Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 20, 2023

CASE NO(S).: OLT-22-002878 (Formerly PL210273)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Eleonora Lalli

Subject: Consent - Conditions of provisional consent

Property Address/Description: 3051-3055 Homestead Drive

Municipality: City of Hamilton

Municipal File No.: B-55/20

OLT Lead Case No.: OLT-22-002878

Legacy Lead Case No.: PL210273

OLT Case No.: OLT-22-002878

Legacy Case No. PL210273

OLT Case Name: Lalli v. Hamilton (City)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Motion By: Eleonora Lalli

Purpose of Motion: Request for Determination / Directions

Subject: Consent - Conditions of provisional consent

Municipality: City of Hamilton

PROCEEDING COMMENCED UNDER subsection 53(31) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Motion By: City of Hamilton

Purpose of Motion: Request to Dismiss Appeal

Subject: Consent - Conditions of provisional consent

Municipality: City of Hamilton

Heard: November 28, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Eleonora Lalli (“Appellant”)	David Danielson
City of Hamilton (“City”)	Rachel McVean

Link to Final Order

DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision, unfortunately delayed in its issuance, decides two motions that are before the Tribunal in relation to the Appellant’s Appeal under s. 53(10) of the Planning Act. The City’s motion is a Motion to Dismiss the Appellant’s appeal pursuant to s. 53(31) of the Planning Act, with additional reference to s. 19(1)(c) of the Ontario Land Tribunal Act (“OLT Act”). The Appellant’s motion is a Motion for Productions requesting an Order that the City provide identified financial records and will-say statements.

2Obviously, if the City’s Motion is successful, the Appellant’s Motion is moot.

3Much of the background and evidence proffered in the two Motions is interrelated to the issues and relief sought in both Motions. Some of those facts and background are contentious.

4The Tribunal received the following Motion materials from the parties:

City’s Motion to Dismiss:

1. City’s Motion Record dated November 11, 2022, with the Motion to Dismiss and the Affidavit of Rachel Woon sworn November 11, 2022;

2. Appellant’s Notice of Response to Motion to Dismiss dated November 17, 2022;

3. Appellant’s Affidavit of Dr. Eleonora Lalli sworn November 18, 2022, in support of the Response to the City’s Motion to Dismiss

4. Reply Submission of the City dated November 22, 2022;

5. Brief of Authorities of the City dated November 23, 2022; and

6. Brief of Authorities (Addendum) of the City dated November 25, 2022.

Appellant’s Motion for Directions:

1. Appellant’s Notice of Motion for Directions dated November 11, 2022;

2. Rule 10 Excerpt;

3. Appellant’s Affidavit of Dr. Eleonora Lalli sworn November 11, 2022, in support of the Appellant’s Motion;

4. Response Motion Record of the City, November 21, 2022, inclusive of the Affidavit of Rachel Woon sworn November 21, 2022, and the Affidavit of Aman Hansra sworn November 18, 2022;

5. Appellant’s Reply to the City’s Response on Motion for Directions;

5The Appellant’s Motion materials also included citations to various Decisions with hyperlinks to which were retrieved by the Panel.

BACKGROUND OF THE APPEAL AND THE MOTIONS

6The Appellant applied for, and was granted, provisional consent by the City’s Committee of Adjustment (“Committee”) on March 18, 2021, to sever lands located at 3051-2055 Homestead Drive in the City of Hamilton (“Subject Property”). Provisional consent to the severance was subject to a number of conditions, including Condition 6 which reads as follows:

If required, the owner will provide a cash payment based on the current “New Roads Servicing Rates” for the future urbanization of Homestead Drive to the satisfaction of the City’s Manager of Development Engineering Approvals.

7The City’s Planning Staff, in its report and recommendations to the Committee dated March 18, 2020, had, a year earlier, addressed the appropriate inclusion of what became Condition 6 to provisional consent, in the event the severance was approved.

8The origin of the recommended and imposed condition is found in Policy L.3.4 in the council approved City of Hamilton Comprehensive Development Guidelines and Financial Policies. It applies to all lands within the Urban Area Boundary of the City’s Official Plan that are adjacent to an existing road of rural cross section and the subject of a consent application. The evidence is clear that the Subject Property is within the area and location to which Policy L.3.4 applies. The City’s policy reads as follows:

L.3.4. Payment for Future Urbanization of Existing Rural Roads

Where land is subdivided, adjacent to an existing road of rural cross section which is located within the Urban Area Boundary as defined by the City's Official Plan, the City shall collect a cash payment representing the Proponent's contribution toward the cost to urbanize existing rural roads including local size storm sewer. The requirement to pay toward future road urbanization shall be imposed by the City as a condition of an application to subdivide land. Payment shall be determined by multiplying the New Roads Servicing Rate in effect at the time of payment by the property frontage of the subdivided land which represents new development as defined under this policy and the sum shall be collected by the City prior to final release of the Planning Act application. Development fee tables can be obtained from Planning and Economic Development Department, Growth Management Division.

9On April 8, 2021, the Appellant appealed only the imposition of Condition 6. Given the significance of the specific grounds set out in the Notice of Appeal in determining the Motion to Dismiss, they warrant reproduction at the outset:

1. Condition 6 of the Committee’s decision is unreasonable because

a) its precursor, Condition 7, was not properly before the Committee for consideration. In particular, the Committee breached Dr. Lalli’s right to procedural fairness by proposing Condition 7 without any notice, thereby precluding a reasonable opportunity to prepare responding submissions, and defying Dr. Lalli’s reasonable expectation that only conditions from the tabled meeting would be discussed at the rescheduled meeting.

b) The City only recommended Condition 7 after the fact, and not as part of the original hearing recommendation. The City provided no justification for adding this additional recommended condition in the intervening period between the originally scheduled hearing and the rescheduled hearing — that is, the City provided no explanation for why it failed to raise the condition before the first hearing—and the Committee failed to provide a rational basis for accepting, without question, this after-the-fact condition. There was therefore no reasonable basis on the record for the Committee to find that imposing Condition 6 was appropriate.

c) The City erred in law by concluding that it lacked jurisdiction to grant provisional approval without Condition 6.

