CITATION: Voices of Willowdale Inc. v. City of Toronto, 2025 ONSC 1906
DIVISIONAL COURT FILE NO.: DC-24-00000181-00JR
DATE: 20250326
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SHORE, MCSWEENEY, DAVIES
BETWEEN:
Eric Gillespie, for the Applicant
Georgia Tanner and Christopher Henderson, for the Respondent
Voices of Willowdale Inc.
Applicant
– and –
City of Toronto
Respondent
– and –
Ontario Land Tribunal
Respondent
Kathleen Coulter and Ariel Chih,
Counsel for the Ontario Land Tribunal
HEARD: November 20, 2024
REASONS FOR DECISION
Shore J.
Overview
[1] This application stems from the City of Toronto's decision to adopt a zoning by-law to permit the construction of a three-story apartment building for people leaving homelessness. The new development would be in addition to the existing four-story building on the property, which houses 600 senior citizens.
[2] The Applicant in this case is Voices of Willowdale ("VOW" or the "Applicant"), an organization made up of concerned community members. The Applicant opposed the by-law amendment. Their position was that the development is incompatible with the seniors’ housing currently on the property. Alternatively, VOW argued that the development should be zoned solely for senior citizens leaving homelessness.
[3] VOW is seeking judicial review of the decision of the Chair of the Ontario Land Tribunal (the “Chair”) (the “Review Decision”) dismissing their request to reconsider the Ontario Land Tribunal’s (the "Tribunal" or "OLT") decision (the "Merits Decision").
[4] For the reasons below, the application for judicial review is dismissed without costs.
Background:
[5] The application for judicial review comes after a series of legal steps taken by various organizations on behalf of the concerned community members following the City’s decision to approve of a zoning by-law amendment for a parcel of land at 175 Cummer Avenue (the “Subject Property”). Willowdale Manor, a housing complex for seniors, already occupies part of the Subject Property.
[6] On July 22, 2022, the City Council of the City of Toronto (the "City") adopted zoning by-law Amendment 818-2022. The amendment permits a housing development on the Subject Property for people leaving homelessness. The amendment contemplates that Willowdale Manor would remain on the property.
[7] LiVante Holdings (Cummer) Inc. ("LiVante") and Bayview Cummer Neighbourhood Association Inc ("BCNA") each appealed the City's decision to the Tribunal. The Tribunal granted non-appellant party status to VOW. The same counsel represented LiVante, BCNA and VOW (together, the "Common Interest Parties") at the Tribunal hearing.
[8] The sole issue before the Tribunal was whether the proposed development would be compatible with the existing Willowdale Manor. Before the Tribunal, the Common Interest Parties submitted that for the new development to be compatible with Willowdale Manor, the new development should be restricted senior citizens leaving homelessness.
[9] Following a three-day hearing, the Tribunal dismissed the appeals for reasons set out in the Merits Decision dated January 2, 2024.
[10] On January 31, 2024, LiVante and BCNA brought a request for review. VOW was not a party to the request for review.
[11] All three Common Interest Parties also brought a motion for leave to appeal the Merits Decision to the Divisional Court. The motion for leave to appeal was held in abeyance pending the Review Decision.
[12] On February 22, 2024, the Tribunal Chair dismissed the request for review. He found that the request failed to establish a convincing and compelling case that the Merits Decision contained an error of fact or law sufficient to warrant the exercise of his review powers.
[13] VOW alone brought this application for judicial review of the Review Decision. VOW also sought leave to appeal the Review Decision under s. 24(1) of the Ontario Land Tribunal Act (“the OLTA”). On May 17, 2024, this Court denied leave to appeal. So, the only remaining issue before this Court is VOW’s application for judicial review of the Review Decision.
Issues
[14] As a preliminary issue, the City argued that VOW should not be permitted to proceed with the application for judicial review because VOW’s judicial review application raises the same issues as its motion for leave to appeal, which was dismissed. The City submitted that VOW is estopped from litigating the same issues in its application for judicial review. The Tribunal also took the position that the Court should not exercise its jurisdiction to hear the judicial review application.
[15] VOW raised the following issues on the merits of the application for judicial review:
(a) Did the Tribunal err by finding it was impermissible to zone the Subject Property exclusively for senior citizens, but still permit Willowdale Manor to be zoned for senior citizens?
(b) Was there a breach of procedural fairness by allowing certain inappropriate oral and written submissions by the City without explicitly expressing concerns?
[16] I address each of these questions in order after briefly setting out the applicable standard of review.
