Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 03, 2023

CASE NO(S).: OLT-22-002069

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

Appellant: Julie Daly Applicant: NYX Tannery Ltd. Subject: Proposed Official Plan Amendment Description: to permit Residential development Reference Number: OPA 133 Property Address: 51, 57 Tannery Street and 208 Emby Drive Municipality/UT: Mississauga/Peel OLT Case No: OLT-22-002069 OLT Lead Case No: OLT-22-002069 OLT Case Name: Daly v. Mississauga (City)

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

Appellant: Julie Daly Applicant: NYX Tannery Ltd. Subject: Zoning By-law Description: to permit Residential development Reference Number: ZBA 0259-2021 Property Address: 51, 57 Tannery Street and 208 Emby Drive Municipality/UT: Mississauga/Peel OLT Case No: OLT-22-002070 OLT Lead Case No: OLT-22-002069

PROCEEDING COMMENCED UNDER section 17(45) and section 34(25) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Motion By: NYX Tannery Ltd. Purpose of Motion: Request for an Order Dismissing the Appeal Heard: By written hearing

APPEARANCES:

Parties	Counsel/Representative*
NYX Tannery Ltd.	Mary L. Flynn-Guglietti* and Kailey Sutton*
Julie Daly	Self-represented
City of Mississauga	Lia Magi*

DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1NYX Tannery Ltd. (“Applicant”) seeks to construct townhouses on the lands located at 51 and 57 Tannery Street and 208 Emby Drive (“subject properties”). ·

2On December 8, 2021, the City of Mississauga (“City”) adopted Official Plan Amendment No. 133 (“proposed Official Plan Amendment”) and passed Zoning By-law Amendment No. 259-2021 (“proposed Zoning By-law Amendment”), which would facilitate the Applicant’s proposed development. The proposed Zoning By-law amends the City’s Zoning By-law No. 0225-2007 (“City’s Comprehensive Zoning By-law”).

3On January 5, 2022, Julie Daly (“Appellant”) appealed the City’s decisions.

4The subject properties are presently designated “Residential High Density” and “Greenlands” under the City’s Official Plan. The current Residential High Density designation permits apartment dwellings and townhouse dwellings accessory to apartment dwellings. The proposed Official Plan Amendment provides site-specific policies permitting townhouse dwellings that are not accessory to an apartment dwelling on the subject properties.

5The subject properties are presently zoned as “Gl (Greenlands - Natural Hazards)” and “D (Development)”. The proposed Zoning By-law Amendment would change the zoning to “G l (Greenlands - Natural Hazards)”, “H-RM5-59 (Street Townhouses - Exception with a Holding Provision)” and “H-RM9-4 (Back to Back and Stacked Townhouses - Exception with a Holding Provision)”.

6In 2019, the Applicant applied for and was granted draft Plan of Subdivision approval regarding the subject properties contingent on the approval of the proposed Official Plan and Zoning By-law Amendments. The draft Plan of Subdivision approval has not been appealed.

7The properties located at 57 Tannery Street and 208 Emby Drive presently are vacant lands. Dwellings on those properties were demolished in 2019. The property located at 51 Tannery Street has a dwelling with rental units located on it.

8On June 13, 2022, the Applicant filed a motion to dismiss the Appellant’s appeals without a hearing. The Applicant argues that the Appellant’s Appeal Form does not disclose any apparent land use planning ground upon which the appeals could be successful, the appeals are frivolous, vexatious or commenced in bad faith, they were made only for the purpose of delay, and they relate to matters that are outside the jurisdiction of the Tribunal. The Applicant also seeks its costs.

9The motion was heard in writing.

10For the reasons that follow, the Tribunal orders that the motion is granted and the Appellant’s appeals are dismissed. If a Party wishes to request costs, a separate written request for costs may be made in accordance with Rule 23 of the Tribunal’s Rules of Practice and Procedure (“Tribunal’s Rules”).

ADJOURNMENT REQUEST

Submissions

11In her response to the motion to dismiss, the Appellant filed a request for an adjournment. Her bases for the request are that the motion to dismiss is premature and she needs further time to respond. She submits that there are associated proceedings before other adjudicative tribunals and the courts that must be concluded before the present proceedings can be fairly heard. She also submits that she has a medical condition that necessitates that she have sufficient time to respond without jeopardizing her health. She submits that the length of the adjournment should allow for healing time and accommodation. She proposes that the proceedings be adjourned until roughly 60 days after the other associated proceedings are concluded.

12The Applicant and the City oppose the adjournment request. Regarding whether the motion to dismiss is premature, the Applicant submits that there is no basis for the Appellant’s assertion that the associated proceedings may determine the outcome of the present proceedings. It submits that the Tribunal has exclusive jurisdiction to adjudicate the appeals that are before it and its decision is not contingent on the outcome of proceedings before other tribunals. It also submits that many of the proceedings referenced by the Appellant do not involve the Applicant or the subject property, are not relevant, or have already been concluded.

13Regarding the Appellant’s request for time for accommodations, the Applicant submits that the motion to dismiss was filed in June 2022 and the responding dates were postponed three months accommodating the Appellant with sufficient time to respond. It submits that the motion to dismiss was initially scheduled to commence on July 12, 2022 by video hearing. At the request of the Appellant, the hearing was adjourned to September 14, 2022. On August 25, 2022, it was further delayed and converted into a written motion with final materials to be filed by September 30, 2022. The Applicant acknowledges that, at its request, the September date was extended to October 4, 2022.

