Davis v. York (Regional Municipality), 2024 CanLII 106147

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 24, 2024

CASE NO(S).: OLT-24-000494

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 1000439324 Ontario Inc. Appellant: Pamela Harakh and Harry Harakh Appellant: Darryl and Teresa Davis Subject: Proposed Official Plan Amendment No. 18.6 (Village Local Centre) Municipality: City of Richmond Hill OLT Case No.: OLT-24-000494 OLT Lead Case No.: OLT-24-000494 OLT Case Name: Davis v. York (Regional Municipality)

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

Request by: Sunup Realty Inc. and Lalu 26 Benson Holding Inc. (jointly) Request for: Request for Directions from the Tribunal to the Regional Municipality of York to issue notice pursuant to subsection 17(35) of the Planning Act to Sunup Realty Inc. and Lalu 26 Benson Holding Inc. regarding the Regional Municipality of York Council’s approval of Official Plan Amendment No. 18.6

Heard: October 4, 2024 by written Motion

APPEARANCES:

Parties	Counsel
City of Richmond Hill	Raj Kehar Carlton Thorne
Sunup Realty Inc.	Katarzyna Sliwa Max Reedijk
Lalu 26 Benson Holding Inc.	David Bronskill

DECISION DELIVERED BY A. Mason AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision arises from a written Motion seeking the Tribunal to direct the Regional Municipality of York (“Region”) to issue notice pursuant to s. 17(35) of the Planning Act (“Act”) to Sunup Realty Inc. (“Sunup”) and Lalu 26 Benson Holding Inc. (“Lalu”) (together “Moving Parties”) of the Region’s approval of the City of Richmond Hill (“City”) Official Plan Amendment No. 18.6 (“OPA 18.6”). The Moving Parties seek this relief so that they may file appeals of OPA 18.6 within the statutory timeframe under the Act.

2The Moving Parties take the position that Groundswell Urban Planners Inc. (“Groundswell”), their urban planning consultant, requested that notice of the decision of the Region be provided to it but that such notice was only provided to a specific employee of the company, not the company itself. When the Region provided notice of its approval of OPA 18.6 to the Groundswell employee email on March 26, 2023 (“Notice”), the Moving Parties claim the Notice did not fulfill the Region’s obligations under s. 17(35) of the Act as it should have been sent to Groundswell at its mailing address. As a result, the Moving Parties claim their clients were prejudiced by missing the opportunity to duly file an appeal within the time frame set out in the Act. Furthermore, the Moving Parties claim that the Region was aware of their interest in OPA 18.6 as evidenced through participation in the public process.

3The threshold issue to be answered by the Tribunal on the Motion is whether the Notice that was provided by the Region to Groundswell at its employee’s email satisfied the requirements under the s. 17(35) of the Act. To do so, the Tribunal must consider: (1) the method of service prescribed under s. 17(35) and s. 8(4) of Ontario Regulation 543/06 (“O. Reg. 543/06”); (2) whether there is an obligation for an approval authority to confirm receipt of notice provided under s. 17(35); and (3) whether participation in the public process imports an obligation for the Region to have provided notice to that party.

4If the Tribunal concludes the Notice was defective as claimed by the Moving Parties, it must then consider whether: (1) the Tribunal has the jurisdiction to order the Region to re-issue the Notice to the Moving Parties so that they may then file their appeals within the required time period; and (2) in consideration of the passing of Bill 23 and Bill 185 with the result that the Region is now stripped of its role as approval authority, whether such “re-issued” Notice would be directed to come from the Region or the City in its new capacity as the approval authority.

5Having considered the legal and evidentiary submissions of the Parties, the Tribunal refuses the request of the Moving Parties and finds that Notice was properly issued by the Region in the first instance. Having found that Notice was properly issued, the Tribunal need not consider those questions in paragraph [4] above.

BACKGROUND

6For the Motion, affidavit evidence was provided to the Tribunal on behalf of the Moving Parties by Eldon Theodore, a Registered Professional Planner. Affidavit evidence was provided for the City by Sonja Meehan, a Registered Professional Planner at the Region. Both Affiants detailed the history of communications between the Parties with respect to OPA 18.6 for the benefit of the Tribunal and key facts are set out here.

7Sunup is the owner of 10350 Yonge Street and Lalu is the owner of 10366 Yonge Street and 26 Benson Avenue, lands that are all within the boundaries of OPA 18.6.

