At the end of August, the Divisional Court granted the Town of Richmond
Hill's appeal of a decision of the Ontario Municipal Board
(OMB). The OMB approved Richmond Hill's Official Plan policies
that required the conveyance of parkland as a condition of
development, but then directed that the conveyance be subjected to
an overall cap of 25% of the land proposed for development. It was
the 25% cap that the Town appealed.
Justice Nordheimer, in a strongly worded decision on behalf of
the court, concluded
"In my view, the interpretation of s.42(4) [of the Planning
Act], implicitly adopted by the OMB, is unreasonable on the face of
the plain wording of s.42. I say implicitly because the
interpretation is adopted without any visible foundation or
analysis. ...In particular, it reads into the very general language
of s.42(4) a specific authority that appears, on its face, to be
inconsistent with the intent of ss.42(1) and (3). It effectively
abrogates the role that the Legislature clearly intended
municipalities would perform and instead bestows that role onto
itself. And in doing so, the OMB finds authority to establish a
maximum rate [for the conveyance of parkland] that is different
from the maximum provided by the Legislature in the
The court noted at paragraph 48 that the decision was not only
unreasonable on the plain wording of the legislation, but was
inconsistent with the role intended for municipalities. The court
reaffirmed recent jurisprudence that powers given to municipalities
are to be "interpreted broadly and generously within their
context and statutory limits, to achieve the legitimate interests
of the municipality and its inhabitants".
The court did acknowledge that the OMB may have had legitimate
concerns that if the maximum rate for parkland protection was
applied by the Town, it could operate as a disincentive to
high-density residential development. However, the court noted at
paragraph 54 that "no matter how legitimate that concern may
be, it does not operate to alter the plain wording of the
statute." The court went on to describe other options open to
the OMB to address that type of concern, such as imposing
qualifying language on the Town's official plan, or giving
direction that the Town must, by by-law, ensure that implementation
of its policies regarding this issue do not offend or conflict with
There has been a significant amount of criticism of the OMB for
its perceived overreach, among other reasons. As we reported in
early August, the
OMB is now under review. It is rare for an appeal court to have
occasion to address alleged errors of the OMB, given the nature of
the decisions at the OMB and because leave to appeal to the
Divisional Court must be sought and granted before an appeal can be
heard. This decision provides some guidance to the OMB about its
role and mandate and should improve its overall decision
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