Town of Caledon v. MJJJ Developments Inc., 2022 ONSC 5323

CITATION: Town of Caledon v. MJJJ Developments Inc., 2022 ONSC 5323

COURT FILE NO.: DC-21-37

DATE: 2022 09 21

ONTARIO SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT

RE: The Corporation of the Town of Caledon, Moving Party

AND:

MJJJ Developments Inc., Dig-Con International Limited, Mars Canada Inc, Ontari Holdings Ltd., Boltcol Holdings South Inc. and Boltcol Holdings North Inc., Respondents

BEFORE: Doi J.

COUNSEL: Chris Barnett and Evan J. Barz, for the Moving Party, The Corporation of the Town of Caledon

Jennifer Meader, for the Respondents, MJJJ Developments Inc. & Dig-Con International Limited

HEARD: June 13, 2022

ENDORSEMENT

Overview

[1] The Town of Caledon (“Town”) seeks leave to appeal from the decision of the Ontario Land Tribunal (“Tribunal”) dated October 22, 2021 (“Decision”) that allowed an appeal by MJJJ Developments Inc. (“MJJJ”) from the Town’s decision to deny its applications for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) to allow a hot mix asphalt plant to be built on property known municipally as 12415 Coleraine Drive (“Subject Site”).

[2] In its Decision, the Tribunal allowed MJJJ’s appeal and approved the OPA and ZBA applications (together, “Applications”) to allow a hot mix asphalt plant (“HMA Plant”) on the Subject Site, subject to certain conditions being fulfilled solely as it relates to the Zoning By-law.

[3] On this motion for leave to appeal, the Town claims that the Tribunal committed an error of law by applying the wrong legal test under ss. 3(5) of the Planning Act and ss. 14(1) of the Places to Grow Act, 2005, SO 2005, c. 13, respectively, by stating in two (2) places in its Decision that the OPA and the ZBA applications (“Applications”) “conform with [the] purpose and intent” of the Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”) rather than stating that the applications “conform with” the Growth Plan. In other parts of its Decision, the Tribunal did state its finding that the OPA and ZBA conform with the Growth Plan.

[4] Having considered the entire Decision as a whole and the unique context of this specific case, I am satisfied that the motion for leave should be dismissed as there is no reason to doubt the correctness of the Decision of the Tribunal.

Exercise of Discretion to Give Reasons

[5] Ordinarily, the Divisional Court’s practice is not to give reasons when granting or refusing leave to appeal: The Regional Municipality of Waterloo v. Grerei Investment Limited, 2020 ONSC 5613 (Div Ct) at paras 6-9; Westhaver Boutique Residences Inc. v. Toronto, 2020 ONSC 3949 (Div Ct) at para 2; Lokhandwala v. Khan, 2019 ONSC 6346 (Div Ct) at para 2. It is ultimately in the discretion of a Divisional Court judge deciding a motion for leave to appeal to give reasons, although this discretion is exercised sparingly: Waterloo at para 10, Westhaver at para 4.

[6] On this motion, the Town is seeking leave to appeal a final decision in a development matter that was strongly contested before the Tribunal. In the circumstances, I find that it would be appropriate to give reasons so the parties and others impacted by the Decision may understand the reasons for denying the Town the opportunity to bring an appeal before the Divisional Court.

Background

[7] The background facts are not in dispute.

[8] MJJJ seeks to construct an unenclosed hot mix asphalt plant (“HMA Plant”) at the Subject Site which is located in an industrial park within the Bolton community of the Town. To have an HMA Plant on the Subject Site, MJJJ appealed to the Tribunal for required amendments to the Town’s Official Plan (“Town OP”) and Zoning By-law (Town ZBL”) by seeking to:

a. amend the Town OP by redesignating the approximate eastern two-thirds of the Subject Site to General Industrial from its existing designation as Prestige Industrial (the “OPA”); and

b. except the approximate eastern two-thirds of the Subject Site from the requirements to the Town ZBL by specifically permitting the proposed unenclosed asphalt plant use, since it is a town-wide prohibited use under the Town ZBL (the “ZBA”).

[9] The Town, whose Council refused to approve the OPA and ZBA applications by MJJJ, opposed MJJJ’s appeals to the Tribunal from the Town’s refusal. In addition, the following entities obtained party status at the hearing to oppose MJJJ’s OPA and ZBA applications:

a. Ontari Holdings Ltd., BoltCol Holdings South Inc. and BoltCol Holdings North Inc. (“Ontari/BoltCol”), which are property owners and developers with significant land holding facing the Subject Site on the opposite side of Coleraine Drive; and

b. Mars Canada Inc. (“Mars”), a global food manufacturer that operates a food storage, warehousing, distribution and packaging facility that is immediately adjacent to the Subject Site.

