Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 08, 2025 CASE NO(S).: OLT-24-001182, OLT-25-000011

PROCEEDING COMMENCED UNDER subsection 22(6.2) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Request by: 2436091 Ontario Ltd. Request for: Motion for directions to determine the completeness of an application Property Address: 4497A and 4497B O'Keefe Court Municipality: Ottawa OLT Case No.: OLT-24-001182 OLT Lead Case No.: OLT-24-001182 OLT Case Name: 2436091 Ontario Ltd. v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 22(6.2) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant: Caivan (Stittsville South) Inc. and Caivan (Stittsville West) Ltd. Subject: Motion for directions to determine the completeness of an application Reference Number: D01-01-24-0017 Property Address: 5971 Flewellyn Road, 1770 Shea Road and 1820 Shea Road Municipality/UT: Ottawa/Ottawa OLT Case Number: OLT-25-000011 OLT Lead Case Number: OLT-25-000011 OLT Case Name: Caivan (Stittsville South) Inc. and Caivan (Stittsville West) Ltd. v. Ottawa (City)

Heard: April 03, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative
2436091 Ontario Ltd.	Mark Flowers, Alexia Ivo (Student-at-law)
Caivan (Stittsville South) Inc. and Caivan (Stittsville West) Ltd.	Mark Flowers, Alexia Ivo (Student-at-law)
City of Ottawa	Tim Marc

DECISION DELIVERED BY MEMBER N. EISAZADEH AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision arises from two Motions, brought by different Applicants in separate proceedings but heard concurrently, which both seek a determination of ‘completeness’ of their distinct applications filed with the City of Ottawa (“City”), for individual Official Plan Amendments (“OPA”) seeking to expand the urban boundary in each case to include their respectively owned lands within the City.

2In the matter bearing Case File No. 24-001182, the Moving Party is 2436091 Ontario Ltd. (“Mattamy” and the “Mattamy Motion”), who seeks a determination that its subject application be deemed complete as of November 29, 2024.

3In the matter bearing Case File No. 25-000011, the Moving Parties are Caivan (Stittsville South) Inc. and Caivan (Stittsville West) Ltd. (collectively “Caivan”, and the “Caivan Motion”), who seek a determination that their subject application be deemed complete as of October 8, 2024.

4Both Mattamy and Caivan are represented by Mark Flowers. In each of the proceedings the City is represented by Tim Marc.

5For the reasons that follow, the Tribunal determines that the Motions are allowed, and the request for relief sought by Mattamy and Caivan, respectively, is granted.

UNDISPUTED BACKGROUND

The Mattamy Lands, Background, and Application History

6Mattamy is the owner of the lands municipally know as 4497A and 4497B O’Keefe Court (“Mattamy Lands”).

7First approved by the City in 2007, by way of an OPA, Zoning By-Law Amendment (“ZBA”) and Draft Plan of Subdivision (“DPS”), the Mattamy Lands remain currently approved for estate lot residential development on partial services.

8From 2007 to the present, various revisions to the original development proposal were made and approved, along with requests to extend the approval time periods. The last approved iteration of the proposal consists of 129 estate lots, the protection of provincially significant wetlands, and 16 additional residential lots with revised street patterns where a previously envisioned golf course with clubhouse was intended (the “Mattamy Development”).

9Phase 1 of the Mattamy Development has been registered for a portion of the lands east of a hydro corridor along Cedarview Road, and a total of 57 lots have been created and serviced.

10In 2017, a request for further revisions to the Mattamy Development was submitted to the City seeking to add a new road connection through adjacent lands, which would provide a secondary road connection and servicing corridor, the creation of conservation blocks to protect surface water features, and a revised lot pattern. This revised application remains pending.

11On October 21, 2024, Mattamy submitted the OPA application, which is the subject of this Motion (the “Mattamy Application”), seeking to include the Mattamy Lands within the City’s urban area in order to permit development on full municipal services, with a total of approximately 1,492 dwelling units including detached homes, townhouses, and apartment dwellings (the “2024 Proposed Mattamy Development”).

12The Mattamy Application included the following information and materials that were submitted to the City on October 21, 2024:

a) Urban and Village Boundary Expansion Official Plan Amendment Application Form, dated October 21, 2024; b) Planning Rationale – Official Plan Amendment, prepared by Fotenn, dated October 18, 2024; c) Urban Design Brief, prepared by Mattamy, Urbantypology and Fotenn, dated October 18, 2024; d) Community Masterplan Concept, prepared by Mattamy and Urbantypology, dated August 17, 2023; e) Cedarview Village Visioning Package, prepared by Mattamy, dated November 2023; f) Barrhaven Vision Destination Transit Planning, prepared by Urbantypology and CGH Transportation, dated September 2020; g) Economic and Financial Justification Study, prepared by urbanMetrics, dated October 18, 2024; h) Preliminary Servicing Analysis Memorandum, prepared by DSEL, dated February 23, 2024; i) Assessment of Adequacy of Public Services Report, prepared by DSEL, dated October 2024; j) Environmental Impact Study, prepared by Kilgour & Associates Ltd., dated October 18, 2024; k) Memorandum re: Environmental Constraints for Mattamy’s Cedarview Property, prepared by Kilgour & Associates Ltd., dated May 15, 2024; l) Phase I Environmental Site Assessment, prepared by Paterson Group, dated August 19, 2024; m) Phase II Environmental Site Assessment, prepared by Paterson Group, dated September 18, 2024; n) Geotechnical Investigation, prepared by Paterson Group, dated June 3, 2024; o) Traffic Noise Feasibility Assessment, prepared by Gradient Wind, dated August 20, 2024; p) Topographic Sketch, prepared by J.D. Barnes Limited, dated January 23, 2024; q) Transportation Impact Assessment, prepared by CGH Transportation, dated September 2024; and r) Synchro Data, prepared by CGH Transportation, dated May 30, 2024.

13In addition to these materials, on November 15, 2024, Mattamy submitted an Infrastructure Capacity Assessment application form along with the proposed Community Masterplan Concept and an Off-Site Servicing Project Identification application form.

14Payment of the following fees was also made, under protest (other than for the on-site signage), for which a separate five-day Hearing before this Tribunal is currently scheduled to proceed on June 2, 2025 (bearing Case File No. 24-001160):

I. October 30, 2024: $1,400,000 for the application $906 for initial on-site signage II. November 26, 2024: $250,000 for Infrastructure Capacity Assessment III. November 29, 2024: $150,000 for Off-Site Servicing Project Identification

15By way of letter dated November 28, 2024, the City deemed the Mattamy Application “incomplete”, citing the following alleged deficiencies as further information or materials required (“Mattamy Notice of Deficiencies”):

1. Completion of Step 1 and Step 2 for The Infrastructure Capacity Assessment, through work completed by the City’s Asset Management Group and,
2. Submission of Land Needs Assessment.
3. Submission of Settlement Area Parcel Analysis

The Caivan Lands, Background, and Application History

16Caivan is the owner of the lands municipally known as 5971 Flewellyn Road, 1770 Shea Road and 1820 Shea Road, in the community of Sittsville, which are located at the northwest corner of the intersection of Flewellyn Road and Shea Road (“the Caivan Lands”).

17The Caivan Lands are designated “Rural Countryside” in the City’s Official Plan (“OP”). North and West of the Caivan Lands are the lands municipally known as 6070 Fernbank Road, 5993 and 6115 Flewellyn Road (the “Caivan-Adjacent Lands”).

18In 2018, a former owner of the Caivan Lands removed vegetation on the property, which led to the City laying charges against the owner for an alleged violation of the City’s site alteration by-law. A resulting “active court case” related to the alleged site alteration by-law violation is the cited reason that the Caivan Lands were ultimately excluded from a subsequent City initiated residential and industrial urban expansion implemented by way of the City’s new OP adopted on November 24, 2021.

19Prior to the adoption of the new OP, the City’s Director of Economic Development and Long Range Planning issued a report entitled “New Official Plan: Growth Management Report II – Lands Proposed for Residential and Industrial Urban Expansion” (the “GMR”), which was considered by, inter alia, City Council at its meeting on February 10, 2021. Within the GMR, candidate lands for urban area expansion were evaluated against certain criteria and categorized. Category 1 identified as:

Lands that have a strong adherence to the [Growth Management Strategy (“GMS”)] criteria and Five Big Moves. They are composed of pass 1 lands that fulfill all criteria and minimum scoring under the GMS. Category 1 lands also include 2nd pass lands which complete clusters based on servicing and/or transit viability of pass 1 lands.

Category 2 represented:

Lands that fulfil exclusion factors (such as not being agricultural resource areas and buffered from mineral aggregate resource areas) but may not fulfil minimum inclusion factors such as distance from rapid transit. Due to their proximity to the current urban boundary and Category 1 lands, Category 2 lands may be considered in part or collectively for inclusion in the urban boundary if there is a shortfall of lands in Category 1.

20The GMR recommended approval of Category 1 lands, identified in its Appendix A and described in its Document 2 representing “land clusters of 1,011 hectares that best meet the evaluation criteria and the Five Big Moves”, as candidate areas to be added to the urban boundary in the new OP.

