Ontario Civil


Appeal

LEAVE TO APPEAL
Even if moratoriums could be imposed, term of five years excessive

This was application for leave to appeal order of Ontario Municipal Board. Board dismissed applicant’s appeal against policies of city’s official plan amendment. Policy that was in issue imposed moratorium on creation of any new country lot subdivisions pending critical review of country lot subdivision policies for five-year period. Board found that moratorium was necessary because more time was required to achieve balanced approach to complex integrated planning issues that should be permitted to play out. Board found that language in s. 16 of Planning Act (Ont.), authorized policy. Leave to appeal granted. Proposed appeal involved matters of importance. Board’s decision potentially affected rural land across province and provided municipalities with enlarged powers to prohibit rural land development via official plans. Overarching issue was whether collateral measure of imposing moratorium on land development to provide breathing room to develop policies was properly within power of municipality to make in official plan pursuant to s. 16 of Act. There were at least three areas of concern regarding correctness of board’s interpretation of s. 16 of act, namely, language of act, similar powers to impose moratoriums on land development found in s. 38 of act and characterizing moratorium of five years duration as pause. Board’s decision did not appear to recognize distinction between policy and measure to attain objective. Section 16 of act did not appear to authorize measures to maintain or change status quo in order to develop future policies and objectives for later implementation. There was reason to doubt correctness of board’s decision in rejecting interpretation of s. 16 of act that reflected legislature’s intention in enacting specific provision that provided for moratoriums on development and constrained effect to two years. It could be concluded that even if moratoriums could be imposed to support objectives in official plan, term of five years would be considered excessive.

Thomas Cavanaugh Construction Ltd. v. Ottawa (City) (June 28, 2012, Ont. S.C.J. (Div. Ct.), Annis J., File No. 11-1789) Leave to appeal from 70 O.M.B.R. 435 was allowed. 219 A.C.W.S. (3d) 14 (11 pp.).

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