Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE:

February 20, 2026

CASE NO(S).:

OLT-23-001173

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

Appellant:

Domtech Inc.

Subject:

By-law No. 23-148

Description:

To permit the redevelopment of the site by converting the existing commercial buildings into 15 townhouse dwelling units

Reference Number:

D09/M11/23 & By-Law 23-148

Property Address:

40 Frankford Crescent (Part of 3, 4, and 5, Plan 219; City of Trenton; County of Hastings)

Municipality/UT:

Quinte West/Hastings

OLT Case No.:

OLT-23-001173

OLT Lead Case No.:

OLT-23-001173

OLT Case Name:

Domtech Inc. V. Quinte West (City)

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Domtech Inc.

Applicant:

1126501 Ontario O/A Voskamp Enterprises

Subject:

Proposed Official Plan Amendment

Description:

To permit residential uses on the subject property by allowing the existing commercial building to be converted to 15 residential townhouse dwelling units

Reference Number:

D09/M10/23

Property Address:

40 Frankford Crescent

Municipality/UT:

Quinte West/Hastings

OLT Case No.:

OLT-23-001078

OLT Lead Case No.:

OLT-23-001173

OLT Case Name:

Domtech Inc v. City of Quinte West

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

Request by:

Domtech Inc.

Request for:

Request for Directions

Heard:

August 20, 2024, original motion by video hearing; June 24, 2025, request from Tribunal for supplementary submissions; July 12, 2025, correspondence from Domtech Inc. on timetable for submissions; August 6, 2025, receipt of Affidavit of Jagdeep Singh sworn August 6, 2025; August 21, 2025, receipt of Affidavit of Kelly Weste for the City of Quinte West, sworn August 21, 2025; October 31, 2025, response to request from Tribunal’s request for response;

November 3 and 11, 2025, Tribunal’s request for response; December 02, 2025, response from Domtech Inc. to Tribunal email correspondence dated November 10, 2025; January 7, 2026, status conference held; January 16, 2026, further written submissions completed; January 21, 2026, further written submissions completed

APPEARANCES:

Parties

Counsel

Domtech Inc. (“Appellant”/“Domtech”)

Mark Pedersen

City of Quinte West (“City”)

John Ewart

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

Link to Order

INTRODUCTION

1The history of this matter was set out in the previous Decision of the Tribunal issued May 2, 2024 and need not be reiterated here. A further Decision was issued on January 15, 2025, with respect to a separate motion. The current motion is brought by the City seeking an Order dismissing the appeal by Domtech Inc. to By-law No. 23-140 (“Motion”) being an Official Plan Amendment, File D09/M10/23 (“Current OPA”), passed by the City of Quinte West on October 4, 2023, to permit the re-development of property municipally known as 40 Frankford Crescent ("Subject Property").

2On November 1, 2023, the City passed a Zoning By-law Amendment to Zoning By-law No. 23-148 (“ZBA”) pursuant to the provisions of section 34 of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”). It is undisputed that Domtech filed a valid appeal of the ZBA on November 11, 2023.

3The Motion concerns the key question as to whether Domtech’s appeal of the Current OPA, also filed on November 11, 2023, is invalid because, as contended by the City, Domtech has not met the requirement set out in subsection 17(36) of the Act due to its alleged failure to provide oral or written comments to the City prior to the passage of the Current OPA.

4Domtech argues, inter alia, that it has met the subsection 17(36) requirements since it made substantially similar submissions in opposition to a much earlier, but substantially similar, OPA proposal for the Subject Property (“Earlier OPA”). The Earlier OPA was sought by the same owner regarding the Subject Property for the same purposes as the Current OPA (to permit residential development). Thus, Domtech argues that its clear written opposition to the Earlier OPA – still on record with the City – ought to be construed by this Tribunal to have met the subsection 17(36) requirements. However, Domtech’s submissions regarding the Earlier OPA were made in February 1996 (“1996 Letter”). Unsurprisingly, the City disagrees that the requirements in subsection 17(36) of the Act have been satisfied by Domtech by reason of the 1996 Letter.

5The materials filed for the Motion were:

(a) Motion Record of the City, comprising 93 pages;

(b) Factum of the City, comprising nine pages;

(c) Book of Authorities of the City, comprising 75 pages;

(d) Notice of Response of Domtech, comprising two pages;

(e) Factum of Domtech, comprising 15 pages;

(f) Book of Authorities of Domtech, comprising 62 pages;

(g) Affidavit of Jagdeep Singh for Domtech, comprising eight pages;

(h) Affidavit of Kelly Weste for the City, comprising three pages;

(i) Document Brief of Domtech, comprising 13 pages;

(j) Various Documents and Emails, comprising 102 pages;

(k) ‘Appeal Package’ from the City, comprising 150 pages;

(l) Supplementary Factum of Domtech, dated January 16, 2026, comprising nine pages; and

(m) Supplementary Factum of the City, dated January 20, 2026, comprising five pages.

6On three occasions the Tribunal sought supplementary submissions from the Parties’ counsel in respect of their Motion materials. The first request was made on June 24, 2025, as follows (below emphasis added):

The Tribunal invites the Parties to provide supplementary submissions on the following matters:

1 Does the City dispute the factual allegations (as emphasized below) made in the following paragraph from the Respondent’s Factum?:

…The facts in our case are clearly distinguishable. In our case, prior submissions were made respecting the same property as presently in issue, owned by the same Applicant (Voskamp Enterprises), and raised the same concerns are raised in the instant OPA Appeal (conflict of residential uses with existing industrial uses), a clear distinction from the circumstances in North Kawartha.

