CITATION: Avery v.

Pointes Protection Association, 2016 ONSC 6463

DIVISIONAL COURT FILE NO.: 999-15-ML
DATE: 2016/11/28

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

)
)
JEFF AVERY, PATRICIA AVERY, and
)
1704604 ONTARIO LTD.
)
)
)
Applicants (Appellants in Appeal) )
)
)
- and )
)
POINTES PROTECTION ASSOCIATION,
)
THE CORPORATION OF THE CITY OF
)
SAULT STE. MARIE, and KLAAS
)
OSWALD
)
Respondents )
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)
)
)
B E T W E E N:

Orlando M. Rosa, J. Paul R. Cassan and

Tim J. Harmar, for the Applicants
(Appellants in Appeal)

Mark Wiffen, for the Respondents

HEARD: In writing

REASONS FOR DECISION ON APPLICATION FOR LEAVE TO APPEAL

ELLIES J.
INTRODUCTION
[1]

The applicants (the developers) seek leave under s. 96(1) of the Ontario Municipal
Board Act, R.S.O. 1990 c. O.28, to appeal the decision of the Ontario Municipal Board (the
Board) regarding a proposed residential development called Pointe Estates, in the Pointe
Louise area of Sault Ste. Marie, Ontario. The Board dismissed the developers appeal from a
decision of the Sault Ste. Marie City Council, in which the council denied the developers

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ONTARIO

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[2]

The developers allege that the Board committed a number of errors, ranging from such
fundamental errors as a denial of natural justice, to more specific errors, such as
misinterpreting the meaning of terms used in policy statements issued under the Planning
Act, R.S.O. 1990 c. P.13 (the Act).

[3]

In these reasons, I explain why none of the issues raised meets the onerous test for
granting leave, either because the issue is not a question of law, there is no reason to doubt
the correctness or reasonableness of the decision, or the issue is not one of sufficient
importance to warrant appellate review.
BACKGROUND FACTS

[4]

The property in question is comprised of approximately 102.19 hectares of land, a portion

of which is wetland. The property also includes the Alagash Canal, a man-made canal
constructed approximately 60 years ago. The property is located inland from approximately
115 residences and seasonal homes located along the shoreline of Ste. Maries river. 1

[5]

The developers propose to divide the property into a 91-lot subdivision. Using lagoonbased communities in Florida as a model, the developers propose to widen and extend the
Alagash Canal and to build a new road through the property so as to provide both water and
land access to all 91 lots.

[6]

In order to bring their plans to fruition, the developers first approached the City of Sault
Ste. Marie in 2004. 2 Because the property is located within a coastal wetland area and
within the Great Lakes Flood Line, the city recommended that the developers first seek
approval from the Sault Ste. Marie Region Conservation Authority (the SSMRCA), which
they did. The SSMRCA denied their application because it was concerned that the proposed
development would interfere with the hydrologic function of the wetland.

[7]

The developers appealed the SSMRCAs decision to the Mining and Lands
Commissioner. The appeal was settled when the developers agreed to obtain a
hydrogeological study in accordance with Ministry of the Environment guidelines and
requirements. Following completion of the study, the SSMRCA approved the developers
plan, without conditions.

This number is taken from the appellants factum, at para. 6. The Boards reasons refer to approximately 200
residences located in the area (para. 4). This may include properties not on the shoreline.
2

This date is taken from the Boards decision, at para. 9. The appellants factum indicates that the year was 2006:
paras. 15 and 127. Despite this discrepancy in the date that the developers first approached the city, there does not
appear to be any discrepancy as to the date upon which the developers application was filed, namely 2007 (reasons,
para. 31).

2016 ONSC 6463 (CanLII)

request for an amendment to the citys Official Plan, rezoning, and draft subdivision
approval, among other things.

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However, a group that the developers allege was formed specifically to oppose the Pointe
Estate development, the Pointes Protection Association (the PPA), sought judicial review
of the Commissioners decision. Like the appeal to the Commissioner taken by the
developers, the judicial review application was settled. Pursuant to minutes of settlement
entered into between the PPA and the developers, the PPA agreed not to advance a position:
Before the OMB or in any subsequent legal proceeding that the
Resolutions passed by the SSMRCA in regards to the Pointe
Estates Development are illegal or invalid or contrary to the
provisions of the Conservation Authorities Act R.S.O. 1990 c.
C.27 and Ontario Reg. 176/06 or that the SSMRCA exceeded
its jurisdiction by passing the Resolutions with no reasonable
evidence to support its decision and considered factors extraneous
to those set out in subsection 3(1) of Ont. Reg. 176/06.
[9]

The developers then applied to the city for:

(a) an amendment to the Official Plan;
(b) zoning by-law amendments;
(c) approval of a draft plan of subdivision;
(d) approval of a condominium common element draft plan of subdivision; and
(e) closure of a portion of a road known as Alagash Drive.

[10] Although the developers plans were approved by city staff, their requests were denied by
city council. The developers appealed the councils decision to the Board. A hearing lasting
nearly three weeks was presided over by Board Member Blair Taylor. The Board heard from
24 witnesses during the hearing. Those witnesses included a number of experts.
[11] In reasons released on February 27, 2015, Member Taylor summarized his decision as
follows (para. 8):
the Board finds that the development application does not have
appropriate regard for matters of provincial interest, is not
consistent with the Provincial Policy Statement, is contrary to the
Official Plan of the City of Sault Ste. Marie, does not have
appropriate regard for the provisions of s. 51(24) of the Planning
Act as they relate to the draft plan of subdivision and the draft plan
of condominium, that the proposed zoning would be contrary to
the Official Plan and the proposed development application in its
entirety does not represent good planning.
[12]

As a result of these findings, the Board dismissed the developers appeal.

2016 ONSC 6463 (CanLII)

[8]

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[13] The developers raise numerous issues with the Boards decision, to which I will now
turn.

[14]

The developers raise two primary issues. They allege that the Board erred in finding:
(1) that the development would have a negative impact on coastal wetlands, contrary
to the 2014 Provincial Policy Statement (PPS) and the Official Plan; and
(2) that the development is contrary to the Official Plan on the basis that it is not
limited residential development.
(See developers factum, paras. 1 and 176; PPA factum, para. 5.)

[15] In their factum, however, the developers allege the following specific errors on the part of
the Board in their list of issues, namely that the Board:
(3) should have applied the 2005, rather than the 2014, PPS;
(4) failed to consider the issues of negative impacts and limited residential
development in the context of the entire PPS;
(5) failed to apply the PPS at the appropriate geographic scale.
(6) failed to balance the loss of coastal wetlands against the improvement of fish
habitat under the PPS in finding negative impacts;
(7) misinterpreted the meaning of limited residential development under the PPS;
(8) with respect to the witness, Peter Gagnon:
(a) breached procedural fairness and natural justice by letting Gagnon give expert
evidence about wetland loss in contravention of the settlement agreement with
PPA; and
(b) failed to provide reasons for preferring Gagnons evidence over that of their
experts; and
(9) failed to give reasons.
[16]

Clearly, these issues go beyond the two principle issues identified by the developers.

