Orchard v. London (City), 2022 CanLII 88416

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 22, 2022

CASE NO(S).: OLT-22-003859

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: John Orchard

Subject: Proposed Official Plan Amendment No. 756

Municipality: City of London

OLT Case No.: OLT-22-003859

OLT Lead Case No.: OLT-22-003859

OLT Case Name: Orchard v. London (City)

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

Appellant: John Orchard

Subject: By-law No. Z.-1-223019

Municipality: City of London

OLT Case No.: OLT-22-003860

OLT Lead Case No.: OLT-22-003859

PROCEEDING COMMENCED UNDER subsection 17(45) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Motion Request by: 242593 Ontario Inc. & City of London

Purpose of Motion: Request for an Order dismissing the appeal

Appellant: John Orchard

Subject: Proposed OPA 756 & By-law No. Z.-1-223019

Municipality: City of London

OLT Case No.: OLT-22-003859

OLT Lead Case No.: OLT-22-003859

Heard: September 6, 2022 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
John Orchard	Self-represented
City of London	Aynsley Anderson* and Christina McCreery*
242593 Ontario Inc.	Analee Baroudi*

DELIVERED BY C. HARDY AND ORDER OF THE TRIBUNAL

INTRODUCTION

1242593 Ontario Inc. (“Applicant”) and the City of London (“City”) have jointly brought a Motion to Dismiss seeking an Order of the Tribunal dismissing without a full hearing the appeal by John Orchard (“Appellant”) against the decision of the City to adopt Official Plan Amendment 756 (“OPA”) and Zoning By-law Amendment Z.-1-223019 (“ZBA”).

2The Applicant owns the land municipally known as 517, 521 and 525 Fanshawe Park Road East, London (“Subject Property”) and proposes to develop thereon a 6-storey apartment building consisting of 99 residential units (“Proposed Development”). In order to give effect to the Proposed Development, applications for an OPA and ZBA (“Applications”) were submitted to the City. The OPA sought to amend the 1989 City of London Official Plan (Repealed) (“1989 OP”) to redesignate the Subject Property from Low Density Residential to Multi-Family, High Density Residential. The ZBA sought to re-zone the Subject Property to a site specific, special regulation Residential (R9-7()) zone with a Bonus Zone Provision (B-()) for increased density. The proposed bonusing features in the ZBA included underground parking, exemplary architectural design and affordable housing.

3The City accepted the complete Applications in October 2021 for the Proposed Development. The Applicant held a Virtual Open House / Community Information Meeting on December 20, 2021, where a number of concerns were raised by the public.

4In a report dated March 28, 2022 (“Staff Report”), City staff recommended that Council refuse the ZBA requesting the Residential R9 Special Provision Bonus Zone since it does not meet the OP policies. The Staff Report recommended that Council approve the OPA as requested and approve the amended ZBA modifying the zoning to Residential R8 Special Provision Bonus (R8-4()*B-()) Zone.

5On April 12, 2022, the OPA and ZBA were approved by City Council, subject to the modification recommended by City staff. The Appellant appealed the OPA and ZBA on May 11, 2022.

PRELIMINARY MATTER – PARTY REQUESTS

6The Tribunal received three requests for Party status in advance of the Motion. The requests were made by the following residents: Anna Ackland, Greg Ackland and Tucker Morton.

7The Tribunal canvassed the Parties and both counsel for the Applicant and counsel for the City objected to the Party requests being dealt with in advance of the Motion to Dismiss. Both counsel submitted that the appropriate time to deal with Party requests is at a Case Management Conference (“CMC”) and not at a Motion to Dismiss, which may in fact determine that the appeal is invalid.

8The Tribunal determined that the Party requests were premature and more appropriately dealt with during a CMC in the event the Motion to Dismiss is denied and the appeal proceeds to a merit hearing.

GROUNDS FOR APPEAL

9The Appellant is a homeowner in the vicinity of the Subject Property. His grounds for appeal stated in the Notice of Appeal Form are as follows:

The Zoning By-Law Amendment and Official Plan Amendment is inconsistent with the Provincial Policy Statement (PPS) including but not limited to Clause 1.1.3.4, the Official Plan for the City of London Planning Area (1989), and The London Plan.

10The Appellant checked the box in section 3A of the Notice of Appeal Form indicating that he will argue that the decision fails to conform with the City Official Plan (“OP”).