2 If so, does Domtech have any further response?

3 Are there any facts available – by affidavit – to explain why Domtech apparently did not make specific submissions pertaining to the OPA at issue in this proceeding (i.e. leaving aside the 1995 and 1996 correspondence referred to in the Respondent’s Factum)?

4 Does the City in fact take the position described in the following paragraph from the Respondent’s Factum?:

…The City may contend that, despite the letter of February 22, 1996 being sent, it did not come to the attention of the present iteration of City Council and thus the object of the 'prior submission' obligations imposed by the Act were not satisfied- such object being to permit Council an opportunity to appreciate and consider third-party concerns with an Application before determining whether to approve or deny it.

5 Are there any actual facts available – by supplementary affidavit – pertaining to the arguments made in the following paragraph from the Respondent’s Factum:

… In view of the prior, Domtech submits that the Tribunal ought not and need not conclude that the February 22, 1996 letter not being placed before the present iteration of City Council negates the quality of such letter as a prior submission within the meaning of the Act; rather, as articulated in Zantingh, it is open to the Tribunal to regard the omission of such letter from Council's Agenda package as being a consequence of City staff's discretionary exercise, over which Domtech has no control, and upon which Domtech's Appeal standing should not be prejudiced.

6 Does the City have any response to the arguments made in the following paragraphs from the Respondent’s Factum:

…Further, to the extent the Tribunal is inclined to accept (from Mattamy) that the justification for the obligation to engage at the municipal level is to bring about efficiency, the conclusion therefore following is not dismissal of Domtech's OPA Appeal.

…Rather, dismissal of Domtech's OPA Appeal will not end the adjudicative process respecting the herein development proposal, as there already exists a valid ZBLA Appeal. It is, Domtech submits, uncontentious that its OPA Appeal (if valid) and the ZBLA Appeal would be heard together, informed by overlapping evidence and submissions; therefore, dismissal of Domtech's OPA Appeal would not lend itself to any temporal efficiency, which is the motivating factor underlying the prior submission requirement (according to Mattamy).

7The Parties initially agreed on a timetable for delivery of their submissions on the points noted in paragraph [6] above, ending on October 3, 2025. However, beyond the affidavits and documents referenced above at subparagraphs 4, (h), (j), (k), (l), and (m) no substantive submissions were received.

8The Tribunal then sent further requests for response on October 31, 2025, and after receiving brief answers from counsel for the Parties, made a further request, as follows, on November 3 and November 11, 2025 (below emphasis added):

Upon reviewing all material filed in connection with the Motion, the Tribunal notes that it received 2 large files from the City which are apparently not referenced in any affidavit filed on the Motion, (to the knowledge of the Tribunal). One is described as “all relevant documents, notes, and correspondence received by the municipality pertaining to submissions or objections made by the Appellant/agent regarding the Official Plan and Zoning By-law Amendments” and the other is entitled “40 Frankford Crescent disclosure record”. Both appear to have been delivered long after the original Motion Record and Factums and the Responding Record and Factums. Together they comprise more than 200 pages.

The Tribunal requires: (1) either an agreed statement of facts concerning what these documents are and how/when they were obtained and disclosed or will need an affidavit attesting to that information. The Tribunal would also appreciate receiving: (2) submissions from both Parties as to what, if any, relevance any of the documents in these files have insofar as the Motion is concerned. The Parties should confer on these matters to deliver an organized response rather than to individually correspond with the Tribunal as an exchange of correspondence may result in a lack of clarity for the Tribunal as it prepares a ruling on the Motion.

In the Tribunal’s view, it is unable to make any determinations with respect to these documents without points (1) and (2) being properly addressed.

As a final matter, the Tribunal would still benefit from receiving clear responses to the points raised in its June 24, 2025 email, however brief they may be. Silence from both Parties does not assist the Tribunal

9The Tribunal then received various correspondence from only Domtech’s counsel on December 2, 2025 in response to its supplementary requests. Oddly, the Tribunal never received any written response from counsel for the City to any of its requests described above, other than a single correspondence on October 31, 2025 stating that it would ‘make no further submissions’. As a result, the Tribunal convened a status conference, held by teleconference on January 7, 2026 (“Status Telecon”), to ascertain whether the City intended to respond to the Tribunal’s many enquiries and requests. At that Status Telecon, counsel for the City apologized on behalf of his client for the lack of previous responses but confirmed that he had no further submissions to make, either orally or in writing.

10Certainly, the City was free to decide that it did not wish to make any supplementary submissions to address the Tribunal’s questions and requests. However, the practical result of that decision is that the Tribunal is left without the answers it sought and also without the benefit of any Reply submission by the City to Domtech’s arguments in its responding motion record or its original Factum. Very recently, the City did deliver a Supplementary Factum, dated January 20, 2026, but it responded solely to Domtech’s Supplementary Factum, dated January 16, 2026 – not to the Tribunal’s many previous requests as detailed above.

