Court File and Parties

CITATION: Bacher v. GR (CAN) Investments et al., 2022 ONSC 2937 DIVISIONAL COURT FILE NO.: 824/21 DATE: 20220516

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

JOHN BACHER Appellant (Moving Party)

• and -

GR (CAN) INVESTMENTS CO. LTD. and THE CORPORATION OF THE CITY OF NIAGARA FALLS Respondents

Counsel: Ian Flett, for the Appellant Timothy Hill, Maggie Bassani and John George Pappas, for GR (CAN) Investments Co. Ltd. Chris Barnett and Andrew Rintoul, for The Corporation of the City of Niagara Falls

HEARD at Hamilton: February 11, 2022

REASONS FOR DECISION

Background

[1] This motion is brought by John Bacher ("Mr. Bacher") seeking leave to appeal to the Divisional Court from the decision of Jatinder Bhullar, Member of the Ontario Land Tribunal, dated September 17, 2021 ("the Decision").

[2] On December 8, 2020, The Corporation of the City of Niagara Falls ("the City") enacted Zoning By-law 2020-124, which permitted the development of 192.7 acres of land owned by the responding party, GR (CAN) Investments Co. Ltd. ("GR (CAN)") ("the Zoning By-law"); the City also draft approved a plan of subdivision.

[3] On December 30, 2020, under s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13, Mr. Bacher filed an appeal with the Local Planning Appeal Tribunal ("the Tribunal" or "the LPAT") regarding the passing of the Zoning By-law. His appeal consisted of a letter, dated December 29, 2020, and two appendices: one being an unsigned witness statement of M.D. Dickman, PhD, and the second being an unsigned witness statement of M.H. Richards, PhD ("the LPAT Appeal"). His letter set out 12 appeal grounds, articulated by way of headings with explanatory paragraphs below each heading. Mr. Bacher advised that he would have available a witness qualified in entomology, ecology, and herpetology.

[4] By Notice of Motion to Dismiss Without a Hearing, dated May 5, 2021, GR (CAN) moved before the Tribunal for an order pursuant to s. 34(25) of the Planning Act to dismiss the LPAT Appeal on the grounds that:

(i) it did not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal;

(ii) it was not made in good faith, was vexatious and frivolous;

(iii) it constituted an abuse of process; and

(iv) it failed to explain how the Zoning By-law is inconsistent with the Provincial Policy Statement, 2020, or how the Zoning By-law does not conform with the City's Official Plan or OPA 128 ("the Dismissal Motion").

[5] GR (CAN) asserted, among other things, that Mr. Bacher was trying to relitigate the same issues that had been raised and dismissed in an earlier appeal relating to OPA 128, in which he was the appellant. It further argued that the witness statements of Dr. Dickman and Dr. Richards were stale-dated, as they had been prepared for and filed in the earlier OPA 128 appeal, and that they were not related to the Zoning By-law at all. GR (CAN) provided a comprehensive response to Mr. Bacher's reasons for appeal and to both witness statements. It also detailed the process and technical analyses underlying the City's approval of the Zoning By-law and draft plan of subdivision. GR (CAN) filed affidavit evidence from five experts: John Henricks (land use planning), Noel Boucher (fisheries biologist), Sean Male (terrestrial ecologist), Ian Barrett (biologist), and Ronald Scheckenberger (water resource engineer), in support of its position that Mr. Bacher's claims were incorrect and not based on current conditions, that the Zoning By-law does not permit development within any protected natural heritage areas designated as Environmental Protection Areas in OPA 128, and that the Zoning By-law is consistent with the Provincial Policy Statement, 2020 and conforms to the Official Plan, and the reasons why.

[6] Mr. Bacher filed a Notice of Response to Motion, dated May 13, 2021, consisting of written argument in support of why his appeal should not be dismissed without a hearing. No responding affidavit evidence was submitted by Mr. Bacher, however.

