1984396 Ontario Inc. v. Niagara (Regional Municipality), 2022 CanLII 28196

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 07, 2022

CASE NO(S).: OLT-22-002389 (Formerly PL210262)

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 1984396 Ontario Inc.

Subject: Proposed Official Plan Amendment No. 26

Municipality: City of St. Catharines

OLT Case No.: OLT-22-002389

Legacy Case No.: PL210262

OLT Lead Case No.: OLT-22-002389

Legacy Lead Case No.: PL210262

OLT Case Name: 1984396 Ontario Inc. v. Niagara (Regional Municipality)

Heard: January 13, 2022 by video hearing

APPEARANCES:

Parties	Counsel
1984396 Ontario Inc.	Ronald M. Kanter
City of St. Catharines	Denise Baker
Region of Niagara	Katarzyna Sliwa/Aaron Kurts
2496582 Ontario Inc. (Movengo)	Jennifer Meader/Nancy Smith
Whitty, Pennachetti and Hunt Families	Thomas A. Richardson
Elite Developments	Patrick J. Maloney
Fermo Holdings	Thomas A. Richardson
Heddle Marine Service Inc.	Patrick Harrington
340A Lakeshore Road Inc.	Patrick Harrington

DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The purpose of this third Case Management Conference ("CMC") was to hear the Motions brought forward by the Parties to dismiss the Appeal in part of 1984396 Ontario Inc.

BACKGROUND

2Council for the City of St. Catharines ("City") initiated a study after the closure of a large industrial use about the redevelopment of a vacant 21-hectare ("ha") (51 acre brownfield site on Ontario Street, in the middle of the City. Council directed staff to study the potential conversion of the industrial lands to allow for the redevelopment for future alternative uses (residential, mixed-use, etc.). The conversion requires an amendment to the City's Official Plan ("OP").

3Provincial policy requires that changes to the OP must conform or not conflict with Provincial land use plans, and that conversion of employment (industrial) lands must be addressed through a comprehensive Land Needs Assessment ("LNA"). The Assessment examines all employment lands and other land uses in the municipality and ensures that changes made to the OP support and facilitate the accommodation of projected population growth, housing need, and job growth by different sectors, that is forecast for the City to the year 2051.

4Official Plan Amendment ("OPA") No. 26 to the City's OP redesignates certain existing employment (industrial) lands to allow for alternative uses.

5OPA No. 26 was adopted by the City on November 30, 2020.

6Council for the Regional Municipality of Niagara ("Region") made a decision to modify and approve OPA No. 26 on March 26, 2021.

NATURE OF THE APPEALS

7Timberlee Glen Developments (now 1984396 Ontario Inc.) appealed the decision under s. 17(36) of the Planning Act. OPA 26 is appealed in its entirety, except for s. 1. The Appellant states that the decision of the approval authority is inconsistent with the Provincial Policy Statement ("PPS") and fails to conform with an applicable official plan. Specific reasons for the appeal include:

• Approving OPA 26 is premature prior to finalizing the Land Needs Assessment.
• No assessment of municipal urban structure or residential needs analysis prior to adoption of OPA 26.
• OPA 26 changes the planning horizon to 2031 and is not consistent with the PPS, 2020.
• OPA 26 did not amend the population, household, and employment forecasts in section 2.3.2 of the OP.
• Designation of land to institutional, which permit residential, is inconsistent with designation as employment land.
• No rationale provided for requirement of employment areas in St. Catharines.

MOTIONS TO DISMISS THE APPEAL

8The Tribunal was presented with five (5) Motions to dismiss the Appeal by the following Moving Parties:

• City of St. Catharines
• Region of Niagara
• 2496582 Ontario Inc. (Movengo)
• Whitty, Pennachetti and Hunt Families, Elite Developments and Fermo Holdings
• Heddle Marine Service Inc. and 340A Lakeshore Road Inc.

City of St. Catharines ("City")

9The City seeks an Order dismissing the appeal in part accordance with s. 17(45) of the Planning Act, RSO 1990, c P.13 as amended by striking Issues 1, 2, 3, 5, 6, 7, 8, 11 and 12 identified by the Appellant, 1984396 Ontario Inc. (the "Appellant") 1, from the Issues list.