21Document 2 of the GMR included scoring and other characteristics of the Category 1 and 2 lands. It identified the Caivan-Adjacent Lands as the “S10/S11” cluster for South Sittsville, which abuts previous expansion lands north of Flewellyn Road and east of Shea Road. It further describes the following:

A hydro corridor traverses the cluster and a stormwater management pond can also be found within the cluster. The existing and planned roads, as well as the hydro corridor, would allow to [sic] the cluster to connect and integrate with the existing urban area, accommodating both road and active transportation connections. (planned road connections in development to the north).

22Significantly, the Caivan Lands are identified in the GMR as “S-11” with Parcel ID “977”, comprising approximately 14 hectares of the total 14.82 hectares being the gross area of the parcel south of Stittsville. Also significant is that the Caivan Lands score as reflected in Document 2 of the GMR (score of 41) was equivalent, in terms of Category ranking, to the Caivan-Adjacent Lands (score of between 41-43).

23When Council adopted the New OP, and pursuant to the GMR recommendations, the Caivan-Adjacent Lands were added to the urban area as ‘future neighbourhood overlay’, while the Caivan Lands were not for the reasons mentioned in paragraph [18] above.

24On August 14, 2024, Caivan submitted an OPA application in respect of both the Caivan Lands (seeking to include the Caivan Lands within the City’s urban area – the “Caivan Application”) and the Caivan-Adjacent Lands (in respect of removing the ‘future neighbourhood overlay’ designation), together with a ZBA and DPS in respect of the Caivan-Adjacent Lands.

25This initial application included the following information and materials that were submitted to the City on the same day:

a) Cover Letter from Caivan, dated August 14, 2024; b) Official Plan Amendment Application Form, executed on August 8, 2024; c) Planning Report, prepared by Goldberg Group, dated August 2024; d) Draft Plan of Subdivision, prepared by JD Barnes, dated June 10, 2024; e) Plan of Survey, prepared by JD Barnes, dated August 31, 2022; f) Scoped Master Servicing Study, prepared by DSEL, dated August 2024; g) Functional Servicing Report, prepared by DSEL, dated August 2024; h) Environmental Impact Study and Tree Conservation Report, prepared by Kilgour & Associates Ltd., dated August 13, 2024; i) Hydrogeological Existing Conditions Report, prepared by Paterson Group, dated August 7, 2024; j) Hydrogeological Study and Water Budget Assessment, prepared by Paterson Group, dated August 7, 2024; k) Geotechnical Investigation, prepared by Paterson Group, dated August 7, 2024; l) Phase I Environmental Site Assessment, prepared by Paterson Group, dated July 11, 2024; m) Stage 1 and 2 Archaeological Reports and Associated Registration, prepared by Matrix Heritage, dated December 2021 and August 2022, respectively; n) Urban Design Brief, prepared by NAK Landscape Architect, dated August 2024; o) Preliminary Parking Plan, prepared by NAK Landscape Architect, dated August 1, 2024; p) Preliminary Streetscape Plan, prepared by NAK Landscape Architect dated August 9, 2024; q) Traffic Impact Assessment, prepared by CGH Transportation, dated July 2024; and r) Noise Report, prepared by Gradient Wind, dated August 1, 2024.

26On August 13, 2024, Caivan submitted payment to the City in the amount of $33,205.40 for the Caivan Application fee.

27An original notice of incomplete application was issued by the City dated September 11, 2024, which prompted a resubmission by Caivan of its application scoped to the OPA respecting the Caivan Lands only. The resubmission was made on October 8, 2024, and included the following information and materials:

a) Cover Letter from Caivan, dated October 8, 2024; b) Planning Report, prepared by Goldberg Group, dated August 2024; c) Public Consultation Strategy, prepared by Goldberg Group, dated October 8, 2024; d) Draft Official Plan Amendment, prepared by Goldberg Group; e) Scoped Master Servicing Study, prepared by DSEL, dated October 2024; f) Transportation Impact Assessment, prepared by CGH Transportation, dated October 2024; g) Updated Environmental Study, prepared by Kilgour & Associates Ltd., dated October 8, 2024; h) Phase I Environmental Site Assessment Update, prepared by Paterson Group, dated October 4, 2024; and i) A response matrix, in response to the relevant alleged deficiencies identified in the Original Notice of Incomplete Application.

28By way of letter dated November 7, 2024, the City deemed the Caivan Motion incomplete citing the following alleged deficiencies as further information or materials required (“Caivan Notice of Deficiencies”):

1. Council approved a New Urban and Village Boundary Expansion Official Plan Application Process on October 16, 2024. As part of the report, a new process and fee was established to facilitate the review of individual privately initiated urban boundary expansion request based on the recent update to the Provincial Planning Statement 2024. The above application was not deemed complete prior to Council adoption of the report, and further, there was no transition clause approved as part of the process. As such, the submission is reviewed against the new process as approved through Council.
2. Initiate Step 1 of the process, Urban and Village Expansion: Capacity Assessment. Payment of the application fee of $200,000.00.
3. Requirement for Step 2 (Off-site Servicing Project Identification) will be determined based on the outcome of Step 1.
4. Payment of outstanding application fee of $1,401,023.78 upon completion of Step 1 and Step 2 of the process. The previously paid fee will be refunded.
5. Submission of Urban and Village Area Boundary Expansion – Land Needs Assessment
6. Submission of Urban and Village Area Boundary Expansion – Infrastructure Capacity Assessment

STATUTORY, LEGISLATIVE AND POLICY FRAMEWORK

29Outlining the relevant statutory, legislative, and policy framework, including changes implemented by the Provincial Planning Statement 2024 (“2024 PPS”) that came into effect on October 20, 2024, and subsequently by-laws enacted by the City, is required to contextualize the preceding summary of the respective application histories and factual background underpinning these Motions.

The [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

30The Motions are brought under s. 22(6.2) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”). The relevant portions of the preceding provisions of s.22, along with subsection (6.2) of the Act state (emphasis added):

Prescribed information

22(4) A person or public body that requests an amendment to the official plan of a municipality or planning board shall provide the prescribed information and material to the council or planning board.

Other information

22(5) A council or a planning board may require that a person or public body that requests an amendment to its official plan provide any other information or material that the council or planning board considers it may need, but only if the official plan contains provisions relating to requirements under this subsection.

Motion re dispute

(6.2) At any time after the person or public body has begun to consult with the municipality or planning board before submitting a request under subsection (1) or (2) or after the person or public body has paid any fee required under section 69, the person or public body or the council or planning board may make a motion for directions to have the Tribunal determine,

(a) whether the information and material have in fact been provided; or

(b) whether a requirement made under subsection (5) is reasonable.

31The prescribed information and material referred to in s.22(4) of the Act is contained in s.10 of Ontario Regulation 543/06 “Official Plans and Plan Amendments” (“O.Reg 543/06”), which states:

Information and material — request for amendment to official plan

(s. 22 (4) of Act)

10. The information and material to be provided by an applicant under subsection 22 (4) of the Act are set out in Schedule 1.

32Schedule 1 of O.Reg 543/06 sets out the prescribed information and materials by way of an itemized list numbered 1 to 27. It was not disputed by the City that the prescribed information and materials have been submitted by both Mattamy and Caivan on their respective applications, and need not be repeated here.

33What is at issue is “other information or material” requested by the City, captured by subsection 22(5) of the Act, at issue in large part due to legislative and policy changes arising from the 2024 PPS in relation to new settlement areas and settlement area boundary expansions.

The Provincial Planning Statement, 2024

34On October 20, 2024, the new 2024 PPS implemented changes in respect of, inter alia, the provisions in the former Provincial Policy Statement, 2020 (“2020 PPS”) under section 1.1.3, dealing with the expansion of settlement areas. Under the 2020 PPS, the relevant provisions read as follows (emphasis added):

1.1.3.8 A planning authority may identify a settlement area or allow the expansion of a settlement area boundary only at the time of a comprehensive review and only where it has been demonstrated that:

a) sufficient opportunities to accommodate growth and to satisfy market demand are not available through intensification, redevelopment and designated growth areas to accommodate the projected needs over the identified planning horizon;

b) the infrastructure and public service facilities which are planned or available are suitable for the development over the long term, are financially viable over their life cycle, and protect public health and safety and the natural environment;

c) in prime agricultural areas:

1. the lands do not comprise specialty crop areas;

2. alternative locations have been evaluated, and

i. there are no reasonable alternatives which avoid prime agricultural areas; and

ii. there are no reasonable alternatives on lower priority agricultural lands in prime agricultural areas;

d) the new or expanding settlement area is in compliance with the minimum distance separation formulae; and

e) impacts from new or expanding settlement areas on agricultural operations which are adjacent or close to the settlement area are mitigated to the extent feasible.

In undertaking a comprehensive review, the level of detail of the assessment should correspond with the complexity and scale of the settlement boundary expansion or development proposal.

1.1.3.9 Notwithstanding policy 1.1.3.8, municipalities may permit adjustments of settlement area boundaries outside a comprehensive review provided:

a) there would be no net increase in land within the settlement areas;

b) the adjustment would support the municipality’s ability to meet intensification and redevelopment targets established by the municipality;

c) prime agricultural areas are addressed in accordance with 1.1.3.8 (c), (d) and (e); and

d) the settlement area to which lands would be added is appropriately serviced and there is sufficient reserve infrastructure capacity to service the lands.

