Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 1, 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: August 18, 2022 by video hearing

APPEARANCES:

Parties

Counsel

1984396 Ontario Inc. (“Appellant”)

Ronald M. Kanter Russell Cheeseman Stephanie Fleming

City of St. Catharines (“City”)

Denise Baker Lara Kinkartz

Region of Niagara (“Region”)

Katarzyna Sliwa Katryna Vergis-Mayo

2496582 Ontario Inc. (“Movengo”)

Nancy Smith Jennifer Meader

Whitty, Pennachetti and Hunt Families

Thomas A. Richardson

Elite Developments

Thomas A. Richardson

Fermo Holdings

Thomas A. Richardson

Heddle Marine Service Inc.

Patrick Harrington

340A Lakeshore Road Inc.

Patrick Harrington

MEMORANDUM OF ORAL DECISION DELIVERED BY T. PREVEDEL ON AUGUST 18, 2022, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is a Motion for a Request for Review of a Decision issued April 7, 2022, pursuant to Section 23 of the Ontario Land Tribunal Act and Rule 25 of the Ontario Land Tribunal Rules of Practice and Procedure, as well as a request for Stay of the City adopted OPA 26.

2The Motion was formally submitted by counsel representing the Appellant, 1984396 Ontario Inc., and written submissions were received from the City of St. Catharines (“City”), the Region of Niagara (“Region”) and 2496582 Ontario Inc. (“Movengo”).

BACKGROUND

3The Appellant applied to the City on October 23, 2020, for a private site-specific Official Plan Amendment (“OPA”) to permit the development of its lands for Mixed Use, including affordable housing. At the time of this application, the City’s existing Official Plan designated the subject lands as Employment.

4On November 30, 2020, the City adopted OPA 26, designating six Employment Areas and identifying a seventh location as employment land with a special study area. OPA 26 also re-designates three existing Employment Areas to permit alternative residential and mixed-use development.

5It should be noted that OPA 26 designated the Appellant’s lands as Employment Area as defined in the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). An Employment Area does not permit Mixed Use, including residential use.

6The Region approved OPA 26 on March 25, 2021, with minor modifications recommended by Regional Staff.

7On April 14, 2021, the Appellant appealed the entirety of OPA 26, except for section 1, to the Tribunal.

8The Appellant identified 13 issues, prior to the first Case Management Conference on September 14, 2021, and for inclusion on the Issues List in the Procedural Order.

9Between November 1, 2021, and November 3, 2021, the Region, the City, Movengo, and Whitty Family, Hunt Family, Fermo Holdings Limited and Elite Developments (collectively referred to as the “Responding Parties”) brought motions to dismiss all but one of the issues raised by the Appellant, which were not included and/or substantiated by the Appellant’s notice of appeal.

10The Motions were heard at the January 13, 2022, Case Management Conference. Each Party filed written materials, provided oral submissions and provided a written summary of the oral submissions to the Tribunal.

11The Tribunal released its Decision on April 7, 2022, dismissing the appeal in full, including Issue No. 4, which has subsequently led to this Request for Review.

REQUEST FOR REVIEW BY 1984396 ONTARIO INC.

12The Appellant is the owner of approximately 18.5 hectares of land (“lands”), municipally known as 406 Lakeshore Road within the settlement boundary of the City.

13The lands are largely vacant, containing a farm building and orchard lands. They are accessed by Lakeshore Road, a two-lane road maintained by the Region.

14The Appellant has submitted that the Tribunal:

• acted outside of its jurisdiction by dismissing the Appellant’s appeal in full rather than in part, as requested by the City;

• violated the rules of natural justice and of procedural fairness by denying the Appellant the right of appeal;

• made errors of law by providing reasons for the Decision which are unclear, insufficient, vague, and lack particularity; and

• made errors of law by misinterpreting the Ontario Land Tribunal Act (“OLTA”) and the Planning Act (“Act”), its enabling statutes.

15The Appellant has also, by Notice of Motion dated April 22, 2022, sought leave to appeal the Decision to the Divisional Court.

