Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 02, 2021
CASE NO(S).: PL160989
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Textbook (Ross Park) Inc.
Subject: Request to amend the Official Plan - Failure of the City of London to adopt the requested amendment
Existing Designation: Low Density Residential
Proposed Designated: Multi-family, High Density Residential
Purpose: To permit the development of a 15-storey apartment building with 199 residential units and commercial uses on the ground floor
Property Address/Description: 1234-1246 Richmond St.
Municipality: City of London
Approval Authority File No.: OZ-8552
OLT Case No.: PL160989
OLT File No.: PL160989
OLT Case Name: Textbook (Ross Park) Inc. v. London (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Textbook (Ross Park) Inc.
Subject: Application to amend Zoning By-law No. Z.-1 - Refusal or neglect of the City of London to make a decision
Existing Zoning: Residential R1 Special Provision (R1-5(3))
Proposed Zoning: Residential R9 Bonus (R9-7.H50.B-_)
Purpose: To permit the development of a 15-storey apartment building with 199 residential units and commercial uses on the ground floor
Property Address/Description: 1234-1246 Richmond St.
Municipality: City of London
Municipality File No.: OZ-8552
OLT Case No.: PL160989
OLT File No.: PL160990
PROCEEDING COMMENCED UNDER section 9 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, sched. 6, as amended, and Rule 8.2 of the Tribunal’s Rules of Practice and Procedure
Request by: 2411208 Ontario Inc.
Request for: Motion for Substitution
Heard: In writing
APPEARANCES:
Parties
Counsel
2411208 Ontario Inc.
Kristie Jennings
City of London
Aynsley Anderson
Vanetia R
Upper Thames River Conservation Authority
Analee Baroudi
DECISION DELIVERED BY S. JACOBS AND ORDER OF THE TRIBUNAL
INTRODUCTION
1In 2015, Textbook (Ross Park) Inc. (“Textbook”) applied to the City of London (the “City”) for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) to allow it to develop an apartment building at 1234-1246 Richmond Street (the “subject property”). The City failed to make a decision on the application within the time period required by the Planning Act, and Textbook appealed to the Tribunal in 2016. Textbook later appealed the City’s adoption of its new Official Plan, London Plan, as it pertained to Textbook’s property.
2In the five years that have passed since Textbook filed its appeals, the Tribunal has held five Case Management Conferences (“CMCs”) in an attempt to bring the appeals to a hearing. The Tribunal ordered the final CMC to be peremptory, indicating that it would dismiss the appeals if Textbook were not ready to schedule the hearing during that CMC. However, the day before the peremptory CMC, this Tribunal proceeding was stayed by Order of the Ontario the Superior Court of Justice due to Textbook’s impending bankruptcy and the appointment of a receiver to handle Textbook’s assets.
3The subject property was then sold to 2411208 Ontario Inc. (“241”). That corporation now brings a motion to the Tribunal to be substituted as the appellant in this proceeding. That motion is jointly contested by the City and the Upper Thames River Conservation Authority (“UTRCA”).
4In addition, the City and the UTRCA bring a joint motion to dismiss the appeals. Their motion to dismiss Textbook’s London Plan appeal is on the basis that Textbook never made oral or written submissions to the City as required by the Planning Act, R.S.O. 1990, c. P. 13, as amended (the “Act”), and therefore the appeal is not valid. They bring their joint motion to dismiss the OPA and ZBA appeals on three grounds: (1) that the appeals were made only for the purpose of delay; (2) that the Appellant has not responded to the Tribunal’s requests for information; and (3) that the applications and planning framework have changed significantly since 2016 and City council should be afforded a new opportunity, including a public process, to make a decision on these applications.
5There are three issues for the Tribunal to decide in these motions:
Whether Textbook had a valid London Plan appeal;
Whether 241, as the owner of the subject property, should be substituted as the appellant in Textbook’s appeals; and
Whether Textbook’s appeals should be dismissed due to delay and related grounds advanced by the City and UTRCA.