[7] The City filed a Notice of Response to Motion, dated May 13, 2021, which included an affidavit from its Director of Planning, Building and Development, Alex Herlovitch. The City supported GR (CAN)'s request for dismissal of the LPAT Appeal.

[8] GR (CAN) filed a Reply to Response to Notice of Motion to Dismiss Appeal Without a Hearing, dated May 17, 2021, which served to clarify the relief it was seeking on the Dismissal Motion.

[9] In addition to all of these materials, the Tribunal also had before it excerpts from a previous case, Bacher v. Niagara Falls (City), [2009] O.M.B.D. No. 336 decision, identified as OMB Case No.: PL080813, OMB File No.: PL080813.

[10] The Tribunal heard oral submissions from counsel and received "extensive authorities" regarding motions to dismiss before the Ontario Municipal Board ("the OMB") and the Tribunal.

[11] The motion to dismiss was granted by the Tribunal on the first ground, that it did not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal; and on the fourth ground, that it failed to explain how the Zoning By-law is inconsistent with the provincial policy or how it does not conform to the official plan.

Leave to Appeal

[12] Section 24(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, provides that an appeal lies from the Tribunal to the Divisional Court, with leave of the Divisional Court, on a question of law only.

[13] The parties agree that to obtain leave, the moving party must establish that:

(a) the proposed ground of appeal raises a question of law;

(b) there is reason to doubt the correctness of the Tribunal's decision on the question of law raised; and

(c) the question is of sufficient importance to merit the attention of the Divisional Court: see CAMPP Windsor Essex Residents Association v. Windsor (City), 2020 ONSC 4612 (Div. Ct.), at para. 31.

[14] What constitutes an appealable question of law was described by the Court in CAMPP Windsor Essex Residents Association, at para. 32, as follows:

Questions of law generally involve questions about the identification and scope of the correct applicable legal test. Questions of fact generally concern determinations of what took place. Questions of mixed law and fact generally concern questions about whether the facts satisfy the applicable legal test. Applying the law, as interpreted, to the facts, as found, is quintessentially a question of mixed fact and law. Absent an extricable legal error in the interpretation or application of the law, the result of such an exercise is not fodder for an appeal brought pursuant to s. 37 of the [LPATA].

[15] A decision-maker's failure to consider relevant evidence can constitute an error of law: CAMPP Windsor Essex Residents Association, at para. 33.

[16] A decision-maker's failure to provide functionally adequate reasons for its decision constitutes an error of law: CAMPP Windsor Essex Residents Association, at para. 34.

[17] The Court's task is limited to ensuring that the Tribunal applied the proper legal principles in the exercise of its exclusive decision-making authority: My Rosedale Neighbourhood v. Dale Inc., 2019 ONSC 6631 (Div. Ct.), at para. 3.

[18] The appellate standard of review on an error of law is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37; CAMPP Windsor Essex Residents Association, at para. 36.

Analysis

[19] Mr. Bacher raises three grounds of appeal:

(i) Did the Tribunal err in law by failing to provide sufficient reasons for its decision?

(ii) Did the Tribunal err in law by finding that Mr. Bacher failed to disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal?

(iii) Did the Tribunal err in law by finding that Mr. Bacher failed to explain how the Zoning By-law is inconsistent with, fails to conform with, or conflicts with the Provincial Policy Statement and Official Plan, as applicable?

[20] I deal with each of these grounds below within the framework of the leave to appeal test.

(a) Do the grounds of appeal raise a question of law?

[21] I am satisfied that the first ground of appeal raises a question of law in that a failure to provide sufficient reasons constitutes an error of law.

[22] With respect to the second and third grounds of appeal, I am satisfied that they also raise a question of law in that Mr. Bacher argues that the Tribunal applied an enhanced test or applied the wrong legal principles in its decision-making.

(b) Is there reason to doubt the correctness of the Tribunal decision on the questions of law raised?

1. Sufficiency of Reasons

[23] A decision-maker's reasons must be sufficient to serve three main functions: to explain the decision to the parties, to provide public accountability, and to permit effective appellate review. The reasons must be considered and evaluated as a whole, in the context of the evidence and submissions before the decision-maker, and with an appreciation of the purpose for which the reasons were delivered: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 34, 35, and 55.