8The Moving Parties participated in the public process leading to the City’s adoption of OPA 18.6 through their urban planning consultants, Groundswell and MHBC Planning, Urban Design & Landscape Architecture (“MHBC”). On October 31, 2023, Groundswell and MHBC provided a joint submission to the City requesting revisions to OPA 18.6 on behalf of the Moving Parties. Subsequently on November 17, 2023, Groundswell and MHBC engaged in a follow-up discussion with City staff to review the requested revisions.

9During the time of the City’s adoption of OPA 18.6, the Region was the upper-tier approval authority pursuant to s. 17 of the Act. On November 29, 2023, the City adopted OPA 18.6 through the passing of By-law No. 133-23. On December 4, 2023, the City forwarded a record of adoption to the Region for consideration pursuant to s. 17(31) of the Act.

10By letter sent by regular mail dated December 11, 2023, Ms. Quianna Castro, a Junior Planner at Groundswell, submitted a request to the Region for notice of the adoption of OPA 18.6 (“Request Letter”). The Request Letter is brief and states simply that “Groundswell Urban Planners Inc. would like to request to receive Notice of the Decision from the Region…in regards to Amendment No. 18.6 to the Richmond Hill Official Plan” [emphasis added]. The signature line under Ms. Castro’s name sets out their position as Junior Planner and their individual email address at Groundswell. The footer on the Request Letter includes Groundswell’s mailing address and phone number but does not include a general email address for the company. The Request Letter did not indicate that Groundswell was requesting the Notice on behalf of the Moving Parties, or anyone else’s behalf, and no other persons or entities were copied on the correspondence.

11On January 15, 2024, Ms. Meehan, on behalf of the Region informed Ms. Castro by email that she had been added to the Region’s notice of decision notification list for OPA 18.6 at the email address in the Request Letter. There was no response from Ms. Castro or Groundswell.

12On March 26, 2024, the Region issued the Notice disseminating its decision to approve OPA 18.6 and indicating that the last day of appeal was April 15, 2024. The Notice was sent only to Ms. Castro via email to her Groundswell email address. By the date the Notice was sent, it is alleged that Ms. Castro was no longer employed at Groundswell. The Region’s email to Ms. Castro did not “bounce back” with an automatic message advising that Ms. Castro was no longer at Groundswell or that correspondence should be sent to another contact at the company.

13On May 1, 2024, Mr. Heath Purcell-Sharp, a Planner at Groundswell, followed up on an email chain between himself and Mr. Brian DeFreitas, Senior Planner at the City, inquiring about the status of the Region’s adoption of OPA 18.6 and another unrelated official plan amendment. Mr. Purcell-Sharp does not indicate he is following up on behalf of the Moving Parties. Mr. DeFreitas responded that the Region had issued the Notice on March 26, 2024 for both official plan amendments. As previously indicated, the Notice set out that appeals must be filed by April 15, 2024. As such, by May 1, 2024 when Mr. DeFreitas advised Mr. Purcell-Sharp that the Region had adopted OPA 18.6, the appeal window was already closed.

14The Tribunal notes that in the exchange of material in consideration of the Motion, the City filed a Surreply to the Reply Motion Record of the Moving Parties without prior permission of the Tribunal. The Tribunal allowed this extraordinary submission in the interest of fairness to the Parties since the fundamental right to appeal is at stake in the Motion. A right of reply was also granted to the Moving Parties limited to those issues raised in the City’s Surreply and the Tribunal prohibited any further submissions from the Parties.

PRELIMINARY MATTERS

1. What is the Role of the Region at the Motion Due to Bill 23 and Bill 185?

15At a prior Case Management Conference (“CMC”) on August 29, 2024, at which the Motion was set down, the Tribunal, similarly constituted, was provided with correspondence from the Region advising that it would not be participating in the CMC. The Region explained that it was no longer the approval authority with responsibility for OPA 18.6 due to the adoption of Bill 23, More Homes Built Faster Act, 2022 (“Bill 23”) that amended the Act to name the Region as an upper-tier municipality without planning responsibilities and Bill 185, Cutting Red Take to Build More Homes Act, 2024 (“Bill 185”), that set out July 1, 2024 as the effective date for that amendment. At the CMC, Counsel for the City advised the Tribunal that the City was now the approval authority and intended to provide submissions on those matters that unfolded between the Parties when the Region was the approval authority.

16The Tribunal declined to accept that the Region was exempt from participation in the CMC in the face of the current Motion and the necessity of hearing evidence pertaining to when it was the approval authority for OPA 18.6. The Tribunal encouraged the Parties to address the change in approval authority and the necessity of providing evidence from that period in the Motion materials. In recognition of the City’s new role as approval authority under Bill 23 and Bill 185, the Tribunal granted permission for the City to fully participate in the Motion.