Region of Niagara ("Region")

10The Region seeks an Order:

1. dismissing the Appeal, in part, in accordance with s. 17(45) of the Planning Act, R.S.O. 1990, c. P.13, as amended, (the "Planning Act") by striking Issue 3 from the Issues list and that the Appellant is statute barred from raising this issue.2)

2. dismissing the Appeal, in part, in accordance with s. 17(45) of the Planning Act by striking Issues 1-3, 5-8, and 11-12 on the Issues List, as requested in the Motion filed on behalf of the City based on the relief sought therein, and relying on the content of that Motion.

3. dismissing the Appeal, in part, in accordance with s. 17(45) of the Planning Act by striking Issue 13 on the grounds that the Appellant is statute barred from raising this issue, and that the Tribunal does not have jurisdiction over the issue;

2496582 Ontario Inc. ("Movengo")

11Movengo seeks an Order granting the City the Motion and further an Order striking Issues 9 and 10 identified by the Appellant from the Issues List for these proceedings.

Whitty, Pennachetti and Hunt Families, Elite Developments and Fermo Holdings ("Whitty")

12Whitty et al seek an Order dismissing the appeal, in part, in accordance with s. 17(45) of the Planning Act by striking Issues 1, 3, 5, 8 and 11-12 on the Issues List as requested in the Motion filed on behalf of the City based on the relief sought therein and relying upon the contents of that Motion.

13Furthermore, it seeks an Order dismissing the appeal, in part, in accordance with s. 17(45) of the Planning Act by striking Issue 13 as requested in the Motion filed on behalf of the Regional Municipality of Niagara based on the relief sought therein and relying upon the contents of that Motion.

Heddle Marine Service Inc. and 340A Lakeshore Road Inc. ("Heddle")

14Heddle supports the Motions to Dismiss the submissions and relief requested filed separately by the City and the Region of Niagara.

15With respect to the Motions to Dismiss filed separately by Movengo and the Witty Family et al, Heddle do not oppose the relief requested.

16The materials before the Tribunal on these Motions consist of:

1. The City of St. Catharines' Record of Motion dated November 18, 2021
2. The affidavit of Bruce Bellows, sworn October 29, 2021
3. The Regional Municipality of Niagara's Record of Motion dated November 3, 2021
4. The affidavit of Diana Morreale, sworn November 3, 2021
5. Movengo Corporation Record of Motion dated November 3, 2021
6. The affidavit of David Faletta, sworn November 2, 2021
7. Whitty Family, Hunt Family, Fermo Holdings Limited and Elite Developments Record of Motion dated November 4, 2021
8. The affidavit of Matthew Cory, sworn November 4, 2021
9. 1984396 Ontario Inc. Responding Motion dated December 1, 2021
10. Affidavit of Michael Pettigrew, sworn December 1, 2021

GROUNDS FOR THE MOTION

17The grounds for the Motions were consistent amongst all Moving Parties.

18The Tribunal was informed the Appellant in this matter owns approximately 18.5 ha of land that are affected by OPA 26 and seeks to develop its lands with a range of residential, commercial, and mixed-use developments. Approximately one month prior to city council's adoption of OPA 26, the Appellant applied to the City for a private, site-specific Official Plan amendment to enable the desired developments. In addition, when the Appellant made submissions during the public consultation process for OPA 26, its submissions pertained to the effect of OPA 26 on the Appellant's own lands and its desired site-specific development.

19The Appellant appealed OPA 26 for what the Appellant initially represented to be the effect of OPA 26 on its own lands. The Appellant provided a submission letter from their consultant in their Appeal package that was filed prior to the adoption of OPA 26. The said letter is a justification of the Appellant's proposed development for their lands and focuses only of the effects of the OPA 26.

20The Appellant's appeal lists six brief reasons for its appeal. All the six reasons did not refer any specific planning policies or made any reference to the Growth Plan for the Greater Golden Horseshoe.

21Through the public consultation process, the Tribunal was informed that the Appellant's submissions were consistent with their appeal package and that they solely related on the effect of the OPA 26 on their lands.

22The Appellant thereafter submitted thirteen (13) issues for an Issues List none of which pertain to the Appellant's own lands, and almost all of which have no connection to the reasons raised in the Appellant's appeal package.

23The Tribunal noted that the Issues List and Procedural Order were finalized on the understanding that not all parties agree that the issues are appropriate and/or relevant to the determination of the Tribunal at the Hearing.

