Friends to Keep Vaughan Green v. Vaughan (City), 2023 CanLII 43656

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 15, 2023

CASE NO(S).: OLT-22-002905

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

Appellant: Friends to Keep Vaughan Green

Appellant: Hatem Abou El-Nile

Applicant: Clubhouse Developments Inc.

Subject: Zoning By-law

Description: To permit the development of a 662-unit subdivision on lands currently occupied by the Board of Trade Golf Course

Reference Number: ZBA 035-2022

Property Address: 20 Lloyd Street, 241 Wycliffe Avenue, 737 and 757 Clarence Street

Municipality/UT: Vaughan/York

OLT Case No: OLT-22-002905

OLT Lead Case No: OLT-22-002905

OLT Case Name: Friends to Keep Vaughan Green v. Vaughan (City)

PROCEEDING COMMENCED UNDER section 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Friends to Keep Vaughan Green

Appellant: Hatem Abou El-Nile

Applicant: Clubhouse Developments Inc.

Subject: Proposed Official Plan Amendment

Description: To permit the development of a 662-unit subdivision on lands currently occupied by the Board of Trade Golf Course

Reference Number: OPA 74

Property Address: 20 Lloyd Street, 241 Wycliffe Avenue, 737 and 757 Clarence Street

Municipality/UT: Vaughan/York

OLT Case No: OLT-22-003094

OLT Lead Case No: OLT-22-002905

Heard: April 13, 2023 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Clubhouse Developments Inc.	Mark Flowers* Samantha Lampert*
City of Vaughan	Andrew Baker* Zaynab Al-waadh* Pittman Patterson* in absentia
Friends to Keep Vaughan Green	David Donnelly*
Hatem Abou El-Nile	Self-Represented

DECISION DELIVERED BY C. HARDY AND K. SMITH AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision and Order arises from the hearing of a Motion brought by Clubhouse Developments Inc. (“Applicant”) pursuant to s.17(45) and s. 34(25) of the Planning Act, R.S.O. 1990, c. P. 13. (“Act”) and s.19(1)(c) of the Ontario Land Tribunal Act, 2021 (“OLTA”) to dismiss without a full hearing, Appeals by Friends to Keep Vaughan Green (“Friends”) and Hatem Abou El-Nile (together referred to as “Appellants”) against the decisions of the Regional Municipality of York’s (“Region”) approval of Official Plan Amendment No. 74 (“OPA”) and the City of Vaughan’s (“City”) passing of Zoning By-law Amendment No. 035-2022 (“ZBA”) (together referred to as “Appeals”).

2The Applicant owns the lands municipally known as 20 Lloyd Street, 241 Wycliffe Avenue, 737 and 757 Clarence Street, Vaughan (“Subject Property”) which are currently occupied by The Country Club Golf Course, portions of the Humber River valley system and three (3) existing single detached dwellings. The Subject Property consists of a total of 118 hectares (“ha”).

3The Applicant’s first submission to the City sought approval to facilitate a development consisting of single detached dwellings, townhouses and apartment buildings with a total of approximately 1,215 residential units. In addition to the residential units, the proposal included open space blocks, parks, roads, and infrastructure uses (“Original Proposal”).

4After numerous meetings with the City, various agencies and the public, the final submission proposed to re-develop the Subject Property with 662 low-rise residential units, open space blocks, parks, roads, and infrastructure uses (“Proposed Development”). Through the Proposed Development, approximately 2/3 of the 118 hectares will be conveyed to public authorities for park and open space uses and approximately 18 ha will be used for residential purposes. The Proposed Development is the fourth revision of the Original Proposal and responds to comments received from staff, various agencies and the public.

5In order to give effect to the Proposed Development, applications for an Official Plan Amendment, Zoning By-Law Amendment and approval of a Draft Plan of Subdivision (“Applications”) were submitted to the City and Region.

6Following an extensive review and commenting process, City Staff recommended Council approve the Applications. On February 15, 2022, City Council adopted the OPA, passed the ZBA and approved the Draft Plan of Subdivision, subject to Draft Plan conditions. On March 17, 2022, the Region, being the relevant approval authority, approved the OPA in its entirety, without modifications.