17In advance of the Motion, the Region filed correspondence with the Tribunal on September 26, 2024, stating that it took no position on the Motion and would not be filing responding material. However, the Region advised that it was providing evidence of steps taken by it to effect the Notice by affidavit sworn by Ms. Meehan. As such, the Notice of Response to Motion was filed by the City with the supporting affidavit from Ms. Meehan.

18In their Notice of Response to Motion, Counsel for the Moving Parties take the position that the Tribunal, in not accepting the Region’s position of non-participation at the CMC, is directing that the Region reply to the Motion. As a result, counsel concludes that the Region is acting in contravention of the Tribunal’s direction by not providing Responding Materials itself. Counsel accuses the City of inappropriately stepping into the shoes of the Region by filing the Responding Motion materials.

19Conversely, counsel for the City asserts that Bill 23 and Bill 185 that amended the Act to name the Region as an upper-tier municipality without planning responsibilities as of July 1, 2024, means that the Region is not the appropriate party to respond to the Motion since it has no responsibility with respect to OPA 18.6 going forward.

20The Tribunal agrees that under Bill 23 and Bill 185, the City is now the approval authority for OPA 18.6 and that the Region need no longer participate since the City is taking full carriage of the matter. The Tribunal finds that the evidence put to it by the City through the affidavit evidence from Ms. Meehan attesting to the actions of the Region at the time it was the approval authority is satisfactory for the purposes of the Motion. The Region and the City have ensured the Tribunal has evidence from the period when the Region was the approval authority, and the Tribunal is content with this arrangement.

21In refusing to release the Region at the CMC for the purposes of determining the outcome of the Motion, it was the Tribunal’s intention that there was an appropriate avenue available for the response to the Motion and provision of the evidence necessary for adjudication of the matters in a timely manner. The Tribunal further sought the Region to be engaged in consideration of the remedies that may have been required should it have found in favour of the Moving Parties. Without the benefit of submissions from the Parties at the CMC that are now before it through the Motion, the Tribunal followed a conservative approach that both provided an opportunity for the Parties to make submissions on the role of the Region and remedies available to the Tribunal should they have been needed.

22Having reviewed the submission of the Parties, the Tribunal is content that the City, as the approval authority on OPA 18.6 since July 1, 2024, is the party now bearing the burden of the appeals with the statutory Appellants and the Region need not participate going forward. As such, the Tribunal clarifies that it sees no inconsistency with its direction at the CMC and the City acting as the Responding Party on the Motion since it is the approval authority with respect to OPA 18.6 going forward.

2. Can a Municipal Authority Re-issue Notice at a Later Date Under s. 17(35) of the Act?

23As a preliminary matter, the Tribunal must address whether it is possible for a municipal authority to re-issue notice that was given under s. 17(35) of the Act. Unlike other provisions in the Act that specify a time period within which an approval authority must provide notice of its decision, s. 17(35) does not do so. Counsel for the Moving Parties rely on the unique nature of notice under s. 17(35) for the authority to have the Region re-issue Notice.

24Counsel for the Moving Parties rely on two cases to demonstrate that the Tribunal has recognized the flexibility of s. 17(35) of the Act to provide notice at a later date to cure defective notice. In Port Franks Carts Inc./OWCLA v. Lambton Shores, 2018 CanLII 80767 (ON LPAT) (“Port Franks”), the Local Planning Appeal Tribunal (“LPAT”) as it was then known, considered a situation at a pre-hearing conference where, due to an administrative oversight, a party that requested notice of a decision by an upper-tier municipality to approve the official plan amendment of a lower tier municipality did not receive that notice. Counsel relies on Port Franks as an example where the Tribunal acknowledged that an upper-tier municipality is not statute barred by the passage of time due to an error in notice and can supplement its circulation of notice to an aggrieved party who requested, but did not receive, notice of a decision.

25The Tribunal agrees that an upper tier municipality is not statute barred by a specified time period under s. 17(35) of the Act and may later re-issue notice of a decision to a party that requested notice but did not receive it, as Port Franks demonstrates. However, the Tribunal distinguishes Port Franks from the current case on the facts. In Port Franks the defective notice was an administrative error admitted by the upper tier municipality. The Tribunal did not order the upper tier municipality to re-issue notice to the aggrieved party since the upper tier municipality wished to rectify the defect. Rather, the Tribunal’s decision in that case merely set out a solution that the Parties had devised themselves and provided submissions on to the Tribunal, but did not implement it through a Tribunal Order. Therefore, the Tribunal finds that Port Franks provides an interesting discussion by the Tribunal of a possible remedy where an approval authority admits its administrative error but does not support the conclusion that the Tribunal has the power to order such a solution.