Analysis and Findings

14Rule 17.4 of the Tribunal’s Rules states that the Tribunal will only grant last minute adjournments for unavoidable emergencies, such as illnesses so close to the hearing date that another representative cannot be obtained. The Appellant’s request was made in her responding submissions and constitutes a last minute adjournment request. She does not identify an unavoidable emergency and the Tribunal notes that the motion return date has already been postponed to accommodate the Parties. To adjourn the motion to an indefinite date contingent on the conclusion of other proceedings would result in an inefficient and uncertain process. Under Rule 17.5(f) of the Tribunal’s Rules, the Tribunal should only grant an indefinite adjournment where it finds that there would be no substantial prejudice to the Parties or to the Tribunal’s schedule and the Tribunal concludes that the request is reasonable for the determination of the issues in dispute. In the present case, the Appellant has not demonstrated how a further delay would address her concerns or be a fair way forward. Moreover, the Appellant has failed to demonstrate that an indefinite adjournment would be reasonable for the determination of the issues in dispute.

15The Tribunal denies the Appellant’s adjournment request.

ISSUES

16The key issues to be addressed by the Tribunal in the present care are:

a. does the Appellant’s Appeal Form explain how the proposed instruments are inconsistent with the Provincial Policy Statement, 2020 (“PPS”) as required under s. 17(45)(3) and 34(19.0.1) of the Planning Act?

b. Do the Appeal Form and accompanying materials disclose any apparent land use planning ground upon which the appeals could be successful (s. s. 17(45)(1) and 34(25) of the Planning Act)?

THE APPEAL

17In her Appeal Form, the Appellant sets out the following reasons for the appeals:

• the decision of the council of the City of Mississauga, does not conform with the provincial plan in effect on the date of the decision and is in conflict. In particular: (letter dated January 5, 2022 attached); and
• PPS: Statement 4.4: This Provincial Policy Statement shall be implemented in a manner that is consistent with the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. The City's processes have been discriminatory in effect and have adverse impact on the applicant, who is protected by the Human Rights Code. The applicant also alleges that the City may have breached her Charter rights. Additional amendments of these reasons may be required as well as completion of outstanding concurrent legal proceedings that have a bearing on this matter.

18In her letter, dated January 5, 2022, which is attached to her Appeal Form, the Appellant includes the following additional reasons:

• timing of the passing of the by-law, having a discriminatory effect/impact on me - due to concurrent human rights issues that the City is aware of but remain unremedied;
• arbitrariness;
• the Official Plan Amendment, does not acknowledge the Human Rights Code and excludes me from the community, linked to protected Code grounds and has an ongoing adverse effect/impact on me as do all related City processes; and,
• an alleged illegal change of use at 51 Tannery St. has not yet been determined. The OPA was passed on the premise of "existing legal use" of 51 Tannery, Tannery house, challenged via proceedings SC-19-3051-00 and other related proceedings.

19With her Appeal Form, the Appellant attached written submissions that she sent to City Council between March 2019 and October 2021. In written comments to the City, dated March 16, 2019, she raised concerns regarding:

• the City’s Rental Housing Protection By-law;
• the need to preserve rental stock and prevent the demolition of rental housing;
• the need to require developers to replace demolished rental stock;
• rising rental rates;
• the continuing reduction of affordable housing;
• increased gentrification; and,
• the need for more affordable housing.

20In submissions to City Council on September 3, 2019, she set out concerns related to:

• the City’s Rental Housing Protection by-law;
• the Human Rights Code;
• the City’s Demolition Control By-law;
• the Residential Tenancies Act;
• the Building Code;
• health and safety violations; and,
• inconsistencies with the Human Rights Code that are contrary to the PPS.

21In written submissions made to City Council on October 25, 2021, the Appellant provided comments in relation to the PPS, including:

• The proposed development plan and processes have not been consistent thus far with or interpreted in accordance with human rights or human rights laws;
• The plan/design and implementation of development thus far, has not sought to improve accessibility for persons with disabilities by identifying, preventing and removing land use barriers which restrict full participation in society;
• The Tenant has endured ongoing barriers and refusals to identify, prevent and remove those barriers which continues to restrict her full participation in society (as described in these written comments, not limited);
• The plan has not accommodated an appropriate range and mix of residential (including second units, affordable housing) and only includes housing that excludes the Tenant and others who may (or may not) be protected by Code grounds for a protected social area(s), but appears to cater to a narrow demographic of people. The development focus appears to be profit over people;
• The plan has not established or implemented minimum targets for the provision of housing which is affordable to low and moderate income households, such as the Tenant and other residential renters.
• All forms of housing required to meet the social, health and well-being requirements of current and future residents, including special needs requirements;
• The provincial goal of enhancing the quality of life for all Ontarians, which is why the Tenant came to Tannery house has not been met via the new development;
• The protection of public health and safety thus far for those at 51 Tannery (health and safety are to be given a broad definition and also include psychological safety). Enhanced human health and social well-being have not been promoted;
• The concept/principle of strong communities, a clean and healthy environment and economic growth, for the long term. The Tenant came to the Tannery house to also recover economically and recover strength but the opposite occurred;
• The relevant policies which are to be applied to each situation, representing minimum standards, but appears to have been ignored/bypassed;
• The long-term prosperity and social well-being of Ontario depends upon planning for strong, sustainable and resilient communities for people of all ages, a clean and healthy environment, and a strong and competitive economy - but should not exclude and marginalize those who rent;
• Diminished importance of consulting with people and communities on planning matters that may affect their rights and interests, voices of residential tenants, especially those from single parent households. It does not appear consulting the public has much importance for these applications and is only a formality;
• Have not necessarily encouraged a sense of place, by preserving well-designed built form and cultural planning, and by conserving features that help define character, including built heritage resources and cultural heritage landscapes.