[10] In advance of the appeal hearing, the Tribunal issued a Procedural Order dated January 5, 2021 to, among other things, frame the issues and govern the pre-exchange of evidence including witness statements. The Procedural Order contains an Issues List that was developed with the Town and the entities that opposed the OPA and ZBA applications (collectively “Opposed Parties”). Among other issues, Issue 3 was framed in the Issues List as follows:

3. Are the proposed Planning Applications in conformity with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019? In particular, but not limited to, Policy Sections 1.2.1, 2.1, 2.2.1, 2.2.5.1, 2.2.5.8, 2.2.7.1, 2.2.5.12, 3.2.1.2, 4.2.1, 4.2.4, 4.2.8 and 4.2.9.1(c). [Emphasis added]

[11] Policy 2.2.5.8 of the Growth Plan, which is listed under Issue 3 to the Issues List, states as follows:

The development of sensitive land uses, major retail uses or major office uses will, in accordance with provincial guidelines, avoid or where avoidance is not possible, minimize and mitigate adverse impacts on industrial, manufacturing or other uses that are particularly vulnerable to encroachment. [Emphasis added]

[12] The Tribunal heard the appeal over 21 days from February 3, 2021 to March 4, 2021. During the appeal hearing, the Tribunal received evidence from a number of witnesses including the following experts who testified in respect of the OPA’s and ZBA’s conformity or non-conformity with the Growth Plan:

a) Nick McDonald, the land use planner for the Town;

b) Glen Broll, the land use planner for Ontari/BoltCol;

c) Maria Gatzios, the land use planner for Mars; and

d) Paul Lowes, the land use planner for MJJJ.

The record for the appeal included thousands of pages of content.

[13] At the hearing, the Opposed Parties asserted that the “Mars Facility” to the south of the Subject Site was a sensitive land use. In addition, the planning witness for the Town, the planning witness for Mars Canada Inc. (“Mars”), and the air quality witness for Mars all took this position. MJJJ’s planning and air quality witnesses refuted these assertions. All of the planners called by the Opposed Parties spoke at length in their witness statements about sensitive land uses.

[14] Following the hearing, the parties filed written submissions on the issue of the OPA’s and ZBA’s conformity with the Growth Plan. MJJJ also filed reply submissions.

The Tribunal’s Decision

[15] On October 22, 2021, the Tribunal issued its decision (“Decision”) which allowed MJJJ’s appeals and approved the OPA and ZBA subject to certain conditions precedents being fulfilled solely in relation to the ZBA.

[16] The Tribunal addresses the Growth Plan in several parts of its decision.

[17] At the outset of the analysis part to the Decision, the Tribunal referred to the applicable legislative and policy tests by stating the following:

[17] In making a decision under the Planning Act (“Act”) with respect to the Appeals, the Tribunal must have regard to matters of provincial interest as set out in s.2 of the Act. The OPA and ZBA must be consistent with the Provincial Policy Statement, 2020 (“PPS”) and must conform with purpose and intent [sic] of the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). In addition, they must conform with the Peel Region Official Plan and the Town OP the proposal must represent good planning in the public interest. The Tribunal must have regard to the decision of Town Council, and the information considered by the Tribunal. [Emphasis added]

[18] In the last paragraph of the decision, the Tribunal stated the following in relation to the legislative and policy tests:

[135] Based on the aforenoted, the Tribunal finds that the proposed Official Plan Amendment and Zoning By-law Amendment each have regard to matters of provincial interest as set out in s. 2 of the Act. The OPA and ZBA are consistent with the Provincial PPS and conform with purpose and intent [sic] of the Growth Plan and conform with the Region Official Plan and the Town OP. The OPA and ZBA each represent good planning in the public interest. [Emphasis added]

[19] In addition, the following paragraphs from the Decision are relevant to this motion:

[41] … The Tribunal reviewed the written evidence and the testimony of the land use planners in the context of the OP, the Region OP, the PPS, and the Growth Plan.

[57] … The Tribunal determined that the HMA Plant conforms to the OP, PPS, and Growth Plan regarding minimum separation distances from Class II and Class III Industrial uses.

