Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 27, 2024

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

PROCEEDING COMMENCED UNDER subsection 34(10.5) of the Planning Act, R.S.O. 1990, c.P. 13, as amended

Appellant: 1000726373 Ontario Inc.

Applicant: 11415573 Canada Inc.

Subject: Motion for Directions

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)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, as amended

Request by: 11415573 Canada Inc.

Request for: Request for Directions

Heard: June 12, 2024 by Video Hearing (“VH”)

Parties and Counsel

1000726373 Ontario Inc. (“Appellant”) Matthew Hodgson

11415573 Canada Inc. (“Applicant”) Denise Baker

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON JUNE 12, 2024 AND ORDER OF THE TRIBUNAL

Introduction and Background

1The underlying Appeal of this matter contests the approval of a Zoning By-law Amendment, which seeks to rezone the subject property to permit a six-storey retirement home with 150 guest rooms.

2The Appellant is a corporation that was created to formally organize a group of area residents for the purpose of bringing the present Appeal. This same group of residents have opposed the proposed development throughout the municipal process. This type of Appeal, whether it is brought by an individual or a corporation, is colloquially referred to as a “Third-Party Appeal”, insofar as it is brought by someone other than an Applicant, the Approval Authority, or the Minister.

3The present hearing was originally scheduled as a Motion to Dismiss the Appeal, brought by the Applicant upon its position that the Appeal was not validly constituted in accordance with s. 34(19) of the Planning Act. However, before the Motion to Dismiss was heard, the Applicant raised issues associated with the recently enacted The Cutting Red Tape to Build More Homes Act, 2024 (“Bill 185”), which received Royal Assent on June 6, 2024, less than one week before the present hearing event.

4In its submissions, the Applicant contends that the enactment of Bill 185 has the effect of having dismissed the Appeal on the day Bill 185 came into force (being June 6, 2024). Consequently, the Applicant further submits, the proposed Motion that would otherwise have been heard on this day, as well as the underlying Appeal, cannot continue.

Bill 185 Issue and Positions of the Parties

5Among other changes to the Planning Act, Bill 185 limits Third-Party Appeals brought pursuant to s. 34(19) of the Planning Act. Important to the present matter, such limitations would prohibit the present Appellant and its individual members from bringing the Appeal if it was brought today. However, since the present Appeal was commenced before the enactment of Bill 185, it is instead subject to certain transitionary provisions. These transitionary provisions, now set out at sections 34(19.0.0.2) (a) and 34(19.0.0.3) of the Planning Act, operate to dismiss the present variety of Appeals unless, prior to April 10, 2024 ("the legislated cutoff date”), the Tribunal has Ordered the scheduling of a Merit Hearing.

6For ease of reference, the relevant transitionary provisions are copied below:

34(19.0.0.2) An appeal under subsection (19) made before the day subsection 5 (7) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force by a person or public body not described in paragraph 1, 2, 2.1, 2.2 or 3 of subsection (19) of this section as it reads on the day subsection 5 (7) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force shall be deemed to have been dismissed on that day unless,

(a) a hearing on the merits of the appeal had been scheduled before April 10, 2024; […]

34(19.0.0.3) For the purposes of clause (19.0.0.2) (a), a hearing on the merits of an appeal is considered to be scheduled on the date on which the Tribunal first orders the hearing to be scheduled, and is not affected by an adjournment or rescheduling of the hearing. [emphasis added]

7To be clear, a dismissal brought under the new sections 34(19.0.0.2) (a) and 34(19.0.0.3) of the Planning Act is deemed to have occurred without any intervention of the Tribunal on the day Bill 185 came into force. Consequently, the Tribunal is not currently tasked with determining whether the Appeal should be dismissed; rather, the Tribunal is tasked with determining whether the Appeal was dismissed on the day when Bill 185 came into force.