Standard of Review on an Application for Judicial Review
[17] The presumptive standard of review on the merits of an administrative decision is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653. A reasonable decision is one that is based on internally coherent reasoning and is justified considering the legal and factual constraints that bear on the decision. There can be a range of reasonable decisions, and the Court will not interfere unless the decision is unreasonable.
[18] Regarding breaches of procedural fairness, this Court must determine whether the requisite level of procedural fairness was granted by applying the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
Should we exercise our discretion to hear the judicial review application in light of the ruling on the motion for leave to appeal?
[19] VOW brought a motion for leave to appeal under s. 24 of the OLTA, which permits an appeal to this Court, with leave, on questions of law.
[20] On May 17, 2024, the motion for leave to appeal was dismissed. As is the practice in this Court, no reasons were provided.
[21] The City argues that VOW should not be permitted to proceed with judicial review on issues of law it raised in its notice of application for leave to appeal. The City argues VOW had a route to appeal errors of law and is now estopped from raising the same issues for which they were denied leave. The City submits that judicial review is a remedy of last resort and this Court should not exercise its discretion to hear the judicial review application because VOW had a full opportunity to raise any legal errors in its leave application.
[22] The Tribunal also submits that the Applicant should not be permitted to raise the same issues in their judicial review application that were raised in its leave motion.
[23] In Vavilov, the Supreme Court of Canada held that a right of appeal on a question of law does not preclude an individual from seeking judicial review for questions not dealt within the appeal.
[24] This Court was faced with a decision whether to consider an application for judicial review even though a statutory appeal had been filed, in Shearer v. Oz, 2024 ONSC 1723. In Shearer, both the appeal and the application for judicial review were before the same Divisional Court panel. The Court heard the appeal on a question of law. The Court also exercised its jurisdiction to hear the application for judicial review on questions of fact or mixed fact and law. Corbett J., stated at para. 32 that:
In respect to the application for judicial review, this court will not entertain the application to the extent that its substance is addressed adequately by another process. In this case, the "other process" is the appeal. The only issues before us that could form a basis for judicial review that this court will entertain, therefore, are questions of fact, mixed fact and law (where there is no extricable question of law) and exercises of discretion, all of which are reviewed on a standard of reasonableness in an application for judicial review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
[25] This Court dismissed VOW's motion for leave to appeal without reasons. In oral argument during this application hearing, the City conceded that some of the issues raised in the motion for leave to appeal were ones of mixed fact and law and, therefore, outside the scope of a statutory appeal. I am satisfied that all the issues raised in this application for judicial review are either questions of fact, or questions of mixed fact and law with no extricable questions of law. Those issues could not have been dealt with in an appeal under s. 24 of the OLTA. Judicial review is still available to VOW on issues of fact, or mixed fact and law and the principle of issue estoppel does not arise. As a result, I find that this is an appropriate case in which to exercise our discretion to hear the application for judicial review notwithstanding the unsuccessful application for leave to appeal: Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 SCR 713.
Is the decision unreasonable?
[26] VOW submits that the Chair’s decision dismissing the request for review and upholding the Tribunal’s decision to dismiss the appeal of the City’s decision is unreasonable because:
(a) The Chair erred in finding that the Tribunal’s decision was not internally inconsistent.
(b) The Chair erred in finding that the new permitted land use was not inconsistent with the Provincial Planning Statement; and
(c) The Chair erred in finding that the new permitted land use is not incompatible with the existing land use;
[27] In determining whether the Chair’s review decision was unreasonable, this Court must consider that the Tribunal has specialized expertise to adjudicate questions of law, fact, and policy within its jurisdiction. The Tribunal's expertise includes the interpretation and application of the Planning Act and related land use planning and development legislation, provincial plans, the PPS, municipal official plans, and zoning by-laws. The Tribunal’s decision is to be afforded considerable deference.
[28] The OLTA gives the Board broad discretion to “review, rescind or vary” any of its decisions or order: OLTA, s. 23. The Tribunal’s Rules of Practice and Procedure limits the circumstances in which the Chair may grant a request for a review. Rule 25.7 states:
The Chair may exercise their discretion and grant a request and order a rehearing of the proceeding only if the Chair is satisfied that the request for review raises a convincing and compelling case that the Tribunal:
a) acted outside its jurisdiction;
b) violated the rules of natural justice or procedural fairness, including those against bias;
c) made an error of law or fact such that the Tribunal would likely have reached a different decision;
d) heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
e) should consider evidence which was not available at the time of the hearing, but that is credible and could have affected the result.
