CITATION: Paletta v. Burlington et al, 2021 ONSC 2565
DIVISIONAL COURT FILE NO.: DC-20-00343
DATE: 2021 04 06
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JUSTICE MANDHANE
BETWEEN:
Paletta International Corp.
Moving Party/Appellant
- and -
The Corporation of the City of Burlington
Respondent
- and -
The Regional Municipality of Halton
Respondent
- and -
Halton Region Conservation Authority
Respondent
- and -
Niagara Escarpment Commission
Respondent
Scott Snider and Shelley Kaufman, for the Moving Party/Appellant
R. Andrew Biggart and Blake Hurley, for the Respondent, The Corporation of the City of Burlington
David N. Germain, for the Respondent, The Regional Municipality of Halton
Konstantine Stavrakos, for the Respondent, Halton Region Conservation Authority
Sunny Zhai, for the Respondent, Niagara Escarpment Commission
HEARD: March 24, 2021
reasons on motion for leave to appeal to the divisional court brought pursuant to s. 37 of the Local Planning Appeal Tribunal Act, 2017, S.O. 2017, c. 23, Sched. 1
MANDHANE j.
OVERVIEW
[1] Paletta International Corporation (“PIC”) brings a motion under s. 37(1) of the Local Planning Appeal Tribunal Act, S.O. 2017, c. 23, Sched. 1 (“LPATA”) for leave to appeal an April 30, 2020 decision of the Local Planning Appeal Tribunal (“LPAT”) (Tribunal Case # PL020959).
[2] At issue is the LPAT’s determination of the applicable legislative and policy framework under which to assess PIC’s Burlington sub-division development proposal (“Eagle Heights”).
[3] The LPAT rejected PIC’s argument that Eagle Heights should be assessed under the legislative and policy regime (“policy regime”) applicable as of July 19, 2002. It found that the sub-division development should be assessed under the current policy regime.
[4] The central issue before the LPAT was the proper interpretation of s. 22.1 of the Planning Act, R.S.O. 1990, c. P.13. Section 22.1 defines the term “request date” in the context of a developer requesting a change to the Official Plan. Section 22.1 applies to all provincial legislation and applies retroactively as well. The “Request Date” is relevant to the determination of the policy regime.
[5] PIC now seeks to leave to appeal the LPAT’s determination of the applicable policy regime.
[6] To grant leave, I must be satisfied that the ground of appeal raises a question of law, that there is reason to doubt the correctness of the LPAT’s decision on the question of law, and the question of law is of sufficient general or public importance to merit the Divisional Court’s attention.
[7] PIC says that the LPAT erred in law in its interpretation of s. 22.1. The City of Burlington (“City”) and Region of Halton (“Region”) oppose the motion. They say that the issues raised by PIC do not warrant the consideration by the Division Court.
[8] I agree with the City and Region. For reasons that follow, I refuse PIC’s motion for leave to appeal to the Divisional Court. The decision of the LPAT on the applicable policy regime is final.
FACTS
[9] The facts of this case are unique, span decades and are generally not in dispute. They are set out briefly below.
PIC’s “Eagle Heights” Development
[10] PIC proposes to develop approximately 102 hectares of land in the City of Burlington into a new sub-division called “Eagle Heights.” It will have approximately 900 units, along with an environmental protection area.
[11] In 1992, PIC submitted its first development application in relation to Eagle Heights. In 1996, by way of settlement with the City and the Region, PIC was permitted to develop 409 residential units on the property. No units were ever built.
[12] On September 7, 2001, PIC and the City signed a “Development Application Pre-Consultation Form” which indicated the various studies (“studies”) the City would require to process PIC’s anticipated application for re-designation of Eagle Heights to allow for an increase in the number of residential units.
The development application at issue
[13] On July 9, 2002, PIC submitted two applications for an official zoning plan amendment for Eagle Heights. The City refused to accept the applications on the grounds that they were incomplete; PIC had not provided the studies that had been identified and requested by the City in its Development Application Pre-Consultation Form.