26Counsel for the Moving Parties also rely on North Gwillimbury Forest Alliance v. Georgina (Town), 2017 Can LII 36185 (ON LPAT) (“Forest Alliance”), a decision from a pre-hearing conference of LPAT. Forest Alliance considers a situation where a party provided submissions on an official plan amendment to the lower tier municipality, but those comments were not passed to the upper tier municipality. The upper tier municipality had no knowledge of the submissions and did not provide notice of its decision to that interested party. In that case, Party status was granted to the aggrieved party and the Board suggested that it may wish to file a motion to rectify the notice issue caused by an omission of the municipal authorities.

27In their submissions, counsel for the Moving Parties point to the language of the Tribunal from the pre-hearing conference in Forest Alliance that counsel “may wish to consider a motion…with a view to an order or direction to the municipalities to provide the statutorily required notice and thereby rehabilitate a right of appeal”. In the submissions of the Moving Parties, counsel characterize Forest Alliance as an analogous case where the Tribunal recommend filing a motion to rectify the notice issue, and thereby indicating that the Tribunal could issue an order to ensure proper notice and restore the party’s appeal rights.

28The Tribunal distinguishes Forest Alliance from the case at hand. As in Port Franks, the municipal authority acknowledged its administrative error and sought a solution to the defective notice, which are not the facts in the case at hand. The Tribunal’s commentary from the first pre-hearing conference in Forest Alliance is not an Order of the Tribunal, rather the suggestion of a possible solution between the Parties where the municipal authorities acknowledged the defective notice.

29In summary, the Tribunal acknowledges that an approval authority may re-issue notice issued under s. 17(35) at a later date but does not find that the Tribunal has directed Parties to do so through an Order.

DID THE NOTICE PROVIDED BY THE REGION MEET THE REQUIREMENTS UNDER S. 17(35) OF THE ACT?

30It is not in dispute between the Parties that the Region sent the Notice of its decision to adopt OPA 18.6 by email to Ms. Castro on March 26, 2024, or that the Notice itself was defective. Counsel for the Moving Parties dispute the delivery method of the Notice and claim it did not meet the Region’s requirements to provide notice of its decision to the specific party that made the written request to be notified of the decision under s. 17(35) (b) of the Act. Counsel takes the position that the Request Letter specified that Groundswell requested notice of the decision, not Ms. Castro on behalf of Groundswell. As a result, counsel concludes that it was the Region’s error that Notice was not provided under s. 17(35)(b) of the Act to the Moving Parties who are prejudiced by not being able to file appeals within the statutory time period.

31Section 17(35) of the Act sets out the notice requirements for an approval authority for the approval of an official plan. It specifies that the approval authority shall ensure written notice of its decision is given in the prescribed manner [emphasis added]. Subsection 17(35)(b) sets out that the notice is to be provided to each person or public body that made a written request to be notified of the decision [emphasis added].

32Section 8(4) of O. Reg. 543/06 goes on to set out the prescribed manner for the giving of notice by the approval authority stating that it may be by “personal service, ordinary mail, fax or email”.

33To answer whether the Notice was defective, the Tribunal must consider: (1) the method of service prescribed under s. 17(35) and s. 8(4) of O. Reg. 543/06; (2) whether there is an obligation for an approval authority to confirm receipt of notice provided under s. 17(35); and (3) whether participation in the public process imports an obligation for the Region to have provided notice to an interested entity.

1. Method of Service for Notice under s. 17(35) and s.8(4) of O. Reg. 543/06

34Counsel for the Moving Parties take the position that since the Request Letter set out that Groundswell requested the Notice, and its mailing address was on the footer, the Region had an obligation to send the Notice by regular mail to Groundswell at that address. By sending the Notice by email to Ms. Castro, they allege the Region failed in its obligation to ensure Notice was provided.

35Counsel for the City disagrees with this interpretation and asserts that the municipal party, as the sender, has the choice to elect what method to use under s. 8(4) of O. Reg 543/06 that permits the approval authority to send notice by “personal service, ordinary mail, fax or email” [emphasis added].

