finding that the business’ activities didn’t conform with the town’s official plan prioritizing public access to the waterfront and designating the dock Jet Boat used to be part of a conservation area.
The town quickly appealed, after which the court allowed the tours to resume pending its judgment. In a ruling in March authored by Chief Justice Warren Winkler, the appeal court reversed Quinn’s judgment and found the residents’ “latter day attack on the legality of the Jet Boat operation unsupportable.”
Jet Boat has been running from the dock, which used to function as a federal customs entry point, since 1992 under a series of licensing bylaws passed by the town.
In ruling in favour of the citizens’ group, Quinn noted the town’s official plan, enacted in 1994, designated the land a conservation area in which a secondary use could only occur alongside a main use, such as forestry, wildlife management, environmental protection, and public and private parks.
“It will be noted that no commercial activities are listed under ‘main uses,’” Quinn wrote last May.
“Furthermore, permitted uses do not include anything resembling a private commercial operation such as the one conducted at the dock by Jet Boat (an amusement ride on the Niagara River for paying customers). . . . [Niagara-on-the-Lake’s] official plan did not intend ‘private and public parks’ to include active parks such as concession stands, sports fields, and amusement rides.”
Quinn was particularly critical of the fact that the dock remained locked except to paying customers of Jet Boat, a fact he said went against the notion of a public park.
In reaching that conclusion, he relied on the evidence of the former town planner, John Perry, who drafted the official plan and, according to the appeal court, gave his opinion on what he had intended at the time.
On that issue, Winkler agreed with the town’s submission that Perry’s evidence was inadmissible. “Further, the proper interpretation of an official plan is not a factual matter to be decided based on opinion evidence from planners but rather a question of law,” Winkler wrote.
Taking that approach, he ruled, involves interpretations “on the basis of the documents that comprise such plans.
In this instance, the application judge relied on opinion evidence that was inadmissible to determine the scope and meaning of the language used in the plan. As a result of this error, I am not prepared to accept his finding that Jet Boat’s use of the dock could not shelter under the plan’s ‘conservation’ designation and would set it aside.”
The decision angered people like the Niagara River Coalition’s Gracia Janes, who says the appeal court judges’ “lack of expertise seems to show pretty clearly” in a ruling she believes flies in the face of Canadian planning practice. “It’s absolutely shocking. The history of planning across Canada is that planners interpret official plans.”
Noskiewicz acknowledges the controversy, noting some observers have wondered whether the ruling will lead to excluding planners’ evidence from proceedings like Ontario Municipal Board hearings.
But he believes the Jet Boat matter really turned on the specific facts, particularly the issue of Perry’s evidence on what he had originally intended in writing Niagara-on-the-Lake’s plan. “You can’t have the author read words into the interpretation of the plan,” he says, adding he feels the OMB will still listen to planners.
Instead, Noskiewicz points out the appeal court’s ruling centred largely on whether the Jet Boat operation constituted an existing non-complying use under the official plan.
Noting the plan called for “a greater degree of leeway in land use for existing areas where time and custom have achieved acceptable levels of compatibility,” Winkler said the Jet Boat operation passed the test.
“Accordingly, the non-complying uses provision expressly recognizes
that while there are certain uses and zoning classifications that may not comply with the policies of the plan, those uses may continue,” he wrote.
Quinn, of course, had ruled otherwise in a decision that emphasized the town’s policies on gradually eliminating non-complying uses over time.
But while Quinn had leaned heavily on the plan’s notion of public parks, Noskiewicz notes that during its time under federal use, a fence had always surrounded it, meaning there was no evidence of continued unfettered access to the dock in the past.
For her part, Janes says the citizens’ group isn’t giving up the fight against Jet Boat. While it ran out of time and money to appeal the matter to the Supreme Court of Canada, she says a recent recommendation by a consultant hired by the town may offer some hope.
The consultant suggested a shared use for the dock area, something she believes offers a chance for things to change in the town’s secondary plan, particularly if there’s new blood on the municipal council following elections this year.
“We know we’re right,” she says, rejecting claims that the citizens’ group is made up of wealthy people living near the dock who merely want to rid of the disturbance.
Moreover, the issue for her is one of access to public spaces. “Access to the waterfront is really key to the public - and not the paying public.”