2541005 Ontario Ltd. v. Oro-Medonte (Township), et al., 2023 ONSC 5569

CITATION: 2541005 Ontario Ltd. v. Oro-Medonte (Township), et al., 2023 ONSC 5569

DIVISIONAL COURT FILE NO.: DC-23-00001376-00ML

DATE: 20231005

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

IN THE MATTER OF a motion for leave to appeal pursuant to s. 24(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, from a decision of the Ontario Land Tribunal dated March 13, 2023

AND IN THE MATTER OF appeals to the Ontario Land Tribunal pursuant to s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13

RE: 2541005 Ontario limited, Moving Party

AND:

THE TOWNSHIP OF ORO-MEDONTE, ORO-MEDONTE COMMUNITY COALITION CORP. and 10982377 CANADA INC., Responding Parties

BEFORE: Christie J.

COUNSEL: Stephen C. Nadler, for the Moving Party

Andrea Skinner and Jasmine Fraser, for the Responding Party, The Township of Oro-Medonte

Marcia Taggart, Ariel Chih, and Brennyn Watterton, for the Statutory Party, Ontario Land Tribunal

No one appearing for the Responding Party, Oro-Medonte Community Corp.

No one appearing for the Responding Party, 10982377 Canada Inc.

HEARD: September 20, 2023

ENDORSEMENT ON MOTION FOR LEAVE

Overview

[1] This commenced as a motion by 2541005 Ontario Limited (“254”) for leave to appeal the review decision of Chair Michael Kraljevic of the Ontario Land Tribunal ("OLT") dated March 13, 2023 in OLT File No. OLT-22-002249 (the "Review Decision") and the Chair's order dated April 11, 2023 implementing the Review Decision (the "Review Order"). If granted, the Moving Party sought a stay of the Review Decision and associated Order pending the appeal to the Divisional Court.

[2] It is argued that the Chair failed to meet the most basic and minimum standards of procedural fairness and natural justice. 254 argued that this is not an interlocutory order, but rather a final decision. As a result, 254 argued that the Review Decision merits the attention of the Divisional Court.

[3] In an amended Notice of Motion filed the day before the hearing, in the event that the leave to appeal motion were denied, the Moving Party sought an order extending the time for them to make an application for judicial review of the Review Decision and its implementing order, to 30 days after the date of this Court’s decision on this motion. The Moving Party confirmed that this relief is only being sought if this Court were to deny the request for leave on the basis of the Review Decision being determined to be interlocutory or on the basis of prematurity.

[4] The Responding Party, The Township of Oro-Medonte (the “Township”), argued that the motion for leave to appeal should be dismissed on the basis of prematurity. It was argued that the most efficient and effective approach is to allow the Tribunal rehearing to proceed and, should any party wish to seek leave to appeal the rehearing decision, it may do so at that time. Alternatively, if this court determines that the motion is not premature, the Township submitted that 254 has not demonstrated that its motion meets the test for leave to appeal. As for the request to extend time to allow for judicial review, the Township argued that this should not be permitted at this late stage in the proceedings, as it does not conform with the Rules. They argued that the Moving Party had ample opportunity to raise this issue throughout the proceedings, such as when they brought their notice of motion, during the case management meeting, when they filed their factum, or even when they filed their reply factum.

[5] The Statutory Party, Ontario Land Tribunal (the “Tribunal”), argued that the Review Decision and Order are interlocutory in nature from which there is no right to appeal, as the Ontario Land Tribunal Act (“OLTA”) and the Tribunal's Rules of Practice and Procedure (“Rules”) provide the Tribunal with jurisdiction and power to review its decision and correct its own error to reach fair and efficient dispute resolution. Further, the Tribunal argued that deference is owed to the Chair’s exercise of discretion to grant a review, and that a lower level of procedural fairness is required in a review process which orders a re-hearing. The Tribunal submitted that the statutory scheme and Rules do not include a notice requirement or opportunity to make submissions. Finally, the Tribunal submitted that the appropriate remedy, even if an appeal were granted, would be to remit this matter back to the Tribunal, which is already scheduled to occur. As for the request to extend time to allow for judicial review, the Tribunal argued that this should not be permitted at this late stage in the proceedings, “as litigation is not to be conducted by instalment” as stated in Shearer v. Oz, 2021 ONSC 7844, at para. 5, as cited in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, para. 55.

Background Facts

[6] 254 owns a 250-acre farm property in the Township of Oro-Medonte. Its property consists entirely of prime agricultural lands and is zoned agricultural.

[7] Since January 2020, 254 has been leasing its farm property to Medical Saints Limited (“MSL”), a company licenced by Health Canada, for the purposes of outdoor growing of industrial hemp crops.

[8] On April 29, 2020, the Township passed Zoning By-law Amendment 2020-046 ("ZBLA") that restricted the growing of cannabis and industrial hemp crops, whether indoors or outdoors, to only two industrial zones in the Township (IR and ED zones), with a 150-metre setback from any "Sensitive Land Uses" in those industrial zones, and did not permit any such activities in the Township's agricultural zoned lands. The ZBLA changed the definition of “Agricultural Use” in the Township’s general zoning by-law to specifically exclude cannabis and hemp production.

[9] In May 2020, 254 and two other property owners in the Township, 10982377 Canada Inc. o/a Organibis ("109") and Carmel Pharms Corp. ("Carmel"), commenced separate appeals of the ZBLA to the Tribunal under section 34(19) of the Planning Act (Ontario), on the basis that the ZBLA was inconsistent with the Provincial Policy Statement, and did not conform to the Growth Plan or the County and Township Official Plans, as required by the Planning Act. The hearing of all three appeals was scheduled to commence in April 2022.

[10] Before the hearing of the appeals, one of the appellants, Carmel, entered into a site-specific settlement with the Township, and it brought a motion, on consent of the Township, for approval of its site-specific settlement. Carmel’s settlement approval motion was heard on the first day of the appeals hearing. The Tribunal approved the Carmel settlement, ultimately without opposition from 254 or 109, expressly on the basis that it was restricted only to Carmel's property, and would have no impact, and certainly no prejudice, on 254's and 109's ongoing appeals of the ZBLA regarding the balance of the lands in the Township.

[11] The Tribunal then heard 254's and 109's appeals of the ZBLA over the course of 10 days in a three-week period in April 2022. Seven witnesses testified, including four planning experts, one agrologist expert, and two lay witnesses. A community group, the Oro-Medonte Community Coalition Corp., was granted party status in the proceeding and called evidence at the hearing in support of the by-law.

[12] On January 25, 2023, approximately nine months following the completion of the hearing, the Tribunal issued a 36-page decision of 254's and 109's appeals of the ZBLA (the "Hearing Decision") which ordered the repeal of the Township’s by-law to regulate cannabis related land uses throughout the Township in its entirety. The Hearing Decision determined that the ZBLA was inconsistent with, and did not conform to, any of the public planning authorities, and was therefore in violation of the Planning Act. The Tribunal found that the by-law, in its entirety, was inconsistent with the Provincial Policy Statement, 2020, did not conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, did not conform with the County of Simcoe Official Plan, and did not conform with the Township Official Plan. As a result, the Tribunal granted 254's and 109's appeals and ordered the Township to repeal By-law No. 2020-046 in its entirety.

[13] On February 9, 2023, the Township served a Notice of Motion for leave to appeal the Hearing Decision to the Divisional Court (DC-23-1356-00ML), pursuant to section 24 of the OLTA, alleging that the Hearing Decision contained ten errors of law, including that the Tribunal:

a. applied the wrong legal test under the Planning Act;

b. improperly and unduly restricted the scope of municipal authority to pass a by-law regulating land use;

c. improperly fettered a local municipal council’s authority and jurisdiction under the Planning Act by failing to recognize a municipality’s right to pass a zoning by-law of this nature;

d. improperly fettered a local municipal council’s authority and jurisdiction under the Planning Act by not allowing a local municipal council to regulate and control the use of agricultural lands;

e. erred in law by contradicting the Planning Act;

f. improperly and incorrectly interpreted the PPS policies;

g. failed to consider the PPS as a whole;

h. erroneously relied on extrinsic evidence in its interpretation of the PPS policies;

i. exceeded its jurisdiction, in the course of rendering its decision on two contested site-specific appeals, when it directed the municipality to repeal By-law 2020-046 in its entirety.

[14] On February 24, 2023, the Township also requested that the Chair of the Tribunal review the Hearing Decision pursuant to s. 23 of the OLTA, which authorizes the Tribunal to review, rescind, or vary any order or decision made by it in accordance with s. 25 of the Tribunal’s Rules. The request for review was based on the same ten alleged errors of law, plus one additional alleged error of fact, which was that the Tribunal failed to recognize the Official Plan cannabis permissions. In the request for review, the Township raised questions about how two contested property specific appeals could have led to an order that the entire by-law be repealed. The request for review was over 100 pages in length, including legal submissions, an affidavit with facts and attachments, and the Notice of Motion for leave to appeal. The Township asked the Chair to hold their request for review in abeyance pending the outcome of the Township's leave to appeal motion and, if successful, appeal before the Divisional Court.

