Casa Loma Residents Association v. 555 Davenport Holdings Ltd., 2024 ONSC 2297

CITATION: Casa Loma Residents Association v. 555 Davenport Holdings Ltd., 2024 ONSC 2297

DIVISIONAL COURT FILE NOs.: 147/24 and 182/24 JR

DATE: 20240418

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Casa Loma Residents Association, Applicant

-and-

555 Davenport Holdings Ltd. and the City of Toronto, Respondents

BEFORE: FL Myers J

COUNSEL: Richard Macklin, Haya Sardar (Student at Law), for the Applicant

Mark Dunn, David Bronskill, for 555 Davenport Holdings Ltd.

Ryan Krahn, for the City of Toronto

Brennyn Watterton, for the Ontario Land Tribunal

HEARD: April 18, 2024

CASE CONFERENCE ENDORSEMENT

[1] I am asked to schedule an appeal and an application for judicial review from a single decision of the Ontario Land Tribunal. The recent decision of the Supreme Court of Canada in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, may make both proceedings viable.

[2] In the normal course, where an appeal and a judicial review proceeding both lie from the same decision, it is likely to be most efficient to hear both proceedings together. Time will tell how efficiently the court will be able to tease out the different standards of review on different issues presented in those cases.

[3] But this case is different.

[4] Appeals from the Ontario Land Tribunal to this court are limited. Subsection 24 (1) of the Ontario Land Tribunal Act, 2021, SO 2021, c 4, Sch 6, provides that a person who wishes to appeal a decision of the board requires permission or leave to appeal. If leave to appeal is granted, an appeal is then available but only on a question of law. Many statutes limit appeals to questions of law alone. But there are very few administrative tribunals in Ontario whose decisions are protected from appeal by a leave to appeal requirement.

[5] In my view, the Ontario Land Tribunal Act, 2021 reflects a legislative determination that this specialized tribunal is to have the final word on complex issues of fact-based policy that are typically before it. Of course this is subject to the normal principles of judicial review that apply generally as discussed in Yatar and in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

[6] In its decision dated February 21, 2024, the tribunal summarily dismissed appeals brought by the applicant in relation to planning approvals granted by the City for properties across the street from Casa Loma to the south. In essence, the applicant opposes the proposed development on the basis that the eight-storey residential building approved by the City will be too high and will block sight lines from Casa Loma’s public environs toward downtown Toronto.

[7] The board summarily dismissed the proceedings before it under its statutory authority to dismiss cases that raise no valid land use planning issues and have no reasonable prospect of success.

[8] The board found that the sight lines that the applicant hopes to protect were not listed in Schedule 4 of the City’s Official Plan and that a by-law is required to protect those sight lines. Without a by-law protecting the sight lines desired by the applicant, the board held that there was nothing to appeal. The applicant also raised an issue about possible heritage designation of the site. But, once again, a heritage designation requires a by-law and none exists.

[9] I agree with Mr. Macklin’s characterization of the board’s decision that it found that the applicant was raising aspirational goals rather than existing issues of law and planning policy.

[10] The applicant submits that the board made errors of law or errors of mixed fact and law in dismissing its proceedings.

[11] The applicant submits that the board erred by failing to give primacy to the general protection to public views set out in the City’s Site and Area Specific Policy No. 264. The board found that SASP 264 had to be read in conjunction with (or limited by) Schedule 4 to the Official Plan. Schedule 4 protects only two specific views: one from the Casa Loma patio (that costs $40 to enter), and the other from the Baldwin staircase. The applicant says that the board ignored s. 5.6.7 of the Official Plan that gives priority to Site and Area Specific Plans in the event of conflict with the Official Plan.

[12] To complicate matters further, it is well understood that in planning cases there is often expert evidence on planning considerations. That evidence wades into providing planners’ views on the interpretation of applicable municipal laws and policy documents. In this case the board relied on the applicant’s own expert in making its findings. The applicant says that the board misread its expert’s evidence.

[13] The applicant also asserts that this is the first case that its counsel can locate in which the board has used its authority to dismiss proceedings summarily when the case has been fully briefed by the parties. In addition, it is the first case counsel can locate in which the board made findings on evidence in support of its summary dismissal power.

[14] The applicant seeks leave to appeal on a question of law. The question of law is essentially whether the two sight lines specifically protected in Official Plan Schedule 4 trump the general wording of SASP 264 or vice versa. Buried in that issue is a possible issue of law as to whether the board properly used or misused evidence before it.

[15] The applicant also seeks judicial review of the board’s decision based on Yatar. The same issue is raised – does Schedule 4 limit or trump SASP 264. But on judicial review, the applicant will submit that the board’s decision was unreasonable in how it applied the evidence of the expert to the applicable law. Phrased this way, this may be a question of mixed fact and law. Since the applicant is not entitled to appeal a question of mixed fact and law, Yatar provides that it might be the subject of an application for judicial review. under s. 2 of the Judicial Review Procedure Act, RSO 1990 c J.2.

