Court File and Parties

COURT FILE NO.: CV-19-00617323 DATE: 20200115 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

1884901 ALBERTA LTD. o/a PARK’N FLY Applicant – and – PARK2SKY INC., 2273865 ONTARIO INC., and FRANK BOSSO Respondents

COUNSEL: Jonathan S. Cheng, for the Applicant Ian J. Perry, for the Respondents

HEARD: December 2, 2019

BEFORE: Koehnen J.

Reasons for Judgment

[1] The Applicant Park’N Fly owns and operates three parking lots close to Lester B. Pearson airport in Toronto.

[2] The Respondent Park2Sky Inc. operates a competing parking lot at 615 Dixon Rd. (the “Property”) in the same municipal ward as Park’N Fly’s lots. The respondent 2273865 Ontario Inc. (“227 Inc.”) is the owner of the land on which Park2Sky operates its parking lot. The respondent Frank Bosso is the sole director and officer of each of Park2Sky and 227 Inc.

[3] The applicant seeks an injunction restraining the respondents from operating the parking lot. The applicant submits that the respondents’ parking lot violates the applicable zoning by-law.

[4] The respondent 227 Inc. purchased the Property on February 28, 2011. At the time, the Property was governed by the City of Etobicoke Zoning Code which would have permitted the Property’s use as a parking lot.

[5] On May 9, 2013, the City enacted Zoning By-law No. 569-2013, as amended (the “Citywide By-law”). The Citywide By-law changed the zoning applicable to the Property so as to prohibit its use as a parking lot.

[6] The respondents did not begin operating a parking lot on the Property until sometime after June 2016.

[7] The time lag is significant. Section 34(9)(a) of the Planning Act, R.S.O. 1990, c. P.13 codifies the concept of a legal nonconforming use. It provides that no by-law passed under s. 34 prevents any land from being used for a purpose prohibited by the by-law if such land was lawfully used for such purpose on the day the by-law was passed. In other words, had the Property been used as a parking lot before May 9, 2013, the Citywide By-law would not have restricted the use of the Property as a parking lot. As noted above, however, the respondents did not use the Property as a parking lot between the time they purchased it and passage of the Citywide By-law. They did not begin using it as a parking lot until five years after they purchased it and three years after the Citywide By-law was passed.

[8] The respondents nevertheless submit that they are entitled to use the Property as a parking lot because they have filed an appeal against the Citywide By-law with the Local Planning Appeal Tribunal. Both sides agree that, if a valid appeal is pending, then the Property continues to be governed by the City of Etobicoke Zoning Code which permits operation of a parking lot on the Property.

[9] The applicant submits that the respondents do not have a valid appeal before the Local Planning Appeal Tribunal.

[10] Section 34(19) of the Planning Act sets out an exhaustive list of persons who may appeal a zoning by-law:

Appeal to L.P.A.T.

(19) Not later than 20 days after the day that the giving of notice as required by subsection (18) is completed, any of the following may appeal to the Tribunal by filing with the clerk of the municipality a notice of appeal setting out the objection to the by-law and the reasons in support of the objection, accompanied by the fee charged under the Local Planning Appeal Tribunal Act, 2017:

1. The applicant.
2. A person or public body who, before the by-law was passed, made oral submissions at a public meeting or written submissions to the council.
3. The Minister.

[11] The respondents could possibly fit under clause 2 of s. 34(19) but admit that they did not make oral submissions at a public meeting or written submissions to City Council before the Citywide By-law was passed.

[12] As a result, submits the applicant, the respondents do not have a valid appeal before the Local Planning Appeal Tribunal. The applicants point out that the Divisional Court has held that there is no discretion to depart from the requirement that a valid appeal requires the appellant to have made submissions to Council: Liddy v. Vaughan (City), 2015 ONSC 5839 at para. 6. As Justice D. L. Corbett noted in Liddy, until 2006, the Planning Act did give the Ontario Municipal Board (the predecessor to the Local Planning Appeal Tribunal) discretion to relieve appellants from the strict application of this provision. That discretion was removed in 2006.

[13] In Liddy, the property owner did not make submissions to Council but did participate in public consultations and meetings. She submitted that this met the test of having made oral or written submissions to Council. The Board disagreed and found that the owner could not appeal because she had not made submissions to City Council. Corbett J. upheld the Board’s decision as manifestly reasonable. He noted that the Board’s approach was consistent with five previous Board decisions: Re Loblaw Properties (2011), 68 OMBR 473, Re North Kawartha Township, 2014 Carswell Ont. 9243, Re Mulmur Township By-law No. 50-13 (2014), 81 OMBR 340, Re Mattamy Realty Ltd. (2012), 72 OMBR 75, and Re Ontario (Minister of Municipal Affairs and Housing, [2011] OMBD 778.

[14] Corbett J. explained the stringent standing requirements as follows at para. 8:

It reflects the purpose of the standing requirement, which is to ensure that matters are decided at first instance by City Council and it makes it more practical for the City to know and give personal notice to all persons with standing to bring an appeal. As is reflected in the cases and in the history of the case at bar, the planning process for a large project, such as a public hospital, affords members of the public many opportunities and ways to make their views known. Only addressing City Council orally or in writing in respect of the by-law itself, however, will give someone legal standing for an appeal of the by-law under s. 34(19) 2.

[15] The OMB expounded on the standing requirement in Ryan Humberstone v. Halton Hills (Town), 2017 CarswellOnt 20316 (O.M.B.) at paras. 5-8:

[5] Section 34(19) of the Act, regarding appeals to a Zoning By-law, specifically restricts the right of appeal to three types of persons: the Minister of Municipal Affairs, the applicant, and “a person or public body who, before the by-law was passed, made oral submissions at a public meeting or written submissions to the council.” The same requirements are found in s. 51(39) of the Act regarding the right of appeal to a subdivision.