[15] On March 1, 2023, the Township emailed a courtesy copy of the request to review to the affected parties including 254, 109, the Coalition, and Tribunal counsel. None of the affected parties provided any response.

[16] The Chair did not hold the request for review in abeyance, as requested by the Township. On March 13, 2023, the Chair issued his 6-page Review Decision granting the Township's request for review. The Chair referred to the process that must be followed on a review, pursuant to Rule 25 of the Tribunal’s Rules of Practice and Procedure. The Chair provided some background to put the matter in context. The Chair summarized the grounds upon which the request for review was based and the relief being sought. After confirming that he had “carefully reviewed” everything that had been presented, he stated:

While intervention arising from a request for review is a rare and extraordinary remedy, I have concluded that the Request does raise a convincing and compelling case that there is an error in the Decision that is sufficient to warrant the exercise of my review powers which are authorized by Rule 25. My reasons as to this outcome and the manner of relief follow below.

Before going into those reasons, the Chair explained why he was not holding the request for review in abeyance and that “using the Tribunal’s review process in this instance would indeed be both the most fair and efficient mechanism”. The Chair’s decision was based on the conclusion that the Hearing Decision lacked sufficient reasons to support the order to repeal the entire By-law, which the Chair considered to be an error of law. The Chair noted that "I am not convinced the Tribunal properly grappled with the substance of the central issues in adjudicating the merits of the appeal." He further stated:

While the sufficiency of the Decision's reasons was not specifically questioned as an error of law in the Request, this was in my view an underlying issue in this Decision. I would note that insufficiency of reasons is an error of law. Reasons provided in a Decision must show that the Tribunal grappled with the substance of the central issues in dispute to explain the path taken by the Tribunal to reach its decision, with the caveat that the reasons do not need to discuss each landmark considered along the way to arrive at the final order.

…My reading of the Decision is that reasons were insufficient, and that the determination was made in the absence of evidence, which the Divisional Court has acknowledged is an error of law (see paragraph 33 of CAMPP Windsor Essex Residents Association v. Windsor (City), 2020 ONSC 4612).

Specifically, I would note that the Decision provided no justification in providing the relief that it did, in ordering the repeal of the entire ZBLA. Given the novel nature of the cannabis industry in Canada, the Decision, at minimum, should have included discussion of the consultation that led to the ZBLA. Further, I would note that this matter consisted of an additional settlement, which was approved by the same presiding Member. If the underlying concerns about inconsistency with the PPS and conformity with the Grown Plan, the County OP and the Township OP were determinative for this Member, the Decision should have addressed how a settlement of the ZBLA could have been approved in the related matter. This was foundational to the central issues in dispute, and I am convinced that this was not properly before the Tribunal.

Similarly, the Tribunal's cursory findings relating to the Growth Plan, County OP, and Township OP were inadequately explained. I agree with the Request that a finding of inconsistency with one policy of the PPS does not necessarily render a zoning instrument inconsistent or non-conforming with all the provincial and municipal plans. The Tribunal, in assessing the instrument, must consider the provincial and local policies as a whole and balance the competing policies, keeping the local circumstances of the community in view.

The Decision fails to demonstrate how it arrived at its findings on the basis of the evidence before it, or how it made the ultimate conclusion that it did, particularly when considering that the presiding Member approved a settlement agreement relating to the same ZBLA.

I therefore conclude that the Tribunal erred in law, contrary to Rule 25.7(c). This presents an error exceeding the high threshold set out in Rule 25.7. I therefore find that such an error warrants the exercise of my review powers under Rule 25.

The Chair made clear that, having decided the Review on this basis, he would not be deciding the merits of the other grounds mentioned in the Request. Based on those conclusions, the Chair ordered that the Hearing Decision be set aside in its entirety and that a rehearing of the appeals of 254 and 109, on their merits, take place anew before a new Tribunal. The Chair stated:

In the present circumstances, I have concluded that this is a rare instance in which it would be inefficient and unnecessary to convene a review motion. The error present in the Decision are fundamental, and cannot be addressed in a manner other than a rehearing. Therefore, the most efficient way to address the error described above is to set aside the Decision and proceed directly to a rehearing of the hearing on the merits.

For similar reasons, I have made the rare decision to grant this Request without first requesting responding submissions.

The Chair clarified that his decision to order a rehearing does not prejudge in any way what outcome will result from the rehearing.

[17] On April 11, 2023, the Tribunal issued an order of the Chair (the “Review Order”) implementing the Review Decision. The Review Order set aside and rescinded the Hearing Decision and ordered a re-hearing of the ZBLA appeals by a different Tribunal member.

[18] While the Township perfected its motion for leave to appeal the Hearing Decision on March 10, 2023, it has not yet proceeded with that motion given the Review Decision and Review Order of the Chair. This motion is still alive, however, pending the outcome of this matter.

[19] As encouraged by the Chair, the parties have continued settlement discussions. The Township and 109 reached a settlement which, upon approval by the Tribunal, resolved 109’s appeal, without prejudice to 254’s remaining appeal.

[20] As for 254, a case management conference is scheduled in December 2023 and a rehearing is presently scheduled for several days in July 2024.

Analysis

Interlocutory or Final

[21] The first question that this court must consider is whether the Review Decision / Review Order by the Chair is final or interlocutory.

[22] The Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 provides as follows in section 23 and 24:

Review

23 Unless another Act specifies otherwise, the Tribunal may review, rescind or vary any order or decision made by it in accordance with the rules.

Appeal

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.

The sections relating to review and appeal are notably one after the other.

[23] The Moving Party has referred this court to a number of decisions, arguing that this Court routinely hears and grants leave to appeal motions regarding review and reconsideration decisions of administrative tribunals. The following decisions are of note:

a. Watt v. Classic Leisure Wear Inc., 2008 5644 (ON SC) - The Appellants/Moving Parties sought leave to appeal the review decision of the Chair of the Ontario Municipal Board, denying the request to review an earlier decision of the Board regarding the use of a vacant lot. The review request was made without notice to the Respondents and consequently no responding material was submitted. The Court stated:

[16] When the Request is filed, the material is not served on the other parties. The Board may grant the request without submissions or may direct that a motion be heard on notice to the other parties. In this case, the Review Board issued the Review Decision refusing the request without directing a hearing or notice.

The Court granted leave to appeal the Review Decision only as it related to whether the Review Board erred in law by holding that the Original Board did not act outside its jurisdiction when deciding on an easement issue. Leave to appeal was not granted on any other grounds and the Court took no issue with the lack of notice.

b. British Columbia Old Age Pensioners’ Organization v. British Columbia Utilities Commission, 2017 BCCA 400 - The Applicants sought leave, under s. 101 of the Utilities Commission Act, to appeal the original decision and reconsideration decision of the British Columbia Utilities Commission. The Commission denied the reconsideration request finding the errors claimed had not been substantiated on a prima facie basis. In the result, the reconsideration application did not proceed to phase two and was not considered on its merits. The applications for leave to appeal were dismissed. However, the court stated:

[27] The Commission, BC Hydro and Fortis all submit that if leave is to be granted, it should only be from the Reconsideration Decision. The applicants do not seriously argue otherwise.

[28] This Court in Yellow Cab Company Ltd. v. Passenger Transportation Board, 2014 BCCA 329, set out the framework governing the determination of whether leave to appeal should be from a tribunal’s original or reconsideration decision. Where a party has taken advantage of a tribunal’s reconsideration power, and the tribunal has undertaken the reconsideration, the reconsideration decision represents the final decision of the tribunal and it is the decision which should be reviewed: Yellow Cab Company Ltd. at para. 40.

c. Taylor v. Aviva Canada Inc., 2018 ONSC 4472 - The dispute between the appellant and the respondent triggered a request to the Licence Appeal Tribunal for dispute resolution. An adjudicator at the Licence Appeal Tribunal agreed with the respondent, holding that the mishap was not an accident as defined in section 3 (1) of the Statutory Accident Benefits Schedule because the all-terrain vehicle was not an automobile. The appellant requested reconsideration of the adjudicator’s decision pursuant to Rule 18 of the Licence Appeal Tribunal Rules of Practice. At the same time, the appellant appealed the adjudicator’s decision to the court, pursuant to section 11 of the Licence Appeal Tribunal Act. The decision of the adjudicator was reconsidered by the Executive Chair of Safety, Licensing Appeals and Standards Tribunals Ontario. The Executive Chair cancelled the adjudicator’s decision and ordered that the matter be reheard. Both parties appealed the reconsideration decision. Taylor launched two appeals: the first from the adjudicator’s decision that the mishap was not an accident as defined in the Statutory Accident Benefits Schedule and the second from the reconsideration decision to require a rehearing rather than deciding whether the mishap was an accident as defined in the Schedule. Aviva asked the Divisional Court to set aside the decision and restore the decision of the adjudicator. Both appeals were dismissed. It is of note that in this case there was a right of appeal which was not restricted by a request for reconsideration of the same decision. The court noted:

[19] The fact that both an appeal and a request for reconsideration can proceed at the same time is, however, subject to the jurisprudence of this court. This court is reluctant to hear appeals from interim or interlocutory orders of administrative decision makers for the same reason that it is reluctant to hear judicial review proceedings before the administrative decision-making process has ended. Such appeals fragment the administrative proceeding and increase costs. Accordingly, courts have interpreted language that grants an appeal from a “decision or order” of a board or tribunal as limited to an appeal of a final order (see, for example, Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 5633 (ON SCDC), 66 O.R. (2d) 18 (Div. Ct.), at para. 26; and Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819, 285 O.A.C. 218 (Div. Ct.), at paras. 72-73). If a proceeding is “fatally flawed”, an interim or interlocutory decision might be challenged. However, at such a hearing, prematurity may still be raised by the opposing party, and the court may refuse to hear the matter (see, for example, Deutsche Bank Securities Limited v. Ontario Securities Commission, 2012 ONSC 1576, 295 O.A.C. 1 (Div. Ct.)).