7On February 27, 2022, Mr. El-Nile appealed the ZBA to the Tribunal pursuant to s. 34(19) of the Act and on April 5, 2022, Mr. El-Nile appealed the OPA to the Tribunal pursuant to s.17(36) of the Act. The Notices of Appeal both list concerns with respect to loss of openness to green space and traffic. A more detailed letter accompanied each of the Notices of Appeal and questioned the health impacts of reduced green space asserting that consideration was not given to policies in the Provincial Policy Statement, 2020 (“PPS”) and Vaughan Official Plan (“VOP”) relating to the promotion of safe and healthy communities and natural environment impacts on health. Mr. El-Nile’s OPA Appeal specifically referred to Policy 1.1.3.4 of the PPS and Policy 3.2.1.1 of the VOP. Mr. El-Nile’s ZBA Appeal did not refer to any specific policies.

8On March 8, 2022, Friends appealed the ZBA to the Tribunal pursuant to s. 34(19) of the Act and on April 5, 2022, Friends appealed the OPA to the Tribunal pursuant to s.17(36) of the Act. The Notices of Appeal both include detailed letters listing a number of concerns including, but not limited to, overdevelopment, settlement area, open space, transportation and natural heritage policies in the PPS and growth, community and core feature criteria in the VOP. In the Notices of Appeal, Friends take the position that the OPA and ZBA do not have regard for matters listed in s. 2 of the Act, are inconsistent with specific policies in the PPS and do not conform with specific sections and policies set out in the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”), Region of York Official Plan (“Region OP”) and the VOP.

9The related Draft Plan of Subdivision (“POS”) and Draft Plan conditions (“Conditions”) were approved by the City and are not subject to appeal.

10On March 10, 2023, the Applicant filed a motion to dismiss the Appellants’ Appeals without a hearing.

MOTION HEARING

11The Applicant seeks an Order of the Tribunal dismissing the Appellants’ Appeals without a full hearing pursuant to s. 17(45) and s. 34(25) of the Act and s. 19(1)(c) of the OLTA.

12In the alternative, the Applicant seeks an Order of the Tribunal directing certain proposed issues of the Appellants be excluded from the Issues List on the basis that they are outside of the jurisdiction of the Tribunal, lack clarity and/or are irrelevant, repetitive, or otherwise improper.

13The Applicant brings this Motion on the grounds that the Appeals:

a. Fail to disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the Appeals, nor do the Appeals have any reasonable prospect of success,

b. Raise proposed issues that:

i. fail to constitute genuine, legitimate and authentic land use planning issues,

ii. are speculative and merely raise apprehension,

iii. have been sufficiently addressed in accordance with the Planning Act,

iv. are beyond the Tribunal’s jurisdiction, and/or

v. pertain to the related Draft Plan of Subdivision and Draft Plan conditions which have been approved by the City and are not subject to the Appeals.

14The Tribunal heard oral submissions from Counsel and Mr. El-Nile. In addition, the Tribunal received extensive authorities from Counsel reflecting decisions made by the Tribunal, its predecessors and the Courts and had the benefit of written affidavit evidence from various experts.

15The materials before the Tribunal on the Motion to Dismiss include the following Exhibits:

• Exhibit 1: Motion Record of Clubhouse Developments Inc.
• Exhibit 2: Responding Motion Record of City of Vaughan
• Exhibit 3: Responding Motion Record of Hatem Abou El-Nile
• Exhibit 4A: Responding Motion Record of Friends to Keep Vaughan Green
• Exhibit 4B: Responding Book of Authorities of Friends to Keep Vaughan Green
• Exhibit 5: Reply Motion Record of Clubhouse Developments Inc.
• Exhibit 6: Book of Authorities of Clubhouse Developments Inc.

Statutory Regime

16The Act and the OLTA establish criteria for the consideration of dismissing appeals without a full hearing. The relevant sections are set out below for ease of reference.

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

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

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,

ii. The appeal is not made in good faith or is frivolous or vexatious,

iii. The appeal is made only for the purpose of delay, or

iv. The appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.

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.

4. The appellant has not paid the fee charged by the Tribunal.

5. The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal.

18Section 17(25.1) of the Act provides the following:

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

19Section 34(25) of the Act provides the following:

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

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 Tribunal could allow all of part of the appeal,

ii. The appeal is not made in good faith or is frivolous or vexatious,

iii. The appeal is made only for the purpose of delay, or

iv. The appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.

2. The appellant has not provided written reasons for the appeal.

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

4. The appellant has not paid the fee charged by the Tribunal.

5. The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal.

20Section 34(19.0.1) of the Act provides the following:

If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3(1), fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan, the notice of appeal must also explain how the decision is inconsistent with, fails to conform with or conflicts with the other document.

21Section 19(1) of the OLTA states:

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

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

22The grounds for dismissing an appeal are disjunctive. In other words, only one of the several grounds set out in the Act and the OLTA must be satisfied to warrant dismissing an appeal.

