Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
May 05, 2022
CASE NO(S).:
OLT-22-002361
(Formerly PL210136)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
City Park (Lakeshore) Inc.
Subject:
Request to amend the Official Plan - Failure of the City of Mississauga to adopt the requested amendment
Existing Designation:
Mixed Use
Proposed Designated:
Residential High Density and to change the maximum height permitted
Purpose:
To permit retail and residential development
Property Address/Description:
1381 Lakeshore Rd. E.
Municipality:
City of Mississauga
Approval Authority File No.:
OPA/0Z/20/018
OLT Case No.: Legacy Case No.:
OLT-22-002361 PL210136
OLT File No.: Legacy File No.
OLT-22-002361 PL210136
OLT Case Name:
City Park (Lakeshore) Inc. V. Mississauga (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
City Park (Lakeshore) Inc.
Subject:
Application to amend Zoning By-law No. 0225-2007 neglect of City of Mississauga to make a decision
Existing Zoning:
C4 (Mainstreet Commercial)
Proposed Zoning:
RA5-Exception (Apartments - Exception)
Purpose:
To permit retail and residential development
Property Address/Description:
1381 Lakeshore Rd. E.
Municipality:
City of Mississauga
Municipality File No.:
OPA/0Z 20/018
OLT Case No.: Legacy Case No. OLT File No:: Legacy File No.:
OLT-22-002361 PL210136 OLT-22-002362 PL210137
Heard:
April 8, and April 22, 2022 by Telephone Conference Call
APPEARANCES:
Parties
Counsel
City Park (Lakeshore Inc.) (“Applicant’)
Leo Longo
City of Mississauga (“City”)
Michal Minkowski
MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON APRIL 8, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This third Case Management Conference (“CMC”) conducted in these Appeals relating to development applications at 1381 Lakeshore Road East, was scheduled by the Tribunal at the CMC conducted on December 1, 2021.
2The purpose of the additional CMC was to hear from counsel, following mediation, as to ongoing discussions and the further scoping of the issues, including those of the Region, in advance of the eight (8)-day hearing scheduled to commence on Tuesday, September 6, 2022. The Tribunal was to also, at this hearing event, determine if the Participant Lakeview Ratepayers’ Association (“LRA”) had yet complied with the directives of the Tribunal as to its corporate status.
3The Parties attended before the Tribunal on April 8, 2022 in accordance with the prior Decision. At that time the Tribunal addressed the matter of the status of the LRA, as a potential Participant, given the lack of response from the LRA, and received a further update from the Parties. Ms. Debra Goss, did not appear on April 8, 2022.
4As discussed below, as a result of communications that were forwarded by Ms. Goss to the Tribunal, following the attendance on April 8, the Tribunal directed a continuation of the CMC by telephone conference call on Friday, April 22, 2022. Ms. Goss did attend on April 22, 2022, acknowledging her non-attendance at the prior hearing events despite notice having been provided to the LRA.
STATUS OF THE PARTIES, ISSUES AND HEARING.
5Counsel initially confirmed on April 8 that while their mediation efforts had not resulted in a resolution, and the hearing would proceed as scheduled, all of the issues raised by the Regional Municipality of Peel (“Region”) had been fully resolved to its satisfaction and the Region had formally withdrawn from the Appeals and the hearing. Confirmation of the withdrawal of the Region as a party was subsequently received by the Tribunal.
6On that basis those issues identified by the Region and identified in the Issues List to the Procedural Order, were, and are, hereby withdrawn and the hearing will be conducted with only the two remaining Parties.
7Upon the reattendance on April 22, the Tribunal was advised that in the ensuing two weeks, all issues remaining between the Applicant and the City had been resolved and a Memorandum of Understanding had been executed and approved by the City. The Parties advised that the hearing dates in September could accordingly be removed from the Tribunal’s calendar and in lieu, requested a one-day Settlement Hearing to present evidence to the Tribunal in support of the proposed settlement. The previously scheduled hearing dates have now been removed. Conflict dates were secured from counsel and a date for the Settlement Hearing was subsequently obtained.
SETTLEMENT HEARING
8A settlement hearing is now scheduled to proceed by video hearing on Thursday, June 30, 2022 commending at 10 a.m.
9Parties, witnesses, and any participant or observers are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://meet.goto.com/692665589
Access code: 692-665-589
10All attendees to the hearing event are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
11Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9391 or Toll Free 1-888-455-1389.
12Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the CMC hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
REQUIREMENTS IN ADVANCE OF THE SETTLEMENT HEARING
13The Parties are to submit to the Case Coordinator, at least seven days in advance of the Settlement Hearing, electronic copies of the following materials:
(a) a copy of any executed Minutes of Settlement or Memorandum of Understanding unless this is to be withheld at the option of the Parties;
(b) a copy of all supporting documentation, materials, draft plans or specifications, reports or other documentary material which the Parties wish to submit as evidence in support of the settlement as well as relevant excerpts of the PPS, any applicable Provincial Plans, and municipal planning policy documents that will be relied upon in evidence. Clear legible versions of any detailed plans must be provided, and in electronic format must be scalable for easy viewing;
(c) any Planning Affidavit or an evidence outline of the qualified planner (or other relevant expert) who will provide evidence in support of the settlement, together with a copy of his or her Curriculum Vitae and executed Acknowledgement of Expert’s duty;
(d) any draft order submitted for consideration and approval by the Tribunal and if a contingent Interim Order is to be requested, any proposed contingent conditions to the issuance of a Final Order requested of the Tribunal, (in Word format);
(e) a separate copy of each draft instrument(s) submitted for consideration and approval by the Tribunal (in Word format);
(f) Any other materials which the Parties rely upon in support of the requested Orders of the Tribunal at the Settlement Hearing.
