



COURT OF APPEAL FOR ONTARIO

CITATION: Najjar v. Brombow Developments Limited, 2015 ONCA
    383

DATE: 20150528

DOCKET:  C59642

Juriansz, MacFarland and Lauwers JJ.A.

BETWEEN

Larry Najjar

Moving Party

(Appellant)

and

Brombow Developments Limited and The Municipality
    of Chatham-Kent

Respondents (Respondents)

Larry Najjar, acting in person

John Norton and Daniel Byskal, for the respondent, The Municipality
    of Chatham-Kent

Alan Patton, for the respondent, Brombow Developments Limited

Heard:  April 23, 2015

On appeal from the order of Justice Joseph M.W. Donohue of the Superior
    Court of Justice, dated October 21, 2014.

Lauwers J.A:

Background

[1]

The underlying dispute on this appeal concerns reasonable
    public access to a woodlot.

[2]

Paxtons Bush is a 21-acre woodlot in
Chatham-Kent.
    It is
bisected into north and south halves by a drainage ditch
    known as the Brown Drain. Both halves of Paxtons Bush are owned by the

Municipality of Chatham-Kent. Public access to the north
    half across the Brown Drain requires the construction of a culvert across the
    Brown Drain.

[3]

Brombow Developments Limited conveyed the north
    half of the Bush to the Municipality but still owns the adjoining land. Brombow
    owns the land on either side of the drainage corridor but refuses to give the
    Municipality construction access to the Brown Drain across its land. While
    access through the south half of Paxtons Bush for the necessary heavy construction
    equipment is physically possible, it would result in the destruction of too
    many trees.

[4]

The appellant asserts that in refusing access,
    Brombow is breaching specific language in a Settlement Agreement between the
    Municipality and Browmbow, reached during proceedings before the Ontario
    Municipal Board under which it agrees to cooperate with Chatham-Kent and a
    chosen service club or community agency which may wish to establish Open
    Space/Trail Way linkages prior to development of the balance of the Brombow
    lands.

[5]

The appellant brought a motion under s. 86 of
    the
Ontario Municipal Board Act
, R.S.O. 1990, c. O.28 (
OMB Act
),
to enforce the terms
    of a Settlement Agreement between Brombow and the Municipality of Chatham-Kent.
    The appellant asks this court to reverse the motion judges dismissal of the
    motion.

[6]

For the reasons set out below, I would dismiss
    the appeal.

The Context of the OMB Hearing

[7]

Brombow sought the OMBs approval under the
Planning
    Act
, R.S.O. 1990, c. P.13, for its development plans for a large farm
    property that included the north half of Paxton Bush.  At the commencement of
    the OMB hearing to assess Brombows application, Brombow and the Municipality announced
    they had come to a settlement, and would together be seeking the OMBs approval
    of the implementing planning documents.

[8]

Under the Settlement Agreement, Brombow received
    certain development permissions from the Municipality, and was to convey the
    north part of a forested area known as Paxtons Bush, which was about 11 acres
    in size, to the Municipality.

[9]

At the hearing, the OMB Vice-Chair considered
    the evidence, including the expert planning evidence from Brombow and the
    Municipality. He issued an oral decision on November 2, 2010, which was
    formalized on November 19, 2010 into a memorandum of oral decision.  The
    Vice-Chair accepted the expert planning opinion, that:

(a)     OPA [Official Plan Amendment] 16 represents good planning,
    is consistent with the Provincial Policy Statement and is consistent with the
    planning approach taken by the Municipality elsewhere in its settlement area;

(b)     The ZBA [Zoning By-law Amendment] conforms to and implements
    OPA 16; and

(c)     The Draft Plan had regard for the matters enunciated in
    subsection 51(24)(a) to and including (m) of the
Planning Act
.

[10]

As is the OMBs practice, the Vice-Chair withheld
    his order approving these planning documents pending confirmation from the
    Municipality that the conveyance of land from Brombow to the Municipality as
    set out in the Settlement Agreement has been registered on title to the lands
    in question. The OMBs final order giving effect to its approvals was issued
    on February 9, 2011. The preamble notes that the Board has received the
    required confirmation that conveyance of the lands is required by the Settlement
    Agreement has been completed.

[11]

Paragraph 15 of the Settlement Agreement
    provides:

The lands located on either side of the Brown
    Drain are intended for future Open Space/Trail Way linkages but these lands
    will not be conveyed by Brombow to Chatham-Kent in the Phase 1 development as
    set forth in paragraph 8 above save for those sections of the Open Space/Trail
    Way linkage which directly abut the Phase I development lands.  Regardless,
    Brombow agrees to cooperate with Chatham-Kent and a chosen service club or
    community agency which may wish to establish Open Space/Trail Way linkages
    prior to development of the balance of the Brombow lands, such Open Space/Trail
    Way linkages having at all times regard to the needs and requirements of the
    adjacent lands of Brombow for ongoing agricultural use and regard to potential
    disruption to the Open Space/Trail Way linkage related to construction activity
    and the installation of infrastructure;

[12]

The appellant was a party to the OMB hearing at
    which the Settlement Agreement was tendered on November 2, 2010, as noted in
    the Boards formal memorandum of oral decision dated November 19, 2010. He
    submitted to this court that he was initially content with the Settlement
    Agreement because he thought the interests of the community were protected by the
    wording of para. 15, although he took no position on it at the OMB hearing.

