Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 07, 2024

CASE NO(S).: OLT-23-000806

PROCEEDING COMMENCED UNDER subsection 41(3.7) and (3.8) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Requested by: Shoal Bayly Ontario Inc.

Subject: Motion for Determination

Description: Motion for directions to have the Tribunal determine whether all plans, drawings, information and material have been provided

Property Address: 727 Shoal Point Road

Municipality/UT: Ajax/Durham

OLT Case No: OLT-23-000806

Legacy Lead Case No: OLT-23-000806

OLT Case Name: Shoal Bayly Ontario Inc. v. Ajax (Town)

Heard: October 26, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Shoal Bayly Ontario Inc.

John Alati Hannah Ruby

Town of Ajax

John Hart Andrew Biggart (in absentia)

DECISION DELIVERED BY s. dixon and s. gopikrishna AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This Decision and Order arises from a Motion for Directions made by Shoal Bayly Ontario Inc. (“Shoal”) pursuant to ss. 41(3.7) and (3.8) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), concerning the refusal by the Town of Ajax (“Town”) to accept and process three Site Plan Approval applications (together, “Site Plan Applications”) respecting the development of lands legally described as Part of Lot 4, Range 3, Concession Broken Front Pickering, Parts 1 and 2 on Plan 40R26089, Town of Ajax, and known municipally as 727 Shaol Point Road (“Subject Lands”).

2The Site Plan Applications seek to develop Blocks 64, 65, and 66 of the Draft Plan of Subdivision (“DPS”) for the Subject Lands with 147 dwelling units, 110 dwelling units, and 208 dwelling units, respectively.

Notice

3An Affidavit of Service sworn by Hannah Ruby on October 25, 2023 was filed with the Tribunal and marked as Exhibit 1. The Affidavit of Service indicates that notice was served by way of email on October 11, 2023. No concerns were raised with the service of notice.

Background

4Magnum Opus Developments (Ajax) Corp., the previous owner of the Subject Lands, initiated OPA, ZBA, and DPS applications (together, “Initial Applications”) to facilitate the development of a residential subdivision on the Subject Lands.

5On July 18, 2017, the Ontario Municipal Board issued an Order approving the Initial Applications in principle, subject to the finalisation of each planning instrument. The planning instruments were not finalised and, on May 19, 2023, Shoal submitted revised OPA, ZBA, and DPS applications with the Town.

6On June 29, 2023, Shoal submitted electronic versions of the Site Plan Applications to the Town. Included in the submissions were copies of all materials required by s. 41 of the Act, the Town’s Official Plan (“TOP”), the Town’s Application for Site Plan Approval form, and the Town’s Site Plan Review Manual.

7On June 30, 2023, Shoal attempted to submit hard copies of the Site Plan Applications, along with the corresponding application fees, in person.

8The Town refused to accept the Site Plan Applications on the basis that, as required by the Town’s approved Site Plan Control By-law No. 11-2014 (“SPC By-law”) and Pre-Consultation By-law No. 82-2022 (“PAC By-law”):

1. The revised OPA, ZBA, and DPS required to facilitate the proposed development on the Subject Lands were not yet in force; and

2. A pre-application consultation (“PAC”) meeting had not yet occurred for the Site Plan Applications.

REQUESTED RELIEF

9The Motion Record filed by Shoal, dated October 11, 2023 and marked as Exhibit 2 (“Motion”), requests three Orders of the Tribunal, as follows:

1. An Order compelling the Town to accept and process the Site Plan Applications;

2. An Order deeming either June 29, 2023 or June 30, 2023 as the date of submission of the Site Plan Applications for the purposes of ss. 41(3.7) and (3.8) of the Act; and

3. An Order pursuant to ss. 41(3.7) and (3.8) of the Act determining that all prescribed plans, drawings, information, and material have been provided by Shoal and the Site Plan Applications are therefore complete.

