1000726373 Ontario Inc. v. Greater Sudbury (City), 2024 CanLII 53855

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 06, 2024

CASE NO(S).: OLT-23-001256

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

Appellant: 1000726373 Ontario Inc.

Subject: By-law No. 2010-100Z

Description: To permit a six-storey retirement home and related accessory uses, to rezone from “FD”, Future Development to "R3-1 Special”, Medium Density Residential Special

Reference Number: 751-6/22-09

Property Address: 0 Algonquin Road

Municipality/UT: Greater Sudbury

OLT Case No.: OLT-23-001256

OLT Lead Case No.: OLT-23-001256

OLT Case Name: 1000726373 Ontario Inc. v. Greater Sudbury (City)

Heard: May 28, 2024 by Telephone Conference Call

APPEARANCES:

Parties	Counsel
1000726373 Ontario Inc. (“Appellant”)	Matthew Hodgson
11415573 Canada Inc. (“Applicant”)	Denise Baker Katherine Chan

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA ON MAY 28, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This Hearing was the second Case Management Conference (“CMC”) held by Telephone Conference Call (“TCC”). It involves an Appeal of the City of Greater Sudbury’s (“City”) approval of a Zoning By-law Amendment (“ZBA”) to permit the construction of a six-storey retirement home with related accessory uses on the property known as 0 Algonquin Road, Concession 5, Township of Broder (“Subject Property”).

2The City did not attend the TCC and had indicated prior to the initial CMC that it would not be participating in the Appeal.

3It is noted that at the initial CMC, a five-day Hearing of the Merits was set to commence on Monday, September 16, 2024 at 10 a.m. by Video Hearing and that there is a Procedural Order in effect.

UPDATE

4Prior to the TCC, through email correspondence with the Tribunal, the Applicant raised the issue that the Appeal was not validly constituted and asked that it be administratively dismissed as 1000726373 Ontario Inc. was incorporated after the Council meeting approving the ZBA and therefore did not make oral or written submissions prior to the Council decision as required in s. 34(19) of the Planning Act (“Act”). The Appellant put forth that as both Kerri-Lynne Smania’s name and 1000726373 Ontario Inc.’s name appear on the Appeal form, and as Ms. Smania did make submissions prior to the Council decision, the Appeal is valid.

5There were several subsequent emails exchanged between Counsel for the Applicant and the Appellant debating the validity of the Appeal. It was requested by Ms. Baker (in her May 3, 2024 email to the Tribunal) that the Tribunal convene a further hearing event either by telephone or video to "discuss this matter further”, which led to the scheduling of this TCC.

6There were no documents filed by either Party until the eve of the TCC, when the Applicant submitted nine documents, followed approximately two hours later by the Appellant’s submission of six documents. On the morning of the TCC, the Applicant submitted one additional document and the Appellant submitted a document and video link.

7At the TCC, it was clear that the Parties had come with differing expectations as to what was to occur. Ms. Baker intended to obtain relief from the Tribunal following arguments regarding the validity of the Appeal, while Mr. Hodgson understood it to be an update call to discuss the setting of a date for a Motion(s) on the issue of the validity of the Appeal. He clarified that he had only filed documents in response to Ms. Baker’s last-minute filings and highlighted that the determination of the validity of an appeal is generally not done by way of a teleconference. It is noted that the Tribunal had the same understanding as Mr. Hodgson and had not expected to hear arguments or provide any relief at this TCC.

8Further discussion ensued. Ms. Baker clarified that her client was not bringing forward a Motion to dismiss but was asking the Tribunal to exercise its authority to declare the Appeal invalid as the preconditions outlined in s. 34(19) of the Act had not been met. Mr. Hodgson’s position remained that the requirements to make submissions in advance of the Council’s decision had been met.

NEXT STEPS

9The Tribunal notes that extinguishing an Appellant’s right to appeal is not taken lightly. In this case, there is a dispute regarding the validity of the Appeal, and the Appellant ought to be afforded the opportunity to make a fulsome response. Given the last-minute nature of the filing of documents and the lack of any formal Motion materials, the Tribunal is of the opinion that the Appellant was not afforded a reasonable opportunity to provide a fulsome response.

10In the interest of fairness, the Tribunal determined that a formal Motion would be the most appropriate course of action and directed the Applicant to bring a Motion per Rule 10 of the Tribunal’s Rules of Practice and Procedure. Ms. Baker confirmed at the TCC that a Motion for Direction on the validity of the Appeal would be brought forward. The Parties agreed to the following dates for the submission and exchange of materials:

1. June 4, 2024 – Applicant’s Notice of Motion;
2. June 7, 2024 – Appellant’s Notice of Response to Motion; and
3. June 10, 2024 – Applicant’s Reply Submission (if any).

11The Motion will be heard on Wednesday, June 12, 2024 by Video Hearing commencing at 10 a.m. It is noted that Mr. Hodgson highlighted a prior commitment at 2 p.m. on that date, but after discussion, the Parties agreed that this could be accommodated in order to make that date work.

12The Hearing is scheduled to proceed by Video Hearing on Wednesday, June 12, 2024 at 10 a.m.

13Parties are asked to log in to the hearing event at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/909787981

Access code: 909-787-981

14Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9391 or Toll-Free 1-888-455-1389. The access code is as indicated above.

15Parties are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available:

https://app.gotomeeting.com/home.html

16Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the video hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

17The Tribunal Orders its directions as set out above.

18The Member is not seized and no further notice is required.

“S. Bobka”

S. BOBKA

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.