Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 14, 2023

CASE NO(S).: OLT-22-004366

PROCEEDING COMMENCED UNDER subsection 42(4.9) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Building Industry Land Development Association

Appellant: Dunpar Homes

Appellant: GWL Reality Advisors Inc.

Appellant: Mississauga I GP Inc., Mississauga II GP Inc., Mississauga IIII GP Inc. and others

Subject: Parkland Conveyance By-law 0137-2022

Reference Number: By-law 0137-2022

Property Address: (City-wide)

Municipality/UT: Mississauga/Peel

OLT Case No.: OLT-22-004366

OLT Lead Case No.: OLT-22-004366

OLT Case Name: Dunpar Homes et al v Mississauga (City)

Heard: April 11, 2022 by Video Conference

APPEARANCES:

Parties	Counsel
City of Mississauga	Raj Kehar, Michael Minkowski
Building and Land Development Association	Robert Howe
Sheridan Retail o/a Dunpar Homes	Luke Johnston, Michael Nemanic, Giouzelin Mutlu
GWL Realty Advisors Inc.	Adrian Frank, Jason Park (in absentia)
Oxford Properties Group	Max Laskin
Mississauga I GP Inc., Mississauga II GP Inc.; Mississauga III GP Inc.	Max Laskin, David Bronskill (in absentia)
RGF (Mississauga) Developments Inc.	Paul DeMelo

DECISION DELIVERED BY W. DANIEL BEST AND BRYAN W. TUCKEY AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened the first Case Management Conference (“CMC”) for the above matter. A total of six appeals were filed against the decision of the City of Mississauga (“City”) to adopt the Parkland Conveyance By-law No. 0137-2022 (“By-law”).

2The By-law, passed on June 22 2022, was made pursuant to the then requirements of the City’s Council approved Parks Plan and pursuant to s. 42(4.9) of the Planning Act R.S.O. 1990, c. P.13 (“Act”). The City issued a Notice of the Passing of the By-law on July 7, 2022.

3The Tribunal gave notice on March 14, 2023. No further notice is required.

4Prior to the CMC the Tribunal received a Notice of Motion brought by the City. The Notice of Motion was received by the Tribunal on March 27, 2023.

5The City was seeking an Order dismissing the appeal of Dunpar Homes on behalf of Sheridan Retail Inc. and/or 1386072 Ontario Inc. (“Dunpar”), without a hearing, in accordance with s. 42(4.17) of the Act because the appeal as filed has not met the statutory grounds for a valid appeal.

6There are no requests for Party status or Participant status at this proceeding.

BACKGROUND

7Mr. Kehar, Counsel for the City advised the Tribunal that there have been positive discussions with most of the Appellants. He stated that any conclusions that result from the ongoing discussions will likely require Council endorsement.

8Mr. Kehar was seeking a second CMC this fall, and an adjournment for a Hearing of the Motion at that time. He also requested a five day hearing be set.

9Mr. Johnston, Counsel for Dunpar requested that the Motion be heard at this CMC in accordance with Rules 17(1) and 17(4) of the Ontario Land Tribunal, Rules of Practice and Procedure.- Adjournments.

10Mr. Johnston stated that Dunpar will suffer prejudice and costs without knowing if their Party status will remain.

11The Tribunal directed that a second CMC is set for Tuesday, October 10, 2023 at 10:00 a.m.

12Further, the Parties are to submit their Issues List to the City no later than Wednesday, August 23, 2023 for a scoped Issues List and draft Procedural Order (“PO”) submitted to the Tribunal in advance of the CMC.

13The Tribunal is not inclined to schedule a Merits Hearing at this CMC.

HEARING OF THE MOTION

14As the Hearing of the Motion is contested, the Tribunal determined it was satisfied to proceed with the Hearing of the Motion at this CMC.

