Ksiazek v. Toronto and Region Conservation Authority, 2026 CanLII 20141

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 06, 2026

CASE NO(S).: OLT-25-000181

PROCEEDING COMMENCED UNDER subsection 28.1(22) of the Conservation Authorities Act, R.S.O. 1990, c. C.27.

Applicant/Appellant: Stephen Ksiazek

Respondent: Toronto and Region Conservation Authority

Subject: Appeal of decision

Description: Appeal of Application for Development Permit

Property Address: 32 Plateau Crescent

Municipality/UT: City of Toronto

OLT Case No.: OLT-25-000181

OLT Lead Case No.: OLT-25-000181

OLT Case Name: Ksiazek v. Toronto and Region Conservation Authority

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

Request by: Toronto and Region Conservation Authority

Motion for: Directions

Heard: February 18, 2026 by video hearing

APPEARANCES:

Parties

Counsel

Toronto Region Conservation Authority

T. Duncan

Stephen Ksiazek

C. Harris

DECISION DELIVERED S. BRAUN AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1In late 2021, Stephen Ksiazek (“Applicant”/ “Appellant”) and his former spouse (now deceased) obtained a building permit from the City of Toronto (“City”) for renovations to the property located at 32 Plateau Crescent (“Subject Property”). They intended to construct a second storey addition, a rear sundeck and replacement carport. Renovations were underway when the City revoked the building permit in September 2022. The City’s reason for the revocation is that the Subject Property is located in an area regulated by Toronto Region Conservation Authority (“TRCA”), from which a development permit is required to authorize the renovations.

2The Applicant appealed the City’s decision to revoke the building permit to the Ontario Superior Court of Justice (“Court”), pursuant to s. 25 of the Building Code Act (“BCA”). The Court heard that appeal together with an application by the City for an order requiring the Applicant to remove the impugned structure, pursuant to s. 38 of the BCA. On September 25, 2024, the Court dismissed the appeal and ordered the Applicant to remove the impugned structure within 60 days (Ksiazek et al. v. Toronto (City) Chief Building Official et al. and the City of Toronto et al. v. Ksiazek et al., 2024 ONSC 5295) (“Court decision”). The Applicant appealed the Court decision, which remains pending before the Ontario Superior Court of Justice (Divisional Court) (“Divisional Court”), and the impugned structure remains intact on the Subject Property.

3Following the Court decision, on October 21, 2024, the Applicant applied to the TRCA for a development permit. On February 10, 2025, TRCA staff issued a comment letter indicating that they could not support the application. The letter further advised that the permit could not be refused or granted subject to conditions unless the Applicant was first given an opportunity for a hearing, which could be requested by writing to TRCA’s clerk. The Applicant did not request a hearing and, on or about March 17, 2025, filed an appeal with the Tribunal pursuant to s. 28.1(22) of the Conservation Authorities Act (“Act”) due to TRCA’s failure to make a decision on the application within legislated timelines.

4The grounds set out in the Notice of Appeal are as follows:

a) the Subject Property is not within the TRCA’s jurisdiction;

b) the proposed development is not within “hazardous lands” as defined in O. Reg 41/24;

c) the proposed development and the Subject Property are not within a river or stream valley for the purpose of s. 28(1)(iii) of the Act and s. 2 of O. Reg 41/24;

d) The proposed development is not likely to affect the control of flooding, erosion, dynamic beaches or unstable soil or bedrock;

e) The proposed development is not likely to create conditions or circumstances that in the event of a natural hazard, would jeopardize the health or safety of a person;

f) The proposed development would not be likely to create conditions that will result in damage or destruction of property.

MOTION

5This decision and Order address a motion by TRCA to strike the following issues proposed by the Appellant for adjudication at a future hearing of the merits:

• Is the subject property, or any part of it, within an area falling within the jurisdiction of TRCA?

• Is the proposed development, or any part of it, within “hazardous lands” as defined by the Act and the regulations promulgated thereunder?

• Is the proposed development within a river or stream valley, as defined within the Act and the regulations promulgated thereunder?