[16] The board does not take a position on the merits. But it is concerned that the same issues are being raised by two different review routes. It submits that the court ought to consider whether this is a proper case for judicial review when an appeal provides an adequate alternative for the very same underlying issue as it did recently in Shearer v. Oz, 2024 ONSC 1723, at para. 32.

[17] At this case conference, my task is not to resolve the issues but to schedule the hearing(s).

[18] Leave to appeal is a motion heard by a single judge. The appeal proper and the application for judicial review will be heard by three-judge panels of the court.

[19] The judge who hears the motion for lave to appeal can adjourn it to a panel under s. 21 (4) of the Courts of Justice Act, RSO 1990, c C.43. Under Rule 50.13 (6) a judge at a case conference can make that order in appropriate circumstances.

[20] The applicant is happy to proceed with a leave to appeal motion before a single judge and, if leave is granted, to then have a joint appeal and judicial review hearing before a panel.

[21] But the applicant submits that the more efficient route would be for the same panel to hear the motion for leave to appeal, the appeal, and the judicial review application together on the same day. Mr. Macklin submits that much of the leave to appeal argument will go to the proposed merits of the appeal and it is duplication to separate the hearings.

[22] The developer respondent has two goals. It insists that the applicant be put to its proof of its entitlement to leave to appeal. Then, it hopes to have the earliest outcome to allow it to get started on the construction of its building.

[23] The developer submits that to keep the leave to appeal motion separate form the appeal, the court could order that the leave motion proceed first and at the same time as the application for judicial review. Then, if leave to appeal is granted, a later hearing could be held strictly limited to the issues of law relied upon by the applicant as its grounds for appeal.

[24] While I agree with Mr. Dunn, for the developer, that the leave motion should be kept distinct form the appeal itself, linking it to the judicial review application leads only to confusion in my view. If leave to appeal is granted, then the appeal and the judicial review should be conducted together. The issues of law and mixed fact and law overlap. The remedies in an appeal and a judicial review may or may not be different. Keeping the two substantive decisions together ensures that there is one hearing into all the issues concerning the merits of the board’s decision and protects against inconsistent holdings and remedies.

[25] The bigger issue for me is whether to join the leave motion to the main hearings and do everything all at once. This will certainly be the most efficient manner of proceeding. But I agree with Mr. Dunn’s submission that joining leave with an appeal essentially undermines the leave decision. It is always possible for a panel to hear the merits and then to deny leave to appeal. But if the panel is persuaded on the merits, how likely is it to say that leave is denied even if leave would likely have been denied if heard first? There are many cases of leave to appeal being denied in this court where judges may question the correctness of the underlying decision. The applicable tests for leave to appeal anticipate this very likelihood and focus on other issues like conflicting decisions and public importance for example. A leave to appeal requirement is made to weed out cases which could be overruled on appeal but which should not be heard for other reasons.

[26] Yatar is still new. We do not have much jurisprudence yet on the relationship between appeals and applications for judicial review on the same tribunal decision. While Yatar seems to have allowed judicial review proceedings relating to issues of fact, for example, Vavilov suggests that such cases will be limited. Whether this case presents an example where an appeal will preclude judicial review or not is an open question. I am not trying to prevent the hearing of any issues in making scheduling decisions.

[27] I do think it is important to give effect to the legislative deference implicit in the leave to appeal requirement. Moreover, a decision by this tribunal that a proceeding before it is not, “based on a valid land use planning ground,” is, “not based on demonstrably substantive evidence,” and has, “no reasonable prosect of success,” is hardly a poster child for leave to appeal. That does not mean that the applicants will not be able to show serious concerns with the merits and that there is sufficient importance to this use of the board’s summary dismissal power to warrant leave to appeal. But I am convinced that there is independent content to the leave to appeal requirement in this case.

[28] If leave to appeal is granted, a comprehensive hearing on all substantive and remedial issues will be held before a panel. If leave to appeal is not granted, the remaining judicial review proceeding will be much simplified.

[29] I do not rule out the use of combined hearings of motions for leave to appeal and the appeal in future cases. This is the norm, for example, in the Superior Court of Justice on appeals from commercial arbitration where leave to appeal is required. However, before I simply opt for the most affordable route, I need to be satisfied that the combined hearing still does justice to the legislative deference afforded to this particular tribunal. It seems to me that once we have developed a body of jurisprudence concerning combining appeals with judicial review proceedings under Yatar, this issue may be ripe for review.

[30] There are many dates available for a two-hour motion for leave to appeal before a single judge in June. There are also many dates for a one-half day application before a panel in September. Counsel are directed to send an email to the Divisional Court office to obtain agreeable dates and then to agree on a schedule fo exchanging materials on both proceedings. Some modest amount of time will need to be left in the schedule to allow the judge who hears the leave to appeal motion to make a decision.

[31] In the very unlikely and untoward even that counsel cannot agree on a comprehensive schedule by May 10, 2024, they may convene a case conference with me at which I will split the difference between their positions.

Date: April 18, 2024