Patterson v. North Kawartha (Township), 2024 CanLII 7658

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 31, 2024

CASE NO(S).: OLT-23-000945

PROCEEDING COMMENCED UNDER subsection 8(1), O. Reg. 586/06 of the Municipal Act, 2001, S.O. 2001, c. 26.

Appellant: Michael Patterson

Description: Shoreline Road Closure, North Kawartha

Reference Number: BL 2023-0021

Property Address: (Lot 25, Concession 7)

Municipality/UT: North Kawartha/Peterborough

OLT Case No: OLT-23-000945

OLT Lead Case No: OLT-23-000945

OLT Case Name: Patterson v. North Kawartha (Township)

PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Ontario Land Tribunal Initiated Motion

Motion Type: Motion for Dismissal Without a Hearing

Heard: In writing

APPEARANCES:

Parties

Counsel

Michael Patterson

Benjamin Markusoff

The Corporation of the Township of North Kawartha

John Ewart

DECISION DELIVERED BY Bita m. Rajaee AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1In accordance with Rule 15.4 of the Tribunal’s Rules of Practice and Procedure (“Rules”), the Tribunal initiated this motion (“Motion”) to determine whether the Appeal filed by Michael Patterson (“Appellant”) should be dismissed without a Hearing on the basis that it does not fall within the jurisdictional purview of the Tribunal (Rule 15.4(b) of the Rules).

2On May 16, 2023, the Tribunal received the Appeal Form (A1) of the Appellant. The Appeal Form indicated that the Appeal pertained to PT Rdal in front of Lot 25, Concession 7, former Township of Chandos, now Township of North Kawartha (“Municipality”), being part of PIN 28271-0885 (LT), and known municipally as 98 Gils Gully Lane, Apsley (“Subject Property”). The Appellant is the Estate Trustee for the Estates of John and Jacqueline Patterson (“Estate”). The Estate owns two lots of lands abutting the Subject Property.

3On March 21, 2023, the Municipality enacted By-law No. 2023-0021, approving an application by Derek Beigelman (the owner of the Subject Property) for the Township to stop up, to close, and to sell the Shoreline Road Allowance PT Rdal in front of the Subject Property to Mr. Beigelman.

4The Appellant appealed the approval of By-law No. 2023-0021 to the Tribunal. The Appellant’s appeal sought a Tribunal ruling that By-law No. 2023-0021, enacted by the Municipality, be vacated. Specifically, the relief sought, as stated on the Appeal Form, was that, “The Township’s Decision should be quashed and the Beigelman Application denied.”

5On July 24, 2023, the Tribunal acknowledged receipt of the Appeal Form, and advised the Appellant as follows:

The Tribunal has received your appeal concerning this matter. In previous correspondence, you noted that the appeal is filed under subsections 474.10.3(1)(b), 474.10.3(1)(i), 474.10.11(1), and 474.10.11(2) of the Municipal Act. It is unclear to the Tribunal how its jurisdiction would apply based upon the provided subsections and appeal package.

You are requested to provide to the Tribunal with further information and/or relevant caselaw outlining how the Tribunal’s jurisdiction under these sections would allow it to proceed and provide the relief sought in your appeal…

6On August 4, 2023, the Appellant’s Counsel responded to the Tribunal by way of a letter in which he provided a number of submissions, described in detail below, in support of the position that the Tribunal does have jurisdiction to hear this matter.

7On September 8, 2023, the Township’s Counsel responded to the Tribunal and the Appellant’s Counsel by way of a letter in which he provided a number of submissions, described in detail below, in opposition to the Appellant’s position.

8On October 5, 2023, the Tribunal provided the Parties with formal Notice that this Motion had been scheduled in writing, in accordance with Rule 10 of the Rules. The Parties were provided with the opportunity to file additional materials and submissions with respect to this Motion. However, neither Party exercised that option.

9As such, in consideration of this Motion, the Tribunal relied on the following materials:

a. EXHIBIT 1: Appeal Form (A1), signed on April 11, 2023;

b. EXHIBIT 2: Appellant’s Letter, dated August 4, 2023; and

c. EXHIBIT 3: Township’s Letter, dated September 8, 2023.

APPELLANT’S POSITION

10The Appellant’s request to the Tribunal, as put forth in Exhibit 2, was “to assert jurisdiction over this matter to assist the Parties in finding a negotiated resolution.” In support of this request, the Appellant’s Counsel relied on a number of submissions.