6Initially, two other proposed issues were disputed by TRCA on the basis that they were irrelevant and/or redundant but, in the course of arguing the motion, the Parties resolved their dispute in that regard. The Appellant agreed to remove those two issues, conceding that they were subsumed within others already on the draft issues list. Accordingly, only the three issues set out above remain in dispute for the purposes of the motion.

7TRCA attacks the proposed issues on two fronts. First, on the basis that they are beyond the jurisdiction of the Tribunal by virtue of a limitation on its powers under s. 28.1(26) the Act. Second, on the basis that the issues were already considered and decided by the Court and to allow such issues to be adjudicated at a future Tribunal hearing is to allow an attack upon the Court decision.

8The Appellant’s response is that the Court decision has no bearing on an application/appeal submitted subsequent to that decision, and it would be an error of law to rely on a finding in a collateral proceeding that is not relevant and not determinative of the issues at hand. The Appellant also disagrees that the impugned issues lie beyond the Tribunal’s jurisdiction, noting that an appeal pursuant to s. 28.1(22) of the Act is a hearing de novo, the fundamental first steps of which require consideration of whether the proposed development is even within hazardous lands or a river or stream valley (as defined by the Act and regulations) and, if so, what the scope of the hazard or natural feature is.

9The following materials were before the Tribunal:

• TCRA Motion record (including sworn Affidavit of Terina Tam, Registered Professional Planner)

• TRCA Book of Authorities

• Applicant’s Response to Motion (including sworn Affidavit of Rekisha Feldman-Anchundia)

• Applicant’s Book of Authorities

• Applicant’s Factum

• TRCA Reply (including sworn Affidavit of Jane Hampel)

• TRCA Supplementary Book of Authorities

DECISION

10Following consideration of the foregoing and the oral argument presented, the Tribunal grants the relief requested by the TRCA, finding that the impugned issues have already been litigated at, and decided by, the Court. Allowing those issues to be adjudicated at a future hearing in the present appeal creates the potential for the Tribunal’s decision to conflict with that of the Superior Court and/or the Divisional Court.

POSITIONS OF THE PARTIES

Areas of agreement

11The Parties agree that the applicable section of the Act is s. 28, which is found in Part VI - Regulation of Areas Over Which Authorities Have Jurisdiction. The following general prohibition is set out in s. 28(1):

Prohibited activities re watercourses, wetlands, etc.

28 (1) No person shall carry on the following activities, or permit another person to carry on the following activities, in the area of jurisdiction of an authority:

1. Activities to straighten, change, divert or interfere in any way with the existing channel of a river, creek, stream or watercourse or to change or interfere in any way with a wetland.

2. Development activities in areas that are within the authority’s area of jurisdiction and are,

i. hazardous lands,

ii. wetlands,

iii. river or stream valleys the limits of which shall be determined in accordance with the regulations,

iv. areas that are adjacent or close to the shoreline of the Great Lakes-St. Lawrence River System or to an inland lake and that may be affected by flooding, erosion or dynamic beach hazards, such areas to be further determined or specified in accordance with the regulations, or

v. other areas in which development should be prohibited or regulated, as may be determined by the regulations

12There is no dispute that “development activity”, “hazardous lands” and “wetland” are defined terms within the applicable regulation, O. Reg 41/24, and that the renovations constitute development activity. There is also no dispute that a person who wishes to engage in an activity otherwise prohibited under s. 28(1) may apply for a permit under s. 28.1(2) and, pursuant to s. 28.1(1), an authority may issue a permit authorizing the activity if, in the opinion of the authority, the following statutory test is met:

(a) the activity is not likely to affect the control of flooding, erosion, dynamic beaches or unstable soil or bedrock;

(b) the activity is not likely to create conditions or circumstances that, in the event of a natural hazard, might jeopardize the health or safety of persons or result in the damage or destruction of property; and

(c) any other requirements that may be prescribed by the regulations are met.

13The key issue is the interpretation of s. 28.1(26):

Powers of the Tribunal

(26) The Ontario Land Tribunal has authority to take evidence, to refuse the permit or to order the authority to issue the permit, with or without conditions

and whether, on an appeal with respect to a permit application, the Tribunal can hear evidence and determine whether the Subject Property/proposed development is in an area where development activity is otherwise prohibited (and ultimately, whether a permit is, in fact, required).

