Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 08, 2026

CASE NO(S).: OLT-25-000586

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Deb Oldfield

Subject: By-law No. 82-2025

Description: To permit a number of City-initiated amendments to Zoning By-law 60-94

Reference Number: 12-12-5055

Property Address: City-wide

Municipality/UT: Oshawa/Durham

OLT Case No.: OLT-25-000586

OLT Lead Case No.: OLT-25-000586

OLT Case Name: Oldfield v. Oshawa (City)

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

Request by: The City of Oshawa

Request for: Request for Dismissal Without a Hearing

Heard: November 27, 2025 by video hearing

APPEARANCES:

Parties

Counsel

Deb Oldfield ("Applicant/Appellant")

Ian Flett (Co-counsel) Anu Bakshi (Co-counsel)

City of Oshawa ("City")

Alan Heisey

DECISION DELIVERED BY L.P. YOU AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Case Management Conference ("CMC") was originally scheduled respecting an appeal by Deb Oldfield ("Applicant/Appellant") against the City under s. 34(19) of the Planning Act, R. S. O. 1990, c. P. 13, as amended ("Act"), regarding the City-wide amendments to the City’s Zoning By-law 60-94 ("City ZBL") initiated by the City.

2The City filed a Motion to dismiss the appeal ("Motion"). Prior to the Hearing, the parties exchanged the materials for the Motion. At the request of the parties, the Tribunal converted this Hearing to discuss the City’s Motion and to address the matters related to CMC should the Motion be granted.

3To ensure the productivity of the Hearing, the Tribunal determined to address the CMC related matters before hearing the Motion with the consent from the parties.

Service of Notice of hearing

4There is no issue with service of the Notice of this CMC.

Requests for PATICIPANT Status

5Subject to the Tribunal’s decision on the City’s Motion, the following individuals and organizations requested and were granted Participant status with consent from Parties:

• Brain Injury Association of Durham Region, represented by Heather Desta;

• YWCA Durham, represented by Sarah Kimsey or Deb Mattson;

• Durham Community Legal Clinic, represented by Eilleen Liu (Csl);

Paul Dobbs;

• HALCO & HIV Legal Network, represented by Rodney Kort (Csl);

• John Howard Society Durham, represented by Paul Dobbs;

• Vicki Gelias represented by Anu Bakshi and Robin Nobleman (Csl);

• Harry Danker represented by Anu Bakshi and Robin Nobleman (Csl); and,

• Euphemia Thomas represented by Anu Bakshi and Robin Nobleman (Csl).

MOTION

6The City’s Notice of Motion requested the following:

1. An Order that the provisions of the City’s Zoning By-law Amendment 82-2025 ("City ZBA") concerning a "social service establishment" do not apply to the property owned by the Appellant at the lands municipally known as 302 Kingsdale Avenue ("Subject Lands");

2. An Order to dismiss the Appellant’s Appeal under s. 34(25) of the Act;

MATERIALS

7The materials before the Tribunal on the Motion are:

1. Affidavit of Service of Shelby, Notice of Casement Conference marked as "Exhibit 1";

2. City’s Notice of Motion to Dismiss marked as "Exhibit 2";

3. Appellant’s Notice of Response to the City’s Motion marked as "Exhibit 3", respectively;

4. Affidavit of Service of David Sappelton marked as "Exhibit 4"; and,

5. City’s Reply to the Appellant’s Response to the Motion marked as "Exhibit 5".

FINDINGS AND DIRECTIONS

8Both Parties confirmed that the Appellant is the registered owner of the Subject Lands and cited s. 34(19)2.2 that the Appellant had to meet the criteria in this section to have the right to appeal to the Tribunal.

34(19)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.

9Mr. Flett stated that the key dispute of this Motion is to interpret the phrase: "land to which the by-law would apply" and the Appeal does have reasonable prospect of success. In addition, he indicated that the Act gives the power to the City to regulate the use of buildings with only two options for geographic scope pursuant to s. 34(1)2 of the Act: "within the municipality", which means city-wide, or "within any defined area or areas", which reads as a smaller, mapped area that the by-law identifies.

34(1) Zoning by-laws may be passed by the councils of local municipalities: Restricting, ercting, locating or using of buildings

2. For prohibiting the erecting, locating or using of buildings or structures for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or upon land abutting on any defined highway or part of a highway.