[29] The review process is not intended to allow the parties to re-litigate the case. The Chair stated at the outset that:
[A] significant portion of the Request, at its core, amounts to re-argument of matters that were properly before the Tribunal during its hearing on the merits. The findings challenged by the Requestor were addressed in detail throughout the Decision, with reference to the opinion evidence and submissions of both parties. Other aspects of the Request, while perhaps concerning, do not fall within any of the grounds set out under Rule 25.7 and so are not matters upon which the Chair may exercise discretion in granting a request for review.
[30] The Chair found that the Common Interest Parties had not established grounds to set aside the Tribunal’s decision.
[31] With that in mind, I turn to the issues raised by the Applicant.
i. The Decision is internally consistent
[32] VOW argues that the Tribunal’s decision is internally inconsistent, and it was therefore, unreasonable for the Chair to uphold it. VOW argues that the Tribunal’s decision is internally inconsistent because it found the new development could not be zoned solely for senior citizens when the other portion of the same site, Willowdale Manor, is zoned in exactly that manner.
[33] When Willowdale Manor was zoned, that by-law restricted the population to senior citizens. That by-law was not appealed and was not before the Tribunal. The Tribunal specifically states in its decision that had that by-law been appealed, the debate would have been whether it was permissible to limit that population to senior citizens, and there would have had to be evidence demonstrating that age discrimination was appropriate in those circumstances. However, the issue of whether seniors are an equity-seeking group in need of special housing at Willowdale Manner was not before the Tribunal for consideration in the appeal from the City’s decision to permit housing for people leaving homelessness on the same site.
[34] The Chair also found that "the existing zoning on the site remains unchanged and that the site currently accommodates a residence for seniors. The by-law that was passed at the time Willowdale Manor was zoned was not appealed to the Tribunal." In other words, the Chair found that Tribunal could only address the zoning issue before it, namely the zoning of the new development, not the propriety of an earlier by-law.
[35] On this issue, the Chair stated that “I am satisfied based on the Tribunal’s consideration of the submissions made on this point that the Tribunal made a determination through its specialized expertise and I cannot agree that the Tribunal erred”.
[36] The Tribunal is a creature of statute. Its powers are limited to the planning instrument that is before it on appeal. The Chair was correct that the Tribunal cannot amend a by-law that was not appealed. The only issue before the Tribunal was related to the proposed development.
[37] The alleged inconsistency has been satisfactorily explained and I do not find the decision to be unreasonable on the grounds that it is internally inconsistent, irrational, or untenable.
ii. The decision is consistent with the Provincial Planning statement
[38] The Tribunal also heard submissions on whether restricting the proposed development to senior citizens is consistent with the Provincial Planning Statement (PPS). The Tribunal found that limiting the new development to senior citizens would be inconsistent with the PPS and impermissible.
[39] Decisions affecting planning matters "shall be consistent with" policy statements issued under the Planning Act, including the Provincial Planning Statement: Planning Act, s. 3. Section 4.4 of the PPS states that it must be implemented in a manner that is consistent with the Human Rights Code, R.S.O. 1990, c. H.19, and the Canadian Charter of Rights and Freedoms. In other words, any planning decision must comply with the Human Rights Code and the Charter.
[40] The Tribunal found that limiting the entire Subject Property to senior citizens would be inconsistent with the PPS because it would limit the occupancy of the proposed building in a way that violates the equality rights in Human Rights Code and the Charter. Section 3 of the Human Rights Code, and s. 15 of the Charter provide that every person has the right to equal treatment without discrimination with respect to age.
[41] While there are circumstances under which age restrictions have been permitted, the Tribunal found that the evidence did not to support the Applicant’s position that the new development should be zoned for senior citizens only. The Tribunal found"regulating the user of the land or regulating based on concerns about who the occupants are or will be, constitutes people zoning and is illegal, absent specific legislative exception."
[42] The Chair agreed with the Tribunal’s decision adding the words "for senior citizens" to the zoning by-law would unreasonably limit the occupancy based on age and would be inconsistent with the PPS. The Chair, therefore, found that the Tribunal’s decision was reasonable.
[43] While the words "illegal" and "impermissible" may not be the language I would have used, it was reasonable for the Tribunal to find that limiting the zoning to senior citizens would be inconsistent with the PPS and not appropriate in these circumstances. It was also reasonable for the Chair to uphold that finding.
iii. The amended permitted land use is compatible with the existing land use
[44] The Common Interest Parties made submissions before the Tribunal that the proposed new development on the Subject Property was not compatible with Willowdale Manor, in that it would fundamentally change the character of the property and the surrounding area. They argued the by-law amendment should require the entire Subject Property, not just Willowdale Manor, be zoned for senior citizens only.