TRCA’s position

14TRCA takes the position that the Tribunal lacks the jurisdiction to hear any challenge to the jurisdiction of the TRCA to issue a permit or to declare that the Subject Property or the development is not regulated or subject to the regulatory jurisdiction of the TRCA. TRCA relies on the wording of s. 28.1(26), as well as on s. 8 of the Ontario Land Tribunal Act (“OLTA”),

Exclusive jurisdiction

8 (1) The Tribunal has exclusive jurisdiction in respect of all matters in which jurisdiction is conferred on it by this or any other Act.

Same

(2) The Tribunal has authority to hear and determine all questions or law and fact with respect to all matters within its jurisdiction, unless limited by this or any other Act.

15In TRCA’s submission, s. 28.1(26) only empowers the Tribunal to take evidence and either refuse the permit or order the permit be issued (with or without conditions) which, it argues, is a clear limitation within the meaning of s. 8(2) of the OLTA. It is further submitted that the Tribunal has no power to order that a permit is not required, which would amount to granting broad declaratory relief. TRCA notes that, although the Tribunal has exclusive jurisdiction in respect of all matters in which jurisdiction is conferred on it by the OLTA or any other Act, this general jurisdiction does not include the power to grant the declaratory relief sought by the Appellant.

16In situations where one does not believe, or is unsure whether, their property/proposed development is in an area where development is otherwise prohibited by s. 28(1), TRCA submits there are two options: proceed with development in the absence of a permit or apply for a permit. It is further submitted that once an application for a permit is made, the Applicant is deemed to accept that a permit is, in fact, required and the only decision that can then be made (by either TRCA or the Tribunal) is whether the statutory test for the issuance of a permit in s. 28.1(2) is met.

17When questioned as to how a property owner would go about challenging whether their property is within an area where development is prohibited, TRCA submitted that the individual would have to apply for a permit and request a hearing, at which the TRCA could only decide to refuse or issue the permit. Thereafter, the individual would have to pursue judicial review of the decision, at which time, they could argue that the property is not within an area where development is prohibited by s. 28(1) and request a determination on that issue from the court, because the court has jurisdiction to grant declaratory relief.

18With respect to the Court decision and the impact on these proceedings, TRCA references the Factum submitted to the Court by the Appellant (“Court Factum”), and submits that the impugned issues, all of which seek to challenge the jurisdiction of TRCA and ultimately whether a permit is required, were argued before the Court. For instance, the Court Factum includes argument that the proposed development is not within any hazardous lands, as defined in O. Reg 41/24, and is therefore outside TRCA’s jurisdiction, and that identification of the Subject Property on TRCA mapping does not automatically engage development prohibitions/permit requirements, because descriptions in the Act and O. Reg 41/24 prevail over an authority’s mapping in the event of a conflict. It states that the key determination for the Court, in respect of TRCA permit requirements and development prohibitions, is whether the proposed construction is within “hazardous lands” identified by TRCA and goes on to argue that, to the extent the proposed construction is within “hazardous lands”, specific exemptions in O. Reg 41/24 apply and a permit is therefore not required.

19TRCA submits the Court understood and considered the regulation in effect at the time the building permit was granted (O. Reg 166/06) as well as the current regulation (O. Reg 41/24) and determined that, in either scenario, TRCA has jurisdiction and a permit is required. TRCA argues that allowing the impugned issues to be adjudicated by the Tribunal is to allow an attack on the Court decision (currently under appeal at the Divisional Court), creating the potential for conflicting decisions.

20It is argued that refusing to strike the impugned issues will put the Tribunal on an “irreconcilable collision course” with the existing Court decision and will force Parties to call evidence on same, increasing the length and cost of a hearing. Based on all of the foregoing, TRCA urges the Tribunal to grant the requested relief, noting that doing so aligns with s. 9 of the OLTA (which provides that the Tribunal has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred on it under this or any other Act) and the Tribunal’s Rules of Practice

and Procedure (“Rules”) including, but not limited to, Rule 1.3, which speaks to fair, just, expeditious and cost effective dispute resolution and Rule 15.4, which contemplates dismissal of proceedings which are outside the Tribunal’s jurisdiction.

