Davies Howe Successful at Divisional Court
On November 28, 2019, the Ontario Divisional Court ruled in favour of Amacon Development (City Centre) Corp. (“Amacon”) by dismissing the Regional Municipality of Peel’s (the “Region”) motion for leave to appeal from the June 11, 2019 decision of the Local Planning Appeal Tribunal (the “Tribunal”) that amended the Region’s 2015 Development Charge (“DC”) By-law.
The Tribunal held that the Region’s DC By-law provided for residential DC’s that had the effect of subsidizing the increased needs generated by the non-residential category, in conflict with the Development Charges Act (“DC Act”). Further, the Tribunal found that the appropriate deductions for benefits to existing development (“BTE”) and post-period benefits (“PPB”) had not been made. In its decision, the Tribunal reduced the residential development charge by amending the Region’s DC By-law to reflect appropriate deductions for BTE and PPB and properly allocating costs between the residential and non-residential categories. The amendments were made wholly in accordance with the evidence adduced by Amacon in a well fought victory by Davies Howe.
In pursuing a motion for leave to appeal to the Divisional Court, the Region alleged that the Tribunal had erred in its interpretation of the DC Act, particularly in respect of BTE and the re-allocation of costs between residential and non-residential development, and committed an error in law for failing to provide sufficient reasons for its decision.
In order for a motion for leave to appeal to the Divisional Court to succeed on a question that engages the Tribunal’s special expertise, the Court must be satisfied that:
- The alleged error constitutes a question of law;
- There is good reason to doubt the reasonableness of the Tribunal’s decision on the question of law; and
- The matter is of sufficient importance to warrant the attention of the Divisional Court.
The Divisional Court found that the alleged errors in the Tribunal’s conclusions were not pure questions of law and that the reasons given by the Tribunal, particularly when read in the context of the entire record, were sufficient to avoid reason to doubt the reasonableness of the decision. Accordingly, the Divisional Court dismissed the Region’s motion for leave to appeal.
This decision solidifies Davies Howe’s success for its client at the Tribunal in a closely watched decision by both developers and municipalities.
According to the Region, the result of the decision is that the Region will need to refund approximately $63 million in residential development charges that were paid by developers under the Region’s 2015 DC By-law.
Susan Rosenthal and Mark Flowers of Davies Howe represented Amacon on the motion for leave to appeal at the Divisional Court.
A copy of the Endorsement of Justice H. Sachs, dated November 28, 2019, is found here.