6980848 Canada Corporation v. Ottawa (City), 2024 CanLII 106134

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 23, 2024

CASE NO.: OLT-24-000746

PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 6980848 Canada Corporation

Subject: Proposed Plan of Subdivision - Refusal by Approval Authority

Description: To permit a plan of subdivision consisting of 71 residential lots.

Reference Number: D07-16-24-0001

Property Address: 1600 Stagecoach Road

Municipality/UT: Ottawa

OLT Case No.: OLT-24-000746

OLT Lead Case No.: OLT-24-000746

OLT Case Name: 6980848 Canada Corporation v. Ottawa (City)

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

Request by: 6980848 Canada Corporation

Request for: Request for Directions

Heard: October 17, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

6980848 Canada Corporation (“Sunset Lakes”)

K. Gossen G. O’Brien

City of Ottawa (“City”)

T. Marc

DECISION DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This first Case Management Conference (“CMC”) was convened for Sunset Lakes’ Appeal under s. 51(39) of the Planning Act (“Act”) to the City’s refusal to approve a Draft Plan of Subdivision (“Subdivision”) at 1600 Stagecoach Road (“site”) in the Village of Greely (“Village”).

2The City’s Affidavit of Service for Notice of this CMC was marked as Exhibit 1 (“Ex. 1”).

3No requests for Party or Participant Status were received.

4The Parties agreed that the outcome of Sunset Lakes’ Motion, addressed below, would determine the next steps. If the Motion is granted, the Parties will aim to develop, on consent and without the need for a second CMC, a draft Procedural Order with a scoped Issues List, and will request the scheduling of Hearing days. If the Motion is denied, the City will request that the Appeal be dismissed.

5The Tribunal allows the Motion below.

MOTION

6The Parties agree that the circumstances necessitating this Motion are unusual, if not unique, in Ontario’s planning history.

7In simple terms, the Tribunal is asked to determine the land use designation of this site on the date the City declared Sunset Lakes’ Subdivision Application complete. The complexity arises from the sequence of events involving this site’s land use designation.

Chronological Events

8On November 24, 2021, the City adopted a new Official Plan (“OP”), designating this site as “Rural Countryside,” being outside of, but abutting, the Village boundary.

9On November 4, 2022, the Minister of Municipal Affairs and Housing (“MMAH”) modified and approved the OP, including a modification that placed this site within the Village boundary, but did not change the specific land use designation.

10On September 13, 2023, the City adopted Official Plan Amendment 5 (“OPA 5”) containing many amendments to the new OP, including building upon the MMAH modification by designating this site as “Village” in the OP and as “Village Residential” in the Greely Secondary Plan (“SP”). MMAH approval was not required, and no appeals were filed. OPA 5 came into full force and effect.

11On December 6, 2023, Bill 150 came into effect, which included the Official Plan Adjustments Act (“OPAA”) deeming modifications to the new OP to have never been made [s. 1(1)] and retroactively approving the OP as of November 4, 2022 [s. 1(3)].

12On February 7, 2024, given the recent retraction of modifications by the OPAA, City Council requested the MMAH to introduce legislation that would retroactively remove from OPA 5 the land use designation changes pertaining to this site.

13On February 23, 2024, the City declared Sunset Lakes’ Subdivision Application as complete.

14On December 19, 2023, the City advised Sunset Lakes that its site is no longer in the “Village” designation and is not eligible for draft Subdivision approval.

15On May 16, 2024, Bill 162 came into effect with ties back to Bill 150, but made no changes affecting this site.

16On June 19, 2024, the City advised Sunset Lakes that its Subdivision Application is refused.

17On or about July 11, 2024, the City initiated a draft OPA 35 to place this site outside the Village boundary and to return its designation to “Rural Countryside.” As of the date of this hearing, OPA 35 was endorsed by City Council for adoption but has not yet been passed.

Party Positions

Sunset Lakes

18Sunset Lakes’ Motion asks the Tribunal to find that OPA 5 is in full force and effect, designating this site as “Village” in the OP and as “Village Residential” in the SP. This designation, today and at the time of Sunset Lakes’ complete Subdivision Application, would enable the Subdivision to be considered for approval.

19Sunset Lakes argues that there is no ambiguity in the application of the law. The OPAA designated this site as “Rural Countryside,” retroactively to November 4, 2022 when the MMAH approved the OP. From November 4, 2022 forward, the site was designated as “Rural Countryside.” Then, on September 13, 2023, the City adopted OPA 5 which changed the designation to permit “Village” residential development. Although the City requested the MMAH to include legislation that would extinguish OPA 5 pertaining to this site, no such wording was included in Bill 162 or elsewhere.