Appellant’s Position

21The Appellant disagrees that s. 28.1(26) operates to limit the Tribunal’s powers, preventing it from considering evidence with respect to the scope of hazardous lands or natural features and making a determination that a property is/is not within an area where development is prohibited under s. 28(1). It is submitted that, upon reading the plain language of the Act and O. Reg 41/24, and considering the statutory scheme underlying the present appeal, the Tribunal is not only permitted to consider the impugned issues, but is required to do so. In the Appellant’s view, it is implicit within the statutory test in s. 28.1(1) and the language of s. 28 that there must first be a determination as to whether the proposed activity would otherwise be prohibited prior to engaging in the rest of the analysis as to whether a permit should issue. An appeal to the Tribunal is a hearing de novo, where it “steps into the shoes” of TRCA to consider the matter afresh, including preliminary questions (like the impugned issues) relevant to the determination of whether the activity is prohibited within s. 28(1).

22It is submitted that the Tribunal’s jurisdiction over the matters at issue derives from the Act working in concert with ss. 8(1) and 8(2) of the OLTA (quoted above at paragraph [14]) and TRCA is “reading in” a limitation that simply does not exist. It is further submitted that nothing in the legislation suggests a permit applicant automatically accepts the scope/boundary of a prohibited area, such that the act of applying for a permit deprives them of their right to challenge whether their property falls within a regulated area. To the contrary, the Appellant draws attention to s. 4(5) of O. Reg 41/24, which contemplates conflicts with respect to such boundaries:

(5) For greater certainty, in case of a conflict regarding the boundaries of the areas where development activities are prohibited under paragraph 2 of subsection 28 (1) of the Act, the description of those areas in that paragraph and in section 2 of this Regulation prevail over the depiction of the areas in the maps referred to in subsection (1) of this section.

23It is argued that the limits of such areas are often affected by natural processes which can change over time and as such, a property may be within a floodplain at one point in time but not another. Accordingly, the Appellant submits this is the reason authorities are required to update their mapping with regularity and the reason the regulation clarifies what is to occur in the event of a conflict.

24The Appellant strongly disagrees with TRCA’s assertion that neither TRCA nor the Tribunal have the power to determine whether a property is within an area where development is prohibited and that only the Court can do so in the context of a judicial review of a decision on a permit application. It is argued that an applicant cannot raise an issue on judicial review that is not part of the decision being reviewed/which was not even argued in the first instance and therefore, the appropriate forum for the determination of the issue of whether the regulated boundaries have been appropriately calculated is the appeal before this Tribunal.

25With respect to the Court decision, it is submitted that it does not and cannot fetter the Tribunal’s exclusive jurisdiction to determine the issues before it on this appeal. The Appellant submits those proceedings related only to the BCA and the impugned issues are different than the issue before the Court, which was whether the TRCA was entitled to give the advice it did, and whether it was reasonable for the City to rely on that advice to revoke the building permit. In the Appellant’s interpretation, what the Court decision says is that there is a basis in law for the position that this is an area regulated by TRCA, but the Appellant did not challenge this in the appropriate forum by making an application to TRCA and appealing to the Tribunal and therefore, it was reasonable for the City to rely on the advice of TRCA to revoke the building permit.

26Beyond the foregoing, the Appellant argues that there was no expert evidence before the Court upon which it could have determined that the property is within an area where development is prohibited and that the decision does not apply the test under sections 28 or 28.1 of the Act as the application of such a test is within the exclusive jurisdiction of the Tribunal. It was further argued that the Court was incorrect in finding no error of law by TRCA because TRCA didn’t make any decision and TRCA was not a party to the proceedings.

27Finally, the Appellant submits that even if the Tribunal finds the first of the impugned issues was considered and determined by the Court, it did not specifically consider whether the Subject Property/proposed development is within hazardous lands and/or river or stream valleys. As such, those two remaining issues remain live for adjudication in the present appeal.

