Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 21, 2023
CASE NO(S).: OLT-22-004366
PROCEEDING COMMENCED UNDER subsection 42(4.9) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Building Industry Land Development Association
Appellant: Dunpar Homes
Appellant: GWL Reality Advisors Inc
Appellant: Mississauga I GP Inc., Mississauga II GP Inc., Mississauga IIII GP Inc. and others
Subject: Parkland Conveyance By-law 0137-2022
Reference Number: By-law 0137-2022
Property Address: (City-wide)
Municipality/UT: Mississauga/Peel
OLT Case No: OLT-22-004366
OLT Lead Cse No.: OLT-22-004366
OLT Case Name: Dunpar Homes et al. v. Mississauga (City)
PROCEEDING COMMENCED UNDER subsection 10(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: City of Mississauga
Request for: Request for Directions
Heard: October 10, 2023, by video
APPEARANCES:
Parties Counsel
City of Mississauga R. Kehar M. Minkowski
Building and Land Development Association (“BILD”) R. Howe
Sheridan Retail Inc. o/a Dunpar Homes (“Sheridan” or “Dunpar”) L. Johnston (in absentia) M. Nemanic G. Mutlu
GWL Realty Advisors Inc. (“GWL”) A. Frank J. Park (in absentia)
Oxford Properties Group (“Oxford”) M. Laskin
DECISION DELIVERED BY BRYAN W. TUCKEY AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal convened the second Case Management Conference (“CMC”) for the above matter. A total of six appeals were originally filed against the decision of the City of Mississauga (“City”) to adopt the Parkland Conveyance By-law No. 0137-2022 (“By-law”).
2The By-law, passed on June 22, 2022, was made in keeping with the requirements of the City’s Council approved Parks Plan and pursuant to s. 42 of the Planning Act R.S.O. 1990, c. P.13 (“Act”). The City issued a Notice of the Passing of the By-law on July 07, 2022.
3The Tribunal has received a Notice of Withdrawal from Mississauga I GP Inc., Mississauga II GP Inc.; Mississauga III GP Inc. dated October 02, 2023 and from RGF (Mississauga) Developments Inc. dated August 28, 2023. Neither entity is represented at this CMC.
4Prior to the CMC the Tribunal received a Notice of Motion brought by the City. The Notice of Motion was received by the Tribunal on September 25, 2023.
5The City is seeking an Order striking certain issues, compelling certain entities to provide particulars in respect to the content of their issues and a request to schedule a third CMC and within the preceding to allow the City to bring a further Motion in respect to validity of certain remaining issues. The issues under question, and how they are dealt with, are described in some detail throughout this decision.
BACKGROUND
6Mr. Kehar, Counsel for the City advised the Tribunal that there have been positive discussions with most of the Appellants. He advised the Tribunal that the City has prepared a Comprehensive Issues List Chart dated September 25, 2023 (“Issues List”) which is found in Exhibit 1 Tab 1 A. All Parties agreed that this Issues List properly reflects the issues that are before this Tribunal. Therefore, this Tribunal will use the Issues List as an Issues roadmap for its decision. Any changes to the substance of the Issues on the Issues List are identified in the body of this Decision.
7Mr. Kehar noted that the Tribunal in its decision of June 14, 2023 Ordered that “all Parties provide their particularized Issues List to the City of Mississauga and all other Parties no later than 4:30 p.m. Wednesday, August 23, 2023.” The City had hoped that all submitted Issues would be acceptable and a Procedural Order (“PO”) could be presented at this CMC. Unfortunately, this did not happen and there are a number of Issues that are not acceptable to the City and require Tribunal adjudication.
8Mr. Kehar is pleased to advise the Tribunal that the City and all the remaining Appellants were able to address and resolve outstanding issues save and accept those of Sheridan Retail Inc. (“Sheridan”).
9Mr. Kehar also spoke to the Sheridan request for an adjournment of these proceedings. He advised the Tribunal that the City is prepared to proceed with the Motion relating to outstanding Issues as the matters are not overly complicated and all interested Parties have had ample opportunity to review the necessary material.
10Mr. Nemanic, Counsel for Sheridan noted that his client’s request for an adjournment was simply following the same process as the first CMC, and he is prepared to argue the Motion in this proceeding.
11Mr. Kehar is seeking a third CMC to be held in the spring of 2024 and a Telephone Conference Call (“TCC”) to be held early in 2024. Both these proceedings will be used to manage the matters before the Tribunal in an effort to and sure “the best opportunity for a fair, just, expeditious and cost effective resolutions of the merits of the proceedings.” All Parties consented to these requests. The Tribunal agrees.
12The Tribunal directed that a TCC be set for Thursday, January 25, 2024 at 9 a.m.
13The Tribunal directed that a third CMC be set for Friday, March 01, 2024 at 10 a.m.
