



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.:

A.

Overview

[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 NVCAs 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 Commissioners
    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 Commissioners decision. I would allow the appeal and restore
    the Commissioners decision for the reasons that follow.

B.

The regulatory regime

[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 authoritys permission for
    development should be required, if, in the authoritys 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.

C.

The decisions below

The NVCA

[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 NVCAs 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.

The Mining and Lands Commissioner

[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.

1.

The relevance of law, policies, and guidelines

[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.

2.

The general practice of conservation authorities

[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 NVCAs 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.

3.

The reasonableness/appropriateness of policies
    and guidelines

[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 authoritys
    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 NVCAs stated goal of ensuring safe access
    and egress to a development site.

4.

The suitability of the site for human habitation

[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 NVCAs 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 NVCAs Regulations and the guidelines
    provided by the PPS, especially from a safety point of view.

5.

The relevance of cumulative effect and precedent

[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.

The Divisional Court

[24]

The respondents appealed the Commissioners 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 tribunals 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 Commissioners expertise, citing a prior Divisional Court decision,
3437400 Canada Inc. v. Niagara Peninsula Conservation Authority
, 2012
    ONSC 1503, 354 D.L.R. (4
th
) 756 (Div. Ct.).

[27]

Second, the court stated that the Commissioners
    reliance on safety considerations in rejecting the appellants 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 courts 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
    Commissioners 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 Commissioners 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.

D.

Issues on appeal

[33]

Two issues must be resolved on this appeal.
    First, what is the appropriate standard of review on an appeal from the
    Commissioners decision? Second, how does that standard of review apply to the
    Commissioners decision?

E.

The standard of review

[34]

The appellants and interveners submit that the
    Commissioners decision is subject to review on the reasonableness standard.
Amicus
and the respondents seek to defend the Divisional Courts decision that the
    correctness standard applies.

[35]

In my view, the Divisional Court erred in
    applying a correctness standard to the Commissioners decision. As I will
    explain, the reasonableness standard applies.

The presumption of reasonableness 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 laïque 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 tribunals 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 Ministers 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 Commissioners several home acts. As a result, the
    reasonableness standard applies presumptively to appeals from the
    Commissioners decisions interpreting it. I note that this accords with this
    courts 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.

Is the presumption of reasonableness review rebutted?

[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 Commissioners 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 adjudicators 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.

1.

Is a question of law of central importance
    raised?

[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 tribunals
    specialized expertise. It cannot be said that the Commissioners interpretation
    of the
CAA
and regulations is such a question.

[43]

Amicus
did not
    seek to defend the Divisional Courts 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 Commissioners 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.

2.

Does a question concerning jurisdictional lines
    arise?

[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 NVCAs 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 Commissioners 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.

F.

Was the Commissioners decision reasonable?

[53]

The reasonableness of the Commissioners decision
    depends on the answer to two specific questions. First, was the Commissioners
    interpretation of ss. 2 and 3 of O. Reg. 172/06 reasonable? Second, was the
    Commissioners exercise of discretion under s. 3 reasonable?

The interpretation of ss. 2 and 3

[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 NVCAs 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 Commissioners
    interpretation of O. Reg. 172/06 is reasonable. It accords with the plain
    meaning of the relevant sections.

[59]

The Divisional Courts 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 Courts
    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 Commissioners
    interpretation of O. Reg. 172/06 is unreasonable in this sense. On the
    contrary, the Commissioners 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 Courts decision in
3437400
holds otherwise, it should not be followed.

The exercise of discretion under s. 3

[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 Commissioners 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 Commissioners 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 Commissioners 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 Forestrys 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
    Commissioners 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
    courts 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 Commissioners 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
    Commissioners concerns about access to and egress from the site in the event
    of such a storm were unreasonable.

[80]

Finally, although the Commissioners decision is
    not as clear as it could be, safety considerations were not the only thing that
    informed the Commissioners 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.

G.

Conclusion

[83]

I would allow the appeal and reinstate the
    Commissioners 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.