15The following materials were identified as Exhibits in respect of this Motion:

No. 1A – Motion Record of the City sworn on March 22, 2023

No. 1B – Book of Authorities for the City

No. 2 – Email Service Confirmation of Alyssa Clutterbuck dated on March 27, 2023

No. 3A – Dunpar Motion of Record dated April 3, 2023

No. 3B – Book of Authorities for Dunpar

No. 4 – Reply Motion of Record for the City dated April 5, 2023

SUBMISSION OF THE CITY

16Mr. Kehar advised the Tribunal that Dunpar provided its Notice of Appeal (“Notice”) to the City by the statutory deadline of August 2, 2023, however, the Dunpar Notice was fatally deficient because it did not provide an objection to the by-law and the reasons supporting the objection. The Dunpar Notice was therefore not valid because it has not met the statutory requirements for a notice of appeal pursuant to s. 42(4.9) of the Act.

17The Tribunal was informed that in the five other notices of appeal filed by the other parties to this proceeding, each appellant makes clear that it is appealing pursuant to s. 42(4.9) of the Act and each letter provides an objection and reason for the objection that relate to the Parkland Conveyance By-Law.

18Mr. Kehar stated that the Dunpar Notice Letter (“Letter”) appears to be an appeal under s. 37(17) of the Act. Subsection 37(17) of the Act which deals with community benefits charge by-laws, which are irrelevant to a Parkland Conveyance by-law appeal. In doing so, Dunpar has failed to properly set out an objection to the By-law and its reasons in support of the objection. Therefore, Dunpar has not met the statutory requirement for filing a valid appeal.

19The Tribunal was advised in the City’s submission, that the Dunpar Appeal Form (A1) by simply checking a box indicating that it has filed an appeal of a Parkland Conveyance By-law, does not satisfy the statutory requirements for filing an appeal under s. 42(4.9) of the Act.

20Mr. Kehar stated that the Dunpar appeal is not genuine and raises no real objection to the By-law. A Notice of Appeal cannot serve as a placeholder to challenge a municipal by-law or amendment to a planning instrument. It must raise matters that are justifiable issues to be considered by the Tribunal.

21Mr. Kehar submitted that s. 42(4.13) provides that the Tribunal shall hold a hearing to deal with any notice of appeal of a By-law passed under s. 42. However, this is subject to s. 42(4.17) which states as follows:

Dismissal without hearing

(4.17) Despite subsection (4.13), the Tribunal may, where it is of the opinion that the objection to the by-law set out in the notice of appeal is insufficient, dismiss the appeal without holding a full hearing after notifying the appellant and giving the appellant an opportunity to make representations as to the merits of the appeal.

22The position of the City is that a failure to meet these statutory requirements in a notice of appeal is grounds for dismissal by operation of law. Dunpar’s Notice is insufficient and lacking in setting out any grounds related to the Parkland Conveyance By-law.

23Mr. Kehar stated that any representations that the appellant may seek to make pursuant to s. 42(4.17) of the Act must relate to the reasons they have already provided in the Notice. It is not an opportunity to provide new objections or new reasons in support of the objections as doing so would be tantamount to making a new appeal after the statutory appeal deadline has passed.

24Mr. Kehar stated the Tribunal has no jurisdiction to allow an appeal to be made after the expiry of the appeal period under the Planning Act. He cites Lancia v. Vaughan (City), 2020 CarswellOnt 8725 at para. 4; Scott v. Clarence-Rockland (City), 2022 CarswellOnt 16666 at para. 34.

25Mr. Kehar submits that the Tribunal does not have jurisdiction to hear an appeal that was originally filed within the regulatory appeal period, but then is amended in response to concerns about the original notice failing to disclose sufficient grounds for the appeal. He cites Patry v. Kingston (City), 2019 CarswellOnt 2478 at paras. 75-77.

26Mr. Kehar, drawing upon the Tribunal’s jurisprudence on dismissal without a hearing of other appeals (see e.g., s. 17(45) and 34(25)) states that the Tribunal has the jurisdiction to dismiss an appeal without a hearing if it determines that 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.