[14] The provisions of the Planning Act, R.S.O. 1990, c.17, Sch. B, in force at the time, stated as follows:
22(4) A person or public body that requests an amendment to the official plan of a municipality or planning board shall provide the prescribed information and material to the council or the planning board.
22(5) A council or a planning board may require that a person or public body that requests an amendment to its official plan provide such other information or material that the council or planning board considers it may need.
22(6) Until a council or planning board has received the prescribed information and materials required under subsection (4) and any fee under section 69,
(a) The council or planning board may refuse to accept or further consider the request for an amendment to its official plan; and
(b) The time periods referred to in clauses 7(a) to (d) do not begin.
22(7) A person or public body that requests an amendment to the official plan of a municipality or planning board may appeal to the Municipal Board in respect of all or part of the requested amendment by filing a notice of appeal with the clerk of the municipality or the secretary-treasurer of the planning board if, […]
(c) the council or the planning board fails to adopt the requested amendment within 90 days after the day the request is received.
[15] Rather than providing the studies listed in the Development Application Pre-Consultation Form, PIC took the position that the City’s refusal to accept the applications triggered its appeal rights under then-s. 22(7).
[16] PIC argued that, on a plain reading of then-s. 22(7), it was clear that the City did not have the authority to reject an application based on an applicant’s failure to provide information requested under s. 22(5). The City disagreed and refused to forward PIC’s applications to the Ontario Municipal Board (“OMB”, the pre-cursor to the LPAT).
Related court proceedings
[17] PIC applied to the Superior Court of Justice for relief. In Paletta International Corp. v. Burlington (City), 2003 49301 (ON SC), [2003] O.J. No. 1285, Lofchik J. found in favour of PIC. At para. 10, the court stated as a fact that “the applicants have filed the prescribed information and material to the City of Burlington but have refused to provide such other information and material as the City of Burlington requested pursuant to s. 22(5).” Based on the provisions of the Planning Act in force at the time, the Court held that the City did not have the authority to refuse an application based on the applicant’s refusal to file materials requested under s. 22(5).
[18] In 2004, the Court of Appeal for Ontario affirmed the Superior Court decision and dismissed the City’s appeal. Shape J.A. stated that:
It is common ground that the respondents provided the appellant with all the prescribed information and material in compliance with s. 22(4) and that the appellant required further information pursuant to s. 22(5). It is also common ground that the appellant’s demand for further information was reasonable and that the information required was relevant to the planning decision the council was asked to make. [emphasis added]
[19] The Court stated that this was the only conclusion available on the clear wording of the legislation. However, cognizant of the broader policy implications of its decision, the Court went on to acknowledge that “this interpretation effectively short-circuits the process of public meetings at the local level by permitting applicants to appeal directly to the OMB without first providing council with required information.” The Court of Appeal suggested that PIC’s attempt to circumvent the City planning process could be addressed by the OMB:
The respondents are entitled to appeal to the OMB but it will be for the OMB to decide what effect, if any, it ought to give the respondent’s refusal to comply with the council’s request. In view of the broad statutory powers conferred upon the OMB, it would certainly be within the OMB’s discretion to return the application to council with its direction.
[20] In compliance with the court’s order, the City forwarded PIC’s applications to the OMB. PIC’s OMB matters are now before the LPAT.
Events since 2004
[21] This matter has been before the OMB/LPAT since 2004.
[22] In 2006, the Legislature amended s. 22(6) of the Planning Act to expressly state that failure to provide material requested under s. 22(5) was grounds for council to refuse to accept the amendment request and prevented an appeal to the OMB until the requested information was provided. (The parties agree that s. 22(6) does not apply to PIC’s application because it does not apply retroactively.)
[23] In 2007, PIC submitted revised applications for Eagle Heights that increased the density to 870 residential units.
[24] The City brought a motion before the LPAT for disclosure of the studies. On June 9, 2009, to resolve the City’s motion, the parties entered into Minutes of Settlement (MOS) that required PIC to provide the studies requested by the City.