10The Town filed a Responding Motion Record, dated October 19, 2023 and marked as Exhibit 3 (“Response Motion”), which requests an Order of the Tribunal dismissing Shoal’s Motion on the basis that Shoal unnecessarily initiated the Motion as Shoal has also initiated two court proceedings seeking the same relief and determination on the same issue, being a question of law, thereby triplicating the issues.

11In the alternative to the relief requested above, the Town’s Response Motion requests an Order dismissing Shoal’s Motion on the basis that the Town followed a proper process when refusing to accept Shoal’s Site Plan Applications, pursuant to the provisions of the Act. That process is outlined in the Response Motion as follows:

1. An applicant must first receive approval of an OPA, ZBA, and/or DPS, and same must be in effect prior to the Town processing a PAC request.

2. Once the OPA, ZBA, and/or DPS are in effect, the Town shall then process the PAC request and the applicant shall participate in a PAC meeting with the Town.

3. Once the applicant has participated in the PAC meeting with the Town, then, and only then, is the applicant permitted to formally submit a complete site plan application to the Town for processing.

ISSUES

12Two primary issues can be distilled from the requested reliefs above and the submissions of each Party at the Hearing, being:

1. Can/should the Tribunal hear the Motion despite the related Court proceedings initiated by Shoal; and

2. Does the Act provide the Town with the authority to refuse to accept the Site Plan Applications on the basis that Shoal did not follow the processes established by the SPC By-law and the PAC By-law?

13Contingent upon the outcome of the two primary issues above are the following secondary issues:

3. Have the plans, drawings, information, and materials required or prescribed by the Act for the submission of a complete application been provided by Shoal; and

4. If so, what date should the Site Plan Applications be deemed complete?

CHRONOLOGY OF EVENTS

14The following chronology of relevant events has been drawn from all motion materials provided by the Parties, including the sworn affidavits and corresponding exhibits of:

• Ryan Guetter, Executive Vice President of Weston Consulting;

• Darrin Cohen, Planner at Weston Consulting;

• Ulysses Perkunder, Planner at Weston Consulting; and

• Bruno Scopacasa, Supervisor of Development Approvals, Planning and Development Services at the Town.

15November 15, 2022: Shoal provides the Town with development concept plans for Blocks 64, 65, and 66 of the Subject Lands via email and requests options for receiving feedback on same.

16November 25 to 28, 2022: A without prejudice email exchange between Shoal and Mr. Scopacasa takes place regarding Shoal’s development concepts for Blocks 64, 65, and 66 on the Subject Lands. The Affidavits of Messrs. Scopacasa and Guetter confirm that the email exchange includes confirmation by Mr. Scopacasa that the development concepts have been circulated for full review and comment by staff. During the email exchange, initial comments on the development concepts are provided by the Town and responses to same are provided by Shoal.

17December 12, 2022: Town Council adopts OPA No. 71, implementing By-law 80-2022, and the PAC By-law. OPA No. 71 is subsequently appealed to the Tribunal and remains under appeal at the time of the Hearing. The PAC By-law is not appealed and is currently in force.

18January 20, 2023: The Town provides Shoal with additional comments and requests regarding the proposed development concepts.

19May 19, 2023: Shoal submits the revised OPA, ZBA, and DPS applications for the development of Blocks 64, 65, and 66 on the Subject Lands. The resubmission materials include the proposed site plans for Blocks 64, 65, and 66, as requested by Mr. Scopacasa.

20Late May 2023: Shoal and the Town engage in preliminary discussions regarding the submission of the Site Plan Applications.

21June 2, 2023: Mr. Scopacasa provides his position to Shoal that submission of the Site Plan Applications, “cannot occur until zoning is in place and the block associated with the application has been created through the registration of the subdivision.” When asked to clarify whether the Site Plan Applications can be submitted with the understanding that they cannot be approved until the ZBA and DPS are finalised, Mr. Scopacasa provides a brief response stating, “Bill 109 does not permit this to happen.” The Tribunal notes that Bill 109 refers to the More Homes for Everyone Act, 2022 (“More Homes Act”).