11First, the Appellant’s Counsel cited and relied on s. 474.10.3(1)(b) of the Municipal Act (“Act”), which is quoted below in this Decision. The Appellant’s Counsel focused on the words “is required by law to obtain,” stating that the Tribunal is permitted to approve any By-law or proposed By-law of a municipality which it is required by law to obtain. In this case, the Municipality was required by law to approve (or deny) By-Law No. 2023-0021. Given that the Tribunal has the authority to approve any By-law, it conversely has the power to deny any By-law by the simple fact that if it decides not to approve a By-law, it consequently denies it. The Appellant, therefore, took the position that s. 474.10.3(1)(b) empowers the Tribunal to review and, if appropriate, deny By-Law No. 2023-0021.

12Second, the Appellant’s Counsel cited and relied on s. 474.10.3(1)(i) of the Act, quoted below in this Decision, submitting that this section empowers the Tribunal to hold a hearing regarding the approval of By-Law No. 2023-0021, given that it is significantly in the interest of the Township’s ratepayers and inhabitants to hold a hearing where allegations of bias and procedural fairness are raised.

13Third, the Appellant’s Counsel cited and relied on ss. 474.10.11(1) and 474.10.11(2) of the Act, quoted below in this Decision, regarding the scope of Tribunal Inquiry. The Appellant’s Counsel submitted that, given the nature of the allegations raised in Exhibit 1, the Tribunal should “at least make inquiries in the Township’s exercise of its powers to approve By-Law No. 2023-0021.”

14Last, the Appellant’s Counsel stated that he “also relies on Sections 8 and 9 of the Ontario Land Tribunal Act, 2021.” No further explanation was provided.

15In conclusion, the Appellant’s Counsel requested that the Tribunal assert jurisdiction in order to determine this matter in the most timely, cost-effective, and fair manner, as the Tribunal has the requisite expertise to determine the matters raised in the Appeal, and the Appellant should not be forced to bring a costly and inefficient Application under s. 273 of the Act.

MUNICIPALITY’S POSITION

16The Municipality provided an opposing position. As detailed in Exhibit 3, the Municipality submitted that the supervisory jurisdiction of the Superior Court, as provided for by s. 273 of the Act, is the proper forum when the validity of a By-law has been brought into question.

17With respect to ss. 474.10.3(1)(b), 474.10.3(1)(i), and 474.10.11(1) and (2) of the Act, the Municipality’s Counsel submitted that these sections are found in Part XVII.0.1 of the Act, and specifically pertain to the Tribunal’s jurisdiction regarding the approval and authorization of financing matters involving municipal corporations. Those sections cited by the Appellant have no bearing on matters set forth in Part III of the Act, and specifically, to any By-law passed by a Municipal Council pursuant to s. 34(1) of the Act as it relates to the closing of a "highway" as defined by s. 26 of the Act.

18With respect to the Tribunal’s jurisdiction, the Municipality’s Counsel relied on ss. 8 and 9 of the Ontario Land Tribunal Act, which define the jurisdiction of the Tribunal, and specify as follows:

8(1) The Tribunal has exclusive jurisdiction in respect of all matters in which jurisdiction is conferred on it by this or any other Act.

(2) The Tribunal has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited by this or any other Act.

9(1) The Tribunal has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred on the Tribunal under this or any other Act.

19The Municipality’s Counsel explained that a municipality’s general authority to regulate its highways, including the closing of a highway which occurred in this case, is set forth in s. 27 of the Act. Moreover, he relied on ss. 31 and 34 of the Act, submitting that the language of both of those sections shows the legislature’s intent that assuming or closing any highway under the jurisdiction of a municipal corporation are decisions to be made only by elected municipal officials, and not decisions which can be imposed on a municipality by the Tribunal. As submitted by the Municipality’s Counsel, neither s. 31 nor s. 34 of the Act authorize the Tribunal to override a statutory scheme clearly established by the Act. In support of that position, the Municipality’s Counsel relied on the case of Mattamy (Rouge) Ltd. v. Toronto (City), 2003 CanLII 7635 (ON SCDC), at paragraphs 41 and 42.