35The term “comprehensive review” was defined under the 2020 PPS as follows (emphasis added):

Comprehensive review: means

a) for the purposes of policies 1.1.3.8, 1.1.3.9 and 1.3.2.4, an official plan review which is initiated by a planning authority, or an official plan amendment which is initiated or adopted by a planning authority, which:

1. is based on a review of population and employment projections and which reflect projections and allocations by upper-tier municipalities and provincial plans, where applicable; considers alternative directions for growth or development; and determines how best to accommodate the development while protecting provincial interests;

2. utilizes opportunities to accommodate projected growth or development through intensification and redevelopment; and considers physical constraints to accommodating the proposed development within existing settlement area boundaries;

3. is integrated with planning for infrastructure and public service facilities, and considers financial viability over the life cycle of these assets, which may be demonstrated through asset management planning;

4. confirms sufficient water quality, quantity and assimilative capacity of receiving water are available to accommodate the proposed development;

5. confirms that sewage and water services can be provided in accordance with policy 1.6.6; and

6. considers cross-jurisdictional issues.

b) for the purposes of policy 1.1.6, means a review undertaken by a planning authority or comparable body which:

1. addresses long-term population projections, infrastructure requirements and related matters;

2. confirms that the lands to be developed do not comprise specialty crop areas in accordance with policy 2.3.2; and

3. considers cross-jurisdictional issues.

In undertaking a comprehensive review the level of detail of the assessment should correspond with the complexity and scale of the settlement boundary or development proposal.

36Under the 2024 PPS, expansion of settlement areas is now captured under section 2.3.2, which reads as follows:

2.3.2 New Settlement Areas and Settlement Area Boundary Expansions

1. In identifying a new settlement area or allowing a settlement area boundary expansion, planning authorities shall consider the following:

a) the need to designate and plan for additional land to accommodate an appropriate range and mix of land uses;

b) if there is sufficient capacity in existing or planned infrastructure and public service facilities;

c) whether the applicable lands comprise specialty crop areas;

d) the evaluation of alternative locations which avoid prime agricultural areas and, where avoidance is not possible, consider reasonable alternatives on lower priority agricultural lands in prime agricultural areas;

e) whether the new or expanded settlement area complies with the minimum distance separation formulae;

f) whether impacts on the agricultural system are avoided, or where avoidance is not possible, minimized and mitigated to the extent feasible as determined through an agricultural impact assessment or equivalent analysis, based on provincial guidance; and

g) the new or expanded settlement area provides for the phased progression of urban development.

2. Notwithstanding policy 2.3.2.1.b), planning authorities may identify a new settlement area only where it has been demonstrated that the infrastructure and public service facilities to support development are planned or available.

37Absent from the language of the 2024 PPS, and indeed its list of definitions, is use of the term “comprehensive review”.

[Cutting Red Tape to Build More Homes Act](https://www.canlii.org/en/on/laws/astat/so-2024-c-16/latest/so-2024-c-16.html), 2024

38On June 6, 2024, certain amendments to the Act arising from the Cutting Red Tape to Build More Homes Act, 2024, S.O. 2024, c. 16 – Bill 185 (“Bill 185”) were proclaimed in force including the former s.22(7.2)(a) of the Act, which was repealed and substituted with a provision that would allow appeal rights to this Tribunal for applications to expand settlement boundaries provided the land proposed to be included in the settlement area does not fall within the Greenbelt Area. As of October 20, 2024, with the proclamation of the 2024 PPS in effect, that appeal right to this Tribunal includes appeals on private applications for settlement boundary expansion without the limitation of occurring only through a municipal comprehensive review or as set out in s.1.1.3.9 of the former 2020 PPS.

39There is no dispute that the Mattamy Lands and the Caivan Lands, respectively located in Ottawa, do not fall within the Greenbelt Area as defined by the Greenbelt Act, 2005, S.O. 2005, c. 1.

The Staff Report

40In anticipation of the changes that would be brought on by the 2024 PPS once proclaimed, the City’s Director of Planning Services issued a report entitled “New Urban and Village Boundary Expansion Official Plan Application Process”, dated October 3, 2024 (“Staff Report”).

41As cited in the Staff Report, its purpose was “to seek Council approval for a framework relating to urban and village area boundary expansions and to amend three by-laws to implement a new development application type that will now be permitted with the new [2024 PPS]…”.

42Among other recommendations (captured below under the discussion of Council’s resolution), the steps set forth in the proposed framework for urban and village boundary expansion official plan amendment applications (“UVBE-OPA”) are summarized as follows:

Step 1: Assess Existing Servicing Capacity Step 2: Identify New Servicing Capacity Step 3: OPA expansion submission including a Land Need Assessment Step 4: Assessment of Transportation, Agriculture, and Infrastructure Step 5: Council Decision

City Council Resolution and By-Laws

43At its meeting on October 16, 2024, City Council adopted a resolution to, inter alia, approve four key items.

44First was approval of the new UVBE-OPA application identified in the Staff Report. In this regard Council directed Staff to prepare the necessary amendments to the City’s OP.

45The other three items regard approved amendments to the following By-laws:

I. Amendments to the Development Application Study Policy By-law 2023-297 to list additional information and materials that could be requested for the City to assess an UVBE-OPA as detailed in a revised Document 1 initially attached to the Staff Report. II. Amendments to the Planning Fees By-law to add a new application type and fee for UVBE-OPAs, as detailed in a revised Document 2 initially attached to the Staff Report. III. Amendments to the Water By-law 2019-74 to add a new service and fee for a “Servicing Capacity Assessment Request for an Urban and Village Boundary Expansion to City of Ottawa” as detailed in a revised Document 3 initially attached to the Staff Report.

46Revised versions of Documents 1, 2, and 3 replaced the original versions included in the Staff Report in response to a committee motion that called for “streamlined versions… in order to provide clarity on the amendments”.

47At the same meeting, Council enacted/amended the following By-laws in furtherance of its approved resolutions set out at paragraphs [44] to [45] above:

I. By-law 2024-444 which amends By-law 2023-297 in respect of the additional information and materials required for specific planning applications (the “DASP By-law”). The DASP By-law introduced the new UVBE-OPA application type, and added the following three items to the list of materials that may be required to be provided by an applicant: i. Urban and Village Boundary Expansion – Land Needs Assessment ii. Urban and Village Area Boundary Expansion – Settlement Area Parcel Analysis iii. Urban and Village Area Boundary Expansion – Infrastructure Capacity Assessment

On October 20, 2024, Terms of Reference (“2024 TOR”) for the three additional items outlined in the DASP By-law were published.

II. By-law 2024-445 which amends By-law 2024-33 in respect of fees for planning applications. By-law 2024-445 now requires the following fees: III. By-law 2024-423 which amends By-law 2019-74 in respect of new servicing capacity assessment fees. By-law 2024-423 now requires:

THE ISSUES

The Mattamy Motion

48Resolution of the Mattamy Motion requires a determination of the following:

I. Was the condition precedent in s.22(5) of the Act satisfied, such that the City’s request for additional information and materials, as set out in the Mattamy Notice of Deficiencies, is founded in law? If the answer is ‘No’, the Appellant submits this is sufficient reason alone to deem the Mattamy Application complete. II. If the answer to the first issue is ‘Yes’, then we must turn to s.22(6.2) of the Act and determine whether the additional information and materials identified in the Mattamy Notice of Deficiencies have in fact been provided or are reasonable.

The Caivan Motion

49Resolution of the Caivan Motion requires a determination of similar questions as in the Mattamy Motion, pursuant to the facts of its own case. The Caivan Motion asks:

I. Was the Caivan Motion already submitted in complete form prior to the City taking steps to implement its new UVBE-OPA application type? II. If the answer to issue one is ‘No’, was the condition precedent in s.22(5) of the Act satisfied, such that the City’s request for additional information and materials, as set out in the Caivan Notice of Deficiencies, is founded in law? III. If the answer to the second issue is ‘Yes’, then we must turn to s.22(6.2) of the Act and determine whether the additional information and materials identified in the Caivan Notice of Deficiencies have in fact been provided or are reasonable.

THE MATTAMY MOTION: DISCUSSION, ANALYSIS AND FINDINGS

Issue 1: Condition Precedent Under S.22(5) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

50The additional information and materials requested by the City are captured in the Mattamy Notice of Deficiencies, as now required by the newly enacted DASP By-law. To reiterate, they are: (i) completion of ‘Steps 1 and 2 of the Infrastructure Capacity Assessment’; (ii) submissions of a ‘Lands Need Assessment’ and (iii) submission of a ‘Settlement Area Parcel Analysis’.

51Mr. Flowers on behalf of both Mattamy and Caivan submits that By-law 2023-297 as amended by the DASP By-law is not a by-law enacted or adopted under the Act, nor does it form part of the City’s OP and therefore cannot be founded in law. Rather, Mr. Flowers points out, s.3 of By-law 2023-297 states that the by-law “may be cited as the Information and Material for Planning Applications Bylaw or the Development Application Study Policy per Section 11.8(2) of the Official Plan”. S.11.8 of the City’s OP does not itself enumerate the list of additional information and materials the City now relies on.