16At the start of his oral submission, Mr. Kanter, on behalf of the Appellant, provided the Tribunal with a brief overview of the facts relating to this case and the chronology leading up to the Tribunal’s April 7, 2022, Decision. He acknowledged that his client’s private OPA is not before the Tribunal, and he explained how the City’s OPA 26 impacts his client’s lands, in particular the redesignation from Employment in the previous OP to Employment Area in OPA 26.

17Mr. Kanter also emphasized that the Moving Parties collectively brought forward Motions to dismiss the appeal in part, not in full. He made reference to the full day session on January 13, 2022, where the bulk of the oral submissions focused on whether the Appellant’s Notice of Appeal was deficient and, if deficient, would require the Tribunal to dismiss the appeal in part.

18Mr. Kanter then reviewed the April 7, 2022, Decision with the Tribunal, stating he was blind-sided by the Decision to dismiss his client’s appeal in full. He was very critical regarding the lack of precise analysis and reasoning in the “Findings” section of the Decision, and in particular paragraph (68) where there may appear to have been a “typo” error where the word “motions” should have been revised to “appeals”.

19Mr. Kanter referred to Rule 25.7 of the Tribunal’s Rules of Order and Procedure, which states that:

the Chair may exercise their discretion and grant a request and order either a rehearing of the proceeding or a motion to review the decision if satisfied that the request for review raises a convincing and compelling case that the Tribunal:

a. Acted outside its jurisdiction;

b. Violated the rules of natural justice or procedural fairness, including those against bias;

c. Made an error of law or fact such that the Tribunal would likely have reached a different decision;

d. Heard false or misleading evidence or;

e. should consider evidence which was not available at the time of the hearing, but that is credible and could have affected the result.

20Mr. Kanter stated that Member Tucci’s April 7, 2022 Decision should be reviewed on the basis that the Tribunal acted outside its jurisdiction, violated the rules of natural justice or procedural fairness, and made errors of law or fact such that the Tribunal would likely have reached a different decision.

21Mr. Kanter provided the Tribunal with a Book of Authorities and a Supplemental Book of Authorities, including but not limited to:

• North End Neighbours v. Hamilton (City), 2016 CarswellOnt 4734 (“North End 2016”)

• North End Neighbours v. Hamilton (City), 2017 CarswellOnt 5251 (“North End 2017”)

• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”)

• Askandar v. Richmond Hill, 2020 Carswell 9482 (“Askandar”)

• Hobo Entrepreneurs v. Barrie, 2006 CarswellOnt 7475 (“Hobo”)

• Sajecki Planning Inc, Re, 2021 CarswellOnt 14783 (“Sajecki”)

22As well as the above-referenced Book of Authorities, Mr. Kanter provided the Tribunal with an Affidavit from Ryan Wai On Chan, an articling student from his law office, which was previously submitted at the January 13, 2022 Hearing and subsequently updated. The Affidavit states that designating all of the Appellant’s lands for long term employment uses virtually sterilizes the lands as it prevents any residential uses, including affordable housing, and is contrary to the public interest.

One: The Tribunal acted Outside its Jurisdiction

23Mr. Kanter opined that, since the Moving Parties originally sought an Order dismissing his client’s appeal in part rather than in full, the Tribunal acted outside its jurisdiction by granting a full dismissal of the appeal.

24Mr. Kanter further stated that, in interpreting its enabling statutes, the Tribunal acted outside its jurisdiction.

Two: The Tribunal violated the Rules of Natural Justice

25Mr. Kanter, in his written and oral submissions, agreed that the Tribunal has the power to dismiss an appeal without a hearing. However, he stated that it cannot do so unless it complies strictly with Section 19 of the Ontario Land Tribunal Act and subsection 17(46) of the Planning Act.

26Mr. Kanter further stated that the Tribunal did not give the Appellant notice of its intention to dismiss the appeal in its entirety, set out the reasons for dismissal in its entirety, or inform the Appellant of its right to make written submissions to the Tribunal on the full dismissal.

27He opined that this was a denial of natural justice and procedural fairness since it denies the Appellant its basic right to be heard.