22In her comments to City Council on October 25, 2021, she also raised concerns focusing on:

• Ontario Human Rights Code issues;
• implementation of the City’s Rental Housing Protection By-law;
• concerns with low vacancy rates;
• the need to preserve affordable rental housing;
• the housing crisis;
• the importance of the existing building located at 51 Tannery Street;
• discriminatory zoning policies;
• the loss of rental units.

EVIDENCE AND SUBMISSIONS

Evidence and Submissions of the Applicant

23In support of the motion to dismiss, the Applicant filed an affidavit sworn by Ryan Guetter, dated June 13, 2022. Mr. Guetter is a land use planner retained by the Applicant. Based on his curriculum vitae and his background and qualifications, as set out in his affidavit, the Tribunal qualifies him to provide opinion evidence in the area of land use planning.

24The Applicant also filed an affidavit sworn by Glenn Grenier. He is a lawyer with the law firm representing the Applicant. His evidence reviews the Appellant’s associated proceedings and discusses her conduct.

25The Applicant argues that the Appellant’s Appeal Form is not properly filled out and contains factual errors. It states that the Appeal Form asserts that the proposed instruments do not conform to a provincial plan, but does not identify the plan in question. Although it refers to PPS policy 4.4 and states that the PPS must be implemented in a manner that is consistent with the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms, the Applicant submits that the Appeal Form does not explain how the proposed instruments are inconsistent. It submits that the Appeal Form alleges that the City's processes have been discriminatory and the City has breached the Appellant’s rights under the Canadian Charter of Rights and Freedoms, but it does not explain how. The Applicant submits that such explanations must be set out in the Appeal Form as required under s. 17(45)(3) and 34(19.0.1) of the Planning Act. On this point, the Applicant submits that the Appellant admits in her responding materials that she is unable to express how the proposed instruments are inconsistent; but that she plans to do so at a later time.

26The Applicant also argues the Appellant has failed to provide reasons for the appeals that are based on any apparent land use planning grounds and the appeals have no prospect of success. It submits that the Appeal Form sets out allegations based on concerns and apprehensions, focuses on grounds that are beyond the Tribunal’s authority to adjudicate, and does not contain proper grounds for appeal. The Applicant submits that the Appellant sets out additional reasons for the appeals in a letter accompanying the Appeal Form. These reasons include: human rights issues associated with the timing of the passage of the proposed Zoning By-law Amendment; arbitrariness; exclusionary aspects of the proposed Official Plan Amendment that affect her human rights; and the need for the resolution of associated proceedings before the proposed instruments can be adjudicated. The Applicant submits that the public processes leading up to the adoption of the proposed Official Plan Amendment and passage of the proposed Zoning By-law Amendment included a community meeting and two statutory public meetings, which exceed the requirements in the Planning Act. It submits that it complied with the applicable statutory requirements and there are no human rights issues associated with the timing of the passage of the proposed Zoning By-law Amendment. It submits that the process was not contrary to the Ontario Human Rights Code. It submits that the Appellant’s ground of “arbitrariness” is without context or explanation and is not a proper land use planning ground. It submits that the proposed instruments do not require physical changes to the subject properties or their occupancy, but provide approval for specific types of future development, subject to the satisfaction of all statutory, regulatory and policy requirements. It submits that as the proposed Official Plan Amendment does not require physical changes to the subject properties or their occupancy, it cannot possibly infringe human rights. The Applicant also argues that the resolution of associated proceedings is not a necessary pre-condition for approval of the proposed instruments. The Applicant submits that the Appellant’s reasons for appeal solely constitute allegations, apprehensions and preferences regarding general public policies. It submits that they are not linked to land use planning grounds.

27In relation to the Appellant’s comments to the City, dated March 16, 2019, the Applicant submits that they also do not constitute proper planning grounds. It submits that they focus on the City’s Rental Housing Protection By-law; the preservation of rental housing; the replacement of demolished rental housing stock; rising rental rates; affordable housing; and gentrification. The Applicant submits that these concerns relate to the Appellant’s belief in the need for changes to City policy. It submits that they do not directly relate to the merits of the proposed Official Plan Amendment or the proposed Zoning By-law Amendment.

28Regarding the Appellant’s submissions to City Council on September 3, 2019, the Applicant submits that they allege health and safety violations and inconsistencies with the Ontario Human Rights Code, which the Appellant asserts are contrary to the PPS. In response, the Applicant submits that these comments are not proper reasons for appeal as the proposed instruments solely provide for permissions and do not physically change the subject properties or their occupancy. It submits that permission for the demolition and construction of buildings and eviction of tenants are not land use planning matters governed by the Planning Act. It submits that the public processes under the Planning Act that led to the adoption of the proposed instruments did not exclude individuals from participating or physically change the subject properties in any way.

