Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 19, 2022
CASE NO(S).: OLT-21-001533
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Association of Community Organizations for Reform Now, Canada (“ACORN”)
Subject: Proposed Official Plan Amendment No. OPA 263
Description: To permit redevelopment of the Heron Gate area and to increase permitted heights
Municipality: City of Ottawa
Property Address: Heron Gate – 2848, 2851, 2881, 2898 Baycrest Drive; 2820, 2831 Cedarwood Drive and 2816 Sandalwood Drive
OLT Lead Case No.: OLT-21-001533
OLT Case No.: OLT-21-001533
OLT Case Name: ACORN v. Ottawa (City)
Heard: April 8, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel
Association of Community Organizations for Reform Now, Canada (“Appellant”)
Daniel Tucker Simmons
Hazelview Developments Inc.
Zachary Fleisher
(“Applicant”)
David Bronskill (in absentia)
City of Ottawa (“City”)
Emma Blanchard
Timothy Marc (in absentia)
DECISION DELIVERED BY S. MANN AND T. PREVEDEL AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is the first Case Management Conference (“CMC”) in respect of an appeal under s. 17(24) of the Planning Act (“Act”) with respect to a decision of the City of Ottawa (“City”) to pass Official Plan Amendment No. 263 (“Proposed OPA”).
BACKGROUND
2The Applicant owns the lands known municipally as 2848, 2851, 2898 Baycrest Drive; 2820, 2831 Cedarwood Drive, and 2816 Sandalwood Drive, in the City (“subject property”). On April 24, 2019, the Applicant filed an application to amend the Official Plan for the City (“OP”) in order to create four land use designations, each with their own specific policies in order to allow the development of up to 25 storeys at the subject property. The OPA will permit an additional 1,439 units on the subject property, in addition to the permitted 4,988 units for a total of 6,427 units, of which 16% will be affordable units totalling 1,020.
3The City’s Planning Committee recommended approval and City Council subsequently enacted Zoning By-law No. 2021-312 (“ZBLA”).
4An application for appeal was filed by the Appellant, a community rights organization, on October 18, 2021. The grounds for appeal outlined are as follows (“Grounds for Appeal”):
i. Inconsistent with Provincial Policy Statement 2020 (“PPS”) Part V, Policy 1.4 (Housing) and Policy 4.4 (Human Rights and Charter Rights consistency).
ii. Fails to conform with the applicable OP of the City (By-Law No. 2003-203), Volume 1, Section 2 (Strategic Directions), Policy 2.5.2 (Affordable Housing).
iii. Inconsistent with the Ontario Human Rights Code (“OHRC”) s. 2 (Freedom from discrimination in relation to accommodation) and s. 11 (Constructive discrimination).
iv. Inconsistent with the Canadian Charter of Rights and Freedoms (“Charter”), s. 7 (Life, liberty and security of the person) and s. 15 (Equality).
MOTION TO DISMISS BY APPLICANT
5The Tribunal received a motion from the Applicant on March 24, 2022 (the “Motion”). The Motion seeks to dismiss the appeal pursuant to s. 17(45) of the Planning Act (“Act”) and s. 19(1) of the Ontario Land Tribunal Act (“OLT Act”) without a hearing on the basis that the reasons set out in the Notice of Appeal do not disclose any apparent land use planning ground on which the Tribunal could allow all or part of the Appeal and the Appeal has no reasonable prospect of success.
6The Tribunal received and marked the following documents as Exhibits to the hearing:
Exhibit 1 – Affidavit of Service of the City of Ottawa
Exhibit 2 – Affidavit of Service of Ms. Siskopoulos on behalf of Applicant
Exhibit 3 – Motion Record of the Applicant
Exhibit 4 – Responding Motion Record of the City of Ottawa
Exhibit 5 – Appellant’s Response
Exhibit 6 – Applicant’s Book of Authorities
Exhibit 7 – City’s Book of Authorities
Grounds for the Motion
7The Applicant alleges that the Appellant’s Notice of Appeal does not disclose valid land use planning grounds and has no reasonable prospect of success.
8Section 17(45) of the Act provides that 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 list of criteria are met, the Applicant highlighted s. 17(45)(i) “the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the plan or part of the plan that is the subject of the appeal could be approved or refused by the Tribunal”.
9Section 19(1) of the OLT Act provides that the Tribunal may on any motion or on its own initiative dismiss a proceeding without a hearing. The Applicant highlighted s. 19(1)(c) “if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.”
10The Grounds for Appeal are related to the Appellant’s concern of a lack of affordable housing within the Application. It is the Applicant’s position that the Appellant does not have the right to rely on the Charter and OHRC, as the Tribunal does not have jurisdiction to rule on either legislation and that adequate concern has already been given to affordable housing.
11The Applicant’s position is that the only Ground for Appeal that is within the scope of authority of the Tribunal is Item 2 “Fails to conform with applicable OP of the City (By-Law No. 2003-203), Volume 1, Section 2 Strategic Directions), Policy 2.5.2 (Affordable Housing)”. The Applicant argues that this is not the case as the Application involved has an extensive review process involving the City and the public, in addition, the City has no Inclusionary Zoning (“IZ”) policy, therefore it does not have the authority to require IZ. The Appellant did not bring forward any witnesses or provide any evidence for this hearing or any further justification for their Grounds of Appeal.
12In addition, the Applicant relies on Exhibit 6 - Applicant’s Book of Authorities, which includes a decision of the Ontario Municipal Board (“OMB”) Toronto (City) v. East Beach Community Assn., 1996 CarswellOnt 5740 (“East Beach Case”) and the decision Zellers Inc. v. Royal Coburg Centres Ltd., 2001 CarswellOnt 3362.