11In the absence of the City’s response to the Tribunal’s questions described above in paragraphs [6] and [8], the Tribunal is unable to discern what, if any, relevance the large group of documents described above in paragraph 4 and (k) (“Additional City Documents”) delivered by the City may have to the matters at issue on this Motion. Domtech has taken the position that the Additional City Documents are both irrelevant and also not properly before this Tribunal pursuant to a sworn affidavit or otherwise. The City had no submissions to offer in response to that argument and the Tribunal agrees that those materials are not properly before it as admissible evidence and must be disregarded. During the Status Telecon, the Tribunal specifically advised the City’s counsel of the strong likelihood that it would reach this conclusion in the absence of some compelling, contrary submission from the City. However, the City’s counsel confirmed that he had no submission to make on that matter and remarked that he ‘did not disagree with’ the position taken by Domtech’s counsel concerning the inadmissibility of the Additional City Documents.

ISSUES ANALYSIS AND FINDINGS

12As noted, the City argues that Domtech’s right of appeal on the OPA has been lost due to its failure to comply with subsection 17(36) of the Act. It argues that the Tribunal has no discretion to relieve Domtech of the impact of having not made any oral or written submissions to the City prior to adoption of the OPA. While Domtech agrees that the Tribunal has no such discretion, it instead argues that it has in fact met the requirements of subsection 17(36). (The Parties agree that the law concerning ‘motions to dismiss without a hearing’ does not govern this Motion, and the Tribunal concurs).

13As foreshadowed above, Domtech makes one main and unique argument in opposition: it contends that there is no temporal element that can be implied in subsection 17(36) of the Act. Thus, it argues that the 1996 Letter satisfies the requirement in that provision. Thus, Domtech argues that the basic policy rationale underlying subsection 17(36) – termed by the City in its Factum as the ‘speak early’ obligation – has been met in the circumstances of this case, notwithstanding the passage of more than 26 years since that 1996 Letter. Counsel for Domtech contends that the language of subsection 17(36) is ambiguous and does not clearly support the City’s position – and that the ambiguity must be resolved in favour of Domtech under the applicable jurisprudence.

1. Does subsection 17(36) of the Act include a temporal element by necessary implication?

14The City, in its Factum, argues that the sole question is whether Domtech made oral or written submissions to the City’s Council prior to the enactment of the Current OPA, as required by subsection 17(36) of the Act. The City argues that because no such oral or written submissions were made by Domtech concerning the Current OPA until Domtech filed its appeal of the Current OPA on November 11, 2023, the Current OPA appeal is precluded. In its Factum, the City did not squarely address the relevance, of the 1996 Letter from Domtech, beyond its position as described in paragraph [19] below. On the other hand, the Tribunal must assume that the City is advocating that subsection 17(36) of the Act does contain a temporal requirement to the effect that any opposing oral or written submissions must be made contemporaneously – i.e. after the City gave notice of the Current OPA and before it was enacted.

15It is undisputed that no oral or written submissions were made by Domtech, specifically regarding By-law No. 23-140, which enacted the Current OPA on October 5, 2023. Public notice of this Current OPA was given by the City on June 29, 2023 and Domtech concedes that it made no oral or written submissions at that time or at any point prior to October 5, 2023, specifically regarding that proposed instrument. However, it contends that the 1996 Letter pertained to the same Subject Property, owned by the same entity, and concerning the Earlier OPA which also sought to designate those lands for residential use (that Earlier OPA was actually denied by the City in 1996).

16The pertinent statutory provisions are subsections 17(35), 17(35.1), 17(35.2), and 17(36) of the Act, which states (below emphasis added):

Notice

(35) If the approval authority makes a decision under subsection (34), it shall ensure that written notice of its decision is given in the prescribed manner to,

(a) the council or planning board that adopted the plan;

(b)each person or public body that made a written request to be notified of the decision;

(c)each municipality or planning board to which the plan would apply if approved; and

(d)any other person or public body that is prescribed. 2015, c. 26, s. 18 (11).

Contents

(35.1) The notice under subsection (35) shall contain,

(a) a brief explanation of the effect, if any, that the written submissions mentioned in subsection (35.2) had on the decision; and

(b) any other information that is prescribed. 2015, c. 26, s. 18 (11).

Written submissions

(35.2) Clause (35.1) (a) applies to any written submissions relating to the plan that were made to the approval authority before its decision. 2015, c. 26, s. 18 (11).

Appeal to Tribunal

(36) Any of the following may, not later than 20 days after the day that the giving of notice under subsection (35) is completed, appeal all or part of the decision of the approval authority to the Tribunal by filing a notice of appeal with the approval authority:

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

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

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

2. The Minister.

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

17As a result of the Tribunal’s previous Decision issued January 15, 2025, Domtech is construed to be a ‘specified person’. Therefore, the only issue on this Motion is whether it “…made…written submissions to the council…” prior to the adoption of the Current OPA, as is argued by the City (Domtech admits that it made no oral submissions).

