Executive Summary: Key Legal and Evidentiary Issues

• The NEC’s decision to refer the application to the Ontario Land Tribunal (OLT) was found to be interlocutory and not a final determination.

• Judicial review was denied on grounds of prematurity since the administrative process was still ongoing.

• The applicant failed to show exceptional circumstances justifying court intervention before the administrative process concluded.

• Procedural fairness objections were dismissed as any unfairness could be addressed through the OLT’s process.

• The court emphasized the principle of judicial non-interference with ongoing administrative proceedings.

• Costs were awarded against the applicant for prematurely seeking judicial review without exhausting available remedies.

Facts of the case

In 2020, Columbia International College (CIC) submitted an application to the Niagara Escarpment Commission (NEC) to amend the Niagara Escarpment Plan (NEP). The purpose of the amendment was to allow CIC to operate a private secondary school within a former convent located on lands subject to the NEP. These lands fall within the “Pleasant View Survey” and are governed by special provisions under Part 2.21 of the NEP.

Under the Niagara Escarpment Planning and Development Act (NEPDA), the NEC must determine whether such an application would amount to permitting “urban uses” on protected lands. Initially, NEC staff advised that CIC’s proposed use would not constitute an “urban use,” allowing the application to proceed to public consultation. However, after public input and further internal review, a 2023 staff report reversed the earlier position, suggesting that the amendment may indeed permit an urban use. Consequently, the NEC referred the application to the Ontario Land Tribunal (OLT) under section 10(3) of the NEPDA to determine the matter.

Pleasant View Protection Corp., an objector to the proposal, filed for judicial review of the NEC’s decision to refer the application to the OLT. They claimed that the NEC’s process was flawed, lacked jurisdiction, and failed to provide adequate reasons.

Court’s analysis and outcome

The Ontario Divisional Court firmly rejected the application on the grounds of prematurity. It held that the NEC’s referral to the OLT was an interlocutory decision that did not determine the merits of the amendment request. The court emphasized that judicial review is a discretionary remedy that should not interfere with ongoing administrative processes unless exceptional circumstances exist.

The judges reinforced the importance of respecting the statutory framework and administrative process under the NEPDA. They cited longstanding principles of administrative law, including the doctrine of exhaustion and the rule against fragmented or premature court intervention. The court noted that none of the issues raised by Pleasant View Protection Corp.—jurisdiction, procedural fairness, or adequacy of reasons—justified bypassing the ongoing OLT hearing, where those concerns could be fully addressed.

The court also criticized the strategy of seeking judicial review as a means to delay administrative proceedings, stating that no stay of the OLT process had been granted or should have been assumed.

Ultimately, the application for judicial review was dismissed. The court awarded costs of $17,000 each to the NEC and Columbia Northcliffe Campus Inc. (a party related to CIC), payable by Pleasant View Protection Corp. within thirty days.