2. The Committee erred in law by failing to consider and provide reasons on whether Condition 7 was properly before the Committee for consideration.

10The hearing of the Appeal was initially scheduled for September 27, 2021. Following the exchange of documents in preparation for the hearing, on September 20, 2021, the Appellant requested an adjournment which was granted to permit discussions between the Parties. A status update was subsequently provided in May of 2022, confirming that settlement discussions had not been productive. After a further meeting, the City requested that the matter be set down for a hearing, and in response the Appellant requested a Case Management Conference (“CMC”) date.

11This prompted inquiries from the Appellant as to disclosure of certain financial information relative to the use of funds collected from consent applications with the proviso that further requests might be required, depending on the initial responses. It was also during this hiatus that there was a relay of information to the Appellant that the hearing was a hearing de novo, which may have prompted the email dated June 15, 2022, in which the Appellant introduced an alternative “theory of the case”, based upon the financial policies of the City and its administration thereof.

12For ease of reference in this Decision, these reasons and explanations provided by the Appellant, through counsel, in the email of June 15, 2022, will be referred to as the “Supplementary Reasons”.

13The Appellant explained in the Supplementary Reasons that her fundamental underlying arguments as to why the condition is not reasonable is that the City is not using funds collected from such a consent condition “...toward a Planning Act purpose” and instead such a condition is being used as a general revenue collection mechanism. Put another way by the Appellant: “There is no Planning Act-compliant reconciliation between money in and money out….no nexus between the condition and the Planning Act…” and based upon principles of administrative law “...it is unreasonable to impose a discretionary condition that falls outside the intended scope of the discretion conferred by a statute.”

14The Appellant’s Motion for Productions, relating to that financial information in the hands of the City, was then scheduled for this date. The City’s Motion to Dismiss followed, returnable on the same day.

APPELLANT’S MOTION FOR PRODUCTIONS

15In addition to an order directing the City to provide the Appellant with will-say statements for all of its witnesses, the Appellant specifically requests the following productions:

(a) all of the City’s financial records that are related to money collected from conditions substantially similar to the one under appeal here, for a period of five years, showing the money from those conditions going into the City’s accounts, and exactly which accounts that money is going into; and

(b) a reconciliation showing what that money is being used for (assuming it exists).

16It is the Appellant’s submission is that this information is necessary for the Tribunal to know the reasonableness of the requested condition based upon the theory of her case.

17It is the City’s position that the Appellant’s original grounds for appeal and the subsequently disclosed Supplementary Reasons of June 2022, are beyond the scope of an appeal under s. 53(19) of the Planning Act and outside the scope of the Tribunal’s jurisdiction and the Appeal should be dismissed. The requested financial records are accordingly not relevant to the Appeal. The request in itself is also unreasonable and excessive in the City’s view.

CITY’S MOTION TO DISMISS

18The City relies upon the following subsections of s. 53(31)(a) of the Planning Act as grounds for the Motion to Dismiss:

Dismissal without hearing

(31) Despite the Statutory Powers Procedure Act and subsection (30), the Tribunal may, on its own initiative or on the motion of any party, dismiss an appeal without holding a hearing if,

(a) it 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 give or refuse to give the provisional consent or could determine the question as to the condition appealed to it,

(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

(c) the appellant has not provided written reasons for the appeal;

19In oral submissions, the City has also submitted that the Tribunal has grounds to dismiss the Appeal under s. 19(1)(c) of the OLT Act which grants the Tribunal the authority to dismiss a proceeding without a hearing “if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.”

20It is the City’s position that the original grounds of Appeal focused upon the timing of the after-the-fact imposition of Condition 6, the lack of prior warning of the intention to add the Condition and the fact that there was no reasonable basis on the record for the Committee to find that imposing Condition 6 was appropriate. The City submits that, after learning that the hearing was a hearing de novo, the Appellant then introduced new grounds within the alternative “theory of the case” over 14 months after the Notice of Appeal was filed.

21The Tribunal agrees with the City’s submission that the Appellant’s grounds for the Appeal set out in the June 15, 2022, email, were now based upon the financial policies of the City and its administration thereof which had not been previously identified in the Notice of Appeal. The Appellant’s additional grounds for appeal were that the City was asking the Committee to impose the condition to collect funds for such things as roads but was “not actually use the funds for that purpose”. The Appellant’s Supplementary Reasons for Appeal are that there is no “Planning Act-compliant reconciliation between money in and money out”. In her Motion materials the Appellant submits that it is unreasonable to impose a condition such as Condition 6 because “there is no nexus between the condition and the Planning Act.”

22For the purposes of this Decision, and at this point, the Panel will interject and confirm that it is the finding of the Tribunal that these Supplementary Reasons for the Appeal within the Appellant’s “theory of the case” were, and are, not contained in the Notice of Appeal filed before the Tribunal. They represent additional and new reasons for the Appeal.