18The City relies on the statutory wording noted above and states that this is an ‘absolute’ rule since no discretion is contained in the relevant provision. It further argues that there is no discretion afforded to this Tribunal (since certain 2006 amendments to the Act) to relieve against this rule and relies on the following jurisprudence to support its position: Angus Glen North West Inc., Re, 2011 CarswellOnt 12479, [2011] O.M.B.D. No. 861.; Ryan Humberstone v. Halton Hills (Town), OMB Case No. PLI 71097, OMB File No. PLI 71098, Decision of S. Tousaw and Order of the Tribunal, Issue Date: December 14, 2017, 2017 CanLII 85736 (ON LPAT); Mattamy Realty Limited, Re, 2012 CarswellOnt 5167, 72 O.M.B.R. 75, OMB Case/File No. PLI00041 (“Mattamy”); Liddy v. City of Vaughan, 2015 ONSC 5939 (“Liddy”); North Kawartha (Township) By-law No. 95-13, Re, 2014 CarswellOnt 924 (OMB) (“North Kawartha”); The Old Marham Village Ratepayers Inc. v. Markham (City), OMB Case/File No. PL180100, OMB File No. PL180101/PLJ08102, 2018 CanLII 96157 (ON LPAT); and 1884901 Alberta Ltd. v. Park2Sky Inc. et al., 2020 ONSC 259.

19The City also contends – without citing jurisprudential support or addressing the 1996 Letter – that “past submissions to previous Official Plan Amendment applications are of no assistance to an Appellant”. Finally, it argues that the submissions must be made in respect of the Current OPA or otherwise the ‘speak early’ obligation makes no sense.

20As already noted, Domtech agrees that the rule, as expressed in subsection 17(36) of the Act, is ‘absolute’ and that this Tribunal has no discretion to relieve against its non-compliance. However, Domtech’s counsel argues two further points. First, he argues that nowhere in the statutory language is there any suggestion of a time or date ‘deadline’ within which an oral or written submission must be made. The provision only states “before the plan was adopted”. Counsel for Domtech also maintains that this language must be strictly construed because it serves to eliminate an appeal right that would otherwise exist (below emphasis added):

The Supreme Court of Canada has held…[in Berardinelli v. Ontario Housing Corp., 1978 CanLII 42 (SCC), [1979] 1 S.C.R. 275] …as a matter of statutory interpretation, that… a restrictive provision wherein the rights of action of the citizen are necessarily circumscribed by its terms, attracts a strict interpretation and any ambiguity found upon the application of the proper principles of statutory interpretation should be resolved in favour of the person whose right of action is being truncated

21Domtech’s counsel further argues that not only is there no ‘temporal window’ explicitly set out in subsection 17(36) of the Act but also that there is no specific requirement that Domtech’s written submission must have been made in respect of the specific OPA related to the appeal, or as to at what specific public meeting, or to which iteration of the City’s Council, such a written submission must be made. In fact, Domtech’s counsel argues that there is nothing at all in subsection 17(36) that describes precisely ‘to whom’ the submission must be made. These comprise the claimed ambiguities in subsection 17(36) of the Act. For the reasons discussed below, the Tribunal agrees that this statutory provision is unnecessarily ambiguous and that it does not clearly include a temporal requirement, nor does it unequivocally address the points described above in this paragraph.

22Domtech’s counsel maintains that the cases relied on by the City, noted in paragraph [18] above, do not actually stand for the propositions of law claimed by the City. Domtech’s counsel points out that the standard of reasonableness – not correctness – was applied during the Divisional Court’s review in Liddy of the Tribunal’s predecessor’s ruling and that therefore all that can be fairly stated about that ruling is that the Divisional Court simply found the finding of the Ontario Municipal Board (“OMB”) in that case was ‘reasonable’. The Tribunal agrees.

23Justice Corbett, for the Divisional Court in Liddy, stated as follows (below emphasis added):

[the OMB]…found, in effect, that s.34(19) 2 requires participation whether orally or in writing in a meeting at which the by-law, itself was considered by council. In my view, this conclusion is manifestly reasonable. It is consistent with five prior OMB decisions: Re Loblaw Properties (2011), 68 OMBR 473, Re North Kawartha Township, 2014 Carswell Ont. 9243, Re Mubnur Township By-law No. 50-13 (2014), 81 OMBR 340, Re Mattamy Realty Ltd. (2012), 72 OMBR 75, Re Ontario (Minister of Municipal Affairs and Housing, [2011] OMBD 778. It reflects the purpose of the standing requirement, which is to ensure that matters are decided at first instance by City Council and it makes it more practical for the City to know and give personal notice to all persons with standing to bring an appeal. As is reflected in the cases and in the history of the case at bar, the planning process for a large project, such as a public hospital affords members of the public many opportunities and ways to make their views known. Only addressing City Council orally or in writing in respect of the by- law itself however, will give someone legal standing for an appeal of the by-law under s.34(19) 2…The standing provisions in s.19(34) 2 should be seen as a liberalization of ordinary standing principles tailored to the unique context of planning law. It was reasonable for the Board to interpret this liberalized provision as it did…

24Counsel for Domtech maintains that the language employed by Justice Corbett in Liddy, as reproduced in paragraph [23] above, should be interpreted as follows (below emphasis added):

Reasonableness review is less exacting than correctness review, and affords, inherently, latitude to the administrative decision maker in rendering his or her decision. As such, in finding that an administrative decision was "reasonable", the Court is not articulating, with exactitude, what the law is; rather, it is simply saying that a particular conclusion drawn by a decision-maker, in a particular case, was within the scope of conclusions capable of being reasonably drawn. Importantly, the Court's conclusion that an administrative decision was reasonable does not imply that such conclusion was the only conclusion capable of being properly drawn; if this were the case, the standard of review would be, necessarily, morphed into correctness.

