Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 29, 2025

CASE NO(S).: OLT-24-001093

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Theia Partners Inc.

Request for: Request for Directions

Heard: March 10, 2025, In writing

APPEARANCES:

Parties Counsel

Theia Partners (“Theia”) M. Polowin, J. Polowin, C. McConkey

City of Ottawa (“City”) T. Marc

Jane Burnell and David Fraser (“Prospective Appellants”) R. Aburto, A. Mihailescu

DECISION DELIVERED BY WILLIAM R. MIDDLETON AND FINAL ORDER OF THE TRIBUNAL

Link to Final Order

PART ONE: INTRODUCTION

1This decision arises from a joint motion for directions (“Motion”) filed by the City and Theia (“Moving Parties”).

2The Motion is for an order of the Tribunal dismissing the Prospective Appellants’ appeals for lack of standing based upon the provisions of the Cutting Red Tape to Build More Homes Act, 2024, S.O 2024, c. 16 (“Bill 185”).

3Theia intends to redevelop the lands municipally known as 30 Cleary Avenue in the City (the “Property”) by constructing six-storey and 16-storey residential buildings on an underutilized portion of the Property which is currently used as surface parking (the “Proposed Redevelopment”).

4The Proposed Redevelopment will be facilitated under Official Plan Amendment 32, being City By-law No. 2024-380 (“OPA 32”), and zoning by-law amendment 2024-381 (“ZBLA”). Both OPA 32 and the ZBLA were approved by City Council on September 4, 2024. Subsequently, the Prospective Appellants filed appeals of those approvals.

5The materials before the Tribunal were:

(a) Joint Motion Record of Theia and the City, comprising 612 pages;

(b) Prospective Appellants’ Responding Motion Record, comprising 76 pages; and

(c) Joint Reply Motion Record, comprising 11 pages.

ISSUES / ANALYSIS

6Theia notes that the purpose of the ZBLA is to replace the existing split-zoning of the Property with a single cohesive urban exception. The proposed zoning will add mid-rise and high-rise apartment dwellings as permitted uses on the site, add rooftop amenity space as a permitted projection above the height limit, and will increase the maximum permitted building heights for the proposed six-storey and 16-storey residential buildings. As the amendment is site-specific, the ZBLA only applies to the Property.

7The Property is located within the City’s Inner Urban Transect in Schedule B2 of the City of Ottawa’s Official Plan (the “OP”) and subject to the Evolving Neighbourhood Overlay. The Property is also designated as Institutional Mixed-Use lands within the Sherbourne and New Orchard Secondary Plan (the “Secondary Plan”). The Secondary Plan applies to certain lands to the north and south of Richmond Road between the Kichi Zibi Mikan Parkway (formerly the Sir John A. McDonald Parkway) and Redwood Avenue intersections.

8Theia contends that the Property is the only parcel designated by the Secondary Plan as Institutional Mixed-Use lands. The policies under the Institutional Mixed-Use designation are crafted to specifically apply to the Property – they are not policies intended to apply generally to a broad category of lands. Further, “Institutional Mixed-Use” is not a term that is used or defined anywhere else in the OP. As such, the Property is the only land within the OP designated as Institutional Mixed-Use land, making the Institutional Mixed-Use designation a site-specific land use designation.

9The purpose of OPA 32 is to amend Institutional Mixed-Use policy 17(a), in order to simplify the transition-zone set-back requirements from the abutting low-rise residential zone for mid and high-rise buildings.

10Theia points out that the Prospective Appellants are the registered owners of the lands municipally known as 41 Aylen Avenue in the City of Ottawa (“41 Aylen”). 41 Aylen is located within an enclave of residential lots which sits directly to the north of the lands subject to the Secondary Plan. Aylen Avenue – and of course 41 Aylen – is not within the Secondary Plan area and is therefore not subject to the Secondary Plan, and neither OPA 32 nor the ZBLA apply to the Prospective Appellants’ lands.