23It is also the finding of the Tribunal that these Supplementary Reasons and grounds for Appeal set out in the June 15 email, and now identified in this Motion, are the focused basis for the Appeal. The Affidavit of the Appellant, and the submissions of her counsel, make clear that the primary focus of the Appeal is now based upon the Supplementary Reasons and not those matters of Committee process and procedural fairness at the Committee hearing that were identified as the reasons for the appeal in the Notice of Appeal.

24As a substantive matter, the City argues that the complete abandonment of the original grounds for the Appeal, and the new and improper introduction of new grounds for Appeal 14 to 15 months later, which were not previously set out in the Notice of Appeal, is procedurally prohibited and that such “new” grounds should not be properly before the Tribunal.

25The City submits that even if the Tribunal accepts that the Appellant is permitted to “rewrite” her grounds for Appeal, the Supplementary Reasons presented as the Appellant’s “theory of the case” on June 15, 2022, then these “rewritten” grounds still do not disclose any apparent land use planning ground because:

• the Appellant has failed to articulate planning grounds for appeal,

• the arguments are not clear or precise;

• the arguments are grounded in unfounded allegations, and

• the financial condition of a municipality is irrelevant to an appeal under section 53(19) of the Planning Act.

26The Appellant’s Response to the Motion to Dismiss is that there are legitimate land use planning grounds to put before the Tribunal which are reasonable and necessary to be determined by the Tribunal. Primarily, those are the land use planning grounds set out in the Supplementary Reasons.

ANALYSIS AND DISPOSITION – MOTION TO DISMISS

27The Tribunal will first address the City’s Motion to Dismiss.

Bad Faith, Frivolous, Vexatious or Conduct for the Purpose of Delay

28The Tribunal can first deal summarily with the alternate grounds for dismissal advanced by the City that the Appellant’s appeal is not made in good faith, is frivolous, or vexatious or made only for the purpose of delay.

29The Tribunal has considered the detailed background to the Motions and much of the back-and-forth email communications between the Parties. Save and except as this background provides the chronology leading to the later delivery of the Appellant’s “theory of the case” (relative to her original grounds for Appeal in the Notice of Appeal), much of this is unhelpful to the Tribunal in the determination of the Motions. The Tribunal does not find that there is any action or inaction on the part of the Appellant that can assuredly lead to a finding by the Tribunal that she was ever acting in bad faith, deliberately advancing her Appeal in a frivolous manner, intending to be vexatious or for the purposes of delay, or motivated to have the City exhaust its resources such that it might succumb and waive Condition 6. Much of the City’s submissions and evidence in this regard are advocacy or conjecture. There is no such evidence of this type of misconduct on the part of the Appellant and there is no basis to dismiss the Appellant’s Appeal pursuant to these factors set out in s. 53(31)(a)(ii) or (iii) of the Planning Act.

Remaining Bases For City’s Motion to Dismiss

30This leaves the balance of the City’s submissions focused upon three bases:

1. First, the Appellant must be limited to the grounds for the Appeal as they were set out in the original Notice of Appeal filed by her counsel. The City contends that the Appellant’s introduction of her “theory of the case” in June of 2022, based upon the financial policies implemented and administered by the City, is an attempt to add new grounds for Appeal which were never contained in her Appeal. As such, the Appellant is not merely enhancing or expanding upon grounds contained in the Appeal, but rather advancing entirely new grounds which she is not entitled to do.

2. From this, the City argues either: (a) the Appellant has effectively abandoned her original grounds for Appeal and thus there are no grounds for appeal before the Tribunal; or (b) the grounds that are contained in the Appeal filed with the Tribunal do not disclose any apparent land use planning grounds upon which the Tribunal could determine the question as to Condition 6 as appealed. The Tribunal may therefore dismiss the Appeal under s. 53(31)(a)(i) of the Planning Act.

3. If the Tribunal accepts that the original Notice of Appeal sufficiently provides a basis for the Appellant to enhance or “flesh out” grounds for appeal and that the additional/reformulated grounds in the Appellant’s email in June of 2022 are properly before the Tribunal, the Appeal also fails to meet the threshold and must also be dismissed. The City argues that the Appellant’s Supplementary Reasons for the appeal relate to an attack not upon the Condition but instead upon Council’s original imposition of the policy requiring the cash payment upon a severance and the City’s financial administrative policies and processes. The City submits that the Tribunal does not have the authority to consider such matters and, accordingly, these additional enhanced grounds for the Appeal, as framed in the Supplementary Reasons, also do not constitute apparent land use planning grounds upon which the Tribunal could determine the acceptability of Condition 6, as appealed.

Appellant’s Ability To Add Or Vary Grounds For Appeal

31Despite the Appellant’s advocacy in the Motion, the Tribunal does not perceive the City’s submissions, as to the sufficiency of the grounds first asserted in the Appeal and the objection to the introduction of new reasons for the Appeal, to reflect merely that the City is “unhappy” with the way the Appellant has framed her appeal. Nor does the Tribunal view this position as merely a “technical argument on the substantive adequacy of pleadings”. Rather, it is the Tribunal’s view that the City is legitimately raising the issue as to the Tribunal’s powers and/or discretion to permit an appellant to vary or add grounds to an appeal beyond those that were first set out in the Notice of Appeal filed within the limited period of time available to file an Appeal under the Planning Act.

32The Tribunal is unable to agree with the Appellant’s submission that the grounds set out in the Notice of Appeal are “straightforward” as identifying clearly, as a ground of appeal, “…that Condition 6 is unreasonable”. It is not self-evident to the Tribunal that the limited statement in the Notice of Appeal as to reasonableness effectively opens the door to the inclusion of the Supplementary Reasons as land use planning grounds for the Appeal.