[6] The onus on a person to voice concerns at a public meeting on an application, or to provide written comments to the council before the decision is made, has been referred to as the “speak early” clause in the Act. Its intent, in part, is to ensure that the municipal council is aware of all of the information and concerns pertaining to an application to enable issues to be considered or addressed before or in the decision. It also ensures that persons cannot remain silent during the review process of an application and then file an “11th hour” appeal for which the council had no opportunity to consider or address. Good planning requires full input, and the speak early clause encourages input in oral or written form, and then allows only those persons to appeal who remain unsatisfied after having given council an opportunity to consider their concerns.

[7] This matter has been addressed in several Board decisions. In Angus Glen North West Inc. v. York (Municipality) [2011] O.M.B.D. No. 861, the Board noted in paragraph 13 “The requirement for making oral or written submissions is absolute and not provisional. Anyone … who has not adhered to this formality, is barred from appealing.” After a similar finding of the Board in Liddy v. Vaughan (City) [2014] O.M.B.D. No. 729, the Divisional Court denied leave to appeal in Liddy v. Vaughan (City), [2015] O.J. No. 5289, having upheld the Board’s decision that the appellant did not have standing because she neither spoke at the public meeting for the application nor made written submissions to council on the application.

[8] Thus the law is clear, through a plain reading of the Act, the consistent findings of the Board, and the binding decision of the Divisional Court, that an appeal is valid only if the person filing the appeal has satisfied the prerequisite conditions of the Act. The Board has no discretion in dismissing an appeal where the appellant did not participate in the process before the council made its decision. To find otherwise, the Board would be creating an appeal, for which it has no jurisdiction.

[16] Despite the apparent invalidity of the respondents’ appeal, I nevertheless find myself unable to grant the applicants the relief they seek.

[17] As noted earlier, an appeal allows the respondents to shelter under the City of Etobicoke Zoning Code until the appeal is disposed of.

[18] Given the history of the legislation, the decisions of the Ontario Municipal Board and the decision of the Divisional Court in Liddy, I can fully understand the applicant’s view that the respondent has no standing to appeal. That, however, is a decision that should be made by the Local Planning Appeal Tribunal. Section 11(1) of the Local Planning Appeal Tribunal Act, 2017, S. O. 2017, c. 23 provides:

The Tribunal has exclusive jurisdiction in all cases and in respect of all matters in which jurisdiction is conferred on it by the Act or by any other general or special Act.

[19] I am sensitive to the frustration the applicants will feel as a result of this decision. They will no doubt feel that it is unreasonable to force them to wait while the respondents continue to act in flagrant violation of a zoning by-law. Given that there are over 266 appeals outstanding against the Citywide By-law, it may take some time to deal with the respondents’ appeal.

[20] We have, however, as a society created a system of administrative tribunals and courts with a division of jurisdiction and power between them. As much as I may feel that I want to assist the applicant, to do so would undermine the system of administrative law we have created. To provide the applicant with relief would invite anyone interested in an administrative proceeding but who is unhappy with the speed at which it is moving, to devise an argument to have the court dismiss the administrative proceeding. It is a fundamental tenet of administrative law that administrative tribunals are responsible for their own procedure and substantive decisions. Section 11(1) of the Local Planning Appeal Tribunal Act makes this clear by according to the tribunal “exclusive jurisdiction… in respect of all matters” conferred to it. Section 11(2) goes on to provide:

The Tribunal has authority to hear and determine all questions of law or of fact with respect to all matters within its jurisdiction, unless limited by this Act or any other general or special Act.

[21] The validity of an appeal or the standing of a person to bring an appeal are questions of law or fact that are within the jurisdiction of the Tribunal. No matter how meritorious the applicant’s position may be, the legislature has decided to confer that power on the Tribunal, not on the courts. There are good policy reasons for that division of powers. Any policy or division of powers will inevitably entail some inconvenience. This is a situation in which the applicant is being faced with inconvenience arising out of the division of jurisdiction between administrative tribunals and the courts. I underscore that this is a case of inconvenience to the applicant. I have been provided no evidence of any injustice, threat to health or safety or even threat to the applicant’s business that might change this calculus.

[22] I note that the applicant is not without a remedy. The Planning Act allows nonparties to make written submissions to the Tribunal. In the appropriate circumstances parties may also apply to the Divisional Court for orders in the nature of mandamus compelling a decision maker to act.

[23] As an alternative remedy, the applicant has asked me to adjourn the application sine die to permit the applicant to seek an order from the Tribunal. In my view that is the most appropriate way of proceeding because it respects the distinction of jurisdiction between administrative tribunals and courts. I therefore adjourn the application sine die to permit the applicant to bring whatever other form of proceeding(s) it may feel appropriate to address the respondents’ appeal to the Local Land Appeals Tribunal.

Costs

[24] The applicants submit that, if the matter is adjourned, each party should bear its own costs without prejudice to either party’s right to seek costs after the Tribunal addresses the issue. The respondents submit that, if the application is adjourned on terms, they would like the opportunity to make written submissions on costs.

[25] If, in light of these reasons, either party would like to make submissions on costs before the Tribunal addresses the respondents’ appeal, they may provide me with written submissions within 10 days of the release of these reasons. A responding party will have seven days to respond with an additional three days for reply.

Koehnen J. Released: January 15, 2020