Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 05, 2024

CASE NO(S).: OLT-23-000921

PROCEEDING COMMENCED UNDER subsection 41(3.7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Request by: Industrial Equities Guelph Corporation

Request for: Motion for directions to determine the completeness of an Application

Municipality/UT: City of Guelph / City of Guelph

OLT Case No: OLT-23-000921

OLT Lead Case No: OLT-23-000921

OLT Case Name: Industrial Equities Guelph Corporation v Guelph (City)

Heard: January 15, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
City of Guelph	Allison Thornton Ian White (articling student)
Industrial Equities Guelph Corporation	Michael Foderick Jonathan Nehmetallah Giorgina Chum (articling student)

DECISION DELIVERED BY W. DANIEL BEST AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal originates in a Motion for Directions pursuant to s. 41(3.7) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) made by Industrial Equities Guelph Corporation (“Applicant”). The matter is from a negative notice under s.41(3.6) wherein the City of Guelph (“City”) refused to accept of further consider a Site Plan Application (“Application”) for a property municipally known as 384 Crawley Road (“Subject Lands”), in the City of Guelph.

2The Applicant’s Motion for Directions sought the following from the Tribunal:

• An Order pursuant to s. 41(3.7) of the Act declaring that all information and materials required in order for the Application to be deemed complete have been provided, and that any other complete application requirement specified by the City in its letter dated August 25, 2023 is either unreasonable pursuant to s. 41(3.7)(b), or not required at all pursuant to s. 41(3.4) of the Act.
• An Order that the Application submitted to the City on July 28, 2023, is deemed to be complete as of July 28, 2023.
• In the alternative, an Order declaring that the Application with respect to the Subject Lands is deemed to be complete as of September 26, 2023 when the Application was supplemented with additional information and materials.
• In the alternative, an Order declaring that such portions of the City’s letter of August 25, 2023 is either unreasonable pursuant to s. 41(3.7) (b), or not required at all pursuant to s. 41(3.4) as the Tribunal determines.

3The City opposes the Motion for Directions on the following grounds:

• The motion is premature. The City states that the Application is predicated on a ministerial decision dated on April 11, 2023 which was reversed by the enactment of Bill 150, the Planning Statute Law Amendment Act, 2023 on December 6, 2023, resulting in the retroactive reinstatement of several provisions of the City’s Official Plan (“COP”) which precludes submission of the Application unless or until the COP is further amended or the Application is substantially revised.
• The Application is materially incomplete in respect of matters of conformity with the legislation, and the complete application requirements prescribed by the COP and material which the Applicant’s consultants acknowledged was “to follow” as well as other materials which were submitted with known gaps which had been identified to the Applicant prior to submission.
• The City’s complete application requirements, as set out in the COP and on a site-specific basis in writing to the Applicant in advance of the Application, are reasonable and necessary to inform a site plan decision.
• The City lacked the jurisdiction (and by extension, this Tribunal lacks jurisdiction) to deem the Application complete, because the City found that the Application failed to address fundamental matters of conformity with the Provincial Policy Statement, 2020 (“PPS”) based on significant gaps in the submitted material.

4The Application represents the first phase of a five-phased proposed development on the Subject Lands. The first phase proposes an extension of Southgate Drive to Crawley Road and the development of a warehouse, dispatch warehouse and office for a cold storage facility.

BACKGROUND

5On November 23, 2022, the Applicant made a mandatory site plan pre-consultation submission to the City.

6On December 14, 2022, the Applicant attended a mandatory pre-consultation meeting with the City respect to the proposed development on the Subject Lands.

7The City presented summary comments from the mandatory pre-consultation meeting and advised that the document was forwarded to the Applicant by email on December 23, 2022.

8On April 11, 2023, the then-Minister of Municipal Affairs and Housing released a decision (“Ministerial Decision”) on Official Plan Amendment No. 80 (“OPA 80”), the City’s Growth Plan conformity exercise. The Ministerial Decision authorized site-specific amendments regarding the Subject Lands in the COP which, among other things:

• Modified the Site’s Natural Heritage System (“NHS”) and Open Space System features;
• Specifically authorized the re-alignment of public roads adjacent to the Site without an Official Plan Amendment (“OPA”) and draft Plan of Subdivision (“POS”) and authorized a road alignment to be determined by the City in consultation with the proponent and implemented through a site plan application or consent application (“consent”); and
• Authorized the construction of a 160,000 square metre (“m²”) building of up to 46 metres (“m”) in height notwithstanding the general policies of the COP with respect to the industrial designation and exempted this building and any ancillary buildings and landscaping from the general policies of the COP, including specifically from the City’s NHS policies.

