COURT OF APPEAL FOR ONTARIO
CITATION: Gilmor v. Nottawasaga Valley Conservation Authority,
2017 ONCA 414
DATE: 20170523
DOCKET: C61786
Doherty, Brown and Huscroft JJ.A.
BETWEEN
Alex Gilmor and Tania Gilmor
Appellants (Respondents)
and
Nottawasaga Valley Conservation Authority
Respondent (Appellant)
The Township of Amaranth
Third Party (Respondent)
Alex Gilmor and Tania Gilmor, in person
J. Thomas Curry and Andrew M. Porter, for the intervener, Conservation Ontario
John A. Olah, for the appellant, Nottwasaga Valley Conservation Authority
Sara Blake and Jeremy Glick, for the intervener, Minister of Natural Resources
David N. Germain, for the respondent, The Township of Amaranth
Jeremy Opolsky and J. Toshach Weyman, Amicus Curiae
Heard: December 20, 2016
On appeal from the order of Justice Emile R. Kruzick, Justice Paul M. Perell and Justice Sean F. Dunphy of the Divisional Court, dated September 9 2015, with reasons reported at 2015 ONSC 5327, 339 O.A.C. 159.
Huscroft J.A.:
[1] Building a home involves much more than a blueprint and building materials. It requires negotiation of approval processes involving regulatory bodies operating under a range of provincial legislation, regulations and municipal bylaws.
[2] Alex and Tania Gilmor (“the respondents”) purchased a lot in 2009. They decided to build their home without first obtaining any of the required approvals. This decision has resulted in years of litigation and a home that remains unfinished.
[3] Part of their lot is on a floodplain – “hazardous land” within the meaning of the Conservation Authorities Act, R.S.O. 1990, c. C.27 (“CAA”), so-called because it is “land that could be unsafe for development”, among other things because of flooding (s. 28(25)). The land is subject to the control of the Nottawasaga Valley Conservation Authority (“the NVCA”).
[4] The NVCA denied the respondents’ application for approval to build in 2011. The respondents appealed the NVCA’s decision to the Mining and Lands Commissioner, who conducted a hearing de novo in 2013. The Commissioner found that the respondents’ proposed development was neither appropriate nor safe and denied approval.
[5] The respondents appealed the Commissioner’s decision to the Divisional Court. The Divisional Court allowed their appeal and directed the approval of their proposed development by the NVCA without conditions.
[6] The NVCA appeals to this court. Amicus curiae was appointed to ensure that the position of the self-represented respondents was properly advanced. The Minister of Natural Resources and Forestry and Conservation Ontario intervene with leave of the court.
[7] In my view, the Divisional Court erred in overturning the Commissioner’s decision. I would allow the appeal and restore the Commissioner’s decision for the reasons that follow.
[8] The CAA, which governs natural resource management, sets out a procedure for the establishment of conservation authorities across the province, including the NVCA. Conservation authorities have jurisdiction over areas that include a watershed – defined as an area drained by a river and its tributaries – and in particular over the “control of flooding”. Section 20(1) of the CAA sets out the objects of authorities, which include conservation, restoration, development and management of the watershed. Section 21(1) provides that authorities have the power:
(j) to control the flow of surface waters in order to prevent floods or pollution or to reduce the adverse effects thereof;
In addition, s. 28(1) empowers authorities to make regulations:
(c) prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development.
(3) A regulation made under clause (1) (b) or (c) may provide for permission to be granted subject to conditions and for the cancellation of the permission if conditions are not met.
[9] Regulations made under s. 28(1) must comply with O. Reg. 97/04, which prescribes the content of conservation authority regulations and specifically requires that they prohibit development in or on hazardous lands, wetlands, and river or stream valleys, whether or not they contain an apparent watercourse. Section 3 of that regulation provides as follows:
3. Subject to section 4, a regulation shall prohibit development in or on,
(a) hazardous lands;
…
(d) river or stream valleys that have depressional features associated with a river or stream, whether or not they contain a watercourse, the limits of which are determined in accordance with the following rules:
[10] Section 4 mandates that regulations under s. 28(1) allow the authority to grant permission to develop in or on an area prohibited by s. 3:
4. (1) A regulation shall provide that the authority may grant permission for development in or on the areas referred to in section 3, or in other areas where the Minister is of the opinion that the authority’s permission for development should be required, if, in the authority’s opinion, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land will not be affected by the development.