8Uncontested facts, as it relates to the above question, are as follows:

1. A Case Management Conference (“CMC”) was held on April 4, 2024. Based on the subsequently written “Memorandum of Oral Decision” issued by Member Ingram on April 18, 2024 (see 1000726373 ONTARIO INC v Greater Sudbury (City), 2024 CanLII 36354 (ON LT)), the following took place at the CMC: a. Service of the Notice for the CMC was confirmed; b. Prospects for resolution were discussed; c. Elements of a draft Procedural Order were considered; and, d. Dates for a Merit Hearing were canvassed with the Parties and five-days were reserved on the Tribunal’s calendar to conduct a Video Hearing, beginning September 16, 2024.
2. An Oral Decision was rendered at the CMC, and the aforementioned written Memorandum of Oral Decision was issued on April 18, 2024, together with an associated written Order. The scheduling of a Merit Hearing is referred to in both the Memorandum of Oral Decision and the Order.

9As previously stated, the Applicant takes the position that, because the Order was not provided until April 18, 2024, after the legislated cutoff date, the Appeal must be deemed to have been dismissed. Relatedly, the Applicant emphasizes that the above cited s. 34(19.0.0.3) of the Planning Act states that “a hearing on the merits of an appeal is considered to be scheduled on the date on which the Tribunal first orders the hearing to be scheduled” [emphasis added]. This means that, according to the Applicant, the scheduling of a Merit Hearing must be formally Ordered by the Tribunal for it to be considered scheduled as contemplated by the statute. The Applicant further argues that it is not enough to merely agree on dates and have such dates reserved on the Tribunal’s calendar to qualify for the Appeal-saving exception provided at sections 34(19.0.0.2) (a) and 34(19.0.0.3) of the Planning Act.

10In further support of its position, the Applicant submits that there is a difference between what constitutes a ‘Decision’ and what constitutes an ‘Order’, and while an oral Decision may have been made at the April 4, 2024 CMC with respect to scheduling, it was not Ordered until a written Order was issued on April 18, 2024.

11In this regard, the Applicant drew the Tribunal’s attention to the aforementioned April 18, 2024 Memorandum of Oral Decision and associated Order, which clearly distinguishes between a Decision and an Order. The main heading of that document reads: “Memorandum of Oral Decision Delivered by Gregory J. Ingram on April 4, 2024 and Order of the Tribunal”. The Applicant’s point is that this text clearly illustrates that an oral Decision was rendered on April 4, 2024, which is summarized in the Memorandum of Oral Decision section of the document, while there is no reference to an oral Order being similarly provided on that same date. Instead, the Applicant submits that the first bona fide Order was not provided until it was issued in writing on April 18, 2024, as set out within the Order section of the same document.

12Additionally, the Applicant highlights the fact that neither the Decision nor the Order were made to come into effect on a date other than the date of issuance (being April 18, 2024), as contemplated pursuant to Rule 24.3 of the Tribunal’s Rules of Practice and Procedure (“Rules”). This Rule states that “[a] Tribunal decision or order is effective on the date that the decision or order is issued by electronic means or in hardcopy, unless the decision or order states otherwise”. The Applicant’s point is that, even if the Tribunal finds that the scheduling of the Merit Hearing was formally or informally Ordered orally on April 4, 2024, Rule 24.3 dictates that the related April 18, 2024 written Memorandum of Oral Decision and associated Order must have stated that such an Order comes into effect prior to the legislated cutoff date, or the Appeal is still deemed to have been dismissed.

13In response, the Appellant takes the position that Bill 185 does not have the effect of dismissing its Appeal, because:

1. it contends that the scheduling of the Merit Hearing was first Ordered orally at the April 4, 2024 CMC, when dates were first reserved for such purposes on the Tribunal’s calendar; or,
2. in the alternative, if the Tribunal accepts the Applicant’s position regarding the implications of applying Rule 24.3, the Appellant contends that the Tribunal has discretion, pursuant to Rule 1.6 and s. 12(2) of the Ontario Land Tribunal Act, 2021, (“OLTA”) to deviate from Rule 24.3, and instead now deem that the oral Order is in effect prior to the legislated cutoff date. The Appellant argues that such a deviation from the Rules is appropriate to provide the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings and, more specifically, because a dismissal of the Appeal will result in wasted time and costs incurred by the Appellant.

