2824143 Ontario Inc. v. Deseronto (Town), 2024 CanLII 55818

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 14, 2024

CASE NO(S).: OLT-23-001208

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 2824143 Ontario Inc.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit a total of 249 dwelling units

Reference Number: 12T-21-001

Property Address: Part of Block F, Registered Plan No. 162, Part of the Road Allowance Between Concession A and 2, South of the Road and Part of Lot 40, Concession 2 South of the Road, Geographic Township of Tyendinaga, Town of Deseronto, County of Hastings

Municipality/UT: Town of Deseronto / County of Hastings

OLT Case No.: OLT-23-001208

OLT Lead Case No.: OLT-23-001208

OLT Case Name: 2824143 Ontario Inc. v. Deseronto (Town)

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

Request by: 2824143 Ontario Inc.

Request for: Request for Directions

Heard: May 30, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
2824143 Ontario Inc. ("Applicant")	Spencer Putnam
County of Hastings ("County")	Jennifer Savini
Mohawks of the Bay of Quinte ("MBQ")	Jordan Sewell

MEMORANDUM OF ORAL DECISION DELIVERED BY JEAN-PIERRE BLAIS ON May 30, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is a Motion filed by the MBQ for an order dismissing the appeal filed by the Applicant because it relates to matters outside the jurisdiction of the Tribunal. The Motion to Dismiss is brought pursuant to s. 19(1)(d) of the Ontario Land Tribunal Act, S.O 2021, c. 4 ("OLT Act"), s. 15.4 of the Tribunal’s Rules of Practice and Procedure, and s. 4.6(1) of the Statutory Powers and Procedures Act, R.S.O. 1990. C. S. 22. The MBQ did not specifically mention s. 51(53) of the Planning Act, R.S.O. 1990, c. P. 13, as amended ("Act"), but did state they would rely of s. 51 of the Act.

2The Applicant seeks to develop a site in the Town of Deseronto, of approximately 8 hectares, described as "Part of Block F Registered Plan No. 162, Part of the road allowance between Concession A and 2 South and Part of Lot 40, Concession 2 South of the Road" ("Subject Property"). The proposed development would include the construction of 249 dwelling units, including 30 single detached dwellings, 155 townhouse units and 64 apartment units. To this end, the Applicant had filed with the County a draft plan of subdivision. The Appeal is brought pursuant to s. 51(34) of the Act due to the County’s non decision.

3The Subject Property is comprised of vacant cultivated meadows.

4On March 25, 2024, the Tribunal held a Case Management Conference ("CMC") to organize the appeal, address status requests and establish next steps in this proceeding. At that CMC, the MBQ were granted Party Status by a panel of the Tribunal differently constituted.

POTENTIAL SETTLEMENT

5On the morning of the Motion Hearing, the Parties informed the Tribunal that the Applicant and the MBQ had come to a conditional agreement whereby the MBQ would purchase the Subject Property from the Applicant. Counsel for the MBQ informed the Tribunal that the closing has been set for June 21, 2024. If the sale is finalized, Counsel for the Parties stated that the Applicant would withdraw its appeal.

6At this stage, it is not certain that the appeal will be withdrawn. Therefore, the Tribunal must set out the next steps with respect to the Motion to Dismiss based on the two scenarios: (a) the appeal is not withdrawn and the Motion to Dismiss must be considered; or (b) the appeal is withdrawn and consideration of the Motion to Dismiss is no longer required.

7Based on the first scenario, the Tribunal inquired as to whether the Attorney General of Canada and the Attorney General of Ontario had been served with Notice of a constitutional question pursuant to Rule 11.1 of the Tribunal’s Rules of Practice and Procedure. Counsel for the MBQ informed the Tribunal that such a Notice had not been served.

NOTICE TO THE ATTORNEYS GENERAL

8The MBQ’s Notice of Motion is based on two grounds: (a) the application for subdivision of the Subject Property was not made by an "owner"; and (b) the Tribunal does not have authority to apply the Act to lands that the Government of Canada "acknowledges were never surrendered to the Crown by the MBQ, may be reserved and therefore under the exclusive federal jurisdiction pursuant to the Constitution Act, 1867".