[112] It was submitted that the HMA Plant represents under-utilization of existing infrastructure which does not assist the Town in achieving the established density targets and therefore does not conform with the Policy regime.

[116] The Parties opposed to the HMA Plant submitted that it does not conform to the Policy Regime because it would negatively impact the existing prestige industrial businesses to the extent that they might move from the area.

[128] The Tribunal accepts Mr. Ferguson’s testimony regarding new leases and development applications for land in the vicinity of the HMA Plant. This is compelling evidence that the HMA Plant conforms with the policy regime policies which direct that new development cannot impair the Town’s ability to attract and maintain high quality employment and industrial uses and tenants. [Emphasis added]

[20] On February 16, 2022, the Tribunal dismissed three (3) requests made by the Town, Mars and Ontari/BoltCol, respectively, for the Tribunal to review its Decision of October 22, 2021.

Test on Motion for Leave to Appeal

[21] The test for granting leave to appeal is not in dispute.

[22] Subsections 24(1) and (3) of the Ontario Land Tribunal Act, 2021, SO 2021, c.4 Sch. 6 (“OLT Act”) provide as follows:

24(1) Unless another Act specifies otherwise, an order or decision of the Tribunal may be appealed to the Divisional Court, with leave of that court on motion in accordance with subsection (3), but only on a question of law.

(3) A person appealing an order or decision of the Tribunal shall give notice of the motion for leave to appeal to the Tribunal.

[23] Recently, Gomery J. in Frontenac Heritage Foundation v. Homestead Land Holdings Ltd., 2022 ONSC 3613 (Div Ct) at paras 33-35 summarized the test for leave to appeal as follows:

[33] Section 24(1) of Ontario Land Tribunal Act provides that an order of the Tribunal may be appealed to the Divisional Court, with leave of that court on motion, “but only on a question of law”. The scope for an appeal in s. 24(1) is essentially the same as that provided in s. 37(1) of the predecessor statute, the LPAT Act. The test for leave was most recently set out by the Divisional Court at para. 31 of CAMPP Windsor Essex Residents Association v. Windsor (City), 2020 ONSC 4612 (Div. Ct.). I adopt that test but would add that the question of law at issue must, to use the Supreme Court of Canada’s terminology in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, be “extricable”, that is, separate and distinct from any mixed question of fact and law.

[34] The party seeking leave must accordingly persuade the motion judge that:

(1) the proposed appeal raises one or more extricable questions of law; and

(2) if so, there is good reason to doubt the correctness of the Tribunal’s decision with respect to the question(s) of law raised; and

(3) if so, the question or questions of law are of sufficient “general or public importance” to merit the attention of the Divisional Court.

[35] If the moving party fails to meet the first part of the test, the analysis ends there. If the moving party establishes that the Tribunal’s decision contains one or more extricable errors of law, the court must consider the other two legs of the test.

[24] As ss. 24(1) of the OLT Act contains a strict privative clause that restricts appeals to the Divisional Court to questions of law, the Town’s motion for leave to appeal must raise a question of law: Frontenac Heritage at paras 33-35; CAMPP at para 32; My Rosedale Neighbourhood v. Dale Inc., 2019 ONSC 6631 (Div Ct) at para 3; 2072231 Ontario Limited v. The Corporation of the City of London, 2020 ONSC 4032 (Div Ct) at para 11; Snowden v. The Corporation of the Township of Ashfield-Colborne-Wawanosh, 2017 ONSC 6777 (Div Ct) at para 11; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras 36-37.

[25] The parties agree that the question of whether the Tribunal applied the correct legal test is a question of law: Toronto (City of) v. 445 Adelaide Street West Inc., 2022 ONSC 1471 (Div Ct) at paras 82-86 and 136-137; CAMPP at para 32; My Rosedale at para 10; IN8 (The Capitol) Developments Inc. v Building Kingston’s Future, 2020 ONSC 6151 at para 17.

Analysis

[26] As set out below, I find that the Tribunal correctly applied the applicable conformity test.

a. Question of Law

[27] There is no dispute that the issue of whether the Tribunal applied the correct legal test raises a question of law: Toronto (City of) at paras 82-86 and 136-137.

b. No Reason to Doubt the Correctness of the Tribunal’s Decision

[28] On balance, I find no reason to doubt the correctness of the Decision of the Tribunal.