22June 12, 2023: Shoal emails Mr. Scopacasa requesting a PAC meeting for the purposes of discussing the proposed Site Plan Applications for Blocks 64, 65, and 66. Included in the email is a copy of a cheque in the amount of $2,800 for the Pre-Consultation Phase 1 or Phase 2 application fee (“PAC fee”).

23June 13, 2023: Shoal delivers hard copy materials associated with the PAC meeting request for the Site Plan Applications, including a signed application form, conceptual site plan, draft plan of subdivision, functional servicing and stormwater management report, legal survey, and payment of the required PAC fee, to the Town. The PAC materials and PAC fee are accepted, date stamped, and processed by Town staff. A receipt for the “Pre-Con Phase 1 – 727 Shoal Point” PAC fee in the amount of $2,800 is issued to Shoal.

24June 20, 2023: Shoal follows up on their PAC meeting request and asks that same be scheduled at the next available opportunity and before June 27, 2023 (14 days after the PAC fee was accepted). Mr. Scopacasa confirms that the request is being processed by staff.

25June 21, 2023: The Town responds to Shoal noting that June 27, 2023 or earlier dates are not available for a PAC meeting, as PAC meetings (specifically referenced in the Town’s email as “Pre-Consultation Phase 1 meetings” in accordance with the PAC By-law) are only scheduled on a bi-weekly basis, with the most recent PAC meeting having occurred on June 20, 2023. The Town further notes that materials for PAC meetings are typically circulated to reviewers two weeks in advance of the meetings. The Town provides Shoal with a link to schedule the requested PAC meeting.

26June 23, 2023: Shoal schedules a PAC meeting for the earliest available date provided by the Town, being July 18, 2023, using the link provided by the Town.

27June 29, 2023: Shoal proceeds to email the Site Plan Applications for the Subject Lands, including accompanying submission materials, copies of the application fee cheques, and signed application forms via file sharing links. Shoal acknowledges that a PAC meeting has been scheduled for July 18, 2023, but notes that there has been considerable consultation with Town staff on the Site Plan Applications to date.

28June 30, 2023: Shoal attempts to submit physical copies of the Site Plan Applications and the corresponding application fees to the Town. Town staff refuse to accept the Site Plan Applications on the basis that the PAC meeting has not yet taken place.

29June 30, 2023: Following the attempted Site Plan Applications submission, the Town provides a follow-up email to Shoal stating that the Town is not in a position to accept any site plan application submission and that in order to formally submit the Site Plan Applications, Shoal first needs to complete the Town’s mandatory PAC process.

30June 30, 2023: Following the attempted Site Plan Applications submission, Mr. Scopacasa emails Shoal to inform them that, in accordance with the Town’s PAC By-law, the Town will not be accepting the submitted Site Plan Applications as the revised OPA, ZBA, and DPS that will govern the Subject Lands have not been approved. Nevertheless, Mr. Scopacasa advises Shoal that the Town is willing to address Shoal’s request for pre-consultation by hosting a PAC meeting for the Site Plan Applications outside of the Town’s standard process, “as a pre pre-consultation.” Mr. Scopacasa further acknowledges that his colleague has already reached out to Shoal with available dates for a meeting (see Paragraph [25], above).

31July 6, 2023: The Town requests that the PAC meeting be rescheduled from July 18, 2023 to August 1, 2023 because of email/server issues that the Town was experiencing on June 23, 2023 – the day Shoal submitted the PAC meeting request using the link provided by the Town. The Town further states that staff will be unavailable for the July 18, 2023 meeting. Shoal confirms their availability for August 1, 2023 and the Town reschedules the PAC meeting accordingly.

32July 27, 2023: Shoal files an application for Judicial Review with the Divisional Court pursuant to the Judicial Review Procedure Act regarding the Town’s refusal to accept the Site Plan Applications (see Paragraph [35]).

33July 31, 2023: Shoal files an application with the Superior Court of Justice under Rule 14.05(3) of the Rules of Civil Procedure regarding the applicable development charges for the Site Plan Applications (see Paragraph [35]).