36The Tribunal agrees with the City’s interpretation that the Region, under O. Reg. 534/06 had the authority to choose what method of service it used to deliver the Notice. In choosing to use email, the Region relied on the email address for Ms. Castro to deliver the Notice to Groundswell. No general corporate email address was provided for Groundswell in the Request Letter.

37Counsel for the City further asserts that once the Region sent the email to Ms. Castro that contained the Notice, the email was deemed to be received. For this, counsel relies on s. 22 of the Electronic Commerce Act, 2000, S.O. 2000, that creates a presumption of receipt by the addressee when an email is sent and becomes capable of being retrieved and processed by the addressee. As a result, counsel concludes that upon sending the Notice by email to Ms. Castro and not receiving any alert that she was no longer at the company, the Region was entitled to presume it was received and had no obligation to further pursue confirmation of its receipt. Counsel concludes that the failure of the Moving Parties to appeal OPA 18.6 within the statutory time frame is their own error, not the Region’s error.

38The Tribunal finds that Ms. Castro, in writing the Request Letter on Groundswell’s letterhead, was acting with the authority of the company and as a representative of the company. Ms. Castro held the title of Junior Planner at the time and it was reasonable for the Region to rely on Ms. Castro as an appropriate contact at Groundswell for the purpose of communication on the same issue going forward.

39If Ms. Castro was still employed at Groundswell when the Notice was sent, it is highly doubtful the Moving Parties would be claiming that the Notice should have been sent to Groundswell by regular mail, not to Ms. Castro by email as a representative of the company. The Tribunal presumes that it is only because Ms. Castro was no longer employed at Groundswell, and the company did not take steps to set up monitoring of her email or a bounce back email, that the Notice was not absorbed into Groundswell and then disseminated to the Moving Parties.

40The Tribunal finds that the legislation authorized the Region to elect to send Notice by email and it was reasonable that it was sent to Ms. Castro and not to Groundswell’s mailing address in the footer of the Request Letter. The Tribunal further finds it reasonable that the Region relied on Ms. Castro as a representative of the company when they communicated the Notice by email, and that the Notice was deemed to have been received when no automatic alert came back signifying they were no longer an employee.

2. Is There an Obligation on the Approval Authority to Confirm Receipt of Notice?

41In the Reply Motion Record, the Moving Parties take the position that the City is incorrectly interpreting the language in s. 17(35) of the Act and that the correct reading is that the approval authority has an obligation “to ensure that written notice of its decision is given in the prescribed manner to…each person…that has made a written request to be notified of the decision” [emphasis added].

42Counsel for the Moving Parties points to the City’s specific instructions to all parties requesting notice of the Region’s decision to adopt OPA 18.6 in their correspondence dated March 26, 2024. The Notice stated that “any person or public body will be entitled to receive Notice of Decision from the Region…provided a written request to be notified with respect to [OPA 18.6] (including the person’s or public body’s address) is made to the Region…” [emphasis added]. Counsel for the Moving Parties relies on the specific language in the Notice that the request to be provided with notice of adoption should include the person or public body’s address as evidence that the Request Letter followed those instructions by providing Groundswell’s mailing address in the footer. Counsel points out that the Request Letter did not ask for notice on behalf of Ms. Castro or that it be provided only to her email address. Counsel concludes that under s. 17(35) and the language in the City’s Notice that the Region had an obligation to ensure notice was provided to Groundswell at its mailing address. From this counsel advances that if the Region had provided a letter to Groundswell by regular mail, it would have been in a position to advise the Moving Parties and ensure they would have been in position to exercise their rights of appeals within the statutory time.

43Counsel for the City disagrees with the interpretation of s. 17(35) by counsel for the Moving Parties and asserts that the legislation does not import an obligation on the approval authority to deliver notice through a method elected by the interested party. Rather counsel states that the Act and associated O. Reg. 543/06 only obligates the approval authority to ensure the written notice of decision is given in any of the prescribed manners, which may include delivery by email.

44The Tribunal finds that employing a plain language approach to the meaning of s. 17(35) of the Act yields the conclusion that the word “ensure” means that the approval authority must take steps to make sure the notice of its decision is provided to the parties that requested notice in writing, not that it must confirm receipt of the notice of decision. If the meaning of “ensure” meant that the approval authority had to confirm receipt, it would create an administratively impossible situation. Similarly, to find that interested parties may elect what method notice of a decision is sent to them under s. 8(4) of O. Reg. 543/06, would create a similarly impossible burden on the approval authority to track all parties’ choice of service.