20The Municipality’s Counsel concluded that, while the Tribunal is recognized as a specialized Tribunal, it does not have free-standing jurisdiction, as a Court does, to determine that a municipal By-law, which served to close and convey a portion of shoreline road allowance in accordance with statutory authority, is invalid. The Municipal’s Counsel cited the case of Toronto (City) v. Goldlist Properties Inc., 2003 CanLII 50084 (ON CA) (“Goldlist Case”) in support of that proposition.

ANALYSIS AND FINDINGS

21For the reasons that follow, the Tribunal finds that it does not have jurisdiction to determine the Issue raised by this subject Appeal.

The Tribunal Can Make a Determination on Jurisdiction

22It must first be said that the Tribunal has the ability and power to make a determination with respect to its own jurisdiction. As found in the Goldlist Case, it is within the Tribunal's jurisdiction in a proceeding to decide the boundaries of its jurisdiction in that proceeding. Specifically, the Court of Appeal stated at paragraph 23 of the Goldlist Case that, “…we think it is implicit that one matter within the Board's jurisdiction to decide in a proceeding, for the purpose of carrying out its mandate, is the scope of its jurisdiction in that proceeding.” Of course, this power is not exclusive, nor final, and can always be examined by higher Courts, but it is, regardless, within the Tribunal’s power to evaluate the limitations of its own jurisdiction. As such, the Tribunal can itself address the question of whether it has jurisdiction to proceed with this subject Appeal.

The Tribunal Cannot Determine Whether a By-law is Invalid

23As explained in detail in the Goldlist Case, provided by the Municipality, “…the Board does not have a free-standing jurisdiction, as a court does, to determine that a By-law is invalid” (paragraph 15). That is precisely what the Tribunal is being asked to do in this subject Appeal. However, the Tribunal is a creature of Statute, and its governing legislation sets out its powers. In this case, its powers are confined to making decisions necessarily incidental to carrying out its responsibilities under the Act. As such, an examination of what the Act allows is necessary.

24The Appellant relies on the following provisions of the Act: s. 474.10.3(1)(b); s. 474.10.3(1)(i), s. 474.10.11(1), and s. 474.10.11(2). Each are discussed below.

25S. 474.10.3(1)(b) of the Act states:

474.10.3 (1) The Ontario Land Tribunal has jurisdiction and power in relation to municipal affairs,

(b) to approve any by-law or proposed by-law of a municipality, which approval the municipality voluntarily applies for or is required by law to obtain;

26The Tribunal disagrees with the Appellant Counsel’s interpretation that this section provides the Tribunal with permission to approve any By-law or proposed By-law of a municipality. The Appellant’s Counsel states that it is “Given that the Tribunal has the authority to approve any by-law.” However, it is not clear what the Appellant is relying on, and this section does not provide the Tribunal with that authority. Rather, As expressly clarified in the Goldlist Case, the Tribunal does not have free-standing jurisdiction with respect to a municipality’s By-laws. The Appellant’s Counsel further submits that s. 474.10.3(1)(b) empowers the Tribunal to review or deny By-law No. 2023-0021, but that is not the Tribunal’s interpretation. A reading of this section implies that the Tribunal would have jurisdiction over a By-law that a municipality voluntary refers to the Tribunal, or one that it is required by law to obtain. In this case, however, there is no section that clearly indicates that, in this case, the Municipality was required by law to obtain approval of the Tribunal before approving By-law No. 2023-0021.

27In response to the Appellant’s Counsel, the Tribunal distinguished between the subject Appeal and instances where the Tribunal is specifically asked to approve or deny a By-law, wherein if it does not approve it, it is in effect denying it. That is not the same thing as is happening here, where a By-law has already been approved, and the Tribunal is being asked to overturn it. That requires a different kind of empowering authority, which has not been granted to the Tribunal. The Tribunal notes that it has been granted that sort of role in certain cases, for example in the case of a non-decision of a zoning by-law amendment pursuant to s. 34(11) of the Planning Act. However, that is not the case here and the Municipal Act provisions cited by the Appellant’s Counsel do not provide the Tribunal with the power to overturn the Municipality’s By-law.

