City Park (McLaughlin) Inc. v. Mississauga (City), 2023 CanLII 123751

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 27, 2023

CASE NO(S).: OLT-22-002160 (Formerly PL210033)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: City Park (McLaughlin) Inc.

Subject: Request to amend the Official Plan - Failure of the City of Mississauga to adopt the requested amendment

Description: To permit residential developments

Reference Number: OPA 20/014

Property Address/Description: 6616 McLaughlin Road

Municipality: City of Mississauga

OLT Case No.: OLT-22-002160 Legacy Case No.: PL210033

OLT Lead Case No,: OLT-22-002160 Legacy Lead Case No.: PL210033

OLT Case Name: City Park (McLaughlin) Inc. v. Mississauga (City)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: City Park (McLaughlin) Inc.

Subject: Application to amend Zoning By-law No. 0225-2007 - neglect of the City of Mississauga to make a decision

Description: To permit a six storey residential condominium and five detached residential lots

Reference Number: OZ 20/014

Property Address/Description: 6616 McLaughlin Road

Municipality: City of Mississauga

OLT Case No.: OLT-22-002162 Legacy Case No.: PL210034

OLT Lead Case No.: OLT-22-002160 Legacy Lead Case No.: PL210033

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: City Park (McLaughlin) Inc.

Subject: Proposed Plan of Subdivision - Failure of the City of Mississauga to make a decision

Description: To permit six storey residential condominium and five detached residential lots

Reference Number: T-M 20003 W11

Property Address/Description: 6616 McLaughlin Road

Municipality: City of Mississauga

OLT Case No.: OLT-22-002163 Legacy Case No.: PL210035

OLT Lead Case No.: OLT-22-002160 Legacy Lead Case No.: PL210033

PROCEEDING COMMENCED UNDER subsection 10(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Leo Longo – City Park (McLaughlin)

Request for: Request for Directions

Heard: Motion materials / submissions filed on the following dates: October 6, October 23 and October 25, 2023; and November 15, November 23 and November 27, 2023

APPEARANCES:

Parties	Counsel
City Park (McLaughlin) Inc. (“City Park”)	L. Longo
City of Mississauga (“Mississauga”)	L. Magi

DECISION OF WILLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL

Link to Order

PART 1: INTRODUCTION

(i) Materials Before the Tribunal

1The materials before the Tribunal on the Motion were:

(a) Motion Record of City Park, comprising 137 pages;

(b) Explanatory Note for Requested Revisions, comprising 2 pages;

(c) Brief of Authorities of City Park, comprising 64 pages;

(d) Responding Motion Record of Mississauga, comprising 177 pages;

(e) Brief of Authorities of Mississauga, comprising 291 pages;

(f) Reply of City Park to Response of Mississauga, comprising 12 pages;

(g) Supplementary Submissions of City Park on ‘Functus Officio’, comprising 17 pages;

(h) Submissions of Mississauga on ‘Functus Officio’, comprising 17 pages; and

(i) Reply Submissions of City Park on Functus Officio, comprising 11 pages.

(ii) The Unusual Nature of the Motion

2This matter concerns a “Motion for Directions” brought by City Park in writing on October 6, 2023, (“Motion”) concerning an Order of the Ontario Land Tribunal (“OLT” or “Tribunal”) dated July 25, 2022, which was requested on consent of both City Park and Mississauga (“July 25-22 Order”) pursuant to a settlement reached by the Parties much earlier in 2022.

3This Motion is unusual for many reasons, including the following:

(a) It was brought by City Park almost 15 months after the issuance of the July 25-22 Order which was a final Order in this proceeding;

(b) It seeks changes to the July 25-22 Order that City Park and Mississauga together requested – on consent – from the Tribunal, and therefore attempts to fundamentally alter the settlement presented to and approved by the Tribunal at the settlement hearing held by video hearing on March 24,2022 (“VH” or “March 24, 2022, Hearing”) which led to both the Interim Order issued April 14, 2022 (“April 14-22 Interim Order”) and the July 25-22 Order;

(c) Prior to the Motion, neither City Park nor Mississauga communicated any concerns to the Tribunal regarding the July 25-22 Order, let alone any allegation that the July 25-22 Order was ‘made in error’; ‘beyond the jurisdiction of the OLT to make’; was ‘incorrectly dated’; failed to accurately reflect the Parties’ settlement approved at the VH; or contravened any section of the Planning Act, R.S.O. 1990, c. P13 as amended (“Act”);