33The question then is whether the Tribunal may permit the Appellant to introduce the grounds and reasons in the Supplementary Reasons, and advanced in this Motion, separate and apart from the Notice of Appeal, which was filed within the statutory period imposed under s. 53(19) of “not later than 20 days after the giving of notice…”.

34Within the stated grounds for the Appeal set out in paragraph 9 above, there is only one sentence that might possibly be construed as identifying a ground of appeal based upon the planning standard of reasonableness. At the end of paragraph 1(b) the Appellant states: “There was therefore no reasonable basis on the record for the Committee to find that imposing Condition 6 was appropriate”.

35This assertion might, on its face, appear to identify a ground for the Appeal relating to the requirement for reasonableness in s. 51(25). The Tribunal however must examine this sentence in the context of the whole of paragraph 1(b) of the Notice of Appeal which focuses upon the Appellant’s objection to the “…lack of justification for adding this additional recommended condition in the intervening period between the originally scheduled hearing and the rescheduled hearing.” The objectionable concern is the lack of warning and the Appellant’s expectation that only the conditions from the first meeting would be discussed at the rescheduled meeting.

36This concern does not go the reasonableness of the Condition itself nor the reasonableness of the Condition “having regard to the nature of the development proposed”. It is the view of the Tribunal that this ground for the appeal, as stated in the Notice of Appeal, does not relate to the lack of reasonableness in imposing the Condition itself having regard to the nature of the provisional consent requested from the City, but rather the reasonableness of surprising the Appellant with the requirement for the condition, and the timing of advising the Appellant that the Condition would be imposed.

37In the Tribunal’s view, the reasons in the Notice of Appeal are not articulated in a manner such that the Supplementary Reasons can be considered merely as the further elaboration or expansion of reasons already provided in the Notice. Instead, these later grounds, in the guise of the Appellant’s “theory of the case”, for the first time, introduce matters relating to the propriety of the condition imposed under the original Policy L.3.4, which imposed the requirement for collecting the contribution toward the cost to urbanize existing rural roads, including local size storm sewers. The Appellant has, in her Affidavit and in the Motion materials, identified as a ground for appeal that the City is using the Condition as a “general revenue collection mechanism” where the funds are used for whatever the City wants rather than the purpose identified in Policy L.3.4. She reasons that there is accordingly no “Planning Act-compliance reconciliation between money in and money out”. The reason that the Appellant believes the Condition is inappropriate is that there is an absence of any nexus between the Condition and the Planning Act. Based upon administrative law principles, the Appellant argues that it is unreasonable to impose a discretionary condition that falls outside the intended scope of the discretion conferred by a statute.

38All of these focused grounds for the Appeal contained in the Supplementary Reasons, in the Tribunal’s view, are entirely separate and apart from the grounds for Appeal originally contained in the Appellant’s Notice of Appeal. These reasons are new reasons. These new and different grounds have not been filed by the Appellant within the statutory time frame. s. 53(19) obligates the Appellant to file a notice of appeal “….setting out the reasons for the appeal…” not later than 20 days after the notice of decision of the Committee issues. The Appellant is thus failing to comply with the strict procedural requirements for the Notice of Appeal that are mandatory upon any Appellant.

39The Tribunal has taken a restrictive approach in planning appeals as to the ability of Appellants to add additional grounds to those properly contained within a Notice of Appeal. The various sections of the Planning Act expressly dictate the obligation in a planning appeal to file a written notice of appeal “setting out the reasons for the appeal” within the prescribed time period. There are no statutory provisions in the Planning Act for the amendment of a notice of appeal nor any express authority granted to the Tribunal to amend a notice of appeal.

40Neither the Tribunal’s home statute, nor the Statutory Powers Procedure Act, provide for the amendment of a notice of Appeal.

41In addition to its general powers in the Ontario Land Tribunal Act, the Tribunal is, by statute, authorized to establish practices and procedures to govern its proceedings and specifically to make Rules governing its practices and procedures. The Tribunal’s Rules of Practice and Procedure also do not provide for processes to amend a notice of appeal. Rule 5, which governs all initiating proceedings includes the requirement in Rule 5.1(d) that an appellant “state the statutory origin or authority and nature of the matter, adequately detailed reasons upon which the matter is brought before the Tribunal, and the order requested.”

42Rule 19, and the Tribunal’s case management procedures, tailored for proceedings under the Planning Act, follows a process that includes addressing preliminary hearing matters such as to “determine the issues raised by the appeal”. In the Tribunal’s case management process, the reasons and content required in the Notice of an Appeal will directly inform the examination and listing of the issues to be addressed at a hearing. If a proceeding is managed through a scheduled Case Management Conference, the creation of a formal Issues List in a Procedural Order will be based upon the reasons in the notice of appeal. Once established, changes to the issues list are strictly limited.

43Upon this statutory and procedural framework, the Tribunal will not, itself, create grounds for appeal issues that have not been identified by the Appellant or the statutory parties. The Tribunal will not allow an appellant to expand its appeal after the Notice of Appeal has been filed and beyond the statutory timelines for filing. The Tribunal will allow for issues to be particularized in case management and expects the parties to “drill down” on the issues based upon the reasons for the appeal. In that respect there is a dilation or refinement of the reasons and grounds in the Notice of Appeal. For example, a ground/reason contained in an appeal that a proposed development fails to conform to the urban design policies of a municipality’s official plan and building design guidelines may be restated to more specifically identify an issue of height, or setback on the street-side of a lot and identify specific policies of the OP or design guidelines that speak to height, step-back, setback, angular plane and the like. This procedural management of files by the Tribunal does not involve the creation or addition of new reasons, grounds or issues that were not set out in the Notice of Appeal.