34July 31, 2023: Mr. Scopacasa notifies Shoal via email that, “Tomorrow’s pre-consultation meeting has been cancelled under advisory of the Town’s solicitor due to the recently filed Superior Court of Justice applications (July 27, 2023) [sic] for the subject lands. The Town will be refunding your [PAC] application fee.”

ANALYSIS AND FINDINGS

Issue 1: Triplication of Issues

35Shoal has commenced two separate court proceedings related to the relief being requested in the Motion:

1. An Application for Judicial Review pursuant to the Judicial Review Procedure Act seeking:

a) a declaration that the Town did not have authority to refuse to accept the Site Plan Applications;

b) an Order setting aside the Town’s decision to refuse to accept the Site Plan Applications; and

c) a mandatory injunction and an Order in the nature of mandamus requiring the Town to accept the Site Plan Applications effective June 30, 2023 or, alternatively, June 29, 2023; and

2. An Application under Rule 14.05(3) of the Rules of Civil Procedure seeking a declaration that, pursuant to ss. 26.2(1)(a) of the Development Charges Act, the Town and the Region of Durham must determine the total amount of development charges payable for the redevelopment of the Subject Lands in accordance with the Town Development Charge By-law and Regional Development Charge By-law in effect at the time Shoal attempted to submit the Site Plan Applications on June 30, 2023 or, alternatively, June 29, 2023.

36In the Response Motion, the Town contends that Shoal has unnecessarily brought the Motion before the Tribunal, as the Motion seeks the same relief and determination of issue that is being sought in the Court proceedings. It is the Town’s position that, should the Tribunal decide on the relief requested by the Motion, “either party (depending on the outcome of the Tribunal’s decision) is bound to seek Leave to Appeal the Tribunal’s decision to court, based on the question of law, which will have the effect of triplicating the issues.”

37Shoal filed a Reply to the Response Motion on October 23, 2023 (“Reply Motion”), which was marked as Exhibit 4. In the Reply Motion, Shoal contends that they were entitled to bring the Motion pursuant to s. 8(2) of the Ontario Land Tribunal Act, 2021, which grants the Tribunal the authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction. The Motion, Shoal further contends, pertains to a question of law within the Tribunal’s jurisdiction per ss. 41(3.7) and (3.8) of the Act.

38John Alati, counsel for Shoal, further argued that Shoal was exercising its legal rights in commencing both the Motion before the Tribunal and the concurrent applications before the Courts. He directed the Tribunal to Embee Properties Limited et al., 2003 CarswellOnt 10873, Ontario Office of Consolidated Hearings, wherein it was decided that the proponents’ pursuit of multiple proceedings should not be viewed as anything more than a full exercise of the proponents’ legal rights.

39Shoal’s Reply Motion further posits that a decision from the Tribunal on the issues identified in the Motion may negate the need to continue with their related Court proceedings or, alternatively, narrow the scope of the issues before the Court. A decision and Order of the Tribunal, Shoal proffers, would promote a more timely and efficient resolution of this matter and would not necessarily triplicate the issues.

40The Tribunal agrees with the submissions of Shoal. The Tribunal has the jurisdiction to hear matters pertaining to the Act and, in this instance, a question of law pertaining to ss. 41(3.7) and (3.8). The mechanism for dispute established in those subsections is a motion for directions to the Tribunal.

41The Tribunal is not convinced that the potential for the matters at hand to be heard more than once is sufficient reason to delay their fair, just, and expeditious resolution. Shoal’s related Court proceeding under the Judicial Review Procedure Act is scheduled to be heard the week of June 24, 2024. A hearing date for the second related Court proceeding had not yet been scheduled at the time the Tribunal heard the Motion. A decision and Order from the Tribunal will promote a more timely and efficient resolution of this matter, including potentially negating or narrowing the issues to be heard by the Courts.