(d) No prior request has ever been made by City Park (or Mississauga) to seek review of the July 25-22 Order under Rule 25 of the Ontario Land Tribunal’s Rules of Practice & Procedure (“OLT Rules” or “Rules”), pursuant to section 23 of the Ontario Land Tribunal Act, S.O. 2021, c.4 Sched 6 (“OLTA”);

(e) Despite the above facts, City Park in this Motion maintains that the July 25-22 Order and its attached planning instrument contravene section 37.1 of the Planning Act and must now be substantially amended - even though City Park and Mississauga jointly requested the final July 25-22 Order and together prepared and approved the amended Zoning By-Law instrument (“ZBA”) attached to that Order; and

(f) Even though this entire proceeding was based on a consent settlement, the Motion brought by City Park has created complete disagreement: Mississauga adamantly rejects the contentions made and relief sought by City Park and seeks to uphold the settlement approved by the Tribunal at the March 24, 2022, Hearing.

(iii) The Parties Sought Approval from the OLT for an Agreed Settlement at the March 24, 2022, Hearing

4On August 6, 2020, City Park sought from the City of Mississauga (“City”) an amendment to the City’s Official Plan Amendment (“OPA”) and an amendment to Zoning By-law No. 0225-2007 in relation to a proposed development consisting of a six-storey residential condominium and five detached residential lots (“Development”) at the City Park property municipally known as 6616 McLaughlin Road, in the City (“Site”). The first Case Management Conference was held approximately three and one-half years ago on August 12, 2021.

5After lengthy negotiations, the Parties reached substantial agreement with respect to the form and content of a draft OPA and draft ZBA pertaining to the Development, along with certain conditions relating to a plan of subdivision agreement and other matters concerning the Site. These negotiations were finalized in early March, 2022, and culminated in a conditional approval granted by the City’s council on March 23, 2022, just one day prior to the VH convened by the Tribunal on March 24, 2022. The outcome was the April 14-22 Interim Order

6At the VH, counsel for both Parties – on consent - presented a single planning witness, Andrea Dear, to testify to the planning instruments and their compliance with the Act, the Provincial Policy Statement, 2020, the Growth Plan for the Greater Golden Horseshoe, 2019 and Amendment No. 1 (2020), the Region of Peel Official Plan and the City’s Official Plan. This is common practice in settlement hearings brought in accordance with Rule 12.1.

7Ms. Dear is a registered urban planner in Ontario and has over 17 years of professional experience. She is currently employed since May 2021 by the City as a Planner, Development and Design, and had carriage of the file pertaining to the Development at all material times. She was qualified to provide opinion evidence at the VH to the Tribunal on land use planning matters, on consent of both Parties’ counsel. She also provided a supporting affidavit on behalf of Mississauga in response to this Motion.

8At the VH, the Parties’ counsel also advised the Tribunal that they had reached substantial agreement on the form and content of a draft OPA and ZBA, subject to certain agreed conditions and the final revisions to the OPA and ZBA, to be approved by the City. Again, this is also common practice in settlement hearings before the Tribunal.

9In light of the extraordinary relief sought on this Motion, it is also notable that prior to the VH, counsel for City Park by correspondence dated March 11, 2022, had advised the Tribunal that his client was in complete agreement with the form and content of the OPA and ZBA which he and Mississauga’s counsel sought to present for approval of the Tribunal at the VH. In that correspondence, copied to counsel for Mississauga, he stated:

Further to my recent email, please be advised that on Monday evening the City’s Planning & Development Committee received a planning staff report recommending the approval of our client’s development applications for 6616 McLaughlin Road subject to the conditions set out in the report; [...] Council Committee adopted the staff report recommendations and forwarded their resolution to Council for formal approval. The next Council meeting at which the positive recommendation will be considered is set for March 23. It is anticipated that Council’s approval will be obtained that day.

I attach draft documents that reflect the staff report’s recommendations and Council Committee’s approval.

At next Tuesday’s hearing, Mr Walsh and I intend to:

• Update the presiding Member on the status of the developer/city settlement discussions;

• Provide an overview of the attached documents and the proposed development;

• Request a 9:00am TCC or VCC for a day immediately after the March 23 Council meeting at which we can jointly present uncontested planning opinion evidence in support of the settled documents and provide a draft Order for the Tribunal’s convenience.

