HomeMy WebLinkAboutBy-law 7404/15 (OMB Order no.PL150145) The Corporation of the City of Pickering
By-law No. 7 404/15
Being a by-law to amend Restricted Area (Zoning)
By-law 2511, as amended, to implement the Official Plan of
the City of Pickering, Region of Durham in Part of Lots 15 & 16,
Concession 1, City of Pickering (A 3/14)
Whereas the Council of The Corporation of the City of Pickering received an application
to rezone the subject lands being Part of Lots 15 & 16 Concession 1, in the City of
Pickering to permit the development of a Major Tourist Destination and to rezone certain
lands Urban Reserve as an interim zone until further information is provided;
And whereas it is appropriate to amend By-law 2511, as amended, to permit such uses;
And whereas it is appropriate to permit the development of a Major Tourist Destination
in phases with the use of holding provisions to ensure development agreements are
executed and appropriate transportation net work improvements are im plemented to
accommodate the increasing scale of the development over time;
Now therefore the Council of The Corporation of the City of Pickering hereby enacts as
follows:
1.Schedules I and II
Schedule I and Schedule II attached hereto with notations and references shown
thereon are hereby declared to be part of this By-law.
2.Area Restricted
The provisions of this By-law shall apply to those lands being Part of Lots 15 & 16,
Concession 1 in the City of Pickering, designated "MTD", "MTD (H-1) (H-2) (H-3)",
"MTD (H-2) (H-3)", "MTD (H-3)" and "UR" on Schedule I attached hereto.
3.General Provisions
No building, structure, land or part thereof shall hereafter be used, occupied,
erected, moved or structurally altered except in conformity with the provisions of
this By-law.
4.Definitions
In this By-law,
(1)e "Amphitheatre" shall mean an open-air venue used for entertainment ande
performances having tiers of seats arranged around a central area.e
·By-law No. 7404/15
11.Effective Date
Page 16
This By-law shall come Into force in accordance with the provisions of the
Planning Act.
Note: Written Decision of the Ontario Municipal Board issued by H. Jackson on July 7, 2017.
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PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O.
1990, c. P.13, as amended
Appellant: Town of Ajax
Subject: By-law No. 7404/15 (A 3/14)
Municipality: City of Pickering
OMB Case No.: PL150145
OMB File No.: PL150145
OMB Case Name: Ajax (Town) v. Pickering (City)
PROCEEDING COMMENCED UNDER section 37 of the Ontario Municipal Board Act,
R.S.O. 1990, c. O. 28, as amended, and Rule 34 of the Board’s Rules of Practice and
Procedure
Request by: Picov Holdings Inc.
Request for: Request for Directions
APPEARANCES:
Parties to the s. 34(19) Appeal Counsel
Town of Ajax R. A. Biggart
Pickering Developments (Squires) Inc.,
Pickering Developments (Bayly) Inc.,
and Pickering Developments (401) Inc.
(collectively “Pickering Developments”)
P. Foran, D. Neligan
Ontario Municipal Board
Commission des affaires municipales
de l’Ontario
ISSUE DATE: July 07, 2017 CASE NO(S).: PL150145
Heard: January 12, 13, and July 5, 2016 in Toronto,
Ontario
January 14, 19 to 22, February 8 to 12, May
16 to 18, June 1, 2, 2016 in Pickering,
Ontario
OMB Written Decision pertaining to By-law No. 7404/15
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City of Pickering Q. Annibale and M. Joblin
Region of Durham K. Ryan and S. Lee
Parties to the Motion under s. 37 Counsel
Patricia Foran and Aird & Berlis C. Barnett, L. Bissett, and K. Gormas,
(student-at-law)
Picov Holdings Inc. D. White, A. G. D’Andrea, and W. Brock
City of Pickering Q. Annibale and M. Joblin
Town of Ajax A. Biggart
DECISION DELIVERED BY H. JACKSON AND ORDER OF THE BOARD
INTRODUCTION
[1]Pickering Developments is a group of companies comprised of Pickering
Developments (Squires) Inc., Pickering Developments (Bayly) Inc., and Pickering
Developments (401) Inc. Collectively, this group owns about 90 hectares of vacant land
designated for employment uses directly south of Highway 401 and the Canadian
National (“CN”)/Government of Ontario (“GO”) rail corridor, north of Bayly Street, and
west of Church Street in the City of Pickering (the “City”) directly adjacent to the Town of
Ajax (the “Town”).
[2]Pickering Developments want to build a major tourist destination on their land for
local and regional visitors. The proposed development would include a casino, hotels, a
convention centre, a performing arts centre, an outdoor amphitheatre, cinemas, a
restaurant plaza, a waterpark, a community recreation centre, a fitness centre and
offices.
[3]Pickering Developments provided a Conceptual Master Plan to illustrate how the
tourist destination could be assembled when they applied for a zoning by-law
amendment to permit these uses. They emphasize that this does not represent a site
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plan nor does it show the locations or scale of proposed uses, rather, it is intended that
the Conceptual Master Plan will evolve further through detailed site design.
The By-law
[4] Zoning By-law No. 7404/15 was passed by City Council on January 19, 2015 to
permit the requested uses. Since then, there have been modifications made for the
purposes of clarification and correction. A strike-out version showing the modifications
was provided in evidence as Exhibit 13, and a clean version was provided in Exhibit 14
(the “By-law”) which is appended to this decision as Attachment 1.
[5] The By-law zones part of the lands as Major Tourist Destination (“MTD”) and
downzones a large area to an Urban Reserve (“UR”) zone. The MTD is a new zone
category that adds a range of tourist destination uses. The extent of the MTD and UR
zones is shown in Schedule 1 of the By-law in Attachment 1.
[6] The By-law incorporates three separate holding symbols (“H”) which are referred
to as H-1, H-2, and H-3. These are based on projected traffic generation rates and
require major infrastructure improvements to be implemented before the holding
symbols are lifted.
[7] No development can occur on the MTD lands until the first H-1 symbol is lifted or
removed. The removal requires a Master Development Agreement registered on title
and a Transportation Impact Study (“TIS”) that projects a traffic generation rate at or
below 955 external primary weekday p.m. peak hour two-way vehicle traffic trips. The
TIS is to be undertaken to the satisfaction of the City, the Region of Durham (the
“Region”) and the Province. The Master Development Agreement is to include:
a. A Phasing Plan
b. A Master Grading and Drainage Plan
c. Tree Preservation, Compensation and Enhancement Plans
d. Urban Design Guidelines
e. Site Design Performance Standards
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f.Master Landscape Plans
g.A Construction Management Plan
[8]In order to lift the H-2, an updated TIS is required that projects a traffic
generation rate at or below 1935 external primary weekday p.m. peak hour two-way
vehicle traffic trips; and, appropriate arrangements and/or agreements for the
construction of a north to south connection between Notion Road and Squires Beach
Road must be in place, including all financial and Environmental Assessment Act
(“EAA”) requirements.
[9]In order to lift the H-3, arrangements and/or agreements for the construction of a
new partial interchange on Highway 401 at Church Street must be in place, including all
financial and EAA requirements.
[10]This hearing deals with only the first phase of development on the MTD lands. A
separate rezoning application will be required before any development can occur on the
UR lands.
The Appeal
[11]On February 11, 2015, pursuant to s. 34(19) of the Planning Act (the “Act”), the
Town appealed the passing of the By-law. The Town is concerned about the impact on
transportation and traffic, the appropriateness of using H symbols for the phasing of the
development, and the adequacy of the studies that were undertaken, amongst other
issues.
[12]The backdrop to this hearing is the competition for a single casino that is to be
located in either the City of Pickering or the Town of Ajax. Both the City and the Town
have taken measures to provide land use permissions in their respective municipalities
to allow for a casino. However, the Board has no jurisdiction with respect to the
specifics of a casino approval, as those approvals lie elsewhere, such as with the
Ontario Lottery and Gaming Corporation (“OLG”).
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[13] The matter for the Board to decide in this hearing is whether the By-law passed
by the City to allow for major tourist destination employment uses on the subject lands
is consistent with and conforms to the requisite planning documents, and whether it
represents good planning.
[14] Section 2.1 of the Act states that when an approval authority or the Municipal
Board makes a decision under the Act that relates to a planning matter, it shall have
regard to any decision that is made under this Act by a municipal council or by an
approval authority and relates to the same planning matter; as well as any supporting
information and material the municipal council or approval authority considered in
making the decision. Therefore, pursuant to s. 2.1 of the Act, the Board is required to
have regard to the decision of City Council in its approval of the By-law.
[15] The Town has argued that s. 2.1 also directs that the Board must have regard to
the decision of Town Council to oppose the By-law and appeal its passing to the Board.
Mr. Biggart has offered no jurisprudence to support his interpretation of this section of
the Act.
[16] The City disagrees with this interpretation and stated that the ‘decision’ referred
to in s. 2.1 is “a decision made under the Act by a municipal council with jurisdiction
over the planning instruments being considered by the Board under the Act.” Patricia
Foran looks to s. 34(23.1) and s. 34(23.3) of the Act to support the City’s interpretation.
[17] The Board does not agree with the Town’s position as it is not supported by a
plain reading of s. 2.1. The Town has no jurisdiction over the planning instrument that is
being considered by the Board – the instrument is the subject By-law which is in the City
– it is not in the Town.
[18] The obligation on the Board is to ‘have regard to’ the decision of City Council and
the information and material before Council in its approval of the By-law. The
‘obligation’ refers to the decision of the City to enact the By-law and not the decision of
the Town to oppose and appeal this By-law. In effect, the Board has also considered
the position of the Town and Town Council’s decision to oppose this By-law, as
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pursuant to s. 34(19) of the Act, Council of the Town decided to launch the appeal that
is the subject of this hearing. Within the meaning of the Act, the Board has met its
obligation and has had regard to the decision of City Council in coming to this decision.
[19] During this hearing the Town has put forward evidence to support the position
that a reason for this appeal by the Town is in order to protect the public interest. The
City takes offence to this position, and counters that it is the City that has primary
responsibility for the public interest in its approval of the By-law. The City states they
have considered the public interest by taking into account comments from the Region
on relevant matters in its jurisdiction including impacts on the Regional road network;
other commenting agencies including the Toronto and Region Conservation Authority
(“TRCA”); and, the public.
[20] The City submits that it is not appropriate for the Town to adopt the role of
“protector of the public interest” on planning instruments in an area outside of its
jurisdiction. The City points to previous decisions of the Board for the proposition that it
is the local council who is the defender of the public interest, and to demonstrate that
the City has neglected the public interest is an extremely high threshold.
[21] In the case of Zellers Inc. v. Leamington (Town), 1999 CarswellOnt 4270, the
Board stated: “It is the Board’s view that the first defender of the public interest of local
matters should be the municipal council and upon appeal, this Board.” This case was
also referenced in a more recent Board decision, Corsica Developments Inc. v.