44The City is correct in its submissions that the Tribunal will be more lenient with self-represented litigants who may be less familiar with the Tribunal’s rules and processes, but equally so, all litigants are expected to familiarize themselves as to the Tribunal’s procedural rules and the law applicable to an appeal. The statutory requirement of including the reasons for an appeal in a notice of appeal however will not be ignored, no matter the litigant.

45The principles in City of Toronto v. East Beach Community Association 1996 CarswellOnt 5740 (“East Beach”) reflect this restrictive approach to the stated grounds for an Appeal. In East Beach, the Board, as it then was, focussed directly upon what disclosure of planning grounds has been made within the notice of appeal with a view to determining whether they constitute “genuine, legitimate and authentic planning reasons”. The exercise is not one that considers additional new submissions, materials, supplementary communications, submitted by an appellant after the notice of appeal has been filed, but rather, considers only the appeal document. As the Board indicated in East Beach, a standard of “punctilious care” and “ironclad” reason may not be required in drafting the Notice of Appeal. There must however be authentic reasons stated – reasons which establish the grounds for the Appeal. There is no opportunity for “do-overs” in crafting the notice of Appeal – only the opportunity to elaborate or expand upon reasons already there.

46The Tribunal would note that during the limited life of the Bill 139 iteration of the Planning Act, the Tribunal consistently adopted this regimented approach by undertaking validity pre-screening of all appeals to determine whether the content of a Notice of Appeal contained the requisite explanation as to the manner in which a by-law was inconsistent or failed to conform with polity statements. While there were of course substantive differences in the legislation under Bill 139, the focus of the Tribunal was, as it was before, and now continuing, all about the content of the notice of appeal filed in accordance with the Planning Act.

47The Tribunal has considered the submissions of the Appellant and her referenced case law in support of the position that adding new grounds to the Appeal, in the manner set out in the June 2022 email, is an acceptable procedural process that should be allowed for reasons of fairness. The Tribunal has read the Appellant’s Notice of Appeal as generously as possible but the grounds and reasons for the appeal in the Supplementary Reasons, that simply do not exist in the Notice and are now sought to be advanced anew, cannot be recognized. The example of the higher court’s generous reading of a Notice of Appeal, in Mullins v. Morgan, 2010 ONSC 5722, which was ultimately supplemented by material in a factum, is not, in the Tribunal’s view, a helpful authority as to the manner in which this administrative tribunal administers and processes appeals under the Planning Act. It is also distinguished from the facts of this Appeal.

48The Tribunal is also unable to agree with the Appellant that the presence or absence of prejudice to a party is relevant to the consideration of adding grounds and reasons for an appeal that are wholly absent from the notice of appeal. The absence of the reasons in the notice of appeal is, under the Planning Act, relevant under s. 53(31) which requires the Tribunal to decide whether, in its opinion, “the reasons set out in the notice of appeal do not disclosure any apparent land use planning ground upon which the Tribunal could give or refuse to give the provisional consent or could determine the question as to the condition appealed to it”. There is no requirement under this section, or the approach in East Beach, to weigh matters of prejudice to one party or the other in deciding whether the Appeal should be dismissed.

49For all these reasons, the Tribunal accordingly finds that the reasons and grounds which must be considered in deciding the City’s Motion to Dismiss are limited only to those reasons set out in the original Notice of Appeal filed by the Appellant and not those Supplementary Reasons set out in the subsequent email of June 15, 2022. The singular sentence in the Notice of Appeal referencing the unreasonableness of imposing “a discretionary condition that falls outside the intended scope of the discretion conferred by a statute”, when read in the context of the whole of the Appeal letter, does not identify a reason that logically can be expanded to encompass the very different reasons set out in the subsequent email.

50To address the referencing used by the City, the Tribunal is unable to agree that the communication of the Appellant on June 15, 2022, served to effectively cause the reasons and grounds in the Notice of Appeal to be “abandoned”. The circumstances here are not akin to the example cited by the City in Lambert v. Kotanko, 1999 CarswellOnt 5311, and the Tribunal will not make a finding that the proposed “shift in argument” by the Appellant means that the Appellant has abandoned her grounds set out in the Notice of Appeal. To the contrary, based upon the findings and conclusions above, the reasons in the Notice of Appeal remain the only grounds before the Tribunal for consideration.

51The Tribunal will accordingly now consider whether the reasons set out in the Appellant’s Notice of Appeal filed on April 8, 2021, warrant a dismissal of the Appeal under s. 53(31)(a)(i) and/or s. 19(1)(c) of the OLT Act.

52However, in the event the Tribunal is incorrect in its findings and its approach, that the Tribunal’s consideration of the Motion must focus only upon the stated reasons in the Notice of Appeal, and if the Tribunal is required to also consider the Supplementary Reasons and grounds set out in the email of June 15, 2022, the Tribunal will undertake the additional analysis and consider whether the Supplementary Grounds warrant a dismissal of the Appeal.

Original Grounds in Notice of Appeal – No Apparent Land Use Planning Grounds

53For the reasons that follow, it is the Tribunal finding that the reasons and grounds for the Appeal that were first contained in the Notice of Appeal do not disclose any apparent land use planning grounds upon which the Tribunal could determine that Condition 6 cannot be a condition to the giving of provisional consent. Upon the same findings and reasons, the Tribunal would conclude that the proceeding has no reasonable prospect of success. The Appeal should accordingly be dismissed.

54When determining whether a provisional consent is to be given, s. 53(12) of the Planning Act grants the approval authority the same powers as those under s. 51(25) which is to include “such conditions to the approval….as in the opinion of the approval authority are reasonable, having regard to the nature of the development proposed…”.

