Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 29, 2024
CASE NO(S).: OLT-23-000641
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Aragon (Hockley) Development (Ontario) Corporation
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the development of 220, three-storey townhouse units
Reference Number: OPA 2022-02
Property Address: Block 2 and 28 of Registered Plan 7M-41 and Part 7 of Lot 5, Concession 2 of Reference Plan 7R5452
Municipality/UT: Mono/Dufferin
OLT Case No.: OLT-23-000641
OLT Lead Case No.: OLT-23-000641
OLT Case Name: Aragon (Hockley) Development (Ontario) Corporation v. Mono (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Aragon (Hockley) Development (Ontario) Corporation
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the development of 220, three-storey townhouse units
Reference Number: ZBA 2022-02
Property Address: Block 2 and 28 of Registered Plan 7M-41 and Part 7 of Lot 5, Concession 2 of Reference Plan 7R5452
Municipality/UT: Mono/Dufferin
OLT Case No.: OLT-23-000642
OLT Lead Case No.: OLT-23-000641
PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Town of Mono
Request for: Request for Dismissal Without a Hearing
Heard: January 25, 2024, by Video Hearing
APPEARANCES:
Parties
Counsel
Aragon (Hockley) Development (Ontario) Corporation (“Appellant”)
Kristi Ross
Town of Mono (“Town”)
Stan Floras
DECISION DELIVERED BY K.R. Andrews and J. INNIS AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is a motion by the Town to dismiss the appeals without a hearing pursuant to sections 17(45) and 34(25) of the Planning Act, section 19(1)(c) of the Ontario Land Tribunal Act (“OLT Act”), and/or under Rule 15.4 of the Tribunal Rules of Practice and Procedure (the “Rules”). The Town contends that the motion should be granted due to the Appellant having no reasonable prospect of success and, consequently, it would be an inefficient use of resources for the matter to proceed to a full hearing.
2The Notice of Motion also includes a request for an order to adjourn the hearing indefinitely as alternative relief; however, both parties indicated at the hearing that neither of them is in favour of such relief. Given their common position, and the Tribunal’s mutual preference to not have the proceedings linger indefinitely, the Tribunal will not consider an indefinite adjournment as a potential outcome.
3As a matter of background, the subject applications seek a Zoning By-law Amendment (“ZBA”; see proposed draft at Attachment 1) and Official Plan Amendment (“OPA”; see proposed draft at Attachment 2) to facilitate the development of the Subject Lands (legally described as Block 2 and 28 of Registered Plan 7M-41 and Part 7 of Lot 5, Concession 2 of Reference Plan 7R5452). The proposed development involves a planned residential condominium community comprised of 220 townhouse units.
4Of particular note, the Appellant proposes to service the proposed development by way of a “communal wastewater treatment system”, because the planned density will not enable the implementation of individual private services and there are no municipal wastewater services otherwise available. The proposed built-form and density (which necessitates the proposed communal wastewater treatment system) is referenced in the Appellant’s draft ZBA, and the proposed built-form, density and communal wastewater treatment system are all specifically identified in the Appellant’s draft OPA.
5The Tribunal finds that the need for a communal wastewater treatment system, as part of the proposed development, is a key factor to determining this motion. This is because the construction of such a system requires the Town to enter into a Municipal Responsibility Agreement (“MRA”)1 with the Appellant, and the Town has unequivocally stated that it will refuse to do so. This fact, the Tribunal finds, will effectively prevent the Appellant from proceeding with their development as proposed, because they will be unable to obtain the necessary authorization from the Ministry of Environment Conservation and Parks (“Ministry”) to build the communal system without an MRA.
6It is on this basis that the Town brings this motion to dismiss for there being no reasonable prospect of success.
Statutory provisions, Rules for dismissal and Analysis
7The Tribunal has reviewed the statutory provisions and Rules for dismissal of a matter without a hearing and finds that sections 17(45) and 34(25) of the Planning Act do not apply, given that the subject appeals clearly identify legitimate land use planning grounds and there is no indication of bad faith or other conduct otherwise contemplated by these sections.
8Furthermore, the Tribunal finds that none of the factors identified at Rule 15.4 of the Rules are present in this case, given that the Appellant is not taking the position that the Tribunal has the jurisdiction to force the Town to enter into an MRA, which the Tribunal clearly has no jurisdiction to do. The Tribunal finds that an MRA is a legal contract between two parties, and the Tribunal has no power to compel the Town to enter into it. The Tribunal also finds that, to do so, it would involve interfering with the Town’s discretionary powers to conduct its affairs, particularly affairs with potential financial consequences, in a manner that it sees fit.
9Consequently, the Tribunal finds that this motion rests with an analysis under section 19(1)(c) of the OLT Act, which states:
[T]he Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing […] if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;
10As it relates to this section, there was some discussion between the Parties and the Tribunal about whether “reasonable prospect of success” is the same as “reasonable prosect of proceeding [with the development]”. This distinction arises given that the requested ZBA and OPA do not directly require the Town to execute an MRA for it to be approved, but the Appellant nevertheless cannot proceed with construction without it.
