Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 29, 2024

CASE NO(S).: OLT-23-000740

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

Appellant: Brock Road Duffins Forest Inc.

Appellant: Kindwin (Brock) Development Corporation

Subject: By-law No. 8024/23

Description: To permit a place of worship and a private school, and to facilitate the construction of a three-storey addition

Reference Number: A 03/16

Property Address: 2065 and 2071 Brock Road

Municipality: City of Pickering

OLT Case No.: OLT-23-000740

OLT Lead Case No: OLT-23-000740

OLT Case Name: Brock Road Duffins Forest Inc. v. Pickering (City)

PROCEEDING COMMENCED UNDER section 8 and 9 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Pickering Islamic Centre

Request for: Request to strike all issues of Kindwin (Brock) Development Corporation

Heard: December 14, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Brock Road Duffins Forest Inc. ("Appellant")	Leo Longo
Kindwin (Brock) Development Corporation ("Appellant")	Alex Lusty, Hannah Ruby
City of Pickering ("City")	Mark Joblin
Pickering Islamic Centre ("PIC")	Raj Kehar, Chantal DeSereville

DECISION DELIVERED BY F. LAVOIE AND JEAN-PIERRE BLAIS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision and Order arise from the second Case Management Conference ("CMC") held regarding Appeals filed by Brock Road Duffins Forest Inc. and Kindwin (Brock) Development Corporation (the "Appellants") pursuant to s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13 ("Act"). The Application for Zoning By-Law Amendment ("ZBA") by PIC seeks to permit a private school and a daycare, to recognize the existing place of religious assembly, as well as to develop a three-storey addition to the place of religious assembly and a two-storey parking structure on the subject lands, municipally known as 2065 and 2071 Brock Road.

PICKERING ISLAMIC CENTRE'S ("PIC") MOTION TO STRIKE

2PIC filed a motion requesting the Tribunal strike all issues raised by one of the Appellants, Kindwin (Brock) Development Corporation ("Kindwin"). PIC submits that the issues raised by Kindwin are not within the jurisdiction of the Tribunal, namely, the enforcement of a private cost sharing agreement as a condition of the ZBA. PIC seeks this relief pursuant to s. 8 and 9 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sch. 6 ("OLTA"). In the alternative, PIC seeks an order striking Kindwin's appeal, pursuant to s. 19(1)(d) of the OLTA, and s 4.6(1)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22., on the basis it is brought in bad faith.

3Kindwin opposes PIC's motion. Kindwin agrees the Tribunal does not have jurisdiction over private agreements. They disagree, however, with the characterization of their issues as the enforcement of a private agreement and submit that cost recovery is a legitimate planning issue. The City and the other Appellant, Brock Road Duffins Forest Inc., did not take a position on PIC's motion.

4The Tribunal marks the following documents as Exhibits:

a. Exhibit 1 – Affidavit of Bryce Jordan, sworn December 5, 2023; b. Exhibit 2 – Affidavit of Julia Curry, sworn November 29, 2023; c. Exhibit 3 – Affidavit of Julia Curry, sworn December 11, 2023; and, d. Exhibit 4 – Affidavit of Mazeda Chowdhury, sworn December 5, 2023.

5Kindwin's impugned issues are as follows:

1. Did Kindwin (Brock) Development Corporation provide land for roads and stormwater services that benefit the Pickering Islamic Centre?
2. Did Kindwin (Brock) Development Corporation incur administration, study, utility, and constructions costs related to roads and stormwater services that benefit the Pickering Islamic Centre?
3. Should the Pickering Islamic Centre be required to reimburse Kindwin (Brock) Development Corporation for its share of the benefit received from land, administration, study, utility, and constructions costs related to roads and stormwater management provided by Kindwin (Brock) Development Corporation consistent with Conditions imposed in OMB Order No. 0737 and a Pickering Islamic Centre Site Plan Agreement dated June 12, 2003?
4. Are Holding Provisions pursuant to s. 36 of the Planning Act authorized by the City of Pickering Official Plan section 16.16?
5. In the absence of Pickering Islamic Centre paying its proportionate share for land, administration, study, utility, and constructions costs related to roads and stormwater management to Kindwin (Brock) Development Corporation (if required), should a Hold Provision be imposed as part of the Zoning By-law Amendment to ensure such contribution is provided prior to further development of the site?