Markham (Township) (2014), 2014 CarswellOnt 17866, where the Board stated that
“...the council and the Board are the parties primarily responsible for the public interest
and a private party such as Zellers Inc., or in this case the RHN, must clearly
demonstrate that the council’s actions are clearly not in the public interest and that is an
extremely high threshold.”
[22] Based on the above previous decisions of the Board, this panel of the Board
agrees that at first instance it is the City that is primarily responsible for the protection of
the public interest on planning instruments within its jurisdiction. The Town has not
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demonstrated that the City has neglected the public interest by enacting the subject By-
law. Now upon appeal, it is the Board who is charged with responsibility to determine
whether the By-law is in the public interest.
[23]The Board has considered the evidence, submissions and relevant cases in
coming to the decision in this matter. The Board allows the appeal, in part, in order to
amend By-law No. 7404/15 as provided in Exhibit 14 and appended herein as
Attachment 1. In all other respects, the appeal is dismissed.
[24]The reasons follow.
PRELIMINARY MATTERS
Hearing Witnesses
[25]Planning evidence was provided by Ross Pym, Principal Planner, Strategic
Initiatives, for the City. Paul Lowes, Principal Planner with SGL Planning & Design Inc.,
provided land-use planning evidence on behalf of Pickering Developments. Gary
Muller, Manager of Planning and Chief Planner for the Town, provided land-use
planning evidence for the Town.
[26]Gary Pappin, Senior Associate, Transportation Engineer with Stantec Consulting
Ltd., provided professional transportation engineering evidence on behalf of the City.
He also indicated that he had earlier provided advice to the Region for the technical
review of the By-law. Tim Arnott, Principal Planner with BA Consulting Group Ltd.,
specializing in transportation engineering and planning, provided opinion evidence on
behalf of Pickering Developments.
[27]Doug Robertson, Region of Durham Director of Transportation, was summoned
by the City to provide professional transportation planning and engineering evidence.
[28]Robert Koziol, Transportation Engineer with MMM Group Limited (“MMM”),
provided professional transportation engineering evidence on behalf of the Town. David
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Richardson, a Designated Transportation Engineer with MMM, also provided
professional transportation engineering evidence on behalf of the Town. He adopted
the evidence and witness statement of Michael Parker, a Transportation Planner at
MMM. Mr. Parker was unable to attend the hearing due to a change in the hearing
schedule. Mr. Parker reports to Mr. Richardson at MMM.
[29] Justin Picov testified on behalf of the participant Picov Holdings Inc. (“Picov”).
He provided a participant statement entered into evidence as Exhibit 28. He testified
that Picov’s operation of the quarter horse race track at Ajax Downs is highly integrated
with the OLG Slots at Ajax Downs. He said that if Ajax Downs is not successful in
obtaining the one casino in either Pickering or Ajax that will be permitted to operate by
OLG, Picov’s horse racing operation will be in financial jeopardy. The concern raised by
Mr. Picov is acknowledged by the parties as an issue of commercial competition. As
has been established by previous cases before the Board, issues of commercial
competition are not proper planning issues for consideration by the Board, and therefore
this issue is not considered any further in this decision.
[30] During the course of the hearing Pickering Developments entered into evidence
Exhibits 33 and 34 regarding the proposed Ajax Downs Expansion. The Town objected
to this evidence and the weight to be placed upon it and requested it not be admitted.
The Board permitted the evidence and indicated reasons would be provided in the
decision regarding its admissibility. Upon deliberation for this decision, the Board gave
no weight to this evidence as it was of no assistance.
Motion to Remove Counsel
[31] Picov brought a motion to the Board returnable at the commencement of the
hearing. The motion requests Party status, and an order to remove Patricia Foran and
the firm of Aird & Berlis LLP (“Aird & Berlis”) as the lawyers for Pickering Developments
from these proceedings alleging they breached their fiduciary duty to their corporate
client Picov.
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[32]For the motion, Picov was represented by David White, assisted by Anthony G.
D’Andrea, and William Brock of the Quebec Bar.
[33]Aird & Berlis and Patricia Foran opposed the motion. They were represented by
Chris Barnett, assisted by Laura Bissett, and K. Gormas, student-at-law.
[34]The City of Pickering, represented by Mark Joblin and Quinto Annibale, opposed
the request for party status, and took no position regarding the request for removal.
[35]The Town of Ajax, represented by Andrew Biggart, took no position and filed no
material.
[36]At the outset of the motion, Mr. White requested limited party status for the
purpose of arguing the removal motion and abandoned his request for full party status.
Given the seriousness of the allegation and the concern for public interest in relation to
potential bias, the Board granted the requested limited party status.
Background
[37]Mr. White explained that Aird & Berlis are the corporate solicitors for the Picov
family and Picov Holdings Inc., and have been for many years. Picov operate a quarter
horse racetrack and OLG gaming operation at Ajax Downs in the Town. As part of the
OLG modernization program, only one casino will be permitted in the Town, City or
Whitby. Picov wish to host the casino and if they are not successful the viability of Ajax
Downs is in jeopardy. The Town has recently approved an official plan and zoning by-
law amendment for Picov’s lands that would allow a casino. This approval was
appealed by Pickering Developments, represented by Ira Kagan of the firm Kagan
Shastri LLP. On December 11, 2015 there was a telephone conversation between Mr.
Biggart, Mr. Kagan and Ms. Foran. This conversation was held the day following the
appeal of the Town by-law by Pickering Developments and was held to discuss
potential settlement. The Board was also provided with a confidential email (Exhibit 1)
detailing confidential information related to Picov’s aspirations for a casino.
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Confidential Information
[38] Justice Sopinka, writing for the majority in the Supreme Court of Canada decision
MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, (“MacDonald Estate”), at paragraph
22, identifies the two basic approaches for determining whether a disqualifying conflict
exists, as follows:
The law in Canada and other jurisdictions has adopted one of two basic
approaches in determining whether a disqualifying conflict of interest
exists: (1) the probability of real mischief; or (2) the possibility of real
mischief. The term “mischief” refers to the misuse of confidential
information by a lawyer against a former client. The first approach
requires proof that the lawyer was actually possessed of confidential
information and that there is a probability of its disclosure to the detriment
of the client. The second is based on the precept that justice not only
must be done but must manifestly be seen to be done. If, therefore, it
reasonably appears that disclosure might occur, this test for determining
the presence of a disqualifying conflict of interest is satisfied.
[39] Justice Sopinka goes on to discuss what the appropriate test in Canada should
be. At paragraphs 47 and 48, he states:
What then should be the correct approach? Is the “probability of
mischief” standard sufficiently high to satisfy the public requirement that
there be an appearance of justice? In my opinion it is not. ..... In dealing
with the question of the use of confidential information we are dealing
with a matter that is usually not susceptible of proof. As pointed out by
Fletcher Moulton L.J. in Rakusen, “that is a thing which you cannot prove”
(p. 841). I would add “or disprove”. If it were otherwise, then no doubt
the public would be satisfied upon proof that no prejudice would be
occasioned. Since, however, it is not susceptible of proof, the test must
be such that the public, represented by the reasonably-informed person,
would be satisfied that no use of confidential information would occur.
That, in my opinion, is the overriding policy that applies and must inform
the court in answering the question: Is there a disqualifying conflict of
interest? In this regard, it must be stressed that this conclusion is
predicated on the fact that the client does not consent to, but is objecting
to, the retainer which gives rise to the alleged conflict.
Typically, these cases require two questions to be answered: (1) Did the
lawyer receive confidential information attributable to a solicitor and client
relationship relevant to the matter at hand? (2) is there a risk that it will be
used to the prejudice of the client?
[40] In answering the first question, Justice Sopinka states at paragraph 49:
In my opinion, once it is shown by the client that there existed a previous
relationship which is sufficiently related to the retainer from which it is
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sought to remove the solicitor, the court should infer that confidential
information was imparted unless the solicitor satisfies the court that no
information was imparted that could be relevant.
[41] With respect to the second question, Justice Sopinka states at paragraph 50:
The second question is whether the confidential information will be
misused. A lawyer who has relevant confidential information cannot act
against his client or former client. In such a case the disqualification is
automatic. ...
[42] Mr. White argues that Ms. Foran meets the conditions for determining that a
disqualifying conflict exists. He contends that she was aware of confidential information
related to Picov’s intentions for two reasons:
1. There is a presumption that “what one knows in a law firm everyone
knows”; therefore because Aird & Berlis are the corporate solicitors for
Picov, she would be privy to confidential knowledge related to Picov’s
aspirations for a casino; and
2. On the basis of a confidential email (Exhibit 1) that details confidential
information related to these aspirations.
[43] It is Mr. White’s position that the confidential email is evidence that Aird & Berlis
had confidential information, and there was no ethical wall in place to prevent leaking of
that information to Ms. Foran.
[44] He states that Aird & Berlis have not rebutted the possibility of the misuse of
confidential information.
[45] Further, based on the test as put forward in paragraph 50 of the MacDonald
Estate decision (provided above), Mr. White argues that Ms. Foran should be
automatically disqualified because of the telephone conversation that she entered into
with Mr. Kagan and Mr. Biggart where she inserted herself into the matter.
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[46] Mr. Barnett argues that Ms. Foran had no confidential information related to
Picov’s plans, based on paragraph 21 in her affidavit to that effect, where she states:
I have no confidential knowledge relating to what is referred to as OLG’s
modernization process or Picov’s role, if any, in that process. I have no
confidential information regarding Picov’s approval for an expanded
gaming facility at 50 Alexander’s Crossing, or details of discussions with
casino companies or any aspect of their plans for an OLG license. It is
therefore not possible for me to have misused such information, or
shared it with anyone outside of A&B, because I have no such
knowledge.
[47] Mr. White contends that the language used by Ms. Foran of “or any aspect of
their plans” in the above statement alludes to confidential information regarding Picov’s
plans; whereas, Mr. Barnett submits that Ms. Foran is merely stating that Picov’s goal is
to expand their facility to permit a casino, information which is in the public realm.
[48] Further, Mr. Barnett submits that in order to establish the presence of a
disqualifying conflict of interest, it is necessary to show that the relationship is
“sufficiently related” from which it is sought to remove the solicitor, as provided in
paragraph 49 of the MacDonald Estate decision (provided above).
[49] In this case, Mr. Barnett points out that Aird & Berlis’ retainer with Pickering
Developments is for zoning by-law approval for their land in the City. Aird & Berlis have
never represented Picov with respect to land use planning approvals, and there is no
exclusivity agreement between Picov and Aird & Berlis. The confidential information
that was provided in evidence (Exhibit 1) has nothing to do with either of the two zoning
matters. Mr. Barnett submits that therefore the matters are clearly not sufficiently
related.
[50] The Board does not accept Mr. White’s proposition that Ms. Foran’s affidavit
statement in combination with the information in Exhibit 1 establishes that she was
aware of confidential information related to the specific aspirations of Picov in relation to
the proposed new casino. The fact that Picov wished to host a new casino at Ajax
Downs was well documented and is acknowledged in Picov’s Motion Record.