STATUS OF ISSUES FOUND IN THE ISSUES LIST
14Mr. Kehar took considerable time to go through the Issues List to explain to the Tribunal and other Parties the status of each individual Issue:
a. Issues No. 1, 2, 4, 6, 7, and 12 are acceptable to the City and Parties who have submitted these Issues.
b. Issues No. 3, 5, 9, 14, and 17 are from entities that have withdrawn from these proceedings and therefore will not remain on the Issues List.
c. Issues No. 8 and 10, the Appellants have provided additional clarity in respect of their appeal. The City is satisfied that through adjudication of these Issues, that an exemption is not being requested.
d. Issue No. 11 has been withdrawn with the consent of the Appellant.
e. Issue No. 13 may be removed from the Issues List:
on consent of BILD and Oxford on the condition that such removal shall be without prejudice to Oxford and BILD’s ability to reintroduce that issue should the provisions of Bill 23 excluding Affordable and Attainable Units from the calculation of net residential units in applying the alternative rate come into force and effect prior to the Tribunal’s full and final disposition of the within appeals.
f. Issues No. 15 and 16 may be removed from the Issues List:
on consent of BILD, Oxford and GWL on the condition that should subsections 42(4.30) – 42(4.39) of the Planning Act, R.S.O. 1990, c. P.13, or a similar provision thereto, come into force and effect prior to the Tribunal’s full and final disposition of the within appeals, the removal is without prejudice to BILD, Oxford and/or GWL requesting said issues be placed back on the Issues List.
g. Issue No. 18 remains under dispute at this proceeding.
h. Issues No. 19 – 24 will be the subject of a Motion from the City at the March 1, 2024 CMC as they all represent “threshold issues” that should be properly adjudicated before getting into the evidentiary detail required at a Merits Hearing. Mr. Kehar advised the Tribunal and Sheridan that the City intends to bring forward a Motion to strike these issues.
15The Tribunal agrees with the status of the Issues List as described by Mr. Kehar and directs the Issues from all Parties that have withdrawn from this matter be removed from the Issues List.
TRIBUNAL FINDINGS WITH RESPECT TO UNCONTESTED CHANGES TO THE ISSUES LIST.
16The Tribunal concurs with the submissions of the City and makes the following findings with respect to the uncontested Issues found on the Issues List as follows:
a. Issues No. 8 and 10 are to remain in the Issues List as amended and clarified by the City and relevant parties.
b. Issue No. 11 is struck from the Issues List.
c. Issue No. 13 is removed from the Issues List on consent of BILD and Oxford subject to the following condition that will be Ordered later in this Decision:
that such removal shall be without prejudice to Oxford and BILD’s ability to reintroduce that issue should the provisions of Bill 23 excluding Affordable and Attainable Units from the calculation of net residential units in applying the alternative rate come into force and effect prior to the Tribunal’s full and final disposition of the within appeals.
d. Issues No. 15 and 16 are removed from the Issues List on consent of BILD, Oxford and GWL subject to the following condition that will be part of the Ordered later in this Decision.
that should subsections 42(4.30) – 42(4.39) of the Planning Act, R.S.O. 1990, c. P.13, or a similar provision thereto, come into force and effect prior to the Tribunal’s full and final disposition of the within appeals, the removal is without prejudice to BILD, Oxford and/or GWL requesting said issues be placed back on the Issues List.
17With these Tribunal findings, the only remaining outstanding matter for this CMC is the Motion of the City in respect of Issue No. 18 being an issue submitted by Sheridan.
18As the Hearing of the Motion remains contested, the Tribunal determined it is satisfied to proceed with the Hearing of the Motion at this CMC.
HEARING OF THE MOTION
19As a result of the efforts of both the City and Appellants to resolve issues, only Issue 18 of the Issues List requires adjudication at this motion hearing. Issue 18 reads: “Should the Parkland By-law be modified to allow a greater range of land, including non fee simple parkland, to be counted towards the quantum of the parkland required to be conveyed to the City as a condition of development or redevelopment, if additional lands are included in the City’s existing and forecasted supply of parkland?”
20The following documents are before the Tribunal in respect of this Motion:
a. No 1 – Motion Record of the City dated September 25, 2023.
b. No 2. – Book of Authorities of the City dated September 25, 2023.
c. No.3 – Reply Motion Record of the City dated October 06, 2024.
d. No. 4 – Motion Record of Sheridan dated October 04, 2024.
e. No. 5 – Book of Authorities of Sheridan dated October 04, 2023.
f. No. 6 – Supplementary Book of Authorities of Sheridan dated October 09, 2023
g. No 7 – Withdrawal letter from Mississauga I, II and III GP Inc. dated October 03, 2023.
h. No 8 – Withdrawal email from RFG (Mississauga) Developments Inc. dated August 28, 2023.
SUBMISSION OF THE CITY
21The content of the submissions of the City come from the Motion Record (Exhibit 1), the Reply Motion Record (Exhibit 3) and Mr. Kehar’s oral submissions. The Tribunal will use all of these sources in its characterization of the submissions.
22Mr. Kehar began his submissions by outlining the law related to the Tribunal’s power to strike issues with respect to the jurisdiction of the Tribunal to grant relief. He made reference to the source of the powers the Tribunal has “to control its own process”. The relevant clauses of s. 8 and 9 of the Ontario Land Tribunal Act (“OLTA”) are as follows:
8(1) The Tribunal has exclusive jurisdiction in respect of all matters in which jurisdiction is conferred on it by this or any other Act.
Same
(2) The Tribunal has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited by this or any other Act.
Relief
(4) Unless another Act specifies otherwise, the Tribunal may, as it considers to be appropriate,
(a) make an order granting all or part of the relief applied for; or
(b) make an order granting relief that is additional to or different from the relief applied for.
