ISSUE DATE: June 14, 2024
CASE NO(S).: OLT-22-002819 (Formerly PL180345), OLT-23-000835
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: The Manors of Belfountain Corp.
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To permit a residential lot development with a draft plan of subdivision on a property within the Minor Urban Centre of Belfountain
Reference Number: 21T-91015C
Property Address: Mississauga Road, Part Lot 9, Concession 5 WHS
Municipality/UT: Caledon/Peel
OLT Case No.: OLT-22-002819
Legacy Case No.: PL180345
OLT Lead Case No.: OLT-22-002819
Legacy Lead Case No.: PL180345
OLT Case Name: The Manors of Belfountain Corp. v. Caledon (Town)
PROCEEDING COMMENCED UNDER section 25(5.1) and (8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N. 2
Appellant: Belfountain Community and Planning Organization (Appeal No. 008872)
Appellant: Town of Caledon (Appeal No. 008873)
Applicant: The Manors of Belfountain Corp.
Respondent: Niagara Escarpment Commission
Subject: Conditions of Approval of a Development Permit Application
Description: To develop a residential lot with 75 units on a property within the Minor Urban Centre of Belfountain
Reference Number: PR/2017-2018/450
Property Address: Part Lot 8 & 9, Concession 5 WHS Mississauga Road
Municipality/UT: Caledon/Peel
OLT Case No.: OLT-23-000835
OLT Lead Case No.: OLT-23-000835
OLT Case Name: Belfountain Community and Planning Organization v. Ontario (Niagara Escarpment Commission)
Heard: May 23, 2024 by Video Hearing
| Parties | Counsel |
|---|---|
| The Manors of Belfountain Corp. | Mark Flowers, Grace O’Brien |
| Town of Caledon | Evan Barz, Paula Boutis |
| Regional Municipality of Peel | Rachel Godley |
| Niagara Escarpment Commission | Ken Hare, Julie Thompson (Articling student) |
| Belfountain Community and Planning Organization Inc. | David Donnelly |
DECISION DELIVERED BY ASTRID J. CLOS AND ORDER OF THE TRIBUNAL
1A second Case Management Conference (“CMC”) was convened by the Tribunal in respect of an appeal filed pursuant to s. 51(34) of the Planning Act by The Manors of Belfountain Corp. (“MBC”) for the failure of the approval authority to make a decision with respect to a Draft Plan of Subdivision application (“DPS”) within the timeframe prescribed by the Planning Act for the property legally described as Part of Lots 8 and 9, Concession 5 WHS (“Subject Property”), located with frontage on Mississauga Road in the Town of Caledon (“Town”).
2The second CMC was also convened by the Hearing Officer in respect of appeals filed pursuant to s. 25(5.1) of the Niagara Escarpment Planning and Development Act (“NEPDA”) by the Town and Belfountain Community and Planning Organization Inc. (“BCPO”) against the decision of the Niagara Escarpment Commission (“NEC”) to conditionally approve a Development Permit Application (“NEC Permit”) for the Subject Property. The Tribunal functions as the Niagara Escarpment Hearing Office (“NEHO”) and the Tribunal Member constitutes as a Hearing Officer for appeals under the NEPDA.
3The purpose of the DPS and the NEC Permit is to facilitate the development of the Subject Property for a 75-lot plan of subdivision for the development of residential lots on private services as well as stormwater management, parkland, open space and buffer blocks (“Proposed Development”).
4Prior to the first CMC, Mark Flowers, Counsel for MBC, submitted a letter to the Tribunal providing notice of his client’s intention to have the appeals heard by the Tribunal at a consolidated hearing pursuant to s. 21 of the Ontario Land Tribunal Act (“OLTA”).
5At the first CMC the Tribunal ruled that the consolidation request was not denied nor determined at that time and would be better considered at a Motion Hearing, returnable at the second CMC on Thursday, May 23, 2024, wherein all Parties could make fulsome submissions.