27The City’s position is that the Dunpar Notice is not only lacking in genuine, legitimate and authentic reasons, it is entirely barren of any reasons as to why Dunpar Homes has appealed the Parkland Conveyance By-law. Mr. Kehar cites Toronto (City) v. East Beachside Community Association, 1996 CarswellOnt 5740, as the leading authority on motions to dismiss.

28Mr. Kehar submits that as an administrative tribunal, the Tribunal does not have inherent jurisdiction to consider an appeal that fails to meet the statutory requirements. The Tribunal only has the power given to it specifically by statute. He cites Clark v. Oshawa (City), 2022 CarswellOnt 3473 at para. 37; Graff v. 1960 Queen Street East Limited, 2017 ONSC 629 (Div. Ct) cited in 2684360 Ontario Ltd. v. Kingston (City), 2021 CarswellOnt 2726 at paras. 33-34.

SUBMISSION OF DUNPAR

29In Dunpar’s Notice of Response to the Motion, it is requested that the Tribunal dismiss the City’s motion.

30The position of Dunpar is that the authors of the related Parkland Conveyance By-law Summary Report essentially concluded that the existing quantum of the Alternative Rate of Dedication or Payment of Cash-in-Lieu required under Parkland Conveyance By-law No. 0400-2006 and Parkland Conveyance By-law No. 0166-2007 (the “Old Parkland By-laws”) as a condition of development or redevelopment should be increased because it did not appropriately reflect the amount payable under s. 42(3) and s. 42(6.0.1) of the Act.

31On June 22, 2022, Mississauga City Council repealed the Old Parkland By-laws and adopted Parkland By-law Conveyance By-law No. 0137-2022 (“Bylaw”).

32On August 2, 2022 Dunpar appealed the City’s adoption of the By-law pursuant to subsection 42(4.9) of the Act and electronically and physically served its Notice of Appeal on the City’s Clerks Department, within the statutorily prescribed timeframe.

33Mr. Johnston stated the electronically served copy of Dunpar’s Notice of Appeal inadvertently included an earlier draft of the Appeal Letter (“Letter”). This earlier draft of the Appeal Letter cited reasons in support of its objection to the City’s adoption of the Parkland By-law, as well as well as grounds of appeal in support of its appeal of the City’s adoption of its Community Benefits Charges By-law No. 0134-2022.

34Mr. Johnston advised the hard copy served of Dunpar’s Notice of Appeal correctly included the final draft of the Appeal Letter . He stated that in reviewing the City’s Notice of Motion and Motion Record, it is apparent that the City is unaware that the hard copy Notice of Appeal and hard copy letter exists.

35The Tribunal was advised that on March 27, 2023, and without providing Dunpar with advance notice of its motion, the City served a Notice of Motion and Motion Record requesting that the Tribunal dismiss Dunpar’s appeal of the City’s adoption of the By-law without a hearing.

36Mr. Johnston stated that contrary to the position of the City, there are clearly two reasons in Dunpar’s Appeal Letter(s) that are in support of its objection to the City’s adoption of the By-law:

a. The By-law does not conform to the applicable policies of a Place to Grow: Growth Plan for the Greater Golden Horseshoe (the “Growth Plan”) because the excessive charges imposed upon development will discourage the optimal and affordable intensification, including the decision of the City to impose the maximum possible charge possible.

b. The By-law is inconsistent and is not in conformity with the applicable policies of the Provincial Policy Statement, 2020 and the Regional Official Plan, as the case may be.

37Mr. Johnston submits that the grounds of appeal in the Notices raise triable planning-related issues that are authentic, valid, genuine and worthy of adjudication. He stated that since the grounds of appeal were satisfied, the Tribunal should dismiss the City’s Motion for the following reasons:

a. The Electronic Notice of Appeal includes two reasons in support of Dunpar’s objection to the Parkland By-law that are sufficient grounds of appeal within the meaning of subsections 42(4.9) and 42(4.17) of the Act.

b. The hard copy Notice of Appeal includes four reasons in support of Dunpar’s objection to the Parkland By-law that are sufficient grounds of appeal within the meaning of subsections 42(4.9) and 42(4.17) of the Act.