9The Applicant provided the City with a Pre-submission Review Application on May 1, 2023. A Site Plan Review Committee (“SPRC”) meeting was set for May 31, 2023.

10On June 8, 2023, following the SPRC Meeting, the Applicant received the SPRC summary comment list (the “SPRC List”) outlining all plans, drawings, information, and material required by the City for the Application in accordance with s. 41(3.3), (3.4), and (4) of the Act (“Application Materials”).

11On June 14, 2023, the Committee of Adjustment authorized minor variances for the Subject Lands resulting in zoning conformity for the proposed use.

12On July 28, 2023, the Applicant submitted the Application to the City along with the materials identified from the SPRC List including:

• Environmental Impact Study (EIS) prepared by NRSI, dated July 26, 2023;
• Environmental Implementation Report prepared by NRSI, dated July 26, 2023;
• Stormwater Management Plans and Details/Notes prepared by AECOM, July 26, 2023;
• Ministerial Approval of Archeological Assessments, dated March 20, 2009;
• Feasibility Noise Study – Phase 1 prepared by AECOM, dated July 26, 2023;
• Traffic Impact Study prepared by AECOM, dated April 25, 2023;
• Geotechnical Investigation Report prepared by Peto MacCallum Ltd., dated July 25, 2006;
• Servicing Plans prepared by AECOM, dated July 26, 2023;
• Functional Servicing Report prepared by AECOM, dated July 26, 2023; and
• Site Plans, Elevation Drawings, Floor Plans, Landscaping Plans, Landscaping Details and Notes, and Roof Plan prepared by AECOM, dated July 26, 2023.

The Applicant also paid the required fees for the Application on July 28, 2023.

13On August 25, 2023, the City notified the Applicant that the Application was incomplete (“Incomplete Notice”) based on the following factors:

• It failed to address conformity with the PPS as had been outlined at the May 31, 2023 meeting;
• It lacked several of the materials and the clearances that were outlined in the City’s comments from December 23, 2022 and June 8, 2023;
• It did not conform with the directions provided to the Applicant to ensure conformity with the COP, which were provided in writing to the Applicant as part of the comprehensive pre-consultation summary comments; and
• It failed to address concerns that had been raised by agencies whose comments were necessary to input into a site plan approval (“Approval”).

14On September 25, 2023, the Applicant filed an Appeal with the Tribunal pursuant to s. 41(3.7) of the Act, seeking the Tribunal’s direction that the City’s requirements for any material beyond what was submitted on July 28, 2023 was unnecessary or unreasonable.

15On September 26, 2023, the Applicant submitted further materials in support of the Application (“Supplemental Material”) which included the following:

• Stage 2 Archeological Assessment prepared by Aecom Canada Ltd., dated September 2023;
• Composite Utility Drawings prepared by Aecom Canada Ltd, dated July 26, 2023;
• Draft Reference Plan prepared by Van Harten Land Surveyors, dated September 21, 2023;
• Sanitary Lift Station Details prepared by KSB Pumps Inc., dated September 2023;
• Stormwater Management Report prepared by Aecom Canada Ltd., dated April 24, 2023; and
• Supplementary Traffic Impact Study Analyses, prepared by Aecom Canada Ltd., dated September 2023.

16On December 6, 2023, Bill 150 received Royal Assent, enacting the Official Plan Adjustments Act, 2023 (“OPAA”), which reversed the Ministerial Decision, including the site-specific modifications for the Subject Lands found in OPA 80 referenced in paragraph [8].