23The Tribunal is advised that s. 19(1)(d) of the OLTA and s. 4.6(1) of the Statutory Powers and Procedures Act allows the Tribunal to dismiss a proceeding without a hearing where the proceeding relates to matters that are outside the jurisdiction of the Tribunal. In this matter the Tribunal is not being asked to dismiss but simply to strike an Issue identified by Sheridan as it is not relevant for adjudication and should not be included in the proceedings PO because the Tribunal does not have the jurisdiction to provide the relief being sought.
24Mr. Kehar stated that the Tribunal:
stands in the shoes of the municipality only with respect to the spheres of jurisdiction conferred on it by the Planning Act. Conversely, the Tribunal is prohibited from doing what it has not been empowered to do. As such, the Tribunal’s power to act as the original decision maker could have acted does not confer on the Tribunal the power to interfere in specific circumstances where the legislature has limited its ability to do so… (Richmond Hill (Town) v. Elginbay Corporation, 2018 ONCA).
25Mr. Kehar further submits the Tribunal has no jurisdiction to add an exemption to the By-law as the Act places clear limitations on the Tribunal’s powers when hearing an appeal of the By-law when passed under s. 42. Salient limitations to jurisdictional powers are found in s. 42(4.15). He concluded by stating that the Tribunal is only permitted to amend, or order the Council to amend, the By-law with respect to the content as it relates to the alternative rate requirement.
26The Tribunal learned that s. 42(4.16) serves to prohibit the Tribunal from adding, removing, or reducing the scope of an exemption provided in the By-law. Therefore, any request for an exemption in the By-law whether directly or indirectly is beyond the jurisdiction of the Tribunal to grant. Relevant clauses of s. 42(4.16) are as follows:
(4.16) The Tribunal may not amend or order the amendment of a by-law so as to,
(b) add or remove, or reduce the scope of, an exemption provided in the by-law.
27Key in Mr. Kehar’s argument is that Sheridan seeks relief that has been contemplated by the Legislature but has not yet been brought into force under the Act. Salient yet to be proclaimed subsections of the Act are 42(4.30) to (4.39). Hence, Sheridan does not appear to be asking for an exemption, but instead for the premature implementation of a contemplated statutory change. Upon proclamation of these subsections, an owner of land proposed for development or redevelopment, subject to the acceptance by the municipality, may transfer non-traditional land conveyances to satisfy part or all of the municipal parkland dedication requirements.
28Subsection 42(4.31) states:
Land identified in accordance with subsection (4.30) may include,
(a) land that is,
(i) part of a parcel of land that abuts one or more other parcels of land on a horizontal plane,
(ii) subject to an easement or other restriction, or
(iii) encumbered by below grade infrastructure;
29These yet to be enacted subsections of the Act also establish a framework for agreements to be registered between the municipality and the landowner as well as a path for an appeal to the Tribunal should the municipality chose not to accept non-traditional lands proposed by the proponent. Subsections 42(4.30) to (4.39) are new legislative considerations in the Act and there is no indication as to when these permissions will come into force.
30Mr. Kehar submits that there is no legislative authority, therefore, it is either beyond the jurisdiction or premature for the Tribunal to deal with Sheridan’s Issue prior to the requisite legislative changes coming into force. He reiterated that the Tribunal is a creature of statute, and there is currently nothing in the Act that permits the Tribunal to authorize or require such non-traditional conveyances to satisfy parkland requirements that are not acceptable to a municipality “By adding provisions to the By-law that permit such non-traditional conveyances would be beyond the jurisdiction of both the municipality and the Tribunal to grant.”
31Mr. Kehar spoke to the evolving definition and content of Issue No. 18. First, he spoke to procedural fairness as all Appellants were previously directed by the Tribunal to provide “particularized Issues” to be included in the Issues List. It is procedurally unfair for an Appellant to continually change the content of an Issue during the course of the consideration of a Motion appropriately brought forward and lodged with the Tribunal. Despite this assertion, he provided submissions to both the restated Sheridan Issue No. 2A (Issue No. 18 on the Issues List), and the oral submissions made by Mr. Nemanic at this Motion Hearing.
32First Mr. Kehar spoke to the restated Issue No. 2A found in Exhibit 4 Tab 1 paragraph 21 being:
whether it is (sic) appropriate for the Parkland By-law to require an alternative rate of Parkland conveyance of 1 hectare per 300-dwelling units of land that must be free and clear of all legal and other encumbrances (unless otherwise agreed to by the Commissioner)? Should the Parkland By-law be amended to clarify that non-fee simple land will be accepted in satisfaction of an applicant’s alternative rate of Parkland conveyance in certain, prescribed circumstances that are consistent with the principles of good parks planning? (Tribunal emphasis)
33The Tribunal is advised by Mr. Kehar that such a change to Sheridan Issue No. 2A in no way changes the submissions of Mr. Kehar at these proceedings. Sheridan maintains the view that non-fee simple land will be accepted by the municipality under certain conditions. As previously stated, the Tribunal has no jurisdiction to mandate a municipality to accept non-traditional land conveyances. City Council has completed considerable policy review and has determined that such conveyances are not acceptable parkland in the vast majority of cases. Therefore, it was City Council’s decision to clearly state in the By-law by listing only those conveyances that are appropriate and acceptable to the City.