Issues List

24The Appellant proffered the following 13 Issues from the Issues List in the Procedural Order:

Consistency with the Provincial Policy Statement (2020)

1. Is the proposed Official Plan amendment consistent with the Provincial Policy Statement (2020), including Section 1.1.1 b), 1.1.1 c), 1.1.2, 1.1.3.4, 1.2.6.1, 1.3.1 a – e), 1.3.2.1, 1.3.2.2, 1.3.2.3, 1.3.2.7, 1.4.3 f), and 1.8.1 c) and 3.2?

Conformity with the Growth Plan for Greater Golden Horseshoe (2019)

2. Does the proposed Official Plan amendment conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019), including Section 1.2, 2.2.1.2 e), 2.2.1.4, 2.2.1.5, 2.2.1.6, 2.2.5.1, 2.2.5.2, 2.2.5.3, 2.2.5.5, 2.2.5.6, 2.2.5.7 (c), 2.2.5.8, 2.2.5.9, 2.2.5.10, 2.2.5.13, 2.2.5.15, 2.2.5.17, 2.2.5.18, and 5.2.4.4?

Conformity with the Regional Official Plan

3. Does the proposed Official Plan amendment conform to the Regional Official Plan, including Section 3.C.1, 3.C.2, 4.B.4, Table 4-1, 4.E.1.1, 10.B.2.7, 14.E.2, 14.E.3, 14.E.4, 14.E.5, and 14.I.3.1?

Conformity with the intent of the City's Official Plan

4. Does the proposed Official Plan amendment conform to the intent of the Garden City Plan, including Section 6.1.2 b), 10.1, 10.2, and 10.4 b)?

Planning Horizon

5. Does the proposed Official Plan amendment plan for housing and population growth beyond a time horizon of up to 25 years?

6. Does the proposed Official Plan amendment plan for growth beyond 2051?

Appropriateness of Proposed Land Use Designations

7. Does the proposed Official Plan amendment distinguish between Employment Areas and Employment Lands? Does the proposed Official Plan amendment determine why Employment Areas are now required, rather than Employment Lands based on City structure?

8. Is the inclusion of the two new "Institutional" designated sites in the Garden City Plan solely for the purpose of allowing residential uses on the identified two "Institutional" sites? Was an analysis of all Institutional sites completed to determined suitably for an "Institutional" designation and thus residential use?

9. Have the Provincial, Regional, and local employment conversion policies been met on 282 and 285 Ontario Street, the NHS Hospital lands on Fourth Avenue, the Brock University lands on Sir Issac Brock Way, and on 541-567 Glenridge Avenue for Institutional and/or Mixed Use to allow conversions from Employment to Institutional and Mixed Use designations, which permit various uses, including residential?

10. Are 282 and 285 Ontario Street most appropriate for residential uses? Have historical issues related to land contamination been addressed? Do these lands exhibit characteristics associated with employment land (i.e. access to public transit and major transportation corridors)?

Land Needs Assessment

11. Has the most current data been used for the City of St. Catharines Land Needs Assessment, including the information used to execute the Regional Land Needs Assessment?

12. How can the City of St. Catharines reconcile its position that it has a surplus of employment lands when the Regional Land Needs Assessment found that the City has a deficit of employment lands?

13. Are there still opportunities for the Regional Municipality of Niagara to reallocate jobs from St. Catharines to other municipalities across the Region? Are there still opportunities for the Region to convert employment land based on a Regional surplus?

The Motioning Parties submitted:

Issues 1,2,3,5,6,7,8,9,10,11,12 and 13 should be struck from the Issues List and that the Appellant is statute-barred from raising Issues 1-3 on appeal.

Issue 1

• Refers to the inconsistency with the PPS, however, the Appellant failed to explain how OPA 26 is inconsistent with the PPS, beyond the mere mentioning the word "inconsistent".

25The moving party heard that the Appellant's Notice of Appeal did not explain how the decision is inconsistent with, fails to conform with or conflicts.

Issue(s) 2 and 3

• Refers to issues with respect to the Growth Plan and the Region's Official Plan.

26The moving parties argue that there is no mention of these polices in the appeal materials nor is their any explanation of the Appellant's bases for relying on these policies.