3. Is Participation in the Public Process Sufficient to Require Notice of a Decision is Provided to a Party Under s. 17(35) of the Act?

45In the affidavit of Mr. Theodore and their submissions, counsel for the Moving Parties contends that the Region was aware of their interest in OPA 18.6 and could have provided notice to them or to MHBC. Through the affidavit of Mr. Theodore, counsel sets out the various dates of communication on OPA 18.6 between MHBC, the City and the Region on behalf of the Moving Parties and its own behalf.

46As previously noted, counsel for the Moving Parties rely on Forest Alliance and point to the language of the Tribunal from that pre-hearing conference that [counsel] “may wish to consider a motion…with a view to an order or direction to the municipalities to provide the statutorily required notice and thereby rehabilitate a right of appeal”. In their submissions counsel characterizes Forest Alliance as similar to the current case where MHBC and Groundswell provided a letter on behalf of the Moving Parties to the lower tier municipality regarding OPA 18.6. Counsel suggests that is analogous to Forest Alliance, where the aggrieved party’s submissions to the lower tier municipality were not sent to the upper tier municipality who then did not provide the party with notice of its decision. Counsel draws the conclusion from that case that where there was participation in the public process and an expression of interest to the lower-tier municipality by a party that later did not receive notice from the upper-tier municipality, the Tribunal recommended filing a motion to rectify the notice issue, indicating that the Tribunal could issue an order to ensure proper notice and restore the party’s appeal rights.

47Counsel for the City takes the position that the Moving Parties and MHBC are not entitled to notice despite their participation in the public consultation process. Counsel relies on the specific language of s. 17(35) of the Act that states that an approval authority only has an obligation to provide notice to persons and public bodies that made a written request to be notified of the decision [emphasis added]. Counsel concludes that the Act does not set out an obligation for an approval authority to provide notice to other parties even if there is awareness of the interest of the parties.

48The Tribunal distinguishes Forest Alliance from the case at hand on the question of whether participation in the public process imports an obligation for an approval authority to provide notice of its decision under s. 17(35) of the Act. In Forest Alliance the defective notice was an administrative error by the approval authority, not the applicant or the applicant’s consultants, as has been found by the Tribunal on the facts in this case. Furthermore, the Board’s language in that decision that the Parties “may wish to consider a motion…with a view to an order or direction to the municipalities to provide the statutorily required notice and thereby rehabilitate a right of appeal” is obiter, since the Parties repaired the notice on consent between themselves without intervention by the Tribunal.

49The Tribunal agrees with the City in its plain language reading of the Act and finds that in the absence of a written request to be notified of the decision of the Region, the Moving Parties and MHBC were not entitled to notice under s. 17(35) merely because of their participation in the public process with the City. No evidence was presented to the Tribunal indicating that the Moving Parties, their counsel or MHBC requested that notice be provided to them. The plain language of s. 17(35) is clear and the Tribunal finds no reason to look outside of it.

SUMMARY OF FINDINGS

50Having considered the legal and evidentiary submissions of the Parties, the Tribunal summarizes its findings as follows:

1. The Notice sent by the Region to Ms. Castro by email on March 26, 2024, fulfilled the Region’s obligations under s. 17(35) of the Act;

2. Under s. 8(4) of O. Reg. 534/06, the Region was entitled to elect to send the Notice by email and was not obligated to send it by regular mail to Groundswell;

3. It was reasonable for the Region to rely on Ms. Castro as the appropriate representative of her employer Groundswell when they sent the Notice by email;

4. Under s. 22 of the Electronic Documents Act, an email is presumed received by the addressee when it is sent and capable of being received by the addressee;

5. In the absence of receiving an email alert that Ms. Castro was no longer an employee or that the email had been “bounced back”, it was reasonable for the Region to assume the Notice had been received by Ms. Castro;

6. The Request Letter did not indicate that notice was requested on behalf of the Moving Parties and therefore the Region had no obligation to send notice to those entities;

7. Participation in the public process by MHBC on behalf of the Moving Parties does not import an obligation upon the Region to have provided Notice to those Parties in the absence of a written request under s. 17(35) of the Act;

51Having found no error in the Notice provided from the Region to Groundswell, the Tribunal does not need to consider whether it has the jurisdiction to Order the Region to re-issue notice, or whether such re-issued notice would come from the Region or the City in consideration of the change in approval authority implemented through Bill 23 and Bill 185.

ORDER

52THE TRIBUNAL ORDERS THAT the Motion is dismissed.

“A. Mason”

A. MASON 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.