Etobicoke Board of Education et al. v. Highbury Developments Ltd., [1958] SCR 196

Supreme Court of Canada

Etobicoke Board of Education et al. v. Highbury Developments Ltd., [1958] S.C.R. 196

Date: 1958-01-28

The Board of Education for the Township of Etobicoke, The Metropolitan School Board, and The Corporation of the Township of Etobicoke (Plaintiffs) Appellants;

and

Highbury Developments Limited (Defendant) Respondent.

1957: November 20, 21; 1958: January 28.

Present: Kerwin C.J. and Taschereau, Rand, Locke and Cartwright JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Town planning—Powers and discretion of Minister and Municipal Board—Draft plan in conformity with The Planning Act, 1955 (Ont.), c. 61, s. 26(2), duly settled by Minister under s. 26(3)—Details of agreement as to school sites—The Planning Act, s. 26(4), (9).

Although The Planning Act, 1955, gives a very wide discretion to the Minister in respect of granting or withholding approval of a plan, that discretion must be exercised judicially and it is not a judicial exercise of the discretion to impose upon the applicant, as a condition of the giving of approval, an obligation the imposition of which is not authorized by the Act. Subsections (4) and (9) of s. 26 of the Act do not have the effect of giving an unfettered discretion to the Minister (or to the Ontario Municipal Board if the matter is referred to it under s. 29). The provisions of the statute do not permit the Minister or the Board to withhold approval of a draft plan which complies with all the provisions of s. 26(2), and which has been duly settled by the Minister pursuant to s. 26(3), on the sole ground that it is “premature” until the applicant for approval has agreed to sell the school sites shown on the plan to the school board at such price as the latter sees fit to fix. The Township of Markham v. Langstaff Land Development Limited et al., [1957] S.C.R. 336, distinguished.

Per Rand J.: The Planning Act contains no provisions as to compensation to be paid for lands required for municipal purposes, except in the case of roads. This clearly contemplates the use of the procedure elsewhere established to determine compensation by arbitration.

APPEAL from a judgment of the Court of Appeal for Ontario[1] affirming a decision of the Ontario Municipal Board. Appeal dismissed.

J.J. Robinette, Q.C., for the Board of Education of Etobicoke and the Metropolitan School Board, appellants.

D.R. Steele, for the Township of Etobicoke, appellant.

J.D. Arnup, Q.C., for the respondent.

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The judgment of Kerwin C.J. and Taschereau, Locke and Cartwright JJ. was delivered by

CARTWRIGHT J.:—This is an appeal from an order of the Court of Appeal for Ontario[2] made on March 15, 1957, setting aside a decision of the Ontario Municipal Board dated July 18, 1956.

The appeal to the Court of Appeal was brought pursuant to an order of that Court, made under s. 98 of The Ontario Municipal Board Act, R.S.O. 1950, c. 262, granting leave to the respondent to appeal from the decision of the Board on a question of law stated as follows:

As a matter of law did the Ontario Municipal Board err in the construction which it placed on Section 26 of The Planning Act 1955?

The following statement of the relevant facts is taken with some slight modification from the reasons of Aylesworth J.A. who delivered the unanimous judgment of the Court.

The respondent owns substantial parcels of land in the township of Etobicoke. It prepared a draft plan of subdivision of certain of these lands involving a total acreage of slightly less than 200 acres and approximately 700 lots. The usual and normal negotiations consequent upon subdivision were carried on between the respondent, the Township and the Township Board of Education relevant to the provision of municipal services, the location and sizes of school sites, the dedication of highways and various other matters. As a result the respondent agreed to dedicate to the municipality 5 per cent. of its residential lands for public purposes, to install a trunk sewerage system to serve its land and other lands in the township now owned by it at a cost of $250,000, to install on the streets shown on the draft plan various municipal services at a cost of $879,000, and to set aside for school sites on its draft plan precisely the lands agreed upon by the school board, aggregating approximately 25 acres in area (12.77 per cent. of the area of the entire subdivision) and consisting of a high school site of 12.1 acres, a senior public school site of 8.1 acres and a public school site of 4.52 acres. The township council on April 3, 1956, “released” part of the draft plan, that is to say, the approximate easterly half of the lands delineated