The Court determined that the Chair’s decision to order a rehearing was reasonable.

d. Yerex v. CYM Toronto Acquisition LP, 2019 ONSC 2862 - The Appellant brought two motions: (1) a motion to set aside the order of Justice Myers; and (2) a motion for leave to appeal the reconsideration decision of the Local Planning Appeal Tribunal, denying the request for reconsideration. Both motions related to the Appellant’s efforts to appeal by-law amendments passed by the council of the City of Toronto. The motions were dismissed. With respect to the reconsideration, the Court found that there was no reason to doubt the correctness of the Reconsideration Tribunal on a standard of reasonableness or correctness.

e. Roozbuilt Ltd. v. Jamieson, 2022 ONSC 2029 – This was an appeal, with leave, from a decision of the Toronto Local Appeal Body, in which the TLAB’s Chair granted a review of a decision of a member of the TLAB and cancelled that decision. The issues on appeal were the fairness of the process adopted by the Chair in the review and the standard of review he applied. The appeal was dismissed, as it was found that the TLAB met its duty of procedural fairness and applied the correct standard of review to the member’s decision. However, the appeal was allowed to proceed.

[24] On a number of occasions, this Court has refused to hear appeals on the merits, on the basis of prematurity, while the proceedings were still continuing before a Tribunal:

a. Maplehurst Bakeries Inc. v. Brampton (City), 1999 19928 (ON SCDC) – The issues before the court involved the jurisdiction of the Ontario Municipal Board, specifically, whether the Board had the jurisdiction to extend or expand the boundaries of an adopted official plan, and whether the Board had the jurisdiction to approve an official plan amendment that contains modifications that would change the uses proposed in the amendment. Despite the fact that leave to appeal had already been granted, the court held that the appeal should be quashed as premature. The Court stated:

…The Board has not yet made a decision as to what modifications, if any, will be permitted in the official plan amendment, either by way of enlarging the area covered or by permitting additional uses. We are, not prepared to make any ruling respecting jurisdiction other than the ruling we have already made until after the Board has conducted its hearing and made its decision. To do otherwise would be to fragment the proceedings contrary to the decision of this court in Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798, 99 D.L.R. (4th) 738.

b. Eastpine Kennedy-Steeles Ltd. v. Markham (Town), [2000] O.J. No. 809 (ON SCDC) – The Ontario Municipal Board had heard a motion by the appellants and determined certain questions of law and jurisdiction. Despite the fact that leave to appeal had already been granted, the court held that the appeal should be quashed as premature. The Court stated:

[3] In our view, the procedure adopted by the parties bifurcates the process. If we proceed and render judgment, it will be open to the party that does not agree with the result to seek leave to the Court of Appeal. If leave is granted, the appeal will go on before that Court and, again, the unhappy person, at the end of the appeal, could seek leave to the Supreme Court of Canada. At the end of that trail, the matter may have to return, ultimately, to the Ontario Municipal Board for it to hear the other half of the bifurcated case. Obviously, this is a result that should be avoided.

[5] We are of the view that the Ontario Municipal Board should complete its task of hearing all of the issues that are involved in this matter.

c. The Corporation of The Town of Richmond Hill v. Yonge Bayview Holdings Inc. et al., 2013 ONSC 2252 – The Applicant sought leave from a decision of the Ontario Municipal Board, which arose from a preliminary motion that the Town had brought regarding the correct statutory interpretation of the provisions of the Act that pertain to parkland dedication. The Court refused leave on the grounds that it was premature, and that “the circumstances do not constitute extraordinary or exceptional grounds that justify the bifurcation or fragmentation of the proceedings that would result.” The court stated:

[16] It is common ground that, as a general rule, this court will not fragment proceedings before administrative tribunals by hearing appeals from interlocutory decisions, absent “exceptional or extraordinary circumstances”: see Ontario College of Art v. Ontario (Human Rights Commission) (1992), 1993 3430 (ON SCDC), 11 O.R. (3d) 798, 99 D.L.R. (4th) 738 (Div. Ct.) at paras. 4 and 6 (“Ontario College”).

[17] Likewise, this Court has repeatedly indicated the need to avoid a “piecemeal approach” to judicial review of administrative action, recognizing that fragmentation causes both delay and interruptions in administrative proceedings. Instead, it is preferable to allow such matters to run their full course before the tribunal and then, if necessary, consider all legal issues arising from the proceedings at their conclusion: Ontario College at para. 6. In the same vein, this Court has recognized that matters raised at a preliminary stage may no longer be of interest after the conclusion of an administrative tribunal’s proceeding.

[18] Moreover, it is generally advisable to consider the issues within the context of a full evidentiary record: Ontario College, at para. 7; see also Liquor Control Board of Ontario v. Lifford Wine Agencies Limited (2005), 2005 25179 (ON CA), 76 O.R. (3d) 401 (C.A.) at para. 42.

[19] The parties also recognize that there may be exceptions to this general rule, citing Home Depot Holdings Inc. v. Toronto (City), 2010 ONSC 1669, 64 O.M.B.R. 253 (Div. Ct.), as an example of a case in which the Divisional Court heard an appeal despite the argument that it was premature.

d. Niagara-On-The-Lake v. Tweed Farms Inc., 2020 ONSC 3664 – The Town sought leave to appeal the decision of the Local Planning Appeal Tribunal. The decision was issued following a case management conference to set a procedural order and list of issues for the Tribunal Appeals. At the conference, the Member considered a motion brought by Tweed and the numbered company seeking approval of a procedural order establishing a list of five issues for the Tribunal Appeals. The Town’s motion for leave to appeal was dismissed as it was determined to be premature. It is of note that the parties agreed that the proposed appeal was from an interlocutory decision and therefore the question of prematurity had to be considered as a preliminary threshold matter (para. 13). In dismissing the motion for leave to appeal, the court referred to Home Depot Holdings Inc. v. Toronto (City), 2010 ONSC 6071, 78 M.P.L.R. (4th) 204 (Div. Ct.) and stated in part as follows:

[31] In granting leave to appeal in Home Depot Sachs J. emphasized that the circumstances were exceptional and therefore fell outside of the well-established principle discouraging fragmentation. The full panel of the Divisional Court re-emphasized that determination. The fact that the circumstances in Home Depot were truly extraordinary is exemplified by the fact that it represents the only reported case in which leave to appeal has been granted in respect of a non-final order or decision of the Tribunal or its predecessor the OMB.

[32] Rule 19.01(a) of the Tribunal’s Rules of Practice and Procedure provides that at the request of a party, on its own initiative, or as may be required by law, the Tribunal may convene a prehearing conference in order to, among other things, determine the issues raised by an appeal. There is therefore nothing extraordinary about the Tribunal determining the issues at a prehearing conference. It is acknowledged by the responding parties that the Town will be in a position to argue the issue advanced by its motion before Member Ng, and depending on the outcome of the Tribunal Appeals, to seek leave to appeal the final decision to the Divisional Court on that issue.

[33] In my view to grant leave to appeal from a procedural order setting the issues for the appeals in these circumstances would represent an unwarranted encroachment on the principle discouraging fragmentation of administrative tribunal proceedings and would only lead to unjustified delay. The fact that a full evidentiary record may not be necessary to address the question of law that is the subject of the proposed appeal is not determinative of the prematurity question. The delay which would be occasioned by the proposed appeal is also an important factor. The risk of delay is particularly acute in respect of appeals relating to a by-law extending an interim control by-law, as in this case, as the extended term of the by-law may very well be expired before an appeal of the procedural order setting the issues will have been finally disposed of, rendering the Tribunal Appeals moot. As noted by O’Driscoll J. in the case of Eastpine Kennedy-Steeles Ltd. v. Markham (Town) (2000), 10 M.P.L.R. (3d) 269 (Div. Ct.) at para. 3, such delay may be exacerbated by possible appeals, with leave, to the Court of Appeal and to the Supreme Court of Canada.