Issue 2: Refusal to Accept Applications

42As detailed in Paragraph [8] of this Decision, the Town refused to accept Shoal’s Site Plan Applications on the grounds that, in accordance with the SPC By-law and the PAC By-law: (1) the revised OPA, ZBA, and DPS required to facilitate the proposed development on the Subject Lands had not been finalised; and (2) a PAC meeting had not yet occurred for the Site Plan Applications.

43Mr. Alati contends that the Town did not have the authority to refuse the Site Plan Applications under s. 41(3.5) of the Act on any basis, including that the Site Plan Applications could not be accepted until an OPA and/or a ZBA were in effect or until a DPS was draft approved, or that the PAC meeting had not yet occurred.

44The Tribunal acknowledges that the Town’s SPC By-law and PAC By-law are in full force and effect and are not under appeal at this Hearing. However, in determining the Motion that is before the Tribunal – a motion pursuant to ss. 41(3.7) and (3.8) of the Act – the Tribunal must consider the entirety of the Act and whether, in this instance, the Town’s refusal to accept the Site Plan Applications contradicts any provisions thereto.

Timing and Scope of Consultation

45In considering the above, the Tribunal first turns to ss. 41(3.1) and (3.2) of the Act, which state:

Consultation

(3.1) The council may, by by-law, require applicants to consult with the municipality before submitting plans and drawings for approval under subsection (4). 2022, c. 12, Sched. 5, s. 7 (1).

Same

(3.2) Where a by-law referred to in subsection (3.1) does not apply, the municipality shall permit applicants to consult with the municipality as described in that subsection. 2022, c. 12, Sched. 5, s. 7 (1).

46Read together, the above subsections of the Act provide both a municipality and an applicant with the statutory authority to consult with the other party before an application is submitted. The distinction is that a municipality’s authority to require consultation with an applicant first requires the enactment of a by-law. In the absence of said by-law, an applicant is still authorised (though not required) to consult with the municipality.

47The Act does not differentiate between the scope of consultation contemplated under either ss. (3.1) or (3.2). Accordingly, a plain reading of the term “consult” should be applied equally when interpreting a municipality’s authority under ss. (3.1) and an applicant’s authority under ss. (3.2), such that consultation held pursuant to one provision is not implicitly more onerous than consultation held pursuant to the other. In other words, the Tribunal does not take the distinguishing requirement for a by-law in ss. (3.1) as a suggestion by the legislature that a municipality has free range to expand the scope of consultation beyond a plain reading of the term, nor impose any number of conditions pertaining to same, particularly if doing so creates an extreme inequity within the legislation.

48By way of example, the Tribunal gathers from the materials and submissions of the Town that the requirement to enact a consultation by-law under s. 41(3.1) provides for the following under s. 41 of the Act:

1. Subsection (3.1) enables a municipality to require consultation, by by-law, before an application can be submitted. The by-law may contain any required provisions pertaining to the consultation.

2. If the requirements for consultation as outlined in the municipal by-law have not been met, then the application cannot be submitted.

3. Once the consultation has occurred in accordance with the municipal by-law, then and only then may an applicant attempt to submit an application.

4. The municipality may then refuse to accept or consider the application if the requirements of ss. (3.5) have not been met.

5. Only then may an applicant rely on the provisions of ss. (3.7) or (3.8) to make a motion for directions to the Tribunal, if necessary.

49The Tribunal does not find that the above interpretation is supported by a plain and complete reading of s. 41 of the Act. Conversely, interpreting the Act in the manner set out above results in the potential for extremely inequitable consequences of the Act, whereby a municipality can create a de facto prohibition on site plan applications by enacting a by-law that confers sole discretion upon the municipality to determine if and when the required consultation can occur. The municipality may prevent or delay the submission of an application by requiring an applicant to attend a specific meeting at a specific time, which can be delayed, rescheduled, or cancelled by the municipality – all of which occurred in the case at hand – without any remedy for relief by the applicant, thereby rendering the remainder of s. 41 irrelevant. Surely, this is not the spirit or intent of the Act, nor of the recent legislative amendments thereto – including the More Homes Act – intended to accelerate the supply of housing.