[17] In addition to specifically identifying the alleged errors set out above, the developers also
allege a number of additional errors on the part of the Board in other parts of their factum.
They allege that the Board:

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ISSUES

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(10) erred by ignoring expert evidence that the development is permitted under the
PPS because it consists entirely of recreational dwellings (para. 128);

(12) improperly ignored the decision of the SSMRCA ultimately to allow the
developers application (paras. 58 and 87)
(13) improperly reached its own conclusions about the impact of the development on
coastal wetlands and about whether the development constituted limited
residential development (para. 60);
(14) failed to consider s.1.1 and s.2 of the Act and failed to follow the PPS (paras. 72
and 73).
(15) improperly interfered during the hearing and demonstrated bias against the
developers (para. 49);
(16) improperly admitted the opinion evidence of Anthony Usher, a land use planner,
as fact evidence (paras. 46 and 47);
(17) improperly refused to allow the developers to call two reply witnesses (para.
51);
(18) improperly refused to grant an adjournment before calling on the parties to
make final submissions (para. 50);
(19) improperly limited those final submissions to two and one-half hours after
hearing three weeks of evidence (para. 52); and
(20) improperly consulted an unknown third party in reaching its decision
(para.180).
[18] The developers application for leave to appeal is governed by the provisions of Rule 61
of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194. Rule 61.03(4) provides that the
moving partys notice of motion and factum shall where practicable, set out the specific
questions that it is proposed the Divisional Court should answer if leave to appeal is
granted. Unfortunately, that has not been done in either the notice of motion or the factum.
I agree with the submission made on behalf of the PPA that, instead, the developers have
taken a shotgun approach in advancing their application for leave to appeal. Indeed, the
notice of motion actually lists 34 alleged errors of law on the part of the Board. I have
proceeded on the assumption that the applicants have narrowed their grounds to those set
out above.
[19] This sort of approach to an application for leave to appeal does no one any good. The
sheer number of errors alleged serves to dilute, not to distill, the merits of the appeal. Unlike

2016 ONSC 6463 (CanLII)

(11) did not properly have regard to information and materials considered by city
council, as required under s.2.1 of the Act (para. 82)

a case in which the question is whether an appeal should be allowed on any one of many
issues, in an application for leave to appeal it is necessary to consider each and every alleged
error in order to determine if leave should be granted and, if so, to formulate the questions for
the Divisional Court. Where the number of errors alleged approaches those alleged in this
case, that takes considerable time. The resulting delay likely weighs heavily on the parties,
and on the court.
[20] I also agree with the submission made on behalf of the PPA that the complaints made by
the developers can be grouped. However, I would group them differently than the PPA did
in trying to address them all in its factum. I believe that all of the developers' complaints can
be addressed while dealing with the following issues:
(1)

the applicable Provincial Policy Statement;

(2)

negative impacts on coastal wetlands;

(3)

limited residential development;

(4)

recreational dwellings;

(5)

having regard to the decisions of council and SSMRCA and the information
and materials before them;

(6)

the evidence of Peter Gagnon;

(7)

the evidence of Anthony Usher;

(8)

breaching the minutes of settlement;

(9)

consulting an unknown third party;

(10) procedural fairness; and

(11) reasons
[21] Before I address these issues, however, I must address one other, namely the test for
granting leave to appeal.
TEST FOR GRANTING LEAVE
[22]

Section 96(1) of the Ontario Municipal Board Act provides:

96. (1) Subject to the provisions of Part IV, an appeal lies from the
Board to the Divisional Court, with leave of the Divisional Court,
on a question of law.

[23] The jurisprudence developed under this section imposes two conditions in addition to the
requirement that the issue involve a question of law, namely:

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(1) that there is reason to doubt the correctness of the decision on that issue; and

See Aurora (Town) v. Sikura, 2011 ONSC 7642, at para. 2; Train v. Weir, 2012 ONSC 5157,
at para. 4; McGregor v. Rival Developments Inc. (2003), 174 O.A.C. 297, 40 M.P.L.R. (3d)
107 (Div. Ct.), 2003 CarswellOnt 2991, [2003] O.J. No. 3062, at para. 12; Proudfoot Motels
Ltd. v. Ontario (Municipal Board) (1996), 12 O.A.C. 35, 1996 CarswellOnt 2530, [1996]
O.J. No. 2126, at para. 1, citing Toronto (City) v. Torgan Developments (1990), 36 O.A.C.
318 (Div. Ct.).
[24]

I will expand upon the requirement that there be a question of law later in these reasons.

[25] With respect to the second requirement, namely that there be some reason to doubt the
correctness of the decision, the parties disagree. The developers argue that there need only
be good reason to doubt the correctness of the Boards decision. The PPA submits that the
test is whether the Boards decision is open to substantial doubt. The difference in the
positions of the two parties is tied to the question of what standard of review applies in an
application for leave to appeal. The developers argue that the standard of review applicable
on an application for leave to appeal is different than the standard of review on the appeal
itself. They argue that the standard on a leave application is the less differential standard of
correctness, even where, if leave is granted, the standard on the appeal would be the more
differential standard of reasonableness. To put their submissions into context, a brief
discussion of the different standards of review is necessary.
[26] In Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, the Supreme Court of
Canada held that deference is owed to tribunals making decisions that are either within their
field of expertise or that interpret their own statute or statutes closely connected to their
function (: para. 54). With respect to these decisions, even on questions of law, the standard
of review is reasonableness, not correctness. To be reasonable, a decision must fall within
a range of possible acceptable outcomes which are defensible in respect of the facts and the
law (para. 47).
[27] However, with respect to decisions not involving a tribunals own or a related statute, less
deference may be shown. For example, decisions involving certain constitutional questions
or true questions of jurisdiction are reviewed on the correctness standard (paras. 57 and 59).
[28] Returning to the test for leave to appeal a decision of the Board, some courts have applied
a test by virtue of which the Boards decision on a question of law must be open to
substantial doubt: Aurora (Town) v. Sikura, at para. 2; Train, at para. 23. Other courts
have applied a test by virtue of which the decision must be open to very serious debate:
Kraft Canada Inc. v. Menkes Lakeshore Ltd. (2007), 228 O.A.C. 1, 56 O.M.B.R. 391, at para.
13. Some courts have applied a good reason to doubt test: Dorsay Investments Ltd. v.
Toronto (City), 2010 ONSC 3212 (Div. Ct.), at para. 18. Still others have applied a test in
which there need be only some reason to doubt the decision: Ottawa (City) v. The TDL

2016 ONSC 6463 (CanLII)

(2) that the point of law is of sufficient importance to merit the attention of the
Divisional Court.

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[29] It seems to me that, like the parties choice of words in this case, a courts choice of
language relating to this requirement for leave depends on the courts view of the degree of
deference that should be shown to the Boards decision. Since Dunsmuir, many judges have
recognized that, if leave is granted, the Boards decisions on questions of law concerning its
own or related statutes will be reviewed on a standard of reasonableness. Accordingly, many
of those judges have applied that standard to the determination of whether leave ought to be
granted: R & G Realty Management Inc., at para. 6; The TDL Group Corp., at para. 23;
Royalcliff Developments Inc. v. Brampton (City), 2010 ONSC 5592, (Div. Ct.), at para. 12;
Train, at para. 6.
[30] On the other hand, some courts, while recognizing that greater deference will be paid to
the Boards decision on certain questions of law if leave is granted, have continued to apply
the less deferential standard of correctness at the leave stage: Dorsay Investments Ltd.,at
paras. 18 and 23; Toronto (City) v. 621 King Developments Ltd., 2011 ONSC 3007, at paras.
8 and 47.
[31] I see no reason why the standard of review on an application for leave to appeal should
be any different than the standard to be applied by the court, should leave be granted.
Applying a less deferential standard on the leave application has little impact where a court
denies leave. However, it may have a significant impact where a court grants leave on a
question of law which will attract deference on the appeal. It makes no sense to grant leave
to appeal by applying a less deferential standard where the appeal is unlikely to succeed once
a more deferential standard is applied. Such a rule does little to help an already
overburdened justice system.
[32] My view that the test on a motion for leave to appeal a decision of the Board should
reflect the standard of review to be applied if leave is granted was shared by Blair J. (as he
then was) in Material Handling Problem Solvers Inc. v. Essex (Town), [2003] O.J. No. 4619
(Div. Ct.). However, this approach was rejected by a panel of the Divisional Court in
DeGasperis v. Toronto (City), 185 O.A.C. 176, 2004 CarswellOnt 1093, [2004] O.J. No.
1153. In DeGasperis, Cunningham A.C.J. held at para. 4:
When questions of law are involved, correctness is the standard of
review and simply because an administrative tribunal has a
specialized expertise does not in my view mean that on questions
of law the correctness standard ought to be modified.
[33] DeGasperis, however, was decided before Dunsmuir. As a result, I believe that it can no
longer stand as authority for the proposition that the correctness standard must always apply
in applications for leave to appeal decisions of the Board. Instead, I believe that a court
being asked to grant leave from a decision of the Board must determine the likely standard of

2016 ONSC 6463 (CanLII)

Group Corp., 256 O.A.C. 142, 64 O.M.B.R. 1, 2009 CarswellOnt 7168, [2009] O.J. No.
4816, at para 16. Lastly, some courts appear to have applied both the some reason and
serious debate standards: R & G Realty Management Inc. v. North York (City) (2009), 62
O.M.B.R. 58, at paras. 4 and 15.