38Mr. Johnston stated that there is guidance from the Court regarding the manner which the Tribunal should assess the sufficiency of a Notice of Appeal. The Divisional Court has indicated on multiple occasions that the grounds of appeal included in a Notice of Appeal do not need to be comprehensive or precise in identifying the reasons for an appeal.

39Mr. Johnston cites the Divisional Court in Re Luigi Stornelli Ltd. and Centre City Capital Ltd., and in circumstances where the Appellant did not include reasons in its Notice of Appeal:

All things considered, it seems to me that the section, insofar as the "grounds" and "facts" are concerned, must be construed as directory only; that is, as desiring information to be given about them. It is not to be supposed that an appeal should fail altogether simply because the grounds are not indicated, or the facts stated. Even if it is wanting in not giving them, it is not fatal. The defects can be remedied later, either before or at the hearing of the appeal, so long as an opportunity is afforded of dealing with them.

40Mr. Johnston submits that in East Beach Community Assn. v Toronto (City), the Tribunal has similarly held that the sufficiency of the reasons for an appeal included in a Notice of Appeal should not be interpreted in an overly technical manner. It is important for the Tribunal to apply a flexible and permissive lens to the form and substance of a Notice of Appeal, so as not to deprive an appellant of his or her opportunity to present evidence before the Tribunal, and especially in circumstances where a broader public interest may be served.

41Mr. Johnston does acknowledge in Gravely v Kawartha Lakes (City), that the Notice of Appeal must include a brief originating core of reasons for an appeal that constitute apparent land use planning grounds. An appellant is permitted to supplement his or her Notice of Appeal when responding to a motion requesting that his or her appeal be dismissed without a hearing with contemporaneous and after-the-fact correspondence, affidavits, and through submissions.

42Mr. Johnston stated that the various errors and omissions included in the Electronic Notice of Appeal letter are unfortunate, but these errors and omissions, individually and collectively, do not strike at the root of Dunpar’s Appeal under subsection 42(4.9) of the Act.

43Mr. Johnston advised that the “originating core” of Dunpar’s Appeal is that the City’s adoption of the By-law was not in conformity and was inconsistent with applicable municipal and provincial policy because the excessive charges upon development (due to increased land dedication and/or cash-in-lieu requirements) would have the effect of discouraging optimal and affordable intensification. He further stated that a plain reading of the Notice of Appeal demonstrates that Dunpar’s Appeal is objecting to the City’s Alternative Rate of parkland dedication or the payment of cash-in-lieu because the required amount is excessive and will discourage development.

44Mr. Johnston advises that the City’s reliance on case law citing other sections of the Act, namely s. 17(45) and s. 34(25) is incorrect and must be rejected as Dunpar’s Electronic Notice of Appeal does include sufficient reasons in support of its objection.

45Mr. Johnston states that an appeal under subsection 17(45) or 34(25) of the Act are types of appeals where the Legislature – in its wisdom – has decided to amend the Planning Act to provide that the “originating core” of an appellants’ Notice of Appeal must include certain prescribed information in support of its appeal, or else be subject to dismissal.

46Mr. Johnston contrasts the language in s. 42(4.9) of the Act with the sections stated in paragraph 42. Subsection 42(4.9) of the Act does not mandate that the “originating core” of the objections and reasons in support thereof in a Notice of Appeal to include mandatory explanations or in fact any prescribed information, to direct that the appeal is subject to dismissal under s. 42(4.17) of the Act. Unlike s.17(45) and 34(25), s. 42(4.17) specifically provides Dunpar with the opportunity to make representations as to the merits of the appeal, to supplement its objection to the by-law, which are representations Dunpar provided to the Tribunal through this Notice of Response to Motion and Motion Record.