55In a plain reading of the whole of the content of the Notice of Appeal, rather than focusing upon land use planning grounds, the Appellant’s grounds are restricted to perceived deficiencies in process on the part of the Committee. Such failings of the Committee are identified as: failing to alert the Appellant that a condition of this form would be considered; failing to provide justification for adding a condition which the Appellant asserts was not mentioned during the first attendance before the Committee; failing to provide a rational basis for accepting “this after-the-fact condition”; and failing to consider whether the condition was properly before the Committee.

56A reason advanced by the Appellant in her Notice of Appeal as to why Condition 6 should not be imposed, was that no notice was given to her, when the application was first tabled and before the Committee on September 17, 2020, that the condition would be imposed. The Appellant states that she was denied procedural fairness because her representative was caught by surprise when the condition was imposed when the matters was back before the Committee on March 18, 2021, when provisional consent to the severance was given. The Appellant’s reasons for the Appeal indicate that no explanation was provided as to why this was not raised at the first hearing and, the Appellant asserts, no justification or “rational basis” was provided for imposing the condition “after-the-fact”.

57The City’s consolidated Report from City staff dated March 18, 2020, which included the recommendation of what was eventually imposed as Condition 6, was prepared in advance of the first meeting of September 17, 2020. It was before the Committee when the Decision was made. The Minutes on March 28, 2021, reflect the input provided by the Appellant’s representative as to the inclusion of the Condition, and the eventual request of that representative to add the wording “If required”, so that they could “move on”, which was done. The decision was then made including the Condition with that additional wording requested by the Representative.

58The Tribunal may have regard to the information and material before the original approval authority, and the Decision of the Committee. Otherwise, the internal processes and procedures undertaken by the Committee at the time of its meetings are of no relevance to the Tribunal which, upon an appeal, has the full authority and jurisdiction to determine the Appeal and decide whether and how the Condition under Appeal should remain in effect, be removed, or amended. Whether, or why, the condition was not addressed at the first attendance before the Committee is not a land use planning matter and relates only to the mechanics of the conduct of that first meeting of the Committee on September 17, 2020.

59So too is the Appellant’s assertion that she may have been denied procedural fairness by the Committee because the proposed inclusion of the Condition, referred to in the Planning Report before the Committee was not brought to her attention, also not a matter within the jurisdiction of the Tribunal in this Appeal. The Tribunal, in this proceeding, is required to attend to the adjudication of this Appeal under the Planning Act, and its mandate, and in that respect ensure procedural fairness in this Appeal.

60Similarly, whether, or what, “sufficient explanation” was provided to the Appellant’s representative at the time of the meeting of the Committee in September 2020 or March 2021 as to the justification or “rational basis” for imposing Condition 6 recommended by City Staff beyond what was contained in the Minutes of the meeting is not a valid ground for an appeal before the Tribunal. The Tribunal’s focus and jurisdiction relates only to the planning merits of the imposition of the Condition, and whether the condition is reasonable, having regard to the proposed severance of the Subject Property.

61Applying the principles and guidance set out in East Beach, as set out again in the case of Norris v. Waterloo (Region), 2004 CarswellOnt 5787, to the reasons in the Notice of Appeal, the Tribunal finds that there are no genuine, legitimate and authentic planning grounds or reasons identified in the Notice of Appeal that would affect a decision in a hearing and upon which the Tribunal could determine the reasonableness of Condition 6. Where, as is the case here, the entirety of the grounds set out in the Notice of Appeal relate only to the matters of procedural process and fairness provided by the Committee in conducting its meeting and making its decision, and such matters are not before the Tribunal for determination. These reasons and grounds advanced in the Notice of Appeal do not constitute apparent land use planning grounds in any respect, and there being no planning grounds, there is no basis for a determination of the Appeal before the Tribunal.

62Accordingly, with respect to those reasons in the Notice of Appeal, if they are, as the Tribunal has found, the only reasons and grounds for the Appeal that are properly before the Tribunal, given the findings and conclusions of the Tribunal, then the Tribunal would dismiss the Appeal. Upon the same findings, and for the same reasons, the Tribunal would also dismiss the Appeal pursuant to s. 19(1)(c) of the OLT Act as the proceeding would have no reasonable prospect of success.

Supplementary Reasons for Appeal – No Apparent Land Use Planning Grounds

63As indicated, if the Tribunal is incorrect in limiting the grounds and reasons before it only to those in the Notice Appeal, and if the Supplementary Reasons were considered not to be new reasons, and instead mere elaboration of the reasons in the Notice of Appeal, then the Tribunal would be required to also consider those reasons and grounds for the Appeal in deciding the City’s Motion.

64For the reasons that follow, it is the Tribunal finding that the Supplementary Reasons and grounds for the Appeal that are set out in the communication of June 15, 2022, also fail to disclose any apparent land use planning grounds upon which the Tribunal could determine that Condition 6 cannot be a condition to the giving of provisional consent and decide the Appeal. Upon the same findings and reasons, the Tribunal would conclude that the proceeding has no reasonable prospect of success. The Appeal should accordingly be dismissed.

65For precision of analysis, the additional grounds and reasons advanced by the Appellant in the Supplementary Reasons are summarized as follows:

(1) The City is not directly using funds collected from the Condition for a Planning Act purpose and thus there is no nexus between the Condition and the Planning Act. The Condition is instead being used as a general revenue collection mechanism.