Should you require anything further from myself or Mr. Walsh, please advise. Thank you for your attention in this matter and forwarding this material to the presiding OLT Member.

[above emphasis added]

10The “conditions” described by City Park’s counsel in his letter referenced in paragraph [9] included the following provision which was set out in the draft ZBA that he presented on consent at the VH:

… The Holding symbol H is to be removed from the whole or

any part of the lands zoned H-RA2-XX by further amendment to Map 44W of Schedule A contained in this By-law, as amended, upon satisfaction of the following requirements:

…The execution of a Section 37 (Community Benefits) Agreement to the satisfaction of the City… [“Section 37 Agreement Condition”]

[above emphasis added]

11Based on the unchallenged evidence of Ms. Dear - and pursuant to the unequivocally conveyed consent submissions of counsel for the Parties - the Tribunal was satisfied that the Parties’ proposed resolution of this proceeding met the requirements of the Act, was consistent with the Provincial Policy Statement, 2020, conformed with the Growth Plan for the Greater Golden Horseshoe, 2019 and also conformed to the applicable provisions of the Region of Peel Official Plan and the City’s Official Plan.

12Therefore, in the April 14-22 Interim Order, the Tribunal allowed City Park’s appeal in part and approved in principle the draft form and content of the OPA and the ZBA and the draft plan of subdivision. That approved ZBA included the Section 37 Agreement Condition. The April 14-22 Interim Order and Decision therefore constituted the Tribunal’s full consideration of the Parties’ proposed settlement in discharge of its duties and powers set out in OLTA and in the Act, pursuant to Rule 12.1 which states:

Procedure if Settlement Before Hearing Event The Tribunal may hold a hearing on the terms of a settlement if the parties in the proceeding agree to a settlement prior to a hearing event. The Tribunal may issue any directions to the parties necessary to ensure compliance with all statutory requirements, or to assist the Tribunal, prior to convening the settlement hearing. If all statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving the settlement, with any necessary amendments.

[above emphasis added]

PART 2: THE CONDUCT OF AND SUBMISSIONS MADE BY CITY PARK AT THE SETTLEMENT HEARING AND FOLLOWING THE APRIL 14-22 INTERIM ORDER ESTABLISH THAT CITY PARK EXPRESSLY AGREED TO MAKE SECTION 37 COMMUNITY BENEFITS PAYMENTS

13At the request of the Parties, the Tribunal withheld its Final Order in respect of the OPA, the ZBA and the draft plan of subdivision until such time as the Parties advised the OLT of the agreed final form and content of those instruments.

14Significantly, both Parties clearly represented to the Tribunal that their settlement included the Section 37 Agreement Condition and did not seek any qualification or limitation on that element of the Parties’ agreement. In addition, neither City Park or the City requested the Tribunal to issue the final Order by any date or ‘deadline’ or make any submission to the Tribunal concerning s. 37.1 of the Act or suggest that it could impact their settlement.

15It is also important to note that (other than the minor revision noted in paragraph [16] below) neither City Park nor the City commented on the April 14-22 Decision nor sought to review it pursuant to Rule 25 of the OLT Rules.

16Interestingly, counsel for both Parties did seek a minor correction in the April 14-22 Interim Order, which was described as follows in email correspondence from City Park’s counsel dated April 14, 2022, and then April 21, 2022:

[April 21, 2022] … I am writing to you with the consent of City Solicitor Graham Walsh.

We jointly request that the Tribunal make a correction to its recent decision in this matter. The requested correction and the reason for it are set out in the email string below.

If there is any concern in granting this joint request, please advise. Otherwise, we look forward to receiving a corrected decision at the Tribunal’s convenience. Thanks.

[April 14, 2022] I have just reviewed the OLT’s decision in this matter. I believe that the final paragraph needs to be revised.

I suggest it needs to be revised by deleting the final words in it as a final Order can be given to a draft plan […] after which the conditions are then to be met before the final plan approval is granted.

[10] The Tribunal shall withhold its final Order in respect of the OPA, the ZBA and the draft plan of subdivision until such time as the Parties advise the OLT of the agreed final form and content of those instruments.