47Mr. Johnston submitted that City provides no case-law in its Notice of Motion and Motion Record to demonstrate that the Tribunal has the jurisdiction or justification in the circumstances of Dunpar’s Appeal under s. 42(4.9) to distinguish binding decisions of the Divisional Court and deny Dunpar its day before the Tribunal. Therefore, the City has not discharged its high onus of showing that its appeal under s. 42(4.9) ought to be dismissed under subsection 42(4.17) of the Act.

48Mr. Johnston commented that despite Dunpar serving a hard copy Notice of Appeal upon the City concurrently with the Electronic Notice of Appeal, the City’s Notice of Motion and Motion Record failed to make any allegations as to whether its objections and reasons in support thereof were insufficient. He stated that the City has not addressed in its Notice of Motion whether Dunpar’s hard copy Notice provides grounds for appeal. Dunpar submits that the City has not discharged its onus of showing that Dunpar’s appeal ought to be dismissed under subsection 42(4.17).

49The Tribunal was advised that Dunpar has filed two affidavits sworn by Mr. Nemanic and Mr. Levac which demonstrate, individually and collectively, that Dunpar’s Notice of Appeal(s) provide grounds for appeal and ought not to be dismissed under subsection 42(4.17) of the Act.

50In support of the Motion, Dunpar filed an affidavit sworn by Jim Levac, dated March 31, 2023. Although Mr. Levac did not provide testimony, he has been qualified by the Tribunal as an expert to provide land use planning opinion evidence and did complete and sign the Acknowledgement of Expert’s Duty Form.

51In his affidavit, Mr. Levac opined that while the City has appeared to have satisfied the legislative requirements to implement an alternative parkland dedication rate and cash-in-lieu equivalent, the City’s Parkland Dedication By-law remains outdated and does not conform to the provisions of the Act.

52Mr. Levac stated that the title of the Letter cites section 37(17) of the Act as being the regulation under which the Notice of Appeal was brought. This is the incorrect section of the Act. He advised the Appeal Form provides that Dunpar is appealing the City’s passage of the Parkland Conveyance By-law pursuant to section 42(4.9).

53Mr. Levac stated there are five grounds of appeal in the Letter. It is his view the Letter “mixes up” reasons for appealing the Parkland By-law with reasons for appealing a Community Benefits Charge By-law. Specifically, the first and second reasons in Dunpar’s Letter give reasons for appeal under section 42(4.9) while reasons three, four, and five give reasons for appeal under section 37(17) of the Act.

54Mr. Levac opined that when read as a whole, the first and second grounds of the appeal provide that the By-law does not conform to the policies of the Growth Plan, is inconsistent with the Provincial Policy Statement, 2020, and does not conform with the Region of Peel Official Plan because excessive charges imposed upon development will discourage the optimal and affordable intensification, including the decision of the City to impose the maximum charge.

55Although not determinative on the legal issue before the Tribunal, Mr. Levac opines the first and second reasons of the appeal letter follow the direction in section 42(4.9) of the Act that “any person … may appeal a by-law passed under this section by filing … a notice of appeal setting out the objection to the by-law and the reasons supporting the objection”. These reasons provide that Dunpar believes that the By-law does not conform and is inconsistent with provincial, regional and municipal policy.

56Mr. Levac opines that it would be reasonable for Dunpar to raise additional reasons for appeal before the hearing of the appeal. When Dunpar was preparing its Letter, the Provincial legislation was in a state of flux. Although not a matter for a planner or any other expert witness to offer an opinion, he states it is reasonable to expect that an appeal to the By-law can and should raise aspects related to whether the By-law conforms to and is consistent with municipal and provincial policy and represents good planning.

57Mr. Levac submits that in his analysis, Policy 19.19.1 of the Mississauga Official Plan states that the City “will” provide for public open space through “other sources” outside of Section 42 land dedications or the payment of cash-in-lieu. As stated on page 47 of the City’s Parks Plan, the City has other “tools” to acquire parkland, including by purchasing the land at fair market value, expropriating the land, through failed tax sales, and through other reserves and sources of funding (property taxes, the use of other capital reserves, debt financing, Federal and Provincial grants, and donations and partnerships). By not appropriately adjusting the need for parkland to account for these other “tools,” except for the City’s existing CIL reserve fund, the By-law does not conform to the Official Plan.