[29] In considering the correctness of the Decision of the Tribunal, I am required to consider the whole of the Decision when read in its totality and not by assessing its fragmented parts in isolation. As Verbeem J. noted in CAMPP at para 37:

[37] An assessment of whether there is reason to doubt the correctness of the impugned decision with respect to the legal question raised must be made by considering it as a whole, while remaining mindful that the subject of an appeal is the Tribunal’s decision itself and not its reasons for decision. Doubt as to legal correctness must be based on the totality of the Tribunal’s decision, not one isolated paragraph or phrase. “It is not appropriate, when determining the issue of leave to appeal, to select fragments of the decision and parse them under microscopic scrutiny to the detriment of an overall analysis of the decision as a whole.” [citing Concerned Citizens of King (Township) v. King (Township), [2000] OJ No 3517 (Div Ct) at para 10.] [Emphasis added]

[30] Relying heavily on paras 17 and 135 of the Decision, the Town submits that the Tribunal’s reference to “purpose and intent” after stating the “must conform with” test in these two instances gives rise to an error of law that warrants leave to appeal being granted.[^1] For convenience, paras 17 and 135 of the Decision are again reproduced as follows:

[17] In making a decision under the Planning Act (“Act”) with respect to the Appeals, the Tribunal must have regard to matters of provincial interest as set out in s.2 of the Act. The OPA and ZBA must be consistent with the Provincial Policy Statement, 2020 (“PPS”) and must conform with purpose and intent [sic] of the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). In addition, they must conform with the Peel Region Official Plan and the Town OP the proposal must represent good planning in the public interest. The Tribunal must have regard to the decision of Town Council, and the information considered by the Tribunal.

[135] Based on the aforenoted, the Tribunal finds that the proposed Official Plan Amendment and Zoning By-law Amendment each have regard to matters of provincial interest as set out in s. 2 of the Act. The OPA and ZBA are consistent with the Provincial PPS and conform with purpose and intent [sic] of the Growth Plan and conform with the Region Official Plan and the Town OP. The OPA and ZBA each represent good planning in the public interest. [Emphasis added]

[31] However, doubt as to the correctness of the Decision should not be determined by isolating these two parts and considering them in isolation: CAMPP at para 37; Paletta v. Burlington, 2021 ONSC 2565 (Div Ct) at para 46. The totality of the Decision must be considered as a whole.

[32] The Tribunal clearly stated the correct test when it found that the HMA Plant (i.e., as set out in the OPA and ZBA applications) “conforms to” the Growth Plan, as set out in para 57 of the Decision which states:

[57] … The Tribunal determined that the HMA Plant conforms to the OP, PPS, and Growth Plan regarding minimum separation distances from Class II and Class III Industrial uses. [Emphasis added]

Given this finding in the Decision (i.e., which tracks the language used in the Procedural Order to frame the conformity test for the hearing), along with the balance of its analysis as discussed below, I am satisfied that the Tribunal correctly applied the applicable conformity test in the Decision.

[33] The Town concedes that the Tribunal seems to have correctly framed the conformity test for the Growth Plan in para 57 of its Decision. However, the Town submits that this portion of the Decision considers sensitive land uses under policy 2.2.5.8 of the Growth Plan that does not apply to the OPA and ZBA and, therefore, does not redeem its misstatement of the conformity test elsewhere in the Decision. Respectfully, I am not persuaded by this submission. The Opposed Parties, including the Town, specifically raised the sensitive land uses issue and invoked policy 2.2.5.8 of the Growth Plan to assert before the Tribunal that the Mars Facility was a sensitive land use. Understandably, the Tribunal addressed the sensitive land uses issue in its Decision.

[34] At para 128 of the Decision, the Tribunal set out its finding that the OPA and ZBA conform with “the policy regime” (i.e., which clearly includes the Growth Plan) in the following passage:

[128] The Tribunal accepts Mr. Ferguson’s testimony regarding new leases and development applications for land in the vicinity of the HMA Plant. This is compelling evidence that the HMA Plant conforms with the policy regime policies which direct that new development cannot impair the Town’s ability to attract and maintain high quality employment and industrial uses and tenants. [Emphasis added]

In making this finding, the Decision is clearly addressing the third issue in the Procedural Order, namely “[a]re the [OPA and ZBA] in conformity with [the] Growth Plan”, which the Tribunal had issued to guide the preparation of evidence and submissions for the hearing.