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[51] The Board is satisfied that Ms. Foran’s statements in her affidavit simply reflect
what was known publicly regarding these aspirations.
[52] The Board disagrees with Mr. White’s assertion that Ms. Foran should
‘automatically be disqualified’ because of the telephone conversation. The Board has
found that Ms. Foran did not have confidential information, and if she did, the
information must be ‘relevant’. The matter before the Board is a land use planning
matter and therefore ‘relevant’ information would relate to merits of a land use planning
application. The contents of Exhibit 1 do not relate to the zoning by-laws in either the
City or the Town, but relate to the specifics of Picov’s aspirations.
[53] As provided in the MacDonald Estate decision (at paragraph 49 excerpted
above), there must be a ‘previous sufficient relationship’ to remove Patricia Foran from
the retainer with Pickering Developments. The Board finds that there is no previous
sufficient relationship between Picov and Aird & Berlis with respect to land-use planning
matters. Aird & Berlis’ retainer with Pickering Developments is for zoning by-law
approval for their land in the City. Aird & Berlis have never acted for Picov in land use
zoning matters therefore there should not be an expectation that Aird & Berlis would not
act for another party in another municipality for a land use planning matter. The Board
cannot see how it is reasonable that Picov can object to Aird & Berlis taking on a
retainer for another client in a different municipality for land use matters given that Picov
does not use Aird & Berlis for such matters.
[54] Mr. White has failed to establish that there is a disqualifying conflict of interest
that requires Ms. Foran be removed from the retainer with Pickering Developments.
Duty of Loyalty
[55] Lawyers owe a duty of loyalty to their clients. This breaks down into three
aspects: avoiding conflicts of interest, commitment to a client’s cause, and candour; as
provided in the Supreme Court of Canada decision R. v. Neil 2002 SCC 70 (“Neil”) at
paragraph 19.
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Duty to Avoid Conflicts of Interest
[56] Mr. White pointed to the “Bright Line” rule, first enunciated in Neil; subsequently in
the Supreme Court of Canada decision 3464920 Canada Inc. v. Strother, 2007 SCC 24
(“Strother”); and most recently, the Supreme Court of Canada decision Wallace v.
Canadian Pacific Railway, 2013 SCC 39 (“Wallace”); to argue that Patricia Foran and
the firm of Aird & Berlis have breached their duty of loyalty to Picov. The Bright Line
rule holds that a law firm cannot act for a client whose interests are adverse to those of
another existing client, regardless of whether the interests are related or not. The rule
applies where there are immediate legal interests that are directly adverse.
[57] Mr. White notes that Aird & Berlis’ two clients, Picov and Pickering
Developments, are both seeking land use approvals, but only one will ultimately get a
casino. He contends that one could say that these are two separate unrelated matters
– that the two clients are competing commercially but are not directly adverse in a legal
matter. However, he contends that once Pickering Developments appealed the zoning
by-law in the Town, which is a legal matter, they have now crossed the line and are
adversaries. This was compounded by the phone call that ‘intermeshed’ the lawyers
into a single battle. He contends that as of the phone call, the Bright Line rule was
crossed.
[58] Mr. White also alleges that because the two parties are competing aggressively
for the same prize, the commercial interests at play can be considered. He referenced
the Strother decision at paragraph 55 that discusses alleged “adversity” between
concurrent clients related to business matters.
... This is not to say that commercial interests can never be relevant. The
American Restatement offers the example of two business competitors
who seek to retain a single law firm in respect of competing applications
for a single broadcast licence, i.e. a unique opportunity. The
Restatement suggests that acting for both without disclosure and consent
would be improper because the subject matter of both retainers is the
same licence (Restatement (Third) of Law Governing Lawyers, vol. 2, at
*121 (2000)). ...
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[59] In response, Mr. Barnett submits that duty of loyalty must not be unduly
expanded. He referred to the Neil decision at paragraph 15 regarding the need for an
appropriate balance for a duty of loyalty to a client and the mobility of lawyers:
.... Yet it is important to link the duty of loyalty to the policies it is intended
to further. An unnecessary expansion of the duty may be as inimical to
the proper functioning of the legal system as would its attenuation. The
issue always is to determine what rules are sensible and necessary and
how best to achieve an appropriate balance among the competing
interests.
[60] Mr. Barnett referenced the Strother decision at paragraphs 54 and 55 for the
clarification that where a law firm provides advice to one client that benefits that client’s
business interests to the detriment of a competitor of the client who is also a client of the
law firm, the law firm has not crossed the Bright Line, as it is not acting directly adverse
to the competitor’s immediate legal interests. The real risk of impairment is a question
of fact.
[61] Mr. Barnett asserts that Ms. Foran and Aird & Berlis have not breached the
Bright Line rule. He states that Ms. Foran and Aird & Berlis are not acting for Pickering
Developments in the matter that is adverse to Picov, which is the appeal of the zoning
by-law in the Town. Ms. Foran stated that she has not and does not represent
Pickering Developments on matters in the Town with respect to the settlement
discussions that occurred at the phone call of December 11, 2015.
[62] Further, Mr. Barnett states that the retainer does not extend to other provincial
approvals and if the by-law is approved by the Board that does not confer OLG
permissions that Pickering Developments and Picov both seek. Therefore, there is no
unique commercial opportunity being denied to Picov.
[63] Mr. Barnett references the Wallace decision at paragraph 37 for the proposition
that the Bright Line rule does not apply in circumstances where it is unreasonable for a
client to expect that a law firm will not act against it in unrelated matters. Mr. Pym, in
his affidavit, has stated that the matters in the Town and the City are completely
unrelated. Mr. Barnett concludes that it is entirely unreasonable for Picov to object to
16 PL150145
Aird & Berlis acting for Pickering Developments and that the Bright Line rule does not
apply in this instance.
[64] Mr. Barnett provided the following excerpt from the Wallace decision at
paragraph 38 for the proposition that the onus falls on Picov to establish the existence
of a conflict on the balance of probabilities, which Picov has not done. As alleged by
Mr. Barnett, Picov has only provided conjecture that its interests are being adversely
affected by Aird & Berlis’ representation of Pickering Developments in this appeal.
.... the question then becomes whether the concurrent representation of
clients creates a substantial risk that the lawyer’s representation of the
client would be materially and adversely affected. ... In addition, the onus
falls upon the client to establish, on a balance of probabilities, the
existence of a conflict – there is only a deemed conflict of interest if the
Bright Line rule applies.
[65] As in most situations and as noted in the Strother decision, the facts are relevant.
On the basis of the facts and submissions in this motion, the Board does not find that
‘legal’ interests were engaged when Pickering Developments appealed the by-law in
Ajax. Neither does the Board accept that the phone call ‘intermeshed’ the lawyers into
a single battle.
[66] In this situation, there are two separate land use instruments before the Board
under two separate file numbers. As has been described, to ensure the two matters
remain separate, lawyers of separate firms were retained. Ms. Foran of Aird & Berlis
represents Pickering Developments defending a zoning by-law in the City, and Mr.
Kagan of Kagan Shastri represented Pickering Developments appealing a zoning by-
law in the Town. The two matters will be heard separately, and will have different facts
and merits for each. They are not ‘intermeshed’. The two lawyers cannot consolidate
these two matters even if they wished to. The current matter before the Board which
Picov is asserting Ms. Foran should be removed from is the defense of an appeal of a
by-law in the City.
[67] There is no reason other than Mr. White's conjecture to conclude that Ms. Foran
shared confidential information in the subject telephone call. Mr. White has not
17 PL150145
established that Aird & Berlis are acting for Pickering Developments on a matter that is
directly adverse to Picov. The Board does not agree that the Bright Line rule is
engaged in this situation.
[68] Mr. White would also like the Board to determine that because Picov and
Pickering Developments are competing for the same prize, the ‘adversity’ between the
two clients can relate to their commercial interests, not simply their legal interests. It
does not. In the matter before the Board, there is no contest for a single prize. The
sole jurisdiction that the Board has is to determine whether the zoning by-law in
Pickering should be approved. This panel of the Board has no jurisdiction on the
question of whether the zoning by-law in the Town should be approved, and the Board
does not have jurisdiction to grant permissions beyond the zoning by-law for the casino.
Duty of Commitment
[69] The Duty of Commitment to the client’s cause, is laid out in the Wallace decision
at paragraph 43:
The duty of commitment is closely related to the duty to avoid conflicting
interests. In fact, the lawyer must avoid conflicting interests precisely so
that he can remain committed to the client. Together, these duties
ensure “that a divided loyalty does not cause the lawyer to ‘soft peddle’
his or her [representation] of a client out of concern for another client’:
Neil, at para. 19.
[70] Mr. White states that by engaging Mr. Barnett to respond to this motion for party
status, Aird & Berlis are no longer an advocate; they have now become an adversary to
Picov. He submits that it is clear that Aird & Berlis are not committed to their client’s
cause; otherwise they would not take an adversarial position against their client.
[71] Mr. Barnett states that Aird & Berlis is simply responding to the motion that was
made by Picov against the firm and Mr. White is attempting to create a conflict where
none exists.
[72] Mr. Barnett points out that the duty of commitment also prevents a lawyer from
dismissing a client to avoid conflicts of interest, as stated at paragraph 44 in the Wallace
18 PL150145
decision. As asserted by Mr. Barnett, in this situation there is no evidence that Aird &
Berlis have ‘dumped’ Picov, and there is no evidence that the representation of either
Picov or Pickering Developments by Aird & Berlis has been impaired in any way.
[73] The Board finds that Mr. White seeks to elevate the duty of commitment beyond
what is intended. The Board is satisfied that the duty does not prevent a law firm from
acting for competitors, and there is no evidence that the corporate representation of
Picov by Aird & Berlis has been affected by Ms. Foran’s retainer with Pickering
Developments.
Duty of Candour
[74] The Duty of Candour, as laid out in the Wallace decision at paragraphs 45 to 47
is elucidated as follows:
A lawyer or law firm owes a duty of candour to the client. This requires
the law firm to disclose any factors relevant to the lawyer’s ability to
provide effective representation. As Binnie J. stated in Strother, at para
55: “The thing the lawyer must not do is keep the client in the dark about
matters he or she knows to be relevant to the retainer.”
It follows that as a general rule a lawyer should advise an existing client
before accepting a retainer that will require him to act against the client,
even if he considers the situation to fall outside the scope of the Bright
Line rule. At the very least, the existing client may feel that the personal
relationship with the lawyer has been damaged and may wish to take its
business elsewhere.
I add this. The lawyer’s duty of candour towards the existing client must
be reconciled with the lawyer’s obligation of confidentiality towards his
new client. In order to provide full disclosure to the existing client, the
lawyer must first obtain the consent of the new client to disclose the
existence, nature and scope of the new retainer. If the new client refuses
to grant this consent, the lawyer will be unable to fulfill his duty of candour
and, consequently, must decline to act for the new client.