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[34] Once the degree of deference owed to the decision is made explicit, there is no need to
employ different language with respect to the degree to which the question of law itself must
be raised. It is enough that there be some legitimate reason to doubt either the correctness or
the reasonableness of the Boards decision. For the sake of these reasons, I will use the
good reason to doubt phraseology.
[35] Finally, with respect to the third requirement for granting leave, in order to be sufficiently
important, the question of law raised must be of general importance, beyond the obvious
importance to the parties: 970204 Ontario Ltd. v. Lech, Lightbody and OBrien, [2002] O.J.
No. 809 (Div. Ct.), at para. 3.
[36]

I now turn to the specific errors alleged by the developers.

ANALYSIS

The Proper Provincial Policy Statement

[37] Section 2 of the Act requires that all decisions made by the council of a municipality and
by the Board shall have regard to matters of provincial interest, some of which are referred
to in the section.
[38] Section 3(1) of the Act permits the Minister of Municipal Affairs and Housing to issue
policy statements on matters relating to municipal planning that are in the provincial interest.
[39] At the time the developers applied to the city and council made its decision to deny the
application, there was only one potentially applicable PPS, namely the 2005 PPS. However,
by the time of the developers appeal to the Board, the Minister had issued another policy
statement, namely the 2014 PPS.
[40] The 2014 PPS came into effect on April 30, 2014. There was a significant difference
between the 2005 and the 2014 PPS as far as the developers' plans for the property were
concerned. Pursuant to the 2005 PPS, development was permitted in non-provincially
significant coastal wetlands, such as those found in the applicants land. However, the 2014
PPS precluded development even in non-significant coastal wetlands in certain areas,
including the area of the proposed development in this case, unless a developer was able to
demonstrate that there will be no negative impacts on the natural features or their ecological
functions (: s. 2.1.5). I will deal in more detail with this below.
[41] In a pre-hearing motion, the developers submitted that the Board ought to apply the 2005,
and not the 2014, PPS. The Board, however, held that the 2014 PPS applied. The developers
argue that, in doing so, the Board failed to apply two long-standing principles by virtue of

2016 ONSC 6463 (CanLII)

review to be applied on the appeal and apply that standard to the question of leave. Where it
is reasonably possible that either the correctness or the reasonableness standard may apply, it
is my further view that the less deferential standard of correctness ought to govern whether
leave should be granted. To do otherwise risks a result in which leave to appeal is denied in
a case where the appeal itself might be allowed.

which the Board ought to have applied the 2005, and not the 2014, PPS. In Kalmoni
Establishments Inc. v. Milton (Town), [1995] O.M.B.D. No. 1247, 32 O.M.B.R. 474, the
Board held that a series of previous decisions required that the Board apply the official plan
policies in effect at the time of the application from which the appeal is taken. The Board
held similarly in Clergy Properties Ltd. v. Mississauga (City), [1996] O.M.B.D. No. 1840, 34
O.M.B.R. 277. The developers argue that the Board in this case erred in law in failing to
follow the Kalmoni and Clergy principles when it applied the 2014, rather than the 2005,
PPS.
[42] I agree with the developers that this raises a question of law: Royalcliff Developments
Inc. v. Brampton (City), 2010 ONSC 5592, at para. 11. With respect to the degree of
deference due to that question of law, Dunsmuir held that an exhaustive review was not
necessary in every case to determine the proper standard of review. If existing jurisprudence
has already satisfactorily established that standard, it need not be revisited (para. 57). As I
indicated above, even questions regarding the interpretation of a statute may be subject to a
reasonableness, rather than a correctness, standard if that statute is the tribunals own or
home statute. That is the case with the Ontario Municipal Board and the Planning Act. It
has already been determined by this court subsequent to the decision in Dunsmuir that
decisions of the Board when applying the Act are subject to the reasonableness standard of
review: D.D.S. Investments Ltd. v. Toronto (City) 2010 ONSC, at paras. 35-36; Royalcliff
Developments Inc., at para. 11; Niagara Escarpment Commission v. Ontario (Joint Board),
2013 ONSC 2497, at para. 56. Even if the Boards decision was reviewable on a correctness
standard, however, I would not grant leave to appeal with respect to this issue. There is no
good reason to doubt the correctness of the Boards decision.
[43] Unlike the situation at the time that Kalmoni and Clergy were decided, the question of
which PPS to apply is now explicitly set out in both the Act and the 2014 PPS itself. Section
3(5) of the Act states:
3. (5) A decision of the council of a municipality, a local board, a
planning board, a minister of the Crown and a ministry, board,
commission or agency of the government, including the Municipal
Board, in respect of the exercise of any authority that affects a
planning matter,
(a) shall be consistent with the policy statements under subsection (1) that are in
effect on the date of the decision; and
(b) shall conform with the provincial plans that are in effect on that date, or shall
not conflict with them, as the case may be. [Emphasis added.]
[44]

Section 4.1 of the 2014 PPS itself states:

4.1 This Provincial Policy Statement applies to all decisions in
respect of the exercise of any authority that affects a planning
matter made on or after April 30, 2014. [Emphasis added.]

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[46] The Board referred to and relied on these provisions in both the Act and the PPS in
making its decision. There is no ambiguity in either provision. Each clearly requires the
Board to apply the PPS in effect at the time of the hearing before it.
[47] These provisions superseded the authority referred to in Kalmoni and Clergy. The Board
was correct, in my view, in rejecting the developers argument that those authorities applied
in light of the provisions set out above.
Negative Impacts on Coastal Wetlands
[48] Section 2.1.5 of the 2014 PPS (to which I will now refer simply as the PPS, unless
clarification is needed) prohibited development of certain specific coastal wetlands. It
provided as follows:
Development and site alteration shall not be permitted in coastal
wetlands in Ecoregions 5E unless it has been demonstrated that
there will be no negative impacts on the natural features or their
ecological functions.
[49] The developers property included 48.54 hectares of wetlands. There was no dispute that
those wetlands were located in Ecoregion 5E. Therefore, the property could not be
developed or altered unless the developers could demonstrate that there would be no negative
impacts on the natural features or their ecological functions.
[50] The citys Official Plan also contained a section that precluded development causing
negative impacts. As the Board noted, s.H.3 of the Official Plan stated that if an
Environmental Impact Study concludes that the overall impact on the natural heritage feature
or area, or ecological function, is negative (i.e. detrimental), the development application
shall not be approved (reasons, para. 84). As well, several policies contained in the Official
Plan provided that there should be no loss of wetland or its functions. Policy W5 provided
that development shall be permitted in wetlands that are not provincially significant only
where there is no loss of wetland functions, among other things. Policy W6 provided that:
The loss of any wetland areas to development shall be made up by
the creation and/or dedication of other wetland areas.
[51] At the hearing, the developers called the citys Director of Planning, Donald McConnell,
as a witness. McConnell had prepared a report for city council in which he had
recommended that council approve the developers application, subject to certain conditions.
In his report, McConnell indicated that there would be a net loss of wetland. However, he
wrote that this would be mitigated by a significant increase in fish habitat, which the

2016 ONSC 6463 (CanLII)

[45] There is no doubt that the legislature is entitled to enact such retroactive legislation,
especially where it is legislation designed to protect the public interest: R.S. v. R.H. (2000),
49 O.R. (3d) 451 (Ont. S.C.), at paras. 7 and 12.