25Domtech argues that North Kawartha is distinguishable from the circumstances here because in North Kawartha the unsuccessful appellant had merely expressed generalized concerns about shoreline development. This is quite unlike the situation here where Domtech made submissions directly concerning the Earlier OPA – which like the Current OPA would have granted the same residential development permission on the same land parcel owned by the same entity. The Tribunal agrees that the facts in North Kawartha are distinguishable on that basis. Of course, the OMB’s Decision in North Kawartha is not binding on this Tribunal in any event.

26Domtech’s counsel further maintains that the ruling in Mattamy can also be distinguished since the circumstances of the current proceeding are quite different. In Mattamy, the unsuccessful appellant tried to argue that settlement minutes signed with the approval authority to resolve one planning dispute ought to constitute submissions for the purpose of rendering valid a subsequent new appeal when no other actual written or oral submissions were made. Again, the Tribunal agrees with Domtech’s argument here and makes the same observation as made above regarding North Kawartha.

2. Could the 1996 Letter regarding the Earlier OPA be considered to satisfy the subsection 17(36) requirements?

27Domtech argues that the 1996 Letter sent regarding the Earlier OPA that would also have permitted the same residential uses on the Subject Property permitted by the Current OPA should be construed to constitute a prior written submission within the meaning of subsection 17(36) of the Act – regardless of whether it came to the attention of the current City Council prior to the OPA adoption in October 2023. The 1996 Letter (addressed to the City’s former entity, the City of Trenton, now subsumed within the City) is set out below:

28Counsel for Domtech therefore argues that the 1996 Letter was a written submission respecting the same property as presently in issue, owned by the same entity, Voskamp Enterprises, regarding the Earlier OPA directed to the same purposes and raising the same concerns as are now contained in Domtech’s Current OPA appeal (conflict of residential uses with existing industrial uses). Therefore, Domtech argues that the underlying purpose of subsection 17(36) of the Act was satisfied because the 1996 Letter represents Domtech’s engagement with the City in the planning process and served to put the City on notice of Domtech’s objections.

29In anticipation of how the City might respond to the above arguments, Domtech’s counsel further submitted (below emphasis added):

…Domtech concedes that the February 22, 1996 letter was not presented to the current iteration of Municipal Council when it considered the instant OPA Application; however, the reason this is the case is an incident of such letter not being placed before Council by City staff…

… In our case, City staff were aware of prior submissions made respecting residential uses on the subject property and (inferentially) decided to omit such submissions from Council's Agenda package due to the period of time elapsed between the making of the prior submissions and the consideration of the instant OPA Application.

30As explained above, the Tribunal has sought from the City, by way of supplementary submissions, additional facts and a response to Domtech’s contention above in paragraph [29], but, for whatever reason, the City has apparently decided not to instruct its counsel to do so.

31Counsel for Domtech relies on the past Tribunal Decision in Zantingh v. Sarnia (City), 2021 CanLII 41866 (ON LPAT) solely for the proposition that the onus is on a municipality’s planning staff to ensure that relevant submissions are placed before a municipal Council and maintains that (below emphasis added):

…the Tribunal ought not and need not conclude that the February 22, 1996 letter not being placed before the present iteration of City Council negates the quality of such letter as a prior submission within the meaning of the Act; rather, as articulated in Zantingh, it is open to the Tribunal to regard the omission of such letter from Council's Agenda package as being a consequence of City staff's discretionary exercise, over which Domtech has no control, and upon which Domtech's Appeal standing should not be prejudiced.

32Finally, Domtech argues that the ‘efficiency’ objective underlying the ‘speak early’ purpose of subsection 17(36) of the Act, as relied upon by the City, stemming from the jurisprudence it cited in the City’s original Factum, is not compromised in this proceeding – because the ZBA appeal of Domtech will nonetheless proceed based on similar grounds even if the Current OPA appeal is precluded. Counsel for Domtech points out that if the Current OPA appeal is permitted to proceed it will likely be heard together with the ZBA appeal and that there would be substantially overlapping evidence before the Tribunal. Although this question is not before this Tribunal, it is agreed that this is reasonably likely but also finds that the similarity of the ZBA appeal cannot lead to a finding that the Current OPA appeal is therefore valid.

33Unfortunately, despite its many requests, the Tribunal does not have complete clarity concerning the state of knowledge of the City’s planning staff of the 1996 Letter prior to the adoption of the OPA. The affidavit sworn April 8, 2025 by Kelly Weste, the City’s Manager of Planning Services, does not directly consider or comment on the 1996 Letter. However, she does state in her affidavit (below emphasis added):

…Pursuant to the order of the Tribunal dated January 16, 2025, it was directed by the Tribunal that the motion to determine as to whether Domtech Inc. made written submissions to the Council of the City of Quinte West prior to the enactment of By-law 23-140 was to proceed in writing…

…Based on my review of application D09/M10/23, there are no records in possession of the City of Quinte West that would serve to indicate that Domtech Inc. or anyone on behalf of Domtech Inc. provided …[sic]…prior to the passage of By-law 23-140 on October 4, 2023…

While it is not disputed that the Appellants objection to Zoning By-law amendment, Bylaw 23-148, was made known prior to its passage, there are no records to indicate that the Appellant provided any comments, written or oral, prior to the passage of By-law 23-140 (OPA) on October 4, 2023.

