Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 25, 2023
CASE NO(S).: OLT-22-004141
PROCEEDING COMMENCED UNDER section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant: David Ellison
Applicant: Hanseatic Holdings Limited
Subject: Proposed Official Plan Amendment
Description: To permit a 25 storey rental apartment building.
Reference Number: OPA 127 W4 (OZ 19/016 W4)
Property Address: 600 - 620 Lolita Gardens
Municipality/UT: Mississauga/Peel
OLT Case No: OLT-22-004141
OLT Lead Case No: OLT-22-004141
OLT Case Name: Ellison v. Mississauga (City)
PROCEEDING COMMENCED UNDER subsection 19.1 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6.
Motion By: Hanseatic Holdings Limited
Purpose of Motion: Request for an Order Dismissing the Appeal
Heard: October 26, 2022 by video hearing
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Hanseatic Holdings Limited | Cynthia MacDougall and Matthew Schuman* |
| David Ellison | Self-represented |
MEMORANDUM OF ORAL DECISION DELIVERED BY M.A. SILLS ON OCTOBER 26, 2022 AND ORDER OF THE TRIBUNAL
1Hanseatic Holdings Limited (the “Applicant”/“Moving Party”) has brought a motion seeking an Order dismissing the appeal by David Ellison (the “Appellant/Respondent”), and any such other or further relief as counsel may request and the Tribunal considers appropriate.
2The grounds for the motion are that;
- the Notice of Appeal does not contain any reasons which disclose any apparent land use planning ground upon which the Tribunal could approve all or part of the appeal.
- the appeal is frivolous and vexatious.
3The materials before the Tribunal on the Motion included:
- Motion Record of the Moving Party, which included the Affidavit of Lindsay Dale-Harris and the exhibits thereto, sworn on October 5, 2022; the Affidavit of Juliana Tyndorf and exhibits attached thereto, sworn October 5, 2022; Contents of the Tribunal’s file with respect to the within matter; and such other documentation as counsel may advise and the Tribunal may permit.
- Response to the Motion by the Appellant.
Background to the Applications
4The Applicant owns the vacant lands municipally known as 600-620 Lolita Gardens in the City of Mississauga (the “Subject Lands”). The Subject Lands comprise an area of approximately 6.5 acres and are identified on Map 16-19 of the City of Mississauga’s Official Plan as being within the Mississauga Valleys Neighbourhood Character Area.
5On August 1, 2019, the Applicant filed applications for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) with the City of Mississauga (the “City”) to permit the infill development and intensification of the Subject Lands. The development proposal consists of a 25-storey purpose-built residential rental building with an underground connection to the existing 17 and 21-storey rental apartments buildings which are to remain (“Proposed Development”).
6The Proposed Development was considered by City staff and the public as a part of a detailed review and public consultation process which included three community consultation meetings and the statutory public meeting required by the Planning Act, with a second public meeting being held on September 29, 2021.
7City Council adopted the recommendations of the Planning and Development Committee at its meeting on September 29, 2021, effectively approving the applications to permit the proposed development in principle. The implementing by-laws, By-law 0121-2022 adopting the Official Plan Amendment 27 (“OPA 27”) and By-law 0122-2022 to enact the required zoning by-law amendments (“ZBAs”), were passed by City Council at its meeting on June 8, 2022.
8OPA 27 amends the City of Mississauga Official Plan (“MOP”) by increasing the floor space index permitted within the Subject Lands on Map 16-19: Mississauga Valleys Neighbourhood Character Area.
9The ZBA amends the zoning of the Subject Lands from “RA5-3” (Apartments - Exception) to “RA5-58” (“Apartments – Exception”) to permit a 25-storey, 78.5 metres (“m”) in height, 270-unit apartment building with a maximum floor space index of 2.3 in addition to the existing 17 and 21 storey apartments buildings on the Subject Lands, and to allow a reduction in standard parking spaces.
10The Appellant appealed the adoption of OPA 27, but not the passing of the implementing ZBA.
Submissions by the Moving Party
11The Moving party submits that the Notice of Appeal does not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal. The single reason to support the appeal set out in the cover letter provided with the Notice of Appeal states in part: “My fundamental concern is that it appears some council members and the planning department are choosing to ignore Section 16.1.2.4 of MOPA (Mississauga Official Plan).”
12Section 16.1.2.4 of the Mississauga Official Plan (“MOP”), states that: “Proposals for additional development on lands with existing apartment buildings will recognize and provide appropriate transition to adjacent low density residential uses.” [emphasis added]
13In regard to the height of the Proposed Development, the Notice of Appeal indicates that: “This is all we are asking for, that Section 12.1.2.4 (sic) be followed and that the new building be something lower than 38 m, to provide that transition, and not the proposed 78 m monster tower”.
14The Moving Party submits that neither s. 12.1.2.4 nor s. 16.1.2.4 is relevant with respect to OPA 127 or the Proposed Development as there are no low density uses adjacent to the Subject Lands, as is identified in the affidavit of Lindsay Dale-Harris.