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on the plan including all of the school sites; “release” is the term used by the council in its resolution approving of the plan of subdivision, so far as it is concerned, before approval of the Minister is sought. The reason that only part of the plan was so “released” and that therefore part only is involved in the present appeal is that the lands covered by the plan are bisected by the watershed of the Humber River and the respondent had an agreement with the Township for the “release” of all of its residential lands lying within the watershed in consideration of the respondent agreeing to service certain industrial lands in the township at its own expense. The “release” by the council was made subject to certain conditions, of which only the following is relevant:

(1) Subject to the completion of arrangements with the Board of Education for the Township with respect to three sites as shown on the plan.

The board of education for the township and the respondent reached no agreement as to the price to be paid by the board for the aforesaid school sites. Involved in this question of price is the question of allocation of the cost of municipal services on the streets on which the school sites are located, the respondent requesting that, as an element of the value of the land agreed upon as school sites, the board of education pay a pro rata share of the cost of such services and the school board, on its part, taking the position that all the cost of such services should be absorbed by the respondent. In these circumstances, the Minister appears to have indicated that his approval to the draft plan would be conditional upon the respondent and the school board resolving their differences as to the price to be paid for the school sites and thereupon the respondent requested the Minister to refer the matter of approval to the Ontario Municipal Board. Since the provisions of s. 29 of The Planning Act, 1955 (Ont.), c. 61, required the Minister so to refer the matter, the Ontario Municipal Board, pursuant to such reference, heard the application on June 25, 1956. No evidence was taken before the Board for the simple reason that none of the facts were in dispute. Counsel for all the appellants urged the Board to withhold its approval, advancing as the ground for such action by the Board, the respondent’s failure to reach an agreement with the board of education for the township as to the price to be paid for

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the school sites. Specifically they argued that the availability of school facilities for the future inhabitants of the area covered by the plan was a matter affecting “the convenience and welfare” of such inhabitants within the meaning of subs. (4) of s. 26 of The Planning Act, 1955, and, until it was shown that such facilities would be available, a subdivision could be said to be “premature” within the meaning of cl. (b) of the subsection. For the “school facilities” to be available, it was said, the “school sites” must be available and the sites could not be said to be “available” if the school board could not pay for them. Aylesworth J.A.[3] set out as sufficient to illustrate these submissions the two following excerpts from the argument made at the hearing before the Board:

Now, all the Board of Education in this case is asking is that the sub-divider be asked to subsidize to some extent the Board of Education in the acquisition of school sites and, in effect, in the supplying of school facilities. We have not gone into the question of how far apart we were—and I don’t think it is necessary that we do—but, in effect, the Board of Education is asking Highbury Developments to give up a portion of the profit which they will make out of this land once it is subdivided; and, in effect, they are frankly asking to be subsidized in that respect. The Board of Education is not in a position to pay the retail price for that land.

It is recognized that area school boards are required, at the present time, to pay for such school sites. Such payments should be however on an equitable basis of land costs on the assumption that education is an important public service comparable to the recognized responsibility of subdividers to provide other public services, i.e., road, water service, sewers, etc., etc.

That these submissions were acceded to by the Ontario Municipal Board is apparent from the Board’s decision, which reads:

The Board is of the opinion that until the question of the acquisition of the school site [sic] has been settled, the plan is premature and is, therefore, not approved.

The question calling for determination is whether the provisions of the statute permit the Minister or the Board to withhold approval of a draft plan which complies with all the provisions of s. 26(2) of The Planning Act, 1955, as amended, hereinafter referred to as “the Act”, and which has been duly settled by the Minister pursuant to s. 26(3) of the Act, on the sole ground that it is premature until the

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applicant for approval has agreed to sell the school sites shown on the plan to the board of education at such price as the latter sees fit to fix.

