Court File and Parties

CITATION: Humberplex Developments Inc. v. Ontario (AG), 2024 ONSC 2335

DIVISIONAL COURT FILE NO.: DC-21-613-JR

DATE: 20240424

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Lococo, LeMay and O’Brien JJ.

BETWEEN:

HUMBERPLEX DEVELOPMENTS INC. and FRIENDS TO CONSERVE KLEINBURG INC. Applicants

– and –

ATTORNEY GENERAL FOR ONTARIO, ONTARIO LAND TRIBUNAL, KIRBY 27 DEVELOPMENTS LIMITED, EAST KLEINBURG DEVELOPMENTS INC., 1045501 ONTARIO LIMITED, CORPORATION OF THE CITY OF VAUGHAN and YORK CATHOLIC DISTRICT SCHOOL BOARD Respondents

COUNSEL:

F. Paul Morrison and Mark A. De Sanctis, for the Applicants

Susan Keenan and Bhavini Lekhi, for the Respondent Attorney General for Ontario

Ira Kagan and Sarah Kagan, for the Kirby 27 Respondents

Bruce Engell, for the Respondent Corporation of the City of Vaughan

HEARD at Toronto: March 27, 2024

REASONS FOR JUDGMENT

R. A. LOCOCO J.

I. Introduction

[1] The applicants Humberplex Developments Inc. and Friends to Conserve Kleinburg Inc. bring an application for judicial review, challenging the validity of O. Reg. 382/19, which amended O. Reg. 303/19: Transition for Planning Act Appeals. The amending regulation reimposed the more restrictive procedural regime that previously applied to appeals of municipal planning decisions heard by the Ontario Land Tribunal (the “Tribunal”). Under the amending regulation, the more restrictive regime was reimposed only on appeals solely by third party appellants.

[2] This application arose in connection with the applicants’ appeals of official plan amendments approved by the respondent Corporation of the City of Vaughan (“Vaughan”) to permit residential development on golf course property owned by the respondents Kirby 27 Developments Ltd., East Kleinburg Developments Inc. and 1045501 Ontario Ltd. (collectively, “Kirby 27”).

[3] In its initial decision dated December 11, 2019, the Tribunal decided that the more restrictive process contemplated by O. Reg. 382/19 applied to the applicants’ appeals. In its final decision dated June 30, 2021, the Tribunal dismissed the applicants’ appeals of the official plan amendments.

[4] The applicants seek an order quashing O. Reg. 382/19 as an improper exercise of authority by the respondent Attorney General for Ontario under the enabling statute. The applicants also ask the court to quash the Tribunal’s final appeal decision, as being made in reliance on an invalid regulation. The applicants also raise procedural fairness issues relating to the appeal process before the Tribunal.

[5] For the reasons that follow, I would dismiss the judicial review application.

II. Background

A. Applicants’ planning appeals and relevant statutes/regulations

[6] Kirby 27 owns property in Vaughan previously used as a golf course. In March 2017, Kirby 27 filed official plan amendment applications with Vaughan under the Planning Act, R.S.O. 1990, c. P.13, seeking to re-designate the golf course property for redevelopment as a residential community. On June 12, 2019, following a review and public consultation process, Vaughan City Council approved the official plan amendments, as Vaughan city staff recommended.

[7] On July 15, 2019, the applicants appealed the official plan amendments to the Tribunal, then known as the Local Planning and Appeal Tribunal (“LPAT”), pursuant to s. 17(24) of the Planning Act. At the time the appeals were filed, the Local Planning Appeal Tribunal Act, 2017, S.O. 2017, c. 23, Sched. 1 (“LPATA”) governed the adjudication of planning appeals before the Tribunal.

[8] By way of legislative background, the LPATA came into force on April 3, 2018, pursuant to the Building Better Communities and Conserving Watersheds Act, 2017, S.O. 2017, c. 23 (“Bill 139”). The LPATA was Schedule 1 to Bill 139. Prior to that time, appeals of municipal planning decisions, including approvals of official plan amendments, were by way of de novo appeal to the Ontario Municipal Board (the “OMB”). The participants in those appeals had the benefit of fulsome procedural rules similar to those that applied in court proceedings.

[9] Bill 139 amended the Planning Act and replaced the OMB with the LPAT, with revised substantive and procedural rules for municipal planning appeals: see Craft Acquisitions Corp. v. Toronto (City), 2019 ONSC 3636, 146 O.R. (3d) 407 (Div. Ct.), at paras 8-9, 113-120. The effect of the revised regime (the “Bill 139 regime”) was to “significantly change the role of the Tribunal” to entail “a very substantial investigative function, as opposed to the purely quasi-judicial function performed by the OMB”: Craft, at para. 116. The Bill 139 regime included more restrictive procedural rules for participants in the appeal process other than the Tribunal.

[10] Under the Bill 139 regime, the Tribunal had the power to examine a party or other person making a submission to the Tribunal, to require that party or person to produce evidence, and to require a party to produce a witness for examination by the Tribunal: see LPATA, ss. 40-42. Parties or persons other than the Tribunal (including municipalities, Planning Act applicants and third party appellants) could not adduce evidence or call witnesses on their own initiative, and time limits on oral submissions were authorized: LPATA, s. 42(3). This process provided greater authority to the Tribunal to direct evidence and procedure for planning appeals than was the case prior to Bill 139.

[11] On September 3, 2019, after the applicants’ planning appeals had been filed but before they were scheduled for a hearing, the More Homes, More Choice Act, 2019, S.O. 2019, c. 9 (“Bill 108”) came into effect. Schedules 9 and 12 of Bill 108 amended the Planning Act and the LPATA to (among other things) expand the grounds for planning appeals and introduce a new procedural regime for those appeals (the “Bill 108 regime”). As was the case under the Bill 139 regime, official plan amendments and zoning by-law approvals could still be appealed by “third parties”, that is, entities other than the Planning Act applicant (that made the amendment application) and the municipality (that approved the application). However, the LPATA amendments in Bill 108 repealed ss. 38-42 of the LPATA, having the effect of removing the previous prohibition on the ability of parties to certain planning appeals to call witnesses and removing the time limits on oral submissions: see Bill 108, Sched. 9, ss. 4(3), 9.

[12] Bill 108 also amended the LPATA to provide the Attorney General with the authority in s. 43.1 to make regulations providing for transitional rules for planning appeals commenced before, on or after Bill 108’s effective date: LPATA, s. 43.1(1). A regulation made under that provision was permitted, without limitation, to determine which classes of appeals would continue to follow the Bill 139 regime and which classes would proceed under the new Bill 108 regime: LPATA, s. 43.1(2)(a).