34The Tribunal notes that Ms. Weste’s April 8, 2025 affidavit also contained an additional submission (not reproduced above) contending for an interpretation of subsection 17(36) of the Act and how it should be applied by the Tribunal on this Motion. Such submissions are merely legal argument – perhaps drafted by legal counsel – and therefore did not belong in Ms. Weste’s affidavit and have been given no weight by the Tribunal. The Tribunal further notes that this affidavit does not squarely address the 1996 Letter and its potential relevance.

35Ms. Weste also delivered a second affidavit, dated August 21, 2025. Presumably, this was delivered following her review of a further affidavit on behalf of Domtech, sworn on August 6, 2025, by Jagdeep Singh. In that affidavit, Ms. Weste repeated the salient elements of her earlier affidavit, then attested as follows (below emphasis added):

…Based on the information set out in the Affidavit of Mr. Singh and the timing of events, no explanation has been provided as to why a representative of Domtech Inc. did not attend either the counciI meeting of October 4, 2023 or provide written submissions prior to that date…

…It is the further position of the City that the Appellant cannot rely upon a letter of objection provided to the city on February 22, 1995[sic]…, to a previous Official Plan Amendment as constituting a written submission of objection to an application to amend the Official Plan from the City of Quinte West commenced in 2023 and approved in 2023…

…It is not sufficient to excuse the failure of thee[sic]… appellant to comply with a statutory requirement to provide oral or written submissions to an official plan amendment on the basis that a hearing before the tribunal will proceed with respect to an appeal of a zoning by-law amendment.

36The underlined passages contained in paragraph [35] are also improper for the same reasons noted by the Tribunal above: they contain legal arguments which do not belong in this affidavit. However, those passages do serve to likely confirm the City’s position on this Motion in reply to the arguments made by Domtech, summarized above. Interestingly, the Tribunal is also able to infer from this second affidavit that Ms. Weste was aware of the 1996 Letter. However, she offered no explanation as to when or how she became aware of it (and there is an apparent typographical error describing the year 1995 instead of 1996).

37The affidavit of Mr. Singh, which was commented upon by Ms. Weste in her second affidavit, stated:

…On September 28, 2023, I sent an email to Mr. Elia Gallo, the Chief Financial Officer and Comptroller of Domtech Inc., indicating that we (being Domtech Inc.) should be strenuously objecting to the Official Plan Amendment in issue. The subject line of the said email is "Re-Zoning request next to our plant". My use of the term "Re-zoning" in this subject line is colloquial and does not connote reference to a technical "re-zoning" juxtaposed with "Official Plan Amendment")…Elia responded to me, the same day, stating that he "will look into it" … On October 2, 2023, I was informed that Elia had passed away, suddenly and unexpectedly, the day prior (October 1, 2023). Prior to his death, Elia had been living with cancer for some time…

38The sad sequence of events set out in Mr. Singh’s affidavit suggests that Domtech had an intention to make some sort of written objection specifically regarding the pending OPA. However, that intention is not determinative of the matters at issue on this Motion.

39As noted, counsel for Domtech relies heavily on a statutory interpretation argument in advocating that there is no requirement that the 1996 Letter to have been delivered, specifically with reference to the passage of the Current OPA, or on a date that was reasonably contemporaneous with it. In Domtech’s original Factum, he argued (below emphasis added):

…Interpretation of a statute is the be undertaken, foremost, as follows: "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament"…

…The Supreme Court of Canada has held, as a matter of statutory interpretation, that "a restrictive provision wherein the rights of action of the citizen are necessarily circumscribed by its terms, attracts a strict interpretation and any ambiguity found upon the application of the proper principles of statutory interpretation should be resolved in favour of the person whose right of action is being truncated"…

40Counsel for Domtech then contended:

“Domtech submits that the relevant words of S. 17(36), being "a specified person who, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council", read in their ordinary and grammatical sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament, permits the following to be drawn:

i. The legislature has not imposed a temporal 'window' (as in a temporal period with a beginning and an end) within which a specified person must have made submissions; rather, the legislature has simply stated that such submissions must be made "before" the Plan was adopted.

ii. The legislature has not defined a substantive scope within which a person's submissions must fall; particularly, the legislature has not specified that a specified person's submissions must address the "Plan" before Council, specifically.

iii. The legislature has not defined the public meeting or the council at which or to whom a specified person's submissions must be made; particularly, the legislature has not specified that such submissions must be made at, for instance, the most recent Public Meeting, or to the present iteration of municipal council….

S. 17(36) of the Planning Act is clearly a provision which restricts the rights of action of a person, and thus ambiguity within the statute must be resolved in favour of the person whose rights are truncated… In view of the above, Domtech submits that it made written submissions to the City in advance of the Plan being adopted (being the 1996 letter), and therefore it is a proper appellant within the meaning of S.17(36) of the Planning Act

41In connection with its statutory interpretation arguments set out in paragraph [39] above, Domtech’s counsel relied on the following jurisprudence: Yarco Developments Inc. v. Home Construction Regulatory Authority (Registrar), 2024 ONSC 93 (Div. Ct.); and Berardinelli v. Ontario Housing Corp., 1978 CanLII 42 (SCC), 1978 CarswellOnt 462 (S.C.C.) (“Berardinelli”).

