Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 19, 2022

CASE NO(S).: OLT-22-003994

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13

Appellant: 2654964 Ontario Inc

Applicant: 412 Dundas Developments Limited

Subject: Zoning By-law

Reference Number: 7990-22

Property Address: Block 270 on Plan 40M-2647 (West Side of Des Newman Blvd)

Municipality/UT: Whitby/Durham

OLT Case No: OLT-22-003994

OLT Lead Case No: OLT-22-003994

OLT Case Name: 2654964 Ontario Inc v Whitby (Town)

PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: 412 Dundas Developments Limited

Request for: Request for Dismissal Without a Hearing

Heard: October 3, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
412 Dundas Developments Inc. (“412”)	I. Kagan, S. Kagan, K. Stitt
2654964 Ontario Inc. (“Appellant”)	N. Nijhawan*, M. Nijhawan*
Town of Whitby (“Town”)	F. Santaguida

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON OCTOBER 3, 2022 AND ORDER OF THE TRIBUNAL

Part One: Introduction

1This matter concerned a motion brought by 412 to dismiss the Appellant’s Appeal (“Motion”) of the Town’s decision to grant the amendment of the Town’s Zoning By-law No. 1784 as set out in its By-law No. 7922 to permit a commercial development by 412 which included self-storage units (“Development”) located at Block 270 of Plan 40M - 2647 in the Town. The Motion Hearing was conducted by video conference on October 3, 2022 (“VH”).

2The materials before the Tribunal were:

(a) Motion Record of 412, which includes the Affidavit of Bryce Jordan, comprising 153 pages;

(b) Affidavit of Service of the Motion Record, comprising 11 pages; and

(c) The Book of Authorities of 412, comprising 8 tabs and 114 pages

3No materials and no formal response to the Motion Record was filed by the Appellant. The Appellant’s representatives explained that they knew that they should have prepared and filed responding materials and admitted that they failed to do so. In fact, they also stated that while they were not formally consenting to the relief sought by 412 they also ‘were not trying to hold up the Development project’ and had hoped to find a resolution to their Appeal through mediation or other discussions.

4Counsel for 412 noted that without prejudice discussions had occurred shortly before the VH, to no avail. The Tribunal noted that under neither its Rules of Practice and Procedure (“Rules”) nor pursuant to the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched 6. (“OLTA”), is mediation mandatorily imposed on Parties but is available in appropriate cases in the event that the Parties consent to same.

5Counsel for the Town appeared at the VH but took no active role, but did advise the Tribunal that the Town was not opposing the Motion. At the conclusion of the VH, the Tribunal granted the Motion and dismissed the Appellant’s Appeal with brief reasons and noted that this Decision would follow and would set out more fulsome details of the Tribunal’s ruling.

Part Two: The Applicable Test on a Motion for Dismissal

6In its Notice of Motion contained within the Motion Record, counsel for 412 relied on subsection 34(25) of the Planning Act, R.S.O. 1990, c. P.13 (“Planning Act”) and subsection 19(1)(c) of OLTA in seeking the dismissal of the Appeal in its entirety without holding a hearing.

7Section 34(25) of the Planning Act states:

Dismissal without hearing

34(25) Despite the Statutory Powers Procedure Act and subsection (24), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that,

i. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

ii. the appeal is not made in good faith or is frivolous or vexatious,

iii. the appeal is made only for the purpose of delay, or

iv. the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.

2. The appellant has not provided written reasons for the appeal.

3. The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection.

4. The appellant has not paid the fee charged by the Tribunal.

5. The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal.

2019, c. 9, Sched. 12, s. 6 (8); 2021, c. 4, Sched. 6, s. 80 (1).

[Emphasis added]

8Section 19(1)(c) of OLTA provides that:

Dismissal without a hearing

19 (1) Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing,

(a) if the party who brought the proceeding has not paid any fee required to be paid under this Act;

(b) if the party who brought the proceeding has not responded to a request by the Tribunal for further information within the time specified by the Tribunal;

(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;

(d) in any circumstance listed in subsection 4.6 (1) of the Statutory Powers Procedure Act; or

(e) in any circumstance provided for under any other Act.

[Emphasis added]

9East Beach Community Assn. v. Toronto (City) [1996] O.M.B.D. No.1890 (“East Beach”) has been described as the seminal decision in respect of dismissal motions brought under the Planning Act before the Tribunal. East Beach concerned the test under s. 34(25)(1.i) of the Planning Act and identified the factors the Tribunal must consider on a motion to dismiss without holding an appeal, which are:

(a) the authenticity of the reasons stated;

(b) whether there are issues that would affect a decision in a hearing; and

(c) whether the issues are worthy of an adjudicative process

10The above passage in East Beach has been consistently cited with approval in a number of decisions of the Tribunal and of the Divisional Court, most recently in Bacher v. GR (CAN) Investments et al., 2022 ONSC 2937 (“Bacher”). In Bacher, the Appellant Bacher sought leave to appeal a Tribunal Decision and the Court cited from East Beach as follows:

With respect to the tests … these provisions allow the Board to examine whether there has been disclosure of planning grounds that warrant a hearing. … The Board is entitled to examine the reasons stated to see whether they constitute genuine, legitimate and authentic planning reasons. This is not to say that the Board should take away the rights of appeal whimsically, readily and without serious consideration of the circumstances of each case. This does not allow the Board to make a hasty conclusion as to the merit of an issue. Nor does it mean that every appellant should draft the appeal with punctilious care and arm itself with iron-clad reason for fear of being struck down. What these particular provisions allow the Board to do is seek out whether there is authenticity in the reasons stated, whether there are issues that should affect a decision in a hearing and whether the issues are worthy of the adjudicative process.