29The Applicant submits that the Appellant’s written comments to City Council, dated October 25, 2021, are not proper land use planning grounds for an appeal. It submits that the comments focus on Ontario Human Rights Code issues; implementation of the City’s Rental Housing Protection By-law; vacancy rates; the preservation of affordable rental housing; the housing crisis; the importance of the building at 51 Tannery Street; discriminatory zoning policies; and the loss of rental units. The Applicant submits that these matters focus on the prevention of the demolition of rental housing and the eviction of tenants and are not proper land use planning grounds for a site-specific appeal under the Planning Act. The Applicant submits that the Appellant also raised concerns in her October 25, 2021 comments regarding: when and how the Applicant’s applications were deemed complete; misleading information in public notices; the Chief Building Inspector’s review of the Applicant’s applications; and the conduct of the City and the Applicant toward the Appellant. The Applicant submits that these concerns represent bare statements and do not constitute proper land use planning grounds for an appeal.

30The Applicant submits that the Appellant’s October 25, 2021 comments also allege that the proposed instruments are inconsistent with the PPS’s policies on: improving accessibility for person with disabilities; barriers excluding public engagement; providing an inclusionary range and mix of residential housing; affordable housing targets; the need for all forms of housing; enhancing quality of life; promoting enhanced human health and social well-being; strong communities and a clean and health environment and economic growth; application of relevant policies; long-term prosperity and social well-being; public consultations; preserving well-designed built form and cultural planning; inclusionary zoning; Ontario Human Rights Code protection; and the definition of “affordable housing”. The Applicant submits that the PPS policies related to these concerns address objectives for the community overall and are not intended to apply in all their aspects to individual projects or site-specific instruments. They address the overall achievement of municipal policy objectives. The Applicant submits that a single development cannot accommodate all of the objectives set out in the PPS. For example, it submits that the PPS housing policies address market-based and affordable housing needs and are not intended to be fully applied in every respect to individual projects. They are to be applied to address housing in the overall community. Regarding inclusionary zoning, the Applicant submits that the City had not yet passed an inclusionary zoning by-law when the proposed instruments were adopted and passed. It submits that even with the subsequent passage of such a by-law, the subject properties are not located within a Priority Major Transit Station Area and the inclusionary zoning policies do not apply. The Applicant submits that the Appellant has failed to describe how the proposed instruments fail to address any of the above-noted policies. It submits that the Appellant’s comments are not genuine, legitimate land-use planning grounds and merely constitute allegations and apprehensions using planning language.

31The Applicant submits that the Appellant also provided an oral deputation to City’s Planning and Development Committee on October 25, 2021 in which she raised concerns regarding: community engagement; site conditions; remediation; the Record of Site Condition for the subject properties; and inclusive zoning requirements in the City’s Rental Housing Protection By-law. The Applicant submits that none of these comments address genuine, legitimate or authentic land use planning issues under the Planning Act. It submits that they address procedural issues, issues under the purview of the Ministry of the Environment, Conservation and Parks (“MECP”), and the above-noted inclusionary zoning requirements that do not apply to the subject properties.

Evidence and Submissions of the City

32The City filed an affidavit sworn by Robert Ruggiero, dated August 18, 2022. He is a planner with the City. Based on his curriculum vitae and his background and qualifications, as set out in his affidavit, the Tribunal qualifies him to provide opinion evidence in the area of land use planning.

33The City submits that the Appellant’s Appeal Form makes no reference to applicable policy issues or to the proper application of the PPS or applicable provincial plans or official plans. It submits that the Appellant has failed to disclose any apparent land use planning ground upon which the appeals could succeed.

Evidence and Submissions of the Appellant

34In response to the motion, the Appellant filed an Affidavit Form, dated September 24, 2022, with an attached document containing evidence and submissions. She submits that she is prejudiced due to her character, integrity, dignity, and reputation being maligned by having to file a response to the motion while putting her health and safety at risk. She submits that it would be procedurally unfair for the Tribunal to adjudicate the motion to dismiss before other associated proceedings are concluded as it would prejudice her rights and those of others who may wish to appeal the proposed instruments. She states that:

• the motion to dismiss is premature;
• another person is interested in participating in the appeal;
• conflicting decisions ought to be avoided;
• the administration of justice should not be brought into disrepute by conflicting decisions;
• the associated proceedings involve the same subject matter and the present proceedings should be stayed until the associated proceedings have been concluded;
• avoidance of having to bring additional proceedings, wasted time, and costs;
• irreparable harm (to be fully explained later); and,
• the Appellant’s health issues requiring attention and accommodation.

35The Appellant submits that certain documents supporting her appeals have gone missing and she requests a fair opportunity to receive disclosure and to file additional materials.

36The Appellant submits that the decisions to approve the proposed instruments were made prior to public consultations. She submits that this resulted in public participation in the municipal process being rendered meaningless. In this regard, she submits that the proposed instruments are unconstitutional. She submits that the issue of their constitutionality is also contingent on the outcomes of the other associated proceedings.

37The Appellant submits that, at an appropriate time in the future, she must be given an additional opportunity to present on the authenticity of the reasons for her appeals and provide additional evidence to demonstrate that the appeals are worthy of the adjudicative process.

ANALYSIS AND FINDINGS

38The Tribunal’s authority for dismissing proceedings is set out in s. 19(1) of the Ontario Land Tribunal Act, 2021. Section 19(1)(c) to (e) states:

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,

(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.