Friends to Keep Vaughan Green Appeal

23In support of the Motion, the Applicant submitted and relied upon the sworn Affidavits of a number of experts, including Billy Tung, a Registered Professional Planner. Mr. Tung expressed the opinion that the Appellants’ Appeals do not identify nor substantiate any land use planning grounds upon which the Tribunal could allow the Appeals at a merit hearing.

24In opposition to the Motion, Friends submitted and relied upon the sworn Affidavits of a number of experts, including Allan Ramsay, a Registered Professional Planner. Mr. Ramsay opined that Friends’ Appeals disclose adequate and legitimate planning grounds upon which the Tribunal could grant the Appeals, in whole or in part, at a merit hearing.

25The Applicant argued that Friends’ Notices of Appeal are erroneous as they state that the Applications will permit 1,215 mixed units. The Original Proposal consisted of a development with 1,215 units, however the City approved the Proposed Development consisting of 662 units. Through the extensive public process that the Applications underwent, the Original Proposal was scoped to nearly half the number of units. The Applicant disagreed with Friends’ assertion that the reference to 1,215 units was a typographical error and argued that the crux of the issue is that Friends does not understand the Applications that have been approved. The Applicant submits that there is no reasonable prospect of success on the ground of overdevelopment since it is based upon an erroneous understanding of the Applications and based on the Original Proposal which was not approved and as such, cannot be appealed.

26The Applicant argued that further evidence of Friends’ misunderstanding the Applications is found in the contradictory language used by its experts in their Responding Motion materials. For example, Mr. Ramsay notes that the OPA and ZBA do not have regard for matters of Provincial interest with respect to mitigation of greenhouse gas emissions and adapting to a changing climate as the low-density large footprint of the Proposed Development is not a responsible design. Mr. Ramsay then refers to the Proposed Development as compact urban form when discussing inconsistencies with settlement area policies of the PPS but goes on to describe the Proposed Development as not promoting compact form when discussing inconsistencies with climate change policies of the PPS. The Applicant submitted that the experts are not consistent on what is appropriate development on the Subject Property.

27The Applicant further argued that Friends’ Notices of Appeal do not sufficiently explain how the Proposed Development is inconsistent or incompatible. The Proposed Development situates low-rise residential adjacent to low-rise residential which are similar in scale, height, massing and building lot type. Friends did not provide the Tribunal with any evidence demonstrating an incompatible design in the built form of the Proposed Development.

28The Applicant emphasized that any arguments relating to loss of greenspace are a misrepresentation. The greenspace that both Appellants allege will be lost refers to a privately owned commercial space operated as a golf course. The Appellants and the public do not have a right to access this privately owned space in its current form. However, the Applicant submitted that the Proposed Development would convey approximately 77 ha of the Subject Property to public authorities for park and open space uses, which will be a significant increase in publicly accessible greenspace over that which is currently publicly accessible.

29The Applicant responded to Friends’ Appeal ground that the Applications are premature by pointing the Tribunal to the comprehensive studies and reports that were prepared and reviewed by City staff and other relevant authorities. The Applicant argued that any additional work and updated reports would be completed during the clearing of Conditions. Mr. Tung reviewed the extensive list of studies that were required and opined that they were sufficient. He relied on the experts’ opinions in the studies that impacts from the Proposed Development have been appropriately assessed. The Applicant submits that the Appeal grounds related to prematurity are not legitimate nor worthy of adjudication.

30The Applicant referred to a number of paragraphs in Friends’ Responding Motion materials discussing amendments to the Conditions or additions to the Conditions as a possible outcome of the Appeals. The Applicant argued that the Plan of Subdivision and the Conditions are not under appeal, they have been approved by the City and the Tribunal has no jurisdiction to amend nor change the Plan of Subdivision and Conditions. The Applicant alleged that Friends is attempting to “do through the back door what they cannot do through the front door” and challenge elements of the approved Plan of Subdivision and Conditions through Appeals of the OPA and ZBA.

31The Applicant conceded that Friends employed planning language in the Notices of Appeal, however, the Applicant maintains that pursuant to the test set out in Toronto (City) v. East Beach Community Assn, 1996 CarswellOnt 5740, [1996] O.M.B.D. 1890, 42 O.M.B.R. 5095 (“East Beach”), this is not sufficient. As set out in East Beach, there needs to be substance to the Appeal grounds in order to meet the test and Friends has not provided any substance in its Notices of Appeal.