42Subsequent to the Status Telecon held on January 7, 2026, the Tribunal asked the Parties to consider the following additional jurisprudence not referenced by the Parties’ counsel in their original respective factums: R. v. Wilson, 2025 SCC 32 (“Wilson”); and Aizic v. Natcan Trust Company, 2025 ONCA 719 (“Aizic”).

43In its Supplementary Factum, dated January 16, 2026, counsel for Domtech argued that both of these two recent cases support Domtech’s existing arguments as described above. Expounding further, specifically in relation to the Wilson case, Domtech’s counsel maintained:

On principle, the reasons that statutory ambiguity ought to be resolved in the citizen's favour are, Domtech submits, twofold:

i. The State has effectively limitless power. The citizen has much less. Thus, where the powerful State [powerful relative to the citizen], via its unique and exclusive power to legislate, truncates the rights of a citizen, the State should not get the further [proverbial] benefit of the doubt where it does so ambiguously. To do otherwise would be to further advantage the State to the detriment of the citizen.

ii. The State is the entity with the exclusive entitlement to craft legislation.

Much like the contractual doctrine of contra proferentem [whereby ambiguity in a contract is resolved in favour of the non-drafting party, independent of power imbalance or lack a thereof], the State should not get the further [proverbial] benefit of the doubt where it legislates ambiguously. Again, to do otherwise would be to further advantage the State to the detriment of the citizen.

44Insofar as Aizic is concerned, counsel for Domtech notes that the Court of Appeal relied on, and thus affirmed recognition of, the principles set out by the Supreme Court of Canada in Berardinelli, and also:

…is confirmation that the law will, as a broadly applicable principle, prefer an interpretation of legal authority [be it a statute or a Court Order] that preserves, rather than truncates, a citizen's right of Action...

45Counsel for the City also filed a Supplementary Factum in answer to the Tribunal’s request to consider Wilson and Aizic. The City’s counsel made the following submissions (below emphasis added):

All decisions of the Supreme Court of Canada are important, however, the decision in R. v. Wilson, is not of particular assistance in the case at hand… In the case at hand, the language of Section 17(36) of the Planning Act; is not devoid of language which results in ambiguity as to how an appeal of an Official Plan or amendment is to proceed.

… In short, the language of Section 17(36) is clear and concise as to the requirement and process to be followed to ensure that the legislative purpose is realized and avoid an assumed interpretation… The approach taken by the court in R. v. Wilson, is the modern approach to statutory interpretation which requires that the words of an act are to be read in their entire context and that the plain and ordinary meaning of the words in their entire context and is harmonized with the broader structure of the Act, its purpose and parliamentary intention… It is submitted that the requirement of an Appellant to comply with the requirements of Section 17(36) to make oral or written submissions is in line with modern interpretation…

Aizic v. Natcan Trust Company is a case where the issue before the court was the interpretation of an Order…In doing so the Court held that the interpretation of a court order is "much like the interpretation of a statute" in the sense that it is an exercise of attending to the Order's text, context, and purpose… In the present case, it is submitted that the wording of Section 17(36) is not ambiguous and the text, context and purpose of Section 17(36) is clear…In the case at hand, the "text, context and purpose" of Section 17(36) is plain and directive…A party who wishes to appeal an Official Plan amendment must do so in accordance with the timing and method prescribed by the statute…

46The Tribunal notes that the City, in its recent Supplementary Factum, has still not made any argument concerning the relevance of subsection 17(35) to the interpretation of subsection 17(36), nor did it clearly address the arguments made by Domtech as extensively described above. The Tribunal generally agrees with the statutory interpretation principles set out in the Supplementary Factums of Domtech and the City. However, it is also mindful of the starting point emphasized in Berardinelli, recently repeated by the Court of Appeal in Aizic:

…the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament…

47In the Tribunal’s view, there can be little doubt that subsection 17(36) of the Act took away the appeal rights of would-be appellants that previously existed under the Act. The problem is that words used in that provision do not clearly and specifically require that the written submission by a specified person must be in relation to the actual instrument being appealed – in this case the Current OPA. The Tribunal finds that the language in subsection 17(36) is also unclear and does not unequivocally state this either.

48The question then becomes whether, in taking away a previously existing right of appeal, in the circumstances of this proceeding, subsection 17(36) of the Act ought to be interpreted in a very narrow fashion.

49In this case, it appears to be conceded by the City through the affidavits of Ms. Weste that she, and by logical extension the City, had some undefined level of ‘institutional knowledge’ of the 1996 Letter and that it was an objection to the Earlier OPA aimed at the same purposes as the current OPA, and which had been sought by the same owner of the very same property.

50Domtech has also produced a document which shows that the City Council denied that Earlier OPA, presumably in part due to that objection by Domtech raised in the 1996 Letter. Again, in the absence of any contrary evidence from the City – notwithstanding the Tribunal’s requests – the Tribunal presumes that the City would have knowledge of, and access to, the past decisions it has made with regard to all City properties, including the Subject Property. However, the likelihood that the City may, or should, have known of its previous decision to deny the Earlier OPA has not been considered by this Tribunal as a factor relevant to the determination of this Motion.