39In relation to subsection (d) above, s. 4.6 (c) of the Statutory Power Procedural Act states:

4.6(1) Subject to subsections (5) and (6), a tribunal may dismiss a proceeding without a hearing if,

(c) some aspect of the statutory requirements for bringing the proceeding has not been met.

40Section 17(45) of the Planning Act sets out circumstances under which the Tribunal may dismiss an official plan amendment appeal proceeding. Section 17(45)(1)(i), (2) and (3) states:

17(45) Despite the Statutory Powers Procedure Act and subsection (44), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that,

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

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

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

41Section 34(25) of the Planning Act sets out similar language relating to the dismissal of zoning by-law amendment appeals.

42Section 17(25) of the Planning Act states that a notice of appeal of an official plan amendment must identify the parts of the official plan amendment that are being appealed and the reasons for the appeal and, where non-conformity with a provincial plan or inconsistency with a provincial policy statement is alleged, s. 17(25.1) requires that the appellant explain how the proposed amendment does not conform or is inconsistent. Section 17(25) and (25.1) states:

17(25) The notice of appeal filed under subsection (24) must,

(a) set out the specific part of the plan to which the notice applies;

(b) set out the reasons for the appeal; and

(c) be accompanied by the fee charged by the Tribunal.

(25.1) If the appellant intends to argue that the appealed decision is inconsistent with a policy statement issued under subsection 3(1), fails to conform with or conflicts with a provincial plan or, in the case of the official plan of a lower-tier municipality, fails to conform with the upper-tier municipality’s official plan, the notice of appeal must also explain how the decision is inconsistent with, fails to conform with or conflicts with the other document.

43Section 34(19) and (19.0.1) of the Planning Act sets out similar requirements for zoning by-law amendment appeals. It states that a notice of appeal must set out the objection to the by-law amendment and the reasons in support of the objection and that if an appellant intends to argue that the amendment does not conform with a provincial plan or is inconsistent with a provincial policy statement, the notice of appeal must explain how the amendment does not conform or is inconsistent.

44In its analysis below, the Tribunal will first address the application of s. 17(25.1) and 34(19.0.1) of the Planning Act requiring an explanation of non-conformity with a provincial plan or inconsistency with a provincial policy statement. It will then address the issue of the application of s. 17(45)(1) and 34(25) of the Planning Act regarding disclosure of an apparent land use planning ground upon which the appeals could be allowed. In that analysis, the Tribunal will also address the application of s. 19(1)(c) of the Ontario Land Tribunal Act, 2021 in terms of whether the proceeding has a reasonable prospect of success.

Issue 1. Explanations in the Appeal Form - [Sections 17(25.1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec17subsec25.1_smooth) and [34(19.0.1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec34subsec19.0.1_smooth) of the Planning Act

45Sections 17(25.1) and 34(19.0.1) of the Planning Act require that where an appellant alleges non-conformity with a provincial plan or inconsistency with a provincial policy statement, the appellant must explain in his or her notice of appeal how the decision being appealed fails to conform or is inconsistent. The required comprehensiveness of the explanation is assessed on a case-by-case basis. In some situations, it may be sufficient to have a brief statement demonstrating how the plan or policy statement applies and is addressed. In other more complex cases, where the application of the plan or policy statement is less clear or direct, a more detailed explanation may be required. However, the key point is that the applicable provisions in the plan or policy statement are identified, their link and application to the proposed instruments are demonstrated, and how they are addressed is shown.

46In her Appeal Form, the Appellant states that the proposed instruments do not conform to a provincial plan and are inconsistent with the PPS. As noted above, she sets out the following reasons for her appeals:

• the decision of the council of the City of Mississauga, does not conform with the provincial plan in effect on the date of the decision and is in conflict. In particular: (letter dated January 5, 2022 attached); and
• PPS: Statement 4.4: This Provincial Policy Statement shall be implemented in a manner that is consistent with the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. The City's processes have been discriminatory in effect and have adverse impact on the applicant, who is protected by the Human Rights Code. The applicant also alleges that the City may have breached her Charter rights. Additional amendments of these reasons may be required as well as completion of outstanding concurrent legal proceedings that have a bearing on this matter.

47Regarding the first listed reason for appeal, official plan and zoning by-law amendments must conform with provincial plans, but the Appellant does not identify in the Appeal Form or in her attached letter, dated January 5, 2022, the provincial plan to which she is referring or the specific policies of that plan that apply. This provides insufficient information for the other Parties, the public, and the Tribunal to identify the subject matter of the appeals and does not satisfy the requirements in s. 17(25) and (25.1) and 34(19) and (19.0.1) of the Planning Act.

48Regarding the second listed reason for appeal, PPS policy 4.4 states:

4.4 This Provincial Policy Statement shall be implemented in a manner that is consistent with Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms.