Issue(s) 5 and 6,

• Like issue 1, refers to the planning time horizon as contemplated in the Provincial growth forecast in the PPS and the Growth Plan. To the extent that the Appellant's argument regarding these issues is that the planning horizon mentioned in the preamble of OPA 26 is not consistent with the planning horizon to 2031, the City's staff report clearly sets out that the LNA is based on a planning time horizon to 2041, and then adjusted accordingly to reflect a revised Provincial growth forecast to 2051 which was published by the Province in late August 2020 (Amendment 1 to the Growth Plan).
• Accordingly, and as stated in the preamble of OPA 26, the LNA and recommendations of OPA 26 are based on supporting population, housing and employment jobs for a planning time horizon to 2051.
• The moving parties argue that as these issues deal squarely with policies in the Growth Plan, the Appellant makes no meaningful reference to in its appeal materials, thus, the Appellant is barred from raising them in the hearing by operation of law.

Issue 7

• Is not a proper issue given that in the response to the first question in the issue, Does the proposed Official Plan amendment distinguish between Employment Areas and Employment Lands?, the answer is yes.
• The moving parties argue that OPA 26 is clear in that regard. No planning or other evidence is required to determine that question.
• Regarding the second question in Issue 7, Does the proposed Official Plan amendment determine why Employment Areas are now required, rather than Employment Lands based on City structure?
• The moving parties argue that this question addresses the policies in the Growth Plan that distinguish Employment Areas (a defined term that is also referenced in the PPS 2020 and the Planning Act), and employment lands (an undefined term).
• As indicated previously, the moving parties argue that the Appellant is statute-barred from making a Growth Plan argument.

Issue 8

• Raises the re-designation of the NHS Hospital and Brock University in OPA 26.
• The moving parties argue that in accordance with the City staff report from November 2020, the institutional designation applied to the Hospital and University was an administrative change to better reflect what is currently existing on the two sites.
• The City's zoning has always permitted institutional uses and there is no authentic or legitimate planning ground upon which this issue should be adjudicated.

Issue 9

• Speaks to the Ontario Street lands.
• The moving parties argue that the Appellant has provided no reasons for taking issue with the Ontario Street lands and has raised concerns with the Ontario Street lands for the first time through its Issues List.
• The moving parties that the appeal is characterized by a lack of seriousness and is without sufficient grounds Issues 9 is frivolous and vexatious and should be struck, pursuant to section 7(45)(1)(ii) of the Planning Act.

Issue 10

• Speaks to whether the Ontario Street Site is most appropriate for residential uses. OPA 26 designates the Ontario Street lands as Mixed Use, which provides for and allows a range of uses including residential, institutional, recreation and employment uses. The more specific allocation of uses on the subject lands will be determined through a future Secondary Plan exercise as identified in OPA 26.
• The moving parties argue that this issue is irrelevant to the Appellant's interests in this appeal with respect to the Appellant Lands.
• The moving parties further argue that the Appellant also mischaracterized the uses permitted at the Ontario Street Site by incorrectly assuming the City has deemed the Site 'most appropriate for residential uses'.

Issues 11 and 12

• Attest to the issue with the study conducted by the City, which was not completed within the Region's MCR as contemplated by Policy 2.2.5.10 of the Growth Plan.
• The City relied on the Region's data collected for its Municipal Comprehensive Review ("MCR") which was currently underway due to the most up to date data. The Tribunal was informed however, the City's LNA is entirely independent from that of the Region's. The Region's LNA, which is being drafted as part of the MCR under the Growth Plan 2019, is not yet complete.
• The moving parties argue that the Appellant is blending the MCR with the work of the City and the Appellant's appeal materials mistakenly presume that the City was required to wait for a MCR to be completed prior to adopting OPA 26.
• Under the Growth Plan, there is no requirement for the Region to complete its LNA as part of its MCR before the conversion of employment lands by the City under OPA 26 could be approved and;
• That there is a clear process for that to take place under the Growth Plan outside of a MCR.
• The Appellant has not raised any concerns with the conformity of OPA 26 to the Growth Plan and therefore this issue is statute-barred from being raised in this hearing.