ANALYSIS AND FINDINGS

28The Tribunal must first turn its mind to the import of the Court decision. This is because if the impugned issues were considered and decided by the Court, the Tribunal is bound by the decision. Similarly, even if the Court did not explicitly consider whether the Subject Property/proposed development is within “hazardous lands” and/or “river or stream valleys”, the Tribunal must still consider the practical implications of allowing these issues to proceed to a hearing, and whether doing so could result in the potential for a decision which conflicts with that of the Court.

29In the view of the Tribunal, the contents of the Court Factum demonstrate that the specific issue of whether the subject property is subject to TRCA regulation was put before the Court. In so finding, the following excerpts of the Court Factum were considered particularly significant:

43The identification of the Ksiazeks’ property on TRCA mapping does not automatically engage development prohibitions or permit requirements. Conservation Authorities cannot acquire, though the adoption of policies or maps, jurisdiction which is not authorized by statute Where there is a conflict between an authority’s maps and the description of development prohibition in statute, the descriptions in the CAA and its regulations prevails.

46Following Bill 23, development activity is prohibited only if it is within the authority’s area of jurisdiction and is within “hazardous lands” O. Reg 41/24 defines “hazardous lands” as being “land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion, dynamic beaches, or unstable soil or bedrock. This definition imports the specific hazards as defined in that regulation. Whether a property is within one of these hazards is a matter that is generally determined with the assistance of expert evidence. As discussed in further detail below, the construction proposed is not within any “hazardous lands” and is therefore outside of the TRCA’s jurisdiction respecting development prohibition.

49The key determination for this Court in respect of TRCA permit requirements and development prohibitions is whether the proposed construction is within “hazardous lands” identified by the TRCA.To the extent that it is, the question then becomes whether the exemptions in O. Reg 41/24 should apply.

58The City has provided an email from the TRCA that states that “O. Reg 41/24 does not change the TRCA’s comments as it relates to the works at [the Property]. Respectfully, the TRCA’s bare statement in an email to the City on whether the Property falls within its jurisdiction or the proposed construction requires a permit is not reliable evidence nor dispositive of the issue. This Court must apply section 28(1) of the CAA and O. Reg 41/24 and determine whether development is prohibited and therefore permits are required.

68If the Court does not accept the Ksiazek’s submissions respecting TRCA’s jurisdiction and associated permitted requirements, the Ksiazeks should be provided an opportunity to exhaust that permitting process and any appeal rights pursuant to sections 28.1 to 28.1(26) of the CAA before they are ordered to remove construction. No decision has been made by the TRCA as it has taken the position that no formal development application was submitted. As such, the statutory process has not even begun, much less been exhausted.

30The Court Factum references various emails between the Appellant and TRCA as well as a geotechnical report and survey and includes detailed arguments which mirror those the Appellant seeks to argue on a hearing of the merits before this Tribunal, including that the proposed construction is outside the TRCA’s jurisdiction and is not within hazardous lands. It also includes arguments that, even if the proposed construction were within hazardous lands a permit would still not be required, because the proposed garage, second floor addition and sun deck fall within specific exemptions specified in O. Reg 41/24.

31The Court decision notes that the property is located within part of the Don Valley Watershed, which is regulated by TRCA, and approval from TRCA was a precondition to the building permit having been validly issued, because s. 8(2) of the BCA required compliance with “any other applicable law”. The other applicable law was O. Reg 166/06, made pursuant to s. 28(1)(c) of the Act. The Court goes on to acknowledge that O. Reg 166/06 was repealed and replaced by O. Reg 41/24 as of April 2024 but nevertheless finds, at paragraphs 31-38:

31There can be no doubt on the evidence that the City properly considered the TRCA’s objections. The property is subject to TRCA regulation, both under the former regulations which governed at the time the permit was issues and when it was revoked, as well as the 2024 regulations.

32The fact that O. Reg 41/24 came into force in April 2024 does not support the Ksiazeks’ position on this appeal. The TRCA has confirmed that O. Reg 41/24 does not change its position. RCA (sic) staff’s emails dated March 14, 2024 and September 13, 2024 confirm their continued opposition to the construction.