[75] According to Mr. White, the test of candour requires that Picov be advised of Aird
& Berlis’ taking on Pickering Developments as a client, which Ms. Foran did not do.
However, implied consent was acknowledged as all the parties attended the prehearing
conference on July 3, 2015.
19 PL150145
[76] Mr. Barnett contends that there is no nexus by which it was necessary to disclose
Aird & Berlis’ retainer with Pickering Developments. On July 3, 2015, all the players
knew who was involved, and at that time the opportunity existed to take steps. Mr.
White contends that Picov did not take steps at that point, but only launched the motion
for removal after the appeal of the zoning by-law in the Town occurred and the subject
phone call took place.
[77] The Board finds that, in the circumstances of this matter, Ms. Foran did not take
on a retainer that would require her to act against Picov. The retainer she took on was
to advocate for a zoning by-law in the City for a commercial competitor of Picov’s, in an
area of practice that was different than the work that her law firm did for Picov. She had
no obligation to inform Picov that she was taking on a retainer for land use planning
advocacy in the adjacent municipality even if it was for a competitor of Picov’s. She has
not acted or advocated against Picov.
Conclusion
[78] Mr. Barnett cited the case of Levine v. Toronto (City), (2009) 62 O.M.B.R. 11,
where Associate Chair Lee, in a similar motion, stated:
This is not a criminal, estate, commercial or a family law property
equalization dispute, where vital information in one’s possession may be
prejudicial or beneficial if disclosed. The paradigm of a planning hearing,
particularly where it relates to the application for a minor variance, is
notably and generically different from those other litigations. Typically, it
involves the contest of planning opinion and the contrasting
interpretations of documents that are completely open and accessible in
the public domain. The animus of the actors is of no importance, unless
they are framed in proper planning framework and through a planning
lens.
[79] The commercial interests that are being asserted as the genesis of the alleged
conflict:
.... should not have any relevance or given any weight. In fact, none of
these features as leitmotifs in a planning hearing for the simple reason
that they are irrelevant and outside the scope of the tests that have been
laid down by statutes and years of jurisprudential precedents.
20 PL150145
[80] The comments made by Associate Chair Lee in the above decision are directly
on-point and apply equally in this circumstance: “a planning hearing ... involves the
contest of planning opinions and the contrasting interpretations of documents that are
completely open and accessible in the public domain. The animus of the actors is of no
importance, unless they are framed in proper planning framework and through a
planning lens.” The Board finds that the commercial competition between Pickering
Developments and Picov is not relevant to the particular planning hearing that is the
matter that is before the Board in this instance.
[81] The Board concludes, for the reasons provided above, that Aird & Berlis have not
breached their fiduciary duty to their corporate client Picov. Therefore, the motion to
remove Patricia Foran has no merit and is dismissed.
PLANNING MERITS
[82] The Durham Regional Official Plan designates the lands as Employment and the
City’s Official Plan designates the lands as Prestige Employment and Mixed
Employment. The current zoning has as-of-right permission for about two million
square feet of mixed employment/industrial uses.
[83] To the east is the Annandale Golf and Country Club; to the south is the Pickering
Pentecostal Church and a large industrial area that includes the Pickering Markets and
Trade Centre, Aspect Retail Logistics, and Annandale Fine Cars dealership; and to the
west is an industrial area consisting of a number of smaller industrial properties and
Green for Life Environmental Corporation properties at the north end. The north side of
Bayly Street in this location is comprised of a number of dwellings, most of which have
been converted to commercial/industrial use.
[84] The key concerns the Town raised in this appeal relate to the definitions in the
By-law, the consistency of the By-law with Provincial policy planning documents,
conformity with the Official Plan, and traffic and transportation infrastructure issues.
These are described in the following sections.
21 PL150145
1. Are the Definitions Used in the By-law Clear and Objective?
[85] Mr. Muller challenged the definitions in the By-law for entertainment complex,
landmark building, major tourist establishment, performance art centre and retail sales
ancillary as being too vague or subjective.
[86] Mr. Pym testified that the vast majority of definitions within the By-law are
existing definitions used in other City by-laws, and new definitions were the result of
reviewing the best practices of other jurisdictions in Ontario and beyond. The
‘Entertainment Complex’ definition is used to ensure that a casino to be permitted is
only as part of a hotel, convention centre, conference centre or entertainment complex.
‘Landmark Building’ provides a means for City staff through the site plan approval
process to require an enhanced level of design for any proposed buildings up to 35
storeys. It should be noted that there is currently no height restriction on the subject
lands. He stated that ‘Performance Arts Centre’ and ‘Major Tourist Establishment’ are
clear definitions and assist in regulating the permissions on the subject site. Retail
sales ancillary is discussed in a later section of this decision.
[87] The Board is satisfied with the evidence provided by Mr. Pym in his explanation
of the origin of the new definitions, and finds that the definitions for the new uses within
the By-law are appropriate for the circumstances. The Board does not find these
definitions to be ‘vague’. The Board sees no issue that should arise from these
definitions, or impact to the Town’s interests from these definitions.
2. Consistency with the Provincial Policy Statement
[88] Mr. Muller’s opinion is that the By-law is not consistent with the Provincial Policy
Statement 2014 (“PPS”). He takes issue with the lack of studies, particularly in relation
to the proposed location and compatibility of sensitive land uses and the reliance on
transportation infrastructure that is not yet in place.
[89] Mr. Muller referenced the following from the PPS:
22 PL150145
s. 1.1.1 Healthy, liveable and safe communities are sustained by:
…
c) avoiding development and land use patterns which may
cause environmental or public health and safety
concerns;
g) ensuring that necessary infrastructure, electricity
generation facilities and transmission and distribution
systems, and public service facilities are or will be
available to meet current and projected needs;
….
[90] Mr. Muller stated that it is premature to determine whether the By-law is
consistent with s 1.1.1c) because the required studies to determine whether proposed
sensitive uses are compatible with the surroundings have not yet been done; and, the
By-law is not consistent with s. 1.1.1g) because the By-law relies on a highway
interchange that is not planned by the Ministry of Transportation of Ontario (“MTO”) and
does not conform with regional and local official plans.
[91] He also referenced the following section:
s. 1.1.3.2 Land use patterns within settlement areas shall be based on:
a) densities and a mix of land uses which:
…
2. are appropriate for, and efficiently use, the infrastructure
and public service facilities which are planned or
available, and avoid the need for their unjustified and/or
uneconomical expansion;
…..
[92] It was Mr. Muller’s opinion that the By-law is not consistent with this section
because the full scope of the development cannot be accommodated by the
infrastructure that is planned or available.
[93] By contrast, Mr. Lowes’ position was that the PPS promotes economic
development and encourages a broad range of employment uses, and this By-law is
consistent with that goal. He referenced the following sections of the PPS:
23 PL150145
s. 1.3.1 Planning authorities shall promote economic development and
competitiveness by:
a) Providing for an appropriate mix and range of employment and
institutional uses to meet long-term needs;
b) Providing opportunities for a diversified economic base, including
maintaining a range and choice of suitable sites for employment uses
which support a wide range of economic activities and ancillary uses, and
take into account the needs of existing and future businesses;
c) Encouraging compact, mixed-uses to support liveable and resilient
communities; and
d) Ensuring the necessary infrastructure is provided to support current and
projected needs.
s. 1.3.2.1 Planning authorities shall plan for, protect and preserve employment
areas for current and future uses and ensure that the necessary infrastructure is
provided to support current and projected needs.
[94] In Mr. Lowes’ opinion, the By-law contributes to a broader mix of employment
uses, and provides for a more diversified economic base which will support a broad
range of economic activities and does so in a more compact, mixed-use employment
form than is currently contemplated. It also ensures that the necessary transportation
infrastructure is in place to meet the needs of the development as it progresses from the
initial phases to full build out.
[95] The Board notes that the PPS is a broad policy document. The overall themes
relate to promoting the development of complete communities in an efficient and
compact form. Planning authorities are required to make planning decisions ‘consistent’
with the PPS.
[96] The Board prefers the evidence of Mr. Lowes with respect to consistency with the
PPS. The Board finds that, as testified by Mr. Lowes, the By-law will increase and
broaden the range of employment uses permitted on these lands, consistent with the
policies of the PPS. As well, the Board finds that the land use considerations and
transportation capacity are integrated as the site develops, which is reflective of the
broad policy goals of the PPS.
[97] The concerns that Mr. Muller has raised are not sustained; he has raised
concerns regarding compatibility, however, as described in other sections of this
decision, compatibility issues will be dealt with at the site plan process or through the
24 PL150145
lifting of the H symbol. The Board finds this is an appropriate approach for this by-law.
The Board finds that the issues described by Mr. Muller regarding ‘necessary
infrastructure’ are precisely why this By-law is structured in the way that it is, with a
series of holding provisions that are to be lifted as the studies review the existing
infrastructure and new infrastructure becomes available. The Board finds that this
approach of controlling and staging development through the use of the holding
symbols is consistent with the intent of the PPS policies of s. 1.1.1 and s. 1.1.3.2 that
are referenced by Mr. Muller.
[98] The Board finds the By-law to be consistent with and furthers the goals of the
PPS particularly in regards to the promotion of economic development on these
employment lands.
[99] Mr. Lowes testified that the By-law conforms to the Growth Plan for the Greater
Golden Horseshoe (the “Growth Plan”). The Town did not contest this opinion.
3. Conformity with the Official Plan
[100] The Town raised numerous concerns regarding the conformity of the By-law with
the Official Plan, as described in the sections below.
Complete Application and Adequacy of Studies
[101] Mr. Muller’s evidence was that the By-law does not conform to s.15.3(b) of the
City’s Official Plan because the ‘prescribed information’ and material required by the
Planning Act was not provided; and, the By-law does not conform to s.15.3(f) because
all required studies set out in s.15.5 for a zoning by-law amendment were not provided.
Mr. Biggart alleges that the City rushed the application through the review process and
ignored regulatory and policy requirements which lead to a fatally flawed By-law that
“risks causing harm to the general public and to Ajax.”
[102] The following sets out the legislative requirements relied upon by the Town:
25 PL150145
1. Official Plan Requirements for Materials and Studies
Complete application policies are set out in s.15 of the City Official Plan
(Exhibit 1, Tab 4, pp. 185-199). The relevant excerpts follow:
15.3 City Council shall not accept an application for an official plan
amendment, zoning By-Iaw amendment, draft plan of
subdivision, plan of condominium, or site plan approval until the
following has been submitted to the City:
(b) any information or materials or prescribed by statute and
regulation;
(f) all required studies set out in Section 15.5 for an official
plan amendment, zoning By-law amendment, draft plan
of subdivision and draft plan of condominium application.
15.5 A City Council shall require the following materials and studies
prepared by qualified experts, as scoped or expanded as a result
of the pre-submission consultation required by section 15.2, to be
submitted at the time of application for an official plan
amendment, zoning By-law amendment, draft plan of
subdivision, and draft plan of condominium approval: (list of
studies) .....