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[52] As mentioned earlier, council denied the developers application notwithstanding

McConnells recommendation. Before the Board, McConnell testified that there were 1,567
hectares of wetlands within the municipal boundaries of the City of Sault Ste. Marie.
According to McConnell, there would be a loss of only about 40% of the wetlands on the
developers property, which would result in a net loss of only about 1% of the total wetlands
located within the city boundaries.
[53] The developers argued before the Board that the term negative impacts had to be
interpreted in light of the recognition in the PPS that some policies could not, or should not,
be applied to some areas of the province. Part III of the PPS, entitled How to Read the
Provincial Policy Statement, sets out the following under the heading Geographic Scales of
Policies:
The Provincial Policy Statement recognizes the diversity of
Ontario and that local context is important. Policies are outcomeoriented, and some policies provide flexibility in their
implementation provided that provincial interests are upheld.
While the Provincial Policy Statement is to be read as a whole, not
all policies will be applicable to every site, feature or area. The
Provincial Policy Statement applies at a range of geographic
scales.
Some of the policies refer to specific areas or features and can only
be applied where these features or areas exist. Other policies refer
to planning objectives that need to be considered in the context of
the municipality or planning area as a whole, and are not
necessarily applicable to a specific site or development proposal.
[54] In addition to relying on this part of the PPS, the developers also relied on a document
entitled An Introduction to the Provincial Policy Statement 2014: Northern Ontario Draft for
Discussion (the Northern Ontario Draft). At page one of that document, it states:
The Provincial Policy Statement 2014 has been revised to better
reflect, among other things, the needs and unique circumstances of
Northern Ontario, many areas of which are rural.
[55] McConnell testified that, in light of these provisions, in contrast to Southern Ontario
which had paved over at least 90% of its wetlands, the loss of less than 1% of the total
wetlands in Sault Ste. Marie, balanced against the gain of fisheries habitat, was not a negative
result overall (reasons, para. 123).

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evidence indicates would result from the creation of a fish spawning area in Block 100
(reasons, para. 115).

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[57] The Board held that the loss of wetlands was contrary to s.2 of the Act, constituted a
negative impact under the PPS, and also contravened the Official Plan. With respect to s.2 of
the Act, the Board held that the developers plans contravened subsections (a) (the protection
of ecological systems, including natural areas features and functions) and (p) (the appropriate
location of growth and development)(para. 137).
[58]

With respect to the Official Plan, the Board held (para. 146):
While the development applications, if approved, would provide
for some form of enhanced fisheries habitat due to the
refurbishment of the existing Alagash Canal and a fish spawning
area, that does not trump the destruction of a significant portion of
a coastal wetland that is of interest both to the Province of Ontario,
the Government of Canada and through the International Joint
Commission, the United States of America.

[59] The developers have not challenged the Boards finding with respect to the Official Plan.
Nor have the developers challenged the Boards finding with respect to the contravention by
the proposed development of s.2(a) and (p) of the Act.
[60] With respect to the Boards finding under the PPS, the developers argue that the Board
failed to turn its mind to the definition of negative impacts and substituted its own views
on the issue, instead (factum, para. 99). The developers argue that it is necessary to
undertake a balancing of the impacts on both the wetlands and the fisheries habitat under the
PPS. In order to appreciate the developers submission, it is necessary to understand several
definitions set out in the PPS.
[61] Section 6 of the PPS sets out definitions for various terms used throughout the document.
Two aspects of the definitions of negative impacts are relevant to this application. Under s.6,
negative impacts is defined as including:
(1) in regard to fish habitat, any permanent alteration to, or destruction of fish habitat,
except where, in conjunction with the appropriate authorities, it has been
authorized under the Fisheries Act; and
(2) in regard to other natural heritage features and areas, degradation that threatens
the health and integrity of the natural features or ecological functions for which an
area is identified due to single, multiple or successive development or site
alteration activities. [Emphasis added.]
[62]

The words natural heritage features and areas are defined as meaning:

2016 ONSC 6463 (CanLII)

[56] The Board rejected McConnells evidence. Instead, it preferred the evidence of Gagnon.
Gagnon had performed his own calculation of the amount of wetland that would be lost due
to the developers plans. He estimated that 37.2 hectares, or 77% of the 48.5 hectares, would
be destroyed. I will return to Gagnons evidence later in these reasons.

Page: 14

[63] Thus, natural heritage features and areas under the PPS included both the wetlands found
in the proposed area of development and fish habitat. The developers argue that this required
the Board to engage in an exercise in which it balanced the loss of one with the creation of
the other.
[64] The PPA submits that this ground of appeal raises an issue of fact, and not of law. This
submission is understandable, given the way in which the developers have framed their
arguments regarding the Boards findings on the issues of negative impacts, limited
residential development, and recreational residences. With respect to each of these issues,
the developers have argued that the Board improperly failed to accept their expert evidence
(factum, paras. 61(6), 84, 86, 128, 134, 147, 151).
[65] If the expert evidence related solely to an issue of fact, I would agree with the PPA and
dismiss these grounds of appeal on the basis that they do not raise a question of law.
However, the expert evidence in question related to whether the proposed development fit
within the prohibitions to development contained in the PPS with respect to the loss of
wetland, etc. As such, this issue is one of mixed fact and law. Where questions of law can
be extricated from such mixed questions, they are reviewable as questions of law: Housen v.
Nikolaisen, [2002] SCC 33, 2 S.C.R. 235, 2002, at para. 36. In my view, they can in this
case. The legal issue is whether the Board properly interpreted the meaning of the term
negative impacts in the PPS. This issue is a question of law, reviewable on a
reasonableness standard: Royalcliff Developments Inc., at para. 11. As with the issue of
which PPS to apply, even if the issue of negative impacts was reviewable on a less
deferential standard, I would not grant leave. There is no good reason to doubt the
correctness of the Boards decision.
[66] Contrary to the developers submission that the Board failed to turn its mind to the
definition of negative impacts, it is clear from para. 146 of the Boards reasons (set out
above) that the Board rejected the developers argument that the PPS required the Board to
balance the gain in fisheries habitat with the loss of wetlands. In my view, the Boards
decision in this regard was correct.
[67] Nothing in the PPS explicitly requires the Board to engage in the balancing exercise
advocated by the developers. Nor does the PPS implicitly require such an exercise. Indeed,
the opposite is true. Although fish habitat is included along with the particular wetlands in
question under the definition of natural heritage features and areas, the PPS sets out two
different tests with respect to negative impacts on fish habitat, on one hand, and on other
natural heritage features and areas, on the other. This requires the Board to consider each of
these natural heritage features and areas separately. The scheme of the PPS is such that

2016 ONSC 6463 (CanLII)

features and areas, including significant wetlands, coastal

wetlands, other coastal wetlands in Ecoregions 5E, 6E and 7E, fish
habitat which are important for their environmental and social
values as a legacy of the natural landscapes of an area. [Emphasis
added.]