28By relying on this section, the Appellant’s Counsel is suggesting that the Municipality is required by law to either approve or deny a proposed By-law, and this, in turn, provides the Tribunal with the authority to rule over the validity of said By-law. However, this inverts the meaning of that section. The Tribunal interprets this section to indicate that in some instances, a municipality may voluntarily refer a By-law to the Tribunal, and in some instances, the relevant statute may require the By-law to be approved by the Tribunal. The Tribunal agrees with the Municipality that this particular case is not one of those instances. Moreover, no section of the Act or other statute has been cited to indicate that in this case the Municipality was required to obtain the approval of the Tribunal prior to making a decision on By-law No. 2023-0021. Again, the Tribunal notes that the Appellant’s interpretation appears to invert this matter. Rather than the Tribunal being able to comment on a By-law that has already been passed, if this section was to apply, then the Tribunal would have had to have been engaged prior to a decision having been made on the By-law.

29S. 474.10.3(1)(i) of the Act states:

474.10.3(1) The Ontario Land Tribunal has jurisdiction and power in relation to municipal affairs,

(i) to inquire at any time into any or all of the affairs, financial and otherwise, of a municipality and hold hearings and make investigations respecting those affairs as may appear necessary to be made in the interest of the municipality, its ratepayers, inhabitants and creditors and particularly to make and hold inquiries, hearings and investigations for the purpose of avoiding any default or recurrence of a default by any municipality in meeting its obligations;

30Part of the Appellant’s basis for this Appeal is the allegation that the Municipality’s approval of By-law No. 2023-0021 was clouded in bias and procedural unfairness. As such, the Appellant cited s. 474.10.3(1)(i), stating that the Tribunal can hold a Hearing to investigate this process and its impact on the ratepayers and inhabitants of the area. However, a reading of this provision does not indicate that the Tribunal can investigate the Municipality’s relationship with its ratepayers and inhabitants, or that bias or procedural unfairness are within the purview of the Tribunal. Rather, it specifically indicates that the Tribunal can hold hearings “for the purpose of avoiding any default or recurrence of a default by any municipality in meeting its obligations.” The purpose for any Hearings has been clearly indicated, and it does not include procedural unfairness or bias on the part of the Municipality.

31As mentioned, the Tribunal is a creature of Statute and can make decisions based on its enabling Statutes. However, whether a municipality acted fairly towards its inhabitants when enacting a By-law is not an issue that is within the jurisdiction of the Tribunal. The limit of its jurisdiction pursuant to s. 474.10.3(1)(b) would be to determine whether the By-law it has been asked (voluntarily) to assess is appropriate, and not whether the process by which the By-law came to be is appropriate. That matter has been entrusted to the Superior Court, through the process of judicial review. As such, even if the Tribunal had jurisdiction to look at the validity of By-law No. 2023-0021, it could not evaluate whether the Municipality’s process in approving that By-law was appropriate. As stated in the Goldlist Case, “neither the Planning Act nor the Ontario Municipal Board Act, nor the Municipal Act…, give the OMB a supervisory jurisdiction over the legislative competency of municipalities. The Board is given supervisory jurisdiction, in this context, over their municipal planning competence.” Thus, matters such as bias or procedural unfairness are not in the jurisdiction of the Tribunal.

32In short, the Tribunal cannot determine the legality of a By-law or invalidate it, and can simply make decisions on questions of law when they are incidental to that By-law. This was confirmed in the Goldlist Case (at paragraph 35 for example, quoted at paragraph [39] of this Decision). As applied to this particular case, the Tribunal would be able to make a decision regarding the implementation or application of this By-law, but cannot make a decision on whether the By-law itself is valid or legal.

33Lastly, s. 474.10.11(1) and s. 474.10.11(2) of the Act state:

474.10.11 (1) The Ontario Land Tribunal may, before approving an application by a municipality for any of the following, make inquiries into the matters described in subsection (2):

1. Approval of the exercise by a municipality of any of its powers.

2. Approval of a by-law. 2021, c. 4, Sched. 6, s. 64 (7).

Same

(2) For the purposes of subsection (1), the matters are the following:

4. Any other matter that the Tribunal considers to be relevant. 2021, c. 4, Sched. 6, s. 64 (7).

34A reading of these sections indicates that these sections engage the Tribunal only when there is an application from a municipality seeking the Tribunal’s involvement and approval. In other words, contrary to the Appellant’s suggestion, the Tribunal does not have the free-standing ability to inquire into a municipality’s power to approve its By-laws. Rather, it can only do so in response to a request (specifically, “an application” as stated in this section of the Act) by a municipality. This Appeal has been brought by an inhabitant of the area, and not by the Municipality. Therefore, a reading of this provision indicates that it does not apply to this particular case. Of note, the Appellant did not provide any jurisprudence in support of his particular interpretation of this section of the Act. As such, this section is being interpreted by the Tribunal based on a simple reading and ordinary usage of the words used. Additionally, in the context of the entire Act, various provisions clarify a specific Party or entity that can take certain actions. As such, in this case, where the “municipality” is specifically identified as the entity bringing the application, it can be understood to mean that the provision applies to those instances specifically.