Please confirm you concur and I will then contact the Tribunal and request the revision on consent. Thanks.…

[above emphasis added]

17Again, the communication described in paragraph [16] did not mention or seek to qualify the Section 37 Agreement Condition set out in the draft ZBA. Moreover, neither Party identified any date by which the Tribunal ought to issue the final Order contemplated by the April 14-22 Interim Order.

18The City advised the Tribunal on June 10, 2022, that the relevant instruments – including the ZBA with the Section 37 Agreement Condition - were in agreed final form and that all agreed conditions had been met and requested the Tribunal to issue a Final Order, which it obviously did on July 25, 2022. The ZBA approved in that Final Order now contained a slightly revised Section 37 Agreement Condition. Counsel for City Park in the Notice of Motion describes it this way:

That provision was revised and is set out in the July 25, 2022 OLT Order as follows:

The holding symbol H is to be removed from the whole or any part of the lands zoned H-RA2-60 by further amendment to Map 44W of Schedule B contained in Part 13 of this By-law, as amended, upon satisfaction of the following requirements:

(1) delivery of an executed agreement for the provision of certain facilities, services or matters, pursuant to section 37 of the Planning Act, as it read on the day before section 9 of Schedule 12 to the More Homes, More Choices Act, 2019 came into force, in a form and on terms satisfactory to the City of Mississauga ("City");..

[above emphasis added]

19As already noted above, nothing further was heard from either City Park or the City before or after the Tribunal’s Final Order which was made on July 25, 2022, until City Park commenced this motion by Notice of Motion dated October 6, 2023. Final briefing of all issues concerning this Motion was not completed until November 27, 2023. This was due in part to the Tribunal’s request for supplementary written submissions from the Parties.

20It is evident that what has actually happened here is that well more than one year subsequent to the July 25-22 Order City Park suddenly decided that it might be able to make an ingenuous argument that it does not have to pay to the City the community benefits charges it had already expressly agreed to – notwithstanding its express and implied representations made to and relied upon by both the City and the Tribunal at the March 24, 2022, settlement hearing and as reflected in both the April 14-22 Interim Order and the July 25-22 Order; and notwithstanding the very clear language set out in the ZBA as described above in paragraph [18].

21Based on the totality of the available evidence – including the presentations made at the March 24, 2022, Hearing seeking approval of the Parties’ settlement - the Tribunal must conclude that, at both the date of the April 14-22 Interim Order and the July 25-22 Order, the Parties fully contemplated and considered the elements in section 37.1 of the Act that are now the set-piece for this Motion.

22In light of the history of this matter leading up to the April 14-22 Interim Order and the July 25-22 Order – and as a matter of common sense - the Tribunal accepts and prefers the evidence of Ms. Dear on behalf of the City in its Response to the Motion over any contradictions to be gleaned from the Affidavit of Bruce McCall-Richmond in support of City Park’s Motion. The Tribunal concurs with the relevant arguments made by the City’s counsel as follows:

As described below and in Ms. Dear’s affidavit, the City submits that the record supports a finding that the parties intended, anticipated and/or expected the former density bonusing regime to apply to the property and that expectation is reflected in the final Zoning By-law. The record also supports a finding that at no time prior to or following submission of the Final Instruments to the Tribunal did the parties dispute or otherwise discuss the potential application of the CBC regime.

The City submits that the Applicant’s Motion seeks to exploit the inadvertent and unintended consequence arising from the Tribunal’s delayed issuance of the final Order with the effect of subverting the clear intention and understanding of the parties in finalizing the settlement and the Final Instruments. Further, the Applicant is improperly requesting the Tribunal modify the in-force Zoning By-law as a means of circumventing the prescribed process to seek Minor Variance approvals from the Committee of Adjustment in accordance with section 45 of the Planning Act.

[above emphasis added]

23In this Tribunal’s determination, it seems much more likely than not that City Park simply agreed to pay benefits under the ‘old scheme’ as part of the settlement brought before the Tribunal for approval because:

(a) It never objected to that outcome at the VH or even raised it as a potential concern;

(b) It presented the draft ZBA condition sent to the Tribunal and which became part of the April 14-22 Interim Order;

(c) It never objected to the June 10, 2022, consent submission and modified ZBA for the Final Order which had an explicit provision referencing the prior community benefits scheme; and

(d) It never objected to the July 25-22 Order for well over a year after it had been issued, until suddenly bringing this Motion.