[13] Effective September 3, 2019, the Attorney General made O. Reg. 303/19: Transition for Planning Act Appeals, which set out transitional provisions for the conduct of different classes of Planning Act appeals, depending on the time period in which the appeals were filed and whether an appeal on the merits had been scheduled. Under s. 1(1)5 of that regulation, an appeal would be determined pursuant to the new Bill 108 regime if the appeal was commenced before September 3, 2019 and a hearing on the merits was not scheduled by that date. O. Reg. 303/19 addressed the procedure for appeals but did not alter the expanded grounds for appeal in Bill 108.

[14] By letter to applicants’ counsel dated September 18, 2019, the Tribunal advised that the applicants had the opportunity to provide new notices of appeal of the official plan amendments within 20 days, failing which the appeals would proceed under the prior provisions: see O. Reg. 174/16, as amended by O. Reg. 296/19: Transition Matters – General, s. 28. On October 8, 2019, the applicants submitted new notices of appeal to the Tribunal.

[15] After O. Reg. 303/19 came into effect, several municipalities (including Vaughan) and the Toronto and Region Conservation Authority (the “TRCA”) wrote to the Attorney General, expressing concern about the application of the Bill 108 regime to planning appeals filed under Bill 139 and not yet scheduled for a merits hearing. The Attorney General included letters from those bodies in his “Record of Decision” before the court on this judicial review application. The municipalities requested that the Bill 139 regime continue to apply to appeals of municipally approved planning applications where those appeals were filed by third parties under Bill 139. In a letter to the Attorney General, Vaughan’s Interim City Manager explained their concern:

O. Reg 303/19 as currently enacted has the unintended and undesired effect of substantially delaying the final approval of development applications by allowing third parties (not the applicant) who appealed the Council approval, to restart the appeal process and not be bound by the Bill 139 regime. Not only does this “restart” substantially lengthen the final approval of development, but it also substantially increases the cost (in both dollars and staff time) to the municipal taxpayers in defending their Council’s decision to approve the development. Further, there is a lack of fairness and deference to [local] decision making inherent in those circumstances where a decision made by Council in the context of one planning regime, Bill 139, is then reviewed on appeal in the context of a new and different planning regime, Bill 108. None of this is in the greater public interest.

[16] Effective November 15, 2019, the Attorney General made O. Reg. 382/19, which amended O. Reg. 303/19. Under ss. 1(1.1) and (1.2) of the amended regulation, the Bill 139 regime would continue to apply to certain appeals filed prior to September 3, 2019 that had not been scheduled for a merits hearing by November 15, 2019. The affected appeals were “third party” appeals, that is, appeals solely by persons other than a public body (including a municipality), the applicant, or the Minister in respect of an official plan amendment or a zoning by-law approval. The application of the Bill 139 regime to those appeals was by way of exception to the general transitional rule in s. 1(1)5 of O. Reg. 303/19. Under that exception, the new Bill 108 regime would apply to appeals filed prior to September 3, 2019 that had not been scheduled for a merits hearing by that date.

[17] How did the above legislative and regulatory changes affect the applicants’ appeals of the Vaughan official plan amendments?

[18] To recap:

a. At the time the applicants filed their appeals with the Tribunal in July 2019, the narrower Bill 139 regime applied to the applicants’ appeals.

b. With the coming into force of Bill 108 and O. Reg. 303/19 on September 3, 2019, the new Bill 108 regime became applicable to the applicants’ appeals upon their filing amended notices of appeal. The applicant’s appeals were commenced before Bill 108’s effective date but had not yet been set for a merits hearing by that date: O. Reg. 303/19, s. 1(1)5.

c. Effective November 15, 2019, O. Reg. 382/19, by its terms, amended O. Reg. 303/19 to provide that the narrower Bill 139 procedural regime applied to third party appeals that had not been set for a merits hearing by that date. The applicants were third parties, whose appeals had not been set for a merits hearing by that date.

d. The expanded grounds of appeal in Bill 108 continued to apply to the applicants’ appeals, since the applicants had provided amended notice of appeal within the time required by O. Reg. 296/19.

[19] Following O. Reg. 382/19’s effective date, the Tribunal requested and received counsel’s submissions as to whether that regulation applied to the applicants’ appeals. In the Tribunal’s initial decision dated December 11, 2019 (the “Initial Decision”), the Tribunal answered yes to that question, with the result the applicants’ appeals proceeded under the Bill 139 regime. At para. 23, the Tribunal stated:

The Tribunal finds that the purposive intent of O. Reg. 303 [as amended by O. Reg. 382/19] was that third party appeals, such as those before the Tribunal now, would be governed by the practices and procedures set out in LPATA as it read on September 2, 2019 [the day before Bill 108’s effective date].

[20] In January 2020, the applicants filed their Appeal Record and Case Synopsis with the Tribunal, which included affidavits and other documentary evidence. Later that month, Vaughan filed their Responding Appeal Record, which included affidavits from two expert witnesses.

[21] On September 29, 2020, following a case conference earlier that month, the Tribunal made a procedural order with respect to the conduct of the appeals in accordance with the Bill 139 regime. The Tribunal, at para. 9-10, set down the appeals for a two-day oral hearing by video and advised the parties that the Tribunal “will not require the attendance of, and will not examine, any witnesses at the oral hearing.” At para. 18, the order also provided that the applicants were not permitted to file reply or sur reply material in response to the material in Vaughan’s responding record. The Tribunal explained:

[18] The Appellants have asked the Tribunal for an opportunity to file what they have styled as Reply to the materials that have already been filed in this case. This is a third party appeal of the decision by the City to adopt OPA 47 and OPA 48. As such, the materials in this case begin with those filed municipally by the Applicants and the subsequent review and decision on the applications by the municipal council. The Appellants have already had ample opportunity to file their materials in response to the municipal action and did so. The requisite content of these materials is set out in the Tribunal Rules and included their appeal record and a synopsis of their case. The City then filed the synopsis of its case and a record in answer to that of the Appellants.

[19] Though characterized as Reply, the request by the Appellants to make further submissions is effectively a request to file Sur Reply. Sur Reply is rarely used or permitted. The Tribunal is not persuaded that Sur Reply is appropriate or necessary for a fair hearing in these proceedings.

[22] A two-day oral appeal hearing before the Tribunal proceeded by video in December 2020. The Tribunal reserved its decision.

[23] Effective June 1, 2021 (while the applicants’ appeals were under reserve), the Accelerating Access to Justice Act, 2021, S.O. 2021, c. 4 (the “AAJA”) came into force. That statute included as a schedule the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 (the “OLTA”). Under the AAJA:

a. The LPAT and other property-related tribunals were amalgamated and continued as the Ontario Land Tribunal: see OLTA, s. 2;

b. The LPATA was repealed and replaced by the OLTA: see AAJA, Sched. 6, s. 59(1); and

c. O. Reg. 303/19 was revoked: see AAJA, Sched. 6, s. 59(2).