52Mr. Flowers relies on past Tribunal case law which supports his position including, inter alia: Top of the Tree Developments Inc., Re, 2007 CarswellOnt 7921 (O.M.B.) at paras. 11-14 and 18 [“Top of the Tree”]; Minto (Mimico) Inc. v. Toronto (City), 2023 CarswellOnt 19884 (O.L.T.) at paras 35 and 56-58 [“Minto”]; Shoal Bayly Ontario Inc. v. Ajax (Town), 2024 CarswellOnt 1597 (O.L.T.) at paras 44, 51-57 [“Shoal Bayly”]; and Industrial Equities Guelph Corporation v. Guelph (City), 2024 CarswellOnt 5295 (O.L.T.) at paras 18, 50, 56-58 and 73-84 [“Industrial Equities”].

53In response, Mr. Marc submits that the DASP By-law and new framework set out therein dealing with UVBE-OPA applications is properly founded in law by way of s.11.8 of the City’s OP. He states that s.11.8 of the OP contains provisions relating to the DASP By-law and its according and subsequently published 2024 TOR, which satisfies the language and requirements set out in s.22(5) of the Act.

54Mr. Marc submits that there is nothing in the language of s.22(5) of the Act that states a Municipality’s OP must enumerate the additional information and studies that may be required as part of a complete application. Rather, Mr. Marc submits, the language simply states (emphasis added) “only if the official plan contains a provision relating to requirements under this section”. Mr. Marc states this is general and enabling language which leaves the door open for a Municipality to update its policies on the studies, information and materials required for a complete application through enactment, as it did, of the appropriate amending DASP By-law.

55In respect of the case law cited by Mr. Flowers, Mr. Marc concedes that they exist. However, he contends that they did not properly consider or account for other provisions within the Act where similar ‘general and enabling’ language as that in s.22(5) is used, whereby a Municipality has successfully been permitted to update its requirements or policies by way of implementing by-laws. Mr. Marc points specifically to:

I. S.28(7.2) regarding grants or loans permissible for community improvement plans if, inter alia, the OP “contains provisions relating to the making of such grants or loans” (emphasis added); II. s.36(2) respecting the ability to implement holding provision by-laws if the OP “contains provisions relating to the use of the holding symbol…” (emphasis added); and III. s.37(2) of the former 2019 Planning Act (since repealed and replaced with community benefits charges) but which then dealt with height and density increases permitted if the OP “contains provisions relating to the authorization…” (emphasis added).

56On this basis, Mr. Marc submits that the language of s.22(5) of the Act is not nearly as limiting as that suggested by Mr. Flowers, and that it simply authorizes Municipalities to move forward within the general and enabling language of “provisions relating to”, which permit a Municipality to decide on the appropriate means of achieving the intended goal – in this case the additional information and materials required for UVBE-OPA applications implemented by way of the DASP By-law as referenced in s.11.8 of the City’s OP – as that is how Municipalities generally organize themselves.

FINDINGS ON ISSUE 1 – THE CONDITION PRECEDENT UNDER S.22(5):

57The Tribunal does not accept the City’s position on this issue. S.22(5) of the Act allows an approval authority to require additional information and material it considers necessary for the purposes of complete application requirements, “but only if the official plan contains provisions relating to requirements under this section.”

58The relevant portions of s.11.8 of the City’s OP in this case state the following (emphasis added):

11.8(1) Prior to submitting a development proposal, a pre-application consultation meeting is recommended with City staff in order to identify the information that will be required at the time of application submission. The City has the authority to request additional information, that will be required as part of a complete application, after further review of the application proposal. [Amendment 34, By-law 2024 506, Omnibus 2 item 32, November 13, 2024]

11.8(2) Development shall comply with the complete application submission requirements of the Planning Act. The City will maintain a Development Application Study policy, which will be reviewed with applicants in the pre-consultation process. To process the application, the City may require additional information and/or reports as listed in the Policy. The additional information and/or reports will be identified in writing after a pre-application consultation or after further review of the development proposal. All required reports must be completed to the satisfaction of the City or relevant approval authority.

11.8(3) For each of the studies listed in a Development Application Study policy, the City will provide terms of reference and/or guidelines outlining study requirements. These terms of reference and/or guidelines are meant to set the minimum standards for the study submission expectations, required as part of a complete application.

59While pre-application consultation (“PAC”) meetings are no longer mandatory, the balance of the provisions read in isolation still stands. However, s.11.8 of the OP itself does not enumerate the additional information, reports and/or studies required, nor does it reference the DASP By-law. It simply states that the City will maintain and update a development application study policy, and for any studies listed, will provide guidelines as minimum standard requirements. It is the DASP By-law that references s.11.8 of the OP. This does not meet the precondition set out in s.22(5) of the Act.

60The Tribunal has historically and consistently interpreted s.22(5) of the Act as requiring any complete application requirements to be explicitly set out in a Municipality’s OP. While these cases are not binding, I find no compelling reason to depart from the traditional approach and interpretation, and take guidance from former Chair of the Tribunal, M. Hubbard and Executive Vice Chair S.W. Lee (as he then was) in the Top of the Tree decision. There, the Tribunal stated (emphasis added):

13 There is no doubt that the legislation, in the manner it is worded, calls for an Official Plan policy to be adopted and in force before a municipality can legally commence to impose additional requirements for complete applications. A post-January 1, 2007 O.P. policy setting out the type of requirements needed in particularized circumstances would clearly be the legal way to do business. Subsection 22(5) sets out specifically that the municipality may request for any other information or material “only if the official plan contains provisions relating to requirements under this subsection.” The wording is amply clear to indicate that there is a pre-condition for the application of the requirements.

14 Furthermore, a go-forward policy for what is required makes practical sense. Where else can these requirements be found? How are they to be discerned, if not expressly stated? There is no more efficacious means than for a municipality to set the scheme into motion by way of clearly stated rules in an OPA. In our view, something similar to Schedule 1 of O.Reg 543/06 should be adopted and to be found in an Official Plan. This makes sense not only from the point of view of the users, it would also make sense from the standpoint of the regulators. This panel disagrees that such an exercise will be a waste of time — in fact, it will be time well-invested and time-saved. We recognise that an OPA would invite the public meetings and all the statutory safeguards and procedures, including a possible Board hearing before the policies can take full force and effect. Nonetheless, that is the least to be expected from municipalities that are now vested with new powers and new responsibilities.

61Similarly, and applied to the facts of the case at bar, the Tribunal finds that had the City desired to rely on the DASP By-law and the 2024 TOR for the completeness of applications, it ought to have taken steps to have explicitly stated so in its OP as pre-conditioned in s.22(5) of the Act, and not as a requirement of tangential policies in a stand-alone by-law. This is the only appropriate way forward of providing clarity to applicants regarding the explicit requirements of a complete application, without the ambiguity of what other requirements might exist in documents and policies that stand outside of the OP and Act somewhere. The approach taken by the City in implementing its requirements through the DASP By-law, as it did, circumvents the rigorous public notice, public process, and public scrutiny that a proposed OPA would have attracted, along with the appropriate safeguards in place by way of thwarting appeal rights to this Tribunal.

62In regard to Mr. Marc’s argument that this Tribunal’s longstanding case law did not properly consider or account for other provisions within the Act where similar enabling authority as that in s.22(5) is used, that argument is untenable. As Mr. Flowers pointed out in reply argument, each of the three provisions of the Act cited by Mr. Marc contains within them the express authority for a Municipality to implement further policy by way of by-law specifically. Note the following key extracts of the relevant provisions (emphasis added):

28(2) Where there is an official plan in effect in a local municipality or in a prescribed upper-tier municipality that contains provisions relating to community improvement in the municipality, the council may, by by-law, designate the whole or any part of an area covered by such an official plan as a community improvement project area.

36 (1) The council of a local municipality may, in a by-law passed under section 34, by the use of the holding symbol “H” (or “h”) in conjunction with any use designation, specify the use to which lands, buildings or structures may be put at such time in the future as the holding symbol is removed by amendment to the by-law.

37 (1) The council of a local municipality may, in a by-law passed under section 34, authorize increases in the height and density of development otherwise permitted by the by-law that will be permitted in return for the provision of such facilities, services or matters as are set out in the by law [now repealed].

63The Tribunal agrees with Mr. Flowers that references to these other sections of the Act are distinguishable from s.22(5). They each do encompass the precondition that the OP contain “provisions relating to” certain matters; however, the language in the preceding subsections of each provision enables a Municipality to implement those policies by way of a separate by-law. The same is not true in the language of s.22(5) of the Act, and had it been the intent of the legislature that the policies could stand outside of an OP through by-law, it bears to reason the same enabling language would have been used in s.22(5) as these other provisions.