Page: 15

[68] The developers rely on the decision of a full panel of this court in Niagara Escarpment
Commission. They submit that the court in that case approved of a similar balancing exercise
in the decision undertaken by the Joint Board from which the Niagara Escarpment
Commission (the NEC) appealed. In my view, Niagara Escarpment Commission is readily
distinguishable. In that case, the Joint Board found that there was no negative impact caused
by the removal of approximately 32.8 hectares of trees from property owned by the applicant,
Walker Aggregates Inc., because there was a net gain in woodland. In Niagara Escarpment
Commission, the issue was whether the Joint Board could have regard to reforestation outside
of the Walker property in determining whether there was a negative impact. The Joint Board
held that it could. It held that the boundaries of natural features are defined by their
ecological characteristics and functions [under the PPS], and not by property ownership.
The Joint Board held that the loss of 32.8 hectares of forest on Walkers property was offset
by the reforestation of over 40 hectares of forest elsewhere.
[69] In Niagara Escarpment Commission, the Joint Board was not balancing negative impacts
on two different natural heritage features. Instead, it was determining whether there was a
negative impact on one.
[70] The developers also rely on the decision of the Board in R and D Investments Inc. v.
Scarborough (City), 2010 CarswellOnt 5043, in support of their submission that the proper
interpretation of the term negative impacts requires a balancing of interests under the PPS.
In my view, like the Niagara Escarpment Commission case, the decision in R and D
Investments does not stand as authority for the developers submission.
[71] In R and D, the issue before the Board was whether a ten-meter buffer zone between the
proposed subdivision and the bank of the Rouge River Valley was sufficient, or whether a
30-meter buffer was necessary, instead. The Board held that ten meters was sufficient. The
developers cite the following passage from the Boards decision (para. 28):
The Board notes that the PPS must be read in its entirety and
recognizes the need to balance interests. The definition of a
negative impact does not say that all impacts are negative impacts;
these must actually threaten the health and integrity of the natural
feature but in the case at hand, the only natural features are found
within the Rouge Valley up to the long term stable top of bank.
The Board determines that the 10-metre buffer complies with the
intent of the PPS broad-based protective policies in respect of
sensitive features like the Rouge System.
[72] It is obvious from this excerpt that the Board found that the health and integrity of the
natural features in question were not threatened by a smaller buffer zone. R and D does not
stand as authority for the proposition that a negative impact on one natural heritage feature
must be balanced against a positive impact on another.

2016 ONSC 6463 (CanLII)

development is precluded where either fish habitat or other natural features suffer a negative
impact.

[73] In R and D, the Board accepted the evidence of the applicants expert that there would be
no adverse impacts on the Rouge Valley as a result of the proposed development. That is a
completely different case than the one that was before the Board in this case. In this case, the
Board member had before him, and made reference to, evidence from at least two sources
that any loss of wetlands would adversely impact the health and integrity of the natural
features or ecological functions of the areas in question. One of those sources was the
developers own expert report from Cold Water Consulting Ltd. (the Cold Water report).
That report, entitled Pointe Estates Subdivision Scoped Environmental Impact Study for
Development in a Wetland, confirmed that the loss of wetlands would result in a loss of
hydrologic function, loss of wetland habitat for fish, birds and mammals, and impact water
quality. As the Board pointed out, the report indicated that measures proposed to reduce the
impact would only partially mitigate these adverse effects (para. 97).
[74] The second source of information, also referred to by the Board, was the SSMRCAs
report, entitled Proposed Pointe Estate Subdivision Assessment. This was the report that
resulted in the SSMRCA denying the developers application. The report stated (reasons,
para. 98):
The presence of the wetland, its functions and the associated
habitat and biodiversity features of this area are considered
important natural features that in their current state provide the
hydrological and ecological functions important to this water shed;
The wetland located on the site of the proposed development is
significant to the local area in that it has significant flood
attenuation function and water quality improvement benefits for
the immediate area and the Great Lakes System;

A wetland cannot be created to replicate this 60+ functions of an

existing wetland which all go towards promoting a cleaner
environment and healthier community. Regardless of size every
wetland has a significant associated value;
[75]

Thus, the Boards decision was justifiable even on a factual basis.

Limited Residential Development

[76] The developers lands were rural lands within the meaning of both the PPS and the
Official Plan. Section 1.1.5.2 of the PPS provides:
On rural lands located in municipalities, permitted uses are:

2016 ONSC 6463 (CanLII)

Page: 16

Page: 17
b) resource-based recreational uses (including recreational
dwellings);

[77] The Official Plan also made reference to the term limited residential development. By
way of a 2009 amendment to the Official Plan, s.2.36, provided that:
Rural land uses include agriculture, forestry, extractive uses such
as mining, quarry and aggregate removal, golf courses, riding
academies, kennels, cemeteries, approved land fill sites, limited
residential development, churches and schools. [Emphasis added.]
[78] No definition of the term limited residential development was contained in the PPS.
The Northern Ontario Draft stated that the meaning of limited residential development
might vary between different locations within Ontario, having regard to various factors,
including population, land use patterns and density, proximity of settlement areas and the
presence of natural features and areas.
[79] The Official Plan, while not formally defining the term limited residential
development, contained the following paragraph, in s.2.36 (reasons, para. 90):
As it is the intent of this Plan to direct the majority of residential
growth within the existing Urban Settlement Area, generally not
more than ten (10%) per cent of new residential development
should occur in the Rural Area.
The Rural Area is all of the area of the municipality outside the
Urban Settlement Area. The Urban Settlement boundary is
identified on Land Use Schedule C.
[80] The Official Plan also provided, in Policy RA-11, that further development of lots and
areas zoned Rural Area would be limited to the creation of two lots.3 Thus, in order to
proceed with the proposed development, an amendment to the Official Plan would be
required.
[81] McConnell had recommended to city council that the Official Plan be amended to permit
the development of more than two lots in the Rural Area of the proposed development. In his
testimony before the Board, he admitted that a 91-lot subdivision of the type being proposed
was a big subdivision for the City of Sault Ste. Marie. He stated that demand for lots in the
city over the last ten years was usually about 100 lots per year, of which 30 were in the Rural
Area. However, he testified that if the lots in question were developed at the average rate of
about nine per year, this would be limited residential development in his view when added to

It is unclear over what time frame the creation of these lots is permitted.

2016 ONSC 6463 (CanLII)

c) limited residential development;

Page: 18

[82] The Board rejected the opinion of McConnell and the developers argument that the
proposed development constituted limited residential development. In doing so, the
developers argue that the Board erred in failing to consider the uncontested reports and
testimony of their experts (factum, para. 61(6)). This argument clearly has no merit.
[83]

The Board held, at para. 142:

The Board finds that the establishment of a 91-lot estate residential
(lifestyles) plan of subdivision does not constitute limited
residential development as in the ordinary course the City would
expect 100 new lots a year, and as Mr. McConnell stated, a 91-lot
plan of subdivision is a big development in the City.

This excerpt demonstrates that the Board did consider the reports and testimony of the
developers experts. The Board rejected McConnells characterization of the development as
limited residential development, which was based on an uptake of between seven and
twelve lots per year. Assuming, without deciding, that this raises a question of law, that
question of law relates to the Boards interpretation of its own statute. Therefore, should
leave be granted, it would be reviewed on the deferential standard of reasonableness. I can
see no good reason to doubt the reasonableness of the Boards approach to the meaning of
the term limited residential development. Even at the development rate of approximately
nine lots per year, the proposed development would account for approximately ten out of 30,
or one-third, of all new residential development in the Rural Area of Sault Ste. Marie.
[84] The developers also argue that the Board conflated the meaning of the word limited
with that of the word size (factum, para. 20). They argue that limited means that
something is confined within certain boundaries, not restricted in size. They maintain that
the number of residential lots of which the proposed development will consist is irrelevant;
what matters is that it will be confined to a certain area. The developers submit that the
purpose behind the PPS policy of permitting only limited residential development is the
prevention of urban sprawl. They argue that this purpose is served by confining the proposed
development to an area which already contains numerous residences.
[85] I am unable to accept the developers argument. According to the submissions of the
developers, there would be no limit to the amount of development that could take place in
rural areas, as long as that development was confined to pockets in various places outside
the Urban Settlement area. This would be contrary to s. 2(p) of the Act and to those portions
of the Official Plan set out above.
[86] In my view, the developers argument with respect to the meaning of the term limited
residential development is unreasonable. Even if I am wrong in that view, it is my further

2016 ONSC 6463 (CanLII)

the 200 lots already in the area of the development. This would also comply with the
requirement in s.2.36 of the Official Plan that not more than 10% of new residential
development would occur in the Rural Area.

Page: 19
opinion that the Boards interpretation of that term fits within a range of acceptable
outcomes. There is, therefore, no good reason to doubt the reasonableness of its finding.

