Comeau v. Ottawa (City), 2023 CanLII 53853

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 16, 2023

CASE NO(S).: OLT-22-004138

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

Appellant: Philip Comeau

Applicant: MJ Asset Management

Subject: Zoning By-law

Description: To permit al permit a four-storey residential building.

Reference Number: BL 2022-174

Property Address: 700 Coronation Avenue

Municipality/UT: Ottawa/Ottawa

OLT Case No: OLT-22-004138

OLT Lead Case No: OLT-22-004138

OLT Case Name: Comeau v. Ottawa (City)

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

Motion By: MJ Asset Management

Purpose of Motion: Request for an Order Dismissing the Appeal

Heard: December 2, 2022 by video hearing

APPEARANCES:

Parties

Counsel

City of Ottawa

Garett Schromm

Philip Comeau

Adam Strombergsson-DeNora

Karifa Magassouba

DECISION DELIVERED BY M.A. SILLS AND ORDER OF THE TRIBUNAL

1The City of Ottawa (“City” / “Moving Party”) has brought a Motion seeking an Order of the Tribunal dismissing an appeal by Phillip Comeau (“Respondent” / “Appellant”) of the passing of Zoning By-law Amendment No. 2022-174 (“ZBA 2022-174”), pursuant to s. 34(25) of the Planning Act (the “Act”).

2The grounds for the Motion are that the reasons set out in the Notice of Appeal (“Notice”) do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal.

Background and Context

3The land parcel municipally known as 700 Coronation Avenue (the “subject property” / “Site”) is an irregularly shaped lot approximately 3.411 square metres (“sq m”) in area with 56 metres (“m”) of frontage onto Coronation Avenue. The eastern portion of the subject property is currently developed with a 30-unit residential apartment building and an associated surface level parking lot with 45 automobile parking spaces and 34 bicycle spaces.

4The purpose and effect of ZBA 2022-174 is to amend Zoning By-law No. 2008-250 to allow the construction of a four-storey, 35-unit residential building containing a mix of studio, one and two bedroom units on the western portion of the Site. ZBA 2022-174 rezones the subject property from Residential Fourth Density Subzone 1 N (“R4N) to Residential Fourth Density Subzone N Urban Exception 2782 (R4N [2782]), in the City of Ottawa Comprehensive Zoning By-law.

5The Report from the Acting Director, Planning Services, Planning, Real Estate and Economic Development Department dated April 28, 2022, concluded that the proposed Zoning By-law Amendment is consistent with the Provincial Policy Statement (“PPS”), the current Official Plan policies of the General Urban Area designation, the new Official Plan policies of the Outer Urban Transect and Neighbourhood designation, and the Alta Vista/Faircrest Heights/Riverview PRK Secondary Plan. The proposed residential use is appropriate for the site and the amendment represents good planning. On this basis, staff recommend approval of ZBA 2022-174.

6The Appellant, who owns the property located at 690 Coronation Avenue, appealed the passing of ZBA 2022-174. The Appeal Form (A1) listed the following as reasons/grounds for the appeal:

The basis of my appeal rest upon how the decisions by the City of Ottawa Council to adopt By-law 2022-174 is in conflict with its own Official Plan (2021) and its own By-law (e.g. the Tree Protection By-law, By-law No. 2020-340”, and

The grounds for my appeal are based on the many ways the adoption of By-law 2022-174 fails to conform to the Official Plan of the City of Ottawa and the Secondary Plan for the neighbourhood of the subject property.

7The materials before the Tribunal on the motion are:

1. Affidavit of Service of the Motion Record (Exhibit 1); Notice of Motion inclusive of the Affidavit of Katelyn Turk with exhibits sworn November 4, 2022; excerpt of Rule 10 of the Ontario Land Tribunal Rules of Practice and Procedure; and the authority to be relied upon (Lavoie-Schaeffer v. Clarence-Rockland (City), 2021 CanLII 17382 (ON LPAT) (“Lavoie-Schaeffer v. Clarence-Rockland”) (Exhibit 2).

2. Notice of Response to the Motion; Affidavit of Philip Comeau sworn November 24, 2022; and authorities to be relied upon (Exhibit 3).

