24051124 Ontario Ltd. v. Thunder Bay (City), 2023 CanLII 97676

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 18, 2023

CASE NO(S).: OLT-22-004679

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

Appellant: 24051124 Ontario Ltd.

Subject: By-law No. 100/2022

Description: To allow development of 14 sfd subdivision

Property Address: 3200 Lloyd Street

Municipality: City of Thunder Bay

Reference Number: Z-05-2021

OLT Case No.: OLT-22-004679

OLT Lead Case No.: OLT-22-004679

OLT Case Name: 24051124 Ontario Ltd. v. Thunder Bay (City)

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

Request by: City of Thunder Bay

Request for: Request for Dismissal Without a Hearing

Heard: April 4, 2023 by video hearing.

APPEARANCES:

Parties

Counsel

City of Thunder Bay

M. Grimaldi

24051124 Ontario Ltd. (Ian Bodnar)

R. Miault

DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened the first Case Management Conference (“CMC”) for the above matter. An appeal was filed against the decision of the City of Thunder Bay (“City”) to adopt By-law 100/2022 and the provisions of By-law 100/2022 that relate to the addition of a Holding Symbol to the property municipally known as 3200 Lloyd Street (“subject property”).

2Prior 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 23, 2023.

3The City is seeking an Order dismissing the appeal of 24051124 Ontario Ltd.(“Appellant”), without a hearing, in accordance with ss. 34(25) of the Planning Act, R.S.O. 1990, Chapter P.13 (“the Act”).

BACKGROUND

4The Tribunal heard the subject property is located in the southwest part of the City of Thunder Bay, generally between Highway 11 (Arthur Street West) and the Kaministiquia River. The property is a rectangular parcel having 202 metres (“m”) of frontage, 192 m of depth and an area of 4.1 hectares. It is located on the east side of this municipally owned, surveyed road allowance, which extends approximately 200 m immediately north of the end of existing open and maintained Lloyd Street. The subject property is vacant land, surrounded by low density, single detached dwellings which have municipal piped water service, and an intersecting railway line is located to the north east.

5The Tribunal heard that the purpose of the Appellant’s application to amend the Zoning By-law was to facilitate a future application for a partially serviced residential plan of subdivision comprised of lots for single detached dwellings. The lands are landlocked as there is no built and maintained City road extending across the lot frontage. The Appellant sought to have the Zoning By-law amended ahead of a future application for a Draft Plan Subdivision Approval.

6The Appellant sought to amend the Zoning By-law in order to set the regulatory framework in anticipation of submitting applications for lot creation. The proposed development plan is comprised of up to 14 lots for single detached dwellings, serviced with municipal piped water and private septic systems.

7The application proposed to have the rear lands rezoned from the “R5” Residential Future Development Zone to the same “R1” Residential One Zone as applies to the bulk of the subject property, to reduce the minimum required lot frontage and lot area established under By-law 1/2022 with respect to the entirety of the property.

8The Appellant undertook the clearing of vegetation on the property in 2012 in order to prepare the site for development and commenced an application to extend the road and municipal water through a local improvement petition initiative. To present day, the City generally rezoned all municipal water serviced lands to require a 10,000 square metre minimum lot area, unless a smaller size was supported by a Hydrogeological Study. The Lakehead Region Conservation Authority (LRCA) identified the subject property and other lands in the Neebing River watershed as either provincially significant or evaluated wetlands.

9The Appellant obtained City approval of the Hydrogeological Study allowing the subject property to be developed with a smaller minimum lot size, frontage and area. The Appellant further received Engineering approval for road construction by way of consent and a development agreement and paid the required deposit for the preparation of the Development Agreement.

10The zoning application was considered and approved by Council.

11On advice of Planning Services, the entire property was placed into the H-Holding zone.

12The Tribunal was informed that the "H" - Holding symbol would be removed once the developer has received draft plan approval for a plan of subdivision and has entered into a Subdivision Agreement with the City which included the establishment of a no build area near the railway corridor and amend the lot frontage and area requirements.

13The Appellant appealed By-law 100/2022 as to what they believe to be an “overly restrictive “H” zoning provision.” The Appellant takes issue with the imposition of a holding symbol on the entirety of the property rather than just the Rear Portion, which was the only portion subject to rezoning in the initial application.