Three: Errors of Law

Error No. 1: Findings do not properly analyze the evidence before the Tribunal.

28Mr. Kanter submitted that there was a lack of analysis in paragraphs (56), (61), (65) and (66) of the “Findings” section of the Decision, as they relate to the relevance of the Appellant’s submissions during the public consultation process.

Error No. 2: Findings do not lead logically to the conclusion that the appeal should be dismissed.

29Mr. Kanter submitted that the fact that the Moving Parties agreed with one another is not grounds to dismiss the Appellant’s appeals.

30He argued that not all of the Appellant’s issues could be statute-barred by s. 17(37.1) of the Planning Act.

31Again, referring to paragraphs (61) and (65) of Member Tucci’s Decision, Mr. Kanter submitted that there is no evidentiary basis for the finding that none of the issues raised by the Appellant pertain to the Appellant’s own lands. He stated that the Tribunal relied entirely on the City’s written summary of its oral submissions to arrive at its conclusion, to which the Appellant did not have the opportunity to respond.

32Mr. Kanter also made reference to the Tribunal’s discretion pursuant to s. 17(45) of the Act to not dismiss the appeal. He opined that the Tribunal’s failure to provide reasons and properly interpret its empowering statutes is a clear error of law and violates the rules of natural justice and procedural fairness.

Error No. 3: Failed to provide adequate reasons.

33Mr. Kanter submitted that the Decision does not clearly set out the reasons, rationale or analysis leading to the conclusion to dismiss the appeal reached by the Tribunal. The failure to set out clear and express reasons for its Decision has been found by the courts to be an error of law, and by the predecessor to the Ontario Land Tribunal to constitute an error such that the Tribunal would likely have reached a different decision.

34In reference to Vavilov, Mr. Kanter stated that the court clarified that a reasonable decision is one that is both based on an internally coherent reasoning and justified in light of the legal and factual constraints that bear on the Decision.

35Mr. Kanter also referred to the case law of North End 2016 where Member Chee Hing granted the Orders sought by the City and dismissed the appeals without a hearing. A request for a review of the Decision was approved by former Associate Chair Wilson Lee, and ultimately Member Swinkin (North End 2017) allowed the motion for review, set aside the Decision of Member Chee Hing and remitted the case back for further direction and disposition.

36Mr. Kanter submitted that the reasons provided by the Member Tucci in the April 7, 2022, Decision were less clear, express and articulate than those in North End 2016 and North End 2017.

Error No. 4: Failed to consider s. 17(37.1) in the context of s. 17(45).

37Mr. Kanter submitted that s. 17(37.1) of the Act must be read in the context of s. 17(45) of the Act.

38Mr. Kanter further submitted that s. 17(45) states clearly that the Tribunal has discretion to consider whether or not to dismiss an appeal. The Tribunal is not required or statute-bound to dismiss an appeal if the Appellant has not provided the explanations required. Consequently, Mr. Kanter submitted that the Tribunal erred by failing to consider s. 17(37.1) in the context of s. 17(45) of the Act.

Error No. 5: Failure to provide notice of intention to dismiss without a Hearing.

39Mr. Kanter stated that the right of an Appellant to be heard is fundamental.

40He referred to the Ontario Land Tribunal Act, Section 19.2 where-by:

The Tribunal shall give the parties notice of its intention to dismiss the proceeding, setting out the reasons for the dismissal, and informing the Parties of their right to make written submissions to the Tribunal with respect to the dismissal within the time specified in the notice.

41Mr. Kanter submitted that the Tribunal failed to give the Appellant notice of its intention to dismiss the appeal. The Tribunal’s failure is particularly egregious in this case, because it decided on its own initiative, to dismiss the Appellant’s appeal in its entirety rather than in part as requested by the City and other Moving Parties.

Error No. 6: Applied s. 17(50.1) in error.

42Mr. Kanter submitted that the Appellant appealed all of OPA 26, except for a definition provision. Consequently, OPA 26 was not in effect at the date of the Hearing of the Motions to partially dismiss. He opined that the Tribunal erred in referring to s. 17(50.1) of the Act, since it is not relevant to the subject appeal.