32The Applicant submitted that the Tribunal should be guided by the decision of the Ontario Superior Court of Justice in Zellers Inc. v. Royal Cobourg Centres Ltd., 2001 CarswellOnt 3362 (“Zellers”) and the decision of the Local Planning Appeal Tribunal (“LPAT”) in Calloway REIT (Whitby NE) Inc. v. Whitby (Town), 2020 CarswellOnt 18046 (“Calloway”). In Zellers, the Court found that “…it is not sufficient that appellants raise land use issues in the Notice of Appeal. Such issues have to be worthy of adjudication and the responsibility falls on the shoulders of the appellants to demonstrate through their conduct in pursuing the appeal, including their gathering of evidence to make their case, that the issues raised in their Notice of Appeal justifies a hearing”. Similarly, in Calloway, “…(w)here an appellant disagrees with data or expert analysis that support a proposed development, the Tribunal expects the appellant to present its own analysis in support of its appeal”. The Applicant argued that Friends did not produce any independent empirical work, rather they simply reviewed the work completed by the Applicant. The Applicant argued that caselaw demonstrates that this is not enough to survive a Motion to Dismiss.

33In the alternative, if the Tribunal find that Friends has met the threshold and dismisses the Motion to Dismiss, the Applicant seeks the alternative relief of an Order of the Tribunal to scope and refine the issues on the Issues List. The Applicant argued that many of the issues are broad and lack the clarity required to enable the Applicant to know the case that it must meet at a merit hearing. Further, many other issues on the Issues List are improper and should be excluded in their entirety.

34The City filed a Response to Motion and submitted that it is participating in the proceedings, including the Motion to Dismiss, to demonstrate that the Applications underwent a thorough and comprehensive process prior to approval. The City submitted that it defends the process that it underwent in approving the Applications and supports the Applicant’s Motion to Dismiss. The City has not been persuaded by the Appellants’ Notices of Appeal or Motion materials.

35Friends opposes the Motion to Dismiss the Appeals and argued that the threshold to dismiss an appeal is high and the Applicant did not establish that Friends’ Notices of Appeal were inadequate in laying out the grounds of the Appeals.

36Friends retained a planner, ecologist, engineer and traffic expert to review the reports completed by the Applicant and assist with preparation of the Notices of Appeal. Friends argued that they followed a comprehensive and thorough process in preparing and submitting the Notices of Appeal and the grounds of appeal have a high probability of success at a merit hearing.

37In its oral submissions, Friends alleged that the process in which the Motion to Dismiss unfolded was unfair. The Applicant’s Notice of Motion contained only one expert affidavit, which was Mr. Tung’s planning opinion. Friends’ Responding Motion materials contained four expert affidavits which the Applicant responded to with additional expert affidavits in their Reply Motion materials. Friends alleges that this process was unfair as it did not allow an opportunity to cross examine the Applicant’s witnesses. Resulting from the absence of cross examination, Friends submitted that the Tribunal should disregard the evidence and submissions of the Applicant where they were not in agreement with Friends’ experts.

38Friends disagreed with the Applicant’s argument that it misunderstands the Proposed Development. Friends submitted that the reference in the Notices of Appeal to 1,215 units was simply a typographical error, not a misunderstanding of the Applications. The correct OPA and ZBA numbers were provided in the Notices of Appeal and there was no evidence provided by the Applicant to support an allegation that there is a misunderstanding of the Proposed Development. With respect to the Applicant’s argument that Friends’ experts contradicted themselves, in his written Affidavit Mr. Ramsay noted that the area coverage proposed for 1,215 units and 662 units is almost identical as are the road networks and the loss of Significant Woodland. He concluded that the Notices of Appeal reflect the approvals being appealed, regardless of the typographical error. Friends’ submitted that there was no confusion nor misunderstanding of the Applications and the Notices of Appeal are accurate, but for the typographical error.

39Friends argued that the Applications are premature as they do not consider the impacts that the Proposed Development will have on adjacent lands or climate change. One example raised by Friends notes that climate change is a significant issue and the impact of the loss of the Significant Woodland on climate change has not been addressed. Friends acknowledges that the Subject Property is private land, however, maintained that climate change is an issue regardless of whether land is public or private. Friends submitted that a merit hearing could be conducted on climate change alone given the endangered species habitat that will be affected by the loss of Significant Woodland if the Proposed Development proceeds.

