Court File and Parties

CITATION: City Park (McLaughlin) Inc. v. City of Mississauga, 2024 ONSC 3933

DIVISIONAL COURT FILE NO.: 24-00000034-00ML

DATE: 20240709

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

BETWEEN:

CITY PARK (MCLAUGHLIN) INC.

Moving Party

AND:

THE CORPORATION OF THE CITY OF MISSISSAUGA

Responding Party

BEFORE: Shore J.

COUNSEL: Leo F. Longo, Alexander Suriano, Counsel for the Moving Party

Brian Duxbury, Counsel for the Responding Party

Kathleen Coulter, Ali Tejani,Tribunal Counsel

HEARD: MAY 27, 2024

Endorsement

[1] City Park (McLaughlin) Inc. (“City Park”) brought a motion for leave to appeal the decision of Member William R. Middleton of the Ontario Land Tribunal (the “Tribunal”), dated December 27, 2023 (the “Decision”).

[2] On a motion for leave to appeal a decision of a tribunal, the party seeking leave must persuade the motion judge that:

a) the proposed appeal raises one or more extricable questions of law; and

b) if so, there is good reason to doubt the correctness of the Tribunal’s decision with respect to the question(s) of law raised; and

c) if so, the question or questions of law are of sufficient “general or public importance” to merit the attention of the Divisional Court: Frontenac Heritage Foundation v. Homestead Land Holdings Ltd., 2022 ONSC 3613, 31 M.P.L.R. (6th) 221 (Div. Ct.), at paras. 33-34.

[3] For the reasons set out below, I find that City Park has not satisfied the test and accordingly, their motion for leave to appeal is dismissed.

[4] On July 25, 2022, the Tribunal made an order, on consent, incorporating the terms of an agreement reached between City Park and the City of Mississauga (the “City”).

[5] The parties reached an agreement on the wording for an amendment to a zoning by-law, which, amongst other things, provided for a “bonusing regime”.

[6] By the time the order was made, the relevant provisions of the Planning Act, R.S.O. 1990, c. P.13 (the “Act”) (s. 37) had been amended and the “bonusing regime” set out in the Act was no longer in effect. The “bonusing regime” was replaced by the “community benefits regime”. The amendment came into force on June 23, 2022, and the Tribunal made an order approving the consent on July 25, 2022.

[7] Nonetheless, the parties consented to the order and the order was made.

[8] Approximately 15 months after the consent order was made, City Park took the position that the Tribunal had no jurisdiction to make the July 25, 2022, consent order. It argued that the City could no longer exercise its bonusing powers under the former section of the Act and therefore the Tribunal did not have jurisdiction to make the order.

[9] City Park brought a motion asking the Tribunal for directions and for a determination as to whether the Tribunal had jurisdiction to make the order of July 25, 2022. The Tribunal dismissed the motion in the Decision dated December 27, 2023.

[10] In seeking leave to appeal, City Park submits that the Tribunal made an error in law in finding that the Tribunal had no jurisdiction to consider whether the Tribunal acted outside of its jurisdiction in making the July 25, 2022, decision.

[11] However, City Park’s submissions on the motion for leave to appeal failed to set out the reason behind the Tribunal’s dismissal of their motion. The Tribunal did not dismiss the motion on the grounds raised by City Park on the motion for leave to appeal before this court.

[12] The Tribunal did address many of the ancillary arguments raised by City Park (which were the arguments raised during the motion for leave to appeal); however, it ultimately dismissed the motion on procedural grounds. The ultimate reasons for dismissing the motion can be found at “Summary of Conclusions” starting at Part 6, paragraph 53 of the Decision.

[13] The Tribunal found that the relief sought in the Motion for Directions by City Park constituted a request for review under r. 25 of the Ontario Land Tribunal Rules of Practice and Procedure (the “OLT Rules”). Rule 25.2 provides as follows:

25.2 Request for Review of Tribunal Decision The Chair shall consider a person’s request for a review of a decision, approval, or order if the person files the request in electronic format as directed by the Tribunal, with the information set out in Rule 25.3. The Chair may further direct that two hardcopies of the request be filed. A request for review does not stay the effect of the original decision, approval or order unless the Chair so orders.

[14] The matter should have been commenced as a r. 25 request for review. The Tribunal concluded that the Motion for Directions was not brought as a proper r. 25 request, and that the Tribunal had no jurisdiction to consider the motion.

[15] Even if the motion could have been considered a proper r. 25 request for review, City Park was well out of time under r. 25.3 and the motion “ought to be dismissed for that reason”. Pursuant to r. 25.3, the request for review should have been filed within 30 days of the July 25, 2022, order. City Park was well beyond the 30-day deadline when they brought their Motion for Directions before the Tribunal. No motion had been made to extend the time.

[16] In other words, City Park was trying to get around the process and procedures mandated by the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, and the OLT Rules pertaining to settlement approvals, by disguising their motion as a motion for direction. The Tribunal dismissed the motion because, in accordance with its own policies and procedures, it did not have jurisdiction to hear the motion. There is no reason to doubt the correctness of the decision of the Tribunal with respect to their own procedure and process.

[17] The motion for leave to appeal is dismissed.

Costs:

[18] The parties agreed on $7,500 as being the quantum of costs to be made payable to the successful party on the motion. The Tribunal is not seeking costs.

Order:

[19] Order to go as follows:

a. The motion for leave to appeal is dismissed.

b. City Park shall pay costs to the City in the sum of $7,500 plus HST.

Shore J.