43Mr. Kanter concluded by stating that if the presiding Member had interpreted s. 17(37.1) in the context of s. 17(45) of the Act and had exercised discretion with respect to dismissing the appeal in part, the Tribunal would likely have reached a different result with respect to partial dismissal.

44Furthermore, Mr. Kanter submitted that if the presiding Member had provided notice of his intention to dismiss the appeal in its entirety, the Appellant could have responded, and the Tribunal would likely have reached a different decision with respect to dismissing the appeal in full.

45Finally, Mr. Kanter submitted that, if the presiding Member had not relied on s. 17(50) of the Act, despite the fact that no substantive provisions of OPA 26 were in effect, he could not have relied on that provision as the basis for his Decision, in whole or in part, and the Tribunal would likely have reached a different conclusion.

Four: Request for Stay

46In his written and oral submissions, Mr. Kanter stated that OPA 26 was triggered by the closure of the former GM plant on lands now owned by Movengo. OPA 26 re-designates the Movengo lands from Employment to Mixed-Use. OPA 26 also re-designates the Whitty et al lands from Employment to Mixed-Use, or to a special study area permitting a mix of uses.

47Mr. Kanter told the Tribunal that, as a result of re-designating the above-noted employment lands for non employment uses and pursuant to a City Land Needs Assessment, OPA 26 re-designates other lands, including the Appellant’s lands, for long term employment uses as Employment Areas as defined in the Growth Plan for the Greater Golden Horseshoe.

48Mr. Kanter stated that compliance with OPA 26 would cause irreparable harm to his client’s lands. Designating all of the Appellant’s lands for long term employment uses virtually sterilizes his client’s lands and is contrary to the public interest.

49In closing, Mr. Kanter stated that his client is not opposed to allowing the long-term care facility to proceed on a small portion of the Fermo/Elite lands.

SUBMISSION BY CITY OF ST. CATHARINES

50Ms. Baker, on behalf of the City, reminded the Tribunal that Mr. Kanter’s early reference to his client’s private OPA is an application that remains before the City for a decision and is not a matter that is before the Tribunal.

51Ms. Baker also reminded the Tribunal that the Appellant’s lands have always been designated as Employment in the City’s existing Official Plan.

52Ms. Baker stated that the objective of OPA 26 was the protection of employment lands and is critical to the economic well-being of the City.

53She also opined that, as the designation of the Appellant’s lands is not on the Issues List, why have a Hearing at all?

54Ms. Baker submitted that the City had no involvement in the preparation of the Appellant’s list of issues, and that the City and other Parties expressed concerns regarding the proposed Issues List from the onset of this process. Ms. Baker further stated that there was not one single issue that related to a specific concern regarding the Appellant’s lands.

55Ms. Baker also reminded the Tribunal that extensive material was provided to the presiding Member in advance of the January 13, 2022, CMC.

56Ms. Baker submitted that the Motions were heard virtually over the course of an entire day, followed by written submissions of closing arguments that were submitted to the Tribunal Member shortly afterward.

57Ms. Baker also stated that the Tribunal accepted what had become abundantly clear over the course of the Hearing of the January Motions, namely that the relief the Appellant was seeking (which was the redesignation of its lands from employment to mixed-use in accordance with the private OPA) was not something that could be granted in any Hearing of the Merits because the Appellant’s Issues List had no issue on it which sought or even spoke to the re-designation of their lands.

58Ms. Baker then referred to Rule 25.7 of the Tribunal’s Rules of Practice and Procedure, which requires the Requestor to establish a “convincing and compelling case” that the Tribunal made one of the listed enumerated errors.

59The City of St Catharines submits that the Requestor (Appellant) has not discharged its onus with respect to the test under Rule 25.7.