[11] The NVCA made O. Reg. 172/06, entitled Nottawasaga Valley Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses. The regulation was approved by the Minister pursuant to s. 28(5) of the CAA, which requires the Minister to be satisfied that “development should be prohibited or regulated or should require the permission of the authority”.
[12] Sections 2 and 3 of O. Reg. 172/06 give effect to the requirements of O. Reg. 97/04 as follows:
2. (1) Subject to section 3, no person shall undertake development or permit another person to undertake development in or on the areas within the jurisdiction of the Authority that are,
…
(b) river or stream valleys that have depressional features associated with a river or stream, whether or not they contain a watercourse, the limits of which are determined in accordance with the following rules…
(c) hazardous lands
…
3. (1) The Authority may grant permission for development in or on the areas described in subsection 2(1) if, in its opinion, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land will not be affected by the development.
[13] The NVCA listed several reasons for denying the respondents’ application for permission to build: the location was within a floodway; the proposed development did not comply with the NVCA’s Planning and Regulation Guidelines; the proposed development was contrary to Natural Hazard policies of the Provincial Policy Statement 2005 (“PPS”); the issuance of a permit would set a negative precedent; and the proposed development would have a cumulative impact by filling in the floodplain, with negative impacts on flood control and conservation of land.
[14] The Commissioner held a four-day de novo hearing, which included cross-examination of expert witnesses and a visit to the proposed development site.
[15] The Commissioner issued a 58-page decision. The decision is not easy to follow. I summarize the findings on the five issues the Commissioner identified as relevant to her decision below.
[16] The Commissioner found that two policy documents – the NVCA Planning and Regulation Guidelines, and the NVCA Development Review Guidelines – were relevant considerations, along with two provincial documents – the PPS and the Ministry of Natural Resources Technical Guide.
[17] The Commissioner found that development within wetlands or areas that could interfere with the hydrologic function of a wetland is prohibited by s. 2(1) of O. Reg. 172/06, subject to the NVCA’s discretion to grant permission to develop under s. 3. The proposed development site is within a floodway, and the burden was on the respondents to convince the Commissioner to exercise her discretion to permit the proposed development.
[18] The Commissioner found, further, that crossing wetland or hazardous land to secure access to a building was not in the best interests of the land, and was not appropriate. Building the house at the rear of the property, off the floodplain, was not an acceptable alternative.
[19] The Commissioner found that O. Reg. 172/06 generally opposes development within any hazard area, but noted that it does not outline the reasons why, such as the potential danger to anyone living there. The NVCA guidelines describe the prevention of “loss of life and property due to flooding” as a “principal mandate”. The Commissioner acknowledged that a different view had been taken in Junker v. Grand River Conservation Authority, C.A. 83/91 (Ont. Mining and Lands Commissioner), but considered that sufficient evidence existed to support the authority’s responsibility to prevent loss of life and property. This included the development of Flood Warning Systems, the purchase of floodplain lands, the management of floodplains and waterways, and projects to control both flooding and erosion. The Commissioner adopted the NVCA’s stated goal of ensuring safe access and egress to a development site.
[20] The Commissioner broke the suitability issue down into four sub-issues.
i. Location of the site within the floodplain and effect on the Natural Heritage System. The Commissioner found that the proposed development site was located on the edge of a regulated floodway within a backwater, where a reservoir or pooling effect would occur in the event of a flood. Flooding to a depth of approximately one metre could be expected during the benchmark Timmins storm, and the backwater effect would lower the velocity of the water. The Commissioner accepted that impact on the wetlands would be limited and was not a reason to deny permission for development, as long as protection against incursion into the wetland was provided.