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:

16Exhibit 1 – City’s Affidavit of Service dated March 23, 2023

i. City’s Factum

ii. City’s Book of Authorities

iii. City’s Reply Statement

17Exhibit 2 – Appellant’s Affidavit of Service dated March 27, 2023

i. Appellant’s Document Book

SUBMISSIONS OF THE CITY

18The City expressed that the addition of a holding symbol to a property is governed by s. 36 of the Act which reads in its entirety;

“The council of a local municipality may, in a by-law passed under section 34, by the use of the holding symbol “H” (or “h”) in conjunction with any use designation, specify the use to which lands, buildings or structures may be put at such time in the future as the holding symbol is removed by amendment to the by-law. R.S.O. 1990, c. P.13, s. 36 (1).”

19The Tribunal heard that Appeals of holding symbols are governed by s. 36(3) of the Act which reads in its entirety;

“Where an application to the council for an amendment to the by-law to remove the holding symbol is refused or the council fails to make a decision thereon within 90 days after receipt by the clerk of the application, the applicant may appeal to the Tribunal and the Tribunal shall hear the appeal and dismiss the same or amend the by-law to remove the holding symbol or direct that the by-law be amended in accordance with its order. 2017, c. 23, Sched. 3, s. 11 (1); 2019, c. 9, Sched. 12, s. 8 (1).”

20The Tribunal was informed that the placement of a holding symbol on a property falls exclusively within the jurisdiction of the municipality. An appeal to the Tribunal is only authorized where a municipality refuses or fails to respond to a request to remove a holding symbol from a property.

21The City provided that the Tribunal has recognized its limited jurisdiction relating to holding symbols in prior decisions.

Waterloo West Community Association v Waterloo (City), 2020 CarswellOnt 8763, City’s Book of Authorities Tab 4 at para 11.

“The intention of the Act is to place the responsibility for imposing, and then removing, the H on the shoulders of the municipality. An appeal to the Tribunal may only be made by the proponent and only in the circumstance where the municipality has refused to remove the H or has failed to make a decision within a specified period of time. Put another way, WWCA would not be able to file an appeal of the City's decision to remove the H.”

22The City noted that the Appellant appeals the entirety of By-law 100/2022and the reasons for appeal make clear that they only take issue with the provisions of the by-law which apply a holding symbol to the subject property. As the Appellant has made no request to the municipality to remove the holding symbol, the appeal is premature.

23The Tribunal heard that the Appellant has not met the requisite preconditions for an appeal under s. 36(3) and appears to have no other concerns regarding By-law 100/2022.

24The City submits that the appeal discloses no apparent land use planning ground upon which the appeal could be allowed and should be dismissed without a hearing pursuant to s. 34(25)(1)(i) of the Act.

25The City further submits that the Tribunal should conclude that this appeal has no reasonable prospect of success and therefore should be dismissed without a hearing pursuant to section s. 19(1)(c) of the Ontario Land Tribunal Act, 2021, S. O. 2021, c .4, Sched. 6 (“OLTA”).

26The City suggested that since the Appellant only raises concerns regarding the provisions of By-law 100/2022 that add a holding symbol to the subject property, the Tribunal should consider this an appeal under s. 36(3) of the Act. Since the Act only contemplates appeals from a refusal, or failure to respond to, a request to remove a holding symbol and the appellant has not yet made such a request to the municipality, the Tribunal should conclude that the Appellant lacks standing to bring this appeal. As a result, the Tribunal should dismiss this appeal without a hearing pursuant to s. 4.6(1)(c) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22. and s. 19(1)(d) of the OLTA.

27The City respectfully requested an order dismissing the appeal of By-law 100/2022 without a hearing.

SUBMISSIONS OF THE APPELLANT

The Appellant is Not Appealing Pursuant to Subsection 36(3):

28The City argues that any and all appeals involving holding symbols should be governed by ss. 36(3) of the Act, which reads:

Appeal to Tribunal

(3) Where an application to the council for an amendment to the by-law to remove the holding symbol is refused or the council fails to make a decision thereon within 90 days after receipt by the clerk of the application, the applicant may appeal to the Tribunal and the Tribunal shall hear the appeal and dismiss the same or amend the by-law to remove the holding symbol or direct that the by-law be amended in accordance with its order Planning Act, R.S.O. 1990, c. P.13 ss. 36(3).

29The Appellant acknowledges that they have not met the prerequisites for an appeal under ss. 36(3). On this basis, the City argues that the Appellant’s appeal is premature. The City provided in support of this argument that this appeal is properly governed by ss. 36(3), by relying on the case of Waterloo West Community Association v Waterloo (City), 2020 CarswellOnt 8763 (“Waterloo”).