58Mr. Levac reviewed the hard copy Notice of Appeal. He acknowledges he was advised and believes Mr. Monico handed a hard copy of the Appeal to the City’s Clerk Department but conceded that he has no knowledge if the City’s Clerk Department stamped this appeal.

59Mr. Levac opined there are four grounds of appeal in the hard copy Appeal. Unlike the Letter included in the Electronic Appeal, the hard copy Letter only included reasons for appealing the By-law, and all the reasons for the appeal identified are based on valid planning grounds that follow the direction in Section 42(4.9).

60It is Mr. Levac’s opinion that Dunpar’s preparation and filing of the hard copy Letter demonstrates that Dunpar was motivated to appeal the City’s adoption of the By-law due to the genuine, authentic, and legitimate concerns it had with the By-law.

61The evidence provided in Mr. Levac’s affidavit was not contested by planning affidavit evidence in the response from the City. It should be noted that the planning evidence provided by Mr. Levac cannot address the essential legal issue before the Tribunal. As such, the Tribunal does is not rely on Mr. Levac’s view as to whether legal requirements have been met.

62In support of the Motion, Dunpar filed an affidavit sworn by Michael Nemanic, dated March 31, 2023. Mr. Nemanic is a Legal Counsel for Dunpar.

63In his affidavit, Mr. Nemanic stated that on August 1, 2022, he instructed Dunpar Homes’ Development Coordinator, David Monico, to prepare the Appeal Form (A1), attach the completed Appeal Letter to the Appeal Form (A1), and to effect electronic and physical service of separate copies of this Notice of Appeal on the City.

64Mr. Nemanic stated that although it is not his general practice to serve two copies of a Notice of Appeal electronically and physically on a municipality, the City requires the payment of a $300.00 appeal fee by cheque, which must be hand-delivered. Physically serving a notice provides him with the assurance that the City will receive the Notice of Appeal by the prescribed deadline despite any potential computer-related issues.

65On March 27, 2023, Mr. Nemanic stated he learned that the copy of the Notice of Appeal electronically served on the City contained an earlier draft of the Appeal Letter in error. This error was uncovered upon receiving service of the City’s Motion Record and Book of Authorities from Ms. Clutterbuck without prior notice.

66Mr. Nemanic expressed surprise by the City’s Motion, as Dunpar had already been engaged in correspondence with the Tribunal, Mr. Minkowski and Mr. Kehar, legal counsel on behalf the City. He stated that he had indicated Dunpar continues to take issue with the By-law and would be prepared to speak to those issues at the initial CMC.

REPLY MOTION OF THE CITY

67In response to the alleged hard-copy, Mr. Kehar observes that Dunpar has not proffered an affidavit from the individual it alleges delivered the hard copy to the City. The affidavits which Dunpar has proffered are hearsay, providing no direct information. He also states the City Clerk’s office has no record of receiving the alleged “correct” hard copy.

68In support of the Motion, the City filed an affidavit sworn by Debbie Sheffield, dated April 5, 2023. Ms. Sheffield is the Manager of Vital Statistics and the Committee of Adjustment for the City.

69Ms. Sheffield advised that she has reviewed the entirety of the City’s records and the City does not have the original hard copies of the appeals that were allegedly received, including the hard copy of Dunpar’s appeal, as those hard copies were forwarded directly to the OLT, as is routine.

70Ms. Sheffield provided a digital copy of the full appeal record the City has in its file that was sent to the Tribunal on August 17, 2022. She notes that the alleged “correct” hard copy of the appeal described by Dunpar in its responding motion materials is not included in this appeal record.

ANALYSIS AND FINDINGS

71The Tribunal’s authority to dismiss an appeal is found in s. 19(1) of the Ontario Land Tribunal Act, S.O. 2021. C. 4, Sched 6 (“OLTA”) and s. 42(4.9) of the Act .

