The City of Toronto applied to the court to have a decision of the Ontario Municipal Board (the “Board”) set aside. The Board had determined that a City by-law was illegal. In granting the City’s petition, the court held that the Board had no jurisdiction to determine the legislative competency of a municipality.

Administrative law – Municipal boards – Questions of jurisdiction – Change of by-laws

Toronto City v. Goldlist Properties Inc., [2002] O.J. No. 601, Ontario Superior Court of Justice, February 20, 2002, Blair, Day and Marchand, JJ.

Counsel for the City of Toronto (the “City”) adopted bylaw no. 147-1999 which amended the metropolitan Toronto official plan. The purpose of the amendment was to encourage new rental housing production throughout the newly amalgamated city and to address the demolition or loss of rental units when considering development applications.

Prior to the adoption of the plan, the former cities of Toronto, Etobicoke, North York and the borough of East York all had official plans that dealt with the conversion of rental units into condominiums. The new plan repealed the policies in the former official plan and established a uniform policy throughout the new City of Toronto. Various parties appealed the plan to the Board. Citing the Supreme Court cases of Cuddychicks Limited v. Ontario (Labour Relations Board) (1991), 81 D.L.R. 4th 121 and Douglas Kwantlen Faculty Association v. Douglas College (1990), 77 D.L.R. 4th 94 as authority the Board concluded that it had the jurisdiction to make a finding of the City’s competence to adopt official plans and policies and declare such bylaws illegal and invalid. The Board concluded that the city plan was illegal and refused to approve it. The Board reasoned that if an administrative tribunal can interpret the constitutionality of a law, it can also determine if a law is invalid or illegal. The City applied to the court to have the board’s decision overturned. In allowing the appeal, the Court noted that the City’s competence to adopt official plan policies by bylaw was not a matter within the Board’s jurisdiction. The Board’s jurisdiction was to approve, modify or refuse to approve the official plan amendment based upon the planning principles underlying the Planning Act. There was no statute in place that gave the Board a supervisory jurisdiction over the legislative competency of municipalities. The court held that the Board erred in its interpretation of the law, and assumed indirectly a jurisdiction which it was not entitled to assume directly. The appeal was allowed and the order of the Board was set aside.

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