30The Appellant provided that the facts of Waterloo are distinguishable from the facts of the case at bar, for instance, in Waterloo:

a. The appellant appealing the imposition of the holding symbol is not the property owner, but rather, is a third party; and

b. The issue was not whether the imposition of the holding symbol was inconsistent with the relevant official plan and provincial policy statement(s), but instead, whether it is appropriate to use a holding symbol rather than require the property owner to go through a rezoning process for any plans it may have for a new and expanded use of the property. Waterloo at para 15.

31The Tribunal heard that the Appellant in Waterloo was attempting to force the property owner to go through the rezoning process for each and every new and expanded use of the property in order to create appeal rights for the third party appellant where no such right existed (since the removal of the holding symbol would not have been appealable). Waterloo at para 16.

32The Appellant submits that their appeal is to the imposition of the holding symbol on the rear portion of the subject property, which is inconsistent with the Provincial Policy Statement, 2020 (the “PPS”), and does not conform with the Growth Plan for Northern Ontario (the “GPNO”) and the City of Thunder Bay’s Official Plan (the “OP”).

33Thus, the Appellant provided that Waterloo is fundamentally different from the facts of the case at bar.

34The Appellant provided that pursuant to ss. 3(5) and 24(1) of the Act, the City is only permitted to pass bylaws which are consistent with the relevant policy statements, provincial plans and official plans.

Policy statements and provincial plans

3 (5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Tribunal, in respect of the exercise of any authority that affects a planning matter,

(a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision; and

(b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.

Public works and by-laws to conform with plan

24 (1) Despite any other general or special Act, where an official plan is in effect, no public work shall be undertaken and, except as provided in subsections (2) and (4), no by-law shall be passed for any purpose that does not conform therewith. Planning Act, R.S.O. 1990, c. P.13 ss. 3(5) and ss. 24(1).

35The Appellant’s argument is the imposition of a holding symbol ab initio. The Appellant therefore is appealing the by-law itself, not the failure of the Defendant to remove the holding symbol.

36The Tribunal heard that appeals which relate to an alleged inconsistency and non-conformity with the PPS, GPNO and Plan (or equivalent documents for the relevant municipality) properly proceed pursuant to ss. 34(19). Ontario (Municipal Affairs and Housing) v. Norfolk (County), 2016 CarswellOnt 1818.

37The Appellant provided that their appeal is properly governed by ss. 34(19), which provides:

Appeal to Tribunal

19. Not later than 20 days after the day that the giving of notice as required by subsection (18) is completed, any of the following may appeal to the Tribunal by filing with the clerk of the municipality a notice of appeal setting out the objection to the by-law and the reasons in support of the objection, accompanied by the fee charged by the Tribunal:

1. The applicant.

2. A person or public body who, before the by-law was passed, made oral submissions at a public meeting or written submissions to the council.

3. The Minister.

Planning Act, R.S.O. 1990, c. P.13 ss. 34(19).

38The Appellant stated that the only prerequisites to appeal pursuant to ss. 34(19) are that:

I. the Appellant has received notice that a by-law has been passed;

II. the Appellant files a notice of appeal within 20 days of receiving such notice with the required reasons; and

III. the Appellant is one of the parties enumerated in paragraphs 1-3. The Appellant has satisfied all such prerequisites.

39Further, the appeal is not premature and should not be dismissed without a hearing on the basis that the Appellant has not met the pre-requisites set out in ss. 36(3).

40The City argued that allowing an appeal which involves the imposition of a holding symbol to proceed under ss. 34(19) would render ss. 36(3) redundant and incompatible with the other provisions of the Act.

41The Appellant provided that the proper interpretation of ss. 36(3) is that this subsection applies if, and only if, there has been an application to remove a holding symbol and the council either refuses or fails to make a decision.

42Further, allowing the appeal to proceed pursuant to ss. 34(19) will not render ss. 36(3) redundant. Specifically:

a. ss. 36(3) would be the proper appeal route for a party who has made an application to remove a holding symbol and the council either refuses or fails to make a decision on same; and

b. ss. 34(19) would be the proper appeal route for a party who is objecting to a by-law, including but not limited to situations in which the appellant alleges that either the entirety or a portion of such bylaw is inconsistent with the provisions of the Act.

43The Appellant stated that removing a holding symbol and appealing the right to impose one are fundamentally different tasks. Thus, both ss. 36(3) and 34(19) can co-exist and each applies in different and unique scenarios. There is no redundancy or incompatibility.