17The following materials were identified as Exhibits in respect of this Motion:

• Exhibit 1 – Motion Record of Industrial Equities Guelph Corporation, dated December 29, 2023.
• Exhibit 1A – Affidavit of David Falletta, dated December 29, 2023, indicating his qualifications as a Registered Professional Planner.
• Exhibit 2 – Responding Motion of the City of Guelph, dated January 8, 2024.
• Exhibit 2A – Affidavit of Michael Witmer, dated January 8, 2024, indicating his qualifications as a Registered Professional Planner.
• Exhibit 3 – Reply Motion of Industrial Equities Guelph Corporation, dated January 12, 2024.
• Exhibit 3A – Reply Affidavit of David Falletta, dated January 12, 2024.
• Exhibit 3B – Reply Affidavit of Laura Hockley, dated January 12, 2024, indicating her qualifications as an Environmental Consultant and Ecologist.
• Exhibit 4 – Affidavit of Service of Allison Thornton, dated January 8, 2024.

CONTEXT

18The Motion before the Tribunal is to determine if the Application should be deemed complete, not what is required for Approval.

19The Tribunal does note that it is unclear how the Approval will be granted based on the requirements of the City for conformity with the COP, the potential requirements of other instruments, and the enactment of the OPAA, including official plan conformity requirements under s.3(2) of the OPAA.

20All the following statements are drawn from the sworn affidavits, Motion Records of the Parties and evidence presented at the Hearing.

21The Tribunal received the affidavits from Mr. Falletta and Mr. Witmer, both of whom are Registered Professional Planners previously qualified by this Tribunal and its predecessors to provide opinion evidence in matters of land use planning. Each Planner provided a copy of their Curriculum Vitae and an executed Acknowledgement of Experts’ Duty. Based on a review of the foregoing, these individuals were qualified to provide land use planning opinion evidence for the purpose of the present motion.

22The Tribunal received the affidavit of Ms. Hockley, an Environmental Consultant and Ecologist who provided a copy of her Curriculum Vitae and an executed Acknowledgement of Experts’ Duty. Based on a review of the foregoing, Ms. Hockley was qualified to provide Environmental Impact Study opinion evidence for the purpose of the present Motion.

23The Motion for Directions arose from the enactment of the OPAA and the implications for the City’s OPA 80. The enactment of the OPAA rescinded the Ministerial Decision with the exception of modification 17. Section 3(2) of the OPAA requires official plan conformity with the official plan that is approved or amended. The list of documents required under s.10.18 of the COP remains the same in the relevant versions of the COP.

24The Act prescribes the requirements for deeming the Application complete. Those requirements are outlined in s. 41(4) of the Act. The Act allows for municipalities to set additional requirements for site plans if those requirements are contained in the municipality’s official plan. The COP contains language about additional requirements that the City can impose under s.41(3.4). In reaching its Decision on the Motion, the Tribunal will rely on s. 41 (3.3), (3.4), (3.5), (3.6), (4), (4.0.1), (4.1), (4.1.1), (7), and s. 69 of the Act and s. 10.18 of the COP.

ISSUES BEFORE THE TRIBUNAL

25The fundamental issues before the Tribunal for determination are:

• Did the Applicant provide the plans, drawings and the information and material required to deem the Application complete; and
• Are the requirements of the City made under s. 41(3.4) reasonable.

ISSUE 1: DID THE APPLICANT PROVIDE THE PLANS AND DRAWINGS AND THE INFORMATION AND MATERIAL REQUIRED?

26Mr. Foderick, counsel for the Applicant, relied on the affidavit of David Falletta, , which states that, on July 28, 2023, the Applicant provided all information and materials required to deem the Application complete as required by s. 41 of the Act, including as prescribed by the COP.

27Mr. Foderick reasoned that since the City was able to and had already provided detailed and technical comments and review of the Application, the City had sufficient information to evaluate and form opinions on the Application. He contended that the Application materials submitted at that time were sufficient to deem the Application complete.

28Allison Thornton, counsel for the City, relied on the affidavit of Mr. Witmer who took the opposite view and argued that the Application was incomplete.

29Ms. Thornton submitted that at the time of the December 2022 pre-consultation, the Applicant was informed that an OPA as well as a POS and Zoning By-law Amendment, would be required prior to the site plan, and that submission of a site plan application prior to these applications being approved and in force and effect would be premature.

30Ms. Thornton argued that site plan issues are a matter of mandatory delegated authority under the Act. She continued that it follows from the statute that site plans must either conform in all respects to the COP, or an OPA must be approved by the designated authority (Council or the Minister) prior to an Application being deemed complete.