40Friends responded to the Applicant’s argument that the Plan of Subdivision and Conditions are outside of the Tribunal’s jurisdiction in the Appeals. Friends agreed that the Tribunal cannot amend the Conditions, however, argued that the Tribunal could allow the OPA Appeal in part. The consequence of this decision could be an Order to amend the OPA which would consequently amend the Plan of Subdivision, and possibly the Conditions. For example, if the Tribunal makes a finding at a merit hearing that there will be impacts on significant environmental features, then the Appeals would be allowed. Friends argued that these types of fundamental matters are not resolved at the Plan of Subdivision stage to which there is no right of appeal, but rather they are properly dealt with in these Appeals. It was further argued that the VOP states that a Plan of Subdivision must conform with the VOP and as such, it is within the Tribunal’s jurisdiction to require changes to land uses through the OPA and ZBA.

41Friends maintains that it met the test set out in East Beach and the Notices of Appeal set out the “how” and the “why” to enable the decision maker and the Applicant to know the case to be met. Friends submitted that the Notices of Appeal list a number of grounds, each of which independently would meet the test. For example, Friends argued that the OPA Notice of Appeal stated:

“…(i) OPA 74 does not have regard for the following matters of Provincial Interest as set out in Section 2 of the Planning Act:

… Item (h) – the proposal does not represent orderly development. The proposed development is an overdevelopment of the site and will have undue adverse impacts on surrounding properties and the streetscape:…”

42The ZBA Notice of Appeal notes the same ground and Friends maintains that this ground alone could be the basis for a merit hearing as overdevelopment and adverse impacts on adjacent lands are not permitted. Friends argued that in East Beach, the Board stated that “(w)hat these particular provisions allow the Board to do is seek out whether there is authenticity in the reasons stated, whether there are issues that should affect a decision in a hearing and whether the issues are worthy of the adjudicative process”. Further in Grandview Ravines Inc. v. Brantford (City), 2015 CarswellOnt 18783 the Board cited a list of cases setting out the principle that a Respondent is permitted to elaborate and clarify grounds for appeal in response to a Motion to Dismiss. In this case, Friends submitted that it raised fundamental issues, such as climate change, traffic, endangered species and compatibility, and these are genuine planning issues worthy of adjudication.

43Friends relied on the Tribunal decision in Earls Road Developments Limited v. Muskoka (District Municipality), 2022 CanLII 60862 (“Earls Road”) to argue that one of the elements considered when deciding a Motion to Dismiss is the retention of experts in support of a position. Friends argued that similar to the facts in Earls Road, it retained a number of experts upon whose opinions they intend to rely at a merit hearing. Further, the retained experts support both their position on the Appeals and also their position that the Appeals have merit and a reasonable prospect of success. Friends also argued that it went further than Earls Road and retained Counsel to assist with preparation of the Appeals.

44Friends submitted that if the Tribunal grants the alternative relief requested, only issues that are outside of the Tribunal’s jurisdiction could properly be excluded. Following the preparation of the original Issues List, Friends refined the issues that it wishes to pursue and the revised list is set out in the Friends To Keep Vaughan Green: Scoped Issues List (“Issues List”) attached as Schedule A to this decision. In its Responding Motion materials, Friends submitted that it is no longer pursuing the grounds of Appeal related to potential impacts to features of significant architectural, cultural, historical, archaeological or scientific interest or issues related to growth management.

Hatem Abou El-Nile Appeal

45In support of the Motion to Dismiss Mr. El-Nile’s Appeals, the Applicant argued that Mr. El-Nile’s Notices of Appeal failed to disclose any land use planning grounds upon which the Tribunal could allow the Appeals and further that the Appeals have no prospect of success. The Applicant submitted that references to policy 1.1.3.4 of the PPS and policy 3.2.1.1 of the VOP without sufficient explanation does not satisfy the requirements of the Act. The Applicant submitted that s. 17(25.1) and s. 34(19.0.1) of the Act requires an Appellant to explain how a decision is inconsistent with, fails to conform with or conflicts with a policy statement or a provincial plan.

46One of Mr. El-Nile’s Appeal grounds relates to the lack of a buffer in his rear yard which he alleges will result in negative impacts on his health. The Applicant submitted that this ground raises mere apprehensions without any reasonable prospect of success. In his written Affidavit, Mr. Tung noted that the Proposed Development had been intentionally designed to provide for additional lot depth to accommodate existing trees and that details relating to the buffer are addressed in the Conditions. Mr. Tung opined that from a planning perspective, there would be no adverse impacts on Mr. El-Nile’s property and mental health impacts from development are not a recognized planning concern nor identified as such in Provincial or Municipal policies.