33The TRCA has not approved the proposed construction. The changes in the relevant Ontario regulation are not material for present purposes. The TRCA’s advice was clearly within its jurisdiction and an appropriate position for the City to rely on at the time the perit was revoked.

34There has been no new application since the April 2024 regulation changes and there is no expert evidence to suggest that the outcome would be any different if the matter was now taken to the TRCA and then appealed to the Ontario Land Tribunal.

35As already noted, the Ksiazeks had their chance to pursue that route long ago.l They have never made any application for approval from the TRCA and consequently did not attempt to appeal or otherwise review the TRCA’s decision (or non-decision i.e. there is also an appeal available if the application is not decided on a timely basis) upon which the City relied.

36On this appeal, the Ksiazeks have failed to establish that the permits were improperly revoked.

37There is no error of law by the City, its CBO or the TRCA. There is no palpable and overriding error of fact or mixed fact and law.

38The 2024 changes in the “applicable law” (the regulations) do not assist the Ksiazeks.The permits were lawfully revoked on proper grounds.

32Based on the foregoing, the Tribunal finds the impugned issues have already been argued at, considered by and decided upon by the Court. In the view of the Tribunal, the Appellant is attempting to utilize this appeal proceeding as a de facto and duplicative avenue of appeal from the Court decision. Beyond the fact that the Tribunal has no power to review a decision of the Court, allowing the impugned issues to proceed could result in a decision which is inconsistent with that of the Court.

33While the Court may not have made a determination with respect to “hazardous lands” or “rivers or stream valleys” in particular, it did consider s. 28 of the Act, O. Reg 41/24 and made a finding that the property is subject to TRCA regulation. The appeal was dismissed and the revocation of the building permit maintained on the basis that TRCA approval was a precondition to the valid issuance thereof. Regardless of whether the Court explicitly considered the “hazardous lands” and “river or stream valley” issues, the reality is that if the Tribunal were to consider the impugned issues and find in favour of the Appellant on any of them, the result would be a ruling that the proposed development does not fall within the general prohibition in s. 28(1) and accordingly, no permit would be required. This would be in direct conflict with the Court decision, creating a potentially unworkable legal scenario. Allowing these issues to be considered in multiple proceedings is neither fair, efficient or cost effective and accordingly, the Tribunal grants the relief requested by TRCA.

34The Tribunal accepts TRCA’s submission that striking the impugned issues does not undermine the ability to call whatever technical evidence may be necessary for the Tribunal to determine whether the proposed development meets the statutory test for issuance of a permit in s. 28.1(1).

35On the basis of the foregoing ruling, the Tribunal need not go on to consider the remaining question of whether OLTA s. 8.2 and s. 28.1(26) of the Act operate together to limit its powers on an appeal under s. 28.1(22).

OTHER MATTERS

36The Tribunal notes that, the Applicant’s responding materials request an Order requiring TRCA to pay the costs of the motion on the basis that the motion has no merit and is an abuse of the Tribunal’s process and an attempt to use collateral and irrelevant proceedings to colour the Tribunal’s view of the merits of the case. The Tribunal will make no such order at this time, being of the opinion that there has been no such conduct, nor any conduct rising to the threshold justifying such an award.

37Finally, the Parties are reminded of the next steps in this proceeding and the deadlines associated with same, are as specified in the previous decision of the Tribunal issued on January 22, 2026.

ORDER

38UPON MOTION to the Tribunal by TRCA for an Order striking the following proposed issues from the Issues List:

a. Is the subject property, or any part of it, within an area falling within the jurisdiction of TRCA?

b. Is the proposed development, or any part of it, within “hazardous lands” as defined by the Act and the regulations promulgated thereunder?

c. Is the proposed development within a river or stream valley, as defined within the Act and the regulations promulgated thereunder?

AND after the hearing of the motion,

39THE TRIBUNAL ORDERS THAT the Motion for directions by TRCA is granted, and the issues in paragraph 38 above shall be struck from the list of issues to be adjudicated at a future hearing of the merits in the within proceeding.

“S. Braun”

S. BRAUN

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.