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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 statute.”

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 Provincial policies.

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 making.

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