2. Section 34(10.1) of the Act states as follows:
Prescribed information - A person or public body that applies for an
amendment to a Bylaw passed under this section or a predecessor of this
section shall provide the prescribed information and material to the
council.
Schedule 1 of Regulation 545/06 sets out the required prescribed
information.
Sections 20 and 21 of Schedule 1 require the Applicants to provide the
following:
20. Whether any buildings or structures are proposed to be built on
the subject land.
21. If the answer to section 20 is yes, the following information for
each building or structure:
a) the type of building or structure; and
b) in metric units, the setback from the front lot line, rear lot
line and side lot lines, the height of the building or
structure and its dimensions or floor area.
[103] In regards to the Official Plan requirements for materials and studies, Mr. Pym
testified that in accordance with s.15.5A of the Official Plan, a pre-consultation meeting
was held on December 12, 2013 with Pickering Developments and representatives of
26 PL150145
the Region and the TRCA, to establish which studies would be required prior to the
application being deemed complete.
[104] Mr. Pym’s Witness Statement (Exhibit 4, Tab 1, p.6) lists numerous studies that
were undertaken. Mr. Pym testified that no public agencies had concerns with the
studies, and the Region stated that the By-law conforms to the Durham Regional Official
Plan. As the Provincially Delegated Reviewer, the Region advised that they had
reviewed the application and had no objection to passing the By-law. The Region noted
that revised reports will be required and that all Environmental Site Assessment (“ESA”)
reports submitted in support of development applications in the Region must be Record
of Site Condition (“RSC”) compliant. Mr. Pym also stated that he had numerous
discussions with the MTO and they were satisfied.
[105] The application was deemed complete by the City on February 12, 2014
pursuant to a letter from the Director, City Development (Exhibit 2, Tab 15), who is
Council’s delegated authority for complete applications under the Act.
[106] The Town objects to the City’s determination that the application was deemed
complete before all the studies were finalized. The Town also holds that insufficient and
inadequate studies were undertaken.
[107] For example, Mr. Muller testified that the ESA report did not address potential
contamination associated with the rail line or the presence of an abandoned gas well.
He was also concerned that there was no Vibration Study, nor a Railway Corridor
Safety Study. He commented upon compatibility concerns referencing the Ministry of
Environment and Climate Change (“MOECC”) D1 and D6 Guidelines and the presence
of legal non-conforming heavy industries on the north side of Highway 401, heavy
industries on the south side of Highway 401 to the west of the subject lands, and
derailments along the rail corridor.
[108] Both Mr. Lowes and Mr. Pym testified that the Vibration Study and Railway
Corridor Safety Study were not required as this zoning application was for employment
uses on Prestige Employment lands. They stated that during the site plan approval
27 PL150145
process the location of any sensitive land uses and compatibility concerns between
uses are to be identified and addressed and the detailed studies will be done. The list
of detailed studies to be done is similar to the list of studies that are required for a
zoning by-law amendment (Exhibit 1, Tab 4, pp. 189-190).
[109] In Mr. Pym’s opinion, the request for and adequacy of studies has no impact on
the Town. He said the City had adequate information to properly assess the application
and the level of information provided was similar to many other rezoning applications he
has been involved with.
[110] It was Mr. Lowes’ opinion that the complete application policies exist so that a
municipality has a method of compelling an applicant to provide all information and
studies to properly consider an application before the appeal period begins for a non-
decision pursuant to s. 34(11) of the Act. Mr. Lowes testified that the policies are clear
that the municipality can scope the required studies. If Council is satisfied with the
information an applicant has provided to it, Council has broad discretion to deem an
application complete.
[111] In regards to the ‘prescribed information’, Mr. Muller states Pickering
Developments did not indicate whether any buildings or structures are proposed to be
built on the subject lands, the type of each building or structure and the setback from
the front lot line, rear lot line and side lot lines, the height of the building or structure and
its dimensions of floor area, all as required by O.Reg. 545/06, Schedule 1, s. 20 and s.
21. Mr. Biggart submits that to approve the rezoning of this site in the absence of this
information is to 'read-out' these sections of Regulation and would be ‘an error of law’.
[112] The Board prefers the evidence of Messrs. Pym and Lowes in regards to the
issue of conformity with the Official Plan and the complete application policies. The
Board has greater confidence in the opinion provided by Mr. Pym in regards to
conformity with the Official Plan, in particular due to his more comprehensive
interpretation of the Official Plan policies as they relate to this application for tourist
related uses on employment lands. Mr. Lowes was the author of the City’s complete
28 PL150145
application policies and as such the Board has greater confidence in his interpretation of
these policies and their implementation.
[113] By contrast, Mr. Muller’s evidence that the By-law does not conform to the
Official Plan because insufficient studies were provided with the application does not
stand up to scrutiny. Rather, the Board accepts Mr. Lowes’ opinion that the complete
application policies exist so that a municipality has a method of compelling an applicant
to provide all information and studies to properly consider an application before the
appeal period begins for a non-decision and that Council has broad discretion to deem
an application complete. In this case, the evidence before the Board is that the City
was satisfied with the application and the supporting studies. The Board notes that the
list of studies undertaken is extensive and none of the agencies that were circulated had
concerns.
[114] Even if the application were deficient under the regulation, the Divisional Court in
McGregor v. Rival Developments Inc. (2003), 2003 CarswellOnt 2991, 40 M.P.L.R. (3d)
107, 174 O.A.C. 297 (Div. Ct.)(“McGregor”) has found that the Act provides that the
completeness of an application is a matter within the jurisdiction of Council. In the
McGregor case, a third party had challenged the validity of an application and
subsequent appeal brought by an applicant of a zoning by-law amendment application
on the basis that the application should not have been deemed complete as all of the
prescribed information had not been provided. The Divisional Court rejected this
submission and noted as follows:
With regard to the completeness of the application, in respect of the
"prescribed information" mentioned in subsection (10.1), subsection
(10.3) provides that the completeness of the application is a matter within
the jurisdiction of council. Council is given discretion. It may refuse to
accept the application or having accepted the application it may refuse to
further consider it. These subsections make no reference to the Board
having authority to decide that the application is defective and as a result,
[that] council cannot act on it.
[115] The Board finds that the above reasoning is applicable in this case as well. As
stated by the Divisional Court, it is entirely within the City’s discretion to determine if
they are satisfied with the content of the application when the application is deemed
29 PL150145
complete; and, Council is not obliged to request any or all of the prescribed information
set out in the regulation, nor is it obliged to request any or all of the information that is
set out in its Official Plan. The provisions of the Act provide that only an applicant may
make an application to the Board with respect to whether its application is complete or
not. This is not a decision that is appealable by a third party – it is between the City and
the applicant, in this case, Pickering Developments. The Board finds that the Town is
attempting to use the ‘complete application’ provisions for a purpose which is not
intended by the Act.
[116] It is clear to the Board that the discretion lies with the City. The evidence is that
there will be a significant number of additional studies required before development can
occur. This is reflected in the By-law which does not permit any development on the
MTD lands until a Master Development Agreement, supported by detailed site plan
studies including RSC compliant environmental reports, is executed. The Board finds
that this approach will address the Town’s apparent concerns that insufficient
supporting information is available in order to develop the lands appropriately and to
address land use compatibility issues.
[117] The Board agrees with the observation made by Mr. Pym that the question of
whether the application was complete and the adequacy of studies for this By-law in the
City have no impact on the Town. The Board is satisfied that the content of the
application does not raise any issue of conformity respect to s.15 of the City’s Official
Plan.
[118] In regards to the Town’s contention that there is an ‘error of law’ because O.
Reg. 545/06 was not adhered to, the City submits that s. 20 of the O. Reg. requires an
applicant to indicate whether any buildings or structures are proposed to be built.
Section 21 is only engaged if the answer to s. 20 is yes. The Board finds that based on
the plain reading of the regulation, the information prescribed in s. 21 was not required,
as there are no buildings proposed within the subject By-law.
30 PL150145
[119] The Board agrees with the City’s submission that the subject By-law is similar to
a pre-zoning of land such as is found in a municipal comprehensive zoning by-law.
Similar to a pre-zoning by-law, the Board finds that the information regarding building
locations was not required, and therefore there is no issue with the prescribed
information not being provided to Council under O. Reg. 545/06. There is no error in
law or otherwise.
Performance Standards
[120] Mr. Muller states that the performance standards that deal with tall buildings,
minimum separation distances between buildings on site, between industrial facilities
and sensitive uses, and other standards, are not set out in the By-law and, in his
opinion, this is contradictory to s. 3.8(b) of the City Official Plan that states City Council:
… may zone lands designated Employment Areas for one or more
purposes as set out in Table 8, and in so doing will apply appropriate
performance standards, restrictions and provisions....
[121] Both Mr. Pym and Mr. Lowes counter that these issues are all internal to the site
and do not affect external uses. They state there is no need for traditional standards
such as lot area or lot frontage as the property is already established. The standards
that are provided for in the By-law include such things as a zero front yard setback,
which will allow for urban standards to be considered and this provides for flexibility in
the implementation of the required Urban Design Guidelines and Site Design
Performance Standards prior to development. The siting and location of all building and
structures will be addressed in the Master Development Agreement.
[122] The Board agrees with Mr. Lowes’ opinion that the Urban Design Guidelines and
Site Design Performance Standards will provide for more comprehensive standards
than currently exist. The Board finds this to be a more appropriate approach for a by-
law such as this which is described as a pre-zoning by-law for a large site. The Board
agrees with Pickering Developments’ observation that Mr. Muller could offer no
reasonable or compelling explanation as to why the setback from the road or separation
between buildings on site would impact the Town’s interest.
31 PL150145
[123] The Board finds that the performance standards within the By-law are
appropriate for this stage of the approval process and as such, conform with s. 3.8 of
the City Official Plan, particularly given that additional provisions will be determined as
part of the subsequent Master Development Agreement.
Major Tourist Destination Zone does not conform with Brock lndustrial Neighbourhood
Policies
[124] The subject lands are located in the Brock Industrial Neighbourhood (Exhibit 1,
Tab 4, pp. 155-156).
[125] The Town contends that there is no goal or objective to establish a Major Tourist
Destination anywhere within this Neighbourhood, and therefore the zoning does not
conform with the Official Plan policies for this Neighbourhood.
[126] Mr. Pym's evidence is that Prestige Employment lands permit a range of uses
including light manufacturing, offices, limited retail sales as a minor component of an
industrial operation, hotels, and personal services. Community, cultural and
recreational uses are also permitted. Mixed Employment lands permit the same uses as
Prestige Employment while also permitting limited retail of goods and services serving
the area.