(2) More precisely, the funds collected under the Condition, ostensibly for the purposes of the future urbanization of Homestead Drive, are being directed into the general revenues of the City and thus there is no Planning Act-compliant reconciliation between “money in” received under the New Roads Servicing Rate and “money out” if added to the City’s general revenues. The Committee did not receive the benefit of any evidence that the money collected from the Appellant under the Condition would be used to improve Homestead Drive.

(3) It is unreasonable to impose a discretionary condition that falls outside the intended scope of the discretion conferred by a statute.

66The evidence before the Tribunal, which is not contradicted, is that City Council formally approved planning and development policies within the City of Hamilton which included Policy L.3.4. There is no evidence to suggest that City Council did not have the authority to approve such policies to recover costs in relation to certain purposes such as those set out in Policy L.3.4.

67The evidence before the Tribunal indicates the following with respect to Policy L.3.4:

(1) The Policy imposes a mandatory cash contribution for a stated planning and development growth related purpose: “contributing toward the cost to urbanize existing rural roads, including local size storm sewer”.

(2) The imposition of the Condition is mandatory under the Policy, as the Policy provides that the requirement “shall” be imposed by the City when the pre-requisites are identified to exist.

(3) The policy identifies the qualifying planning-related application under the Planning Act that gives rise to the required condition of payment. What triggers the imposition of the Condition is any application to subdivide land under that Act.

(4) The policy requiring the Condition is not based upon any subjective determination relating to the specifics of the consent application or the proposed development, nor any site-specific factors.

(5) The Policy instead creates an objective classification of the lands to which the Condition for payment applies based upon two universally applied pre-requisites: (a) the geographic location of the property being subdivided within the City’s Urban Boundary Area; and (b) the adjacency of the lands to an existing road of rural cross section.

(6) The Policy then creates a calculable formula for the quantification of the amount payable. The Policy provides for City-determined rates that are universally applicable to any owner wishing to subdivide lands qualifying for the conditional payment. The rate is simply multiplied by the property frontage of the subdivided land.

68The Tribunal does not have the benefit of evidence identifying the manner in which the Financial Policies which include Policy L.3.4 were enacted but the uncontroverted evidence is that the imposition of this financial policy was Council approved.

69Based upon the identified nature of Policy L.3.4, and the Appellant’s stated reasons for challenging the imposition of the Condition, it is the Tribunal’s conclusion that the Appellant does not challenge the Condition itself but rather the Policy approved by Council that gives rise to the imposition of the Condition. Those are two different things.

70The Tribunal has no jurisdiction within an appeal under s. 53(19) of the Planning Act to determine whether the approval of a financial policy such as Policy L.3.4 by Council is properly within the powers of City Council and whether it is ultra vires, illegal or invalid. It is only the Court that may determine whether a financial-related by-law is invalid or illegal and such a determination occurs by a challenge to the Ontario Superior Court of Justice. As a Provincial tribunal created by statute, the Tribunal’s powers are limited to those powers also conferred by statute. Those powers do not include the power to challenge the validity of such enactments of City Council that created the binding policy. Any opportunity to challenge Policy L.3.4 in the Comprehensive Development Guidelines and Financial Polices was for another time and in another forum.

71The Tribunal has been referred by the Appellant to the decision of the Ontario Superior Court of Justice, Charter Construction Limited v. Ontario (Transportation), 2008 CanLII 21899 (ON SC) (“Charter”), as illustrating that the Appellant’s reasons for the Appeal relating to the actual use and connection of imposed permit fees to their collection are bona fide land use planning concerns to be adjudicated by the Tribunal. The Tribunal would instead consider this decision of the Court to be demonstrative of the distinction between the jurisdiction of the Ontario Superior Court of Justice and the Tribunal to determine whether a permit charge is invalid and consider the connection between a permit fee and the cost of services associated with the issuance of the permits. The Superior Court has jurisdiction, as the Charter case demonstrates, while the Tribunal does not.

72The Tribunal must accordingly accept Policy L.3.4 as an in-force financial policy, the operation of which is brought into play, and implemented, by the City under its powers, in accordance with its components outlined in paragraph 67 above. Its application is ubiquitous for all qualifying properties and identified planning applications.

73In this respect, the Appellant’s Supplementary Reasons, when examined, raise apprehensions and concerns as to how the City may receive and apply cash payments paid under Policy L.3.4 and generally ponders whether those specific monies collected from her by the City under Policy are really going to be used for the specific purpose identified in the Policy or instead of for general revenue purposes. Such expressed concerns and apprehensions regarding the appropriateness of financial Policy L.3.4, the accounting and financial operations of the City in processing such payments, and the City’s justification for collecting the cash payment, are all matters which relate to the Policy and not to the Condition imposed under the policy.

74Accordingly, it is the conclusion of the Tribunal that these stated reasons and grounds for Appealing the imposition of the Condition, as expressed in the Supplementary Reasons, do not represent apparent land use planning grounds that are properly within the jurisdiction of the Tribunal. While the Appellant may consider her concerns to be genuine, and the Tribunal may accept this, that the reasons are genuine is not enough to satisfy the East Beach principles. Applying the requirements of East Beach requires the Tribunal to also be satisfied that the reasons are legitimate and authentic planning reasons. As the reasons relate to a challenge to the Policy over which the Tribunal has no jurisdiction, instead of the Condition, they are neither legitimate or authentic. Accordingly, these grounds of the Appeal cannot be considered or determined by the Tribunal and are not worthy of adjudication.

75The denial of a nexus in the Appellant’s Supplementary Reasons assumes that the collected monies are not directed to the planning and development purpose identified in Policy L.3.4. In that respect, any challenge to the manner in which collected funds are administered by the City is not within the jurisdiction of the Tribunal in determining the Appeal now before the Tribunal.

