Overview

[1] The City of Toronto brings this motion for an extension of time to file an application to judicially review a decision of the Ontario Land Tribunal. In response to a motion for directions, the Tribunal determined that the respondent developer’s site plan application was complete. The crux of the dispute between the parties was whether the Tribunal could find the respondent’s application to be complete when it had failed to attend a pre-application consultation (PAC) as required by a City By-Law.

[2] The City argued the PAC was a mandatory pre-application requirement. In its submission, when the respondent did not complete the PAC, the Tribunal did not have jurisdiction under the City of Toronto Act, 2006, S.O. 2006, c. 11 (the Act) to determine whether the site plan application was complete.

[3] The Tribunal rejected the City’s interpretation of the Act. It found it had jurisdiction under subsections 114(4.6) and 114(4.7) of the Act, which allow a party to make a motion for directions after a negative notice in response to a site plan application or where no notice is given. It found the City had given a negative notice to the respondent’s application and that it had jurisdiction under s. 114(4.6). It rejected the argument that a PAC was needed for the Tribunal to have jurisdiction since the provisions of the Act specifying what is required for a complete application do not include the requirement for a PAC.

[4] The Tribunal’s reasons were dated December 12, 2023. Subsection 5(1) of the Judicial Review Procedure Act, R.S.O. 1990 c. J.1 (JRPA) provides that an application for judicial review shall be made no later than 30 days after the date of the decision from which review is sought. The City initiated this application for judicial review seven weeks after the deadline, on February 29, 2024.

Analysis

[5] Subsection 5(2) of the JRPA authorizes the court to grant an extension of time for making an application for judicial review “if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.” In considering whether there are apparent grounds for relief, the court will also assess the substantive merits of the application. An applicant need not show it has a successful application but weak grounds for review will weigh against granting an extension. In exercising its discretion, the court may also consider the length of the delay and any explanation offered for it: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683, at paras. 17-18, 22.

Delay

[6] Here, the delay was not lengthy and the City offered an acceptable explanation for it. As the City states, it always intended to challenge the decision. It initially filed a motion for leave to appeal within the required 15-day period. Section 24 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 provides for an appeal to this court, with leave, on a question of law “unless another Act specifies otherwise.” At a case conference on February 23, 2024, the respondent submitted the City’s appeal was barred by s. 114(4.8) of the Act, which provides: “The Ontario Land Tribunal’s determination under subsection (4.6) is not subject to appeal or review.”

[7] Following the case conference, at my direction, the Registrar issued a notice pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194. In my directions, I advised the court was concerned the motion for leave to appeal was frivolous or vexatious or otherwise an abuse of the process of the court because s. 114(4.8) states the Tribunal’s decision under s. 114(4.6) was not subject to appeal or review and because the court does not have discretion to hear an appeal where it has been barred by statute. The City initiated its motion for an extension of time to file an application shortly after the case conference, on February 29, 2024. In my view, the City’s initial challenge of the decision by motion for leave to appeal is a sufficient explanation for its delay.

Apparent Grounds for Relief

[8] The more difficult question is whether there are apparent grounds for relief because of a concern about prematurity. Following receipt of the parties’ submissions on this motion, I sent directions asking them to provide their positions on whether the proposed application would be premature. The respondent replied that the application would be premature. The City submitted the application would not be premature and, if the court were to determine the Tribunal’s decision was interlocutory, there are exceptional circumstances that merit judicial review.

[9] Having reviewed the parties’ submissions, I am not prepared to deny the extension of time based on prematurity, but the parties will be required to brief this issue in their submissions on the application. Although the motion for directions in this case formed part of an ongoing administrative proceeding, the City submits the next step in the proceeding, where the City would reach a decision on the overall site plan control application, involves different subject matter and legal considerations. Also, only the respondent would be able to appeal that decision. The City’s submissions raise the question of whether there is any other legal route for the City to challenge the Tribunal’s interpretation of the PAC requirement. I am not determining whether the proposed application would be premature, or whether there are exceptional circumstances that would justify the court hearing the application, only that this issue should be put before a panel.

[10] Apart from the question of prematurity, the City’s case has sufficient merit that an extension should not be denied on this ground. The City submits the Tribunal’s interpretation effectively invalidated its mandatory PAC By-law. In its submission, this was not a reasonable interpretation of the statute. It analogizes this case to City of Toronto v. SheppBonn Ltd., 2015 ONSC 3929 (Div. Ct.), in which this court found, in the circumstances of that case, the Tribunal had exceeded its jurisdiction on a motion for directions and effectively determined whether site plan control applied to the development proposal. The panel hearing the application will have the opportunity to consider that case, as well as Paletta International Corporation v. Burlington (City), 2004 8695 (ONCA), which the respondent relies on and was cited by the Tribunal. The City has raised a position of sufficient merit that it should be determined by a panel.

Prejudice

[11] The respondent has submitted evidence of the prejudice it claims it will suffer because of the City’s delay. It submits it will be subject to extra costs. For example, there is a $200 million demand debenture and a negotiated land loan on the properties it seeks to develop. Interest charges on the loan are approximately $530,000 per month. The respondent also submits that delay to one aspect of a development can have downstream impact on other aspects.

[12] The City submits the respondent has not advanced evidence it is prepared to immediately develop the properties. Instead, the respondent’s affiant admits the development requires further studies.

[13] I accept there is some prejudice to the respondent from the delay. The respondent is attempting to move the project forward efficiently. It is reasonable to conclude any delay to resolving the site plan application will have some impact on being able to do so, even if the impact cannot be quantified in the precise numbers the respondent has provided. But the real prejudice is caused by the dispute as a whole, not the additional seven weeks. In circumstances where the City advised it intended to challenge the decision from the outset and where the merits weigh in favour of having the matter determined by a panel, the prejudice caused by the seven-week delay is not sufficient to deny the extension of time.

[14] To address prejudice, the application may also be moved forward on an expedited schedule. For example, the court may have limited dates available for a hearing during the summer sittings. Within 7 days, the parties shall provide their proposed agreed schedule for the exchange of materials on the application by email to my attention. If they are not able to agree on a schedule, each party shall provide its proposed schedule to my attention.

Disposition

[15] The motion for an extension of time therefore is granted. With respect to costs, neither party has uploaded a bill of costs or costs outline to CaseLines, as required by the Consolidated Practice Direction for Divisional Court Proceedings. No costs are ordered.

O’Brien J

Date: May 7, 2024

City of Toronto v. Minto (Mimico) Inc., 2024 ONSC 2674

Case Summary

Overview

Analysis

Delay

Apparent Grounds for Relief

Prejudice

Disposition

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legislation 4