[25] This court has previously established that, in a statutory appeal, there is no right to appeal from an interlocutory decision of an administrative tribunal, absent explicit statutory language authorizing such an appeal. In Penney v. Cooperators General Insurance Company, 2022 ONSC 3874, the appellant appealed the decision of the Vice Chair of the Licence Appeal Tribunal denying her motion to remove the lawyer of the Respondent, Cooperators, due to an alleged conflict of interest. After referring to numerous authorities, the court stated:

[26] Given the language of s. 11(1) and (6) of the LAT Act, read in the context of the entire statute and the objective of preventing fragmentation of and delay in administrative proceedings, I conclude that this Court has no jurisdiction to hear an appeal from an interlocutory decision of the LAT. In my view, this conclusion is consistent with the instruction from the Supreme Court of Canada in Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65 that the courts should respect the Legislature’s decisions with respect to institutional design (at paras. 24, 36). Here, the Legislature chose not to confer a right to appeal interlocutory decisions of the LAT to the Divisional Court.

See also: Delic v. Enrietti-Zoppo, 2022 ONSC 1627, at para. 11, where this principle was applied in the Landlord and Tenant Board context.

[26] In the case at bar, subsection 24(1) of the OLTA does not expressly specify whether this Court has jurisdiction to hear an appeal from an interlocutory decision. It states, “an order or decision 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 wording of the OLTA is strikingly similar to the LAT Act at issue in Penney.

[27] The determination of what amounts to an interlocutory order versus a final order is not always simple. An interlocutory decision has been defined as follows:

a. “If the merits of the case remain to be determined” - Wachsberg v. Wachsberg, 2018 ONCA 508, at para 6

b. “Does not finally dispose of the appellant’s accident benefits application, nor does it dispose of any substantive issue or claim in that proceeding” – Penney, para 6

c. “Where the effect of an order is to continue the inquiry, it is not final.” – Delic, para 7

[28] It must be remembered, as noted in some of the cases referred to above, that even if the decision is interlocutory, this court has a discretion to hear the appeal where exceptional circumstances exist or where a decision is fatally flawed. In Micanovic v. Intact Insurance, 2022 ONSC 1566, there was an appeal of an order of an adjudicator of the Licence Appeal Tribunal. The Order required the Appellant to produce to Intact Insurance personal and corporate income and business records of the Appellant’s housekeeper for the purpose of determining whether the Appellant was entitled to payment of housekeeping services that were required as a result of his catastrophic injuries. The Court stated:

[30] The Order is an interlocutory order rather than a final order resolving the Appellant’s claim for housekeeping benefits. The Respondent submits that this Court should decline to hear this appeal on the grounds of prematurity and an absence of exceptional circumstances in reliance on the well-established principles most recently articulated in Cura v. Aviva Insurance Canada, 2021 ONSC 2290 at para. 30:

It is a fundamental principle of our legal system as it relates to both litigation before the LAT and similar tribunals, as well as trials in our court system, that decisions made during the course of a proceeding are not subject to judicial review or an appeal until such time as the process itself is complete. This principle is well understood and reflected in the decision of the Court of Appeal in Volochay v College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 69, where the Court of Appeal adopted the rationale for this principle set forth by Stratas J.A. in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, as follows:

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until available, effective remedies are exhausted.

This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a review in court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge.

[31] I do not agree that we should decline to hear this case for the following reasons.

[32] I accept that, as set out in Cura, it is a fundamental principle in our legal system that, absent exceptional circumstances, courts should not interfere with ongoing administrative processes, including an arbitration, until after they are completed or until available, effective remedies are exhausted.

[33] However, the case law also provides that an interim order can be challenged if it is “fatally flawed”: see Taylor v. Aviva Canada Inc., 2018 ONSC 4472 at para. 19. In this case, as set out below, the Adjudicator made three errors of law. Collectively, these three errors of law render the Order “fatally flawed.” I propose to address these three errors of law and then to address the exceptional circumstances in this case in greater detail.

[29] Having considered the entirety of the circumstances, it is the view of this court that the Review Decision of the Chair, in this case, is not an interlocutory decision, but rather a final decision, that set aside the Hearing Decision, on its merits, and directed a rehearing of the appeals before the Tribunal. While this court accepts a rehearing has not yet occurred, this Review Decision goes to the very heart of the matter. It overturned a lengthy Tribunal Hearing on its merits. This is analogous to a situation where the Court of Appeal quashes an acquittal and orders a new trial. Just because the new trial is pending, does not change the final nature of the Court of Appeal decision. While the new trial is pending, a party can apply for leave to appeal to the Supreme Court of Canada. This Review Decision is not related to a procedural or collateral issue. Section 24(1) is clear – an order or decision of the Tribunal may be appealed to the Divisional Court, with leave, on a question of law. The review proceedings resulted in both a Decision and an Order that went to the very foundation of this entire matter. The review proceedings did, most certainly, dispose of a substantive issue in the proceedings.

[30] The Township and Tribunal argue that, to prevent fragmentation and delay, the most efficient and effective approach is to allow the Tribunal rehearing to proceed and, should any party wish to seek leave to appeal the rehearing decision, it may do so at that time. If the Moving Party is granted leave now, the Township intends to reactivate and pursue its motion for leave to appeal the Hearing Decision, which will likely require the re-scheduled hearing dates in July 2024 to be vacated. Even if the Moving Party is successful on the appeal, the Township questions what relief would be granted. For example, the matter could be remitted back to a Review on the remaining grounds that were not considered. Unfortunately, this may be true. However, the Moving Party cannot be denied the opportunity of questioning the Review Decision simply because other steps may be taken.

[31] Frankly, the arguments of the Township and the Tribunal are based on the result of the review process. They argue that because there is an impending hearing, the Decision and Order is not final. Does this mean that if the Review Decision would have been to uphold the Hearing Decision the Township would have had the ability to seek leave to appeal, but if the Review Decision quashes the Hearing Decision and orders a new hearing, the aggrieved party does not have the same opportunity to question the review? This result would be fundamentally unfair.

[32] This Court is not prepared to say that every Review Decision or Review Order will be final. There may well be circumstances that make the Chair’s decision / order interlocutory. This is not one of those circumstances. The Review Decision and Review Order in this case is final.

Test for Leave to Appeal

[33] There is no dispute that, on a motion for leave to appeal, the test is three-fold: 1) the proposed appeal must raise an extricable question of law; 2) there must be a reason to doubt the correctness of the decision appealed from with respect to the question of law; and 3) the matter must be of sufficient general or public importance that it merits the attention of an appellate court.

[34] As for the proposed appeal raising an extricable question of law, this factor has been met. A breach of the rules of natural justice or procedural fairness is an excess of jurisdiction. Where there has been a denial of natural justice and procedural fairness, there is reason to doubt the correctness of the decision. The question is whether the requirements of procedural fairness and natural justice necessary in the particular circumstances have been met. (Moreau-Bérubé v. New Brunswick (Judicial Council) (2002), 2002 SCC 11, 209 D.L.R. (4th) 1 (S.C.C.) at para. 74; London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.) at para. 10).

Reason to Doubt the Correctness of the Decision on the Question of Law

[35] This court accepts that failing to provide procedural fairness and natural justice would amount to an error of law. The real issue is whether that occurred in this case. It is the view of this court that it did not occur in this case.

[36] The Moving Party argued that the Chair failed to meet the most basic and minimum standards of procedural fairness and natural justice, and pre-judged the ZBLA appeals in how he proceeded and in his comments in his Review Decision. They argued that this is so for the following reasons:

a. Before rendering his Review Decision, the Chair did not provide 254 notice that lack of sufficient reasons in the Hearing Decision was even at issue, what reasons were allegedly insufficient or missing, or that potential consequences were being considered by the Chair in connection with this issue. Accordingly, 254 was deprived of any opportunity to respond.

b. The Review Decision did not set out any reasons or details explaining how the Chair arrived at his determination that the Hearing Decision's reasons were inadequate. The Chair baldly concluded in his Review Decision that the Hearing Decision was made in the absence of evidence, without specifying what evidence was purportedly absent and how such missing evidence was significant or necessary to the propriety of the ZBLA under the Planning Act.

c. The Chair exceeded his jurisdiction and fettered his discretion. Despite acknowledging that he could only exercise discretion in a request for review if the "high threshold" in the Tribunal's rules governing review requests was satisfied, the Chair did not explain how his simple finding of an error of law satisfied that high threshold.

d. The Chair made his Review Decision based on a ground not before him. The Chair did not address any of the eleven alleged errors in the Hearing Decision that were the basis of the Township’s request for review. Instead, the Chair granted the review based on a ground (sufficiency of reasons) not asserted in the request.

e. The Chair has pre-judged the matter. This is demonstrated by the “bizarre and abrupt manner” in which he dealt with the Township’s request for review. This is also demonstrated by various comments in his decision.