Appellant Response
13The Appellant argued that the Applicant’s claim that no legitimate land use planning law argument has been made is incorrect, that the Charter and OHRC are legitimate grounds for consideration. The Appellant further submitted that a lack of evidence at this Hearing is irrelevant as there is no obligation to present a case at this CMC.
City Response
14The City supports the Applicant’s Motion and argues the OPA is consistent with the PPS and conforms with the OP.
15The City relies on Exhibit 7 - Book of Authorities, which includes the East Beach Case, and Whitley, Re, 2012 CarswellOnt 6471 (“Whitley Case”).
ANALYSIS AND FINDINGS
16The Tribunal has considered the submissions of counsel as well as submissions from the Applicant’s witness, Antonio Gomez-Palacio, who was qualified as an expert land use planner.
17The motion is allowed with respect to dismissal of the appeal. The Grounds for Appeal do not raise any land use planning issues that are within the jurisdiction of the Tribunal or sufficient to require the adjudicative process.
The [Canadian Charter of Rights and Freedoms](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) (“Charter”) and Ontario Human Rights Commission (“[OHRC](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)”)
18The Appellant has asserted that the OPA does not comply with the Charter and OHRC. When an Appellant asserts that the OPA is not compliant with these documents, the Appellant is expected to set out the basis for that non-compliance. However, the Appellant has not brought forward any evidence, in the context of a legitimate land use planning ground, to support this assertion.
19The appeal fails to establish a legitimate planning ground that the OP is not compliant with the Charter or the OHRC. Grounds for the Appeal should refer to a specific provision in the OP that does not comply with the Charter or the OHRC.
20The Tribunal is expected to apply the law, and in doing so it must probe into the grounds raised in the notice of appeal to decide if they are legitimate and worthy of adjudication. The Tribunal notes that broad and overly general assertions that refer to the Charter or the OHRC are insufficient to support an appeal of the OP policies.
City OP, Section 2.5.2 - Affordable Housing
21The Appellant alleges that the 16% affordable housing provided for in the Application is insufficient due to s. 2.5.2 of the OP, which the Appellant alleges requires 25%. The Tribunal finds this to be a gross misinterpretation of the OP as it merely encourages a City-wide target of 25% affordable housing. City staff confirmed that s. 2.5.2 of the OP is simply a target for future growth in the City and the actual mechanism to achieve this goal provides for planning incentives and direct supports to encourage landlords to provide such housing, including density bonuses and height increases as the City has provided for in the OPA, with no mention of IZ or requirement to provide 25% affordable housing in order to qualify.
22The City has the right to enact IZ pursuant to s. 16(4) and s. 5.1 of the Act and as of the date of the Hearing has not elected to do so, and as a result does not have the authority to enforce a requirement for affordable housing. Despite there being no requirement, the Applicant worked with the City in order to enter into a Memorandum of Understanding (“MOU”) providing for 16% affordable housing in exchange for a density bonus and increased building heights, keeping in line with the goals of s. 2.5.2 of the OP.
23The Appellant alleges that the subject property is home to a racialized immigrant community that has not been considered in relation to the Application. Despite this serious allegation, the Appellant provided no substantial evidence to demonstrate this fact. The Applicant, however, was able to demonstrate that it held multiple open houses and information sessions with the public from September 27, 2016, up until March 25, 2019, prior to and following submission of its Application in order to engage with the community surrounding the subject property. Consultation with the public and the City culminated in the MOU. The Tribunal is of the position that based on the evidence provided, sufficient consideration was given to public consultation.
Appellant’s Obligation to Prepare for a Hearing
24The Appellant took the position that it cannot be forced to prematurely present its case at this CMC as it is not the hearing itself, therefore the Appeal may not yet be dismissed. This is incorrect as s. 17(45) of the Act permits the Tribunal to dismiss an appeal in the event that the reasons set out in the notice of appeal do not disclose any apparent land use planning ground and s. 9(1) of the OLT Act appeal has no reasonable prospect of success.
25The leading decision in assessing whether a Notice of Appeal fails to disclose any apparent land use planning ground is the East Beach Case, which established that it was not sufficient to simply deploy planning language in the Notice of Appeal, the Tribunal is also entitled to examine whether there has been disclosure of planning grounds that warrant a hearing. The established test is for the Tribunal to examine the reasons for Appeal and see whether they constitute genuine, legitimate and authentic planning reasons.
26Viewing the Appellant’s Grounds for Appeal under the test established in the East Beach Case, the Tribunal finds that the reasons stated do not constitute genuine, legitimate and authentic planning reasons. Further, subsequent to the filing of the Notice of Appeal, the Appellant has brought forward no further evidence. Case law has established that when an Appellant launches an appeal they must have evidence to support their reasons for appeal. From the date of filing its Appeal, it does not appear that the Appellant has taken any demonstrable steps towards proving its Grounds for Appeal.
27In contrast, the Applicant has provided expert opinion evidence by their land use planner supporting their position that there is no legitimate land use planning ground in the Appellant’s appeal. Their evidence is uncontradicted and there is no evidence that the Grounds for Appeal are authentic and therefore, are not worthy of a full hearing.
28The Tribunal expects appellants to prepare for a hearing after they file an appeal of the municipal decision.
29For the foregoing reasons, the Tribunal grants the Motion to Dismiss on the grounds enunciated under s. 17(45) of the Act and s. 9(1) of the OLT Act.
ORDER
30The Motion to dismiss the appeal by the Applicant is granted and the appeal is hereby dismissed.
31There will be no further notice and the Members are not seized.
“S. Mann”
S. MANN
MEMBER
“T. Prevedel”
T. PREVEDEL
MEMBER
Ontario Land Tribunal
Website: www.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.