Bill 185 Analysis and Decision

14As previously stated, to determine whether Bill 185 has the effect of dismissing the present Appeal, the Tribunal must determine when it first Ordered the scheduling of the Merit Hearing. To be clear, the Tribunal accepts the Applicant’s position, insofar as the scheduling of a Merit Hearing must be formally Ordered by the Tribunal for it to be considered ‘scheduled’ as contemplated by the statute. The Tribunal comes to this conclusion given that the word “orders” is included at s. 34(19.0.0.3) of the Planning Act, and it is trite law that the legislature avoids superfluous or meaningless words. Put another way, the legislature’s intent is clear and unambiguous, insofar as it requires the scheduling of a Merit Hearing to be Ordered for it to qualify for the exception provided at s. 34(19.0.0.2) (a) of the Planning Act.

15The determination of when the Tribunal first Ordered the scheduling of the Merit Hearing is a question of fact. The Tribunal is faced with two possible answers, as presented by the Parties: April 4 or April 18, 2024. To scope the question further, since there is no contest that such an Order was issued on April 18, 2024, the Tribunal must determine whether it first Ordered the scheduling of the Merit Hearing on April 4, 2024.

16To address this question, the Tribunal elects to initially examine the difference between a Decision and an Order. The analysis will follow with an examination of the Tribunal’s typical practices and procedures associated with conducting a CMC and subsequent issuance of a formal written Memorandum of Oral Decision and associated Order. Building upon these findings, the analysis will then conclude with the Tribunal’s ultimate finding of whether or not it first Ordered the scheduling of the Merit Hearing on April 4, 2024.

17The Tribunal notes that this analysis will concurrently consider the Parties’ respective submissions concerning principles of statutory interpretation. The Tribunal confirms that it has interpreted the new sections 34(19.0.0.2) (a) and s. 34(19.0.0.3) of the Planning Act through an examination of the plain and ordinary meaning of the text of the provisions (including the inclusion of the word “orders”), while simultaneously considering the respective context (including the Tribunal’s typical practices and procedures, together with the implications of Rule 24.3) and purpose of the surrounding legislation.¹

18To begin, the Tribunal recognizes that there is clearly a difference between a Decision and an Order. Such a difference is demonstrated in countless legal references and other examples which treat the two elements as distinct and separate products of the adjudicative process.²

19To put a finer point on it, the Tribunal accepts that a Decision can be defined as an outline of an adjudicator’s judgement, and may include findings, reasons, and the surrounding narrative-context of a Decision. By contrast, the Tribunal finds that an Order can be defined as an outline of an adjudicator’s directions. Furthermore, to constitute a bona fide Order, the Tribunal finds that such directions must be sufficiently detailed, clear, and otherwise capable of providing cogent instructions for a Party to carry out a specific task, duty or obligation.

20Next in its analysis, the Tribunal examines its typical practices and procedures associated with conducting a CMC, and the same as it relates to eventually rendering a written Memorandum of Oral Decision and associated Order.

21The Tribunal finds that a CMC typically involves a Hearing whereby various case management matters are discussed and decided by the presiding Tribunal Member. This frequently includes deciding on subsequent hearing dates, as well as various other items listed at Rule 19.1. Following a CMC, and typically several days later, the Member who presided at a CMC will issue a formal written Memorandum of Oral Decision, depicting the essence of the oral Decisions made at that CMC. Additionally, as part of the same written document, the Tribunal will typically issue a written Order to give material effect to the Tribunal’s CMC Decisions. If dates for a subsequent hearing were decided at the CMC (i.e. upon canvassing dates with the Parties and reserving such dates on the Tribunal’s calendar), the written Order will typically include a provision referencing such dates, as well as the time when the hearing will commence, and log-in information for a video hearing or location for an in-person hearing.

22Further on this point, the Tribunal recognizes that there is context and practical reasons for the lag-time which typically exists between conducting a CMC and issuing a formal written Memorandum of Oral Decision and associated Order. For example, electronic log-in details for a video hearing are not immediately available to a Member when they are canvassing and reserving dates for a Hearing. Such information is determined later and will eventually form part of the written Memorandum of Oral Decision and associated Order. Another example, pertaining to establishing a Procedural Order to govern the proceedings, involves the Parties submitting a revised draft copy of a Procedural Order to the Tribunal for its consideration several days after the CMC. Upon receipt of said revised copy, the presiding Member will review it, and, if it is acceptable, attach it to the eventual written Order pertaining to the CMC. It is noteworthy that the scheduling of Merit Hearing dates also form part of a Procedural Order.