9Essentially, the MBQ maintains that, since there was never surrender of the Subject Property as required by the 1793 Simcoe Deed (also known as Treaty 3 ½) and by the Royal Proclamation of 1763, the Subject Property continues to be reserve land and the Indian Act, R.S.C 1985, c. I-5, is the appropriate statutory authority to subdivide the Subject Property. They submit that if the Tribunal were to accept to adjudicate this appeal on the merits, it would implicitly determine that the land is not a reserve, an issue which, in their view, the Tribunal has no jurisdiction to adjudicate.

10By contrast, the Applicant opposes the Motion to Dismiss and maintains that it is currently the sole registered owner of the Subject Property by virtue of the Land Titles Act, R.S.O. 1990, c. L.5.

11Pursuant to s. 8(2) of the OLT Act, the Tribunal has jurisdiction to hear and determine all questions of law with respect to all matters within its jurisdiction. This includes the constitutional law arguments advanced by the MBQ in support of its Motion to Dismiss.

12However, Rule 11.1 of the Tribunal’s Rules of Practice and Procedure requires an important threshold procedural step, namely notice to the Attorney General of Canada and Attorney General of Ontario, to allow them to decide whether they intend to participate on this matter at this stage in the proceeding and make submissions to the Tribunal, if any.

13The Motion of the MBQ raises a question about the constitutional validity of a matter before the Tribunal, including whether the Subject Property is subject to Federal or Provincial jurisdiction. Thus, if the Tribunal eventually must consider the Motion to Dismiss, a Notice of a constitutional question must first be served on the Attorney General of Canada and the Attorney General of Ontario pursuant to Rule 11.1 of the Tribunal’s Rules of Practice and Procedure.

NEXT STEPS

14Considering the above, the Tribunal concludes that the adjournment of the Motion Hearing is necessary to allow time for either: (a) the Applicant to withdraw its appeal rendering the Motion to Dismiss moot; or (b) if the Motion to Dismiss is to be heard, because the appeal has not been withdrawn, to serve the Attorneys General with Notice of a constitutional question in a timely way.

15Counsel for the MBQ submits that, if required, service of the Notice of constitutional question could be done relatively quickly and a second date to hear the Motion to Dismiss could be set within a timeframe which would allow the Attorneys General to indicate their intention to participate, to file their submissions and to allow the other Parties to respond to the submissions of the Attorneys General, if any.

16The Tribunal directs the Applicant to file its withdrawal as soon as practicable after the sale has been finalized.

17Alternatively, if the sale is not finalized, the Tribunal directs that the MBQ to serve on the Attorney General of Canada and the Attorney General of Ontario, by no later than June 25, 2024, the Notices of a constitutional question substantially in the same form as required under the Rules of Civil Procedure. The MBQ is further directed to provide to the Parties and file with the Tribunal proof of service of both Notices of a constitutional question. The MBQ is also directed to serve on the Attorneys General copy of this Decision by no later than June 25, 2024.

18If the appeal is not withdrawn, the Tribunal directs that the Motion Hearing is to be continued at 10 a.m. on Thursday August 15, 2024, by Video Hearing. At the Motion Hearing, the Parties and the Attorneys General are expected to address the Motion to Dismiss. The Tribunal directs that if the Attorney General of Canada or the Attorney General of Ontario wish to participate in the Motion Hearing on the Motion to Dismiss, they must:

a. Serve on the Parties and file with the Tribunal their intention to participate in the hearing of the Motion to Dismiss by Monday, July 15, 2024; and,

b. Serve on the Parties and file with the Tribunal their submissions on the Motion to Dismiss, if any, by Wednesday, July 31, 2024.

19If the Parties or the Attorneys General wish to respond to the submissions of the Attorney General of Canada or the Attorney General of Ontario, the Tribunal directs that they must serve their Response on the Parties and the participating Attorneys General and file their Response with the Tribunal by Friday, August 9, 2024.

20The Hearing is scheduled to continue by video on August 15, 2024 at 10 a.m.

21Parties and Participants are asked to log into the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections.

GoTo Meeting: https://global.gotomeeting.com/join/709076365

Access Code: 709-076-365

22Parties and Participants 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.

23Individuals who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is: 709-076-365.

24Individuals 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 Hearing by video 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

25THE TRIBUNAL ORDERS as follows:

a. The Motion Hearing on the Motion to Dismiss brought by the MBQ is adjourned to the date and time directed above by the Tribunal;

b. Its directions in this Decision; and

c. The Member is seized.

Jean-Pierre Blais

JEAN-PIERRE BLAIS

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.