NOTICE OF MOTION BY MBC
6Mr. Flowers, on behalf of MBC, served and filed a Notice of Motion returnable at this second CMC seeking:
- An Order of the Tribunal confirming that the following matters shall be considered at a consolidated hearing (as defined in subsection 21(1) of the Ontario Land Tribunal Act, 2021 (the “OLT Act”) commencing on February 10, 2025 (the “Consolidated Hearing”):
(a) The Manors’ appeal of its draft plan of subdivision application under subsection 51(34) of the Planning Act, being OLT Case No. OLT-22-002819 (the “Draft Plan Appeal”); and
(b) Appeals of the Niagara Escarpment Commission’s (“NEC”) decision to conditionally approve the Manors’ application for a development permit under subsection 25(5.1) of the Niagara Escarpment Planning and Development Act (the “NEPDA”), being OLT Case No. OLT-23-000835 (the “NEC Permit Appeals”).
- In the event that the Tribunal grants the above noted request, an acknowledgement by the Tribunal that, by operation of subsection 21(6) of the OLT Act, the Tribunal’s decision on a matter in the Consolidated Hearing “stands for all purposes in place of any decision, order or action that is required or may be made or taken by an administrative tribunal that has a power, right or duty to hold a hearing on the matter, or by any other person or body after holding the hearing”, including, if applicable, the Minister of Natural Resources and Forestry (the “Minister”) in respect of the NEC Permit Appeals pursuant to subsection 25(14) of the NEPDA.
7Upon Mr. Flowers’ request, the Tribunal entered the following as Exhibits:
Exhibit 1 – Motion Record of the Manors of Belfountain Corp. dated May 8, 2024.
Exhibit 2 – Notice of Response to Motion of the Niagara Escarpment Commission dated May 16, 2024.
Exhibit 3 – Affidavit of Service by MBC sworn on May 10, 2024
Exhibit 4 – Affidavit of Service by the NEC sworn on May 16, 2024.
MBC’s POSITION ON THE MOTION
8Mr. Flowers, Counsel for MBC, took the Tribunal through the legislative framework of s. 21 of the OLTA, taking great care to outline how the necessary elements for the Tribunal to hold a consolidated hearing have been met in this case. Specifically, it was his submission that,
Notice of the consolidation request was provided to the Tribunal on January 22, 2024, in accordance with s. 21(3) of the OLTA and O. Reg. 351/21: Consolidated Hearings (“O. Reg. 351/21”);
The proposed DPS meets the broad definition of an “undertaking” being an “activity” namely the development of land in accordance with s. 21(1) of the OLTA;
Both appeals are brought through prescribed Acts i.e., the Planning Act and NEPDA in accordance with s. 21(1) of the OLTA and s. 1 of O. Reg 351/21;
Both the Tribunal and the Hearing Office meet the definition of an “administrative tribunal” as defined by s. 21(1) of the OLTA; and,
No regulation exempts the undertaking from the application of s. 21 of OLTA.
9Accordingly, it was Mr. Flowers’ submission that s. 21 of OLTA applies to the appeals.
10Mr. Flowers argued that pursuant to s. 21(6) of the OLTA, the Tribunal’s decision in the Consolidated Hearing stands for all purposes in place of any decision, order or action that is required or may be made or taken by both the Hearing Officer and the Minister.
s. 21(6) The Tribunal’s decision on a matter in a consolidated hearing stands for all purposes in place of any decision, order or action that is required or may be made or taken by an administrative tribunal that has a power, right or duty to hold a hearing on the matter, or by any other person or body after the holding of the hearing. (emphasis added)
11Mr. Flowers referenced para. 22 of Fisher, Re, 2007 CarswellOnt 7278 (O.O.C.H.) where the Joint Board (Tribunal predecessor) stated that it was “essentially standing in the shoes of the Minister under the NEPDA.”
22 In order to analyze the issues in this matter, it is first necessary to identify the applicable statutory regimes that govern Mr. Fisher’s Applications. By virtue of section 5(2) of the CHA, the Joint Board makes decisions in the place of the decision-makers stipulated under the legislation that applies to the individual matters before the Joint Board. For the Development Permit Application, the Joint Board is essentially standing in the shoes of the Minister of Natural Resources under the NEPDA. For the Consent Application, the Joint Board is occupying the role of the OMB under the Planning Act. As a result of section 24(3) of the NEPDA, the approval of the Development Permit Application is a condition precedent to the issuance of the Consent Application. (emphasis added)
12While it was Mr. Flowers’ contention that Rule 16 of the OLT Rules of Practice and Procedure is not directly applicable to consolidated hearings under s. 21 of the OLTA, he applied the criteria to these matters as he found them instructive as to what the Tribunal generally seeks to achieve when consolidating multiple proceedings.