11In opposition to the Motion, the Prospective Appellants argue that (below emphasis added):

…The City through OPA 32 and the ZBLA are purporting to advance planning instruments on a site-specific basis, which are amendments that are not site specific, but rather include comprehensive amendments to the Official Plan of the City of Ottawa

… This has been done in an effort to quash appeal rights, extending beyond what the legislature has intended through Bill 185, Cutting Red Tape to Build More Homes Act, 2024…

It is trite law that the City cannot do indirectly what it cannot do directly. Yet, the City and the Developer are construing the legislation in a manner which diminishes legitimate rights of impacted property owners. The Tribunal should not allow this to occur…

… [because the Appellants’] Appeals…were commenced based on the Appellants’ status as registered owners of land to which OPA 32 applies, and the interconnected nature of the associated ZBLA.

12The Prospective Appellants further argue that the only authority for a dismissal of an appeal without a hearing is under the sections of the Planning Act, R.S.O. 1990, c. P.13 (the “Act”) listed in the Notice of Motion is pursuant to subsections 34(25) and 17(45). Those provisions are similar in content:

Dismissal without hearing

34(25) Despite the Statutory Powers Procedure Act and subsection (24), the

Tribunal may, on its own initiative or on the motion of any party, dismiss all or

part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that,

i. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

ii. the appeal is not made in good faith or is frivolous or vexatious,

iii. the appeal is made only for the purpose of delay, or

iv. the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.

13The Prospective Appellants then proceeded to make reference to the caselaw pertaining to the above-described provisions in paragraph [12].

14Interestingly, this Tribunal considered the same line of argument being pursued here by the Prospective Appellants in a 2024 Decision in: Domtech v Quinte West (City) 2024 OLT-23-001173 (“Domtech”). In Domtech, the Tribunal had asked the Parties there to consider whether it was bound to apply those dismissal provisions in a case where the issue is whether an appellant is precluded from pursuing an appeal by the terms of Bill 185. However, in that case both parties for the most part agreed that the Tribunal was not so bound. The Tribunal agreed in Domtech and has the same view here.

15The two provisions of the Act which apply to these appeals are subsections 17(24) and 34(19). The relevant provisions are (below emphasis added):

[s. 17]

Right to appeal

(24) If the plan is exempt from approval, any of the following may, not later than 20 days after the day that the giving of notice under subsection (23) is completed, appeal all or part of the decision of council to adopt all or part of the plan to the Tribunal by filing a notice of appeal with the clerk of the municipality:

1. A specified person who, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council.

1.1 A public body that, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council.

1.2 The registered owner of any land to which the plan would apply, if, before the plan was adopted, the owner made oral submissions at a public meeting or written submissions to the council.

2. The Minister.

3. The appropriate approval authority.

4. In the case of a request to amend the plan, the person or public body that made the request.

[s. 34]

Appeal to Tribunal

(19) Not later than 20 days after the day that the giving of notice as required by subsection (18) is completed, any of the following may appeal to the Tribunal by filing with the clerk of the municipality a notice of appeal setting out the objection to the by-law and the reasons in support of the objection, accompanied by the fee charged by the Tribunal:

1. The applicant.

2. A specified person who, before the by-law was passed, made oral submissions at a public meeting or written submissions to the council.

2.1 A public body that, before the by-law was passed, made oral submissions at a public meeting or written submissions to the council.

2.2 The registered owner of any land to which the by-law would apply, if, before the by-law was passed, the owner made oral submissions at a public meeting or written submissions to the council.

3. The Minister.

16Bill 185 explicitly provides that entities meeting the definition of ‘specified persons’ may bring the appeal that has been commenced by the Prospective Appellants: As amended by Bill 185, subsection 1(1) of the Act defines ‘specified person’ as follows:

“specified person” means,

(a) a corporation operating an electric utility in the local municipality or planning area to which the relevant planning matter would apply,

(b) Ontario Power Generation Inc.,

(c) Hydro One Inc.,

(d) a company operating a natural gas utility in the local municipality or planning area to which the relevant planning matter would apply,

(e) a company operating an oil or natural gas pipeline in the local municipality or planning area to which the relevant planning matter would apply,

(f) a person required to prepare a risk and safety management plan in respect of an operation under Ontario Regulation 211/01 (Propane Storage and Handling) made under the Technical Standards and Safety Act, 2000, if any part of the distance established as the hazard distance applicable to the operation and referenced in the risk and safety management plan is within the area to which the relevant planning matter would apply,