THE MOTION HEARING

11The Applicant and the City (together referred to as “Moving Parties”) are jointly seeking an order dismissing the appeal without a hearing. The primary argument of the Moving Parties is that the Notice of Appeal Form does not contain reasons and explanations as is required by the Planning Act, R.S.O. 1990, c. P.13 (“Act”) and is therefore invalid pursuant to s. 17(45)(2) and (3) and s. 34(25)(2) and (3) of the Act. The secondary argument of the Moving Parties is that the Notice of Appeal Form does not disclose apparent land use planning grounds upon which the appeal could be granted pursuant to s. 17(45)(1)(i) and s. 34(25)(1)(i) of the Act and that the appeal has no reasonable prospect of success pursuant to s. 19(1)(c) of the Ontario Land Tribunal Act, R.S.O. 2021, c. 4, Sched. 6 (“OLTA”) (“Motion to Dismiss”).

12The materials before the Tribunal on the Motion to Dismiss included the following exhibits:

Exhibit 1A: Applicant and City Notice of Motion Record
Exhibit 1B: Affidavit of Service of Hesham Baroudi
Exhibit 1C: Applicant and City Legal Submissions and Authorities Brief
Exhibit 2A: Notice of Response to Motion
Exhibit 2B: Affidavit of Service of John Orchard
Exhibit 2C: Appellant Evidence Report
Exhibit 3A: Notice of Reply to Motion Record
Exhibit 3B: Affidavit of Service of Hailee Verhoeven.

Legislative Regime

13The Act and the OLTA establish criteria for the consideration of dismissing an appeal without a full hearing on the merits. The relevant sections are set out below for ease of reference.

14 Section 17(45) of the Act provides the following:

Despite the Statutory Powers Procedure Act and subsection (44), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

The Tribunal is of the opinion that,

i. The reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the plan or part of the plan that is the subject of the appeal could be approved or refused by the Tribunal…

The appellant has not provided written reasons with respect to an appeal under subsection (24) or (36).

The appellant intends to argue a matter mentioned in subsection (25.1) or (37.1) but has not provided the explanations required by that subsection.

15 Section 17(25.1) of the Act provides the following:

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.

16 Section 34(25) of the Act provides the following:

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

The Tribunal is of the opinion that,

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

The appellant has not provided written reasons for the appeal.

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

17 Section 34(19.0.1) of the Act provides the following:

If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3(1), fails to conform with or conflicts with a provincial plan or fails to conform with an applicable 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.

18Section 19(1) of the OLTA states:

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

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

19The grounds for dismissing an appeal are disjunctive. In other words, only one of the several grounds set out in the Act and the OLTA must be satisfied to warrant dismissing an appeal.

Moving Parties’ Position on the Motion to Dismiss

20The Moving Parties submit that the Appellant’s appeal should be dismissed as the Notice of Appeal Form does not contain the required reasons and explanations, does not contain land use planning grounds on which the appeal could be granted and has no reasonable prospect of success.

Primary Argument: [s. 17(45)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec17subsec45_smooth)(2) and [(3)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec17subsec3_smooth) and [s. 34(25)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec34subsec25_smooth)(2) and [(3)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec34subsec3_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

21The primary argument of the Moving Parties is that the Notice of Appeal Form does not contain reasons or explanations as required under the Act and is therefore invalid making it unnecessary for the Tribunal to consider the secondary argument.

22The Moving Parties argue that the Appellant has simply provided brief assertions that the OPA and ZBA are inconsistent with the Provincial Policy Statement, 2020 (“PPS”) and do not conform to the 1989 OP or the City OP. No reasons or explanations have been provided. It is submitted that it is unclear which sections of the OP are of concern to the Appellant and even if sections had been listed, the Appellant has the onus to explain how the sections do not conform to the policies with reference to specific facts. The Moving Parties acknowledge that the Appellant did list one section of the PPS, however, they submit that the Appellant failed to explain how this section was inconsistent with reference to specific facts.

23The Moving Parties argue that s. 17(25.1) and s. 34(19.0.1) of the Act contain mandatory legislative requirements for appeals of an OPA and ZBA. Both sections state that the notice must (emphasis added) explain how the decision or the ZBA is inconsistent with the PPS or fails to conform with the OP.