[24] Also effective June 1, 2019, the Attorney General made O. Reg. 350/21: Transition, a new transitional regulation under the OLTA. That regulation effectively replicated the applicable provisions of O. Reg. 303/19, as amended by O. Reg. 382/19. Under O. Reg. 350/21, the Bill 139 regime continues to apply to appeals (like the applicants’ appeals) under s. 17(24) of the Planning Act of municipally approved applications for official plan amendments that were filed solely by third parties under Bill 139 and were not yet scheduled for a hearing on the merits before November 15, 2019: see O. Reg. 350/21, ss. 1(1)5, 1(2), 1(3)1.

[25] By decision dated June 30, 2021 (the “Final Decision”), the Ontario Land Tribunal (as successor to the LPAT) dismissed the applicants’ appeals of the official plan amendments and approved the amendments.

B. Divisional Court proceedings

[26] On July 14, 2021, the Divisional Court received the applicants’ Notice of Motion for Leave to Appeal the Tribunal’s Final Decision. If leave is granted, the appeal would be only on a question of law: OLTA, s. 24.

[27] On July 26, 2021, the applicants also filed a Notice of Application for Judicial Review. At the applicants’ request, the motion for leave to appeal is being held in abeyance while the judicial review application is proceeding.

[28] The applicants’ judicial review application record includes two affidavits, one sworn by land use planner Mr. Ramsay and the other by Mr. Donnelly, a lawyer the applicants previously retained on this application. The Attorney General, with the support of Kirby 27 and Vaughan, brought a motion to strike most of the Ramsay affidavit on the basis that the impugned paragraphs were not relevant or necessary to the issue of the regulation’s vires and offend basic admissibility rules because they contain improper hearsay, argument, and opinion on the law. By order dated May 26, 2023, Matheson J. struck part of the Ramsay affidavit and adjourned the remainder of the motion for determination by this panel.

[29] Following a case conference in July 2023, Nishikawa J. granted the applicants leave to provide an affidavit intended as reply to the letters from municipalities (including Vaughan) and the TRCA included in the Attorney General’s “Record of Decision”. Those letters were not part of the record underlying the Tribunal’s Final Decision. Mr. Donnelly is the deponent of the reply affidavit. The Attorney General, with the support of Kirby 27 and Vaughan, moved to strike the Donnelly reply affidavit on the basis that it contains inadmissible hearsay and biased legal opinions on domestic law that were not before the decision-maker. That motion is also before this panel for decision.

III. Parties’ positions and issues for determination

[30] In the judicial review application, the applicants seek an order quashing O. Reg. 382/19 as an improper exercise of the Attorney General’s authority under the enabling statute. The applicants also ask the court to quash the Tribunal’s Final Decision as being made in reliance on an invalid regulation. Among other things, the applicants submit that O. Reg. 382/19 is inconsistent with the purpose of Bill 108, its parent statute, and contravenes that statute by purporting to take away the applicants’ vested substantive rights under Bill 108 and the amended O. Reg. 303/19. The applicants also raise procedural fairness issues relating to the appeal process before the Tribunal.

[31] The Attorney General, Kirby 27 and Vaughan do not agree. Among other things, they submit that O. Reg. 303/19, as amended by O. Reg. 382/19, was a valid exercise of the authority expressly granted to the Attorney General under s. 43.1 of the LPATA, the regulation’s enabling statute. Other issues they raise include whether the application should be dismissed (in whole or part) on the following grounds:

a. Mootness, given that O. Reg. 303/19 has been repealed and therefore has no practical effect on the parties’ rights;

b. Prematurity, with respect to questions of law (which would include breach of procedural fairness in the appeal process), on the basis that the applicants’ right of appeal (with leave) to the Divisional Court on a question of law is an adequate alternative remedy; and

c. Delay, given the time elapsed between the Tribunal’s Initial Decision in November 2019 (finding that O. Reg. 382/19 applies to the appeals) and the applicants’ judicial review application in July 2021 (challenging that regulation’s validity).

[32] The issues for determination are as follows:

a. Regulation validity: Was O. Reg. 382/19 a valid exercise of the Attorney General’s regulation-making authority under the enabling statute?

b. Mootness: Should the application be dismissed for mootness?

c. Prematurity/procedural fairness: Should the applicants’ challenge to the procedural fairness of the planning appeals be dismissed as premature?

d. Delay: Should the application be dismissed for delay?

e. Motions to strike: Should the reply Donnelly affidavit and the balance of the Ramsay affidavit be struck?

[33] In the balance of these reasons, I will first address this court’s jurisdiction and the standard of review for the Tribunal’s decision. I will then address in turn the issues for determination listed above.

IV. Jurisdiction and standard of review

[34] This judicial review application relates to the exercise or purported exercise of a statutory power, which includes the power to make a regulation. Therefore, the Divisional Court has jurisdiction to hear this application: Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 1, 2, 6(1).

[35] The standard for assessing regulations upon judicial review is a matter of controversy in recent case law.

[36] In Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 810, [2013] 3. S.C.R. 810, at para. 24, the Supreme Court held that a “successful challenge to the vires of regulations requires that they be shown to be inconsistent with the objective of the enabling statute or the scope of the statutory mandate”. Following that approach, “the focus of judicial review of a regulation is narrow. It is not the role of the court to decide whether [a regulation] is effective, overly broad or unduly restrictive. These are policy choices made by the Ontario government….”: Hudson’s Bay Company ULC v. Ontario (Attorney General), 2020 ONSC 8046, 154 O.R. (3d) 103 (Div. Ct.), at para. 4.

[37] Under Katz, the role of the court upon review is limited to assessing whether the regulation is (a) consistent with the objective of its enabling statute, and (b) within the scope of the statutory mandate: Katz, at para. 24; Hudson’s Bay, at para. 37. As set out in Hudson’s Bay, at para. 37 (citing the relevant paragraphs in Katz), the following principles apply:

(a) Regulations are presumed to be valid. This means that challengers have the burden of demonstrating that the regulations are invalid. In addition, courts are to favour an interpretation that reconciles the regulation with its enabling statute so that, where possible, the regulation is construed in a manner which renders it intra vires” (para. 25) [emphasis in original].

(b) “Both the challenged regulation and the enabling statute should be interpreted using a ‘broad and purposive approach . . . consistent with this Court's approach to statutory interpretation generally’” (para. 26).

(c) Judicial review of a regulation is usually restricted to the issue of whether the regulation is inconsistent with the purpose of the enabling statute or whether a condition precedent was not met before the regulation was made (para. 27).

(d) Courts are not to assess the policy merits of a regulation or to decide whether it is “necessary, wise, or effective in practice” (para. 27).