6The Tribunal had the benefit of reviewing the following materials the parties filed in support of their respective motions and responses:
Notice of Motion and Motion Record in support of the request for substitution, including the sworn affidavit evidence of Ira T. Kagan, as well as a Book of Authorities;
Joint Responding Motion Record from the City and UTRCA, including the sworn affidavit evidence of Michael Tomazincic, Kathleen Geraghty, Travis Macbeth, Hailee Verhoeven, and Tracy Annett, as well as a Joint Responding Factum and Book of Authorities;
Joint Notice of Motion and Motion Record in support of the City and UTRCA’s request to dismiss the appeals, including the sworn affidavit evidence of the same affiants as in their Responding Motion Record, as well as a Factum and Book of Authorities; and
Reply and Responding Motion Record from 241, including the sworn supplementary affidavit evidence of Mr. Kagan, as well as a Supplementary Book of Authorities.
7In addition, the Tribunal also had the benefit of its file, which included matters related to the Court-ordered stay. The parties provided little information in this regard in their respective motion materials.
8There was an error in 241’s motion for substitution, in that it was brought on behalf of the incorrect numbered company, 2355907 Ontario Inc., which is not the owner of the subject property. The error was identified by the City and UTRCA in their response to the motion, and was not explained until 241 filed its reply. As a result, much of the joint response to the substitution motion correctly focusses on the problem of seeking substitution for a corporation that seemingly has no relationship to the subject property nor the appeals. The Tribunal now understands that the substitution is being sought for 241, the owner of the subject lands, which intends to carry on with Textbook’s planned development.
9Before providing its disposition on each motion, the Tribunal finds it helpful to briefly outline the chronology of this unusual case.
Chronology of the Textbook Appeals
10Textbook made its application to the City in late 2015 for its proposed 17-storey apartment building with a commercial area on the ground floor. It later revised its application to reflect a 15-storey building with 199 apartment units and ground-floor commercial space. The City’s Planning and Environment Committee considered the applications at its meeting on September 16, 2016, which included a staff report from Mr. Tomazincic recommending refusal of the applications. The Committee recommended that council refer the applications back to staff for further consideration of the issues raised by the proposed building’s location within the UTRCA regulatory floodway.
11Within one week of that committee meeting, Textbook appealed the City’s non-decisions on its OPA and ZBA applications to the Tribunal’s predecessor, the Ontario Municipal Board (“Board” or “OMB”). It filed its London Plan appeal shortly after, in January 2017.
12Textbook’s appeals then prompted a series of CMCs, all of which were conducted by this panel. Just before the final CMC, the Court appointed a receiver to deal with all of Textbook’s assets, including the subject property. For ease of reference, the Tribunal outlines here the chronology of CMCs and other events relating to the subject property:
February 28, 2017: This was the first CMC for the OPA and ZBA appeals, where the Tribunal heard and granted requests for party status from the UTRCA, Susan Bentley, and Alex Rostas.
April 27, 2017: During this second CMC, the Tribunal scheduled a ten (10)-day hearing to begin on October 23, 2017 and granted a request for party status to 2377358 Ontario Limited and Creek Crest Holdings, which was the first mortgagee on the subject property. The Tribunal also approved a Procedural Order, including an issues list, for the proceeding.
September 15, 2017: The Tribunal convened a status telephone conference call at the mutual request of the parties to address the implications of Textbook’s recent financial difficulties on the upcoming hearing. Textbook appeared without counsel, and, with the consent of the parties, requested an adjournment of the October 2017 hearing. The Tribunal granted the adjournment and also ordered, at the City’s request, Textbook’s London Plan appeal to be heard together with its OPA and ZBA appeals.
December 1, 2017: The Tribunal convened a follow up status telephone conference call to discuss rescheduling the hearing. Textbook advised the Tribunal that it was not in a position to reschedule the hearing until it secured financing. The Tribunal scheduled another CMC, on March 2, 2018, on a peremptory basis, noting that if Textbook were not prepared at that CMC to schedule hearing dates, the Tribunal would dismiss its appeals.