The Appeal has a Reasonable Prospect of Success

44The City stated without thorough explanation, that the Appellant’s appeal has no reasonable prospect of success and should therefore be dismissed without a hearing.

45The Tribunal was informed that within the Appellant’s expert’s report, they are of the opinion that the current form of By-law 100/2022 is not consistent with the PPS, and does not conform to the GPNO nor the OP.

46The Tribunal was further informed that pursuant to the Act, the City is required to conform to policy statements, provincial plans, and official plans. Planning Act, R.S.O. 1990, c. P.13 ss. 3(5) and ss. 24(1).

47The Appellant provided that this Tribunal (or its predecessor) has overturned by-laws on the basis that such by-law is inconsistent with the relevant provincial policy statement and official plan.Ontario (Municipal Affairs and Housing) v. Norfolk (County), 2016 CarswellOnt 1818 at paras 10-11.

48The Appellant submits that it has a reasonable prospect of success and the appeal should proceed to a hearing.

REPLY SUBMISSIONS OF THE CITY

49The City states that the Appellant argues their appeal is properly characterized as an appeal under s. 34(19) because they raise concerns with the consistency between By-law 100/2022, the PPS, the GPNO, and the OP.

50The City submits that the only issue raised by the Appellant, as set out in the affidavit of their expert planner, are issues relating to the imposition of the holding symbol and that the only remedy the appellant seeks is an amendment to By-law 100/2022 that would remove the holding symbol from the front portion of the subject property.

51The City further submitted that the substance of the Appellant’s expert planning evidence indicate they only take issue with the clauses of By-law 100/2022 that apply a holding symbol to the subject property. As the Act only provides authority to appeal holding symbols in s. 36(3) it is clear this appeal is properly characterized as an appeal under that section. Regardless of why they object to the imposition of a holding symbol, the Appellant cannot transform what is effectively an appeal under s. 36(3) into an appeal under s. 34(19).

52The City provided that the Appellant’s theory would render the entirety s. 36(3) redundant. The Act, through s. 36(1), requires a municipal council to apply (and remove) a holding symbol via a by-law adopted under s. 34. of the Act.

53The City stated that if the Appellant argues that the application (or removal) of a holding symbol is subject to the appeal provisions found in s. 34 of the Act than a property owner’s right to appeal holding symbol provisions are already fully preserved via s. 34(11) (governing appeals of refusal or non-decisions of applications for by-law amendments) and s. 34(19) (governing appeals of the passage of by-law amendments) of the Act. There would be no appeal rights granted by s. 36(3) that are not already granted through the relevant subsections of s. 34.

54The City provided an established principle of law that the legislature does not speak in vain, the appellant’s theory that the holding symbol clauses of By-law 100/2022 are appealable under s. 34(19) should be rejected. Precureur General De La Province De Quebec c Carrieres Ste-Therese Ltee, 1985 CanLII 35 (SCC), 1985 CarswellQue 85, SCC 1985 at para 27.

55The City submitted that the Appellant’s theory would lead to an absurd result. It appears uncontested that the holding symbol applied to the subject property could not be appealed prior to an application to remove if the holding symbol was applied via a separate by-law rather than via a clause in By-law 100/2022. It cannot be the case that Council created an appeal right where none existed simply because it chose to proceed efficiently and adopt a single by-law for the subject property rather than two.

56The Tribunal heard that the Supreme Court has stated that an interpretation of legislation may be considered absurd where it is incompatible with other provisions or the purposes of the legislation. Re Rizzo & Rizzo Shoes Ltd, 1998 CanLII 837 (SCC), 1998 CarswellOnt 1, SCC 1998 at para 27.

57The Act sets out its purposes in s. 1.1 and s. 1.1(d) and specifically states the Act’s purposes include providing, “for planning processes that are fair by making them open, accessible, timely and efficient” Planning Act, R.S.O. 1990, c. P. 13 s. 1.1(d).

58The requirement that a municipal council apply holding symbols only through a separate by-law in order to avoid creating additional appeal rights where none previously existed defeats the purposes of the Act in two ways. First, it makes planning decisions less efficient by requiring the preparation, consideration, and passage of additional unnecessary by-laws. Second, it makes the planning process less accessible because it demands additional attention and consideration from the public.

59As such, the appellant’s theory that the clauses of By-law 100/2022 are appealable under s. 34(19) of the Act should be rejected.

ANALYSIS AND FINDINGS

60The Tribunal’s authority for dismissing an appeal is found in s. 34(25) of the Act, which sets out a list of grounds that are disjunctive, meaning the moving Party need only demonstrate that one has been satisfied to be successful on a Motion to Dismiss.