11On this point, the Appellant clearly takes the position that it would be satisfied with the approval of the requested ZBA and OPA and accept the obvious risk of not being able to proceed with construction. The Town, meanwhile, wants no part of such an outcome, expressing concern that approval of the requested OPA and ZBA with reference to a communal wastewater treatment system would seemingly condone the implementation of such a system and, by extension, infer an agreement to executing a MRA. The Tribunal must therefore determine if it should allow the matter to proceed to a merit hearing, to provide the Appellant with an opportunity to present its planning submissions, despite the likelihood that construction cannot proceed regardless of any approval of the subject OPA and ZBA.
12In contemplation of the intent and purpose of section 19(1)(c) of the OLT Act, the Tribunal finds no practical difference between “reasonable prospect of success” and “reasonable prospect of proceeding [with the development]” in the present case. Put another way, the Tribunal sees no point in considering approval of an OPA or ZBA if the purpose is unattainable, such as it is in the present case.
13Additionally, in the present circumstances, the Appellant is expressly seeking an OPA which specifically includes reference to a “Communal Wastewater Treatment System” within its very language, and both the proposed ZBA and the OPA include built-form and density details which are only possible if a Communal Wastewater Treatment System is constructed. Given such language within the proposed instruments, the Tribunal sees no way to consider other planning grounds apart from the plausibility of constructing a Communal Wastewater Treatment System. In this sense, the plausibility of constructing a Communal Wastewater Treatment System becomes the matter’s threshold question.
14Both Parties provided the Tribunal with extensive submissions and a variety of cases which purport to support their respective positions. The Tribunal confirms that it has considered these cases, noting that none of them are necessarily binding. Furthermore, while the parties’ submissions were extensive, the Tribunal finds that the analysis is relatively straight forward, determined by the simple question: does the appellant have a reasonable prospect of success, given the scope of the proposed OPA and ZBA and the fact that the Town has already determined that it will not execute the required MRA?
15The Tribunal finds the answer to be unequivocally “no”.
16The Appellant takes the position that the merits of the OPA and ZBA, as currently proposed, should still be considered by the Tribunal, even though the current decision of the Town will inevitably halt construction, because (they submit) it is theoretically possible for the Town to change its decision, or the requirements of the Ministry may change.
17While such theoretical possibilities may exist, the Tribunal received no evidence that the Town is likely to change its mind. On the contrary, the Town has made it clear that it is determined to continue to refuse the execution of an MRA. The Tribunal also does not accept that it is likely that the Ministry requirements will change, given that the current requirements, including the need to have an executed MRA with the local municipality, have been around for many years.
18Upon these findings, the Tribunal concludes that the Appellant has no reasonable prospect of obtaining an executed MRA with the Town, and therefore it has no reasonable prospect for success as it relates to its ZBA and OPA applications. As a result, the Tribunal finds, it would be an inefficient use of the collective resources of the parties and the Tribunal to allow the matter, as currently proposed, to proceed to a merit hearing.
Alternative Relief Considered
19As stated in the Notice of Motion, the Town is seeking an order to dismiss the appeals without a hearing. However, at the hearing of the motion, the Town confirmed that it recognizes that the Tribunal may also provide alternative relief pursuant to section 9 of the OLT Act, including the possibility of providing directions to the Appellant to modify its ZBA and OPA applications to address any particular findings of the Tribunal. Counsel for the Appellant further acknowledged that the Tribunal has such powers, and also expressed a desire to have such alternative relief considered in the event that the Tribunal finds that their applications, as proposed, have no reasonable prospect for success.
20The Tribunal confirms that it may order such alternative relief under the broad powers provided pursuant to section 9 of the OLT Act. However, in the present case, the Tribunal finds that the necessary changes to the proposed OPA and ZBA, to cure the applications upon the Tribunal's findings, will be too substantial to be considered by the Tribunal without first being considered by the Municipality.
21In this sense, the Tribunal finds that such a substantially different application should first go before the Municipal Council and proceed through the regular Municipal steps before potentially coming to the Tribunal for determination. This finding is informed, at least in part, by the language of ss. 17(45.1) and 34(25.1.1) of the Planning Act, which provides the Tribunal with the authority to “dismiss all or part of an appeal without holding a hearing if, in the Tribunal’s opinion, the application to which the appeal relates is substantially different from the application that was before council at the time of its decision”.
ORDER
22THE TRIBUNAL ORDERS that the motion is granted, and the appeals are dismissed.
“K.R. Andrews”
K.R. ANDREWS
MEMBER
“J. Innis”
J. INNIS
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.
ATTACHMENT 1
ATTACHMENT 2
Footnotes
- A MRA is a legal agreement between the municipality and a developer that imposes the responsibility and obligations on the municipality for the proper management and function of the communal system and it specifically recognizes the contingency of the municipality assuming the system to repair and/or remedy any deficiency and to operate and maintain the system.