[24] Reasons are not to be assessed against a standard of perfection, however. And a decision should not be set aside based on the reasons not including "all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred": Masters v. Claremont Development Corporation, 2021 ONSC 3311 (Div. Ct.), at para. 40.

[25] As explained in Zellers Ltd. v. Royal Cobourg Centres Ltd., [2001] O.J. No. 3792 (Div. Ct.), at paras. 14-15, it is important that those with an interest in the process understand how and why those interests have been dealt with in a certain manner. In that case, the Court held that, while the OMB's decision did not specifically address the various procedural concerns raised by Zellers, the resolution of those issues was not part of the substance of the Board's decision to dismiss the appeals. The Board had given the general substance of the reasoning behind its decision to dismiss Zellers' appeal, including the basis of its finding that Zellers' notice of appeal did not disclose any apparent land use planning issues.

[26] Counsel for Mr. Bacher argues that the reasons set out in the Decision are deficient as they do not refer, in any meaningful way, to specific objections and explanations Mr. Bacher provided as the reasons in support of the LPAT Appeal. He contends that the central piece of evidence for the Tribunal to consider was Mr. Bacher's reasons for his appeal and that, by ignoring those reasons for the appeal, the reasonableness of the Decision cannot be determined.

[27] GR (CAN) submits that the reasons are sufficient because they show that the Tribunal identified and applied the correct tests, and that it made two clear findings, based on the record before it, to support its decision to dismiss the LPAT Appeal without a full hearing: (i) that Mr. Bacher failed to disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal; and (ii) that Mr. Bacher's appeal failed to explain how he intended to argue that the Zoning By-law was inconsistent with the Provincial Policy Statement, 2020 or failed to conform to the Official Plan. Only one of these findings was required to dismiss the LPAT Appeal. The Tribunal noted a number of instances how Mr. Bacher's responding materials did not serve to explain or establish how he intended to argue that the Zoning By-law was inconsistent and did not conform; that he did not provide sufficient particulars regarding the policy documents he intended to rely on; and that his materials "failed to establish any authenticity of reasons".

[28] The City submits that the Tribunal's reasons provide a clear path to understand why it dismissed the LPAT Appeal. The Tribunal noted the complete absence of any evidence filed by Mr. Bacher in response to the motion, it applied the correct legal tests, and it explained how it arrived at the conclusion that it did.

[29] In the Decision, the Tribunal set out the factors it must consider on a motion to dismiss an appeal without a holding a hearing, being:

(i) the authenticity of the reasons stated;

(ii) whether there are issues that would affect a decision in a hearing; and

(iii) whether the issues are worthy of the adjudicative process.

[30] The Tribunal cited case law setting out the test to be applied and the threshold to be met by an appellant on a Motion to Dismiss Without a Hearing. It referred to r. 10.6 of the Tribunal's Rules of Practice and Procedure ("Rules"), which requires a responding party to serve a notice of response that, among other things, includes "an affidavit setting out a brief and clear statement of the facts upon which the responding party will rely".

[31] The Tribunal noted that, in the face of a motion to dismiss, Mr. Bacher had the opportunity "to demonstrate that the 'explanation' requirements of s. 34(19.0.1) is supported by elaboration or expert opinion evidence and that it warrants a hearing". It found that Mr. Bacher had the opportunity to put his "best foot forward" but, despite the requirements of r. 10.6, he "did not produce any Affidavit in its response. The Appellant chose to bank on some unsigned, undated material. ..." The Tribunal held that Mr. Bacher "failed to explain and establish how he intends on arguing inconsistency and non-conformity, or even cite the policies with which he intends to bolster his case. ..." It further held that, while Mr. Bacher "banked on a possible future CMC where issues could be established and refined", s. 34(25) of the Planning Act is not subservient to the holding of a Case Management Conference ("CMC").