[87] As set out above, in addition to permitting limited residential development on rural lands,
s.1.1.5.2 of the PPS permits resource-based recreational uses (including recreational
dwellings). Like the term limited residential development, the term recreational
dwelling is also not defined in the PPS. However, the PPS does define the word
recreation in s.6. That term is defined as meaning:
leisure time activity undertaken in built up or natural settings
for purposes of physical activity, health benefits, sport
participation and skill development, personal enjoyment, positive
social interaction and the achievement of human potential.
[88] Relying on the foregoing definition and on jurisprudence defining the term dwelling,
the developers argue that the term recreational dwellings refers to dwellings which are
used for year-round recreational use. The developers contend that the Board erred in
ignoring the evidence of their expert, Bill Wierzbicki, a land use planner, that the proposed
development consisted entirely of recreational dwellings. Wierzbicki testified that, in his
opinion, the proposed development would be permitted under the PPS on the basis that it was
a development for the boating community (transcript, v. 5, p. 842).
[89] It is true that the Board did not mention the substance of Wierzbickis evidence about
recreational dwellings. However, that is likely because the Board found that the proposed
development contravened the Act, the PPS, and the Official Plan on the basis that it resulted
in negative impacts and was not limited residential development. The Board was not
required to go on to consider whether, if the proposed development did not contravene these
provisions and policies, it might have been permissible as recreational dwellings.
Having Regard to the Decisions of Council and the SSMRCA and the Information and
Materials before Them
[90] Section 2.1 of the Act requires that, when making a decision under the Act that relates to
a planning matter, the Board shall have regard to:
(1) any decision that is made under the Act by a municipal council or by an approval
authority and relates to the same planning matter; and
(2) any supporting information and material that the municipal council or approval
authority considered in making the decision described above.
[91] In order to comply with this section, the Board must, at a minimum, scrutinize and
carefully consider the decisions of council and, in this case, the SSMRCA and the
information and material that was before each of these decision-makers: Minto Communities
Inc. v. Ottawa (City), [2009] O.J. No. 4913 (Div. Ct.), at para. 33.

2016 ONSC 6463 (CanLII)

Recreational Dwelling

Page: 20

[93] First, I do not agree that the Board failed to comply with s. 2.1. The Board did, in fact,
make extensive reference to the materials and information before the SSMRCA, and city
council, for that matter. With respect to councils decision to deny the developers
application, the Board specifically stated in its reasons (para. 136) that it considered the
information and the materials that were before council. There is nothing in the reasons to
cast doubt on the truth of this statement.
[94] With respect to the SSMRCA, the Board dealt at length with the Cold Water report and
the report prepared by SSMRCA staff. While the Board did not refer in its reasons to the
hydrogeological study obtained by the developers after they appealed the SSMRCAs
decision to turn down their application, the developers have not argued that this study would
have had an effect on the issue of negative impacts. Moreover, a decision-maker is not
obliged to refer to every piece of evidence it considered in making its decision. The mere
failure to mention a piece of evidence is not sufficient proof that a decision-maker failed to
consider it. Where a party contends that a decision-maker failed to consider a particular
piece of evidence, there will be no error of law committed unless the reasons demonstrate
that this is the case: R. v. Morin, [1992] 3 S.C.R. 286, at para. 20. The reasons of the Board
do not demonstrate that this is so.
[95] The Board made specific, and lengthy, reference to McConnells evidence, as I have
mentioned. As I have also mentioned, in addition, it referred to the Cold Water report. The
Board, correctly as I have indicated, held that the loss of wetlands was not offset by the
creation of fish habitat. It also held, again correctly in my view, that the creation of a 91-lot
subdivision in a rural area of a city that ordinarily creates only about 30 such lots in a year
was not limited residential development. Given these conclusions, it was not necessary for
the Board to refer to other expert evidence, such of that of Wierzbicki, much of which
duplicated the evidence of McConnell on these points, and the hydrogeological study.
[96] The developers also submit that the Board improperly ignored the decision of the
SSMRCA to permit the development. Once again, this submission is simply incorrect. The
Board set out the factual background in its reasons, which included the SSMRCAs ultimate
decision to permit the development. The Board also considered the SSMRCA staff report.
However, the Board went on to consider the evidence it had before it, which included
evidence that there would be a loss of wetland. The Board simply reached a different
conclusion than that reached by the SSMRCA. It was entitled to do so. The Boards
decision was made in the context of different governing legislation, involving different
considerations than those of concern to the SSMRCA, despite some overlap between them.
There is no good reason to doubt the reasonableness of the Boards decision.

2016 ONSC 6463 (CanLII)

[92] The developers contend that the Board failed to do this with respect to the SSMRCAs
decision ultimately to approve the developers application without conditions. Assuming that
a failure of the Board to comply with s. 2.1 of the Act constitutes an error of law, this issue
still fails to meet the prerequisites for leave to be granted.

Page: 21
[97] Even if I am wrong in my view of the reasonableness of the Boards decision with respect
to this issue, I am of the further view that it is not an issue of sufficient importance to merit
appellate review. Its importance does not extend beyond its importance to the parties.

[98] As I indicated earlier in these reasons, there was a discrepancy in the evidence before the
Board with respect to the amount of wetlands that would be lost if the development was
allowed. McConnell testified that there would be a loss of only about 40% of the existing
wetland in the area of the development, representing the loss of only slightly more than 1%
of the total wetlands within the municipal boundaries of Sault Ste. Marie. Wierzbicki
testified similarly.
[99] Gagnon, however, testified that the development would result in the loss of
approximately 77% of the wetland found in the area of the proposed development. He
arrived at that conclusion by creating a transparency of the proposed development and
placing that over top of a map showing the wetlands. Gagnon, a former forester, then used a
dot/grid method of measurement and concluded that 37.2 of 48.5 hectares of wetland would
be destroyed.
[100] In addition to arguing that Gagnons evidence was given in breach of the settlement
agreement between the developers and the PPA, which I will deal with later, the developers
submit that the Board erred in permitting Gagnon to give this evidence for three reasons:
(1) the Board breached procedural fairness because Gagnons evidence was actually
expert evidence and Gagnon never signed an acknowledgment of expert duty,
never participated in a meeting of like experts, and never submitted an expert
report (factum, para. 146);
(2) the Board erred in preferring the testimony of Gagnon over that of McConnell and
Wierzbicki; and
(3) the Board failed to provide reasons for doing so.
[101] The second and third arguments listed above are easily disposed of. First, the Board did
provide reasons for rejecting the evidence of the developers experts. At para. 133 of its
reasons, the Board wrote:
In reaching this decision the Board has preferred the evidence of
the respondents, and particularly that of Peter Gagnon.
Notwithstanding all the resources available to the Applicants and
the City Planning Department, Mr. Gagnon did what no land use
planner called by the Applicants did: he took the Citys Drainage
and Elevation Overview (Exhibit 51A) depicting the extent of the
wetlands on the Subject Lands and created a transparent overlay of
the draft plan of subdivision. With this overlay he alone was able
to calculate the loss of wetlands from the proposed development.

2016 ONSC 6463 (CanLII)

The Evidence of Peter Gagnon

Page: 22

[140] While the Applicants attempted to discount the loss of

wetland by indicating only some portions of the wetlands would be
subject to fill, that would appear to the Board to be inconsistent
with the other provisions of the reports of the Applicants where it
is noted that the top of the canal bank will be set 1.5 metres above
the 100-year return period water level of 184.4 metres which if
contrasted to [the draft plan of subdivision] the topographic
notations show that none of the existing Subject Lands currently
exceed 185.9 metres.
[141] Counsel for the Applicants called a civil engineer in reply
evidence: the gist of which was that the loss of wetland as
proposed by [Gagnon] was overstated and that in his opinion the
loss of wetland would only be between 10 to 20 ha, and not the
37.2 ha as calculated by Mr. Gagnon. The Board ascribes little
weight to this evidence as in cross-examination by Mr. Oswald the
witness admitted that he did not take into account the fact that the
top of the canal bank would be set 1.5 metres above the 100-year
return period water level of 184.4 metres.
[103] Second, if it was an error of any kind to prefer the evidence of Gagnon, it was not an
error of law.
[104] The developers argument that the Board breached procedural fairness in allowing
Gagnons testimony about the amount of wetland loss is more troubling than its other
arguments. In my view, the Board did commit an error in failing to recognize that Gagnons
evidence was not lay witness evidence and was, instead, expert evidence.
[105] Evidence is expert evidence whenever it provides the trier of fact with a ready-made
inference from proven facts when the technical or scientific nature of the subject matter is
likely to be beyond the fact-finders knowledge or experience (: Sopinka, Lederman &
Bryant, The Law of Evidence in Canada, 3rd ed. (Markham, Ont.: LexisNexis Canada, 2009)
at para. 12:34).
[106] In my view, Gagnons testimony was opinion evidence, just the same way that the
evidence of McConnell and Wierzbicki about how much wetland would be lost was opinion
evidence. While the method employed by Gagnon to measure the loss might have seemed
simpler and more comprehensible to the Board, it was nonetheless a method that went
beyond what lay people ordinarily themselves employ. Gagnon wasnt using a tape measure,
for example, and relating what number he saw when he looked at the tape. By the Boards
own admission, Gagnon was using a method of measurement employed by expert foresters.