61S 34(25) states:

Dismissal without hearing

34(25) Despite the Statutory Powers Procedure Act and subsection (24), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that,

I. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

II. the appeal is not made in good faith or is frivolous or vexatious,

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

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

62In addition, s. 19(1) of the OLTA addresses, in general, the dismissal of an appeal without a hearing and states, in part:

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…

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

63The City offered that the Appellant appeals the entirety of By-law 100/2022. The purpose of the appeal relates to the provisions of the by-law which apply a holding symbol to their property.

64The City further offered, as the Appellant has made no request to the municipality to remove the holding symbol, their appeal is premature.

65The Tribunal does not agree.

66The Tribunal acknowledges that while s.36(1) establishes a municipality’s ability to impose holding provisions, s.36(3) only provides an appeal route following a failure or refusal to lift the holding provision. It is silent on an appeal about the imposition of the holding provisions in the first place.

67The Tribunal reviewed the City’s notice of motion indicating “The Tribunal has recognized its limited jurisdiction relating to holding symbols in prior decisions” and mentions Waterloo, City’s Book of Authorities Tab 4 at para 11.

11 The intention of the Act is to place the responsibility for imposing, and then removing, the H on the shoulders of the municipality. An appeal to the Tribunal may only be made by the proponent and only in the circumstance where the municipality has refused to remove the H or has failed to make a decision within a specified period of time.

68Rephrasing the above quotation, WWCA would not be able to file an appeal of the City's decision to remove the H.

69The Tribunal refers to a decision when s.36 was called s.35, where the framework has remained the same despite other amendments to the Act from Re Toronto (City) Official Plan Amendment 333, 1986 CarswellOnt 3656, 33 M.P.L.R. 177.

Para 111: “Appeals to the Board are allowed from a zoning by-law passed under s. 34, as occurred in the case of the by-laws now before the Board. When it comes to a by-law to remove a holding symbol and matters of site planning within s. 40, the Act provides for an appeal only by the applicant. In the case of a by-law to remove an "H", the Act contemplates that such removal be done by a by-law amendment but expressly deletes the wider appeal provisions contained in s. 34.”

70The Tribunal referred to:

2206211 Ontario Inc. v. Pickering (City), 2016 CanLII 50758 (ON LPAT)

71The Applicant appealed to the Board the conditions required for the removal of the Holding Symbol on the basis that they are either redundant or are improper holding provisions.

Hayes Line Properties Inc. v. Pickering (City) 2002 CarswellOnt 7047

72An appeal of non-decision of ZBLA. The Tribunal found in that instance that “There is no basis for imposing "Holding" zoning.”

Westminister Woods Ltd. and and Reid Heritage Homes Ltd. V. Guelph (City), 2017 CanLII 63276 (ON LPAT)

73The ZBA contained a holding provision pertaining to road upgrades. Westminister Woods Ltd. and Reid’s Heritage Homes Ltd. (the “Appellants”) appealed the ZBA, specifically the holding provision, to the Ontario Municipal Board (the “Board”), pursuant to s. 34(19) of the Act, R.S.O. 1990, c. P. 13, as amended .

74Based on the above, the Tribunal is of the opinion that an appeal under 34(19) can challenge the imposition of a holding provision.

75The Tribunal finds that the Appellant has met the provisions of ss.34(25) of the Act and ss. 19(1) of the OLTA. The Appellant has provided to the Tribunal that they intend to provide expert land planning opinions and that their intentions are clearly in good faith. Further, the Tribunal finds that the proceeding may well have a reasonable outlook for success.

76On 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, the Appellant does not believe that Zoning By-law 100/2022 is consistent with the PPS, or conforms with the GPNO and the OP. The Tribunal finds that those reasons on their own represent sufficient reasons to validate the Appellant’s appeal.

77The Tribunal finds that the Applicant’s appeal has provided a sufficient basis to be considered as a valid appeal. Their submissions have been consistent 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.

ORDER

78UPON APPEAL to this Tribunal by 24051124 Ontario Ltd. against the approval of By-Law 100/2022 with a Holding Symbol;

79AND UPON MOTION to this Tribunal by The City of Thunder Bay for an Order dismissing the appeal under subsection 34(25)(1)(i) of the Planning Act and 19(1)(c) of the Ontario Land Tribunal Act and after the hearing of the motion;

80THE TRIBUNAL ORDERS that the Motion to dismiss the appeal is denied.

“Carmine Tucci”

CARMINE TUCCI

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.