PART 3: SETTLEMENT HEARINGS OUGHT NOT BE LIGHTLY DISTURBED

24Although this Tribunal has determined for the reasons stated in Part 4 below that it cannot conduct this review of its final July 25-22 Order as sought by this Motion, it must also emphatically state that there are sound reasons why an approved settlement sought on consent should not be re-opened in these circumstances.

25In a settlement proceeding brought under Rule 12.1, the OLT is entitled to expect full transparency and disclosure concerning all relevant elements of a settlement. Otherwise, it becomes impossible for OLT to meet its statutory duty to determine whether the proposed resolution meets the requisite requirements under the Act, including under provincial policies such as the Growth Plan for the Greater Golden Horseshoe and conforms with the provisions of applicable municipal official plans. Moreover, without full disclosure from the Parties to a proposed settlement the Tribunal is not able to determine if the resolution is fair, reasonable and constitutes good planning. In this case, at the March 24, 2022, Hearing, the Parties sought approval on this basis and called evidence and made submissions to support it.

26Since full disclosure at settlement hearings must be the rule, then a later allegation of ‘disagreement’ or ‘dispute’ must be seen as a failure to properly advise the Tribunal. A later dispute as to a material term should not be permitted because the OLT must be confident that Parties truly have reached a settlement and that all relevant terms have been fully and fairly presented to the Tribunal.

27In this case, City Park should not be allowed to initially claim that there was a binding final settlement at a hearing convened at its request for the Tribunal’s approval – only to then many months later suddenly claim that there was some additional key term underpinning that settlement about which it never advised the Tribunal. This is especially so when the assertion is that this ‘undisclosed crucial term’ now negates several aspects of the settlement for which approval was sought and obtained.

28It is this Tribunal’s view that it is not in the public interest and is also inconsistent with the mandate expressed in OLTA – to achieve “fair, just and expeditious resolution of the merits of the proceedings” - to reopen settlement hearings absent truly extraordinary circumstances involving, for example only, demonstrably false or fraudulent evidence. Otherwise, this could lead to duplicative, costly proceedings and potential abuse.

29Where the Parties have any doubts or concerns about certain aspects of a proposed settlement, then the simple remedy is to have those dealt with in a contested hearing where the relevant evidence in dispute can be tested. This permits all factual and legal issues to be properly assessed and adjudicated by the OLT. The whole rationale for a settlement hearing under Rule 12.1 is lost if Parties are free long after the hearing to raise alleged disputes.

30The circumstances of this Motion illustrate the absurdity that will result if one Party to an OLT settlement proceeding disputes or later changes its mind about the agreement reached. The responding material filed for this Motion by the City supports the Tribunal’s understanding that all essential provisions of the settlement were resolved before and during the joint presentation at the March 24, 2022, Hearing . The City supporting affidavit for this Motion was sworn by the same witness – Ms. Dear - who appeared on consent and unchallenged at that settlement proceeding. Yet, City Park on this Motion filed an affidavit from a new witness, Mr. McCall-Richmond, who did not participate at the VH.

31In his affidavit, Mr. McCall-Richmond disputes aspects of the facts, particularly on the issue of the S. 37 Agreement Condition and contradicts Ms. Dear. To add to the absurdity, he and Ms. Dear served as the Parties’ two respective planning professionals and were in constant contact throughout the entire development application and settlement process which, as noted in Part 1, went on for more than 3 years. If this Motion had been conducted as an oral event, the Tribunal would have been in the untenable position of requesting the Parties to proceed with the normal adversarial process: direct, cross-examination and re-direct – even though this entire situation stems from a consent settlement proceeding!

32Here, City Park apparently continues to maintain that it never ‘unconditionally’ agreed to the s. 37 Agreement Condition as part of its settlement with the City (a contention hotly denied by the City) – notwithstanding its clear communication to the Tribunal at the settlement hearing that the Parties had reached a comprehensive consent settlement confirmed by necessary implication from its correspondence to the Tribunal about the ZBA. Thus, it can be seen that what was unequivocally presented at the March 24, 2022, Hearing as a full and final settlement on all material terms has now been transformed by City Park into a contractual dispute between the Parties.