[Emphasis added]

11The Divisional Court in Bacher went on to cite additional Tribunal decisions including the following passage:

Numerous OMB and Tribunal decisions on motions to dismiss have considered the evidentiary requirements for an appeal to survive such a motion. While expert evidence – planning or otherwise – is not required for an appeal to proceed to a hearing, the Tribunal will carefully consider such evidence when it is tendered during the motion. Where an appellant disagrees with data or expert analysis that support a proposed development, the Tribunal expects the appellant to present its own analysis in support of its appeal. The Tribunal therefore expects that when an appellant tenders evidence in response to a motion to dismiss its appeal, the evidence will support the case the appellant intends to make to the Tribunal at the hearing. Similarly, and in accordance with the long line of OMB and Tribunal cases on these motions, that evidence must rise above the level of mere speculation and apprehension if the appeal is to survive the motion.

[Emphasis added]

12Here, the Appellant actually presented no evidentiary basis – let alone any argument – as to why its Appeal ought not to be dismissed. Thus the Tribunal is forced to the conclusion that clearly the Appellant did not meet its onus as set out in East Beach, Bacher decisions or in numerous other Tribunal caselaw. Thus, this Tribunal was left with only the thorough material filed by 412 which is described and considered in Part Three below.

Part Three: The Evidence and Arguments Presented by 412 Support Outright Dismissal of this Appeal

13Counsel for 412 pointed out that the Appellant’s Appeal Form took issue only with the uses associated with the Development, namely the self-storage aspects only. Counsel pointed out that the Appeal Form can be summarized as follows:

a. the Appellant opposes commercial self-storage on the Subject Lands because the use is unfair to existing landowners;

b. the Appellant opposes commercial self-storage on the Subject Lands because the use is not permitted under the Town ZBL;

c. the Appellant opposes commercial self-storage on the Subject Lands because the use is better suited to areas zoned for industrial uses;

d. the Appellant opposes commercial self-storage on the Subject Lands because the use was not contemplated in the Town’s Urban Design Guidelines;

e. the Appellant opposes commercial self-storage on the Subject Lands because the use does not represent the highest and best use for the area;

f. the Appellant opposes commercial self-storage on the Subject Lands because the use will negatively impact the “vibrancy” of the area;

g. the Appellant opposes commercial self-storage on the Subject Lands because the use will create additional traffic in the adjacent residential neighbourhood;

h. the Appellant opposes commercial self-storage on the Subject Lands because the use will expose the area to risks of criminal activity; and

the Appellant opposes commercial self-storage on the Subject Lands on the basis that the use is already existing in other area throughout the Region of Durham.

[all emphasis added by 412’s counsel]

14412’s counsel also pointed out that:

(a) the Appeal only challenges the proposed use, commercial self-storage, but does not challenge any of the other provisions set out in ZBL 7900-22.

(b) The Appeal does not raise concerns with the test of ‘consistency’ concerning the Provincial Policy Statement, 2020 (“PPS”) or with the test of "conformity" concerning the Growth Plan for the Greater Golden Horseshoe (“GP”) or the Town’s Official Plan (“OP”). Section 34(19.0.1) of the Planning Act requires the Appeal to explain the reasons for failing any of those above noted tests, if the Appellant intends to allege such failure. The Appeal, however, provided no such reasons and thus failure of these tests (ie., PPS consistency, Growth Plan conformity, Town OP conformity) is not properly before the Tribunal; and

(c) The Appeal exclusively challenges the appropriateness of commercial self-storage as a permitted use on the subject lands but that planning question was already evaluated and finally determined, specifically for the subject lands, through OPA 125. OPA 125 is in full force and effect and is not before the Tribunal.

15Therefore, 412’s counsel argued that since the appropriateness of a commercial self-storage use is the only issue raised in the Appeal, since ZBL 7900-22 must conform to OPA 125, and since OPA 125 is in force and not before the Tribunal, the Appeal:

(a) does not “disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal”;

(b) “has no reasonable prospect of success”; and, therefore,

(c) “is being made only for the purpose of delay”.

16The Affidavit of Mr. Jordan supports the arguments made by counsel for 412. Mr. Jordan is a registered professional planner with over 40 years of experience and was involved in the submission of the applications. He was qualified by the Tribunal to provide opinion evidence on planning matters and reiterated in his testimony the conclusions set out in his Affidavit.

17Mr. Jordan noted the impact of OPA 125 as described in paragraph [14] above and further stated that it was his professional land use planning opinion that the proposed development is consistent with the PPS and conforms with the Growth Plan, the Durham Regional Official Plan and the overall intent, goals and objectives of the Town OP and that the proposed development represents good planning.

Part Four: Conclusions

18The Tribunal accepted the evidence of Mr. Jordan as set out in paragraphs [16] and [17], agreed with all of the arguments of counsel for 412 and was of the view that this Motion to Dismiss ought to be granted.

ORDER

19This Appeal shall be dismissed.

“William R. Middleton”

WILLIAM R. MIDDLETON

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.