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Appeal - Leave to Appeal - JR After Denied. Voices of Willowdale Inc. v. City of Toronto
In Voices of Willowdale Inc. v. City of Toronto (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this against an OLT decision "to adopt a zoning by-law to permit the construction of a three-story apartment building for people leaving homelessness. The new development would be in addition to the existing four-story building on the property, which houses 600 senior citizens.":
Here the issue was whether the court should exercise it's discretion to hear a JR after a leave to appeal application [under OLTA s.24] was dismissed (unusually, the OLTA has a leave requirement at the first level of court appeal):Should we exercise our discretion to hear the judicial review application in light of the ruling on the motion for leave to appeal?
[19] VOW brought a motion for leave to appeal under s. 24 of the OLTA, which permits an appeal to this Court, with leave, on questions of law.
[20] On May 17, 2024, the motion for leave to appeal was dismissed. As is the practice in this Court, no reasons were provided.
[21] The City argues that VOW should not be permitted to proceed with judicial review on issues of law it raised in its notice of application for leave to appeal. The City argues VOW had a route to appeal errors of law and is now estopped from raising the same issues for which they were denied leave. The City submits that judicial review is a remedy of last resort and this Court should not exercise its discretion to hear the judicial review application because VOW had a full opportunity to raise any legal errors in its leave application.
[22] The Tribunal also submits that the Applicant should not be permitted to raise the same issues in their judicial review application that were raised in its leave motion.
[23] In Vavilov, the Supreme Court of Canada held that a right of appeal on a question of law does not preclude an individual from seeking judicial review for questions not dealt within the appeal.
[24] This Court was faced with a decision whether to consider an application for judicial review even though a statutory appeal had been filed, in Shearer v. Oz, 2024 ONSC 1723. In Shearer, both the appeal and the application for judicial review were before the same Divisional Court panel. The Court heard the appeal on a question of law. The Court also exercised its jurisdiction to hear the application for judicial review on questions of fact or mixed fact and law. Corbett J., stated at para. 32 that:In respect to the application for judicial review, this court will not entertain the application to the extent that its substance is addressed adequately by another process. In this case, the "other process" is the appeal. The only issues before us that could form a basis for judicial review that this court will entertain, therefore, are questions of fact, mixed fact and law (where there is no extricable question of law) and exercises of discretion, all of which are reviewed on a standard of reasonableness in an application for judicial review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. [25] This Court dismissed VOW's motion for leave to appeal without reasons. In oral argument during this application hearing, the City conceded that some of the issues raised in the motion for leave to appeal were ones of mixed fact and law and, therefore, outside the scope of a statutory appeal. I am satisfied that all the issues raised in this application for judicial review are either questions of fact, or questions of mixed fact and law with no extricable questions of law. Those issues could not have been dealt with in an appeal under s. 24 of the OLTA. Judicial review is still available to VOW on issues of fact, or mixed fact and law and the principle of issue estoppel does not arise. As a result, I find that this is an appropriate case in which to exercise our discretion to hear the application for judicial review notwithstanding the unsuccessful application for leave to appeal: Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 SCR 713.
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