33Of course, this Tribunal has no mandate or authority to adjudicate contractual disputes between the Parties. It fully discharged its statutory duties in approving the settlement as requested by the Parties including the draft and final planning instruments. It is entitled to expect that the Parties had fully resolved all material matters when presenting planning instruments for its approval pursuant to a settlement described on consent as ‘final’. All terms and conditions in such instruments such as the ZBA must be deemed to have been accepted.

34It is the Tribunal’s view that the circumstances of this case should not warrant the reopening of a consent settlement proceeding. It is unnecessary for the Tribunal to devise a list of what possible future scenarios might justify such an unusual ruling.

PART 4: THE CITY PARK MOTION IS ACTUALLY AN UNTIMELY RULE 25 REVIEW REQUEST WHICH CANNOT BE GRANTED

35Sections 22, 23 and 24 of OLTA provide that:

Decisions final

22 Except as provided for in sections 23 and 24, orders and decisions of the Tribunal are final and binding.

Review

23 Unless another Act specifies otherwise, the Tribunal may review, rescind or vary any order or decision made by it in accordance with the rules.

Appeal

24 (1) Unless another Act specifies otherwise, an order or decision of the Tribunal may be appealed to the Divisional Court, with leave of that court on motion in accordance with subsection (3), but only on a question of law.

[above emphasis added]

36Rule 25 of the OLT Rules provides that:

“REVIEW OF A TRIBUNAL DECISION OR ORDER

25.1 Tribunal’s Powers on Review When exercising its powers pursuant to section 23 of the OLT Act, unless specifically excluded by legislation, Rules 25.2 to 25.11 shall govern.

25.2 Request for Review of Tribunal Decision The Chair shall consider a person’s request for a review of a decision, approval, or order if the person files the request in electronic format as directed by the Tribunal, with the information set out in Rule 25.3. The Chair may further direct that two hardcopies of the request be filed. A request for review does not stay the effect of the original decision, approval or order unless the Chair so orders.

25.3 Contents of a Request A party making a request for review shall file notice of such request with the Chair within 30 days of the date of the Tribunal’s written decision. Such notice shall include: […]

(d) the reasons for the request;

(e) the desired result of the review (such as a change or alteration to the decision or a rehearing of the proceeding);

(f) any documents that support the request, including copies of any new evidence that was unavailable at the hearing;

(g) an affidavit stating the facts relied upon in support of the request;

(h) a statement as to whether the requestor has or will submit an application for or judicial review or seek to appeal to the court

[all above emphasis added]

37City Park is well aware of the requirements of Rule 25 since its counsel cited this Rule at several points in its Motion materials to counter the proposition made by the City that this Tribunal is ‘functus officio’ in respect of its July 25-22 Order (an issue dealt with in Part 5 below).

38Read carefully, City Park’s Motion for Directions seeks the type of relief that can be made in a request for review under Rule 25:

1. A determination that the Tribunal did not have the jurisdiction to issue its Order of July 25, 2022 approving a Zoning By-Law with an “H” provision referencing a provision in the Planning Act no longer in effect.

2. A determination that the Tribunal cannot make an Order that contravenes and/or amends, in effect, s. 37.1 of the Planning Act.

3. An Order amending its Order of July 25, 2022 by deleting the following text from the Zoning By-Law attached to it: “as it read on the day before section 9 of Schedule 12 to the More Homes, More Choices Act, 2019 came into force”.

4. A determination whether the Tribunal retains and has the jurisdiction on this Motion to make minor revisions to certain other provisions of the Zoning By-Law attached to its July 25, 2022 Order.

5. An Order amending its Order of July 25, 2022 by making the minor revisions to the Zoning By-Law attached to it as set out in the Affidavit of Bruce McCall-Richmond, MCIP, RPP.

39However, the problem here is that City Park is well out of time to bring a Rule 25 request in respect of the July 25-22 Order. In this Tribunal’s view, City Park’s October 6, 2023, Motion seems framed to circumvent Rule 25 by now attempting to present a ‘new’ scenario involving a ‘jurisdictional question’ for the Tribunal’s consideration. Presumably, City Park thus seeks a ‘new’ Decision on that question with the objective of creating the basis for a fresh and timely Rule 25 request.

