Markham (Township) v. Langstaff Land Development Ltd. et al.

J.:-By s. 26(9) of The Planning Act, R.S.O. 1950, c. 277, and s. 26(12) of 1955 (Ont.), c. 61, when a final plan is approved by the Minister but is not registered within one month, the latter may withdraw his approval and may require a new application to be submitted.

Roach J.A. interpreted this to mean that once the Minister called for the new application, by that fact he became functus of the existing application and could not act thereafter upon it except on its being placed again in the course of an application de novo. In the circumstances, however, he found the letter of February 10, 1955 from the Department not to have been authorized by and, therefore, not the act of the Minister and that consequently it did not bring to an end the existing application.

I am unable to agree that the circumstances of the letter are to be so found; prima facie this correspondence carried on in the manner in which it was is of an official character and as from the Minister himself; but in the view I take the statutory provisions, that does not affect the result at which Roach J.A. arrived.

What the legislation provides for is an administration of a subject that has become one of importance in municipal government, a matter of planning a structure of sectional allocation of the various conditions and functions of community life, i.e., homes, schools, shops, industries, public places, etc., that will best serve the interests of that life as it grows and develops. By the factual particulars required by s. 26 to be shown on the draft plan, the matters to be q.C.R.

regarded by the Minister, the sources of information to which he may resort, his discretion to withdraw his approval of the draft plan at any time before that of the final plan, and his power to withdraw final approval if the plan is not registered within one month of the date of that approval, a procedure is furnished of a continuing nature until final decision and action taken on it effects a determination. An application for approval until expressly or impliedly recalled remains a request for permission to develop the land for the purposes indicated. Behind it is the urgency to bring to an end the suspension of the use of the land desired. But the owner remains in control: he is not bound to act even on an approval; he may disregard it or withdraw the application and hold the land for such other use as is not within the statute and for so long as he pleases.

The mention of a new application in the letter in question was not, then, in any technical sense, either a termination of the application or the exhaustion of the Minister's authority; it created a pause in the process: its only effect was to prevent the registration of the plan until a new final approval had been given.

That there was no intention on the part of the owner to withdraw the application is seen by the position taken by him before the Municipal Board; and prior to that hearing communications had been passing between the applicant and the Department. On such a matter the Minister forms opinions which may be reversed, modified or changed so long as they do not become fixed temporarily or permanently by the statute or by the action of others. The reference to the Board was, then, within the Minister's discretion.

The conditions annexed to the approval by the Board were such as were deemed to respect and protect the interests of the Township, the purpose for which the Board has been given administrative jurisdiction. The appeal must, therefore, be dismissed with costs.

J.:-In this appeal I agree with the decision of Roach J.A. and also with his reasons, subject only to the one following reservation. As, for the reasons given by Roach J.A., I agree with his conclusion that although the Minister withdrew his approval of the final plan he did not "require that a new application be submitted", I find it unnecessary to determine whether if the Minister had so required he would thereby have become functus officio and without authority to refer the matter to the Municipal Board. I wish to reserve my opinion upon that question until it becomes necessary to decide it.

I agree with the Chief Justice that the Board had jurisdiction to impose the conditions contained in its order. I would dismiss the appeal with costs.

PRICE v. CARGIN CARGIN

APPEAL from a judgment of the Court of Appeal for Ontario (1) affirming the judgment of Barlow J.

(orally) :-Mr. Mirsky, it is unnecessary for us to call upon you. Mr. Walsh and Mr. Davies have said everything possible-on behalf of the appellant, but we are unable to disagree with the result arrived at by the two Courts below.

S.C.R.

The appeal is, therefore, dismissed with costs, but there will be no costs of the motion for leave to appeal.

BRENNAN

WHALE v. NELLIGAN

NEL- LIGAN

APPEAL by the defendants from a judgment of the Court of Appeal for Ontario (1) affirming the judgment of McRuer C.J.H.C. (2).

(orally):-It is unnecessary to call upon the respondents.

On the particular facts of this case we all agree with the reasons of the Court of Appeal and say nothing about the reasons of the trial judge, as to which Mr. DesBrisay raised some question.

The appeal is dismissed with costs.

We agree with the Court of Appeal that the appellants had not discharged their duty of investigating and exercising their own judgment on the heating-system installed. Mr. DesBrisay suggested that the Chief Justice of the High Court at trial ruled that the architects warranted the sufficiency of the heating system.

We doubt that his