Credit Valley Residents Association et al v. Brampton (City), 2024 CanLII 81262

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 22, 2024

CASE NO(S).: OLT-23-001209

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Credit Valley Residents Association & Kaneff Properties Limited

Subject: Proposed Official Plan Amendment No. OP2006-254

Description: To permit the amendment of the Credit Valley Secondary Plan Area 45

Reference Number: OPA 2006OP-254

Property Address: The intersection of Queen Street West and Creditview Road, extending westerly to Elbern Markel Drive and easterly towards Springbrook Creek

Municipality/UT: Brampton

OLT Case No.: OLT-23-001209

OLT Lead Case No.: OLT-23-001209

OLT Case Name: Credit Valley Residents Association et al v. Brampton (City)

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

Request by: Crystal Homes (Wildflowers) Corporation

Request for: Request for Dismissal Without a Hearing

Heard: May 24, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Credit Valley Residents Association	Samir Shah*
Springbrook Community Management Inc.	Douglas Pateman
Kaneff Properties Limited	Mark Flowers Kevin Flowers
City of Brampton	Eugenia Bashura
Cal-Markell Developments Inc.	David Bronskill
AVM Developments Inc.	Laura Dean
Crystal Homes (Wildflowers) Corporation	Alex Lusty

MEMORANDUM OF ORAL DECISION DELIVERED BY Carmine Tucci on May 24, 2024 AND ORDER OF THE TRIBUNAL

1This second Case Management Conference (“CMC”) was held in respect of three Appeals namely OLT 23-001209, OLT 23-001186 and OLT 23-001187.

2The Tribunal determined after conducting a review under Bill 185, the Appeals of OLT Case Nos. OLT 23-001186 and OLT 23-001187 do not meet the required criteria and therefore have been dismissed.

3OLT 23-001209 is the remaining appeal by the Credit Valley Residents Association (“CVRA”) and Kaneff Properties Limited (“Kaneff”) pursuant to s. 17(24) of the Planning Act (“Act”) with respect to Official Plan Amendment 254 (“OPA 254”).

4The purpose of the CMC was to receive status updates from all parties, to organize the hearing of these Appeals and to hear the Motion filed by Crystal Homes (Wildflowers) Corporation (“Crystal Homes”).

MOTION

5The Tribunal was presented with a Motion to dismiss the Appeal by the Credit Valley Residents’ Association (the “CVRA Appeal”) as against 1626, 1646, and 1654 Queen Street West in the City of Brampton (the “Crystal Homes Site”) without a Hearing.

Grounds for the Motion

6The Tribunal heard that the CVRA Appeal:

• Discloses no grounds upon which the CVRA Appeal could be allowed;

• Indicates that it is frivolous;

• Makes it clear that there is no reasonable prospect of success; and,

• Confirms it relates to a matter that is outside the jurisdiction of the Tribunal.

Background: The Crystal Homes Site

7On December 22, 2021, Crystal Homes filed an update of its site-specific Official Plan Amendment (the “Crystal Homes OPA”), Zoning By-law Amendment (the “Crystal Homes ZBA”) and Plan of Subdivision (the “Crystal Homes Subdivision”) applications for the Crystal Homes Site (the “Crystal Homes Applications”).

8A Site Plan Approval application was subsequently submitted on April 25, 2022 (the “Crystal Homes SPA”).

9On June 20, 2022, the City held a statutory public meeting to obtain feedback from the public. David McKay, Crystal Homes’ land use planner was present and numerous deputations were made on behalf of the CVRA.

10The June 20, 2022, minutes were then forwarded to Council for consideration during its August 5, 2022, meeting at which City Staff were instructed to convene a further public meeting.

11The additional public meeting took place on October 23, 2023, when the Crystal Homes Applications returned to the City’s Planning and Development Committee. The Staff Report before the Planning and Development Committee recommended approval of the Crystal Homes Applications.

12The Planning and Development Committee report proceeded to Council on November 1, 2023. It was then that Council voted to enact By-laws Nos. 1852023 and 186-2023, being the Crystal Homes OPA and ZBA. The City issued notice of Council’s decision regarding the Crystal Homes OPA and ZBA on November 14, 2023.

13The Appeal period for the Crystal Homes OPA and ZBA closed December 4, 2023. The City Clerk issued their statutory declaration that no Appeals were received on or before December 11, 2023.