60Ms. Baker made reference to case law Citizens Coalition of Greater Fort Erie, Re 2013 CarswellOnt 7871, where the former Ontario Municipal Board elaborated on what is required to meet this test. The Board explained that:

• A compelling case is one that is “so attractive as to be overpowering and irresistible”. It must lead the tribunal to conclude that it is “constrained from considering any other path” and “leaves no option but to grant the relief sought.”; and

• A convincing case is one that leads the tribunal to say “I am moved, I am sold, I am induced to commit to what you want me to do. There can be no shades of gray at the end of it; no remaining ambiguity blurring a request."

61Ms. Baker submitted that there is no merit to the suggestion that the Tribunal denied the Appellant its appeal rights. The Tribunal properly applied the law to the issues before it. To avail itself of its appeal rights, namely, to have a Hearing on the Merits, the responsibility was the Appellant’s to ensure that it filed a Notice of Appeal that met the statutory requirements. Specifically, it was required to explain how the decision to approve OPA 26 was inconsistent with the Provincial Policy Statement (“PPS”) or failed to conform with the Growth Plan or the Region’s Official Plan, if it intended to put forward such issues for determination in the Hearing of the Merits. Similarly, it was incumbent on the Appellant to raise issues that could result in the relief it sought being granted. The Appellant chose to frame its issues in the way that it did. The inevitable result of that choice was the dismissal of its appeal – a result that is contemplated by both the Act and the OLTA.

62Ms. Baker submitted that, contrary to the Appellant’s assertion, the Tribunal did not suggest that it dismissed the appeal because the Moving Parties agreed with one another. Rather, it noted that the Moving Parties were aligned in their submissions. At no point did it suggest that this was the basis for its Decision.

63Ms. Baker stated quite firmly that, when the January 13, 2022, Hearing took place, full dismissal of the appeal was on the table.

64She submitted that the Tribunal’s conclusions flowed inevitably from the fact that the Appellant’s Notice of Appeal did not state how OPA 26 was inconsistent with the PPS, the Growth Plan, or the Region’s Official Plan as required by subsection 17(37.1) of the Act, nor did the Appellant’s Issues List address the designation of its own lands at all. While the Appellant took issue with the re-designation of certain lands belonging to third parties, even if the Appellant argued those issues and succeeded, it could not obtain the result it sought, being the re-designation of its own lands from Employment to Mixed-Use. As such, the appeal and the Appellant’s Issues List had no ability to achieve the Appellant’s objective, which was to re-designate its own lands. The appeal therefore had “no reasonable prospect of success”.

There was No Error in the Tribunal’s Interpretation of s. 17(37.1).

65Ms. Baker submitted that the Appellant incorrectly argues that the Tribunal erred in its interpretation of s. 17(37.1) of the Act. However, there was ample case law that supported the Tribunal’s interpretation (some of which was cited in the Tribunal’s reasons). In these circumstances, the Appellant cannot establish a convincing and compelling case that the Tribunal made a legal error that would have affected the result.

66Ms. Baker stated that, in suggesting that the Tribunal had discretion under s. 17(45) not to dismiss the appeal even though the Notice of Appeal ran afoul of the mandatory requirement in s. 17(37.1), the Appellant urges the Tribunal to adopt an interpretation that would render the wording of s. 17(37.1) meaningless. A basic principle of statutory interpretation is the presumption that “the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose.” The Appellant’s interpretation could not have been accepted in light of this principle.

Applied s. 17(50.1) in error

67Ms. Baker also submitted that there was no error in the Tribunal’s application of s. 17(50.1). This section was fully argued in the January 2022 Motion and raising it here is simply an attempt to re-argue the January 2022 Motion. Moreover, even if there was an error in the Tribunal’s application of subsection 17(50.1), as set out above, subsection 9(4) and 19(1) of the OLTA clearly gave the Tribunal the jurisdiction to dismiss the appeal in its entirely.

The Requestor had Proper Notice

68Ms. Baker submitted that the Appellant argues that the Tribunal erred in law by failing to give notice of its intention to dismiss the appeal without a hearing. As already explained, the Appellant was on notice that this was a potential result, and it had full opportunity to make oral and written submissions.