31Ms. Thornton contended that the delegated Authority for site plans in the City lacks jurisdiction to approve a site plan predicated on the changes in the Ministerial Decision. Ms. Thornton contended that based on Janssen Inc. v. Teva Canada Ltd. 2015 FCA 36, the Tribunal cannot assume authority that does not exist in law, and that the Motion for a declaration that the submitted Application is complete is premature on that basis alone.

32Ms. Thornton maintained that the Applicant was treating the Ministerial Decision as binding in its Notice of Motion, and is relying on Clergy Properties Ltd. v. Mississauga (City) 1996 CarswellOnt 5704 (“Clergy”) to disregard the impact of Bill 150 on the Application. She submitted that paragraph [15] of Clergy provides the following:

The Board, in determining the policy framework under which an Application should be examined, has consistently stated that an Application must be tested against the policy documents in place at the date of the Application. It has done so in order to lend some certainty to the land use planning process, and to ensure that fairness to all parties prevail.

33Ms. Thornton reasoned that Clergy does not apply as the OPAA is a statute, which explicitly provides for the changes to the Ministerial Decision to be retroactive to April 11, 2023, and expressly directed, that only in the very narrow and specific set of circumstances, namely, where a building permit was issued, can a landowner rely on the Ministerial Decision as the basis of permission to proceed under s. 3(2) of the OPAA.

34Ms. Thornton stated that the Parties agreed that the Applicant did not make their Application until July 28, 2023. She maintained that the Tribunal is bound to apply OPA 80, as it has been retroactively amended by the OPAA. By the express wording of the OPAA, she maintained that the Tribunal must have regard to the COP on any development application, as it reads upon recission of the Ministerial Decision.

35Ms. Thornton stated that the Applicant was advised of deficiencies in the Application in written comments provided in December 2022 and June 2023. She also submitted that the Application was deficient due to missing studies, clearances and/or information that in their absence, inhibit the City from making an informed decision in supporting a site plan for the Subject Lands.

36Ms. Thornton noted that several of the submitted reports defer the provision of key information to a later date. Based on the foregoing, Ms. Thornton argued that these reports cannot be considered complete and do not provide the basis for an informed decision by the City granting Approval.

37Ms. Thornton asserted that it is implicit that the General Manager of Planning and Building not render a decision contrary to matters prescribed by Provincial statute. She relied on Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 at paragraph [68] which states:

the governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority.

ISSUE 1 FINDINGS AND ANALYSIS

38The Tribunal has carefully considered the evidence before it, as well as the submissions of counsel. The Tribunal finds that it prefers the evidence of the Applicant with respect to deeming the Application complete as of July 28, 2023, for the reasons that follow below.

39The Tribunal concurs with the Applicant that the City has conflated the statutory requirements of deeming the Application complete under s. 41(3.6) of the Act and the Approval under s. 41(4) of the Act.

40The Tribunal disagrees with Ms. Thornton’s assertion that “these reports cannot be considered complete and do not provide the basis for an informed decision by the City granting Approval.” Ms. Thornton may be correct respecting the prospect of approval, but the issue before the Tribunal is not one of approval. Rather, the issue is determining the completeness of the Application under s. 41(3.7) of the Act. This determination is further complicated by the retroactivity of OPA 80 per the OPAA.

41It is important to clarify that the task before the Tribunal is to determine if the information and drawings have been provided and whether the other information required within the COP are reasonable. The task before the Tribunal is not an appeal under s. 41(12) of the Act.

42In determining if the Applicant provided the required plans, drawings and the information and material to deem the Application complete, the Tribunal must make a distinction of the prescribed information under s. 41(3.3) and the other information under s. 41(3.4) in accordance with the Act.

43The prescribed plans information required to deem a site plan application complete is identified in s. 41(4)1 of the Act.

44The prescribed drawings information required to deem a site plan application complete is identified in s. 41(4)2 (a)-(f) of the Act.

45The prescribed fee under s. 69 of the Act is required to deem a site plan application complete.

46The Act allows for municipalities to set additional requirements for site plans if those are contained in the municipality’s official plan as prescribed in s. 41(3.4).