[35] I am persuaded that the Tribunal’s use of the words “purpose and intent” in its conformity analysis was directly responsive to the specific evidence given by witnesses at the hearing, including a witness for the Town, on whether the OPA and ZBA conform with the Growth Plan. In his evidence, the Town’s planning witness, Nick McDonald, did not provide a policy-by-policy analysis of the OPA and ZBA against the Growth Plan, but instead gave a ‘Summary of Opinion’ in his Witness Statement to address what he saw as the key issues for adjudication which focussed almost entirely on the Town’s Official Plan. Towards the end of the Summary of Opinion section in his Witness Statement, Mr. McDonald recited the conformity test for the Growth Plan.

[36] In a separate part of his Witness Statement, Mr. McDonald addressed the Growth Plan and specifically the Growth Plan policies found in the Issues List which the Tribunal included in its Procedural Order for the hearing. In the entire Growth Plan section of Mr. McDonald’s Witness Statement, which considers just the policies in the Issues List, there is a single instance where he opines that the OPA and ZBA do not conform to one specific policy of the Growth Plan. In other parts of his statement, he indicates that there is “no policy test” associated with a particular policy. In one instance, he opines that the OPA and ZBA “do not align with the goals” of a particular policy. In another, he indicates that alternative development options would be “more supportive” of achieving certain goals in the Growth Plan. In addition, there are several instances where he opines that certain policies in the Issues List are not applicable to the OPA and ZBA.

[37] Given Mr. McDonald’s opinions on the Grown Plan as set out in his Witness Statement, I am satisfied that the language used by the Tribunal in its Decision was influenced by his evidence for the hearing. In my view, the Tribunal’s finding that the OPA and ZBA “conform with the intent and purpose” of the Growth Plan was directly responsive to his specific opinion evidence about the Growth Plan. As a result, I am satisfied that the Tribunal’s use of the words “intent and purpose” in addressing the conformity test for the Growth Plan was evidence-driven and appropriate in the unique context of this particular case.

[38] In the circumstances of this case, I find no meaningful distinction between the Tribunal’s findings on the conformity test and the language in the Planning Act or the Places to Grown Act, 2005. The Tribunal considered the conformity of the OPA and ZBA against the Growth Plan as a whole, as the plan itself required: Growth Plan, Policy 1.2.3 at p. 8. If a planning application conforms with a policy document, then it conforms with the purpose and intent of the document. In my view, the Tribunal’s use of “purpose and intent” in its Decision in reference to the Growth Plan was akin to referring to the plan’s policies and objectives that did not detract from the conformity test in arriving at its Decision under ss. 3(5)(b) of the Planning Act and ss. 14(1) of the Places to Grow Act, 2005.

[39] The Town submits that the Decision’s application of the conformity test for the Growth Plan is analogous to the error of law which the Divisional Court found in Toronto (City of) v. R&G Realty Management Inc., 2009 42397 (Div Ct). However, R&G Realty is distinguishable from this case. In R&G, the Ontario Municipal Board considered whether the applications before it “had regard” for the Provincial Policy Statement (“PPS”) but the Planning Act required applications to be “consistent with” the PPS. Both were distinct tests under the Planning Act. Importantly, the previous PPS test was the “have regard to” standard before the Legislature amended it to a “shall be consistent with” threshold to impose a higher standard as the Divisional Court observed at para 21 of R&G Realty:

[21] It is worth noting that this provision has undergone various revisions over the years. The current wording requiring consistency with the provincial policy statements came into force in March 2005. Prior to that, the section merely required decision makers to “have regard to” provincial policy statements. The use of the words “shall be consistent with” in s. 3(5), as contrasted to the “have regard to” language used in other sections of the Act and in prior versions of this very provision, is a strong indication that the Legislature intended a higher standard for adherence to provincial policy statements. OMB decisions are required to follow such policies, not merely take them into account. [Emphasis added]

[40] As MJJJ submits, for R&G Realty to be truly analogous to the instant case, the Ontario Municipal Board would have stated that the applications were ‘consistent with the purpose and intent of the PPS’ which is not what the Divisional Court considered in that case.

[41] In any event, having considered the full Decision in its entirety (i.e., including the analysis at paras 57 and 128) in light of the evidence that the Tribunal considered and the language used in its Procedural Order of January 5, 2021 to frame the issue of whether the OPA and ZBA conformed to the Growth Plan, I am satisfied that the Tribunal was well aware of the correct conformity test and applied it properly in deciding the case. In my view, these factors further distinguish this case from the situation that arose in R&G where none of these factors were present and the Divisional Court found that the OMB had been unaware of the correct test to apply: R&G at para 23.