The Appellant Has Not Met the Test for a Stay

69Ms. Baker submitted that the Appellant must satisfy a high bar in order to obtain a Stay of the Motion Decision. The test applicable to stays of this nature is the same test applied by the courts in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), 1994 CarswellQue 120 (SCC) (the RJR-MacDonald test):

• Is there a serious issue to be tried?

• Would the failure to grant a stay cause irreparable harm to the party seeking the stay?

• Does the balance of convenience favour the party seeking the stay?

70Ms. Baker concluded by stating that the lands of the other Parties are being held hostage during the delay caused by this process.

71In her written and oral submissions, Ms. Baker highlighted several case law references, including but not limited to:

• Russell v. Toronto (City), 2000 CanLII 17036 (ON CA), 2000 CarswellOnt 4876

• Agnaou v. Canada (Attorney General), 2015 FCA 29

• Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4

• Winters v. Legal Services Society, 1999 CanLII 656 (SCC), [1999] 3 S.C.R. 160

SUBMISSION BY 2496582 ONTARIO INC. (“MOVENGO”)

72Movengo is the owner of the former General Motors (“GM”) lands in St. Catharines.

73Ms. Smith, on behalf of Movengo, first expressed her concern that the Appellant’s request for review is not convincing nor is it compelling. She opined that no erroneous understanding of the law fueled Member Tucci’s Decision.

74Ms. Smith stated that the Tribunal, in her opinion, acted within its jurisdiction with full adherence to the principles of natural justice and committed no error of law, let alone one that would likely lead to a different decision.

75Ms. Smith told the Tribunal that, among other things, OPA 26 re-designated two sites from an Employment designation to a Mixed-Use designation to support opportunities for both future housing and jobs. The impetus for OPA 26 was the loss of a large industrial user on the former GM lands, which rendered the land vacant and underutilized.

76Movengo participated in the process leading up to OPA 26’s approval, making submissions supporting the OPA and the resulting re-designation of the former GM lands. Ms. Smith went on to state that the Appellant also made submissions during the process, however those submissions spoke solely to its own lands which are approximately 18 hectares located in the Port Weller Community of the City outside the OPA 26 boundary.

77Ms. Smith submitted that the Appellant’s submissions did not speak to any lands actually affected by OPA 26.

78Ms. Smith also agreed with the City's submission that this request is causing an inefficient use of the Tribunal’s resources and creating an unnecessary delay in the approval process.

79She submitted that granting a review request is an extraordinary remedy requiring a high threshold, quoting from 8700443 Canada Inc. v. Brampton (City), 2019 LNONLPAT 1199:

It is only in rare or extraordinary cases that the Tribunal will direct that a rehearing is to be held. The moving party must demonstrate a convincing and compelling case that there are errors in the Tribunal decision that warrant a rehearing of the appeal. The Tribunal’s role in this motion is not to determine the correctness or reasonableness of the Tribunal decision in question, but to determine whether the decision was made on an erroneous understanding of the law or a mistaken understanding of the evidence.

80In her own words, Ms. Smith stated that the review request must be convincing, compelling, overpowering and irresistible. The Tribunal must think “I am moved by your critique of Member Tucci’s work”.

81Ms. Smith submitted that the Appellant repeatedly mischaracterizes the Motions as partial dismissal requests only. This mischaracterization requires context and correction.

82The Motions focused on the Appellant’s Issues List. The City, Region and Movengo each addressed different issues and relied on each other for the other issues. The only issue not expressly addressed as part of this coordinated approach was issue 4.

83The City’s Motion (relied on and adopted by Movengo) went beyond the issue focused approach, however. It specifically included Section 17(50), (50.1) and 19 of the Act in par. 52 – Statutory and Other Grounds and sought full dismissal. The City’s Motion Record is unequivocal in pars. 50 and 51:

No Issue Relating to Appellant Lands

50. 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.

51. Section 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.” By virtue of this provision, the Appellant is statute-barred from having the Appellant Lands redesignated through an appeal of OPA 26. Consequently, as the objective of the appeal cannot be achieved, there is no reasonable prospect of success and the appeal should be dismissed.