10The City’s Counsel, Mr. Heisey, stated that the Subject Lands are designated Residential in the City’s Official Plan ("City OP") and are zoned R2(Residential) in the City ZBL and the permitted use of R2 Zone excluded Social Service Establishments. Further, Mr. Heisey indicated that the City ZBA did not make changes to the permitted uses nor to any performance standards for the R2 Zoning category.

11The Moving party referred to the sworn affidavit of the City’s Planner, Mr. Sappleton including the implementation of the policy 2.3.1.2 of the City OP and the provisions of the City ZBL.

policy 2.3.1.2 of the City OP

Areas designated as Residential on Schedule "A" of this Plan shall be predominantly used for residential dwellings. In addition, subject to the relevant policies of this Plan and the inclusion of appropriate provisions in the zoning by-law, other land uses may be permitted in areas designated as Residential as follows: community uses such as schools, places of worship, nursing homes, homes for the aged, day care centres and libraries, that by nature of their activity, scale and design, are compatible with residential uses; community gardens, allotment gardens, parks, open space and recreational uses having a community or neighbourhood level service area; Convenience Commercial Centres; limited office, retail and personal service uses; convenience stores; home occupation uses; bed and breakfast establishments and group homes.

City ZBL Section 7: R2 Residential Zones 7.1 Permitted Uses

7.1.1 No person shall within any R2 Zone use any land or erect or use any building or structure for any purpose or use other than the uses listed below:

(a) Single-detached dwelling

(b) Semi-detached building

(c) Seme-detached dwelling

(d) Duplex

7.2 Regulations

7.2.1 No person shall within any R2 Zone use any land or erect or use any building or structure except in compliance with the regulations as set out in Table 7.2 and this Subsection.

12Mr. Sappleton stated that the R2 Zone did not permit "Social Service Establishment" as defined in the City ZBL

S.16.4.3 of the City ZBL

Social Service Establishment" means a building or part of a building used by a "registered charity" as defined in ss.248(1) of the Income Tax Act. R.S.C.1985,c.1(5th Supp), as amended, or by a corporation that is a non-profit organization for the purposes of paragraph 57(1)(b) of the Corporations Tax Act, R.S.o. 1990,c.C.40…

13Further, in Mr. Sappleton’s Affidavit attached to the City’s Notice of Motion, he specified the following changes to the City ZBL affecting the "Social Service Establishment":

1. S. 12 amends ss.5.17 of the ZBL to add "Social Service Establishment" to uses listed.

2. S. 13 amends Article 5.17 by adding "Social Service Establishment" after "Vapour Product Shop", deleting the 150meter ("m") separation distance and 400m separation distance for uses outlined in Article 5.17.1, and implements a restriction on multiple social service establishments being located on the same lot, so that it read as follows:

5.17.1 Notwithstanding any provision of this By-law to the contrary, no payday loan establishment, tattoo parlour, pawn shop, vapour product shop, social service establishment or adult use store situated on a lot shall:

(a) Be located closer than 800m to another lot occupied by the same use, as measured along a line connecting the two closest points of the respective lots; and,

(b) Be located on the same lot already lawfully occupied by the same use."

3. S.18 adds a new Article 5.17.4 which reads as follows:

5.17.4 Notwithstanding Article 5.17.1 of this By-law to the contrary, for the purpose of establishing a social service establishment that is approved and/or operated by the Province of Ontario or a provincial agency, there shall be no minimum separation distance requirement relative to another social service establishment. For Clarity, the establishment of a social service establishment that is not approved and/or operated by the Province of Ontario or a provincial agency shall be subject to the minimum separation distance requirement to a social service establishment that is approved and/or operated by the Province of Ontario or a provincial agency.

14In addition, Mr. Sappleton indicated that the definition of "Social Service Establishment" remained same in the City ZBL since it was introduced in 2008 and the City ZBA did not make changes to permissions for a "Social Service Establishment". He further stated that the major change to the City ZBL in relation to Social Service Establishment is to create a minimum separation distance between "Social Service Establishment" uses of 800 metres ("m") City-wide.

15In conclusion, Mr. Sappleton opined that the Subject Lands are not affected by the City ZBA and supported the Motion brought by the City to dismiss the Appeal.

16Mr. Heisey added that the Appellant’s Notice of Appeal and Grounds for Appeal did not provide any explanation how the City ZBA would impact the Subject Lands.

17Mr. Heisey further confirmed that there were no active planning applications to permit a non-residential use or to permit a Social Service Establishment on the Subject Lands at the time of the Appeal filed by the Appellant and therefore, no applications would be affected by the City ZBA.