34Mr. Kehar is clear in his submissions that the Tribunal cannot set a mandatory framework for non-traditional land conveyance in the absence of s. 42(4.30) to 42(4.39) being in effect. His assertion of “the Tribunal’s inability to compel a municipality to accept the conveyance of any land has been confirmed by both the Divisional Court and this Tribunal”. Cases used to confirm this assertion are the Divisional Court decision Mattamy (Rouge) Ltd. v. Toronto (City), 2003 CanLII 7636 (ON SCDC) and the more recent Ontario Municipal Board (“OMB”) decision in CRAFT Acquisition Corporation v. Toronto (City), 2017 CanLII 76246 (ON LPAT). This OMB decision is particularly relevant as the member determined that the OMB “had no jurisdiction to require the City in that case to acquire lands zoned for parkland”.
35The absence of in force s. 42(4.30) to 42(4.39) of the Act, the City has no statutory authority to require applicants to enter into necessary agreements that address the shared responsibilities and relationships created by a non-traditional land conveyance. Such agreements create a complex network of rights, obligations and liabilities between the City and landowner. Without the framework established by s. 42(4.30) to 42(4.39), the Tribunal has no legal authority to compel municipalities to enter into these complex legal agreements.
36Mr. Kehar stated that without the framework created by s. 42(4.30) to 42(4.39) there is no statutory method to adjudicate the mandatory conveyance of non-traditional land, nor the necessary relationship created by such non-traditional land conveyance. Hence, “there is nothing the Tribunal can put into the City’s Parkland Conveyance By-law to compel non-traditional conveyance or otherwise create a mandatory framework that sets the parameters for how that convenience is to occur”.
37The Tribunal is advised that Sheridan in its Notice of Response to Motion (Exhibit 4 Tab 1 paragraphs 111 and 112) by way of its own admission, concedes that the Tribunal does not currently have the jurisdiction to require a municipality to accept non-traditional parkland conveyances. As a result, there is no question that the Tribunal is not allowed to amend the By-law to require the City to accept a non-traditional parkland conveyance.
38In concluding his submissions on this question, Mr. Kehar noted that should the Legislature of the Province of Ontario be of the opinion that the Act did have provisions to compel a municipality to take non-traditional conveyances for parkland purpose, or need to create a mandatory framework that sets the parameters for how such conveyances are to occur, the legislature would not be proposing to introduce those planning tools by way of s. 42(4.30) to 42(4.39).
39In the City’s Reply Motion Record, the City requests relief in respect of Sheridan’s Issue No. 18 in a similar fashion to other Appellants with similar questions. The City is requesting an order removing Issue No. 18 from the Issues List:
on the condition that should subsections 42(4.30) – 42(4.39) of the Planning Act, R.S.O. 1990, c. P.13, or a similar provision thereto, come into force and effect prior to the Tribunal’s full and final disposition of the within appeals, the removal is without prejudice to Sheridan requesting said issue be placed back on the Issues List.
40Mr. Kehar spoke to Sheridan’s oral submissions that had evolved into something different than those found in their Notice of Response to Motion. Put simply, Sheridan is asking that the Tribunal clarify the conditions where non-traditional land conveyances would be appropriate in the City.
41The Tribunal is directed to the By-law paragraph 5 (Exhibit 1 Tab D) which outlines the Condition of Land for Conveyance that the City is prepared to accept. These conditions represent the implementation of the City Council’s significant policy review, approval of the City’s Parks Plan and are constructed very carefully to reflect accurately Council’s wishes. Paragraph 5 of the By-law states:
The land required to be conveyed to the City for park purposes shall be in a location, configuration and condition satisfactory to the City and subject to the following conditions, unless otherwise agreed to by the Commissioner.
1The lands are free and clear of all legal and other encumbrances.
2Delivery to the City of a record of site condition that satisfies, at a minimum, a Phase I Environmental Site Assessment as meets the requirements of Ontario Regulation 153/04 pursuant to the Environmental Protection Act. The City reserves the right to require a Phase II Environmental Site Assessment be undertaken to further identify contaminants of concern following the Phase I assessment.
42Paragraph 6 of the By-law goes on to state situations where “the City may elect not to accept the conveyance of any land that is determined by the City to be unsuitable for park or recreational purposes…”
43Mr. Kehar submits that the By-law is clear in its construct, and further clarification by the Tribunal is both unnecessary and beyond its jurisdiction. City Council has carefully reviewed all options for parkland conveyances and the lands must be “free and clear of all legal and other encumbrances.” The By-law also delegates to the Commissioner the authority to review and recommend alternative parkland arrangements should she/he consider it appropriate. How other municipalities decide to construct their Parkland Conveyance By-laws are within their municipal authority but have little to no relevance in this matter. The City has made its policy decision which is accurately reflected in the By-law and needs no further clarification.
SUBMISSION OF SHERIDAN
44Sheridan in its Notice of Response to Motion (Exhibit 4 Tab 1), requested that the Tribunal Order an adjournment of the Motion brought by the City. This request is not pursued at these proceedings.
45“In the alternative, an order that the Tribunal has the jurisdiction under clause 42.(4.15)(b) of the Planning Act, R.S.O. 1990, c. P.13 to grant the relief requested in Issue 2A of Dunpar’s Issue List, and therefore the Issue should not be struck as requested in paragraph 2 of the City’s Motion.”
46Sheridan’s requested relief of the Tribunal evolved further in Mr. Nemanic’s oral submissions. This evolution is described in the following paragraphs of this Decision. The Tribunal makes use of both oral and written submissions. in its characterization of the submissions.