64The Tribunal also agrees that the City was seemingly aware of the requirement to explicitly set out its complete application requirements within its OP, as evidenced through the City’s former OP (adopted through OPA 71), which did, in fact, explicitly include a list of specific studies and/or plans that could be required for a complete application. The reply affidavit evidence of land use planner Paul Black, on behalf of Mattamy (as well as the reply affidavit evidence of land use planner Michael Goldberg on behalf of Caivan), summarizes a City staff report dated December 19, 2008, wherein it was recommended that Council approve an OPA to implement what were then changes to the Act in respect of complete applications and the PAC. In recommending that Council adopt OPA 71, which explicitly included a list of thirty specific types of reports and/or plans that may be required for a complete application, that report stated:

A municipality cannot demand a study for the purposes of a “complete” application on the strength of the Official Plan saying that it may be required in the course of an evaluation. The municipality must specifically identify those studies that may be required at the time an application is submitted.

65In setting out the basis for the amendment, the preamble to OPA 71 further stated that the Act “requires municipalities to have a policy in their Official Plan setting out the types of submissions that may be required for the purposes of a “complete” application. This amendment implements that requirement.” The City’s former OP was repealed with the approval of the current OP in 2022, which did not include policies similar to the former plan.

66The Tribunal does appreciate Mr. Marc’s stated concerns that applications seeking to expand urban boundaries are critical decisions that require the utmost consideration and planning to be arranged beforehand, rather than after the fact. The Tribunal also appreciates that the City had a relatively short period of turn-around time from the time that the in-force date of the 2024 PPS was announced to put in place policies that would respond to the impending changes. However, to this end the Tribunal must agree with the submission of Mr. Flowers that the City took considerable time and resources in preparing and presenting its Staff Report complete with a new application type and the 2024 TOR, holding Council Meetings and passing resolutions to adopt the various amending by-laws including the DASP By-law – all of which amount to time, resources, and efforts that could have been directed at implementing its desired application policies through the appropriate OPA.

67The words of this Tribunal in the Minto decision are apt. As in that decision, the Tribunal here too recognizes that the DASP By-law is in force and effect and not under appeal on this Motion. It is not the task of the Tribunal to amend or revise the DASP By-law. In interpreting the precondition language of s.22(5) of the Act in its entire context, along with the guidance from the decision in Top of the Tree, a Municipality could surely demand for additional materials and information in the course of an evaluation at any given time. However, something more than the DASP By-law, enumerated within the OP itself, is required for the purposes of a complete application.

68On this basis alone, the Tribunal sees fit to grant both Mattamy and Caivan the primary bases for relief respectively sought; however, it will nevertheless address the reasonableness requirements under s.22(6.2) of the Act.

Issue 2: Reasonableness Requirements under [S.22(6.2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec22subsec6.2_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

69Mr. Marc emphasizes s.22(6.2) of the Act and the importance of assessing the reasonableness of the additional information and materials demanded in the context of this case. In interpreting reasonableness, Mr. Marc states the Tribunal must bear in mind the importance of the task and to contextualize the importance of the task, Mr. Marc submits that an amendment to the City’s OP to expand a settlement area is one of, if not the, most important amendments that can be made to an OP. Mr. Marc highlights key provincial interests, including the orderly development of safe and healthy communities, the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems, and the appropriate location of growth and development, as set out in subsections 2(h), (f) and (p) of the Act. Mr. Marc further points to s.3 of the Act, which requires that planning decisions by an approval authority be consistent with the policy statement issued pursuant to that section. As of October 20, 2024, that is the 2024 PPS. S.2.3.2 of the 2024 PPS sets out policies with respect to new settlement areas and settlement area boundary expansions, and specifically outlines the need to, inter alia, designate and plan for additional land to accommodate an appropriate range and mix of land uses, and ensure sufficient capacity in existing and planned infrastructure and public service facilities.

70Mr. Marc submits that the language of the 2024 PPS is mandatory, and the enumerated factors must be considered by a Municipality in addressing potential settlement area expansion, particularly since Municipalities will be dealing with these issues long after developers have completed their developments and moved on. Mr. Marc asserts that the coming in force of the 2024 PPS created a new application avenue whereby private landowners could now initiate the processing of urban expansion applications directly. Accordingly, and in anticipation of the 2024 PPS, Mr. Marc turns to the Staff Report that was prepared and considered by the joint Agricultural and Rural Affairs and Planning and Housing Committee, and subsequently City Council, who implemented the recommendations for the framework now dealing with UVBE-OPA applications. Mr. Marc submits that this new framework provides a clear process for privately initiated applications outside of the formerly required comprehensive review, provides for “off-ramps” should applicants decide to cease pursuing their application, and does so in a manner consistent with the mandatory language of the 2024 PPS.

71Mr. Marc further contends that individual applicants and their consulting teams do not likely have the requisite system knowledge of the City’s infrastructure network to conduct the fulsome analysis required of what capacity is available or to arrive at a reasonable cost estimate of what additional expenditures would be incurred to provide necessary system capacity. In this regard, he relies on the Affidavit evidence of the City’s professional engineer in hydraulics and master planning, Kevin Alemany, chartered water and environmental manager and asset management professional, James Jorgensen, and transportation planner, Max Emile Walker. As a result of the specialized knowledge required, Mr. Marc submits that Steps 1 and 2 of the new UVBE-OPA application process are provided by the City as a service to prospective applicants.

72Similarly, Mr. Marc submits that Step 3 of the new UVBE-OPA applications process addresses the question of the need for additional land within the urban settlement area, and Step 4 focuses on the suitability of the proposed expansion to the settlement area, as required for the appropriate consistency analysis with the relevant provisions of the 2024 PPS, aforementioned. Mr. Marc adds that the requirements set out in the DASP By-law are exactly the materials and information necessary for a Municipality to make an informed decision as to whether the legislative and planning tests can be met, not whether they have been met. Mr. Marc asserts that the necessary information and materials have simply not been provided as follows:

Completion of Steps 1 and 2 for The Infrastructure Capacity Assessment

I. Mattamy has initiated a Step 1 – Capacity Assessment and a Step 2 – Off-site Servicing Project Identification for which the City has retained consultants to undertake the work of in respect of water and wastewater which are not yet complete.

Submission of Lands Needs Assessment

II. Mattamy has not provided a Lands Needs Assessment.

Submission of Settlement Area Parcel Analysis

III. Mattamy has not provided a Settlement Area Parcel Analysis.

FINDINGS ON ISSUE 2: REASONABLENESS REQUIREMENTS UNDER S.22(6.2)

73The Tribunal recognizes the significance of decisions related to the expansion of settlement areas and does not desire to minimize the importance of the additional studies and reports identified in the DASP By-law for the purposes of the task. However, the Tribunal finds that the complete application requirements set out under the DASP By-law fail the reasonability requirement under s.22(6.2) on multiple grounds in the circumstances of these Motions.

74First, the Tribunal agrees with the submissions of Mr. Flowers that changes to s.2.3.2 of the 2024 PPS from that of s.1.1.3. of the former 2020 PPS dealing with settlement boundary expansions (captured in paras [34] – [37] in the discussion above), implemented more general and permissive language for such applications, eliminating the reference and limitation to a strict, comprehensive review. Rather, the 2024 PPS sets out seven items that need only to be considered on applications for settlement boundary expansions (lettered ss.(a) through (g)), with only items (a), (b) and (g) being applicable to the Mattamy (and Caivan) Lands. Indeed, even the Staff Report acknowledges the move away from the comprehensive approach, as stated at page 3 of that report: “One of the significant changes in the 2024 PPS is a move from a comprehensive approach to planning for growth to a piecemeal approach allowing private applications.” The Tribunal agrees with Mr. Flowers that City Staff’s approach within its proposed framework attempts to maintain an alternative form of comprehensive review in the face of an acknowledgment of the legislative intention to move away from that as a requirement under the 2024 PPS.

75Turning to the reasonableness requirements under s.22(6.2), and Mr. Marc’s argument regarding the mandatory language of the 2024 PPS – i.e. that the enumerated factors set out at s.2.3.2 necessitates a Municipality to consider those requirements under the DASP By-law regarding, inter alia, the sufficiency of infrastructure and public service capacity – this has also been previously addressed by Tribunal case law in the context of motions for completeness.

76In Industrial Equities, the City of Guelph notified the applicant in that case that its site plan application was incomplete as it, inter alia, failed to address consistency with the then 2020 PPS as had been outlined at an earlier site plan review committee meeting. The Tribunal, in that decision, delineated that the motion before it was to determine if the application should be deemed complete, not what is required for the purposes of an approval. At paragraph 76 in that decision this Tribunal states:

The Tribunal notes that while broad discretion should be given to the City on materials requested pursuant to its OP, the Tribunal should not micromanage the exercise of discretion by the City, which is confined by statutory limits. The Tribunal finds that the City did not comply with s. 41(3.7) (b) of the Act respecting reasonableness in determining the completeness of the Application. Specifically, requirements including a demonstration of consistency with the PPS to the satisfaction of the City, approval/clearance of the Application by external agencies before the Application has been submitted, and requests for revisions to information and materials to address the City's review comments, are not appropriate or reasonable at this stage of the site plan approval process.