[32] The Tribunal concluded (at paras. 26 and 28):

When an Appellant decides to not establish worthy issues before a CMC, then they castrate [the] Tribunal's abilities to plan for efficient and appropriate adjudication. This can lead to expending of significant public resources and similarly causes other possible public and private parties to expend significant resources. This is contrary to [the] Tribunal's mandate which requires that the Tribunal carry out expeditious, fair, just, and cost-effective adjudication of land use planning appeals.

The Tribunal having considered all the material and submissions before it finds that the Appellant has failed to disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal.

[33] I find that the reasons of the Tribunal are sufficient. The Tribunal referred to the relevant statutory provisions and jurisprudence, and rule. The Tribunal identified the materials before it and stated that it considered those, along with the parties' submissions, when deciding whether Mr. Bacher's appeal should be dismissed without a hearing based on the applicable tests. The Tribunal explained why it dismissed Mr. Bacher's appeal. There is a logical connection between the outcome and the basis for that outcome. I am of the view that the Tribunal's reasons allow for meaningful appellate review. Accordingly, no error of law was made in this regard.

2. Did the Tribunal err in law by finding that Mr. Bacher failed to disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal?

[34] Section 34(25) of the Planning Act sets out a number of disjunctive bases upon which the Tribunal can dismiss all or part of an appeal without holding a hearing. One of those grounds, pursuant to s. 34(25)(1)(i), is if the Tribunal is of the opinion that the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal.

[35] The test to be applied in determining a s. 34(25) motion was set out in the seminal case, Toronto (City) v. East Beach Community Assn., [1996] O.M.B.D. No. 1890 (O.M.B.), at para. 9, as follows:

With respect to the tests ... these provisions allow the Board to examine whether there has been disclosure of planning grounds that warrant a hearing. ... The Board is entitled to examine the reasons stated to see whether they constitute genuine, legitimate and authentic planning reasons. This is not to say that the Board should take away the rights of appeal whimsically, readily and without serious consideration of the circumstances of each case. This does not allow the Board to make a hasty conclusion as to the merit of an issue. Nor does it mean that every appellant should draft the appeal with punctilious care and arm itself with iron-clad reason for fear of being struck down. What these particular provisions allow the Board to do is seek out whether there is authenticity in the reasons stated, whether there are issues that should affect a decision in a hearing and whether the issues are worthy of the adjudicative process.

[36] The onus on an appellant was explained in Calloway REIT (Whitby NE) Inc. v. Whitby (Town), 2020 CarswellOnt 18046 (O.M.B.), at paras. 14-15, as follows:

It is not necessary for an appellant responding to a motion to dismiss to convince the Tribunal that its appeal will succeed. Rather, the onus is on the moving party to demonstrate that an appeal does not contain a legitimate land use planning ground that could succeed if the matter proceeded to a hearing.

Numerous OMB and Tribunal decisions on motions to dismiss have considered the evidentiary requirements for an appeal to survive such a motion. While expert evidence – planning or otherwise – is not required for an appeal to proceed to a hearing, the Tribunal will carefully consider such evidence when it is tendered during the motion. Where an appellant disagrees with data or expert analysis that support a proposed development, the Tribunal expects the appellant to present its own analysis in support of its appeal. The Tribunal therefore expects that when an appellant tenders evidence in response to a motion to dismiss its appeal, the evidence will support the case the appellant intends to make to the Tribunal at the hearing. Similarly, and in accordance with the long line of OMB and Tribunal cases on these motions, that evidence must rise above the level of mere speculation and apprehension if the appeal is to survive the motion. [Citations omitted.]