(g) a company operating a railway line any part of which is located within 300 metres of any part of the area to which the relevant planning matter would apply,

(h) a company operating as a telecommunication infrastructure provider in the area to which the relevant planning matter would apply; (“personne précisée”)

(i) NAV Canada,

(j) the owner or operator of an airport as defined in subsection 3 (1) of the Aeronautics Act (Canada) if a zoning regulation under section 5.4 of that Act has been made with respect to lands adjacent to or in the vicinity of the airport and if any part of those lands is within the area to which the relevant planning matter would apply,

(k) a licensee or permittee in respect of a site, as those terms are defined in subsection 1 (1) of the Aggregate Resources Act, if any part of the site is within 300 metres of any part of the area to which the relevant planning matter would apply,

(l) the holder of an environmental compliance approval to engage in an activity mentioned in subsection 9 (1) of the Environmental Protection Act if any of the lands on which the activity is undertaken are within an area of employment and are within 300 metres of any part of the area to which the relevant planning matter would apply, but only if the holder of the approval intends to appeal the relevant decision or conditions, as the case may be, on the basis of inconsistency with land use compatibility policies in any policy statements issued under section 3 of this Act,

(m) a person who has registered an activity on the Environmental Activity and Sector Registry that would, but for being prescribed for the purposes of subsection 20.21 (1) of the Environmental Protection Act, require an environmental compliance approval in accordance with subsection 9 (1) of that Act if any of the lands on which the activity is undertaken are within an area of employment and are within 300 metres of any part of the area to which the relevant planning matter would apply, but only if the person intends to appeal the relevant decision or conditions, as the case may be, on the basis of inconsistency with land use compatibility policies in any policy statements issued under section 3 of this Act, or

(n) the owner of any land described in clause (k), (l) or (m);

17However, in this proceeding the Prospective Appellants have not filed any evidence to support a position that they meet the definition of ‘specified person’ and have not argued that they do. In any event, based on the materials filed for this Motion the Tribunal finds that they do not.

18Thus, in the Tribunal’s opinion the only remaining questions are whether the Prospective Appellants are “…the registered owner of any land to which…” OP 32 would apply, or “…the registered owner of any land to which…” the ZBLA would apply. The arguments made by the Prospective Appellants related to the provisions described above in paragraph [12] - which are essentially replicated in the Ontario Land Tribunal Act, 2021, S.O. 2021, C. 4, Sched 6 (“OLTA”) (in certain parts of section 19) and in the OLT Rules of Practice and Procedure (“Rules”) (Rule 15.4) (collectively, the “Hearing Dismissal Requirements”) – and the jurisprudence related to them are inapplicable in the circumstances of this proceeding. In the Tribunal’s view, the changes brought about under Bill 185 are a clear indication that the Legislature has intended to restrict what are commonly termed ‘third party appeal rights’ and there is no indication in those amendments that the Legislature nonetheless still intended them to be subject to the Hearing Dismissal Requirements.

19The Tribunal pursuant to its authority under Rule 15.1 must, as a matter of administrative screening, determine whether an appeal has been commenced in accordance with any statutory requirements. Authority to determine all matters concerning its jurisdiction and any questions of law is also captured in OLTA subsections 8(1), 8(2) and 9(1). Moreover, subsection 19(1) (e) of OLTA empowers the Tribunal to dismiss a proceeding “in any circumstance provided for under any other Act” – which in this case, would be pursuant to the amendments to the Planning Act promulgated by Bill 185. Rule 5.6 also requires the Tribunal to “determine the applicable legislative requirements necessary for a person to qualify as an appellant and decide if the matter in dispute is a proper appeal”.