(e) The motives for making a regulation are irrelevant (para. 27).

(f) Under-inclusiveness is not a valid ground for challenging a regulation as ultra vires (para. 40).

(g) Regulations must be “irrelevant”, “extraneous” or completely inconsistent with the statutory purpose to be found ultra vires. It would take an “egregious” case to strike a regulation down as ultra vires (para. 28).

[38] Since deciding Katz in 2013, the Supreme Court revisited the issue of standard of review for administrative decisions in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. At paras. 23-25, 32, the court stated that reasonableness is the presumptive standard on judicial review applications in the absence of clear legislative intent, a constitutional question, or a question of law of central importance to the legal system as a whole.

[39] In Vavilov, the court did not specifically address whether the reasonableness presumption applied to assessing regulations. However, at para. 111, the court cited Katz (at paras. 45-48) with approval for the principle that “an administrative decision maker interpreting the scope of its regulation-making authority in order to exercise that authority cannot adopt an interpretation that is inconsistent with applicable common law principles regarding the nature of statutory powers”. Citing Vavilov, at para. 111, the Divisional Court in Hudson’s Bay, at para. 39, rejected the submission that Vavilov changed the test for challenging regulations to require reasonableness assessment.

[40] Since Vavilov, other Canadian appellate courts have considered whether that decision had the effect of changing the standard of review for regulations.

[41] In Portnov v. Canada (Attorney General), 2021 FCA 171, 461 D.L.R. (4th) 130, the Federal Court of Appeal (per Stratas J.A.) found that the reasonableness standard applies to review of regulations, displacing the Katz framework. In Innovative Medicines Canada v. Canada (Attorney General), 2022 FCA 210, the Federal Court of Appeal followed Portnov. The British Columbia Court of Appeal also applied reasonableness standard in British Columbia (Attorney General) v. Le, 2023 BCCA 200, and 1120732 B.C. Ltd. v. Whistler (Resort Municipality), 2020 BCCA 101, 445 D.L.R. (4th) 448.

[42] The Alberta Court of Appeal took the opposite approach. In Auer v. Auer, 2022 ABCA 375, leave to appeal granted, [2023] S.C.C.A. No. 38, the appeal court held that the the test articulated in Katz remains the appropriate test to apply when the vires of a regulation is being challenged, and that this test has neither been overtaken nor modified by Vavilov. In TransAlta Generation Partnership v. Alberta (Minister of Municipal Affairs), 2022 ABCA 381, leave to appeal granted, [2023] S.C.C.A. No. 135, the Alberta Court of Appeal followed the approach taken in Auer. The Supreme Court of Canada has granted leave to appeal both Alberta decisions. The appeals are scheduled to be heard together on April 25, 2024.

[43] In Sul v. St. Andrews (Rural Municipality), 2023 MBCA 25, 479 D.L.R. (4th) 160, the Manitoba Court of Appeal also considered whether the presumptive standard of reasonableness in Vavilov applied to assessing the vires of legislative action in the form of municipal by-laws and resolutions. In the decision under review in Sul, the application judge applied the reasonableness standard of review, adopting the joint position of the parties to the application: Sul, at para. 10. On appeal, the appellant changed her position, arguing that the application judge erred in applying the reasonableness standard: Sul, at paras. 16, 19. The appeal court, at para. 19, noted that the “law regarding the standard of review to be applied to the vires of legislative action is also evolving” and, at paras. 20-36 undertook a review of recent case law, including reference to Katz, Vavilov, Portnov, Innovative Medicines, Whistler and Auer.

[44] In Sul, at para. 37, the appeal court ultimately decided that it was “not prepared to state that the application judge erred in choosing to apply the reasonableness standard”, noting that applying either standard of review argued in that case “leads to the same result.” The court also stated that given “the developing jurisprudence and the lack of comprehensive argument” before the court, the issue was “better left to be decided in a future case”.

V. Regulation validity: O. Reg. 382/19 was inter vires

[45] As explained below, I have concluded that O. Reg. 382/19 was a valid exercise of the Attorney General’s statutory power under s. 43.1 of the LPATA. That conclusion would be the same whether the governing authority for determining the standard of review is Katz or Vavilov. Therefore, as in Sul, it is not necessary determine the standard of review issue currently before the Supreme Court of Canada in Auer and TransAlta.

O. Reg. 382/19 is not inconsistent with its enabling statute

[46] The applicants submit that O. Reg. 382/19 is ultra vires its parent statute since the regulation is inconsistent with the object and purpose of Bill 108. In making that submission, the applicants are applying the test for challenging a regulation’s vires set out in Katz, at para. 24, that a “successful challenge to the vires of regulations requires that they be shown to be inconsistent with the objective of the enabling statute or the scope of the statutory mandate”.

[47] The applicants argue that Bill 108 demonstrated the Legislature’s clear intention to amend the regime governing planning appeals by revoking the restrictive Bill 139 regime and replacing it with a fulsome evidentiary process for planning appeals, consistent with Bill 108’s legislative purpose of increasing housing supply and promoting protection for the environment without sacrificing a robust appeal process: see Bill 108, preamble. The applicants cite the Divisional Court’s majority decision in Craft, at para. 120, which they say critically described the restrictive Bill 139 regime for planning appeals as a process that contemplated “the active intervention of the Tribunal … that departs significantly from the traditional quasi-judicial function of the board and a significantly reduced and changed involvement of [appeal] participants”.

[48] The applicants argue that O. Reg. 382/19 flies in the face of Bill 108’s clear legislative intent by forcing third party appeals into the discredited Bill 139 regime, which restricted the manner in which evidence could be adduced as well as the nature and amount of such evidence. The applicants say that O. Reg. 382/19, if allowed to stand, would thwart Bill 108’s legislative intent to reinstate a fulsome process for planning appeals, including third party appeals.

[49] I do not agree with that analysis.

[50] The applicants are correct that by amending the LPATA, Bill 108 introduced a different procedural regime for planning appeals. However, their analysis does not effectively address the addition of s. 43.1 of the LPATA, which provided the Attorney General with broad authority to determine the classes of appeal that would continue under the Bill 139 regime and which classes would be governed by the new Bill 108 regime. Contrary to the applicants’ submission, the majority decision in Craft did not criticize the Bill 139 regime, adjudicate its fairness or express a preference for the Bill 108 regime. What the court did was to describe the Bill 139 regime and how it differed from the Bill 108 regime: Craft, at paras. 118-120.

[51] The applicants frame their judicial review application as a challenge to O. Reg. 382/19, which they say is inconsistent with the object and purpose of its parent or enabling statute, Bill 108. That description mischaracterizes both the impugned regulation and its enabling statute.