47Mr. El-Nile asserted that mental health studies should be required by the City to assess the negative impacts relating to the loss of green space on mental health. The Applicant argued that the Appeals are within the Planning Act regime and the Act makes it clear what types of studies may be requested by a Municipality when processing an OPA or ZBA application. In this regard, there is no mention in the Act of health impact studies nor mental health studies. Further, Mr. Tung submitted that Municipalities may require other information or materials not prescribed in the Act, but only if their Official Plan contains provisions relating to that requirement. In this case, the VOP does not require the submission of a health impact assessment for a development application. Further, the Act and provincial policies speak to the protection of public health and safety but Mr. El-Nile has failed to provide any authority to demonstrate that public health and safety policies extend to mental health impacts and as such, this Appeal ground has no reasonable prospect of success.

48The Applicant submitted that the Responding Motion materials filed by Mr. El-Nile included a document titled “Affidavit of Robert Gifford”, however this document was neither sworn nor affirmed by Mr. Gifford. The Applicant argued that Mr. El-Nile has failed to comply with the Rules as the Responding Motion materials did not contain sworn evidence. Despite this, the Applicant went on to argue that Mr. Gifford provided a high-level review of the correlation between access to public green space and an individual’s health. Mr. Gifford did not provide an assessment or opinion on the Proposed Development nor speak to the Applications or the Appeals. As such, the Applicant argued that Mr. El-Nile’s Responding Motion materials cannot be given any weight by the Tribunal as they did not contain sworn evidence. If the Tribunal were to consider Mr. El-Nile’s materials, the Applicant argued that Mr. Gifford does not address the Proposed Development at all but rather takes a large-scale view which is too generic to draw conclusions from.

49The Applicant referred the Tribunal to the decision in East Beach and submitted that similar to the Appellant in that case, Mr. El-Nile is merely raising apprehensions in his Notices of Appeal noting that further study is required, and this is not sufficient. The Applicant disagreed that Mr. El-Nile did not have time to prepare the study he referred to in his submissions as the Appeals were filed more than one year prior to the Motion to Dismiss being heard.

50The Applicant submitted that the Tribunal be guided by the decision in Kangappaden v. Brampton (City), 2021 CarswellOnt 6434 (“Kangappaden”) which was very factually similar to this Motion to Dismiss. The Appellant in Kangappaden resided adjacent to a golf course which had received approval, following an extensive public process, to be re-developed with residential dwellings. The Appellant’s appeal noted the City’s need for green space and in its decision, the Local Planning Appeal Tribunal distinguished between private and public open space or green space. In Kangappaden if was found that land use planning decisions are concerned with land uses, not land users. The Applicant argues that similarly, Mr. El-Nile’s Appeals raise concerns related to his use, not land uses in general and as such his Notices of Appeal do not raise any genuine land use planning grounds worthy of the adjudicative process.

51The City filed a Notice of Response to Motion providing the submissions set out in paragraph 34 above.

52Mr. El-Nile opposes the Motion to Dismiss the Appeals and did not respond to nor make submissions on the alternative relief sought by the Applicant.

53Mr. El-Nile argued that locating the greenspace, including the proposed buffers, on private land will not ensure its long-term protection. Mr. El-Nile agreed with Mr. Tung that increased public access to greenspace is beneficial to the public and the community. He also submitted that he understood that the Subject Property is privately owned land that the Applicant is entitled to make changes to, however, he submitted that he would like to ensure that the Applicant is attentive to potential damages that proposed changes will cause to existing residents.

54Mr. El-Nile argued that greenspace plays a role in the protection of public health and safety and the PPS speaks to health in general terms. He submitted that it is up to decision makers to go beyond the minimum requirements set out in the PPS and consider the opinions of health specialists. He maintained that the grounds raised in his Notices of Appeal are not mere apprehensions and that mental health is a planning concern that has not been studied or tested as yet. He acknowledged that mental health is not a planning matter but is a concept that he is trying to introduce in relation to Settlement policies set out in the PPS concerning healthy, livable and safe communities.

55Mr. El-Nile submitted that he retained Mr. Gifford to advise on the Motion to Dismiss and to complete a study about the effect of the Proposed Development on the mental health of surrounding residents which he intends to present as evidence at the merit hearing. He noted that Mr. Gifford had not had sufficient time to conduct the study prior to the Motion to Dismiss and further submitted that he would like an opportunity to share the results of the study on the expected health impacts of the Proposed Development on existing residents, including himself.

ANALYSIS AND FINDINGS

56The Tribunal carefully considered the submissions of the Parties and the detailed motion materials filed by the Parties and makes the findings that follow.