March 1, 2018: The Court appointed MNP Ltd. as receiver for Textbook’s real property (the subject property) and other property, including the then-OMB proceeding. The Court ordered the OMB proceeding stayed and suspended pending leave of the Court or with written consent of the receiver. On the same day, the Court issued an Approval and Vesting Order, approving the receiver’s sale of the subject property, which included the OMB proceeding as a “purchased asset”, to Rise Real Estate Inc., in trust, and vesting in 241 (the “Vesting Order”). The approved sale agreement identified May 31, 2018 as the anticipated closing date.
March 2, 2018: The Tribunal convened a telephone conference call, however, having received the Court-ordered stay the day prior, the Tribunal and parties acknowledged that the Tribunal proceeding was stayed as of March 1, 2018. The court-appointed receiver participated in the call and advised the Tribunal that there was a purchaser for the subject property with an anticipated closing of May 31, 2018, and that the Tribunal proceeding would resume after that closing.
13The closing on the purchase of the subject property was delayed. The Tribunal received notice by email from the receiver on September 20, 2018, that the transaction closed on August 29, 2018. Mr. Kagan, in his affidavit filed in support of 241’s motion, indicates that 241 acquired the property from Textbook on May 31, 2018. The City and UTRCA, in their joint responding motion record, include the parcel registers for the subject property as exhibits to the Affidavit of Hailee Verhoven, a paralegal with the City who conducted the title searches. On all of the parcel registers, 241 is named on charge instruments dated August 29, 2018, consistent with the information from the receiver.
14As the receiver explained during the March 1, 2018 telephone conference call, the Board proceeding would resume upon the closing of the real estate transaction. This is consistent with the Tribunal’s interpretation of the Vesting Order and the actions of the parties in these motions.
15A review of the Tribunal’s file reveals periodic correspondence from Tribunal staff checking in on the status of this file in an effort to bring the proceeding back on line. At no time did 241 or its representative communicate with the Tribunal regarding these appeals and its desire to be substituted as the appellant. It was only through Tribunal staff efforts to communicate with the receiver and the other parties that the Tribunal learned that the new owner retained a land use planner, who then put the Tribunal in touch with a representative from Rise Real Estate in November 2020. The Tribunal was later advised that Mr. Kagan’s firm was retained by new owner, who would be seeking substitution in the appeals.
16The Tribunal allowed the parties time to determine whether the substitution could proceed on consent. When it became apparent that it would be contested, the Tribunal directed a motion to proceed in writing in February 2021, and, based on the mutual request of the parties, further directed the filing of motion materials to take place in June and July 2021.
PART I: THE VALIDITY OF TEXTBOOK’S LONDON PLAN APPEAL
17In order to appeal an approved official plan, the Act requires the would-be appellant to have made either written or oral submissions to council before it adopts the plan. This was true of the version of the Act that was in place at the time of Textbook’s appeal and it remains in the current version. The former is quoted here:
Appeal to O.M.B.
(36) Any of the following may, not later than 20 days after the day that the giving of notice under subsection (35) is completed, appeal all or part of the decision of the approval authority to the Municipal Board by filing a notice of appeal with the approval authority:
A person or public body who, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council.
The Minister.
In the case of a request to amend the plan, the person or public body that made the request. [Emphasis added].
18There is no dispute that Textbook did not make oral submissions at a public meeting or written submissions to City council with respect to London Plan. The Tribunal accepts the City’s uncontradicted Affidavit evidence that there is no record of Textbook having made the required oral or written submissions.
19It is certainly unfortunate, as 241 points out, that the City only discovered this so late in this proceeding. In fact, it was at the City’s request that the Tribunal previously determined it would hear Textbook’s London Plan appeal together with its OPA and ZBA appeals. However, the City’s omission does not, as 241 submits, create “an appeal by acquiescence”. The Tribunal has no authority to create an appeal. The Act is clear on what is required for a valid appeal of an official plan and Textbook did not meet those requirements.
20The Tribunal accordingly finds that Textbook does not have a valid London Plan appeal and will close its file.
21The Tribunal also notes 241’s submission that, should it not be substituted as the appellant in Textbook’s London Plan appeal and that appeal is dismissed, 241 will be required to make an application for a site-specific amendment to the London Plan. The Tribunal’s finding that Textbook did not have a valid London Plan appeal leads to the same result.