[25] In December 2010, PIC submitted a further revised application, again for 870 units, which now included the studies enumerated and outlined the MOS.
[26] On December 3, 2015, the Legislature amended the Planning Act again, this time to provide that:
22.1 A reference, in any Act or regulation, to the day on which a request for an official plan amendment is received shall be read as a reference to the day on which the council or planning board received the information and material required under subsection 22(4) and (5), if any, and any fee under section 69.
[27] In September 2018, PIC submitted a revised application to the City; it now proposed 914 units for Eagle Heights. It submitted additional studies between September 2018 and February 2019.
[28] Throughout this period, in correspondence between the parties, PIC maintained its position that Eagle Heights should be assessed against the policy regime in place when it first submitted is application on July 9, 2002.
[29] The City disagreed. It said that the sub-division should be assessed against the 2010 policy regime based on the date that PIC provided the studies. In support of its position, the City relied on the retroactive application of s. 22.1 of the Planning Act, and the MOS executed by the parties.
PIC’S MOTION FOR PARTICULARS BEFORE THE LPAT
[30] In July 2019, at a pre-hearing conference with the LPAT, the parties agreed to schedule a motion for directions to determine the applicable policy regime.
[31] The LPAT motion was heard by videoconference on February 27, 2020. The central issue was the proper application of s. 22.1 to PIC’s applications for an official plan amendment in relation to Eagle Heights. The LPAT had to apply s. 22.1 retroactively to determine the proper “request date” for its application. The “request date,” in turn, was relevant to determining the policy regime.
[32] PIC argued that the Eagle Heights development should be assessed against the 1997 policy regime because the Court of Appeal had found that the request date was July 19, 2002, and because s. 22.1 of the Planning Act did not operate to change a request date determined by the Court of Appeal.
[33] In the alternative, PIC argued that the City had not properly requested the studies pursuant to s. 22(5). It submitted that, in 2001, when the parties signed the Development Application Pre-Consultation Form, City staff did not have properly delegated authority to request studies on behalf of Council. PIC says that Regional By-Law (No. 17-99) (“Regional By-Law”) could not bind City council because it did not comply with municipal law: Municipal Act, R.S.O. 1990, c.M. 45, s. 101(1); Municipal Act, 2001, s. 5.
[34] In response, the City argued that PIC’s application should be assessed against the 2010 policy regime. The City says that, because s. 22.1 applied retroactively, the “request date” was December 2010 (i.e., the date on which the City received the studies it had requested pursuant to s. 22(5) in 2001). The City maintained that the Regional By-Law allowed city planning staff to request studies on behalf of Council.
[35] In the alternative, the City argued that the applicable policy regime was the one in place in 2009 when the parties signed the MOS which bound PIC to provide studies.
[36] The Region agreed with the City that the “request date” for the purposes of applying the transition provisions in the Planning Act was December 2010. However, it argued that, in the absence of specific transition rules directing that an earlier version of the Planning Act be applied, Eagle Heights be assessed against the current 2014 policy regime.
[37] The Halton Region Conservation Authority and the Niagara Escarpment Commission generally supported the City and Region’s position on the motion for directions but did not take an active role in arguments before the LPAT.
THE LPAT DECISION
[38] The LPAT issued its decision and 75-paragraph reasons on April 30, 2020. It applied s. 22.1 of the Planning Act to find that the relevant “request date” was December 2010, which was the date on which PIC provided the studies that the City requested pursuant to s. 22(5).
[39] However, after applying the Planning Act provisions as a whole and noting the competing policy considerations at the heart of the dispute, the LPAT found that the current 2014 policy regime should apply to the assessment of the Eagle Heights development. The LPAT stated that the “Appellant’s applications shall be assessed under the current Planning Act; the Growth Plan; the Green Belt Act; the 2014 Provincial Policy Statement, the Niagara Escarpment Plan, Official Plan and all applicable policies, plans, guidelines and regulations.
[40] The LPAT decision is discussed in more detail below.