ii. Conformity to floodplain planning. The Commissioner reiterated that development within areas under the NVCA’s jurisdiction was not to occur unless it was permitted in accordance with the discretionary terms of the regulation. The Commissioner found the respondents’ proposal would not aggravate flooding in the area to any great degree and that hydraulic impact would probably be minimized. However, any new residential construction could increase the hazard in the area.
iii. Safe access and egress. The Commissioner applied flooding depth figures suggested by the Ontario Ministry of Natural Resources Technical Guide, which were also used by the NVCA, in determining the potential depth of flood waters on the proposed development site during a Timmins storm. The Commissioner found that the respondents’ application met safe access and egress standards in some, but not all, of the required areas. The Commissioner found that there was a clear failure to meet one of the most important guidelines, access for a family vehicle, and that the standard for younger children (under six to ten years of age) was not met. The Commissioner added that there was also a risk to emergency workers and a cost to the public.
iv. The use of balanced “cut and fill”. The Commissioner was not persuaded that the creation of a raised driveway and walkway to the house using a “cut and fill” method would solve the problem. In any event, the Commissioner noted that the cut and fill technique was normally used at the edges of a floodplain, rather than for a single development within a floodplain. The Commissioner stated that the cut and fill technique should be used sparingly because it could lead to an untold number of applications to develop in a floodplain or floodway resulting in a cumulative impact on flood control.
[21] The Commissioner summarized the suitability considerations as follows:
The Tribunal finds that the appellant has not satisfied its concerns over technical matters, especially concerning safety issues. In addition, the tribunal is of the opinion that the application shows little concern for the issues surrounding natural hazards and the natural heritage which are outlined in both the NVCA’s Regulations and the guidelines provided by the PPS, especially from a safety point of view.
[22] The Commissioner found that the potential cumulative effect from development on the respondents’ site would not have much impact, but reiterated her concern about setting a precedent that might encourage others to propose development in floodplains or floodways.
[23] The Commissioner dismissed the respondents’ appeal, but in doing so noted that some aspects of proposed development could be revisited by the NVCA:
The tribunal … noted that at least four to five issues require further study or at least in depth discussions between the parties, all of which relate to technical issues. They are questions the tribunal cannot answer due to lack of clear evidence and as a result, any decision with regard to them would be questionable. Whether the NVCA is prepared to renew discussions of the issues, will be left for them to decide. As was noted, it is not just technical issues that should sway the tribunal. The floodway has a purpose in the “conservation of land” category and needs to be maintained to do its job.
In the final analysis, the tribunal has decided that the development in the floodway is inappropriate at this time. The risk to the homeowner, both from a standpoint of safety and property damage, as well as the subsequent cost to the taxpayer if the Timmins situation or any other flood occurs, must be acknowledged and is found to be unacceptable.
Based on the evidence and the reasons outlined, the tribunal does not find the application to be appropriate or justified especially from a safety point of view and, also from the need to maintain the natural floodway. The application cannot be considered unique from an environmental standpoint. The tribunal finds that the PPS will take precedence along with the mandate of the Conservation Authorities Act and the subsequent Regulation. Therefore, the tribunal will order that this appeal will be dismissed.
[24] The respondents appealed the Commissioner’s decision to the Divisional Court under s. 133 of the Mining Act, R.S.O. 1990, c. M.14. Section 133 does not address the nature or scope of an appeal. It provides simply that “an appeal lies to the Divisional Court from any decision of the Commissioner”.
[25] The Divisional Court noted that the proceeding was “in the nature of an appeal and not purely a matter of judicial review”, but did not develop the distinction. The court acknowledged that reasonableness is normally the standard of review applied to questions of law involving the interpretation of a tribunal’s home statute, but held that the correctness standard applied in this case for two reasons.
[26] First, the court characterized the question before the Commissioner as a matter of general importance to the legal system that was beyond the Commissioner’s expertise, citing a prior Divisional Court decision, 3437400 Canada Inc. v. Niagara Peninsula Conservation Authority, 2012 ONSC 1503, 354 D.L.R. (4th) 756 (Div. Ct.).