14There will be no further notice with respect to this Settlement Hearing. The Panel Member is not necessarily seized but may continue carriage of this matter.
THE PENDING PARTICIPANT – LAKEVIEW RATEPAYERS’ ASSOCIATION
NON-COMPLIANCE WITH THE TRIBUNAL’S DIRECTIVES
15As provided for in paragraph 5 of the CMC Decision issued on December 8, 2021, the purpose of the hearing event on April 8 was also to determine whether the LRA had yet complied with the prior Order of the Tribunal issued on August 24, 2021, and again on December 8, 2021, directing that Ms. Goss produce confirmation of the corporate status of the corporation. The Tribunal made clear that if the confirmation was not provided to the Tribunal and to the Parties in accordance with the prior directive by this Third CMC, and if Ms. Goss did not attend, the LRA would not be accorded Participant status.
16Both CMC Decisions and Orders issued on August 24, 2021 and December 8, 2021 were emailed directly to the email address provided by the LRA. So too was a follow-up email before this third CMC forwarded to this email address, which was obviously received as Ms. Goss eventually did communicate regarding the matter of LRA’s status.
17The LRA ignored both orders, no such confirmation of status was provided, and neither Ms. Goss, nor a representative of the LRA, attended to the CMC as directed by the Tribunal.
18Subsequent to the attendance on April 8, in response to an inquiry from Tribunal staff, Ms. Goss sent out communications to the Tribunal and counsel for the Parties. Despite the very clear directives provided by the Tribunal, Ms. Goss indicated that she did not believe proof of corporate status was required, asked that this requirement be explained to her and that the “request” for confirmation of the LRA’s corporate status was a “moot point”.
19The non-compliance with the Tribunal’s directives, the non-attendance of Ms. Goss to the two CMCs, and the argumentative responses from Ms. Goss were addressed on April 28, 2022. Attention was, and is, drawn to a recent decision of the Tribunal (Queenscorp (Mona Road) Inc. v. Mississauga (City) 2022 CarswellOnt 4451 (PL170371), in which Vice-Chair de Avellar Schiller quite adequately expressed the important point that in the conduct of planning appeals, an Order of the Tribunal relating to case management is not a suggestion. It is an Order and disregarding any such order contributes to delay, unnecessary time wasted as a result of non-compliance, and in some cases gives rise to an inherent unfairness for those Parties who adhere to these requirements. In this case, the parties have been preparing to move forward to the hearing, and the receipt of any Participant’s statement is part of the preparation for that hearing under the Procedural Order.
20As a result of the failure of LRA to comply with the Directive of the Tribunal, Participant status is not granted, and is now denied. Ms. Goss was, on April 22, alternatively provided with the opportunity, should she wish to do so, to personally file a request for Participant status using the Tribunal’s standard forms, with such a request to be filed with the Tribunal, and served upon the Parties, not later than Monday, May 2, 2022. On that day Ms. Goss confirmed that she would not request Participant status.
21To provide clarity, the Tribunal has addressed the subject of the required corporate status of residents’ and ratepayers’ association within its appeal processes.
22The Tribunal considers the involvement and contributions of ratepayers’ associations that meet the requirements for party or participant status to be an important aspect of its public interest mandate in planning matters. This Panel Member has previously addressed the benefits of such incorporated organizations in planning appeals, as they advocate and represent the shared concerns and common interests of multiple persons and allow community issues to be focused and collectively addressed before the Tribunal (Burfoot v. Kingston (City), 2017 CanLII 74725 (ON LPAT) Case File, PL161069).
23To that end, and consistent with the legal concept of a person, the Tribunal’s Rules are clear and precise in defining a “person” to include a corporation and other legislatively recognized entities. This includes non-profit entities such as residents’ associations. When granting party or participant status to residents’ associations, the Tribunal accordingly requires assurances that such associations have complied with legislative requirements for the formation of legal non-profit corporations under the Ontario Corporations Act. This is not merely a formality. This ensures that the “voice” of the residents’ association when granted status as a party or participant, and participating in planning appeals before the Tribunal, is reliably representative of a legal entity that is properly constituted and compliant with the Provincially regulated requirements of good corporate governance, transparency, and accountability to its members. Unless they are lawyers or paralegals, evidence that representatives of such legally organized associations have the authority to represent the interests of that association before the Tribunal are also required under Rule 4.1.
24For these reasons, Vice-Chair Makuch, in the Decision and Order issued on August 24, 2021, directed the LRA to provide confirmation as to its corporate status. The failure to comply with the directive has had consequences in this case. Ms. Goss was advised by the Tribunal at this CMC that in the event the LRA wishes to retain the opportunity to participate in any future planning appeals before the Tribunal, in which its resident members may have an interest, either as Participant or Party, that steps be taken to reinstate, or secure corporate status.
25The Tribunal so orders and provides these directives for the purposes of the case management of this Appeal.
“David L. Lanthier”
DAVID L. LANTHIER
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.