Issue 13

• Implicitly engages the employment conversion policies of the Growth Plan for the Greater Golden Horseshoe, 2019.
• The moving parties argue that pursuant to the Growth Plan, employment lands in employment areas may be converted to non-employment uses only through a municipal comprehensive review ("MCR"), or in advance of a MCR in accordance with Policy 2.2.5.10 of the Growth Plan and that;
• The Region's MCR is currently ongoing, and the Appellant has made an employment conversion request for its lands through that process.
• The moving parties also argue that the Appellant is statute-barred from raising Issue 13. As noted in subsection 17(37.1) of the Planning Act, requires an appellant that intends to argue that a decision fails to conform with or conflicts with a provincial plan to explain how this is so in their notice of appeal.
• The Appellant's notice of appeal does not explain or identify concerns of Growth Plan conformity or conflict, and does not even check the appropriate box on Appeal Form A1, to indicate that such issues may be raised.

Appellant's Position

27The Appellant maintains that its Notice of Appeal is sufficient, and that the reasons for appeal are or should be clear to experienced land use counsel representing the Moving Parties in this case. The Appellant initially retained IBI Group ("IBI") as its land use planner early in the planning process, before the City held a public hearing to discuss its response to the Region's draft LNA. IBI raised the Appellant's concerns with respect to provincial and regional planning documents, planning designations for Movengo and Whitty Family et al, and compatibility with existing industrial users.

28The IBI letter supports the planning issues of prematurity and balance between residential and employment lands. It also raises the issue of the compatibility of residential uses on part of the lands with industrial uses to the west. When IBI withdrew from this case as a result of a business conflict, the Appellant retained another land use planner, The Biglieri Group ("Biglieri"). The Tribunal heard the Appellant has responded to this Motion with Affidavit material from Biglieri in support of its position that there are valid planning grounds upon which the Tribunal may allow its appeal.

29The Appellant further maintains that the notice states that approving OPA 26 is premature prior to finalizing a LNA and that that it does not assess residential needs. According to the Growth Plan, Niagara Region, not the City, is responsible for assessing the quantity of land required to accommodate forecasted growth. The Region has not completed its MCR, or allocated population and employment projections to St. Catharines or other lower-tier municipalities.

30Prematurity as a reason for the appeal was raised by IBI as one of the reasons for the appeal.

31The Affidavit sworn by Biglieri provides an additional explanation as to how the premature designation of Employment Areas proposed by OPA 26 is inconsistent with the provisions of the Growth Plan, which states that the upper-tier municipality is the authority for designating Employment Areas, and the City's designation is premature without the Region completing its LNA and Municipal Comprehensive Review processes to determine the amount and location of Employment Areas within the City of St. Catharines.

32Prematurity is a land use planning ground which raises genuine, legitimate and authentic grounds for an appeal of OPA 26.

33The Appellant's Notice states that there was no assessment of municipal urban structure or residential needs analysis prior to adoption of OPA 26. The PPS and Growth Plan requires municipalities to promote land use policies which accommodate:

• An appropriate affordable and market-based range of mix of residential types and employment (including industrial and commercial)
• Support the achievement of complete communities, defined as mixed-use neighbourhoods or other areas within cities, towns, and settlement areas that offer and support opportunities for people of all ages and abilities to conveniently access most of the necessities for daily living, including an appropriate mix of jobs, local stores, and services.

34The Appellant argues that OPA 26 is therefore inconsistent with the PPS because OPA 26 purports to designate Port Weller and other lands as employment areas without accommodating an appropriate affordable and market-based range and mix of housing types as well as employment uses to meet long-term needs, required by the PPS. OPA 26 is also inconsistent with the PPS since it permits the conversion of employment lands to non-employment uses before the Region has completed a comprehensive review through the MCR.

35Without the completed MCR, none of the parties can determine whether OPA 26 meets the PPS and Growth Plan's requirements to provide appropriate affordable residential and employment areas.

36OPA 26 is based on an incomplete Employment Needs Assessment. OPA 26 consequently fails to conform with the Growth Plan because OPA 26 deals only with employment lands, while the Growth Plan supports the achievement of complete communities that feature a diverse mix of land uses, including residential and employment uses.

37However, the Growth Plan requires Niagara Region to complete a LNA in accordance with Ministerial methodology before it determines the amount of land required to accommodate growth, and then allocates forecasted growth to St. Catharines.