2016 ONSC 6463 (CanLII)

[102] The developers called John McDonald, an engineer, to give evidence in reply to that of
Gagnon concerning the amount of wetlands that would be lost. The Board rejected that
evidence, setting out its reasons for doing so in paras. 140 and 141 of its reasons:

Using that methodology, Gagnon provided his opinion as to what the loss of wetland would
be. For these reasons, Gagnons evidence ought to have been subjected not only to the
procedural requirements referred to by the developers, such as providing a report, an
acknowledgment of duty, etc., but the Board ought to have explicitly engaged in the gatekeeping function required by virtue of the decision of the Supreme Court of Canada in R. v.
Mohan, [1994] 2 S.C.R. 9, and more recently in White Burgess Langille Inman v. Abbott and
Haliburton Co., [2015] 2 S.C.R. 182, 2015 SCC 23. Indeed, the Board should have engaged
in the very same kind of gate-keeping function that caused it to reject the expert evidence of
Anthony Usher, to which I will refer shortly.
[107] In my view, the Boards failure to recognize Gagnons evidence as expert evidence and
to engage in the required gate-keeping function was an error of law. However, it was not an
error of law the importance of which extends beyond the obvious importance to the parties,
so as to require appellate consideration.
The Evidence of Anthony Usher
[108] During the hearing, the PPA attempted to call Anthony Usher, and to have him qualified
as an expert in land use planning. The developers challenged Ushers qualification as an
expert. The Board reserved its decision and heard Ushers evidence in full. In its reasons
dismissing the developers appeal, the Board agreed with the developers that Usher ought not
to give expert evidence because he had become an advocate on behalf of the PPA. Instead,
the Board decided that it would assign the appropriate weight to Mr. Ushers evidence, as a
fact witness and not as an expert (reasons, para. 73).
[109] The developers argue that the Board erred in doing anything with Ushers evidence other
than rejecting it outright. This argument has merit. Subsequent to the decision of the Board
in this case, the Supreme Court of Canada released its decision in White Burgess. In White
Burgess, the Supreme Court held that the evidence of an expert witness who is unable or
unwilling to fulfill his duty to the court to provide fair, objective and non-partisan opinion
evidence should be excluded altogether (para. 46). As I read the Boards reasons, it
concluded that Usher had failed to meet the duty he owed to the Board as an expert.
Therefore, his evidence should have been excluded.
[110] However, although the issue of whether Ushers evidence should have been excluded
gives rise to a question of law, it is not one that transcends its importance to the parties. In
fact, its importance to the parties seems to be minimal, given that the Board appears not to
have relied upon Ushers evidence. It is not mentioned in any part of the Boards reasons
dealing with any of the substantive issues.
Breaching the Minutes of Settlement
[111] The developers contend that the Board permitted an abuse of its own process by
admitting Gagnons evidence about the loss of coastal wetlands. They maintain that
Gagnons evidence breached the minutes of settlement by advancing the position that the
SSMRCAs approval was illegal or invalid or contrary to the Conservation Authorities Act

2016 ONSC 6463 (CanLII)

Page: 23

Page: 24

[112] I do not accept the developers argument that Gagnons evidence constituted a breach of
the minutes of settlement. In my view, because they restricted the PPAs right to challenge
the merits of the developers application, the minutes of settlement must be strictly
construed. I agree with the submissions made on behalf of the PPA that the minutes dealt
specifically with the SSMRCAs approval under the Conservation Authorities Act and its
regulations. The minutes did not restrict the PPA from advancing issues relating to the
Planning Act and the PPS.
[113] The developers argument sounds alarmingly like an argument that the SSMRCA had
somehow occupied the field regarding the loss of wetlands, preventing Gagnon from
saying anything about it before the Board. On the contrary, while the Board was obliged to
consider the SSMRCAs decision, it was also obliged to arrive at its own conclusion
regarding possible negative impacts under the Act. Gagnons evidence about the extent of
the loss of wetlands was relevant to that issue. The fact that the loss of wetlands was also a
consideration relevant to the SSMRCAs decision does not mean that Gagnon was adopting a
position that the SSMRCAs decision was illegal. His evidence related to Planning Act
matters, not to the Conservation Authorities Act or its regulations.
Consulting an Unknown Third Party
[114] The developers raise as a potential ground of appeal the possibility that the Board
consulted an unknown third party in the course of making its decision to dismiss their appeal.
They raise this issue as a result of the following excerpt from the Boards reasons, at para.
131:
After reviewing the evidence and considering the submissions of
counsel, the Board has undertaken an independent assessment of
all of the oral evidence, and an independent assessment of all of
the studies, reports and other written and electronic documents that
form the record of the hearing. [Emphasis added.]
[115] The developers submit that, based on this statement, it appears that a third-party
conducted this independent assessment and assisted the Board with its decision (factum,
para. 180).
[116] If there was good reason to believe that this had occurred, it would have gone to the very
heart of the Boards decision and would have resulted in leave being granted with respect to
this issue. However, there is no good reason to believe that it did.

2016 ONSC 6463 (CanLII)

and O. Reg. 176/06. The developers argue that Gagnons evidence constituted an indirect
attack on the SSMRCAs decision to approve the developers application because it
suggested that the SSMRCAs decision was in breach of the Conservation Authorities Act
and regulations, which prohibited development in wetlands that would affect the
conservation of land.

Page: 25

As noted above, during the course of this hearing, the Board heard
evidence from over 20 witnesses: some lay and some expert.
[118] The excerpt is followed by these paragraphs:
[132] The Board has juxtaposed all that evidence against s. 2 of
the Planning Act, the 2014 Provincial Policy Statement, the Citys
Official Plan, the Citys Zoning By-law, and s. 51(24) of the
Planning Act.
[133] Having done so, the Board has found that the development
applications do not have the appropriate regard for s. 2 of the
Planning Act, are not consistent with the Provincial Policy
Statement, do not conform to the Official Plan, and do not
represent good planning. In reaching this decision the Board has
preferred the evidence of the respondents, and particularly that of
Peter Gagnon
[119] Put in context, it is clear that the Board member was merely expressing the process by
which he, and he alone, had arrived at his conclusion.
Procedural fairness
[120] The developers raise two issues with respect to procedural fairness. First, they argue that
the Board erred in its conduct of the hearing. Second, the developers maintain that the Board
demonstrated bias by calling its own witness regarding a non-issue and by intervening on
numerous occasions during the examination of witnesses called by other parties.
[121] There is some controversy in the case law with respect to the standard of review
regarding questions relating to breaches of natural justice or procedural fairness. In cases
from this court, such as Manpel v. Greenwin Property Management (2005), 200 O.A.C. 301,
2005 CanLII 25636, and Forestall v. Toronto Policy Services Board (2007), 228 O.A.C. 202,
it has been held that there is no standard of review for breaches of procedural fairness and
natural justice (Manpel, at para. 16; Forestall, at para. 38). These cases are based on the
Ontario Court of Appeal decision in London (City) v. Ayerswood Development Corp., [2002]
O.J. No. 4895. However, in Canada (Citizenship and Immigration) v. Khosa, [2009] 1
S.C.R. 339, Binnie J., writing on behalf of the majority, held that Dunsmuir required that
procedural issues are to be determined on a correctness standard of review (para. 43, p. 371).