[37] Other OMB and LPAT decisions similarly describe this onus on an appellant, including:

• Raising the apprehension of possible planning grounds or deploying planning language is not sufficient to meet the test of requiring a hearing: see East Beach, at para. 12; and Zellers, at paras. 31-33.
• An appellant must "substantiate the reasons for the appeal beyond what is laid out in the Notice of Appeal" in order to satisfy the Tribunal "that there are valid planning grounds" upon which it may allow the appeal, in whole or in part, should the matter proceed to a hearing: MacLean v. Strathroy-Caradoc (Township), 2017 O.M.B.D. No. 1362 (O.M.B.), at para. 25.
• An appellant has a responsibility to demonstrate that there are sufficient and legitimate planning grounds that underlie the appeal and to show the prospect of evidence that could sustain the appeal at a hearing: Todaro v. Wasaga Beach (Town), 2019 23000 (L.P.A.T.), at paras. 31 and 34.
• The onus rests on an appellant to meet the requirements of the Planning Act to sustain their appeal, including on a prima facie basis in a motion to dismiss; it is incumbent on an appellant to use available opportunities to put forward the necessary factual evidence in this regard: Huzan v. Oliver Paipoonge (Municipality), 2020 1430 (L.P.A.T.), at para. 23.

[38] In response to the Dismissal Motion, instead of filing responding affidavit evidence addressing the evidence filed by GR (CAN) and the City, Mr. Bacher made written argument and relied on documents contained within the Motion Record of GR (CAN). He also argued that his appeal was satisfactory in light of the fact that, under the new regime, the first CMC is considered mandatory, and it is at the CMC where a hearing's issues are further focussed and refined.

[39] The Tribunal rejected the CMC argument, and I am of the view that it was correct in doing so. Given the language of s. 34(25) and r. 10.6, I find that the Tribunal made no error in law in holding that Mr. Bacher was not entitled to wait for the first CMC. The Dismissal Motion was the occasion when Mr. Bacher had to satisfy the Tribunal that his appeal deserved adjudication.

[40] In choosing not to file responding affidavit evidence of his own, Mr. Bacher did so at his peril. Reasons for an appeal are not facts, evidence, or prospective evidence. Mr. Bacher did not engage any expert witnesses to respond to the land use planning opinions presented by GR (CAN) and the City. He did not provide any prospect of contrary facts or evidence that would oppose those opinions. Mr. Bacher did not specifically identify valid planning grounds upon which the Tribunal could allow the appeal. By failing to file a responding affidavit, he took a risk that the evidence that was before the Tribunal would be found to show that none of his grounds of appeal were worthy of adjudication. That is what happened in this case. Given that Mr. Bacher is not a land use planning expert himself, the Tribunal was entitled to find that the generalized claims and allegations made in his notice of appeal and response were insufficient alone to support his position that the appeal should proceed to a hearing.

[41] In the context of all of the materials that were before the Tribunal, including the evidence and the submissions, I can find no reason to doubt the correctness of its conclusion that the appeal grounds raised by Mr. Bacher did not constitute "genuine, legitimate and authentic planning reasons". In my view, there was sufficient uncontroverted evidence before the Tribunal capable of satisfying it that the issues raised by Mr. Bacher in his notice of appeal were not worthy of adjudication in the circumstances.

[42] I find no reason to doubt the correctness of the Tribunal's decision on this second ground.

3. Did the Tribunal err in law by finding that Mr. Bacher failed to explain how the Zoning By-law is inconsistent with, fails to conform with, or conflicts with the Provincial Policy Statement and Official Plan, as applicable?

[43] Another ground upon which the Tribunal can dismiss an appeal without a full hearing, pursuant to s. 34(25)(3) of the Planning Act, is if the appellant intends to argue a matter mentioned in s. 34(19.0.1) but has not provided an explanation of how the impugned by-law is inconsistent with, fails to conform with, or conflicts with a policy statement, provincial plan or official plan.

[44] Counsel for Mr. Bacher argues that the Tribunal applied an enhanced test at odds with the test found in s. 34(19.0.1) and s. 34(25)(3) as these provisions require an "explanation", while the Tribunal required Mr. Bacher to "argue" his appeal at the motion stage. I do not agree. The Tribunal reached its decision in accordance with its Rules and as authorized by its enabling statute. The jurisprudence on motions to dismiss without a hearing is well-established. Requiring an initial showing of merit in an appeal is an important measure that ensures that decision-makers are not forced to hold hearings on unmeritorious appeals and is in keeping with the orderly administration of justice.

