Court File and Parties

CITATION: South Junction Triangle Grows Neighbourhood Association v. City of Toronto, 2025 ONSC 1952

DIVISIONAL COURT FILE NO.: 541/23

DATE: 20250409

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SOUTH JUNCTION TRIANGLE GROWS NEIGHBOURHOOD ASSOCIATION, Applicant/Moving Party

AND:

CITY OF TORONTO, Respondent

BEFORE: Matheson, Bale and Nakatsuru JJ.

COUNSEL: Self-represented Applicant/Moving Party, by Cara Sweeny with leave

David A. Gourlay and Georgia Tanner, for the Respondent

HEARD at Toronto: April 7, 2025

ENDORSEMENT

[1] The moving party seeks a review of the decision of Shore J. dated August 23, 2024, denying an extension of time to bring an application for judicial review (the “Motion Decision”). The review motion was dismissed by the Panel at the oral hearing, with reasons to follow. These are those reasons.

[2] The review motion was brought under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C. 43. The moving party has put forward additional evidence in support of the motion that was not before the motion judge. Both the motion and the attempt to put forward additional evidence were disputed.

[3] The moving party sought an extension of time to apply for judicial review of a decision of the City of Toronto Council dated May 10, 2023 (the “Council Decision”).

[4] As a result of prior City Council decisions, the developer brought two appeals to the Ontario Land Tribunal (OLT), one of which related to a heritage designation and the other to a condominium development proposal. There was a mediation. The developer then proposed a settlement of the appeals which included adjustments to the height of each of the three towers, an increase of rental placement units, a new public park and preservation of a portion of the façade of the building. The City Council considered the offer and decided to accept it, giving rise to the above Council Decision in May 2023.

[5] After the Council Decision, the resulting plan still needed to go to the OLT for its decision on the new plan.

[6] The moving party did not give notice that it wanted to seek judicial review of the Council Decision until July 31, 2023. The notice was late although the delay was not lengthy. The notice was given after the developer had withdrawn its appeal from the OLT based on the Council Decision and after the time to appeal had passed.

[7] Despite several requests from the City to move forward, the moving party did not give notice of an intention to seek the needed extension of time until August and did not serve a notice of motion until late September. While the extension of time steps were ongoing in this Court, so too were the proceedings at the OLT. The moving party sought an adjournment from the OLT but it was not considered. At the OLT hearing in October 2023, the moving party lost its party status because the moving party had failed to comply with the OLT’s timelines and failed to provide sufficient reasons for non-compliance.

[8] The OLT decision, dated October 17, 2023, approved the proposed By-Law amendment arising from the Council Decision. That OLT decision was not appealed by anyone with appeal rights and the moving party had lost any appeal rights when it lost party status.

[9] The motion for an extension of time proceeded in this Court. As set out in the Motion Decision, the motion judge set out the applicable principles for an extension of time to apply for judicial review, including the relevant section – s. 5(2) of the Judicial Review Procedure Act, R.S.O. 1990. C. J.1 – and the applicable law. After a detailed recounting of the background, the motion judge denied the extension of time.

[10] The motion judge found that the delay in serving notice of the proposed application for judicial review was adequately explained but the further delay was not. The motion judge further found prejudice because the motion record was served just weeks before the OLT hearing was to begin in October. Further, the developer was entitled to rely on the Council Decision and had withdrawn its appeal, relying on that Decision.

[11] The motion judge further found that there were no apparent grounds for relief in the proposed application for judicial review. The moving party’s application for judicial review was an attempt to challenge the prior Council Decision. The OLT had passed the amendment to the By-Law, which was not challenged. The moving party lost party status at the OLT due to its own action/inaction and impaired its own appeal rights. The motion judge observed that the proposed judicial review appeared to be an attempt to collaterally challenge the OLT decision. Further, and contrary to the moving party’s claims, the moving party did have notice of the motion to amend the By-laws, and there was no merit to the bad faith claim against the City.

[12] The moving party then sought this panel review.

[13] A motion under s. 21(5) is not a fresh opportunity to re-argue for the relief sought on the original motion. It is a review of the Motion Decision, with this standard of review:

(i) the Court will not intervene unless the motion judge made an error of law or palpable and overriding error of fact;

(ii) where the motion judge exercises discretion, a review panel will not interfere unless the moving party demonstrates that the decision is so clearly wrong that it amounts to an injustice or the motion judge gave no or insufficient weight to relevant considerations; and,

(iii) a single judge’s decision on a motion to extend time is discretionary and entitled to deference:

Lindsay v. Ecuhome Corporation, 2024 ONSC 6169 (Div. Ct), at para. 20, citing Rosen v. Reid, 2024 ONSC 5224 (Div. Ct), at para. 6; Khan v. 1806700 Ontario Inc., 2021 ONCA 724, at para. 2.

[14] We first address the evidentiary issue. Ordinarily, a review motion is decided on the record that was before the motion judge. On this motion, the moving party has included three affidavits from the same representative of the moving party. The first affidavit was before the motion judge and properly forms part of the motion record before this panel. The second is an affidavit that advances a “critique” of the Motion Decision, regarding both the facts and the law. It includes evidence that could have been put forward for the original motion, argument about the characterization of evidence, submissions about the significance of various steps, submissions about what is intended to be put forward in the application for judicial review and purported legal opinion, none of which is proper evidence on this review motion and much of which is not admissible evidence at all. The third affidavit puts forward more facts that could have been put forward on the extension motion.

[15] We are not persuaded that the second and third affidavits should be given any weight as evidence on this review motion.

[16] As for the grounds for this review, the moving party first submits that the motion judge erred in assessing the delay. The moving party submits that the relevant period of delay ends when it attempted to file a notice of application for judicial review at the end of July. The moving party submits that any delay after that date is irrelevant. This is not correct. The later delays may also be considered in the exercise of the discretion on the motion.

[17] The moving party also submits that the motion judge erred in finding that there was no evidence regarding the later delays. No such finding was made. The motion judge held that the delay in the early period was adequately explained but the later delay was not.

[18] The moving party then challenges the finding of prejudice, without addressing the motion judge’s reasons for those findings. The moving party submits that the City, as a public body, was obliged to consent to the delay and to the requested adjournment of the OLT hearing. The moving party then challenges the findings regarding apparent grounds for relief, submits that the City’s process was unfair, submits that the moving party did not get two reports considered in the Council proceedings, submits that there should have been reasons for decision for the Council Decision, and submits that the City was not entitled to have privileged legal advice. In our view, the moving party has not shown any legal error, palpable and overriding factual error or procedural unfairness. The moving party overlooks the stage of the proceedings of the Council Decision, the moving party’s opportunity to consult, the role of the later OLT hearing, and consequences of its own choices at each step.

[19] At a high level, the moving party submits that it is well-motivated and as a self-represented party did not know what it should have done and when, and that the City is responsible because it should have given it advice about how to proceed. As noted at the oral hearing in this Court, we have taken into account the status of the moving party as self-represented, even though its spokesperson is a lawyer, but even self-represented parties must inform themselves of the needed process.

[20] The threshold to succeed on this motion is high. None of the grounds advanced come close to showing that this panel should set aside or vary the Motion Decision. No error of law or palpable and overriding error of fact has been shown. The Motion Decision is not clearly wrong. The motion judge’s decision is discretionary and entitled to deference. The high threshold has not been met.

[21] As ruled at the oral hearing, this motion is dismissed with costs to the respondent fixed at $1,500, all inclusive.

Matheson J.

Bale J.

Nakatsuru J.

Date: April 9, 2025