[37] Not every administrative decision requires the same level of procedural fairness. In Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 SCR 817, the court provided the following, non-exhaustive list of factors to be considered: 1) nature of the decision being made and the process followed in making it; 2) nature of the statutory scheme and the terms of the statute pursuant to which the body operates; 3) importance of the decision to the individuals or individuals affected; 4) legitimate expectations of the person challenging the decision; and 5) the choices of procedure made by the agency itself (para. 23-28). Before setting out those factors, the court said this:

[22] Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

[38] In this case, the procedural fairness required on a Request for Review would seem on the lower end of the scale based on a consideration of all of the Baker factors.

[39] This court disagrees with the argument that the Review Decision is not a final decision that is determinative of the issues. While it is true that the chair has sent the matter back for a fresh rehearing, this is still a decision that impacts the very substance of the matter. The Review Decision has overturned completely the Hearing Decision on the merits. Having said that, it must be remembered that the new hearing will come with its own review and appeal entitlements. More importantly though, the Chair followed the process established. He was required to consider the request for review and he did so. That request included a voluminous record of material which it appears he considered. Broad discretion is conferred on the Tribunal pursuant to sections 9, 12, 13, and 23 of the OLTA, section 25.1 of the Statutory Powers and Procedure Act, and the Tribunal’s Rules of Practice and Procedure to decide such a review. The broad discretion was recognized in Richmond Hill Naturalists v. Corsica Developments Inc., 2013 ONSC 7894, para 38, referring to Shanahan v. Russell (2000), 2000 17036 (ON CA), 52 O.R. (3d) 9 (C.A.), at paras. 10-15. Rule 25 of the Tribunal’s Rules governs the Chair’s process for a review request. A review can be conducted as a result of a request from a party (25.2) or on the Chair’s own initiative (25.11). The Chair must consider a person’s request for a review of a decision, however the Chair is not required to provide the other parties an opportunity to respond (Rule 25.5) – which is clear from the language of the Rule. Rule 25.6 permits the Chair to exercise their discretion to grant the relief they see fit, and notice is only required if a re-hearing is directed. Rule 25.7 sets out in what circumstances the chair may exercise their discretion to grant a request. In this case, the Chair relied on Rule 25.7(c). While the Tribunal Rules do not provide a right for other parties to make submissions on a section 23 review, or even a notice requirement, in this case, the Township provided notice and there was no response. The Tribunal has established a process through its Rules and the Chair followed those Rules.

[40] In Barnes v. Ontario (Social Benefits Tribunal), 2009 CarswellOnt 4327 (Div. Ct.), the court noted the uniqueness of the reconsideration process to administrative decision-making. The court stated at para. 22: “Accordingly, it is inappropriate to adopt all of the procedural requirements of the civil court system in order to achieve fairness.” It is worth noting, however, that written submissions were provided in Barnes.

[41] The Review Decision in this case involves a land use planning matter, the ability to grow a certain type of crop. Generally, a higher level of procedural fairness will be required in cases that affect the life, liberty, and security of the person, such as disciplinary, deportation or criminal proceedings. In Rideau Action Group Inc. v. Ottawa (City) et. al., 2022 ONSC 4219, the court heard a motion for leave to appeal from a decision of the Ontario Land Tribunal. The Court stated in part:

[3] It is important to understand the limited role for the court under the complex network of legislation that governs land use planning in Ontario. The Divisional Court is not responsible for land use planning or policy. The role of the court under the legislation is to ensure that the Tribunal has acted lawfully.

[4] The statutory appeal right is a narrow one. Firstly, the appeal must relate to a question of law. Secondly, an appeal is not automatic because it requires leave of the court. As established by the jurisprudence, the test for granting leave is itself twofold. There must be reason to doubt the correctness of the decision appealed from. Even if the decision appears incorrect, however, the matter must be of sufficient importance that it merits the attention of an appellate court.

[5] It is not the current practice of the Divisional Court to give reasons for granting or withholding leave to appeal. I have concluded that leave should not be granted in this instance because I am neither persuaded that the Tribunal erred in law nor that any such error is of sufficient importance to support an appeal.

[21] I start by observing that a tribunal hearing is not a criminal trial and the issues to be determined are not the individual civil or property rights of the citizens who oppose the decision in question. The Ontario Land Tribunal is charged pursuant to the Planning Act with determining if there is a “land use planning ground” to overturn the planning decision made by the municipality. Individuals or entities who made submissions to the municipal council at the time of the original decision have a right to be heard on the matter before the Tribunal, but the right to be heard is directed to the question the Tribunal must decide. In conducting its hearings, the Tribunal has a great deal of latitude in determining what procedure to adopt and what evidence it considers important.

[22] I acknowledge that exercise of delegated public powers by administrative tribunals demands that administrative decision makers function in a “culture of justification” so that their decisions can be “justified to citizens in terms of rationality and fairness”. This is the overarching principle for all forms of judicial review as described by the Supreme Court of Canada in Vavilov and cases subsequent to it. Where, as here, the legislature provides for a specific right of appeal, the legislature has subjected the “administrative regime to appellate oversight” on an appellate standard. That standard is the much-repeated formula enunciated by the Supreme Court in Housen v. Nikolaisen.

[23] Specifically, this means that the standard of review on an extricable question of law is “correctness”. In the matter before me, of course, an appeal is only available on a question of law and then it is available only with leave. I must be persuaded that the proposed appeal relates to a question of law, that the Tribunal appears to be in error and that the matter is of sufficient importance that an appeal should be allowed. The latter does not mean it is important just to the appellant. If it was not important, the appellant would not be appealing. To be sufficiently important to grant leave, it is the importance of correcting the error which must be considered. If it involves an important legal principle or one of universal application, the necessity of correcting the error of law will be more apparent and will support the granting of leave. If the error is a minor one or of only limited and individual significance, it may not.

[42] This court accepts that these issues have importance to the parties affected. 254 owns a 250-acre farm property in the Township of Oro-Medonte. Its property consists entirely of prime agricultural lands and is zoned agricultural. Since January 2020, 254 has been leasing its farm property to Medical Saints Limited (“MSL”), a company licenced by Health Canada, for the purposes of outdoor growing of industrial hemp crops. The growing of this crop on this land has now been prohibited. There is no question that this is an important issue for the parties. However, importance to the parties can be said in almost every case that is litigated.

[43] As for legitimate expectations of the parties, there could have been no expectation to notice or an opportunity to make submissions. The Rules are clear that this is not required. However, in this case, 254 was on notice. They received that notice on March 1, 2023. Despite this, they chose not to make submissions of any kind. 254 was represented by experienced counsel who would know the Rules.

[44] There is no question that the initial Hearing Decision was favourable to the Moving Party. However, as stated in Barnes, para 28:

[28] The initial Tribunal decision that was favourable to the applicant here does not amount to a positive right or proprietary right to retain the benefits achieved, as the administrative legislative framework (the SPPA, and the ODSPA and the OWA regulations) contemplates both a reconsideration and an appeal.

[45] The choice of procedure made by the Tribunal is entitled to deference by this court. In Hutchinson v. Aviva General Insurance Company, 2023 ONSC 1472 (Div. Ct.) McCarthy J. for the Court stated:

[25] It has long been an axiom of administrative law that specialized tribunals are best placed to select among available procedural options based on their balancing of the competing interests of expedition, cost-effectiveness, and full participation: see Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at para. 27.

[27] In considering procedural fairness at the administrative tribunal level in Rogers Communications Partnership v. Ontario Energy Board, 2016 ONSC 7810 (Div. Ct.) at para. 18, this court endorsed the following guidance from Sound v. Fitness Industry Council of Canada, 2014 FCA 48, [2015] 2 F.C.R. 170 at para. 42:

[…] whether an agency’s procedural arrangements, general or specific, comply with the duty of fairness is for a reviewing court to decide on the correctness standard, but in making that determination it must be respectful of the agency’s choices. It is thus appropriate for a reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision-making on the other.

[46] In Roozbuilt, the court was considering the Toronto Local Appeal Body (TLAB) Rules, which have similar review provisions to those in the Tribunal Rules. However, Rule 31.1 of the TLAB Rules requires the party seeking a review to file a request, served on the other parties, and to provide an affidavit describing the grounds and the basis for the request. This notice is not required in the Tribunal Rules. In Roozbuilt, the responding party to the review wrote a two-page letter asking for the review to be denied. The Chair then granted a review of the decision and cancelled the original decision. In this appeal, the appellant argued that the notice was inadequate because they did not know that the Chair was going to conduct the actual review without alerting the parties and without giving them an opportunity to make submissions on the merits of the review. The court stated:

[21] The duty of fairness is meant to provide participatory rights in an administrative process. Two important elements of procedural fairness are notice and an opportunity for an affected party to make submissions. However, the content of the duty varies with the context, and so a reviewing court considers various factors in determining the precise content of the duty of procedural fairness in a particular case (Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras. 22-27).

[24] The TLAB’s Rule 31 provides detailed guidance for its review process. Rule 31.1 requires the party seeking a review to file a request, served on the other parties, and to provide an affidavit describing the grounds and the basis for the request. This puts the other parties on notice of the request for a review.

[25] Mr. Jamieson gave the required notice under the Rules. The appellant received notice of the Request for Review, and through counsel, responded to it.