PART II: THE SUBSTITUTION MOTION
22The Tribunal frequently considers requests to substitute a party in circumstances where a property, with an intended development project and related appeals to the Tribunal, is sold and the new owner wishes to carry on the appeals. These requests are often uncontested and straightforward. That is not so in this case. While the parties generally agree that the Tribunal has jurisdiction to substitute 241 as the appellant, they disagree as to whether such substitution would result in prejudice that the Tribunal cannot compensate for by way of a costs award or adjournment.
23The City and UTRCA argue that there is significant prejudice to the parties with respect to time and costs in these delayed proceedings, as well as prejudice to the public interest given a changing planning policy framework as it pertains to the subject property. In contrast, 241 argues that prejudice would only result if it were not substituted, and, given the bankrupt status of Textbook, the appeals are then dismissed. This, in its submission, would force 241 to start the application process over and likely result in new appeals and hearing events before the Tribunal.
24Generally, the Tribunal’s jurisdiction to provide the requested relief is derived from s. 9(1) of the Ontario Land Tribunal Act, 2021, as amended (the “OLTA”), which provides:
Orders
9 (1) The Tribunal has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred on the Tribunal under this or any other Act.
The OLTA, in s. 13, also allows the Tribunal to make rules governing its practices and procedures.
25The Tribunal’s Rules of Practice and Procedure (“Rules”) address the Tribunal’s ability to add or substitute parties in Rule 8.2:
8.2 Power of Tribunal to Add or Substitute Parties The Tribunal may add or substitute a party to a proceeding when that person satisfies any applicable legislative tests necessary to be a party and their interest may be transferred or transmitted to another party to be added or substituted provided their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.
26The Tribunal typically accepts that the presence of a development proponent as a party to an appeal is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding. After all, those issues relate to that proponent’s property and its intended development. Rarely is there any dispute about adding the proponent as a party, even when the proponent is not the original property owner who launched the appeals. In such circumstances, the Tribunal respects the importance of preserving rights to litigation that is already before the Tribunal.
27The unusual circumstance in this case is that 241 has emerged as the new proponent in a proceeding that has been through five hearing events and significant delay. The first two years of delay can largely be attributed to Textbook. There was then the Court-ordered stay, followed by a failure by 241 to approach the Tribunal to seek substitution when it became the owner of the subject property.
28In cases where a substitution is contested, the Tribunal and its predecessors have turned to Rule 5.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended (“Rules of Civil Procedure”). Rule 1.4 of the Tribunal’s own Rules enables the Tribunal to do so when a matter is not addressed by its Rules. It also allows the Tribunal to “do whatever is necessary to adjudicate effectively and completely to resolve the merits of any dispute on any matter.”
29Rule 5.04(2) of the Rules of Civil Procedure allows substitution of a party unless prejudice results that cannot be compensated for by costs or an adjournment:
Adding, Deleting or Substituting Parties
(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
30The Board relied on Rule 5.04(2) to allow three individual appellants to be substituted by a corporation they formed after filing their appeals (Burfoot v. Kingston (City), 2017 CarswellOnt 17400, 3 O.M.B.R. (2d) 246 (Burfoot)). When referencing the opposing parties’ shared concern of the prejudice that could result if the Board granted the substitution, Member Lanthier noted that the timing of such a request is significant. In granting the substitution, the Board made the following findings:
The substitution order would not increase the scope or length of the hearing, and very likely would do the opposite;
The motion was brought in a timely fashion with adequate notice; the potential substitution motion was raised at the first prehearing conference and the motion was heard during the second;
There was adequate time between the substitution motion and the merits hearing, to allow the parties to prepare and organize themselves; and
The same counsel who represented the individual appellants would represent the substituted corporate appellant, and so there were no concerns of delay for new counsel to become involved.
31While the parties submitted several Tribunal authorities in support of their respective motions and responses, none are analogous to the circumstances of this case. This may be due to the fairly routine treatment by the Tribunal of a new property owner seeking substitution in appeals pertaining to that property, which often proceed on consent of the other parties. However, the Tribunal does find the discussion and application of Rule 5.04(2) in Burfoot to be of assistance in this case.