To apply this provision, one must identify the policies in the PPS for which their implementation is alleged to be inconsistent with the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms. The Appellant has failed to do this. She states that the City’s policies have been discriminatory in effect, but she does not identify the policies, indicate how they have been discriminatory, explain how this involves the PPS, or state how the proposed instruments, or the processes used in the lead up to their adoption and passage, have been discriminatory. She submits that the City’s decisions have resulted in tribunal and court proceedings that have aggravated her pre-existing medical issues and, given the nature of the City’s decisions, have put her life, health and safety at risk. In this manner, she submits that the City’s decisions have been oppressive. However, she does not state how this is caused or connected to the implementation of the PPS. In her book of authorities, the Appellant highlighted PPS policies 1.1.1, 1.4.1, 1.4.3, and 1.7.1. PPS policy 1.1.1 states that it is provincial policy that healthy, liveable and safe communities are to be sustained by, among other things, accommodating an appropriate affordable and market-based range and mix of residential types (including affordable housing), and improving accessibility for persons with disabilities and older persons by addressing land use barriers which restrict their full participation in society. PPS policy 1.4.1 states that it is provincial policy that planning authorities shall provide for an appropriate range and mix of housing options and densities required to meet projected requirements of current and future residents of the regional market area. PPS policy 1.4.3 requires the setting and implementation of targets for the provision of affordable housing. PPS policy 1.7.1 states that it is provincial policy that residential uses should respond to dynamic market-based needs and that necessary housing and a range of housing options for a diverse workforce should be supplied. The focus of the proposed instruments is to expand residential types and uses on the subject properties and expand housing options. The Appellant provides no explanations on how these PPS policies have been implemented in a discriminatory manner.

49Similarly, the Appellant fails to identify how the Ontario Human Rights Code has been violated or how the Canadian Charter of Rights and Freedoms has been breached. She provided caselaw and literature on the rights to life and equality and on the freedom of expression, but did not indicate how they specifically apply in the present case. She made no link between these rights and her concerns regarding affordable housing, public participation, or accommodation needs.

50Without linking the proposed instruments to inconsistencies with the PPS, the Tribunal finds that the Appellant has failed to provide the explanations required under in s. 17(25.1) and s. 34(19.0.1) of the Planning Act.

51Based on its finding that the Appellant has not complied with the requirements in s. 17(25) and (25.1) and 34(19) and (19.0.1) of the Planning Act, the Tribunal finds that an aspect of the statutory requirements for bringing the proceedings has not been met. Based on s. 4.6(b) and (c) of the Statutory Power Procedural Act and s. 17(45)(3) and 34(25)(3) of the Planning Act, the Tribunal finds that these are grounds to dismiss the Appellant’s appeals.

Issue 2 Land Use Planning Grounds and Prospects for Success: [Sections 17(45)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec17subsec45_smooth)(1)(i) and [34(25)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec34subsec25_smooth)(1)(i) of the Planning Act and Section 19(1)(c) of the Ontario Land Tribunal Act, 2021

52Sections 17(45)(1)(i) and 34(25)(1)(i) of the Planning Act state that the Tribunal may dismiss an appeal without a hearing where the reasons in the Appeal Form do not disclose any apparent land use planning ground upon which the instrument that is the subject of the appeal could be approved or refused by the Tribunal. Section 19(1)(c) of the Ontario Land Tribunal Act, 2021, states that the Tribunal may dismiss a proceeding without a hearing, if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.

53To determine whether the Appeal Form discloses any apparent land use planning ground upon which the proposed instruments could be approved or refused, the Tribunal must assess whether the reasons for the appeals raise land use planning issues based on applicable law and policy that can be linked to the proposed instruments. Couching an Appeal Form in land use planning language without providing an effective link to the proposed instruments and the applicable law and policy is insufficient.

54In undertaking the exercise to determine whether there are any apparent land use planning grounds upon which the proposed instruments could be approved or refused, the Tribunal also examines whether the grounds set out in the notice of appeal constitute genuine, legitimate and authentic planning reasons. Apprehensions, bare statements or the use of general planning language are not enough to raise a planning ground justifying a hearing. In determining whether reasons for appeal constitute genuine, legitimate and authentic planning reasons, the Tribunal may consider the Appeal Form and also supporting documents.

55As discussed above, in her Appeal Form, the Appellant states that the proposed instruments do not conform to a provincial plan and are inconsistent with the PPS. She does not identify the provincial plan to which she is referring or its policies that apply and, although she references PPS policy 4.4, she does not state how that policy applies in relation to the proposed instruments. Specifically, as discussed above, she does not identify how the effect of the City’s policies have been discriminatory, how this involves the PPS, or what the role of the proposed instruments, or the processes used in the lead up to their adoption and passage, have been discriminatory. She also fails to identify how the Ontario Human Rights Code has been violated or how the Canadian Charter of Rights and Freedoms has been breached. Regarding possible links between human rights and affordable housing issues, the Tribunal notes that the proposed instruments expand the types of residential built form and housing options that are permissible on the subject properties. They do not restrict rental or affordable housing. Without a proper link between the proposed grounds and the proposed instruments, the Tribunal finds that the proposed grounds in the Appellant’s Appeal Form are not land use planning grounds upon which the proposed instruments could be approved or refused.

56In the cover letter, dated January 5, 2021, which is attached to her Appeal Form, the Appellant includes, as noted above, additional reasons for appeal regarding: human rights issues associated with the timing of the passage of the proposed Zoning By-law Amendment; arbitrariness; exclusionary aspects of the proposed Official Plan Amendment that affect her human rights; and the need for the determination of an alleged illegal change of use and resolution of associated proceedings before the proposed Official Plan Amendment can be adjudicated.

57The Tribunal finds that although these may reflect important concerns of the Appellant, she does not link them to the proposed instruments. Regarding the Appellant’s first listed ground in the January 5, 2021 letter alleging human rights issues associated with the timing of the passage of the proposed Zoning By-law Amendment, the Tribunal finds again that these issues must be identified and linked to the proposed instrument.