[26] However, the appellant argues that the notice was not adequate, because the appellant did not know that the Chair was going to go on and conduct an actual review of the decision without alerting the parties to the fact he was doing so and without giving them an opportunity to make submissions on the merits of the review.

[27] The problem with this argument is that it ignores the Rules adopted for a review by the TLAB and, in effect, seeks to impose a two-stage process. However, the Rules do not require the TLAB to adopt a two-step process, whereby it would make a ruling on whether to review a decision and then engage in a second process whereby it would give notice and invite submissions before conducting the actual review. Rule 31.6 gives a clear and broad discretion to the member of the TLAB who receives a request for review to determine how best to conduct that review. It is up to that member to decide whether there is a need for a motion before determining the request or a rehearing with respect to some or all issues.

[28] In the present case, the Chair turned his mind to the appropriate process to follow with respect to this particular Request for Review. He decided that there was no need for a motion or a new hearing…

[34] Moreover, it is important to remember the important role of the review process of an administrative tribunal such as this, where the right to appeal is limited to questions of law, with leave. As the Court of Appeal stated in Russell, above, at paras. 14-16, the power of reconsideration or review in an administrative tribunal is “an appropriate means both for the correction of errors in the absence of an appeal and to permit adjustments to be made as changes in the regulated activity occur” (quoting Reid, Administrative Law and Practice, 1971).

[35] The review process adopted in the present case was reasonable and respected the duty of procedural fairness. The appellant had notice of the request for review and made submissions on it. The Chair had a broad discretion how to proceed, and he chose to rely on the submissions on the request for review, the transcripts, and the evidence and submissions before the member that he reviewed in full before making a decision. I am satisfied that the process met the requirements of procedural fairness, and I would not give effect to this ground of appeal.

[47] The Tribunal has established a clear, fair, and reasonable process and procedure for review as set out in the Rules. That established procedure gives wide discretion to the Chair to consider and dispose of requests for review. The Chair followed that process and procedure.

[48] This Court will now address each of the specific arguments raised by the Moving Party on this motion for leave.

Notice

[49] With respect to notice, the Moving Party, 254, acknowledges that the language in Rule 25.5, in relation to filing and serving a Response to a Request for Review, is permissive rather than mandatory. However, 254 argued that principles of procedural fairness and natural justice required the Chair to provide notice and an opportunity to respond, as the power of an administrative body to determine its own procedure is always subject to complying with those principles, relying on Simcoe (County) v. Arbour Farms Limited, 2017 ONSC 6803, paras. 62, 63 and 65 and Pickering Developments (401) Inc., et al v. The Corporation of the Town of Ajax, 2019 ONSC 4322, para. 18. The Moving Party, 254, submitted that even at the lowest end of the scale of procedural fairness and natural justice, there is a right to notice and an opportunity to respond, and that any decision without notice is void. They referred to a number of cases which this court has carefully reviewed.

[50] In 1657575 Ontario Inc. v. Hamilton (City), 2008 ONCA 570, the appellant had operated an adult entertainment parlour. The City recommended a hearing to consider revoking the appellant’s licence on the basis that it had not actively carried on business within a reasonable time following the issuance of the licence, in accordance with a city by-law. A copy of the recommendation was not sent to the appellant, however a notice that a hearing had been scheduled was sent, which notice did not include the grounds for the recommendation as required by the by-law. The appellant requested disclosure of the evidence the city intended to rely on at the hearing which was not provided. Ultimately, council revoked the licence. Judicial review was dismissed, and the appellant appealed. The appeal was allowed. The Court stated:

[24] The extent of the procedural rights encompassed in the duty of fairness depends on the content of the particular statute or regulation and on the nature of the rights affected. The criteria to be considered in determining the content of the duty of procedural fairness include: (a) the nature of the decision being made and the process followed in making it; (b) the nature of the statutory schemes and the terms of the statute pursuant to which the body operates; (c) the importance of the decision to the individual affected; (d) the legitimate expectations of the person challenging the decision; and (e) choices of procedure made by the agency itself. See Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, at paras. 21-27.

[25] Disclosure is a basic element of natural justice at common law and, in the administrative context, procedural fairness generally requires disclosure unless some competing interest prevails. As discussed in David Jones and Anne De Villars, Principles of Administrative Law, 4th ed. (Scarborough, Ont.: Thomson Carswell, 2004), at 258:

The courts have consistently held that a fair hearing can only be had if the persons affected by the tribunal's decision know the case to be made against them. Only in this circumstance can they correct evidence prejudicial to their case and bring evidence to prove their position. Without knowing what might be said against them, people cannot properly present their case. See also May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, [2005] S.C.J. No. 84, at paras. 92-93.

[26] As noted by Lane J. in Waxman v. Ontario (Racing Commission), 2006 35617 (ON SCDC), [2006] O.J. No. 4226, 216 O.A.C. 353 (Div. Ct.), at para. 11, the failure to make proper disclosure has the effect of rendering the process "irretrievably tainted with unfairness from the outset".

[27] In cases involving breaches of procedural fairness, the court will generally set aside the decision without considering whether the result would have been the same had there been no unfairness. This principle was recognized by the Supreme Court in Cardinal v. Kent Institution, 1985 23 (SCC), [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78, at p. 661 S.C.R., in which LeDain J. rejected the suggestion by counsel that a relevant consideration in the procedural fairness analysis is whether the holding of a hearing would have persuaded authorities to change their minds on the decision made:

[T]he denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for the court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

[28] In my view, therefore, the central issue for consideration in this case is the impact that the failure to make disclosure had on the appearance of justice and the fairness of the hearing. I need not consider whether, had full disclosure been provided, the appellant would still have been unable to persuade the licensing committee members to reach a different decision.

This case is clearly distinguishable from the case at bar, in that a copy of the City’s recommendation to have the hearing was not sent to the Appellant, rather a notice that a hearing had been scheduled was sent, which notice did not include the grounds for the recommendation as required by the by-law. There is no such requirement in the Tribunal Rules in this case.

[51] In Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10, the five appellants were members of a church congregation, governed by a constitution and by-laws. After being members of the congregation for over two decades, the appellants were asked to be part of a committee to investigate an alleged heretical movement within the church community. The committee completed its investigation and prepared a report for submission to the respondent archbishop. A dispute arose after the administration did not implement the committee's recommendations. The head priest of the church warned the appellants that they would be subject to expulsion if they continued to express dissatisfaction with the administration's decision. Seven months later, their memberships were suspended, and they were ultimately expelled. The appellants commenced an action to void the expulsion decision. The respondents moved for summary judgment to dismiss the action for lack of jurisdiction. The motion judge found no underlying contract or other right between the parties and granted the summary judgment motion. The appellants appealed. The appeal was granted, the order of the motion judge granting summary judgment was set aside and the matter returned to the Superior Court. In that context, the court stated as follows:

[40] Voluntary associations do not always have written constitutions and by-laws. But when they do exist, they constitute a contract setting out the rights and obligations of members and the organization. In Ahenakew v. MacKay (2004), 2004 12397 (ON CA), 71 O.R. (3d) 130, [2004] O.J. No. 2318 (C.A.), at paras. 20 and 26, this court affirmed that voluntary associations are "a complex of contracts between each and every other member. The terms of these contracts are to be found in the constitution and by-laws of the voluntary association."

[41] Once it is established that a contract exists, an expectation of procedural fairness may attach as a way of enforcing the terms of a contract: Wall, at para. 26. The requirements of procedural fairness depend on the circumstances, including the nature of the organization and the seriousness of the consequences of discipline. However, the basic requirements include notice, opportunity to make representations and an unbiased tribunal: Lakeside Colony of Hutterian Brethren v. Hofer, 1992 37 (SCC), [1992] 3 S.C.R. 165, [1992] S.C.J. No. 87, at p. 195 S.C.R.

Obviously, these are very different circumstances from the case at bar, including a finding of an established contract.

[52] In Forestall v. Toronto Police Services Board, 2007 31785 (Div. Ct.), the Toronto Police Services Board had granted an application made by the Chief of Police, pursuant to the Police Services Act, for relief from the statutory requirement to serve notices in respect of disciplinary hearings within six months of the date when the facts on which the complaints were based came to the attention of the Chief. The two groups of applicants brought applications for judicial review seeking an order quashing and setting aside the Board’s decision and an order preventing and prohibiting the Chief and/or the Board from proceeding with disciplinary hearings. The applicants contended that they were denied natural justice, as the level of disclosure was insufficient, they did not receive an oral hearing, and the Board’s reasons were inadequate. After considering the Baker factors, the Court stated:

[53] When all these factors are considered, it is apparent that some degree of procedural fairness is required. However, the Board is not required to hold a judicial-type of hearing. Rather, as indicated above, minimal rights of procedural fairness must be respected including notice, appropriate disclosure and an opportunity to respond.