76Contrary to the Appellant’s submissions, there is, in the Tribunal’s view, a clear nexus between the Condition and the Planning Act. The Appellant filed an application for consent to subdivide land on lands within the geographic area designated and adjacent to the identified type of road. The imposition of the Condition arises in relation to the Appellant’s planning application. The monies to be paid under the Condition are for planning and development purposes – namely the cost to urbanize existing rural roads and local size storm sewers.

77The Appellant’s Supplementary Reasons however do not challenge the qualification of the Subject Property for the imposition of the Condition, as recommended by City Planning staff. Nor does the Appellant raise any identifiable issue as to the way that this universal financial Policy was applied, and is being applied, to the Subject Property by the City. Such issues, grounds or reasons specific to the Subject Property, if raised, might possibly represent apparent land use planning grounds which might, in turn, impact the Tribunal’s determination of the Appeal, that being the appropriateness of imposing the Condition. That is not the case with the Appellant’s Supplementary Reasons.

78Finally, as to the reason expressed by the Appellant that it is “unreasonable to impose a discretionary condition that falls outside the intended scope of the discretion conferred by statute” it is the Tribunal’s view that this reason is neither genuine, legitimate or authentic. Again, in the Tribunal’s view, the Appellant is failing to distinguish between the enactment of financial Policy L.3.4 that requires the Condition, and the exercising of the discretion by the approval authority to apply that financial policy and impose the Condition.

79The components of the L.3.4 Policy have been reviewed. The Appellant has not challenged the triggering event of the application for consent, the geographic or road-adjacency qualification of the Subject Property for the imposition of the Condition nor the quantification formula applicable upon the imposition of the Condition, all of which would be relative to the Subject Property. Instead, the Appellant is challenging the Policy, and doing so upon an apprehension of misdirection of collected funds and upon assumption that evidence will be located to establish that funds collected under the Policy are not being used for their stated purpose. This ground for an appeal is not genuine, legitimate or authentic.

80The reasonableness of imposing a condition is indeed within the discretion of the Committee, and now the Tribunal, to consider under s. 51(25) of the Planning Act. The Appellant’s stated reason that the imposition of the Condition falls outside the intended scope of the discretion conferred by a statue is mistakenly predicated on the mis-directed attack upon Policy L.3.4, rather than the Condition.

81To summarize the Tribunal’s conclusions as to the Appellants stated Supplementary Reasons: it is wholly within the jurisdiction and scope of its discretion conferred by the Municipal Act for City Council to adopt a financial policy such as Policy L.3.4 ubiquitously applicable to all qualifying planning applications; it is wholly within the jurisdiction and scope of its discretion conferred by the Planning Act for the Committee or the Tribunal, as the approval authority, to impose a condition identified as applicable under Council’s financial policy; there is no unreasonableness to the separate exercise of that discretion conferred upon each of the two bodies; and more importantly the Appellant’s Supplementary Reasons have blurred the line between the two discretionary decisions, one by City Council and one by the Committee (and now, Tribunal). As such, the Appellant is advancing grounds for an Appeal that are not authentic or legitimate, are not worthy of adjudication, and have no reasonable prospect of success.

SUMMARY OF ANALYSIS AND DISPOSITION

82Upon the evidence and submissions presented, the findings of the Tribunal set out in this Decision, and the application of the applicable legislation and the law, the reasons or grounds to be considered in the City’s Motion to Dismiss are limited to those contained in the Appellant’s Notice of Appeal and not those set out in the Supplementary Reasons set out in the Appellant’s communications to the Tribunal and the City in June of 2022. Given the clear procedural requirements under the Planning Act, the Appellant is unable to expand the reasons in her appeal, after the Notice of Appeal has been filed and the statutory appeal period has passed.

83Having considered those reasons and grounds, and upon considering the evidence and submissions of the Parties, s. 53(31) of the Planning Act and the jurisprudence of the Tribunal inclusive of East Beach, the Tribunal has concluded that those reasons do not disclose any apparent land use planning ground upon which the Tribunal could determine that it is not reasonable that Condition 6 be imposed as a condition to the giving of provisional consent and that the proceeding, for the same reasons, has no reasonable prospect of success. The Appeal upon the reasons in the Notice of Appeal should therefore be dismissed.

84If the Tribunal is for some reason incorrect in its determination of the first issue, and the Supplementary Reasons subsequently provided by the Appellant may be validly before the Tribunal to be considered in the Motion as elaborating or expanding upon the original reasons provided in the Notice of Appeal, then the Tribunal, upon the same submissions, evidence, legislation and law, has concluded that those Supplementary Reasons provided subsequent to the Notice of Appeal, do not disclose any apparent land use planning ground upon which the Tribunal could determine that it is not reasonable that Condition 6 be imposed as a condition to the giving of provisional consent. Upon the same analysis, the proceeding has no reasonable prospect of success. The Appeal upon the reasons in the Notice of Appeal should therefore be dismissed.

85In granting the City’s Motion and dismissing the Appeal, it is unnecessary for the Tribunal to decide the Appellant’s Motion for Productions.

ORDER

86The Tribunal Orders that the City’s Motion dated November 11, 2022, is granted, and the Appeal is dismissed. Condition 6, together with all other conditions imposed on the provisional consent by the Decision of the City of Hamilton Committee of Adjustment, in Application No. GL/B-20:55, dated March 18, 2021, remain in effect.

87The Tribunal Orders that the Appellant’s Motion for Productions dated November 11, 2022, is dismissed.

“David L. Lanthier”

DAVID L. LANTHIER 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.