[52] O. Reg. 382/19 was an amending regulation that was spent when the amended O. Reg. 303/19 took effect on November 15, 2019. A proper analysis of the regulation’s vires should focus on O. Reg. 303/19 as amended by O. Reg. 382/19, and whether the regulation in its amended form was ultra vires its enabling statute.

[53] As well, Bill 108 was not the amended regulation’s parent or enabling statute. Its enabling statute was the LPATA. Bill 108 amended a number of statutes, including the LPATA, in that case to remove the previous prohibition on the ability of parties to certain planning appeals to call witnesses and remove the time limits on oral submissions. The LPATA, as amended by Bill 108, also included s. 43.1, which provided the Attorney General with broad authority to make regulations providing for transitional rules for planning appeals commenced before, on or after Bill 108’s effective date (being September 3, 2019).

[54] Section 43.1 of the LPATA in full provided as follows:

Transitional regulations, Planning Act appeals

43.1 (1) The Minister [defined as the Attorney General] may make regulations providing for transitional rules respecting appeals to the Tribunal under subsection 17 (24), (36) or (40), 22 (7), 34 (11) or (19) or 51 (34) of the Planning Act that were commenced before, on or after the effective date.

Same

(2) A regulation made under subsection (1) may, without limitation,

(a) determine which classes of the appeals shall be continued and disposed of under this Act as it read immediately before the effective date, and which classes of the appeals shall be continued and disposed of under this Act as it read on the effective date, subject to such modifications to the application of this Act as it read before or on the effective date as may be specified in the regulation;

(b) deem a matter or proceeding to have been commenced on the date or in the circumstances specified in the regulation.

Conflict

(3) A regulation made under subsection (1) prevails over any provision of this Act specifically mentioned in the regulation.

Definition

(4) In this section,

“effective date” means the date on which section 8 of Schedule 9 to the More Homes, More Choice Act, 2019 came into force [being September 3, 2019].

[55] Section 43.1 of the LPATA expressly authorized the Attorney General to determine which classes of appeals would be continued and disposed of under the LPATA as it read immediately before the effective date (that is, the Bill 139 regime) and which classes of appeals would be governed by the LPATA as it read on the effective date (that is, the new Bill 108 regime): LPATA, s. 43(2)(a). “Effective date” was defined as the date the relevant provisions in Bill 108 came into force, being September 3, 2019: LPATA, s. 43.1(4).

[56] By its terms, s. 43.1(2)(a) anticipated that certain classes of appeals filed before the effective date would continue under the Bill 139 regime and gave the Attorney General authority determine by regulation which ones. Section 43.1(1) explicitly referred to the type of appeal filed by the applicants (namely appeals of official plans and official plan amendments adopted by municipalities under s. 17(24) of the Planning Act) as a class of appeal that the Attorney General may determine continued under the Bill 139 regime.

[57] Before amendment, O. Reg. 303/19 set out transition provisions for different classes of appeals depending on the time period in which they were filed and whether an appeal on the merits had been scheduled. O. Reg. 382/19 amended O. Reg. 303/19 to add a class of appeals that would continue under the Bill 139 regime based on a third criterion – that the appeals were filed under Bill 139 solely by third parties challenging municipally-approved applications for official plan amendments or zoning by-laws. The words and purpose of the enabling statute fully authorized the Attorney General to determine that this class of appeals should continue to follow the procedure in place when the appeals were filed: LPATA, s. 43.1(2)(a).

[58] The broad discretion set out in s. 43.1 suggests that its goal within the LPATA was to allow the Attorney General to craft a suitable transition from one procedural regime to another. There were no statutory prerequisites or specified criteria that the Attorney General was required to consider in determining which classes of appeals will fall under each regime, and no limitation of certain classes to one regime or the other. Section 43.1(2) provided a clearly expressed legislative intent that the Attorney General’s authority be construed broadly (“without limitation”) to place different classes of existing appeals in the Bill 139 regime or the new Bill 108 regime. Nothing in the LPATA suggests limits on this discretion. The clear words of s. 43.1 are to the contrary.

O. Reg 382/19 does not contravene Bill 108 by taking away vested substantive rights

[59] The applicants also submit that O. Reg. 382/19 contravenes Bill 108 by purporting to take away the applicants’ vested substantive rights under Bill 108 and the unamended O. Reg. 303/19. The applicants argue that as of September 3, 2019, planning appeals previously filed under Bill 139 became subject to the new Bill 108 regime if the appellants, at their option, filed new notices of appeal in accordance with O. Reg. 174/16, as amended by O. Reg. 296/19. On October 18, 2019, the applicants filed new notices of appeal within the required time, which they say provided them with the benefit of expanded grounds of appeal and more fulsome procedural rights under Bill 108. The applicants submit that O. Reg. 382/19 contravened Bill 108 by purporting to deprive the applicants (and other third party appellants) of substantive rights that vested when they filed their amended notices of appeal.

[60] The applicants contest the Attorney General’s position that the intention in making O. Reg. 382/19 was to “improve the operations of the Local Planning Appeal Tribunal”, as set out in the Attorney General’s letters to certain municipalities and other public bodies. Those bodies had written to the Attorney General, expressing concern about substantial delay to the final approval of development applications that they said would arise from allowing third party appellants to “restart” planning appeals commenced under the Bill 139 regime. On this application, the applicants say that those letters apparently motivated the Attorney General to adopt O. Reg. 382/19, when there was in fact no evidence of any substantial delay in development approvals. The applicants rely on the Donnelly reply affidavit, which sets out the results of a survey Mr. Donnelly conducted of third party appeals before the LPAT in the Greater Toronto Area during the period from April 3, 2018 (Bill 139’s effective date) until September 2, 2019 (prior to Bill 108’s effective date). The applicants submit that rather than improving the LPAT’s operation, O. Reg. 382/19 purported to remove legislated expanded rights under Bill 108 without authority or justification.

[61] To support their position, the appellants rely on the Divisional Court’s decision in Friends of Simcoe Forests Inc. v. Ontario (Minister of Municipal Affairs and Housing), 2021 ONSC 3813, 15 M.P.L.R. (6th) 209 (Div. Ct.). The applicant in Simcoe Forests sought judicial review of Simcoe county’s decision (approved by the Minister of Municipal Affairs and Housing) to approve an official plan amendment to allow the construction of a waste management plant in a natural heritage area. The applicant appealed that decision to the LPAT, arguing that construction of the facility was contrary to a “Growth Plan” adopted in 2019 by the Lieutenant Governor in Council (the “LGIC”) that included policies to protect natural heritage features. On appeal before the LPAT, the applicant sought to challenge the vires of a regulation that purported to exempt the facility from the natural heritage policies in the 2019 Growth Plan. The Minister relied on his authority in the enabling statute to make regulations providing for “transitional matters … necessary or desirable to facilitate the implementation of … a growth plan.” On appeal of the official plan amendment, the LPAT refused to allow the applicant to argue that the Minister exceeded his authority in making that exempting regulation. Upon judicial review, the Divisional Court held that the exempting regulation was ultra vires, finding that the regulation did not fall within the scope of “transitional matters” since there had been no change in the key policies in the 2019 Growth Plan since the previous Growth Plan approved by the LGIC in 2017.