THE MOTION FOR LEAVE TO APPEAL
[41] PIC now seeks leave to appeal the LPAT’s finding regarding the applicable policy regime to the Divisional Court. It argues that the LPAT erred and that its Eagle Heights project should be assessed against the 1997 policy regime.
[42] The parties appeared before me on March 24, 2021 for a seven-hour hearing. They provided voluminous motion records, detailed factums, books of authority, and bills of costs. Their arguments were helpful and sophisticated.
[43] PIC argues that the LPAT committed legal errors in its interpretation of s. 22.1 of the Planning Act, and in its application of the rules of natural justice and procedural fairness. PIC argues that the questions of law raised have "far reaching implications” for land use planning in Ontario because the LPAT decision is the first to apply s. 22.1 of the Planning Act, and because it raises broader questions about the legal means by which council can delegate planning decisions to city staff.
[44] The City and Region say that the LPAT’s decision was both correct and reasonable. They say that PIC cannot meet the well-established test for leave to appeal because the core issues are of mixed fact and law, and because the issues are not of general or public importance.
THE TEST FOR LEAVE TO APPEAL
[45] Under s. 37(1) of the LPATA, “an appeal from the LPAT may be made to the Divisional Court with leave solely on a question of law.” The Divisional Court has no jurisdiction to consider questions of fact, questions of mixed fact and law, or questions regarding the exercise of the LPAT’s discretion: CAMPP Windsor Essex Residents Association v. Windsor (City), 2020 ONSC 4612 (“CAMPP”) at para. 3. The Divisional Court, at para. 30, explained that:
It is well understood that planning matters involve policy decisions as much or more than legal ones. It is not the role of the court to balance competing policies, weigh subjective aesthetics or to make the political compromises that underlie planning decisions. The Legislature has assigned to the LPAT alone, the task of balancing factual and policy considerations underlying planning decisions. The role of the court is limited to ensuring that when the LPAT exercises its exclusive decision-making authority, it applies the proper legal principles. (emphasis added)
[46] As articulated in CAMPP, at para. 31, the test for leave requires me to be satisfied that:
(a) the proposed ground of appeal raises one or more questions of law;
(b) there is reason to doubt the correctness of the Tribunal’s decision with respect to the question(s) of law raised; and
(c) the question of law is of sufficient ‘general or public importance’ to merit the attention of the Divisional Court.
In applying the criteria, I must consider the totality of the LPAT’s decision.
[47] At para. 32 of CAMPP, Verbeem J. provided further guidance on criterion (a), stating that: “Applying the law, as interpreted, to the facts, as found, is quintessentially a question of mixed fact and law. Absent an extricable legal error in the interpretation or application of the law, the result of such an exercise is not fodder for an appeal brought pursuant to s. 37 of the LAPTA.” The court cautioned at para. 33 that: “in determining whether a proposed ground of appeal raises a question of law, the factual findings of the LPAT are entitled to a very high degree of deference.”
[48] In contrast, when considering criterion (b), Verbeem J. noted that a “reason to doubt” the correctness of the LPAT’s decision “does not require a finding that the Tribunal’s decision is ‘wrong’ or ‘unreasonable,’ or even that it is probably so. It is sufficient that the moving party demonstrate that the legal issues that are engaged, are open to ‘very serious debate.’
[49] Finally, in relation to criterion (c), at para. 38, the Divisional Court in CAMPP stated that a question of law will only be of “sufficient general or public importance” if the identified legal issue, in and of itself, is of such importance as to warrant the attention of the Divisional Court. For example, I might consider “the frequency with which the particular legal issue arises and whether the issue has an effect for most municipalities in Ontario.” I do not need to consider, however, the importance of the legal issue to the parties themselves or even to the eventual use of the land in question.
PIC HAS NOT MET THE TEST FOR LEAVE
[50] I find that the LPAT’s determination of the “request date” was an issue of mixed fact and law and is not subject to appeal. The Tribunal’s determination of the applicable policy regime was discretionary and cannot be appealed to this Court.