47The COP states under s. 10.18 3 that in addition to the requirements noted in the applicable sections of the COP, the City may require additional information and material to be submitted as part of a complete application. The COP states in s.10.18 3i-ix the additional information, material and types of studies or documents that may be identified during the pre-consultation process as being required to be submitted as part of a complete development application. The broad categories include Natural Heritage; Planning Matters; Transportation, Servicing and Infrastructure; Cultural Heritage Resources; Development Impacts, Financial Impacts and Sustainability.

48A Pre-submission Review Site Plan Application Staff Comments (“Staff Comments”) dated May 31, 2023 and previous Staff Comments dated December 22, 2022 were provided to the Applicant. The extensive Staff Comments provided an extensive list incorporating both prescribed, and other information the City would require as part of a submission for the Application to be considered.

49The Application submitted to the City on July 28, 2023 provided a submission of 41 materials in support of the Application. The materials submitted incorporated prescribed information under the Act and other information that was broadly defined under s. 10.18 3i-ix of the COP.

50The Tribunal agrees with Mr. Foderick’s submission that deeming an Application complete is a procedural exercise that does not require the City to determine the merits of the Application. Determining the completeness of the Application merely serves to confirm that the prescribed information and materials have been provided to the City for its review, comment and consideration for approval (or refusal).

51Upon review, the Tribunal agrees with Mr. Foderick that the materials submitted in the Application on July 28, 2023 were comprehensive, and worthy of being deemed complete. The “to follow” materials were based on subsequent discussions between the Applicant and City resulting from the City’s review of, and feedback on, the Application information and materials submitted.

52Mr. Falletta opined that based on his review of the materials required by statute, regulation, the COP, the SPRC List, and the Incomplete Notice, the Application includes all of the information required to be deemed complete. He further opined that even if some additional information was required, the Supplemental Materials would have ensured that the Application was complete.

53Mr. Foderick disagrees with the City that the Motion was premature. He stated the City’s assertion is incorrect and irrelevant to the determination of the Motion because conformity with the COP is not a statutory requirement or necessary prerequisite for determining the completeness of an Application.

54Although the Tribunal may agree with Mr. Foderick’s analysis regarding the prematurity of the Motion, deeming the Application complete, by no means is this a concurrence with or guarantee of Approval. The requirements of the COP conformity and other OPAA implications will need to be considered as part of the iterative site plan process.

55Mr. Foderick argued that the Applicant did not, and has not implicitly or explicitly argued the Clergy Principle at all, which has no application to the question at hand.

56The Tribunal finds that the City has incorrectly applied the requirements for granting Site Plan Approval to the exercise of deeming a Site Plan Application complete. The deeming of a complete application should not be where the merits of the application are determined. The administrative exercise of determining an application complete is an exercise to determine that the prescribed information and materials have been provided for a municipal review, comment and approval/refusal.

57Based on the foregoing, should an Applicant fail to provide the prescribed information or materials, the delegated person is entitled to refuse to accept or further consider the application in accordance with s. 41(3.6) of the Act. This does not mean that deeming an application complete requires that it be revised to the satisfaction of the City to a standard that it considers worthy of site plan approval.

58The Tribunal concurs with the Applicant that the City’s approach effectively strips away the statutory rights of the Applicant to have their Application reviewed or appealed. This approach by the City would result in the Application never being deemed complete until the City subjectively determines that the Application is approvable. This is not the intention of the Act.

ISSUE 2: ARE THE REASONABLENESS REQUIREMENTS UNDER S.41(3.4) OF THE ACT SATISFIED?

59Mr. Foderick argued that the City is requesting information and materials that are ultra vires in order to deem the Application complete.

60Mr. Foderick argued that the City conflated the statutory requirements and tests for an application approval pursuant to s. 41(4) of the Act with the test for deeming an application complete pursuant to s. 41(3.5). In his view, the City has replaced the test for deeming the Application complete with its own stated expectations for granting the Approval.

61Mr. Foderick argued that the documents and information alleged by the City as being required for a complete Application, including a demonstration of consistency with the PPS to the satisfaction of the City, approval/clearance of the Application by external agencies prior to submission of the Application, and requests for revisions to information and materials to address the City’s review comments, are not appropriate or reasonable at this very preliminary stage of the site plan approval process.