[127] The Board relies on Mr. Pym's evidence that the By-law will broaden the mix of
employment uses and will provide additional employment opportunities with a diversity
of jobs, while encouraging tourism and improving the economic base of the City, all in
conformity with the City Official Plan. The Board does not accept the contention of the
Town that an official plan amendment is required. The Town did not advance any
sustained evidence in support of this position, nor did the Town provide sustained
evidence that the proposed uses provided for in the By-law do not align with uses
permitted in Prestige and Mixed Employment lands.
[128] Map 14 of the City Official Plan (Exhibit 1, Tab 4, p. 156) identifies a Detailed
Review Area along Bayly Street. There was a dispute between Mr. Pym and Mr. Muller
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in regards to the amount of developable land within the Detailed Review Area. In any
event, Mr. Muller’s opinion is that the City’s Official Plan requires that a detailed review
be undertaken, and because this has not been done it is contrary to the City’s Official
Plan.
[129] The provisions for undertaking a detailed review are listed at s.11.2 in the City
Official Plan (Exhibit 1, Tab 4, pp. 154). Section 11.2(a) provides that City Council may
adopt development guidelines for any Detailed Review Area, and s. 11.2(d) requires
City Council to endeavor to complete detailed reviews prior to approving major
development within a Detailed Review Area.
[130] The City submits that although there is a small portion of the MTD lands that fall
within a Detailed Review Area, there is no development application before Council at
this point and, accordingly, a Detailed Review is not yet required.
[131] The Board is not persuaded that there is an official plan conformity issue
because a Detailed Review has not been done. It is clear that the language in the
Official Plan s. 11.2(a) of ‘may adopt’ and at s. 11.2(d) of ‘endeavor to’ are permissive
and therefore, there is no requirement that the Detailed Review must be done. In fact,
the evidence at the hearing was that there is a large portion of the area that is already
developed that was not subject to a Detailed Review.
[132] Regardless of the above, prior to any development on the lands the By-law
requires a Master Development Agreement. The Board agrees with Mr. Lowes’ opinion
that the requirement for comprehensive planning of the entire site by way of the Master
Development Agreement is a preferred approach, and this will address the intent of the
policies in s.11.2.
[133] The Board is satisfied that this comprehensive approach meets the intent of the
policies in s.11.2 of the Official Plan and is preferred over a more rigid approach which
would focus on the small portion of the site that lies within the Detailed Review Area.
The Board finds that these requirements provide the City with an appropriate tool to
ensure performance standards are implemented and the entire MTD lands are built in
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accordance with those standards. The Board does not find that the lack of a Detailed
Review leads to an issue of conformity with the City Official Plan.
Prestige Employment Lands – Ancillary Retail Use
[134] Table 8 of the City Official Plan prescribes permissible uses within employment
areas by subcategory (Exhibit 1, Tab 4, p. 132) and states that, amongst other
permissions, retail sales as a minor component of an industrial operation are permitted.
[135] Mr. Muller’s opinion is that the subject By-law permits retail sales but does not
restrict them as a minor component of an industrial operation, and as such, the By-law
does not conform with the Official Plan policies.
[136] Both Mr. Pym and Mr. Lowes testified that this is not the intent of the City’s
Official Plan. Both provided their opinion that the reference to “retail sales as a minor
component of an industrial operation” is a typical provision in many official plans meant
to address the changing nature of retail, which saw retailing arise in warehouse forms.
The restriction of retail to a minor component of an industrial operation was to
differentiate industrial operations with ancillary sales from retail warehouses where the
sales are the primary function. Therefore, the City and Pickering Developments submit
that the inclusion of ancillary retail as a permitted use in the subject By-law is not
contrary to the intention of the City Official Plan.
[137] Mr. Muller prepared a table (Exhibit 39) summarizing a number of by-laws in the
City as evidence of the narrow fashion in which this direction in Table 8 has been
implemented and for the proposition that retail uses have been consistently tied to
industrial uses. However, in reply Mr. Lowes noted that many of the by-laws
summarized by Mr. Muller permit retail which is not ancillary to an industrial use. This
discrepancy indicates to the Board that Mr. Muller’s evidence on this point is faulty.
[138] The Board notes that the treatment of ancillary retail in the subject By-law is
similar to the approach taken in the Seaton Zoning By-law, By-law No. 7364/14,
approved by a different panel of the Board in 2014, and provided in Exhibits 40 and 41.
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In the Seaton By-law, ancillary retail sales are permitted in a Prestige Employment
Area, consistent with the subject By-law. This indicates to the Board that the approach
in the current By-law is not contrary to the Official Plan policies in regards to permissible
uses in Employment Areas.
[139] The Board accepts the evidence of Mr. Pym and Mr. Lowes in that the stated
provision is typically provided in official plans to limit retail in warehouse-type forms in
employment lands. The intent of the provision is to limit retail so that it is ancillary to the
primary use. The Board finds that Mr. Muller is incorrectly attempting to restrict ancillary
retail to ‘industrial’ use, which is not the intent of the Official Plan.
[140] The Board agrees with the submissions of Pickering Developments that the
subject By-law places strict controls on the size and scale of secondary and support
uses, including retail uses. For example, clause 5(5)(b) of the By-law provides that the
total gross floor area (“GFA”) of all existing or proposed Permitted Secondary uses and
Permitted Support Uses shall not exceed 15 percent of the total GFA of all existing or
proposed Permitted Principal Uses. As well, clause 5(5)(e) provides that ancillary retail
uses cannot exceed 500 square metres per individual use. The Board finds that these
clauses appropriately limit retail to an ancillary use, which is the intent of the City Official
Plan policies.
[141] The Board finds that the inclusion of ancillary retail as a permitted use in the
subject By-law is not contrary to the intent of the Official Plan. The Board is satisfied
that the restrictions placed regarding ancillary retail are appropriate and will adequately
control retail. The restrictions in the By-law are detailed and comprehensive and the
Town has not succeeded in persuading the Board that these restrictions will not meet
the intent of the Official Plan, which is to control ancillary retail in Prestige Employment
lands.
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Is it Appropriate to Require Further Approvals through the Use of a Holding “H” Symbol?
[142] Policy 15.16 of the City Official Plan states the Council may pass zoning by-laws
incorporating holding provisions as provided for in the Act to specify the use to which
lands, buildings, or structures may be put at some time in the future, providing,
(a) The holding symbol (H) is used only in the following instances:
i. When certain details of development have not yet been determined, or
where certain conditions of development have not yet been met such
as, but not limited to, development or servicing agreements with the
City or Regional Municipality of Durham;
ii. When land assembly is required to permit orderly development;
iii. When the level of community services and/or infrastructure is not yet
adequate to support the proposed use;
iv. Where environmental conditions or constraints temporarily preclude
development or redevelopment; and
v. Where required studies related to traffic, soils, protection of site
features, environmental constraints, design features, or market impact
analysis have not yet been approved by the City;
[143] Mr. Muller’s opinion was that the holding provisions of the By-law are not
appropriate and the use of the holding provisions exceeds the authority under s. 15.16
of the City Official Plan. He states that the work and studies required for lifting of the H-
1 provision, such as the Urban Design Guidelines (locational criteria for building
placement, built form transition to adjacent areas, parking placement and structured
parking and guidance for building massing) and Site Design Performance Standards
(building setbacks, densities, building coverage, the location of parking areas, distance
separation between facilities and sensitive uses) should have been completed prior to
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the passage of the By-law, not as a holding provision requirement. He states that the
suitability of the lands to accommodate proposed sensitive land uses has not been
studied. It is possible that local conditions or constraints may permanently preclude
certain uses and forms of development.
[144] He also states that it is premature to include the requirement of the connection of
Notion Road and Squires Beach Road for the lifting of the H-2 in the absence of its
feasibility being determined through an Environmental Assessment, particularly as this
connection may never occur. Similarly, he states the proposed interchange at Church
Street required for the lifting of the H-3 does not conform to the applicable official plans,
and this interchange is not supported by the Town and is entirely within the Town.
[145] Mr. Lowes and Mr. Pym both testified that the By-law met the requirements of s.
15.16 of the Official Plan. They both are of the opinion that the use of holding symbols
and associated conditions are appropriate and control the scale and design of the
development, ensuring that the development is built in an orderly fashion and that
appropriate infrastructure will be in place to accommodate the development.
[146] Further, as testified by Mr. Pym, the appropriate authorities are required to be
satisfied prior to the lifting of the H-provision. The holding provisions are consistent with
the Official Plan in that development is not permitted until the various hold requirements
have been satisfied, including the need for agreements, Environmental Assessments,
Regional requirements, TRCA requirements, and Provincial requirements. The City
requirements through the required site plan approval will include, amongst other
matters, additional supporting studies.
[147] Mr. Lowes referred to Policy 14.5.2 of the Regional Official Plan that encourages
municipalities to pre-zone land using holding symbols (Tab 3 of Exhibit 1, at p. 78), as
follows:
In accordance with the provisions of the Planning Act and the appropriate
provisions of this Plan, the Council of an area municipality is encouraged
to prezone land using the holding symbol “H” or “h”, in conjunction with
any use category, and indicate the use to which lands, buildings or
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structures may be put at such time in the future as the holding symbol is
removed by amendment to the by-law.
[148] As provided by the evidence of Mr. Pym and Lowes, in this situation, the City has
chosen to pre-zone land to permit a major tourist destination with a large range of
primarily tourist-related uses. The exact configuration of these is to be provided at a
later stage and will depend, to a large extent, on the development of the surrounding
road infrastructure capacity to support the intensity of use. The By-law leaves the
details of the layout to the site plan stage, at which time the Master Development
Agreement with numerous studies supporting it, will be required.
[149] Mr. Muller disagrees fundamentally with the approach taken in the development
of this By-law. In his evidence he consistently articulates the same concern – that there
is only a ‘conceptual plan’ for the development, and even that plan is not particularly
relevant, as it also includes the UR lands, which cannot be developed until a
subsequent rezoning application is submitted. In his opinion, it is premature to approve
a zoning by-law without understanding the specific uses that are proposed, their
intensity, and how these will be deployed on the land. In his opinion, this is a
fundamental error, and this position underpins the bulk of his evidence. In his opinion, it
is not possible to assess impact, particularly to the citizens of Ajax, without this
information.
[150] The Board finds that Mr. Muller has provided in his evidence an interpretation of
the Act and the City Official Plan that is overly narrow in scope and is not reflective of
the intent of these policy documents. He rejects the flexibility that is available to a
municipality to provide for zoning in a manner that is somewhat novel in its approach, as
is the case in this By-law.
[151] The Act permits zoning with the use of holding provisions, and the Regional
Official Plan encourages the pre-zoning of land. The Board notes that it is evident that
there is a significant amount of road infrastructure improvements that are required to
accommodate the proposed development. Indeed, the Board finds this to be an
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appropriate circumstance for the use of holding provisions given that the road
infrastructure capacity is not yet in place to support the proposed development.
[152] The Board agrees with the City’s submissions that the By-law is only the first step
in terms of planning approvals, and that the holding symbols add restrictions to the site
that do not exist currently for the as-of-right development.