[27] Second, the court stated that the Commissioner’s reliance on safety considerations in rejecting the appellant’s application “amounted to a positive assertion of jurisdiction to scrutinize applications on the basis of safety”, which overlapped with municipal authority to administer the Building Code Act, 1992, S.O. 1992, c. 23 (“BCA”) and possibly the Planning Act, R.S.O. 1990, c. P.13, under which the PPS was published.
[28] The court distinguished this court’s decision in Ontario (Ministry of Transportation) v. 1520658 Ontario Inc., 2011 ONCA 373, 105 O.R. (3d) 321, which applied a reasonableness standard to an appeal under s. 133 of the Mining Act, on the basis that there is no privative clause in the CAA and because this case involves a conflict between private and public interests, as opposed to a conflict between competing uses of Crown lands.
[29] The court then applied a correctness test to the Commissioner’s decision. In essence, the court held that the Commissioner erred by proceeding from an incorrect interpretation of its governing regulation, because neither the CAA nor the NVCA presumptively prohibit development on the respondents’ land. The court interpreted s. 3 of O. Reg. 172/06 as establishing not an exception to a general prohibition on development but, instead, a condition precedent to prohibition. As the court put it, “only developments that affect the control of flooding … may be prohibited, regulated or subject to a requirement for prior permission.” [Emphasis in original.]
[30] The Divisional Court concluded, further, that although safety issues could be considered, safety could not be elevated to a stand-alone head of jurisdiction for purposes of regulating flood control.
[31] Although the court acknowledged that the cumulative impact of development may be a relevant consideration, it could not be used as a catch-all objection without having first established a reasonable foundation for the conclusion. The court characterized the cumulative impact as a “minor theoretical impact” that did not satisfy the threshold criterion of actual impact on flood control:
By restricting developments with an impact on control of flooding, neither s. 3 of the NVCA Regulation nor s. 28(1)(c) of the CAA can reasonably be construed as subjecting developments to control with only the most trivial or hypothetical of impacts. The inquiry is not akin to studying the impact of fluttering butterfly wings in Mongolia on flooding in Amaranth Township. Flood control impacts, if they were to be found, require evidence and a foundation that satisfies standards of reasonableness and materiality. I do not read the reasons of the Tribunal as suggesting any findings reaching that level of concern over “cumulative impact” nor would the evidentiary record before it reasonably permit such a finding.
[32] The court set aside the Commissioner’s decision and considered the question of flood control itself, rather than remit the matter to the Commissioner. The court concluded that the respondents’ proposed development would have no impact on flood control and granted the permission sought under s. 3 of O. Reg. 172/06.
[33] Two issues must be resolved on this appeal. First, what is the appropriate standard of review on an appeal from the Commissioner’s decision? Second, how does that standard of review apply to the Commissioner’s decision?
[34] The appellants and interveners submit that the Commissioner’s decision is subject to review on the reasonableness standard. Amicus and the respondents seek to defend the Divisional Court’s decision that the correctness standard applies.
[35] In my view, the Divisional Court erred in applying a correctness standard to the Commissioner’s decision. As I will explain, the reasonableness standard applies.
[36] Following the decision of the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, it is well established that there are only two standards of review – correctness and reasonableness – and a standard of review analysis is not always required in order to determine which standard applies. In a series of cases, the court has established that the reasonableness standard applies presumptively when a tribunal is interpreting its home statute or statutes that are closely related to its function: Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 22; Mouvement laďque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 55; and McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 21. Correctness review is confined to a narrow range of cases in which the presumption of reasonableness review is rebutted.
[37] The Mining and Lands Commissioner is a somewhat unusual tribunal in that it exercises authority under several statutes in addition to the CAA, including the Mining Act, the Oil, Gas and Salt Resources Act, R.S.O. 1990, c. P.12, the Aggregate Resources Act, R.S.O. 1990, c. A.8, the Lakes and Rivers Improvement Act, R.S.O. 1990, c. L.3, and the Assessment Act, R.S.O. 1990, c. A.31. The Commissioner is not constituted by the CAA – the Commissioner is a creature of the Ministry of Natural Resources Act, R.S.O. 1990, c. M.31 – but the Commissioner is no less entitled to deference in interpreting and applying the CAA on that account. The institutional expertise of a tribunal performing duties under a particular statute does not depend on the tribunal’s constitution under that statute, nor is it diminished by a legislative decision to assign decision making authority to that tribunal over additional statutes, whether or not those statutes serve related purposes.
