Court File and Parties
CITATION: South Junction Triangle Grows Neighbourhood Association v. City of Toronto 2024 ONSC 4689
DIVISIONAL COURT FILE NO.: 541/23
DATE: 20240823
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
South Junction Triangle Grows Neighbourhood Association
Appellant
– and –
City of Toronto
Respondent
Cara Sweeny, for the Appellant
Georgia Tanner, for the Respondent
HEARD: August 14, 2024
REASONS FOR DECISION
SHORE J.
[1] This is a motion for an extension of time to file an Application for Judicial Review.
[2] The moving party is a corporation referred to as the South Junction Triangle Grows Neighbourhood Association ("South Junction"). South Junction was established by a group of residents living in the Toronto area known as the South Junction[^1] who were concerned about the number of applications for development being submitted to the City of Toronto.
[3] The responding party is the City of Toronto ("the City").
[4] The dispute relates to a property identified as 221, 225 and 227 Sterling Road, Toronto, Ontario ("221 Sterling").
[5] A detailed summary of events is required to understand the decision to dismiss the motion for an extension of time to file the Application for Judicial Review.
Summary of Events:
[6] On May 4, 2021, an application for a zoning by-law amendment was submitted by a developer and the owner of 221, 225 and 227 Sterling Road ("the Developer"). The Developer filed an application to amend the zoning by-laws, which included demolition of 221 Sterling and redevelopment of the land into condominiums.
[7] On May 11, 2022, Toronto City Council ("City Council") stated its intention to designate 221 Sterling under Part IV of the Ontario Heritage Act., R.S.O. 1990, c. O.18 ("the Ontario Heritage Act").
[8] Over the next three months, the Developer commenced two separate appeals against the City at the Ontario Land Tribunal ("OLT").
[9] On May 30, 2022, the Developer commenced their first appeal to the OLT ("the Development Appeal"). The Developer alleged that the City had not reviewed its application for a zoning by-law within the timeframes set out in the Planning Act, R.S.O. 1990, c. P.13 ("the Planning Act").
[10] On August 15, 2022, the City passed a by-law designating 221 Sterling as being of cultural heritage value or interest. The Developer commenced their second appeal ("the Heritage Appeal") at the OLT in response to this decision.
[11] On September 7, 2022, South Junction was granted party status in the Development Appeal that was scheduled to be heard on October 17, 2023, for 9 days. South Junction was not a party to the Heritage Appeal.
[12] The parties participated in mediation.
[13] In February 2023, the Developer submitted a permit application, to alter 221 Sterling and not demolish it.
[14] On April 26, 2023, the City received a with prejudice settlement offer. The next day, South Junction was provided a copy of the settlement offer and advised that it would be considered by City Council at a meeting scheduled for May 10-12, 2023. Consideration of the offer was included as an item on the public agenda for the City Council Meeting, published May 5, 2023.
[15] The settlement offer included the Developer's revised plan, comprised of mixed-use spaces, including residential and dedicated community uses. A portion of the heritage façade would be incorporated into the new building. The Developer would withdraw the Heritage Appeal and in return, the City would approve the permit with the revised plan.
[16] On May 10, 2023, at a City Council meeting, the City agreed to the comprehensive resolution of both appeals. On May 17,2023, South Junction was advised that the City would be accepting the offer. City Council approved the settlement by way of resolution, dated June 2, 2023.
[17] As such, on June 2, 2023, the Developer withdrew the Heritage Appeal. The heritage designation was therefore in full force and effect. South Junction was copied on the notice to the OLT.
[18] However, the revised plan still required approval by the OLT.
[19] On July 31, 2023, South Junction served the City with its unissued Application for Judicial Review of the May 10, 2023, decision, being Council's acceptance of the settlement proposal. Despite several requests by the City to be served with issued documents, it was only on August 22, 2023, that South Junction advised that they would be bringing a motion to extend the time to commence the application. It was not until September 24, 2023, that South Junction served its notice of motion seeking an extension of time to commence the application.
[20] In early August 2023, prior to commencing the application for judicial review, South Junction inquired about an adjournment of the Development Appeal's October 17 hearing, pending the outcome of their application for judicial review. On August 3, 2023, the OLT considered South Junction's request for an adjournment of the October 17, 2023, hearing. The request was dismissed, and a procedural order was made governing the process and timelines for the OLT hearing, to ensure it proceeded as scheduled.
[21] On October 5, 2023, the OLT released a decision, revoking South Junction's party status because of their failure to comply with the prescribed timelines set out in the procedural order and their failure to provide sufficient reasons to justify the continued non-compliance. However, the OLT granted South Junction participant status. South Junction was permitted to submit a written statement detailing their concerns.