[45] On the issue of compatibility between the existing and new development, the Tribunal found that the Applicants did not proffer evidence to support their position that the amendment would result in development that is incompatible with Willowdale Manor. In the review decision, the Chair found the Tribunal made no error in making that finding.
[46] In light of the findings above, including the finding that:
(a) the decision was internally consistent,
(b) the decision was consistent with the Provincial Planning Statement, and
(c) the new permitted land use was not incompatible with the existing land use,
I find the Chair's exercise of discretion was reasonable in the circumstances.
Inappropriate submissions
[47] During oral submissions before the Tribunal, the City described the Applicant’s request to zone the subject property for senior citizens as “a dangerous precedent.” The City compared VOW’s position to historical policies that resulted in atrocious examples of segregation throughout history. Those comments were inappropriate, out of context and offensive ("offensive submissions"). The offensive submissions were repeated in the written submissions provided to the Tribunal after the closing of the oral submissions.
[48] VOW submits that the Tribunal erred by not expressing its disproval of the offensive submissions during the hearing. VOW argues the Tribunal’s failure to censure the City’s counsel rendered the hearing procedural unfair.
[49] The Applicant raised this issue in its request for review. The Common Interest Parties asked the Chair to remit the matter back to the Tribunal with directions as to the appropriate procedure. VOW made the same argument before this Court.
[50] I agree that the comments were entirely inappropriate and inflammatory. However, I am not satisfied that is a basis to refer the matter back to the Tribunal for several reasons.
[51] First, we are not satisfied the hearing was unfair because the Tribunal did not refer to or rely on the inappropriate comments in its decision. I disagree with the with the Applicant’s position that by remaining silent during submissions that the Tribunal establishes “a very disturbing precedent” and that they are in some way accepting of the statements.
[52] Second, in the Review Decision, the Chair clearly condemned the comments. The Chair stated as follows:
[T]hese statements were inappropriate and do not reflect the type of advocacy that the Tribunal expects from professionals appearing before it. Such broad statements that reference historical atrocities do not have any bearing on the land use planning issues before the Tribunal and the Tribunal does not condone this approach…While I recognize why the Requestor would want to emphasize the inappropriate nature of these comments, I do not find that the issue raises any of the grounds enumerated in Rule 25.7.
[53] There is no reason to remit the matter back. The Chair denounced the City’s conduct on review. This Court has denounced the comments as being inappropriate and inflammatory. Nothing more can be accomplished by remitting the matter back.
[54] Third, the Tribunal has the power to control its own process. It was entirely within the Tribunal's discretion to determine whether and how to deal with inappropriate submissions. While it would have been preferable for the Tribunal to have addressed the comments when they were made and to have expressly disavowed them in the Merits Decision, the issue was fully addressed by the Chair in the review decision and the way the Chair addressed the issue was reasonable.
Costs
[55] The issue of costs is between the VOW and the City of Toronto. No costs are sought by or against the Tribunal.
[56] Counsel agreed on $7,500 as the quantum of costs but disagree on entitlement.
[57] Ordinarily, the City would be presumptively entitled to costs as the successful party on this application for judicial review. VOW argues that even if the City is successful, no costs should be awarded in favour of the City if we find the City’s submissions were inappropriate. I agree.
[58] When offered the opportunity to address the offensive statements during the hearing before this Court, counsel for the City (who was not the counsel who made the offensive submissions before the Tribunal) defended the comments and tried to deflect the issue by blaming the Applicants for advocating against people leaving homelessness.
[59] Counsel for the City represents a public body and serves in a public interest role. Although this Court has previously held that government lawyers are not held to a higher standard under the LSO Rules of Professional Conduct, government lawyers are accountable to the public the way justice is administered. The City must maintain public confidence in the system, which includes respecting diversity, acting with integrity and proceeding with objectivity. The offensive submissions made by counsel for the City were inconsistent with its role as counsel for a public body. Given the conduct of the City in the hearing before this Court and below, I find it is appropriate not to award the City costs on this judicial review application.
“Shore J.”
I agree “McSweeney J.”
I agree “Davies J.”
Released: March 26, 2025
CITATION: Voices of Willowdale Inc. v. City of Toronto, 2025 ONSC 1906
DIVISIONAL COURT FILE NO.: DC-24-00000181-00JR
DATE: 20250326
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SHORE, McSWEENEY, DAVIES, J.J.
BETWEEN:
Voices of Willowdale Inc.
Applicant
– and –
City of Toronto
Respondent
REASONS FOR DECISION
Released: March 26, 2025