84Ms. Smith strongly submitted that, given the above, the Tribunal was well within its jurisdiction to grant a full dismissal. The City asked for it and Movengo supported the ask.

85The City asked for full dismissal with reference to the applicable legislation and Movengo supported the ask. Any suggestion that the Appellant was denied an opportunity to address this ask is wrong.

86Ms. Smith also spoke to the Appellant’s submission that s. 17(50.1) of the Act does not apply. She stated that the Appellant claims that the “plan in effect” refers to OPA 26. This makes no sense. If the “plan in effect” means the appealed plan, s. 17(50.1) is rendered meaningless as appealed plans are never in effect.

87Ms. Smith submitted that the “plan in effect” means the Official Plan that applies to the Appellant’s lands that the Appellant seeks to amend. That plan is not before the Tribunal for amendment through OPA 26 as there are no mapping changes that apply to the Appellant’s lands. Section 17(50.1) therefore bars the Tribunal from granting the Appellant what it seeks through its Notice of Appeal.

88Ms. Smith further opined that this is exactly what the Tribunal concluded since there is no reasonable prospect of success on the appeal.

89Ms. Smith concluded by submitting that the Request for Review does not demonstrate a convincing and compelling case that there are errors in the Tribunal Decision and that it should be denied.

SUBMISSION BY NIAGARA REGION

90Ms. Sliwa spoke to the Tribunal on behalf of the Region.

91Ms. Sliwa submitted that the Region fully supported the position of both the City and Movengo, and asked that the Tribunal dismiss the Appellant’s request and uphold the Decision of the Tribunal dated April 7, 2022.

92Ms. Sliwa submitted that the Appellant has failed to demonstrate a compelling case to review the Decision, and that the arguments are flimsy and unsubstantiated.

93The Region respectfully agrees with and supports the Tribunal’s Decision with respect to the Motions. The Appellant was not satisfied with the Decision of the Tribunal and is now attempting to re-litigate the Motion.

94Ms. Sliwa fully supported the Tribunal’s Decision, and confirmed, in her opinion, that the objective of the appeal could not be achieved and there was no reasonable chance of success.

95She agreed with the Tribunal’s dismissal of the appeal based on the finding that, even if the one remaining issue was litigated, the Appellant would not have achieved the result sought, being the conversion of the lands from employment to residential.

96Ms. Sliwa then took the Tribunal to Rule 15.4 of the Tribunal’s Rules of Practice and Procedure, which states that:

the Tribunal may, on its own initiative and without a hearing event, dismiss a matter by adjudicative order where:

a. The initiating matter is frivolous, vexatious or is commenced in bad faith;

b. The initiating matter deals with matters that are outside the jurisdiction of the Tribunal; or

c. Some aspect of the statutory requirements for bringing the proceeding has not been met.

97Ms. Sliwa submitted that the Tribunal has the jurisdiction to dismiss an appeal where one of the above conditions is met. This jurisdiction and authority is confirmed in various case law including the cases of Dunwest Development Inc. v Barrie (City), 55 O.M.B.R 375, Stephens v Simcoe (County), 2001 CarswellOnt 7131, Dungey v Stratford (City), 2021 CarswellOnt 5899, and Bernatt, Re, 56 O.M.B.R 5.

98Ms. Sliwa made particular reference to a leading case with respect to the Tribunal’s jurisdiction to dismiss an appeal, being East Beach Community Assn v Toronto (City), [1996] OMBD No 1890 (“East Beach”).

99Ms. Sliwa submitted that in East Beach, the former Ontario Municipal Board stated:

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 reasons for fear of being struck down. What these particular provisions allow the Board to do is to seek out whether there is authenticity in the reasons stated, whether there are issues which should affect a decision in a hearing, and whether the issues are worthy of the adjudicative process.

100Ms. Sliwa repeated that the Tribunal has the jurisdiction to dismiss the whole of an appeal where there is no reasonable prospect of success. Similar to the Tribunal’s Decision in this matter, the Tribunal in Manning Development Inc. v Lakeshore (Town), 2021 CarswellOnt 13122 exercised this discretion and specifically stated that the Tribunal may dismiss a proceeding without a hearing if it is of the opinion that there is no reasonable prospect of success.