18In conclusion, Mr. Heisey maintained the position that the City ZBA did not apply to nor would affect the Subject Lands in align with Mr. Sappleton’s opinion. Finally, he requested the Tribunal to dismiss the Appeal with respect to the Rules 15.4 c and 15.4(d) of Tribunal’s Rules of Practice and Procedure ("Tribunal Rules") and s.19(1)c of the Ontario Land Tribunal Act.

Rule 15.4 Dismissal of Proceeding without a Hearing The Tribunal may, on the motion of any party or on its own initiatives, dismiss a proceeding without a hearing: … c. if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;

d. in any circumstance listed in subsection 4.6(1) of the SPPA, including where:

i. the initiating matter is frivolous, vexatious or is commenced in bad faith;

ii. the initiating matter deals with matters that are outside the jurisdiction of the Tribunal; or

iii. some aspect of the statutory requirements for bringing the proceeding has not been met; or

… Ontario Land Tribunal Act ("OLTA")

Dismissal

19 (1) Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing, … (c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success; …

19Mr. Flett disagreed with Mr. Heisey and opined that the Appeal had proper grounds. Mr. Flett further stated that the Appeal had to satisfy the dismissal tools as listed in Rule 15.4 of the Tribunal Rules and SPPA s. 4.6:

• The appeal is frivolous, vexatious, mad in bad faith; or

• Is outside jurisdiction; or

• Has no reasonable prospect of success.

20In Mr. Flett’s opinion, the City ZBA does not add "Social Service Establishment" as a site-specific permitted use in any schedules in the by-law but inserts the new Social Service Establishment regime into s. 5 of the City ZBL, which is a general provisions section to govern all lands in the City area unless there is expressing limiting language.

21In addition, Mr. Flett indicated that the City Council chose to draft the ZBA to enact a municipality-wide prohibition on how buildings may be used where certain Social Service Establishment activities occur. Further, he indicated that other uses in the list in s. 5.17 all are defined and appear in specific zone categories, however, Social Service Establishment is not assigned Zone Category.

22Mr. Flett also argued that Mr. Sappleton’s list of permitted uses for R2 Zone was incomplete as this Zone allows home occupations as a secondary use, but the home occupation provisions do not exclude counselling or similar services.

23Mr. Flett stated that a social worker is employed by a registered charity and provides counselling services to clients in principal residence in R2 Zone and the 800 m separation distance under the provisions of s. 5.17 of the City ZBA would be triggered.

24Therefore, Mr. Flett maintained the position that the City ZBA does apply to the Subject Lands, as such, the Appellant meets the pre-condition to appeal pursuant to 34(19)2.2 of the Act as the Appellant falls within the category listed in this section amended by Bill 185.

25In Mr. Sappleton’s opinion in the Affidavit attached to the City’s reply to the Appellant’s response to the Motion, he stated that any general provision in a zoning by-law only applies to any given parcel of land if the land use or zone category is governed by the general provision and shared a few examples to how to review and interpret provisions in the City ZBL. One of the examples cited ss. 5.3 titled "Home Occupations", which regulates home occupations. Article 5.3.1 is as follows:

[a] home occupation is a permitted use in all the zones that permit dwelling units and in existing dwelling units in any FD or EU Zone, subject to the provisions of this subsection.

26In Mr. Sappleton’s opinion, a general provision that applies to specific zones or uses does not apply to unrelated uses or zones. Accordingly, Mr. Sappleton expressed his conclusion that regulations related to Social Service Establishments in the City ZBL and ZBA do not apply to the Subject Lands.

27Counsel for the City presented the definition of "Home Occupation" under s. 2 of the City ZBL below:

Home Occupation" means an occupation or business conducted for gain or profit within a dwelling unit by any resident of that dwelling unit, excluding the following occupations or businesses: kennels or other animal services, automobile repair garage or automobile body shop or paint shop, medical offices with the exception of massage therapy, restaurants (not including the food catering and food preparation), taxi services, bed and breakfast establishments and newspaper or catalogue distribution centres.

28Mr. Heisey further argued that an individual employed by a registered charity would gain or get paid for this individual’s services, including counseling services, however, a Social Service Establishment, as defined in the City ZBL, is being conducted as a registered charity or as a non-profit organization. Mr. Heisey referenced to the interpretation of Mr. Sabounji on how to define an organization as a registered charity in his Affidavit. Therefore, Mr. Heisey opined that the individual’s home occupation activities, including counselling services, did not meet the definition of Social Service Establishment in the City ZBL and the ZBA.