6In summary, Kindwin seeks to impose a Hold provision to PIC's ZBA pursuant to s. 36 of the Planning Act. This section only allows the imposition of a Hold provision if a Municipality's official plan contains provisions relating to the use of same.

7PIC and Kindwin disagree on whether the City's Official Plan ("OP") Holding By-Law provision, the relevant portion of which is set out below, allows the imposition of a holding symbol for the purposes of cost recovery:

City Policy Holding By-laws 16.16 City Council may pass zoning by-laws incorporating holding provisions as provided for in the Planning Act to specify the use to which lands, buildings, or structures may be put at some time in the future, providing: (a) the holding symbol (H) is used only in the following instances: (i) when certain details of development have not yet been determined, or where certain conditions of development have not yet been met such as, but not limited to, development or servicing agreements with the City or Regional Municipality of Durham; [emphasis added]

8Kindwin argues that the cost sharing issue can be considered within the ambit of "... [unmet] conditions of development" for which 16.16(a)(i) of the City's OP allows the use of a holding symbol. In response, PIC states that orderly development of the site has already occurred, and accordingly cost sharing is no longer relevant to the feasibility of the rezoning. Further, PIC argues the dispute is not whether PIC should cost share, but rather a dispute over the amount arising from same. It submits that this type of dispute is a private contractual matter and therefore is outside the Tribunal's jurisdiction.

9The Tribunal finds Kindwin's issues seek to enforce its claim to money it contends it is owed, rather than relating to unmet conditions of development or any other land use planning matter. Indeed, Kindwin's submissions would inevitably bring the Tribunal to inquire into contractual matters, such as whether an agreement exists, what the agreement provides for, and whether sums are still owed under that agreement. Those issues are to be dealt with by the Courts. Accordingly, the Tribunal does not have jurisdiction to impose a holding symbol in these circumstances, and the Tribunal orders Kindwin's issues struck on the basis that they do not raise questions within the jurisdiction of the Tribunal.

10Given the finding above, it is unnecessary for the Tribunal to consider PIC's alternative relief founded on allegations of bad faith.

11PIC submits that if the Tribunal were to strike all of an Appellant's issues, it should also dismiss the Appellant's appeal for want of issues. Kindwin admits it was on notice of this possibility. The Tribunal finds it appropriate to dismiss an Appellant's appeal where no issues remain.

PROCEDURAL ORDER

12Pursuant to the Tribunal's directions after the first CMC, the Parties provided a draft Procedural Order and draft Issues List. Given today's finding on the motion to strike Kindwin's issues, the Tribunal directs the Parties to amend the draft Procedural Order and draft Issues List, and to submit it to the Tribunal within 15 days of the Decision.

HEARING DATES

13Having heard submissions on the length of the merit hearing, the Tribunal directs that a 10-day merit hearing be held as follows: starting on Tuesday, September 3, 2024, at 10 a.m., until Friday, September 6, 2024, and from Wednesday, September 11, 2024, until Wednesday, September 18, 2024 at 10 a.m., by Video Hearing.

14Parties 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:

https://meet.goto.com/765093501

Access Code: 765-093-501

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.

16Persons 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: (Toll Free) 1(888) 455-1389 or +1(647) 497-9391. The access code is as indicated above.

17Individuals 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

18THE TRIBUNAL ORDERS:

a. Kindwin (Brock) Development Corporation's ("Kindwin") issues be struck; b. Kindwin's appeal is dismissed; and, c. The directions in this decision.

19Members of the Panel remain available for case management, subject to the Tribunal's calendar.

"F. Lavoie"

F. LAVOIE MEMBER

"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.