77In the case at bar, the Tribunal turns squarely to Mr. Marc’s submission that the information and materials requested are intended to make an informed decision as to whether the legislative and planning tests can be met, not whether they have been met. This is a very delicate distinction that must be handled with care. Requiring information and materials to initiate the review and consideration of the relevant issues is distinct from requiring information and materials to the level of determining whether an approval can be made. It is also precisely what the Tribunal dealt with in Industrial Equities. At paragraph 57 the Tribunal states that deeming an application complete does not require “that it be revised to the satisfaction of the City to a standard that it considers worthy of site plan approval.”

78Similarly, it is important here too that statutory requirements of deeming an application complete under s.22(6.2) of the Act not be conflated with what may be required for determining an approval of an application. While Industrial Equities is non-binding and dealt with a site plan application, I would agree with the determination of the Tribunal that while further studies and reports may be necessary for an informed decision in contemplating granting an approval of an OPA, and may be requested during the review and consideration process, the issue before the Tribunal on such a motion is not one of approval. Rather, it is one of completeness of an application which is a procedural exercise that does not require a determination of the merits of an application nor one of consistency with the PPS. Should an applicant choose to proceed with an urban boundary expansion application absent relevant studies and reports that may be required for an informed decision of approval, they would do so at their own peril. However, the purposes of a Motion brought under s.22(6.2) serve only to confirm that the prescribed information and materials have been provided to the Municipality to initiate its review, comment, deliberation and consideration for approval or refusal. In any event as discussed further below, the Tribunal finds that consistency with the 2024 PPS can be assessed based on the information and materials that were submitted within the Mattamy Application materials.

79The balance of reasons regarding the reasonability requirements of s.22(6.2) can be dealt with by way of each of the individual items deemed deficient by the City.

Completion of Steps 1 and 2 for The Infrastructure Capacity Assessment

80The City relies on the Affidavit of Mr. Alemany to tender evidence of a technical nature demonstrating the importance of properly considering the existing and planned servicing capacity for potable water (Step 1). Mr. Alemany states that if the infrastructure capacity is not readily available, “connecting a new service area to the existing system could reduce the level of service to the existing system in terms of (i) available flows (ii) system pressures and (iii) system redundancy”. Mr. Alemany provides detailed concerns related to the potential for reduced available flows for fire protection to existing and proposed hydrants, the potential for reduced system water pressures to the distribution network during peak demands, which may fall below City and Ministry of Environment Guidelines, and the potential for insufficient system redundancy in providing required flows and recommended minimum pressures due to excess demand in states of emergency such as power failure and broken watermains.

81The City would be required to plan and account for the costs of infrastructure associated with any system capacity deficiencies, which is dealt with by way of Step 2 of the UVBE-OPA application process. Mr. Alemany emphasizes the importance of Step 2 because of the integration and interdependence of infrastructure on a water distribution network, which would require evaluation of all necessary improvements, including elsewhere in the network, along with evaluation of the impact of other proposed or approved developments simultaneously (i.e. off-site servicing project identification).

82Mr. Jorgensen’s Affidavit on behalf of the City provides further technical evidence speaking to the rationale for completing Steps 1 and 2 of the UVBE-OPA application process. Mr. Jorgensen explains that boundary expansions are inherently located at the extremity of the sewer system and have generally not been part of any servicing plan. Typically, the existing systems were not designed to account for flows from boundary expansions which is why in most cases capacity is limited and restrictions will be identified in the Step 1 assessment. This would lead to Step 2 of the assessment which Mr. Jorgensen stresses is crucial so as to allow the City to plan infrastructure in a sustainable way. He explains that the City’s recent Infrastructure Master Plan (“IMP”), which comprises a cost-effective set of projects, is not specific to an individual expansion area but rather is based on the cumulative impact of multiple expansion areas. Accordingly, Mr. Jorgensen opines that Steps 1 and 2 are required to address the fact that the City’s IMP does not account for new expansion areas on an ad-hoc basis, which will have system-level impacts, nor any off-site projects required to meet capacity needs.

83Mr. Jorgensen further details the City’s proprietary hydraulic modelling tools which allow the simulation of various scenarios based on data that is updated and controlled to ensure accuracy which support infrastructure decision making. He opines that hydraulic assessment prepared by DESL dated October 2024 within the Mattamy Application materials (“Mattamy Hydraulic Assessment”), among other alleged deficiencies, calculated the wastewater flow generation using the City’s design criteria which was not appropriate. He states that the City’s proprietary hydraulic modelling is needed to assess various design rainfall events to gain a more comprehensive understanding of the existing system capacity. Mr. Jorgensen also states that the servicing concepts within the Mattamy Hydraulic Assessment do not provide a thorough or accurate cost estimate related to off-site servicing which is one of the objectives of Step 2 so that financial implications to both the proponent and City are understood before any commitments are made to development of an expansion area. He concludes that only the City is able to adequately complete Steps 1 and 2 to address the objectives and intent of the process.

84While Mr. Walker’s Affidavit on behalf of the City speaks to Step 4 of the new UVBE-OPA application process, being the transportation review, given the overlap with infrastructure capacity it can also be addressed here. Similar to the City’s other witnesses, Mr. Walker’s evidence is of a technical nature and provides an overview of the Infrastructure Capacity Assessment Terms of Reference for Transit and Roads. It is the City’s land use planner, Stream Shen, that states that the transportation impact assessment prepared by CGH Transportation dated September 2024 (“CGH TIS”) submitted by Mattamy has a number of deficiencies based on the City’s 2024 TOR and is therefore not sufficient for deeming the Application complete.

85Finally, the City also tendered evidence from its land use planning and land economist witness, Royce Fu, who co-authored the Staff Report and was responsible for the preparation of the recommendation dealing with the new UVBE-OPA application framework. Mr. Fu states in his Affidavit that Steps 1 and 2 of the new application requirements are “considered a service provided by the City to a prospective applicant, similar to the role a consultant plays in providing objective and impartial information related to a planning matter.” Mr. Fu further states it is a service the City “needs” to provide “as landowners and other consultants do not have access to sufficient off-site infrastructure information or models relating to the City’s drinking water and sanitary sewer networks.”

86Mr. Marc submits that both Mattamy and Caivan’s witnesses are planners, not engineers and that the Tribunal must defer to the evidence from the technical witnesses, which provides the rationale and basis for why these studies and reports are required. In response, Mr. Flowers submits that none of the technical evidence is relevant on these Motions given the determination to be made is a procedural exercise which does not require an analysis of the studies or merits in relation to the conformity and consistency exercises necessary for approvals. Notwithstanding, Mr. Flowers submits that the information and studies requested have already been provided within the Mattamy Application materials.

87The Tribunal appreciates that the technical evidence of the four witnesses tendered by the City are intended to speak to the rationale and importance of the studies and reports requested in order to assess their reasonableness. Indeed, the Tribunal accepts the importance as conveyed for the purpose of making informed decisions respecting boundary expansion applications. However, and to reiterate, care must be taken not to conflate the requirements for deeming an application complete with what may be required for determining an approval of an application. For instance, the CGH TIS may ultimately be found to be deficient, but that analysis is reserved for a Hearing on the merits respecting approval. Where a TIS is required and one is submitted, the analysis generally ends for the purposes of deeming an application complete.

88As for Steps 1 and 2 of the UVBE-OPA application process, while it is understandable why the City would desire to have these studies completed internally at the application submission stage, the Tribunal cannot make a determination that such a requirement is reasonable under s.22(6.2) of the Act.

89First, s.22 of the Act expressly states that where an application for an OPA is made, the prescribed information and material under s.22(4), or the additional information or material under s.22(5), shall be provided by the “person or public body that requests [the] amendment”. On its face, it is clear that the Act refers only to materials provided by the Applicant directly and not by a Municipality on behalf of an applicant. Had it been the intent of the legislature that information or materials could be provided by the City on behalf of an applicant, that language would have been incorporated into the Act but it was not. The Tribunal rejects Mr. Marc’s submission that in the circumstances of a case such as this, and in providing the service for Steps 1 and 2, the City stands in the same shoes as that of a consultant hired by an applicant for the purposes of engaging the necessary studies and reports. When an outside consultant is hired by an applicant, there is privity of contract and a level of responsibility and control that an applicant maintains over their consultant. So too are there ethical obligations on the part of an independent consultant to their client and their profession. The same cannot be said to be true regarding the relationship dynamic between an applicant and a City conducting work on their behalf for a pending application that the City itself would then be reviewing for the purposes of assessing approval.

90An analogous scenario was addressed by this Tribunal in ClubLink Corporation ULC v. Oakville (Town), 2017 CanLII 36501 (ON LPAT) [“ClubLink”]. In that case, the Town of Oakville had passed an interim control bylaw (ICBL) restricting the use of the lands owned by the applicant pending completion of several Town-initiated studies, including an Urban Structure Review, a Land Use Economic and Impact Analysis Study and a Cultural Heritage Landscape Assessment. The ICBL was extended, and in the meantime, the applications were submitted with supporting materials for an OPA, ZBA, and DPS. The Town deemed the applications incomplete, in part because the studies undertaken by the Town “to properly understand the policy context for redevelopment proposals” were not yet complete. At paragraph 12 of the motion decision for completeness of applications, this Tribunal refused the Town’s position that the completeness of the applications could be held in abeyance pending the conclusion of their own commissioned studies or alternatively, the completion of the applicant’s own studies should they not wish to wait for the City to complete its work. The Tribunal found that position to be unreasonable and ultimately deemed the applications complete.