29Mr. Flett argued that Mr. Sabounji’s Affidavit was dated before the Appellant’s response to the City’s Motion and requested the Tribunal to strike Mr. Sabounji’s review.

30The Tribunal recognizes that the Appellant did not submit its own expert’s review of the Income Tax Act and Corporation Tax Act to the Tribunal on the matter before the Tribunal. In the Tribunal’s opinion, the overall analysis of Mr. Sabounji regarding the review of the Income Tax Act and Corporation Tax Act for a registered charity is acceptable despite the predating issue and will assist the Tribunal in determining how to define a registered charity and non-profit organization. The Tribunal has given appropriate weigh to Mr. Sabounji’s opinion while making the decision.

31Mr. Heisey stated that a registered charity cannot have a principal residence based on Mr. Sabounji’s evidence. In conclusion, Mr. Heisey positioned that a Social Service Establishment cannot be a Home Occupation based on the definitions in the City ZBL and ZBA.

32In the City’s reply to the Appellant’s response to the Motion, Mr. Heisey stated that a Public Authority carrying on the same activities as outlined in s.16.4.3(a)-(e) is not a Social Service Establishment carrying on those activities and the definition of a "Public Authority" in the City ZBL and ZBA is as follows:

Public Authority" means the Government of Canada, the Government of Ontario and municipal corporations, as well as any department or board established thereby, including Hydro One Inc. (except with respect to Hydro One Inc. transformer stations that transform power down to 44kv), the Oshawa Power and Utilities Corporation and its subsidiaries, any Crown Agency and any college, university or other post secondary institution created by the Province of Ontario but not including any type of group home or any School Board created by the Province of Ontario.

33Mr. Heisey cited Mr. Sabounji’s analysis and reached a conclusion that a Public Authority defined in the City ZBL is neither a "registered charity" as defined in the Income Tax Act or a non-profit organization with pursuant to the Corporations Tax Act. Therefore, Mr. Heisey concluded that the 800 m separation distance between Social Service Establishment uses would not apply and would not impact a Social Service Establishment establishing itself within 800 m of the Public Authority facility and would not affect the R2 or any other Zone.

34Lastly, Mr. Heisey repeated his position in Para.[17] that the Subject Lands are completely unaffected by the provisions of the ZBA and requested the Tribunal to allow the Motion as the Appellant failed to meet the statutory precondition of the right to appeal pursuant to the ss. 34(19)2.2. of the Act.

FINDINGS/CONCLUSION

35Bill 185 modified the Act by amending the rights under ss. 17(24), 17(36) and 34(19) of the Act, which 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 Para.[3]2) 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

(e) the Minister.

36The rights of the Prospective Appellant here to maintain his/her/their appeal is governed by the provisions of ss.19(1)(e) of the OLTA and Rules 5.6 and 15.1 of the Tribunal Rules as it is the Tribunal’s responsibility to determine whether an appeal has been commenced in compliance with the any statutory requirements. Also, the Tribunal recognizes that the intent of Bill 185 was enacted by the Province Government to limit the appellate rights in proceedings under the Act.

37After thorough examination of the materials and oral opinions from both parties, the Tribunal finds that R2 Zone allows home occupation but excludes counselling services in the list of permitted uses. In Tribunal’s opinion, Mr. Sabounji’s understanding of Income Tax Act and Corporation Tax Act are appropriate and assist the Tribunal to resolve the dispute on the definition of a registered charity and non-profit organization further to determine whether an individual employed by such organization can be considered a Social Service Establishment use on the Subject Lands. In conclusion, the Tribunal favors the City’s evidence.

ORDER

38UPON MOTION to the Tribunal brought by the City of Oshawa for directions and after the hearing of the Motion, THE TRIBUNAL ORDERS That:

1. The provisions of Zoning By-law 82-2025 concerning a "Social Service Establishment" do not apply to the property owned by the Appellant at 302 Kingsdale Avenue, in the City of Oshawa, as required by section 34(19)2.2 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.

2. 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 appeal filed by Deb Oldfield with respect to Zoning By-law Amendment No. 82-2025, approved by the City of Oshawa.

3. There shall be no order for another Case Management Conference with directions on Draft Procedure Order with an Issue List.

"L.P. You"

L.P. You

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.