20As an alternative argument, the Prospective Appellants have maintained that their appeal is proper because they have raised allegations generally applicable to whether Official Plan amendments or zoning by-law amendments ought to be granted:

The test for an official plan amendment is it must (1) have regard to matters of

provincial interest, (2) be consistent with the Provincial Planning Statement, 2024, (3) conform with the Official Plan, and (4) be in the public interest… The test for a zoning by-law amendment is that the amendment must (1) be consistent with provincial policy, (2) conform with the Official Plan, (3) and represent good planning…

Where there is an official plan amendment occurring concurrently with a zoning by-law amendment, the Tribunal has expressed the test as follows:

…With respect to the specific legislative tests to be met, the Tribunal must be satisfied that the foregoing are consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe Area (“Growth Plan”). Additionally, the proposed modification to the OPA must conform with the policy regime of the applicable official plan, which in this instance is the City OP and the proposed amendment to the ZBA

must conform with the City OP, as modified

21While the principles contained in paragraph [20] may be generally accurate, in the Tribunal’s view, the fact that a notice of appeal might raise them fails to address the fundamental issue on this Motion as stated above in paragraph [18] and does not establish that the Prospective Appellants have standing to pursue their appeals. Further affidavit evidence on these general planning principles as filed on this Motion is also of no assistance on that question and therefore the Tribunal finds it unnecessary to comment on that evidence.

22Finally, as a further alternative argument, the Prospective Appellants have contended that they are “…the registered owner(s) of any land to which…” OPA 32 would apply, or “…the registered owner(s) of any land to which…” the ZBLA would apply. In the Tribunal’s opinion, as already noted, this is the sole remaining issue to be determined since it is clear that the Prospective Appellants are not ‘specified persons’ within the meaning of subsection 1(1) of the Act.

23The Prospective Appellants argue that OPA 32 is not site specific, as claimed by Theia and the City, and that the ZBLA also has broader application to the Prospective Appellants’ lands (below emphasis added):

OPA 32, by its very nature, is an amendment to a planning instrument that has wider reach than just the property at 30 Cleary Avenue. It amends definitions that apply to the entire Secondary Plan area, and facilitates changes to setbacks that extend beyond the Secondary Plan area (into the Appellants’ property in fact)

Significantly, OPA 32 includes a transition policy, which refers to setbacks in relation to the Appellants’ property, resulting in a direct impact on these lands in addition to those at 30 Cleary Avenue. Furthermore, the “Institutional Mixed-Use Area” designation created by OPA 32 is a general land use designation which can also be applied to other sites in the future…

Furthermore, the ZBLA is within the Tribunal’s jurisdiction given the interwoven nature between the ZBLA and OPA 32. The ZBLA was passed based on the adoption of OPA 32. There is a public interest element in hearing the ZBLA appeal…

The setback requirement is linked to the use, not to the location of a property or adjacent properties, in the Secondary Plan… Significantly, the setbacks required under OPA 32, and the associated ZBLA, are informed by adjacent properties, irrespective of whether they are located in the Secondary Plan area…

The Appellants’ property contains a low-rise built form and the rear property line abuts 30 Cleary Avenue. As such, the Appellants are registered owners of land to which the OPA applies, through the impact of land uses in the Secondary Plan

24Theia and the City reject the arguments reproduced above in paragraph [23]. They point out that a careful reading of the Prospective Appellants’ submissions reveals that they do not dispute that the ZBLA does not apply to their lands. Theia and the City argue that instead, the Respondents have tried to read into the plain language of the statute a new test or standard (whether a zoning by-law is “interwoven” with another planning instrument). The Tribunal agrees that since the Respondents are not owners of land to which the ZBLA applies, they have no appeal rights with respect to the ZBLA, regardless of whether the ZBLA is related to OPA 32. This is clear under the language in subsection 34(19) as described above in paragraph [15].

25Theia and the City also maintain that the Prospective Appellants own lands adjacent to the lands to which OPA 32 applies, not lands to which OPA 32 applies and that it is undisputed that OPA 32 will not modify the policies applicable to the Prospective Appellants’ lands. The Moving Parties also point out that the Prospective Appellants essentially admit this at paragraphs 69 and 70 of their Responding Motion Record as follows:

69. Significantly, section 17(a) of the Secondary Plan provides transition policies that directly impact the Appellants’ property, stating:

Portions of the lot adjacent and closest to a residential zone must include a minimum setback of 10.5 metres for a mid-rise building and 14 metres for a high-rise building, as measured from a residential lot line with low-rise form…

70. The setback requirement is linked to the use, not to the location of a property or adjacent properties, in the Secondary Plan.