72Section 19(1) of OLTA sets out the Tribunal’s general powers to “dismiss a proceeding without a hearing”. It 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,

if the party who brought the proceeding has not paid any fee required to be paid under this Act;

if the party who brought the proceeding has not responded to a request by the Tribunal for further information within the time specified by the Tribunal;

if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;

in any circumstance listed in subsection 4.6 (1) of the Statutory Powers Procedure Act; or

in any circumstance provided for under any other Act.

Notice

(2) The Tribunal shall give the parties notice of its intention to dismiss the proceeding, setting out the reasons for the dismissal and informing the parties of their right to make written submissions to the Tribunal with respect to the dismissal within the time specified in the notice.

Submissions

(3) A party who receives a notice under subsection (2) may make written submissions to the Tribunal with respect to the dismissal within the time specified in the notice.

Dismissal

(4) The Tribunal shall not dismiss a proceeding under subsection (1) until it has given notice under subsection (2) and considered any submissions made under subsection (3).

Application

(5) For greater certainty, this section applies instead of section 4.6 of the Statutory Powers Procedure Act.

73Section 42(4.9), s. 42(4.13) and s. 42(4.17) of the Act sets out the responsibilities of and more specifically the circumstances under which the Tribunal may choose to dismiss a parkland conveyance By-law appeal. It states:

(4.9) Any person or public body may appeal a by-law passed under this section to the Tribunal by filing with the clerk of the municipality, on or before the last day for appealing the by-law, a notice of appeal setting out the objection to the by-law and the reasons supporting the objection. 2020, c. 18, Sched. 17, s. 2 (4).

(4.13) The Tribunal shall hold a hearing to deal with any notice of appeal of a by-law passed under this section forwarded by the clerk of a municipality. 2020, c. 18, Sched. 17, s. 2 (4).

(4.17) Despite subsection (4.13), the Tribunal may, where it is of the opinion that the objection to the by-law set out in the notice of appeal is insufficient, dismiss the appeal without holding a full hearing after notifying the appellant and giving the appellant an opportunity to make representations as to the merits of the appeal. 2020, c. 18, Sched. 17, s. 2 (4).

74On a motion to dismiss a parkland conveyance By-law appeal, the Tribunal is to examine whether the grounds set out in the notice of appeal is insufficient.

75The City’s position is the Dunpar Notice was fatally deficient because it did not provide an objection to the By-law and the reasons supporting the objection. The Dunpar Notice was therefore not valid because it has not met the statutory requirements for a Notice of Appeal pursuant to s. 42(4.9) of the Act. The Tribunal does not agree.

76The electronic Notice of Appeal identifies the Appeal under s. 42(4.9.) of the Act. The Letter misidentifies the correct provision of the Act and of the five points therein, only two points could be linked to the Parkland Conveyance By-law appeal. This appears to the Tribunal to be simply a clerical error which Dunpar in good faith has attempted to rectify.

77There was no argument put forth that the electronic Notice of Appeal did not meet statutory timelines. As there is no record of a filing of a hard copy Notice of Appeal, the instruments that can be considered before the Tribunal are the electronic Notice of Appeal and the disputed hard copy Letter that is contained as part of Dunpar’s submissions. The Tribunal makes special note of the Divisional Court decision Re Luigi Stornelli Ltd and City Centre which states : “It is not to be supposed that an appeal should fail altogether simply because the grounds are not indicated, or facts stated. Even if it is wanting in not giving them it is not fatal. The defects can be remedied later, either before the hearing of the appeal, so long as an opportunity is afforded of dealing with them”. Dunpar has made the effort to remedy the defects later by submitting the hard copy Letter.

78The Tribunal notes that it is common practice in proceedings before it, that reasons for an appeal and the issues that find their way into the Procedural Order Issues List related to any appeal are often further defined, explained in a more fulsome way, refined, or scoped as required to ensure a “fair, just, expeditious and cost-effective resolution of the merits of the proceeding”. In the response to the City’s motion, Dunpar has attempted to do just that.