[51] From paragraphs 57 – 62, the LPAT relied on the following facts in his interpretation and application of s. 22.1 to the matter at hand, that:
• PIC was on notice, as of September 2001, that the City would require studies to process their application to increase the density of Eagle Heights;
• The Court of Appeal stated in 2004 that it was “common ground” between the parties that the City’s demand for information was reasonable and relevant to Council’s planning decision;
• The MOS signed by the parties on June 9, 2009 bound PIC to provide studies to the City and that PIC had it complied fully with the terms of the MOS;
• PIC continued to provide the City with studies until as late as February 2019; and
• PIC’s revised application contemplated more than double the number of residential units than it had applied for in 2001.
[52] The issue before the Tribunal was clearly one of mixed fact and law. I reject PIC’s argument that the LPAT committed an error of law because the City staff did not have the proper delegated authority to request studies on behalf of Council back in 2001. PIC asks me to analyze a decades-old by-law to determine whether it appropriately delegated Council’s functions.
[53] I refuse to go down this road. PIC is essentially trying to turn an admitted collateral fact into a ground of appeal. In my view, the LPAT rightly rejected the invitation to open-up long-settled factual issues. Before s. 22.1 was enacted, PIC accepted the City staff’s authority to ask for information pursuant to s. 22(5). It never asked City staff to prove their legal authority to request studies on behalf of Council. Quite to the contrary, PIC’s entire argument before the Superior Court of Justice and Court of Appeal was premised on the City making a proper request under s. 22(5).
[54] Allowing PIC to reopen a key factual issue under the guise of a legal issue on appeal could easily result in an abuse of process. The Divisional Court will be asked to make a legal finding that would disrupt the factual foundation underlying the Court of Appeal’s 2004 decision: Wright v. Urbanek, 2019 ONCS 823 at paras. 8-12.
[55] If PIC had wanted to challenge the City’s authority to request information on behalf of Council, it could have done so before the Superior Court of Justice back in 2003. It did not pursue this line of argument and it is too late to do so now. It is not in the interests of justice to allow these proceedings to devolve into an endless game of revisiting the legality, import, and effect of routine steps taken by a City planner back in 2001.
[56] I also find that I have no authority to review the LPAT’s discretionary decision to apply the current policy regime to the Eagle Heights development. To justify its decision, the Tribunal member invoked overarching policy considerations set out in s. 3 of the Planning Act. He noted that the plan for Eagle Heights had changed significantly since 2010, such that PIC’s revised application now contemplated more than double the number of residential units than it had first applied for in 2001.
[57] Finally, I find that the issues raised on appeal are not of sufficient importance to justify a hearing by this court. While it is true that s. 22.1 is a relatively new provision that has not been subject to judicial interpretation, the unique facts of this case mean that any Divisional Court decision is unlikely to provide guidance relevant to other cities, conservations areas, or developers.
[58] PIC has not satisfied me that it meets the test for leave to appeal to the Divisional Court.
DISPOSITION AND COSTS
[59] PIC’s motion is dismissed.
[60] As the unsuccessful party, PIC shall pay the costs of the City and Region on a partial indemnity basis.
[61] I note that the Region claims costs that are three-times the amount claimed by the City, despite its position being complementary if not duplicative. This is not reasonable.
[62] Within 30 days, PIC shall pay the City $8000, inclusive of disbursements and HST.
[63] Within 30 days, PIC shall pay the Region $8000, inclusive of disbursements and HST.
Mandhane J.
Released:April 6, 2021
CITATION: Paletta v. Burlington et al, 2021 ONSC 2565
DIVISIONAL COURT FILE NO.: DC-20-00343
DATE: 2021 04 06
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JUSTICE MANDHANE
BETWEEN:
Paletta International Corp.
- and -
The Corporation of the City of Burlington, The Regional Municipality of Halton, Halton Region Conservation Authority and Niagara Escarpment Commission
REASONS ON MOTION FOR LEAVE TO APPEAL TO THE DIVISIONAL COURT brought pursuant to s. 37 of the Local Planning Appeal Tribunal Act, 2017, S.O. 2017, c. 23, Sched. 1
Mandhane J.
Released:April 6, 2021