2016 ONSC 6463 (CanLII)

[117] I do not interpret the Board Members statement in the way suggested by the developers.
In my view, the Board was merely stating that, contrary to the opinions expressed in favour
of or against the proposed development, the Board had considered the matter from an
independent point of view. This is clear from the context in which the foregoing comment
was made. The excerpt above is from a paragraph that begins:

Page: 26

[123] Turning to the first issue raised, the developers argue that the Board improperly refused
to allow them to call two reply witnesses, refused to allow an adjournment before final
submissions, and limited those final submissions to two and one-half hours. I need not cite
any authority in support of the proposition that the Board has the power to control its own
process. The Boards authority to do so is highly discretionary.
[124] The alleged errors all occurred on December 4, 2014, a Thursday. The transcript of the
proceedings reveals that, if the hearing (including final submissions) did not conclude the
next day, the Board would not be able to resume the hearing as a result of other commitments
until sometime in 2015. For that reason, the Board insisted that the developers call their
reply witnesses that day. The Board did not refuse to allow the developers to call their
witnesses. The developers counsel, however, called only one such witness and opted to call
no further reply evidence in order to use the remaining time that evening to prepare to deliver
final submissions the following morning.
[125] With respect to the Boards decision to limit final submissions to two and one-half hours,
I would point out that the developers were also permitted to file 20 pages of written
submissions (factum, para. 52) and that all of the parties were similarly restricted.
[126] In the circumstances, I can see no procedural unfairness. The developers have not argued
that the reply evidence or longer oral submissions could possibly have affected the Boards
decision. No application to introduce fresh evidence on the leave application has been made
by the developers. Even if there was unfairness, this issue does not merit appellate
intervention, as its importance is limited to the parties.
[127] Turning to the second issue raised, the developers contend that the Board demonstrated
bias in two general ways. First, they submit that the Board demonstrated bias by calling
Marjorie Hall, a district planner for the Ministry of Natural Resources, as a witness. The
developers suggest that, by doing so, the Board improperly sought to question the MNRs
designation of the wetlands in question as not provincially significant, a move which the
developers allege benefitted the other parties.
[128] I do not accept the argument that the Board called Hall for an improper purpose. Nor do
I accept the argument that the Board demonstrated bias in doing so. The excerpt of Halls
evidence appended to the developers factum makes it clear that the Board was not looking to
question the MNRs designation, but was, instead, looking for information that was relevant
to the developers argument that there would be no negative impacts by the loss of coastal
wetlands. The MNR in general, and Hall in particular, had been asked to comment on the
developers application in 2007. At that time, the governing PPS was the 2005 version.
Member Taylor specifically questioned Hall on changes between the 2005 and 2014 PPS and
related documents relevant to the issue of negative impacts. These differences were made
relevant to the Boards task by virtue of the Boards ruling that the most recent PPS applied.

2016 ONSC 6463 (CanLII)

[122] Fortunately, I need do no more than point out the conflicting decisions because I am not
persuaded that any procedural fairness or breach of natural justice occurred.

[129] I also reject the developers argument that the Board member showed bias in intervening
as he did during the evidence of witnesses called by the parties to the hearing. The excerpts
appended to the developers factum all demonstrate that the Board members questions were
put for the purpose of clarifying the witness evidence, which is perfectly proper: Chippewas
of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, at para.
233. It was also to be expected. This was not a hearing dealing with a simple historical
event, like a car crash. It was a hearing dealing with complex issues such as the creation of
fish habitat and the destruction of coastal wetlands. There were many documents in
evidence. There were expert opinions. There were policy statements to be interpreted. And
there were numerous other decision-makers who had been involved in the process before the
Board became involved. In light of all of this, it is not surprising, therefore, that the Board
member would require clarification and there was nothing improper in the questions he asked
for that purpose, in my view.
[130] The test for bias is well-established:
[W]hat would an informed person, viewing the matter realistically,
and practically and having thought the matter through conclude
[?]. Would he think that it is more likely than not that [the
decision-maker], whether consciously or unconsciously, would not
decide fairly[?]: Wewaykum Indian Band v. Canada, [2003] 2
S.C.R. 259, 2003 SCC 45, at para. 60.
[131] In my opinion, none of the improprieties alleged by the developers, even when taken
together, meet this test.
Reasons
[132] Like the arguments relating to procedural fairness, the developers raise two issues
relating to the Boards reasons.
[133] First, they submit that the Board failed to provide reasons for ignoring uncontradicted
evidence of their experts (factum, para. 173). This is not correct. The Board did not ignore
the developers evidence. The Board made extensive reference to the evidence of McConnell
and Wierzbicki on the issues of negative impacts and limited residential developments. It
also provided reasons for rejecting that evidence. With respect to the issue of negative
impacts, as I have explained, the Board rejected an interpretation of that term which would
require it to balance the loss of wetlands against the creation of fish habitat and rejected the
developers evidence that only 40% of the wetlands would be destroyed. With respect to the
issue of limited residential development, the Board rejected the evidence of the developers
experts that a 91-lot subdivision would be limited residential development, even if an average
of only 9 lots per year were developed in the rural area.
[134] In the case of both negative impacts and limited residential developments, the Board
provided reasons for its conclusions.

2016 ONSC 6463 (CanLII)

Page: 27

Page: 28

[136] I agree with the submission made by the PPA that the Board was not required to provide
the guidance sought by the developers in any way other than the way it did. The Board was
required to decide only whether, on the facts before it, there was a negative impact on the
coastal wetlands where a significant portion of those wetlands would be lost and whether the
creation of a 91-lot subdivision was limited residential development in a city that receives
requests to develop only about 100 lots per year. The Board did that and, in my view,
provided adequate reasons for doing so.
[137] As my own reasons in this leave application demonstrate, the reasons of the Board were
sufficient to permit appellate review.
CONCLUSION
[138] I have no doubt that the developers plans for the Pointe Estates subdivision were the
culmination of a long-standing dream. There is also no doubt that there were significant
financial interests at stake. The decisions of the SSMRCA, of Sault Ste. Marie city council,
and then of the Board must have been difficult for the developers to accept. The same is
likely true of my decision.
[139] Be that as it may, none of the many issues raised in this application meet the onerous test
for granting leave to appeal.
[140] Leave to appeal is, therefore, denied.
[141] I would encourage the parties to agree on the issue of costs. However, if they are unable
to agree, written submissions with respect to that issue may be made as follows:
(a) the respondents may make submissions, limited to five typewritten pages,
exclusive of attachments, within 20 days of the date of the release of these
reasons;
(b) the applicants may make submissions, similarly limited, within 20 days of the
receipt of the respondents written submissions; and
(c) the respondents may make any necessary reply, similarly limited in length,
within 10 days of the date of receipt of the applicants written submissions.

Ellies J.
Released: November 28, 2016

2016 ONSC 6463 (CanLII)

[135] The developers also contend that the Boards reasons were deficient in another way.
They argue that the Board failed to provide guidance with respect to the extent to which the
loss of wetlands constitutes a negative impact and the extent to which development must be
curtailed to constitute limited residential development.

ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ELLIES J.
JEFF AVERY, PATRICIA AVERY, and 1704604
ONTARIO LTD.
Applicants (Appellants in Appeal)

and

POINTES PROTECTION ASSOCIATION, THE

CORPORATION OF THE CITY OF SAULT STE.
MARIE, and KLAAS OSWALD
Respondents
REASONS FOR DECISION ON APPLICATION
FOR LEAVE TO APPEAL

Released: November 28, 2016

2016 ONSC 6463 (CanLII)

CITATION: Avery v. Pointes Protection Association, 2016 ONSC 6463

DIVISIONAL COURT FILE NO.: DC
DATE: 2016/11/28