[64] Procedural fairness requires that a party know the case to be met and have an opportunity to respond. Disclosure of the case to be met will, of course, be necessary prior to the disciplinary hearings. However, at this stage, the Board’s task was to determine whether the delay in serving the notices of hearing was reasonable in the circumstances. In our view, the disclosure provided to the applicants at this pre-charge stage satisfied the requirements of the duty of procedural fairness. The applicants knew the case to be met in response to the Chief’s Delay Application under s. 69(18), as they had a very detailed document in which he set out his reasons for the delay, as well as his supplementary report. Full disclosure of the investigative brief in the criminal proceedings and access to all documentation underlying the report were not necessary for the applicants to respond to the application under s. 69(18).

Ultimately, the applications for judicial review were dismissed. It is of note that this case was in the disciplinary hearing context.

[53] It is clear that the Chair in the case at bar recognized the unusual manner in which he was proceeding, stating, “I have made the rare decision to grant this Request without first requesting responding submissions.” However, the undisputed reality is that 254 was provided with a complete copy of the Request for Review and could have provided a response. In fact, on March 1, 2023, the Township emailed a courtesy copy of the Request to Review to the affected parties including 254, 109, the Coalition, and Tribunal counsel. None of the affected parties provided any response. 254 was represented by experienced counsel who would have been aware of the Rules that notice is not a requirement, and aware of the broad discretion given to the Chair in these circumstances. At a very minimum, 254 could have acknowledged the Request for Review and stated its case as to how it wanted the Chair to proceed. 254 could have provided a response. 254 could have requested more time to provide a response. It chose to provide nothing in the face of the Request for Review. The Moving Party, 254, argued that it assumed the matter would be held in abeyance as requested by the Township, however, the reason for this assumption is not clear, given the broad discretion granted to the Chair. The fact is that Rules 25.2 to 25.7 do not mandate the Tribunal to give notice to the parties that it is considering a review request or give opportunity to respond. This is abundantly clear in the Rules themselves. The Rules only require that notice be given if it grants a rehearing or a motion pursuant to Rule 25.6. At the rehearing as ordered, 254 will have a full opportunity to lead evidence, examine witnesses, and make submissions, as it did at the original hearing.

[54] The Moving Party argues that any response they provided would have made no difference as the Chair proceeded on a basis that he independently came up with on his own. First, this court does not agree with this characterization, which will be dealt with further below. Second, the Moving Party has no way of knowing how the Chair would have reacted to any response they provided as this simply never occurred.

[55] It is the view of this court that the Chair met the standards of procedural fairness and natural justice. There is no reason to doubt the correctness of the decision.

Reasons

[56] The Moving Party argued that the Chair based his decision on insufficient reasons in the Hearing Decision, yet failed to specify which reasons were insufficient, ironically, leading to the fact that his own reasons on the review were insufficient. The Moving Party relied on Wright v Coleman, 2015 ONSC 2744, para. 21, and Barbieri v. Mastronardi, 2014 ONCA 416, paras. 18, 22, 24, 25 for the proposition that reasons for decision must “provide some insight into how the legal conclusion was reached and what facts were relied upon in reaching that conclusion” in order to allow for “meaningful appellate review”.

[57] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653, the court stated as follows:

[91] A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside: Newfoundland Nurses, at para. 16. The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings.

[92] Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge — nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons. These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicative of a decision maker’s strength within its particular and specialized domain. “Administrative justice” will not always look like “judicial justice”, and reviewing courts must remain acutely aware of that fact.

[93] An administrative decision maker may demonstrate through its reasons that a given decision was made by bringing that institutional expertise and experience to bear: see Dunsmuir, at para. 49. In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. This demonstrated experience and expertise may also explain why a given issue is treated in less detail.

[94] The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency. Opposing parties may have made concessions that had obviated the need for the decision maker to adjudicate on a particular issue; the decision maker may have followed a well-established line of administrative case law that no party had challenged during the proceedings; or an individual decision maker may have adopted an interpretation set out in a public interpretive policy of the administrative body of which he or she is a member.

[95] That being said, reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it. It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party.

[96] Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision. Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines, at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion. This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision. To the extent that cases such as Newfoundland Nurses and Alberta Teachers have been taken as suggesting otherwise, such a view is mistaken.

[58] In his 6-page Review Decision, the Chair identified the Rules and test to be applied, set out the factual background, summarized the request for review, responded to the issues of timing and abeyances, explained the ground upon which the rehearing was granted and why this was the only appropriate result. Shorter reasons do not equate to insufficient reasons. This court is satisfied that the Chair covered the necessary items and set out his reasoning for necessity of a rehearing. His findings were responsive to one significant and fundamental issue raised by the Township. The Chair found that there was no justification to order the repeal of the entire By-law. This was based on extensive review submissions that the Township made to the Tribunal.

[59] There is no reason to doubt the correctness of the decision on this basis.

Exceeded Jurisdiction and Fettered Discretion

[60] The Moving Party argued that, despite acknowledging that he could only exercise discretion in a request for review if the "high threshold" in the Tribunal's Rules governing review requests was satisfied, the Chair did not explain how his simple finding of an error of law satisfied that high threshold.

[61] It is clear that the Chair’s powers are derived from and prescribed by statute. There are no inherent powers. Section 23 of the OLTA states:

23 Unless another Act specifies otherwise, the Tribunal may review, rescind or vary any order or decision made by it in accordance with the rules. [emphasis added]

[62] Rule 25.7 provides the Chair’s discretion. It states:

25.7 The Exercise of the Chair's Discretion The Chair may exercise their discretion and grant a request and order either a rehearing of the proceeding or a motion to review the decision only if the Chair is satisfied that the request for review raises a convincing and compelling case that the Tribunal:

a. acted outside its jurisdiction;

b. violated the rules of natural justice or procedural fairness, including those against bias;

c. made an error of law or fact such that the Tribunal would likely have reached a different decision;

d. heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

e. should consider evidence which was not available at the time of the hearing, but that is credible and could have affected the result.

[63] The Chair clearly recognized that Rule 25.7 required that a high threshold be met in order to exercise any discretion. In the Review Decision, he stated right at the outset:

Rule 25 of the Tribunal's Rules of Practice and Procedure ("Rules") sets out the process to review a decision or order. Rule 25.7 provides that a request may only be granted if it raises a "convincing and compelling case" that one of the grounds in this Rule is applicable. This Rule reflects the high threshold which has been established by the Tribunal to review or reconsider a decision.

On the next page of his Decision, he stated:

While intervention arising from a request for review is a rare and extraordinary remedy, I have concluded that the Request does raise a convincing and compelling case that there is an error in the Decision that is sufficient to warrant the exercise of my review powers which are authorized by Rule 25. My reasons as to this outcome and the manner of relief follow below.

[64] The Chair clearly understood the “rare and extraordinary remedy” that he was granting. He clearly understood that the threshold was a “convincing and compelling case”. The fact that he did not repeat this on every page of his decision, including pages 4 and 5 when he provided more detailed analysis does not mean that he ignored these principles. Having said that, at page 5, at the end of the section on sufficiency of reasons, the Chair again stated, “I therefore conclude that the Tribunal erred in law, contrary to Rule 25.7(c). This presents an error exceeding the high threshold set out in Rule 25.7. I therefore find that such an error warrants the exercise of my review powers under Rule 25.” He then concluded that the only way of addressing the problem was a rehearing.

[65] To suggest that the Chair only referred “in passing” to the high threshold to be met is simply an unfair characterization of his reasons. He was keenly aware of the threshold required.

[66] There is no reason to doubt the correctness of the decision on this basis.

Review Decision based on ground not advanced

[67] The Moving Party argued that the Chair made his Review Decision based on a ground not before him, specifically on the basis of insufficiency of reasons.

[68] The Chair stated in his decision:

The Tribunal in making its determination in this matter ordered the repeal of the entire ZBLA. Having reviewed the materials originally before the Tribunal, the Decision, and the Request, I am not convinced that the Tribunal properly grappled with the substance of the central issues in adjudicating the merits of the appeal.

While the sufficiency of the Decision's reasons was not specifically questioned as an error of law in the Request, this was in my view an underlying issue in this Decision. I would note that insufficiency of reasons is an error of law. Reasons provided in a Decision must show that the Tribunal grappled with the substance of the central issues in dispute to explain the path taken by the Tribunal to reach its decision, with the caveat that the reasons do not need to discuss each landmark considered along the way to arrive at the final order.

Specifically, I would note that the Decision provided no justification in providing the relief that it did, in ordering the repeal of the entire ZBLA. Given the novel nature of the cannabis industry in Canada, the Decision, at minimum, should have included discussion of the consultation that led to the ZBLA. Further, I would note that this matter consisted of an additional settlement, which was approved by the same presiding Member. If the underlying concerns about inconsistency with the PPS and conformity with the Grown Plan, the County OP and the Township OP were determinative for this Member, the Decision should have addressed how a settlement of the ZBLA could have been approved in the related matter. This was foundational to the central issues in dispute, and I am convinced that this was not properly before the Tribunal.