50On a related note, and in response to Mr. Scopacasa’s June 2, 2023 assertion that the More Homes Act does not permit site plan applications to be reviewed at the same time as other corresponding applications, the Tribunal agrees with Mr. Alati’s submission (supported by the Affidavit of Mr. Guetter) that while municipalities may prefer the sequential processing of related applications in an effort to avoid having to either refuse applications or reimburse application fees as a result of a non-decision, the More Homes Act does not actually prevent the concurrent review of multiple related applications.

Requirement for an Approved OPA, ZBA, and DPS

51Sections 6 and 7 of the PAC By-law state that, where a site plan requires an OPA, ZBA, or DPS, a PAC meeting will not be processed until those instruments are in effect or draft approved, as the case may be.

52Mr. Alati contends that the PAC By-law alone is insufficient to impose such a restriction and that the requirement for those materials must be explicitly contained in the TOP, as required by s. 41(3.4) of the Act:

Other information

(3.4) A municipality may require that an applicant provide any other information or material that the municipality considers it may need, but only if the official plan contains provisions relating to requirements under this subsection. 2022, c. 12, Sched. 5, s. 7 (1).

53The Town’s Response Motion directs the Tribunal to Policy 7.1.15 of the TOP, which does in fact contain provisions in Policy 7.1.15 a) relating to the PAC By-law, which in turn contains a requirement for a completed OPA, ZBA, and/or DPS as a pre-condition to consultation. However, the Tribunal notes that the PAC By-law is only referenced in Policy 7.1.15 a) of the TOP in relation to the requirement to pre-consult with the Town and not in relation to the required information or materials contemplated by s. 41(3.4) of the Act, which are contained in Policy 7.1.15 i) of the TOP.

54While confirmation of an approved OPA, ZBA, or DPS might constitute “information” as contemplated by the Act (though the Tribunal is not making a determination in that regard at this time), s. 41(3.4) is clear that any other information or material can only be required by a municipality if the official plan contains provisions relating to requirements under that subsection.

55To that end, Policy 7.1.15 i) of the TOP lists the studies, reports, and information that may be required to be submitted as part of a complete application for an OPA, ZBA, DPS, and Draft Plan of Condominium, but does not include any complete application requirements for site plan or site plan amendment applications. While the latter instruments are proposed to be added to Policy 7.1.15 i) through OPA No. 71, neither the in-effect policy nor the proposed amendments thereto include the requirement for confirmation of an approved OPA, ZBA, or DPS as part of a complete application.

56On that point, the Tribunal takes direction from former Chair of the Tribunal M. Hubbard and Executive Vice Chair S.W. Lee in Top of the Tree Developments Inc., Re, 2007 CarswellOnt 7921, [2007] O.M.B.D. No. 1116, 58 O.M.B.R. 113, contained in Shoal’s Book of Authorities. At Paragraph 15, Ms. Hubbard and Mr. Lee state the following:

Yes, a Municipality can surely demand for materials and the information in the course of an evaluation of an application at any given time. There is and never was a legislative impediment for it to do so via its policy in an Official Plan. But the Municipality cannot demand it for the purpose of a complete application, and only pursuant to some tangential policy. The proviso specifically requires the underlying demand to be done "under this subsection". In short, the proper requirement is not just for any evaluative purposes; it must be for the purpose of a complete application.

57Applied to the case at hand, if the Town desires the completion of an OPA, ZBA, and DPS prior to the submission of a site plan application, it must be explicitly stated in the TOP as a requirement under s. 41(3.4) of the Act (i.e., Policy 7.1.15 i)), and not as a requirement pursuant to a tangential policy on consultation (i.e., Policy 7.1.15 a)). The requirement for consultation provided for in s. 41(3.1) of the Act pertains only to the submission of plans and drawings under s. 41(4), and not to the approval of any other planning instrument.