62Mr. Foderick disputed the City’s interpretation of s.10.18 2ii of the COP that it may request any “other information and material deemed necessary by the General Manager of Planning Services or their designate in accordance with this Plan”, as s. 41(3.4) of the Act provides that a municipality may only require additional information if its OP contains provisions relating to such requirements. He further stated that s. 10.18 2 of the COP does not satisfy this statutory pre-condition, because it does not make any reference to a site plan application or approval.

63Ms. Thornton argued that an Application cannot be granted by the City without advance notice of:

• A determination made by the Minister of Environment, Conservation and Parks under the Endangered Species Act, 2007;
• A determination made by the Grand River Conservation Authority under its statutory mandate over matters of flood control under the Conservation Authorities Act; and/or
• Determinations made by the Township of Puslinch, County of Wellington and the Provincial Minister of Transportation regarding access to public roads within their respective jurisdictions on which the Application is predicated.

64Ms. Thornton submitted that it is a mandatory requirement under the COP that there be coordination on matters of transportation and water resources within one kilometre of the boundary between the Municipalities. In addition, stormwater and transportation concerns were identified, and were left unaddressed in the Application.

65Ms. Thornton argued that the Applicant cited cases where external agency signoffs were obtained after the subject application was deemed complete, but these examples were before the More Homes for Everyone Act, 2022 (“Bill 109”) was passed and s. 41 (11.1) provided for rules respecting when municipalities are required to refund fees.

66Ms. Thornton contended that it is now mandatory under the Act for site plan decisions to be made by a City official or employee acting under delegated authority from Council. She further explained that external agency comments form part of the basis for the conditions for acceptance of the site plan, and that external agency comments will now have to be collected prior to a determination of completeness in order to provide sufficient time for the General Manager of Planning and Building Services to determine whether the requisite conditions for completeness have been met.

67Ms. Thornton submitted that s. 3(5) of the Act prohibits the City from making a decision with respect to any planning matter, if that decision would be inconsistent with policy statements issued under s. 3(1) or any Provincial plans that are in effect as of the date of the decision. The City advised the Applicant that the submitted Application “failed to conform with PPS policies” which was a concern respecting the substance and completeness of the Application.

68In reply, Mr. Foderick submitted that it is neither reasonable nor consistent with the Act to only deem an Application complete if it has been circulated to and signed off by all outside agencies and neighbouring municipalities, and has been revised completely to the satisfaction of the City.

69The Applicant's position is that the Applications are consistent with the PPS, and the fact that the City disagrees is immaterial, given that a determination on the issue of PPS consistency is not a prerequisite for deeming an application complete, but rather informs a later decision to approve or reject a site plan application, or to request modifications.

70Mr. Foderick disputed the City’s argument that Bill 109 introduced a new “reality” that external agency comments have to be collected prior to deeming a site plan application complete.

71Mr. Foderick acknowledged that Bill 109 amended the site plan application process by establishing a mandatory Pre-Application Consultation (“PAC”) and a 30-day period for municipalities to determine the completeness of an application. But he stated that the Bill 109 changes do not now permit a municipality to use the PAC process to demand changes it desires to the substance of an application before it is deemed complete, because of the necessity to provide fee refunds if approval is subsequently not given within the required time, as the City asserts. Mr. Foderick relies on the recent Decision of Minto (Mimico) v. Toronto (“Minto”) at paragraph [56] which states:

“…the PAC [Pre-Application Consultation], within the scheme of the COTA and the Planning Act, which at their core, establish rights and appeal avenues, cannot be used to delay the Application process or mitigate potential revenue losses (through refunds). If this were truly the intent of the Legislature, the requirements for what is considered a complete Application would have been changed or fully elaborated to include the PAC as being a component of the prescribed information referenced in s. 114(4.2) of the COTA. This was and is not the case.

72Mr. Foderick argued that Minto explains that the purpose of the Bill 109 amendments to s. 41 of the Act are to mitigate delays and ensure that all necessary materials to support an Application are identified at the onset of the approval process. He continued that allowing the City to determine the completeness of a site plan application based on its subjective interpretation of what is approvable not only indefinitely delays the City’s decision on completeness, but also indefinitely delays the actual approval process.

ISSUE 2 FINDINGS AND ANALYSIS

73The Tribunal has carefully considered the evidence before it, as well as the submissions of counsel. The Tribunal prefers the evidence of the Applicant respecting s. 41(3.4) of the Act for the reasons that follow.