24The Moving Parties rely on the decision of the Ontario Municipal Board (“OMB”) in Patry v. Kingston (City), 2019 CarswellOnt 2478 (“Patry”) which considers what constitutes an adequate explanation in a Notice of Appeal Form. The OMB held that

It is a matter of common sense that an explanation must “explain” by answering the question of how or why. The Act simply requires an appellant to explain for what reason, in what way or in what manner, and upon what facts, the appellant asserts that the instrument in question does not conform with, conflicts with, or is inconsistent with, the provincial policies or the official plan.

The Moving Parties argue that in this case, reasons and explanations raised by the Appellant in response to the Motion to Dismiss do not rectify the appeal. These reasons and explanations were required to be included in the Notice of Appeal Form and were not.

25Once the test was set out in the Patry case, the OMB went on to find that the Board does not have the authority to allow an appellant to amend the Notice of Appeal Form to make valid what is invalid. The OMB at paragraph 71 found that

…although self-represented litigants may be granted some degree of accommodation or latitude for their circumstances, this will never excuse a litigant from compliance with the law and statutory requirements which shall be equally applied to all litigants and parties…The Tribunal may have some degree of flexibility in the application of its own Rules. No such flexibility exists in relation to the mandatory requirements of the Act.

The Moving Parties argue that when submitting an appeal, an appellant must be well versed in the law and statutory requirements. A fair hearing can only occur on the basis of consistent rules and the consistent application of those rules. In this case, the Appellant did not satisfy the mandatory requirements set out in the Act to provide reasons and explanations in the Notice of Appeal Form.

26The Moving Parties also rely upon Huzan v. Oliver Paipoonge (Municipality), 2020 CanLII 1430 where the Tribunal applied the analysis from Patry and dismissed the appeal on the basis that the required explanations were not set out in the Notice of Appeal Form.

27The Moving Parties brought the Tribunal to the case of Milton v. Ottawa (City), 2022 CarswellOnt 3941 (“Milton”) where the appellant did set out sections of the Act and the PPS in the Notice of Appeal Form. However, there were no reasons provided to demonstrate how the sections would lead to inconsistency with or non-conformity with the Act or the PPS. The Tribunal found that simply setting out sections and policies does not amount to the required explanation. The Moving Parties submit that in this case, the Appellant did list one section of the PPS in his Notice of Appeal Form, but similar to Milton, did not provide any reasons which could lead to a finding of inconsistency with the PPS.

28The Moving Parties submit that the Tribunal should apply the test in Patry and find that the Appellant has not answered the “how” or “why” and further that the Tribunal has no jurisdiction to modify the mandatory requirements set out in the Act, nor exempt the Appellant from the mandatory requirements. The Moving Parties further submit that no reasons were provided to demonstrate that the section of the PPS referenced by the Appellant would lead to a finding of inconsistency with the PPS. For these reasons alone, the Motion to Dismiss should be allowed and the appeal should be dismissed.

Secondary Argument: s. 17(45)(1)(i), s. 34(25)(1)(i) Act and s. 19(1)(c) of the OLTA

29The secondary argument put forward by the Moving Parties is that the Notice of Appeal Form does not disclose any apparent land use planning grounds upon which the appeal could be granted and further that the appeal has no reasonable prospect of success.

30The Moving Parties rely on the decision of Maniatis v. Fort Erie (Town), 2022 CarswellOnt 7228 (“Maniatis”) which confirmed that it is not enough to state mere apprehensions but rather that the Tribunal is entitled to examine reasons, which need to be stated in the appeal, to determine whether there are legitimate land use planning grounds raised. The Tribunal in Maniatis further found that “(T)he proposed development is fully supported by the necessary assessments, reports and the relevant policy framework.” The Moving Parties submit that similar to Maniatis, the Appellant has merely raised apprehensions without reasons. The sworn Affidavits of Nancy Pasato and Dave Hannam found at Tabs 2 and 3 of Exhibit 1A confirm that the OPA and ZBA are supported by the materials contained in the Applications and the policy framework and represent good land use planning that is in the public interest. Consequently, a merit hearing would be a waste of resources.

31An alternative argument put forward by the Moving Parties is that s. 19(1)(c) of the OLTA sets out a further ground upon with the Appellant’s case should be dismissed. The test under this section is whether there is no reasonable prospect of success.