40In its response, the City’s counsel has similarly argued that City Park’s Motion is in effect a Rule 25 request and that it is untimely. City Park attempted to counter this argument by contending that somehow Rule 8 binds the Tribunal to ‘waive’ the time requirements in Rule 25. The Tribunal does not find that argument persuasive – in part because it presupposes that City Park’s ‘jurisdictional argument’ is correct. Oddly, City Park goes on to make reference to Rule 25.4(c) which can permit extensions of the 30-day time period, again relying on the same ‘jurisdictional argument’. That argument only serves to concede the point that City Park’s “Motion for Directions” is actually a Rule 25 review request.

41As a further aside, regarding the City Park argument that this Tribunal is duty bound to deal with the alleged jurisdictional question claimed in this Motion, the case of 2515496 Ontario Inc. V. Toronto (City) [2020], 9 OMTR 175 (LPAT) (“2515496”) does not assist the Tribunal. The Tribunal agrees with counsel for the City that in 2515496, the determination of jurisdiction was based on whether notice requirements were met under the Ontario Heritage Act and the Tribunal was determining its jurisdiction from the outset of an appeal, in the context of a live appeal. The Tribunal concurs with the City that this is a fundamentally different context than whether jurisdiction remains to substantively modify the terms of a final and binding decision, outside the legislated review timelines. In a similar vein, the case of Goldlist Properties Inc. v. Toronto (City), 2003 CanLII 50084 (ON CA), [2003] O.J. No. 3931 (CA) is also distinguishable since it makes no reference to the Tribunal’s powers to consider jurisdiction after it has issued a final decision.

42The Tribunal rejects the notion that there is anything ‘new’ or ‘changed’ about the circumstances underlying City Park’s Motion. The circumstances that existed at the time of the March 24, 2022, Hearing, the April 14-22 Interim Order and the July 25-22 Order are exactly the same as those now relied on by City Park. What City Park is attempting to do in its Motion is to have the Tribunal review or to, in effect, ‘appeal’ the July 25-22 Order and to further revise it.

43The Tribunal notes that City Park in its apparent attempt to recast its objectives on this Motion claimed in its written submissions that:

the central jurisdictional question raised by City Park as to whether the Tribunal had the authority to issue an Order approving of a zoning by-law with density bonusing provisions contrary to the Planning Act’s clear and strict transitional provisions set out in s. 37.1.

44In this Tribunal’s determination, the key jurisdictional issue raised by the Motion is that it improperly seeks to review and ‘appeal’ a final Decision and also to seek new revisions to the ZBA that are opposed by the City and were not part of the March 24, 2022, Hearing. This cannot be achieved by a ‘motion for directions’ because Rule 25 sets out a complete code governing such requests. In this Tribunal’s view, City Park cannot be permitted to bring a Rule 25 review request by way of this Motion filed almost 15 months following the July 25-22 Order – nor should it be permitted to avoid the timing requirements of Rule 25 by attempting to set up a future review request. Therefore, on this ground alone the Tribunal must dismiss City Park’s Motion.

PART 5: THERE IS NO NEED TO RULE ON THE FUNCTUS OFFICIO ISSUE

45The City, in its responding Motion materials, also argues that this Tribunal is ‘functus officio’ in respect of the July 25-22 Order – i.e. that it cannot revisit and amend that final Order. It relies on various jurisprudence from the Supreme Court of Canada and other courts, as set out in its voluminous Brief of Authorities. For its part, City Park disputes the applicability of such caselaw to the circumstances of this case and, inter alia, points to Rule 25 in support of its argument that the Tribunal can never be ‘functus officio’.

46The ‘functus officio’ argument is not often made to the OLT and, in the Tribunal’s view, is not an argument that must be resolved in order for the Tribunal to make a determination on this Motion. As noted by the Supreme Court of Canada in an excerpt from Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3:

A closer examination of the doctrine is helpful. The Oxford Companion to Law (1980), at p. 508, provides the following definition:

Functus officio (having performed his function). Used of an agent who has performed his task and exhausted his authority and of an arbitrator or judge to whom further resort is incompetent, his function being exhausted.

But how can we know when a judge's function is exhausted? Sopinka J., writing for the majority in Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at p. 860, described the purpose and origin of the doctrine in the following words:

The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division.

It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal (see also Reekie v. Messervey, 1990 CanLII 158 (SCC), [1990] 1 S.C.R. 219, at pp. 222-23). This makes sense: if a court could continually hear applications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launch an appeal.