[62] The applicants submit that, consistent with the court’s decision in Simcoe Forests, O. Reg. 382/19 is ultra vires of Bill 108 (which amended the LPATA), arguing that the Attorney General cannot alter substantive rights enacted by the Legislature under the guise of a transitional regulation. The applicants cite the following passage in Simcoe Forests, at para. 69:

It is also not consistent with the rule of law. When the law changes midstream during a proceeding, there are necessarily concerns about stability, predictability, consistency and fairness that arise. It is the role of transitional law to mitigate those concerns. It is not the role of transitional law to change the rules when the body charged with making the law at issue has made no change to that law. If it were, transitional law would only add to the unpredictability and unfairness of the legal framework and increase the likelihood that the citizens who are governed by that framework lose faith in its integrity. [Emphasis added.]

[63] As explained below, I do not agree with the applicants that O. Reg. 382/19 contravened Bill 108 by taking away vested substantive rights. In my view, Simcoe Forests does not assist the appellants.

[64] When the applicants filed their original notices of appeal, their Planning Act appeals were subject to the Bill 139 regime under the LPATA, as it read prior to the effective date of Bill 108. When the applicants filed their amended notices of appeal in October 2019 (after Bill 108 and the unamended O. Reg. 303/19 came into force), the applicants had the benefit of expanded grounds of appeal under Bill 108 amendments to the Planning Act. As well, their appeals became subject to a more fulsome procedural regime under the LPATA, as amended by Bill 108.

[65] Effective November 15, 2019, O. Reg. 382/19 amended O. Reg. 303/19 to provide that the more restrictive procedural requirements in Bill 139 once again applied to third party appeals, including those of the applicants.

[66] Contrary to their submissions, the applicants were not thereby deprived of vested substantive rights without statutory authority.

[67] The applicants continued to have the benefit of expanded grounds of appeal under the Planning Act, which were unaffected by O. Reg. 382/19. Since their third party appeals had not been set down for a hearing by November 15, 2019, the appeal process under Bill 139 once again became applicable to their appeals, as it had been when they previously brought their appeals. By its express terms, s. 43.1 of the LPATA provided the Attorney General clear authority to make the amended regulation, as previously explained. The only procedural step the applicants had taken during the brief period of time that the unamended O. Reg. 303/19 was in force was to file the amended notices of appeal.

Values underlying transitional law were not offended

[68] I see no merit in the applicants’ submission that O. Reg. 382/19 offended values underlying transitional law by purporting to deprive them of access to the Bill 108 regime. While the values referred to in Simcoe Forests are important, they are not independent bases to invalidate a regulation, and that is not what the court did in Simcoe Forests. Instead, these values may be relevant in considering whether the regulation was authorized by the enabling provision, as the court did in Simcoe Forests.

[69] The question at issue that case was “can the Minister use his authority to make regulations providing for transitional matters to grant an exemption to the application of certain key policies in a growth plan when no change affecting those policies has taken place”: Simcoe Forests, at para. 53. The court, at paras. 56, 62-63, found that the Minister’s authority to make regulations “providing for transitional matters” were an internal limit on the scope of the Minister’s authority.

[70] The problem the court identified in Simcoe Forests was that there were no transitional matters. The regulation that the Minister made purported to exempt the facility from the natural heritage policies in the 2019 Growth Plan adopted by the LGIC, but no change had been made to those policies from the 2017 Growth Plan: Simcoe Forests, at para. 58. As well, only the LGIC had the authority to revoke a Growth Plan: Simcoe Forests, at para. 55. By exempting projects from policies that had not changed and which required approval beyond the Minister, the court found, at paras. 58, 68, that the Minister went outside the scope of his authority to provide for “transitional matters” and “undercut the decisions of the Lieutenant Governor in Council”.

[71] Simcoe Forests is clearly distinguishable from the application before this court. Unlike in Simcoe Forests, there was a clear change in the law between Bill 139 and Bill 108. Further, the Legislature gave authority only to the Attorney General in s. 43.1 of the LPATA to address which classes of appeals fall under each regime. The Attorney General in turn did not decide any matters except which classes of appeals should fall within each regime, as he was expressly authorized to do by s. 43.1(2)(a) of the amended regulation. Unlike the Minister in Simcoe Forests, the Attorney General did not go beyond the scope of his express authority in s. 43.1 to provide for “transitional rules respecting appeals to the Tribunal”.

[72] Section 43.1 gave the Attorney General the authority to both make and amend regulations. Section 54(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, confirms that the “[p]ower to make regulations includes power to amend, revoke or replace them from time to time.” There were no limitations in s. 43.1 that prevented the Attorney General from responding to evolving circumstances or new information by amending O. Reg. 303/19. Therefore, O. Reg. 303/19 is both consistent with the scope of its enabling statute and reasonable.

[73] The Attorney General also makes further submissions to support his position that O. Reg. 382/19 was consistent with the values underlying transitional law and did not prejudice the applicants’ substantive rights or treat them unfairly. Since I have already concluded that the making of O. Reg. 382/19 did not offend those values or take away vested substantive rights, it is unnecessary to consider the Attorney General’s further submissions relating to the regulation’s effect on appeal participants. As well, I consider it premature to address the applicants’ procedural fairness submissions in the context of this judicial review application, as explained further below under “Prematurity/procedural fairness”.

Motivation for regulation not relevant in determining its vires

[74] As noted previously, the applicants suggest that the Attorney General’s apparent motivation for amending O. Reg. 303/19 arose from letters he received from Vaughan and other municipalities and bodies, alleging that “substantial delay” in development approvals would result from the “restart” of third party appeals under the Bill 108 regime. The applicants submit that the Attorney General’s reliance on the information in the municipalities’ letters was misplaced, since there was no evidence of any substantial delay in development approvals, relying on the Donnelly affidavit. The Attorney General confirms that he took those submissions into account in deciding to amend O. Reg. 303/19 but submits that his motivation for amending the O. Reg. 303/19 was not a relevant factor in determining the regulation’s vires.

[75] Consistent with previous case law, I agree with the Attorney General that the motives for making a regulation are irrelevant to the question of vires: see Katz, at para. 27; Hudson’s Bay, at para. 37. The question for determination is whether the Attorney General was authorized to adopt the regulation, on a broad and purposive reading of the purpose and scope of authority granted in the enabling statute (as set out in Katz) or whether making the regulation met the standard of reasonableness (as set out in Vavilov).