38The Appellant also argues that OPA 26 fails to conform with the Niagara Region Official Plan, since it designates Port Weller and other lands as employment areas and is based on forecasts to the year 2051. The NROP does not contain any policies concerning employment areas, and contains population and employment forecasts extending only to the year 2031.

Issue 1: Inconsistency with the PPS

39The Appellant opined that OPA 26 is inconsistent with the PPS through reference to the municipal urban structure or residential needs analysis. The PPS requires municipalities to direct land use to accommodate both an appropriate affordable and market-based range and mix of residential types and employment.

40The Appellant further proffered that if OPA 26 is inconsistent with any of the provisions of the PPS, such as the need to accommodate housing, employment and other uses to accommodate long-term needs, it would raise an apparent land use planning ground which could result in refusal of all or part of OPA 26.

Issue 2: Non-Conformity with Growth Plan

41The Appellant opined how OPA 26 fails to conform with the Growth Plan by reference to a LNA and designation of employment areas. A LNA is to be conducted by an upper-tier municipality, as the basis for assessing the quantity of land required to accommodate forecasted growth, and for allocating forecasted growth to the lower-tier municipalities (s. 2.2.1.5 and 5.2.3). If OPA 26 fails to conform with any of the provisions of the Growth Plan, such as the need for the Region of Niagara, not the lower-tier municipality of St. Catharines, to complete an LNA and determine the amount of land required for employment use, it would raise an apparent land use planning ground which could result in refusal of all or part of OPA 26.

Issue 3: Non-Conformity with Niagara Region Official Plan

42The Appellant explained that OPA 26 fails to conform with Niagara Region Official Plan ("NROP") by reference to population, household and employment forecasts. According to the in-force NROP, population and employment forecasts extend only to the year 2031.

43If OPA 26 fails to conform with any of the provisions of the Regional OP, such as the lack of provision for employment areas or time frame extending to 2031, it would raise an apparent land use planning ground which could result in refusal of all or part of OPA 26.

Issue 4: Conformity with City's OP

44This Issue was not challenged by City.

Issues 5 and 6: Planning Horizon

45The Tribunal heard the issue of the appropriate time horizon for determining housing and population growth. If the City is relying on an improper planning horizon, that would raise an apparent land use planning ground which could result in refusal of all or part of OPA 26.

Issue 7: Employment Areas: Regional Authority to Designate

46The Appellant maintains that the Upper-tier municipalities are to designate all employment areas in official plans (Growth Plan S. 2.2.5) and notes that Niagara Region has not yet designated any employment areas in its official plan. If the City is designating employment areas without or prior to regional designation, that would raise an apparent land use planning ground which could result in refusal of all or part of OPA 26.

Issue 8: Institutional Designation

47The Appellant argues that if OPA 26 is seeking to remove the any lands from an employment designation to a designation which allows residential or other non-employment uses, it should follow the process for conversion set out in the Growth Plan. Failure to do so would raise an apparent land use planning ground which could result in the refusal of the part of OPA dealing with the Fourth Avenue Lands.

Issue 9: Conversion Policies, Ontario Street and Fourth Avenue Lands

48The Appellant argues that OPA 26 is proposing to redesignate Ontario Street Lands from Employment to Mixed Use, and Fourth Avenue Lands from Business Commercial Employment to Mixed Use and that;

If OPA 26 is seeking to remove these lands from an employment to non-employment designation, it should follow the process set out in the Growth Plan, NROP and the Garden City Official Plan.

49Failure to do so would raise an apparent land use planning ground which could result in the refusal of the part of OPA 26 dealing with the Ontario Street and Fourth Avenue Lands.

Issue 10: Suitability of Ontario Street Lands for Residential Use

50The Appellant maintains that Issue 10 asks in part if historical issues related to land contamination have been addressed.

51Given that OPA was triggered by the potential redevelopment of a brownfield site for future alternative uses, including residential, and Movengo's expectation of remediation to permit residential use, the Appellant submits that the issues of contamination and remediation are relevant to the approval of OPA 26, at least as it applies to the Ontario Street Lands.

Issues 11 and 12 Land Needs Assessment ("LNA")

52The Appellant proffered that Niagara Region is responsible for using methodology established by the Minister of Municipal Affairs and Housing to assess land needs to implement the Growth Plan, to undertake a comprehensive municipal review and the allocate forecasted growth to St. Catharines and other lower-tier municipalities within Niagara Region.