Requirement for Consultation as Grounds to Refuse an Application

58Section 41(3.5) of the Act sets out the grounds upon which a municipality may refuse to accept or further consider an application:

Refusal and timing

(3.5) Until the municipality has received the plans and drawings referred to in subsection (4), the information and material required under subsections (3.3) and (3.4), if any, and any fee under section 69,

(a) the municipality may refuse to accept or further consider the application; and

(b) the time period referred to in subsection (12) of this section does not begin. 2022, c. 12, Sched. 5, s. 7 (1).

59The provisions above do not include the failure to consult under ss. (3.1) as grounds for a municipality to refuse to accept an application. If it were the intent of the legislature to elevate the requirement for consultation to a matter that constitutes the ability to refuse an application, it would have done so by referencing ss. (3.1) in ss. (3.5).

Conclusion

60The Tribunal finds that, with respect to Issue 2, the Town’s refusal to accept the Site Plan Applications was not authorised by the provisions of the Act, nor does said refusal uphold the spirit and intent of same. While s. 41(3.1) of the Act provides the Town with the authority to require consultation in advance of the submission of the plans and drawings listed in s. 41(4), that provision should not be improperly used to delay the acceptance or processing of an application, nor as a means to circumvent the Tribunal’s jurisdiction to determine a complete application pursuant to ss. 41(3.7) or (3.8).

61The Tribunal is satisfied that, in this instance, the intent of s. 41(3.1) has been met through the considerable consultations between the Town and Shoal on the Site Plan Applications beginning in November 2022.

Issue 3: Plans, Drawings, Information and Materials

62The materials submitted for the Site Plan Applications are detailed at Paragraph 39 of Mr. Guetter’s Affidavit and are included in full at Exhibits “V”, “W”, “X”, and “Y” to same.

63As set out in Paragraph 28 of Mr. Guetter’s Affidavit, materials for the Site Plan Applications were prepared in accordance with the Town’s Application for Site Plan Approval form, the Town’s Site Plan Review Manual, and Sections 5 (Descriptions of Studies and Reports that May Be Required for Complete Applications) and 7 (Implementation and Administration) of the TOP.

64At Paragraph 50 of his Affidavit, Mr. Guetter notes that, through the Site Plan Applications that were submitted digitally and that were subsequently attempted to be submitted in person, Shoal provided the Town with all plans, drawings, information, and materials required by s. 41 of the Act, including all of the plans and drawings referred to in s. 41(4) of the Act.

65The Tribunal is satisfied that the submitted materials include all of the information, materials, plans, and drawings required or prescribed by s. 41 of the Act. The Tribunal has no evidence before it to suggest that any other materials ought to have been prepared or submitted as part of the Site Plan Applications.

Issue 4: Timing of Complete Application

66The Town asserts that it was following its normal process when it refused to accept the Site Plan Applications. Shoal contends that the Town departed from its alleged normal practice by not only accepting Shoal’s formal PAC meeting request and the PAC fee, but by further instructing Shoal to book the PAC meeting on more than one occasion, leading to the reasonable expectation that the Town was prepared to accept the submission of the Site Plan Applications.

67Shoal first requested a PAC meeting for the Site Plan Applications on June 12, 2013, and formally submitted the required materials and PAC fee on June 13, 2023. One week later, they followed up on their request and specifically asked that the PAC meeting be held before June 27, 2023.

68While the Town was not obligated to host a PAC meeting before June 27 – or by the time Shoal attempted to submit the Site Plan Applications on June 30, for that matter – the Tribunal finds that Shoal’s request in that regard was reasonable, being two weeks after the PAC meeting request and PAC fee were accepted by the Town. However, as a result of the Town’s adopted practice to only hold PAC meetings on specific dates (which is not a provision of the PAC By-law), the earliest available opportunity for Shoal to attend the formal PAC meeting was July 18, 2023, which the Town subsequently rescheduled to August 1, 2023, before ultimately cancelling the meeting altogether.