26The Moving Parties argue that the emphasized language reproduced in paragraph [25] from the Prospective Appellants’ written submissions demonstrates that the Prospective Appellants’ appeal is based on the grounds that their property is located in the residential zone “adjacent to” 30 Cleary and as such, it is not land to which OPA 32 applies. They further argue that the use of the term “impacts” in paragraph 69 as opposed to “affect” or “apply to” reveals that the policies in question do not directly apply to the Prospective Appellants’ property. The Tribunal agrees with the Moving Parties on both of these points.

27The Moving Parties further contend that OPA 32 is a site-specific amendment and not a comprehensive amendment and that the Prospective Appellants have intentionally attempted to blur the line between a Secondary Plan and the Parent Official Plan by suggesting that all amendments to any Secondary Plan that are not explicitly site-specific constitute amendments to the broader Official Plan. Theia and the City point out that this line of reasoning would allow any landowner in the City the right to appeal any amendment to any Secondary Plan. The Tribunal agrees that this cannot be a proper interpretation of the plain meaning of subsection 17(24) of the Act.

28Finally, the Moving Parties maintain that the Prospective Appellants’ argument that “… the “Institutional Mixed-Use Area” designation created by OPA 32 is a general land use designation which can also be applied to other sites in the future” amounts to another de facto admission that it does not currently apply to the Prospective Appellants’ lands or indeed any lands other than Theia’s Property. Again, the Tribunal agrees that a mere apprehension of future expansion of the designation which cannot create an entitlement to appeal in the face of the language in subsection 34(19) of the Act. Moreover, if there was such an expansion of the Institutional Mixed-Use Area it would require a further Secondary Plan amendment, which in turn would entitle owners of all properties to which the expansion applied the right to appeal.

CONCLUSIONS

29Bill 185 modified the Act by amending the appeal rights under subsections 17(24) and 34(19) of the Act. The Act now requires that the person filing an appeal must be one of:

(a) The Applicant or the person that requested the amendment;

(b) A ‘specified person’, as defined under subsection 1(1) of the Act (see above in paragraph [16]) who, before the plan was adopted or the by-law was passed, made oral submissions at a public meeting or written submissions to the council;

(c) A public body, as defined under subsection 1(1) of the Act that, before the plan was adopted or the by-law was passed, made oral submissions at a public meeting or written submissions to the council; or

(d) The registered owner of any land to which the plan or by-law would apply, if, before the plan or by-law was adopted or passed, the owner made oral submissions at a public meeting or written submissions to the council or the Minister.

30The rights of the Prospective Appellants here to maintain their appeals are governed by the provisions of subsection 19(1)(e) of the OLTA and Rules 5.6 and 15.1 of the OLT Rules as it is always the responsibility of the Tribunal to determine whether an appeal has been commenced in accordance with any statutory requirements.

31Clearly, Bill 185 was an effort by the Legislature to restrict appeal rights in proceedings under the Act. This was recognized by this Tribunal in the OLT Decision in Domtech and, in the Tribunal’s opinion, flows from a common sense reading of the amendments to the Act as is described in paragraphs [15] and [16] above. In the Tribunal’s view, an appellant must squarely fall within the ambit of those provisions. In this proceeding, it is the Tribunal’s view that the Prospective Appellants do not, despite the creative and clever arguments made by their counsel.

32In the Tribunal’s opinion, the overall intent of the changes introduced by Bill 185 was to restrict, not expand, appellate rights. Ascribing any motives to ‘quash appeal rights’ by the City underlying its approval in 2024 of new planning instruments is irrelevant: Bill 185 was enacted by the Ontario Government.

ORDER

33THE TRIBUNAL ORDERS THAT:

(a) The amendments to subsections 17(24) and 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended made under the Cutting Red Tape to Build More Homes Act, 2024, S.O 2024, c. 16, preclude the appeals filed by Jane Burnell and David Fraser with respect to by-law No. 2024-380 and zoning by-law amendment No. 2024-381, approved by the City of Ottawa; and

(b) There shall be no order as to the costs incurred by the Parties on this motion brought by the City of Ottawa and Theia Partners.

“William R. Middleton”

WILLIAM R. MIDDLETON

VICE-CHAIR

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.