32Here, 241 argues that no prejudice would result from its substitution as the appellant. It submits that if the Tribunal were to deny the substitution, all parties would be prejudiced because 241 would be required to re-apply to the City and would likely appeal again to the Tribunal. The process would start from the beginning and would not be an efficient use of the parties’ nor the Tribunal’s time and resources.
33Additionally, 241 relies on Rule 5.04 of the Rules of Civil Procedure in its Reply, in support of its submission that the Tribunal should overlook its earlier incorrect identification of the numbered corporation seeking substitution. In response to that submission, the City and UTRCA argue that the proper name of the numbered corporation is material evidence that 241 should not be permitted to adduce in its Reply. They argue that Tribunal Rule 21.3 limits reply to “any new evidence or issues in the responses that the moving party could not have addressed at the outset of their case.” They submit that the moving party could have been diligent in the first instance to ensure it had the proper name of the numbered corporation for which it sought the substitution.
34The City and UTRCA submit that the substitution will result in prejudice due to delay as well as prejudice to the public interest. They argue that this already-delayed proceeding is now further delayed by 241’s request for substitution, inexplicably brought more than two years after it purchased the subject property from Textbook’s receiver. This proceeding, in their shared submission, has been a strain on taxpayer resources.
35There is also prejudice, according to the City and UTRCA, from a public interest perspective, as the planning policy and physical landscape around the subject property has changed significantly from when Textbook filed its appeals in 2016. They argue that if 241 is substituted to carry on these appeals, the Tribunal would be allowing 241 to hang on to an outdated planning policy framework. They point out that London Plan’s environmental policies are now in force and affect this property. Also, because Textbook did not have a valid appeal of London Plan, 241 will require a site-specific amendment to that plan. That is a separate process 241 will have to begin with the City outside this proceeding.
36The City and UTRCA also argue that the property is in a floodway where development is prohibited. This is not a new issue in this proceeding as it has long been on the issues list. The fact that London Plan’s environmental policies are now in force is a new development in this proceeding, one that was not specifically addressed in the issues list. Rather, the issues list makes only two references to London Plan.
37The first, on UTRCA’s issues list, queries what consideration should be given to London Plan in evaluating the OPA and ZBA. At the time, presumably, this issue contemplated the parties making submissions as to whether the under-appeal London Plan policies should apply to Textbook’s OPA and ZBA appeals.
38The second was the sole issue Textbook included on the list, and was predicated on the Tribunal ordering its London Plan appeal to be heard together with its OPA and ZBA appeals. It reads as follows: Should the London Plan include a site-specific policy/exception, applicable to the subject lands, to permit a development having a height greater than 8-12 storeys? In its Notice of Motion, 241 concedes that if Textbook’s London Plan appeal is dismissed, 241 will be required to apply for a site-specific amendment to London Plan to facilitate its intended development of the subject property.
39With respect to the physical landscape, the City and UTRCA submit that, while Textbook had proposed to fund $750,000 for the improvement of the adjacent Ross Park as part of its request to the City for additional density (in accordance with s. 37 of the Act), that proposal is now redundant. The City has gone ahead with the improvements to Ross Park in the time that has elapsed. Therefore, any development of the subject property would require a new proposal for section 37 contributions. The City submits that its priorities for such contributions have shifted since Textbook filed its application and it is in the public interest to let the public process unfold with 241 and City council. In response, 241 submits that these discussions can unfold during the hearing process and that the issue of section 37 contributions can be adjudicated by the Tribunal, if necessary.
40Referencing Burfoot, the City and UTRCA also rely on the significance of timing for a request for substitution so as to not unduly delay a proceeding. Here, 241 provides no explanation as to why it did not bring its request earlier, having become the owner of the subject property in 2018. In fact, it was the Tribunal’s repeated efforts to receive a status update that eventually prompted this motion.
41This, in the Tribunal’s view, raises a question as to 241’s role in this proceeding, and how it would be of assistance to the Tribunal in adjudicating these appeals. So far, 241 has not shown diligence in its intended pursuit of Textbook’s appeals. A new property owner who wishes to assume the role of an appellant has an obligation to inform itself of all circumstances surrounding the appeal and to pursue it diligently and expeditiously.
