City of Ottawa Land Planning and the Charter of Rights by Krystina Caponi

Humanics Universal Incorporated, a small corporation owned by Dr. Ranjit Perera and his family members, has applied for leave to appeal to the Ontario Court of Appeal to challenge earlier rulings concerning the draft plan approval of its subdivision by the City of Ottawa.

Dr. Perera, president of Humanics Universal Inc., has been laying the groundwork for his subdivision in Cumberland—the rural, east-end of Ottawa—since 2006.

After receiving compensation in a court settlement, Dr. Perera bought 69 acres of land to begin the development of a Humanics Institute and a Humanics Sanctuary and Sculpture Park. In the process, Dr. Perera challenged the City after they imposed 134 draft plan conditions, some of which he alleges are unfair, unreasonable and an infringement on his family’s Charter rights as intended homeowners.

It is important to note that property rights are not protected by the Canadian Charter of Rights and Freedoms. According to David Johansen, in his article entitled “Property Rights and the Constitution,” the main concern that arose when the Canadian government tried to instill property rights in the Charter was the very act of defining the term property.

Instead of amending the constitution to include a definition of property rights, Dr. Perera proposes that fair and reasonable use and enjoyment of a person’s home and homestead is a right that should fall under sections 2, 7, and 8 of the Charter.

The Charter, under section 2, guarantees Canadians freedom of expression, religion, association and peaceful assembly; the right to life, liberty and security under section 7; and the right to be secure against unreasonable search or seizure under section 8. According to Dr. Perera, Canadians cannot enjoy these fundamental rights and freedoms without the right to fair and reasonable use and enjoyment of their home and homestead.

In 2009, the City issued its final draft plan to the Humanics Institute, consisting of 132 conditions while in 2007—when Dr. Perera first applied for approval—the City had 13 standard conditions. According to Dr. Perera, the process and certain conditions allegedly infringe on his right to fair and reasonable use and enjoyment of his home and homesteads. He also alleges that the City infringed on his section 15 Charter rights—the right to equal treatment.

In February 2012, Dr. Perera appealed to the Ontario Municipal Board (OMB), who struck out his Charter claims but ruled in favor on five of the nine land-use planning issues—parkland issues, less costly fences along the park trails and a 30 metre setback from the watercourse.

That following summer, Dr. Perera came across new pieces of information that contradicted the initial evidence led by the City—a six-metre access allowance, the early servicing agreement and conditions concerning the natural reserve areas.

Apart from the new evidence, there were new issues that arose: the process of rezoning of the geotechnical set back areas, what can be permitted within the natural reserve areas, permission to clear the trees on certain roads and whether the City had a right to the land area along the trails.

Dr. Perera filed an application to review the original OMB decision based on new evidence and issues, but the OMB denied the request. The City later agreed to remove the early servicing agreement.

“They denied the request on the basis that the member who initially heard the case was in the best position to rule on the concerned draft plan condition,” says Dr. Perera. “But the new evidence or issues were not in front of the board when they made their initial decision.”

In May 2012, Dr. Perera applied for leave to appeal to contest the board’s decision to the Ontario Divisional Court, but Justice O’Neil upheld the previous rulings. Dr. Perera then appealed to the Ontario Divisional Court and in April 2013, he appeared before a panel of judges who refused to set aside Justice O’Neil’s ruling. Since then, Dr. Perera has applied for leave to appeal to the Ontario Court of Appeal.

The OMB ruled against three land-use planning issues which allegedly infringe on Dr. Perera’s charter rights: the six-metre access allowance to provide space for parking equipment in case of a slope failure, security prior to construction and what could be developed within the eight-metre environmental reserve along the park trails.

Dr. Perera also claims the draft plan process and certain conditions are allegedly discriminatory against rural subdivisions, in comparison to large urban subdivisions. According to Dr. Perera, treating people with substantially different circumstances in the same way can be considered discriminatory. What may be necessary, fair and reasonable for high-density urban subdivisions may not necessarily be fair and reasonable for a rural subdivision, says Dr. Perera.

“The process followed was extremely cumbersome and long-drawn-out and far exceeded the timelines that the City had itself established for draft plan approval of residential subdivisions,” says Dr. Perera. “The process and certain conditions were also extraordinarily costly, and seriously affects the viability of undertaking privately-serviced rural residential subdivisions.”

While the City’s own guidelines indicated that it would take 19 weeks to issue a draft plan approval, it took the City 103 weeks to issue its first draft. According to Dr. Perera, the City’s policies and guidelines for draft plan approvals of rural subdivisions was changing. After a number of municipalities joined together, 80 per cent of the land was now in the rural area of Ottawa, with only 10 per cent of the city’s population living there.

“The City was experiencing great difficulties in dealing with rural privately serviced subdivisions and imposed a moratorium on rural privately serviced subdivisions without public consultation,” says Dr. Perera. “The City was also negligent and close-minded in handling its negotiation and it took a further 36 weeks before it issued its final draft.”

Dr. Perera also claims the divisional court erred in law by affirming the OMB’s decision to strike out his alleged Charter infringes on the basis that “the reasons set out in the notice of appeal do not disclose any apparent land use planning ground.”

According to Dr. Perera however, the alleged Charter infringes are all linked to the land-planning conditions listed in the City’s draft plan. Moreover, Dr. Perera pointed out that in common-law, courts should not throw out a case unless it satisfies the plain and obvious test that the plaintiff’s claim will not succeed.

“It was certainly not plain and obvious that [we] disclosed no reasonable claim” says Dr. Perera. “The Board’s dismissal of [our] Charter claims is unreasonable and an error of law. [We] should not have been denied an opportunity to prove [our] alleged Charter violations at a full hearing.”

Whether the process and certain draft plan conditions, issued by the City, infringed on Dr. Perera and his family’s Charter rights will be up to the Ontario Court of Appeal to decide.