[42] For these reasons, I find that the Tribunal’s inclusion of the words “purpose and intent” in the Decision did not erode the conformity test or result in an error of law. The Tribunal considered the conformity of the OPA and ZBA against the Growth Plan as required. Accordingly, I am satisfied that there is no good reason to doubt the correctness of the Decision by the Tribunal.

c. There is No Legal Question of Sufficient Importance

[43] In CAMPP at para 38, Verbeem J. commented on the third branch of the test for leave

[38] The determination of whether the question of law raised by a proposed ground of appeal is of “sufficient general or public importance to merit the attention of the Divisional Court”, is a function of the nature of the legal issue engaged by the proposed ground, as opposed to the specific parties or the specific property involved. The identified legal issue, itself, must be of sufficient importance to justify leave. The asserted error of law must concern a matter that it is of general public importance or that is otherwise important to the development of the law and administration of justice. As a result, the determination of whether this analytical criterion is met may engage considerations of the frequency with which the particular legal issue arises and whether the issue has an effect for most municipalities in Ontario. [citing Ontario (Legislative Assembly) v. Avenue-Yorkville Developments Ltd., 2011 ONSC 258 (Div Ct) at para 37; Snowden v. The Corporation of the Township of Ashfield-Colborne-Wawanosh, 2017 ONSC 6777 (Div Ct) at para 11.]

[44] As I have found that there is no good reason to doubt the correctness of the Tribunal’s decision, it is unnecessary for me to decide whether the proposed appeal raises a question of law of sufficient importance to warrant the attention of the Divisional Court. Regardless, I am satisfied that the proposed appeal does not raise an issue of general or public importance, or relate to the development of the law or the administration of justice. The basis of the proposed appeal is the Tribunal’s use of the words “purpose and intent” in two places but not other parts of its Decision in addressing conformity with the Growth Plan. Further, the Tribunal’s findings emanate from its procedural directions that framed the issues for the hearing, and address the particular evidence which the parties tendered at the hearing. In turn, I accept that the circumstances giving rise to the proposed appeal are case-specific and unlikely to occur frequently or impact other municipalities and, therefore, need not be considered by the Divisional Court.

[45] The Town submits that the Divisional Court ought to adjudicate this matter to confirm that provincial tribunals, including the recently created Tribunal, are required to correctly apply the provisions of the enabling legislation which grants them jurisdiction. However, it is already a very clear and settled principle that the Tribunal, like other tribunals, must correctly apply legislation and comply with legislative requirements in making decisions: Vavilov at para 108, citing Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 at para 15. Accordingly, I am satisfied that Divisional Court resources should not be used in this matter to confirm such an established principle, particularly as the Tribunal fulfilled this requirement in this case.

Outcome

[46] Based on the foregoing, the motion for leave to appeal is dismissed.

[47] The Town shall pay MJJJ for its costs of the motion in the agreed amount of $15,000.00, inclusive of taxes and disbursements.

[^1]: In footnote 35 of its Factum, the Town argued that the Tribunal made other legal errors by misstating the test for conformity with the Town Official Plan. However, the Town raised none of these grounds in its Notice of Motion. Accordingly, as these grounds were not properly before the court, I did not consider them in determining the motion. In any event, it is commonly understood that in cases when an application seeks to amend an applicable official plan, as the subject Applications in this case sought to do by way of the OPA and ZBA, respectively, the application inherently does not conform with the official plan that it proposes to amend. In such a case, the Tribunal is to consider whether the application meets the intent and purpose of the official plan. This is what the Tribunal considered in this case in respect of the Official Plan designations and policies being amended by the Applications.

Doi J.

Date: September 20, 2022

CITATION: Town of Caledon v. MJJJ Developments Inc., 2022 ONSC 5323

COURT FILE NO.: DC-21-37

DATE: 2022 09 20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Corporation of the Town of Caledon, Moving Party

AND:

MJJJ Developments Inc., Dig-Con International Limited, Mars Canada Inc, Ontari Holdings Ltd., Boltcol Holdings South Inc. and Boltcol Holdings North Inc., Respondents

BEFORE: Doi J.

COUNSEL: Chris Barnett and Evan J. Barz, for the Moving Party, The Corporation of the Town of Caledon

Jennifer Meader, for the Respondents, MJJJ Developments Inc. & Dig-Con International Limited

ENDORSEMENT

Doi J.

DATE: September 20, 2022