58Regarding the second listed reason, the Appellant does not identify how the proposed instruments are arbitrary.

59Regarding the third listed reason, the Appellant does not identify how she is excluded from the community or impacted by the proposed Official Plan Amendment. The proposed Official Plan Amendment expands the current Residential High Density designation for the subject property, which presently allows for apartment dwellings and townhouse dwellings accessory to apartment dwellings. The proposed amendment would expand this by permitting townhouse dwellings that are not accessory to an apartment dwelling. This expansion of permissions does not require physical changes to the subject properties or require changes to their occupancy. It permits additional types of residential built form and housing options. It is not exclusionary.

60Regarding the fourth listed reason, the Appellant does not state why or how the identification of existing legal uses on the subject properties is a land use planning issue that must be determined. Existing uses are not altered under the proposed Official Plan Amendment and, if both residential and non-residential uses are presently permitted, the Appellant has not identified how this creates a land use planning ground upon which the proposed Official Plan Amendment could be approved or refused.

61With her Appeal Form, the Appellant also attached written submissions that she sent to the City between March 2019 and October 2021. In the over 900 pages of documents attached to her Appeal Form and letter, the Appellant raises process issues, housing concerns, environmental issues relating to the demolition of buildings on the subject properties, health issues of tenants, and again human rights-related issues. In those materials, she states that the renters at the subject properties would be unfairly displaced if the proposed instruments are approved and they would be left without affordable housing options. She states that rental housing must be preserved and not demolished. She states that rents are rising, there is a continuing reduction in affordable housing, and a lack of available housing. She states that the housing crisis dictates that more affordable housing must be made available. She states that all available City land should be used for affordable housing. She states that the proposed Official Plan Amendment does not accommodate an appropriate range and mix of residential options and it would exclude certain people by catering to a narrow demographic. She states that the proposed instruments do not include affordable housing targets, provide for all forms of housing to meet the needs of current and future residents, help achieve the provincial goal of enhancing the quality of life for all Ontarians, or promote enhanced human health and social well-being. She asserts that the proposed development would not improve accessibility for persons with disabilities. She also raises concerns regarding the need for strong communities, a clean and healthy environment, and economic growth, the need for planning for strong, sustainable and resilient communities for people of all ages, the need to encourage a sense of place, and the need for inclusive public consultations. She states that people who rent should not be excluded or marginalized and there are barriers restricting her full participation in society. She states that the relevant policies to be applied represent minimum standards that have not been applied.

62In regard to these concerns, the Tribunal finds again that the Appellant does not provide links to the proposed instruments to identify land use planning grounds to constitute an appeal. The Appellant alleges that the proposed Official Plan Amendment does not accommodate an appropriate range and mix of housing options and excludes renters, but she does not identify how the proposed designation would do this. She states that the proposed Official Plan Amendment does not establish or implement minimum targets for the provision of affordable housing, but provides no reference to any statutory, regulatory or policy requirements for the setting or implementation of such targets in site-specific official plan amendments. These are provided for elsewhere in the City’s Official Plan and are addressed on a community-wide basis. Municipalities have a responsibility to ensure that housing is accessible and barriers to accessible housing are eliminated. They must consider the need for a full range of housing, including affordable housing. In the present case, the proposed instruments permit additional types of residential built form and housing options. The proposed instruments do not exclude existing uses or dwelling types on the subject properties or exclude affordable or rental housing. They also do not require the demolition of rental housing. The Appellant has failed to demonstrate how the proposed instruments would result in changes in permissions or uses that would result in a reduction in affordable housing. The Appellant also has failed to identify discriminatory aspects of the proposed instruments. The Appellant provided literature on discrimination in zoning, but she did not identify how the proposed instruments are discriminatory. She provided no submissions on how the proposed instruments create barriers that negatively affect a group of individuals in a disproportionately negative way or have the effect of limiting rights to generally available opportunities.

63The Appellant states that housing is required to meet the social, health and well-being requirements of current and future residents, but does not identify how the proposed instruments fail to do this. She states that planning should not exclude or marginalize renters, but she does not state how the proposed instruments would do this. The Appellant does not state how the proposed designation permitting townhouse dwellings that are not accessory to an apartment dwelling on the subject properties would alter existing conditions, affect rental or affordable housing, or cause barriers. The Tribunal notes that the proposed instruments would facilitate residential intensification on the subject properties and provide more, rather than less, housing and housing options on the site.

64The Appellant states that the proposed development and the processes that have led to the adoption and passage of the proposed instruments are not consistent with human rights laws, but she again does not state how the proposed instruments fail in this regard. She alleges that the proposed instruments were “pre-decided” before public consultations were held and no public participation would have changed the outcome, but she does not provide a basis for these allegations. She alleges that the proposed development does not improve accessibility for persons with disabilities, but she does not state how. She alleges ongoing barriers and refusals to identify, prevent and remove those barriers, but does not state what they are or how they are caused or aggravated by the proposed instruments. The Tribunal again notes that the purpose of the proposed instruments is to expand the types of residential units and housing options permitted on the subject properties. Policies regarding accessibility and the removal of barriers are addressed elsewhere in the City’s Official Plan and Comprehensive Zoning By-law and do not need to be re-stated in each site-specific instrument that is adopted or passed by the City.