[13]

Despite its obligation to cooperate set out in
    para. 15, Brombow has refused to permit heavy equipment to cross its land to
    permit the construction of the culvert across the Brown Drain. The appellant
    described three years of stalling during which the Municipality appeared
    completely unwilling to do anything meaningful to seek enforcement of para. 15.
    Counsel for the Municipality did not deny the appellants assertion.
[1]

The Appellants Motion to the Superior Court

[14]

This state of affairs led the appellant to personally
    move to enforce the Settlement Agreement under s.86 of the
OMB Act,
which
provides:

86. (1)   A certified copy of any order or
    decision made by the Board under this Act or any general or special Act may be
    filed with the Superior Court of Justice, and thereupon becomes and is
    enforceable as a judgment or order of the Superior Court of Justice to the same
    effect, but the order or decision may nevertheless be rescinded or varied by
    the Board.

(2) It is optional with the Board to adopt the
    method provided by this section for enforcing its orders or decisions or to enforce
    them by its own action.

[15]

The motion judge dismissed the motion because he
    could find no basis in agreement, prior orders, law or statute for the relief
    sought.  He held that the OMB order of 9 February 2011 does not impose on
    Brombow an obligation to allow the Municipality (C-K) onto Brombows lands to
    access the Brown Drain within the subject woods.

The Appellants Submissions

[16]

The appellant concedes he is not a party to the
    Settlement Agreement and has no right to enforce it as a matter of ordinary
    contract law. That right belongs to the Municipality.

[17]

The appellant also acknowledges the approval
    order of the OMB dated February 9, 2011 makes only a single mention of the
    Settlement Agreement, in the preamble, which provides that the Board has
    received the required confirmation that the conveyance of the lands is
    required by the Settlement Agreement has been completed. None of the planning
    documents approved by the OMB refer to the Settlement Agreement.

[18]

The appellant argues, however, that the decision
    he is seeking to enforce is the memorandum of oral decision dated November 19,
    2010, not the order of February 9, 2011. He asserts that he has status to do so
    under the
OMB Act
because he was a party to
    the hearing.

[19]

The appellant relies on the Vice Chairs language
    in the memorandum of oral decision, in particular: the planning evidence
    provided by the experts was [i]n support of the Settlement Agreement;  the
    formal order will be withheld until the conveyance of land as set out in the
    Settlement Agreement has occurred; and, in the last sentence of the decision, 
    if there are any difficulties encountered with respect to these conditions or
    in relation to any other aspect of the Settlement Agreement, I shall remain
    seized.

[20]

In response to a question from the bench, the
    appellant acknowledged that he did not go back to the OMB in reliance on the
    last sentence of the November 19, 2010 memorandum of oral decision, or under s.
    86(1) of the
OMB Act
. His explanation was
    that, as a litigation lawyer, he is more comfortable in a court environment, so
    he simply took that route, which seemed to be open to him.

Discussion

[21]

The Legislature has chosen to confer
    responsibility for approvals in the land use planning process on the OMB, which
    is an expert tribunal. In that context, the court should be reluctant to consider
    issuing an enforcement order under s. 86 of the
OMB Act
, at first
    instance, for three reasons. First, the
OMB Act
sets out an alternative
    route: s. 86(1) states that the decision may nevertheless be rescinded or
    varied by the Board, and s. 86(2) gives the OMB additional responsibility for
    selecting the method of enforcing decisions.

[22]

Second, the court should be reluctant to
    interpret the meaning of the expression Brombow agrees to co-operate with
    Chatham-Kent in para. 15 of the Settlement Agreement, in the context of the
    entire package of planning documents, including the Settlement Agreement itself.
    That is better left to the OMB as the expert tribunal that approved the
    planning documents that are referred to in the Settlement Agreement.

[23]

Third, the court should be reluctant to conclude,
    although it may well be the case, that upon issuance of the formal order in
    February 2011, the Vice-Chair was
functus officio
and was no longer seized under the terms of the last sentence of
    the memorandum of oral decision of November 19, 2010. There is no evidence
    before this court as to the OMBs practice in such circumstances, which might
    well be entirely different than the approach a court would take.

[24]

In these circumstances, before approaching the
    Superior Court, the appellant ought to have moved before the OMB for further
    relief under the last sentence of the memorandum of oral decision of November
    19, 2010, if available, or under s. 86(1) of the OMB Act, to rescind or vary
    the OMBs order, before seeking an order of the Superior Court.

[25]

It was therefore, with respect, not necessary or
    desirable for the motion judge to interpret the Settlement Agreement. He said, specifically:

The terms of the agreement  do not bind
    Brombow to such a burden [of permitting access]. Co-operation cannot be construed
    as a specific binding legal obligation. Nor does the agreement bind Brombow to
    a specific burden re: installation of infrastructure within the woodlot.

[26]

For the reasons set out above, the task of
    interpreting the Settlement Agreement was not properly before the motion judge
    and is not before us on this appeal. I would not wish to be taken as accepting
    or rejecting the motion judges interpretation.

[27]

Although I would not affirm the motion judges
    reasons, I would dismiss the appeal, without prejudice to the appellant to seek
    a remedy elsewhere.

[28]

Brombow seeks costs in the nominal amount of
    $1500. The appellant asserts that he is a public interest litigant and should
    not be required to pay costs. There is no principle that insulates public
    interest litigants from a costs award. Costs in this case should follow
    success, and I would fix them at $1500 payable by the appellant to the
    respondent Brombow.

Released:  May 28, 2015 JMacF

P.
    Lauwers J. A.

I
    agree Russell G. Juriansz J.A.

I
    agree J. MacFarland J.A.





[1]

Although the Municipality appears before us as a respondent
    with the right to enforce the Settlement Agreement, it does not seek to do so
    in these proceedings, noting only that it, as a public interest litigant,
    takes no position other than to provide context in order to assist the court in
    its interpretation of the OMB decision.