Submissions by the Moving Party

8The grounds for the Motion are that the reasons set out in the Notice of Appeal (“Notice”) do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal. In that regard, the Appellant intends to argue a matter referred to in s. 34(19.0.1) of the Act but has not provided the necessary explanations in the Notice.

9Section 34(19.0.1) of the Act states that: If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under s. 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 by-law is inconsistent with, fails to confirm with or conflicts with the other document.

10In this case, the Notice states that ZBA 2022-174 fails to conform with the City’s Official Plan (“OP”) and the “Secondary Plan for the neighbourhood of the subject property” for “many reasons”. The Moving Party submits that the Appellant has not provided written reasons for the appeal as required by s. 34(25) 2. of the Act. The Notice does not indicate that ZBA 2022-174 is inconsistent with the PPS.

11The Notice of the passing of ZBA 2022-174 by Council was provided on June 17, 2022. In accordance with s. 34(19) of the Act, the appeal period expired on July 7, 2022. On August 20, 2022, counsel to the Appellant provided an email further detailing and enhancing the reasons for the appeal. In that same correspondence, counsel to the Appellant concedes that the details contained in the August 20 correspondence were not provided in the Notice.

12The Moving Party asserts that general allegations of non-conformity do not, on their own, constitute land use planning grounds. Rather, the language in s. 34(19.0.1) of the Act is mandatory; if the Appellant intends to argue non-conformity with the OP, the Notice must also include an explanation of how the by-law is inconsistent with, fails to conform with, or conflicts with the other document. [emphasis added]

13Counsel further submits that this Tribunal has previously found that it does not have discretion to allow an appellant to remedy deficiencies in the Notice after the expiry of the statutory appeal period [Lavoie-Schaeffer v. Clarence-Rockland].

14The City, in adopting and relying on the affidavit evidence and opinions of land use planner Katelyn Turk, further submits that ZBA 2022-174 is consistent with the PPS, has regard for matters of provincial interest, is in conformity with the OP, and represents good land use planning.

Response to the Motion

15The Respondent asserts this motion is about access to justice. In that regard, the question before the Tribunal relates to the manner in which appeals are heard, and the precedent set by this decision will influence the ability of others to have their appeals heard.

16The Appellant contends that all statutes in Ontario are presumed to be remedial legislation (Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64). The Tribunal’s purpose is to provide a forum for individuals to air legitimate grievances related to planning decisions. The Tribunal’s purpose is frustrated if it declines to hear appeals on narrow technical grounds.

17Citing s. 34(25) of the Act, the Appellant maintains that the Tribunal has the discretion to relieve the Appellant from the strict obligation to provide the required explanation in the Notice. A plain reading of s. 34(25) grants discretion, which must be exercised reasonably and with a view to the particular facts of each case. The proper exercise of discretion may be analogized to a court’s exercise of discretion when presented with an application to extend a time limit. The argument made by the City frames the issue as a categorical one, which deprives the Tribunal of its statutory discretion. The City’s argument is not consistent with the presumption that legislation is remedial.

18The Appellant submits that it is general practice for Canadian Courts and Tribunals to use their discretion to provide time-extensions, provided that: “(i) a delay is incurred in good faith, and (ii) no substantial prejudice will result to any person affected by the delay”. It is a legal standard that is grounded in the notion of procedural fairness and reflects the reasonable use of broad discretionary powers by the Courts to offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.

19Alternatively, the Appellant is proposing that the Tribunal consider five (5) questions that will allow the Tribunal to paint a full picture of the circumstances under which the Appellant failed to respect the procedural and substantive requirements set down in the Act: 1) was there a consistent intention to appeal to the Tribunal; 2) do the Appellant’s submissions, as amended or supplemented, disclose plausible grounds for appeal; 3) are there particular circumstances that justify the Applicant’s (sic) failure to respect the statutory timeframe and requirements; 4) is the delay excessive; and 5) does the delay prejudice the responding parties?

20The Tribunal could weigh the response to these questions in determining whether, on the whole, the Appellant has bona fide grounds for the appeal, and such that the responding parties’ cases are not prejudiced by the procedural irregularities. The Appellant submits that this test provides greater certainty to the Tribunal and litigants in the exercise of the Tribunal’s statutory discretion.