65The Appellant states that it is a provincial goal to enhance the quality of life for all Ontarians, but again she does not identify how the proposed instruments fail to do this. Similarly, she does not identify how the proposed instruments fail to protect health, safety, or social well-being or provide for a strong community, a clean and healthy environment, and economic growth. Again, The Tribunal notes that these issues are addressed elsewhere in the City’s Official Plan and Comprehensive Zoning By-law and they do not need to be re-stated in each site-specific instrument that is adopted or passed by the City. She states that relevant policies have been ignored or bypassed, but she does not specifically identify what those policies are or how they are being ignored or bypassed. She states that there was not proper public participation and the decisions were “pre-decided”, but does not state how. She alleges that the proposed instruments or the processes leading up to their adoption and passage have diminished the importance of public consultations, but she does not identify how the proposed instruments do this or what statutory, regulatory, or policy requirements were not complied with. The Appellant alleges that the proposed instruments do not encourage a sense of place by preserving well-designed built form and cultural planning, and by conserving features that help define character, but she does identify how they fail to do so. She states that the dwelling at 51 Tannery Street is an important building and implies that it will be torn down as a result of the proposed instruments; however, she does not state how the proposed instruments would require that to happen. The Tribunal again notes that the proposed Official Plan Amendment allows for additional uses and housing options on the subject properties and that neither of the proposed instruments requires the demolition or removal of built form or rental housing on the properties.

66The Appellant also makes reference to the City’s Rental Housing Protection by-law, the City’s Demolition Control By-law, the Residential Tenancies Act, the Building Code, and health and safety violations; however, she does not elaborate on how these apply or under what authority the Tribunal would apply them.

67The Appellant also submits that under Ontario Regulation 153/04, the Applicant must submit a Record of Site Condition and have it posted on the MECP’s Environmental Registry. The Tribunal notes that such matters are outside of the Tribunal’s authority regarding Planning Act appeals.

68The Appellant made submissions that it would be procedurally unfair for the Tribunal to adjudicate the motion to dismiss before other associated proceedings are concluded. She argues that the motion to dismiss is premature, another person is interested in participating the appeals, conflicting decisions ought to be avoided, and the motion is an inefficient use of time and resources. She states that the motion will cause undisclosed irreparable harm. The Appellant does not adequately elaborate on these concerns or connect them to land use planning issues. She also fails to identify land use planning issues affecting the subject properties that are being addressed in other fora that may result in conflicting or inconsistent decisions.

69The Appellant further submits that due to improper decision making and inadequate public consultations during the City’s decision-making processes, the proposed instruments are unconstitutional. She submits that the issue of constitutionality is contingent on the outcomes of the other associated proceedings. The Appellant does not clarify the alleged violations of the Constitution Act, 1867 or the Constitution Act, 1982 or the Canadian Charter of Rights and Freedoms and she has not filed a Notice of Constitutional Question in these proceedings. She alleges that the proposed instruments were “pre-decided” prior to public consultations and that this is unconstitutional; but she does not state how this is so. She states that the City’s decisions have indirectly delayed her from obtaining preventative medical treatment, which she asserts constitutes an infringement of her right to life and security of the person. But again she does not state how this is so or how this is a violation of s. 7 of the Canadian Charter of Rights and Freedoms. She filed a book of authorities with cases and literature regarding the freedom of expression and the rights to life and equality, but she does identify how these rights are violated in the context of the proposed instruments or the processes leading up to their passage and adoption.

70The Tribunal finds that the Appellant has failed to identify applicable land use planning grounds focusing on the proposed instruments and has failed to establish that her reasons for appeal are genuine, legitimate or authentic. Grounds for appeal must be directly related to the instruments that are being adjudicated. Without such links, the appeal documents fail to disclose an apparent land use planning ground upon which the proposed instruments could be approved or refused. Without them, there are no identified genuine, authentic, or legitimate land use planning grounds to constitute an appeal.

71Based on this, the Tribunal further finds that the appeals have no reasonable prospect of success.

CONCLUSIONS

72Based on its findings that the Appellant has not complied with the requirements in s. 17(25) and (25.1) and 34(19) and (19.0.1) of the Planning Act, the Tribunal finds that an aspect of the statutory requirements for bringing the proceedings have not been met.

73Applying s. 17(45)(1)(i) and 34(25)(1)(i) of the Planning Act, the Tribunal finds that the grounds set out in the Appellant’s Appeal Form do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal. Applying s. 19(1)(c) of the Ontario Land Tribunal Act, 2021, the Tribunal finds that the proceedings have no reasonable prospect of success.

74Based on these findings, the Tribunal finds that there are appropriate grounds to dismiss the Appellant’s appeals. It finds that the appeals should be dismissed.

Other Issues

75The Applicant raised arguments relating to the appeals being frivolous, vexatious or commenced in bad faith, the appeals being made only for the purpose of delay, and the appeals being related to matters that are outside the jurisdiction of the Tribunal. Given the Tribunal’s findings in regard to the application of s. 17(25) and (25.1) and 34(19) and (19.0.1) of the Planning Act, s. 17(45)(1)(i) and 34(25)(1)(i) of the Planning Act, and s. 19(1)(c) of the Ontario Land Tribunal Act, 2021, the Tribunal finds that an analysis of these issues is not necessary.

ORDER

76The Tribunal grants the Applicant’s motion in part and orders that the appeals are dismissed.

“Hugh S. Wilkins”

HUGH S. WILKINS VICE-CHAIR

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.