[153] Mr. Muller’s stated desire to have all the studies done in advance is a preference,
but in no way is it contrary to the Act or the City Official Plan to undertake the
development in the manner proposed herein, with the use of the three H symbols to
control development. The Town’s insistence that all the studies be provided in advance
of the development is not necessary in this situation that is more akin to pre-zoning.
The concerns raised by the Town about not knowing the proposed uses, location of
buildings, phasing and transportation improvement details, will be known and reviewed
prior to any development of the site.
[154] The Board finds that the By-law provides for orderly development by providing a
clear connection between the availability of the infrastructure and the progression of
development. The By-law sets out clear and precise requirements for the lifting of the
holding provisions. At each stage of development the By-law clearly sets out that if the
required infrastructure cannot be constructed then the subsequent phase of
development will not occur. This process will serve to limit undue impact on the Town
with respect to traffic impacts, as the By-law is designed such that the infrastructure will
keep pace with the development. As well, the evidence was that the proposed
development does not depend on each subsequent phase of development occurring.
That is to say, the proposed development is feasible whether or not the H-2 and H-3 are
ultimately lifted.
[155] The City contends that throughout the hearing, the Town suggested that by
requiring certain traffic improvements as a condition for lifting the holding symbols in the
subject By-law, this would put pressure to improperly construct such improvements.
The City submits that if a prerequisite to development cannot be fulfilled or met, such as
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the availability of sufficient or adequate servicing, that is a risk that is borne by the
applicant but is not a ground for denying an application.
[156] The City referred to Milton Meadows Properties Inc. v. Milton (Town), 2014
CarswellOnt 4831, where the Region had objected to the Board granting approval of a
developer’s draft plan of subdivision prior to adequate services having been secured.
At paragraph 31, the Board stated the “political apprehension argument was this: once a
developer’s draft plan of subdivision has been approved, this leads to an “expectation’”
that services would follow.” The Board rejected this line of argument noting, at
paragraph 32, that it “has nothing to do with the statutory criteria” and that it heard “no
evidence that municipal officials were so fragile, on that account, that such pressure
could represent a significant risk to the public interest.”
[157] The Board finds the same reasoning applies here. The Board finds it to be
entirely appropriate to impose holding provisions as there are numerous issues which
must be addressed before development can proceed. The Board finds this approach to
be consistent with the Act.
[158] Mr. Muller acknowledged that a municipal council has the freedom to design a
by-law in the manner that it sees fit, in order to meet the circumstances that it may wish
to address, which the Board notes is the situation here.
4. Traffic and Transportation Infrastructure
[159] The Town raised concerns in relation to the methodology for the traffic
generation analysis and the proposed infrastructure improvements that are required for
the lifting of the three holding symbols.
Urban Transportation Study and the Calculation of Traffic Impacts
[160] In order to identify the impacts to the road network resulting from the proposed
development, an Urban Transportation Study (“UTS”) was done based on a scenario of
uses and development intensity that was considered to be a realistic combination of
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predominately Primary Land Uses with a mix of Secondary and Supporting Land Uses
from the permitted land uses list in the By-law, as testified by Mr. Arnott.
[161] Mr. Arnott explained that the development intensity was based on a variety of
‘independent variables’; for example, the casino uses ‘gaming positions’, hotels use
‘rooms’, and office-commercial space uses GFA. Because there is no common floor-
area based metric, vehicular traffic generation for each permitted use was used as the
common metric.
[162] The vehicular traffic generation metric was evaluated at incremental levels of
development that roughly equated to 25 percent, 50 percent, 60 percent, and 75
percent of the traffic intensity of the full build-out scenario to determine the
improvements that would be required at specific levels of traffic generation. An 'as-of-
right' scenario for office space was also examined for comparison purposes.
[163] The UTS identified what levels of traffic, based on development intensity, would
require network or infrastructure improvements. These improvements are laid out in the
UTS and are tied to the lifting of the H symbols, as provided in the By-law. The
projected traffic intensity of 955 and 1935 two-way p.m. peak hour traffic trips are the
thresholds for lifting the H-1 and H-2, respectively.
[164] As explained by Mr. Arnott and Mr. Pappin, in order to lift the first H, a full TIS is
required that will look at the combination of land uses, the resulting
interaction/internalization, pass-by characteristics, and trip distribution factors. As
development incrementally proceeds on the subject lands, the transportation
assessment will take into account the phase or cumulative effects of prior phases. This
ensures that an evaluation of each phase of development has a built in set of ‘checks
and balances’ to address issues that may arise at each phase.
[165] The result of the approach outlined above is that the By-law controls
development on the basis of vehicle trips as opposed to GFA.
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[166] The Town’s view is that the City and Pickering Developments made a
fundamental error in using the UTS as the basis for the development limits because
traffic demand and the appropriate response to that demand will be unique for each
possible development scenario; whereas, the UTS was prepared for only one scenario.
[167] In Mr. Richardson’s opinion, the land uses assumed in the UTS are an arbitrary
mix of office, local, and regional land use types. He states that some of these uses
generate a high proportion of trips in one direction, and therefore the UTS does not
adequately consider traffic impacts at individual locations. He also expressed concern
that many of the identified improvements are not possible to implement, which may lead
to problems such as additional queuing on Church Street that will in turn lead to
increased levels of infiltration on local Town roads.
[168] Mr. Biggart submits:
The appropriate approach is to determine the amount of development
that is appropriate, while taking into account all appropriate planning
considerations such as municipal objectives and site restrictions and then
determine, as part of the review process, whether there will be traffic
problems arising from that particular intensity of development. The
solutions to traffic problems, if any, should be determined after the form
and intensity of development has been determined - not the other way
around.
[169] He goes on to claim that GFA is a more traditional and appropriate basis for
limiting development, and argues that to approve a By-law that has traffic thresholds as
the sole 'cap' upon development for a large site such as this, when the traffic
implications are unknown, is irresponsible and does not constitute good planning.
[170] The Board is not persuaded by Mr. Richardson’s evidence and the Town’s
submissions that it is necessary for the By-law to be tied to GFA, nor is the Board
persuaded that the use of the UTS study was faulty. The Board prefers Mr. Arnott’s
evidence on this issue. He provided a comprehensive and coherent description of the
transportation engineering analysis undertaken to support the development of the traffic
generation limits provided in the By-law. The Board has confidence in his evidence and
finds that in this instance, vehicle trips are a logical and effective metric for controlling
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development where traffic impacts are a concern and where there is no common metric.
In this situation, the evidence shows that GFA is not the appropriate metric to use
because the intensity of many of the permitted uses is not relatable to GFA. In this
situation, the Board finds that it is more appropriate to use independent variables such
as hotel rooms and gaming positions, as described by Mr. Arnott.
[171] The Board finds that the approach taken in the UTS of using a particular scenario
to test the road network and to identify what levels of traffic would require infrastructure
improvements was a reasonable approach, and indeed, this was supported by the
Region, who agreed that the scenarios reviewed in the UTS were appropriate and that
the impact on the existing transportation network was adequately studied.
[172] The Board agrees with Pickering Developments’ submission that the inclusion of
higher traffic-generating uses within the UTS measured in incremental intensities and
compared against the as-of-right development scenario indicated that the full impact of
development upon the existing transportation network was adequately studied.
[173] The Board finds that the Town’s concern that the scenario tested is ‘only one of
many possible scenarios’ and therefore there is insufficient analysis is not valid because
the actual proposed uses are to be defined and studied by way of a Master
Development Agreement and a TIS for the specific range of uses proposed. This will
identify specific improvements required for that range of uses. On the basis of the
Town’s expressed issues and the evidence presented, the Board concludes that the
actual ‘scenario’ of uses is less important than the resultant traffic that is generated from
that range of uses. The Board finds that the requirement for updated studies under the
Holding provisions, combined with the requirement for cumulative and updated TIS
analyses including agency review, is an appropriate process to ensure that all technical
transportation issues are considered, assessed, and acted upon to permit development
to proceed in conjunction with the appropriate transportation infrastructure and to limit
impact to residents as a result of increased traffic. Tying the intensity of the
development to traffic generation ensures that the infrastructure capacity is able to
accommodate the projected traffic.
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[174] The Town did not bring forward any evidence to substantiate that testing a
different range of uses would identify different transportation impacts and therefore
more substantial improvements that would not otherwise form part of the Regional
transportation network.
Infrastructure Improvements
[175] There are three infrastructure improvements identified in the UTS for the lifting of
the H-1 that the Town takes particular offence to, being: i) a right turn lane at Church
Street and Kingston Road; ii) widening of Church Street south of Highway 401; and iii)
the proposed widening of Westney Road and right turn lane onto Highway 401 under
the CN Rail Bridge.
[176] In Mr. Muller’s evidence, he expressed opposition to a northbound right turn lane
from Church Street North onto Kingston Road East, as it would be detrimental to the
character of the historic Pickering Village. The Town submits that:
the Board cannot approve the rezoning for this site when the Zoning By-
law has imbedded in its 'threshold controls' assumptions regarding traffic
flow on Church Street that have not only be shown to be unlikely, but
have been shown to be opposed by, and contrary to, the policies of Ajax
which has jurisdiction over the relevant portion of Church Street.
Mr. Biggart states that the Town has determined that maintaining the unique feel of
Pickering Village is more important than addressing future traffic demands for a right
hand turn at this location.
[177] The Board notes that Mr. Richardson stated that the north side of this
intersection already contains a three-lane configuration, and with the addition of a right
turn lane on Church Street northbound, the intersection would mirror both sides. Both
Mr. Koziol and Mr. Richardson agree that this turn lane would free up the congestion at
the intersection and would be a benefit. The Board finds that the suggestion that this
will ‘ruin’ the village feel of the historic Pickering Village is not supported given that this
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would mirror the condition on the opposite side of the intersection and would reduce
congestion.
[178] The Town also objects to the widening of Church Street south of Highway 401.
The Town owns a portion of this road allowance and Mr. Biggart states that there was
no evidence that the Town will agree to this widening. Mr. Biggart also contends that
there was no evidence to demonstrate that Pickering Developments or the City have
made any arrangements with CN who own the bridge that spans this portion of Church
Street and who must consent to the reconstruction of the pillars that support the rail
bridge over Church Street that would be required for the widening.
[179] Mr. Koziol testified that the proposed widening of Westney Road and right turn
lane onto Highway 401 under the CN Rail Bridge would be very expensive and difficult
given the presence of Metrolinx bridges and because the corridor is very busy.
However, he acknowledged under cross-examination that there has been no opposition
to the widening of Westney Road by the Region, MTO, or Metrolinx. He also agreed
that if it has a positive benefit upon completion then it is an improvement that ought to
be considered.
[180] Mr. Koziol has provided extensive evidence relating to the cost and the
engineering challenges of some the proposed infrastructure improvements. However,
cost and construction difficulty are not relevant to the Board’s determination in this
matter. The Board’s task is to evaluate the planning merits of the By-law. The Board is
not persuaded that the Town’s refusal to agree to infrastructure improvements and the
cost of the work is linked to the merits of the By-law. The Town states that they do not
support these improvements; however, the Board does not find support for such a
position, nor that such a position is sufficient reason to refuse the By-law.