[38] The Commissioner has, since 1982, exercised the Minister of Natural Resources’ power to hear CAA appeals pursuant to a formal delegation of the Minister’s authority.[1] No other administrative tribunal has appellate decision-making authority under the CAA. In my view, the CAA (and associated regulations) may be regarded as one of the Commissioner’s several “home acts”. As a result, the reasonableness standard applies presumptively to appeals from the Commissioner’s decisions interpreting it. I note that this accords with this court’s recent approach to an appeal from a decision of the Commissioner under the Mining Act: 2274659 Ontario Inc. v. Canada Chrome Corporation, 2016 ONCA 145, 394 D.L.R. (4th) 471, leave to appeal refused, [2016] S.C.C.A. No. 172, at para. 44.
[39] The Commissioner has considerable institutional expertise when it comes to interpreting and applying the CAA, and relative expertise compared to the court in any event. The mere existence of a right of appeal from the Commissioner’s decision does not rebut the presumption that reasonableness review applies in this case: Edmonton East, at paras. 27-29.
[40] Dunsmuir limits correctness review to four categories of questions: constitutional questions; jurisdictional questions; questions of general law both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise; and questions concerning the jurisdictional lines between two or more competing specialized tribunals. When a tribunal is required to decide one of these questions, the presumption of reasonableness review is rebutted: Dunsmuir, at paras. 58-61.
[41] The question raised in this case is whether either of the latter two exceptions applies: whether a general question of law of central importance is raised or whether jurisdictional lines between two or more competing tribunals must be determined.
[42] In order for correctness review to apply, a question of law must be not only a general question of central importance to the legal system as a whole, but also a question that is beyond the tribunal’s specialized expertise. It cannot be said that the Commissioner’s interpretation of the CAA and regulations is such a question.
[43] Amicus did not seek to defend the Divisional Court’s decision on the standard of review on this basis, and in my view properly so. The questions of law arising in this case are not general in nature; they concern the interpretation of specialized legislation and regulations governing flooding and development. Although the answers to these questions are important to the parties, they have no impact beyond the specialized administrative regime in which they arise: see e.g., Canadian National Railway Co., at para. 60. Nor are the answers to these questions beyond the Commissioner’s expertise in any event.
[44] In short, the questions of law arising in this case do not demand “uniform and consistent answers” that only correctness review can provide: Dunsmuir, at para. 60. The presumption of reasonableness review is not rebutted on this basis.
[45] There is no doubt that the regulatory regime governing land use and development in Ontario is complicated and that several levels of approval are required. But correctness review does not apply on that account. Correctness review is required only if it is necessary to determine jurisdictional lines between competing specialized tribunals.
[46] Amicus submits that municipalities and the Ontario Municipal Board have exclusive jurisdiction concerning the application of the PPS, which deals with the safety of access and egress in the event of a flood. Amicus concedes that public safety “is not unrelated” to the NVCA’s “control of flooding” mandate, and that the NVCA “could be expected to give it some regard”. But amicus suggests that conservation authorities (and the Commissioner) are usurping municipalities’ decision-making authority concerning public safety.
[47] This submission must be rejected.
[48] Questions concerning jurisdictional lines between specialized tribunals must be approached carefully, lest the presumption of reasonableness review be rebutted too easily and a key rationale underlying the presumption – that some decisions are better made by specialized administrative tribunals than the courts – be subverted.
