Court File and Parties

Citation: Casa Loma Residents Association v. 555 Davenport Holdings Inc., 2024 ONSC 5182 Divisional Court File Nos.: 147/24; 182/24 Date: 2024-09-24 Superior Court of Justice – Ontario Divisional Court

Re: Casa Loma Residents Association, Applicant/Respondent on Motion And: 555 Davenport Holdings Ltd. and City of Toronto, Respondents/Moving Party

Before: Matheson J.

Counsel: Mark Dunn, David Bronskill and Caroline Jordan, for the Moving Party Richard Macklin and Meaghan Coker, for the Respondent on the Motion Ryan Krahn, for the City of Toronto

Heard at Toronto: September 10, 2024, by video-conference

Endorsement

[1] 555 Davenport Holdings Ltd. moves to quash two proceedings in this Court, brought by the Casa Loma Residents Association (the CLRA). The CLRA seeks judicial review of, and leave to appeal from, the decision of the Ontario Land Tribunal (OLT) dated February 21, 2024 (the OLT Decision) dismissing CLRA’s four appeals to the OLT.

[2] The moving party submits that the Divisional Court proceedings are rendered moot by the recent Cutting Red Tape to Build More Homes Act, 2024, S.O. 2024, c. 16 (Bill 185), which amended the appeal rights in the Planning Act. The legislative amendments came into force in June 2024.

[3] The legislative amendments do not purport to terminate proceedings in the Divisional Court. However, the moving party submits that even if the CLRA is successful in this Court, that outcome will have no practical effect because the appeals to the OLT will then be dismissed again under the amended legislation.

[4] In response, the CLRA submits that the legislative amendments in Bill 185 have a gap and, as a result, the CLRA appeals to the OLT are not caught by the amendments that narrow appeal rights. In turn, the CLRA submits that the proceedings in this Court are not moot and should move forward. The City of Toronto takes no position on this motion.

[5] The moving party rejects the suggestion that there is a threshold test to succeed on this motion to quash. The moving party submits that the issue is entirely addressed by mootness, as determined under Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342. The moving party submits that the proceedings in this Court will have no practical effect and this Court should not exercise its discretion under Borowski to hear them.

[6] There is a threshold test for a motion to quash, and the threshold is high. The moving party must show that the leave motion is manifestly devoid of merit and that it is beyond doubt that the judicial review would fail: Schmidt v. Toronto-Dominion Bank, 1995 3502 (ON CA); Certified General Accountants Association of Canada v. Canadian Public Accountability Board, 2008 1536 (ON SCDC). Borowski may be raised in support of the motion, but it does not remove the need to meet the high threshold.

[7] I have considered the statutory interpretation arguments advanced by the parties. The moving party has not met the high threshold on a motion to quash, which depends on the interpretation of this new statutory language and the application of Borowski including the exercise of the court’s discretion. The motion is therefore dismissed. In these circumstances, these issues may be raised and decided by a panel in the ongoing court proceedings. I have therefore not set out the arguments on the merits in detail.

[8] There shall be no order as to costs.

[9] The moving party shall promptly provide an updated schedule for the remaining court materials on the leave motion, with input from the other parties, and request a date. Once that motion is decided, the parties shall propose a schedule for the exchange of court documents on the application for judicial review in order that it can be scheduled.

Matheson J.

Date: September 24, 2024