42There is no doubt 241 would have been aware of these appeals, as reflected in the Court orders and the inclusion of the OMB proceeding as a purchased asset in its purchase of the subject property. In the normal course, the Tribunal expects such a purchaser to review the information pertaining to such proceedings. That would quickly lead, in this case, to the discovery that the Tribunal was prepared to dismiss the appeals due to Texbook’s delay and failure to be prepared to proceed to a hearing. In such an unusual circumstance, the Tribunal would have expected 241 to be in touch with the Tribunal at its earliest opportunity to request substitution and demonstrate its dedication to pursuing the appeals expeditiously. It would not expect, as occurred here, for the Tribunal to have to initiate numerous inquiries to determine the status of the matter.
43The Tribunal also expects an owner seeking substitution to be diligent and expeditious in pursing its motion for same. In referring to the incorrect numbered corporation in its Notice of Motion, 241 caused the City and UTRCA to devote additional time and resources to address what it, in its Reply, describes as an inadvertent error. Though the Tribunal accepts the error to be unintentional, it finds that 241 has not demonstrated that it will be of assistance to the Tribunal as Rule 8.2 requires.
44Turning now to the matter of prejudice and Rule 5.04(2) of the Rules of Civil Procedure, similar considerations apply. It is true, as 241 submits, that there will be additional cost and delay for all parties if 241 is required to submit new planning applications and then appeals the City’s decisions (or non-decisions) to the Tribunal. However, 241 concedes that it is already in that position with respect to London Plan.
45As this matter now stands, 241 must apply to the City for a site-specific amendment to London Plan. If the Tribunal were inclined to grant 241’s request for substitution on the OPA and ZBA appeals, it follows that those appeals may need to be placed on hold while 241’s application to amend London Plan works its way through the City’s process, in order to avoid a bifurcated proceeding. However, that course of action would cause further delay in this proceeding. The Tribunal put Textbook on notice, in December 2017, that further delay in this proceeding would not be tolerated.
46Considering all of these circumstances as a whole, the Tribunal finds that substituting 241 as the appellant in the OPA and ZBA appeals would result in prejudice to both the Tribunal—which has now held five CMCs and a motion with no scheduled hearing in these appeals—and to the parties who continue to expend costs and resources on this delayed proceeding.
47There is, the Tribunal also finds, a unique aspect to the prejudice in this case. The delay has resulted in the subject property standing frozen in time while the planning policy and physical landscape around it has changed. Certainly, these are matters that are properly within and often dealt with in the course of the Tribunal’s adjudication. However, in this case, the development of Ross Park, the evolution of planning policies through the now partially in-force London Plan, and 241’s need for an amendment to London Plan, would complicate the Tribunal’s adjudication were the appeals to proceed to a hearing. More importantly, the public interest would not be served in doing so. These are matters that are more appropriately addressed through a public process among the City, its relevant staff and agencies, and 241. They will be undergoing this process regardless with respect to 241’s request for a site-specific amendment to London Plan.
48To substitute 241 as the appellant in this proceeding would amount to retrofitting these appeals to suit a proponent who has neither diligently nor expeditiously pursued its interest in advancing the appeals. It would allow that appellant to cling to an outdated planning policy framework, contrary to the public interest. In these circumstances, the Tribunal finds that neither the prejudice to the parties, the Tribunal, nor the public interest can be compensated for by a costs award or adjournment as contemplated by Rule 5.04(2) if the Rules of Civil Procedure.
49The Tribunal therefore denies 241’s motion for substitution.
PART III: THE MOTIONS TO DISMISS THE OPA AND ZBA APPEALS
50The City and UTRCA jointly brought a motion to dismiss the OPA and ZBA appeals in accordance with s. 17(45) and 34(25) of the Act, respectively, which allow the Tribunal to dismiss an appeal without a hearing where it is of the opinion that the appeal is made only for the purpose of delay or an appellant has not responded to the Tribunal’s request for further information within a specified time period.