57The Tribunal’s authority for dismissing an official plan amendment appeal and/or a zoning by-law amendment appeal can be found in s. 19(1) of the OLTA, s. 17(45) and s. 34(25) of the Act, which are set out above. The moving party in a Motion to Dismiss need only demonstrate that one of the grounds for dismissal have been satisfied.

58In making a decision on whether to dismiss an appeal without a hearing, the Tribunal is guided by the oft-cited decision in East Beach where in considering s. 17(45)(a)(i) and s. 34(25)(a)(i) of the Act, the Ontario Municipal Board provided the following guidance:

…The Board is entitled to examine the reasons stated to see whether they constitute genuine, legitimate and authentic planning reasons. This is not to say that the Board should take away the rights of appeal whimsically, readily and without serious consideration of the circumstances of each case. This does not allow the Board to make a hasty conclusion as to the merit of an issue. Nor does it mean that every appellant should draft the appeal with punctilious care and arm itself with ironclad reason for fear of being struck down. What these particular provisions allow the Board to do is seek out whether there is authenticity in the reasons stated, whether there are issues that should affect a decision in a hearing and whether the issues are worthy of the adjudicative process.

…it is our finding that it is not good enough to simply raise apprehension. It would not constitute apparent planning ground by saying that further expert study is required with the hope that once a hearing is convened, more real issues can come forth. Such an approach will never lead to any finality, no matter how careful and sound an opinion is founded.

59The threshold set by the Board in East Beach is high and the Tribunal acknowledges that this is for good reason. A decision to dismiss an appeal is not one that the Tribunal takes lightly and all evidence and submissions must be carefully considered to determine whether an appeal discloses genuine, legitimate and authentic planning reasons.

Friends to Keep Vaughan Green Appeal

60The Motion to Dismiss is denied with respect to the Friends’ Appeals.

61At the outset, the Tribunal will address Friends’ allegation of an unfair process due to their alleged inability to cross-examine the Applicant’s experts. The Tribunal disagrees with Friends that the process was unfair. Friends had ample opportunity to cross examine the Applicant’s experts including, but not limited to, requesting an adjournment of the Motion to Dismiss to allow time to cross examine, summonsing experts to appear at the Motion to Dismiss or securing a location to cross examine and have transcripts prepared. Friends did not pursue available opportunities to cross examine the Applicant’s experts. Further, the Tribunal did not hear any submissions to indicate the lack of cross examination of the Applicant’s experts could be attributed to anything other than Friends not pursuing available opportunities.

62The Tribunal finds that the Issues List contains authentic land use planning issues worthy of adjudication. During the course of the Motion to Dismiss, Friends assured the Tribunal that it intends to call expert opinion evidence in support of each of the planning issues that it has raised on the Issues List.

63Friends referenced detailed letters that were submitted with the Notices of Appeal asserting that the OPA and ZBA do not have regard for matters of Provincial interest and are inconsistent and/or not in conformity with specific policies in the PPS, Growth Plan, Region OP and VOP. In support of its position on the Appeals, Friends retained various experts who further opined that there are sufficient grounds raised in the Notices of Appeal.

64Based on the issues raised in the Notices of Appeal, the Tribunal finds that there are authentic land use planning issues capable of adjudication upon which evidence will be called. Numerous Tribunal and Board decisions have found that an Appellant need not establish in its response to a Motion to Dismiss that the Appeals will succeed, but rather they must establish that there are planning grounds worthy of adjudication. The Tribunal is satisfied that Friends have met this test.

65The Tribunal acknowledges that the success of an appeal on a Motion to Dismiss does not come down to the retention of experts by an appellant, however, the Tribunal was guided by the decision in Earls Road which found that the retention of experts in support of a position and whose opinions will be relied upon at a merit hearing are one indication that Appeals have a reasonable prospect of success. In this case, Friends has retained a number of experts in various fields to demonstrate to this Tribunal that there are grounds raised in the Notices of Appeal which are genuine and worthy of adjudication.

66The Tribunal notes that inconsistencies in the evidence of the experts does not necessarily lead to the conclusion that the Appeals will not succeed. Any alleged inconsistencies can be tested at a merit hearing and the appropriate weight can be given to those opinions by the presiding Member.

67In deciding that the high threshold set out in s. 17(45)(1)(i) and s. 34(25)(1)(i) of the Act has not been met to dismiss Friends’ Appeals, the Tribunal denies the Motion to Dismiss. The test on a Motion to Dismiss is disjunctive and as such, it is not necessary for the Tribunal to continue the analysis, however, it will provide brief comments on the Applicant’s submissions regarding the Plan of Subdivision and Conditions. The Tribunal agrees with the Applicant that in allowing the Appeals to proceed, the Plan of Subdivision and Conditions do not form part of the Appeals and are not within the jurisdiction of the Tribunal in considering the Appeals.