[49] The decision impugned in this case arises out of an application to build a home on hazardous land – a floodplain under the jurisdiction of the NVCA at first instance and the Commissioner on appeal. Although the BCA regulation specifically adverts to construction standards for buildings constructed on floodplains, neither the regulation nor the BCA purport to authorize development on floodplains. They simply establish the relevant construction standards in the event that development on a floodplain is permitted. Not only do the BCA and its regulation not authorize development on floodplain; the ability to issue a building permit is, pursuant to s. 8(2) of the BCA, subject to compliance with any other applicable law, which is defined in the regulation as including the CAA.
[50] The Divisional Court erred in concluding that the Commissioner’s authority overlapped with authority under the BCA and that correctness review applied as a result. I agree with the appellant and interveners that the court wrongly conflated whether development may occur within a floodplain – a question within the purview of the Commissioner – with how development in a floodplain must occur for purposes of the BCA, assuming that it is permitted.
[51] The NVCA is required to act in a manner consistent with the PPS in exercising any authority that affects a planning matter: Planning Act, s. 3(5). Among other things, the PPS specifically requires that “[d]evelopment shall be directed away from areas of natural or human-made hazards where there is an unacceptable risk to public health or safety or of property damage” (s. 3.0).
[52] Contrary to the submission of amicus, conservation authorities do not usurp municipal authority by acting in accordance with the PPS. Although there is overlapping regulatory authority concerning development, there is no conflict that requires judicial intervention to demarcate jurisdictional lines between tribunals – no problem that gives rise to the need for correctness review. The NVCA, and Commissioner on appeal, are the only bodies with development approval authority under the CAA and the regulations.
[53] The reasonableness of the Commissioner’s decision depends on the answer to two specific questions. First, was the Commissioner’s interpretation of ss. 2 and 3 of O. Reg. 172/06 reasonable? Second, was the Commissioner’s exercise of discretion under s. 3 reasonable?
[54] The Commissioner had to determine whether the respondents were entitled to build a home on their land which, as noted above, is partly on a floodplain – “hazardous land” within the meaning of the CAA. The starting point was the NVCA’s mandate under the CAA and its regulations.
[55] Section 28 (1)(c) of the CAA authorized the NVCA to make a regulation prohibiting development, and O. Reg. 97/04 specifically required that the regulation prohibit development in or on hazardous lands, wetlands, and river or stream valleys. This is the provenance of O. Reg. 172/06, and I set out the key sections again for convenience:
2. (1) Subject to section 3, no person shall undertake development or permit another person to undertake development in or on the areas within the jurisdiction of the Authority …
3. (1) The Authority may grant permission for development in or on the areas described in subsection 2 (1) if, in its opinion, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land will not be affected by the development.
[56] The Commissioner interpreted s. 2(1) as prohibiting development within the floodplain, with the burden on the respondents to convince the Commissioner to permit their development pursuant to the exercise of the discretion under s. 3(1). The Commissioner refused to exercise the discretionary power under the regulation to permit the proposed development.
[57] As the Supreme Court explained in Dunsmuir, at para. 47, reasonableness is a deferential standard of review that is appropriate because of the nature of the questions that come before administrative tribunals:
[C]ertain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[58] I have no doubt that the Commissioner’s interpretation of O. Reg. 172/06 is reasonable. It accords with the plain meaning of the relevant sections.
[59] The Divisional Court’s interpretation – that s. 3 is a condition precedent to the operation of the prohibition in s. 2 – is counterintuitive given the structure of the regulation. Moreover, it appears to overlook O. Reg. 97/04, which specifically requires the NVCA regulation to prohibit development.
[60] In my view, this is not an interpretation that the regulation can reasonably bear. But even assuming that it was within the range of interpretations that the Commissioner could have adopted, the bottom line is that the Commissioner was not required to adopt the Divisional Court’s interpretation, and chose not to do so. In conducting reasonableness review, it is of no moment whether a court considers its interpretation of the law superior to the one adopted by the tribunal whose decision is being reviewed. Unreasonableness connotes more than mere disagreement – more than a preference for an alternative interpretation. An unreasonable interpretation of the law is one that is outside of the range of interpretations the tribunal could have adopted.