91Similarly, the Tribunal finds it unreasonable in the present case that a Municipality may hold a boundary expansion application in abeyance pending the completion of its own studies, with no accountability to an applicant on the completion timeline of those studies.

92The evidence and record reflect that it would be seven months at a minimum, and likely longer, from the time that the Mattamy Application was submitted that the Steps 1 and 2 studies might be completed by the City. Mr. Marc submits that this timeline has not yet reached the threshold of unreasonable. Mr. Marc contends that the distinction in the ClubLink case is that a period of 1 year had lapsed between the PAC meeting in that case and the expected delivery date of the completed Town studies which remained pending. In contrast, Mr. Marc highlights that Mattamy filed the present Motion only two months following the submission of its Application (four months in the case of the Caivan Motion). Mr. Marc purports that until the estimated delivery date for the Steps 1 and 2 assessments of mid-May has come and gone, it is reasonable to allow a Municipality the time it states it needs to complete that work. The Tribunal does not accept this position. An estimated period of seven months, or longer with no guarantees, between the submission date of an application and the estimated completion date of studies undertaken by the City is not reasonable – particularly in light of the fact that the Mattamy Lands are not comprised of speciality crop areas or prime agricultural areas, and which remain currently approved for estate lot development on partial services.

93In summary, the Tribunal finds the Steps 1 and 2 Infrastructure Capacity Assessment requirement to be unreasonable. While the City may request additional studies and reports for the purposes of the approval of an application during its review and processing stage, they are not reasonable requirements under s.22(6.2) of the Act for the purposes of completeness of Application on the present Motion.

94Notwithstanding this finding, The Tribunal agrees that Mattamy has provided the materials relevant and necessary, including the Mattamy Hydraulic Assessment report and the CGH TIS. In respect of the Mattamy Hydraulic Assessment, the Tribunal accepts that, among other things, it assesses the capacity of the water distribution system and identifies that off-site upgrades would be required, including pumping upgrades within particular pressure zones, as well as deems two routing options for connecting the lands to the sanitary sewer network as viable to accommodate planned wastewater flows. In respect of the CGH TIS, the Tribunal acknowledges that Mr. Walker indicated he had not reviewed the Mattamy Application. Further the CGH TIS indeed does include a discussion of transit capacity and transit priority as well as a screenline analysis using TRANS, as stated to be required by Mr. Walker per the 2024 TOR. Accordingly, the Tribunal accepts that Mattamy has provided the information and materials necessary for the intended purpose behind the Steps 1 and 2 requirements and in regard to the completeness of its Application.

Submission of Lands Needs Assessment

95The Staff Report indicates that the Lands Needs Assessment contemplates a report that uses “the current Official Plan growth projections as the basis for determining the need for comparison with the existing designated supply to determine if there is less than a 15-year supply.” Item number four of the 2024 TOR regards the content and evaluation criteria for the Lands Needs Assessment and address s.2.3.2 of the 2024 PPS regarding a) the need to designate and plan for additional land to accommodate an appropriate range and mix of land uses, and b) providing for the phased progression of urban development through new or expanded settlement areas.

96Mr. Shen’s evidence on behalf of the City suggests that a Lands Needs Assessment was not submitted as part of the Mattamy Application. He states that this report is among the information essential for the City to review the applications in accordance with the Act and 2024 PPS policies in rendering a decision on the Application.

97Mr. Black’s evidence on behalf of Mattamy turns to the Fotenn Planning Rational (Fotenn Report) submitted within the Mattamy Application, which includes an analysis regarding consistency with s.2.3.2 of the 2024 PPS. The Fotenn Report concludes, inter alia, a) that the application “meets the criteria of s.2.3.2 for consideration of inclusion in the urban boundary”, and b) that pursuant to policy 2.1.1 of the 2024 PPS, a boundary expansion is needed “to provide a sufficient supply of lands to meet the minimum 15-year supply requirement of the PPS”. More specifically, the Fotenn Report concludes that the City has a deficit of 288 gross hectares of greenfield land using Ministry of Finance Population Projections referenced in the 2024 PPS.

98Mr. Marc contends that the suggestion that a quantitative analysis is no longer required for a Lands Needs Analysis is not correct. He points to s.2.1.4(a) of the 2024 PPS and suggests that a numerical analysis is required to achieve accommodation for 15 years of growth of designated areas. He states that while the use of the 2024 Ministry of Finance growth projections, which were utilized in the Fotenn Report are referred to in the 2024 PPS, it remains important to consider that the City had just completed and ratified its comprehensive review, an extensive exercise under the Act, not one year prior to the Mattamy (and Caivan) Applications being submitted. He points to the fact that Provincial projections are released on a yearly basis and asks whether it is reasonable to expect a Municipality to replicate the extensive work that is required with respect to infrastructure assessments and transportation master plans on population projections that vary from year to year at the instance of any private application being filed. He submits that what is required from the Applicant is a quantitative analysis as to how or if the subject lands are necessary to achieve the 15-year land supply, that one was not provided, and that anything short of the quantitative investigation is sufficient to deem the subject Applications incomplete.

99The Tribunal finds that a Lands Needs Analysis was provided in the context of the Mattamy Application as required under ss.2.1.4(a) and 2.3.2.1(a) of the 2024 PPS, and that in any event, the notion of a quantitative analysis is not reasonable.

100Under s.1.1.3.8(a) of the former 2020 PPS, a settlement area boundary expansion at the time of comprehensive review required demonstration that “sufficient opportunities to accommodate growth and to satisfy market demand are not available through intensification, redevelopment and designated growth areas to accommodate the projected needs over the identified planning horizon.” This is among the language changed in the 2024 PPS which, by contrast, requires only consideration of “the need to designate and plan for additional land to accommodate an appropriate range and mix of land uses” under s.2.3.2.1(a).

101Additionally, s.2.1.4(a) of the 2024 PPS on which the City relies states that in order to, inter alia, “meet projected requirements of current and future residents…” authorities shall “maintain at all times the ability to accommodate residential growth for a minimum of 15 years through lands which are designated and available for residential development…” (emphasis added). The Tribunal agrees that the 2024 PPS sets a minimum time period, with no maximum time period specified in the policy. In other words, if an authority had complied with this requirement within the minimum 15-year supply period, including additional lands within the urban boundary would not offend the policy as there is no maximum time period. Rather, it would only serve to increase the number of years for land supply in our Province which is known to have a housing crises and shortage of housing supply. The requirement on a Municipality to conduct their own ongoing quantitative assessments to ensure they are maintaining their minimum 15-year supply should not be conflated with an obligation imposed on an applicant to conduct such a quantitative analysis for the purposes of completeness of application. Further, and notwithstanding, any disagreement as to the calculations or conclusions of a Lands Needs Assessment completed by an Applicant would go to the merits of the approval of the application and is not a question for determination on application completeness.

Submission of Settlement Area Parcel Analysis

102The Staff Report indicates that a Settlement Area Parcel Analysis contemplates a report “on how the subject lands meet the location criteria established in the Official Plan, including alternative locations”.

103The City states that Mattamy has not provided a Settlement Area Parcel Analysis. The Tribunal finds this requirement to be unreasonable.

104While the 2020 PPS required a comprehensive review, which expressly required consideration of “alternative directions for growth or development”, the requirement for a comprehensive review was not carried forward through to the 2024 PPS with its entire definition having been removed. Nor was any similar language carried through to s.2.3.2 of the 2024 PPS requiring a consideration of “alternative directions for growth or development”. Had the legislature intended to maintain a comprehensive review or such requirements for the purposes of privately initiated boundary expansion applications, that language which previously existed would have been maintained but was not. It would therefore be unreasonable to allow an approval authority to maintain as application requirements that which the legislature has expressly removed.

105Notwithstanding, the Tribunal also agrees and accepts the evidence of Mr. Black that, in effect, a Settlement Area Parcel Analysis was provided by way of the Fotenn Report. In particular section 1.3 and Appendix 1 of the Fotenn Report includes a discussion of the City’s criteria for the evaluation of individual land parcels as candidates for urban boundary expansion. Indeed, it further includes an assessment of the Mattamy Lands in relation to the City’s scoring and selection criteria and concludes that the lands are “an ideal candidate site to be included in the Urban Boundary… given its location in proximity to the existing urban boundary, the availability of services and its proximity to employment uses located south of the subject lands.”

Conclusion on the Mattamy Motion

106For the reasons set out above, the Tribunal finds that the additional information and materials required by the City in the Mattamy Notice of Deficiency, as set out in the DASP By-law, are not founded in law, and additionally, not reasonable requirements for the purpose of completeness of the Application.

107Mattamy had provided all the prescribed information and materials required for its Application, and had paid its fees (under protest), pursuant to s.22 of the Act by November 29, 2024. The Tribunal finds this to be the appropriate date that its Application was complete and relies on the Divisional Court decision on leave to appeal in the ClubLink case in this regard (2018 ONSC 589 (Ont. Div. Ct.) at paras 32 and 33).