Similarly, the Tribunal's cursory findings relating to the Growth Plan, County OP, and Township OP were inadequately explained. I agree with the Request that a finding of inconsistency with one policy of the PPS does not necessarily render a zoning instrument inconsistent or non-conforming with all the provincial and municipal plans. The Tribunal, in assessing the instrument, must consider the provincial and local policies as a whole and balance the competing policies, keeping the local circumstances of the community in view.

[69] It is clear that the real concern of the Chair was the fact that the Tribunal did not justify its repeal of the entire ZBLA. This was precisely a concern raised by the Township in its Request for Review. At page 12 of the Request dated February 24, 2023, the Township stated:

The outcome of the proceeding is disproportionate and unresponsive to the issues at hand for which evidence was given. At paragraph 130 of the Decision, the Member ordered the repeal of the entire Cannabis By-law despite that the contested issues in the appeals and the evidence called by the appellants were substantially and primarily of a site-specific nature.

The Tribunal's order that the Township repeal the entire Cannabis By-law was therefore unsupported by the evidence and vastly out of proportion with what the Tribunal could reasonably have been expected to decide in the course of presiding over the two appeals.

Ordering the modification of the Cannabis By-law to include site-specific permissions would have been more responsive to the issues at hand and is supported by the evidence that was before the Tribunal at the hearing. Alternatively, an order to repeal the Cannabis By-law only as it relates to the appellants' sites would also be an appropriate outcome based on the issues and evidence before the Tribunal. On the contrary, the relief granted by the Tribunal - an order to repeal the entire Cannabis By-law - was not an appropriate or supported outcome.

[70] Therefore, while the Chair framed the problem as a “sufficiency of reasons” problem, rather than an “unsupported by the evidence” problem, the problem is still the same – repeal of the entire By-law. This was an issue raised directly by the Township, and this was the issue that the Chair focused on. The Moving Party had notice of this being an issue on March 1, 2023 but chose not to respond.

[71] Having said that, even if the Chair raised his own ground of review, the reality is that the Chair has the discretion to do so.

[72] To argue to the contrary, the Moving Party referred this Court to a few cases.

[73] In Mattamy (Downsview) Limited v KSV Restructuring Inc. (Urbancorp), 2023 ONSC 3013, the Applicant sought to set aside an arbitration award on the basis that the arbitrator exceeded his jurisdiction by raising and deciding a new issue and on grounds of unfairness arising from his refusal to permit the Applicant from presenting evidence that it considered relevant to the new issue. The Court found that the arbitrator did not exceed his jurisdiction by having raised and considered the new issue. However, in considering whether the manner in which the evidence and submissions about the new issues were received and considered, the court held that the Applicant was not afforded a sufficient opportunity to present its case on the new issue in that the arbitrator refused to allow certain pieces of evidence to be received. The Court ordered that the award be set aside and the parties proceed to a new arbitration before a different arbitrator. These circumstances are not analogous to the case at bar.

[74] In Rabin v. 2490918 Ontario Inc., 2023 ONCA 49, the appeal involved the application of s. 23(2) of the Commercial Tenancies Act, and, more particularly, the determination of whether a landlord refused or neglected to consent to an assignment of a commercial lease, whether the tenant waived the landlord’s defective performance, and whether the landlord’s consent was unreasonably withheld. The appellant tenant appealed the dismissal of his application for an order under s. 23(2) under the CTA to require the respondent landlord to consent to the assignment of the lease. In sum, he submitted that the application judge erred in finding that the appellant had waived the respondent’s neglect or refusal to provide its consent within the 15-day deadline set out in the lease or at all, and in failing to find that the respondent had unreasonably withheld its consent to the requested assignment. The Court held that the application judge applied the doctrine of waiver when it was not raised or argued by the parties, and erred in his application of the doctrine of waiver. The court stated:

[24] It is well established that as a matter of natural justice and trial fairness, it is not open to a judge to dispose of a material issue in a proceeding on a basis that has not been raised or argued by the parties: Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 271, 398 D.L.R. (4th) 652, at para. 62, leave to appeal refused, [2016] S.C.C.A. No. 279; Labatt Brewing Company Limited v. NHL Enterprises Canada, L.P., 2011 ONCA 511, 106 O.R. (3d) 677, at para. 6; Rodaro v. Royal Bank of Canada (2002), 2002 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at paras. 58-62.

[25] Here, on his own initiative, the application judge relied on the doctrine of waiver to dispose of the material issue of the respondent’s compliance with article 11.1(a) of the lease without giving the parties the opportunity to make appropriate submissions. This alone warrants the setting aside of the application judge’s decision.

This is in the context of a court hearing an application, which is a very different situation from that of a request for review being considered within the administrative context.

[75] It is the view of this court that, even if the Chair pulled this ground out of thin air, which he did not, the reality is that the Chair has the discretion to raise its own ground of review. The Courts have recognized that the Chair of an administrative tribunal is entitled to arrive at a conclusion on an issue in the absence of submissions from counsel given its institutional expertise. See Gowling v. Ontario (Workplace Safety & Insurance Appeals Tribunal), 2004 CarswellOnt 9827 (Div. Ct.) at para. 21-22. See also, sections 9(1) and 9(4) of the OLTA; Rule 1.3 and 1.4 of the Tribunal Rules.

[76] While the Chair was able to raise its own ground of review, this is not what occurred in this case. This issue, the repeal of the entire By-law, was clearly put forward in the Request for Review by the Township.

[77] There is no reason to doubt the correctness of the decision on this basis.

Pre-judgment

[78] The Moving Party submitted that the Chair pre-judged the issues, as demonstrated by the “bizarre and abrupt manner” in which he dealt with the Township’s Request and in some of his comments. 254 argued that two and a half years after an appeal commenced of the ZBLA, and after a thorough and expensive hearing, there was a 36-page Hearing Decision. However, two-three weeks after the Chair received the Request for Review, and after being told to hold off making a decision, he issued, without notice, a Review Decision on a ground that was not before him, commenting vaguely about the Tribunal’s reasons, not having considered the Township’s eleven concerns, and not mentioning the word “hemp” once. The Moving Party submitted that he has lost any appearance of impartiality.

[79] The Moving Party’s characterization of the actions of the Chair are unwarranted. Many of the criticisms have already been addressed above. There is no question that a decision maker must be both impartial and seen to be impartial. However, there is no basis for this argument in this case. It must be accepted that the Chair has a demonstrated level of expertise. The Chair is expected to know the law and procedure without specifically citing every principle, statute, and case. The Chair was writing to represented parties. There was no requirement for the Chair to provide more detail than was provided.

Sufficient General or Public Importance

[80] The Moving Party argued that the Ontario Land Tribunal is relatively new – established around 2 years ago. It decides all matters related to land use planning, environmental and natural features and heritage protection, land valuation, land compensation, municipal finance, and related matters. The Chair is tasked with conducting reviews of Tribunal decisions in these areas. The Moving Party argued that clarification must be provided by the court as to the powers of the Chair involved in the review process, such as whether the Chair can grant the review on a ground not alleged by the requesting party, and whether the review can proceed without notice or opportunity to respond, and the nature of reasons the Chair is required to provide. According to the Moving Party, this “screams out” for judicial oversight, as it does not just pertain to the land at issue in this proceeding, rather it has importance that transcends the parties to this litigation.

[81] While the Ontario Land Tribunal – as named – is fairly new, a Tribunal of this type has been continued through various name changes dating back to 1906. Therefore, it is not really new as suggested.

[82] Further, the alleged questions of law raised are not of sufficient general or public importance to merit the attention of this Court. The issues raised on this proposed appeal only affect a single party and its single landholding within a single municipality. The legal errors asserted do not concern a matter that is of general public importance or that is otherwise important to the development of the law and administration of justice.

Conclusion

[83] For all of the foregoing reasons, it is the view of this court that, while the hearing of this motion is not premature, as it has been found to be a final order, the motion for leave to appeal must be dismissed on its merits. The Moving Party, 254, has not demonstrated that there is any reason to doubt the correctness of the Chair’s Review Decision. Given that there has been no breach of procedural fairness, 254 has not demonstrated that the alleged questions of law raised are of sufficient or general public importance such that they merit the attention of this court.

[84] This motion for leave to appeal is dismissed.

[85] Given that leave to appeal has been refused on its merits, rather than on the issue of prematurity, as conceded by the Moving Party, there is no reason to deal with the request for an extension of time to serve and file a judicial review.

[86] There would also seem to be no need to decide whether the remaining eleven issues need to be decided by an Associate Chair. The Township has indicated that it will not be pursuing those grounds if the matter is returning to a new hearing. Having said that, if something changes, given the history of this matter, it might be preferable that an Associate Chair review any future matters. By making this suggestion, this court is not commenting negatively on the Chair in any way.

[87] As for costs, the court strongly encourages the parties to consult with each other and attempt to reach a reasonable agreement. If the parties are unable to agree as to costs, the court will accept written submissions on costs, which shall be no more than three pages in length, excluding supporting documentation, and which shall be provided to the court office, and to Bev.Taylor@ontario.ca, no later than 4:30 p.m. on October 13, 2023.

Justice V. Christie

Released: October 5, 2023