[22] The hearing was held on October 17, 2023, and a 12-page decision was released, not including the terms of the order, which added several pages to the decision. The OLT heard testimony from a land use planner, and had the benefit of several exhibits before them, including the South Junction Participant Statement. The Tribunal heard evidence on how the proposed development met and addressed matters of the provincial interest and was consistent with the Provincial Policy Statement 2020 and confirmed with the Growth Plan for the Greater Golden Horseshoe. Evidence was also provided with respect to how the plan confirms with the City Official Plan. The decision also referred to the statement filed by South Junction, and their concerns regarding the Heritage designation. The decision addressed many of South Junction's expressed concerns. The approval is provisional on acceptable tenant relocation, rent gap payments, and the right to return to occupy one of the replacement rental units at similar rents.
[23] Neither of the OLT decision revoking South Junction's party status nor the OLT October 17, 2023, decision approving the amendment to the zoning by-law are being appealed. South Junction is seeking judicial review of the underlying May 10, 2023, decision of City Council.
Law and Analysis:
[24] Section 5(2) of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1 states:
The court may, on such terms as it considers proper, extend the time for making an application for judicial review if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.
[25] The onus is on the applicant to prove that there are apparent grounds for relief. This Court has held that the following should be considered:
a. The length of the delay and any explanation offered for it;
b. The substantive merits for the application for judicial review. Success need not be shown, but weak grounds will weigh against granting an extension: Rowe v. College of Nurses of Ontario, 2023 ONSC 3735.
Explanation for delay:
[26] I disagree with the City's submissions that South Junction has not adequately explained the delay in commencing their application. The City received notice as of July 31, 2023. Community volunteers run South Junction. They are self represented. They were involved in a two-week hearing in July and would have been busy preparing around the time their application was due. Ms. Sweeny, who represented the corporation, not as a lawyer, but as a director, had to take two weeks off work to represent South Junction at the July hearing. I accept that this was a very busy time for South Junction, which explains the delay in completing the Application. Whether the delay is justified is a question I need not answer because of the reasons below.
[27] What was not explained was the delay in serving the motion to extend the time for filing the Application, especially with the City urging to have the matter addressed prior to the OLT hearing. The motion was not served until September 24, 2024, just a few weeks before the OLT hearing was to begin and almost two months after South Junction was aware that they needed to bring this motion because the Court had rejected their application. By the time they served their motion material, it was too late to seek an urgent hearing of their motion and/or the application and to have it determined before the OLT hearing. This delay caused significant prejudice to the Developer, who is entitled to rely on the decision of the OLT, unless that decision is appealed. It was not.
Prejudice:
[28] As a result of the delay in bringing the motion to extend the time for service and filing of their Application for Judicial Review, I find that there would be significant prejudice to the Developer, who is entitled to rely on the decision of the OLT. Further, the Developer withdrew the Heritage Appeal, relying on the City's settlement. The time for the Developer to take any action on that litigation has long passed, a further prejudice to the Developer.
No apparent grounds for relief:
[29] I find no apparent grounds for relief. When considering the merits of an application for judicial review, the Court must engage in a limited inquiry on the merits, to determine whether the moving party has satisfied its onus.
[30] South Junction did not appeal the decision of the OLT. I appreciate that South Junction was not a party to the OLT hearing, but they lost their party status because of their own actions/inaction. South Junction is attacking the underlying position taken by the City, when really this issue became moot once the OLT held a hearing and issued its decision. The position taken by South Junction in their application is really a collateral attack on the decision by the OLT.
[31] During the motion, South Junction advised that they were not pursuing the argument regarding the closed-door meeting or confidential instructions. South Junction submits that City Council did not act fairly or in good faith. Each City Councillor had the ability to vote on the motion and the position it would take in the litigation with the Developer. The Councillor representing South Junction voted in favour of the motion. There is no concern expressed regarding any individual councillor or their exercise of their individual rights and powers.
[32] In litigation, the City's lawyers take direction from City Council as a whole, which is their client. The City's position before the OLT is one that is consistent with the instructions provided by City Council. The OLT did not rubber stamp the settlement agreement but provided detailed reasons for accepting the amendment to the by-law. Had South Junction not lost its party status, they would have been a party at the hearing, providing evidence and submissions of their own, contrary to the position taken by City Council. The OLT decision is not under review or appeal.
[33] Finally, South Junctions submits that City Council did not provide notice of their motion to amend the by-laws. There was clear evidence that South Junction had notice, in an email dated April 27, 2023. Further, the issue was set out in the May 10, 2023, City Council agenda, which is publicly posted.
Order:
[34] Having found that there are no apparent grounds for relief and there will be prejudice suffered as a result of the delay, the motion to extend the time for filing an application for judicial review is dismissed.
SHORE J.
Released: August 23, 2024
CITATION: South Junction Triangle Grows Neighbourhood Association v. City of Toronto 2024 ONSC 4689
DIVISIONAL COURT FILE NO.: 541/23
DATE: 20240823
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
South Junction Triangle Grows Neighbourhood Association
Appellant
– and –
City of Toronto
Respondent
REASONS FOR decision
SHORE J.
Released: August 23, 2024
[^1]: An area bounded by Bloor Street to the north, Dundas Street to the south and between two railway lines on the east and west sides.