53If OPA 26 is based on a LNA determined by a lower-tier municipality, it raises an apparent land use planning ground which could result in the refusal of the part of OPA 26.

Issue 13: Reallocation by Niagara Region

54The Region notes that the Appellant failed to check one (1) box on the Appeal Form, concerning failure to conform with or conflicts with a provincial plan. The Appellant did check the appropriate boxes to indicate inconsistency with the PPS and failure to comply with the NROP.

55The Appellant opined that the failure to check a single box on the Appellant Form does not negate the Appellant's position that OPA 26 is inconsistent with the PPS. According to Patry v. Kingston (City) 2019 CarswellOnt 2478, whether a box was checked will not be determinative of the Tribunals' consideration of the Appellant's appeal, particularly given all of the Appellant's filed materials.

FINDINGS

56The Tribunal agrees the Appellant's appeal package is consistent with the submissions the Appellant made during the public consultation process. Both pertained exclusively to the effect of OPA 26 on the Appellant's own lands and its desired development.

57Conversely, the Appellant submitted thirteen concerns for the Issues list for this proceeding.

58The Tribunal has consistently heard the Motioning Parties' consensual assertions.

59Collectively, they proffer that the Appellant's impugned issues are statute-barred because they have no foundation in the Appellant's Notice of Appeal as required by s.17(37.1) of the Planning Act.

60Subsection 17(37.1) states as follows:

If the appellant intends to argue that the appealed decision is inconsistent with a policy statement issued under subsection 3 (1), fails to conform with or conflicts with a provincial plan or, in the case of the official plan of a lower-tier municipality, fails to conform with the upper-tier municipality's official plan, the notice of appeal must also explain how the decision is inconsistent with, fails to conform with or conflicts with the other document.

61The Tribunal notes that none of these Issues pertain to the Appellant's own lands, and to which most have no connection to the reasons raised in the Appellant's appeal package.

62In Lavoie-Schaeffer v. Clarence-Rockland (City), 2021 CanLII 17382 (ON LPAT) the Tribunal provides;

Under s. 34(25)1. i. of the Act, the Tribunal may, on a motion of any party, dismiss an appeal that does not disclose an apparent land use planning ground on which the Tribunal could rely upon to change the decision of Council. An Appellant must demonstrate that there are legitimate land use planning concerns. In this case, the Notice of Appeal does not disclose an apparent land use planning ground on which the Tribunal could rely upon to change the decision of Council.

In a case where a Notice of Appeal is lacking, as it is in this case, the Appellant will not be permitted to expand its appeal after its submission and beyond the appeal period in order to satisfy a statutory test. The Appellant should not be given a 'second chance' to correct its first instance deficiency. Counsel for the Applicant argues that the Tribunal does not have the authority, under the legislation or the Rules of Practice and Procedures, to permit an Appellant to amend a Notice of Appeal to make valid what is invalid. The legislation imposes strict procedural requirements, requiring grounds and explanations within the Notice of Appeal, that must be satisfied.

63The Tribunal notes that the Appellant's Notice of Appeal does not clarify how OPA 26 is inconsistent with the PPS nor how it conforms with the Growth Plan or the Region's OP.

64The Appellant relies on the Affidavit filed by it in response to the City's Motion to substitute for a correctly file Notice of Appeal.

65The Tribunal notes that the submissions on behalf of the Appellant, prior to adoption and approval of OPA 26, concerned the Appellant Lands being redesignated through OPA 26. However, there is no issue on the Issues List that relates directly to the redesignation of the Appellant Lands.

66Section 17(50.1) provides that the Tribunal does not have the power to approve or modify any part of the plan that, "was not added, amended or revoked by the plan to which the notice of appeal relates."

67By this review, it clarifies the Appellant is statute-barred from having the Appellant Lands redesignated through an appeal of OPA 26.

68The Tribunal finds, as the objective of the appeal cannot be achieved and there is no reasonable prospect of success that the motions shall be granted and that the appeal will be dismissed without holding a full hearing.

ORDER

69THE TRIBUNAL ORDERS that the Motions are granted and the appeal by 1984396 Ontario Inc. is dismissed.

"Carmine Tucci"

CARMINE TUCCI

MEMBER

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.