47Mr. Nemanic began his submission by outlining the three reasons he believes the Tribunal has the jurisdiction to address his client’s Issue being:
It is already a common happening that non-traditional lands are conveyed to a municipality for parkland purposes.
Many other municipalities have constructed their Parkland Conveyance By-laws in a fashion that have recognized non-traditional conveyances and have determined an appropriate procedure to ensure the municipality is properly protected through agreement. He made special note of the City of Vaughan and the Town of Newmarket.
By codifying similar parameters in the City’s By-law, it in no way requires or forces the municipality to accept lands that are not acceptable. The City has the discretion to take cash-in-lieu refuse the taking of any proposed lands.
48Mr. Nemanic submits the City already has the authority to include non-traditional lands in its By-law. therefore, it is well within the scope of the Tribunal’s jurisdiction to adjudicate whether it is appropriate for the City to accept or refuse such lands along with the establishment of a mechanism on how non-traditional land conveyances will be considered in the City’s parkland framework.
49Mr. Nemanic also submits that “subsections 42(4.13) to 42(4.15) of the Planning Act provides the Tribunal with the jurisdiction to adjudicate Dunpar’s appeal of the alternative rate of parkland dedication included in the By-law.
50The Tribunal is advised that Sheridan’s revised restatement of their Issue No. 2A (Issue No. 18 of the Issues List) quoted earlier in paragraph 31 of this Decision, serves, if adjudicated, to only clarify where the City may or may not be inclined to take non-traditional conveyances. By doing this, all Parties involved in the development or redevelopment of land within the City have the instruments necessary to clearly understand what is required of them should non-traditional conveniences be part of a development application. The Issue within the context written does not advocate for direction on when such conveyances may be acceptable, nor does it review the benefits or risks of the City accepting any non-traditional conveyance.
51Mr. Nemanic relied heavily on an Affidavit of Jonathan Hack (Exhibit 4 Tab 1 pages 28-58) a professional land use planner, to demonstrate the reasons why it is appropriate for the Tribunal to clarify the acceptance of non-traditional conveyances in this matter through adjudication.
52Mr. Hack’s Affidavit evidence is largely directed toward the use of Privately Owned Public Space commonly referred to as POPS which are outdoor spaces that are privately owned and maintained but accessible to the general public. He also made note of what is considered Encumbered Parkland which can take a more varied definition but essentially involves the City accepting ownership of parkland that is developed as a strata land ownership above built facilities. Examples of this would be parkland above underground parking garages.
53The Tribunal notes that in Mr. Hack’s Analysis of relevant City policy being Reimagining the Mall – Directions Report, has stated that “the City should consider Official Plan policies that establish under what conditions privately owned public spaces are appropriate, associated design requirements and the ability to use powers granted under the Planning Act to secure them.” There is no evidence to show that the City has made Official plan Policy changes to reflect this directions report.
54Much is made in Mr. Nemanic’s submission with respect to how other municipalities have chosen to establish policy related to parkland dedication. Mr. Hack in his affidavit, went into considerable detail evaluating a variety of municipal Parkland Conveyance By-laws. He made specific reference to the City of Vaughan and the Town of Newmarket to illustrate that other municipalities have seen it within their powers to articulate the dedication of non-traditional conveyances within the context of their Parkland Conveyance By-law. Mr. Hack concludes that “a parkland by-law which provides for a more principled consideration of the potential associated with POPS and Encumbered Parkland is better than one in which the flexibility of response by the City is lacking.”
55Mr. Nemanic stated that the evidence provided in Mr. Hack’s Affidavit demonstrates that a number of other municipal jurisdictions demonstrate that policies can be put in place to permit a municipality to consider the merits of including POPS and non-traditional conveyances as dedicated parkland. This of course is subject to a municipality’s decision to accept such conveyances.
56Mr. Nemanic made considerable reference to the not yet in force s. 42(4.30) to 42(4.39) of the Act. He submitted that the language of s. 42(31)(b) supports Sheridan’s assertion that POPS and Encumbered Parkland may be suitable as parkland dedication which states: an interest in land other than the fee, which interest is sufficient to allow the land to be used for park or other public recreational purposes. 2022. C. 21, Sched. 9, s. 12(15).
57Mr. Nemanic in his own words submits that s. 42(4.30) to 42(4.39):
create an exception to the general rule that a municipality may not be forced to accept land against its will by proposing to create a process which will allow an applicant and the Tribunal to force the City to accept a conveyance of fee simple or non-fee simple land with its consent, subject to the satisfaction of certain criteria (all of which is not yet known as of today's date).
58The Tribunal is advised that the Tribunal’s jurisdiction to grant Sheridan’s appeal, including its requested relief in Issue No. 2A comes from s. 42(4.15)(b) and (c) of the Act being:
b) order the council of the municipality to amend the by-law as it relates to a requirement under subsection (3) or (6.0.2) in accordance with the Tribunal’s order; and
c) amend the by-law as it relates to a requirement under subsection (3) or (6.0.1) in such manner as the Tribunal may determine.
59Mr. Nemanic noted the limitation on the powers of the Tribunal found in s. (4.16) which states:
The Tribunal may not amend or order the amendment of a by-law so as to,
(a) increase the amount of parkland that will be required to be conveyed or payment in lieu that will be required to be paid in any particular case;
(b) add or remove, or reduce the scope of, an exception provided in the by-law; or
(c) change the date, if any, the bylaw will expire.