[45] In the face of the extensive submissions and expert evidence filed by GR (CAN) and the City on the Dismissal Motion, which seemed to suggest that the concerns raised by Mr. Bacher were incorrect or were otherwise addressed, Mr. Bacher responded by presenting legal arguments and re-stating his objections to the Zoning By-law. He did not provide any planning facts or evidence to support his concerns or to explain how or why the Zoning By-law was inconsistent with, failed to conform with, or conflicted with the identified planning documents.

[46] I find no reason to doubt the correctness of the Tribunal's decision on this third ground.

(c) Is the question of law of sufficient importance to merit the attention of the Divisional Court?

[47] Having concluded that there is no good reason to doubt the correctness of the Tribunal's decision, it is unnecessary for me to determine whether the proposed appeal raises a question of law of sufficient importance to warrant the attention of the Divisional Court.

[48] However, I am of the view that the proposed appeal does not raise an issue of general or public importance, or an issue relating to the development of the law or the Tribunal's administration of justice, meriting the attention of the Divisional Court. The Tribunal's decision is a case-specific determination that, on the motion to dismiss, Mr. Bacher had not provided satisfactory information to demonstrate that his appeal merited a full hearing in light of the fulsome submissions and evidence filed by GR (CAN) and the City.

Disposition

[49] For the foregoing reasons, the motion for leave to appeal is dismissed.

Costs

[50] At the hearing, the parties spoke to the issue of costs. Further, GR (CAN) and the City each submitted costs outlines. I was not given detailed dockets, however, so I am unable to ascertain exactly how much time was spent doing what and by whom.

[51] I do not find that the conduct of Mr. Bacher warrants an award of substantial indemnity costs. Therefore, I will consider costs to GR (CAN) and the City on a partial indemnity basis.

[52] In fixing an amount for costs, the overriding principles are fairness and reasonableness: Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); and Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (C.A.). In assessing what is fair and reasonable in the circumstances, the court is not to engage in a mechanical exercise but, rather, must take a contextual approach applying the relevant principles and factors.

[53] Among the factors I have considered: this was a leave to appeal motion; the motion was of moderate complexity; the motion was of significance to the parties; GR (CAN) and the City were wholly successful on the motion; and the partial indemnity rates charged appear to me to be reasonable. However, I have determined that the total hours claimed by GR (CAN) and the City, respectively, should be reduced in order to account for duplication in effort and to reflect that each of them only required one lawyer to argue the motion.

[54] Mr. Bacher did not file a bill of costs so I am unable to ascertain what his reasonable expectations would have been in correlation to legal fees he incurred. However, I have considered that he could reasonably have expected to pay costs in the event of lack of success on the motion, particularly as his Notice of Motion for Leave to Appeal seeks costs of the motion.

[55] Having regard to all of these factors, and considering the balancing exercise required under r. 57.01 of the Rules of Civil Procedure and the guidance provided by the Boucher decision of the Ontario Court of Appeal, I am satisfied that it is fair, reasonable and proportionate in the circumstances to award partial indemnity costs payable by Mr. Bacher to GR (CAN) in the total amount of $12,000.00, for fees, disbursements and HST, all inclusive, and partial indemnity costs payable by Mr. Bacher to the City in the total amount of $8,000.00 for fees, disbursements and HST, all inclusive. Costs are ordered to be paid within 30 days.

B. MacNeil J.

MacNEIL J.

Released: May 16, 2022

CITATION: Bacher v. GR (CAN) Investments et al., 2022 ONSC 2937 DIVISIONAL COURT FILE NO.: 824/21 DATE: 20220516

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

JOHN BACHER Appellant (Moving Party)

• and –

GR (CAN) INVESTMENTS CO. LTD. and THE CORPORATION OF THE CITY OF NIAGARA FALLS Respondents

REASONS FOR DECISION

Released: May 16, 2022