51The Tribunal faces a substantial factual deficit because there is no evidence before it as to when Ms. Weste or any other member of the City’s planning department became aware of the 1996 Letter. This is important because the Tribunal is left to ponder as to, inter alia:

(a) Was Ms. Weste or any other member of the City’s planning department already aware of the 1996 Letter after Domtech made clear its objection to the City’s ZBA concerning the Subject Property?

(b) Was Ms. Weste or any other member of the City’s planning department aware of the 1996 Letter at the time that City Council considered the Current OPA?

(c) Was the 1996 Letter provided to City Council before it made its deliberations regarding the OPA and did City Council discuss it?

(d) Was the 1996 Letter instead withheld from City Council by City staff? If so, why?

52Domtech’s counsel vociferously argues that his client always intended to object to the Current OPA and frames its failure to send another specific letter of objection as an oversight, perhaps due to the sudden passing of one of its senior corporate employees. He points to the ZBA appeal as further support for the notion that Domtech clearly intended to also oppose the Current OPA and reiterates that its general opposition to the proposed development of the Subject Property will still be litigated in the ZBA appeal in any event. However, the main argument of Domtech’s counsel is that the 1996 Letter meets the requirements of subsection 17(36) of the Act as strictly construed according to the principles discussed above.

53In the very unique circumstances of this proceeding – and in light of the many unanswered questions, which for some reason the City has chosen not to address on this Motion – the Tribunal determines that the available facts indicate that the purpose and intent of subsection 17(36) has been satisfied by Domtech. Domtech made its opposition known in the 1996 Letter delivered in relation to the Earlier OPA – which the City itself denied. The apparent knowledge of this by the City’s staff member, Ms. Weste (and perhaps others), can reasonably be imputed to the City. Unfortunately, the Tribunal is drawn to make a reasonable inference that the City has avoided directly addressing the factual contentions and arguments made by Domtech – for which the Tribunal has repeatedly sought explanation – in an effort to obscure the Tribunal’s full understanding of the circumstances. The Tribunal finds that the language of subsection 17(36) does not unequivocally preclude Domtech’s appeal because it does not clearly require that Domtech’s prior “written submissions” be made: (i) in or around 2023; or (ii) that they must clearly identify solely the Current OPA.

54In the Tribunal’s opinion, it would have been a simple matter for the Act’s drafters to eliminate the ambiguity in subsection 17(36) by specifically aligning the requirement for prior ‘written submissions’ to a precise timeline and a specific planning instrument. The Tribunal determines that, in applying the principles set out in the jurisprudence discussed above, the ambiguity thereby created ought to be resolved in favour of Domtech in these unusual and very novel circumstances. Therefore, that ambiguity should not be interpreted so as to preclude Domtech’s right to appeal, for the same reasons pointed out by the Court of Appeal most recently in Aizic (below emphasis added):

Further, where a holistic consideration of text, context, and purpose nevertheless yields ambiguity, court orders, like statutes, should be interpreted in a manner that preserves a party’s right to sue: Berardinelli v. Ontario Housing Corp, 1978 CanLII 42 (SCC), [1979] 1 S.C.R. 275, at p. 280; Garland v. Consumers’ Gas Co. (2001), 2001 CanLII 8619 (ON CA), 57 O.R. (3d) 127 (C.A.), at paras. 46-47, reversed on other grounds but affirming the principle 2004 SCC 25, [2004] 1 S.C.R. 629, at paras. 67-69.

55In Berardinelli, the Supreme Court of Canada had earlier noted:

Section 11 [of the Public Authorities Protection Act], being a restrictive provision wherein the rights of action of the citizen are necessarily circumscribed by its terms, attracts a strict interpretation and any ambiguity found upon the application of the proper principles of statutory interpretation should be resolved in favour of the person whose right of action is being truncated. There is little doubt about the presence of ambiguity and uncertainty of meaning in the sec- tion. This provision is found in a provincial statute which deals with a number of public officials…

56For clarity, the Tribunal is not creating a new or modified test for the application of subsection 17(36) of the Act. Instead, the rather unique and unusual circumstances here have led the Tribunal to the conclusion that the underlying purpose of this statutory provision has been met by Domtech in the 1996 Letter and that the City was aware of Domtech’s written objection to the objectives sought in the Current OPA. The Tribunal must assume that the City possesses full control of all facts and evidence that might be relevant to these circumstances yet deliberately chose not to respond in detail to the Tribunal’s several supplementary requests for information and argument. As noted above, it is reasonable to infer that the 1996 Letter, perhaps together with the City Council decision denying the Earlier OPA, was in possession of and within the knowledge of the City’s planning department. As noted, the Tribunal finds it reasonable to also infer that such documentation and information was available to be provided to City Council prior to enactment of the Current OPA in 2023.

ORDER

57THE TRIBUNAL ORDERS THAT:

(a) The motion by the City of Quinte West to dismiss the appeal of Domtech Inc. as against Official Plan Amendment, File D09/M10/23 (“Motion”) is denied; and

(b) There shall be no Order as to the costs of the Motion.

“William R. Middleton”

WILLIAM R. MIDDLETON

vice-chair

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.