21In this case, 1) the Appellant had a consistent intention to appeal and he engaged legal counsel to assist him with the appeal; 2) the Appellant supplemented his appeal, and the supplemented appeal discloses plausible grounds for appeal; 3) the Appellant is not a lawyer and ought not to be expected to know the procedures of the Ontario Land Tribunal, nor should he be expected to perfectly abide by the rules; 4) the delay is not excessive as the Appellant provided fulsome reasons well in advance of the hearing date and provided notice to the Parties of his intention to supplement his reasons; and, 5) the responding parties are not prejudiced because they have the opportunity to make full reply to the supplemented grounds for the appeal.

22The Appellant argues that the Tribunal’s decision in Lavoie-Schaeffer v. Clarence-Rockland is distinguishable from the present case. The Appellant in that case did not supplement her appeal before the hearing, but rather, only sought to supplement the appeal at the hearing. In the present case, the Appellant supplemented his appeal with ample grounds on his own initiative well before the hearing.

23Moreover, the Tribunal’s Decision, in that case, does not stand for the proposition that the Tribunal is bound to always exercise its discretion against an appellant. The Tribunal, in that instance, dismissed the case without commenting on its ability to exercise discretion. Instead, the Tribunal’s commentary goes to the strict reading of the Act requirements for a Notice and does not address the discretion accorded to it by the legislator’s use of the word ‘may’ when qualifying the Tribunal’s power to dismiss a proceeding without a hearing. The Appellant maintains that the Tribunal does have the authority to allow an appeal to proceed on the merits despite deficiencies in the initial notice of appeal.

24The Appellant is requesting that the Tribunal dismiss the motion and allow the appeal to proceed to a hearing on the merits.

Analysis and Disposition

25The Tribunal has considered the arguments of counsel and examined the file materials including the Notice and given due regard and consideration to the submissions and arguments of counsel. The Tribunal has reviewed the case authorities provided by the Appellant but did not find them helpful or relevant to this Motion.

26The Tribunal’s jurisdiction to dismiss an appeal without holding a hearing is provided for in s. 34(25) of the Act, as follows:

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:

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 or part of the appeal

3. The appellant intends to argue a matter mentioned in subsection (19.01.1) but has not provided the explanations required by that subsection.

27Section 34(19.0.1) of the Act states that:

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…, the notice of the appeal must also explain how the decision is inconsistent with, fails to conform with or conflicts with the other document [emphasis added by the Tribunal].

28Section 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c.4 Sched. 6 provides the authority for the Tribunal to dismiss an appeal without a hearing if it is of the opinion that the proceeding has “no reasonable prospect of success”.

29In the present case, the Tribunal finds that the Appellant has failed to meet the statutory requirements set out in s. 34(25)3 and s. 34(19.0.1) of the Act. In that regard, the Notice does explain how the decision to approve ZBA 2022-174 does not conform to the OP.

30Counsel to the Appellant maintains the Tribunal does have the discretion to overlook the discrepancies and allow the Appellant to supplement the Notice. The Tribunal does not agree.

31It is not disputed that the Notice does not explain how the decision is inconsistent, fails to conform with or conflicts with the OP. Likewise, it is not disputed that the appeal period expired on July 7, 2022. The appeal period and the requirements of the Notice detailed in s. 34(19.0.1) are stipulated in the Act and are not discretionary. The Act is a statutory planning policy document approved by the Legislature and the Tribunal’s authority is limited to only those express powers granted to it under the Act. There is a long line of Tribunal decisions in which it has been determined that the Tribunal does not have the discretionary power to waive compliance with the statutory requirements of the Act. Accordingly, the Tribunal finds that it does not have the ability or authority to extend the Notice period or to permit the Appellant to enhance the reasons for the appeal after the expiry of the appeal period. In the circumstances, the Tribunal finds there is no reasonable prospect that the appeal will be successful.

32Accordingly, the motion is granted and the appeal by Phillip Comeau is dismissed.

33The Parties shall bear their own costs of the motion.

34The Tribunal so Orders.

“M.A. Sills”

M. A. SILLS

VICE-CHAIR

Ontario Land Tribunal

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

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