THE CAIVAN MOTION: DISCUSSION, ANALYSIS AND FINDINGS

Issue 1: Was the Caivan Motion Submitted in Complete Form Prior to the City’s Establishment of the New UVBE-OPA Application Type?

108The facts of the Caivan Motion differ from the Mattamy Motion in that the information and materials that were submitted by Caivan for the purpose of its Application were filed on October 8, 2024, before the 2024 PPS was proclaimed in force.

109Mr. Fu’s evidence for the City is that an assessment of the Caivan Application prior to October 20, 2024, would have required consistency with the policy framework of the Official Plan and 2020 PPS in place at the relevant time. The policy framework allowed urban expansion applications only at the time of a comprehensive review or in accordance with s.1.1.3.9 of the 2020 PPS. There was no comprehensive review undertaken by the City then, nor to date. S.1.1.3.9 carves an exception for applications outside of comprehensive review where there is, inter alia, “no net increase in land within the settlement areas”. Mr. Fu opines that the Caivan Application did not propose to offset an equivalent land size within the urban or village areas in order to comply with the 2020 PPS. Accordingly, he concludes that neither the policy framework nor the 2020 PPS would have permitted the requested expansion as proposed in the Caivan Application. On this basis, Mr. Marc submits that the Caivan Applications could not have been consistent with the 2020 PPS, could not have been adopted by the City, and therefore cannot be said to have been deemed complete on its submission date of October 8, 2024.

110Indeed, the Caivan Notice of Deficiencies dated November 7, 2024, sets out that a new process and fee was established by the City to facilitate the review of private boundary expansion applications on the basis of the new 2024 PPS, and that since the Application was not deemed complete prior to Council’s adoption of the new UVBE-OPA application with no transition provisions, the submission would be reviewed against the new process approved by Council.

111In contrast, Mr. Flowers argues that the Caivan Application is not subject to the new requirements regardless of the Tribunal’s findings on the lawfulness and reasonability of the new UVBE-OPA application requirements on the basis of a) the Clergy principle, and b) that the DASP By-law, as well as By-laws 2024-445 and 2024-423 respecting the new fees, are not retroactive.

112The Tribunal agrees with the submissions of Mr. Flowers and finds that the City’s position is indeed misguided for a few key reasons. First, the Clergy principle has long been recognized by the Divisional Courts as a procedural policy that is available to the Tribunal, which allows planning applications to be tested against the law and policy documents in place at the date of an application, rather than in effect at the date of the decision making, to ensure procedural fairness to an applicant. Clergy can be overridden by statute as has been done under s.3(5) of the Act which states that in respect of the PPS, the policy statement in effect on the date of the decision is what must be applied.

113However, it is important to bear in mind that it is not the PPS that identifies the information and materials that are required for the purpose of completeness of Application. Those requirements are identified by the Act itself and the regulations made thereunder. Any additional information or materials that may be required are subject to the precondition under s.22(5) requiring provisions relating to said requirements to be contained within the OP, as well as the reasonableness requirement under s.22(6.2). Accordingly, a review of the 2024 PPS for the purpose of determining the completeness of an application is irrelevant. As previously discussed above at paragraphs [76] - [78] of this Decision, The Tribunal finds that an examination of consistency with the PPS is a determination for the merits of an application, not an exercise required for the purpose of determining application completeness. That exercise is governed by the requirements under s.22 of the Act and any further information and materials set out under the OP. The consistency exercise against the PPS must occur at the time of the decision making on the merits of the Application, and even then, it must be against the PPS in effect at that time, regardless of whether this Tribunal finds it procedurally fair to apply Clergy in respect of the balance of the applicable law and policy. To put it another way, had the changes of the 2024 PPS not been known as of the resubmission date of October 8, 2024, wherein the balance of the Caivan Application deficiencies were rectified, the Application would have been deemed complete as there is no dispute that the Schedule 1 prescribed information and material (pursuant to O.Reg 543/06 made under s.22(4) of the Act) had been provided. It matters not that the City was not engaged in a comprehensive review at the time which is what would have been required to consider a decision on the merits. Any changes to the PPS know after the date of an application deemed complete would have been required to be addressed through additional requests for information and materials relevant to the making of a decision on the merits of the application, to address conformity with the new PPS.

114Second, where a Tribunal finds that Clergy ought to indeed apply, while it would not apply to the PPS, it would apply to the authority’s official plan policies even in the case of determining completeness of application (see Queenscorp (Evans) Inv. v. Toronto (City), 2023 CarwellOnt 17643 at para 84). In Sun Life Assurance co. of Canada, Re, 2007 CarswellOnt 8003 [“Sun Life”], the Ontario Municipal Board, as this Tribunal then was, succinctly captured the equitable principles of natural justice behind Clergy when it stated at paragraph 41 (emphasis added):

With all due respect to previous panels of this Board, this panel does not accept the proposition that the choice of policy regime to be applied to an application is merely a matter of Board procedure. The application of the relevant policy regime goes to the heart of procedural fairness in matters heard by this Board. The logical corollary of the reasoning in Dumart and James Dick is that an applicant, at the time it files an application with a municipality, can not know what policies against which its application will be tested. Such a situation would be patently unfair. It would facilitate a process whereby a municipality, with policies in place, could receive an application and decide that, while current policies would mandate approval, it does not wish to approve the application. Upon making this determination, policies could be changed and ex post facto applied to the application.

115Similarly, in the case at hand, the Tribunal finds it would be patently unfair to allow an authority the ability to hold an application in abeyance when it otherwise could be deemed complete pending changes to its application requirements that it wishes to implement, but where those changes have not yet in fact been properly, or lawfully, implemented.

116Given the Tribunal’s findings on the foregoing, further reasons need not be given regarding Mr. Flowers’ retroactive argument. Notwithstanding, the Tribunal will acknowledge the presumption that legislation is not applied retroactively unless expressly stated so or by necessary implication required by the language of the Act (Gustavson Drilling (1964) Ltd. v Canada (Minister of National Revenue), [1997] 1 S.C.R. 271 as cited by Burlington (City) v. Burlington Airpark Inc., 2017 ONCA 420 [“Burlington Airpark”] at para 41). Just as in the Burlington Airpark decision, here too, there is no language in the DASP By-law, nor in By-laws 2024-445 and 2024-423, that indicate it was intended to operate retroactively.

117On the basis of the foregoing, the Tribunal determines that the Clergy principle applies in the circumstances of this case to the completeness of application requirements, and that neither the DASP By-law, nor By-laws 2024-445 and 2024-423, apply retroactively to the requirements of the completeness of the Caivan Application materials. Accordingly, the Caivan Motion was submitted in complete form inclusive of payment of the requisite fees for which the City acknowledged and issued a receipt prior to the City’s establishment of the new UVBE-OPA application type and requirements.

Issue 2: Condition Precedent Under S.22(5) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

118The Tribunal finds that the additional information and materials required under the DASP By-law in respect of the Caivan Application do not satisfy the condition precedent under s.22(5) of the Act and are not founded in law for the same reasons as set out in the Mattamy Motion at paragraphs [50] to [68] above. To minimize redundancy, those reasons need not be restated here.

Issue 3: Reasonableness Requirements under [S.22(6.2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec22subsec6.2_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

119The Tribunal finds that the reasonableness requirements under s.22(6.2) of the Act have not been met in respect of the Caivan Motion for the same reasons as set out for the Mattamy Motion at paragraphs [69] to [105] above. To minimize redundancy, those reasons need not be restated here.

Conclusion on the Caivan Motion

120For the reasons set out in this Decision, the Tribunal finds that the Caivan Motion was submitted in complete form prior to the City’s establishment of the new UVBE-OPA application type and requirements, which do not apply on the basis of Clergy, as well as on the basis that they do not expressly indicate retroactive applicability.

121Notwithstanding, the Tribunal further finds that the additional information and materials required by the City in the Caivan Notice of Deficiency are not founded in law, nor are they reasonable requirements for the purpose of completes of Application.

122Caivan had provided all the prescribed information and materials required for its Application and paid its fees pursuant to s.22 of the Act by October 8, 2024. The Tribunal finds this to be the appropriate date that its application was complete.

ORDER

123The Tribunal orders that the Caivan Motion is granted, and, as of October 8, 2024, Caivan (Stittsville South) Inc. and Caivan (Stittsville West) Ltd. provided to the City of Ottawa the prescribed information and materials required in support of its Official Plan Amendment application seeking to expand the urban boundary to include the lands municipally known as 5971 Flewellyn Road, 1770 Shea Road and 1820 Shea Road, in the community of Sittsville, and the Application was and shall be deemed complete as of October 8, 2024.

124The Tribunal orders that the Mattamy Motion is granted, and, as of November 29, 2024, 2436091 Ontario Ltd. provided to the City of Ottawa the prescribed information and materials required in support of its Official Plan Amendment application seeking to expand the urban boundary to include the lands municipally known as 4497A and 4497B O’Keefe Court, in the City of Ottawa, and the Application was and shall be deemed complete as of November 29, 2024.

“N. Eisazadeh”

N. EISAZADEH 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.