[61] It simply cannot be said that the Commissioner’s interpretation of O. Reg. 172/06 is unreasonable in this sense. On the contrary, the Commissioner’s interpretation is tenable given the wording of the regulation and the requirements of O. Reg. 97/04, and the Commissioner was entitled to adopt it. To the extent that the Divisional Court’s decision in 3437400 holds otherwise, it should not be followed.
[62] Having established that the respondents’ proposed development was prohibited by s. 2 of the regulation unless the Commissioner exercised her discretion to permit it under s. 3, the Commissioner had to exercise the discretion under s. 3 reasonably.
[63] That discretion is cast broadly. It establishes that permission for development may be granted by the NVCA, or Commissioner on appeal, if in its opinion the control of flooding will not be affected.
[64] The Commissioner found that “the development site is on the edge of the floodway and that as a result, this issue of the actual location is not one that would cause a refusal to grant the application.” Furthermore, the Commissioner found that the respondents’ proposal “would not aggravate the flooding conditions to any great degree”; and that because the site was in a backwater area, “hydraulic impacts would probably be minimized”. In short, the proposed development would neither cause nor exacerbate such flooding as might otherwise occur.
[65] It did not follow, however, that the respondents were entitled to have the discretion to permit development exercised in their favour.
[66] Discretionary authority must be understood in the context of the regulation that establishes it and the purposes that underlie it. The difficulty in this case is that the legislative scheme is not explicit concerning the relevance of those purposes, and in particular safety considerations.
[67] On one hand, the NVCA regulations prohibit development in the floodplain, as they were required to do, which can be understood as an approach to the “control of flooding”. Safety considerations clearly inform the prohibition: as noted above, s. 28(25) of the CAA defines “hazardous lands” – lands subject to the prohibition – as “lands that could be unsafe for development because of naturally occurring processes associated with flooding”. On the other hand, development on hazardous lands may be permitted in the floodplain pursuant to the exercise of discretion under s. 3 of the regulation, if, in the opinion of the authority or the Commissioner, “the control of flooding… will not be affected by the development”. Safety is not listed as a relevant consideration, but nor are any other considerations that may be relevant to the control of flooding.
[68] The Commissioner acknowledged as much, noting: “The reasons why development is not supported, such as the potential danger to anyone living there, are not outlined as such in the Regulation.” Nevertheless, the Commissioner asserted that the discretionary power to permit development “indicates concern regarding any development in the floodway which might damage people and property. If they were not potential problems, there would be no need for the Regulation.”
[69] The appellant and interveners submit that the discretion under s. 3 may be exercised on the basis of safety concerns. The Minister of Natural Resources describes the protection of public safety and the reduction in public cost of disaster relief as key purposes of the CAA, and proper factors to be considered in the exercise of the discretion under s. 3. Conservation Ontario submits that the Commissioner’s decision was consistent with the approach “overwhelmingly applied by that Tribunal in similar cases”, as well as the approach shared by conservation authorities across the province.
[70] The Divisional Court did not deny that safety was a relevant consideration; however, the court insisted that safety could not be elevated to a stand-alone head of jurisdiction in the control of flooding. Amicus took a similar position.
[71] The discretionary power to permit development in the floodplain is amenable to narrow and broad interpretations. The Divisional Court understood the term “control of flooding” in a narrow, literal sense, as limited to controlling the flow of surface waters. On this approach, the NVCA could enhance public safety only indirectly, “by performing its mandate and gaining greater knowledge of floods and the means of controlling or mitigating them” (para. 64).
[72] The appellant and interveners urge a broader approach, in which the control of flooding is understood as embracing a wide range of considerations, including public safety.
[73] In my view, it was open to the Commissioner to take safety considerations into account in determining whether to exercise the discretion under s. 3 to permit development on the floodplain. The prohibition on development in s. 2 of the regulation – common to the regulations of conservation authorities across the province – reflects a strategy of directing development away from floodplains. Given the history of flooding in Ontario, it is reasonable to conclude that the reasons for the prohibition include public safety as well as conservation considerations.
[74] Although the Commissioner in Junker rejected the relevance of safety considerations, the Commissioner in this case noted that Junker has not been followed. In any event, the Commissioner was not bound to follow that decision, and amicus made no submissions to the contrary.