[181] As was noted by Ms. Foran, the subject lands enjoy significant as-of-right
development permissions that would also likely require road infrastructure
improvements. Does the Town mean to interfere with as-of-right development in an
adjacent municipality?
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[182] In any event, the By-law does not require the above specific improvements to
occur for the H-1 to be lifted; rather the By-law requires that a TIS be undertaken to
identify the necessary improvements depending upon the specific range of land uses
proposed. The Board finds this approach to be appropriate and reasonable in the
circumstances. It is possible that the ultimate road infrastructure improvements that will
be provided are different than what was presented in the UTS.
[183] The Board sees no valid planning reason for the Town’s challenge of the By-law
on the basis that the construction cost is high, and their unwillingness to implement
future infrastructure improvements.
Notion Road and Squires Beach Road Connection
[184] The By-law requires the connection of Notion Road and Squires Beach Road for
lifting H-2.
[185] The Town questions the construction feasibility of this connection based on Mr.
Koziol’s evidence that it is likely to cost in the range of $40 million. Mr. Muller testified
that there is nothing in the City’s capital budget or in its Development Charges Study to
indicate that this connection has been contemplated. The Town’s position is: “Why
approve a Zoning By-law that permits development at a certain level subject to changes
in the road network, if not only is the timing of the change to the road network uncertain,
but the very possibility of the road network improvement occurring is uncertain?”
[186] The Board notes that the evidence presented at the hearing indicates that this
connection, either under or over Highway 401, is identified in the Regional Official Plan,
the City’s Official Plan, and the Town’s Official Plan. In addition, Policy 3.3.7(a) of the
Regional Official Plan (Tab 3 of Exhibit 1, at p. 40) provides that Regional Council “shall
request Federal and/or Provincial Government assistance to improve accessibility to
Employment Areas and increase employment opportunities by providing additional or
improved interchanges along freeways and freeway crossings.” As well, the City’s
Official Plan promotes a gradual shift in focus from a predominantly east-west
orientation to include increased north-south connections (Tab 4 of Exhibit 1, at p. 135).
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Policy 11.6(a)(i) (Tab 4 of Exhibit 1 at p. 155) states that “City Council shall facilitate
vehicular traffic movement through the neighbourhood through the extension of Squires
Beach Road over Highway 401 to connect with Notion Road”. It further provides that
City Council “shall request assistance from the Province in the construction of a bridge
underpass or overpass to link Notion Road with Squires Beach Road” (Policy
4.14(a)(iii), Tab 4 of Exhibit 1, at p. 142).
[187] The Town’s Official Plan at Policy 4.2.1(g) (Tab 5 of Exhibit 1, at p. 216) states
“to improve mobility, modal choice, safety and facilitate the movement of people and
goods along Freeways, the Town shall promote the construction of grade separated
crossings of Highway 401 at Audley Road and Notion Road.”
[188] Mr. Pym testified that this connection was a continued priority for the City. The
Town’s transportation witnesses, Mr. Koziol and Mr. Richardson, also endorsed this
connection as a benefit to all the municipalities.
[189] The Board can see no basis for the Town’s position. As provided by the
evidence, the Official Plans of the Region, the City and the Town all support this
improvement. As is the situation for the previous infrastructure improvements, the cost
and engineering difficulty of the work is not relevant to the Board’s determination.
Indeed, if the infrastructure is not built, either because it is too expensive, or there is no
allocation for it in any budget, then the development will not proceed as the H-2
provision will not be lifted.
[190] The Board finds that there is no valid planning basis for the Town to oppose the
connection between Notion Road and Squires Beach Road, particularly given that this
connection is promoted in all the local planning documents.
401 Interchange at Church Street
[191] The By-law requires a partial interchange at Highway 401 and Church Street for
lifting H-3.
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[192] In Mr. Muller’s opinion, this interchange does not appear in the Official Plans of
the Region, the City, or the Town; therefore, the By-law does not conform to these
respective Official Plans. Mr. Biggart states:
The imagined interchange is contrary to the Durham Regional Official
Plan and Ajax's Official Plan. Ajax Council has unanimously opposed this
imagined interchange. The site is entirely within the geographic boundary
of Ajax and, therefore, entirely beyond the jurisdiction of Pickering. The
Ministry had the option to include such an interchange as part of its
recent Environmental Assessment to study the widening of Highway 401
in this area but refused to do so.
Mr. Biggart goes on to say “There is not a single policy document that supports, or even
mentions, this imagined interchange. It was the uncontested evidence of Mr. Koziol that
this connection is likely to cost in the range of $14 million.”
[193] The Board agrees with the submissions of both Pickering Developments and the
City that this argument is faulty as it is based on the premise that provincial
infrastructure requires authorization through an Official Plan; whereas, Pickering
Developments and the City argue that no authorization by way of an Official Plan is
necessary. The Durham Regional Official Plan reflects this by pointing out that
provincial highways, including interchanges, are subject to the Province’s jurisdiction, as
represented by the MTO. Durham Regional Official Plan Policy 11.3.7 states clearly:
“these highways are under the jurisdiction of the Ministry of Transportation, which has
sole responsibility for such matters as standards, design criteria and widening
requirements.” (Tab 3 of Exhibit 1, at p. 63).
[194] This is reinforced by City Official Plan Policy 4.18 (Tab 4 of Exhibit 1, at p. 144)
that similarly states:
City Council recognizes that the Ministry of Transportation has jurisdiction
over the provincial highways through the City, and as such,
acknowledges that the Ministry has the responsibility for standards,
design criteria (including intersection/interchange spacing and locations)
and widening requirements respecting those highways.
[195] In support of the position that the interchange does not need to conform to an
Official Plan, the City points to s. 24 of the Act that states: “no public work shall be
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undertaken that does not conform with an Official Plan in effect”. However, “public
work” is defined as “any improvement of a structural nature or other undertaking that is
within the jurisdiction of the council of a municipality or a local board”. The interchange
is within the jurisdiction of MTO, and is not within the jurisdiction of the Town. The
Board agrees with the conclusion that the proposed interchange is not a “public work”
as defined in the Act and therefore does not need to conform to an Official Plan.
[196] The Board finds that the Regional Official Plan and the City Official Plan clearly
provide that jurisdiction for the proposed partial interchange lies with the MTO. The
governing process for determining the feasibility and desirability of undertaking such
work is the provincial EAA process. As testified by each of the transportation witnesses,
the required Environmental Assessment would address environmental, engineering,
and financial issues. This provincial process would involve the participation of the
appropriate stakeholders, including the Town and the public, and would explore
alternatives to the work, including a ‘do nothing’ option.
[197] The Board rejects the Town’s argument that the interchange must first be shown
on an Official Plan, based on the clear language of the above policies of both the
Regional Official Plan and City Official Plan, and the Act. The Board notes that the
MTO has acknowledged the potential for an interchange at this location in its recent
Environmental Assessment to widen Highway 401 (Tab 56 of Exhibit 3, p. 1340) but has
neither supported nor opposed this infrastructure.
[198] The Board agrees with the proposition that it is not the By-law that authorizes an
interchange; in fact, the By-law places a restriction on the level of development that is
permitted on the subject lands until such time that MTO authorizes and constructs a
new interchange. The Board’s approval of the By-law does not prejudge or impact the
process that is required for the provincial Environmental Assessment. If an interchange
is never approved, there is a limit on the intensity of development on the subject lands.
This limit placed on the development intensity does not raise any issue with Official Plan
conformity.
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[199] The Town also raised concerns about the potential costs of an interchange at
Church Street. Similarly to the findings for the other infrastructure items, the cost of the
infrastructure is not an issue relevant to the Board’s determination of the planning merits
of this matter.
Town Right of Appeal
[200] Mr. Muller raised a concern that the Town does not have a right of appeal on the
lifting of a holding symbol, especially the lifting of the H-3, given that the Church Street
interchange falls within its municipal boundary.
[201] The Board agrees with Pickering Developments’ submission that there is no
reason why the Town should be able to control the lifting of a Holding provision
permitting development on a site in another municipality should the Province decide to
build an interchange. The Town did not adequately support this position.
[202] As stated by Mr. Lowes, if the conditions for development were addressed
through conditions of Draft Plan of Subdivision as opposed to a Holding Symbol, the
Town would have no greater say in the registration of the subdivision plan than in the
lifting of a Hold. The Act does not provide appeals for third parties in lifting a holding
symbol in a City zoning by-law.
[203] The Board sees no reason why the City would not act responsibly and in the
public interest when clearing conditions and lifting holding symbols.
CONCLUSIONS
[204] In coming to this decision, the Board has given careful consideration to the
issues raised by the Town. However, the Board finds that the Town has not succeeded
in establishing sufficient planning reasons to refuse the By-law.
[205] The Board is satisfied that the use of the holding symbols as provided for in the
subject By-law is appropriate. The By-law establishes a comprehensive framework for
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limiting development as infrastructure is available to support that development. The
Town did not provide sufficient evidence to counter the use of traffic intensity as an
appropriate mechanism for controlling development. The City is free to choose the
method by which it controls development and structures its by-laws.
[206] The terms for lifting the holding symbols are detailed and will promote certainty
by identifying the preconditions to be met to move to the next phase of development.
This is a reasonable approach for the municipality to arrange its affairs that will
accommodate the prospective major tourist destination employment uses on these
lands.
[207] The Board finds that the By-law prudently limits development on the site to
ensure that development occurs in accordance with infrastructure capacity. To that end,
the By-law is not premature but is rather conservative and represents good planning in
the public interest.
[208] The Board is satisfied that the public authorities, in this case the City, the Region
and the Province, have discharged their duties appropriately in the approval of this By-
law. The Board is not persuaded that there is a risk that they are not capable of
protecting the public interest in the future when lifting the holding symbols or
undertaking the Environmental Assessments that are required for future infrastructure.
[209] On the basis of the evidence and submissions, the Board finds that the By-law is
consistent with the PPS, conforms to the Growth Plan, the Region’s Official Plan and
the City’s Official Plan, represents good planning and is in the public interest.
ORDER
[210] The Board, having concluded that Patricia Foran and Aird & Berlis have not
breached their fiduciary duty to their corporate client Picov, dismisses the motion by
Picov to remove Patricia Foran as counsel for Pickering Developments in this hearing.
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[211] The Board allows the appeal by the Town, in part, and amends By-law No.
7404/05 as provided in Exhibit 14 and appended herein as Attachment 1. In all other
respects, the appeal is dismissed.
“H. Jackson”
H. JACKSON
MEMBER
If there is an attachment referred to in this document,
please visit www.elto.gov.on.ca to view the attachment in PDF format.
Ontario Municipal Board
A constituent tribunal of Environment and Land Tribunals Ontario
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248