[76] Contrary to the applicants’ submissions, I see no error in the Attorney General’s considering information received from municipalities and other bodies about their concerns, as part of the context surrounding the amendment. I see no sufficient basis to second-guess the adequacy of the information the Attorney General considered. In essence, the applicants are challenging policy choices the Attorney General made in amending the regulation, which is beyond the court’s role to decide: Hudson’s Bay, at para. 3.

LPAT Rules did not improperly delegate power to the Tribunal

[77] I would not give effect to the applicants’ position that the LPAT’s procedural rules improperly delegated power to individual Tribunal panels.

[78] Section 32(1) of the LPATA empowered the LPAT to make rules governing its practices and procedures. Section 32(2) permitted the rules to be of general or particular application. Sections 25.1(1) and (2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) are to the same effect.

[79] The LPAT created Rules of Practice and Procedure (the “LPAT Rules”) pursuant to section 32 of the LPATA and s. 25.1 of the SPPA. The LPAT Rules applied to all matters before the LPAT. The LPAT Rules included r. 22.3, which provided as follows:

22.3 Procedure at a Hearing

The Tribunal may, by order, establish, and direct the procedure at a hearing event, unless an Act provides differently, in order to ensure the issues in dispute are disposed of in the most just, cost effective and efficient manner.

[80] In their factum, the applicants submit that r. 22.3 offended the maxim delegatus non potest delegare, since r. 22.3 purported to subdelegate power to each individual LPAT panel to establish the procedure applicable to any particular hearing on an ad hoc basis. The applicants argue that the LPAT panel did so in this case, representing the exercise of improperly delegated authority. However, their submissions do not elaborate on what aspects of the Tribunal’s procedure in this case departed from the detailed provisions of general application otherwise applicable to the Bill 139 regime, including the LPAT Rules. With respect to other matters in issue in this application, the essence of the applicants’ position is that they were disadvantaged in being subject to the restrictive Bill 139 regime, rather than being subject to rules that the Tribunal made up as they went along.

[81] I see no merit in the applicants’ position on this issue. There is nothing improper about r. 22.3. That rule is standard in nature, consistent with the statutory authority given to the LPAT and essential for the functioning of a tribunal of its nature. The applicants’ analysis also ignores section 12(1) of the LPATA, which provided the LPAT with authority “to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred upon the Tribunal under this Act or any other general or special Act.”

VI. Mootness

[82] As a preliminary issue, the Attorney General submits that the applicants’ judicial review application should be dismissed as moot, without otherwise considering its merits. The basis for that position is that since O. Reg. 303/19 (as amended by O. Reg. 382/19) has been repealed, that regulation has no practical effect on the rights of the parties. The Attorney General further notes that if the appeals were remitted to the Tribunal for redetermination, O. Reg. 350/21 made under s. 29(2) of the OLTA would require the Tribunal to follow the same Bill 139 regime that applied to the applicants’ appeals: see O. Reg. 350/21, ss. 1(1)5, 1(2), 1(3)1.

[83] In Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 353, the Supreme Court confirmed that the doctrine of mootness applies “when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case.” The rationale is that “[c]ourts exist to resolve real disputes between parties and not to provide opinions in response to hypothetical or academic problems”: Tamil Co-operative Homes Inc. v. Arulappah (2000), 49 O.R. (3d) 566 (C.A.), at para. 13. Repeal or amendment of legislation is a well-established category of mootness: Borowski, at p. 354.

[84] As a general principle, courts do not decide moot cases: Borowski, at p. 353; Tamil, at para. 13; Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265, 90 O.R. (3d) 451, at paras. 23-41. The onus falls to the party seeking to have the matter decided to justify a departure from this principle: Tamil, at para. 17; Mayfair, at para. 32. In assessing whether to exercise discretion to hear a moot case, courts will consider:

a. The presence or absence of the necessary adversarial context;

b. The concern for judicial economy; and

c. The need for the court to be sensitive to its role as the adjudicative branch in our political framework: Borowki, at pp. 358-63; Maystar, at para. 43.

[85] In order to determine whether the mootness principle applies in this case, the difficulty I have is that is necessary to delve into the merits to a significant extent. This is not a situation in which the dispute between the parties has necessarily become academic. If the applicants were correct that O. Reg. 382/19 violated the applicants’ substantive rights that vested upon filing amended notices of appeal, it may have been open to the court to direct a rehearing of the appeal in accordance with the Bill 108 regime. Even if O. Reg. 350/21 by its terms would have precluded that outcome, it would remain open to the applicants to raise any challenge they had to that regulation and its applicability at a subsequent hearing. O. Reg. 350/21 was not before us to be adjudicated. In any event, since I have concluded that O. Reg. 303/19, as amended by O. Reg. 382/19, was in fact inter vires and did not offend vested substantive rights, it becomes unnecessary to consider the mootness issue further.

VII. Prematurity/procedural fairness

[86] The Attorney General and Vaughan also raise the issue of prematurity.

[87] In addition to their judicial review application, the applicants bring a Notice of Motion for Leave to Appeal the Tribunal’s Final Decision to this court. At the applicants’ request, the leave motion is being held in abeyance while the judicial review application is proceeding. If leave is granted, the appeal would be only on a question of law: OLTA, s. 24. The basis for the applicants’ motion for leave includes that the Tribunal erred in law in the conduct of the appeal, such as by failing to afford procedural fairness to the applicants in its rulings.

[88] In the context of case management, the parties were advised that if judicial review and an appeal were both being pursued in the same matter, the Divisional Court’s practice is for the judicial review and the appeal to be heard together. The rationale for that practice is to avoid “the systemic difficulties associated with duplicative judicial reviews and appeals” by addressing all legal issues arising from the underlying matter at the same time: see Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446 (“Yatar CA”), at paras. 55-56, rev’d 2024 SCC 8 (“Yatar SCC”). While in Supreme Court reversed the result in Yatar CA on other grounds (as discussed further below), Yatar SCC did not call into question the Divisional Court’s practice relating to management of concurrent judicial reviews and appeals. The practice was described in Yatar CA, at paras. 55-56:

55. First, if a party intends to utilize both their right of appeal and their right to seek judicial review, then those proceedings must be brought together. Put simply, a party cannot first exercise their right of appeal and then, if unsuccessful, bring a judicial review application. “Litigation is not to be conducted by instalment”: Shearer v. Oz, 2021 ONSC 7844, at para. 5.

56. Second, once both proceedings are commenced, a motion must be brought for the two proceedings to be heard together with a single appeal book/application record and factum covering both proceeding.

[89] At the applicants’ request (with the other parties’ concurrence), the judicial review application proceeded first in this case, to allow determination of the threshold issue of the regulation’s vires. In these circumstances, however, the parties were aware that proceeding in this fashion may raise the issue of prematurity.