15Furthermore, the Notice of Appeal effectively raises height as the only issue “to provide that transition”. The City’s Zoning By-law permitted a maximum building height of 25 storeys and 77 metres (“m”) prior to the passing of ZBA 0122, whereas ZBA 0122 provides for a maximum height of 78.5 m and 25 storeys. In this case the increase in height being proposed is only 1.5 m above the as-of-right zoning standard, and there is no increase to the number of storeys that is currently allowed.
16In effect, the Notice of Appeal relates only to OPA 127, which only amends the floor space index (density) provisions on Map 16 – 19; specifically, OPA 127 does not address height.
17Moreover, in the course of his oral submissions to the Planning and Development Committee meeting held on September 21, 2021, the Appellant acknowledged that the proposed increase in floor space is “acceptable to the community”, as is identified in the affidavit of Juliana Tyndorf.
18The Affidavit of Lyndsay Dale-Harris confirms her professional opinion that the increase in floor space permitted by OPA 127 represents good planning and is necessary and appropriate to facilitate the intensification of an underutilized site that is well served by existing infrastructure, including public transit, is consistent with the Provincial Policy Statement and in conformity with the Growth Plan.
Submissions by the Respondent
19The Respondent, who has resided on Lolita Gardens for 30 years, identified himself as being the representative of “all 504 residents who signed a petition against this development, to protect the character of our neighbourhood” and “to protect our already overburdened local street with parking issues and traffic congestion”. The Appeal Form identifies only that OPA 127 violates s. 16.1.2.4 of the MOPA.
20In response to the submissions by the Moving Party regarding the grounds for the appeal cited in the Appeal Form, the Respondent indicated that although he appealed to the Tribunal on the basis of a single section of the MOPA (s. 16.1.2.4), he now intends to add an additional 5 policy sections to the appeal, which in his view the Development Proposal does not adhere to and to which both the developer and the City choose to ignore and were ultimately approved.
21The Respondent is maintaining that the development of a 78.5 m in height structure, which is “63.5%” (sic) taller than the existing built form, does not fit the character of the neighbourhood nor its capacity to handle more traffic and more parking. It is his contention that he has provided enough evidence in his Motion Response materials to allow the OLT to deny the Motion to Dismiss and allow his appeal to continue; “to be heard and ultimately ruled upon by the OLT”.
Disposition
22The Tribunal’s jurisdiction to dismiss an appeal without a hearing is established in s. 17(45) of the Planning Act:
Dismissal without hearing
(45) Despite the Statutory Powers Procedure Act 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:
- 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.
23Similarly, s. 4.6. (1) of the Statutory Powers Procedure Act, with heading Dismissal of proceeding without hearing, establishes that the Tribunal may, on its own initiative, dismiss an appeal without holding a hearing if some aspect of the statutory requirement for bringing the proceeding has not been met.
24Section 19(1) of the Ontario Land Tribunal Act (“OLTA”) provides the authority for the Tribunal to dismiss an appeal without a hearing “(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.”
25In this case, having reviewed the materials provided and considered the written and oral submissions of the Moving Party and the Respondent, the Tribunal has determined that there is no reasonable probability that the appeal will meet with a successful outcome.
26The Tribunal first clarified that contrary to the assertion by the Respondent that he is the representative of neighbourhood residents who signed a petition, in fact he alone is the sole appellant, and he represents only himself. A group of individuals, either individually or identifying as a group, such as a neighbourhood association, etc. must be incorporated in order to obtain party status in a proceeding before the Tribunal.
27On a second point, the deadline for the filing of an appeal is mandated by the Planning Act and is outside of the jurisdiction of the Tribunal. In this case, the deadline for filing an appeal is well passed and the Appellant has no ability to now amend or otherwise perfect the Appeal Form, that is, to amend or to otherwise enhance the Appeal Form.
28The Tribunal acknowledges that the Appellant is inexperienced in land use planning matters and is not necessarily familiar with the hearing process. The Tribunal also has no doubt that the Appellant’s concerns are genuinely held. However, in bringing the appeal, the Appellant is expected to bring an evidentiary case to support his appeal. Unlike making a presentation(s) at the statutory public meeting(s), as a party to an appeal, and particularly in this case as the appellant party, Mr. Ellison would be expected to tender expert land use planning and traffic and transportation engineering evidence at the hearing to support his issues and concerns. However, he has indicated that he intends to represent himself at the hearing, and to this point, he has not retained a land use planner and/or traffic and transportation expert.
29In any event, if the appeal is allowed to be advanced the Applicant (and possibly the City) will be required to defend the development proposal, and in doing so, will be made to suffer unnecessary costs and delay.
30Lastly, it is apparent from the Appeal Form, the Appellant’s Response to the Motion and his oral submissions that the proposed height of the Development Proposal is the focus of the appeal. However, the height of the Proposed Development is approved by the ZBA and the Appellant has not appealed that instrument. Ultimately the outcome being sought by the Appellant is not achievable, and therefore, the appeal is frivolous in nature. In other words, the Appellant has appealed the wrong instrument.
31The Tribunal Orders that the appeal is dismissed.
“M. A. Sills”
M.A. SILLS
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.