32The Moving Parties rely on Beta Management Inc. v. Edmonton (City), 2017 CarswellAlta 2654 and 2355440 Ontario Inc. v. London (City), 2022 CarswellOnt 12640 as authorities for the test that it is not merely the possibility of success. Rather, the word “reasonable” suggests probability and in the context of a proceeding under the Act, competing evidence is necessary. The Moving Parties submit that the Appellant has not indicated an intent to call any experts to dispute the evidence put forward by the opinion evidence of the Moving Parties. Further, the Notice of Appeal Form does not set out explanations and no serious arguable point has been raised and as such, there is no reasonable prospect of success.

The Appellant’s Position on the Motion to Dismiss

33The Appellant opposes the Motion to Dismiss and submits that the City rendered a decision on the OPA and the ZBA that is non-conforming and non-compliant to all relevant policy.

34The Appellant submitted to the Tribunal a comprehensive “Evidence Report” containing reports, video/audio recordings of public meetings, email communications and other publications which were compiled by a group of concerned neighbours.

35The Appellant went through the Evidence Report with the Tribunal and submits that it demonstrates that Councillors had differing opinions on the Applications, there were no objective criteria used in the evaluation of the Applications and that the decision dismissed relevant policies, as well as dismissed the concerns of the neighbours.

36The Appellant further argues that the City did not follow their own planning steps when processing the Applications. In particular, he argues that public comments were not considered by Council and there has been a lack of public accountability and transparency in the process undertaken by Council.

37In his oral submissions, the Appellant submits that the deficiencies in his Notice of Appeal Form were not serious. He notes that he has not been through an appeal process before and has exercised due diligence to ensure timelines have been met and that he has complied with relevant requirements and rules. In an effort to do so, he attended the City Hall and met with City staff to ensure that he had completed the Notice of Appeal Form properly and he notes that City staff did not advise him that the Notice of Appeal Form was incomplete. Further, the Appellant submits that he received a letter on June 9, 2022 from the Tribunal acknowledging receipt of his appeal and the letter stated that the Tribunal may notify parties by letter regarding deficiencies. The Appellant argues that if the deficiencies in his Notice of Appeal Form were so serious that his appeal had no reasonable prospect of success, the Tribunal would not have opened his case, or would have written him to allow him to correct the Notice of Appeal Form.

38The Appellant notes that the Evidence Report contains audio and video recordings and statements of Councillors relating to concerns with the Application, including traffic concerns and shadowing. He submits that the Moving Parties argument that the Appellant did not present any expert evidence implies that the staff at the City are not qualified to do their jobs.

ANALYSIS AND FINDINGS

39The Tribunal finds that the relief sought in the Motion to Dismiss should be granted.

40The Tribunal agrees with the submissions put forward by the Moving Parties that the Notice of Appeal Form does not contain reasons and explanations as are required by the Act. It is important to keep in mind that the grounds for dismissing an appeal are disjunctive and this finding alone is sufficient to warrant dismissing the appeal. However, the Tribunal further finds that there are no apparent land use planning grounds upon which the appeal could be granted, and the appeal has no reasonable prospect of success.

41The Tribunal was presented with the uncontested and comprehensive affidavits of Ms. Pasato and by Mr. Hannam, both land use planners in support of the Motion to Dismiss.

42The Tribunal also had the benefit of an extensive Evidence Report of the Appellant entered as Exhibit 2C. However, the Tribunal notes that the Appellant did not provide any contrary expert evidence in support of any of the grounds of appeal nor in support of his request of the Tribunal to deny the Motion to Dismiss. This is in the face of affidavit evidence from Ms. Pasato and Mr. Hannam stating that there are no issues with conformity nor consistency and that the grounds for the Motion to Dismiss have been met. Further, Rule 10.6 of the Tribunal’s Rules of Practice and Procedure stipulate that the Notice of Response to Motion materials shall (emphasis added) contain an affidavit setting out a brief and clear statement of the facts upon which the responding party will rely. This was not included in the Notice of Response to Motion materials submitted by the Appellant.

43The Tribunal does not attach weight to opinion evidence that is given by a witness lacking expert qualifications. It is not disputed that the Appellant can provide factual evidence or evidence about things known to him; however, no weight can be given to opinion evidence provided in areas that contain certain expertise, such as land use planning.