79It is the Tribunal’s view that it has always been Dunpar’s intent to appeal the City’s Parkland Conveyance By-law. This is supported by the affidavit of Mr. Levac but also the affidavit of Mr. Nemanic, specifically email correspondence between the Parties.

80It is a well-established principle that, on a Motion to Dismiss an appeal, the Tribunal may look beyond the written reasons in the Notice of Appeal to determine whether there are genuine, authentic, and legitimate planning issues to be adjudicated. Sub-section 42(4.17) of the Act speaks to the ability to dismiss an appeal without a hearing if the grounds for the objection are insufficient. In this matter, Dunpar does not believe that the Parkland By-law conforms and is consistent with provincial, regional and municipal policy. Those reasons on their own represent sufficient reasons to validate Dunpar’s Appeal.

81The Tribunal has similarly held that the sufficiency of the reasons for an appeal included in a Notice of Appeal should not be interpreted in an overly technical manner. It is important for the Tribunal to apply a flexible and permissive lens to the form and substance of a Notice of Appeal, so as not to deprive an appellant of his or her opportunity to present evidence before the Tribunal, and especially in circumstances where a broader public interest may be served.

82The uncontested opinion of Mr. Levac is that when read as a whole, the first and second grounds of the appeal provide that the Parkland By-law does not conform to the policies of the Growth Plan, is inconsistent with the Provincial Policy Statement, 2020, and does not conform with the Region of Peel Official Plan because excessive charges imposed upon development will discourage the optimal and affordable intensification, including the decision of the City to impose the maximum charges.

83Mr. Levac opines that when Dunpar was preparing its Appeal Letter, the Provincial legislation was in a state of flux. He continues that it is reasonable to expect that an appeal to the By-law can and should raise aspects related to whether the By-law conforms to and is consistent with municipal and provincial policy and represents good planning.

84The Tribunal finds that the Dunpar Appeal has provided a sufficient “originating core” to be considered as a valid appeal. Their submissions have been consistent from the outset that the By-law is not in conformity and is inconsistent with the statutory requirements of applicable provincial and municipal policy. The Tribunal has a clear responsibility to adjudicate the statutory provisions relevant to public policy in the Province of Ontario.

85The Tribunal finds it is in the public interest to have Dunpar’s assertions tested in a duly scheduled Merits Hearing.

86The Tribunal finds that the Dunpar Appeal should proceed based on the reasons set out in the electronic Notice of Appeal and moreover, the hard copy Letter is an appropriate starting point for the definition of issues to be included in the Issues List found in the Procedural Order in respect of this matter. Issues presented to the City by Dunpar should be framed with additional evidence and documentation to assist the Tribunal in understanding the grounds and explanations that are already contained in the electronic Notice of Appeal and the hard copy Letter.

87The Tribunal is prepared to schedule a full-day CMC to commence at 10:00 a.m. on Tuesday October 10, 2023.

88The Tribunal is not inclined to schedule a Merits Hearing at this CMC. A Hearing date may be considered at the October CMC subject to the completeness of the Procedural Order.

CASE MANAGEMENT CONFERENCE TECHNICAL DETAILS

89A full-day Case Management Conference will convene on Tuesday October 10, 2023 by video hearing at 10:00 a.m.

90Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections.

91The CMC is scheduled to proceed by video as follows:

https://global.gotomeeting.com/join/709076365

Access Code: 709-076-365

92Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.

93Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

94Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

95The Motion of the City of Mississauga is dismissed.

96A full-day Case Management Conference is scheduled to commence at 10:00 a.m. on Tuesday, October 10, 2023.

97The Tribunal directs that all Parties provide their particularized Issues List to the City of Mississauga and all other Parties no later than 4.30 p.m. Wednesday August 23, 2023.

98The Tribunal members may be spoken to if there are any issues with respect to the implementation of these directions.

99The Tribunal so Orders.

W. DANIEL BEST MEMBER

BRYAN W. TUCKEY MEMBER

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.