13With respect to the general criteria considered by the Tribunal regarding consolidating matters into one hearing, Mr. Flowers submitted that:
the appeals relate to the same Subject Property and facts;
the same tests with respect to Provincial Policy Statement consistency and conformity with the Niagara Escarpment Plan and Growth Plan must be considered in both appeals;
the overlap in conditions and issues related to each appeal should be heard together to ensure the most efficient use of the Tribunal’s time;
no significant prejudice would result from the consolidated hearing where similar issues, conditions and evidence would be considered;
the motion is undisputed, and no Party has raised the issue of prejudice or fairness with respect to the consolidation request;
a consolidated hearing would avoid the potential for separate, contradictory decisions; and,
the Tribunal has the ability and jurisdiction to deal with all matters related to the appeals in a comprehensive manner.
NEC’s POSITION ON THE MOTION
14Ken Hare, on behalf of NEC, served and filed a Notice of Response to Motion dated May 16, 2024.
15Mr. Hare confirmed that the NEC supports the requests by the Applicant of its Notice of Motion dated May 8, 2024.
16Mr. Hare stated that his client is in agreement with Mr. Flowers that each component is necessary for the consolidation provisions in s. 21 of the OLTA to be applied are satisfied in this instance. He added that notice had properly been given by the Applicant under s. 21(3) of the OLTA.
17Mr. Hare explained that when a Hearing Officer completes a hearing on a development permit appeal under the NEPDA, they do not issue a Decision and Order, but instead, and pursuant to s. 25(11), they prepare a report to the Minister of Natural Resources and Forestry.
25(11) Within 30 days after the conclusion of the hearing or within such longer period as the Minister may permit, the officer appointed shall report to the Minister a summary of the representations made, together with his or her opinion on the merits of the decision.
18Mr. Hare then further explained that the opinion of the Hearing Officer contained in their post-hearing report to the Minister will impact whether the original decision of the NEC comes into effect [s. 25(12)], or whether the Minister becomes seized of the matter and is required to decide on whether to issue the permit [s. 25(14)].
19Mr. Hare then argued that the statutory direction in s. 21(4) of the OLTA for a consolidated hearing effectively addresses the two appeals in a comprehensive manner and avoids different NEPDA and Planning Act hearing and decision making processes.
20Mr. Hare further argued that in this consolidated hearing, pursuant to s. 21(4) to (6) of the OLTA, the Tribunal may make any decision or order that either of the two administrative tribunals (Tribunal and Hearing Office) could have made, or that the Minister could have subsequently made under the NEPDA after the Hearing Officer issues a recommendation report.
21Mr. Hare submitted that he appears in response to this motion to ensure, on behalf of the NEC, that the relevant statutes are being protected and properly interpreted and applied.
22Mr. Hare argued that, where appeal matters have been consolidated, pursuant to s.21(5) of the OLTA, the Tribunal has jurisdiction to make any decision that could have been made by the administrative tribunals on the individual appeals, and any decision that could be made by a person or body after the hearing.
Decision
21(5) The Tribunal may make any decision on a matter in a consolidated hearing that may be made by an administrative tribunal that has the power, right or duty to hold a hearing on the matter, or that may be made by a person or body after the holding of the hearing,
including the granting of any authority or directing the granting or issuing of a permit or licence and the imposition of terms and conditions. (emphasis added)
23Mr. Hare argued that in these appeals in a consolidated hearing the Tribunal fully steps into the shoes of the Minister and can do anything that the Minister could have done.
BCPO’s POSITION ON THE MOTION
24David Donnelly, Counsel for BCPO, confirmed that his client consents to the consolidation request. Mr. Donnelly did not file motion materials and did not make submissions with respect to the motion. Mr. Donnelly did wish to clarify that his client’s position is accurately stated in paragraph 15 of the first CMC decision.
