Court File and Parties

CITATION: South Junction Triangle Grows Neighbourhood Association v. 1423 Bloor Street West Inc. et al., 2023 ONSC 7052

DIVISIONAL COURT FILE NO.: DC-23-239-00JR

DATE: 20231214

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SOUTH JUNCTION TRIANGLE GROWS NEIGHBOURHOOD ASSOCIATION Moving Party

AND:

1423 BLOOR STREET WEST INC., BLOOR AND STERLING INC., 2726255 ONTARIO INC., 2665100 ONTARIO INC., 2688627 ONTARIO INC., 2659339 ONTARIO INC., 2659340 ONTARIO INC., 2659341 ONTARIO INC., AND 2662548 ONTARIO INC. (“1423 BLOOR PARTIES”)

AND

CITY OF TORONTO

AND

ONTARIO LAND TRIBUNAL Responding Parties

BEFORE: Justice O’Brien

COUNSEL: Moving Party self-represented

A. B. Dryer for 1423 Bloor Street West Inc., Kathleen Coulter for the Ontario Land Tribunal, and Aderinsola Abimbola, Chris Henderson and Timothea T. Leung for the City of Toronto, the Responding Parties

HEARD:

2.1 ENDORSEMENT

Overview

[1] South Junction Triangle Grows Neighbourhood Association brought an application for judicial review and sought leave to appeal the same decision of the Ontario Land Tribunal dated March 3, 2023.

[2] By endorsement dated November 7, 2023, I dismissed the motion for leave to appeal. I also indicated in the endorsement that a notice would be issued pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 because the application for judicial review did not appear to raise any issues not encompassed by the proposed appeal, leave for which was refused.

[3] In response to the r. 2.1 notice, the applicant submits that judicial review remains available to a party even when there is another statutory review mechanism. It states that this is one of the rare cases where the statutory remedy is insufficient to address the particular factual circumstances of the case. Further, in its submission, an appeal limited to questions of law cannot be an adequate alternative remedy for alleged factual errors.

[4] While I agree with the applicant’s statement of the law, as further discussed below, there are no particular circumstances that could justify judicial review in this case. The application is dismissed pursuant to r. 2.1.01 for the following reasons.

Should the Application be dismissed pursuant to R. 2.1?

[5] Rule 2.1 is an “extremely blunt instrument”: Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 12. It should only be used in the clearest of cases: Mohammad v. McMaster University, 2023 ONCA 598, at para. 6; Hart v. Balice, 2022 ONCA 787, at para. 7, citing Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488. A decision made under r. 2.1 is a discretionary decision: Sumner v. Ottawa (Police Services), 2023 ONCA 140, at para. 6, and its use should be limited to cases “where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process”: Scaduto, at para. 8.

[6] In Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, leave to appeal granted, [2022] S.C.C.A. No. 310, the Court of Appeal held that a court should exercise its discretion to judicially review a decision of the Licence Appeal Tribunal (LAT) in “rare cases.” The legislature had limited the statutory right of appeal to questions of law only. Issues of fact or mixed fact and law were presumptively left to the LAT to determine subject to the right to request a reconsideration.

[7] Here, the statutory scheme has sent an equally strong signal that the legislature intended to restrict resort to the courts for the determination of disputes in the Tribunal’s jurisdiction. Pursuant to s. 24(1) of the Land Tribunals Act, 2021, S.O. 2021, c. 4, Sched. 6, not only are appeals limited to questions of law, but they will only be heard by the Divisional Court if leave to appeal is granted. The test for leave to appeal requires a party to satisfy the court that there is reason to doubt the correctness of the Tribunal’s decision about the question of law. The question of law must also be of sufficient “general or public importance” to merit the attention of the Divisional Court: North Elgin Centre Inc. v. City of Richmond Hill, 2023 ONSC 1123, 40 M.P.L.R. (6th) 239 (Div. Ct.), at para. 7.

[8] I agree that the statute’s appeal mechanism does not foreclose judicial review in rare cases. But there is no prospect that this is one of those cases. This court will dismiss cases under r. 2.1 where the proceeding seeks to litigate issues that have already been decided: Segura Mosquera v. Child and Family Services Review Board, 2023 ONSC 3277, at para. 15. Here, the grounds for the application for judicial review are almost identical to grounds found in the notice of motion for leave to appeal. This is an attempt to relitigate the same issues.

[9] In addition, all the grounds in the notice of application either raise alleged errors of law or directly repeat alleged breaches of procedural fairness found in the notice of motion. The notice of application does not contain any alleged errors of fact. Therefore, this is not a case where the applicant has made allegations that are outside the scope of an appeal on a question of law. In short, the applicant has not demonstrated any basis on which this court could find this to be one of the rare cases where an application for judicial review would proceed even though the motion for leave to appeal the same decision was dismissed.

Disposition

[10] Therefore, the application is dismissed pursuant to r. 2.1.01.

O’Brien J

Date: December 14, 2023