[90] The Attorney General and Vaughan submit that to the extent the judicial review application raises questions of law relating to the hearing itself as opposed to the vires of the regulation, those aspects of the application should be dismissed as premature. They say that those questions are more appropriately addressed in the applicants’ motion for leave to appeal and (if leave is granted) the appeal, which they say provides an adequate alternative remedy to address those questions: see Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, at para. 42.

[91] In the course of the applicants’ submissions relating to the regulation’s vires, the applicants also challenge the procedural fairness of Bill 139 regime under which the planning appeals were conducted, suggesting that lack of procedural fairness before the Tribunal provides an alternative basis for voiding the Final Decision. However, the grounds for the application set out in the applicants’ amended Notice of Application for Judicial Review focus on the vires of the challenged regulation. The Notice of Application describes the differences between the hearing procedures under the Bill 139 regime and the Bill 108 regime but, unlike the Notice of Motion for Leave to Appeal, it does not allege that the Tribunal erred in law in the conduct of the hearing by failing afford procedural fairness to the applicants in its rulings.

[92] Consistent with the applicants’ originating documents in this court, I have concluded that the issue of breach of procedural fairness should be addressed in the context of the applicants’ leave to appeal motion and (if leave is granted) the appeal, which is confined to questions of law and provides an adequate alternative remedy to address that issue.

[93] In reaching that conclusion, I have considered the Supreme Court’s recent decision in Yatar SCC, in which the court, at para 4, found that the Divisional Court and the Court of Appeal erred in concluding that only in “exceptional circumstances” or in “rare cases” would judicial review be available where there is a right of appeal limited to questions of law only. Strickland, at paras. 43-44 (quoted in Yatar SCC, at para. 56), indicates that the exercise of discretion to decline to undertake judicial review based on the existence of an adequate alternative remedy requires the court to determine the appropriateness of judicial review:

The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate…. This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme in issue…

[94] The conclusion that the motion for leave to appeal and appeal provide an adequate alternative remedy is consistent with the applicable statutory scheme, under which the applicants have the opportunity to address questions of law (including procedural fairness) in the context of an appeal, and have indeed raised the same procedural fairness questions in their leave motion as in their submissions on this application. In these circumstances, Yatar SCC is distinguishable and this court is justified in declining to determine procedural fairness issues in the context of the applicants’ judicial review application.

VIII. Delay

[95] As a preliminary issue, Kirby 27 and Vaughan also raise the issue of delay. They submit that the applicants’ judicial review application should be dismissed for delay, given the excessive time elapsed between the Tribunal’s Initial Decision in December 2019 (finding that O. Reg. 382/19 applies to the appeals) and the applicants’ judicial review application in July 2021 (challenging that regulation’s validity). They say that it was open to the applicants at any time to challenge the vires of O. Reg. 382/19. They argue that the applicants should have done so promptly after the Tribunal’s Initial Decision to resolve the issue of whether the Tribunal was proceeding under the correct procedural regime, rather than causing significant prejudice to Kirby 27, Vaughan and the public arising from the appeals’ proceeding under the challenged Bill 139 regime.

[96] I see no merit in the submission that the applicant’s judicial review application should be dismissed for delay. Previous case law provided that unless there are exceptional circumstances, the court will generally decline to consider an application for judicial review until the underlying tribunal proceeding has been completed: Gill v. College of Physicians and Surgeons, 2021 ONSC 7549, at para. 31 (Div. Ct.); Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 O.R. (3d) 798, 99 D.L.R. (4th) 738 (Div. Ct.).

[97] The rationale for this position was summarized in Canada (Border Services Agency) v. C.B. Powell Limited, at paras. 31-32 (quoted with approval in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 69), as follows:

[A]bsent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the 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 reviewing 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. [Citations omitted.]

[98] The bar for establishing exceptional circumstances is high: Kadri v. Windsor Regional Hospital, 2019 ONSC 5427, at para. 59 (Div. Ct.); C.B. Powell, at para. 33. Given previous case law, it was entirely appropriate for the applicants to initiate their application after the Tribunal rendered a final decision to avoid a challenge for prematurity.

[99] Accordingly, as a preliminary issue, I would not dismiss the applicants’ judicial review application for delay. The applicants acted reasonably in waiting until the Final Decision before challenging the vires of O. Reg. 382/19.

IX. Motions to strike

[100] Should the Donnelly reply affidavit and the balance of the Ramsay affidavit be struck?

[101] As previously noted, the applicants’ judicial review application record includes two affidavits, one sworn by land use planner Mr. Ramsay and the other by Mr. Donnelly, a lawyer they previously retained on this application. The Attorney General, with the support of Kirby 27 and Vaughan, brought motions to strike with respect to both those affidavits.

[102] By order dated May 26, 2023, Matheson J. struck part of the Ramsay affidavit, on the basis that the impugned provisions offended basic admissibility rules. Matheson J. adjourned the remainder of the motion for determination by this panel, which included paragraphs challenged on the basis of their relevance to the issues before the court on judicial review. The motion to strike the Donnelly reply affidavit is also before this panel for decision. The parties agreed that the motions would be disposed of based on written submissions included in the parties’ factums, without additional oral submissions.

[103] I have reviewed the relevant portions of the Ramsay affidavit and the Donnelly reply affidavit, together with relevant cross-examination material. Having done so, I found that the material had no effect one way or the other on the outcome of this application. I would dispose of the motions to strike on that basis, without considering the merits of the parties’ submissions.

X. Disposition

[104] Accordingly, I would dismiss the application for judicial review.

[105] Counsel have advised that the parties have resolved the issue of costs. If requested, the formal order will address costs in accordance with the parties’ agreement.

___________________________ Lococo J.

___________________________ LeMay J.

___________________________ O’Brien J.

Date of Release: April 24, 2024

CITATION: Humberplex Developments Inc. v. Ontario (AG), 2024 ONSC 2335

DIVISIONAL COURT FILE NO.: DC-21-613-JR

DATE: 20240424

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Lococo, LeMay and O’Brien JJ.

BETWEEN:

HUMBERPLEX DEVELOPMENTS INC. and FRIENDS TO CONSERVE KLEINBURG INC.

Applicants

– and –

ATTORNEY GENERAL FOR ONTARIO, ONTARIO LAND TRIBUNAL, KIRBY 27 DEVELOPMENTS LIMITED, EAST KLEINBURG DEVELOPMENTS INC., 1045501 ONTARIO LIMITED, CORPORATION OF THE CITY OF VAUGHAN and YORK CATHOLIC DISTRICT SCHOOL BOARD

Respondents

REASONS FOR JUDGMENT

R. A. LOCOCO J.

Date of Release: April 24, 2024