44The Tribunal would further note that the use of the word “evidence” was loosely utilized during the Motion to Dismiss. The Appellant has referred to the supporting documentation filed with the Notice of Response to Motion as an “Evidence Book”; however, none of the statements contained within the document were sworn. In no way is the Tribunal finding that City staff are unqualified to perform their jobs; however, the recordings and statements in the Evidence Report were not sworn statements provided by qualified experts in the field of land use planning. Evidence must be presented to the Tribunal through sworn affidavits or through sworn testimony and the Appellant failed to do so.

45The Tribunal finds that the Notice of Appeal Form filed by the Appellant was deficient. The Appellant did not reference additional facts or specific policies in the Notice of Appeal Form, but for policy 1.1.3.4 of the PPS, to explain how the stated grounds of appeal led to inconsistency with the PPS or a lack of conformity with the 1989 OP or the City OP. Further, the Appellant checked the box in section 3A of the Notice of Appeal Form indicating that he will argue that the decision fails to conform with the City OP, but did not provide any reasons as is required in section 3A. Further, in section 3A of the Notice of Appeal Form, the Appellant did not check the box indicating that he will argue that the decision is inconsistent with the PPS; however, the Appellant did indicate in his reasons for appeal that he would be arguing inconsistency with the PPS.

46The Tribunal acknowledges that the Appellant is not familiar with the process and put forth best efforts to ensure compliance with the legislation and rules. However, it is not the role of the Tribunal, nor the City, to review appeal documentation to ensure that it is completed properly and completely. Nor is it the role of the Tribunal to screen Notice of Appeal Forms to ensure that they contain sufficient reasons to be adjudicated at a merit hearing.

47In the present case, the Appellant is required to provide explanations or reasons to be adjudicated at a merit hearing that could lead to a finding of inconsistency with the PPS or lack of conformity with the City OP. The Tribunal agrees with the Moving Parties that the Appellant has failed to satisfy this requirement. The Appellant did not specify any sections of the City OP that lacked conformity and did not provide facts to support how the ZBA and the OPA were inconsistent with the one section of the PPS that was cited. The Appellant has not met the test set out in Patry, supra, they did not answer the “how” or “why” to provide a sufficient explanation to satisfy the requirements set out in the Act. The language in the Act is mandatory – the notice must (emphasis added) explain how the decision or the ZBA is inconsistent with the PPS or fails to conform with the City OP. The Tribunal has no discretion in this regard and the Motion to Dismiss must be allowed on this ground alone.

48The Appellant raises concerns related to inconsistencies with the PPS, the City OP and the 1989 OP, but fails to set out proper land use planning grounds. In the Notice of Appeal Form, the Appellant does not link his concerns to applicable policies or set out proper grounds upon which to form the basis of an appeal. It is insufficient to make broad statements about inconsistency and incompatibility without substantiating or intending to substantiate the claims with evidence upon which the Tribunal can rely. The Appellant did provide an extensive Evidence Report entered as Exhibit 2C, however, it was not accompanied by an expert affidavit and as such, the apprehensions have not been substantiated in a meaningful way to enable the Tribunal to find that the Appellant has raised a genuine land use planning ground.

49The Tribunal is sympathetic to the challenges faced by self-represented appellants in complying with requirements under the Act without the assistance of legal counsel. The Tribunal agrees with the Moving Parties that some latitude is afforded to self-represented parties in this regard; however, the Tribunal does not have the jurisdiction to excuse parties from compliance with statutory requirements set out in the Act. To allow the appeal to proceed would in effect be permitting the Appellant to amend the Notice of Appeal Form outside of the statutory timeframe within which the appeal must be filed. Statutory requirements and rules must be consistently applied and adhered to in order to ensure the appeal process is fair and just.

50After careful consideration of the materials presented by the Parties and each of their submissions, the Tribunal finds that in the absence of any reasons or explanations being provided and no apparent land use planning grounds upon which the appeal could be granted, the appeal has no reasonable prospect of success. It is therefore, an appropriate case for dismissal pursuant to s. 17(45)(1)(i), (2) and (3), s. 34(25)(1)(i), (2) and (3) of the Act and s. 19(1)(c) of the OLTA.

ORDER

51THE TRIBUNAL ORDERS that the Motion to Dismiss is granted and the appeal by John Orchard is hereby dismissed.

52This is the Order of the Tribunal.

“C. Hardy”

c. hardy

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.