The reasons of Aylesworth J.A. make it clear that there is nothing in the Act which expressly gives any such power. It is, however, contended for the appellants that the general words with which s. 26(4) opens:

In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience and welfare of the future inhabitants and to the following:…

when read with s. 26(9):

Upon settlement of the draft plan, the Minister may give his approval thereto, and may in his discretion withdraw his approval or change the conditions of approval at any time prior to his approval of a final plan for registration.

in effect give an unfettered discretion to the Minister or the Board to give or withhold approval. I agree with Aylesworth J.A. that the discretion, wide though it is, must be exercised judicially and that it is not a judicial exercise of discretion to impose upon the applicant, as a condition of the giving of approval, an obligation the imposition of which is not authorized by the Act. I wish to adopt the following passage from the reasons of the learned justice of appeal:[4]

I must conclude that the Ontario Municipal Board is in error in the construction it has placed on s. 26 and that its decision is without legal foundation. I think the error in the decision proceeds from failure to distinguish in the application of the Act between acquisition of school sites, which is not dealt with, and adequacy of school sites, which is, from a misapplication of the term “premature” as applied in the Act to a “proposed subdivision” and to a certain confusion of thought as between the terms, school sites and school facilities, the latter of which also is not within the purview of the Act.

The Act directly affects the common law right of the individual freely to subdivide his lands and sell lots therein and “the law is also well established that common law rights are not held to have been taken away or affected by a statute,… unless it is so expressed in clear language, or must follow by necessary implication, and in such cases only to such an extent as may be necessary to give effect to the intention of the Legislature thus clearly manifested.” Grant J.A. in delivering the unanimous judgment of the Court of Appeal in Re Stronach, 61 O.L.R. 636, at p. 640, 49 C.C.C. 336, [1928] 3 D.L.R. 216. If the Legislature intended, as I think it did not, to compel an owner seeking to subdivide his lands to accept a nominal or any price less than a fair price as established by arbitration, if necessary, for his lands agreed upon as adequate for school sites, then

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it has not said so either expressly or by necessary implication. For this reason also I think the Ontario Municipal Board erred in the construction which it placed on s. 26 of the Act.

Counsel for the appellants referred to the judgment of this Court in The Township of Markham v. Langstaff Land Development Limited et al.[5] in which it was held that the Ontario Municipal Board had jurisdiction to impose the conditions set out in the order made by it in that case; but those conditions related only to the taking of the necessary steps to substitute the name of one Selkirk as applicant in place of the name of a limited company controlled by him. I am unable to find anything in the reasons delivered in that case which assists the argument of the appellants in the case at bar.

I would dismiss the appeal with costs.

RAND J.:—I agree that this appeal should be dismissed with costs. Throughout The Planning Act, 1955 (Ont.), c. 61, there is a conspicuous avoidance of any dealing with the amount of compensation for lands required for municipal purposes except in the case of roadways. That fact by itself in the context of the statute establishes a consideration restrictive of the exercise of discretion by the Minister. It is contemplated that for the taking of land, apart from roadways, the procedure elsewhere provided of a semi-judicial nature to determine compensation will take into account all relevant circumstances. It seemed to be assumed that the compensation for, say, the school site, would be based upon the price at which the surrounding lots would be sold. In that form, the statement fails to take into account what that price might be were no school site reserved. I mention this only to avoid any inference that that question has been given any consideration.

Nor is there considered any analogy between the compensation for a school site and the requirement of such facilities as water, light, sewerage, etc.

Appeal dismissed with costs.

Solicitors for The Board of Education for the Township of Etobicoke, appellant: McCarthy & McCarthy, Toronto.

Solicitor for The Metropolitan School Board, appellant: C. Frank Moore, Toronto.

Solicitors for the Corporation of The Township of Etobicoke, appellant: McMaster, Steele, Willoughby, McKinnon & MacKenzie, Toronto.

Solicitors for the respondent: Taylor, Joy, Baker & Lawson, Toronto.