60Mr. Nemanic asserts that s. 42(4.16) does not expressly state that the Tribunal could not amend the City By-law to provide an alternative rate of parkland conveyance that could include non-traditional land conveyances. It is not an appropriate requirement for the City to require that land must be free and clear of all legal and other encumbrances (unless otherwise agreed to by the Commissioner) as required by the By-law.
61Mr. Nemanic advised the Tribunal that it is appropriate for the Tribunal to amend the By-law to allow a greater range of land to satisfy its alternative rate of parkland dedication obligations under the By-law, an authority that the City has always had the power to do. Examples of a greater range of land conveyance options may include non- fee simple parkland, non-traditional conveyances, and POPS.
62In conclusion, Mr. Nemanic, maintained that Sheridan is not requesting an exemption but merely requesting clarity on the circumstances when POPS and non-fee simple land conveyances are acceptable to the City. Affidavit evidence has shown that many other municipalities have chosen to provide such clarity with the understanding that such conveyances are always at the discretion of the municipality. There is no advantage in waiting for s. 42(4.30) to 42(4.39) of the Act to come into full force and effect as municipalities clearly have this power should they choose to apply such policy in the construct of Parkland Conveyance By-laws. Similar clauses written into the By-law would ensure a clear, transparent, and more certain interpretation of the City’s parkland policy.
REPLY OF THE CITY
63Mr. Kehar in his reply to the submissions of Sheridan made the following points:
a. The further changes through oral submissions in respect to Issue No. 18 are at best inappropriate. The Tribunal in its previous decision of June 14, 2023 Ordered that “all Parties provide their particularized Issues List to the City of Mississauga and all other Parties no later than 4.30 p.m. Wednesday, August 23, 2023.” Issues were to be submitted in a complete and final form on the date directed by the Tribunal. It is procedurally unfair and inappropriate to make changes to issues during the conduct of a Motion Hearing. What is properly before the Tribunal is found in paragraph 21 Exhibit 4 of the Motion Record of Sheridan and quoted in paragraph 31 of this Decision. The revised Issue states that the “By-law be amended to clarify that non fee simple land will be accepted in satisfaction of an applicant's alternative rate of parkland conveyance in certain prescribed circumstances…” Now, Sheridan is requesting something different that the discretion presently found in the By-law be codified in a way that is not acceptable to the City.
b. The By-law is extremely clear in its definition of what the City is prepared to accept appropriate parkland conveyances. Therefore, no more definition or clarity is required. Further, the purpose of delegating the authority to the Commissioner to determine application by application the appropriateness of land to be conveyed to the City for park purposes is to allow the flexibility required by City staff to review and refine planning applications and make recommendations to Council on the best possible outcomes for both the City and applicant. The City does not want in any way fetter this flexibility by establishing a mandatory series of criteria.
c. City Council has completed an exhaustive and comprehensive review of its strategy related to parkland as demonstrated in the Parks Plan. Clearly, the City can make a policy decision that is different from other municipalities, and this is exactly what has been done in this By-law. Clarity is not at issue.
d. The Legislature has yet to bring into full force and effect s. 42(4.30) to 42(4.39). By the Tribunal relying on any way, shape, or form on these subsections is at best inappropriate. A proclamation of these subsections by the Legislature will spark a review of City policy and the By-law.
ANALYSIS AND FINDINGS
64The Tribunal finds that the City has extremely well-established planning policy in respect of requirements for parkland conveyances which are reflected in the By-law. To come to this conclusion, the City has followed a careful, complete, and comprehensive planning review that was completed over a number of months. This review was done in a very transparent and iterative manner that included many different stakeholders. The conclusions of this comprehensive review are articulated in the City’s By-law.
65With respect of the contested Motion, the Tribunal has been asked by the City to strike Issue No. 18 from the Issues List (Sheridan’s Issue No. 2A) because this Issue is outside the Tribunal’s jurisdiction to adjudicate. It is relatively common practice for the Tribunal to strike PO Issues to properly manage Merit Hearings and control its process. The Tribunal’s authority to strike or remove an Issue from a PO is found in the OLTA s. 8 and 9, as follows:
8 (1) The Tribunal has exclusive jurisdiction in respect of all matters in which jurisdiction is conferred on it by this or any other Act.
Same
(2) The Tribunal has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited by this or any other Act.
Orders
9 (1) The Tribunal has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred on the Tribunal under this or any other Act
66The Tribunal also has the authority under s. 9(4) of the OLTA to grant “relief that is additional to or different from the relief applied for.” This authority is particularly relevant in these proceedings as Sheridan’s request of the Tribunal has changed from its written request and subsequent oral submissions. Subsection 9(4) reads:
Unless another Act specifies otherwise, the Tribunal may, as it considers to be appropriate,
a. make an order granting all or part of the relief applied for; or
b. make an order granting relief that is additional to or different from the relief applied for
67In this matter, the Tribunal is asked in Sheridan’s Motion Record (Exhibit 4):
whether it is (sic) appropriate for the Parkland By-law to require an alternative rate of Parkland conveyance of 1 hectare per 300-dwelling units of land that must be free and clear of all legal and other encumbrances (unless otherwise agreed to by the Commissioner)? Should the Parkland By-law be amended to clarify that non-fee simple land will be accepted in satisfaction of an applicant’s alternative rate of Parkland conveyance in certain, prescribed circumstances that are consistent with the principles of good parks planning? (Tribunal emphasis)
68In his oral submissions Mr. Nemanic states that since the City already has the authority to include non-traditional lands in its By-law, it is well within the scope of the Tribunal’s authority to adjudicate whether it is appropriate for the City to accept or refuse such lands along with providing a mechanism for how non-traditional land conveyances will be considered in the City’s parkland framework. Sheridan is simply requesting clarification to ensure those in the development industry have clarity about when and under what conditions non-traditional lands could be conveyed.
