Leopoldina Gomes v. Toronto (City), 2022 CanLII 93032

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

October 04, 2022

CASE NO(S).:

OLT-22-002761

(Formerly MM130042)

PROCEEDING COMMENCED UNDER subsection 42(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant:

Leopoldina Gomes

Subject:

Determination of the value of land

Property Location/Description:

487 Markham Street

Municipality:

City of Toronto

OLT Case No.:

OLT-22-002761

Legacy Case No.:

MM130042

OLT Lead Case No.:

OLT-22-002761

Legacy Lead Case No.:

MM130042

OLT Case Name:

Leopoldina Gomes v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by:

City of Toronto

Request for:

Request for Dismissal Without a Hearing

Heard:

Written Request to Tribunal

APPEARANCES:

Parties

Counsel*/Representative

City of Toronto

Derin Abimbola* and Michael Mahoney*

Leopoldina Gomes

Oscar Gomes

DECISION DELIVERED BY M. ARPINO AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This decision flows from a Motion filed by the City of Toronto (“City”) seeking dismissal of the appeal filed by Leopoldina Gomes (“Appellant”). The Tribunal directed the Motion be submitted in writing.

BACKGROUND

2On May 14, 2013, the Appellant appealed to the Ontario Land Tribunal, (“Ontario Land Tribunal”), pursuant to s. (42(10) of the Planning Act. The Appellant seeks a refund of Park Levy fees which were paid in relation to the development of the land at 487 Markham Street (“Appeal”).

3The Tribunal sent a letter to the Appellant on January 14, 2020, requesting an update on the status of the Appeal. The Tribunal stipulated “Should you fail to provide the requested submissions by this date, February 13, 2020, the Tribunal may dismiss the matter by order, without further notice and without holding a hearing event”. The Appellant did not respond.

4On January 19, 2022, the Tribunal sent a second letter to the Appellant requesting information regarding status of the Appeal. The Tribunal stipulated that it required a reply prior to February 18, 2022. The Appellant failed to reply to the Tribunal.

5The letters were both sent by express mail to the Appellant’s representative, neither letter was returned to the Tribunal as undeliverable.

6The City filed the Motion seeking dismissal of the Appeal pursuant to s.19(1) of the Ontario Land Tribunal Act (“OLTA”) which provides:

19 (1) Subject to subsection (4), the Tribunal may, on the motion of any

party or on its own initiative, dismiss a proceeding without a hearing,

(a) if the party who brought the proceeding has not paid any fee

required to be paid under this Act;

(b) if the party who brought the proceeding has not responded to a request by the Tribunal for further information within the time specified by the Tribunal;

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

(d) in any circumstance listed in subsection 4.6 (1) of the Statutory Powers Procedure Act; or

(e) in any circumstance provided for under any other Act.

7The City submits that the Appeal should be dismissed. It asserts that the Appellant neglected to take any steps to advance the Appeal and failed to respond to the Tribunal. The City states that the Appellant’s conduct is tantamount to abandonment of the Appeal.

8The City maintains that in circumstances where an Appellant fails to take action regarding an appeal and fails to respond to the Tribunal, the Appellant has forfeited its right to appeal.

9As basis for this assertion the City relies on of the decision of Member J.R. Boxma in Bernardo (c.o.b. Bernardo Brothers Metal Co.) v. Toronto (City), [2004] O.M.B.D. No. 604, Ontario Municipal Board, 16 June 2004 paragraph 1. “… Because of the actions and inactions of Bernardo and the Bernardo Brothers and their disregard of a Board Order and the Board process, the Board finds that they have, by their conduct, “forfeited their day in court”.

10It was the City’s uncontroverted evidence that it is prejudiced due to the lack of proper disclosure of information regarding the Appeal. The City asserts that where the conduct of a Party results in prejudice the appeal should be dismissed.

11The Motion Record was served on the Appellant. The Appellant was granted a 21-day extension of the time within which it was required to file its response to the Motion.

12On July 20, 2022, the Appellant submitted a response to the Motion. In which the Appellant recited the reasons for the Appeal and acknowledged that during the period of May 27, 2013, to June 29, 2022, it took no steps to advance the Appeal.

13The Appellant states that it responded to all requests for information that were received. The Appellant did not mention or account for the unanswered letters from the Tribunal sent on January 14, 2020, and January 19, 2022.

14The Appellant asserts it did not abandon the Appeal. It attributes its inactivity to the failure of the City and the Tribunal to provide procedural direction regarding the Appeal.

15The Tribunal has determined that the facts of this case are a) the Appellant was inactive after filing the Appeal, and b) the Appellant failed to respond to multiple requests from the Tribunal for information.

16The Tribunal finds that in these circumstances the Appellant has forfeited its rights regarding the Appeal.

17The Tribunal finds that these circumstances meet the threshold for the dismissal of the Appeal stipulated in s. 19(1) of OLTA.

18UPON MOTION to this Tribunal by the City of Toronto for an Order dismissing the appeal under s. 19(1) of the Ontario Land Tribunal Act, and after the hearing of the Motion;

19THE TRIBUNAL ORDERS that the Motion is granted and the Appeal by Leopoldina Gomes is dismissed.

“M. Arpino”

M. ARPINO

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.