74As with the findings respecting Issue 1 in this Decision, the Tribunal agrees with the Applicant, that the City conflated the statutory requirements and tests for an application approval pursuant to s. 41(4) of the Act, with the test for deeming an application complete pursuant to s. 41(3.5) of the Act.

75The Tribunal agrees that information required under the broad areas identified in s.10.18 3i-ix of the COP are in accordance with requirements under s. 41(3.4) of the Act.

76The Tribunal notes that while broad discretion should be given to the City on materials requested pursuant to its OP, the Tribunal should not micromanage the exercise of discretion by the City, which is confined by statutory limits. The Tribunal finds that the City did not comply with s. 41(3.7) (b) of the Act respecting reasonableness in determining the completeness of the Application. Specifically, requirements including a demonstration of consistency with the PPS to the satisfaction of the City, approval/clearance of the Application by external agencies before the Application has been submitted, and requests for revisions to information and materials to address the City’s review comments, are not appropriate or reasonable at this stage of the site plan approval process.

77The Tribunal acknowledges the mandatory requirement in the COP that there be coordination on matters of transportation and water resources within one kilometre of the boundary between the municipalities. However, it would be more appropriate that this requirement be identified as a condition of Approval.

78The Tribunal disagrees with the City that stormwater and transportation concerns identified were left unaddressed in the Application. The Applicant submitted a Stormwater Management Plan, dated July 26, 2023, and a Traffic Impact Study, dated April 25, 2023. The information submitted was sufficient to deem the Application complete, and any concerns related to the materials should be addressed through the site plan approval process.

79The Act provides a clear framework for what is required for a complete Application. Section 41(3.4) of the Act identifies that further information may be required, but only if the official plan contains provisions relating to requirements under this subsection.

80The City sought additional reports not specified in the COP such as an Ecological Restoration Plan, Composite Lift Plan, Draft Reference Plan and Sanitary Lift Station Details. The additional requirements required by the City appear to be as a result of s. 10.18 2ii, which states “other information and material deemed necessary by the General Manager of Planning Services or their designate in accordance with this Plan”.

81The Tribunal finds that these additional reports provide greater clarity regarding the proposed development and support previously submitted documents. The Tribunal agrees with the Applicant that such a broad and ambiguous “catch-all” provision as emphasized above, appears to be inconsistent with the authority granted by statute.

82The Tribunal identifies that care should be taken that such language inserted into the COP could have the effect of the General Manager of Planning Services, or their designate requiring other information or material above and beyond whatever is specifically listed in the COP as subdelegating the authority granted to the City in a manner not provided for by the legislation.

83The Tribunal concurs with the City that an officer, employee or agent of the City would be appointed by Council for the purposes of approving plans or drawings under s. 41(4) of the Act. However, the Tribunal disagrees with the City’s assertion that external agency comments form part of the basis for deeming the Application complete, and that external agency comments will now have to be collected prior to a determination of completeness.

84The Tribunal disagrees with the City that it was prohibited from making a decision to deem the Application complete due to s. 3(1) and 3(5) of the Act. The consistency with the PPS and conformity with Provincial Plans in effect should be addressed during the approval phase, not at the time of deeming an application complete.

SUMMARY OF FINDINGS

85The matter before the Tribunal is summarized as one of completeness of the Application and not a qualitative review and determination to determine the validity or quality of the information, but rather a determination of whether the ss. 41(3.3) (3.4) are satisfied based upon the submission of the materials prescribed therein.

86The Tribunal therefore exercises its authority to grant the Motion and finds that the Application with respect to the Subject Lands is deemed to be complete as of July 28, 2023 when the Application was submitted to the City.

87The Tribunal wishes to make clear that this is an unusual case with specific factual circumstances that are unlikely to reoccur in other Tribunal proceedings as a result of the enactment of the OPAA.

ORDER

88THE TRIBUNAL ORDERS that the Motion is granted in part.

89THE TRIBUNAL ORDERS that as of July 28, 2023, Industrial Equities Guelph Corporation provided to the City of Guelph, the required plans, drawings, information, and the application fee in support of the Site Plan Application for the property Municipally known as 384 Crawley Road and the Site Plan Application is deemed complete as of July 28, 2023.

“W. Daniel Best”

W. DANIEL BEST

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.