[75] As to the Commissioner’s findings on safety, the difference in perspective between the Commissioner and the Divisional Court is striking. The Commissioner found the risk posed by a flood on the site of the proposed development was great: “The question comes to mind as to why anyone would knowingly take on that kind of risk to their lives” (p. 55). In contrast, the Divisional Court found that the Commissioner used safety as a “pretext” to apply a policy preference prohibiting development, and that the Commissioner unreasonably overstated the risk to safety in any event: “The risk of a dangerous flood that genuinely posed a safety risk did not exist” (para. 67).
[76] The Commissioner’s decision on flood safety, and in particular the ability of people to enter and exit development areas, was informed by consideration of the PPS, which clearly expresses provincial policy of directing development away from hazardous lands, and by standards set out in the Ministry of Natural Resources and Forestry’s Technical Guide and the NVCA policies. The Commissioner did not fetter her discretion in taking these policies and standards into account, nor is there any basis for concluding that the Commissioner invoked safety considerations as a pretext for applying a policy preference for a blanket ban on development. The prohibition of development in the floodplain arose by operation of the regulation, not by the exercise of the Commissioner’s policy preference. There is no basis for the respondents’ submissions, made at the hearing of this appeal, alleging corruption and misconduct on the part of the NVCA.
[77] It might be thought that the Commissioner took a fairly strict approach to public safety, denying approval even though the proposed development met some of the flood safety guidelines. Certainly, the Divisional Court thought so. The court asserted that the proposed development “posed no meaningful threat to safety” and that safety was “elevated out of all proportion to a reasonable assessment of it”. The court went so far as to minimize the very concept of risk, adding that “elimination of all risk in all endeavours is neither possible nor desirable”.
[78] With respect, the court erred in doing so. The court’s task in conducting reasonableness review is not to weigh the evidence, reach its own judgment, and then use that judgment as a benchmark for assessing the reasonableness of the Commissioner’s decision.
[79] The Commissioner was charged with the responsibility of making the discretionary decision whether to permit development on the floodplain, not the court. The evidence established that, in the event of a Timmins storm, the proposed development would be cut-off from the road by a pool of slow moving water, rising to a depth of approximately 0.8 metres. These were the circumstances in which the Commissioner exercised her discretion not to permit the proposed development. It may be that, as the Divisional Court noted, a Timmins storm is unlikely to occur, but it cannot be said that the Commissioner’s concerns about access to and egress from the site in the event of such a storm were unreasonable.
[80] Finally, although the Commissioner’s decision is not as clear as it could be, safety considerations were not the only thing that informed the Commissioner’s exercise of discretion.
[81] The Commissioner referred to considerations relevant to whether the proposed development was “appropriate” throughout the decision. For example, the Commissioner expressed the concern that no precedent be set that might encourage others to propose developments in floodplains (pp. 55-56). Under the heading “Conclusions”, the Commissioner stated “it is not just technical issues that should sway the tribunal. The floodway has a purpose in the ‘conservation of land’ category and needs to be maintained to do its job” (p. 57). The Commissioner ultimately cited two bases for her decision, safety and the need to maintain the natural floodway:
Based on the evidence and the reasons outlined, the tribunal does not find the application to be appropriate or justified especially from a safety point of view and, also from the need to maintain the natural floodway.
[82] In all of the circumstances, the decision of the Commissioner is in my view reasonable and must be upheld.
[83] I would allow the appeal and reinstate the Commissioner’s decision.
[84] The NVCA is entitled to its costs in this court and the Divisional Court and may make written submissions to the court within 15 days of this decision. The Respondents will have a further 10 days in which to file their submissions.
[85] The interveners are responsible for their own costs.
Released: “D.D.” “May 23, 2017”
“Grant Huscroft J.A.”
“I agree. Doherty J.A.”
“I agree. David Brown J.A.”
[1] Ministry of Natural Resources Act, O. Reg. 795; O. Reg. 571/00; and O. Reg. 364/82.