69The Tribunal will first speak to jurisdiction.
70Subsection 42(4.16) of the Act is obvious in its intent:
(4.16) The Tribunal may not amend or order the amendment of a by-law so as to,
(b) add or remove, or reduce the scope of an exemption provided in the by-law:
71The Tribunal finds that Sheridan’s request has the effect of adding an exemption to the by-law. As the City noted the Merriam-Webster dictionary defines “exempt” as “free or release from some liability or requirement to which others are subject.” By adding to the By-law, a permission for non-traditional lands, Encumbered Lands or POPS as proper land conveyances to the City for parkland, the Tribunal would be in effect adding an exemption.
72The Tribunal finds that the Provincial Legislature has grappled with this Issue has made some yet-to-be in force subsections in the Act to address the concerns of Sheridan. The subsections are 42(4.30) to (4.39). Until these provisions come into full force and effect, the Tribunal has no authority to provide the relief that is contemplated by Sheridan. When these subsections are proclaimed by the Province, the legislative authority will be in placed for a proposed development or redevelopment, subject to acceptance by the municipality, to transfer non-traditional land to satisfy part or all of the municipal parkland dedication requirements. Adoption of these subsections also sets up a mechanism for the creation of necessary agreements between the municipality and the landowner, as well as an appeal process to be adjudicated by the Tribunal should the municipality chose to refuse to accept land identified by an applicant.
73The Tribunal is a creature of statute. Hence, it can only do what the legislature has empowered it to do through enacted various statutory provisions. The converse of this finding is that the Tribunal cannot do what it has not been empowered to do. This important legal consideration will change should s. 42(4.30) to (4.39) of the Act be proclaimed. Until that happens the Tribunal has no jurisdiction authority to amend the By-law by adding an exemption.
74The Tribunal finds that Sheridan’s written request to establish a mandatory non-traditional land conveyance provision as part of the By-law that requires the City to accept such lands until s. 42(4.30) to (4.39) has been proclaimed and in full force and effect. It has been well established by the Divisional Court that the Tribunal is unable to compel a municipality to accept the conveyance of any land. (Mattamy (Rouge) Ltd. v. Toronto (City), 2003 CanLII 7636 (ON SCDC) Divisional Court and Ontario Municipal Board decision CRAFT Acquisition Corporation v. Toronto (City), 2017 CanLII 76246 (ON LPAT)).
75In the absence of in force s. 42(4.30) to (4.39), the Tribunal lacks the statutory authority to require any applicant to enter into necessary agreements to address shared responsibilities and relationships necessary to ensure that non-traditional land conveyances are appropriately managed in the best interest of the municipality and future landowners.
76The Tribunal notes and agrees the condition suggested by the City on consent with BILD, Oxford and GWL to resolve their appeals speaks directly to, and concurs with, the Tribunal's finding with respect to jurisdiction. These three entities have agreed to remove similar Issues from the Issues Lists subject to a condition that should s. 42(4.30) to (4.39) “come into force and effect prior to the Tribunal’s full and final disposition of the within appeals, the removal is without prejudice to BILD, Oxford and/or GWL requesting said issues be placed back on the Issues List.” The Tribunal finds that Sheridan should be offered the same consideration.
77The Tribunal will now speak to the oral submissions of Sheridan advocating the need to clarify the By-law.
78The Tribunal notes that Sheridan by way of its own admission concedes in the Notice of Response to Motion that the Tribunal does not currently have the jurisdiction to require municipality to accept non-traditional parkland conveyances. Mr. Nemanic in his oral testimony recast Sheridan’s requested relief to simply providing clarification on paragraph 5 in the By-law by simply stating when, and under what conditions, the City would accept non-traditional, Encumbered Lands or POPS as appropriate parkland conveyances.
79The Tribunal finds that the By-law is very clear on lands the City is prepared to assume as public parkland. The City completed extensive policy study, analysis and evaluation and City Council made the policy decision that only lands that are not in any way encumbered are acceptable but have chosen to leave some flexibility within their parkland program by delegating the authority to the Commissioner to consider and in appropriate situations, recommend to Council alternative land takings. Paragraph 5 of the By-law reads:
The land required to be conveyed to the City for park purposes shall be in a location, configuration and condition satisfactory to the City and subject to the following conditions, unless otherwise agreed to by the Commissioner.
(1) The lands are free and clear of all legal and other encumbrances.
80The submissions of Mr. Nemanic, relied on the Affidavit of Mr. Hack, simply demonstrate that other Ontario municipalities have struggled with similar policy questions and choose different approaches to land they are prepared to accept as public parkland. These municipally appropriate parkland conveyances are implemented through their respective parkland by-laws.
81By Council delegating the authority to the Commissioner to explore and possibly recommend to Council, situations where non-traditional lands may be acceptable as land to be taken as parkland in the City, is a valid way to deal with the many different situations that may arise in a rapidly changing city like Mississauga. Each development application will be reviewed and evaluated comprehensively and the appropriate parkland takings on the planning merits of the proposed development and the needs of the community.