20Sunset Lakes submits that the City’s previous request to the MMAH and its proposed OPA 35 to return this site’s designation to “Rural Countryside” confirm the existence and City acceptance of OPA 5 being in force and effect.

21Sunset Lakes concludes by referencing OPAA s. 3(1) and (2) which it submits enables a specific amendment to be passed after the retroactive date of OP approval. OPA 5 is one such example.

City

22The City argues that for this site, OPA 5 was necessary and intended only to implement the MMAH modification, as clearly stated within Amendment 66 of OPA 5 (Ex. 2, p. 342).

23The City submits that the Hansard of the Ontario Legislature of November 20, 2023 (Ex. 3c) confirms the intentions of the OPAA, citing such references as: the reversal of these MMAH decisions would be “retroactive” and applications in progress “would be required to conform with the municipality’s official plan” (pp. 4 and 7); and reverse the MMAH modifications to “more accurately reflect the local community’s priorities” (pp. 6 and 7). Thus, the City contends that the OPAA requires an application to conform with the OP as it read on November 4, 2022 without the MMAH modification. The City argues that the designation is “Rural Countryside” and outside of the Village boundary, which do not permit a residential Subdivision.

24The City reads the OPAA s. 3(2) differently than does Sunset Lakes. The City submits that conformity is required with the OP as it reads after the removal of the original modifications, i.e., this site is “Rural Countryside.” Only issued building permits were enabled to proceed if somehow caught by the reversal of modifications.

25The City argues that it was prudent for it to request the MMAH to clarify the site’s designation through further legislation. This request was not an admission of OPA 5’s in-force status for this site and did not undermine the City’s interpretation of the OPAA that the site remains designated as “Rural Countryside.”

Findings

26The Tribunal finds that the City is unfortunately caught by a unique conundrum. In effect, one might conclude that the City is suffering from its own efficiency. Had the City not pursued OPA 5 to fully implement the MMAH modification, this site would not be eligible for development today.

27Following the MMAH modification to designate this site for development, the City duly amended its OP to implement the appropriate designations of “Village” in the OP and “Village Residential” in the SP. However, the OPAA “turned back the clock” and designated this site as “Rural Countryside.” That change resulted in OPA 5 being the first time this site was designated for residential development within the Village.

28As advanced by Sunset Lakes, it aids one’s understanding to pretend that the original modification never happened. The OP did not allow development on this site, and via OPA 5, it now does.

29The Tribunal accepts the position of Sunset Lakes on the OPAA s. 3(2). There is no dispute about retroactivity. Today we know that the MMAH retroactively granted approval of the OP, with its designation of “Rural Countryside” on this site, effective November 4, 2022. However, s. 3(2) requires a decision of a Municipality or the Tribunal made under the Planning Act to conform with the OPAA-approved OP “while that approval is in effect.” Here, the OP, approved in 2022, was subsequently amended by the City’s OPA 5 in 2023. Thus, the MMAH-approved version of the OP for this site is no longer in effect.

30OPA 5 is the in-force OP designation for this Subdivision Appeal before the Tribunal. The Tribunal agrees with Sunset Lakes that the undoing of a modification cannot and does not revoke a separate, subsequent OPA.

31OPA 5 itself is not before the Tribunal for adjudication. The Tribunal cannot “undo” OPA 5. It is background factual evidence, upon which the Tribunal may make findings on relevant matters for this Subdivision Appeal.

32The Tribunal accepts the City’s interpretation of the Hansard record that the Legislature’s intention was to reflect and enable a Municipality’s planning priorities. Unfortunately for the City, the sequence of events in this case did not implement the City’s preference. The retroactivity of the OPAA, while based on good intentions, resulted in the City’s initiative through OPA 5 to establish a land use designation it did not originally want.

33This Decision is founded on the Tribunal’s authority to “hear and determine all questions of law and fact with respect to all matters within its jurisdiction” (s. 8(2), Ontario Land Tribunal Act). The Subdivision approval sought by Sunset Lakes requires the Tribunal to have regard for “whether the plan conforms with the official plan” [Planning Act s. 51(24)(c)]. This obligation connects OPA 5 to this Appeal.

34This Decision confirms the site’s OP land use designation only. The OP, as amended by OPA 5, identifies this site as: within the Village boundary; “Village” in the OP; and “Village Residential” in the SP.

35The Parties agree that, should this Subdivision Application proceed, its merits under all relevant sections of the Act must be established.

ORDER

36THE TRIBUNAL ORDERS that the Motion is granted, and the Parties are directed to proceed in accordance with paragraph [4].

“S. Tousaw”

S. tousaw

VICE CHAIR

Ontario Land Tribunal

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

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