14Pursuant to s. 17(28) and 34(22) of the Act the declaration of the Clerk is conclusive evidence of the fact that no Appeals were filed, and the decisions are therefore final. In accordance with s. 17(27) and 34(21) of the Act the Crystal Homes OPA and ZBA came into force on December 5, 2023.

15Subsequent to the enactment of the Crystal Homes OPA and ZBA, on April 25, 2024, City Staff issued Notice of Draft Plan of Subdivision Approval

16The Tribunal heard that the Appeal period for the Draft Plan of Subdivision Approval expired May 15, 2024, and pursuant to s. 51(39) of the Act CVRA was not permitted to Appeal the April 25, 2024, Decision due to the fact that the CVRA is not the Applicant, the Minister, a “public body” or “specified person” as defined in s. 1 of the Act, or a municipality.

17Being that the Crystal Homes SPA has not yet received final approval, CVRA would not be permitted to appeal that decision either.

Credit Valley Residents Association Appeal

18The Appeal is dated November 20, 2023, and states the Appeal is in relation to the following City of Brampton By-laws:

a. By-law No.169-2023 – The City-initiated amendment to the Springbrook Tertiary Plan.

b. By-law No. 170-2023 - A site-specific amendment to the Springbrook Tertiary Plan initiated by Cal-Markell Developments Inc. (“Cal-Markell”)

c. By-law No. 171-2023 – A site-specific amendment to the City’s Zoning By-law initiated by Cal-Markell.

19To ensure that any decision arising from the Appeal of By-law No. 169-2023 did not conflict with Crystal Homes’ approvals, a request for consent to party status was sent to the CVRA on January 12, 2024. The CVRA consented to Crystal Homes becoming a Party in correspondence dated February 5, 2024.

20In response to inquiries from Mr. Bronskill, Counsel to Cal-Markell, the CVRA produced a set of issues on March 18, 2024. Arising from the first CMC and as documented in the April 5, 2024 decision:

a. Crystal Homes was confirmed as a Party given its interest in protecting its existing development approvals; and,

b. CVRA was given a deadline of April 15, 2024 to confirm whether it intended to scope its Appeals by geographic area, prepare a revised issues list, and give clarification on the disciplines it intended to call evidence from.

21Following the CMC event on March 20, 2024, Crystal Homes advised the CVRA in writing of the Crystal Homes Applications status and the fact that they were not subject to appeal. Crystal Homes expressed the view that the CVRA Appeal as against the Crystal Homes Site was moot and asked that the CVRA exclude the Crystal Homes Site from its appeal.

22A response from the CVRA dated April 16, 2024, did not indicate CVRA was scoping or otherwise withdrawing its’ Appeal as it pertained to the Crystal Homes Site.

No Grounds Upon Which the Credit Valley Residents Association Appeal Could be Allowed

23Section 17(45)(1)(i) of the Act empowers the Tribunal to dismiss an appeal without a hearing if the reasons in the notice of appeal do not disclose any apparent land use planning ground upon which the plan or part of the plan that is subject to the appeal could be approved or refused by the Tribunal.

24The CVRA did not Appeal the Crystal Homes OPA and ZBA, which were finally approved and have been in effect since December 5, 2023.

25The By-laws pertaining to the Crystal Homes Site are not before the Tribunal, nor could they be, as they have not been Appealed and it is too late to do so now.

26The CVRA’s “belief” that the Crystal Homes Site is within the scope of the Appeal is insufficient to surmount the legal operation of the Act. Though the CVRA’s Issues List uses land use policy references and terminology doing so does not make them worthy of adjudication.

27The Tribunal heard that the CVRA Appeal is moot because pursuant to s. 24(4) of the Act, the Crystal Homes ZBA is now deemed to conform with the City’s Official Plan and cannot be changed.

28The Tribunal heard the CVRA Appeal is not worthy of adjudication because it cannot accomplish what the CVRA would like it to, which is a change in the built form approved for the Crystal Homes Site along Queen Street West.

Credit Valley Residents Association Appeal is Frivolous

29Section 17(45)(1)(ii) of the Act permits the Tribunal to dismiss frivolous appeals without a hearing. The same power is afforded through a combination of s. 19(1)(d) of the Ontario Land Tribunal Act (“OLTA”), s. 4.6(1)(a) of the Statutory Powers and Procedures Act (“SPPA”) and Rule 15.4(a) of the Ontario Land Tribunal Rules of Practice and Procedure (the “Rules”).