35Overall, with respect to all four sections of the Act that the Appellant relies on, the Tribunal agrees with the Municipality that a reading of these sections as a whole clarifies that this Part of the Act, specifically Part XVII.0.1, pertains to the Tribunal’s jurisdiction regarding the approval and authorization of financing matters involving municipal corporations. Those sections cited by the Appellant do not appear to have bearing on matters set forth in Part III of the Act, and specifically, to any By-law passed by a Municipal Council pursuant to s. 34(1) of the Act as it relates to the closing of a "highway" as defined by s. 26 of the Act, which is the case here. Thus, the sections cited by the Appellant are not applicable here.

36The crux of the issue is that the Appellant would prefer this matter to be addressed by the Tribunal rather than by the Superior Court. However, the most telling indication on the Tribunal’s jurisdiction here is that there is already an appeal mechanism to the Superior Court for these types of matters, as stated in s. 273 of the Act. By-law No. 2023-0021 pertains to the sale of land by the Municipality, which appears to be dealt with in s. 270(1)(1) of the Act, requiring municipalities to pass policies that deal with the sale of land. Once a By-law is passed by a municipality, the route of appeal is then found in s. 273 of the Act which states:

Application to quash by-law

273 (1) Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality. 2001, c. 25, s. 273 (1).

37Thus, the Tribunal finds that this matter must be addressed by the Superior Court rather than the Tribunal.

38The Tribunal notes that the Court in the Goldlist Case interpreted a similar provision to s. 273 of the Act as follows (at paragraph 19): “We accept, of course, that these provisions confer jurisdiction on the courts to decide the validity of by-laws. This does not, however, mean that the courts necessarily have the exclusive jurisdiction to consider issues of this nature in the circumstances of a case such as the present one.”

39In the Goldlist Case, the matter before the Tribunal was an Official Plan Amendment under the Planning Act and pursuant to a provision of the Planning Act that it regularly has jurisdiction to address. (Of note, it was still found in the Goldlist Case that the Tribunal did not have jurisdiction over the particular aspect of the matter before it.) Thus, the Court of Appeal in the Goldlist Case clarified that in instances where determining the illegality of a By-law is incidental to the matter before the Tribunal, the Tribunal may then have the jurisdiction to determine legality. Specifically, the Court clarified at paragraph 35 of that case:

This appears to draw the distinction between the Board dealing with the validity of a by-law as a free-standing issue, which it cannot do, and making a decision on a question of law as incidental to its administrative functions, which it can do.

40The subject Appeal is entirely distinguishable from that in the Goldlist Case, as the provisions relied upon by the Appellant do not fall under the jurisdiction of the Tribunal. No sections of Statute have been cited to put this matter under the jurisdiction of the Tribunal, and determining legality of the By-law in dispute would be a free-standing issue rather than incidental to the Tribunal’s administration functions. As such, due to the nature of the subject Appeal, it is to be addressed by the Superior Court and not by the Tribunal.

Conclusion

41Thus, for the reasons stated above, the Tribunal finds that this Appeal does not fall under any of the sections of the Act referenced by the Appellant. In fact, those sections that are cited preclude the Tribunal from addressing the validity of By-law No. 2023-0021. Thus, the Tribunal does not have jurisdiction to hear this Appeal, and it must be addressed by the Superior Court of Justice instead.

42Of note, the Appellant requested that the Tribunal at minimum, assist the Parties in “finding a negotiated resolution.” The Tribunal directs that negotiations are always available to Parties in private, and the Parties are welcome to engage in same without the involvement of the Tribunal.

ORDER

43THE TRIBUNAL ORDERS that the appeal by Michael Patterson is dismissed.

“Bita M. Rajaee”

BITA M. RAJAEE

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.