82The Tribunal finds that making such a clarification is tantamount to stepping into the purview of the obvious authority of the City to define what parkland is acceptable. By doing so the Tribunal would be in effect adding an exemption to the By-law which is clearly beyond the jurisdiction of this Tribunal.
83This view is reinforced by the Ontario Municipal Board decision Richmond Hill (Town) v. Elginbay Corporation, 2018 ONCA 72 paragraph 86 which states:
More generally, the Appellants’ argument on this point fails to recognize that as a creature of statute, the OMB stands in the shoes of the municipality only with respect to matters within the OMB’s on statutory jurisdiction. In other words, the Board’s power to act as the original decision maker could have acted does not confer on the OMB The power to interfere in specific circumstances where the legislature has limited its ability to do so.
84The Tribunal finds that it is beyond the Tribunal’s jurisdiction to grant the relief asked for by Sheridan either thorough Motion material or oral submissions. The Tribunal does not have the jurisdiction to add an exemption to the By-law, mandate the City to take lands not identified in the By-law or clarify how land will be taken when the subject land is not “free and clear of all legal and other encumbrances.”
85The Tribunal is prepared to grant the relief sought in the Motion brought by the City.
TELEPHONE CONFERENCE CALL AND CASE MANAGEMENT CONFERENCE TECHNICAL DETAILS
86A TCC will convene on Thursday, January 25, 2024 at 9 a.m. At this TCC, the Parties will finalize a schedule with respect to the submission of motion material to be heard at the March 01, 2023 CMC.
87Individual(s) are directed to call 416-212-8012 or Toll Free 1-866-633-0848 on the assigned date at the correct time. When prompted, enter the code 4779874 to be connected to the call. It is the responsibility of the person(s) participating in the call to ensure that they are properly connected to the call and at the correct time. Questions prior to the call may be directed to the Tribunal’s Case Coordinator having carriage of this case.
88A full-day CMC will convene on Friday, March 01, 2023 by video hearing at 10 a.m.
89Parties 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://global.gotomeeting.com/join/519389173
Access code: 519-389-173
90Parties and Participants 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
91Persons 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) 497-9373 or Toll Free 1-888-299-1889. The access code is 519-389-173.
92Individuals 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 CMC by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
CONCLUSION
93Issues No. 3, 5, 9, 14, and 17 are from entities that have withdrawn from these proceedings and will be removed from the Issues List.
94Issues No. 8 and 10 will remain on the Issues List as the Appellants have provided additional clarity in respect of their appeal.
95Issue No. 11 is removed from the Issues List with the consent of the Appellant.
96Issues No. 15 and 16 may be removed from the Issues List subject to the conditions found in the Decision’s Order.
97Issues No. 19 – 24 will be the subject of a Motion from the City at the CMC scheduled for March 01, 2024. The Motion will be initiated by the City in keeping with Rule 10 of the Ontario Land Tribunal Rules of Practice and Procedure.
98A TCC will be convened Thursday, January 25, 2024 at 9 a.m.
99A third CMC will be convened Friday, March 01, 2024 at 10 a.m.
100As described in detail in the Tribunal findings, the Tribunal does not have the jurisdiction to add an exemption to the By-law, mandate the City to take lands not identified in the By-law or clarify how land will be taken when the subject land is not “free and clear of all legal and other encumbrances.”
101Issue No. 18 is removed from the Issues List subject to the condition found in the Decision’s Order.
ORDER
102The Tribunal grants the relief sought by the Motion brought by the City of Mississauga subject to the following conditions.
a. THAT Issue No. 13 is removed from the Issues List on consent of the Building Industry and Land Development and Oxford Properties Group on the condition that such removal shall be without prejudice to Oxford Properties Group and the Building Industry and Land Development’s ability to reintroduce that Issue, should the provisions of Bill 23 excluding Affordable and Attainable Units from the calculation of net residential units in applying the alternative rate, come into force and effect prior to the Tribunal’s full and final disposition of the within appeals.
b. THAT Issues No 15 and 16 are removed from the Issues List on consent of the Building Industry and Land Development, Oxford Properties Group and GWL Realty Advisors Inc. on the condition that should subsections 42(4.30) – 42(4.39) of the Planning Act, R.S.O. 1990, c. P.13, or a similar provision thereto, come into force and effect prior to the Tribunal’s full and final disposition of the within appeals, the removal is without prejudice to the Building Industry and Land Development, Oxford Properties Group and/or GWL Realty Advisors Inc. requesting said Issues be placed back on the Issues List.
c. THAT Issue No 18 is removed from the Issues List, as raised by Sheridan Retail Inc. on the condition that should subsections 42(4.30) – 42(4.39) of the Planning Act, R.S.O. 1990, c. P.13, or a similar provision thereto, come into force and effect prior to the Tribunal’s full and final disposition of the within appeals, the removal is without prejudice to Sheridan requesting said Issue be placed back on the Issues List.
103A Telephone Conference Call is scheduled to commence at 9 a.m. on Thursday, January 25, 2024.
104A full-day Case Management Conference is scheduled to commence at 10 a.m. on Friday, March 01, 2024.
105The Tribunal Member may be spoken to if there are any issues with respect to the implementation of these directions.
106The Tribunal Member is not seized.
107The Tribunal so Orders.
“Bryan W. Tuckey”
BRYAN W. TUCKEY
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.