30The Ontario Municipal Board considered the meaning of frivolous in the case Midland (Town) Zoning By-law No. 94-50, 9 16 Re2. There, in the context of a cost decision, the Tribunal set out an appellant’s obligation to prepare and provided a means of understanding the term “frivolous”.

31The analytic structure, which does not require every element to be fulfilled, is:

a. Amount of preparation undertaken, which relates to considering the merits of the appeal, the evidence to be called, the chance of success, the expenses involved, and the risk of costs;

b. The knowledge and experience offered; and,

c. . The purity of the motive.

32The Tribunal heard that the CVRA Appeal lacks the required preparation and in turn is frivolous.

33When advised that their Appeal against the Crystal Homes Site was moot on March 20, 2024, no response was provided indicating that the CVRA had considered the merit of their Appeal against the Crystal Homes Site, the evidence involved, and their chance of success.

34The CVRA appears to put Crystal Homes to the cost of a hearing on the mere “belief” that their Appeal can have the effect they desire when it is clear it cannot because the Crystal Homes ZBA will remain unchanged.

35The CVRA’s lack of preparation has resulted in a failure to appreciate the CVRA’s position which demonstrates a lack of seriousness consistent with a frivolous appeal.

The Credit Valley Residents Association Appeal has No Reasonable Prospect of Success

36Section 19(1)(c) of the OLTA permits dismissal of an appeal without a hearing where the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.

37The Crystal Homes OPA is in effect as confirmed by the declaration of the City Clerk on December 11, 2023.

38The Tribunal heard that the Springbrook Tertiary Plan Amendment Appealed by CVRA was enacted on October 18, 2023. The Crystal Homes OPA was enacted on November 1, 2023. Therefore, the Crystal Homes OPA amended the Springbrook Tertiary Plan, not the other way around. Accordingly, the Tribunal has no power over the Crystal Homes OPA because it does not add, amend or revoke provisions Appealed by CVRA.

39The CVRA Appeal as against the Crystal Homes Site should be dismissed without a hearing because there is no reasonable prospect of success.

Credit Valley Residents Association Appeal Involves Matters Outside the Jurisdiction of the Tribunal

40Section 19(1)(d) of the OLTA confirms that s. 4.6 of the SPPA applies to matters before it.

41Section 4.6(1)(b) of the SPPA confirms, in turn, that dismissal without a hearing is permissible where the appeal relates to matters outside the jurisdiction of the Tribunal as confirmed by Rule 15.4(b) of the Rules.

42City Council’s decision with respect to the Crystal Homes OPA is final because there was no Appeal; it has been in effect since December 5, 2023. The Crystal Homes OPA is not before the Tribunal thus, it is excluded from the scope of its power by s. 17(50.1) of the Act.

43The Tribunal sought a rebuttal to the Motion from the CVRA representative, Mr. Shah.

44Mr. Shah provided to the Tribunal, that on behalf of the CVRA, he fully supported the Motion brought forward.

Findings

45The Tribunal finds that the reasons set out in the Notice of Appeal, do not disclose any apparent land use planning opinions whatsoever upon which the subject of the appeal, could be approved or refused by the Tribunal.

46The Tribunal finds the lack of preparation to these proceedings by the Appellant demonstrates the Appeal is frivolous and is made only for the purpose of delay.

47The CVRA Appeal is not worthy of adjudication because it cannot accomplish what the CVRA would like it to, which is a change in the built form approved for the Crystal Homes Site along Queen Street West.

48The Tribunal finds, as the objective of the appeal cannot be achieved and there is no reasonable prospect of success that the motion shall be granted and that the appeal will be dismissed without holding a full hearing.

NEXT STEPS

49The Parties informed the Tribunal that they are seeking a third CMC to finalize and present on consent an updated Issues List.

50The Tribunal hereby schedules a third CMC commencing on Friday, September 13, 2024 at 10 a.m. by video hearing.

51Parties 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://global.gotomeeting.com/join/519389173

Access Code: 519-389-173

52Parties 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

53Persons 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 as indicated above.

54Individuals 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

55THE TRIBUNAL ORDERS that the Motion is granted and the appeal by the Credit Valley Residents Association against Crystal Homes is dismissed.

56There will be no further notice and this Member is not seized.

“Carmine Tucci”

CARMINE TUCCI

MEMBER

Ontario Land Tribunal

Website: 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.