69As submitted by Mr. Alati, Shoal attempted to undertake the Town’s formal PAC meeting process but was precluded from securing the meeting in a timely fashion. The Town was not willing to hold the PAC meeting until 35 days after the PAC meeting and PAC fee were accepted and processed by the Town in the first instance (i.e., July 18, 2023), and then a total of 49 days after the PAC meeting and PAC fee were accepted in the second instance (i.e., August 1, 2023).

70The Tribunal is aware that the PAC meeting was cancelled by the Town on July 31, 2023, and that the PAC fee was ultimately reimbursed by the Town on August 24, 2023. The Tribunal is also aware that the Town’s position is that Town staff erred in accepting the PAC fee. This position is reflected in Paragraph 37 of Mr. Scopacasa’s Affidavit, in which he states the following:

During Mr. Perkunder’s visit at Ajax Town Hall, payment for the Applicant’s pre-consultation meeting was processed through inadvertence and subsequently reimbursed to the Applicant. The payment was returned because the Applicant requested a pre-consultation meeting prior to the OPA and ZBA being in effect, which is contrary to the Town’s Pre-Consultation By-law.

71At Paragraph 44 of Mr. Scopacasa’s Affidavit, he states:

Accordingly, the Town rejected the Applicant’s pre-consultation request, as requested made [sic] by Mr. Cohen on June 12, 2023 on the basis of pre-maturity as the revised OPA, ZBA and DPS applications (which were submitted to the Town on May 19, 2023) had not yet been approved and were therefore not in effect, keeping in line with the Town’s Site [sic] Pre-Consultation By-law.

72The Tribunal does not accept that the PAC fee was reimbursed – nor that the PAC meeting request was rejected – for the reasons set out in Mr. Scopacasa’s Affidavit. Mr. Perkunder’s visit to Town Hall and the processing of the PAC fee occurred on June 13, 2023, following which:

• Mr. Scopacasa confirmed that the PAC request was being processed by staff (June 20);

• Town staff provided Shoal with a link to schedule the PAC meeting (June 21);

• Shoal scheduled a PAC meeting using the Town’s link (June 23);

• Mr. Scopacasa advised Shoal that the Town would not accept the Site Plan Applications, but would continue to address Shoal’s request for pre-consultation (June 30); and

• Town staff requested that the PAC meeting be rescheduled to August 1, 2023 (July 6).

73None of the correspondence pertaining to the events listed above suggests that the PAC request was rejected or that the PAC fee would be reimbursed. It was only on July 31, 2023, 48 days after the PAC fee was accepted, that Mr. Scopacasa notified Shoal that the PAC meeting scheduled to occur the following day, on August 1, 2023, would be cancelled due to the related Court proceedings and that the PAC fee would be reimbursed (Exhibit “Ac” to the Affidavit of Mr. Guetter). The evidence before the Tribunal shows that the cancellation and reimbursement resulted solely from the Court proceedings initiated by Shoal and for no other reason.

74The Tribunal finds that the substantial delays imposed by the Town in scheduling the PAC meeting are not supported by the Act and do not justify the Town’s refusal to accept the Site Plan Applications. As noted at Paragraph [61] of this Decision, the Tribunal is satisfied that the requirement for consultation set out in s. 41(3.1) of the Act has been met. The Tribunal therefore deems June 30, 2023 as the date upon which Shoal submitted complete Site Plan Applications for the purposes of s. 41 of the Act.

ORDER

75THE TRIBUNAL ORDERS that as of June 30, 2023, Shoal Bayly Ontario Inc. provided the Town of Ajax with the required plans, drawings, information, materials, and application fees in support of the applications for site plan approval for Blocks 64, 65, and 66 on the Draft Plan of Subdivision for the lands known municipally as 727 Shaol Point Road in the Town of Ajax.

76THE TRIBUNAL ORDERS that, in accordance with the above Order, the Town of Ajax shall accept the applications for site plan approval submitted by Shoal Bayly Ontario Inc. on June 30, 2023, and that the applications are deemed to be complete as of June 30, 2023.

“S. Dixon”

S. DIXON

MEMBER

“S. Gopikrishna”

S. GOPIKRISHNA

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.