23Next in its analysis, having considered the above, the Tribunal turns to addressing the ultimate question of when it first Ordered the scheduling of the Merit Hearing.

24The Tribunal finds that the present matter’s April 4, 2024 CMC served to discuss and organize a number of case management matters associated with the Appeal, including the canvassing of dates for a Merit Hearing, reserving such dates on the Tribunal’s calendar, and determining the contents of a Procedural Order. Decisions were made in this respect by Member Ingram at the CMC; however, the Tribunal does not find that a bona fide Order was provided by him on that day, as contemplated by the newly enacted provisions of the Planning Act.

25The Tribunal further finds that these facts are consistent with the Tribunal’s common CMC-hearing practices, insofar as a bona fide Order generally follows the CMC in conjunction with a written Memorandum of Oral Decision. In fact, the Tribunal finds that this is expressly evident within Member Ingram’s written Memorandum of Oral Decision issued on April 18, 2024. In that document, the Tribunal finds that an account of the April 4, 2024 oral Decision is covered, but there is no mention of a similar oral Order being provided on that day. There is also no mention of an intention to make either the Decision or the eventual written Order effective prior to the legislated cutoff date, as could have been the case pursuant to Rule 24.3 of the Rules.

26Additionally, while it is not determinative of the Tribunal’s ultimate findings, the Tribunal notes that the present Appeal Record shows that the final revised draft Procedural Order (which includes the scheduling of Merit Hearing dates) was not provided to the Tribunal by the Parties until April 12, 2024 – two days after the legislated cutoff date. Consequently, the Tribunal finds that it was impossible to Order the scheduling of Merit Hearing dates through the Procedural Order prior to the legislated cutoff date. Furthermore, on account of this fact, it was similarly impossible to otherwise render the complete written Order that was eventually issued on April 18, 2024 (which includes both directions associated with the Procedural Order, and separate scheduling of the Merit Hearing), prior to the legislated cutoff date.

27In conclusion, the Tribunal finds, as a fact, that the scheduling of a Merit Hearing was not first Ordered at the CMC, nor was it otherwise provided prior to the legislated cutoff date. As a result, the Tribunal finds that the Appeal is deemed to have been dismissed pursuant to the newly enacted provisions of the Planning Act, and neither the planned motion for the present day nor any other aspect of the underlying Appeal may continue.

28To address the Appellant’s alternative position, requesting that the Tribunal practice its discretion under Rule 1.6 and s. 12(2) of the OLTA, and deviate from Rule 24.3 to deem the effective date of its April 18, 2024 Order to precede the legislated cutoff date, the Tribunal declines to do so. The Tribunal declines because such a practice would squarely defeat the clear objective and purpose of the Rule, effectively rendering it meaningless. Additionally, from a fairness standpoint, the Tribunal finds that it would be just as unfair to the Applicant to allow the Appeal to continue. Moreover, the Appellant is in no worse position from a fairness standpoint compared to any other Appellant who has similarly had their Appeal dismissed by Bill 185. Lastly, and, independently from the Tribunal’s other reasons to decline deviation from Rule 24.3, the Tribunal finds that such an action would serve to undermine the clear intent and purpose of the newly enacted transitionary provisions of the Planning Act, insofar as the statute has set a hard deadline to dismiss certain matters.

ORDER

29The Tribunal Orders that the Appeal by 1000726373 Ontario Inc. cannot continue upon it having been dismissed pursuant to sections 34(19.0.0.2) (a) and 34(19.0.0.3) of the Planning Act.

“K.R. Andrews”

K.R. ANDREWS 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.

Footnotes

1. 1See: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27, at para. 21; and La Presse inc. v. Quebec, 2023 SCC 22 at para. 22-24
2. 2See, for example: the contents of the present matter’s April 18, 2024 Memorandum of Oral Decision and associated Order, and the language of the aforementioned Rule 24.3).