Errors of Law

101Ms. Sliwa methodically reviewed each of the purported errors of law, and firmly disagreed with the Appellant’s assertions.

102Ms. Sliwa stated the Appellant’s Request itemizes six (6) alleged errors of law but does so in a piecemeal method without identifying specific components of the evidence. The Decision, when read by a ‘reasonable and rational reader’, as stated in Sajecki is understandable and leads the reader to a clear understanding of how presiding Member Tucci reached his decision.

103The Region wholly disagrees with the arguments made in paragraphs 76 to 79 of the Appellant’s Request for Review. In this case, the Tribunal heard from both the Appellant and the Responding Parties, in relation to the Responding Parties request for a dismissal of the various issues. At the Case Management Conference, the Appellant ought to have known that one of the purposes was for the Tribunal to consider whether to dismiss the appeal in full rather than just in part. The Appellant provided reasons as to why the appeal should not have been dismissed. The Tribunal then reserved its judgement and later released its Decision.

104Ms. Sliwa submitted that the Tribunal did not simply dismiss the appeal. The Appellant was provided with an opportunity to make submissions. The Appellant was aware that the Tribunal could make a Decision of whether or not to dismiss the appeal. The Appellant had ample notice and had the opportunity to make submissions to the Tribunal respecting same during the January 13, 2022 CMC, and had actually done so through written and oral submissions.

105Ms. Sliwa stated that the Tribunal has the jurisdiction to make the Decision and the presiding Member did not err in fact or law in coming to its Decision. As such, the Request for Review does not set out any grounds upon which the Tribunal should allow all or part of the requested relief.

106Ms. Sliwa concluded by submitting that the Appellant is simply attempting to re-litigate the Decision because the Appellant did not like the outcome.

SUBMISSION BY WHITTY ET AL, ELITE AND FERMO

107Mr. Richardson, while not providing written submissions to the Tribunal, made a brief oral submission on behalf of his collective clients whose development plans are in abeyance while this review process is underway.

108Mr. Richardson stated that this has been a costly, lengthy and daunting process for his clients, and he fully supported the submissions of the City, Region and Movengo.

109Mr. Richardson respectfully asked the Tribunal to deny the relief requested by the Appellant, and in particular the request for a Stay of OPA 26.

ANALYSIS AND DISPOSITION

110The sole issue for determination in this Request for Review is whether the Appellant has met the test set out in Rule 25.7 of the Tribunal’s Rules of Practice and Procedure for granting a review of Member Tucci’s prior Decision or a re-hearing of the appeal.

111Rule 25.7 requires the Appellant to establish a “convincing and compelling case” that the Tribunal made one of the enumerated errors in this Rule. The Tribunal accepts the submissions of the responding Parties.

112In this case, the Appellant has relied on paragraphs (a) through (c) of Rule 25.7, but at no time has Mr. Kanter established a convincing and compelling case that an error has been made such that the Tribunal either acted outside its jurisdiction (25.7(a)); violated the rules of natural justice or procedural fairness (25.7 (b)); or made an error of law or fact such that the Tribunal would likely have reached a different decision (25.7(c)).

113The Tribunal notes that, it is important to bear in mind that from the outset, the result sought by the Appellant was the conversion of its own lands from Employment to Mixed Use. Prior to the adoption of OPA 26, the Appellant’s lands were designated Employment. OPA 26 did not change the land use permissions for the Appellant’s lands.

114The Tribunal understands that the Appellant is not happy with the April 7, 2022 Decision, and is attempting to “stay in the game” with this review request.

115However, after an extensive review of the previous submissions from the Parties, a careful review of Member Tucci’s Decision and the recent written and oral submissions from the Parties, the Tribunal does not find that the Appellant’s Request for Review is convincing and compelling.

ORDER

116The Tribunal Orders that the Motion Request for Review and a Stay of Official Plan Amendment 26 is hereby dismissed.

“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.