47City Park’s counsel argues that the ‘functus officio’ doctrine is inapplicable to this proceeding and points to the existence of section 23 of OLTA and Rule 25 as support for his argument that “…the Tribunal is not functus officio and has the jurisdiction to consider the Motion for Directions and grant the relief requested therein”. Interestingly, in final Reply submissions he also contended that: “The City’s interpretation of the case law and its position that the Tribunal is functus officio is inconsistent with the City’s own request for relief”. On this latter point, the Tribunal actually agrees with counsel for City Park and is of the view that no changes to the July 25-22 Order can be made on this Motion.

48If ever the Tribunal was to render a determination that it had become ‘functus officio’ following one of its Decisions/Orders, this case might be one in which to do so. However, the Tribunal declines to make this ruling because such a determination is not required to dispose of this Motion. In this Tribunal’s view, it is unnecessary and undesirable for the OLT to make broad rulings on matters of legal doctrine when such rulings are not required in order to adjudicate the issues before it. Such expansive rulings are more appropriately considered by the Divisional Court of the Ontario Superior Court and the Ontario Court of Appeal – on the other hand, the Tribunal does agree that it is empowered to determine matters relating to its own jurisdiction – a point that is not in dispute here.

49Therefore, this Tribunal declines to rule as to whether it became ‘functus officio’ as a result of either the April 14-22 Interim Order (its substantive ruling approving the Parties’ settlement) or the final July 25-22 Order. However, by so doing, this Tribunal is not making a determination that it cannot make such rulings in future relevant proceedings.

PART 6: IT IS UNNECESSARY FOR THE TRIBUNAL TO MAKE A ‘NUNC PRO TUNC’ REVISION TO THE DATE OF THE JULY 25-22 ORDER

50In this Tribunal’s view, the Motion by City Park presents a false dichotomy that the City perhaps felt it was obliged to accede to.

51Essentially, the Motion and the Response to it by the City suggests that this Tribunal must either: (a) determine that its July 25-22 Order was improperly made without jurisdiction; or (b) implement a revision of the date of the July 25-22 Order.

52In fact, the Parties have not presented any jurisprudence to the Tribunal to establish that the Tribunal is bound on this Motion to grant either of those remedies or measures summarized above or set out in the Parties’ motion materials. Neither Party cited any specific caselaw authority to support the argument that the Tribunal must in any way amend its July 25-22 Order. In any event, as set out in Part 4 above, the Tribunal has determined that it has no jurisdiction to entertain this Motion because it is a disguised attempt to seek review under Rule 25. In these circumstances, the Tribunal declines to consider whether it should or can amend the date of the July 25-22 Order.

PART 6: SUMMARY OF CONCLUSIONS

53For clarity, the Tribunal summarizes its conclusions as follows:

(a) The relief sought in the Motion for Directions by City Park constitutes a request for review under Rule 25 of the OLT Rules and should have been commenced accordingly within 30 days of the July 25-22 Order. The Motion for Directions is not a proper Rule 25 request and this Tribunal has no jurisdiction to consider it and it must be dismissed;

(b) Even if the Motion for Directions was construed to be a proper Rule 25 request for review (which it is not) – or the Tribunal had exercised its discretion to so consider it to be (which it does not) - it is well out of time under the express provisions of Rule 25.3 and ought to be dismissed for that reason;

(c) This Tribunal has determined that the Motion for Directions fundamentally distorts the process mandated by OLTA and the procedures set out in the OLT Rules pertaining to settlement approvals. The settlement approval sought on consent by the Parties on March 24, 2022, and implemented by the April 14-22 Interim Order and the July 25-22 Order should not be reopened or reviewed;

(d) It is unnecessary for this Tribunal to determine whether it was ‘functus officio’ in respect of either the April 14-22 Interim Order or July 25-22 Order and therefore this Tribunal declines to do so in this proceeding; and

(e) It is also unnecessary for this Tribunal to determine whether it ought to amend the date of the July 25-22 Order, under the ‘nunc pro tunc’ doctrine or otherwise, and therefore this Tribunal declines to do so in this proceeding.

ORDER

54THE TRIBUNAL ORDERS THAT the Motion for Directions by City Park is dismissed.

“William R. Middleton”

WILLIAM R. MIDDLETON

vice chair

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.