68The Tribunal would encourage the Applicant, City and Friends to work together to further refine and scope the issues on the Issues List. The Tribunal directs that a final draft Procedural Order and Issues List be submitted to the Case Coordinator for review and approval within forty-five (45) days of the issuance of this Decision. At that time, a request can be made for hearing dates. In the event agreement on the Issues List cannot be reached, a further Case Management Conference can be requested. In the event a further Case Management Conference is required, two (2) weeks prior to the Case Management Conference each Party shall provide written submissions as to their respective position on each issue that is in contention in order to assist the Tribunal in effectively determining the Issues List.

Hatem Abou El-Nile Appeal

69The Motion to Dismiss is allowed with respect to the Hatem Abou El-Nile Appeals.

70The Tribunal agrees with the Applicant’s submission that Mr. El-Nile’s Notices of Appeal made allegations and suggestions on studies that could be completed but do not contain any land use planning issues that would assist the Tribunal in arriving at a decision on the merits in this proceeding. Mr. El-Nile does not raise any specific policies nor any land use planning issues that are worthy of the adjudicative process.

71Mr. El-Nile’s Appeals raise mental health impacts relating to the loss of openness and green space which will result if the Proposed Development is permitted to proceed. The Tribunal was persuaded by the Applicant’s argument that the VOP does not require the submission of mental health studies or assessments as part of a development application. Further, references in the Act and provincial policies relating to the protection of public health and safety are not intended to extend to mental health impacts. In his submissions, Mr. El-Nile acknowledged that mental health is not a planning matter but is a concept that he is trying to introduce into the process. The Tribunal acknowledges the importance of mental health and lauds Mr. El-Nile in his efforts. However, the Tribunal is bound by statute and finds that there are no planning grounds on which to allow Mr. El-Nile’s Appeals to proceed.

72The Tribunal agrees with the Applicant that the Act prescribes what planning authorities can require as part of an OPA or ZBA application and health impact studies are not included. Mr. El-Nile’s Appeals have no reasonable prospect of success on this ground alone.

73The Responding Motion materials of Mr. El-Nile are not of assistance to the Tribunal in determining whether the Appeals should proceed to a merit hearing and the Tribunal agrees with the Applicant that Mr. El-Nile’s Responding Motion materials do not satisfy Rule 10.6 of the Tribunal’s Rules of Practice and Procedure (“Rules”). Rule 10.6 mandates that an affidavit be included in the Notice of Response to Motion materials. The Rules define “affidavit” in Rule 1.2 as “…a written statement made under oath or affirmation…”. Mr. El-Nile’s Responding Motion materials included a document titled “Affidavit of Robert Gifford”, however it was not sworn nor affirmed.

74The Tribunal acknowledges that Mr. El-Nile was not familiar with the process and commended him on his efforts to ensure compliance with relevant legislation and the Rules. However, his Appeals failed to provide required explanations or reasons to support how the OPA or ZBA do not conform to the VOP and are inconsistent with the PPS and other provincial policies. Further, Mr. El-Nile’s Responding Motion materials did not satisfy the Rules mandating the inclusion of a sworn or affirmed Affidavit in support of his position. The language in the Act and the Rules is mandatory, the Appeal must (emphasis added) explain inconsistencies or non-conformities and the motion material shall (emphasis added) include an affidavit. The Tribunal is sympathetic to the challenges faced by self-represented parties in complying with the requirements of the Act and the Rules and will afford some latitude where possible. The Tribunal has no discretion to excuse parties from compliance with statutory requirements set out in the Act and the Motion to Dismiss Mr. El-Nile’s Appeals must be allowed.

ORDER

75UPON MOTION to this Tribunal by Clubhouse Developments Inc. for an Order dismissing the Appeals pursuant to subsections 17(45) and 34(25) of the Planning Act and subsection 19(1)(c) of the Ontario Land Tribunal Act, and after the hearing of the motion,

76THE TRIBUNAL ORDERS that the motion to dismiss the Appeals by Friends to Keep Vaughan Green is denied.

77THE TRIBUNAL ORDERS that the motion to dismiss the Appeals of Hatem Abou El-Nile is granted and the Appeals of Hatem Abou El-Nile are dismissed.

“C. Hardy”

C. Hardy

MEMBER

“K. Smith”

K. Smith

MEMBER

Ontario Land Tribunal

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

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