TOWN’S POSITION ON THE MOTION
25Evan Barz, Counsel for the Town of Caledon, confirmed that his client takes no position on the Motion.
REGION’S POSITION ON THE MOTION
26Rachel Godley, Counsel for the Regional Municipality of Peel, confirmed that her client takes no position on the Motion.
ANALYSIS AND FINDINGS
27The Tribunal reviewed the motion materials, heard submissions from Counsel, considered the case law filed by Counsel as well as the relevant statutes and regulations.
28The Tribunal is persuaded that the requirement for notice and the criteria necessary to consolidate the hearings for the DPS and NEC Permit appeals pursuant to s. 21 of the OLTA are met in this case.
29The Tribunal agrees that the proposed development for the Subject Property is not an exempted undertaking pursuant to s. 21(2) of the OLTA or O. Reg. 351/21.
30The Tribunal acknowledges the benefits of granting the requested consolidated hearing to make efficient use of the Tribunal’s resources and avoid duplicative hearings while also being fair and not causing prejudice to the Parties.
31The Tribunal questioned Counsel regarding the ability of the Hearing Officer’s decision to be confirmed if the Hearing Officer decided to change the original NEC Permit decision or to change the conditions without the agreement of all the Parties and not file a report with the Minister who would then confirm or vary the decision pursuant to s. 25 (11) to (14) of the NEPDA.
32Mr. Hare referenced Rizzo & Rizzo Shoes Ltd. Re, 1998 CanLII 837 (SCC), [1998] 1 SCR 27 at para 21. He stated that the Supreme Court of Canada has repeatedly endorsed the modern approach to statutory interpretation which holds that:
…there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament. (emphasis added)
33The Tribunal considered the text of the relevant statutes and specifically s. 21(5) of the OLTA which states that, “The Tribunal may make any decision on a matter in a consolidated hearing that may be made by an administrative tribunal that has the power, right or duty to hold a hearing on the matter, or that may be made by a person or body after the holding of the hearing, including the granting of any authority or directing the granting or issuing of a permit or licence and the imposition of terms and conditions.”
34In the ordinary sense of this text, the Tribunal is persuaded that s. 21(5) of the OLTA provides the authority for the Tribunal to “stand in the Minister’s shoes” when making a decision in respect of the NEC Permit Appeals pursuant to s. 25(14) of the NEPDA for the purposes of a consolidated hearing.
35The Tribunal considered the context of the legislation with respect to the consolidation of hearings.
36Mr. Hare submitted that the legislation should be interpreted in a manner that avoids absurd results. He referenced para. 27 of Rizzo & Rizzo Shoes Ltd, Re,
It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile. (emphasis added)
37Both the Tribunal and the NEHO, as administrative tribunals, are creatures of statute. In order to grant the consolidation of these appeals, the Tribunal holds that it is imperative for the Tribunal Member hearing the merits of these appeals to have the full authority, provided by the relevant statutes, to confirm, vary or make any other decision with respect to the NEC Permit appeal. The Tribunal considers the possibility of the Member not having this discretion in a consolidated hearing as an absurd consequence that would not have been intended by the legislature.
38The Tribunal relies on the context of the wording of s. 21(5) of the OLTA that, “The Tribunal may make any decision on a matter in a consolidated hearing … that may be made by a person or body after the holding of the hearing”. Accordingly, the Tribunal finds that the Tribunal stands “in the shoes of the Minister” in a consolidated hearing.
39The Tribunal considered s. 2 of the OLTA which states that, “This Act … shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.” Accordingly, the Tribunal concludes that the Tribunal Member standing “in the shoes of the Minister” in a consolidated hearing in this case will be provided the opportunity to “secure the just, most expeditious and cost-effective determination of this proceeding on its merits.”
40On the basis of the submissions, the Tribunal finds that this undisputed motion is granted.
ORDER
41THE TRIBUNAL AND HEARING OFFICE ORDERS that the Motion brought by The Manors of Belfountain Corp. is granted.
“Astrid J. Clos”
ASTRID J. CLOS
MEMBER / HEARING OFFICER
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.