51There are other grounds enumerated for such a dismissal, but those are the two upon which the City and UTRCA rely. The relevant portion of s. 34(25), as it read at the time of Textbook’s appeals and mirrors the language in s. 17(45), is reproduced here for reference:
Dismissal without hearing
(25) Despite the Statutory Powers Procedure Act and subsections (11.0.2) and (24), the Municipal Board may dismiss all or part of an appeal without holding a hearing, on its own initiative or on the motion of any party, if,
(a) it is of the opinion that,
(iii) the appeal is made only for the purpose of delay, or
(d) the appellant has not responded to a request by the Municipal Board for further information within the time specified by the Board.
52In this case, the Tribunal finds the delay ground to be most relevant. Due to the status of Textbook and the Court-ordered stay, the Tribunal finds that dismissal due to a failure to respond to the Tribunal’s request for further information is not applicable.
53Having denied 241’s motion for substitution, the Tribunal is left with the OPA and ZBA appeals of a now bankrupt appellant, Textbook. All parties to these motions agree that in this circumstance, it is appropriate for the Tribunal to dismiss the appeals.
54For the reasons discussed in Part II of this Decision, the Tribunal agrees with the City and UTRCA that Textbook’s appeals were made for the purpose of delay. Even if the Tribunal had granted 241’s motion for substitution, it would have no trouble finding that 241 has carried on Textbook’s pattern of delay and, accordingly, dismissing the appeals in accordance with ss. 17(45) and 34(25) of the Act. The Tribunal also notes that 241 provided no response to the City and UTRCA’s allegation of delay.
55The City and UTRCA also submit that the Tribunal could dismiss the appeals on the basis that the applications are substantially different from those that were before City council at the time of its decision, in accordance with ss. 17(45.1) and 34(25.1.1) of the Act. For this, they rely on the fact that Textbook’s proposed $750,000 contribution to Ross Park is now redundant and must be renegotiated. It is not necessary for the Tribunal to make a ruling on this alternative motion ground, given the Tribunal’s earlier findings.
56The Tribunal therefore dismisses Textbook’s OPA and ZBA appeals.
CONCLUSION
57Based on its careful review of all filed motion and supporting materials, including affidavit evidence, the Tribunal finds that Textbook does not have a valid London Plan appeal. It will accordingly close its file in that matter. That finding has implications for the other requests before the Tribunal. There has been a pattern of delay in this proceeding, first by Textbook and carried on by 241, which would be exacerbated were the parties and the Tribunal to await the outcome of 241’s application for a site-specific amendment to London Plan. Nor would a bifurcated proceeding serve the public interest. The only way to avoid prejudice—to the parties, the Tribunal, and the public—is for 241’s applications to be considered together, by the City and its staff, in the current and complete land use planning context.
58This Tribunal expects appellants to pursue their appeals diligently and expeditiously. It is a principle that is well documented in Tribunal decisions. That same expectation extends to a new property owner who wishes to step into the shoes of an appellant, as reflected in Tribunal Rule 8.2. In this case, 241 did not meet those requirements and will not be substituted as the appellant.
59Given the Tribunal’s denial of the substitution and Textbook’s status—as a bankrupt appellant who will not carry on these appeals—the Tribunal will dismiss its OPA and ZBA appeals. Even if 241 had been substituted as the appellant, the Tribunal finds there are sufficient grounds to dismiss the appeals on the basis of delay. The public interest is better served by allowing the development of this property to be considered through the public process and policy context required by the Act.
60Given the unusual circumstances of this case and the Tribunal’s rulings in this Decision, it sees no basis for an award of costs as requested by each party in their respective motions.
ORDER
61THE TRIBUNAL ORDERS that the motion by 2411208 Ontario Inc. for party substitution is denied.
62THE TRIBUNAL FURTHER ORDERS that the joint motion by the City of London and the Upper Thames River Conservation Authority is granted and the appeals by Textbook (Ross Park) Inc. contained in Tribunal file numbers PL160989 and PL160990 are dismissed.
“S. Jacobs”
S. JACOBS
VICE-CHAIR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.